the masked men positioned themselves on either side of George and Christopher.
The third man drove the car,
EN BANC
G.R. Nos. 131926 & 138991 June 18, 2003
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
MICHAEL U. PAGALASAN alias "Mike," RONNIE CABALO alias "Romy, ALADIN CABALO, FERDINAND CORTEZ, a
JOHN DOE identified only as FERNANDO, and a PETER DOE identified only as "Bong," Accused.
MICHAEL U. PAGALASAN alias "Mike," Appellant.
DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision1 of the Regional Trial Court of General Santos City, Branch 35,
convicting appellant Michael U. Pagalasan of two counts of kidnapping for ransom of George Lim and his 10-
year-old son Christopher Neal Lim and sentencing him to double death.
The Antecedents
The Spouses George and Desiree Lim and their three young children, one of whom was 10-year-old Christopher
Neal Lim, resided at Villa Consuelo Subdivision, General Santos City. The spouses hired a security guard,
Ferdinand Cortez, from the Valiant Security Agency to provide security services to the family. On September 4,
1994, at 11:00 p.m., the spouses and their children were in the master’s bedroom watching television. The
couple’s housemaid, Julita Sarno, was in the kitchen. She heard knocks on the kitchen door. Thinking that it was
Ferdinand, she opened the door. Four men, about 5’5" to 5’6" tall, each armed with handguns, two of whom
were holding hand grenades, barged into the kitchen. The four intruders wore bonnets over their faces. With
them was Ferdinand, whose hands were tied behind his back. When asked by the masked men where her
employers were, Julita responded that they were in their bedroom. On orders of the intruders, she knocked on
the bedroom door. When George’s daughter opened the door, three of the masked men barged into the room,
while the fourth masked man remained in the sala of the house.2 The three masked men shouted to George and
Desiree: "Walang mangyayari sa inyo basta ibigay ninyo ang kailangan namin." (Nothing will happen to you
provided you give us what we want.)3They ransacked the house, getting cash and valuables. The masked men
gave Desiree a handwritten note,4 and dragged George and Christopher Neal Lim out of the bedroom through
the sala to the garage, where George’s Nissan car was parked for the night. George saw Ferdinand in the sala
with his hands tied behind his back. One of the masked men ordered George to hand over the key to his vehicle,
to board the car and occupy the back seat along with Christopher. Father and son did as they were told. Two of
while the fourth sat on the passenger’s seat beside the driver. The car cruised along the national highway. When
the car was nearing the Gambalan Kitchenette, George and Christopher were blindfolded. The masked men told
them that they would be brought to Polomolok. After about fifteen minutes, the car stopped at Sitio Tupi. The
two men who were seated at the back and the masked man seated beside the driver alighted from the car,
bringing Christopher with them. George was transferred to the front seat beside the driver. George was told that
he would be transported to Maasim.
In the meantime, SPO2 Federico Paño, the duty officer of Police Precinct No. 2, received a radio report that
George Lim and his son Christopher had been kidnapped. Police investigators were dispatched to the Lim
residence to conduct an on-the-spot investigation. They brought Ferdinand and Julita to the police station for
investigation. SPO2 Renato Daga-as, SPO2 Datur Villanueva and SPO1 Alimuddin Timbao were directed to
establish a mobile checkpoint at the intersection of the national highway and a dirt road (Espina Road). The three
policemen boarded a Tamaraw mobile car and parked it at the said intersection. At about thirty meters from the
checkpoint, the masked driver of the Nissan vehicle saw the police car. Instead of running the car through the
checkpoint, the driver stopped and switched off its headlights. He removed his bonnet and George’s blindfold,
warning the latter not to make any false move. George looked at the driver, who turned out to be the appellant
Michael Pagalasan.
The three police officers approached the car. Daga-as went to the right side of the car beside the passenger seat,
while Villanueva went to the left side, near the driver’s seat. For his part, Timbao proceeded to the car’s rear
end. Daga-as and Villanueva identified themselves to George and Michael as police officers on the lookout for a
certain George Lim and his son who had been kidnapped in General Santos City. Daga-as inquired from George
what his name was, and George replied that he was Albert Lim. The driver identified himself as Michael
Pagalasan. George gave a false first name because he was afraid Michael might shoot him. Daga-as noticed that
George’s fingers were trembling. Villanueva knocked at the door on the driver’s side, and tried to open the same,
but it was locked. When Michael himself opened the door, Villanueva pulled him out of the vehicle and brought
him to the mobile car. Michael was suddenly in the custody of the policemen. George then identified himself as
one of the kidnapped victims. He also told the policemen that his son was still with the other kidnappers. The
policemen thereafter searched the Nissan car and found a .38 caliber5 handgun with six live bullets in its
chamber6 and a grenade under the driver’s seat.7 The policemen brought Michael and George to the police
station where Ferdinand was being interrogated by police investigators. Ferdinand told George that he had
nothing to do with the kidnapping, but before he could explain further, he was whisked into the investigation
room. After giving a sworn statement to the police investigator, George was allowed to go home. Desiree gave
George the handwritten letter earlier given to her by the kidnappers before they left the house that evening. In
the letter, the spouses were warned not to coordinate with the military, nor to take any action in connection
with the kidnapping without their knowledge or consent. They were also informed that the malefactors would
communicate with the couple, whether by letter or through the telephone only through "MUBARAK II or
2."8 Julita executed an affidavit in connection with the kidnapping. 9
Police Inspector Antonio Evangelista ordered SPO4 Recio Aniversario to conduct a custodial investigation on
Michael. Recio asked Michael if he wanted to execute an affidavit, and Michael replied that he was going to
execute one. The police investigator inquired if he knew of any lawyer, to which Michael replied in the negative.
The police investigator then suggested Atty. Tomas C. Falgui, a private practitioner, as his counsel. When Michael
agreed, the police investigator phoned the lawyer, requesting the latter to assist Michael while undergoing
custodial investigation. The lawyer agreed and forthwith proceeded to the police station. Michael gave his
confession under custodial investigation with the assistance of Atty. Falgui. 10
In his confession, Michael admitted that upon orders of Ronnie Cabalo, he and three other men, Aladin (Ronnie’s
brother), a Muslim known as Ferdinand, and Bong (a resident of Purok Islam), had kidnapped George and his son
Christopher. Ronnie Cabalo instructed Michael to use George’s vehicle to transport father and son to the banana
plantation where Aladin, Ferdinand and Boy would alight with Christopher, and to thereafter return George to
his house. Aladin had given him a handgun for his use. Ferdinand Cortez was in cahoots with them. He was at
first reluctant to obey Ronnie, but relented when he was told not to be afraid and to use the grenade in case of
trouble. George told him that he had already given money to Aladin, and that Michael’s companions had taken
some pieces of jewelry from him and his wife before they left the Lim residence.
In the light of Michael’s confession, farmer Hadji Aladin Malang Cabalo, Ronie Puntuan and Fernando Quizon
were arrested and detained at Camp Fermin Lira Barracks, General Santos City. In the meantime, on September
6, 1994, George received another handwritten letter, ordering the release of Michael and Ronie Puntuan
because they were innocent, and demanding ₱3,000,000 for Christopher’s release. 11
On September 9, 1994, George received another handwritten letter dated September 9, 1994, this time from
"MUBARAK II or 2" informing him and his wife that the kidnappers did not want the military to be involved nor
innocent people to be prejudiced. The spouses were also warned that their son would not be released alive
unless Ronie Puntuan was freed in three days.12 On the same day at 3:25 p.m., Ronie Puntuan, through counsel,
filed a motion with the MTC praying that he be transferred from the Camp Fermin Lira Barracks to the General
Santos City Jail.13
In the morning of the following day, September 10, 1994, Christopher was rescued by policemen without any
ransom being paid. On September 13, 1994, George executed a sworn statement relating to the incidents that
happened from September 4, 1994 to September 10, 1994.14
Michael was charged with kidnapping for ransom and violation of PD 1866 before the Municipal Trial Court
(MTC) of General Santos City.15
During the initial stage of the preliminary investigation by the MTC on September 6, 1994, Atty. Falgui appeared
as Michael’s counsel and testified on what transpired immediately before, during and after the custodial
investigation, including Michael’s execution of his extrajudicial confession.16 Michael was also placed on the
witness stand and, with the assistance of counsel, testified on his extrajudicial confession. He affirmed the
veracity of the contents of the said confession.17 Subsequently, Michael, through his mother, secured the
services of Atty. Emmanuel V. Fontanilla. On September 12, 1994, Michael executed an affidavit withdrawing his
September 5, 1994 extrajudicial confession, in which he stated that: (a) he was not assisted by counsel of his own
choice when he executed the extrajudicial confession; and (b) Ronie Puntuan, who was arrested and detained,
was not Ronnie Cabalo.18 Michael also executed a counter-affidavit where he denied the accusations against him,
and clarified that he was forced and intimidated into making his September 5, 1994 confession, and he was not
provided with counsel of his own choice during custodial investigation. His constitutional rights under custodial
investigation were allegedly not sufficiently explained to him.19 He filed the said affidavits with the MTC during
the preliminary investigation.
On September 23, 1994, the MTC issued a resolution finding probable cause for charging the accused with
kidnapping for ransom. The Office of the City Prosecutor conducted a reinvestigation of the case. On October 4,
1994, the Office of the City Prosecutor issued a resolution ordering the release of Hadji Aladin Malang Cabalo on
the ground that he was not the Aladin Cabalo referred to by Michael in his confession.20
An Information for violation of PD 1866 was filed against Michael on October 17, 1994 with the Regional Trial
Court of General Santos City, Branch 22, docketed as Criminal Case No. 11062. On November 3, 1994, Michael,
Ronnie Cabalo, Aladin Cabalo, Ferdinand Cortez, a certain John Doe identified as Fernando, and Peter Doe were
charged with kidnapping for ransom in an Information, docketed as Criminal Case No. 11098, which reads:
That on or about September 4, 1994, in General Santos City, Philippines, within the jurisdiction of this Honorable
Court, the said accused, conspiring, and confederating together and mutually helping each other, did then and
there willfully, unlawfully and feloniously kidnap George Lim, and his ten-year-old son, Christopher Neal Lim, for
the purpose of extorting ransom from the said victims.21
The cases were raffled to Branch 22 of the Regional Trial Court. When arraigned in Criminal Case No. 11062 for
Violation of PD 1866, Michael pleaded not guilty. On February 6, 1995, Michael, Ferdinand and Fernando Quizon
were arraigned in Criminal Case No. 11098 and pleaded not guilty.22 Ronnie Cabalo and Aladin Cabalo remained
at-large. On August 24, 1995, the judge hearing the cases inhibited himself. Both cases were re-raffled, assigned
to, and were tried jointly by Branch 35 of the Regional Trial Court.
During the trial, Michael, through counsel, admitted the truth of the contents of the affidavit executed by Julita
Sarno.23 Michael also executed an affidavit on December 5, 1995 alleging inter alia that he was forced at
gunpoint by Boy and Aladin to barge into the Lim residence and drive the latter’s car, and that he did not know
Fernando Quizon.24 After the prosecution had presented all its witnesses, it filed a formal offer of its
documentary evidence including Michael’s December 15, 1995 Sworn Statement and his confession. 25 Michael
did not file any comment or opposition to the said offer. On May 3, 1996, the trial court issued an order
admitting the prosecution’s documentary evidence, including Michael’s confession.26 After the prosecution had
rested its case, Fernando Quizon filed a demurrer to evidence in Criminal Case No. 11098. On July 2, 1996, the
court issued an order granting the demurrer to evidence of the said accused and acquitted him of the charge.27
The Defense and Evidence of the Accused
Ferdinand Cortez denied kidnapping George and Christopher. He testified that he had been employed as a
security guard by the Valiant Security Agency. He was assigned by the agency to protect George Lim and his
family. On the evening of September 4, 1994, Ferdinand was washing George’s car in the garage. The house was
surrounded by a 10-foot wall, and the gate was locked. Ferdinand was shocked when masked men, armed with
handguns, suddenly arrived. They poked their guns at him, maltreated him, and tied his hands behind his back.
The masked men knocked at the door of the house and when the housemaid Julita Sarno opened it, the men
dragged Ferdinand towards the entrance, to make it appear that he was the one knocking. The masked men then
barged into the sala and tied Julita’s hands. Ferdinand claimed he never met any of the kidnappers before
September 4, 1994. He was puzzled why he was being implicated in the case.
For his part, Michael testified that he was a Muslim, 19 years of age, and an elementary school graduate. He
made a living as a conductor of his uncle’s jeepney. At night, the jeepney was parked in Tambler, and it was
where he usually slept. On the evening of September 4, 1994, at about 9:00 p.m., he was in their house at Purok
Islam public market, General Santos City. His friend Bong arrived, and invited him for a stroll and to accompany
the latter to get a motorcycle. Michael agreed. They took a tricycle and arrived at the Villa Consuelo Subdivision.
Michael was surprised when the tricycle stopped near the gate of the Lim residence and masked men suddenly
appeared, poking their guns at him. Bong fled, leaving Michael alone to fend for himself. The masked men
ordered Michael to drive a car, and warned him that if he refused, he would be killed. Momentarily, one of the
men emerged from the house, with George Lim in tow. George gave the key to his Nissan car to one of the
kidnappers, who in turn handed it over to Michael. The men forced George and his son Christopher to board the
car. Father and son were seated between two masked men. Afraid for his life, Michael was forced to drive the
car with one of the kidnappers pointing a gun at him, seated to his right at the passenger’s side. The kidnappers
ordered Michael to drive the car towards the direction of Barangay Ligaya.
When the car reached a dark portion of the road in Barangay Ligaya, three of the men alighted, bringing
Christopher with them. Michael then pleaded to George to bring him first to Tambler, where the jeepney of his
uncle was parked. Michael wanted to sleep there instead of going home. George agreed, and drove the car
himself through Barangay Makar. George told Michael that they had to travel along Espina road, a dirt road,
instead of the regular road because they might encounter policemen, and Christopher might be killed by his
kidnappers. However, the car had to stop at the intersection of the national highway and Espina Road when
George saw policemen and the mobile police car parked at the intersection.
Michael was arrested by the police, blindfolded, and brought to the mobile car where he was also mauled. His
head was banged against the sides of the mobile car. At the precinct, Michael was mauled anew by the
policemen. It was only after he had given his statement to a police investigator that Atty. Falgui arrived and told
Michael, "I am your lawyer."28 Atty. Falgui instructed Michael to tell the whole truth.29 When his mother Camaria
Opong visited him, he told her that he had been blindfolded and mauled at the station, and that because of this,
his body ached. She saw a big hump in his head. On September 8, 1994, she secured the services of Atty.
Fontanilla as counsel of her son. The lawyer went to the City Jail and talked to Michael. Michael showed the
lawyer the contusions and bruises on his body, and the scratches on his neck. Michael told the lawyer that he
had been maltreated by an inmate at the detention cell. He also narrated that he knew nothing about the
kidnapping and that he was only hired by somebody to drive a car. Michael assured the lawyer that he was not
aware of the purpose of the culprits in kidnapping George and Christopher. On September 9, 1994, Atty.
Fontanilla executed an affidavit reiterating the information Michael conveyed to him.30 On September 16, 1994,
Michael filed an urgent motion for medical check-up, which the court granted.31
Dra. Virginia Ramirez, Officer-In-Charge of the City Integrated Health Services, examined Michael on September
22, 1994 and found him suffering from myalgia residual or muscle pains due to mauling, which she surmised took
place about one week to ten days before the examination. She issued a medical certificate of the said
examination.32
On September 24, 1997, the trial court rendered judgment acquitting Ferdinand Cortez and convicting Michael of
kidnapping for ransom, the decretal portion of which reads:
JUDGMENT
WHEREFORE, premises considered, the accused is hereby sentenced as follows:
In Criminal Case No. 11062 for failure of the prosecution to prove the accusation against the accused Michael
Pagalasan beyond reasonable doubt, he is hereby ACQUITTED of the crime charged.
In Criminal Case No. 11098, the accused Michael Pagalasan is hereby found guilty of the crime of kidnapping for
ransom as defined and penalized under Article 267 as amended by Section 8 of Republic Act 7659, and there
being no modifying circumstance to consider, he is sentenced to suffer the EXTREME PENALTY OF DEATH insofar
as the case of George Lim is concerned.
The same penalty of death shall also be imposed against Michael Pagalasan in the case of Christopher Neal Lim
who was kidnapped on the same occasion and was released only on the sixth day after his captivity.
The case of Ferdinand Cortez, for lack of sufficient evidence to convict him, he is hereby ACQUITTED of the crime
charged.
SO ORDERED.33
The trial court ruled in Criminal Case No. 11098 that with or without the confession of Michael, the prosecution
adduced proof beyond reasonable doubt that he, in conspiracy with three others, kidnapped George and
Christopher. It found the testimony of George straightforward and positive, credible and entitled to full
probative weight. The trial court sentenced Michael to double death on its finding that he and his cohorts
kidnapped George and Christopher for the purpose of extorting ransom. It disbelieved Michael’s confession
implicating Ferdinand Cortez, and acquitted the latter for failure of the prosecution to prove his guilt beyond
reasonable doubt. The trial court likewise acquitted Michael in Criminal Case No. 11062.
Michael, now the appellant, asserts that:
I
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF KIDNAPPING FOR
RANSOM OF CHRISTOPHER NEAL LIM DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF KIDNAPPING FOR
RANSOM OF ONE GEORGE LIM WITHOUT ANY BASIS IN FACT AND IN LAW.
III
THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE INTERPOSED BY THE ACCUSED-APPELLANT AND IN
GIVING CREDENCE TO THE INCONSISTENT TESTIMONY OF GEORGE LIM.34
The appellant is guilty of
kidnapping Christopher
under Article 267 of the
Revised Penal Code.
On the first assignment of error, the appellant avers that the prosecution failed to prove his guilt beyond cavil of
doubt for the crime of kidnapping Christopher. George’s testimony that the gun and hand grenade35 were found
in the car, under the seat beside the driver is inconsistent with his own statement before the police investigator
that the said gun and grenade were found in the appellant’s possession; hence, the testimony of George is
incredible and barren of probative weight. The case for the prosecution was enfeebled by its failure to present
Christopher to testify on his kidnapping and to corroborate the testimony of his father. The failure of the
prosecution to present Christopher as a witness raised the presumption that if he had been so presented, he
would have testified on matters adverse to the prosecution. For its part, the Office of the Solicitor General
contends that the testimony of George, its principal witness, as well as those of its other witnesses, is sufficient
to prove, beyond reasonable doubt, that the appellant conspired with three others in kidnapping Christopher for
ransom. There was no need for the prosecution to present Christopher to testify on his kidnapping, as his
testimony would be merely corroborative of his father’s account of events.
The contention of the appellant is barren of merit.
Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads:
ART. 267. Kidnapping and serious illegal detention. – Any private individual who shall kidnap or detain another,
or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if
threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents,
female, or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting
ransom from the victim or any other person, even if none of the circumstances above-mentioned were present
in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be imposed. (As amended by RA No. 7659).
For the accused to be convicted of kidnapping, the prosecution is burdened to prove beyond reasonable doubt
all the elements of the crime, namely: (a) the offender is a private individual; (b) he kidnaps or detains another,
or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be illegal; and (d)
in the commission of the offense any of the following circumstances is present: (1) the kidnapping or detention
lasts for more than three days; (2) it is committed by simulating public authority; (3) any serious physical injuries
are inflicted upon the person kidnapped or detained or threats to kill him are made; or (4) the person kidnapped
or detained is a minor, female, or a public officer.36 If the victim of kidnapping and serious illegal detention is a
minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for
the purpose of extorting ransom, the duration of his detention is immaterial.
The essential elements for this crime is the deprivation of liberty of the victim under any of the above-mentioned
circumstances coupled with indubitable proof of intent of the accused to effect the same.37 There must be a
purposeful or knowing action by the accused to forcibly restrain the victim coupled with intent.38
Judge Learned Hand once called conspiracy "the darling of the modern prosecutor’s nursery."39 There is
conspiracy when two or more persons agree to commit a felony and decide to commit it.40 Conspiracy as a mode
of incurring criminal liability must be proven separately from and with the same quantum of proof as the crime
itself. Conspiracy need not be proven by direct evidence. After all, secrecy and concealment are essential
features of a successful conspiracy. Conspiracies are clandestine in nature. It may be inferred from the conduct
of the accused before, during and after the commission of the crime, showing that they had acted with a
common purpose and design.41Paraphrasing the decision of the English Court in Regina v. Murphy,42 conspiracy
may be implied if it is proved that two or more persons aimed by their acts towards the accomplishment of the
same unlawful object, each doing a part so that their combined acts, though apparently independent of each
other, were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence
of sentiment.43 To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have
performed an overt act in pursuance or furtherance of the complicity.44 There must be intentional participation
in the transaction with a view to the furtherance of the common design and purpose.45
The United States Supreme Court in Braverman v. United States,46 held that the precise nature and extent of the
conspiracy must be determined by reference to the agreement which embraces and defines its objects. For one
thing, the temporal dimension of the conspiracy is of particular importance. Settled as a rule of law is that the
conspiracy continues until the object is attained, unless in the meantime the conspirator abandons the
conspiracy or is arrested. There is authority to the effect that the conspiracy ends at the moment of any
conspirator’s arrest, on the presumption, albeit rebuttable, that at the moment the conspiracy has been
thwarted, no other overt act contributing to the conspiracy can possibly take place, at least as far as the arrested
conspirator is concerned.47 The longer a conspiracy is deemed to continue, the greater the chances that
additional persons will be found to have joined it. There is also the possibility that as the conspiracy continues,
there may occur new overt acts. If the conspiracy has not yet ended, then the hearsay acts and declarations of
one conspirator will be admissible against the other conspirators and one conspirator may be held liable for
substantive crimes committed by the others.48
Each conspirator is responsible for everything done by his confederates which follows incidentally in the
execution of a common design as one of its probable and natural consequences even though it was not intended
as part of the original design.49 Responsibility of a conspirator is not confined to the accomplishment of a
particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the
purpose intended.50Conspirators are held to have intended the consequences of their acts and by purposely
engaging in conspiracy which necessarily and directly produces a prohibited result that they are in contemplation
of law, charged with intending the result.51 Conspirators are necessarily liable for the acts of another conspirator
even though such act differs radically and substantively from that which they intended to commit.52 The Court
agrees with the ruling of the Circuit Court of Appeals (Second District) per Judge Learned Hand in United States v.
Peoni53 "that nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as
he understood it; if later comers change that, he is not liable for the change; his liability is limited to the common
purpose while he remains in it." Earlier, the Appellate Court of Kentucky in Gabbard v. Commonwealth54 held
that:
The act must be the ordinary and probable effect of the wrongful acts specifically agreed on, so that the
connection between them may be reasonably apparent, and not a fresh and independent project of the mind of
one of the confederates, outside of or foreign to the common design, and growing out of the individual malice of
the perpetrator.
Equally persuasive is the pronouncement of the Circuit Court of Appeals (Second District) in United States v.
Crimms,55 that it is never permissible to enlarge the scope of the conspiracy itself by proving that some of the
conspirators, unknown to the rest, have done what was beyond the reasonable intendment of the common
understanding. This is equally true when the crime which the conspirators agreed upon is one of which they
severally might be guilty though they were ignorant of the existence of some of its constitutive facts. Also, while
conspirators are responsible for consequent acts growing out of the common design they are not for
independent acts growing out of the particular acts of individuals.56
In this case, the evidence on record inscrutably shows that the appellant and his three cohorts were armed with
handguns; two of them had hand grenades, and all of them had masks over their faces. They gained entry into
the Lim residence after overpowering the security guard Ferdinand and the housemaid Julita, and tying their
hands behind their backs. One of the masked men remained in the sala, while the three others barged into the
bedroom of George and Desiree, and kidnapped George and his ten-year-old son Christopher. The appellant and
his cohorts forced father and son to board George’s car. The appellant drove the car, dropped off Christopher
and his cohorts at Sitio Tupi, and drove on with George in the car towards the direction of Maasim.
The collective, concerted and synchronized acts of the appellant and his cohorts before, during and after the
kidnapping constitute indubitable proof that the appellant and his three companions conspired with each other
to attain a common objective: to kidnap George and Christopher and detain them illegally. The appellant was a
principal by direct participation in the kidnapping of the two victims.
The trial court found the testimony of George straightforward and positive, and entitled to credit and full
probative weight.57 The legal aphorism is that the findings of facts of the trial court, its calibration of the
testimonies of witnesses and of their probative weight, its conclusions anchored on its findings are accorded high
respect by the appellate court, if not conclusive effect, because of the unique advantage of the trial court of
observing at close range the demeanor, conduct and deportment of witnesses as they regale the trial court with
their testimonies.58 It is true that the appellate court is not bound by the findings and conclusions of the trial
court if the latter ignored, misunderstood, misapplied or misinterpreted cogent facts and circumstances, which,
if considered, would change the outcome of the case.59 This ruling, however, is inapplicable in the case at bar,
since the appellant failed to establish that the trial court erred in this wise.
George testified that when the policemen found the gun and grenade60 inside his car, the appellant was already
at the police station.61 However, in his September 13, 1994 Affidavit,62 George stated that the policemen found
the gun when the appellant was frisked, while the grenade was spotted under the passenger’s seat, beside the
driver. This seeming inconsistency between the two statements does not discredit his testimony nor his
credibility for the following reasons: (a) it is of judicial knowledge that affidavits being taken ex parte are almost
always incomplete and often inaccurate and are generally inferior to the testimony of a witness in open
court;63 (b) the credibility of George’s testimony cannot be impeached by the inconsistent statements contained
in his sworn statement because the said statement was not admitted in evidence; and Section 34, Rule 132 of
the Revised Rules of Evidence provides that the Court shall not consider evidence which has not been formally
offered; besides, George was not confronted with his sworn statement and accorded an opportunity to explain
the inconsistency;64 (c) the inconsistency refers to trivial, minor and collateral matters and not to the substance
of his testimony. Such minor inconsistency even enhances its veracity as the variances erase any suspicion of a
rehearsed testimony.65 A truth-telling witness is not always expected to give an error-free testimony, considering
the lapse of time and the treachery of human memory.66
Neither is the case for the prosecution impaired by the failure of the prosecution to present Christopher as its
witness. It bears stressing that George’s testimony is corroborated by Julita and the three arresting officers.
Besides, case law has it that the testimony of a single witness, if positive and credible, is sufficient to sustain a
judgment of conviction.67 The law does not require the testimonies of at least two witnesses for the conviction of
an accused for kidnapping and serious illegal detention. The prosecution has the discretion to decide on who to
call as witness during the trial, and its failure to present a particular witness does not give rise to the
presumption that evidence willfully suppressed would be adverse if withheld, where the evidence is at the
disposal of the appellant and is merely cumulative or corroborative.68 In this case, the testimony of George is, by
itself, independently of Christopher’s testimony, sufficient proof of the guilt of the appellant. George had
personal knowledge of the facts and circumstances of the kidnapping, as he himself had been kidnapped along
with his young son. His failure to testify on where Christopher was detained after the three cohorts of the
appellant had alighted from the car with Christopher, and the circumstances surrounding the rescue do not
weaken the case of the prosecution, as the said facts and circumstances had occurred after the crime of
kidnapping had already been a fait accompli.
The prosecution failed to prove
that in kidnapping George and
Christopher, the appellant and
his cohorts intended to extort
ransom.
The trial court convicted the appellant of kidnapping George and Christopher for ransom and sentenced him to
double death on its finding that the appellant and his co-accused conspired to extort ransom for the release of
the victims. For his part, the appellant contends that the prosecution failed to prove the element of extorting
ransom. The appellant argues that he cannot be held liable for kidnapping for ransom, even if after his arrest on
September 4, 1994 his co-conspirators actually demanded ransom for Christopher’s release. The prosecution
failed to prove that he had knowledge of and concurred with the said demand.
The Court agrees with the appellant. The second paragraph of Article 267 of the Revised Penal Code reads:
The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting
ransom from the victim or any other person, even if none of the circumstances above-mentioned were present
in the commission of the offense.
The provision is pursuant to Rep. Act No. 1084 approved on June 15, 1984 derived from the so-called "Lindbergh
Law" in the United States, approved on June 22, 1932, as amended on May 13, 1934.
To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal detention for
ransom, the prosecution must prove beyond reasonable doubt the following: (a) intent on the part of the
accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; (c) motive of the
accused, which is extortion of ransom from the victim or any other person. In kidnapping or serious illegal
detention for ransom, the purpose of extorting ransom is a qualifying circumstance which must be alleged in the
Information and proved by the prosecution as the crime itself by words and overt acts of the accused before,
during and after the kidnapping and detention of the victim. Neither actual demand for nor actual payment of
ransom is necessary for the crime to be committed.69 Although kidnapping for a certain purpose is a qualifying
circumstance, the law does not require that the purpose be accomplished.70 Ransom employed in the law is so
used in its common or ordinary sense: a sum of money or other thing of value, price, or consideration paid or
demanded for redemption of a kidnapped or detained person, a payment that releases from captivity. 71 It may
include benefits not necessarily pecuniary which may accrue to the kidnapper or a third person as a condition for
the release of the victim.72
In this case, the prosecution was able to prove beyond reasonable doubt that the appellant conspired with three
others to kidnap the victims. However, it failed to prove that they intended to extort ransom from the victims
themselves or from some other person, with a view to obtaining the latter’s release. The kidnapping by itself
does not give rise to the presumption that the appellant and his co-conspirators’ purpose is to extort ransom
from the victims or any other person.
The only evidence adduced by the prosecution to prove the element of extorting ransom are the three
handwritten letters: the first was received by Desiree on September 4, 1994, while the second and third letters
were received by George on September 6 and 9, 1994, respectively.
The handwritten letter received by Desiree on September 4, 1994, "first letter" for brevity, reads:
Para Sa Inyo Mr. & Mrs. Lim,
Una wag na wag kayong gumawa ng hakbang na hindi namin alam o gusto, lalong-lalo na sa pakikipag-usap sa
militar o magkoordinate sa militar ay hindi namin gustong mangyari ang ganon mga sistem. Ang pangalawa, wag
na wag kayong tumanggap ng negotiator na walang palatandaan na galing sa amin, pakiusap lang yon na dapat
ninyong sundin, madidisgrasya ang aming dala kung kayo’y magkakamali ng hakbang.
Maliwanag sana sa inyo ang aming mga salaysay.
Note…
Palatandaan na galing sa aming hakbang ay ito –
MR. MUBARAK II or 2
Sulat man o telephone73
The letter received by George on September 6, 1994, "second letter" for brevity, reads:
Ronie Puntuan
Michael Pagalasan
Mr. G. Lim palayain ninyo ang suspek ninyo. Wala silang kasalanan bago natin tapusin ang usapan tatlong
milyong piso (3,000,000) katumbas ng kalayaan ng mahal ninyong anak. Paalisin ang mga sundalo. Kailangan ang
Black Out News. Huwag kang magkakamali Mr. Lim. Kunting sipyot mo patay ang anak mo. Isang araw lamang
ang tagal namin sa inyo.
(Sgd.)74
The handwritten letter received by George on September 9, 1994, "third letter" for brevity, reads:
Para sayo Mr. & Mrs. Lim,
Mr. Lim, gusto ko lang ipaabot sayo ang maikli kong kataga. Unang-una, ayaw namin na mga asong militar na
makialam. Pangalawa, ayaw namin sa grupo na idamay ang tao na walang-alam. Alalahanin mo mabuti lahat ng
mga kataga na iniwan ko sayo, Mr. Lim. Ang taong dinampot ng militar sa purok islam na si Ronie, ang taong yan
walang conection (sic) sa grupo, sa madaling usapan, Mr. Lim, alalahanin mo ang anak mo sa oras na tatlong
araw na taong yan hindi makalabas. Ang isipin mo ang anak mo hindi rin makalabas hanggat sa mabulok sa lupa
(maliwanag).
(Sign)
Palatandaan
MUBARAK II - 275
As gleaned from the three letters, there was no demand for ransom in exchange for George and Christopher’s
liberty. While there is a demand for ransom of ₱3,000,000 in the second letter, and a demand for the release of
Ronie Puntuan within three days in the third letter, the said demands are in consideration of Christopher’s
release from custody, and not that of George.
Even then, the prosecution failed to adduce evidence that the second letter demanding ransom in the amount of
₱3,000,000 for the release of Christopher actually came from the appellant and his co-conspirators. It bears
stressing that in the first letter, the kidnappers made it clear to the couple that only those communications,
whether by letter or by telephone, bearing the name "MR. MUBARAK II or 2" came from them:
Note…
Palatandaan na galing sa aming hakbang ay ito –
MR. MUBARAK II or 2
Sulat man o telephone76
The second letter received by George was signed by an unidentified person. It was not stated that the letter
came from "MUBARAK II-2." That the second letter could not have come from the appellant and his cohorts is
buttressed by the fact that the third letter, which came from "MUBARAK II-2," does not even mention any
demand for ransom in the amount of ₱3,000,000 for Christopher’s release.
The Court can only surmise, but it is possible that the signatory and sender of the second letter could have been
acting independently of the appellant and his co-conspirators in order to profit from the kidnapping. It bears
stressing that the kidnapping of Christopher and George was already known when the appellant was arrested on
September 4, 1994, and the crime had already been reported to the police authorities. Persons other than the
co-conspirators of the appellant could have written the letter.
Since there is no evidence that the signatory and sender of the second letter is a co-conspirator of the appellant,
the latter is not bound by the said letter, conformably to Section 28, Rule 130 of the Revised Rules of Evidence
which reads:
Sec. 28. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration, or omission
of another, except as hereinafter provided.
Even if it is assumed for the nonce that the second letter came from a co-conspirator, the same is not binding on
the appellant, absent evidence aliunde that he knew of and concurred with the said ransom demand. It bears
stressing that when George received the second letter on September 6, 1994, the appellant had already been
arrested and detained. The conspiracy forged by the appellant and his cohorts on or before September 4, 1994
had already ceased, when on the said date, the appellant was arrested by the policemen and detained.77
Neither is the third letter admissible in evidence against the appellant to prove that he conspired with others to
demand the release of Ronie Puntuan in consideration for Christopher’s freedom. The appellant and his cohorts
could not have planned to demand ransom for the release of Ronie Puntuan as early as September 4, 1994, the
date of the kidnapping: Ronie had not yet been arrested on this date. The appellant was arrested first, and
Ronie’s detention was only to follow. Furthermore, the third letter was sent to George on September 9, 1994. At
that point, the appellant had already been arrested by the policemen, and was already in jail. There is no
evidence that while in jail, the appellant had knowledge of and concurred with the said ransom demand. It may
be reasonably inferred that the appellant’s co-conspirators could have decided to demand Ronie Puntuan’s
release as a consideration for Christopher’s liberty, while the appellant was already languishing in jail. The said
demand for ransom was a new and independent project of the appellant’s co-conspirators, growing out of their
own malice, without any a priori knowledge on the part of the appellant or his post facto concurrence therewith.
Indeed, the records show that on September 9, 1994, the very day the co-conspirators sent the third letter to
George, Ronie Puntuan through counsel Atty. Jose Jerry L. Fulgar, also the counsel for the appellant, filed a
motion with the MTC, praying that he be detained at the General Santos City Jail:
WHEREFORE, premises considered, it is most respectfully prayed that an order be please issued directing that
accused Ronie Puntuan be please detained at General Santos City Jail with the instruction that the said accused
be separated from his co-accused as desired by the Police Officers.78
That the appellant plotted with his co-conspirators to demand the release of Ronie Puntuan as a condition for
Christopher’s liberty is too far-fetched, considering that Ronie and the appellant had the same lawyer. Ronie
Puntuan himself, through his and the appellant’s counsel, prayed to the court that he be transferred from Camp
Fermin Lira Barracks to the General Santos City Jail.
The appellant is also guilty
of slight illegal detention of
George under Article 268
of the Revised Penal Code.
Aside from convicting the appellant of kidnapping Christopher, the trial court also convicted him of kidnapping
George under Article 267 of the Revised Penal Code. But the Office of the Solicitor General contends that the
appellant is guilty of another felony: slight illegal detention under Article 268 of the Revised Penal Code, because
none of the circumstances enumerated in Article 267 of the Revised Penal Code is present in the kidnapping and
detention of George. The prosecution may have failed to prove that the appellant and his co-conspirators
intended to extort ransom for George’s release; however, as a matter of substantive law, the appellant may be
held guilty of two separate crimes, although he and his co-conspirators kidnapped George and Christopher on
the same occasion and from the same situs. As a matter of procedural law, the appellant may be convicted of
slight illegal detention under the Information for kidnapping for ransom as the former is necessarily included in
the latter crime.
The Court agrees with the Office of the Solicitor General. The appellant is guilty of slight illegal detention under
Article 268 of the Revised Penal Code which reads:
Art. 268. Slight illegal detention. – The penalty of reclusion temporal shall be imposed upon any private
individual who shall commit the crimes described in the next preceding article without the attendance of any of
the circumstances enumerated therein.
The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime.
If the offender shall voluntarily release the person so kidnapped or detained within three days from the
commencement of the detention, without having attained the purpose intended, and before the institution of
criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a
fine not exceeding seven hundred pesos. (As amended by Republic Act No. 18).
While the epigraph or title of the article mentions only slight illegal detention, kidnapping committed in
connection with the lower offense of slight illegal detention is also covered by the article.79
The felony has the following essential elements:
1. That the offender is a private individual.
2. That he kidnaps or detains another, or in any other manner deprives him of his liberty.
3. That the act of kidnapping or detention is illegal.
4. That the crime is committed without the attendance of any of the circumstances enumerated in Art.
267.80
The crime of slight illegal detention is consummated upon the occurrence of all the elements thereof. "A day," in
the last paragraph of Article 268 of the Revised Penal Code, should be understood as twenty-four hours, to be
counted from the deprivation of the liberty of the victim until the cessation thereof. As Cuello Calon put it: "El
plazo de los tres dias de veinte cuatro horas y desde el momento de la privacion de libertad si en que esta
cesare."81 The rescue or escape of the victim within three days from his kidnapping and detention is not an
exempting circumstance. The voluntary release by the offender of the victim within three days from his
detention, without the offender having attained his purpose and before the institution of criminal proceedings
against him for slight illegal detention, is not an exempting circumstance; it merely serves to reduce the penalty
to prision mayor in its maximum and medium periods and a fine not exceeding ₱700.
In this case, the appellant is a private individual. George had been kidnapped and detained illegally by the the appellant shall suffer an indeterminate penalty of nine years and four months of prision mayor in its medium
appellant and his cohorts, but only for less than a day. George regained his freedom after the appellant had been period as minimum, to sixteen years and five months of reclusion temporal in its medium period as maximum.
arrested at the intersection of the national highway and Espina Road. There is no evidence that the appellant
and his cohorts kidnapped George for the purpose of extorting ransom for his release. There is likewise no CIVIL LIABILITIES OF THE APPELLANT
evidence that they inflicted any serious physical injuries on George, or simulated public authority, or threatened
to kill him. Furthermore, there is no evidence that the appellant and his cohorts intended to detain the victim for
Although the prosecution adduced testimonial evidence that the appellant and his co-conspirators ransacked the
more than three days.
bedroom of the victims and took cash and valuables, the prosecution nevertheless failed to adduce any
documentary evidence to prove the amount of the said cash and the value of the jewelry. Hence, Spouses
Although the appellant and his co-conspirators kidnapped George and Christopher on the same occasion and George and Desiree Lim are not entitled to actual damages.
from the same situs, the appellant is guilty of two separate crimes: kidnapping under Article 267 of the Revised
Penal Code, and slight illegal detention under Article 268 of the Revised Penal Code. The appellant and his co-
Under Article 2219, paragraph 5 of the New Civil Code, moral damages may be recovered. In this case, the
conspirators were animated by two sets of separate criminal intents and criminal resolutions in kidnapping and
prosecution adduced testimonial evidence that for the crimes committed by the appellant and his co-
illegally detaining the two victims. The criminal intent in kidnapping Christopher was separate from and
conspirators, Spouses George and Desiree suffered mental anguish, fright and serious anxiety caused by the
independent of the criminal intent and resolution in kidnapping and detaining George for less than three days. In
kidnapping of George and their son Christopher. Considering the factual milieu in this case, the Court believes
the mind and conscience of the appellant, he had committed two separate felonies; hence, should be meted two
that the said spouses are entitled to moral damages in the amount of ₱100,000 for the kidnapping of
separate penalties for the said crimes: one for kidnapping under Article 267 of the Revised Penal Code and
Christopher, and the amount of ₱50,000 for the illegal detention of George. The appellant is also liable to the
another for slight illegal detention under Article 268 of the same code.82 The felony of slight illegal detention is
spouses for exemplary damages in the total amount of ₱50,000 for the two crimes conformably with current
necessarily included in the crime of kidnapping for ransom; thus, the appellant may be convicted of the former
jurisprudence.90
crime under an Information for kidnapping for ransom.83

PENALTIES FOR THE CRIMES
COMMITTED BY THE APPELLANT
The crimes committed by the appellant were aggravated by dwelling,84 the victims having been kidnapped in
their house; by the use of motor vehicle,85 the victims having been transported by the appellant from their house
with the use of George’s car; and by a band, the crime having been committed by the appellant and three co-
conspirators.86However, the Court cannot consider these aggravating circumstances in determining the proper
penalties for the said crimes, because the same were not alleged in the Information as mandated by Sections 8
and 9, Rule 110 of the Revised Rules of Criminal Procedure.87 Although the said rules took effect after the
commission of the crimes by the appellant, the same is favorable to the appellant; hence, should be applied
retroactively.88
IN LIGHT OF ALL THE FOREGOING, the Decision dated September 27, 1997 of the Regional Trial Court of General
Santos City, Branch 35, is AFFIRMED WITH MODIFICATIONS. Appellant Michael Pagalasan alias "Mike" is found
guilty of kidnapping under Article 267, paragraph 4 of the Revised Penal Code and there being no modifying
circumstances in the commission of the crime is hereby sentenced to suffer the penalty of reclusion perpetua.
Appellant Michael Pagalasan alias "Mike" is found guilty beyond reasonable doubt of the crime of slight illegal
detention under Article 268 of the Revised Penal Code and there being no modifying circumstances in the
commission of the crime is hereby sentenced to suffer an indeterminate penalty of from nine years and four
months of prision mayor in its medium period as minimum to sixteen years and five months of reclusion
temporal in its medium period as maximum. The said appellant is ordered to pay to Spouses George and Desiree
Lim the total amount of ₱150,000 as moral damages; and ₱50,000 as exemplary damages in the two cases.
Costs de oficio.

The appellant is not entitled to the privileged mitigating circumstance under the second paragraph of Article 268
SO ORDERED.
of the Revised Penal Code89 because he did not voluntarily release George within three days from the
kidnapping. George was recovered by the policemen at the intersection of the national highway and Espina
Road. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.
The prescribed penalty for kidnapping under Article 267 of the Revised Penal Code as amended by Rep. Act No.
7659 is reclusion perpetua to death. There being no aggravating circumstance or modifying circumstance in the
commission of the crime, the proper penalty for the said crime is reclusion perpetua, conformably to Article 63
of the Revised Penal Code. The prescribed penalty for slight illegal detention is reclusion temporal in its full
period, with a range of twelve years and one day to twenty years. To determine the minimum of the
indeterminate penalty, the penalty shall be reduced by one degree, prision mayor, which has a range of six years
and one day to twelve years. The minimum of the indeterminate penalty shall be taken from the full range of the
penalty at the discretion of the Court. The maximum of the indeterminate penalty shall be taken from the
medium period of reclusion temporal, conformably to Article 64, paragraph 1 of the Revised Penal Code. Hence,
 Republic of the Philippines
SUPREME COURT
Baguio City
SECOND DIVISION
G.R. No. 187534 April 4, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
DIMA MONTANIR, RONALD NORVA AND EDUARDO CHUA, Accused-Appellants.
DECISION
PERALTA, J.:
For consideration of this Court is the Decision1 dated April 22, 2008 of the Court Appeals (CA) in CA- G.R. CR-HC
No. 00499, affirming with modification the Decision2 dated October 28, 2004 of the Regional Trial Court (RTC) of
Valenzuela City, Branch 171, finding Appellants Dima Montanir, Ronald Norva and Eduardo Chua, guilty beyond
reasonable doubt of the crime of Kidnapping under Article 267 of the Revised Penal Code, as amended.
The records bear the following factual antecedents:
Josie Herrera, Robert Uy, Alicia "a.k.a. Alice" Buenaflor, together with appellants Ronald Norva and Eduardo
Chua, on December 17, 1997, concocted a plan to kidnap Rafael Mendoza, and after several days of conducting
surveillance on their intended victim, on January 5, 1998, they decided to kidnap Rafael in Ali Mall, Cubao,
Quezon City. However, the intended kidnapping failed, because Rafael did not show up at the said place. On
February 5, 1998, a second attempt was made, but they encountered an accident before they could even
execute their original plan.
Around 5:30 a.m. of February 17, 1998, Alicia called up Rosalina Reyes, a partner of Rafael, to tell her that she
wanted to meet her and Rafael at Jollibee, BBB, Valenzuela City to settle the former's loan of ₱350,000.00. She
requested Rosalina to bring the land title which she was given as collateral for the said loan.
Rosalina and Rafael arrived at Jollibee ahead of Alicia. Eventually, around 9:15 a.m. of the same date, Alicia
showed up outside the store aboard a car. She was with appellant Ronald Norva. Alicia motioned Rosalina and
Rafael to approach the car, which the two did as requested. While inside the vehicle, Alicia introduced appellant
Ronald as her cousin. Later on, Alicia informed Rosalina and Rafael that she would pay them at her place.
When the car passed by the street where Alicia's house was located, Rosalina asked the former where they were
going. Alicia answered that they had to drop by the house of her financier who agreed to redeem her title and
substitute as her creditor. Trusting Alicia, Rosalina and Rafael did not protest. They finally reached a house in
Ciudad Grande, Valenzuela City.
Thereafter, appellant Ronald alighted from the vehicle and talked to a man inside a store, later identified as
Jonard Mangelin. The gate of the house was then opened by appellant Dima. The car proceeded to the garage
and Rosalina and Rafael were asked to go inside the house. Rosalina followed Alicia, while Rafael trailed Rosalina
as they entered through a kitchen door. They passed by a man (Jessie Doe) who was washing his hands in the
sink. While Rosalina was walking behind Alicia, she suddenly heard a dull moan coupled with the sound of
stomping feet. She looked back at the direction where the sounds came from and saw Rafael being forcibly
dragged inside a room. She decided to look for Rafael and on her way, she saw "Jessie Doe" place his hand on
Rafael's mouth and poke a gun at him. Rafael struggled to get free. Rosalina pleaded with "Jessie Doe" to have
pity on Rafael because of his existing heart ailment. Appellant Ronald rushed towards her, poked a gun at her
mouth, tied her to a bed and warned her not to make any noise. He told her that all they want is her money,
upon which, Rosalina said that if they really wanted money, they should untie Rafael, who then appeared to be
on the verge of having a heart attack. Rosalina was untied and she immediately rushed to Rafael and began
pumping his chest. She asked Jonard, who had just entered the room, to help her pump Rafael's chest while she
applied CPR on the latter. Jonard did as told. While CPR was being administered, appellant Dima started
removing all of Rafael's personal belongings, which include his ring, wallet, watch and other items inside his
pocket, and passed them on to appellant Ronald.
Afterwards, appellant Ronald instructed Jonard to take Rosalina to another room. While inside the room where
she was brought, Rosalina begged Jonard to help her escape. Jonard was moved by Rosalina's plea and agreed to
help her. During their conversation, Jonard told Rosalina that two women had tipped them off as the kidnap
victims. When asked who they were, Jonard refused to reveal their identities.
Rosalina was transferred to the master's bedroom around 12:00 noon because certain female visitors arrived.
After the visitors left, Rosalina was returned to the room where she was previously taken. Rosalina asked Jonard
about Rafael's condition, to which he replied that Rafael would be brought to the hospital. A little later, at
around 1 p.m., Jonard went to check on Rafael and confirmed that he was still alive.
Around 2:00 p.m., Rosalina heard the sound of someone being pummelled. Feeling nervous, she asked Jonard
the whereabouts of Rafael and was told that he was brought to the hospital. But unknown to Rosalina, Rafael
had just died and his body was placed inside the trunk of a car.
Around 6:30 p.m., Rosalina was informed that she will be brought to another safe house. She was taken to a car
and placed at the back seat, together with Jonard and three other men, later identified as Larry, Jack and Boy.
The driver of the car was appellant Ronald. Appellant Ronald instructed Jonard to cover Rosalina's head with a
jacket which Jonard did. As they were about to leave, the man seated beside Ronald started to talk. Rosalina
recognized the voice of Robert. She then lifted the jacket covering her head and was able to confirm that the one
talking was Robert. Rosalina cried, "Robert, Robert, why did you do this, we did not do anything to you" and
Robert responded, "Pasensiyahan na lang tayo."
By 10:00 p.m., they arrived at a certain house in Pandi, Bulacan where there was no electricity. Thus, they lit
candles for illumination. Rosalina found the house familiar and concluded that it was Alicia's. Rosalina was
brought to a room on the second floor and while inside the room, she was told by one of the men guarding her
that one of the leaders wanted to talk to her. Per the leader's instruction, the guard put out the candle light. The
man then seated himself beside Rosalina and warned her against escaping as they were a large and armed
group. Rosalina recognized the voice as that of Robert's. Before he left the room, Robert gave instructions to
Jonard and the other men inside. Meanwhile, the group started digging a pit at the back of the same house near
the swimming pool.
Around 3:00 a.m. of the following day (February 18), the group buried Rafael's body in the pit. Thereafter, Robert
instructed appellant Ronald to tell Jonard that the latter should kill Rosalina, which Jonard refused to do.
Nonetheless, Robert instructed Jonard and the others to guard Rosalina well, as he himself would deal with her
upon his return.
Rosalina heard the car leave around 5:00 a.m. of the same day. Sensing that Jonard was sympathetic to her,
Rosalina begged him again to help her escape for the sake of her children.
When electricity was restored around 8 p.m., one of the men guarding Rosalina turned off the light inside the
room. The room was only illuminated by a light coming from the hallway. Rosalina saw a person wearing a wig
and sunglasses enter the room. Rosalina recognized him as Robert. Trying to mimic a woman by modulating his
voice, Robert told her that Rafael was in the hospital and that he could still sign a check. He asked Rosalina the
whereabouts of the other land titles and the identities of the other financiers whom she knew. Rosalina replied
in the negative. Robert angrily poked a gun at her and shouted, "That's impossible," and then left the room. He
gave instructions to his members and left.
At 9:00 p.m., Jonard went to Rosalina and told her about Robert's order to kill her, which caused the latter to
panic and cry. She then implored the help of Jonard for her escape. Afterwards, Jonard went to his companions
Larry, Jack and Boy and told them that he would help Rosalina escape. His companions immediately cocked their
guns and an argument ensued. Rosalina talked to them and begged them all to spare her life. One of Jonard's
companions told Rosalina that if they would allow her to escape, they too would get into trouble. Taking
advantage of the situation, Rosalina suggested that all of them should escape. They all agreed to escape in the
early morning.
Around 5:00 a.m., Rosalina, Jonard, Larry, Jack and Boy left the safe house. They walked through a rice field for
about 30 minutes and then boarded a jeepney bound for Balagtas, Bulacan. From Balagtas, they took a bus going
to Cubao and arrived at 7:30 a.m. Rosalina pawned her pieces of jewelry for ₱1,500.00 and gave the ₱1,000.00 to
Larry, Jack and Boy. The three told Jonard to stay with Rosalina so that she would have a witness and, in case
Rosalina would further need their help, left their address with Jonard.
When the three left, Rosalina immediately called Rafael's brother Tito, and related what happened to her and his
brother. When Tito asked Jonard which hospital Rafael was brought to, Jonard revealed to Rosalina that Rafael
died at the safe house in Ciudad Grande, Valenzuela City. Rosalina called her lawyer, Atty. Teresita Agbi and
asked her to meet them at Farmer's, Cubao. When Atty. Agbi arrived, she accompanied them to the Department
of Interior and Local Government (DILG) where an investigation was conducted.
The following day, at 4:00 a.m., two groups from the DILG were formed to arrest Alicia, Josie, the appellants, and
Robert. Alicia and Josie were not at their homes, while appellants Ronald and Dima were arrested at the
residence of Robert. While at the DILG office, Rosalina positively identified appellants Ronald and Dima as her
kidnappers. Meanwhile, Jonard accompanied the police authorities to the safe house in Pandi, Bulacan and
showed them where the body of Rafael was buried. The remains of Rafael was later on exhumed.
Thereafter, two Informations were filed with the RTC of Valenzuela City (Branch 171), with the following
allegations:
Criminal Case No. 123-V-98
That on or about the 17th day of February 1998 in Valenzuela, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and mutually helping one another, being then
private person, did then and there wilfully, unlawfully and feloniously kidnap one ROSALINA REYES against her
will and detained her, thereby depriving her of her liberty for a period of two days.
CONTRARY TO LAW.
Criminal Case No. 124-V-98
That on or about the 17th day of February 1998 in Valenzuela, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and mutually helping one another, being then a
private person, did then and there wilfully, unlawfully and feloniously kidnap one RAFAEL MENDOZA against his
will and detained him, thereby depriving him of his liberty and on the occasion thereof, the death of the victim
resulted.
CONTRARY TO LAW.
Upon arraignment, with the assistance of counsel, Jonard and appellants Ronald, Dima and Eduardo, pleaded
"not guilty" to the crime charged. Robert Uy, Alice Buenaflor and Jessie Doe remained at-large during the trial of
the case. Jonard was later on discharged as a state witness. Afterwards, the trial on the merits ensued.
On October 28, 2004, the trial court rendered judgment against the appellants for the crime of kidnapping, the
dispositive portion of which, reads:
WHEREFORE, in view of the foregoing, accused DIMA MONTANIR, RONALD NORVA, and EDUARDO CHUA are
hereby found GUILTY beyond reasonable doubt of the crime of kidnapping and in accordance with Article 267 of
the Revised Penal Code, as amended, this Court hereby imposes the penalty of DEATH on accused NORVA and
MONTANIR. As regards accused CHUA, this Court hereby imposes the penalty of reclusion perpetua.
Further, accused Montanir, Norva and Chua are hereby held jointly and severally liable to pay the heirs of
Mendoza the amount of Php 71,000.00 in actual damages and Php 50,000.00 as moral damages.
As for accused JOSIE HERRERA, the Court hereby ACQUITS her on reasonable doubt of the charge of kidnapping.
Consequently, The Jail Warden of Valenzuela City Jail is hereby ordered to cause the immediate release of the
said accused from detention unless she is otherwise being detained for some other legal and lawful cause.
With regard to accused ALICE BUENAFLOR, ROBERT UY and one JESSIE DOE, let the cases against them be
ARCHIVED pending their apprehension. Meantime, let an alias warrant issue for their apprehension.
Considering the penalty imposed on accused MONTANIR, NORVA and CHUA, let the entire records of these cases
be elevated to the Court of Appeals for appropriate review of the judgment herein rendered.
SO ORDERED.
On automatic review, the CA affirmed the conviction with modification on the penalty imposed, thus:
WHEREFORE, in the light of the foregoing, the impugned Decision is AFFIRMED with MODIFICATION that the
penalty of death imposed on accused Montanir and Norva is hereby modified to reclusion perpetua to conform
to and in accordance with Republic Act No. 9346. Appellants Montanir, Norva and Chua are ordered to pay
jointly and severally the amount of ₱50,000.00 as civil indemnity to the heirs of the victims.
Costs against appellants.
SO ORDERED.
Hence, the present appeal.
II.
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT RONALD NORVA GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED DESPITE THE PATENT WEAKNESS OF THE
PROSECUTION'S EVIDENCE.
First of all, it must be emphasized that the crime committed by the appellants, as ruled by the trial court and
affirmed by the CA, is the special complex crime of Kidnapping with Homicide. After the amendment of the
Revised Penal Code on December 31, 1993 by Republic Act No. 7659, Article 267 of the Revised Penal Code, now
provides:

In their respective Briefs, appellants raised the following assignment of errors: Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any
other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:
DIMA MONTANIR:
1. If the kidnapping or detention shall have lasted more than three days.
I.
2. If it shall have been committed simulating public authority.
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCONSISTENT AND INCREDIBLE
TESTIMONIES OF THE PROSECUTION WITNESSES. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if
threats to kill him shall have been made.
II.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents,
female or a public officer;
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT DIMA MONTANIR GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED DESPITE THE PATENT WEAKNESS OF THE
PROSECUTION'S EVIDENCE. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting
ransom from the victim or any other person, even if none of the circumstances above-mentioned were present
in the commission of the offense.
EDUARDO CHUA:

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or
I.
dehumanizing acts, the maximum penalty shall be imposed.

THE DECISION IS NOT IN ACCORD WITH LAW AND THE EVIDENCE.

As expounded in People v. Mercado:3

II.
In People v. Ramos,4 the accused was found guilty of two separate heinous crimes of kidnapping for ransom and
murder committed on July 13, 1994 and sentenced to death. On appeal, this Court modified the ruling and found
THE TRIAL COURT GRAVELY ERRED IN FINDING APPELLANT CHUA A CONSPIRATOR TO THE the accused guilty of the "special complex crime" of kidnapping for ransom with murder under the last
COMMISSION OF KIDNAPPING. paragraph of Article 267, as amended by Republic Act No. 7659. This Court said:

RONALD NORVA: x x x This amendment introduced in our criminal statutes the concept of 'special complex crime' of kidnapping
with murder or homicide. It effectively eliminated the distinction drawn by the courts between those cases
I. where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of
the victim was not deliberately resorted to but was merely an afterthought. Consequently, the rule now
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCONSISTENT AND INCREDIBLE is: Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was
TESTIMONIES OF THE PROSECUTION WITNESSES. purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be
complexed under Art. 48, nor be treated as separate crimes, but shall be punished as a special complex crime
under the last paragraph of Art. 267, as amended by RA No. 7659.
This Court further discussed the nature of the special complex crime of Kidnapping with Homicide in People v.
Larrañaga,5 thus:
A discussion on the nature of special complex crime is imperative. Where the law provides a single penalty for
two or more component offenses, the resulting crime is called a special complex crime. Some of the special
complex crimes under the Revised Penal Code are (1) robbery with homicide,6 (2) robbery with rape,7 (3)
kidnapping with serious physical injuries,8 (4) kidnapping with murder or homicide,9 and (5) rape with
homicide.10 In a special complex crime, the prosecution must necessarily prove each of the component offenses
with the same precision that would be necessary if they were made the subject of separate complaints. As
earlier mentioned, R.A. No. 7659 amended Article 267 of the Revised Penal Code by adding thereto this
provision: "When the victim is killed or dies as a consequence of the detention, or is raped, or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed; and that this provision gives rise to a
special complex crime. In the cases at bar, particularly Criminal Case No. CBU-45303, the Information specifically
alleges that the victim Marijoy was raped "on the occasion and in connection" with her detention and was killed
"subsequent thereto and on the occasion thereof." Considering that the prosecution was able to prove each of
the component offenses, appellants should be convicted of the special complex crime of kidnapping and serious
illegal detention with homicide and rape. It appearing from the overwhelming evidence of the prosecution that
there is a "direct relation, and intimate connection"11 between the kidnapping, killing and raping of Marijoy, rape
cannot be considered merely as an aggravating circumstance but as a component offense forming part of the
herein special complex crime. It bears reiterating that in People vs. Ramos,12 and People vs.
Mercado,13 interpreting Article 267, we ruled that "where the person killed in the course of the detention,
regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and
murder or homicide can no longer be complexed under Article 48, nor be treated as separate crimes, but shall be
punished as a special complex crime under the last paragraph of Article 267." The same principle applies here.
The kidnapping and serious illegal detention can no longer be complexed under Article 48, nor be treated as
separate crime but shall be punished as a special complex crime. At any rate, the technical designation of the
crime is of no consequence in the imposition of the penalty considering that kidnapping and serious illegal
detention if complexed with either homicide or rape, still, the maximum penalty of death shall be imposed.
In this particular case, the Information specifically alleges that the appellants wilfully, unlawfully and
feloniously kidnapped Rafael Mendoza against his will and detained him, thereby depriving him of his liberty
and on the occasion thereof, the death of the victim resulted. The trial court, in its decision, particularly in the
dispositive portion, merely stated that the appellants were found guilty beyond reasonable doubt of the crime of
kidnapping, however, its mention of the phrase, in accordance with Article 267 of the Revised Penal Code, as
amended, this Court hereby imposes the penalty of DEATH on accused Norva and Montanir, clearly refers to the
crime committed as that of the special complex crime of Kidnapping with Homicide. The appellants, therefore,
were correctly punished under the last paragraph of Article 267 as the evidence presented during the trial, in its
entirety, undoubtedly proves that the death of Rafael Mendoza, although of natural causes, occurred on the
occasion of the kidnapping.
Delving on the arguments presented by the appellants in this Court, their corresponding briefs pose a single
common argument – the prosecution did not present sufficient evidence to prove beyond reasonable doubt that
they committed the crime charged against them. In particular, they questioned the inconsistent testimonies of
the witnesses for the prosecution. According to them, the said inconsistent statements from the witnesses,
tarnish their credibility.
This Court finds otherwise.
The question of credibility of witnesses is primarily for the trial court to determine. 14 For this reason, its
observations and conclusions are accorded great respect on appeal.15 This rule is variously stated thus: The trial
court's assessment of the credibility of a witness is entitled to great weight. It is conclusive and binding unless
shown to be tainted with arbitrariness or unless, through oversight, some fact or circumstance of weight and
influence has not been considered.16 Absent any showing that the trial judge overlooked, misunderstood, or
misapplied some facts or circumstances of weight which would affect the result of the case, or that the judge
acted arbitrarily, his assessment of the credibility of witnesses deserves high respect by appellate courts.17
Appellants claim that Jonard, a witness for the prosecution, stated in his Sinumpaang Salaysay that he was the
one who whispered to appellant Ronald to transfer Rosalina to another room so that the latter would have no
idea that Rafael was in a critical condition, but during trial, Jonard testified that it was Ronald who instructed him
to transfer Rosalina to a different room. Appellants also point out that in the same sworn statement, Jonard
averred that he resided in Taguig since October, 1987, which is contrary to what he testified in court that he
resided in that same place since 1997. In addition, appellants further argue that in her testimony, Rosalina
declared that she was with four men seated at the back of the car when she was brought to Pandi, Bulacan,
however, Jonard, in his own testimony, stated that there were four of them including Rosalina seated at the back
of the car.
A close reading of the above inconsistencies asserted by the appellants show that the same refer only to minor
details and collateral matters and do not affect the veracity and weight of the testimonies of the witnesses for
the prosecution. What really prevails is the consistency of the testimonies of the witnesses in relating the
principal occurrence and positive identification of the appellants. Slight contradictions in fact even serve to
strengthen the credibility of the witnesses and prove that their testimonies are not rehearsed.18 They are thus
safeguards against memorized perjury.19
Anent the inconsistencies of the contents of the affidavits and that of the testimonies in court, this Court has
already ruled that testimonies in court are given more weight than affidavits, thus:
x x x x Affidavits are not entirely reliable evidence in court due to their incompleteness and the inaccuracies that
may have attended their formulation.20 In general, such affidavits are not prepared by the affiants themselves
but by another person (i.e., investigator) who may have used his own language in writing the statement or
misunderstood the affiant or omitted material facts in the hurry and impatience that usually attend the
preparation of such affidavits. As this Court has often said:
An affidavit, "being taken ex-parte, is almost always incomplete and often inaccurate, sometimes from partial
suggestion, and sometimes from want of suggestion and inquiries, without the aid of which the witness may
be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion
of his memory and for his accurate recollection of all that belongs to the subject."21
We have too much experience of the great infirmity of affidavit evidence. When the witness is illiterate and
ignorant, the language presented to the court is not his; it is; and must be, the language of the person who
prepares the affidavit; and it may be, and too often is, the expression of that person's erroneous inference as to
the meaning of the language used by the witness himself; and however carefully the affidavit may be read over
to the witness, he may not understand what is said in a language so different from that which he is accustomed
to use. Having expressed his meaning in his own language, and finding it translated by a person on whom he
relies, into language not his own, and which he does not perfectly understand, he is too apt to acquiesce; and
testimony not intended by him is brought before the court as his.' (2 Moore on Facts, sec. 952, p. 1105; People v.
Timbang, 74 Phil. 295, 299).22
For this reason, affidavits have generally been considered inferior to testimony given in open court.23
Incidentally, the CA was correct in stating that Jonard was able to explain and reconcile the minor discrepancies
in his testimony by saying that he whispered to appellant Ronald that Rafael was in a bad condition and
afterwards, it was appellant Ronald who instructed him to transfer Rosalina to another room, thus:
Atty. Basco:
Referring to the same statement, Mr. Witness, on page 20 of the TSN dated February 24, 1999 referring to the
same statement, Mr. Witness, in your statement here when asked:
Q. Then what happened, Mr. Witness, when you answered in the manner? And your answer was:
A Ronald Norva told me, "Pare, the old man is in bad condition, you better transfer Mrs. Reyes to another room
so that she could not see the condition of the old man."
Q So which is which Mr. Witness? It was you who gave order or instruction to Mr. Ronald Norva or it was he who
gave instruction?
Atty. Gabi: Can we have the translation of that statement?
Atty. Basco: That is a very inconsistent statement of the witness?
A: This is like this, ma'am.
Atty. Basco: Just answer my question. Which is which, Mr. Witness? Which is the truth, your salaysay or your
testimony on February 24 in open court?
A: The two are true, ma'am, because when I whispered to him that the old man was in a bad condition he gave
me instruction to transfer Mrs. Reyes to another room.24
The same is true with his inconsistent statements regarding his time of residence in Taguig, thus:
Q Mr. Witness, you said in your Sinumpaang Salaysay of February 19, 1998 that you were residing in Taguig at
Maharlika Village sometime in October 1987? Do you confirm that?
Atty. Mendoza:
May we ask for the translations, Your Honor.
A No, sir, the actual year is 1997, not 1987.
Q So you are correcting your answer in your salaysay of February 19, 1998 under paragraph No. 13 wherein you
answered: "Ako po ay nakikitira sa kaibigan kong si Ting sa Muslim Area, Maharlika Village, Taguig, Metro Manila
nuong buwan ng Oktubre, 1987." You are changing the 1987 to 1997?
A The truth is 1997, sir.25
Apellant Dima, in his Brief, insists that the prosecution was not able to establish his participation in the
commission of the crime because he was merely the house helper of the safe house in Ciudad Grande,
Valenzuela, when the kidnappers and the victims arrived. In the same vein, appellant Ronald asserts that there
was no convincing evidence presented by the prosecution that will point to his clear participation in the crime
because he was just the driver of the car that brought the victims to the place where the latter were kept.
Appellant Eduardo also insists that he was not a participant in the offense charged in the Information. Basically,
the appellants deny any participation in the kidnapping.
In convicting the appellants, the trial court, based on the evidence presented, naturally found the existence of
conspiracy among the perpetrators. Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.26 Verily, when conspiracy is established, the
responsibility of the conspirators is collective, not individual, that render all of them equally liable regardless of
the extent of their respective participations, the act of one being deemed to be the act of the other or the
others, in the commission of the felony.27 Each conspirator is responsible for everything done by his
confederates which follows incidentally in the execution of a common design as one of its probable and natural
consequences even though it was not intended as part of the original design. Responsibility of a conspirator is
not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and
offenses incident to and growing out of the purpose intended. 28 Conspirators are held to have intended the
consequences of their acts and by purposely engaging in conspiracy which necessarily and directly produces a
prohibited result, they are, in contemplation of law, chargeable with intending that result. 29 Conspirators are
necessarily liable for the acts of another conspirator unless such act differs radically and substantively from that
which they intended to commit.30 As Judge Learned Hand put it in United States v. Andolscheck,31 "when a
conspirator embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and
membership, so be it that they fall within the common purposes as he understands them."
A scrutiny of the records show that the trial court did not err in finding conspiracy among the appellants, as they
each played a role in the commission of the crime. The trial court correctly found the denial of appellant Dima
that he had knowledge of the kidnapping, unbelievable. The appellant’s bare denial is a weak defense that
becomes even weaker in the face of the prosecution witnesses’ positive identification of him. Jurisprudence
gives greater weight to the positive narration of prosecution witnesses than to the negative testimonies of the
defense.32 The trial court ruled:
As for accused Montanir, again, this Court finds the testimonies of prosecution witnesses more credible than his
testimony applying the same principle that evidence to be believed must not only proceed from a mouth of a
credible witness but must be credible in itself, such that the common experience and observation of mankind
can show it as probable under the circumstances.
Certainly, this Court is not convinced by accused Montanir's claim that he was at Ciudad Grande because he was Q And what happened?
a house boy of accused Chua after he admitted the circumstances under which he has to live there a few days
before the victims were brought there. A I pleaded to him to help me in pumping.

To begin with, this Court does not buy accused Montanir's explanation that he transferred to Chua because he Q What did he do?
was looking for a permanent job is hardly credible because he himself admitted that when he was brought by
accused Uy to the residence of accused Chua at Ciudad Grande, it was the understanding that it would be
A And he helped me.
accused Uy who would be paying his salary. Why would accused Uy pay the salary of accused Montanir if he was
to work as a house boy of accused Chua? Evidently, the only plausible reason why accused Uy would pay the
salary of accused Montanir is because he was actually working for the former and only posted in the house of Q After helping you pumping Mr. Mendoza (sic), what happened to Mr. Mendoza?
accused Chua at Ciudad Grande to play his part in the execution of the planned kidnapping. This conclusion is
bolstered by accused Montanir's admission that he never even spoke with accused Chua during all those times A While we were pumping Mr. Mendoza's chest, Dima Montanir was busy removing the things of Mr.
that he stayed at accused Chua's residence as in fact, he took orders from accused Uy. Mendoza.

Moreover, this Court finds it rather perplexing that accused Montanir would suddenly go back to the house of Q When you said things to which are you referring to?
accused Uy on 19 February 1998 on the shallow reason that he had no companion at Ciudad Grande when
precisely he said he was hired as a caretaker thereat while the regular boy was on vacation.33 A His wallet, watch, ring and all the things in his pocket and gave it to Ronald Norva.35

The above conclusion was bolstered by the positive identification of the same appellant and his exact xxxx
participation in the execution of the crime, by the witnesses for the prosecution, thus:

A When we returned to the DILG, the persons arrested were already there and when I saw them I recognized
WITNESS JONARD them that they were the ones.

Q Could you tell this Honorable Court what happened, Mr. Witness? Q Could you tell us the people whom you said were there?

A When the four (4) entered after ten (10) minutes I heard like a commotion inside the house. A Dima Montanir.

Q Then when you heard the commotion, Mr. Witness, what did you do? Q Can you point to him?

A What I did was I went out of the store to peep thru the window near the lavatory. (Witness pointing to a man inside the Courtroom, whom when asked his name, answered: Dima Montanir).

Q And what did you see, Mr. Witness? Q And who else, Ms. Witness?

A I saw Jess and Dems poking a gun to (sic) Mr. Mendoza. A Ronald Norva.

Q Then what happened, Mr. Witness, when they poked a gun? Q Can you point to him also?

A When they poked a gun and placed the hands of Mr. Mendoza at his back they forcibly entered the room.34 (Witness pointing to a man inside the Courtroom whom when asked his name, answered: Ronald Norva).

WITNESS ROSALINA Q Then what happened, Ms. Witness, after you were able to recognize them?

Q And then what happened, Ms. Witness? A I told that they were the ones.36

A And suddenly Jonard Mangelin entered.

In like manner, appellant Eduardo's denial that he participated in the offense charged does not outweigh the Q Mr. Witness, if this Josie Herrera whom you have referred as one of your Bosses is around this courtroom,
testimonies of the witnesses positively identifying him as one of the culprits, thus: could you please point to her?

WITNESS JONARD (Witness pointing to a lady inside the Courtroom whom when asked her name, answered: Josie Herrera).

Q Did you follow the instruction, Mr. Witness? Q You also mentioned the name of Eduardo Chua as one of your bosses, why do you say so that he was one of
your bosses?
A Yes, ma'am.
A Because they were the ones planning how they could get Mr. Mendoza.
Q Why did you follow the instruction?
Q And who were these people planning, Mr. Witness?
A Because they are my Boss.
A The five (5) of them, ma'am.
Q When you said they are my Boss, to whom, Mr. Witness, are you referring to?
Q Who are these five (5), Mr. Witness?
A Ronald Norva, Robert Uy, Eduardo Chua, Alice Buenaflor and Josie Herrera.
A Robert Uy, Ronald, Alice, Josie Herrera and Eduardo Chua.
Q You mentioned the name of Josie Herrera, was she there at the vicinity?
Q And where did this happen, Mr. Witness?
A She was not there when the incident happened on February 17, 1998.
A When Josie Herrera tipped to the group on that December, the group made a surveillance to be familiarized
Q Why did you include the name of Josie Herrera as one of your bosses, Mr. Witness? with the face of Mr. Mendoza and Mrs. Reyes.

A Because, ma'am. On December 19, 1997 at the middle of that month, Josie Herrera tipped to the group that Q And all the time, Mr. Witness, where was (sic) this happened when you said they were planning?
Mr. Rafael Mendoza is a good victim because he has lots of money and engaged in a lending business.
A At the house of Robert Uy.
Q Were you there when she tipped the person of Mr. Mendoza?
Q Did the surveillance took (sic) place, Mr. Witness?
A Yes, ma'am.
A Yes, ma'am.37
Q Where was this, Mr. Witness?
xxxx
A At the house of Robert Uy.
Q And where did you count the surveillance, Mr. Witness?
Q Where was the house of Mr. Robert Uy, Mr. Witness?
A Ali Mall, at Cubao, Quezon City.
A Candido Homes Subdivision, West Fairview, Quezon City.
Q And what was the result of your surveillance, Mr. Witness?
Q That was on (sic) the middle of December, 1997?
A They saw the victims Mr. Mendoza and Mrs. Reyes. Robert Uy pointed to the two (2) as our victims.
A Yes, ma'am.
Q Aside from the planning and the surveillance, Mr. Witness, what else took place?
A On January 3, 1998 the first stage of the kidnapping will took (sic) place on January 5, 1998 because they want A Eduardo Chua, Robert Uy, Ronald, Alice Buenaflor and Josie Herrera.
to make it quick.
Q Is she the same Josie Herrera whom you identified earlier, Mr. Witness?
Q Was (sic) the kidnapping take place at that time, Mr. Witness?
A Yes, ma'am.
A Yes, ma'am.
Q Then what happened, Witness?
Q On January 5, 1998?
A After the second try, we were not able to take them, so the plan was changed.
A No, ma'am, January 5, that was the first try to kidnap them when we went to Ali Mall but we were not able to
see them. Q What was the plan that was changed? What was the new plan?

Q You said that there was a first try, was there another try, Mr. Witness? A They were the ones who knew it. They were the ones planning and I was only being utilized by the syndicate.38

A Yes, ma'am. It must always be remembered that between positive and categorical testimony which has a ring of truth to it on
the one hand, and a bare denial on the other, the former generally prevails.39
Q When was that, Mr. Witness?
It is also not disputed that the safe house in Ciudad Grande, Valenzuela, where the victims were brought was
A On February 5, 1998. owned by appellant Eduardo. The trial court was also correct in dismissing the claim of appellant Eduardo that he
merely lent his car to Robert and allowed the latter to occupy his house because Robert had been so
Q What happened? Was that agreed upon by the group, Mr. Witness? accommodating to him and had facilitated his loan, thus:

A Yes, ma'am. Regarding the criminal liability of accused Chua, while it is conceded that the said accused was nowhere in the
actual scene of the incident, this Court nonetheless finds the said accused guilty of kidnapping as one of the
conspirators to the commission of the felony who participated by furnishing the vehicle used in abducting the
Q Who were these people in the group, Mr. Witness?
victims and the house where they were held captive and where Mendoza died.

A Alice Buenaflor, Robert Uy, Ronald Norva, Eduardo Chua and Josie Herrera.
Again, this Court applied the time-honored principle that evidence to be believed must come from the mouth of
a credible witness which accused Chua is not. Indeed, this Court finds no iota of truth on the protestation of
Q And did the kidnapping take place on the second try, Mr. Witness? accused Chua that he knew nothing of accused Uy's plans. It is simply too good to be true that he allowed
Mangelin and accused Montanir to stay at his house to guard it and attend to his store while his caretakers were
A We were not able to take them, ma'am. having a vacation. Neither could this Court find cogent reason why accused Chua would allow accused Uy to use
his vehicle and house totally oblivious of any plan/design or purpose of accused Uy. Nor is it credible that
Q Then what happened, Mr. Witness? accused Chua would allow accused Uy to use his vehicle just to follow up his loan application and then after the
same had been released he (accused Chua) did not come home either to Santa Maria, Bulacan or to Ciudad
Grande, instead, he went straight to the residence of accused Uy, waited for him until the wee hours of the
A On February 5, 1998, on our second try to kidnap them, we were not able to get them because in Ali Mall the morning of the following day, 18 February 1998, only to tell accused Uy he was going home.1avvphi1
car of Alice Buenaflor was bumped by a taxi.

It is also bewildering to this Court why immediately after receiving the money he borrowed, he would spend it in
Q Was there another try after the February 5 try, Mr. Witness? going to Davao with his daughter on 18 February 1988, without any previous plan whatsoever and suspiciously,
upon invitation of accused Uy who had known by then that one of the victims, Mendoza, had died in the course
A On that February 5, when we were not able to take them; they changed the plan. of the kidnapping.

Q And who participated in the plan, Mr. Witness?

Truly, all of the foregoing facts when taken together with the testimonies of Mangelin and Montanir
unequivocally indicate accused Chua's complicity with the criminal design of accused Uy and dissolves the said
accused's plea of innocence.40

Each conspirator is responsible for everything done by his confederates which follows incidentally in the
execution of a common design as one of its probable and natural consequences even though it was not intended
as part of the original design.41 Responsibility of a conspirator is not confined to the accomplishment of a
particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the
purpose intended.42Conspirators are held to have intended the consequences of their acts and by purposely
engaging in conspiracy which necessarily and directly produces a prohibited result that they are in contemplation
of law, charged with intending the result.43 Conspirators are necessarily liable for the acts of another conspirator
even though such act differs radically and substantively from that which they intended to commit.44

Considering the above disquisitions, there is no doubt that conspiracy existed in the perpetration of the crime.
Thus, all of the appellants, having been proven that they each took part in the accomplishment of the original
design, are all equally liable for the crime of Kidnapping with Homicide.

Lastly, this Court finds no error in the CA's modification of the penalty imposed by the trial court. The penalty
imposed by the trial court, which is Death is now reduced to reclusion perpetua in accordance with Republic Act
No. 9346.45

WHEREFORE, the Decision dated April 22, 2008 of the Court Appeals, affirming with modification the Decision
dated October 28, 2004 of the Regional Trial Court (RTC) of Valenzuela City, Branch 171 is
hereby AFFIRMED, with further MODIFICATION that all the appellants herein are equally found GUILTY of the
special complex crime of Kidnapping with Homicide.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

EN BANC
G.R. No. 140895 July 17, 2003
PEOPLE OF THE PHILIPPINES, appellee,
vs.
ALMA BISDA y GAUPO and GENEROSA "JENNY ROSE" BASILAN y PAYAN, appellants.
PER CURIAM:
Before this Court on automatic review is the Decision1 of the Regional Trial Court (RTC) of Marikina City; Branch
272, convicting appellants Alma Bisda and Generosa "Jenny Rose" Basilan, of kidnapping for ransom; sentencing
each of them to the extreme penalty of death by lethal injection, and ordering them to indemnify the parents of
the victim Angela Michelle Soriano the amount of P100,000 as moral damages, and to pay the costs of the suit.
The Case
In an Amended Information docketed as Criminal Case No. 98-2647-MK, the appellants were charged with the
felony of kidnapping for ransom committed as follows:
That on or about the 3rd of September 1998, in the City of Marikina, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping
one another, did there and then willfully, unlawfully, feloniously and knowingly kidnap, detain and
deprive ANGELA MICHELLE SORIANO y SAN JUAN of her liberty for six (6) days for the purpose of
extorting ransom from her/or her family.
Contrary to law.2
When arraigned, the appellants, assisted by counsel, entered separate pleas of not guilty. 3
The Evidence for the Prosecution4
William Soriano, a training consultant by profession, and his wife Marymae Soriano, had two children: Kathleen
Denise and Angela Michelle. They rented a house at No. 5 Col. Divino St., Concepcion, Marikina. Their landlady
who lived nearby had a telephone with number 942-49-18.5 During the school year 1997-1998, then five-year-old
Angela was in Prep at the Mother of Divine Providence School in Marikina Heights, Marikina City. The couple
employed Lea and Wendy Salingatog as the yayas of their children. Angela met appellant Jenny Rose Basilan
when the latter visited her niece Wendy in the Soriano residence. Jenny Rose was, thus, no stranger to Angela.
About 11:00 a.m. on September 3, 1998, Angela's classes had just ended and she was on her way to her school
bus which was parked outside the school campus near the exit gate. She was in her school uniform and wore
black shoes. Unknown to Angela, appellants Alma and Jenny Rose were outside of the school gate waiting for
her. When they saw Angela, Alma and Jenny Rose proceeded to the gate and showed a visitor's gate pass to the
security guard. They approached the young girl, and told her that her parents were waiting for her at the Jollibee
Restaurant. Angela initially refused to go with the two women, but because Alma held on to her hand so tightly
and poked a knife at her, Angela had no choice but to go with them. They rode a tricycle and went to the Jollibee
Restaurant where Jenny Rose ordered spaghetti for Angela. When Angela did not see her parents, she wondered
why she went with Jenny Rose and Alma in the first place. With Angela in tow, Alma and Jenny Rose boarded a
white taxi and went to a "dirty house" where they changed Angela's clothes. The girl was made to wear blouse
and shorts, yellow t-shirt and a pair of panties.6 Alma and Jenny Rose took her earrings. They fed her with the
spaghetti they earlier bought at the restaurant. Alma then left, leaving Angela and Jenny Rose in the house.
Jenny Rose sent Angela to sleep, and after a while, Alma returned. When Angela woke up, Alma and Jenny Rose
served her merienda and allowed her to watch television. Henceforth, Angela was kept in the house. At one
time, Alma and Jenny Rose tied up Angela's hands and feet, and placed scotch tape on her mouth. Angela was
sometimes left alone in the house but the door was kept locked. To pass the time, Angela watched television and
made drawings. Jenny Rose and Alma did not fail to feed and bathe Angela. Angela did not call her parents
through the telephone number of their landlady.
In the meantime, when William arrived home shortly before noon on that day, Lea and Wendy told him that
Angela had not yet arrived home from school. He rushed to the school to fetch Angela, but was informed by the
school security guard that his daughter had already been picked up by two women, one of whom was registered
in the visitor's slip as Aileen Corpuz. Because he did not know anyone by that name, William immediately
proceeded to the registrar's office to verify the information, only to find out that "Aileen Corpuz" had earlier
inquired at the said office about the possibility of transferring Angela to another school. The school staff
panicked when William demanded to know how unknown persons were able to get his daughter. He then
started calling his friends and relatives to help him locate Angela. He also sought the help of Rizza Hontiveros, a
TV personality who promised to relay his plea to the Presidential Anti-Organized Crime Task Force (PAOCTF). The
school staff also reported the incident to the Marikina Police Force which dispatched a team of investigators to
the Soriano residence.7
When apprised of the incident, the PAOCTF organized a team headed by then Chief Inspector Ricardo Dandan
with SPO4 Tito Tuanggang, SPO1 Charles Larroza and civilian agent George Torrente, as members, to conduct
surveillance operations and to recover the victim and arrest the culprits. The team proceeded to the Soriano
residence and to Angela's school to conduct an initial investigation.
At about 6:00 a.m. on September 4, 1998, William's landlady went to his apartment to tell him that a lady had
called up earlier and left a message for him: "Pakisabi na lang kay Mr. Soriano na kakausapin ko siya bukas ng
umaga." When the landlady asked who the caller was, the voice replied, "Hindi na importante iyon."8 William
thereafter convinced his landlady to have her telephone set transferred to his residence to facilitate
communication with his daughter's abductors.9
Shortly before midnight that same day, George arrived at the Soriano residence and asked William if the
kidnapper had already made contact. William responded that a woman had earlier called, through his landlady.
George then instructed William to prolong the conversation should the kidnapper call again, to enable the agents
to establish the possible location of the caller.10
On September 5, 1998 at around 9:25 p.m., William received a call from an unidentified woman who told him,
"Kung gusto mo pang makita yong anak mo, maghanda ka ng five million pesos." He replied, "Saan naman ako
kukuha ng five million? Alam mo naman na nakatira lang ako sa apartment." The caller said, "Hindi ko
masasagot yan. Tatanungin ko na lang sa aking mga boss." William informed George of his conversation with
the caller. George relayed the information by means of a hand-held radio to the other PAOCTF operatives
standing by.11
On September 7, 1998, at about 11:25 a.m., Marymae received a telephone call from a woman demanding for
ransom money. The caller called two more times, at 7:00 p.m. and at 9:26 p.m. Marymae pleaded with the caller
to reduce the ransom money to P25,000, or if that was not possible, to an amount not exceeding P50,000. The
caller said, "Hindi ko masasagot iyan. Dadalhin na lang namin ang bata sa boss namin." Marymae relayed the
conversation to William, their other daughter Kathleen and to George.12
At about noon that day, PAOCTF Chief of Operations Superintendent Michael Ray Aquino received a call from an
anonymous source informing him that a woman who had talked about a ransom and had acted in a suspicious
manner was spotted at the MSC Freight Service office located at No. 1303 Paz Street, Paco, Manila. Acting on the
information, Ricardo, Charles, Tito and other PAOCTF operatives swooped down on the place and saw a woman,
who turned out to be Alma Bisda, emerging from a small house at No. 1258 Paz Street, some fifty meters or so
away from the said office. She had just bought food from an adjacent store at No. 1246 Paz Street, Paco, Manila.
Surveillance operations were thereafter conducted.
At about 3:40 p.m. on September 8, 1998, George and Charles were at the Soriano residence. Ricardo and Tito
were in the periphery of Alma's house, monitoring her whereabouts and movements. Alma again left her house
and after locking the door, went to the small store nearby. She lifted the telephone and called someone. The
telephone in the Soriano residence rang. When William lifted the receiver, he heard a voice similar to that of the
woman who had called him the first time. The caller was asking where the money was. William told her that the
P25,000 was ready, to which she replied, "Hindi ko masasagot iyan, dadalhin na lang namin ang bata sa aking
boss." William told the caller that he was willing to give P50,000 but pleaded that he be given ample time to
produce the money. The woman reiterated: "Hindi ko masasagot iyan."13
Ricardo and Tito heard the sound of a car horn blowing while Alma was using the telephone. Tito called up
Charles and inquired whether he (Charles) heard the same sound while William was talking to the caller. After
William hung up the telephone, he told George that he could hear the horn of a car blowing in the background.
George then called up Ricardo by phone and relayed the information. When George inquired if Ricardo heard the
sound of the horn of a car while Alma was talking over the telephone, Ricardo replied in the affirmative. The
PAOCTF operatives concluded that Alma was the kidnapper.
After making the call, Alma hung up the telephone and returned to her house. The PAOCTF operatives followed.
When Alma unlocked the door to the house, the operatives accosted her. She tried to escape, to no avail. Tito
heard the cry of a child coming from inside the house, pleading for help: "Tita ilabas mo ako!"14 He rushed to the
house and saw the victim Angela. He then carried her outside to safety. The agents searched the house for
evidence and found a pair of black shoes, a pair of panties, a yellow shirt, a set of blouse and shorts with red,
yellow and white stripes. The evidence was placed in a plastic bag.15 The victim and the suspects were thereafter
brought to the PAOCTF office for proper documentation.
When informed that his daughter had already been rescued, William rushed to the PAOCTF headquarters where
he and Angela were reunited. Angela identified Alma as her kidnapper. When William asked Alma why she
kidnapped Angela and what she would do with the one-million-peso ransom she was demanding, she replied:
"Kuya, wag kang maghusga, pareho lang tayong biktima." When William asked Alma: "Biktima, saan?" Alma
replied: "Ang anak ko, kinidnap din nila."16
Chief Inspector Dandan turned over to Evidence Custodian PO2 Joseph Bagsao, the pieces of evidence contained
in a blue Shoe Mart (SM) plastic bag which the operatives found in Alma's house: a pair of black shoes, a pair of
panties, a yellow shirt, a set of white blouse and shorts with red, yellow and white stripes, all of which were sized
to fit a child of 4 to 7 years of age.17
On October 19, 1998, an information for kidnapping for ransom was filed against Alma and Jane Doe.
On October 26, 1998, at around 11:00 a.m., Jenny Rose arrived at the PAOCTF Headquarters in Camp Crame, and
proceeded to PO2 Joseph Bagsao's office where she announced that she was one of Alma's cohorts. PO2 Bagsao
took Jenny Rose's fingerprints and entered the data in a fingerprint index card.18 Jenny Rose was thereafter
placed in a police line-up. Angela, who arrived at the PAOCTF office with her father, identified Jenny Rose as one
of her kidnappers. Police Chief Inspector Atty. Aurelio C. Trampe, Jr., the Legal and Investigation Division Chief of
the PAOCTF, later referred Jenny Rose to the Office of the City Prosecutor of Marikina City, for preliminary
investigation.19
The prosecutor later amended the Information by deleting the name Jane Doe and substituting the name Jenny
Rose Basilan y Payan as the second accused.
Alma's Evidence
Alma denied having kidnapped Angela for ransom. She testified that she was married, and a resident of Block 38,
Lot 38, G. Maliputo Street, Phase II, Area 4, Kaunlaran Village, Navotas, Metro Manila. She was a businesswoman
who ran a local employment agency for household help. She was also engaged in the business of buying and
selling palay grains. Her local employment agency was located in Navotas. She had another office at No. 1258
Paz Street, Paco, Manila, which served as a bodega for items she sent to the province, as well as items she
purchased. She had an adopted daughter named Mary Rose, who, in September 1998, studied at Harris School in
Antipolo. She had employed Wendy Salingatog for a time as the yaya of her adopted daughter. Alma was then
residing in V. Luna Street, Quezon City.
Alma employed Jenny Rose as secretary in her employment agency. In payment for services rendered, Jenny
Rose was sent to school at the Lyceum of the Philippines to study B.S. Business Administration. She was also
given an allowance.
In September 1998, Alma was looking for a school run by nuns that would be willing to accept her adopted
daughter in the middle of the school year. Jenny Rose suggested the Divine Providence School in Marikina City. In
the morning of September 3, 1998, Jenny Rose brought her to the said school. They proceeded to the
administration office where Alma inquired if the school would allow her adopted daughter to enroll. When Jenny
Rose and Alma were about to leave, a little girl, who turned out to be Angela, approached them and asked what
Jenny Rose was doing in her school. Jenny Rose introduced Angela to Alma as her niece, and informed Alma that
she would be bringing Angela with her to her boarding house in España Street.
At that point, Alma asked Jenny Rose and Angela if they wanted to eat. When they agreed, the three of them
proceeded to the Jollibee Restaurant near the Meralco office in Marikina City. After eating, Alma bade them
goodbye and was about to leave for her office when Jenny Rose asked if she and Angela could come along with
her to Cubao. She acceded to the request, and they rode a Tamaraw FX taxi. Because Angela was getting sleepy,
Alma offered to bring them to Jenny's boarding house in España, and dropped them off there. Alma thereafter
proceeded to her office at 1258 Paz St., Paco, Manila, where she had been holding office since January 1997, and
arrived thereat at about 2:00 p.m.
At or about 8:00 p.m. of the same day, Alma passed by Jenny Rose's boarding house to give her instructions on
what to do the following day. She saw Angela crying profusely. She told Jenny Rose to bring Angela home, but
Jenny Rose told her that Angela's parents would be coming to fetch her. Thinking that Angela was probably
bored, Alma suggested that they stay in her office in Paco so that they could watch television while waiting for
Angela's parents. Jenny Rose agreed. They arrived at the said office at around 8:40 p.m. Alma left at around
10:00 p.m. and went home to her rented house in Palmera Homes, Antipolo, where she stayed until September
6, 1998.
On September 7, 1998, at around 12:00 noon, Alma arrived at her office in Paco, Manila, and found that Jenny
Rose and Angela were still there. Jenny Rose assured Alma that Angela would be fetched by her parents. At
around 4:00 p.m., Alma instructed Jenny Rose to go to the province to collect some debts. Jenny Rose left for the
province on the same day. Alma stayed in the office because she was having her menstrual period at the time
and was not feeling well. She took care of Angela while Jenny Rose was away.
The next day, September 8, 1998, Alma was still in her office with Angela. At about 3:00 p.m., while she was
watching television with Angela, someone knocked at the door. When she opened it, two male persons entered.
One of them was Inspector Ricardo Dandan who showed her a photograph of Angela and asked if she knew the
child. Alma answered in the affirmative. Ricardo then asked her, "Don't you know that this is kidnapping?" to
which Alma replied, "I do not know." She also told Dandan that she did not know what was happening to her.
Suddenly, Alma was handcuffed. Angela cried and asked Alma: "What are they doing to you, Tita?" She was
brought to Camp Crame where she was interrogated and detained. Alma did not make any telephone calls that
day. William, Marymae and Angela arrived at Alma's detention cell. When Angela saw her, the girl tried to run to
Alma but William held on to his daughter. William asked Alma why she took Angela, Alma replied that it was
Jenny Rose who brought the girl along with them. She told William that they were both victims.
Sometime on October 26, 1998, Jenny Rose visited Alma to ask for forgiveness and to assume full responsibility
for the incident. Jenny Rose also informed her that she wanted to ask forgiveness from the Sorianos so that she
could finish her schooling. It was only then that she realized what Jenny Rose had done to her. Nevertheless, she
still believed that Jenny Rose was a good person. She advised her to go home and continue with her studies.
When Angela's sworn statement was shown to her, Alma noticed that Angela did not mention Jenny Rose as one
of the two persons who had kidnapped her. Alma executed a handwritten statement denying the truth of the
contents of Angela's affidavit.20
Jenny Rose's Evidence
Jenny Rose did not testify in her defense. She presented Atty. Aurelio Trampe, Jr. as her witness who
testified21 that he was the Legal and Investigation Division Chief of the PAOCTF. On October 26, 1998, he
interviewed Jenny Rose when the latter surrendered to the task force. Jenny Rose insisted that she wanted to
help Alma and get all the blame for the kidnapping. She wanted to admit her participation in the crime, and
volunteered the information that she and Alma kidnapped Angela. Atty. Trampe, Jr. wrote a letter 22 to the
Department of Justice requesting for her inclusion in the ongoing preliminary investigation. He believed that it
would be more appropriate for the prosecutor handling the case to investigate and determine whether Jenny
Rose was the Jane Doe referred to in the complaint. Atty. Trampe, Jr. admitted, however, that aside from the
voluntary surrender of Jenny Rose, he did not have any other evidence to include her as one of the suspects in
the case. Further, he did not provide a lawyer for Jenny Rose because he did not intend to conduct an exhaustive
interrogation, and he knew that even if she admitted her participation, the statement would not be admitted as
evidence.23
Jenny Rose adduced in evidence the letter of Atty. Trampe, Jr. to prove that she voluntarily surrendered and that
there was lack of evidence against her.
On September 16, 1999, the trial court rendered judgment, the decretal portion of which reads:
WHEREFORE, foregoing premises considered, the accused ALMA BISDA y GAUPO and GENEROSA
BASILAN y PAYAN are hereby found GUILTY beyond reasonable doubt of the crime of Kidnapping for
Ransom penalized under Article 267 of the Revised Penal Code, as amended by RA 7659 and is
sentenced to suffer the extreme penalty of DOUBLE DEATH by lethal injection, the two accused having
conspired in the commission thereof. They are further ordered to pay solidarily the parents of the
victim the amount of P100,000.00 as moral damages and costs of the suit.
SO ORDERED.24
The assigned errors ascribed by the appellants to the trial court may be synthesized, thus: (a) the trial court erred
in convicting the appellants of kidnapping; (b) the trial court erred in sentencing the appellants to double
death.25 The Court will delve into and resolve the issues simultaneously.
The prosecution adduced proof beyond reasonable doubt that the appellants kidnapped the victim.
The appellants aver that the prosecution failed to muster proof beyond reasonable doubt that they kidnapped
and illegally detained Angela. Angela in fact voluntarily went with them, and she was free to roam around the
house, and to call her parents through the telephone of their landlady which Angela knew by heart.
There is no proof beyond reasonable doubt that the appellants conspired to kidnap Angela. Appellant Bisda
avers that she is guilty only of slight illegal detention under Article 268 of the Revised Penal Code because (a)
Angela stayed in her office for only three days; and (b) the circumstance of a female offender and a female
offended party is not one of those included in the definition of kidnapping or serious illegal detention under
Article 267 of the RPC.
The trial court's reliance on Angela's testimony is misplaced because the records do not show that Angela had
the capacity to distinguish right from wrong when she testified in open court. The appellants point out that she
was merely six years old at the time. Although Angela took an oath before she testified, the trial judge failed to
ask any questions to determine whether or not she could distinguish right from wrong, and comprehend the
obligation of telling the truth before the court. Hence, one of the standards in determining the credibility of a
child witness was not followed. There is, thus, a veritable doubt that Angela told the truth when she testified.
Moreover, Angela's testimony is, besides being inconsistent on material points, contrary to ordinary human
experience. Angela did not shout or cry when she was forced to leave the school premises and brought to the
Jollibee Restaurant. Angela could have easily sought help from the security guard at the exit gate of the school
and from the customers in the restaurant, or even from the tricycle and taxi drivers; but Angela did not. Angela
even admitted that she voluntarily went with the appellants. She did not cry while detained in the office of
appellant Bisda, and even admitted that it was only that time when she was rescued that she cried. The conduct
of Angela, the appellants insist, is contrary to ordinary human experience, knowledge and observation. By her
own admission in her sworn statement26 to the PAOCTF agents, Angela was assisted by her parents while she
was giving the said statement. This raised doubts as to the veracity of her testimony.
The contentions of the appellants are bereft of merit.
Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads:
ART. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or detain
another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion
perpetua to death.
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if
threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents,
female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by RA No. 7659).27
For the accused to be convicted of kidnapping or serious illegal detention, the prosecution is burdened to prove
beyond reasonable doubt all the elements of the crime, namely, (1) the offender is a private individual; (2) he
kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or
kidnapping must be illegal; and (4) in the commission of the offense any of the following circumstances is
present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public
authority; (c) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill
him are made; or (d) the person kidnapped or detained is a minor, female, or a public officer.28 If the victim of
kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial. Likewise, if the
victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is
immaterial.29 The word "female" in paragraph 1(4) of Article 267 of the Revised Penal Code refers to the gender
of the victim and not of the offender.
The essence of the crime of kidnapping is the actual deprivation of the victim's liberty under any of the above-
mentioned circumstances, coupled with indubitable proof of intent of the accused to effect the same. 30 There
must be a purposeful or knowing action by the accused to forcibly restrain the victim because taking coupled
with intent completes the offense.31 Kidnapping which involves the detention of another is by its nature a
continuing crime.32
The victim's lack of consent is also a fundamental element of kidnapping. The involuntariness of the seizure and
detention is the very essence of the crime.33 The general rule is that the prosecution is burdened to prove lack of
consent on the part of the victim. However, where the victim is a minor especially if she is only five years old,
lack of consent is presumed. She is incompetent to assent to seizure and illegal detention.34 In this case, Angela
was merely five years old when she was kidnapped; thus incapable of giving consent. The consent of such child
could place the appellants in no better position than if the act had been done against her will. The appellants
cannot rely on Angela's initial willingness to go along with them to the restaurant. As Judge Shepherd stated
in State v. Chisenhall:35
It is clear that the consent of the child, obtained by means of persuasion, is no defense, since the result
of such persuasion is just as great an evil as if it had been accomplished by other means.
A kidnapper should not be rewarded with an acquittal simply because she is ingenious enough to conceal her
true motive from her victim until she is able to transport the latter to another place.
Although Angela was free to roam around in the "dirty house," to draw and to watch television during the entire
period of her detention, and was regularly fed and bathed, the appellants are nevertheless guilty of kidnapping
and illegally detaining the five-year-old child. As Judge McGill of the United States Court of Appeals said in United
States v. McCabe,36 "to accept a child's desire for food, comfort as the type of will or consent contemplated in
the context of kidnapping would render the concept meaningless."
In People v. Baldogo,37 this Court held that illegal serious detention under Article 267 of the Revised Penal Code
as amended, includes not only the imprisonment of a person but also the deprivation of her liberty in whatever
form and for whatever length of time. It includes a situation where the victim cannot go out of the place of
confinement or detention or is restricted or impeded in his liberty to move.38 In this case, the door to the office
of appellant Bisda was locked while Angela was detained therein. Even if she wanted to escape and go home,
Angela, at her age, could not do so all by herself. During the period of her confinement, Angela was under the
control of the appellants. The helpless child was waiting and hoping that she would be brought home, or that her
parents would come and fetch her.
The prosecution adduced proof beyond reasonable doubt that the appellants conspired to kidnap and illegally
detain Angela. The appellants' testimonies even buttressed the testimonies of both the victim and the other
witnesses for the prosecution.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit
a felony and decide to commit it.39 In People v. Pagalasan,40 this Court held that conspiracy need not be proven
by direct evidence. It may be inferred from the conduct of the accused before, during and after the commission
of the crime, showing that they had acted with a common purpose and design.41 Conspiracy may be implied if it
is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful
object, each doing a part so that their combined acts, though apparently independent of each other were, in
fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment.
Conspiracy once found, continues until the object of it has been accomplished unless abandoned or broken
up.42 To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed
an overt act in pursuance or furtherance of the complicity.43 There must be intentional participation in the
transaction with a view to the furtherance of the common design and purpose. 44
Each conspirator is responsible for everything done by his confederates which follows incidentally in the
execution of a common design as one of its probable and natural consequences even though it was not intended
as part of the original design.45 Responsibility of a conspirator is not confined to the accomplishment of a
particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the
purpose intended.46Conspirators are held to have intended the consequences of their acts and by purposely
engaging in conspiracy which necessarily and directly produces a prohibited result, they are, in contemplation of
law, chargeable with intending that result.47 Conspirators are necessarily liable for the acts of another
conspirator unless such act differs radically and substantively from that which they intended to commit.48 As
Judge Learned Hand put it in United States v. Andolscheck,49 "when a conspirator embarks upon a criminal
venture of indefinite outline, he takes his chances as to its content and membership, so be it that they fall within
the common purposes as he understands them."
The appellants inveigled Angela into going with them by telling her that her parents were waiting for her at the
Jollibee Restaurant. Appellant Bisda poked a knife at Angela and held her hands so tightly that the helpless child
had no recourse but to come along. The appellants transported Angela on board a taxi and brought her to
Cubao, and then to appellant Bisda's office at No. 1258 Paz St., Paco, Manila. The appellants tied her hands,
covered her mouth with scotch tape, and detained her from September 3, 1998 until September 8, 1998, when
she was providentially rescued by the operatives of the PAOCTF.
The collective, concerted and synchronized acts of the appellants before, during and after the kidnapping and
the illegal detention of Angela constitute indubitable proof that the appellants conspired with each other to
attain a common objective, i.e., to kidnap Angela and detain her illegally. The appellants are thus principals by
direct participation in the kidnapping of Angela and illegally detaining her.
Appellant Basilan cannot escape conviction for the crime charged on her barefaced claim that she merely
accompanied appellant Bisda to the latter's office with the victim in tow. The records show that the appellant
presented as her sole witness Atty. Aurelio Trampe, Jr., then PAOCTF Legal and Investigation Division Chief, who
testified that when she surrendered to him, the appellant admitted that she and appellant Bisda had kidnapped
Angela:
ATTY. SALAMERA:
This court would like to be cleared (sic). Did she admit to you the condition of the alleged
kidnapping on September 3, 1998?
WITNESS:
She volunteered that statement that she was together with Ms. Alma Besda (sic) kidnap (sic)
Angela Michelle Soriano.50
The appellants' contention that the prosecution failed to establish that Angela understood the nature of an oath
and the need for her to tell the truth must fail.
Section 1, Rule 132 of the Revised Rules of evidence provides that the examination of witnesses shall be under
oath or affirmation:51
SECTION 1. Examination to be done in open court. — The examination of witnesses presented in a trial
or hearing shall be done in open court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness
shall be given orally. (1a).52
An oath is defined as an outward pledge, given by the person taking it that his attestation or promise is made
under an immediate sense of his responsibility to God.53 The object of the rule is to affect the conscience of the
witness and thus compel him to speak the truth, and also to lay him open to punishment for perjury in case he
willfully falsifies.54 A witness must be sensible to the obligation of an oath before he can be permitted to
testify.55 It is not, however, essential that he knows how he will be punished if he testify falsely. 56 Under modern
statutes, a person is not disqualified as a witness simply because he is unable to tell the nature of the oath
administered to a witness.57In order that one may be competent as a witness, it is not necessary that he has a
definite knowledge of the difference between his duty to tell the truth after being sworn and before, or that he
be able to state it, but it is necessary that he be conscious that there is a difference. 58 It cannot be argued that
simply because a child witness is not examined on the nature of the oath and the need for her to tell the whole
truth, the competency of the witness and the truth of her testimony are impaired. If a party against whom a
witness is presented believes that the witness is incompetent or is not aware of his obligation and responsibility
to tell the truth and the consequence of him testifying falsely, such party may pray for leave to conduct a voire
dire examination on such witness to test his competency.59 The court may motu proprio conduct the voir dire
examination. In United States v. Buncad,60 this Court held that when a child of tender age is presented as a
witness, it is the duty of the judge to examine the child to determine his competency. In Republic v. Court of
Appeals,61 this Court held that:
[W]hen a witness is produced, it is a right and privilege accorded to the adverse party to object to his
examination on the ground of incompetency to testify. If a party knows before trial that a witness is
incompetent, objection must be made before trial that a witness is incompetent, objection must be
made before he has given any testimony; if the incompetency appears on the trial, it must be
interposed as soon as it becomes apparent.62
The competency of a person to take the prescribed oath is a question for the trial court to decide. 63
If a party admits proof to be taken in a case without an oath, after the testimony has been acted upon by the
court, and made the basis of a judgment, such party can no longer object to the admissibility of the said
testimony.64 He is estopped from raising the issue in the appellate court. This was the ruling of this Court
in Republic v. Court of Appeals,65 thus:
 Simply put, any objection to the admissibility of evidence should be made at the time such evidence is
offered or as soon thereafter as the objection to its admissibility becomes apparent, otherwise the
objection will be considered waived and such evidence will form part of the records of the case as
competent and admissible evidence. The failure of petitioner to interpose a timely objection to the
presentation of Divinaflor's testimony results in the waiver of any objection to the admissibility thereof
and he is therefore barred from raising said issue on appeal.
In this case, Angela was six years old when she testified.66 She took an oath to "tell the truth, the whole truth and
nothing but the truth" before she testified on direct examination. There was nary a whimper of protest or
objection on the part of the appellants to Angela's competence as a witness and the prosecution's failure to
propound questions to determine whether Angela understood her obligation and responsibility of telling the
truth respecting the matter of her testimony before the court. The appellants did not even bother requesting the
trial court for leave to conduct a voir dire examination of Angela. After the prosecution terminated its direct
examination, the appellants thereafter cross-examined Angela extensively and intensively on the matter of her
testimony on direct examination. It was only in this Court that the appellants raised the matter for the first time,
that there was failure on the part of the prosecution to examine Angela on the nature of her oath, and to
ascertain whether she had the capacity to distinguish right from wrong. It is too late in the day for the appellants
to raise the issue.
The determination of the competence and capability of a child as a witness rests primarily with the trial
judge.67 The trial court correctly found Angela a competent witness and her testimony entitled to full probative
weight. Any child regardless of age, can be a competent witness if she can perceive and perceiving, can make
known to others, and that she is capable of relating truthfully facts for which she is examined.68 In People v.
Mendiola,69 this Court found the six-year-old victim competent and her testimony credible. Also in Dulla v. Court
of Appeals,70 this Court gave credence to the testimony of a three-year-old victim. It has been the consistent
ruling of the Court that the findings of facts of the trial court, its calibration of the testimonies of witnesses and
its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded
by the appellate courts high respect if not conclusive effect absent clear and convincing evidence that the trial
court ignored, misconstrued, or misinterpreted cogent facts and circumstances which if considered warrants a
reversal or modification of the outcome of the case.71 In this case the Court finds no basis to deviate from the
findings and conclusions of the trial court on the competency of Angela, and the probative weight of her
testimony.
Appellants must come to grips with case law that testimonies of child victims are given full weight and credit.
The testimony of children of sound mind is likewise to be more correct and truthful than that of older
persons.72 In People vs. Alba,73 this Court ruled that children of sound mind are likely to be more observant of
incidents which take place within their view than older persons, and their testimonies are likely more correct in
detail than that of older persons. Angela was barely six years old when she testified. Considering her tender
years, innocent and guileless, it is incredible that Angela would testify falsely that the appellants took her from
the school through threats and detained her in the "dirty house" for five days. In People v. Dela Cruz,74 this Court
also ruled that ample margin of error and understanding should be accorded to young witnesses who, much
more than adults, would be gripped with tension due to the novelty and the experience in testifying before the
trial court.
The credibility of Angela and the verisimilitude of her testimony is not impaired by her failure to shout for help
when the appellants took her, or to make any attempt to call her parents or to escape from her captors and to
use the telephone to call her parents. At five years old, she could not be expected to act and react to her
kidnapping and detention like an adult should. She did not shout and seek help from the school security guards
because the appellants told Angela that her parents were waiting for her. Appellant Basilan was the niece of
Angela's yaya. She then believed that nothing was amiss. It was only when she failed to see her parents that
Angela blamed herself for going with the appellants in the first place.
Atty. Laracas:
Now, they told you that your parents were at Jollibee. When you did not see your parents,
what did you do?
Witness:
I told myself, why did I go with them.
Atty. Laracas:
So you just told that to yourself?
Witness:
Yes, ma'am.
Atty. Laracas:
So initially, Angela, you are not blaming yourself when you went with Jenny Rose?
Witness:
Yes, ma'am.75
The evidence on record shows that appellant Bisda poked a knife at Angela and her hands were held tightly by
the appellants as they proceeded to the restaurant from the school. Although the Soriano spouses were by
Angela's side when the latter gave her sworn statement76 in the PAOCTF office, there is no showing on record
that the spouses ever influenced their daughter to prevaricate. Significantly, the appellants' counsel did not even
cross-examine Angela on her sworn statement.
In this case, appellant Bisda asserts that Angela's testimony contains four inconsistencies on material points;
hence, is incredible. First, Angela testified on cross-examination that the appellants approached her but she did
not talk to them.77 In contrast, Angela testified on cross-examination that she saw appellant Basilan, and talked
to her.78Second, Angela testified on direct examination that she first came to know the identities of the
kidnappers when she was brought to the "dirty house."79 Angela contradicted herself when she testified on
cross-examination that when she was brought to the said house, she already knew appellant Basilan.80 Third,
Angela testified on direct examination that she went with the appellants to the Jollibee Restaurant when they
held her hands firmly.81 On cross-examination, Angela testified that the appellants threatened her when they
kidnapped her by pointing a knife at her which made her cry.82 Angela further contradicted herself when she
testified on direct examination that the appellants pointed a knife at her "one night."83 Fourth, Angela said that
when she was in the office of appellant Bisda in Paco, Manila, her feet were tied and her mouth was covered You point to her Angel.
with scotch tape.84 However, on cross-examination, Angela revealed that she was free to roam around and even (The witness is pointing to the first lady seated on the left side)
watched television and made drawings.85
Court:
Anent the first and second set of inconsistencies adverted to by the appellants, the same pertain only to minor
and peripheral matters and not to the principal occurrence or the elements of the crime charged, and the Stand up and identify yourself.
positive identification of the appellants. Hence, the credibility of Angela, and that of her testimony were not The lady stood up and identified herself as Jenny Rose Basilan. 88
impaired by the said inconsistencies.86 The inscrutable fact is that the appellants took the victim from the school
and detained her at the office of appellant Bisda at No. 1258 Paz St., Paco, Manila, until she was rescued.
Appellant Basilan did not controvert the evidence of the prosecution that she was the niece of the yaya of the
Whether or not Angela talked with the appellants as she was being brought to the restaurant or that she came to
victim, and that the said appellant, at one time, went to the Soriano residence where Angela saw and met her.
know of the identities of the kidnappers before or when she was brought to the dirty house, are inconsequential.
The victim was, thus, acquainted with appellant Basilan even before the kidnapping.
The overwhelming evidence on record is that no other than the appellants kidnapped her from her school and
illegally detained her from September 3 to 8, 1998. Indeed, when asked to point and identify her kidnappers,
Angela did so spontaneously and positively.87 Angela testified on direct examination, thus:

Pros. Junio: Atty. Junio:

If you see. . . this Alma Besda (sic), if you will be able to see her again, if you see her again, So when Alma and Jenny Rose told you that Mommy and Daddy were at Jollibee, what did
will you be able to recognize her? you do?

Witness: Witness:

Yes, ma'am. I did not want to go with them but they held me firm.

Pros. Junio: Pros. Junio:

Will you point to her. What part of the body did they hold firmly?
(The witness is pointing to a lady, seated at the second from the left at the corner at the last
seat.) Witness:

Court: My hands.

Identify yourself. Pros. Junio:

(The person pointed to, stood up and identified herself as Alma Besda [sic]).
After Alma and Jenny Rose held your hand firmly, what did, where did you go?
Pros. Junio:
Witness:
What about Jenny Rose, will you be able to recognize her?
To Jollibee.89
Witness:
Angela was not asked by the public prosecutor whether or not the appellants threatened her with any weapon
Yes, ma'am. before proceeding to the Jollibee Restaurant. The additional fact was revealed by Angela, ironically, on cross-
examination:
Pros. Junio:
Atty. Salamera:
 Now, were you threatened on September 3 at around eleven in the morning when both Witness:
accused allegedly abducted you?
No, sir.90
Witness:
The prosecutor tried on re-direct to take advantage of Angela's revelation but the appellants' counsel, realizing
Yes, sir. that he had just committed a faux pas, objected to the questions of the public prosecutor. It turned out that the
latter was himself confused because instead of adverting to a knife, as testified to by Angela, he blurted that
Atty. Salamera: appellant Bisda used a gun in intimidating the victim. Even Angela must have been bewildered by the repartees
of the prosecution and the appellants' counsel such that, instead of answering "one time," to the questions of
the prosecutor, she said "one night."
There are two accused, who threatened you?

Redirect:
Witness:

Pros. Junio:
They pointed knife against me.

Angel, how many times did Alma and Jenny Rose point a knife at you?
Atty. Salamera:

Atty. Salamera:
Who pointed the knife upon your person?

Objection. Improper at this point in time. First it was not covered.

Witness:

Pros. Junio:
Alma, sir.

How many times did Alma point a gun?

Atty. Salamera:

Atty. Salamera:
Did you cry?

Knife, your Honor.

Witness:

Pros. Junio:
Yes, sir.

It was covered on cross.

Atty. Salamera:

Court:
Did you also cry inside the Jollibee?

Objection denied. Overruled. Witness may answer.

Witness:

Witness:
No, sir.

One night.91
Atty. Salamera:

There was, thus, no inconsistency in Angela's testimony on this point.

Was Alma still holding a knife at the Jollibee?
Angela's hands were tied, and her mouth was covered with scotch tape the day after she was brought to the Pros. Junio:
dirty house. Angela testified on direct examination, thus:
After they changed your dress or your clothes, what happened next? What did they do to
Pros. Junio: you?

Okay, where did you go? Witness:

Witness: They fed me, ma'am.

To the dirty house. Pros. Junio:

Pros. Junio: After they fed you, what did you do?

Who was with you or who were with you at that time? Witness:

Witness: They send (sic) me to sleep.

Alma Besda (sic) and Jenny Rose, ma'am. Pros. Junio:

Pros. Junio: When you woke up, what did they do to you?

Where is this dirty house located? Witness:

Witness: They fed me (pinamiryenda) (sic)

I do not know, ma'am. Pros. Junio:

Pros. Junio: After you ate your "miryenda" (sic) what else did they do to you?

Upon arriving at that dirty house, what did you do? Witness:

Witness: They allowed me to watch tv, ma'am.

They changed my clothes once. Pros. Junio:

Pros. Junio: What about your hands, your mouth, what did they do?

Do you remember the color of the dress? Witness:

Witness: They tied my hands.

No, ma'am. Pros. Junio;

 And your mouth? All along you were watching tv (sic) at the place where you were taken?

Witness: Witness:

It was sealed with scotch tape. Only once, ma'am.

Pros. Junio: Atty. Larracas:

And your feet? And when you were not watching tv (sic), what were you doing Angela in that dirty house?

Witness: Witness:

They were also tied, ma'am. I was drawing, ma'am.

Pros. Junio: Atty. Larracas:

Who tied your hands? So you watched tv once and the rest of the time you were drawing?

Witness: Witness:

The two of them, ma'am. Yes, ma'am.

Pros. Junio: Atty. Larracas:

Will you mention their names again? Of course, you cannot draw if your hands were tied, Angela?

Witness: Witness:

Alma Besda (sic) and Jenny Rose.92 Yes, ma'm.

On cross-examination, Angela testified that on the day she was rescued, she could watch the television, make Atty. Larracas:
drawings and roam around the room:
So your hands were not tied?
Atty. Larracas:
Witness:
You did . . . At that time you were allegedly rescued, Jenny Rose was not at the place where
you were rescued? No, ma'am.

Witness: Atty. Larracas:

She was not there, ma'am. You can move along freely at that time?

Atty. Larracas: Witness:

 Yes, ma'am. appellants or any of them called through the telephone demanding ransom. The collective testimonies of police
operatives Tito Tuanggang, Ricardo Dandan and George Torrente were hearsay evidence; hence, barren of
Atty. Larracas: probative weight. The trial court likewise failed to take into account the voluntary surrender of appellant Basilan.

You can walk? The Office of the Solicitor General, for its part, posits the view that the prosecution mustered the requisite
quantum of evidence to prove that the appellants and no other demanded ransom from the parents of the
victim.
Witness:

The appellants' contention does not hold water. Admittedly, the prosecution failed to adduce direct evidence
Yes, ma'am.
that the appellants demanded ransom for the release of the victim. However, the prosecution adduced
circumstantial evidence to prove beyond reasonable doubt that the appellants, or at least one of them,
Atty. Larracas: demanded ransom from the Soriano spouses for the release of their daughter.

You can drink? To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal detention for
ransom, the prosecution must prove beyond reasonable doubt: (a) intent on the part of the accused to deprive
Witness: the victim of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the accused, which is
ransom for the victim or other person for the release of the victim. The purpose of the offender in extorting
Yes, ma'am. ransom is a qualifying circumstance which may be proved by his words and overt acts before, during and after
the kidnapping and detention of the victim.94 Neither actual demand for nor actual payment of ransom is
necessary for the crime to be committed.95 Ransom as employed in the law is so used in its common or ordinary
Atty. Larracas: sense; meaning, a sum of money or other thing of value, price, or consideration paid or demanded for
redemption of a kidnapped or detained person, a payment that releases from captivity.96 It may include benefits
Of course, you cannot walk if your feet were tied and cannot drink if your mouth was sealed? not necessarily pecuniary which may accrue to the kidnapper as a condition for the release of the victim.97

Witness: Circumstantial evidence is sufficient to prove the qualifying circumstance if (a) there is more than one
circumstance; (b) the facts from which the inferences are proven; (c) the combination of all the circumstances is
Yes, ma'am such as to produce a conviction beyond a reasonable doubt. The circumstances proved should constitute an
unbroken chain which leads to one fair and reasonable conclusion pointing to the accused to the exclusion of
others as the one who demanded ransom. The circumstances proved must be consistent with each other,
Atty. Larracas:
consistent with the hypothesis that the accused is guilty, and that at the same time inconsistent with any other
hypothesis except that of guilty.98The prosecution must rely on the strength of its evidence and not on the
When the police arrived, what were you doing? weakness of that of the appellants.99

Witness: In this case, the chain of circumstantial evidence adduced by the prosecution proves that no one other than the
appellants or one of them called up the spouses Soriano through the telephone and demanded ransom of
I cried, ma'am.93 P5,000,000:

It is not quite clear whether the counsel for the appellants were asking about Angela's activities during her 1. Appellant Basilan is the niece of Wendy Salingatog, who was for a time the housemaid of appellant Bisda;
detention, or during her rescue. Taking into account Angela's answers, it is evident that her hands were tied and
her mouth covered with scotch tape the day after she was kidnapped, but that she was free to roam around the 2. The appellants kidnapped Angela shortly before noon on September 3, 1998, and detained her at No. 1258 Paz
room, practice on her drawings and watch television during the rest of the period of her detention. Street, Paco, Manila, where appellant Bisda held office;

PROPER PENALTIES 3. The following morning, William was informed by his landlady that a woman had earlier called up over the
telephone requesting her to inform William that she (the caller), would call again the next day, September 5,
The appellants aver that the prosecution failed to prove that in kidnapping and illegally detaining the victim, they 1998;
intended to demand ransom from her parents. William Soriano, the victim's father, failed to prove that the
4. On September 5, 1998, William received a telephone call from a woman demanding a ransom of P5,000,000
for Angela's freedom. When William complained that he did not have the amount, she told William that she
cannot be responsible for it and that she would inquire from her bosses. William's testimony reads:
Pros. Junio:
And what did she tell you?
Witness:
6. At about 3:40 p.m. on September 8, 1998, appellant Bisda emerged from the house at No. 1258 Paz Street,
and went to the small store near the house. Chief Inspector Dandan and Tito Tuanggang were about two meters
from the store and saw appellant Bisda enter the same, lift the telephone and talk to someone over the
telephone;
7. At about the same time, William received a telephone call from a woman demanding where the money was
and when William replied that he was ready with P25,000, the woman replied: Hindi ko masasagot iyan,
dadalhin na lang namin ang Bata sa aking boss." When William intimated that he could raise P50,000 but
pleaded for more time to produce the amount, the woman retorted: "Hindi ko masasagot iyan." William's
testimony reads:

She told me KUNG GUSTO MO PANG MAKITA IYONG ANAK MO, MAGHANDA KA NG FIVE
Pros. Junio:
MILLION PESOS.

On September 8, 1998, at about 3:40 in the afternoon, what happened if any?

Pros. Junio:

Witness:
What did you told (sic) her if any?

At around 3:40 in the afternoon of September 8, a lady caller called again. I answered the
Witness:
telephone.

SAAN AKO KUKUHA NG FIVE MILLION PESOS? ALAM MO NAMAN NA NAKATIRA LANG AKO
Pros. Junio:
SA APARTMENT.

Who was this lady caller?

Pros. Junio:

Witness:
What did she say?

I would say, my perception is it was the same lady caller who called the first time I answered
Witness:
the telephone.

She answered, HINDI KO MASASAGOT YAN.

Pros. Junio:

Pros. Junio:
And what did she tell you?

Did she tell you why she could not respond to you?
Witness:

Witness:
And she told me where is the money.

She continued to say "TATANUNGIN KO NA LANG SA AKING MGA BOSS."100

Pros. Junio:

5. In the morning of September 7, 1998, Inspector Ricardo Dandan and SPO4 Tito Tuanggang, acting on an
And what did you tell her?
anonymous tip, rushed to the vicinity of No. 1303 Paz Street, Paco, Manila, the office of the MSC Freight Service,
to conduct surveillance operations. Later in the afternoon, they saw appellant Bisda emerging from a small
house about fifty meters from the office of the MSC Freight Service; Witness:

And I also told her if its okey with you, my twenty-five is ready.
 Pros. Junio: CIVIL LIABILITIES OF THE APPELLANTS

Then what did she say? The trial court awarded P100,000 moral damages to the spouses William and Marymae Soriano, the parents of
the victim. The trial court did not award any moral and exemplary damages to the victim. The decision of the trial
Witness: court has to be modified. Under Article 2219, paragraph 7, of the New Civil Code, moral damages may be
awarded to a victim of illegal arrest and detention. In this case, the appellants poked a knife on the victim as they
took her from the school. The appellants also tied her hands, and placed scotch tape on her mouth. The hapless
She said "HINDI KO MASASAGOT IYAN, DADALIN NA LANG NAMIN ANG BATA SA AKING
victim was so shocked when operatives of the PAOCTF barged into the office of appellant Bisda, and took
BOSS."
custody of the victim that she cried profusely. The victim suffered trauma, mental, physical and psychological
ordeal. There is, thus, sufficient basis for an award of moral damages in the amount of P300,000.104 Since there
Pros. Junio: were demands for ransom, not to mention the use by the appellants of a vehicle to transport the victim from the
school to the Jollibee Restaurant and to the office of appellant Bisda, the victim is entitled to exemplary damages
What happened next after that? in the amount of P100,000.105 Although the victim claims that the appellants took her earrings, the prosecution
failed to prove the value of the same.
Witness:
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Marikina City, Branch 272, is
I would like to plead that I will make it fifty thousand, just give me ample time. AFFIRMED WITH MODIFICATION. The appellants, Alma Bisda and Generosa "Jenny Rose" Basilan, are found
guilty beyond reasonable doubt of kidnapping for ransom under paragraph 4 and the last paragraph of Article
267, of the Revised Penal Code, and are sentenced to suffer the penalty of death by lethal injection. The
Pros. Junio: appellants are hereby directed to pay jointly and severally to the victim Angela Michelle Soriano the amount of
P300,000 by way of moral damages and P100,000 by way of exemplary damages. Costs against the appellants.
How did she react to your suggestion?
Three Justices of the Court maintain their position that Rep. Act No. 7659 is unconstitutional insofar as it
Witness: prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is
constitutional, and that the death penalty can be lawfully imposed in the case at bar.
"HINDI KO MASASAGOT IYAN." Then she hanged (sic) the phone.101
In accordance with Section 25 of Rep. Act No. 7659 amending Section 83 of the Revised Penal Code, let the
8. After making the telephone call, appellant Bisda left the store and returned to the house at No. 1258 Paz records of this case be forthwith forwarded, upon finality of this Decision, to the Office of the President for
Street, Paco, Manila; possible exercise of the pardoning power. Costs against the appellants.

9. The operatives from the PAOCTF followed appellant Bisda and confronted her before she could enter the SO ORDERED.
house. The operatives then barged into the premises of No. 1258 Paz Street where they saw Angela in the room;
Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo,
10. When William arrived at the PAOCTF office, with Angela that day, he inquired from appellant Bisda why she Sr., Azcuna and Tinga, JJ., concur.
kidnapped Angela and what she would do with the P5,000,000 ransom she was demanding, and the appellant Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
replied: "Kuya, wag (sic) kang nang maghusga, pareho lang tayong biktima." When William asked Alma:
"Biktima, saan?" The appellant replied: "Ang anak ko, kinidnap din nila."

In light of the foregoing facts, there can be no other conclusion than that appellant Bisda demanded a ransom of
P5,000,000 from William Soriano; hence, she is GUILTY of kidnapping for ransom. Being a conspirator, appellant
Basilan is also guilty of the said crime. The penalty for kidnapping for ransom is death, a single and indivisible
penalty. The aggravating circumstance of use of a motor vehicle under Article 14, paragraph 20 of the Revised
Penal Code was attendant in the commission of the crime.102 However, said circumstance, as well as the
voluntary surrender of appellant Basilan, are inconsequential in the penalties to be imposed on the said
appellants, conformably to Article 63 of the Revised Penal Code.103
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 179943 June 26, 2009
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
MARLON ALBERT DE LEON y HOMO, Appellant.
DECISION
PERALTA, J.:
This is an appeal from the Decision1 of the Court of Appeals (CA), affirming with modification the Decision2 of the
Regional Trial Court (RTC), Branch 76, San Mateo, Rizal, finding appellant Marlon Lambert De Leon y Homo guilty
beyond reasonable doubt of the crime of robbery with homicide.
The factual and procedural antecedents are as follows:
According to the prosecution, in the early morning, around 2 o'clock of January 7, 2000, Eduardo Zulueta and
Fortunato Lacambra III, both gasoline boys; Julieta Amistoso, cashier; and Edralin Macahis, security guard; all
employees of Energex Gasoline Station, located at Barangay Guinayan, San Mateo, Rizal, were on duty when a
mint green-colored Tamaraw FX arrived for service at the said gasoline station. 3
Eduardo Zulueta was the one who attended to the said vehicle. He went to the driver’s side in order to take the
key of the vehicle from the driver so that he could open the gas tank. He saw through the lowered window shield
that there were about six to seven persons aboard the vehicle. He proceeded to fill up ₱50.00 worth of diesel in
the gas tank. After doing this, he returned the key to the driver. While returning the key, the driver told him that
the engine of the vehicle would not start.4 Eduardo Zulueta offered to give the vehicle a push. While Eduardo
Zulueta and fellow gasoline boy Fortunato Lacambra III were positioned at the back of the vehicle, ready to push
the same, the six male passengers of the same vehicle, except the driver, alighted and announced a hold-up.
They were armed with a shotgun and .38 caliber pistol.5
Fortunato Lacambra III was ordered to lie down,6 while Eduardo Zulueta was directed to go near the Car Wash
Section.7 At that instance, guns were poked at them.8
Appellant, who guarded Eduardo Zulueta, poked a gun at the latter and took the latter's wallet containing a
pawnshop ticket and ₱50.00, while the companion of the former, hit the latter on his nape with a gun.9
Meanwhile, four members of the group went to the cashier's office and took the money worth
₱3,000.00.10 Those four robbers were also the ones who shot Edralin Macahis in the stomach.11 Thereafter, the
same robbers took Edralin Macahis' service firearm.12
After he heard successive gunshots, Eduardo Zulueta saw appellant and his companions immediately leave the
place.13 The robbers boarded the same vehicle and proceeded toward San Mateo, Rizal.14 When the robbers left,
Eduardo Zulueta stood up and found Julieta Amistoso, who told him that the robbers took her bag and jewelry.
He also saw that Edralin Macahis had a gunshot wound in the stomach. He immediately hailed a vehicle which
transported the injured Edralin Macahis to the hospital.15 Later on, Edralin Macahis died at the hospital due to
the gunshot wound.16
The following day, Eduardo Zulueta identified appellant as one of the robbers who poked a gun at him.17
However, according to appellant, from January 4 to 6, 2000, he stayed at the house of his Tita Emma at Pantok,
Binangonan, Rizal, helping the latter in her canteen. On the evening of January 6, at approximately 9 o'clock,
appellant asked permission from his Tita Emma to go to Antipolo. Catherine Homo, appellant's cousin and the
latter's younger brother, accompanied appellant to the terminal. While waiting for a ride, the vehicle, a Tamaraw
FX, of a certain Christian Gersalia, a relative of appellant and Catherine Homo, passed by. Catherine Homo asked
Christian Gersalia if he would allow appellant to hitch a ride on his vehicle. Christian Gersalia agreed. Aside from
Christian Gersalia, there were other passengers in the said vehicle.18
When the vehicle reached Masinag, where appellant was supposed to alight, he was not allowed to do so;
instead, he was asked by the other passengers to join them in their destination. While on the road, appellant fell
asleep. When he woke up, they were in a gasoline station. He then saw Christian Gersalia and the other
passengers conducting a hold-up. He never left the vehicle and was not able to do anything because he was
overwhelmed with fear. After he heard the gunshots, Christian Gersalia and the other passengers went to the
vehicle and proceeded towards Marikina. On their way, they were followed by policemen who fired at them. The
other passengers fired back at the policemen. It was then that the vehicle hit a wall prompting the other
passengers to scamper in different directions leaving him behind. When the policemen arrived, he was
immediately arrested.19
As a result of the above incident, four Informations for Robbery with Homicide were filed against appellant, Rudy
Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, an alias "Rey," an alias
"Jonard," an alias "Precie," and an alias "Renato," which read as:
Criminal Case No. 4747
That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias " Precie" and Alias "Renato" whose true names, identities and present whereabouts
are still unknown and still at-large, and conspiring and mutually helping and assisting one another, while armed
with unlicensed firearms and acting as a band, with intent of gain with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of
motor vehicle and by means of force, violence and intimidation, employed upon ENERGEX GASOLINE STATION,
owned by Regino C. Natividad, and represented by Macario C. Natividad, did then and there willfully, unlawfully
and feloniously rob, steal and carry away its cash earnings worth ₱3,000.00, to the damage and prejudice of said
Energex Gasoline Station in the aforesaid amount of ₱3,000.00 and on the occasion of the said robbery, the
above-named accused, while armed with unlicensed firearms with intent to kill, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias "Precie" and Alias "Renato," whose true names, identities and present whereabouts
are still unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and
shoot one EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot
wound on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4748
That on or about the 7th day of January 2000 in the Municipality of San Mateo, Province of Rizal, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating ,
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias " Precie" and Alias "Renato," whose true names, identities and present whereabouts
are still unknown and still at-large and conspiring and mutually helping and assisting one another, while armed
with unlicensed firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of
a motor vehicle and by means of force, violence and intimidation, employed upon the person of JULIETA A.
AMISTOSO, the Cashier of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob,
steal and carry away the following, to wit:
a) One (1) ladies ring with sapphire stone valued at ₱1,500.00
b) One (1) Omac ladies wristwatch valued at ₱2,000.00
c) Guess black bag valued at ₱500.00
d) Leather wallet valued at ₱150.00
e) White T-Shirt valued at ₱175.00
to her damage and prejudice in the total amount of ₱4,325.00 and on the occasion of the said robbery, the
above-named accused while armed with unlicensed firearms with intent to kill, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias "Precie" and Alias "Renato," whose true names, identities and present whereabouts
are still unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and
shoot one EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot
wound on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4749
That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together
with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias "Rey,"
Alias "Jonard," Alias "Precie" and Alias "Renato," whose true names, identities and present whereabouts are still
unknown and still at-large, and conspiring and mutually helping and assisting one another, while armed with
unlicensed firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery, abuse
of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of a
motor vehicle and by means of force, violence and intimidation, employed upon EDRALIN MACAHIS, a Security
Guard of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob, steal, and carry
away his service firearm .12 gauge shotgun with serial number 13265 valued at ₱12,000.00 owned by Alert and
Quick (A-Q) Security Services Incorporated represented by its General Manager Alberto T. Quintos to the damage
and prejudice of said Alert and Quick (A-Q) Security Services Incorporated in the aforesaid amount of ₱12,000.00
and on the occasion of the said robbery the above-named accused, while armed with unlicensed firearms, with
intent to kill conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey", Alias "Jonard", Alias " Precie" and Alias "Renato", whose true
names, identities and present whereabouts are still unknown and still at-large, did then and there willfully,
unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, thereby inflicting upon him gunshot
wound on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4750
That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey," Alias "Jonard," Alias "Precie" and Alias "Renato," whose true names, identities and present whereabouts
are still unknown and still at-large and conspiring and mutually helping and assisting one another, while armed
with unlicensed firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of
a motor vehicle and by means of force, violence and intimidation, employed upon the person of EDUARDO
ZULUETA, a gasoline boy of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob,
steal and carry away the following to wit:
a) Pawnshop Ticket from M. Lhuiller Pawnshop for one (1) black Citizen men's watch (automatic)
valued at ₱2,000.00
b) Cash money worth ₱50.00
to his damage and prejudice in the total amount of ₱2,050.00 and on the occasion of the said robbery,
the above-named accused, while armed with unlicensed firearms with intent to kill, conspiring and
confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela,
Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias "Precie" and Alias "Renato," whose true names,
identities and present whereabouts are still unknown and still at-large, did then and there willfully,
unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security Guard of
Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk which directly
caused his death.
Contrary to law.
Upon arraignment on March 23, 2000, appellant, with the assistance of counsel de parte, entered a plea of not
guilty on all the charges. Thereafter, trial on the merits ensued.
The prosecution presented five witnesses, namely: Macario C. Natividad,20 then officer-in-charge of Energex
Gasoline Station where the incident took place; Edito Macahis,21 a cousin of the deceased security guard Edralin
Macahis; Fortunato Lacambra III,22 a gasoline boy of the same gas station; Eduardo Zulueta,23 also a gasoline boy
of the same gas station, and Alberto Quintos,24 general manager of Alert and Quick Security Services, Inc., where
the deceased security guard was employed.
The defense, on the other hand, presented two witnesses, namely: Catherine Homo,25 a cousin of appellant and
the appellant26 himself.
On December 20, 2001, the RTC rendered its Decision27 convicting appellant beyond reasonable doubt of all the
charges against him, the dispositive portion of which reads:
1. In Criminal Case No. 4747, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable
doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the
Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date,
remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death,
taking into consideration the use of an unlicensed firearm in the commission of the crime as an
aggravating circumstance; to pay Energex Gasoline Station owned by Regino Natividad and
represented by Macario C. Natividad the amount of ₱3,000.00 as compensatory damages and to pay
the costs;
2. In Crim. Case No. 4748, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable
doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the
Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date,
remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death,
taking into consideration the use of an unlicensed firearm in the commission of the crime as an
aggravating circumstance, and to pay the costs;
3. In Crim. Case No. 4749, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable
ground of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the
Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date,
remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death,
taking into consideration the use of an unlicensed firearm in the commission of the crime as an
aggravating circumstance; to indemnify the heirs of Edralin Macahis in the amount of ₱50,000.00 as
death indemnity; to pay ₱12,000.00 as compensatory damages for the stolen service firearm if
restitution is no longer possible and ₱50,000.00 as moral damages, and to pay the costs;
4. In Crim. Case No. 4750, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable
doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the
Revised Penal Code, as amended by Sec. 9 of R.A 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date,
remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death,
taking into consideration the use of an unlicensed firearm in the commission of the crime as an
aggravating circumstance and to pay Eduardo Zulueta, victim of the robbery, in the amount of
₱2,050.00 as compensatory damages for the stolen properties if restitution is no longer possible and to
pay the costs.
As against accused Rudy Gersalia and Christian Gersalia, who have, to date, remained at-large, let a warrant of
arrest be issued against them and let these cases be, in the meantime, sent to the archives without prejudice to
their reinstatement upon apprehension of the said accused.
As against accused Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias
"Precie and Alias "Renato," whose true names, identities and present whereabouts are still unknown and are still
at-large, let these cases be, in the meantime, sent to the archives without prejudice to their reinstatement upon
the identification and apprehension of the said accused.
SO ORDERED.
The cases were appealed to this Court, however, on September, 21, 2004,28 in conformity with the Decision
dated July 7, 2004 in G.R. Nos. 147678-87 entitled The People of the Philippines v. Efren Mateo y Garcia,
modifying the pertinent provisions of the Revised Rules of Criminal Procedure, more particularly Sections 3 and
10 of Rule 125 and any other rule insofar as they provide for direct appeals from the RTCs to this Court in cases
where the penalty imposed is death, reclusion perpetua or life imprisonment, as well as the Resolution of this
Court, en banc dated September 19, 1995, in "Internal Rules of the Supreme Court" in cases similarly involving
the death penalty, pursuant to the Court's power to promulgate rules of procedure in all courts under Article VII,
Section 5 of the Constitution, and allowing an intermediate review by the CA before such cases are elevated to
this Court. This Court transferred the cases to the CA for appropriate action and disposition.
The CA, on June 29, 2007,29 affirmed with modification, the Decision of the RTC, with the dispositive portion
reading:
WHEREFORE, the appealed decision is AFFIRMED with MODIFICATION. Accused Marlon Albert de Leon y Homo is
hereby found guilty beyond reasonable doubt of the crime of Robbery with Homicide of only one count.
Given the passage of Republic Act 9346 which took effect on 24 June 2006, the penalty imposed upon Marlon de
Leon y Homo is hereby reduced or commuted to reclusion perpetua.
SO ORDERED.
On December 10, 2007, this Court accepted the appeal,30 the penalty imposed being reclusion perpetua.
The Office of the Solicitor General (OSG), on February 8, 2008, filed its Manifestation and Motion In Lieu of the
Supplemental Brief31 dated February 4, 2008 stating that it will no longer file a supplemental brief, considering
that appellant has not raised any new issue that would require the filing of a supplemental brief.
Appellant filed a Manifestation32 on February 22, 2008 stating that he re-pleads and adopts his Appellant's Brief
and Reply Brief as Supplemental Brief.
Appellant, in his Brief,33 assigned the following errors:
I taking of human life.39 The homicide may take place before, during or after the robbery. It is only the result
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT A CO-CONSPIRATOR IN THE
COMMISSION OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE
SAME AND GUILT BEYOND REASONABLE DOUBT.
II
ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY OF ROBBERY WITH HOMICIDE, THE TRIAL
COURT GRAVELY ERRED IN IMPOSING FOUR (4) DEATH PENALTIES DESPITE THAT THE CRIME CHARGED
WAS PRODUCED BY ONE SINGLE ACT WHICH SHOULD BE METED WITH A SINGLE PENALTY.
The OSG, in its Appellee's Brief,34 insisted that all the elements of the crime and the appellant's participation in
the crime had been established.
Appellant, in his Reply Brief,35 argued that the penalty should not be death, but only reclusion perpetua, because
the aggravating circumstance of use of unlicensed firearm, although alleged in the Information, was not alleged
with specificity.
Article 294, paragraph 1 of the Revised Penal Code provides:
Art. 294. Robbery with violence against or intimidation of persons – Penalties. - Any person guilty of robbery with
the use of violence against or 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, or when the robbery shall have been accompanied by rape or intentional
mutilation or arson.
In People v. De Jesus,36 this Court had exhaustively discussed the crime of robbery with homicide, thus:
For the accused to be convicted of the said crime, the prosecution is burdened to prove the confluence of the
following elements:
(1) the taking of personal property is committed with violence or intimidation against persons;
(2) the property taken belongs to another;
(3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion thereof, homicide is committed.37
In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with homicide
perpetrated on the occasion or by reason of the robbery.38 The intent to commit robbery must precede the
obtained, without reference or distinction as to the circumstances, causes or modes or persons intervening in
the commission of the crime that has to be taken into consideration.40 There is no such felony of robbery with
homicide through reckless imprudence or simple negligence. The constitutive elements of the crime, namely,
robbery with homicide, must be consummated.
It is immaterial that the death would supervene by mere accident; or that the victim of homicide is other than
the victim of robbery, or that two or more persons are killed, or that aside from the homicide, rape, intentional
mutilation, or usurpation of authority, is committed by reason or on the occasion of the crime. Likewise
immaterial is the fact that the victim of homicide is one of the robbers; the felony would still be robbery with
homicide. Once a homicide is committed by or on the occasion of the robbery, the felony committed is robbery
with homicide. All the felonies committed by reason of or on the occasion of the robbery are integrated into one
and indivisible felony of robbery with homicide. The word "homicide" is used in its generic sense. Homicide, thus,
includes murder, parricide, and infanticide.
Intent to rob is an internal act, but may be inferred from proof of violent unlawful taking of personal property.
When the fact of asportation has been established beyond reasonable doubt, conviction of the accused is
justified even if the property subject of the robbery is not presented in court. After all, the property stolen may
have been abandoned or thrown away and destroyed by the robber or recovered by the owner.41 The
prosecution is not burdened to prove the actual value of the property stolen or amount stolen from the victim.
Whether the robber knew the actual amount in the possession of the victim is of no moment, because the
motive for robbery can exist regardless of the exact amount or value involved.42
When homicide is committed by reason or on the occasion of robbery, all those who took part as principals in
the robbery would also be held liable as principals of the single and indivisible felony of robbery with homicide,
although they did not actually take part in the killing, unless it clearly appears that they endeavored to prevent
the same.43
If a robber tries to prevent the commission of homicide after the commission of the robbery, he is guilty only of
robbery and not of robbery with homicide. All those who conspire to commit robbery with homicide are guilty as
principals of such crime, although not all profited and gained from the robbery. One who joins a criminal
conspiracy adopts the criminal designs of his co-conspirators and can no longer repudiate the conspiracy once it
has materialized.44
Homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it was
committed (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit
of the loot; (c) to prevent discovery of the commission of the robbery; or, (d) to eliminate witnesses in the
commission of the crime. As long as there is a nexus between the robbery and the homicide, the latter crime
may be committed in a place other than the situs of the robbery.
From the above disquisition, the testimonies of the witnesses, and pieces of evidence presented by the
prosecution, the crime of robbery with homicide was indeed committed. There was no mistaking from the
actions of all the accused that their main intention was to rob the gasoline station and that on occasion of such
robbery, a homicide was committed. The question now is whether there was conspiracy in the commission of
the crime. According to appellant, the prosecution failed to prove that he was a co-conspirator. However, this
Court finds no merit to appellant's argument.
If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful
object, each doing a part so that their combined acts, though apparently independent, were in fact connected
and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy
may be inferred though no actual meeting among them to concert means is proved. That would be termed an
implied conspiracy.45 The prosecution was able to prove the presence of an implied conspiracy. The witnesses
were able to narrate in a convincing manner, the circumstances surrounding the commission of the robbery and
positively identified appellant as one of the robbers. Witness Eduardo Zulueta testified that appellant was one of
the robbers who poked a gun at him, thus:
Q. Were you able to identify those two armed male persons who poked their guns at you?
A: Yes, sir.
Q: Kindly look around inside this courtroom and inform the Hon. Court whether those two (2) persons
who poked their guns at you were (sic) present now?
A: Only one, sir, and there he is.
(At this juncture, witness pointing to a certain person who answered by the name of MARLON ALBERT
DE LEON when asked.)
Q: This Marlon De Leon was he the one who guarded you in the carwash or not?
A: Yes, sir.
Q: Now, what happened to you at the carwash where this Marlon De Leon was guarding you?
A: His gun was poked at me, sir.
Q: What else transpired, Mr. Witness, or what else happened to you aside from that?
A: He hit me with his gun on my nape, sir.
Q: What else, Mr. Witness?
A: He got my wallet from my pocket, sir.
Q: Who hit you with a gun?
A: His other companion, sir.46
Appellant was also identified by witness Fortunato Lacambra III, thus:
Q: What about that person who ordered Zulueta to go to the carwash section and hit him, was he also
armed?
A: Yes, sir.
Q: What kind of firearm was he carrying then?
A: Also .38 caliber, sir.
Q: Were you able to identify or recognize that person who approached and ordered Zulueta to go to
the carwash section?
A: Yes, sir.
Q: If that person is inside the courtroom, will you be able to identify him?
A: Yes, sir.
Q: Kindly point to him?
A: That man, sir. (Witness pointed to a person who answered by the name of Marlon Albert de Leon).47
Therefore, it can be inferred from the role appellant played in the commission of the robbery, that a conspiracy
existed and he was part of it. To be a conspirator, one need not participate in every detail of the execution; he
need not even take part in every act or need not even know the exact part to be performed by the others in the
execution of the conspiracy. Each conspirator may be assigned separate and different tasks which may appear
unrelated to one another but, in fact, constitute a whole collective effort to achieve their common criminal
objective.48 Once conspiracy is shown, the act of one is the act of all the conspirators. The precise extent or
modality of participation of each of them becomes secondary,49 since all the conspirators are principals.
As to the credibility of the witnesses, the RTC's findings must not be disturbed. The well-settled rule in this
jurisdiction is that the trial court’s findings on the credibility of witnesses are entitled to the highest degree of
respect and will not be disturbed on appeal without any clear showing that it overlooked, misunderstood or
misapplied some facts or circumstances of weight or substance which could affect the result of the case. 50
For his defense, appellant merely denied participating in the robbery. However, his presence during the
commission of the crime was well-established as appellant himself testified as to the matter. Granting that he
was merely present during the robbery, his inaction does not exculpate him. To exempt himself from criminal
liability, a conspirator must have performed an overt act to dissociate or detach himself from the conspiracy to
commit the felony and prevent the commission thereof.51 Appellant offered no evidence that he performed an
overt act neither to escape from the company of the robbers nor to prevent the robbery from taking place. His
denial, therefore, is of no value. Courts generally view the defenses of denial and alibi with disfavor on account
of the facility with which an accused can concoct them to suit his defense. As both evidence are negative and
self-serving, they cannot attain more credibility than the testimonies of prosecution witnesses who testify
clearly, providing thereby positive evidence on the various aspects of the crime committed.52
Consequently, the CA was correct in ruling that appellant was guilty only of one count of robbery with homicide.
In the crime of robbery with homicide, there are series of acts, borne from one criminal resolution, which is to
rob. As decided53 by the Court of Appeals:
A continued (continuous or continuing) crime is defined as a single crime, consisting of a series of acts but all
arising from one criminal resolution.54 Although there is a series of acts, there is only one crime committed;
hence, only one penalty shall be imposed.55
In the case before Us, [appellant] and his companions intended only to rob one place; and that is the Energex
gasoline station. That they did; and in the process, also took away by force the money and valuables of the
employees working in said gasoline station. Clearly inferred from these circumstances are the series of acts
which were borne from one criminal resolution. A continuing offense is a continuous, unlawful act or series of
acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may
occupy.56 This can be said of the case at hand.
Akin to the extant case is that of People v. De la Cruz,57 wherein the robbery that took place in several houses
belonging to different persons, when not absolutely unconnected, was held not to be taken as separate and
distinct offenses. They formed instead, component parts of the general plan to despoil all those within the
vicinity. In this case, the Solicitor General argued that the [appellant] had committed eight different robberies,
because the evidence shows distinct and different acts of spoilation in different houses, with several victimized
persons.58 The Highest Tribunal, however, ruled that the perpetrated acts were not entirely distinct and
unconnected from one another.59 Thus, the single offense or crime.
Now, this Court comes to the penalty imposed by the CA. The decision60 merely states that, in view of the
enactment of R.A. 9346, the sentence of Death Penalty, imposed upon appellant, is automatically commuted
to reclusion perpetua, but is silent as to how it had arrived into such a conclusion.1avvphi1
Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, robbery with homicide is punishable
by reclusion perpetua to death, which are both indivisible penalties. Article 63 of the same Code provides that, in
all cases in which the law prescribes a penalty composed of two indivisible penalties, the greater penalty shall be
applied when the commission of the deed is attended by one aggravating circumstance.61 It must be
remembered that the Informations filed with the RTC alleged the aggravating circumstance of the use of
unlicensed firearm. Pursuant to the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294,
such use of an unlicensed firearm is a special and not a generic aggravating circumstance in the homicide or
murder committed. As explained by this Court in Palaganas v. People:62
Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article
14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of
increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next higher
degree. It must always be alleged and charged in the information, and must be proven during the trial in order to
be appreciated.63 Moreover, it can be offset by an ordinary mitigating circumstance.
On the other hand, special aggravating circumstances are those which arise under special conditions to increase
the penalty for the offense to its maximum period, but the same cannot increase the penalty to the next higher
degree. Examples are quasi-recidivism under Article 160 and complex crimes under Article 48 of the Revised
Penal Code. It does not change the character of the offense charged.64 It must always be alleged and charged in
the information, and must be proven during the trial in order to be appreciated.65 Moreover, it cannot be offset
by an ordinary mitigating circumstance.
It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are
exactly the same except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating
circumstance whereas in the case of special aggravating circumstance, it CANNOT be offset by an ordinary
mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided
for under Presidential Decree No. 1866,66 as amended by Republic Act No. 8294,67 which is a special law. Its
pertinent provision states:
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.
In interpreting the same provision, the trial court reasoned that such provision is "silent as to whether it is
generic or qualifying."68 Thus, it ruled that "when the law is silent, the same must be interpreted in favor of the
accused."69Since a generic aggravating circumstance is more favorable to petitioner compared to a qualifying
aggravating circumstance, as the latter changes the nature of the crime and increase the penalty thereof by
degrees, the trial court proceeded to declare that the use of an unlicensed firearm by the petitioner is to be
considered only as a generic aggravating circumstance.70 This interpretation is erroneous, since we already held
in several cases that with the passage of Republic Act No. 8294 on 6 June 1997, the use of an unlicensed firearm
in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating
circumstance.71 Republic Act No. 8294 applies to the instant case since it took effect before the commission of
the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case
should be designated and appreciated as a SPECIAL aggravating circumstance and not merely a generic
aggravating circumstance.
In another case,72 this Court ruled that, the existence of the firearm can be established by testimony, even
without the presentation of the firearm.73 In the said case, it was established that Elmer and Marcelina Hidalgo
died of, and Pedro Hidalgo sustained, gunshot wounds. The ballistic examination of the slugs recovered from the
place of the incident showed that they were fired from a .30 carbine rifle and a .38 caliber firearm. The
prosecution witnesses positively identified appellant therein as one of those who were holding a long firearm. It
was also established that the same appellant was not a licensed firearm holder. Hence, this Court ruled that the
trial court and the CA correctly appreciated the use of unlicensed firearm as an aggravating circumstance.
After a careful study of the records of the present case, this Court found that the use of unlicensed firearm was
not duly proven by the prosecution. Although jurisprudence dictates that the existence of the firearm can be
established by mere testimony, the fact that appellant was not a licensed firearm holder must still be
established. The prosecution failed to present written or testimonial evidence to prove that appellant did not
have a license to carry or own a firearm, hence, the use of unlicensed firearm as an aggravating circumstance
cannot be appreciated.
Finally, it is worth noting that the RTC ordered appellant to indemnify the heirs of Edralin Macahis the amount of
₱50,000.00 as death indemnity, ₱12,000.00 as compensatory damages for the stolen service firearm if
restitution is no longer possible and ₱50,000.00 as moral damages. Actual damages were never proven during
the trial. Hence, this Court's rulings74 on temperate damages apply, thus:

In People vs. Abrazaldo,75 we laid down the doctrine that where the amount of actual damages for funeral
expenses cannot be determined because of the absence of receipts to prove them, temperate damages may be
awarded in the amount of ₱25,00076 This doctrine specifically refers to a situation where no evidence at all of
funeral expenses was presented in the trial court. However, in instances where actual expenses amounting to
less than ₱25,000 are proved during the trial, as in the case at bar, we apply the ruling in the more recent case
of People vs. Villanueva77which modified the Abrazaldo doctrine. In Villanueva, we held that "when actual
damages proven by receipts during the trial amount to less than ₱25,000, the award of temperate damages for
₱25,000 is justified in lieu of the actual damages of a lesser amount." To rule otherwise would be anomalous and
unfair because the victim’s heirs who tried but succeeded in proving actual damages of an amount less than
₱25,000 would be in a worse situation than those who might have presented no receipts at all but would now be
entitled to ₱25,000 temperate damages.78

WHEREFORE, the Decision dated June 29, 2007 of the Court of Appeals is
hereby AFFIRMED with MODIFICATION. Appellant Marlon Albert de Leon y Homo is hereby found guilty beyond
reasonable doubt of the crime of Robbery with Homicide, the penalty of which, is reclusion perpetua in view of
the absence of any mitigating or aggravating circumstance. Appellant is also liable to pay the heirs of the victim,
₱25,000.00 as temperate damages, in addition to the other civil indemnities and damages adjudged by the
Regional Trial Court, Branch 76, San Mateo, Rizal.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

EN BANC
G.R. Nos. 142919 and 143876 February 4, 2003
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARDO NAPALIT y PARAL,
DECISION
CARPIO-MORALES, J.:
Before this Court on automatic review is the consolidated decision1 rendered by the Regional Trial Court of
Manila, Branch 18, in Criminal Case Nos. 96-150264 and 97-156381 finding accused-appellant Ricardo Napalit
guilty of robbery with homicide and violation of R. A. 6539 (the Anti-Carnapping Act), respectively.
In Criminal Case No. 96-150264, the Information2 charges
accused-appellant with robbery in band with homicide
defined and penalized under Article 294 (as amended by R. A. 7659) and Article 296 of the Revised Penal Code
allegedly committed as follows:
"That on or about April 3, 1996, in the City of Manila, Philippines, the said accused, conspiring and confederating
with others, whose true names, real identities and present whereabouts are still unknown and helping one
another, did then and there wilfully, unlawfully and feloniously, all armed with unknown caliber firearms, with
intent of (sic) gain and by means of force, violence and intimidation, to wit: by then and there barging inside
Tondo General Hospital located at Honorio Lopez Blvd., Tondo, announcing a hold-up, ordering the
people/employees thereat to lie down on the floor, grabbing the cashier and ordering him to open the vault and
filing cabinets and once opened, take, rob and carry away the following, to wit:
cash money consisting of union’s collection, professional fees, patients’ fees, cash advances and salaries of
employees
amounting to, more or less --- P1,300,000.00
two (2) .38 caliber revolver, Squires Bingham with Serial Nos. 1093998 (from Benjamin
Saclolo) and 1093986 (from Eric Santos) valued at --- P10,353.00
one (1) .38 caliber revolver, Squires Bingham with Serial No. 1094407 more or less
valued at --- P 5,000.00
all valued in the amount of more than P1,315,353.00, belonging to Tondo General Hospital, represented herein
by Rodrigo Calonzo y Sauza and Benjamin Saclolo and Eric Santos, against their will, to the damage and prejudice
of the said owners, in the aforesaid amount of more than P1,315,353.00, Philippine Currency; that said accused,
on the occasion and by reason of said robbery, attacked, assaulted and used personal violence upon one Pio
Gomez y Ora, one of the security guards therein, by then and there fring (sic) two successive shots, hitting him at
the back, thereby inflicting upon him mortal gunshots (sic) wounds which were the direct and immediate cause
of his death thereafter. (Emphasis supplied)
In Criminal Case No. 97-156381, the Information3 charges accused-appellant with violation of the Anti-
Carnapping Act allegedly committed as follows:
That on or about April 3, 1996, 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 wilfully, unlawfully and feloniously with intent to gain, forcibly take and carry away or carnap
two (2) motor vehicles, more particularly described as follows:
One (1) Unit, Toyota Tamaraw FX, BGC Taxi with Plate No. NYU-381 and
One (1) Unit, Toyota Tamaraw Delivery Van with Plate No. PBM-990
valued at P400,000.00 more or less from the drivers Felix Buenaobra y Bumaba and Nomeriano Castor y Serbo,
respectively, without their consent, to the damage and prejudice of the drivers/owners thereof in the aforesaid
amount of P400,000.00, Philippine currency.
Upon arraignment, accused-appellant pleaded not guilty to both charges. Joint trial of the cases thereupon
ensued.
From the evidence for the prosecution, the following facts are established:
At about 4:00 p. m. of April 3, 1996, a group of more than six armed men including accused-appellant barged
into the Tondo General Hospital in Honorio Lopez Boulevard, Balut, Tondo, Manila.
Security guard Eric Santos who was posted at the hospital emergency room had just finished talking to a person
who was asking about the location of the x-ray room when one of the armed men pointed a gun at him,
announced that there was a holdup, and instructed him to keep still as he took his firearm. 4 Simultaneously,
accused-appellant pointed a gun at, and grabbed the firearm5 of, another security guard, Benjamin Saclolo, who
was seated in front of a desk at the emergency room.
Santos grappled with his assailant for the possession of the latter’s gun in the course of which Santos’ other
firearm, a service revolver, was accidentally pulled out of its holster, resulting to a gunshot. This caught the
attention of accused-appellant who pointed his gun at Santos and warned him that he would shoot him should
he make one false move.6 Santos then pushed his assailant in the direction of accused-appellant, causing the
former to fall at which instant Santos ran but not before he was dispossessed of his service revolver.
In the meantime, about 20 meters away7 , four members of the group entered the cashier’s office of the hospital
and ordered the employees to lie down on the floor. One of them pointed a gun at cashier Rodrigo Alonzo and
ordered him to open the vault.8 Before Alonzo could do as instructed, he was searched for weapons in the course
of which his wallet containing ₱450.00 in cash was taken. Alonzo then opened the vault which the four emptied
of ₱1,010,274.90 in cash.9
While the four malefactors were at the cashier’s office, another security guard, Pio Gomez who was manning the
hospital gate and conversing with maintenance plumber Cesar Rosella, was disarmed of his service pistol, pushed
outside the hospital premises, and shot twice by one of the armed men.10
The four armed men who emptied the vault then rushed out of the hospital and one of them also shot Gomez
who had by then collapsed on the ground.11 Two of them headed toward a Toyota Tamaraw vehicle driven by
Numeriano Castor which was on a stop position, due to heavy traffic, in front of the hospital at San Rafael Street.
One of the duo ordered the passenger at the front seat to get off the vehicle. The other, after forcing Castor to
alight from the vehicle, drove it and fled with his companion.
That same afternoon of April 3, 1996, at around 6:00 o’clock, the vehicle, valued at ₱300,000.00, was found
abandoned somewhere in Manila and was brought back to the hospital by police authorities. 12
More than a month and three weeks after the heist, or on May 27, 1996, accused-appellant was arrested by
police authorities. At the Western Police District, Ermita, Manila, he was positively identified in a police line-up
by the hospital security guards Santos and Saclolo as one of the two armed men who announced a holdup and
took their firearms at the emergency room of the hospital on the afternoon of April 3, 1996. Santos and Saclolo
thereupon executed sworn statements.13
On June 8, 1996, security guard Gomez who sustained four gunshot wounds14 expired. The findings on the
autopsy conducted on his body by Dr. Juan Garcia of the Tondo Medical Center were incorporated in a medico-
legal certificate.15
For the hospitalization and medical expenses of Gomez, his family incurred ₱70,000.00.16 And for funeral and
miscellaneous expenses, the amount of ₱48,000.0017 was incurred.
As for the defense, lone witness accused-appellant came up with an alibi. He claimed that between 3:00 p. m.
and 4:00 p. m. of April 3, 1996, he and his wife were at Balic-balic, Sampaloc, Manila looking for a house to rent,
and they returned home at about 7:00 p. m., thus rendering it impossible for him to be present at the scene of
the crime.18
Discrediting accused-appellant’s alibi in favor of his positive identification by security guards Santos and Saclolo
as one of the malefactors, the trial court convicted him of robbery with homicide in the first case and carnapping
in the second in its Decision of April 25, 2000 on review, the dispositive portion of which reads:
WHEREFORE, in Criminal Case No. 96-150264, the court finds accused Ricardo Napalit y Paral guilty beyond
reasonable doubt of the crime of robbery with homicide with the attendant aggravating circumstance of the
offense having been committed by an organized/syndicated crime group of which the accused belongs, and
sentences him to suffer the penalty of death by lethal injection and to pay the costs.
On the civil liability of the accused, the court further sentences him to pay Evelyn Gomez, widow of the slain
security guard, Pio Gomez, actual and moral damages in the respective sums of P118,000.00 and P300,000.00,
and indemnity for the loss of life of the victim in the sum of P50,000.00, with interest thereon at the legal rate of
6% per annum from this date until fully paid.
In Criminal Case No. 97-156381, the court likewise, finds accused Ricardo Napalit y Paral guilty beyond
reasonable doubt of the crime of Violation of R.A. 6539, or carnapping, and sentences him to suffer
imprisonment of 25 years and to pay the costs.19
In his brief, accused-appellant ascribes the following errors to the trial court:
I. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME CHARGED.
II. EVEN GRANTING THAT ACCUSED-APPELLANT WAS A CO-CONSPIRATOR IN THE PLAN TO COMMIT
ROBBERY, THE TRIAL COURT, NONETHELESS, ERRED IN ATTRIBUTING TO HIM AND HOLDING HIM
LIABLE FOR THE CRIME OF HOMICIDE WHICH HAPPENED ON THE OCCASION OF THE ROBBERY. 20
On the first assigned error, accused-appellant maintains that his identification by Santos and Saclolo as one of
the more than six armed men during the incident was not established with moral certainty for, so he argues, said
witnesses were at the time of the robbery fraught with fear and nervousness. To buttress his claim, accused-
appellant draws attention to Santos’ failure to hear the gunshot which first hit Gomez when he (Santos) was
struggling with his assailant for the possession of the latter’s gun, which failure, accused-appellant alleges,
prevented Santos from taking a clear look at the armed man attending to Saclolo, identified as accused-
appellant, since his (Santos’) attention was fully focused on his assailant.
Accused-appellant readily admits, however, that both Santos and Saclolo were credible, conceding that their
respective testimonies were straightforward and consistent insofar as their recollection of the disarming incident
is concerned.21
When the issue of credibility is involved, appellate courts generally do not disturb the findings of the trial court
since the latter is in a better position to pass on it, having heard the witnesses themselves and observed their
deportment and manner of testifying, unless it is shown that it overlooked certain facts or circumstances of
substance that, if considered, could affect the outcome of the case.22
In the case at bar, the trial court found the testimony of witnesses Santos and Saclolo to be worthy of credence.
From the transcripts of the stenographic notes of their testimonies, this Court finds that, indeed, they merit
credence. They are straightforward and consistent. Consider the following answers of Santos, quoted verbatim:
Q: On April 3, 1996, at about 4:05 p.m., while you are manning the emergency room of the Tondo
General Hospital, do you recall of any unusual incident that took place?
A: At around 4:00 p.m. that date, while I was talking to a person who was asking about the location of A: Because he was the one that disarmed my cosecurity guard and later on poked a gun at me and
the x-ray room, someone pointed a gun at me and told me not to move and that it was a holdup, and when he disarmed my co-security guard, I saw him at a close distance and when he poked his gun at
he took my firearm. me, we were very near each other and I could see his face. 23 (Emphasis supplied)

Q: What else happened after that man poked a gun at you and took your firearm? The positive identification of accused-appellant was corroborated by Saclolo in his answers,
quoted verbatim:
A: When I raised up my hand, I look at the direction where my co-security guard was and I noticed that
he was also disarmed by a companion of the man who poked a gun at me and when the man that Q: Were you able to identify the person who poked his 45 caliver firearm at you?
disarmed the other security guard was leaving the premises, I noticed that the man poking a gun at me
was nervous because his gun was shaking and because of this observation and considering that my co- A: Yes, sir.
security guard was nearby, I was emboldened to grab the gun that was being poked at me so I grappled
with the man that was poking a gun at me by grabbing the gun. While I was holding the arm of the
Q: Look around and tell the court if he is inside the court room?
robber, I held with my left arm the gun in my holster because he was trying to grab it and there was a
struggle between us and in the course of our struggle, my gun fired after it was accidentally pulled out
from its holster. A: Yes, sir. (At this juncture, witness is pointing to a man who answered by the name Ricardo
Napalit)
Q: What happened after that?
xxx
A: The gunshot caught the attention of that man who disarmed my co-security guard and he came back
and poked a gun in front of my face and warned me that should I make a false move, he would shoot Q: You also testified that one of the robbers poked his gun at your back and you identified him as the
me. accused in this case, is that correct?

Q: What happened next after that? A: He did not poke his gun at my back, he was in front of me because I was sitted at the table.

A: I pushed the man with whom I was struggling with towards the man who was poking a gun at me Q: What was your position at the time of the incident, before the gun poking?
and the two of them fell down on the ground and I ran away but in the process, they were able to grab
and get hold of my service revolver. A: I was sitted on a chair in front of a table.

Q: Were you able to identify that person who initially poked a gun at you? Q: Were you facing the door or you are at the back of the door?

A: I recognized him and if I will see him again, I will be able to recognize him. A: The entrance to the emergency room was in front of me.

Q: How about the other person who divested the gun of your co-security guard and your gun also, Q: You also mentioned that you also saw the gun of the alleged robber?
can you recognize him?
A: When they entered the emergency room, I did not see the gun. It was only when my service pistol
A: Yes, sir. was taken by one of them that I saw the robbers.

Q: Will you please look around and point to him? Q: How far were you from the robber that approached you?

At this juncture, witness is pointing to a man who answered by the name Ricardo Napalit. At this juncture, witness is pointing to a distance of about 2 and one-half feet.

Q: Why do you say that he was the same person who divested your gun and the gun of your co- Q: While you were sitted, was the alleged robber in front of you standing?
security guard?
A: He was standing in front of me.
 Q: How did you see him, did you see space or did you peep?
A: I looked up at his face.24 (Emphasis supplied).
From the foregoing testimonies, it is clear that Santos and Saclolo saw accused-appellant at close range as he
stood before them at the time of the taking of their firearms. It bears noting that the incident occurred in broad
daylight. When conditions of visibility are favorable and the witnesses do not appear to be biased, their
assertions as to the identity of the malefactor should be accepted as trustworthy.25
That witnesses to a sudden attack may be frightened or nervous as a result thereof does not fatally impair the
credibility of their testimony, especially with respect to the identification of their assailant, for they tend to strive
to see his appearance and observe the manner in which the crime is being committed. 26 In the case at bar, there
is no evidence to show that Santos and Saclolo were so petrified with fear as to result in subnormal sensory
functions on their part.27
Accused-appellant’s bare assertion of alibi thus deserves no merit. Already a weak defense, his alibi becomes
even weaker by reason of his failure to present any corroboration.28
Accused-appellant argues nevertheless that assuming that he had indeed participated in the incident, he should
only be held liable for robbery and not for the special complex crime of robbery with homicide. For, so he claims,
the shooting of Gomez by his companions was beyond his contemplation and he never intended to perpetrate
any killing, hence, only the actual perpetrators of the killing should be held liable therefor and the killing should
not be appreciated to increase his liability.29 And he adds that his carrying of a firearm was only for the purpose
of threatening the victims so that they would not offer any resistance to him and his companions.
Accused-appellant’s arguments do not persuade. Article 294 (1) of the Revised Penal Code, as amended by R.A.
7659, provides:
Article 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, or when the robbery shall have been accompanied by rape or intentional
mutilation or arson.
x x x (Emphasis supplied.)
In robbery with homicide cases, the prosecution needs to prove these elements: (a) the taking of personal
property is perpetrated by means of violence or intimidation against a person; (b) the property taken belongs to
another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the
robbery or by reason thereof, the crime of homicide, here used in its generic sense, is committed. 30
In a long line of cases, this Court has ruled that whenever homicide is committed as a consequence or on the
occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals
in the special complex crime of robbery with homicide although they did not take part in the homicide, unless it
is clearly shown that they endeavored to prevent the homicide.31
Direct proof of a previous agreement to commit a crime is not indispensable in conspiracy. It may be deduced
from the mode and manner by which the offense was perpetrated, or inferred from the acts of the accused
themselves, when such point to a joint purpose and design, concerted action and community of interest.32
From the time accused-appellant and his companions entered the hospital and announced a holdup up to the
time they fled, in the course of which security guard Gomez was shot, there can be no other conclusion than that
they hatched a criminal scheme, synchronized their acts for unity in its execution, and aided each other for its
consummation.
As correctly pointed out by the trial court, the united, concerted and coordinated contemporaneous acts of
accused-appellant and his companions in marauding the hospital, neutralizing its security guards and robbing it
of ₱1,010,274.90 unerringly indicate a well-planned robbery operation and a conspiracy among them.33
As conspiracy has been established, all the conspirators are liable as co-principals regardless of the manner and
extent of their participation since, in conspiracy, the act of one is the act of all.34
That accused-appellant did not shoot Gomez is immaterial. Article 294 (1) of the Revised Penal Code is clear and
leaves no room for any other interpretation. For, for robbery with homicide to exist, it is sufficient that a
homicide results by reason or on the occasion of robbery.35 The law of course exculpates a person who takes
part in the robbery from the special complex crime of robbery with homicide and punishes him only for simple
robbery when there is proof that he tried to prevent the homicide. No such proof, however, was offered.
As an appeal in a criminal proceeding throws the whole case open for review, it becomes the duty of this Court
to correct errors it may find in the appealed judgment even if they have not been specifically assigned.36
One such error committed by the trial court which was not assigned by accused-appellant is its appreciation of
the aggravating circumstance of the offense being committed by a person belonging to an organized or
syndicated crime group under Article 62 of the Revised Penal Code, as amended by R.A. 7659.
While accused-appellant and company confederated and mutually helped one another for the purpose of
gain, that they formed part of a group organized for the general purpose of committing crimes for gain, which
is the essence of a syndicated or organized crime group,37 was neither alleged nor proved.
There being then no aggravating circumstance to be appreciated, the proper imposable penalty for the
commission of the crime of robbery with homicide is reclusion perpetua, following Article 63 (2) of the Revised
Penal Code which states that when there are neither mitigating nor aggravating circumstances in the commission
of the deed, the lesser penalty shall be applied.
And the trial court erred too in finding accused-appellant guilty of the Anti-Carnapping Act. Carnapping, as
defined under Section 2, paragraph 2 of this special law, is the taking, with intent to gain, of a motor vehicle
belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or
by use of force upon things. The elements of carnapping are thus: (a) the taking of a motor vehicle which belongs
to another; (b) the taking is without the consent of the owner or by means of violence against or intimidation of
persons or by using force upon things; (c) the taking is done with intent to gain.38
From the following testimony of the Toyota Tamaraw driver Castor:
 Q: You said that armed men arrived, more or less, how many armed men did you see?
A: There were two armed men who approached my vehicle. One went to my passenger’s seat and the
other one to the driver’s seat.
Q: What did the armed person who go (sic) to the passenger’s seat do?
A: He ordered my passenger to get off and he even hit my passenger with his gun.
Q: What about that armed person who went to your side, what did he do to you?
A: He forced me to get off the vehicle and he took over the driver’s seat.
Q: Were you able to identify these two armed men who took you (sic) vehicle?
A: If I see them again, I can recognize them.
Q: Will you please look inside the court room and tell us if these two armed men who forcibly took
your vehicle are inside the court room?
A: They are not inside the court room, sir.
Q: Aside from these two armed men who forcibly took your vehicle, did you see any other armed men
also in the vicinity?
A: No one else, sir,39
it is clear that accused-appellant took no part in seizing the vehicle. Since there is no showing that the taking was
made in pursuance of the common criminal plan of the malefactors to rob the hospital, the two armed robbers
who took the vehicle having merely chanced upon it while they were fleeing from the scene of the crime,
accused-appellant cannot be faulted therefor. Well-settled is the rule that co-conspirators are liable only for acts
done pursuant to the conspiracy, not for other acts done outside their contemplation or which are not the
necessary and logical consequence of the intended crime.40
As to the civil aspect of the case, for loss of earning capacity, Article 2206 (1) of the Civil Code is the applicable
law. It provides:
Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be
paid to heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the
deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at
the time of his death.
Accused-appellant is thus liable for damages for the loss of the earning capacity of the deceased Pio Gomez
which shall be paid to his heirs. In fixing the indemnity, account is taken of the victim’s actual income at the time
of his death and his probable life expectancy41 in accordance with the formula adopted by this Court, to wit:
Net earning capacity = 2/3 x (80-age of x a reasonable portion the victim at the of the annual net time of his
death) income which would have been received by the heirs for support42
At the time of his death, Gomez was 48 years old.43 Per the certification of employment and
compensation44presented at the trial court, his average monthly gross income was ₱5,383.12 or an annual gross
income of ₱64,597.44. In the absence of proof of his living expenses, his net income is deemed to be 50 percent
of his gross income.45 Using the above-stated formula, the indemnity for the loss of earning capacity of Gomez is
₱688,931.70, arrived at as follows:
2(80-48)
Net earning capacity = x [₱64,597.44 - ₱32,298.72]
3
2 (32)
= x ₱32,298.72
3
= 21.33 x ₱32,298.72
= ₱688,931.70
With respect to the award by the trial court of ₱200,000.00 in moral damages, in line with prevailing
jurisprudence46 , it is hereby reduced to ₱50,000.00.
As for the award of actual damages in the amount of ₱118,000.00, since it is borne out by the records, it is
affirmed and so is the award of civil indemnity in the amount of ₱50,000.00.
WHEREFORE, the decision of the trial court in Criminal Case No. 96-150264 finding accused-appellant, Ricardo
Napalit y Paral, guilty beyond reasonable doubt of the special complex crime of robbery with homicide is hereby
AFFIRMED with MODIFICATION. As modified, accused-appellant is hereby sentenced to suffer the penalty
of reclusion perpetua; and to pay the legal heirs of Pio Gomez ₱118,000.00 for actual damages, ₱50,000.00 as
indemnity for death, ₱688,931.70 for lost earnings, and ₱50,000.00 for moral damages.
The conviction of accused-appellant Ricardo Napalit y Paral in Criminal Case No. 97-156381 for violation of R. A.
6539 or the Anti-Carnapping Law is REVERSED and SET ASIDE and he is hereby ACQUITTED for insufficiency of
evidence.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Callejo, Sr., and Azcuna, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 104285-86 May 21, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICTOR ANGELES Y RAMOS, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo Y. Sarmiento for accused-appellant.
FELICIANO, J.:
Victor Angeles appeals from a decision of the Regional Trial Court ("RTC") of Manila, Branch 25, convicting him of
two (2) separate offenses: one of rape and the other of robbery against Analie Baltazar.
Angeles was charged with rape in a complaint filed by Analie Baltazar dated 28 February 1989; he was also
accused of robbery in an inhabited place in an information filed by Assistant Prosecutor Eufrocino A. Sulla, also
dated 28 February 1989. These two (2) documents read as follows:
That on or about February 24, 1989, in the City of Manila, Philippines, the said accused did
then and there wilfully, unlawfully and feloniously, by means of force, violence and
intimidation, to wit: by poking an ice pick against her person, dragging her outside the house
and bringing her to the Three Bird Lodge located at Sales St., Sta. Cruz, in said City,
threatening to kill her should she resist and accused succeed (sic) in having carnal knowledge
of the undersigned complainant, against her will and consent.1
xxx xxx xxx
That on or about February 24, 1989, in the City of Manila, Philippines, the said accused,
conspiring and confederating with two others whose true names, identities and present
whereabouts are still unknown and helping one another, did then and there, wilfully,
unlawfully and feloniously break into and enter House No. 652 (along) Algeciras St.,
Sampaloc, in said City, which was then occupied as a dwelling place of one ANALIE BALTAZAR
Y CORDON and other members of her family, by destroying the screen of the door of the said
house and by passing through the said door, and once inside, with intent of gain and without
the knowledge and consent of the owner thereof, took, robbed and carried away one (1)
Betamax Sony valued at P10,500.00 and one Typewriter Merit valued at P5,000.00, or all
valued at P15,500.00, belonging to said Analie Baltazar y Cordon to the damage and
prejudice of said owner in the aforesaid sum of P15,500.00, Philippine currency.2
The complaint and information were raffled off to two (2) different branches of the Manila RTC.3 Appellant
Angeles entered a plea of not guilty to the complaint of rape before the Manila RTC, Branch 5, on 19 July
1989.4 A few months earlier, he had pleaded not guilty to the information for robbery before Branch 25 of the
Manila RTC on 10 April 1989.5
In an order dated 13 April 1989, Judge Felix B. Mintu of Branch 5, Manila RTC, upon the ground that the two (2)
criminal cases were "intimately related," ordered that Criminal Case No. 89-70692 (the robbery case) be
consolidated for joint trial with the lower numbered case (the rape case) then pending before his sala.6
Earlier, on 12 April 1989, Angeles filed a motion to quash the rape complaint in Criminal Case No. 89-70961,
upon the ground that the offense there charged was "the same offense" for which he had been arraigned just
two (2) days earlier before Branch 25 of the Manila RTC in Criminal Case No. 89-70962, and that he would be
exposed to "double jeopardy" if he were arraigned anew in Criminal Case No. 89-70961.7
After hearing, Judge Mintu denied the motion to quash holding that two (2) distinct crimes of rape and of
robbery were alleged to have been committed by appellant.8 Appellant moved for reconsideration of that order,
without success.
After joint trial of the rape and robbery cases, appellant was found guilty of both offenses in a decision dated 7
March 1991 of the Manila RTC, the dispositive portion of which states:
WHEREFORE, the prosecution having proven the guilt of the accused VICTOR ANGELES Y
RAMOS beyond reasonable doubt on both cases, sentences him to suffer the penalty of:
Criminal Case No. 89-70961, Rape LIFE IMPRISONMENT and pay as damages complainant
ANALIE BALTAZAR Y CORDON the sum of FIFTEEN THOUSAND (P15,000.00) PESOS; WITH
COST;
Criminal Case No. 89-70962, Robbery LIFE IMPRISONMENT, the stolen articles being not
recovered, to pay as damages complainant ANALIE BALTAZAR Y CORDON the sum of FIFTEEN
THOUSAND PESOS (P15,000.00) PESOS; WITH COST.9
The basic facts as found and set out by the trial court in its decision are as follows:
Analie Baltazar testified that on or about 1:30 in the morning of February 24, 1989, while she
was sleeping at the sala of the second floor of their house in Ageceria (sic) Street, Sampaloc,
Manila, she woke up to urinate. When she stood up, a person behind held and poked an
icepick on her neck. According to her, she begged not to be killed; that she was dragged
towards the rear door of their house. Aside from the person who dragged her, she also saw
two persons on the ground floor carrying their typewriter and Sony Super betamax. The
typewriter, according to her cost about P10,000.00 to P11,000.00. She was dragged by the
 man at the railroad track towards Fermesa Street, (then) to de la Fuente Street, where she
was made to board the (sic) taxi and brought to Dakota (St.) at Recto Avenue. That while she
was being dragged by the person, whom she later identified as the accused Victor Angeles,
the two other companions of the accused were on (sic) their back. According to her, the two
persons placed themselves on (sic) a dark place and she was told not to shout. That
everytime she talked with a loud voice, she was being (sic) slapped. Later, the two
companions of the accused left. Accused Angeles, while still poking the ice pick on her neck,
covered by the blanket she was carrying then, brought her to the Three Bird Lodge Motel, a
few steps from Dakota Recto going towards Evangelista Street, Quiapo, Manila. At the Three
Bird Lodge, accused Angeles talked with the roomboy while at that time the ice pick was still
poked at her. She was brought to a room, where accused removed her t-shirt, short and
underwear. Later, she was made to lie down on the bed and the accused removed also (sic)
his clothes. The room, according to her, was well-lighted. The accused, after removing his
clothes, started to kiss her on her neck, to her bust and her private parts. That the accused
forced his penis to enter her private parts. That the penis, according to her, penetrated
lightly on her private parts and thereafter, she was told to dress up and let (sic) her go home.
The following day, the accused was again seen in complainant Analie's neighborhood. The
accused, according to her, was even rubbing his shoes on the ground and looking at the
direction of their house. She immediately informed her father about the presence of the
accused. Her father, according to her, immediately went to the place where then accused
was, but accused has (sic) already left and thus, was able that time to escape the wrath of
her father. On February 26, 1989, at about 10:00 o'clock in the morning, again (sic),
complainant Analie saw the accused in front of their house. She immediately pointed the
accused to her father, who in turn went down the house and confronted the accused. While
talking, her father gave the accused a fist blow and the people in the neighborhood chased
the accused. After a brief chase, the accused was apprehended and mauled by her neighbors.
Later, the accused was brought to the police station and charged for the present crime.
Dr. Marcial Cenido, Medico-Legal Officer, Western Police District, testified that he made a
physical and genital examination on the person of Analie Baltazar y Cordon, thru the request
of Lt. Generoso Javier, Western Police District, and found her hymen with deep healing
laceration at 6:00 o'clock position extending to the base at the forchette right of midline and
slightly bled upon examination, Exhibit "3" (sic). Its cause, according to him, was entry of a
penis inside it.10
Appellant submitted a different story to the trial court, which summed up his story in the following terms:
Accused Victor Angeles denied emphatically the accusation against him. According to him, on
February 23, 1989, at 9:00 in the evening, he was at his house asleep. he woke up at 6:30 in
the morning of February 24, 1989. On said date, he was with his mother Isabel Ramos. The
mother of the accused, Isabel Ramos Angeles, collaborated (sic) the testimony of the accused
that on the night of February 24, 1989, the accused was in his house asleep. He claimed that
on February 26, 1989, he was looking for Ree, a fellow electrician near complainant Analie's
house. After a brief talk with Analie's father, about the robbery being committed in the
neighborhood, the people in the neighborhood suddenly attacked him. He ran away, but
after a brief chase, was apprehended, and mauled and later brought to the police precinct.
Later, he was examined by Dr. Marcial Cenido, WPD Medico Legal Officer. Dr. Cenido
admitted having examined the accused, but aside from having found scally wounds on the
person of the accused, he did not elaborate on any injury suffered by the accused.11
In this appeal, Victor Angeles claims that:
1. The trial court erred in not holding that the arraignment of the accused-appellant in
Criminal case No. 89-70962, for robbery, bars the second prosecution of the same accused-
appellant in Criminal Case No. 89-70961, for rape.
2. The trial court erred in not holding that the testimony of the accused-appellant is more
credible and logical than the testimony of Analie Baltazar.
3. The trial court erred in not acquitting the accused-
appellant.12
Two (2) principal issues are posed for the Court's consideration in this case: firstly, whether or not the trial court
erred in holding that two (2) separate felonies of robbery and rape had been committed by appellant; and
secondly, whether the trial court had erred in believing the testimony of Analie Baltazar to the effect that
appellant Angeles had raped her.
In respect of the first issue, we note preliminarily that appellant's argument that the prosecution for rape was
barred by appellant's prosecution and arraignment for robbery, under the doctrine of "double jeopardy," is
bereft of merit. That doctrine, in general, prohibits a second prosecution for the same offense as that charged in
the first prosecution. In the case at bar, robbery and rape cannot properly be considered the same offense;
neither is one included in the other. What appellant was apparently trying to say was that he was properly
chargeable, not for two (2) separate offenses of robbery and rape, but rather of the special complex crime of
"robbery with rape." In other words, appellant was probably trying to say that the charge for robbery should
have been a charge for "robbery with rape" such that separate complaint for rape was, at least partially, a
duplication of the first charge. Thus, the real issue is whether he was properly charged with and found guilty of
two (2) separate offenses, or whether he should have been charged instead with "robbery with rape." In either
case, of course, the prosecution must show the presence of all the elements of the crime of robbery, as well as
all the elements of the crime of rape.
This issue, however, is not an entirely academic one. In its practical consequences, it relates to whether only one
penalty should have been imposed upon appellant under Article 294, paragraph 2 of the Revised Penal Code; or
whether two (2) penalties are appropriately imposable upon appellant, one for robbery in an inhabited house
under Article 299 of the Revised Penal Code and another for rape under Article 335 of the Revised Penal Code as
amended.
Appellant contends that the case at bar is controlled by U.S. v.
Tiongco,13 where the Court held that the offense committed was the special complex crime of robbery with rape.
Appellant cites the following passages from U.S. v. Tiongco :
xxx xxx xxx
 After the robbers had seized such things as they wished to carry off and when ready to go
out, they took the three women below blindfolded. The band then headed fro the river near
by to embark in the banca in which they had come. When they left the house, Cristeto
Ledesma and Narciso Castano compelled two of the women, Juaneza and Eusula, to
accompany them, and while the band was on its way to the banca these two men separated
from the rest, took these two women with them to a place near a marsh not far from the
river bank, and there raped them, employing force and intimidation to accomplish their
purpose. Cristeto Ledesma raped Rosario Juaneza, and Narciso Castano, Nieves Eusula, after
which Cristeto and Narciso went to the banca, where the other robbers were waiting for
them, and all left.
xxx xxx xxx
As the crime of the robbery, with that of rape of said two women — a crime against chastity
committed on the occasion of the robbery — was perpetrated by the malefactors in the said
house of Catalino Balinon, both crimes should be punished as one single complex crime, as
defined and qualified by paragraph 2 of article 503 of the Penal Code; for, besides the
robbers seizing the money and the other effects they found in said house, two of them
sullied the honor of the two women therein, and the companions of the two men who
committed the rape made no opposition nor prevented these latter from consummating this
other crime, apparently unconnected with and unrelated to that robbery, but which, as well
as sanguinary crimes, is often committed on such occasions, and it is for this reason that the
penal law, in odium of such offenses against property and chastity, has considered them
complex and punished them by one single penalty.14 (Emphasis supplied)
Close examination of the facts in Tiongco and of the facts in the case at bar lead us to believe that Tiongco does
not control the case at bar. In the case at bar, the robbery carried out in the house where Analie Baltazar and her
parents lived was consummated and completed; the taking of the goods from the house was completed and the
three (3) robbers (including appellant Angeles) walked from Algeciras Street, Sampaloc, down the railroad track
towards Fermesa street and then to Dela Fuente Street where they boarded a taxi which brought them to Recto
Avenue. At Recto Avenue, the three (3) men and the victim Analie Baltazar got off the taxi and the two (2) co-
felons of Angeles left and went their own way while appellant Angeles proceeded to a motel located in Dakota
Street not far away from recto Avenue in the direction of Quiapo District.15 The acts constitutive of the robbery
at the house of the Baltazars and the acts comprising the rape inflicted upon Analie Baltazar were separated
both by time and space. The conspiracy between the three (3) malefactors clearly covering the robbery had
come to an end with the departure of two (2) of the conspirators. The rape was carried out after the completion
of the robbery and after the break up of the malefactors. The situs of the rape was far away from the situs of the
robbery. We believe and so hold that under the circumstances of this case, appellant Angeles was properly
charged with two (2) distinct offenses of robbery and of rape, rather than with the special complex crime of
robbery with rape under Article 294, paragraph 2 of the Revised Penal Code. Conceptually, the robbery had not
been "accompanied by rape," neither was the rape committed "by reason or on [the] occasion of such robbery;"
rather, the robbery and the rape were committed successively or in sequence.
Appellant's next contention is that in respect of the conviction of rape, the trial court erred in finding Analie
Baltazar to be a credible witness and that the trial court had misapprehended two (2) important facts of record
which indicated that her testimony was incredible in itself. The two (2) facts submitted by appellant are: firstly,
at the motel, Analie had failed to make an outcry which could have attracted intervention on the part of the
roomboy; and secondly, Analie's declaration that appellant Angeles had returned to the vicinity of her family
home a few hours after the robbery, at day break of 24 February 1989, was "highly suspicious" and improbable
for then appellant would have been risking discovery, denunciation and arrest which in fact eventually came
about.16
Once more, the Court is not persuaded. Private complainant's failure to scream for help or otherwise make an
outcry must be evaluated in the context of all the surrounding circumstances of this case. When Analie woke up
at her house after midnight to go to the bathroom, appellant grabbed hold of her and her sleeping blanket and
threatened her with an ice pick on her neck. She was dragged from her family home, across the railroad tracks
and across several streets by the appellant and his two (2) companions. Inside the taxi that the group boarded,
Analie was put bedside the driver, with appellant's arm on her shoulder while appellant and the other two (2)
malefactors were on their rear seat. The taxi driver did not notice that underneath the blanket draped over
Analie's shoulder, appellant's ice pick remained threateningly poised at her. After alighting from the taxi at
Dakota Street, Analie was brought to a dark and unlighted place where the three (3) malefactors slapped her on
the face everytime she tried to raise her voice. At the motel, while talking to the roomboy, appellant continued
to hold the ice pick against her neck or side underneath the blanket.17 Inside the motel room, Analie, 17 years of
age at the time of the trial, did not physically resist being disrobed by appellant Angeles who had placed his ice
pick nearby on top of the lavatory. She laid down on the bed when appellant threatened to kill her. She testified
that she was then already weakened, tired and worn out and feared that she would be stabbed if she struggled
with appellant. Neither could she seek to grab the icepick while appellant was on top of her on the bed, for
appellant held her hands and continue to hold the icepick at her neck.18 This Court has many times held in the
past that rape is committed when intimidation is exercised upon the victim and the latter submits herself,
against her will, to the rapist's embrace because of the fear for life and personal safety.19 The reality of
continuing intimidation used against Analie Baltazar is evident all through the record of this case.
As to appellant's argument that Analie's testimony to the effect that he had returned to the scene of the robbery
was improbable, it may be observed, firstly, that even if it is conceded (and it is not necessary so to concede)
that this portion of Analie's testimony was improbable, that testimony did not relate to the material facts
constitutive of the crime of rape. There is no rule of law which requires a court to disregard the entirety of the
testimony of a witness because a portion thereof may be doubtful.20 Analie declared before the trial court that
she saw the appellant at the vicinity of her house at least three (3) times after the robbery and rape and that she
had immediately informed her father of appellant's appearance.21 On the third occasion, on 26 February 1989,
Analie's father was able to chase down the appellant Angeles and confront him about his daughter's violation. A
false sense of security born out of his having successfully eluded Analie's father twice before, would account for
appellant's imprudent third visit to the scene of the robbery.
Thus, appellant has failed to establish any significant fact which the trial court overlooked or misconstrued and
which would change the result reached by the trial court. This Court is thus bound to affirm the factual
conclusions of the trial court, more particularly on the credit worthiness of Analie's testimony, 22 since the trial
court had the opportunity to observe carefully her demeanor and deportment in court while testifying. 23
Appellant's defense of denial and alibi, it is firmly established doctrine, cannot prevail over the positive
identification made by Analie Baltazar. Analie had expressly and positively stated that it was appellant Angeles
who dragged her from her house in the company of two (2) other men who were carrying away her family's
typewriter and video cassette recorder, and that it was appellant Angeles who had disrobed her at the motel and
then copulated with her, with an icepick poised at her neck or within easy reach of the appellant.24 Finally, when
appellant and his mother declared that appellant was sleeping at the latter's house at Araneta Street, Tatalon
estate, Quezon City, on the evening of 23-24 February 1989,25 the Court notes that this location is only a few
kilometers away from Baltazars' residence at Algeciras Street, Sampaloc, Manila, such that appellant could move
from one location to the other within a short period of time, with public transportation. Appellant's defense of not recovered, to pay complainant ANALIE BALTAZAR Y CORDON, by way of reparation, the
alibi cannot be sustained in view of his failure to show the physical impossibility of his being at the scene of the sum of FIFTEEN THOUSAND (P15,000.00) PESOS; WITH COST.
crime or about the time of the commission thereof.26
As so modified, the decision of the trial court is hereby AFFIRMED. Costs against appellant.
There are, however, two (2) errors on the part of the trial court which need to be addressed. The first error
relates to the penalty properly imposable on appellant for the crime of robbery in Criminal Case No.89-70962. SO ORDERED.
Under Article 299 of the Revised Penal Code, the penalty imposable for robbery in an inhabited place is reclusion
temporal.Taking into account the provisions of the Indeterminate Sentence Law, considering that no modifying
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
circumstances were alleged and proved and exercising the discretion of this Court, the penalty properly
imposable upon appellant Angeles for the robbery is an indeterminate sentence, the minimum of which shall be
eight (8) years and one (1) day of prision mayor and the maximum of which shall be fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal.

The second error relates to the proper characterization of the offense with which appellant was charged and for
which he was convicted in Criminal Case No. 89-70961. Analie had testified before the trial court that while at
the motel, the appellant had told her that he and the other malefactors had been "tipped off that her family
residence contained many appliances and that they had planned to carry away many of them but had changed
their minds." Appellant decided to take her with him because she was "more important to (sic) these
things."27 The information in Criminal Case No. 89-70961 had sufficiently alleged, and the prosecution shown at
the trial, that before Analie was raped, she was taken from her house against her will and with lewd designs.
Taking all these circumstances into account, it is clear to the Court that appellant Angeles committed the
complex crime of forcible abduction with rape, defined and penalized under Article 342 (forcible abduction) and
Article 335 (rape) of the Revised Penal Code in relation to the second clause of Article 48 (complex crimes) of the
same Code. The forcible abduction was, in the circumstances of this case, a necessary means to commit the
rape.28 In the case variance between the caption of the information and the allegations set out in the body
thereof, which allegations sufficiently described the offense(s) and its elements, the latter prevails over the
former.29 Article 48 of the Revised Penal Code provides that in complex crimes, the penalty for the most serious
crime shall be imposed in its maximum period. In the case at bar, the more serious of the two (2) crimes (forcible
abduction and rape) established in Criminal Case No. 89-70961 was rape committed with a deadly weapon (here,
the icepick) which is punishable with reclusion perpetua to death under paragraph 3 of Article 335 of the Revised
Penal code. Since no modifying circumstances were either alleged or proved in Criminal Case No. 89-
70961,30 and considering the non-enforceability of the death penalty, the penalty properly imposable on
appellant is reclusion perpetua. The trial court's reference to "life imprisonment" is, of course, wrong.

In line with recent case law, the indemnity for moral damages awarded to Analie Baltazar in Criminal Case No.
89-70961 should be increased to P30,000.00.31

WHEREFORE, the decision of the trial court dated 7 March 1991 is hereby MODIFIED so as to read as follows:

Criminal Case No. 89-70961, Rape, Reclusion perpetua, and pay as moral damages
complainant ANALIE BALTAZAR Y CORDON the sum of THIRTY THOUSAND (P30,000.00)
PESOS; WITH COSTS.

Criminal Case No. 89-70962, Robbery, Imprisonment for an indeterminate period ranging
from 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, the stolen articles being

EN BANC
G.R. No. 148965 February 26, 2002
JOSE "JINGGOY" E. ESTRADA, petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF THE
OMBUDSMAN,respondents.
DECISION
PUNO, J.:
A law may not be constitutionally infirm but its application to a particular party may be unconstitutional. This is
the submission of the petitioner who invokes the equal protection clause of the Constitution in his bid to be
excluded from the charge of plunder filed against him by the respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then
President of the Republic of the Philippines, five criminal complaints against the former President and members
of his family, his associates, friends and conspirators were filed with the respondent Office of the Ombudsman.
On April 4, 2001, the respondent Ombudsman issued a Joint Resolution1 finding probable cause warranting the
filing with the Sandiganbayan of several criminal Informations against the former President and the other
respondents therein. One of the Informations was for the crime of plunder under Republic Act No. 7080 and
among the respondents was herein petitioner Jose "Jinggoy" Estrada, then mayor of San Juan, Metro Manila.
The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was
assigned to respondent Third Division of the Sandiganbayan. The arraignment of the accused was set on July 10,
2001 and no bail for petitioner’s provisional liberty was fixed.
On April 24, 2001, petitioner filed a "Motion to Quash or Suspend" the Amended Information on the ground that
the Anti-Plunder Law, R.A. No. 7080, is unconstitutional and that it charged more than one offense. Respondent
Ombudsman opposed the motion.
On April 25, 2001, the respondent court issued a warrant of arrest for petitioner and his co-accused. On its basis,
petitioner and his co-accused were placed in custody of the law.
On April 30, 2001, petitioner filed a "Very Urgent Omnibus Motion"2 alleging that: (1) no probable cause exists to
put him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal
gambling and not in a "series or combination of overt or criminal acts" as required in R.A. No. 7080; and (2) he is
entitled to bail as a matter of right. Petitioner prayed that he be excluded from the Amended Information and be
discharged from custody. In the alternative, petitioner also prayed that he be allowed to post bail in an amount
to be fixed by respondent court.3
On June 28, 2001, petitioner filed a "Motion to Resolve Mayor Jose ‘Jinggoy’ Estrada’s Motion To Fix Bail On
Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The
Information Do Not Make Out A Non-Bailable Offense As To Him."4
On July 3, 2001, petitioner filed a "Motion to Strike Out So-Called ‘Entry of Appearance,’ To Direct Ombudsman
To Explain Why He Attributes Impropriety To The Defense And To Resolve Pending Incidents."5
On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioner’s "Motion to Quash and
Suspend" and "Very Urgent Omnibus Motion."6 Petitioner’s alternative prayer to post bail was set for hearing
after arraignment of all accused. The court held:
"WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following: (1) MOTION TO
QUASH AND SUSPEND dated April 24, 2001 filed by accused Jose ‘Jinggoy’ Estrada; (2) MOTION TO QUASH dated
June 7, 2001 filed by accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended Information
dated 18 April 2001) dated June 26, 2001 filed by accused Edward S. Serapio.
Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose ‘Jinggoy’ Estrada, his VERY
URGENT OMNIBUS MOTION, praying that he be: (1) dropped from the information for plunder for want of
probable cause and (2) discharged from custody immediately which is based on the same grounds mentioned in
this MOTION TO QUASH AND SUSPEND is hereby DENIED. Let his alternative prayer in said OMNIBUS MOTION
that he be allowed to post bail be SET for hearing together with the petition for bail of accused Edward S. Serapio
scheduled for July 10, 2001, at 2:00 o’clock in the afternoon after the arraignment of all the accused."7
The following day, July 10, 2001, petitioner moved for reconsideration of the Resolution. Respondent court
denied the motion and proceeded to arraign petitioner. Petitioner refused to make his plea prompting
respondent court to enter a plea of "not guilty" for him.8
Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess of jurisdiction
or with grave abuse of discretion amounting to lack of jurisdiction in:
"1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to petitioner, and
denying him the equal protection of the laws;
2) not holding that the Plunder Law does not provide complete and sufficient standards;
 3) sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with
which and with whom he is not even remotely connected - contrary to the dictum that criminal liability
is personal, not vicarious - results in the denial of substantive due process;
4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the information
which amounts to cruel and unusual punishment totally in defiance of the principle of
proportionality."9
We shall resolve the arguments of petitioner in seriatim.
I.
Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and denies him the
equal protection of the laws.10
The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the Anti-Plunder Law, has
been settled in the case of Estrada v. Sandiganbayan.11 We take off from the Amended Information which
charged petitioner, together with former President Joseph E. Estrada, Atty. Edward Serapio, Charlie "Atong" Ang,
Yolanda T. Ricaforte and others, with the crime of plunder as follows:
"AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. "ASIONG SALONGA" AND a.k.a "JOSE
VELARDE", together with Jose ‘Jinggoy’ Estrada, Charlie ‘Atong’ Ang, Edward Serapio, Yolanda T. Ricaforte,
Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and
John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by
Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACYwith his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there wilfully, unlawfully
and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or
less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE
FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR
LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY
FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE
‘ATONG’ ANG, Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte, Edward Serapio, AN (sic) JOHN DOES AND
JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY,
for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS [P130,000,000.00], more or less, representing a portion of the TWO HUNDRED
MILLION PESOS [P200,000,000] tobacco excise tax share allocated for the Province of Ilocor Sur
under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie ‘Atong’ Ang,
Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a.
Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS, and
the Social Security System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE
HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
[P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A
TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED
SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH
JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS [P189,700,000.00], MORE OR LESS, FROM THE BELLE CORPORATION WHICH
BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE
VELARDE";
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS,
OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED
FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
[P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT
THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001"12
Petitioner’s contention that R.A. No. 7080 is unconstitutional as applied to him is principally perched on the
premise that the Amended Information charged him with only one act or one offense which cannot constitute
plunder. He then assails the denial of his right to bail.
Petitioner’s premise is patently false. A careful examination of the Amended Information will show that it is
divided into three (3) parts: (1) the first paragraph charges former President Joseph E. Estrada with the crime of
plunder together with petitioner Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte
and others; (2) the second paragraph spells out in general terms how the accused conspired in committing the
crime of plunder; and (3) the following four sub-paragraphs (a) to (d) describe in detail the predicate acts
constitutive of the crime of plunder pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the
accused who committed each act.
Pertinent to the case at bar is the predicate act alleged in sub-paragraph (a) of the Amended Informationwhich
is of "receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount of
₱545,000,000.00 for illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary
benefit x x x." In this sub-paragraph (a), petitioner, in conspiracy with former President Estrada, is charged with
the act of receiving or collecting money from illegal gambling amounting to ₱545 million. Contrary to petitioner’s
posture, the allegation is that he received or collected money from illegal gambling "on several instances." The
phrase "on several instances" means the petitioner committed the predicate act in series. To insist that the
Amended Information charged the petitioner with the commission of only one act or offense despite the phrase
"several instances" is to indulge in a twisted, nay, "pretzel" interpretation.
It matters little that sub-paragraph (a) did not utilize the exact words "combination" or "series" as they appear in
R.A. No. 7080. For in Estrada v. Sandiganbayan,13 we held that where these two terms are to be taken in their
popular, not technical, meaning, the word "series" is synonymous with the clause "on several instances." "Series"
refers to a repetition of the same predicate act in any of the items in Section 1 (d) of the law. The word
"combination" contemplates the commission of at least any two different predicate acts in any of said
items. Plainly, sub-paragraph (a) of the Amended Information charges petitioner with plunder committed by a
series of the same predicate act under Section 1 (d) (2) of the law.
Similarly misleading is petitioner’s stand that in the Ombudsman Resolution of April 4, 2001 finding probable
cause to charge him with plunder together with the other accused, he was alleged to have received only the sum
of P2 million, which amount is way below the minimum of P50 million required under R.A. No. 7080. The
submission is not borne out by the April 4, 2001 Resolution of the Ombudsman, recommending the filing of
charges against petitioner and his co-accused, which in pertinent part reads:
"x x x xxx xxx
Respondent Jose ‘Jinggoy’ Estrada, the present Mayor of San Juan, Metro Manila, appears to have also
surreptitious collection of protection money from jueteng operations in Bulacan. This is gleaned from the
statements of Gov. Singson himself and the fact that Mayor Estrada, on at least two occasions, turned over to a
certain Emma Lim, an emissary of the respondent governor, jueteng haul totalling P2 million, i.e., P1 million in
January, 2000 and another P1 million in February, 2000. An alleged "listahan" of jueteng recipients listed him as
one "Jingle Bell," as affirmed by Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI]."14
Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that P2 million was
delivered to petitioner as "jueteng haul" on "at least two occasions." The P2 million is, therefore, not the entire
sum with which petitioner is specifically charged. This is further confirmed by the conclusion of the Ombudsman
that:
"x x x xxx xxx
It is clear that Joseph Ejercito Estrada, in confabulation with Jose ‘Jinggoy’ Estrada, Atty. Edward Serapio and
Yolanda Ricaforte, demanded and received, as bribe money, the aggregate sum of P545 million from jueteng
collections of the operators thereof, channeled thru Gov. Luis ‘Chavit’ Singson, in exchange for protection from
arrest or interference by law enforcers; x x x."15
To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to establish any
probable cause against him for plunder. The respondent Sandiganbayan itself has found probable cause against
the petitioner for which reason it issued a warrant of arrest against him. Petitioner then underwent arraignment
and is now on trial. The time to assail the finding of probable cause by the Ombudsman has long passed. The
issue cannot be resurrected in this petition.
II.
Next, petitioner contends that "the plunder law does not provide sufficient and complete standards to guide the
courts in dealing with accused alleged to have contributed to the offense."16 Thus, he posits the following
questions:
"For example, in an Information for plunder which cites at least ten criminal acts, what penalty do we impose on
one who is clearly involved in only one such criminal act? Is it reclusion perpetua? Or should it be a lesser
penalty? What if another accused is shown to have participated in three of the ten specifications, what would be
the penalty imposable, compared to one who may have been involved in five or seven of the specifications? The
law does not provide the standard or specify the penalties and the courts are left to guess. In other words, the
courts are called to say what the law is rather than to apply what the lawmaker is supposed to have intended."17
Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he is charged
with only one act or offense and (2) he has not conspired with the other accused named in sub-paragraphs (b) to
(d) of the Amended Information, ergo, the penalty imposable on him ought to be different from reclusion
perpetua to death. R.A. No. 7080, he bewails, is cloudy on the imposable penalty on an accused similarly situated
as he is. Petitioner, however, overlooks that the second paragraph of the Amended Information charges him to
have conspired with former President Estrada in committing the crime of plunder. His alleged participation
consists in the commission of the predicate acts specified in sub-paragraph (a) of the Amended Information. If
these allegations are proven, the penalty of petitioner cannot be unclear. It will be no different from that of the
former President for in conspiracy, the act of one is the act of the other. The imposable penalty is provided in
Section 2 of R.A. No. 7080, viz:
"Section 2. Any public officer who, by himself or in connivance with the members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires
ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in
the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public
officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court."
III.
Petitioner also faults the respondent Sandiganbayan for "sustaining the charge against petitioner for alleged
offenses and with alleged conspirators, with which and with whom he is not even remotely connected – contrary
to the dictum that criminal liability is personal, not vicarious – results in the denial of substantive due process."18
The Solicitor General argues, on the other hand, that petitioner is charged not only with the predicate act in sub-
paragraph (a) but also with the other predicate acts in sub-paragraphs (b), (c) & (d) because he is indicted as a
principal and as co-conspirator of the former President. This is purportedly clear from the first and second
paragraphs of the Amended Information.19
For better focus, there is a need to examine again the allegations of the Amended Information vis-à-vis the
provisions of R.A. No. 7080.
The Amended Information, in its first two paragraphs, charges petitioner and his other co-accused with the crime
of plunder. The first paragraph names all the accused, while the second paragraph describes in general how
plunder was committed and lays down most of the elements of the crime itself. Sub-paragraphs (a) to (d)
describe in detail the predicate acts that constitute the crime and name in particular the co-conspirators of
former President Estrada in each predicate act. The predicate acts alleged in the said four sub-paragraphs
correspond to the items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate
act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of
illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in
committing the offense. This predicate act corresponds with the offense described in item [2] of the
enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving
or misappropriating a portion of the tobacco excise tax share allocated for the province of Ilocos Sur, which act is
the offense described in item [1] in the enumeration in Section 1 (d) of the law. This sub-paragraph does not
mention petitioner but instead names other conspirators of the former President. Sub-paragraph (c) alleged two
predicate acts - that of ordering the Government Service Insurance System (GSIS) and the Social Security System
(SSS) to purchase shares of stock of Belle Corporation, and collecting or receiving commissions from such
purchase from the Belle Corporation which became part of the deposit in the "Jose Velarde" account at the
Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the enumeration of R.A. No. 7080,
and was allegedly committed by the former President in connivance with John Does and Jane Does. Finally, sub-
paragraph (d) alleged the predicate act that the former President unjustly enriched himself from commissions,
gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the same under his account name
"Jose Velarde" at the Equitable-PCI Bank. This act corresponds to the offense under item [6] in the enumeration
of Section 1 (d) of R.A. No. 7080.
From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-
paragraphs (a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to
amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. As the Amended
Informationis worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with
each otherto enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity,
petitioner cannot be penalized for the conspiracy entered into by the other accused with the former President as
related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold
that petitioner can be held accountable only for the predicate acts he allegedly committed as related in sub-
paragraph (a) of the Amended Information which were allegedly done in conspiracy with the former President
whose design was to amass ill-gotten wealth amounting to more than P4 billion.
We hasten to add, however, that the respondent Ombudsman cannot be faulted for including the predicate
acts alleged in sub-paragraphs (a) to (d) of the Amended Information in one, and not in four, separate
Informations. A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and
folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos
regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged
cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude of the
acts allegedly committed by the former President to acquire illegal wealth.20 They also found that under the
then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special
laws, the acts involved different transactions, different time and different personalities. Every transaction
constituted a separate crime and required a separate case and the over-all conspiracy had to be broken down
into several criminal and graft charges. The preparation of multiple Informations was a legal nightmare but
eventually, thirty-nine (39) separate and independent cases were filed against practically the same accused
before the Sandiganbayan.21 R.A. No. 7080 or the Anti-Plunder Law22 was enacted precisely to address this
procedural problem. This is pellucid in the Explanatory Note to Senate Bill No. 733, viz:
"Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes
the use of high office for personal enrichment, committed thru a series of acts done not in the public eye but in
stealth and secrecy over a period of time, that may involve so many persons, here and abroad, and which touch
so many states and territorial units. The acts and/or omissions sought to be penalized do not involve simple
cases of malversation of public funds, bribery, extortion, theft and graft but constitute plunder of an entire
nation resulting in material damage to the national economy. The above-described crime does not yet exist in
Philippine statute books. Thus, the need to come up with a legislation as a safeguard against the possible
recurrence of the depravities of the previous regime and as a deterrent to those with similar inclination to
succumb to the corrupting influence of power."
There is no denying the fact that the "plunder of an entire nation resulting in material damage to the national
economy" is made up of a complex and manifold network of crimes. In the crime of plunder, therefore,
different parties may be united by a common purpose. In the case at bar, the different accused and their
different criminal acts have a commonality—to help the former President amass, accumulate or acquire ill-
gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the different participation of each
accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that each accused agreed to
receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax,
that each accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions
from such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that
each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing,
accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada.
In the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two
structures: (1) the so-called "wheel" or "circle" conspiracy, in which there is a single person or group (the "hub")
dealing individually with two or more other persons or groups (the "spokes"); and (2) the "chain" conspiracy,
usually involving the distribution of narcotics or other contraband, in which there is successive communication
and cooperation in much the same way as with legitimate business operations between manufacturer and
wholesaler, then wholesaler and retailer, and then retailer and consumer.23
From a reading of the Amended Information, the case at bar appears similar to a "wheel" conspiracy. The hub is
former President Estrada while the spokes are all the accused, and the rim that encloses the spokes is the
common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.
 IV.
Some of our distinguished colleagues would dismiss the charge against the petitioner on the ground that the
allegation of conspiracy in the Amended Information is too general. The fear is even expressed that it could serve
as a net to ensnare the innocent. Their dissents appear to be inspired by American law and jurisprudence.
We should not confuse our law on conspiracy with conspiracy in American criminal law and in common law.
Under Philippine law, conspiracy should be understood on two levels. As a general rule, conspiracy is not a
crime in our jurisdiction. It is punished as a crime only when the law fixes a penalty for its commission such as
in conspiracy to commit treason, rebellion and sedition. In contrast, under American criminal law, the
agreement or conspiracy itself is the gravamen of the offense.24 The essence of conspiracy is the combination of
two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in
itself criminal or unlawful, by criminal or unlawful means.25 Its elements are: agreement to accomplish an illegal
objective, coupled with one or more overt acts in furtherance of the illegal purpose; and requisite intent
necessary to commit the underlying substantive offense.26
A study of the United States Code ought to be instructive. It principally punishes two (2) crimes of
conspiracy27 – conspiracy to commit any offense or to defraud the United States, and conspiracy to impede or
injure officer. Conspiracy to commit offense or to defraud the United States is penalized under 18 U.S.C. Sec.
371,28as follows:
"Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either
to commit any offense against the United States, or to defraud the United States, or any agency thereof in any
manner or for any purpose, and one or more of such persons to any act to effect the object of the conspiracy,
each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor."
Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz:
"Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory, Possession, or
District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office,
trust or place of confidence under the United States, or from discharging any duties thereof, or to induce by like
means any officer of the United States to leave the place, where his duties as an officer are required to be
performed, or to injure him in his person or property on account of his lawful discharge of the duties of his
office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt,
hinder, or impede him in the discharge of his official duties, each of such persons shall be fined not more than
$5,000 or imprisoned not more than six years, or both."
Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any offense against the United States; and
(2) conspiracy to defraud the United States or any agency thereof. The conspiracy to "commit any offense
against the United States" refers to an act made a crime by federal laws.29 It refers to an act punished by
statute.30Undoubtedly, Section 371 runs the whole gamut of U.S. Federal laws, whether criminal or
regulatory.31 These laws cover criminal offenses such as perjury, white slave traffic, racketeering, gambling,
arson, murder, theft, bank robbery, etc. and also include customs violations, counterfeiting of currency,
copyright violations, mail fraud, lotteries, violations of antitrust laws and laws governing interstate commerce
and other areas of federal regulation.32Section 371 penalizes the conspiracy to commit any of these substantive
offenses. The offense of conspiracy is generally separate and distinct from the substantive offense,33 hence,
the court rulings that acquittal on the substantive count does not foreclose prosecution and conviction for
related conspiracy.34
The conspiracy to "defraud the government" refers primarily to cheating the United States out of property or
money. It also covers interference with or obstruction of its lawful governmental functions by deceit, craft or
trickery, or at least by means that are dishonest.35 It comprehends defrauding the United States in any manner
whatever, whether the fraud be declared criminal or not.36
The basic difference in the concept of conspiracy notwithstanding, a study of the American case law
on howconspiracy should be alleged will reveal that it is not necessary for the indictment to include
particularities of time, place, circumstances or causes, in stating the manner and means of effecting the object
of the conspiracy. Such specificity of detail falls within the scope of a bill of particulars.37 An indictment for
conspiracy is sufficient where it alleges: (1) the agreement; (2) the offense-object toward which the agreement
was directed; and (3) the overt acts performed in furtherance of the agreement. 38 To allege that the defendants
conspired is, at least, to state that they agreed to do the matters which are set forth as the substance of their
conspiracy. To allege a conspiracy is to allege an agreement.39 The gist of the crime of conspiracy is unlawful
agreement, and where conspiracy is charged, it is not necessary to set out the criminal object with as great a
certainty as is required in cases where such object is charged as a substantive offense.40
In sum, therefore, there is hardly a substantial difference on how Philippine courts and American courts deal
with cases challenging Informations alleging conspiracy on the ground that they lack particularities of time,
place, circumstances or causes. In our jurisdiction, as aforestated, conspiracy can be alleged in the Information
as a mode of committing a crime or it may be alleged as constitutive of the crime itself. When conspiracy is
alleged as a crime in itself, the sufficiency of the allegations in the Information charging the offense is
governed by Section 6, Rule 110 of the Revised Rules of Criminal Procedure. It requires that the information for
this crime must contain the following averments:
"Sec. 6. Sufficiency of complaint or information.- A complaint or information is sufficient if it states the name of
the accused, the designation of the offense given by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate date of the commission of the
offense; and the place where the offense was committed.
When the offense was committed by more than one person, all of them shall be included in the complaint or
information."
The complaint or information to be sufficient must state the name of the accused, designate the offense given by
statute, state the acts or omissions constituting the offense, the name of the offended party, the approximate
date of the commission of the offense and the place where the offense was committed.
Our rulings have long settled the issue on how the acts or omissions constituting the offense should be made in
order to meet the standard of sufficiency. Thus, the offense must be designated by its name given by statute or
by reference to the section or subsection of the statute punishing it.41 The information must also state the acts or
omissions constituting the offense, and specify its qualifying and aggravating circumstances.42 The acts or
omissions complained of must be alleged in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and enable the court to pronounce proper
judgment.43 No information for a crime will be sufficient if it does not accurately and clearly allege the elements
of the crime charged.44 Every element of the offense must be stated in the information.45 What facts and
circumstances are necessary to be included therein must be determined by reference to the definitions and
essentials of the specified crimes.46 The requirement of alleging the elements of a crime in the information is to
inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his
defense. The presumption is that the accused has no independent knowledge of the facts that constitute the
offense.47
To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime
must be set forth in the complaint or information. For example, the crime of "conspiracy to commit treason" is
committed when, in time of war, two or more persons come to an agreement to levy war against the
Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it.48 The
elements of this crime are: (1) that the offender owes allegiance to the Government of the Philippines; (2) that
there is a war in which the Philippines is involved; (3) that the offender and other person or persons come to an
agreement to: (a) levy war against the government, or (b) adhere to the enemies, to give them aid and comfort;
and (4) that the offender and other person or persons decide to carry out the agreement. These elements must
be alleged in the information.
The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in itself
but only as the mode of committing the crime as in the case at bar. There is less necessity of reciting its
particularities in the Information because conspiracy is not the gravamen of the offense charged. The
conspiracy is significant only because it changes the criminal liability of all the accused in the conspiracy and
makes them answerable as co-principals regardless of the degree of their participation in the crime.49 The liability
of the conspirators is collective and each participant will be equally responsible for the acts of others,50 for the
act of one is the act of all.51 In People v. Quitlong,52 we ruled on how conspiracy as the mode of committing the
offense should be alleged in the Information, viz:
"x x x. In embodying the essential elements of the crime charged, the information must set forth the facts and
circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly
prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more
accused persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not
excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation,
however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or
others, is indispensable in order to hold such person, regardless of the nature and extent of his own
participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists
and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary
importance, the act of one being imputable to all the others (People v. Ilano, 313 SCRA 442). Verily, an accused
must know from the information whether he faces a criminal responsibility not only for his acts but also for the
acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details
thereof, like the part that each of the parties therein have performed, the evidence proving the common
design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it
necessary to describe conspiracy with the same degree of particularity required in describing a substantive
offense. It is enough that the indictment contains a statement of facts relied upon to be constitutive of the
offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a
manner that can enable a person of common understanding to know what is intended, and with such
precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the
same facts. It is said, generally, that an indictment may be held sufficient "if it follows the words of the statute
and reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or,
following the language of the statute, contains a sufficient statement of an overt act to effect the object of the
conspiracy, or alleges both the conspiracy and the contemplated crime in the language of the respective statutes
defining them (15A C.J.S. 842-844).
xxx xxx xxx
x x x. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to
commit the felony and forthwith to actually pursue it. Verily, the information must state that the accused have
confederated to commit the crime or that there has been a community of design, a unity of purpose or an
agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of
the words "conspired" or "confederated" or the phrase "acting in conspiracy," must aptly appear in the
information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime,
the unity of purpose or the community of design among the accused must be conveyed such as either by the
use of the term "conspire" or its derivatives and synonyms or by allegations of basic facts constituting the
conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can
aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may
be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not
necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused.
xxx xxx x x x."
Again, following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the
commission of an offense in either of the following manner: (1) by use of the word "conspire," or its derivatives
or synonyms, such as confederate, connive, collude, etc;53 or (2) by allegations of basic facts constituting the
conspiracy in a manner that a person of common understanding would know what is intended, and with such
precision as would enable the accused to competently enter a plea to a subsequent indictment based on the
same facts.54
The allegation of conspiracy in the information must not be confused with the adequacy of evidence that may
be required to prove it. A conspiracy is proved by evidence of actual cooperation; of acts indicative of an
agreement, a common purpose or design, a concerted action or concurrence of sentiments to commit the felony
and actually pursue it.55 A statement of this evidence is not necessary in the information.
In the case at bar, the second paragraph of the Amended Information alleged in general terms how the
accused committed the crime of plunder. It used the words "in connivance/conspiracy with his co-accused."
Following the ruling in Quitlong, these words are sufficient to allege the conspiracy of the accused with the
former President in committing the crime of plunder.
V.
We now come to petitioner’s plea for bail. On August 14, 2002, during the pendency of the instant petition
before this Court, petitioner filed with respondent Sandiganbayan an "Urgent Second Motion for Bail for Medical
Reasons." Petitioner prayed that he be allowed to post bail due to his serious medical condition which is life- 2001, five months ago. The records do not show that evidence on petitioner’s guilt was presented before the
threatening to him if he goes back to his place of detention.1âwphi1 The motion was opposed by respondent lower court.
Ombudsman to which petitioner replied.
Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to determine if the
For three days, i.e., on September 4, 20 and 27, 2001, respondent Sandiganbayan conducted hearings on the evidence of petitioner’s guilt is strong as to warrant the granting of bail to petitioner.
motion for bail. Dr. Roberto V. Anastacio, a cardiologist of the Makati Medical Center, testified as sole witness
for petitioner. IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent Sandiganbayan acted
without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.
On December 18, 2001, petitioner filed with the Supreme Court an "Urgent Motion for Early/Immediate
Resolution of Jose ‘Jinggoy’ Estrada’s Petition for Bail on Medical/Humanitarian Considerations." Petitioner SO ORDERED.
reiterated the motion for bail he earlier filed with respondent Sandiganbayan.56
Davide, Jr., C.J., Bellosillo, Melo, Mendoza, Panganiban, Quisumbing, and De Leon, Jr., JJ., concur.
On the same day, we issued a Resolution referring the motion to respondent Sandiganbayan for resolution and
requiring said court to make a report, not later than 8:30 in the morning of December 21, 2001.

On December 21, 2001, respondent court submitted its Report. Attached to the Report was its Resolution dated
December 20, 2001 denying petitioner’s motion for bail for "lack of factual basis." 57 Basing its finding on the
earlier testimony of Dr. Anastacio, the Sandiganbayan found that petitioner "failed to submit sufficient evidence
to convince the court that the medical condition of the accused requires that he be confined at home and for
that purpose that he be allowed to post bail."58

The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659, with the penalty
of reclusion perpetua to death. Under our Rules, offenses punishable by death, reclusion perpetua or life
imprisonment are non-bailable when the evidence of guilt is strong, to wit:

"Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No
person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall
be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution."59

Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III of the 1987
Constitution which reads:

"Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction be bailable by sufficient sureties, or be released on recognizance as may
be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required."

The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or
not the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings wherein
both the prosecution and the defense are afforded sufficient opportunity to present their respective evidence.
The burden of proof lies with the prosecution to show strong evidence of guilt.60

This Court is not in a position to grant bail to the petitioner as the matter requires evidentiary hearing that
should be conducted by the Sandiganbayan. The hearings on which respondent court based its Resolution of
December 20, 2001 involved the reception of medical evidence only and which evidence was given in September
 Republic of the Philippines the conspiracy theory may sweep into jail even innocent persons who may have been made unwitting tools by
SUPREME COURT the criminal minds who engineered the defraudation.
Manila
Under the Sandiganbayan's decision in this case, a department secretary, bureau chief, commission chairman,
EN BANC agency head, and all chief auditors would be equally culpable for every crime arising from disbursements which
they have approved. The department head or chief auditor would be guilty of conspiracy simply because he was
G.R. No. 81563 December 19, 1989 the last of a long line of officials and employees who acted upon or affixed their signatures to a transaction. Guilt
must be premised on a more knowing, personal, and deliberate participation of each individual who is charged
with others as part of a conspiracy.
AMADO C. ARIAS, petitioner,
vs.
THE SANDIGANBAYAN, respondent. The records show that the six accused persons were convicted in connection with the overpricing of land
purchased by the Bureau of Public Works for the Mangahan Floodway Project. The project was intended to ease
the perennial floods in Marikina and Pasig, Metro Manila.
G.R. No. 82512 December 19, 1989

The accused were prosecuted because 19,004 square meters of "riceland" in Rosario, Pasig which had been
CRESENCIO D. DATA, petitioner,
assessed at P5.00 a square meter in 1973 were sold as residential land" in 1978 for P80.00 a square meter. The
vs.
land for the floodway was acquired through negotiated purchase,
THE SANDIGANBAYAN, respondent.

We agree with the Solicitor-General that the assessor's tax valuation of P5.00 per square meter of land in
Paredes Law Office for petitioner.
Rosario, Pasig, Metro Manila is completely unrealistic and arbitrary as the basis for conviction.

Herein lies the first error of the trial court.

GUTIERREZ, JR., J.:

It must be stressed that the petitioners are not charged with conspiracy in the falsification of public documents
or preparation of spurious supporting papers. The charge is causing undue injury to the Government and giving a
The facts of this case are stated in the dissenting opinion of Justice Carolina C. Griño-Aquino which follows this private party unwarranted benefits through manifest partiality, evident bad faith, or inexcusable negligence.
majority opinion. The dissent substantially reiterates the draft report prepared by Justice Griño-Aquino as a
working basis for the Court's deliberations when the case was being discussed and for the subsequent votes of
The alleged undue injury in a nutshell is the Government purchase of land in Pasig, Rizal for P80.00 a square
concurrence or dissent on the action proposed by the report.
meter instead of the P5.00 value per square meter appearing in the tax declarations and fixed by the municipal
assessor, not by the landowner.
There is no dispute over the events which transpired. The division of the Court is on the conclusions to be drawn
from those events and the facts insofar as the two petitioners are concerned. The majority is of the view that
The Sandiganbayan, without any clear factual basis for doing so has assumed that the P5.00 per square meter
Messrs. Arias and Data should be acquitted on grounds of reasonable doubt. The Court feels that the quantum of
value fixed by the assessor in the tax declarations was the correct market value of the Mangahan property and if
evidence needed to convict petitioners Arias and Data beyond reasonable doubt, as co-conspirators in the
the Government purchased the land for P80.00 a square meter, it follows that it must have suffered undue
conspiracy to cause undue injury to the Government through the irregular disbursement and expenditure of
injury.
public funds, has not been satisfied.

The Solicitor General explains why this conclusion is erroneous:

In acquitting the petitioners, the Court agrees with the Solicitor-General 1 who, in 80 pages of his consolidated
manifestation and motion, recommended that Messrs. Arias and Data be acquitted of the crime charged, with
costs de oficio. Earlier, Tanodbayan Special Prosecutor Eleuterio F. Guerrero had also recommended the 1. No undue injury was caused to the Government
dropping of Arias from the information before it was filed.
a. The P80.00 per square rneter acquisition cost is just fair and
There is no question about the need to ferret out and convict public officers whose acts have made the bidding reasonable.
out and construction of public works and highways synonymous with graft or criminal inefficiency in the public
eye. However, the remedy is not to indict and jail every person who may have ordered the project, who signed a It bears stress that the Agleham property was acquired through negotiated purchase. It was,
document incident to its construction, or who had a hand somewhere in its implementation. The careless use of therefor, nothing more than an ordinary contract of sale where the purchase price had to be
 arrived at by agreement between the parties and could never be left to the discretion of one The Court's decision, however, is based on a more basic reason. Herein lies the principal error of the respondent
of the contracting parties (Article 1473, New Civil Code). For it is the essence of a contract of court.
sale that there must be a meeting of the minds between the seller and the buyer upon the
thing which is the object of the contract and upon the price (Article 1475, New Civil Code). We would be setting a bad precedent if a head of office plagued by all too common problems-dishonest or
Necessarily, the parties have to negotiate the reasonableness of the price, taking into negligent subordinates, overwork, multiple assignments or positions, or plain incompetence is suddenly swept
consideration such other factors as location, potentials, surroundings and capabilities. After into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace
taking the foregoing premises into consideration, the parties have, thus, arrived at the every step from inception, and investigate the motives of every person involved in a transaction before affixing,
amount of P80.00 per square meter as the fair and reasonable price for the Agleham his signature as the final approving authority.
property.
There appears to be no question from the records that documents used in the negotiated sale were falsified. A
It bears stress that the prosecution failed to adduce evidence to prove that the true and fair key tax declaration had a typewritten number instead of being machine-numbered. The registration stampmark
market value in 1978 of the Agleham property was indeed P5.00 per square meter only as was antedated and the land reclassified as residential instead of ricefield. But were the petitioners guilty of
stated by the assessor in the tax declaration (Exhibit W). On the contrary, the prosecution's conspiracy in the falsification and the subsequent charge of causing undue in injury and damage to the
principal witness Pedro Ocol, the Assistant Municipal Assessor of Pasig, admitted that the Government?
purchase price of P80.00 per square meter paid for the Agleham property as stated in the
Deed of Sale (Exhibit G) is reasonable (tsn, August 19,1983, p. 20) and fair (Ibid, p. 76); that
We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures,
'the value of lands within the town of Pasig ranges from P80.00 to P500.00' (Ibid, p. 21); that
and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in
the Agleham property is "around 300 meters" from Ortigas Avenue, "adjacent to the existing
all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have
Leongson [Liamson] Subdivision ... and near Eastland Garment Building" (Ibid, pp. 12-13);
to rely to a reasonable extent 'on their subordinates and on the good faith of those prepare bids, purchase
that said property is surrounded by factories, commercial establishments and residential
supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not
subdivisions (Ibid, pp. 73-74); that the P5.00 per square meter assessed valuation of the
ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was
Agleham property appearing on the tax declaration (Exhibit W) was based on actual use only
present at the luncheon, inquire whether the correct amount of food was served and otherwise personally look
(lbid, pp. 26-27), it being the uniform rate for all ricefields in Pasig irrespective of their
into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be some added reason why
locations (Ibid, pp. 72-74) and did not take into account the existence of many factories and
he should examine each voucher in such detail. Any executive head of even small government agencies or
subdivisions in the area (Ibid., pp. 25-27, 72-74), and that the assessed value is different from
commissions can attest to the volume of papers that must be signed. There are hundreds of document , letters
and always lower than the actual market value (Ibid, pp. 22-23). (At pp. 256-259, Rollo)
and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even
more appalling.
A negotiated purchase may usually entail a higher buying price than one arrived at in the course of expropriation
proceedings.
There should be other grounds than the mere signature or approval appearing on a voucher to sustain a
conspiracy charge and conviction.
In Export Processing Zone Authority v. Dulay (149 SCRA 305, 310 [1987]) we struck down the martial law decree
that pegged just compensation in eminent domain cases to the assessed value stated by a landowner in his tax
Was petitioner Arias part of the planning, preparation, and perpetration of the alleged conspiracy to defraud the
declaration or fixed by the municipal assessor, whichever is lower. Other factors must be considered. These
government?
factors must be determined by a court of justice and not by municipal employees.

Arias joined the Pasig office on July 19, 1978. The negotiations for the purchase of the property started in 1977.
In the instant case, the assessor's low evaluation, in the fixing of which the landowner had no participation, was
The deed of sale was executed on April 20, 1978. Title was transferred to the Republic on June 8, 1978. In other
used for a purpose infinitely more weighty than mere expropriation of land. It forms the basis for a criminal
words, the transaction had already been consummated before his arrival. The pre-audit, incident to payment of
conviction.
the purchase, was conducted in the first week of October, 1978. Arias points out that apart from his signature
linking him to the signature on the voucher, there is no evidence transaction. On the contrary, the other co-
The Court is not prepared to say that P80.00 to P500.00 a square meter for land in Pasig in 1978 would be a fair accused testified they did not know him personally and none approached him to follow up the payment.
evaluation. The value must be determined in eminent domain proceedings by a competent court. We are
certain, however, that it cannot be P5.00 a square meter. Hence, the decision, insofar as it says that the "correct"
Should the big amount of P1,520,320.00 have caused him to investigate . gate the smallest detains of the
valuation is P5.00 per square meter and on that basis convicted that petitioners of causing undue injury,
transaction?
damage, and prejudice to the Government because of gross overpricing, is grounded on shaky foundations.

Yes, if the land was really worth only P5.00 a square meter. However, if land in Pasig was already worth P80.00 a
There can be no overpricing for purposes of a criminal conviction where no proof adduced during orderly
square meter at the time, no warning bell of intuition would have sounded an inner alarm. Land along Ortigas
proceedings has been presented and accepted.
Avenue on the way to Pasig is now worth P20,000.00 to P30,000.00 a square meter. The falsification of the tax
declaration by changing "riceland" to "residential' was done before Arias was assigned to Pasig besides, there is
no such thing as "riceland" in inner Metro Manila. Some lots in outlying or easily flooded areas may still be
planted to rice or kangkong but this is only until the place is dedicated to its real purpose which is commercial,
industrial, or residential. If the Sandiganbayan is going to send somebody to jail for six years, the decision should
be based on firmer foundation.
The Sandiganbayan asked why Arias kept the documents from October, 1978 to June 23, 1982. Arias explained
that the rules of the Commission on Audit require auditors to keep these d documents and under no
circumstance to relinquish custody to other persons. Arias was auditor of the Bureau of Public Works in Pasig up
to September 1, 1981. The seven months delay in the formal turnover of custody to the new auditor was
explained by prosecution witness Julito Pesayco, who succeeded him as auditor and who took over the custody
of records in that office.
The main reason for the judgment of conviction, for the finding of undue injury and damage to the Government
is the alleged gross overprice for the land purchased for the floodway project. Assuming that P80.00 is indeed
exorbitant, petitioner Arias cites his testimony as follows:
Q In conducting the pre-audit, did you determine the reasonableness of
the price of the property?
A In this case, the price has been stated, the transaction had been
consummated and the corresponding Transfer Certificate of little had
been issued and transferred to the government of the Philippines. The
auditors have no more leeway to return the papers and then question
the purchase price.
Q Is it not a procedure in your office that before payment is given by the
government to private individuals there should be a pre-audit of the
papers and the corresponding checks issued to the vendor?
A Correct, Your Honor, but it depends on the kind of transaction there is.
Q Yes, but in this particular case, the papers were transferred to the
government without paying the price Did you not consider that rather
odd or unusual? (TSN, page 17, April 27,1987).
A No, Your Honor.
Q Why not?
A Because in the Deed of Sale as being noted there, there is a condition
that no payments will be made unless the corresponding title in the
payment of the Republic is committed is made.
Q In this case you said that the title is already in the name of the
government?
A Yes, Your Honor. The only thing we do is to determine whether there is
an appropriation set aside to cover the said specification. As of the price it
is under the sole authority of the proper officer making the sale.
Q My point is this. Did you not consider it unusual for a piece of property
to be bought by the government; the sale was consummated; the title
was issued in favor of the government without the price being paid first
to the seller?
A No, Your Honor. In all cases usually, payments made by the government
comes later than the transfer.
Q That is usual procedure utilized in road right of way transaction?
A Yes, Your Honor. (TSN, p. 18, April 27,1987).
Q And of course as auditor, 'watch-dog' of the government there is also
that function you are also called upon by going over the papers . . . (TSN,
page 22, April 27,1987). I ... vouchers called upon to determine whether
there is any irregularity as at all in this particular transaction, is it not?
A Yes, Ma'am.
Q And that was in fact the reason why you scrutinized also, not only the
tax declaration but also the certification by Mr. Jose and Mr. Cruz?
A As what do you mean of the certification, ma'am?
Q Certification of Mr. Jose and Mr. Cruz in relation to PD No. 296, A They
are not required documents that an auditor must see. (TSN, page 23,
April 27,1987).
and continuing:
A ... The questioning of the purchase price is now beyond the authority of
the auditor because it is inasmuch as the amount involved is beyond his
counter-signing authority. (TSN, page 35, April 27, 1987). (At pp. 15-16,
Petition. Underlinings supplied by petitioner)
The Solicitor General summarizes the participation of petitioner Data as follows:
 As regards petitioner Data's alleged participation, the evidence on record shows that as the
then District Engineer of the Pasig Engineering District he created a committee, headed by
Engr. Priscillo Fernando with Ricardo Asuncion, Alfonso Mendoza, Ladislao Cruz, Pedro
Hucom and Carlos Jose, all employees of the district office, as members, specifically to
handle the Mangahan Floodway Project, gather and verify documents, conduct surveys,
negotiate with the owners for the sale of their lots, process claims and prepare the necessary
documents; he did not take any direct and active part in the acquisition of land for the
Mangahan floodway; it was the committee which determined the authenticity of the
documents presented to them for processing and on the basis thereof prepared the
corresponding deed of sale; thereafter, the committee submitted the deed of sale together
with the supporting documents to petitioner Data for signing; on the basis of the supporting
certified documents which appeared regular and complete on their face, petitioner Data, as
head of the office and the signing authority at that level, merely signed but did not approve
the deed of sale (Exhibit G) as the approval thereof was the prerogative of the Secretary of
Public Works; he thereafter transmitted the signed deed of sale with its supporting
documents to Director Anolin of the Bureau of Public Works who in turn recommended
approval thereof by the Secretary of Public Works; the deed of sale was approved by the
Asst. Secretary of Public Works after a review and re-examination thereof at that level; after
the approval of the deed of sale by the higher authorities the covering voucher for payment
thereof was prepared which petitioner Data signed; petitioner Data did not know Gutierrez
and had never met her during the processing and payment of her claims (tsn, February 26,
1987, pp. 10-14, 16-24, 31-32). (At pp. 267-268, Rollo.)
On the alleged conspiracy, the Solicitor General argues:
It is respectfully submitted that the prosecution likewise has not shown any positive and
convincing evidence of conspiracy between the petitioners and their co-accused. There was
no direct finding of conspiracy. Respondent Court's inference on the alleged existence of
conspiracy merely upon the purported 'pre-assigned roles (of the accused) in the commission
of the (alleged) illegal acts in question is not supported by any evidence on record. Nowhere
in the seventy- eight (78) page Decision was there any specific allusion to some or even one
instance which would link either petitioner Arias or Data to their co-accused in the planning,
preparation and/or perpetration, if any, of the purported fraud and falsifications alleged in
the information That petitioners Data and Arias happened to be officials of the Pasig District
Engineering Office who signed the deed of sale and passed on pre-audit the general voucher
covering the subject sale, respectively, does hot raise any presumption or inference, that
they were part of the alleged plan to defraud the Government, as indeed there was none. It
should be remembered that, as aboveshown, there was no undue injury caused to the
Government as the negotiated purchase of the Agleham property was made at the fair and
reasonable price of P80.00 per square meter.
That there were erasures and superimpositions of the words and figures of the purchase
price in the deed of sale from P1,546,240.00 to P1,520,320.00 does not prove conspiracy. It
may be noted that there was a reduction in the affected area from the estimated 19,328
square meters to 19,004 square meters as approved by the Land Registration Commission,
which resulted in the corresponding reduction in the purchase price from P1,546,240.00 to
Pl,520,320.00. The erasures in the deed of sale were simple corrections that even benefited
the Government.
Moreover, contrary to the respondent Court's suspicion, there was nothing irregular in the
use of the unapproved survey plan/technical description in the deed of sale because the
approval of the survey plan/ technical description was not a prerequisite to the approval of
the deed of sale. What is important is that before any payment is made by the Government
under the deed of sale the title of the seller must have already been cancelled and another
one issued to the Government incorporating therein the technical description as approved by
the Land Registration Commission, as what obtained in the instant case. (At pp. 273-275,
Rollo)
We agree with the counsel for the People. There is no adequate evidence to establish the guilt of the petitioners,
Amado C. Arias and Cresencio D. Data, beyond reasonable doubt. The inadequate evidence on record is not
sufficient to sustain a conviction.
WHEREFORE, the questioned decision of the Sandiganbayan insofar as it convicts and sentences petitioners
Amado C. Arias and Cresencio D. Data is hereby SET ASIDE. Petitioners Arias and Data are acquitted on grounds
of reasonable doubt. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Gancayco, Bidin, Cortes and Medialdea, JJ., concur.
Separate Opinions
GRIÑO-AQUINO, J., dissenting:
The lone issue in these consolidated petitions for review is whether the Sandiganbayan committed a reversible
error in convicting the petitioners, Amado C. Arias and Cresencio D. Data, of having violated Section 3, paragraph
(e), of the Anti Graft and Corrupt Practices Act, in connection with the scandalous overpricing of land purchased
by the Government as right of way for its Mangahan Floodway Project in Pasig, Rizal. The pertinent provision of
the Anti-Graft Law reads as follows:
SEC. 3. Corrupt Practices of Public Officers-In addition to acts or omissions of public officers
already penalized by existing law. the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
xxxxxxxxx
(e) Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other concessions.
The amended information against them, to which they pleaded not guilty, alleged:
That on or about the period covering April, 1978 to October 1978, in Rosario, Pasig, Metro
Manila, Philippines, and with the jurisdiction of this Honorable Court, accused Cresencio D.
Data, being then the district Engineer of the province of Rizal, Ministry of Public Works, and
as such, headed and supervised the acquisition of private lands for the right-of-way of the
Mangahan Floodway Project of the Government at Sitio Mangahan, Rosario, Pasig, Metro
Manila; accused Priscillo G. Fernando, then the Supervising Engineer of the Office of the
District Engineer of Rizal, Ministry of Public Works who acted as assistant of accused
Cresencio D. Data in the Mangahan Floodway Project; accused Ladislao G. Cruz, then the
Senior Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works, who
was charged with the acquisition of lots needed for the Mangahan Floodway Project;
accused Carlos L. Jose then the Instrumentman of the office of the District Engineer of Rizal,
Ministry of Public Works who acted as the surveyor of the Mangahan Floodway Project;
accused Claudio H. Arcaya, then the Administrative Officer I of the Rizal District Engineer's
Office, Ministry of Public Works who passed upon all papers and documents pertaining to
private lands acquired by the Government for the Mangahan Floodway Project; and
accused Amado C. Arias, then the Auditor of Rizal Engineering District, Pasig, Metro Manila,
who passed upon and approved in audit the acquisition as well as the payment of lands
needed for the Mangahan Floodway Project all taking advantage of their public and official
positions, and conspiring, confederating and confabulating with accused Natividad C.
Gutierrez, the attorney-in-fact of Benjamin Agleham, who is the registered owner of a parcel
of land situated at Rosario, Pasig, Metro Manila and covered by Original Certificate of Title
No. 0097, with accused Ladislao G. Cruz, Carlos L. -Jose and Claudio Arias, acting with evident
bad faith, while accused Cresencio D. Data, Priscillo G. Fernando and Amado C. Arias, acting
with manifest partiality in the discharge of their official public and/or administrative
functions, did then and there wilfully, unlawfully and feloniously cause undue injury, damage
and prejudice to the Government of the Republic of the Philippines by causing, allowing
and/or approving the illegal and irregular disbursement and expenditure of public funds in
favor of and in the name of Benjamin P. Agleham in the amount of P1,520,320.00 under
General Voucher No. 8-047, supported by a certification, dated September 14, 1978, which
was purportedly issued by the Municipal Treasurer of Pasig, and certified xerox copies of Tax
Declarations Nos. 47895 and A-018-0091 1, both in the name of Benjamin P. Agleham, and an
alleged owner's copy of Tax Declaration No. 49948, in the name of the Republic of the
Philippines, said supporting documents having been falsified by the accused to make it
appear that the land mentioned in the above-stated supporting papers is a residential land
with a market value of P80.00 per square meter and that 19,004 square meters thereof were
transferred in the name of the Government of the Republic of the Philippines under Tax
Declaration No. 49948, when in truth and in fact, the afore-stated land is actually a riceland
with a true and actual market value of P5.00 per square meter only and Tax Declaration No.
49948 was truly and officially registered in the names of spouses Moises Javillonar and Sofia
San Andres, not in the name of the Government, and refers to a parcel of land at Sagad,
Pasig, Metro Manila; that the foregoing falsities were committed by the accused to conceal
the fact that the true and actual pace of the 19,004 square meters of land of Benjamin P.
Agleham, which was acquired in behalf of the Government by way of negotiated purchase by
the accused officials herein for the right of way of the Mangahan Floodway project at an
overprice of P1,520,320.00 was P92,020.00 only; and finally, upon receipt of the overpriced
amount, the accused misappropriated, converted and misapplied the excess of the true and
actual value of the above-mentioned land, i.e., P1,428,300.00 for their own personal needs,
uses and benefits, to the damage and prejudice of the Government in the amount of
P1,428,300.00. (pp. 2931, Rollo of G.R. No. 81563.)
Priscillo Fernando did not face trial for he has remained at large, his present whereabouts being unknown (p. 48,
Sandiganbayan Decision, p. 75, Rollo of G.R. No. 81563).
In 1975, the Bureau of Public Works initiated the Mangahan Floodway Project to ease the perennial floods
affecting the towns of Marikina and Pasig, Metro Manila. The project would traverse the northern and southern
portions of Ortigas Avenue in Pasig, Metro Manila (Exhibits A and A-1). An announcement was published in
leading newspapers advising affected property owners to file their applications for payment at the District
Engineer's Office (p. 29, Sandiganbayan Decision, p. 56, Ibid.).
The implementation of the Mangahan Floodway Project was entrusted to the Pasig Engineering District headed
by the District Engineer, Cresencio Data. He formed a committee composed of Supervising Civil Engineer Priscillo
Fernando, as over-all in charge, Alfonso Mendoza and Pedro Hucom for acquisition of improvements, and
Instrumentman Carlos Jose for surveys (p. 26, Sandiganbayan Decision, p. 53, Ibid.). The team was tasked to
notify lot owners affected by the project of the impending expropriation of their properties and to receive and
process applications for payment.
The reclassification of all lands around the Mangahan Floodway Project was suspended in 1975 by order of the
President (p. 45, Sandiganbayan Decision, p. 72, Ibid.). Implementing that order, a memorandum was sent to
Data on August 27,1976, by Public Works Director Desiderio Anolin, directing that all affected lands covered by
the Mangahan Floodway Project shall be excluded from reevaluation and reassessment (Annex A, Exh. DD,
Counter-Affidavit of Data, p. 70, Sandiganbayan Decision, P. 97, Ibid).
Among the lots affected was a 19,004-square-meter portion of a 30,169-square-meter riceland in Pasig
registered in the name of Benjamin Agleham under Original Certificate of Title No. 0097 issued on May 5, 1977
(Exh. H). The land was previously owned by Andrea Arabit and Evaristo Gutierrez, parents of the accused
Natividad Gutierrez.
After Agleham acquired the 3-hectare land in 1973 from the Gutierrez spouses, he had it subdivided into three
(3) lots under plan (LRC) Psd-278456 which was approved by the Land Registration Commission on June 1, 1978
(Entry No. 27399/12071, Exh. H). Lot 1, with an area of 19,004 square meters, is the portion that Agleham,
through Natividad Gutierrez, sold to the Government in 1978 for the Mangahan Floodway Project.
On December 15, 1973, Agleham's property, classified as a "ricefield" with an area of 3.2 hectares, was declared
for taxation under Tax Declaration No. 28246 (Exh-Y). Its assessed value was P4,800 or P0.15 per square meter
(p. 10, Sandiganbayan Decision, p. 37, Ibid.). On February 27, 1978, another Tax Declaration No. 47895 (Exh. Y-1)
was issued for the same ricefield" with a revised area of 30,169 square meters. The declared market value was
P150,850 (or P5 per square meter), and the assessed value was P60,340.
Ten months later, or on December 15, 1978, Tax Declaration No. 47895 was cancelled and replaced by Tax
Declaration No. A018- 00911 (Exh. Y-2) wherein the market value of the same "ricefield," jumped to P301,690
(P10 per square meter). Its assessed value was fixed at P120,680. The description and value of the property,
according to Pedro Ocol, the assistant Municipal Assessor of Pasig, was based on the actual use of the property
(riceland) not on its potential use (p. 13, Sandiganbayan Decision, p. 40, Ibid.). The valuation was based on a
compilation of sales given to the Municipal Assessor's office by the Register of Deeds, from which transactions
the Assessor obtained the average valuation of the properties in the same vicinity (p. 14, Sandiganbayan
Decision, p. 41, Ibid.).
Among those who filed an application for payment (Exhs. FF and FF-1) at the District Engineer's Office was the
accused, Natividad Gutierrez, who was armed with a Special Power of Attorney allegedly executed on February
24,1978 by Benjamin Agleham in her favor (Exhs. C and C-1). She submitted a falsified xerox copy of Tax
Declaration No. 47895 (Exh. B) bearing a false date: December 15,1973 (instead of February 27, 1978) and
describing Agleham's 30,169-square-meter property as "residential" (instead of riceland), with a fair market
value of P2,413,520 or P80 per square meter (instead of P150,845 at P5 per square meter). Its assessed value
appeared to be P724,056 (instead of P60,340). Gutierrez submitted Agleham's Original Certificate of Title No.
0097 (Exh. H-1), the technical description of the property, and a xerox copy of a "Sworn Statement of the True
Current and Fair Market Value of Real Property" required under P.D. No. 76 (Exh. 1). The xerox copy of Tax
Declaration No. 47895 was supposedly certified by the Municipal Treasurer of Pasig, Alfredo Prudencio.
The documents supporting Agleham's claim were "examined" by the Administrative Officer, accused Claudio
Arcaya, who, after initiating them, turned them over to accused Ladislao G. Cruz, A Deed of Absolute Sale for Lot
1 (19,004 square meters valued at P80 per square meter) was prepared by Cruz who also initialed the supporting
documents and transmitted them to District Engr. Data.
On April 20,1978, the Deed of Absolute Sale (Exhs. G and G-1) was signed by Data and Gutierrez (as attorney-in-
fact of Agleham). Thereafter, Data sent the papers to Director Desiderio Anolin of the Bureau of Public Works
who recommended to the Assistant Secretary of Public Works the approval of the Deed of Sale (Exh. G-1).
Afterwards, the documents were returned to Data's office for the transfer of title to the Government. On June 8,
1978, the sale was registered and Transfer Certificate of Title No. T-12071 (Exh. T) was issued in the name of the
Government.
General Voucher (Exh. S) No. 85-2-7809-52 dated "9/29/78" for the amount of P1,520,320 bore fourth
certifications of. (1) Cruz as Senior Civil Engineer; (2) Priscillo G. Fernando as Supervising Civil Engineer II; (3)
Cresencio Data as District Engineer II and (4) Cesar V. Franco as Project Acting Accountant (p. 56, Sandiganbayan
Decision, p. 83, Ibid.).
On October 23, 1978, the voucher and its supporting documents were pre-audited and approved for payment by
the accused, Amado C. Arias, as auditor of the Engineering District. The next day, October 24, 1978, sixteen (16)
PNB checks with Serial Nos. 188532 to 188547, inclusive (Exhs. X to X-1 5), for the total sum of Pl,520,320.00
were issued to Gutierrez as payment for Agleham's 19,004-square-meter lot.
In October, 1979, an investigation was conducted by the Ministry of National Defense on the gross overpricing of
Agleham's property. During the investigation, sworn statements were taken from Alfredo Prudencio, Municipal
Treasurer of Pasig (Exh. AA), Pedro Ocol, Assistant Municipal Assessor of Pasig (Exh. BB), and the accused Claudio
Arcaya (Exh. EE). Prudencio denied having issued or signed the certification dated September 14,1978 (Exh. J),
attesting that Agleham's property covered by Tax Declaration No. 47895 had a market value of P2,413,520 and
that the taxes had been paid from 1975 to 1978. Prudencio also impugned the initial (purporting to be that of his
subordinate Ruben Gatchalian, Chief of the Land Tax Division) that was affixed below Prudencio's typewritten
name in Exhibit J. Both Prudencio and Gatchalian disowned the typewritten certification. They declared that such
certifications are usually issued by their office on mimeographed forms (Exh. J-1).
Assistant Municipal Assessor Pedro Ocol produced and Identified the original or genuine Tax Declaration No.
47895 dated February 27, 1978, and a certified copy thereof (Exh. Y-1). Therein, Agleham's property of 30,169
square meters was classified as a "ricefield" and appraised at P5 per square meter, with an assessed value of
P60,340 and a market value of PI 50,850. Ocol testified that the supposed xerox copy of Tax Declaration No.
47895 (Exh. B), which Gutierrez submitted as one of the supporting documents of the general voucher (Exh. S),
was fake, because of the following tell-tale signs:
(1) the tax declaration number was typewritten, not machine numbered as in the genuine tax declaration,
Exhibit Y;
(2) the stampmark of registration was antedated to December 15, 1973 in the fake, instead of the correct date
February 27, 1978-- in the genuine tax declaration;
(3) the classification of the property was "residential," instead of "ricefield" which is its classification in the
genuine document; and
(4) the lot was over priced at P80 per square meter in the fake tax declaration, instead of the appraised value of
only P5 per square meter appearing in the genuine declaration.
Also found to be fake was Tax Declaration No. 49948 in the name of the Republic of the Philippines (Exhs. K and
K-1). The genuine Tax Declaration No. 49948 (Exhs. U and V-2) was actually filed on October 18, 1978 in the
names of the spouses Moises Javillonar and Sofia Andres, for their 598-square-meters' residential property with
a declared market value of P51,630.
The Agleham deed of sale was pre-audited by the auditor of the Rizal Engineering District, Amado Arias, who
approved the payment of Pl,520,320 to Gutierrez without questioning the fact that the amount of the purchase
price therein had been altered, i.e., "snow-flaked (sic) and later superimposed by the amount of P1,520,320 in
words and figures" (p. 71, Sandiganbayan Decision, p. 98, Ibid.), nor checking the veracity of the supporting
documents listed at the back of the General Voucher (Exh. S), numbering fifteen (15) in all, among which were:
(1) the fake Tax Declaration No. 47895 showing that the value of the land was P80 per square meter (Exh. B);
(2) fake Tax Declaration No. 49948 In the name of the Republic of the Philippines (Exh. K)
(3) the forged certification of Municipal Treasurer Prudencio that the fair market value of 'the land was P100 per
square meter (Exh. J);
(4) a false certification (Exh. D) dated September 19, 1978 signed by accused Cruz, Jose, and Fernando, certifying
that the Agleham property was upon ocular inspection by them, found to be "residential;"
(5) a falsely dated certification where the original date was erased and a false date (February 15, 1978) was
superimposed (Exh.E), issued by Engr. Fernando pursuant to DPWTC Circular No. 557, certifying that he had
examined the real estate tax receipts of the Agleham property for the last three (3) years;
(6) the technical description of the land (Exhs. F and F-1) attached to the deed of sale dated April 20, 1978 was
not an approved technical description for the subdivision survey executed by Geodetic Engineer Cipriano C. Caro
was verified and approved by the Land Registration Commission on May 28,1978 only. There were "substantial
variations" noted by the Sandiganbayan between the approved technical description and the technical
description of the land in the deed of sale (p. 61, Sandiganbayan Decision, p. 88, Ibid.);
(7) the special power of attorney dated February 24, 1978, supposedly given to Gutierrez by Agleham (Exhs. C, C-
1) bore a fictitious residence certificate Agleham (p. 64, Sandiganbayan Decision, p. 91, Ibid.); and
(8) the fake Sworn Statement on the Current and Fair Market Value of Real Properties (Exh. Z) dated October 1,
1973, contained a forged signature of Agleham, presumably made by Gutierrez herself The Sandiganbayan
observed that Agleham's supposed signature "appears to be identical to accused Gutierrez' signatures in the
General Voucher (Exh. S), in the release and Quitclaim which she signed in favor of Agleham on July 20, 1983
(Exh. CC), and in her affidavits (Exhs. FF and FF-1)." (pp. 64-65, Sandiganbayan Decision, pp. 91-92, Ibid.).
After payment of the Agleham claim, all the supporting documents were kept by Arias. Even after he had been
replaced by Julito Pesayco on September 1, 1981, as auditor of the Rizal Engineering District, he did not turn over
the documents to Pesayco. It was only on June 23, 1982, after this case had been filed in the Sandiganbayan and
the trial had begun, that Arias delivered them to Pesayco (Exh. T-1).
After a trial lasting nearly six years, the Sandiganbayan rendered a 78-page decision on November 16, 1987,
whose dispositive portion reads as follows:
WHEREFORE, judgment is hereby rendered finding accused Natividad G. Gutierrez, Cresencio
D. Data, Ladislao G. Cruz, Carlos L. Jose, Claudio H. Arcaya and Amado C. Arias GUILTY beyond
reasonable doubt of the violation of Section 3, paragraph (e) of Republic Act No. 3019, as
ascended, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby
sentences each of them to suffer the penalty of imprisonment for THREE (3) YEARS, as
minimum to SIX (6) YEARS, as maximum; to further suffer perpetual disqualification from
public office; to indemnify jointly and severally, the Government of the Republic of the
Philippines in the amount of P1,425,300, and to pay their proportional costs of this action. (p.
104, Rollo of G.R. No. 81563.)
Both Arias and Data appealed.
Arias anchors his petition for review of the Sandiganbayan's decision (G.R. No. 81563) on his contention that the
court's findings that he conspired with his co-accused and that he was grossly negligent are based on
misapprehension of facts, speculation, surmise, and conjecture.
Data's main defense is that the acquisition of the Agleham property was the work of the committee of Prescillo
Fernando iii which he did not take an active part, and that the price which the government paid for it was
reasonable. Hence, it uttered no jury in the transaction.
In his consolidated brief or comment for the State, the Solicitor General recommends the acquittal of the
petitioners because the Agleham property was allegedly not grossly overpriced.
After deliberating on the petitions in these cases, we find no error in the decision under review. The
Sandiganbayan did not err in finding that the petitioners conspired with their co-accused to cause injury to the
Government and to unduly favor the lot owner, Agleham.
A conspiracy need not be proved by direct evidence of the acts charged, but may and generally must be proven
by a number of indefinite acts, conditions and circumstances (People vs. Maralit, G.R. No. 71143, Sept. 19,1988;
People vs. Roca, G.R. No. 77779, June 27, 1988).
This case presents a conspiracy of silence and inaction where chiefs of office who should have been vigilant to
protect the interest of the Government in the purchase of Agleham's two-hectare riceland, accepted as gospel
truth the certifications of their subordinates, and approved without question the million-peso purchase which,
by the standards prevailing in 1976-78, should have pricked their curiosity and prompted them to make inquiries
and to verify the authenticity of the documents presented to them for approval. The petitioners kept silent when
they should have asked questions they looked the other way when they should have probed deep into the
transaction.
Since it was too much of a coincidence that both petitioners were negligent at the same time over the same
transaction, the Sandiganbayan was justified in concluding that they connived and conspired to act in that
manner to approve the illegal transaction which would favor the seller of the land and defraud the Government.
We cannot accept Arias' excuse that because the deed of sale had been signed and the property transferred to
the Government which received a title in its name, there was nothing else for him to do but approve the voucher
for payment. The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant
expenditures of government funds.
The auditorial function of an auditor, as a representative of the Commission on Audit, comprises three aspects:
(1) examination; (2) audit: and (3) settlement of the accounts, funds, financial transactions and resources of the
agencies under their respective audit jurisdiction (Sec. 43, Government Auditing Code of the Phil.). Examination,
as applied to auditing, means "to probe records, or inspect securities or other documents; review procedures,
and question persons, all for the purpose of arriving at an opinion of accuracy, propriety, sufficiency, and the
like." (State Audit Code of the Philippines, Annotated by Tantuico, 1982 Ed., p. 57.)
Arias admitted that he did not check or verify the papers supporting the general voucher that was submitted to
him for payment of Pl,520,320 to Agleham or his attorney-in-fact, Natividad Gutierrez. Arias did not question any
person for the purpose of determining the accuracy and integrity of the documents submitted to him and the
reasonableness of the price that the Government was paying for the less than two-hectare riceland. We reject
his casuistic explanation that since his subordinates had passed upon the transaction, he could assume that it
was lawful and regular for, if he would be a mere rubber stamp for his subordinates, his position as auditor
would be useless and unnecessary.
We make the same observation concerning District Engineer Cresencio Data who claims innocence because he
allegedly did not take any direct and active participation in the acquisition of the Agleham property, throwing the
blame on the committee which he created, composed of Fernando, Asuncion, Mendoza, Cruz, Hucom and Jose
that negotiated with the property owners for the purchase of properties on the path of the Mangahan Floodway
Project. He in effect would hide under the skirt of the committee which he himself selected and to which he
delegated the task that was assigned to his office to identify the lots that would be traversed by the floodway
project, gather and verify documents, make surveys, negotiate with the owners for the price, prepare the deeds
of sale, and process claims for payment. By appointing the committee, he did not cease to be responsible for the
implementation of the project. Under the principle of command responsibility, he was responsible for the
manner in which the committee performed its tasks for it was he who in fact signed the deed of sale prepared by
the committee. By signing the deed of sale and certifications prepared for his signature by his committee, he in
effect, made their acts his own. He is, therefore, equally guilty with those members of the committee (Fernando,
Cruz and Jose) who accepted the fake tax declarations and made false certifications regarding the use and value
of the Agleham property.
The Solicitor General has pointed out that Data signed, but did not approve, the deed of sale of Agleham's
property because the approval thereof was the prerogative of the Secretary of Public Works. It should not be
overlooked, however, that Data's signature on the deed of sale was equivalent to an attestation that the
transaction was fair, honest and legal. It was he who was charged with the task of implementing the Mangahan
Floodway Project within his engineering district.
We find no merit in the Solicitor General's argument that the Agleham riceland was not overpriced because the
price of P80 per square meter fixed in the deed of sale was reasonable, hence, the petitioners are not guilty of
having caused undue injury and prejudice to the Government, nor of having given unwarranted benefits to the
property owner and/or his attorney-in-fact, Gutierrez. He further argues that the valuation in the owner's
genuine tax declaration may not be used as a standard in determining the fair market value of the property
because PD Nos. 76 and 464 (making it mandatory in expropriation cases to fix the price at the value of the
property as declared by the owner, or as determined by the assessor, whichever is lower), were declared null
and void by this Court in the case of Export Processing Zone Authority (EPZA) vs. Dulay, 149 SCRA 305, and other
related cases.
That argument is not well taken because PD Nos. 76 and 464 (before they were nullified) applied to the
expropriation of property for public use. The acquisition of Agleham's riceland was not done by expropriation but
through a negotiated sale. In the course of the negotiations, there was absolutely no allegation nor proof that
the price of P80 per square meter was its fair market value in 1978, i.e., eleven (11) years ago. What the accused
did was to prove the value of the land through fake tax declarations (Exhs. B, F, K), false certifications (Exhs. J, D
and E) and a forged sworn statement on the current and fair market value of the real property (Exh. Z) submitted
by the accused in support of the deed of sale. Because fraudulent documents were used, it may not be said that
the State agreed to pay the price on the basis of its fairness, for the Government was in fact deceived concerning
the reasonable value of the land.
When Ocol testified in 1983 that P80 was a reasonable valuation for the Agleham's land, he did not clarify that
was also its reasonable value in 1975, before real estate values in Pasig soared as a result of the implementation
of the Mangahan Floodway Project. Hence, Ocol's testimony was insufficient to rebut the valuation in Agleham's
genuine 1978 Tax Declaration No. 47895 that the fair valuation of the riceland then was only P5 per square
meter. A Tax Declaration is a guide or indicator of the reasonable value of the property (EPZA vs. Dulay, supra).
The petitioner's partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes
to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate
omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a
mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstance
instances.
WHEREFORE, I vote to affirm in toto the decision of the Sandiganbayan in SB Crim. Case No. 2010, with costs
against the petitioners, Amado Arias and Cresencio Data.
Feliciano, Padilla, Sarmiento, and Regalado, JJ., concur.
Separate Opinions
GRIÑO-AQUINO, J., dissenting:
The lone issue in these consolidated petitions for review is whether the Sandiganbayan committed a reversible
error in convicting the petitioners, Amado C. Arias and Cresencio D. Data, of having violated Section 3, paragraph
(e), of the Anti Graft and Corrupt Practices Act, in connection with the scandalous overpricing of land purchased
by the Government as right of way for its Mangahan Floodway Project in Pasig, Rizal. The pertinent provision of
the Anti-Graft Law reads as follows:
SEC. 3. Corrupt Practices of Public Officers-In addition to acts or omissions of public officers
already penalized by existing law. the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
xxxxxxxxx
(e) Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other concessions.
The amended information against them, to which they pleaded not guilty, alleged:
That on or about the period covering April, 1978 to October 1978, in Rosario, Pasig, Metro
Manila, Philippines, and with the jurisdiction of this Honorable Court, accused Cresencio D.
Data, being then the district Engineer of the province of Rizal, Ministry of Public Works, and
as such, headed and supervised the acquisition of private lands for the right-of-way of the
Mangahan Floodway Project of the Government at Sitio Mangahan, Rosario, Pasig, Metro
Manila; accused Priscillo G. Fernando, then the Supervising Engineer of the Office of the
District Engineer of Rizal, Ministry of Public Works who acted as assistant of accused
Cresencio D. Data in the Mangahan Floodway Project; accused Ladislao G. Cruz, then the
Senior Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works, who
was charged with the acquisition of lots needed for the Mangahan Floodway Project;
accused Carlos L. Jose then the Instrumentman of the office of the District Engineer of Rizal,
Ministry of Public Works who acted as the surveyor of the Mangahan Floodway Project;
accused Claudio H. Arcaya, then the Administrative Officer I of the Rizal District Engineer's
Office, Ministry of Public Works who passed upon all papers and documents pertaining to
private lands acquired by the Government for the Mangahan Floodway Project; and
 accused Amado C. Arias, then the Auditor of Rizal Engineering District, Pasig, Metro Manila,
who passed upon and approved in audit the acquisition as well as the payment of lands
needed for the Mangahan Floodway Project all taking advantage of their public and official
positions, and conspiring, confederating and confabulating with accused Natividad C.
Gutierrez, the attorney-in-fact of Benjamin Agleham, who is the registered owner of a parcel
of land situated at Rosario, Pasig, Metro Manila and covered by Original Certificate of Title
No. 0097, with accused Ladislao G. Cruz, Carlos L. -Jose and Claudio Arias, acting with evident
bad faith, while accused Cresencio D. Data, Priscillo G. Fernando and Amado C. Arias, acting
with manifest partiality in the discharge of their official public and/or administrative
functions, did then and there wilfully, unlawfully and feloniously cause undue injury, damage
and prejudice to the Government of the Republic of the Philippines by causing, allowing
and/or approving the illegal and irregular disbursement and expenditure of public funds in
favor of and in the name of Benjamin P. Agleham in the amount of P1,520,320.00 under
General Voucher No. 8-047, supported by a certification, dated September 14, 1978, which
was purportedly issued by the Municipal Treasurer of Pasig, and certified xerox copies of Tax
Declarations Nos. 47895 and A-018-0091 1, both in the name of Benjamin P. Agleham, and an
alleged owner's copy of Tax Declaration No. 49948, in the name of the Republic of the
Philippines, said supporting documents having been falsified by the accused to make it
appear that the land mentioned in the above-stated supporting papers is a residential land
with a market value of P80.00 per square meter and that 19,004 square meters thereof were
transferred in the name of the Government of the Republic of the Philippines under Tax
Declaration No. 49948, when in truth and in fact, the afore-stated land is actually a riceland
with a true and actual market value of P5.00 per square meter only and Tax Declaration No.
49948 was truly and officially registered in the names of spouses Moises Javillonar and Sofia
San Andres, not in the name of the Government, and refers to a parcel of land at Sagad,
Pasig, Metro Manila; that the foregoing falsities were committed by the accused to conceal
the fact that the true and actual pace of the 19,004 square meters of land of Benjamin P.
Agleham, which was acquired in behalf of the Government by way of negotiated purchase by
the accused officials herein for the right of way of the Mangahan Floodway project at an
overprice of P1,520,320.00 was P92,020.00 only; and finally, upon receipt of the overpriced
amount, the accused misappropriated, converted and misapplied the excess of the true and
actual value of the above-mentioned land, i.e., P1,428,300.00 for their own personal needs,
uses and benefits, to the damage and prejudice of the Government in the amount of
P1,428,300.00. (pp. 2931, Rollo of G.R. No. 81563.)
Priscillo Fernando did not face trial for he has remained at large, his present whereabouts being unknown (p. 48,
Sandiganbayan Decision, p. 75, Rollo of G.R. No. 81563).
In 1975, the Bureau of Public Works initiated the Mangahan Floodway Project to ease the perennial floods
affecting the towns of Marikina and Pasig, Metro Manila. The project would traverse the northern and southern
portions of Ortigas Avenue in Pasig, Metro Manila (Exhibits A and A-1). An announcement was published in
leading newspapers advising affected property owners to file their applications for payment at the District
Engineer's Office (p. 29, Sandiganbayan Decision, p. 56, Ibid.).
The implementation of the Mangahan Floodway Project was entrusted to the Pasig Engineering District headed
by the District Engineer, Cresencio Data. He formed a committee composed of Supervising Civil Engineer Priscillo
Fernando, as over-all in charge, Alfonso Mendoza and Pedro Hucom for acquisition of improvements, and
Instrumentman Carlos Jose for surveys (p. 26, Sandiganbayan Decision, p. 53, Ibid.). The team was tasked to
notify lot owners affected by the project of the impending expropriation of their properties and to receive and
process applications for payment.
The reclassification of all lands around the Mangahan Floodway Project was suspended in 1975 by order of the
President (p. 45, Sandiganbayan Decision, p. 72, Ibid.). Implementing that order, a memorandum was sent to
Data on August 27,1976, by Public Works Director Desiderio Anolin, directing that all affected lands covered by
the Mangahan Floodway Project shall be excluded from reevaluation and reassessment (Annex A, Exh. DD,
Counter-Affidavit of Data, p. 70, Sandiganbayan Decision, P. 97, Ibid).
Among the lots affected was a 19,004-square-meter portion of a 30,169-square-meter riceland in Pasig
registered in the name of Benjamin Agleham under Original Certificate of Title No. 0097 issued on May 5, 1977
(Exh. H). The land was previously owned by Andrea Arabit and Evaristo Gutierrez, parents of the accused
Natividad Gutierrez.
After Agleham acquired the 3-hectare land in 1973 from the Gutierrez spouses, he had it subdivided into three
(3) lots under plan (LRC) Psd-278456 which was approved by the Land Registration Commission on June 1, 1978
(Entry No. 27399/12071, Exh. H). Lot 1, with an area of 19,004 square meters, is the portion that Agleham,
through Natividad Gutierrez, sold to the Government in 1978 for the Mangahan Floodway Project.
On December 15, 1973, Agleham's property, classified as a "ricefield" with an area of 3.2 hectares, was declared
for taxation under Tax Declaration No. 28246 (Exh-Y). Its assessed value was P4,800 or P0.15 per square meter
(p. 10, Sandiganbayan Decision, p. 37, Ibid.). On February 27, 1978, another Tax Declaration No. 47895 (Exh. Y-1)
was issued for the same ricefield" with a revised area of 30,169 square meters. The declared market value was
P150,850 (or P5 per square meter), and the assessed value was P60,340.
Ten months later, or on December 15, 1978, Tax Declaration No. 47895 was cancelled and replaced by Tax
Declaration No. A018- 00911 (Exh. Y-2) wherein the market value of the same "ricefield," jumped to P301,690
(P10 per square meter). Its assessed value was fixed at P120,680. The description and value of the property,
according to Pedro Ocol, the assistant Municipal Assessor of Pasig, was based on the actual use of the property
(riceland) not on its potential use (p. 13, Sandiganbayan Decision, p. 40, Ibid.). The valuation was based on a
compilation of sales given to the Municipal Assessor's office by the Register of Deeds, from which transactions
the Assessor obtained the average valuation of the properties in the same vicinity (p. 14, Sandiganbayan
Decision, p. 41, Ibid.).
Among those who filed an application for payment (Exhs. FF and FF-1) at the District Engineer's Office was the
accused, Natividad Gutierrez, who was armed with a Special Power of Attorney allegedly executed on February
24,1978 by Benjamin Agleham in her favor (Exhs. C and C-1). She submitted a falsified xerox copy of Tax
Declaration No. 47895 (Exh. B) bearing a false date: December 15,1973 (instead of February 27, 1978) and
describing Agleham's 30,169-square-meter property as "residential" (instead of riceland), with a fair market
value of P2,413,520 or P80 per square meter (instead of P150,845 at P5 per square meter). Its assessed value
appeared to be P724,056 (instead of P60,340). Gutierrez submitted Agleham's Original Certificate of Title No.
0097 (Exh. H-1), the technical description of the property, and a xerox copy of a "Sworn Statement of the True
Current and Fair Market Value of Real Property" required under P.D. No. 76 (Exh. 1). The xerox copy of Tax
Declaration No. 47895 was supposedly certified by the Municipal Treasurer of Pasig, Alfredo Prudencio.
The documents supporting Agleham's claim were "examined" by the Administrative Officer, accused Claudio
Arcaya, who, after initiating them, turned them over to accused Ladislao G. Cruz, A Deed of Absolute Sale for Lot
1 (19,004 square meters valued at P80 per square meter) was prepared by Cruz who also initialed the supporting
documents and transmitted them to District Engr. Data.
On April 20,1978, the Deed of Absolute Sale (Exhs. G and G-1) was signed by Data and Gutierrez (as attorney-in-
fact of Agleham). Thereafter, Data sent the papers to Director Desiderio Anolin of the Bureau of Public Works
who recommended to the Assistant Secretary of Public Works the approval of the Deed of Sale (Exh. G-1).
Afterwards, the documents were returned to Data's office for the transfer of title to the Government. On June 8,
1978, the sale was registered and Transfer Certificate of Title No. T-12071 (Exh. T) was issued in the name of the
Government.
General Voucher (Exh. S) No. 85-2-7809-52 dated "9/29/78" for the amount of P1,520,320 bore fourth
certifications of. (1) Cruz as Senior Civil Engineer; (2) Priscillo G. Fernando as Supervising Civil Engineer II; (3)
Cresencio Data as District Engineer II and (4) Cesar V. Franco as Project Acting Accountant (p. 56, Sandiganbayan
Decision, p. 83, Ibid.).
On October 23, 1978, the voucher and its supporting documents were pre-audited and approved for payment by
the accused, Amado C. Arias, as auditor of the Engineering District. The next day, October 24, 1978, sixteen (16)
PNB checks with Serial Nos. 188532 to 188547, inclusive (Exhs. X to X-1 5), for the total sum of Pl,520,320.00
were issued to Gutierrez as payment for Agleham's 19,004-square-meter lot.
In October, 1979, an investigation was conducted by the Ministry of National Defense on the gross overpricing of
Agleham's property. During the investigation, sworn statements were taken from Alfredo Prudencio, Municipal
Treasurer of Pasig (Exh. AA), Pedro Ocol, Assistant Municipal Assessor of Pasig (Exh. BB), and the accused Claudio
Arcaya (Exh. EE). Prudencio denied having issued or signed the certification dated September 14,1978 (Exh. J),
attesting that Agleham's property covered by Tax Declaration No. 47895 had a market value of P2,413,520 and
that the taxes had been paid from 1975 to 1978. Prudencio also impugned the initial (purporting to be that of his
subordinate Ruben Gatchalian, Chief of the Land Tax Division) that was affixed below Prudencio's typewritten
name in Exhibit J. Both Prudencio and Gatchalian disowned the typewritten certification. They declared that such
certifications are usually issued by their office on mimeographed forms (Exh. J-1).
Assistant Municipal Assessor Pedro Ocol produced and Identified the original or genuine Tax Declaration No.
47895 dated February 27, 1978, and a certified copy thereof (Exh. Y-1). Therein, Agleham's property of 30,169
square meters was classified as a "ricefield" and appraised at P5 per square meter, with an assessed value of
P60,340 and a market value of PI 50,850. Ocol testified that the supposed xerox copy of Tax Declaration No.
47895 (Exh. B), which Gutierrez submitted as one of the supporting documents of the general voucher (Exh. S),
was fake, because of the following tell-tale signs:
(1) the tax declaration number was typewritten, not machine numbered as in the genuine tax declaration,
Exhibit Y;
(2) the stampmark of registration was antedated to December 15, 1973 in the fake, instead of the correct date
February 27, 1978-- in the genuine tax declaration;
(3) the classification of the property was "residential," instead of "ricefield" which is its classification in the
genuine document; and
(4) the lot was over priced at P80 per square meter in the fake tax declaration, instead of the appraised value of
only P5 per square meter appearing in the genuine declaration.
Also found to be fake was Tax Declaration No. 49948 in the name of the Republic of the Philippines (Exhs. K and
K-1). The genuine Tax Declaration No. 49948 (Exhs. U and V-2) was actually filed on October 18, 1978 in the
names of the spouses Moises Javillonar and Sofia Andres, for their 598-square-meters' residential property with
a declared market value of P51,630.
The Agleham deed of sale was pre-audited by the auditor of the Rizal Engineering District, Amado Arias, who
approved the payment of Pl,520,320 to Gutierrez without questioning the fact that the amount of the purchase
price therein had been altered, i.e., "snow-flaked (sic) and later superimposed by the amount of P1,520,320 in
words and figures" (p. 71, Sandiganbayan Decision, p. 98, Ibid.), nor checking the veracity of the supporting
documents listed at the back of the General Voucher (Exh. S), numbering fifteen (15) in all, among which were:
(1) the fake Tax Declaration No. 47895 showing that the value of the land was P80 per square meter (Exh. B);
(2) fake Tax Declaration No. 49948 In the name of the Republic of the Philippines (Exh. K)
(3) the forged certification of Municipal Treasurer Prudencio that the fair market value of 'the land was P100 per
square meter (Exh. J);
(4) a false certification (Exh. D) dated September 19, 1978 signed by accused Cruz, Jose, and Fernando, certifying
that the Agleham property was upon ocular inspection by them, found to be "residential;"
(5) a falsely dated certification where the original date was erased and a false date (February 15, 1978) was
superimposed (Exh.E), issued by Engr. Fernando pursuant to DPWTC Circular No. 557, certifying that he had
examined the real estate tax receipts of the Agleham property for the last three (3) years;
(6) the technical description of the land (Exhs. F and F-1) attached to the deed of sale dated April 20, 1978 was
not an approved technical description for the subdivision survey executed by Geodetic Engineer Cipriano C. Caro
was verified and approved by the Land Registration Commission on May 28,1978 only. There were "substantial
variations" noted by the Sandiganbayan between the approved technical description and the technical
description of the land in the deed of sale (p. 61, Sandiganbayan Decision, p. 88, Ibid.);
(7) the special power of attorney dated February 24, 1978, supposedly given to Gutierrez by Agleham (Exhs. C, C-
1) bore a fictitious residence certificate Agleham (p. 64, Sandiganbayan Decision, p. 91, Ibid.); and
(8) the fake Sworn Statement on the Current and Fair Market Value of Real Properties (Exh. Z) dated October 1,
1973, contained a forged signature of Agleham, presumably made by Gutierrez herself The Sandiganbayan
observed that Agleham's supposed signature "appears to be Identical to accused Gutierrez' signatures in the
General Voucher (Exh. S), in the release and Quitclaim which she signed in favor of Agleham on July 20, 1983
(Exh. CC), and in her affidavits (Exhs. FF and FF-1)." (pp. 64-65, Sandiganbayan Decision, pp. 91-92, Ibid.).
After payment of the Agleham claim, all the supporting documents were kept by Arias. Even after he had been
replaced by Julito Pesayco on September 1, 1981, as auditor of the Rizal Engineering District, he did not turn over
the documents to Pesayco. It was only on June 23, 1982, after this case had been filed in the Sandiganbayan and
the trial had begun, that Arias delivered them to Pesayco (Exh. T-1).
After a trial lasting nearly six years, the Sandiganbayan rendered a 78-page decision on November 16, 1987,
whose dispositive portion reads as follows:
WHEREFORE, judgment is hereby rendered finding accused Natividad G. Gutierrez, Cresencio
D. Data, Ladislao G. Cruz, Carlos L. Jose, Claudio H. Arcaya and Amado C. Arias GUILTY beyond
reasonable doubt of the violation of Section 3, paragraph (e) of Republic Act No. 3019, as
ascended, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby
sentences each of them to suffer the penalty of imprisonment for THREE (3) YEARS, as
minimum to SIX (6) YEARS, as maximum; to further suffer perpetual disqualification from
public office; to indemnify jointly and severally, the Government of the Republic of the
Philippines in the amount of P1,425,300, and to pay their proportional costs of this action. (p.
104, Rollo of G.R. No. 81563.)
Both Arias and Data appealed.
Arias anchors his petition for review of the Sandiganbayan's decision (G.R. No. 81563) on his contention that the
court's findings that he conspired with his co-accused and that he was grossly negligent are based on
misapprehension of facts, speculation, surmise, and conjecture.
Data's main defense is that the acquisition of the Agleham property was the work of the committee of Prescillo
Fernando iii which he did not take an active part, and that the price which the government paid for it was
reasonable. Hence, it uttered no jury in the transaction.
In his consolidated brief or comment for the State, the Solicitor General recommends the acquittal of the
petitioners because the Agleham property was allegedly not grossly overpriced.
After deliberating on the petitions in these cases, we find no error in the decision under review. The
Sandiganbayan did not err in finding that the petitioners conspired with their co-accused to cause injury to the
Government and to unduly favor the lot owner, Agleham.
A conspiracy need not be proved by direct evidence of the acts charged, but may and generally must be proven
by a number of indefinite acts, conditions and circumstances (People vs. Maralit, G.R. No. 71143, Sept. 19,1988;
People vs. Roca, G.R. No. 77779, June 27, 1988).
This case presents a conspiracy of silence and inaction where chiefs of office who should have been vigilant to
protect the interest of the Government in the purchase of Agleham's two-hectare riceland, accepted as gospel
truth the certifications of their subordinates, and approved without question the million-peso purchase which,
by the standards prevailing in 1976-78, should have pricked their curiosity and prompted them to make inquiries
and to verify the authenticity of the documents presented to them for approval. The petitioners kept silent when
they should have asked questions they looked the other way when they should have probed deep into the
transaction.
Since it was too much of a coincidence that both petitioners were negligent at the same time over the same
transaction, the Sandiganbayan was justified in concluding that they connived and conspired to act in that
manner to approve the illegal transaction which would favor the seller of the land and defraud the Government.
We cannot accept Arias' excuse that because the deed of sale had been signed and the property transferred to
the Government which received a title in its name, there was nothing else for him to do but approve the voucher
for payment. The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant
expenditures of government funds.
The auditorial function of an auditor, as a representative of the Commission on Audit, comprises three aspects:
(1) examination; (2) audit: and (3) settlement of the accounts, funds, financial transactions and resources of the
agencies under their respective audit jurisdiction (Sec. 43, Government Auditing Code of the Phil.). Examination,
as applied to auditing, means "to probe records, or inspect securities or other documents; review procedures,
and question persons, all for the purpose of arriving at an opinion of accuracy, propriety, sufficiency, and the
like." (State Audit Code of the Philippines, Annotated by Tantuico, 1982 Ed., p. 57.)
Arias admitted that he did not check or verify the papers supporting the general voucher that was submitted to
him for payment of Pl,520,320 to Agleham or his attorney-in-fact, Natividad Gutierrez. Arias did not question any
person for the purpose of determining the accuracy and integrity of the documents submitted to him and the
reasonableness of the price that the Government was paying for the less than two-hectare riceland. We reject
his casuistic explanation that since his subordinates had passed upon the transaction, he could assume that it
was lawful and regular for, if he would be a mere rubber stamp for his subordinates, his position as auditor
would be useless and unnecessary.
We make the same observation concerning District Engineer Cresencio Data who claims innocence because he
allegedly did not take any direct and active participation in the acquisition of the Agleham property, throwing the
blame on the committee which he created, composed of Fernando, Asuncion, Mendoza, Cruz, Hucom and Jose
that negotiated with the property owners for the purchase of properties on the path of the Mangahan Floodway
Project. He in effect would hide under the skirt of the committee which he himself selected and to which he
delegated the task that was assigned to his office to Identify the lots that would be traversed by the floodway
project, gather and verify documents, make surveys, negotiate with the owners for the price, prepare the deeds
of sale, and process claims for payment. By appointing the committee, he did not cease to be responsible for the
implementation of the project. Under the principle of command responsibility, he was responsible for the
manner in which the committee performed its tasks for it was he who in fact signed the deed of sale prepared by
the committee. By signing the deed of sale and certifications prepared for his signature by his committee, he in
effect, made their acts his own. He is, therefore, equally guilty with those members of the committee (Fernando,
Cruz and Jose) who accepted the fake tax declarations and made false certifications regarding the use and value
of the Agleham property.
The Solicitor General has pointed out that Data signed, but did not approve, the deed of sale of Agleham's
property because the approval thereof was the prerogative of the Secretary of Public Works. It should not be
overlooked, however, that Data's signature on the deed of sale was equivalent to an attestation that the
transaction was fair, honest and legal. It was he who was charged with the task of implementing the Mangahan
Floodway Project within his engineering district.
We find no merit in the Solicitor General's argument that the Agleham riceland was not overpriced because the
price of P80 per square meter fixed in the deed of sale was reasonable, hence, the petitioners are not guilty of
having caused undue injury and prejudice to the Government, nor of having given unwarranted benefits to the
property owner and/or his attorney-in-fact, Gutierrez. He further argues that the valuation in the owner's
genuine tax declaration may not be used as a standard in determining the fair market value of the property
because PD Nos. 76 and 464 (making it mandatory in expropriation cases to fix the price at the value of the
property as declared by the owner, or as determined by the assessor, whichever is lower), were declared null
and void by this Court in the case of Export Processing Zone Authority (EPZA) vs. Dulay, 149 SCRA 305, and other
related cases.

That argument is not well taken because PD Nos. 76 and 464 (before they were nullified) applied to the
expropriation of property for public use. The acquisition of Agleham's riceland was not done by expropriation but
through a negotiated sale. In the course of the negotiations, there was absolutely no allegation nor proof that
the price of P80 per square meter was its fair market value in 1978, i.e., eleven (11) years ago. What the accused
did was to prove the value of the land through fake tax declarations (Exhs. B, F, K), false certifications (Exhs. J, D
and E) and a forged sworn statement on the current and fair market value of the real property (Exh. Z) submitted
by the accused in support of the deed of sale. Because fraudulent documents were used, it may not be said that
the State agreed to pay the price on the basis of its fairness, for the Government was in fact deceived concerning
the reasonable value of the land.

When Ocol testified in 1983 that P80 was a reasonable valuation for the Agleham's land, he did not clarify that
was also its reasonable value in 1975, before real estate values in Pasig soared as a result of the implementation
of the Mangahan Floodway Project. Hence, Ocol's testimony was insufficient to rebut the valuation in Agleham's
genuine 1978 Tax Declaration No. 47895 that the fair valuation of the riceland then was only P5 per square
meter. A Tax Declaration is a guide or indicator of the reasonable value of the property (EPZA vs. Dulay, supra).

The petitioner's partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes
to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate
omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a
mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstance
instances.

WHEREFORE, I vote to affirm in toto the decision of the Sandiganbayan in SB Crim. Case No. 2010, with costs
against the petitioners, Amado Arias and Cresencio Data.

Feliciano, Padilla, Sarmiento and Regalado, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12963 October 25, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
URBANO DOMEN, defendant-appellant.
Leopoldo Rovira for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
The defendant and appellant frankly admits that a wound inflicted by him with a tuba knife on the right arm of
Victoriano Gadlit caused the death of the latter. The appellant, however, advances the claim, that he should be
exempted from criminal liability because of having acted in defense of his person. Let us, therefore, examine the
evidence to ascertain if the decision of the trial court finding the defendant and appellant guilty of homicide
should be sustained or whether as contended by counsel and as recommended by the Attorney-General the
defendant should be acquitted.
The widow took the stand for the prosecution and testified that the accused made an unprovoked attack upon
her husband at the foot of the stairway leading up into their house, and that this attack was also witnessed by a
neighbor, Angel Pocong. But Angel Pocong testified that he was absent from home at the time in question, and
that all that he knew of the fight was what was told him by the widow. The court found that the widow was
mistaken in her testimony. Not considering, therefore, her testimony, the prosecution has in addition only the
testimony of Filomeno Antipuesto, who told of the accused having admitted that he had wounded the deceased,
and the testimony of Angel Pocong as to the death of the deceased while being carried in a hammock. We must
then perforce rely on the evidence for the defense. From the testimony of two witnesses who claimed to have
seen what occurred and the testimony of the defendant, it appears that the defendant and the deceased
quarrelled about a carabao of the defendant, which the deceased said had gotten into his corn patch; that the
deceased attacked the defendant and struck him with a piece of wood called "Japanese," about a vara in length
and about the size of one's wrist; that the deceased struck at the accused four or five times; and that the
accused did not retreat but struck back wounding the deceased on the forearm.
The facts stated present a close question for the decision. Admitting that there was unlawful aggression on the
part of the deceased, the doubt centers around the point as to whether there was reasonable necessity for the
means employed by the defendant to repel the attack. Resolving, as it is our duty to do, any doubt in favor of the
accused, and passing by well known principles of the criminal law, we come to the case of United States vs.
Molina ([1911] 19 Phil., 227), and the doctrines therein enunciated. In the opinion handed down in this case by
Mr. Justice Mapa, it is held that: (1) During an unlawful attack by another and while a struggle is going on and the
danger to his person or to his life continues, the party assaulted has a right to repel the danger by wounding his
adversary, and if, necessary, to disable him; (2) the fact that a person when assaulted does not flee from his
assailant is not sufficient reason for declining in a proper case to uphold the rational necessity of the means
employed in repelling the illegal attack. 1awphil.net
The first proposition of the Molina opinion is in accord with the settled jurisprudence of this court. (See U. S. vs.
Laurel [1912], 22 Phil., 252; U. S. vs. Patoto [1914], 28 Phil., 535.) The second proposition dealing with the
necessity of retreat by the accused can be further examined in the light of controlling authorities. The ancient
common law rule in homicide was denominated "retreat to the wall." This doctrine makes it the duty of a person
assailed to retreat as far as he can before he is justified in meeting force with force. This principle has now given
way in the United States to the "stand ground when in the right" rule. The Supreme Court of the United States
carefully examined the application of the two doctrines in Beard vs. United States ([1894] 158 U. S., 550). In the
opinion handed down by Mr. Justice Harlan reference is made approvingly to the decision of the Supreme Court
of Ohio in Erwin vs. State ([1876] 29 Ohio St., 186) in which it is said:
It is true that all authorities agree that the taking of life in defense of one's person cannot be either
justified or excused, except on the ground of necessity; and that such necessity must be imminent at
the time; and they also agree that no man can avail himself of such necessity if he brings it upon
himself. The question, then, is simply this: Does the law hold a man who is violently and feloniously
assaulted responsible for having brought such necessity upon himself, on the sole ground that he failed
to fly from his assailant when he might safely have done so? The law, out of tenderness for human life
and the frailties of human nature, will not permit the taking of it to repel a mere trespass, or even to
save life where the assault is provoked; but a true man, who is without fault, is not obliged to fly from
an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily
harm.
Justice Harlan then concludes his opinion with these words:
The defendant was where he had the right to be, when the deceased advanced upon him in a
threatening manner, and with a deadly weapon; and if the accused did not provoked the assault and
had at the time reasonable grounds to believe and in good faith believed, that the deceased intended
to take his life or do him great bodily harm, he was not obliged to retreat, nor consider whether he
could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a
deadly weapon, in such way and with such force as, under all circumstances, he, at the moment,
honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to
protect himself from great bodily injury.
The same Court reexamined and reaffirmed the doctrine in Rowe vs. United States ([1896] 164 U. S., 546).
We can do no better than to paraphrase the language of these well considered opinions for our present purpose.
The accused did not provoke the assault. The accused was where he had a right to be. The law did not require
him to retreat when his assailant was rapidly advancing upon him in a threatening manner with a deadly
weapon. The accused was entitled to do whatever he had reasonable grounds to believe at the time was
necessary to save his life or to protect himself from great bodily harm. The element of practicability made it
impossible for him to determine during the heat of a sudden attack whether he would increase or diminish the
risk to which exposed by standing his ground or stepping aside. His resistance was not disproportionate to the
assault. The wound was inflicted, not on what is usually a vital part of the body but on the arm as one would
naturally strike to defend himself. Viewed from all angles, we believe this is a "proper case" for the exemption of
the accused from criminal liability because of having acted in legitimate defense of his person.

Agreeable to the recommendation of the Attorney-General and in conformity with the proof, judged in
connection with the principles just stated, we must reverse the judgment of the trial court and acquit the
defendant and appellant of the crime charged, with the costs of both instances de officio. So ordered.

Arellano, C. J., Carson, Araullo, and Street, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 189405 November 19, 2014
SHERWIN DELA CRUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and CARLOS ALBERTO L. GONZALES, in behalf of his deceased brother, JEFFREY
WERNHER L. GONZALES, Respondents.
DECISION
PERALTA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul and set aside the
May 7, 2009 Decision1 of the Court of Appeals, in CA-G.R. CV No. 89257, finding petitioner Sherwin Dela Cruz
guilty beyond reasonable doubt of the crime of Homicide, and its August 19, 2009 Resolution2 denying his
motion for reconsideration.
Petitioner was charged with the crime of Homicide in an Information3 dated March 2, 2005, which alleged:
That on or about the 1st day of January 2005, in the City of Makati, Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused, with intent to kill and with the use of an unlicensed firearm, did
then and there wilfully, unlawfully and feloniously attack, assault and shoot one JEFFREY WERNHER GONZALES Y
LIM on the head, thereby inflicting upon the latter serious and moral gunshot wound which directly caused his
death.
CONTRARY TO LAW.4
According to the prosecution, on January 1, 2005, at around 2:30 in the afternoon, petitioner went to the office
of Sykes Asia Inc. located at the 25th Floor of Robinson’s Summit Center,Ayala Avenue, Makati City. When
petitioner was already inside the building, he went to the work station of the deceased victim, Jeffrey Wernher L.
Gonzales (Jeffrey), who, by the configuration of the eye witness Antonette Managbanag’s sketch, was seated
fronting his computer terminal, with his back towards the aisle. As petitioner approached Jeffrey from the back,
petitioner was already holding a gun pointed at the back of Jeffrey’s head. At the last second, Jeffrey managed to
deflect the hand of petitioner holding the gun, and a short struggle for the possession of the gun ensued
thereafter. Petitioner won the struggle and remained in possession of the said gun. Petitioner then pointed the
gun at Jeffrey’s face, pulled the trigger four (4) times, the fourth shot finally discharging the bullet that hit Jeffrey
in the forehead, eventually killing him. Finally, after shooting Jeffrey, petitioner fled the office.
The defense recounted a different version of the facts.
Petitioner claimed that on January1, 2005, at around 2:30 in the afternoon, more or less, petitioner, together
with his children, went to Sykes Asia, the workplace of his wife, Darlene Dela Cruz (Darlene), located at the 25th
Floor of Robinson’s Summit Building in Makati City, to fetch the latter so that their family could spend time and
celebrate together the New Year’s Day. Before entering the Robinson’s Summit Building, petitioner underwent
the regular security check-up/procedures. He was frisked by the guards-on-duty manning the main entrance of
said building and no firearm was found in his possession. He registered his name at the security logbook and
surrendered a valid I.D.
Upon reaching the 25th Floor of the same building, a security guard manning the entrance once again frisked
petitioner and, likewise, found no gun in his possession; hence, he was allowed to enter the premises of Sykes
Asia. The security guard also pointed to him the direction towards his wife’s table.
However, as Darlene was then not on her table, petitioner approached a certain man and asked the latter as to
the possible whereabouts of Darlene. The person whom petitioner had talked towas the deceased-victim,
Jeffrey. After casually introducing himself as the husband of Darlene, Jeffrey curtly told him, "Bakit mo
hinahanap si Darlene?"to which he answered, "Nagpapasundo kasi sa akin."The response given by Jeffrey
shocked and appalled petitioner: "Ayaw na nga ng asawa mo sayo sinusundo mo pa!"
Shocked by the words and reaction of Jeffrey, petitioner tried to inquire from Jeffrey who he was. But Jeffrey
suddenly cursed petitioner. Then, Jeffrey suddenly picked up something in his chair which happened to be a gun
and pointed the same at petitioner’s face followed by a clicking sound. The gun, however, did not fire.
Seeing imminent danger to his life,petitioner grappled with Jeffrey for the possession of the gun.While grappling,
the gunclicked for two (2) to three (3) more times. Again, the gun did not fire.
Petitioner was able to wrest away the gun from Jeffrey and tried to run away to avoid any further confrontation
with the latter.However, Jeffrey immediately blocked petitioner’s path and shouted, "Guard! Guard!"
Immediately then, Jeffrey took hold ofa big fire extinguisher, aimed and was about to smash the same on
petitioner’s head.
Acting instinctively, petitioner parried the attack while still holding the gun. While in the act of parrying, the gun
accidentally fired due to the reasonable force and contact that his parrying hand had made with the fire
extinguisher and the single bullet discharged hit the forehead of Jeffrey, which caused the latter to fall on the
floor and die.
Petitioner left the gun and went out ofthe premises of Sykes Asia and proceeded towards the elevator. On his
way to the elevator, he heard Darlene shout, "Sherwin anong nangyari?", but he was not able to answer.
After said incident, Darlene abandoned petitioner and brought with her their two (2) young children. Petitioner
later learned that Darlene and Jeffrey had an illicit relationship when he received a copy of the blog of Darlene,
dated January 30, 2005, sent by his friend.
During his arraignment, on August 22, 2005, petitioner, with the assistance of counsel, pleaded "Not Guilty" to
the charge. Thereafter, pretrial conference was conducted on even date and trial on the merits ensued
thereafter.
During the trial of the case, the prosecution presented the oral testimonies of Marie Antonette Managbanag
(Managbanag), Maria Angelina Pelaez (Pelaez) and Carlos Alberto Lim Gonzales (Gonzales), respectively. The
prosecution likewise formally offered several pieces of documentary evidence to support its claim.
For its part, the defense presented aswitnesses, petitioner himself; his brother, Simeon Sander Dela Cruz III
(Cruz), Greg Lasmarias Elbanvuena (Elbanvuena) and Managbanag, who was recalled to the witness stand as
witness for the defense.
On February 26, 2007, the Regional Trial Court (RTC)of Makati City, Branch 147, rendered a Decision5 finding
petitioner guilty beyond reasonable doubt of the crime of Homicide, as defined and penalized under Article 249
of the Revised Penal Code (RPC), the fallo thereof reads:
WHEREFORE, Judgment is rendered finding herein accused Sherwin Dela Cruz y Gloria Guilty beyond reasonable
doubt of the crime of Homicide as defined and penalized under Art. 249 of the Revised Penal Code, and
sentencing him to suffer the indeterminate penalty of Eight (8) years and One (1) day of prision mayor medium
as Minimum to Fourteen (14) years eight (8) months and one (1) day of reclusion temporal medium as
Maximum; to indemnify the Heirs of Jeffrey Wernher Gonzales y Lim in the amount of ₱50,000.00 plus moral
damages in the amount of ₱1 Million, and to pay the costs.
SO ORDERED.6
On March 28, 2007, petitioner filed a Notice of Appeal, while private respondent, through the private
prosecutor, filed a Notice of Appeal on April 11, 2007 insofar as the sentence rendered against petitioner is
concerned and the civil damages awarded.
After the denial of their motion for reconsideration, petitioner elevated the case to the Court of Appeals (CA).
However, the latter denied their appeal and affirmed the RTC decision with modification on the civil liability of
petitioner. The decretal portion of the Decision7 reads: WHEREFORE, we hereby AFFIRM the Decision of the
Regional Trial Court of Makati, Branch 147 dated 26 February 2007 finding accused-appellant Sherwin Dela Cruz
y Gloria GUILTY beyond reasonable doubt of the crime ofHomicide with the following MODIFICATIONS:
(1) to pay the heirs of the victim the amount of ₱50,000.00 as civil indemnity;
(2) the amount of ₱50,000.00 as moral damages;
(3) the amount of ₱25,000.00 as temperate damages;
(4) the amount of ₱3,022,641.71 as damages for loss of earning capacity.
(5) to pay the costs of the litigation.
SO ORDERED.8
Petitioner's motion for reconsideration was denied. Hence, the present petition.
Raised are the following issues for resolution:
1. WHETHER ALL THE REQUISITES OF THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE, AS PROVIDED
FOR BY LAW AND SETTLED JURISPRUDENCE, ARE PRESENT IN THIS CASE.
2. WHETHER THE FIRING OF THE GUN WHEREIN ONLY A SINGLE BULLET WAS DISCHARGED
THEREFROM WAS MERELY ACCIDENTAL WHICH OCCURRED DURING THE TIME THAT THE PETITIONER-
APPELLANT WAS STILL IN THE ACT OF DEFENDING HIMSELF FROM THE CONTINUOUS UNLAWFUL
AGGRESSION OF THE DECEASED VICTIM.
3. WHETHER THE PROSECUTION WAS ABLE TO PROVE ALL THE ESSENTIAL ELEMENTS CONSTITUTING
THE CRIME OF HOMICIDE.
4. WHETHER THE PRIVILEGED MITIGATING CIRCUMSTANCE OF SELF-DEFENSE IS APPLICABLE IN THIS
CASE.
5. WHETHER PETITIONER-APPELLANT MAY BE HELD CIVILLY LIABLE FOR THE DEATH OF THE VICTIM
ARISING FROM THE ACCIDENT THAT TRANSPIRED.9
There is no question that petitioner authored the death of the deceased-victim, Jeffrey. What is leftfor
determination by this Court is whether the elements of self-defenseexist to exculpate petitioner from the
criminal liability for Homicide.
The essential requisites of self-defense are the following: (1) unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to prevent or repel such aggression; and (3) lackof sufficient
provocation on the part of the person resorting to self-defense.10 In other words, there must have been an
unlawful and unprovoked attack that endangered the life of the accused, who was then forced to inflict severe
wounds upon the assailant by employing reasonable means to resist the attack.11
Considering that self-defense totally exonerates the accused from any criminal liability, it is well settled
thatwhen he invokes the same, it becomes incumbent upon him to prove by clear and convincing evidence that
he indeed acted in defense of himself.12 The burden of proving that the killing was justified and that he incurred
no criminal liability therefor shifts upon him.13 As such, he must rely on the strength of his own evidence and not
on the weakness of the prosecution for, even if the prosecution evidence is weak, it cannot be disbelieved after
the accused himself has admitted the killing.14
Measured against this criteria, wefind that petitioner's defense is sorely wanting. Hence, his petition must be
denied.
First. The evidence on record does not support petitioner's contention that unlawful aggression was employed
by the deceased-victim, Jeffrey, against him.
Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden, unexpected or
imminent danger — not merely threatening and intimidating action.15 There is aggression, only when the one
attacked faces real and immediate threat to his life.16 The peril sought to be avoided must be imminent and
actual, not merely speculative.17 In the case at bar, other than petitioner’s testimony, the defense did not adduce
evidence to show that Jeffrey condescendingly responded to petitioner’s questions or initiated the confrontation A: And then Jeff parried the gun and they started struggling for the possession of the gun.
before the shooting incident; that Jeffrey pulled a gun from his chair and tried to shoot petitioner but failed — an
assault which may have caused petitioner to fear for his life. Q: How far were you from this struggle when you witnessed it?

Even assuming arguendothat the gun originated from Jeffrey and an altercation transpired, and therefore, A: Probably 10 to 12 feet.
danger may have in fact existed, the imminence of that danger had already ceased the moment petitioner
disarmed Jeffrey by wresting the gun from the latter. After petitioner had successfully seized it, there was no
Q: Going back to your story, Ms. Witness, you mentioned that after Jeffrey warded off the gun, they started to
longer any unlawful aggression to speak of that would have necessitated the need to kill Jeffrey. As aptly
struggle, what happened after that, if any?
observed by the RTC, petitioner had every opportunity to run away from the scene and seek help but refused to
do so, thus:
A: After they struggled, the gun clicked three times and then after that Jeff tried to get hold of the fire
extinguisher and the fourth shot went off and then Jeffrey fell down.
In this case, accused and the victim grappled for possession of the gun.1avvphi1 Accused admitted that he
wrested the gun from the victim. From that point in time until the victim shouted "guard, guard", then took the
fire extinguisher, there was no unlawful aggression coming from the victim. Accused had the opportunity to run Q: And who was holding the gun?
away. Therefore, even assuming that the aggression with use of the gun initially came from the victim, the fact
remains that it ceased when the gun was wrested away by the accused from the victim. It is settled that when A: Sherwin was holding the gun. (TSN, Oct. 17, 2005, pp. 12-14) CROSS-EXAMINATION: Atty. Agoot:
unlawful aggression ceases, the defender no longer has any right to kill or wound the former aggressor,
otherwise, retaliation and not self-defense is committed (Peo Vs. Tagana, 424 SCRA 620). A person making a Q: So you did not see when Sherwin approached Jeffrey because he came from the other side? Atty. Mariano:
defense has no more right to attack an aggressor when the unlawful aggression has ceased (PeoVs. Pateo, 430
SCRA 609).
Objection, your Honor, witness already answered that.

Accused alleged that the victimwas about to smash the fire extinguisher on his (accused’s) headbut he parried it
with his hand holding the gun. This is doubtful as nothing in the records is or would be corroborative of it.In Atty. Agoot:
contrast, the two (2) Prosecution witnesses whose credibility was not impeached, both gave the impression that
the victim got the fire extinguisher to shieldhimself from the accused who was then already in possession of the I am on cross examination, your Honor.
gun.18
COURT
Thus, when an unlawful aggression that has begun no longer exists, the one who resorts to self-defense has no
right to kill or even wound the former aggressor.19 To be sure, when the present victim no longer persisted in his You didn’t not see when he approached Jeffrey? A: No, as I said, I saw him point the gun at the back of Jeff and
purpose or action to the extent that the object of his attack was no longer in peril, there was no more unlawful he did not come from my side so that means…
aggression that would warrant legal self-defense on the part of the offender.20 Undoubtedly, petitioner went
beyond the call of self-preservation when he proceeded to inflict excessive, atrocious and fatal injuries on
COURT
Jeffrey, even when the allegedly unlawful aggression had already ceased.

No, the question is, You did not actually see Sherwin approached Jeffrey?
More, a review of the testimony of the prosecution witness, Pelaez, will show that if there was unlawful
aggression in the instant case, the same rather emanated from petitioner, thus: DIRECT EXAMINATION
A: I saw him already at the back of Jeffrey.
Atty. Mariano:
Atty. Agoot
Q: Can you relate to the Court, Ms. Witness, how did this incident happen?
He was already at the back of Jeffrey when you saw him?
A: We were still at work, we were expecting calls but there were no calls at the moment and I was standing at my
work station and then Sherwin approached Jeff and he pointed a gun at the back of the head of Jeff. A: Yes, Sir.

Q: And then what happened? (TSN, Oct. 17, 2005, pp. 26-27)21
Clearly, petitioner's allegation that when he approached Jeffrey, the latter pulled a gun from his chair and tried Atty. Agoot
to shoot him, is not corroborated by separate competent evidence. Pitted against the testimony of prosecution
witnesses, Managbanag and Pelaez, it pales incomparison and loses probative value. We have, on more thanone Q: And then after that there was again a grappling?
occasion, ruled that the plea of self-defense cannot be justifiably entertained where it is not only
uncorroborated by any separate competent evidence but also extremely doubtful in itself.22
Witness

In addition, other than petitioner’s testimony, there is dearth of evidence showing that the alleged unlawful
A: No more grappling for possession. Because Jeffrey was still holding the fire extinguisher at thattime. And then
aggression on the part of Jeffrey continued when he blocked the path of petitioner while the latter tried to run
he fell holding on to the fire extinguisher.
away to avoid further confrontation with Jeffrey. We also agree with the findings of the RTC that there was no
proof evincing that Jeffrey aimed and intended to smash the big fire extinguisher on petitioner’s head.
Alternatively, the prosecution witnesses maintained an impression that Jeffrey used the same to shield himself Atty. Agoot
from petitioner who was then in possession of the gun, a deadly weapon. An excerpt of the testimony of
Managbanag bares just that, to wit: Q: You said here which I quote "binaril siya ng lalaki ng sunod-sunod pero hindi pumutok" Do you affirmand
confirm this statement?
Atty. Agoot
Witness
Q: And then after pulling the fire extinguisher from the wall Jeffrey again faced the person who was holding the
gun already? A: Yes, sir. They were pushing each other. The other person was trying to point the gun at Jeffrey and Jeffrey was
trying to cover himself with the fire extinguisher so nagkakatulakan sila at the same time.
Witness:
Atty. Agoot
A: He was holding the fire extinguisher like this.
Q: You said that the gun clicked, how many times did the gun click without firing?
COURT
Witness
For the record.
A: Three (3) times, sir.
Atty. Mariano:
Atty. Agoot
Witness demonstrating how the victim Jeffrey Gonzales was holding the fire extinguisher upright with his right
hand above the fire extinguisher and his left hand below the fire extinguisher. Q: And what did the late Jeffrey do when the gun clicked but did not fire?

Witness: Witness

The left hand would support the weight basically. A: They were still pushing each other at that time.

Atty. Agoot Atty. Agoot

Q: And then he used that fire extinguisher to protect himself from the slapping of that person who was in Q: Using the fire extinguisher, heused that to push against the person…
possession of the gun?
Witness
Witness
A: Basically trying to cover himself and trying to push away the person who was pointing the gun at him.
A: Yes, sir.
Atty. Agoot
Q: And why do you know that Jeffrey was trying hard to push the fire extinguisher?
Witness
A: Because I was seated roughly about 5 to 6 feet away from them. So I clearly saw what was going on at that
time.
(Direct Examination of Marie Antonette Managbanag for the Defense, TSN dated 04 September 2006, pp. 12-17,
emphasis supplied)23
Petitioner’s contention that Jeffrey’s unlawful aggression was continuous and imminent is, therefore, devoid of
merit.
Given that the criteria of unlawful aggression is indubitably absent in the instant case, the severe wounds
inflicted by petitioner upon Jeffrey was unwarranted and, therefore, cannot be considered a justifying
circumstance under pertinent laws and jurisprudence.
Second. Even assuming that the unlawful aggression emanated from the deceased victim, Jeffrey, the means
employed by petitioner was not reasonably commensurate to the nature and extent of the alleged attack, which
he sought to avert. As held by the Court in People v. Obordo:24
Even assuming arguendo that there was unlawful aggression on the part of the victim, accused-appellant
likewise failed to prove that the means he employed to repel Homer's punch was reasonable. The means
employed by the person invoking self-defense contemplates a rational equivalence between the means of attack
and the defense. Accused appellant claimed that the victim punched him and was trying to get something from
his waist, so he (accused-appellant) stabbed the victim with his hunting knife. His act of immediately stabbing
Homer and inflicting a wound on a vital part ofthe victim's body was unreasonable and unnecessary considering
that, as alleged by accused-appellant himself, the victim used his bare fist in throwing a punch at him.25
Indeed, the means employed by a person resorting to self-defense must be rationally necessary to prevent or
repel an unlawful aggression. The opposite was, however, employed by petitioner, as correctly pointed out by
the RTC, thus:
The victim was holding the fire extinguisher while the second was holding the gun. The gun and the discharge
thereof was unnecessary and disproportionate to repel the alleged aggression with the use of fire extinguisher.
The rule is that the means employed by the person invoking self-defense contemplates a rational equivalence
between the means of attack and the defense (Peo vs. Obordo, 382 SCRA 98).
It was the accused who was in a vantage position as he was armed with a gun, as against the victim who was
armed, so to speak, with a fire extinguisher, which is not a deadly weapon. Under the circumstances, accused’s
alleged fear was unfounded. The Supreme Court has ruled that neither an imagined impending attack nor an
impending or threatening attitude is sufficient to constitute unlawful aggression (Catalina Security Agency Vs.
Gonzales-Decano, 429 SCRA 628). It is a settled rule that to constitute aggression, the person attacked must be
confronted by a real threat on his lifeand limb; and the peril sought to be avoided is imminent and actual, not
merely imaginary (Senoja v. Peo., 440 SCRA 695).26
If petitioner had honestly believed that Jeffrey was trying to kill him, he should have just run, despite any
obstruction, considering that he was already in possession of the gun. He could have also immediately sought
help from the people around him, specifically the guard stationed at the floor where the shooting incident
happened. In fact, he could have reported the incident to the authorities as soon as he had opportunity to do so,
if it was indeed an accident or a cry of self-preservation. Yet, petitioner never did any of that.
We find it highly specious for petitioner to go through the process of tussling and hassling with Jeffrey, and inthe
end, shooting the latter on the forehead, not only once, but four times, the last shot finally killing him, if he had
no intention to hurt Jeffrey. Thus:
Moreover, the Prosecution’s eyewitnesses were consistent in declaring that while there was prior struggle for
the possession of the gun, it was nevertheless accused who was holding the gun at the time of the actual firing
thereof (TSN, p. 30, October 10, 2005; TSN, p. 14, October 17, 2005). Witness Managbanag even alleged that
while the victim (Jeffrey), who was in possession of the fire extinguisher, and the accused were pushing each
other, accused pointed the gun at the victim. She heard three (3) clicks and on the 4th , the gun fired (TSN, p. 12,
October 10, 2005). Under the circumstances, it cannot be safely said that the gun was or could have been fired
accidentally. The discharge of the gun which led to the victim’s death was no longer made in the course of the
grapple and/or struggle for the possession of the gun.27
The observation of the RTC dispels any doubt that the gun may have been shot accidentally to the detriment of
Jeffrey. The fire was neither a disaster nor a misfortune of sorts. While petitioner may nothave intended to kill
Jeffrey at the onset, at the time he clicked the trigger thrice consecutively, his intent to hurt (or even kill) Jeffrey
was too plain to be disregarded. We have held in the pastthat the nature and number of wounds are constantly
and unremittingly considered important indicia which disprove a plea of self-defense.28 Thus, petitioner’s
contention that an accident simultaneously occurred while hewas in the act of self-defense is simply absurd and
preposterous at best. There could nothave been an accident because the victim herein suffered a gunshot
wound on his head, a vital part of the body and, thus, demonstrates a criminal mind resolved to end the life of
the victim.
Besides, petitioner’s failure to inform the police of the unlawful aggression on the part of Jeffrey and to
surrender the gun that he used to kill the victim militates against his claim of self-defense.29
In view of the foregoing, we find it illogical to discuss further the third element of self-defense since it is
recognized that unlawful aggression is a conditio sine qua nonfor upholding the justifying circumstance of self-
defense.30 If there is nothing to prevent or repel, the other two requisites of self-defense will have no
basis.31 Hence, there is no basis to entertain petitioner’s argument that a privileged mitigating circumstance of
selfdefense is applicable in this case, because unless the victim has committed unlawful aggression against the
other, there can be no self-defense, complete or incomplete, on the part of the latter. 32
Anent petitioner’s argument thatthe RTC erred when it failed to consider as suppression of evidence the
prosecution’s alleged deliberate omission to present the testimonies of the security guards-on-duty at the time
of the shooting incident, the same fails to persuade. We concur with the decision of the CA on this point, to wit:
Having admitted the killing of the victim, the burden of evidence that he acted in self-defense, shifted to
accused-appellant Dela Cruz. He must rely on the strength of his own evidence and not on the weakness of the
prosecution’s evidence, for, even if the latter were weak, it could not be disbelieved after his open admission of
responsibility for the killing.
The security guards on duty at the time of the subject incident were at the disposal of both the prosecution and
the defense. The defense did not proffer proof that the prosecution prevented the security guards from
testifying. There is therefore no basis for it to conclude that the prosecution is guilty of suppression of evidence.
The defense could have easily presented the security guards if it is of the opinion that their [the security guards]
testimonies were vital and material to the case of the defense. It could have compelled the security guards on
duty to appear before the court. xxx.33
It is worthy to note that the question of whether petitioner acted in self-defense is essentially a question of
fact.34 It is the peculiar province of the trial court to determine the credibility of witnesses and related questions
of fact because of its superior advantage in observing the conduct and demeanor of witnesses while
testifying.35 This being so and in the absence of a showing that the CA and the RTC failed to appreciate facts or
circumstances of such weight and substance that would have merited petitioner's acquittal, this Court finds no
compelling reason to disturb the ruling of the CA that petitioner did not act in self-defense.36
In this regard, we do not subscribe to petitioner’s contention that since the incident transpired in Jeffrey’s office,
and the witnesses presented by the prosecution are known officemates of Jeffrey, the witnesses are expected to
testify in favor of Jeffrey and against petitioner. Ascorrectly pointed out by respondent, there appears no motive
on the part of the prosecution witnesses to falsely testify against petitioner. 37 The fact that they are officemates
of Jeffrey does not justify a conclusion that Managbanag and Pelaez would concoct or fabricate stories in favorof
Jeffrey for the mere purpose of implicating petitioner with such a serious crime, especially since they are
testifying under oath.
All told, we find no basis to doubt ordispute, much less overturn, the findings of the RTC and the CA that the
elements of homicide are present in the instant case as amply shown by the testimonies of the prosecution
eyewitnesses, and they constitute sufficient proof of the guilt of petitioner beyond cavil or doubt.
Nevertheless, with regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm,
we deviate from the findings of the CA. A perusal of the Information will show that the use of unlicensed firearm
was expressly alleged in the killing of Jeffrey. This allegation was further proved during trial by the presentation
of the Certification from the PNP Firearms and Explosives Division, dated November 11, 2005, certifying that
petitioner is not a licensed/registered firearm holder of any kind and calibre, per verification from the records of
the said Division. Accordingly, under Paragraph 3 of Section 1 of Republic Act (R.A.) No. 8294, amending Section
1 of Presidential Decree (P.D.) No. 1866, such use of an unlicensed firearm shall be considered as an aggravating
circumstance, to wit:
xxxx
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.
x x x x.
Under Article 249 of the RPC, the penalty for homicide is reclusion temporal. There being an aggravating
circumstance of use of unlicensed firearm, the penalty imposable on petitioner should be in its maximum
period.38Applying the Indeterminate Sentence Law, the petitioner shall be sentenced to an indeterminate
penalty of from ten (10) years and one (1) day of prision mayor maximum, as the minimum penalty, to seventeen
(17) years, four (4) months and one (1) day of reclusion temporal maximum, as the maximum penalty.
As to the award of civil indemnity, moral damages, and damages for loss of earning capacity in favor ofprivate
respondent, we sustain the findings of the CA in so far as they are in accordance with prevailing jurisprudence. In
addition, we find the grant of exemplary damages in the present case in order, since the presence of special
aggravating circumstance of use of unlicensed firearm has been established.39 Based on current jurisprudence,
the award of exemplary damages for homicide is ₱30,000.00.40
Finally, pursuant to this Court’s ruling in Nacar v. Gallery Frames,41 an interest of six percent (6%) per annum on
the aggregate amount awarded for civil indemnity and damages for loss of earning capacity shall be imposed,
computed from the time of finality of this Decision until full payment thereof.
WHEREFORE, the petition is DENIED. The May 7, 2009 Decision and August 19, 2009 Resolution of the Court of
Appeals in CA-G.R. CV No. 89257, finding petitioner Sherwin Dela Cruz guilty beyond reasonable doubt of the
crime of Homicide, are hereby AFFIRMED with MODIFICATIONS, to wit:
(1) Petitioner shall be sentenced to an indeterminate penalty of from ten (10) years and one (1) day of prision
mayor maximum, as the minimum penalty, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal maximum, as the maximum penalty;
(2) Petitioner is likewise ORDERED to pay the heirs of the victim the following:
a. the amount of ₱50,000.00 as civil indemnity;
b. the amount of ₱50,000.00 as moral damages;
c. the amount of ₱25,000.00 as temperate damages;
d. the amount of ₱30,000.00 as exemplary damages;
e. the amount of ₱3,022,641.71 as damages for loss of earning capacity;
f. for the civil indemnity and the damages for loss of earning capacity, an interest of six percent (6%)
per annum, computed from the time of finality of this Decision until full payment thereof; and
g. the costs of the litigation. SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice

FIRST DIVISION
June 7, 2017
G.R. No. 225623
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
LORENZO RAYTOS Y ESPINO, Accused-Appellant
DECISION
CAGUIOA, J.:
Before this Court is an appeal 1 filed under Section 13, Rule 124 of the Rules of Court from the Decision 2 dated
February 26, 2016 (questioned Decision) of the Court of Appeals, Nineteenth (19th) Division (CA) in CA-G.R. CR-
HC. No. 01556. The questioned Decision affirmed the Decision3 dated November 5, 2012 of the Regional Trial
Court of Calbiga, Samar, Branch 33 (RTC), in Criminal Case No. C-2010-1748 (RTC Decision), finding herein
accused-appellant Lorenzo E. Raytos (Raytos) guilty of the crime of Murder under Article 248 of the Revised
Penal Code (RPC).
The Information4 charging Raytos with Murder states as follows:
That on or about the (sic) 12:00 midnight, more or less, of February 1, 2010 at Barangay Nagcaduha, Municipality
of Villareal, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
accused, with deliberate intent to kill, with treachery and evident premeditation, which qualifies the offense to
murder, did, then and there, willfully, unlawfully and feloniously, attack, assault and stab DAVID ARAZA with the
use of a short bladed weapon, which accused had provided himself for the purpose, thereby inflicting and hitting
the victim fatal stab wounds on the different parts of his body, which wounds caused his death.
CONTRARY TO LAW. 5
Upon his arraignment, Raytos entered a plea of "not guilty," 6 and during the pre-trial conference, Raytos
invoked self-defense. 7 Trial ensued with the defense presenting its evidence first.
The Facts
The factual narrations, for both defense and prosecution, were summarized by the CA, as follows:
Version of the Defense
Raytos testified that he knew the victim, David Araza, since birth, who was residing in Brgy. Igot, Villareal, Samar,
which is 300 meters away from his residence in Brgy. Nagcaduha, Villareal, Samar. On February 1, 2010, at
around 8:00 in the evening, he was in Purok 1, Brgy. Nagcaduha Villareal, Samar, coming from his cousin's place,
when he was invited by Indo Sabio to partake on some leftovers from the fiesta and to join them as a dance
session was being held. He joined the table where Indo Sabio, Anita Sabio, Kanor Sabio, Domingo Sabio, Romeo
Nacase and Edgar Papiona were seated. Seated on the other table beside them were Indo Sabio's wife, a certain
Tina, Elsa Sabio, Rudy Araza and Rudy's wife. At around 11:30 in the evening, David Araza (victim), coming from
Purok 2, passed by Purok 1 and was approached by Edgar Papiona, and the two danced. After they danced, the
victim approached the table where Anita Sabio was seated and invited her to dance, but the latter refused.
Thereafter, the victim and Edgar Papiona danced again. After dancing, the victim approached again Raytos' table
and asked who was brave enough while drawing a knife tucked in the waistband of his pants. Raytos tried to
escape by moving backwards and, while doing so, he got hold of the victim's right hand. Raytos twisted the
victim's arm, got hold of the knife and then stabbed the victim several times on the chest. He delivered three (3)
successive stabbing blows in a quick and swift manner because he panicked. He ran away immediately and
surrendered himself to the barangay officials and they proceeded to the police station.
Dionisio Mado y Bardaje (hereafter Mado) testified that he knew Raytos because the latter often comes to Brgy.
Guintarcan, where Mado resides. He also knew the victim personally. On February 1, 2010, at around 10:00 in
the evening, he was at Brgy. Nagcaduha, Villareal, Samar, watching the dance session being held, and he saw the
victim enter the dance area and challenge the people seated on one table to a fight. When the victim saw
Raytos, he pointed at Raytos and said "You are the one I want" and Raytos answered saying "I [h]ave no fault
against you." Then, the victim drew a knife from his waist and stabbed Raytos but the latter was able to parry the
stabbing blow and wrested possession of the knife from the victim. Mado recalled that Raytos used both his
hands in parrying the stabbing blow delivered by the victim and when Raytos got hold of the knife, he stabbed
the front portion of the victim's body. Mado did not see anything more because Raytos ran away after the
incident, and a commotion then ensued. 8
Version of the Prosecution
The prosecution presented three witnesses, Edgardo Papiona, Romeo Nacase and Francisca Araza, whose
testimonies constitute the following version:
Edgardo Papiona y Hermo (hereafter Papiona), a resident of Brgy. Nagcaduha, Villareal, Samar, testified that he
knew both the victim and Raytos. On February 1, 2010, at around 12:00 a.m., he was in front of his house with
Raytos and ten (10) others occupying three (3) tables and having a dance session as it was just the day after their
barangay fiesta. While he was dancing with the victim, Raytos approached them and said that he wanted to
dance with the victim. Papiona acceded and went to the side of the road just an arm's length away from the
dance area. From his position at the side of the road, he saw Raytos stab the victim when the latter turned his
back from Raytos while dancing. Papiona recalled that he saw Raytos hold the right back shoulder of the victim
and stab the latter's back several times with the use of a knife measuring 8 inches in length. Raytos then went to
a hilly portion of their barangay while Papiona helped in loading the victim on a truck and in bringing the latter to
the hospital. He did not hear any argument from both the victim and Raytos prior to the incident. Three days
later, the victim died.
Romeo Nacase y Tarayo (hereafter Nacase), testified that he is a resident of Brgy. Nagcaduha, Villareal, Samar,
and knew both the victim and Raytos. On February 1, 2010, at around 9:00 in the evening, he was having a
drinking spree with the victim and a certain Dado Nacase. Soon thereafter, he saw the victim and Edgar dancing
and while the two danced, he saw Raytos pull a knife from his pocket and approach the victim from the back.
When the victim was about to tum around, Raytos took hold of the victim's shirt and stabbed the victim in the
back. He was about 4 Yi meters away when the incident happened. He did not hear the victim and Raytos argue
or talk before the stabbing incident.
Francisca Araza y Macasalabang (hereafter Francisca), wife of the victim, is left with eleven (11) children. She
presented and identified official receipts as proof of the expenses incurred for the hospitalization and other
medical expenses of her husband amounting to ₱4,986.00 and a certification from Rendeza Funeral Parlor for
embalming services amounting to ₱8,000.00. With the death of her husband, she felt sadness, the heavy weight
and of present future difficulties, and longing for him that even the amount of ₱l,000,000.00 will be an
insufficient compensation. Her deceased husband used to earn an average monthly income of ₱2,000.00. 9
Ruling of the RTC
After trial on the merits, the R TC found Raytos guilty of the crime of Murder qualified by treachery:
WHEREFORE, premises considered, the court finds accused LORENZO RAYTOS Y ESPINO GUILTY beyond
reasonable doubt of the crime of Murder qualified by treachery, defined and penalized under Article 248 of the
Revised Penal Code and hereby sentences him to suffer the penalty of reclusion perpetua.
He is likewise ordered to pay the heirs of the victim David Araza the following amounts:
1. ₱50,000.00 as civil indemnity;
2. ₱50,000.00 as moral damages; and
3. ₱12,896.00 as actual damages.
No pronouncement as to costs.
SO ORDERED. 10
Raytos appealed to the CA via Notice of Appeal dated December 10, 2012. 11 Raytos then filed his Brief dated
March 16, 2015, 12 while the plaintiff-appellee, through the Office of the Solicitor General, filed its Brief dated
October 14, 2015. 13 In a Manifestation dated November 9, 2015, Raytos waived his right to file a Reply Brief. 14
Ruling of the CA
In the questioned Decision, the CA affirmed Raytos' conviction while modifying the award of damages. The
dispositive portion reads:
WHEREFORE, the appeal is hereby DENIED. The Decision of the RTC, Branch 33, Calbiga, Samar, in Criminal Case
No. C-2010-1748 is hereby AFFIRMED with MODIFICATIONS. Lorenzo Raytos y Espino is GUILTY beyond
reasonable doubt of Murder and is sentenced to suffer the penalty of reclusion perpetua. Raytos is further
ordered to pay the heirs of the victim the following: civil indemnity of ₱50,000.00, moral damages of ₱50,000.00,
exemplary damages of ₱30,000.00 and temperate damages of ₱25,000.00. The amounts of damages awarded
are subject further to interest of 6% per annum from the date of finality of this judgment until they are fully paid.
SO ORDERED. 15
On March 14, 2016, Raytos brought the instant case before this Court via Notice of Appeal 16 of even date.
In lieu of supplemental briefs, Raytos and plaintiff-appellee filed separate manifestations respectively dated
February 9, 2017 17 and January 30, 2017, 18 foregoing their right to file the same.
Issue
In the instant appeal, Raytos seeks to reverse the questioned Decision based on the following assignment of
errors:
[WHETHER OR NOT THE CA] ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER AND
NOT APPRECIATING THE SELF-DEFENSE INTERPOSED BY THE ACCUSED-APPELLANT.
[WHETHER OR NOT THE CA] ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER AS
THE QUALIFYING CIRCUMSTANCE OF TREACHERY WAS NOT ESTABLISHED. 19
Simply put, the basic issue for the Court's resolution is whether Raytos' guilt for the crime of Murder was
sufficiently proven beyond reasonable doubt.
The Court's Ruling
The Court finds the appeal lacking in merit.
In this case, the opposing sides are incessant on the truthfulness of their version of the story, which differ in
material points of fact; the State, on one hand, has successfully presented strong evidence of guilt for Murder,
while Raytos, on the other hand, maintains his innocence based on his plea of self-defense.
At this point, it bears noting that the issue of whether the accused acted in self-defense is essentially a question
of fact. 20 The RTC's assessment of the credibility of witnesses is accorded great weight and respect, especially
when affirmed by the CA.21 This is a rule borne out of necessity given the distinct vantage point of the trial court
in observing and assessing the witnesses while undergoing the rigors of direct and cross-examination; it is only in
the crucible of this exercise that the trial court is able to extract incommunicable evidence from the witnesses
based on their demeanor on the stand.22 Hence, in the absence of a clear showing that the lower courts erred in
their appreciation of the facts, or in their application of the pertinent laws and jurisprudence to such facts, their
findings will no longer be disturbed on appeal.
In fine, given the concurrent findings of guilt made by both the RTC and CA, the Court finds that no cogent
reason exists to reverse Raytos' conviction.
Raytos Failed To Establish TheElements Of Self-Defense
A plea of self-defense admits the commission of the act charged as a crime; accordingly, the onus probandi falls
on the accused to prove that such killing was justified - failure to discharge which renders the act punishable.23
Thus, to exonerate himself, the accused must establish: (i) that there was unlawful aggression by the victim; (ii)
that the means employed to prevent or repel such aggression were reasonable; and (iii) that there was lack of
sufficient provocation on his part. 24 Of the three, unlawful aggression is the foremost requirement; absent such
element, self-defense, whether complete or incomplete, cannot be appreciated. 25
After poring over the records of this case, the Court is convinced that Raytos failed to establish unlawful
aggression on the part of the victim, David Araza (Araza). Necessarily, Raytos' claim of self-defense has no more
leg to stand on.
In his version of the incident, Raytos claimed that Araza drew a knife from his left waist following a brief
exchange of words between them. 26 Raytos then moved back, allegedly intending to escape, but instead ended
up wresting possession of the knife from Araza. 27 After doing so, Raytos Araza stabbed numerous times, leading
to the latter's demise.28
The Court finds this narration of events to be incredible. Self-defense, like alibi, is a defense easy to
concoct. 29Testimonial evidence, to be believable, must not only proceed from the mouth of a credible witness
but must also be credible following common experience and leading to the inference of its probability under the
circumstances.30Here, it is difficult to imagine how Raytos, while attempting to escape, was suddenly able to
grab hold of Araza's hand and after relieving the latter of the knife, proceeded to stab him multiple times in quick
succession:
Q - So, Mr. Witness, when you saw this David Araza drew a knife from the left side tucked in his belly, what did
you do?
A - At the time when he drew his knife tucked on his left waist, and at the same time said "who was braver", I
moved backward and even the chair almost fall (sic), I decided to escape by moving my body backward and I
even got hold of his right hand.
Q - So, upon holding the right hand of David Araza, what happened next, Mr. Witness?
A - After I got hold of his hand, I twisted his hand, that's why I was able to got (sic) hold the possession of the
knife.
xxxx
Q - Do you remember, Mr. Witness, in what particular part of the body did you stab David Araza?
A - I think, he was hit on the chest, at this area. (Witness touching his chest with his right arm and said)
Somebody even told me that David Araza sustained six (6) wounds.
Q - Mr. Witness, setting aside what this person had told you, from your own recollection, how many stab thursts
(sic) did you in-fact inclict (sic) on the victim?
A – What I could remember, I stabbed him several times. 31 (Emphasis supplied)
But even if the Court were to believe this version of the events, it is evident that no unlawful aggression can be
deduced. Stated differently, there was clearly no imminent danger on the person of Raytos as would justify his
killing Araza.
Unlawful aggression is predicated on an actual, sudden, unexpected, or imminent danger - not merely a
threatening or intimidating action. 32 In People v. Dulin,33 the Court had the occasion to elaborate on the kinds
andnature of unlawful aggression, viz.:
Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression means an attack with physical force or with a weapon, an
offensive act that positively determines the intent of the aggressor to cause the injury. Imminent unlawful
aggression means an attack that is impending or at the point of happening; it must not consist in a mere
threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a knife and making a motion as if to attack). Imminent
unlawful aggression must not be a mere threatening attitude of the victim, such as pressing his right hand to his
hip where a revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot.34
In People v. Escarlos,35 the Court ruled that the mere drawing of a knife by the victim does not constitute
unlawful aggression, whether actual or imminent, as the peril sought to be avoided by the accused was both
premature and speculative:
In the present case, appellant claims that there was unlawful aggression on the part of the victim when the latter
unceremoniously boxed him on the forehead in the heat of their argument. Appellant adds that he had initially
thought of hitting back when he noticed that the victim was pulling out a kitchen knife. Hence, to save his life,
the former grabbed the weapon and used it to stab the latter. Appellant insists that under the circumstances, he
was legally justified in using the knife to ward off the unlawful aggression. For him to wait for the knife to be
raised and to fall on him before acting to defend himself would be asking too much, he argues.
The contentions of appellant are untenable. While the victim may be said to have initiated the confrontation, we
do not subscribe to the view that the former was subjected to an unlawful aggression within the legal meaning
of the phrase.
The alleged assault did not come as a surprise, as it was preceded by a heated exchange of words between the
two parties who had a history of animosity. Moreover, the alleged drawing of a knife by the victim could not
have placed the life of appellant in imminent danger. The former might have done it only to threaten or
intimidate the latter.
Unlawful aggression presupposes actual, sudden, unexpected or imminent danger - not merely threatening and Q – Do you have an acquaintance by the name of Juanito Rado, Mr. Mado?
intimidating action. Uncertain, premature and speculative was the assertion of appellant that the victim was
about to stab him, when the latter had merely drawn out his knife. There is aggression, only when the one A - Yes. [H]e is my friend and compadre.
attacked faces real and immediate threat to one's life. The peril sought to be avoided must be imminent and
actual, not just speculative. 36 (Italics omitted; emphasis supplied)
Q - And this Juanito Rado is related to Elisa Rado, the wife of Lorenzo Raytos?

Following a similar ratio, in People v. Borreros,37 the Court likewise held that the act of drawing a gun from the
A - I am not aware if they were related?
waist could not yet be categorized as unlawful aggression.

Q - But they have the same surname?

Applying the foregoing to this case, Araza's alleged act of simply drawing a knife from his waist fell short of the
threshold required by law and prevailing jurisprudence. 38 At that point, and as correctly observed by the courts
below, there was yet no actual risk or peril to the life or limb of Raytos. 39 A - I am not certain; maybe they have the same surname.

Parenthetically, the Court notes the testimony of Dionisio B. Mado (Mado ), the other witness for the defense, Q - Is it not a fact that it was Juanito Rado who requested you to testify before this Honourable Court to help
who supplied additional details on the incident. In his narration of events, Mado was purporting to show Lorenzo Raytos in his case?
unlawful aggression on the part of Araza, claiming that the latter actually delivered stabbing blows to Raytos:
A - He did not ask me for such.
Q - Mr. Witness, when the victim challenged Lorenzo Raytos for a fight, what was the distance of David Araza
with respect to Lorenzo Raytos? Q - Who then, contacted you to testify before this Honourable Court, since Lorenzo Raytos is already detained at
Samar Provincial Jail?
A - At this distance. (Witness stood up from where he is seated and pointed to the distance where the defense
counsel is standing which measures four (4) feet in distance.[)] A - Nobody, ma'am.

Q - After David Araza challenged Lorenzo Raytos for a fight, what did Lorenzo Raytos do after that? Q - Meaning, you come (sic) here on your own to testify?

A - Lorenzo Raytos answered: "I have no fault against you." A - I just came here alone to testify in favour of Lorenzo.

Q - After that answer from Mr. Lorenzo Raytos, what did David Araza do? COURT:

(The witness demonstrated while he was standing and getting something from his waist and as if holding Q - How did you come to know that this case will be heard on 11, November 2010, for you to testify?
something moving his right hand forward in the level of his waist doing a stabbing blow forward)
A - I was informed by a friend in Guintarcan that this case will be tried on that day, your Honor.
A - David Araza drew his fan knife from his waist and stabbed Lorenzo Raytos, ma'am.
PROS. NAVAL:
xxxx
Q - So, that friend was Juanito Rado?
Q – In what particular body (sic) was the victim, David Araza was (sic) stabbed by Lorenzo Raytos?
A - No, ma'am.
A - What I saw only was the front portion of his body, ma'am.
Q - Who would that be?
(Witness demonstrated by holding his chest and rolling his palm around his chest).40 (Emphasis supplied)
A - Someone from Guintarcan.
Despite such positive testimony, however, this was not given any weight by the RTC in arriving at a judgment of
conviction, 41 even noting certain inconsistencies in the testimonies of the defense witnesses. 42 The following Q - Can you name that person?
material portions in Mado's cross-examination sheds light on his credibility as a witness for the defense:
A - Bardaje-Jesus. Q - Is it not because you said that David was hit at the front portion of the body because it was what Lorenzo
Raytos told you that David was hit at the front portion?
Q - This is not the first time that you testified before this Honourable Court, [a]m I right, Mr. Mado?
A - No, I actually saw that?
A - It's my first time.
Q - You will not change your answer Mr. Mado, even if I will tell you before this Honourable Court that the victim
Q - Are you sure of that, Mr. Mado? did not sustain any single injury on the chest?

A - Yes, ma'am. A - I will not.43 (Emphasis supplied)

Q - Is it not a fact Mr. Mado that you were here before this Honourable Court years ago to testify in favour of Notably, nowhere in his testimony did Raytos make mention of any threatening behavior from Araza, aside from
one in accused the name of Pablo Hilvano? the drawing of the knife, which would have necessitated immediate retaliation on his part. Worse, Mado's
testimony was unsupported by the Medico Legal Report44 dated February 4, 2010. Were the testimony of Mado
true, i.e., that Araza actually delivered stabbing blows to Raytos, such material detail would certainly have been
A - Yes, ma'am. It was long (sic) time ago.
mentioned by the latter during his testimony, especially considering that his freedom was hanging in the
balance. Unfortunately, notwithstanding numerous opportunities to supply details on the incident, Raytos'
Q - And that Pablo Hilvano was even acquitted on that case because of your corroborative testimony? testimony was utterly silent on such matter. Accordingly, the Court affirms the uniform findings of the RTC and
CA and adopts the latter's appreciation of the evidence on record.
A - Yes, ma'am.
Further on this point, even assuming arguendo that unlawful aggression was present on the part of Araza, there
Q - So, it is now clear and you are changing your answer that it is not the first time you testified before this was no longer any danger on Raytos' person from the moment he disarmed the former by wresting possession of
Honourable Court. the knife. Raytos' admission during his cross-examination dispels all doubt:

A - Yes, ma'am. \

Q - So, your previous answer was a lie? COURT:

A - Yes, ma'am. Q - Now, you said you were able to wrestle the knife from the victim when he first delivered the stab blow at
your direction, is that correct?
Q - You likewise claim Mr. Mado that during the incident on February 1, 2010, you saw the accused Lorenzo
delivered stab blows on the front portion of the body of the victim David. Did I get it right? A - Yes, your Honor.

A – Yes ma'am, because they were into wrestling and grappling over the weapon and it was David that was Q - In other words, when you wrestled the knife from the possession of the victim, you were no longer in any
wounded. danger?

Q - Here at the front? A - Yes, your Honor, but I do not know what I have done.

(Prosecutor is pointing on the front of her body upon asking question) Q - In other words, because the victim was no longer in possession of any weapon, there was no more reason for
you to stab him?
A - Yes, ma'am.
A - Your Honor, it was so sudden and that's all I remember.
Q - Are you sure of that? You will not change your answer?
Q - And despite the fact that the victim was no longer in possession of the weapon, you continued stabbing him
A - I will not change my answer. for three (3) times in succession?
A - When I got hold and wrestled the knife from him, he did not move apart, he was just very close and I
immediately stab (sic) him successively. That's all I remember. 45 (Emphasis supplied)
Time and again, this Court has held that when an unlawful aggression that has begun has ceased to exist, the one
who resorts to self-defense has no right fo kill or even to wound the former aggressor. 46 Aggression, if not
continuous, does not constitute aggression warranting defense of one's self.47
Here, Raytos admitted that after obtaining possession of the weapon, he no longer had any reason to stab Araza
as in fact, there was no showing that the latter persisted in his alleged purpose of wanting to hurt Raytos. Thus,
based on his own statements, Raytos overstepped the acceptable boundaries of self-preservation when he
deliberately inflicted fatal injuries on Araza, even when the purported aggression had already ceased. 48 By killing
Araza, Raytos was no longer acting in self-defense but in retaliation against the former. 49
All told, the Court finds the evidence sorely lacking in establishing self-defense on the part of Raytos.
The Qualifying CircumstanceOf Treachery Was SufficientlyEstablished By The Evidence
To alleviate his conviction, Raytos contends that there was a dearth of evidence to show that the killing was
attended by the qualifying circumstance of treachery.50 Raytos specifically avers that had he wanted to ensure
that no risk would come to him, he would have chosen another time and place to stab Araza instead of inside the
dancing area, where many people were around. 51
The Court disagrees.
Treachery or alevosia, is present when the offender adopts means, methods, or forms in the execution of the
felony that ensure its commission without risk to himself arising from the defense which the offended party
might make. 52Alevosia is characterized by a deliberate, sudden and unexpected assault from behind, without
warning and without giving the victim a chance to defend himself or repel the assault and without risk to the
assailant. 53
In appreciating such circumstance, the RTC disposed as follows:
The victim was dancing when he was attacked. There was no confrontation. No forewarning. His dancing partner
was even misled into believing that accused only wanted to dance with the victim. But of course, it was just an
excuse, so that it would be easier for the accused to attain his purpose. It was so sudden that even the others
were unprepared to do anything to prevent the attack or at least minimize the injuries. It was an unexpected
occurrence right in the middle of a celebration which was intended to be a joyous one.
The medico legal report shows the following wounds:
(+) stab wound, scapular area, (R) 2 cm.
(+) stab wound, posterior axillary line (R), 3 cm.
(+) stab wound, (R) flank area, 3.5 cm.
(+) stab wound, infrascapular area, (L)
These wounds clearly disprove the claim of accused that he was suddenly able to stab the victim because he
wrestled with him, because actually, there was no fight that preceded the attack. There was plainly, murder. 54
To stress, the testimonies of the witnesses for the prosecution were unwavering as to the manner of killing - that
Raytos suddenly stabbed Araza from the back while holding the latter's shoulder. Further, that there were other
people around that could have lent their help to Araza is inconsequential as treachery considers only the victim's
means of defense at the time of the attack. Thus, so long as the accused deliberately employed means to ensure
the commission of the crime without risk to himself from retaliation by the victim, treachery can be properly
appreciated.
On this point, the Court's ruling in People v. Rellon55 finds relevance. In that case, the victim was stabbed from
behind while he was watching the singing and dancing during the Sinulog festival. Interestingly, the accused
therein, as in this case, claimed self-defense in stabbing the victim. Said the Court:
The accused Eugenio Rellon took the witness stand claiming self-defense. He narrated that on January 16, 1983
at around 5:30 in the afternoon, while walking towards his house at Tres de Abril, accused saw Arsenic Ram
sitting at the roadside when the latter suddenly stood up, took his knife and thrust it towards Rellon. Accused
was able to ward off the thrust by holding the deceased's arm and grappled for the possession of the knife.
Having succeeded in getting the knife, accused accidentally stabbed the deceased in the right chest. After the
stabbing incident, the accused left the scene.
The principal question, as in most criminal cases, is the credibility of witness. A review of the records of the case,
however, shows that the evidence undoubtedly supports the findings and conclusions of the trial in court its
judgment and conviction.
Through the testimony of Virginia Lusareto, the lone eyewitness to the crime, it has been established beyond
reasonable doubt that appellant stabbed Arsenio Ram at the back with a butcher's knife.
The trial court held that the crime committed was murder. It appreciated treachery when it took note of the fact
that the victim was suddenly stabbed from behind while he was watching the Sinulog dance. The trial court
stated:
x x xx
Treachery was appreciated in cases where the victim while sitting on the ground unarmed and absolutely
unprepared, and without the least suspicion of the danger he was incurring was suddenly and abruptly assaulted
by the 2 accused, without a word being uttered, and the first blow hit him on the nape of the back, knocking him
backwards to the ground, and as he tried to get up he was stabbed in the abdomen x x x. The same thing
happened in the case at bar. The characteristic and unmistakable manifestation of alevosia is the deliberate,
sudden and unexpected attack of the victim from behind, without any warning and without giving him an
opportunity to defend himself or repel the initial assault x x x.
When appellant stabbed the victim, the latter was sitting on a bench watching the singing and dancing during the
Sinulog festival. The victim was engrossed in the merrymaking when suddenly appellant stealthily stabbed him
from behind. An attack from behind is treachery x x x. 56 (Citations omitted; emphasis supplied)

Proceeding from the foregoing, the Court finds no reason to overturn the concurring findings of the R TC and the
CA with respect to the qualifying circumstance of treachery.

Finally, in view of the Court's ruling in People v. Jugueta, 57 the damages awarded in the questioned Decision are
hereby modified, increasing the civil indemnity, moral damages, and exemplary damages to ₱75,000.00 each.
The temperate damages are likewise increased to ₱50,000.00.

WHEREFORE, in view of the foregoing, the appeal is DISMISSED for lack of merit. The Decision dated February 26,
2016 of the Court of Appeals in CA-G.R. CR-HC. No. 01556, finding accused-appellant Lorenzo E. Raytos GUILTY
beyond reasonable doubt of the crime of Murder under Article 248 of the Revised Penal Code, is hereby
AFFIRMED with MODIFICATION. Accused-appellant is sentenced to suffer the penalty of reclusion perpetua and
ordered to pay the heirs of David Araza the amountof Seventy-Five Thousand Pesos (₱75,000.00) as civil
indemnity, Seventy-Five Thousand Pesos (₱75,000.00) as moral damages, Seventy-Five Thousand Pesos
(₱75,000.00) as exemplary damages, and Fifty Thousand Pesos (₱50,000.00) as temperate damages. All
monetary awards shall earn interest at the legal rate of six percent (6%) per annum from the date of finality of
this Decision until fully paid.

SO ORDERED.

ALFREDO BENJAMIN S. CAGUIOA

Associate Justice
 Republic of the Philippines Culled from the evidence for the prosecution is its following version:
SUPREME COURT
Manila While the deceased Acob’s mother Marina was at the community center of Barangay Nagsurot, Burgos, Ilocos
Norte on May 22, 1994, she heard a commotion at the yard of appellants. Soon after returning home, she told
SECOND DIVISION Acob that there was a quarrel at appellants’ compound.

G.R. No. 179708 April 16, 2009 Against his mother’s pleas, Acob repaired to appellants’ compound. Marina followed and upon reaching
appellants’ compound, she saw her nephew appellant Rogelio striking her son Acob twice at the left cheek and at
PEOPLE OF THE PHILIPPINES, Appellee, the back of his head with a piece of wood, causing Acob to fall on the ground. She thereafter saw Rogelio striking
vs. Acob’s father-in-law Duldulao twice on the face drawing his eyes to pop up, and again on the head causing him
MARCELO ALETA1, FERDINAND ALETA, ROGELIO ALETA, MARLO2 ALETA, JOVITO ALETA, Appellants. to fall on the ground.

DECISION Rogelio then ran towards the family house whereupon Marina heard gunshots. Rogelio’s brothers-co-appellants
Jovito, Marlo and Ferdinand and their father Marcelo at once began clubbing Acob and Duldulao with pieces of
wood, mainly on the face and head, as well as on different parts of their bodies.
CARPIO-MORALES, J.:

On appeal is the July 9, 2007 Court of Appeals Decision3 affirming with modification the October 25, 2001
Decision4of the Regional Trial Court (RTC) of Ilocos Norte, Branch 19, with station at Bangui, convicting accused-
appellant Marcelo and his sons-co-appellants Ferdinand, Rogelio, Marlo and Jovito, all surnamed Aleta, of
Murder in two cases.
Two Informations dated June 21, 1994 for the death of Celestino Duldulao (Duldulao) and Fernando Acob (Acob)
were filed against accused-appellants:
The accusatory portion of Criminal Case No. 1102-19 reads:
That on about May 22, 1994, at about 3:00 o’clock in the afternoon, all the above-named accused, conspiring,
confederating and mutually helping one another, with intent to kill and with abuse of superior strength, did then
and there willfully, unlawfully and feloniously strike and club with the use of hard objects one Celestino Duldulao
y Yadao inflicting upon the latter bodily injuries which caused his death as a consequence thereof.
CONTRARY TO LAW.5 (Underscoring supplied)
The accusatory portion of Criminal case No. 1103-19 reads:
That on about May 22, 1994, at about 3:00 o’clock in the afternoon, all the above-named accused, conspiring,
confederating and mutually helping one another, with intent to kill and with abuse of superior strength, did then
and there willfully, unlawfully and feloniously strike and club with the use of hard objects one FERNANDO
ACOB inflicting upon the latter bodily injuries which caused his death as a consequence thereof. (Underscoring
supplied)
CONTRARY TO LAW.6
The victim Acob was the son of appellant Marcelo’s sister Marina Acob (Marina), while the other victim Duldulao
was the victim Acob’s father-in-law.
Even while the victims were already lying prostrate on the ground, Marcelo, Jovito, Marlo, and Ferdinand
continued to hit them. And when Rogelio emerged from the house, he got another piece of wood and again
clubbed the victims.
As found by Dr. Arturo G. Llabore, a medico-legal officer of the National Bureau of Investigation-Regional Office,
San Fernando, La Union who supervised the exhumation and autopsy of the bodies of Acob and Duldulao on
June 3, 1994, the two victims suffered multiple abrasions, lacerations, open wounds, contusions and fractures on
their face, head, scalp, arms, legs and thighs; that Acob’s death was due to "hemorrhage, intercranial, severe,
secondary to traumatic injuries, head" while Duldulao’s was due to "hemorrhage, intercranial, severe, secondary
to traumatic injuries, head, multiple;" that both victims could have died within one (1) hour after the infliction of
the injuries; and that because of the severity and multiplicity of the injuries sustained, the same could not have
been inflicted by only one person.
Upon the other hand, appellants Ferdinand and Marlo interposed self-defense and defense of relative,
respectively. Additionally, Marlo invoked voluntary surrender as a mitigating circumstance. Marcelo, Rogelio and
Jovito invoked alibi. Their version of the incidents follows:
At around 3:00 in the afternoon, while Ferdinand and Marlo were resting at their compound, Acob arrived,
uttering "Oki ni inayo" (Vulva of your mother") and drew out a knife about six inches long. As Acob repeatedly
uttered "Vulva of your mother, I will kill all of you!," he thrust the knife at Ferdinand was able to evade it. Acob
and Ferdinand slipped and fell on the ground, After some struggle, Acob succeeded in stabbing Ferdinand on the
thigh. As Acob was about to stab Ferdinand again, Marlo took a piece of wood and struck him three times on the
face. Ferdinand thereafter fell on the ground at which instant Marlo dropped the wood.
Duldulao soon emerged and at about 10 meters away from Marlo, he uttered "Vulva of your mother." As
Duldulao looked as though he was going to strike Marlo with a piece of wood, Marlo took a piece of wood and
hit Duldulao twice on the left cheekbone, causing him to fall on the ground. He went on to club Duldulao, as well
as Acob, to make sure that "they will no longer live." Marlo thereafter pocketed the knife used by Acob in
stabbing Ferdinand.
Marlo never noticed where prosecution witnesses including Marina were during the incidents. Nor did he notice
where his father Marcelo and his brothers Rogelio and Jovito were.
Ferdinand later went to the Batac General Hospital where Dr. Edgar Cabading treated his stab wound, ½ to 1
centimeter deep, at his inner thigh.
The following morning, Marlo surrendered to the police. Marcelo and the other appellants also surrendered days
later.
Crediting the prosecution version, the trial court found appellants guilty beyond reasonable doubt of Murder in
both cases and sentenced each of them to suffer the death penalty and to pay, jointly and severally, ₱250,000 to
the heirs of Duldulao, and another ₱250,000.00 to the heirs of Acob by way of civil damages.
In arriving at its Decision, the trial court held that although what triggered the incidents was never explained,
Acob and Duldulao died as a result of the attacks on them, qualified by abuse of superior strength and cruelty.
In brushing aside Marlo’s claim of self-defense and Ferdinand’s defense of relative, the trial court held that,
assuming arguendo that there was unlawful aggression on the part of the victims, the same ceased when the
victims were already on the ground after Marlo hit them; and that force beyond what was necessary to repel the
aggression was employed when the victims were repeatedly clubbed.
The trial court also brushed aside Marcelo, Jovito and Rogelio’s alibi ─ that they were inside their house
attending to a sick relative during the incidents, given their silence and failure to deny the imputations against
them, their alibi having been invoked not by them but by Ferdinand and Marlo on their behalf.
Also brushing aside Marlo’s claim of voluntary surrender, the trial court noted that there was no conscious effort
on his part to surrender or acknowledge his guilt; and that that he did not resist but went peacefully with the
police did not amount to voluntary surrender.
Appellants moved for a reconsideration of the trial court’s decision, contending that there was no abuse of
superior strength as the same was not consciously adopted; and that the testimonies of the prosecution
witnesses, particularly Marina’s, are incredible or inconsistent. The motion for reconsideration having been
denied by Order7dated January 29, 2003, appellants appealed to the Court of Appeals, before which it raised the
same issues as those in their motion for reconsideration before the trial court. Additionally, they questioned the
penalty imposed upon them.
By the challenged Decision dated July 9, 2007, the appellate court affirmed appellants’ conviction of murder
but lowered the penalty imposed from death to reclusion perpetua. And it modified the damages awarded from
₱250,000.00 to the heirs of each victim to the following amounts: ₱50,000.00 as civil indemnity, ₱50,000.00 as
moral damages, and ₱25,000.00 as exemplary damages.
In modifying the penalty from death to reclusion perpetua, the appellate court noted that in the absence of any
mitigating or aggravating circumstance, the lesser of the two indivisible penalties should be imposed.
Hence, the present appeal, appellants maintaining that both the trial and the appellate courts erred in giving full
weight and credence to the testimonies of the prosecution witnesses.
As in most criminal cases, the present appeal hinges primarily on the issue of credibility of witness and of
testimony. As held in a number of cases, the trial court is best equipped to make the assessment on said issue
and, therefore, its factual findings are generally not disturbed on appeal, unless: (1) the testimony is found to be
clearly arbitrary or unfounded; (2) some substantial fact or circumstance that could materially affect the
disposition of the case was overlooked, misunderstood, or misinterpreted; or (3) the trial judge gravely abused
his or her discretion.8
From a considered review of the records of the cases, the Court finds that none of the above-stated exceptions is
present to warrant a reversal of the factual findings of the trial and appellate courts.
As held in a catena of cases and correctly applied by both lower courts, Marina’s positive identification
of allappellants as the assailants and her accounts of what transpired during the incidents, which were
corroborated on all material points by prosecution witnesses Loreta Duldulao (Loreta) and Willie Duldulao
(Willie), as well as the findings of the medico-legal officer, carry greater weight than appellants’ claims of self-
defense, defense of relative and alibi. More particularly, that Marina’s narration was so detailed all the more
acquires greater weight and credibility against all defenses, especially because it jibed with the autopsy findings. 9
Respecting the defense’s questioning of Loreta’s testimony that Willie had told her that Duldulao was already
dead, but was later to claim that on reaching the scene of the crime, Duldulao was still alive, lying on the ground
and being clubbed by appellants, the same deserves scant consideration. Far from being inconsistent, the same
is in sync with the other witnesses’ claim and Marlo’s own admission that appellants continued to club the two
victims even as they lay motionless and helpless on the ground.
At any rate, inconsistencies in the testimonies of witnesses which refer to minor and insignificant details, such as
whether Duldulao was still alive or not, cannot destroy Loreta’s testimony. Minor inconsistencies in fact even
guarantee truthfulness and candor.10
A witness’ testimony deserves full faith and credit where there exists no evidence to show any dubious reason or
improper motive why he should testify falsely against the accused, or why he should implicate the accused in a
serious offense.11 That the prosecution witnesses are all related by blood to appellants should a fortiori be
credited, absent a showing that they had motive to falsely accuse appellants.
As to the claims of self-defense, defense of relative, and alibi relied upon by appellants, the lower courts’ finding
the same unsubstantiated is well taken. People v. Caabay12 instructs:
Case law has it that like alibi, self-defense or defense of relatives are inherently weak defenses which, as
experience has shown, can easily be fabricated. If the accused admits the killing, the burden of evidence, as
distinguished from burden of proof, is shifted on him to prove with clear and convincing evidence the essential
elements of the justifying circumstance of self-defense, namely: (a) unlawful aggression on the part of the victim;
(b) reasonable necessity of the means employed by the accused to prevent or repel the unlawful aggression; and
(c) lack of sufficient provocation on the part of the accused defending himself. Defense of a relative requires the
following essential elements: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the
means employed by the accused to prevent or repel the unlawful aggression of the victim; and (c) in case of
provocation given by the person being attacked, the one evading the attack, defense had no part therein. For the
accused to be entitled to exoneration based on self-defense or defense of relatives, complete or incomplete, it is
essential that there be unlawful aggression on the part of the victim, for if there is no unlawful aggression, there
would be nothing to prevent or repel. For unlawful aggression to be appreciated, there must be an actual,
sudden and unexpected attack or imminent danger thereof, not merely a threatening or intimidating attitude.
(Emphasis supplied)
Assuming arguendo that Acob was indeed the aggressor, the aggression ceased the moment he was disarmed
and already lying on the ground after being struck by Marlo. Even if Marlo’s account that Duldulao approached
with a piece of wood above his head, the same, albeit intimidating, cannot be said to reek of imminent and
actual danger. When Marlo then continued to club Acob while in a prone position, and struck Duldulao after he
had fallen, self-defense and defense of relative no longer avail.13
It is settled that the moment the first aggressor runs away, unlawful aggression on the part of the first aggressor
ceases to exist; and when unlawful aggression ceases, the defender no longer has any right to kill or wound the
former aggressor; otherwise, retaliation and not self-defense is committed. Retaliation is not the same as self-
defense. In retaliation, the aggression that was begun by the injured party already ceased when the accused
attacked him, while in self-defense the aggression was still existing when the aggressor was injured by the
accused. (Emphasis supplied)
Besides, the self-defense claimed to have been employed by Marlo cannot be said to be reasonable.
The means employed by a person claiming self-defense must be commensurate to the nature and the extent of
the attack sought to be averted, and must be rationally necessary to prevent or repel an unlawful aggression.The
nature or quality of the weapon; the physical condition, the character, the size and other circumstances of the
aggressor as well as those of the person who invokes self-defense; and the place and the occasion of the assault
also define the reasonableness of the means used in self-defense.14 (Emphasis supplied)
Thus, even if Ferdinand’s and Marlo’s accounts of what transpired were true, Marlo’s repeated clubbing of the
already unarmed and helpless victims inside their own compound is clearly unreasonable. Consider the following
admission of Marlo during his direct examination:
Q.: And what happened to him when you were able to strike him?
A: He fell down, sir.
Q.: And when he fell down, what did you do next?
A: I again clubbed him, sir.
Q.: And after clubbing him for the second time, what did you do next?
A: I clubbed them alternately, sir.
Q.: Why did you club them alternately?
A.: Because they might still live and will again attacked (sic) us, sir.
Q.: Whom did you club alternately?
A.: Fernando Acob and Celestino Duldulao, your honor. (Emphasis supplied)
Marlo did not thus intend to merely repel the alleged attack. He wanted to be sure that the two victims would
not survive.
That Ferdinand sustained a ½ to 1 centimeter deep stab wound in the thigh does not necessarily prove that he
acted in self-defense or that Marlo acted in defense of a relative.15 Parenthetically, the knife, allegedly used by
Acob which Marlo claims to have taken, was not even presented in evidence.
As for the alibi of Marcelo, Rogelio and Jovito, for it to prosper, it must be shown that it was physically
impossible for them to have been at the scene of the crime at the approximate time of its commission.16 That
they were in Marcelo’s house attending to a relative who was allegedly having difficulty breathing, did not
render it impossible for them to have been at the scene of the crimes, the house being a mere 13.5 meters
away,17 more or less. Besides, it is impossible that they could not have noticed the commotion that preceded and
attended the incidents.
It bears noting that appellants enjoyed superiority in number (five) over the two victims, clearly showing abuse
of superior strength and that the force used by them was out of proportion to the means of defense available to
the victims.181avvphi1.zw+
More. Contrary to the contention of appellants, conspiracy was present during the attack. When two or more
persons aim their acts towards the accomplishment of the same unlawful object, each doing a part so that their
acts, though apparently independent, were in fact connected and cooperative indicating closeness of personal
association and a concurrence of sentiment, conspiracy may be inferred. And where there is conspiracy, the act
of one is deemed the act of all.19
The appellate court’s reduction of the penalty of death to reclusion perpetua in its July 9, 2007 decision is in
order, there being no mitigating nor aggravating circumstance in the present cases. In any event, in view of the
enactment of Republic Act No. 9346 or "An Act Prohibiting the Imposition of Death Penalty in the Philippines on
June 24, 2006, the imposition of the death penalty could not have been maintained. So too is the lowering of the
civil indemnity for the heirs of Fernando and Duldulao.
WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals dated July 9, 2007 is, in light of the
foregoing discussion, AFFIRMED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal Cases
Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused in a decision
rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance
of evident premeditation offset by the mitigating circumstance of voluntary surrender. The
proper penalty imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised
Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of
murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify
the heirs of the deceased Davis Q. Fleischer in the sum of P 12,000.00 as compensatory
damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's fees, the offended party
having been represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify
the heirs of the deceased Flaviano Rubia in the sum of P12,000.00 as compensatory
damages, P10,000.00 as moral damages, P2,000.00 as attorney's fees, the offended party
having been represent by a private prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar
Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia, were fencing the
land of George Fleischer, father of deceased Davis Fleischer. The place was in the boundary
of the highway and the hacienda owned by George Fleischer. This is located in the
municipality of Maitum, South Cotabato. At the place of the fencing is the house and rice
drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant was
taking his rest, but when he heard that the walls of his house were being chiselled, he arose
and there he saw the fencing going on. If the fencing would go on, appellant would be
prevented from getting into his house and the bodega of his ricemill. So he addressed the
group, saying 'Pare, if possible you stop destroying my house and if possible we will talk it
over what is good,' addressing the deceased Rubia, who is appellant's compadre. The
deceased Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As Fleischer
fell down, Rubia ran towards the jeep, and knowing there is a gun on the jeep, appellant fired
at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and
Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief,
p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal battle between the Fleischer
and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia the assistant manager,
on the one hand, and the land settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R. Nos.
28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of
the following antecedent facts:
Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and settled
in Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato. He established his
residence therein, built his house, cultivated the area, and was among those who petitioned then President
Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation and nearby Kalaong Plantation
totalling about 2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in Negros
Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leased and later
abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the survey
report was not submitted until 1946 because of the outbreak of the second world war. According to the survey,
only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales Application No.
21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be distributed among the settlers
(pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was declared open for disposition,
appraised and advertised for public auction. At the public auction held in Manila on August 14, 1948, Fleischer
and Company was the only bidder for P6,000.00. But because of protests from the settlers the corresponding
award in its favor was held in abeyance, while an investigator was sent by the Director of Lands to Kiamba in the
person of Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable settlement signed by the
representative of the settlers. This amicable settlement was later repudiated by the settlers, but the Director of
Lands, acting upon the report of Atty. Gozon, approved the same and ordered the formal award of the land in
question to Fleischer and Company. The settlers appealed to the Secretary of Agriculture and Natural Resources,
who, however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which then
consisted only of one sala, for the purpose of annulling the order of the Secretary of Agriculture and Natural
Resources which affirmed the order of the Director of Lands awarding the contested land to the company. The
settlers as plaintiffs, lost that case in view of the amicable settlement which they had repudiated as resulting
from threats and intimidation, deceit, misrepresentation and fraudulent machination on the part of the
company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16,
1965 the decision of the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24, 1966,
from the land which they had been occupying for about 30 years. Among those ejected was the appellant who,
to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of around P20,000.00, and transferred
to his other house which he built in 1962 or 1963 near the highway. The second house is not far from the site of
the dismantled house. Its ground floor has a store operated by Mrs. June Talens who was renting a portion
thereof. He also transferred his store from his former residence to the house near the highway. Aside from the
store, he also had a rice mill located about 15 meters east of the house and a concrete pavement between the
rice mill and the house, which is used for drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other leaders
filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain an injunction or annulment
of the order of award with prayer for preliminary injunction. During the pendency of this case, appellant on
February 21, 1967 entered into a contract of lease with the company whereby he agreed to lease an area of
approximately 100 to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for
Defense) for a consideration of P16.00 monthly. According to him, he signed the contract although the
ownership of the land was still uncertain, in order to avoid trouble, until the question of ownership could be
decided. He never paid the agreed rental, although he alleges that the milling job they did for Rubia was
considered payment. On June 25, 1968, deceased Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which
your house and ricemill are located as per agreement executed on February 21, 1967. You
have not paid as as even after repeated attempts of collection made by Mr. Flaviano Rubia
and myself.
In view of the obvious fact that you do not comply with the agreement, I have no alternative
but to terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps
from the land of Fleischers & Co., Inc. This six- month period shall expire on December 31,
1966.
In the event the above constructions have not been removed within the six- month period,
the company shall cause their immediate demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting bamboo
posts along the property line parallel to the highway. Some posts were planted right on the concrete drier of
appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent
to appellant's house (p. 231, t.s.n., supra). The fence, when finished, would have the effect of shutting off the
accessibility to appellant's house and rice mill from the highway, since the door of the same opens to the
Fleischers' side. The fencing continued on that fateful day of August 22, 1968, with the installation of four
strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning, was
awakened by some noise as if the wall of his house was being chiselled. Getting up and looking out of the
window, he found that one of the laborers of Fleischer was indeed chiselling the wall of his house with a crowbar
(p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased Fleischer was
commanding his laborers. The jeep used by the deceased was parked on the highway. The rest of the incident is
narrated in the People's Brief as above-quoted. Appellant surrendered to the police thereafter, bringing with him
shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following errors:
First Assignment of Error: That the lower court erred in convicting defendant-appellant
despite the fact that he acted in defense of his person; and
Second Assignment of Error: That the court a quo also erred in convicting defendant-
appellant although he acted in defense of his rights (p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them from
the window of his house with the shotgun which he surrendered to the police authorities. He claims, however,
that he did so in defense of his person and of his rights, and therefore he should be exempt from criminal
liability.
Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised Penal
Code, but in order for it to be appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself (Art. 11, par.
1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following words:
"Hindi, sigue, gademit, avante", in answer to his request addressed to his compadre, the deceased Rubia, when
he said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was
in reaction to his having been awakened to see the wall of his house being chiselled. The verbal exchange took
place while the two deceased were on the ground doing the fencing and the appellant was up in his house
looking out of his window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction
in him: "As if, I lost my senses and unknowingly I took the gun on the bed and unknowingly also I shot Mr.
Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant
testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia
looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep and
knowing that there was a firearm in the jeep and thinking that if he will take that firearm he
will kill me, I shot at him (p. 132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the prosecution. They claim, however, that
the deceased were in lawful exercise of their rights of ownership over the land in question, when they did the
fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons, consisting
of the deceased and their three laborers, were doing the fencing and chiselling of the walls of appellant's house.
The fence they were putting up was made of bamboo posts to which were being nailed strands of barbed wire in
several layers. Obviously, they were using tools which could be lethal weapons, such as nail and hammer, bolo or
bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not disputed that the jeep which
they used in going to the place was parked just a few steps away, and in it there was a gun leaning near the
steering wheel. When the appellant woke up to the sound of the chiselling on his walls, his first reaction was to
look out of the window. Then he saw the damage being done to his house, compounded by the fact that his
house and rice mill will be shut off from the highway by the fence once it is finished. He therefore appealed to
his compadre, the deceased Rubia, to stop what they were doing and to talk things over with him. But deceased
Fleischer answered angrily with 'gademit' and directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted in the
further chiselling of the walls of appellant's house as well as the closure of the access to and from his house and
rice mill-which were not only imminent but were actually in progress. There is no question, therefore, that there
was aggression on the part of the victims: Fleischer was ordering, and Rubia was actually participating in the
fencing. This was indeed aggression, not on the person of appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the contested
property, to destroy appellant's house and to shut off his ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of award
to Fleischer and Company was still pending in the Court of First Instance of Cotabato. The parties could not have
known that the case would be dismissed over a year after the incident on August 22, 1968, as it was dismissed
on January 23, 1970 on ground of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil
Case No. 240 filed in 1950 for the annulment of the award to the company, between the same parties, which the
company won by virtue of the compromise agreement in spite of the subsequent repudiation by the settlers of
said compromise agreement; and that such 1970 dismissal also carried the dismissal of the supplemental
petition filed by the Republic of the Philippines on November 28, 1968 to annul the sales patent and to cancel
the corresponding certificate of title issued to the company, on the ground that the Director of Lands had no
authority to conduct the sale due to his failure to comply with the mandatory requirements for publication. The
dismissal of the government's supplemental petition was premised on the ground that after its filing on
November 28, 1968, nothing more was done by the petitioner Republic of the Philippines except to adopt all the
evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case No. 755
filed on November 14, 1966 and his execution of the contract of lease on February 21, 1967 was just to avoid
trouble. This was explained by him during cross-examination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we better rent the place because
even though we do not know who really owns this portion to avoid trouble. To avoid trouble
we better pay while waiting for the case because at that time, it was not known who is the
right owner of the place. So we decided until things will clear up and determine who is really
the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) within which to
vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up to that time,
instead of chiselling the walls of his house and closing appellant's entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or intimidation as long as
there is a possessor who objects thereto. He who believes that he has an action or a right to
deprive another of the holding of a thing must invoke the aid of the competent court, if the
holder should refuse to deliver the thing.
Art. 539. Every possessor has a right to be respected in his possession; and should he be
disturbed therein he shall be protected in or restored to said possession by the means
established by the laws and the Rules of Court (Articles 536 and 539, Civil Code of the
Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to appellant's
house, nor to close his accessibility to the highway while he was pleading with them to stop and talk things over
with him. The assault on appellant's property, therefore, amounts to unlawful aggression as contemplated by
law.
Illegal aggression is equivalent to assault or at least threatened assault of immediate and
imminent kind (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist,
pursuant to Art. 429 of the Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from
the enjoyment and disposal thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion
or usurpation of his property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or
defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his
shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack of sufficient provocation on
the part of appellant who was defending his property. As a matter of fact, there was no provocation at all on his
part, since he was asleep at first and was only awakened by the noise produced by the victims and their laborers.
His plea for the deceased and their men to stop and talk things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for
justification are present. He should therefore be held responsible for the death of his victims, but he could be
credited with the special mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of
the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be appreciated
in this case because of the presence of provocation on the part of the deceased. As WE held earlier in People vs.
Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by the
aggressor was deliberately chosen with a special view to the accomplishment of the act without risk to the
assailant from any defense that the party assailed might have made. This cannot be said of a situation where the
slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently established.
The only evidence presented to prove this circumstance was the testimony of Crisanto Ibañez, 37 years old,
married, resident of Maitum, South Cotabato, and a laborer of Fleischer and Company, which may be
summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn
near the house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum, South Cotabato,
when the accused and his wife talked to him. Mrs. Narvaez asked him to help them, as he
was working in the hacienda. She further told him that if they fenced their house, there is a
head that will be broken. Mamerto Narvaez added 'Noy, it is better that you will tell Mr.
Fleischer because there will be nobody who will break his head but I will be the one.' He
relayed this to Mr. Flaviano Rubia, but the latter told him not to believe as they were only
Idle threats designed to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident
premeditation. As WE have consistently held, there must be "direct evidence of the planning or preparation to
kill the victim, .... it is not enough that premeditation be suspected or surmised, but the criminal intent must be
evidenced by notorious outward acts evincing the determination to commit the crime" (People vs. Ordioles, 42
SCRA 238). Besides, there must be a "showing" that the accused premeditated the killing; that the culprit clung
to their (his) premeditated act; and that there was sufficient interval between the premeditation and the
execution of the crime to allow them (him) to reflect upon the consequences of the act" (People vs. Gida, 102
SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer, neutralizes
his credibility.
Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor that
the accused premeditated the killing, and clung to his premeditated act, the trial court's conclusion as to the
presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and
destroying his house and to talk things over just before the shooting.
But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary surrender,
it appearing that appellant surrendered to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant awoke to
find his house being damaged and its accessibility to the highway as well as of his rice mill bodega being closed.
Not only was his house being unlawfully violated; his business was also in danger of closing down for lack of
access to the highway. These circumstances, coming so near to the time when his first house was dismantled,
thus forcing him to transfer to his only remaining house, must have so aggravated his obfuscation that he lost
momentarily all reason causing him to reach for his shotgun and fire at the victims in defense of his rights.
Considering the antecedent facts of this case, where appellant had thirty years earlier migrated to this so-called
"land of promise" with dreams and hopes of relative prosperity and tranquility, only to find his castle crumbling
at the hands of the deceased, his dispassionate plea going unheeded-all these could be too much for any man-he
should be credited with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any qualifying
nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of incomplete defense-
in view of the presence of unlawful aggression on the part of the victims and lack of sufficient provocation on the
part of the appellant-and by two generic mitigating circumstance of voluntary surrender and passion and
obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant to
Article 69, supra, the penalty lower by one or two degrees shall be imposed if the deed is not wholly excusable
by reason of the lack of some of the conditions required to justify the same. Considering that the majority of the
requirements for defense of property are present, the penalty may be lowered by two degrees, i.e., to prision
correccional And under paragraph 5 of Article 64, the same may further be reduced by one degree, i.e., arresto
mayor, because of the presence of two mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World Airways (43
SCRA 397), the award for moral damages was reduced because the plaintiff contributed to the gravity of
defendant's reaction. In the case at bar, the victims not only contributed but they actually provoked the attack
by damaging appellant's properties and business. Considering appellant's standing in the community, being
married to a municipal councilor, the victims' actuations were apparently designed to humiliate him and destroy
his reputation. The records disclose that his wife, councilor Feliza Narvaez, was also charged in these two cases
and detained without bail despite the absence of evidence linking her to the killings. She was dropped as a
defendant only upon motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816),
but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite its
extensive landholdings in a Central Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability-financial and otherwise-to carry out its land
accumulation scheme, the lowly settlers, who uprooted their families from their native soil in Luzon to take
advantage of the government's resettlement program, but had no sufficient means to fight the big landowners,
were the ones prejudiced. Thus, the moral and material suffering of appellant and his family deserves leniency as
to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or arrests
mayor and fine who has no property with which to meet his civil liabilities to serve a subsidiary imprisonment at
the rate of one (1) day for each P 2.50. However, the amendment introduced by Republic Act No. 5465 on April
21, 1969 made the provisions of Art. 39 applicable to fines only and not to reparation of the damage caused,
indemnification of consequential damages and costs of proceedings. Considering that Republic Act 5465 is
favorable to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article
22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES,
MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY
TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT
ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF
FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF
FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT
AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW SINCE
HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.

Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin Vasquez and Relova,
JJ., concur.

Aquino, J., is on leave.

 Republic of the Philippines intercourse, but after the act, if any such there was, because from the fact that she was rising up and the man
SUPREME COURT was buttoning his drawers, it does not necessarily follow that a man and a woman had committed the carnal act.
Manila
We cannot, therefore, entirely accept the defense sought to be established by the accused, first, because his
EN BANC testimony is improbable. It is not conceivable that the accused had only mildly counseled his wife not to repeat
committing adultery with Isabelo, instead of taking harsher measures as is natural in such circumstances, if the
G.R. No. 46310 October 31, 1939 were true that he had surprised the two offender in the act of adultery on returning to his house at midday on
the date in question. Neither is it likely that a woman thirty years of age, like Sixta Quilason, and twenty-five-year
old Isabelo Evangelio, both of sound judgment as is to be supposed, had dared to have carnal intercourse near
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
the toilet of the offended party house, a place which is naturally frequented by some persons. The circumstance
vs.
that the place was covered by weeds, does not authorize the conclusion that the offenders could lay concealed
MARCIANO GONZALES, defendant-appellant.
under the weeds because the latter do not usually grow to such height as to conceal or cover two persons
committing the guilt act. It seems that under the circumstances it is unnatural that they would execute the act in
Eduvigio E. Antona for appellant. a place uncovered and open. We do not want to suppose that the sexual passion of two persons would border
Office of the Solicitor-General Ozaeta and Assistant Attorney Zulueta for appellee. on madness. Secondly, because even assuming that the accused caught his wife rising up and Isabelo cannot
invoke the privilege of article 247 of the Revised Penal Code, because he did not surprise the supposed offenders
in the very act of committing adultery, but thereafter, if the respective positions of the woman and the man
were sufficient to warrant the conclusion that they had committed the carnal act. (3 Viada, Penal Code, p. 96;
People vs. Marquez, 53 Phil., 260).
CONCEPCION, J.:
Taking into account the mitigating circumstances of lack of intention on the part of the accused to commit so
Marciano Gonzales appealed from the judgment of the Court of First Instance of Tayabas which found him guilty grave a wrong as that committed upon the person of the deceased, and of his lack of instruction, the appealed
of parricied and sentenced him to reclusion perpetua with the accessories of the law, to indemnify the heirs of judgment is modified, and the accused is sentenced to the penalty of twelve years and one day to twenty years
the deceased, Sixta Quilason, in the amount of P1,000, and to pay the costs. of reclusion temporal and indemnify the heirs of the deceased in the amount of P1,000 with the costs. So
ordered.

At the trial, the appellant testified that at midday on June 2, 1938, on returning to his house from the woods, he
surprised his wife, Sixta Quilason, and Isabelo Evangelio in the act, told her that the man was the very one who Villa-Real and Diaz, JJ., concur.
used to ask rice and food from them, and counseled her not to repeat the same faithlessness. His wife, promised
him not to do the act again. Thereafter — the accused continued testifying — he left the house and went
towards the South to see his carabaos. Upon returning to his house at above five o'clock in the afternoon, and
not finding his wife there, he looked for her and found her with Isabelo near the toilet of his house in a place
covered with underbush, who was standing and buttoning his drawers, immediately took to his heels. The
accused went after him, but unable to overtake him, he returned to where his wife was and, completely
obfuscated, attacked her with a knife without intending to kill her. Thereafter, he took pity on her and took her
dead body to his house.

The appellant contends that, having surprised his wife, in the afternoon of the date in question, under
circumstances indicative that she had carnal intercourse with Isabelo, he was entitled to the privilege afforded
by article 247 of the Revised Penal code providing: "Any legally married person who, having surprised his
spouse in the act of committing sexual intercourse with another person, shall kill either of them or both of them
in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty
of destierro. (Emphasis ours.)

We do not believe that the accused can avail himself of the aforesaid article, because the privilege there granted
is conditioned on the requirement that the spouse surprise the husband or the wife in the act of committing
sexual intercourse with another person; the accused did not surprise his wife in the very act or carnal

EN BANC
G.R. No. 135981 September 29, 2000
PEOPLE OF THE PHILIPPINES, appellee,
vs.
MARIVIC GENOSA, appellant.
RESOLUTION
PANGANIBAN, J.:
It is a hornbook rule that an appeal in criminal cases opens the entire records to review. The Court may pass
upon all relevant issues, including those factual in nature and those that may not have been brought before the
trial court. This is true especially in cases involving the imposition of the death penalty, in which the accused
must be allowed to avail themselves of all possible avenues for their defense. Even novel theories such as the
"battered woman syndrome," which is alleged to be equivalent to self-defense, should be heard, given due
consideration and ruled upon on the merits, not rejected merely on technical or procedural grounds. Criminal
conviction must rest on proof of guilt beyond reasonable doubt.
The Case
For resolution by the Court is an Urgent Omnibus Motion filed by Appellant Marivic Genosa y Isidro in
connection with the automatic review of the September 25, 1998 "Judgment"1 of the Regional Trial Court (RTC)
of Ormoc City2in Criminal Case No. 5016-0. The RTC found her guilty of parricide aggravated by treachery and
sentenced her to death.
In an Information3 dated November 14, 1996, Provincial Prosecutor I Rosario D. Beleta charged appellant-movant
with parricide allegedly committed as follows:
"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of
Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to
kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack,
assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which
the accused had provided herself for the purpose, [causing] the following wounds, to wit:
'Cadaveric spasm.
'Body on the 2nd stage of decomposition.
'Face, black, blown[ ]up & swollen w/ evident post- mortem lividity. Eyes protruding from its sockets and tongue
slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the
brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura and
meningeal vessels producing severe intracranial hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death."
After arraignment and trial, the court a quo promulgated its Judgment, the dispositive portion of which reads:
"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro,
GUILTY beyond reasonable doubt of the crime of parricide as provided under Article 246 of the Revised Penal
Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and
none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos
(P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine
currency as moral damages."
The Antecedents
Prior to the filing of her Appeal Brief, appellant submitted an Urgent Omnibus Motion,4 to bring "to the attention
of the x x x Court certain facts and circumstances which, if found valid, could warrant the setting aside of [her]
conviction and the imposition of the death penalty."
Appellant alleges that the trial court grievously erred in concluding that she had lied about the means she
employed in killing her husband. On the contrary, she had consistently claimed that she had shot her husband.
Yet the trial judge simply ruled that the cause of his death was "cardiopulmonary arrest secondary to severe
intracranial hemorrhage due to a depressed fracture of the occipital bone," which resulted from her admitted
act of "smashing" him with a pipe. Such conclusion was allegedly unsupported by the evidence on record, which
bore no forensic autopsy report on the body of the victim.
Appellant further alleges that despite the evidence on record of repeated and severe beatings she had suffered
at the hands of her husband, the trial court failed to appreciate her self-defense theory. She claims that under
the surrounding circumstances, her act of killing her husband was equivalent to self-defense. Furthermore, she
argues that if she "did not lie about how she killed her husband, then she did not lie about the abuse she
suffered at his hands."
She thus prays for the following reliefs:5
"1. The Honorable Court allow an exhumation of the body of the victim, Ben M. Genosa, and a re-
examination of the cause of death.
2. The Honorable Court submit accused-appellant for examination by qualified psychologists and
psychiatrists of the Court to determine her state of mind at the time of the killing of her spouse, Ben
M. Genosa.
3. Thereafter, the Honorable Court allow the reports of the psychologists and psychiatrists to form part
of the records of the case for purposes of the automatic review or, in the alternative, to allow a partial
re-opening of the case before a lower court in Metro Manila to admit the testimony of said
psychologists and psychiatrists."
On August 22, 2000, the solicitor general, on behalf of the State, filed his Comment,6 which substantially
objected to the Motion on the ground that appellant had not been "deprived of her right to due process,
substantial or procedural."
The Issues
In brief, the issues for our resolution are (1) whether the body of the victim should be exhumed and reexamined
in order to ascertain the cause of his death, and (2) whether the appellant should be examined by qualified
psychologists or psychiatrists in order to determine her state of mind at the time of the killing.
The Court's Ruling
The Court grants in part the Motion of appellant. We remand the case to the RTC for the reception of evidence
from qualified psychologists or psychiatrists whom the parties may present to establish her state of mind at the
time of the killing.
First Issue: No Need for a Reexamination of Cause of Death
Accused-appellant seeks the exhumation of the victim's body to be able to determine his exact cause of death,
assailing the court a quo's conclusion that he was "smashed or beaten at the back of his head" rather than shot,
as claimed by appellant.
Considering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a
metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the victim's death. There is no need to exhume the
body at this time and conduct an autopsy thereon for the purpose.
Moreover, the matter of proving the cause of death should have been made before the trial court. Time and
again, we have said that this Court is not a trier of facts. Neither will it authorize the firsthand reception of
evidence, where the opportunity to offer the same was available to the party during the trial stage. Consistent
with this principle alone, the prayer sought by appellant for the exhumation of the victim's body cannot be
granted.
Second Issue: The Need to Determine Appellant's State of Mind at the Time of the Killing
In seeking to be "examined and evaluated by psychologists and psychiatrists to bring into evidence the abuse
inflicted upon her; [and] to determine whether such abuse will support the 'battered woman syndrome'," the
appellant brings to the fore a novel defense theory. Through Counsel Katrina Legarda, she asks the Court to "re-
evaluate the traditional elements" used in determining self-defense and to consider the "battered woman
syndrome" as a viable plea within the concept of self-defense.
Allegedly, there are four characteristics of the syndrome: (1) the woman believes that the violence was her fault;
(2) she has an inability to place the responsibility for the violence elsewhere; (3) she fears for her life and/or her
children's lives; and (4) she has an irrational belief that the abuser is omnipresent and omniscient. 7 Living in
constant danger of harm or death, she knows that future beatings are almost certain to occur and will escalate
over time. Her intimate knowledge of the violent nature of her batterer makes her alert to when a particular
attack is forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and
constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive possible solutions
to the problem other than to injure or kill her batterer. She is seized by fear of an existing or impending lethal
aggression and thus would have no opportunity beforehand to deliberate on her acts and to choose a less fatal
means of eliminating her sufferings.
Appellant further alleges that the syndrome is already a recognized form of self-defense in the United States and
in Europe. In the US particularly, it is classified as a post-traumatic stress disorder, rather than a form of mental
illness.8 It has been held admissible in order to assess a defendant's perception of the danger posed by the
abuser.9
In view of the foregoing, Appellant Genosa pleads that she be allowed to present evidence to prove that her
relationship with her spouse-victim had afflicted her with the syndrome. Allegedly, an expert can explain how
her experiences as a battered woman had affected her perception of danger and her honest belief in its
imminence, and why she had resorted to force against her batterer.
The records of the case already bear some evidence on domestic violence between appellant and her deceased
husband. A defense witness, Dr. Dino Caing, testified that she had consulted him at least six (6) times due to
injuries related to domestic violence and twenty-three (23) times for severe hypertension due to emotional
stress.10Even the victim's brother and mother attested to the spouses' quarrels every now and then. The court a
quo, however, simplistically ruled that since violence had not immediately preceded the killing, self-defense
could not be appreciated.
Indeed, there is legal and jurisprudential lacuna with respect to the so-called "battered woman syndrome" as a
possible modifying circumstance that could affect the criminal liability or penalty of the accused. The discourse
of appellant on the subject in her Omnibus Motion has convinced the Court that the syndrome deserves serious
consideration, especially in the light of its possible effect on her very life. It could be that very thin line between
death and life or even acquittal. The Court cannot, for mere technical or procedural objections, deny appellant
the opportunity to offer this defense, for any criminal conviction must be based on proof of guilt beyond
reasonable doubt. Accused persons facing the possibility of the death penalty must be given fair opportunities to
proffer all defenses possible that could save them from capital punishment.
In People v. Parazo,11 after final conviction of appellant therein, this Court granted his Urgent Omnibus Motion
and allowed him to undergo mental, neurologic and otolaryngologic examination and evaluation to determine
whether he was a deaf-mute. Based on findings that he really was deaf and mute, yet unaided during the trial by
an expert witness who could professionally understand and interpret his actions and mutterings, the Court
granted him re-arraignment and retrial. It justified its action on the principle that "only upon proof of guilt
beyond reasonable doubt may [the accused] be consigned to the lethal injection chamber."
More recently in People v. Estrada,12 we likewise nullified the trial proceedings and remanded the case "to the
court a quo for a conduct of a proper mental examination on accused-appellant, a determination of his
competency to stand trial, and for further proceedings." In that case, the defense counsel had moved to suspend
the arraignment of the accused, who could not properly and intelligently enter a plea because of his mental
defect, and to confine him instead in a psychiatric ward. But the trial court denied the Motion, after simply
propounding questions to the accused and determining for itself that he could understand and answer them
"intelligently." After trial, he was convicted of murder aggravated by cruelty and thus sentenced to death.
of the cases for purposes of automatic review. The prosecution has likewise the right to a fair trial, which
includes the opportunity to cross-examine the defense witnesses and to refute the expert opinion given. Thus,
consistent with the principle of due process, a partial reopening of the case is apropos, so as to allow the defense
the opportunity to present expert evidence consistent with our foregoing disquisition, as well as the prosecution
the opportunity to cross examine and refute the same.
WHEREFORE, the Urgent Omnibus Motion of Appellant Marivic Genosa is PARTLY GRANTED. The case is
hereby REMANDED to the trial court for the reception of expert psychological and/or psychiatric opinion on the
"battered woman syndrome" plea, within ninety (90) days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any,
submitted.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

In nullifying the trial proceedings, this Court noted:13

"The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial judge is not a
psychiatrist or psychologist or some other expert equipped with the specialized knowledge of determining the
state of a person's mental health. To determine the accused-appellant's competency to stand trial, the court, in
the instant case, should have at least ordered the examination of accused-appellant, especially in the light of the
latter's history of mental illness."

It was held that in denying appellant an examination by a competent medical expert, the trial court practically
denied him a fair trial prior to conviction, in violation of his constitutional rights.

Moreover, proof of insanity could have exempted appellant from criminal liability. If the accused had not
performed the act voluntarily, then he could not have been criminally liable. The Court, through Mr. Justice
Reynato S. Puno, emphasized:

"The basic principle in our criminal law is that a person is criminally liable for a felony committed by him. Under
the classical theory on which our penal code is mainly based, the basis of criminal liability is human free will. Man
is essentially a moral creature with an absolutely free will to choose between good and evil. When he commits a
felonious or criminal act (delito doloso), the act is presumed to have been done voluntarily, i.e., with freedom,
intelligence and intent. Man, therefore, should be adjudged or held accountable for wrongful acts so long as free
will appears unimpaired."14

In the instant case, it is equally important to determine whether Appellant Genosa had acted freely, intelligently
and voluntarily when she killed her spouse. The Court, however, cannot properly evaluate her battered-woman-
syndrome defense, absent expert testimony on her mental and emotional state at the time of the killing and the
possible psychological cause and effect of her fatal act. Unlike in Parazo, we cannot simply refer her for proper
psychological or psychiatric examination and thereafter admit the findings and evaluation as part of the records

SECOND DIVISION
March 15, 2017
G.R. No. 195021
NICOLAS VELASQUEZ and VICTOR VELASQUEZ, Petitioners
vs
PEOPLE OF THE PHILIPPINES, Respondent
DECISION
LEONEN, J.:
An accused who pleads a justifying circumstance under Article 11 of the Revised Penal Code1 admits to the
commission of acts, which would otherwise engender criminal liability. However, he asserts that he is justified in
committing the acts. In the process of proving a justifying circumstance, the accused risks admitting the imputed
acts, which may justify the existence of an offense were it not for the exculpating facts. Conviction follows if the
evidence for the accused fails to prove the existence of justifying circumstances.
Through this Petition for Review on Certiorari2 under Rule 45 of the Rules of Court, the accused petitioners pray
that the assailed March 17, 2010 Decision3 and December 10, 2010 Resolution4 of the Court of Appeals in CA-
G.R. CR. No. 31333 be reversed and set aside, and that they be absolved of any criminal liability.
The Court of Appeals' assailed rulings sustained the July 25, 2007 Decision5 of the Regional Trial Court, Branch
41, Dagupan City, which found petitioners guilty beyond reasonable doubt of attempted murder.
In an Information, petitioners Nicolas Velasquez (Nicolas) and Victor Velasquez (Victor), along with four (4)
others -Felix Caballeda (Felix), Jojo Del Mundo (Jojo), Sonny Boy Velasquez (Sonny), and Ampong Ocumen
(Ampong) - were charged with attempted murder under Article 248,6 in relation to Article 6,7 of the Revised
Penal Code, as follows:
That on May 24, 2003 in the evening at Brgy. Palua, Mangaldan, Pangasinan and within the jurisdiction of this
Honorable Court, the above named accused while armed with stones and wooden poles, conspiring,
confederating and mutually helping one another, with intent to kill, with treachery and abuse of superior
strength, did, then and there willfully, unlawfully and feloniously attack, maul and hit JESUS DEL MUNDO
inflicting upon him injuries in the vital parts of his body, the said accused having thus commenced a felony
directly by overt acts, but did not perform all the acts of execution which could have produced the crime of
Murder but nevertheless did not produce it by reason of some causes or accident other than their own
spontaneous desistance to his damage and prejudice.
Contrary to Article 248 in relation to Article 6 and 50 of the Revised Penal Code.8
All accused, except Ampong, who remained at large, pleaded not guilty upon arraignment. 9 Trial then ensued.10
According to the prosecution, on May 24, 2003, at about 10:00 p.m., the spouses Jesus and Ana Del Mundo (Del
Mundo Spouses) left their home to sleep in their nipa hut, which was about 100 meters away.11 Arriving at the
nipa hut, the Del Mundo Spouses saw Ampong and Nora Castillo (Nora) in the midst of having sex.12 Aghast at
what he perceived to be a defilement of his property, Jesus Del Mundo (Jesus) shouted invectives at Ampong
and Nora, who both scampered away.13 Jesus decided to pursue Ampong and Nora, while Ana Del Mundo (Ana)
left to fetch their son, who was then elsewhere.14 Jesus went to the house of Ampong's aunt, but neither
Ampong nor Nora was there.15 He began making his way back home when he was blocked by Ampong and his
fellow accused.16
Without provocation, petitioner Nicolas hit the left side of Jesus' forehead with a stone. Petitioner Victor also hit
Jesus' left eyebrow with a stone.17 Accused Felix did the same, hitting Jesus above his left ear.18 Accused Sonny
struck Jesus with a bamboo, hitting him at the back, below his right shoulder. 19 Ampong punched Jesus on his
left cheek. The accused then left Jesus on the ground, bloodied. Jesus crawled and hid behind blades of grass,
fearing that the accused might return. He then got up and staggered his way back to their house.20
Jesus testified on his own ordeal. In support of his version of the events, the prosecution also presented the
testimony of Maria Teresita Viado (Maria Teresita). Maria Teresita was initially approached by Jesus' wife, Ana,
when Jesus failed to immediately return home.21 She and Ana embarked on a search for Jesus but were
separated.22 At the sound of a man being beaten, she hid behind some bamboos.23 From that vantage point, she
saw the accused mauling Jesus.24 The prosecution noted that about four (4) or five (5) meters away was a lamp
post, which illuminated the scene.25
At the Del Mundo Spouses' residence, Maria Teresita recounted to them what she had witnessed (Jesus had
managed to return home by then).26 Ana and Maria Teresita then brought Jesus to Barangay Captain Pili ta
Villanueva, who assisted them in bringing Jesus to the hospital. 27
After undergoing an x-ray examination, Jesus was found to have sustained a crack in his skull.28 Dr. Jose D. De
Guzman (Dr. De Guzman) issued a medico-legal certificate indicating the following findings:
x.x. Positive Alcoholic Breath
3 ems lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left
Abrasion back left multi linear approximately 20 cm
Abrasion shoulder left, confluent 4x10 cm
Depressed skull fracture parietal area left.
x.x.29
Dr. De Guzman noted that Jesus' injuries required medical attention for four (4) to six (6) weeks.30 Jesus was also
advised to undergo surgery.31 He was, however, unable to avail of the required medical procedure due to
shortage of funds.32
The defense offered a different version of events.
According to the accused, in the evening of May 24, 2003, petitioner Nicolas was roused in his sleep by his wife,
Mercedes Velasquez (Mercedes), as the nearby house of petitioner Victor was being stoned.33
Nicolas made his way to Victor's place, where he saw Jesus hacking Victor's door. Several neighbors - the other
accused - allegedly tried to pacify Jesus.34 Jesus, who was supposedly inebriated, vented his ire upon Nicolas and
the other accused, as well as on Mercedes.35 The accused thus responded and countered Jesus' attacks, leading
to his injuries.36
In its July 25, 2007 Decision,37 the Regional Tnal Court, Branch 41, Dagupan City found petitioners and Felix
Caballeda guilty beyond reasonable doubt of attempted murder.38 The court also found Sonny Boy Velasquez
guilty beyond reasorable doubt of less serious physical injuries.39 He was found to have hit Jesus on the back
with a bamboo rod. Jojo Del Mundo was acquitted.40 The case was archived with respect to Ampong, as he
remained at large.41
The dispositive portion of its Decision read:
WHEREFORE, premises considered, judgment is hereby rendered finding accused NICOLAS VELASQUEZ, VICTOR
VELASQUEZ and FELIX CABALLEDA guilty beyond reasonable doubt of the crime of Attempted Murder defined
and penalized under Article 248 in relation to Art.ides 6, paragraph 3 and 51 of the Revised Penal Code, and
pursuant to the law, sentences each of them to suffer on (sic) indeterminate penalty of four (4) years and one (1)
day of Arrested (sic) Mayor in its maximum period as minimum to eight (8) years of Prison (sic) Correctional (sic)
in its maximum period to Prison (sic) Mayor in its medium period as maximum and to pay proportionately to
private complainant Jesus del Mundo the amount of Php55,000.00 as exemplary damages, and to pay the cost of
suit.
The Court likewise finds the accused SONNY BOY VELASQUEZ [guilty] beyond reasonable doubt of the [crime] of
Less Serious Physical Injuries defined and penalized under Article 265 of the Revised Penal Code and pursuant
thereto, he is hereby sentenced to suffer the penalty of Arresto Mayor on one (1) month and one (1) day to six
(6) months.
Accused JOJO DEL MUNDO is hereby acquitted on the ground of absence of evidence.
With respect to accused AMPONG OCUMEN, the case against him is archived without prejudice to its revival as
soon as he is arrested and brought to the jurisdiction of this Court.42
Petitioners and Felix Caballeda filed a motion for reconsideration, which the Regional Trial Court denied. 43
On petitioners' and Caballeda's appeal, the Court of Appeals found that petitioners and Caballeda were only
liable for serious physical injuries because "first, intent to kill was not attendant inasmuch as the accused-
appellants, despite their superiority in numbers and strength, left the victim alive and, second, none of [the]
injuries or wounds inflicted upon the victim was fatal."44 The Court of Appeals thus modified the sentence
imposed on petitioners and Caballeda.
The dispositive portion of its assailed March 1 7, 2010 Decision45 read:
WHEREFORE, premises considered, the July 25, 2007 Decision of Branch 41, Regional Trial Court of Dagupan City
is hereby MODIFIED. Instead, accused-appellants are found guilty of Serious Physical Injuries and each of them is
sentenced to suffer the penalty of imprisonment of six (6) months of arresto mayor as minimum to four (4) years
and two (2) months of prisi6n correccional as maximum.
SO ORDERED.46 (Emphasis in the original)
Following the denial of their Motion for Reconsideration, petitioners filed the present Petition.47 They insist on
their version of events, particularly on how they and their co-accused allegedly merely acted in response to Jesus
Del Mundo's aggressive behavior.
For resolution is the issue of whether petitioners may be held criminally liable for the physical harm inflicted on
Jesus Del Mundo. More specifically, this Court is asked to determine whether there was sufficient evidence: first,
to prove that justifying circumstances existed, and second, to convict the petitioners.
I
Petitioners' defense centers on their claim that they acted in defense of themselves, and also in defense of
Mercedes, Nicolas' wife and Victor's mother. Thus, they invoke the first and second justifying circumstances
under Article 11 of the Revised Penal Code:
ARTICLE 11. Justifying Circumstances. - The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate,
natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by
consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next
preceding circumstance are present, and the further requisite, in case the provocation was given by the person
attacked, that the one making defense had no part therein.
A person invoking self-defense (or defense of a relative) admits to having inflicted harm upon another person - a
potential criminal act under Title Eight (Crimes Against Persons) of the Revised Penal Code. However, he or she
makes the additional, defensive contention that even as he or she may have inflicted harm, he or she
nevertheless incurred no criminal liability as the looming danger upon his or her own person (or that of his or her
relative) justified the infliction of protective harm to an erstwhile aggressor.
The accused's admission enables the prosecution to dispense with discharging its burden of proving that the
accused performed acts, which would otherwise be the basis of criminal liability. All that remains to be
established is whether the accused were justified in acting as he or she did. To this end, the accused's case must
rise on its own merits:
It is settled that when an accused admits [harming] the victim but invokes self-defense to escape criminal
liability, the accused assumes the burden to establish his plea by credible, clear and convincing evidence;
otherwise, conviction would follow from his admission that he [harmed] the victim. Self-defense cannot be
justifiably appreciated when uncorroborated by independent and competent evidence or when it is extremely
doubtful by itself. Indeed, in invoking self-defense, the burden of evidence is shifted and the accused claiming
self-defense must rely on the strength of his own evidence and not on the weakness of the prosecution.48
To successfully invoke self-defense, an accused must establish: "(1) unlawful aggression on the part of the victim;
(2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient
provocation on the part of the person resorting to self-defense."49 Defense of a relative under Article 11 (2) of
the Revised Penal Code requires the same first two (2) requisites as self-defense and, in lieu of the third "in case
the provocation was given by the person attacked, that the one making the defense had no part therein."50
The first requisite - unlawful aggression - is the condition sine qua non of self-defense and defense of a relative:
At the heart of the claim of self-defense is the presence of an unlawful aggression committed against appellant.
Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot
and will not be appreciated, even if the other elements are present. Unlawful aggression refers to an attack
amounting to actual or imminent threat to the life and limb of the person claiming self-defense.51
The second requisite - reasonable necessity of the means employed to prevent or repel the aggression - requires
a reasonable proportionality between the unlawful aggression and the defensive response: "[t]he means
employed by the person invoking self-defense contemplates a rational equivalence between the means of attack
and the defense."52 This is a matter that depends on the circumstances:
Reasonable necessity of the means employed does not imply material commensurability between the means of
attack and defense. What the law requires is rational equivalence, in the consideration of which will enter as
principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct,
more than the reason, that moves or impels the defense, and the proportionateness thereof does not depend
upon the harm done, but rests upon the imminent danger of such injury ... As WE stated in the case of People vs.
Lara, in emergencies of this kind, human nature does not act upon processes of formal reason but in obedience
to the instinct of self-preservation; and when it is apparent that a person has reasonably acted upon this instinct,
it is the duty of the courts to sanction the act and hold the act irresponsible in law for the
consequences.53(Citations omitted)
The third requisite - lack of sufficient provocation - requires the person mounting a defense to be reasonably
blameless. He or she must not have antagonized or incited the attacker into launching an assault. This also
requires a consideration of proportionality. As explained in People v. Boholst-Caballero,54 "[p]rovocation is
sufficient when it is proportionate to the aggression, that is, adequate enough to impel one to attack the person
claiming self-defense."55
II
We find petitioners' claims of self-defense and defense of their relative, Mercedes, to be sorely wanting.
Petitioners' entire defense rests on proof that it was Jesus who initiated an assault by barging into the premises
of petitioners' residences, hacking Victor's door, and threatening physical harm upon petitioners and their
companions. That is, that unlawful aggression originated from Jesus.
Contrary to what a successful averment of self-defense or defense of a relative requires, petitioners offered
nothing more than a self-serving, uncorroborated claim that Jesus appeared out of nowhere to go berserk in the
vicinity of their homes. They failed to present independent and credible proof to back up their assertions. The
Regional Trial Court noted that it was highly dubious that Jesus would go all the way to petitioners' residences to
initiate an attack for no apparent reason.56
The remainder of petitioners' recollection of events strains credulity. They claim that Jesus launched an assault
despite the presence of at least seven (7) antagonists: petitioners, Mercedes, and the four (4) other accused.
They further assert that Jesus persisted on his assault despite being outnumbered, and also despite their and
their co-accused's bodily efforts to restrain Jesus. His persistence was supposedly so likely to harm them that, to
neutralize him, they had no other recourse but to hit him on the head with stones for at least three (3) times,
and to hit him on the back with a bamboo rod, aside from dealing him with less severe blows.57
As the Regional Trial Court noted, however:
The Court takes judicial notice of (the) big difference in the physical built of the private complainant and accused
Victor Velasquez, Sonny Boy Velasquez, Felix Caballeda and Jojo del Mundo, private complainant is shorter in
height and of smaller built than all the accused.
The said accused could have had easily held the private complainant, who was heavily drunk as they claim, and
disarmed him without the need of hitting him.58
The injuries which Jesus were reported to have sustained speak volumes:
3 ems lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left Jurisprudence is replete with clarifications that a witness' recollection of crime need not be foolproof:
"Witnesses cannot be expected to recollect with exactitude every minute detail of an event. This is especially
Abrasion back left multi linear approximately 20 cm true when the witnesses testify as to facts which transpired in rapid succession, attended by flurry and
excitement."65 This is especially true of a victim's recollection of his or her own harrowing ordeal. One who has
undergone a horrifying and traumatic experience "cannot be expected to mechanically keep and then give an
Abrasion shoulder left, confluent 4x 10 cm
accurate account"66 of every minutiae.

Depressed skull fracture parietal area left.59

Even if it were to be granted that Jesus was the initial aggressor, the beating dealt to him by petitioners and their
co-accused was still glaringly in excess of what would have sufficed to neutralize him. It was far from a
reasonably necessary means to repel his supposed aggression. Petitioners thereby fail in satisfying the second
requisite of self-defense and of defense of a relative.
Certainly, Jesus' supposed inconsistencies on the intricacies of who struck him which specific blow can be
forgiven. The merit of Jesus' testimony does not depend on whether he has an extraordinary memory despite
being hit on the head multiple times. Rather, it is in his credible narration of his entire ordeal, and how
petitioners and their co-accused were its authors. On this, his testimony was unequivocal.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR. No. 31333 is AFFIRMED.

III
SO ORDERED.

In addition to their tale of self-defense, petitioners insist that the testimony of Maria Teresita is not worthy of
MARVIC M.V.F. LEONEN
trust because she parted ways with Ana while searching for Jesus.60 They characterize Maria Teresita as the
Associate Justice
prosecution's "lone eyewitness."61 They make it appear that its entire case hinges on her. Thus, they theorize
that with the shattering of her credibility comes the complete and utter ruin of the prosecution's
case.62 Petitioners claim that Maria Teresita is the prosecution's lone eyewitness at the same time that they
acknowledge Jesus' testimony, which they dismissed as laden with inconsistencies.63

These contentions no longer merit consideration.

Petitioners' averment of justifying circumstances was dispensed with the need for even passing upon their
assertions against Maria Teresita's and Jesus' testimonies.1âwphi1 Upon their mere invocation of self-defense
and defense of a relative, they relieved the prosecution of its burden of proving the acts constitutive of the
offense. They took upon themselves the burden of establishing their innocence, and cast their lot on their
capacity to prove their own affirmative allegations.1âwphi1 Unfortunately for them, they failed.

Even if we were to extend them a measure of consideration, their contentions fail to impress.

Petitioners' primordial characterization of Maria Teresita as the "lone eyewitness," upon whose testimony the
prosecution's case was to rise or fall, is plainly erroneous. Apart from her, Jesus testified about his own
experience of being mauled by petitioners and their co-accused. Maria Teresita's testimony was only in support
of what Jesus recounted.

Moreover, we fail to see how the mere fact of Maria Teresita's having parted ways with Ana while searching for
Jesus diminishes her credibility. No extraordinary explanation is necessary for this. Their having proceeded
separately may be accounted for simply by the wisdom of how independent searches enabled them to cover
more ground in less time.

Regarding Jesus' recollection of events, petitioners' contention centers on Jesus' supposedly flawed recollection
of who among the six (6) accused dealt him, which specific blow, and using which specific weapon. 64 These
contentions are too trivial to even warrant an independent, point by point audit by this Court.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 103801-02 October 19, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IRVING FLORES y DICHOSO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellants.
PUNO, J.:
Accused-appellant Irving Flores y Dichoso was charged in two (2) separate Informations with Murder and
violation of P.D. 1866 (Illegal Possession of Firearm) before the Regional Trial Court, Valenzuela, Metro Manila,
Branch 172.1
The Information for Murder reads:
That on or about the 6th day of July, 1991, in the Municipality of Valenzuela, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
without any justifiable cause, with treachery and evident premeditation and with deliberate
intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and shoot
with an unlicensed handgun one EDWIN ALBERTO y BAYLON, thereby inflicting upon the
latter serious physical injuries, which directly caused his death.
Contrary to Law. (Rollo, p. 3).
The Information for Illegal Possession of Firearm, one the other hand, reads:
That on or about the 6th day of July, 1991, in the Municipality of Valenzuela, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused
being a private person without any authority of law, did then and there willfully, unlawfully
and feloniously have in possession and control one (1) .38 cal. rev. mark(ed) Taurus Brasil,
with Serial No. 2140012 with two (2) spent shells of .38 cal. rev. and one (1) black holster of
.38 cal. rev., without any purpose and intent of surrendering the same to the proper
authority.
Contrary to Law. (Rollo, p.2).
As the two (2) cases arose out of the same incident, both were tried jointly.
During the trial, the prosecution established the following:
On July 6, 1991, at around 11:45 p.m., Edwin Alberto and Demetrio Mendoza, both residents of #3 Silverio
Domingo Apartment, Lawang-Bato, Valenzuela, Metro Manila, took out the garbage from their house. They
walked towards the dumpsite — a vacant lot near the Mariposa Bed Factory also located in Lawang-Bato.2 After
disposing of the garbage and while enroute home, accused-appellant Irving Flores, a security guard of the
Mariposa Bed Factory, emerged from the factory. Accused-appellant, apparently drunk,
was carrying a gun. Suddenly and for no apparent reason, accused-appellant fired at them. Sensing danger,
Alberto and Mendoza ran for their lives. Accused-appellant chased them. At a distance of about fifteen (15)
meters, accused-appellant again fired at them. Alberto, who was hit at the back, exclaimed: "Demet, I was hit."
Mendoza ran to Alberto's succor and immediately brought his wounded friend to the hospital. It was to late,
though, for Alberto was pronounced dead upon arrival.3 The cause of death was hemorrhage resulting from the
gunshot which lacerated his lungs.4
Mendoza was interviewed by the police. In his sworn statement,5 he narrated the shooting incident and
identified accused-appellant as the person responsible for the death of Alberto.6
Approximately two (2) hours after the incident, at about 1:35 a.m., after receiving a report about the shooting
incident, Patrolmen Federico Patag and Reynaldo Tapar proceeded to the scene of the crime. They received
information from the residents in the area that the person involved in the shooting
incident went inside the Mariposa Bed Factory compound. They went to the factory and inquired from security
guard Eman about the identity of the person who fired the gun. Eman pointed to accused-appellant. As they
were approaching accused-appellant, the latter, who was drunk, was also coming towards them. Accused-
appellant handed to Pat. Patag a .38 caliber revolver with serial number 2140012. The license covering said gun
was handed by security guard Eman to Pat. Patag. From the license, they discovered that the subject firearm was
regularly issued in the name of the security agency employing accused-appellant.7
For his defense, accused-appellant presented an entirely different version of the incident. He testified that as a
security guard of the Kossaks Investigation, Security and Detective Agency, he was designated as office-in-charge
of the four (4) security guards assigned at the Mariposa Bed Factory, namely: Danilo Eman, Rey Nargatan, Edwin
Goto and Rex dela Cruz.8
On said date and time, he conducted a roving inspection of the factory premises. He was accompanied by
security guards Danilo Eman and Rey Nargatan. Both he and Eman were armed with a .38 caliber revolver while
Nargatan was armed with a shotgun.
While conducting their inspection, Eman informed accused-appellant
that three (3) unidentified men were roaming in front of the factory gate. Accused-appellant went out to verify
the identity of these men. Upon inquiry, the three (3) men represented to him that they were relatives of the
factory owner. Noting that it was almost midnight, accused-appellant informed them that the owner was not
around and instructed them to return the next day. However, the three (3) still insisted on entering the factory.
Accused-appellant adamantly refused to let them in. One of the men cursed him: "Putang-ina mo, guwardiya ka
lang." In the meantime, the two (2) other men started scaling the factory fence. Accused-appellant then
instructed Eman to go to the guardhouse on top of the factory gate and assist him. Still standing outside the
gate, accused-appellant fired two (2) successive warning shots in the air. Frightened, the two (2) men
immediately climbed down the fence, then fled swiftly.
A few hours after the incident, when the police authorities arrived at the factory, accused-appellant alleged that
he voluntarily surrendered himself to them, including his service firearm.9
After trial, a decision was rendered by Judge Teresita Dizon-Capulong 10 acquitting accused-appellant from the
charge of illegal possession of firearm. The trial court found that the subject firearm was properly licensed and
that accused-appellant, as officer-in-charge of the security agency, had authority to possess the same at the time
of the shooting incident. However, accused-appellant was found guilty beyond reasonable doubt of murder for
the death of Edwin Alberto. He was sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs
of Edwin Alberto in the sum of fifty thousand pesos (P50,000.00) and to pay the costs.
Hence this appeal where accused-appellant ascribed the following errors:
I We agree. The mere fact that the victim was shot at the back while attempting to run away from his assailant
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF MURDER.
II
ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY, HE IS GUILTY ONLY OF THE CRIME OF
HOMICIDE WITH THE PRIVILEGED (sic) MITIGATING CIRCUMSTANCE OF INCOMPLETE
JUSTIFICATION UNDER ARTICLE 13, PARAGRAPH 1 OF THE REVISED PENAL CODE AND
GENERIC MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.
In his first assigned error, accused-appellant faults the trial court for giving credence to the testimony of
prosecution eyewitness Mendoza. He points that the statement was taken almost three (3) hours after the
incident, at which time, Mendoza allegedly has had more than enough time to compose himself and narrate an
entirely different story. Accused-appellant also stresses that the prosecution failed to show that he has any
motive or reason to shoot at Mendoza and Alberto.
We find no merit in these contentions.
It is incorrect to argue that accused-appellant was convicted solely on the basis of the sworn statement of
prosecution witness Mendoza. More accurately, the trial court examined the testimony of Mendoza in open
court where he unfailingly recounted in detail the confluence of events leading to the death of the victim. The
records will hear that his testimony is substantially congruent with his sworn statement and no material
inconsistency emanated therefrom. Truth to tell, his testimony withstood rigid cross-examination.
The fact that accused-appellant had no motive to kill the victim is of no moment. It is a settled rule in criminal
law that proof of motive is crucial only where the identity of an accused is not sufficiently established.11 In the
case at bench, the identity of accused-appellant as the author of the crime has been positively and categorically
established by the testimony of prosecution eyewitness Mendoza who was himself a survivor of accused-
appellant's belligerent assault.
Accused-appellant would cast doubt on Mendoza's identification of him as the assailant. He claims that at the
time of the shooting incident, there was no light at the scene of the crime which could have aided Mendoza in
identifying him as the culprit.
A perusal of the records reveals otherwise. As per the testimony of Mendoza, the crime scene was adequately
illuminated by a Meralco lamp post near the gate of the factory where accused-appellant started his
aggression. 12Mendoza, who was not shown to be biased, even described accused-appellant as wearing a light
blue uniform at the time of the attack and that the latter retreated to the factory immediately after shooting the
victim.
Coming now to the second assigned error, accused-appellant proposes that, assuming arguendo that he should
be held liable for the death of Alberto, he should have been found guilty of the lesser crime of homicide. He
maintains that the killing of the victim is not qualified by treachery.
would not per se qualify the crime to murder. In the case at bench, the evidence established that accused-
appellant, apparently drunk, emerged from the factory and fired upon the victim and his companion who were
just innocently passing by. Sensing an imminent danger to their lives, the two started to run. However, the next
gunshot hit the victim at the back and caused his death. Clearly then, with the first gunshot, the victim has been
placed on guard and has, in fact, attempted to flee. There could thus be no treachery since, prior to the attack,
the victim has been forewarned of the danger to his life and has even attempted, albeit unsuccessfully, to escape.
Moreover, there was absolutely no evidence to show that accused-appellant consciously and deliberately
employed a specific form of attack which would specially and directly ensure its commission without impunity. 13
We come now to the appreciation of the mitigating circumstances. Accused-appellant claims that he is entitled
to the mitigating circumstances of incomplete defense of the property or rights of a stranger. He maintains that
in shooting the victim, he acted in the performance of his duty as a security guard since he was trying to prevent
the victim and his companions from scaling the wall of the factory. He further claims that he is entitled to the
mitigating circumstances of voluntary surrender for when the police authorities went to the factory looking for
him, he allegedly approached them and voluntarily surrendered himself.
We find that none of the mitigating circumstances alleged by accused-appellant attended the commission of the
crime.
The justifying circumstance of defense of property or rights of a stranger requires the concurrence of the
following requisites: (1) unlawful aggression,
(2) reasonable necessity of the means employed to prevent or repel it, and
(3) the person defending is not induced by revenge, resentment or other evil motive. 14 Absent either or both of
the last two (2) requisites, the mitigating circumstance of incomplete defense of stranger may be appreciated.
However, in either case, unlawful aggression is always an essential element. It has been held that without
unlawful aggression, there could never be a defense, complete or incomplete. 15
In this case, the evidence adduced by the prosecution established beyond reasonable doubt that it was accused- Padilla, J., is on leave.
appellant who was the aggressor. Indeed, appreciation of the mitigating circumstance of incomplete defense of
property or rights of a stranger would require that we accept as true the defense's version of the incident.
Accused-appellant failed to convince the trial court of his innocence. He remains unsuccessful before this Court.

Accused-appellant's uncorroborated and self-serving testimony runs contrary to ordinary human

experience. First, we find it inconceivable that the victim and his two (2) other alleged companions would claim
to be relatives of the factory owner and insist on entering the factory premises at an unholy hour of 11:45
p.m. Second, it is unthinkable that, having been informed of the absence of the owner, the three (3) would still
insist on entering the premises. Finally, having been refused entry, accused-appellant would have us believe that
the three (3) men would desperately insist on entering the premises even to the extent of climbing the fence.
What is more, all these were allegedly done in clear view and in the presence of two (2) armed security guards.
On the whole, his testimony simply does not inspire credence.

A contrario, we are satisfied that the prosecution, through its eyewitness, sufficiently proved the culpability of
accused-appellant. The evidence shows that accused-appellant, then under the influence of liquor, emerged
from the factory and recklessly fired at the first people he saw who, unfortunately happened to be the victim
and his companion Mendoza. The fact that it does not appear on the record that bad blood existed between the
parties prior to the incident which might have impelled him to shoot the victim does not affect the credibility of
the prosecution evidence. Indeed, we have taken judicial notice of the fact that inebriated persons are inclined
to be pugnacious, irrational and quarrelsome for no sensible reason.16 From the unbiased and credible testimony
of prosecution eyewitness Mendoza, we sustain the trial court's finding that the unlawful aggression originated
from accused-appellant himself.

Neither can we accept accused-appellant's plea of voluntary surrender. He did not surrender to the police. In
fact, the evidence adduced shows that it was the police authorities who came to the factory looking for him. It
was there that accused-appellant was pointed to them. Seeing that the police were
already approaching him, accused-appellant did not offer any resistance and peacefully went with them. With
the police closing in, accused-appellant actually had no choice but to go with them. To be sure, no surrender was
made by accused-appellant.

In sum, we find that the guilt of accused-appellant for the death of the victim has been established beyond
reasonable doubt. Homicide carries with it the penalty of reclusion temporal.17 There being neither mitigating or
aggravating circumstance attending the commission of the crime, the impossable penalty is the medium period
of reclusion temporal.18 Applying the Indeterminate Sentence Law, accused-appellant should be meted the
indeterminate sentence of ten (10) years and one (1) day of prision mayor maximum as minimum penalty to
seventeen (17) years and four (4) months of reclusion temporal medium as maximum penalty.

IN VIEW THEREOF, accused-appellant IRVING FLORES y DICHOSO is found guilty beyond reasonable doubt of
homicide. He is sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision
mayor maximum as minimum penalty to seventeen (17) years and four (4) months of reclusion temporal medium
as maximum penalty, and indemnify the heirs of Edwin Alberto in the amount of FIFTY THOUSAND PESOS
(P50,000.00). No Costs.

SO ORDERED.

Narvasa, C.J., Regalado and Mendoza, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 169084 January 18, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MELANIO DEL CASTILLO y VARGAS, HERMOGENES DEL CASTILLO y VARGAS, ARNOLD AVENGOZA y DOGOS,
FELIX AVENGOZA y DOGOS, RICO DEL CASTILLO y RAMOS, and JOVEN DEL CASTILLO yABESOLA, Accused-
Appellants.
DECISION
BERSAMIN, J.:
This case illustrates yet again why denial and alibi are not the best defenses when there is positive identification
of the accused for their complicity in the commission of a crime.
Antecedents
All the accused are related to one another either by consanguinity or by affinity. Melanio del Castillo and
Hermogenes del Castillo are brothers. Rico del Castillo and Joven del Castillo are, respectively, Melanio’s son and
nephew. Felix Avengoza is the son-in-law of Melanio and the brother of Arnold Avengoza. Both Felix and Arnold
lived in the house of Melanio.
On March 28, 2000, the City Prosecutor’s Office of Batangas City charged all the accused in the Regional Trial
Court (RTC), Branch 4, Batangas City with three counts of murder, alleging as follows:
Criminal Case No. 10839
That on or about March 21, 2000, at around 9:00 o’clock in the evening at Sitio Bulihan, Brgy. Balete, Batangas
City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating with one another, while armed with bolos, kitchen knife and pointed instrument, all deadly
weapons, with intent to kill and with the qualifying circumstances of treachery and abuse of superior strength,
did then and there willfully, unlawfully and feloniously attack, assault, hack and stab with said deadly weapons
one Sabino Guinhawa y Delgado @ "Benny," thereby hitting him on the different parts of his body, which directly
caused the victim’s death.1
Criminal Case No. 10840
That on or about March 21, 2000, at around 9:00 o’clock in the evening at Sitio Bulihan, Brgy. Balete, Batangas
City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating with one another, while armed with bolos, kitchen knife and pointed instrument, all deadly
weapons, with intent to kill and with the qualifying circumstances of treachery and abuse of superior strength,
did then and there willfully, unlawfully and feloniously attack, assault, hack and stab with said deadly weapons
one Graciano Delgado y Aguda @ "Nonoy," thereby hitting him on the different parts of his body, which directly
caused the victim’s death.2
Criminal Case No. 10841
That on or about March 21, 2000, at around 9:00 o’clock in the evening at Sitio Bulihan, Brgy. Balete, Batangas
City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating with one another, while armed with bolos, kitchen knife and pointed instrument, all deadly
weapons, with intent to kill and with the qualifying circumstances of treachery and abuse of superior strength,
did then and there willfully, unlawfully and feloniously attack, assault, hack and stab with said deadly weapons
one Victor Noriega y Blanco, thereby hitting him on the different parts of his body, which directly caused the
victim’s death.(emphases and italics supplied).3
The cases were consolidated for arraignment and trial. On April 7, 2000, the accused pleaded not guilty to the
informations.4
Version of the Prosecution
The witnesses for the State were Froilan R. Perfinian, PO3 Pablo Aguda Jr., Dr. Luz M. Tiuseco, Rosalia Delgado,
Domingo Guinhawa, Abella Perez Noriega, SPO3 Felizardo Panaligan, Sr. Insp. Marcos Barte and SPO3 Danilo
Magtibay.
The eyewitness version of Perfinian follows. On March 20, 2000, at about 9:00 pm, he had just left the house of
one Lemuel located in Sitio Bulihan, Barangay Balete, Batangas City (Bulihan) to walk to his own home located
also in Bulihan when he heard someone pleading: Huwag po, huwag po! He followed the direction of the voice,
and saw the assault by all the accused against Sabino D. Guinhawa (Sabino), Graciano A. Delgado (Graciano), and
Victor B. Noriega (Victor). He recognized each of the accused because he saw them from only six meters away
and the moon was very bright. Besides, he was a godfather of Hermogenes’ son, and the other accused usually
passed by his house.
Perfinian recalled that the accused surrounded their victims during the assault; that Arnold stabbed Graciano on
the stomach with a bolo, causing Graciano to fall to the ground; that Rico hacked Graciano with a bolo; that
when Victor tried to escape by running away, Hermogenes and Felix pursued and caught up with him; that Felix
hacked Victor; and that when Sabino ran away, Melanio and Joven pursued him.
Perfinian rushed home as soon as all the accused had left. He narrated to his wife everything he had just
witnessed. On the following day, he learned that the police authorities found the dead bodies of Sabino,
Graciano and Victor. Afraid of being implicated and fearing for his own safety, he left for his father’s house in
Marinduque. He did not return to Bulihan until after he learned from the TV newscast that all the accused had
been arrested. Once returning home, he relayed to the victims’ families everything he knew about the killings.
Also, he gave a statement to the Batangas City Police.5
PO3 Aguda was on duty as the desk officer of the Batangas City Police Station in the morning of March 22, 2000
when he received the report about the dead bodies found in Bulihan. He and other police officers went to
Bulihan, and found the dead bodies of Sabino, Graciano, and Victor sprawled on the road about 20 meters from
each other. The bodies were all bloodied and full of hack wounds. During his investigation, he came upon one
Rene Imbig (Rene) who mentioned seeing the six accused wielding bolos and running on the night of March 21,
2000. From the site of the crime, he and his fellow officers went to the houses of Melanio and Rico, which were
about 20 meters from where the bodies were found. The houses were abandoned, but he recovered a blood-
stained knife with a curved end in Melanio’s house. Returning to the station, he saw Hermogenes there, who
informed him that the other suspects had fled to Sitio Tangisan, Barangay Mayamot, Antipolo, Rizal (Sitio
Tangisan), where Melanio’s mother-in-law resided. Accompanied by Rene and other police officers, he travelled
to Sitio Tangisan that afternoon. Upon arriving in Sitio Tangisan, Rene pointed to Melanio who was just stepping
out of his mother-in-law’s house. Melanio ran upon seeing their approach, but they caught up with him and
subdued him. They recovered a bolo from Melanio. They found and arrested the other suspects in the house of
Melanio’s mother-in-law, and brought all the arrested suspects back to Batangas City for investigation. There,
the suspects admitted disposing some of their clothes by throwing them into the Pasig River, and said that their
other clothes were in the house of Melanio. They mentioned that the bolo used by Hermogenes was still in his
house.
On the morning of March 23, 2000, PO3 Aguda and his fellow officers recovered two shorts, a shirt, and a knife -
all blood-stained from Melanio’s house in Bulihan. Going next to the house of Hermogenes, Winifreda del
Castillo, the latter’s wife, turned over the bolo of Hermogenes. They learned that prior to the killings, Melanio
had been fuming at being cheated in a cockfight, and had uttered threats to kill at least three persons in
Bulihan.6
Sr. Insp. Barte, SPO3 Panaligan and SPO3 Magtibay corroborated PO3 Aguda’s recollections.7
Dr. Luz M. Tiuseco (Dr. Tiuseco), a Medical Officer of Batangas City Health Office, conducted the post-mortem
examinations on the remains of Sabino, Graciano, and Victor on March 22, 2001. She found that Sabino
sustained 11 hack wounds and 12 stab wounds; that Graciano suffered four stab wounds and a hack wound; and
that Victor had three hack wounds. She certified that the victims had died from hypovolemic shock secondary to
multiple stab and hack wounds.8
Domingo Guinhawa, the elder brother of Sabino, declared that his family spent ₱50,000.00 for Sabino’s funeral
and burial expenses.9 Rosalia Delgado, a sister of Graciano, attested that the expenses incurred for Graciano’s
burial amounted to ₱51,510.00.10 Abella Perez Noriega, the wife of Victor, claimed that her family spent
₱53,395.00 for Victor’s wake and interment.11
Version of the Accused
The Defense offered the testimonies of the accused and Winifreda. The accused admitted being in Bulihan at the
time of the incident, but denied liability. Arnold and Joven invoked self-defense and defense of strangers, while
Melanio, Hermogenes, Rico and Felix interposed denial. Winifreda corroborated the testimonies of Arnold and
Joven.
The evidence of the accused was rehashed in the appellee’s brief submitted by the Public Attorney’s Office, as
follows:
Arnold Avengoza testified that on March 21, 2001, he had a drinking spree with Rico del Castillo in their house.
After about an hour, he was requested by Winifreda del Castillo, wife of Hermogenes del Castillo, to accompany
them to their house. Together with Joven del Castillo, they brought Winifreda and her son to their house. Before
they were able to reach Winifreda’s house, three (3) men appeared. One of them held Winifreda and when he
tried to help her, the other persons attempted to draw something from their waists prompting him to hacked
one of them. He told the man to stop, but the latter refused. When the other man got mad, he hacked him
twice. Then, they brought Winnie and her son to the house of Melanio del Castillo. He did not inform Melanio
del Castillo about what transpired, but told him to take his family away, because he saw dead persons near his
place. He threw his bolo into the Pasig River.
Joven del Castillo, corroborated Rico’s testimony and admitted that he was the one who stabbed the other man,
who attempted to draw something from his waist while Arnold hacked the other man. He was no longer aware
how many times he stabbed the said man. Victor Noriega was one of the three (3) men who blocked their way.
They left Sitio Bulihan at about 11:00 o’clock in the evening, together with Felix Avengoza, Arnold Avengoza, Rico
del Castillo, Melanio del Castillo and his family. They went to Antipolo, Rizal, where they were arrested by the
police authorities.
Hermogenes del Castillo slept the whole night of March 21, 2000 and came to know that the three (3) persons
were killed during the night near the house of his brother Melanio only from his wife Winifreda. Fearing
retaliation from the relatives of the persons who were killed, because the bodies were found near his brother’s
house, he went to the house of Barangay Captain Aloria, who in turn told him to go to the police station. He
came to know that he was being implicated in the killing when he was incarcerated.
Rico del Castillo testified that on the night of March 21, 2001 at about 7:00 o’clock in the evening, he fetched
Winifreda del Castillo to treat the sprain of his daughter. At about 9:00 o’clock in the evening, since his daughter
was still crying, he requested Joven and Arnold to accompany Winifreda and her son in going home. Arnold and
Joven returned at around 10:00’clock in the evening. He was told that they saw dead people and was asked to
leave the place together with his family.
Felix Avengoza said that on the night of March 21, 2001, he was informed by Joven and Arnold that they saw two
(2) dead persons near their house. For fear of becoming a suspect, he was told to leave his house together with
his family.
Melanio del Castillo affirmed the testimony of Felix and added that he was at first hesitant to leave his house
because of his personal belongings and animals, but due to insistence of Arnold and Joven, he also left with them
for Manila.
Winifreda del Castillo confirmed that she was fetched by Rico del Castillo to treat his daughter. When Rico was
unable to bring her back home, Joven and Arnold accompanied her. While they were on their way, three (3)
persons suddenly blocked them. One of them held her hand and tried to drag her away. When Arnold tried to
pacify them, they got angry and attempted to pull something from their waists so Arnold hacked him. 12
Decision of the RTC
On October 23, 2001, the RTC convicted the accused of murder, but appreciated voluntary surrender as a
mitigating circumstance in favor of Hermogenes, viz:
In the light of all the foregoing considerations, accused Arnold Avengoza, Felix Avengoza, alias Alex, Rico del
Castillo, Joven del Castillo, Hermogenes del Castillo, alias Menes and Melanio del Castillo are all hereby found
Guilty beyond reasonable doubt of the crime of Murder as defined and punished under Article 248 of the
Revised Penal Code as amended by Republic Act No. 7659 charged in these three cases namely: Criminal Case
No. 10839, Criminal Case No. 10840 and Criminal Case No. 10841.
Wherefore, accused Arnold Avengoza, Felix Avengoza, Rico del Castillo, Joven del Castillo and Melanio del
Castillo are sentenced in each of the above mentioned criminal cases to suffer the imprisonment of reclusion
perpetuatogether with all the accessory penalties inherent therewith and to pay the costs. With respect to
accused Hermogenes del Castillo, considering the presence of mitigating circumstance of voluntary surrender in
his favor and further applying the provisions of the Indeterminate Sentence Law, in each of the aforesaid
criminal cases, he is hereby sentenced to imprisonment of Fourteen (14) Years, Eight (8) Months and One (1) Day
as minimum to Twenty (20) Years of reclusion temporal as maximum together with its inherent accessory
penalties.
As to the civil aspects of these cases, in Criminal Case No. 10839, all the herein accused are directed to jointly
and severally indemnify the heirs of Sabino Guinhawa the amount of ₱58,510,00 as actual funeral expenses and
the sum of ₱75,000.00 as moral damages. In Criminal Case No. 10840, all the herein accused are directed to
indemnify jointly and severally the heirs of Graciano Delgado with the sum of ₱51,510.00 as actual funeral
expenses and ₱75,000.00 as moral damages. And in Criminal Case No. 10841, all the above-named accused are
further directed to indemnify the heirs of Victor Noriega with the sum of ₱53,395.00 as actual funeral expenses
and the amount of ₱75,000.00 as moral damages.
Finally, let accused Hermogenes del Castillo be credited with his preventive imprisonment if he is entitled to any.
SO ORDERED.13
Decision of the CA
The accused appealed to the Court of Appeals (CA) upon the following assigned errors, to wit:
I.
THE COURT A QUO GRAVELY ERRED IN CONVICTING ALL THE ACCUSED-APPELLANTS BEYOND
REASONABLE DOUBT OF THE CRIME OF MURDER DESPITE THE FACT THAT TWO OF THE ACCUSED-
APPELLANTS HAVE ALREADY ADMITTED KILLING THE THREE VICTIMS IN DEFENSE OF WINIFREDA DEL
CASTILLO.
II.
THE COURT A QUO GRAVELY ERRED IN NOT APPRECIATING THE JUSTIFYING CIRCUMSTANCES OF SELF-
DEFENSE AND DEFENSE OF STRANGERS IN FAVOR OF ACCUSED-APPELLANTS ARNOLD AVENGOZA AND
JOVEN DEL CASTILLO.
III.
THE COURT A QUO GRAVELY ERRED IN AWARDING ACTUAL AND MORAL DAMAGES DESPITE THE LACK
OF EVIDENCE TO SUPPORT THE SAME.
On April 28, 2005, the CA affirmed the convictions, correcting only the awards of damages and the penalty
imposed on Hermogenes,14 to wit:
WHEREFORE, the decision of the trial court is AFFIRMED with MODIFICATIONS that appellant Hermogenes Del
Castillo is sentenced to suffer the penalty of reclusion perpetua and all the accused are ordered to pay jointly and
severally the sum of ₱50,000.00 as civil indemnity, the sum of ₱50,000.00 as moral damages to the heirs of each
victim; the sum of ₱15,000.00 and ₱8,000.00 as actual damages to the heirs of Sabino Guinhawa and Graciano
Delgado, respectively, and ₱10,000.00 as nominal damages to the heirs of Victor Noriega.
SO ORDERED.
Issues
Hence, the accused have come to us in a final appeal, submitting that because Arnold and Joven had already
admitted killing the victims, the rest of them should be exculpated; that Arnold and Joven should be absolved of
criminal liability because they acted in self-defense and defense of strangers; and that conspiracy among them
was not proven.15
Ruling
The conviction of appellants is affirmed, but the damages awarded and their corresponding amounts are
modified in conformity with prevailing jurisprudence.
I.
Factual findings of the RTC
and CA are accorded respect
Both the RTC and the CA considered Perfinian’s eyewitness testimony credible.
We concur with both lower courts.
We reiterate that the trial judge’s evaluation of the credibility of a witness and of his testimony is accorded the
highest respect because of the trial judge’s unique opportunity to directly observe the demeanor of the witness
that enables him to determine whether the witness is telling the truth or not.16 Such evaluation, when affirmed
by the CA, is binding on the Court unless the appellant reveals facts or circumstances of weight that were
overlooked, misapprehended, or misinterpreted that, if considered, would materially affect the disposition of
the case.17
The accused did not present any fact or circumstance of weight that the RTC or the CA overlooked,
misapprehended, or misinterpreted that, if considered, would alter the result herein. Accordingly, we have no
reason to disregard their having accorded total credence to Perfinian’s eyewitness account of the killings. In
contrast, we have the bare denials of Melanio, Hermogenes, Felix, and Rico, but such denials were weak for
being self-serving and unnatural. Their own actuations and conduct following the attack even confirmed their
guilt, for had Melanio, Felix, and Rico been innocent, it was puzzling that they had to suddenly abandon their
homes to go to Antipolo City in Rizal. Their explanation for the hasty departure - that Arnold and Joven warned
them to leave because dead bodies had been found near Melanio’s house, and they might be implicated - was
unnatural and contrary to human nature. The normal reaction of innocent persons was not to run away, or
instead to report to the police whatever they knew about the dead bodies. In any case, they did not need to be
apprehensive about being implicated if they had no participation in the crimes.
The lower courts correctly evaluated the evidence. To us, Perfinian’s identification of all the accused as the
perpetrators was positive and reliable for being based on his recognition of each of them during the incident. His
being familiar with each of them eliminated any possibility of mistaken identification. He spotted them from a
distance of only six meters away under a good condition of visibility (i.e., the moon then being "very bright").
Consequently, their denials and alibi were properly rejected.
Likewise, Perfinian detailed the distinct acts done by each of the accused during their assault. Such recollection
of the fatal events was categorical and strong, and there was no better indicator of the reliability and accuracy of
his recollection than its congruence with the physical evidence adduced at the trial. For one, the results of the
post-mortem examinations showing that the victims had sustained multiple stab and hack wounds (i.e., Sabino
sustained 11 hack wounds and 12 stab wounds; Graciano suffered four stab wounds and a hack wound; and
Victor had three hack wounds) confirmed his testimonial declarations about the victims having been repeatedly
stabbed and hacked.18 Also, the blood-stained bolos and blood-stained clothing recovered from the possession of
the accused confirmed his declarations that the accused had used bolos in inflicting deadly blows on their
victims.
It is notable, on the other hand, that the Defense did not challenge the sincerity of Perfinian’s eyewitness
identification. The accused did not show if Perfinian had harbored any ill-feeling towards any or all of them that
he was moved to testify falsely against them. Any such ill-feeling was even improbable in light of the revelation
that he and Hermogenes had spiritual bonds as compadres. Without such showing by the Defense, therefore,
Perfinian was presumed not to have been improperly actuated, entitling his incriminating testimony to full faith
and credence.19
II.
Arnold and Joven did not act
in self-defense and in defense of strangers
In order for self-defense to be appreciated, the accused must prove by clear and convincing evidence the
following elements: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means
employed to prevent or repel it; and (c) lack of sufficient provocation on the part of the person defending
himself.20 On the other hand, the requisites of defense of strangers are, namely: (a) unlawful aggression by the
victim; (b) reasonable necessity of the means to prevent or repel it; and (c) the person defending be not induced
by revenge, resentment, or other evil motive.21
In self-defense and defense of strangers, unlawful aggression is a primordial element, a condition sine qua non. If
no unlawful aggression attributed to the victim is established, self-defense and defense of strangers are
unavailing, because there would be nothing to repel.22 The character of the element of unlawful aggression has
been aptly described in People v. Nugas,23 as follows:
Unlawful aggression on the part of the victim is the primordial element of the justifying circumstance of self-
defense. Without unlawful aggression, there can be no justified killing in defense of oneself. The test for the
presence of unlawful aggression under the circumstances is whether the aggression from the victim put in real
peril the life or personal safety of the person defending himself; the peril must not be an imagined or imaginary
threat. Accordingly, the accused must establish the concurrence of three elements of unlawful aggression,
namely: (a) there must be a physical or material attack or assault; (b) the attack or assault must be actual, or, at
least, imminent; and (c) the attack or assault must be unlawful.
Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression means an attack with physical force or with a weapon, an
offensive act that positively determines the intent of the aggressor to cause the injury. Imminent unlawful
aggression means an attack that is impending or at the point of happening; it must not consist in a mere
threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a knife and making a motion as if to attack). Imminent
unlawful aggression must not be a mere threatening attitude of the victim, such as pressing his right hand to his
hip where a revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot.
By invoking self-defense and defense of strangers, Arnold and Joven in effect admitted their parts in killing the
victims. The rule consistently adhered to in this jurisdiction is that when the accused’s defense is self-defense he
thereby admits being the author of the death of the victim, that it becomes incumbent upon him to prove the
justifying circumstance to the satisfaction of the court.24 The rationale for the shifting of the burden of evidence
is that the accused, by his admission, is to be held criminally liable unless he satisfactorily establishes the fact of
self-defense. But the burden to prove guilt beyond reasonable doubt is not thereby lifted from the shoulders of
the State, which carries it until the end of the proceedings. In other words, only the onus probandi shifts to the
accused, for self-defense is an affirmative allegation that must be established with certainty by sufficient and
satisfactory proof.25He must now discharge the burden by relying on the strength of his own evidence, not on
the weakness of that of the Prosecution, considering that the Prosecution’s evidence, even if weak, cannot be
disbelieved in view of his admission of the killing.26
Arnold and Joven did not discharge their burden.
Arnold and Joven did not adequately prove unlawful aggression; hence, neither self-defense nor defense of
stranger was a viable defense for them. We note that in addition to the eyewitness account of Perfinian directly
incriminating them, their own actuations immediately after the incident confirmed their guilt beyond reasonable
doubt. As the CA cogently noted,27 their flight from the neighborhood where the crimes were committed, their
concealing of the weapons used in the commission of the crimes, their non-reporting of the crimes to the police,
and their failure to surrender themselves to the police authorities fully warranted the RTC’s rejection of their
claim of self-defense and defense of stranger.
Winifreda’s testimonial claim that the victims were the aggressors deserves no consideration. Her story was that
one of the victims had tried to attack her with a balisong.28 Yet, her story would not stand scrutiny because of
the fact that no such weapon had been recovered from the crime scene; and because of the fact that none of the
accused had substantiated her thereon. Neither Arnold nor Joven attested in court seeing any of the victims
holding any weapon.29
Nonetheless, even if we were to believe Arnold and Joven’s version of the incident, the element of unlawful
aggression by the victims would still be lacking. The allegation that one of the victims had held Winifreda’s hand
did not indicate that the act had gravely endangered Winifreda’s life. Similarly, the victims’ supposed motion to
draw something from their waists did not put Arnold and Joven’s lives in any actual or imminent danger. What
the records inform us is that Arnold and Joven did not actually see if the victims had any weapons to draw from
their waists. That no weapons belonging to the victims were recovered from the crime scene confirmed their
being unarmed. Lastly, had they been only defending themselves, Arnold and Joven did not tell the trial court
why they had repeatedly hacked their victims with their bolos; or why they did not themselves even sustain any
physical injury. Thus, the CA and the RTC rightly rejected their plea of self-defense and defense of stranger, for
the nature and the number of wounds sustained by the victims were important indicia to disprove self-defense.30
III.
The State duly established
conspiracy and abuse of superior strength
The CA upheld the RTC’s finding that conspiracy and abuse of superior strength were duly established.
We affirm the CA.
The accused, armed with bolos, surrounded and attacked the victims, and pursued whoever of the latter
attempted to escape from their assault. Thereafter, the accused, except Hermogenes, fled their homes and
together hastily proceeded to Antipolo, Rizal. Their individual and collective acts prior to, during and following
the attack on the victims reflected a common objective of killing the latter. Thereby, all the accused, without
exception, were co-conspirators.
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it.31 Conspiracy is either express or implied. Thus, the State does not always have to prove the
actual agreement to commit the crime in order to establish conspiracy, for it is enough to show that the accused
acted in concert to achieve a common purpose. Conspiracy may be deduced from the mode and manner of the
commission of the offense, or from the acts of the accused before, during and after the commission of the crime
indubitably pointing to a joint purpose, a concert of action and a community of interest.32 Where the acts of the
accused collectively and individually demonstrate the existence of a common design towards the
accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as
principals.33 Once a conspiracy is established, each co-conspirator is as criminally liable as the others, for the act
of one is the act of all. A co-conspirator does not have to participate in every detail of the execution; neither
does he have to know the exact part performed by the co-conspirator in the execution of the criminal act.34
In view of the foregoing, the Court rejects the pleas for exculpation of the other accused grounded on their
respective alibis considering that Arnold and Joven’s admission of sole responsibility for the killings did not
eliminate their liability as co-conspirators.
Abuse of superior strength is an aggravating circumstance that qualifies the killing of a person to murder.35 It is
present if the accused purposely uses excessive force out of proportion to the means of defense available to the
person attacked, or if there is notorious inequality of forces between the victim and aggressor, and the latter
takes advantage of superior strength. Superiority in strength may refer to the number of aggressors and
weapons used.36
A gross disparity of forces existed between the accused and the victims. Not only did the six accused outnumber
the three victims but the former were armed with bolos while the latter were unarmed. The accused clearly used
their superiority in number and arms to ensure the killing of the victims. Abuse of superior strength is attendant
if the accused took advantage of their superiority in number and their being armed with bolos.37 Accordingly, the
crimes committed were three counts of murder.
The CA concluded that the mitigating circumstance of voluntary surrender should not be appreciated in favor of
Hermogenes.
In order that voluntary surrender is appreciated as a mitigating circumstance, the following requisites must
concur: (a) the accused has not been actually arrested; (b) the accused surrenders himself to a person in
authority or the latter’s agent; and (c) surrender is voluntary.38 The third requisite requires the surrender to be
spontaneous, indicating the intent of the accused to unconditionally submit himself to the authorities, either
because he acknowledges his guilt or he wishes to save them the trouble and expenses necessary for his search
and capture.39
Although Hermogenes went to Barangay Chairman Aloria of Bulihan after the killings, he did so to seek
protection against the retaliation of the victims’ relatives, not to admit his participation in the killing of the
victims.40 Even then, Hermogenes denied any involvement in the killings when the police went to take him from
Chairman Aloria’s house.41 As such, Hermogenes did not unconditionally submit himself to the authorities in
order to acknowledge his participation in the killings or in order to save the authorities the trouble and expense
for his arrest.42
Nonetheless, any determination of whether or not Hermogenes was entitled to the mitigating circumstance of
voluntary surrender was vain in light of the penalty for murder being reclusion perpetua to death under Article
248 of the Revised Penal Code, as amended by Republic Act No. 7659. Due to both such penalties being
indivisible, the attendance of mitigating or aggravating circumstances would not affect the penalties except to
aid the trial court in pegging the penalty to reclusion perpetua if the only modifying circumstance was mitigating,
or the mitigating circumstances outnumbered the aggravating circumstances; or to prescribe the death penalty
(prior to its prohibition under Republic Act No. 934643 ) should there be at least one aggravating circumstance
and there was no mitigating circumstance, or the aggravating circumstances outnumbered the mitigating
circumstances. This effect would conform to Article 63, (2), of the Revised Penal Code, to wit:
Article 63. Rules for the application of indivisible penalties. — In all cases in which the law prescribes a single
indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that
may have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules
shall be observed in the application thereof:
 xxx LUCAS P. BERSAMIN
Associate Justice
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser
penalty shall be applied.

xxx

IV.

Civil liability

The awards of civil indemnity and moral damages are also proper, but their corresponding amounts should be
increased to ₱75,000.00 in line with prevailing jurisprudence.44 The actual damages of ₱15,000.00 and ₱8,000.00
granted to the heirs of Sabino and Graciano, respectively, were also warranted due to their being proven by
receipts.45 However, the Court has held that when actual damages proven by receipts amount to less than
₱25,000.00, as in the case of Sabino and Graciano, the award of temperate damages amounting to ₱25,000.00 is
justified in lieu of actual damages for a lesser amount.46 This is based on the sound reasoning that it would be
anomalous and unfair that the heirs of the victim who tried and succeeded in proving actual damages of less
than ₱25,000.00 only would be put in a worse situation than others who might have presented no receipts at all
but would be entitled to ₱25,000.00 temperate damages.47 Hence, instead of only ₱15,000.00 and ₱8,000.00, the
amount of ₱25,000.00 as temperate damages should be awarded each to the heirs of Sabino and
Graciano.1awphil

The heirs of Victor did not present receipts proving the expenses they incurred by virtue of Victor’s death.
Nonetheless, it was naturally expected that the heirs had spent for the wake and burial of Victor. Article 2224 of
the Civil Code provides that temperate damages may be recovered when some pecuniary loss has been suffered
but its amount cannot be proved with certainty. Hence, in lieu of nominal damages of ₱10,000.00 awarded by
the CA, temperate damages of ₱25,000.00 are awarded to the heirs of Victor.

Exemplary damages of ₱30,000.00 should be further awarded to the heirs of the victims because of the
attendant circumstance of abuse of superior strength. Under Article 2230 of the Civil Code, exemplary damages
may be granted when the crime was committed with one or more aggravating circumstance. It was immaterial
that such aggravating circumstance was necessary to qualify the killing of each victim as murder.48

WHEREFORE, the Court AFFIRMS the decision promulgated on April 28, 2005, with the
following MODIFICATIONS, to wit: (a) the civil indemnity and moral damages are each increased to ₱75,000.00;
(b) temperate damages of ₱25,000.00 is granted, respectively, to the heirs of Sabino and Graciano in lieu of
actual damages; (c) instead of nominal damages, temperate damages of ₱25,000.00 is awarded to the heirs of
Victor; and (d) ₱30,000.00 as exemplary damages is given, respectively, to the heirs of Sabino, Graciano and
Victor.

The accused shall pay the costs of suit.

SO ORDERED.

SECOND DIVISION
G.R. No. 124058 December 10, 2003
PEOPLE OF THE PHILIPPINES, appellee,
vs.
JESUS G. RETUBADO alias "JESSIE," appellant.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision1 of the Regional Trial Court, Toledo City, Branch 29, in Criminal Case No. TCS-
2153 convicting the appellant Jesus G. Retubado of murder, sentencing him to reclusion perpetua, and directing
him to indemnify the heirs of the victim Emmanuel Cañon the sum of P50,000.00.
The appellant was indicted for murder in an Information, the accusatory portion of which reads:
That on the 5th day of November, 1993 at 9:30 o’clock in the evening, more or less, at Barangay I Poblacion,
Municipality of Tuburan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent to kill, by means of treachery, evident premeditation and taking
advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot
Emmanuel Cañon with the use of unlicensed revolver of unknown caliber, thereby hitting the latter on his
forehead, resulting to the instantaneous death of the said victim.
CONTRARY TO LAW.2
Shortly before November 5, 1993, someone played a joke on Edwin Retubado, the appellant’s younger brother
who was mentally ill. Someone inserted a lighted firecracker in a cigarette pack and gave it to Edwin. He brought
the cigarette home and placed it on the dining table as he was having dinner with his father. Momentarily, the
firecracker exploded. The suspect was Emmanuel Cañon, Jr., The Cañons and the appellant were neighbors. The
matter was brought to the attention of the barangay captain who conducted an investigation. It turned out that
Emmanuel Cañon, Jr. was not the culprit. The barangay captain considered the matter closed. The appellant,
however, was bent on confronting Emmanuel Cañon, Jr.
On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Cañon, Sr., a pedicab driver called it a day and
decided to go home after a day’s work. He drove his pedicab and stopped at the junction of Rizal and Gallardo
Streets, at the poblacion of Tuburan. The appellant, who was conversing with Marcial Luciño saw him. "Noy, why
is [it] your son did something to my brother?" Emmanuel ignored the appellant. The appellant was incensed and
ran after Emmanuel. He overtook Emmanuel, grabbed and pushed the pedicab which nearly fell into a canal.
Emmanuel again ignored the appellant and pedaled on until he reached his house. His wife, Norberta Cañon was
in the balcony of their house, above the porch waiting for him to arrive. Emmanuel, Jr., meanwhile, was already
asleep. Undeterred, the appellant continued following Emmanuel.
Shortly after Emmanuel had entered his house, the appellant arrived and tarried at the porch. Emmanuel
suddenly opened the door and demanded to know why he was being followed. The appellant told Emmanuel
that he just wanted to talk to Emmanuel, Jr., but Emmanuel told the appellant that his son was already asleep.
Norberta went down from the balcony and placed her hand on her husband’s shoulder to pacify him.
The appellant forthwith pulled out a handgun from under his T-shirt and shot Emmanuel on the forehead. The
latter fell to the floor as the appellant walked away from the scene. Norberta shouted for help. The neighbors,
her daughter, and her son-in-law arrived. They brought Emmanuel to the Tuburan District Hospital, but the
victim died shortly thereafter. Dr. Ivar G. Arellano, the Municipal Health Officer, performed an autopsy on the
cadaver of Emmanuel and prepared a report thereon with the following findings:
Examination in Detail:
On detailed examination, a gunshot wound was found at the left side of the forehead, measuring 1 cm. in
diameter. At the skin surrounding this wound was found powder burns which measured 3 cms. in diameter as
the skin had been blackened and burned by powder of the bullet. The underlying frontal bone was fractured and
depressed. The underlying meninges of the brain as well as the frontal area of the brain was traumatized and
injured. Blood and cerebrospinal fluid were leaking from this wound. The edges of this bullet wound was
inverted thus this was the gunshot entry wound. The wound was found to be circular in shape. The exit wound
was found at the left parietal bone measuring 1.2 cm. in size or diameter for this wound communicated with the
entry wound of the left side of the forehead. The connection from the wound of entry to the exit wound
measured 8 cms. The parietal bone was fractured and was depressed and the parietal part of the brain and
meninges was traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked out from this wound.
Possible cause of death:
1. Gunshot wound at the head (left side) with injury to brain and meninges
2. Hypovolemic shock secondary to loss of blood (Severe loss of blood)
(Sgd.) Ivar G. Arellano
MUN. Health Officer3
Dr. Charity Patalinghug and the victim’s daughter Loreta C. Claro signed Emmanuel’s Certificate of Death.4 The
appellant surrendered to the police authorities but failed to surrender the firearm he used to kill the victim.
Forensic Officer Myrna P. Areola of the PNP Regional Office subjected the appellant to paraffin tests. The
Chemical Analysis of the paraffin casts gave the following results:
FINDINGS: After due proceedings, the trial court rendered judgment in Criminal Case No. TCS-2153, convicting the appellant
of murder, and sentencing him to reclusion perpetua. The decretal portion of the decision reads:
...
WHEREFORE, in view of the foregoing, this Court finds accused GUILTY beyond reasonable doubt of the crime of
1. POSITIVE for the presence of gunpowder residue on his left hand cast. Murder under Art. 248 R.P.C. and sentences the accused to the penalty of Reclusion Perpetua and to indemnify
the heirs of the deceased the sum of P50,000.00.
2. NEGATIVE for the presence of gunpowder residue on his right hand cast.5
However, accused is given full credit of his preventive imprisonment.
Norberta also testified on the expenses incurred by her family due to her husband’s death. No documentary
evidence was, however, offered to support the same. She declared that she felt sad and lonely as a result of her SO ORDERED.8
husband's death.
On appeal, the appellant assails the decision of the trial court contending that:
The Case for the Appellant
I
The appellant admitted shooting the victim but claimed that he was merely performing a lawful act with due
care; hence, cannot be held criminally liable for the victim’s death. He testified that when he insisted that First Assignment of Error
Emmanuel wake up his son, Emmanuel went to his room and emerged therefrom holding a handgun with his
right hand. Emmanuel’s trigger finger was outside the trigger guard, and he held the firearm with the muzzle THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED AS CAUSED BY MERE ACCIDENT
facing downward. Fearing that he would be shot, the appellant took hold of Emmanuel’s right hand with his left, WITHOUT FAULT OR INTENTION OF CAUSING IT WHILE THE ACCUSED WAS PERFORMING A LAWFUL ACT WITH
and pulled the gun towards Emmanuel’s stomach. The appellant grabbed Emmanuel’s free hand with his right DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF
hand, and the old man almost fell on his knees to the ground. Emmanuel still resisted. The appellant pulled the MURDER.
gun to the level of Emmanuel’s forehead, and the gun suddenly went off. The bullet hit Emmanuel’s forehead.
Norberta fled from the house. For his part, the appellant rushed to his house to change clothes. He placed the
II
gun on the dining table before entering his bedroom. When he went back to the dining room to get the gun, his
younger sister, Enrica told him that their brother Edwin had taken the gun. He found Edwin outside their house
near the church, and the latter told the appellant that he threw the gun into the sea. When the appellant asked Second Assignment of Error
his brother to show him where he threw the gun, Edwin refused to do so.
THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND MATERIAL CONTENTS OF EXHIBIT "B" OF
Marcial Luciño corroborated the appellant’s testimony. He testified that he was talking with the appellant at THE PROSECUTION --- CHEMISTRY REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE ACCUSED.
around 9:00 p.m. at the junction of Rizal and Gallardo streets when the victim Emmanuel passed by in his
pedicab. When the appellant called the victim, the latter ignored the call, prompting the appellant to chase the III
victim, and eventually push the pedicab into a canal.
Third Assignment of Error
The appellant’s father, Iñigo Retubado, testified that on the evening of November 5, 1993, he was in their house
with Edwin, his son who was mentally-ill. It was already late when the appellant arrived. The appellant was THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE SOLE WITNESS OF THE PROSECUTION
disheveled, and laid down the gun he was carrying on the table. The appellant told his father that he would IS SATISFACTORY AND SUFFICIENT TO CONVICT THE ACCUSED OF MURDER.
surrender to the police because he had shot somebody.6 The appellant thereafter went to his room to change
clothes while Iñigo went to the comfort room to answer the call of nature. When he was done, he saw the
appellant frantically looking for the gun. As Edwin was also nowhere to be found, Iñigo concluded that Edwin IV
might have taken the gun with him. He also testified on Edwin’s mental imbalance and on the latter’s
confinement at the Psychiatric Department of the Don Vicente Sotto Memorial Medical Center in Cebu City Fourth Assignment of Error
sometime in 1991.7
THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED HAS EXPLAINED WHY HE FAILED TO
On November 6, 1993, the appellant surrendered to the police authorities. Although he was required by the SURRENDER THE GUN WHICH HE GOT FROM THE DECEASED.9
municipal trial court to file his counter-affidavit, the appellant refused to do so.
The appellant asserts that he was merely performing a lawful act of defending himself when he grabbed the The justification is what is referred to in the Spanish Penal Code as el estado de necessidad:
victim’s hand which held the gun. The gun accidentally fired and the bullet hit the victim’s forehead. The
accident was not the appellant’s fault. The appellant asserts that when he wrestled with the victim for the Es una situacion de peligro, actual o immediato para bienes, juridicamente protegides que solo puede ser evitada
possession of the gun, he was merely defending himself. He contends that he had no intention of killing the mediante, la lesion de bienes, tambien juridicamento protegidos, pertenecientes a otra personas. 11
victim, as he merely wanted to talk to his son. If he had wanted to kill the victim, he could have easily done so
when he met the latter for the first time that fateful night of November 5, 1993. Moreover, the appellant
The phrase "state of necessity" is of German origin. Countries which have embraced the classical theory of
submits, he did not commit any felony; hence, under paragraph 4 of Article 12 of the Revised Penal Code, he is
criminal law, like Italy, do not use the phrase. The justification refers to a situation of grave peril (un mal), actual
not criminally liable for the death of the victim.10 In the alternative, the appellant asserts that he should be
or imminent (actual o imminente). The word propiedad covers diverse juridical rights (bienes juridicos) such as
convicted only of the crime of homicide under Article 249 of the Revised Penal Code, since the qualifying
right to life, honor, the integrity of one’s body, and property (la vida, la integridad corporal, el pudor, el honor,
circumstance of treachery is wanting. He and the victim had a heated exchange of words before they grappled
bienes patrimoniales) belonging to another.12
for the possession of the gun. Such heated discussion had already forewarned the victim and placed him on
guard; thus, treachery cannot be legally considered.
It is indispensable that the state of necessity must not be brought about by the intentional provocation of the
party invoking the same.13
The contention of the appellant has no merit. Article 11, paragraph 4 of the Revised Penal Code reads:

A number of legal scholars in Europe are of the view that the act of the accused in a state of necessity is
ART. 11. Justifying circumstances. –
justifying circumstance; hence, lawful. Under Article 12, paragraph 4 of the Revised Penal Code, a "state of
necessity" is a justifying circumstance. The accused does not commit a crime in legal contemplation; hence, is
... not criminally and civilly liable. Civil liability is borne by the person/persons benefited by the act of the accused.
Crimes cannot exist unless the will concurs with the act, and when, says Blackstone, "a man intending to do a
4) Any person who, in order to avoid an evil or injury, does an act which causes damage to another provided that lawful act, does that which is unlawful, the deed and the will act separately" and there is no conjunction
the following requisites are present: between them which is necessary to constitute a crime.14 Others are of the view that such act is a cause for
exclusion from being meted a penalty; still others view such act as a case of excluding the accused from
First. That the evil sought to be avoided actually exists; culpability.

Second. That the injury feared be greater than that done to avoid it; According to Groizard, rights may be prejudiced by three general classes of acts, namely, (a) malicious and
intentional acts; (b) negligent or reckless acts; (c) acts which are neither malicious, imprudent nor negligent but
nevertheless cause damages.
Third. That there be no other practical and less harmful means of preventing it.

Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres clases de hechos.1âwphi1 Por actos
The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code, which reads:
maliciosos, intencionales, encaminados directamente a causarnos daño; por actos que, sin llevar ese malicioso
fin y por falta de prudencia, por culpa o temeridad del que los ejecuta, den ese mismo resultado, y por actos que,
ARTICULO 8. sin concurrir en su ejecucion un proposito doloso, ni culpa, ni negligencia sin embargo produzcan menocabo en
nuestros bienes.15
7. El que para evitar un mal ejecuta un hecho que produzca dañ en la propiedad ajena, siempre que concurran
las circumstancias siguientes: The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of the Revised Penal
Code. It is an affirmative defense that must be proved by the accused with clear and convincing evidence. By
Primera. Realidad del mal que se trata de evitar. admitting causing the injuries and killing the victim, the accused must rely on the strength of his own evidence
and not on the weakness of the evidence of the prosecution because if such evidence is weak but the accused
Segunda. Quesea mayor que el causado para evitarlo. fails to prove his defense, the evidence of the prosecution can no longer be disbelieved. Whether the accused
acted under a state of necessity is a question of fact, which is addressed to the sound discretion of the trial court.
The legal aphorism is that the findings of facts by the trial court, its calibration of the testimony of the witnesses
Tercera. Que no haya otro medio practicable y menos of the parties and of the probative weight thereof as well as its conclusions based on its own findings are
perjudicial para impedirlo. accorded by the appellate court high respect, if not conclusive effect, unless the trial court ignored,
misconstrued or misapplied cogent facts and circumstances of substance which, if considered, will change the
Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation of the Spanish Penal Code. The outcome of the case. We have meticulously reviewed the records and find no basis to deviate from the findings
phrase "an injury" does not appear in the first paragraph in the Spanish Penal Code. Neither does the word of the trial court that the appellant was the provocateur, the unlawful aggressor and the author of a deliberate
"injury" appear in the second subparagraph of the Spanish Penal Code. and malicious act of shooting the victim at close range on the forehead.
First: When Norberta heard her husband and the appellant arguing with each other in the porch of their house, Fiscal Pansoy:
she went down from the balcony towards her husband and placed her hand on the latter’s shoulders. She was
shocked when the appellant pulled out his handgun and deliberately shot the victim on the forehead, thus: Q Now, just a while ago you were making a motion using your hand placed inside your T-shirt. Now, when you
saw the firearm for the first time where did you saw (sic) the firearm for the first time where did the firearm
Q Now, you said that when your husband was about to go out again in order to see his trisicad and as he opened come from as you saw it from the hands of the accused?
the door he saw Jesus Retubado near the door. What happened after that?
Atty. Pepito:
A He asked Jesus Retubado why Jesus Retubado chased him when he was driving his trisicad.
Already answered. It came from the hands of the accused.
Q Now, as your husband was asking this question to the accused Jesus Retubado what was the distance to your
husband at the time? Fiscal Pansoy:

A Just very near to him. I will reform.

Q And you to the accused at that very moment what was more or less your distance? Q Before you saw the firearm in the hands of the accused where did the firearm come from?

A About an armslength. Atty. Pepito:

Q When your husband asked Jesus Retubado why the latter chased him while your husband was driving She is incompetent. We object.
his trisicadwhat was the answer of Jesus Retubado, if any?
COURT:
A My husband asked the accused Jesus Retubado what is his grudge to him and Jesus Retubado answered that it
is not you who has a grudge to me but it is your son.
Reform the question.

Q When Jesus Retubado uttered that statement what transpired after that?
Fiscal Pansoy:

A He immediately pointed his firearm that he was bringing (sic) to my husband Emmanuel Cañon.
Q By the way considering that you were just near to both your husband and the accused where did that firearm
that you said was pointed by the accused to your husband come (sic) from?
A While the accused was standing in front of our door his hands were placed inside his T-shirt covered by his T-
shirt.
Atty. Pepito:
Q Now, Mrs. Witness, before this question was asked to you as to where the firearm came from you were
making a motion by placing your hands inside your shirt when you were only asked as to where the firearm came
from?
A That was what the position of the accused when he was standing in front of our door and I do not know what
was inside his T-shirt. I only know that he was carrying a firearm when it fired.
Q Now, when the accused pointed the firearm to your husband and fired the same more or less what was the
distance between the accused and your husband at the very precise time when the firing was made?

We move to strike out the answer. It is not responsive, Your Honor. The question was, where did it come from? A It was just very near because his hand did not bend. (Witness demonstrating by pointing to her forehead).

COURT: Q Now, more or less, describe to the Court the approximate distance between the firearm that was pointed to
your husband and the forehead of your husband at the time when the firing was done?
Let the answer stay in the record but let the witness answer again.
A It touched the forehead of my husband.
A From the hands of accused Jessie.
Q That was the very time that you heard the gunburst?
A Yes. an unlicensed firearm to shoot the victim, the prosecution failed to prove that the appellant had no license to
possess the same. Hence, the aggravating circumstance of the use of an unlicensed firearm to commit homicide
Q When the accused fired the firearm that was carried by him, what happened to your husband? should not be appreciated against the appellant.

A My husband fell down backward to the ground inside the house.
Q By the way, what was the flooring of your house where your husband fell backward to the ground?
A Cemented.
The appellant is entitled to the mitigating circumstance of voluntary surrender. He turned himself in to the police
authorities prior to the issuance of any warrant for his arrest.
The trial court awarded ₱50,000.00 as civil indemnity18 to the heirs of the deceased. In addition, the heirs are
entitled to moral damages in the amount of ₱50,000.0019 and the temperate damages in the amount of
₱25,000.00 since no sufficient proof of actual damages was offered.20

Q By the way considering that you were just very near to where the incident occurred can you describe the
length of the firearm that was used by the accused in firing your husband?
A It was a short firearm about 6 inches.
Q Now, as your husband fell down to the floor where did the accused proceed and what did the accused do?
WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The appellant Jesus G. Retubado alias
"Jessie" is found GUILTY beyond reasonable doubt of homicide defined in and penalized by Article 249 of the
Revised Penal Code and is hereby sentenced to suffer an indeterminate sentence of ten (10) years of prision
mayor, in its medium period, as minimum, to fifteen (15) years of reclusion temporal, in its medium period, as
maximum, and to pay the heirs of the victim, Emmanuel Cañon, ₱50,000.00 as civil indemnity; ₱50,000.00 as
moral damages; and P25,000.00 as temperate damages.

A He was just casually walking away as if nothing had happened. SO ORDERED.

Q Now, what did you do to your husband, if any, after he fell down to the floor? Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

A I have done nothing because I was somewhat shocked. I could not move because I was shocked. 16

Second: After shooting the victim, the appellant fled from the situs criminis. He surrendered to the police
authorities only on November 6, 1993, but failed to surrender the gun he used to kill the victim. The appellant’s
claim that he placed the gun on the dining table before entering his bedroom to change his clothes is incredible.
There is no evidence that the appellant informed the police authorities that he killed the victim in a state of
necessity and that his brother, Edwin, threw the gun into the sea. The appellant never presented the police
officer to whom he confessed that he killed the victim in a state of necessity.

Third: The appellant had the motive to shoot and kill the victim.1avvphi1 The victim ignored the appellant as the
latter talked to him at the junction of Rizal and Gallardo streets, in the poblacion of Tuburan. The appellant was
incensed at the effrontery of the victim, a mere pedicab driver. The appellant followed the victim to his house
where the appellant again confronted him. The appellant insisted on talking with the victim’s son but the victim
refused to wake up the latter. The appellant, exasperated at the victim’s intransigence, pulled out a gun from
under his shirt and shot the victim on the forehead. It was impossible for the victim to survive. With the
appellant’s admission that he shot the victim, the matter on whether he used his right or left hand to shoot the
latter is inconsequential.

We agree with the contention of the Solicitor General that there is no treachery in the present case to qualify the
crime to murder. To appreciate treachery, two (2) conditions must be present, namely, (a) the employment of
the means of execution that give the person attacked no opportunity to defend himself or to retaliate, and (b)
the means of execution were deliberately or consciously adopted.17 The prosecution failed to adduce an iota of
evidence to support the confluence of the abovementioned conditions. Thus, the appellant is guilty only of
homicide under Article 249 of the Revised Penal Code. Although the Information alleges that the appellant used
 Republic of the Philippines and Virgilio Manguerra (Manguerra), Carlos David, Ruben Lugtu, Moises Lacson (Lacson), Renato Yu, Jaime
SUPREME COURT Pabalan (Pabalan) and Carlos David (David), who were either members of the Civil Home Defense Force (CHDF)
Manila or civilian volunteer officers in Barangays Quebiawan, Del Carmen and Telebastagan. They were all charged with
murder, multiple attempted murder and frustrated murder in three Informations, the inculpatory portions of
THIRD DIVISION which read:

G.R. Nos. 120744-46 June 25, 2012 Criminal Case No. 16612:

SALVADOR YAPYUCO y ENRIQUEZ, Petitioner, That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga, Philippines, and
vs. within the jurisdiction of this Honorable Court, the above-named accused, all public officers, being then
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents. policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force (CHDF), respectively,
confederating and mutually helping one another, and while responding to information about the presence of
armed men in said barangay and conducting surveillance thereof, thus committing the offense in relation to their
x-----------------------x
office, did then and there, with treachery and evident premeditation, willfully, unlawfully and feloniously, and
with deliberate intent to take the life of Leodevince S. Licup, attack the latter with automatic weapons by firing
G.R. No. 122677 directly at the green Toyota Tamaraw jitney ridden by Leodevince S. Licup and inflicting multiple gunshot
wounds which are necessarily mortal on the different parts of the body, thereby causing the direct and
MARIO D. REYES, ANDRES S. REYES and VIRGILIO A. MANGUERRA, Petitioners, immediate death of the latter.
vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents. CONTRARY TO LAW.3

x-----------------------x Criminal Case No. 16613:

G.R. No. 122776 That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, all public officers, being then
GERVACIO B. CUNANAN, JR. and ERNESTO PUNO, Petitioners, policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force (CHDF), respectively,
vs. confederating and mutually helping one another, and while responding to information about the presence of
HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. armed men in said barangay and conducting surveillance thereof, thus committing the offense in relation to their
office, did then and there, with treachery and evident premeditation, willfully, unlawfully and feloniously, and
DECISION with intent to kill, attack Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican with
automatic weapons by firing directly at the green Toyota Tamaraw jitney ridden by said Eduardo S. Flores,
Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican, having commenced the commission of murder
PERALTA, J.: directly by overt acts of execution which should produce the murder by reason of some cause or accident other
than their own spontaneous desistance.
Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton violence is never justified
when their duty could be performed otherwise. A "shoot first, think later" disposition occupies no decent place CONTRARY TO LAW.4
in a civilized society. Never has homicide or murder been a function of law enforcement. The public peace is
never predicated on the cost of human life.
Criminal Case No. 16614:

These are petitions for review on certiorari under Rule 45 of the Rules of Court assailing the June 30, 1995
Decision1 of the Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614 – cases for murder, frustrated
murder and multiple counts of attempted murder, respectively. The cases are predicated on a shooting incident
on April 5, 1988 in Barangay Quebiawan, San Fernando, Pampanga which caused the death of Leodevince Licup
(Licup) and injured Noel Villanueva (Villanueva). Accused were petitioners Salvador Yapyuco, Jr. (Yapyuco) and
Generoso Cunanan, Jr. (Cunanan) and Ernesto Puno (Puno) who were members of the Integrated National Police
(INP)2 stationed at the Sindalan Substation in San Fernando, Pampanga; Jose Pamintuan (Pamintuan) and Mario
Reyes, who were barangay captains of Quebiawan and Del Carmen, respectively; Ernesto Puno, Andres Reyes
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, all public officers, being then
policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force (CHDF), respectively,
confederating and mutually helping one another, and while responding to information about the presence of
armed men in said barangay and conducting surveillance thereof, thus committing the offense in relation to their
office, did then and there, with treachery and evident premeditation, willfully, unlawfully and feloniously, and
with intent of taking the life of Noel C. Villanueva, attack the latter with automatic weapons by firing directly at
the green Toyota Tamaraw jitney driven by said Noel C. Villanueva and inflicting multiple gunshot wounds which
are necessarily mortal and having performed all the acts which would have produced the crime of murder, but
which did not, by reason of causes independent of the defendants’ will, namely, the able and timely medical
assistance given to said Noel C. Villanueva, which prevented his death.
CONTRARY TO LAW.5
Hailed to court on April 30, 1991 after having voluntarily surrendered to the authorities,6 the accused – except
Pabalan who died earlier on June 12, 1990,7 and Yapyuco who was then allegedly indisposed8 – entered
individual pleas of not guilty.9 A month later, Yapyuco voluntarily surrendered to the authorities, and at his
arraignment likewise entered a negative plea.10 In the meantime, Mario Reyes, Andres Reyes, David, Lugtu,
Lacson, Yu and Manguerra jointly filed a Motion for Bail relative to Criminal Case No. 16612.11 Said motion was
heard on the premise, as previously agreed upon by both the prosecution and the defense, that these cases
would be jointly tried and that the evidence adduced at said hearing would automatically constitute evidence at
the trial on the merits.12 On May 10, 1991, the Sandiganbayan granted bail in Criminal Case No. 16612.13 Yapyuco
likewise applied for bail on May 15, 1991 and the same was also granted on May 21, 1991.14 Pamintuan died on
November 21, 1992,15 and accordingly, the charges against him were dismissed.
At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial inquest. 16 Hence, joint trial
on the merits ensued and picked up from where the presentation of evidence left off at the hearing on the bail
applications.
The prosecution established that in the evening of April 5, 1988, Villanueva, Flores, Calma, De Vera, Panlican and
Licup were at the residence of Salangsang as guests at the barrio fiesta celebrations between 5:00 and 7:30 p.m..
The company decided to leave at around 7:30 p.m., shortly after the religious procession had passed. As they
were all inebriated, Salangsang reminded Villanueva, who was on the wheel, to drive carefully and watch out for
potholes and open canals on the road. With Licup in the passenger seat and the rest of his companions at the
back of his Tamaraw jeepney, Villanueva allegedly proceeded at 5-10 kph with headlights dimmed. Suddenly, as
they were approaching a curve on the road, they met a burst of gunfire and instantly, Villanueva and Licup were
both wounded and bleeding profusely.17
Both Flores and Villanueva, contrary to what the defense would claim, allegedly did not see any one on the road
flag them down.18 In open court, Flores executed a sketch19 depicting the relative location of the Tamaraw
jeepney on the road, the residence of Salangsang where they had come from and the house situated on the right
side of the road right after the curve where the jeepney had taken a left turn; he identified said house to be that
of a certain Lenlen Naron where the gunmen allegedly took post and opened fire at him and his companions. He
could not tell how many firearms were used. He recounted that after the shooting, he, unaware that Licup and
Villanueva were wounded, jumped out of the jeepney when he saw from behind them Pamintuan emerging from
the yard of Naron’s house. Frantic and shaken, he instantaneously introduced himself and his companions to be
employees of San Miguel Corporation but instead, Pamintuan reproved them for not stopping when flagged. At
this point, he was distracted when Villanueva cried out and told him to summon Salangsang for help as he
(Villanueva) and Licup were wounded. He dashed back to Salangsang’s house as instructed and, returning to the
scene, he observed that petitioner Yu was also there, and Villanueva and Licup were being loaded into a Sarao
jeepney to be taken to the hospital.20 This was corroborated by Villanueva who stated that as soon as the firing
had ceased, two armed men, together with Pamintuan, approached them and transferred him and Licup to
another jeepney and taken to the nearby St. Francis Hospital.21
Flores remembered that there were two sudden bursts of gunfire which very rapidly succeeded each other, and
that they were given no warning shot at all contrary to what the defense would say.22 He professed that he,
together with his co-passengers, were also aboard the Sarao jeepney on its way to the hospital and inside it he
observed two men, each holding long firearms, seated beside the driver. He continued that as soon as he and his
companions had been dropped off at the hospital, the driver of the Sarao jeepney immediately drove off
together with his two armed companions.23 He further narrated that the day after the shooting, he brought Licup
to the Makati Medical Center where the latter expired on April 7, 1988.24 He claimed that all the accused in the
case had not been known to him prior to the incident, except for Pamintuan whom he identified to be his wife’s
uncle and with whom he denied having had any rift nor with the other accused for that matter, which would
have otherwise inspired ill motives. 25 He claimed the bullet holes on the Tamaraw jeepney were on the
passenger side and that there were no other bullet holes at the back or in any other portion of the vehicle.26
Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the presence of his companions at
his residence on the subject date and time, and corroborated Villanueva’s and Flores’ narration of the events
immediately preceding the shooting. He recounted that after seeing off his guests shortly after the procession
had passed his house and reminding them to proceed carefully on the pothole-studded roads, he was alarmed
when moments later, he heard a volley of gunfire from a distance which was shortly followed by Flores’ frantic
call for help. He immediately proceeded to the scene on his bicycle and saw Pamintuan by the lamppost just
outside the gate of Naron’s house where, inside, he noticed a congregation of more or less six people whom he
could not recognize. 27At this point, he witnessed Licup and Villanueva being loaded into another jeepney
occupied by three men who appeared to be in uniform. He then retrieved the keys of the Tamaraw jeepney from
Villanueva and decided to deliver it to his mother’s house, but before driving off, he allegedly caught a glance of
Mario Reyes on the wheel of an owner-type jeepney idling in front of the ill-fated Tamaraw; it was the same
jeepney which he remembered to be that frequently used by Yapyuco in patrolling the barangay. He claimed he
spent the night at his mother’s house and in the morning, a policeman came looking for him with whom,
however, he was not able to talk.28
Salangsang observed that the scene of the incident was dark because the electric post in front of Naron’s house
was strangely not lit when he arrived, and that none of the neighboring houses was illuminated. He admitted his
uncertainty as to whether it was Yapyuco’s group or the group of Pamintuan that brought his injured
companions to the hospital, but he could tell with certainty that it was the Sarao jeepney previously identified by
Villanueva and Flores that brought his injured companions to the hospital.29
Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in Camp Olivas, affirmed that
she had previously examined the firearms suspected to have been used by petitioners in the shooting and found
them positive for gunpowder residue. She could not, however, determine exactly when the firearms were
discharged; neither could she tell how many firearms were discharged that night nor the relative positions of the
gunmen. She admitted having declined to administer paraffin test on petitioners and on the other accused
because the opportunity therefor came only 72 hours after the incident. She affirmed having also examined the
Tamaraw jeepney and found eleven (11) bullet holes on it, most of which had punctured the door at the
passenger side of the vehicle at oblique and perpendicular directions. She explained, rather inconclusively, that
the bullets that hit at an angle might have been fired while the jeepney was either at a standstill or moving
forward in a straight line, or gradually making a turn at the curve on the road.30 Additionally, Silvestre Lapitan,
administrative and supply officer of the INP-Pampanga Provincial Command tasked with the issuance of firearms
and ammunitions to members of the local police force and CHDF and CVO members, identified in court the
memorandum receipts for the firearms he had issued to Mario Reyes, Andres Reyes, Manguerra, Pabalan and
Yapyuco.31
Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined the injuries of Villanueva
and Licup on April 6, 1988. He recovered multiple metal shrapnel from the occipital region of Villanueva’s head
as well as from the posterior aspect of his chest; he noted nothing serious in these wounds in that the incapacity
would last between 10 and 30 days only. He also located a bullet wound on the front lateral portion of the right
thigh, and he theorized that this wound would be caused by a firearm discharged in front of the victim, assuming
the assailant and the victim were both standing upright on the ground and the firearm was fired from the level of
the assailant’s waist; but if the victim was seated, the position of his thigh must be horizontal so that with the
shot coming from his front, the trajectory of the bullet would be upward. He hypothesized that if the shot would
come behind Villanueva, the bullet would enter the thigh of the seated victim and exit at a lower level.32
With respect to Licup, Dr. Solis declared he was still alive when examined. On the patient, he noted a lacerated
wound at the right temporal region of the head – one consistent with being hit by a hard and blunt object and
not a bullet. He noted three (3) gunshot wounds the locations of which suggested that Licup was upright when
fired upon from the front: one is a through-and-through wound in the middle lateral aspect of the middle
portion of the right leg; another, through-and-through wound at the middle portion of the right forearm; and
third one, a wound in the abdomen which critically and fatally involved the stomach and the intestines. He
hypothesized that if Licup was seated in the passenger seat as claimed, his right leg must have been exposed and
the assailant must have been in front of him holding the gun slightly higher than the level of the bullet entry in
the leg. He found that the wound in the abdomen had entered from the left side and crossed over to and exited
at the right, which suggested that the gunman must have been positioned at Licup’s left side. He explained that if
this wound had been inflicted ahead of that in the forearm, then the former must have been fired after Licup
had changed his position as a reaction to the first bullet that hit him. He said that the wound on the leg must
have been caused by a bullet fired at the victim’s back and hit the jeepney at a downward angle without hitting
any hard surface prior.33
Dr. Solis believed that the wound on Licup’s right forearm must have been caused by a bullet fired from the front
but slightly obliquely to the right of the victim. Hypothesizing, he held the improbability of Licup being hit on the
abdomen, considering that he might have changed position following the infliction of the other wounds, unless
there was more than one assailant who fired multiple shots from either side of the Tamaraw jeepney; however,
he proceeded to rule out the possibility of Licup having changed position especially if the gunfire was delivered
very rapidly. He could not tell which of Licup’s three wounds was first inflicted, yet it could be that the bullet to
the abdomen was delivered ahead of the others because it would have caused Licup to lean forward and stoop
down with his head lying low and steady.34
Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission (NAPOLCOM) affirmed that the
accused police officers Yapyuco, Cunanan and Puno had been administratively charged with and tried for gross
misconduct as a consequence of the subject shooting incident and that he had in fact conducted investigations
thereon sometime in 1989 and 1990 which culminated in their dismissal from service. 35 Dolly Porqueriño,
stenographer at the NAPOLCOM, testified that at the hearing of the administrative case, Yapyuco authenticated
the report on the shooting incident dated April 5, 1988 which he had previously prepared at his office. This,
according to her, together with the sketch showing the relative position of the responding law enforcers and the
Tamaraw jeepney at the scene of the incident, had been forwarded to the NAPOLCOM Central Office for
consideration.36 The Sandiganbayan, in fact, subpoenaed these documents together with the joint counter-
affidavits which had been submitted in that case by Yapyuco, Cunanan and Puno.
Of all the accused, only Yapyuco took the stand for the defense. He identified himself as the commander of the
Sindalan Police Substation in San Fernando, Pampanga and the superior officer of petitioners Cunanan and Puno
and of the accused Yu whose jurisdiction included Barangays Quebiawan and Telebastagan. He narrated that in
the afternoon of April 5, 1988, he and his men were investigating a physical injuries case when Yu suddenly
received a summon for police assistance from David, who supposedly was instructed by Pamintuan, concerning a
reported presence of armed NPA members in Quebiawan. Yapyuco allegedly called on their main station in San
Fernando for reinforcement but at the time no additional men could be dispatched. Hence, he decided to
respond and instructed his men to put on their uniforms and bring their M-16 rifles with them.37
Yapyuco continued that at the place appointed, he and his group met with Pamintuan who told him that he had
earlier spotted four (4) men carrying long firearms. As if sizing up their collective strength, Pamintuan allegedly
intimated that he and barangay captain Mario Reyes of nearby Del Carmen had also brought in a number of
armed men and that there were likewise Cafgu members convened at the residence of Naron. Moments later,
Pamintuan announced the approach of his suspects, hence Yapyuco, Cunanan and Puno took post in the middle
of the road at the curve where the Tamaraw jeepney conveying the victims would make an inevitable turn. As
the jeepney came much closer, Pamintuan announced that it was the target vehicle, so he, with Cunanan and
Puno behind him, allegedly flagged it down and signaled for it to stop. He claimed that instead of stopping, the
jeepney accelerated and swerved to its left. This allegedly inspired him, and his fellow police officers Cunanan
and Puno,38 to fire warning shots but the jeepney continued pacing forward, hence they were impelled to fire at
the tires thereof and instantaneously, gunshots allegedly came bursting from the direction of Naron’s house
directly at the subject jeepney.39
Yapyuco recalled that one of the occupants of the jeepney then alighted and exclaimed at Pamintuan that they
were San Miguel Corporation employees. Holding their fire, Yapyuco and his men then immediately searched the
vehicle but found no firearms but instead, two injured passengers whom they loaded into his jeepney and
delivered to nearby St. Francis Hospital. From there he and his men returned to the scene supposedly to
investigate and look for the people who fired directly at the jeepney. They found no one; the Tamaraw jeepney
was likewise gone.40
Yapyuco explained that the peace and order situation in Barangay Quebiawan at the time was in bad shape, as in
fact there were several law enforcement officers in the area who had been ambushed supposedly by rebel
elements,41 and that he frequently patrolled the barangay on account of reported sightings of unidentified
armed men therein.42 That night, he said, his group which responded to the scene were twelve (12) in all,
comprised of Cunanan and Puno from the Sindalan Police Substation, 43 the team composed of Pamintuan and
his men, as well as the team headed by Captain Mario Reyes. He admitted that all of them, including himself,
were armed.44 He denied that they had committed an ambuscade because otherwise, all the occupants of the
Tamaraw jeepney would have been killed. 45 He said that the shots which directly hit the passenger door of the
jeepney did not come from him or from his fellow police officers but rather from Cafgu members assembled in
the residence of Naron, inasmuch as said shots were fired only when the jeepney had gone past the spot on the
road where they were assembled.46
Furthermore, Yapyuco professed that he had not communicated with any one of the accused after the incident
because he was at the time very confused; yet he did know that his co-accused had already been investigated by
the main police station in San Fernando, but the inquiries did not include himself, Cunanan and Puno.47 He
admitted an administrative case against him, Cunanan and Puno at the close of which they had been ordered
dismissed from service; yet on appeal, the decision was reversed and they were exonerated. He likewise alluded
to an investigation independently conducted by their station commander, S/Supt. Rolando Cinco. 48
S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando, Pampanga acknowledged the
volatility of the peace and order situation in his jurisdiction, where members of the police force had fallen
victims of ambuscade by lawless elements. He said that he himself has actually conducted investigations on the
Pamintuan report that rebel elements had been trying to infiltrate the employment force of San Miguel
Corporation plant, and that he has accordingly conducted "clearing operations" in sugarcane plantations in the
barangay. He intimated that days prior to the incident, Yapyuco’s team had already been alerted of the presence
of NPA members in the area. Corroborating Yapyuco’s declaration, he confessed having investigated the
shooting incident and making a report on it in which, curiously, was supposedly attached Pamintuan’s statement
referring to Flores as being "married to a resident of Barangay Quebiawan" and found after surveillance to be
"frequently visited by NPA members." He affirmed having found that guns were indeed fired that night and that
the chief investigator was able to gather bullet shells from the scene. 49
Cunanan and Puno did not take the witness stand but adopted the testimony of Yapyuco as well as the latter’s
documentary evidence.50 Mario Reyes, Andres Reyes, Lugtu, Lacson, Yu and Manguera, waived their right to
present evidence and submitted their memorandum as told.51
The Sandiganbayan reduced the basic issue to whether the accused had acted in the regular and lawful
performance of their duties in the maintenance of peace and order either as barangay officials and as members
of the police and the CHDF, and hence, could take shelter in the justifying circumstance provided in Article 11 (5)
of the Revised Penal Code; or whether they had deliberately ambushed the victims with the intent of killing
them.52 With the evidence in hand, it found Yapyuco, Cunanan, Puno, Manguera and Mario and Andres Reyes
guilty as co-principals in the separate offense of homicide for the eventual death of Licup (instead of murder as
charged in Criminal Case No. 16612) and of attempted homicide for the injury sustained by Villanueva (instead of
frustrated murder as charged in Criminal Case No. 16614), and acquitted the rest in those cases. It acquitted all
of them of attempted murder charged in Criminal Case No. 16613 in respect of Flores, Panlican, De Vera and
Calma. The dispositive portion of the June 30, 1995 Joint Decision reads:
WHEREFORE, judgment is hereby rendered as follows:
I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco,
Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and Virgilio Manguerra y
Adona are hereby found GUILTY beyond reasonable doubt as co-principals in the offense of Homicide,
as defined and penalized under Article 249 of the Revised Penal Code, and crediting all of them with
the mitigating circumstance of voluntary surrender, without any aggravating circumstance present or
proven, each of said accused is hereby sentenced to suffer an indeterminate penalty ranging from SIX
(6) YEARS and ONE (1) DAY of prision correccional, as the minimum, to TWELVE (12) YEARS and ONE (1)
DAY of reclusion temporal, as the maximum; to indemnify, jointly and severally, the heirs of the
deceased victim Leodevince Licup in the amounts of ₱77,000.00 as actual damages and ₱600,000.00 as
moral/exemplary damages, and to pay their proportionate shares of the costs of said action.
II. In Crim. Case No. 16613, for insufficiency of evidence, all the accused charged in the information,
namely, Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario
Reyes y David, Carlos David y Bañez, Ruben Lugtu y Lacson, Moises Lacson y Adona, Renato Yu y
Barrera, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby acquitted of the
offense of Multiple Attempted Murder charged therein, with costs de oficio.
III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco,
Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and Virgilio Manguerra y
Adona are hereby found GUILTY beyond reasonable doubt as co-principals in the offense Attempted
Homicide, as defined and penalized under Article 249, in relation to Article 6, paragraph 3, both of the
Revised Penal Code, and crediting them with the mitigating circumstance of voluntary surrender,
without any aggravating circumstance present or proven, each of said accused is hereby sentenced to
suffer an indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY of prision
correccional as the minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor as the maximum; to
indemnify, jointly and severally, the offended party Noel Villanueva in the amount of ₱51,700.00 as
actual and compensatory damages, plus ₱120,000.00 as moral/exemplary damages, and to pay their
proportionate share of the costs of said action.
SO ORDERED.53
The Sandiganbayan declared that the shootout which caused injuries to Villanueva and which brought the
eventual death of Licup has been committed by petitioners herein willfully under the guise of maintaining peace
and order;54that the acts performed by them preparatory to the shooting, which ensured the execution of their
evil plan without risk to themselves, demonstrate a clear intent to kill the occupants of the subject vehicle; that
the fact they had by collective action deliberately and consciously intended to inflict harm and injury and had
voluntarily performed those acts negates their defense of lawful performance of official duty;55 that the theory
of mistaken belief could not likewise benefit petitioners because there was supposedly no showing that they had
sufficient basis or probable cause to rely fully on Pamintuan’s report that the victims were armed NPA members,
and they have not been able by evidence to preclude ulterior motives or gross inexcusable negligence when they
acted as they did;56 that there was insufficient or total absence of factual basis to assume that the occupants of
the jeepney were members of the NPA or criminals for that matter; and that the shooting incident could not
have been the product of a well-planned and well-coordinated police operation but was the result of either a
hidden agenda concocted by Barangay Captains Mario Reyes and Pamintuan, or a hasty and amateurish attempt
to gain commendation.57
These findings obtain context principally from the open court statements of prosecution witnesses Villanueva,
Flores and Salangsang, particularly on the circumstances prior to the subject incident. The Sandiganbayan
pointed out that the Tamaraw jeepney would have indeed stopped if it had truly been flagged down as claimed
by Yapyuco especially since – as it turned out after the search of the vehicle – they had no firearms with them,
and hence, they had nothing to be scared of.58 It observed that while Salangsang and Flores had been bona fide
residents of Barangay Quebiawan, then it would be impossible for Pamintuan, barangay captain no less, not to
have known them and the location of their houses which were not far from the scene of the incident; so much so
that the presence of the victims and of the Tamaraw jeepney in Salangsang’s house that evening could not have
possibly escaped his notice. In this regard, it noted that Pamintuan’s Sworn Statement dated April 11, 1988 did
not sufficiently explain his suspicions as to the identities of the victims as well as his apparent certainty on the
identity and whereabouts of the subject Tamaraw jeepney. 59 It surmised how the defense, especially Yapyuco in
his testimony, could have failed to explain why a large group of armed men – which allegedly included Cafgu
members from neighboring barangays – were assembled at the house of Naron that night, and how petitioners
were able to identify the Tamaraw jeepney to be the target vehicle. From this, it inferred that petitioners had
already known that their suspect vehicle would be coming from the direction of Salangsang’s house – such
knowledge is supposedly evident first, in the manner by which they advantageously positioned themselves at the
scene to afford a direct line of fire at the target vehicle, and second, in the fact that the house of Naron, the
neighboring houses and the electric post referred to by prosecution witnesses were deliberately not lit that
night.60
The Sandiganbayan also drew information from Flores’ sketch depicting the position of the Tamaraw jeepney
and the assailants on the road, and concluded that judging by the bullet holes on the right side of the jeepney
and by the declarations of Dr. Solis respecting the trajectory of the bullets that hit Villanueva and Licup, the
assailants were inside the yard of Naron’s residence and the shots were fired at the jeepney while it was slowly
moving past them. It also gave weight to the testimony and the report of Dabor telling that the service firearms
of petitioners had been tested and found to be positive of gunpowder residue, therefore indicating that they had
indeed been discharged.61
The Sandiganbayan summed up what it found to be overwhelming circumstantial evidence pointing to the
culpability of petitioners: the nature and location of the bullet holes on the jeepney and the gunshot wounds on
the victims, as well as the trajectory of the bullets that caused such damage and injuries; particularly, the
number, location and trajectory of the bullets that hit the front passenger side of the jeepney; the strategic
placement of the accused on the right side of the street and inside the front yard of Naron’s house; the
deliberate shutting off of the lights in the nearby houses and the lamp post; and the positive ballistic findings on
the firearms of petitioners. 62
This evidentiary resumé, according to the Sandiganbayan, not only fortified petitioners’ admission that they did
discharge their firearms, but also provided a predicate to its conclusion that petitioners conspired with one
another to achieve a common purpose, design and objective to harm the unarmed and innocent victims. Thus,
since there was no conclusive proof of who among the several accused had actually fired the gunshots that
injured Villanueva and fatally wounded Licup, the Sandiganbayan imposed collective responsibility on all those
who were shown to have discharged their firearms that night – petitioners herein.63 Interestingly, it was
speculated that the manner by which the accused collectively and individually acted prior or subsequent to or
contemporaneously with the shooting indicated that they were either drunk or that some, if not all of them, had
a grudge against the employees of San Miguel Corporation;64 and that on the basis of the self-serving evidence
adduced by the defense, there could possibly have been a massive cover-up of the incident by Philippine
Constabulary and INP authorities in Pampanga as well as by the NAPOLCOM.65 It likewise found very
consequential the fact that the other accused had chosen not to take the witness stand; this, supposedly
because it was incumbent upon them to individually explain their participation in the shooting in view of the
weight of the prosecution evidence, their invocation of the justifying circumstance of lawful performance of
official duty and the declaration of some of them in their affidavits to the effect that they had been deployed
that evening in the front yard of Naron’s residence from which the volley of gunfire was discharged as admitted
by Yapyuco himself.66
As to the nature of the offenses committed, the Sandiganbayan found that the qualifying circumstance of
treachery has not been proved because first, it was supposedly not shown how the aggression commenced and
how the acts causing injury to Villanueva and fatally injuring Licup began and developed, and second, this
circumstance must be supported by proof of a deliberate and conscious adoption of the mode of attack and
cannot be drawn from mere suppositions or from circumstances immediately preceding the aggression. The
same finding holds true for evident premeditation because between the time Yapyuco received the summons for
assistance from Pamintuan through David and the time he and his men responded at the scene, there was found
to be no sufficient time to allow for the materialization of all the elements of that circumstance. 67
Finally as to damages, Villanueva had testified that his injury required leave from work for 60 days which were all
charged against his accumulated leave credits;68 that he was earning ₱8,350.00 monthly;69 and that he had spent
₱35,000.00 for the repair of his Tamaraw jeepney.70 Also, Teodoro Licup had stated that his family had spent
₱18,000.00 for the funeral of his son, ₱28,000.00 during the wake, ₱11,000.00 for the funeral plot and
₱20,000.00 in attorney’s fees for the prosecution of these cases.71 He also submitted a certification from San
Miguel Corporation reflecting the income of his deceased son. 72 On these bases, the Sandiganbayan ordered
petitioners, jointly and severally, to indemnify (a) Villanueva ₱51,700.00 as actual and compensatory damages
and ₱120,000.00 as moral/exemplary damages, plus the proportionate costs of the action, and (b) the heirs of
deceased Licup in the amount of ₱77,000.00 as actual damages and ₱600,000.00 as moral/exemplary damages,
plus the proportionate costs of the action.
Petitioners’ motion for reconsideration was denied; hence, the present recourse.
In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayan’s finding of conspiracy and labels the same to be
conjectural. He points out that the court a quo has not clearly established that he had by positive acts intended
to participate in any criminal object in common with the other accused, and that his participation in a supposed
common criminal object has not been proved beyond reasonable doubt. He believes the finding is belied by
Flores and Villanueva, who saw him at the scene only after the shooting incident when the wounded passengers
were taken to the hospital on his jeepney.73 He also points out the uncertainty in the Sandiganbayan’s
declaration that the incident could not have been the product of a well-planned police operation, but rather was
the result of either a hidden agenda concocted against the victims by the barangay officials involved or an
amateurish attempt on their part to earn commendation. He theorizes that, if it were the latter alternative, then
he could hardly be found guilty of homicide or frustrated homicide but rather of reckless imprudence resulting in
homicide and frustrated homicide. 74He laments that, assuming arguendo that the injuries sustained by the
victims were caused by his warning shots, he must nevertheless be exonerated because he responded to the
scene of the incident as a bona fide member of the police force and, hence, his presence at the scene of the
incident was in line with the fulfillment of his duty as he was in fact in the lawful performance thereof – a fact
which has been affirmed by the NAPOLCOM en banc when it dismissed on appeal the complaint for gross
misconduct against him, Cunanan and Puno.75 He also invokes the concept of mistake of fact and attributes to
Pamintuan the responsibility why he, as well as the other accused in these cases, had entertained the belief that
the suspects were armed rebel elements.76
In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim that the Sandiganbayan has not
proved their guilt beyond reasonable doubt, and the assailed decision was based on acts the evidence for which
has been adduced at a separate trial but erroneously attributed to them. They explain that there were two sets
of accused, in the case: one, the police officers comprised of Yapyuco, Cunanan and Puno and, two, the barangay
officials and CHDFs comprised of David, Lugtu, Lacson, Yu and themselves who had waived the presentation of
evidence. They question their conviction of the charges vis-a-vis the acquittal of David, Lugtu, Lacson and Yu
who, like them, were barangay officials and had waived their right to present evidence in their behalf. They
emphasize in this regard that all accused barangay officials and CHDFs did not participate in the presentation of
the evidence by the accused police officers and, hence, the finding that they too had fired upon the Tamaraw
jeepney is hardly based on an established fact.77 Also, they believe that the findings of fact by the Sandiganbayan
were based on inadmissible evidence, specifically on evidence rejected by the court itself and those presented in
a separate trial. They label the assailed decision to be speculative, conjectural and suspicious and, hence,
antithetical to the quantum of evidence required in a criminal prosecution.78 Finally, they lament that the finding
of conspiracy has no basis in evidence and that the prosecution has not even shown that they were with the
other accused at the scene of the incident or that they were among those who fired at the victims, and neither
were they identified as among the perpetrators of the crime.79
In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy. They claim that judging by the
uncertainty in the conclusion of the Sandiganbayan as to whether the incident was the result of a legitimate
police operation or a careless plot designed by the accused to obtain commendation, conspiracy has not been
proved beyond reasonable doubt. This, because they believe the prosecution has not, as far as both of them are
concerned, shown that they had ever been part of such malicious design to commit an ambuscade as that
alluded to in the assailed decision. They advance that as police officers, they merely followed orders from their
commander, Yapyuco, but were not privy to the conversation among the latter, David and Pamintuan, moments
before the shooting. They posit they could hardly be assumed to have had community of criminal design with the
rest of the accused.80 They affirm Yapyuco’s statement that they fired warning shots at the subject jeepney,81 but
only after it had passed the place where they were posted and only after it failed to stop when flagged down as
it then became apparent that it was going to speed away – as supposedly shown by bullet holes on the chassis
and not on the rear portion of the jeepney. They also harp on the absence of proof of ill motives that would have
otherwise urged them to commit the crimes charged, especially since none of the victims had been personally or
even remotely known to either of them. That they were not intending to commit a crime is, they believe, shown
by the fact that they did not directly aim their rifles at the passengers of the jeepney and that in fact, they
immediately held their fire when Flores identified themselves as employees of San Miguel Corporation. They
conceded that if killing was their intent, then they could have easily fired at the victims directly.82
Commenting on these petitions, the Office of the Special Prosecutor stands by the finding of conspiracy as
established by the fact that all accused, some of them armed, had assembled themselves and awaited the
suspect vehicle as though having previously known that it would be coming from Salangsang’s residence. It
posits that the manner by which the jeepney was fired upon demonstrates a community of purpose and design
to commit the crimes charged.83 It believes that criminal intent is discernible from the posts the accused had
chosen to take on the road that would give them a direct line of fire at the target – as shown by the trajectories
of the bullets that hit the Tamaraw jeepney.84 This intent was supposedly realized when after the volley of
gunfire, both Flores and Licup were wounded and the latter died as a supervening consequence. 85 It refutes the
invocation of lawful performance of duty, mainly because there was no factual basis to support the belief of the
accused that the occupants were members of the NPA, as indeed they have not shown that they had previously
verified the whereabouts of the suspect vehicle. But while it recognizes that the accused had merely responded
to the call of duty when summoned by Pamintuan through David, it is convinced that they had exceeded the
performance thereof when they fired upon the Tamaraw jeepney occupied, as it turned out, by innocent
individuals instead.86
As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence adduced before the
Sandiganbayan as well the findings based thereon should not be binding on them, the OSP explains that said
petitioners, together with Pamintuan, David, Lugtu, Lacson and Yu, had previously withdrawn their motion for
separate trial and as directed later on submitted the case for decision as to them with the filing of their
memorandum. It asserts there was no denial of due process to said petitioners in view of their agreement for the
reproduction of the evidence on the motion for bail at the trial proper as well as by their manifestation to forego
with the presentation of their own evidence. The right to present witnesses is waivable. Also, where an accused
is jointly tried and testifies in court, the testimony binds the other accused, especially where the latter has failed
to register his objection thereto.87
The decision on review apparently is laden with conclusions and inferences that seem to rest on loose
predicates. Yet we have pored over the records of the case and found that evidence nonetheless exists to
support the penultimate finding of guilt beyond reasonable doubt.
I.
It is as much undisputed as it is borne by the records that petitioners were at the situs of the incident on the date
and time alleged in the Informations. Yapyuco, in his testimony – which was adopted by Cunanan and Puno – as
well as Manguerra, Mario Reyes and Andres Reyes in their affidavits which had been offered in evidence by the
prosecution,88 explained that their presence at the scene was in response to the information relayed by
Pamintuan through David that armed rebel elements on board a vehicle described to be that occupied by the
victims were reportedly spotted in Barangay Quebiawan. It is on the basis of this suspicion that petitioners now
appeal to justification under Article 11 (5) of the Revised Penal Code and under the concept of mistake of fact.
Petitioners admit that it was not by accident or mistake but by deliberation that the shooting transpired when it
became apparent that the suspect vehicle was attempting to flee, yet contention arises as to whether or not
there was intention to harm or even kill the passengers aboard, and who among them had discharged the bullets
that caused the eventual death of Licup and injured Villanueva.
The first duty of the prosecution is not to present the crime but to identify the criminal.89 To this end, the
prosecution in these cases offered in evidence the joint counter-affidavit90 of Andres Reyes and Manguerra; the
counter-affidavit91 of Mario Reyes; the joint counter-affidavit92 of Cunanan and Puno; the counter-affidavit93 of
Yapyuco; and the joint counter-affidavit94 of Yapyuco, Cunanan and Puno executed immediately after the
incident in question. In brief, Cunanan and Puno stated therein that "[their] team was forced to fire at the said
vehicle" when it accelerated after warning shots were fired in air and when it ignored Yapyuco’s signal for it to
stop;95 in their earlier affidavit they, together with Yapyuco, declared that they were "constrained x x x to fire
directly to (sic) the said fleeing vehicle."96Yapyuco’s open court declaration, which was adopted by Cunanan and
Puno, is that he twice discharged his firearm: first, to give warning to the subject jeepney after it allegedly failed
to stop when flagged down and second, at the tires thereof when it came clear that it was trying to escape. 97 He
suggested – substantiating the implication in his affidavit that it was "the whole team [which fired] at the fleeing
vehicle" 98 – that the bullets which hit the passenger side of the ill-fated jeepney could have come only from the
CHDFs posted inside the yard of Naron where Manguerra, Mario Reyes and Andres Reyes admitted having taken
post while awaiting the arrival of the suspect vehicle.99
Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only Manguerra from their group
who discharged a firearm but only into the air to give warning shots,100 and that it was the "policemen [who]
directly fired upon" the jeepney.101 Manguerra himself shared this statement.102 Yet these accounts do not sit
well with the physical evidence found in the bullet holes on the passenger door of the jeepney which Dabor, in
both her report and testimony, described to have come from bullets sprayed from perpendicular and oblique
directions. This evidence in fact supports Yapyuco’s claim that he, Cunanan and Puno did fire directly at the
jeepney after it had made a right turn and had already moved past them such that the line of fire to the
passengers thereof would be at an oblique angle from behind. It also bolsters his claim that, almost
simultaneously, gunshots came bursting after the jeepney has passed the spot where he, Cunanan and Puno had
taken post, and when the vehicle was already right in front of the yard of Naron’s house sitting on the right side
of the road after the curve and where Manguerra, Mario Reyes and Andres Reyes were positioned, such that the
line of fire would be direct and perpendicular to it.103
While Dabor’s ballistics findings are open to challenge for being inconclusive as to who among the accused
actually discharged their firearms that night, her report pertaining to the examination of the ill-fated Tamaraw
jeepney affirms the irreducible fact that the CHDFs posted within the yard of Naron’s house had indeed sprayed
bullets at the said vehicle. Manguerra, Mario Reyes and Andres Reyes seek to insulate themselves by arguing
that such finding cannot be applied to them as it is evidence adduced in a separate trial. But as the OSP noted,
they may not evade the effect of their having withdrawn their motion for separate trial, their agreement to a
joint trial of the cases, and the binding effect on them of the testimony of their co-accused, Yapyuco.104
Indeed, the extrajudicial confession or admission of one accused is admissible only against said accused, but is
inadmissible against the other accused. But if the declarant or admitter repeats in court his extrajudicial
admission, as Yapyuco did in this case, during the trial and the other accused is accorded the opportunity to
cross-examine the admitter, the admission is admissible against both accused because then, it is transposed into
a judicial admission.105 It is thus perplexing why, despite the extrajudicial statements of Cunanan, Puno and
Yapyuco, as well as the latter’s testimony implicating them in the incident, they still had chosen to waive their
right to present evidence when, in fact, they could have shown detailed proof of their participation or non-
participation in the offenses charged. We, therefore, reject their claim that they had been denied due process in
this regard, as they opted not to testify and be cross-examined by the prosecution as to the truthfulness in their
affidavits and, accordingly, disprove the inculpatory admissions of their co-accused.
II.
The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a right or office under
Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused acted in the performance of his duty
or in the lawful exercise of his right or office, and (b) the injury caused or the offense committed is the necessary
consequence of the due performance of such duty or the lawful exercise of such right or office. 106 The
justification is based on the complete absence of intent and negligence on the part of the accused, inasmuch as
guilt of a felony connotes that it was committed with criminal intent or with fault or negligence.107 Where
invoked, this ground for non-liability amounts to an acknowledgment that the accused has caused the injury or
has committed the offense charged for which, however, he may not be penalized because the resulting injury or
offense is a necessary consequence of the due performance of his duty or the lawful exercise of his right or
office. Thus, it must be shown that the acts of the accused relative to the crime charged were indeed lawfully or
duly performed; the burden necessarily shifts on him to prove such hypothesis.
We find that the requisites for justification under Article 11 (5) of the Revised Penal Code do not obtain in this
case.
The undisputed presence of all the accused at the situs of the incident is a legitimate law enforcement operation.
No objection is strong enough to defeat the claim that all of them – who were either police and barangay officers
or CHDF members tasked with the maintenance of peace and order – were bound to, as they did, respond to
information of a suspected rebel infiltration in the locality. Theirs, therefore, is the specific duty to identify the
occupants of their suspect vehicle and search for firearms inside it to validate the information they had received;
they may even effect a bloodless arrest should they find cause to believe that their suspects had just committed,
were committing or were bound to commit a crime. While, it may certainly be argued that rebellion is a
continuing offense, it is interesting that nothing in the evidence suggests that the accused were acting under an
official order to open fire at or kill the suspects under any and all circumstances. Even more telling is the absence
of reference to the victims having launched such aggression as would threaten the safety of any one of the
accused, or having exhibited such defiance of authority that would have instigated the accused, particularly
those armed, to embark on a violent attack with their firearms in self-defense. In fact, no material evidence was
presented at the trial to show that the accused were placed in real mortal danger in the presence of the victims,
except maybe their bare suspicion that the suspects were armed and were probably prepared to conduct
hostilities.
But whether or not the passengers of the subject jeepney were NPA members and whether or not they were at
the time armed, are immaterial in the present inquiry inasmuch as they do not stand as accused in the
prosecution at hand. Besides, even assuming that they were as the accused believed them to be, the actuations
of these responding law enforcers must inevitably be ranged against reasonable expectations that arise in the
legitimate course of performance of policing duties. The rules of engagement, of which every law enforcer must
be thoroughly knowledgeable and for which he must always exercise the highest caution, do not require that he
should immediately draw or fire his weapon if the person to be accosted does not heed his call. Pursuit without
danger should be his next move, and not vengeance for personal feelings or a damaged pride. Police work
requires nothing more than the lawful apprehension of suspects, since the completion of the process pertains to
other government officers or agencies.108
A law enforcer in the performance of duty is justified in using such force as is reasonably necessary to secure and
detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect
himself from bodily harm.109 United States v. Campo110 has laid down the rule that in the performance of his
duty, an agent of the authorities is not authorized to use force, except in an extreme case when he is attacked or
is the subject of resistance, and finds no other means to comply with his duty or cause himself to be respected
and obeyed by the offender. In case injury or death results from the exercise of such force, the same could be
justified in inflicting the injury or causing the death of the offender if the officer had used necessary force.111 He
is, however, never justified in using unnecessary force or in treating the offender with wanton violence, or in
resorting to dangerous means when the arrest could be effected otherwise.112 People v. Ulep113 teaches that –
The right to kill an offender is not absolute, and may be used only as a last resort, and under circumstances
indicating that the offender cannot otherwise be taken without bloodshed. The law does not clothe police
officers with authority to arbitrarily judge the necessity to kill. It may be true that police officers sometimes find
themselves in a dilemma when pressured by a situation where an immediate and decisive, but legal, action is
needed. However, it must be stressed that the judgment and discretion of police officers in the performance of
their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence
of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion,
and within the spirit and purpose of the law. We cannot countenance trigger-happy law enforcement officers
who indiscriminately employ force and violence upon the persons they are apprehending. They must always bear
in mind that although they are dealing with criminal elements against whom society must be protected, these
criminals are also human beings with human rights.114
Thus, in People v. Tabag,115 where members of the Davao CHDF had killed four members of a family in their
home because of suspicions that they were NPA members, and the accused sought exoneration by invoking
among others the justifying circumstance in Article 11 (5) of the Revised Penal Code, the Court in dismissing the
claim and holding them liable for murder said, thus:
In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the Revised Penal Code, for
the massacre of the Magdasals can by no means be considered as done in the fulfillment of a duty or in the
lawful exercise of an office or in obedience to an order issued by a superior for some lawful purpose. Other than
"suspicion," there is no evidence that Welbino Magdasal, Sr., his wife Wendelyn, and their children were
members of the NPA. And even if they were members of the NPA, they were entitled to due process of law. On
that fateful night, they were peacefully resting in their humble home expecting for the dawn of another
uncertain day. Clearly, therefore, nothing justified the sudden and unprovoked attack, at nighttime, on the
Magdasals. The massacre was nothing but a merciless vigilante-style execution.116
Petitioners rationalize their election to aim their fire directly at the jeepney by claiming that it failed to heed the
first round of warning shots as well as the signal for it to stop and instead tried to flee. While it is possible that
the jeepney had been flagged down but because it was pacing the dark road with its headlights dimmed missed
petitioners’ signal to stop, and compound to it the admitted fact that the passengers thereof were drunk from
the party they had just been to,117 still, we find incomprehensible petitioners’ quick resolve to use their firearms
when in fact there was at least one other vehicle at the scene – the Sarao jeepney owned by Yapyuco – which
they could actually have used to pursue their suspects whom they supposedly perceived to be in flight.
Lawlessness is to be dealt with according to the law. Only absolute necessity justifies the use of force, and it is
incumbent on herein petitioners to prove such necessity. We find, however, that petitioners failed in that
respect. Although the employment of powerful firearms does not necessarily connote unnecessary force,
petitioners in this case do not seem to have been confronted with the rational necessity to open fire at the
moving jeepney occupied by the victims. No explanation is offered why they, in that instant, were inclined for a
violent attack at their suspects except perhaps their over-anxiety or impatience or simply their careless
disposition to take no chances. Clearly, they exceeded the fulfillment of police duties the moment they
actualized such resolve, thereby inflicting Licup with a mortal bullet wound, causing injury to Villanueva and
exposing the rest of the passengers of the jeepney to grave danger to life and limb – all of which could not have
been the necessary consequence of the fulfillment of their duties.
III.
At this juncture, we find that the invocation of the concept of mistake of fact faces certain failure. In the context
of criminal law, a "mistake of fact" is a misapprehension of a fact which, if true, would have justified the act or
omission which is the subject of the prosecution.118 Generally, a reasonable mistake of fact is a defense to a
charge of crime where it negates the intent component of the crime.119 It may be a defense even if the offense
charged requires proof of only general intent.120 The inquiry is into the mistaken belief of the defendant,121 and it
does not look at all to the belief or state of mind of any other person.122 A proper invocation of this defense
requires (a) that the mistake be honest and reasonable;123 (b) that it be a matter of fact;124 and (c) that it negate
the culpability required to commit the crime125 or the existence of the mental state which the statute prescribes
with respect to an element of the offense.126
The leading authority in mistake of fact as ground for non-liability is found in United States v. Ah Chong,127 but in
that setting, the principle was treated as a function of self-defense where the physical circumstances of the case
had mentally manifested to the accused an aggression which it was his instinct to repel. There, the accused,
fearful of bad elements, was woken by the sound of his bedroom door being broken open and, receiving no
response from the intruder after having demanded identification, believed that a robber had broken in. He
threatened to kill the intruder but at that moment he was struck by a chair which he had placed against the door
and, perceiving that he was under attack, seized a knife and fatally stabbed the intruder who turned out to be his
roommate. Charged with homicide, he was acquitted because of his honest mistake of fact. Finding that the
accused had no evil intent to commit the charge, the Court explained:
x x x The maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed
offense, a sufficient excuse").
Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act
committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal
liability, provided always there is no fault or negligence on his part and as laid down by Baron Parke, "The guilt of
the accused must depend on the circumstances as they appear to him." x x x
If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will
justify a killing — or, in terms more nicely in accord with the principles on which the rule is founded, if without
fault or carelessness he does not believe them — he is legally guiltless of homicide; though he mistook the facts,
and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the
right of self-defense and the not quite harmonious authorities, it is the doctrine of reason, and sufficiently
sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes
self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is
misled concerning them, and defends himself correctly according to what he thus supposes the facts to be, the
law will not punish him though they are in truth otherwise, and he has really no occasion for the extreme
measure. x x x 128
Besides, as held in People v. Oanis129 and Baxinela v. People,130 the justification of an act, which is otherwise
criminal on the basis of a mistake of fact, must preclude negligence or bad faith on the part of the
accused.131 Thus, Ah Chong further explained that –
The question then squarely presents itself, whether in this jurisdiction one can be held criminally responsible
who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if
the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if
the actor had known the true state of the facts at the time when he committed the act. To this question we think
there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided
always that the alleged ignorance or mistake of fact was not due to negligence or bad faith.132
IV.
This brings us to whether the guilt of petitioners for homicide and frustrated homicide has been established
beyond cavil of doubt. The precept in all criminal cases is that the prosecution is bound by the invariable
requisite of establishing the guilt of the accused beyond reasonable doubt. The prosecution must rely on the
strength of its own evidence and not on the evidence of the accused. The weakness of the defense of the
accused does not relieve the prosecution of its responsibility of proving guilt beyond reasonable doubt.133 By
reasonable doubt is meant that doubt engendered by an investigation of the whole proof and an inability, after
such investigation, to let the mind rest easy upon the certainty of guilt. 134 The overriding consideration is not
whether the court doubts the innocence of the accused, but whether it entertains reasonable doubt as to his
guilt.135
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by
circumstantial or presumptive evidence.136 Corpus delicti consists of two things: first, the criminal act and
second, defendant's agency in the commission of the act.137 In homicide (by dolo) as well as in murder cases, the
prosecution must prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the
criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c)
that defendant committed the criminal act or was in some way criminally responsible for the act which produced
the death. In other words, proof of homicide or murder requires incontrovertible evidence, direct or
circumstantial, that the victim was deliberately killed (with malice), that is, with intent to kill. Such evidence may
consist in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the
victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim.
If the victim dies because of a deliberate act of the malefactors, intent to kill is conclusively presumed.138 In such
case, even if there is no intent to kill, the crime is homicide because with respect to crimes of personal violence,
the penal law looks particularly to the material results following the unlawful act and holds the aggressor
responsible for all the consequences thereof. 139 Evidence of intent to kill is crucial only to a finding of frustrated
and attempted homicide, as the same is an essential element of these offenses, and thus must be proved with
the same degree of certainty as that required of the other elements of said offenses.140
The records disclose no ill motives attributed to petitioners by the prosecution. It is interesting that, in negating
the allegation that they had by their acts intended to kill the occupants of the jeepney, petitioners turn to their
co-accused Pamintuan, whose picture depicted in the defense evidence is certainly an ugly one: petitioners’
affidavits as well as Yapyuco’s testimony are replete with suggestions that it was Pamintuan alone who harbored
the motive to ambush the suspects as it was he who their (petitioners’) minds that which they later on conceded
to be a mistaken belief as to the identity of the suspects. Cinco, for one, stated in court that Pamintuan had once
reported to him that Flores, a relative of his (Pamintuan), was frequently meeting with NPA members and that
the San Miguel Corporation plant where the victims were employed was being penetrated by NPA members. He
also affirmed Yapyuco’s claim that there had been a number of ambuscades launched against members of law
enforcement in Quebiawan and in the neighboring areas supposedly by NPA members at around the time of the
incident. But as the Sandiganbayan pointed out, it is unfortunate that Pamintuan had died during the pendency
of these cases even before his opportunity to testify in court emerged.141
Yet whether such claims suffice to demonstrate ill motives evades relevance and materiality. Motive is generally
held to be immaterial inasmuch as it is not an element of a crime. It gains significance when the commission of a
crime is established by evidence purely circumstantial or otherwise inconclusive.142 The question of motive is
important in cases where there is doubt as to whether the defendant is or is not the person who committed the
act, but when there is no doubt that the defendant was the one who caused the death of the deceased, it is not
so important to know the reason for the deed.143
In the instant case, petitioners, without abandoning their claim that they did not intend to kill anyone of the
victims, admit having willfully discharged their service firearms; and the manner by which the bullets
concentrated on the passenger side of the jeepney permits no other conclusion than that the shots were
intended for the persons lying along the line of fire. We do not doubt that instances abound where the discharge
of a firearm at another is not in itself sufficient to sustain a finding of intention to kill, and that there are
instances where the attendant circumstances conclusively establish that the discharge was not in fact animated
by intent to kill. Yet the rule is that in ascertaining the intention with which a specific act is committed, it is
always proper and necessary to look not merely to the act itself but to all the attendant circumstances so far as
they develop in the evidence.144
The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30 caliber carbine.145 While
the use of these weapons does not always amount to unnecessary force, they are nevertheless inherently lethal
in nature. At the level the bullets were fired and hit the jeepney, it is not difficult to imagine the possibility of the
passengers thereof being hit and even killed. It must be stressed that the subject jeepney was fired upon while it
was pacing the road and at that moment, it is not as much too difficult to aim and target the tires thereof as it is
to imagine the peril to which its passengers would be exposed even assuming that the gunfire was aimed at the
tires – especially considering that petitioners do not appear to be mere rookie law enforcers or unskilled
neophytes in encounters with lawless elements in the streets.
Thus, judging by the location of the bullet holes on the subject jeepney and the firearms employed, the
likelihood of the passenger next to the driver – and in fact even the driver himself – of being hit and injured or
even killed is great to say the least, certain to be precise. This, we find to be consistent with the uniform claim of
petitioners that the impulse to fire directly at the jeepney came when it occurred to them that it was proceeding
to evade their authority. And in instances like this, their natural and logical impulse was to debilitate the vehicle
by firing upon the tires thereof, or to debilitate the driver and hence put the vehicle to a halt. The evidence we
found on the jeepney suggests that petitioners’ actuations leaned towards the latter.
This demonstrates the clear intent of petitioners to bring forth death on Licup who was seated on the passenger
side and to Villanueva who was occupying the wheel, together with all the consequences arising from their deed.
The circumstances of the shooting breed no other inference than that the firing was deliberate and not
attributable to sheer accident or mere lack of skill. Thus, Cupps v. State146 tells that:
This rule that every person is presumed to contemplate the ordinary and natural consequences of his own acts,
is applied even in capital cases. Because men generally act deliberately and by the determination of their own
will, and not from the impulse of blind passion, the law presumes that every man always thus acts, until the
contrary appears. Therefore, when one man is found to have killed another, if the circumstances of the homicide
do not of themselves show that it was not intended, but was accidental, it is presumed that the death of the
deceased was designed by the slayer; and the burden of proof is on him to show that it was otherwise.
V.
Verily, the shooting incident subject of these petitions was actualized with the deliberate intent of killing Licup
and Villanueva, hence we dismiss Yapyuco’s alternative claim in G.R. No. 120744 that he and his co-petitioners
must be found guilty merely of reckless imprudence resulting in homicide and frustrated homicide. Here is why:
First, the crimes committed in these cases are not merely criminal negligence, the killing being intentional and
not accidental. In criminal negligence, the injury caused to another should be unintentional, it being the incident
of another act performed without malice.147 People v. Guillen148 and People v. Nanquil 149 declare that a
deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence. And in
People v. Castillo,150 we held that that there can be no frustrated homicide through reckless negligence inasmuch
as reckless negligence implies lack of intent to kill, and without intent to kill the crime of frustrated homicide
cannot exist.
Second, that petitioners by their acts exhibited conspiracy, as correctly found by the Sandiganbayan, likewise
militates against their claim of reckless imprudence.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit
a felony and decide to commit it. Conspiracy need not be proven by direct evidence. It may be inferred from the
conduct of the accused before, during and after the commission of the crime, showing that they had acted with a
common purpose and design. Conspiracy may be implied if it is proved that two or more persons aimed by their
acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts,
though apparently independent of each other were, in fact, connected and cooperative, indicating a closeness of
personal association and a concurrence of sentiment. Conspiracy once found, continues until the object of it has
been accomplished and unless abandoned or broken up. To hold an accused guilty as a co-principal by reason of
conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity.
There must be intentional participation in the transaction with a view to the furtherance of the common design
and purpose.151
Conspiracy to exist does not require an agreement for an appreciable period prior to the
occurrence.1a\^/phi1 From the legal viewpoint, conspiracy exists if, at the time of the commission of the
offense, the accused had the same purpose and were united in its execution.152 The instant case requires no
proof of any previous agreement among petitioners that they were really bent on a violent attack upon their
suspects. While it is far-fetched to conclude that conspiracy arose from the moment petitioners, or all of the
accused for that matter, had converged and strategically posted themselves at the place appointed by
Pamintuan, we nevertheless find that petitioners had been ignited by the common impulse not to let their
suspect jeepney flee and evade their authority when it suddenly occurred to them that the vehicle was
attempting to escape as it supposedly accelerated despite the signal for it to stop and submit to them. As
aforesaid, at that point, petitioners were confronted with the convenient yet irrational option to take no chances
by preventing the jeepney’s supposed escape even if it meant killing the driver thereof. It appears that such was
their common purpose. And by their concerted action of almost simultaneously opening fire at the jeepney from
the posts they had deliberately taken around the immediate environment of the suspects, conveniently affording
an opportunity to target the driver, they did achieve their object as shown by the concentration of bullet entries
on the passenger side of the jeepney at angular and perpendicular trajectories. Indeed, there is no definitive
proof that tells which of all the accused had discharged their weapons that night and which directly caused the
injuries sustained by Villanueva and fatally wounded Licup, yet we adopt the Sandiganbayan’s conclusion that
since only herein petitioners were shown to have been in possession of their service firearms that night and had
fired the same, they should be held collectively responsible for the consequences of the subject law enforcement
operation which had gone terribly wrong.153
WHEREFORE, the instant petitions are DENIED. The joint decision of the Sandiganbayan in Criminal Case Nos.
16612, 16613 and 16614, dated June 27, 1995, are hereby AFFIRMED with the following MODIFICATIONS:
(a) In Criminal Case No. 16612, petitioners are sentenced to suffer the indeterminate penalty of six (6)
years and one (1) day of prision mayor, as the minimum, to twelve (12) years and one (1) day of
reclusion temporal, as the maximum; in Criminal Case No. 16614, the indeterminate sentence is hereby
modified to Two (2) years and four (4) months of prision correccional, as the maximum, and Six (6)
months of arresto mayor, as the minimum.
(b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of Leodevince Licup in the
amount of ₱77,000.00 as actual damages, ₱50,000.00 in moral damages, as well as Noel Villanueva, in
the amount of ₱51,700.00 as actual and compensatory damages, and ₱20,000.00 as moral damages.

VI.
SO ORDERED.

The Sandiganbayan correctly found that petitioners are guilty as co-principals in the crimes of homicide and
DIOSDADO M. PERALTA*
attempted homicide only, respectively for the death of Licup and for the non-fatal injuries sustained by
Associate Justice
Villanueva, and that they deserve an acquittal together with the other accused, of the charge of attempted
murder with respect to the unharmed victims.154 The allegation of evident premeditation has not been proved
beyond reasonable doubt because the evidence is consistent with the fact that the urge to kill had materialized
in the minds of petitioners as instantaneously as they perceived their suspects to be attempting flight and
evading arrest. The same is true with treachery, inasmuch as there is no clear and indubitable proof that the
mode of attack was consciously and deliberately adopted by petitioners.

Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion temporal whereas an attempt
thereof, under Article 250 in relation to Article 51, warrants a penalty lower by two degrees than that prescribed
for principals in a consummated homicide. Petitioners in these cases are entitled to the ordinary mitigating
circumstance of voluntary surrender, and there being no aggravating circumstance proved and applying the
Indeterminate Sentence Law, the Sandiganbayan has properly fixed in Criminal Case No. 16612 the range of the
penalty from six (6) years and one (1) day, but should have denominated the same as prision mayor, not prision
correccional, to twelve (12) years and one (1) day of reclusion temporal.

However, upon the finding that petitioners in Criminal Case No. 16614 had committed attempted homicide, a
modification of the penalty is in order. The penalty of attempted homicide is two (2) degrees lower to that of a
consummated homicide, which is prision correccional. Taking into account the mitigating circumstance of
voluntary surrender, the maximum of the indeterminate sentence to be meted out on petitioners is within the
minimum period of prision correccional, which is six (6) months and one (1) day to two (2) years and four (4)
months of prision correccional, whereas the minimum of the sentence, which under the Indeterminate Sentence
Law must be within the range of the penalty next lower to that prescribed for the offense, which is one (1)
month and one (1) day to six (6) months of arresto mayor.

We likewise modify the award of damages in these cases, in accordance with prevailing jurisprudence, and order
herein petitioners, jointly and severally, to indemnify the heirs of Leodevince Licup in the amount of ₱77,000.00
as actual damages and ₱50,000.00 in moral damages. With respect to Noel Villanueva, petitioners are likewise
bound to pay, jointly and severally, the amount of ₱51,700.00 as actual and compensatory damages and
₱20,000.00 as moral damages. The award of exemplary damages should be deleted, there being no aggravating
circumstance that attended the commission of the crimes.
 Republic of the Philippines
SUPREME COURT
FIRST DIVISION
G.R. No. 148431 July 28, 2005
SPO2 RUPERTO CABANLIG, Petitioners,
vs.
SANDIGANBAYAN and OFFICE OF THE SPECIAL PROSECUTOR, Respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 seeks to reverse the Decision2 of the Fifth Division of the Sandiganbayan dated 11 May
1999 and Resolution3 dated 2 May 2001 affirming the conviction of SPO2 Ruperto Cabanlig ("Cabanlig") in
Criminal Case No. 19436 for homicide. The Sandiganbayan sentenced Cabanlig to suffer the indeterminate
penalty of four months of arresto mayor as minimum to two years and four months of prision correctional as
maximum and to pay ₱50,000 to the heirs of Jimmy Valino ("Valino"). Cabanlig shot Valino after Valino grabbed
the M16 Armalite of another policeman and tried to escape from the custody of the police. The Sandiganbayan
acquitted Cabanlig’s co-accused, SPO1 Carlos Padilla ("Padilla"), PO2 Meinhart Abesamis ("Abesamis"), SPO2
Lucio Mercado ("Mercado") and SPO1 Rady Esteban ("Esteban").
The Charge
Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder in an amended information that
reads as follows:
That on or about September 28, 1992, in the Municipality of Penaranda, Province of Nueva Ecija, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, SPO[2] Ruperto C. Cabanlig, SPO1
Carlos E. Padilla, PO2 Meinhart C. Abesamis, SPO2 Lucio L. Mercado and SPO1 Rady S. Esteban, all public officers
being members of the Philippine National Police, conspiring and confederating and mutually helping one
another, with intent to kill, with treachery and evident premeditation, taking advantage of nighttime and
uninhabited place to facilitate the execution of the crime, with use of firearms and without justifiable cause, did
then and there, wilfully, unlawfully and feloniously attack, assault and shoot one Jimmy Valino, hitting him
several times at the vital parts of his body, thereby inflicting upon the latter, serious and mortal wounds which
were the direct and immediate cause of his death, which crime was committed by the accused in relation to their
office as members of the Philippine National Police of Penaranda, Nueva Ecija, the deceased, who was then
detained for robbery and under the custody of the accused, having been killed while being taken to the place
where he allegedly concealed the effects of the crime, to the damage and prejudice of the heirs of said victim, in
such amount as may be awarded under the provisions of the New Civil Code.
CONTRARY TO LAW.4
Arraignment and Plea
On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis, Mercado and Esteban pleaded
not guilty.
Version of the Prosecution
On 24 September 1992 a robbery occurred in the Municipality of Penaranda, Nueva Ecija. Four days later or on
28 September 1992, the investigating authorities apprehended three suspects: Jordan Magat ("Magat"), Randy
Reyes ("Reyes") and Valino. The police recovered most of the stolen items. However, a flower vase and a small
radio were still missing. Cabanlig asked the three suspects where these two items were. Reyes replied that the
items were at his house.
Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to accompany him in retrieving the
flower vase and radio. Cabanlig then brought out Reyes and Magat from their cell, intending to bring the two
during the retrieval operation. It was at this point that Valino informed Cabanlig that he had moved the vase and
radio to another location without the knowledge of his two cohorts. Cabanlig decided instead to bring along
Valino, leaving behind Magat and Reyes.
Around 6:30 p.m., five fully armed policemen in uniform – Cabanlig, Padilla, Mercado, Abesamis and Esteban –
escorted Valino to Barangay Sinasahan, Nueva Ecija to recover the missing flower vase and radio. The policemen
and Valino were aboard a police vehicle, an Isuzu pick-up jeep. The jeep was built like an ordinary jeepney. The
rear end of the jeep had no enclosure. A metal covering separated the driver’s compartment and main body of
the jeep. There was no opening or door between the two compartments of the jeep. Inside the main body of the
jeep, were two long benches, each of which was located at the left and right side of the jeep.
Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the jeep. Esteban was right
behind Abesamis at the left bench. Valino, who was not handcuffed, was between Cabanlig and Mercado at the
right bench. Valino was seated at Cabanlig’s left and at Mercado’s right. Mercado was seated nearest to the
opening of the rear of the jeep.
Just after the jeep had crossed the Philippine National Railway bridge and while the jeep was slowly negotiating a
bumpy and potholed road, Valino suddenly grabbed Mercado’s M16 Armalite and jumped out of the jeep. Valino
was able to grab Mercado’s M16 Armalite when Mercado scratched his head and tried to reach his back because
some flying insects were pestering Mercado. Mercado shouted "hoy!" when Valino suddenly took the M16
Armalite. Cabanlig, who was then facing the rear of the vehicle, saw Valino’s act of taking away the M16
Armalite. Cabanlig acted immediately. Without issuing any warning of any sort, and with still one foot on the
running board, Cabanlig fired one shot at Valino, and after two to three seconds, Cabanlig fired four more
successive shots. Valino did not fire any shot.
The shooting happened around 7:00 p.m., at dusk or "nag-aagaw ang dilim at liwanag." Cabanlig approached
Valino’s body to check its pulse. Finding none, Cabanlig declared Valino dead. Valino sustained three mortal
wounds – one at the back of the head, one at the left side of the chest, and one at the left lower back. Padilla
and Esteban remained with the body. The other three policemen, including Cabanlig, went to a funeral parlor.
The following morning, 29 September 1992, a certain SPO4 Segismundo Lacanilao ("Lacanilao") of the
Cabanatuan Police went to Barangay Sinasahan, Nueva Ecija to investigate a case. Lacanilao met Mercado who
gave him instructions on how to settle the case that he was handling. During their conversation, Mercado related
that he and his fellow policemen "salvaged" (summarily executed) a person the night before. Lacanilao asked
who was "salvaged." Mercado answered that it was "Jimmy Valino." Mercado then asked Lacanilao why he was
interested in the identity of the person who was "salvaged." Lacanilao then answered that "Jimmy Valino" was
his cousin. Mercado immediately turned around and left.
Version of the Defense
Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting as an act of self-defense and
performance of duty. Mercado denied that he told Lacanilao that he and his co-accused "salvaged" Valino.
Cabanlig, Mercado, Abesamis, Padilla, and Esteban denied that they conspired to kill Valino.
The Sandiganbayan’s Ruling
The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as the court found no evidence that the
policemen conspired to kill or summarily execute Valino. Since Cabanlig admitted shooting Valino, the burden is
on Cabanlig to establish the presence of any circumstance that would relieve him of responsibility or mitigate the
offense committed.
The Sandiganbayan held that Cabanlig could not invoke self-defense or defense of a stranger. The only defense
that Cabanlig could properly invoke in this case is fulfillment of duty. Cabanlig, however, failed to show that the
shooting of Valino was the necessary consequence of the due performance of duty. The Sandiganbayan pointed
out that while it was the duty of the policemen to stop the escaping detainee, Cabanlig exceeded the proper
bounds of performing this duty when he shot Valino without warning.
The Sandiganbayan found no circumstance that would qualify the crime to murder. Thus, the Sandiganbayan
convicted Cabanlig only of homicide. The dispositive portion of the decision reads:
WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA, MEINHART CRUZ ABESAMIS, LUCIO
LADIGNON MERCADO and RADY SALAZAR ESTEBAN are hereby ACQUITTED of the crime charged. Accused
RUPERTO CONCEPCION CABANLIG is found GUILTY beyond reasonable doubt of the crime of Homicide and is
hereby sentenced to suffer the indeterminate sentence of FOUR (4) MONTHS of arresto mayor, as minimum, to
TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum. He is further ordered to pay the
heirs of Jimmy Valino the amount of FIFTY THOUSAND (₱50,000.00) PESOS, and the costs.
SO ORDERED.5
On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. ("Associate Justice Badoy") dissented
from the decision. Associate Justice Badoy pointed out that there was imminent danger on the lives of the
policemen when Valino grabbed the "infallible Armalite"6 from Mercado and jumped out from the rear of the
jeep. At a distance of only three feet from Cabanlig, Valino could have sprayed the policemen with bullets. The
firing of a warning shot from Cabanlig was no longer necessary. Associate Justice Badoy thus argued for
Cabanlig’s acquittal.
In a vote of four to one, the Sandiganbayan affirmed the decision.7 The dispositive portion of the Resolution
reads:
WHEREFORE, for lack of merit, the motion for reconsideration is hereby DENIED.8
The Issues
Cabanlig raises the following issues in his Memorandum:
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF FULFILLMENT OF DUTY PUT UP BY
CABANLIG WAS INCOMPLETE
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG COULD NOT INVOKE SELF-
DEFENSE/DEFENSE OF STRANGER TO JUSTIFY HIS ACTIONS
WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO SUFFER IMPRISONMENT AND IN
ORDERING HIM TO PAY THE AMOUNT OF ₱ 50,000 TO THE HEIRS OF VALINO 9
The Court’s Ruling
The petition has merit. We rule for Cabanlig’s acquittal.
Applicable Defense is Fulfillment of Duty
We first pass upon the issue of whether Cabanlig can invoke two or more justifying circumstances. While there is
nothing in the law that prevents an accused from invoking the justifying circumstances or defenses in his favor, it
is still up to the court to determine which justifying circumstance is applicable to the circumstances of a
particular case.
Self-defense and fulfillment of duty operate on different principles.10 Self-defense is based on the principle of
self-preservation from mortal harm, while fulfillment of duty is premised on the due performance of duty. The
difference between the two justifying circumstances is clear, as the requisites of self-defense and fulfillment of
duty are different.
The elements of self-defense are as follows:
a) Unlawful Aggression;
b) Reasonable necessity of the means employed to prevent or repel it;
c) Lack of sufficient provocation on the part of the person defending himself.11
On the other hand, the requisites of fulfillment of duty are:
1. The accused acted in the performance of a duty or in the lawful exercise of a right or office;
2. The injury caused or the offense committed be the necessary consequence of the due performance of duty or
the lawful exercise of such right or office.12
A policeman in the performance of duty is justified in using such force as is reasonably necessary to secure and
detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect
himself from bodily harm.13 In case injury or death results from the policeman’s exercise of such force, the
policeman could be justified in inflicting the injury or causing the death of the offender if the policeman had used
necessary force. Since a policeman’s duty requires him to overcome the offender, the force exerted by the
policeman may therefore differ from that which ordinarily may be offered in self-defense.14 However, a
policeman is never justified in using unnecessary force or in treating the offender with wanton violence, or in
resorting to dangerous means when the arrest could be affected otherwise.15
Unlike in self-defense where unlawful aggression is an element, in performance of duty, unlawful aggression
from the victim is not a requisite. In People v. Delima,16 a policeman was looking for a fugitive who had several
days earlier escaped from prison. When the policeman found the fugitive, the fugitive was armed with a pointed
piece of bamboo in the shape of a lance. The policeman demanded the surrender of the fugitive. The fugitive
lunged at the policeman with his bamboo lance. The policeman dodged the lance and fired his revolver at the
fugitive. The policeman missed. The fugitive ran away still holding the bamboo lance. The policeman pursued the
fugitive and again fired his revolver, hitting and killing the fugitive. The Court acquitted the policeman on the
ground that the killing was done in the fulfillment of duty.
The fugitive’s unlawful aggression in People v. Delima had already ceased when the policeman killed him. The
fugitive was running away from the policeman when he was shot. If the policeman were a private person, not in
the performance of duty, there would be no self-defense because there would be no unlawful aggression on the
part of the deceased.17 It may even appear that the public officer acting in the fulfillment of duty is the
aggressor, but his aggression is not unlawful, it being necessary to fulfill his duty.18
While self-defense and performance of duty are two distinct justifying circumstances, self-defense or defense of
a stranger may still be relevant even if the proper justifying circumstance in a given case is fulfillment of duty. For
example, a policeman’s use of what appears to be excessive force could be justified if there was imminent
danger to the policeman’s life or to that of a stranger. If the policeman used force to protect his life or that of a
stranger, then the defense of fulfillment of duty would be complete, the second requisite being present.
In People v. Lagata,19 a jail guard shot to death a prisoner whom he thought was attempting to escape. The
Court convicted the jail guard of homicide because the facts showed that the prisoner was not at all trying to
escape. The Court declared that the jail guard could only fire at the prisoner in self-defense or if absolutely
necessary to avoid the prisoner’s escape.
In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the performance of duty as policemen
when they escorted Valino, an arrested robber, to retrieve some stolen items. We uphold the finding of the
Sandiganbayan that there is no evidence that the policemen conspired to kill or summarily execute Valino. In
fact, it was not Valino who was supposed to go with the policemen in the retrieval operations but his two other
cohorts, Magat and Reyes. Had the policemen staged the escape to justify the killing of Valino, the M16 Armalite
taken by Valino would not have been loaded with bullets.20 Moreover, the alleged summary execution of Valino
must be based on evidence and not on hearsay.
Undoubtedly, the policemen were in the legitimate performance of their duty when Cabanlig shot Valino. Thus,
fulfillment of duty is the justifying circumstance that is applicable to this case. To determine if this defense is
complete, we have to examine if Cabanlig used necessary force to prevent Valino from escaping and in
protecting himself and his co-accused policemen from imminent danger.
Fulfillment of Duty was Complete, Killing was Justified
The Sandiganbayan convicted Cabanlig because his defense of fulfillment of duty was found to be incomplete.
The Sandiganbayan believed that Cabanlig "exceeded the fulfillment of his duty when he immediately shot
Valino without issuing a warning so that the latter would stop."21
We disagree with the Sandiganbayan.
Certainly, an M16 Armalite is a far more powerful and deadly weapon than the bamboo lance that the fugitive
had run away with in People v. Delima. The policeman in People v. Delima was held to have been justified in
shooting to death the escaping fugitive because the policeman was merely performing his duty.
In this case, Valino was committing an offense in the presence of the policemen when Valino grabbed the M16
Armalite from Mercado and jumped from the jeep to escape. The policemen would have been justified in
shooting Valino if the use of force was absolutely necessary to prevent his escape.22 But Valino was not only an
escaping detainee. Valino had also stolen the M16 Armalite of a policeman. The policemen had the duty not only
to recapture Valino but also to recover the loose firearm. By grabbing Mercado’s M16 Armalite, which is a
formidable firearm, Valino had placed the lives of the policemen in grave danger.
Had Cabanlig failed to shoot Valino immediately, the policemen would have been sitting ducks. All of the
policemen were still inside the jeep when Valino suddenly grabbed the M16 Armalite. Cabanlig, Mercado and
Esteban were hemmed in inside the main body of the jeep, in the direct line of fire had Valino used the M16
Armalite. There would have been no way for Cabanlig, Mercado and Esteban to secure their safety, as there
were no doors on the sides of the jeep. The only way out of the jeep was from its rear from which Valino had
jumped. Abesamis and Padilla who were in the driver’s compartment were not aware that Valino had grabbed
Mercado’s M16 Armalite. Abesamis and Padilla would have been unprepared for Valino’s attack.
By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Valino certainly did not intend
merely to escape and run away as far and fast as possible from the policemen. Valino did not have to grab the
M16 Armalite if his sole intention was only to flee from the policemen. If he had no intention to engage the
policemen in a firefight, Valino could simply have jumped from the jeep without grabbing the M16 Armalite.
Valino’s chances of escaping unhurt would have been far better had he not grabbed the M16 Armalite which
only provoked the policemen to recapture him and recover the M16 Armalite with greater vigor. Valino’s act of
grabbing the M16 Armalite clearly showed a hostile intention and even constituted unlawful aggression.
Facing imminent danger, the policemen had to act swiftly. Time was of the essence. It would have been
foolhardy for the policemen to assume that Valino grabbed the M16 Armalite merely as a souvenir of a
successful escape. As we have pointed out in Pomoy v. People23:
Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend his
possession of the weapon when the victim suddenly tried to remove it from his holster. As an enforcer of the
law, petitioner was duty-bound to prevent the snatching of his service weapon by anyone, especially by a At any rate, Valino was amply warned. Mercado shouted "hoy" when Valino grabbed the M16 Armalite.
detained person in his custody. Such weapon was likely to be used to facilitate escape and to kill or maim Although Cabanlig admitted that he did not hear Mercado shout "hoy", Mercado’s shout should have served as a
persons in the vicinity, including petitioner himself. warning to Valino. The verbal warning need not come from Cabanlig himself.

The Sandiganbayan, however, ruled that despite Valino’s possession of a deadly firearm, Cabanlig had no right to
shoot Valino without giving Valino the opportunity to surrender. The Sandiganbayan pointed out that under the
General Rules of Engagement, the use of force should be applied only as a last resort when all other peaceful and
non-violent means have been exhausted. The Sandiganbayan held that only such necessary and reasonable force
should be applied as would be sufficient to conduct self-defense of a stranger, to subdue the clear and imminent
danger posed, or to overcome resistance put up by an offender.
The Sandiganbayan had very good reasons in steadfastly adhering to the policy that a law enforcer must first
issue a warning before he could use force against an offender. A law enforcer’s overzealous performance of his
duty could violate the rights of a citizen and worse cost the citizen’s life. We have always maintained that the
judgment and discretion of public officers, in the performance of their duties, must be exercised neither
capriciously nor oppressively, but within the limits of the law.24 The issuance of a warning before a law enforcer
could use force would prevent unnecessary bloodshed. Thus, whenever possible, a law enforcer should employ
force only as a last resort and only after issuing a warning.
The records also show that Cabanlig first fired one shot. After a few seconds, Cabanlig fired four more shots.
Cabanlig had to shoot Valino because Valino at one point was facing the police officers. The exigency of the
situation warranted a quick response from the policemen.
According to the Sandiganbayan, Valino was not turning around to shoot because two of the three gunshot
wounds were on Valino’s back. Indeed, two of the three gunshot wounds were on Valino’s back: one at the back
of the head and the other at the left lower back. The Sandiganbayan, however, overlooked the location of the
third gunshot wound. It was three inches below the left clavicle or on the left top most part of the chest area
based on the Medico Legal Sketch showing the entrances and exits of the three gunshot wounds. 33
The Autopsy Report34 confirms the location of the gunshot wounds, as follows:
GUNSHOT WOUNDS – modified by embalming.

1. ENTRANCE – ovaloid, 1.6 x 1.5 cms; with area of tattooing around the entrance, 4.0 x 3.0 cms.; located at the
However, the duty to issue a warning is not absolutely mandated at all times and at all cost, to the detriment of
right postauricular region, 5.5 cms. behind and 1.5 cms. above the right external auditory meatus, directed
the life of law enforcers. The directive to issue a warning contemplates a situation where several options are still
forward downward fracturing the occipital bone, lacerating the right occipital portion of the brain and fracturing
available to the law enforcers. In exceptional circumstances such as this case, where the threat to the life of a
the right cheek bone and making an EXIT wound, 1.5 x 2.0 cms. located on right cheek, 4.0 cms. below and 3.0
law enforcer is already imminent, and there is no other option but to use force to subdue the offender, the law
cms.. in front of right external auditory meatus.
enforcer’s failure to issue a warning is excusable.

2. ENTRANCE – ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5 cms. from the anterior median line, 136.5
In this case, the embattled policemen did not have the luxury of time. Neither did they have much choice.
cms. from the left heel directed backward, downward and to the right, involving soft tissues, fracturing the 3rd
Cabanlig’s shooting of Valino was an immediate and spontaneous reaction to imminent danger. The weapon
rib, left, lacerating the left upper lobe and the right lower lobe and finally making an EXIT wound at the back,
grabbed by Valino was not just any firearm. It was an M16 Armalite.
right side, 1.4 x 0.8 cms., 19.0 cms. from the posterior median line and 132.0 cms. from the right heel and grazing
the medial aspect of the right arm.
The M16 Armalite is an assault rifle adopted by the United Sates ("US") Army as a standard weapon in 1967
during the Vietnam War.25 The M16 Armalite is still a general-issue rifle with the US Armed Forces and US law
3. ENTRANCE – ovaloid, 0.6 x 0.5 located at the back, left side, 9.0 cms. from the posterior median line; 119.5
enforcement agencies.26 The M16 Armalite has both semiautomatic and automatic capabilities.27 It is 39 inches
cms. from the left heel; directed forward, downward involving the soft tissues, lacerating the liver; and bullet
long, has a 30-round magazine and fires high-velocity .223-inch (5.56-mm) bullets.28 The M16 Armalite is most
was recovered on the right anterior chest wall, 9.0 cms. form the anterior median line, 112.0 cms. from the right
effective at a range of 200 meters29 but its maximum effective range could extend as far as 400 meters.30 As a
heel.
high velocity firearm, the M16 Armalite could be fired at close range rapidly or with much volume of fire.31 These
features make the M16 Armalite and its variants well suited for urban and jungle warfare.32
The Necropsy Report35 also reveals the following:
The M16 Armalite whether on automatic or semiautomatic setting is a lethal weapon. This high-powered firearm
was in the hands of an escaping detainee, who had sprung a surprise on his police escorts bottled inside the jeep. 1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left side of the back of the head. The left
A warning from the policemen would have been pointless and would have cost them their lives. parietal bone is fractured. The left temporal bone is also fractured. A wound of exit measuring 2 cms X 3 cms in
size is located at the left temporal aspect of the head.
For what is the purpose of a warning? A warning is issued when policemen have to identify themselves as such
and to give opportunity to an offender to surrender. A warning in this case was dispensable. Valino knew that he 2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the chest about three inches below
was in the custody of policemen. Valino was also very well aware that even the mere act of escaping could injure the left clavicle. The wound is directed medially and made an exit wound at the right axilla measuring 2 X 2 cms
or kill him. The policemen were fully armed and they could use force to recapture him. By grabbing the M16 in size.
Armalite of his police escort, Valino assumed the consequences of his brazen and determined act. Surrendering
was clearly far from Valino’s mind.
3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower back above the left lumbar. The left
lung is collapsed and the liver is lacerated. Particles of lead [were] recovered in the liver tissues. No wound of
exit.

Cause of Death:

Cerebral Hemorrhage Secondary To Gunshot Wound In The Head

The doctors who testified on the Autopsy36 and Necropsy37 Reports admitted that they could not determine
which of the three gunshot wounds was first inflicted. However, we cannot disregard the significance of the
gunshot wound on Valino’s chest. Valino could not have been hit on the chest if he were not at one point facing
the policemen.

If the first shot were on the back of Valino’s head, Valino would have immediately fallen to the ground as the
bullet from Cabanlig’s M16 Armalite almost shattered Valino’s skull. It would have been impossible for Valino to
still turn and face the policemen in such a way that Cabanlig could still shoot Valino on the chest if the first shot
was on the back of Valino’s head.

The most probable and logical scenario: Valino was somewhat facing the policemen when he was shot, hence,
the entry wound on Valino’s chest. On being hit, Valino could have turned to his left almost falling, when two
more bullets felled Valino. The two bullets then hit Valino on his lower left back and on the left side of the back
of his head, in what sequence, we could not speculate on. At the very least, the gunshot wound on Valino’s chest
should have raised doubt in Cabanlig’s favor.

Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis, Mercado and Esteban are guilty only
of gross negligence. The policemen transported Valino, an arrested robber, to a retrieval operation without
handcuffing Valino. That no handcuffs were available in the police precinct is a very flimsy excuse. The policemen
should have tightly bound Valino’s hands with rope or some other sturdy material. Valino’s cooperative
demeanor should not have lulled the policemen to complacency. As it turned out, Valino was merely keeping up
the appearance of good behavior as a prelude to a planned escape. We therefore recommend the filing of an
administrative case against Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross negligence.

WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal Case No. 19436 convicting accused
RUPERTO CONCEPCION CABANLIG of the crime of homicide. We ACQUIT RUPERTO CONCEPCIONCABANLIG of
the crime of homicide and ORDER his immediate release from prison, unless there are other lawful grounds to
hold him. We DIRECT the Director of Prisons to report to this Court compliance within five (5) days from receipt
of this Decision. No costs.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 103501-03 February 17, 1997
LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 103507 February 17, 1997
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million
was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused — he being
ADOLFO M. PERALTA, petitioner,
charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760
vs.
respectively read:
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF
THE SPECIAL PROSECUTOR, respondents.
FRANCISCO, J.:
Through their separate petitions for review,1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for
short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as the Resolution dated December
20. 19913denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code.
Tabuena and Peralta were found guilty beyond reasonable doubt Of having malversed the total amount of P55
Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager
and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to
twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE
MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila
International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office,
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum,
and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE
MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila
International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each
sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day
of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum
and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the
amount malversed. They shall also reimburse jointly and severally the Manila International
Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification from public
office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA,
has remained at large.
That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the
City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A.
Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and
Assistant General Manager, respectively, of the Manila International Airport Authority
(MIAA), and accountable for public funds belonging to the MIAA, they being the only ones
authorized to make withdrawals against the cash accounts of MIAA pursuant to its board
resolutions, conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA
funds by applying for the issuance of a manager's check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in
the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as
partial payment to the Philippine National Construction Corporation (PNCC), the mechanics
of which said accused Tabuena would personally take care of, when both accused well knew
that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of
the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their
personal use and benefit, to the damage and prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the
City of Pasay. Philippines and within the jurisdiction of this Honorable Court, accused Luis A.
 Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and
Assistant General Manager, respectively, of the Manila International Airport Authority
(MIAA), and accountable for public funds belonging to the MIAA, they being the only ones
authorized to make withdrawals against the cash accounts of MIAA pursuant to its board
resolutions, conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA
funds by applying for the issuance of a manager.s check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in
the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as
partial payment to the Philippine National Construction Corporation (PNCC), the mechanics
of which said accused Tabuena would personally take care of, when both accused well knew
that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of
the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their
personal use and benefit, to the damage and prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.
xxx xxx xxx
Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in cash
what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, "Yes,
sir, I will do it." About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of
Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum)
reiterating in black and white such verbal instruction, to wit:
Office of the President
of the Philippines
Malacanang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash
as partial payment of MIAA's account with said Company mentioned in a Memorandum of
Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this
Office on February 4, 1985.

Your immediate compliance is appreciated.

That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the
City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A.
Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and (Sgd.)
Acting Manager, Financial Services Department, respectively, of the Manila International FERDINAND
Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they MARCOS.4
being the only ones authorized to make withdrawals against the cash accounts of MIAA
pursuant to its board resolutions, conspiring, confederating and confabulating with each The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to
other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the in the MARCOS Memorandum, reads in full:
government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00)
from MIAA funds by applying for the issuance of a manager's check for said amount in the MEMORANDUM
name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-
354-3 in the PNB Extension Office at the Manila International Airport in Pasay City,
purportedly as partial payment to the Philippine National Construction Corporation (PNCC), For: The President
the mechanics of which said accused Tabuena would personally take care of, when both
accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and From: Minister Roberto V. Ongpin
after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena
encashed the same and thereafter both accused misappropriated and converted the Date: 7 January 1985
proceeds thereof to their personal use and benefit, to the damage and prejudice of the
government in the aforesaid amount.
Subject: Approval of Supplemental Contracts and
Request for Partial Deferment of Repayment of
CONTRARY TO LAW. PNCC's Advances for MIA Development Project

Gathered from the documentary and testimonial evidence are the following essential antecedents: May I request your approval of the attached recommendations of Minister Jesus S. Hipolito
for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP)
between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation
(PNCC), formerly CDCP, as follows:
1. Supplemental Contract No. 12
Package Contract No. 2 P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2 4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2 233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2 8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2 6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II 16,617,655.49
(xerox copies only; original memo was submitted to the Office of the
President on May 28, 1984)
In this connection, please be informed that Philippine National Construction Corporation
(PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project
aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In
accordance with contract provisions, outstanding advances totalling P93.9 million are to be
deducted from said billings which will leave a net amount due to PNCC of only P4.5 million.
At the same time, PNCC has potential escalation claims amounting to P99 million in the
following stages of approval/evaluation:
— Approved by Price Escalation Committee
(PEC) but pended for lack of funds P1.9 million
— Endorsed by project consultants and
currently being evaluated by PEC 30.7 million
— Submitted by PNCC directly to PEC
and currently under evaluation 66.5 million
——————
Total P99.1 million
There has been no funding allocation for any of the above escalation claims due to budgetary
constraints.
The MIA Project has been completed and operational as far back as 1982 and yet residual
amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to
additional cost of money to service its obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending escalation
billings, may we request for His Excellency's approval for a deferment of the repayment of
PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in
escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP
consultants but could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA
Project funds. This amount represents the excess of the gross billings of PNCC of P98.4
million over the undeferred portion of the repayment of advances of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN
Minister5
In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao and
Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by
Tabuena and Dabao requesting the PNB extension office at the MIAA — the depository branch of MIAA funds, to
issue a manager's check for said amount payable to Tabuena. The check was encashed, however, at the PNB
Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena
took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a
PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting
Malacanang. Mrs. Gimenez did not issue any receipt for the money received
Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made
on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's co-signatory
to the letter- request for a manager's check for this amount. Peralta accompanied Tabuena to the PNB Villamor
branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed
in two (2) peerless boxes which were loaded in the trunk of Tabuena's car. Peralta did not go with Tabuena to
deliver the money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that Mrs.
Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986,
reads:
 Malacanang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS
(P55,000,000.00) as of the following dates:
Jan. 10 — P 25,000,000.00
Jan. 16 — 25,000,000.00
Jan. 30 — 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the ordinary"
and "not based on the normal procedure". Not only were there no vouchers prepared to support the
disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented.
Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even
affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of
1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of
the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that
they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which
ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of
MIAA's obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC.
Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him
(Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction,
Tabuena and Peralta now set forth a total of ten (10) errors6 committed by the Sandiganbayan for this Court's
consideration. It appears, however, that at the core of their plea that we acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional
malversation, as the amended informations commonly allege that:
. . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriated the
amount of . . . .
But it would appear that they were convicted of malversation by negligence. In this connection, the
Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena's and
Peralta's motion for reconsideration) wherein the Sandiganbayan said:
xxx xxx xxx
On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million
to people who were not entitled thereto, either as representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or
abandonment, some other person to take such public funds. Having done so, Tabuena, by his
own narration, has categorically demonstrated that he is guilty of the misappropriation or
malversation of P55 Million of public funds. (Emphasis supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:
1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at
the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the
amended informations charged them with intentional malversation.7
3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the
accusation.8
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v.
Sandiganbayan" 9where the Court passed upon similar protestations raised by therein accused-petitioner Cabello
whose conviction for the same crime of malversation was affirmed, in this wise:
. . . even on the putative assumption that the evidence against petitioner yielded a case of
malversation by negligence but the information was for intentional malversation, under the
circumstances of this case his conviction under the first mode of misappropriation would still
be in order. Malversation is committed either intentionally or by negligence. The dolo or
the culpa present in the offense is only a modality in the perpetration of the felony. Even if
the mode charged differs from the mode proved, the same offense of malversation is
involved and conviction thereof is proper. . . .
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or
intentional falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon
vs. Justice of the Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a distinct crime in our
Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a
conviction for the former can be had under an information exclusively charging the
commission of a willful offense, upon the theory that the greater includes the lesser offense.
This is the situation that obtains in the present case. Appellant was charged with willful
 falsification but from the evidence submitted by the parties, the Court of Appeals found that
in effecting the falsification which made possible the cashing of the checks in question,
appellant did not act with criminal intent but merely failed to take proper and adequate
means to assure himself of the identity of the real claimants as an ordinary prudent man
would do. In other words, the information alleges acts which charge willful falsification but
which turned out to be not willful but negligent. This is a case covered by the rule when there
is a variance between the allegation and proof, and is similar to some of the cases decided by
this Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential
elements of the offense charged in the information be proved, it being sufficient that some
of said essential elements or ingredients thereof be established to constitute the crime
proved. . . .
The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the evidence
submitted by appellant himself and the result has proven beneficial to him. Certainly, having
alleged that the falsification has been willful, it would be incongruous to allege at the same
time that it was committed with imprudence for a charge of criminal intent is incompatible
with the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and
arguments also apply to the felony of malversation, that is, that an accused charged with
willful malversation, in an information containing allegations similar to those involved in the
present case, can be validly convicted of the same offense of malversation through
negligence where the evidence sustains the latter mode of perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation
for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but
significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to
consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum,
nisi mens sit rea — a crime is not committed if the mind of the person performing the act
complained of is innocent.
The rule was reiterated in "People v. Pacana," 12 although this case involved falsification of public
documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit
reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly
entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or
if there is no wrongful purpose.13 The accused may thus always introduce evidence to show he acted in
good faith and that he had no intention to convert.14 And this, to our mind, Tabuena and Peralta had
meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum we are
swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such
memorandum. From this premise flows the following reasons and/or considerations that would buttress his
innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum
required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive,
and to argue otherwise is something easier said than done. Marcos was undeniably Tabuena's superior — the
former being then the President of the Republic who unquestionably exercised control over government
agencies such as the MIAA and PNCC.15 In other words, Marcos had a say in matters involving inter-government
agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and
the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the
highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor
any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of
"Any person who acts in obedience to an order issued by a superior for some lawful purpose."16 The subordinate-
superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained
in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency
(MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the
observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only
about P34.5 Million. The Sandiganbayan in this connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President
dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the MIAA
Development Project, while at the same time recognizing some of the PNCC's escalation
billings which would result in making payable to PNCC the amount of P34.5 million out of
existing MIAA Project funds.
Thus:
"xxx xxx xxx
To allow PNCC to collect partially its billings, and in consideration of ifs
pending escalation billings, may we request for His Excellency's approval
for a deferment of repayment of PNCC's advances to the extent of P30
million corresponding to about 30% of P99.1 million in escalation claims
 of PNCC, of which P32.6 million has been officially recognized by MIADP
consultants but could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out
of existing MIA Project funds. This amount represents the excess of the
gross billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million."
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to
MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the
stages of evaluation and approval, with only P32.6 million having been officially recognized
by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos' Memo was based) they would only be for a sum of up to P34.5 million. 17
xxx xxx xxx
V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55
million irrelevant, but it was actually baseless.
This is easy to see.
Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit
"2", "2-a"); Exhibit "1", however, speaks of P55 million to be paid to the
PNCC while Exhibit "2" authorized only P34.5 million. The order to
withdraw the amount of P55 million exceeded the approved payment of
P34.5 million by P20.5 million. Min. Ongpin's Memo of January 7, 1985
could not therefore serve as a basis for the President's order to withdraw
P55 million. 18
Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him
criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently
legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the
honest belief that the P55 million was a due and demandable debt and that it was just a portion of a
bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on direct
examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit "7" and "7-a" where it is
indicated the receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on page 2,
marked as Exhibit "7-a", sir, P102,475.392.35
xxx xxx xxx 19
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our billings to
MIA as contract-owner of the project that the Philippine National
Construction Corporation constructed. These are billings for escalation
mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contract-
owner that are supposed to take care of price increases, sir.
xxx xxx xxx 20
ATTY ANDRES
Q When you said these are accounts receivable, do I understand from
you that these are due and demandable?
A Yes, sir. 21
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality,
the subordinate is not liable, for then there would only be a mistake of fact committed in good
faith.22 Such is the ruling in "Nassif v. People"23 the facts of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee of R.J.
Campos, he inserted in the commercial document alleged to have been falsified the word
"sold" by order of his principal. Had he known or suspected that his principal was committing
an improper act of falsification, he would be liable either as a co-principal or as an
accomplice. However, there being no malice on his part, he was exempted from criminal
liability as he was a mere employee following the orders of his principal. 24
Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did not
comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be one's personal advantage but every attempt by one person to dispose of the goods of
made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA) another without right as if they were his own is conversion to his own use." (Terry v. Water
Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106)
b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D.
1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that: — At p. 207,
Words and
There were no vouchers to authorize the disbursements in question. There were no bills to Phrases,
support the disbursement. There were no certifications as to the availability of funds for an Permanent
unquestionably staggering sum of P55 Million. 25 Edition 9A.

c) failure to protest (Sec. 106, P.D. 1445) Conversion is any interference subversive of the right of the owner of personal property to
enjoy and control it. The gist of conversion is the usurpation of the owner 's right of property,
and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks,
But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury
23 p. 883, 885 19 Or. 141)
of time to observe all auditing procedures of disbursement considering the fact that the MARCOS
Memorandum enjoined his "immediate compliance" with the directive that he forward to the
President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape — At page 168, id.
responsibility for such omission. But since he was acting in good faith, his liability should only be
administrative or civil in nature, and not criminal. This follows the decision in "Villacorta v. xxx xxx xxx
People"26 where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes
of malversation after finding that he incurred a shortage in his cash accountability by reason of his The words "convert" and "misappropriate" connote an act of using or disposing of another's
payment in good faith to certain government personnel of their legitimate wages leave allowances, property as if it were one's own. They presuppose that the thing has been devoted to a
etc., held that: purpose or use different from that agreed upon. To appropriate to one's own use includes
not only conversion to one's personal advantage but every attempt to dispose of the
Nor can negligence approximating malice or fraud be attributed to petitioner. If he made property of another without right.
wrong payments, they were in Good faith mainly to government personnel, some of them
working at the provincial auditor's and the provincial treasurer's offices And if those — People vs.
payments ran counter to auditing rules and regulations, they did not amount to a criminal Webber, 57
offense and he should only be held administratively or civilly liable. O.G.
p. 2933, 2937
Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not amount to
criminal appropriation, although they were made with insufficient vouchers or improper evidence. In By placing them at the disposal of private persons without due authorization or legal
fact, the Dissenting Opinion's reference to certain provisions in the revised Manual on Certificate of justification, he became as guilty of malversation as if he had personally taken them and
Settlement and Balances — apparently made to underscore Tabuena's personal accountability, as converted them to his own use.
agency head, for MIAA funds — would all the more support the view that Tabuena is vulnerable to civil
sanctions only Sections 29.2 and 295 expressly and solely speak of "civilly liable," describe the kind of
— People vs.
sanction imposable on a superior officer who performs his duties with "bad faith, malice or gross
Luntao, 50
negligence"' and on a subordinate officer or employee who commits "willful or negligent acts . . . which
O.G.
are contrary to law, morals, public policy and good customs even if he acted under order or instructions
p. 1182,
of his superiors."
1183 28

Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55
Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following
definitions/concepts of "conversion":
"Conversion", as necessary element of offense of embezzlement, being the fraudulent
"appropriation to one's own use' of another's property which does not necessarily mean to
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay
immediately the Philippine National Construction Corporation, thru this office the sum of FIFTY FIVE
MILLION. . .", and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez.
Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez
was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the
President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief
 Executive, exercised supervision and control over government agencies. And the good faith of Tabuena
in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with
the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received
the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of
malversation.
xxx xxx xxx
Not every unauthorized payment of public funds is malversation. There is malversation only
if the public officer who has custody of public funds should appropriate the same, or shall
take or misappropriate or shall consent, or through abandonment or negligence shall permit
any other person to take such public funds. Where the payment of public funds has been
made in good faith, and there is reasonable ground to believe that the public officer to whom
the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there
is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only
civilly but not criminally liable.29
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out
public money for the personal benefit of those then in power, still, no criminal liability can be imputed to
Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS
Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was
established between Tabuena and the real embezzler/s of the P5 Million. In the cases of "US v. Acebedo" 30 and
"Ang v. Sandiganbayan",31 both also involving the crime of malversation, the accused therein were acquitted
after the Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo", therein accused, as
municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after
being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said
amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after
finding that the sums were converted by his secretary Urbina without the knowledge and participation of
Acebedo. The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case, nor did
such conspiracy appear in the case against Urbina. No guilty knowledge of the theft
committed by the secretary was shown on the part of the appellant in this case, nor does it
appear that he in any way participated in the fruits of the crime. If the secretary stole the
money in question without the knowledge or consent of the appellant and without
negligence on his part, then certainly the latter can not be convicted of embezzling the same
money or any part thereof.32
In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into
checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were
subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that
the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another
MWSS collector more senior to him. And we also adopt the Court's observation therein, that:
The petitioner's alleged negligence in allowing the senior collector to convert cash collections
into checks may be proof of poor judgment or too trusting a nature insofar as a superior
officer is concerned but there must be stronger evidence to show fraud, malice, or
other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution
failed to show that the petitioner was privy to the conspirational scheme. Much less is there
any proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter
how sincerely and strongly felt by the MWSS, must be converted into evidence before
conviction beyond reasonable doubt may be imposed. 33
The principles underlying all that has been said above in exculpation of Tabuena equally apply to
Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith
when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55
Million of the MIAA funds.
This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order.
Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case
at bench, the order emanated from the Office of the President and bears the signature of the President himself,
the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the
memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the
urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia.
Besides, the case could not be detached from the realities then prevailing As aptly observed by Mr Justice Cruz in
his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era and that
the Judiciary was independent and fearless. We know it was not: even the Supreme Court at
that time was not free. This is an undeniable fact that we can not just blink away. Insisting on
the contrary would only make our sincerity suspect and even provoke scorn for what can
only be described as our incredible credulity. 34
But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic
constitutional right to due process. "Respect for the Constitution", to borrow once again Mr. Justice Cruz's words,
"is more important than securing a conviction based on a violation of the rights of the accused."35 While going
over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a
defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there
is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled
doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court
to correct such errors as may be found in the judgment appealed from whether they are made the subject of
assignments of error or not. 36
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis
Monera. then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen
(16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the
course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor
Viernes' questions and even more than the combined total of direct and cross-examination questions asked by
the counsels) After the defense opted not to conduct any re-direct examination, the court further asked a total
of ten (10) questions.37 The trend intensified during Tabuena's turn on the witness stand. Questions from the
court after Tabuena's cross-examination totalled sixty-seven (67). 38 This is more than five times Prosecutor
Viernes' questions on cross-examination (14), and more than double the total of direct examination and cross- *PJ GARCHITORENA
examination questions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-
examination questions by Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination, *Q Basically, the letter of Mr. Ongpin is to what effect?
propounded a total of forty-one (41) questions. 39
A The subject matter is approval of the supplementary contract and
But more importantly, we note that the questions of the court were in the nature of cross examinations request for partial deferment of payment for MIA Development Project,
characteristic of confrontation, probing and insinuation. 40 (The insinuating type was best exemplified in one your Honor.
question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts
pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and
*Q It has nothing to do with the implementation of the escalation costs?
italicized for emphasis.)

A The details show that most of the accounts refer to our escalations,
(MONERA)
your Honor.

(As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA
*Q Does that indicate the computation for escalations were already billed
totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were
or you do not have any proof of that
nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the
court questions).
A Our subsidiary ledger was based on billings to MIA and this letter of
Minister Ongpin appears to have confirmed our billings to MIA, your
CROSS-EXAMINATION BY PROS. VIERNES
Honor.

Q You admit that as shown by these Exhibits "7" and "7- a", the items
*AJ AMORES
here represent mostly escalation billings. Were those escalation billings
properly transmitted to MIA authorities?
*Q Were there partial payments made by MIA an these escalation
billings?
A I don't have the documents right now to show that they were
transmitted, but I have a letter by our President, Mr. Olaguer, dated July
6, 1988, following up for payment of the balance of our receivables from A Based on records available as of today, the P102 million was reduced to
MIA, sir. about P56.7 million, if my recollection is correct, your Honor.

*AJ AMORES *PJ GARCHITORENA

*Q This matter of escalation costs, is it not a matter for a conference
between the MIA and the PNCC for the determination as to the correct
amount?
A I agree, your Honor. As far as we are concerned, our billings are what
we deemed are valid receivables And, in fact, we have been following up
for payment.
*Q This determination of the escalation costs was it accepted as the
correct figure by MIA ?
A I don't have any document as to the acceptance by MIA your Honor,
but our company was able to get a document or a letter by Minister
Ongpin to President Marcos, dated January 7, 1985, with a marginal note
or approval by former President Marcos.
*Q Were the payments made before or after February 1986, since Mr.
Olaguer is a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think the
payments were made before the entry of our President, your Honor.
Actually, the payment was in the form of: assignments to State
Investment of about P23 million; and then there was P17.8 million
application against advances made or formerly given; and there were
payments to PNCC of about P2.6 million and there was a payment for
application on withholding and contractual stock of about P1 million; that
summed up to P44.4 million all in all. And you deduct that from the P102
million, the remaining balance would be about P57 million.
*PJ GARCHITORENA *PJ GARCHITORENA

*Q What you are saying is that, for all the payments made on this P102 *Q The question of the Court is, before December 31, 1985, were there
million, only P2 million had been payments in cash ? any liquidations made by MIA against these escalation billings?

A Yes, your Honor. A I have not reviewed the details of the record, your Honor. But the
ledger card indicates that there were collections on page 2 of the Exhibit
*Q The rest had been adjustments of accounts, assignments of accounts, earlier presented. It will indicate that there were collections shown by
or offsetting of accounts? credits indicated on the credit side of the ledger.

A Yes, your Honor. *AJ AMORES

*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but the
balances is as of August 1987.
*Q We are talking now about the P44 million, more or less, by which the
basic account has been reduced. These reductions, whether by
adjustment or assignment or actual delivery of cash, were made after
December 31, 1985?
*Q Your ledger does not indicate the manner of giving credit to the MIA
with respect to the escalation billings. Was the payment in cash or just
credit of some sort before December 31, 1985?
A Before December 31, 1985, the reference of the ledger are official
receipts and I suppose these were payments in cash, your Honor.
*Q Do you know how the manner of this payment in cash was made by
MIA?

WITNESS A I do not know, your Honor.

A Yes, your Honor. *PJ GARCHITORENA

*Q And your records indicate when these adjustments and payments *Q But your records will indicate that?
were made?
A The records will indicate that, your Honor.
A Yes, your Honor.
*Q Except that you were not asked to bring them?
*AJ AMORES
A Yes, your Honor.
*Q You said there were partial payments before of these escalation
billings. Do we get it from you that there was an admission of these *Q At all events, we are talking of settlement or partial liquidation prior
escalation costs as computed by you by MIA, since there was already to December 31, 1985?
partial payments?
A Yes, your Honor.
A Yes, your Honor.
*PJ GARCHITORENA
*Q How were these payments made before February 1986, in case or
check, if there were payments made? *Q Subsequent thereto, we are talking merely of about P44 million?

A The P44 million payments was in the form of assignments, your Honor. A Yes, your Honor, as subsequent settlements.
 *Q After December 31, 1985? Q This letter of Minister Ongpin is dated January 7, 1985, whereas the
entries of escalation billings as appearing in Exhibit "7" are dated June 30,
A Yes, your Honor. 1985, would you still insist that the letter of January 1985 confirms the
escalation billings as of June 1985?
*Q And they have liquidated that, as you described it, by way of
assignments, adjustments, by offsets and by P2 million of cash payment? A The entries started June 30 in the ledger card. And as of December 31,
1985, it stood at P102 million after payments were made as shown on the
credit side of the ledger. I suppose hat the earlier amount, before the
A Yes, your Honor.
payment was made, was bigger and therefore I would venture to say that
the letter of January 7, 1985 contains an amount that is part of the
*AJ AMORES original contract account. What are indicated in the ledger are escalation
billings.
*Q Your standard operating procedure before December 31, 1985 in
connection with or in case of cash payment, was the payment in cash or *PJ GARCHITORENA
check?
*Q We are talking about the letter of Minister Ongpin?
A I would venture to say it was by check, your Honor.
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q Which is the safest way to do it?
*Q As of what date?
A Yes, your Honor.
A The letter is dated January 7, 1985, your Honor.
"PJ GARCHITORENA
PJ GARCHITORENA
*Q And the business way?
Continue.
A Yes, your Honor.
PROS. VIERNES
PJ GARCHITORENA
Q In accordance with this letter marked Exhibit "7" and "7-a", there were
Continue. credits made in favor of MIA in July and November until December 1985.
These were properly credited to the account of MIA?
PROS VIERNES
WITNESS
Q You mentioned earlier about the letter of former Minister Ongpin to
the former President Marcos, did you say that letter concurs with the A Yes, sir.
escalation billings reflected in Exhibits "7" and "7-a"?
Q In 1986. from your records as appearing in Exhibit "7-a", there were no
WITNESS payments made to PNCC by MIA for the months of January to June 1986?

A The Company or the management is of the opinion that this letter, a A Yes, sir.
copy of which we were able to get, is a confirmation of the acceptance of
our billings, sir.
Q And neither was the amount of P22 million remitted to PNCC by MIA?
A Yes, sir. A Per ledger card, there were payments in 1985, prior to December 31,
1985, your Honor.
PROS VIERNES
*Q After December 31, 1985?
That will be all, your Honor.
A There appears also P23 million as credit, that is a form of settlement,
PJ GARCHITORENA your Honor.

Redirect? *Q This is as of September 25?

ATTY ANDRES A Yes, your Honor. There were subsequent settlements P23 million is just
part of the P44 million.
No redirect, your Honor.
*Q And what you are saying is that, PNCC passed the account to State
Investment. In other words, State Investment bought the credit of MIA?
*PJ GARCHITORENA

A Yes, your Honor.

Questions from the Court.

*Q And the amount of credit or receivables sold by PNCC to State

*AJ AMORES
Investment is P23 million?

*Q From your records, for the month of January 1986, there was no
A Yes, your Honor.
payment of this escalation account by MIA?

*Q Is there a payback agreement?

WITNESS

A I have a copy of the assignment to State Investment but I have not yet
A Yes, your Honor. But on page 2 of Exhibit "7" there appears an
reviewed the same, your Honor.
assignment of P23 million, that was on September 25, 1986.

*AJ AMORES
*Q But that is already under the present administration?

*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

A After February 1986, your Honor.

A There is still a balance of receivables from MIA as evidenced by a

*Q But before February, in January 1986, there was no payment
collection letter by our President dated July 6, 1988, your Honor. The
whatsoever by MIA to PNCC?
amount indicated in the letter is P55 million.

A Per record there is none appearing, your Honor.

PJ GARCHITORENA

*PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?

*Q The earliest payment, whether by delivery of cash equivalent or of

ATTY ESTEBAL
adjustment of account, or by assignment, or by offsets, when did these
payments begin?
None, your Honor.
 PJ GARCHITORENA A Yes, your Honor.

Mr. Viernes? *Q Because the third delivery was on January 31st and yet the receipt
was dated January 30?
PROS VIERNES
A Yes, your Honor.
No more, your Honor.
*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?
PJ GARCHITORENA
A January 31st, your Honor.
The witness is excused. Thank you very much Mr. Monera. . . .41
PJ GARCHITORENA
(TABUENA)
Continue.
(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million
pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) PROS VIERNES
dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her office at Aguado Street, who
thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.) Q You did not go to Malacañang on January 30, 1986?

CROSS-EXAMINATION BY PROS. VIERNES A Yes, sir, I did not.

Q The amount of P55 million as covered by the three (3) checks Mr. Q Do you know at whose instance this Exhibit "3" was prepared?
Tabuena, were delivered on how many occasions?
A I asked for it, sir.
A Three times, sir.
Q You asked for it on January 31, 1986 when you made the last delivery?
Q And so, on the first two deliveries, you did not ask for a receipt from
Mrs. Gimenez?
A Yes, sir.

A Yes, sir.
Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?

Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued
A Yes, sir.
by Mrs. Gimenez?

Q This receipt was typewritten in Malacañang stationery. Did you see

A Yes, sir.
who typed this receipt?

*PJ GARCHITORENA
A No, sir. What happened is that, she went to her room and when she
came out she gave me that receipt.
*Q So January 30 is the date of the last delivery?
*PJ GARCHITORENA
A I remember it was on the 31st of January, your Honor What happened
is that, I did not notice the date placed by Mrs. Gimenez.
Q What you are saying is, you do not know who typed that receipt?

Q Are you telling us that this Exhibit "3" was incorrectly dated
WITNESS A Because I know her signature, your Honor. I have been receiving letters
from her also and when she requests for something from me. Her writing
A Yes, your Honor. is familiar to me.

*Q Are you making an assumption that she typed that receipt? So, when the Presiding Justice asked you as to how you knew that this
was the signature of Mrs. Gimenez and you answered that you saw Mrs.
Gimenez signed it, you were not exactly truthful?
A Yes, your Honor, because she knows how to type.

A What I mean is, I did not see her sign because she went to her room
*Q Your assumption is that she typed it herself?
and when she came out, she gave me that receipt, your Honor.

A Yes, your Honor.

PJ GARCHITORENA

PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to
it carefully. Because when I asked you, you said you saw her signed it. Be
Proceed. careful Mr. Tabuena.

PROS. VIERNES WITNESS

Q This receipt was prepared on January 31, although it is dated January Yes, your Honor.
30?
PJ GARCHITORENA
A Yes, sir, because I was there on January 31st.
Continue.
Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?
PROS VIERNES
A In her office at Aguado, sir.
Was there another person inside the office of Mrs. Gimenez when she
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"? gave you this receipt Exhibit "3"?

A No, sir, I did not. She was inside her room. A Nobody, sir.

Q So, she was in her room and when she came out of the room, she Q I noticed in this receipt that the last delivery of the sum of P55 million
handed this receipt to you already typed and signed? was made on January 30. Do we understand from you that this date
January 30 is erroneous?
A Yes, sir.
A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This
*AJ HERMOSISIMA should be January 31st, sir.

*Q So, how did you know this was the signature of Mrs. Gimenez? PROS VIERNES

WITNESS That will be all, your Honor.

PJ GARCHITORENA
Redirect? *Q If it was for the payment of such obligation why was there no voucher
prepared to cover such payment? In other words, why was the delivery of
ATTY. ANDRES the money not covered by any voucher?

No redirect, your Honor. A The instruction to me was to give it to the Office of the President, your
Honor.
*PJ GARCHITORENA
*PJ GARCHITORENA
Questions from the Court.
*Q Be that as it may, why was there no voucher to cover this particular
disbursement?
*AJ HERMOSISIMA

A I was just told to bring it to the Office of the President, your Honor.
*Q Why did you not ask for a receipt on the first and second deliveries?

*AJ DEL ROSARIO

A Because I know that the delivery was not complete yet, your Honor.

*Q Was that normal procedure for you to pay in cash to the Office of the
*PJ GARCHITORENA
President for obligations of the MIAA in payment of its obligation to
another entity?
*Q So you know that the total amount to be delivered was P55 million')
WITNESS
A Yes, your Honor.
A No, your Honor, I was just following the Order to me of the President.
PJ GARCHITORENA
*PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
*Q So the Order was out of the ordinary?
ATTY. ESTEBAL
A Yes, your Honor.
We are adopting the testimony of Mr. Tabuena and we will also present
the accused, your Honor.
*AJ DEL ROSARIO

*AJ DEL ROSARIO

Did you file any written protest with the manner with which such
payment was being ordered?
"Q From whom did you receive the President's memorandum marked
Exhibit "1"? Or more precisely, who handed you this memorandum?
A No, your Honor.

A Mrs. Fe Roa Gimenez, your Honor.

*Q Why not?

Q Did you ask Mrs, Fe Gimenez for what purpose the money was being
A Because with that instruction of the President to me, I followed, your
asked?
Honor.

A The money was in payment for the debt of the MIA Authority to PNCC,
*Q Before receiving this memorandum Exhibit "1", did the former
your Honor.
President Marcos discuss this maitter with you?
A Yes, your Honor. *Q Did you not inquire, if not from the President, at least from Mrs.
Gimenez why this procedure has to be followed instead of the regular
*Q When was that? procedure?

A He called me up earlier, a week before that, that he wants to me pay A No, sir.
what I owe the PNCC directly to his office in cash, your Honor.
*AJ DEL ROSARIO
*PJ GARCHITORENA
*Q Why did you not ask?
*Q By "I OWE ", you mean the MIAA?
A I was just ordered to do this thing, your Honor.
WITNESS
*AJ HERMOSISIMA
A Yes, your Honor.
*Q You said there was an "I OWE YOU"?
*AJ DEL ROSARIO
A Yes, your Honor.
*Q And what did you say in this discussion you had with him?
*Q Where is that "I OWE YOU" now?
A I just said, "Yes, sir, I will do it/"
A All I know is that we owe PNCC the amount of P99.1 million, your
*Q Were you the one who asked for a memorandum to be signed by Honor. MIAA owes PNCC that amount.
him?
*Q Was this payment covered by receipt from the PNCC?
A No, your Honor.
A It was not covered, your Honor.
*Q After receiving that verbal instruction for you to pay MIAA's obligation
with PNCC, did you not on your own accord already prepare the *Q So the obligation of MIAA to PNCC was not, for the record, cancelled
necessary papers and documents for the payment of that obligation? by virtue of that payment?

A He told me verbally in the telephone that the Order for the payment of
that obligation is forthcoming, your Honor. I will receive it.
*Q Is this the first time you received such a memorandum from the
President?
A Based on the order to me by the former President Marcos ordering me
to pay that amount to his office and then the mechanics will come after,
your Honor.
*Q Is the PNCC a private corporation or government entity?

A Yes, your Honor. A I think it is partly government, your Honor.

*Q And was that the last time also that you received such a *PJ GARCHITORENA
memorandum?
*Q That is the former CDCP?
A Yes, your Honor.
A Yes, your Honor.
*AJ HERMOSISIMA A I was ordered by the President, your Honor.

*Q Why were you not made to pay directly, to the PNCC considering that *PJ GARCHITORENA
you are the Manager of MIA at that time and the PNCC is a separate
corporation, not an adjunct of Malacañang? *Q There is no question and it can be a matter of judicial knowledge that
you have been with the MIA for sometime?
WITNESS
A Yes, your Honor.
A I was just basing it from the Order of Malacanang to pay PNCC through
the Office of the President, your Honor. *Q Prior to 1986?

*Q Do you know the President or Chairman of the Board of PNCC? A Yes, your Honor.

A Yes, your Honor. *Q Can you tell us when you became the Manager of MIA?

"Q How was the obligation of MIAA to PNCC incurred. Was it through the A I became Manager of MIA way back, late 1968, your Honor.
President or Chairman of the Board?
*Q Long before the MIA was constituted as an independent authority?
A PNCC was the one that constructed the MIA, your Honor.
A Yes, your Honor.
*Q Was the obligation incurred through the President or Chairman of the
Board or President of the PNCC? In other words, who signed the contract
*PJ GARCHITORENA
between PNCC and MIAA?

*Q And by 1986, you have been running the MIA for 18 years?
A Actually, we inherited this obligation, your Honor. The one who signed
for this was the former Director of BAT which is General Singzon. Then
when the MIA Authority was formed, all the obligations of BAT were WITNESS
transferred to MIAA. So the accountabilities of BAT were transferred to
MIAA and we are the ones that are going to pay, your Honor. A Yes, your Honor.

*Q Why did you agree to pay to Malacañang when your obligation was *Q And prior to your Joining the MIA, did you ever work for the
with the PNCC? government?

A I was ordered by the President to do that, your Honor. A No, your Honor.

*Q You agreed to the order of the President notwithstanding the fact *Q So, is it correct for us to say that your joining the MIA in 1968 as its
that this was not the regular course or Malacañang was not the creditor? Manager was your first employment ,with the government?

A I saw nothing wrong with that because that is coming, from the A Yes, your Honor.
President, your Honor.
*Q While you were Manager of MIA, did you have other subsequent
*Q The amount was not a joke, amounting to P55 million, and you agreed concurrent positions in the government also?
to deliver money in this amount through a mere receipt from the private
secretary?
A I was also the Chairman of the Games and Amusement Board, your
Honor.
*Q But you were not the executive or operating officer of the Games and
Amusement Board?
*Q And you were a commissioner only of the Came Fowl Commission?
A Yes, your Honor.
*Q Who was running the commission at that time?

A I was, your Honor. A I forgot his name, but he retired already, your Honor.

*Q As Chairman you were running the Games and Amusement Board? *Q All of us who joined the government, sooner or later, meet with our
Resident COA representative?
A Yes, your Honor.
A Yes, your Honor.
*Q What else, what other government positions did you occupy that
time? *PJ GARCHITORENA

A I was also Commissioner of the Game Fowl Commission, your Honor. *Q And one of our unfortunate experience (sic) is when the COA
Representative comes to us and says: "Chairman or Manager, this cannot
*PJ GARCHITORENA be". And we learn later on that COA has reasons for its procedure and we
learn to adopt to them?
*Q That is the cockfighting?
WITNESS
WITNESS
A Yes, your Honor.
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient, sometimes
*Q Here, you were just a member of the Board? we consider it foolish, but we know there is reason in this apparent
madness of the COA and so we comply?
A Yes, your Honor.
A Yes, your Honor.
*Q So you were not running the commission?
*Q And more than anything else the COA is ever anxious for proper
documentation and proper supporting papers?
A Yes, your Honor.

A Yes, your Honor.

*Q Any other entity?

*Q Sometimes, regardless of the amount?

A No more, your Honor.

A Yes, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA and
later the MIAA for approximately 18 years, you also ran the Games and
Amusement Board as its executive officer? *Q Now, you have P55 million which you were ordered to deliver in cash,
not to the creditor of the particular credit, and to be delivered in armored
cars to be acknowledged only by a receipt of a personal secretary. After
A Yes, your Honor.
almost 18 years in the government service and having had that much
time in dealing with COA people, did it not occur to you to call a COA
representative and say, "What will I do here?"
A I did not, your Honor.
*PJ GARCHITORENA
*Q Did you not think that at least out of prudence, you should have asked
the COA for some guidance on this matter so that you will do it properly?
WITNESS
A What I was going to do is, after those things I was going to tell that
delivery ordered by the President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or
you and Mr. Peralta signed requests for issuance of Manager's checks and
you were accommodated by the PNB Office at Nichols without any
internal documentation to justify your request for Manager's checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will win
the elections but even then, the Daily Express, which was considered to
be a newspaper friendly to the Marcoses at that time, would occasionally
come with so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would always
come out with the real or imagined scandal in the government and place
it in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
Under these circumstances, did you not entertain some apprehension
that some disloyal employees might leak you out and banner headline it
in some mosquito publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear.
We are in the government and we in the government fear the COA and
we also fear the press. We might get dragged into press releases on the
most innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly
documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about three (3)
different trips from Nichols to Aguado usually late in the day almost in
movie style fashion. I mean, the money being loaded in the trunk of your
official car and then you had a back-up truck following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you ?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
"Q You did not think it fearful to be driving along Roxas Boulevard with
P25 million in the trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was
in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with
P5 million inside the trunk of your car, was that not a nervous
experience?
 A As I have said, your Honor, I never thought of that. *PJ GARCHITORENA

PJ GARCHITORENA Was that marked in evidence?

Thank you very much, Mr. Tabuena. You are excused. . . . 42 WITNESS

(PERALTA) Yes, your Honor.

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of *PJ GARCHITORENA
the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an
existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at What exhibit?
the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said
amount or any portion thereof.)
WITNESS

CROSS-EXAMINATION BY PROS VIERNES

I have here a copy, your Honor. This was the order and it was marked as
exhibit "N".
Q Will you please tell the Honorable Court why was it necessary for you
to co-sign with Mr. Tabuena the request for issuance of Manager's check
PROS VIERNES
in the amount of P5 million?

It was marked as Exhibit "M", your Honor.

A At that time I was the Acting Financial Services Manager of MIAA, sir,
and all withdrawals of funds should have my signature because I was one
of the signatories at that time.
Q As Acting Financial Services Manager of MIAA, you always co-sign with
Mr. Tabuena in similar requests for the issuance of Manager's checks by
the PNB?
A That is the only occasion I signed, sir.
Q How did you know there was an existing liability of MIAA in favor of
PNCC at that time?
A Because prior to this memorandum of Mr. Tabuena, we prepared the
financial statement of MIAA as of December 31, 1985 and it came to my
attention that there was an existing liability of around P27,999,000.00,
your Honor.

Q When was that Financial Statement prepared?

Q Did you say you were ordered by Mr. Tabuena to sign the request?

A I prepared it around January 22 or 24, something like that, of 1986, sir.

A Yes, sir, and I think the order is part of the exhibits and based on that
order, I co-signed in the request for the issuance of Manager's check in
favor of Mr. Luis Tabuena. Q Is it your usual practice to prepare the Financial Statement after the
end of the year within three (3) weeks after the end of the year?
PROS VIERNES
A Yes, sir, it was a normal procedure for the MIAA to prepare the
Financial Statement on or before the 4th Friday of the month because
Q Was there a separate written order for you to co-sign with Mr.
there will be a Board of Directors Meeting and the Financial Statement of
Tabuena?
the prior month will be presented and discussed during the meeting.

WITNESS
*PJ GARCHITORENA

A Yes, sir, an order was given to me by Mr. Tabuena.

*Q This matter of preparing Financial Statement was not an annual
activity but a monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986
recapitulated the financial condition as of the end of the year?
A Mr. Tabuena requested me to do the counting by million, sir. So what I
did was to bundle count the P5 million and it was placed in two (2)
peerless boxes.
Q Did you actually participate in the counting of the money by bundles?
A Yes, sir.

A Yes, your Honor. Q Bundles of how much per bundle?

PJ GARCHITORENA A If I remember right, the bundles consisted of P100s and P50s, sir.

Continue. Q No P20s and P10s?

PROS VIERNES A Yes, sir, I think it was only P100s and P50s.

Q You made mention of a request for Escalation Clause by former *PJ GARCHITORENA
Minister Ongpin. Did you personally see that request?
*Q If there were other denominations, you can not recall?
A When this order coming from Mr. Tabuena was shown to me, I was
shown a copy, sir. I have no file because I just read it. A Yes, your Honor.

Q It was Mr. Tabuena who showed you the letter of Minister Ongpin? PROS VIERNES

A Yes, sir. Q In how many boxes were those bills placed?

*PJ GARCHITORENA A The P5 million were placed in two (2) peerless boxes,

And that will be Exhibit? Q And you also went with Mr. Tabuena to Aguado?

ATTY. ANDRES A No, sir, I was left behind at Nichols. After it was placed at the trunk of
the car of Mr. Tabuena, I was left behind and I went back to my office at
Exhibit "2" and "2-A", your Honor. MIA.

PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you withdrew
the amount of P5 million from the PNB Extension Office at Villamor?
A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
Q But the fact is that, this P5 million was withdrawn at passed 5:00
o'clock in the afternoon?
A I started counting it I think at around 4:30, sir. It was after office hours.
But then I was there at around 4:00 o'clock and we started counting at
around 4:30 p.m. because they have to place it in a room, which is the
office of the Manager at that time.
Q And Mr. Tabuena left for Malacañang after 5:00 o'clock in the
afternoon of that date?
A Yes, sir. After we have counted the money, it was placed in the peerless A Based on the order of President Marcos that we should pay in cash, it
boxes and Mr. Tabuena left for Malacanang. was not based on the normal procedure, your Honor.

PROS VIERNES *Q And, as Acting Financial Services Manager, you were aware that all
disbursements should be covered by vouchers?
Q And you yourself, returned to your office at MIA?
A Yes, your Honor, the payments should be covered by vouchers. But
WITNESS then, inasmuch as what we did was to prepare a request to the PNB, then
this can be covered by Journal Voucher also.
A Yes, sir.
*Q Was such payment of P5 million covered by a Journal Voucher?
Q Until what time do you hold office at the MIA?
A Yes, your Honor.
A Usually I over-stayed for one (1) or two (2) hours just to finish the paper
works in the office, sir. *Q Did you present that Journal Voucher here in Court?

Q So, even if it was already after 5:00 o'clock in the afternoon, you still A We have a copy, your Honor.
went back to your office at MIA?
*Q Do you have a copy or an excerpt of that Journal Voucher presented
A Yes, sir. in Court to show that payment?

PROS VIERNES A We have a copy of the Journal Voucher, your Honor.

That will be all, your Honor. *Q Was this payment of P5 million ever recorded in a cashbook or other
accounting books of MIAA ?
PJ GARCHITORENA
A The payment of P5 million was recorded in a Journal Voucher, your
Honor.
Redirect?

*PJ GARCHITORENA
ATTY. ESTEBAL

*Q In other words, the recording was made directly to the Journal?

No redirect, your Honor.

WITNESS
*PJ GARCHITORENA

A Yes, your Honor.

Questions from the Court.

*Q There are no other separate documents as part of the application for

*AJ DEL ROSARIO
Manager's Check?

*Q Did you not consider it as odd that your obligation with the PNCC had
A Yes, your Honor, there was none.
to be paid in cash?

*AJ DEL ROSARIO

WITNESS
*Q After the payment was made, did your office receive any receipt from
PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa
Gimenez, your Honor. Inasmuch as the payment should be made through
the Office of the president, I accepted the receipt given by Mrs. Fe
Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary supporting
documents, vouchers, and use that receipt as a supporting document to
the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Manager's check, no disbursement
voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, I986, and that was very
close to the election held in that year, did you not entertain any doubt
that the amounts were being used for some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the
question on the ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't think
there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on
record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA,
did you not consider it proper that a check be issued only after it is
covered by a disbursement voucher duly approved by the proper
authorities ?
A Your Honor, what we did was to send a request for a Manager's check
to the PNB based on the request of Mr. Tabuena and the order of Mr.
Tabuena was based on the Order of President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did you
not think it proper to have this transaction covered by a disbursement
voucher?
WITNESS
A Based on my experience, payments out of cash can be made through
cash vouchers, or even though Journal Vouchers, or even through credit
memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you allow a
disbursement by means of check in favor of Mr. Luis Tabuena, your own
manager?
A We based the payment on the order of Mr. Tabuena because that was
the order of President Marcos to pay PNCC through the Office of the
President and it should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider that
legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.
*PJ GARCHITORENA
Considering that tire witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the order
was to pay PNCC the amount of P5 million through the Office of the
President and it should be paid in cash, your Honor. And at that time, I
know for a fact also that there was an existing P.D. wherein the President
of the Republic of the Philippines can transfer funds from one office to
another and the PNCC is a quasi government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that
P.D. which you referred to?
A I am not aware of the motive of the President, but then since he is the
President of the Philippines, his order was to pay the PNCC through the
Office of the President, your Honor.
*Q As Financial Manager, why did you allow a payment in cash when
ordinarily payment of an obligation of MIAA is supposed to be paid in
check?
A I caused the payment through the name of Mr. Tabuena because that
was the order of Mr. Tabuena and also he received an order coming from
the President of the Philippines at that time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to
correct certain statements of accounts earlier made in the same journal?
In other words, really what you are telling us is that, a Journal Voucher is
to explain a transaction was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is proper, you
are saying it is proper only because of the exceptional nature of the
transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally authorize
such a movement of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question
is misleading because what the witness stated is. . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that. . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated
earlier is that the Journal Voucher in this particular case was supported,
your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the
General Manager at that time and the order of President Marcos, your
Honor.
*Q Are you saying the Order of the General Manager is an adequate basis
for the movement of money?
A Yes, your Honor, because at that time we have also a recorded liability
of P27 million.
*Q we are not talking of whether or not there was a liability. What we are *Q This Presidential Decree which authorizes the President to transfer
saying is, is the order of the General Manager by itself adequate with no funds from one department to another, is this not the one that refers to
other supporting papers, to justify the movement of funds? the realignment of funds insofar as the Appropriation Act is concerned?

A Yes, your Honor. The order of Mr. Luis Tabuena was based on our WITNESS
existing liability of P27,931,000.00, inasmuch as we have that liability and
I was shown the order of President Marcos to pay P5 million through the A Because at that time, your Honor, I have knowledge that the President
Office of the President, I considered the order of Mr. Luis Tabuena, the is authorized through a Presidential Decree to transfer government funds
order of President Marcos and also the existing liability of P27 million from one office to another.
sufficient to pay the amount of P5 million. Inasmuch as there is also an
escalation clause of P99.1 million, the payment of P5 million is fully
*PJ GARCHITORENA
covered by those existing documents.

*Q Under the Appropriation Act. Are payments of debts of the MIAA

*PJ GARCHITORENA
covered by the Appropriation Act?

You keep flooding us with details we are not asking for. We are not asking
A I think the liability was duly recorded and appropriations to pay the
you whether or not there was valid obligation. We are not asking you
amount is. . . . (interrupted)
about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the
movement of funds? *PJ GARCHITORENA

WITNESS *Q Tell me honestly, is your answer responsive to the question or are you
just throwing words at us in the hope that we will forget what the
question is?
When we pay, your Honor, we always look for the necessary documents
and at that time I know for a fact that there was this existing liability.
A No, your Honor.
*PJ GARCHITORENA
*Q Are you telling us that the debts incurred by MIAA ate covered by the
Appropriations Act so that the payment of this debt would be in the same
When we ask questions and when we answer them, we must listen to the
level as the realignment of funds authorized the President? Or are you
question being asked and not to whatever you wanted to say. I know you
telling as you did not read the Decree?
are trying to protect yourself. We are aware of your statement that there
are all of these memoranda.
A I was aware of that Decree, your Honor.
*Q By your disbursement of such amount, you are saying that the order
of Mr. Tabuena by itself is adequate? *PJ GARCHITORENA

WITNESS Mr. Estebal, will you include in your memorandum what are the Decrees
authorizing this movement of funds?
A As far as I am concerned, your Honor, inasmuch as we have a liability
and I was shown the Order of President Marcos to pay PNCC through his ATTY. ESTEBAL
office, I feel that the order of the General Manager, the order of
President Marcos, and also the memorandum of Minister Ongpin are Yes, your Honor.
sufficient to cause the payment of P5 million.
*PJ GARCHITORENA
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an
officer of the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have different officers
and different officials in any company either government or private,
which are supposed to check and balance each other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made by
authority of not only one person alone so that nobody will restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one person can
dispose of funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to documents
and negotiable documents is for the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In the other words, even if Mr. Tabuena is the Manager, you as
Financial Services Manager and as counter signatory are in a position to
tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement
is not proper and, therefore, I will not sign it"., if in your opinion the
disbursement is not proper?
A Yes, your Honor.
*Q Therefore, as a co-signatory, you expected to exercise your judgment
as to the propriety of a particular transactions?
A Yes, your Honor.
*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were
unusual in the manner with which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount
was being disposed of?
A A written protest was not made, your Honor, but I called the attention
of Mr. Tabuena that since this payment was upon the order of President
Marcos, then I think as President he can do things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare a
memorandum for the record that this was an extra-ordinary transaction?
A I called the attention of Mr. Tabuena that this was an extra-ordinary
transaction and no written note, your Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. . . . 43
This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind
upon any material point which presents itself during the trial of a case over which he presides. 44 But not only
should his examination be limited to asking "clarificatory" questions, 45 the right should be sparingly and
judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor
intervening in the conduct of the trial.46 Here, these limitations were not observed. Hardly in fact can one avoid
the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the
prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses,
their cross- examinations supplementing those made by Prosecutor Viernes and far exceeding the latter's
questions in length. The "cold neutrality of an impartial judge" requirement of due process was certainly denied
Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and What is the ground for impropriety?
advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of
this Court was "unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial ATTY. ESTEBAL
portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more
importantly to show that the court questions were in the interest of the prosecution and which thus depart from
This is not covered in the direct examination, and secondly, I don't think
that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records,
there was any basis, Your Honor.
confronted with "numbers" without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir.,
1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in
extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on "numbers" PJ GARCHITORENA
to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115 questions of all witnesses, the
prosecutor asked but 1,381, defense counsel 3,330. The judge's questions to the defendant De Sisto totalled 306, Considering the withdrawal of the question, just make the objection on
the prosecutor's 347, and the defense counsel's, 201. After referring to these figures, the court stated: record.

. . . It is indeed an impressive proportion, but no such mathematical computation is of itself
determinative. However, taking all this in conjunction with the long and vigorous
examination of the defendant himself by the judge, and the repeated belittling by the judge
of defendant's efforts to establish the time that Fine left the pier, we fear that in its zeal for
arriving at the facts the court here conveyed to the jury too strong an impression of the
court's belief in the defendant's probable guilt to permit the jury freely to perform its own
function of independent determination of the facts. . . .
Nothing from the preceding questions of counsels or of the court would serve as basis for this
question. How then, can this be considered even relevant? What is the connection between the
payment made to the President's office and the then forthcoming presidential "snap election"? In
another instance, consider the following questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to
The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it correct certain statements of accounts earlier made in the same journal?
cannot be justified under the norm applied to a jury trial, or even under the standard employed in a
non-jury trial where the judge is admittedly given more leeway in propounding questions to clarify
points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this xxx xxx xxx
via some specific examples. Based on the evidence on record, and on the admission of Tabuena
himself, the P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience to the *Q In other words, really what you are telling us is that, a Journal
Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta: Voucher is to explain a transaction was otherwise not recorded.

AJ DEL ROSARIO xxx xxx xxx

Q: Since the payment was made on January 31, 1986, and that was very *Q Therefore, when you said that a Journal Voucher here is proper, you
close to the election held in that year, did you not entertain any doubt are saying it is proper only because of the exceptional nature of the
that the amounts were being used for some other purposes? transactions?

ATTY. ESTEBAL xxx xxx xxx

With due respect to the Honorable Justice, We are objecting to the *Q In other words, as an Accountant, you would not normally authorize
question on the ground that it is improper. such a movement of money unless it is properly documented?

AJ DEL ROSARIO ATTY. ESTEBAL

I will withdraw the question. With due respect to the Honorable Presiding Justice, I think the question
is misleading because what the witness stated is . . .
PJ GARCHITORENA
*PJ GARCHITORENA
Be careful in your objection because the witness understands the When we ask questions and when we answer them, we must listen to the
language you are speaking, and therefore, you might be coaching him. question being asked and not to whatever you wanted to say. I know you
are trying to protect yourself. We are aware of your statement that there
ATTY. ESTEBAL are all of these memoranda.

No, your Honor. I am also an accountant that is why I could say that . . . *Q By your disbursement of such amount, you are saying that the order
of Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*PJ GARCHITORENA
Please be simple in your objection.
*Q This Presidential Decree which authorizes the President to transfer
funds from one department to another, is this not the one that refers to
ATTY. ESTEBAL
the realignment of funds insofar as the Appropriation Act is concerned?

The question is misleading on the ground that what the witness stated
*PJ GARCHITORENA
earlier is that the Journal Voucher in this particular case was supported,
your Honor.
*Q Under the Appropriation Act. Are payments of debts of the MIAA
covered by the Appropriation Act?
*PJ GARCHITORENA

*PJ GARCHITORENA
Overruled may answer.

*Q Tell me honestly, is your answer responsive to the question or are you

WITNESS
just throwing words at us in the hope that we will forget what the
question is?
A The transaction was fully documented since we have the order of the
General Manager at that time and the order of President Marcos, your
xxx xxx xxx
Honor.

*Q Are you telling us that the debts incurred by MIAA are covered by the
*Q Are you saying the Order of the General Manager is an adequate basis
Appropriations Act so that the payment of this debt would be in the same
for the movement of money?
level as the realignment of funds authorized the President? Or are you
telling as you did not read the Decree?
*Q We are not talking of whether or not there was a liability. What we
are saying is, is the order of the General Manager by itself adequate with
*PJ GARCHITORENA
no other supporting papers, to justify the movement of funds?

Mr. Estebal, will you include in your memorandum what are the Decrees
*PJ GARCHITORENA
authorizing this movement of funds?

You keep flooding us with details we are not asking for. We are not asking
ATTY. ESTEBAL
you whether or not there was valid obligation. We are not asking you
about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the Yes, your Honor.
movement of funds?
*PJ GARCHITORENA
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an
officer of the MIAA, was he?
 *Q In fact, for purposes of internal control, you have different in officers
and different officials in any company either government or private,
which are supposed to check and balance each other, is it not?
*Q So that when disbursements of funds are made, they are made by
authority of not only one person alone so that nobody will restrain him?
*Q These checks and balances exist in an entity so that no one person can
dispose of funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to documents
and negotiable documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial
Services Manager and as counter signatory are in a position to tell Mr.
Tabuena, "I am sorry, you are my superior but this disbursement is not
proper and, therefore, I will not sign it.", if in your opinion the
disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your
judgment as to the propriety of a particular transaction ?
*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant? 47
How can these questions be considered clarificatory when they clearly border more on cross-
examination questions? Thus, the Dissenting Opinion's focus on the distinction between the two kinds
of trial to justify the Sandiganbayan's active participation in the examination of petitioners Tabuena
and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore,
be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution.48
We doubt not that the sole motive of the learned judge was to ascertain the truth of the
transaction, but it is never proper for a judge to discharge the duties of a prosecuting
attorney. However anxious a judge may be for the enforcement of the law, he should always
remember that he is as much judge in behalf of the defendant accused of crime, and whose
liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the
interests of society. 49
Ordinarily it is not good practice for the presiding judge himself to examine witnesses at
length. The circumstances may be such in a given case as to justify the court in so doing. . . .
This court, however, has more than once said that the examination of witnesses is the more
appropriate function of counsel, and the instances are rare and the conditions exceptional
which will justify the presiding judge in conducting an extensive examination. It is always
embarrassing for counsel to object to what he may deem improper questions by the court.
Then, in conducting a lengthy examination, it would be almost impossible for the judge to
preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his
duty to see that justice is done, he will usually not find it necessary to conduct such
examinations. The extent to which this shall be done must largely be a matter of discretion,
to be determined by the circumstances of each particular case, but in so doing he must not
forget the function of the judge and assume that of an advocate. . . 50
While it is true that the manner in which a witness shall be examined is largely in the
discretion of the trial judge, it must be understood that we have not adopted in this country
the practice of making the presiding judge the chief inquisitor. It is better to observe our
time-honored custom of orderly judicial procedure, even at the expense of occasional delays.
. . . The judge is an important figure in the trial of a cause, and while he has the right, and it is
often his duty, to question witnesses to the end that justice shall prevail, we can conceive of
no other reason, for him to take the trial of the cause out of the hands of counsel. 51
The examination of witnesses is the more appropriate function of counsel, and it is believed
the instances are rare and the conditions exceptional in a high degree which will justify the
presiding judge in entering upon and conducting an extended examination of a witness, and
that the exercise of a sound discretion will seldom deem such action necessary or
advisable. 52
He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent
unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his
undue interference, impatience, or participation in, the examination of witnesses, or a severe
attitude on his part toward witnesses, especially those who are excited or terrified by the
unusual circumstances of a trial, may tend to prevent the proper presentation of the cause,
or the ascertainment of the truth in respect thereto. 53
The impartiality of the judge — his avoidance of the appearance of becoming the advocate of
either one side or the other of the pending controversy is a fundamental and essential rule of
special importance in criminal cases. . . 54
Our courts, while never unmindful of their primary duty to administer justice, without fear or
favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for
the court and the parties, should refrain from showing any semblance of one-sided or more
or less partial attitude in order not to create any false impression in the minds of the
litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of
the people's faith in our courts.55
 Time and again this Court has declared that due process requires no less than the cold
neutrality of an impartial judge. Bolstering this requirement, we have added that the judge
must not only be impartial but must also appear to be impartial, to give added assurance to
the parties that his decision will be just. The parties are entitled to no less than this, as a
minimum guaranty of due process. 56

We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that
those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the
mere expedient of invoking "good faith". It must never be forgotten, however, that we render justice on a case
to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an
acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the
same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon
reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances
and the evidence that led to the petitioner's acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of

constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most
dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful
to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the
Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of
the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby
ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code.
The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED
and SET ASIDE.

SO ORDERED.

Narvasa, C.J., Vitug, Kapunan and Mendoza, JJ., cocnur.