Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 75954 October 22, 1992
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial
Court, Branch 52, Manila, and K.T. LIM alias MARIANO
LIM, respondents.
BELLOSILLO, J.:
Failing in his argument that B.P. 22, otherwise known as the
"Bouncing Check Law", is unconstitutional, 1 private respondent
now argues that the check he issued, a memorandum check, is
in the nature of a promissory note, hence, outside the purview of
the statute. Here, his argument must also fail.
The facts are simple. Private respondent K.T. Lim was charged
before respondent court with violation of B.P. 22 in an Information
alleging
That on . . . January 10, 1985, in the City of Manila . . .
the said accused did then and there wilfully, unlawfully and
feloniously make or draw and issue to Fatima Cortez Sasaki . . .
Philippine Trust Company Check No. 117383 dated February 9,
1985 . . . in the amount of P143,000.00, . . . well knowing that at
the time of issue he . . . did not have sufficient funds in or credit
with the drawee bank . . . which check . . . was subsequently
dishonored by the drawee bank for insufficiency of funds, and
despite receipt of notice of such dishonor, said accused failed to
pay said Fatima Cortez Sasaki the amount of said check or to
make arrangement for full payment of the same within five (5)
banking days after receiving said notice. 2
On 18 July 1986, private respondent moved to quash the
Information of the ground that the facts charged did not constitute
a felony as B.P. 22 was unconstitutional and that the check he
issued was a memorandum check which was in the nature of a
promissory note, perforce, civil in nature. On 1 September 1986,
respondent judge, ruling that B.P. 22 on which the Information
was based was unconstitutional, issued the questioned Order
quashing the Information. Hence, this petition for review
on certiorari filed by the Solicitor General in behalf of the
government.
Since the constitutionality of the "Bouncing Check Law" has
already been sustained by this Court in Lozano v.Martinez 3 and
the seven (7) other cases decided jointly with it, 4 the remaining
issue, as aptly stated by private respondent in his Memorandum,
is whether a memorandum check issued postdated in partial
payment of a pre-existing obligation is within the coverage of B.P.
22.
Citing U.S. v. Isham, 5 private respondent contends that although
a memorandum check may not differ in form and appearance

from an ordinary check, such a check is given by the drawer to

the payee more in the nature of memorandum of indebtedness
and, should be sued upon in a civil action.
We are not persuaded.
A memorandum check is in the form of an ordinary check, with
the word "memorandum", "memo" or "mem" written across its
face, signifying that the maker or drawer engages to pay
the bona fide holder absolutely, without any condition concerning
its presentment. 6 Such a check is an evidence of debt against
the drawer, and although may not be intended to be
presented, 7 has the same effect as an ordinary check, 8 and if
passed to the third person, will be valid in his hands like any
other check. 9
From the above definition, it is clear that a memorandum check,
which is in the form of an ordinary check, is still drawn on a bank
and should therefore be distinguished from a promissory note,
which is but a mere promise to pay. If private respondent seeks
to equate memorandum check with promissory note, as he does
to skirt the provisions of B.P. 22, he could very well have issued a
promissory note, and this would be have exempted him form the
coverage of the law. In the business community a promissory
note, certainly, has less impact and persuadability than a check.
Verily, a memorandum check comes within the meaning of Sec.
185 of the Negotiable Instruments Law which defines a check as
"a bill of exchange drawn on a bank payable on demand." A
check is also defined as " [a] written order or request to a bank or
persons carrying on the business of banking, by a party having
money in their hands, desiring them to pay, on presentment, to a
person therein named or bearer, or to such person or order, a
named sum of money," citing 2 Dan. Neg. Inst. 528; Blair
v. Wilson, 28 Gratt. (Va.) 170; Deener v. Brown, 1 MacArth.
(D.C.) 350; In re Brown, 2 Sto. 502, Fed. Cas. No.
1,985. See Chapman v. White, 6 N.Y. 412, 57 Am. Dec
464. 10 Another definition of check is that is "[a] draft drawn upon
a bank and payable on demand, signed by the maker or drawer,
containing an unconditional promise to pay a sum certain in
money to the order of the payee," citing State v.Perrigoue, 81
Wash, 2d 640, 503 p. 2d 1063, 1066. 11
A memorandum check must therefore fall within the ambit of B.P.
22 which does not distinguish but merely provides that "[a]ny
person who makes or draws and issues any check knowing at
the time of issue that he does not have sufficient funds in or
credit with the drawee bank . . . which check is subsequently
dishonored . . . shall be punished by imprisonment . . ."
(Emphasis supplied ). 12 Ubi lex no distinguit nec nos distinguere
debemus.
But even if We retrace the enactment of the "Bouncing Check
Law" to determine the parameters of the concept of "check", We
can easily glean that the members of the then Batasang
Pambansa intended it to be comprehensive as to include all
checks drawn against banks. This was particularly the
ratiocination of Mar. Estelito P. Mendoza, co-sponsor of Cabinet
Bill No. 9 which later became B.P. 22, when in response to the
interpellation of Mr. Januario T. Seo, Mr. Mendoza explained
that the draft or order must be addressed to a bank or

depository, 13 and accepted the proposed amendment of Messrs.

Antonio P. Roman and Arturo M. Tolentino that the words "draft or
order", and certain terms which technically meant promissory
notes, wherever they were found in the text of the bill, should be
deleted since the bill was mainly directed against the pernicious
practice of issuing checks with insufficient or no funds, and not to
drafts which were not drawn against banks. 14
A memorandum check, upon presentment, is generally accepted
by the bank. Hence it does not matter whether the check issued
is in the nature of a memorandum as evidence of indebtedness
or whether it was issued is partial fulfillment of a pre-existing
obligation, for what the law punishes is the issuance itself of a
bouncing check 15 and not the purpose for which it was issuance.
The mere act of issuing a worthless check, whether as a deposit,
as a guarantee, or even as an evidence of a pre-existing debt,
is malum prohibitum. 16
We are not unaware that a memorandum check may carry with it
the understanding that it is not be presented at the bank but will
be redeemed by the maker himself when the loan fall due. This
understanding may be manifested by writing across the check
"Memorandum", "Memo" or "Mem." However, with the
promulgation of B.P. 22, such understanding or private
arrangement may no longer prevail to exempt it from penal
sanction imposed by the law. To require that the agreement
surrounding the issuance of check be first looked into and
thereafter exempt such issuance from the punitive provision of
B.P. 22 on the basis of such agreement or understanding would
frustrate the very purpose for which the law was enacted to
stem the proliferation of unfunded checks. After having effectively
reduced the incidence of worthless checks changing hands, the
country will once again experience the limitless circulation of
bouncing checks in the guise of memorandum checks if such
checks will be considered exempt from the operation of B.P. 22. It
is common practice in commercial transactions to require debtors
to issue checks on which creditors must rely as guarantee of
payment. To determine the reasons for which checks are issued,
or the terms and conditions for their issuance, will greatly erode
the faith the public responses in the stability and commercial
value of checks as currency substitutes, and bring about havoc in
trade and in banking communities. 17
WHEREFORE, the petition is GRANTED and the Order of
respondent Judge of 1 September 1986 is SET ASIDE.
Consequently, respondent Judge, or whoever presides over the
Regional Trial Court of Manila, Branch 52, is hereby directed
forthwith to proceed with the hearing of the case until terminated.
EN BANC
[G.R. No. 127122. July 20, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOVITO
LOSANO y NACIS accused-appellant.
DECISION
PER CURIAM:

Despite the growing number of individuals in Death Row for

incestuous rape of minors, the number of these corrupt perverts
hardly seems to have diminished. Before us yet again is another
loathsome example of a mans lechery so depraved, it exposes
him to be nothing more than a ravenous beast masquerading as
a man.
On March 13, 1996, accused-appellant Jovito Losano y
Nacis was charged with the despicable crime of raping his own
daughter under the following information:
That sometime in may, 1995, in Barangay Alipangpang,
Municipality of Pozorrubio, Province of Pangasinan and within
the jurisdiction of this Honorable Court, the above-named
accused, by means of force and intimidation, did then and there,
willfully, unlawfully and feloneously (sic) have carnal knowledge
of private complainant, ROWENA LOSANO, daughter of
accused, then being only 6 years of age, all against her will and
without her consent.
CONTRARY to Law.[1]
Upon his arraignment on August 26, 1996, accusedappellant entered a plea of not guilty. Trial thereafter ensued, with
the prosecution presenting as its witnesses the victim, Rowena
Losano, and her grandmother, Veronica Losano. Their
testimonies show the following:
Rowena is the daughter of accused-appellant and Rosita
Losano, their third child a brood of four. At the time of the alleged
rape, Rowena was only six years old, having been born on April
17, 1990. Veronica Losano, on the other hand, is the
grandmother of Rowena, accused-appellant being her
son. Veronica testified that on September 25, 1995, while they
were in Baguio City, Rowena told her that her father had mashed
her breast and removed her panties. Upon further questioning,
Rowena added that her father had inserted his penis inside
her. To verify whether or not Rowena was telling the truth,
Veronica and her daughter Priscilla Fetalino, brought Rowena to
the Baguio City office of the NBI to have her examined. Dr.
Ronald Bandonill, an NBI medico-legal officer, conducted the
medical examination on October 3, 1995. The medical certificate
issued by Dr. Bandonill states that 1) at the time of the
examination, there were no extra-genital physical injuries on
Rowenas body; and 2) that her physical virginity was
preserved. It did, however, remark that:
The presence of congestion and inflammation at the vestibular
mucosa and the hymenal area coupled with intense pain and
tenderness indicates the probability of attempted penetration of
the area by the hard erect male organ which was not successful,
since it would produce massive genital injury.[2]
Veronica stated that the alleged rape incident took place at
her house in Barangay Alipangpang, Pozorrubio, Pangasinan. On
cross-examination, Veronica admitted not having personal
knowledge of the alleged rape, having only been informed
thereof by her granddaughter. She also said that Rowenas
mother was in Kuwait, having gone there in 1995, and that up to
the time of the trial, the latter had not yet returned.

When put on the witness stand, Rowena testified that while

she was staying at their house in Barangay Alipangpang, she
remembered her father removing her dress and panties, fondling
her breasts and getting on top of her. She remembered seeing
his sex organ and having it inserted inside her. She said she felt
pain when he did so. Rowena testified that her father told her not
to tell anybody, otherwise he would kill her. On further
questioning, she said her father inserted his penis inside her
everyday.
On cross-examination, Rowena testified that her father had
raped her at nighttime. She said that while she was sleeping with
her sister Maricel, and their grandmother Veronica, in a room on
the second floor of their house, her father carried her outside and
raped her. She said her grandmother woke up when she was
carried outside the room by her father.
Testifying in his own behalf, accused-appellant said that he
loved his children and that he could not have raped Rowena, the
latter being his daughter. He claimed that the charge of rape was
filed to discredit him and that he was the victim of a
frameup. Accused-appellant stated that his mother Veronica and
his sister Priscilla held a grudge against him, thus, their filing of
the rape case. In elaboration, accused-appellant claimed that
Priscilla wanted to buy from him a karaoke, a Walkman, and
several watches, items that he had brought back from Saudi
Arabia, at a very low price. He, however, declined. Instead, he
sold these items to a third person for a higher price. From then
on, according to accused-appellant, bad blood ran between him
and Priscilla. Accused-appellant further testified that Veronica
and Priscilla had asked him to sign a document selling their land,
which request he had not acceded to. He also explained that his
mother and sister claimed the money that his wife sent him every
month.
On cross-examination, accused-appellant admitted that his
daughter Rowena was six years of age. Likewise, he testified that
his wife had gone to Kuwait in 1993. Lastly, accused-appellant
admitted that his other daughter Maricel, age 11, had filed a
criminal case for acts of lasciviousness against him. Sometime
during the proceedings, accused-appellants counsel adopted the
medical certificate issued by Dr. Bandonill as their Exhibit 1 to
prove the absence of spermatozoa in the sex organ of Rowena.
On September 27, 1996, the trial court rendered a decision,
the dispositive portion of which reads as follows:
WHEREFORE, the Court finds the accused, JOVITO LOSANO y
NACIS, GUILTY beyond reasonable doubt of the crime of RAPE
defined and penalized under Republic Act No. 7659, the offense
having been committed with the attendant aggravating
circumstances of when the woman is under twelve years old and
when the victim is under eighteen (18) years of age and the
offender is a parent, (sic) hereby sentences him to suffer the
supreme penalty of DEATH to be executed pursuant to Rep. Act
No. 8177 known as the Lethal Injection Law, to pay the
complainant, ROWENA LOSANO in the amount of P50,000.00
as damages, and to pay the costs.
And the word of the law, it is said:

Dura lex, sed lex, interpreted as: The law is harsh (sic) but that
(sic) is the law.
SO ORDERED.[3]
The penalty of death having been imposed, the decision is
now before us for automatic review, pursuant to Article 47 of the
Revised Penal Code and Section 1(e), Rule 122 of the Rules of
Court. The Free Legal Assistance Group (FLAG) Anti-Death
Penalty Task Force submitted a brief on behalf of the accusedappellant. In seeking a reversal of the September 27, 1996
decision, it raises the following as errors of the trial court:
1. THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT OF
AN OFFENSE NOT CHARGED IN THE
INFORMATION;
2. THE TRIAL COURT GRAVELY ERRED IN GIVING
FULL WEIGHT AND CREDENCE TO THE
TESTIMONY OF THE PRIVATE COMPLAINANT
AND
IN
DISREGARDING
ITS
INCONSISTENCIES;
3. THE TRIAL COURT MANIFESTED BIAS,
THEREBY
DEPRIVING
THE
ACCUSEDAPPELLANT OF HIS RIGHT TO A FAIR AND
IMPARTIAL TRIAL AND VIOLATING HIS RIGHT
TO BE PRESUMED INNOCENT, WHEN IT LED
THE ACCUSED-APPELLANT TO ADMIT A
MEDICO-LEGAL EXAMINATION REPORT THAT
IT LATER USED TO CONVICT HIM;
4. THE TRIAL COURT GRAVELY ERRED IN
FINDING THAT THE ACCUSED-APPELLANT
HAD THE PROPENSITY TO SEXUALLY ABUSE
HIS CHILDREN ON THE BASIS OF A PENDING
CASE OF ACTS OF LASCIVIOUSNESS FILED
AGAINST HIM BY ANOTHER CHILD, AND IN
USING SAID FINDING TO CONVICT THE
ACCUSED-APPELLANT.
After a thorough and painstaking review of the evidence on
record, as well as of the arguments advanced by the FLAG AntiDeath Penalty Task Force and by the Solicitor General, we
resolve to affirm the judgement of conviction.
In support of his allegation that he was convicted of an
offense not charged in the information, accused-appellant notes
that he was charged with having committed rape sometime in
May 1995, in Barangay Alipangpang, Municipality of
Polyzoarium, Pangasinan. He, however, asserts that the
prosecution failed to prove that he had committed rape sometime
in May 1995. If ever accused-appellant raped his daughter, he
claims that this did not occur in May but much later. In support of
his argument, accused-appellant points to the medico-legal
report, which puts the time of commission of the alleged rape at
sometime in August 1995. Furthermore, accused-appellant
alleges that the congestion and inflammation at the vestibular
mucosa and the hymenal area coupled with intense pain and

tenderness mentioned in the medico-legal report would have long

disappeared if the rape had occurred sometime in May, four
months before the medical examination. Lastly, accusedappellant points to the testimonies of the prosecution witnesses
themselves as indicative that the alleged rape took place much
later than May 1995.
Veronica Losano:
Q: Now, Madam Witness, between the period of September
25, 1995 can you recall if there was anything unusual
that happened?
A: Yes, sir.
Q: What was that unusual incident about, Madam Witness?
A: My granddaughter told me that her breasts were mashed
and her panties were removed, sir.
xxx xxx xxx
Q: Now, what else did your granddaughter, Rowena, tell you
aside from telling that the accused Jovito Losano, her
own father, mashed her breasts and remove her
panties?
A: My granddaughter told me that after the accused mashed
her breasts he inserted his penis in the organ of my
granddaughter, sir.[4]
Rowena Losano:
Q: How many times did your father insert his penis to your
vagina?
A: Everyday, sir.
Q: And after the length or rather after the last time that he did
that to you you informed your grandmother about it?

time at which the offense was committed except when time is a

material ingredient of the offense, but the act may be alleged to
have been committed at any time as near to the actual date at
which the offense was committed as the information or complaint
will permit.
Thus, early as 1903, this Court has ruled that while the
complaint must allege a specific time and place when and where
the offense was committed, the proof need not correspond to this
allegation, unless the time and place is material and of the
essence of the offense as a necessary ingredient in its
description. Evidence so presented is admissible and sufficient if
it shows 1) that the crime was committed at any time within the
period of the statute of limitations; and 2) before or after the time
stated in the complaint or indictment and before the action is
commenced.[7]
Unfortunately for accused-appellant, the date of
commission is not an essential element of the crime of rape,
[8]
what is material being the occurrence of the rape, not the time
of commission thereof.[9] Hence, proof as to the time of rape need
not correspond to the allegation in the information. Likewise, the
rape was committed within the period provided by the statute of
limitations. It may also be observed that while the rape proven
occurred after the time stated in the complaint, the action was
commenced after the rape incident had transpired.
Additionally, it is too late in the day for accused-appellant to
object to his conviction on the basis of the erroneous date
charged in the information. Sections 1 and 3(d) of Rule 117 of the
Rules of Court provides:
Section 1. Time to move to quash. At any time before entering
his plea, the accused may move to quash the complaint or
information.
Section 3. Grounds. The accused may move to quash the
complaint or information on any of the following grounds:
xxx xxx xxx
d) That it does not conform substantially to the prescribed form;

[5]

A Yes, sir. (Italics accused-appellants)

From the foregoing, accused-appellant draws the
conclusion that what the prosecution may have proved was a
rape that occurred sometime in August or September, much later
than May 1995, an offense he considers different from that which
was alleged in the information. Drawing on the principle that an
accused cannot be convicted for an offense not charged in the
information, no matter how conclusive and convincing the
evidence of guilt,[6] accused-appellant argues that his conviction
should be reversed.
Accused-appellants argument holds no water. Section 11 of
Rule 110 of the Rules of Court provides:
Section 11. Time of the commission of the offense.- It is not
necessary to state in the complaint or information the precise

xxx xxx xxx (Italics ours)

Likewise, Section 8 of Rule 117 provides:
Section 8. Failure to move to quash or to allege any ground
therefor. The failure of the accused to assert any ground of a
motion to quash before he pleads to the complaint or information,
either because he did not file a motion to quash or failed to allege
the same in said motion shall be deemed a waiver of the grounds
of a motion to quash, except the grounds of no offense charged,
lack of jurisdiction over the offense charged, extinction of the
offense or penalty and jeopardy, as provided for in paragraphs
(a), (b), (f) and (h) of Section 3 of this Rule. (Italics ours)
Section 3(d) of Rule 117 refers to the formal parts of a
complaint or information provided for in Sections 6 to 12 of Rule
110. These include, among others, the time of the commission of

the offense. In accordance with the above-mentioned sections,

accused-appellant should have filed a motion to quash the
information on the ground that it alleged an erroneous date,
before he entered his plea. Accused-appellant, however, did not
file a motion to quash. Instead, he had himself arraigned,
entering a plea of not guilty to the crime of rape. Such being the
case, accused-appellant has waive his right to object to the
information on the ground of an error as to the time of the alleged
rape.

A: Yes, sir.

When there is a variance between the allegation of the

information and the evidence of the prosecution with respect to
the time when the crime was committed, and the accused
interposed a timely objection to such variance and showed that it
was prejudicial to his interest in that it deceived him and
prevented him from having a fair opportunity to defend himself,
the trial court may, in the exercise of sound discretion, order the
information amended so as to set forth the correct date and may
grant an adjournment for such a length of time as will enable the
defendant to prepare himself to meet the variance in date which
was the cause of his surprise. But if the accused himself offers
no objection to such a variance and no relief is asked, and that in
place of objection the accused accepts the issue and enters
upon his defense and produces his witnesses, giving evidence
with regard to the very transaction concerning which the
prosecutions witnesses had offered their testimony, an objection
raised for the first time in the appellate court based on such
variance is untenable.[10]

Atty. Padilla

It is likewise, erroneous for accused-appellant to claim that

what the prosecution was able to prove was an offense different
from that charged in the information. If the date of the
commission of a crime is erroneously set forth in the information,
the fact that the prosecution proves the correct date does not
mean necessarily that an inference could legitimately be drawn
that two crimes had been committed. If the accused himself
offers no objection to such a variance it must be assumed that he
is not prejudiced thereby and that the change in date has in no
wise affected his ability or opportunity to defend himself. This is
especially true where, in place of objection, the accused accepts
the issue tendered by the evidence of the prosecution and
proceeds to meet it with evidence of his own. [11] Accusedappellant may not, thus, allege that he was convicted of an
offense different from that charged in the information.
In his second assignment of error, accused-appellant
characterizes Rowenas testimony as coached, the same having
been educed through leading questions propounded by the
prosecution.
Fiscal Matro

Q: Can you recall what your father did to you which is now
the subject of your complaint?
A: Yes, sir.
Q: What did your father Jovito Losano did (sic) to you?

I would like to manifest, your Honor, that the witness cannot

answer the question, despite reasonable time, your
Honor.
xxx xxx xxx
Fiscal Matro
Q: Do you remember that your father did something to you
while you were in your house in Alipangpang,
Pozorrubio, Pangasinan?
A: Yes, sir.
Q: Do you remember your father having removed your dress
and panties?
A: Yes, sir.
Q: After your father removed your panties what did he do to
you?
A: (No answer from the witness)
Q: Do you also remember your father fondling your breast?
A: Yes, sir.
Q: After your father fondled your breast, he made you lie
down, is it not?
A: Yes, sir.
Q: Then he also removed his pants and his brief, do you
remember that also?
A: Yes, sir.

Q: Are you the same Rowena Losano who is the complainant

in this case?

Q: And after that he went on top of you, is that correct?

A: Yes, sir.

A: Yes, sir.

Q: The one you (sic) accusing in this (sic) is Jovito Losano

who is your own father?

Q: Do you remember having seen his sex organ?

A: Yes, sir.

Q: After he went on top of you do you still remember what he

did to you?

rape, she certainly would have heard the cries of pain of her
granddaughter.

A: Yes, sir.

This Court has time and again ruled that the sole testimony
of the victim in a rape case is sufficient to sustain a conviction if
such testimony is credible.[15] By the very nature of rape cases,
conviction or acquittal depends almost entirely on the credibility
of the complainants testimony, the fact being that usually only the
participants thereto can testify as to its occurrence. [16] In the
instant case, the trial court found the testimony of Rowena to be
credible, possessing as they did all the semblance of truth. We
find no compelling reason to disturb the trial courts reliance on
Rowenas testimony, it being hornbook doctrine that the findings
of fact of the trial court is entitled to the highest respect, it being
in the best position to determine questions of credibility of
witnesses, having heard them and observed their department
and manner of testifying.[17]

Q: What did he do to you? Do you remember your father

inserting his penis to (sic) your vagina?
A: Yes, sir.
Q: What did you feel after that?
A: It was painful, sir.
Q: Was he able to insert his penis in whole to (sic) your
vagina?
A: Yes, sir.
Q: How long did he insert his penis to (sic) your vagina?
A: Brief (sic), sir.
Q: After that what did your father tell you?

Furthermore, the alleged inconsistencies pointed out by

accused-appellant pertain only to minor matters which strengthen
rather than weaken the credibility of Rowena. In any case, the
presence or absence of Veronica at the house where the alleged
rape took place does not detract from the fact that Rowenas
testimony points to accused-appellant as her assailant. When a
woman, especially if she is a minor, says that she has been
raped she says in effect all that is necessary to show that rape
was committed.[18]

A: He told me not to tell anybody otherwise he will kill me, sir.

Q: And after your father left the house, do you remember?
A: Yes, sir.
Q: How many times did your father insert his penis to your
vagina?
A: Everyday, sir.[12]
As a general rule, leading questions are not allowed. When
the witness is a child of tender years, however, it is proper for the
court to allow leading questions,[13] as it usually difficult for a child
of tender years to state facts without prompting or suggestion. In
the case at hand, Rowena is a child of tender years, being only
seven years old at the time of her testimony. As we have held
in People v. Vargas,[14] [c]hildren are naturally meek and
shy. They need patient and careful probing to encourage them to
talk in public about a traumatic experience. Indeed, recounting an
ordeal of rape in a courtroom is tremendously difficult and
devastating even for an adult woman Hence, we find nothing
wrong when the trial judge propounded probing questions to (the
victim) to coax truth out of her reluctant lips.
Accused-appellant also points to inconsistencies in the
testimony of Rowena as proof that the alleged rape never took
place. Accused-appellant juxtaposes Rowenas testimony saying
that her grandmother was awakened when her father came to
her room to get her with Veronicas testimony saying that she was
in Baguio at the time her granddaughter was raped.Accusedappellant also claim that he could not have raped his daughter for
if Rowenas grandmother was awake at the time of the alleged

Likewise, whether or not Veronica awoke when accusedappellant took his daughter out of the room will not and cannot
affect Rowenas credibility, as the same does not disprove that
the rape was not committed. And even if it were true that
Veronica awoke at the time accused-appellant carried his
daughter out of the room, no protest could have been
forthcoming, as the former probably did not know that accusedappellant was out to rape his own flesh and blood. Again, the
allegation that the rape could not have taken place due to the
proximity of Veronicas presence holds no water. The nearby
presence of people in a certain place is no guarantee that rape
will not and cannot be committed, [19] lust being no respecter of
time and place.
It may also be observed that for his defense, accusedappellant could only deny having raped his daughter. Wellentrenched is the rule that denial is inherently weak and easily
fabricated.[20] It becomes even weaker in the face if the positive
identification by the victim, Rowena, of accused-appellant as her
assailant.
We also reject accused-appellants contention that the rape
charge was due to the bad blood between him and his mother
and sister. No sister would be so depraved as to condemn a
brother to possible death for failure to sell a karaoke, Walkman
and watches at bargain basement prices. Neither would a mother
be so callous as to seal her sons doom for his refusal to sell a
piece of land. Lastly, it would be unlikely for Rowena, a sevenyear old, to fabricate a story of rape which would put her own
father on Death Row. As aptly stated by the trial court, [v]eritas
simplex oration est, the language of truth is simple, it can come
from the mouth of a child and the lips of the poor, simple and
unlettered.

In his third assignment of error, accused-appellant claims

that the trial court judge was biased against him, allegedly
because it peremptorily ordered his defense counsel to stipulate
to the medico-legal report since the findings therein were
negative, thereby depriving him of a chance to cross-examine the
doctor on the correctness of the latters findings. Accusedappellant claims these findings were used by the trial court in
convicting him, as follows:
It could now be deduced without contradiction that the accused
had really inserted his sexual organ upon the pudenda of his
daughter but he was hesitant to fully insert it considering the size
of his erected penis to that vagina of his 5 years and 1 month old
child as this would, according to the medical witness, produce
massive genital injury. Evidence would show that the accuseds
sex organ had penetrated slightly into his daughters vagina
because of the presence of congestion and inflammation at the
vestibular mucosa and the hymenal area coupled with the
intense pain and tenderness indicates the probability of
attempted penetration of the area by the hard erect male organ
which was not successful.[21]
The relevant testimony cited by accused-appellant to prove
the trial courts alleged bias is as follows:
Court
Who is your next witness, Fiscal?
Fiscal Matro
The doctor, Your Honor.
Court
Can you stipulate on this whether you agree or not? Anyway,
the finding there is negative. You stipulate now as to the
existence of Exhibit A. (Italics ours)
Atty. Padilla
Yes, Your Honor. We admit.
Court
Place on record that the Counsel for the accused is admitting
the existence of Exhibit A.[22]
While the trial courts denomination of the medico-legal
report as negative may not have been judicial nor judicious, it can
hardly be deduced from the above testimony that the court a
quo peremptorily ordered defense counsel to stipulate on the
medico-legal report. In fact, the Court was not addressing
defense counsel but the fiscal. It was defense counsel, however,
who admitted to the existence of the medico-legal report. In fact,
not only did defense counsel admit the existence of such report,
it would later on adopt the same as its own exhibit in order to
prove the absence of spermatozoa.[23] Accused-appellant cannot,

thus, denounce the judge for bias for the improvidence of his
counsel in adopting said medico-legal report.
Neither may accused-appellant repudiate the actions of his
counsel, it being within the competence of the latter to stipulate
on the existence of said medico-legal report, the same being a
mere procedural question. Well-settled is the rule that such
questions as what action or pleading to file, where and when to
file it, what are its formal requirements, what should be the
theory of the case, what defenses to raise, how the claim of
defense may be proved, when to rest the case, as well as those
affecting the competency of a witness, the sufficiency, relevancy,
materiality or immateriality of certain evidence and the burden of
proof are within the authority of the attorney to decide.
[24]
Whatever decision an attorney makes on any of these
procedural questions, even if it adversely affects a clients case,
will generally bind a client. More importantly, accused-appellants
conviction does not rest on this piece of evidence alone but on
the testimony of the victim herself.
Lastly, accused-appellant scores the trial court for holding
that he had the propensity to sexually abuse his children on the
basis of a pending case for acts of lasciviousness filed against
him by another child. Upon this particular, accused-appellant
raises a valid point. The trial court, in its assessment of the
evidence, found that accused-appellant had admitted that a case
for acts of lasciviousness had been filed against him. Based on
Section 34 of Rule 130 [25] providing that similar acts may be
received to prove a specific intent, plan, system, scheme, and the
like, the trial court drew the conclusion that the accused-appellant
had the propensity to prey on his daughters.
The admission of the accused-appellant that he was facing
a charge of acts of lasciviousness filed by his eleven-year old
daughter only proves that such a case was filed and pending with
the municipal court. It does not prove the propensity of the
accused-appellant to crave for his children. The pendency of the
case of acts of lasciviousness is not equivalent to evidence that
the accused-appellant was guilty of the same. In equating the
pendency of said case to his guilt thereof, the trial court ignored
the constitutional presumption of innocence afforded to the
accused-appellant.
The trial courts error on this point does not, however,
obliterate the fact that the prosecution was able to prove that
indeed, accused-appellant raped his daughter. In sum, we find no
reason to disturb the finding of the trial court that the guilt of the
accused-appellant has been proved beyond reasonable doubt.
As to the penalty imposed, Article 335, as amended by
Republic Act No. 7659, provides that the death penalty shall be
imposed if the rape victim is under eighteen years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or a
common-law spouse of the parent of the victim. The case at hand
is clearly within the ambit of Article 335, accused-appellant being
the father of the victim. Rowena who was only six years of age at
the time of the rape incident. The supreme penalty of death was,
thus, properly imposed upon accused-appellant.

With regard to the civil indemnity, recent jurisprudence has

held that where the crime of rape is committed or effectively
qualified by any of the circumstances under which the death
penalty is authorized, the civil indemnity to be awarded to the
victim is increased to P75,000.00.[26] We also find it proper to
award P50,000.00 as moral damages although proof of such
entitlement was not presented.[27]
Four members of the Court maintain their position that
Republic Act No. 7659, insofar as it prescribes the death penalty,
is unconstitutional; nevertheless they submit to the ruling of the
Court, by a majority vote, that the law is constitutional and that
the death penalty should be accordingly imposed.
WHEREFORE, premises considered, the judgment of the
trial court dated September 27, 1996 imposing the death penalty
on accused-appellant Jovito Losano y Nacis is hereby
AFFIRMED, with the MODIFICATION that accused-appellant
should indemnify the victim, ROWENA LOSANO, in the amount
of P75,000.00 as civil indemnity and P50,000.00 as moral
damages, respectively. Costs against the accused-appellant.
In accordance with Article 83 of the Revised Penal Code, as
amended by Section 25 of Republic Act No. 7659, upon finality of
this Decision, let a certified true copy thereof, as well as the
records of this case be forthwith forwarded to the Office of the
President for possible exercise of executive clemency.
SO ORDERED.

EN BANC
[A.C. No. 4017. September 29, 1999]
GATCHALIAN
PROMOTIONS
INC., complainant,
vs.
NALDOZA, respondent.

TALENTS
POOL,
ATTY.
PRIMO
R.

DECISION
PER CURIAM:
On April 19, 1993, Gatchalian Promotions Talents Pool, Inc.,
filed before this Court a Petition for disbarment against Attorney
Primo R. Naldoza. The precursor of this Petition was the action of
respondent, as counsel for complainant, appealing a Decision of
the Philippine Overseas Employment Agency (POEA). In relation
to the appeal, complainant asserts that respondent should be
disbarred for the following acts:
1. Appealing a decision, knowing that the same was
already final and executory
2. Deceitfully obtaining two thousand, five hundred
and fifty-five US dollars (US$2,555) from
complainant, allegedly for cash bond in the
appealed case

3. Issuing a spurious receipt to conceal his illegal act.

[1]

In his Answer,[2] respondent denies that he persuaded

complainant to file an appeal. On the contrary, he asserts that it
was the complainant who insisted on appealing the case in order
to delay the execution of the POEA Decision. [3] He also
controverts complainants allegation that he asked for a cash
bond and that he issued the fake receipt.[4]
In a Resolution dated May 17, 1993, this Court referred the
case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.
The pertinent portions of the complaint were summarized by
the IBP in this wise:
Under its petition, complainant alleges that the respondent was
given the task to defend the interest of the complainant
corporation in POEA Case No. 8888-06-468, entitled Olano, et al.
versus Gatchalian Promotions Talents Pool, Inc., et al.; that when
the said case was resolved in favor of the complainant therein on
October 5, 1992, the respondent Atty. Naldoza knowing fully well
that the said decision had already become final and
unappealable[,] through malpractice in [an] apparent desire to
collect or to bleed his client of several thousand pesos of
attorneys fees, convinced the complainant to appeal the case
before the Supreme Court. Thus, on December 14, 1992, the
respondent filed with the Supreme Court a Petition for Review
which was docketed as G.R. No. 107984 and that two (2) days
thereafter misrepresented to the complainant corporation that the
complainant ha[d] to pay, which it did, [a] Cash Bond in UNITED
STATES DOLLAR amounting to TWO THOUSAND FIVE
HUNDRED FIFTY FIVE (U.S. $2,555.00) to the Supreme Court
in order that the said appealed case could be heard or acted
upon by the Supreme Court. The said amount was given to the
respondent.
x x x [S]ubsequently the complainant corporation came to know
that the fees to be paid to the Supreme Court consist[ed] only of
normal filing and docket fees for such kind of appeal but in order
to cover up respondents misrepresentation, Atty. Naldoza
presented complainant a fake xerox copy of an alleged Supreme
court receipt representing payment of U.S. $2,555.00.
Subsequent verification from the Supreme Court made by the
complainant corporation revealed that the said receipt issued by
the treasurers office of the Supreme Court x x x [was] spurious,
meaning a fake receipt. The said verification revealed that what
was only paid by the respondent to the Supreme court was the
amount of P622.00 as shown by the enumerated legal fees of the
Supreme Court Docket-Receiving Section showing the
handwritten name of the respondent for purpose of showing that
the said computation was requested by and addressed to the
respondent.[5] (citations omitted)
Meanwhile, a criminal case[6] for estafa based on the same
facts was filed against herein respondent before the Regional
Trial Court (RTC) of Makati City, Branch 141. Although acquitted
on reasonable doubt, he was declared civilly liable in the amount
of US$ 2,555.

Thereafter, respondent filed before the IBP a Manifestation

with Motion to Dismiss on July 22, 1996, on the ground that he
had already been acquitted in the criminal case for
estafa.Complainant opposed the Motion.[7]
On February 16, 1998, this Court received the IBP Board of
Governors Resolution, which approved the investigating
commissioners report[8] and recommendation that respondent be
suspended from the practice of law for one (1) year. In his
Report, Investigating Commissioner Plaridel Jose justified his
recommendation in this manner:
x x x [R]espondent fails to rebut the position of the complainant
that the signature [on the receipt for the amount of $2,555.00]
was his. Hence, respondent anchors his position on a mere
denial that it is not his signature. Likewise, the respondent denies
the check voucher dated December 15, 1992, and the encircled
signature of the respondent, which x x x according to him is
falsified and irregular. No evidence, however, was presented by
the respondent that his signature therein was falsified and
irregular. [As to the altered Supreme Court Official Receipt, the
respondent denied] that he ha[d] anything to do with it because it
was the complainant who signed the Petition for Review and tried
to explain that his name appear[ed] to be the payee because he
[was] the counsel of record of the petitioner. But while it is true
that the affiant in the said Petition for Review [was] Mr. Rogelio
G. Gatchalian, president of the complainant company, the
respondent does not deny that he signed the said petition as
counsel of the petitioner corporation and that he was actually the
one who prepared the same and the notary public before whom
the affiant subscribed and [swore] as the one who caused the
preparation of the said petition.
The legal form (Exh. G) of the legal fees for the Petition for
Review re G.R. 107984 was denied by the respondent because
according to him he was never given a chance to cross-examine
the person who issued the [certification] x x x. However,
respondent does not deny that he is the person referred to by the
handwritten name P.R. Naldoza who paid the legal fees of
P622.00.
In addition to the said respondents Formal Offer of Evidence, he
submitted to this Commission as his most important piece of
evidence the Decision of acquittal in Criminal Case No. 93-8748
entitled People of the Philippines versus Primo R. Naldoza, the
copy of which Decision is appended to his Manifestation with
Motion to Dismiss dated July 22, 1996 praying for the dismissal
of the present administrative case in view of his being exonerated
in the said criminal case based on the same facts and evidence.
[9]
(citations omitted)
Commissioner Jose brushed aside respondents contention
that his acquittal in the companion criminal case should result in
the dismissal of this administrative complaint. The commissioner
emphasized that the criminal case for estafa [10] was completely
different from the proceedings before him; acquittal in the former
did not exonerate respondent in the latter.[11] He further noted that
the RTC Decision itself hinted at the administrative liability of
respondent, since it found him civilly liable to herein complainant
for $2,555.[12]

We agree with the IBP Board of Governors that respondent

should be sanctioned. However, the recommended penalty is not
commensurate to the gravity of the wrong perpetrated.
At the outset, the Court agrees with the IBP that
respondents Motion to Dismiss should be denied. In that Motion,
he maintains that he should be cleared of administrative liability,
because he has been acquitted of estafa which involved the
same facts. He argues that the issue involved there was the very
same issue litigated in this case,[13] and that his exoneration was
a result a full blown trial on the merits of this case.[14]
In a similar case, we have said:
x x x The acquittal of respondent Ramos [of] the criminal charge
is not a bar to these [administrative] proceedings. The standards
of legal profession are not satisfied by conduct which merely
enables one to escape the penalties of xxx criminal
law. Moreover, this Court in disbarment proceedings is acting in
an entirely different capacity from that which courts assume in
trying criminal cases.[15]
Administrative cases against lawyers belong to a class of
their own.[16] They are distinct from and they may proceed
independently of civil and criminal cases.
The burden of proof for these types of cases differ. In a
criminal case, proof beyond reasonable doubt is necessary;[17] in
an administrative case for disbarment or suspension, clearly
preponderant evidence is all that is required. [18] Thus, a criminal
prosecution will not constitute a prejudicial question even if the
same facts and circumstances are attendant in the administrative
proceedings.[19]
It should be emphasized that a finding of guilt in the criminal
case will not necessarily result in a finding of liability in the
administrative case.[20] Conversely, respondents acquittal does
not necessarily exculpate him administratively. In the same vein,
the trial courts finding of civil liability against the respondent will
not inexorably lead to a similar finding in the administrative action
before this Court. Neither will a favorable disposition in the civil
action absolve the administrative liability of the lawyer.[21] The
basic premise is that criminal and civil cases are altogether
different from administrative matters, such that the disposition in
the first two will not inevitably govern the third and vice versa. For
this reason, it would be well to remember the Courts ruling in In
re Almacen,[22] which we quote:
x x x Disciplinary proceedings against lawyers are sui
generis. Neither purely civil nor purely criminal, they do not
involve a trial of an action or a suit, but are rather investigations
by theCourt into the conduct of one of its officers. Not being
intended to inflict punishment, [they are] in no sense a criminal
prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein. [They] may be initiated by the Court motu
proprio. Public interest is [their] primary objective, and the real
question for determination is whether or not the attorney is still a
fit person to be allowed the privileges as such. Hence, in the
exercise of its disciplinary powers, the Court merely calls upon a
member of the Bar to account for his actuations as an officer of
the Court with the end in view of preserving the purity of the legal

profession and the proper and honest administration of justice by

purging the profession of members who by their misconduct have
prove[n] themselves no longer worthy to be entrusted with the
duties and responsibilities pertaining to the office of an attorney. x
x x (emphasis ours)
We shall now discuss seriatim the specific charges against
respondent.
First. Complainant alleges that respondent appealed the
POEA Decision, despite knowing that it had already become final
and executory. The IBP investigating commissioner had no
explicit finding on this point. Rogelio G. Gatchalian testified that
during the pendency of the appeal, his company had received
from the POEA a Writ of Execution which led him to the
conlcusion that they [had] lost the case before the Supreme
Court.[23] This, however, does not substantiate the charge.
Complainant has failed to present proof regarding the status
of the appeal. Neither has there been any showing that the
appeal was dismissed on the ground that the POEA Decision had
become final and executory. Worse, there has been no evidence
that respondent knew that the case was unappealable. Indeed,
the records of this Court shows that the Petition for Review was
dismissed for petitioners failure to submit an Affidavit of Service
and a legible duplicate of the assailed Order. Clearly, this charge
has no leg to stand on.
Second. Be that as it may, we agree with the IBP that
respondent obtained from complainant the amount of $2,555, on
the false representation that it was needed for the appeal before
this Court. According to Gatchalian,[24] respondent explained that
the amount would cover all the expenses to be incurred in the
Petition for Review with the Supreme Court and which amount
also will answer for the payment as sort of deposit so that if our
case is lost, the money will be given or paid to the complainant in
that case so that our deposit with the bank would not be
garnished.[25] Corroborating Gatchalians testimony, Edna Deles
declared that respondent received the amount on the
representation that it would be paid to the Supreme Court in
connection with the Olano case.[26]
The defense of denial proferred by respondent is not
convincing. Quite the contrary, when he paid P10,000 and issued
a check to complainant as his moral obligation, he indirectly
admitted the charge. Normally, this is not the actuation of one
who is falsely accused of appropriating the money of
another. This is an admission of misconduct. [27] In his Answer
submitted to this Court, he declared:
(8). That I have no knowledge, information or belief as to
truthfulness of the allegation of the Petitioner, on his allegation
no. 8 and no. 9, the truth being that in all the cases and
assignments made by the Petitioner to me, I was made to report
to him personally and to his Board of Directors the progress of
the cases both orally and in writing. I even [went] to the extent of
paying him P10,000.00 as my moral obligation only to find after
accounting that he still owes me P180,000.00 as attorneys fee
[to] which I am entitled under rule 130 of the rules of court sec.
24, and under sec. 37 of the above-cited rules, I have the right to
apply the funds received from Gatchalian in satisfaction of my

claim for Professional Services, otherwise known as Attorneys

Lien, as shown in my Service Billings and Statement of Accounts.
[28]
(emphasis ours)
Contrary to respondents claim, the amount of $2,555 was
not a part of his attorneys lien. He demanded the money from his
client on the pretext that it was needed for the Petition before the
Supreme Court, but he actually converted it to his personal
gain. This act clearly constitutes malpractice.[29] The claim that
respondent merely applied his lien over the funds of his client is
just an afterthought, the accounting being made after the fact. It
is settled that the conversion by a lawyer of funds entrusted to
him is a gross violation of professional ethics and a betrayal of
public confidence in the legal profession.[30]
Third. In an effort to conceal his misappropriation of the
money entrusted to him, respondent gave complainant a
photocopy of a receipt purportedly showing that the Supreme
Court had received the sum of $2,555 from him. Again, the
testimonies of Gatchalian[31] and Deles[32] were equally clear on
this point. After respondent had presented the false receipt,
Gatchalian learned that no such payment was made. Ms Araceli
Bayuga of the Supreme Court Cash Collection and Disbursement
Division issued a certification that respondent had paid the
amount of P622 only, not $2,555. In fact, the records of the said
case[33] contain no indication at all the Court has required the
payment of the latter sum, or that it has been paid at all.
Juxtaposed to the complainants evidence, the bare denials
of respondent cannot overturn the IBPs findings that he has
indeed presented a false receipt to conceal his misappropriation
of his clients money. We agree with the IBP that it is unbelievable
that the complainant in the person of Rogelio Gatchalian, being a
layman as he is without any knowledge in the procedure of filing
a case before the Supreme court, could spuriously weave such
documents which are denied by the respondent.[34]
In view of the foregoing, respondent has clearly failed the
standards of his noble profession. As we have stated
in Resurrecion v. Sayson:[35]
[L]awyers must at all times conduct themselves, especially in
their dealings with their clients and the public at large, with
honesty and integrity in a manner beyond reproach.
Clearly reprehensible are the established facts that he
demanded money from his client for a bogus reason,
misappropriated the same, and then issued a fake receipt to hide
his deed. In Dumadag v. Lumaya,[36] the Court ordered the
indefinite suspension of a lawyer for not remitting to his client the
amount he had received pursuant to an execution, viz.:
[E]ven as respondent consistently denied liability to Dumadag,
his former client, the records abundantly point to his receipt of
and failure to deliver the amount of P4,344.00 to his client, the
herein complainant, a clear breach of the canons of professional
responsibility.
In Obia v. Catimbang,[37] we meted out the same penalty to
a lawyer who had misappropriated the money entrusted to him:

The acts committed by respondent definitely constitute

malpractice and gross misconduct in his office as attorney. These
acts are noted with disapproval by the Court; they are in violation
of his duty, as a lawyer, to uphold the integrity and dignity of the
legal profession and to engage in no conduct that adversely
reflects on his fitness to practice law. Such misconduct discredits
the legal profession."
Respondents acts are more despicable. Not only did he
misappropriate the money entrusted to him; he also faked a
reason to cajole his client to part with his money. Worse, he had
the gall to falsify an official receipt of this Court to cover up his
misdeeds. Clearly, he does not deserve to continue being a
member of the bar.
WHEREFORE,
Primo
R.
Naldoza
is
hereby DISBARRED. The Office of the Clerk of Court is directed
to strike out his name from the Roll of Attorneys and to inform all
courts of this Decision.
SO ORDERED.

FIRST DIVISION
[G.R. No. 116738. March 22, 1999]
PEOPLE OF THE PHILIPPINES, petitioner, vs. RODRIGO
DOMOGOY,
ALLAN
CUIZON
and
ELMER
FRAGA, defendants.
RODRIGO DOMOGOY, defendant-appellant.
DECISION
KAPUNAN, J.:
This is an appeal from the decision of the Regional Trial
Court of Bislig, Surigao del Sur,[1] the dispositive portion of which
reads:
WHEREFORE, accused Rodrigo Domogoy is found guilty
beyond reasonable doubt of the crime of rape, defined and
penalized under Article 335 of the Revised Penal Code, is hereby
sentenced to suffer the penalty of reclusion perpetua, to pay the
private complaint, Angeles Adorable the amount of P30,000.00
as moral damages, P20,000.00 as exemplary damages, and to
pay the cost.
He shall serve sentence in the National Penitentiary of
Muntinlupa, Metro Manila.
Accused Allan Cuizon and Elmer Fraga, for lack of evidence, are
hereby acquitted.
SO ORDERED.[2]
Rodrigo Domogoy, Allan Cuizon and Elmer Fraga were
charged with the rape of Angeles Adorable in an information
stating:
That on or about 10:30 oclock [sic] in the evening, September 25,
1992, in Poblacion Bislig, municipality of Bislig, province of
Surigao del Sur, Philippines and within the jurisdiction of this

Honorable Court, the above-named accused, conspiring,

confederating and mutually helping each other in their common
design, by means of force and intimidation, did then and there
willfully, unlawfully and felonously [sic] have carnal knowledge of
the offended party, ANGELES ADORABLE, in the following
manner: accused Rodrigo Domogoy while having carnal
knowledge with the said Angeles Adorable against her will, the
accused Allan Cuizon and Elmer Fraga stood and acted as
guards, which acts and deeds caused damage and prejudice of
the said victim.
CONTRARY TO LAW: In violation of Article 335 of the Revised
Penal Code.
Bislig, Surigao del Sur, May 26, 1993.[3]
On July 30, 1993, Atty. Maximo N. Llanto, [4] counsel for the
three accused, filed a Motion to quash alleging that the criminal
action, or the criminal liability of accused Rodrigo Domogoy, had
been extinguished by the pardon extended to him by private
complainant. The alleged pardon was contained in a
letter[5] supposedly written by private complainant to Domogoy.
The prosecution opposed the motion to quash, claiming that
pardon is a matter of defense and therefore an improper ground
for such motion. The prosecution likewise argued that while the
private complainant admitted having written said letter, she
denied having pardoned or forgiven the accused Rodrigo
Domogoy as shown by the Affidavit[6] she executed on 11 August
1993.
After hearing, the trial court issued an Order [7] denying the
Motion to Quash.
Upon arraignment, all the three (3) accused entered a plea
of not guilty to the offense charged. The parties then agreed on
the following facts:[8]
1. That there was sexual intercourse but not that of
rape between the accused and the private
complainant;
2. That the incident happened on or about 10:30
oclock in the evening of September 25, 1992, at
the Bislig Municipal High School building,
Poblacion, Bislig, Surigao del Sur;
3. The medical certificate dated February 3, 1993;[9]
4. That before the incident happened the private
complainant and accused, Rodrigo Domogoy
came from the Lilys Pharmacy at Sto. Tomas St.,
Poblacion, Bislig, Surigao del Sur;
5. That from Liliys Pharmacy along Sto. Tomas St.,
Poblacion, Bislig, Surigao del Sur, the two (2) coaccused, Allan Cuizon and Elmer Fraga were
following behind the private complainant and the
accused.[10]
Trial proceeded thereafter.
As its sole witness, the prosecution presented the alleged
victim, Angeles Adorable, twenty-one (21) years of age and a
house helper of the Yu spouses, owners of Lilys Pharmacy.[11]
On the evening of September 25, 1992, at around 10:00,
Angeles and Monaliza Llenares, also a house helper in the Yu
household, were outside Lilys Pharmacy when the three (3)
accused -- Rodrigo Domogoy, Allan Cuizon (Quizon) and Elmer

Fraga -- arrived. Monaliza or Monmon, who used to be Rodrigos

classmate, introduced the three to Angeles. The latter
acknowledged the introduction by nodding. At around 10:15 p.m.,
Monmon excused herself and went upstairs to take a shower.
Rodrigo then approached Angeles and asked her to go with
him. Angeles refused, making Rodrigo angry. Rodrigo placed his
right hand over Angeles shoulder and, with his left, pointed a
hunting knife approximately eight (8) inches long on the left part
of her waist. Behind them were Elmer and Allan.
Rodrigo told Angeles she was hardheaded. I am not a bad
girl to be abused with, she replied. Rodrigo then directed her to
the Bislig Municipal High School some 200 meters away.Rodrigo
held Angeles right shoulder strongly as he guided her through the
dark portion of the street leading to the school building, the knife
still pointed at the left side of her body.
Although she was not able to turn her head to look back,
Angeles knew that Rodrigos co-accused, Elmer Fraga and Allan
Cuizon, were following them because they were [already] around
when we reached the school building.
Rodrigo led Angeles to the darkest part of the school and
took off her clothes. He then took off his shirt, pulled his trousers
to his knees, and made Angeles lean against the wall. He kissed
Angeles all over her body, fondled her breasts and inserted his
finger in her vagina. Rodrigo then ordered her to kneel and suck
his penis. When Angeles refused, he pushed her down. Angeles
fell to the ground. Rodrigo placed her in a supine position, put
himself on top of her and kissed her all over her body. As Rodrigo
started the sexual intercourse, Angeles tried to push him away, to
no avail.

Hows your life going on? Still fine? I hope so. . . Well if you ask
me naman Im fine, although its hard for me to forget, hard to
accept and not easy to recover the pain in my heart; But Im
trying myself to forget the past moments when I have been
failured. Yes I cant deny myself that Im broken hearted and I
realized at all that its not easy to full in love. Kaya nga bigla
nalang ako sumama sa iyo dahil na crush ako sa iyo for the first
time when I saw you. But I did not expect na hahantong tayo sa
hindi magandang pangyayari. [p]ero tapos na yon, lets forget the
past moments that we have; and lets go on to the new world of
friendship. In francly speaking inlove ako sa iyo pero ayaw kong
sundin ang puso ko dahil alam kong na tripingon mo lang ako. At
and sabi pa nga ni Monmon papuntapunta ka lang daw dito dahil
natakot ka lang daw sa kanya, ngunit hindi mo naman talagang
tipong (ka) makipag usap sa akin. But dont worry because youre
already forgiven. The bible said you must do first to forgive your
brother/sister before you ask the forgiveness your sin to the
heavenly father. If God can forgive the sinners, how much more
we are?. . . Romans 2:6 God will give to each person according
to what he has done.
Your friend N Christ
Angel
God Bless you!
The letter itself was enclosed in a greeting card allegedly
bought by Monmon. On the face of the greeting card were printed
in script the words:

While all these were taking place, Elmer and Allan were
about a meter away from the couple, looking and laughing.

I wonder if youve noticed

the change?

Angeles soon felt hot liquid oozing on her lap. Satisfied,

Rodrigo stood up, threw Angeles her dress and told her to go
home. Angeles however could hardly move from the pain and
exhaustion, and did not immediately put on her clothes. Rodrigo
became angry and ordered Elmer and Allan to get a sack to put
in Angeles. Afraid, Angeles forced herself to stand and dress
up. She felt sore and found blood on her thigh.

When we first met,

there were no strings,
no promises.

Angeles then walked home to Lilys Pharmacy as Rodrigo,

Elmer and Allan followed her from a distance, watching where
she would go.
Angeles finally reached Lilys Pharmacy at around 11:00
p.m. Monmon opened the door for her. Seeing the blood on her
legs, Monmon asked her what happened. Angeles thus
recounted her ordeal to Monmon but did not report the incident to
her employers who were already asleep.
Angeles did not see Rodrigo until a month after the
incident. She nevertheless felt frightened so Monmon supposedly
suggested that she send him the letter that later became the
basis for the accuseds motion to quash. The letter reads:

Oct. 25, 1992

Dearest Igoy,
Warmest regards in the magnificent name of our Lord Jesus
Christ.

But now, I feel differently

The inside of the cover was blank. On the page opposite,
Angeles wrote:
Isaiah 55:6
Seeks [sic] the Lord while he may be
found;
call on Him while he is near.
Open rebuke is
better than
secret
Love
Angeles also wrote these words on the succeeding page:
In Jesus alone
I found the
real
Love
its [sic]
never
fails

Jesus is the melody

of the broken
heart...

A I told her that, because you went with me, that means, you
will agree what will happen to us now.
Q Then, what happen [sic]?

Again, upon Monmons suggestion, Angeles took a

photograph[12] from her album and pasted it in the space beside
the second and seventh lines.
On the page opposite, the cards message continued:
October 25, 1992

A Then, she answered, I wont be afraid, what will happen to

us. What I am afraid of is afterwards you will neglect
me.
Q What was your answer too?
A I said, I cannot do it to you, if you really love me.[14]

Dear Igoy,

Upon reaching the school building, Rodrigo told Angeles

that if you really love me, that means, you will agree what will
happen to us. Rodrigo then attempted to take off Angeles dress
but because he had some trouble with the buttons, Angeles
volunteered to take it off herself. As Angeles undressed, Rodrigo
removed his pants and brief. Rodrigo then proceeded to have
sexual intercourse with Angeles.

Now I realize
that theres no one else
I need,
theres no one else
I want,
theres no one else for me

After consummating the intercourse, Rodrigo handed

Angeles her clothes and put on his pants. With his hand over her
shoulder, Rodrigo walked her back to Lilys Pharmacy.

but you
Your friend N-Christ
Angel
Finally, at the lower part of the back cover were printed the
words:
I Love You
Angeles attributed most of the words in the letter to
Monmon who allegedly dictated the same to Angeles. The
Biblical quotes found in both the letter and the greeting card, as
well as that part of the letter relating to forgiveness, were
however Angeles own.
Angeles nonetheless denied forgiving Rodrigo. She likewise
denied that she had a crush on Rodrigo or that she was in love
with him. According to Angeles her purpose in writing Rodrigo the
letter was (s)o that he will believe and he could not defend
whatever action I may take.[13]
Upon Angeles request, Rowema Bagaan, another of the
Yus house helpers, delivered the card and the letter to Rodrigo.
Angeles happened to see the three (3) accused viewing a
beta show at Lilys Pharmacy after she sent Rodrigo her
letter. The three (3) mocked and laughed at her. Rodrigo even
approached her and puffed cigarette smoke on her face. Angeles
felt afraid and left them.
In his defense, Rodrigo claimed that he and Angeles were
sweethearts and the sexual intercourse between them
consensual. The twenty-one (21) year old student testified that
he first met Angeles on the first week of September 1992 at the
Bislig market Site. Monmon, his former classmate, introduced
him to Angeles. The second time they met, he courted her and
she readily accepted his offered affection.
On the evening of September 25, 1992, he went to Lilys
Pharmacy and invited Angeles to take a walk with him. Angeles
told him to go ahead, and she would just follow him. Rodrigo did
not agree so they walked together to the Bislig Municipal High
School instead. They talked along the way.
Q What was the nature of your conversation?

Rodrigo and Angeles next met sometime on the first week

of October 1992. On said date, he and Angeles again engaged in
sexual congress at the Bislig National High School.
For their part, Rodrigos co-accused, Elmer Fraga and Allan
Cuizon, denied any participation in the alleged rape, claiming
they were merely peeping toms.
At around 10:30 p.m. of the date in question, Elmer and
Allan were at the betamax place near Lilys Pharmacy. Standing
on the street about ten (10) meters away was Rodrigo who was
talking to Angeles. When the couple left for the school building
minutes later, Elmer and Allan followed them. The two believed
that Rodrigo and Angeles were going to have a date.
Elmer and Allan reached the school ahead of the couple
and hid themselves. From their hiding place seven (7) meters
away, Allan saw Rodrigo take off Angeles panty. Angeles shed
the rest of her clothes as Rodrigo took off his pants. Elmer and
Allan masturbated as they watched Rodrigo and Angeles perform
the sex act.
As stated at the outset, the trial court acquitted Elmer Fraga
and Allan Cuizon, but convicted Rodrigo Domogoy of rape. The
latter thus appeals to this Court questioning his conviction.
We acquit appellant on the ground of reasonable doubt.
A perusal of the appealed decision reveals that appellants
conviction by the trial court was grounded largely upon the
uncorroborated testimony of private complainant. This is not at all
unusual in rape cases, as the participants are usually the only
ones who can testify as to the truth or falsehood of the
allegations.[15] When the conviction, however, depends at any
vital point upon the victims uncorroborated testimony, it should
not be accepted unless her sincerity is free from suspicion.[16] The
testimony of the complainant in crimes against chastity should
not be received with precipitate credulity,[17] but regarded with
utmost caution.[18] While the findings of the trial court regarding
the credibility of witnesses are generally accorded the highest
respect, appellate courts are not precluded from carefully
scrutinizing the evidence to ascertain whether a fact or
circumstance has been overlooked or was misinterpreted by the
trial court.[19] In the case at bar, several circumstances impair
complainants credibility.

First. The tone and the contents of the letter and the card
indicate a greater degree of familiarity than complainant claimed
to have existed between her and appellant, belying complainants
claims that she was introduced to appellant on the evening of the
alleged rape. (Even this claim is inconsistent. Complainant
testified that she was introduced by Monmon to the three (3)
accused on the night of September 25, 1992.[20] But in her
affidavit executed before SPO4 Cristeta dela Cruz, complainant
stated that she came to knowthier [sic] names only after the
incident when she asked thier [sic] identities from [her] house cooccupants.[21]) In her letter, complainant did not attempt to
disguise her feelings towards appellant. She candidly admitted
having had a crush on appellant the first time she saw
him. Fran[k]ly speaking, she unabashedly declared, inlove
[sic] ako sa iyo. This statement virtually confirms the fact that
complainant and appellant were lovers, thereby giving credence
to the latters defense.
We disagree with the trial court when it observed that:
Relative to the letter which contains some love expressions, the
Court is of the belief that it has nothing [sic] to show that Angeles
Adorable had given herself up voluntarily on her own free
will. The letter is dated October 25, 1992, exactly one month after
the commission of the crime of rape on September 25,
1992[.] [F]or a woman who has been deflowered, [it] is but
natural to pretend to hide her ill feelings. This expression of love
in the letter are [sic] the aftermath of that harrowing experience in
the hands of the accused. The letter is mixed with some biblical
verses or quotations, the purpose of which as explained by
Angeles Adorable, is to try to put in the mind of the accused fear
of God and to disuade [sic] him from committing carnal
knowledge for the second time. xxx.[22]
On the contrary, it is highly unusual and inconsistent with human
experience for a woman who has been ravished to feign love for
her persecutor, especially when, according to her, she hardly
knew the latter. Moreover, we have serious doubts whether said
letter would put in the mind of the accused fear of
God. Complainants words are not exactly fire-and-brimstone
exhortations that would send appellant praying for divine
mercy. Nor do we think that her use of saccharine words would
the least bit dissuade her purported rapist from molesting her
again. Complainants picture which was pasted on the card would
probably produce just the opposite effect.
Complainants claims that the card was bought, and that the
letter was dictated by, Monmon, if true, would not work against
appellants acquittal. Complainant had every opportunity to read
the card. She admits that the handwriting thereon is hers. It is
highly unlikely that she wrote on it without reading and approving
of its contents. If the card was not to her liking, she could have
easily discarded it but she did not. Likewise, complainant could
have rejected the words supposedly dictated by Monmon if she
felt that these did not express her true sentiments. Complainant
is not illiterate. She is a high school graduate and was already of
legal age at the time the letter was written. It cannot be said that
she was unduly influenced by Monmon, a house helper like her
and approximately the same age.
Second. This Court has found in some cases that some
supposed victims (or their relatives) resort to filing unfounded
complaints for rape in an attempt to redeem the lost honor of
complainant, the latter having been caught in flagrante in premarital,[23] if not extra-marital,[24] intercourse with their alleged
rapists.

Here, private complainant was seen having sexual

intercourse with appellant by the latters co-accused, Elmer Fraga
and Allan Cuizon. It is thus not farfetched for complainant to have
instituted the complaint for rape against the three to avoid being
bruited around as a woman of loose morals.
In People vs. Subido,[25] we declared that this Court will not
hesitate to reverse a judgment of conviction and acquit the
accused where there are strong indications pointing to the
possibility that the rape charge was motivated by some factors
other than the truth as to its commission.
Third. Considering the above circumstances, the fact that it
took complainant almost (5) months to report the alleged rape
should be weighed in appellants favor. Where the evidence gives
rise to two possibilities, one consistent with the acuseds
innocence and the other indicative of his guilt, that which favors
the accused would be properly considered. Thus, in People vs.
Relorcasa,[26] the long delay of complainant in reporting the
incident created doubts in the Courts mind that she was raped by
appellant therein.
The Solicitor General nevertheless argues that:
x x x it is hard to believe that an unmarried woman, like
complainant, would tell a story of defloration, allow the
examination of her private parts, and thereafter permit herself to
be the subject of public trial, unless she was not motivated by an
honest desire to have the culprit apprehended and punished
(People vs. Francisquiste, 56 SCRA 764).
Complainant belonged to the poor, was a mere household helper
but still possessed the traditional and proverbial modesty of the
Filipina, especially the provinciana. Complainant would not have
filed a complaint for rape and suffered the torment, if not the
ignominy of having to testify in a court of justice about the wrong
done to her if in truth she was not really raped (People vs.
Sacabin, 57 SCRA 707).[27]
We are not persuaded. The presumption invoked by the
Solicitor General cannot prevail over the constitutional
presumption of innocence.
Thus, in People vs. Godoy,[28] this Court, stated:
The trial court, in holding for conviction, relied on the presumptio
hominis that a young Filipina will not charge a person with rape if
it is not true. In the process, however, it totally disregarded the
more paramount constitutional presumption that an accused is
deemed innocent until proven otherwise.
It frequently happens that in a particular case two or more
presumptions are involved. Sometimes the presumptions conflict,
one tending to demonstrate the guilt of the accused and the other
his innocence. In such case, it is necessary to examine the basis
for each presumption and determine what logical or social basis
exists for each presumption, and then determine which should be
regarded as the more important and entitled to prevail over the
other. It must, however, be remembered that the existence of a
presumption indicating guilt does not itself destroy the
presumption against innocence unless the inculpating
presumption, together with all of the evidence, or the lack of any
evidence or explanation, is sufficient to overcome the
presumption of innocence by proving the defendants guilt beyond
a reasonable doubt until the defendant is shown in this
manner, the presumption of innocence continues.

The rationale for the presumption of guilt in rape cases has been
explained in this wise:
In rape cases especially, much credence is accorded the
testimony of the complaining witness, on the theory that she will
not choose to accuse her attacker at all and subject herself to the
stigma and indignities her accusation will entail unless she is
telling the truth. The rape victim who decides to speak up
exposes herself as a woman whose virtue has been not only
violated but also irreparably sullied. In the eyes of a narrowminded society, she becomes a cheapened woman, never mind
that she did not submit to her humiliation and has in fact
denounced her assailant. At the trial, she will be the object of
lascivious curiosity. People will want to be titillated by the intimate
details of her violation. She will squirm through her testimony as
she described how her honor was defiled, elating every
embarassing movement of the intrusion upon the most private
parts of her body. Most frequently, the defense will argue that she
was not forced to submit but freely conjoined in the sexual
act. Her motives will be impugned. Her chastity will be challenged
and maligned. Whatever the outcome of the case, she will remain
a tainted woman, a pariah because her purity has been lost,
albeit through no fault of hers. This is why many a rape victim
chooses instead to keep quiet, suppressing her helpless
indignation rather than denouncing her attacker. This is also the
reason why, if a woman decides instead to come out openly and
point to her assailant, courts are prone to believe that she is
telling the truth regardless of its consequences. x x x.
The presumption of innocence, on the other hand, is founded
upon the first principles of justice, and is not a mere form but a
substantial part of the law. It is not overcome by mere suspicion
or conjecture; a probability that the defendant committed the
crime; nor by the fact that he had the opportunity to do so. Its
purpose is to balance the scales in what would otherwise be an
uneven contest between the lone individual pitted against the
People and all the resources at their command. Its inexorable
mandate is that, for all the authority and influence of the
prosecution. The accused must be acquitted and set free if his
guilt cannot be proved beyond the whisper of a doubt. This is in
consonance with the rule that conflicts in evidence must be
resolved upon the theory of innocence rather than upon a theory
of guilt when it is possible to do so.
On the basis of the forgoing doctrinal tenets and principles, and
in conjunction with the overwhelming evidence in favor of herein
appellant, we do not encounter any difficulty in concluding that
the constitutional presumption on the innocence of an accused
must prevail in this particular indictment.
Likewise, in People vs. Sandagon,[29] this Court held that:
It is not enough to say that a girl would not expose herself to the
humiliation of a rape complaint unless the charge is true. That is
putting things too simply. For the prosecution to succeed, it is
also necessary to find that the complainants story is by itself
believable independently of the presumption. Otherwise, if all that
mattered was that presumption, every accusation of rape would
inevitably result, without need of further evidence, in the
conviction of the accused. This would militate against the rule
that in every criminal prosecution, including rape cases, the
accused shall be presumed innocent until the contrary is proved.
WHEREFORE, the Decision appealed from is hereby
reversed and set aside. Appellant Rodrigo Domogoy is hereby
ACQUITTED of the crime of rape in Criminal Case No. 1266-B of
the Regional Trial Court of Surigao del Sur, Branch 29. The

Director of Prisons is hereby directed to forthwith cause the

release of accused-appellant unless the latter is being lawfully
held for another cause and to inform the Court accordingly within
ten (10) days from notice.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 67973 October 29, 1992
THE PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
CONRADO LAGMAY Y GARCES alias "JOJO GARCES",
FERNANDO BAETIONG Y CAMPOPOS, and FRANCISCO
PADULLANA, accused-appellants.
GUTIERREZ, JR. J.:
A review of the decision of the Regional Trial Court of Quezon
City, Branch LXXXIV is sought by appellants Conrado Lagmay
Garces alias Jojo Garces and Francisco O. Padullana, who are
among the three accused convicted of the crime of Robbery with
Frustrated Homicide and sentenced to suffer the penalty
of reclusion perpetua. The other accused, Fernando Baetiong y
Campopos escaped from prison after the prosecution had rested
its case and remains at large.
The three accused were initially charged in two separate
informations, namely: in Criminal Case No. Q-15192 for Robbery
with the Use of Force and Violence against Persons, and
Criminal Case No. Q-15193 for Robbery and Frustrated
Homicide. The two cases were jointly tried by the same court. In
Criminal Case No. Q-15192, all three accused were acquitted.
The information in Criminal Case No. Q-15193 alleged:
That on or about the 20th day of July, 1980, in Quezon
City, Philippines, the above-named accused, conspiring together,
confederating with, and mutually helping one another, with intent
of gain, with the use of force, violence and intimidation against
persons, did, then and there willfully, unlawfully and feloniously,
rob the following offended parties of their personal properties, to
wit:
1. Adela Alfonso y Marquez:
One Lady's wrist watch with
calculator valued at P385.00
Ace Shoulder bag, valued at 40.00
P425.00
2. Maria L. Jesus:
One college ring valued at P500.00
One gold ring with stone valued at P250.00
One lady's Citizen watch valued at P600.00
P1350.00

3. Edgar Fulleros:
One Seiko chronograph valued at P600.00
4. Victoriano Madrigal:
Cash money representing his earnings
as driver of the jeepney robbed (in
different denominations) P180.00
5. Pat. Casiano Pedrana (should be Pedrano)
Cash money in different denominations P14.00
One pistol, caliber .45 colt, SN No.
1638482 with seven rounds of
ammunition Undermined amount
in the following manner, to wit: the said accused,
pursuant to their conspiracy, rode in a passenger jeepney driven
by the offended party Victoriano Madrigal at Blumentritt Street,
Manila bound for Novaliches, and when said passenger jeepney
was near 11th Avenue, A. Bonifacio Street, this City, said
accused brought out their unlicensed firearm and bladed
weapons and told the passengers that it was a hold-up and
threatened said passengers with death if they resisted or cried for
help and thereafter with intent of gain, take, rob and carry away
the personal properties of the offended parties mentioned above
and when Pat. Casiano Pedrano resisted, said accused with
intent to kill, stab (sic) him on different parts of his body and fired
at him with their firearm thereby inflicting upon Pat. Casiano
Pedrano serious and mortal wounds which could have produced
his death were it not for the damage prejudice of offended parties
in the aforesaid sum indicated above and in such other amount
as may be awarded to them under the provisions of the Civil
Code. (Rollo, pp. 6-7)
After trial, the court rendered a conviction, the dispositive potion
of which reads:
In Criminal Case No. Q-15193, the court finds the
accused Conrado Lagmay y Garces, Fernando Baetiong y
Campopos and Francisco O. Padollana (should be Padullana)
GUILTY as principals and beyond reasonable doubt of the crime
of Robbery with Frustrated Homicide under Section 2, Article 294
of the Revised Penal Code with the attending aggravating
circumstance of use of an unlicensed firearm and no attending
mitigating circumstance and hereby sentences all three of them
to suffer the penalty of life imprisonment (reclusion perpetua)
together with all the accessories attendant thereto. Since the
articles subject of the offense appear to have been recovered, no
civil indemnity is imposed for the value thereof. However, they
are sentenced to indemnify jointly and severally Pat. Casiano
Pedrano in the amount of P36,000.00. Also, they are sentenced
to pay jointly the costs of the proceedings. (Rollo, p. 10)
The evidence on which the conviction was based is summarized
in the decision as follows:
In Criminal Case No. Q-15193, the case for the
prosecution was testified to by two of the passengers, Pat.
Casiano Pedrano and Adela Alfonso.

Pat. Casiano Pedrano is a member of the Manila Police

Department. On July 20, 1980, at 11:30 o'clock p.m., he was
abroad a passenger jeepney bound for Novaliches, Quezon City
and was seated in the back at the right side. A hold-up was
staged by three (3) persons whom he identified as the accused
herein. The accused Baetiong stabbed him in the chest while the
accused Lagmay shot him on the right and left thighs with a .22
caliber revolver. His service gun (Exh. "D"), his wallet (Exh. "E"),
his badge (Exhs. "E-1"), his cash money consisting of two 2 5peso bills (Exhs. "F" & "F-1") and two 2 2-peso bills (Exhs. "F-2"
& "F-4"), and his shoulder bag (Exh. "G") were taken from him by
the robbers. He was then dropped on the highway. He was
brought to and treated at the MCU-FDT Medical Foundation
Hospital (Exh. "A") and incurred an expense of about
P36,000.00.
Adela Alfonso was a passenger of that same jeepney
with her sister Lydia, cousin Maria Rosal de Jesus, and Restituto
Rivera. As the jeepney traveled along, the man beside her was
always pressing his body towards hers. Along A. Bonifacio St.
near 11th Avenue in Quezon City, a passenger whom she
identified as the accused Lagmay drew a gun announced: "This
is a hold-up." There were three (3) robbers. Baetiong hit Rivera
with a gun in the mouth while Lagmay slapped her. They took
from her Casio calculator watch worth P385.00 and her bag
worth P50.00. It was accused Lagmay who got the things from
her. The accused Padollana was the one who took and collected
the jewelries of the other passengers. Lagmay stood up and
boxed her and by reason of the force of the blow, she fell from
the jeepney. She suffered a dislocation in the right shoulder and
was treated at the National Orthopedic Hospital (Exh. "C"). She
was investigated by the police on the following morning and she
gave a written statement (Exh. "B"). In addition to the foregoing,
the prosecution presented the extrajudicial admissions of the
accused Lagmay (Exhs. "H" & "H-1") and of accused Padollana
(Exhs. "I" & "I-1") (Rollo, pp. 7-8)
The accused interposed their respective defenses denying their
alleged participation in the hold-up.
Conrado Lagmay alleged that on July 20, 1980 at about 11:00 in
the evening in Blumentritt Street, he was alone as he boarded a
jeepney bound for Novaliches. Of all the passengers inside that
jeepney, only Francisco Baetiong was known to him. He did not
reach his destination because of a trouble that occurred while the
vehicle was running in which Fernando Baetiong stabbed another
male passenger for reasons he did not know. He jumped out from
the back exit of the vehicle after that stabbing incident but was
arrested by a security guard. He however admitted having blood
on his clothes which he explained to have due to injury on his
forearm caused by his jumping out and rolling on the ground.
(TSN, April 19, 1983, pp. 7-8) He said that there was one female
passenger who fell from the jeep but he did not come to her aid.
He also said that he did not confront his co-accused Baetiong
who insisted that it was he (Conrado Lagmay) who shot and
wounded the latter on his right foot. (Ibid., p. 9) The accused
likewise said that he did not know nor did he see Padullana.
Meanwhile, Francisco Padullana narrated that he is a provinciano
who came from Tacloban. Leyte eleven (11) days before the
alleged incident took place, to look for a job in Manila. He said
that after being taught by his aunt on how to commute from his

cousin's place in Tondo to Blumentritt, and from Blumentritt to his

aunt's house in Caloocan, he took a jeepney alone on the night
of June 20, 1980 from Blumentritt but failed to arrived at his
destination. While the jeepney was running, he saw two men
quarrelling with each other. He was later threatened by one of the
men (referring to Fernando Baetiong) who pointed a bladed
instrument at his (Padullana's) side, to go with him by a taxicab to
a house of a friend or relative in Tondo. In that house, Baetiong
ate and slept but Padullana did not. He did not leave that house
because he did not know the way from there to his aunt's place in
Caloocan.
According to him, police officers arrested him and Fernando
Baetiong in that house after some hours and held them for
questioning. He said that despite his insistence that he was not
involved in the hold-up, the police even mauled him and forced
him to signed a statement. (TSN, May 24, 1983, pp. 7-13)
Padullana said that he did not know his co-accused Conrado
Lagmay (Ibid, 1983, p. 4)
Finding the denials of the accused to be weak and not credible
the trial court convicted all three of them.
Only the accused Lagmay and Padullana appealed the decision
to this Court and assigned the following errors:
I
THE TRIAL COURT ERRED IN FINDING THAT
CONSPIRACY EXISTS IN THIS INSTANT CASE.
II
THE TRIAL COURT ERRED IN NOT HOLDING THAT
THE CONSTITUTIONAL RIGHTS OF THE APPELLANTS TO
REMAIN SILENT AND TO COUNSEL DURING CUSTODIAL
INVESTIGATION HAD BEEN VIOLATED.
III
THE COURT A QUO COMMITTED REVERSIBLE
ERROR IN ADMITTING IN EVIDENCE THE EXTRA JUDICIAL
CONFESSIONS OF THE ACCUSED WHICH WERE
EXTRACTED THROUGH FORCE, DURESS, THREATS AND
INTIMIDATION.
IV
THE TRIAL COURT ERRED IN FINDING THAT THE
GUILTY OF APPELLANTS HAD BEEN ESTABLISHED BEYOND
REASONABLE DOUBT. (Appellant's Brief, p. 1 in Rollo, p. 25)
It is argued that there can be no conspiracy among the three
accused in the present case because there was no proof that all
three of them were known to each other and that there was no
sufficient proof of a pre-conceived agreement to commit the
robbery.

The accused-appellants Lagmay and Padullana testified that they

did not know each other and that they did not see each other
inside the jeepney. They likewise admit that both of them knew
Fernando Baetiong. Padullana, however, makes the qualification
that he knew Baetiong only because he was threatened by the
latter to go to a house in Tondo.
We emphasize that conspiracy which determines criminal
culpability need not entail a close personal association or at least
an acquaintance between or among the participants to a crime.
Moreover, evidence of a previous agreement or plan to commit a
crime is not essential to establish conspiracy. (People v.
Maranion, 199 SCRA 421 [1991]; People v. Dionisio, 200 SCRA
207 [1991]) Conspiracy is established by evidence of unity of
purpose at the time of the commission of the offense and unity in
its execution. (People v. Bravante, 150 SCRA 569 [1987]; People
v. Cantuba, 183 SCRA 289 [1990]) What is important is that in
the performance of the specific acts necessary to achieve their
goal, there was "such closeness and coordination that would
indicate a common purpose or design." (People v. Petenia, 143
SCRA 361 [1986]; People v. Francisco, 182 SCRA 305 [1990])
In the present case, conspiracy was established by conclusive
evidence. It was shown to exist as clearly as the commission of
the crime itself. (De la Concepcion v. People, 173 SCRA 253
[1989]) There is evidence of participatory acts of each of the
three accused. Contrary to what the counsel for the accusedappellants suggests, the Court finds that Padullana is not spared
a finding of conspiracy since the evidence positively manifests
the same intent on his part to take things against the will of the
complainants and other passengers. The accused-appellant
Padullana was found to have cooperated and given material aid
in the consummation of the crime.
The Solicitor General aptly describes the manner in which the
crime was committed.
a. As soon as accused Baetiong announced that they
were staging a hold-up in the passenger jeepney on July 20,
1980, both he (referring to Baetiong) and accused-appellant
Lagmay took turns in hitting victims Casiano Pedrano and Adela
Alfonso who resisted in handing their valuables to the former
(TSN, July 13, 1981, p. 2; TSN, August 26, 1981, p. 6). Once
certain that the other jeepney passengers would provide no
resistance for fear of their life and limb, accused-appellant
Padolana took the jewelries of passengers Marylou de Jesus and
Restituto Rivera (TSN, August 26, 1981, p. 7). His acts, if nothing
else, indicate criminal intent to deprive others of their property in
accordance with a common plan as agreed upon with his coaccused Baetiong and Lagmay." (Appellee's Brief, p. 15)
The above observations are based on the testimonies of the
prosecution witnesses.
The appellant's counsel, however, asks us to believe that the
prosecution witnesses testified on the lack of participation of
accused-appellant Padullana. There is no basis for this opinion.
The Court notes and views with disfavor the manner by which
desired portions of the testimonies were lifted and the more
important ones left out just to convince us that the prosecution in
fact proved the innocence of Padullana. The witnesses Adela

Alfonso and Pat. Casiano Pedrano who were victims of the crime
at first answered in the negative in their respective direct
examinations regarding the participation of Padullana, but after
further questioning and more lucid differently and particularly
attested to Padullana's presence and act of collecting the items
with intent to rob the passengers.
The testimony of each of the prosecution witnesses is shown to
be characterized by candor that normally accompanies an
unrehearsed and honest delivery of facts personally and vividly
known to a witness. Minor discrepancies caused by the needed
deeper reflection do not affect the veracity of a testimony for as
long as the fact of participation was duly established. The
credibility of the witnesses are even reinforced. (People v. Lucille
Sendon, G.R. No. 95903-05, June 8, 1992; People v. Bautista
147 SCRA 500 [1987]; People v. Alfredo Hoble y Leornardo, G.R.
No. 96091, July 22, 1992)
The pertinent portion of the testimony of Adela Alfonso, the victim
who was slapped by accused-appellant Lagmay and who fell
from the jeepney, is as follows:
xxx xxx xxx
Q Now you said there were three persons involved in the robbery
hold-up. You mentioned Fernando Baetiong, you identified
Conrado Lagmay as the person who took your calculator, watch
and shoulder bag. Now could you recognize that 3rd person if
you see him again?
A Yes, sir. (Witness pointing to Francisco Padollana)
Q What did Francisco Padollana do?
A He did not do anything.
Q What was he doing all the while from the start that this Lagmay
drew his gun, slapped and got your calculator and shoulder bag?
A He was the one who got the jewelries of my companions.

COURT:
Do you want to impress to the Honorable Court that all the wound
sustained in your body were inflicted by accused Baetiong?
A Yes, sir.
FISCAL:
While you were being stabbed by Baetiong do you still recall
what the other passengers were doing?
A The other passengers cannot move because Padollana has a
gun.
(TSN, July 13, 1981, p. 3; Emphasis supplied)
It can be seen that the prosecution witnesses were able to
positively identify Padullana as one of the three men responsible
for the robbery. The mere presence of accused-appellant
Padullana instilled fear among the passengers. Moreover, his act
in collecting the personal belongings against the will of the
owners makes him a co-conspirator to the unlawful taking of
property. Hence, the allegations that he was a provinciano from
Leyte who came here several days before the robbery took place
to look for a job, and that he was forcible asked by accused
Baetiong to go to a house in Tondo are mere denials which do
not overturn the strength of the prosecution evidence.
The Court agrees with the argument of the Solicitor General that
if indeed accused-appellant Padullana was forced against his will
by the accused Baetiong to accompany him to a house in Tondo,
why could he not devise a scheme to escape? (Appellee's Brief,
p. 16; Rollo, p. 51)
The second and third assigned errors refer to the propriety of the
admission in evidence of the extrajudicial confessions (exhibits
"H" and "I"; Original Records, pp. 208-211) of the two accusedappellants allegedly obtained in violation of the constitutional
right to remain silent and to counsel, and by means of mauling
and electrocution administered by policemen in civilian clothes.

Q Who is that companions (sic) of yours?

A (Witness pointing to Marylou de Jesus and Restituto Rivera)
(TSN, August 26, 1981, p. 7; Emphasis supplied)
Pat. Casiano Pedrano, the victim who was stabbed, shot and
seriously wounded testified:
Q How about the accused Francisco Padollana, did you observe
if there was anything in his possession at that time?
A There was none.
Q While this robbery was going on what was Padollana doing?
A (No answer)

We agree with the appellants that the confessions taken without

assistance of counsel should not have been considered by the
trial court. However, the confessions are not necessary to
support the judgment of conviction.
The testimonies of the prosecution witnesses identifying the
accused-appellants and linking them to the successful
accomplishment of a common plan to rob the passengers of their
valuables, constitute strong and convincing evidence to establish
the guilt of the accused beyond reasonable doubt. The negative
testimonies of the accused-appellants denying their participation
cannot prevail over the positive testimonies of the prosecution
witnesses. (People v. Joselito Villalobos and Roberto Villalobos,
G.R. No. 71526, May 27, 1992) The prosecution witnesses
related their first-hand account of the specific involvement of the
three accused who, armed with a gun and a bladed knife, were
able to overcome the resistance of the passengers to the extent
of inflicting injuries, and successfully stashed away the things

belonging to the victims. Since in a conspiracy, the act of one is

the act of all, every one of the conspirators is equally guilty and
must then suffer the same penalty prescribed by law. This,
notwithstanding the different modes of participation of each one
in the crime. (People v. Quinones, 183 SCRA 747 [1990])
However, the trial court erred in designating the crime committed
as robbery with frustrated homicide, in applying Section 2, Article
294 of the Revised Penal Code, and in appreciating the use of an
unlicensed firearm as an aggravating circumstance. There is no
such crime as robbery with frustrated homicide.

Applying the Indeterminate Sentence Law, the accusedappellants are sentenced to an indeterminate penalty of ten (10)
years and one (1) day as minimum to seventeen (17) years and
four (4) months as maximum. The accused-appellants shall
likewise be credited in the service of their sentence with the full
time of their preventive imprisonment provided that they
previously agreed voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners; however, if
they did not so abide, then they shall be credited with four-fifths
of the time.
SO ORDERED

Section 2 of Article 294 which penalizes robbery that is

accompanied by rape or intentional mutilation, or on the occasion
of or by reason of which any of the physical injuries resulting in
insanity, imbecility, impotency or blindness is inflicted, is certainly
not applicable to the present case. The records do not show any
of such circumstances to be present.
Inasmuch as the prosecution did not established with absolute
certainty the gravity or seriousness of the physical injuries
suffered by Patrolman Pedrano, the Court deems it proper that
the accused-appellants be held liable under Section 4, Article 294
of the Revised Penal Code which states:

FIRST DIVISION
[G.R. No. 119307. August 20, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
RENANTE SISON alias DANTE, accused-appellant.
DECISION
PUNO, J.:

Art. 294. Robbery with violence against or intimidation

of persons. Penalties Any person guilty of robbery with the use
of violence against or intimidation of any person shall offer:

This is an appeal by Renante Sison alias Dante from the

Decision of Branch 44 of the Regional Trial Court of Dagupan
City, First Judicial Region convicting him of the crime of murder.[1]

xxx xxx xxx

The Information against the accused and Jessie Sison

reads:

4. The penalty of prision mayor in its maximum period

to reclusion temporal in its medium period, if the violence or
intimidation employed in the commission of the robbery shall
have been carried to a degree clearly unnecessary for the
commission of the crime, or . . .
Section 4, Article 294 penalizes robbery, in the course of the
execution of which, the offender shall have inflicted upon any
person not responsible for the commission of robbery, serious
physical injuries defined in paragraphs 3 and 4 of Article 263 of
the same code.

That on or about midnight of May 21, 1993, at Barangay

Maticmatic, Municipality of Sta. Barbara, Province of Pangasinan,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, acting in conspiracy and taking
advantage of darkness, armed with a bladed weapon with intent
to kill, evident premeditation and abuse of superior strength, did
then and there willfully, unlawfully and feloniously stab EDWIN A.
ABRIGO, inflicting upon him stab wounds which caused his
instant death, to the damage and prejudice of his heirs.
CONTRARY to Art. 248, Revised Penal Code.

We note that the offense was committed under at least two (2) of
the circumstances mentioned in Article 295. The robbery was
consummated by attacking a moving motor vehicle such that the
passengers thereof were taken by surprise. It was likewise
committed along a street on the regular route taken by the
passenger jeepney with the use of a firearm. According to Article
295, the offenders shall be punished by the maximum period of
the prescribed penalty in Section 4, Article 294, or reclusion
temporal in its medium period.
WHEREFORE, the decision appealed from is hereby
AFFIRMED, with the modification that the accused-appellants
Conrado Lagmay y Garces and Francisco O. Padullana are held
guilty of the offense of robbery defined in Section 4, Article 294,
in the course of the execution of which serious physical injuries
enumerated in paragraphs 3 and 4 of Article 263 were inflicted
and the circumstances mentioned in Article 295 were present.

Both accused were arraigned on September 10,

1993. Renante pled not guilty. Jessie was not arraigned as the
trial judge[2] found him mentally unfit. He was ordered to be
treated at the Baguio General Hospital. His trial was suspended.
[3]
In due time, he recovered. Hence, on May 11, 1994, the trial
judge directed his return to jail to face trial. [4] On June 16, 1994
the prosecution moved to discharge him as a state witness. The
motion was granted despite the opposition of the accusedappellant.[5]
Jessie Sison testified that accused-appellant is his uncle his deceased father being the latters brother. He lives with his
siblings in their family home located at Barangay Leet, Sta.
Barbara, Pangasinan. On 21 May 1993, at about midnight,
accused-appellant and Alfredo Cervantes went to their house. He
was already asleep in the kitchen at that time. Accused-appellant

woke him up saying, I killed someone. Come with me and we will

bury him. Aided by the moonlight, he saw that accused-appellant
was armed with a bayonet and his clothes full of blood. He
refused to go with the two men but because of fear that accusedappellant might strike him with the bayonet, he went with them to
the Sinucalan river. Upon reaching the river, accused-appellant
told him and Cervantes that they would bury the person he
killed. All of them dug the ground where they buried the
cadaver. Then they parted ways, and he went home. He learned
later that the person they buried was Edwin Abrigo.[6]

1. Stab wound 1.5 cm parasternal area left chest penetrating

nipple aspect;

Aurora Sison, Jessies mother, corroborated her sons

testimony. She testified that their family home, where she and her
children live, is located at Barangay Leet, Sta. Barbara,
Pangasinan. At the southside of the house is the Sinucalan
River. At about 12 oclock midnight of 21 May 1993, she was
awakened by the accused-appellant and Alfredo Cervantes. By a
nearby lamp she noticed that accused-appellant was holding a
bayonet with scabbard and measuring about one and a half feet
long. His white T-shirt was stained with blood. Upon entering her
house, accused-appellant proceeded to the room of Jessie and
woke him up. She heard him order Jessie to get a shovel and
bury Edwin Abrigo. Jessie refused but accused-appellant
threatened him with death. After getting the shovel from the
house of Egmidio Sison located about ten (10) to twelve (12)
meters away, Jessie, accused-appellant and Cervantes left the
house. Suspicious, she followed them until the riverbank where
she saw a cadaver. She got frightened and left
immediately. When Jessie returned, he did not speak to her. He
appeared to be in shock. It was only on 23 May 1993, that Jessie
spoke to her and informed her that the corpse which they buried
frightened him.[7]

assessment: Stab wound; Asphyxiation.[9]

Jonathan Abrigo, brother of Edwin, testified that on 11 May

1993, at about 6:30 in the evening, he was in their house located
at the Bliss Housing Project in Barangay Matic-Matic, Sta.
Barbara, Pangasinan. He went out to borrow a carton box from a
nearby store and passed by the house of Molong de Venecia
where accused-appellant, Jessie Sison and others were engaged
in a drinking spree. From two (2) meters away, he heard
accused-appellant say, Have you seen Edwin Abrigo, and that if
you have seen him then we will surely kill him. He reported the
incident to his mother who assured him she would talk to
accused-appellant regarding his threat. He saw Edwin on 20 May
1993, and informed him about the threat from accusedappellant. Edwin responded, I dont know of any wrong I
committed against him. That was the last time he saw his brother
alive. On 23 May 1993, he and his mother could not find
Edwin. They looked for him. A child named Bangkay gave to
them Edwins brown wallet which he found near the river. They
asked several persons to help them find him. They saw a newly
dug grave with flies around it near the river. The grave contained
the corpse of Edwin. They were able to identify Edwins remains
through the gold ring on his finger and the short pants he was
wearing.[8]
Dr. Cristito D. Garcia conducted a post mortem examination
on Edwins cadaver. The Medico-Legal Certificate (Exhibit A) he
issued shows the following findings:
xxx

2. Lacerated wound 0.5 1 cm scapular area, lateral aspect (L)

back.
ASSESSMENT: Cardio respiratory arrest 20
Hypovolemic shock 20

xxx
In defense, accused-appellant testified that at about 7 p.m.
of 21 May 1993, he left his house to work as a carpenter in the
Bliss Housing Project. He returned to his house at about 11:30
a.m. to eat his lunch. At 1 p.m. he went back to work. At about
12:30 midnight, he repaired to the house of Barangay Captain de
Guzman of Barangay Matic-Matic to borrow an icebag because
his son had a fever. On his way back, he saw a light coming from
the housing project and waited for the person carrying it. It was
Alfredo Cervantes. As they walked together, Cervantes asked
him to inform Jessie Sison that Edwin Abrigo is missing and he is
the suspect. When they reached his house, he applied the icebag
to his son. Thereafter, they went to the house of Jessie, woke
him up, and told him about the disappearance of Edwin
Abrigo. Jessie was mum.
Accused-appellant also declared that he had a
misunderstanding with Jessie. It was allegedly brought about by
Jessies use of marijuana and his daughters report that Jessie
was fooling her. He scolded Jessie who apologized. On 22 May
1993, Alfredo Cervantes informed him about the death of Edwin
Abrigo. On 23 May 1993, he learned that the body of Edwin
Abrigo was dug up at Barangay Matic-Matic beside the Sinucalan
River. Later, he and two (2) other men were picked up and jailed
by the policemen of Sta. Barbara. They asked him if he had any
difference with Edwin Abrigo. The three of them were released at
about 8:30 in the evening. After some time, he was again
apprehended and detained together with Jessie Sison in the
municipal jail of Sta. Barbara.
He denied the testimonies of Jonathan Abrigo Aurora Sison
implicating him to the crime at bar. He claimed that he was
wearing a black shirt and a pair of blue pants when he went out
to borrow the icebag on the evening of 21 May 1993. He
admitted that he has been charged previously with the crime of
robbery with rape.[10]
Remedios Sison, accused-appellants wife, corroborated the
testimony of her husband that he went to the house of Barangay
Captain De Guzman on 21 May 1993, at past 12 oclock midnight,
to borrow an icebag for their sick son. She declared, however,
that Cervantes went to their house after the arrival of her
husband from the house of the said barangay captain. She
likewise stated that Jessie Sison and her husband have no
misunderstanding, and the relationship of her husband with
Aurora Sison is pleasant.[11]

Trial court convicted accused-appellant of the crime of

murder, rationalizing as follows:
In an attempt to exculpate himself, accused Renante Sison alias
Dante Sison wants to convince the Court that on May 21, 1993,
at around 12:30 in the evening, he went [out] to borrow an icebag
from the house of Barangay Captain de Guzman. As he had
seen a light coming from the housing project, he waited for Fred
Cervantes. While they were walking and conversing with each
other, Fred Cervantes told him that Edwin Abrigo is missing and
Jessie Sison is the suspect. After reaching their house at 12:40,
they applied the icebag on his son who had a fever. Thereafter,
he and Alfredo Cervantes went to the house of Jessie Sison,
reaching the house at around 12:50. He woke up Jessie Sison
and Alfredo Cervantes told Jessie that he is the suspect. Jessie
Sison was trembling and was not able to say anything.
Rather than corroborating the testimony of her husbands arrival
at their house at 12:40, Remedios Sison, wife of the accused,
testified that her husband arrived at 2:30 in the morning of May
22, 1993.
Accused Renante Sison alias Dante Sison wants to impute the
crime of Murder to Jessie Sison. The Court is not convinced. The
defense of the accused is not worthy of belief. For a careful
evaluation of the evidence adduced by the prosecution discloses
that accused Renante Sison alias Dante and Fred Cervantes
woke up Jessie Sison (co-accused and discharged) on May 21,
1993, at 12:00 in the evening. While Jessie Sison was sleeping in
their house at Leet, Sta. Barbara, Pangasinan, Dante Sison woke
him up and said, I killed someone, come with me and we will bury
him. Jessie Sison refused to go with him but he was afraid as
accused Dante Sison was holding a bayonet. The person buried
is (sic) Edwin Abrigo.
The statement of accused Renante Sison alias Dante to Jessie
Sison, I killed someone, come with me and we will bury him., is
part of the res gestae. It was made under the stress of [an]
exciting event. Ergo, it is admissible against accused Renante
Sison alias Dante.
Jessie Sison could not have made a mistake that the person who
woke him up on May 21, 1993, in the evening, is accused
Renante Sison alias Dante. The latter is his uncle because he is
the brother of his father, and besides, there was moonlight.
Further, when accused Renante (alias Dante) Sison woke up
Jessie Sison, Renantes clothes were full of blood and [he] was
armed with a bayonet. These are incriminating pieces of
circumstantial evidence that point to Renante Sison alias Dante
as the perpetrator of the offense.
There is no question that Edwin Abrigo is dead. The testimony of
Dr. Cristito Garcia and the medico-legal certificate (Exhibit A) are
clear on this point.
The information alleges the qualifying circumstance of evident
premeditation and abuse of superior strength.

The qualifying circumstance of evident premeditation qualified

the killing of Edwin Abrigo to Murder. The testimony of Jonathan
Abrigo is clear that on May 11, 1993, at around 6:30 in the
evening, he was at Matic-Matic, Sta. Barbara, Pangasinan. While
passing by a store, at a distance of two (2) meters, he heard
Dante Sison utter, Have you seen Edwin Abrigo and that if you
have seen him then we will surely kill him. (tsn, May 26,
1994). The prosecution has proved the time when Renante Sison
determined to kill Edwin Abrigo. The accused clung to his
determination to kill his victim. There was sufficient lapse of time
between the determination and execution of the killing.
Abuse of superior strength was not proved.
The aggravating circumstance of nighttime facilitated the
commission of the crime.
The accused failed to show any mitigating circumstance.
The case is covered by Article 248 of the Revised Penal Code
before it was amended by Republic Act Number 7659.[12]
Accused-appellant
was
sentenced
to reclusion
perpetua and to indemnify the heirs of Abrigo in the amount of
P50,000.00. He was also ordered to pay P1,000.00 representing
the expenses of Priscila Abrigo and the cost of suit.
Accused-appellant is now before this Court interposing the
following assignment of errors:
I
The lower court gravely erred in granting the motion to discharge
Jessie Sison in the Information filed by the prosecution and in
allowing him to become a state witness despite the fact that
Jessie Sison is the most guilty person.
II
The trial court erred in giving weight and credence to the
testimonies of Jessie Sison and Aurora Sison which are ill
motivated, fabricated and wholly concocted.
We find no merit in the appeal.
We reject the first contention of the accused-appellant. The
records will show that it is only now that the accused-appellant is
assailing the discharge of Jessie Sison as a state witness.This is
too late in the day. In the early case of US v. Inductivo,[13] where
it was only on appeal that counsel for the accused first argued
against the competence of one Obdulio as a state witness, we
held that x x x it is almost universal rule x x x that aside from
matters jurisdictional, which can only be raised for the first time
on appeal, and aside from a few other exceptions which need not
be noticed, questions not raised in the trial court will not be
considered on appeal.
Moreover, it is difficult to sustain accused-appellants
submission that Jessie Sison is the most guilty of the crime at

bar. The discharge of Sison as a state witness because he does

not appear to be the most guilty is highly factual in nature. The
discretionary judgment of the trial court on this factual issue is
seldom interfered with by appellate courts except in case of
grave abuse of discretion. We do not see any compelling reason
to fault the discharge of Sison as a state witness in light of the
trial courts assessment of the totality of the evidence adduced by
the parties. Examining the evidence, we find no competent
evidence establishing Sison as the most guilty party. Allegedly,
the PNP of Sta. Barbara, Pangasinan had sworn statements of
Danilo Losendo and Rodelio Lurian pointing to Sison as the one
who stabbed the victim. These sworn statements are, however,
hearsay evidence for Losendo and Lurian did not testify in
court. Efforts of the authorities to locate them proved fruitless.
We also reject the second contention of the accusedappellant assailing the credibility of Jessie Sison and his mother,
Aurora Sison. Allegedly, Jessie Sison does not deserve credence
as he was a mental case. The records, however, show that Sison
underwent treatment before he testified in court. In a letter dated
May 20, 1994, Sisons attending physician assured the court that
he has recovered from his mental illness. A reading of his direct
testimony and his answers during the cross-examination reveals
that he could intelligently communicate his perceptions of the
crime at bar. Jessies testimony was corroborated in its material
points by his mother. Both Jessie and his mother have no illmotive to frame up accused-appellant for such a serious crime as
murder. Their credibility is unaffected by trivial inconsistencies in
their testimonies such as whether the night of May 21, 1993 was
a moonlit night, or whether a lamp aided the witnesses in
identifying the accused-appellant. As well-stressed by the
Solicitor General, what is material for the conviction of appellant
is the positive and categorical testimony of Jessie Sison and
Aurora Sison that appellant, armed with a bayonet, came to their
house in the evening of May 21, 1993, told Jessie Sison that he
killed somebody and thereafter coerced him to bury the cadaver
of the victim who turned out to be Edwin Abrigo.[14]
Our rules on evidence allow the conviction of an accused
even if no eyewitness is available provided that enough
circumstantial evidence has been established by the prosecution
to prove beyond reasonable doubt that the accused committed
the crime.[15] Section 4, Rule 113 of the Revised Rules of Court
thus provides:
Section 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.
We hold that the following circumstances which accusedappellant failed to disprove by his feeble defense of denial
proved beyond reasonable doubt that he killed Edwin Abrigo:

1. That on 11 May 1993, accused-appellant

threatened to kill Edwin Abrigo although he was
drunk at that time;
2. That at midnight of 21 May 1993, accused-appellant
left his house and went to the nearby barangay
which was the locus criminis;
3. That accused-appellant, together with Alfredo
Cervantes, woke up Jessie Sison and ordered him
to get a shovel and bury the person killed by
appellant;
4. That at the time accused-appellant woke up Jessie
Sison, he was armed with a bayonet and his Tshirt was full of blood;
5. That accused-appellant, Jessie Sison and Alfredo
Cervantes dug a grave by the riverbank and buried
therein the corpse of Edwin Abrigo;
6. That the confused and inconsistent testimony of
accused-appellant's wife reveals that he got home
not at 12:30 but at about 2:30 in the early morning
of 22 May 1993; and
7. That even before the cadaver of Edwin Abrigo was
dug up, accused-appellant already knew that he
was dead.
We now review appellants conviction of the crime of murder
in keeping with the Courts duty, as an appellate tribunal, to
correct such errors as may be found in the judgment appealed
from, whether they are made the subject of assignment of errors
or not.[16]

We do not agree with the trial court's ruling that evident

premeditation qualified the killing of Edwin Abrigo to murder
based on the testimony of Jonathan Abrigo. The qualifying
circumstance of evident premeditation must be established with
equal certainty and clearness as the criminal act itself. It must be
based on external acts which are evident, not merely suspected,
and which indicate deliberate planning.[17] It cannot be presumed
from mere lapse of time. [18] To authorize its finding, three (3)
requisites must be duly proven, to wit: (a) the time when the
offender determined to commit the crime; (b) an act manifestly
indicating that the offender clung to his determination; and (c) a
sufficient interval of time between the determination and the
execution of the crime to allow him to reflect upon the
consequences of his act.[19] We are not persuaded that evident
premeditation was proved beyond reasonable doubt. While
Jonathan Abrigos testimony seems to indicate that accusedappellant had planned to kill the victim as early as ten (10) days
before the incident, there is no evidence that the accusedappellant clung to his determination. Appellants threat uttered
while intoxicated[20] is insufficient to constitute premeditation when
it was not followed by subsequent acts revealing a firm and
decided purpose to carry out said threats and that he coolly and
with reflection persisted in his purpose to commit the crime. Such
threat may be construed only as a casual remark of a drunken
man.
We agree with the trial court that abuse of superior strength
was not proved. Likewise, we affirm its appreciation of nighttime
as an aggravating circumstance. Nighttime facilitated the
comission of the crime. Indeed, appellant took advantage of it by
immediately burying the corpse of Edwin Abrigo to prevent its
discovery.
Accordingly, appellant should be held liable only for the
crime of homicide defined under Article 249 of the Revised Penal
Code. There being one (1) aggravating circumstance which
attended the killing, the penalty of reclusion temporal provided
under said article shall be imposed in its maximum
period. Applying the Indeterminate Sentence Law, appellants
sentence should be within the range of prision mayor, as the
minimum, and reclusion temporal in its maximum period, as the
maximum.
IN VIEW WHEREOF, the appealed Decision is
MODIFIED. Appellant Renante Sison is found GUILTY OF
HOMICIDE and sentenced to an indeterminate penalty of ten
(10) years and one (1) day of prision mayor, as minimum, to
twenty (20) years of reclusion temporal, as maximum.
In all other respects, the questioned Decision is AFFIRMED.
SO ORDERED.
SECOND DIVISION
[G.R. No. 90419. June 1, 1999]
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee, vs.
ROMANO VIDAL y DANIEL, GLEN ALA y
RODRIGUEZ, and ALEXANDER PADILLA y
LAZATIN, accused-appellants.

DECISION
BUENA, J.:
Sir William Blackstone once said, It is better that ten guilty
persons escape than one innocent suffer.[1]
Appellants Glen Ala, Romano Vidal and Alexander Padilla
were charged with, tried for and thereafter convicted of
kidnapping with rape under an amended Information reading:
"That on or about the 19th day of September, 1987, in the
municipality of Marikina, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping and
aiding one another, while armed with a knife and ice pick, did,
then and there willfully, unlawfully and feloniously kidnap
Geraldine Camacho y Sibarutan by then and there forcing the
latter to a waiting automobile and bringing her against her will to
an uninhabited house in Rodriguez Rizal, Philippines and while in
said uninhabited house, the accused, by means of violence,
intimidation and by the use of noxious chemical substance, one
after the other in conspiracy with each other, willfully, unlawfully
and feloniously have carnal knowledge of Geraldine Camacho y
Sibarutan against her will.",[2]
They were sentenced by the Regional Trial Court of Pasig,
Branch 156, to suffer the penalty of reclusion perpetua and to
indemnify, jointly and severally, the complainant-victim Geraldine
Camacho, in the amount of Thirty Thousand (P30,000.00) Pesos
without subsidiary imprisonment in case of insolvency and to pay
their proportionate share of the costs;[3] while the other accused,
Christopher Cristobal, Henson Salas and Meliton Reyes were
acquitted. The dispositive portion of the decision a quo reads:
"IN VIEW OF ALL THE FOREGOING, the Court finds the
accused ROMANO VIDAL y Daniel, GLEN ALA y Rodriguez and
ALEXANDER PADILLA y Lazatin guilty beyond reasonable doubt
of the offense charged and hereby sentences said accused to
suffer the penalty of reclusion perpetua, to indemnify, jointly and
severally, the complainant-victim, Geraldine Camacho y
Sibarutan, in the amount of THIRTY THOUSAND PESOS
(P30,000.00) in compliance with the mandate in Articles 100,
104(3), 107 and 345 of the Revised Penal Code without
subsidiary imprisonment in case of insolvency and to pay their
proportionate share of the costs.
"In the service of their sentence, the accused shall be credited in
full with the period of their preventive imprisonment.
"On the other hand, accused CHRISTOPHER CRISTOBAL y
Masagana, MELITON RAYOS y Santos and HENSON SALAS y
Calderon are hereby acquitted of the offense charged with costs
de oficio.
"The Warden of the Marikina Municipal Jail and the OIC, National
Training School for Boys, Sampaloc, Tanay, Rizal are hereby
ordered, respectively, to release the persons of accused
CHRISTOPHER CRISTOBAL y Masagana, MELITON RAYOS y
Santos and HENSON SALAS y Calderon from
custody/confinement unless there exists any other order or
orders to the effect that they should remain confined under
detention.
"SO ORDERED.[4]

The prosecution's version of the incident was anchored

mainly on the testimony of the victim, 16 year old Geraldine
Camacho. She recalled that on September 19, 1987, she was at
the Roosevelt College in Marikina taking a dry-run examination
preparatory to the National College Entrance Examination
(NCEE). Geraldine left the compound at about 12:45 in the
afternoon and waited for a jeepney ride at the corner of Sta.
Teresita Village along J.P. Rizal Street, Lamuan, Marikina. The
six accused then approached her. One of the accused poked a
knife at her left side while another poked an ice pick at the right
side of her body. The four others surrounded her, two in front and
two behind her. Thereafter, Geraldine was led towards Sta.
Teresita Chapel where a black car was waiting. Upon reaching
the chapel, Geraldine was pushed inside the car and was
blindfolded. Four of the accused boarded the car. Geraldine was
later brought to a house after about an hour of travel. She was
led inside a room where her hands and feet were tied to a
chair. A few minutes later, she heard another car arrive and
canned goods and alcoholic beverages being opened. Shortly,
the accused went inside the room, untied her and forced her to
lie down. Thereupon, Geraldine was made to smell a substance
which made her drowsy. She felt that someone mounted her and
had carnal knowledge of her for about 30 minutes, after which
three more of the accused followed, one after the other for about
the same duration as the first. At around 7 o'clock in the morning
the following day, Geraldine was awakened by the noise of
bottles being broken outside. Hungry and feeling pain in her groin
and private part, she found herself still blindfolded and tied to the
chair with her clothes and shoes already on. Moments later, the
accused entered the room and repeatedly asked her if she knew
the fraternity "Hard Core." Whenever she denied having
knowledge about said fraternity, the accused would punch her on
the different parts of her body.
Subsequently, Geraldine was untied, brought outside the
house and made to board a car together with four of the
accused. She was later dropped at the NGI Public Market in
Marikina where her blindfold was removed. She was threatened
not to tell what happened to her otherwise she and her parents
will be killed.
Geraldine boarded a tricycle and went to her grandmother's
house in Parang, Marikina and ate breakfast. Later, her mother
arrived but did not talk to her for she was mad at her for not going
home that night. In the afternoon, she was brought home by her
mother. Fearful that her parents would get angry, Geraldine lied
that she attended a class reunion when asked where she went
the previous night. Not believing her story, her parents went to
her school the next day to verify her story and were told by her
classmate that there was no class reunion. Geraldine finally
revealed the incident to her parents.
On September 22, 1987, Geraldine and her parents went to
the Marikina Police Station to report the incident. She was
referred to the PC Crime Laboratory at Camp Crame, Quezon
City for physical examination. The examination conducted by Dr.
Desiderio A. Moraleda revealed that Geraldine suffered
hematoma on the left breast and her internal sex organ showed a
healing shallow laceration of the hymen at 3 and 9 o'clock. The
external vaginal orifice offers strong resistance to the introduction
of the examining index finger and virgin-sized vaginal speculum.
[5]

After submission of the above-stated medical examination

report to the Marikina police, an investigation was conducted by
Pat. Jota. Through the help of one Marites Quasay, they were
able to trace the whereabouts and identity of one of the
appellants, Romano Vidal. During the interrogation, Romano
Vidal denied the accusation but named appellant Alexander

Padilla. On September 30, 1987, during the investigation,

appellant Padilla voluntarily admitted being in the company of
appellants Vidal and Ala when they abducted Geraldine but
denied participation in the rape.
On the same day, Geraldine positively identified appellants
Vidal, Padilla and Ala in a police line-up after which she executed
a sworn statement.[6] Thereafter, the police, together with the
appellants and Geraldine, proceeded to Aqua Pool Resort, San
Rafael, Montalban where the crime was committed, per appellant
Padillas confession. The appellants re-enacted the crime and the
police photographer took pictures thereof. On October 3, 1987, in
another police line-up, Geraldine identified the other two accused
and thereafter executed a Supplemental Affidavit.[7]
The accused-appellants denied any participation in the
crime imputed against them, alleging that they were somewhere
else when the crime was committed.
Appellant Romano Vidal claimed that on September 19,
1987 at around 12:30 in the afternoon, he went to the house of
appellant Alexander Padilla at Batino St., Project 3, Quezon City
to fetch their girlfriends Harlene Baldemero and Maritess Aclad at
Quirino High School. When they arrived at the school premises,
they did not find their girlfriends. After waiting for about one half
hour, appellant Vidal went home but asked appellant Alexander
to wait for the girls and to fetch him in his house should the girls
arrive. Fifteen minutes after appellant Vidal arrived in his house,
appellant Padilla arrived and told him to meet their girlfriends at
St. Joseph Church located at the corner of Narra St. and Aurora
Boulevard, Project 3, Quezon City.They reached the church at
about 3:30 p.m. and met their girlfriends near the office of the
priest. Both appellants helped their girlfriends copy their
assignments. They left each other's company at 11:30
P.M. Appellant Vidal went home, had supper and slept.
Appellant Glen Ala, on the other hand, narrated that he was
playing basketball at the plaza of Rona's Garden, Loyola Heights,
Quezon City on September 19, 1987 at around 10 o'clock in the
morning. He went home at 12:30 noon, ate his lunch and slept
until 3 o'clock p.m. Thereafter, he went to Rona's Garden and
assisted in fixing the fence because a public dance will be held
there until 5 o'clock. Then he went home to take a bath for the
dance. He went back to the plaza to check on the sound system
but since it had not arrived, he proceeded to the house of Leonila
Batiller where he played chess with the latter's son Bong, until
8:00 p.m. The dance was postponed so he headed back to
Batiller's house and played chess till 11 o'clock in the evening,
afterwhich, he headed for his home and slept.
Appellant Padilla, other than his voluntary confession, did
not present any evidence although he participated in the trial.
Weighing the evidence presented by the prosecution and
the defense, the trial court gave credence to the prosecutions
version ratiocinating in this wise:
There is not much ado (sic) to the fact that complainant was,
indeed, a victim of multiple rape. Her positive and categorical
narration of abduction, detention and rape bears the earmarks of
credibility. While there are certain inconsistencies in her
testimony, the same refer merely to minor details and do not
shaken (sic) her overall credibility. The evidence amply
demonstrate that after she was abducted by six (6) men, she was
brought to an undisclosed house and there detained. Just prior to
the consummation of the rape, she was made to smell a
substance which caused her to become dizzy and drowsy until
she fall (sic) asleep. Her abusers employed a subtle or
sophisticated form of overcoming her resistance by the use of

such substance so they were able to consummate their felonious

objective. x x x x
But the Court's primary concern centers on whether or not all the
accused were really participants in the commission of the crime
charged considering that during the police line-up identification,
not all of the them were positively identified by the
complainant. Besides, as admitted by complainant herself, she
had been ravished only four (4) times on that same occasion by
different men.
xxxxxxxxx

19, 1987 based on serious inconsistencies,

uncertainties and improbabilities in her testimony.
2. The court erred in completely disregarding the
credible testimony of disinterested defense
witnesses spouses Federico and Erlinda Magayon.
3. The court erred in convicting the accused of the
crime charged despite failure of the prosecution to
prove his guilt beyond reasonable doubt.
Accused-appellants Romano Vidal and Alexander Padilla
filed their brief on April 6, 1995 averring that:

Upon the foregoing factual findings, there can be no doubt about

the participation of accused Romano Vidal, Alexander Padilla,
Glen Ala and Christopher Cristobal in the crime charged as
having been established by sufficient and competent
evidence. The first three (3) accused were identified to have
brought the victim to the undisclosed house where the rape
occurred while the fourth accused was instrumental only as to the
abduction of the victim. The latter was never identified as one of
those who boarded the car. Concerning accused Henson Salas,
while he was positively identified by the victim, his participation in
the criminal act was not established beyond reasonable
doubt. The oral confession of accused Alexander Padilla is not
binding upon him and therefore, hearsay. The same is true with
respect to accused Meliton Rayos more so that he was not
positively identified by the complainant as one of the perpetrators
of the act. Thus, there was no conspiracy.

"The trial court erred in giving credence to the testimony of the

complaining witness, Geraldine Camacho, despite the
inconsistencies, improbabilities and contradictions that riddled
her testimonies which seriously eroded her credibility."

The Court notes that the extra-judicial confession of accused

Alexander Padilla was taken without the advice of counsel. Even
granting that said accused waived his right to counsel, the same
was never made in writing and with the assistance of counsel
and, therefore, the waiver is not valid. However, even if the Court
rejects the admissibility of said confession, accused Alexander
Padilla is not absolved from criminal responsibility because there
is still much from the prosecution evidence which sustains his
conviction of the crime charged.

In her testimony, complainant Geraldine Camacho narrated

that while she was waiting for a ride at the Sta. Teresita, Lamuan,
six men approached and surrounded her. Two men were in front,
two were at the back while the two were at her side. The men on
her side poked a knife and an ice pick. [11] When asked if she
recognized the men who poked a knife, complainant answered in
the affirmative.[12] However, upon questioning by the court,
complainant recanted by saying that she recognized only one of
the two men and pointed at accused Christopher Cristobal.[13]

The alibi and denial interposed by accused Romano Vidal,

Alexander Padilla, Glen Ala and Christopher Cristobal even if
supported by their relatives, friends and neighbors cannot prevail
over their positive identification by the victim as perpetrators of
the crime. It is well-settled rule that alibi is a weak defense for it is
easy to concoct but hard to disprove. For the defense of alibi to
prosper, it is not enough to prove that the accused was
somewhere else when the crime was committed, he must
likewise demonstrate that it was physically impossible for him to
have been at the scene of the crime during its commission.
In the case at bar, the place of Montalban where the crime was
committed is just a few kilometers from Quezon City or Marikina
where the aforementioned accused reside and the same could
be traversed in less than an hour and therefore, the possibility of
their being at the crime scene is beyond question.[8]
The case was certified to this Court which required the
parties to submit their respective briefs. Accused-appellant Glen
Ala filed his brief on May 3, 1990 assigning the following errors:
1. The court a quo erred in giving credence to the lone
and highly incredible testimony of complainant
Geraldine Camacho that the accused was one of
those who kidnapped and raped her on September

Reduced to bare essentials, the only issue to be resolved is

one of credibility. In reviewing the findings of trial courts
respecting credibility of witnesses, we have, in a plethora of
cases, accorded great weight and respect to the conclusions
reached by the court below which had the opportunity to observe
closely in the first instance the demeanor of the witnesses
presented before it.[9] The only exception is when the trial court
overlooked or misunderstood significant contrarieties in the
testimony of witnesses which if considered would materially
affect the result of the conviction.[10]
The case at bar falls under the recognized exception.

The discrepant testimony of Geraldine is elucidated, thus:

Q Miss Camacho, on April 28, 1988 when you testified before
this Honorable Court, you were asked this question and
which I quote and which appears on page 11 of the
transcript of the stenographic notes, How many poked a
knife on you? And your answer was Two, sir. Question,
who were this (sic) two? Answer, I dont know them. Do
you still remember having asked those questions and
had given those answers?
A Yes, sir.
Q When you said I dont know them., do I understand from
you that you do not know the identity of these two
persons who poked a knife at you either by their named
and faces?
A I do not know their names but I came to know them
through their faces when they poked a knife at me,
sir.
Q So, you are now sure that you know them by faces. Is that
correct?
A Yes, sir.
Q Again, I would like to invite your attention on the same date
of hearing wherein upon questioning of this Honorable

Court which appears on page 13 of the same

stenographic notes, this Honorable Court asked you and
the question runs this way You testified earlier that
two men poked something at you? And your answer
was Yes, Your Honor. Question Do you know this
two?Answer, Only one, Your Honor. I cannot
remember the other one. Awhile ago you said that you
know the two by their faces and yet when you were
asked by this Honorable Court, you said you only knew
one and not the two of them?
A Yes, sir. In name only, sir. But the other one I do not know
the name of the other one.
Q But did you not say awhile ago that you do not know these
two persons by their names but you knew them by
faces?
A Yes, sir. I do not know their names but I know them through
their faces, sir.
Q Are you now sure that you know them by their faces?

A Could I point to him now?

COURT: Go down and tap his shoulder.
Interpreter:
Witness going down the witness stand then tapping the
shoulder of a person who identified himself as Glen
Ala, one of the accused in this case. It is noted that
witness identified the said accused by striking the
shoulder of the said witness with extra force.
[15]
(Underscoring Ours)
Again, complainant substantially deviated and contradicted
her earlier statement when she unequivocably stated that
appellant Glen Ala was not one of the knife wielders:
Q Miss Camacho, on April 28, 1988, you testified earlier that
two men poked something at you and your answer was
Yes, Your Honor.. Do you still remember that?
A Yes, sir.

A No, sir. I know the other one through his face.

Q Another question was asked of you by the Court Do you

know these two? And your answer was Only one, Your
Honor. I cannot remember the other one. Next question,
You go down the witness stand and point to him Then,
followed by the manifestation of the Interpreter Witness
going down the witness stand and pointing to a person
identifying himself as Christopher Cristobal, one of the
accused in this case. So, Miss Camacho, what you did
earlier is not true. Isnt it?

COURT:

Witness:

Q Who is he?

Which is not true, sir?

A He is not around, Your Honor.

Atty. Farcon:

INTERPRETER:

When you imputed to Glen Ala as one of the knife

wielder. Because on April 28, 1988 before this Court,
you only identified Christopher Cristobal notwithstanding
the fact that Glen Ala was also present in Court in April
28, 1988.

A Yes, sir.
Q The two of them?
A No sir, I do not know the face of the other one.
Q So, it is not true that you know the two persons by
their faces?

Cristobal is not in Court, Your Honor. All the other five

accused are present.
Q The one you know by face is not in Court?
A Yes, Your Honor.
Q Subsequently, did you know the other one either by his
name or by his face at this point in time?
A No, Your Honor.[14] (Underscoring Ours)
Complainant positively identified accused Christopher
Cristobal as one of the two men who jabbed a knife. Yet, when
further questioned by the defenses counsel, she pointed at
accused-appellant Glen Ala as the one who poked a knife at her,
thus:
Q Now, would you also say that the two men who were at
your back rode in the car going to Montalban?
A No, sir.
Q How about the two men who poked the ice-pick to your
right side and the knife wielder to your left side, did
these two men ride in the car that brought you to
Montalban?
A Only one of them, sir.
Q And who among these two men, was it the knife
wielder or the ice pick wielder who rode in that car
that brought you to Montalban?

Court:
Witness may answer the question.
A What was asked this morning was if he was one of those
who boarded the vehicle so I identified him who boarded
the vehicle.[16]
If complainant was so positive that one of the knife wielders
boarded the vehicle, pointing to appellant Ala, why did she insist
that she only recognized one of the two men who jabbed a knife
at her?
Still on another point, complainants identification of the
other abductors in like manner is indistinct. In her testimony of
February 10, 1988, complainant narrated that after her abductors
removed her blindfold at the NGI Market, somebody opened the
door of the car for her. When asked who opened the door, she
said she could not recognize him because the sun was glaring.
[17]
However, when asked the same question on May 17, 1988,
she identified accused-appellant Glen Ala explaining that the
glare of the suns rays were not hitting her eyes because her
head was bent and she was looking back at them. She said:
Q According to you when the car reached the NGI market
where you were made to alight, will you tell the Court
where was your blindfold removed. Was it after or you
were already alighted from the car?

A I have not alighted yet from the car. The door was opened. I
was facing the door when they removed my blindfold,
sir?
Q You were the one who opened the door before you
alighted?
A No, Sir.
Q Who opened the door for you?
A I do not know the name, sir.
Q But you know the face?
A Yes, sir.
Q Will you look among these people inside?
A He is there.
Interpreter:
Witness pointing a person who answered in the name of Glen
Ala, one of the accused in this case.
Q When you testified on February 10, 1988 you were asked
also who opened the door for you and you said you
could not recognize him because of the glare of the
sun. Now you tell the Court and point to Glen Ala. When
did you come to know it was Glen Ala who opened the
door for you?
A When he entered the car, sir.
Q And the glare of the suns rays was hitting your eyes?
A My head was bend and I was looking back at them, sir.
Q I read to you the transcript of the hearing of February 10,
1988 page 13 and I quote: Q: Could you look at the
courtroom and tell us now if you can see the person
who opened the door? A: I was not able to recognize
who was the one because the sun was glaring, sir. Do
you remember having asked that question and gave the
same answer?
A Because when that question was first asked to me I was
not able to recall exactly what happened but when I
interviewed the incident this hearing I was able to recall,
sir.[18]
The obvious contradictions in the complainants testimony
are further shown when she was asked about the manner she
was raped. Complainant narrated that she was brought to a
room, still blindfolded, where she was tied to a bench (which she
later said to be rattan chair). The accused entered the room,
untied her, made her smell a substance which made her
dizzy.She was ordered to lie down on the floor and it was in that
position that the accused undressed her. Few minutes later, she
fell asleep and did not know what had happened the whole night.
[19]
She woke up at seven oclock the following morning and felt
hungry and pain in her private parts.[20]
Again, on further questioning by the defenses counsel,
complainant controverted her previous statement asserting that
after she was made to smell something, she remained
conscious[21] and even described in detail how the accused
molested her.[22] Not only that, complainants testimony in court
also substantially repudiated material points in her Sinumpaang
Salaysay given before the Marikina Police Station.

In her sworn statement dated October 3, 1987 complainant

explicitly asserted that Christopher Cristobal and Henson Salas
were the two men who poked a knife and an ice pick at her,
materially deviating from her earlier statements in court. Hence,
in questions and answers nos. 6, 7 and 8, complainant stated:
06.T: Kung gayon igala mo ang iyong paningin sa loob ng
tanggapang ito at ituro mo kung sino ang mga lalaking
ito na nakahanay sa walong iba pang kalalakihan?
S: Siya po ang isa (Affiant pointing to a male person who
when asked gave his name as Christopher Cristobal y
Masaganda, 16 years old, student, native of Quezon
and residing at No. 17 Lopez Jaena St., Jesus dela Pea,
Marikina, Metro Manila) at ito pa po ang isa (Affiant
pointing to another man who when asked gave his
name as Henson Salas y Calderon 16 years old,
native and residing at No. 81 Lopez Jaena St., J. dela
Pea, Marikina, Metro Manila, who were among persons
of Mario Roca, Arturo Mirabuena, Ramon Jacinto,
Edurardo Sanchez, Anthony Nene, Francisco Delos
Reyes, all detainees of Marikina Municipal Jail with the
participation of two other persons namely; Levi Luna of
Project 3, Quezon City and Cirilo Mahusay of No. 12 BB
Ave. Concepcion, Marikina, MM)
07.T: Ano ang naging partisipasyon ng dalawang lalaking
ito na iyong itinuro?
S: Silang dalawa ang tumutok sa akin na kasama ang
apat na iba pa.
08.T: Kailan at saan ba itong sinasabi mo na tinutukan ka ng
nasabing dalawang lalaking ito?
S: Noon pong humigit kumulang sa ka 12:45 ng tanghali
Septiembre 19, 1987 doon sa J.P. Rizal St. Lamman,
tapat ng Sta. Teresita Village, Marikina, Metro Manila.
[23]
(Underscoring Ours)
Complainant also stated in her sworn statement dated
September 30, 1987 that she immediately reported the incident
to her parents.[24] In her testimony however, complainant
maintained that she told the incident on September 21, 1987
because she was afraid of her mother.[25]
Again, in her sworn statement of October 3, 1987,
complainant claimed that the six (6) accused were in the car
when they brought her to the NGI Market in Parang, Marikina,
which contradicted her testimony that there were only four men in
the car when she was brought to that place.
While courts generally brush aside inconsequential
contradictions between declarations of the affiant in his sworn
statements and those in court, the rule is otherwise where the
discrepancies touch on substantial and irreconcilable facts such
those omissions in the affidavit concerning important details
which the affiant would not have failed to mention and which
omission could well affect the credibility of that affiant.[26]
We cannot understand why the trial court failed to entertain
serious misgivings about the patently inconsistent and
contradictory testimony of the complainant. True, Geraldine
appeared clear and straightforward on direct examination, where
questions and answers could be prepared and rehearsed
beforehand. But she was a different witness when the court and
the defense counsels took over the questioning. Her testimony
was obviously not as clear and straightforward, as the trial court
would want us to believe. Geraldines overall demeanor, the
serious gaps in her testimony, the uncertainties in identifying the

accused during the testimony, her fickleness in answering the

questions hardly give the kind of credence to her supposed
positive-testimony which would warrant a conviction based on the
quantum of evidence required by our penal laws.[27]
In crimes against chastity, the testimony of the offended
party should not be received with precipitate credulity. The
exacting standard of proof beyond reasonable doubt acquires
more relevance in rape because such charges are fairly easy to
make but difficult to establish, and harder still to defend by the
accused party, who may be innocent.[28]
While it is true that accused-appellants defense of alibi is
weak, the same being easy to fabricate, [29] such defense
assumed importance and became crucial in negating their
criminal liability, especially because the prosecutions evidence is
frail and effete[30] and thus failed to prove beyond reasonable
doubt the identity of the persons who committed the crime.[31]
Alibi should be considered in the light of all the evidence on
record for it can tilt the scales of justice in favor of the
accused. Stated differently, when an accused puts up the
defense of alibi, the courts should not at once have a mental
prejudice against him. For, taken in the light of all the evidence
on record, it may be sufficient to acquit him.[32] It is a hornbook
precept that the evidence for the prosecution must stand or fall
on its own merit and cannot be allowed to draw strength from the
weakness of the defenses evidence.[33]

"Q - Will you please take your time, Mr. Magayon and
examine this sketch and tell before this Court if this is
the fix place in which you were living as you said?
"A - This is my house, sir ( witness referring to a portion of the
sketch with the written word, Administration Office Toll
gate).
xxxxxxxxx
"Q - In this sketch, there appears a gate, is this correct?
"A - Yes, sir.
xxxxxxxxx
"Q - Mr. Magayon, how wide is this gate?
"A - It's just a small gate, it's good for two persons to pass
there.
"Q - How about the line appearing parallel to the gate, what
line is this?
"A - It's a fence, sir.
xxxxxxxxx
"Q - How tall is this fence?
"A - It's quite tall, sir.

While it may be true that one of the accused gave a

confession, this confession should not be made the basis of the
conviction. For one, appellant Padilla's admission was obtained
in total disregard of his rights as guaranteed by paragraph (1),
Section 12, Article III of the 1987 Constitution, which provides:

"Q - Mr. Magayon, this drawing appearing in this sketch, what

is this?

"SEC. 12.(1) Any person under investigation for the commission

of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of
counsel."

"Q - Mr. Magayon, in reaching this resthouse identified as

Exhibit 3-, can you reach this without passing the gate,
the front gate?

It is true that appellant Padilla was informed of his right to

remain silent and to counsel, his confession was nonetheless
taken without the advice of his counsel. Even if he did waive it,
no written waiver, executed in the presence of counsel, was
offered in evidence. Consequently, appellants' alleged admission
of the crime is inadmissible in evidence [34] pursuant to paragraph
3, Section 12, Article III of the Constitution.[35]

"A - A resthouse, sir.

xxxxxxxxx

"A - No, sir, we have to pass this gate to reach that Exhibit 3E.
"Q - There is no other way in reaching this resthouse except
thru this gate?
"A - Yes, sir.
"Q - The gate which you have identified as Exh. 3-B, can a
car pass thru this?
"A - No, sir.

The right to counsel has been constitutionalized to curb

duress and other undue influence in extracting confessions from
a suspect in a crime. 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. Indeed, any waiver of the right to counsel without the
assistance of counsel has no evidentiary value.[36]

"Q - You are sure of that?

Moreover, accused Padilla's allegation that the crime was

committed at the Aqua Pool Resort in Montalban, Rizal is of
doubtful veracity. The testimony of Federico Magayon,
corroborated by his wife Erlinda Magayon, undisputably show
that the crime could not have taken place in the said resort. The
sketch of the resort and the pictures[37]taken reveal that to enter
the abandoned resort, one must pass through a small gate. To go
to the abandoned bungalow where the crime was allegedly
committed, one must pass through the caretaker's
house.Defense witness Federico Magayon, thus said:

"Q - Were you alone at that time?

"A - Yes, sir.

"Q - Alright, Mr. Witness, on September 19, 1987, between
1:30 or 2:00 in the afternoon, where were you?
"A - I was at home, sir.

"A - There were several of us including the basket makers, sir.

"Q - You said that your wife was living with you?
"A - Yes, sir.
xxxxxxxxx
"Q - On that September 19, 1987 as you said at around 2:00
in the afternoon you and the other basket-makers

numbering seven were outside the house of yours, do

you recall having seen any car parked outside this
house of yours?
"A - None, sir.
"Q - Not even a black car?
"A - None, sir.

accused-appellants Romano Vidal y Daniel, Glen Ala y

Rodriguez and Alexander Padilla y Lazatin are ACQUITTED, on
grounds of reasonable doubt, of the crime charged and ordered
released from prison unless they are being held for some other
lawful cause. The Director of Prisons is DIRECTED to implement
this Decision and to report to this Court immediately the action
taken hereon within five (5) days from receipt hereof.
SO ORDERED.

"Q - How about at least six persons of younger age and a

lady or a girl?
"A - None, sir.

SECOND DIVISION

"Q - From what time to what time did you work or did you stay
in that position of yours in that house of yours, outside
your house?
"A - Until about 5:00 o'clock, sir.
"Q - How about your other companion, as you stated earlier,
how long did they stay there?
"A - Others went home, others, slept, sir.
xxxxxxxxx
"Q - Between 5:00 o'clock when you stopped working up to
8:00 o'clock in the evening, when you said your wife and
you slept, did you notice any person that went inside
that place of yours?

[G.R. No. 116281. February 8, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1
ROMULO GUTIERREZ, JR., accused-appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision,[1] dated February 15,
1994, of Branch 42 of the Regional Trial Court of Pinamalayan,
Oriental Mindoro, the dispositive portion of which reads:

"A - None, sir, because the gate was close, sir.

"Q - When you said that it is close, do I understand that it was
closed or locked?
"A - It's just closed with a lock or something to lock it, a hole.
xxxxxxxxx
"Q - Alright, how about on September 20, 1987, what time did
you wake up?
"A - 5:00 o'clock, sir.
"Q - In the morning?
"A - Yes, sir.
xxxxxxxxx
"Q - Did you see any other person other than your wife and
those living with you inside this place?

WHEREFORE, premises considered, this Court finds accused

SPO1 ROMULO GUTIERREZ, JR. guilty beyond reasonable
doubt of the crime of MURDER defined and punished under
Article 248 paragraph 5 of the Revised Penal Code as charged
with aggravating circumstances of abuse of superior strength,
that advantage was taken by the accused of his public position,
and that the crime was committed in contempt of or with insult to
public authority, one of which is offset by the mitigating
circumstance of voluntary surrender, the imposable penalty
should have been death, but said penalty was abolished under
the 1987 constitution by reason thereof, this Court sentences him
to suffer the penalty of RECLUSION PERPETUA, and he is
hereby ordered to pay to the heirs of Antonio Mercene, Jr. the
following:
1) P50,000.00 as indemnity for the death of Antonio
Mercene, Jr.;

"A - My worker, sir.

xxxxxxxxx
"Q - Aside from your workers, is there any other person like
teenagers at least six persons and a girl?
"A - None, sir."[38]
We sympathize with the complainant who was undoubtedly
ravished by four (4) men. But we can not sustain the trial courts
decision that the accused-appellants were indeed the
perpetrators of the crime. It is only when the conscience is
satisfied that the crime has been committed by the person in trial
that the judgment be for conviction. For only when there is proof
beyond the shadow of doubt can we be certain beyond doubt that
only those responsible should be made answerable.
WHEREFORE, the decision of the Regional Trial Court of
Pasig, Branch 56 is hereby REVERSED and SET ASIDE. The

2) P224,000.00 as compensation for the victims loss

of earning as a duly elected Municipal Councilor of
Pola, Oriental Mindoro during the May 11, 1992
Local Elections;
3) P90,000.00 as reimbursement of the expenses
incurred for the wake, burial and funeral services
for the deceased Antonio Mercene, Jr.;
4) P150,000.00 as support in the form of expenses for
education of the two (2) minor children of the
deceased;
5) P100,000.00 as moral damages for the mental
anguish suffered by the heirs of said deceased;
and

6) to pay the costs.

4. Linear laceration, 0.9 cm. in length, 0.2 cm. in depth

lower right lip

SPO1 Romulo Gutierrez, Jr., having been convicted of the crime

of murder, the property bond posted by bondsmen Constancio
Gutierrez, Virgilio Diona, and Feneta Lavalos-Diona for his
provisional liberty is hereby cancelled and released, and authority
is hereby given to the Acting Branch Clerk of Court of this Court
to detach from the records the certificates of titles, and return
them to the bondsmen, duly receipted.
SO ORDERED.
The information[2] in this case charged
That on or about the 17th day of October, 1992 at 2:30 oclock in
the afternoon, more or less, in barangay Batuhan, municipality of
Pola, province of Oriental Mindoro, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, a
Police Officer, while armed with a revolver and with a decided
purpose to kill, did then and there, wilfully, unlawfully and
feloniously attack, assault and shoot therewith ANTONIO
MERCENE JR. a duly elected municipal councilor, inflicting upon
the latter a gunshot wound and multiple abrasions and laceration
in different parts of the body which caused his untimely and
instantaneous death.
That in the commission of the crime, the qualifying circumstances
of treachery and evident premeditation and the aggravating
circumstances of abuse of superior strength, that advantage was
taken by the accused of his public position, that the crime was
committed in contempt of or with insult to public authorities, are
attendant.

5. Elliptical abrasion, 4 cms. in length, 1.5 cms. in

width, region of the left scapula.
6. Gunshot wound, 0.4 cm. in diameter, oval in shape,
edges inverted, with blackening around the
gunshot wound and contusion collar, 5.5 cms. in
diameter, behind the left ear. This wound is the
entrance wound, penetrating the left anterolateral
neck muscles, transecting the left carotid vessels,
with formation of hematoma at the left lateral neck,
hitting the apex of the left lung, perforating the
ascending aorta and fracturing the 2nd and 3rd rib,
about 3.5 cms. from the midsternal region.
7. Hemothorax, with evacuation of about 1.5 liters in
the chest cavity.
CONCLUSION:
That the cause of death was due to acute hemorrhagic
shock secondary to gunshot wound, transecting the left
carotid vessels and perforating the ascending aorta.[5]
She likewise issued a death certificate (Exh. B)[6] which
states the following:
CAUSE OF DEATH:
I. Immediate cause: a. Acute Hemorrhagic

[3]

Accused-appellant at first pleaded not guilty, but later,

through a new counsel, withdrew his plea and moved for
modification of the order of trial pursuant to Rule 119, 3(e) of the
Rules on Criminal Procedure invoking his plea of selfdefense. The trial court ruled that accused-appellant was actually
entering a conditional plea of guilty and thus entered a plea of not
guilty for him. At the same time, it denied accused-appellants
motion for a modification of the order of trial.[4]
The prosecutions first witness was Dr. Alita H. Fetizanan,
Municipal Health Officer of Pola, Oriental Mindoro. She testified
that on October 17, 1992 at 6 p.m. she performed an autopsy on
Mercene, Jr. She submitted an autopsy report (Exh. A) which
contains the following findings:
FINDINGS
1. Abrasion, 5 cms. in length, 1 cm. in width, above
the right eyebrow, temporal side
2. Abrasion, 1.5 cms. in length, 1 cm. in width, beside
the right eyebrow, temporal side
3. Abrasion, 1 cm. in length, 0.5 cm. in width, 1 cm.
below the second lesion

Shock
Antecedent cause: b. Gunshot wound, left post
auricular
The prosecutions next witness was Arnel Marasigan
Aranas, a fellow member of the deceased Antonio Mercene, Jr. in
the Sangguniang Bayan of Pola. Aranas knew both Mercene, Jr.
and accused-appellant. He testified[7] that Mercene, Jr. was a
member of the Task Force Dagat of the Sangguniang
Bayan. According to him, Mercene, Jr. wrote to SPO4 Romeo V.
Delmo, accused-appellants superior, charging accused-appellant
with grave misconduct (Exh. C).[8] Mercene, Jr.s complaint was
based on an incident which happened on August 25,
1992. Aranas said that he and Rosie Rivas accompanied the
deceased on an inspection trip along the Casiligan river in Pola
because of Rivas complaint that accused-appellant had been
poaching in the area in which she had been granted the
exclusive right to catch lapu-lapu. Rivas had asked Mercene, Jr.
for assistance. Aranas said that they saw accused-appellant with
companions at the riverbank, and that Rosie Rivas alighted from
the banca they were riding on to talk to accusedappellant. Aranas said he heard accused-appellant telling
Rivas, Bakit may kasama ka pang Konsehal fry at CAFGU
fry (Why do you have to be accompanied by a councilor and

CAFGU fry)? Later, according to Aranas, they again met

accused-appellants group in the middle of the river. Accusedappellant shouted invectives at them, Putang ina ninyo, mga
Konsehal fry at CAFGU fry, masisira ang aming lambat (You
s.o.b. Councilor and CAFGU fry. Our fishing nets are going to be
destroyed).
Because of that incident, Mercene, Jr. also wrote a letter
(Exh. D)[9] on September 14, 1992 to the Peoples Law
Enforcement Board (PLEB), complaining against accusedappellant for blocking their way with fishing nets and shouting
expletives at them. Aranas said accused-appellant was at that
time under the influence of liquor.
Continuing, Aranas testified that the deceased also filed a
complaint against accused-appellant with the Philippine National
Police (PNP) Provincial Command. PNP Chief Inspector Edwin I.
Corvera sent for both accused-appellant and Rosie Rivas, as a
result of which they signed an agreement (Exh. F), [10] dated
October 16, 1992, whereby accused-appellant agreed not to
catch fish within the area of Rosie Rivas concession. In
exchange, Rosie Rivas agreed not to press charges of illegal
fishing against accused-appellant. But a day later, Aranas said,
he learned from Rosie Rivas that accused-appellant had killed
Mercene, Jr.
The prosecution presented two other witnesses to the
shooting: Dante Pajaron, a supplier of gravel and sand, and his
helper Jose Advincula.
Jose Advincula was first to testify.[11] He told the court that in
the afternoon of October 17, 1992, at around 2:30 p.m., he went
with Dante Pajaron to deliver gravel and sand to a certain Evelyn
in Barangay Batuhan, Pola, Oriental Mindoro. While their truck
was parked and he was on top of the sand loaded on it, he heard
a commotion. Looking to his right, he saw two persons, one had
a gun (whom he identified as accused-appellant), while the other
(whom he identified as Mercene, Jr.) had none. Advincula said
that while Mercene, Jr. was lighting a cigarette, accusedappellant kicked him, causing him to fall to the ground with both
hands touching the ground. As Mercene, Jr. tried to stand up,
accused-appellant boxed him, causing him to fall again to the
ground. Again Mercene, Jr. tried to get up, but accused-appellant
hit him on the shoulder, causing Mercene, Jr. to fall with his
hands and knees to the ground. Accused-appellant then aimed
his gun (about two inches away) towards the back of Mercene,
Jr.s left ear and fired. Mercene, Jr. fell face downwards. In fright,
according to Advincula, Dante Pajaron backed out the truck
around 12 meters and then they unloaded their cargo of gravel
and sand as fast as they could.
Testifying in his turn, Dante Pajaron corroborated the
testimony of his helper. He said[12] that while they were delivering
gravel and sand, he saw two persons at his right side, around 7-8
meters away, having an argument. One of them had a gun. He
recognized the person with a gun as Mulong (accused-appellants
nickname). Fearing for his safety, Pajaron said he got off the
truck and sought cover. Less than a minute later, he heard a
gunshot. He peeped through his hiding place and saw the person
with whom Mulong was having an argument drop to the
ground. Mulong then went inside his house still holding the

gun. Pajaron said he and his helpers then unloaded the sand
from their truck and then left as quickly as they could.
SPO1 Froilan Rivera of the PNP at Pola was one of the
investigators. He and SPO2 Ferdinand Abog and a photographer
went to the scene of the crime. He said[13] that they found the
deceased sprawled on the ground (nakabulagta). They took
pictures of Mercene, Jr. (Exhs. H-H-4).[14] Together with Abog,
Rivera made a sketch of the scene of the crime (Exh. J). [15]Rivera
testified that they found no gun or deadly weapon on Mercene,
Jr.s person.
Oscar Coballes is a crime investigator of the Criminal
Investigation Service Command (CIS) stationed at Calapan,
Oriental Mindoro. He testified[16] that upon the request of
Mercene, Jr.s widow, he conducted an investigation of the
killing. The gun (Exh. O) which accused-appellant had
surrendered was given to him. It had four bullets and one empty
shell (Exh. P).Coballes prepared a report (Exh. Q)[17] which
became the basis of the criminal complaint filed in the Office of
the Provincial Prosecutor of Calapan, Oriental Mindoro against
accused-appellant (Exh. R).[18]
The widow of the deceased, Alita Patulot Mercene,
testified[19] that they have two children, aged 9 and 5; that her
husband was a B.S.E. and B.S.E.Ed graduate, a former teacher,
and, at the time of his death, a municipal councilor
receiving P6,000.00/month; that she spent P40,000.00 for the
six-day wake for her husband and P50,000.00 for his coffin and
funeral services; that for this case she hired the services of the
private prosecutor who charged P20,000.00 for his acceptance
fee and P2,000.00 for his appearance fee; that her children faced
an uncertain future because of the loss of their father; and that
after her husbands death, she had trouble sleeping because it is
really difficult to be alone.
Accused-appellant testified in his behalf.[20] He said that at 2
p.m. on October 17, 1992, he met Mercene, Jr., who was a little
bit drunk, as he was about to leave for work. He claimed that
Mercene, Jr. threatened to kill him, saying Putang Ina mo
Patrolman, papatayin kita ngayon (You s.o.b. Patrolman, Ill kill
you now). Accused-appellant said he raised his hands and
begged the deceased for mercy, saying Huwag po konsehal,
maawa ka sa aking mga anak, at maliliit pa ang mga anak
ko (Dont kill me Councilor. Have pity on my children, they are still
so young). He said he then turned to open the door to his house
with his left hand, his right hand still raised. However, the
deceased threw a box of matches at him and tried to grab his
service pistol which was tucked at his waist. Accused-appellant
said he held the cylinder of his revolver with his right hand. As
accused-appellant and the deceased grappled for possession of
the gun, they fell to the ground. According to accused-appellant,
the deceased tried to put his finger on the trigger but he was not
able to do so because accused-appellant had a finger inside the
trigger guard. He claimed that as they were lying, his right hand
was holding the barrel of the gun while his left hand was holding
the right hand of the deceased. Mercene Jr.s left hand was
allegedly holding accused-appellants
right
waist. Accusedappellant said he tried to point the barrel of the gun upwards,
even as Mercene, Jr. tried to point it towards accusedappellant. At that point, the gun went off, hitting Mercene, Jr. on
the left nape below the ear. According to accused-appellant, at

that time, the deceaseds finger was on the trigger. Accusedappellant said he then picked up the gun and tucked it at his
waist, and stepped out towards the road.

(SIGNED)

Accused-appellant saw SPO4 Meynard Ramos and asked

him to help him bring Mercene, Jr. to the hospital. But Ramos told
him to report instead to the police station and he would take care
of Mercene, Jr.

He claimed that it was actually Mercene, Jr. who pulled the

trigger thus accidentally shooting himself.

Accused-appellant reported the matter to his station

commander, SPO3 Rafael Tagulalap, saying that Mercene, Jr.
had accidentally shot himself, and surrendered the fatal
gun.Accused-appellant claimed that although he was placed
inside the jail, it was more to protect him from relatives of the
deceased rather than to prevent him from escaping because they
believed he committed a crime.
Accused-appellant denied blocking Mercene, Jr.s passage
through the river on August 25, 1992. He claimed he placed the
nets to catch fish. Accused-appellant complained that the spot
report of the incident transmitted by his station to the PNP
Provincial Commander in Calapan was different from the version
he gave to his station commander because in the spot report it
was stated that he drew his revolver and shot Mercene, Jr. as the
latter was about to attack him (accused-appellant). The spot
report (Exh. U) reads:
FROM: OIC POLA PNP
TO: PD MDO OR PNP
TEXT:
PPSE 1017-13 PD SPOT REPT RE SHOOTING INCIDENT PD
THAT ON OR ABT 171430h OCT 1992 CMM A SHOOTING
INCIDENT TRANSPIRED IN BGY BATUHAN CMM THIS MPLTY
RESULTING TO THE DEATH OF ONE ANTONIO MERCENE
CMM AN ELECTED MUNICIPAL COUNCILOR OF THIS TOWN
CMM MARRIED CMM AND RES OF BGY BAYANAN POLA THIS
PROVINCE PD INITIAL INVESTIGATION CONDUCTED BY THE
ELEMENTS OF THIS STN REVEALED THAT ON SAID TIME
AND DATE VICTIM WHO APPARENTLY DRUNK WITH
INTOXICATION LIQUOR ALIGHTED FROM A PEDICAB JUST
IN FRONT OF THE HOUSE OF ONE SPO1 ROMULO L.
GUTIERREZ JR PNP IN BGY BATUHAN CMM AND WITHOUT
THE KNOWLEDGE OF SID POLICEMAN ENTERED THE
PREMISES OF SAID HOUSE PD AT THIS JUNCTURE CMM
SUBJECT POLICEMAN WHO IS SITTING INSIDE THEIR
SALA/GUESTROOM NOTICE THE PRESENCE OF THE
VICTIM DOES HE CONFRONTED THE SAID VICTIM AND A
HEATED ARGUMENT AROUSE BETWEEN THE TWO PD AT
THIS JUNCTURE VICTIM ACTED AS IF HE WILL ASSAULT
THE SUSPECT DOES SAID POLICEMAN DRAW HIS SERVICE
REVOLVER CMM A .38 CALIBER WITH SERIAL NUMBER
924532 AND MADE SB CMM FROM HIS WAISTLINE AND
FIRED IT AT CLOSED RANGE TO THE VICTIM CMM HITTING
SAID VICTIM ON HIS HEAD NEAR THE LEFT EAR
RESULTING TO THE ENSTANEOUS [sic] DEATH OF SAID
VICTIM . . . .

OFFL: TAGULALAP, R E JR, SPO111, PNP, OIC[21]

Bonifacio Nagulom, a copramaker, corroborated accusedappellants account. He testified[22] that he witnessed the incident
as he was on his way to the public market.
The testimony of Menardo Ramos was dispensed with as
the prosecution agreed that if he testified this witness would say
he was the one who took Mercene, Jr. to the hospital.[23]
Romelyn Merjan also testified.[24] He said that while on his
way to the bus terminal, he noticed somebody cursing Putang
Ina mo, Mulong mag-away tayo (You s.o.b. Mulong, lets fight)
even as accused-appellant, with his hands raised,
pleaded, Huwag ho konsehal maawa ka sa mga anak ko,
kaliliitan pa (Dont councilor, have pity on my young
children). Merjan said he noticed a gun tucked at accusedappellants waist as he raised his hands. As accused-appellant
turned away to go inside his house, Mercene, Jr. threw
something at him and then tried to seize accused-appellants
gun. Both of them fell as they grappled for possession of the
gun. A moment later, Merjan heard a gunshot. He noticed
Mercene, Jr. trying to stand up only to fall down again.
Enrique Dajoyag, a member of the Philippine National
Police of Pola, testified[25] that he was the one who took down the
report of the incident in the police blotter because the
investigator, Alvin de Ramos, who interviewed accused-appellant,
had poor eyesight. Pages of the blotter containing the report
were later found missing and the Station Commander, Romeo
Delmo, in a memorandum (Exh. T), [26] stated his belief that the
loss of the missing pages was not accidental.
However, testifying in his turn,[27] Alvin de Ramos could not
recall whether he had asked Dajoyag to write the investigation
report in the police blotter for him. Nor could he explain the fact
that the pages of the police blotter containing his alleged report
were missing. He remembered that what accused-appellant said
was that Mercene, Jr. went to his house and that they had an
argument and grappled for the possession of accused-appellants
firearm.
On rebuttal, the prosecution presented Mercene, Jr.s widow
Alita and SPO3 Rafael Tagulalap. Alita testified[28] that the
Municipality of Pola is a sixth class municipality and that the
salary of councilors is P7,095.00 a month. Tagulalap for his part
identified the spot report (Exh. U) referred to in accusedappellants testimony as the one sent by him to the PNP
Provincial Director and said that it was in fact prepared by SPO2
Alvin de Ramos.[29]
The trial court found accused-appellant guilty. It noted that
the witnesses for the prosecution were frank and straightforward
and credible. Hence, this appeal.

Accused-appellant contends that the trial court erred

I. In not allowing the accused in presenting his
defense in an inverted order of trial upon his
counsels motion as he invoked self-defense;
II. In failing to appreciate the fact that the elements
required to invoke self-defense are present in this
instant case;
III. In being biased in the appreciation of the
testimonies of the two eyewitnesses who could
have not been present at the scene of the incident.

Order of Trial

Rule 119, 3 of the Rules of Criminal Procedure provides:

The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge
and, in the proper case, the civil case liability.

on him. Rule 119, 3(e), however, does not require such a change
in the order of trial but only allows it in the discretion of the
court. This can be seen in the use of the permissive may.
At any rate, in the case at bar, although accused-appellant
pleaded self-defense, he did not really admit the killing because
his claim was that it was the deceased who accidentally shot
himself. There is, therefore, no basis for reversing the order of
trial. The burden was on the prosecution to prove that it was
accused-appellant who really fired his gun at the deceased.

Credibility of Prosecution Witnesses

Accused-appellant assails the testimony of the principal

prosecution eyewitness, Jose Advincula, claiming it to be riddled
with inconsistencies showing that he did not actually witness the
incident:
1. According to accused-appellant, Advincula testified
that he did not know the names of the two persons he saw,
yet he identified accused-appellant Gutierrez, Jr. by name
as the man he saw holding a gun. Advinculas testimony is
as follows:

(b) The accused may present evidence to prove his defense, and
damages, if any, arising from the issuance of any provisional
remedy in the case.

Q. Before this incident which you had witnessed, could you

be able to tell this Honorable Court if you had seen
Romulo Gutierrez before?

(c) The parties may then respectively present rebutting evidence

only, unless the court, in furtherance of justice, permits them to
present additional evidence bearing upon the main issue.

A. Yes, sir.

(d) Upon admission of the evidence, the case shall be deemed

submitted for decision unless the court directs the parties to
argue orally or to submit memoranda.
(e) However, when the accused admits the act or omission
charged in the complaint or information but interposes a lawful
defense, the order of trial may be modified accordingly.
Accused-appellant invokes this provision and contends that
the trial court should have modified the order of the trial.
The contention has no merit. To begin with, the Court
understands accused-appellants contention to be that he should
have been heard first in his defense before the prosecution
presented its evidence because of his plea of self-defense.
The present rule is a response to the early case of
Alejandro v. Pepito[30] in which we ruled that even in situations
where the plea of self-defense is raised, the constitutional
provision that no person shall be held to answer for a criminal
offense without due process still requires that in the presentation
of evidence the prosecution must go forward and present all its
proof in the first instance before the accused is required to
substantiate his defense because the latter is presumed innocent
until the contrary is proved. The change found in the present rule
is based on the theory that by pleading self-defense, the accused
admits the killing and, therefore, the burden of justification is now

Q. Why have you seen him?

A. I saw him that he is a policeman of Pola. I do not only
know his name.
Q. What about this Antonio Mercene, have you seen this man
before the incident in question?
A. Yes, sir. I know him long before. I have seen his face but I
do not know his name.[31]
There is no inconsistency between Advinculas testimony
that he did not know the names of the persons he saw in the
afternoon of October 17, 1992 and the fact that he later identified
accused-appellant as the assailant. Obviously, Advincula only
came to know accused-appellants name after witnessing the
incident. Even if at the time of the killing he did not know
accused-appellants name, he was familiar with the latter, having
seen accused-appellant before and in fact knew that accusedappellant was a policeman in Pola. More importantly, in the
courtroom, Advincula positively identified accused-appellant as
the person whom he saw shoot Mercene, Jr.[32]
2. Accused-appellant claims that Advincula was
inconsistent because at first he testified that he could not
remember whether it was Mercene, Jr.s left or right
shoulder which accused-appellant hit with his gun but later
this witness said it was the left shoulder which was hit.

This contention is also without merit. Advincula never said

accused-appellant hit the deceased on the left shoulder. What he
said was that the accused-appellant aimed his gun at the left
shoulder of deceased. Here is what Advincula said:
A. When Antonio Mercene was about to stand up, he was hit
by the gun Romulo was holding, on the shoulder, I do
not know only whether it was left or right shoulder.
....
Q. What happened next?
A. Romulo Gutierrez shot Antonio Mercene, sir.
Q. How far was Romulo Gutierrez from Antonio Mercene
when he fired his gun?
A. Tutok po ang baril.
COURT:
Q. Where was it nakatutok?

Q- How far to the side of the road?

A- At the very side of the road, sir. [34]
What Advincula actually testified to was that he saw
accused-appellant talking with Mercene, Jr. on the road but that
the latter was shot at the very side of the road. Indeed, this
testimony is consistent with the sketch (Exh. J)[35] of the crime
scene, which shows the deceaseds body on the shoulder of the
road and his foot about 15 inches from the road indicating that if
accused-appellant and the deceased did not have their initial
confrontation on the road, it was at least quite near the same.
4. According
to
accused-appellant, Advinculas
testimony that accused-appellant was situated obliquely on
the left side of Mercene, Jr.s head when he shot the latter
was belied by the testimony of the medico-legal witness Dr.
Fetizanan. This is not so. Dr. Alita Fetizanans testimony in
fact corroborates Advinculas testimony. She said:
It could be possible that the victim at the time he was shot was
either stooping or sitting down and the assailant is positioned in
such a way that he is higher than the victim. It is also possible
that the assailant is located on the left posterior lateral position in
relation to the victim, sir.[36]

A. On his left shoulder, your honor.[33]

3. Another alleged inconsistency in Advinculas
testimony is that he said he saw the deceased and
accused-appellant talking on the road outside the house
but later he said that the two were at the side of the
road. Advinculas testimony is as follows, and it belies
accused-appellants claim that it is inconsistent:
ATTY. JUNIO:
Q- You said that when you were about 12 meters away from
the place where the incident happened, did you notice
that the two persons were just very close the door of the
house?
A- They were talking on the road outside the house, sir.

(5) Finally, accused-appellant contends that Advincula

lied when he testified that the distance between the
deceaseds body and the wall of accused-appellants house
was 5 meters since, according to SPO1 Froilan Rivera, the
distance of the deceaseds body from the wall of accusedappellants house was only 5 feet or 1 1/2 meters.
Advinculas estimate regarding the distance between the
place where the deceased was shot and the wall of appellants
house is from 4 to 5 meters. While this is belied by the sketch
(Exh. J)[37] of SPO1 Rivera and the latters testimony[38] to the
effect that the distance between the head of the deceased and
the main door of appellants house was 59 inches, the erroneous
estimate of Advincula may have been caused by fright. At all
events, this is an error concerning a minor point. Far from
detracting from the merit of his testimony, it in fact even bolsters
its credibility for it indicates that his testimony was unrehearsed.
[39]

Q- So, when Councilor Mercene was allegedly shot, he was

shot on the road?
A- He was slumped on the road, sir.
ATTY. JUNIO:
The witness is not answering directly the question.
Q- Prior to my last question, you said that the two, the
deceased councilor Mercene and accused Romulo
Gutierrez were on the road. So when councilor Mercene
was shot, he was on the road?
A- At the side of the road, sir.

Turning to Dante Pajarons testimony, accused-appellant

contends that it is of doubtful veracity because Pajaron testified
that he had two companions at the time of the shooting, Jose
Advincula and Ramil de los Reyes, but in his earlier affidavit
(Exh. 1)[40] he stated that a certain Teddy Boy and John-John
were also with him. We have observed many times before that
affidavits taken ex parte are often incomplete and inaccurate,
sometimes because of suggestion and at other times because of
want of suggestion and inquiries. For this reason, they are
generally considered inferior to testimony given in open court.
[41]
Moreover, Dante Pajaron clarified during his crossexamination that Teddy Boy and John-John were with them when
they were gathering sand and that they were left behind in the
quarry to pile the same while he, Jose Advincula, and Ramil de
los Reyes proceeded to Pola.[42]

We find the findings of fact of the trial court to be in

accordance with the evidence. With two credible eyewitnesses
and the documentary evidence corroborating their testimonies,
the prosecution has clearly discharged its burden of proving
accused-appellants guilt beyond reasonable doubt.[43] It should be
added that the trial court had the opportunity to observe firsthand the demeanor and deportment of all the witnesses and its
findings that the witnesses for the prosecution are to be believed
over those of the defense are entitled to great weight.[44]

advantage was taken by the accused of his public position, and

that the crime was committed in contempt of or with insult to
public authority).
For evident premeditation to exist, the following requisites
must be established: (a) the time when the accused determined
to commit the crime; (b) an act manifestly indicating that the
accused had clung to his determination; and (c) sufficient lapse
of time between such determination and execution to allow him to
reflect upon the consequences of his act.[48]

Improbability of Defense Version

Indeed, it is undisputed that accused-appellant was armed

while the deceased was not. It would be foolhardy for the
deceased to challenge accused-appellant while in such a position
of obvious weakness. Accused-appellant claimed that Mercene,
Jr. was a little bit drunk. This circumstance, assuming it to be
true, is insufficient to make him throw caution to the winds and
challenge an armed adversary. Equally improbable is accusedappellants claim that the deceased threatened to kill him and he
had to beg for the latters mercy. Accused-appellant was armed
while Mercene, Jr. was not. It is hard to believe that he could be
intimidated by the deceased.
This is not the only improbability in accused-appellants
testimony. His narration of the alleged struggle for the possession
of his gun is too detailed for a struggle that accused-appellant
himself admits lasted for only a few seconds.[45] One wonders
how he could remember what he was doing with his left and right
hands and what Mercene was doing with his own hands.This
total recall is highly improbable under the circumstances.[46]
There is also the matter of the spot report transmitted by the
Pola Station to the PNP headquarters in Calapan which accusedappellant himself admits is at variance with his self-defense
theory as the spot report states that accused-appellant shot
Mercene, Jr. because the latter acted as if he will assault
him. Accused-appellant says he cannot understand how the spot
report could differ from the story he gave to his station
commander which is also the same as his testimony in the trial
court. He claims that he does not know who prepared the spot
report.[47] But the source of the information used in the spot report
could have only been accused-appellant himself considering that
he was the one who in fact reported the shooting to his station
and his admission that he was still in Pola when the report was
transmitted to Calapan.
Finally, it is noteworthy that accused-appellant suffered no
injury, not even a scratch, as a result of the incident, while the
autopsy report reveals that the deceased suffered seven
injuries. Yet he claims that he and the deceased fought for
possession of the gun.

Defendants Liability

We now come to the circumstances attending the

commission of the crime. The information alleged two qualifying
circumstances (evident premeditation and treachery) and three
aggravating circumstances (abuse of superior strength, that

The trial court found that there was evident premeditation

based on the fact that, before the shooting, there was an incident
between the parties at the Casiligan river, for which several
complaints were filed by the deceased against accusedappellant. Assuming that these caused ill-feeling on the part of
the latter, accused-appellant did not know that he would see the
deceased on October 17, 1992 and, therefore, could not have
planned to kill him then.
The qualifying circumstance of treachery, however, is
present in the case as the two conditions for the same are
present, i.e., (1) that at the time of the attack, the victim was not
in a position to defend himself and (2) that the offender
consciously adopted the particular means, method, or form of
attack employed by him.[49] According to the eyewitness account
of Jose Advincula, accused-appellant took Mercene, Jr. by
surprise because the latter was lighting a cigarette when, without
warning, accused-appellant kicked and boxed him, causing
Mercene, Jr. to fall. As Mercene, Jr. was trying to get up from the
ground, accused-appellant took aim at him and shot him near his
left ear.
Treachery absorbs the aggravating circumstance of abuse
of superior strength so the same need not be appreciated
separately.[50] Neither can the aggravating circumstance that the
crime was committed with insult to public authority be
appreciated as the crime was committed against the public
authority himself.[51] The aggravating circumstance of taking
advantage of ones public position, however, is present since the
gun used by accused-appellant was the service revolver issued
to him.[52]
The trial court likewise erred in appreciating the mitigating
circumstance of voluntary surrender in this case as it appears
that accused-appellant did not really go to his station to surrender
and thus save the authorities the time and trouble of arresting
him but rather to merely report the incident.[53]
The crime, therefore, is murder with the aggravating
circumstance of taking advantage of accused-appellants
office. At the time when the crime was committed in 1992, the
penalty for murder was reclusion temporal maximum to
death. The presence of an aggravating circumstance would call
for the imposition of the maximum penalty, i.e., death. However,
in view of Art. III, 19(1) of the Constitution, the imposition of the
death penalty then was prohibited. It was only on December 31,
1993 when, by virtue of R.A. No. 7659, the penalty of death was
imposed for certain heinous offenses in view of the compelling
necessity for imposing the supreme penalty. Accordingly, the

penalty next lower to death, i.e., reclusion perpetua, should be

imposed in this case.[54]

net earning capacity (x) = life expectancy x annual living

income expenses

Award of Damages to the Heirs

(50% of gross annual income)
Anent the award of actual damages, the Court must
disallow the P90,000.00 as reimbursement for the expenses
incurred for the wake, burial, and funeral services for Mercene,
Jr.. Aside from the bare assertion of the widow, Alita Mercene, no
evidence to prove the same was presented. The Court can only
give credit for expenses supported by receipts. Here, since the
actual amount of the funeral expenses was not substantiated, no
award for the same can be granted.[55]
The award of P150,000.00 for support for the educational
expenses of the two minor children of the deceased must also be
disallowed, the recipients being Mercene, Jr.s children who are
his intestate heirs under Art. 980 of the Civil Code. Art. 2206(2) of
the Civil Code provides that support for education may only be
demanded from a person convicted of a crime if he is obliged to
give support according to the provisions of Art. 291, the recipient
[not being] an heir called to the decedents inheritance by the law
of testate or intestate succession. (Emphasis added)
Although the prosecution did not present evidence to
support the widows claim for loss of earning capacity, such failure
does not necessarily prevent recovery of the damages if the
testimony of the surviving spouse is sufficient to establish a basis
from which the court can make a fair and reasonable estimate of
the damages for the loss of earning capacity of the victim. [56] In
this case, Alita Mercene testified [57] that her husband was 34
years old at the time of his death and that he had B.S.E. and
B.S.E.Ed degrees. Prior to his election as municipal councilor of
Pola, he was a substitute teacher at Pahilahan and later a
permanent teacher at Matulatula for two years. His monthly
salary as councilor was P7,095.00.[58] While in her direct
examination Alita Mercene testified that her husbands salary
was P6,000.00, we think it proper to use the higher figure as it
appears that she was recalled to the witness stand to correct her
previous estimate and accused-appellant did not question the
higher figure.
The deceaseds loss of earning capacity would then be as
follows:[59]

x = 2(80-34)
______________ x [85,140 - 42,570.00]
3
= 30.67 x 42,570.00
= P1,305,621.90
An award of P20,000.00 as exemplary damages is also
justified under Art. 2230 of the Civil Code which provides:
ART. 2230. In criminal offenses, exemplary damages as a part of
the civil liability may be imposed when the crime was committed
with one or more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to the offended
party.
The award of moral damages and attorneys fees [60] is also
justified under Arts. 2219(1) and 2206(3), and 2208(1) and (11) of
the
Civil
Code,
respectively. However,
the
amount
of P100,000.00 for moral damages, which the trial court ordered
accused-appellant to pay, is excessive, in light of the purpose for
making such award, which is to compensate the heirs for injuries
to their feelings and not to enrich them. An award of P50,000.00
would be adequate for the purpose.[61]
WHEREFORE, the decision of the Regional Trial Court of
Pinamalayan, Oriental Mindoro (Branch 42) is SET ASIDE and
another one is RENDERED finding accused-appellant guilty of
murder with the aggravating circumstance of abuse of public
position and sentencing him to suffer the penalty of reclusion
perpetua and to pay the heirs of Antonio Mercene, Jr., the
amounts
of P50,000.00
as
indemnity
for
his
death; P1,305,621.90 for loss of earnings; P20,000.00 as
exemplary
damages; P50,000.00
as
moral
damages;
and P20,000.00 as attorneys fees; and the costs.
SO ORDERED.

gross less