Art 14 Cases Aggravating

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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-38297 October 23, 1982
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARIO CAPALAC, defendant-appellant.
FERNANDO, C.J.:
It was not unexpected, considering the close family ties so traditional among Filipinos. that the
stabbing, apparently without provocation, of one Moises Capalac by Jimmy Magaso, would be
attended with serious, if not tragic, consequences. It happened on September 20, 1970 at around
2:00 o'clock in the afternoon, the scene of the gory incident being a duly licensed cockpit in the
City of Iligan. The aggressor, attempting to escape, was confronted by two brothers of Moises,
Jesus Capalac, originally included in the information but now deceased, and appellant Mario
Capalac. The attempt of Magaso to board a jeep was unsuccessful, he having alighted after two
shots were fired in succession. Knowing that he was completely at the mercy of the two brothers,
he raised his hands as a sign of surrender, but they were not to be appeased. He was pistol-
whipped by appellant Mario Capalac, being dealt several blows on the head and the face. After he
had fallen to the ground, Jesus Capalac stabbed the deceased on the chest three or tour times. He
was brought to the hospital where he died, the cause, according to the coroner's report, being
"hemorrhagic shock due to a wound of the heart."
The above facts are not open to dispute, the decision of the lower court and the briefs for both
appellant and appellee being substantially in agreement. After trial duly held, Mario Capalac was
convicted of murder. The lower court found that the crime was committed with evident
premeditation and treachery. The lower court also held that appellant took advantage of his
position as a police officer and employed means or brought about circumstances which added
ignominy to the natural effects of his act. It sentenced him to suffer the death penalty. Hence, this
case is before this Tribunal for automatic review. 1
The brief for the appellant prays for the reversal of the judgment and assigns four errors as having
been committed by the lower court. The first error speaks of the absence of conspiracy. The
second and the third deny the existence of the qualifying as well as the aggravating circumstances,
Lastly, the brief imputes as error of the lower court what it referred to as "discarding the ante
mortem statement of the victim." As will be shown, there is no basis for reversal. The judgment,
however, calls for modification. Murder was committed, the qualifying circumstance of alevosia
being quite evident. The aggravating circumstances, however, were not proved. Moreover, the
lower court did not take into consideration the existence of the mitigating circumstance of the
immediate vindication of a grave offense. Hence, the imposition of the death penalty was not
warranted.
1. The circumstances indicative of the manner by which the two brothers, as well as their two
companions, who apparently were not apprehended as they were not included in the information,
attacked the hapless victim, would suffice to show conspiracy. They apparently had one purpose in
mind, to avenge the stabbing of Moises Capalac. Such a reaction, as noted at the outset, is quite
understandable. It was not to be expected that they would even bother to inquire why their brother
was stabbed. It was enough that it was done. They were impelled by a common purpose. They
acted in concert. There is sufficient basis for the finding of conspiracy then. As far back as United
States v. Magcamot, 2 a 1909 decision, Justice Mapa stressed as the essential element for
conspiracy to exist the "concurrence of wills" and "unity of action and purpose." 3 A recent
decision is partial to the phrase, "tacit and spontaneous coordination," in the assault. 4 A careful
analysis of the evidence by the lower court can yield no other conclusion but that conspiracy was
duly proved.
2. crime was one of murder, the qualifying circumstance of treachery being present. The
specific language of the Revised 'Penal Code calls for application: "There is treachery when the
offender commits any of the crimes against the person, employing means, methods, or forms in
the execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make. 5 Magaso's situation was
hopeless. Any defense he could have put up would be futile and unavailing. His hands were raised
in surrender. That notwithstanding, he was pistol-whipped. When lying prostrate on the ground, he
was stabbed. It must be remembered that, according to the testimonial evidence, there were two
other persons assisting the brothers Capalac. If they were not included in the information, the
explanation would appear to be that they managed to elude capture. There was no risk, therefore,
to the aggressors, no hope for the victim. 6 The trial court committed no error then in appreciating
the circumstance of treachery as being present.
3. The lower court erred, however, in finding the aggravating circumstances of evident
premeditation, of means being employed or circumstances brought about to add ignominy to the
natural effects of the act, and of the crime being committed with the offender taking advantage of
his official position as having attended the commission of the crime. As early as 1903, Justice
Mapa, in United States v. Alvares, 7 made clear that an aggravating circumstance must be "as fully
proven as the crime itself. 8 He added: "Without clear and evident proof of their presence, the
penalty fixed by the law for the punishment of the crime cannot be increased. 9 Moreover, insofar
as evident premeditation is concerned, there is this relevant excerpt from the same opinion: "The
record contains no evidence showing that the defendant had, prior to the moment of its execution,
resolved to commit the crime, nor is there proof that this resolution was the result of meditation,
calculation and persistence. 10 In People v. Mendova, 11 it was emphasized that it should not be
"premeditation" merely; it is "evident" premeditation. 12 A recent decision, People v. Anin, 13
ruled that the perpetration of a criminal act "evidently made in the heat of anger" did not call for a
finding that there was evident premeditation. 14 What is required is that the offense was "the result
of cool and serene reflection." 15 What was done by the brothers of Capala, cannot be categorized
as falling within the norm of means being employed or circumstances being brought about to add
ignominy to the natural effects of the act. It is well to stress that they were prompted by their
desire to avenge their brother, They went after Magaso, the victim. They assaulted him, relying on
the weapons they carried with them. Jesus stabbed him and appellant Mario pistol-whipped him.
They did what they felt they had to do to redress a grievance. It cannot be said, therefore, that they
deliberately employed means to add ignominy to the natural effects of the act. It is quite apparent
that all they were interested in was to assure that there be retribution for what was done to their
brother. The mere fact that appellant Mario Capalac is a member of the police force certainly did
not of itself justify that the aggravating circumstance of advantage being taken by the offender of
his public position be considered as present. He acted like a brother, instinctively reacting to what
was undoubtedly a vicious assault on his kin that could cause the death of a loved one. It would be
an affront to reason to state that at a time like that and reacting as he did, he purposely relied on
his being a policeman to commit the act. He pistol-whipped the deceased because he had his pistol
with him. It came in handy and he acted accordingly. 16 That he was a policeman is of no
relevance in assessing his criminal responsibility.
4. There is another aspect of the decision that calls for correction. The mitigating circumstance
of immediate vindication of a grave offense was not considered. There is no ambiguity in the
language of the Revised Penal Code: "That the act was committed in the immediate vindication of
a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants,
legitimate, natural, or adopted brothers or sisters, or relatives by affinity within the same degree.
17 What was done was an immediate vindication of the stabbing perpetrated by Magaso on
appellant's brother Moises. For relatively less serious crimes than this, this Court has taken into
consideration this mitigating circumstance. 18 Certainly it seems probable that the reason why, the
lower court failed to do so was the fact that appellant was a member of the police force. That is not
conclusive. What is decisive is the fact that the brothers Capalac, responsive to what is a
traditional norm of conduct, reacted in a manner which for them was necessary under the
circumstances. That was a fulfillment of what family honor and affection require. The aggressor
who did them wrong should not go unpunished. This is not to justify what was done. It offers
though an explanation. At the same time, the rule of law, which frowns on an individual taking
matters into his own hands, requires that every circumstance in favor of an accused should not be
ignored. That is to render justice according to law. This mitigating circumstance calls for
application.
5. There is no point in discussing the fourth assigned error, namely, that the ante mortem
statement of the victim should have been given weight by the Court. Such exhibit, 19 even if
considered a dying declaration, would not call for a reversal. It consisted of seven questions and
answers. The answers to the second and the third questions referred to what happened to Magaso
and who was responsible. His answer was that he was stabbed, and that it was done by Jesus
Capalac. The other questions dealt with when and where it happened as well as whether or not he
was in possession of his senses, and a rather unnecessary question as to whether he was
aggrieved.<re||an1w> This Court, as was the lower court, is aware that the stabbing was by
Jesus Capalac, not by appellant. It does not thereby mean that no criminal liability was incurred by
him. In the light of the foregoing, and following the case of People v. Rosel 20 where the murder
was qualified by the circumstance of treachery and there was likewise considered the mitigating
circumstance of immediate vindication of a grave offense, the penalty imposed on the accused
should be "ten years and one day of prision mayor to seventeen years, four months and one day of
reclusion temporal." 21
WHEREFORE, the accused is found guilty of murder, but the decision of the lower court is
hereby modified. The accused is sentenced to ten years and one day of prision mayor minimum to
seventeen years, four months and one day of reclusion temporal maximum. In all other respects,
the lower court decision stands affirmed.
Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin and Relova, JJ., concur.
Aquino and Gutierrez, JJ., took no part.

Makasiar, J., I reserve my vote.
Vasquez, J., I reserve my vote.
De Castro, J., concur in the result.
Teehankee, J., is on leave.
Footnotes
1 He remained the sole accused, there being an order of the lower court of February 12, 1972
dismissing the charge against his brother, Jesus, who, had died in the meanwhile.
2 13 Phil. 386.
3 Ibid.
4 People v. Aleta, L-40694, August 31, 1976, 72 SCRA 542, per Aquino, J
5 Article 14, par. 16 of the Revised Penal Code.
6 Cf. People v. Ong, L-34497, Jan. 30, 1975, 62 SCRA 174; People v. Mabuyo, L-29129, May
8, 1975, 63 SCRA 532; People v. Bautista, L-38624, July 25, 1975, 65 SCRA 460 (where
deceased had no chance to defend himself); People v. Tizon, L-29724, Aug. 29, 1975, 66 SCRA
372; People v. Payao, L-29364, Nov. 21, 1975, 68 SCRA 70; People v. Pajenado, L-26548, Jan.
30, 1976, E9 SCRA 172; People v. Mojica, L-30742, April 30, 1976, 70 SCRA 502; People v.
Palencia, L-38957, April 30, 1976, 71 SCRA 679; People v. Benito, L-32042, Dec. 17, 1976, 74
SCRA 271; People v. Pascual, L-29893, Feb. 23, 1978, 81 SCRA 548; People v. Plateros, L-
37162, May 30, 1078, 83 SCRA 401; People v. Alegria, L-40392, Aug. 18, 1978, 84 SCRA 614;
People v. Cuadra, L-27973, Oct. 23, 1978, 85 SCRA 576; People v. Barbosa, L-39779, Nov. 7,
1978, 86 SCRA 217; People v. Damaso, L-30116, Nov. 20, 1978, 86 SCRA 370.
7 3 Phil. 24.
8 Ibid, 32,
9 Ibid.
10 Ibid, 31-32.
11 100 Phil. 811 (1957).
12 Ibid, 818.
13 L-39046, June 30,1975, 64 SCRA 729.
14 Ibid, 734.
15 Ibid.
16 Cf. United States v. Rodriguez, 19 Phil 150 (1911); People v. Yturriaga, 86 Phil. 534 (1950);
People v. Ordiales, L-30956, November 23, 1971, 42 SCRA 239.
17 Article 13, par. 5 of the Revised Penal Code.
18 Cf. United States v. Ampar, 37 Phil, 201 (1917); People v. Diokno, 63 Phil. 601 (1936);
People v. Rosel, 66 Phil. 323 (1938); People v. Domingo, 118 Phil. 1384 (1962) only alternatively.
19 Exhibit 1.
20 66 Phil. 323 (1938).
21 Ibid, 326.
The Lawphil Project - Arellano Law Foundation
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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 73489 April 25, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CIC LORETO GAPASIN, PC NICANOR SALUDARES, LORENZO SORIANO, alias "Olit",
AMOR SALUDARES, FRANK SALUDARES, BEL SALUDARES, and NICK SALUDARES,
accused, CIC LORETO GAPASIN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Silvestre Br. Bello for accused-appellant.
QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court, Branch XVI, Isabela in Criminal
Case No. IV-781, finding appellant guilty beyond reasonable doubt of murder qualified by
treachery, with the attendance of the mitigating circumstance of voluntary surrender, and the
aggravating circumstances of taking advantage of public position and evident premeditation. The
trial court sentenced him to suffer the penalty of reclusion perpetua and to pay to the heirs of the
late Jerry Calpito, Sr., the sum of P88,596.00 as actual or compensatory damages; P30,000.00 as
death indemnity; P20,000.00 as moral damages; P30,000.00 as exemplary damages; and the costs.
I
The information in Criminal Case No. IV-781 reads as follows:
That on or about the 6th day of October, 1979, at Barangay San Jose, municipality of Roxas,
province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the accused
CIC LORETO GAPASIN, PC NICANOR SALUDARES, LORENZO SORIANO alias Olit,
AMOR SALUDARES, FRANK SALUDARES, BEL SALUDARES, and NICK SALUDARES,
conspiring and confederating together and all helping one another, with evident premeditation and
treachery, did then and there wilfully, unlawfully, criminally and feloniously, with intent to kill,
attack and shoot Jerry Calpito, with an Armalite rifle SN No. 3267485
Cal. 5.56 duly issued to the accused PC soldier under Memorandum Receipt dated September 17,
1979 by the 118th PC Company, inflicting multiple gunshot wounds on the body of the latter, step
and kick (sic) the victim several times, causing his instantaneous death due to hemorrhage
secondary to gunshot wounds, to the damage and prejudice of the heirs of the deceased Jerry
Calpito in the amount of P12,000.00, Philippine Currency.
That the crime was committed with the aggravating circumstances of (1) ignominy, the accused
having stepped and kicked the body of the deceased; (2) abuse of superior strength, and (3) taking
advantage of public position, with respect to the accused CIC Loreto Gapasin who is a PC soldier"
(Rollo, pp. 35-36).
A warrant for the arrest of all the accused was issued on December 14, 1980. However, as of
January 10, 1980, only Nicanor Saludares and appellant had been arrested. On January 17, 1980,
the trial court granted the petition for bail of the two accused and fixed the same at P20,000.00
each. Having posted bail, Nicanor Saludares was ordered released on January 22, 1980. On the
other hand, appellant was ordered by the court to remain in the custody of
Capt. Alexander M. Bellen, commanding officer of the 118th Constabulary Company, in Roxas,
Isabela.
On February 4, 1980, Frank, Bel and Amor, all surnamed Saludares, were arrested. Lorenzo
Soriano, alias Olit, was arrested the following day. They were all allowed to post bail bonds in the
amount of P20,000.00 each and thereafter they were released from custody.
On the strength of LOI No. 947, as amended by LOI No. 1011, vesting jurisdiction on the Military
Tribunals of all crimes against persons and property committed with the use of unlicensed
firearms, the provincial fiscal filed a motion praying that Criminal Case No. IV-781 be transferred
to the Military Tribunal and that the bail bonds posted be cancelled. The prosecution reiterated the
motion in a manifestation dated August 21, 1980.
Accordingly, on August 27, 1980, the trial court ordered: (a) the cancellation of the bail bonds of
the accused; (b) the issuance of the warrants of arrest for all the accused except for Nicanor
Saludares, who was reported to have died; (c) the turn over of appellant to the Provincial Warden
of Isabela as he was not entitled to technical rearrest under Executive Order No. 106; (d) the turn
over to the said Provincial Warden of all the other accused upon their rearrest; and (e) thereafter,
the turn over of the case and the accused to the Military Tribunal thru the Provincial Commander
of the PC/INP, Ilagan, Isabela for further proceedings.
Pursuant to the endorsement dated September 19, 1980 of Lt. Col. Oscar M. Florendo, Isabela
Provincial Commander, appellant, together with Lorenzo Soriano, Amor Saludares and Bel
Saludares, was rearrested; while Nick and Frank Saludares remained at-large. On September 29,
1980, the trial court ordered the dismissal of the case against Nicanor Saludares on account of his
death on June 7, 1980.
The accused, however, filed a motion for the reconsideration of the Order of August 27, 1980 on
the grounds that the case was not covered by LOI
No. 947, the crime having been committed on October 6, 1979 or several days before the issuance
of said LOI. The trial court denied their motion.
By virtue of General Order No. 69 dated January 12, 1981, the records of the case were transferred
back to the trial court from the Military Tribunal. On April 1, 1981, the prosecution moved for the
recommitment of the accused to the provincial jail. The defense opposed the motion fearing
retaliation from a provincial jail guard, who was a relative of the victim. On May 12, 1981, the
trial court denied the motion and set the arraignment of the accused on June 1, 1981.
On May 18, 1981, Col. Florendo informed the trial court that Bel and Amor Saludares have
escaped from the Rehabilitation Center of the Provincial Command on April 10, 1981.
On May 29, 1981, the provincial fiscal moved for the reconsideration of the Order of May 12,
1981, alleging that the accused were not actually detained at the PC Headquarters and that, except
for appellant, the accused have absconded. Hence, to prevent a miscarriage of justice, the
provincial fiscal prayed for the recommitment of accused Soriano and appellant at the provincial
jail and for the issuance of the warrants of arrest for Amor, Bel and Frank Saludares.
The trial court granted the motion and issued warrants of arrest. Despite diligent efforts, however,
the other accused were not rearrested and hence, trial proceeded against accused Soriano and
appellant only. On June 1, 1981, they both pleaded not guilty.
Two years later, on June 1, 1983, the trial court denied appellant's application for bail but granted
that of accused Soriano, whose bail bond was fixed at P30,000.00. Being so persistent, appellant
filed a second motion for bail, which was denied by the trial court on June 1, 1984. He filed a third
motion to fix bail, which was likewise denied.
Relying on the provisions of Section 4 of P.D. No. 1850, appellant filed an urgent motion praying
that he be transferred to the custody of Col. Alfonso M. Mesa, then Provincial Commander of
Isabela. The trial court denied the motion. His motion for reconsideration having been denied,
appellant filed a petition for certiorari before the then Intermediate Appellate Court, alleging that
the trial court acted with grave abuse of discretion in refusing to apply Section 4 of P.D. No. 1850.
The appellate court granted the petition and ordered the immediate transfer of appellant to the
custody of his military commander.
Meanwhile, accused Frank Saludares was arrested and he entered a plea of not guilty at his
arraignment. He was later allowed to post bail. Since Soriano and Frank Saludares were both out
on bail, the defense opted to present evidence on behalf of appellant only and to submit the case
for decision as soon as possible. Thus, after almost six years, trial on the case ensued.
II
According to prosecution witness Alberto Carrido, he and Rodrigo Ballad left the house of Enteng
Teppang at about 2:00 P.M. of October 6, 1979 after attending the "pamisa" for the deceased father
of Teppang. Jerry Calpito followed them. While they were walking along the barangay road,
Calpito was shot by appellant with an armalite rifle. When Calpito fell on the ground, appellant
fired more shots at him. Thereafter, accused Amor Saludares planted a .22 caliber revolver on the
left hand of Calpito. Upon hearing the shots, Faustina Calpito ran to succor her fallen husband.
Accused Nicanor Saludares pointed his gun at Faustina while accused Soriano fired his gun
upwards. Saludares warned that he would kill any relative of Jerry Calpito who would come near
him. Faustina and the other relatives of the victim scampered away as the Saludares' group chased
them.
The body of Calpito was autopsied by Dr. Bernardo Layugan, who found that the victim sustained
four bullet wounds: (1) on the right lateral side of the arm fracturing the humerus; (2) on the right
lateral side of the thorax between the 7th and 8th ribs with exit wound at the sternum; (3) on the
left side of the thorax, anterior, between the 5th and 6th ribs; and (4) on the right fronto-parietal
portion of the head "severing the skull and brain tissues" (Exh. "F"). Dr. Layugan opined that the
victim was in a standing position when he was shot by someone positioned at his right.
Appellant invoked self-defense. He testified that he was issued a mission order on September 23,
1979 to investigate a report regarding the presence of unidentified armed men in Barrio San Jose,
Roxas, Isabela. The following day, he was instructed by Sgt. Dominador Ignacio to get in touch
with Nicanor Saludares who may be able to give him information on the identities of the persons
with unlicensed firearms in the place. When appellant met Nicanor Saludares on September 29,
1979, he was informed that Jerry Calpito had an unlicensed firearm.
On October 5, 1979, Nicanor Saludares went to the P.C. Headquarters in Roxas and told appellant
that it would be best for him to see Jerry Calpito the following day as a relative of the latter would
be buried. The next day, appellant went to Barangay San Jose, arriving there at 12 noon. Instead of
going to the cemetery, he went to the house of Nicanor Saludares. From there, they went to the
house of Enteng Teppang to attend the "pamisa." While they were having lunch, Nick Saludares
advised appellant against confronting Calpito because it would create a disturbance at the
"pamisa." He also told appellant that Calpito would surely pass his (Saludares) house on his way
home.
Appellant and Nicanor Saludares positioned themselves inside the yard of the latter. When
appellant saw Calpito, he went out of the yard into the barangay road. When Calpito was about
three meters away from him, appellant asked him what was bulging in his waist. Instead of
answering, Calpito took a step backward, drew his firearm from the waist and fired twice at
appellant. He missed because appellant dropped to the ground simultaneously firing his armalite.
After fifteen minutes, the police arrived and took the body of the victim to the morgue. Appellant
was brought to the P.C. Headquarters in Roxas, where he was investigated.
III
The appeal hinges primarily on the credibility of the prosecution witnesses. Appellant claims that
the prosecution witnesses, all of them being relatives of the victim, were naturally biased against
him.
This Court has time and again reiterated the principle that it will not interfere with the findings of
the trial court on the issue of credibility of witnesses and their testimonies unless the trial court has
plainly overlooked undisputed facts of substance and value which would have altered the result of
the case (People v. Matrimonio, 215 SCRA 613 [1992]). Findings of the trial court are generally
accorded great respect by an appellate tribunal for the latter can only read in cold print the
testimonies of the witnesses.
In the trial before the lower court, the eye-witnesses testified in their local dialect and their
testimonies had to be translated to English. In the process of converting into written form the
testimonies of the witnesses, not only the fine nuances but a world of meaning apparent only to the
trial judge, may escape the reader of the translated words (People v. Baslot, 209 SCRA 537
[1992]).
The fact that the prosecution witnesses are relatives of the victim does not necessarily indicate that
they were biased as to impair their credibility. In the absence of proof of ill motive on the part of
witnesses, relationship between them and the victim does not undermine their credibility. On the
contrary, it would be unnatural for persons such as the relatives of the victim who themselves seek
justice to commit the injustice by imputing the crime on persons other than those who are actually
responsible (People v. De Paz, 212 SCRA 56 [1992]).
Appellant's claim of self-defense is belied by the finding of the trial court that the victim was shot
by someone who was standing on his right side. Appellant's version that he was in front of the
victim when the latter fired a shot at him and that he retaliated while dropping on the ground,
crumbles in the face of the physical evidence that the victim sustained two gunshot wounds which
entered the right side of his body and a gunshot wound on the right side of his head. The nature
and number of wounds inflicted by the appellant disprove the plea of self-defense (People v.
Bigcas, 211 SCRA 631 [1992]).
Had appellant and Nicanor Saludares, Sr. not intended to harm the victim, they could have simply
apprehended him. Or, having verified that Calpito possessed an unlicensed firearm, appellant
could have reported the matter to his superiors so that warrants for Calpito's arrest and the seizure
of his unlicensed firearm could have been obtained.
Appellant contended that the crime committed is homicide. The trial court correctly ruled that the
crime of murder under Article 248 of the Revised Penal Code was indeed committed. Treachery
attended the commission of the crime. The two conditions to constitute treachery were present in
the case at bench, to wit: (a) the employment of means of execution that gives the person who is
attacked no opportunity to defend himself or to retaliate; and (b) the means of execution were
deliberately or consciously adopted (People v. Narit, 197 SCRA 334 [1991]).
Appellant deliberately executed the act in such a way that his quarry was unaware and helpless.
This can be gleaned from his act of waiting for the victim behind the hollow-block fence of
Nicanor Saludares and shooting the victim from his right side.
Evident premeditation was indubitably proven by the evidence showing that the execution of the
criminal case was preceded by cool thought and reflection. Appellant's resolution to carry out the
criminal intent during the space of time sufficient to arrive at a clear judgment was shown (People
v. Castor, 216 SCRA 410 [1992]).
In view of the presence of treachery which qualified the killing as murder, the evident
premeditation should be considered only as a generic aggravating circumstance (People v. Fabros,
214 SCRA 694 [1992]).
The information alleged three other generic aggravating circumstances: ignominy, abuse of
superior strength and taking advantage of public position. The trial court correctly ruled out
ignominy on the strength of the autopsy conducted by the doctor who failed to find any other
injuries such as bruises and contusions which may indicate that the victim was kicked by his
assailants. It also correctly held that treachery absorbed abuse of superior strength (People v.
Moral, 132 SCRA 474 [1984]).
The trial court properly appreciated taking advantage of public position as an aggravating
circumstance. Appellant, a member of the Philippine Constabulary, committed the crime with an
armalite which was issued to him when he received the mission order (People v. Madrid, 88 Phil.
1 [1951]).
Voluntary surrender may be considered in appellant's favor but this is offset by the aggravating
circumstance of taking advantage of public position. Therefore, only the generic aggravating
circumstance of evident premeditation may be appreciated against appellant. As such, the correct
penalty would have been death in accordance with Articles 248 and 64(3) of the Revised Penal
Code Were it not for the fact that such penalty is constitutionally abhorrent. Hence, the proper
penalty is reclusion perpetua.
The trial court correctly exercised its discretion in imposing moral, compensatory and exemplary
damages (People v. Rabanes, 208 SCRA 768 [1992]; People v. Quilaton, 205 SCRA 279 [1992]).
WHEREFORE, the decision appealed from is AFFIRMED.
SO ORDERED.
Cruz, Davide, Jr., Bellosillo and Kapunan, JJ., concur.
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SUPREME COURT
Manila
EN BANC
G.R. Nos. L-35123-24 July 25, 1984
vs.
RUDY TIONGSON, defendant-appellant.
Felipe L. Gozon for defendant-appellant.

CONCEPCION JR., J.:
At about 5:30 o'clock in the afternoon of October 26, 1971, the accused Rudy Tiongson escaped
from the Municipal Jail of Bulalacao, Oriental Mindoro, together with George de la Cruz and
Rolando Santiago, where they were detained under the charge of Attempted Homicide. While in
the act of escaping, the said Rudy Tiongson killed Pat. Zosimo Gelera, a member of the police
force of Bulalacao, Oriental Mindoro, who was guarding the said accused, and PC Constable
Aurelio Canela of the PC Detachment stationed in Bulalacao, Oriental Mindoro, who went in
pursuit of them.
By reason thereof, Rudy Tiongson was charged with Murder, in two separate informations,
committed as follows:
1. Crim. Case No. R-DJC-243:
That on the 26th day of October, 1971, at 6:00 o'clock in the evening, more or less, at Rizal, of the
Municipality of Bulalacao, Province of Oriental Mindoro, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, RUDY TIONGSON, conspiring and
confederating with Rolando Santiago and George de la Cruz, who are both at large by reason of
their forced escape, and with treachery, wilfully, unlawfully and feloniously waited in ambush,
waylaid and shot one C2C AURELIO M. CANELA, a member of the local Philippine
Constabulary Command, while the latter was in hot pursuit of said accused who had earlier
escaped from custody, thus fatefully resulting to the instantaneous death of the victim.
That the commission of the offense was qualified by the circumstance of treachery, and aggravated
by the circumstances of evident premeditation, in contempt of or with ingult to the public
authorities, nocturnity, committed in an uninhabited place and with abuse of superior strength.
2. Crim. Case No.R-DJC-244
That on the 26th day of October, 1971, at 5:30 o'clock in the afternoon, more or less, inside of the
Municipal Building, of the Municipality of Bulalacao, Province of Oriental Mindoro, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, RUDY
TIONGSON, conspiring and confederating with George de la Cruz and Rolando Santiago, and
under the pretext that they would answer the call of nature, convinced Police First Class Patrolman
Zosimo Gelera to allow them to go out from their being confined and detained in the Municipal
Jail of same Municipality by virtue of a previous offense, and while still hardly out of said jail
ganged up said Zosimo Gelera, took the latter's service pistol and with it, with treachery, shot
point blank said police officer at his right cheek, tragically resulting to the victim's instantaneous
death and thereafter, made good their escape.
That the offense is qualified by the circumstance of treachery, and aggravated by the
circumstances of evident premeditation, in contempt of or with insult to the public authorities and
with abuse of superior strength.
Upon arraignment, the said accused, assisted by counsel de oficio, pleaded guilty to both
informations. The trial court, however, did not render judgment outright, but ordered the
prosecution to present its evidence, after which, it sentenced the said accused to suffer the death
penalty in each case, to indemnify the heirs of the victims in the amount of P12,000.00 and to pay
the costs.
The death penalty having been imposed, the cases are now before the Court for mandatory review.
1. Able counsel appointed for the accused first claims that the acceptance of the plea of guilty
was precipitate since the trial judge did not ascertain from the accused that the latter was aware of
the consequences of his plea of guilty and that he fully understood the significance and meaning
thereof. Wherefore, he prays that the cases be returned to the court below for proper proceedings.
The norm that should be followed where a plea of guilty is entered by the defendant, especially in
cases where the capital penalty may be imposed, is that the court should be sure that defendant
fully understands the nature of the charges preferred against him and the character of the
punishment provided by law before it is imposed. For this reason, the Court requires that in every
case under a plea of guilty, where the penalty may be death, the trial court should call witnesses
for the purpose of establishing the guilt and degree of culpability of the defendant and not only to
satisfy the trial judge but to aid the Supreme Court in determining whether accuse understood and
comprehended the meaning, full significance and consequences of his plea. 1
In the instant case, the trial judge required the taking of testimony as to the circumstances under
which the crime was committed before passing judgment so that the resulting verdict cannot in
any way be branded as deficient.
2. Counsel also contends that the evidence presented by the prosecution does not warrant, nor
support, the finding that the killing of Pat. Zosimo Gelera was qualified by treachery since the
prosecution failed to present any eyewitness who directly saw the killing of Pat. Gelera. The
Solicitor General agrees with counsel for the accused.
According to the Revised Penal Code, 2 "there is treachery when the offender commits any of the
crimes against the person, employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself arising from the defense
which the offended party might make."
In the instant case, it does not appear how and in what position the victim was when he was killed
so that it cannot be said for certain that the accused had adopted a mode or means of attack
tending directly to insure or facilitate the commission of the offense without risk to himself arising
from the defense or retaliation which the victim might put up.
Pat. Nicandro Garcia of the Bulalacao police force merely declared that he was in his house, about
15 meters away from the municipal building when the accused Rudy Tiongson and his
companions escaped from prison , 3 and he did not see the accused shoot Pat. Gelera. 4
Police Chief Edwardo Borwangga did not also see the accused Rudy Tiongson shoot Pat. Gelera.
He declared that Pat. Gelera was already dead when he arrived at the municipal building in the
afternoon of October 26, 1971. 5
PC Sgt. Teotimo Saway, who led the pursuit of the escaped detainees, declared that he was in one
of the, stores in front of the Bulalacao municipal building, about 60 meters away, when he heard
two (2) gunshots coming from the direction of the municipal building, 6 and Pat. Gelera was
already dead when he saw him. 7
The circumstances qualifying or aggravating the act of killing a human being must be proved in an
evident and incontestable manner, mere presumptions or deductions from hypothetical facts not
being sufficient to consider them justified. Thus, in the case of U.S. vs. Barbosa, 8 the Court said
that "since the case does not furnish any evidence to the effect that Barbosa had formed the
deliberate, premiditated intention to take the life of his wife, and there was no eyewitness as to the
manner in which the deceased was strangled, consequently there is no provision of law under
which we can hold that the crime was committed with treachery, and it must be borne in mind that
the qualifying circumstances of a crime in its commission, in order to be considered, must be
established by competent evidence as well as the crime to which they relate.
In the case of U.S. vs. Perdon, 9 the Court said that since "neither this witness nor any other gives
any particulars whatever as to the manner in which the aggression was made, nor how the act
which resulted in the death of the deceased began and developed; and this being the case, it can
not be established from mere suppositions, drawn from circumstances prior to the very moment of
the aggression, that the accused had employed means tending to insure its success without any
danger to his person, which constitutes treachery (alevosia) as defined by the Penal Code. The
circumstances specifying an offense or aggravating the penalty thereof must be proved as
conclusively as the act itself, mere suppositions or presumptions being insufficient to establish
their presence according to law. No matter how truthful these suppositions or presumptions may
seem, they must not and can not produce the effect of aggravating the condition of the defendant."
The Court, in U. S. vs. Asilo, 10 I also ruled that since it was not established "that the aggressors
employed any means which might have rendered all defenses impossible for the deceased,
inasmuch as no one witnessed the very act of aggression, there is not sufficient ground to establish
the conclusion that the attempt which deprived Anastacio Claridad of his life was made with
treachery (alevosia). The treachery can in no way be presumed, but must be fully proven in order
to be appreciated for the effects of the Penal Code."
In People vs. Ramiscal, 11 the Court rejected the claim that treachery was present because "at the
time that the accused inflicted the wound upon the deceased there was not a single eyewitness, for
when the witnesses Umali and Chua Chuan entered the store the wound had already been
inflicted."
The Solicitor General also agreed with the defendant's counsel that treachery is not present in the
killing of PC Constable Aurelio M. Canela since the deceased was actually warned by PC Sgt.
Saway not to remain standing but seek cover because of the known presence of the accused in the
vicinity, but that the said deceased disregarded the warning.The pertinent portion of the testimony
of PC Sgt. Saway reads, as follows:
FISCAL SADICON:
Q Were you alone while you were pursuing those three escaping prisoners?
A No, sir.
Q Who was your companion if there was any?
A Pat. Nicandro Garcia, sir.
Q While you were pursuing these prisoners what happened next?
A When we were already along the mountain then watching for the appearance of the three
escapees, I saw C2C Aurelio Canela, sir.
Q What does this C2C mean?
A Constable Second Class, sir.
Q After seeing C2C Aurelio Canela approaching while you were waiting for the three escapees
what did you do?
A I signaled him to lie flat and indicated to him where the escapees seem to be moving, sir.
Q Then what did C2C Canela do upon your signal?
A He continued walking towards me and at the precise moment I signaled him again to lie down
because the escapees-prisoners were there, sir.
Q After that what happened?
A He did not heed my instruction and because of that I approached him and tried to hold him
instructing him to lie down but on that precise moment two shots were fired, sir.
Q From what direction those two shots came from?
A From my left approximately 4 meters away from me, sir,
Q What happened after hearing those two shots?
A I saw Canela already hit and shouting "aruy", sir. 12
Considering that PC Constable Canela had been sufficiently forewarned of the presence of the
appellant in the vicinity and that he was not completely deprived of an opportunity to prepare and
repel or avoid the aggression, treachery cannot be appreciated.
Since treachery, which would qualify the killing of Pat. Gelera and PC Constable Canela to
Murder, was not present, the crimes may only be punished as Homicide. It may be true that a
judicial confession of guilt admits all the material facts alleged in the information, including the
aggravating circumstances listed therein, as stated by the trial judge, yet where there has been a
hearing and such circumstances are disproven by the evidence, they should be disallowed in the
judgment. 13
3. We also agree with the parties that the aggravating circumstances of (1) evident
premeditation, (2) in contempt of or with insult to public authorities, (3) uninhabited place, and (4)
abuse of superior strength were not present in the commission of the crimes.
Evident premeditation must be ruled out in view of the absence of sufficient proof that a plan to
kill the victims existed, the execution of which was preceded by deliberate thought and reflection.
Besides, with respect to the killing of PC Constable Canela, only ten minutes passed from the time
the accused escaped from the Municipal Jail up to the time he shot PC Constable Canela near the
cemetery, 14 so that there was no lapse of time during which he could have deliberately planned
the killing of the said PC Constable and meditated on the consequences of his act.
The aggravating circumstance that the crimes were committed in contempt of or with insult to the
public authorities cannot also be appreciated since Pat. Gelera and PC Constable Canela were the
very ones against whom the crime were committed. Besides, Pat. Gelera and PC Constable Canela
are not persons in authority, but merely agents of a person in authority. 15
5. The lower court also found that the killing of PC Constable Canela was committed in an
uninhabited place. It has not been shown, however, that the offense was committed in an isolated
place, far from human habitation. In order that the aggravating circumstance of the commission of
a crime in an uninhabited place may be considered, it is necessary that the place of occurrence be
where there are no houses at all, a considerable distance from the village or town, or where the
houses are a great distance apart. 16 Here, PC Sgt. Saway merely declared that the place where PC
Constable Canela was shot was about 700 meters away from the Municipal Building of Bulalacao,
Oriental Mindoro, 17 which does not satisfy the requirement. Besides, the record does not show
that the place was intentionally sought by the accused to facilitate the commission of the crime.
The accused was trying to evade his pursuers, PC Constable Canela among them, and their
encounter was purely by chance. The lower court, therefore, erred in finding that the crime was
committed in an uninhabited place.
6. Finally, the aggravating circumstance of abuse of superior strength must also be ruled out since
there is no direct evidence that the accused employed superior strength in the killing of Pat.
Gelera. The accused was then a detainee and was unarmed while Pat. Gelera had his service pistol
with him. With respect to PC Constable Canela, the accused was alone against three armed
pursuers, namely: PC Sgt. Saway, PC Constable Canela, and Pat Nicandro Garcia, and a civilian
by the name of Fred Barcelona. 18
As heretofore stated, the accused is guilty only of the crime of Homicide in the killing of PC
Constable Canela and Pat. Gelera. The Solicitor General recommends that the accused should be
sentenced to suffer imprisonment of from 8 years and 1 day to 14 years and 8 months, with the
accessory penalties, for each homicide committed by him. The penalty recommended is within the
range provided by law.
WHEREFORE, with the modification that the accused Rudy Tiongson should be sentenced to
suffer imprisonment of from eight (8) years and one (1) day of prision mayor, as minimum, to
fourteen (14) years and eight (8) months of reclusion temporal, as maximum, for each homicide
committed by him, the judgment appealed from should be, as it is hereby, AFFIRMED. The
indemnity to be paid to the heirs of the victims is hereby increased to P30,000.00 in each case.
SO ORDERED.
Aquino, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la
Fuente and Cuevas, JJ., concur.
Fernando, C.J., concurs in the result.

Makasiar and Teehankee, JJ., took no part.
Footnotes
1 People vs. Gonzales, L-34674, Aug. 6, 1979, 92 SCRA 527 and other cases cited therein.
2 Art. 14, No. 16.
3 TSN. of Dec. 20, 1971. p. 11.
4 Id, p. 4.
5 Id, p. 13.
6 TSN. of Dec. 20, 1972, p. 2.
7 Id, p. 4.
8 1 Phil. 741 (1903).
9 4 Phil. 141 (1905).
10 4 Phil. 175 (1905).
11 49 Phil. 104.
12 TSN of Jan. 4, 1972, p. 3.
13 People vs. Boyles, 120 Phil. 92.
14 TSN of Dec. 20, 1971, p. 11,
15 People vs. Verzo, 129 Phil. 628.
16 U. S. vs. Salgado, 11 Phil. 56.
17 TSN of Jan. 4, 1972, p. 11.
18 TSN of Dec. 20, 1971, p. 10; TSN of Jan. 4, 1972, p. 4.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-68699 September 22, 1986
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
HERMOGENES MAGDUEO, accused-appellant.
Donato T. Faylona for accused-appellant.
PER CURIAM:
Before us for automatic review is the decision of the Regional Trial Court of Palawan and Puerto
Princesa City finding accused-appellant Hermogenes Magdueo guilty beyond reasonable doubt
of the crime of Murder qualified by treachery and evident premeditation and aggravated by price
or reward and by the crime being committed in contempt of/or with insult to public authority. The
court sentenced Magdueno to suffer the penalty of DEATH with all the accessory penalties
provided by law and to pay the costs; and to indemnify the heirs of the victim, Fernando M. Dilig
in the sum of P130,000.00 as actual damages and P20,000.00 as moral damages.
The amended information charged Hermogenes Magdueno, Apolinario Sison, Teodorico Ramirez,
Alejandro Guevarra, Alfredo Guevarra, and Edgardo Casabay with having committed the crime of
murder as follows:
That on or about the 15th day of October, 1980, and for sometime prior and subsequent thereto, in
the City of Puerto Princesa, Philippines and in Aborlan, Province of Palawan and within the
jurisdiction of this Honorable Court, the said accused, conspiring and confederating together and
mutually helping one another, did then and there wilfully, unlawfully and feloniously have in their
possession, custody and control a firearm, to wit: one (1) 9MM automatic pistol, without having
secured the necessary license and/or permit to possess the same from the proper authorities; that at
the aforementioned time and place while the said accused were in possession of the afore-
described firearm, conspiring and confederating together and mutually helping one another, with
treachery and evident premeditation, with intent to kill and while armed with said firearm, did
then and there wilfully, unlawfully and feloniously attack, assault and shoot one FERNANDO M.
DILIG, City Fiscal of Puerto Princesa City, thereby inflicting upon the latter mortal wounds which
were the direct and immediate cause of his death, to the damage and prejudice of his death, (sic) to
the damage and prejudice of his heirs in the amount of TWO HUNDRED FIFTY THOUSAND
(P250,000.00) PESOS, Philippine Currency.
CONTRARY TO LAW and committed with the aggravating circumstance of treachery, evident
premeditation that the crime was committed in consideration of a price, reward or promise; and
that the crime was committed in contempt of or with insult to public authorities.
The facts established by the prosecution and accepted by the lower court as basis for the decision
are summarized as follows:
On October 15, 1980, a few minutes past 8:00 o'clock in the morning, as soon as the late Fiscal
Fernando M. Dilig had placed himself at the driver's seat inside his jeep parked near his house at
the corner Roxas and D. Mendoza Streets, Puerto Princesa City, all of a sudden, two successive
gunshots burst into the air, as the gunman coming from his left side aimed and poured said shots
into his body, inflicting two fatal wounds (Exhibit N) that instantaneously caused his death, The
autopsy report of Dr. Rufino P. Ynzon, Puerto Princesa City Health Officer, described the wounds
as follows:
1. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by contusion collar, 0.3 cm. in
width almost evenly distributed around the gunshot wound, located at the lateral aspect, neck, left,
lower portion, directed medially, slightly anteriorly, and upwards penetrating the subcutaneous
tissues and muscles, involving the left lateral portion of the esophagus, then the right lateral
portion of the thyroid bone, the right common Carotid Artery, the right jugular vein, and piercing
the sterno-cleido Mastoid Muscle, then making a wound (exit), 1.3 cm. located at the lateral
aspect, neck, right, about 1 1/2 inches below the angle of the mandible.
2. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by Contusion Collar, 0.3 cm. in
width almost evenly distributed around the gunshot wound, located at the lumbar region, left about
2 inches posteriorly from the Mid-axillary line directed medially, slight anteriorly and slightly
upwards penetrating the sub-cutaneous tissues and muscles, then to the abdominal cavity and
involving the upper portion of the descending colon, and the two loops of small intestines, then
piercing the right abdominal muscles, making a wound, (exit), 1.5 cm. located at the lumbar
region, right, about 1 1/2 inches anterior to the mid-axillary line, right.
Three witnesses positively identified the assailant as accused Hermogenes Magdueo: (1) Elena
Adion Lim, while sitted (sic) at the gate of her fence, about 20 to 30 meters away from the house
of Fiscal Dilig, saw the gunman coming from where she heard two successive shots when he
passed by her house, bringing a short gun in his right hand and a clutch bag while hurriedly
proceeding towards Liwanag Street. On October 30, 1980, she identified accused Magdueno as the
man she saw that early morning of October 15, 1980; (2) Ernesto Mari Y Gonzales, a security
guard of the Malaria Eradication Service, this City, while on board a tricycle, passing in front of
the house of Fiscal Dilig, on his way home, likewise heard the two gunshots coming from the
direction of Fiscal Dilig's house, prompting him to order the driver to stop. He described the
gunman as wearing a white polo shirt, blue pants and a hat, still holding the gun pointed at Fiscal
Dilig. When the gunman turned to his left side, Mari saw a scar on his left temple below his left
eyebrow. The man was still holding the gun in his right hand while walking in a limping manner
towards Mendoza Street. On the witness chamber, he positively identified accused Hermogenes
Magdueno as the gunman; (3) Cynthia Canto a taxi dancer, residing at Jose Abad Santos, this City,
while in front of the store of Aling Charing near the house of Fiscal Dilig, waiting for a tricycle,
saw the gunman standing by for a quite time, then went nearer Fiscal Dilig who was then sitted
(sic) on the driver's seat of his jeep and fired two successive shots to the latter, exiting towards
Mendoza Street. She could not be mistaken that accused Hermogenes Magdueno was the gunman
and when she came face to face with him at the invitation of the police in Plaridel, Aborlan,
Palawan, she readily Identified Magdueo as the killer.
Magdueo also executed an extra-judicial confession wherein he admitted that he killed Fiscal
Dilig for a price or reward and implicated Leonardo Senas and Mauricio de Leon to the
commission of the crime. However, both Senas and de Leon were later dropped from the amended
information for lack of a prima facie case against them.
All the other accused were acquitted for insufficiency of evidence.
Gloria S. Dilig, the widow of the victim was presented as witness to prove the civil aspects of the
case. She testified on the actual damages the family incurred and the moral damages she suffered
as a result of the death of Fiscal Dilig.
The dispositive portion of the trial court's decision states:
WHEREFORE, judgment is hereby rendered finding:
1) Accused Hermogenes Magdueno guilty beyond reasonable doubt of the crime of murder
qualified by treachery and evident premeditation and aggravated by price or reward and that the
crime was committed in contempt of/or with insult of public authority, and hereby sentences him
to suffer the SUPREME PENALTY OF DEATH, with all the accessory penalties provided for by
law, and to pay the costs. He is likewise ordered to indemnify the heirs of the late Fernando M.
Dilig in the sum of P130,000.00, as actual damages and P20,000.00, as moral damages.
2) Accused Alejandro Guevarra, Teodorico Ramirez, Jr., Edgardo Caabay, Apolinario Sison and
Alfredo Guevarra, not guilty of the crime of murder and hereby acquits them of the charge against
them. The bailbond posted for the provisional liberty of accused Alejandro Guevarra, Teodorico
Ramirez, Jr., Edgardo Caabay and Alfredo Guevarra is hereby ordered cancelled and the
immediate release of accused Apolinario Sison is likewise ordered unless held for any other cause.
The appellant assigns the following errors allegedly committed by the lower court:
I THE COURT A QUO ERRED IN CONVICTING THE ACCUSED FOR MURDER.
II THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE ACCUSED'S
EXTRA-JUDICIAL CONFESSION.
We are convinced from the records that the appellant was the assailant of the late Fiscal Fernando
Dilig. The lower court did not err as alleged.
The appellant was a stranger in the town and was not known by the three eyewitnesses before the
incident. However, he was readily and positively Identified by the three eyewitnesses upon
confrontation. They could not have mistaken the appellant's Identity because they had a clear view
of him at the time and the incident happened in broad daylight. Any doubt of his Identity is erased
by the testimony of Ernesto Mari Gonzales, one of the eyewitnesses, to the effect that the man he
saw pointing a gun to the late Fiscal Dilig had a scar on his left temple below his left eyebrow. The
appellant, as observed by the lower court, has a scar below his left eye and above the left eye at
the eyebrow in the shape of a letter "J" and at the end of the left eye somewhat shaped like the
letter "V", perpendicular to the eyebrow.
The defense failed to show any motive on the part of these eyewitnesses to falsely accuse the
appellant as having committed the crime. The appellant's accusation that Cynthia Canto, one of the
eyewitnesses testified against him "to claim a reward" is not supported by any evidence on record.
In the light of the positive identification of the appellant as the perpetrator of the crime, his
defense of alibi necessarily falls. His assertion that on the day of the incident, he was at the house
of Leonardo Senas in Plaridel, Aborlan, Palawan deserves no credit. The appellant has not shown
that it was impossible for him to have been at the place of the incident at the time the crime was
committed. Moreover, as the lower court observed a bus ride from Aborlan, Palawan, would take
only a little more than two hours to the city.
Treachery in the commission of the crime is clearly established by the record.
The appellant fired two successive shots at the defenseless Fiscal Dilig while the latter was still
seated in his jeep, hitting him at the neck and lumbar region. According to Dr. Rufino P. Ynzon,
who performed the autopsy, on the victim; both wounds were fatal and that "death will definitely
occur." Immediately after the shooting, the appellant fled still holding his firearm.
The manner of the execution was such that the appellant deliberately and consciously adopted
means and ways of committing the crime and insured its execution without risk to himself arising
from any defense Fiscal Dilig might make. The two conditions necessary for treachery to exist are
present. (People v. Macariola, 120 SCRA 92; People v. Rhoda, 122 SCRA 909; People v.
Mahusay, 138 SCRA 452; and People v. Radomes, 141 SCRA 548).
The fact that the appellant called out, "Fiscal" before shooting the victim does not negate the
presence of treachery in the commission of the crime. Since the appellant was a hired killer, he
wanted to insure that he was shooting the correct person. When Dilig turned his face to find out
who was calling him, the appellant fired immediately rendering no opportunity for Dilig to defend
himself.
The attendant circumstance of treachery qualifies the crime to murder. The first assigned error is
without merit.
The second assignment of error questions the trial court's finding that the extra-judicial confession
was admissible.
The lower court quoted Section 20, Article IV of the Bill of Rights and took pains to explain why
there was compliance with its mandate. The court commented on the. imbalance present during
custodial interrogations, the strange and unfamiliar surroundings where seasoned and well-trained
investigators do their work, and then rejected the appellant's allegations that it was extracted
through violence and torture. The trial court stated:
But a cursory evaluation of the evidence shows that accused Magdueno was properly informed of
his constitutional rights to remain silent and to counsel and that any statement he might make
could be used against him He was allowed to communicate with, and was even given, a lawyer in
the person of Atty. Clarito A. Demaala, Jr. of the CLAO in this City. As certified to by Atty.
Demaala, Jr., he assisted and was present when the accused was placed under custodial
investigation. Even before it started, Atty. Demaala interviewed the accused and informed him of
his constitutional rights. NBI Officer-in- Charge Celso A. Castillo, affirmed this particular fact. He
was allowed to converse with his counsel in his cell and the statement thus obtained from him,
signed and subscribed by him as true, whether inculpatory or exculpatory, in whole and in part,
shall be, as it is hereby, considered admissible in evidence. (Morales, et al: v. Ponce Enrile, et al.
L-61016; Moncupa, Jr. v. Ponce Enrile, et al. L-61107, April 26, 1983.) It is presumed voluntary
and no contrary evidence was shown. (People v. Dorado, L-23464, 36 SCRA 452). There is
spontaneity and voluntariness in his extra-judicial confession which contains details that cannot be
furnished by the investigators on how the killing was planned, the reward to be received and the
scenario of the killing (People v. Opiniano, 22 SCRA 177). Furthermore, it was corroborated by
other evidence which recites the true sequence of events. (People v. Pontanosal, 20 SCRA 249).
With the admission of, and conformably to what the accused Hermogenes Magdueno alleged in,
his extra-judicial confession, the court finds that accused Magdueno was hired by a 'mysterious
mastermind' with whose representative he agreed to kill Fiscal Dilig for a fee of P80,000.00, of
which he will receive a clean bill of P 30,000.00. Sometime during the last week of September,
1980, at his residence in Divisoria, Metro Manila, he agreed to the proposition. The representative
of the mastermind,' Leonardo Senas, gave him the advance payment of P5,000.00, with the
balance of P25,000.00 to be paid after he accomplished the mission. As to the gun he used, it was
a 9mm. automatic revolver. This confirms the finding of the NBI. ...
The records show that the CLAO lawyer, Atty. Clarito Demaala, entered his appearance as counsel
for the accused during the interrogation and was present from the start of the investigation until it
was finished.
The evidence showing that the appellant was a contract or hired killer especially contacted in
Manila to do a job in Puerto Princesa is strengthened by testimony.
Magdueo himself testified that he was formerly an inmate of Muntinglupa who was later
transferred to Sta. Lucia Sub-Colony and released in 1973. He stated that after his release, he lived
with relatives in Divisoria and worked with an aunt as sidewalk vendor. He explained his presence
in Palawan on the day of the killing by claiming that sometime in 1979 Leonardo Senas
accidentally passed by their place in Tabora and suggested that the appellant bring assorted
merchandize to Aborlan, Palawan where Senas resides. He, therefore, left for Palawan on board
the M/V Leon on September 28, 1980 (or shortly before the killing) and visited Mauricio de Leon
at Quito, Puerto Princesa, saw head-nurse Mrs. Fernandez at Sta. Lucia, spent a night with a Mr.
Obid at the Inagawan Sub-Colony and proceeded to Aborlan, Palawan. He claims that at the time
of the shooting, he was in the house of Senas in Aborlan and learned only from the radio about the
killing of Fiscal Dilig.
One of the prosecution witnesses, Andres Factors, testified that he was formerly an inmate in
Muntinglupa since October 26, 1955 and that while serving a sentence for triple death penalty, he
met Magdueno, a leader of the Sputnik Gang, also on death row. Magdueo was nicknamed
"Mande" and served as an attendant in the prison hospital Factors stated that Magdueo was
known as a TIRADOR or killer while in prison He further testified that while he was in Sta. Lucia
Sub-Colony in 1980, he saw Magdueo on October 12 or 13 at the gate of Palawan Apitong. The
reason given by the appellant for his being there was that he was in the business of bangus fry.
There is plenty of other testimony about the participation of the appellant and the other accused
and the defenses they presented. The trial court summarized in its decision the testimonies of
sixteen (16) prosecution witnesses and twenty-one (21) witnesses for the defense.
We have carefully examined the records and considering the testimony of the three eyewitnesses
to the shooting, their positive and categorical Identification of the appellant as the assailant, the
corroborative evidence on the circumstances of the killing, and the more than coincidental
presence of Magdueo in Palawan when he should have been in Manila, we see no error in the
lower court's finding that the appellant committed the crime of murder qualified by treachery and
evident premeditation and aggravated by price and reward. Magdueo, in effect, also admitted that
he was a recidivist at the time of his trial. However, recidivism was not alleged in the information
and makes no difference in the determination of the penalty in this case.
However, the aggravating circumstance of commission of a crime with insult to public authority
does not seem to be borne by the records. For this aggravating circumstance to be considered it
must not only be shown that the crime was not committed in the presence of the public authority
but also that the crime was not committed against the public authority himself. (U.S. v. Rodriguez,
19 Phil. 150; People v. Rizal, 103 SCRA 282). In the instant case Fiscal Dilig, the public authority
involved in the crime, was the victim. Hence, the lower court, erred in including commission of
the crime with insult to public authority as an aggravating circumstance.
Considering the presence of an aggravating circumstance and the absence of any mitigating
circumstance attending the offense, the lower court imposed the proper penalty on the appellant.
The crime in this case is a particularly heinous one. The appellant is shown by the records as a
heartless contract killer. Upon being paid for a job, he had no compunctions about traveling all the
way to Palawan from Manila, stalking and liquidating an unwary victim whose only fault was to
perform his duties faithfully.
WHEREFORE, the lower court's judgment is hereby AFFIRMED.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz,
Paras and Feliciano, JJ., concur.
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SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 76338-39 February 26, 1990
vs.
RENATO TAC-AN Y HIPOS, accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Amadeo D. Seno for accused-appellant.
FELICIANO, J.:
Accused Renato Tac-an appeals from the decision of the Regional Trial Court of Tagbilaran City,
convicting him of qualified illegal possession of a firearm and ammunition in Criminal Case No.
4007 and of murder in Criminal Case No. 4012 and imposing upon him the penalty of death in
both cases.
On 18 December 1984, appellant was charged with violation of Section 1, paragraph (2), of
Presidential Decree No. 1866, committed as follows:
That, on or about the 14th day of December 1984, in the City of Tagbilaran Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, while acting under the
influence of drugs and without any license or permit from the proper authorities, did then and
there willfully, unlawfully and feloniously have ill his possession, custody and control an
unlicensed firearm, a SMITH & WESSON Airweight caliber .38 revolver with Serial Number
359323 with Five (5) spent shells and Five (5) live ammunitions and without any justifiable cause
and with intent to kill, used the said firearm and ammunitions to shoot one Francis Ernest Escano
III hitting and inflicting upon the latter the following gunshot wounds or injuries, to wit:
MULTIPLE GUNSHOT WOUNDS Head & Chest (through and through);
Head Entrance 1.4 x 2.2 cm., Left Fronto-Temporal Area; Port 1.3 x 0.3 cm.; Right Cheek.
3.5 cm. above the right external meatus;
Chest Entrance 0.3 x 1 cm. Right Infrascapular Area at the level of the 7th Intercostal Rib
(Back); Exist 0.3 cm. dia; above the right nipple;
Y-shape laceration, check at the right angle of the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8
which gunshot wounds or injuries directly caused his death, to the damage and prejudice of the
Republic of the Philippines.
Acts committed contrary to the provisions of Section 1, paragraph 2 of the Presidential Decree No.
1866. 1
On 11 January 1985, an amended information 2 for murder was also filed against appellant
reading as follows:
That, on or about the 14th day of December, 1984 in the City of Tagbilaran, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable
cause and with intent to kill, evident pre-meditation treachery, while acting under the influence of
drugs, with cruelty and deliberately augmenting the suffering of the victim, did then and there
willfully, unlawfully and feloniously attack, assault and shot one Francis Ernest Escano with the
use of an unlicensed SMITH & WESSON Airweight caliber .38 revolver with Serial Number
359323 hitting and inflicting upon the latter the following gunshot wounds or injuries, to wit:
MULTIPLE GUNSHOT WOUNDS Head and Chest (Through & Through);
Head Entrance 14 x 2.2 cm., Left Fronto-temporal Area; Port l.3 x 0.3 cm., Right Cheek, 3.5
cm., above the right external meatus;
Chest Entrance 0.3 x 1 cm. right Infrascapular Area at the level of the 7th Inter-Costal Rib
(back); exit 0.3 cm. dia; above the right nipple
Y-shape laceration, cheek at the angle of the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8.
which gunshot wounds or injuries directly caused his death, to the damage and prejudice of the
heirs of the deceased namely: Judge & Mrs. Francisco Rey H. Escano, in the amount to be proved
during the trial of the case.
Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, in relation to
Section 17 of Batas Pambansa Blg. 179, with the qualifying aggravating circumstances of evident
premeditation, treachery and acting under the influence of dangerous drugs and cruelty.
Appellant entered a plea of not guilty in both cases. The two (2) criminal cases were consolidated
upon motion of the prosecution and tried jointly. On 31 July 1986, the trial court rendered a
decision 3 convicting appellant under both informations. The dispositive portion of the decision
read as follows:
WHEREFORE, all the foregoing premises considered, decision is hereby rendered in Criminal
Case No. 4007 finding the accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of
Illegal Possession of Firearms and Ammunitions qualified with Murder under Section 1,
paragraphs 1 and 2 of Presidential Decree No. 1866 and hereby sentences said Renato Tac-an y
Hipos to suffer the penalty of DEATH. Further, decision is also rendered in Criminal Case No.
4012 finding the same accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of
Murder under Article 248 of the Revised Penal Code, in relation to Batas Pambansa Blg. 179 and
P.D. 1866. Appreciating the aggravating circumstance of evident premeditation (treachery used to
qualify the crime to murder) and the special aggravating circumstances of acting while under the
influence of dangerous drugs and with the use of an unlicensed firearm and with insult to a person
in authority and there being no mitigating circumstance to offset them, and sentences the said
Renato Tac-an y Hipos to suffer the penalty of DEATH. The accused is likewise ordered to
indemnify the heirs of the deceased Francis Ernest Escano in the amount of THIRTY
THOUSAND PESOS (P30,000.00); to pay actual compensatory damages in the amount of ONE
HUNDRED EIGHT THOUSAND THREE HUNDRED TEN PESOS (P108,310.00); to pay moral
damages to Judge Francisco Escano, Jr., the sum of ONE HUNDRED THOUSAND PESOS
(P100,000.00) and to Mrs. Lydia Escano the sum of ONE HUNDRED THOUSAND PESOS
(P100,000.00) for the mental anguish and suffering each experienced because of the death of
Francis Ernest. All such amount shall earn legal interest from the time this decision shall become
final and executory until fully satisfied. The accused shall also pay the costs.
SO ORDERED.
Immediately after promulgation of the decision, appellant signified his intention to appeal to this
Court, although the same was subject to automatic review by this Court.
In his brief, appellant assigned the following as errors allegedly committed by the trial court:
I. The lower court erred in believing the prosecution's version of the case instead of according
full faith and credence to the defendant's version.
II. The trial court erred in not holding that Renato Tac-an was justified in shooting the deceased.
III. The trial court erred in not holding that in (sic) the least the defendant acted in incomplete
self-defense in shooting the deceased.
IV. The trial court erred in not holding that P.D. 1866 is inapplicable to the defendant inasmuch
as said decree was enforceable only during the existence of the Martial Law Regime.
V. The trial court erred in not holding that the defendant was placed twice in jeopardy for having
been prosecuted for violation of P.D. 1866 despite his being prosecuted for murder in an
information which alleges that the accused used an unlicensed firearm in killing the deceased.
VI. The trial court erred in not adjudging the defendant innocent of murder.
From the record, the facts may be collated and summarized as follows:
Appellant Renato Tac-an, then eighteen (18) years and seven (7) months of age, and the deceased
Francis Ernest Escano III, fifteen (15) years old, were classmates in the third year of high school
of the Divine Word College in Tagbilaran City. They were close friends, being not only classmates
but also members of the same gang, the Bronx gang. Renato had been to the house where Francis
and his parents lived, on one or two occasions. On those occasions, Francis' mother noticed that
Renato had a handgun with him. Francis was then advised by his mother to distance himself from
Renato. 4
Francis withdrew from the Bronx gang. The relationship between Renato and Francis turned sour.
Sometime in September 1984, Renato and Francis quarrelled with each other, on which occasion
Francis bodily lifted Arnold Romelde from the ground. Arnold was friend and companion to
Renato. The quarrel resulted in Renato and Francis being brought to the high school principal's
office. The strained relationship between the two (2) erstwhile friends was aggravated in late
November 1984 when Francis teamed that Renato, together with other members of the Bronx
gang, was looking for him, apparently with the intention of beating him up. Further deterioration
of their relationship occurred sometime in the first week of December 1984, when graffiti
appeared on the wall of the third year high school classroom and on the armrest of a chair in that
classroom, deprecating the Bronx gang and describing Renato as "bayot" (homosexual) 5 Renato
attributed the graffiti to Francis.
At about 2:00 o'clock in the afternoon of 14 December 1984, Renato entered Room 15 of the high
school building to attend his English III class. Renato placed his scrapbook prepared for their
Mathematics class on his chair, and approached the teacher, Mrs. Liliosa Baluma, to raise a
question. Upon returning to his chair, he found Francis sitting there, on the scrapbook. Renato was
angered by what he saw and promptly kicked the chair on which Francis was seated. Francis,
however, explained that he had not intentionally sat down on Renato's scrapbook. A fistfight
would have ensued but some classmates and two (2) teachers, Mrs. Baluma and Mr. Damaso
Pasilbas, intervened and prevented them from assaulting each other. After the two (2) had quieted
down and apparently shaken hands at the instance of Mrs. Baluma, the latter resumed her English
III class. Francis sat on the last row to the extreme right of the teacher while Renato was seated on
the same last row at the extreme left of the teacher. While the English III class was still going on,
Renato slipped out of the classroom and went home to get a gun. He was back at the classroom
approximately fifteen (15) minutes later. 6
The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00 p.m. had just started in
Room 15 when Renato suddenly burst into the room, shut the door and with both hands raised,
holding a revolver, shouted "Where is Francis?" Upon sighting Francis seated behind and to the
light of student Ruel Ungab, Renato fired at Francis, hitting a notebook, a geometry book and the
armrest of Ruel's chair. Francis and Ruel jumped up and with several of their classmates rushed
forward towards the teacher's platform to seek protection from their teacher. Renato fired a second
time, this time hitting the blackboard in front of the class. Francis and the other students rushed
back towards the rear of the room. Renato walked towards the center of the classroom and fired a
third time at Francis, hitting the concrete wall of the classroom. Francis and a number of his
classmates rushed towards the door, the only door to and from Room 15. Renato proceeded to the
teacher, s platform nearest the door and for the fourth time fired at Francis as the latter was
rushing towards the door. This time, Francis was hit on the head and he fell on the back of Ruel
and both fell to the floor. Ruel was pulled out of the room by a friend; Francis remained sprawled
on the floor bleeding profusely. 7
Renato then went out of Room 15, and paced between Rooms 14 and 15. A teacher, Mr. Pablo
Baluma, apparently unaware that it was Renato who had gunned down Francis, approached
Renato and asked him to help Francis as the latter was still alive inside the room. Renato
thereupon re-entered Room 15, closed the door behind him, saying: "So, he is still alive. Where is
his chest?" Standing over Francis sprawled face down on the classroom floor, Renato aimed at the
chest of Francis and fired once more. The bullet entered Francis' back below the right shoulder,
and exited on his front chest just above the right nipple. 8
Renato then left with two (2) remaining students and locked Francis alone inside Room 15. Renato
proceeded to the ground floor and entered the faculty room. There, he found some teachers and
students and ordered them to lock the door and close the windows, in effect holding them as
hostages. He also reloaded his gun with five (5) bullets. After some time, a team of Philippine
Constabulary troopers led by Capt. Larino Lazo arrived and surrounded the faculty room. With a
hand-held public address device, Capt. Lazo called upon Renato to surrender himself Renato did
not respond to this call. Renato's brother approached Capt. Lazo and volunteered to persuade his
brother to give up. Renato's father who, by this time had also arrived, pleaded with Renato to
surrender himself Renato then turned over his gun to his brother through an opening in the
balustrade of the faculty room. Capt. Lazo took the gun from Renato's brother, went to the door of
the faculty room, entered and placed Renato under arrest. 9
Meantime, as soon as Renato left Room 15, some teachers and students came to rescue Francis but
could not open the door which Renato had locked behind him. One of the students entered the
room by climbing up the second floor on the outside and through the window and opened the door
from the inside. The teachers and students brought Francis down to the ground floor from whence
the PC soldiers rushed him to the Celestino Gallares Memorial Hospital. 10 Francis died before
reaching the hospital.
Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy, Tagbilaran City. The officer
deposited the revolver recovered from Renato which was an Airweight Smith and Wesson .38
caliber revolver, with Serial No. 359323, as well as the five (5) live bullets removed from the said
revolver, and the five (5) empty cartridges which Renato had turned over to him. Ballistic
examination conducted by Supervising Ballistician, Artemio Panganiban, National Bureau of
Investigation, Cebu, showed that the empty cartridge cases had been fired from the revolver
recovered from Renato. 11
Appellant at the outset assails the trial court for having believed the prosecution's version of the
facts instead of the version offered by the appellant. The trial court took into account, inter alia,
the positive and direct testimony of:
1. Mrs. Liliosa Baluma who testified as to, among other things, the events which took place
inside her English III classroom immediately before the shooting;
2. Ruel Ungab a fifteen (15) year old classmate of Renato and Francis, who had fallen on the
floor with Francis when the latter was finally hit by Renato;
3. Damaso Pasilbas the Mathematics teacher who was holding his class when Renato had
burst into Room 15 and started firing at Francis; and
4. Napoleon Jumauan another sixteen (16) year old, classmate of Renato and Francis who
was inside the classroom when Renato had started firing at Francis and who was only about a foot
away from the head of Francis when Renato, having re-entered Room 15, had fired at Francis as
the latter was sprawled on the floor of the classroom.
After careful examination of the record, we find no reason to disagree with the conclusion of the
trial court that Renato had indeed shot and killed Francis under the circumstances and in the
manner described by these witnesses.
1. The claim of self-defense.
Renato claimed that he was acting in self-defense, or at least in incomplete self-defense, when he
shot Francis. For a claim of self-defense to be sustained, the claimant must show by clear and
convincing evidence that the following requisites existed:
a) unlawful aggression on the part of the victim;
b) reasonable necessity of the means employed by the accused to repel the aggression; and
c) lack of sufficient provocation on the part of the accused. 12
Testifying in his own behalf, Renato said that a few minutes before the end of Mrs. Baluma's
English III class, Francis had approached him:
(Atty. Seno, Defense Counsel)
Q: How did it happened (sic) that you had a conversation with Francis?
(Renato)
A: While the class was going on, Mrs. Baluma was writing on the blackboard.
Q: Then what happened?
A: While our teacher was writing on the blackboard Francis suddenly got near me.
Q: And what happened when Francis approached you?
A: He said, 'So you are brave now you had a (sic) guts to fight against me.'
Q: And what else did he say?
A: He said, 'Go home, get your firearm because I will go home to get a gun.'
Q: Was that all that he told you?
A: He further said, 'You go home get your firearm, if you won't go home and get a gun, I will go
to your place and kill you including your parents, brothers and sisters.'
Q: And after that where did Francis go?
A: Before the bell rang he went ahead. 13
(Emphasis supplied)
We note at the outset that there was no evidence before the Court, except Renato's own testimony,
that Francis had uttered the above statements attributed to him by Renato. Although there had been
about twenty-five (25) other students, and the teacher, in the classroom at the time, no
corroborating testimony was offered by the defense. In the second place, assuming (arguendo
merely) that Francis had indeed made those statements, such utterances cannot be regarded as the
unlawful aggression which is the first and most fundamental requirement of self-defense.
Allegedly uttered in a high school classroom by an obviously unarmed Francis, such statements
could not reasonably inspire the "well grounded and reasonable belief" claimed by Renato that "he
was in imminent danger of death or bodily harm." 14 Unlawful aggression refers to an attack that
has actually broken out or materialized or at the very least is clearly imminent: it cannot consist in
oral threats or a merely threatening stance or posture. 15 Further as pointed out by the Solicitor
General, Francis was obviously without a firearm or other weapon when Renato returned and
burst into Room 15 demanding to know where Francis was and forthwith firing at him repeatedly,
without the slightest regard for the safety of his other classmates and of the teacher. There being
no unlawful aggression, there simply could not be self-defense whether complete or incomplete,
16 and there is accordingly no need to refer to the other requirements of lawful self-defense.
2. The claim that P.D. No. 1866 is inapplicable.
As pointed out at the outset, appellant was charged with unlawful possession of an unlicensed
firearm, a Smith and Wesson Airweight.38 caliber revolver with five (5) spent bullets and five (5)
live ones and with having used such firearm and ammunition to shoot to death Francis Ernest
Escano III, in violation of Section 1 of P.D. No. 1866.
Section 1 of P.D. No. 1866 provides, in relevant part, that:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua
shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or
possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed. (Emphasis supplied)
Appellant urges that P.D. No. 1866 is inapplicable to him "considering that the reason for its [P.D.
No. 1866] issuance no longer exists." He argues that P.D. No. 1866 was enforceable only during
the existence of martial law, and that when martial law was "lifted in 1979," the reason for the
"existence" of P.D. No. 1866 faded away, with the result that the "original law on firearms, that is,
Section 2692 of the [Revised] Administrative Code, together with its pre-martial law amendments,
came into effect again thereby replacing P.D. No. 1866." 17
There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which suggests that
it was intended to remain in effect only for the duration of the martial law imposed upon the
country by former President Marcos. Neither does the statute contain any provision that so
prescribes its lapsing into non-enforceability upon the termination of the state or period of martial
law. On the contrary, P.D. No. 1866 by its own terms purported to "consolidate, codify and
integrate" all prior laws and decrees penalizing illegal possession and manufacture of firearms,
ammunition and explosives in order "to harmonize their provisions as well as to update and revise
certain provisions and prior statutes "in order to more effectively deter violators of the law on
firearms, ammunitions and explosives." 18 Appellant's contention is thus without basis in fact.
3. The claim of double jeopardy.
It is also contended by appellant that because he had already been charged with illegal possession
of a firearm and ammunition in Criminal Case No. 4007, aggravated by the use of such unlicensed
firearm to commit a homicide or murder, he was unconstitutionally placed in jeopardy of
punishment for the second time when he was charged in Criminal Case No. 4012 with murder
"with the use of an unlicensed [firearm]," in violation of Article 248 of the Revised Penal Code in
relation to Section 17 of B.P. Blg. 179.
It is elementary that the constitutional right against double jeopardy protects one against a second
or later prosecution for the same offense, and that when the subsequent information charges
another and different offense, although arising from the same act or set of acts, there is no
prohibited double jeopardy. In the case at bar, it appears to us quite clear that the offense charged
in Criminal Case No. 4007 is that of unlawful possession of an unlicensed firearm penalized under
a special statute, while the offense charged in Criminal Case No. 4012 was that of murder
punished under the Revised Penal Code. It would appear self-evident that these two (2) offenses in
themselves are quite different one from the other, such that in principle, the subsequent filing of
Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited second
jeopardy.
We note that the information in Criminal Case No. 4007 after charging appellant with unlawful
possession of an unlicensed firearm and ammunition, went on to state that said firearm and
ammunition had been used to shoot to death Francis Ernest Escao III. We note also that the
amended information in Criminal Case No. 4012 after charging appellant with the unlawful killing
of Francis Ernest Escao III, stated that the killing had been done with the use of an unlicensed
firearm. We believe these additional allegations in the two (2) informations did not have the effect
of charging appellant with having committed the same offense more than once.
However, in sentencing Renato to suffer the penalty of death for the crime of murder, the trial
court did take into account as a "special aggravating circumstance" the fact that the killing of
Francis had been done "with the use of an unlicensed firearm." In so doing, we believe and so
hold, the trial court committed error. There is no law which renders the use of an unlicensed
firearm as an aggravating circumstance in homicide or murder. Under an information charging
homicide or murder, the fact that the death weapon was an unlicensed firearm cannot be used to
increase the penalty for the second offense of homicide or murder to death (or reclusion perpetua
under the 1987 Constitution). The essential point is that the unlicensed character or condition of
the instrument used in destroying human life or committing some other crime, is not included in
the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code. 19
In contrast, under an information for unlawful possession (or manufacture, dealing in, acquisition
or disposition) of a firearm or ammunition, P.D. No. 1866 authorizes the increase of the imposable
penalty for unlawful possession or manufacture, etc. of the unlicensed firearm where such firearm
was used to destroy human life. Although the circumstance that human life was destroyed with the
use of the unlicensed firearm is not an aggravating circumstance under Article 14 of the Revised
Penal Code, it may still be taken into account to increase the penalty to death (reclusion perpetua,
under the 1987 Constitution) because of the explicit provisions of P.D. No. 1866. As noted earlier,
the unlawful possession of an unlicensed firearm or ammunition is an offense punished under a
special law and not under the Revised Penal Code.
4. The claim that there was no treachery.
Appellant contends that there was no treachery present because before any shot was fired, Renato
had shouted "where is Francis?" Appellant in effect suggests his opening statement was a warning
to Francis and that the first three (3) shots he had fired at Francis were merely warning shots.
Moreover, building upon his own testimony about the alleged threat that Francis had uttered
before he (Renato) left his English III class to go home and get a gun, appellant argues that Francis
must have anticipated his return and thus had sufficient time to prepare for the coming of the
appellant. 20 Appellant's contention, while ingenious, must be rejected. The trial court made a
finding of treachery taking explicit account of the following factors:
1. Room 15 of the Divine Word College High School Department Tagbilaran City, is situated in
the second floor of the building. It is a corner room and it has only one (1) door which is the only
means of entry and exit;
2. At the time of the attack, the deceased was seated on his chair inside his classroom and was
writing on the armrest of his chair and also talking to Ruel Ungab and while their teacher, Mr.
Damaso Pasilbas was checking the attendance. The deceased was not aware of any impending
assault neither did he have any means to defend himself;
3. The accused used an airweight Smith & Wesson .38 caliber revolver in shooting to death the
defenseless and helpless Francis Ernest Escao;
4. The attack was so sudden and so unexpected. the accused consciously conceived that mode
of attack;
5. The accused fired at Francis again and again and did not give him a chance to defend himself.
After the deceased was hit on the head and fell to the floor while he was already sprawled and
completely defenseless the accused fired at him again and the deceased was hit on the chest;
6. The deceased was not armed. He was totally defenseless. He was absolutely not aware of any
coming attack. 21
The Court also pointed out that Renato must have known that Francis while inside Room 15 had
no means of escape there being only one (1) door and Room 15 being on the second floor of the
building. Renato in effect blocked the only exit open to Francis as he stood on the teacher's
platform closest to the door and fired as Francis and Ruel sought to dash through the door.
Renato's question "where is Francis?" cannot reasonably be regarded as an effort to warn Francis
for he shot at Francis the instant he sighted the latter, seated and talking to Ruel Ungab. That
Renato fired three (3) shots before hitting Francis with the fourth shot, can only be ascribed to the
indifferent markmanship of Renato and to the fact that Francis and the other students were
scurrying from one part of the room to the other in an effort to evade the shots fired by Renato.
The cumulative effect of the circumstances underscored by the trial court was that the attack upon
Francis had been carried out in a manner which disabled Francis from defending himself or
retaliating against Renato. Finally, the circumstance that Renato, having been informed that
Francis was still alive, re-entered Room 15 and fired again at Francis who lay on the floor and
bathed with his own blood, manifested Renato's conscious choice of means of execution which
directly and especially ensured the death of his victim without risk to himself. 22 We are
compelled to agree with the trial court that treachery was here present and that, therefore, the
killing of Francis Ernest Escao III was murder.
5. The claim that there was no evident premeditation.
The trial court also found the presence of evident premeditation and appreciated the same as a
generic aggravating circumstance. Here, it is the urging of the appellant that the requisites of
evident premeditation had not been sufficiently shown. In order that evident premeditation may be
taken into account, there must be proof of (a) the time when the offender formed his intent to
commit the crime; (b) an action manifestly indicating that the offender had clung to his
determination to commit the crime; and (c) of the passage of a sufficient interval of time between
the determination of the offender to commit the crime and the actual execution thereof, to allow
him to reflect upon the consequences of his act. 23 The defense pointed out that barely fifteen (15)
minutes had elapsed from the time Renato left his English III class and the time he returned with a
gun. While there was testimony to the fact that before that fatal day of 14 December 1984, anger
and resentment had welled up between Francis and Renato, there was no evidence adequately
showing when Renato had formed the intention and determination to take the life of Francis.
Accordingly, we must discard evident premeditation as an aggravating circumstance.
6. The claim that the killing was not done under the influence of a dangerous drug.
Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982 provides as follows:
SEC. 17. The provisions of any law to the contrary notwithstanding, when a crime is committed
by an offender who is under the influence of dangerous drugs, such state shall be considered as a
qualifying aggravating circumstance in the definition of a crime and the application of the penalty
provided for in the Revised Penal Code.
The trial court found that Francis was killed by Renato while the later was under the influence of a
dangerous drug, specifically marijuana, and took that into account as a "special aggravating
circumstance". No medical evidence had been submitted by the prosecution to show that Renato
had smoked marijuana before gunning down Francis. Fourteen (14) days had elapsed after
December 14, 1984 before Renato was medically examined for possible traces of marijuana; the
results of the examination were negative. Defense witness Dr. Rogelio Ascona testified that in
order to have a medically valid basis for determining the presence of marijuana in the human
system, the patient must be examined within twenty-four (24) hours from the time he is supposed
to have smoked marijuana. 24 The prosecution had presented Orlando Balaba, a student at the
Divine Word College, High School Department, who testified that he found Renato and one Jaime
Racho inside the men's room of the High School Department sucking smoke from a hand-rolled
thing that look like a cigarette, that he had asked Renato what that was and that Renato had replied
damo (marijuana). 25 While the testimony of Orlando Balaba was corroborated by two (2) other
prosecution witnesses, we believe that Orlando Balaba's testimony was incompetent to show that
what Renato and Jaime Racho were smoking inside the men's room was indeed marijuana. It was
pointed out by apellant that Orlando Balaba had never smoked nor smelled marijuana.
In the absence of medical evidence, the Court took into account certain detailed factors as
circumstantial evidence supporting the testimony of Orlando Balaba. These circumstances were:
The circumstance of place where the killing was committed, the circumstance of the manner of the
attack, the circumstance of holding hostage some teachers and students inside the faculty room,
the circumstance of terrifying an entire school, the circumstance that sitting on a scrapbook is too
insignificant as to arouse passion strong enough to motivate a killing, are circumstantial evidences
that gave the court no room for doubt that prosecution witnesses Orlando Balaba, Benjamin
Amper and Allan de la Serna truthfully told the court that they saw the accused smoking marijuana
inside the comfort room at 1:45 in the afternoon of December 14, 1984. ... . 26
The above circumstances pointed to by the trial court may be indicative of passionate anger on the
part of Renato; we do not believe that they necessarily show that Renato had smoked marijuana
before entering his English III class. In the absence of competent medical or other direct evidence
of ingestion of a dangerous drug, courts may be wary and critical of indirect evidence, considering
the severe consequences for the accused of a finding that he had acted while under the influence of
a prohibited drug. The Court considers that the evidence presented on this point was simply
inadequate to support the ruling of the trial court that Renato had shot and killed Francis while
under the influence of a prohibited drug.
7. The claim that appellant had voluntarily surrendered.
Appellant contends that he had voluntarily surrendered and that the trial court should have
considered that mitigating circumstance in his favor. The trial court did not, and we consider that it
correctly refused to do so. Firstly, Renato surrendered his gun, not himself, 27 by handing over the
weapon through the balustrade of the faculty room. Secondly, he surrendered the gun to his
brother, who was not in any case a person in authority nor an agent of a person in authority. 28
Thirdly, Renato did not surrender himself he was arrested by Capt. Lazo. The fact that he did not
resist arrest, did not constitute voluntary surrender. 29 Finally, if it be assumed that Renato had
surrendered himself, such surrender cannot be regarded as voluntary and spontaneous. Renato was
holed up in the faculty room, in effect holding some teachers and students as hostages. The faculty
room was surrounded by Philippine Constabulary soldiers and there was no escape open to him.
He was not entitled to the mitigating circumstance of voluntary surrender.
8. Whether or not the crime was committed in contempt of or with insult to the public
authorities.
The trial court held that the shooting to death of Francis had been done "in contempt of or with
insult to the public authorities:
Under Republic Act 1978, as amended, a teacher of a public or private school is considered a
person in authority. The fact that Mr. Damaso Pasilbas, the teacher in mathematics, was already
checking the attendance did not deter the accused from pursuing his evil act, The accused ignored
his teacher's presence and pleas. Not yet satisfied with the crime and terror he had done to Francis
and the entire school, the accused entered the faculty room and held hostage the teachers and
students who were inside that room. To the court, this act of the accused was an insult to his
teachers and to the school, an act of callus disregard of other's feelings and safety and completely
reprehensible. 30
We believe the trial court erred in so finding the presence of a generic aggravating circumstance.
Article 152 of the Revised Penal Code, as amended by Republic Act No. 1978 and Presidential
Decree No. 299, provides as follows:
Art. 152. Persons in authority and agents of persons in authority. Who shall be deemed as such.
In applying the provisions of the preceding and other articles of this Code, any person directly
vested with jurisdiction, whether as an individual or as a member of some court or government
corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a
barangay chairman shall also be deemed a person in authority.
A person who by direct provision of law or by election or by appointment by competent authority,
is charged with the maintenance of public order and the protection and security of life and
property, such as a barrio councilman, barrio policeman and barangay leader and any person who
comes to the aid of persons in authority, shall be deemed an agent of a person in authority.
In applying the provisions of Articles 148 and 151 of this Code, teachers, professors and persons
charged with the supervision of public or duly recognized private schools, colleges and
universities, and lawyers in the actual performance of their professional duties or on the occasion
of such performance, shall be deemed persons in authority. (As amended by P.D. No. 299,
September 19, 1973 and Batas Pambansa Blg. 873, June 12, 1985).
Careful reading of the last paragraph of Article 152 will show that while a teacher or professor of a
public or recognized private school is deemed to be a "person in authority," such teacher or
professor is so deemed only for purposes of application of Articles 148 (direct assault upon a
person in authority), and 151 (resistance and disobedience to a person in authority or the agents of
such person) of the Revised Penal Code. In marked contrast, the first paragraph of Article 152
does not identify specific articles of the Revised Penal Code for the application of which any
person "directly vested with jurisdiction, etc." is deemed "a person in authority." Because a penal
statute is not to be given a longer reach and broader scope than is called for by the ordinary
meaning of the ordinary words used by such statute, to the disadvantage of an accused, we do not
believe that a teacher or professor of a public or recognized private school may be regarded as a
"public authority" within the meaning of paragraph 2 of Article 14 of the Revised Penal Code, 31
the provision the trial court applied in the case at bar.
ACCORDINGLY, the decision of the trial court dated 31 July 1986 is hereby MODIFIED in the
following manner and to the following extent only:
1. In Criminal Case No. 4007, appellant shall suffer the penalty of reclusion perpetua;
2. In Criminal Case No. 4012 (a) the aggravating circumstances of evident premeditation and
of having acted with contempt of or insult to the public authorities shall be DELETED and not
taken into account; and (b) the special aggravating circumstances of acting while under the
influence of dangerous drugs and with the use of an unlicensed firearm shall similarly be
DELETED and not taken into account. There being no generic aggravating nor mitigating
circumstances present, the appellant shall suffer the penalty of reclusion perpetua.
The two (2) penalties of reclusion perpetua shall be served successively in accordance with the
provisions of Article 70 of the Revised Penal Code. As so modified, the decision of the trial court
is hereby AFFIRMED. Costs against appellant.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.
Footnotes
1 Rollo, pp. 11-12.

2 Rollo, pp. 13-14.
3 Ibid, pp. 30-93.
4 TSN, 12 November 1985, pp. 179-180.
5 TSN, 28 April 1986, pp. 11-16.
6 TSN, 1 April 1985, pp. 8-16, 30: TSN, 2 April 1985, pp. 5-11.
7 TSN, 2 April 1985, pp. 11, 12,19-39; TSN, 25 April 1986, pp. 39-48.
8 TSN, 10 September 1985, pp. 144-147; TSN, 11 November 1985, pp. 106-107.
9 TSN, 1 April 1985, pp. 22-26.
10 TSN, 10 September 1985, pp. 152-154.
11 See Ballistic Report. Exhibit "I" for the Prosecution.
12 Article 11 (1), Revised Penal Code.
13 Appellant's Brief, pp. 23-24; Rollo, pp. 134-135.
15 People v. Lachica, 132 SCRA 230 (1984).
16 People v. Nulla, 153 SCRA 471 (1987).
17 Appellants Brief, p. 42; Rollo, p. 153.
18 Third, Fourth and Fifth Whereas Clauses. P.D. No. 1866.
19 And even if it were, the provisions of Article 62, paragraph 1 of the same Code would
become applicable to prevent its being appreciated for the purpose of increasing the imposable
penalty:
Article 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual
delinquency. ... ...
(1) Aggravating circumstances which in themselves constitute a crime specially punishable by law
or which are included bythe law in defining a crime and prescribing the penalty therefor shall not
be taken into account for the purpose of increasing the penalty. (Emphasis supplied.)
21 Rollo, pp. 82-83.
22 People v. Tingson, 47 SCRA 243 (1972).
23 People v. Estillore, 141 SCRA 456 (1986).
24 TSN, 1 April 1986, pp. 166-169.
25 TSN, 11 November 1985, pp. 172-175.
26 Rollo, p. 206.
27 People v. Palo, G.R. No. L-9593, 31 July 1957.
28 Article 13, paragraph 7, Revised Penal Code.
29 People v. Siojo, 61 Phil. 307 (1935); People v. Yuman, 61 Phil. 786 (1935); People v. Velez,
58 SCRA 21 (1974); and People v. Conwi, 71 Phil. 595 (1976).
30 Decision, RTC, p. 45; Rollo, p. 207.
31 Reyes, L.B., Revised Penal Code, p. 133 (1981 ed.).

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SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-24002 January 21, 1974

vs.
FRANCISCO DIAZ and GERARDO DIAZ, defendants-appellants.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro
and Solicitor Eduardo C. Abaya for plaintiff-appellee.
Jovito R. Salonga for defendants-appellants.
AQUINO, J.:1wph1.t
This is an appeal of defendants Francisco Diaz and Gerardo Diaz from the decision of the Court of
First Instance of Samar convicting them of murder.
Gerardo was sentenced to reclusion perpetua, while Francisco was sentenced to an indeterminate
penalty of ten (10) years and one (1) day of prision mayor to seventeen (17) years of reclusion
temporal. Both appellants were ordered to pay solidarily to the heirs of Quintin Tadia an
indemnity in the sum of six thousand pesos (P6,000) and to pay the costs proportionately.
(Criminal Case No. 202-CC).
There should be no difficulty in resolving the appeal. The case is classic in its simplicity. The
prosecution's evidence consists of eyewitness testimony or direct evidence, not deceptive
circumstantial evidence. Appellant Francisco Diaz admits that he killed Tadia. He justifies the
killing on the ground of self-defense. His younger brother Gerardo denies any participation in the
killing. He has set up the easily contrivable defense of alibi.
So, the main issue is whether credence can be accorded to Francisco Diaz's plea of self-defense
and Gerardo's alibi.
The alternative issues are whether the brothers conspired to kill the victim and whether treachery
and evident premeditation should qualify the killing as murder. The trial court did not pass upon
those ancillary issues.
The evidence for the prosecution shows that at about two o'clock in the afternoon of September 4,
1963 Remegia Carasos, a fourteen-year old girl, and her first cousin, Anita Pacaira (Pakaira),
eleven years old, were gathering camotes in a farm located at a place fittingly called Sitio
Camotian, Barrio Perito, municipality of Sta. Margarita, Western Samar.
In that peaceful, rustic scene, there suddenly appeared Francisco Diaz (Ansing or Francing), a
twenty-four year old unmarried farmer of that place, whom Remegia and Anita had known for
many years. Without any preliminaries, he embraced Remegia from behind and against her will
and held her breast. He knelt behind her while she was gathering camotes. She shouted for help,
saying: "Anita (Aning), help me because I am being embraced". Reacting to Remegia's cry for
help, Anita, with a bolo, struck Francisco on the head and hands. Francisco released Remegia and
fled. He suffered some injuries in consequence of those blows. The injuries were treated at the
puericulture center by the sanitary inspector (Exh. D and D-1).
The two girls left the camote farm and hastened to the house of Quintin Tadia (Tadya), their
grandfather, in Sitio Ilawod. They informed him that Francisco Diaz had embraced and abused
Remegia. Remegia had been brought up by her grandfather. She was then staying with him. Anita
was living with her parents in a house about six brazas from Tadia's house.
Tadia immediately reported the incident to the barrio lieutenant. He gave Tadia a note for the
municipal authorities so that the proper complaint could be filed against Francisco Diaz.
At around seven o'clock in the morning of the following day, September 5th, Tadia, accompanied
by his teenage granddaughters, Remegia and Anita, was on his way to the poblacion of Sta.
Margarita to file complaint. He was unarmed. He was carrying on his back a catopis, an oblong
basket about four by two "palms' length" containing provisions of boiled camotes. He was walking
ahead, followed by Remegia and Anita one braza behind him.
While they were ascending the hill or cliff ( pangpang in Waray dialect) in Sitio Ilawod, Francisco
Diaz and his younger brother Gerardo (Adong), twenty-one years old, appeared on the crest of the
hill. Both were wearing denim pants and white shirts. Gerardo was armed with a locally made
shotgun called bardog (Exh. C), about fifty inches long. He immediately fired sidewise at Tadia
while about four meters from the latter, hitting him in the neck. The shot felled Tadia. He rolled
down the lower part of the cliff near the Alao Creek and lay there flat on his back with his catopis.
Then, the brothers jumped to the lower part of the cliff. Gerardo told his brother: "Go ahead,
Francisco, stab that fellow". Francisco placed his foot on the prostrate body of Quintin Tadia, bent
over him and repeatedly stabbed him in different parts of his body. Francisco was armed with a
bolo commonly called utak which is used in gathering firewood.
After witnessing the assault, Remegia Carasos ran in the direction of her house. Anita Pacairo hid
herself among the bushes or tall grasses "sitting, crouching and peeping" and "seeing all that was
happening" (78 tsn.). Tadia died on the spot where he fell. Gerardo placed his bardog on a moss-
covered stone called palanas about three brazas from Tadia's body. Remegia informed her father
and the inhabitants of the barrio about the ambuscade and the killing of her grandfather. Gerardo
Diaz went home while Francisco surrendered to the authorities.
Doctor Tecla Tagle Valley, the town's municipal health officer, performed an autopsy on the body
of the deceased Quintin Tadia. Her medical findings indicate that the following injuries caused the
death of the sixty-two year old victim:
1. Internal hemorrhage due to penetrating wounds on the chest about two and one-half inches
long and five inches in depth, penetrating the lower lobe of the right lung, superior vena cava and
the right ventricle of the heart.
2. Punctured wound, one inch long and one inch in depth, left mandibular region.
3. Stab wound, one inch long and one half inch in depth below left ear.
4. Penetrating wound, four inches in depth, about one centimeter in circumference, occipital
region.
5. Penetrating wound, four inches and one half in depth, about one centimeter in circumference
at the nape.
6. Stab wound, one-half inch in depth and three inches long, left shoulder.
7. Punctured wound, left leg, about two inches long, penetrating thru the side portion. (Exh. A).
Doctor Valley found two pellets ( perdigones or birdshot) in the two gunshot wounds. The pellet
found in the nape is Exhibit B.
On September 6, 1963 Gerardo Diaz was arrested in Barrio Perito by Policemen Venancio Melka
and Simplicio Calibo. He did not resist arrest. He was in good physical condition. On September
9, 1963, or four days after the killing, Remegia and Anita executed before the municipal judge
sworn statements wherein they recounted the antecedents and details of the killing (pages 3 to 8 of
the Record). On that same date the chief of police filed in the municipal court a complaint for
murder against the Diaz brothers.
They waived the preliminary investigation. The case was remanded to the Court of First Instance
at Calbayog City where, on November 6, 1963, the fiscal filed against them an information for
murder.
As already noted, appellant Francisco Diaz, while assuming sole responsibility for the killing, set
up the exculpatory plea of self-defense. His version was that he and Tadia were neighbors.
Because he did not accede to Tadia' request for a pig, Tadia allegedly followed him to his abaca
plantation near the Alao River. When Francisco again refused to grant Tadia's request for the pig,
the latter allegedly hacked Francisco with his bolo, wounding him the hand between the middle
and index fingers and in the left side of his head. Francisco retreated, but when he was cornered,
"he pulled the trigger of" his shotgun, causing Tadia "to release his bolo". Francisco then picked
up Tadia's bolo (note that Francisco himself had his own bolo). He threw away his gun and
repeatedly stabbed Tadia. After the stabbing he surrendered to the authorities.
The inveracity of Francisco's version is quite apparent. The wounds, which according to Francisco
were inflicted on him by Tadia, were the injuries which were inflicted on him on the preceding
day by Anita Pacairo (Exh. D-1). The improbable facets of his story induce disbelief. A trivial
cause may possibly provoke a man to assault another person. But it was unlikely in this case that
Tadia, a sexagenarian grandfather, would have gone to the extent of assaulting the twenty-four
year old Francisco Diaz who was armed with a gun and a bolo, just because the latter refused to
give him a pig.
The prosecution eyewitnesses, Remegia Carasos and Anita Pacaira, positively identified Gerardo
Diaz as the gun wielder who with his brother, Francisco, ambushed Tadia on the cliff. Such an
unmistakable identification can be negated by the alibi interposed by Gerardo Diaz. He claimed
that on September 5, 1963 he was in his house "having a headache and his bones were aching" (p.
7, Appellant's Brief). He said that he was treated by Honorio Albite. His mother said that Gerardo
was treated by Liloy Diaz. Gerardo said that he was already sick on September 2, 1963. His
mother, who does not know the months of the year, said that he got sick on September 4th. These
discrepancies weaken Gerardo's alibi. Modesto Diaz, the father of Gerardo, tried to corroborate his
alibi. Modesto, "hopelessly illiterate" person, did not know the month and year when Gerardo was
sick.
Gerardo's supposed indisposition could not have prevented him from going to the cliff with
Francisco and waylaying the unsuspecting and unfortunate Tadia. To establish an alibi, the
accused must show that he was at another place for such a period of time that it was impossible for
him to have been at the place where the crime was committed at the time of its commission
(People vs. Resayaga, L-23234, December 26, 1973; People vs. Lumantas, L-28355, July 17,
1969, 28 SCRA 764, 768).<re||an1w> The alibi of Gerardo Diaz cannot be sustained. His
counsel de oficio agrees "that the defense of alibi is inherently weak and is generally received with
caution". In this case, it was evidently a manufactured alibi.
The trial court carefully observed the demeanor of Remegia Carasos and Anita Pacaira while
testifying. It found them to be "candid and trustworthy" eyewitnesses. The killing was perpetrated
in broad daylight. Remegia was even able to recollect the garments worn by the Diaz brothers.
As appropriately observed by the trial court, the brothers conspired to kill Tadia to prevent him
from filing a charge of abusos deshonestos. Moreover, Francisco Diaz might have felt aggrieved
because Anita Pacaira had hit him with a bolo and wounded him in the head and hand (Exh. D-1).
The alternative contention of appellant Gerardo Diaz is that he did not conspire with his brother
Francisco in assaulting Tadia and that he should be held liable only for lesiones for shooting the
victim. That contention is belied by the record.
Doctor Valley found that two gunshots wounds were inflicted. One was a penetrating wound in the
occipital region and another was a penetrating wound in the nape (Nos. 4 and 5, Exh. A). She
testified that, because those wounds were not treated, they contributed to the victim's death.
Gerardo was the one who inflicted those wounds. He used a deadly weapon. He fired at the vital
parts of the victim's body. He desisted from firing further because the victim had fallen on the
river bank below the cliff as a result of the first shot and was beyond the range of his gun, which
was intended for hunting birds.
The conspiracy between the brothers to kill Tadia may be inferred from the antecedents and
circumstances surrounding the killing. The lascivious or vexatious act committed by Francisco
Diaz on Remegia Carasos was reported to the barrio lieutenant. He advised Tadia to go to town
and lodge a complaint with the proper authorities. That fact must have been known to Francisco
Diaz. He wanted to forestall that eventuality. To accomplish that objective, he decided to liquidate
Tadia. It was natural or probable that he should seek the collaboration of his younger brother
Gerardo.
The two brothers appeared together on the cliff on that fateful morning of September 5, 1963 to
ambush Tadia. Gerardo was armed with a deadly weapon that could be employed at a distance
without exposing himself to any immediate retaliatory act of the victim. He commenced the
assault by firing at Tadia. Then, when Tadia fell down the cliff, Gerardo maliciously induced or
instructed Francisco to continue the assault by stabbing the fallen Tadia. Francisco obeyed that
injunction by inflicting five stab wounds on the defenseless victim. These circumstances reveal
that the brothers acted in concert, impelled by their common design to kill Tadia. Their liability for
the killing is collective, not individual or separate.
The appellants' defenses are untenable in their transparent flimsiness and fabricated character. It
results that the strong, clear and convincing evidence of the prosecution on the felonious killing
perpetrated by the appellants may be regarded as conclusive. Their guilt has been established
beyond reasonable doubt.
The crime committed by the appellants is murder qualified by treachery as alleged in the
information. There was treachery (alevosia) because the brothers made a deliberate surprise or
unexpected assault on Tadia. They literally ambushed him. They waited for him on the cliff, a high
ground which rendered it difficult for him to flee or maneuver in his defense. Tadia was shot
sidewise while he was ascending the hill or cliff burdened by his catopis or food basket. That was
another circumstance which handicapped him in resisting the assault. The initial attack was
successful. Tadia fell and rolled down the cliff and landed near the creek below. In that helpless
state, he was ruthlessly stabbed by Francisco Diaz.
The appellants resorted to means of execution which directly and specially insured the killing
without any risk to themselves arising from any defense which the victim could have made.
Actually, he was not able to make any defense, unarmed and attacked unaware as he was. The
treacherous mode of attack is incontrovertible (Par. 16, Art. 14 and Art. 248, Revised Penal Code).
The attack was also attended with abuse of superiority. Two armed young men unexpectedly
assaulted an unarmed sexagenarian. However, abuse of superior strength is merged with treachery.
The circumstance of old age cannot be considered aggravating. There was no evidence that the
accused deliberately intended to offend or insult the age of the victim. That circumstance may be
absorbed in treachery (People vs. Gervacio, L-21565, August 30, 1968, 24 SCRA 960; People vs.
Mangsant, 65 Phil. 548; People vs. Limaco, 88 Phil. 35, 44).
The trial court did not make any finding as to the degree of instruction of the offenders. Hence, on
appeal, that alternative circumstance cannot be considered in fixing the penalty on the appellants
(People vs. Casillar, L-28132, November 25, 1969, 30 SCRA 352, 358).
As to Francisco Diaz, evident premeditation should be appreciated. It should be recalled that the
embracing incident was reported by Tadia to the barrio lieutenant after two o'clock in the
afternoon of September 4, 1963. That functionary advised Tadia to file a complaint with the
authorities in the town of Sta. Margarita. It may reasonably be assumed that Francisco Diaz
became aware that same afternoon that Tadia, who was his neighbor, was going to the poblacion to
lodge a complaint against him. That would explain why early in the morning of the next day,
September 5th, at about seven o'clock, he and his brother were already in the hill or cliff waiting
for Tadia who was on his way to town. The trial court said:
Francisco having been boloed on the head, he and his younger brother must have decided to, and
thus conspired, to retaliate. For this purpose they armed themselves. Second, having come to know
that the deceased was going to the poblacion, in company with Remegia Carasos and Anita
Pacaira to file the corresponding complaint against Francisco Diaz for abusing Remegia Carasos,
both accused must have decided and, so deciding must have confabulated, to waylay the deceased
so as to prevent him from pursuing his plan.
Thus, there was a sufficient interval of time, more than one-half day, within which appellant
Francisco Diaz had full opportunity for meditation and reflection and to allow his conscience to
overcome the resolution of his will (vencer las determinaciones de la voluntad) had he desired to
hearken to its warnings (U.S. vs. Gil, 13 Phil. 530, 547).
However, with respect to Gerardo Diaz, premeditacion conocida should not be appreciated.
Obviously, he participated in the assault in order to help his elder brother who exercised some
moral ascendancy over him and who was the one directly affected by the embracing incident
which preceded the killing (People vs. Talok, 65 Phil. 696, 707; Art. 62, Revised Penal Code).
Premeditation, which was alleged in the information as a qualifying circumstance, should be
considered only as generic aggravating circumstance with respect to Francisco Diaz since
treachery has already been used to qualify the killing as murder (See People vs. Ubia, 97 Phil.
515, 535). In his case, it is offset by the mitigating circumstance of voluntary surrender to the
authorities.
The penalty for murder, which is reclusion temporal maximum to death, should be imposed in its
medium period on Francisco Diaz. He should be sentenced to reclusion perpetua (Arts. 64[4] and
248, Revised Penal Code).
With respect to Gerardo Diaz, as no generic aggravating and mitigating circumstances can be
considered in his case, he was properly sentenced by the trial court to reclusion perpetua (Arts.
64[1] and 248, Revised Penal Code).
The indemnity which the appellants should pay to the heirs of Quintin Tadia should be raised to
twelve thousand pesos (P12,000).
The ironical twist in this case is that an old man paid with life for his attempt to abide by the law,
that is, to vindicate his granddaughter's honor through lawful means. He lost his life because the
appellants chose to take the law into their own hands. For such flagitious lawlessness, full and
condign retributory punishment should be meted.
Accordingly, the judgment of the trial court should be modified. Francisco Diaz is sentenced to
reclusion perpetua with its accessory penalties. The appellants are ordered to pay solidarily to the
heirs of Quintin Tadia the sum of P12,000 as indemnity (Art. 110, Revised Penal Code). In other
respects, the trial court's judgment is affirmed with costs against the appellants.
The benefits of article 29 of the Revised Penal Code, regarding preventive imprisonment, may be
extended to the appellants if the conditions laid down in Republic Act No. 6127 are satisfied. So
ordered.
Zaldivar (Chairman), Fernando, Barredo, Antonio and Fernandez, JJ., concur.1wph1.t
EN BANC
[G.R. Nos. 135051-52. December 14, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLARITO ARIZOBAL (at large), ERLY
LIGNES and TWO (2) JOHN DOES, accused-appellants.
DECISION
PER CURIAM:
Man in his inordinate pursuit of lucre oft equates human life with mere chattels and plunges
himself into the bottomless pit of his own folly. He is thus driven to plunder and kill, crimes which
are most reprehensible and ignominious as the criminal apparently leans towards material gains
than to the inestimable value of human life. Clarito Arizobal and Erly Lignes come to us to assert
and prove, if they must, that they are not cast of that mold.
The factual backdrop: On 12 August 1994 two (2) separate Informations were filed before the
Regional Trial Court of Cataingnan, Masbate, charging Clarito Arizobal, Erly Lignes, Rogelio
Gemino and two (2) John Does with Robbery in Band with Homicide for robbing and slaying
Laurencio Gimenez[1], Original Records.1 and his son Jimmy Gimenez.[2]
After arraignment, the two (2) cases were tried jointly. However, on 14 May 1997, upon motion of
accused Rogelio Gimeno, without objection from the prosecution, the two (2) Informations were
dismissed as against him for lack of evidence. But the same cases remained as against accused
Erly Lignes and Clarito Arizobal. Only accused Lignes appeared at the trial until its termination as
Arizobal escaped from detention and had to be tried in absentia.[3] The two (2) John Does were
never apprehended as they were not sufficiently identified.
The prosecution presented, among others, Clementina Gimenez, wife of victim Laurencio
Gimenez. She testified that on 24 March 1994 she together with her husband Laurencio Gimenez
and a grandchild were sound asleep in their house in Tuybo, Cataingan, Masbate. At around 9:30
in the evening, Laurencio roused her from sleep and told her to open the door because there were
persons outside the house. Since it was pitch-dark she lit a kerosene lamp and stood up to open the
door. She was suddenly confronted by three (3) armed men pointing their guns at her. She
recognized two (2) of them as Clarito Arizobal and Erly Lignes but failed to recognize the third
person who was wearing a maskara. She readily identified Clarito because she used to pass by his
house in San Rafael while Erly was also a familiar face as he was a regular habitue of the flea
market.
According to Clementina, Clarito asked her husband, "Tay, where is your gun." But she promptly
interjected, "We have no gun, not even a bolo. If you want, you can look around for it."[4] While
the man in maskara stood guard at the door, Clarito and Lignes barged into the master's bedroom
and forcibly opened the aparador. The terrified couple could not raise a finger in protest but had to
leave their fate to the whims of their assailants. The intruders ransacked their cabinet and scattered
everything on the floor until they found P8,000.00 among sheets of paper. Before leaving with
their loot they ordered Laurencio to go with them to Jimmy's house because "we have something
to talk about."[5] Against his will, Laurencio went with them. Clementina recalled that shortly
after the group left she heard a volley of shots. Her grandchild, as if sensing what befell her
grandfather, could only mutter in fear, "Lolo is already dead!"
Erlinda Gimenez, wife of Jimmy Gimenez, narrated that on 24 March 1994, after she and her son
had taken supper, her husband Jimmy with one Francisco Gimenez arrived. Jimmy informed
Erlinda that they had already bought a carabao. After he handed her the certificate of large cattle,
and while he was in the process of skinning a chicken for their supper, three (3) men suddenly
appeared and ordered them to lie face down. One of them pushed her to the ground while the
others tied Francisco and Jimmy as they whipped the latter with an armalite rifle. She noticed one
of them wearing a mask, another a hat, and still another, a bonnet.[6]
Realizing the utter helplessness of their victims, the robbers took the liberty of consuming the food
and cigarettes Erlinda was selling in her sari-sari store. Finding no softdrinks to complete their
snack, two (2) of the intruders ordered Erlinda to buy coke for them at the neighboring store. But
they warned her not to make any noise, much less alert the vendor. When they returned to the
house of Jimmy, the robbers proceeded to ransack the household in search for valuables. They
took around P1,000.00 from her sari-sari store and told them to produce P100,000.00 in exchange
for Jimmy's life. Since the couple could not produce such a big amount in so short a time, Erlinda
offered to give their certificate of large cattle. The culprits however would not fall for the ruse and
threw the document back to her. Three (3) masked men then dragged Jimmy outside the house and
together with Laurencio brought them some fifty (50) meters away while leaving behind Clarito
Arizobal and Erly Lignes to guard Francisco and Erlinda's son. Moments later she heard a burst of
gunfire which reverberated through the stillness of the night.
When the masked men returned to Jimmy's house, one of them informed Erlinda that her husband
and father-in-law had been killed for trying to escape. Upon hearing this, Erlinda, as if the heavens
had fallen on her, slowly lost consciousness.
The post-mortem examination report prepared by Dr. Allen Ching showed that Jimmy Gimenez
sustained injuries: (a) a gunshot wound located at the victim's zygomatic area (right side near the
ear) which may have caused brain hemorrhage; (b) a non-serious gunshot wound at the upper back
right side (armpit area); (c) a wound located at the middle side of the trunk - considered as exit of
wound No. 2; (d) gunshot wound at the right forearm; and, (e) a wound considered as a
complication of the trajectory point of wound No. 4 that caused the fracturing of a bone and exited
as lacerated bone at the posterior.[7]
The medico-legal examination conducted on Laurencio Gimenez also showed: (a) a chest wound
penetrating the pericardium; (b) gunshot wound at the right thigh exiting at the lumbar area, back;
(c) gunshot wound at the left thigh below the knee; and, (d) cause of death was respiratory arrest
secondary to gunshot wounds.[8]
Erly Lignes who testified in his defense explained that on 24 March 1994 at around 9:30 in the
evening he was at the house of a neighbor, one Noli Hermosa, attending a house blessing in San
Pedro, Cataingan, Masbate. He helped as cook and food server. The occasion was attended by
around twenty (20) well-wishers who feasted on fried chicken and tuba. In fact, two (2) of his
friends, Andres Lapay and Alberto Senelong, were among the group of drinkers. The celebration
finally ended at 1:00 o'clock in the morning. Early that morning he went home, which was only
about a hundred meters away.[9]
Erly Lignes also presented Andres Lapay who confirmed his defense of alibi. Andres recounted
that at 9:30 in the evening of 24 March 1994 he was at the house of Noli Hermosa for the latter's
house blessing. There he saw Erly in the kitchen preparing food and drinks for the visitors. He
also attended to Andres' group whenever they needed additional food and tuba. According to
witness Andres, he was certain that from the time of his arrival at 7:00 o'clock in the evening to
11:00 o'clock Erly never went out of the house of Hermosa. When asked whether he knew where
Tuybo was, Andres answered in the affirmative. He also clarified that it would take a person about
one and a-half (1-) hours by foot and about one hour (1) by horseback to travel from San Pedro to
Tuybo.
On 30 March 1994 Erly Lignes was arrested in the house of Noli Hermosa and then detained at the
Cataingan Municipal Jail. Erlinda Gimenez, accompanied by three (3) policemen, later went to the
municipal jail and pointed to Clarito Arizobal as one of the suspects in the robbing and killing of
Laurencio and Jimmy Gimenez. Erly insisted that he was not implicated by Erlinda as a suspect in
the crime.
But the trial court gave full credence to the testimony of the prosecution witnesses and rejected the
alibi of accused-appellant Erly Lignes. On 7 July 1998 the court found both accused Clarito
Arizobal and Erly Lignes guilty of robbery with homicide, sentenced them to suffer the supreme
penalty of Death and to indemnify the legal heirs of Laurencio Gimenez P50,000.00 for his death
and P20,000.00 for moral damages, and the legal heirs of Jimmy Gimenez P50,000.00 also for his
death and P20,000.00 for moral damages, plus P30,000.00 for exemplary damages.[10] Their
cases are now before us on automatic review in view of the penalty imposed.
As the lower court explained -
x x x x There is direct relation and intimate connection between the robbery and the killing. The
accused were positively identified as perpetrators of the crime by witnesses Clementina Gimenez
and Erlinda Gimenez who have no motive to falsely testify x x x x Inasmuch as no improper
motive have (sic) been ascribed to prosecution witnesses and no shadow of evidence appears on
record to blacken their credibility, their testimony is worthy of full faith and credit x x x x[11]
Going to the denial and alibi interposed by accused Erly Lignes that he was at San Pedro,
Cataingnan, Masbate, helping as cook and food server of his neighbor Noli Hermosa during a
house blessing at the time of the robbing and killing and his belief that he was not identified (Exh.
"2") by witnesses (especially Erlinda Gimenez), and that he did not know Clarito Arizobal, the
same cannot be given any credence in the face of the testimony of Clementina Gimenez and
Erlinda Gimenez positively identifying him (Erly Lignes) and his co-accused Clarito Arizobal as
the culprits x x x x The place of the crime is only about six kilometers and more or less one and a
half hour travel by foot from the place where the accused Erly Lignes was at the time of the
commission of the crime.
The robbery with killing was aggravated: 1) By a band because the malefactors were more than
three armed robbers acting together; 2) With treachery because the robbers tied the hand of the
victims before killing them; 3) By nighttime (nocturnity) because the accused took advantage of
the night; and, 4) By dwelling because the robbery is (sic) committed with violence against or
intimidation of persons x x x and the commission of the crime begun in the dwelling x x x x[12]
Accused-appellant Erly Lignes attempted to discredit the testimonies of the prosecution witnesses
by underscoring their alleged inconsistent, conflicting and incredible statements. He pointed out
that: (a) Clementina testified on direct examination that she saw Erly Lignes in the flea market
four (4) times, but on cross-examination she averred that she saw the accused at the flea market in
only three (3) occasions; (b) she stated that three (3) persons entered their house and recognized
Arizobal and Lignes because they lighted a kerosene lamp and that she did not recognize the third
person because he was wearing a mask thus implying that Arizobal and Lignes were not wearing
masks, in utter disregard of the risk of being identified; (c) she failed to witness the actual killing
when she stated in her testimony that she came to know of it only the following morning after she
was informed by a neighbor thus implying that accused-appellant Erly Lignes was not positively
identified as the killer of the two (2) victims; and, (d) Erlinda Gimenez stated that three (3)
robbers were not wearing masks while two (2) were wearing masks but later contradicted herself
when she stated that three (3) of the masked robbers executed her husband and father-in-law.[13]
In essence, the issues raised are factual and involve the credibility of the witnesses. It is
doctrinally settled that in the absence of any showing that the trial court's calibration of factual
issues, particularly on the matter of credibility, is flawed this Court is bound by its assessment.
The rationale is the presumption that the trial court is in a better position to decide the question,
having heard the witnesses and observed their deportment and manner of testifying during the
trial.[14] We find no plausible reason to deviate therefrom.
Admittedly, the prosecution witnesses did not give a consistent account of the whole gut-
wrenching episode, particularly on the matter of the number of times Clementina allegedly saw
the accused-appellant at the flea market; the exact number of masked robbers and other minor
details. These lapses however are not so serious as to warrant the reversal of the verdict of
conviction of accused-appellant and his co-accused who, as the record shows, were categorically
identified as two (2) of the perpetrators of the crime.
Accused-appellant Erly Lignes asserts that the failure of Clementina Gimenez to actually witness
the killing of her son and her husband is adequate proof that she failed to identify him as the killer.
We do not agree. Accused-appellant seems to have overlooked the significance of conspiracy, as a
rule for collective criminal liability, where it is not necessary to show that all the conspirators
actually hit and killed the victim; what is important is that all participants performed specific acts
with such closeness and coordination as unmistakably to indicate a common purpose or design in
bringing about the death of the victim.[15] The fact that accused-appellant conspired in the
commission of the crime charged was sufficiently and convincingly shown by his active
participation in ransacking the belongings of the two (2) Gimenez families, tying and holding
Francisco and Erlinda's son immobile while the others led the two (2) hapless victims to the
threshold of their obliteration.
Alibi, as it has been repeatedly held, is one of the weakest defenses as it is easy to concoct
although difficult to prove. In the face of positive identification by credible prosecution witnesses,
accused-appellant's defense of alibi must necessarily crumble. For alibi to be believed, credible
and tangible proof of physical impossibility for the accused to be at the scene of the crime is
indispensable.[16]
The trial court is correct in appreciating dwelling as an aggravating circumstance. Generally,
dwelling is considered inherent in the crimes which can only be committed in the abode of the
victim, such as trespass to dwelling and robbery in an inhabited place. However, in robbery with
homicide the authors thereof can commit the heinous crime without transgressing the sanctity of
the victim's domicile.[17] In the case at bar, the robbers demonstrated an impudent disregard of
the inviolability of the victims' abode when they forced their way in, looted their houses,
intimidated and coerced their inhabitants into submission, disabled Laurencio and Jimmy by tying
their hands before dragging them out of the house to be killed.
But treachery was incorrectly considered by the trial court. The accused stand charged with, tried
and convicted of robbery with homicide. This special complex crime is primarily classified in this
jurisdiction as a crime against property, and not against persons, homicide being merely an
incident of robbery with the latter being the main purpose and object of the criminals. As such,
treachery cannot be validly appreciated as an aggravating circumstance under Art. 14 of The
Revised Penal Code.[18] This is completely a reversal of the previous jurisprudence on the matter
decided in a litany of cases before People v. Bariquit.[19]
While it appears that at least five (5) malefactors took part in the commission of the crime, the
evidence on record does not disclose that "more than three" persons were armed, and robbery in
"band" means "more than three armed malefactors united in the commission of robbery." Nowhere
in the records can we gather that more than three (3) of the robbers were armed. Hence, "band"
cannnot be aggravating where no proof is adduced that at least four (4) of the five (5) perpetrators
involved in this case were armed. In this regard, we are quoting pertinent portions of Clementina
Gimenez's testimony -
Q: While you were in your house do you still remember of any unusual incident that happened?
A: Yes, sir.
Q: What was that incident about?
A: Armed persons entered our house.
Q: How many?
A: Three (3).
Q: You said that these 3 persons were armed, will you tell this Honorable Court the kind of
weapon or arms they were bringing with them at that time?
A: One person carrying a long firearm.
Q: How about the other two?

A: One person standing at the door carrying a long firearm and the two went upstairs.
Q: Were they carrying weapons?
A: They have (sic) both of them were carrying short firearms.[20]
On cross examination she further clarified -
Q: Where were you when you saw that the two accused Clarito Arizobal and Erly Lignes got the
money?
A: At the sala.
Q: When they ransacked your aparador you did not object?
A: They let us sit and warned us not to move.
Q: But you have not seen them armed with any firearm, is that correct?
A: They have.
Q: Who were armed with firearms?
A: Clarito Arizobal and Erly Lignes.
Q: What kind of firearm?
A: Short arm.
Q: And where was the third person who was wearing mask at the time these two accused Erly
Lignes and Clarito Arizobal ransacked your aparador and got the money?
A: At the door of our house.
Q: What was he doing?
A: On guard.
Q: Was he armed?
A: Bringing a long gun, masked.[21]
For her part, Erlinda Gimenez testified -

Q: Did you see who killed your husband?
A: My husband was brought towards a distance about 50 meters because it could be seen from
where I was and then I heard a burst of firearm thereafter the one who brought him told me that he
ran so that they have (sic) to kill him.
Q: Who told you?
A: The one wearing mask.
Q: Where were accused Clarito Arizobal and Erly Lignes at that time?
A: The two (2) took guard on Boboy Gimenez (referring to Francisco) and my son.
Q: Were they armed?
A: Yes sir, short gun, sir.
Q: When your husband was brought by three of these five (5) persons, your son and Francisco
Gimenez were left behind?
A: Yes sir, because they were tied.[22]
We likewise hold that the aggravating circumstance of nighttime did not attend the commission of
the crime. The fact that the offense was committed at 9:30 in the evening does not suffice to
sustain nocturnidad for, by itself, nighttime is not an aggavating circumstance.[23] To be properly
so considered, it must be shown that nocturnidad was deliberately and intentionally sought by
accused-appellants to help them realize their evil intentions.[24] Nowhere can we infer from the
records that the malefactors sought the cover of darkness to facilitate the accomplishment of their
devious design. On the contrary, the locus criminis was well lighted and nighttime was merely an
incidental element to the whole drama.
First. The houses of the victims were adequately lighted by kerosene lamps when the robbers
entered and went about their looting spree. In People v. Pallarco[25] this Court clarified this
modifying circumstance thus -
Nor can the aggravating circumstance of nighttime be appreciated, for the prosecution failed to
demonstrate (a) that the malefactor particularly sought or took advantage of the darkness to
commit the offense, or (b) that nighttime facilitated the commission of the crime. In any event, the
prosecution presented no evidence to establish the fact that nocturnidad attended the killing.
Nighttime cannot be considered if it is shown that the place was adequately lighted. In this case, it
was established that the place was sufficiently illuminated by a kerosene lamp.
Second. The robbers, particularly referring to accused-appellant and his co-accused, lingered in
the locus criminis and even conversed with their intended victims for an appreciable period of
time inside the well-lit houses. As Erlinda Gimenez testified, the place where the victims were
gunned down was adequately illuminated by the moonlight, although for undisclosed reasons she
did not see the actual shooting.[26]
All these taken together belie the assumption that the culprits took advantage of the intrinsic
impunity afforded by the cover of darkness and made the same as an ally to accomplish their
nefarious plan. Nocturnity lures those who crave for blood to yield to their baser impulses with the
false courage borne out of the belief that their identity would not be brought in the open. We do
not discern any such intention in this case.
We also note with approval the view of the trial court that the offenders did not commit two (2)
separate counts of robbery with homicide but only a delito continuado, as the ransacking of the
two (2) houses and the killing of the victims were not entirely disconnected and distinct acts of
depredation. They arose from a single criminal impulse and intent, "there being unity of purpose
and of right violated."[27]
As to actual damages, it was proved that the robbers took the amount of P8,000.00 from the family
of the deceased Laurencio Gimenez and P1,000.00 from that of Jimmy Gimenez. Their legal heirs
must therefore be indemnified for these losses. However, the award of the trial court of P20,00.00
for moral damages and P30,000.00 for exemplary damages must be modified to P50,000.00 and
P20,000.00 for moral damages and exemplary damages, respectively for the legal heirs of each
victim.
The trial court correctly found accused-appellant and his co-accused Clarito Arizobal guilty of the
crime of robbery with homicide as defined in Art. 294, par. (1), of The Revised Penal Code. The
prosecution has established beyond any scintilla of doubt through the prosecution witnesses that
Erly Lignes in conspiracy with Clarito Arizobal and three (3) other unidentified persons used
violence and intimidation against the members of the two (2) Gimenez families in carrying out the
robbery and on the occasion thereof killed Laurencio and Jimmy Gimenez.
The special complex crime of robbery with homicide carries with it the penalty of reclusion
perpetua to death. In conformity with Art. 63, par. (1), of The Revised Penal Code, when the crime
is attended by an aggravating circumstance with no circumstance mitigating it, the higher penalty
shall be imposed.
Four (4) members of the Court are steadfast in their adherence to the view that RA 7659 is
unconstitutional insofar as it prescribes the death penalty. However, they bow to the majority
opinion that the aforesaid law is constitutional and, therefore, the penalty prescribed thereunder
has to be imposed.
WHEREFORE, the Decision of the Regional Trial Court of Cataingan, Masbate, finding accused-
appellant ERLY LIGNES and accused CLARITO ARIZOBAL GUILTY of Robbery with
Homicide and imposing upon both of them the penalty of DEATH, is AFFIRMED with the
MODIFICATION that accused-appellant ERLY LIGNES and his co-accused CLARITO
ARIZOBAL (who is still at large) are ordered in addition: (a) to pay jointly and solidarily the legal
heirs of Laurencio Gimenez and Jimmy Gimenez P50,000.00 for civil indemnity, another
P50,000.00 for moral damages, and P20,000.00 for exemplary damages, for each set of heirs; and,
(b) to pay jointly and solidarily the legal heirs of Laurencio Gimenez P8,000.00 and those of
Jimmy Gimenez P1,000.00 representing their respective actual damages.
In accordance with Sec. 25 of RA 7659 amending Art. 83 of The Revised Penal Code, upon the
finality of this Decision, let the records of the case be forwarded to His Excellency, the President
of the Philippines, for the possible exercise of his pardoning power. Costs against both accused.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
[1] See Information in Crim. Case No.842, p.
[2] See Information in Crim. Case No. 841, p. 1, id.
[3] Id., p. 83.
[4] TSN, 25 October 1995, p. 20.
[5] Id., p. 23.
[6] TSN, 4 March 1997, p. 5.
[7] TSN, 25 October 1995, p. 4.
[8] Id., pp. 10-11.
[9] TSN, 18 March 1998, pp. 3-23.
[10] Decision penned by Judge Henry B. Basilla, RTC-Br. 49, Cataingan, Masbate.
[11] Rollo, p. 16.
[12] Id., p. 19.
[13] Id., pp. 59-63.
[14] People v. Nang, G.R. No. 107799, 15 April 1998, 289 SCRA 16.
[15] People v. Dinglasan, G.R. No. 101312, 28 January 1997, 267 SCRA 26.
[16] People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250 SCRA 14.
[17] People v. Pareja, G.R. No. 88043, 9 December 1996, 265 SCRA 429; People v,
Faliciano,G.R. No. 15 May 1996, 256 SCRA 706.
[18] People v. Bariquit, G.R. No. 122733, 2 October 2000.
[19] See Note 18.
[20] TSN, 25 October 1995, p. 16.
[21] TSN, 10 September 1996, p. 32.
[22] TSN, 4 March 1997, p. 11.
[23] People v. Bello, G.R. No. 109148, 4 December 1998, 299 SCRA 654.
[24] People v. Caisip, G.R. No. 119757, 21 May 1998, 290 SCRA 451.
[25] G.R. No. 119971, 26 March 1998, 288 SCRA 151.
[26] TSN, 4 March 1997, p. 17.
[27] Rollo, p. 21.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-40330 November 20, 1978
vs.
AMADO DANIEL alias "AMADO ATO", accused-appellant.
Eraulio D. Yaranon for appellant.
Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor
Rosalio A. de Leon for appellee.
MUOZ PALMA, J:
This case originated from the Court of First Instance of Baguio City by virtue of a complaint filed
by 13-year old Margarita Paleng accusing Amado Daniel alias "Amado Ato" of rape alleged to
have been committed as follows:
That on or about the 20th day of September, 1965, in the City of Baguio, Philippines, and within
the jurisdiction of this Honorable Court, the herein accused, armed with a sharp instrument and by
means of force and intimidation, did then and there willfully, unlawfully and feloniously have
carnal knowledge of the undersignedcomplaint, against her will, and in her own room situated at
No. 25 Interior, Pinsao, Guisad, Baguio City.
That in the commission of the crime, the aggravating circumstance that it was committed in the
dwelling of the offended party, the latter not having givenprovocation for it, is present. (p. 1, CFI
record)
The trial court, presided then by Hon. Feliciano Belmonte, after due trial rendered its decision on
May 30, 1966, finding the accused guilty and sentencing him to suffer "not more than TWELVE
(12) YEARS and ONE (1) DAY of reclusion temporal and not less than SIX (6) YEARS and ONE
(1) DAY of prision mayor, and to pay the costs." 1
His motion for reconsideration and new trial having been denied, accused filed a notice of appeal;
forthwith the case was forwarded to the Court of Appeals.
On September 23, 1974, the Court of Appeals through its Tenth Division rendered a decision the
dispositive portion of which follows:
PREMISES CONSIDERED, We find that the guilt of the accused Amado Daniel has been proven
beyond reasonable doubt, and he should accordingly suffer the penalty for the crime herein
charged.
We find, however, that the sentence imposed the accused in the judgment appealed from is not in
accordance with law.
Republic Act No. 4111, which took effect on June 20, 1964, amended Article 335 of the Revised
Penal Code, providing that
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.
Under Section 17 of Chapter 11 of the Judiciary Act of 1948 (Republic Act No. 296, as amended)
The Supreme Court shall have exclusive jurisdiction to review, revise, reverse, modify or affirm
on appeal, as the law or rules of court may provide, final judgments and decrees of inferior courts
as herein provided, in
(1) All criminal cases involving offenses for which the penalty imposed is death or life
imprisonment; ...
WHEREFORE, We hereby certify this case to the Supreme Court for appropriate further
proceedings pursuant to law. 2
By virtue of the foregoing decision of the Court of Appeals the case was certified to this Court and
in a Resolution of March 6, 1975, the same was ordered docketed. 3
Preliminary question
The certification of the case to Us poses a preliminary question which strikes at the very root of a
long standing practice and procedure evoked for the last forty years or so since the creation of the
Court of Appeals. 4
Is the Supreme Court with jurisdiction to act on an appeal in a criminal case where the offense is
punishable by reclusion perpetua or death certified to it by the Court of Appeals with findings of
facts and of the guilt of the accused, but without imposing the penalty of reclusion perpetua or
death on the appellant pursuant to Rule 124, Section 12, paragraph 2, of the Rules of Court?5
Mr. Chief Justice Fred Ruiz Castro, joined by other ,Justices, expresses the view that for this Court
to acquire jurisdiction over the appeal, the decision before Us must have imposed on the appellant
the penalty either of reclusion perpetua or death as the facts warranted.
The rest of the Justices together with the writer of this Opinion, believe otherwise and hold the
view that the dispositive portion of the decision as written and rendered is in accordance with the
Constitution and the law, and vests jurisdiction on the Court to act on the appeal.
A. In People v. Ramos, decided on November 28, 1947, 6 a case was certified to this Court by the
Court of Appeals without findings of facts and simply on the ground that it was "on the opinion
that the penalty that should be imposed ill this case is reclusion perpetua, as recommended by the
Solicitor-General, and not reclusion temporal, as imposed by tile lower court." The question arose
as to the proper procedure to be followed by the appellate court in certifying cases to this Court
under Section 145-K of the Revised Administrative Code as amended by Republic Act No. 52
which read:
Whenever in any criminal cases submitted to a division the said division should be of the opinion
that the penalty of death or life imprisonment should be imposed, the said Court shall refrain from
entering judgment thereon and shall forthwith certify the case to the Supreme Court for final
determination, as if the case had been brought before it on appeal.
In disposing of the issue several matters came up which evoked different, and We may say, strong
reactions from the Justices then composing the Court, but for brevity we shall not dwell on them.
Simply stated, it is was ruled that the Court of Appeals was duty bound to make its findings of
facts to support its opinion that the penalty to the imposed upon the appellant was either life
imprisonment or death so as to bring the case within the jurisdiction of this Court.
From the Resolution written for the Court by then Mr. Chief Justice Manuel V. Moran, We quoted
the following pertinent portions:
The jurisdiction of this Court predicated upon the opinion of the Court of Appeals, as provided in
the above-quoted provisions of the law, must of necessity defend upon the correctness of that opi
nion There is nothing in the law precluding this Court from exercising ing its authority to pass
upon such question which concerns its own jurisdiction. And in order that this Court may exercise
its power of review the Court of appeals is bound to make in its order f certification such findings
of facts as are necessary to support its conclusion that either life imprisonment or death is the
penalty to be imposed. This is indeed covered by Rule 52, section 3, which provides th where a
court to which an appeal has been taken has no appellate jurisdiction over lic case and it certifies
the same to the proper court, it must do so "with a specific and clear statement of grounds
therefor." the requirement of with and specific grounds is precisely a device to prevent erroneous
transmissions of jurisdiction from a lower to a superior court.
Furthermore, the words "shall refrain from entering judgment thereon" appearing in the provision
above quoted, are sufficient indication that the Court of Appeals, at the time of certifying the case
to this Court, had already examined the evidence and was ready to render judgment on the merits,
but having found from the facts established by proof that the penalty to be imposed is either death
or life imprisonment, instead of entering judgment thereon , it certifies the case to the Supreme
Court for final determination. Since the Certification is the only ground for determining our
jurisdiction, it must contain not only conclusions of law but also findings of fact, the latter being
more important than the former for they supply the real basis for determining jurisdiction ...
The instant case cannot be compared with cases coming directly from a Court of First Instance
wherein either life imprisonment or death penalty is imposed, for in such cases, if we assume
jurisdiction even where the judgment appears to be erroneous on its face, it is because the Court of
First Instance has already exhausted its jurisdiction by rendering judgment on the merits
containing both findings of fact and conclusions of law, and under such circumstance it is more
practical for the administration of the law that this Court should exercise its appellate jurisdiction
by examining the evidence and correcting all errors both of fact and of law that might have been
committed by the trial court. But here, the Court of Appeals is refraining from rendering judgment
on the merits and is refusing to complete the exercise of appellate jurisdiction because it believes
that such jurisdiction belongs to the Supreme Court and thus, it proceeds to transfer the case to this
Court. lt is in that transfer that we believe we may intervene in order to prevent an erroneous
transfer,
xxx xxx xxx
Section 145-K of the Administrative Code is merely a method designed to make effective the
appellate jurisdiction of both the Court of Appeals and this Court, as defined by law. According to
the law of jurisdiction (section 138, Revised Administrative Code, as amended by Commonwealth
Acts Nos. 3 and 259), offenses, for which the penalty imposed is death or life imprisonment,
including offenses arising from the same occurrence or committed on the same occasion, come
within the appellate jurisdiction of the Supreme Court, and the remaining offenses fall within the
appellate jurisdiction of the Court of Appeals ...
We are of the opinion and so hold, therefore, that in a case like this, the Court of Appeals, in
certifying it to this Court, must state its findings of fact necessary to support its conclusion that the
penalty to be imposed is either life imprisonment or death. While this Court will not review the
findings of fact, it will pass upon the correctness of the legal conclusions derived therefrom. And
if this Court finds the conclusions to be correct, it will assume jurisdiction. If it finds them to be
wrong, the case will be returned to the Court of Appeals. (pp. 613-616, supra, emphasis supplied)
In Ramos, the case was accepted because the Court considered that there was substantial
compliance with the law as the order of certification made reference to the opinion and
recommendation of the Solicitor General whose brief contained sufficient findings of fact to
warrant the conclusion that life imprisonment should be imposed upon the appellant. Justices
Paras, Feria, Pablo, Hilado and Briones concurred in the Resolution.
Justice Gregorio Perfecto in a separate opinion concurred with the principle that the Court of
Appeals is bound to make its findings of fact and study the evidence so as to determine whether
the appellant is guilty or not, but dissented from that portion of the Resolution which accepted the
case as he was of the opinion that the case should have been remanded to the Court of Appeals.7
Justice Pedro Tuason wrote a separate opinion and dissented from the majority insofar as it held
that it was necessary for the Court of Appeals or a division thereof to state the reasons for its
opinion that death penalty or life imprisonment should be imposed. He particularly dissented from
statements that if this Court found the conclusions of the Court of Appeals to be wrong, the case
should be returned to the Court of Appeals for further proceedings. According to Justice Tuason
when a case is certified to this Court it is placed, by force of the Court of Appeals' opinion, within
the jurisdiction of the Supreme Court for the latter to decide the appeal on the merits; findings of
fact of the Court of Appeals are neither essential nor necessary. Justice Tuason was joined in his
dissent by Justice Cesar Bengzon who later became Chief Justice of this Court and Justice Sabino
Padilla.8
B. The theory is now advanced that We go one step further than that ruled in Ramos that is,
for the Court of Appeals not only to make its findings of fact and finding of guilt, but also to
impose the penalty either of reclusion perpetua or death as the facts warrant in order that We may
exercise Our appellate jurisdiction.
We believe that such a judicial ruling will be violence to the letter and spirit of the law which
confers on the Supreme Court the exclusive prerogative to review on appeal and impose the
corresponding penalty in criminal cases where the offense is punishable by reclusion perpetua or
death.
Both the 1935 and the 1973 Constitutions vest upon the Supreme Court appellate jurisdiction, in
"(A)ll criminal cases in which the penalty imposed is death or life imprisonment."9 This
jurisdiction is constitutional: the Supreme Court ma not be deprived thereof by, Congress then,
now the National Assembly. 10
Section 17 of the Judiciary Act 1948 as amended in turn provides that the foregoing appellate
jurisdiction of the Supreme Court is exclusive.
Basically therefore, the objection to this new theory is one of jurisdiction - the lack of jurisdiction
of the Court of Appeals to impose the penalty of reclusion perpetua or death.
The present controversy springs from the construction given to the second paragraph of Sec. 12,
Rule 124, Rules of Court 11 more particularly to the use of the phrases "should be imposed" and
"shall refrain from entering judgment", viz:
xxx xxx xxx
Whenever in any criminal case submitted to a division the said division should be of the opinion
that the penalty of death or life imprisonment should be imposed, the said court shall refrain from
entering judgment thereon and shall forthwith certify the case to the Supreme Court for final
determination, as if the case had been brought before it on appeal. (Emphasis supplied)
As we construe it, the Rule cited does not charge the appellate court with the duty of imposing the
penalty of reclusion perpetua or death. All that the Rule requires is that should the Court of
Appeals be of the opinion that death or life imprisonment should be imposed, it "shall refrain from
entering judgment thereon ...
The clause "entering judgment" means "rendering judgment". Thus, the Court of Appeals shall
refrain from rendering judgment if and when it is of the opinion that reclusion perpetua or death is
the proper penalty for the crime committed. This can be the only logical interpretation considering
that the Court of Appeals is without jurisdiction to impose the penalties concerned. The phrase
"entering judgment" is not to be equated with an "entry of judgment" as the latter is understood in
Rule 36 in relation to Section 8, Rule 121 and Section 16, Rule 124, Rules of Court. "Entry of
judgment" presupposes a final judgment final in the sense that no appeal was taken from the
decision of the trial or appellate court within the reglementary period. A judgment in a criminal
case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has
been partially or totally satisfied or served, or the defendant has expressly waived in writing his
right to appeal.12 It is only then that there is a judgment which is to be entered or recorded in the
book of entries of judgments. 13
It would be incongruous or absurd to state that Section 12, second paragraph, Rule 124 enjoins the
Court of Appeals from entering judgment" when there is no judgment to be entered .
But then the argument is advanced what is there to be reviewed by the Supreme Court when the
decision being certified contains no penalty or sentence, as distinguished from appeals from the
Court of First Instance where there is a complete judgment to be passed upon. The answer is
simple. Section 12 itself states that the case is for final determination by the Supreme Court as if
the case had been brought before it on appeal. Hence, based on the findings of facts of the
appellate court which as a rule are conclusive and binding on Us, this Court "will pass upon the
correctness of the legal conclusions derived therefrom" (People v. Ramos, supra) and impose the
correct penalty for the offense committed.
We realize that had Section 12, Rule 124 used the phrase shall refrain from rendering judgment "
there would be no cause for any ambiguity. We can only assume that the intent of the Rule was so
clear to the Court when it drafted the Revised Rules of Court that it did not envision a possible
contrary or adverse interpretation or ambiguity in its implementation under the phraseology used.
It is incumbent upon Us to construe the Rule in the spirit and intent it was conceived and in
harmony with pertinent laws and jurisprudence.
On the merits of the appeal
1. Generally in a case of this nature, the evidence of the prosecution consists solely of the
testimony of the offended party. Here We have the declaration of the victim, who at the time of the
incident was a little less than 13 years of age, on the basis of which the trial court found the charge
of rape duly established. The happenings are briefly summarized in the People's brief as follows:
The offended party in this case is Margarita Paleng who was born on November 20, 1952 (p. 3,
t.s.n., Manipon). She is a native of Balangabang Tublay, Mountain Province (pp. 3, 12, Id.) At the
time of the incident in question on September 20, 1965, complainant was temporarily boarding at
a house located at Pinsao Guisad Baguio City, as she was then a first year high school student at
the Baguio Eastern High School (pp. 3, 12, 20, Id.; p. 36, Estigoy).
On September 20, 1965, at about three o'clock in the afternoon, she had just arrived in the City
from Tublay in a Dangwa bus (p. 3, Manipon). Because it was then raining and the bus was parked
several meters away from the bus station, she waited inside the bus (pp. 3, 22, Id.). After about
three minutes of waiting, the accused came and started molesting her by inquiring her name and
getting hold of her bag (pp. 4, 22-24, Id.). But she did not allow him to hold her bag (p. 24, Id.).
She called the attention of the bus driver and the conductor about the actuation of the accused, but
it seemed that the former were also afraid of him (pp. 24-25, Id.).
Despite the rain, she left the bus and went to ride in a jeep parked some 100 meters away (pp. 4,
25, Id.). The accused closely followed her (p. 4, Id.). When the jeep started to go, the accused also
rode and sat beside her (p. 5, Id.).
When the jeep reached Guisad, she alighted on the road but she still had to negotiate a distance of
ten meters (p. 5, Id.). The accused also alighted and again he tried to carry her bag (p. 5, Id.).
Although he was not allowed to carry her bag, her was adamant in following her (p. 5, Id.).
Reaching her boarding house, she opened the door and was about to close it when the accused
dashed in and closed the door behind him (pp. 31-32, Id.). When she entered her room, the
accused went in (p. 7, Id.). He pulled a dagger eight inches long and threatened her: "If you will
talk, 1 will kill you". (p. 7, Id.). Margarita was stunned into silence because of her fear (p. i Id.).
Thereupon, the accused held her hair with his left hand and forced her Lo lie down in bed (p. 7,
Id.) He also placed his left hand with a handkerchief in Margarita's mouth, at the same time
holding the dagger and her neck with his right hand (pp. 7-8, Id.). She was forcibly made to the
down and, at this moment, the accused removed the buttons of his pants (p. 8, Id.). He then put
down the dagger on tile bed (p. 8, Id.). Her attempts to extricate herself from the accused was to
no avail assile was only 4 ft. and 8 inches tall and weighed about 95 to 100 pounds (p. 35, Id.)
while the accused was 5 ft. and 7 inches tall and weighed about 126 pounds (pp. 8, 59, Id.). He
then held his penis (pp. 8. 36, Id.), used his thigh to separate the legs of Margarita (p. 38, Id.).
tried, but failed. to remove her panty (p. 36, Id.). He nonetheless guided his penis and inserted it
inside the vagina of the complainant after prying open the part of her panty covering her private
parts (pp. 9, 36, Id.). Then he succeeded in having carnal knowledge of the offended party (p. 9,
Id.). Margarita lost consciousness. When she recovered, he was already gone (p. 9, Id.).
The following morning, her father came to visit her. She confided to him the terrible misfortune
which befell her (pp. 9-10, Id.). She was immediately brought to the Baguio General Hospital
where she was examined (p. 10, Id.). Then they proceeded to the Police Department. The Chief of
Police accompanied them to the Health Center where she was again examined by Dr. Perfecto O.
Micu who thereafter submitted his medical report (Exh. C; p. 3, rec.; pp. 11, 14-16, Id.). Margarita
and her father gave their respective statements before the police authorities (Exh. B, pp, 5-6, rec.;
p. 11, t.s.n.). She signed her criminal complaint prepared by the Fiscal's Office of Baguio (Exh. A;
p. 1, rec.; p. 11, t.s.n. (pp. 2-4, Brief at p. 83, rollo
The City Medico-Legal Officer, Dr. Perfecto Micu was called to the witness stand and he testified
on the physical examination conducted on the person of Margarita Paleng on September 23, 1965
and his findings as contained in the report were as follows:
1. Hymen-circular-stellate type with healing lacerations at 6:00, 8:00, 9:00 and 11:00 o'clock
positions in the face of a clock.
2. Contusions at the base of the hymen at 3:00 & 9:00 o'clock regions.
3. Vaginal Orifice - tight and hardly admits 2 fingers.
4. Vaginal wall tight and vaginal folds are prominent.
5. Vaginal smear negative for spermatozoa and for gram negative intra or extra-cellular
diplococci. (Exh. "C", p. 3, CFI record)
Dr. Micu concluded that "defloration was recent". He further declared that the condition of the
hymen revealed that Margarita Paleng was a virgin before the incident complained of, and that the
number of lacerations and contusions at the base of the hymen indicated the degree of force
exerted to effect the sexual act. 14
For his defense, appellant claimed that he and Margarita were acquainted with each other since
1963, and there were occasions when they rode together in a bus; that the incident of September
20, 1965 inside the room of Margarita was with the latter's consent, and in fact it was the second
time he had carnal knowledge with her, the first time having occurred inside a shack; that he
promised Margarita that he would marry her, but to his surprise, she filed the instant complaint
against him. 15
2. The issue being one of credibility, We find no cogent reasons for discarding the findings of
facts of the trial court which were sustained by the Court of Appeals after the latter had examined
the evidence as a result of which it certified the case to this Court.
Appellant assails the veracity of the testimony of the complainant. But what possible motive could
a thirteen-year old girl barely in her teens have in fabricating a story that could only bring down
on her and her family shame and humiliation and make her an object of gossip and curiosity
among her classmates and the people of her hometown. It cannot be denied that a public trial
involving a crime of this nature subjects the victim to what can be a harrowing experience of
submitting to a physical examination of her body, an investigation by police authorities,
appearance in court for the hearing where she has to unravel lewd and hideous details of a painful
event which she would prefer to forget and leave it unknown to others. If Margarita did forego all
these and preferred to face the cruel realities of the situation it was due to her simple and natural
instincts of speaking out the truth.
The insinuation that this complaint was filed because appellant had not married the girl although
he promised to marry her, is preposterous. On September 20, 1965, Margarita was only twelve
years and ten months old and was not of marriageable age, hence, marriage was a legal
impossibility. And as regards appellant's testimony that the complaint was instigated by the Chief
of Police of Tublay who was Margarita's uncle, the trial court did not give credit to such a
declaration.
Counsel for appellant stresses that notwithstanding that Margarita had the opportunity to ask for
help or attract the attention of other people before she reached her boarding house, she failed to do
so. According to counsel there were people at the Dangwa station, in the busy streets, in the
market place, in the jeepney parking place where the girl took a jeep to proceed to the boarding
house, and in the neighboring houses the closest of which was about 5 meters away, but no
attempt was ever made by complainant to seek help so as to prevent appellant from molesting her.
16
Appellant's contention presupposes that Margarita was well aware all the time from the moment
she saw the appellate inside the bus that the latter had intentions of abusing or raping her. All that
the appellant did inside the bus was to hold her bag and she caged the attention of the driver and
the conductor to the impertinence of appellant but the two did not do anything about it. 17 And
when Margarita walked from the bus to the jeepney station, although she saw appellant walking
behind her she did not suspect that he was following her. To a question propounded by His Honor
whether she suspected that appellant was following her, Margarita answered: "No sir, I did not
suspect." 18 All along Margarita could not call the attention of the people in the street or shout for
help inasmuch as at that particular moment the appellant was not doing anything against her. And
when Margarita reached the boarding house there were no persons around 19 and in fact she went
straight to her room and it was at that particular moment when appellant barged into the room
before she could close the door. In short, the Poor girl was simply taken by surprise by the forced
entrance of appellant who immediately took out an 8-inch long dagger and said "If you will talk I
will kill you."
Persons can have different reactions to a situation like that some may manifest an aggressive or
violent attitude of confronting a molesting or impertinent fellow while others, like 12-year old
Margarita, may assume a silent. fearful attitude.
Appellant's counsel also claims that Margarita did not offer any resistance to the acts of the
accused at the time the latter was allegedly forcing himself on her as shown by the medical
findings that there were no signs of extra-genital injuries on the girl's body, and no blood stains on
her dress and underwear.
The foregoing arguments are inadequate to weaken and destroy the veracity of Margarita's
straightforward and positive declaration as to how appellant, a 22-year old farmer in the prime of
his manhood, weighing 126 lbs and five feet 21 and six inches tall,20 overpowered her and
succeeded in accomplishing the sexual act despite her resistance. Margarita was less than 13 years
of age, was 4' 8 " in height, and weighed around 95 lbs.21
In a crime of rape, force need not be irresistible; "it need but be present, and so long as it brings
about the desired result, all consideration of whether it was more or less irresistible, is beside the
point. 22
All that is necessary is that the force used by the accused is sufficient for him to consummate his
evil purpose. In U.S. v. Villarosa, 1905, there was a similar situation. A 12 year old girl was
sexually abused in the woods by a man of superior physical strength. In holding the accused
Villarosa guilty of rape the Court held:
It is a doctrine well established by the courts that in order to consider the existence of the crime of
rape it is not necessary that the force employed in accomplishing it be so great or of such character
as could not be resisted; it is only necessary that the force used by the guilty party be sufficient to
consummate the purpose which he had in view. (4 Phil. 434, 437 citing Judgment May 14, 1878,
Supreme Court of Spain. The Villarosa doctrine has been followed in numerous cases involving
the crime of rape and one of the latest is People v. Equec, 1977, per Justice Enrique Fernando, 70
SCRA 665.)
And as stated in People v. Savellano, per Justice Ramon Aquino, the force or violence necessary in
rape is naturally a relative term, depending on the age, size, and strength of the parties and their
relation to each other. 23
Rape is likewise committed when intimidation is used on the victim and the latter submits herself
against her will because of fear for her life and personal safety. In this case of Margarita Paleng,
appellant was armed with a dagger and with it threatened to kill the girl if she would talk or
scream for help. Her fear naturally weakened whatever resistance Margarita could muster at the
time and as a result appellant was able to consummate his coitus on the victim. 24
One last point raised by the able counsel of appellant, Atty. Braulio D. Yaranon, who at the time of
the trial in 1965 was the Vice-Mayor of Baguio City, was that appellant voluntarily submitted to a
lie detector test with the National Bureau of Investigation and the report of the lie detector
examiner is in appellant's favor, that is, the latter was telling the truth on the questions propounded
to him one of which was whether he forced Margarita Paleng into having sexual intercourse with
him and the reply was "No". 25
On this matter We find the trial Judge's observations and conclusions meritorious and We quote
from his decision the following:
As to the N.B.I. lie detector test report, the Court does not put much faith and credit on it. It is well
known that the same is not conclusive. Its efficacy depends upon the time, place and
circumstances when taken and the nature of the subject. If subject is hard and the circumstances,
as in this instant, were not conducive to affect the subject emotionally, the test will fail. The
subject had nothing more to fear because the trial was over. He was not confronted by the victim
or other persons whom he had a reason to fear. Naturally, his reaction to the questions propounded
was normal and unaffected and the apparatus could not detect it. (pp. 172-173, CFI record)
To conclude, the crime committed by the appellant is rape with the use of a deadly weapon with
the aggravating circumstance of having been committed in the dwelling of the offended party.
Although Margarita was merely renting a bedspace in a boarding house, her room constituted for
all intents and purposes a "dwelling" as the term is used in Article 14(3), Revised Penal Code. It is
not necessary, under the law, that the victim owns the place where he lives or dwells. Be he a
lessee, a boarder, or a bed-spacer, the place is his home the sanctity of which the law seeks to
protect and uphold.
Hence, the correct penalty for the crime committed is death pursuant to Article 335 of the Revised
Penal Code as amended. However, for lack of the necessary number of votes, the penalty next
lower in degree is to be applied.
PREMISES CONSIDERED, We affirm the judgment of conviction of Amado Daniel for the crime
of rape as charged, and We sentence him to suffer the penalty of reclusion perpetua and order him
to indemnify Margarita Paleng by way of moral damages in the amount of Twelve Thousand
Pesos (P12,000.00) and pay the costs.
Decision Modified.
SO ORDERED.
Teehankee, J., concurs.
Barredo, Antonio, Concepcion, Jr. and Santos, JJ., concur in the result on the merits.
Castro, C.J., Makasiar, Fernando and Fernandez, JJ., took no part.
Guerrero, J., is on leave.
Separate Opinions
AQUINO, J., concurring:

The phrase shall refrain from entering judgment thereon" found in section 12 of Rule 124 and in
section 34 of the Judiciary Law means that the Court of Appeals should not decide the case. The
Court of Appeals has been certifying to this Court criminal cases, wherein the imposable penalty is
death or reclusion perpetua without rendering any judgment but merely expressing its opinion that
the penalty imposed by the trial court is erroneous and that the imposable penalty is death or
reclusion perpetua. Invariably, this Court accepted those cases and decided the same. This Court's
jurisdiction in criminal cases, as defined in the Constitution, cannot be diminished but it can be
enlarged.
Appealed criminal cases may be divided into three classes: (1) those wherein the lower court
imposed the penalty of death or reclusion perpetua and which are within this Court's exclusive
appellate jurisdiction; (2) criminal cases wherein the trial court imposed reclusion temporal or a
lesser penalty and which fall within the appellate jurisdiction of the Court of Appeals, and (3)
criminal cases wherein the trial court imposed a penalty of reclusion temporal or a lesser penalty
but a Division of the Court of Appeals, while in the process of deciding the case, comes to the
conclusion that the imposable penalty is death or reclusion perpetua. That third class of criminal
cases should be elevated to this Court "for final determination".
Reclusion perpetua was properly imposed in this case upon the appellant who is a pedophiliac.
CASTRO, C.J., dissenting:
1
The preliminary issue at bar is: What is the correct course of action that the Court of Appeals
should take when, in a criminal case properly appealed to it, that court determines that the penalty
of death or reclusion perpetua (life imprisonment) should be imposed instead of the lesser penalty
imposed by the court a quo? Should it refrain from rendering judgment and forthwith certify the
case to the Supreme Court? Or should it render judgment imposing what it considers as the proper
penalty (either life imprisonment or death) but refrain from entering judgment and thereafter
certify the case to the Supreme Court?
At the center of scrutiny is the pertinent provision of section 34 of the Judiciary Act of 1948, as
amended, and the Identical statement in the second paragraph of section 12 of Rule 124 of the
Rules of Court, both of which read:
Whenever in any criminal case submitted to a division [of the Court of Appeals] the said division
should be of the opinion that the penalty of death or life imprisonment should be imposed, the said
court shall refrain from entering judgment thereon and shall forthwith certify the case to the
Supreme Court for final determination, as if the case had been brought before it on appeal.
Justices Claudio Teehankee, Cecilia Munoz Palma and Ramon C. Aquino interpret the phrase
"entering judgment" in the inhibitory clause "shall refrain from entering judgment" to mean
"rendering judgment" or "pronouncing judgment," arguing that [t]his can be the only logical
interpretation considering that the Court of Appeals is without jurisdiction" to impose the penalties
of death and life imprisonment. They thus opt to maintain the present practice1 of requiring no
more than a forwarding certification (embodying findings of fact supporting the opinion that the
penalty of death or life imprisonment should be imposed) by the Court of Appeals for the purpose
of placing such case within the jurisdiction of the Supreme Court.
For the reasons hereunder stated, we consider their interpretation unwarranted and therefore reject
the conclusion that it leads to.
2.
Section 34 of the amended Judiciary Act and the second paragraph of section 12 of Rule 124 of
the Rules of Court must be construed in the light of the unequivocal phraseology of paragraph (d),
subsection (2), section 5 of Article X of the Constitution, which states:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(2) Review and revise, reverse, modify or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and decrees of inferiors courts in
xxx xxx xxx
(d) All criminal cases in which the penalty imposed is death, life imprisonment;
Varying the language of this provision only to the extent necessary to carry out its intention, the
first subdivision of the third paragraph of section 17 of the Judiciary Act made exclusive the
appellate jurisdiction of the Supreme Court, in the following words:
on appeal as the law or rules of court may provide, final judgments and decrees of inferior courts
as herein provided in -
imprisonment: ...
The constitutional mandate, given due statutory acknowledgment, sets forth the pertinent appellate
jurisdiction of the Supreme Court. We accord capital significance to the phrases "final judgments
and decrees of inferior courts and "the penalty imposed." These phrases are crystal-clear. Read
together with the remainder of the provision, they state in precise and unmistakable terms the sole
intended inescapable meaning that the Supreme Court shall have appellate jurisdiction over final
judgments of inferior courts in criminal cases in which the penalty imposed is death or life
imprisonment. No hermeneutic expertise or exercise can validly fashion some other meaning or
intention.
3.
The constitutionally determined nature of the criminal cases falling within the periphery of the
appellate jurisdiction of the Supreme Court fixes our perspective, defines and delimits our judicial
prerogative in the interpretation of section 34 of the Judiciary Act, and dictates the manner in
which the law in question should be read and made operative.
This being so, the clause enjoining the Court of Appeals to "refrain from entering judgment"
whenever it "should be of the opinion that the penalty of death or life imprisonment should be
imposed" cannot validly be interpreted as a bar to that appellate court's "rendering judgment." If
the meaning given to the law by the minority should prevail and the case is forwarded, as this case
before us was, to the Supreme Court on a bare certification by the Court of Appeals, then we have
the unacceptable happenstance of an ordinary legislative act upstaging the fundamental law, since,
plainly, the Supreme Court will be constrained to exercise its power to "review, revise, reverse,
modify or affirm on appeal" in criminal cases where NO "final judgment" in which "the penalty
imposed is death or life imprisonment" has been rendered or pronounced.
The minority view would thus result not only in an unconstitutional imposition on the Supreme
Court of assumption of jurisdiction over a case that is beyond its original appellate competence
but would also compel abandonment by the Court of Appeals of appellate jurisdiction legally and
duly vested in and acquired by it.
4.
Because sec. 34 of the Judiciary Act does not and cannot have primacy or ascendancy over the
Constitution, we assert that the Court of appeals is legally empowered to impose the penalties of
death and life imprisonment. Four basic and compelling considerations underlie our view.
First: There is no law no law at all that states such prohibition in categorical terms. The
minority view rests solely on the strained interpretation foisted on the very law under
consideration and this interpretation, as we have said, is entirely unwarranted.
Second: In the case at hand, the Court of appeals duly and legally assumed appellate jurisdiction
over the accused Amado Daniel's appeal from the decision of the Court of First Instance of Baguio
sentencing him to suffer a penalty less than life imprisonment. This cannot be debated since
section 29 of the Judiciary Act specifically places such appeal within the Court of Appeals'
jurisdictional ambit with the statement that
The Court of Appeals shall have exclusive appellate jurisdiction over all cases, actions, and
proceedings, not enumerated i section seventeen of this Act, properly brought to it.
Thus, absent any constitutional or legal constraints, the Court of Appeals should have rendered the
proper judgment in the case. For, verily, judicial jurisdiction is "the power with which judges are
invested for administering Justice that is, for trying civil or criminal cases, or both, and
deciding them and rendering judgment, ..., 2 (emphasis supplied)
Third: Harking back to the Constitution, the Court of Appeals, by unmistakable constitutional
categorization, is an "inferior court." And it is its judgments as such inferior court which, so the
Constitution plainly states, are the subject of the Supreme Court's plenary power of review,
revision, reversal, modification or affirmance.
Fourth: Absurdity and incongruity should not be read into the law so as to support the view that a
panel of three Justices of the Court of Appeals is denied the power to impose the penalties of life
imprisonment and death at the same time that such power is recognized in a single judge of a
lower court of admittedly lesser category,
5.
The resulting conclusion that the Court of Appeals must impose the proper penalty does not justify
the apprehension that the Supreme Court will be hampered in the exercise of its jurisdiction
because the findings of fact made by the inferior appellate court "will have to be respected." This
stated procedural practice has never been honored in the absolute. The ultimate function of the
Supreme Court is to render justice. And we need not elaborate on or belabor the numerous
occasions when, to attain this objective, the Court shunted aside technicalities to bare wide open
the controversy and inquire into each and every aspect, be it legal or factual or a mixture of both.
And this is one perfect instance where the avowed ends of justice must override practice and
procedure, for, no less than human life is at stake. And this would not be a novelty. When a trial
court's judgment imposing the death penalty is elevated to this Court en consulta, we strip the case
into minutiae: fact by fact, detail by detail, facet by facet. We see no reason why, when a decision
imposing the penalty of death or life imprisonment is rendered by the Court of Appeals, the same
manner of meticulous inquiry should not be resorted to by the Supreme Court. A sentence
imposing death or life imprisonment is of the self-same gravity, whichever is the sentencing
tribunal.3
6.
It is rather obvious that the phrase "entering judgment" is completely disparate from the term
"rendering judgment." There is no need to perambulate and meander the provisions of sections 1
and 2 of Rule 36 of the Rules of court need merely be read to perceive the strikingly sharp
antithesis between the two phrases. These sections read:
Section 1. Rendition of judgments. All judgments determining the merits of cases shall be
in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and
the law on which it [sic] is based, signed by him, and filed with the clerk of the court.
Section 2. Entry of judgments and orders. If no appeal or motion for new trial is filed
within the time provided in these rules, the judgment or order shall be entered by the clerk. The
recording of the judgment or order in the book of entries of judgments shall constitute its entry.
The record shall contain the dispositive part of the judgment or order and shall be signed by the
clerk, with a certificate that such judgment or order has become final and executory.
The word "enter" (which undeniably is the root of "entering") with reference to judgments has
acquired a definite meaning in our procedure. There simply exists no ambiguity to warrant
embroiled interpretation. We need not hammer out meaning from the word "entered." It is there.
Section 2, Rule 36 chisels out the legal import of the word.4 To repeat and stress the Rule, "[t]he
Upon the other hand, the rendition of judgment is the judicial act of the writing by the judge of the
decision and the filing thereof with the clerk of court. 5
Such being the precise acceptations of the terms "entering judgment" and "rendering judgment,"
we see no cogent reason why our indisputably learned lawmakers should have written in the
former when they meant the latter. If, as the minority would have it, the intention was just that,
why then has not section 34 of the Judiciary Act been accordingly amended, considering that the
said Act has been amended no less than ninety (90) times 6 since its enactment thirty years ago in
1948?
The conclusion is thus ineluctable that section 34 of the Judiciary Act means exactly what it says.
(And its intendment cannot and should not be altered through tile expedient of palpably tortuous
and torturous statutory interpretation.) This rightly projects the limited character of the said
section a procedural device designed to effect and make effective the jurisdictions of both the
Supreme Court and the Court of Appeals. Read as written, this section neither imposes nor curtails
constitutionally and legally established jurisdictions. The Court of Appeals can and must render a
decision and impose the proper penalty of death or life imprisonment, and, to effect the
jurisdiction of the Supreme Court, refrain from entering its judgment, and forthwith certify tile
case to the Supreme Court.
7.
Aside from according the respect that is due to the Constitution and setting aright the import of
section 34 of tile Judiciary Act, our reading of the law will obviate unnecessary, pointless and
time-wasting shuttling of criminal cases between the Supreme Court and the Court of Appeals. We
advert to that portion of the Ramos 7decision, cited with approval by Justice Muoz Palma, which
states:
findings of fact, it will pass upon the correctness of the legal conclusions derived thereof And if
this Court finds the conclusions to be correct, it will assume jurisdiction. If it finds then to be
wrong the case will be returned to the Court of Appeals. (emphasis supplied)
We particularly and especially object to the return of the ease to the Court of Appeals if the
Supreme Court "finds" the legal conclusions in the certification "to be wrong." This incident will
never come to pass if section 34 is correctly construed that is, as we construe it for, the
Supreme Court will acquire jurisdiction over the case from the very inception and can, without
bothering the Court of Appeals which has fully completed the exercise of its jurisdiction, do
justice in the case.
8.
ACCORDINGLY, this Court directs that, henceforth, should the Court of Appeals be of the
opinion that the penalty of death or reclusion perpetua (life imprisonment) should be imposed in
any criminal case appealed to it where the penalty imposed by the trial court is less than reclusion
perpetua the said Court, with a comprehensive written analysis of the evidence and discussion of
the law involved, render judgment expressly and explicitly imposing the penalty of either death or
reclusion perpetua as the circumstances warrant, refrain from entering judgment, and forthwith
certify the case and elevate the entire record thereof to this Court for review.
Barredo, Makasiar, Antonio, Concepcion, Jr., Santos and Fernandez, JJ., concur.
Separate Opinions

The phrase shall refrain from entering judgment thereon" found in section 12 of Rule 124 and in
section 34 of the Judiciary Law means that the Court of Appeals should not decide the case. The
Court of Appeals has been certifying to this Court criminal cases, wherein the imposable penalty is
death or reclusion perpetua without rendering any judgment but merely expressing its opinion that
the penalty imposed by the trial court is erroneous and that the imposable penalty is death or
reclusion perpetua. Invariably, this Court accepted those cases and decided the same. This Court's
jurisdiction in criminal cases, as defined in the Constitution, cannot be diminished but it can be
enlarged.
Appealed criminal cases may be divided into three classes: (1) those wherein the lower court
imposed the penalty of death or reclusion perpetua and which are within this Court's exclusive
appellate jurisdiction; (2) criminal cases wherein the trial court imposed reclusion temporal or a
lesser penalty and which fall within the appellate jurisdiction of the Court of Appeals, and (3)
criminal cases wherein the trial court imposed a penalty of reclusion temporal or a lesser penalty
but a Division of the Court of Appeals, while in the process of deciding the case, comes to the
conclusion that the imposable penalty is death or reclusion perpetua. That third class of criminal
cases should be elevated to this Court "for final determination".
Reclusion perpetua was properly imposed in this case upon the appellant who is a pedophiliac.
CASTRO, C.J., dissenting:
1
The preliminary issue at bar is: What is the correct course of action that the Court of Appeals
should take when, in a criminal case properly appealed to it, that court determines that the penalty
of death or reclusion perpetua (life imprisonment) should be imposed instead of the lesser penalty
imposed by the court a quo? Should it refrain from rendering judgment and forthwith certify the
case to the Supreme Court? Or should it render judgment imposing what it considers as the proper
penalty (either life imprisonment or death) but refrain from entering judgment and thereafter
certify the case to the Supreme Court?
At the center of scrutiny is the pertinent provision of section 34 of the Judiciary Act of 1948, as
amended, and the Identical statement in the second paragraph of section 12 of Rule 124 of the
Rules of Court, both of which read:
Whenever in any criminal case submitted to a division [of the Court of Appeals] the said division
should be of the opinion that the penalty of death or life imprisonment should be imposed, the said
court shall refrain from entering judgment thereon and shall forthwith certify the case to the
Supreme Court for final determination, as if the case had been brought before it on appeal.
Justices Claudio Teehankee, Cecilia Munoz Palma and Ramon C. Aquino interpret the phrase
"entering judgment" in the inhibitory clause "shall refrain from entering judgment" to mean
"rendering judgment" or "pronouncing judgment," arguing that [t]his can be the only logical
interpretation considering that the Court of Appeals is without jurisdiction" to impose the penalties
of death and life imprisonment. They thus opt to maintain the present practice1 of requiring no
more than a forwarding certification (embodying findings of fact supporting the opinion that the
penalty of death or life imprisonment should be imposed) by the Court of Appeals for the purpose
of placing such case within the jurisdiction of the Supreme Court.
For the reasons hereunder stated, we consider their interpretation unwarranted and therefore reject
the conclusion that it leads to.
2.
Section 34 of the amended Judiciary Act and the second paragraph of section 12 of Rule 124 of
the Rules of Court must be construed in the light of the unequivocal phraseology of paragraph (d),
subsection (2), section 5 of Article X of the Constitution, which states:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(2) Review and revise, reverse, modify or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and decrees of inferiors courts in
xxx xxx xxx
(d) All criminal cases in which the penalty imposed is death, life imprisonment;
Varying the language of this provision only to the extent necessary to carry out its intention, the
first subdivision of the third paragraph of section 17 of the Judiciary Act made exclusive the
appellate jurisdiction of the Supreme Court, in the following words:
on appeal as the law or rules of court may provide, final judgments and decrees of inferior courts
as herein provided in -
imprisonment: ...
The constitutional mandate, given due statutory acknowledgment, sets forth the pertinent appellate
jurisdiction of the Supreme Court. We accord capital significance to the phrases "final judgments
and decrees of inferior courts and "the penalty imposed." These phrases are crystal-clear. Read
together with the remainder of the provision, they state in precise and unmistakable terms the sole
intended inescapable meaning that the Supreme Court shall have appellate jurisdiction over final
judgments of inferior courts in criminal cases in which the penalty imposed is death or life
imprisonment. No hermeneutic expertise or exercise can validly fashion some other meaning or
intention.
3.
The constitutionally determined nature of the criminal cases falling within the periphery of the
appellate jurisdiction of the Supreme Court fixes our perspective, defines and delimits our judicial
prerogative in the interpretation of section 34 of the Judiciary Act, and dictates the manner in
which the law in question should be read and made operative.
This being so, the clause enjoining the Court of Appeals to "refrain from entering judgment"
whenever it "should be of the opinion that the penalty of death or life imprisonment should be
imposed" cannot validly be interpreted as a bar to that appellate court's "rendering judgment." If
the meaning given to the law by the minority should prevail and the case is forwarded, as this case
before us was, to the Supreme Court on a bare certification by the Court of Appeals, then we have
the unacceptable happenstance of an ordinary legislative act upstaging the fundamental law, since,
plainly, the Supreme Court will be constrained to exercise its power to "review, revise, reverse,
modify or affirm on appeal" in criminal cases where NO "final judgment" in which "the penalty
imposed is death or life imprisonment" has been rendered or pronounced.
The minority view would thus result not only in an unconstitutional imposition on the Supreme
Court of assumption of jurisdiction over a case that is beyond its original appellate competence
but would also compel abandonment by the Court of Appeals of appellate jurisdiction legally and
duly vested in and acquired by it.
4.
Because sec. 34 of the Judiciary Act does not and cannot have primacy or ascendancy over the
Constitution, we assert that the Court of appeals is legally empowered to impose the penalties of
death and life imprisonment. Four basic and compelling considerations underlie our view.
First: There is no law no law at all that states such prohibition in categorical terms. The
minority view rests solely on the strained interpretation foisted on the very law under
consideration and this interpretation, as we have said, is entirely unwarranted.
Second: In the case at hand, the Court of appeals duly and legally assumed appellate jurisdiction
over the accused Amado Daniel's appeal from the decision of the Court of First Instance of Baguio
sentencing him to suffer a penalty less than life imprisonment. This cannot be debated since
section 29 of the Judiciary Act specifically places such appeal within the Court of Appeals'
jurisdictional ambit with the statement that
The Court of Appeals shall have exclusive appellate jurisdiction over all cases, actions, and
proceedings, not enumerated i section seventeen of this Act, properly brought to it.
Thus, absent any constitutional or legal constraints, the Court of Appeals should have rendered the
proper judgment in the case. For, verily, judicial jurisdiction is "the power with which judges are
invested for administering Justice that is, for trying civil or criminal cases, or both, and
deciding them and rendering judgment, ..., 2 (emphasis supplied)
Third: Harking back to the Constitution, the Court of Appeals, by unmistakable constitutional
categorization, is an "inferior court." And it is its judgments as such inferior court which, so the
Constitution plainly states, are the subject of the Supreme Court's plenary power of review,
revision, reversal, modification or affirmance.
Fourth: Absurdity and incongruity should not be read into the law so as to support the view that a
panel of three Justices of the Court of Appeals is denied the power to impose the penalties of life
imprisonment and death at the same time that such power is recognized in a single judge of a
lower court of admittedly lesser category,
5.
The resulting conclusion that the Court of Appeals must impose the proper penalty does not justify
the apprehension that the Supreme Court will be hampered in the exercise of its jurisdiction
because the findings of fact made by the inferior appellate court "will have to be respected." This
stated procedural practice has never been honored in the absolute. The ultimate function of the
Supreme Court is to render justice. And we need not elaborate on or belabor the numerous
occasions when, to attain this objective, the Court shunted aside technicalities to bare wide open
the controversy and inquire into each and every aspect, be it legal or factual or a mixture of both.
And this is one perfect instance where the avowed ends of justice must override practice and
procedure, for, no less than human life is at stake. And this would not be a novelty. When a trial
court's judgment imposing the death penalty is elevated to this Court en consulta, we strip the case
into minutiae: fact by fact, detail by detail, facet by facet. We see no reason why, when a decision
imposing the penalty of death or life imprisonment is rendered by the Court of Appeals, the same
manner of meticulous inquiry should not be resorted to by the Supreme Court. A sentence
imposing death or life imprisonment is of the self-same gravity, whichever is the sentencing
tribunal.3
6.
It is rather obvious that the phrase "entering judgment" is completely disparate from the term
"rendering judgment." There is no need to perambulate and meander the provisions of sections 1
and 2 of Rule 36 of the Rules of court need merely be read to perceive the strikingly sharp
antithesis between the two phrases. These sections read:
Section 1. Rendition of judgments. All judgments determining the merits of cases shall be
in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and
the law on which it [sic] is based, signed by him, and filed with the clerk of the court.
Section 2. Entry of judgments and orders. If no appeal or motion for new trial is filed
within the time provided in these rules, the judgment or order shall be entered by the clerk. The
The record shall contain the dispositive part of the judgment or order and shall be signed by the
clerk, with a certificate that such judgment or order has become final and executory.
The word "enter" (which undeniably is the root of "entering") with reference to judgments has
acquired a definite meaning in our procedure. There simply exists no ambiguity to warrant
embroiled interpretation. We need not hammer out meaning from the word "entered." It is there.
Section 2, Rule 36 chisels out the legal import of the word.4 To repeat and stress the Rule, "[t]he
Upon the other hand, the rendition of judgment is the judicial act of the writing by the judge of the
decision and the filing thereof with the clerk of court. 5
Such being the precise acceptations of the terms "entering judgment" and "rendering judgment,"
we see no cogent reason why our indisputably learned lawmakers should have written in the
former when they meant the latter. If, as the minority would have it, the intention was just that,
why then has not section 34 of the Judiciary Act been accordingly amended, considering that the
said Act has been amended no less than ninety (90) times 6 since its enactment thirty years ago in
1948?
The conclusion is thus ineluctable that section 34 of the Judiciary Act means exactly what it says.
(And its intendment cannot and should not be altered through tile expedient of palpably tortuous
and torturous statutory interpretation.) This rightly projects the limited character of the said
section a procedural device designed to effect and make effective the jurisdictions of both the
Supreme Court and the Court of Appeals. Read as written, this section neither imposes nor curtails
constitutionally and legally established jurisdictions. The Court of Appeals can and must render a
decision and impose the proper penalty of death or life imprisonment, and, to effect the
jurisdiction of the Supreme Court, refrain from entering its judgment, and forthwith certify tile
case to the Supreme Court.
7.
Aside from according the respect that is due to the Constitution and setting aright the import of
section 34 of tile Judiciary Act, our reading of the law will obviate unnecessary, pointless and
time-wasting shuttling of criminal cases between the Supreme Court and the Court of Appeals. We
advert to that portion of the Ramos 7decision, cited with approval by Justice Muoz Palma, which
states:
findings of fact, it will pass upon the correctness of the legal conclusions derived thereof And if
this Court finds the conclusions to be correct, it will assume jurisdiction. If it finds then to be
wrong the case will be returned to the Court of Appeals. (emphasis supplied)
We particularly and especially object to the return of the ease to the Court of Appeals if the
Supreme Court "finds" the legal conclusions in the certification "to be wrong." This incident will
never come to pass if section 34 is correctly construed that is, as we construe it for, the
Supreme Court will acquire jurisdiction over the case from the very inception and can, without
bothering the Court of Appeals which has fully completed the exercise of its jurisdiction, do
justice in the case.
8.
ACCORDINGLY, this Court directs that, henceforth, should the Court of Appeals be of the
opinion that the penalty of death or reclusion perpetua (life imprisonment) should be imposed in
any criminal case appealed to it where the penalty imposed by the trial court is less than reclusion
perpetua the said Court, with a comprehensive written analysis of the evidence and discussion of
the law involved, render judgment expressly and explicitly imposing the penalty of either death or
reclusion perpetua as the circumstances warrant, refrain from entering judgment, and forthwith
certify the case and elevate the entire record thereof to this Court for review.
Barredo, Makasiar, Antonio, Concepcion, Jr., Santos and Fernandez, JJ., concur.
Footnotes
1 People vs. Ramos, 79 Phil. 612.

2 The Tenth Division was composed at the time of Justices Ramon C. Fernandez, Ricardo C.
Puno, and Sixto A. Domondon, with Justice Puno as the ponente, pp. 107-108, of rollo.
3 p. 127, Ibid.
4 The Court of Appeals was organized under Commonwealth Act No. 3. Abolished in 1945
under Executive Order No. 37 issued by the President of the Philippines, the appellate court was
recreated under R.A. No. 52 upon the inauguration of the Philippine Republic See Moran on the
Rules of Court, 1970 Ed Vol. 1, p. 14.
5 Formerly, 145-K, Revised Administrative Code, later adopted in Section 34, RA 296,
otherwise known as the Judiciary Act of 1948.
6 79 Phil. 612
7 pp. 617-619, Ibid.
8 ibid., pp. 620-629.
9 Art. VIII, Sec. 2(4), 1935 Constitution; Art. X, Sec. 5, subsec. 2(d), 1973 Constitution.
10 Art. VIII, Sec. 1, 1935 Constitution; Art. X, Sec. 1, 1973 Constitution.
11 formerly 145-K Revised Administrative Code and Sec. 34, Judiciary Act of 1948.
12 Section 7, Rule 120, Rules of Court.
13 Section 2, Rule 36, Ibid.
14 tsn, Nov. 26, 1965, pp. 14-16.
15 tsn, December 23, 1965, pp. 43-57.
16 pp. 18-19, Appellant's brief.
17 tsn December 9, 1965, pp. 24-25.
18 pp. 25-27, Ibid.
19 pp. 30-31, Ibid.
20 tsn. December 23, 1965, p. 59.
21 tsn. December 9, 1965, p. 35.
22 Decision of Supreme Court of Spain, May 14, 1878, 5 Viada, 5th ed., page 224, pt. 8, cited in
People v. Momo, 1931, 56 Phil. 86, 87.
23 57 SCRA 320,328.
24 See People v. Garcines, 1974, 57 SCRA 653.
25 See pp. 165-166, CFI record.
Castro, J.
1 People vs. Ramos, 79 Phil. 612.
2 Conchada vs. Director of Prisons, 31 Phil. 95, quoting Escriche Diccionario de Legislacion y
Jurispruden (4 Vol. 3, p. 743, ed. 1875.
3 See U.S. vs. Laguna, 17 Phil. 532: "The requirement that the Supreme Court pass upon a case
in which capital punishment has been imposed by the sentence of the trial court is one having for
its object ... the protection of the accused. Having received the highest penalty which the law
imposes, he is entitled under that law to have the sentence and all the facts and circumstances
upon which it is founded placed before the highest tribunal of the land to the end that its justice
and legality may be clearly and conclusively determination ed."
4 Dirige vs. Biranya, 17 SCRA 840.
5 People vs. Soria, 22 SCRA 948; Ago vs. CA, 6 SCRA 530; 49 C. J. S. p. 222.
6 The Judiciary Act of 1948 RA 296) was amended by Republic Acts Nos. 431, 643, 644, 843,
859, 1186, 1404, 1605, 1914, 1963, 1969, 2613, 2682, 2696, 2718, 2875, 3067, 3084, 3086, 3087,
3090, 3114, 3327, 3599, 3632, 3749, 3828, 4057, 4134, 4235, 4322, 4533, 4644, 4728, 4769,
4798, 4814, 4821, 4833, 4838, 4892, 5052, 5064, 5067, 5075, 5084, 5103, 5107, 5116, 5126,
5129, 5135, 5140, 5147, 5204,
5277, 5296, 5341, 5382, 5389, 5433, 5440, 5468, 5479, 5675, 6031, 6092, 6157, 6159, 6263,
6264, 6439, 6445, and 6546, and by Presidential Decrees Nos. 204, 289, 363, 411, 411-A, 506,
516, 537, 722, 723, 827, 974, 1130, 1439, 1482, and 1600.
7 79 Phil. 612, at p. 616.

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SUPREME COURT
Manila
EN BANC
G.R. No. L-19491 August 30, 1968

vs.
APOLONIO APDUHAN, JR. alias JUNIOR, ET AL., defendants,
APOLONIO APDUHAN, JR. alias JUNIOR, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Alberto M. Meer for defendant-appellant.
CASTRO, J.:
This is an automatic review of the judgment rendered on August 30, 1961 by the Court of First
Instance of Bohol (Judge Hipolito Alo presiding) convicting Apolonio Apduhan, Jr. of robbery
with homicide and sentencing him to death and "to idemnify the heirs of the deceased Geronimo
Miano in the amount of P6,000.00, to indemnify the heirs of the other deceased Norberto Aton in
the same amount of P6,000.00 ..."
On August 2, 1961 the accused Apduhan, then represented by Atty. David Ocangas, together with
his co-accused Rodulfo Huiso and Felipe Quimson, both represented by Atty. David Tirol, pleaded
not guilty to a second amended information which recites:.
The undersigned Provincial Fiscal accuses Apolonio Apduhan, Jr., alias Junior, Rodulfo Huiso and
Felipe Quimson of the crime of Robbery with Homicide, committed as follows:
That on or about the 23rd day of May, 1961, at about 7:00 o'clock in the evening, in the
Municipality of Mabini, Province of Bohol, Philippines, the above-named accused and five (5)
other persons whose true names are not yet known (they are presently known only with their
aliases of Bernabe Miano, Rudy, Angel-Angi, Romeo and Tony) and who are still at large (they
will be charged in separate information or informations as soon as they are arrested and
preliminary proceedings in Crim. Case No. 176 completed before the Justice of the Peace Court),
all of them armed with different unlicensed firearms, daggers, and other deadly weapons,
conspiring, confederating and helping one another, with intent of gain, did then and there willfully,
unlawfully and feloniously enter, by means of violence, the dwelling house of the spouses
Honorato Miano and Antonia Miano, which was also the dwelling house of their children, the
spouses Geronimo Miano and Herminigilda de Miano; and, once inside the said dwelling house,
the above-named accused with their five (5) other companions, did attack, hack and shoot
Geronimo Miano and another person by the name of Norberto Aton, who happened to be also in
the said dwelling house, thereby inflicting upon the said two (2) persons physical injuries which
caused their death; and thereafter the same accused and their five (5) other companions, did take
and carry way from said dwelling house cash money amounting to Three Hundred Twenty-two
Pesos (P322.00), Philippine Currency, belonging to Honorato Miano and Geronimo Miano, to the
damage and prejudice of the said Honorato Miano and the heirs of the deceased Geronimo Miano
in the sum of Three Hundred Twenty-two Pesos (P322.00) with respect to the amount robbed, and
also to the damage and prejudice of the heirs of deceased Geronimo Miano and Norberto Aton by
reason of the death of these two persons.
Act committed contrary to the provisions of Art. 294, par. 1, of the Revised Penal Code with the
special aggravating circumstance that the crime was committed by a band with the use of
unlicensed firearms (Art. 296, Rev. Penal Code), and other aggravating circumstances, as follows:
1. That the crime was committed in the dwelling of the offended parties without any provocation
from the latter;
2. That nighttime was purposely sought to facilitate the commission of the crime; and.
3. That advantage was taken of superior strength, accused and their companions, who were fully
armed, being numerically superior to the offended parties who were unarmed and defenseless.
When the case was called for trial on August 9, 1961, Atty. Tirol informed the court a quo that he
was appearing also for Apduhan, but only as counsel de oficio. In view of this manifestation, the
trial court appointed Atty. Tirol as counsel de oficio for the said accused. Forthwith, Atty. Tirol
manifested that Apduhan would change his former plea of not guilty to a plea of guilty. The record
discloses that after the trial, judge had repeatedly apprised Apduhan of the severity of the offense
for which he was indicted and the strong possibility that the capital penalty might be imposed
upon him despite a plea of guilty, Apduhan persisted in his intention to plead guilty with the
request, however, that the death penalty be not imposed. Then after hearing the arguments of
Provincial Fiscal Jesus N. Borromeo and Atty. Tirol on the effect of articles 295 and 296 of the
Revised Penal Code on the case at bar, the trial judge advised the herein accused anew that he
could be sentenced to death notwithstanding his projected plea of guilty, but the latter reiterated
his desire to confess his guilt on the specific condition that he be sentenced to life imprisonment.
Eventually, however, Apduhan desisted from pleading guilty and let his previous plea stand on
record after further warnings that he faced the grave danger of being sentenced to death in view of
the circumstances of his case. But the aforesaid desistance was merely momentary as it did not
end the accused's equivocation on the matter of his plea. After a five-minute recess requested by
Atty. Tirol in order to confer with the accused, the former informed the court a quo that his client
would insist on entering a plea of guilty. The following appears on record:
Atty. D. TIROL:
Your Honor, please, I had a conference with the accused and I apprised him with the situation of
the case and after hearing our apprisal he manifested that he will insist on his entering a plea of
guilty, Your Honor. I made it clear to him that we are not forcing him to enter the plea of guilty.
COURT (To accused Apolonio Apduhan, Jr.)
Q. Is it true that you are withdrawing your plea of not guilty?
A. I will just enter the plea of guilty.
Q. Have you been forced to enter the plea of guilty by your lawyer?.
A. No, Sir.
Q. And why do you said "I will JUST enter the plea of not guilty"?
A. I have proposed to enter the plea of guilty even before.
Q. Now the Court warns you again. Are you conscious of the fact that notwithstanding your plea
of guilty the Court may impose upon you the penalty of death?
A. I will just enter the plea of guilty, at the discretion of the Court.
Q. Even with all those dangers mentioned by the Court to you? .
A. Yes, Sir. (t.s.n. pp. 23-25).
Subsequently the prosecuting fiscal and the counsel de oficio resumed their oral arguments
regarding the effect on the instant case of articles 295 and 296, particularly the use of unlicensed
firearm as a special aggravating circumstance under the latter article. Also discuss were the
existence and effect of the alleged mitigating and aggravating circumstances. All of these points
will be later analyzed.
When the lower court subsequently reviewed the proceedings, it found that the accused's plea of
guilty was ambiguous. Hence, on August 30, 1961, the case was reopened with respect to
Apduhan, and on said date the latter entered a categorical plea of guilty, as evidenced by the
record:
COURT (To Accused Apduhan, Jr.):
The Court reopened this case because after a review of the proceedings it found that your plea was
not definite. In answer to a question of the Court you simply said "I will just enter the plea of
guilty". The Court wants to know whether you enter the plea of guilty of the crime charged in the
second amended information.
ACCUSED APDUHAN:.
I enter the plea of guilty.
COURT (To same accused Apduhan):
Q. Therefore, you admit that you have committed the crime charged in the second information?
A. Yes, Your Honor.
Q. Is it necessary for you that the second amended information be read again?
A. No more; it is not necessary.
Q. Do you want that the second amended information be read to you again?
A. No more, Your Honor. (t.s.n. pp. 50-51).
On the same day, the court a quo rendered its decision, the pertinent dispositive portion of which
reads:.
PREMISES CONSIDERED, the Court renders judgment finding accused Apolonio Apduhan, Jr.,
alias Junior guilty of the complex crime of robbery with homicide, punished by Article 294 of the
Revised Penal Code, in relation to Article 296 of the game Code, as amended, and sentences him
to suffer the penalty of death.
Considering that Apduhan had voluntarily confessed his guilt in open court, then the only aspect
of the case properly subject to review is the correctness of the penalty imposed by the court a quo.
In this respect, the appreciation of the use of unlicensed firearm as a special aggravating
circumstance (art. 296) in fixing the appropriate penalty for robbery with homicide (Art, 294 [1])
committed by a band with the use of unlicensed firearms, and the interplay and counter-balancing
of the attendant mitigating and aggravating circumstances, would determine the severity of the
penalty imposable.
The disposition of the question at hand necessitates a discussion of the interrelation among articles
294, 295 and 296 of the Revised Penal Code. For this purpose the said articles are hereunder
quoted:
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 suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the
crime of homicide shall have been committed.
2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery
shall have been accompanied by rape or intentional mutilation, or if by reason or on occasion of
such robbery, any of the physical injuries penalized in subdivision 1 of article 263 shall have been
inflicted.
3. The penalty of reclusion temporal, when by reason or on occasion of the robbery, any of the
physical injuries penalized in subdivision 2 of the article mentioned in the next preceding
paragraph, shall have been inflicted.
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 when in the course of the
execution, the offender shall have inflicted upon any person not responsible for its commission
any of the physical injuries covered by subdivisions 3 and 4 of said article 263.
5. The penalty of prision correccional in its maximum period to prision mayor in its medium
period in other cases. (As amended by Rep. Act 18.).
ART 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or
with the use of firearm on a street, road or alley. If the offenses mentioned in subdivisions
three, four, and five of the next preceding article shall have been committed in an uninhabited
place or by a band, or by attacking a moving train, street car, motor vehicle or airship, or by
entering the passengers' compartments in a train or, in any manner, taking the passengers thereof
by surprise in the respective conveyances, or on a street, road highway, or alley, and the
intimidation is made with the use of a firearm, the offender shall be punished by the maximum
period of the proper penalties. (As amended by Rep. Acts Nos. 12 and 373.) (Emphasis supplied) .
ART. 296. Definition of a band and penalty incurred by the members thereof. When more than
three armed malefactors take part in the commission of a robbery, it shall be deemed to have been
committed by a band. When any of the arms used in the commission of the offense be an
unlicensed firearm the penalty to be imposed upon all the malefactors shall be the maximum of the
corresponding penalty provided by law, without prejudice to the criminal liability for illegal
possession of such unlicensed firearm.
Any member of a band who is present at the commission of a robbery by the band, shall be
punished as principal of any of the assaults committed by the band, unless it be shown that he
attempted to prevent the same. (As amended by Rep. Act No. 12). (Emphasis supplied).
The afore-quoted art. 294 enumerates five classes of robbery with violence against or intimidation
of persons and prescribes the corresponding penalties. The case at bar falls under art. 294(1) which
defines robbery with homicide and fixes the penalty from reclusion perpetua to death.
Article 295 provides, inter alia, that when the offenses described in subdivisions 3, 4 and 5 of art.
294 are committed by a band, the proper penalties must be imposed in the maximum periods. The
circumstance of band is therefore qualifying only in robbery punished by subdivisions 3, 4, and 5
of art. 294. Consequently, art. 295 is inapplicable to robbery with homicide, rape, intentional
mutilation, and lesiones graves resulting in insanity, imbecility, impotency or blindness. If the
foregoing classes of robbery which are described in art. 294(1) and (2) are perpetrated by a band,
they would not be punishable under art. 295, but then cuadrilla would be a generic aggravating
under Art. 14 of the Code.1 Hence, with the present wording of art. 2952 there is no crime as
"robbery with homicide in band." If robbery with homicide is committed by a band, the indictable
offense would still be denominated as "robbery with homicide" under art. 294(1), but the element
of band, as stated above, would be appreciated as an ordinary aggravating circumstance.
Article 296, as quoted above, defines "band", creates the special aggravating circumstance of use
of unlicensed firearm, and provides the criminal liability incurred by the members of the band.
The ascertainment of the definite function and range of applicability of this article in relation to
articles 294 and 295 is essential in the disposition of the case at bar.
In imposing the death penalty, the trial court appears to have accorded validity to the Provincial
Fiscal's contention that in robbery with homicide committed by a band, the use of unlicensed
firearm must be appreciated as a special aggravating circumstance pursuant to art. 296. Thus
convinced, the trial judge stressed in his decision that "under the express mandate of the law, we
cannot escape the arduous task of imposing the death penalty." Subscribing to the said position,
the Solicitor General adds that the "penalty for robbery under the circumstances mentioned in
Articles 294, paragraph 1, and 296 of the Code is the maximum of reclusion perpetua to death, or
the supreme penalty of death. This is mandatory." .
On the other hand, Atty. Alberto M. Meer, the accused's counsel de oficio in the present review,
contends that the use of unlicensed firearm, if ever appreciated in the case at bar, must be
considered a generic aggravating factor which "may be off-set by the existence of mitigating
circumstances so that the penalty to be imposed should be the penalty of reclusion perpetua." .
Both the foregoing contentions are untenable.
After a perceptive analysis of the provisions of art. 296, we reach the considered opinion that the
said article is exclusively linked and singularly applicable to the immediately antecedent provision
of art. 295 on robbery in band, as the latter article, in turn, is explicitly limited in scope to
subdivisions 3, 4, and 5 of art. 294. Consequently, although the use of unlicensed firearm is a
special aggravating circumstance under art. 296, as amended by Rep. Act 12, 3 it cannot be
appreciated as such in relation to robbery with homicide, described and penalized under paragraph
1 of art. 294.
As previously stated, art. 295 provides that if any of the classes of robbery described in
subdivisions 3, 4, and 5 of art. 294 is committed by a band, the offender shall be punished by the
maximum period of the proper penalty. Correspondingly, the immediately following provisions of
art. 296 define the term "band", prescribe the collective liability of the members of the band, and
state that "when any of the arms used in the commission of the offense be in unlicensed firearm,
the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding
penalty provided by law." Viewed from the contextual relation of articles 295 and 296, the word
"offense" mentioned in the above-quoted portion of the latter article logically means the crime of
robbery committed by a band, as the phrase "all the malefactors" indubitably refers to the
members of the band and the phrase "the corresponding penalty provided by law" relates to the
offenses of robbery described in the last three subdivisions of art. 294 which are all encompassed
within the ambit of art. 295. Evidently, therefore, art. 296 in its entirety is designed to amplify and
modify the provision on robbery in band which is nowhere to be found but in art. 295 in relation to
subdivisions 3, 4, and 5 of art. 294. Verily, in order that the aforesaid special aggravating
circumstance of use of unlicensed firearm may be appreciated to justify the imposition of the
maximum period of the proper penalty it is a condition sine qua non that the offense charged be
robbery committed by a band within the contemplation of art. 295. To reiterate, since art. 295,
does not apply to subdivision 1 and 2 of art. 294, then the special aggravating factor in question,
which is solely applicable to robbery in band under art. 295, cannot be considered in fixing the
penalty imposable for robbery with homicide under art. 294(1), even if the said crime was
committed by a band with the use of unlicensed firearms.
The legislative intent of making art. 296 corollary to art. 295 with respect to robbery in band was
unmistakably articulated by Congressman Albano in his sponsorship speech on H. B. No. 124
(subsequently enacted as Rep. Act No. 12, amending, among others, articles 295 and 296 of the
Revised Penal Code). Said Congressman Albano: "Article 296 as a corollary of Article 295 would
change the definition heretofore known of the term "band" under the law. The purpose of this
amendment is to inject therein the element of aggravation, when any member of the band carries
an unlicensed firearm . ." 4.
The special aggravating circumstance of use of unlicensed firearm, however, was initially
applicable to all the subdivisions of art. 294 since the said Rep. Act No. 12 also amended art. 295
to include within its scope all the classes of robbery described in art. 294. With the then enlarged
coverage of art. 295, art. 296, being corollary to the former, was perforce made applicable to
robbery with homicide (art. 294[1]). Thus, in People vs. Bersamin, 5 this Court, in passing,
opined: "The use of unlicensed firearm is a special aggravating circumstanceapplicable only in
cases of robbery in band (Art. 296, Revised Penal Code, as amended by Section 3, Republic Act
No. 12)." .
In the said case, this Court declared in effect that in robo con homicidio the use of unlicensed
firearm is not a special aggravating circumstance when the said offense is not committed by a
band. Inferentially, had the robbery with homicide in Bersamin been perpetrated by a band, the use
of unlicensed firearm would have been appreciated. This implied pronouncement would have been
justified under art. 296 in relation to art. 295, as amended by Rep. Act 12. But the aforesaid
inference lost all legal moorings in 1949 with the enactment of Rep. Act 373 which excluded
subdivisions 1 and 2 of art. 294 from the coverage of art. 295. Since art. 296, as repeatedly
emphasized above, is corollary to art. 295, the diminution of the latter's scope correspondingly
reduced the former's extent of applicability. In other words, the passage of the foregoing
amendment did not only jettison the first two subdivisions of art. 294 from the periphery of art.
295 but also removed the said subdivisions (which pertain, inter alia, to the offense of robbery
with homicide) from the effective range of art. 296.
Notwithstanding that the special aggravating circumstance of use of unlicensed firearm cannot be
appreciated in the instant case, we are constrained, in the final analysis, to observe that the
imposition of the death penalty on the accused Apduhan would appear to be a logical legal
consequence, because as against the attendant mitigating circumstances the aggravating
circumstances numerically and qualitatively preponderate.
After Apduhan had pleaded guilty, the defense counsel offered for consideration three mitigating
circumstances, namely, plea of guilty, intoxication, and lack of intent to commit so grave a wrong.
Subsequently, however, the defense withdrew the last mentioned mitigating circumstance after the
prosecution had withdrawn the aggravating circumstance of abuse of superior strength. The
following manifestations appear on record: .
"FISCAL BORROMEO: .
"In fairness to the accused, because the crime charged is robbery in band (the case at bar is
actually robbery with homicide), it is natural that in robbery in band there is already abuse of
superior strength, so we will just withdraw that superior strength.
"COURT (To Atty. D. Tirol): .
"What do you say now? .
"ATTY. D. TIROL: .
"Such being the case, we will not insist on presenting evidence in support of our contention that
the accused did not intend to commit so grave a wrong.
"COURT: .
"Moreover by the mere use of firearm the accused cannot claim that he did not intend to commit
so grave a wrong as that committed. So now you withdraw your petition that you be allowed to
present evidence to that effect? .
"ATTY. D. TIROL: .
"Yes, Your Honor." (t.s.n. pp. 47-48).
Thus, only two alleged mitigating circumstances remain for consideration.
Anent the plea of guilty, we believe that under art. 13 (7) its appreciation in the case at bar is
beyond controversion.
However, apropos the alternative circumstance of intoxication, we find no evidence on record to
support the defense's claim that it should be considered as a mitigating factor. This absence of
proof can be attributed to the defense's erroneous belief that it was not anymore its burden to
establish the state of intoxication of the accused when he committed the offense charged since
anyway the prosecution had already admitted the attendance of the said mitigating circumstance
on the ground that the State did not have strong evidence to overthrow the accused's claim of non-
habituality to drinking. The record discloses the following pertinent discussion: .
"COURT (To Fiscal Borromeo):.
"Do you agree, Mr. Fiscal, that the non-habitual intoxication of the accused be also taken into
account in his favor as a mitigating circumstance? "FISCAL BORROMEO: .
"We have no evidence exactly to know at this time that the accused was intoxicated, but his
affidavit states that before the commission of the crime they took young coconuts and there is no
mention about the taking of any liquor, so that, as it is now, we are constrained to object.
"COURT (To the Fiscal): .
"But do you have evidence to counteract that allegation? .
"FISCAL BORROMEO: .
"We do not have any evidence to counteract that.
"But do you not admit the attendance of that circumstance? .
"FISCAL BORROMEO: With that manifestation we submit because actually we do not have
evidence to counteract that he was a habitual drinker. "COURT (To the Fiscal): .
"But do you prefer to admit that mitigating circumstance or you need that evidence be presented to
that effect? "FISCAL BORROMEO: .
"Inasmuch as we do not have strong evidence to contradict that circumstance in fairness to the
accused, we would rather submit.
"The attendance of the mitigating circumstance of non-habitual intoxication? .
"FISCAL BORROMEO: .
"Yes, Your Honor." (t.s.n. pp. 7-9) (Emphasis supplied) .
From the above proceedings in the trial court, it would appear that what the prosecution actually
intended to admit was the non-habituality of the accused to drinking liquor, not as a matter of fact,
but due to the State's inability to disprove the same. The prosecution apparently did not concede
the actual intoxication of the accused. We are of the firm conviction that, under the environmental
circumstances, the defense was not relieved of its burden to prove the accused's actual state of
intoxication. Otherwise, to appreciate the attendance of a mitigating factor on the mere allegation
of the accused, coupled with the dubious acquiescence of the prosecution, would open wide the
avenue for unscrupulous and deceitful collusion between defense and prosecution in order to
unduly and unjustly minimize the penalty imposable upon the accused.
The last paragraph of art. 15 of the Code provides:.
"The intoxication of the offender shall be taken into consideration as a mitigating circumstance
when the offender has committed a felony in a state of intoxication, if the same is not habitual or
subsequent to the plan to commit said felony but when the intoxication is habitual or intentional it
shall be considered as an aggravating circumstance. (Emphasis supplied).
Under the foregoing provision, intoxication is mitigating when it is not habitual or intentional, that
is, not subsequent to the plan to commit the crime. However, to be mitigating the accused's state of
intoxication must be proved. 6 Once intoxication is established by satisfactory evidence, 7 then in
the absence of proof to the contrary" it is presumed to be non-habitual or unintentional. 8 .
In People vs. Noble 9 the defendant testified that before the murder he took a bottle of wine and
drank little by little until he got drunk. The policeman who arrested the accused testified that the
latter smelled wine and vomited. The Court held that the evidence presented was not satisfactory
to warrant a mitigation of the penalty. Intoxication was likewise not competently proved in a case
10 where the only evidence was that the defendant had a gallon of tuba with him at the time he
committed the crime.
In the case at bar the accused merely alleged that when he committed the offense charged he was
intoxicated although he was "not used to be drunk," 11This self-serving statement stands
uncorroborated. Obviously, it is devoid of any probative value.
To recapitulate, the accused has in his favor only one mitigating circumstance: plea of guilty. As
aforementioned, the defense withdrew its claim of "lack of intent to commit so grave a wrong" and
failed to substantiate its contention that intoxication should be considered mitigating.
While an unqualified plea of guilty is mitigating, it at the same time constitutes an admission of all
the material facts alleged in the information, including the aggravating circumstances therein
recited. 12 The four aggravating circumstances are (1) band; (2) dwelling; (3) nighttime; and (4)
abuse of superior strength. The circumstance of abuse of superiority was, however, withdrawn by
the prosecution on the ground that since the offense of robbery with homicide was committed by a
band, the element of cuadrilla necessarily absorbs the circumstance of abuse of superior strength.
We believe that said withdrawal was ill-advised since the circumstances of band and abuse of
superiority are separate and distinct legal concepts. The element of band is appreciated when the
offense is committed by more than three armed malefactors regardless of the comparative strength
of the victim or victims. Hence, the indispensable components of cuadrilla are (1) at least four
malefactors and (2) all of the four malefactors are armed. On the other hand, the gravamen of
abuse of superiority is the taking advantage by the culprits of their collective strength to
overpower their relatively weaker victim or victims. Hence, in the latter aggravating factor, what
is taken into account is not the number of aggressors nor the fact that they are armed, but their
relative physical might vis-a-vis the offended party.
Granting, however, that the said withdrawal was valid, there still remain three aggravating
circumstances which render inutile the solitary extenuating circumstance of plea of guilty. The
prosecution does not need to prove the said three circumstances (all alleged in the second
amended information) since the accused by his plea of guilty, has supplied the requisite proof. 13
Hence, we will not belabor our discussion of the attendance aggravating circumstances.
The settled rule is that dwelling is aggravating in robbery with violence or intimidation of persons,
14 like the offense at bar. The rationale behind this pronouncement is that this class of robbery
could be committed without the necessity of transgressing the sanctity of the home. Morada is
inherent only in crimes which could be committed in no other place than in the house of another,
such as trespass and robbery in an inhabited house. 15 This Court in People vs. Pinca, 16 citing
People vs. Valdez, 17 ruled that the "circumstances (of dwelling and scaling) were certainly not
inherent in the crime committed, because, the crime being robbery with violence or intimidation
against persons (specifically, robbery with homicide) the authors thereof could have committed it
without the necessity of violating or scaling the domicile of their victim." Cuello Calon opines that
the commission of the crime in another's dwelling shows greater perversity in the accused and
produces greater alarm. 18.
Nocturnity is aggravating when it is purposely and deliberately sought by the accused to facilitate
the commission of the crime 19 or to prevent their being recognized or to insure unmolested
escape. 20 Nocturnidad must concur with the intent and design of the offender to capitalize on the
intrinsic impunity afforded by the darkness of night. 21 In the case at bar, the affidavit (exh. I-1) of
the accused Apduhan shows that he and his co-malefactors took advantage of the nighttime in the
perpetration of the offense as they waited until it was dark before they came out of their hiding
place to consummate their criminal designs.
In his decision, the trial judge recommends to, the President of the Republic the commutation of
the death sentence which he imposed on the accused to life imprisonment. The Solicitor General
supports this recommendation for executive clemency.
We find no compelling reason to justify such recommendation. Contrary to the trial judge's
observation, the accused's plea of guilty was far from "spontaneous" and "insistent". It will be
recalled that his initial plea was one of not guilty. Later, he changed his plea but with the persistent
condition that he be sentenced to life imprisonment, not death. It was only after much
equivocation that he finally decided to "just" plead guilty. Because his plea was still ambiguous,
the court a quo had to reopen the case to ascertain its real nature. Conceding, however, that his
plea was "spontaneous" and "insistent," such manifestation of sincere repentance cannot serve to
obliterate the attendant aggravating circumstances which patently reveal the accused's criminal
perversity.
It appears from a cursory reading of the decision under review that the trial judge also anchored
his recommendation on the ground that there is "the possibility that the firearm was used in order
to counteract the resistance of the deceased." This is no justification at all for executive clemency.
Firstly, the above observation is a mere conjecture - in the language of the presiding judge, a
"possibility." Secondly, even granting that the said observation relates to the actual happening, to
employ a firearm in subduing the lawful resistance of innocent persons is a criminal act by any
standard.
Even as we purge the decision under review of its errors, we must hasten to commend the trial
judge, the Hon. Hipolito Alo, for his earnest and patient efforts to forestall the entry of an
improvident plea of guilty by the accused Apduhan, notwithstanding that the latter was already
represented by a counsel de oficio and hence presumed to have been advised properly. Judge Alo
made sure that the accused clearly and fully understood the seriousness of the offense charged and
the severity of the penalty attached to it. When the accused proposed to confess his guilt, Judge
Alo repeatedly warned him that the death penalty might be imposed despite his plea of guilty. As
aforementioned, when it appeared that Apduhan's plea of guilty was ambiguous, Judge Alo
reopened the case to determine with definitiveness the nature of his plea.
The virtue of Judge Alo's efforts in ascertaining whether Apduhan pleaded guilty with full
knowledge of the significance and consequences of his act, recommends itself to all trial judges
who must refrain from accepting with alacrity an accused's plea of guilty, for while justice
demands a speedy administration, judges are duty bound to be extra solicitous in seeing to it that
when an accused pleads guilty he understands fully the meaning of his plea and the import of an
inevitable conviction.
As a final commentary on the criminal conduct of the accused herein, it must be emphasized that
the instant review was delayed for several years because he escaped from the New Bilibid Prisons
on June 17, 1963, less than six months after he was committed to the said penitentiary. He was
recommitted on July 10, 1964 with a new mittimus from the Court of First Instance of Leyte for
robbery in band in criminal case 10099, for which he was sentenced to serve a prison term of from
8 years and 1 day to 12 years and 1 day commencing on October 31, 1963. 22 His recommitment
was reported to this Court only on July 5, 1966.
Notwithstanding the foregoing disquisition, for failure to secure the required number of votes, the
penalty of death cannot be legally imposed. The penalty next lower in degree - reclusion perpetua
- should consequently be imposed on the accused.
ACCORDINGLY, with the modification that the death sentence imposed upon Apolonio Apduhan,
Jr. by the court a quo is reduced to reclusion perpetua, the judgment a quo is affirmed in all other
respects, without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and Fernando, JJ.,
concur.
Footnotes
1People vs. Casunuran, L-7654, August 16, 1956; People vs. Leyesa, L- 7842, August 30, 1956.
2Prior to Rep. Act 373, the scope of Art. 295, as amended by Rep. Act No. 12, extended to all the
subdivisions of Art. 294. 1wph1.t
3People vs. Bersamin, 88 Phil. 292.
4Philippine Congressional Record, House of Representatives, Vol. 22, June 29, 1946, p. 290.
5See note 3.
6Aquino, The Revised Penal Code, vol. II, p. 399.
7People vs. Noble, 77 Phil. 93.
8U.S. vs. Fitzgerald, 2 Phil. 419.
9See note 7.
10People vs. Pardo, 79 Phil. 568.
11See t.s.n. p. 3.
12People vs. Egido, 90 Phil. 762; People vs. Santos and Vicente, 105 Phil. 40.
13People vs. Acosta, 98 Phil. 642; People vs. Rapirap, 102 Phil. 863.
14U.S. vs. Leyba, 8 Phil. 671; People vs. Sebastian, 85 Phil. 602; People vs. Napili, 85 Phil. 521.
15Aquino, Vol. I, p. 286.
16L-16595, February 28, 1962.
1764 Phil. 860.
18Cited in Aquino, supra, p. 287.
19People vs. Alcala, 46 Phil. 739; People vs. Matbagon, 60 Phil. 887; People vs. Corpus, et al., L-
10104, January 28, 1961.
20U.S. vs. Billedo, 32 Phil. 575; People vs. Perez and De Leon, 32 Phil. 1663.
21People vs. Boyles, L-15308, May 29, 1964.
22Letter-Report from the Office of the Superintendent, New Bilibid Prison. 1wph1.t
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SUPREME COURT
Manila
EN BANC
G.R. No. L-51304-05 June 28, 1983
vs.
MARTIN MANDOLADO and JULIAN ORTILLANO, defendants-appellants.
Basilio V. Lanoria for defendants-appellants.
GUERRERO, J.:
The judgment of conviction rendered by the Court of First Instance of Cotabato, Branch I I,
Cotabato City dated June 28, 1979 sentencing the accused Martin Mandolado to the supreme
penalty of death in each case and the accused Julian Ortillano to imprisonment of six (6) years of
prision correccional as minimum to seventeen (17) years of prision mayor as maximum, being
merely an accessory, is before Us for mandatory review.
Under two (2) separate criminal informations dated January 5, 1978 filed by First Assistant
Provincial Fiscal Ismael G. Bagundang, the two accused- appellants, Martin Mandolado and
Julian Ortillano, draftees assigned with the Alpha Company, 3rd Infantry Battalion, Second
Infantry Division, Philippine Army with station at Pikit, North Cotabato, together with Anacleto
Simon and Conrado Erinada, trainees attached to the Headquarters & Headquarters Company, 3rd
Infantry Battalion, 2nd Infantry Division, Philippine Army, stationed at the Army Detachment
along Simuay Junction, Simuay, Sultan Kudarat, Maguindanao, were accused of murder for the
death of the victims Herminigildo Tenorio and his driver Nolasco Mendoza with the use of their
firearms in the afternoon of October 3. 1977 at Sultan Kudarat, Maguindanao, qualified with the
aggravating circumstances of treachery, evident premeditation and abuse of superior strength.
Specifically, in Criminal Case No. 561, the information charged the accused as follows:
That on or about October 3, 1977 in the afternoon, in the Municipality of Sultan Kudarat, Province
of Maguindanao, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused with intent to kill, conspiring, confederating and helping one another with
treachery, evident premeditation and the use of superior strength all armed with high powered
weapons did then and there willfully, unlawfully, and feloniously, and with the use of their guns
shoot Mr. Nolasco Mendoza hitting the latter on the different parts of his body causing his
instantaneous death.
Contrary to law with the aggravating circumstances of treachery, evident premeditation, and the
use of superior strength.
Similarly, in Criminal Case No. 562, the information reads:
That on or about October 3, 1977, in the afternoon, in the Municipality of Sultan Kudarat,
Province of Maguindanao, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, conspiring, confederating and helping one another with
treachery, evident premeditation and the use of superior strength all armed with high- powered
weapons did then and there willfully, unlawfully, and feloniously, and with the use of their guns
shoot Mr. Herminigildo Fajardo Tenorio hitting the latter on the different parts of his body causing
his instantaneous death.
Contrary to law with the aggravating circumstances of treachery, evident premeditation, and the
use of superior strength.
The charges having been allegedly committed at the same place and occasion and involving all the
four (4) accused in each instance were jointly tried per order of the trial court dated February 28,
1978 and after completion thereof, the two herein accused-appellants were found guilty while the
remaining two accused, Anacleto Simon and Conrado Erinada were acquitted. We quote hereunder
the dispositive portion of the decision now under review, to wit:
WHEREFORE, Martin Mandolado is found guilty beyond reasonable doubt of the crime of
murder in Criminal Case No. 562 for the killing of Herminigildo Fajardo Tenorio, and also in
Criminal Case No. 561 for the killing of Nolasco Mendoza, with the aggravating circumstances of
(1) 'advantage was taken of his being a draftee in the Philippine Army,' and (2) 'abuse of
confidence or obvious ungratefulness' without the presence of any mitigating circumstances and is
meted the following penalty, to wit;
In Criminal Case No. 562, for the killing of Herminigildo Tenorio, he is sentenced to suffer the
penalty of the crime in its maximum degree which is death.
He shall pay the heirs of the deceased the amount of P12,000.00 for the death of this victim, and
the amount of P20,000.00 as moral and exemplary damages.
In Criminal Case No. 561 for the killing of the driver, Nolasco Mendoza, he is similarly sentenced
to death.
He is to pay the heirs of said deceased the amount of P50,000.00 for the death of said victim, and
the amount of P100,000.00 as moral and exemplary damages.
In both Criminal Cases Nos. 561 and 562, on the grounds of reasonable doubt, Anacleto Simon
and Conrado Erinada are both found not guilty. This case against them (Anacleto Simon and
Conrado Erinada) is hereby dismissed.
In Criminal Cases Nos. 561 and 562, Julian Ortillano was found guilty as an accessory. He fired
his M-16 armalite whenever Martin Mandolado fired his machine gun and this could be for no
other purpose than to conceal or destroy the body of the crime in making it appear the victims
were fighting them or running away or that somebody else like the MNLF, rebels, NPA or bandits
committed the crime. Furthermore, in his own admission, the purpose of their attempt to leave
Mindanao for Bulacan after this incident was to hide and wait for the time when Martin
Mandolado could succeed in settling this case which is evidence that he assisted in the escape of
the principal of the crime.
He is hereby sentenced in each of both cases to serve an imprisonment term of six (6) years of
Prision Correccional as the
minimum penalty, to seventeen (17) years of Prision Mayor as the maximum penalty.
Martin Mandolado and Julian Ortillano are to pay jointly and solidarily the cost of this litigation.
SO ORDERED.
Given in the City of Cotabato, Philippines, the 28th day of June, 1979.
(SGD.) ALEJANDRO R. LEOPANDO
District Judge
The facts are as stated in the People's Brief as follows:
In the morning of October 3, 1977, Julian Ortillano, Martin Mandolado, Conrado Erinada and
Anacleto Simon, trainees/draftees of the Armed Forces of the Philippines and assigned to the 3rd
Infantry Battalion of the Philippine Army, were passengers of a bus bound for Midsayap, North
Cotabato (p. 8, t.s.n., Feb. 21, 1979). They alighted at the bus terminal in Midsayap. Being all in
uniform, armed and belonging to the same military outfit, they got acquainted and decided to
drink ESQ rum, at the said bus terminal (pp. 10-11, Supra).
While drinking, Conrado Erinada and Anacleto Simon decided to join appellants in going to Pikit,
North Cotabato, home base of appellants (p. 59, Id.). After drinking for about an hour, appellant
Mandolado got drunk and went inside the public market. Subsequently, he returned, grabbed his .
30 caliber machine gun and started firing. His companions tried to dissuade him but he
nonetheless continued firing his gun (pp. 11-12, Supra).
Sensing trouble, Conrado Erinada and Anacleto Simon ran away, hailed and boarded a passing
Ford Fiera with some passengers on board. Appellants followed and boarded also the vehicle (pp,
13-15, Supra). The soldiers forced the driver of the Ford Fiera to bring them to the Midsayap
crossing (p. 58, t.s.n., July 24,1978).
On their way, appellant Mandolado got his knife and tried to attack the driver (pp. 61-62, Supra).
After appellants alighted at said crossing, the Ford Fiera sped away. Appellant Mandolado fired
his .30 caliber machine gun at the speeding vehicle (p. 51, t.s.n., Jan. 17, 1979) hitting the right
side of the back of the driver's sister who was then on board said vehicle (p. 64, t.s.n., July 24,
1978).
While waiting for a ride at the Midsayap crossing a privately owned jeep, driven by Herminigildo
Tenorio, passed by. On board said jeep which was bound for Cotabato City were Nolasco
Mendoza and two (2) others, but the latter two alighted at said crossing. Conrado Erinada and
Anacleto Simon boarded the jeep. Thereafter, appellants ran after the jeep, shout at Herminigildo
Tenorio the driver thereof, to stop the vehicle and subsequently, both appellants Mandolado and
Ortillano boarded the jeep (p. 34, Supra). On the way, both appellants kept firing their guns (pp.
54-55, t.s.n., Jan. 17, 1979) prompting Herminigildo Tenorio to remark, "Kung hindi kayo
tatahimik, ibabangga ko itong jeep" (Sworn Statement, Exh. Q., Mandolado) which literally
means, "if you will not stop firing your guns, I will ram this jeep into something. "
Upon learning that the jeep was bound for Cotabato City and not Pikit, North Cotabato, appellant
Mandolado got angry, "cocked" his gun and ordered the driver to stop (pp. 36-38, Supra). While
the jeep was coming to a full stop, Conrado Simon and Anacleto Erinada immediately jumped off
the jeep and ran towards their detachment camp located some two hundred fifty meters away.
Appellants also got off the jeep. Thereupon, appellant Mandolado fired his .30 caliber machine
gun at and hit the occupants of the jeep (Sworn Statement, Exh. Q, Mandolado). Appellant
Ortillano likewise, fired his armalite, not at the occupants of said jeep but downwards hitting the
ground. These bursts of gunfire were heard by both Conrado Erinada and Anacleto Simon who
were then already about fifty meters away from the jeep while running towards their detachment
camp (pp. 38 and 42, t.s.n., Feb. 21, 1979). Although it was then raining torrentially, Anacleto
Simon recognized the bursts of gunfire as those of a machine gun (p. 43, Supra).
Appellants ran away from the scene and boarded another vehicle, alighting at Pinaring crossing.
Appellant Mandolado proceeded to a house where he left his belongings and changed his wet
uniform (p. 104, Supra). After about an hour, they rode in a "Hino" passenger bus bound for
Midsayap. On board said bus was a certain Mr. Leopoldo Jalandoni who was seated in front of the
appellants.
Upon reaching a BPH building near Nuling, Sultan Kudarat, the passengers of said bus were
ordered to alight at the military check point but appellant Mandolado did not alight (pp. 10-13,
t.s.n., Oct. 5, 1975). As the bus was not proceeding to Pikit, North Cotabato and upon advice of
Mr. Jalandoni, appellants alighted at the Midsayap crossing and waited for a bus bound for Pikit
(pp. 19-20, Supra).
Appellants were able to ride on a sand and gravel truck which took them to Pikit, North Cotabato,
arriving thereat at about 3:00 o'clock in the afternoon. At their camp, appellants returned their
firearms, but did not report the incident. In the evening, appellants attended a party at the Pikit
Elementary School (pp. 32-35, t.s.n., April 16, 1979). The following day, appellants proceeded to
Davao City but stopped at Kavocan where they stayed overnight.
Arriving at Davao City, the following morning, appellants went to see a movie and afterwards
proceeded to the Office of Doa Ana, a shipping firm (p. 40, Supra), where they saw a certain Sgt.
Villanueva who was then leaving for Luzon. Sgt. Villanueva informed the appellants that they
were suspects in the Tenorio and Mendoza killings. Immediately thereafter, appellant Mandolado
purchased two passenger tickets for Manila. The other ticket was for appellant Ortillano (pp. 120-
123, Supra). However, before appellants could board the ship bound for Manila, they were
apprehended by a team led by Lt. Licas (p. 45, Supra). Appellants were brought to Pikit, North
Cotabato where they were investigated by Lts. Licas and Maburang about the aforesaid killings.
The following day, appellants were brought to the headquarters of the 2nd MP Battalion at P.C.
Hill, Cotabato City where they were again investigated. In said investigation, after appellants were
duly apprised of their constitutional rights, they executed and signed their respective sworn
statements (Exhs. "O" and "R"). Appellant Mandolado admitted the killing of Tenorio and
Mendoza (Exh. "Q"); whereas appellant Ortillano admitted his presence at said killings and of his
having fired his armalite downwards after appellant Mandolado fired upon the killed the afore-
named victims (Exh. "R ").
Silverio Balderosa, on October 3, 1977, at about 12:30 p.m., was on board a "Pinoy" jeep. On his
way home to Midsayap, he passed a jeep parked along the highway towards the direction of
Cotabato City and about 250 meters away from the BPH building. The parked jeep was
surrounded by several persons. Alighting from the "pinoy" jeep, he went near the parked jeep to
see what happened. He saw the lifeless bodies of two persons, one sprawled along the highway
whom he recognized as Nolasco Mendoza and the other whom he recognized as Mr. Tenorio
slumped on the wheel of the parked jeep (pp. 13-15, t.s.n., July 24, 1978).
The postmortem examination conducted by Dr. Taeb Zailon, Municipal Health Officer of Sultan
Kudarat, Maguindanao, upon the bodies of Tenorio and Mendoza on October 3, 1977, were
reduced into writing and reads as follows:
POST-MORTEM EXAMINATION REPORT
Post-mortem examination was performed at the Rural Health Center, Sultan Kudarat,
Maguindanao on October 3, 1977 at around 3:30 p.m. in the presence of police officers of Sultan
Kudarat, Maguindanao and personnel of the Health Center and other persons in the vicinity.
PERTINENT PERSONAL DATA:
Name: HERMINIGILDO TENORIO
Sex: Male
Age: 55 yrs. old
Height: 5'5'
Weight: 145 lbs.
C.S.: Married
Residence: Midsayap, N. Cotabato
Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Avulsed cranial content at the level of forehead including eyeballs;
2. Wound-circular lacerate 3 inches in diameter T-T at lateral side of right deltoie region;
3. Wound-1 in. circular wound at the right forearm T-T 4 inches below the elbow;
4. Comminuted fracture at right leg just below the knee cap;
5. Comminuted fracture at right leg just above ankle;
6. Wound-1 in. circular non-penetrating at lateral side left arm;
7. Wound-1/2in.circularnon-penetrating at left region.
PROBABLE CAUSE OF DEATH
Hemorrhage severe secondary to multiple gunshot wounds.
Respectfully submitted:
(SGD.) TAEB ZAILON, M.D.
Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. "N")
POST-MORTEM EXAMINATION REPORT
Post-mortem examination report was performed at the Rural Health Center, Sultan Kudarat,
Maguindanao on October 3, 1977 at 3:30 p.m. in the presence of police officers, personnel of the
health center and other civilians.
PERTINENT PERSONAL DATA:
Name: NOLASCO MENDOZA
Sex: Male
Age: 45 years old
Height: 5'4"
Weight: 135 lbs.
C.S.: Married
Residence: Midsayap, North Cotabato
Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Wound -Circular, one inch wide, one inch above right eyebrow;
2. Wound-Circular, 1/2 inch wide, lateral part of left side of neck:
3. Wound-Circular, 3/4 inch wide, upper aspect of right deltoid muscle;
4. Wound-Circular, 1 1/2 inch wide, lateral aspect of right deltoid muscle; and
5. Wound-Circular, 1 1/2 inch wide, lateral aspect of right breast 3 inches below arm pit.
PROBABLE CAUSE OF DEATH
Wounds, gunshot, multiple shock, secondary hemorrhage, external-internal, extensive
Respectfully submitted:
(SGD.) TAEB A. ZAILON, M.D.
Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. "P")
Acting upon the letter request of the commanding officer, Lt. Rodolfo Villanueva, a ballistic test
was conducted by Sgt. Leon Platoon of the P.C. Crime Laboratory at Cotabato City, on the
firearms issued to appellant Mandolado, Anacleto Simon and Conrado Erinada. In said test, bullets
were fired from said guns and the empty shells, called test specimen (T05-1 to T-05-3), together
with the empty shells recovered from the scene of the crime called specimen evidence, and the 10
links of cal. 30 machine gun, were forwarded to Camp Crame for Ballistic Examination (pp. 20-
24, t.s.n., October 6, 1978). Sgt. Platoon marked the 8 shells of .30 caliber recovered from the
scene of the crime as HT-1 to HT-8 and the armalite shells as CM-9 to CM-13.
In the ballistic examination conducted by Reynaldo Pasatiempo of the Camp Crame Criminal
Laboratory, it was found that the caliber .30 shells recovered from the scene of the crime (Exh.
"HT-1" to "HT-8 ") reveal Identical impressions as the test specimens of five empty shells ("T-05-
1 to "T-05-3 ") fired from appellant Mandolado's machine gun. Whereas the armalite shells
recovered from the scene of the crime reveal non-identical impressions with the shells fired from
the armalites of Conrado Simon and Anacleto Erinada. He then concluded that the .30 caliber
shells recovered from the scene of the crime were fired from the same machine gun issued to
appellant Mandolado (pp. 60-62, t.s.n., October 6, 1978).
Appellants submit only one assigned error and that is, that the trial court erred in convicting
appellants Martin Mandolado and Julian Ortillano beyond reasonable doubt as principal and
accessory, respectively, of the crimes charged on the strength of the prosecution's evidence totally
disregarding the evidence of the defense. Appellants contend that their guilt was not proven
beyond reasonable doubt inasmuch as the circumstantial evidence of the prosecution merely
proved the fact of the deaths of Tenorio and Mendoza and not as to the actual perpetrators of the
crime; that the evidence of the prosecution being weak on its own, the only link of the appellant
Mandolado to the killings is his extra-judicial sworn confession, Exhibit "Q", which he stoutly
repudiates for being unlawfully taken under force and duress and in the failure of the investigator
to apprise him of his constitutional right to remain silent and to be assisted by counsel.
It is contended by the defense that although the ballistic expert and the firearm examiner testified
that they conducted ballistic and firearm examinations, respectively and that their finding was that
the caliber .30 empty shells were fired from the machine gun issued to Martin Mandolado, the
prosecution failed to prove that the "evidence specimen" (Exh. "HT-1" " to Exh. "HT-8") were the
empty shells recovered from the scene of the crime, the prosecution not having presented any
witness who recovered these empty shells. It was not shown that these empty shells were
recovered from the scene of the crime nor that the slugs of these empty shells caused the gunshot
wounds which resulted in the death of the victims, Hence, the only link of appellant Martin
Mandolado with the empty caliber .30 shells was the fact that these shells were fired from his
machine gun, yet the records disclose that Mandolado accidentally fired his machine gun at the
Mintranco Terminal in Midsayap, North Cotabato, which is not the scene of the crime, when he
threatened the person who tried to steal his bag.
Appellant Mandolado's claim that he was not previously apprised of his constitutional rights
before he executed his extra-judicial confession, Exh. "Q ", deserves scant consideration. His
claim is clearly belied by the opening statements appearing in his sworn statement, which reads,
thus:
Preliminaries: Dft Martin Mandolado please be informed that you are now under investigation by
this unit in connection with the Shooting incident that happened at National Highway particularly
near the vicinity of the BPH Office at Sultan Kudarat, Maguindanao on or about 031300H October
1977. Before I ask you any questions, you must understand your legal rights to wit: You have the
right to remain silent. Anything you say maybe used for or against you as evidence. You have the
right to the services of a lawyer of your own choice. If you cannot afford a lawyer and you want
one, a lawyer will be appointed for you before I ask you any questions.
Question: Are these all clearly understood by you?
Answer: Yes, sir.
2. Q Do you wish now to proceed with this investigation ever. in the absence of a lawyer of
your own choice?
A Yes sir.
3. Q Are you willing to give your statement without being forced, coerced, intimidated or
promised of any reward whatsoever?
A Yes sir.
4. Q Now that you are about to testify under oath, do you swear to tell the truth?
A Yes sir.
WAIVER
I have been advised of my legal right to remain silent; that anything I say maybe used as evidence
against me, and that I have the right to a lawyer to be present with me while I am being
questioned.
I understand these rights and I am willing to make a statement and answer to questions. I do not
want the assistance of a counsel and I understand and know what I am doing. No promises or
threats have been made to me and no force or pressure of any kind have been used against me.
(SGD.) MARTIN A. MANDOLADO
Dft 07A-2853 PA
(Affiant)
And with respect to the accused-appellant Julian Ortillano, the same preliminary questions were
made to him before his investigation and he answered similarly as his co-accused Mandolado
which is shown in Exhibit "R" and said Ortillano likewise executed the same waiver as that of his
co- accused, which is marked Exhibit "R-A".
The contention of both appellants that they signed their sworn statements (Exhibits Q and R)
because they were maltreated and forced, cannot be believed, not only for failure on their part to
present any evidence of compulsion, duress or violence but also because they even failed to
Identify their investigators who allegedly inflicted maltreatment to them, much less complained to
the officials who administered the oaths to their sworn statements of such maltreatment, if any.
Moreover, the sworn statements themselves contain significant and important details which the
affiants alone could have furnished, thereby clearly revealing the voluntariness of said statements
and rendering the same admissible as evidence. (People vs. Rosales, 108 SCRA 339; People vs.
Regular, 108 SCRA 23, 39; People vs. Tintero, 111 SCRA 714; People vs. Estero, 91 SCRA
93,99).
The conviction of appellant Mandolado for double murder appears to be based not only on his
extra-judicial confession (Exhibit Q) but also upon the following circumstances which proved that
he did shot and kill the victims, Tenorio and Mendoza, beyond peradventure of doubt. And these
are listed in the People's Brief, to wit: "(1) he repeatedly fired his .30 caliber machine gun while
intoxicated at the bus terminal in Midsayap (pp. 11-12, t.s.n., February 21, 1979); (2) that he fired
at the Ford Fierra which took them in the Midsayap junction (p. 51, Supra) hitting one of its
passengers (p. 64, t.s.n., July 24, 1978); (3) that Anacleto Simon while running away from the jeep
driven by the deceased, heard a burst of machine gun fire coming from the direction of the jeep (p.
42, t.s.n., February 21, 1979); (4) the result of the Ballistic examination showing that the shells
recovered from the scene of the crime were fired from the gun issued to appellant Mandolado (pp.
60-62, t.s.n., October 16, 1978); (5) the attempted flight of both appellants from justice (pp. 120-
123, t.s.n., April 16, 1979) and which act clearly indicates guilt for the 'wicked teeth where no man
pursueth but the righteous are as bold as the lion, and lastly (6) appellant's own admission before
the lower court that he killed Tenorio and Mendoza although he claims the same to be accidental
(pp. 7-8, t.s.n., October 6, 1978). "
The killing of the two victims in the case at bar is correctly qualified as murder, there being
present the qualifying circumstance of treachery which is alleged in the informations. There is
treachery when the offender commits any of the crimes against the person, employing means,
methods or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make. (Art. 14,
paragraph 16, Revised Penal Code). The prosecution evidence is quite clear and explicit that when
appellants alighted from the jeep, the accused Mandolado immediately fired his .30 caliber
machine gun at the occupants of the jeep, the victims Nolasco Mendoza and Herminigildo
Tenorio, and both of them died instantaneously on the spot, and from this sudden means or manner
of attack, it can reasonably be concluded that it tended directly to insure its execution without risk
to the appellant-assailant and also deprive the victims of any chance or opportunity to defend
themselves. We also rule that the particular means or manner employed by the appellant-assailant
was consciously or deliberately sought and not a mere accidental circumstance resorted to on the
spur of the moment on the basis of the evidence that the appellant had previously and repeatedly
fired his .30 caliber machine gun at the bus terminal in Midsayap and had also fired the machine
gun at the Ford Fiera which took them to Midsayap junction and that appellants waited for
sometime riding on board the jeep driven by Tenorio before they ordered the jeep to stop, alight
therefrom and then shoot the occupants therein.
While the informations allege as aggravating circumstances that of evident premeditation and the
use of superior strength, aside from treachery, We cannot agree with the finding of the trial court
that the aggravating circumstances of (1) advantage was taken of his being a Draftee in the
Philippine Army, and (2) abuse of confidence or obvious ungratefulness were present in the
commission of the crime.
While it may be true that a soldier in the Armed Forces of the Philippines is deemed as one who
holds public position (U.S. vs. Gimenea, 24 Phil. 464, where a constabulary soldier was held to be
a public officer), there is no persuasive showing that herein appellants being draftees of the Army,
in full military uniform and carrying their high-powered firearms, facilitated the commission of
the crimes they were charged. It may be conceded that as draftees, the accused could easily hitch
hike with private vehicles, as in the case of the deceased Tenorio's owner-type jeep, but there is no
evidence that when they stopped the jeep the accused already intended to shoot the occupants of
the vehicle. As it was held in People Pantoja, 25 SCRA 468, 471 which We reiterate that "There is
nothing to show that the appellant took advantage of his being a sergeant in the Philippine Army
in order to commit the crimes. The mere fact that he was in fatigue uniform and had an army rifle
at the time is not sufficient to establish that he misused his public position in the commission of
the crimes ... "
There is also merit in appellants' contention that there could be no abuse of confidence as the
evidence on record showed the lack of confidence by the victims to the appellants, that this
confidence was abused, and that the abuse of the confidence facilitated the commission of the
crimes. In order that abuse of confidence be deemed as aggravating, it is necessary that "there
exists a relation of trust and confidence between the accused and one against whom the crime was
committed and the accused made use of such a relationship to commit the crime." (People vs.
Comendador, 100 SCRA 155, 172). It is also essential that the confidence between the parties
must be immediate and personal such as would give that accused some advantage or make it easier
for him to commit the crime; that such confidence was a means of facilitating the commission of
the crime, the culprit taking advantage of the offended party's belief that the former would not
abuse said confidence (People vs. Hanasan, 29 SCRA 534). In the instant case, there is absolutely
no showing of any personal or immediate relationship upon which confidence might rest between
the victims and the assailants who had just met each other then. Consequently, no confidence and
abuse thereof could have facilitated the crimes.
Similarly, there could have been no obvious ungratefulness in the commission of the crime for the
simple reason that the requisite trust of the victims upon the accused prior to the criminal act and
the breach thereof as contemplated under Article 14, par. 4 of the Revised Penal Code are
manifestly lacking or non-existent. In all likelihood, the accused Army men in their uniforms and
holding their high-powered firearms cowed the victims into boarding their jeep for a ride at
machine gun point which certainly is no source of gratefulness or appreciation.
The finding of the trial court that: "There is no doubt about Martin Mandolado's state of
intoxication. He was so drunk that even his three (3) companions armed with M-16 armalite feared
him. The same thing was true with the MPs," should credit said accused with the mitigating
circumstance of drunkenness but which the trial court decision failed to appreciate in his favor.
Accordingly, the penalty to be imposed upon the accused-appellant Mandolado shall be reduced in
the computation thereof.
With respect to the accused-appellant Julian Ortillano who was found guilty as an accessory in
Criminal Cases No. 561 and No. 562 for having fired his M-16 armalite whenever Martin
Mandolado fired his machine gun and, according to the court, this could be for no other purpose
than to conceal or destroy the body of the crime and making it appear that the victims were
fighting them or running away or that somebody else like the MNLF, rebels, NPA or bandits
committed the crime, and for assisting in the escape of the principal Martin Mandolado) of the
crime and sentenced in each of both cases to serve imprisonment for a term of six (6) years of
prision correccional as minimum to seventeen (17) years of prision mayor as maximum, We find
and hold that the accused-appellant Julian Ortillano should be convicted, not as an accessory, but
as an accomplice.
An accomplice cooperates in the execution of the offense by previous or simultaneous acts,
provided he has no direct participation in its execution or does not force or induce others to
commit it, or his cooperation is not indispensable to its accomplishment (Art. 18, Revised Penal
Code).
To hold him liable, upon the other hand, as an accomplice, it must be shown that he had
knowledge of the criminal intention of the principal, which may be demonstrated by previous or
simultaneous acts which contributes to the commission of the offense as aid thereto whether
physical or moral (People vs. Silvestre, et al., 56 Phil, 353, 356). As aptly stated in People vs.
Tamayo (44 Phil. 38, 49): 'It is an essential condition to the existence of complicity, not only that
there should be a relation between the acts done by the principal and those attributed to the person
charged as accomplice, but it is further necessary that the latter, with knowledge of the criminal
intent, should cooperate with the intention of supplying material or moral aid in the execution of
the crime in an efficacious way. (People vs. Custodia, 47 SCRA 289,303 [19721).
In the case at bar, Ortillano, by his acts, showed knowledge of the criminal design of Mandolado.
He was present when Mandolado tried to attack the driver of the Ford Fierra with a knife and fired
at the vehicle hitting a female passenger (p. 4, Decision). When Mandolado got angry and
"cocked" his gun and ordered Tenorio to stop the jeep, their two other companions, Simon and
Erinada, immediately jumped off the jeep and ran away, but Ortillano stayed. In a display of unity
with Mandolado, Ortillano fired his armalite while they were riding in the jeep of the victim (p. 5,
Decision). And Ortillano's act of firing his gun towards the ground manifested his concurrence
with the criminal intent. In other words, Ortillano's simultaneous acts supplied, if not material,
moral aid in the execution of the crime in an efficacious way. Ortillano's presence served to
encourage Mandolado, the principal, or to increase the odds against the victims (U.S. vs. Guevara,
2 Phil. 528 [1903]; People vs. Silvestre and Atienza, 56 Phil. 353 [1931]).
In convicting the accused Ortillano as an accomplice, We, however, appreciate the mitigating
circumstance of drunkenness in his favor, the same as We did to his co-accused Martin
Mandolado, the principal defendant.
In resume, the crime committed by the accused-appellant Martin Mandolado is murder, qualified
by treachery. There being no aggravating circumstance but having found and appreciated
drunkenness which is not habitual as a mitigating circumstance, the penalty prescribed under
Article 248 of the Revised Penal Code which is reclusion temporal in its maximum period to death
shall be imposed in its minimum period. Applying the Indeterminate Sentence Law, the accused
shall be sentenced to imprisonment of ten (10) years and one (;) day of prision mayor as minimum
to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum in
each case.
As to the accused-appellant Julian Ortillano, convicted as an accomplice to the crime of murder,
and appreciating in his favor the mitigating circumstance of drunkenness which is not habitual, the
penalty to be imposed upon him shall be one degree lower than that imposed for murder (Article
52, Revised Penal Code), which will be in the minimum period. Applying the Indeterminate
Sentence Law, the accused Ortillano shall be sentenced to imprisonment of four (4) years, two (2)
months of prision correccional as minimum to ten (10) years and one (1) day of prision mayor as
maximum in each case.
With respect to damages, for the death of Herminigildo Tenorio, the award of P12,000.00 as
compensatory damages and P 20,000.00 for moral damages is hereby affirmed.
For the death of Nolasco Mendoza, We reduce the award of P50,000.00 as compensatory damages
to P12,000.00 We also reduce the award of P100,000.00 as moral damages to P20,000.00.
The liability of the appellants for the above damages which shall be paid to the heirs of the victims
shall be in solidum (Article 110, par. 1, Revised Penal Code).
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the trial court is hereby
MODIFIED. The accused-appellant Martin Mandolado is hereby found guilty beyond reasonable
doubt of the crime of murder in Criminal Case No. 561 for the killing of Nolasco Mendoza and in
Criminal Case No. 562, for the killing of Herminigildo Tenorio. There being no aggravating
circumstance but having found and appreciated drunkenness which is not habitual as a mitigating
circumstance, said accused is hereby sentenced to suffer imprisonment of ten (10) years and one
(1) day of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of
reclusion temporal as maximum in each of the two cases.
The accused-appellant Julian Ortillano is hereby found guilty beyond reasonable doubt as
accomplice in the crime of murder in Criminal Case No. 561 for the killing of Nolasco Mendoza
and in Criminal Case No. 562 for the killing of Herminigildo Tenorio. Similarly, there being no
aggravating circumstance but having found and appreciated the mitigating circumstance of
drunkenness which is not habitual in his favor, said accused is hereby sentenced to suffer
imprisonment of four (4) years, two (2) months of prision correccional as minimum to ten (10)
years and one (1) day of prision mayor as maximum in each case.
In Criminal Case No. 561 for the killing of Nolasco Mendoza, We sentence both accused to pay
the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 as moral damages.
The liability of the accused shall be in solidum.
In Criminal Case No. 562 for the killing of Herminigildo Tenorio, We sentence both accused to
pay the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 for moral
damages. The liability of the accused shall also be in solidum.
Costs against the appellants. Judgment modified.
SO ORDERED.
Fernando (C.J.), Teehankee, Makasiar, Concepcion, Jr., Abad Santos, De Castro, Melencio-
Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Aquino, J., took no part.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-30449 October 31, 1979
vs.
ANTONIO GARCIA Y CABARSE alias "TONY MANOK" and REYNALDO ARVISO V
REBELLEZA alias "RENE BISUGO," defendants-appellants.
Wenceslao B. Trinidad for appellants.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor
Adolfo J. Diaz for appellee.
ABAD SANTOS, J.:

This is an appeal from the decision of April 17, 1969 by the Circuit Criminal Court at Pasig, Rizal,
which found the accused guilty of murder and sentenced them to the death penalty.
The legal verdict hinges on the testimony of the lone eyewitness for the prosecution, Mrs. Corazon
Dioquino Paterno, sister of the deceased, Apolonio Dioquino, Jr. She testified that at the time of
the incident, she resided at Ventanilla Street, Pasay City. She lived at Pasay City for about five
months before moving to another dwelling at Timog Avenue, Quezon City. While residing at
Pasay City, she conceived a child and during this period, it was not unusual for her, accompanied
by her husband, to step out of the house in the wee hours of the morning. They set out on these
irregular walks about five times.
During her residence at Pasay City, her brother Apolonio visited her family for about twenty
times. Sometimes her brother would stay instead at their parents' house at Muntinlupa, Rizal. He
usually spent his weekends in his residence at Bo. Balubad, Porac, Pampanga. Apolonio and her
husband were very close to each other; whenever Apolonio paid them a visit, he usually slept in
the house and sought their help on various problems.
Before the incident which gave rise to this case, Corazon's husband informed her that he saw
Apolonio engaged in a drinking spree with his gang in front of an establishment known as Bill's
Place at M. de la Cruz Street. Pasay City. In her sworn statement before the Pasay City Police
executed on November 3, 1968, Corazon surmised that her husband must have been painting the
town red ("nag good time") in that same place. Upon learning this information from her husband,
Corazon obtained permission to leave the house at 3:00 a.m. so she could fetch her brother. At that
time, she had not been aware that Apolonio was in Pasay City; she had been of the belief that he
was with his family in Pampanga. She went to fetch him because she wanted him to escape the
untoward influence of his gang. In explaining the rationale for her noctural mission, she employed
in her sworn statement the following language: "Dahil itong si Junior ay meron na kaming
nabalitaan na naaakay ng barkada niya sa paggawa ng hindi mabuti."
On her way, as she rounded the corner of P.C. Santos Street, Corazon saw her brother fleeing a
group of about seven persons, including the two accused, Antonio Garcia and Reynaldo Arviso.
She recognized the two accused because they were former gangmates of her brother; in fact, she
knew them before the incident by their aliases of "Tony Manok" and "Rene Bisugo, " respectively.
Corazon saw that the chase was led by the two accused, with Antonio carrying a long sharp
instrument. Later, in the course of giving her sworn statement before the Pasay City Police on ,
November 3, 1968, Corazon positively Identified Antonio and Reynaldo, who were then at the
office of the General Investigation Section, Secret Service Division, Pasay City Police
Department. She also stated that if she saw the other members of the group again, perhaps she
could likewise Identify them. At the trial, Corazon likewise pointed out the two accused. During
the incident, she exerted efforts to Identify the other group members, taking care to conceal herself
as she did so. She heard a gunshot which caused her to seek cover.
When she ventured to look from where she was hiding, about 20 meters away, she saw the group
catch up with her brother and maltreat him. Some beat him with pieces of wood, others boxed
him. Immediately afterwards, the group scampered away in different directions. Antonio was left
behind. He was sitting astride the prostrate figure of Apolonio, stabbing the latter in the back with
his long knife. Corazon was not able to observe where Antonio later fled, for she could hardly bear
to witness the scene.
When Corazon mustered the courage to approach her brother, she saw that he was bathed in a pool
of his own blood. The incident threw her in a state of nervous confusion, and she resolved to
report the incident to her younger sister, who lived at Lakandula Street, Pasay City. Her sister in
turn decided to break the news to their father at Muntinlupa.
Subsequently, Corazon learned that the police authorities were searching for her brother's
gangmates for having killed him. She also learned that the suspects were in hiding. On the same
day October 19, 1968 accompanied by her family, she went at 2:00 p.m. to the Police
Department to inquire about her brother's corpse. They were directed to the Funeraria Popular,
where an autopsy was held. Sometime later, on November 1, 1968, she transferred residence to
Quezon City.
Dr. Mariano Cueva, Jr. testified that he conducted a post-mortem examination on the cadaver of
the decedent Apolonio, and that he prepared the corresponding Necropsy Report. Dr. Cueva found
that the deceased suffered 22 stab wounds in the different portions of his hips; in the front portion
of the chest and neck; in the back portion of the torso; and in the right hand. He testified that the
wounds sustained by the deceased brought about a massive hemorrhage which caused death. He
also testified that it is possible that the instrument marked as Exhibit "B" could have been used in
inflicting the multiple stab wounds sustained by the deceased, except the stab wounds on the neck.
Both the accused took refuge in the defense of alibi. Antonio Garcia claimed that at that time of
the incident starting with the chase and ending with the victim's death in the morning of
October 19, 1968, he was at a place called Pacita's Canteen which adjoins Bill's Place at M, de la
Cruz Street. Reynaldo Arviso claimed that in the evening of the preceding night (October 18,
1968) he went on a drinking spree with his friends at Pacita's Canteen. He went home at 10:30
p.m. and slept up to 7:00 a.m. of October 19, 1968. From 7:00 a.m. of that day, he performed his
duties as a bus conductor by calling for passengers near Pacita's Canteen.
The trial court pinpointed the issue as revolving around the Identity of the persons who
participated in the killing of the deceased. it banked on the testimony of the witness, Corazon
Dioquino, who positively Identified the accused as participants in the attack. Noting that "the
defense did not even attempt to present any evil motive on the part of the witness," the court
concluded that "the two accused took part in the perpetuation of the crime charged." It gave short
shrift to the defense of alibi presented by the two accused, noting that, by their own admission, the
two accused were residents of the vicinity of the crime.
In respect of the circumstances attending the crime it said:
But considering the aggravating circumstances of nighttime; superior strength; and treachery,
which three aggravating circumstances had been sufficiently established by the prosecution, the
same cannot be offset by said voluntary surrender to a person in authority of his agent, plus the
uncontested fact that deceased, Apolonio Dioquino, Jr. suffered no less than 22 stab wounds,
convincing evidence of the apparent criminal perversity of the accused, the court, therefore, has no
alternative but to impose the supreme penalty.
And rendered judgment as follows:
IN VIEW OF THE FOREGOING, the Court finds the accused, Antonio Garcia v Cabarse and
Reynaldo Arviso y Rebelleza, GUILTY, beyond reasonable doubt, of the crime of Murder under
Article 248, of the Revised Penal Code, as charged under Article 248, of the Revised Penal Code,
as charged in the information, and considering the aggravating circumstances surrounding the
commission of the crime, each one of them is hereby sentenced to suffer the penalty of DEATH.
The two accused are further ordered to indemnify, the heirs of the deceased, Apolonio Dioquino,
Jr. in the amount of TWELVE 'THOUSAND (P12,000,00) PESOS, jointly and severally and to
pay their proportionate share of the costs.
In their Brief, the accused contended that the lower court erred: in not considering nighttime and
superior strength as absorbed in treachery: in finding nighttime as an aggravating circumstance
despite absolute absence of evidence that nighttime was purposely sought to insure the execution
of the crime; in finding superior strength as an aggravating circumstance despite absence of
evidence to sustain such a finding; in finding treachery as an aggravating circumstance despite
absence of evidence to that effect; in not stating the qualifying circumstance of the alleged crime;
in holding that the accused Reynaldo Arviso stabbed and hit the victim when there is no evidence
as to the participation of the said accused Arviso in the execution of the alleged crime; and in
failing to consider the material inconsistencies, prejudice and other circumstances in the
uncorroborated testimony of the only eyewitness, rendering said testimony not worthy of belief.
The assignment of errors by the accused is anchored on their attempt to discredit the lone
eyewitness for the prosecution, a function which, if successfully undertaken, would totally
obliterate the nexus between the accused and the crime. The defense vigorously maintained that
the testimony of the only eyewitness is a fabrication, and that she was in fact absent from the
scene which she described in both her sworn statement and in her testimony at the trial.
The defense asserted that Corazon Dioquino's testimony was riddled by material inconsistencies.
The defense sought to capitalize on the discrepancy of a sketch made by Corazon and the sketch
made by Pasay City Electrical Engineer Jaime Arriola. Corazon's sketch shows Juan Sumulong
Elementary School to be right in front of P.C. Santos Street; while Arriola's sketch shows that the
school is about 135 meters from the corner of the street. The defense contended that the
discrepancy was a deliberate falsehood on the part of the witness,
Corazon testified that she was near the corner of P.C. Santos Street when she saw her brother
under chase in front of the school, and that she met the group in front of the school in a matter of
five seconds, more or less. The defense assailed her testimony on this point as incredible on the
ground that the distance between the point where she saw her brother being chased, up to the point
where she met them, is 135 meters, and no human being can cover that distance in five seconds.
Moreover, Corazon testified that she was 20 meters away from the place where the accused caught
up with her brother. Again, the defense criticized her testimony in this respect by pointing out that
the true distance is 175 meters.
The defense insisted that Corazon's sketch of the locale of the crime (Exhibit "1") constitutes "the
high point of falsity of her testimony." The defense sought to substantiate this claim by arguing
that from her sketch, it appears that she never crossed paths with her brother or his pursuers. The
witness testified that she saw her brother at the point which is four to five meters from the corner
of P.C. Santos Street. Yet she also testified that she saw the incident from 20 meters. The witness
claimed she hid after hearing the shot at a point which is 170 meters from the scene of the crime.
The defense argued that she could not have covered the distance in such a short time, and that this
belies her claim that she was only 20 meters from the scene of the crime. The defense pointed out
that Arriola's sketch (Exhibit "2") shows that the school is 135 meters from the scene of the crime,
and the point where the witness claimed she viewed the crime is 170 meters from the scene of the
crime thus giving the lie to her claim that she was 20 meters away.
The alleged inconsistencies in Corazon's testimony which the defense makes much of are
not irreconcilable with the physical facts, At the outset, it should not be overlooked that Corazon
was testifying as an eyewitness to the traumatic incident by which her brother met a violent death
at the hands of a mob. Naturally, Corazon can not be expected to deliver a testimony which passes
microscopic scrutiny and scrupulous armchair analysis of the facts, conducted under
circumstances far removed from the turbulence and emotional color of the event as it actually
transpired. Al contrario, if Corazon's testimony were meticulously accurate with respect to
distance covered and the time taken to negotiate it, an impartial observer would wonder whether
such exactitude were not the product of previous rehearsal, if not of fabrication. In times of stress,
the human mind is frequently overpowered by the ebb and flow of emotions in turmoil; and it is
only judicious to take into consideration the natural manifestations of human conduct, when the
physical senses are subdued by the psychological state of the individual.
Corazon was a resident of Pasay City for only about five months. She testified that she is not
familiar with the streets along M. de la Cruz Street. Moreover, Corazon did not categorically
testify that she covered the distance of 135 meters in five seconds. Mole accurately, she testified
that she walked for a period of from five to ten seconds, more or less. Put in this way, the period
was sufficient to allow her to negotiate the distance. Moreover, Corazon did not stay rooted to one
spot while the incident was taking place, but surreptitiously edged her way up to Magtibay Street,
which is closer to the place of the killing.
The defense also claims that the delay which Corazon allowed to transpire, before reporting the
crime to the authorities and giving her sworn statement (on November 3, 1968), is indicative of
fabrication. The killing took place before dawn of October 19, 1968, In the afternoon of the same
day, Corazon and her family went to the Police Department to inquire about the remains of her
brother. Corazon already knew that the police were taking steps to round up the killers. She
incurred no fault in waiting until the culprits were arrested before confronting them and giving her
statement. It would have been the better part of legal procedure if she had given her statement
earlier; but since she was only a 22-year old housekeeper at that tune, she can not be held to a
higher standard of discretion.
The defense further contends that the failure to present Corazon's husband in court indicates that
Corazon was not actually at the scene of the crime at 3:00 o'clock in the morning. It the defense
felt that the husband had a contribution to make in the cause of truth, there was nothing which
prevented them from compelling his process by summons. This they failed to do; and their
omission should not be taken to reflect adversely on the prosecution, who evidently believed that
the husband's testimony was unnecessary,
Finally, the defense claims that it was unnatural for Corazon, after viewing her brother's body, to
proceed to her sister's house one kilometer away, instead of returning to her own house, which was
just a block or so away. It is not unnatural for a witness to a gruesome event, to choose to confer
with a person bound to her by ties of consanguinity, even if such a conference necessitates that she
traverse a longer distance. The exercise of judgment, on the spot, should not be gauged by reason
applied in hindsight with a metrical yard stick.
The next major burden which the defense undertook to assume was to contend that the accused
Reynaldo Arviso is innocent because there is no evidence as to his participation in the execution of
the crime. It is claimed that there is absolute absence of evidence to show that Reynaldo was a
direct participant and that the only evidence against him is that he was seen pursuing the victim.
However, the finding of Reynaldo's guilt stems, not from his direct participation in the criminal
execution, but from his participation in the conspiracy to kill the deceased. His participation in the
conspiracy is supported by Corazon's testimony that he and Antonio were the leaders of the pack
following closely at the heels of the victim.
It is well established that conspiracy may be inferred from the acts of the accused themselves,
when such acts point to a joint purpose and design. A concerted assault upon the victim by the
defendants may indicate conspiracy. (PP v. Monroy & Idica, L-11177, Oct. 30, 1958, 104 Phil.
759). Conspiracy exists if, at the time of the commission of the offense, the defendants had the
same criminal purpose and were united in its execution. (PP v. Datu Dima Binahasing, L-4837,
April 28, 1956, 98 Phil. 902). Those who are members of the band of malefactors by which a
murder is committed and are present at the time and place of the commission of the crime, thus
contributing by their presence to augment the power of the band and to aid in the successful
realization of the crime, are guilty as principals even if they took no part in the material act of
killing the deceased. (US v. Abelinde, No. 945, Dec. 10, 1902, 1 Phil. 568; People v. Carunungan,
L-13283, Sept. 30, 1960, 109 Phil. 534). To establish conspiracy, it is not essential that there be
proof as to previous agreement to commit a crime. It is sufficient that the malefactors have acted
in concert, pursuant to the same objective. (PP vs. San Luis, L-2365, May 29, 1950, 86 Phil. 485).
Conspiracy need not be established by direct evidence of acts charged, but may and generally
must be proven by a number of indefinite acts, conditions and circumstances which vary
according to the purpose to be accomplished. If it be proved that two or more persons aimed by
their acts towards accomplishment of the same unlawful object, each doing a part. so that their
acts, though apparently independent, were in fact connected and cooperative, indicating a
closeness of personal association and concurrence of sentiment, a conspiracy maybe inferred
though no actual meeting among them to concert is proven (PP v. Colman L-6652-54, Feb. 28,
1958, 103 Phil. 6). A conspiracy may be entered into after the commencement of overt acts
leading to the consummation of the crime. (PP v. Barredo, L-2728, Dec. 29, 1950, 87 Phil. 800).
Conspiracy implies concert of design and not participation in every detail of execution (PP v.
Carbonel, L-24177, March 15, 1926, 48 Phil. 868; PP v. Danan, L-1766, March 31, 1949, 83 Phil.
252).
When a group of seven men, more or less, give chase to a single unarmed individual running for
his life, and they overtake him and inflict wounds on his body by means of shooting, stabbing, and
hitting with pieces of wood, there is conspiracy to kill; and it does not detract from their status as
conspirators that there is no evidence of previous agreement, it being sufficient that their wills
have concurred and they labored to achieve the same end.
The defense submits that the failure of the lower court to specify the qualifying circumstance in
the crime of murder is violative of the Constitution and the Rules of Court. We find no such
infirmity. Since the principle concerned is "readily understood from the facts, the conclusion and
the penalty posed., an express specification of the statute or exposition of the law is not
necessary." (People vs. Silo, L-7916, May 25, 1956, 99 Phil. 216). In the absence of a
specification by the trial court, the defense surmised that the qualifying circumstance in this case
is evident premeditation: but the defense argued that evident premeditation was not shown. We
agree. Under normal conditions, conspiracy generally presupposes premeditation. But in the case
of implied conspiracy, evident premeditation may not be appreciated, in the absence of proof as to
how and when the plan to kill the victim was hatched or what time elapsed before it was carried
out, so that it can not be determined if the accused had "sufficient time between its inception and
its fulfillment dispassionately to consider and accept the consequences." There should be a
showing that the accused had the opportunity for reflection and persisted in executing his criminal
design. (PP v. Custodia, L-7442, October 24,1955, 97 Phil. 698; PP v. Mendoza and Sinu-ag, L-
4146 and L-4147, March 28, 1952, 91 Phil. 58; PP v. Yturiaga, L-2816, May 31, 1950, 86 Phil.
534; PP v. Lozada, No. 46998, Nov. 16, 1940, 70 Phil. 525; PP v. Upao Moro, L-6771, May 28,
1957, Phil. 101 Phil. 1226; PP v. Sakam, No. 41566, Dec. 7, 1934, 61 Phil. 27: PP v. Peralta, L-
19069, Oct. 29, 1968, 25 SCRA 759; PP v. Pareja, L-21937, Nov. 29, 1969, 30 SCRA 693).
Even in the absence of evident premeditation, the crime of murder in this case might still be
qualified by treachery, which is alleged in the information. But the defense argued that treachery
was not present. We are so convinced. It is an elementary axiom that treachery can in no way be
presumed but must be fully proven. (US v. Asilo, No. 1957, Jan. 30, 1905, 4 Phil, 175; US v.
Arciga, No. 1129, April 6, 1903, 2 Phil. 110; PP v. Durante, No. 31101, Aug. 23, 1929, 53 Phil.
363; PP v. Pelago, L-24884, Aug. 31, 1968, 24 SCRA 1027), Where the manner of the attack was
not proven, the defendant should be given the benefit of the doubt, and the crime should be
considered homicide only. (Carpio, 83 Phil. 509; Amansec, So Phil, 424).
In People vs. Metran (L-4205, July 27, 1951, 89 Phil. 543). the aggravating circumstances of aid
of armed men, abuse of superiority, and nocturnity, were considered as constituting treachery,
which qualified the crime as murder, since there was no direct evidence as to the manner of the
attack. However, in this case we believe that the correct qualifying circumstance is not treachery,
but abuse of superiority. Here we are confronted with a helpless victim killed by assailants
superior to him in arms and in numbers. But the attack was not sudden nor unexpected, and the
element of surprise was lacking. The victim could have made a defense; hence, the assault
involved some risk to the assailants. There being no showing when the intent to kill was formed, it
can not be said that treachery has been proven. We believe the correct rule is found in People vs.
Proceso Bustos (No. 17763, July 23, 1923, 45 Phil. 9), where alevosia was not appreciated
because it was deemed included in abuse of superiority.
We find that abuse of superiority attended the offense, following a long line of cases which made
this finding on parallel facts Our jurisprudence is exemplified by the holding that where four
persons attacked an unarmed victim but there was no proof as to how the attack commenced and
treachery was not proven, the fact that there were four assailants would constitute abuse of
superiority. (People vs. Lasada, No. 6742, Jan. 26, 1912, 21 Phil. 287; US v. Banagale, No. 7870,
Jan. 10, 1913, 24 Phil. 69). However, the information does not allege the qualifying circumstance
of abuse of superiority; hence, this circumstance can only be Created as generic aggravating.
(People v. Acusar, L-1798, Dee. 29, 1948, 82 Phil. 490; People v. Beje, L-8245, July 19, 1956, 99
Phil. 1052; People v. Bautista, L-23303, May 20, 1969, 28 SCRA 184).
The offense took place at 3:00 o'clock in the morning. It may therefore be said that it was
committed at night, which covers the period from sunset to sunrise, according to the New Civil
Code, Article 13. Is this basis for finding that nocturnity is aggravating? The Revised Penal Code,
Article 14, provides that it is an aggravating circumstance when the crime is committed in the
nighttime, whenever nocturnity may facilitate the commission of the offense. There are two tests
for nocturnity as an aggravating circumstance: the objective test, under which nocturnity is
aggravating because it facilitates the commission of the offense; and the subjective test, under
which nocturnity is aggravating because it was purposely sought by the offender. These two tests
should be applied in the alternative.
In this case, the subjective test is not passed because there is no showing that the accused
purposely sought the cover of night time. Next, we proceed and apply the objective test, to
determine whether nocturnity facilitated the killing of the victim. A group of men were engaged in
a drinking spree, in the course of which one of them fled, chased by seven others. The criminal
assault on the victim at 3:00 a.m. was invited by nocturnal cover, which handicapped the view of
eyewitnesses and encouraged impunity by persuading the malefactors that it would be difficult to
determine their Identity because of the darkness and the relative scarcity of people in the streets.
There circumstances combine to pass the objective test, and e find that nocturnity is aggravating
because it facilitated the commission of the offense. Nocturnity enticed those with the lust to kill
to follow their impulses with the false courage born out of the belief that they could not be readily
Identified.
The information alleges that the crime of murder was attended by the two qualifying
circumstances of treachery and evident premeditation. Neither of these qualifying circumstances
was proved; hence, the killing can not be qualified into murder, and constitutes instead the crime
of homicide, which is punished by reclusion temporal. It is not controverted that the accused
voluntarily surrendered to the authorities; they are therefore entitled to the mitigating circumstance
of voluntary surrender. This lone mitigating circumstance offset by the two generic aggravating
circumstances of abuse of superiority and nocturnity, produces the result that in the crime of
homicide, one aggravating circumstance remains.
WHEREFORE, the judgment of the court a quo is hereby modified in that the two accused,
Antonio Garcia y Cabarse and Reynaldo Arviso y Rebelleza, are sentenced to undergo an
indeterminate imprisonment of 10 years as minimum to 18 years as maximum, but in all other
respects affirmed.
SO ORDERED.
Fernando, C.J., Barredo, Makasiar, Antonio, Aquino, Concepcion, Jr., Santos Fernandez, Guerrero,
De Castro and -Melencio-Herrera, JJ., concur.
Teehankee J., took no part.

FIRST DIVISION
PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,
- versus -
ARMANDO RODAS[1] and JOSE RODAS, SR.,[2]

Accused-Appellants.
G.R. No. 175881
Present:
YNARES-SANTIAGO,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
Promulgated:
August 28, 2007

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the Decision[3] of the Court of Appeals in CA-G.R. CR-HC No. 00289
which affirmed in toto the decision[4] of the Regional Trial Court (RTC) of Sindangan,
Zamboanga del Norte, Branch XI, convicting accused-appellants Armando Rodas and Jose Rodas,
Sr. of the crime of Murder.
For the death of one Titing Asenda, accused-appellant Jose Rodas, Sr., together with his sons
Charlito, Armando, and Jose Jr., all surnamed Rodas, were charged with murder in an information
which reads:
That, in the evening, on or about the 9th day of August, 1996, in the municipality of Siayan,
Zamboanga del Norte, within the jurisdiction of this Honorable Court, the above-named accused,
armed with a hunting knife, firearm, chako and bolo, conspiring, confederating together and
mutually helping one another, with intent to kill, by means of treachery and evident premeditation,
did then and there willfully, unlawfully and feloniously attack, assault, beat, stab and hack one
TITING ASENDA, thereby inflicting upon him multiple wounds on the vital parts of his body
which caused his death shortly thereafter; that as a result of the commission of the said crime the
heirs of the herein victim suffered the following damages, viz:
a) Indemnity for victims death . . . P50,000.00

b) Loss of earning capacity . . . . . . . P30,000.00
P80,000.00
CONTRARY TO LAW (Viol. of Art. 248, Revised Penal Code), with the aggravating
circumstances of nocturnity and abuse of superior strength.[5]
When arraigned on 22 November 1996, the four accused, assisted by counsel de oficio, pleaded
not guilty to the crime charged.[6]
By agreement of the parties, pre-trial conference was terminated on 6 December 1996.[7]

Thereafter, trial on the merits commenced.
The prosecution presented five witnesses, namely: Alberto Asonda, Danilo Asenda, Ernie Anggot,
Blessie Antiquina and PO1 Pablo Yosores.
Before the prosecution could rest its case, accused Charlito Rodas[8] and Jose Rodas, Jr. [9]
withdrew their previous pleas of NOT GUILTY and entered their respective pleas of GUILTY for
the lesser crime of Homicide. Both were sentenced to suffer the indeterminate penalty of 17 years,
4 months and 1 day to 20 years and were each ordered to indemnify the heirs of the victim in the
amount of P12,500.00 as damages.[10]
The prosecution formally offered Exhibits A to H, inclusive, with sub-markings.[11]
From the evidence adduced, the prosecutions version of the killing is as follows:
On 9 August 1996, Titing Asenda, a resident of Boyos, Sindangan, Zamboanga del Norte, was at
Milaub, Denoyan, Zamboanga del Norte, to help his brother, Danilo Asenda, in the harvesting of
the latters corn.
On the same day, at around 8:00 in the evening, a benefit dance at Milaub, which was sponsored
by Boboy Raquilme,[12] was being held. Among those roaming in the vicinity of the dance hall
were Alberto Asonda and Ernie Anggot. They stopped and hung out near the fence to watch the
affair. Titing Asenda was standing near them. They saw Charlito Rodas, Armando Rodas, Jose
Rodas, Jr., and Jose Rodas, Sr. surround Titing Asenda. Suddenly, without a word, Charlito Rodas,
armed with a hunting knife, stabbed Titing at the back. Armando Rodas then clubbed Titing with a
chako hitting him at the left side of the nape causing him to fall. Thereafter, Jose Rodas, Sr.
handed to Jose Rodas, Jr. a bolo which the latter used in hacking Titing, hitting him on the left
elbow. Alberto Asonda and Ernie Anggot tried to help Titing but Armando Rodas prevented them
by pointing a gun at them and firing it towards the sky.
After the assailants left, Alberto Asonda and Ernie Anggot approached Titing Asenda who was
already dead. They informed Danilo Asenda that his brother was killed. The police arrived the
following day after being informed of the incident.
On the part of the defense, accused-appellants Armando Rodas and Jose Rodas, Sr., and Vilma
Rodas, the formers wife, took the witness stand. The defense rested its case without marking and
offering any documentary evidence.
Defense evidence showed that only Charlito Rodas and Jose Rodas, Jr. killed Titing Asenda.
Appellant Jose Rodas, Sr. denied any participation in the killing of Titing Asenda claiming he was
not present in the benefit dance and that he was in his home with his wife and infant
granddaughter when the killing happened. He revealed that on the night of the killing, his son,
Charlito Rodas, who was carrying a hunting knife, arrived and told him he killed somebody. He
then brought his son to the municipal building of Siayan to surrender him to the police authorities.
Appellant Armando Rodas likewise denied he was one of those who killed Titing Asenda. He
claimed that at the time of the killing, he was in his house sleeping with his children. He denied
using a chako and firing a gun. He insisted it was his brothers, Charlito and Jose Jr., who killed
Titing Asenda because they pleaded guilty.
To bolster the testimony of the appellants, Vilma Rodas testified that she was at the benefit dance
when the killing happened. Armando and Jose Sr., she claimed, did not participate in the killing.
She said Charlito stabbed Titing while Jose Jr. merely punched the victim.
On 9 July 1998, the trial court promulgated its decision finding accused-appellants Armando
Rodas and Jose Rodas, Sr. guilty of the crime of Murder. The decretal portion of the decision
reads:
WHEREFORE, the Court finds the accused Jose Rodas, Sr. and Armando Rodas guilty beyond
reasonable doubt of MURDER as defined and penalized under the Revised Penal Code, as
amended under Section 6 of Republic Act No. 7659 and hereby sentenced them to RECLUSION
PERPETUA each and to indemnify the heirs of the deceased, Titing Asenda, P12,500.00 each or a
total of P25,000.00.
COST de oficio.[13]
In finding accused-appellants guilty, the trial court gave credence to the testimonies of
eyewitnesses Alberto Asonda and Ernie Anggot. It found accused-appellants and the other two
accused conspired in the killing of the victim and that treachery attended the same. It gave no
weight to accused-appellants defense of alibi and denial arguing that they were positively
identified as the perpetrators and that they failed to adduce evidence that it was physically
impossible for them to be present at the crime scene when the killing happened. It added that their
unsubstantiated denial will not be given greater evidentiary value over the testimonies of credible
witnesses who testified on affirmative matters.
With a Notice of Appeal[14] filed by accused-appellants, the trial court forwarded the entire
records of the case to this Court.[15] However, pursuant to our ruling in People v. Mateo,[16] the
case was remanded to the Court of Appeals for appropriate action and disposition.
In its decision dated 28 July 2006, the Court of Appeals affirmed in toto the RTCs decision.[17]
With the Court of Appeals affirmance of their convictions, accused-appellants are now before this
Court via a notice of appeal. With the appeal being timely filed, the records of the case were
elevated to this Court.
In our Resolution[18] dated 19 February 2007, the parties were required to file their respective
supplemental briefs, if they so desired, within 30 days from notice. Accused-appellants manifested
that since they had already filed the Appellants Brief, as well as Reply and Supplemental Reply
Brief, they are dispensing with the filing of the Supplemental Brief because the latter will merely
contain a reiteration of the arguments substantially discussed in the former.[19] On the part of the
Office of the Solicitor General, it manifested that considering that the guilt of the appellants had
already been discussed in the Appellees Brief, it was waiving its right to file a Supplemental Brief.
[20]
Accused-Appellants assign as errors the following:
I
THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANTS WERE ALSO
PRESENT AT THE DANCE AND PARTICIPATED IN ATTACKING THE VICTIM.
II
ASSUMING ARGUENDO THAT THE ACCUSED ARE GUILTY, THEY ARE ONLY LIABLE
FOR THE CRIME OF HOMICIDE.
On the first assigned error, appellants contend that the testimonies of prosecution witnesses
Alberto Asonda and Ernie Anggot should not be believed because they did not see the start of the
assault on Titing, and all they saw was him injured and lying down on the floor. They insist that
Asonda and Anggot could not have seen the killing because only a Petromax lighted the place.
After a careful and meticulous review of the records of the case, we find no reason to reverse the
findings of the trial court, as affirmed by the Court of Appeals. We affirm appellants conviction.
We find the evidence of the prosecution to be more credible than that adduced by appellants.
When it comes to credibility, the trial courts assessment deserves great weight, and is even
conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance
of weight and influence. The reason is obvious. Having the full opportunity to observe directly the
witnesses deportment and manner of testifying, the trial court is in a better position than the
appellate court to evaluate properly testimonial evidence.[21]
It is to be noted that the Court of Appeals affirmed the findings of the RTC. In this regard, it is
settled that when the trial courts findings have been affirmed by the appellate court, said findings
are generally conclusive and binding upon this Court.[22] We find no compelling reason to deviate
from their findings.
The Court finds that Alberto Asonda and Ernie Anggot witnessed the killing of Titing Asenda by
Charlito Rodas, Armando Rodas, Jose Rodas, Jr. and Jose Rodas, Sr. When Titing was killed,
Asonda and Anggot were near him. Contrary to the claim of the defense that the place where the
killing occurred was not lighted enough for the assailants to be identified, the place was
sufficiently lighted by a Petromax as testified to by Vilma Rodas.[23]
Appellants make a big issue about the absence of a medical examination. Should they be
exonerated because of this? The answer is no.
A medical examination or a medical certificate is not indispensable in the case at bar. Its absence
will not prove that appellants did not commit the cime charged. They can still be convicted by
mere testimonial evidence, if the same is convincing. In the case at bar, the testimonies of the two
eyewitnesses, which the Court found to be credible, are sufficient to prove the crime and its
perpetrators.
Appellants defense of denial and alibi must likewise fail. Mere denial, if unsubstantiated by clear
and convincing evidence, has no weight in law and cannot be given greater evidentiary value than
the positive testimony of a victim.[24] Denial is intrinsically weak, being a negative and self-
serving assertion.[25]
Denial cannot prevail over the positive testimonies of prosecution witnesses who were not shown
to have any ill motive to testify against appellants. Absence of improper motive makes the
testimony worthy of full faith and credence.[26] In this case, appellants, who were positively
identified, testified that Asonda and Anggot had no ill motive to testify against them.[27]
Moreover, ill motive has no bearing when accused were positively identified by credible
eyewitnesses. Motive gains importance only when the identity of the culprit is doubtful.[28]
Appellants also interposed the defense of alibi. No jurisprudence in criminal law is more settled
than that alibi is the weakest of all defenses for it is easy to contrive and difficult to disprove, and
for which reason it is generally rejected.[29] For the defense of alibi to prosper, it is imperative
that the accused establish two elements: (1) he was not at the locus criminis at the time the offense
was committed; and (2) it was physically impossible for him to be at the scene at the time of its
commission.[30] Appellants failed to do so.
In the case at bar, both appellants claimed that on the night Titing Asenda was killed, they were
one kilometer away. Thus, it was not possible for them to have been at the scene of the crime
when the crime was committed. The defense witnesses, however, gave conflicting testimonies.
Appellant Armando said his residence was more or less one kilometer away from the crime
scene[31] but Jose Sr. said it was only 50 meters away.[32] Jose Sr.[33] said the house of Charlito
was only 50 meters away from the crime scene but Armando said it was one kilometer away.[34]
Armando said his wife was in Dipolog City when the killing happened,[35] but his wife said she
witnessed the killing.[36] Armando said he and all the other accused lived in separate houses,[37]
but his wife revealed that Charlito lives with Jose Sr.[38] Vilma Rodas said after the killing, she
immediately went home and told Armando that his brothers killed somebody[39] but her husband
said he only learned of it the next morning.[40] What is more incredible is the fact that despite the
testimony of Vilma Rodas that she informed Armando of the killing, the latter never testified to
this effect. All these negate appellants claim that they were not at the crime scene when the killing
took place.
The information alleged that appellants, together with Charlito and Jose Jr., conspired in killing
Titing Asenda. Article 8 of the Revised Penal Code provides that there is conspiracy when two or
more persons agree to commit a crime and decide to commit it. It is hornbook doctrine that
conspiracy must be proved by positive and convincing evidence, the same quantum of evidence as
the crime itself.[41] Indeed, proof of previous agreement among the malefactors to commit the
crime is not essential to prove conspiracy. It is not necessary to show that all the conspirators
actually hit and killed the victim; what is primordial is that all the participants performed specific
acts with such closeness and coordination as to indicate a common purpose or design to bring
about the victims death.[42] Once conspiracy is established, all the conspirators are answerable as
co-principals regardless of their degree of participation. In the contemplation of the law, the act of
one becomes the act of all, and it matters not who among the accused inflicted the fatal blow on
the victim.[43]
In this case, conspiracy was convincingly proven beyond reasonable doubt. All the accused had
the same purpose and acted in unison when they assaulted the victim. Surrounding the victim,
Charlito stabbed Titing Asenda at the back with a hunting knife. Armando next clubbed the victim
with a chako, hitting him on the left side of the nape, causing him to fall to the ground. Jose Sr.
then handed a bolo to Jose Jr. who used it in hacking the victim.
On the second assigned error, appellants argue that assuming arguendo they are guilty, they are
liable only for the crime of homicide, not murder. They contend that treachery was absent since
they, together with Charlito and Jose Jr., met the victim casually in the dance hall.
The qualifying circumstance of treachery attended the killing. The essence of treachery is the
sudden and unexpected attack by the aggressor on an unsuspecting victim, depriving the latter of
any real chance to defend himself, thereby ensuring its commission without risk to the aggressor,
and without the slightest provocation on the part of the victim.[44] In People v. Villonez,[45] we
ruled that treachery may still be appreciated even when the victim was forewarned of danger to his
person. What is decisive is that the execution of the attack made it impossible for the victim to
defend himself or to retaliate.
In the case under review, the victim was completely unaware that he was going to be attacked.[46]
He was not forewarned of any danger to himself as there was no altercation or disagreement
between the accused and the victim. If treachery may be appreciated even when the victim was
forewarned, more so should it be appreciated when the victim was not, as in the case at bar. The
suddenness of the attack, the number of the accused and their use of weapons against the unarmed
victim prevent the possibility of any defense or retaliation by the victim. The fact that the victim
was already sprawled on the ground and still Jose Jr. hacked him with a bolo clearly constitutes
treachery.
The information also alleged that evident premeditation, nocturnity and abuse of superior strength
attended the killing.
For evident premeditation to be appreciated, the following elements must be established: (1) the
time when the accused decided to commit the crime; (2) an overt act manifestly indicating that he
has clung to his determination; and (3) sufficient lapse of time between decision and execution to
allow the accused to reflect upon the consequences of his act.[47] Like any other circumstance
that qualifies a killing as murder, evident premeditation must be established by clear and positive
proof; that is, by proof beyond reasonable doubt.[48] The essence of premeditation is that the
execution of the criminal act was preceded by cool thought and reflection upon the resolution to
carry out the criminal intent during a space of time sufficient to arrive at a calm judgment.[49] In
the case at bar, the prosecution failed to show the presence of any of these elements.
The aggravating circumstance of nocturnity cannot be considered against appellants. This

circumstance is considered aggravating only when it facilitated the commission of the crime, or
was especially sought or taken advantage of by the accused for the purpose of impunity. The
essence of this aggravating circumstance is the obscuridad afforded by, and not merely the
chronological onset of, nighttime. Although the offense was committed at night, nocturnity does
not become a modifying factor when the place is adequately lighted and, thus, could no longer
insure the offenders immunity from identification or capture.[50] In the instant case, the
prosecution failed to show that nighttime facilitated the commission of the crime, or was
especially sought or taken advantage of by the accused for the purpose of impunity. The crime
scene was sufficiently lighted by a Petromax which led to the identification of all the accused.
The aggravating circumstance of abuse of superior strength attended the killing. There was glaring
disparity of strength between the victim and the four accused. The victim was unarmed while the
accused were armed with a hunting knife, chako and bolo. It is evident that the accused took
advantage of their combined strength to consummate the offense. This aggravating circumstance,
though, cannot be separately appreciated because it is absorbed in treachery. In People v. Parreno,
[51] we decreed:
As regards the aggravating circumstance of abuse of superior strength, what should be considered
is not that there were three, four, or more assailants as against one victim, but whether the
aggressors took advantage of their combined strength in order to consummate the offense. While it
is true that superiority in number does not per se mean superiority in strength, the appellants in
this case did not only enjoy superiority in number, but were armed with a weapon, while the
victim had no means with which to defend himself. Thus, there was obvious physical disparity
between the protagonists and abuse of superior strength on the part of the appellants. Abuse of
superior strength attended the killing when the offenders took advantage of their combined
strength in order to consummate the offense. However, the circumstance of abuse of superior
strength cannot be appreciated separately, it being necessarily absorbed in treachery.
As a final attempt to lower their conviction to Homicide, appellants, citing People v. Alba,[52]
argue that although treachery was alleged in the Information and proven according to the trial
court, the same was not specified as a qualifying circumstance. Such argument fails.
In People v. Aquino,[53] we have held that even after the recent amendments to the Rules of
Criminal Procedure, qualifying circumstances need not be preceded by descriptive words such as
qualifying or qualified by to properly qualify an offense. We explained:
Section 8 of Rule 110 requires that the Information shall state the designation of the offense given
by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and
aggravating circumstances. Section 8 merely requires the Information to specify the
circumstances. Section 8 does not require the use of the words qualifying or qualified by to refer
to the circumstances which raise the category of an offense. It is not the use of the words
qualifying or qualified by that raises a crime to a higher category, but the specific allegation of an
attendant circumstance which adds the essential element raising the crime to a higher category.
In the instant case, the attendant circumstances of minority and relationship were specifically
alleged in the Information precisely to qualify the offense of simple rape to qualified rape. The
absence of the words qualifying or qualified by cannot prevent the rape from qualifying as a
heinous crime provided these two circumstances are specifically alleged in the Information and
proved beyond reasonable doubt.
We therefore reiterate that Sections 8 and 9 of Rule 110 merely require that the Information allege,
specify or enumerate the attendant circumstances mentioned in the law to qualify the offense.
These circumstances need not be preceded by the words aggravating/qualifying, qualifying, or
qualified by to be considered as qualifying circumstances. It is sufficient that these circumstances
be specified in the Information to apprise the accused of the charges against him to enable him to
prepare fully for his defense, thus precluding surprises during the trial. When the prosecution
specifically alleges in the Information the circumstances mentioned in the law as qualifying the
crime, and succeeds in proving them beyond reasonable doubt, the Court is constrained to impose
the higher penalty mandated by law. This includes the death penalty in proper cases.
xxxx
To guide the bench and the bar, this Resolution clarifies and resolves the issue of how to allege or
specify qualifying or aggravating circumstances in the Information. The words
aggravating/qualifying, qualifying, qualified by, aggravating, or aggravated by need not be
expressly stated as long as the particular attendant circumstances are specified in the Information.
[54]
Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659,[55] murder
is punishable by reclusion perpetua to death. There being neither mitigating nor aggravating
circumstance in the commission of the felony, appellants should be sentenced to reclusion
perpetua, conformably to Article 63(2) of the Revised Penal Code.
We now go to the award of damages. When death occurs due to a crime, the following damages
may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.
[56]
Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other
than the commission of the crime.[57] We affirm the award of civil indemnity given by the trial
court and the Court of Appeals. Under prevailing jurisprudence,[58] the award of P50,000.00 to
the heirs of the victim as civil indemnity is in order. Both the trial court and the Court of Appeals
awarded P25,000.00 as civil indemnity because the two accused who pleaded guilty to the lower
offense of homicide were ordered to pay P25,000.00 or half of the P50,000.00 civil indemnity.
Considering that half of the P50,000.00 was already paid, appellants should therefore pay only the
difference.
As to actual damages, the heirs of the victim are not entitled thereto because said damages were
not duly proved with reasonable degree of certainty.[59] However, the award of P25,000.00 in
temperate damages in homicide or murder cases is proper when no evidence of burial and funeral
expenses is presented in the trial court.[60] Under Article 2224 of the Civil Code, temperate
damages may be recovered as it cannot be denied that the heirs of the victim suffered pecuniary
loss although the exact amount was not proved.[61]
Anent moral damages, the same is mandatory in cases of murder and homicide, without need of
allegation and proof other than the death of the victim.[62] The award of P50,000.00 as moral
damages is in order.
The heirs of the victim are likewise entitled to exemplary damages in the amount of P25,000.00
since the qualifying circumstance of treachery was firmly established.[63]
WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in CA-G.R. CR-
HC No. 00289 is AFFIRMED WITH MODIFICATION. Appellants Armando Rodas and Jose
Rodas, Sr. are found GUILTY beyond reasonable doubt of murder as defined in Article 248 of the
Revised Penal Code, as amended by Republic Act No. 7659, qualified by treachery. There being
no aggravating or mitigating circumstance in the commission of the crime, they are hereby
sentenced to suffer the penalty of reclusion perpetua. The appellants are ORDERED to pay,
jointly and severally, the heirs of Titing Asenda the amount of P25,000.00 as civil indemnity,
P50,000.00 as moral damages, P25,000.00 as temperate damages and P25,000.00 as exemplary
damages. Costs against the appellants.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation,
it is hereby certified that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
[1] Middle name is Martinez.

[2] Middle name is Marinduque.
[3] Rollo, pp. 141-152; penned by Associate Justice Sixto Marella, Jr. with Associate Justices
Teresita Dy-Liacco Flores and Rodrigo F. Lim, Jr., concurring.
[4] Records, pp. 85-104.
[5] Records, p. 13.
[6] Id. at 20.
[7] Id. at 22.
[8] Entered plea of guilty to the lesser crime of Homicide on 17 October 1997.
[9] Entered plea of guilty to the lesser crime of Homicide on 29 May 1998.
[10] Records, pp. 39-40 and 55-56.
[11] Id. at 60-66.
[12] Sometimes spelled as Requilme.
[13] Records, pp. 103-104.
[14] Id. at 105.
[15] Id. at 106.
[16] G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
[17] Rollo, p. 151.
[18] Id. at 18.
[19] Id. at 19-20.
[20] Id. at 21-22.
[21] People v. Escultor, G.R. Nos. 149366-67, 27 May 2004, 429 SCRA 651, 661.
[22] People v. Aguila, G.R. No. 171017, 6 December 2006, 510 SCRA 642, 661; Rebucan v.
People, G.R. No. 164545, 20 November 2006, 507 SCRA 332, 347.
[23] TSN, 30 April 1999, p. 9.
[24] People v. Esperas, 461 Phil. 700, 713 (2003).
[25] People v. Agsaoay, Jr., G.R. Nos. 132125-26, 3 June 2004, 430 SCRA 450, 466.
[26] People v. Brecinio, G.R. No. 138534, 17 March 2004, 425 SCRA 616, 625.
[27] TSN, 7 August 1998, pp. 6-7, 11 December 1998, pp. 11-12.
[28] People v. Orpilla, 425 Phil. 419, 428 (2002); People v. Sicad, 439 Phil. 610, 626 (2002).
[29] People v. Sanchez, 426 Phil. 19, 31 (2002).
[30] People v. Flora, 389 Phil. 601, 611 (2000).
[31] TSN, 11 December 1998, p. 4.
[32] TSN, 7 August 1998, p. 9.
[33] Id.
[34] TSN, 11 December 1998, p. 8.
[35] Id. at 11.
[36] TSN, 30 April 1999, p. 3.
[37] TSN, 11 December 1998, p. 4.
[38] TSN, 30 April 1999, p. 6.
[39] Id. at 4.
[40] TSN, 11 December 1998, p. 8.
[41] People v. Montenegro, G.R. No. 157933, 10 August 2004, 436 SCRA 33, 41.
[42] People v. Amazan, G.R. Nos. 136251, 138606 & 138607, 16 January 2001, 349 SCRA 218,
234.
[43] People v. Tagana, G.R. No. 133027, 4 March 2004, 424 SCRA 620, 642.
[44] People v. Botona, G.R. No. 161291, 27 September 2004, 439 SCRA 294, 301.
[45] 359 Phil. 95, 112 (1998).
[46] TSN, 31 January 1997, p. 8.
[47] People v. Tan, 411 Phil. 813, 836-837 (2001).
[48] People v. Manes, 362 Phil. 569, 579 (1999).
[49] People v. Rivera, 458 Phil. 856, 879 (2003).
[50] People v. Cario, G.R. No. 131117, 15 June 2004, 432 SCRA 57, 84.
[51] G.R. No. 144343, 7 July 2004, 433 SCRA 591, 608.
[52] 425 Phil. 666, 677-678 (2002).
[53] 435 Phil. 417 (2002).
[54] Id. at 426-427.
[55] An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose
the Revised Penal Code, as amended, other Special Laws, and for other Purposes. Took effect on
31 December 1993.
[56] People v. Beltran, Jr., G.R. No. 168051, 27 September 2006, 503 SCRA 715, 740.
[57] People v. Tubongbanua, G.R. No. 171271, 31 August 2006, 500 SCRA 727, 742.
[58] People v. Pascual, G.R. No. 173309, 23 January 2007; People v. Cabinan, G.R. No. 176158,
27 March 2007; People v. De Guzman, G.R. No. 176158, 27 March 2007.
[59] People v. Tubongbanua, supra note 57.
[60] People v. Dacillo, G.R. No. 149368, 14 April 2004, 427 SCRA 528, 538.
[61] People v. Surongon, G.R. No. 173478, 12 July 2007.
[62] People v. Bajar, 460 Phil. 683, 700 (2003).
[63] People v. Beltran, Jr., supra note 56.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-30116 November 20, 1978
vs.
FAUSTO DAMASO, VICTORIANO EUGENIO, alias TURING, ESTANISLAO GREGORIO
alias ISLAO, LORENZO ALVIAR alias ORING AND BONIFACIO ESPEJO alias MARCIA,
defendants, FAUSTO DAMASO, LORENZO ALVIAR, BONIFACIO ESPEJO AND
VICTORIANO EUGENIO, defendants-appellants.
G.R. No. L-30117 November 20, 1978

vs.
LORENZO ALVIAR alias ORING, defendant-appellant.
Carlos, Valdez, Ibarra & Caunan Law Offices for appellants.
Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Dominador L. Quiroz and
Solicitor Concepcion T. Agapinan for appellees.
PER CURIAM:
The penalty of death imposed on Fausto Damaso, Victoriano Eugenio Lorenzo Alviar and
Bonifacio Espejo by the Court of First Instance of Tarlac in its Criminal Case No. 2253 for
"robbery with double homicide" is now before this Court on automatic review together with a
related case No. 2293 "for illegal possession of firearm and ammunition" involving only the
accused, Lorenzo Alviar.
The Information in Criminal Case No. 2253 charged the accused therein of "robbery with double
homicide" alleged to have been committed as follows:
That on or about the 21st day of November, 1959, at nighttime, in the Municipality of Victoria,
Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the above
named accused, four of whom are armed with a scythe and firearms, namely: Fausto Damaso with
a rifle, springfield Cal. 30, Victoriano Eugenio with a paltik Cal. 12 ga., Estanislao Gregorio with
a scythe, and Lorenzo Alviar with a paltik Cal. 22, confederating, conspiring, helping and aiding
one another, by means of force, violence, threats and intimidation upon the persons of Donata
Rebolledo, Victoriano de la Cruz and Susana Sabado, did then and there, willfully, unlawfully and
feloniously, with intent to gain, take, steal and carry away with them the following.
PROPERTY OF DONATA REBOLLEDO:
One jacket valued at
P25.00
One necklace valued at
50.00
One earring valued at
25.00
One ring valued at
15.00
One hat valued at.

5.00
Three scythes valued at
. 3.60
A document valued at
2.30
Total.
P125.90
PROPERTY OF VICTORIANO DE LA CRUZ

Cash money in the amount of
P15.00
PROPERTY OF SUSANA SABADO:

Cash money in the amount of
15.00
Ten bottles of liquor Bicolana;
Six bottles of Cana Rum;
One dozen Ligo Sardines;
One dozen Eatwell Sardines;
Six packages of Golden Star cigarettes;

three packages of cigarettes (Inyog);
and four packages of cigarettes
(La Ventaja) with a total value of.
P21.02
Total.
P36.02
Grand Total
P176.92
to the damage and prejudice of the said owners in the respective amounts of P125.90, P15.00 and
P36,02, Philippine currency; that the said accused, on the occasion of the commission of the crime
above-mentioned, held and brought Catalina Sabado and Susana Sabado, daughters of the said
Donata Rebolledo, to a sugarcane field which is a secluded and uninhabited place, at Barrio
Bangar, Victoria, Tarlac, and once there and after tying together the respective forearms of the said
Catatina Sabado and Susana Sabado, in pursuance of their concerted conspiracy, by means of
force and grave abuse of superior strength, the said accused did then and there, willfully,
unlawfully and feloniously, stab the said Catalina Sabado and Susana Sabado on different parts of
their body and cut their necks with a sharp pointed instrument (scythe), as a result of which the
latter died instantly.
That in the commission of the crime above mentioned, there concurred the aggravating
circumstances of (1) abuse of superior strength, (2) nighttime, (3) uninhabited place, (4) by a
band, (5) treachery, and (6) disregard of sex. (pp. 116-117, rollo)
In Criminal Case No. 2293 Lorenzo Alviar was also charged of illegal possession of firearm and
ammunition, viz.
That on or about November 24, 1959, in the Municipality of Victoria, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable Court, the above named accused, without
authority of law, did then and there, willfully, unlawfully and feloniously have in his posssession
and under his control a firearm, to wit; a paltik revolver caliber 22 with eight (8) rounds of
ammunition, without first obtaining the corresponding license or permit to keep and possess the
same. (pp. 117-118, Ibid.)
The two cases were jointly heard by the trial court. In a joint decision rendered on December 10,
1968, by then Presiding Judge, Hon. Arturo B. Santos, all the accused were found guilty as
charged. In Criminal Case No. 2253 (robbery with double homicide) the accused Fausto Damaso,
Lorenzo Alviar, Bonifacio Espejo and Victoriano Eugenio were each sentenced to suffer the
"penalty of death, to indemnify the legal heirs of the victims, Catalina Sabado and Susana Sabado,
jointly and severally in the amount of P12,000.00 for each of the victims, plus the sum of P15,00
which was the money taken by the accused, and to pay the costs, share and share alike." One of
the accused, Estanislao Gregorio, was no longer included in the sentence because he died on April
6, 1967 while the cases were still undergoing trial.
In Criminal Case No. 2293, accused Lorenzo Alviar was sentenced "to three years imprisonment
and to pay the costs," 1
The evidence of the prosecution as found by the trial court establish the following incidents: 2
Donata Rebolledo and her son-in-law, Victoriano de la Cruz were residents of Barrio Bangar,
municipality of Victoria, province of Tarlac. At about 9 o'clock in the evening of November 21,
1959, Donata and Victoriano heard the barkings of dogs outside their house. Shortly, two men
armed with guns, entered, pointed their weapons at them, tied up the hands of Victoriano, covered
him with a blanket and asked Donata for the wereabouts of her daughter Catalina Sabado. Stricken
by fear, Donata kept silent and blocked the door leading to her daughter's room but was promptly
pushed aside. Donata was then ordered to open an "aparador" from which the two men took
valuables like jewelry, clothing, documents, and cutting instruments. All the while, Donata and
Victoriano could hear the movements and voices of some three to four other persons beneath the
house. The two men brought Catalina Sabado down from the house and then asked where they
could find Susana Sabado, Donata's other daughter who was then in her store located about five
meters away in the same house. Thereafter, Donata heard the men opening the door to Susana's
store. After several minutes, feeling that the intruders had left, Donata untied the hands of
Victoriano and asked him to go to the store to see if her daughters were there. When the two
women could not be found, Donata sent Victoriano to the barrio lieutenant to report the incident.
Accordingly, Victoriano went to the barrio lieutenant and the two later went to town to inform the
police of the occurrence.
On the same night, Chief of Police Pedro Valdez with the aid of several policemen and a handful
of civilians went out in search for the Sabado sisters. It was only the following morning when the
two women were found already dead with wounds in several parts of their bodies. They were
found in a sugar plantation belonging to one Ignacio Fabros, located about one hundred meters
from Donata Rebolledo's house.
Dr. Carlos Briones, Municipal Health Officer of Victoria performed the autopsy on the two bodies
and reported that the deaths were caused by profuse hemorrhage due to a fatal, big, wide, gaping
and deep lacerated wound just above the Adam's apple. He also testified in court that the death
weapon must have been a sharp instrument with a pointed tip, like a scythe.
A few days after the incident, Donata Rebolledo singled out the accused Fausto Damaso from a
police line-up as one of the men who went up to her house on that evening. She and Victoriano
had recognized Damaso because of the light coming from a kerosene lamp placed on a small table
near the "aparador." Damaso, however, initially denied ever having been to Donata's house that
night. Later, the PC rounded up four other suspects in the persons of co-accused Gregorio,
Eugenio Alviar and Espejo.
As further evidence, the prosecution presented separate extrajudicial statements, sworn to before
Municipal Judge Conrado de Gracia of Paniqui, Tarlac, wherein au the five accused admitted
having participated in the crime.
In his sworm statement marked as Exhibit "J", Fausto Damaso stated that he was with his co-
accused Gregorio, Eugenio, Alviar and Espejo on the night the Sabado sisters were killed; that he
never went into the house of Donata Rebolledo as Eugenio and Gregorio were the ones who did;
that it was Gregorio and Eugenio who actually did the killing while he, Alviar and Espejo merely
stood by; that the victims were stabbed and their throats cut with a reaping knife (pangapas or
lait); that the killing was motivated by the failure of the older woman (Catalina) to pay for a
carabao bought from Gregorio; and that on that evening, Gregorio, Eugenio, Alviar and Espejo
were carrying caliber .45 pistols while he was unarmed.
In a subsequent statement marked as Exhibit "P", Damaso reiterated his claim that it was Gregorio
who actually stabbed and cut the throats of the victims in the presence of all the accused; that
Catalina was killed ahead of Susana; that Gregorio killed Susana as she was being held by
Eugenio; and that while still in the house, they were able to get P15 from Susana's store. Contrary
to what he confessed in his previous sworn statements, he admitted that it was he and Eugenio
who went up to Donata Rebolledo's house and not Eugenio and Gregorio. He also changed his
theory as to the motive for the killings, declaring this time that the two women were killed because
the latter had already recognized them. He further stated that on that night, he was armed with a
caliber .22 (paltik) revolver, Eugenio with a 12-gauge paltik, Gregorio with two reaping knives
(lait), Lorenzo with a long firearm and Espejo with two stones.
In this sworn statement, Exhibit "O", Victoriano Eugenio likewise admitted that he was a party to
the commission of the offense: that it was Gregorio who conceived of the plot to commit the
crime; that it was also Gregorio who killed the two women with a reaping knife; that after Catalina
was killed he held Susana by the arms as Gregorio stabbed her and cut her throat; that Alviar,
Damaso and Lorenzo were also with them that night; that he did not know what motivated
Gregorio to kill the victims; that he had no previous agreement with his co-accused to kill the two
women; that he and Damaso were the ones who entered Donata's house, took P15 from the
"aparador," brought down Catalina and also got Susana from another portion of the house; that he
was then armed with a 12- gauge paltik, Damaso with a caliber.22 paltik revolver, Alviar with a
Springfield caliber .30 rifle, Gregorio with a reaping knife and Espejo with two stones; and that he
was with the group that night because at about 7 o'clock in the evening, Gregorio dropped by his
house and invited him to Barrio Bangar where the crime was committed.
In his separate statement (Exhibit "Q"), Estanislao Gregorio narrated that in the afternoon of
November 21, 1959, his four co-accused came and informed him of a plan to rob the Sabado
sisters, to which plan he agreed; that Damaso and Eugenio went up Donata Rebolledo's house, got
P15 in cash and brought out Catalina and Susana by force; that he stabbed and cut the throats of
the victims with all his co-accused present; that Eugenio held Catalina while Damaso held Susana
as he killed them both with a reaping knife; that the two women were killed because they had
recognized Eugenio and Damaso and might testify against them in court; that during the
commission of the crime, his only weapon was a reaping knife while Alviar was carrying a
caliber .22 paltik revolver, Damaso, a Springfield caliber .30 rifle, Eugenio a 12-gauge single shot
paltik and Espejo was unarmed.
Exhibit "N" is Bonifacio Espejo's sworn statement. Here he declared that he happened to be with
the group because Damaso and Eugenio invited him to Barrio Bangar and they dropped by the
houses of Alviar and Gregorio before actually proceeding to the barrio; that they had a previous
agreement to commit the crime; that they planned the same in a lot owned by a certain Don Juan
Garcia in Barrio Bangar; that it was Damaso and Eugenio who entered Donata Rebolledo's house
while he, Alviar and Gregorio were left downstairs to keep watch; that they were able to get P15
from the house; that it was Gregorio who actually killed the two women; and that Damaso and
Eugenio were armed with a 12-gauge paltik and another long arm the caliber of which he did not
know; that Alviar had a caliber .22 paltik revolver, Gregorio a knife and he had two big stones.
Substantially similar were the admissions of Lorenzo Alviar in his sworn statement (Exhibit "R").
He likewise declared that he and his co-accused took P15 from the house of the victims; that it
was Gregorio who stabbed and cut the throats of the victims with a reaping knife; that the killing
was done in a sugarcane plantation between 10:00 and 11:00 o'clock in the evening of November
21, 1959; that Catalina was killed before Susana; that he was armed with a caliber .22 paltik
revolver, Eugenio with a single shot, 12-gauge paltik, Damaso with a Springfield caliber .30 rifle
and Espejo with two stones. He claimed, however, that he was only forced and intimidated by his
co-accused to join the group.
At the trial, the five accused set up the defense of alibi and repudiated their respective sworn
statements alleging that these were obtained from them through duress, force and intimidation.
Instances of the use of third degree methods like boxing, pouring of "7-up" into the nostrils,
stripping of clothes, pricking of the penis, kicking and slapping of the ears were narrated by the
accused on the witness stand, all of which were not believed by the trial court.
The accused-appellants are here represented by a counsel de oficio, Atty. Clemente A. Madarang,
Jr., who filed an exhaustive brief for the accused.
Taken as a whole, the assigned errors boil down to the question of credibility and sufficiency of
the evidence to sustain the conviction of appellants for the special complex crime of robbery with
double homicide. It is argued that (a) there is no evidence of the alleged robbery; (b) that the
homicide was not committed by reason or on occasion of the robbery; and (c) that the crime was
not attended by the aggravating circumstances of armed band, treachery and uninhabited place.
There is no merit to appellants' submittal.
1. That robbery was committed is evident from the declaration of prosecution witness Donata
Rebolledo who testified that the two men who barged into her house, one of whom she recognized
as Fausto Damaso, ordered her to open her "aparador" and then they took therefrom the following
items with their respective values a jacket-P25; a necklace P50; earrings P25; a ring-P15; a hat-
P5; scythes-P3.60; and documents worth P2.30. 3 Moreover the appellants admitted in their
separate statements that they were able to get P15 from Donata's house. On this point, We agree
with the Solicitor General that it matters not from what part of the house the accused got the P15.
What is important is that the culprits carried away personal property belonging to another by the
use of force, intimidation or violence. 4
2. Counsel points out that because there was a motive, at least on the part of Gregorio, for the
killing of the Sabado sisters, the double homicide could not have been "committed by reason or on
occasion of the robbery" as the law contemplates. He calls Our attention to the sworn statement
wherein Fausto Damaso declared that Gregorio killed Catalina and Susana because Catalina
bought a carabao from him and did not pay for it. Harping further on this motive theory, counsel
mentions such circumstances as why the accused specifically asked for Catalina and Susana upon
entering Donata Rebolledo's house and why Donata and Victoriano were not killed together with
the sisters if the purpose was to remove all opposition to the robbery or to eliminate witnesses
thereto.
As to Damaso's declaration, it should be noted that Damaso himself, in his subsequent sworn
statement, changed his motive theory and stated that the victims were killed in order to eliminate
witnesses to the crime. This was corroborated by Gregorio in the latter's own written confession.
Even assuming, however, that such a motive for vengeance existed on the part of Gregorio, it does
not necessarily exclude the fact that he and co-accused also intended, when they went to Donata's
house that night, to rob the family. In a complex crime of robbery with homicide, while an intent
to commit robbery must precede the taking of human life, the fact that the intent of the culprit was
tempered with a desire also to avenge grievances against the person killed does not prevent the
punishment of the accused for the complex crime. 5
3. Counsel for appellants also argues that the trial court erred in its appreciation of the
aggravating circumstances of armed band, treachery and uninhabited place.
The aggravating circumstance of band exists whenever more than three armed malefactors act
together in the commission of an offense. 6 Counsel concedes that at least three of the accused-
appellants, namely Eugenio, Alviar, and Gregorio, ,were armed during the commission of the
crime. He doubts, however, whether accused Damaso carried any weapon and whether the "two
stones" carried by accused Espejo fall under the category of "arms." But even granting that
Espejo's stones do not constitute arms, the prosecution presented the following evidence to show
that Damaso was also armed and, as such, there were more than three of the accused who were
armed: (1) that extrajudicial confession of Damaso himself (Exhibit "P") that he was carrying a
caliber .22 paltik revolver; (2) the sworn statement of accused Eugenio (Exhibit "O") that Damaso
had a caliber .22 paltik revolver; (3) the separate written confessions of Alviar, Gregorio and
Espejo (Exhibits R, Q, and "N") that Damaso had a caliber .30 Springfield rifle; and (4) the
testimonies of Donata Rebolledo and Victoriano de la Cruz that both men who entered their house
(one of whom they later Identified as Damaso) were carrying firearms. It is clear from the above,
that Damaso was armed during the night of the commission of the crime, and it is immaterial what
kind of firearm he carried, the only important thing being that he was armed. In this case, the
presence of an armed band is to be considered as a generic aggravating circumstance under Article
14(6) of the Revised Penal Code inasmuch as the crime committed was that provided for and
penalized in Article 294, paragraph 1 and not under Article 295, Revised Penal Code (see People
v. Apduhan, Jr., per Justice, now Chief Justice Fred Ruiz Castro, 24 SCRA 798)
Treachery is present if the victim is killed while bound in such a manner as to be deprived of the
opportunity to repel the attack or escape with any possibility of success. 7 The fact that the bodies
of Catalina and Susana were found dead with their arms tied behind their backs as well as the
admission of Gregorio in his confession (Exhibit "Q") that he killed the sisters while their arms
were held by Eugenio and Damaso lead Us to conclude that the killing of the two women was
done under treacherous circumstances.
Anent the circumstances of uninhabited place, counsel disclaims its existence by pointing to the
proximity of the sugarcane field where the victims were killed to the national highway as well as
to certain houses in the barrio. The uninhabitedness of a place is determined not by the distance of
the nearest house to the scene of the crime, but whether or not in the place of commission, there
was reasonable possibility of the victim receiving some help. 8 Considering that the killing was
done during nighttime and the sugarcane in the field was tall enough to obstruct the view of
neighbors and passersby, there was no reasonable possibility for the victims to receive any
assistance. That the accused deliberately sought the solitude of the place is clearly shown by the
fact that they brought the victims to the sugarcane field although they could have disposed of them
right in the house of Donata Rebolledo where they were found. Thus, in People v. Saguing, the
Court considered the crime as having been committed in an uninhabited place because the killing
was done in a secluded place at the foot of a hill, forested, and uninhabited. 9
The trial court considered separately the three circumstances of armed band, treachery and
uninhabited place where under other situations one may be considered absorbed or inherent in the
other. There is ample justification for this. The elements of each circumstance subsist
independently and can be distinctly perceived thereby revealing a greater degree of perversity on
the part of the accused.
4. In the third assignment of error, defense counsel assails the sufficiency of the evidence for the
prosecution. He urges that the extrajudicial confessions, having been repudiated during the trial,
are insufficient to sustain the trial court's judgment of conviction, specially so since no direct
evidence was introduced of any conspiracy or of the involvement of appellants in the crime in
question.
Regarding this matter, the following are strongly persuasive. First, the appellants' separate
extrajudicial confessions were subscribed and sworn to before Municipal Judge Conrado de
Gracia of Paniqui, Tarlac. On the witness stand, Judge de Gracia testified as to the authenticity and
due execution of the statements. He declared that before the statements were sworn to before him,
he had the appellants' PC escorts excluded from the room. He then took pains in translating and
explaining to the appellants the contents of their written statements and got their assurance that
such statements were freely and voluntarily made. 10 If it were true that appellants were forced or
intimidated into making the confessions, they could have easily manifested before the judge that
they did not voluntarily give the same. Certainly, they could have then been afforded the necessary
protection from any untoward incident that could happen. Their failure there and then to air any
injustice or misdeed committed upon them belies their stories of maltreatment. Too, there is no
credible proof of the alleged maltreatment that they suffered in the hands of the police or other
authorities as a result of which they executed the confessions. Considering that repudiation of
confessions comes very easily, the same must be taken with a grain of salt. it occurs all too often
that guilty persons, after confession to crime, experience a change of heart and repudiate their
confessions in the hope of escaping liability.
Secondly, there was the reenactment of the robbery and the killings. The movements reconstructed
by the appellants conform substantially with the details set forth in their individual sworn
statements. The reenactment was done in the presence of people, including a photographer who
had no connection with the police or the prosecution.
Fiscal Magin Taedo who was present during the reenactment testified that the entire proceeding
was spontaneous and free from coercion. On several occasions, appellants, even corrected
themselves in certain details. Nobody directed the whole show except the appellants themselves.
11
Fiscal Taedo's testimony was corroborated by photographer Manuel Gamalinda who also
declared that there was no dictation, violence, force or intimidation employed upon the appellants
during the reenactment. 12 Gamalinda also testified as to the authenticity of the pictures he took
during the reenactment, which the prosecution also submitted as evidence. 13
Again, concerning the confessions, other circumstances are equally significant. Some of the
statements made, specifically the one of accused Alviar, were exculpatory in nature and would not
have been included had the confessant been coerced into making his confession. Others cite
plausible facts and details which only actual participants in the crime could have known.
Also, partial corroboration of appellants' statements are found in the testimonies of Donata
Rebolledo and Victoriano de la Cruz, more particularly, as to the robbery. As such, the
confessions, coupled by evidence of the corpus delicti the human remains of Catalina and Susana
Sabado, are sufficient bases for the trial court's declaration of guilt.
5. With regards to the defense of alibi, We find no justifiable reason for discarding the findings
of the trial court on this matter. In People v. Berdida, et al., this Court held that the defense of alibi
is an issue of fact that hinges on credibility, which depends much on the credibility of the
witnesses who seek to establish it. In this respect the relative weight which the trial judge assigns
to the testimony of the witnesses must, unless patently and clearly inconsistent with the evidence
on record, be accepted. The defense of alibi is worthless in the face of positive Identification by
prosecution witnesses, pointing to the accused as participants in the crime. (17 SCRA 520, citing
People v. Tansiangco,
L-19448, February 28,1964; People v. Rivera, L-14077, March 31, 1964)
6. As to conspiracy, the trial court's inference as to the existence of the same is well-founded
and is amply discussed in its decision. Said His Honor:
From the simultaneous and cooperative acts of the accused, the Court finds and so holds that there
was conspiracy among them. For conspiracy to exist, direct proof is not essential The same may
be inferred from the acts of the conspirators in the commission of the offense. It is not essential
that each conspirator takes part in every act or that he should know the exact part to be performed
by the others in the execution of the conspiracy. Conspiracy merely implies concert of design and
does not require participation in every detail of execution. Neither is it necessary to show any
previous plan or that the parties should actually come together and agree in express terms in
pursuing a common design. It is sufficient if it is proved that the acts of the conspirators were in
fact connected and cooperative in accomplishing the unlawful object, thereby indicating a
closeness of personal association and concurrence of sentiments.
In the case of the accused herein, they got together and planned the criminal act shortly before its
execution; they proceeded together to the house of the victims and, while Damaso and Eugenio
went upstairs, the other accused stayed under the house as lookout; once inside the house, the two
asked and demanded for the victims, forcibly dragged them downstairs, handed them to those
waiting under the house and, together as a group, they brought the victims to the sugarcane field
and mercilessly stabbed them to death. Clearly, there was a concert of acts among the accused
aimed at one common design, and each act was connected to and cooperative with the others.
The basic rule is that when conspiracy is established, like in the present case, the act of one
conspirator is imputable to the others and the criminal liability of each participant is the same as
those of the others.
7. On the matter of accused Lorenzo Alviar's conviction for illegal possession of firearms in
Criminal Case No. 2293, two errors are assigned. First, that the trial court had no jurisdiction over
the case because the same having been previously filed before the Justice of the Peace Court of
Victoria, Tarlac, which also acquired jurisdiction over the person of the accused, the latter court
acquired jurisdiction to the exclusion of all other courts.
This is untenable. That the Justice of the Peace Court has concurrent jurisdiction with the Court of
First Instance in this case is not questioned. It, however, appears from the order of the justice of
the Peace Court forwarding the records of the case to the Court of First Instance 14 that the case
was brought before the former court merely for purposes of a preliminary investigation. Where a
Justice of the Peace acquires jurisdiction for the purpose of preliminary investigation and not for
trial on the merits, such court does not necessarily acquire exclusive jurisdiction to try the case on
the merits. 15
In the second assigned error, counsel attacks the flimsiness of the evidence for the prosecution. He
questions the sufficiency of a document (Exhibit "B"), purportedly a receipt issued to Alviar upon
the confiscation from him of the alleged firearm. It is argued that from the manner the receipt is
worded as well as from the fact that it is thumb marked by Alviar and not signed by the person
confiscating, it appears to be a confession rather than a receipt.
The controversial receipt, however, is not the only evidence presented by the prosecution. Sgt.
Melencio Fiesta of the Philippine Constabulary also declared on the witness stand that Alviar
verbally confessed to him his (Alviar's) possession of a caliber .22 paltik revolver. 16 He further
stated that he properly translated from English to Ilocano the contents of the receipt before Alviar
affixed his thumbmark on the same. 17 Whether Exhibit " B " is taken as a receipt or as a
confession, it has its own weight as an evidence against appellant Alviar.
Still on the illegal possession of firearm, the prosecution also presented as evidence Exhibit "C"
properly sworn to before Judge Conrado de Gracia, wherein Alviar confessed that he did own and
possess a caliber .22 paltik which he carried on the night the robbery and killings were committed.
The voluntariness of this confession has not been disproved.
8. In conclusion, the crime committed by appellants in Criminal Case No. 2253 is robbery with
homicide defined in Article 294, paragraph 1, Revised Penal Code, to wit:
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 suffer:
crime of homicide shall have been committed.
xxx xxx xxx
The penalty is to be imposed in its maximum period by reason of the presence of three
aggravating circumstances found by the trial court, to wit: that the robbery was committed by a
band, 18 with treachery, 19 and in an uninhabited place. 20 There is likewise the additional
aggravating circumstance that the robbery was committed in the dwelling of the victim. Donata
Rebolledo which although not alleged in the Information is however established by the evidence.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We hereby affirm in toto the decision of
the trial court in the two cases.
Without pronouncement as to costs at this instance.
SO ORDERED.
Castro, C.J., Teehankee, Barredo, Makasiar, Antonio, Muoz Palma, Concepcion, Jr., Santos,
Fernandez and Guerrero, JJ., concur.
Fernando, Aquino, JJ., took no part.

Footnotes
1 see pp. 130-131, rollo.

2 G.R. see pp. 11 8-121, Ibid.
3 tsn., October 11, 1962, p. 5.
4 Art. 293, Revised Penal Code.
5 US v. Vilorente and Bislig, 30 Phil. 59.
6 Art. 14, par. 6, Revised Penal Code.
7 People v. Madrid, 88 PhiL 1; People v. Bakang, et al., 26 SCRA 840; People v. Mongado, et
al., 28 SCRA 642; People v. Lunar, 45 SCRA 119.
8 People v. Bangug, et al., 52 PhiL 87.
9 30 SCRA 834.
10 tsn., July 29, 1963, pp. 69-83.
11 tsn., November 15, 1963, p. 72.
12 tsn., April 4, 1963.
13 tsn., April 4, 1963, pp. 245-246 and 262.
14 p. 20, rollo, Criminal Case No. 2293.
15 Nearia, et al., v. Veluz, 91 PhiL 473.
16 tsn., October 4, 1963, p. 33.
17 tsn., October 4, 1963, p. 21.
18 Article 14, par. 6, Revised Penal Code.
19 ibid., par. 16, Ibid.
20 ibid. par. 6, Ibid.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-2390 April 24, 1950
vs.
PEDRO BALDERA, MIGUEL BLAY, JOSE DE LA CRUZ, and FOUR OTHERS, defendants.
PEDRO BALDERA, appellant.
August Francisco for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Florencio Villamor for
appellee.
REYES, J.:
We are called upon to review the sentence of death passed upon the appellant Pedro Baldera, who
was found guilty of robbery in band with homicide and serious and less serious physical injuries
by the Court of First Instance of Batangas.
The evidence shows that at about 4 a.m. on December 23, 1947, a Casa Manila bus loaded with
passenger left Batangas, Batangas, bound for Manila. On the highway in barrio Calansayan,
municipality of San Jose, same province, it was held up by a group of five or six armed men. One
of these, later identified as herein appellant Pedro Baldera, who was then armed with a .45 caliber
pistol, fired a shot, and this was followed by a hail of bullets coming from different directions. As
a result, several passengers, among them Jose Cabrera, Jose Pastor and Francisco Mendoza, were
wounded. After the firing had ceased, appellant got on the bus and, threatening the passengers
with his gun, took P90 from Jose Pastor and P34 from Ponciana Villena. Another passenger named
Francisco Mendoza was also relieved of his P3. Appellant then alighted and ordered the bus to
proceed, whereupon the driver headed for the municipal building of San Jose and there reported
the incident to the authorities. The wounded were taken to the hospital, where Jose Cabrera died
from his wounds on the following day. Jose Pastor, who was wounded in the left leg, was cured in
two months, while Francisco Mendoza's gunshot wound in the right shoulder healed in 15 days.
For the above crime four persons were prosecuted and tried under an information charging "robo
en cuadrilla con homicidio y lesiones graves y lesiones menos graves." The case was dismissed as
to two of the accused due to insufficiency of evidence. But the other two, Pedro Baldera and
Miguel Blay, were, after trial, found guilty as charged and sentenced, the first to capital
punishment, and the second to life imprisonment, both to pay the corresponding indemnity and
proportionate costs.
Only the case against Pedro Baldera is now before us.
There is no dispute as to the perpetration of the crime. The only question is as to the identification
of this appellant as one of the authors thereof. On this point the evidence for the prosecution
shows that shortly after the commission of this crime, appellant was arrested in the municipality of
Batangas in connection with the theft of a radio, and as his features tallied with the personal
description of one of the highway men given to the chief of police by some of the passengers of
the held-up bus, he was also investigated in connection with the hold-up, and he then made a
confession, which was reduced to writing and later subscribed by him before the justice of the
peace, admitting his participation in the crime as the one who, armed with a pistol, boarded the
bus and though intimidation relieved Ponciana Villena of her money.
At the trial, Ponciana also identified appellant as the one who relieved her of her money at
gunpoint, saying that she had a good look at his face for she was watching him closely for fear that
he might fire at her. She also declared that when she was sent for by the chief of police to identify
appellant, the latter approached her as she came into the office of said officer and asked her
forgiveness. Two other passengers of the bus declared at the trial that appellant resembles the one
who stopped the bus and robbed its passengers.
Testifying in his own defense, appellant denies participation in the crime charged, declaring that
he passed the night in question in a house of prostitution in Batangas, where he was employed by
the prostitutes for drawing water. But this alibi is without corroboration and can not stand up
against the clear and positive testimony of Ponciano Villena, who has not shown to have any
motive for falsely testifying against him.
Counsel de oficio impugns the admissibility of appellant's confession on the ground that the same
was made on a promise to render him protection from his co-accused and also to utilize him as a
government witness. But appellant himself denied that such a promise was ever made and the
record shows that, when the confession was offered in evidence, it was objected to the sole ground
that "it was taken through force and intimidation," which, however, was not proved. Moreover,
this court has already held that "where one of several codefendants turns state's evidence on a
promise of immunity ... but later retracts and fails to keep his part of the agreement, his confession
made under such promise may then be used against him." (People vs. Panaligan and Andulan, 43
Phil., 131.) In any event, even without the said confession, we find that appellant's participation in
the crime herein charged has been clearly and satisfactorily proved.
Counsel also contends that the lower court erred in holding that the crime committed is robbery in
band, alleging that there was no sufficient proof that the perpetrators thereof numbered more than
three armed men. The fact, however, that there were more than three armed men in the group that
held up the bus appears in appellant's own confession and is also established by the uncontradicted
testimony of one of the government witnesses. And the point is really not material because in the
crime of robbery with homicide it is not essential that the robbery be in band, although that
circumstance may be taken into account as an aggravation in the imposition of the penalty. And
even if it be not be taken into account as such in this case, there would still remain the other
aggravating circumstance that the robbery was perpetrated by attacking a vehicle (art. 295, R. P.
C.), which is not offset by any mitigating circumstance.
The lower court did, however, err in appreciating against the accused the circumstance of
recidivism by reason of his previous conviction for theft, it appearing that crime was committed
on or about December 30, 1947 (Exhibit E) while the offense now charged took place seven days
before that date.
In conclusion, we find appellant guilty of the crime of robbery with homicide and serious and less
serious physical injuries with two aggravating circumstances. But there being no sufficient vote to
impose the extreme penalty, appellant can be sentenced to life imprisonment only.
Wherefore, reducing appellant's sentence to life imprisonment but increasing the indemnity to be
paid by him to the heirs of the deceased Jose Cabrera to P6,000, the judgement below as so
modified is affirmed, with costs against the appellant.
Moran, C.J., Ozaeta, Pablo, Bengzon, Tuazon, and Montemayor, JJ., concur.

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SUPREME COURT
Manila
EN BANC
G.R. No. L-39913 December 19, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
RICARDO MELENDREZ Y NIETO, ET AL., defendants.
RICARDO MELENDREZ Y NIETO, appellant.
Consorio Gallego for appellant.
Office of the Solicitor-General Hilado for appellee.
AVANCEA, C.J.:
The text of the information filed against Ricardo Melendrez y Nieto and Elias Martinez in this
case, reads as follows:
That on or about the 15th day of June, 1933, in the municipality of Pasay, Province of Rizal,
Philippine Islands, within two and one-half (2 ) miles from the limits of the City of Manila and
within the jurisdiction of this court, the said accused conspiring together and helping each other
willfully, unlawfully and feloniously forcibly broke open the door of the store located at No. 85
Cementina, Pasay, an inhabited house belonging to and occupied by Tin Bun Boc, and once inside
the said store, with intent of gain and without the consent of the owner thereof, took, stole and
carried away therefrom the following personal properties of the said Tin Buc Boc:
Money amounting to P30.26
One(1) Elgin watch, gold plated and a gold filled chain, valued at 25.00
One(1) Chinese ring, signet solid gold, valued at 13.50
One(1) buntal hat, valued at 4.50
Nine (9) small packages of "Camel" cigarettes 1.35
Nine (9) small packages of "Chesterfield" cigarettes 1.26
Three (3) cans of Milkmaid, valued at .81
Total
76.68
to the damage and prejudice of the said Tin Buc Boc in the total sum of seventy-six pesos and
sixty-eight centavos (P76.68), Philippine currency.
That the accused Ricardo Melendrez y Nieto is a habitual delinquent, he having been previously
convicted by final judgment of competent courts twice of the crime of theft and once of the crime
of estafa and having been last convicted of the crime of estafa on September 3, 1932.
On the date of the trial of this case, Elias Martinez had not been yet apprehended, for which reason
only the other defendant Ricardo Melendrez y Nieto, who pleaded guilty to the charge, was
arraigned. Whereupon, the court found him guilty of the crime charged in the information and
sentenced him to eight years and one day of prision mayor, and to serve an additional penalty of
six years and one day of prision mayor for being a habitual delinquent. From this judgment
Ricardo Melendrez y Nieto appealed.
In this instance, counsel for the appellant contends that lack of instruction on the part of the
appellant should be considered as a mitigating circumstance in the commission of the crime.
However, aside from the fact that this court has repeatedly held in its various decisions that lack of
instruction cannot be considered as a mitigating circumstance in crimes of robbery, the records of
the case do not afford any basis on which to judge the degree of instruction of the appellant
inasmuch as no evidence was taken relative thereto, he having pleaded guilty.
However, the fact that the appellant pleaded guilty upon arraignment is a mitigating circumstance
which should be considered in his favor.
On the other hand, the fiscal contends that the aggravating circumstance of recidivism should be
taken into account against the appellant. This claim of the fiscal is in accordance with the
judgment rendered by this court in banc in the case of People vs. Aguinaldo (47 Phil., 728) while
the old Penal Code was in force. But the enforcement of the Revised Penal Code has resulted in a
difference of opinion regarding this point on the part of the members of this court. For this reason,
after reviewing all the decisions affecting the matter, rendered by this court both in banc and in
division, it is now held that the aggravating circumstance of recidivism should be taken into
account in imposing the principal penalty in its corresponding degree, notwithstanding the fact
that the defendant is also sentenced to suffer an additional penalty as a habitual delinquent.
The facts alleged in the information constitute the crime of robbery committed without the use of
arms in an inhabited house, the value of the articles taken being less than P250. In accordance
with article 299 of the Revised Penal Code, the penalty prescribed for said crime is prision
correccional in its medium degree. Inasmuch as there is a concurrence therein of one mitigating
and one aggravating circumstance, this penalty should be imposed in its medium degree.
Wherefore, it being understood that the principal penalty imposed upon the appellant is two years,
eleven months and eleven days, the judgment appealed from is hereby affirmed, in all other
respects with costs. So ordered.
Street, Malcolm, Villa-Real, Hull, Vickers, Imperial, Butte, and Diaz, JJ., concur.
Separate Opinions
ABAD SANTOS, J., concurring in part and dissenting in part:

I can not give my assent to the proposition that in the imposition of the penalty prescribed by law
for the crime committed by the appellant, the aggravating circumstance of recidivism should be
taken into consideration. The appellant is a habitual delinquent, and under our law and upon the
facts of this particular case, recidivism is an inherent element of habitual delinquency.
Article 14, paragraph 9, of the Revised Penal Code, defines a recidivist as follows:
A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted
by final judgment of another crime embraced in the same title of this Code.
And article 62, paragraph 5 (c), of the same Code, defines a habitual delinquent as follows:
For the purposes of this article, a person shall be deemed to be habitual delinquent, if within a
period of ten years from the date of his release or last conviction of the crimes of robo, hurto,
estafa, or falsification, he is found guilty of any said crimes a third time or oftener.
It seems clear from the provisions of law above quoted that if, within a period of ten years from
the date of his release or last conviction of the crime of robo, hurto, estafa, or falsification, a
person be found guilty of the same crime for the second time, he would be a recidivist; and if he
be found guilty for the third time or oftener, he would be deemed a habitual delinquent. The law
determines the effect to be given to a second conviction, and it also determines the effect to be
given to a second conviction, and it also determines the effect of a third, fourth, and fifth
conviction. In imposing the penalty prescribed for the third, fourth or fifth conviction of any of the
crimes mentioned, it seems to me beyond the purpose of the law to take again into consideration
the legal effect of the previous, second conviction.
Except as above stated, I agree with the decision of the court.

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SUPREME COURT
Manila
EN BANC
G.R. L-No. 5292 August 28, 1909
THE UNITED STATES, plaintiff,

vs.
THE MORO MANALINDE, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Ramon Diokno for defendant.
TORRES, J.:
Between 2 and 3 o'clock on the afternoon of the 19th of January, 1909, while Juan Igual, a
Spaniard, was seated on a chair in the doorway of Sousa's store in Cotabato, Moro Province, he
suddenly received a wound on the head delivered from behind and inflicted with a kris. Ricardo
Doroteo, a clerk in the said store, who was standing behind the counter, upon hearing the noise
and the cry of the wounded man, ran to his assistance and found him lying on the ground.
Meanwhile the aggressor, the Moro Manalinde, approached a Chinaman named Choa, who was
passing along the street, and just as the latter was putting down his load in front of the door of a
store and was about to enter, attacked him with the same weapon, inflicting a severe wound in the
left shoulder, on account of which he fell to the ground. The Moro, who came from the rancheria
of Dupit and had entered the town carrying his weapon wrapped up in banana leaves, in the
meantime escaped by running away from the town. Both wounded men, the Chinaman and the
Spaniard, were taken to the hospital, where the former died within an hour, the record not stating
the result of the wound inflicted on the Spaniard Juan Igual.
In view of the above a complaint was filed by the provincial fiscal with the district court charging
Manalinde with the crime of murder, and proceedings having been instituted, the trial judge, in
view of the evidence adduced, rendered judgment on the 5th of February of said year, sentencing
the accused to the penalty of death, to indemnify the heirs of the deceased in the sum of P1,000,
and to pay the costs. The case has been submitted to this court for review.
From the above facts fully substantiated in this case, it appears beyond doubt that the crime of
murder, defined and punished by article 403 of the Penal Code, was committed on the person of
the Chinaman Choa, in that the deceased was unexpectedly and suddenly attacked, receiving a
deep cut on the left shoulder at the moment when he had just put down the load that he was
carrying and was about to start for the door of the store in front of which he stopped for the
purpose of entering therein. As a result of the tremendous wound inflicted upon him by the heavy
and unexpected blow, he was unable, not only to defend himself, apart from the fact that he was
unarmed, but even to flee from the danger, and falling to the ground, died in an hour's time. It is
unquestionable that by the means and form employed in the attack the violent death of the said
Chinaman was consummated with deceit and treachery (alevosia), one of the five qualifying
circumstances enumerated in the aforesaid article as calling for the greatest punishment.
When Manalinde was arrested he pleaded guilty and confessed that he had perpetrated the crime
herein mentioned, stating that his wife had died about one hundred days before and that he had
come from his home in Catumaldu by order of the Datto Rajamudah Mupuck, who had directed
him to go juramentado in Cotabato in order to kill somebody, because the said Mupuck had certain
grievances to avenge against a lieutenant and a sergeant, the said datto further stating that if he,
Manalinde, was successful in the matter, he would give him a pretty woman on his return, but that
in case he was captured he was to say that he performed the killing by order of Maticayo, Datto
Piang, Tambal and Inug. In order to carry out his intention to kill two persons in the town of
Cotabato he provided himself with a kris, which he concealed in banana leaves, and, traveling for
a day and a night from his home, upon reaching the town, attacked from behind a Spaniard who
was seated in front of a store and, wounding him, immediately after attacked a Chinaman, who
was close by, just as the latter was placing a tin that he was carrying on the ground and he was
about to enter a store near by, cutting him on the left shoulder and fleeing at once; he further stated
that he had no quarrel with the assaulted persons.
From the statements made by the accused his culpability as the sole-confessed and self-convicted
author of the crime in question has been unquestionably established, nor can his allegation that he
acted by order of Datto Mupuck and that therefore he was not responsible exculpate him, because
it was not a matter of proper obedience. The excuse that he went juramentado by order of the said
datto and on that account killed only two persons, whereas if he had taken the oath of his own
volition he would have killed many more, because it is the barbarous and savage custom of a
juramentado to kill anyone without any motive or reason whatever, can not under any
consideration be accepted or considered under the laws of civilized nations; such exhibitions of
ferocity and savagery must be restrained, especially as the very people who up to the present time
have been practicing such acts are well aware that the established authorities in this country can
never allow them to go unpunished, and as has happened a number of times in towns where
juramentados are in the habit of appearing, the punishment of the author has followed every crime
so committed.
In the commission of the crime of murder the presence of aggravating circumstances 3 and 7 of
article 10 of the Penal Code should be taken into consideration in that promise of reward and
premeditation are present, which in the present case are held to be generic, since the crime has
already been qualified as committed with the treachery, because the accused confessed that he
voluntarily obeyed the order given him by Datto Mupuck to go juramentado and kill some one in
the town of Cotabato, with the promise that if he escaped punishment he would be rewarded with
a pretty woman. Upon complying with the order the accused undoubtedly acted of his own
volition and with the knowledge that he would inflict irreparable injury on some of his fellow-
beings, depriving them of life without any reason whatever, well knowing that he was about to
commit a most serious deed which the laws in force in this country and the constituted authorities
could by no means permit. Datto Mupuck, who ordered and induced him to commit the crimes, as
well as the accused knew perfectly well that he might be caught and punished in the act of
committing them.
As to the other circumstance it is also unquestionable that the accused, upon accepting the order
and undertaking the journey in order to comply therewith, deliberately considered and carefully
and thoughtfully meditated over the nature and the consequences of the acts which, under orders
received from the said datto, he was about to carry out, and to that end provided himself with a
weapon, concealing it by wrapping it up, and started on a journey of a day and a night for the sole
purpose of taking the life of two unfortunate persons whom he did not know, and with whom he
had never had any trouble; nor did there exist any reason which, to a certain extent, might warrant
his perverse deed. The fact that the arrangement between the instigator and the tool considered the
killing of unknown persons, the first encountered, does not bar the consideration of the
circumstance of premeditation. The nature and the circumstances which characterize the crime, the
perversity of the culprit, and the material and moral injury are the same, and the fact that the
victim was not predetermined does not affect nor alter the nature of the crime. The person having
been deprived of his life by deeds executed with deliberate intent, the crime is considered a
premeditated one as the firm and persistent intention of the accused from the moment, before said
death, when he received the order until the crime was committed in manifestly evident. Even
though in a crime committed upon offer of money, reward or promise, premeditation is sometimes
present, the latter not being inherent in the former, and there existing no incompatibility between
the two, premeditation can not necessarily be considered as included merely because an offer of
money, reward or promise was made, for the latter might have existed without the former, the one
being independent of the other. In the present case there can be no doubt that after the crime was
agreed upon by means of a promise of reward, the criminal by his subsequent conduct showed a
persistency and firm intent in his plan to carry out the crime which he intentionally agreed to
execute, it being immaterial whether Datto Mupuck did or did not conceive the crime, once
Manalinde obeyed the inducement and voluntarily executed it.
The facts in this case are quite different from those in the proceedings instituted by the United
States vs. Caranto et al., wherein the decision on page 256 of Volume IV of the Philippine Reports
was rendered, as may be seen from the mere perusal of the statement of facts. It is also different
from the case where a criminal who has made up his mind to kill a certain individual kills a person
other than the object of his criminal intent. On going to Cotabato the Moro Manalinde intended to
and did kill the first two persons he encountered, and the fact that the victim was not
predetermined does not alter the nature, conditions, or circumstances of the crime, for the reason
that to cause the violent death of a human being without any reasonable motive is always
punishable with a more or less grave penalty according to the nature of the concurrent
circumstances.
For the above reasons and in view of the fact that no mitigating circumstance is present to
neutralize the effects of the aggravating ones, it is our opinion that the judgment appealed from
should be affirmed with costs provided however, that the penalty imposed on the culprit shall be
executed in accordance with the provisions of Acts. Nos. 451 and 1577, and that in the event of a
pardon being granted he shall likewise be sentenced to suffer the accessory penalties imposed by
article 53 of the Penal Code. So ordered.
Arellano, C. J., Johnson, Carson, and Moreland, JJ., concur.

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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 94308 June 16, 1994

vs.
RUBEN E. ILAOA and ROGELIO E. ILAOA, accused-appellants.
The Solicitor General for plaintiff- appellee.
Buen Zamar for accused- appellants.
BELLOSILLO, J.:
Pfc. Reynaldo P. Angeles was dispatched in the early morning of 5 November 1987 to Tinio St.,
Sta. Maria Phase I, Balibago, Angeles City, where the decapitated body of a man, later identified
through his voters identification card as Nestor de Loyola, was found in a grassy portion thereof.
Apart from the decapitation, the deceased bore forty-three (43) stab wounds in the chest as well as
slight burns all over the body. The head was found some two (2) feet away from the corpse.
Five persons, Ruben E. Ilaoa, Rogelio E. Ilaoa, Rodel E. Ilaoa, Julius Eliginio and Edwin Tapang,
were charged for the gruesome murder of Nestor de Loyola. However, only the brothers Ruben
and Rogelio stood trial since the other accused escaped and were never apprehended.
On 15 June 1990, the Regional Trial Court of Angeles City found Ruben and Rogelio guilty of
murder with the attendant circumstances of evident premeditation, abuse of superior strength and
cruelty, and imposed upon them the penalty of "life imprisonment." 1 The conviction was based
on the following circumstantial evidence:
One.The deceased Nestor de Loyola was seen at about eleven oclock in the evening of 4
November 1987, in a drinking session with his compadre Ruben Ilaoa together with Julius
Eliginio, Edwin Tapang and a certain "Nang Kwang" outside Rubens apartment. 2
Two. The drunken voices of Ruben and Nestor engaged in an apparent argument were later on
heard. 3 Nestor was then seen being kicked and mauled by Ruben and his brother Rodel, Julius
Eliginio and Edwin Tapang. 4 Nestor was crying all the while, "Pare, aray, aray!" Afterwards,
Nestor, who appeared drunk, was seen being "dragged" 5 into Ruben Ilaoas apartment. Nestor
was heard saying, "Pare, bakit ninyo ako ginaganito, hirap na hirap na ako!" 6
Three. Ruben Ilaoa and Julius Eliginio borrowed Alex Villamils tricycle at about two oclock
the following morning allegedly for the purpose of bringing to the hospital a neighbor who was
about to give birth. Ruben was seen driving the tricycle alone, with a sack which looked as though
it contained a human body, placed in the sidecar. The tricycle was returned an hour later to Alex
who noticed bloodstains on the floor. The latter thought that they were those of the pregnant
woman.
Four. Blood was found on Rubens shirt when he was asked to lift it during the investigation
by the police. 7 Moreover, Rubens hair near his right forehead was found partly burned and his
shoes were splattered with blood. 8 Susan Ocampo, Rubens live-in partner, was likewise seen in
the early morning of 5 November 1987 sweeping what appeared to be blood at the entrance of
their apartment. 9
In this appeal, brothers Ruben and Rogelio Ilaoa argue for their acquittal. They contend that the
circumstantial evidence relied upon by the trial court for their conviction failed to establish their
guilt beyond reasonable doubt. Specifically, they assail the finding of evident premeditation, abuse
of superior strength and cruelty as totally unwarranted.
We affirm Ruben Ilaoas guilt having been satisfactorily established by the evidence on hand,
albeit circumstantial. However, we reverse the conviction of Rogelio as we find it patently
baseless.
In finding Rogelio guilty of murder, the court a quo relied solely on the testimony that he helped
his brother Ruben drag Nestor de Loyola inside Rubens apartment where the deceased was last
seen alive. Apart from such testimony, however, there is nothing else to link Rogelio to the killing.
To warrant a conviction on the basis of circumstantial evidence, three requisites must concur: (a)
there must be more than one circumstance; (b) the circumstances from which the inferences are
derived are proven; and, (c) the combination of all the circumstances is such as to prove the guilt
of the accused beyond reasonable doubt. 10 In the case at bench, it does not require much analysis
to conclude that the circumstance relied upon to establish Rogelio Ilaoas guilt, i.e., the alleged
dragging of the deceased to his brothers apartment, is totally inadequate for a conviction, having
miserably failed to meet the criteria. This is especially so where the veracity of such circumstance
is even open to question. While Antonio Ramos and Abdulia Logan testified that Rogelio Ilaoa
helped his brother drag the deceased to his apartment, Eustancia Bie who claimed to have
witnessed the same incident positively testified that it was Ruben Ilaoa and Julius Eliginio who
did so. 11 Rogelio Ilaoa was not mentioned. Not having been adequately established, in addition
to being uncorroborated, such circumstance alone cannot be the basis of Rogelios conviction.
Rubens case, however, is a totally different matter. Unlike that of his brother, Ruben Ilaoas fate
was most definitely assured by the unbroken chain of circumstances which culminated in the
discovery of Nestor de Loyolas decapitated body in the early morning of 5 November 1987.
As found by the trial court, in the late evening of 4 November 1987, appellant Ruben Ilaoa was
engaged in a drinking session with the deceased Nestor de Loyola together with several others.
Ruben was heard arguing with Nestor. A few moments later, Ruben mauled and kicked the
deceased with the help of their drinking companions just outside Rubens apartment. As the
deceased cried "Aray! Aray!" and "Pare, bakit nyo ako ginaganito? Hirap na hirap na ako!"
appellant dragged the deceased with the help of Julius Eliginio to the apartment from where a
mans cries were continued to be heard later. To further seal the case against him, Ruben borrowed
Alex Villamils tricycle at two oclock in the morning of 5 November 1987 on the pretext that a
neighbor was about to give birth and had to be rushed to the hospital. However, he was seen
driving the tricycle alone with a sack placed in the sidecar. The sack looked as if it contained a
human body. 12 Then, an hour later, or at three oclock in the morning, the tricycle was returned
with bloodstains on the floor.
For his defense, appellant Ruben Ilaoa does not dispute the testimony of an eyewitness that he was
driving the tricycle at past two oclock in the morning with the sack in the sidecar. However, he
claims that the sack contained buntot ng pusa, a local term for marijuana, not a human body,
which he delivered to a designated place in Fields Avenue as a favor to his compadre Nestor de
Loyola whom he could not refuse. Moreover, it was the vomit discharged by his drinking
companions that was being swept clean by his girlfriend at the entrance of their apartment in the
early morning of 5 November 1987, not blood as the witnesses asseverated.
We find the version of the prosecution more persuasive than the defense. The fact that appellant
quarreled with the deceased, then mauled and pulled him to the apartment where the latter was last
seen alive, in addition to borrowing a tricycle which was found with bloodstains when returned,
sufficiently point to Ruben as the culprit responsible for the crime. The fact that the deceased was
his compadre, hence, presumably would have no motive to kill the latter, is not enough to
exculpate appellant. It is a matter of judicial knowledge that persons have been killed or assaulted
for no apparent reason at all, 13 and that friendship or even relationship is no deterrent to the
commission of a crime. 14
If we are to believe appellant Ruben, we will not be able to account for the blood found on the
floor of the tricycle after it was brought back to the owner. Ruben himself could not explain away
such testimony for he belied the excuse that the tricycle was needed to rush a pregnant woman to
the hospital, which was the explanation he gave to Alex Villamil when he borrowed it. We cannot
even consider that the story about the blood on the tricycle was simply concocted by Alex Villamil
to incriminate Ruben because the latter was his friend, as Ruben himself has admitted. 15 In fact
he could think of no reason for Alex Villamil to testify falsely against him. 16
Despite the foregoing, however, we hold appellant liable only for homicide, not murder, on the
ground that the qualifying circumstances alleged in the information, namely, abuse of superior
strength, cruelty and evident premeditation, were not sufficiently proved to be appreciated against
appellant.
Abuse of superior strength cannot be considered because there was no evidence whatsoever that
appellant was physically superior to the deceased and that the former took advantage of such
superior physical strength to overcome the latters resistance to consummate the offense. 17 The
fact that Nestor de Loyolas decapitated body bearing forty-three (43) stab wounds, twenty-four
(24) of which were fatal, 18 was found dumped in the street is not sufficient for a finding of
cruelty where there is no showing that appellant Ruben Ilaoa, for his pleasure and satisfaction,
caused Nestor de Loyola to suffer slowly and painfully and inflicted on him unnecessary physical
and moral pain. 19 Number of wounds alone is not the criterion for the appreciation of cruelty as
an aggravating circumstance. 20 Neither can it be inferred from the mere fact that the victims
dead body was dismembered. 21 Evident premeditation cannot likewise be considered. There is
nothing in the records to show that appellant, prior to the night in question, resolved to kill Nestor
de Loyola, nor is there proof to show that such killing was the result of meditation, calculation or
resolution on his part. On the contrary, the evidence tends to show that the series of circumstances
which culminated in the killing constitutes an unbroken chain of events with no interval of time
separating them for calculation and meditation. Absent any qualifying circumstance, Ruben Ilaoa
should only be held liable for homicide.
The penalty prescribed for homicide in Art. 249 of the Revised Penal Code is reclusion temporal.
Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating
circumstances, the maximum shall be taken from the medium period of reclusion temporal, which
is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4)
months, while the minimum shall be taken from the penalty next lower in degree, which is prision
mayor, in any of its periods, the range of which is six (6) years and one (1) day to twelve (12)
years.
In line with present jurisprudence, the civil indemnity fixed by the court a quo for the death of
Nestor de Loyola is increased from P30,000.00 to P50,000.00.
WHEREFORE, the judgment finding accused RUBEN E. ILAOA guilty beyond reasonable doubt
is AFFIRMED but only for homicide, instead of murder. Consequently, he is sentenced to an
indeterminate prison term of eight (8) years, ten (10) months and twenty (20) days of prision
mayor medium, as minimum, to sixteen (16) years, four (4) months and ten (10) days of reclusion
temporal medium as maximum. In addition, accused-appellant RUBEN E. ILAOA is ordered to
pay the heirs of Nestor de Loyola P50,000.00 as civil indemnity and, as fixed by the court a quo,
P46,765.00 as actual damages, P10,000.00 as reasonable attorneys fees and expenses of litigation,
and P10,000.00 for moral damages.
Accused-appellant ROGELIO E. ILAOA, however, is ACQUITTED of the crime charged for
obvious insufficiency of evidence.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.
# Footnotes
1 Decision penned by Judge Reynaldo B. Daway, Regional Trial Court of Angeles City, Branch
58, Rollo, pp. 81-88.
2 TSN, 17 October 1989, pp. 16-17.
3 TSN, 4 May 1988, p. 31; 17 October 1989, p. 11.
4 TSN, 14 November 1989, pp. 22-23.
5 TSN, 4 May 1988, pp. 34-36; 7 November 1989, pp. 19-21.
6 TSN, 13 April 1988, p. 9; 7 November 1989, p. 22.
7 TSN, 24 October 1989, p. 20.
8 TSN, 13 April 1988, pp. 14-15.
9 TSN, 4 May 1988, p. 42.
10 Sec. 4, Rule 133, Rules of Court.
11 TSN, 7 November 1989, pp. 19-21.
12 TSN, 4 May 1988, p. 38; Original Records, p. 61.
13 People v. Basadre, No. L-36383, 17 April 1984, 128 SCRA 641, 648; People v. Reyno, No.
L-19071, 30 April 1965, 13 SCRA 647, 651-652.
14 People v. Bicog, G.R. No. 76529, 19 July 1990, 187 SCRA 556, 564.
15 TSN, 5 January 1990, p. 30.
16 Ibid.
17 People v. Montilla, G.R. No. 95048, 3 July 1992, 211 SCRA 119, 128; People v. Canciller,
G.R. No. 97296, 4 March 1992, 206 SCRA 827, 833; People v. Jimenez, Jr., G.R. No. 84276, 13
February 1992, 206 SCRA 214, 222.
18 TSN, 4 May 1988, pp. 12-13; Original Records, pp. 35-36.
19 People v. Luna, No. L-28812, 31 July 1974, 58 SCRA 198, 209; People v. Llamera, Nos. L-
21604-5-6, 25 May 1973, 51 SCRA 48, 60.
20 People v. Tonog, Jr., G.R. No. 94533, 4 February 1992, 205 SCRA 772, 782; People v.
Manzano, Nos. L-33643-4, 31 July 1974, 58 SCRA 250, 262.
21 People v. de Pascual, No. L-32512, 31 March 1980, 96 SCRA 722, 738.
THIRD DIVISION
[G.R. No. 124319. May 13, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GARI BIBAT Y DESCARGAR,

defendant-appellant.
DECISION
PURISIMA, J.:
Appeal interposed by accused Gari Bibat y Descargar from the judgment rendered by Branch IV
of the Regional Trial Court of Manila, finding him guilty of the crime of Murder in Criminal Case
No. 93-123648.
Filed on July 23, 1993 by Assistant Prosecutor Alfeo T. Siccuon, the Information indicting accused
for Murder, alleges:
That on or about October 14, 1992, in the City of Manila, Philippines, the said accused, conspiring
and confederating with others whose true names, identities and present whereabouts are still
unknown and helping one another did then and there willfully, unlawfully and feloniously, with
intent to kill and with treachery and evident premeditation, attack, assault and use personal
violence upon the person of one LLOYD DEL ROSARIO Y CABRERA, by then and there
stabbing him with bladed weapon hitting him on the chest and abdomen, thereby inflicting upon
the latter mortal stab wounds, which are necessarily fatal and which where the direct and
immediate cause of his death thereafter.
Contrary to law.
With the accused entering a negative plea upon arraignment thereunder, with assistance of the
counsel de oficio, Atty. Alejandro G. Yrreborre, Jr., trial ensued with the prosecution presenting
Nona Avila Cinco, P03 Julian Bustamante, Florencio Castro and Rogelio Robles, as its witnesses.
Aside from accused, Marte Soriano, Lino Asuncion III, and Rogelio Robles (who was recalled to
the stand by the defense), testified for the defense.
As synthesized by the trial court of origin :
From the record and evidence presented, it appears that the accused Gari Bibat stabbed to death
one Lloyd del Rosario on October 12, 1992 at around 1:30 p.m. along G. Tuazon cor. Ma. Cristina
Sts., Sampaloc, Manila. The victim was on his way to school waiting for a ride when he was
stabbed. Thereafter the suspect fled while the victim was brought to the United Doctors Medical
Center (UDMC) where he was pronounced dead on arrival.
The incident was witnessed by Nona Avila Cinco, a laundry woman, who testified that on October
14, 1992, while she was at Funeraria Gloria waiting for her bettor, she saw a person about one
meter away talking to the accused. Said person told the accused O pare, anduon na. Puntahan mo
na. Siguruhin mo lang na itumba mo na. to which the accused answered: Oo ba. Ganito ba, ganito
ba? (as the witness was speaking, she was demonstrating with her arms.)[1]
After hearing the accused, she (witness) left towards Honrades Street to see another bettor. She
first went inside a house and after a while, she went outside where she saw the accused along
Honrades Street, entering an alley. She walked along with the accused. She and the accused were
even able to look at each other.
While the victim was going out of a gate, the accused hurried towards the victim and took a
pointed object from a notebook, then stabbed the victim in the left chest twice.
She was only about 4 to 5 meters away from the scene of the crime.
Thereafter, the accused fled, the victim shouted for help. Upon hearing the shouts of the victim,
the accused returned and stabbed the victim again in the middle part of the chest. She (witness)
then left the scene of the crime after the accused ran away.
She reported the matter to the authorities only on July 20, 1993 because she was afraid.[2]
xxx
Florencio Castro testified among others that he saw the accused together with four others inside
the Gloria Memorial Homes along G. Tuason St. on October 14, 1992. One of them used the
phone inside said place to call somebody. The rest stayed beside the one calling. He saw one of
them open a notebook where a stainless knife was inserted. He heard the one using the phone,
asking kung nasaan. Thereafter, the group went out and left towards the direction of Balic-Balic.
Rogelio Robles, testified among others that the accused Gari Bibat had been going to his place at
424 Berdad St., Sampaloc, Manila, for a long time already because their Samahang Ilocano (SI)
president, Tonton Montero, is his (witness) neighbor. Before the incident occurred, Tonton
Montero told him (witness) about a rumble in school whereby somebody died. The group of the
accused was planning to take revenge against the victim, Lloyd del Rosario (see TSN, pp. 7-8,
6/30/94), thus:
PROS. EUGENIO:
Q - Now, do you know personally what this group of Gari Bibat and his companions plan to do
regarding that trouble related to you by your neighbor, Tonton Montero?
A -What I know, the person against whom they will take revenge is living from a far place. I did
not know that he is from our place.
Q -Did they ever mention, during that meeting the name of the person whom they will take
revenge?
A -In the beginning, no, sir, but later they told me.
Q -What was the name, if they did mention to you the name?
A -The one who was killed, Lloyd, sir.
Q -The same Lloyd del Rosario, the victim in this case?
A -Yes, sir, Lloyd del Rosario.
He further testified that he (witness) only knows Lloyd del Rosario by the face because the latter
is from his place. He only knew what had happened to Lloyd after that fateful incident because 6
or 7 of the members of the group arrived, all with a tusok and they even kept two (2) guns in his
(witness) house. Gari Bibat was one of the 6 or 7 people he saw on that day, with a tres-cantos or
veinte nueve tucked in his (Bibats) waistline. (see pp. 11-12, TSN, 6/30/94). He further narrated
that he actually saw the killing of the victim, (see pp. 22-24, Ibid). that even before the day Lloyd
died, they (accused and companions) already hid some guns and tusok in his house. (see pp. 20,
TSN, Ibid.)
xxx xxx xxx
Accused Gari Bibat testified among others that on October 14, 1992, he was staying in his house
at 629 Reten St., Sampaloc, Manila; at that time it was his mothers birthday; that he was reviewing
his lessons from 7:00 oclock to 10:00 oclock in the morning in preparation for his final oral exams
on October 14, 1992; that Marte Soriano, a friend of his and a neighbor were in his house; that
after lunch, they (he and Marte Soriano) left for school at 12:35 noon; that they did not pass by
Funeraria Gloria; that he and his friend were able to reach the school; that he had a review of with
his classmates up to 1:45 oclock in the afternoon, afterwhich they proceeded to their room for the
final exams; that their examination lasted from 7:30 to 4:30 oclock in the afternoon; that he passed
the subject with a grade of 2.25; that he does not know Nona Cinco but only later in the precinct;
that he saw Rogelio Robles who was also detained at the Manila City Jail; that when he asked why
Rogelio Robles testified against him, Robles told him that it was merely concocted because the
complainant is Robles neighbor whom he cannot refuse; that he does not know Tonton Montero;
that he did frequent Verdad St., near Rogelio Robles house, neither did he go there on October 14,
1992 between 1:00 and 2:00 oclock in the afternoon; that he is not a member of Samahang Ilocano
fraternity but the United Ilocandia fraternity, a school fraternity; that he could not remember of his
fraternity being involved in any school rumble as the same is a very peaceful group which
promotes brotherhood; that they did not have a quarrel with the victim who is already dead
because the latter is not studying at Arellano University; that with respect to the death of Lloyd del
Rosario, the same is an added charge (ipinatong) to him and that he was just implicated therein;
that he knows nothing about it.
On cross examination, he testified that he neither saw the two prosecution witnesses before nor did
he know of any grudge which said witnesses have against him; and that he does not know of any
reason why they would testify against him and identify him as one of the killers of Lloyd del
Rosario.
Marte Soriano, testified among others that he was at the house of Gari Bibat at Reten St.,
Sampaloc, Manila, attending the birthday (party) of Garis mother on October 14, 1992; that Gari
Bibat was reviewing his studies at that time in preparation for an oral examination. After taking
lunch, he, together with Gari, went to school (Arellano University) at around 12:00 noon. There,
he reviewed his lessons in preparation for his exams while Gari Bibat had a group study with his
classmates until 2:00 P.M. when Gari went inside the classroom. He knew that Gari Bibat had an
exam that day at 2:00 P.M. because he (witness) is also studying at Arellano University. The next
time he saw the accused was two (2) days after October 14, 1992.
Lino Asuncion III, testified among others: that he is a classmate of Gari Bibat at Arellano
University; that their common subject on MWF is Math 2, English 2, Computer 2; that they had a
last/final oral examination in Computer 2 on October 14, 1992; that he saw Gari Bibat in school
on that day at about 1:00 P.M.; that he and Gari Bibat took the said last final oral exam; that they
both left the room at the same time at 4:30 P.M.
Rogelio Robles - (was recalled to the stand to testify contrary to what he had previously stated in
court). He testified inter alia that he did not really see what transpired on October 14, 1992 at 1:30
oclock in 6the (sic) afternoon; that he only assisted the parents of the victim because they come
from the same place; that the father of the victim handed to him the handwritten statement which
he (witness) based his previous testimony; that he did not actually see the killing.
On December 27, 1995, the court a quo handed down its decision in question; disposing, thus:
Wherefore, with all the foregoing, the Court finds the accused GARI BIBAT Y Descargar, guilty
beyond reasonable doubt of the crime of MURDER and hereby sentences him to suffer the penalty
of reclusion perpetua; to indemnify the heirs of the victim in the amount of P49,786.14 as actual
damages; and to pay P50,000.00 as and for moral damages, with costs.
SO ORDERED.
Appellant places reliance on the assignment of errors, that:
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE
TESTIMONIES OF THE ALLEGED EYEWITNESSES NONA AVILA CINCO AND ROGELIO
ROBLES.
II
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE VERSION OF ACCUSED-

APPELLANT THAT HE WAS NOT AT THE SCENE OF THE CRIME WHEN THE SAME
HAPPENED.
III
THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE

OF EVIDENT PREMEDITATION.
FIRST ISSUE:
CREDIBILITY OF PROSECUTION WITNESSES
The Court discerns no basis for disturbing the finding and conclusion arrived at below on the
credibility of the prosecution witnesses.
In the matter of credibility of witnesses, we reiterate the familiar and well-entrenched rule that the
factual findings of the trial court should be respected. The judge a quo was in a better position to
pass judgment on the credibility of witnesses, having personally heard them when they testified
and observed their deportment and manner of testifying. It is doctrinally settled that the evaluation
of the testimony of the witnesses by the trial court is received on appeal with the highest respect,
because it had the opportunity to observe the witnesses on the stand and detect if they were telling
the truth. This assessment is binding upon the appellate court in the absence of a clear showing
that it was reached arbitrarily or that the trial court had plainly overlooked certain facts of
substance or value that if considered might affect the result of the case.[3]
As well explained by the Solicitor General, Persons do not necessarily react uniformly to a given
situation, for what is natural to one may be strange to another.[4] Verily, there is no standard form
of human behavioral response when one is confronted with a strange and startling experience.[5]
It was thus natural for Nona Cinco to just have stayed at the sidelines. She is a woman who could
not have prevented the armed appellant from stabbing the victim, anyway. The suddenness of the
happening and Nona Cincos fear for her own life must have prevented her from shouting for help.
[6]
Delay in divulging the name of the perpetrator of the crime, if sufficiently reasoned out, does not
impair the credibility of a witness and his testimony nor destroy its probative value. It has become
judicial notice that fear of reprisal is a valid cause for the momentary silence of the prosecution
witness.[7]
In the case at bench, witness Nona Avila Cinco gave an eyewitness account of the killing
complained of in a categorical and straightforward manner.
Appellant belittles the fact that Nona Cinco remembers the stabbing incident to the minutest
details. According to him, this is alright if the crime just happened, or after the happening of the
crime, the witness FORTHWITH reported the matter to the proper authorities. Unfortunately, the
witness reported the said incident after NINE (9) LONG MONTHS.
It does not appear that it was impossible for Nona Cinco to have a detailed recollection of the
stabbing sued upon. Even before the incident, she already saw the accused with some companions
inside Funeraria Gloria and overheard the plan to kill someone. At that time, she was only about
one (1) meter from the accused and his companions. And when she proceeded to Honrades Street,
she and the accused walked along with and even looked at each other.
At the time when the stabbing in question was taking place, Nona Cinco was only four to five
meters away. The possibility of her recalling even the minutest details cannot therefore be ruled
out.
Appellant faults Nona Cinco for reporting the stabbing incident to the police authorities only after
nine (9) months, and for her apparent indifference during the incident, doing nothing even while
witnessing a cruel and gruesome crime.
Appellant also theorizes that Nona Cinco was lying when she testified that she was taking bets for
a PBA game on October 14,1992, a Wednesday. Claiming that PBA games are held only on
Tuesdays, Thursdays and Saturdays; appellant concludes that She lies on a simple or minor thing,
all the more, she can lie on a bigger scale.
On the other hand, the Solicitor General pointed out that: There are 100 combinations which
bettors can try their luck on the so-called PBA game ending and, therefore, 100 corresponding bets
should be collected for maximum profit. It was not farfetched, therefore, for Nona Cinco to collect
bets a day or two before the actual PBA games which would decide the winning bet.
Besides, the lie alluded pertains to an insignificant matter which does not affect the material
details of the stabbing incident, and the unequivocal eyewitness account of the killing of the
victim, Lloyd del Rosario. The maxim or rule falsus in unos, falsus in omnibus does not lay down
a categorical test of credibility. It is not a positive rule of law of universal application. It should
not be applied to portions of the testimony corroborated by other evidence particularly where the
false portions could be innocent mistakes. Moreover, the rule is not mandatory but merely
sanctions a disregard of the testimony of the witness if the circumstances so warrant. To
completely disregard all the testimony of a witness on this ground, his testimony must have been
false as to a material point, and the witness must have a conscious and deliberate intention to
falsify a material point.[8]
SECOND ISSUE:
THE DEFENSE OF ALIBI
The accused relies on the defense of alibi, an inherently weak defense.[9] In a long line of cases,
this court has held that alibi is generally considered a weak defense because of the facility with
which it can be fabricated. Thus, courts have always looked upon it with suspicion. Well-settled is
the rule that for alibi to prevail, it must be established by positive, clear and satisfactory proof that
it was physically impossible for the accused to have been at the scene of the crime at the time of
its commission, and not merely that he was somewhere else.[10]
Appellant failed to convince the court that it was physically impossible for him to be at the scene
of the crime at G. Tuazon cor. Ma. Cristina Sts. He claimed that during the stabbing incident at
around 1:30 p.m., he was reviewing for an oral examination in his subject of Computer 2 at the
Arellano University. But as the trial court noted, the situs of the crime was not far from Arellano
University such that granting arguendo that the accused was initially at the Arellano University, he
could have easily sneaked back to the scene of the crime considering that the two places are just
near each other.[11]
To buttress his theory that he was actually reviewing for his final oral examination in Computer 2
at the very time the crime occurred, he alleged that he received a grade of 2.25 in said subject. But
aside from his testimony and that of Lino Asuncion, no other evidence was presented to
substantiate this submission. Appellant should have, at least, exhibited his class card or grading
sheet to show that he did really take an examination in that subject.
Furthermore, positive identification, where categorical and consistent and without any showing of
ill motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial
which, if not substantiated by clear and convincing evidence, are negative and self-serving
evidence undeserving of weight in law.[12]
In the instant case, prosecution witness Nona Cinco positively identified appellant as the culprit.
Another prosecution witness, Rogelio Robles, testified to the actual killing of the victim by
appellant. Although the latter recanted, the lower court correctly held that the later retraction made
by Rogelio Robles does not by itself render his previous testimony false or perjured because the
same testimony appears to be credible and worthy of belief.[13] Then too, affidavits of recantation
are considered as exceedingly unreliable because they can be easily secured from poor and
ignorant witnesses usually for monetary consideration and most likely to be repudiated afterwards.
[14]
THIRD ISSUE:
THE PRESENCE OR ABSENCE OF EVIDENT PREMEDITATION
Appellant argues that the trial court erroneously appreciated evident premeditation against him.
Assuming for the sake of argument that he is the felon, the crime he committed is not MURDER
but HOMICIDE,[15] he maintains.
Appellant correctly states the rule that the circumstance which would qualify the killing to murder
must be proved as convincingly as the crime itself.[16]
Here, we are of the irresistible conclusion that the attendance of evident premeditation to qualify
the killing complained of to murder is borne out by the evidence.
There is evident premeditation when the following requisites are met:
1. The time when the offender determined (conceived) to commit the crime;
2. An act manifestly indicating that the culprit has clung to his determination; and
3. A sufficient lapse of time between the determination and execution to allow him to reflect upon
the consequences of his act.[17]
The essence of premeditation is that the execution of the criminal act is preceded by cool thought
and reflection upon the resolution to carry out the criminal intent during the space of time
sufficient to arrive at a calm judgment.[18]
The appellant, in his brief, implies that the first requisite of evident premeditation was not
sufficiently proven, contending, that:
xxx the aggravating circumstance of evident premeditation was appreciated by the trial court
based solely on the testimony of witness Rogelio Robles. The said witness testified that accused-
appellant and several others often met in his (Rogelio Robles) house. In one of their meetings,
accused-appellant and his companions hid some guns and tusok in the said witness house. Other
than these testimonies, the trial court proffered no other rationale to justify the application of
evident premeditation.[19]
At first glance, it may seem that the first requisite of evident premeditation, [i.e. the time when the
offender determined (conceived) to commit the crime], was appreciated by the lower court solely
on the basis of the testimony of Rogelio Robles.
Appellant theorizes that the testimony of Robles is not believable; ratiocinating, thus :
xxx such testimonies which were retracted by Rogelio Robles cannot by any yardstick be
considered credible in itself. It simply defy human experience. For evidence to be believed, it is
basic that it must not only proceed from the mouth of a credible witness, but it must be
CREDIBLE IN ITSELF. (Emphasis supplied; Layug v. Sandiganbayan and People of the Phil.,
supra; Tuason v. C.A., supra; Lee Eng Hong v. C.A., 241 SCRA 392) If it were true that accused-
appellant and several others planned the subject killing, they would not be crazy enough to have
openly discussed the same in the presence of another person (TSN, June 30, 1994, p. 9). They
would be very discreet about it because even the most unlearned or unschooled person would
know that killing is against the law of man and of God. If indeed they have planned it, they did it
in complete secrecy. More, there is no explanation why of all places, accused-appellant and his
group met at Rogelio Robles house. The latter is only the neighbor of the alleged president of the
formers organization. Worse, accused-appellant and his group hid some guns (Ibid., p. 11) and
tusoks (Ibid., p. 22), in Rogelio Robles house. Any person who is in his right frame of mind would
not allow anybody to use his house as an armory so to speak or for any illegal purposes.
Appellant faults Rogelio Robles for his utter lack of concern knowing fully well that the appellant
and his companions were planning to kill someone and even allowed them to hide guns and tusok
in his house. But the reason for the apparent indifference of Robles could be gleaned from the
following revelation :
ATTY. CALIMAG:
Q - And when they left your house and took the tusok and left the guns, you know very well from
Tonton Montero that they are going to kill somebody, am I right?
A - In school. I did not know that the one they will kill is from my place.
Q - Now, my question you know that they are going to kill somebody, what did you do, if any as a
concerned citizen?
A - What if they turn their ire on me.

COURT:
Aside from that English translation, you put on record the Tagalog answer of the witness: a Eh,
kung ako naman ang pagbalingan.
ATTY. CALIMAG
Q - Now, Mr. Witness, why it took you so long to come out and testify, if you really know the
truth about this matter?
A - Because the parents of the victim were still mad or angry, what would happen to me if I tell
them early, what if they said that I am a part of it.
Q - Why, what do you think about yourself, are you not a part of it, Mr. Witness? Because you
failed to report this matter immediately to the police officer?
A - I kept it to myself for fear that my brother and sisters might be involved, what will happen to
me.
Fully aware that the appellant and his companions were armed with guns and tusok, it was but
natural for Robles to just observe the protagonists and not get involved. Fear for his own life and
that of his family may have overcome whatever humanitarian inclination he had as a concerned
citizen.
Besides, even without the testimony of Rogelio Robles, the presence of the first requisite of
evident premeditation appears to have been thoroughly and sufficiently established. The
determination or conception of the plan to kill the victim could be deduced from the outward
circumstances that happened on the fateful day of October 14, 1992. Records show that at 11:30 in
the morning of October 14, 1992, prosecution witness Nona Cinco saw the accused with some
companions at Funeraria Gloria. She personally heard the plan to kill someone. Another
prosecution witness, Florencio Castro, who works at the Funeraria Gloria also saw the group of
Gari Bibat in the said place. At around 1:30 in the afternoon, Nona Cinco saw the appellant for the
second time. She saw the appellant hurry towards the victim, take a pointed thing from a notebook
and with the use of such weapon, stabbed the victim on the chest. These overt acts clearly evinced
that the appellant clung to his resolution to kill the victim.
From the time Nona Cinco heard the plan to kill someone at 11:30 up to the killing incident at
1:30 in the afternoon of the same day, there was a sufficient lapse of time for appellant to reflect
on the consequences of his dastardly act.
As held in the case of People v. Dumdum[20] the killing of the deceased was aggravated by
evident premeditation, because the accused conceived of the assault at least one hour before its
perpetration. In the case under examination, two hours had elapsed from the time appellant clung
to his determination to kill the victim up to the actual perpetration of the crime.
WHEREFORE, the Decision appealed from is hereby AFFIRMED. Costs against accused-
appellant.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, and Kapunan, JJ., concur.
[1] TSN, September 30, 1993, pp. 8-9, cited in Decision, p. 2.
[2] Ibid., p. 18, cited in Ibid.
[3] People v. Morales, 241 SCRA 267, 273, February 13, 1995; citing People v. Jacalan, 230
SCRA 1, February 10, 1994, People v. Abo, 230 SCRA 612, March 2, 1994, and People v.
Revillame, 230 SCRA 650, March 3, 1994.
[4] People v. Cabrera, 241 SCRA 28 [1995].
[5] People v. Paricia, 243 SCRA 557 [1995].
[6] Appellees Brief, pp. 16-17.
[7] People v. Villanueva, 4 March 1995.
[8] People v. Pacapac, 7 September 1995, 248 SCRA 77, 89.
[9] People v. Bocatcat, Sr., 188 SCRA 175
[10] People v. Magana, G.R. No. 105673, p. 14, July 26, 1996; citing People v. Cortes, 226 SCRA
91, September 3, 1991; People v. Marquez, 153 SCRA 700, September 14, 1987; and People v.
Nescio, 239 SCRA 493, December 28, 1994.
[11] Decision , p. 6.
[12] People v. Amonia, 248 SCRA 486, 493, September 21, 1995.
[13] Decision, p. 6.
[14] People v. Celedonia de Leon, et al., G.R. No. 110558, July 3, 1995.
[15] Appellants Brief, p. 10.
[16] People v. Machete, 231 SCRA 272, cited in Ibid.

[17] People v. Leano, C.A. 36 O.G. 1120; People v. Diva, et al., G. R. No. L-22946, April 29,
1968; People v. Lagarto, 196 SCRA 611 [1991].
[18] People v. Durante, 53 Phil 363, cited in LUIS B. REYES, THE REVISED PENAL CODE:
CRIMINAL LAW, BOOK ONE, Twelfth Edition (1981), p. 378, Emphasis in the original text.
[19] Appellants Brief , pp. 10-11.
[20] 92 SCRA 198 [1978].
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SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 95756 May 14, 1993

vs.
CRISOLOGO EMPACIS, accused-appellant.
Antonio A. Almirante, Jr. for accused-appellant.
NARVASA, C.J.:
In the Regional Trial Court of Cebu City,1 five men, namely: Crisologo Empacis, Romualdo
Langomez, Zacarias Solis, Carlito Antiga, and Bebe Antiga, were indicated for the crime of
robbery with homicide under Article 294 (1), in relation to Article 296, of the Revised Penal
Code.2 The indictment reads as follows:
That on the 16th day of September, 1986 at 9:00 o'clock in the evening, more or less, in Barangay
Kanguha, Municipality of dumanjug, Province of Debu . . . (said) accused, all armed with carbines
and bladed weapons, conspiring, confederating and mutually helping one another, with evident
premeditation and intent to kill, treacherously attack, assault and use personal violence upon
FIDEL SAROMINES by stabbing him on different parts of his body and as a result of which
FIDEL SAROMINES died; that on the occassion of the said killing, in pursuance of their
conspiracy, . . . (the) accused did then and there wilfully, unlawfully and feloniously, and by
means of violence, with intent to gain and against the will of FIDEL SAROMINES, TAKE,
STEAL AND CARRY AWAY the sum of TWELVE THOUSAND (P12,000.00) PESOS,
Philippine Currency, belonging to the latter.
That the crime was committed by a band, all the accused being armed with carbines and bladed
weapons (Article 296, RPC).
IN VIOLATION of and contrary to ARTICLE 294 paragraph 1 of the Revised Penal Code.
All the accused, except Romualdo Langomez, were thereafter taken into custody. Langomez
disappeared, and was never apprehended and brought to trial.3 In due course, the other accused
were arrainged and tried.
Sometime in December, 1987, during the trial, Carlito Antiga died from a gunshot wound.4
The trial eventuated in a verdict of conviction against Crisologo Empacis, and of acquittal as
regards Zacarias Solis and Bebe Antiga. The Trial Court's judgment, dated October 24, 1989,
made the following final disposition:5
WHEREFORE, the Court finds the accused Crisologo Empacis guilty of robbery with homicide as
defined and penalized under Article 294 (1) of the Revised Penal Code, and considering the
attendance of the four generic aggravating circumstances of dwelling, nighttime, craft or fraud and
superior strength, not offset by any mitigating or extenuating circumstance, hereby sentences the
said accused Crisologo Empacis to the supreme penalty of death. In view of the fact, however, that
the death penalty has been abolished by Section 19(1), Article III of the 1987 Constitution,6 the
accused Crisologo Empacis is hereby sentenced to reclusion perpetua, to suffer the accessory
penalties prescribed by law and to pay the heirs of Fidel Saromines the amount of THIRTY
THOUSAND PESOS (P30,000.00) by way of death indemnity, without subsidiary imprisonment
in case of insolvency in view of the principal penalty. He shall also pay the costs of these
proceedings.
The accused Crisologo Empacis is hereby immediately ordered arrested and held in the custody of
the law pending appeal or review of this decision, should the accused wish to appeal from or take
up on review this decision.
The other two accused Zacarias or Caring Solis and Bebe Antiga are hereby acquitted of the
charges against them, their guilt not having been proved beyond a reasonable doubt.
Let a bench warrant issue against the fifth accused in this case, Romualdo a.k.a. Maldo Langomez
so that he can be brought to court to be dealt with accordingly.
The Trial Court accorded superior credit to the evidence of the prosecution in so far as it
established Empacis' direct participation in the felony charged, to wit: the testimony of the widow
of victim, Camila Saromines; of their son, Peter Saromines; and of a neighbor, Balbino Bulak,
which the Court found to be corroborated inter alia by the Post Mortem Report dated September
17, 1986 of the Rural Health Physician at Dumanjug, Cebu (Dr. Octavio Ortiz), and even by the
testimony of accused Crisologo Empacis himself.7
Following is the story narrated to the Trail Court by the Government witnesses.
At about 9 o'clock on the night of September 16, 1986, as Fidel Saromines and his wife, Camila,
were about to close to their small store, located in their house at Kanguha, Dumanjug, Cebu, two
men came and asked to buy some sardines and rice. They were Romualdo (or Maldo) Langomez
and Crisologo Empacis. Camila served them and they proceeded to make a meal of the rice and
sardines.
After they finished eating, Romualdo told Fidel to sell him cigarettes. As Fidel was handing over
the cigarettes, Romualdo announced a "hold-up" and commanded Fidel to give up his money. As it
happened, Fidel then had P12,000.00 in his house, wrapped in cellophane. This he started to give
to Romualdo but as the latter was taking hold of the packet, Fidel suddenly decided to fight to
keep his money. A struggle followed in the course of which Romualdo stabbed Fidel about three
times. Crisologo joined in and with his own knife also stabbed Fidel. At this time, gunshots were
heard outside of the house; and a neighbor of the Saromineses, Balbino Bulak, recognized one of
those doing the shooting as certain Carlito Antiga.8 A voice was heard from below saying, "Stab
him!"9 to which Langomez replied, "I already stabbed (him)."10
From his little sister's room, Fidel's thirteen-year odl son, Peter, saw his father fighting for his life
with Romualdo and Crisologo Empacis. Heeding his father's cry, "Peter, help me!" (Suportahe ko,
Peter!), Peter took hold of a "pinuti" (a long bolo), and rushed to his father's defense. He struck
out at Crisologo and inflicted two wounds on him, one at the right shoulder, and the other, in the
neck. Romualdo and Crisologo jumped out of the house and fled, with the sound of Peter's defiant
shout trailing them, "Come back, if you are brave!"
Peter then turned to his wounded father, but found him already dead from his injuries. The post-
mortem examination conducted by Dr. Octavio Ortiz, Rural Health Physician, disclosed four (4)
stab wounds on the deceased, all in the upper back. Two of these, which penetraded the lungs and
heart, were
fatal.11
Crisologo Empacis repaired to the clinic of Dr. Eustaquio Deiparine at the poblacion of Sibonga,
Cebu, for treatment of the wounds inflicted on him by Peter, arriving there between 10 and 11
o'clock that same night. The doctor found Crisologo's wounds described by him as a "(hacking)
wound on the right side of the neck and the right shoulder" "so serious" as to require further
treatment, even after they had been sutured. Dr. Deiparine asked Crisologo how he had come by
these wounds. Crisologo said that at around 6 to 7 o'clock that evening, near the Papan Market, he
was assaulted without warning by a young man, who injured him with a bolo.
Police officers came to Dr. Deiparine's clinic the following morning, looking for a man might have
been treated for wounds from a bladed weapon. They were directed to the public market where
they came upon Crisologo, taking breakfast. They arrested him and brought him to the Dumanjug
INP Station. There, Crisologo was interrogated by the Station Commander, P/Pfc. Rogelio Abrea,
and gave a sworn statement.
Crisologo was later brought to Municipal Judge Gerardo Gestopa, before whom he took oath on
his affidavit. Before admnistering the oath, the Judge had a law graduate, one Victor Esguerra,
called to assist Crisologo and verify if he had voluntarily executed his sworn statement.
The three (3) accused all took the witness stand in their defense,12 and gave stories different from
that of the prosecution witnesses.
Empacis confirmed the facts established by the prosecution witnesses, up to a point. He admitted
that he and Romualdo Langomez had indeed gone to the store of Fidel Saromines on the night in
question, and had there partaken of a meal of sardines and rice. He also acknowledged that after
taking their supper, Romualdo Langomez had gone upstairs to buy some cigarettes from Fidel, and
it was there the moments later, he saw Romualdo and Fidel grappling with each other. He denies
having joined Romualdo in attacking Fidel. He claims that when he saw Romualdo pull out a
knife, he tried to stop Romualdo from using the knife on his adversary; that nonetheless,
Romualdo succeeded in stabbing Fidel twice; that a teen-age boy came with a bolo and lashed out
at Romualdo but the latter was not hit because he pulled him to one side, and instead it was he
(Empacis) who was struck at the right side of the neck; that he then ran away towards his barrio
and from there he was brought by his neighbors to the clinic of Dr. Deiparine; that he was arrested
by the police the following morning; that while being investigated at the municipal hall of
Dumanjug, he told the investigator he wished to avail of the assistance of counsel but his request
went unheeded; and that while being interrogated, some policemen were inflicting pain on him by
squeezing his injured back in order to force him to admit his participation in the robbery-homicide
at Kanguha, Dumanjug.13
The other two accused, Zacarias Solis and Bebe Antiga, denied any participation whatever in the
crime. They were both absolved by the Trial Court, which agreed with them that the prosecution
had indeed failed to clearly and positively and their complicity in the offense.14
The Court a quo rejected (quite correctly, it may be said) the sworn statement purpotedly execute
by Empacis on September 17, 1986, offered by the prosecution, condemning it was "null and void,
. . . offensive to Art. III, Section 20, of the New Constitution and the teachings of the Supreme
Court
. . . ."15 It ruled however that the other proofs of the prosecution overwhelmingly demonstrated
Crisologo Empacis' guilt of the crime charged, and accordingly entered a judgment of conviction
against him. It ruled that Empacis had committed the offense in conspiracy with Romualdo
Langomez (who was then and to this day remains at large); that both of them knew Fidel to be in
possession of a sizable amount of money at the time, and their concerted acts proved their
agreement to rob Fidel and if necessary, kill him. It also ruled that the crime was attended by
several aggravating circumstances, i. e., having been perpetrated (a) "in the dwelling of the
offended party . . . (the latter not having) given provocation,"16 (b) "in the nighttime;"17 (c) with
employment of "craft of fraud;"18 and (d) with advantage being taken of superior strength.19
From this judgment Empacis has appealed to this Court. His basic thesis is that the evidence of the
prosecution does not actually prove his guilt of the felony of which he is accused beyond
reasonable doubt.
A painstaking review of the record fails to reveal to this Court any error on the part of the Trial
Court of sufficient gravity to justify reversal or modification of its verdict. This Court is unable to
perceive any reason to doubt the veracity of the testimony of the victim's widow and son
respecting the identity of Romualdo Langomez and Crisologo Empacis as the persons who
attacked and killed Fidel Saromines in their effort to make off with the latter's money amounting
to P12,000.00, and the acts individually done by Romualdo and Crisologo in pursuance of their
common nefarious objective. Indeed, the narrative of the widow and son is, as already pointed out,
confirmed for the most part by the testimony of Crisologo Empacis himself. The latter's attempt to
exculpate himself, by portraying himself as a frustrated protector of Fidel Saromines, cannot be
taken at face value, as against the more credible declarations of the victims widow and son,
specially considering that Crisologo's credit as a witness has been gravely enfeebled by his having
obviously lied to the physician treating him, as regards the cause of his
injuries.20
The Court has been cited to no plausible cause for Fidel's widow and son to testify falsely against
Crisologo if it be true, as the latter insinuates, that either they had not seen the actual killing or,
having witnessed it, had seen Crisologo actually try to stop Romualdo from stabbing Fidel. No
reason exists, therefore, to disbelieve them.21 The fact that the victim's son, Peter, had to correct
his statement on direct examination that Romualdo Langomez stabbed his father five (5) times,
declaring, on cross-examination, that in truth Romualdo stabbed his father only about three times
while Crisologo Empacis stabbed the victim once which the appellant seeks to make capital
is not sufficient warrant to reject and discard Peter's evidence. The discrepacy is at best a minor
one, not all destructive of Peter's credibility as an unrehearsed witness. This Court agrees that the
Trial Court has correctly assessed the credit that should be accorded to the evidence of the
prosecution witnesses.
This Court also agrees that conspiracy is adequately proven by the evidence. Langomez and
Crisologo Empacis came to Fidel's store late at night, acting as bona fide customers. Immediately
after finishing their supper, they demanded the delivery to them of Fidel's money, of which they
evidently had prior knowledge, Crisologo lending silent support to his companion's order for Fidel
to turn over the money to them; they helped each other wrest the money away from Fidel and
subdue him by deadly knife thrusts; Romualdo stabbing Fidel thrice, Crisologo, once; they had
obviously arranged for shots to be fired from outside Fidel's store as a means of frightening Fidel
to submit to their command; and they fled from the scene, together. They acted in concert, helping
and cooperating with one another (and others) by simultaneous acts, evidently in pursuit of a
common objective.22
The aggravating circumstance of craft or fraud23 was properly appreciated against Empacis. He
and Romualdo pretended to be bona fide customers of the victim's store and on his pretext gained
entry into the latter's store and later, into another part of his dwelling. This Court has held
stratagems and ruses of this sort to constitute the aggravating circumstance of fraud or craft, e.g:
where the accused
a) pretended to be constabulary soldiers and by that ploy gained entry into the residence of their
prey whom they thereafter robbed and killed;24
b) pretended to be needful of medical treatment, and through this artifice, entered the house of
the victim whom they thereupon robbed and killed;25
c) pretended to be wayfarers who had lost their way and by this means gained entry into a
house, in which they then perpetrated the crime of robbery with homicide;26
d) pretended to be customer wanting to buy a bottle of wine;27
e) pretended to be co-passengers of the victim in a public utility vehicle;28
f) posed as customers wishing to buy cigarettes; and as being thristy, asking for drink of
water.29
The Court also agrees that nighttime was properly appreciated as an aggravating circumstance
against the accused. To be sure, nighttime is not per se aggravating.30 It must be shown that
nocturnity was deliberately and purposely sought to facilitate, or that it actually facilitated, the
commission of the crime.31 In the case at bar, the lateness of the hour no doubt precluded the
presence of other customers who could have deterred the felons, or come to the aid of the victim.
All things considered, there is adequate showing that nocturnity was deliberately sought by the
robbers and did in reality facilitate the perpetration of the felony.
For the aggravating circumstance of superior strength to be deemed present in a case, it does not
suffice to prove superiority in number on the part of the malefactors;32 it must appear that they
purposely employed excessive force, force out of proportion to the means of defense available to
the person attacked.33 In this case, the evidence shows that Empacis helped his co-accused by
also stabbing the victim; he and his companion took advantage of their combined strength and
their bladed weapons to overcome their unarmed victim and assure the success of their felonious
design to make off with his money.
That the crime was "committed in the dwelling of the offended party, . . . the latter . . . not
(having) given provacation," was also correctly appreciated as an aggravating circumstance.34
This Court thus sees no cause to deviate from the established axiom that the factual findings of the
Trial Court are accorded the highest respect on appeal, if not indeed regarded as conclusive, absent
any persuasive showing that material facts have been overlooked or ignored which might
otherwise dictate a different verdict.35
The Court a quo sentenced a Crisologo Empacis to pay the heirs of Fidel Saromines in the amount
of Thirty Thousand Pesos (P30,000.00) "by way of death indemnity." Pursuant to prevailing case
law,36 this indemnity must be increased to Fifty Thousand Pesos (P50,000.00). On the other hand,
despite the evidence given by Fidel Saromines' widow establishing the forcible taking from her
husband of the amount of P12,000.00 by Crisologo and Romualdo,37 the Trial Court somehow
omitted to require the return of said stolen money, as required by law.38
WHEREFORE, with the modification that the indemnity for death payable to the heirs of
Saromines is increased to P50.000.00 and restitution of the amount of P12,000.00 shall be made
by the accused, jointly and severally, the Decision of the Trial Court subject of this appeal is
hereby AFFIRMED.
IT IS SO ORDERED.
Padilla, Regalado and Nocon, JJ., concur.
# Footnotes
1 Branch 14.
2 The case was docketed as Criminal Case No. CBU-9567.
3 Rollo, p. 22.
4 Original record, p. 262.
5 Rollo, pp. 31-32.
6 Emphasis supplied. The italicized clause is incorrect. The cited constitutional provision did
not "abolish" the death penalty. It simply declared that it shall NOT be imposed "unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides for it."
7 Rollo, pp. 22-27.
8 Carlito died during the trial. SEE p. 2, supra, and footnote 8 infra.
9 TSN, Aug. 10, 1987, p. 18.
10 Id., p. 19.
11 Id., pp. 22-24; Original Record, p. 6.
12 As aforestated, the fourth, Carlito Antigue, died a violent death during the trial: and the fifth
suspect, Romualdo Langomez, has remained, and the this day remains, at large.
13 Rollo, pp. 24-25.
14 Id., p. 26.
15 The Trial Court cited People v. Pascual, 109 SCRA 197; Morales v. Enrile, 121 SCRA 538;
People v. Galit, 135 SCRA 465; People v. Duhan, 142 SCRA 100; People v. Opida, 142 SCRA
295.
16 Par. 3, Art. 14, Revised Penal Code.
17 Par. 6, id.
18 Par. 14, id.
19 Par. 15, id.

20 SEE footnote 9 and related text, supra.
21 SEE Peo. v. Dimaano, June 15, 1992, citing Peo v. Gonzales, 182 SCRA 393 (1990).
22 SEE Peo v. Benitez, 202 SCRA 478; Peo v. Penones, 200 SCRA 624; Peo. v. Palino 183
SCRA 680; Peo. v. Alitao, 194 SCRA 120.
23 Par. 14, ART, 14, RPC.
24 Peo. v. Saquing, 30 SCRA 961 (SEE Aquino, the Revised Penal Code, 1988 ed., Vol. I, p.
374.
25 Peo. v. Casalme, 101 Phil. 1249.
26 Peo. v. Saulog, 74 Phil. 527.
27 Peo. v. Bundal, 3 Phil. 89.
28 Peo. v. Vallente, 144 SCRA 495.
29 Peo. v. Napili, 85 Phil. 521.
30 Peo. v. Serante, 152 SCRA 570.
31 Peo. v. Palon, 127 SCRA 529, 539 (1984), citing Peo. v. Garcia, 94 SCRA 14.
32 Peo. v. Maloloy-on, 189 SCRA 250 [1988].
33 Peo v. Carpio, 191 SCRA 108 [1990] citing Peo v. Cabato, 160 SCRA 101.
34 Aquino, The Revised Penal Code, 1976 ed., Vol. 1, p. 289. citing Valdez, 64 Phil. 860; Pinca,
114 Phil. 498.
35 SEE, e.g., Peo. v. Bravo, 180 SCRA 694, 699-700 (1989); Peo. v. Alitao, 194 SCRA 120,
126-127 (1991) Peo. v. Manantan, 196 SCRA 128, 131 (1991); Peo. v. Tugbo, 196 SCRA 133, 137
(1991).
36 SEE, e.g., Peo. v. Soriano, 196 SCRA 123; Peo. v. Sison, 189 SCRA 643; Peo. v. Sazon, 189
SCRA 700; Peo. v. Baguio, 196 SCRA 459.
37 TSN, May 29, 1987, pp. 9-12, 17.
38 Art. 104, Revised Penal Code; SEE Aquino, Revised Penal Code [Anno.]. 1987 ed., p. 842.
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SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 94534 July 2, 1992
vs.
RODRIGO BIGCAS y AMUNCIO and QUILIANO BUTRON y PEROCHO, accused-appellants.
REGALADO, J.:
Finding accused-appellants Rodrigo Bigcas and Quiliano Butron guilty beyond reasonable doubt
of killing one Ambrocio Palapar, the Regional Trial Court of Bohol, Branch IV in Tagbilaran City
1 imposed on them the penalty of "reclusion perpetua or life imprisonment" and to solidarily pay
the heirs of the victim "legal indemnity" of P30,000.00, actual damages in the amount of
P11,150.00, loss of earnings of P20,000.00 and the costs. 2
In an information dated October 13, 1988, appellants Butron and Bigcas were charged with
murder allegedly committed as follows:
That on or about the 25th day of July, 1988 at barangay Poblacion, municipality of Pilar, province
of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating together and mutually helping with (sic) each other, with intent
to kill, abuse of superior strength, and with treachery, by suddenly attacking the victim without
giving him the opportunity to defend himself and without justifiable cause, did then and there
wilfully, unlawfully, and feloniously attack, assault and stab one Ambrocio Palapar y Macarayan
with the use of a sharp-pointed bolo and a piece of wood thereby inflicting upon the vital parts of
the body of the victim mortal wounds or injuries which resulted directly to the immediate death of
the victim Ambrocio Palapar y Macarayan, to the damage and prejudice of the heirs of the said
victim.
Acts committed contrary to the provisions of Article 248 of the Revised Penal Code with the
aggravating circumstance of nighttime being purposely sought for (sic) or taken advantage of by
the accused to facilitate the commission of the crime. 3
Appellants pleaded not guilty when arraigned and, thereafter, trial on the merits ensued wherein,
predictably, the prosecution and the defense presented different versions of the circumstances
which gave rise to the alleged killing.
The version of the prosecution revolved basically around the testimonies of the two eyewitnesses,
Rosito Doydoy and Jesus Calape, with corroborative and supplementary testimonies on other
aspects furnished by Pfc. Ponciano Butron of the Integrated National Police Station at Pilar, Bohol
and Dr. Lourdes Atop-Tan, municipal health officer of the same town.
Rosito Doydoy testified that after attending the last prayers for his uncle which ended at 8:30 in
the evening of July 25, 1988, he went home with his son, Rodel, to his house some two kilometers
away. On the way and at a distance of about twelve meters, Doydoy saw three persons involved in
a commotion. It was not so dark then as the moon was shining brightly. From behind tall cogon
grass, he saw appellant Butron strike Ambrocio Palapar two times with a piece of wood on the
latter's back. In his attempt to flee from his aggressor, Palapar passed beside witness Doydoy who
was then trying to hide himself and his son behind the bushes. Palapar was chased by appellant
Bigcas who, upon catching up with the former stabbed him twice with a bolo at the back. T
he chase continued until Bigcas was able to stab the victim again at the back of the latter's right
knee. The victim fell on the ground, after which he uttered, "Long, stop because I will die of these
wounds." Butron shouted at him saying, "I will kill you, Boyax." He then approached Palapar and
hit him twice with a piece of wood on the right jaw. Bigcas, on his part, stabbed the supine victim
several times. Thereafter, both appellants left the victim, with Butron telling Bigcas. "You own the
killing and these two bolos and I will be with you anywhere." 4
Jesus Calape, testified on essentially the same facts. He declared that he left his house at 9:00
o'clock that same night to go to the house of his "kumpadre Imo," whose real name is Maximo
Tiro, to borrow the latter's carabao as he wanted to haul posts for his house. He purposely went
there that night because Tiro is usually out of his house during daytime. While on his way, he saw
the victim Palapar being attacked by the two appellants. Butron hit Palapar twice with a piece of
wood at his back. Bigcas told the victim to fight but the latter refused. Palapar pleaded for his life
but appellant Bigcas instead stabbed him twice, also at the back. Due to his fear after seeing
Bigcas stab the victim, Calape ran home and told his wife what he witnessed. The next morning,
he heard that the victim died. 5
The defense, as expected, presented a version based principally on the testimonies of the two
appellants, Butron and Bigcas, which are hereunder summarized.
It is claimed that on July 28, 1988, at around 2:30 in the afternoon, Rodrigo Bigcas was at the
store of a certain Efren Butron at Buyong, Pilar. At about 6:30 P.M., Quiliano Butron arrived at the
same store. A few minutes later, Ambrocio Palapar, who was apparently already intoxicated,
arrived and drank 'tuba' with the group of Bigcas and Butron. Palapar requested for more drinks
but Quiliano Butron refused as he had no more money. Palapar got angry and called Butron stingy.
He challenged Butron to fight but the latter remonstrated with him. Palapar then placed his hand
on Butron's shoulders and told him not to worry. He thereafter held the waist of Butron, grabbed
the knife that was hanging from the latter's waist and challenged everybody to fight. Someone
reported the incident to the police and, later on, Pfc. Ponciano Butron responded together with
another policeman. Pfc. Butron took the knife from Palapar and ordered the latter to go home, but
he required Bigcas and Butron to stay a while and let Palapar leave ahead. Around fifteen minutes
after Palapar had left, Bigcas and Butron left together with some other persons. Butron walked
ahead as he was bringing something for his family. 6
Later, on their way, Bigcas and a certain Anasco met appellant Butron running and already
wounded. Out of fear, Anasco ran away. Bigcas brought Butron to surrender to the police at the
municipal building of Pilar, Bohol. Butron reported to the police that he was waylaid by Palapar
on his way home. Bigcas later accompanied Butron to the Simeon Toribio Hospital in Carmen,
Bohol where Butron was confined. 7 Butron complemented the foregoing testimony by narrating
that, on his way home, he saw Palapar standing in the middle of the road. He greeted Palapar by
his nickname "Boyax" but received no answer. As he was passing by Palapar, the latter suddenly
stabbed him with a bolo, hitting his stomach. He backtracked but the victim followed him and
gave him three stab thrusts which he parried. He was able to take hold of the victim's hand holding
the bolo and wrestled the same from him. Butron then repeatedly stabbed Palapar until the latter
fell. When he went to the police, he also surrendered the bolo used in the alleged killing. Butron
was brought by Bigcas and the police to the hospital where he was treated and confined for four
days. 8
After trial, the trial court rendered the assailed judgment. Not satisfied therewith, Butron and
Bigcas interposed the present appeal wherein they filed separate briefs through their respective
counsel.
Appellant Butron, for his part, argues that the court a quo erred (1) in failing to duly consider the
material evidence presented by the prosecution and the defense; (2) in disregarding the evidence
of self-defense which evidence constituted his defense; and (3) in finding him guilty of the crime
of murder. 9
Appellant Bigcas, on the other hand, contends that the trial court erred (1) in failing to give full
credence to the declaration of appellant Quiliano Butron, against his penal interest, that he alone
killed the victim, Ambrocio Palapar; (2) in convicting appellant Rodrigo Bigcas of murder despite
the failure of the prosecution to establish the presence of any of the qualifying circumstances; and
(3) in appreciating the aggravating circumstance of nocturnity. 10
The separate assignments of errors raised by both appellants are congruent in material points,
hence the same shall be jointly discussed in conjunction with each other.
A careful evaluation of the records of the case shows that appellants were correctly found guilty
by the court below for the death of Ambrosio Palapar and we see no reason for departing from the
factual findings of the trial court which resulted in its verdict of guilt.
We have perforce to state once again that this Court, in a long line of cases, has consistently held
that the findings of fact of a trial judge who has seen the witness testify and who has observed his
demeanor and conduct while on the witness stand are not disturbed on appeal, unless certain facts
of substance and value have been overlooked which, if considered, may affect the outcome of the
case. 11 We do not perceive any of such exceptive instances of oversight in the findings of fact of
the lower court in this case.
As found by said court and reflected by the transcripts of their testimonies, the witnesses for the
prosecution not only testified in a straightforward manner but the substance of their testimonies
inspire credence and are confirmed by the physical evidence. If there be some inconsistencies in
their declarations, the same refer only to minor matters which do not at all affect their credibility.
As we ruled in People vs. Mangalino, 12 minor inconsistencies in the testimonies of the witnesses
are but natural and even enhance their credibility, as these discrepancies indicate that the responses
given were honest and unrehearsed. This is especially true in the case at bar where said witnesses
had no motive whatsoever to prevaricate and enmesh appellants in a fabricated charge.
Appellant Butron interposed self-defense in order to disclaim criminal liability. He, however,
disregarded the rule that self-defense must he established by clear and convincing evidence. 13
Where an accused claims self-defense, the burden of proof is shifted to him. He must rely on the
strength of his own evidence and not on the weakness of the prosecution. 14 This is both a logical
and inevitable consequence dictated by the fact that, having admitted the killing, he has to justify
the taking of the victim's life by the requisites and standards of the law for such absolution.
It is elementary that for self-defense to prosper the accused must prove that there was unlawful
aggression by the victim, that he employed reasonable means to prevent or repel such aggression,
and that there was lack of sufficient provocation on his part. 15 Just as fundamental is the
overriding necessity to prove unlawful aggression on the part of the victim, absent which there is
no call to expound upon any consideration of self-defense in a case where a life has been taken.
Now, even granting arguendo some degree of truth to appellant Butron's allegations that he was
not armed when he left the store and that it was the victim who had the opportunity to secure a
weapon, 16 the same does not necessarily relieve him of liability. Appellant Butron himself
admitted that he was able to wrench the alleged weapon away from Palapar. Thereafter, the victim
fled, signifying thereby his intention not to fight and, from that moment, any supposed unlawful
aggression had already ceased. But, instead of letting the victim go, as the prosecution witnesses
testified and this is not seriously contested by the defense, appellants pursued Palapar,
immobilized him and stabbed him to death.
The theory of self-defense is based on the necessity on the part of the person attacked to prevent or
repel the unlawful aggression. When said danger or risk ceased to exist, appellants had no
justification in law or in fact to attack the erstwhile aggressor. Thus, as early as the case of People
vs. Alviar, 17 we held that when the accused, who had been attacked by the deceased, succeeded
in snatching the bolo away from the latter, and the deceased already manifested a refusal to fight,
the accused was definitely not justified in killing him. As more recently reiterated, the claim of
self-defense is not credible where the accused narrated that he had succeeded in disarming the
victim of the piece of wood (allegedly, a bolo in the case at bar) which the latter was carrying,
hence the act of the accused in thereafter stabbing the victim with frequency, frenzy and force can
no longer be considered as reasonably necessary. 18
Moreover, the results of the autopsy conducted by Dr. Lourdes Atop-Tan on the victim showed
that the latter sustained more or less thirteen wounds, as follows:
1. Stab wound on the anterior chest wall, 2 inches below the right nipple, 2 inches diameter, 4
inches deep, sharp edge posteriorly, round edge anteriorly penetrating the anterior chest wall,
penetrating the heart.
2. Stab wound on the anterior chest wall 3 inches above the right nipple, 2 inches diameter, 3
1/2 inches deep, sharp edge posteriorly, round edge anteriorly penetrating the anterior chest wall,
penetrating the heart.
3. Stab wound on the anterior abdomen at the epigastric region 2 inches diameter, 3 inches
deep, posterior edge sharp, anterior edge round penetrating the anterior abdomen, perforating the
stomach.
4. Stab wound on the right lumbar region, 2 inches diameter, 3 inches deep, anterior edge round,
posterior edge sharp, penetrating the right kidney.
5. Stab wound on the anterior abdominal region 1 inch below the umbilicus 2 inches
diameter, 1/2 inch deep, anterior edge round, posterior edge sharp, non-penetrating.
6. Stab wound on then right forearm 4 inches diameter, 1/2 inch deep.
7. Stab wound on the right arm 4 inches diameter, 1/2 inch deep.
8. Lacerated wound on the left arm, 4 inches diameter, 1 inch deep.
9. Lacerated wound on the left forearm 4 inches diameter, posteriorly.
10. Stab wound on the left palm, 2 inches diameter, 1 inch deep, round edge anteriorly, sharp
edge posteriorly.
11. Stab wound on the left lumbar region, 3 inches diameter, 1 inch anterior edge round,
posterior edge sharp and non-penetrating.
12. Stab wound on the posterior chest wall 3 inches diameter, 1/2 inch deep, 2 inches below the
left scapula.
13. Stab wound on the right foot, 2 inches diameter, 1/2 inch deep.
14. Hematoma and fracture of bone on the neck posterior 3 inches diameter reddish bluish. 19
Appellant Butron claims that he himself was wounded while he was wresting the knife away from
the victim. His own doctor, however, testified that his wounds in the stomach and on his neck
were merely superficial and admit of the possibility of having been self-inflicted. 20 As the trial
court observed, it is incredible that the victim who was supposedly wielding a bolo could only
inflict two small skin-deep wounds on the allegedly defenseless Butron.
The foregoing incontrovertible physical evidence, and a comparison of the wounds sustained by
appellant Butron and those inflicted, on the victim, clearly and undoubtedly belie appellant's
pretension of self-defense. For, to be consistent with existing jurisprudence, the nature and number
of wounds inflicted by an assailant are constantly and unremittingly considered important indicia
which disprove a plea of self-defense. 21 It is an affront on credulity to yield acceptance to
appellant's incredible theory that he had to inflict such number of lethal wounds while acting in
legitimate self-defense against an ironically defenseless person.
Appellants further contend that the act of eyewitnesses Doydoy and Calape of immediately going
home after having seen such a horrible crime is contrary to the natural and logical course of
things. We do not agree. In People vs. Caringal, 22 we stressed that the natural reluctance of any,
if not most, witnesses to volunteer information to the police authorities in a criminal investigation
is a matter of judicial notice. Such reticence is not uncommon, especially when the same arises out
of fear or apprehensions of reprisal from the perpetrators of the crime being investigated. Also, the
fact that a witness may have given his account of the incident only at the trial below and not
sooner neither necessarily impairs his credibility nor discredits his testimony. Witness Doydoy's
hesitancy, to inform his wife of the incident was further justifiedly explained by the fact that his
wife and appellant Bigcas' wife are sisters.
The trial court's holding that treachery cannot be appreciated as a qualifying circumstance against
appellants is correct, since there is no evidence that in the commission of the crime they
deliberately adopted means, methods or forms considered in law as treacherous. Its acceptance of
nocturnity as an aggravating circumstance, however, is erroneous. Even the prosecution witnesses
testified that, during the incident, the moon was shining brightly. The light was bright enough to
see what was going on and to recognize the assailants. Moreover, nocturnity neither facilitated the
commission of the crime nor was it purposely sought by appellants in order to afford impunity. It,
therefore, does not qualify as an aggravating circumstance under either the subjective or objective
tests laid down by this Court for it to be considered as such. 23
We are likewise not convinced that the crime was committed by appellants with abuse or by taking
advantage of superior strength. Regrettably, we can neither determine nor deduce from the
prosecution's sketchy evidence thereon what transpired before the "commotion" involving the
victims and appellants. The two eyewitnesses, Doydoy and Calape testified only on the fight when
it was already in progress but not as to the actuations of the parties proximately and immediately
before the altercation. On the other hand, following the version of the defense which was partly
confirmed by Pfc. Ponciano Butron, the victim was ordered by said policeman to leave the store of
Efren Butron ahead of the others, with appellants directed to stay behind for about fifteen minutes,
so that the parties would not encounter each other again shortly after the incident at said store.
It cannot, therefore, be said that when the fight took place more than fifteen minutes later, because
the victim instead of going straight home obviously waited for appellants to catch up with him,
appellants could have anticipated such an unexpected contingency and had accordingly conceived
of taking advantage of their combined strength and weapons.
For this qualifying circumstance to be considered, it is not sufficient that there be superiority in
number or strength; it is necessary that the accused must have cooperated and intended to use or
secure advantage from such superior strength. 24 As we also emphasized in People vs. Cabiling,
25 abuse of superior strength may be considered not only when there is an inequality of force
between the victim and the aggressor but there must be a situation of superiority of strength
notoriously selected or taken advantage of by him in the commission of the crime. We find that the
prosecution has fallen short of proof that appellants bad specifically contrived or deliberately
intended and prepared to take advantage of superior strength in a projected assault against the
victim. This requisite cannot be drawn from mere assumptions or conjectures, for qualifying
circumstances must be proved as conclusively as the crime itself. 26
Appellant Bigcas' disclaimer of liability, on the other hand, is likewise unavailing. There were two
eyewitnesses to the incident who testified that appellants Bigcas and Butron did act in a concerted
manner in bringing about the death of victim Palapar. This indicates the existence of conspiracy
between them, although such concurrence of wills arose and was adopted by appellants just
momentarily before attacking the victim.
Conspiracy already exists the moment two or more persons come to an agreement concerning the
commission of a felony and decide to commit it, 27 unlike the qualifying circumstances of
treachery and taking advantage of superior strength which require at least some prior deliberation
and adoption of a specific mode of commission. To establish conspiracy, prior agreement between
both accused to kill the victim is not essential for the same may be inferred from their own acts
showing a joint purpose or design, which was illustrated in this case, by the concerted acts of
appellants. 28
All told, it is our considered view that appellants have committed only the felony of homicide,
since treachery was not proved and abuse of superior strength cannot be considered against them.
Neither is the aggravating circumstance of nocturnity attendant in this case. On the contrary, what
has been completely overlooked is the fact that appellant Butron and, resolving the doubt in his
favor, appellant Bigcas are, as we hereby find them to be, entitled to the mitigating circumstance
of voluntary surrender which was established by their testimonies 29 and substantiated by Pfc.
Ponciano Butron. 30
WHEREFORE, the judgment appealed from is MODIFIED, with accused-appellants being hereby
DECLARED guilty of homicide, with due extenuation by voluntary surrender, and each of them is
hereby SENTENCED to serve an indeterminate sentence of ten (10) years of prision mayor, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal, maximum. The death
indemnity is hereby increased to P50,000.00 in accordance with current case law. 31 In all other
respects, the judgment of the court a quo is AFFIRMED.
SO ORDERED.
Narvasa, C.J., Padilla and Nocon, JJ., concur.
Footnotes
1 Judge Fernando S. Ruiz, presiding.

2 Rollo, 29.
3 Original Record, 38.
4 TSN, March 13, 1989, 12-16; March 14, 1989, 1-5.
5 TSN, March 15, 1989, 5-10.
6 TSN, November 9, 1989, 2-6; November 10, 1989, 2-6.
7 TSN, November 9, 1989, 6-9.
8 TSN, November 10, 1989, 7-12.
9 Brief for Appellant Quiliano Butron, 1; Rollo, 50.
10 Brief for Appellant Rodrigo Bigcas, 4; Rollo, 106.
11 People vs. Cruz, Sr., 151 SCRA 609 (1987); People vs. Mauyao, G.R. No. 84525, April 6,
1992; People vs. Hatague, et al., G.R. No. 97308, April 7, 1992.
12 182 SCRA 329 (1990).
13 Araneta, Jr. vs. Court of Appeals, et al., 187 SCRA 123 (1990).
14 People vs. Uribe, 182 SCRA 624 (1990).
15 Art. 11, par. 1, Revised Penal Code.
16 Brief for Appellant Butron, 6; Rollo, 55.
17 56 Phil. 98 (1931).
18 People vs. Masangkay, et al., 155 SCRA 113 (1987).
19 Exh. G; Original Record, 3.
20 TSN, February 5, 1990, 1-2.
21 People vs. Cuadra, 85 SCRA 576 (1978); People vs. Legaspi 151 SCRA 670 (1987);
Guevarra vs. Court of Appeals, et al., 187 SCRA 484 (1990).
22 176 SCRA 404 (1989).
23 People vs. Garcia, et al., 94 SCRA 14 (1979); People vs. Coderes, et al., 104 SCRA 255
(1981); People vs. Palon, 127 SCRA 529 (1984).
24 People vs. Pajarillo, et al., 94 SCRA 828 (1979); People vs. Casey, et al., 103 SCRA 21
(1981); People vs. Basas, 111 SCRA 288 (1982); People vs. Karunsiang Guiapar, et al., 129 SCRA
539 (1984).
25 74 SCRA 285 (1976).
26 People vs. Tiongson, 130 SCRA 614 (1984); People vs. Atienza, 148 SCRA 147 (1987).
27 Art. 8, Revised Penal Code.
28 People vs. Tachado, et al., 170 SCRA 611 (1989); People vs. Arroyo, et al., 201 SCRA 616
(1991); People vs. Moreno, et al., G.R. No. 94755, April 10, 1992.
29 TSN, Nov. 9, 1989, 7; Nov. 10, 1989, 10-11.
30 TSN, Mar. 13, 1989, 2-3.
31 People vs. Sazon, 189 SCRA 700 (1990).
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SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-32914 August 30, 1974
vs.
LAUREANO SANGALANG, accused-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Octavio R. Ramirez
and Solicitor Ma. Rosario Quetulio Losa for plaintiff-appellee.
Narciso V. Cruz, Jr. for accused-appellant.
AQUINO, J.:p
This is a murder case. The testimonies of the two prosecution eyewitnesses disclose that at around
six o'clock in the morning of June 9, 1968 Ricardo Cortez left his nipa hut located at Sitio Adlas,
Barrio Biluso, Silang, Cavite to gather tuba from a coconut tree nearby. Flora Sarno, his wife, was
left inside the hut. While he was on top of the tree gathering tuba, he was struck by a volley of
shots. He fell to the ground at the base of the coconut tree.
His wife Flora heard three successive shot coming south of the hut. She went outside the hut.
From a distance of about twenty-five meters, she saw five men, each armed with a long firearm,
firing at her husband. He was already wounded and was lying on the ground at the foot of the
coconut tree. His assailants were about five meters away from him.
She recognized Laureano Sangalang as one of the five armed men who were firing at her husband.
She and her brother Ricardo had known Sangalang since their childhood. She also recognized
Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the other malefactors.
Flora ran towards the place where her husband had fallen. She shouted, "Bakit ninyo pinagbabaril
ang aking asawa". The five persons fired at her. She was then about twenty meters away from
them. She retreated to the hut for cover. She heard some more shots. After the lapse of about five
minutes, Laureano Sangalang and his companions left the place. When Flora returned to the spot
where her husband was prostrate, he was already dead.
On the occasion already described, Ricardo Sarno, twenty-seven years old, a brother of Flora, was
inside his own nipa hut which was about ten meters away from Flora's hut. He was drinking
coffee. His wife and children were eating breakfast. He heard several shots. He came out of his
hut. He saw his brother-in-law being shot by Laureano Sangalang, Eleuterio Cuyom, Perino
Canuel, Irineo Canuel and Conrado Gonzales. He saw Sangalang using a Garand carbine in
shooting his brother-in-law. The latter fell from the top of the coconut tree after he was shot (10
tsn). His sister Flora was trying to approach her husband but she had to flee to her hut when
Sangalang and his companions fired at her. He wanted to join her but he was likewise fired upon
by the five men. So, he retired and took refuge in his own hut.
Later, Sarno saw his sister Flora, sitting inside her hut. He followed her after she left the hut and
went to see her dead husband, who was lying on the ground, face up, at the base of the coconut
tree. When he noticed that his brother-in-law was already dead, he gathered his children and
brought them to Sitio Biga, which was more or less thirty meters away from his hut in Sitio Adlas.
Ricardo reported the killing to the chief of police who went to the scene of the crime with some
policemen and Constabularymen.
The necropsy report shows that the twenty-five-year-old Cortez sustained twenty-three gunshot
wounds on the different parts of the body, fourteen of which were entrance-wounds, and nine were
exit-wounds (Exh. A and B). He died due to the multiple gunshot wounds (Exh. C).
On June 10, 1968 or on the day following the killing, Flora and Ricardo were interrogated by the
Silang police. They executed sworn statements before the Municipal Judge pointing to Laureano
Sangalang, Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the assassins
of Ricardo Cortez. Flora said in her statement that she knew those persons because from time to
time they used to pass by her place. They resided at Barrio Capitula, Dasmarias, which is near
Barrio Adlas. On the basis of those statements, the police filed on June 10 in the Municipal Court
a complaint for murder against the five aforenamed persons. Sangalang was arrested. He posted
bail in the sum of P50,000 on June 13. He waived the second stage of the preliminary
investigation. The other accused have not been apprehended. On August 8, 1968 the Provincial
Fiscal filed an information for murder against Sangalang.
After trial, the Court of First Instance of Cavite, Tagaytay City Branch, rendered a judgment
convicting Sangalang of murder, sentencing him to reclusion perpetua and ordering him to pay the
heirs of Ricardo Cortez an indemnity of twelve thousand pesos and to pay his widow moral
damages in the sum of ten thousand pesos (Criminal Case No. TG-162). Sangalang appealed.
The appellant, a fifty-six-year old farmer, admitted that he knew Cortez and that he knows his
wife, Flora Sarno. He pleaded an alibi. He declared that in the afternoon of June 8, 1968 he and
Crispulo Mendoza went to the house of Julian Gatdula at Dapitan Street, Sampaloc, Manila. He
arrived at Gatdula's place at six o'clock. He wanted to borrow money from Gatdula to defray the
matriculation fees of his children.
As Gatdula had no money at that time, he advised Sangalang to wait until morning. He would try
to raise the sum of two hundred pesos which Sangalang desired to borrow. Sangalang and
Mendoza agreed. They allegedly slept in Gatdula's house on the night of June 8th. The next
morning, they breakfasted in that house. At about ten o'clock on June 9, Gatdula delivered the two
hundred pesos to Sangalang. He and Mendoza then went to the Central Market in Manila and then
to Quiapo. They returned to Cavite and arrived at seven o'clock in the evening of June 9 in Barrio
Capdula. Gatdula and Mendoza corroborated Sangalang's alibi.
In this appeal Sangalang insists on his alibi and impugns the credibility of the prosecution
eyewitnesses, Mrs. Cortez and the victim's brother-in-law, Ricardo Sarno. The basic issue is
whether their eyewitness-testimony that they saw appellant Sangalang as one of the five armed
persons, who riddled Cortez with fourteen gunshot wounds of entry, is sufficient to overcome his
alibi. In essence, the case projects the ever recurring conflict in criminal jurisprudence between
positive identification and alibi.
The trial court rejected appellant's alibi. It noted that although his witnesses, Mendoza and
Gatdula, learned of his arrest, and Mendoza even visited him in the municipal jail, Sangalang and
his witnesses did not interpose the defense of alibi when he was investigated by the police and
when he was summoned at the preliminary investigation.
Sangalang points to certain discrepancies in the declarations of Mrs. Cortez and her brother
Ricardo Sarno. Those inconsistencies, which are not glaring, strengthen their credibility and show
that their testimonies were not coached nor rehearsed. The discrepancies may be attributed to
deficiencies in observation and recollection, or misapprehension of the misleading and confusing
questions during cross-examination, or to the defective translation of the questions and answers
but they do not necessarily indicate a wilful attempt to commit falsehood (People vs. Selfaison,
110 Phil. 839; People vs. Resayaga, L-23234, December 26, 1973, 54 SCRA 350).
The controlling fact is that Mrs. Cortez and Sarno clearly and consistently testified that they saw
Sangalang, a person already well-known to them, among the five armed persons who shot Ricardo
Cortez. That unwavering identification negates appellant's alibi.
The prosecution did not prove the motive for the killing. On the other hand, Sangalang did not
show that Mrs. Cortez and Sarno were impelled by a malicious desire to falsely incriminate him. .
Counsel de oficio meticulously examined the contradictions and deficiencies in the evidence for
the prosecution. He made a spirited defense of the appellant. However, his efforts failed to cast
any reasonable doubt on Sangalang's complicity in the killing.
The victim was shot while he was gathering tuba on top of a coconut tree. He was unarmed and
defenseless. He was not expecting to be assaulted. He did not give any immediate provocation.
The deliberate, surprise attack shows that Sangalang and his companions employed a mode of
execution which insured the killing without any risk to them arising from any defense which the
victim could have made. The qualifying circumstance of treachery (alevosia), which was alleged
in the information, was duly established (See art. 14[16], Revised Penal Code). Hence, the killing
can be categorized as murder (See People vs. Sedenio, 94 Phil. 1046). Treachery absorbs the
aggravating circumstance of band(U. S. vs. Abelinde, 1 Phil. 568). Evident premeditation, which
was alleged in the information, was not proven.
The trial court correctly imposed the penalty of reclusion perpetua on Sangalang (Arts. 64[1] and
248, Revised Penal Code).
Finding no error in its judgment, the same is affirmed with costs against the appellant.
SO ORDERED.
Zaldivar (Chairman), Fernando, Barredo and Fernandez, JJ., concur.
Antonio, J., took no take part.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-44274 January 22, 1980
vs.
LUISITO SAN PEDRO, et al., accused, ARTEMIO BANASIHAN, defendant-appellant.
Haydee B. Yorac for appellant.
Office of the Solicitor General for appellee.
PER CURIAM:
Automatic review of the death penalty imposed on appellant by the Court of First Instance of
Laguna, for the crime of robbery with homicide, committed, according to the evidence, and as
stated in the appellant's brief, which We quote, as follows:
In the afternoon of June 2, 1970, the lifeless body of a person was found somewhere between the
barrios of Masaya and Paciano Rizal Municipality of Bay, Laguna. The body was brought to the
municipal building of Bay for autopsy. Dr. Fe Manansala-Pantas, in her autopsy report, Exh. B,
noted that the deceased died of profuse hemorrhage due to 23 lacerated and stab wounds and
multiple abrasions found on the different parts of the body of the deceased.
The deceased was identified to be Felimon Rivera, a driver of a passenger jeep belonging to
Pablito delos Reyes, a fruit vendor. Earlier in the day, Rivera was out driving the jeep. But that
was to be the last time for him to drive the jeep for on that same day, he was killed, and his jeep
was no longer found or recovered.
It was not until June 11, 1971, that the police authorities found a concrete lead to the solution of
the case. Rodrigo Esguerra, when apprehended and interviewed by the police, admitted his
participation and named his companions. He gave a written statement, Exh. F. Soon the police
began rounding up the other suspects.
Artemio Banasihan was apprehended sometime in 1972. On March 3 of said year, he was
investigated by Sgt. Juan Tolentino of the Philippine Constabulary. He gave a statement which
was sworn to before the Acting Municipal Judge of Los Baos, Laguna, confessing his
participation in the robbery and killing of Felimon Rivera (Exh. H). In said statement, Banasihan
recounted that four days before June 2, 1970, he and his co-accused met and planned to get the
jeep driven by the deceased. Carrying out their plan, he and Luisito San Pedro approached Rivera
in the afternoon of June 2, 1970 and on the pretext of hiring Rivera's jeep to haul coconuts, they
proceeded to Bo. Puypuy in Bay, Laguna, where they were joined by Salvador Litan and Rodrigo
Esguerra. Esguerra was then carrying a water pipe wrapped in paper. Upon reaching a river
between the barrios of Mainit and Puypuy San Pedro ordered Rivera to stop. Whereupon, at
Esguerra's signal, Litan hit Rivera at the nape with the water pipe. Rivera jumped out of the jeep
but was chased by San Pedro and Litan who stabbed him at the back several times with a dagger.
Esguerra then drove the jeep and the group proceeded to Makati, Rizal, He then joined Nelson
Piso and Antonio Borja. The jeep was brought to Cavite City where it was sold for P2,000.00.
Four days later, Piso went to Los Baos and gave San Pedro, Litan and Banasihan P50.00 each,
with the promise that the balance would be given later. However, the promised balance was not
given them.
As synthesized above, the facts of the instant case are as also found by the trial court, which
appellant, through counsel de oficio, confesses inability to dispute. Admitting thus the accuracy of
the factual finding of the court a quo, appellant raises only questions of law, particularly in the
appreciation of the modifying circumstances proven by the evidence, with a view to reducing the
penalty of death as imposed, to reclusion perpetua as prayed for. This notwithstanding, We did not
relieve ourselves of the duty of reviewing the evidence, for the purpose of the proceedings before
Us is to discover any possible error, specifically in the appreciation of the evidence, that might
have been committed by the trial court that led to an improper imposition of the supreme penalty.
After undertaking the task, We express complete agreement that no reversible error has been
committed by the trial court as to the culpable participation of the appellant as one of the
perpetrators of the capital offense charged.
Specifically, the legal questions raised affecting the degree of culpability of appellant is whether
the aggravating circumstance of craft is absorbed by treachery, and whether the resulting single
aggravating circumstance of treachery should be offset by the mitigating circumstance of lack of
instruction, as appellant claims should be appreciated in his favor, thereby calling for the reduction
of the death penalty to that of life imprisonment.
We cannot subscribe to the theory of craft being absorbed by treachery, as nighttime and abuse of
superior strength may be so absorbed, as held in numerous decisions of this Court.' In the instant
case, craft was employed not with a view to making treachery more effective as nighttime and
abuse of superior strength would in the killing of the victim. It was directed actually towards
facilitating the taking of the jeep in the robbery scheme as planned by the culprits. From the
definition of treachery, it is manifest that the element of defense against bodily injury makes
treachery proper for consideration only in crimes against person as so explicitly provided by the
Revised Penal Code (Art. 14[16]).
Aside from the foregoing observation, decisional rulings argue against appellant's submission.
Thus in the case of U.S. vs. Gampona, et al., 36 Phil. 817 (1917) where the crime charged was
murder, qualified by treachery, craft was considered separately to aggravate the killing. Note that
in this cited case, the crime was killing alone, which has a weightier rationale. for, merging the
two aggravating circumstances, than when, as in crime of robbery with homicide, craft has a very
distinct application to the crime of robbery, separate and independent of the homicide. Yet, it was
held that craft and treachery were separate and distinct aggravating circumstances. The same
ruling was announced in People vs. Sakam, et al., 61 Phil. 27 (1934).
In People v. Malig, 83 Phil. 804, (1949) craft which consisted in luring the victim to another
barrio, was considered absorbed by treachery. This may be so because craft enhanced the
effectiveness of the means, method or form adopted in the execution of the crime, one against
persons, "which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make." Even so, the Court was divided in the
inclusion or absorption of craft by treachery. And again, the offense charged was one solely
against persons.
With the presence of two aggravating circumstances, craft and treachery, it would make no
difference even if the mitigating circumstance of lack of instruction were appreciated in
appellant's favor which is even doubtful from the fact alone, as was allegedly proven by the
testimony of appellant that he cannot read and write but can only sign his name (P. 9, t. s. n. Sept.
1, 1975). This, apart from the fact that as held categorically in the case of People vs. Enot, 6
SCRA 325 (1962) lack of instruction is not applicable to crimes of theft and robbery, much less to
the crime of homicide. The reason is that robbery and killing are, by their nature, wrongful acts,
and are manifestly so to the enlightened, equally as to the ignorant (People vs. Salip Manla et al.,
30 SCRA 389 [1969]).
As recently held by this Court, speaking through Justice Hermogenes Concepcion, Jr., the "criteria
in determining lack of instruction is not illiteracy alone, but rather lack of sufficient intelligence."
It is significant that neither to the trial court nor to the appellant's counsel has the mitigating
circumstance of lack of instruction entered the mind. No attempt was made to prove it, as direct
proof, not mere inference, is required, and must be invoked in the court below (People vs.
Mongado, et al., 28 SCRA 642, [1969]), the reason being that the trial court can best gauge a
person's level of intelligence from his manner of answering questions in court (People v. Manuel,
29 SCRA 337 [1969]). If the trial court did not consider the mitigating circumstance invoked for
the first time here on appeal, it must be because from appellant's testimony, and even more so
from his given occupation as a merchant (T.S.N., p. 3, Sept. 1, 1975), his alleged lack of
intelligence never suggested itself to the trial court or to his lawyer, as entitling him to the
mitigating circumstance of lack of instruction.
WHEREFORE, there being no error committed by the trial court, its decision imposing the death
penalty, together with the indemnity awarded, has to be, as it is hereby, affirmed.
SO ORDERED.
Teehankee, Barredo, Makasiar, Antonio, Concepcion, Jr., Santos, Fernandez, Guerrero, Abad
Santos, De Castro and Melencio Herrera, JJ., concur.
Fernando, C.J., took no part.
Separate Opinions
I concur in the result. Although Luisito San Pedro, Artemio Banasihan, Rodrigo Esguerra, Nelson
Piso and Antonio Borja were charged with robbery with homicide in the lower court (Salvador
Litan was not included in the charge), only Banasihan and Piso were arrested and brought to trial.
Banasihan was convicted of robbery with homicide and was sentenced to death. Piso was
convicted as an accessory. His case is not under automatic review.
Esguerra was later apprehended. He pleaded guilty and was sentenced to reclusion perpetua.
I think despoblado should also be considered aggravating. The malefactors used the victim's jeep
to bring him to an uninhabited place where he was killed with impunity. Hence, the death penalty
was properly imposed.
Separate Opinions
Separate Opinions

FIRST DIVISION
[G.R. No. 120282. April 20, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERT CASTILLO y MONES,

accused-appellant.
DECISION
PANGANIBAN, J.:
The trial court judge is not an idle arbiter during a trial. He can propound clarificatory questions to
witnesses in order to ferret out the truth. The impartiality of a judge cannot be assailed on the mere
ground that he asked such questions during the trial.
The Case
This is an appeal from the Decision[1] dated December 23, 1994 of the Regional Trial Court of
Quezon City, Branch 88, in Criminal Case No. Q-93-45235 convicting Robert Castillo y Mones of
murder and sentencing him to reclusion perpetua.[2]
On July 23, 1993, an amended Information[3] was filed by Assistant City Prosecutor Ralph S.
Lee, charging appellant with murder allegedly committed as follows:
That on or about the 25th day of May, 1993, in Quezon City, Philippines, the above-named
accused, with intent to kill[,] qualified by evident premeditation, use of superior strength and
treachery did then and there, willfully, unlawfully and feloniously assault, attack and employ
personal violence upon the person of one ANTONIO DOMETITA, by then and there stabbing him
with a bladed weapon[,] hitting him on his chest thereby inflicting upon him serious and mortal
wounds, which were the direct and immediate cause of his untimely death, to the damage and
prejudice of the heirs of the said ANTONIO DOMETITA.
CONTRARY TO LAW.
Upon arraignment, Appellant Castillo, assisted by Counsel Salacnib Baterina, entered a plea of not
guilty.[4] After trial in due course, appellant was convicted. The dispositive portion of the assailed
Decision reads:
WHEREFORE, premises considered, accused ROBERTO CASTILLO y MONES is found guilty

beyond reasonable doubt of the crime of Murder and [is] hereby sentenced to suffer [the] penalty
of reclusion perpetua. He is likewise ordered to pay the heirs of the deceased Antonio Dometita
actual damages in the sum of P60,000.00, the sum of P50,000.00 by way of indemnity for the
death of the victim and moral damages in the sum of P100,000.00. He is likewise ordered to pay
costs.
SO ORDERED.[5]
Hence, this appeal.[6]
The Facts
Evidence for the Prosecution
The Appellees Brief[7] presents the facts as follows:
On May 25, 1993, around one oclock in the morning, Eulogio Velasco, floor manager of the Cola
Pubhouse along EDSA, Project 7, Veterans Village, Quezon City, was sitting outside the Pubhouse
talking with his co-worker, Dorie. Soon, Antonio Tony Dometita, one of their customers, came out
of the pubhouse. As he passed by, he informed Eulogio that he was going home. When Tony
Dometita was about an armslength [sic] from Eulogio, however, appellant Robert Castillo
suddenly appeared and, without warning, stabbed Tony with a fan knife on his left chest. As Tony
pleaded for help, appellant stabbed him once more, hitting him on the left hand.
Responding to Tonys cry for help, Eulogio placed a chair between Tony and appellant to stop
appellant from further attacking Tony. He also shouted at Tony to run away. Tony ran towards the
other side of EDSA, but appellant pursued him.
Eulogio came to know later that Tony had died. His body was found outside the fence of the
Iglesia ni Cristo Compound, EDSA, Quezon City.
Dr. Bienvenido Munoz, the medico-legal officer who autopsied Tonys cadaver, testified that the
proximate cause of Tonys death was the stab wound on his left chest. Tony also suffered several
incised wounds and abrasions, indicating that he tried to resist the attack.[8]
Version of the Defense
On the other hand, the defense viewed the facts in this way: [9]
On May 25, 1993, the late Antonio Dometita was found dead by the police officers at the alley on
the right side of the Iglesia ni Cristo Church at EDSA in Bago Bantay.
It is the theory of the prosecution that the deceased Antonio Dometita was stabbed by the accused
Robert Castillo y Mones as testified to by Leo Velasco. The corroboration of Leo Velascos
testimony is that of Melinda Mercado who (tsn Oct. 11, 1993) stated that Leo Velasco informed
her that Dometita was stabbed. Robert Castillo was walking away from the pubhouse with the
bladed weapon. Leo Velasco himself detailed the way Castillo stabbed the deceased Antonio
Dometita.
On the other hand the defense claims that the deceased died in the alley at the right side of the
church. That decedent Dometita was attacked by two malefactors as testified to by Edilberto
Marcelino, a tricycle driver who saw two people ganging up on a third. The same witness saw the
victim falling to the ground. (TSN January 5, 1994, page 8). A report of Edilberto Marcelino to the
Barangay Tanods Office was made in the blotter of the Barangay and the extract (xerox of the
page) was marked as Exhibit 2.
The Trial Courts Ruling
The court a quo gave full credence to the testimonies of the two prosecution witnesses, who
positively identified the appellant as the killer. It explained:
From the testimonies of the witnesses of the prosecution and the defense, it can be gleaned that the
accused, to exculpate himself from the liability, clung to the defense of alibi[,] saying that he was
not at the place where the incident took place at the time of the killing. This was supported by the
testimony of his mother and his neighbor and guide Malikdem. This, however, is contradicted by
the testimonies of the two eyewitnesses of the prosecution who positively identified accused as the
person who stabbed the victim. While the testimony of Mercado is to the effect that she did not
actually see the accused hit the victim, she however, saw him walking away and carrying a bladed
weapon at the scene of the crime. Velasco on the other hand, actually saw him lunged [sic] his fan
knife at the victim. These were further strengthened by the findings of the medico-legal officer
that the weapon used in killing the victim [was] similar to a balisong.[10]
The trial court also found that the killing was qualified by abuse of superior strength, because the
accused used a deadly weapon in surprising the victim who [was] unarmed. Although treachery
was present, the trial court held that this was absorbed by abuse of superior strength.
The Issues
The appellant raises the following assignment of errors:[11]
That the trial court failed to appreciate the evidence presented by the accused that there was a
stabbing/mauling incident at the side street near the Iglesia ni Cristo Church at Edsa-Bago Bantay,
Quezon City (at about the time of the alleged stabbing of victime [sic] Antonio Dometita
according to the prosecution version), the same evidence for the accused being butressed and
supported by the barangay blotter, marked Exhibit 2.
II
That the trial court failed to appreciate the implications of: the medical finding that the heart and
the lungs of the victim were impaled; that according to the testimony of the prosecution witness,
PO3 Manolito Estacio, the victim was found at the side street near the Iglesia ni Cristo Church;
and that that side street distant from the place the witnesses for the prosecution stated the victim
was stabbed. These matters create reasonable doubt as to the guilt of the accused and cast distrust
on the testimony of the witness Eulogio Velasco who allegedly witnessed the stabbing of the
victim.
III
That the trial court in many instances showed its prejudice against the accused and in several
instances asked questions that [were] well within the duty of the prosecution to explore and ask; it
never appreciated other matters favorable to the accused, like the frontal infliction of the mortal
wound and the presence [of] defense wounds which negate treachery and superiority.
IV
That the trial judge was bias[ed] against the accused hence the judgement of conviction.
In the main, appellant questions the trial judges (1) assessment of the credibility of the witnesses
and their testimonies and (2) alleged partiality in favor of the prosecution as shown by his
participation in the examination of witnesses.
This Courts Ruling
The appeal is bereft of merit.
First Issue: Credibility of Witnesses
Time and again, this Court has adhered to the rule that the factual findings[12] of the trial court, as
well as its assessment of the credibility of witnesses,[13] are entitled to great weight and are even
conclusive and binding, barring arbitrariness and oversight of some fact or circumstance of weight
and substance. The evaluation of the credibility of witnesses is a matter that peculiarly falls within
the power of the trial court, as it has the opportunity to watch and observe the demeanor and
behavior of the witnesses on the stand.[14] In this case, appellant failed to provide any substantial
argument to warrant a departure from this rule.
The testimony of Prosecution Witness Eulogio Velasco that he saw the appellant stab the victim is
clear and unequivocal. He was sitting outside the pub house when the victim came out. Dometita,
who was then only an arms length away from him, turned around to say goodbye when, suddenly,
the accused came out of nowhere and stabbed the victim. Velasco narrated further that the victim
asked him for help; so he responded by placing a chair between the victim and the appellant to
block the assault of the accused.[15] Thereafter, he told Dometita to run away. The accused then
chased the victim towards the other side of EDSA.[16] The relevant portions of Velascos
testimony are reproduced hereunder:
Q Immediately thereafter, was there any unusual incident that happened?
A When Dorie went inside the pub house, that was the time Tony went out, sir.
COURT:
Q Who is this Tony?
A Antonio Dimatita alias Tony, Your Honor.
PROS. LEE:
Q When Antonio Dimatita [sic] alias Tony went out, what happened?
A Tony asked permission from me that he will go home, sir.

Q And what happened thereafter?
A When he ha[d] not gone far yet from me, Robert Castillo suddenly attacked him and stabbed
him, sir.
Q What happened to Antonio Dimatita [sic] alias Tony when he was stabbed by accused Robert
Castillo?
A He was taken aback. He was not able to cover up himself and he was hit by the stab made by
Robert Castillo, sir.
Q On what part of the body was he hit?
A On the left side of the chest, sir.
Q And did you see in what summer [sic] accused Robert Castillo stabbed Antonio Dimatita [sic]?
A Like this, sir. (Witness demonstrating with his right arm above his shoulder with downward
stabbing position.)
Q As you stated, after Tony was hit on the left side of [his] chest, what happened next?
A He was stabbed again and was hit on the arm, sir.
Q What arm? Left or right?
A On the left arm, air. (Witness is pointing to his left arm in between the 1st and second finger.)
Q After he was hit on the left arm, what happened next?
A He went near me and asked for help, sir. I placed a bench on the middle to block the way so that
Robert Castillo [would] not be able to reach him and I told Tony to run away, sir.
Q Did Tony run away thereafter?
A Yes, sir.
Q How about accused Robert Castillo, what was he doing the[n]?
A He chased, sir.
Q What happened next?

A I heard Tony was already dead, sir.
The testimony of Velasco that the accused stabbed the victim on the left side of the chest and then
on the left arm was confirmed by the medical findings,[17] particularly the autopsy report of Dr.
Munoz, who testified as follows:[18]
COURT
Q Can you tell the Court the relative position of the victim and the assailant when the stab wound
was inflicted?
TRIAL PROS. RALPH S. LEE
Based on the wound, doctor.
WITNESS
A If the victim and the assailant were in a standing position, the assailant and the victim would be
facing each other and the fatal wound was delivered from upward to downward, your honor.
Witness Velasco further testified that the accused used a bladed weapon which looked like a fan
knife.[19] This was also supported by Dr. Munoz, viz.:[20]
Q Dr. Munoz, in your learned medical knowledge, what could have caused this stab wound
marked as Exhibit D?
A This was inflicted by a sharp pointed single bladed instrument like kitchen knife or balisong or
any similar instrument.
Melinda Mercado, the other prosecution witness, corroborated the story of Velasco. She testified
that when she was inside the pub, she heard Velasco shout that Antonio Dometita was stabbed.[21]
She went out to verify and saw the accused walking away. What she saw was not the stabbing
incident itself, but the accused wrapping a bladed weapon in his shirt.[22] This confirms the
assertion of Velasco that the accused was still holding the bladed instrument as he chased the
victim.[23]
Clearly, the straightforward, detailed and consistent narrations of the government witnesses show
that the trial court did not err in giving credence to the account of the prosecution.
Appellant contends that the trial court failed to appreciate the testimony of Defense Witness
Edilberto Marcelino who narrated a stabbing/mauling incident on a side street that fateful night
near the Iglesia ni Cristo Church, where the victims body was found. Said witness testified that he
was driving his tricycle, when he noticed a group ganging up on a man (pinagtutulungan).[24] He
then saw the person fall.[25] He did not notice if the assailants had weapons, as he was a bit far
from them, illumination coming only from the headlight of his tricycle. He stated that the
appellant, with whom he was familiar because he often saw him selling cigarettes along EDSA,
[26] was not one of those he saw ganging up on the person who fell to the ground. He described
one of the malefactors as long-haired and lanky, and the other one as fair-complexioned with a
medium build,[27] descriptions which did not fit the accused. Upon witnessing the incident,
Marcelino immediately proceeded to the barangay hall to report the matter.
The trial court did not accord weight to said testimony. We sustain this holding. Marcelino
admitted that he was about twenty-five meters away from the place of incident[28] and that said
place was not lighted. Furthermore, his tricycle was then moving because he was in a hurry.[29]
Thus, we agree with this statement of the trial court: [C]onsidering that it was dark and the
distance from where the witness saw the incident [was] quite far, it could not have been possible
for him to recognize the victim and his attackers.[30]
Appellant also asserts that the trial court failed to appreciate the implications of the medical
finding that the heart and lungs of the victim were impaled. He argues that these wounds made it
impossible for the victim to traverse the distance from the pub house to the Iglesia ni Cristo
Church area, where his body was eventually found. However, the testimony of the medico-legal
expert did not rule out this possibility, as gleaned from the following:
Q And if the stab wound was fatal, how long could have he [sic] lived after the infliction of the
wound?
A It would be very very difficult to give the duration of survival because different individual[s]
would have different types of survival. Others would [live] for five minutes and others would
survive for at least... in shorter time.
Q But five minutes doctor would be a long time already. It could be the survival time of a person
who has a strong constitution. Do you agree with me?
A No, sir. In this particular case considering that the involvement here of the heart is the left
ventricle which is a very thick portion of the heart, I dont think he would die in less than five
minutes because the thick portion of the heart serves as a sealer once the instrument is pulled out,
the tendency of the thick muscle is to close the injury so there is a much longer time for survival.
[31] (Underscoring supplied.)
Second Issue: Partiality of the Trial Judge
Appellant declares that the trial judge was biased against him, for propounding questions that were
well within the prerogative of the prosecution to explore and ask. More pointedly, appellant
alleges that the trial judge took over from the prosecution and asked questions in a leading
manner,[32] interrupted the cross-examination to help the witness give answers favorable to the
prosecution,[33] and asked questions which pertained to matters of opinion and allusions of bad
moral character, which could not be objected to by defense counsel, because they have been
ventiliated by the judge himself.[34] To substantiate the alleged bias and prejudice of the judge,
appellant in his brief cited several pages from the transcript of stenographic notes.[35]
The allegation of bias and prejudice is not well-taken. It is a judges prerogative and duty to ask
clarificatory questions to ferret out the truth.[36] On the whole, the Court finds that the questions
propounded by the judge were merely clarificatory in nature. Questions which merely clear up
dubious points and bring out additional relevant evidence are within judicial prerogative.
Moreover, jurisprudence teaches that allegations of bias on the part of the trial court should be
received with caution, especially when the queries by the judge did not prejudice the accused. The
propriety of a judges queries is determined not necessarily by their quantity but by their quality
and, in any event, by the test of whether the defendant was prejudiced by such questioning. In this
case, appellant failed to demonstrate that he was prejudiced by the questions propounded by the
trial judge. In fact, even if all such questions and the answers thereto were eliminated, appellant
would still be convicted.
As correctly observed by the solicitor general, there was no showing that the judge had an interest,
personal or otherwise, in the prosecution of the case at bar. He is therefore presumed to have acted
regularly and in the manner [that] preserve[s] the ideal of the cold neutrality of an impartial judge
implicit in the guarantee of due process (Mateo, Jr. vs. Villaluz, 50 SCRA 18).[37] That the trial
judge believed the evidence of the prosecution more than that of the defense, does not indicate that
he was biased. He simply accorded greater credibility to the testimony of the prosecution
witnesses than to that of the accused.[38]
Alibi
Appellants defense of alibi and denial is unavailing. For the defense of alibi to prosper, the
accused must prove not only that he was at some other place at the time the crime was committed,
but that it was likewise physically impossible for him to be at the locus criminis at the time of the
alleged crime.[39] This the appellant miserably failed to do. Appellant contends that he was then
asleep in his house at the time of the incident. This was supported by his mother who stated that he
was asleep from 9:00 p.m. to 6:00 a.m. the next day[40] and by Rosemarie Malikdem who said
that she visited the accused on the night of May 24, 1993 to counsel him, which was her task in
the Samahamg Magkakapitbahay.[41] Appellant failed to demonstrate, however, the distance
between the crime scene and his house. Indeed, he testified that his house was near the crime
scene. In any event, this defense cannot overturn the clear and positive testimony of the credible
eyewitnesses who located appellant at the locus criminis and identified him as the assailant.[42]
Aggravating Circumstances
The Court agrees with the trial court that appellant is guilty of murder for the death of Antonio
Dometita. We likewise agree that the prosecution was unable to prove the aggravating
circumstance of evident premeditation. For this circumstance to be appreciated, there must be
proof, as clear as the evidence of the crime itself, of the following elements: 1) the time when the
offender determined to commit the crime, 2) an act manifestly indicating that he clung to his
determination, and 3) a sufficient lapse of time between determination and execution to allow
himself time to reflect upon the consequences of his act.[43] These requisites were never
established by the prosecution.
On the other hand, we disagree with the trial court that the killing was qualified by abuse of
superior strength. To properly appreciate the aggravating circumstance of abuse of superior
strength, the prosecution must prove that the assailant purposely used excessive force out of
proportion to the means of defense available to the person attacked.[44] The prosecution did not
demonstrate that there was a marked difference in the stature and build of the victim and the
appellant which would have precluded an appropriate defense from the victim. Not even the use of
a bladed instrument would constitute abuse of superior strength if the victim was adequately
prepared to face an attack, or if he was obviously physically superior to the assailant.
Nonetheless, we hold that the killing was qualified by treachery. Treachery is committed when two
conditions concur, namely, that the means, methods, and forms of execution employed gave the
person attacked no opportunity to defend himself or to retaliate[;] and that such means, methods,
and forms of execution were deliberately and consciously adopted by the accused without danger
to his person.[45] These requisites were evidently present in this case when the accused appeared
from nowhere and swiftly and unexpectedly stabbed the victim just as he was bidding goodbye to
his friend, Witness Velasco. Said action rendered it difficult for the victim to defend himself. The
presence of defense wounds does not negate treachery because, as testified to by Velasco, the first
stab, fatal as it was, was inflicted on the chest. The incised wounds in the arms were inflicted
when the victim was already rendered defenseless.
Damages
The trial court awarded indemnity and actual and moral damages to the heirs of the victim. We
sustain the award of indemnity in the amount of P50,000, but we cannot do the same for the actual
and moral damages which must be supported by proof. In this case, the trial court did not state any
evidentiary basis for this award. We have examined the records, but we failed to find any, either.
WHEREFORE, the appeal is hereby DENIED and the assailed Decision is AFFIRMED,[46] but
the award of actual and moral damages is DELETED for lack of factual basis. Costs against
appellant.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.
[1] Rollo, pp. 13-17.

[2] Penned by Judge Tirso D.C. Velasco.
[3] Rollo, p. 5.
[4] Records, p. 18.
[5] Rollo, p. 17.
[6] The case was deemed submitted for decision on February 6, 1997 upon receipt by this Court of
Appellees Brief. The filing of a reply brief was deemed waived.
[7] This Brief was signed by Assistant Solicitor General Carlos N. Ortega and Solicitor Geraldine
C. Fiel-Macaraig.
[8] Appellees Brief, pp. 3-5; Rollo, pp. 83-85.
[9] Appellants Brief, p. 1. This was signed by Attys. Salacnib Baterina and Ismael Baterina.
[10] Decision, p. 3; Rollo, p. 15.
[11] Appellants Brief, pp. (50) i-ii.
[12] People vs. Sumbillo, G.R. No. 105292, April 18, 1997; People vs. Quinao, G.R. No. 108454,
March 13, 1997; People vs. Nuestro, 240 SCRA 221, January 18, 1995.
[13] People vs. Ombrog, G.R. No. 104666, February 12, 1997; People vs. Sumbillo, supra; People
vs. Ortega, G.R. No. 116736, July 24, 1997; People vs. de Guzman, 188 SCRA 405, August 7,
1990.
[14] People vs. Morin, 241 SCRA 709, February 24, 1995; People vs. Cogonon, 262 SCRA 693,
October 4, 1996.
[15] TSN, September 1, 1993, p. 12.
[16] Ibid., p. 51.
[17] TSN, September 1, 1993, p. 11.
[18] TSN, August 12, 1993, p. 10
[19] TSN, September 1, 1993, p.13.
[20] TSN, August 12, 1993, p. 8.
[21] TSN, October 11, 1993, p. 8.
[22] Ibid., pp. 9 - 10.
[23] TSN, September 1, 1993, p. 14.
[24] TSN, January 5, 1995, p. 8.
[25] Ibid., p. 16.
[26] Id., p. 17.
[27] Id., p. 18.
[28] TSN, January 5, 1995, p. 27.
[29] Ibid., p. 30.
[30] Decision, p. 4; Rollo, p. 16.
[31] TSN, August 12, 1993, p. 12.
[32] Appellants Brief, p. 7.
[33] Ibid., p. 8.
[34] Id., p. 11.
[35] Appellants Brief, pp. 6-13.
[36] People vs. Tabarno, 242 SCRA 456, March 20, 1995; Ventura vs. Yatco, 105 Phil 287, March
16, 1959; People vs. Catindihan, 97 SCRA 196, April 28, 1980.
[37] Appellees Brief, p. 13; Rollo, p. 93.
[38] People vs. Tabarno, supra.
[39] People vs. Umali, 242 SCRA 17, March 1, 1995; People vs. Hortillano, 177 SCRA 729,
September 19, 1989; People vs. Cabresos, 244 SCRA 362, May, 26, 1995.
[40] TSN, February 23, 1994, p. 4.
[41] TSN, July 12, 1994, pp. 6-7.
[42] People vs. Sumbillo, supra; People vs. Baydo, GR No. 113799, June 17, 1997.
[43] People vs. Baydo, supra; People vs. Halili, 245 SCRA 340, June 27, 1995.
[44] People vs. Ruelan, 231 SCRA 650, April 19, 1994; People vs. Casingal, 243 SCRA 37, March
29, 1995.
[45] People vs. Maalat, GR No. 109814, July 8, 1997, per Romero, J.; People vs. Tuson, GR No.
106345-46, September 16, 1996.
[46] As discussed, however, the killing is qualified by treachery, not by abuse of superior strength.
EN BANC
[G.R. No. 140756. April 4, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN GONZALES ESCOTE, JR. @ Jun
Mantika of Sta. Lucia, Angat, Bulacan and VICTOR ACUYAN y OCHOVILLOS @ Vic Arroyo
of Sto. Nio, Poblacion, Bustos, Bulacan, accused-appellants.
DECISION
CALLEJO, SR., J.:
Robbery with homicide is classified as a crime against property. Nevertheless, treachery is a

generic aggravating circumstance in said crime if the victim of homicide is killed treacherously.
The Supreme Court of Spain so ruled. So does the Court rule in this case, as it had done for
decades.
Before the Court on automatic review is the Decision[1] of Branch 11 of the Regional Trial Court
of Bulacan in Criminal Case No. 443-M-97 convicting accused-appellants Juan Gonzales Escote,
Jr. and Victor Acuyan of the complex crime of robbery with homicide, meting on each of them the
supreme penalty of death, and ordering them to pay the heirs of the victim, SPO1 Jose C. Manio,
Jr., the total amount of P300,000.00 by way of actual and moral damages and to pay to Five Star
Bus, Inc., the amount of P6,000.00 by way of actual damages.
The Facts
The antecedent facts as established by the prosecution are as follows:

On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of Five Star
Passenger Bus bearing Plate No. ABS-793, drove the bus from its terminal at Pasay City to its
destination in Bolinao, Pangasinan. Also on board was Romulo Digap, the regular conductor of
the bus, as well as some passengers. At Camachile, Balintawak, six passengers boarded the bus,
including Victor Acuyan and Juan Gonzales Escote, Jr. who were wearing maong pants, rubber
shoes, hats and jackets.[2] Juan seated himself on the third seat near the aisle, in the middle row of
the passengers seats, while Victor stood by the door in the mid-portion of the bus beside Romulo.
Another passenger, SPO1 Jose C. Manio, Jr., a resident of Angeles City, was seated at the rear
portion of the bus on his way home to Angeles City. Tucked on his waist was his service gun
bearing Serial Number 769806. Every now and then, Rodolfo looked at the side view mirror as
well as the rear view and center mirrors installed atop the drivers seat to monitor any incoming
and overtaking vehicles and to observe the passengers of the bus.
The lights of the bus were on even as some of the passengers slept. When the bus was travelling
along the highway in Plaridel, Bulacan, Juan and Victor suddenly stood up, whipped out their
handguns and announced a holdup. Petrified, Rodolfo glanced at the center mirror towards the
passengers seat and saw Juan and Victor armed with handguns. Juan fired his gun upward to
awaken and scare off the passengers. Victor followed suit and fired his gun upward. Juan and
Victor then accosted the passengers and divested them of their money and valuables. Juan divested
Romulo of the fares he had collected from the passengers. The felons then went to the place
Manio, Jr. was seated and demanded that he show them his identification card and wallet. Manio,
Jr. brought out his identification card bearing No. 00898.[3] Juan and Victor took the identification
card of the police officer as well as his service gun and told him: Pasensya ka na Pare, papatayin
ka namin, baril mo rin and papatay sa iyo. The police officer pleaded for mercy: Pare maawa ka sa
akin. May pamilya ako. However, Victor and Juan ignored the plea of the police officer and shot
him on the mouth, right ear, chest and right side of his body. Manio, Jr. sustained six entrance
wounds. He fell to the floor of the bus. Victor and Juan then moved towards the driver Rodolfo,
seated themselves beside him and ordered the latter to maintain the speed of the bus. Rodolfo
heard one of the felons saying: Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok.
The other said: Ayos na naman tayo pare. Malaki-laki ito. Victor and Juan further told Rodolfo that
after they (Victor and Juan) shall have alighted from the bus, he (Rodolfo) should continue driving
the bus and not report the incident along the way. The robbers assured Rodolfo that if the latter
will follow their instructions, he will not be harmed. Victor and Juan ordered Rodolfo to stop the
bus along the overpass in Mexico, Pampanga where they alighted from the bus. The robbery was
over in 25 minutes.
When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo forthwith reported the
incident to the police authorities. The cadaver of SPO1 Manio, Jr. was brought to the funeral
parlor where Dr. Alejandro D. Tolentino, the Municipal Health Officer of Mabalacat, Pampanga,
performed an autopsy on the cadaver of the police officer. The doctor prepared and signed an
autopsy report detailing the wounds sustained by the police officer and the cause of his death:
Body still flaccid (not in rigor mortis) bathed with his own blood. There were 6 entrance wounds
and 6 exit wounds. All the entrance were located on his right side. An entrance (0.5 cm x 0.5 cm.)
located infront of the right ear exited at the left side just below the ear lobe. Another entrance
through the mouth exited at the back of the head fracturing the occiput with an opening of (1.5 cm
x 2 cm). Blood CSF and brain tissues came out. Another fatal bullet entered at the upper right
cornea of the sternum, entered the chest cavity pierced the heart and left lung and exited at the left
axillary line. Severe hemorrhage in the chest cavity came from the heart and left lung. The other 3
bullets entered the right side and exited on the same side. One entrance at the top of the right
shoulder exited at the medial side of the right arm. The other entered above the right breast and
exited at the right lateral abdominal wall travelling below muscles and subcutaneous tissues
without entering the cavities. Lastly another bullet entered above the right iliac crest travelled
superficially and exited above the right inguinal line.
Cause of Death:
Shock, massive internal and external hemorrhage, complete brain destruction and injury to the
heart and left lung caused by multiple gunshot wounds.[4]
Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they reported the
robbery and gave their respective sworn statements.[5] SPO1 Manio, Jr. was survived by his wife
Rosario Manio and their four young children. Rosario spent P20,000.00 for the coffin and
P10,000.00 for the burial lot of the slain police officer.[6] Manio, Jr. was 38 years old when he
died and had a gross salary of P8,085.00 a month.[7]
Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3 Romeo Meneses, the
team leader of Alert Team No. 1 of Tarlac Police Station, and PO3 Florante S. Ferrer were at the
police checkpoint along the national highway in Tarlac, Tarlac. At the time, the Bambang-
Concepcion bridge was closed to traffic and the police officers were tasked to divert traffic to the
Sta. Rosa road. Momentarily, a white colored taxi cab without any plate number on its front fender
came to view. Meneses stopped the cab and asked the driver, who turned out to be the accused
Juan Gonzales Escote, Jr., for his identification card. Juan told Meneses that he was a policeman
and handed over to Meneses the identification card of SPO1 Manio, Jr. and the money which Juan
and Victor took from Manio, Jr. during the heist on September 28, 1996.[8] Meneses became
suspicious when he noted that the identification card had already expired on March 16, 1995. He
asked Juan if the latter had a new pay slip. Juan could not produce any. He finally confessed to
Meneses that he was not a policeman. Meneses brought Juan to the police station. When police
officers frisked Juan for any deadly weapon, they found five live bullets of a 9 millimeter firearm
in his pocket. The police officers confiscated the ammunition. In the course of the investigation,
Juan admitted to the police investigators that he and Victor, alias Victor Arroyo, staged the robbery
on board Five Star Bus and are responsible for the death of SPO1 Manio, Jr. in Plaridel, Bulacan.
Meneses and Ferrer executed their joint affiavit of arrest of Juan.[9] Juan was subsequently turned
over to the Plaridel Police Station where Romulo identified him through the latters picture as one
of those who robbed the passengers of the Five Star Bus with Plate No. ABS-793 and killed SPO1
Manio, Jr. on September 28, 1996. In the course of their investigation, the Plaridel Police Station
Investigators learned that Victor was a native of Laoang, Northern Samar.[10] On April 4, 1997,
an Information charging Juan Gonzales Escote, Jr. and Victor Acuyan with robbery with homicide
was filed with the Regional Trial Court of Bulacan. The Information reads:
That on or about the 28th day of September 1996, in the municipality of Plaridel, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating together and mutually helping each other, armed with firearms,
did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and by means of
force, violence and intimidation, take, rob and carry away with one (1) necklace and cash in [the]
undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the damage and prejudice of the said
owner in the said undetermine[d] amount; that simultaneously or on the occassion (sic) of said
robbery, said accused by means of violence and intimidation and in furtherance of their conspiracy
attack, assault and shoot with the service firearm of the said SPO1 Jose C. Manio, Jr., thereby
inflicting serious physical injuries which resulted (sic) the death of the said SPO1 Jose C. Manio,
Jr.
Contrary to law.[11]
On the strength of a warrant of arrest, the police officers arrested Victor in Laoang, Northern
Samar and had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty. Ramiro Osorio,
their counsel de parte, Juan and Victor were duly arraigned and entered their plea of not guilty to
the charge. Trial thereafter ensued. After the prosecution had rested its case on August 26, 1998,
Juan escaped from the provincial jail.[12] The trial court issued a bench warrant on September 22,
1998 for the arrest of said accused-appellant.[13] In the meantime, Victor adduced his evidence.
Victor denied the charge and interposed the defense of alibi. He testified that in 1996, he worked
as a tire man in the vulcanizing shop located in Banga I, Plaridel, Bulacan owned by Tony Boy
Negro. On one occasion, Ilarde Victorino, a customer of Tony Boy Negro, ordered Victor to sell a
tire. Victor sold the tire but did not turn over the proceeds of the sale to Ilarde. The latter hated
Victor for his misdeed. The shop was later demolished and after two months of employment,
Victor returned to Barangay Muwal-Buwal, Laoang, Northern Samar. On September 26, 1996, at
9:30 p.m., Victor was at the town fiesta in Laoang. Victor and his friends, Joseph Iringco and
Rickey Lorcio were having a drinking spree in the house of Barangay Captain Ike Baluya. At
11:30 p.m., the three left the house of the barangay captain and attended the public dance at the
town auditorium. Victor and his friends left the auditorium at 5:30 a.m. of September 27, 1996.
Victor likewise testified that he never met Juan until his arrest and detention at the Bulacan
Provincial Jail. One of the inmates in said provincial jail was Ilarde Victorino. Victor learned that
Ilarde implicated him for the robbery of the Five Star Bus and the killing of SPO1 Manio, Jr. to hit
back at him for his failure to turn over to Ilarde the proceeds of the sale of the latters tire.
On January 14, 1999, Juan was rearrested in Daet, Camarines Norte.[14] However, he no longer
adduced any evidence in his behalf.
The Verdict of the Trial Court
On March 11, 1999, the trial court rendered its Decision judgment finding Juan and Victor guilty
beyond reasonable doubt of the crime charged, meted on each of them the penalty of death and
ordered them to pay P300,000.00 as actual and moral damages to the heirs of the victim and to pay
the Five Star Bus Company the amount of P6,000.00 as actual damages. The decretal portion of
the decision reads:
WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor Acuyan
GUILTY beyond reasonable doubt of Robbery with Homicide as penalized under Art. 294 of the
Revised Penal Code as amended and hereby sentences both to suffer the supreme penalty of Death
and to indemnify the heirs of the late SPO1 Jose C. Manio, Jr., the amount of P300,000.00 as
actual and moral damages and to pay the Five Star Bus P6,000.00 as actual damage.
SO ORDERED.[15]
Assignment of Errors
Juan and Victor assail the Decision of the trial court and contend that:
I
THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO
DIGAP, DRIVER AND CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE
ABLE TO POSITIVELY IDENTIFY THE TWO (2) MEN WHO HELD-UP THEIR BUS AND
KILLED ONE PASSENGER THEREOF AT AROUND 3:00 OCLOCK IN THE EARLY
MORNING OF SEPTEMBER 28, 1996.
II
THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE.[16]
The Courts Verdict
Anent the first assignment of error, Juan and Victor contend that the trial court committed a
reversible error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of
the crime charged. They aver that although their counsel was able to initially cross-examine
Rodolfo, the former failed to continue with and terminate his cross-examination of the said
witness through no fault of his as the witness failed to appear in subsequent proceedings. They
assert that even if the testimonies of Rodolfo and Romulo were to be considered, the two
witnesses were so petrified during the robbery that they were not able to look at the felons and
hence could not positively identify accused-appellants as the perpetrators of the crime. They argue
that the police investigators never conducted a police line-up for the identification of the authors
of the crime.
The contentions of Juan and Victor are not meritorious. There is no factual and legal basis for their
claim that they were illegally deprived of their constitutional and statutory right to fully cross-
examine Rodolfo. The Court agrees that the right to cross-examine is a constitutional right
anchored on due process.[17] It is a statutory right found in Section 1(f), Rule 115 of the Revised
Rules of Criminal Procedure which provides that the accused has the right to confront and cross-
examine the witnesses against him at the trial. However, the right has always been understood as
requiring not necessarily an actual cross-examination but merely an opportunity to exercise the
right to cross-examine if desired.[18] What is proscribed by statutory norm and jurisprudential
precept is the absence of the opportunity to cross-examine.[19] The right is a personal one and
may be waived expressly or impliedly. There is an implied waiver when the party was given the
opportunity to confront and cross-examine an opposing witness but failed to take advantage of it
for reasons attributable to himself alone.[20] If by his actuations, the accused lost his opportunity
to cross-examine wholly or in part the witnesses against him, his right to cross-examine is
impliedly waived.[21] The testimony given on direct examination of the witness will be received
or allowed to remain in the record.[22]
In this case, the original records show that after several resettings, the initial trial for the
presentation by the prosecution of its evidence-in-chief was set on November 18, 1997 and
December 5, 1997, both at 9:00 a.m.[23] Rodolfo testified on direct examination on November 18,
1997. The counsel of Juan and Victor forthwith commenced his cross-examination of the witness
but because of the manifestation of said counsel that he cannot finish his cross-examination, the
court ordered the continuation thereof to December 5, 1997.[24] On December 5, 1997, Rodolfo
did not appear before the court for the continuation of his cross-examination but Rosemarie
Manio, the widow of the victim did. The prosecution presented her as witness. Her testimony was
terminated. The court ordered the continuation of the trial for the cross-examination of Rodolfo on
January 20, 1998 at 8:30 a.m.[25] During the trial on January 20, 1998, Rodolfo was present but
accused-appellants counsel was absent. The court issued an order declaring that for failure of said
counsel to appear before the court for his cross-examination of Rodolfo, Victor and Juan waived
their right to continue with the cross-examination of said witness.[26] During the trial set for
February 3, 1998, the counsel of Juan and Victor appeared but did not move for a reconsideration
of the courts order dated January 20, 1998 and for the recall of Rodolfo Cacatian for further cross-
examination. It behooved counsel for Juan and Victor to file said motion and pray that the trial
court order the recall of Rodolfo on the witness stand. Juan and Victor cannot just fold their arms
and supinely wait for the prosecution or for the trial court to initiate the recall of said witness.
Indeed, the Court held in Fulgado vs. Court of Appeals, et al:
xxx
The task of recalling a witness for cross examination is, in law, imposed on the party who wishes
to exercise said right. This is so because the right, being personal and waivable, the intention to
utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation
thereof. Thus, it should be the counsel for the opposing party who should move to cross-examine
plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-
examination of his own witnesses because it is not his obligation to ensure that his deponents are
cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now
make the appropriate move. Indeed, the rule of placing the burden of the case on plaintiffs
shoulders can be construed to extremes as what happened in the instant proceedings. [27]
The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of the non-
availability of the other witnesses of the prosecution.[28] On March 31, 1998, the prosecution
presented Dr. Alejandro Tolentino, PO2 Rene de la Cruz and Romulo Digap. During the trial on
April 17, 1998, the counsel of Juan and Victor failed to appear. The trial was reset to June 3, 19
and 26, 1998.[29] The trial scheduled on June 3, 1998 was cancelled due to the absence of the
counsel of Juan and Victor. The court issued an order appointing Atty. Roberto Ramirez as counsel
for accused-appellants.[30]
During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and Victor. The
prosecution rested its case after the presentation of SPO2 Romeo Meneses and formally offered its
documentary evidence. The next trial was set on September 23, 1998 at 8:30 a.m.[31] On
November 11, 1998, Juan and Victor commenced the presentation of their evidence with the
testimony of Victor.[32] They rested their case on January 27, 1999 without any evidence adduced
by Juan.
Juan and Victor did not even file any motion to reopen the case before the trial court rendered its
decision to allow them to cross-examine Rodolfo. They remained mute after judgment was
rendered against them by the trial court. Neither did they file any petition for certiorari with the
Court of Appeals for the nullification of the Order of the trial court dated January 20, 1998
declaring that they had waived their right to cross-examine Rodolfo. It was only on appeal to this
Court that Juan and Victor averred for the first time that they were deprived of their right to cross-
examine Rodolfo. It is now too late in the day for Juan and Victor to do so. The doctrine of
estoppel states that if one maintains silence when in conscience he ought to speak, equity will
debar him from speaking when in conscience he ought to remain silent. He who remains silent
when he ought to speak cannot be heard to speak when he should be silent.[33]
The contention of accused-appellants Juan and Victor that Rodolfo and Romulo failed to identify
them as the perpetrators of the crime charged is disbelieved by the trial court, thus:
As can be gathered from the testimonies of the witnesses for the prosecution, on September 28,
1996, the accused boarded at around 3:00 a.m. a Five Star Bus driven by Rodolfo Cacatian, bound
to Pangasinan, in Camachile, Balintawak, Quezon City. Twenty (20) minutes or so later, when the
bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North Espressway, the accused
with guns in hand suddenly stood up and announced a hold-up. Simultaneously with the
announcement of a hold-up, Escote fired his gun upwards. Acuyan, meanwhile, took the gun of a
man seated at the back. Both then went on to take the money and valuables of the passengers,
including the bus conductors collections in the amount of P6,000.00. Thereafter, the duo
approached the man at the back telling him in the vernacular Pasensiya ka na pare, papatayin ka
namin. Baril mo rin ang papatay sa iyo. They pointed their guns at him and fired several shots
oblivious of the plea for mercy of their victim. After the shooting, the latter collapsed on the floor.
The two (2) then went back at the front portion of the bus behind the drivers seat and were
overheard by the bus driver, Cacatian, talking how easy it was to kill a man. The robbery and the
killing were over in 25 minutes. Upon reaching the Mexico overpass of the Expressway in
Pampanga, the two (2) got off the bus. The driver drove the bus to the Mabalacat Police Station
and reported the incident. During the investigation conducted by the police, it was found out that
the slain passenger was a policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City Police
Department.
The above version came from Rodolfo Cacatian and Romulo Digap, bus driver and conductor,
respectively, of the ill-fated Five Star Bus.[34]
The Court agrees with the trial court. It may be true that Romulo was frightened when Juan and
Victor suddenly announced a holdup and fired their guns upward, but it does not follow that he
and Rodolfo failed to have a good look at Juan and Victor during the entire time the robbery was
taking place. The Court has held in a catena of cases that it is the most natural reaction of victims
of violence to strive to see the appearance of the perpetrators of the crime and to observe the
manner in which the crime was committed.[35] Rodolfo and Romulo had a good look at both Juan
and Victor before, during and after they staged the robbery and before they alighted from the bus.
The evidence on record shows that when Juan and Victor boarded the bus and while the said
vehicle was on its way to its destination, Romulo stationed himself by the door of the bus located
in the mid-section of the vehicle. The lights inside the bus were on. Juan seated himself in the
middle row of the passengers seat near the center aisle while Victor stood near the door of the bus
about a meter or so from Romulo.[36] Romulo, Juan and Victor were near each other. Moreover,
Juan divested Romulo of his collection of the fares from the passengers.[37] Romulo thus had a
face-to-face encounter with Juan. After shooting SPO1 Manio, Jr. at the rear portion of the bus,
Juan and Victor passed by where Romulo was standing and gave their instructions to him.
Considering all the facts and circumstances, there is no iota of doubt that Romulo saw and
recognized Juan and Victor before, during and after the heist.[38] Rodolfo looked many times on
the rear, side and center view mirrors to observe the center and rear portions of the bus before and
during the robbery. Rodolfo thus saw Juan and Victor stage the robbery and kill SPO1 Manio, Jr.
with impunity:
xxx
Q So, the announcement of hold-up was ahead of the firing of the gun?
A Yes, sir.
Q And before the actual firing of the gun it was even still said bad words before saying the hold-
up?
A After they fired the gun they uttered bad words, sir.
Q Mr. Witness before the announcement of the hold-up you do not have any idea that you will
encounter that nature which took place, is that correct?
A None, sir.
Q Within the two (2) year[s] period that you are plying the route of Manila to Bolinao that was
your first experience of hold-up?
A Yes, sir.
Q And the speed of above 70 kilometers per hour your total attention is focus in front of the road,
correct, Mr. witness?
A Once in a while the driver look at the side mirror and the rear view mirror, sir.
Q Before the announcement there was no reason for you to look at any at the rear mirror, correct,
Mr. witness?
Court:
Every now and then they usually look at the side mirror and on the rear, that was his statement.
Atty. Osorio:
(to the witness)
Q I am asking him if there was no reason for him....
Fiscal:
Before the announcement of hold-up, there was no mention.
Court:
Every now and then.
Atty. Osorio:
(to the witness)
Q When you said every now and then, how often is it, Mr. witness?
A I cannot tell how often but I used to look at the mirror once in a while, sir.
Q How many mirror do you have, Mr. witness?
A Four (4), sir.
Q Where are these located?
A Two (2) on the side mirror, center mirror and rear view mirror, sir.
Q The two side mirror protruding outside the bus?
A Yes, sir, they are in the side of the bus, sir.
Q One of them is located on the left and the other on the right, correct?
A Yes, sir.
Q You only look at the side mirror when you are going to over take, Mr. witness?
A No, sir.
Q Where is this center mirror located, Mr. witness?
A In the center, sir.
Q What is the purpose of that?
A So that I can see the passengers if they are already settled so that I can start the engine, sir.
Q What about the remaining mirror?
A Rear view mirror, sir.
Q What is the purpose and where is it located?
A The rear view is located just above my head just to check the passengers, sir.
Q So that the center mirror and the rear view mirror has the same purpose?
A They are different, sir.
Q How do you differentiate of (sic) one from the other?
A The center mirror is used to check the center aisle while the rear mirror is for the whole view of
the passengers, sir.
Q If you are going to look at any of your side mirrors, you will never see any passengers, correct,
Mr. witness?
A None, sir.
Q If you will look at your center mirror you will only see the aisle and you will never see any
portion of the body of your passengers?
A Yes, sir.
Q Seated passengers?
A It is only focus (sic) on the middle aisle sir.
Q If you look at your rear mirror, you will only see the top portion of the head of your passengers,
correct?
A Only the portion of their head because they have different hight (sic), sir.
Q You will never see any head of your passengers if they were seated from the rear mirror portion,
correct, Mr. witness?
A Yes, sir.
Q Before the announcement of hold-up, all of your passengers were actually sleeping?
A Some of my passengers were sleeping, some were not, sir.
Q But you will agree Mr. witness that when you said every now and then you are using your
mirror? It is only a glance, correct?
A Yes, sir.
Q And by mere glancing, Mr. witness you were not able to identify any person on the basis of any
of your mirror, correct?
A If only a glance but when I look at him I can recognize him, sir.
Q You agree a while ago by every now and then it is by glancing, as a driver, Mr. witness by your
side mirror?
A Not all glancing, there are times when you want to recognize a person you look at him intently,
sir.
Q The purposes of your mirror inside your Bus is mainly of the safety of your passengers on
board, Mr. witness?
A Yes, sir.
Q And as a driver, Mr. witness, you do not used (sic) your mirror to identify the person
particularly when you are crossing (sic) at a speed of 70 kilometers per hour?
A I do that, sir.
Q How long Mr. witness can you focus your eyes on any of these mirror before getting back your
eyes into the main road?
A Seconds only, sir.
Q When you said seconds, for how long the most Mr. witness that you can do to fix your eyes on
any of your mirrors and the return back of (sic) your eyes into the main road?
A Two seconds, sir.
Q At that time Mr. witness, that you were travelling at about 70 kilometers you were glancing
every now and then on any of your mirrors at about two seconds, correct?
A Yes, sir.
Q And when you heard the announcement of hold-up your natural reaction is to look either at the
center mirror or rear mirror for two seconds, correct?
A Yes, sir.
Q And you were instructed Mr. witness to even accelerate your speed upon the announcement of
hold-up?
A No sir, they just told me to continue my driving, sir.
Fiscal:
May I request the vernacular alalay ka lang, steady ka lang.
Atty. Osorio:
(to the witness)
Q Steady at what speed?
A 70 to 80, sir.
Q What is the minimum speed, Mr. witness for Buses along North Expressway?
A 60 kilometers, sir.
Q Are you sure of that 60 kilometers, minimum? Are you sure of that?
A Yes, sir.
Q That is what you know within the two (2) years that you are driving? Along the North
Expressway?
A Yes, sir.
Q And while you were at the precise moment, Mr. witness, you were being instructed to continue
driving, you were not looking to anybody except focus yours eyes in front of the road?
Fiscal:
May I request the vernacular. Nakikiramdam ako.
Atty. Osorio:
(to the witness)
Q Thats what you are doing?
A During the time they were gathering the money from my passengers, that is the time when I
look at them, sir.
Q For two seconds, correct?
A Yes, sir.
Q Which of the four (4) mirrors that you are looking at within two seconds, Mr. witness you said
you are nakikiramdam?
A The rear view mirror, sir.
Q The Bus that you were driving is not an air con bus?
A Ordinary bus, sir.
Q And at what time your passengers, most of your passengers were already sleep (sic), Mr.
witness?
A Most of my passengers, sir. Some of my passengers were still sleep (sic), sir.
Q And the lights inside the Bus are off, correct Mr. witness?
A The lights were on, sir.
Q While the passengers were sleep (sic) the light was still on, Mr. witness, at the time of the trip.?
A Yes, sir.
Q Now, Mr. witness when the hold-up was announced and then when you look for two seconds in
the rear mirror you were not able to see any one, you were only sensing what is happening inside
your bus?
A I saw something, sir.
Q You saw something in front of your Bus? You can only see inside when you are going to look at
the mirror?
A Yes, sir.
Q That is the only thing that you see every now and then, you said you were looking at the mirror?
A Yes, sir.
Q How many times, Mr. witness did you look Mr. witness at the rear mirror during the entire
occurance (sic) of the alleged hold-up?
A There were many times, sir.
Q The most that you can remember, please inform the Honorable Court? During the occurance
(sic) of the alleged hold-up, Mr. witness?
A I cannot estimate, sir.
Q How long did the alleged hold-up took place?
A More or less 25 minutes, sir.[39]
When Rodolfo gave his sworn statement to the police investigators in Plaridel, Bulacan after the
robbery, he described the felons. When asked by the police investigators if he could identify the
robbers if he see them again, Rodolfo declared that he would be able to identify them:
8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na nanghold-up sa minamaneho
mong bus?
S: Halos magkasing taas, 54 o 55 katam-taman ang pangangatawan, parehong nakapantalon ng
maong naka-suot ng jacket na maong, parehong naka rubber shoes at pareho ring naka sumbrero.
9. T: Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa sila?
S: Makikilala ko po sila.[40]
When asked to identify the robbers during the trial, Rodolfo spontaneously pointed to and
identified Juan and Victor:
QFiscal:
(to the witness)
xxx
Q Those two man (sic) who stated that it was a hold-up inside the bus and who fired the gun are
they inside the Court room (sic) today?
A Yes, maam.
Q Point to us?
Interpreter:
Witness pointing to a man wearing red T-shirt and when asked his name answered Victor Acuyan
and the man wearing green T-shirt and when asked his name answered Juan Gonzales.[41]
For his part, Romulo likewise spontaneously pointed to and identified Juan and Victor as the
culprits when asked by the prosecutor to identify the robbers from among those in the courtroom:
xxx
Q You said that you were robbed inside the bus, how does (sic) the robbing took place?
A They announced a hold up maam, afterwards, they confiscated the money of the passengers
including my collections.
Q You said they who announced the hold up, whose (sic) these they you are referring to?
A Those two (2), maam.
Interpreter:
Witness pointing to the two accused.
Public Pros.:
May we request that the accused be identified, Your Honor.
Court:
(to both accused)
What are your names?
A Juan Escote, Your Honor. Victor Acuyan, Your Honor.
Public Pros.:
May we know from the accused if his name is Juan Escote Gonzales because he just said Juan
Escote. In the Information, it is one Juan Gonzales, Jr., so, we can change, Your Honor.[42]
Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in Tarlac, Tarlac,
Juan was in possession of the identification card[43] of the slain police officer. Juan failed to
explain to the trial court how and under what circumstances he came into possession of said
identification card. Juan must necessarily be considered the author of the robbery and the killing
of SPO1 Manio, Jr. In People v. Mantung,[44] we held:
xxx [T]he recovery of part of the loot from Mantung or the time of his arrest gave rise to a legal
presumption of his guilt. As this Court has held, [I]n the absence of an explanation of how one has
come into possession of stolen effects belonging to a person wounded and treacherously killed, he
must necessarily be considered the author of the aggression and death of the said person and of the
robbery committed on him.
While police investigators did not place Juan and Victor in a police line-up for proper
identification by Rodolfo and Romulo, it cannot thereby be concluded that absent such line-up,
their identification by Romulo and Rodolfo as the authors of the robbery with homicide was
unreliable. There is no law or police regulation requiring a police line-up for proper identification
in every case. Even if there was no police line-up, there could still be proper and reliable
identification as long as such identification was not suggested or instigated to the witness by the
police.[45] In this case, there is no evidence that the police officers had supplied or even suggested
to Rodolfo and Romulo the identities of Juan and Victor as the perpetrators of the robbery and the
killing of SPO1 Manio, Jr.
The Felony Committed by Juan and Victor
The Court finds that the trial court committed no error in convicting Juan and Victor of robbery
with homicide. Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act
7659, reads:
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 suffer:
crime of homicide shall have been committed, or when the robbery shall have been accompanied
by rape or intentional mutilation or arson.
To warrant the conviction of Juan and Victor for the said charge, the prosecution was burdened to
prove the confluence of the following essential elements:
xxx (a) the taking of personal property with the use of violence or intimidation against a person;
(b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or
animus lucrandi and (d) on the occasion of the robbery or by reason thereof, the crime of
homicide, which is therein used in a generic sense, was committed. xxx[46]
The intent to rob must precede the taking of human life.[47] In robbery with homicide, so long as
the intention of the felons was to rob, the killing may occur before, during or after the robbery. In
People v. Barut,[48] the Court held that:
In the controlling Spanish version of article 294, it is provided that there is robbery with homicide
cuando con motivo o con ocasin del robo resultare homicidio. Basta que entre aquel este exista
una relacin meramente ocasional. No se requiere que el homicidio se cometa como medio de
ejecucin del robo, ni que el culpable tenga intencin de matar, el delito existe segn constanta
jurisprudencia, aun cuando no concurra animo homicida. Incluso si la muerte sobreviniere por
mero accidente, siempre que el homicidio se produzca con motivo con ocasin del robo, siendo
indiferente que la muerte sea anterior, coetnea o posterior a ste (2 Cuello Calon, Derecho Penal,
1975 14th Ed. P. 872).
Even if the victim of robbery is other than the victim of the homicide committed on the occasion
of or by reason of the robbery, nevertheless, there is only one single and indivisible felony of
robbery with homicide. All the crimes committed on the occasion or by reason of the robbery are
merged and integrated into a single and indivisible felony of robbery with homicide. This was the
ruling of the Supreme Court of Spain on September 9, 1886, et sequitur cited by this Court in
People v. Mangulabnan, et al.[49]
We see, therefore, that in order to determine the existence of the crime of robbery with homicide it
is enough that a homicide would result by reason or on the occasion of the robbery (Decision of
the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgos
Penal Code, p. 267 and 259-260, respectively). This High Tribunal speaking of the accessory
character of the circumstances leading to the homicide, has also held that it is immaterial that the
death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907; April
30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on occasion of
the robbery, inasmuch as it is only the result obtained, without reference or distinction as to the
circumstances, causes, modes or persons intervening in the commission of the crime, that has to be
taken into consideration (Decision of January 12, 1889 see Cuello Calons Codigo Penal, p. 501-
502).
Case law has it that whenever homicide has been committed by reason of or on the occasion of the
robbery, all those who took part as principals in the robbery will also be held guilty as principals
of robbery with homicide although they did not take part in the homicide, unless it appears that
they endeavored to prevent the homicide.[50]
In this case, the prosecution proved beyond reasonable doubt that Juan and Victor conspired and
confabulated together in robbing the passengers of the Five Star Bus of their money and valuables
and Romulo of his collections of the fares of the passengers and in killing SPO1 Manio, Jr. with
impunity on the occasion of the robbery. Hence, both Juan and Victor are guilty as principals by
direct participation of the felony of robbery with homicide under paragraph 1, Article 294 of the
Revised Penal Code, as amended by R.A. 7659, punishable by reclusion perpetua to death.
The Proper Penalty
The trial court imposed the supreme penalty of death on Juan and Victor for robbery with
homicide, defined in Article 294, paragraph 1 of the Revised Penal Code, punishable with
reclusion perpetua. Under Article 63, paragraph 1 of the Revised Penal Code, the felons should be
meted the supreme penalty of death when the crime is committed with an aggravating
circumstance attendant in the commission of the crime absent any mitigating circumstance. The
trial court did not specify in the decretal portion of its decision the aggravating circumstances
attendant in the commission of the crime mandating the imposition of the death penalty. However,
it is evident from the findings of facts contained in the body of the decision of the trial court that it
imposed the death penalty on Juan and Victor on its finding that they shot SPO1 Manio, Jr.
treacherously on the occasion of or by reason of the robbery:
xxx
The two (2) accused are incomparable in their ruthlessness and base regard for human life. After
stripping the passengers of their money and valuables, including the firearm of the victim, they
came to decide to execute the latter seemingly because he was a police officer. They lost no time
pouncing him at the rear section of the bus, aimed their firearms at him and, in a derisive and
humiliating tone, told him, before pulling the trigger, that they were rather sorry but they are going
to kill him with his own gun; and thereafter, they simultaneously fired point blank at the hapless
policeman who was practically on his knees begging for his life. Afterwhich, they calmly
positioned themselves at the front boasting for all to hear, that killing a man is like killing a
chicken (Parang pumapatay ng manok). Escote, in particular, is a class by himself in callousness.
xxx.[51]
The Court agrees with the trial court that treachery was attendant in the commission of the crime.
There is treachery when the following essential elements are present, viz: (a) at the time of the
attack, the victim was not in a position to defend himself; and (b) the accused consciously and
deliberately adopted the particular means, methods or forms of attack employed by him.[52] The
essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting
victim, depriving the latter of any chance to defend himself and thereby ensuring its commission
without risk of himself. Treachery may also be appreciated even if the victim was warned of the
danger to his life where he was defenseless and unable to flee at the time of the infliction of the
coup de grace.[53] In the case at bar, the victim suffered six wounds, one on the mouth, another on
the right ear, one on the shoulder, another on the right breast, one on the upper right cornea of the
sternum and one above the right iliac crest. Juan and Victor were armed with handguns. They first
disarmed SPO1 Manio, Jr. and then shot him even as he pleaded for dear life. When the victim
was shot, he was defenseless. He was shot at close range, thus insuring his death. The victim was
on his way to rejoin his family after a hard days work. Instead, he was mercilessly shot to death,
leaving his family in grief for his untimely demise. The killing is a grim example of the utter
inhumanity of man to his fellowmen.
The issues that now come to fore are (1) whether or not treachery is a generic aggravating
circumstance in robbery with homicide; and if in the affirmative, (b) whether treachery may be
appreciated against Juan and Victor. On the first issue, we rule in the affirmative. This Court has
ruled over the years[54] that treachery is a generic aggravating circumstance in the felony of
robbery with homicide, a special complex crime (un delito especial complejo) and at the same
time a single and indivisible offense (uno solo indivisible).[55] However, this Court in two cases
has held that robbery with homicide is a crime against property and hence treachery which is
appreciated only to crimes against persons should not be appreciated as a generic aggravating
circumstance.[56] It held in another case that treachery is not appreciated in robbery with rape
precisely because robbery with rape is a crime against property.[57] These rulings of the Court
find support in case law that in robbery with homicide or robbery with rape, homicide or rape are
merely incidents of the robbery, with robbery being the main purpose and object of the criminal.
[58] Indeed, in People vs. Cando,[59] two distinguished members of this Court advocated a
review of the doctrine that treachery is a generic aggravating circumstance in robbery with
homicide. They opined that treachery is applicable only to crimes against persons. After all, in
People vs. Bariquit,[60] this Court in a per curiam decision promulgated in year 2000 declared
that treachery is applicable only to crimes against persons. However, this Court held in People vs.
Cando that treachery is a generic aggravating circumstance in robbery with homicide, citing its
prior rulings that in robbery with homicide, treachery is a generic aggravating circumstance when
the victim of homicide is killed with treachery. This Court opted not to apply its ruling earlier that
year in People vs. Bariquit.
Legal Luminaries in criminal law and eminent commentators of the Revised Penal Code are not in
full accord either. Chief Justice Ramon C. Aquino (Retired) says that treachery is appreciated only
in crimes against persons as defined in Title 10, Book Two of the Code.[61] Chief Justice Luis B.
Reyes (Retired) also is of the opinion that treachery is applicable only to crimes against persons.
[62] However, Justice Florenz D. Regalado (Retired) is of a different view.[63] He says that
treachery cannot be considered in robbery but can be appreciated insofar as the killing is
concerned, citing the decisions of this Court in People vs. Balagtas[64] for the purpose of
determining the penalty to be meted on the felon when the victim of homicide is killed with
treachery.
It must be recalled that by Royal Order of December 17, 1886 the 1850 Penal Code in force in
Spain, as amended by the Codigo Penal Reformado de 1870 was applied in the Philippines. The
Penal Code of 1887 in the Philippines was amended by Act 3815, now known as the Revised
Penal Code, which was enacted and published in Spanish. In construing the Old Penal Code and
the Revised Penal Code, this Court had accorded respect and persuasive, if not conclusive effect to
the decisions of the Supreme Court of Spain interpreting and construing the 1850 Penal Code of
Spain, as amended by Codigo Penal Reformado de 1870.[65]
Article 14, paragraph 16 of the Revised Penal Code reads:
ART. 14. Aggravating circumstances. The following are aggravating circumstances:
xxx
16. That the act be committed with treachery (alevosia). There is treachery when the offender
commits any of the crimes against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.
The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860 Penal Code and the
Codigo Penal Reformado de 1870 of Spain which reads:
Art. 10 ...2. Ejecutar el hecho con alevosia. Hay alevosia cuando el culpable comete cualquiera de
los delitos contra las personas empleando medios, modos o for mas en la ejecucion que tiendan
directa y especialmente a asegurarla sin riesgo para su persona, que proceda de la defensa que
pudiera hacer el ofendido. xxx
Article 14, paragraph 16 of the Revised Penal Code is a reproduction of the 1850 Penal Code of
Spain and the Codigo Penal Reformado de 1870 with a slight difference. In the latter law, the
words las personas (the persons) are used, whereas in Article 14, paragraph 6, of the Revised
Penal Code, the words the person are used.
Going by the letter of the law, treachery is applicable only to crimes against persons as
enumerated in Title Eight, Chapters One and Two, Book II of the Revised Penal Code. However,
the Supreme Court of Spain has consistently applied treachery to robbery with homicide,
classified as a crime against property. Citing decisions of the Supreme Court of Spain, Cuello
Calon, a noted commentator of the Spanish Penal Code says that despite the strict and express
reference of the penal code to treachery being applicable to persons, treachery also applies to other
crimes such as robbery with homicide:[66]
Aun cuando el Codigo solo se refiere a los delitos contra las personas, cabe estimarla en los que
no perteneciendo a este titulo se determinan por muerte o lesiones, como, en el robo con
homicidio, y en el homicidio del Jefe del Estado que es un delito contra la seguridad interior del
Estado, y no obstante la referencia estricta del texto legal a los delitos contra las personas no es la
alevosia aplicable a la mayoria de ellos, no lo es en el homicidio, pues como su concurrencia lo
cualifica lo transforma en delito distinto, en asesinato, ni en el homicidio consentido (art. 409), ni
en la ria tumultuaria (art. 408) ni en el infanticidio (art. 410). xxx. [67]
Viada also says that treachery is appreciated in crimes against persons (delitos contra personas)
and also in robbery with homicide (robo con homicidio).[68]
Contra las personas. - Luego la circunstancia de alevosia solo puede apreciarse en los delitos
provistos desde el art. 417 al 447, y en algun otro, como el de robo con homicidio, atentario, a la
vez que contra la propriedad, contra la persona.
Thus, treachery is a generic aggravating circumstance to robbery with homicide although said
crime is classified as a crime against property and a single and indivisible crime. Treachery is not
a qualifying circumstance because as ruled by the Supreme Court of Spain in its decision dated
September 11, 1878, the word homicide is used in its broadest and most generic sense.[69]
Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or increasing the
penalty for a crime, aggravating circumstances shall be taken into account. However, aggravating
circumstances which in themselves constitute a crime specially punishable by law or which are
included by the law in defining a crime and prescribing a penalty therefor shall not be taken into
account for the purpose of increasing the penalty.[70] Under paragraph 2 of the law, the same rule
shall apply with respect to any aggravating circumstances inherent in the crime to such a degree
that it must of necessity accompany the commission thereof.
1. Aggravating circumstances which in themselves constitute a crime specially punishable by law
or which are included by the law in defining a crime and prescribing the penalty therefor shall not
be taken into account for the purpose of increasing the penalty.
xxx
2. The same rule shall apply with respect to any aggravating circumstances inherent in the crime to
such a degree that it must be of necessity accompany the commission thereof.
Treachery is not an element of robbery with homicide. Neither does it constitute a crime specially
punishable by law nor is it included by the law in defining the crime of robbery with homicide and
prescribing the penalty therefor. Treachery is likewise not inherent in the crime of robbery with
homicide. Hence, treachery should be considered as a generic aggravating circumstance in robbery
with homicide for the imposition of the proper penalty for the crime.
In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that treachery is a
generic aggravating circumstance not only in crimes against persons but also in robbery with
homicide. The high court of Spain applied Article 79 of the Spanish Penal Code (Article 62 of the
Revised Penal Code) and ruled that since treachery is not a constitutive element of the crime of
robbery with homicide nor is it inherent in said crime, without which it cannot be committed,
treachery is an aggravating circumstance to said crime. The high court of Spain was not
impervious of the fact that robbery with homicide is classified as a crime against property. Indeed,
it specifically declared that the classification of robbery with homicide as a crime against property
is irrelevant and inconsequential in the application of treachery. It further declared that it would be
futile to argue that in crimes against property such as robbery with homicide, treachery would
have no application. This is so, the high tribunal ruled, because when robbery is coupled with
crimes committed against persons, the crime is not only an assault (ataca) on the property of the
victims but also of the victims themselves (ofende):
xxx que la circunstancia agravante de alevosia ni es constitutiva del delito complejo de robo y
homicidio, ni de tal modo inherente que sin ella no pueda cometerse, sin que quepa arguir que en
los delitos contra la propiedad no debe aquella tener aplicacion, porque cuando estos son
complejos de los que se cometen contra las personas, no solo se ataca a la propiedad, sino que se
ofende a estas. xxx[71]
In fine, in the application of treachery as a generic aggravating circumstance to robbery with
homicide, the law looks at the constituent crime of homicide which is a crime against persons and
not at the constituent crime of robbery which is a crime against property. Treachery is applied to
the constituent crime of homicide and not to the constituent crime of robbery of the special
complex crime of robbery with homicide.
The crime of robbery with homicide does not lose its classification as a crime against property or
as a special complex and single and indivisible crime simply because treachery is appreciated as a
generic aggravating circumstance. Treachery merely increases the penalty for the crime
conformably with Article 63 of the Revised Penal Code absent any generic mitigating
circumstance.
In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled that when the victim of
robbery is killed with treachery, the said circumstance should be appreciated as a generic
aggravating circumstance in robbery with homicide:
xxx que si aparece probado que el procesado y su co-reo convinieron en matar a un conocido
suyo, compaero de viaje, para lo cual desviaron cautelosamente los carros que guiaban, en uno de
los cuales iba el interfecto, dirigiendolos por otro camino que conducia a un aljibon, y al llegar a
este, valiendose de engao para hacer bajar a dicho interfecto, se lanzaron de improviso sobre el,
tirandolo en tierra, robandole el dinero, la manta y los talegos que llevaba, y atandole al pie una
piedra de mucho peso, le arrojaron con ella a dicho aljibon, dados estos hechos, no cabe duda que
constituyen el delito complejo del art. 516, num. I, con la circunstancia agravante de alevosia,
puesto que los medios, forma y modos empleados en la ejecucion del crimen tendieron directa y
especialmente a asegurarla sin riesgo para sus autores, procedente de la defensa del ofendido.[72]
In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the
victim of homicide is killed by treachery.
On the second issue, we also rule in the affirmative. Article 62, paragraph 4 of the Revised Penal
Code which was taken from Article 80 of the Codigo Penal Reformado de 1870,[73] provides that
circumstances which consist in the material execution of the act, or in the means employed to
accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had
knowledge of them at the time of the execution of the act or their cooperation therein. The
circumstances attending the commission of a crime either relate to the persons participating in the
crime or into its manner of execution or to the means employed. The latter has a direct bearing
upon the criminal liability of all the accused who have knowledge thereof at the time of the
commission of the crime or of their cooperation thereon.[74] Accordingly, the Spanish Supreme
Court held in its Sentencia dated December 17, 1875 that where two or more persons perpetrate
the crime of robbery with homicide, the generic aggravating circumstance of treachery shall be
appreciated against all of the felons who had knowledge of the manner of the killing of victims of
homicide, with the ratiocination that:
xxx si por la Ley basta haberse ejecutado un homicidio simple con motivo ocasin del robo para la
imposicion de la pena del art. 516, num. I, no puede sere ni aun discutible que, concurriendo la
agravante de alevosia, se aumente la criminalidad de los delincuentes; siendo aplicable a todos los
autores del hecho indivisible, porque no es circunstancia que afecte a la personalidad del
delincuente, de las que habla el art. 80 del Codigo penal en su primera parte, sino que consiste en
la ejecusion material del hecho y en los medios empleados para llevarle a cabo, cuando de ellos
tuvieron conocimiento todos los participantes en el mismo por el concierto previo y con las
condiciones establecidad en la segunda parte del citado articulo.[75]
Be that as it may, treachery cannot be appreciated against Juan and Victor in the case at bar
because the same was not alleged in the Information as mandated by Section 8, Rule 110 of the
Revised Rules on Criminal Procedures which reads:
Sec. 8. Designation of the offense. - The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference shall
be made to the section or subsection of the statute punishing it.
Although at the time the crime was committed, generic aggravating circumstance need not be
alleged in the Information, however, the general rule had been applied retroactively because if it is
more favorable to the accused.[76] Even if treachery is proven but it is not alleged in the
information, treachery cannot aggravate the penalty for the crime.
There being no modifying circumstances in the commission of the felony of robbery with
homicide, Juan and Victor should each be meted the penalty of reclusion perpetua conformably
with Article 63 of the Revised Penal Code.
Civil Liability of Juan and Victor
The trial court awarded the total amount of P300,000.00 to the heirs of SPO1 Manio, Jr. The court
did not specify whether the said amounts included civil indemnity for the death of the victim,
moral damages and the lost earnings of the victim as a police officer of the PNP. The Court shall
thus modify the awards granted by the trial court.
Since the penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the victim are
entitled to civil indemnity in the amount of P50,000.00. The heirs are also entitled to moral
damages in the amount of P50,000.00, Rosemarie Manio having testified on the factual basis
thereof.[77] Considering that treachery aggravated the crime, the heirs are also entitled to
exemplary damages in the amount of P25,000.00. This Court held in People vs. Catubig[78] that
the retroactive application of Section 8, Rule 110 of the Revised Rules of Criminal Procedure
should not impair the right of the heirs to exemplary damages which had already accrued when the
crime was committed prior to the effectivity of the said rule. Juan and Victor are also jointly and
severally liable to the said heirs in the total amount of P30,000.00 as actual damages, the
prosecution having adduced evidence receipts for said amounts. The heirs are not entitled to
expenses allegedly incurred by them during the wake as such expenses are not supported by
receipts.[79] However, in lieu thereof, the heirs are entitled to temperate damages in the amount of
P20,000.00.[80] The service firearm of the victim was turned over to the Evidence Custodian of
the Caloocan City Police Station per order of the trial court on October 22, 1997.[81] The
prosecution failed to adduce documentary evidence to prove the claim of Five Star Bus, Inc. in the
amount of P6,000.00. Hence, the award should be deleted. However, in lieu of actual damages, the
bus company is entitled to temperate damages in the amount of P3,000.00.[82]
The heirs are likewise entitled to damages for the lost earnings of the victim. The evidence on
record shows that SPO1 Manio, Jr. was born on August 25, 1958. He was killed on September 28,
1996 at the age of 38. He had a gross monthly salary as a member of the Philippine National
Police of P8,065.00 or a gross annual salary of P96,780.00. Hence, the heirs are entitled to the
amount of P1,354,920.00 by way of lost earnings of the victim computed, thus:
Age of the victim = 38 years old
Life expectancy = 2/3 x (80 age of the victim at the time of death)
= 2/3 x (80-38)
= 2/3 x 42
= 28 years
Gross Annual Income = gross monthly income x 12 months
= P8,065.00 x 12
= P96,780.00
Living Expenses = 50% of Gross Annual Income
= P96,780.00 x 0.5
= P48,390.00
Lost Earning Capacity = Life expectancy x [Gross Annual Income-
Living expenses]
= 28 x [P96,780.00 P48,390.00]
= 28 x P48,390.00
= P1,354,920.00
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Bulacan is
hereby AFFIRMED with MODIFICATIONS. Accused-appellants Juan Gonzales Escote, Jr. and
Victor Acuyan are hereby found guilty beyond reasonable doubt of the felony of robbery with
homicide defined in Article 294, paragraph 1 of the Revised Penal Code and, there being no
modifying circumstances in the commission of the felony, hereby metes on each of them the
penalty of RECLUSION PERPETUA. Said accused-appellants are hereby ordered to pay jointly
and severally the heirs of the victim SPO1 Jose C. Manio, Jr. the amounts of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, P1,349,920.00 for lost earnings, P30,000.00 as actual
damages and P25,000.00 as exemplary damages. The award of P6,000.00 to the Five Star Bus,
Inc. is deleted. However, the said corporation is awarded the amount of P3,000.00 as temperate
damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez,
Corona, Carpio-Morales, and Azcuna, JJ., concur.
Vitug J., please see separate opinion.
Ynares-Santiago, and Sandoval-Gutierrez, JJ., join J. Vitugs separate opinion.
[1] Penned by Judge Basilio R. Gabo, Jr.

[2] Exhibit A.
[3] Exhibit H.
[4] Exhibit E.
[5] Exhibits A and G.
[6] Exhibits C to C-4.
[7] Exhibit B-1.
[8] Exhibit H.
[9] Exhibit I.
[10] Exhibit F.
[11] Original Records of Crim. Case No. 443-M-97, p. 2.
[12] Ibid., p. 161.
[13] Id., p. 163.
[14] Id., p. 179.
[15] Id., p. 175.
[16] Rollo, p. 70.
[17] Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, 62 SCRA 258 (1975).
[18] Fulgado, et al. vs. Court of Appeals, et al., 182 SCRA 81 (1990).
[19] People vs. Suplito, 314 SCRA 493 (1999).
[20] See note 16, supra.
[21] People vs. Digno, Jr. 250 SCRA 237 (1995).
[23] Original Records, p. 70.
[24] Ibid., p. 86.
[25] Id., p. 89.
[26] Id., p. 92.
[28] Original Records , p. 96.
[29] Ibid., p.107.
[30] Id., p. 113.
[31] Id., p. 157.
[32] Id., p. 172.
[33] 31 CORPUS JURIS SECUNDUM, 87, p. 494.
[34] Original Records, pp. 192-193.
[35] People vs. Ofido, 342 SCRA 155 (2000).
[36] TSN, Cacatian, November 18, 1997, pp. 6-7.
[37] TSN, Digap, March 31, 1998, p. 22.
[38] Ditche vs. Court of Appeals, et al., 327 SCRA 301 (2000).
[39] TSN, Cacatian, November 18, 1997, pp. 19-29.
[40] Exhibit A.
[41] Ibid., pp. 8-9.
[42] TSN, March 31, 1998, pp. 19-20.
[43] Exhibit H.
[44] 310 SCRA 819 (1999).
[45] People v. Lubong, 332 SCRA 672 (2000).
[46] People vs. Nang, 289 SCRA 16 (1998).
[47] People vs. Ponciano, 204 SCRA 627 (1991).
[48] 89 SCRA 14 (1979).
[49] 99 PHIL. 992 (1956).
[50] People vs. Cando, 344 SCRA 330 (2000).
[51] Original Records, pp. 194-195.
[52] People vs. Reyes, 287 SCRA 229 (1998).
[53] People vs. Bustos, 171 SCRA 243 (1989).
[54] e.g. People vs. Semaada, 103 Phil 790 (1958); People vs. Bautista, et al., 107 Phil 1091
(1960); People vs. Tiongson, et al., 6 SCRA 431 (1962); People vs. Pedro, et al., 16 SCRA 57
(1966); People vs. Sigayan, et al, 16 SCRA 839 (1966); People vs. Pujinio, et al., 27 SCRA 1185
(1969); People vs. Saquing, et al., 30 SCRA 834 (1969); People vs. Cornelio, et al., 39 SCRA 435
(1971); People vs. Repato, 91 SCRA 488 (1979); People vs. Pajanustan, 97 SCRA 699 (1980);
People vs. Arcamo, et al., 105 SCRA 707 (1981); People vs. Tintero, 111 SCRA 714 (1982);
People vs. Gapasin, et al., 145 SCRA 178 (1986); People vs. Badilla, 185 SCRA 554 (1990);
People vs. Manansala, 211 SCRA 66 (1992); People vs. Bechayda, 212 SCRA 336 (1992); People
vs. Vivas, 232 SCRA 238 (1994); People vs. Pacapac, et al., 248 SCRA 77 (1995); People vs.
Mores, et al., 311 SCRA 342 (1999); People vs. Reyes, et al., 309 SCRA 622 (1999); and People
vs. Abdul, et al., 310 SCRA 246 (1999).
[55] Sentencia de 17 de Diciembre de 1875 of the Supreme Court of Spain. In several cases, this
Court held that robbery with homicide is a special complex crime, e.g., People vs. Jarandilla, 339
SCRA 381(2000); People vs. Quibido, 338 SCRA 607 (2000); People vs. Aquino, 329 SCRA 247
(2000); People vs. Zuela, et al., 323 SCRA 589 (2000); People vs. Tao, 331 SCRA 449 (2000). In
some cases, this Court has held that robbery with homicide is a single and indivisible crime, e.g.,
People vs. Labita, 99 Phil. 1068 (unreported [1956]); People vs Alfeche, Jr., 211 SCRA 770
(1992).
[56] People vs. Timple, 237 SCRA 52 (1994); People vs. San Pedro, 95 SCRA 306 (1980).
[57] People vs. Loseo, G.R. No. 5508-09, April 29, 1954 (unpublished). Under Republic Act 8383,
rape is a crime against persons.
[58] People vs. Navales, 266 SCRA 569 (1997).
[59] 344 SCRA 330 (2000).
[60] 341 SCRA 600 (2000).
[61] AQUINO, THE REVISED PENAL CODE, 1987 ed., Vol. I, p. 386.
[62] REYES, THE REVISED PENAL CODE, 1993 ed., Vol. I, p. 412.
[63] REGALADO, CRIMINAL LAW CONSPECTUS, 1st ed., p. 95.
[64] 68 Phil. 675 (1939)..
[65] People vs. Mangulaban, 99 Phil. 992 (1956); People vs. Mesias, 65 Phil. 267 (1939);
Marasigan vs. Robles, 55 O.G. 8297; United States vs. Samonte, L-3422, August 3, 1907; United
States vs. Ipil, et al., 27 Phil 530 (1914), concurring opinion: United States vs. Landasan, 35 Phil
359 (1916).
[66] CUELLO CALON DERECHO PENAL, 1960 ed., Vol. I, p. 592.
[67] Decisions dated January 19, 1905, April 18, 1908, June 28, 1922 and December 18, 1947.
[68] SALVADOR VIADA CODIGO PENAL REFORMADO DE 1870, Concordado y Comentado
5th ed. 1926, Tomo II, p. 252. Articles 417 to 447 refer to crimes against persons under the Codigo
Penal Reformado de 1870. In Article 516, Title XIII, Chapter 1 of the Codigo Penal Reformado de
1870, robbery with homicide is a crime against property.
[69] Cited in United States vs. Landasan, 35 Phil 359 (1916).
[70] Article 62, paragraphs 1 and 2 were taken from Article 79 of the Penal Code of Spain, viz:
No producen el efecto de aumentar la pena las circunstancias agravantes que por si mismas
constituyeren un delito especialmente penado por la Ley, o que esta haya expresado al describirlo
y penarlo.
Tampoco lo producen aquellas circunstancias agravantes de tal manera inherentes al delito, que sin
la concurrencia de ellas no pudiera cometerse. xxx.
[71] Vide, Note 63, p. 254.
[72] Ibid., p. 255.
[73] Las circunstancias agravantes o atenuantes que consistieren en la disposicion moral del
delincuente, en sus relaciones particulares con el ofendido, o en otra causa personal, serviran para
agravar o atenuar la responsabilidad solo de aquello autores, complices o encubridores en quienes
concurrieren.
Las que consistieren en la ejecucion material del hecho o en los medios empleados para realizarlo
serviran para agravar o atenuar la responsabilidad unicamente de los que tuvieren conocimiento de
ellas en el momento de la accion o de su cooperacion para el delito. xxx
[74] United States vs. Ancheta, 15 Phil 43 (1910).
[75] Ibid.
[76] People vs. Onabia, 306 SCRA 23 (1999).
[77] People vs. Tao, 331 SCRA 449 (2000).
[78] 363 SCRA 621 (2000).
[79] People vs. Cordero, 263 SCRA 122 (1996).
[80] Article 2234, New Civil Code.
[81] Original Record, p. 82.
[82] See note 79.
FIRST DIVISION
[G.R. Nos. 122976-77. November 16, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REGANDO VILLONEZ y PASCASIO,

RUEL SANTOS y LAPADA, JOHN DOE, PETER DOE, ELMER DOE, and ROY DOE,
accused, vs. EDUARDO N. SANTOS @ "EDDIE," REYNALDO N. SANTOS @ "REY,"
FERNANDO N. SANTOS @ "DEDE," EMERLITO N. SANTOS @ "ELMER," and RUDY N.
SANTOS @ "BUDDA," accused, REGANDO VILLONEZ y PASCASIO, EMERLITO N.
SANTOS, and RUEL SANTOS, accused-appellants.
DECISION
DAVIDE, JR., J.:
Accused-appellants REGANDO VILLONEZ,[1] RUEL SANTOS,[2] and EMERLITO SANTOS

pray for a reversal of their conviction for MURDER decreed in a Joint Decision[3] rendered on 23
November 1995 by the Regional Trial Court (RTC) of Malabon, Metro Manila, Branch 170, in
Criminal Cases Nos. 14943-MN and 15506-MN.
The information[4] in Criminal Case No. 14943-MN charged REGANDO and RUEL with the
crime of murder allegedly committed in the following manner:
That on or about the 3rd day of May 1994 in Malabon, Metro Manila, and within the jurisdiction
of this Honorable Court, the above-named accused [Regando Villonez y Pascasio, Ruel Santos y
Lapada, John Doe, Peter Doe, Elmer Doe and Roy Doe], conspiring together and mutually helping
one another, without any justifiable cause, with deliberate intent to kill, with treachery, taking
advantage of superior strength, and being armed with bladed weapons, did then and there wilfully,
unlawfully and feloniously attack, assault and stab one GERARDO LONGASA on the different
parts of the body, thereby inflicting upon the latter serious physical injuries, which caused his
death.
CONTRARY TO LAW.
The case was assigned to Branch 170 of the RTC of Malabon, Metro Manila.
Upon arraignment, REGANDO and RUEL entered a plea of not guilty.[5]
Meanwhile, accused-appellant EMERLITO, together with Eduardo, Reynaldo, Fernando, and

Rudy, all surnamed Santos, was likewise charged with murder in an information,[6] which was
later docketed as Criminal Case No. 15506-MN. The crime was allegedly committed as follows:
That on or about the 3rd day of May, 1994, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused
[Eduardo N. Santos @ Eddie, Reynaldo N. Santos @ Rey, Fernando N. Santos @ Dede, Emerlito
N. Santos @ Elmer, and Rudy N. Santos @ Budda], conspiring, confederating with Regando P.
Villonez and Ruel Santos who were already charged for the same crime under Criminal Case No.
14943 and without any justifiable cause, with deliberate intent to kill, with treachery taking
advantage of superior strength and being armed with a [sic] bladed weapons, did then and there
willfully, unlawfully and feloniously attack, assault and stab one GERARDO LONGASA on the
different parts of the body, thereby inflicting upon the latter serious physical injuries, which
caused his death.
CONTRARY TO LAW.
Only EMERLITO was arrested; his co-accused have remained at large.
Evidently, the killing involved in Criminal Case No. 14943-MN was the same as that in Criminal
Case No. 15506-MN. Hence, the second case was transferred from Branch 72 to Branch 170 of
the RTC of Malabon, Metro Manila, and was consolidated and jointly tried with the first case
pursuant to the Order[7] of 22 March 1995.
At his arraignment, EMERLITO entered a plea of not guilty.[8]
The witnesses for the prosecution were Edgar Jimenez and Dr. Ronaldo Mendez, a Medico-Legal
Officer of the National Bureau of Investigation; and the witnesses for the defense were the
accused-appellants, as well as Arthur Aquino and Conrado Gungon.
Edgar Jimenez testified that on 3 May 1994, at around 9:00 p.m., while he was resting inside his
store at Hulo, Malabon, Metro Manila, a certain Tonton informed him that his close friend
GERARDO LONGASA had a fistfight with one Rudy, alias Dede,[9] at Liwayway Street, Baritan,
Malabon. Edgar proceeded to the area to mediate, since LONGASA and Rudy were both his
friends. Edgar passed through Javier II Street in going to Liwayway Street. At Javier II Street, a
group of seven armed men, including accused-appellants, attacked Edgar. RUEL hit Edgar on his
forehead and back with a bottle. Edgar was able to escape from his attackers. While fleeing, he ran
past LONGASA, who seemed drunk. When Edgar called LONGASA, the attackers were already
upon LONGASA.[10]
While he was about eight arms length away from LONGASA, Edgar saw EMERLITO hit
LONGASA with a 2 x 2 inches piece of wood. Simultaneously, REGANDO and RUEL struck
LONGASA with bottles. Rudy Santos and Eddie Santos then stabbed LONGASA seven and eight
times, respectively, even as two other persons named Rey and Budda held LONGASAs arms.
LONGASA fell to the ground. Edgar saw all these because the scene of the incident was
illuminated by a big fluorescent lamp located about three arms length away. Edgar rushed to
LONGASAs house and reported the incident to the latters parents.[11]
Dr. Ronaldo Mendez conducted an autopsy on LONGASAs corpse. His findings are as follows:
Abrasions: 1.0 x 0.6 cms., forehead, left side; 6.0 x 4.0 cms., zygomatic area, left; 3.6 x 1.1 cms.,
nasal area, right side; 4.0 x 2.0 cms., maxillary area, left; 2.0 x 0.6 cms., infranasal area, left side;
0.5 x 0.4 cms., mandibular area, left side; 6.6 x 4.2 cms., left upper quadrant, abdomen, 5.0 x 3.0
cms., anterior aspect, upper third, arm, left; 2.5 x 1.3 cms., left lumbar area; 5.0 x 2.5 cms., elbow,
left.
Contusions, purplish: 7.4 x 6.2 cms., anterior chest wall, left side; 4.4 x 2.3 cms., anterior aspect,
upper third, arm, right.
Lacerated wounds: 1.1 cms., supraorbital ridge, right; 1.2 cms., posterior aspect, upper third,
forearm, left.
Stab wounds:
1) 3 in number, sizes ranging from 0.5 to 1.6 cms., elliptical clean-cut edges, with one extremity
sharp and the other blunt, located at the anterior chest wall, left side, over an area of 15.0 cms., x
7.0 cms., the farthest is located 10.0 cms., from the anterior median line, while the nearest is
located 3.0 cms., from the anterior median line, directed backwards, upwards, downwards and
medially, involving the soft tissues, perforating the right ventricle and penetrating the lower lobe
of the left lung with an average depth of approximately 7.5 cms.
2) 1.4 cms., elliptical, clean cut edges, with sharp medial extremity and blunt lateral extremity,
located at the posterior chest wall, left side, 7.0 cms., from the posterior median line, directed
forwards, upwards and laterally, involving the soft tissues only with an approximate depth of 3.0
cms.
3) 1.5 cms., elliptical, clean-cut with sharp medial extremity and blunt lateral extremity, located at
the posterior chest wall, left side, 9.0 cms., from the posterior median line, directed forwards,
upwards and medially, involving the soft tissues, from the 6th intercostal space, into the left
thoracic cavity penetrating the upper lobe of the left lung with an approximate depth 5.0 cms.
4) 1.6 cms., elliptical, clean cut edges, with sharp lateral extremity and blunt medial extremity,
located at the anterior chest wall, right side, 3.0 cms., from the posterior median line, directed
forwards, upwards and medially, involving the soft tissue only with an approximate depth of 2.0
cms.
Hemopericardum, 230 cc.
Hemothorax, left, 1095 cc.
Other visceral organs, pale.
Stomach is almost empty.
CAUSE OF DEATH:
STAB WOUNDS.[12]
Dr. Mendez explained that the abrasions were caused by hard, rough surface, possibly cement or a
piece of wood. The contusions and lacerations were caused by a blunt object, which could have
been a piece of wood, a bottle, a pipe, or any other hard object. The incise wounds or stab wounds
were caused by a sharp-bladed or sharp-edged instrument. Of the six stab wounds suffered by
LONGASA, stab wounds numbered 1 and 3 on LONGASAs chest caused the latters death.[13]
The testimony of LONGASAs mother was dispensed with after the State and the defense agreed
that Longasas family incurred P8,500 in funeral expenses.[14]
REGANDO interposed alibi and denial. He claimed that on 3 May 1994, between 7:30 and 8:00
p.m., he was having a conversation with Arthur Aquino at the premises of RUELs house. Someone
passed by the house and reported a slaying incident at Javier II Street. Curious, REGANDO and
Aquino went to the scene of the incident and there found LONGASA lying in a pool of his own
blood. REGANDO recognized LONGASA because the latter was a barber at REGANDOs
neighborhood. He believed that the victim was already dead, since the latter did not seem to be
breathing. When policemen arrived, REGANDO moved away from the scene; he did not want to
be asked about the incident, as he knew nothing about it. On 7 May 1994, he was arrested by
Malabon policemen after Edgar Jimenez identified him as one of the assailants. He opined that
Edgar implicated him in the crime because they had an altercation during a basketball game,
which altercation could have erupted into a fistfight had they not been pacified.[15]
Arthur Aquino, REGANDOs gangmate, corroborated the latters testimony and declared that it was
impossible for REGANDO to have taken part in the killing, since he was with REGANDO before
and after the incident. When they arrived at Javier II, they saw many people, none of whom were
known to him. He asked the people milling around LONGASAs body who the killer was, but no
one could tell him.[16]
RUEL, who was 16 years old at the time the crime in question was committed, also put up the
defense of alibi. According to him, when the incident was taking place he was at his grandmothers
house in Javier II changing clothes, for he had just taken a bath. He heard screams from outside of
the house reporting that a killing had occurred at the corner of Javier II Street. Out of curiosity, he
immediately went to the reported scene of the incident. There he saw a bloodied body lying on the
ground, which he later found to be LONGASAs cadaver. RUEL was not questioned by the
authorities during the investigation. However, on 7 May 1994, while he and co-accused
REGANDO were watching television at his grandmothers house, they were arrested by the police
on the basis of Edgars information that they were among LONGASAs assailants.[17]
EMERLITO also relied on alibi for his defense. He declared that at the time of the incident he was
at Javier II to borrow P500 from his mother. On his way to his mothers place, someone informed
him that his brother Fernando Santos, alias Dede, was involved in a fight at Liwayway Street. He
rushed to the scene of the reported fight. There, he found his brother being ganged up on by Edgar
Jimenez and another person. EMERLITO grabbed Edgar and boxed him, but the latter retaliated.
They exchanged punches until Edgar ran towards a nearby alley. EMERLITO gave chase but
failed to catch Edgar, as the latter jumped into a river. EMERLITO waited for Edgar to come up
for air. After ten to fifteen minutes, EMERLITO got impatient and went back to Liwayway Street.
After seeing no one in the area, he went to Javier II Street. Along the way he saw people running,
and then someone shouted: Mang Emer, iyong kapatid ninyo nakasaksak namatay (Mang Emer,
your brother stabbed and killed a man). Another person advised him not to proceed to the scene of
the incident and to go home instead. EMERLITO followed the advice. He did not take his brother
to the authorities because not one of his brothers was at home when he got there. Neither did he go
to the police to explain the incident, as he did not know much about it.[18]
Conrado Gungon attempted to bolster EMERLITOs account by claiming that at the time of the
incident, he saw Fernando Santos and a certain Rey chasing LONGASA at Javier II. He followed
the three to a corner near General Luna Street. There he saw Fernando and Rey stab LONGASA;
after which the assailants ran towards General Luna Street. The two attackers had no other
companion. Conrado went home after the incident.[19]
In its Joint Decision,[20] the trial court found Jimenezs testimony to be credible and supportive of
the theory of conspiracy among the accused. It found the following circumstances to be more than
sufficient to prove that the accused-appellants and their co-accused had common design to kill
LONGASA and were united in its execution: (1) their simultaneous acts and concerted effort in
surrounding the victim; (2) all of them carried weapons, which they used against the victim; (3)
they took turns in disabling the victim with blows administered with a piece of wood and bottles;
(4) the victims arms were restrained when the death blows were inflicted; (6) none of the accused-
appellants tried to dissuade their companions from delivering fatal wounds on the victim; as a
matter of fact, they continued attacking the victim until the latter was already down and gasping
for breath; and (7) the number of wounds inflicted on the victim was a mute testimony of the
vengeful fury and brutality of the deadly attack upon him. Conspiracy having been established, the
act of one was the act of all.
The trial court ruled against the presence of treachery, since LONGASA was engaged in a fight
with the accused before the fatal attack and was, therefore, sufficiently warned of the assault
against him. However, it appreciated against the accused the qualifying aggravating circumstance
of taking advantage of superior strength because of the superior number of the accused, most of
whom were armed with weapons; while the victim was alone, with his arms held behind him by
two of the assailants.
The trial court rejected the defense of alibi for failure of accused-appellants to prove that they
were so far away from the scene of the crime as to be physically impossible for them to be there
when the crime was committed.
The trial court thus ruled that the crime committed was murder and decreed; thus:
WHEREFORE, all considered, the Court finds all the three (3) accused GUILTY beyond
reasonable doubt of the crime of MURDER and sentences each of them as follows:
a) Accused REGANDO VILLONES y PASCASIO and EMERLITO N. SANTOS, there being no
aggravating and mitigating circumstance, to suffer the penalty of RECLUSION PERPETUA;
b) Accused RUEL N. SANTOS, appreciating the privileged mitigating circumstance of minority in
his favor, being 16 years old at the time of the commission of the offense, to suffer an
indeterminate penalty of TEN (10) YEARS of prision mayor as minimum, to SEVENTEEN (17)
YEARS of reclusion temporal as maximum.
Likewise, all the accused are hereby ordered to indemnify, jointly and severally, the heirs of
GERARDO LONGASA in the amount of P8,500.00 as actual damages, and the additional sum of
P50,000.00, as civil indemnity for the death of the said victim, and the costs of suit.
Accused-appellants REGANDO, RUEL, and EMERLITO seasonably appealed to us.[21]
In their Brief, accused-appellants REGANDO and EMERLITO, represented by the Public

Attorney's Office, contend that the trial court committed the following errors:
I
... IN GIVING FULL WEIGHT AND CREDENCE TO THE OTHERWISE
UNCORROBORATED, INCREDIBLE AND FABRICATED TESTIMONY OF PROSECUTION
WITNESS EDGARDO JIMENEZ.
II
IN FINDING ACCUSED-APPELLANT REGANDO VILLONES GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED.
III
IN FINDING THAT THERE EXISTS CONSPIRACY IN THE CASE AT BAR.
In his separate Brief, accused-appellant RUEL imputes upon the trial court the following errors:
I.
IN NOT HOLDING THAT EDGAR JIMENEZ IS NOT COMPETENT TO TESTIFY ON THE
PARTICIPATION OF RUEL SANTOS CONSIDERING HE WAS NOT AN EYEWITNESS AND
HIS TESTIMONY IS, THEREFORE, HEARSAY.
II
IN HOLDING THAT ACCUSED RUEL SANTOS WAS IN CONSPIRACY AMONG THE
OTHER ACCUSED IN THE KILLING OF GERARDO LONGASA.
III.
... IN DISREGARDING THE TESTIMONY OF EMERLITO SANTOS.
IV.
IN DISREGARDING THE TESTIMONY OF CONRADO GUNGON.
All accused-appellants attack the credibility of lone eyewitness Edgar Jimenez. REGANDO and
EMERLITO wonder why Edgar took a longer route through Javier II Street to get to Liwayway
Street instead of just crossing the bridge that separated Duhat from Liwayway Street, which was
shorter route. Another thing which they find illogical was Edgars failure to shout for help and to
do anything to save his friend LONGASA. As to Edgars testimony that he was mauled by the
accused, accused-appellants theorize that Edgar could have been a participant in the rumble,
which made him a biased and unreliable witness. Moreover, Edgar could not have witnessed the
crime, as he was then running away from the scene to escape further injuries. Additionally, no one
corroborated Edgars testimony; hence, it is self-serving.
RUEL claims that Edgar Jimenez committed inconsistencies on material points, especially on who
actually stabbed LONGASA and how many times he was so stabbed. Edgar was, likewise, unable
to make up his mind whether he was running away from the crime scene or staying at a safe
distance from the incident. RUEL finds illogical and incredible the story of Edgar that accused
attacked him when he was merely looking for LONGASA, and that while Edgar was originally the
target of the accuseds aggression, they inexplicably vented their ire on LONGASA and allowed
Edgar to witness everything and walk away untouched. RUEL also stresses that the prosecution
did not disprove EMERLITOs testimony that Edgar was in a river near Liwayway Street while the
incident was taking place; hence, he could not have witnessed the crime. Besides, Edgars
testimony was disproved by Gungon, who testified that Reynaldo and Fernando Santos were the
ones who stabbed LONGASA, and that the said assailants had no other companions.
Accused-appellants insist on the credibility of the testimony of the defense witnesses. They further
claim that they were able to explain their whereabouts during the perpetration of the offense, and
that they had other witnesses to corroborate their respective versions.
Finally, accused-appellants assert that there is no sufficient proof of conspiracy. The short interval
between the attack on Edgar and the attack on LONGASA precluded the existence of a
preconceived plan among the accused to so assault LONGASA. Additionally, if there was indeed
conspiracy among the accused, all should have stabbed LONGASA, not just that some of them hit
the victim with bottles or a piece of wood.
In the Consolidated Brief for the Appellee, the Office of the Solicitor General (OSG) maintains
that the alleged lapses in Edgar Jimenezs testimony were duly explained and the alleged
inconsistencies were too trivial to impair his straightforward account of the crime. His failure to
help his friend while the latter was under attack was understandable considering that the
aggressors had the strength of number. At any rate, the trial court found Edgar credible. It is well-
settled that a trial courts assessment of a witnesss testimony is entitled to great respect on appeal.
As to RUELs claim of lack of logic in the version of Edgar, the OSG argues that it is of judicial
knowledge that persons have been assaulted for no apparent reason whatsoever.[22]
The OSG considers Gungons testimony undeserving of consideration. Gungon failed to explain
why he gave his account of the crime only on 1 August 1995 or fifteen months after the incident in
question. His long unexplained silence makes one suspicious of his motives; hence his testimony
is unworthy of belief.[23]
Finally, the OSG agrees with the trial courts rejection of accused-appellants defense of alibi and
with the finding of conspiracy. It argues that there was no showing of physical impossibility for
the accused to be at the crime scene when the crime was committed; besides, they were positively
identified by Edgar Jimenez as among LONGASAs attackers. As to conspiracy, the same can
easily be deduced from the manner of the commission of the offense and from the concerted acts
of the accused to obtain a criminal objective.[24]
As often happens in criminal cases on appeal, we are asked to disregard the testimony of a
prosecution witness for being incredible, and to give full credence to those of the defense and
decree accused-appellants acquittal. Among the discrepant accounts of the same incident, we
choose to believe the one certified by the trial judge to be credible, in this case, the testimony of
Edgar Jimenez. The judge had the distinct advantage of having personally heard the testimonies of
Edgar and the witnesses for the defense, and observed their deportment and manner of testifying
during the trial. It is settled that the trial judges findings on the credibility of witnesses will not
generally be disturbed unless said findings are arbitrary, or facts and circumstances of weight and
influence have been overlooked, misunderstood, or misapplied by the trial judge which, if
considered, would have affected the result of the case.[25] None of the exceptions have been
shown to exist in the instant case.
Indeed, our perusal of the transcript of the testimony of Edgar Jimenez confirms his
trustworthiness. He told a consistent story throughout his two turns at the witness stand. He
corrected misimpressions by the trial judge and examining counsel, and he satisfactorily explained
the apparent lapses in his testimony. He was frank about his dark history as a drug user who was
once the subject of a criminal case in court. It must be noted that a criminal record does not
necessarily make one an incredible witness.[26] Edgars honesty in revealing his past without
hesitation bolsters his credibility.
The inconsistencies between Edgars testimony and sworn statement given to the police were
likewise adequately explained. In any case, a sworn statement or affidavit, being taken ex parte by
a person other than the witness, is almost always incomplete and often inaccurate, sometimes from
partial suggestion or for want of suggestions and inquiries. Omissions and misunderstandings by
the writer are not infrequent, particularly under circumstances of hurry and impatience. The
infirmity of affidavits as a species of evidence is a matter of judicial experience. As such, an
affidavit taken ex-parte is generally considered to be inferior to testimonies made in open court.
[27]
Furthermore, as the OSG correctly opined, the findings of medico-legal officer Dr. Ronaldo
Mendez served to corroborate Edgars testimony. LONGASAs injuries, recorded in Dr. Mendezs
report, reflected the severe beatings LONGASA suffered at the hands of the accused as narrated
by Edgar.
The bromidic defense of alibi cannot benefit accused-appellants. In the face of the positive
identification of the accused by Edgar, such defense is worth nothing.[28] Besides, accused-
appellants were unable to prove that it was physically impossible for them to be at the crime scene
at the time the crime was committed. On the contrary, REGANDO and RUEL admitted that in just
a short time they were able to get to the crime scene by walking. For his part, EMERLITO
acknowledged his involvement in a fight which preceded LONGASAs killing, and he conceded
that he was able to return to the crime scene, or near the crime scene, at or about the time of the
commission of the offense. The alibi which is sufficient to acquit an accused of a criminal charge
must be that which shows it was physically impossible for him to be at the crime scene at the time
of the commission of the crime.[29]
As to the trial courts finding of conspiracy among the accused, we find the same to be supported
by evidence. For conspiracy to exist, it is not required that there be an agreement for an
appreciable period prior to the occurrence. It is sufficient that at the time of the commission of the
offense, the accused had the same purpose and were united in its execution. The agreement to
commit a crime may be gleaned from the mode and manner of the commission of the offense or
inferred from the acts of the accused which point to a joint purpose or design, concerted action,
and community of intent.[30] In this case, the accused simultaneously attacked LONGASA, with
two of them holding the victims hands or arms. Some struck LONGASA with a piece of wood or
bottles and two others stabbed him. The attack continued until LONGASA fell dead. These acts
clearly point to a joint purpose to accomplish the desired end.
However, we do not share the assessment of the trial court that there was no treachery in this case
because the victim had engaged in a fight previous to the killing and was thus forewarned of an
attack against him. Treachery may still be appreciated even when the victim was forewarned of
danger to his person. What is decisive is that the execution of the attack made it impossible for the
victim to defend himself or to retaliate.[31] The overwhelming number of the accused, their use of
weapons against the unarmed victim, and the fact that the victims hands were held behind him
preclude the possibility of any defense by the victim.
The other qualifying circumstance of abuse of superior strength, which the trial court appreciated,
will no longer be taken against accused-appellants, for it is absorbed in treachery.[32]
The penalty for the murder is reclusion perpetua to death pursuant to Article 248 of the Revised
Penal Code as amended by R.A. No. 7659. There being no mitigating or aggravating circumstance
proved in favor of or against EMERLITO and REGANDO, the trial court correctly imposed the
penalty of reclusion perpetua.[33]
As to RUEL, who was only 16 years old when the offense in question was committed, the trial
court correctly appreciated in his favor the privileged mitigating circumstance of minority.
Pursuant to paragraph 2 of Article 68 of the Revised Penal Code, the penalty next lower to that
prescribed by law shall be imposed; in this case the penalty shall be reclusion temporal.[34]
Again, there being no proof of any modifying circumstance, said penalty shall be imposed in its
medium period.[35] Since RUEL is entitled to the benefits of the Indeterminate Sentence Law, he
shall be sentenced to suffer an indeterminate penalty whose minimum shall be within the range of
prision mayor and whose maximum shall be within the range of reclusion temporal. The penalty
imposed upon him by the trial court, i.e., ten years of prision mayor as minimum to seventeen
years of reclusion temporal as maximum, is therefore correct.
The awards of P50,000 as indemnity for the death of LONGASA and of actual damages of P8,500
are in conformity with current case law and with the agreement of the parties, respectively.
WHEREFORE, we DISMISS the appeal and AFFIRM the challenged Joint Decision of 23
November 1995 of Branch 170 of the Regional Trial Court of Malabon, Metro Manila, in Criminal
Cases Nos. 14943-MN and 15506-MN convicting accused-appellants REGANDO P. VILLONES,
EMERLITO N. SANTOS, and RUEL L. SANTOS of the crime of murder and sentencing the first
two accused to suffer the penalty of reclusion perpetua and the third accused, to an indeterminate
penalty of ten (10) years of prision mayor as minimum to seventeen (17) years of reclusion
temporal as maximum; and ordering all accused-appellants to pay the heirs of the victim
GERARDO LONGASA P50,000 as death indemnity and P8,500 as actual damages.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, Vitug, Panganiban and Quisumbing JJ., concur.
[1] His surname is alternately spelled Villones and Villonez in the various issuances by the lower
court and the transcripts of stenographic notes but Villonez in the Information in Criminal Case
No. 14943-MN (Original Record [OR], Criminal Case No. 14943-MN, 1) and the Joint Decision
(id., 331-341). However, he signed his name as R. Billones in his motion for reinvestigation (id.,
7-8) and notice of appeal (id., 347).
[2] He is referred to as Ruel in all the pleadings; however, in his certificate of live birth (id., 117),
his first name is spelled Rowell.
[3] OR, Criminal Case No. 14943-MN, 331-341, Rollo, 21-31. Per Judge Benjamin T. Antonio.
Henceforth, all references to the original record are to that in Criminal Case No. 14943-MN,
unless otherwise specified.
[4] Id., 1.
[5] OR, 25.
[6] Id., Criminal Case No. 15506, 1.
[7] Or, 7.
[8] Id., 16.
[9] Witnesses for the defense, however, stated that Dede Santos was the alias of Fernando Santos
(TSN, 18 July 1995, 3; TSN, 1 August 1995, 4).
[10] TSN, 8 November 1994, 2-13; TSN, 10 November 1994, 2-5, 9-15.
[11] Id., 5-17.
[12] OR, 70.
[13] TSN, 24 November 1994, 5-12.
[14] Id., 12-13.
[15] TSN, 6 February 1995, 2-15.
[16] TSN, 9 February 1995, 2-7.
[17] TSN, 13 February 1995, 3-15.
[18] TSN, 18 July 1995, 2-10.
[19] TSN, 1 August 1995, 2-5.
[20] Supra note 3.
[21] OR, 346, 347.
[22] Citing People v. Ilaoa, 233 SCRA 231 [1994].
[23] Citing People v. Ompad, 233 SCRA 62 [1994].
[24] Citing People v. Silong, 232 SCRA 487 [1994].
[25] People v. Leoterio, 264 SCRA 608, 617 [1996]; People v. Balamban, 264 SCRA 619, 629
[1996].
[26] See Sec. 20, par. 2, Rule 130, Rules of Court.
[27] People v. Ong Co, 245 SCRA 733, 742-743 [1995]; People v. Bayani, 262 SCRA 660, 680
[1996].
[28] People v. Alshaika, 261 SCRA 637, 646 [1996]; People v. De Guzman, 265 SCRA 228, 245
[1996].
[29] People v. Quijada, 259 SCRA 191, 214 [1996]; People v. Balamban, supra note 25, at 631.
[30] People v. Sequio, 264 SCRA 79, 101-102 [1996]; People v. Tabag, 268 SCRA 115, 127
[1997].
[31] People v. Landicho, 258 SCRA 1, 28 [1996]; People vs. Tobias, 267 SCRA 229, 255-256
[1997].
[32] People v. De Leon, 248 SCRA 609, 624 [1995]; People v. Landicho, supra note 31, at 29.
[33] Art. 63, par. 2, Revised Penal Code.
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SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 169246 January 26, 2007
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NICOLAS GUZMAN y BOCBOSILA, Accused-Appellant.
DECISION
CHICO-NAZARIO, J.:
Man is subject to innumerable pains and sorrows by the very condition of humanity, and yet, as if
nature had not sown evils enough in life, we are adding grief to grief and aggravating the common
calamity by our cruel treatment of one another. Joseph Addison.
The passage depicts the tragic fate of the deceased victim in the case at bar. His ultimate dream
was to become a pilot so that he would have enough money to shoulder the schooling and
education expenses of his younger siblings. Sadly, however, this dream will never become a
reality as his young life was brutally snuffed out by certain violent individuals. He was a minor at
the time of his death. Now his family is seeking justice for his untimely and senseless killing.
For review is the Decision of the Court of Appeals in CA-G.R. C.R.-H.C. No. 00095, dated 28
February 2005,1 affirming with modification the Decision of the Regional Trial Court (RTC) of
Quezon City, Branch 69, in Criminal Case No. Q-99-88737, dated 12 November 2001,2 finding
accused-appellant Nicolas Guzman y Bocbosila guilty beyond reasonable doubt of the crime of
murder, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the
heirs of Michael Balber (Michael) the amount of P35,470.00 as actual damages, P50,000.00 as
civil indemnity, and P50,000.00 as moral damages.
On 29 November 1999, appellant was charged in an Information3 with Murder allegedly
That on or about the 25th day of November 1999 in Quezon City, Philippines, the above-named
accused, conspiring and confederating with two other persons, whose true names/identities and
whereabouts are still unknown, and mutually helping one another with intent to kill, with
treachery and evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and employ personal violence upon the person of one MICHAEL ANGELO
BALBER Y CASTILLON, a minor, 17 years of age, by then and there stabbing him on the trunk
with the use of a bladed weapon, thereby inflicting upon him serious and grave wound which was
the direct and immediate cause of his untimely death to the damage and prejudice of the heirs of
Michael Angelo Balber y Castillon.
When arraigned on 21 January 2000,4 appellant pleaded "Not Guilty" to the charge therein. Trial
on the merits thereafter ensued.
In building its case against appellant, the prosecution relied on the testimonies of its witnesses,
namely: Ronald Santiago (Ronald), Edgardo Bauto (Edgardo), Danilo Balber (Danilo), Police
Inspector Alberto Malaza (Inspector Malaza), SPO3 Samuel Quinto (SPO3 Quinto), and Dr.
Francisco Supe, Jr. (Dr. Supe). Their testimonies are summarized as follows:
Ronald is a jeepney driver and resident of Barangay Commonwealth, Quezon City. He testified
that on 25 November 1999, at about 9:00 in the evening, he stopped by and ate at a carinderia
located at the corner of Sto. Nino Street and Mactan Street, Brgy. Commonwealth, Quezon City.
After eating, he sat on a bench just beside the carinderia and rested. He noticed appellant and two
other persons having a drinking spree in a nearby grocery store. He also saw Michael walking
towards the direction of the same grocery store. When Michael was passing in front of the grocery
store, appellant and his two companions suddenly approached and surrounded Michael. Appellant
positioned himself at the back of Michael while his two companions stood in front of Michael.
Suddenly, they grabbed the shoulders of Michael and overpowered the latter. One of appellants
companions, whom he described as a male with long hair, drew out a knife and repeatedly stabbed
Michael at the stomach. Afterwards, the appellants other companion, whom he described as a
male with flat top hair, took the knife from the companion with long hair, and also stabbed
Michael at the stomach. Later, appellant went in front of Michael, took the knife from the
companion with flat top hair, and likewise stabbed Michael at the stomach. Appellant also kicked
Michael when the latter was already lying on the ground. He witnessed this stabbing incident at a
distance of five arms length.5
Afraid and confused, he immediately went home. The next day, however, he went to the house of
Michaels family and narrated the incident to Michaels father, Danilo. Subsequently, he was
accompanied by Danilo to the Batasan Hills Police Station 6 where he gave a statement about the
incident.6
Edgardo Bauto (Edgardo) is also a tricycle driver and resident of Brgy. Commonwealth, Quezon
City. He narrated that on 25 November 1999, at around 9:00 in the evening, he was standing at the
corner of Sto. Nino Street and Mactan Street, Brgy. Commonwealth, Quezon City, when he heard
a female voice shouting "Sinasaksak!" When he glanced at the direction of the said shouts, he saw,
at a distance of about five arms length, appellant and the latters two companions taking turns in
stabbing Michael. One of the appellants companions, whom he described as a toothless male with
a long hair, was the first one to stab Michael. Afterwards, the appellants other companion, whom
he described as a male with flat top hair, took the knife from the toothless male with a long hair
and stabbed Michael. Subsequently, appellant also took the knife from his companion with flat top
hair and stabbed Michael too.7
Thereafter, he immediately ran and proceeded to the house of Michaels family and informed
Michaels parents about the incident. Michaels parents rushed to the crime scene and took
Michael to a hospital. The next day, he was accompanied by Danilo and a certain Ramiro Alfaro to
Batasan Hills Police Station 6 where he gave a statement about the incident.8
Danilo, Michaels father, testified that on 25 November 1999, at about 9:00 in the evening, he was
walking on his way home along the corner of Sto. Nino Street and Mactan Street, Brgy.
Commonwealth, Quezon City, when he saw Michael lying along Sto. Nino Street. He also saw
appellant and the latters two male companions near Michaels body. When he was about to
approach them, they immediately ran away. He chased and threw stones at them. Appellant and his
two companions proceeded to the formers house and locked the door. He tried to follow them all
the way to the house but appellants relatives blocked his way to the door and told him to leave.
Thereafter, he went back to Michael and took the latter to Fairview Hospital.9 He was later
informed by the doctors that Michael was already dead.
The next day, he went to Batasan Hills Police Station 6 and gave a statement about the incident. In
an effort to settle the instant case, appellants wife and daughter told Danilo that they would sell a
bus which they owned and would turn over to him the proceeds thereof. He also stated that
Michael wanted to become a pilot so that, as the eldest of the children, he would be the one to
shoulder the education of his siblings.10
Inspector Malaza is a member of the police force assigned at Police Community Precinct No. 1,
Batasan Hills, Quezon City. He testified that on 25 November 1999, at about 9:00 in the evening,
he was on his way home on board his owner type jeep. Upon reaching the corner of Sto. Nino
Street and Mactan Street, Brgy. Commonwealth, Quezon City, he noticed a commotion nearby. He
slowed down his vehicle and saw, at a distance of five to ten meters, appellant stabbing and
kicking Michael. He also noticed that the appellants two companions were armed with bladed
weapons. He alighted from his vehicle and approached appellant and his two companions. After
introducing himself as a police officer, appellant and his two companions scampered away. He ran
after them but caught only appellant. The two other companions of the appellant successfully
escaped. Thereafter, he handcuffed appellant and brought him to Batasan Hills Police Station 6.
He turned him over to a police investigator therein and executed an affidavit of arrest.11
SPO3 Quinto is a police investigator at the Batasan Hills Police Station 6. He was the one who
investigated the incident. After the incident was reported to his station on 26 November 1999, he
immediately went to the crime scene upon the advice of the desk officer. Since Michael was
already brought to Fairview Hospital at that time, he proceeded thereto. Upon arriving at the
Fairview Hospital, he was informed that Michael was already dead. He then went back to the
station and took the statements of the prosecution witnesses.12
Dr. Supe is a medico-legal officer of the PNP Crime Laboratory, Camp Crame, Quezon City. He
conducted the post mortem examination on Michaels body. His testimony evolved on the matters
stated in the Medico-Legal Report No. M-3112-99,13 viz:
"POSTMORTEM FINDINGS:
Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity at the
dependent portions of the body. Conjunctivae are pale. Lips and nail beds are cyanotic. Needle
puncture mark is noted on the dorsum of the right hand. There is fungal infection covering the
entire groin and extending to the buttocks.
"HEAD AND NECK:
1.) Abrasion, left superior orbital region, measuring 0.2 x 0.7 cm, 3.7 cm, from the anterior
midline.
2.) Lacerated wound, left lateral orbital region, measuring 0.5 x 0.8 cm, 5 cm from the anterior
midline.
3.) Abrasion, right inferior orbital region, measuring 0.6 x 2 cm, 1 cm from the anterior midline.
"CHEST AND ABDOMEN:
1.) Abrasion, left inferior or mammary region, measuring 0.5 x 8.5 cm. along the anterior midline.
2.) Stab wound, thru and thru, point of entry, left coastal region, measuring 1 x 4 cm, 8 cm from
the anterior midline, directed posteriorwards and medialwards making a point of exit at the left
inferior mammary region, measuring 0.7 x 2.5 cm, 5 cm from the anterior midline, superficial.
3.) Stab wound, left subcostal region, measuring 0.7 x 2.3 cm, 14.2 cm from the anterior midline,
9 cm deep, directed posteriorwards, slightly upwards and medialwards, lacerating the mesentery,
small intestine, left hemidiaphragm.
4.) Lacerated wound, thru and thru, point of entry, left inferior clavicular region, measuring 2 x 7
cm, 4.5 cm from the posterior midline, extending to the right inferior clavicular region and making
a point of exit thereat, measuring 1 x 3 cm, superficial.
5.) Two and a half liters of blood and blood clots were evacuated from the abdominal cavity.
6.) The stomach is 250 ml full of billous fluid.
"Extremity:
1.) Lacerated wound, distal third of the right arm, measuring 0.4 x 1 cm, 2.5 cm lateral to its
anterior midline.
"CONCLUSION:
Cause of death is hemorrhage and shock secondary to multiple stab wounds of the trunk."14
On the other hand, the defense presented the testimonies of appellant and Antonio Sulficiencia
(Antonio) to disprove the foregoing charges.
Appellant testified that on 25 November 1999, at about 9:00 in the evening, he was inside his store
located at No. 886 Mactan St. Brgy. Commonwealth, Quezon City, when he heard shouts outside.
He peeped through the window of his store and saw Danilo and Ronald pulling out a certain Jesus
de Guzman (Jesus) from the latters tricycle. Danilo and Ronald punched Jesus but the latter
retaliated. Thereafter, a rumble ensued. At the height of the brawl, he shouted Hoy! ano ba yan?
Tama na yan! Itigil na ninyo yan! Awatin na ninyo yan." Minutes later, Michael passed by his store
and inquired as to what was happening. He told Michael "Yung tatay mo at si Santiago (Ronald)
pinagtulungan si Rommel." Michael rushed to Danilo and pacified the latter. Edgardo, one of the
participants therein, threw stones at Michael. At this point, a certain Lemuel Grans Querubin
(Lemuel) arrived and tried to join the fracas. Michael, however, blocked Lemuels way. The two
wrestled and both of them fell to the ground. Moments later, Lemuel stood up. Lemuel was
holding a knife and his hands were bloodied. Michael, on the other hand, was still lying on the
ground. Lemuel then chased Danilo and Ronald but the two were able to escape. Afterwards,
Danilo, Ronald and five other persons returned to the scene. Danilo was carrying a big bolo while
the others were armed with stones and lead pipe. Lemuel and Jesus ran towards the direction of
Sto. Nino in order to escape.15
Appellant went outside his house to observe the situation. Five minutes later, the group of Danilo,
together with two policemen, proceeded to appellants house. The policemen forcibly entered
appellants house and pushed the latter against the wall. They inquired as to the whereabouts of
Lemuel and Jesus, who happened to be appellants bus conductor and driver, respectively. When
they could not find the two, the policemen invited him to the police station. Appellant told them
"Bakit ninyo ako dadalhin? wala naman akong kinalaman diyan." From then on, the policemen
held appellant in custody.16
Antonio was a former bus driver of appellant and a resident of Paranaque City. He narrated that on
25 November 1999, at about 9:00 in the evening, he parked a bus owned by appellants cousin
named Juanito Palmares (Juanito) just beside the appellants store. He went to appellants store
and conversed with the latter who was inside the same store. Thereafter, he saw a rumble nearby.
He ran and hid inside the parked bus while appellant stayed inside his store. Later, the participants
of the rumble began to stone them. He alighted from the bus and went inside Juanitos house. He
noticed that appellant was still inside the store. Subsequently, he saw Lemuel running and carrying
a knife. He also heard Lemuel saying "Tapos na ang laban, manahimik na kayo." Thereupon, he
saw appellant being apprehended by policemen in civilian clothes.17
On 12 November 2001, the RTC rendered its Decision convicting appellant of murder.18 It
sustained the "clear, direct and positive" testimony of the prosecution witnesses who all declared
that they saw appellant stab Michael. It found no ill-motive on the part of the prosecution
witnesses in testifying against appellant. It also ruled that there was treachery in the killing of
Michael since the latter was unarmed, unsuspecting and very young at the time of the attack. In
ending, the RTC held:
WHEREFORE, judgment is rendered finding accused Nicolas Guzman Y Bocbosila guilty beyond
reasonable doubt of the crime of murder qualified by treachery. Accordingly, he is sentenced to
suffer the penalty of reclusion perpetua to death and further ordered to pay the heirs of the late
Michael Angelo Balber the sum of Thirty-Five Thousand Four hundred Seventy Pesos
(P35,470.00), Philippine Currency, as actual damages, excluding the Six Thousand Pesos
(P6,000.00) Bagbag Cemetery as there was no evidence to justify the award of the same; Fifty
Thousand Pesos (P50,000.00), as moral damages and the additional civil indemnity of Fifty
Thousand Pesos (P50,000.00).
Appellant filed a Notice of Appeal on 26 November 2001.19 On 28 February 2005, the Court
Appeals promulgated its Decision affirming with modification the RTC Decision.20 The
modification pertains only to the penalty imposed by the RTC, thus:
WHEREFORE, the Decision of the Regional Trial Court of Quezon City, Branch 89, in Criminal
Case No. Q-99-88737 is hereby AFFIRMED in all respects except that the sentence be
RECLUSION PERPETUA only.
On automatic review before us, appellant assigned the following errors of the lower court:
I.
THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE [DOUBT] OF THE CRIME OF MURDER DESPITE THE
PALPABLE DISCREPANCIES AND INCONSISTENCIES IN THE TESTIMONIES OF THE
PROSECUTION WITNESSES.
II.
THE LOWER COURT ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE
EVIDENCE PRESENTED BY THE DEFENSE.
III.
THE LOWER COURT ERRED IN NOT ALLOWING THE ACCUSED-APPELLANT TO
PRODUCE SUBSTITUTE OR ADDITIONAL WITNESSES FOR HIS DEFENSE.
IV.
ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT CAN BE HELD LIABLE
FOR THE DEATH OF THE VICTIM, THE LOWER COURT ERRED IN APPRECIATING THE
QUALIFYING CIRCUMSTANCE OF TREACHERY.21
Anent the first issue, appellant claims that the testimonies of the prosecution witnesses should not
be given any weight as the same are filled with discrepancies and inconsistencies. According to
him, Ronald and Edgardo testified that appellant and his two companions used only one knife in
stabbing Michael. Inspector Malaza, however, declared that appellant and his two companions
were armed with separate knives during the stabbing incident. He also avers that Inspector Malaza
gave contradicting versions of how the latter apprehended him after the incident. Further, Edgardo
testified that after the incident, he immediately went to the house of Michael and informed Danilo
of what he witnessed. Danilo, however, declared that while he was on his way home, he saw
Michael lying at the corner of Sto. Nino St. and Mactan St., and, that the malefactors were running
away.
Appellants contention is bereft of merit.
A witness testifying about the same nerve-wracking incident can hardly be expected to be correct
in every detail and consistent with other witnesses in every respect, considering the inevitability of
differences in perception, recollection, viewpoint, or impressions, as well as in their physical,
mental, emotional, and psychological states at the time of the reception and recall of such
impressions.22 Thus, we have followed the rule in accord with human nature and experience that
honest inconsistencies on minor and trivial matters serve to strengthen, rather than destroy the
credibility of a witness, especially of witnesses to crimes shocking to conscience and numbing to
senses.23
The inconsistencies cited by appellant refer to minor and unimportant details which do not
adversely affect the credibility of the prosecution witnesses. Although the testimony of Ronald and
Edgardo as to the number of knives used in the stabbing incident differs with that of Inspector
Malaza, all of them declared under oath during the trial that appellant stabbed Michael.
Thus, as aptly stated by the Court of Appeals, such inconsistency should not be considered as a
"fatal error," since what is important and decisive is that they had seen appellant stab Michael and
that they testified on the fact during the trial.
Besides, their testimonies on material and relevant points are substantially consistent with each
other. They testified that three persons, among whom was the appellant, had stabbed Michael.
Their descriptions of the faces, physical attributes, and respective positions of appellant and his
two companions during the attack are compatible. They also stated that appellant was the last
person who stabbed Michael.
As regards the alleged inconsistent testimony of Inspector Malaza as to how the latter
apprehended the appellant, it should be borne in mind that the weight of the eyewitness account
should be on the fact that the witness saw the accused commit the crime and was positive of the
latters physical identification.24 Inspector Malaza had seen appellant stab Michael, and, in fact,
apprehended him right after the incident. Hence, the details on the manner by which Inspector
Malaza apprehended the appellant would be immaterial and irrelevant.
Appellant asserts that the testimony of Danilo runs counter to the testimony of the other
prosecution witnesses. Even if we were to disregard as evidence for the prosecution the testimony
of Danilo, the categorical and credible testimonies of the other prosecution witnesses are sufficient
to support the finding of guilt on the part of appellant. It should be emphasized that the testimony
of one eyewitness would be enough to support a conviction provided it is positive, credible, clear
and straightforward.25
Apropos the second issue, appellant denied any liability and invoked alibi. He argued that he was
inside his store when the stabbing incident occurred, and, that it was Lemuel who stabbed
Michael. He also presented Antonio to corroborate his testimony.
For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the
crime was committed. He must likewise prove that it is physically impossible for him to be
present at the crime scene or its immediate vicinity at the time of its commission.26 If appellant
was, as he claimed, inside his store at the time of the incident, then it was not physically
impossible for him to be at the crime scene or in its immediate vicinity. His store is located just
beside Mactan Street,27 and that he witnessed the incident at a distance of merely five arms
length from his store.28 Therefore, his defense of alibi must fail.
Antonio testified that he and appellant, who was inside his store, were having a conversation when
the incident occurred. A perusal of the records, however, shows that appellant did not mention
anything about such conversation. In fact, appellant did not even mention the name of Antonio in
his entire testimony. Given the foregoing, the testimony of Antonio cannot be considered as
credible.
In arguing the third issue, appellant avers that his constitutional rights to produce evidence on his
behalf and to due process were violated when the trial court denied the motion of his counsel to
present substitute witnesses.
In the Pre-Trial Order of the RTC dated 29 February 2000, the defense named only four witnesses,
to wit: Antonio, Lizardo Dedase, Eduardo Bidia, and accused himself.29 In the same order, the
RTC stated the following:
All parties are informed that witnesses and documents which were not mentioned in this pre-trial
order shall not be entertained during the trial on the merits.30
During the trial, only appellant and Antonio were able to testify. When the two other witnesses in
the pre-trial order, namely, Lizardo Dedase and Eduardo Bidia, failed to appear and testify in court
several times, the defense counsel moved to substitute them explaining that they were hesitant to
testify, and, that one of them went home to his province.31
The RTC was correct in denying the defense counsels motion for substitution of witnesses since
Section 4, Rule 118 of the Revised Rules on Criminal Procedure mandates that the matters agreed
upon in the pre-trial conference and as stated in the pre-trial order shall bind the parties, to wit:
SEC. 4. Pre-trial order. After the pre-trial conference, the court shall issue an order reciting the
actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the
trial to matters not disposed of, and control the course of the action during the trial, unless
modified by the court to prevent manifest injustice (Italics supplied).
The pre-trial order of the RTC dated 29 February 2000 clearly shows that the defense named only
four witnesses. The parties were also informed therein that witnesses who were not mentioned in
the pre-trial order will not be entertained during the trial on the merits. Thus, pursuant to the afore-
stated provision and its purpose of preventing undue delay in the disposition of criminal cases and
ensuring fair trial, the denial of the defense counsels motion for substitution of witnesses is
justified. Moreover, if appellants motion for substitution of witnesses is given due course, it will
amount to an unreasonable disregard of solemn agreements submitted to and approved by the
court of justice and would make a mockery of the judicial process.
This is not to say, however, that such provision is absolute. It can be relaxed in the greater interest
of justice. Nevertheless, the exception does not apply in favor of appellant as the RTC had
observed that his motion for substitution of witnesses appears to be a "fishing expedition" of
evidence which is clearly unfair to the case of the prosecution.32 Moreover, as aptly stated by the
Solicitor General, if the two other witnesses of appellant were indeed afraid or hesitant to testify,
he should have moved the RTC to subpoena the said witnesses to testify in court33 pursuant to his
constitutional right to compulsory process to secure the attendance of his witnesses.34
Unfortunately, appellant did not avail himself of this remedy.
As to the fourth issue, appellant contends that even if he were held liable for the death of Michael,
there was no treachery which will qualify the killing as murder. According to him, there is no
evidence to show that appellant and his two companions had deliberately and consciously adopted
their mode of attack to ensure its execution without risk to themselves. The stabbing incident
occurred in a place that was properly lighted. There were many people in the area then walking in
different directions. He claims that if he and his two companions wanted to ensure that no risk
would come to them, then they could have chosen another time and place to attack Michael.
Treachery is a sudden and unexpected attack under the circumstances that renders the victim
unable and unprepared to defend himself by reason of the suddenness and severity of the attack.35
It is an aggravating circumstance that qualifies the killing of a person to murder. Article 14,
paragraph (16) of the Revised Penal Code states the concept and essential elements of treachery as
an aggravating circumstance, thus:
ART. 14. The following are aggravating circumstances:
xxxx
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make.
As can be gleaned from the foregoing, two essential elements/conditions are required in order that
treachery may be appreciated: (1) The employment of means, methods or manner of execution that
would ensure the offenders safety from any retaliatory act on the part of the offended party, who
has, thus no opportunity for self-defense or retaliation; (2) deliberate or conscious choice of
means, methods or manner of execution. Further, it must always be alleged in the information and
proved in trial in order that it may be validly considered.36
In the instant case, treachery was alleged in the Information against appellant.37 Moreover, all the
essential elements/conditions of treachery were established and proven during the trial.
After attending a worship service at the Iglesia ni Kristo church in his barangay, Michael
proceeded home. While Michael was casually walking along the corner of Sto. Nino Street and
Mactan Street, appellant and his two companions, who were drinking nearby, suddenly
approached and surrounded Michael. Appellant positioned himself at the back of Michael while
his two companions stood in front of Michael. In an instant, they grabbed the shoulders of Michael
and overpowered the latter. One of the appellants companions, whom the prosecution witnesses
described as a male with long hair, drew out a knife and repeatedly stabbed Michael on the
stomach. Unsatisfied, the appellants other companion, whom the prosecution witnesses described
as a male with flat top hair, took the knife and stabbed Michael on the stomach. As the finale,
appellant went in front of Michael, took the knife and also stabbed Michael on the stomach. When
Michael fell on the ground, appellant kicked him at the body. Upon noticing that the bloodied
Michael was no longer moving, appellant and his two companions fled the scene.
As viewed from the foregoing, the suddenness and unexpectedness of the attack of appellant and
his two companions rendered Michael defenseless, vulnerable and without means of escape. It
appears that Michael was unarmed and alone at the time of the attack. Further, he was merely
seventeen years of age then.38 In such a helpless situation, it was absolutely impossible for
Michael to escape or to defend himself against the assault of appellant and his two companions.
Being young and weak, Michael is certainly no match against adult persons like appellant and his
two companions. Michael was also outnumbered since he had three assailants, and, was unarmed
when he was stabbed to death. Appellant and his two companions took advantage of their size,
number, and weapon in killing Michael. They also deliberately adopted means and methods in
exacting the cruel death of Michael by first surrounding him, then grabbing his shoulders and
overpowering him. Afterwards, each of them repeatedly stabbed Michael with a knife at the
stomach until the latter fell lifeless to the ground. The stab wounds sustained by Michael proved to
be fatal as they severely damaged the latters large intestine.39
The fact that the place where the incident occurred was lighted and many people were walking
then in different directions does not negate treachery. It should be made clear that the essence of
treachery is the sudden and unexpected attack on an unsuspecting victim without the slightest
provocation on his part.40 This is even more true if the assailant is an adult and the victim is a
minor. Minor children, who by reason of their tender years, cannot be expected to put up a
defense. Thus, when an adult person illegally attacks a minor, treachery exists.41 As we earlier
found, Michael was peacefully walking and not provoking anyone to a fight when he was stabbed
to death by appellant and his two companions. Further, Michael was a minor at the time of his
death while appellant and his two companions were adult persons.
With regard to the allegation in the Information that the killing of Michael was attended by an
aggravating circumstance of evident premeditation, the RTC and the Court of Appeals were
correct in disregarding the same against appellant. The essence of evident premeditation as an
aggravating circumstance is that the execution of the criminal act was preceded by cool thought
and reflection upon the resolution to carry out the criminal intent during a space of time sufficient
to arrive at a calm judgment.42 It implies a deliberate planning of the crime before executing it. It
must also be shown how and when the plan to kill was hatched or what time elapsed before it was
carried out.43 Further, there must be proof that the accused meditated and reflected on his
intention between the time when the crime was conceived by him and the time it was actually
perpetrated.44 In the case at bar, there is no evidence to show that appellant and his two
companions had previously planned and reflected in killing Michael. When appellant and his two
companions saw Michael on that fateful night, they immediately pounced on him. The thought of
killing Michael came into the minds of appellant and his two companions only when they saw
Michael walking on the road. Indeed, the killing of Michael was sudden and unplanned.
On another point, we agree with the penalty imposed by the Court of Appeals. Article 248 of the
Revised Penal Code states that murder is punishable by reclusion perpetua to death. Article 63 of
the same Code provides that if the penalty is composed of two indivisible penalties, as in the
instant case, and there are no aggravating or mitigating circumstances, the lesser penalty shall be
applied. Since there is no mitigating or aggravating circumstance in the present case, and,
treachery cannot be considered as an aggravating circumstance as it was already taken as a
qualifying circumstance, the lesser penalty of reclusion perpetua should be imposed. As regards
the damages awarded by the Court of Appeals, we rule that the sum of P35,470.00 as actual
damages should be reduced to P25,670.00 since the receipts on record amounts only to
P25,670.00.45 It is well-settled that only expenses supported by receipts will be allowed for actual
damages.46 Furthermore, exemplary damages should also be awarded to the heirs of Michael
since the qualifying circumstance of treachery was firmly established by the prosecution.47 If a
crime is committed with an aggravating circumstance, either qualifying or generic, an award of
P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code.48 This
kind of damage is intended to serve as a deterrent to serious wrongdoings, and as a vindication of
undue sufferings and wanton invasion of the rights of an injured person or punishment for those
guilty of outrageous conduct.49lawphil.net
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. C.R.-H.C. No. 00095 dated 28
February 2005 is hereby AFFIRMED with MODIFICATIONS. Appellant is hereby found guilty
beyond reasonable doubt of the crime of murder, for which, he is accordingly sentenced to suffer
the penalty of reclusion perpetua. Appellant is further ordered to pay the heirs of Michael
P25,670.00 as actual damages; P50,000.00 as moral damages; P50,000.00 as civil indemnity for
Michaels death; and P25,000.00 as exemplary damages.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
Associate Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice ROMEO J. CALLEJO, SR.
Asscociate Justice
ATT E S TAT I O N
Associate Justice
Chairperson, Third Division
C E RT I F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
Footnotes
1 Penned by Associate Justice Jose Catral Mendoza with Associate Justices Romeo A. Brawner
and Edgardo P. Cruz, concurring; rollo, pp. 3-15.
2 Penned by Judge Elsa I. De Guzman; CA rollo, pp. 29-40.
3 CA rollo, p. 13.
4 Records, pp. 14-15.
5 TSN, 3 August 2000, pp. 2-11.
6 Id. at 8-11.
7 TSN, 15 August 2000, pp. 2-4.
8 Id. at 4-6.
9 TSN, 21 November 2000, pp. 2-7.
10 Id. at 8-16.
11 TSN, 4 December 2000, pp. 17-23.
12 TSN, 12 February 2001, pp. 2-5.
13 TSN, 14 February 2001, pp. 2-16.
14 Records, pp. 172-172-A.
15 TSN, 28 May 2001, pp. 2-15.
16 Id. at 15-20.
17 Id. at 2-12.
18 Supra note 2 at 39.
19 Records, p. 161.
20 Supra note 1 at 14.
21 CA rollo, pp. 63-64.
22 People v. Pateo, G.R. No. 156786, 3 June 2004, 430 SCRA 609, 615.
23 People v. Alcantara, G.R. No. 157669, 14 April 2004, 427 SCRA 673, 681-682.
24 People v. Alicnas, G.R. No. 142855, 17 March 2004, 425 SCRA 627, 641.
25 People v. Jubail, G.R. No. 143718, 19 May 2004, 428 SCRA 478, 495.
26 People v. Abes, G.R. No. 138937, 20 January 2004, 420 SCRA 259, 274.
27 TSN, 28 May 2001, p. 7.
28 Id. at 8.
29 Records, pp. 18-19.
30 Id.
31 TSN, 29 September 2001, p. 4.
32 Supra note 29.
33 CA rollo, p. 110.
34 Article III, Section 14(2) of the 1987 Constitution.
35 People v. Santos, G.R. No. 127492, 16 January 2004, 420 SCRA 37, 49.
36 Rule 110, Sections 8 and 9 of the Revised Rules on Criminal Procedure.
37 Supra note 3.
38 Records, p. 164 (Exh. C).
39 Supra notes 13 and 14.
40 People v. Fallorina, G.R. No. 137347, 4 March 2004, 424 SCRA 655, 674.
41 Id.
42 People v. Tagana, G.R. No. 133027, 4 March 2004, 424 SCRA 620, 643.
43 People v. Penones, G.R. No. 71153, 16 August 1991, 200 SCRA 624, 635.
44 People v. Lacao, No. L-32078, 30 September 1974, 60 SCRA 89, 95.
45 Records, pp. 165-A (Exh. E) and 166 (Exh. F).
46 People v. Medina, G.R. No. 155256, 30 July 2004, 435 SCRA 610, 623.
47 People v. Manambay, G.R. No. 130684, 5 February 2004, 422 SCRA 73, 90.
48 People v. Simon, G.R. No. 130531, 27 May 2004, 429 SCRA 330, 356.
49 People v. Orilla, GR. Nos. 148939-40, 13 February 2004, 422 SCRA 620, 643.
Ignominy- a circumstance pertaining to the moral order, which adds disgrace and obloquy to
the material injury caused by the crime. This aggravating circumstance is applicable when
the crime committed is against chastity. (Reyes, The Revised Penal Code, Book One)
People vs. Torrefiel
Facts:
December 17, 1942, 5:00 p.m. Torrefiel and Ormeo were on their way to the USSAFE
headquarters in the mountains. They passed by Eady s residence and talked to him at the balcony
to ask for khakis.
Eady had none except what he had on.
Ceferina Cordero also came to the balcony and inquired about their mission. She scolded Torrefiel
and Ormeo because all their belongings have been looted by USSAFE soldiers. Torrefiel
threatened her with slapping; brought out revolver. Eady and Cordero were charged with being
fifth columnists as they refused to give aid to them. Subsequently they were taken to the USSAFE
headquarters.
Torrefiel took charge of Eady and Ormeo took charge of Cordero. Their hands were free but were
blindfolded. Cordero called to Eady every now and then to know if he was following. After a
while Eady did not respond anymore so they stopped to wait for them. Torrefiel had taken the
wrong way so he went back to a guardhouse and left Eady there. He tried to find a way to overtake
Ormeo and Cordero but was unsuccessful. At the guardhouse, he discovers Eady had escaped.
Torrefiel followed a different route enabling him to find Ormeo and Cordero. Ormeo rushed back
to the guardhouse upon discovering that Eady had escaped; Cordero was left with Torrefiel.
As Cordero was about to urinate, Torrefiel pushed her and carried her to a log and laid her on it
and raped her. Torrefiel began to unbutton his pants and wound cogon leaves around his genitals.
It was visible to Cordero as her blindfold had fallen down a little. Pressing her neck so she would
remain silent, Torrefiel proceeded to have intercourse with her. Ormeo, taking advantage, also had
sex with her. The soldiers desisted from bringing Cordero to their headquarters and returned her to
their house. A servant informed Cordero that Eady had gone away. Upon Eady s return, Cordero
informed him that she was abused by Torrefiel.
Issues:
1) WON witness is credible, and WON rape was committed.
2) WON there are any aggravating circumstances.
Held/Ratio:
1) YES to both.
a. The court sees no incongruity between the affidavit and testimony of complainants. The
testimony
sufficiently proves Torrefiels guilt.
i. Cordero recognized Torrefiel by his voice even though she was blindfolded because it was
falling.
ii. Back at Eadys house, the soldiers roaming inside the house is proven by the sound of
their footsteps.
b. Exertion of force or violence is implied in the term rape . Pushing down the victim proves
force. Although for Ormeo, use of force may still be doubted. Cordero was not hostile towards
him after crime.
2) YES.
a. Trial Court erred in accepting the aggravating circumstance of NOCTURNITY this was
entirely unexpected as the ordeal started early in the afternoon.
b. IGNOMINY is present.
The novelty of the act of winding cogon grass on his genitals before raping the victim
augmented the wrong done by increasing its pain and adding moral disgrace thereto.
FIRST DIVISION
[G.R. No. 115431. April 18, 1996]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE TORREFIEL, accused-

appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT PREVAIL OVER POSITIVE
IDENTIFICATION OF THE ACCUSED AND ABSENT PHYSICAL IMPOSSIBILITY TO BE
AT THE SCENE OF THE CRIME. - It is well-settled that the defense of alibi cannot prevail over
the positive identification of the accused. Furthermore, for alibi to prosper, the accused must
establish not only that he was somewhere else when the crime was committed but that it was also
physically impossible for him to have been at the scene of the crime at the time of its commission.
2. ID.; ID.; CREDIBILITY OF WITNESS; UPHELD ABSENT IMPROPER MOTIVE. - It is
significant to note that no improper motive can be imputed to Realidad Mangilog as would make
her testify falsely against accused-appellant, hence her testimony is worthy of full faith and credit.
3. ID.; ID.; FACTUAL FINDINGS OF THE COURT OF APPEALS CONCLUSIVE AND
OUGHT NOT TO BE DISTURBED; EXCEPTION. - The Court of Appeals appreciated abuse of
superior strength, aid of armed men and evident premeditation as aggravating circumstances.
These findings are factual and the rule is that findings of the Court of Appeals upon factual
questions are conclusive and ought not to be disturbed unless shown to be contrary to the evidence
on record, and, in this case, there is no such showing.
4. CRIMINAL LAW; CONSPIRACY; MAY BE INFERRED FROM THE ACTS OF THE
ACCUSED WHICH INDICATE THEIR COMMON INTENTION TO COMMIT THE CRIME.
This contention we also find untenable, conspiracy being clearly manifest in this case as was
correctly found by the Court of Appeals. For collective responsibility to be established, it is not
necessary that conspiracy be proved by direct evidence of a prior agreement to commit the crime
as only rarely would such an agreement be demonstrable since in the nature of things criminal
undertakings are rarely documented by agreement in writing. Conspiracy may be inferred from the
acts of the accused immediately prior to, during and right after the shooting of the victim which
indicate their common intention to commit the crime. The record shows that: (1) all the accused
which include accused-appellant arrived together at the scene of the killings; (2) they were all
fully armed; (3) three of them simultaneously shot to death Leopoldo Mangilog, while an
undetermined number shot and stabbed to death Reynaldo Mangilog; (4) the attack on the two
victims was executed simultaneously; and (5) the accuseds statement to the effect that the victims
were responsible for the fact that the military men were running after them. This tends to establish
a motive on their part to kill the victims. All these indubitably indicate a concerted effort on the
part of the accused on a common design to kill the victims.
5. ID.; ID.; THE ACT OF ONE CONSPIRATOR IS THE ACT OF ALL. - Conspiracy having
been adequately shown, all the accused are answerable as co-principals regardless of the degree of
their participation. In fact, it is not necessary to ascertain the individual participation in the final
liquidation of the victims or to ascertain the precise modality or extent of participation of each
individual conspirator as the applicable rule is that the act of one conspirator is the act of all of
them. It hardly matters, therefore, that accused-appellant did not actually participate in the killing
of Reynaldo Mangilog or of Leopoldo Mangilog.
6. ID.; QUALIFYING CIRCUMSTANCE; TREACHERY; PRESENT WHEN VICTIMS WERE
CLEARLY NOT IN ANY POSITION TO DEFEND THEMSELVES; CASE AT BAR. - As
alleged in the informations and as correctly observed by the Solicitor General, the killing of the
victims was qualified by treachery. Leopoldo Mangilog was shot while he was serving the accused
coffee or shortly thereafter. Reynaldo Mangilog, on the other hand, was shot and stabbed to death
while he was taking a bath. It may be added that the victims were naturally unarmed at that time
and their execution was done so early in the morning, that is, when they had practically just
awakened. Under the circumstances, the victims were clearly not in any position to defend
themselves from the sudden and unexpected attack of the accused. These circumstances are
manifestly indicative of the presence of the conditions under which treachery may be appreciated,
i.e., the employment of means of execution that gives the person attacked no opportunity to defend
himself or to retaliate, and that said means of execution was deliberately or consciously adopted.
7. ID.; ID.; ID.; ABSORBS THE CIRCUMSTANCES OF ABUSE OF SUPERIOR STRENGTH
AND AID OF ARMED MEN. - However, we believe, and so hold, that treachery absorbs the
circumstances of abuse of superior strength and aid of armed men, as it appears that the accused
saw to it that they were armed and far outnumbered the victims precisely to ensure the
accomplishment of their criminal objective.
8. ID.; MURDER; PROPER IMPOSABLE PENALTY. - Under Article 248 of the Revised Penal
Code, the prescribed penalty for murder is reclusion temporal in its maximum period to death.
Since we find accused-appellant guilty beyond reasonable doubt of the crime of murder qualified
by treachery in Criminal Cases Nos. 2909 and 2910 and that the generic aggravating circumstance
of evident premeditation was also attendant, the penalty of reclusion perpetua should be imposed
in each case, applying Article 63 of the Revised Penal Code and considering the proscription
against the imposition of the death penalty at the time the crimes were committed.
APPEARANCES OF COUNSEL
Cyril A. Tangle for accused-appellants.
DECISION
HERMOSISIMA, JR., J.:
Accused-appellant Jose Torrefiel; Hilario Masgong alias Mark; Casiano Masgong alias Manny;
Saturnino Suyod alias Ka Eddie; Jerry Delicano alias Ka Cocoy; Luciano Solanoy, Jr., alias Ka
Balot; Noel Semira alias Ka Nido; Ricky David alias Ka Macky; and Alex Francisco alias Ka Jing,
were charged in Criminal Cases Nos. 2909 and 2910 for Murder and in Criminal Case No. 2911
for Robbery before the Regional Trial Court, Branch 8, Kalibo, Alklan. These cases were, upon
agreement of the parties, jointly tried, since they arose from the same incident and involved the
same parties. The trial proceeded as against the accused-appellant Jose Torrefiel only, the rest of
the accused having remained at large.
After trial, the court a quo convicted accused-appellant1 in each of the cases, the dispositive
portions of which are quoted hereinbelow:
In Criminal Case No. 2909 for Murder:
WHEREFORE, this Court finds the accused, Jose Torrefiel, guilty beyond reasonable doubt of the
crime of murder and hereby sentences the accused to a penalty of imprisonment of Seventeen (17)
years, Four (4) months and One (1) day to Eighteen (18) years and Eight (8) months.
The accused is hereby ordered also to indemnify the family of the victim the amount of FIFTY
THOUSAND PESOS (P50,000.00) by way of damages. x x x2
In Criminal Case No. 2910 for Murder:
WHEREFORE, this Court finds the accused, Jose Torrefiel, guilty beyond reasonable doubt of the
crime of murder and hereby sentences the accused to a penalty of imprisonment of Seventeen (17)
years, Four (4) months and One (1) day to Eighteen (18) years and Eight (8) months.
The accused is hereby ordered also to indemnify the family of the victim the amount of FIFTY
THOUSAND PESOS (P50,000.00) by way of damages. x x x3
In Criminal Case No. 2911 for Robbery:
WHEREFORE, this Court finds the accused Jose Torrefiel guilty beyond reasonable doubt of the
crime of Robbery and sentences the accused to suffer the penalty of Twelve (12) years and One (1)
day to Fourteen (14) years and Eight (8) months. x x x.4
Accused-appellant Jose Torrefiel, appealed to the Court of Appeals. After considering the evidence
and the law involved, the Court of Appeals affirmed the judgment of conviction in all the cases but
refrained from entering judgment in Criminal Cases Nos. 2909 and 2910 for murder, having
ascertained that the proper imposable penalty for each of said crimes is reclusion perpetua, and
instead, certified these two (2) cases to us for final determination pursuant to Section 13 of Rule
124 of the 1985 Rules on Criminal Procedure.
The facts as correctly summarized by the prosecution in its Brief are as follows:5
On May 26, 1989 at about 5:00 oclock in the morning at Barangay Naligusan, Ibajay, Aklan,
Realidad Mangilog woke up early to prepare their breakfast. Her husband Leopoldo Mangilog and
her son Reynaldo were about to join her downstairs, when someone knocked at the kitchen
backdoor (TSN, March 21, 1990, pp. 3-4).
It was Leonardo who opened the door. When the door was opened appellant Jose Torrefiel armed
with a bolo and a hand gun entered the house first followed by Masiano Masgong, Hilario
Masgong, Alex Francisco, Saturnino Suyod and Noel alias Nido in that order, who were all armed
with long firearms. (TSN, Ibid., p. 5)
The group greeted Leopoldo as How are you Tay? to which the latter answered as usual. Leopoldo
even served the newcomers with coffee, but because the coffee was not sufficient for them,
Realidad asked Hermogenes Calizo, who was then the errand boy of the Mangilog (sic), to buy
coffee from the store. (TSN, Id., pp. 5-6).
The group of appellant Torrefiel did not even touch or taste the coffee served them by Leopoldo.
Instead, appellant, Casiano Masgong and Satur Suyod aimed their guns at Leopoldo and started
shooting him to death (TSN, Id., p. 6).6 Simultaneous to the shooting of Leopoldo inside the
house by the group of appellant was the shooting and stabbing of Reynaldo who was then taking a
bath inside the bathroom located outside of the house by the other members of the group who did
not enter the house. (TSN. id., p. 7)
After the killing of Leopoldo and Reynaldo, the accused ransacked the house and took P500.00
cash, wrist watch, kitchen wares, grocery items, chickens and guitar. (TSN, Id., p. 10)
Before the accused left the house of the victims, they even fired their guns at random. They were
blaming the victims to be responsible to the incident why the military was running after them.
They were also telling the people along the road that the fish is okey and could be ready to be
butchered (Id., p. 11).
Accused-appellant invoked the defense of alibi, claiming that at about 7:00 oclock in the morning
of May 26, 1989, he was at the house of Barangay Captain Benedicto Puod in Barangay
Agbalogo, Makato, Aklan, which can be reached in an hour and a half( 1 1/2) from Barangay
Naligusan, Ibajay, Aklan, the scene of the incident. He had gone on vacation to Barangay
Agbalogo on May 22, 1989 and attended the fiesta on May 25, 1989. He had remained in the said
barangay since then upon the advice of his wife not to return to Barangay Naligusan, Ibajay,
Aklan, appellants place of residence, as the situation there was somewhat hot.7 Benedicto Puod
confirmed appellants claim as to his whereabouts in the morning of May 26, 1989, recounting that
he and appellant were, indeed, together drinking alcoholic drinks from 7:00 to 11:00 oclock in the
morning on the occasion of the birthday of his child.8 In addition, Pedro Tosio as a witness
testified as to the presence of appellant at his house in Barangay Agbalogo in the morning until
about 5:00 oclock in the afternoon of May 25, 1989, the day of the fiesta, declaring further that he
also saw appellant pass by his house on May 26, 1989.9
In his appeal, accused-appellant interposed the following assignment of errors:
I
THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE
CRIME OF MURDER IN CRIMINAL CASE NO. 2909.
II
CRIME OF MURDER IN CRIMINAL CASE NO. 2910.
III
CRIME OF ROBBERY IN CRIMINAL CASE NO. 2911.10
On the first and third assignment of errors, accused-appellant maintains his defense of alibi,
stressing that, not being around at the time and place of the incident as he was at Barangay
Agbalogo, Makato, Aklan, he could not have murdered Leopoldo Mangilog and robbed the
Mangillogs of their personal belongings.
We are not persuaded.
It is well-settled that the defense of alibi cannot prevail over the positive identification of the
accused.11 Furthermore, for alibi to prosper, the accused must establish not only that he was
somewhere else when the crime was committed but that it was also physically impossible for him
to have been at the scene of the crime at the time of its commission.12
That accused-appellant had been positively identified as one of the culprits by prosecution witness
Realidad Mangilog cannot be doubted. The Mangilogs and the accused-appellant had known each
other for years as neighbors. Accused-appellant whose parents reside in Barangay Agbalogo,
Makato, Aklan, established residence in Barangay Naligusan, Ibajay, Aklan when he got married
to a resident there. Since his house is only about one hundred and fifty (150) meters away from
that of the Mangilogs, there were occasions when accused-appellant would visit the Mangilogs,
usually for coffee, and that Leopoldo Mangilog would also go to the accused-appellants house.
Indeed, eyewitness Realidad Mangilog knows the accused-appellant so well that she could not
have been mistaken in identifying appellant as one of those armed men responsible for the death
of her husband and son on that fateful morning of May 26, 1989. She testified thus:
Q. When your husband open (sic) the door, was there somebody who got inside?
A. Yes, sir.
Q. Where were you at that time?
A. I am (sic) at that time at the door dividing the sala and the dining room.
xxx xxx xxx
Q. Were you able to recognized (sic) those persons who entered your house?
A. I can recognized (sic) Jose Torrefiel leading the group and Masiano Masgong alias Manny,
Alex Francisco followed by Satur or Saturnino Suyod and the other one was Noel Semira alias
Nido.13
Moreover, the two other prosecution witnesses, Coreto Maguirang and Hermogenes Calizo,
confirmed the presence of accused-appellant in Barangay Naligusan, Ibajay, Aklan at the time of
the incident in question. Maquirang testified that while he watched over his carabao which was
grazing on May 26, 1989 at around 5:00 oclock in the morning, he saw the appellant and his group
as they passed by him from a distance of about ten (10) meters heading towards the direction of
the house of Leopoldo Mangilog in Barangay Naligusan, Ibajay, Aklan.14 He could not be
mistaken as to appellants identity since he had on several occasions seen appellant together with
the same group of armed men.15 Calizo, on the other hand, claimed that he had seen appellant
face to face in the house of the Mangilogs that same morning of May 26, 1989 shortly before the
subject incident occurred since at that time he was living in said house. He only happened to be
sent out by Realidad Mangilog to buy coffee so he did not get to see the actual killing of Leopoldo
and Reynaldo Mangilog.16
It is significant to note that no improper motive can be imputed to Realidad Mangilog as would
make her testify falsely against accused-appellant; hence her testimony is worthy of full faith and
credit.17
Evidently complementing the positive identification of accused-appellant as one of the
perpetrators of the crimes charged is his failure to prove that it was physically impossible for him
to be at Barangay Naligusan, Ibajay, Aklan at the time of the incident, assuming that his claim that
he went to the house of Barangay Captain Puod at 7:00 oclock in the morning of May 26, 1989
was true. As testified to by appellant himself, it would take just one and a half (1 ) hours to reach
Barangay Naligusan, Ibajay, Aklan from Barangay Agbalogo, Makato, Aklan. Needless to state, it
would not at all be impossible for appellant to be at Barangay Agbalogo at 7:00 oclock in the
morning or some two hours after the crimes were committed at Barangay Naligusan.
In his second assignment of error, accused-appellant contends that he had nothing to do with the
killing of the victim Reynaldo Mangilog, obviously relying on the testimony of Realidad
Mangilog to the effect that Reynaldo Mangilog was shot and stabbed to death by the members of
appellants group who stationed themselves outside the house.
This contention we also find untenable, conspiracy being clearly manifest in this case as was
correctly found by the Court of Appeals. For collective responsibility to be established, it is not
necessary that conspiracy be proved by direct evidence of a prior agreement to commit the
crime18 as only rarely would such an agreement be demonstrable since in the nature of things
criminal undertakings are rarely documented by agreement in writing.19 Conspiracy may be
inferred from the acts of the accused immediately prior to, during and right after the shooting of
the victim which indicate their common intention to commit the crime.20
The record shows that: (1) all the accused which include accused-appellant arrived together at the
scene of the killings; (2) they were all fully armed; (3) three of them simultaneously shot to death
Leopoldo Mangilog, while an undetermined number shot and stabbed to death Reynaldo
Mangilog; (4) the attack on the two victims was executed simultaneously; and (5) the accuseds
statement to the effect that the victims were responsible for the fact that the military men were
running after them. This tends to establish a motive on their part to kill the victims. All these
indubitably indicate a concerted effort on the part of the accused on a common design to kill the
victims.
Conspiracy having been adequately shown, all the accused are answerable as co-principals
regardless of the degree of their participation.21 In fact, it is not necessary to ascertain the
individual participation in the final liquidation of the victims22 or to ascertain the precise modality
or extent of participation of each individual conspirator as the applicable rule is that the act of one
conspirator is the act of all of them.23 It hardly matters, therefore, that accused-appellant did not
actually participate in the killing of Reynaldo Mangilog or of Leopoldo Mangilog.
As alleged in the informations and as correctly observed by the Solicitor General, the killing of the
victims was qualified by treachery. Leopoldo Mangilog was shot while he was serving the accused
coffee or shortly thereafter. Reynaldo Mangilog, on the other hand, was shot and stabbed to death
while he was taking a bath. It may be added that the victims were naturally unarmed at that time
and their execution was done so early in the morning, that is, when they had practically just
awakened. Under the circumstances, the victims were clearly not in any position to defend
themselves from the sudden and unexpected attack of the accused.24 These circumstances are
manifestly indicative of the presence of the conditions under which treachery may be appreciated,
i.e., the employment of means of execution that gives the person attacked no opportunity to defend
himself or to retaliate, and that said means of execution was deliberately or consciously
adopted.25
The Court of Appeals appreciated abuse of superior strength, aid of armed men and evident
premeditation as aggravating circumstances. These findings are factual and the rule is that findings
of the Court of Appeals upon factual questions are conclusive and ought not to be disturbed unless
shown to be contrary to the evidence on record,26 and, in this case, there is no such showing.
However, we believe, and so hold, that treachery absorbs the circumstances of abuse of superior
strength and aid of armed men, as it appears that the accused saw to it that they were armed and
far outnumbered the victims precisely to ensure the accomplishment of their criminal objective.27
Under Article 248 of the Revised Penal Code, the prescribed penalty for murder is reclusion
temporal in its maximum period to death. Since we find accused-appellant guilty beyond
reasonable doubt of the crime of murder qualified by treachery in Criminal Cases Nos. 2909 and
2910 and that the generic aggravating circumstance of evident premeditation was also attendant,
the penalty of reclusion perpetua should be imposed in each case, applying Article 63 of the
Revised Penal Code and considering the proscription against the imposition of the death penalty at
the time the crimes were committed.
WHEREFORE, the decisions of the trial court are hereby AFFIRMED with the MODIFICATION
that the accused-appellant is sentenced to suffer the penalty of reclusion perpetua for each case of
murder (Criminal Cases Nos. 2909 and 2910).
SO ORDERED.
Padilla (Chairman), Bellosillo, Vitug, and Kapunan, JJ., concur.
1 Penned by Judge Emma C. Labayen, RTC, Branch 8, Kalibo, Aklan.

2 Decision of the RTC, Record, p. 205.
5 Rollo, pp. 87-89.
6 On further questioning, witness Realidad Mangilog named Satur Suyod, Casiano Masgong and
Hilario Masgong as the persons who gunned down her husband and failed to mention the name of
appellant as one of the assailants. (TSN, March 21,1989, pp. 8 & 21)
7 TSN, October 11, 1990, pp. 12-13.
8 Id., p. 5.
9 TSN, November 15, 1990, pp. 3-4.
10 Appellants Brief filed with the Court of Appeals, Rollo, pp. 25-26.
11 People v. Barte, 230 SCRA 401, 408 [1994]; People v. Dominguez, 217 SCRA 170, 184
[1993]; People v. Calope, 229 SCRA 413, 421 [1994].
12 People v. Dominguez, supra, 183; People v. Cabuang, 217 SCRA 675, 684 [1993], People v.
Agcaoile, 206 SCRA 606, 612 [1992].
13 TSN, March 21, 1990, pp. 4-5.
14 TSN, March 20, 1990, p. 5.
15 Id., p. 8.
16 TSN, September 18, 1990, pp. 4-5.
17 People v. Tabao, 240 SCRA 758, 770 [1995]; People v. Nitcha, 240 SCRA 283, 293 citing
People v. Rostata, 218 SCRA 657 [1993].
18 People v. Tami, 244 SCRA 1, 22 [1995].
19 People v. Yabut, 226 SCRA 715, 719 [1993].
20 People v. Umbrero, 196 SCRA 821, 829 [1991]; People v. Dalanon, 237 SCRA 607, 619
[1994].
21 People v. Solon, 244 SCRA 554, 562 [1995].
22 People v. Asuncion, 179 SCRA 396, 401 [1989].
23 People v. De Roxas, 241 SCRA 369, 377 [1995].
24 People v. Lualhati, 234 SCRA 325, 332 [1994].
25 People v. Suitos, 220 SCRA 419, 430 [1993]; People v. Bernardo, 222 SCRA 502, 508-509
[1993]; People v. Verchez, 233 SCRA 174, 183 [1994].
26 Mercado v. Court of Appeals, 234 SCRA 98, 102 [1994].
27 People v. Amondina, 220 SCRA 6, 11 [1993], citing People v. Mori, 55 SCRA 382.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-28232 February 6, 1971

vs.
JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y GOMEZ, BASILIO PINEDA,
JR., alias "BOY," EDGARDO AQUINO Y PAYUMO and ROGELIO CAAL Y SEVILLA,
defendants-appellants.
Office of the Solicitor General Antonio P. Barredo and Solicitor Augusto M. Amores for plaintiff-
appellee.
Baizas, Alberto and Associates, Andreciano F. Caballero and Lota, Paraiso, Garcia and Dueas for
defendant-appellant Jaime G. Jose.
Mabanag, Eliger and Associates for defendant-appellant Basilio Pineda, Jr.
Sycip, Salazar, Luna, Manalo and Feliciano for defendant-appellant Edgardo P. Aquino.
Antonio Coronel Law Office and Roberto J. Ignacio for defendant-appellant Rogelio S. Canial.
PER CURIAM:
The amended complaint filed in this case in the court below, reads as follows:
The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR. Alias
"BOY," EDUARDO AQUINO Y PAYUMO alias "EDDIE" and ROGELIO CAAL Y SEVILLA
alias "ROGER," as principals, WONG LAY PUENG, SILVERIO GUANZON Y ROMERO and
JESSIE GUION Y ENVOLTARIO as accomplices, of the crime of Forcible Abduction with rape,
That on or about the 26th day of June, 1967, in Quezon City, and within the jurisdiction of this
Honorable Court, the above-named principal accused, conspiring together, confederating with and
mutually helping one another, did, then and there, wilfully, unlawfully and feloniously, with lewd
design, forcibly abduct the undersigned complainant against her will, and did, then and there take
her, pursuant to their common criminal design, to the Swanky Hotel in Pasay City, where each of
the four (4) accused, by means of force and intimidation, and with the use of a deadly weapon,
have carnal knowledge of the undersigned complainant against her will, to her damage and
prejudice in such amount as may be awarded to her under the provisions of the civil code.
That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE GUION y
ENVOLTARIO without taking a direct part in the execution of the offense either by forcing,
inducing the principal accused to execute, or cooperating in its execution by an indispensable act,
did, then and there cooperate in the execution of the offense by previous or simultaneous acts, that
is, by cooperating, aiding, abetting and permitting the principal accused in sequestering the
undersigned complainant in one of the rooms of the Swanky Hotel then under the control of the
accused Wong Lay Pueng, Silverio Guanzon y Romero and Jessie Guion y Envoltario, thus
supplying material and moral aid in the consummation of the offense.
That the aforestated offense has been attended by the following aggravating circumstances:
1. Use of a motor vehicle.
2. Night time sought purposely to facilitate the commission of the crime and to make its
discovery difficult;
3. Abuse of superior strength;
4. That means were employed or circumstances brought about which added ignominy to the
natural effects of the act; and
5. That the wrong done in the commission of the crime be deliberately augmented by causing
other wrong not necessary for the commission.
CONTRARY TO LAW.
Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in the above-quoted
amended complaint; however, in an order dated July 11, 1967, the court reserved judgment "until
such time as the prosecution shall have concluded presenting all of its evidence to prove the
aggravating circumstances listed in the complaint." Upon the other hand, the rest of the defendants
went to trial on their respective pleas of not guilty. After the merits, the court below rendered its
decision on October 2, 1967, the dispositive portion of which reads as follows:
WHEREFORE, the Court finds the accused Jaime Jose, Rogelio Caal, Eduardo Aquino and
Basilio Pineda, Jr. guilty beyond reasonable doubt of the crime of forcible abduction with rape as
described under Art. 335 of the Revised Penal Code, as amended, and hereby sentences each of
them to the death penalty to be executed at a date to be set and in the manner provided for by law;
and each to indemnify the complainant in the amount of ten thousand pesos. On the ground that
the prosecution has failed to establish a prima facie case against the accomplices Wong Lay
Pueng, Silverio Guanzon y Romero, and Jessie Guion y Envoltario, the Motion to Dismiss filed
for and in their behalf is hereby granted, and the case dismissed against the aforementioned
accused.
Insofar as the car used in the abduction of the victim which Jaime Jose identified by pointing to it
from the window of the courtroom and pictures of which were submitted and marked as Exhibits
"M" and "M-1," and which Jaime Jose in his testimony admitted belonged to him, pursuant to Art.
45 of the Revised Penal Code, which requires the confiscation and forfeiture of the proceeds or
instruments of the crime, the Court hereby orders its confiscation.
This case is now before us by virtue of the appeal interposed by Basilio Pineda, Jr., Edgardo
Aquino, and Jaime Jose, and for automatic review as regards Rogelio Caal. However, for
practical purposes all of them shall hereafter be referred to as appellants.
The complainant, Magdalena "Maggie" de la Riva, was, at the time of the incident, 25 years old
and single; she graduated from high school in 1958 at Maryknoll College and finished the
secretarial course in 1960 at St. Theresa's College. Movie actress by profession, she was receiving
P8,000.00 per picture. It was part of her work to perform in radio broadcasts and television shows,
where she was paid P800.00 per month in permanent shows, P300.00 per month in live
promotional shows, and from P100.00 to P200.00 per appearance as guest in other shows.
So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De la Riva, homeward
bound from the ABS Studio on Roxas Blvd., Pasay City, was driving her bantam car accompanied
by her maid Helen Calderon, who was also at the front seat. Her house was at No. 48, 12th Street,
New Manila, Quezon City. She was already near her destination when a Pontiac two-door
convertible car with four men aboard (later identified as the four appellants) came abreast of her
car and tried to bump it. She stepped on her brakes to avoid a collision, and then pressed on the
gas and swerved her car to the left, at which moment she was already in front of her house gate;
but because the driver of the other car (Basilio Pineda, Jr.) also accelerated his speed, the two cars
almost collided for the second time. This prompted Miss De la Riva, who was justifiably annoyed,
to ask: "Ano ba?" Forthwith, Pineda stopped the car which he was driving, jumped out of it and
rushed towards her.
The girl became so frightened at this turn of events that she tooted the horn of her car
continuously. Undaunted, Pineda opened the door of Miss De la Riva's car and grabbed the lady's
left arm. The girl held on tenaciously to her car's steering wheel and, together with her maid,
started to scream. Her strength, however, proved no match to that of Pineda, who succeeded in
pulling her out of her car. Seeing her mistress' predicament, the maid jumped out of the car and
took hold of Miss De la Riva's right arm in an effort to free her from Pineda's grip. The latter,
however, was able to drag Miss De la Riva toward the Pontiac convertible car, whose motor was
all the while running.
When Miss De la Riva, who was being pulled by Pineda, was very near the Pontiac car, the three
men inside started to assist their friend: one of them held her by the neck, while the two others
held her arms and legs. All three were now pulling Miss De la Riva inside the car. Before she was
completely in, appellant Pineda jumped unto the driver's seat and sped away in the direction of
Broadway Street. The maid was left behind.
The complainant was made to sit between Jaime Jose and Edgardo Aquino at the back seat;
Basilio Pineda, Jr. was at the wheel, while Rogelio Caal was seated beside him. Miss De la Riva
entreated the appellants to release her; but all she got in response were jeers, abusive and impolite
language that the appellants and threats that the appellants would finish her with their Thompson
and throw acid at her face if she did not keep quiet. In the meantime, the two men seated on each
side of Miss De la Riva started to get busy with her body: Jose put one arm around the
complainant and forced his lips upon hers, while Aquino placed his arms on her thighs and lifted
her skirt. The girl tried to resist them. She continuously implored her captors to release her, telling
them that she was the only breadwinner in the family and that her mother was alone at home and
needed her company because her father was already dead. Upon learning of the demise of Miss De
la Riva's father, Aquino remarked that the situation was much better than he thought since no one
could take revenge against them. By now Miss De la Riva was beginning to realize the futility of
her pleas. She made the sign of the cross and started to pray. The appellants became angry and
cursed her. Every now and then Aquino would stand up and talk in whispers with Pineda, after
which the two would exchange knowing glances with Caal and Jose.
The car reached a dead-end street. Pineda turned the car around and headed towards Victoria
Street. Then the car proceeded to Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to
Epifanio de los Santos Avenue. When the car reached Makati, Aquino took a handkerchief from
his pocket and, with the help of Jose, blindfolded Miss De la Riva. The latter was told not to shout
or else she would be stabbed or shot with a Thompson. Not long after, the car came to a stop at the
Swanky Hotel in Pasay City The blindfolded lady was led out of the car to one of the rooms on the
second floor of the hotel.
Inside the room Miss De la Riva was made to sit on a bed. Her blindfold was removed. She saw
Pineda and Aquino standing in front of her, and Jose and Caal sitting beside her, all of them
smiling meaningfully. Pineda told the complainant: "Magburlesque ka para sa amin." The other
three expressed their approval and ordered Miss De la Riva to disrobe. The complainant ignored
the command. One of the appellants suggested putting off the light so that the complainant would
not be ashamed. The idea, however, was rejected by the others, who said that it would be more
pleasurable for them if the light was on. Miss De la Riva was told to remove her stocking in order,
according to them, to make the proceedings more exciting. Reluctantly, she did as directed, but so
slowly did she proceed with the assigned task that the appellants cursed her and threatened her
again with the Thompson and the acid. They started pushing Miss De la Riva around. One of them
pulled down the zipper of her dress; another unhooked her brassiere. She held on tightly to her
dress to prevent it from being pulled down, but her efforts were in vain: her dress, together with
her brassiere, fell on the floor.
The complainant was now completely naked before the four men, who were kneeling in front of
her and feasting their eyes on her private parts. This ordeal lasted for about ten minutes, during
which the complainant, in all her nakedness, was asked twice or thrice to turn around. Then Pineda
picked up her clothes and left the room with his other companions. The complainant tried to look
for a blanket with which to cover herself, but she could not find one.
Very soon, Jose reentered the room and began undressing himself. Miss De la Riva, who was
sitting on the bed trying to cover her bareness with her hands, implored him to ask his friends to
release her. Instead of answering her, he pushed her backward and pinned her down on the bed.
Miss De la Riva and Jose struggled against each other; and because the complainant was putting
up stiff resistance, Jose cursed her and hit her several times on the stomach and other parts of the
body. The complainant crossed her legs tightly, but her attacker was able to force them open. Jose
succeeded in having carnal knowledge of the complainant. He then left the room.
The other three took their turns. Aquino entered the room next. A struggle ensued between him
and Miss De la Riva during which he hit, her on different parts of the body. Like Jose, Aquino
succeeded in abusing the complainant. The girl was now in a state of shock. Aquino called the
others into the room. They poured water on her face and slapped her to revive her. Afterwards,
three of the accused left the room, leaving Pineda and the complainant After some struggle during
which Pineda hit her, the former succeeded in forcing his carnal desire on the latter. When the
complainant went into a state of shock for the second time, the three other men went into the room
again poured water on the complainant's face and slapped her several times. The complainant
heard them say that they had to revive her so she would know what was happening. Jose, Aquino
and Pineda then left the room. It was now appellant Canal's turn. There was a struggle between
him and Miss De la Riva. Like the other three appellants before him, he hit the complainant on
different parts of the body and succeeded in forcing his carnal lust on her.
Mention must be made of the fact that while each of mention must be made the four appellants
was struggling with the complainant, the other three were outside the room, just behind the door,
threatening the complainant with acid and telling her to give in because she could not, after all,
escape what with their presence.
After the appellants had been through with the sexual carnage, they gave Miss De la Riva her
clothes, told her to get dressed and put on her stockings, and to wash her face and comb her hair,
to give the impression that nothing had happened to her. They told her to tell her mother that she
was mistaken by a group of men for a hostess, and that when the group found out that she was a
movie actress, she was released without being harmed. She was warned not to inform the police;
for if she did and they were apprehended, they would simply post bail and later hunt her up and
disfigure her face with acid. The appellants then blindfolded Miss De la Riva again and led her
down from the hotel room. Because she was stumbling, she had to be carried into the car. Inside
the car, a appellant Jose held her head down on his lap, and kept it in that position during the trip,
to prevent her from being seen by others.
Meanwhile, the four appellants were discussing the question of where to drop Miss De la Riva.
They finally decided on a spot in front of the Free Press Building not far from Epifanio de los
Santos Avenue near Channel 5 to make it appear, according to them, that the complainant had just
come from the studio. Pineda asked Jose to alight and call a taxicab, but to choose one which did
not come from a well-known company. Jose did as requested, letting several taxicabs pass by
before flagging a UBL taxicab. After they warned again Miss De la Riva not to inform anyone of
what had happened to her, appellant Canal accompanied her to the taxicab. The time was a little
past 6:00 o'clock. When Miss De la Riva was already inside the cab and alone with the driver,
Miguel F. Campos, she broke down and cried. She kept asking the driver if a car was following
them; and each time the driver answered her in the negative.
It was 6:30 o'clock or some two hours after the abduction when Miss De la Riva reached
home. Her mother, her brother-in-law Ben Suba, as well as several PC officers, policemen and
reporters, were at the house. Upon seeing her mother, the complainant ran toward her and said,
"Mommy, Mommy, I have been raped. All four of them raped me." The mother brought her
daughter upstairs. Upon her mother's instruction, the complainant immediately took a bath and a
douche. The older woman also instructed her daughter to douche himself two or three times daily
with a strong solution to prevent infection and pregnancy. The family doctor, who was afterwards
summoned, treated the complainant for external physical injuries. The doctor was not, however,
told about the sexual assaults. Neither was Pat. Pablo Pascual, the police officer who had been sent
by the desk officer, Sgt. Dimla, to the De la Riva residence when the latter received from a mobile
patrol a report of the snatching. When Miss De la Riva arrived home from her harrowing
experience, Pat. Pascual attempted to question her, but Ben Suba requested him to postpone the
interrogation until she could be ready for it. At that time, mother and daughter were still undecided
on what to do.
On the afternoon of June 28, 1967, the complainant family gathered to discuss what steps, if any,
should be taken. After some agonizing moments, a decision was reached: the authorities had to be
informed. Thus, early on the morning of June 29, 1967, or on the fourth day after the incident,
Miss De la Riva, accompanied by her lawyer, Atty. Regina O. Benitez, and by some members of
the family, went to the Quezon City Police Department Headquarters, filed a complaint and
executed a statement (Exh. "B") wherein she narrated the incident and gave descriptions of the
four men who abused her. In the afternoon of the same day, the complainant submitted herself ito
a medico-internal examination by Dr. Ernesto Brion, NBI Chief Medico-Legal Officer.
During the physical examination of the complainant by Dr. Brion on June 29, 1967, Pat. Pascual
was also at the NBI office. There he received a telephone call from the police headquarters to the
effect that one of the suspects had been apprehended. That evening, the complainant and Pat.
Pascual proceeded to the headquarters where Miss De la Riva identified appellant Jaime Jose from
among a group of persons inside the Office of the Chief of Police of Quezon City as one of the
four men he abducted and raped her. She executed another statement (Exh. "B-1") wherein she
made a formal identification of Jose and related the role played by him.
At about 9:00 o'clock of the same evening, appellant Jose executed a statement (Exh. "I") before
Pat. Marcos G. Vias. In his statement, which was duly sworn. Jose admitted that he knew about,
and was involved in, the June 26 incident. He named the other line appellants as his companions.
Jose stated, among other things, that upon the initiative of Pineda, he and the other three waited
for Miss De la Riva to come out of the ABS Studio; that his group gave chase to the complainant's
car; that it was Pineda who blindfolded her and that only Pineda and Aquino criminally assaulted
the complainant.
After Exh, "I" was executed by Jose, an informant furnished Pat. Vinas with a picture of appellant
Edgardo Aquino. The picture was shown to Miss De la Riva, who declared in her sworn statement
(Exh. "B-3") that the man in the picture was one of her abductors and rapists. The same picture
was shown to Jose, who, in another sworn statement (Exh. "I-l"), identified the man in the picture
as appellant Aquino.
After the apprehension of Jose, the other three soon fell into the hands of the authorities: Pineda
and Caal on July 1, 1967, in Lipa City, and Aquino on July 5, 1967, in the province of Batangas.
On the evening of July 1, 1967. Miss De la Riva pointed to Pineda and Caal as among the four
persons who abducted and raped her. She picked them out from among several person in the
Office of the Chief of Police of Quezon City. Later in the same evening, Miss De la Riva executed
a sworn statement (Exh. B-2)wherein she made the same identification of the two appellants from
among a group of persons in the Office of the Chief of the Detective Bureau, adding that appellant
Caal had tattoo marks on his right hip. After the identification, one of the policemen took
appellant Caal downstairs and undressed him, and he saw, imprinted on the said appellant's right
hip, the words "Bahala na Gang."
Appellant Caal and Pineda executed and swore to separate statements on the day of their arrest.
In his statement (Exh. "G"), appellant Caal confirmed the information previously given by Jose
that the four of them waited for Miss De la Riva to come down from the ABS Studio, and that they
had planned to abduct and rape her. Appellant Caal admitted that all four of them participated in
the commission of the crime, but he would make it appear that insofar as he was concerned the
complainant yielded her body to him on condition that he would release her. Pineda executed a
statement (Exh. "J") stating that he and his other three companions wept to the ABS Studio, and
that, on learning that Miss De la Riva was there, they made plans to wait for her and to follow her.
He admitted that his group followed her car and snatched her and took her to the Swanky Hotel.
He would make it appear, however, that the complainant voluntarily acceded to having sexual
intercourse with him.
In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple contusions and bruises
on different parts of the complainant's body, as well as of genital injuries. On the witness stand the
doctor was shown several photographs of the complainant taken in his presence and under his
supervision. With the aid of the photographs and the medical reports, the doctor explained to the
court that he found contusions or bruises on the complainant's chest, shoulders, arms and fore-
arms, right arm index finger, thighs, right knee and legs. He also declared that when he was
examining her, Miss De la Riva complained of slight tenderness around the neck, on the
abdominal wall and at the sites of the extragenital physical injuries, and that on pressing the said
injuries, he elicited a sigh of pain or tenderness on the part of the subject. The injuries, according
to Dr. Brion, could have been caused blows administered by a closed fist or by the palm of the
hand, and could have been inflicted on the subject while she was being raped. It was the doctor's
opinion that they could have been sustained on or about June 26, 1967. In connection with the
genital examination, the doctor declared that he found injuries on the subject's genitalia which
could have been produced by sexual intercourse committed on June 26, 1967. He said that he
failed to find spermatozoa. He explained, however, that spermatozoa are not usually found in the
vagina after the lapse of three days from the last intercourse, not to mention the possibility that the
subject might have douched herself.
The three appellants who pleaded not guilty (Jose, Aquino and Caal) took the witness stand. We
quote hereunder the portions of the decision under review relative to the theory of the defense:
Their story is that they and their co-accused Pineda had gone to the Ulog Cocktail Lounge
somewhere in Mabini street in Manila, and there killed time from 9:30 in the evening of June 25
until closing time, which was about 3:30 in the early morning of the next day. At the cocktail
lounge they had listened to the music while enjoying some drinks. Between them they had
consumed a whole bottle of whisky, so much so that at least Aquino became drunk, according to
his own testimony. They had been joined at their table by a certain Frankie whom they met only
that night. Come time to go home, their new acquaintance asked to be dropped at his home in
Cubao. The five men piled into the red-bodied, black topped two-door convertible Plymouth
(Pontiac) car of Jaime Jose, and with Pineda at the wheel repaired to Cubao After dislodging their
new friend, Pineda steered the car to Espaa Extension to bring Aquino to his home in Mayon
Street. But somewhere in Espaa Extension before the Rotonda a small car whizzed to them
almost hitting them. They saw that the driver was a woman. Pineda gave chase and coming abreast
of the small car he shouted, "Putang ina mo, kamuntik na kaming mamatay." The woman
continued on her way. Now Pineda saying "let us teach her a lesson," sped after her and when she
swerved ostensibly to enter a gate, Pineda stopped his car behind being hurriedly got down,
striding to the small car, opened the door and started dragging the girl out. Both Jose and Aquino
confirm the presence of another woman inside the girl's car, who helped the girl struggle to get
free from Pineda's grip; and that the struggle lasted about ten minutes before Pineda finally
succeeded in pushing the girl into the red convertible. All the three accused insist they did nothing
to aid Pineda: but they also admit that they did nothing to stop him.
Now the defense contends that Pineda cruised around and around the area just to scare the girl
who was in truth so scared that she begged them to let her be and return her to her home. She
turned to Jose in appeal, but this one told her he could net do anything as the "boss" was Pineda.
Aquino heard her plead with Jose "do you not have a sister yourself?" but did not bear the other
plea 'do you not have a mother?' Then Pineda stopped at the corner of the street where he had
forcibly snatched the girl presumably to return her, but then suddenly changing his mind he said,
'why don't you do a strip tease for us. I'll pay you P1,000.00 and the girl taunted, 'are you
kidding?': that after a little while she consented to do the performance as long as it would not last
too long and provided the spectators were limited to the four of them.
Pineda sped the car until they got to Swanky Hotel where he and Maggie alighted first, but not
before Maggie had borrowed a handkerchief from one of them to cover her face as she went up the
Hotel. The three followed, and when they saw the pair enter a room, they quickly caught up. All
the three accused testify that as soon as they got into the room, Maggie de la Riva asked the boys
to close the windows before she. undressed in front of them. They themselves also removed their
clothing. Two of them removed their pants retaining their briefs, while Boy Pineda and Caal
stripped to the skin "because it was hot." The three accused declared that they saw Boy Pineda
hand P100.00 to Maggie and they heard him promise her that he would pay the balance of
P900.00 later. Whereupon, the show which lasted about 10 minutes began with the naked girl
walking back and forth the room about 4 to 5 times. This accomplished, all of them dressed up
once more and the three accused (Jaime Jose, Eduardo Aquino and Rogelio Caal) left the room to
wait in the car for Boy Pineda and Maggie de la Riva who were apparently still discussing the
mode of payment of the balance. Three minutes later Maggie de la Riva and Boy Pineda joined
them. Now, the question of how and where to drop Maggie came up and it is testified to by the
accused that it was Maggie's idea that they should drop her near the ABS Studio so that it would
appear as if she had just come from her work.
Jaime Jose was picked by the police on the morning of June 29 along Buendia Avenue. Aquino
testifies how, on June 29 Pineda went to him with a problem. He did not have the P900.00 with
which to pay Maggie the balance of her "show" and he was afraid that if he did not pay, Maggie
would have her goons after him. He wanted Aquino to go with him to Lipa City where he had
relatives and where he could help raise the money. Aquino readily obliged, and to make the
company complete they invited Caal to join them. They used another car of Jaime Jose, different
from the one they had used the day before. At Lipa, Aquino detached himself from his
compassions and proceeded alone to the barrio allegedly to visit his relatives. In the meantime his
two companions had remained in the City and had, according to Canal, gone to live in a house
very close to the municipal hall building. They later moved to another house where the PC and
Quezon City police posse found and arrested them. Aquino was the last to be apprehended, when
having read in the newspapers that he was wanted, he surrendered on July 5 to Mrs. Aurelia
Leviste, wife of the governor of Batangas.
The striptease-act-for-a-fee story on which the defense theory is anchored, defies one's credulity
and reason, and had utterly to counteract the evidence for the prosecution, particularly the
complainant's testimony and Dr. Brion's medical report and testimony. We quote with approval the
able dissertion of the trial judge on this point:
As main defense in the charge of rape, the three accused advance the proposition that nothing
happened in Swanky Hotel except a strip-tease exhibition which the complaint agreed to do for
them for fee of P1,000.00, P100.00 down and the balance to be paid "later." The flaw in this
connection lies in its utter inverisimilitude. The Court cannot believe that any woman exists, even
one habitual engaged in this kind of entertainment (which Maggie de la Riva has not been proven
to be) who would consent (and as easily and promptly as defense claims) to do a performance, not
even for all money in the worlds after the rough handling she experienced from these wolves in
men's clothing who now hungered for a show. There is no fury to match a woman stirred to
indignation. A woman's pride is far stronger than her yen for money, and her revenge much more
keen. The Court cannot believe that after the rudeness and meanness of these men to her, Maggie
would in so short an interval of time forget her indignation and so readily consent to satisfy their
immoral curiosity about her. The woman in her would urge her to turn the men's hankering as a
weapon of revenge by denying them their pleasure.
Besides, the manner of payment offered for the performance is again something beyond even the
wildest expectations. Assuming that the woman whom the accused had abducted was in this kind
of trade assuming that the price offered was to her satisfaction, whom woman would be willing to
perform first and be paid later? It is simply preposterous to believe that Maggie de la Riva should
have consent to do a striptease act for a measly down-payment of P100.00 and the balance to be
paid God knows when. Since when are exposition of the flesh paid on the installment basis? By
the very precautious nature of their pitiful calling, women who sell their attractions are usually
very shrewed and it is to be expected that they could demand full payment before curtain call.
How was Maggie to collect later when she did not even know who these man were, where they
lived, whether they could be trusted with a promise to pay later (!) whether she could ever find
them again? If there is anything that had struck the Court about the complaint, it is her courage,
her intelligence and her alertness. Only a stupid woman, and a most stupid one that, could have
been persuaded to do what the defense want this Court to believe Maggie de la Riva consented to
do.
Finally, it is odd that not one of these men should have mentioned this circumstances during their
interview with anyone, either the press, their police interrogator, the person who negotiated their
surrender (as in the case of Aquino) or even their counsel. One cannot escape the very strong
suspicion that this story is a last ditch, desperate attempt to save the day for the accused. It truly
underscores the hopelessness of their stand and projects all the more clearly their guilt.
Then there is the incident of the men's stripping themselves. Why was there need for this? The
Court realizes that in its desperate need of an explanation for Maggie's positive identification of
Caal as the man with the tattoo mark on his right buttock, the defense concocted the sickeningly
incident story that the four men removed their underclothing in the presence of a woman simply
"because it was hot." What kind of men were these who were so devoid of any sense of decency
that they thought nothing of adding insult to injury by not only inducing a woman a strip before
them, but for forcing her to perform before a naked audience? And then they have gall to argue
that "nothing" happened. For males of cold and phlegmatic blood and disposition it could be
credible, but not for men of torrid regions like ours where quick passions and hot tempers are the
rule rather than the exception!
All of these consideration set aside, notwithstanding, it is quite obvious that the version of the
defense has not been able to explain away a very vital piece of evidence of prosecution which, if
unexplained, cannot but reduce any defense unavailing. The result of the physical (external and
internal) examination conducted on the person of Maggie de la Riva in the afternoon of June 29,
the pertinent findings of which quoted earlier in this decision, establish beyond doubt that at the
time that Maggie de la Riva was examined she bore on her body traces of physical and sexual
assault.
The only attempt to an explanation made by the defense is either one of the following: (1) the
insinuation that when Maggie de la Riva and Boy Pineda were left behind in the hotel room the
bruises and the sexual attack could have taken place then. But then, the defense itself says that
these two persons rejoined the three after three or four minutes! It is physically impossible, in such
a short time, for Boy Pineda to have attacked the girl and inflicted on her all of these injuries; (2)
it was suggested by the defense that Maggie de la Riva could have inflicted all of those injuries
upon herself just to make out a case against the accused. The examining physician rules out this
preposterous proposition, verily it does not take much stretch of the imagination to see how utterly
impossible this would be, and for what purpose? Was P900.00 which she had failed to collect
worth that much self-torture? And what about all the shame, embarrassment and publicity she
would (as she eventually did) expose herself to? If she really had not been raped would she have
gone thru all of these tribulation?
A woman does not easily trump up rape charges for she has much more to lose in the notoriety the
case will reap her, her honor and that of her family, than in the redress she demands (Canastre 82-
480; Medina, C.A. 1943 O.G. 151; Medina y Puno, CA O.G. 338; CA 55 O.G. 7666; Galamito, L-
6302, August 25, 1954); (3) it could also be argued that the contusions and bruises could have
been inflicted on Maggie during her struggle with Pineda when the latter pulled and pushed her
into the red convertible car. The telltale injuries, however, discount this possibility, for the location
in which many of the bruises and traumas were located (particularly on the inner portion of her
thighs) could not have been cause by any struggle save by those of a woman trying to resists the
brutal and bestial attack on her honor.
In their Memorandum the accused contend that Maggie's sole and uncorroborated testimony
should not be rated any credence at all as against the concerted declaration of the the accused. In
the first place, it is not correct to say that Maggie's declaration was uncorroborated she has for
corroboration nothing less than the written extra-judicial statements of Jose and Canal. But even
assuming that Maggie stood alone in her statements, the cases cited by the accused in their
Memorandum notwithstanding which the Court does not consider in point anyway, jurisprudence
has confirmed the ruling that numbers is the least vital element in gauging the weight of evidence.
What is more important is which of the declarations is the more credible, the more logical, the
more reasonable, the more prone to be biased or polluted. (Ricarte 44 OG 2234; Damian CA-GR
No. 25523, April 24, 1959). Besides, it should be borne in maid that in the most detestable crime
of rape in which a man is at his worst the testimony of the offended party most often is the only
one available to prove directly its commission and that corroboration by other eyewitnesses would
in certain cases place a serious doubt as to the probability of its commission, so trial courts of
justice are most often placed in a position of having to accept such uncorroborated testimony if the
same is in regards conclusive, logical and probable (Landicho, VIII ACR 530).
We shall now consider the points raised by the appellants in their briefs.
1. Appellants Jose, Aquino and Caal deny having had anything to do with the abduction of
Miss De la Riva. They point to Pineda (who entered a plea of guilty) as the sole author thereof, but
they generously contend that even as to him the act was purged at any taint of criminality by the
complainant's subsequent consent to perform a striptease show for a fee, a circumstance which, it
is claimed, negated the existence of the element of lewd design. This line of defense has evidently
leg no to stand on. The evidence is clear and overwhelming that all the appellants participated in
the forcible abduction. Miss De la Riva declared on the witness stand, as well as in her sworn
statements, that they helped one another in dragging her into the car against her will; that she did
not know them personally; that while inside the car, Jose and Aquino, between whom she was
seated, toyed with her body, the former forcing his lips on hers, and the latter touching her thighs
and raising her skirt; that meaningful and knowing glances were in the meanwhile being
exchanged among the four; and that all of them later took turns in ravishing her at the Swanky
Hotel. This testimony, whose evidentiary weight has not in the least been overthrown by the
defense, more than suffices to establish the crimes charged in the amended complaint. In the light
thereof, appellants' protestation that they were not motivated by lewd designs must be rejected as
absolutely without factual basis.
2. The commission of rape by each of the appellants has, as held by the court below, likewise
been clearly established. Jose, Aquino and Canal contend that the absence of semen in the
complainant's vagina disproves the fact of rape. The contention is untenable. Dr. Brion of the NBI,
who testified as an expert, declared that semen is not usually found in the vagina after three days
from the last intercourse, especially if the subject has douched herself within that period. In the
present case, the examination was conducted on the fourth day after the incident, and the
complainant had douched herself to avoid infection and pregnancy. Furthermore, the absence of
spermatozoa does not disprove the consummation of rape, the important consideration being, not
the emission of semen, but penetration (People vs Hernandez, 49 Phil., 980). Aquino's suggestion
that the abrasions on the cervix were caused by the tough tip of a noozle deliberately used by the
complainant to strengthen her alleged fabricated tale of rape, is absurd, if not cruel. It is difficult to
imagine that any sane woman, who is single and earning as much Miss Dela Riva did, would
inflict injuries on her genital organ by puncturing the same with a sharply-pointed instrument in
order to strike back at four strangers who allegedly would not pay her the sum of P900.00 due her
for a striptease act. Besides, Dr. Brion testified that the insertion of such an instrument in the
genital organ would not result in the kind of injuries he found in the mucosa of the cervix.
3. Other evidence and considerations exist which indubitably establish the commission of
successive rapes by the four appellants. Upon Miss De la Riva's arrival at her house in the
morning of June 26, 1967, she immediately told her mother, " Mommy Mommy, I have been
raped. All four of them raped me." This utterance, which is part of the res gestae, commands
strong probative value, considering that it was made by the complainant to her mother who, in
cases of this nature was the most logical person in whom a daughter would confide the truth.
Aquino and Canal would make capital of the fact that Miss De la Riva stated to the reporters on
the morning of June 26, that she was not abused. Her statement to the press is understandable. At
that time the complainant, who had not yet consulted her family on a matter which concerned her
reputation as well as that of her family, and her career, was not then in a position to reveal publicly
what had happened to her. This is one reason why the complainant did not immediately inform the
authorities of the tragedy that befell her. Another reason is that she was threatened with
disfiguration. And there were, of course, the traumas found by Dr. Brion on different parts of the
complainant's body. Could they, too, have been self-inflicted? Or, as suggested, could they
possibly have been inflicted by appellant Pineda alone, when the story given by the other three is
that Pineda and the complainant were left in the hotel room for only three or four minutes, and that
they came out to join them in what they would picture to be a cordial atmosphere, the complainant
even allegedly suggesting that she be dropped on a spot where people would reasonably presume
her to have come from a studio? Equally important is the complainant's public disclosure of her
tragedy, which led to the examination of her private parts and lay her open to risks of future public
ridicule and diminution of popularity and earnings as a movie actress.
4. Jose and Canal seek the exclusion of their extrajudicial statements from the mass of evidence
on the grounds that they were secured from them by force and intimidation, and that the
incriminating details therein were supplied by the police investigators. We are not convinced that
the statements were involuntarily given, or that the details recited therein were concocted by the
authorities. The statements were given in the presence of several people and subscribed and sworn
to before the City Fiscal of Quezon City, to whom neither of the aforesaid appellants intimated the
use of inordinate methods by the police. They are replete with details which could hardly be
known to the police; and although it is suggested that the authorities could have secured such
details from their various informers, no evidence at all was presented to establish the truth of such
allegation. While in their statements Jose and Canal admitted having waited together with the
two other appellants for Miss De la Riva at the ABS Studio, each of them attempted in the
same statements to exculpate himself: appellant Jose stated that only Pineda and Aquino
criminally abused the complainant; while appellant Canal would make it appear that the
complainant willingly allowed him to have sexual intercourse with her. Had the statements been
prepared by the authorities, they would hardly have contained matters which were apparently
designed to exculpate the affiants. It is significant, too, that the said two appellants did not see it fit
to inform any of their friends or relatives of the alleged use of force and intimidation by the police.
Dr. Mariano Nario of the Quezon City Police Department, who examined appellant Canal after the
latter made his statement, found no trace of injury on any part of the said appellant's body in spite
of the claims that he was boxed on the stomach and that one of his arms was burned with a
cigarette lighter. In the circumstances, and considering, further, that the police officers who took
down their statements categorically denied on the witness stand that the two appellants were
tortured, or that any detail in the statements was supplied by them or by anyone other than the
affiants themselves, We see no reason to depart from the trial court's well-considered conclusion
that the statements were voluntarily given. However, even disregarding the in-custody statements
of Jose and Canal, We find that the mass of evidence for the prosecution on record will suffice to
secure the conviction of the two.
The admissibility of his extrajudicial statements is likewise being questioned by Jose on the other
ground that he was not assisted by counsel during the custodial interrogations. He cites the
decisions of the Supreme Court of the United States in Messiah vs. U.S. (377 U.S. 201), Escobedo
vs. Illinois (378 U.S. 478) and Miranda vs. Arizona (384 U.S. 436).
The provision of the Constitution of the Philippines in point is Article III (Bill of Rights), Section
1, par. 17 of which provides: "In all criminal prosecutions the accused shall ... enjoy the right to be
heard by himself and counsel ..." While the said provision is identical to that in the Constitution of
the United States, in this jurisdiction the term criminal prosecutions was interpreted by this Court,
in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection with a similar provision in the Philippine
Bill of Rights (Section 5 of Act of Congress of July 1, 1902) to mean proceedings before the trial
court from arraignment to rendition of the judgment. Implementing the said constitutional
provision, We have provided in Section 1, Rule 115 of the Rules of Court that "In all criminal
prosecutions the defendant shall be entitled ... (b) to be present and defend in person and by
attorney at every stage of the proceedings, that is, from the arraignment to the promulgation of the
judgment." The only instances where an accused is entitled to counsel before arraignment, if he so
requests, are during the second stage of the preliminary investigation (Rule 112, Section 11) and
after the arrest (Rule 113, Section 18). The rule in the United States need not be unquestioningly
adhered to in this jurisdiction, not only because it has no binding effect here, but also because in
interpreting a provision of the Constitution the meaning attached thereto at the time of the
adoption thereof should be considered. And even there the said rule is not yet quite settled, as can
be deduced from the absence of unanimity in the voting by the members of the United States
Supreme Court in all the three above-cited cases.
5. Appellant Pineda claims that insofar as he is concerned there was a mistrial resulting in gross
miscarriage of justice. He contends that because the charge against him and his co-appellants is a
capital offense and the amended complaint cited aggravating circumstances, which, if proved,
would raise the penalty to death, it was the duty of the court to insist on his presence during all
stages of the trial. The contention is untenable. While a plea of guilty is mitigating, at the same
time it constitutes an admission of all the material facts alleged in the information, including the
aggravating circumstances, and it matters not that the offense is capital, for the admission (plea of
guilty) covers both the crime and its attendant circumstances qualifying and/or aggravating the
crime (People vs. Boyles, et al., L-15308, May 29, 1964, citing People vs. Ama, L-14783, April
29, 1961, and People vs. Parete, L-15515, April 29, 1961). Because of the aforesaid legal effect of
Pineda's plea of guilty, it was not incumbent upon the trial court to receive his evidence, much less
to require his presence in court. It would be different had appellant Pineda requested the court to
allow him to prove mitigating circumstances, for then it would be the better part of discretion on
the part of the trial court to grant his request. (Cf. People vs. Arconado, L-16175, February 28,
1962.) The case of U.S. vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for there this
Court ordered a new trial because it found for a fact that the accused, who had pleaded guilty, "did
not intend to admit that he committed the offense with the aggravating circumstances" mentioned
in the information. We are not in a position to make a similar finding here. The transcript of the
proceedings during the arraignment shows that Pineda's counsel, Atty. Lota prefaced his client's
plea of guilty with the statement that .
I have advised him (Pineda) about the technicalities in plain simple language of the contents of
aggravating circumstances and apprised him of the penalty he would get, and we have given said
accused time to think. After a while I consulted him for three times and his decision was still
the same.
Three days after the arraignment, the same counsel stated in court that he had always been averse
to Pineda's idea of pleading guilty, because "I know the circumstances called for the imposition of
the maximum penalty considering the aggravating circumstances," but that he acceded to his
client's wish only after the fiscal had stated that he would recommend to the court the imposition
of life imprisonment on his client. To be sure, any such recommendation does not bind the Court.
The situation here, therefore, is far different from that obtaining in U.S. vs. Agcaoili, supra.
6. Two of the appellants Jose and Caal bewail the enormous publicity that attended the
case from the start of investigation to the trial. In spite of the said publicity, however, it appears
that the court a quo was able to give the appellants a fair hearing. For one thing, three of the seven
(7) original accused were acquitted. For another thing, Jose himself admits in his brief that the
Trial Judge "had not been influenced by adverse and unfair comments of the press, unmindful of
the rights of the accused to a presumption of innocence and to fair trial."
We are convinced that the herein four appellants have conspired together to commit the crimes
imputed to them in the amended information quoted at the beginning of this decision. There is no
doubt at all that the forcible abduction of the complainant from in front of her house in Quezon
City, was a necessary if not indispensable means which enabled them to commit the various and
the successive acts of rape upon her person. It bears noting, however, that even while the first act
of rape was being performed, the crime of forcible abduction had already been consummated, so
that each of the three succeeding (crimes of the same nature can not legally be considered as still
connected with the abduction in other words, they should be detached from, and considered
independently of, that of forcible abduction and, therefore, the former can no longer be complexed
with the latter.
What kind of rape was committed? Undoubtedly, it is that which is punishable by the penalty of
reclusion perpetua to death, under paragraph 3, Article 335, as amended by Republic Act No. 4111
which took effect on June 20, 1964, and which provides as follows:
ART. 335. When and how rape committed.Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof, the penalty shall be likewise death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be
death.
As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes
committed, the latter is definitely the more serious; hence, pursuant the provision of Art. 48 of the
Revised Penal Code, the penalty prescribed shall be imposed in its maximum period.
Consequently, the appellants should suffer the extreme penalty of death. In this regard, there is
hardly any necessity to consider the attendance of aggravating circumstances, for the same would
not alter the nature of the penalty to be imposed.
Nevertheless, to put matters in their proper perspective and for the purpose of determining the
proper penalty to be imposed in each of the other three crimes of simple rape, it behooves Us to
make a definite finding in this connection to the effect that the commission of said crimes was
attended with the following aggravating circumstances: (a) nighttime, appellants having purposely
sought such circumstance to facilitate the commission of these crimes; (b) abuse of superior
strength, the crime having been committed by the four appellants in conspiracy with one another
(Cf. People vs. De Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the appellants in
ordering the complainant to exhibit to them her complete nakedness for about ten minutes, before
raping her, brought about a circumstance which tended to make the effects of the crime more
humiliating; and (d) use of a motor vehicle. With respect to appellants Jose, Aquino and Ca__al,
none of these aggravating circumstances has been offset by any mitigating circumstance.
Appellant Pineda should, however, be credited with the mitigating circumstance of voluntary plea
of guilty, a factor which does not in the least affect the nature of the proper penalties to be
imposed, for the reason that there would still be three aggravating circumstances remaining. As a
result, appellants should likewise be made to suffer the extreme penalty of death in each of these
three simple crimes of rape. (Art. 63, par. 2, Revised Penal Code.)
In refusing to impose as many death penalties as there are offenses committed, the trial court
applied by analogy Article 70 of the Revised Penal Code, which provides that "the maximum
duration of all the penalties therein imposed upon the appellant shall not be more than threefold
the length of time corresponding to the most severe of the penalties imposed upon the appellant,
which should not exceed forty years." The said court is of the opinion that since a man has only
one life to pay for a wrong, the ends of justice would be served, and society and the victim would
be vindicated just as well, if only one death penalty were imposed on each of the appellants.
We cannot agree with the trial court. Article 70 of the Revised Penal Code can only be taken into
account in connection with the service of the sentence imposed, not in the imposition of the
penalty (People vs. Escares, 55 Off. Gaz., 623). In holding that only one death penalty should be
imposed because man has only one life, the trial court ignored the principle enunciated in the very
case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in affirming the judgment of
the trial court, found the accused guilty of two murders and one homicide and imposed upon him
two death sentences for the murders and a prison term for the homicide. In not applying the said
principle, the court a quo said that the case of Balaba is different from the present case, for while
in the former case the accused was found to have committed three distinct offenses, here only one
offense is charged, even if complex. As We have explained earlier herein, four crimes were
committed, charged and proved. There is, therefore, no substantial difference between the two
cases insofar as the basic philosophy involved is concerned, for the fact remains that in the case of
Balaba this Court did not hesitate to affirm the two death sentences imposed on the accused by the
trial court. In People vs. Peralta, et al., L-19060, October 29, 1968, in which this Court imposed
on each of the six accused three death penalties for three distinct and separate crimes of murder,
We said that "since it is the settled rule that once conspiracy is established, the act of one
conspirator is attributable to all, then each conspirator must be held liable for each of the felonious
acts committed as a result of the conspiracy, regardless of the nature and severity of the
appropriate penalties prescribed by law." In the said case (which was promulgated after the
decision of the court a quo had been handed down) We had occasion to discuss at length the
legality and practicality of imposing multiple death penalties, thus:
The imposition of multiple death penalties is decried by some as a useless formality, an exercise in
futility. It is contended, undeniably enough, that a death convict, like all mortals, has only one life
to forfeit. And because of this physiological and biological attribute of man, it is reasoned that the
imposition of multiple death penalties is impractical and futile because after the service of one
capital penalty, the execution of the rest of the death penalties will naturally be rendered
impossible. The foregoing opposition to the multiple imposition of death penalties suffers from
four basic flaws: (1) it fails to consider the legality of imposing multiple capital penalties; (2) it
fails to distinguish between imposition of penalty and service of sentence; (3) it ignores the fact
that multiple death sentences could be served simultaneously; and (4) it overlooks the practical
merits of imposing multiple death penalties.
The imposition of a penalty and the service of a sentence are two distinct, though related,
concepts. The imposition of the proper penalty or penalties is determined by the nature, gravity
and number of offenses charged and proved, whereas service of sentence is determined by the
severity and character of the penalty or penalties imposed. In the imposition of the proper penalty
or penalties, the court does not concern itself with the possibility or practicality of the service of
the sentence, since actual service is a contingency subject to varied factors like the successful
escape of the convict, grant of executive clemency or natural death of the prisoner. All that go into
the imposition of the proper penalty or penalties, to reiterate, are the nature, gravity and number of
the offenses charged and proved and the corresponding penalties prescribed by law.
Multiple death penalties are not impossible to serve because they will have to be executed
simultaneously. A cursory reading of article 70 will show that there are only two moves of serving
two or more (multiple) penalties: simultaneously or successively. The first rule is that two or more
penalties shall be served simultaneously if the nature of the penalties will so permit. In the case of
multiple capital penalties, the nature of said penal sanctions does not only permit but actually
necessitates simultaneous service.
The imposition of multiple death penalties, far from being a useless formality, has practical
importance. The sentencing of an accused to several capital penalties is an indelible badge of his
extreme criminal perversity, which may not be accurately projected by the imposition of only one
death sentence irrespective of the number of capital felonies for which he is liable. Showing thus
the reprehensible character of the convict in its real dimensions, the possibility of a grant of
executive clemency is justifiably reduced in no small measure. Hence, the imposition of multiple
death penalties could effectively serve as deterrent to an improvident grant of pardon or
commutation. Faced with the utter delinquency of such a convict, the proper penitentiary
authorities would exercise judicious restraint in recommending clemency or leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon
(one of the presidential prerogatives which is almost absolute) deems it proper to commute the
multiple death penalties to multiple life imprisonments, then the practical effect is that the convict
has to serve the maximum forty (40) years of multiple life sentences. If only one death penalty is
imposed, and then is commuted to life imprisonment, the convict will have to serve a maximum of
only thirty years corresponding to a single life sentence.
We are, therefore, of the opinion that in view of the existence of conspiracy among them and of
our finding as regards the nature and number of the crimes committed, as well as of the presence
of aggravating circumstances, four death penalties should be imposed in the premises.
Before Us is a petition for intervention filed by Filipinas Investment & Finance Corporation
asking for reversal of that portion of the judgment of the court below ordering the confiscation of
the car used by the appellants in abducting the complainant. The aforesaid car is a 1965 two-door
Pontiac sedan with Motor No. WT-222410, Serial No. 2376752110777, Plate No. H-33284, File
No. 11584171, alleged by the intervenor to be in the custody of Major Ernesto San Diego of the
Quezon City Police Department. The car is registered in the name of Mrs. Dolores Gomez.
On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant Jaime G. Jose, bought the car from
the Malayan Motors Corporation and simultaneously executed a chattel mortgage thereon to
secure payment of the purchase price of P13,200, which was stipulated to be payable in 24
monthly installments of P550 beginning May 4, 1967 up to April 4, 1969. The mortgage was duly
registered with the Land Transportation Commission and inscribed in the Chattel Mortgage
Registry. The mortgage lien was annotated on the motor registration certificate. On April 17, 1967,
for value received and with notice to Mrs. Gomez, the Malayan Motors Corporation assigned its
credit against Mrs. Gomez, as well as the chattel mortgage, to the intervenor. The assignment was
duly registered with the Land Transportation Commission and annotated on the registration
certificate.
Mrs. Gomez failed to pay any of the installments due, in view of which the intervenor filed on
July 5, 1967, an action for replevin against her (Civil Case No. 69993, Court of First Instance of
Manila) as a preliminary step to foreclosure of the chattel mortgage. On July 7, 1967, the court
issued an order for the seizure of the car. The sheriff, however, could not enforce the writ of
replevin because the car was not in Mrs. Gomez' possession, the same having been used by her
son, appellant Jaime G. Jose, together with the other appellants in this case, in the abduction of
Miss De la Riva, as a result of which the car was seized by the Quezon City police and placed in
the custody of Major San Diego, who refused to surrender it to the sheriff on the ground that it
would be used as evidence in the trial of the criminal case.
During the pendency of that criminal case in the court below, or on July 26, 1967, the intervenor
filed with the said court a petition for intervention. The said petition was not, however, acted upon.
On October 2, 1967, the trial court rendered its judgment in the present case ordering the car's
confiscation as an instrument of the crime. Although not notified of the said decision, the
intervenor filed, on October 17, 1967, a motion for reconsideration of the order of confiscation;
but the same was denied on October 31, 1967, on the ground that the trial court had lost
jurisdiction over the case in view of the automatic elevation thereof to this Court. The intervenor
then filed a petition for relief from judgement, but the same was also denied.
On February 5, 1968, judgement was rendered in the replevin case ordering Mrs. Gomez to deliver
the car to the intervenor so that the chattel mortgage thereon could be foreclosed, or, in the
alternative, to pay the intervenor the sum of P13,200 with interest thereon at 12% per annum from
July 5, 1968, the premium bond, attorney's fees, and the costs of suit. The judgment became final
and executory. Attempts to execute the judgment against the properties of Mrs. Gomez were
unavailing; the writ of execution was returned by the sheriff unsatisfied. On July 26, 1968, the
present petition for intervention was filed with this Court, which allowed the intervenor to file a
brief. In his brief the Solicitor General contends, among others, that the court a quo having found
that appellant Jose is the owner of the car, the order of confiscation is correct.
Considering that the car in question is registered in the name of Mrs. Dolores Gomez, who, in the
absence of strong evidence to the contrary, must be considered as the lawful owner thereof; that
the only basis of the court a quo in concluding that the said car belongs to appellant Jose were the
latter's statements during the trial of the criminal case to that effect; that the said statement were
not, however, intended to be, nor could constitute, a claim of ownership over the car adverse to his
mother, but were made simply in answer to questions propounded in court for the sole purpose of
establishing the identity of the defendant who furnished the car used by the appellants in the
commission of the crime; that the chattel mortgage on the car and its assignment in the favor of
the intervenor were made several months before the date of commission of the crimes charged,
which circumstance forecloses the possibility of collusion to prevent the State from confiscating
the car; that the final judgement in the replevin case can only be executed by delivering the
possession of the car to the intervenor for foreclosure of the chattel mortgage; and the Article 45
of the Revised Penal Code bars the confiscation and forfeiture of an instrument or tool used in the
commission of the crime if such "be the property of a third person not liable for the offense," it is
the sense of this Court that the order of the court below for confiscation of the car in question
should be set aside and that the said car should be ordered delivered to the intervenor for
foreclosure as decreed in the judgment of the Court of First Instance of Manila in the replevin
case, Civil Case No. 69993.
Before the actual promulgation of this decision, this Court received a formal manifestation on the
part of the Solicitor General to the effect that Rogelio Caal, one of the herein appellants, died in
prison on December 28, 1970. As a result of this development, this case is hereby dismissed as to
him alone, and only insofar as his criminal liability is concerned, with one-fourth (1/4) of the costs
declared de oficio.
WHEREFORE, the judgment under review is hereby modified as follows: appellants Jaime G.
Jose, Basilio Pineda, Jr., and Edgardo P. Aquino are pronounced guilty of the complex crime of
forcible abduction with rape, and each and every one of them is likewise convicted of three (3)
other crimes of rape. As a consequence thereof, each of them is hereby sentenced to four (4) death
penalties; all of them shall, jointly and severally, indemnify the complainant of the sum of
P10,000.00 in each of the four crimes, or a total of 40,000.00; and each shall pay one-fourth (1/4)
of the costs.
Insofar as the car used in the commission of the crime is concerned, the order of the court a quo
for its confiscation is hereby set aside; and whoever is in custody thereof is hereby ordered to
deliver its possession to intervenor Filipinas Investment & Finance Corporation in accordance
with the judgment of the Court of First Instance of Manila in Civil Case No. 69993 thereof.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Villamor and
Makasiar, JJ., concur.
Barredo and Teehankee, JJ., took no part.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-50276 January 27, 1983
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
MICHAEL J. BUTLER, accused-appellant.
Manuel B. Tomacruz for accused-appellant.
GUERRERO, J.:
This is an automatic review of the Judgment of the Court of First Instance of Zambales, Third
Judicial District, Branch I, finding the accused Michael J. Butler in Criminal Case No. 2465 guilty
beyond reasonable doubt of the crime of murder qualified by abuse of superior strength, with the
attendance of aggravating circumstances of treachery and scoffing at the corpse of the deceased,
without any mitigating circumstance and sentencing the accused with the penalty of death, and
ordering him to indemnify the heirs of the victim with the sum of P24,000.00.
In an Information dated October 16, 1975, accused-appellant Michael J. Butler was charged with
the crime of murder committed as follows:
That on or about the 8th day of August, 1975, in the City of Olongapo, Philippines. and within the
jurisdiction of this Honorable Court the above-named accused, with intent to kill and taking
advantage o his superior strength, did then and there wilfully, unlawfully and feloniosly assault,
attack and hit with a statue of Jesus Christ oue Enriquita Alipo alias 'Gina Barrios' and after said
Enriquita Alipo fell flat on her fare the above-named, accused again taking advantage of superior
strength then and there apply force and pressure on the back of the head of said Enriquita Alipo
thereby forcing and sinking the latter's mouth and nose against the mattress of the bed, and as a
result thereof, the said Enriquita Alipo was not able to breathe and was choked, thus directly
causing the death of said Enriquita Alipo alias 'Gina Barrios'.
Upon arraignment, accused-appellant pleaded not guilty, hence the trial was conducted and at the
termination of which, judgment of conviction was rendered.
It appears from the records of the case that on August 7, 1975, at about 10:30 p.m., accused-
appellant Michael Butler and the victim, Enriquita Alipo alias Gina Barrios were together at
Colonial Restaurant in Olongapo City. They were seen together by Lilia Paz, and entertainer and
friend of the victim, who claimed to have had a small conversation with the accused, and by one
Rosemarie Juarez, also a friend of the victim. At about 1:00 of the same evening, the accused and
the victim left the said restaurant, 1 after the latter invited Rosemarie Juarez to come to her house
that night.
Emelita Pasco, the housemaid of the victim, testified that, at about 11:30 p.m. or so of August 7,
1975, her mistress (Gina Barrios) came home with the accused-appellant. As soon as she opened
the door for them, the victim and accused-appellant immediately entered the victim's bedroom.
Shortly thereafter, the victim left her bedroom holding an Id card and a piece of paper, and on the
piece of paper, the victim purportedly wrote the following words: MICHAEL J. BUTLER, 44252-
8519 USS HANCOCK. Said words were copied from the ID Card.
Pasco testified that the victim said she was copying the name of the accused because she knew he
would not be going back to her. Then she rushed back to her bedroom after instructing Pasco to
wake her up the following morning. 2 Before retiring, however, the victim's friend, Rosemarie
Juarez, came to the former's house and after having a small conversation, also left.
The following day, August 8, 1975, at about 4:00 a.m., Pasco rose to wake her mistress as
instructed. She knocked at the door. She found that the victim was lying on her bed, facing
downward, naked up to the waist, with legs spread apart, with a broken figurine beside her head.
Immediately, Pasco called the landlord and they called the authorities. 3
Patrolman Rudyard de los Reyes of the Olongapo Police Department arrived together with Fiscal
Llamado and Corporal Sobrepea at about 6.00 a.m. of August 8, 1975. Pasco informed Patrolman
de los Reyes that the accused Butler slept with the victim the previous night, and the former gave
the latter the piece of paper where the name of the accused was written.
Sergeant Galindo of the Olongapo Police Department handed over to Jesus Bensales, a fingerprint
technician of the Police Department, a piece of cellophane together with the broken figurine for
latent print examination. The latent print examination report (Exh. E4) showed that there were
three (3) fragmentary latent prints that were lifted from the cellophane wrapping of the figurine.
But only one print was clear and distinguishable. This particular print was found Identical with the
accused's left middle fingerprint on thirteen (13) points. Bensales later testified that the latent print
developed from the piece of cellophane belonged to the accused Butler. 4
On the same day, officers of the Olongapo Police Department informed the Naval Investigation
Services Resident Agency (NISRA) in Subic Bay that an American Negro by the name of Michael
J. Butler on board the USS Hancock- was a suspect in a murder case. Jerry Witt and Timothy
Watrous both special agents of NISRA went on board USS Hancock. They informed the legal
officer that one of the crew members was a suspect in a murder case. After being located, the
accused was brought to the legal office of the ship. Witt Identified himself, showed his credentials
and informed the accused that he was a suspect in a murder case. Then Witt informed the accused
of his constitutional rights to remain silent and right to counsel. Then the accused was searched,
handcuffed, and was brought to NISRA office.
Arriving at NISRA office at about 11:00 a.m. of the. same day, the investigation and interrogation
were started . by James Cox NISRA investigator, at about 2:55 p.m. According to Cox's testimony,
before he started the interrogation, he identified himself, informed the accused of his
constitutional rights. At the cross-examination, he stated it took him about 1-1/2 hours to finish the
investigation. The first 45 minutes was accordingly devoted to interrogation, and for the next 45
minutes, he called James Beaver who reduced the oral investigation into writing.
James Cox also testified that after apprising the accused of his constitutional rights to remain
silent and right to counsel he asked the accused if he needed a lawyer and if he understood his
rights (constitutional rights and rights under the military code of justice). The accused accordingly
said he understood his rights and that he did not need a lawyer.
The result of that investigation was thus a document taken from the accused consisting of three (3)
pages, signed and initialed on all pages by him and containing a statement that he was aware of his
constitutional rights, and a narration of the facts that happened on August 7, 1975.
For purposes of clarity the entire text of the waiver of constitutional rights and the extra-judicial
confession containing the narration of facts by the accused appellant (Exhibit H) are reproduced as
follows:
Place- NISRA Subic Bay
I, SA MICHAEL JEROME BUTLER USN 142528519 have been advised by Special Agent(s) JN
COX and JJ CREATURO that I am suspected of MURDER OF GINA BARRIOS ALSO
KNOWN AS ENRIQUETA ALIPO FILIPINA NATIONAL AND THE USE DANGEROUS
DRUGS. I have also been advised:
MJB (1) That I have the right to remain silent and make no statement at all;
MJB (2) That any statement I do make may be used as against me in a trial by Court-Martial;
MJB (3) That I have the right to consult with a lawyer prior to any questioning. This lawyer may
be a civilian lawyer retained by me at my own expense; or, if I wish, Navy/Marine Corps authority
will appoint a Military lawyer to act as my counsel without cost to me;
MJB (4) That I have the right to have such retained civilian lawyer or appointed military lawyer
present during this interview;
MJB (5) That I have the right to terminate this interview at any time for any reason.
MJB I understand my rights as related to me and as set forth above. With that understanding, I
have decided that I do not desire to remain silent, that I do not desire to consult with either a
civilian or military lawyer at this time and I do not desire to have such a lawyer present during this
interview. I make this decision freely and voluntarily and it is made with no threats having been
made or promises extended to me.
(Sgd).
Signature: MICHAEL J. BUTLER
Date and Time: 1502 8 Aug. 1975
1546 hours
Witnessed JN COX SA NIS
JJ CREATURO S/A NIS
Date and Time: 8 August 1975
At this time, I, SA Michael Jerome Butler, 14258519, desire to make the following voluntary
statement. This statement is made with an understanding of my rights as previously related to me
and as set forth above, and it is made with no threats having been made or promises extended to
me. This statement is being typed by YNI James R. BEAVER, USN as I discussed its contents
with Mr. COX and Mr. CREATURO I was born 09-04-57 at Orlando, Florida. I am a black, male
American 6 foot tall and I weigh 155 pounds. I enlisted in the US Navy on 3 February 1975 for
four years. Since 10 June 1975, I have been assigned to the USS HANCOCK (CV-10).
During the evening hours of 7 August 1975, while on liberty, I went to Bob's Tailor Shop in
Olongapo City, R.P. While I was there I talked to a girl and drank some gin and beer and got
drunk. The girl's mm was Victoria PENA There was another girl in the tailor shop and she was
making eyes at me. I walked outside the tailor shop and she followed me and we spoke to each
other. This was sometime after 9 PM She asked me if I wanted to go home with her and I said yes.
We caught a tricycle and went to her house. She paid the man one peso. When we got to the house
another girl let us in. After we got to the house the girl that I was with showed me her health card,
but I couldn't read the name on it. I went upstairs and the girl that I was with showed me the
bedroom which was just to the left at the top of the stairs I went in and sat down on the bed. She
came in and asked me for some money. She told me she was going to screw me. (By this I
understood we were going to engage in sexual intercourse). I gave her approximately 27 pesos.
She left the room and said that she was going to get some cigarettes and would be right back. She
came back later and came into the room, walked out of the room and said something to the girl in
the next room. The two of them came into the bedroom where I was and they were laughing about
something. The other girl then left and the two of us were in the bedroom alone. Both of us got
undressed and I laid down on the bed and went to sleep. I woke up sometime later and she was in
bed with me. At this point I rolled the girl over and made love to her. (By this I mean I engaged in
sexual intercourse with her from the rear ). My intention was to screw her in the vagina. If I
screwed her in the rectum, I didn't intend to. After we finished, I rolled over and went back to
sleep again, Roosters started crowing and I woke up and it was starting to get daylight. The girl
was already awake. I thought that it was time for me to go back to the ship so I told her that I had
to leave. I couldn't find my watch and asked her where it was and she said that the girl in the next
room had it. I was sitting on the bed and I reached down to pull up my sock and I discovered that a
five peso note that I had in my sock was missing. I asked her about it and she said that she had
gotten it. We started arguing about my five pesos and she started saying something to me in the
Filipino language and I told her to speak English. I walked over and looked at her hard and she
wanted to know what I was looking at and I asked her why she took my money. I said 'Ah, fuck it,'
and pushed her down onto the bed. She got off the bed and smacked me and I smacked her back.
She started tussling and acting like she was going to hit me with a karate chop. I thought she was
going to do something dangerous to me so I grabbed her, and we started wrestling on the bed. She
grabbed me by the throat and I picked up a statue of Jesus Christ that was sitting on a bedside
stand and I hit her in the head. She fell flat on her face. I didn't intend to kill the girl but I was mad
and wanted to hurt her. She didn't say anything to me but she was making some kind of groaning
noise. I went in the next room and get my watch, came back in the bedroom, got dressed and left. I
started walking towards the base. I saw the lights of a vehicle coming so I stepped inside of a
building so I wouldn't be caught out after the curfew. As it turned out it was a Marine in a military
truck, I'm not sure if he was with tile Armed Forces Police or the Shore Patrol. The Marine was
white and bald headed and wore a badge. He gave me a ride to the Armed Forces ]Police Station at
the Main Gate, Subic Bay, I then went from there to my ship. I was dressed in civilian clothing
and I had on a pair of burgandy trousers and a blue and white printed shirt. I left these items of
clothing on the top of my bunk located in the 2nd Division berthing area.
When I was with the girl last night, I was drunk from drinking alcohol. I did not take any narcotics
or dangerous drugs because I do not use them. I never did know the girl's name that I was with.
She was a Filipino, approximately 4'11", black hair (long). She wore glasses (tinted). When she
and I engaged in sexual intercourse I reached a climax while my penis was in her. Wen I met her
she was wearing a two-piece fish net top and skirt, they were both purple. This is all I can
remember about what she looked like. I don't know the exact location at which she lived except
that it was somewhere in Olongapo City, R.P. To my knowledge, the girl did not take any drugs
while I was with her.
I have read the above statement, consisting of three pages and it is true and correct to the best of
my knowledge. No threats or promises have been made to induce me to make this statement.
(Sgd.)
MICHAEL J. BUTLER
(Name, date, time)
(1634-8 Aug. 75)
James Beaver later testified that he typed the statement of the accused, that the accused gave his
statement in answer to the questions of James Cox and that the accused signed all the pages of the
statement, that he was apprised of his constitutional rights to remain silent and to counsel by
James Cox that the accused was aware of his constitutional rights and that he affixed his signature
and initials on the document which contained the warning regarding his rights. 5
In the meantime, Dr. Angeles Roxas, Medico Legal Officer of the Olongapo Police Department
who also came to the scene of the crime on August 8,1975, examined the corpse of the victim and
later issued an autopsy report (Exhibit D) with the following findings:
NAME: - ENRIQUITA ALEPO y Apolinario
alias Enriquita Barrios
DATE & TIME: - 10:30 A.M., August 8, 1975
PLACE: - Funeraria Fernando Morgue
The body is that of a middle-aged woman Identified as Enriquita Alepo y Apolinario about 26
years old, native of Bugasong, Antique and resident of 8 Fontaine Extension. Olongapo City,
found sprawling on her face with her legs widely spread far apart, with no underwear and her
house dress folded from below upwards up to her waistline, thus exposing her private parts. There
was starting rigidity of the extremeties and starting lividity of the face, neck and abdomen which
are the dependent portions of the body. On top of the head are broken pieces of porce wares.
Close examination of the body showed fine, short, curly hairs numbering five in all, found in the
area of the anal region, with amount of blood in the between the anal folds. There were also fine
pieces of porcelain wares on her teeth and gums, upper and lower, just behind the upper and lower
lips. Further examination failed to show any sign of external physical injuries, except for a slight
abrasion, measuring 3 mm. in diameter, posterior portion, junction of the anal mucous membrane
and the skin.
The body was opened in the usual Y-shaped incision of the chest and abdomen to expose the
different, vital internal organs. The head was likewise opened by means of a saggital incision of
the scalp, then deflecting the anterior and posterior portions, and then making a coronal incision of
the skull to expose the brain substance. The following are the significant findings:
I. HEAD and NECK Fatted to find any fracture of the skull. Brain apparently normal No sign
of intra-cranial hemorrhage
II. CHEST:
1. Heart: apparently nor except that the right side of the heart is fully filled with blood.
2. Lungs. Markedly congested but no sign of edema. No obstruction of the trachea
III. ABDOMEN: all the internal abdominal organs are apparently normal.
NO OTHER SIGNIFICANT FINDING.
Specimens from the anal and vaginal smears were submitted to the OCGHI laboratory for
examinations.
CAUSE OF DEATH: Asphyxia due to suffocation.
(Sgd.)
Angeles S. Roxas, M.M.
Medico-Legal Officer
Olongapo Police Station 21
Dr. Roxas later testified that anal intercourse was had with the victim after her death as indicated
by the partly opened anus and the presence of spermatozoa in it. He testified that the anus would
have automatically and completely closed had the intercourse occurred, while the victim was still
alive. He also categorically testified that the victim died of asphyxia due to suffocation when
extreme pressure was exerted on her head pushing it downward, thereby pressing her nose and
mouth against the mattress.6
After trial, judgment was promulgated on December 3, 1976 finding the accused guilty beyond
reasonable doubt of the offense charged. The dispositive portion of the decision reads as follows:
WHEREFORE, judgment is hereby rendered:
(a) Finding the accused Michael J. Butler guilty beyond reasonable doubt of the crime of murder
by abuse of superior strength and there being proven the aggravating circumstance of treachery
and outraging or scoffing at the corpse of the deceased, not offset by any mitigating circumstance,
the Court hereby sentences him to DEATH;
(b) . Ordering the accused to indemnify the heirs of the deceased Enriquita Alipo alias "Gina
Barrios" the sum of TWENTY FOUR THOUSAND (P24,000.00) PESOS; and
(c) Ordering the accused to pay the litigation expenses and the costs of the proceedings.
Let a copy of this decision be furnished His Excellency President Ferdinand E. Marcos and the
Honorable Secretary of Justice, Vicente Abad Santos, for their information petition and guidance.
SO ORDERED.
On December 17, 1976, a motion for new trial was filed by the accused-appellant. Said motion
assailed the decision of the court a quo on the ground that a serious error of law was committed
prejudicing his substantial rights. The accused-appellant alleged in said motion that he was a
minor at the time the offense was allegedly committed, and having invoked his minority, he was
entitled to the suspension of the sentence pursuant to P.D. 603, Art. 192 before its amendment by
P.D. 1179 on August 15, 1977.
The motion for new trial was denied on January 25, 1977. A motion for reconsideration was
subsequently filed which was also denied.
A petition for mandamus was thereafter filed with this Honorable Court praying, among other
things, that an order be issued commanding respondent judge to set aside the judgment dated
December 3, 1976, to declare the proceedings suspended and to commit the accused-appellant to
the custody of the Department of Social Welfare (now Ministry of Social Services and
Development) or any other training institution licensed by the government or any other
responsible person, in accordance with P.D. 603, Art. 192 before its amendment by P.D. 1179 on
August 15,1977.
On December 13, 1978, a minute resolution was issued by this Honorable Court dismissing the
petition for mandamus for lack of merit.
On May 26,1981, accused-appellant filed in the present appeal, a manifestation and motion dated
May 19, 1981, praying that the certified certificate of live birth of the accused-appellant be
admitted to form part of the evidence. On June 4, 1981, this Honorable Court resolved to admit the
same to form part of the evidence.
The accused-appellant made six (6) assignments of errors in his brief, and seven (7) supplemental
assignments of errors in his supplemental brief. In essence. however, the issues can be reduced
into the following-
I. Whether or not the trial court erred in giving full credence to the testimony of the prosecution
witnesses;
II. Whether or not the trial court erred in admitting in evidence the alleged extrajudicial
admission of the accused (Exh. H) and appreciating it against him;
III. Whether or not the trial court erred in finding the accused guilty of the crime of murder
qualified by abuse of superior strength, with aggravating circumstances of treachery and scoffing
at the corpse of the victim;
IV. Whether or not the trial court erred in appreciating treachery and abuse of superior strength
simultaneously and separately;
V. Whether or not the trial court erred in accepting the testimony of Dr. Angeles Roxas, the
Medico-legal Officer, that asphyxiation by suffocation was the cause of death of the victim.
VI. Whether or not the trial court erred in denying the accused the benefits of Section 192 of P.D.
603 before its amendment by P.D. 1179 on August 15, 1977.
The first issue is whether or not the trial court erred in giving full credence to the testimony of the
prosecution witnesses.
Under the said issue, the accused-appellant contends that the court a quo erred in giving full
credence to the testimony of the prosecution witnesses.
The rule is well-established that the findings and conclusions of the trial court on the credibility of
the witnesses are matters that are left mainly to its discretion because it is the trial court which
observed the demeanor and the manner of testimony of the witness and, therefore, the trial court is
in a better position to assess the same than the appellate court. As a matter of established
jurisprudence, the findings of the trial court on the credibility of a witness are not disturbed on
appeal unless there is a showing that it failed to consider certain facts and circumstances which
would change the same. 7
This Court rules that the court a quo did not err in giving credence to the testimony of the
prosecution witnesses. There were three (3) persons who Identified the accused as the person last
seen with the victim on the night in question, namely Emelita Pasco, the maid, Lilia de la Paz, the
entertainer-friend of the victim, and Rosemarie Juarez, another friend of the victim.
The finger print examination showed that one of the three fragmentary latent prints lifted from the
cellophane wrapping of the figurine used in striking the victim was Identical with the accused's
left middle finger print on thirteen (13) points.
As to the contention that the findings of the medico-legal officer were inadequate and
inconclusive, We rule that the accused-appellant failed to present clear and positive evidence to
overcome the scientific and specific finding and conclusion of said officer. The details of such
findings and conclusion will be discussed herein later.
The second issue is whether or not the trial court erred in admitting in evidence the alleged extra-
judicial admission of the accused (Exh. H) and appreciating it against him.
Counsel for the accused-appellant questions the regularity of how the arrest of the accused was
made and the regularity of how wanting of the accused-appellant's constitutional rights were
given. Counsel contents that Sec. 20, Art. IV (Bill of Rights) of the New Constitution which
embodies the constitutional rights of the person under custodial investigation against self-
incrimination, and the doctrine laid down in the classic case of Miranda vs. Arizona 8 have been
violated..
Thus, accused-appellant maintains in his brief:
In the Miranda case, the accused was arrested by the and taken to a special interrogation room
where he signed a confession which contained a typed paragraph stating that the confession was
made voluntarily with full knowledge of his legal rights and with the understanding that any
statement he made might be used against him. It will be noted that the prosecution's EXHIBIT "H"
and all the submarkings thereunder was obtained from the accused-appellant under precisely
similar conditions as in the Miranda case. He was taken from his ship by Naval Intelligence
Service special agents and roughly handed from the very start. Before he could even get his
bearings, he was immediately handcuffed and told that he was a primary suspect in a very serious
offense-murder. And then, before giving him any of the warnings called for under the above-
quoted guidelines provided by the M case, was questioned about the alleged offense which he was
being suspected even while awaiting transportation to the Office of Naval Intelligence. At the
Office of Naval Intelligence, the accused-appellant was placed in a special interrogation room and
left alone for a little while. When he was finally joined again by NIS Investigators, he was merely
given the standard mimeographed warning and told to sign the same without even so much as
explaining to him the contents and significance of the mimeographed form which he was being
asked to sign. The accused-appellant was never informed that whatever statements he may given
might be used against him in a trial before a Philippine Court and was never really given the
opportunity to consult with a lawyer, whether military or civilian. The interrogation of the
accused-appellant then proceeded and lasted all day without giving him the opportunity to rest.
And then, in the preparation of said statement (EXHIBIT "H") a yeoman of the NIS investigator
did the typing and typed only those portions of the interrogation session which the NIS
investigator told him and which turned out to be in criminating to the accused-
appellant.1wph1.t The NIS interrogation could be easily characterized as a police-dominated
incommunicado interrogation. This type of interrogation is precisely the kind which was severely
criticized by the Miranda doctrine. 9
Accused-appellant further argues:
The evidence clearly shows that the Naval Intelligence agent who interrogated the accused-
appellant special Agent Cox employed precisely the police interrogation procedures described by
the U.S. Supreme Court in the Miranda case i.e. interrogation in privacy of their special
interrogation room questioning in unfamiliar surroundings, employing deceptive stratagems and
for inadequate warning of his rights to counsel and to remain silent etc., thereby breaking down
his will power by failing to allow him some rest or respite. It is in this obviously police-dominated
surrounding that the accused finally succumbed to the oppressive atmosphere of the dogged and
persistent questioning of the Naval Intelligence interrogator and finally gave the questioned
statement (EXHIBIT "H") just to get it over with. 10
We reject accused-appellant's contention and argument. Contrary to what the counsel for the
accused-appellant contends, there is no evidence showing that the accused was roughly handed
from the very start. Neither is there any evidence to prove that he was first handcuffed and
informed that he was a suspect in a murder case before he was warned of his rights.
The manner of arrest as testified to by witness Jerry Witt which was not controverted, was as
follows: 11
Q Will you tell how you make arrest of a serviceman on board a ship?
A We went to the USS HANCOCK to contact the legal officer and told him that one of his crew
members is a suspect in a murder case and we went to talk to him.
Q And what did legal officer do?
A They tried to locate him.
Q Were you with the group who located Michael Butler?
A Yes.
Q Who were with you?
A Watrous, the legal officer ship master whose name I do not know.
Q After you found Michael Butler, where was he brought?
xxx xxx xxx
Q When Michael Butler was brought to the legal office, what happened?
A I identified myself, showed my credentials and said he was a suspect in a murder case, that it
is his right to remain silent and his right to a lawyer. He was informed of the crime and asked him
to put up his arm against the wall we made body search to look for possible weapon. He had some
kind of tools, handcuffed him and took him to our office.
Q Did he refuse?
A He was very submissive.
Q Why did you make him face the wall and search him?
A Normal procedure.
Q And did he ever resist?
A No.
Q How about being handcuffed?
A Not at all.
Q And this manner of searching and handcuffing, was it done in the presence of the legal officer?
A Yes.
It is clear that there was no mandhandling on the part of the accused. Neither could it be deduced
from the events which transpired on board the sip that there was any moral coercion exerted to
break his will. It should also be noted that as early as this time, the accused-appellant had already
been informed of his constitutional rights. On this point, NISRA investigator James Cox on direct
examination said:
Q Prior to your interrogation being an investigator, what are the requisites in your talking to the
suspect?
A By Identifying myself to him, advising him of his rights, of his constitutional rights.
Q And this advise of his rights are reduced to writing?
A Yes.
Q And is this done to Michael Butler?
A Yes.
Q And you said that prior to your interrogating Michael Butler you have warned him of his
constitutional rights and his rights under the Uniform Code of Military Justice, and the same
reduced to writing ... I will withdraw.
Q You said that the interrogation on Mr. Butler has been reduced to writing, I have here a three-
page statement of Michael Butler, will you tell what is the relation of this to the statement you
have taken on Michael Butler?
A This is the statement I took from Michael Butler, on AUGUST 8, 1975.
xxx xxx xxx
Q You said that you warned the accused of his rights under the military code of justice, is this
embodied in the statement?
A Yes.
Q Will you please point to the statement, where is it? (Witness pointing to the first half upper
portion of page one of Exh. "A" motion)
xxx xxx xxx
Q And do you know if the accused understood his rights as warned by you?
A He said he did.
Q Do you have evidence that he understood the warning you gave in connection with his rights?
A I asked him if he understood, he said yes. I asked him if he needed a lawyer, he said no, and put
his initial in my presence. 12
On cross-examination, witness Jerry Witt declared:
Q You did not stay long in the office of the legal officer after he was brought in?
A No.
Q In short, the only thing that happened in the legal office is that he was searched, had his body to
the wall and handcuffed him?
A He was warned.
Q A But at that time there was no interrogation?
A Right.
Q And he did not say anything
A I do not remember him saying anything.
Q Was the warning given before he was handcuffed?
A That was the very first thing.
Q Do I understand that you gave him the warning in the deck?
A Down in the legal office, I do not want to embarrass him I did it in private.
Q In the presence of Watrous?
A Yes, and the legal officer.
Q How long after you said this warning before you handcuffed him?
A Two or three minutes.
Q And after you handcuffed him you did not reiterate your warning anymore?
A No more, just to come with us. 13
Neither are We convinced of the accused-appellant's assertion petition to the effect that the
"police-dominated' incommunicado interrogation" at NISRA office morally coerced him to sign
the "mimeographed warning" and to give the extra-judicial admission. While it may be true that a
considerable span of time elapsed from the moment the accused was brought to the NISRA office
to the time the interrogation was begun and reduced to writing, there is no competent evidence
presented to support the allegation that the statement made by the accused was a result of pressure
and badgerings. In the absence of such competent evidence, that argument remains to be a mere
speculation which cannot be made to prevail over what the prosecution witnesses have established
and which have not been successfully controverted.
We agree with the court a quo that the Miranda doctrine finds no application in this case. As the
court a quo observes:
The Miranda Doctrine does not apply in this case as the accused had already waived his right to
remain silent and to counsel after he was duly informed of said rights by his investigators. The
Court is not persuaded by the claim of the accused as there is no reliable evidence to support it
except his naked testimony that he was threatened and coerced, which allegation was contradicted
and negatived by the fact that he signed and initialed each and every page of Exhibit H, showing
no signs of tremor as a result of the maltreatment, threats or coercion. The naked denial of the
accused regarding the preparation of Exhibit H cannot overwhelm the true and positive
testimonies of the prosecution witnesses James Robert Beaver and James Creatur, James Cox and
Jerry Witt as there appears no visible indication for his fellow Americans to fabricate their
declarations and testify falsely against the accused. Besides, it is a well-settled rule that in
weighing conflicting testimonies, greater weight must be generally given to the positive
testimonies of the witnesses, for the prosecution than the denials of the accused.
The third issue is whether or not the trial court erred in finding the accused guilty of the crime of
murder qualified by abuse of superior strength, with aggravating circumstances of treachery and
scoffing at the corpse of the victim.
The prosecution maintains that there is abuse of superior strength as can be deduced from the fact
that the victim was slender, only 4'11" in height while the accused is about 6 feet tall and 155 lbs
that the accused took advantage of this unequal physical condition when he struck the victim with
the figurine which made the victim unconscious, after which he shoved and pressed the victim's
mouth and nose against the bed mattress. 14
On the other hand, it is the defense counsel's contention that the court a quo erred in appreciating
the qualifying circumstance of abuse of superior strength because like treachery, nocturnity and
evident premeditation, this circumstance has to be deliberately and purposely utilized to assure the
accomplishment of the criminal purpose without risk to the offender which might arise from the
defense that the victim might offer. The defense counsel further maintains that there is no evidence
to support that advantage was taken by the accused of his superior strength as contrary to what the
court a quo said in its decision, there was no evidence nor testimony on the part of the medico-
legal officer to the effect that when the victim was hit by a figurine, she went into a coma then her
head was pushed by a pillow, causing her nose and mouth to be pressured against the bed mattress.
In addition to this, the defense counsel further maintains that the instrument used by the accused,
which was a brittle porcelain statue of Jesus Christ, could not produce physical injury nor render
the victim unconscious as testified to at cross-examination by the medico-legal officer.
In People vs. Bustos, 15 this Court held that to be properly appreciated, it must be shown that the
accused is physically stronger than the victim or the relative strength of the parties must be
proved. In People vs. Casillar, 16 this Court said that the essence of this circumstance is that
advantage is taken by the offender of this physical strength which is relatively superior to that of
the offended party. The fact that the offender is strong does not of itself prove its existence. 17
Still, in People vs. Cabiling, a guideline to determine whether or not there is abuse of superior
strength has been laid down. In that case this Court ruled:
To take advantage of superior strength means to purposely use excessive force out of proportion to
the means of defense available to the person attached. This circumstance should always be
considered whenever there is notorious inequality of forces between aggressor, assuming a
situation of superiority of strength notoriously advantageous for the aggressor selected or taken
advantage of by him in the commission of the crime. To properly appreciate it, not only is it
necessary to evaluate the physical conditions of the protagonists or opposing forces and the arms
or objects employed by both sides, but it is also necessary to analyze the incidents and episodes
constituting the total development of the event. 18
In the light of the above legal precepts and considering the evidence adduced, this Court holds that
there was an abuse of superior strength attending the commission of the crime. It is not only the
notorious advantage of height that the accused had over his hapless victim, he being 6 feet tall and
weighing 155 lbs. while the girl was only 4 ft 11 inches tall, but also fits strength which he
wielded in striking her with the figurine on the head and in shoving her head and pressing her
mouth and nose against the bed mattress, which pressure must have been very strong and powerful
to suffocate her to death and without risk to himself in any manner or mode whatsoever that she
may have taken to defend herself or retaliate since she was already struck and helpless on the bed,
that convinced us to find and rule that the crime committed is murder with the qualifying
circumstance of abuse of superior strength.
The evidence on record, however, is not sufficient to show clearly and prove distinctly that
treachery attended the commission of the crime since there was no eyewitness account of the
killing. The extra-judicial confession of the accused merely stated, thus: "I thought she was going
to do something dangerous to me so I grabbed her, and we started wrestling on the bed. She
grabbed me by the throat and I picked up a statue of Jesus Christ that was sitting on the bedside
stand and I hit her in the head. She fell flat on her face." Although the figurine was found broken
beside her head, the medical report, however, do not show any injury or fracture of the skull and
no sign of intracranial hemorrhage.
While We reject the presence of treachery, We, however, find and sustain the finding of the lower
court that the aggravating circumstance of outraging or scoffing at the corpse of the deceased
applies against the accused since it is established that he mocked or outraged at the person or
corpse of his victim by having an anal intercourse with her after she was already dead. The fact
that the muscles of the anus did not close and also the presence of spermatozoa in the anal region
as testified to by Dr. Angeles Roxas, the medico-legal officer, and confirmed to be positive in the
Laboratory Report, Exhibit "B1 ", clearly established the coitus after death. This act of the accused
in having anal intercourse with the woman after killing her is, undoubtedly, an outrage at her
corpse.
It is true as maintained by the defense that the aggravating circumstance of outraging at the corpse
of the victim is not alleged in the information and that the lower court found it had been proved
but its contention that the said aggravating circumstance should not have been appreciated against
the accused is without merit. And this is so because the rule is that a generic aggravating
circumstance not alleged in the information may be proven during the trial over the objection of
the defense and may be appreciated in imposing the, penalty (People vs. Martinez Godinez, 106
Phil. 597). Aggravating circumstances not alleged in the information but proven during the trial
serve only to aid the court in fixing the limits of the penalty but do not change the character of the
offense. (People vs. Collado 60 Phil. 610, 614; People vs. Campo, 23 Phil. 368; People vs. Vega,
31 Phil. 450; People vs. Domondon, 64 Phil. 729).
On the claim of the defense that the accused is entitled to the benefits of Section 192 of P.D. 603
before its amendment by P.D. 1179 on August 15, 1977, the records disclose that at the time of the
commission of the crime on August 8, 1975, said accused was seventeen (1 7) years, eleven (11)
months and four (4) days old, he having been born on September 4, 1957 in Orlando, Florida,
U.S.A. The records further disclose that during the consideration of the defense's motion to
suppress the extra-judicial confession (Exhibit "H") the accused declared that he was eighteen (18)
years old as evidenced by the certification issued by Vice Consul Leovigildo Anolin of the Consul
General of the Philippines in New York City dated November 14, 1975 (Exhibit "1"-Motion).
According to the trial court, notwithstanding the presentation of Exhibit "1"-Motion, the accused
did not make any serious effort to invoke Article 192 of Presidential Decree 603 and further, since
the accused was found guilty of a capital offense, the suspension of sentence and the commitment
of the accused to the custody of any institution or person recommended by the Department of
Social Welfare cannot be carried out.
On December 17, 1976, an Urgent Motion for New Trial was filed by the defense on the ground
that a serious error of law was committed during the trial prejudicial to the substantial right of the
accused and newly discovered evidence which would probably change the judgment of the court.
The trial court denied the motion for lack of merit as well as the subsequent Motion for
Reconsideration and Second Motion for Reconsideration. Thereupon, the records of the case were
ordered immediately forwarded to the Supreme Court for automatic review pursuant to law.
At the time of the commission of the offense, trial and rendition of judgment, the applicable law
was P.D. 603 otherwise known as Child and Youth Welfare Code. The relevant provisions of the
said law to the instant case are Articles 189 and 192 which provide the following:
Art. 189. Youthful Offender. Defined A youthful offender is one who is over nine years but
under twenty-one years of age at the time of the commission of the offense.
A child nine years of age or under at the time of the offense shall be exempt from criminal liability
and shall be committed to the care of Ws or her father or mother, or nearest relative or family
friend in the discretion of the court and subject to its supervision. The same shall be done for a
child over nine years and under fifteen years of age at the time of the commission of the offense,
unless he acted with discernment, in which case he shall be proceeded against in accordance -,with
Article 192.
The provisions of Article 80 of the Revised Penal Code shall be deemed modified by the
provisions of tills Chapter.
Art. 192. Suspension of Sentence and Commitment of Youthful Offender. If after hearing and
the evidence in the proper proceedings, the court should find that the youthful offender has
committed the acts charged against him the court shall determine the imposable penalty, including
any civil liability chargeable against him. However, instead of pronouncing judgment of
conviction, the court, upon application of the youthful offender, if it finds that the best interest of
the public as well as that of the offender will be served thereby, may suspend an further
proceedings.
The trial court refused to consider and appreciate the minority of the accused because the proof
submitted by the defense was not duly authenticated as required by the Rules of Court under
Section 25 of Rule 132, said proof being merely a certification issued by Consul Leovigildo
Anolin of the Consulate General of the Philippines in New York City, U.S.A. that the attached
document is a xerox copy of the original birth certificate of Michael Jerome Butler issued by the
Department of Health and Rehabilitation Service, State of Florida, U.S.A. shown by Mr. Butler's
mother, Mrs. Ethel Butler. (Exhibit "l ", "1-A")
After the lower court had ordered the records of the case forwarded to the Supreme Court for
automatic review on January 25, 1977, as stated earlier accused-appellant filed on August 25,
1978 a petition for mandamus in G.R. No. L-48786 entitled "Michael J. Butler, minor, assisted by
Lt. Commander Charles T. Riedel, U.S. Navy (guardian ad litem) vs. Hon. Regino T. Veridiano, et
al." praying that respondent judge be ordered and commanded to set aside the judgment of
conviction, to declare the proceedings suspended and order the commitment of the accused
pursuant to Article 193, P.D. 603. The petition was denied by Us for lack of merit in Our
Resolution of December 13, 1978.
Subsequently, however, the required proof was submitted as annexes to the defense' Manifestation
and Motion to Admit (Certified Copy of Certificate of Live Birth) filed May 26, 1981 in the
instant proceedings (See Records, pp. 137-141). In Our Resolution of June 4, 1981, We admitted
the certified copy of the Certificate of Live Birth of accused-appellant to form part of the
evidence.
We do not agree with the reasoning of the trial court that the accused had not invoked the privilege
granted under Article 192 of P.D. 603 before its amendment because the records manifestly show
the vigorous plea of the accused for it's application not only in the Motion for New Trial but also
in the Motion for Reconsideration filed by the accused (See pp. 237 248, 261-271, Records of
Criminal Case No. 2465, People vs. Michael J. Butler, CFI of Zambales, Branch 1, Olongapo
City). We hold and rule that the lower court erred in not applying the provisions of Article 192 of
P.D. 603 suspending all further proceedings after the court had found that the accused had
committed the acts charged against him, determined the imposable penalty including any civil
liability chargeable against him. The trial court should not have pronounced judgment convicting
the accused, imposing upon the penalty of death.
We likewise hold that the penalty of death was not justified. Since murder was committed by the
accused, under Article 248 of the Revised Penal Code, the crime is punishable by reclusion
temporal in its maximum period to death. The accused is a minor and he is entitled to the
privileged mitigating circumstance of minority which reduces the penalty one degree lower and
that is prision mayor in its maximum period to reclusion temporal in its medium period, or ten
(10) years and one (1) day to seventeen (17) years and four (4) months. (Article 68, Revised Penal
Code) With one aggravating circumstance, that of outraging at the corpse of the victim, the
penalty imposable is the maximum period which is reclusion temporal medium or fourteen (14)
years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Imposing the
Indeterminate Sentence Law, the imposable penalty is eight (8) years and one (1) day of prision
mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal
as maximum.
We find in the records the Order of the Honorable Regino T. Veridiano II, Presiding Judge of the
Court of First Instance of Zambales, Branch I at Olongapo City, committing the accused in the
custody of the Commander, U.S. Naval Base, Subic Bay, Philippines dated December 3, 1976,
"(p)ending the finality of judgment rendered in the above-entitled case, pursuant to the provisions
of Para. 5, Article 13 of the Revised Base Military Agreement. " (p. 190, original records).
After the appeal had been submitted for decision pursuant to Our Resolution of November 20,
1980, the accused-appellant, through counsel, filed a Verified Motion to Dismiss Case Under P.D.
603 praying that an order be issued "l) Dismissing the case against accused-appellant; (2)
Ordering the immediate discharge of accused-appellant; (3) Granting accused-appellant such other
relief as may be deemed just and equitable in the premises, " alleging:
IV
8) During his entire period of continued imprisonment in the BRIG from August 11, 1975 to the
present, accused-appellant has behaved properly and has shown his capability to be a useful
member of the community. Documentary proofs of these are as follows:
(a) Official Report of the BRIG Commander, USN Subic Naval Base, attached hereto as Annex
"A" and made an integral part hereof-,
(b) Progress Report filed with this Honorable Court on November 6, 1980, by the Ministry of
Social Services and Development, Olongapo City Branch, found on pp. 113-114, of the Rollo, and
attached hereto as Annex "B" and made an integral part hereof Thus:
Based on the informations we gathered thru interviews and observations, we would like to
recommend to the Hon. Supreme Court, that Michael Butler be given a chance to enjoy his life
fully outside the jail, thus promoting his best interest and welfare.'
(c) Progress Report with annexes, dated February 18, 1981, filed on March 4,1981, by the
Ministry of Social Services and Development, Olongapo City Branch, found on pp. 128-131 of the
Rollo, a xerox copy of which is hereto attached as Annex "C " and made an integral part hereof
Thus:
In view of the fact that Mr. Michael Butler is now fully rehabilitated, it is our recommendation
that he be given an opportunity to have happily and prove himself outside the Brig.'
(d) Diploma awarded by the University of La Verne California, U.S.A., to accused-appellant as

evidence of his having completed a course in Behavioral Science, on January 24, 1981, while he
was a prisoner in the BRIG. A xerox copy of said Diploma and that of the accompanying group
photograph showing a picture of accused-appellant taken on the occasion of the commencement
exercises, are hereto attached as Annexes "D" and "D-1 ", respectively, and made integral parts
hereof. The originals are found on p. 133 of the Rollo. (The original of his transcript of record is
also hereto attached as Annex "E ").
(9) Under the foregoing facts and circumstances, and while it is now a legal and physical
impossibility to place accused-appellant under the care and custody of the Ministry of Social
Services and Development which was what should have been done in the beginning under P.D.
603, it is submitted that accused-appellant's unfortunate situation could still be remedied and
salvaged . . . as justice now demands . . . and that is, by treating accused-appellant's imprisonment
in the BRIG as equivalent to what should have been his full period of commitment under the care
and custody of the Ministry of Social Services and Development. After all, and as said Ministry
has reported, it has been regularly visiting accused- appellant at his cell in the BRIG and, is
therefore, in a position to attest to the exceptional behavior of accused-appellant.
Counsel for the People opposes the Motion to Dismiss on the following grounds: 1 That the
dismiss for lack of merit by this Court of the petition for mandamus earlier filed and docketed as
G.R.L-48788 barred the accused from raising or litigating anew the issue of his minority; 2-That
an offender is not entitled to the benefit of suspension of sentence if at the time of trial he could no
longer qualify as a minor offender for purposes of the rule on suspension of sentence because of
his age, citing the cases of People vs. Capistrano, 92 Phil. 127 and People vs. Estefa, 86 Phil. 104;
and 3-That under Section 192, P.D. 603, as amended, accused-appellant is not entitled to the
benefit of suspension because he was convicted of an offense punishable by death, considering
that the retroactive application to him of Articles 189 and 192, P.D. 603 as amended by P.D. 1179
may not be assailed because said articles are procedural in nature and there is no vested right in
rules of procedure.
We find no merit' to the opposition of the People. Our dismissal of the mandamus petition in G.R.
L-48788 which was for lack of merit due to the insufficient proof of minority of the accused is no
bar to raising the same issue in the instant automatic review of the case after We had admitted the
proper authentication of the accused's birth certificate "to form part of the evidence." (See
Resolution of June 4, 1981, rollo). The second ground is likewise without merit for the accused
was below 21 years at the time of his trial and even at the time judgment was promulgated to him
on December 3, 1976 (he was then 19 years, 3 months and 3 days old). Neither does the third
ground hold water because P.D. 603 was amended on May 15, 1977, which was after the trial and
conviction already of the accused. The amendment passed during the pendency of the appeal and
it cannot adversely affect the right, privilege or benefit accorded to the minor for suspension of the
sentence under the original provision of Article 192 of P.D. 603, which reads as follows:
Art. 192. Suspension of Sentence and Commitment of Youthful Offender. If after hearing the
evidence in the proper proceedings, the court should find that the youthful offender has committed
the acts charged against him the court shall determine the imposable penalty, including any civil
liability chargeable against him. However, instead of pronouncing judgment of conviction, the
court shall suspend all further proceedings and shall commit such minor to the custody or care of
the Department of Social Welfare, or to any training institution operated by the government, or
duly licensed agencies or any other responsible person, until he shall have reached twenty-one
years of age or, for a shorter period as the court may deem proper, after considering the reports
and recommendations of the Department of Social Welfare or the agency or responsible individual
under whose care he has been committed.
The youthful offender shall be subject to visitation and supervision by a representative of the
Department of Social Welfare or any duly licensed agency or such other officer as the Court may
designate subject to such conditions as it may prescribe.
P.D. 1179, Section 2 and made effective August 15, 1977 amended Articles 192 and 193 of P.D.
603 by adding as its penultimate paragraph the following:
The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension
of sentence under its provisions or to one who is convicted of an offense punishable by death or
life imprisonment. (emphasis supplied)
The lower court having erred in not suspending the sentence of conviction against the accused-
appellant who is entitled thereto under the original provisions of Article 192 of P.D. 603, We agree
with the defense plea that the "accused-appellant's imprisonment in the BRIG (be treated) as
equivalent to what should have been his full period of commitment under the care and custody of
the Ministry of Social Services and Development. After all, and as said Ministry has reported, it
has been regularly visiting accused-appellant at his cell in the BRIG and is, therefore, in a position
to attest to the exceptional behavior of accused-appellant."
We have examined carefully the documentary proofs attached to the appellant's Motion to Dismiss
showing that from August 11, 1975 to the present, accused-appellant has behaved properly and has
shown his capability to be a useful member of the community, and these are (a) Official Report of
the BRIG Commander, USN Subic Naval Base; (b) Progress Report filed with this Court on
November 6, 1980 by the Ministry of Social Services and Development, Olongapo City Branch;
and (c) Progress Report with annexes dated February 18, 1981 filed on March 4, 1981 by the
Ministry of Social Services and Development; and (d) Diploma awarded by the University of La
Verne California, U.S.A. showing completion of a course in Behavioral Science, on January 24,
1981, while he was a prisoner in the BRIG. The Final Report prepared and submitted by the
Supervising Social Worker of the Ministry of Social Services and Development Dated September
14, 1981 was subsequently filed with Us and it states as follows:
FINAL REPORT
In compliance with the request of the Legal Office, U.S. Naval Base, the Ministry of Social
Services and Development, Olongapo City Branch Office respectfully submits this final report on
the progress of the behavior of the above-mentioned youth.
Michael Jerome Butler has been detained at the Naval Station Brig of the U.S. Naval Base for a
period of six years now. Since his detention, he has been visited and was given counselling by the
Social Worker.
While in confinement, he was assigned to the Brig's Library, Coffee Mess and at present at the
Administrative Office. At the Administrative Office, he is responsible in keeping the records on
file, typing various forms and correspondence and forms reproduction. The present Brig Officer
said that Prisoner Butler works well requiring limited supervision as he sets and pursues goals in
an organized manner. He can be relief upon to complete an assigned task in a timely manner. He
also performs all janitorial work required for the above-mentioned spaces.
He gets along very well with the Brig's Staff and other confines and he goes out of his way to help
other confines adjust to confinement and to rehabilitate themselves.
He made use of his time in the Brig constructively and on January 29, 1981, he graduated at the
LA Verne Co with the degree m Behavioral Science. This was made possible thru his self-
determination, diligence, courage and interest. He also takes an active part in promoting health
and physical fitness to all cofinees as well as staff.
Confines Butler is not only involved in assisting and helping his co- confines but also gives
financial support to a disabled person in the person of Benjamin dela Cruz and to his (Butler)
mother who is in United States.
Mr. Butler has been incharge of the complete operation of the Brig's Library and he kept it well
stocked and completely clean and neat. He also taken the duties of a Coffee Mess and had
accomplished the job expertly.
He was given a task within the compound that only trusted confinee would be given and had
carried them with zest. His personal appearance and uniforms are always in accord with the Navy
standard. With the above findings and Mr. Butler's desire to start life anew, this Final Report is
submitted. /
Prepared and Submitted by:
(SGD.) ELOISA A. GARCIA

Supervising Social Worker
14 Sept. 1981
Noted by:
(SGD.) JUANITA B. LAFORTEZA

City Social Welfare Officer
From these reports, We are fully satisfied that the accused. appellant has behaved properly and has
shown his capability to be a useful member of the community. It is of no moment that the accused
had not been specifically committed by the court to the custody or care of the Department of
Social Welfare then, now the Ministry of Social Services and Development, or to any training
institution operated by the government or duly-licensed agencies as directed under Article 192 of
P.D. 603. At any rate, the Commander of the U.S. Naval Base in Subic Bay to whom the accused
was committed in the Order of December 3, 1976 pending the finality of judgment rendered in the
case pursuant to the provisions of paragraph 5, Article 13 of the Revised Base Military Agreement,
may be considered a responsible person to whom the accused may be committed for custody or
care under the said Article 192 of P.D. 603. What is important is the result of such custody and
care showing his conduct as well as the intellectual, physical, moral, social and emotional progress
made by the accused as shown in the favorable recommendation of the Supervising Social Worker
of the Ministry of Social Services and Development who had visited him regularly and given
counselling. We hereby approve the recommendation of the Ministry that "Michael Butler be
given a chance to enjoy his life fully outside the jail, thus promoting Ms best interest and welfare"
(Progress Report dated October 27, 1980); "that Mr. Michael Butler is now fully rehabilitated, it is
our recommendation that he be given an opportunity to live happily and prove himself outside the
Brig" (Progress Reported dated February 18, 1981); "with the above findings and Mr. Butler's
desire to start life anew, this Final Report is submitted." (Final Report dated September 14, 1981).
The dismissal of the case against the accussed Michael Butler is, therefore, meritorious and
justifiable. We hereby order his final discharge therefrom. His final release, however, shall not
obliterate his civil liability for damages in the amount of P24.000.00 to the heirs of the victim
which We hereby affirm. Such release shall be without prejudice to the right for a writ of
execution for the recovery of civil damages. (Article 198, P.D. 603).
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the case against the accused-appellant
Michael J. Butler is hereby DISMISSED and We hereby order his final discharge from
commitment and custody. The civil liability imposed upon him by the lower court shall remain.
Costs de oficio.
Motion To Dismiss granted.
SO ORDERED.
Fernando, C.J., Concepcion Jr., De Castro, Melencio-Herrera, Plana, Escolin Vasquez, Relova and
Gutierrez, Jr., JJ., concur.
Teehankee, J., took no part.
Makasiar, J., I join the dissent of Justice Aquino.
Abad Santos, J., I reserve my vote.
Separate Opinions
AQUINO, J.:, dissenting:
I concur in the finding that Michael J. Butler, an American Negro serving as a seaman in the U.S.
Navy since February 3,1975 (he was born on September 4, 1957), committed murder on August 8,
1975 when he killed a hostess, Enriquita Alipo 26, a native of Bugasong, Antique, in her residence
at 8 Fontaine Street, Olongapo City, as proven by his extrajudicial confession (Exh. H) which was
corroborated by evidence of the corpus delicti (Exh. D).
That confession was admissible in evidence, although it was taken during custodial interrogation,
when Butler was not assisted by counsel, because he voluntarily, knowingly and intelligently
waived in writing his constitutional rights to have counsel and to remain silent. Such waiver is
allowed (Miranda vs. Arizona, 16 L. Ed. 2nd 684).
Butler's confession shows that the murder was qualified by abuse of superiority. It was not
aggravated by the circumstance of outraging or scoffing at her person or corpse. The trial court
appreciated that aggravating circumstance because of the testimony of Doctor Angeles Roxas, the
medico-legal officer, that Butler had anal intercourse with the victim after her death.
Doctor Roxas based his conclusion on the fact that the victim's anus was partly open and
contained spermatozoa. He said that the anus would have completely closed had the intercourse
occurred while the victim was still alive.
On the other hand, Butler in his confession said:
I rolled the girl over and made love to her. (By this I mean I engaged in sexual intercourse with
her from the rear.) My intention was to screw her in the vagina. If I screwed her in the rectum, I
didn't intend to.
After we finished, I rolled over and went back to sleep again ... When she and I engaged in sexual
intercourse, I reached a climax while by penis was in her. (Exh. H).
The trial court conjectured that "Butler not satisfied with a normal vaginal intercourse demanded
from the deceased (hospitality girl) an anal intercourse. Upon being refused, the accused infuriated
into a demonic frenzy, took hold of a saint figurine, knocked his victim unconscious, smothered
her to death with a pillow and after she was dead, performed anal coitus with the dead person."
In my opinion the speculations of the medico-legal officer and the trial judge that there was
posthumous sodomy are unwarranted. The prosecution is bound by Butler's confession. He
indicated therein that he had sexual intercourse with the victim from the rear when she was alive
and not after her death. He alleged that the squabble over his five-peso bill, which the victim took
without his consent, was the cause of the fight which he had with the victim.
Consequently, the circumstance of having outraged or scoffed at the victim's corpse cannot be
appreciated in this case.
The confession also proves that Butler did not intend to commit so grave a wrong as that which he
committed and that he was intoxicated at the time the killing was perpetrated.
Taking into account the privileged mitigating circumstance of minority, the penalty imposable on
Butler should be lowered by one degree. He is entitled to an indeterminate sentence.
He should be sentenced to a penalty of five years of prision correccional maximum as minimum to

eleven years of prision mayor as maximum.
The trial court did not suspend the sentence of the accused although he was below eighteen years
of age when he killed the victim because he did not ask for a suspended sentence and he had
committed a capital offense.
On December 17, 1976, or a few days after the trial court promulgated its judgment sentencing
Butler to death, when he was amity 19 years, three months and thirteen days old, his counsel filed
a motion for new trial wherein he asked that he be given a suspended sentence. The trial court
denied the motion. That incident was terminated in the lower court when it issued an order on May
3, 1977, denying Butler's second motion for reconsideration.
Thereafter, the record of the case should have been elevated to this Court without delay for
automatic review of the death penalty. But, inexplicitly, the record was received in this Court more
than twenty-two months later, or on March 30, 1979.
Before the elevation of the record, Butler on August 25, 1978 filed in this Court a petition for
mandamus wherein he prayed that the trial court be ordered to set aside its judgment of
conviction, to suspend the proceedings and to commit Butler to the custody of the Department of
Social Welfare or any correctional institution pursuant to article 192 of the Child and Youth
Welfare Code before it was amended by Presidential Decree No. 1179.
This Court in its minute resolution of December 13, 1978 dismissed the petition for lack of merit
(Butler vs. Judge Veridiano II, L-48786).
It is incontrovertible that Butler was seventeen years, eleven months and four days old when he
killed the victim. Had he not contested the validity of his confession (an exercise in futility) and
had he pleaded guilty and asked for a suspended sentence, he could have been entitled to the
benefits of article 192 of the Child and Youth Welfare Code (applicable to minors below twenty-
one years of age) before it was amended by Presidential Decree No. 1179 which took effect on
August 15, 1977. The text of article 192 is as follows:
ART. 192. Suspension of Sentence and Commitment of Youthful Offender If after hearing
the evidence in the proper proceeding the court should find that the youthful offender has
conviction, the court shall suspend all further proceedings and shall commit such minor to the
custody or care of the Department of Social Welfare, or to any training institution operated by the
government, or duly licensed agencies or any other responsible person, until he shall have reached
twenty-one years of age or, for a shorter period as the court may deem proper, after considering
the reports and recommendations of the department of Social Welfare or the agency or responsible
individual under whose care he has been committed.
Presidential Decree No. 1179 reduced the age of you offenders to less than eighteen years (similar
to the original provision of article 80 of the Revised Penal Code) and amended article 192 by
requiring that the youthful offender should apply for a suspended sentence and that the suspension
of the sentence should be allowed only when public interest and the interest of the minor would be
served thereby.
The amendment also provided that there should be no suspension of the sentence of (1) one who
once enjoyed the suspension of sentence under article 192, (2) one who is convicted of an offense
punishable by death or life 'imprisonment and (3) one who is convicted for an offense by military
tribunals.
The text of article 192, as amended by Presidential D Nos. 1179 and 1210 (effective on October
11, 1977) is as follows:
ART. 192. Suspension of Sentence and Commitment of Youthful Offender. If after hearing the
evidence in the proper proceedings, the court should find that the youthful-offender has committed
the acts charged against him, the court, shall determine the imposable penalty, including any civil
liability chargeable against him. However, instead of pronouncing judgment of conjuction the
court upon application of the youthful offender and if it the best interest of the public as well as
that of the offender will be served thereby, may suspend all further proceedings and commit such
minor to the custody or care of the Department of Social Services and Development or to any
training institution operated by the government or any other responsible person until he shall
reached twenty-one years of age, or for a shorter period as the court may deem proper, after
consider the reports and recommendations of the Department of Social Services and Development
or the government training institution or responsible person under whose care he has been
committed.
Upon receipt of the application of the youthful offender for suspension of his sentence, the court
may require the Department of Social Services and Development to prepare and submit to the
court a social case study report over the offender and his family.
The Youthful offender shall be subject to visitation and supervision by a representative of the
Department of Social Services & Development or government training institution as the court may
life imprisonment or to one who is convicted for an offense by the Military Tribunals.
But he assailed the admissibility of his confession under section 20, Article IV of the Constitution.
He even filed a motion for new trial on the ground of newly discovered evidence tending to prove
that the victim was killed by her husband.
On September 24, 1981, Butler filed in this Court a verified motion to dismiss the case on the
ground that he had been illegally deprived of his right to a suspended sentence and to be
committed to a correctional institution, as prescribed in the Child and Youth Welfare Code.
It was alleged that since August 11, 1975 Butler has been confined in the Subic Bay Naval Station
Brig (stockade). He even enrolled in one of the schools of the La Verne College in the Subic Naval
Base and finished the course in Behavioral Science.
I dissent from the ponente's opinion that Butler should have been given a suspended sentence and
that, by reason of his good behavior while confined in the Subic Naval Base Stockade, he should
now be released and discharged.
Butler has taken inconsistent positions. His ambivalence is the cause of his having lost the right to
ask for a suspended sentence. His repudiation of his confession and his plea of not guilty are
inconsistent with his contention that he should have been given a suspended sentence, a remedy
which presupposes that he is guilty.
Because Butler is now twenty-five years old, the question of whether he is entitled to a suspended
sentence has become moot and academic. He is no longer a juvenile offender.
He should be made to serve his sentence of five years of prision correccional as minimum to
eleven years of prision mayor as maximum. The most that can be done for him is to give him full
credit for his confinement in the stockade, a period already exceeding the minimum of his
indeterminate sentence, and to give him a conditional pardon or release him on parole.
This Court has ruled in several cases that where the accused was below eighteen years at the time
he committed a crime but he was over eighteen years at the time of his trial or conviction, he is not
entitled to a suspended sentence (People vs. Casiguran L-45387, November 7, 1979, 94 SCRA
244, 249).
If at the time the case is decided by this Court, the accused is no longer a minor, with more reason,
he is not entitled to a suspended sentence.
Thus, where on May 14, 1963, when the robbery with homicide was committed, Teresita Nolasco
one of the accused, was 15 years and five months old, and the trial court did not suspend her
sentence but convicted her, this Court in its decision dated December 19, 1970, affirmed the
judgment of conviction and imposed on her the proper penalty after giving her the benefit of the
privileged mitigating circumstance of minority (People vs. Espejo, L-27708, 36 SCRA 400, 425.
See People vs. Parcon, L-39121, December 19, 1981, 110 SCRA 425; People vs. Labrinto, L-
43528-29, October 10, 1980, 100 SCRA 299; People vs. Capistrano, 92 Phil. 125; People vs.
Celespara 82 Phil. 399; People vs. Nunez, 85 Phil. 448).
Separate Opinions
AQUINO, J.:, dissenting:
I concur in the finding that Michael J. Butler, an American Negro serving as a seaman in the U.S.
Navy since February 3,1975 (he was born on September 4, 1957), committed murder on August 8,
1975 when he killed a hostess, Enriquita Alipo 26, a native of Bugasong, Antique, in her residence
at 8 Fontaine Street, Olongapo City, as proven by his extrajudicial confession (Exh. H) which was
corroborated by evidence of the corpus delicti (Exh. D).
That confession was admissible in evidence, although it was taken during custodial interrogation,
when Butler was not assisted by counsel, because he voluntarily, knowingly and intelligently
waived in writing his constitutional rights to have counsel and to remain silent. Such waiver is
allowed (Miranda vs. Arizona, 16 L. Ed. 2nd 684).
Butler's confession shows that the murder was qualified by abuse of superiority. It was not
aggravated by the circumstance of outraging or scoffing at her person or corpse. The trial court
appreciated that aggravating circumstance because of the testimony of Doctor Angeles Roxas, the
medico-legal officer, that Butler had anal intercourse with the victim after her death.
Doctor Roxas based his conclusion on the fact that the victim's anus was partly open and
contained spermatozoa. He said that the anus would have completely closed had the intercourse
occurred while the victim was still alive.
On the other hand, Butler in his confession said:
I rolled the girl over and made love to her. (By this I mean I engaged in sexual intercourse with
her from the rear.) My intention was to screw her in the vagina. If I screwed her in the rectum, I
didn't intend to.
After we finished, I rolled over and went back to sleep again ... When she and I engaged in sexual
intercourse, I reached a climax while by penis was in her. (Exh. H).
The trial court conjectured that "Butler not satisfied with a normal vaginal intercourse demanded
from the deceased (hospitality girl) an anal intercourse. Upon being refused, the accused infuriated
into a demonic frenzy, took hold of a saint figurine, knocked his victim unconscious, smothered
her to death with a pillow and after she was dead, performed anal coitus with the dead person."
In my opinion the speculations of the medico-legal officer and the trial judge that there was
posthumous sodomy are unwarranted. The prosecution is bound by Butler's confession. He
indicated therein that he had sexual intercourse with the victim from the rear when she was alive
and not after her death. He alleged that the squabble over his five-peso bill, which the victim took
without his consent, was the cause of the fight which he had with the victim.
Consequently, the circumstance of having outraged or scoffed at the victim's corpse cannot be
appreciated in this case.
The confession also proves that Butler did not intend to commit so grave a wrong as that which he
committed and that he was intoxicated at the time the killing was perpetrated.
Taking into account the privileged mitigating circumstance of minority, the penalty imposable on
Butler should be lowered by one degree. He is entitled to an indeterminate sentence.
He should be sentenced to a penalty of five years of prision correccional maximum as minimum to

eleven years of prision mayor as maximum.
The trial court did not suspend the sentence of the accused although he was below eighteen years
of age when he killed the victim because he did not ask for a suspended sentence and he had
committed a capital offense.
On December 17, 1976, or a few days after the trial court promulgated its judgment sentencing
Butler to death, when he was amity 19 years, three months and thirteen days old, his counsel filed
a motion for new trial wherein he asked that he be given a suspended sentence. The trial court
denied the motion. That incident was terminated in the lower court when it issued an order on May
3, 1977, denying Butler's second motion for reconsideration.
Thereafter, the record of the case should have been elevated to this Court without delay for
automatic review of the death penalty. But, inexplicitly, the record was received in this Court more
than twenty-two months later, or on March 30, 1979.
Before the elevation of the record, Butler on August 25, 1978 filed in this Court a petition for
mandamus wherein he prayed that the trial court be ordered to set aside its judgment of
conviction, to suspend the proceedings and to commit Butler to the custody of the Department of
Social Welfare or any correctional institution pursuant to article 192 of the Child and Youth
Welfare Code before it was amended by Presidential Decree No. 1179.
This Court in its minute resolution of December 13, 1978 dismissed the petition for lack of merit
(Butler vs. Judge Veridiano II, L-48786).
It is incontrovertible that Butler was seventeen years, eleven months and four days old when he
killed the victim. Had he not contested the validity of his confession (an exercise in futility) and
had he pleaded guilty and asked for a suspended sentence, he could have been entitled to the
benefits of article 192 of the Child and Youth Welfare Code (applicable to minors below twenty-
one years of age) before it was amended by Presidential Decree No. 1179 which took effect on
August 15, 1977. The text of article 192 is as follows:
ART. 192. Suspension of Sentence and Commitment of Youthful Offender If after hearing
the evidence in the proper proceeding the court should find that the youthful offender has
conviction, the court shall suspend all further proceedings and shall commit such minor to the
custody or care of the Department of Social Welfare, or to any training institution operated by the
government, or duly licensed agencies or any other responsible person, until he shall have reached
twenty-one years of age or, for a shorter period as the court may deem proper, after considering
the reports and recommendations of the department of Social Welfare or the agency or responsible
individual under whose care he has been committed.
Presidential Decree No. 1179 reduced the age of you offenders to less than eighteen years (similar
to the original provision of article 80 of the Revised Penal Code) and amended article 192 by
requiring that the youthful offender should apply for a suspended sentence and that the suspension
of the sentence should be allowed only when public interest and the interest of the minor would be
served thereby.
The amendment also provided that there should be no suspension of the sentence of (1) one who
once enjoyed the suspension of sentence under article 192, (2) one who is convicted of an offense
punishable by death or life 'imprisonment and (3) one who is convicted for an offense by military
tribunals.
The text of article 192, as amended by Presidential D Nos. 1179 and 1210 (effective on October
11, 1977) is as follows:
ART. 192. Suspension of Sentence and Commitment of Youthful Offender. If after hearing the
evidence in the proper proceedings, the court should find that the youthful-offender has committed
the acts charged against him, the court, shall determine the imposable penalty, including any civil
liability chargeable against him. However, instead of pronouncing judgment of conjuction the
court upon application of the youthful offender and if it the best interest of the public as well as
that of the offender will be served thereby, may suspend all further proceedings and commit such
minor to the custody or care of the Department of Social Services and Development or to any
training institution operated by the government or any other responsible person until he shall
reached twenty-one years of age, or for a shorter period as the court may deem proper, after
consider the reports and recommendations of the Department of Social Services and Development
or the government training institution or responsible person under whose care he has been
committed.
Upon receipt of the application of the youthful offender for suspension of his sentence, the court
may require the Department of Social Services and Development to prepare and submit to the
court a social case study report over the offender and his family.
The Youthful offender shall be subject to visitation and supervision by a representative of the
Department of Social Services & Development or government training institution as the court may
life imprisonment or to one who is convicted for an offense by the Military Tribunals.
.But he assailed the admissibility of his confession under section 20, Article IV of the
Constitution. He even filed a motion for new trial on the ground of newly discovered evidence
tending to prove that the victim was killed by her husband.
On September 24, 1981, Butler filed in this Court a verified motion to dismiss the case on the
ground that he had been illegally deprived of his right to a suspended sentence and to be
committed to a correctional institution, as prescribed in the Child and Youth Welfare Code.
It was alleged that since August 11, 1975 Butler has been confined in the Subic Bay Naval Station
Brig (stockade). He even enrolled in one of the schools of the La Verne College in the Subic Naval
Base and finished the course in Behavioral Science.
I dissent from the ponente's opinion that Butler should have been given a suspended sentence and
that, by reason of his good behavior while confined in the Subic Naval Base Stockade, he should
now be released and discharged.
Butler has taken inconsistent positions. His ambivalence is the cause of his having lost the right to
ask for a suspended sentence. His repudiation of his confession and his plea of not guilty are
inconsistent with his contention that he should have been given a suspended sentence, a remedy
which presupposes that he is guilty.
Because Butler is now twenty-five years old, the question of whether he is entitled to a suspended
sentence has become moot and academic. He is no longer a juvenile offender.
He should be made to serve his sentence of five years of prision correccional as minimum to
eleven years of prision mayor as maximum.1wph1.t The most that can be done for him is to
give him full credit for his confinement in the stockade, a period already exceeding the minimum
of his indeterminate sentence, and to give him a conditional pardon or release him on parole.
This Court has ruled in several cases that where the accused was below eighteen years at the time
he committed a crime but he was over eighteen years at the time of his trial or conviction, he is not
entitled to a suspended sentence (People vs. Casiguran L-45387, November 7, 1979, 94 SCRA
244, 249).
If at the time the case is decided by this Court, the accused is no longer a minor, with more reason,
he is not entitled to a suspended sentence.
Thus, where on May 14, 1963, when the robbery with homicide was committed, Teresita Nolasco
one of the accused, was 15 years and five months old, and the trial court did not suspend her
sentence but convicted her, this Court in its decision dated December 19, 1970, affirmed the
judgment of conviction and imposed on her the proper penalty after giving her the benefit of the
privileged mitigating circumstance of minority (People vs. Espejo, L-27708, 36 SCRA 400, 425.
See People vs. Parcon, L-39121, December 19, 1981, 110 SCRA 425; People vs. Labrinto, L-
43528-29, October 10, 1980, 100 SCRA 299; People vs. Capistrano, 92 Phil. 125; People vs.
Celespara 82 Phil. 399; People vs. Nunez, 85 Phil. 448).
Footnotes
1 t.s.n., pp. 2, 4-5, 7, July 21, 1976.
2 t.s.n., pp. 207-209, 210-213, 218, July 14, 1976.
3 t.s.n., pp. 215-217, July 14, 1976.
4 t.s.n., pp.90-91, 97-98,100-102,121-122,125, May 5, 1976.
5 t.s.n., pp. 255-258, 260-261, 264, 276, 293, July 29, 1976; t.s.n., pp. 10-11, 12-14,17-22, May
10, 1976; t.s.n., pp. 37-38,39-42, May 12, 1976.
6 t.s.n., pp. 3-4,8-16,18-21,26-31, May 3, 1976.
7 People vs. Molledo, L-34248, Nov. 21, 1978, 86 SCRA 66.
8 384 U.S. 436.
9 Accused-Appellant's Brief, pp. 15-17.
10 Accused-Appellant's Brief, pp. 21-22.
11 t.s.n., pp. 25-27, Sept. 22, 1976.
12 t.s.n., pp. 7-9, Sept. 22, 1976.
13 t.s.n., pp. 29-31, Sept. 22, 1976.
14 Plaintiff-Appellee's Brief, p. 24.
15 51 Phil. 385.
16 30 SCRA 352.
17 People vs. Apduhan, 24 SCRA 798.
18 People vs. Cabiling 74 SCRA 285, pp. 303-304.

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SUPREME COURT
Manila
EN BANC
G.R. No. L-36941 June 29, 1984
vs.
RAFAEL SAYLAN alias PAEL, accused-appellant.
Federico Y. Alikpala, Jr., for accused-appellant.
ABAD SANTOS, J.:

This is an automatic review of the decision of the defunct Court of First Instance of Misamis
Oriental in Criminal Case No. 52-M which imposed the death penalty.
RAFAEL SAYLAN was accused of the crime of rape in the sworn complaint of Eutropia Agno
said to have been committed as follows:
That on or about the 23rd day of January, 1972, at more or less 7:00 o'clock in the evening, at Sitio
Craser, Malinao, Jingo City, Philippines and within the jurisdiction of this Honorable Court, the
abovenamed accused, with deliberate intent to have sexual intercourse, did then and there wilfully,
unlawfully and criminally with the use of a dagger, force and intimidate Eutropia Agno y Arcay, to
remove her pantie and to lay down on the ground and with the use of a dagger, force and
intimidation succeeded in having sexual intercourse with Eutropia Agno y Arcay, a woman of
good reputation and against her will. That the commission of the foregoing offense was attended
by the aggravating circumstances of: abuse of superior strength, nighttime, uninhabited place,
ignominy and reiteracion. (Expediente, p. 27.)
The accused entered a plea of "not guilty" and after trial the court rendered the following
judgment:
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of rape,
penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 4111, and
the commission of the offense having been attended by three aggravating without any mitigating
circumstance, hereby sentences him to suffer the supreme penalty of death, to indemnify the
offended party in the amount of Six Thousand Pesos (P6,000.00), and to pay the costs. In view of
the fact that the offended party is a married woman, aside from the fact that she has not become
pregnant as a result of the commission of the rape, the Court makes no pronouncement as to
acknowledgment and support of offspring. (Id., p. 64.)
The factual version of the prosecution is summarized in the People's brief as follows:
The complaining witness, Eutropia A. Agno, a married woman and a resident of Barrio Malinao,
Gingoog City, was a classroom teacher of the Malinao Elementary School (pp. 2, 3, tsn., Feb. 22,
1973).
In the afternoon of January 23, 1971, Eutropia went to the public market in Gingoog City to buy
foodstuffs for her family and thereafter, she proceeded to the store of her mother to fetch her five-
year old daughter Nilsonita (p. 4, tsn., Id.). On their way home, Eutropia and Nilsonita boarded a
passenger jeepney and while inside the vehicle she (Eutropia) noticed that the other passengers
were Rudy Gonzales, a grade I pupil of the Malinao Elementary School, the appellant, Rafael
Saylan, and a couple whom she did not know (pp, 5, 6, tsn., Id.). The jeepney went only as far as
Malinas citrus farm because the road to Barrio Malinao was not passable by vehicles (p. 5, tsn.,
Id.). It was almost 6:30 o'clock in the evening when the jeepney arrived at the Malinas citrus farm
and so all the passengers alighted and had to walk all the way to Barrio Malinao which was about
three and a half kilometers away (p. 5, tsn., Id.). After walking some distance and upon reaching a
junction, the couple separated from the group and took the road leading to their house while
Eutropia's group took the opposite road (p. 9, tsn., Id.).lwphl@it The appellant, however, joined
the group of Eutropia and when they reached the place where the road was plain, appellant who
was then walking side by side with Eutropia suddenly pulled out a dagger about eight inches long
and pointing it at the latter said, "Do not shout, Nang, I will kill you!" (pp. 11, 12, tsn., Id.). At this
juncture, appellant placed his right arm around the neck of Eutropia with the dagger pointed at her
left breast (p. 12, tsn., Id.), after which he dragged Eutropia at some distance. When they reached
the junction of the trail for men and a trail for carabaos, he ordered everybody to stop and told the
children (Nilsonita and Rudy Gonzales) to stay behind and threatened to kill them if they persisted
in following them (pp. 17, 18, tsn., Id.). Thereafter, appellant again dragged Eutropia by her hand
and brought her towards a creek near a coconut tree which was about five meters away from
where Nilsonita and Rudy Gonzales were (pp. 14, 15, 16, tsn., Id.).lwphl@it The appellant then
ordered Eutropia to remove her panty which she refused at first, but appellant threatened to kill
her, so she removed her panty after which appellant ordered her to lie down (pp. 18, 19, tsn., Id.).
Subsequently, appellant placed himself on top of the victim and inserted his penis into her vagina
and succeeded in having sexual intercourse with her by moving his buttocks up and down (pp.
20,21, tsn., Id.).
After the first sexual act, appellant ordered Eutropia to standup which the latter helplessly and
grudgingly followed (p. 23, tsn., Id.). Appellant again inserted his penis into her vagina and then
performed a push and puli movement (pp. 23, 24, 25, tsn., Id.). Not satisfied with the second
intercourse, appellant ordered Eutropia to lie down again preparatory to a third intercourse (p. 26,
tsn., Id.). Appellant again performed the sexual act with her (pp. 26, 27, tsn., Id.).
After the third intercourse, appellant ordered Eutropia to stand up and then he bent her body
downwards with her hands and knees resting on the ground (p. 28, tsn., Id.). When the latter was
already in this position, appellant then placed himself behind her, inserted his penis into her vagina
and executed a push and puli movement in the dog's way of sexual intercourse (pp. 27, 28, tsn.,
Id.)
After performing this uncommon way of sexual intercourse, appellant ordered Eutropia to he
down again which the latter reluctantly obeyed because appellant's dagger was always pointed at
her and thereafter he had carnal knowledge of her for the fifth time (pp. 29, 30, tsn., Id.).
After the fifth intercourse, and after satisfying his sexual lust, appellant asked Eutropia if she will
tell her husband what he did to her and the latter answered, "I will not tell" (p. 31, tsn., Id.). But
she only said this so that appellant would let her go home (p. 33, tsn., Id.).
Afterwards, Eutropia and appellant returned to the place where the children were left and upon
arriving thereat, they found Nilsonita (Eutropia's daughter) asleep with Rudy seated dozing beside
her (pp. 32, 33, tsn., Id.). Nilsonita who was sleeping was carried by the appellant and then they
all proceeded to Malinao (pp. 33, 34, tsn., Id.).
After walking some distance, Eutropia saw the house of her friend "Ben" and upon approaching
the said house, she shouted, "Ben, Ben, please give me hot water" (p. 34, tsn., Id.). Upon hearing
her voice, Ben, who was still awake at the time, opened the door of his house and allowed
Eutropia to come up (p. 34, tsn., Id.). Eutropia immediately went upstairs and went straight to the
room of Ben as she was feeling very bad (p. 34, tsn., Id.). Appellant, who was then carrying
Nilsonita and Rudy Gonzales, were also allowed to go upstairs (p. 35, tsn., Id.). Meanwhile,
Eutropia requested Ben to fetch her husband (p. 35, tsn., Id.).
When Eutropia woke up between 9:00 and 10:00 o'clock that evening, her husband was already
there (p. 36, tsn., Id.). She then asked him whether the appellant was stin around, and in reply, he
told her that appellant had already left (p. 37, tsn., Id.). Eutropia then told her husband that she
was raped by the appellant (p. 37, tsn., Id.). Upon learning of the dastardly act committed by the
appellant, he advised his wife to submit herself to a medical examination (p. 37, tsn., Id.).
The following morning, the offended party was brought to the office of the City Health
Department of Gingoog City where she was examined by Dr. Ireneo O. Pascual who after
conducting a thorough physical examination, issued a medical certificate with the following
findings, to wit:
(1) Multiparous.
(2) Presence of viscid whitish secretions at vaginal fornix
(3) Microscopic examination of secretions reveals epithelial cells, but no spermatozoa Identified.
(pp. 10, 11, 12, t.s.n., Feb. 24, 1973; Exh. "A").
Rudy Gonzales, a grade I pupil of the Malinao Elementary School and one of the witnesses for the
prosecution, testified that he met Mrs. Eutropia Agno in the afternoon of January 23, 1972 at the
public market of Gingoog City buying foodstuffs for her family (pp. 2, 3, tsn., Feb. 26, 1973). On
their way back to Barrio Malinao, they boarded a passenger jeepney and while he was inside the
vehicle, he noticed that the other passengers aside from Mrs. Agno, her daughter, and himself were
the appellant and a couple whose names he did not know ( p. 4, tsn., Id.). The jeepney, however,
could only travel up to the Marinas Citrus farm and so they had to walk all the way to Barrio
Malinao (p. 4, tsn., Id.) After was some distance and upon reaching a trail for carabaos, the
appellant suddenly pulled a dagger and placed his arms around the neck of Mrs. Agno and then
dragged her towards the carabao trail (pp. 4, 5, tsn., Id.). Meanwhile, he and Nilsonita were left
behind and they fell asleep because it took a long time for the appellant and Mrs. Agno to come
back for them (p. 5, tsn., Id.). When Mrs. Agno and the appellant returned, he was already awake
while Nilsonita was still asleep and so appellant had to carry her in going home to Man (p. 6, tsn.,
Id.).lwphl@it After was some distance, Mrs. Agno saw the house of Mang Ben and because she
was feeling bad, they all went to the house of Mang Ben where Mrs. Agno spent the night (p. 7,
tsn., Id.). Afterwards, he and the appellant left the house of Mang Ben and then they proceeded to
his house at Malinao where both of them slept (pp. 7, 21, tsn., Id.). (At pp. 2-8.)
The accused did not deny having had sexual intercourse with Mrs. Agno; in fact he admitted that
he copulated with her for three successive times in the early evening of January 23, 1972, but he
claimed that it was with her consent. Accordingly, he now claims that:
I. THE COURT A QUO ERRED IN FINDING THAT THE SEXUAL INTERCOURSE HAD
BEEN COMMITTED AGAINST THE WILL AND CONSENT OF THE COMPLAINANT.
II. THE COURT A QUO ERRED IN FINDING THAT AGGRAVATING CIRCUMSTANCES
HAD ACCOMPANIED THE COMMISSION OF THE OFFENSE. (Brief, p. 5.)
The appeal must fail for the reasons stated hereunder.
This is a typical rape case. Only the participants could directly testify on the alleged sexual abuse
and the accused alleges consent on the part of the complainant. The question of credibility arises
and under the circumstances We have to rely heavily on the determination made by the trial judge
who observed the demeanor of the witnesses while before Us is only the cold transcript of what
they said.
We accept the conclusions and findings of fact of the trial court that the complainant was in fact
raped by the appellant. There is no fact or circumstance in the record which will justify a different
action.
The claim of the appellant that the sexual intercourse was mutually agreed is utterly incredible. If
it were true that Mrs. Agno consented to have coitus with the appellant, her conduct thereafter
defies understanding because it is contrary to reason and it has not been shown that Mrs. Agno, a
school teacher, was bereft of common sense. For if it was true that the sexual act was indeed
mutually desired and performed why did she complain not only to her husband but also to the
authorities? An affair such as that claimed by the appellant is carried out in a discreet manier. On
the other hand, the version of the complainant has indicia of credibility. For her version bared her
shame to a small community and her exposure was necessary only because she had to reveal the
truth. No, We simply cannot believe the appellant's version.
We have said above that the findings and conclusions of the trial court are entitled to great respect.
In finding the appellant guilty, this is what the court a quo said in part:
The testimony of the accused is incredible. When he told his love to the offended party for the first
time, they were only two in the latter's house. He had more time with her then. She refuse him
because she is married. He tried for the second time. He was again refused because she is married.
It is unthinkable and highly improbable that on the evening of January 23, 1972, after only three
minutes, the offended party would rush to accept his love and go to the extent of thanking him for
his considering her daughter as his own, unless she was coerced, threatened, forced and
intimidated.
It is highly improbable for a school teacher with several children to exchange her husband only 40
years old and with a good means of livelihood for one whom she does not know and whom she
has observed as doing nothing except to play basketball. It is subversive of the traits, character and
nature of Filipino women to say that the offended party, a school teacher and a girl scout accepted
the love of a man who is good for nothing and surrendered her whole body and virtue to him after
an accidental courtship of only three minutes. The offended party is an unsophisticated and
conservative woman, fixing her hair the old fashion way. She does not apply make-up on her face,
and her dress is up to her knees. This makes the pretensions of the accused all the more incredible.
(Expediente, p. 59.)
The complaint alleges the following aggravating circumstances: abuse of superior strength,
nocturnity, despoblado, ignominy, and reiteracion.
The trial court disregarded superiority because it "is inherent in the crime of rape or is absorbed in
the element of force." It also did not consider nocturnity "there being no evidence that the accused
purposely sought it to facilitate the commission of this rape." (Id, p. 63.)
Despoblado was present according to the trial court because: "The accused dragged the offended
party, at the point of a dagger, to the carabao trail, about 10 meters from the junction, but 40 to 50
meters below to better attain his purpose without interference, and to better secure himself from
detection and punishment (U.S. vs. Vitug, 17 Phil. 1). Even the junction where the two children
were left is already 400 meters from the nearest house. While there maybe occasional passersby,
this does not destroy its being an uninhabited place. (People vs. Bangug, 52 Phil. 87)." (Id, p. 62.)
We hold that the trial court for the reasons stated correctly held that the crime was committed in an
uninhabited place.
The trial court held that there was ignominy because the appellant used not only the missionary
position, i.e. male supenor female inferior, but also "The same position as dogs do" i.e., entry from
behind. The appellant claims there was no ignominy because "The studies of many experts in the
matter have shown that this 'position' is not novel and has repeatedly and often been resorted to by
couples in the act of copulation. (Brief, p. 24.) This may well be if the sexual act is performed by
consenting partners but not otherwise.
The trial court also held that "there is no reiteracion because one of the offenses, namely Robbery
in Band, for which the accused has been penal was committed after the commission of this rape
case, and the penalty imposed on the other offense of Frustrated Homicide, is lighter than the
penalty for rape." (Id, P. 63.)
Although not alleged in the complaint, the trial court stated that the offense was aggravated by
disregard of rank because it was a fact knowm to the appellant that Mrs. Agno was a school
teacher. The appellant claims that this circumstance cannot be assigned to him because there was
no deliberate intent to offend or insult the rank of Mrs. Agno. The Solicitor General agrees with
the appellant for the same reason.
The judgment of the trial court is in accordance with the facts and the law but it cannot be
affirmed completely because of the lack of the necessary number of votes.
WHEREFORE, the judgment under review is modified in the sense that the appellant shall suffer
the penalty of reclusion perpetua instead of death and the indemnity to be paid to the offended
party is increased to P20,000.00. Costs against the appellant.
SO ORDERED.
Fernando, C.J., Makasiar, Aquino, Concepcion, Jr., Guerrero, Plana, Escolin, Relova, Gutierrez,
Jr., De la Fuente and Cuevas, JJ., concur.
Teehankee, J., took no part.

Melencio-Herrera, J., is on leave.
SECOND DIVISION
[G.R. No. 132470. April 27, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO SULTAN y LATO,

accused-appellant.
DECISION
BELLOSILLO, J.:
FERNANDO SULTAN y LATO appeals from the Decision of the trial court finding him guilty of
the special complex crime of robbery with rape, sentencing him to reclusion perpetua and ordering
him to return to his victim one (1) wrist watch, one (1) ring, one (1) pair of earrings, and one (1)
necklace valued at P1,600.00, P850.00, P500.00, and P2,100.00, respectively, and cash of
P130.00; otherwise, to pay P5,180.00 if restitution be no longer feasible. He was further ordered to
pay P50,000.00 for moral damages.[1] Newmiso
The evidence for the prosecution was based principally on the testimony of complaining witness
Juditha M. Bautista. According to her, on 2 June 1997 at 9:00 oclock in the evening she was on
her way home from a visit to her cousin Cristina Mansilongan in Novaliches, Quezon City; when
she passed the dark alley in her cousin's compound she was accosted by someone, later identified
as accused-appellant Fernando L. Sultan, who pointed a sharp instrument at her neck and
announcing it was a "hold-up." He grabbed her and brought her to a house along the alley which
turned out to be his. Once inside the house, he made her sit down. He offered her a drink; she
refused it. Then he started divesting her of her watch, ring, earrings, and necklace the values of
which are now reflected in the Decision of the court a quo, and her cash of P130.00. After taking
her valuables, he started kissing her on the lips and cheeks. As if to discourage him from making
further sexual advances, she told him that she was married with two (2) children but accused-
appellant was not dissuaded from pursuing his intentions. While pointing an ice pick at her he
ordered her to undress. She acceded for fear that he would kill her as she was under constant
threat. After she had completely undressed, accused-appellant ordered her to lie down on the floor.
He then kissed her again from head down. Still she could not resist him because of fear. He went
on top of her, held her two (2) hands on the level of her head, spread her thighs and inserted his
penis into her vagina. The coital encounter lasted for ten (10) to fifteen (15) minutes.[2]
After satisfying his lust, he ordered her to put on her bra and panty, tied her hands and went out of
the room to smoke. After ten (10) to fifteen (15) minutes, he came back, untied her, and once
again with threat and intimidation sexually abused her. Thereafter, he tied her hands to a
protruding piece of wood in the room and held her in his arms. She cried. He told her that he loved
her and that he would answer for what he had done to her. They talked until noon the following
day without sleeping.[3]
In her effort to release herself from his clutches she "agreed" to elope with him. Perhaps
convinced that she was going to run away with him, he allowed her to go home at noon to get her
things. She was then staying with her cousin Nita del Rosario, at No. 9 Sta. Eleuteria Street,
Gulod, Novaliches, Quezon City. He even accompanied her to the highway to get a ride home.[4]
Acctmis
When Juditha arrived home she saw her sister Antonette in the house. She was not actually
residing there but went there only that day. Juditha lost no time in narrating her harrowing
experience to her sister. Immediately Antonette called her brother SPO1 Fernando M. Bautista
who resides in Bulacan.[5] SPO1 Bautista arrived at around 3:00 or 4:00 oclock in the afternoon
and was told about what happened.[6] He then advised Juditha to go back to the house of accused-
appellant for the "planned elopement" so that he and his two (2) companions[7] could stage an
arrest.[8]
On their way to the house of accused-appellant, Juditha rode in a passenger jeep with her sister
Antonette and cousin Nita while her brother and his two (2) companions followed them on board
an XLT Van. Juditha alighted near the house of accused-appellant while her companions waited
for her and accused-appellant along the highway. When she arrived at accused-appellants place, he
was already waiting for her outside the store nearby. They went inside his house and came out
twenty (20) minutes later. They boarded a passenger bus while SPO1 Bautista and his companions
trailed them. When the bus reached the corner of Forest Hill Subdivision, Gulod, Novaliches, it
slowed down because of the traffic thus making it easier for SPO1 Bautista and his companions to
board the bus. Upon seeing her brother and his companions, Juditha motioned to them. They
immediately approached accused-appellant and boxed him before they could arrest him. The other
passengers of the bus joined in hitting accused-appellant. This caused a commotion in the bus.
Some policemen who were in the barangay hall across the street saw the disturbance. They
boarded the bus to find out what happened. Then they assisted in facilitating the arrest of accused-
appellant and brought him to the barangay hall. He was later on transferred to the police
headquarters for further interrogation.
At the police station the authorities investigated Juditha who readily identified accused-appellant
as her robber and rapist. The police then requested for physical examination to find signs of sexual
abuse. Medico-Legal Inspector Dr. Dennis G. Bellin found no external signs of violence although
there was a deep fresh laceration at 5 oclock position in Judithas hymen. He also discovered other
lacerations, deep healed, at 3, 7 and 9 oclock positions. Dr. Bellin also observed that Judithas
external vaginal orifice offered moderate resistance to his examining index finger and virgin-sized
vaginal speculum. She was no longer a virgin when the alleged rape transpired.[9]
On 5 June 1997 an Information[10] for the special complex crime of robbery with rape was filed
against accused-appellant Fernando Sultan y Lato, docketed as Crim. Case No. Q-97-71353. But
accused-appellant brushed aside the charge and claimed that it was simply a sexual congress of
consenting adults.
Finding the complaining witness version more credible, the trial court, on 5 June 1998, found
accused-appellant guilty as charged and sentenced him to reclusion perpetua. He was ordered to
return to Juditha Bautista one (1) wrist watch valued at P1,600.00, one (1) ring worth P850.00,
one (1) pair of earrings worth P500.00, one (1) necklace worth P2,100.00 and cash in the amount
of P130.00, or the payment of P5,180.00 if return was not possible. Accused-appellant was further
directed to pay his victim P50,000.00 for moral damages.[11] Misact
In this appeal, accused-appellant submits that there is no convincing proof that he is guilty of the
crime charged.
As to the robbery, he contends that the testimony of complainant that she was robbed of her
personal valuables should not be given weight and credence as (a) no evidence was presented in
court to prove her claim and that (b) if he had really robbed her, why did she not ask him for
restitution of her valuables after the alleged threat had ceased, i.e., when there was already an
agreement between them to elope?
These arguments fail to persuade us. The testimony of complainant as to the taking of her cash and
valuables is evidence enough to sustain a conviction for robbery considering that we find no fault
in the pronouncement of the trial court that her testimony is credible. The persuasive value of the
declaration of credibility is bolstered by our own scrutiny of the testimony of complainant
showing her answers to the incisive questions propounded to her to be firm and straightforward.
While there may have been no effort on the part of complainant to retrieve her personal
belongings from accused-appellant even after all threats had ceased, her failure to do so does not
under the circumstances necessarily dispute the commission of robbery. Article 293 of the Revised
Penal Code provides that "[a]ny person who, with intent to gain, shall take any personal property
belonging to another, by means of violence against or intimidation of person, or using force upon
anything, shall be guilty of robbery." When accused-appellant divested complaining witness of her
personal belongings he committed the crime of robbery. All the elements necessary for its
execution and accomplishment were present, i.e., (a) personal property belonging to another, (b)
unlawful taking, (c) intent to gain, and (d) violence or intimidation. It is therefore immaterial that
she failed to ask for the return of her personal things. Moreover, her actuation could only be fairly
interpreted to mean that she did not want accused-appellant to be suspicious of her moves.
As for the charge of rape, accused-appellant maintains that the requisite force or intimidation was
not proved by the prosecution beyond reasonable doubt; that there was some form of consent to
the sexual intercourse as complainant did not put up tenacious resistance despite lack of threat on
her life during the alleged rape; and, that complainant on cross-examination was not certain
whether accused-appellant was armed at the commencement of the rape. Sdjad
We likewise find these contentions of accused-appellant unconvincing. The prosecution for rape in
the instant case is based solely on the testimony of complaining witness. Thus, the basic issue that
must be addressed is her credibility. Doctrinally, the trial courts assessment of the credibility of
witnesses is accorded the highest respect and weight by the appellate courts. It is normally
sustained unless material facts and circumstances have been overlooked, misunderstood or
misapplied.[12] There is no such showing in this case.
Accused-appellant might not have employed force in committing the rape but he definitely used
intimidation which was sufficient to make complainant submit herself to him against her will for
fear of life and personal safety. Accused-appellant grabbed her and dragged her to his house. He
was armed with an ice pick and threatened to kill her with it if she did not follow his wishes. She
was naturally intimidated and her intimidation started from that moment on, and subsisted in her
mind when the rape was started until its consummation. Intimidation is subjective so it must be
viewed in the light of the victims perception and judgment at the time of the commission of the
crime, and not by any hard and fast rule. It is enough that it produces fear, as in the present case,
fear that if the complainant does not yield to the bestial demands of accused-appellant something
would happen to her at that moment or even thereafter. Thus, it is irrelevant that she was not
certain when cross-examined that accused-appellant was armed with an ice pick when the rape
commenced; it was enough that he was holding something that looked like an ice pick which
engendered fear in her. With fear instilled in her mind, it is understandable that she did not offer
any resistance since any attempt to do so would only be futile. Such failure on her part should not
be taken to mean consent so as to make her a willing participant in the sexual confrontation.
The Information charges accused-appellant with the special complex crime of robbery with rape.
The record shows that the prosecution has established that he committed both robbery and rape
with the intent to take personal property of another preceding the rape. Under Art. 294, par. (1), of
the Revised Penal Code, "x x x [a]ny person guilty of robbery with the use of violence against or
intimidation of persons shall suffer: 1. The penalty of reclusion perpetua to death, x x x when the
robbery shall have been accompanied by rape x x x x" Complaining witness Juditha Bautista was
raped twice on the occasion of the robbery. In this regard, this Court had declared in some cases
that the additional rapes committed on the same occasion of robbery would not increase the
penalty.[13] There were also cases, however, where this Court ruled that the multiplicity of rapes
committed could be appreciated as an aggravating circumstance.[14] Finally, in the recent case of
People v. Regala,[15] the Court held that the additional rapes committed should not be appreciated
as an aggravating circumstance despite a resultant "anomalous situation" wherein robbery with
rape would be on the same level as robbery with multiple rapes in terms of gravity.[16] The Court
realized that there was no law providing for the additional rape/s or homicide/s for that matter to
be considered as aggravating circumstance. It further observed that the enumeration of
aggravating circumstances under Art. 14 of the Revised Penal Code is exclusive, unlike in Art. 13
of the same Code which enumerates the mitigating circumstances where analogous circumstances
may be considered, hence, the remedy lies with the legislature. Consequently, unless and until a
law is passed providing that the additional rape/s or homicide/s may be considered aggravating,
the Court must construe the penal law in favor of the offender as no person may be brought within
its terms if he is not clearly made so by the statute. Under this view, the additional rape committed
by accused-appellant is not considered an aggravating circumstance. Applying Art. 63, par. (2), of
the Revised Penal Code which provides that "(i)n all cases in which the law prescribes a penalty
composed of two indivisible penalties, the following rules shall be observed in the application
thereof x x x x 2. (w)hen there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied," the lower penalty of reclusion
perpetua should be imposed on accused-appellant. Sppedsc
As to the award of damages to the complaining witness, an additional amount of P50,000.00 may
be given as damages ex delicto in line with recent jurisprudence.[17]
WHEREFORE, the Decision of the court a quo finding accused-appellant FERNANDO SULTAN
Y LATO GUILTY of the special complex crime of robbery with rape and sentencing him to
reclusion perpetua, to pay Juditha M. Bautista P50,000.00 for moral damages, P5,180.00 for actual
damages representing the value of the personal properties plus the cash amount of P130.00 taken
from her is AFFIRMED with the MODIFICATION that the amount of P50,000.00 be added as
civil indemnity in conformity with prevailing jurisprudence. Costs against accused-appellant.
SO ORDERED.
Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.
[1] Decision penned by Judge Diosdado M. Peralta, RTC-Br. 95, Quezon City.
[2] TSN, 15 September 1997, pp. 3-19.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] TSN, 8 September 1997, pp. 3-11.
[7] Bong Coronel and policeman Agustin Bautista, Jr.
[8] See Note 6.
[9] TSN, 15 September 1997, pp. 3-10.
[10] Rollo, p. 4.
[11] See Note 1.
[12] People v. Cristobal, G.R. No. 119218, 29 April 1999, citing People v. Banela, G.R. No.
124973, 18 January 1999.
[13] People v. Cristobal, G.R. No. 119218, 29 April 1999; People v. Martinez, G.R. No. 116918,
19 June 1997, 274 SCRA 259; People v. Lutao, G.R. No. 107798, 16 November 1995, 250 SCRA
45; People v. Precioso, G.R. No. 95890, 12 May 1993, 221 SCRA 748, cited in People v. Regala,
G.R. No. 130508, 5 April 2000.
[14] People v. Candelario, G.R. No. 125550, 28 July 1999; People v. Pulusan, G.R. No. 110037,
21 May 1998, 290 SCRA 353; People v. Salvatierra, G.R. No. 111124, 20 June 1996, 257 SCRA
489.
[15] G.R. No. 130508, 5 April 2000.
[16] Citing People v. Pedroso, No. L-32997, 30 July 1982, 115 SCRA 599; People v. Mabilangan,
No. L-48217, 30 January 1982, 111 SCRA 398.
[17] People v. Cristobal, G.R. No. 119218, 29 April 1999.
THIRD DIVISION
[G.R. Nos. 136149-51. September 19, 2000]
PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL alias

WARPAN, appellant.
DECISION
PANGANIBAN, J.:
Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person
arrested committed no other crime. Furthermore, if the person is held liable for murder or
homicide, illegal possession of firearms is an aggravating circumstance, but not a separate offense.
Hence, where an accused was convicted of direct assault with multiple attempted homicide for
firing an unlicensed M-14 rifle at several policemen who were about to serve a search warrant, he
cannot be held guilty of the separate offense of illegal possession of firearms. Neither can such
unlawful act be considered to have aggravated the direct assault.
The Case
Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September 17, 1998
Decision[1] of the Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found him
guilty of three out of the four charges lodged against him.
Filed against appellant were four Informations,[2] all signed by Assistant Regional State
Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Information[3] was for
maintaining a den for the use of regulated drugs. It reads as follows:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Walpan Ladjaalam being then the
owner of a residential house located at Rio Hondo,[4] this City, conspiring and confederating
together, mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad
Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house
as a den, where regulated drug [was] used in any form.[5]
The second Information[6] charged appellant with illegal possession of firearms and ammunition.
We quote it below:
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together, mutually aiding and assisting with one another, without any justifiable reason or purpose
other than to use it in the commission of crime, did then and there, wilfully, unlawfully, and
feloniously have in their possession and under their custody and control, the following weapons,
to wit: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live
ammunition; two (2) magazines with twenty (20) and twenty[-one] (21) rounds of live
[ammunition]; one (1) homemade caliber .38 revolver with five (5) live ammunition; one (1) M-79
(single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38 with SN-
311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two
(2) .38 Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade launcher
paltik, without first having obtained the necessary license and or permit therefor from authorities
concerned, in flagrant violation of the aforementioned law.[7]
The third Information,[8] for multiple attempted murder with direct assault, was worded thus:
jurisdiction of this Honorable Court, the above-named accused being then armed with M-14
Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, conspiring and
confederating together, mutually aiding and assisting x x x one another and with intent to kill, did
then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B.
JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1
RICARDO J. LACASTESANTOS, in the following manner, to wit: by then and there firing their
M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives,
aimed and directed at the fatal parts of the bodies of the above-named police officers, well known
to the accused as members of the Philippine National Police, Zamboanga City Police Office, and
as such, agents of a person in authority, who at the time of the attack were engaged in the
performance of their duties, that is, on the occasion when said officers were about to serve the
Search Warrant legally issued by the Regional Trial Court, this City, to the person of the accused
thus commencing the commission of crime of multiple murder directly by overt acts, and if the
accused did not accomplish their unlawful purpose, that is, to kill the above-named Police
Officers, it was not by reason of their own voluntary desistance but rather because of the fact that
all the above-named police officers were able to seek cover during the firing and were not hit by
the bullets and explosives fired by the accused and also by the fact said police officers were able
to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. Warpan and
Ahmad Sailabbi y Hajairani, who were subdued and subsequently placed under arrest; whereas
accused PO2 Nurhakim T. Hadjula was able to make good his escape and has remained at-large.
[9]
In the fourth Information, appellant was charged with illegal possession of drugs.[10]
On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were
dismissed upon motion of the Office of the City Prosecutor, which had conducted a reinvestigation
of the cases as ordered by the lower court. The accused were consequently released from jail.
The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which
he entered a plea of not guilty.[11] After pretrial, the assailed Decision was rendered, the
dispositive part of which reads:
WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. WARPAN -
1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of
Section 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act
of 1972, as amended, and SENTENCES said accused to the penalty of RECLUSION PERPETUA
and to pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) and to pay the costs;
2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to
Section 21, Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of
1972, as amended, and ACQUITS him of said crime with costs de oficio;
3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of
Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866, as
amended by Republic Act. No. 8294, and SENTENCES said accused to suffer an indeterminate
penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8) YEARS of prision
mayor as maximum and to pay a fine [of] THIRTY THOUSAND (P30,000.00) and pay the costs;
4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of
Direct Assault with Multiple Attempted Homicide and SENTENCES said accused to an
indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as
minimum to SIX (6) YEARS of prision correccional as maximum and to pay a fine of ONE
THOUSAND (P1,000.00) and to pay the costs. (emphasis in the original)
Hence, this appeal.[12]
The Facts
Prosecutions Version
In its Brief,[13] the Office of the Solicitor General presents the facts in this wise:
At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance
of a search warrant against appellant, his wife and some John Does (Exh. C). After the search
warrant was issued about 2:30 p.m. of the same day, a briefing was conducted inside the office of
the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office in connection with the service
of the search warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the Anti-
Vice/Narcotics Unit. During the briefing, PO3 Renato Dela Pea was assigned as presentor of the
warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were designated to conduct the
search. Other policemen were assigned as perimeter guards (TSN, March 3, 1998, pp. 33-36).
After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin
Soledad proceeded to the house of appellant and his wife at Rio Hondo on board several police
vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reach appellants
house, three (3) persons sitting at a nearby store ran towards the house shouting, [P]olice, raid,
raid (Ibid., March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about
ten (10) meters from the main gate of the house, they were met by a rapid burst of gunfire coming
from the second floor of the house. There was also gunfire at the back of the house (Ibid., March
5, 1998, pp. 14-16).
SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Pea who were with the first group
of policemen saw appellant fire an M14 rifle towards them. They all knew appellant. When they
were fired upon, the group, together with SPO2 Gaganting, PO3 Obut and Superintendent
Soledad, sought cover at the concrete fence to observe the movements at the second floor of the
house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51).
In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46,
57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut entered the door of the
extension building. Gaganting opened the main (steel) gate of the house. The other members of the
team then entered. Lacastesantos and Mirasol entered the house through the main door and went
inside the sala of the ground floor while other policemen surrounded the house. Two (2) old
women were in the sala together with a young girl and three (3) children. One of the old women
took the children to the second floor while the young girl remained seated at the corner (Ibid., pp.
19-21).
Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an
M14 rifle at them through the window. While they were going upstairs, appellant noticed their
presence. He went inside the bedroom and, after breaking and removing the jalousies, jumped
from the window to the roof of a neighboring house. Seeing this, Mirasol rushed downstairs and
asked help from the other members of the raiding team to arrest appellant. Lacastesantos went to
the second floor and shouted to the policemen outside not to fire in the direction of the second
floor because there were children. Mirasol and SPO1 Cesar Rabuya arrested appellant at the back
of his house after a brief chase (Ibid., pp. 21-23).
At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa
at the sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the
magazine from the rifle and the bullet inside the chamber of the rifle. He counted seventeen (17)
live ammunition inside the magazine. He saw two (2) more M14 rifle magazines on the sofa, one
with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition
(Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner at the second
floor (TSN, March 5, 1998, pp. 23-32, 53-57).
After Lacastesantos and Mirasol entered appellants house, Rivera, Dela Pea, Gregorio and Obut
followed and entered the house. After identifying themselves as members of the PNP Anti-
Vice/Narcotics Unit, Obut presented to the old women a copy of the search warrant. Dela Pea and
Rivera then searched appellants room on the ground floor in the presence of Punong Barangay
Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with fifty
(50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing methamphetamine
hydrochloride or shabu.
Other items were found during the search, namely, assorted coins in different denominations (Exh.
W; TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with five
(5) live [ammunition], one (1) M79 single rifle with [a] pouch containing five (5) empty shells of
an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32).
Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga
Police. [O]n the morning of September 24, 1997, he was instructed by SPO2 Gaganting to go to
appellants house to buy shabu. Locson knew appellant as a seller of shabu (TSN, April 22, 1998,
p. 5) and had been to appellants house about fifteen (15) times before. He went to Rio Hondo and
arrived at appellants house at 3:20 p.m. He bought P300.00 worth of shabu from appellant. The
latter got three (3) decks of shabu from his waist bag. Appellant instructed Locson to go behind
the curtain where there was a table. There were six (6) persons already smoking. There was a
lighted kerosene lamp made of a medicine bottle placed on the table. They asked Locson to smoke
shabu and Locson obliged. He placed the three (3) decks of shabu he bought on the table (Ibid.,
pp. 8-15).
While they were smoking shabu, Locson heard gunfire coming from appellants house. They all
stood and entered appellants compound but were instructed to pass [through] the other side. They
met appellant at the back of his house. Appellant told them to escape because the police are
already here. They scampered and ran away because there were already shots. Locson jumped
over the fence and ran towards the seashore. Upon reaching a place near the Fisheries School, he
took a tricycle and went home (Ibid., pp. 17-19).
The following day, September 25, 1997, he went to the police station and executed an affidavit
(Exh. M) narrating what transpired at appellants house [o]n the afternoon of September 24, 1997.
After the search and before returning to the police station, P03 Dela Pea prepared a Receipt for
Property Seized (Exh. P & 3) listing the properties seized during the search. The receipt was
signed by Dela Pea as the seizure officer, and by Punong Barangay Hadji Hussin Elhano and radio
reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he refused to
acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12).
An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP
Crime Laboratory Service Office 9, on the paraffin casts taken from both hands of appellant
yielded positive for gunpowder nitrates (Exh. A-3), giving rise to the possibility that appellant had
fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations
conducted on September 26, 1997 showed that the following firearms were fired (Exh. B-5): a .38
caliber revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber revolver
(homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No.
1555225 (Exh. B-3), and an M79 rifle without a serial number (Exh. B-4). They were fired within
five (5) days prior to the examination (TSN, March 3, 1998, pp. 16-21).
With respect to the crystalline substances, an examination conducted by Police Inspector Susan M.
Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the
fifty (50) pieces of folded aluminum foils each containing white crystalline granules with a total
weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of
methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1)
crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results for the presence of
methamphetamine hydrochloride (Exh. L).
The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive
Section show that appellant had not applied/filed any application for license to possess firearm and
ammunition or x x x been given authority to carry [a] firearm outside of his residence (Exh. X)
[14]
Defenses Version
Appellant Ladjaalam agrees with the narration of facts given by the lower court.[15] Hence, we
quote the pertinent parts of the assailed Decision:
Accused Walpan Ladjaalam y Mihajil a.k.a. Warpan, 30 years old, married, gave his occupation as
smuggling (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia and bring cigarettes to
the Philippines without paying taxes (tsn, pp. 40-41, id). He said that his true name [was] Abdul
Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his alias. However, he
admitted that more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser
Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n the afternoon of September 24,
1997, when he was arrested by the police, he was sleeping in the house of Dandao, a relative of his
wife. He was alone. He slept in Dandaos house and not in his house because they ha[d] a sort of a
conference as Dandaos daughter was leaving for Saudi Arabia. He noticed the presence of
policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up and went
out of the house and that was the time that he was arrested. He said he was arrested xxx [at] the
other side of my house; at the other side of the fence where I was sleeping. xxx. At the back of my
house (tsn, p. 7, id.). He does not know who arrested him considering that the one who arrested
me does not have nameplate. He was arrested by four (4) persons. Not one of those who arrested
him testified in Court. He was handcuffed and placed inside a jeep parked at Rio Hondo
Elementary School. According to him, he did not fire a gun at the policemen from [t]he second
floor of his house. He said the policemen [were] the one[s] who fire[d] at us (tsn, p. 5, id.). If he
fired a gun at the policemen for sure they [would] die [b]ecause the door is very near x x x the
vicinity of my house. He does not own the M14 rifle (Exh. B-3) which according to policemen, he
used in firing at them. The gun does not belong to him. He does not have a gun like that (tsn, p.
15, id.). A policeman also owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17,
id). He said that the M79 rifle (Exh. B-4), the three (3) empty M16 rifle magazines (Exh. G; G-1
to G-2), the two (2) M14 magazines with live ammunition (Exh. G-3; G-4); the two (2) caliber .38
revolvers (Exhs. B-1; B-2), the fifty (50) aluminum foils each containing shabu (Exhs. J-1 to J-50)
placed inside a pencil case (Exh. J, the assorted coins placed inside a blue bag (Exh. W) and the
white crystalline stone (Exh. K) all do not belong to him. He said that the policemen just produced
those things as their evidence. The firearms do not belong to him. They were brought by the
policemen (tsn, p. 43, May 4, 1998). Regarding the blue bag containing assorted coins, he said:
that is not ours, I think this (is) theirs, xxx they just brought that as their evidence (tsn, pp. 15-24,
id.)
Walpan Ladjaalam declared there were occupants who were renting his extension house. He
affirmed that he owns that house. Four (4) persons were staying in the extension house. He could
only recognize the husband whose name is Momoy. They are from Jolo. They left the place
already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998).
He does not know prosecution witness Rino Locson y Bartolome. Although Locson recognized
him, in his case he does not know Locson and he does not recognize him (tsn, p.11, id). He did not
sell anything to Locson and did not entertain him. He is not selling shabu but he knows for a fact
that there are plenty of person who are engaged in selling shabu in that place, in that area known
as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id).
After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day
and one night before he was transferred to the City jail. While at the police station, he was not able
to take a bath. He smokes two packs of cigarette a day. While he was at the police station, he
smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with [a] match.
From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where
he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998).
During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar
(Sikkal) Usman, the younger brother of his wife were killed. Walpan Ladjaalam said that he saw
that it was the policeman who shot them[,] only I do not know his name. They were killed at the
back of his house. He said that no charges were filed against the one responsible for their death
(tsn, pp. 30-33- May 4, 1998).
Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam
whom he calls Hadji Id at the time the police raided the house. She is the mother of Ahma
Sailabbi. She was together with Babo Dandan, two small children and a helper when soldiers
entered the house. (W)hen they arrived, they kept on firing (their guns) even inside the house (tsn,
p.5, May 5, 1998). They were armed with short and long firearms. They searched the house and
scattered things and got what they wanted. They entered the room of Walpan Ladjaalam. They
tried to open a bag containing jewelry. When Anilhawa tried to bring the bag outside the room,
they grabbed the bag from her and poked a gun at her. At that time Walpan Ladjaalam was not in
the house. Ahamad Sailabbi was also not in the house. A Search Warrant was shown to Anilhawa
after the search was conducted and just before the policemen left the place. Anilhawa Ahamad said
that it was already late in the afternoon[;] before they left that was the time the Search Warrant
(was) given to us by xxx Barangay Captain Hussin Elhano (tsn, pp.6-8, May 5, 1998). Barangay
Chairman Elhano arrived already late in the afternoon, almost sundown (tsn, p. 9, id). Anilhaw
declared that aside from a bag containing jewelry and a bag full of money, she had not seen
anything else that was taken from Walpan Ladjaalams house (tsn, pp. 9-12, id).
Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 oclock [o]n the afternoon
of September 24, 1997, ha was standing in front of his house when policemen arrived and
immediately arrested him. He was about to go to the City Proper to buy articles he was intending
to bring to Sabah. He had around P50,000.00 placed inside a waist bag tied around his waist. The
policemen told him to lie down in prone position and a policeman searched his back. They pulled
his waist bag and took his DiaStar wrist watch. He was shot three times and was hit on the
forehead leaving a scar. His injury was not treated. He was taken to the police station where he
was detained for one day and one night. He was detained at the City Jail for three months and five
days after which he was released (tsn, pp. 25-29, May 5, 1998).
Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she
was in the house of her parents lying together with her husband Sikkal Usma. There is only one
house between her parents house and the house of Walpan Ladjaalam. Her husband Sikkal Usman
is the brother of Nur-in Ladjaalam, Walpans wife. When Melba heard shots, she went downstairs.
A policeman was looking for her husband. The policeman called her husband. When her husband
went down, he was instructed by the policeman to lie down in prone position. Then the policeman
shot her husband. The policeman had two other companions who also shot her husband while he
was lying down in prone position (tsn, pp.2-7, May 5, 1998).
Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997,
she was sitting at the door of her house watching her children playing when a motorcyle, driven by
a person, stopped near her house. The driver was Gaganting whom she called a soldier. He went
down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised her
hands. She got her children and when she was about to enter the room of her house, Gaganting
again poked a gun at her and there was a shot. As a result of firing, three persons died, namely,
Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998).
Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o clock [o]n the
afternoon of September 24, 1997, he was fetched by two policemen at Catabangan where he was
attending a seminar. Because of traffic along the way, they arrived at the Rio Hondo already late in
the afternoon. He saw policemen were already inside the house. Upon entering the gate, he saw
Walpan at the gate already handcuffed. Walpan called him but the police advised him not to
approach Walpan. The search was already over and things were already taken inside the house.
When he went inside the house, he saw the things that they (policemen) searched, the firearms and
the shabu (tsn, p. 17. May 8, 1998). He did not see the Search Warrant. What was shown to him
were the things recovered during the search which were being listed. They were being counted and
placed on a table. Upon seeing the things that were recovered during the search, I just signed the
receipt (Exh. P; P-1) of the things x x x taken during the search (tsn, pp. 17-18. May 8, 1998). He
saw three dead bodies at the side of the fence when he went to the other side of the house. The
three persons were killed outside the fence of Walpan Ladjaalam (tsn, p. 18, id).[16]
The Trial Courts Ruling
The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of
Search Warrant No. 20 issued on the same day. However, the lower court nullified the said
Warrant because it had been issued for more than one specific offense,[17] in violation of Section
3, Rule 126 of the Rules of Court.[18] The court a quo ruled:
It should be stated at the outset that Search Warrant No. 20 is totally null and void because it was
issued for more than one specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of
Court which provides that A search warrant shall not issue but upon probable cause in connection
with one specific offense xxx. In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court
ruled that a search warrant for more than one offense - a scatter shot warrant - violates Section 3,
Rule 126 of the [R]evised Rules of Court and is totally null and void.[19] (emphasis in the
original)
Nevertheless, the trial court deemed appellants arrest as valid. It emphasized that he had shot at
the officers who were trying to serve the void search warrant. This fact was established by the
testimonies of several police officers,[20] who were participants in the raid, and confirmed by the
laboratory report on the paraffin tests conducted on the firearms and appellant.[21] Additionally,
the judge noted that Appellant Ladjaalam, based on his statements in his Counter Affidavit,
impliedly contradicted his assertions in open court that there had been no exchange of gunfire
during the raid.[22] The trial court concluded that the testimonies of these officers must prevail
over appellants narration that he was not in his house when the raid was conducted.
Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus:
Under the circumstances, the policemen had authority to pursue and arrest Walpan Ladjaalam and
confiscate the firearm he used in shooting at the policemen and to enter his house to effect said
arrest and confiscation of the firearm. Under Rule 113, Section 5 (a), of the Rules of Court, A
peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in his
presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense. An offense is committed in the presence or within the view of an officer,
within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the
offense, although at a distance, or hears the disturbances created thereby and proceeds at once to
the scene thereof. At the time the policemen entered the house of accused Walpan Ladjaalam after
he had fired shots at the policemen who intended to serve the Search Warrant to him, the accused
was engaged in the commission of a crime, and was pursued and arrested after he committed the
crime of shooting at the policemen who were about to serve the Search Warrant.[23]
As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14
rifle (with a magazine containing seventeen live ammunition)[24] used by appellant against the
police elements, two M14 magazines, and three other M16 rifle magazines.[25] The trial court
observed that these items were in plain view of the pursuing police officers. Moreover, it added
that these same items were evidence [of] the commission of a crime and/or contraband and
therefore, subject to seizure[26] since appellant had not applied for a license to possess firearm
and had not been given authority to carry firearm outside his residence.[27]
For being incredible and unsupported by evidence, appellants claim that the items that were seized
by the police officers had been planted was disbelieved by the trial court. It ruled that if the police
officers wanted to plant evidence to incriminate him, they could have done so during the previous
raids or those conducted after his arrest. To its mind, it was unbelievable that they would choose to
plant evidence, when they were accompanied by the barangay chairman and a radio reporter who
might testify against them. It then dismissed these allegations, saying that frame-up, like alibi, was
an inherently weak defense.[28]
The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as
follows:
The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and
SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and maintained a
drug den in his extension house where shabu or methamphetamine hydrochloride, a regulated
drug, was sold, and where persons or customers bought and used shabu or methamphetamine
hydrochloride by burning the said regulated drug and sniffing its smoke with the use of an
aluminum foil tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are
used in any form or are found. Its existence [may be] proved not only by direct evidence but may
also be established by proof of facts and circumstances, including evidence of the general
reputation of the house, or its general reputation among police officers. The uncorroborated
testimony of accused Walpan Ladjaalam a.k.a. Warpan that he did not maintain an extension house
or a room where drug users who allegedly buy shabu from him inhales or smokes shabu cannot
prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He admitted that
he is the owner of the extension house but he alleged that there were four (4) occupants who
rented that extension house. He knew the name of only one of the four occupants who are
allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorroborated, Walpans
testimony was not elaborated by evidence as to when or for how long was the extension house
rented, the amount of rental paid, or by any other document showing that the extension house was
in fact rented. The defense of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan is a weak
defense. Denial is the weakest defense and cannot prevail over the positive and categorical
testimonies of the prosecution witnesses. Denials, if unsubstantiated by clear and convincing
evidence, are negative and self-serving evidence which deserve no weight in law and cannot be
given evidentiary weight over the testimony of credible witnesses who testify on affirmative
matters. As between the positive declaration of the prosecution witnesses and the negative
statements of the accused, the former deserve more credence.[29]
In conclusion, the trial court explained appellants liability in this manner:
x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his
house to serve a search warrant constitutes the crime of direct assault with multiple attempted
homicide[,] not multiple attempted murder with direct assault[,] considering that no policeman
was hit and injured by the accused and no circumstance was proved to qualify the attempted
killing to attempted murder.
The accused Walpan Ladjaalam a.k.a. Warpan cannot be held liable [for] the crime of Violation of
Section 16, Article III, in relation to Section 21, Article IV, of Republic Act 6425 otherwise known
as the Dangerous Drugs Act of 1992, as amended, because the fifty (50) pieces of folded
aluminum foils having a total weight of 1.7426 grams all containing methamphetamine
hydrochloride or shabu allegedly found in his house are inadmissible as evidence against him
considering that they were seized after [a] search conducted by virtue of Search Warrant No. 20
which is totally null and void as it was issued for more than one offense, and were not found in
plain view of the police officers who seized them. Neither could the accused be held liable for
illegal possession of firearms and ammunition except for the (1) M14 rifle with Serial Number
1555225 and with magazine containing fifteen (15) live ammunition and two more M14 rifle
magazines with twenty (20) and twenty-one (21) live ammunition respectively considering that the
policemen who recovered or seized the other firearms and ammunition did not testify in court. The
blue bag containing assorted coins cannot be returned to the accused Walpan Ladjaalam a.k.a.
Warpan because according to the accused the blue bag and assorted coins do not belong to him[;]
instead the said assorted coins should be turned over to the National Treasury.[30]
The Issues
In his Brief, appellant submits the following Assignment of Errors:

I
The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first
at the police officers who went to his house to serve a search warrant upon him which led to an
exchange of fire between Ladjaalam and the police officer.
II
The trial court erred when it denied the appellant the right and opportunity for an ocular inspection
of the scene of the firefight and where the house of the appellant [was] located.
III
The trial court erred when it ruled that the presumption of regularity in the performance of their
duties [excluded] the claim of the appellant that the firearms and methamphetamine hydrochloride
(i.e. shabu) were planted by the police.[31]
In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for
ocular inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-up. In
addition, we shall also discuss the proper crimes and penalties to be imposed on appellant.
The Courts Ruling
The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection
Appellant insists that the trial court erred in denying his request for an ocular inspection of the
Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court a
better perspective and an idea with respect to the scene of the crime.[32] We do not agree.
We fail to see the need for an ocular inspection in this case, especially in the light of the clear
testimonies of the prosecution witnesses.[33] We note in particular that the defense had even
requested SPO1 Amado Mirasol Jr. to sketch the subject premises to give the lower court a fairly
good idea of appellants house.[34] Viewing the site of the raid would have only delayed the
proceedings.[35] Moreover, the question whether to view the setting of a relevant event has long
been recognized to be within the discretion of the trial judge.[36] Here, there is no reason to
disturb the exercise of that discretion.[37]
Second Issue: Credibility of Prosecution Witnesses
Appellant, in essence, questions the credibility of the prosecution witnesses.[38] Suffice it to state
that the trial courts assessment of their credibility is generally accorded respect, even finality.[39]
After carefully examining the records and finding no material inconsistencies to support appellants
claim, we cannot exempt this case from the general rule.[40] Quite the contrary, the testimonies of
these witnesses positively showed that appellant had fired upon the approaching police elements,
and that he had subsequently attempted to escape. SPO1 Amado Mirasol Jr.[41] testified thus:
PROSECUTOR NUVAL:
Q: And, this trail is towards the front of the house of the accused?
A: Yes.
Q: And its there where you were met by a volley of fire?
A: Yes, Your Honor.
COURT:
Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You said
you were fired upon?
A: More or less, five (5) meters.
xxxxxxxxx
PROSECUTOR NUVAL:
Q: Now, you said you were able to enter the house after the gate was opened by your colleague
Felipe Gaganting ... I will reform that question.
Q: Who opened the gate Mr. Witness?
A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.
Q: And, at that time you were hiding at the concrete fence?
A: Yes.
Q: Now, when this gate was opened, you said you went inside the house, right?
A: Yes.
Q: What did you see inside the house?
A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran
[sic] Ladjaalam at the ground floor. We went inside the sala on the ground floor of his house[;] I
saw two old woman.
xxxxxxxxx
PROSECUTOR NUVAL:
Q: Now, what did you do with these two old women?
A: I did not mind those two old women because those two women were sitting on the ground
floor. I was concentrating on the second floor because Ladjaalam was firing towards our group so,
I, together with Ricardo Lacastesantos, went upstairs to the second floor of the house.
Q: Were you able to go to the second floor of the house?
A: Yes.
Q: What happened when you were already on the second floor?
A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence
and immediately went inside the bedroom [o]n the second floor and he went immediately and
jumped from the window of his house x x x leading to the roof of the neighbors house.
xxxxxxxxx
COURT:
Reform. That is leading
Q: What happened when you entered and he jumped to the roofing of the neighbors house?
A: Immediately, I myself, we immediately went downstairs and asked the assistance of the
members of the raiding team to arrest Walfan Ladjaalam.
xxxxxxxxx
PROSECUTOR NUVAL:
Q: Were you able to go down?
A: Yes.
Q: What happened when you were there?
A: We immediately went out and I asked the assistance of the members of the raiding team and the
investigator of the unit especially SPO1 Cesar Rabuya. I was able to manage to arrest Walfan
Ladjaalam.[42]
What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,[43] as
follows:
Q: What did you notice [o]n the second floor?
A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, do
not fire at the second floor because there [are] a lot of children here.
Q: Now, that rifle you said [was an] M14, where did you find this?
A: At the sala set.
Q: This sala set where is this located?
A: Located [on] the second floor of the house.
Q: Is there a sala [o]n the second floor?
A: Yes.
Q: Can you still identify that M14 rifle which you said you recovered from the sale set?
A: Yes.
Q: Why can you identify that?
A: The Serial No. of M14 is 1555225 and I marked it with my initial.
Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this?
A: 1555225 and I put my initial, RJL.
FISCAL NUVAL:
This is already marked as our Exhibit B-3 with magazine, one magazine and seven round
[ammunition].
Q: After recovering this, what did you do with this firearm?
A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I
turned it over to the investigator.
Q: Where did you turn it over?
A: At the crime scene.
Q: Now, that magazine, can you still identify this?
A: Yes.
Q: Why?
A: I put x x x markings.
xxxxxxxxx
COURT:
So, a[si]de from the magazine attached to the M14 rifle you found six more magazines?
A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14.
Q: The M16 magazines [were] empty?
A: Empty.
Q: How about the M14?
A: Found with [ammunition].
xxxxxxxxx
Q: So, where are the three M16 magazines?
A: In the corner.
Q: What did you do with [these] three magazines of M16?
A: I turned [them] over to the investigator.
Q: Can you identify them?
A: Yes, because of my initials[.]
Q: Where are your initials?
A: On the magazines.
Q: RJL?
A: RJL.[44]
These were confirmed by the results of the paraffin tests conducted on appellant and on the
weapons seized during the raid. Both of his hands as well as the weapons, particularly the M-14
which he had used, were positive for gunpowder nitrate. Police Inspector Mercedes Delfin-Diestro
explained in open court:
Q: Okay. Now, what was the result of your examination, Madam Witness?
A: The result of the examination [was] that both hands of the subject person, ha[d] presence of
gun powder nitrates.
Q: What do you mean Madam Witness, what does that indicate?
A: It indicates there is presence of powder nitrates.
Q: Can we conclude that he fired a gun?
A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person
[would be] positive on his hands for gun powder nitrates.
Q: But, most likely, he fired a gun?

A: Yes.
xxxxxxxxx
PROSECUTOR NUVAL:
Q: What about, Madam Witness this Exhibit B-3, which is the M14 rifle. What did you do with
this?
A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there
[were] black and traces of brown residue on the bolt, chamber and in the barrel.
Q: And, that indicates Madam Witness...?
A: It indicates that the gun was fired.
Q: Recently?
A: Because of the traces of brown residue, it could be possible that the gun was fired before the
incident x x x.
COURT:
Q: There is also black residue?
A: Yes.
Q: What does it indicate?
A: It indicates that the firearm was recently fired.
Q: And, where is this swab used at the time of the swabbing of this Exhibit?
A: This one.
PROSECUTOR NUVAL:
May we ask that this be marked as Exhibit B-3-A.
COURT:
Q: The firing there indicates that the gun was recently fired, during the incident?
A: Yes.
Q: And also before the incident it was fired because of the brown residue?
A: Yes, Your Honor.[45] (emphasis supplied)
Duly proven from the foregoing were the two elements[46] of the crime of illegal possession of
firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the
approaching police officers clearly showed the existence of the firearm or weapon and his
possession thereof. Sufficing to satisfy the second element was the prosecutions Certification[47]
stating that he had not filed any application for license to possess a firearm, and that he had not
been given authority to carry any outside his residence.[48] Further, it should be pointed out that
his possession and use of an M-14 rifle were obviously unauthorized because this weapon could
not be licensed in favor of, or carried by, a private individual.[49]
Third Issue: Defense of Frame-up
From the convoluted arguments strewn before us by appellant, we gather that the main defense he
raises is frame-up. He claims that the items seized from his house were planted, and that the entire
Zamboanga police force was out to get him at all cost.
This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to
fabricate, but terribly difficult to disprove.[50] Absent any showing of an improper motive on the
part of the police officers,[51] coupled with the presumption of regularity in the performance of
their duty, such defense cannot be given much credence.[52] Indeed, after examining the records
of this case, we conclude that appellant has failed to substantiate his claim. On the contrary, his
statements in his Counter Affidavit are inconsistent with his testimony during the trial.[53] He
testified thus:
Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit?
A I could not remember.
Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of
December 1997[;] tell us whose signature is this appearing above the typewritten name
FISCAL NUVAL:
Q . . . . Walpan Ladjaalam, whose signature is this?
(Showing)
A Yes, Sir. This is mine.
Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote:
that I was resting and sleeping when I heard the gunshots and I noticed that the shots were directed
towards our house.. and I inspected and x x x we were attacked by armed persons.. and I was
apprehended by the persons who attacked x x x our house; [the] house you are referring to [in] this
paragraph, whose house [are you] referring to, is this [what] you are referring to [as] your house or
the house of your neighbors [from] which you said you heard gunshots?
A Our house.
Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: that [o]n that afternoon
of September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my
companions in my house [were] the two old women and my children, is this correct?
A They were not there.
Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya,
Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house or you were in your
neighbors[] house at that time when you heard gunshots?
A I was in the house near my house.
Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in
[your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct?
A Yes, Sir. This is not correct.[54]
Crime and Punishment
The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct
assault with attempted homicide, and (3) illegal possession of firearms. We will discuss each of
these.
Maintenance of a Drug Den
We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for
which he was correctly sentenced to reclusion perpetua. His guilt was clearly established by the
testimony of Prosecution Witness Rino Bartolome Locson, who himself had used the extension
house of appellant as a drug den on several occasions, including the time of the raid. The formers
testimony was corroborated by all the raiding police officers who testified before the court. That
appellant did not deny ownership of the house and its extension lent credence to the prosecutions
story.
Direct Assault with Multiple Attempted Homicide
The trial court was also correct in convicting appellant of direct assault[55] with multiple counts
of attempted homicide. It found that [t]he act of the accused [of] firing an M14 rifle [at] the
policemen[,] who were about to enter his house to serve a search warrant x x x constituted such
complex crime.[56]
We note that direct assault with the use of a weapon carries the penalty of prision correccional in
its medium and maximum periods, while attempted homicide carries the penalty of prision
correccional.[57] Hence, for the present complex crime, the penalty for direct assault, which
constitutes the most serious crime, should be imposed and applied in its maximum period.[58]
Illegal Possession of Firearms
Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial
court convicted him also of the separate offense of illegal possession of firearms under PD 1866,
as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision
mayor.
The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not
have applied the new law. It contends that under the facts of the case, the applicable law should
have been PD 1866, as worded prior to its amendment by RA 8294.
The trial courts ruling and the OSGs submission exemplify the legal communitys difficulty in
grappling with the changes brought about by RA 8294. Hence, before us now are opposing views
on how to interpret Section 1 of the new law, which provides as follows:
SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to
read as follows:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or
Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000)
shall be imposed if the firearm is classified as high powered firearm which includes those with
bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also
lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 centerfire
magnum and other firearms with firing capability of full automatic and by burst of two or three:
Provided, however, That no other crime was committed by the person arrested.
If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.
If the violation of this Section is in furtherance of or incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an
element of the crime of rebellion or insurrection, sedition, or attempted coup detat.
The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the firearms owned by such firm, company, corporation or
entity to be used by any person or persons found guilty of violating the provisions of the preceding
paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms
without any legal authority to be carried outside of their residence in the course of their
employment.
The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed
firearm outside his residence without legal authority therefor.
Citing People v. Jayson,[59] the OSG argues that the foregoing provision does not cover the
specific facts of this case. Since another crime -- direct assault with multiple unlawful homicide --
was committed, appellant cannot be convicted of simple illegal possession of firearms under the
second paragraph of the aforecited provision. Furthermore, since there was no killing in this case,
illegal possession cannot be deemed as an aggravating circumstance under the third paragraph of
the provision. Based on these premises, the OSG concludes that the applicable law is not RA
8294, but PD 1866 which, as worded prior the new law, penalizes simple illegal possession of
firearms even if another crime is committed at the same time.[60]
Applying a different interpretation, the trial court posits that appellant should be convicted of
illegal possession of firearms, in addition to direct assault with multiple attempted homicide. It did
not explain its ruling, however. Considering that it could not have been ignorant of the proviso[61]
in the second paragraph, it seemed to have construed no other crime as referring only to homicide
and murder, in both of which illegal possession of firearms is an aggravating circumstance. In
other words, if a crime other than murder or homicide is committed, a person may still be
convicted of illegal possession of firearms. In this case, the other crime committed was direct
assault with multiple attempted homicide; hence, the trial court found appellant guilty of illegal
possession of firearms.
We cannot accept either of these interpretations because they ignore the plain language of the
statute. A simple reading thereof shows that if an unlicensed firearm is used in the commission of
any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the
other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating
circumstance, not a separate offense. Since direct assault with multiple attempted homicide was
committed in this case, appellant can no longer be held liable for illegal possession of firearms.
Moreover, penal laws are construed liberally in favor of the accused.[62] In this case, the plain
meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other
interpretation is justified, for the language of the new law demonstrates the legislative intent to
favor the accused.[63] Accordingly, appellant cannot be convicted of two separate offenses of
illegal possession of firearms and direct assault with attempted homicide. Moreover, since the
crime committed was direct assault and not homicide or murder, illegal possession of firearms
cannot be deemed an aggravating circumstance.
We reject the OSGs contention that PD 1866, as worded prior to its amendment by RA 8294,
should be applied in this case. When the crime was committed on September 24, 1997, the original
language of PD 1866 had already been expressly superseded by RA 8294 which took effect on
July 6, 1997.[64] In other words, no longer in existence was the earlier provision of PD 1866,
which justified a conviction for illegal possession of firearms separate from any other crime. It
was replaced by RA 8294 which, among other amendments to PD 1866, contained the specific
proviso that no other crime was committed.
Furthermore, the OSGs reliance on People v. Jayson[65] is misplaced. True, this Court sustained
the conviction of appellant for illegal possession of firearms, although he had also committed
homicide. We explained, however, that the criminal case for homicide [was] not before us for
consideration.
Just as unacceptable is the interpretation of the trial court. We find no justification for limiting the
proviso in the second paragraph to murder and homicide. The law is clear: the accused can be
convicted of simple illegal possession of firearms, provided that no other crime was committed by
the person arrested. If the intention of the law in the second paragraph were to refer only to
homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily,
where the law does not distinguish, neither should we.
The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-
14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the
penalty for the first is prision mayor, for the second it is only prision correccional. Indeed, the
accused may evade conviction for illegal possession of firearms by using such weapons in
committing an even lighter offense,[66] like alarm and scandal[67] or slight physical injuries,[68]
both of which are punishable by arresto menor.[69] This consequence, however, necessarily arises
from the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception
that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has
no discretion to give statutes a new meaning detached from the manifest intendment and language
of the legislature. Our task is constitutionally confined only to applying the law and
jurisprudence[70] to the proven facts, and we have done so in this case.
WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that
appellant is found guilty only of two offenses: (1) direct assault and multiple attempted homicide
with the use of a weapon, for which he is sentenced to 2 years and 4 months to 6 years of prision
correccional; and (2) maintaining a drug den, for which he was correctly sentenced by the trial
court to reclusion perpetua. Costs against appellant.
Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at
its sound discretion, of RA 8294.
SO ORDERED.
Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.
[1] Written by Judge Jesus C. Carbon Jr.

[2] Rollo, pp. 10-15.
[3] The appellant was charged together with his wife Nur-In Ladjaalam and one Ahmad Sailabbi.
Charges against the latter were later dropped.
[4] Also spelled Riohondo.
[5] Rollo, p. 10.
[6] Appellant was charged here together with Nur-In Ladjaalam and Ahmad Sailabbi y Hajaraini.
The charge against the latter two was subsequently dismissed.
[7] Rollo, p. 12.
[8] In this Information, charged were appellant together with one PO2 Nurhakim T. Hadjula and
Ahmad Sailabbi y Hajaraini. Charges against Sailabbi were later dropped; Hadjula still remains at
large.
[9] Rollo, pp. 14-15.
[10] No copy of the fourth Information was attached to the records. In any event, the trial court
acquitted him of this charge.
[11] Assisted by counsel de parte, Atty. Jose E. Fernandez.
[12] Notice of Appeal was filed on September 25, 1998. This case was deemed submitted for
resolution after the Courts receipt of the Brief for the Appellee on May 19, 2000. The filing of a
reply brief was deemed waived, as none was submitted within the reglementary period.
[13] Signed by Solicitor General Ricardo P. Galvez, Assistant Solicitor General Carlos N. Ortega
and Associate Solicitor Rico Sebastian D. Liwanag.
[14] Appellees Brief, pp. 9-16; rollo, pp. 247-254.
[15] Appellants Brief, p. 5; rollo, p. 149. This Brief was signed by Atty. Jose E. Fernandez.
[16] Decision, pp. 23-32; rollo, pp. 51-60.
[17] These are: 1) violation of 16, Article III of RA 6495, otherwise known as the Dangerous
Drugs Act of 1972; 2) violation of PD 1866 penalizing illegal possession of firearm and
ammunition.
[18] It provides:
SEC. 3. Requisite for issuing search warrant. -- A search warrant shall not issue but upon probable
cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized.
[20] These are, inter alia, SPO1 Amado Mirasol Jr., SPO1 Ricardo Lacastesantos, PO3 Enrique
Rivera and PO3 Renato Dela Pea.
[21] Decision, pp. 42-43; rollo, pp. 70-71. Both appellant and the firearms seized tested positive
for gunpowder nitrates.
[22] The trial court quoted the same thus:
[O]n the afternoon of September 24, 1998, I was at home in my house at Aplaya, Rio Hondo,
Barangay Campo Muslim xxx (and) I was resting and sleeping when I heard the sound of gun
reports, which awakened me. Then I noticed that the shots were directed towards our house, hence
I suspected that we were under attack by armed persons. I tried to escape and jumped outside, but
I was apprehended by the persons who attacked our house, before I learned they were police
officers. (Decision p. 35; rollo, p. 63.)
[24] Seen by SPO1 Lacastesantos lying on top of a sofa on the second story of appellants house
when he pursued appellant.
[25] Seen at a corner on the same floor.
[26] Decision, p. 38; rollo, p. 66.
[27] Ibid.
[28] Ibid. p. 51; rollo, p. 79.
[29] Ibid., pp. 48-50; pp. 76-78.
[30] Ibid., pp. 53-54; pp. 81-82.
[31] Appellants Brief, p. 1; rollo, p. 145.
[32] Appellants Brief, p. 19; rollo, 163.
[33] As shown by the pertinent portions quoted below. See People v. Baniel, 275 SCRA 472, July
15, 1997.
[34] TSN, March 4, 1998, pp. 37-38.
[35] See People v. Baniel, supra.
[36] Paras, Rules of Court Annotated, 2nd ed., p. 78, citing Graham on Evidence. See also
Appellees Brief, pp. 21-22.
[37] See People v. Moreno, 83 Phil. 286, April 7, 1949.
[38] Appellants first assignment of error is herein taken up as the second issue.
[39] See People v. Elamparo, GR No. 121572, March 31, 2000; People v. Cupino, et al., GR No.
125688, March 31, 2000; People v. Estorco, GR No. 111941, April 27, 2000; People v. Sultan, GR
No. 132470, April 27, 2000; People v. Mendoza, GR No. 128890, May 31, 2000; People v. Geral,
GR No. 122283, June 15, 2000; People v. Rios, GR No. 132632, June 19, 2000; People v. Molina,
infra.
[40] People v. Narvasa, 298 SCRA 637, November 16, 1998.
[41] The witness is a member of the team that went to Ladjaalams house on September 24, 1997.
He was tasked to bring the barangay captain to appellants house to serve as a witness to the
search.
[42] TSN, March 4, 1998, pp. 18-23.
[43] Also a member or the raiding team. Lacastesantos, together with SPO1 Mirasol, went inside
the house. When appellant tried to escape, Mirasol pursued him; Lacastesantos proceeded to the
second floor.
[44] TSN, March 5, 1998, pp. 23-24, 28-29.
[45] TSN, March 3, 1998, pp. 10-11, 19-20.
[46] In the en banc case of People v. Molina (292 SCRA 742, 777, July 22, 1998), we said:
In crimes involving illegal possession of firearms, the prosecution has the burden of proving the
elements thereof: (1) the existence of the subject firearm; and (2) the fact that the accused, who
owned or possessed the firearm, did not have the corresponding license or permit to possess or
carry the same outside his residence. (footnote omitted)
See also People v. Castillo, GR No. 131592-93, February 15, 2000; People v. Lazaro, GR No.
112090, October 26, 1999; People v. Narvasa, 298 SCRA 637, November 16, 1998.
[47] Signed by Police Senior Inspector Ruperto Rugay Regis Jr.
[48] People v. Lazaro, supra., citing several cases. See also People v. Narvasa, supra.; People v.
Molina, supra.; People v. Villanueva, 275 SCRA 489, July 15, 1997.
[49] People v. Molina, supra.
[50] See People v. Barita et al., GR No. 123541, February 8, 2000; Dizon v. CA, 311 SCRA 1,
July 22, 1999.
[51] In fact, appellant admits that he did not have any misunderstanding with the arresting officers.
Neither could he think of any reason why they would file false charges against him. (TSN, May 4,
1998, p. 42)
[52] See People v. Dizon, supra.
[53] TSN, May 4, 1998, pp. 37-39.
[54] Ibid.
[55] Article 148 of the RPC reads:
ART. 148. Direct assaults. -- Any person or persons who, without public uprising, shall employ
force or intimidation for the attainment of any of the purposes enumerated in defining the crimes
of rebellion and sedition, or shall attack, employ force, or seriously intimidate or resist any person
in authority or any of his agents, while engaged in the performance of official duties, or on
occasion of such performance, shall suffer the penalty of prision correccional in its medium and
maximum periods and a fine not exceeding 1,000 pesos, when the assault is committed with a
weapon or when the offender is a public officer or employee, or when the offender lays hands
upon a person in authority. xxx.
[56] Article 48 of the Revised Penal Code (RPC) reads:
ART. 48. Penalty for complex crimes. -- When a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary means for committing the other, the penalty for
the most serious crime shall be imposed, the same to be applied in its maximum period. (emphasis
ours)
[57] Article 249; cf. 51, RPC.
[58] Section 1 of the Indeterminate Sentence Law provides that the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said Code, and the
minimum of which shall be within the range of the penalty next lower to that prescribed by the
Code for the offense. An authority on criminal law writes that when the accused is guilty of a
complex crime, the penalty immediately lower is the next below the penalty provided for the
gravest crime. (Reyes, The Revised Penal Code, Book One, 1981 ed., p. 769.) Since direct assault
is punishable with prision correccional in its medium and maximum period, the penalty next lower
in degree is arresto mayor (maximum) to prision correccional (minimum). Accordingly, the
indeterminate penalty for direct assault with multiple attempted homicide is 2 years and 4 months
to 6 years of prision correccional.
[59] 282 SCRA 166, 176-177, November 18, 1997.
[60] People v. Quijada, 259 SCRA 191, July 24, 1996; People v. Tac-an, 182 SCRA 601, February
26, 1990.
[61] That no other crime was committed by the person arrested.
[62] See People v. Atop, 286 SCRA 157, February 10, 1998; People v. Deleverio, 289 SCA 547,
April 24, 1998.
[63] See Tanada v. Yulo, 61 Phil. 515, May 31, 1935; Regalado v. Yulo, 61 Phil. 173, February 15,
1935.
[64] People v. Jayson, supra.
[65] Supra at p. 177, per Mendoza, J.
[66] Offenses under the Revised Penal Code which carry a penalty lighter than that for illegal
possession of a high-powered firearm include (1) indirect assault (Article 149), (2) tumults and
other disturbances (Article 153), (3) discharge of firearms (Article 254), (4) light threats (Article
285), and (5) light coercion (Article 287).
[67] Article 155 (1) of the Revised Penal code provides the penalty of arresto menor or fine not
exceeding 200 pesos upon "[a]ny person who within any town or public place, shall discharge any
firearm, rocket, firecracker or other explosive calculated to cause alarm or danger."
[68] Article 266 (1) imposes the penalty of arresto menor "when an offender has inflicted physical
injuries which shall incapacitate the offended party for labor from one to nine days, or shall
require medical attention during the same period." For example, when a person hits the head of
another with the butt of an unlicensed M-14 rifle, thereby incapacitating the latter for one to nine
days, the accused may be charged only with slight physical injuries, not illegal possession of
firearms.
[69] Under Article 27 of the Revised Penal Code, the duration of arresto menor is one to thirty
days.
[70] That penal laws should be liberally interpreted in favor of the accused.
SECOND DIVISION
ANGEL CELINO, SR.,

Petitioner,
- versus -
COURT OF APPEALS, CEBU CITY, HON. DELANO F. VILLARUZ, Presiding Judge, Branch
16, Regional Trial Court, Capiz, Roxas City, and PEOPLE OF THE PHILIPPINES,
Respondents.
G.R. No. 170562
Present:
QUISUMBING,* J., Chairperson,

CARPIO,**
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
Promulgated:
June 29, 2007
x-----------------------------------------------------------------------------------------x
DECISION
CARPIO MORALES, J.:
This petition for certiorari under Rule 65 of the Rules of Court assails the Court of Appeals
Decision dated April 18, 2005[1] affirming the trial courts denial of petitioner Angel Celino, Sr.s
Motion to Quash; and Resolution dated September 26, 2005[2] denying petitioners Motion for
Reconsideration of the said Decision.
The following facts are not disputed:
Two separate informations were filed before the Regional Trial Court of Roxas City charging
petitioner with violation of Section 2(a) of COMELEC Resolution No. 6446 (gun ban),[3] and
Section 1, Paragraph 2 of Republic Act No. (R.A.) 8294[4] (illegal possession of firearm), as
follows:
Criminal Case No. C-137-04
That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and
knowingly carry outside of his residence an armalite rifle colt M16 with serial number 3210606
with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber
during the election period December 15, 2005 to June 9, 2004 without first having obtained the
proper authority in writing from the Commission on Elections, Manila, Philippines.
CONTRARY TO LAW. [5]
Criminal Case No. C-138-04
That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and
knowingly have in his possession and control one (1) armalite rifle colt M16 with serial number
3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same
caliber without first having obtained the proper license or necessary permit to possess the said
firearm.
CONTRARY TO LAW.[6]
Upon arraignment in Criminal Case No. C-138-04, petitioner pleaded not guilty to the gun ban
violation charge.[7]
Prior to his arraignment in Criminal Case No. C-137-04, petitioner filed a Motion to Quash[8]
contending that he cannot be prosecuted for illegal possession of firearms x x x if he was also
charged of having committed another crime of [sic] violating the Comelec gun ban under the same
set of facts x x x.[9]
By Order of July 29, 2004,[10] the trial court denied the Motion to Quash on the basis of this
Courts[11] affirmation in Margarejo v. Hon. Escoses[12] of therein respondent judges denial of a
similar motion to quash on the ground that the other offense charged x x x is not one of those
enumerated under R.A. 8294 x x x. [13] Petitioners Motion for Reconsideration was likewise
denied by September 22, 2004 Resolution,[14] hence, petitioner filed a Petition for Certiorari[15]
before the Court of Appeals.
By Decision dated April 18, 2005,[16] the appellate court affirmed the trial courts denial of the
Motion to Quash. Petitioners May 9, 2005 Motion for Reconsideration[17] having been denied by
Resolution of September 26, 2005,[18] petitioner filed the present petition.
The petition fails.
Petitioners remedy to challenge the appellate courts decision and resolution was to file a petition
for review on certiorari under Rule 45 on or before October 20, 2005 or 15 days after he received
a copy of the appellate court's resolution on October 5, 2005[19]denying his motion for
reconsideration. Instead, petitioner chose to file the present petition under Rule 65 only on
December 2, 2005,[20] a good 58 days after he received the said resolution.
Certiorari cannot be used as a substitute for lost appeal. Certiorari lies only when there is no
appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. Why the
question being raised by petitioner, i.e., whether the appellate court committed grave abuse of
discretion, could not have been raised on appeal, no reason therefor has been advanced.[21]
While this Court, in accordance with the liberal spirit pervading the Rules of Court and in the
interest of justice, has the discretion to treat a petition for certiorari as having been filed under
Rule 45, especially if filed within the reglementary period under said Rule, it finds nothing in the
present case to warrant a liberal application of the Rules, no justification having been proffered, as
just stated, why the petition was filed beyond the reglementary period,[22] especially considering
that it is substantially just a replication of the petition earlier filed before the appellate court.
Technicality aside, the petition fails just the same.

The relevant provision of R.A. 8294 reads:
SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to
read as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. x x x.
"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(P30,000) shall be imposed if the firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .
45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22
center-fire magnum and other firearms with firing capability of full automatic and by burst of two
or three: Provided, however, That no other crime was committed by the person arrested.
"If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of or incident to, or in connection with the crime
of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as
an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.
xxxx
(Underscoring supplied)
The crux of the controversy lies in the interpretation of the underscored proviso. Petitioner, citing
Agote v. Lorenzo,[23] People v. Ladjaalam,[24] and other similar cases,[25] contends that the
mere filing of an information for gun ban violation against him necessarily bars his prosecution
for illegal possession of firearm. The Solicitor General contends otherwise on the basis of
Margarejo v. Hon. Escoses [26] and People v. Valdez.[27]
In Agote,[28] this Court affirmed the accuseds conviction for gun ban violation but exonerated
him of the illegal possession of firearm charge because it cannot but set aside petitioners
conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime
was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun
Ban.[29] Agote is based on Ladjaalam[30] where this Court held:
x x x A simple reading [of RA 8294] shows that if an unlicensed firearm is used in the commission
of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if
the other crime is murder or homicide, illegal possession of firearms becomes merely an
aggravating circumstance, not a separate offense. Since direct assault with multiple attempted
homicide was committed in this case, appellant can no longer be held liable for illegal possession
of firearms.
Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain
meaning of RA 8294's simple language is most favorable to herein appellant. Verily, no other
interpretation is justified, for the language of the new law demonstrates the legislative intent to
favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal
possession of firearms and direct assault with attempted homicide. x x x
xxxx
x x x The law is clear: the accused can be convicted of simple illegal possession of firearms,
provided that no other crime was committed by the person arrested. If the intention of the law in
the second paragraph were to refer only to homicide and murder, it should have expressly said so,
as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.[31]
The law is indeed clear. The accused can be convicted of illegal possession of firearms, provided
no other crime was committed by the person arrested. The word committed taken in its ordinary
sense, and in light of the Constitutional presumption of innocence,[32] necessarily implies a prior
determination of guilt by final conviction resulting from successful prosecution or voluntary
admission.[33]
Petitioners reliance on Agote, Ladjaalam, Evangelista, Garcia, Pangilinan, Almeida, and Bernal is,
therefore, misplaced. In each one of these cases, the accused were exonerated of illegal possession
of firearms because of their commission, as shown by their conviction, of some other crime.[34]
In the present case, however, petitioner has only been accused of committing a violation of the
COMELEC gun ban. As accusation is not synonymous with guilt, there is yet no showing that
petitioner did in fact commit the other crime charged.[35] Consequently, the proviso does not yet
apply.
More applicable is Margarejo[36] where, as stated earlier, this Court affirmed the denial of a
motion to quash an information for illegal possession of firearm on the ground that the other
offense charged [i.e., violation of gun ban] x x x is not one of those enumerated under R.A. 8294 x
x x.[37] in consonance with the earlier pronouncement in Valdez[38] that all pending cases
involving illegal possession of firearm should continue to be prosecuted and tried if no other
crimes expressly indicated in Republic Act No. 8294 are involved x x x.[39]
In sum, when the other offense involved is one of those enumerated under R.A. 8294, any
information for illegal possession of firearm should be quashed because the illegal possession of
firearm would have to be tried together with such other offense, either considered as an
aggravating circumstance in murder or homicide,[40] or absorbed as an element of rebellion,
insurrection, sedition or attempted coup detat.[41] Conversely, when the other offense involved is
not one of those enumerated under R.A. 8294, then the separate case for illegal possession of
firearm should continue to be prosecuted.
Finally, as a general rule, the remedy of an accused from the denial of his motion to quash is for
him to go to trial on the merits, and if an adverse decision is rendered, to appeal therefrom in the
manner authorized by law.[42] Although the special civil action for certiorari may be availed of in
case there is a grave abuse of discretion,[43] the appellate court correctly dismissed the petition as
that vitiating error is not attendant in the present case.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
CONCHITA CARPIO MORALES

Associate Justice
WE CONCUR:
(ON OFFICIAL LEAVE)

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO
Associate Justice
DANTE O. TINGA
Associate Justice
PRESBITERO J. VELASCO, JR.

Associate Justice
ATTESTATION
ANTONIO T. CARPIO
Associate Justice
Acting Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the Courts Division.
REYNATO S. PUNO
Chief Justice
* On Official Leave.
** Acting Chairperson.
[1] CA rollo at 99-103.
[2] Id. at 149.
[3] Rules and Regulations on: (A) Bearing, Carrying or Transporting Firearms or Other Deadly
Weapons; (B) Security Personnel or Bodyguards; (C) Bearing Arms By Any Member of Security
or Police Organization of Government Agencies and Other Similar Organization; (D) Organization
or Maintenance of Reaction Forces During the Election Period in Connection with the May 10,
2004, Synchronized National and Local Elections.
[4] An Act Amending the Provisions of Presidential Decree No. 1866, as Amended, entitled
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE,
DEALING IN, ACQUISITION OR DISTRIBUTION OF FIREARMS, AMMUNITIONS, OR
EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS,
AMMUNITIONS OR EXPLOSIVES AND IMPOSING STIFFER PENALTIES FOR CERTAIN
VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES. (Took effect July 6, 1997)
[5] CA rollo at 24. No copy found in RTC records.
[6] Records, p. 1.
[7] Rollo, p. 8.
[8] Records, pp. 25-31.
[9] Id. at 27.
[10] Id. at 48-52.
[11] En Banc.
[12] 417 Phil. 506 (2001).
[13] Id. at 512.
[14] Records, p. 91.
[15] CA rollo, pp. 2-60.
[16] Id. at 99-103. Penned by Justice Arsenio J. Magpale with the concurrence of Justices
Sesinando E. Villon and Enrico A. Lanzanas.
[17] Id. at 108-117.
[18] Id. at 132. Penned by Justice Arsenio J. Magpale with the concurrence of Justices Sesinando
E. Villon and Enrico A. Lanzanas.
[19] Id. at 131.
[20] Rollo, p. 128.
[21] Heirs of Grio v. Department of Agrarian Reform, G.R. No. 165073, June 30, 2006, 494 SCRA
329, 341 citing Republic v. Court of Appeals, 379 Phil. 92, 97 (2000).
[22] Id. at 342, citing The President, Philippine Deposit Insurance Corporation v. Court of
Appeals, G.R. No. 151280, June 10, 2004, 431 SCRA 682, 688.
[23] G.R. No. 142675, July 22, 2005, 464 SCRA 60.
[24] 395 Phil. 1 (2000).
[25] Evangelista v. Sistoza, 414 Phil. 874 (2001); People v. Garcia, 424 Phil. 158 (2002); People v.
Bernal, 437 Phil. 11 (2002); People v. Pangilinan, 443 Phil. 198 (2003); and People v. Almeida,
463 Phil. 637 (2003).
[26] Supra note 12.
[27] 364 Phil. 259 (1999).
[28] Supra note 23.
[29] Id. at 75.
[30] Supra note 24.
[31] Id. at 35-36.
[32] CONSTITUTION, Art. III, Sec. 14, par. (2).
[33] Vide People v. Concepcion, 55 Phil. 485, 491 (1930), where this Court held that inasmuch as
every defendant is presumed innocent until convicted by a competent court after due process of
law of the crime with which he is charged, [the accused] is still innocent in the eyes of the law,
notwithstanding the filing of the information against him for the aforesaid crime.
[34] Maintenance of drug den and direct assault with attempted homicide in Ladjaalam; robbery in
Evangelista; kidnapping for ransom with serious illegal detention in Garcia and in Pangilinan;
murder and gun ban violation in Bernal; illegal possession of drugs in Almeida; and gun ban
violation in Agote.
[35] On the contrary, petitioner even claimed, through his not guilty plea in Criminal Case No. C-
137-04 that he did not commit a violation of the COMELEC Gun Ban. (Rollo, p. 8)
[36] Supra note 12.
[37] Supra note 13.
[38] Supra note 27.
[39] Id. at 279.
[40] R.A. No. 8294, Sec. 1.
[41] Ibid.
[42] Soriano v. Casanova, G.R. No. 163400, March 31, 2006, 486 SCRA 431, 439.
[43] Socrates v. Sandiganbayan, 324 Phil. 151, 176 (1996).
EN BANC
[G.R. Nos. 124303-05. February 10, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO ATOP @ ALI, accused-

appellant.
DECISION
PANGANIBAN, J.:
The trial court sentenced the appellant to death, holding that his common-law relationship with the
victims grandmother aggravated the penalty. We hold, however, that Sec. 11 of RA 7659
prescribes the capital penalty in rape, only when the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the victim, and not by
reason of any other kinship. On the other hand, relationship as an alternative aggravating
circumstance under Art. 15 of the Revised Penal Code encompasses only the spouse, ascendant,
descendant, legitimate, natural or adopted brother or sister, and relative by affinity in the same
degrees. Outside these enumerations and consistent with the doctrine that criminal laws must be
liberally construed in favor of the accused, no other relationship, kinship or association between
the offender and the victim may aggravate the imposable penalty for the crime committed. The
fact, then, that the offended party is the granddaughter or descendant of appellants live-in partner
cannot justify the imposition of death upon the rapist.
The Case
This is a combined appeal from, and an automatic review of, the Joint Decision of the Regional
Trial Court, Branch 12, of Ormoc City, finding Appellant Alejandro Atop, alias Ali, guilty beyond
reasonable doubt of three (3) counts of rape and sentencing him to two (2) terms of reclusion
perpetua for the first two counts, and to death for the third.
On April 21, 1995, Provincial Prosecutor I Rosario D. Beleta filed four separate informations[1]
against accused-appellant charging him with rape on three separate occasions -- on October 9,
1992, sometime in 1993 and on December 26, 1994 -- as well as with attempted rape on
December 31, 1994. The informations charging rape, except for the date of commission and the
age of the victim, similarly allege the following:
That on or about the 9th day of October, 1992, at Sitio Tambunan, Brgy. Sta. Rosa, Municipality
of Matag-ob, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, by means of force and intimidation, did then and there wilfully [sic],
unlawfully and feloniously have carnal knowledge of the herein offended party REGINA
GUAFIN, 11 years old, the accused is the live-in partner of her grandmother with whom she is
living with [sic], against her will and without her consent, with the use of a knife, mashed her
breast, embraced, kissed and inserted his penis over the victims genital organ to accomplish his
lewd design, to her damage and prejudice.
During his arraignment, appellant, assisted by Counsel de Oficio Wenceslao Vanilla of the Public
Attorneys Office, pleaded not guilty.[2] Thereafter, the cases were tried jointly. In his Decision,[3]
the trial judge[4] disposed of the cases as follows:
1. In Criminal Case No. 4627-0 finding the accused Alejandro Atop GUILTY beyond reasonable
doubt of RAPE defined and penalized under Article 335 of the Revised Penal Code. Appreciating
the aggravating circumstances of relationship and nighttime with no mitigating circumstance to
offset any of the two, this court imposes upon the said ALEJANDRO ATOP the sentence of
RECLUSION PERPETUA and to indemnify Regina Guafin the sum of THIRTY THOUSAND
PESOS (P30,000.00) and to pay the costs.
2. In Criminal Case No. 4628-0 finding the accused Alejandro Atop GUILTY beyond reasonable
doubt of RAPE defined and penalized under Article 335 of the Revised Penal Code. Appreciating
the aggravating circumstances of relationship and nighttime with no mitigating circumstance to
offset any of the two, this court imposes upon the said ALEJANDRO ATOP the sentence of
RECLUSION PERPETUA and to indemnify Regina Guafin the sum of THIRTY THOUSAND
PESOS (P30,000.00) and to pay the costs.
3. In Criminal Case No. 4630-0 finding the accused Alejandro Atop NOT GUILTY for
insufficiency of evidence.
4. In Criminal Case No. 4629-0 finding the accused ALEJANDRO ATOP guilty beyond
reasonable doubt of RAPE defined under Article 335 of the Revised Penal Code, as amended by
Republic Act 7659. Appreciating the aggravating circumstances of relationship and nighttime with
no mitigating circumstance to offset any of the two, this court imposes upon the said
ALEJANDRO ATOP, also known as Ali, the sentence of DEATH. Further, the same Alejandro
Atop is directed to indemnify Regina Guafin the sum of THIRTY THOUSAND PESOS
(P30,000.00) as moral damages and to pay the costs.
By reason of the imposition of two reclusion perpetua and of the death penalties the jail warden is
directed to immediately commit the person of Alejandro Atop to the National Penitentiary at
Muntinlupa, Metro Manila while awaiting the review by the Supreme Court of this decision.[5]
The Facts
Version of the Prosecution
The prosecutions evidence is narrated by the trial court [6] as follows:
Private complainant Regina Guafin, told the court that she is a granddaughter of Trinidad Mejos
and that the accused Alejandro Atop is the common law husband of said Trinidad Atop [sic]. Her
mother is a daughter of said Trinidad Atop [sic] and lives in Pangasinan. She is an illegitimate
child and she does not even know her father. Since her early childhood she stayed with her
grandmother Trinidad Atop [sic] and the accused at Barangay Santa Rosa, Matag-ob, Leyte.
Sometime in 1991 when she was already 10 years of age the accused started having lustful desire
on her. The accused then inserted his finger into her vagina. She told her grandmother about this
but her grandmother did not believe her. She was then told by her grandmother, Trinidad Mejos,
that what her grandfather did to her was just a manifestation of fatherly concern. She continued
staying with her grandmother and her common law husband Alejandro Atop, the herein accused.
On October 9, 1992, she was called by the accused Alejandro Atop to do something for him. When
she approached him the accused rushed towards her, removed her panty and inserted his male
organ into her vagina. She was not able to do anything to resist him because the accused gagged
her mouth and was carrying a knife with him. She was then 12 years old when the first rape was
committed to her and at that time her grandmother was then attending a delivery since her
grandmother was a hilot. When her grandmother returned home she told her what the accused did
to her but her grandmother, again, refused to believe her. She also remember [sic] of another
incident wherein she was raped again by the accused Alejandro Atop. It was in the year 1993 but
she could not recall the month when it was committed. Only she and the accused were then at their
house at Barangay Santa Rosa, Matag-ob, Leyte as her grandmother was at San Vicente attending
to a delivery. Again, she told her grandmother about the heinous acts that the accused did to her
but her Lola refused to believe her.
On December 26, 1994, the accused again raped her. She could not ask for help because her mouth
was gagged by the accused. Aside from gagging her, the accused also carried a knife which he
placed at his side.
On December 31, 1994, while she together with her Aunt Gloria Montealto and her two (2) nieces
Rubilen and Jubilen Atop were about to go to sleep, she noticed that the accused was looking for
her. Upon seeing her the accused rushed towards her and was about to lay on top of her. She
kicked him. After that, the accused caressed and touched his nieces but his nieces also kicked him.
Thereafter, the accused stopped molesting her and his nieces and went to sleep instead. In the
following morning, January 1, 1995, she went to the barrio to go to school. She then forgot that
there were no classes. She was not able to get a ride towards the school, so she went directly to the
house of her grandfather Zacarias Geva. While she was at the house of her Lolo Geva, the accused
arrived and immediately entered the house of her grandfather. The accused was met by Rubilen
Atop who was about to box him but they immediately went out of the house and the accused
followed them. The accused wanted to bring her back to their house but she refused. So, the
accused pulled her. The accused kept on holding her until they reached the waiting shed were the
accused smashed her to the concrete wall.
She reported the incidents of rape that happened in 1992, 1993 and 1994 only in January 1995. It
took her so long to report the said incidents because she was afraid. The accused threatened to kill
her should she tell anybody about the incidents. She was accompanied by her Aunts Fe Decio and
Rosenda Andales in reporting the said incidents to the police. Her statement was taken by the
police at the police headquarters. Thereafter, she filed a complaint with the Municipal Trial Judge
of Matag-ob, Leyte. x x x In her sworn statement which was also marked as Exhibit 1 for the
defense, she only stated therein that what was inserted into her vagina on July 1991 was only the
finger of the accused. Out of fear, she deliberately concealed from the investigator what actually
had happened to her because at that time, because the accused was not yet apprehended and she
was afraid that the accused would kill her. Then she filed complaints with the Office of the
Provincial Prosecutor and requested the fiscal to make a re-investigation in these cases. She told
the Fiscal the truth of what was done to her by the accused because at that time the accused was
already arrested. x x x
xxxxxxxxx
Another prosecution witness Fe Decio, an aunt of the private offended party Regina Guafin,
testified that she knows the accused Alejandro Atop, the latter being her stepfather. She pointed in
court the said accused. She testified also that when her niece Regina Guafin went to her residence
at Himarco, Palompon, Leyte on January 2, 1995, she noticed that Regina Guafin had abrasions on
her body and was then crying. She asked her the reason why she cried and Regina told her that on
January 1, 1995 the accused again tried to rape her but did not succeed because she fought back
and was able to resist. The abrasions in her body was the result of the maltreatments made by the
accused who forcibly pulled her back to their house. Further, Regina told her that the said accused
Alejandro Atop had raped her 3 to 4 times. She was told by Regina when the said incidents
happened but she forgot the actual dates that the latter told to her. She accompanied Regina to the
police authorities of Matag-ob, Leyte and reported the said incidents. During the time that Regina
was investigated by the police authorities, the accused had also fled. Thereafter, she submitted
Regina for a medical examination at the Ormoc District Hospital. Then, Regina Guafin filed a
complaint at the MCTC of Matag-ob, Leyte.
On cross examination, she testified that they offer no objection with the relationship of the
accused to her mother. In fact during the time that the accused and her mother were living
together, they were in good terms with the accused. She denied the fact of sending her mother to
Manila for the purpose of separating her from the accused Alejandro Atop because it was only the
decision of her mother to have a vacation in Manila. She testified also that the age of her mother is
more than 50 years old. [7]
The third prosecution witness, Dr. Judith V. Lomocso who was a resident gynecologist at the
Ormoc District Hospital, testified that she examined Regina Guafin. Her findings were reduced in
writing, as follows:
External Findings:
1. Incised wound with scab formation (L) middle finger.

2. Tenderness (L) breast.
OB-Gyne Findings:
External genetalia [sic] - grossly normal
- negative pubic hair

Vaginal canal - admits 2 fingers with ease
hymen - healed laceration
uterus - small
LMP - December 4, 1994[8]
Version of the Defense
Appellant denied the accusations of Guafin and imputed ill motive upon her aunts, who were the
daughters of his live-in partner.[9] The trial court summed up his testimony this wise:
Accused Alejandro Atop [then 37 years old] testified that he and Trinidad Mejos had been living
together as husband and wife for about 10 years already. When they started living together,
Trinidad Mejos was already a widow with eight (8) children of her previous marriage. When he
started to live with Trinidad Mejos the latters children became mad at him because their mother
was already old and he was still young. He personally knew Regina Guafin, the latter being their
adopted child. Regina Guafin was still 2 years old when he and his wife took care of her. That
Regina Guafin continuously resided at Sta. Rosa, Matag-ob, Leyte. The other persons who also
lived with them aside from Regina Guafin, were the three sons of Trinidad and his two (2) nieces
whom he took from Butuan City and sent them to school. He denied committing rape against
Regina Guafin on October 9, 1992, in the year 1993 and on December 26, 1994. On December 31,
1994, while he was at his house, Regina went to the barrio proper to go to school. In the afternoon
of the same date, he went to fetch Regina Guafin because at that time classes were not regular yet.
At that time, the companions of Regina were Jovelyn and Rubilyn. He also denied committing an
offense against Regina Guafin on December 31, 1994. He testified also that he did not evade arrest
by going out of Matag-ob, Leyte because during that time he was working in Hideco as a laborer.
The reason why Regina Guafin filed a case against him because the said private complainant was
coached by her aunt who wanted him and his wife Trinidad to be separated.
On cross examination, he testified also that he was told by his cousin Nicolas Valencia that her
[sic] wife Trinidad was prevented by her children from visiting him in jail upon her arrival from
Manila.[10]
Ruling of the Trial Court

The court a quo evaluated the testimony of the offended party in this manner:
x x x this court observed both the complainant and the accused when both were on the witness
stand. The tears that spontaneously flowed from the private complainants eyes and the sobs that
punctuated complainants testimony when asked about her experience with the accused eloquently
conveyed the hurt, the pain, and the anguish the private complainant has suffered and lived with
during all the years. When she told the court that she was raped by the accused she said it all with
candor. The mixed expression of sadness and anger shown in the private complainants face during
her testimony convinced this court that she was telling the truth. This court then found nothing in
the evidence which would indicate in any way that the said Regina Guafin was motivated in
narrating to the court her ordeal other than her quest for justice. The defenses claim that Regina
was coached by her aunts to fabricate her rape story in order to force their mother Trinidad Mejos
to separate from the accused is nothing but a mere speculation [upon] which this court found no
probative value. This court then gives the testimony of the private offended party full faith and
credit.[11]
The trial court also ruled that the circumstances of nighttime and relationship aggravated all the
three incidents of rape, but that there was no sufficient evidence proving attempted rape on
December 31, 1994. Considering that the last rape occurred after the effectivity of RA 7659, the
death penalty law, the court meted out the capital punishment to accused-appellant.
Issues
In his appeal[12] before us, appellant assigns the following errors:[13]
I. The trial court erred in appreciating the circumstances of nighttime and relationship as
aggravating the penalty imposable for the rape allegedly committed on October 9, 1992, in 1993
and on December 26, 1994.
II. The trial court erred in finding accused guilty beyond reasonable doubt of the crimes charged.
The Courts Ruling
The appeal is partly meritorious. We find that the alleged aggravating circumstances were not duly
proved.
First Issue: Nighttime and Relationship
The time-settled rule is that nocturnity, as an aggravating circumstance, must have been
deliberately sought by the offender to facilitate the crime or prevent its discovery or evade his
capture or facilitate his escape.[14] The culprit must have purposely taken advantage of the cover
of night as an indispensable factor to attain his criminal purpose.[15]
We find merit in Appellant Atops contention, to which the solicitor general agrees, that the
prosecution failed to prove that nighttime was deliberately sought by appellant to facilitate his
dastardly acts. In fact, the prosecution failed to show that appellant consummated his carnal
designs at night, except only for the December 26, 1994 incident which the victim said occurred at
11:00 p.m.[16] Much less is there any evidence substantiating the trial courts conclusion that
appellant intentionally sought the darkness to advance his criminal exploits.
Neither can we appreciate relationship as an aggravating circumstance. The scope of relationship

as defined by law encompasses (1) the spouse, (2) an ascendant, (3) a descendant, (4) a legitimate,
natural or adopted brother or sister, or (5) a relative by affinity in the same degree.[17]
Relationship by affinity refers to a relation by virtue of a legal bond such as marriage. Relatives by
affinity therefore are those commonly referred to as in-laws, or stepfather, stepmother, stepchild
and the like; in contrast to relatives by consanguinity or blood relatives encompassed under the
second, third and fourth enumeration above. The law cannot be stretched to include persons
attached by common-law relations. Here, there is no blood relationship or legal bond that links the
appellant to his victim. Thus, the modifying circumstance of relationship cannot be considered
against him.
Neither is the following provision of Sec. 11, RA 7659 applicable:
Sec. 11. Article 335 of the [Revised Penal] Code is hereby amended to read as follows:
xxx
The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common
law spouse of the parent of the victim.
xxxxxxxxx
Undisputed is the fact that appellant is not the common law spouse of the parent of the victim. He
is the common law husband of the girls grandmother. Needless to state, neither is appellant the
victims parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree. Hence, he is not encompassed in any of the relationships expressly enumerated
in the aforecited provision.
It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor
of the accused.[18] Courts must not bring cases within the provision of a law which are not clearly
embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so,
too, no person who is not clearly within the terms of a statute can be brought within them.[19] Any
reasonable doubt must be resolved in favor of the accused.[20]
Second Issue: Sufficiency of Prosecution Evidence
However, we do not agree with the claim of appellant that the prosecution evidence was not
sufficient to prove his guilt. In the main, appellant relies on the disparity between, on the one
hand, the allegations of Regina in her sworn statement[21] executed before MCTC Judge Aquilino
A. Inopiquez Jr. of Matag-ob, Leyte which merely prove acts of lasciviousness; and, on the other,
her testimony in court showing three counts of rape.
Such disparity, which at first glance may raise some doubts on the truthfulness of complainants
statements, was cogently and satisfactorily explained by her thus:
Q x x x why did you state in your affidavit that only the finger that [sic] was inserted into your
vagina?
A Because during the time of the investigation, I did not tell what was really true because he was
not yet apprehended, sir.
Q So, you deliberately conceal[ed] from the investigator what actually happened out of fear?
A Yes, your Honor.
CONTINUE
PROSECUTOR
Q And when you appeared before the Office of the Provl. Fiscal, were you investigated?
A Yes, maam.
Q And did you tell the Fiscal the truth of what had this accused done to you?
A Yes, maam.
Q And what was that statement you have given to the Fiscal?
A I told the Fiscal the truth because the accused was already arrested.
Q And what was the truth?
A The truth that it was his penis that was inserted to my vagina.
Q How many times did the accused inserted [sic] his penis into your vagina?
A Many times maam but I can remember only three (3) to four (4) times.
Q And the first time that [sic] was on October 9, 1992?
A Yes, maam.
Q When was the second time he inserted his penis into your vagina?
A In the year 1993.
Q And the third time?
A On December 26, 1994. [22]
From the testimony of Regina, the crimes evidently committed by appellant on the aforestated
dates were consummated rapes, not merely acts of lasciviousness. Initially, she hesitated to
completely divulge her ravishment by appellant because of his threats to kill her should she tell
anybody of his assaults.[23] With his arrest and detention, she mustered the courage to finally and
completely reveal her embarrassing story.
No simple barrio lass would so candidly admit before the public that a man who had lived as
common-law husband to her grandmother had inserted his penis in her vagina for so many times
in the past. It is unthinkable that complainant, a young lady of fifteen years, would allow her
private parts to be examined and would withstand the rigors of a public trial -- along with the
shame, humiliation and dishonor of exposing her own mortifying defilement -- if she was not in
fact ravished. A careful examination of her testimony does not reveal any hint of prevarication.
Rather, her straightforward and unequivocal statements, during both her direct and her cross-
examinations, show indelible badges of truth. As the trial judge keenly observed, The tears that
spontaneously flowed from the private complainants eyes and the sobs that punctuated [her]
testimony when asked about her experience with the accused eloquently conveyed the hurt, the
pain, and the anguish the private complainant has suffered and lived with during all the years.
When she told the court that she was raped by the accused, she said it all with candor. The mixed
expression of sadness and anger shown in the private complainants face during her testimony
convinced this court that she was telling the truth.[24] We find it apt to say once again that when a
woman, especially a minor, says that she has been raped, she says in effect all that is necessary to
show that the crime was committed.[25]
Appellants contention that private complainant was merely induced by her aunts who had objected
to his relationship with their mother, Trinidad Mejos, is a trite defense that is completely
undeserving of credit. It is unnatural and unbelievable for Reginas aunts to concoct a story of rape
of their own very young niece, that would bring shame and scandal not only to her but to the entire
family, especially to their mother. There could have been so many ways to alienate appellant from
their mother, so many crimes to impute to him without dragging the familys honor into it. The
preposterousness of appellants assertion becomes more obvious in light of the fact that this case
was instituted only after ten (10) years of his illegitimate union with Reginas grandmother. If
Reginas aunts truly wanted them to discontinue such relationship, the long wait is inexplicable.
Consequently, in the face of private complainants positive and unequivocal testimony, appellants
plain denial of the accusations against him cannot prevail.[26] It is well-settled that denial, if
unsubstantiated by clear and convincing evidence, is a negative self-serving assertion which
deserves no weight in law.[27] The recognized rule is that testimonies of rape victims who are
young and immature are each worthy of full credence.[28]
Time and again, we have also held that when the question deals with the credibility of witnesses
and their testimonies, the trial courts observations and conclusions deserve great respect and are
often accorded finality, unless there appears in the record some fact or circumstance of weight
which the lower court may have overlooked, misunderstood or misappreciated and which, if
properly considered, would alter the results of the case.[29] The trial judge has the valuable edge
of observing the witness deportment and manner of testifying, her furtive glance, blush of
conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full
realization of an oath[30] -- all of which are useful aids for an accurate determination of a witness
honesty and sincerity. After a thorough review of all the evidence on record, the Court finds no
reason to reverse the trial courts findings on the guilt of appellant.
Penalties Imposable
For the rape incidents on October 9, 1992 and sometime in 1993, the court a quo correctly
imposed the penalty of reclusion perpetua for each of the two criminal acts. The third rape
incident, however, occurred after the effectivity of RA 7659, the law which imposed the death
penalty on certain heinous crimes. Under this amendatory law, the penalty for rape committed
with the use of a deadly weapon is reclusion perpetua to death.[31] This provision is applicable in
the instant case, since private complainant was threatened with a knife when appellant
consummated his beastly acts on her.[32]
In cases where the penalty prescribed is composed of two indivisible penalties and there is neither
an aggravating nor a mitigating circumstance in the commission of the felony, the lesser penalty
should be applied.[33] Since there was no modifying circumstance even in the third rape, the
penalty therefor should be reclusion perpetua, not the graver penalty of death as imposed by the
court a quo. As earlier explained, the attendant relationships enumerated under Sec. 11 of RA 7659
do not apply either.
Consistent with prevailing jurisprudence,[34] we increase the civil indemnity imposed upon
appellant by the trial court to P50,000 for each count of rape. The Court notes that, for appellants
third conviction, the trial court ordered him to indemnify the victim in the amount of P30,000 as
moral damages. Civil indemnity under Art. 100[35] of the Revised Penal Code is separate and
distinct from moral damages under Arts. 2217 and 2219 of the Civil Code.[36] Conformably,
Appellant Atop should indemnify Regina Guafin in the total amount of P150,000 for the three
counts of rape -- separately from payment of moral damages which we find justified under the
circumstances. The moral sufferings of private complainant were obvious during the court
proceedings where, as observed by the trial judge and also noted in the transcripts, she
spontaneously cried and sobbed, and showed a mixed expression of sadness, pain and anger.
WHEREFORE, the Decision appealed from is hereby AFFIRMED, with the MODIFICATION
that Appellant Alejandro Atop shall not suffer the penalty of death but shall SERVE three (3)
terms of reclusion perpetua, one for each of the three (3) counts of rape for which he was found
GUILTY by the trial court, and is ordered to PAY Regina Guafin indemnity in the amount of
P150,000 plus moral damages of P50,000.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, Martinez, Quisumbing, and Purisima, JJ., concur.
[1] Rollo, pp. 10-15; records, pp. 1-5.
[2] Records, p. 34.
[3] Rollo, pp. 23-33.
[4] Judge Francisco H. Escao Jr.
[5] Assailed Decision, pp. 10-11; Rollo, pp. 32-33.
[6] In his brief, the solicitor general adopted this narration.
[7] Assailed Decision, pp. 3-6; Rollo, pp. 25-28.
[8] Records, p. 130.
[9] The 14-page appellants brief, dated May 22, 1997, prepared by the Public Attorneys Office
summarized the evidence for the defense (rollo, pp. 47-48) simply as follows:
Accused denied the charges against him. He denied committing the rape against Regina Guafin on
October 9, 1992, in the year 1993 and on December 26, 1994. He also denied committing an
offense against Regina on December 31, 1994. He suspect[ed] that Regina was coached by her
aunt in filing this complaint against him for the purpose of separating him from his wife Trinidad.
Aside from Regina Guafin, the three sons of Trinidad and his two nieces, Jovelyn and Rubilyn,
were also living with them.
[10] Assailed Decision, p. 6; Rollo, p. 28.

[11] Ibid., p. 7; ibid., p. 29.
[12] This case was deemed submitted for decision upon receipt by this Court on October 17, 1997
of the appellees brief.
[13] Appellants brief, p. 1; Rollo, p. 41.
[14] People vs. Garcia, G.R. No. 118824, July 5, 1996; People vs. Pareja, G.R. No. 88043,
December 9, 1996; People vs. Empacis, 222 SCRA 59, May 14, 1993.
[15] People vs. Ferer G.R. No. 102062, March 14, 1996; People vs. Broncano, G.R. No. 104870,
August 22, 1996.
[16] TSN, August 8, 1995, p. 41.
[17] Art. 15, 2nd par., Revised Penal Code; People vs. Balondo, 30 Phil. 155, 161, October 31,
1969; People vs. Lamberte, 142 SCRA 685, 692, July 11, 1986.
[18] Agpalo, Statutory Construction, 1990 ed., p. 208, citing People vs. Subido, 66 SCRA 545,
September 5, 1975, People vs. Yu Jai, 99 Phil. 725, August 15, 1956; People vs. Terrado, 125
SCRA 648, November 25, 1983, and other cases.
[19] Ibid., citing U.S. vs. Abad Santos, 36 Phil. 243, February 10, 1917, and U.S. vs. Madrigal, 27
Phil. 347, March 28, 1914.
[20] Ibid.
[21] Records, pp. 122-123.
[22] TSN, August 15, 1995, pp. 10-12.
[23] TSN, August 8, 1995, p. 21.
[24] Assailed Decision, p. 7; rollo, p. 29.
[25] People vs. Corea, G.R. No. 114383, March 3, 1997, citing People vs. Vitor, 245 SCRA 392,
June 27, 1995, and People vs. Biendo, 216 SCRA 626, December 16, 1992; People vs. Malabago,
G.R. No. 108613, April 18, 1997.
[26] People vs. Catoltol Sr., 265 SCRA 109, November 28, 1996; People vs. Andres, 253 SCRA
751, February 20, 1996.
[27] People vs. Narsico, 262 SCRA 1, September 18, 1996.

[28] People vs. Galimba, 253 SCRA 722, February 20, 1996; People vs. Rosare, 264 SCRA 398,
November 19, 1996.
[29] People vs. Apilo, 263 SCRA 582, October 25, 1996, citing People vs. Gapasan, 243 SCRA
53, March 29, 1995.
[30] People vs. Diaz, 262 SCRA 723, October 4, 1996, citing People vs. Delovino, 247 SCRA
637, 647, August 23, 1995.
[31] Art. 335, par. 3, Revised Penal Code, as amended by RA 7659.
[32] TSN, August 8, 1995, pp. 15-16.
[33] Art. 63, par. 2, no. 2, Revised Penal Code.
[34] People vs. San Juan, G.R. No. 105556, April 4, 1997; People vs. Apilo, 263 SCRA 582,
October 28, 1996; People vs. Escoto, 229 SCRA 430, January 21, 1994.
[35] Art. 100. Civil liability of a person guilty of felony. -- Every person criminally liable for a
felony is also civilly liable.
[36] People vs. Apilo, supra; People vs. Caballes, G.R. No. 102723-24, June 19, 1997.
www.chanrobles.com
EN BANC
G.R. No. 2229 July 1, 1905
THE UNITED STATES,Plaintiff-Appellee, vs. ROBERT MCMANN,Defendant-Appellant.
W. A. Kincaid for appellant.

Office of the Solicitor-General Araneta for appellee.
WILLARD, J.:
The defendant, McMann, and one McKay were packers at Camp Vicars in Mindanao, employed
by the Quartermaster's Department of the Army. On the day in question the defendant had charge
of some mules about one and one half miles from the camp. McKay was not on guard at the time,
but, for some reason which does not appear, was near the place where the defendant was stationed
with the mules. McKay went to the house of a Moro, Amay Pindolonan, for the purpose of getting
matches with which to light his cigar. With his revolver in his hand he attempted to enter the
house, but the owner would not allow him to do so. A few moments later the defendant arrived at
the same house. He attempted to enter, but was unable to do so on account of the opposition of the
owner. He also carried his revolver in his hand with the hammer raised ready to be discharged. A
Moro named Master, who was there at the time, was carving the head of a bolo with one hand,
holding the blade in the other. The defendant snatched the bolo from him, cutting his fingers. This
Moro left for the camp to report the matter to the authorities. Soon after this McKay and the Moro
Pindolonan, being seated side by side at a distance of from 3 to 6 feet from the defendant, who
was either standing or sitting on the stairway which led into the house, the latter raised his pistol
and fired at McKay. The bullet struck him in the back of the head and killed him instantly. The
Moro at once jumped up, looked around to see where the shot came from, and started to run,
whereupon the defendant shot him. The exact nature of his injuries does not appear,, but it appears
that at the time of the trial, about a month after the event, he was still in the hospital. At some
time, probably after the killing of McKay, although the defendant says it was before, the latter
killed a dog which was on the premises. The defendant and McKay were both drunk at this
time.chanroblesvirtualawlibrary chanrobles virtual law library
That the defendant fired the shot which killed McKay is practically admitted by him in his
testimony and the fact is also proved by three or four eyewitnesses. It is accidental and that he had
no intention of killing McKay. In the face of the positive testimony of the witnesses there is no
ground for saying that the shooting was accidental. Two of the Moros testified that they saw him
discharge his revolver at McKay. In view of the fact that McKay and the Moro were sitting side by
side, it may perhaps have been difficult for the witnesses to have known at which one of the two
the defendant aimed, but their testimony makes it plain that in no event was the discharge of the
revolver accidental.chanroblesvirtualawlibrary chanrobles virtual law library
As to the second claim of the defendant that he had no intention of killing McKay, the only
evidence in support of it is the proof that the defendant and McKay were good friends prior to the
occurrence and that no reason is shown why he should have committed such an act. It may be
difficult to state what the exact cause was. It appears from the testimony that while they were in
the position above stated the defendant was talking to McKay, but McKay said nothing in reply.
The cause for the commission of the crime might be found perhaps in this conversation, if we
knew what it was. Or perhaps the defendant killed McKay because he, the defendant, was drunk.
But whatever the cause may have been it is not absolutely necessary for us to find a motive
therefor. The question of motive is of course very important in cases where there is doubt as to
whether the defendant is or is not the person who committed the act, but in this case, where it is
proved beyond all doubt that the defendant was the one who caused the death of McKay, it is not
so important to know the exact reason for the deed.chanroblesvirtualawlibrary chanrobles virtual
law library
The defendant also claims that the court below erred in holding that the crime was committed with
alevosia. The judge below based his holding upon the fact that McKay was shot from behind. The
authorities cited by the defendant from the supreme court of Spain may be divided into two
classes. One class includes cases in which the evidence did not show by eyewitnesses the exact
way in which the crime was committed. The court held that under these circumstances alevosia
could not be presumed from the condition in which the body was found or from proof that the shot
must have come from behind. These cases have no application to the case at bar, for here the proof
shows exactly how the offense was committed. The second class of cases includes those in which,
after a struggle has commenced between the parties on one side and on the other, and after each
side is notified of the intention of the other side to do them injury, a member of one party is killed
by a member from the other by a blow from behind. These cases have no application to the case at
bar, for here before any struggle between McKay and McMann had commenced, or before there
was any indication, so far as the evidence goes, of any trouble between them, and without any
warning, the defendant shot McKay in the back of the head.chanroblesvirtualawlibrary chanrobles
virtual law library
We do not understand that the defendant claims that he intended to shoot the Moro when he killed
McKay, but even if this claim were made and supported, we do not see how it could change the
result in view of the fact that McKay was shot from behind without any warning and with no
intimation that an attack was to be made upon him or the Moro. What the rule would be had
McKay been facing McMann when the latter fired at the back of the Moro, we do not, therefore,
have to decide.chanroblesvirtualawlibrary chanrobles virtual law library
The court below held that the defendant was drunk at the time the act was committed, but held
also that drunkenness was habitual with him and therefore his condition could not be taken into
consideration for the purpose of lessening the sentence. The defendant in this court claims that the
court erred in holding that drunkenness was habitual with the defendant. The testimony upon that
point furnished by one of the witnesses for the defendant is as follows:
Q. Did you say that you saws the accused and McKay drinking together on the night before the
day of the occurrence? - chanrobles virtual law library
A. Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library
Q. Is it not true that the said night was the first time you saw the accused drinking? -
chanrobles virtual law library
A. No, sir. It is not true. I have seen him drink before.chanroblesvirtualawlibrary chanrobles
virtual law library
Q. But you never saw him drunk before? - chanrobles virtual law library
A. Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q. How many times had you seen the accused drunk before? - chanrobles virtual law library
A. That is a difficult question to answer; I have seen him drunk many times. The first time I
knew the accused I saw him drunk twelve or more times.chanroblesvirtualawlibrary chanrobles
virtual law library
Q. Then you mean to say that drunkenness was habitual with the accused? - chanrobles virtual
law library
A. When I have seen him drinking, usually he retired drunk to the

quarters.chanroblesvirtualawlibrary chanrobles virtual law library
Q. How many times have you seen the accused drinking during the time you have known him?
- chanrobles virtual law library
A. I could not say; too may times to recollect.chanroblesvirtualawlibrary chanrobles virtual

law library
Q. Are you sure of this? - chanrobles virtual law library
A. Yes, sir.
We think this testimony justifies the court below in its holding in view of what is said in some of
the decisions cited by the defendant in his brief. In the case of Commonwealth vs. Whitney (5
Gray; 85) the court said:
The exact degree of intemperance which constitutes a drunkard it may not be easy to define, but
speaking in general terms, and with the accuracy of which the matter is susceptible, he is a
drunkard whose habit is to get drunk, "whose ebriety has become habitual." To convict a man of
the offense of being a common drunkard it is, at the least, necessary to show that he is an habitual
drunkard. Indeed the terms 'drunkard' and 'habitual drunkard' mean the same thing.
In the case of Ludwick vs. Commonwealth (18 Penn. St., 172) the court said:
A man may be an habitual drunkard, and yet be sober for days and weeks together. The only rule
is, Has he a fixed habit of drunkenness? Was he habituated to intemperance whenever the
opportunity offered?
The judgment of the court below is affirmed with the costs of this instance against the
defendant.chanroblesvirtualawlibrary chanrobles virtual law library
Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

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SUPREME COURT
Manila
EN BANC
G.R. No. L-44274 January 22, 1980
vs.
LUISITO SAN PEDRO, et al., accused, ARTEMIO BANASIHAN, defendant-appellant.
Haydee B. Yorac for appellant.
Office of the Solicitor General for appellee.
PER CURIAM:
Automatic review of the death penalty imposed on appellant by the Court of First Instance of
Laguna, for the crime of robbery with homicide, committed, according to the evidence, and as
stated in the appellant's brief, which We quote, as follows:
In the afternoon of June 2, 1970, the lifeless body of a person was found somewhere between the
barrios of Masaya and Paciano Rizal Municipality of Bay, Laguna. The body was brought to the
municipal building of Bay for autopsy. Dr. Fe Manansala-Pantas, in her autopsy report, Exh. B,
noted that the deceased died of profuse hemorrhage due to 23 lacerated and stab wounds and
multiple abrasions found on the different parts of the body of the deceased.
The deceased was identified to be Felimon Rivera, a driver of a passenger jeep belonging to
Pablito delos Reyes, a fruit vendor. Earlier in the day, Rivera was out driving the jeep. But that
was to be the last time for him to drive the jeep for on that same day, he was killed, and his jeep
was no longer found or recovered.
It was not until June 11, 1971, that the police authorities found a concrete lead to the solution of
the case. Rodrigo Esguerra, when apprehended and interviewed by the police, admitted his
participation and named his companions. He gave a written statement, Exh. F. Soon the police
began rounding up the other suspects.
Artemio Banasihan was apprehended sometime in 1972. On March 3 of said year, he was
investigated by Sgt. Juan Tolentino of the Philippine Constabulary. He gave a statement which
was sworn to before the Acting Municipal Judge of Los Baos, Laguna, confessing his
participation in the robbery and killing of Felimon Rivera (Exh. H). In said statement, Banasihan
recounted that four days before June 2, 1970, he and his co-accused met and planned to get the
jeep driven by the deceased. Carrying out their plan, he and Luisito San Pedro approached Rivera
in the afternoon of June 2, 1970 and on the pretext of hiring Rivera's jeep to haul coconuts, they
proceeded to Bo. Puypuy in Bay, Laguna, where they were joined by Salvador Litan and Rodrigo
Esguerra. Esguerra was then carrying a water pipe wrapped in paper. Upon reaching a river
between the barrios of Mainit and Puypuy San Pedro ordered Rivera to stop. Whereupon, at
Esguerra's signal, Litan hit Rivera at the nape with the water pipe. Rivera jumped out of the jeep
but was chased by San Pedro and Litan who stabbed him at the back several times with a dagger.
Esguerra then drove the jeep and the group proceeded to Makati, Rizal, He then joined Nelson
Piso and Antonio Borja. The jeep was brought to Cavite City where it was sold for P2,000.00.
Four days later, Piso went to Los Baos and gave San Pedro, Litan and Banasihan P50.00 each,
with the promise that the balance would be given later. However, the promised balance was not
given them.
As synthesized above, the facts of the instant case are as also found by the trial court, which
appellant, through counsel de oficio, confesses inability to dispute. Admitting thus the accuracy of
the factual finding of the court a quo, appellant raises only questions of law, particularly in the
appreciation of the modifying circumstances proven by the evidence, with a view to reducing the
penalty of death as imposed, to reclusion perpetua as prayed for. This notwithstanding, We did not
relieve ourselves of the duty of reviewing the evidence, for the purpose of the proceedings before
Us is to discover any possible error, specifically in the appreciation of the evidence, that might
have been committed by the trial court that led to an improper imposition of the supreme penalty.
After undertaking the task, We express complete agreement that no reversible error has been
committed by the trial court as to the culpable participation of the appellant as one of the
perpetrators of the capital offense charged.
Specifically, the legal questions raised affecting the degree of culpability of appellant is whether
the aggravating circumstance of craft is absorbed by treachery, and whether the resulting single
aggravating circumstance of treachery should be offset by the mitigating circumstance of lack of
instruction, as appellant claims should be appreciated in his favor, thereby calling for the reduction
of the death penalty to that of life imprisonment.
We cannot subscribe to the theory of craft being absorbed by treachery, as nighttime and abuse of
superior strength may be so absorbed, as held in numerous decisions of this Court.' In the instant
case, craft was employed not with a view to making treachery more effective as nighttime and
abuse of superior strength would in the killing of the victim. It was directed actually towards
facilitating the taking of the jeep in the robbery scheme as planned by the culprits. From the
definition of treachery, it is manifest that the element of defense against bodily injury makes
treachery proper for consideration only in crimes against person as so explicitly provided by the
Revised Penal Code (Art. 14[16]).
Aside from the foregoing observation, decisional rulings argue against appellant's submission.
Thus in the case of U.S. vs. Gampona, et al., 36 Phil. 817 (1917) where the crime charged was
murder, qualified by treachery, craft was considered separately to aggravate the killing. Note that
in this cited case, the crime was killing alone, which has a weightier rationale. for, merging the
two aggravating circumstances, than when, as in crime of robbery with homicide, craft has a very
distinct application to the crime of robbery, separate and independent of the homicide. Yet, it was
held that craft and treachery were separate and distinct aggravating circumstances. The same
ruling was announced in People vs. Sakam, et al., 61 Phil. 27 (1934).
In People v. Malig, 83 Phil. 804, (1949) craft which consisted in luring the victim to another
barrio, was considered absorbed by treachery. This may be so because craft enhanced the
effectiveness of the means, method or form adopted in the execution of the crime, one against
persons, "which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make." Even so, the Court was divided in the
inclusion or absorption of craft by treachery. And again, the offense charged was one solely
against persons.
With the presence of two aggravating circumstances, craft and treachery, it would make no
difference even if the mitigating circumstance of lack of instruction were appreciated in
appellant's favor which is even doubtful from the fact alone, as was allegedly proven by the
testimony of appellant that he cannot read and write but can only sign his name (P. 9, t. s. n. Sept.
1, 1975). This, apart from the fact that as held categorically in the case of People vs. Enot, 6
SCRA 325 (1962) lack of instruction is not applicable to crimes of theft and robbery, much less to
the crime of homicide. The reason is that robbery and killing are, by their nature, wrongful acts,
and are manifestly so to the enlightened, equally as to the ignorant (People vs. Salip Manla et al.,
30 SCRA 389 [1969]).
As recently held by this Court, speaking through Justice Hermogenes Concepcion, Jr., the "criteria
in determining lack of instruction is not illiteracy alone, but rather lack of sufficient intelligence."
It is significant that neither to the trial court nor to the appellant's counsel has the mitigating
circumstance of lack of instruction entered the mind. No attempt was made to prove it, as direct
proof, not mere inference, is required, and must be invoked in the court below (People vs.
Mongado, et al., 28 SCRA 642, [1969]), the reason being that the trial court can best gauge a
person's level of intelligence from his manner of answering questions in court (People v. Manuel,
29 SCRA 337 [1969]). If the trial court did not consider the mitigating circumstance invoked for
the first time here on appeal, it must be because from appellant's testimony, and even more so
from his given occupation as a merchant (T.S.N., p. 3, Sept. 1, 1975), his alleged lack of
intelligence never suggested itself to the trial court or to his lawyer, as entitling him to the
mitigating circumstance of lack of instruction.
WHEREFORE, there being no error committed by the trial court, its decision imposing the death
penalty, together with the indemnity awarded, has to be, as it is hereby, affirmed.
SO ORDERED.
Teehankee, Barredo, Makasiar, Antonio, Concepcion, Jr., Santos, Fernandez, Guerrero, Abad
Santos, De Castro and Melencio Herrera, JJ., concur.
Fernando, C.J., took no part.

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Today is Saturday, September 02, 2017

Republic of the Philippines

Aquino and Gutierrez, JJ., took no part.

The Lawphil Project - Arellano Law Foundation

Today is Saturday, September 02, 2017

Republic of the Philippines

G.R. No. 73489 April 25, 1994

Silvestre Br. Bello for accused-appellant.

The Lawphil Project - Arellano Law Foundation

Today is Saturday, September 02, 2017

Republic of the Philippines

Felipe L. Gozon for defendant-appellant.

Fernando, C.J., concurs in the result.

Today is Saturday, September 02, 2017

Republic of the Philippines

Donato T. Faylona for accused-appellant.

The Lawphil Project - Arellano Law Foundation

Today is Saturday, September 02, 2017

Amadeo D. Seno for accused-appellant.

1 Rollo, pp. 11-12.

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Republic of the Philippines

G.R. No. L-24002 January 21, 1974

Jovito R. Salonga for defendants-appellants.

The Lawphil Project - Arellano Law Foundation

As the lower court explained -

Q: What was that incident about?

A: Armed persons entered our house.

A: One person carrying a long firearm.

Q: How about the other two?

Q: Were they carrying weapons?

A: They have (sic) both of them were carrying short firearms.[20]

On cross examination she further clarified -

Q: When they ransacked your aparador you did not object?

A: They let us sit and warned us not to move.

Q: Who were armed with firearms?

A: Clarito Arizobal and Erly Lignes.

Q: What kind of firearm?

A: At the door of our house.

Q: What was he doing?

A: Bringing a long gun, masked.[21]

For her part, Erlinda Gimenez testified -

Q: Who told you?

A: The one wearing mask.

Q: Were they armed?

A: Yes sir, short gun, sir.

A: Yes sir, because they were tied.[22]

[1] See Information in Crim. Case No.842, p.

[2] See Information in Crim. Case No. 841, p. 1, id.

[3] Id., p. 83.

[4] TSN, 25 October 1995, p. 20.

[5] Id., p. 23.

[6] TSN, 4 March 1997, p. 5.

[7] TSN, 25 October 1995, p. 4.

[8] Id., pp. 10-11.

[9] TSN, 18 March 1998, pp. 3-23.

[11] Rollo, p. 16.

[12] Id., p. 19.

[13] Id., pp. 59-63.

[18] People v. Bariquit, G.R. No. 122733, 2 October 2000.

[19] See Note 18.

[20] TSN, 25 October 1995, p. 16.

[21] TSN, 10 September 1996, p. 32.