6.

Concept of relevance and conditional admissibility

G.R. No. L-28607             February 21, 1929

PRATS & COMPANY, a registered partnership, plaintiff-appellant,

vs.
PHOENIX INSURANCE COMPANY, HARTFORD, CONNECTICUT, a corporation, defendant-appellee.

Abad Santos, Camus, Delgado and Recto and Ohnick and McFie for appellant.
Gibbs and McDonough for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of the City of Manila by Prats & Co., a mercantile
partnership, for the purpose of recovering from the Phoenix Insurance Co., of Hartford, Connecticut, the sum
of P117,800.60, with interest, by reason of a loss alleged to have been sustained by the plaintiff, on August 21,
1924, from a fire, it being alleged that said loss was covered by policy of insurance No. 600217, for the sum of
P200,000, issued by the defendant company to the plaintiff. For answer, the defendant, Pheonix Insurance
Co., admitted the insurance of the policy of insurance but, by way of special defense, alleged, among other
things, that the fire in question had been set by the plaintiff, or with its connivance, and that the plaintiff had
submitted under oath to the defendant a fraudulent claim of loss, in contravention of the express terms of the
policy. Upon hearing the cause the trial court absolved the defendant from the complaint with respect to the
obligation created by the policy which was the subject of the suit, but ordered the defendant to pay to the
plaintiff the sum of P11,731.93, with interest from the filing of the complaint, upon account of moneys
received from salvage sales, conducted by the defendant, of remnants of the insured stock. From this
judgment the plaintiff appelaed.

So far as liability under the policy of insurance which is the subject of this action is concerned, we are of the
opinion that the defendant has sufficiently established two defenses, either of which would be fatal to the
right of recovery, namely, first, that the fire was set by the procurance or connivance of the plaintiff for the
purpose of defrauding the insurer; and secondly, that the plaintiff, after the fire, submitted to the defendant a
fraudulent claim supported by the false proof, in violation of the terms of the policy. Of these defenses the
trial judge sustained the second but passed the first without express finding. We consider it important,
however, briefly to exhibit the salient facts on both points, not only because of the considerable sum of
money involved, but because the facts appearing in evidence supply a typical illustration of the manner in
which frauds of this character against the insurance companies may be constructed with some hope of
success, when insurance agents are accessible who, under the incentive of writing large amounts of insurance,
can be induced to close their eyes to obvious dangers.

On July 10, 1923, Francisco Prats, Elias Hanna and Isidro Bejar registered two mercantile partnerships in the
Bureau of Commerce and Industry for the purpose of engaging in mercantile business. The articles of
copartnership of these two entities were the same except in the firm names. It was apparently contemplated,
in so far as any legitimate function may have been intended, that Prats & Co. should be an importing firm,
while Hanna, Bejar & Co. should engage in retail businss. As eveents show, the existence of the parallel
entities, controlled by the same individuals, supplied, undeniably, suitable engines for accomplishing an
exploit of the kind that was here attempted. Of the three individuals mentioned Elias Hanna and Isidro Bejar
were Turkish subjects of unsavory reputation in insurance circle of Manila, while Francisco Prats was a Spanish
subject who had had some success as a merchant and, prior to his connection with the two associates above
mentioned, apparently enjoyed a fair reputation. Another individual, who figures in the case as an instrument
of the three partners, is one Domingo Romero, who at that the time which we are here concerned, was an
employee of the Bureau of Internal Revenue, with a salary of P150 per month. Ramon Prats, a son of Francisco
Prats, was united in marriage to a daughter of Domingo Romero, with the result that social relations between
Francisco Prats and Domingo Romero were close. Francisco Prats appear to have acted as manager for both
Prats & Co. and Hanna, Bejar & Co.

On May 27, 1924, Prats, acting for Hanna, Bejar & Co., purchased a one-story building at 95 Plaza Gardenia,
Manila; and soon thereafter he begun to assemble in this place the stock of merchandise which was the
subject of insurance in this case. The building referred to was purchasd outright for the sum of P1,600. It was
old and was scarcely more than a shed but had been used in times past for human habitation. It was located in
a part of the city which was inconvenient of success to traders and out of the ordinary channels of business
activity. After purchasing the building, Prats knocked out the partitions, removed the floor, and laid along the
center. The main part of the structure was thus converted into a single store, or bodega, though certain
adjuncts, consisting of kitchen and closets, remained unchanged in the rear of the building. A sign was then set
up over the entrance bearing the firm name "Hanna, Bejar & Co." In effecting the purchase of this building
Prats availed himself of the service of Domingo Romero, who lived only two doors away at 97 Plaza Gardenia.

By August 21, 1924, there had been assembled and stored by Prats in the place above described a stock of
goods which, according to the documents exhibited by him, had a valuation of P211,329.72, on which he had
taken out insurance to the extent of P410,000. At midnight of the day mentioned a fire occurred at 95 Plaza
Gardenia, which destroyed the building and ruined its contents, the amount realized from the salvage of the
stock being P11,731.93.

With respect to the insurance upon this stock at the time of the fire, the following facts appear: In the month
of June preceeding the fire, nine policies aggregating P160,000 were taken out by Prats in the name of Hanna,
Bejar & Co. on merchandise stored at 95 Plaza Gardenia. At the time these policies were taken out the
valuation of the goods then in said store could not have been more than P68,753. On June 28, 1924, Prats
procured from the agent of the defendant in this case policy of insurance No. 600217 in the amount of
P200,000 on merchandise stored in the same place. The nine policies already procured had been taken out, as
we have seen, in the name of Hanna, Bejar & Co.; but when Prats applied to the agent of the defendant for
the P200,000 policy last above mentioned, the agent told him that if Hanna or Bejar had any interest in the
stock to be insured the policy could not be issued for the reason that, in such case, the defendant would not
be able to obtain reinsurance for any part of the policy, owing to the bad reputation of Hanna and Bejar.
Accordingly, at the request of Prats & Co.; and Prats at the same time assured the agent that Hanna and Bejar
were not partners in Prats & Co. With the writing of this policy the amount of insurance on the merchandise at
95 Plaza Gardenia was increased to P360,000, while the value of the stock at that time was not probably much
in excess of P158,000. On August 11, 1924, or just ten days before the fire, Prats took out an additional policy
for P50,000 in the name of Prats & Co. on the same stock. This made a total insurance of P410,000 on the
contents of the store at 95 Plaza Gardenia. At the time, according to Prats himself, the evaluation of the
merchandise then in the place was not in excess of P230,000. Furthermore, Prats, about this time, caused the
first nine policies which had been taken out in the name of Hanna, Bejar & Co. to be indorsed to Prats & Co.,
thereby making this firm the sole insured firm with respect to this stock of merchandise.

With respect to the origin of the stock thus assembled, we find that part had been purchased in Europe by
Prats; and in connection with its importation from abroad it is noteworthy that on June 18, 1924, Prats & Co.
procured a policy of marine insurance to be issued by Meerkamp & Co., Ltd., as agents of the India Insurance
Co., Ltd., Upon twenty-two cases of silk, of a supposed value of P43,400. at the time this policy was procured
Prats informed the insurer that the goods were soon to arrive from France by the steamer Suwa Maru. For this
policy of insurance Prats paid out the sum of P736.25. Nevertheless, it now appears that the twenty-two cases
of silk covered by this marine policy were fictitious, as no such purchase of silk had been made by Prats & Co.
in France or elsewhere. This fact was offered in evidence by the defendant, as tending to reveal a scheme by
which, if a dstructive fire should occur, the plaintiff would be able to mislead the defendant as to the quantity
of goods stored in the bodega. This item of proof, though circumstantial in its nature, was undoubtedly
competent and should have been admitted by the trial court.

The proof submitted by the defendant tends to show that obscure manipulations were used by the plaintiff in
the storing of merchandise at 95 Plaza Gardenia and in the removal of part of the contents of the bodega
before the fire. In this connection it appears that forty-five cases of old stock of Hanna, Bejar & Co., at Legaspi,
P. I., were shipped to Manila before the fire, but instead of being taken directly to 95 Plaza Gardenia, they
were housed for a time in the back part of the lower floor of the Bazar Filipino in which Prats & Co. and Hanna,
Bejar & Co. had their offices. Moreover, a quantity of merchandise purchased from place shortly before the
fire, instead of directly to 95 Plaza Gardenia; and it is the theory of the defendant that new merchandise
purchased from Talambiras Brothers was substituted for the old stock in boxes from Hanna, Bejar & Co. at
Legaspi, leaving the old goods to be deposited in the bodega to swell the debris of the fire. There is evidence
also, which was credited by the court, to the effect that on various occasions before the fire goods were
removed from the bodega to the store of B. Abolafia, at Manila, where they were received without invoice.
Some of these goods were subsequently sent away by Abolafia for sale in the provinces.

If overinsurance and the assemblage of goods at inflated values in the bodega at 95 Plaza Gardenia, together
with the surreptitious abstraction of goods therefrom by the insured, have suggested a possible intention on
the part of its manager to realize improperly on its insurance policies, this inference is, in our opinion, but
beyond reach of reasonable doubt by facts relative to the destruction of the place. In this connection we note
that about the time the bodega at 95 Plaza Gardenia had been purchased, Domingo Romero assisted one
Ramon Osete to rent No. 69 Calle Gardenia, which was close to the rear of the building at 95 Plaza Gardenia.
Osete appears to have been the individual chose for the role of incendiary, and he slept at the place
mentioned until the night of the fire. A night or two before the fire this Osete, accompanied by one Antonio
Prats, appears to have brought two cans of petroleum to his lodging place at 69 Calle Gardenia. After these
cans had been taken to Osete's bathroom by his muchacho, the latter was sent out on an errand; and while he
was gone the petroleum disappeared. After the fire had been started in the plaintiff's bodega shortly after
midnight on August 21, 1924, Osete conveyed this boy in his automobile to the fire alarm box on Plaza
Gardenia. Reaching this place, Osete planted the boy there with instructions to stop anyone who might
attempt to turn in the alarm by telling him that he (the boy) had already done so; and in fact, after the fire had
gained some headway, one Joaquin Silos, who lived near the bodega, ran to the box to turn on the alarm but
was stopped in the act by a person who stated that he had already given the alarm. Nevertheless, when Fire
Chief Vanderford reached the scene of the fire a few minutes later, he found that the box had not been
disturbed and he himself turned on the alarm. The boy stated that when he was on the way with Osete to the
alarm box, as just stated, an explosion took place in the bodega and a dull sound was emitted. Vanderford says
that upon his arrival he saw that the smoke issuing from the bodega black, suggesting the combustion of some
inflammable material like petroleum. He also noted the odor of petroleum, as did also some of the firemen
who reached the scene. It may be added that when the debris of the fire was subsequently searched,
merchandise soaked with petroleum was found in the ruins.

Domingo Romero, who had been living at 97 Plaza Gardenia, had before the fire taken his family temporarily
to the home of Prats in Pasay. But after the fire was over the family moved back to 97 Plaza Gardenia,
although that place had been considerably damaged by the flames.

Among those who suffered from the fire were the members of the Artigas family, living at 93 Gardenia, on the
side opposite Romero's house. Another neighbor who likewise suffered from the fire was one Juan Atayde,
occupant of 67 Calle Gardenia, at the side of the house occupied by Osete. Soon after the fire Domingo
Romero quietly passed a 100-peso bill into the hand of Maria Luisa Artigas, a daughter belonging to the Artigas
family. Romero likewise gave the same amount to Juan Atayde. It is self-evident that the gifts thus made by
Romero to Luisa Artigas and Juan Atayde had other motives than pure charity and that the money probably
came from some other source than his own modest earnings. After the fire that a special investigation was
made by the police department with the result that Deputy Chief Lorenzo came to the conclusion that the fire
had originated from an intentional act. Reflection upon the proof before the court engenders in us the same
belief and conducts us to the further conclusion that Prats & Co. was not alien to the deed.

The finding of the trial court in the effect that the plaintiff had submitted false proof in the support of his claim
is also, in our opinion, well founded. That conclusion appears to have been based upon three items of proof,
and with respect to at least two of these, we think that the conclusion of his Honor was correctly drawn. These
two facts are, first, that the plaintiff had submitted a claim for jewelry lost in the fire as of a value of P12,800
when th erule value of said jewelry was about P600; and, secondly, that the plaintiff had sought to recover
from the insurance company the value of goods which had been surreptitiously withdrawn by it from the
bodega prior to the fire. Neither of these two facts are consistent with good faith on the part of the plaintiff,
and each constituted a breach of the stipulations of the policy against the use of fraudulent devices and false
proof with respect to the loss.

The other point relied upon by his Honor to sustain the conclusion that the plaintiff had attempted to deceive
the defendant with respect to the extent of the loss was at least competent in its general bearing on the good
faith of the plaintiff, even if, as is probably true, not alone sufficient to constitute a breach of the same
stipulations. The point is this: After the fire the plaintiff presented to the adjuster certain cost sheets and cpies
of supposed invoices in which the prices and expenses of importation of a quantity of goods were stated at
double the true amount. The adjuster soon discovered the artificial nature of these documents, and, with his
consent, they were withdrawn by Prats and subsequently destroyed. At the hearing Prats stated that these
documents had been fabricated in order that they might be exhibited to intending purchasers of the goods,
thereby making it appear to them that the cost of the mercahndise had been much greater than it in fact was
— a ruse which is supposed to have been entirely innocent or at least not directed against the insurer. But a
question naturally arises as to the purpose which these documents might have been made to serve if the fire,
as doubtless intended by its designers, had been so destructive as to remove all vestiges of the stock actually
involved. Upoon the whole we are forced to state the conclusion, not only that the plaintiff caused the fire to
be set, or connived therein, but also that it submitted fraudulent proof as the trial judge found.

Before concluding this opinion we are constrained to make a few observations with reference to the trial of
this case and the inordinate amountof time consumed in the proceedings. We are told in the appellant's brief
that the trial of this case covered a period of almost two years, in which fifty separate sessions were held,
without counting the numeruos hearings upon the taking of the deposition of Francisco Prats, a partner in the
plaintiff firm, whose testimony was taken at the instance of the defendant. Taken all together, the time thus
consumed was out of all proportion to the difficulties of the case. An examination of the voluminous transcript
reveals at least part of the reason for this inordinate consumption of time; since we find that far too much of
the space in the transcript is taken up with the record of petty skirmishes in court resulting from objections
over the admission of evidence.

In the course of long experience we have observed that justice is most effectivly and expenditiously
administered in the courts where trivial objections to the admission of proof are received with least favor. The
practice of excluding evidence on doubtful objection to its materiality or technical objection to the form of the
questions should be avoided. In a case of any intricacy it is impossible for a judge of first instance, in the early
stages of the development of the proof, to know with any certainty whether testimony is relevant or not; and
where there is no indication of bad faith on the part of the attorney offering the evidence, the court may as a
rule safely accept the testimony upon the statement of the attorney that the proof offered will be connected
later. Moreover, it must be remembered that in the heat of the battle over which he presides a judge of first
instance may possibly fall into error in judging of the relevancy of proof where a fair and logical connection is
in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon
appeal, often finds itself embarrassed and possibly unable to correct the effects of error without returning the
case for a new trial, -- a step which this court is always very loath to take. On the other hand, the admission of
proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can
never result in much harm to either litigant, because the trial judge is supposed to know the law; and it is its
duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and
immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this court
then has all the material before it necessary to make a correct judgment.

In this connection it should be remembered that many of the technical rules of evidence which are often
invoked in our courts were originally worked out in England and the United States, where the jury system
prevails. These rules were adopted for the purpose of keeping matter from juries which — it was supposed —
might unduly influence them in deciding on the facts. They have little pertinence to a system of procedure, like
ours, in which the court is judge both of law and facts, and in which accordingly it is necessary for the court to
know what the proof is before it rules upon the propriety of receiving it. Apart from these considerations is
the circumstance mentioned above that the time consumed in the trial on such collateral points is generally
many times greater than would be consumed if the questionable testimony should be admitted for what it is
worth. What has been said above finds special relevancy in this case in view of the action of the trial court in
refusing to consider the proof referred to in the opinion showing that the plaintiff, while engaged in
assembling its stock, procured maritime insurance upon a fictitious importation of silk. We earnestly commend
the maintenance of liberal practice in the admission of proof.

Our examination of the case leads to the conclusion that the result reached by the trial court was correct.

The appealed decision will therefore be affirmed, and it is also ordered, with costs against the appellant.

Avancena, C. J., Villamor and Ostrand, JJ., concur.

Romualdez, J., concurs for the affirmance of the appealed judgment.
Villa-Real, J., concurs in the result.

Separate Opinions

MALCOLM, J., concurring:

I concur in the result and agree with the clear decision of the trial judge sustaining the defense of false proof,
but desire to make of record my nonconfirmity as to a discussion of questions not involved in the disposition
of the assignment of errors.
G.R. No. L-29039      November 28, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. HON. FELINO D. ABALOS, Judge of the Court of First Instance,
Branch II, 16th Judicial District, and MOHAMMAD USSAM DAMBONG, Respondents.

Sulu Assistant Provincial Fiscal Jainal D. Rasul for plaintiff.

Bueno, Amin and Isnani for respondents.

CONCEPCION, C.J.:chanrobles virtual law library

This is a special civil action for certiorari and mandamus with preliminary mandatory injunction, to annul an

order of Honorable Felino D. Abalos, as Judge of the Court of First Instance of Sulu, directing that the
testimony of a rebuttal witness for the prosecution in Criminal Case No. 3158 of said Court be stricken from
the records. Soon after the filing of the petition herein, We issued a temporary restraining order directing that
the continuation of the trial of said case be suspended until further
orders.chanroblesvirtualawlibrarychanrobles virtual law library

On or about March 9, 1966, an information was filed with said court, presided over by respondent Judge,
accusing Mohammad Ussam Dambong, Jikiri Dambong, Amiril Habissi and Ahmad Intoman, of the crime of
double murder upon Abdulhadi Maoludani and Maoludani Habissi, with multiple frustrated murder upon the
persons of Sarahani Maoludani, Marajuko Maoludani and Abdulrajik Maoludani, allegedly committed on
February 6, 1961, in Guimba Asin, municipality of Panamao, province of Sulu. When the case was called for
trial, the prosecution introduced evidence tending to show that defendant Mohammad Ussam Dambong had,
on February 6, 1961, gone to the place aforementioned, accompanied by his co-defendants, and then fired at
and killed Maoludani Habissi and Abdulhadi Maoludani, as well as shot and wounded the other persons
named in the information. After the reception of said evidence for the prosecution, the defense proceeded
with the presentation of its own evidence, in the course of which, defendant Mohammad Ussam Dambong
testified that the casualties and the injuries adverted to above were due to shots fired, not by him, but by
Abdulkadil Habbisi because, as a police sergeant in the performance of his duty, he (Mohammad Ussam
Dambong) had merely fired into the air, to stop a fight between two (2) groups of persons, to one of which the
victims belonged. The defense having, thereafter, completed the introduction of its evidence, on April 24,
1968, the prosecution called Majid Andi as rebuttal witness.chanroblesvirtualawlibrarychanrobles virtual law
library

After the preliminary questions propounded to him, the defense objected to further questions, upon the
ground that Madjid Andi appeared to have witnessed the occurrence and that his testimony should have been
introduced when the prosecution presented its evidence in chief. Respondent Judge sustained the objection,
but, later, reconsidered his resolution, as the prosecution explained that it had discovered Madjid Andi
sometime after the introduction of its evidence in chief and that the testimony of said witness would merely
rebut that of defendant Mohammed Ussam Dambong. Thereupon, the prosecution resumed the examination
of Madjid Andi, who said that he was present when the shooting involved in the case took place, that
Maoludani Habissi and Abdulhadi Maoludani were shot by defendant Mohammad Ussam Dambong, not by
Abdulkadil Habbisi, and that the latter was not even at the scene of the occurrence. The prosecution then
asked Madjid Andi whether Mohammad Ussam Dambong was in the courtroom. The defense objected to this
question as improper for rebuttal, and one that should have been asked during the presentation by the
prosecution of its evidence in chief. Respondent Judge sustained the objection and ordered the testimony of
Madjid Andi stricken from the record, as improper for rebuttal.chanroblesvirtualawlibrarychanrobles virtual
law library
The prosecutor having announced that Madjid Andi would be its last witness and that he (prosecutor) would
appeal from the resolution of the court as soon as copy thereof had been furnished him, respondent Judge
incorporated his aforementioned resolution in an order, dated May 2, 1968, directing that the testimony of
said witness, be "discarded from the records on the ground that the testimony are answers to questions not
proper in rebuttal" and stating that "from the observation of the Court, the witness in rebuttal should have
been presented as a witness in the presentation of the evidence in chief of the prosecutor", and declaring that
the case would be deemed submitted for decision on May 15, 1968, unless the parties sought permission to
file memoranda on or before said date.chanroblesvirtualawlibrarychanrobles virtual law library

Hence, this original action for certiorari and mandamus, with preliminary mandatory injunction, filed by the
prosecution against said respondent Judge and Mohammad Ussam Dambong, for the purpose stated at the
beginning of this decision. In his answer to the petition herein, respondent Judge reiterated the views
expressed by him during the trial, as well as in the resolution and the order complained of. Respondent
Mohammad Ussam Dambong filed an answer defending the position taken by respondent Judge. Such
position is utterly untenable.chanroblesvirtualawlibrarychanrobles virtual law library

Referring particularly to the question whether or not respondent Judge erred in ordering the testimony of
Madjid Andi stricken from the records, We note that the information alleges that defendant Mohammad
Ussam Dambong had fired at and killed Maoludani Habissi and Abdulhani Maoludani, as well as wounded
several other specified persons. Naturally, the evidence for the prosecution tended to prove that
Mohammad had committed these acts. Upon the other hand, Mohammad was entitled to establish the
contrary - that he did not kill or wound said person. He, however, went further, to which he was entitled, by
testifying that it was Abdulkadil Habbisi who killed and wounded the persons above-mentioned. This was a
new matter, not covered directly by the evidence for the prosecution. It is true that, if, as testified to by its
witnesses, it was Mohammad Ussam Dambong who caused the deaths and the injuries already adverted to, it
would follow that Abdulkadil Habbisi was not the author thereof. The prosecution was entitled, however, as a
matter of strict legal right, to introduce positive evidence to this effect, instead of relying upon at mere
inference from its evidence in chief. In fact, it was to the interest of the trial court, in the discharge of its duty
to find the truth, to receive said rebuttal evidence for the prosecution. What is more, a failure to introduce it
on rebuttal could have been regarded as a sign of weakness in the evidence for the prosecution. Then, too, it
would have been ridiculous for the prosecution, during the presentation of its evidence in chief, to try to
prove that the crimes charged on the information had not been committed by Abdulkadil
Habbisi.chanroblesvirtualawlibrarychanrobles virtual law library

Under the circumstances, it is obvious that, in directing that the testimony of Madjid Andi be stricken from the
record and not allowing said witness to identify the person who committed the crime aforementioned,
respondent Judge had committed a grave abuse of discretion amounting to excess of
jurisdiction.chanroblesvirtualawlibrarychanrobles virtual law library

Trial courts have ample discretion to determine whether or not the parties should be allowed to introduce
evidence in rebuttal. Moreover, its resolutions on these matters are interlocutory in nature and will not
generally be reviewed, except on appeal taken from a decision rendered on the merits. Judicial discretion,
however, is not unlimited. It must be exercised reasonably, with a view to promoting the ends of justice, one
of which is to ascertain the truth. Hence, whenever discretion is vested, it must be understood to be a sound
one, inasmuch as the interest of justice, equity and fair play cannot be advanced otherwise. This is particularly
with respect to rules of procedure, especially those governing the admission or exclusion of evidence. As a
matter of general practice, it is deemed best to resolve doubts in favor of the admission of the contested
evidence, without prejudice to such action as the court may deem fit to take in deciding the case on the
merits.1 This practice has added importance as regards the evidence for the prosecution in criminal cases, for,
once the accused has been acquitted, there is no means to secure a review by appeal, no matter how
erroneous the action of the lower court may have been. Hence, We have been constrained to suspend the
proceedings in the criminal action involved in the case at bar, to forestall a possible miscarriage of
justice.chanroblesvirtualawlibrarychanrobles virtual law library

In issuing a writ of certiorari against a trial Judge who had rejected, inter alia, certain rebuttal evidence for the
prosecution in a criminal case, We had occasion to point out, in People vs. Montejo,2 that:

Upon a review of the record, we are fully satisfied that the lower court had, not only erred, but, also,
committed a grave abuse of discretion in issuing the resolutions complained of, in rejecting the
aforementioned direct and rebuttal evidence for the prosecution, and in not permitting the same to propound
the questions already adverted to. It is obvious to us that said direct and rebuttal evidence, as well as the
aforementioned questions, are relevant to the issues involved in Criminal Case No. 672. Although it is not
possible to determine with precision, at this stage of the proceedings, how far said exhibits may affect the
outcome of that case, it is elemental that all parties therein are entitled to a reasonable opportunity to
establish their respective pretense. In this connection it should be noted that, in the light of the allegations of
the amended information in said case and of the records before us, the issue of the guilt or innocence of the
accused therein is bound to hinge heavily upon the veracity of the opposing witnesses and the weight
attached to their respective testimony. Hence, the parties should be allowed a certain latitude in the
presentation of their evidence, lest they may be so hampered that the ends of justice may eventually be
defeated or appear to be defeated. The danger of leading to such result must be avoided, particularly in cases
of the nature, importance and significance of the one under consideration.

We, likewise, called attention to the following view, expressed in Prats & Co. v. Phoenix Insurance Co.3 as far
back as February 21, 1929:

In the course of long experience we have observed that justice is most effectively and expeditiously
administered in the courts where trivial objections to the admission of proof are received with least favor. The
practice of excluding evidence on doubtful objections to its materiality or technical objections to the form of
the questions should be avoided. In a case of any intricacy it is impossible for a judge of first instance, in the
early stages of the development of the proof, to know with any certainty whether testimony is relevant or not;
and where there is no indication of bad faith on the part of the attorney offering the evidence, the court may
as a rule safely accept the testimony upon the statement of the attorney that the proof offered will be
connected later. Moreover, it must be remembered that in the heat of the battle over which he presides a
judge of first instance may possibly fall into error in judging the relevancy of proof where a fair and logical
connection is in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme
Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of the error
without returning the case for a new trial - a step which this court is always very loath to take. On the other
hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or
relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to
know the law; and it is its duty, upon final consideration of the case, to distinguish the relevant and material
from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme
Court upon appeal, this court then has all the material before it necessary to make a correct judgment.

and commented that:

There is greater reason to adhere to such policy in criminal cases where questions arise as to admissibility of
evidence for the prosecution, for the unjustified exclusion of evidence may lead to the erroneous acquittal of
the accused or the dismissal of the charges, from which the People can no longer appeal.
as We granted a similar writ, in People v. Yatco,4 against another trial court that had ordered the exclusion of
an extrajudicial confession sought to be introduced as part of the evidence for the
prosecution.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the order complained of is hereby annulled, and respondent Judge, accordingly, directed to
receive the aforementioned testimony of Madjid Andi, as well as to allow him to identify the person who
caused the deaths and the injuries involved in the criminal case already adverted to, with the costs of this
instance against respondent Mohammad Ussam Dambong. It is so ordered.

Object as evidence

G.R. No. 109140 March 8, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLAND TACIPIT, accused-appellant.

BIDIN, J.:

This is an appeal from the decision dated November 24, 1992, of the Regional Trial Court of Sanchez Mira,
Cagayan, Branch 12, finding accused-appellant Roland Tacipit guilty beyond reasonable doubt of the crime of
rape, the dispositive portion of which reads as follows:

WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of rape, as
defined under paragraph (1) of Article 335 of the Revised Penal Code, as amended, without the
use of a deadly weapon, and hereby imposes on him the penalty of reclusion perpetua with all
the accessory penalties provided by law, and further sentences him to pay moral damages to
one Onelia Pamittan in the amount of FIFTY THOUSAND PESOS (P50,000.00), Philippine
currency and to pay the costs. . . . (Rollo, p. 32).

The records of the case disclose that the complainant, Onelia Pamittan, was a 17-year old high school student
at the Abulug School of Fisheries in Abulug, Cagayan at the time of he commission of the offense. She had a
friend, Eden Molina, who studied at the same school and lived about two (2) kilometers from the school.

In the afternoon of January 3, 1991, Eden invited some of her friends, including the complainant, over to her
house. When the group arrived at Eden's house, at about 4:30 p.m., the accused-appellant Roland Tacipit was
already there with Eden's brother, Elmer Molina, the latter being a friend and co-worker of the accused.
Previous to this meeting, the complainant already knew the accused since he lived only a few meters from her
home. She also knew the accused to be a married man.

After partaking of a snack of tinubong (native rice cakes), the group decided to go home. At this point, the
version given by the prosecution and the defense differed. According to the complainant, as she was about to
leave the Molina house, the accused restrained her, held her left hand and her notebooks and told her friends
to go ahead. Despite her cries and pleas for help, the owners of the house did nothing to help her. On the
other hand, defense witness Elmer Molina alleged that the complainant and the accused were sweethearts.
They left the house together, with their hands over each other's shoulders. At any rate, it is undisputed that
the complainant left the Molina household with the accused.
On the way, they passed through a coconut plantation of a certain Guillermo Agustin. By then, it was already
getting dark. There, the accused took hold of the wrists of the complainant and wrestled her down to the
ground. He tore off the T-shirt and skirt she was wearing and pinned her hands across her stomach. The
accused then removed her shorts and panty and ravished her. After the carnal act, the accused accompanied
the complainant to a point near her home and before leaving her, threatened to kill her or her family if she
reports the matter to anyone. The complainant, however, did not heed the warning and immediately upon
arriving at her house, reported the incident to her uncle, Ernesto Marantan, with whom she was residing.
Marantan looked for the accused that same evening, but after failing in his search, he reported the matter
instead to the barangay captain.

The following day, the complainant accompanied by her mother, aunt and cousin, reported the incident to the
police at the municipal building. She submitted her clothing for examination and after being investigated,
submitted herself for medical examination.

On January 5, 1991, the complainant executed a sworn statement narrating the circumstances surrounding
the commission of the crime and filed the corresponding complaint for rape. After a thorough investigation
which resulted in the finding of probable cause, the municipal trial court issued a warrant of arrest against the
accused.

On February 18, 1991, an information was filed by the Provincial Prosecutor against the accused, as follows:

The undersigned, Provincial Prosecutor, upon complaint filed by the offended party, Nelia T.
Pamittan, in the Municipal Trial Court of Abulug, Cagayan, appearing on page 1, the record of
the case, and forming an integral part of this Information, accuses Roland Tacipit y Manglapuz
of the crime of Rape, defined and penalized under Article 335, of the Revised Penal Code,
committed as follows:

That on or about January 3, 1991, in the municipality of Abulug, province of Cagayan and within
the jurisdiction of this Honorable Court, the said accused Roland Tacipit y Manglapuz, with lewd
design, by means of force, violence and intimidation, and with the use of deadly weapon, did
then and there wilfully, unlawfully and feloniously have sexual intercourse with the offended
party, Onelia T. Pamittan, a minor, seventeen (17) years of age, against her will and consent.

CONTRARY TO LAW. (Rollo, p, 7)

Upon arraignment, the accused pleaded not guilty.

As his defense, the accused claimed that he and the complainant were sweethearts since October 3, 1990 and
that the complainant voluntarily yielded herself to him. As proof of their relationship, the accused presented a
ring engraved with the name "Onelia" and alleged that it was given to him by the complainant as a token of
her love. Defense witness Elmer Molina corroborated the testimony of the accused, stating that he courted
the complainant but was spurned by her because she was already the accused's sweetheart.

On the other hand, these contentions were firmly denied by the prosecution. The complainant testified that
she knew the accused to be a married man and he never visited her house to court her. She also denied that
Elmer Molina courted her or that she told him that he was the accused's girlfriend. As for the ring, the
complainant denied ownership thereof. True enough, when the ring was tried on her hand, it was loose and
did not fit her finger (Rollo, p. 23).
The trial court, after consideration of the evidence presented, rendered the forequoted judgment against the
accused. Hence, the present appeal wherein the following assigned errors are raised:

THE TRIAL COURT ERRED 1N GIVING WEIGHT AND CREDENCE TO THE OTHERWISE DOUBTFUL
THEORY OF THE PROSECUTION AND IN DISREGARDING THAT OF THE DEFENSE.

II

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED

DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
(Rollo,
p. 56).

The defense argues that the weight of the evidence presented by the prosecution is grossly inadequate to
overthrow the presumption of innocence granted by law to the accused. It is the contention of the accused-
appellant that the testimony of complainant relied upon by the trial court in convicting him is incredible and
not worthy of belief. There are inconsistencies in said testimony. It is also saddled with flaws which show her
tendency to exaggerate things (Rollo, p. 61-64).

Secondly, the accused argues that the physical evidence as well as the actuations of the parties concerned are
not consistent with the allegation of rape but with carnal knowledge done with the consent of both the
accused and the complainant. As proof, the accused pointed out the lack of external injuries on the body of
the complainant. This fact negates the employment of force by the accused on the complainant and rules out
struggle or any other form of resistance on the part of the complainant.

The accused likewise points to the absence of an out cry on the part of the complainant which bolsters the
position of the accused that the sexual intercourse was consensual. The rationale given by the complainant
that she had a sore throat which prevented her from shouting was characterized by the defense as incredible.

Finally, the accused argues that if rape had indeed been committed by him, he would not have accompanied
the complainant to a place near her house, thereby exposing himself to the risk of being seen, but would have
instead fled for safety, which is more consistent with he commission of an offense.

In reviewing the evidence of this case, this Court was guided by the three(3) settled principles in reviewing
rape cases, namely, (1) an accusation for rape can be made with facility; it is difficult to prove but more
difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic nature of the crime
of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized
with extreme caution; (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be
allowed to draw strength from the weakness of the evidence for the defense (People vs. Lim, 206 SCRA 176
[1992]). On these bases, the decision of the trial court must be affirmed.

There is present in this case clear, convincing and competent physical and testimonial evidence to support a
finding of guilt beyond reasonable doubt against the accused. The testimony of complainant Onelia Pamittan,
was found by the trial court to be replete with details, negating the probability of fabrication. Although the
trial court did not accord credence to that part of her testimony relating to how she ended up leaving the
Molina household with the accused, the same did not militate against the credibility of the complainant as a
prosecution witness.
As far as alleged inconsistencies in her testimony are concerned, this Court has ruled time and again that a few
discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in
actuality touching upon the basic aspects of the whys and wherefores of the crime, do not impair their
credibility (People vs. Custodio, 197 SCRA 538 [1991] citing People vs. Muñoz, 163 SCRA 780]. This is especially
true in the crime of rape where the victim cannot be expected to remember with accuracy the details of her
humiliating experience. At best, this Court relies upon the fact that the trial court found the complainant to be
a credible witness. As often repeated by this Court:

. . . the matter of assigning values to declarations on the witness stand is best and most
competently performed by the trial judge, who, unlike appellate magistrates, can weigh such
testimony in the light of the declarant's demeanor, conduct and attitude at the trial and is
thereby placed in a more competent position to discriminate between the true and the false.
Appellate courts will not disturb the credence, or lack of it, accorded by the trial court of the
testimony of witnesses unless it be clearly shown that the latter court had overlooked or
disregarded arbitrarily the facts and circumstances of significance in the case (People vs.
Simbulan, 214 SCRA 537 [1992]).

The appeal at hand presents no compelling reason to deviate from this general rule.

Moreover, considering that the accused and the complainant are at most acquaintances, there appears to be
no motive on the part of the complainant to testify against the accused which could render suspect her
testimony in court. It is clear that her only intent was to seek redress for the injustice committed against her
by appellant — a married man. As held in People v. Guibao, (217 SCRA 64 [1993]):

No woman would concoct a story of defloration, allow an examination of herself by being

subjected to a public trial, if she was not motivated solely by the desire to have the culprit
apprehended and punished.

Anent the contention of the accused that the sexual act was committed with the mutual consent of the
parties, the evidence presented by the prosecution sufficiently rebutted his point.

For one, although there was an absence of external injuries on the body of the complainant, the clothes worn
by her at the time of the offense speak well of the use of force and the presence of a struggle. As the trial
court noted:

Her T-shirt was torn which corroborates her testimony that it was forcibly removed. It also
proves that she offered resistance to the criminal advances of the accused. Her shorts, like her
panty, had blood stains. Her panty was detached from her shorts. Her bra was torn, also
denoting that it was forcibly removed. These physical evidence . . . are consistent only with the
force and compulsion applied on her; they prove she offered resistance and her defloration was
against her will. (Rollo, p. 27)

The actuations of the complainant subsequent to the commission of the crime are likewise consistent with her
allegations of rape. Her immediate revelation of the incident to her uncle upon arrival as well as her swift
recourse to the barangay Captain and the police authorities are not acts of a woman savoring an illicit tryst but
that of a maiden seeking retribution for the outrage committed against her.

Thus, the accused's reliance on the defense that he and the complainant were lovers is unfounded. But even if
it were true, such relationship would not give the accused the license to deflower the complainant against her
will, and will not exonerate him from the criminal charge for rape. Furthermore, there is nothing in the
testimonies of either the complainant or even the accused himself which could indicate any sort of special
relationship between the two. The alleged proof of such relationship, the ring with complainant's name
engraved on it, does not even fit the fingers of the complainant. Their actuations with respect to each other
before, during and even after the commission of the crime were consistent with the contention of the
complainant that they are nothing more than acquaintances. The evidence of the prosecution, therefore,
completely negates the existence of any relationship between the accused and the complainant.

Finally, the accused's act of accompanying the complainant up to a point near her house does not appear to
be a gesture of love. If the accused was not obsessed with a sense of guilt, he could have accompanied the
complainant to the home since it was already dark at night. Rather than a demonstration of his freedom from
guilt, the actuation of the accused in the premises appears to be no less than a calculated move to ensure that
the complainant will keep her silence about the sordid incident perpetrated against her will.

WHEREFORE, the decision of the Regional Trial Court of Sanchez Mira, Cagayan, Branch 12, dated November
24, 1992 in Criminal Case No. 2190-S finding the accused-appellant Roland Tacipit guilty beyond reasonable
doubt of the crime of rape, and sentencing him to suffer the penalty of reclusion perpetua, with all the
accessory penalties, to pay the complainant Onelia Pamittan moral damages in the amount of fifty house and
pesos (P50,000.00) and to pay the costs, is hereby AFFIRMED IN TOTO.

SO ORDERED.

G.R. No. 16444           September 8, 1920

EMETERIA VILLAFLOR, petitioner,
vs.
RICARDO SUMMERS, sheriff of the City of Manila, respondent.

Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner.

Assistant City of Fiscal Felix for respondent.

MALCOLM, J.:

The petitioner prays that a writ of habeas corpus issue to restore her to her liberty.

The facts are not dispute. In a criminal case pending before the Court of First Instance of the city of Manila,
Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. On this case coming on for
trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the petitioner of the assistant fiscal for
the city of Manila, the court ordered the defendant Emeteria Villaflor, nor become the petitioner herein, to
submit her body to the examination of one or two competent doctors to determine if she was pregnant or
not. The accused refused to obey the order on the ground that such examination of her person was a violation
of the constitutional provision relating to self-incrimination. Thereupon she was found in contempt of court
and was ordered to be committed to Bilibid Prison until she should permit the medical examination required
by the court.

The sole legal issue from the admitted facts is whether the compelling of a woman to permit her body to be
examined by physicians to determine if she is pregnant, violates that portion of the Philippine Bill of Rights and
that portion of our Code of Criminal Procedure which find their origin in the Constitution of the United States
and practically all state constitutions and in the common law rules of evidence, providing that no person shall
be compelled in any criminal case to be a witness against himself. (President's Instructions to the Philippine
Commission; Act of Congress of July 1, 1902, section 5, paragraph 3; Act of Congress of August 29, 1916,
section 3; paragraph 3; Code of Criminal Procedure, section 15 [4]; United States Constitution, fifth
amendment.) Counsel for petitioner argues that such bodily exhibition is an infringement of the constitutional
provision; the representative of the city fiscal contends that it is not an infringement of the constitutional
provision. The trial judge in the instant case has held with the fiscal; while it is brought to our notice that a
judge of the same court has held on an identical question as contended for by the attorney for the accused
and petitioner.

The authorities are abundant but conflicting. What may be termed the conservative courts emphasize greatly
the humanitarianism of the constitutional provisions and are pleased to extend the privilege in order that its
mantle may cover any fact by which the accused is compelled to make evidence against himself. (Compare
State vs. Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey [1879], 14 Nev., 79. See further State vs. Ah
Nordstrom [1893], 7 Wash., 506; State vs. Height [1902]. 117 Iowa., 650; Thornton vs. State [1903], 117 Wis.,
338.) A case concordant with this view and almost directly in point is People vs. McCoy ([1873], 45 How. Pr.,
216). A woman was charged with the crime of infanticide. The corner directed two physicians to go to the jail
and examine her private parts to determine whether she had recently been delivered of a child. She objected
to the examination, but being threatened with force, yielded, and the examination was had. The evidence of
these physicians was offered at the trial and ruled out. The court said that the proceeding was in violation of
the spirit and meaning of the Constitution, which declares that "no person shall be compelled in any criminal
case to be a witness against himself." Continuing, the court said: "They might as well have sworn the prisoner,
and compelled her, by threats, to testify that she had been pregnant, and had been delivered of a child, as to
have compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to ascertain
whether she had been pregnant and been delivered of a child. . . . Has this court the right to compel the
prisoner now to submit to an examination they are of the opinion she is not a virgin, and has had a child? It is
not possible that this court has that right; and it is too clear to admit of argument that evidence thus obtained
would be inadmissible against the prisoner."

It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, greatly impressed
with the weight of these decisions, especially the one written by Mr. Justice McClain, in State vs. Height, supra,
the instant case was reported by the writer with the tentative recommendation that the court should lay
down the general rule that a defendant can be compelled to disclose only those parts of the body which are
not usually covered. Buth having disabused our minds of a too sensitive appreciation of the rights of accused
persons, and having been able, as we think, to penetrate through the maze of law reports to the policy which
lies behind the constitutional guaranty and the common law principle, we have come finally to take our stand
with what we believe to be the reason of the case.

In contradistinction to the cases above-mentioned are others which seem to us more progressive in nature.
Among these can be prominently mentioned decisions of the United States Supreme Court, and the Supreme
Court of these Islands. Thus, the always forward looking jurist, Mr. Justice Holmes, in the late case of Holt vs.
United States ([1910], 218 U. S., 245), in resolving an objection based upon what he termed "an extravagant
extension of the Fifth Amendment," said: "The prohibition of compelling a man in a criminal court to be a
witness against himself is a prohibition of the use of physical or moral compulsion to extort communications
from him, not an exclusion of his body as evidence when it may be material." (See also, of same general tenor,
decision of Mr. Justice Day in Adams vs. New York [1903], 192 U. S., 585.) The Supreme Court of the Philippine
Islands, in two decisions, has seemed to limit the protection to a prohibition against compulsory testimonial
self-incrimination. The constitutional limitation was said to be "simply a prohibition against legal process to
extract from the defendant's own lips, against his will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23
Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory principle announced in 16 Corpus
Juris, 567, 568, citing the United States Supreme Court and the Supreme Court of the Philippine Islands as
authority.)

Although we have stated s proposition previously announced by this court and by the highest tribunal in the
United States, we cannot unconcernedly leave the subject without further consideration. Even in the opinion
Mr. Justice Holmes, to which we have alluded, there was inserted the careful proviso that "we need not
consider how far a court would go in compelling a man to exhibit himself." Other courts have likewise avoided
any attempt to determine the exact location of the dividing line between what is proper and what is improper
in this very broad constitutional field. But here before us is presented what would seem to be the most
extreme case which could be imagined. While the United States Supreme Court could nonchalantly decree
that testimony that an accused person put on a blouse and it fitted him is not a violation of the constitutional
provision, while the Supreme Court of Nuevada could go so far as to require the defendant to roll up his sleeve
in order to disclose tattoo marks, and while the Supreme Court of the Philippine Islands could permit
substances taken from the person of an accused to be offered in evidence, none of these even approach in
apparent harshness an order to make a woman, possibly innocent, to disclose her body in all of its sanctity to
the gaze of strangers. We can only consistently consent to the retention of a principle which would permit of
such a result by adhering steadfastly to the proposition that the purpose of the constitutional provision was
and is merely to prohibit testimonial compulsion.

So much for the authorities. For the nonce we would prefer to forget them entirely, and here in the
Philippines, being in the agrreable state of breaking new ground, would rather desire our decision to rest on a
strong foundation of reason and justice than on a weak one blind adherence to tradition and precedent.
Moreover, we believe that an unbiased consideration of the history of the constitutional provisions will
disclose that our conclusion is in exact accord with the causes which led to its adoption.

The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in early days, but
not in the other legal systems of the world, in a revolt against the thumbscrew and the rack. A legal shield was
raised against odious inquisitorial methods of interrogating an accused person by which to extort unwilling
confessions with the ever present temptation to commit the crime of perjury. The kernel of the privilege as
disclosed by the textwriters was testimonial compulsion. As forcing a man to be a witness against himself was
deemed contrary to the fundamentals of republican government, the principle was taken into the American
Constitutions, and from the United States was brought to the Philippine Islands, in exactly as wide — but no
wider — a scope as it existed in old English days. The provision should here be approached in no blindly
worshipful spirit, but with a judicious and a judicial appreciation of both its benefits and its abuses. (Read the
scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p. 610 found in 4
Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.)

Perhaps the best way to test the correctness of our position is to go back once more to elements and ponder
on what is the prime purpose of a criminal trial. As we view it, the object of having criminal laws is to purgue
the community of persons who violate the laws to the great prejudice of their fellow men. Criminal procedure,
the rules of evidence, and constitutional provisions, are then provided, not to protect the guilty but to protect
the innocent. No rule is intemended to be so rigid as to embarrass the administration of justice in its endeavor
to ascertain the truth. No accused person should be afraid of the use of any method which will tend to
establish the truth. For instance, under the facts before us, to use torture to make the defendant admit her
guilt might only result in including her to tell a falsehood. But no evidence of physical facts can for any
substantial reason be held to be detrimental to the accused except in so far as the truth is to be avoided in
order to acquit a guilty person.
Obviously a stirring plea can be made showing that under the due process of law cause of the Constitution
every person has a natural and inherent right to the possession and control of his own body. It is extremely
abhorrent to one's sense of decency and propriety to have the decide that such inviolability of the person,
particularly of a woman, can be invaded by exposure to another's gaze. As Mr. Justice Gray in Union Pacific
Railway Co. vs. Botsford ([1891], 141 U. S., 250) said, "To compel any one, and especially a woman, to lay bare
the body, or to submit to the touch of a stranger, without lawful authority, is an indignity, an assault, and a
trespass." Conceded, and yet, as well suggested by the same court, even superior to the complete immunity of
a person to be let alone is the inherent which the public has in the orderly administration of justice.
Unfortunately, all too frequently the modesty of witnesses is shocked by forcing them to answer, without any
mental evasion, questions which are put to them; and such a tendency to degrade the witness in public
estimation does not exempt him from the duty of disclosure. Between a sacrifice of the ascertainment of truth
to personal considerations, between a disregard of the public welfare for refined notions of delicacy, law and
justice cannot hesitate.

The protection of accused persons has been carried to such an unwarranted extent that criminal trials have
sometimes seemed to be like a game of shuttlecocks, with the judge as referee, the lawyers as players, the
criminal as guest of honor, and the public as fascinated spectators. Against such a loose extension of
constitutional guaranties we are here prepared to voice our protest.

Fully conscious that we are resolving a most extreme case in a sense, which on first impression is a shock to
one's sensibilities, we must nevertheless enforce the constitutional provision in this jurisdiction in accord with
the policy and reason thereof, undeterred by merely sentimental influences. Once again we lay down the rule
that the constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against
himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the
proposition is that, an ocular inspection of the body of the accused is permissible. The proviso is that torture
of force shall be avoided. Whether facts fall within or without the rule with its corollary and proviso must, of
course, be decided as cases arise.

It is a reasonable presumption that in an examination by reputable and disinterested physicians due care will
be taken not to use violence and not to embarass the patient any more than is absolutely necessary. Indeed,
no objection to the physical examination being made by the family doctor of the accused or by doctor of the
same sex can be seen.

Although the order of the trial judge, acceding to the request of the assistant fiscal for an examination of the
person of the defendant by physicians was phrased in absolute terms, it should, nevertheless, be understood
as subject to the limitations herein mentioned, and therefore legal. The writ of habeas corpus prayed for is
hereby denied. The costs shall be taxed against the petitioner. So ordered.

Mapa, C.J., Araullo, Avanceña, Moir and Villamor, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I concur.
I think, however, that the scope of our ruling in this matter should be expressly limited, in positive and definite
terms, so as to make it clear that the examination of the person of the accused shall not be carried beyond a
mere ocular inspection, wherein the use of instruments or of physical force upon the person of the accused
would be prohibited.

G.R. No. L-61356-57 September 30, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FELICISIMO JARA, REYMUNDO VERGARA and ROBERTO BERNADAS, defendants-appellants.

GUTIERREZ, JR., J.:

We are once again constrained to take a hard look into the sufficiency of extra-judicial confessions as the sole
basis for the imposition of the supreme penalty of DEATH.

The three appellants were all sentenced to death in Criminal Case No. 2564 for robbery with homicide. In the
companion case of parricide, one was sentenced to another death penalty while the two other appellants
received sentenced ranging from 12 to 20 years of imprisonment.

Our task is made difficult by the fact that the crimes were specially ruthless and barbarous in their
commission. No less than the counsel for the appellants states that the people of Puerto Princesa are no
strangers to crime and that the frequency of criminal acts in their city has somehow benumbed the
sensibilities of its citizens. Yet, the discovery on June 9, 1978 of the brutally and badly bashed corpses of two
well-known and loved women of their community was still shocking to their senses.

There is the added factor that the police officers who investigated the crime and secured the confessions
seemed so certain that indeed the three appellants are the malefactors. The confessions are convincing in
their details. The trial court noted that "both victims were assaulted and killed with the might and fury of one
really who had harbored so long a grudge and hate" and only Felicisimo Jara had that kind of ill-will against his
estranged wife and her female companion. Moreover, Jara, a recidivist for the crime of homicide, was
characterized as an experienced killer. There must be many residents of Puerto Princesa who are thus
convinced about the correct solution of the crime. And perhaps, the appellants could have been the killers.

The function of this Court, however, is not to indulge in surmises or probabilities. The issue before us is
whether or not the evidence of guilt is admissible under the standards fixed by the Constitution and if the
quantum of proof, which we are allowed by the Constitution to consider, establishes guilt beyond reasonable
doubt.

The decision of the former Court of First Instance of Palawan, 7th Judicial District, Branch 1 in the consolidated
cases of People of the Philippines versus Felicisimo Jara, et al. (Criminal Case No. 2564) for Robbery with
Homicide and People of the Philippines vs. Felicisimo Jara, et al. (Criminal Case No. 2565) for Parricide is
involved in this automatic review. All the three accused in Criminal Case No. 2564 were sentenced to suffer
the maximum penalty of death, to indemnify jointly and severally the heirs of the deceased Amparo Bantigue
in the sum of Pl,000.00, the amount stolen, and the sum of P12,000.00. In Criminal Case No. 2565, for the
killing of Luisa Jara, accused Felicisimo Jara was found guilty beyond reasonable doubt of the crime of
parricide and meted out the maximum penalty of death while the two other accused were found guilty of
homicide and sentenced to suffer an indeterminate penalty of twelve (12) years of prision mayor as minimum
to twenty (20) years of reclusion temporal as maximum. All the accused were ordered to indemnify jointly and
severally the heirs of Luisa Jara in the sum of P12,000.00.

The information for the crime of robbery with homicide in Criminal Case No. 2564 reads as follows:

That on or about the 9th day of June, 1978, about 1:30 o'clock in the morning, at Malvar St.,
Puerto Princesa City, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together and mutually helping each other, with
intent to kill, evident premeditation and treachery, after gaining entrance to the house thru the
window, an opening not intended for entrance or egress, did then and there wilfully, unlawfully
and feloniously strike with a hammer Amparo Vda. de Bantigue hitting her on the vital parts of
her body and stab with a scissor while she was soundly sleeping in her bedroom with one Luisa
Jara, thereby causing her instantaneous death as a result thereof, and that after killing Amparo
Vda. de Bantigue, accused in conspiracy with each other, with intent to gain and without the
consent of the owner thereof, took, stole and carried away a piggy bank and a buddha bank
containing money in the amount of not more than P200.00, to the damage and prejudice of the
heirs of Amparo Vda. de Bantigue, in the total amount of TWELVE THOUSAND TWO HUNDRED
PESOS (P12,200.00) Philippine Currency.

CONTRARY TO LAW and committed with aggravating circumstances of Recidivism with respect
to accused Felicisimo Jara, the latter having been previously convicted of the crime of homicide
in the Court of First Instance of Iloilo, and the aggravating circumstance against all the accused
that the crime was committed with treachery, in the dwelling of the offended party, in the
nighttime, and with respect to accused Reymundo Vergara and Roberto Bernadas, for having
participated in the commission of the crime in consideration of a prize or reward.

In Criminal Case No. 2565, the information charged the accused as follows:

That on or about June 9, 1978, at about 1:30 o'clock in the morning, at Malvar St., Puerto
Princesa City, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping each other with intent to
kill, treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously
strike several times, with a hammer one Luisa Jara, who is the lawfully wedded wife of accused
Felicisimo Jara, and thereafter, stabbed her with a scissor in her chest and abdomen, while the
latter was soundly sleeping with one Amparo Vda. de Bantigue, resulting to the instantaneous
death of said Luisa Jara, to the damage and prejudice of the heirs of said Luisa Jara in the
amount of TWELVE THOUSAND (P12,000.00) PESOS, Philippine Currency,

CONTRARY TO LAW and committed with the aggravating circumstances of Recidivism with
respect to accused Felicisimo Jara, the latter having been previously convicted of the crime of
homicide in the CFI of Iloilo, and the aggravating circumstance against all the accused, namely:
(1) that the crime was committed in the dwelling of the offended party, (2) in the nighttime, (3)
and treachery; and the aggravating circumstance against accused Reymundo Vergara and
Roberto Bernadas of having participated in the commission of the crime in consideration of a
prize or reward.
All the accused pleaded not guilty during the arraignment. On motion by the prosecution and the defense, the
court a quo ordered a joint trial of the two cases which arose from one incident and where the witnesses are
the same.

The facts according to the prosecution are as follows:

At about 6:00 o'clock in the early morning of June 9, 1978, the waitresses at Alvin's Canteen
situated in Malvar Street, Puerto Princesa City, wondered why their employer, the deceased
Amparo Bantigue, did not answer when they called at her door that morning (p. 7, TSN, March
21, 1979). They went to the kitchen and peeped through a hole. They saw Amparo and Luisa
Jara seemingly asleep. They again went to the door and knocked but still no answer came. The
waitresses called one of Luisa Jara's waitresses at Aileen's canteen next door. Becoming
apprehensive, they went back to the kitchen for a second look. They discovered the following- .
Amparo and Luisa were both lying in bed; Luisa was dressed only in her underwear and there
was dried blood in one of her hands; Amparo, seemingly asleep, lay beside her (pp. 9-11, TSN,
March 21, 1979). Finally, they decided to inform Luisa's daughter, Minerva, about their
apprehension. When they met Minerva at the public market, she tearfully accompanied them
back to Amparo's room. When no one answered their knocking, Minerva kicked open the door.
(pp. 11-12, TSN, March 21, 1979). Inside, they found the two women dead from wounds
inflicted on their persons (p. 13, TSN, March 21, 1979).

The husband of Luisa, appellant Felicisimo Jara, then entered the room and saw the condition
of the victims (p. 15, TSN, March 21, 1979).

Inside the room, several ceramic piggy banks belonging to Amparo containing coins estimated
in the amount of P1,000.00 were missing (p. 43, TSN, February 6, 1979). Scattered underneath
the window of Amparo's bedroom were coins and bits and pieces of what used to be ceramic
piggy banks (Exh. F; pp. 17-20, TSN' Feb. 6, 1979).

Later, two suspects in the killing, appellants Reymundo Vergara and Roberto Bernadas. were
apprehended (pp. 59-60, TSN, March 19, 1979). After investigation, they confessed their guilt to
the Provincial Commander of the Philippine Constabulary in Palawan and other police
investigators (pp. 26-31, TSN, May 28, 1979). They also positively Identified appellant Felicisimo
Jara as the mastermind who had plotted the killing and who promised them a fee of P1,000.00
each for their participation (Exhibits O and N). Before the City Fiscal and First Assistant Fiscal of
Puerto Princesa City, respectively, appellants Vergara and Bernadas subscribed and swore to
their extra-judicial statements wherein they narrated their role and that of Felicisimo Jara in the
killing (see Exhibits O and N).

Thereafter, the killing was reenacted before the military authorities and the public, with
appellants Vergara and Bernadas participating (p. 14, TSN, July 19, 1979).

The autopsy reports (Exhibits "A" and "C") submitted by Dr. Rufino Ynzon, the City Health Officer of Puerto
Princesa on the examination of the cadavers of the deceased victims indicate that death in both cases resulted
from "hemorrhage, intra-cranial secondary to multiple comminuted-depressed fracture of the cranial bones."
Amparo Bantigue's wounds were described as follows:

POST MORTEM FINDINGS

 1. Wound, macerated, roughly oval in shape, about 1 l/4 inches in length with depressed-
comminuted fracture of the underlying bone located at the forehead, right, upper portion.

2. Wound, macerated, roughly oval in shape, about 1 1/3 inches in length, with depressed-
comminuted fracture of the underlying bone located at the forehead, central portion.

3. Wound, macerated, roughly circular in shape, about 1 1/5 inches in length with depressed-
comminuted fracture of the underlying bone located at the forehead, medially to the left
eyebrow.

4. Wound, macerated, roughly triangular in shape with depressed -comminuted fracture of the
underlying bone located above the left eyebrow. 5. Wound, macerated, elongated with fracture
of the alveolar bone, located at the upper lip, central portion.

6. Wound, macerated, elongated, about 31/2 inches in length with depressed-comminuted

fracture of the underlying bone with brain tissue coming out located at the left parieto
temporal region.

7. Wound, macerated, elongated, about 21/2 inches in length with depressed-comminuted

fracture of the underlying bone located at the left temporal region, anterior portion.

8. Wound, macerated, elongated, about 2 inches in length, with depressed-comminuted

fracture of the underlying bone, located at the left face.

9. Wound, macerated, roughly oval in shape, about 2 inches in length, with depressed-
comminuted fracture of the underlying bone, located at the right temporal region.

10. Wound, macerated, elongated, about 2 inches in length with depressed-comminuted

fracture of the underlying bone located at the right face.

11. Wound, stabbed, about an inch in length at the right chest, between the 3rd and 4th
intercostal space, penetrating the thoracic cavity involving the right lung.

12. Wound, stabbed, about 1 inch in length, located at the chest, central portion, penetrating
the sternum, then thoracic cavity piercing the right auricle, heart.

13. Wound, stabbed, about 1 inch in length, located at the right upper abdomen penetrating
the abdominal cavity involving the liver and stomach. (Exhibit "A").

CAUSE OF DEATH: HEMORRHAGE INTRA-CRANIAL SEC. TO MULTIPLE COMMINUTED-

DEPRESSED FRACTURE OF THE CRANIAL BONES."

On the other hand, Luisa Jara suffered from the following wounds:

POST MORTEM FINDINGS

1. Wound,macerated,roughly circular in shape,about 1 1/2 inches in diameter with depressed-

comminuted fracture of the underlying bones, located at the right frontal region.
2. Wound, macerated, with a letter T shape, about 2 inches in length, with depressed-
comminuted fracture of the underlying bone, located at the central portion of the frontal
region.

3. Wound, macerated, roughly triangular in shape, about 1 1/2 inches in length with depressed-
comminuted fracture of the underlying bone, located at the right side of the nose.

4. Wound, macerated, roughly elongated in shape, about 1 inch in length, with depressed-
comminuted fracture of the underlying bone, located at the left eyebrow, lateral portion.

5. Wound, macerated, roughly oval in shape, about 2 inches in length, with depressed-
comminuted fracture of the underlying bone, located at the left lateral portion of the forehead.

6. Wound, macerated, roughly oval in shape, about 2 inches in length, with depressed-
comminuted fracture of the underlying bone, located at the parietal region, left.

7. Wound, macerated, roughly elongated in shape about 1 inch in length with depressed-
comminuted fracture of the underlying bone, located at the temporal region, left.

8. Wound, macerated, roughly elongated in shape, about 11/2 inches in length with depressed-
comminuted fracture of the underlying bone, located at the temporal region, left.

9. Wound, macerated, roughly stellate in shape, about 2 inches in length, with depressed-
comminuted fracture of the underlying bone, located at the left mandibular region.

10. Wound, macerated, roughly oval in shape, about 1 l/2 inches in length, with depressed-
comminuted fracture of the underlying bone, located at the left face.

11. Wound,incised,about l 3/4 inches in length, located at the left upper portion of neck, left
side.

12. Wound, macerated, roughly elongated in shape, about 3 inches in length with depressed-
comminuted fracture of the underlying bone, located at the right temporal region.

13. Contusion with hematoma, circular in shape, located laterally from the right eyebrow.

14. Wound, macerated, roughly elongated in shape about 2 inches in length with depressed-
comminuted fracture of the underlying bone, located at the occipital region, upper portion.

15. Wound, stabbed, about 1 inch in length, located at the chest, central portion penetrating
inside the thoracic cavity involving heart and lung.

16. Wound, stabbed, about 1 inch in length, located at the level of typhoid process penetrating
the thoracic cavity involving the right lung, lower lobe. (Exhibit "C")

CAUSE OF DEATH: HEMORRHAGE, INTRA-CRANIAL SEC. TO MULTIPLE COMMINUTED-

DEPRESSED FRACTURE OF THE CRANIAL BONES.
Felicisimo Jara denied the charge that he was the one who killed his wife, Luisa, together with her friend,
Amparo Bantigue. He interposed alibi as a defense and testified that at the time the killings took place at
Alvin's Canteen at Malvar Street, Puerto Princesa City, he was fast asleep with his grandchildren at his step-
daughter's house in Pineda Subdivision. The other accused, Reymundo Vergara and Roberto Bernadas
retracted their respective extra-judicial confessions admitting their participation in the crimes charged and
Identifying their mastermind" as the accused Jara during proceedings before the Inquest Fiscal. They
contested the admissibility of the extra-judicial confessions and the subsequent re- enactment of the crime on
the ground that their participations in these occasions were not free and voluntary and were without the
benefit of counsel.

The court below ruled that the extra-judicial confessions of the accused Bernadas and Vergara (Exhibits "N"
and "O", respectively), together with the proof of corpus delicti of the special crime of robbery with homicide
established the guilt of the accused beyond moral certainty.

In their brief, the accused-appellants contended that the court a quo erred:

IN CONVICTING THE ACCUSED DESPITE THE UTTER ABSENCE OF ANY KIND OF EVIDENCE,
DIRECT OR CIRCUMSTANTIAL.

II

IN ADMITTING THE ALLEGED EXTRA-JUDICIAL CONFESSIONS OF ACCUSED-APPELLANTS

REYMUNDO VERGARA AND ROBERTO BERNADAS WHICH WERE TAKEN THRU FORCE AND
WITHOUT BENEFIT OF COUNSEL.

III

IN ADMITTING THE ALLEGED EXTRA-JUDICIAL CONFESSIONS OF ACCUSED-APPELLANTS

REYMUNDO VERGARA AND ROBERTO BERNADAS AGAINST THEIR CO-ACCUSED-APPELLANT
FELICISIMO JARA.

IV

IN FINDING THE PRESENCE OF CONSPIRACY DESPITE THE ABSENCE OF PROOF THEREOF.

IN ALLOWING THE PLAYING OF AN ALLEGED TAPED CONFESSION.

VI

IN ADMITTING THE PICTURES, EXHS. "T" TO "T- 23", WHICH WERE NEVER PROPERLY
IDENTIFIED.

All these assigned errors boil down to the issue of whether or not there is sufficient evidence as borne by the
records to establish the guilt of the accused beyond reasonable doubt.
Section 20, Article IV of the Constitution provides:

No person shall be compelled to be a witness against himself. Any person under investigation
for the commission of an offense shall have the right to remain silent and to counsel, and to be
informed of such right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in violation of this
section shall be inadmissible in evidence.

There is no dispute that the confessions in these cases were obtained in the absence of counsel. According to
the records, there was a waiver by the accused-appellants of their right to counsel.

Was the waiver valid?

We are constrained to answer this question in the negative.

Before the extrajudicial confession of appellant Bernadas was reduced to writing, Pfc. Henry E. Pulga, in the
presence of four other police officers, made the following "Pasubali" followed by the answer, "Opo":

PASUBALI: Ikaw ay nasa ilalim ng isang pagsisiyasat at dahil dito ay ipinababatid

namin sa iyo ang iyong mga karapatan na sa ilalim ng ating Bagong Saligang
Batas ay ikaw ay may karapatang kumuha ng isang manananggol o abogado ayon
sa sarili mong pili mayroon ka ring karapatan na hindi maaaring piliting sumagot
sa anumang itatanong sa iyo sa alinmang Hukuman sa Pilipinas. Nauunawaan mo
ba ang lahat ng mga ipinaliwanag namin sa iyo ngayon?

SAGOT: Opo.

Likewise, in the case of the accused Vergara, the foreword of Ms signed sworn statement reads:

TANONG: Marunong po ba kayong sumulat bumasa ng tagalog at umunawa ng

wikang tagalog na siya nating gagamitin sa pagsisiyasat na ito?

SAGOT: Nakakaunawa po ako at nakakabasa pero sa pagsulat ay hindi masyado.

PALIWANAG: Kung gayon po ay ipinababatid ko sa inyo ang inyong karapatan na

kayo ay maaaring manatiling tahimik kung inyong nais, magbigay o tumangging
magbigay ng inyong salaysay, maaari din na kayo ay sumangguni muna sa isang
abogado kung nais ninyo at ang lahat po ng inyong sasabihin ay maaaring
gamiting pabor o laban sa inyo sa anumang Hukuman dito sa ating kapuluan
ngayong alam na ninyo ang ilan sa inyong karapatan kayo po ba naman ay handa
na ngayong magsalaysay kahit na kayo ay wala pang abogadong kaharap na
siyang mangangalaga sa inyong karapatan at lahat po ng inyong sasabihin ay
pawang katutuhanan lamang

SAGOT: Opo.

(SGD.) REYMUNDO VERGARA

DELA CRUZ
 PATUNAY: Ako si Reymundo Vergara dela Cruz ay nagsasaad na ipinaalam sa akin
ang aking karapatang manatiling tahimik, kung aking nanaisin, na ang lahat na
aking sasabihin ay maaaring gamiting pabor o laban sa akin at nalaman ko rin na
ako ay maaaring kumuha ng sarili kong abogado na siyang nangangalaga ng aking
karapatan na kung hindi ko kayang kumuha ay bibigyan ako ng pamahalaan.

Nauunawaan ko ang mga karapatang ito, handa at kusang loob akong nagbibigay
ng aking salaysay ngayon, sa tanong at sagot na paraan. Hindi ko na kailangan
ang tulong ng isang abogado, nauunawaan ko ang aking ginagawa, walang
pananakot, pananakit, pangako, pabuya o anuman na ginawa sa akin upang ako
ay magsalaysay. Ito ay sarili kong kagustuhan.

(SGD.) REYMUNDO VERGARA

DELA CRUZ

This stereotyped "advice" appearing in practically all extrajudicial confessions which are later repudiated has
assumed the nature of a "legal form" or model. Police investigators either automatically type it together with
the curt "Opo" as the answer or ask the accused to sign it or even copy it in their handwriting. Its tired,
punctilious, fixed, and artificially stately style does not create an impression of voluntariness or even
understanding on the part of the accused. The showing of a spontaneous, free, and unconstrained giving up of
a right is missing.

Whenever a protection given by the Constitution is waived by the person entitled to that protection, the
presumption is always against the waiver. Consequently, the prosecution must prove with strongly convincing
evidence to the satisfaction of this Court that indeed the accused willingly and voluntarily submitted his
confession and knowingly and deliberately manifested that he was not interested in having a lawyer assist him
during the taking of that confession. That proof is missing in this case.

The records sustain the appellants' contention that their extrajudicial confessions bear clear earmarks of
illegality and improbability.

The Solicitor General gives the following arguments for voluntariness:

An extra-judicial confession is generally presumed to have been voluntarily executed (People v.

Castañeda, 93 SCRA 56). The confessant carries the burden of convincing the trial judge that his
admissions are involuntary or untrue (People v. Ramos, 94 SCRA 842).

The trial court in this case was not convinced that the extrajudicial confessions of appellants
were made involuntarily. Consider the following reasons for the court's refusal to lend credence
to appellants' claim:

(1) Apart from appellants' self-serving claim no other evidence on record supports the
allegation of involuntariness (People v. Villa, 93 SCRA 716).

(2) On the contrary, several prosecution witnesses testified that the confessions were
voluntarily given.
 (3) Appellants' oral and written confessions given at various times to several investigating
authorities, not to mention the public re-enactment of the crime itself, did not vary and they
revealed details only the assailants could have possibly known (People v. Ty Sui Wong, 83 SCRA
125; People v. Bautista y Aquino, 92 SCRA 465).

(4) Appellants' confessions were corroborated by the existence of corpus delicti established by

independent evidence (People v. Francisco, 93 SCRA 351).

(5) The claim of coercion cannot prevail over the testimony of the subscribing fiscal that said
confession was voluntary (People v. Caramonte, 94 SCRA 150).

The People v. Castañeda ruling applies to a crime committed before the Bill of Rights was amended to include
Section 20 on the right to remain silent and to counsel and to be informed of such right. The presumption that
"no one would declare anything against himself unless such declarations were true" assumes that such
declarations are given freely and voluntarily. The new Constitution, in expressly adopting the so-
called Miranda v. Arizona (384 U.S. 436) rule, has reversed the presumption. The prosecution must now prove
that an extrajudicial confession was voluntarily given, instead of relying on a presumption and requiring the
accused to offset it. There would have been no need to amend the centuries old provisions of the Bill of Rights
and to expressly add the interdiction that "no force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him (the person being investigated)" if the framers intended us to
continue applying the pre-1973 or pre-amendment presumptions.

Miranda v. Arizona, in explaining the rule which the U.S. Supreme Court adopted, states:

While the admissions or confessions of the prisoner, when voluntarily and freely made, have
always ranked high in the scale of incriminating evidence, if an accused person be asked to
explain his apparent connection with a crime under investigation, the ease with which the
questions put to him may assume an inquisitorial character, the temptation to press the
witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner and to
entrap him into fatal contradictions, which is so painfully evident . . . made the (continental)
system so odious as to give rise to a demand for its total abolition.

It is natural and to be expected that the police officers who secured the confessions in these cases should
testify that the statements were voluntarily given. However, the records show that the interrogations were
conducted incommunicado in a police-dominated atmosphere. When appellant Bernadas gave his confession,
his companions in the room were five police officers. The only people with Vergara when he confessed were
also police investigators.

We quote some more passages from Miranda:

Again we stress that the modern practice of in-custody interrogation is psychologically rather
than physically oriented. As we have stated before, 'Since Chambers v. Florida, 309, US 227 [84
L ed 716, 60 S Ct 472], this Court has recognized that coercion can be mental as well as physical,
and that the blood of the accused is not the only hallmark of an unconstitutional
inquisition.' Blackburn v. Alabama, 361 US 199, 206, 4 L ed 2d 242, 247, 80 S Ct 274 (1960).
Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a
gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source
of information about present police practices, however, may be found in various police manuals
and texts which document procedures employed with success in the past, and which
 recommend various other effective tactics. These texts are used by law enforcement agencies
themselves as guides. It should be noted that these texts professedly present the most
enlightened and effective means presently used to obtain statements through custodial
interrogation. By considering these texts and other data, it is possible to describe procedures
observed and noted around the country.

The officers are told by the manuals that the 'principal psychological factor contributing to a
successful interrogation is privacy-being alone with the person under interrogation.' The
efficacy of this tactic has been explained as follows:

If at all practicable, the interrogation should take place in the investigator's office or at least in a
room of his own choice. The subject should be deprived of every psychological advantage. In his
own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights
and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home.
Moreover his family and other friends are nearby, their presence lending moral support. In his
own office, the investigator possesses all the advantages. The atmosphere suggests the
invincibility of the forces of the law.

To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display
an air of confidence in the suspect's guilt and from outward appearance to maintain only an
interest in confirming certain details. The guilt of the subject is to be posited as a fact. The
interrogator should direct his comments toward the reasons why the subject committed the
act, rather than court failure by asking the subject whether he did it. Like other men, perhaps
the subject has a bad family life, had an unhappy childhood, had too much to drink, had an
unrequited desire for women. The officers are instructed to minimize the moral seriousness of
the offense, to cast blame on the victim or on society. These tactics are designed to put the
subject in a psychological state where his story is but an elaboration of what the police purport
to know already-that he is guilty. Explanations to the contrary are dismissed and discouraged.

The texts thus stress that the major qualities an interrogator should possess are patience and
perseverance. One writer describes the efficacy of these characteristics in this manner:

In the preceding paragraphs emphasis has been placed on kindness and stratagems. The
investigator wilt however, encounter many situations where the sheer weight of his personality
wig be the deciding factor. Where emotional appeals and tricks are employed to no avail he
must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily
and without relent, leaving the subject no prospect of surcease. He must dominate his subject
and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a
spell of several hours pausing only for the subject's necessities in acknowledgment of the need
to avoid a charge of duress that can be technically substantiated. In a serious case, the
interrogation may continue for days, with the required intervals for food and sleep, but without
respite from the atmosphere of domination. It is possible in this way to induce the subject to
talk without resorting to duress or coercion. The method should be used only when the guilt of
the subject appears highly probable. ' " (384 US at pp. 448-451)

The cited police manuals state that the above methods should be used only when the guilt of the subject
appears highly probable. As earlier stated, the investigators in the cases now before us appear to have been
convinced that the accused-appellants were the culprits. Nonetheless, the evils of incommunicado
interrogations without adequate safeguards to insure voluntariness could still result in the conviction of
innocent persons. More important, what the Constitution commands must be obeyed even at the risk of
letting even hardened criminals mix once more with the law-abiding world.

As to the re-enactment, the extra-judicial-confessions served as a script for what was to follow. Pictures re-
enacting a crime which are based on an inadmissible confession are themselves inadmissible.

There are other factors to be considered in these cases. Vergara and Barnadas had been detained for more
than two (2) weeks before they decided to give "voluntary" confessions. We doubt if it was two weeks of soul-
searching and introspection alone which led them to confess. There must have been other persuasions.

There were two sensational murder cases in Palawan which preceded the killings now before us, The PC
command and the Integrated National Police were under pressure to "solve" these additional sensational
killings.

The counsel for appellants mentions a factor not refuted by the appellee in its brief, namely:

LT. COL. SABAS IMBONG, SGT. EUGENIO ENRIQUEZ, PFC HENRY PULGA and CPL. ADOLFO
JAGMIS — all are connected with the Provincial Constabulary Command which investigated the
case, prematurely publicized the solution of the case with the alleged 'extra-judicial
confessions' of two (2) accused, but who were rebuffed when the two (2) accused, upon the
first opportunity to do so in public, which was the preliminary investigation, recanted and
retracted their alleged 'extra-judicial confessions' as they were taken with the use of force,
violence, and intimidation, was prepared by the investigators themselves, and without benefit
of counsel.

All are comrades in-arms of Pat. Mamerto Bantigue, who is the son of the deceased Amparo
Bantigue. Pat. Bantigue was implicated in several coercion and physical injuries cases filed with
the City Court by persons who had been physically attacked and violated by him in connection
with the murder of his mother. Likewise, he evaded justice by escaping from the law after
murdering a companion of accused Jara and attempting to kill the latter. He remains at large.

A PC Sergeant, Oscar Ponce de Leon, assigned at the PC Medical Dispensary, testified that he treated Roberto
Bernadas for cigarette burns and Reymundo Vergara for a wound at the tip of his right hand. While the
medicine he applied was only merthiolate the possibility cannot be discounted that in addition to the
psychological qqqplosy of incommunicado questioning, lighted cigarettes and other means of persuasion
which leave physical marks were also utilized to secure the confessions.

Accused Reymundo Vergara was given an opportunity to go qqqscot free by turning state witness. He refused.

Apart from their extra-judicial confessions, no other evidence to implicate Bernadas and Vergara as
perpetrators of the killing was introduced by the prosecution. Since these confessions are inadmissible in
evidence, the two appellants have to be acquitted.

The strongest evidence against Felicisimo Jara are the extra-judicial confessions of his two co-accused.
Bernadas and Vergara point to Jara as the one who bludgeoned the two victims with a hammer and then used
a pair of scissors in inflicting the stab wounds. He was also alleged to have offered them P1,000.00 each if they
would help him in the killing of his wife.
However, since the confessions of Bernadas and Vergara are inadmissible against them, with more reason can
they not be used against Jara.

Apart from the above extra-judicial confessions, other circumstantial evidence was presented to support a
verdict of conviction. Would such evidence in the absence of the extrajudicial confessions be sufficient to
overturn the presumption of innocence in favor of the accused Jara?

Evidence attesting to the fact that accused Jara and his wife had not been in good terms for about three years
before the killings was presented. They used to quarrel with each other and they had not been sleeping
together since the deceased Luisa Jara slept at Alvin's Canteen together with the other deceased Amparo
Bantigue. Godofredo Anasis nephew of Luisa Jara, testified that his aunt was a "tomboy" and that she and
Amparo Bantigue lived together as "husband and wife." The two went to the movies together. The
relationship of the two women angered Felicisimo Jara and was a cause of their frequent quarrels. He
resented not only his wife but also her woman companion.

The testimony on the fact of Luisa Jara and Amparo Bantigue sleeping together is corroborated by the fact that
they were bludgeoned to death while sleeping on one bed and their bodies discovered on that same bed. At
the Aileen's Canteen managed by the deceased Luisa, accused Felicisimo Jara did the cooking and whenever
he committed even the slightest mistakes, his wife scolded and cursed him, treating him as though he were
only one of the servants of the restaurant. (TSN, May 31, 1979, pp. 1821-1830). The records are replete with
testimony to show that Felicisimo Jara had reason to hate his wife enough to kill her and her companion.

The lower court, in its decision, stated that the nature and the number of wounds, reflected in the autopsy
reports, convincingly show that only a person who had harbored so much hate and resentment could have
inflicted such multiple fatal blows. It opined that accused Jara is the only person who would have sufficient
motive to wish the death of the deceased for he had not been treated well as a husband by his wife.

During the investigation at the scene of the crime, blood stains were found splattered in the trousers and shirt
worn by accused Jara. His eyeglasses were also smeared with blood. When asked to explain the presence of
said blood stains, accused Jara told the police that before he learned about the killing, he was with his
stepdaughter Minerva Jimenez in the public market dressing chickens. (TSN, May 28, 1979, pp. 397398) He
also said in his testimony in open court that when he saw his wife lying dead on the bed, he approached her
and hugged her in his effort to wake her up. (TSN, September 30, 1980, p. 1230) After a laboratory
examination of the eyeglasses (Exhibit "I"), trousers (Exhibit "J"), and shirt (Exhibit "K"), the NBI biologist
verified in her report that the blood stains were not chicken blood but human blood (Exhibit "L"). The blood
stains found in accused Jara's trousers formed certain Identical circular patterns, a splattering of blood which,
according to the NBI biologist, could be caused by an instrument like that of a hammner. Such circular patterns
will only occur at the time of the impact of the instrument, the very moment it hits the victim. He further
explained that there was no possibility of the splattering of blood if the victim died hours before because
blood starts to coagulate or clog 15 minutes after the wound is caused. (TSN, March 19, 1979, pp. 227; 244;
248-250) The blood of the deceased victims in the case at bar had already qqqcoagulated in the morning of
June 9, 1978 when accused Jara claimed that the blood stains on his shirt were smudged when he hugged his
wife.

The NBI biologist, whose findings were later signed by the Chief of the Forensic Chemistry Division testified
that human blood was found on the eyeglasses of appellant Jara, on the front side lower portion of the left leg
of the trousers, at the left buttocks of the pants and the back portion near the trousers, and smudged human
blood stains on the appellant's T-shirt. The human blood stains were Type B. A failure to get evidence on the
blood types of the two victims keeps this second circumstantial evidence, together with the clear motive, from
being well-nigh conclusive. However, it is still strong evidence in the chain of circumstances pointing to Jara as
the killer of his wife.

Another circumstance is the cover-up attempt by Jara. He lied about the blood on his clothes and eyeglasses.
He falsely claimed that the blood came from the chickens he had been slaughtering for the market. There is no
explanation about the source and cause of the human blood stains splattered all over him.

There is no question that appellant Jara was at the scene of the crime. Upon the discovery of the bodies 'and
the forcible opening of the door, Jara was with the group. He went through the motions of embracing his wife
although the observers noted that even in death there was no love lost between husband and wife. One of the
waitresses at the Alvin's Canteen who saw accused Jara's reaction as he entered the room where the victims
lay dead observed that he shed no tears and his face did not show any indication of sorrow (TSN, March 21,
1979, pp. 373-374).

The hammer used in the killing is an instrument with which appellant Jara is familiar. It was proven during the
trial of the case that the hammer with the letter "A" on its handle which was one of the instruments used in
the perpetration of the crime belonged to Luisa Jara who had kept it at Aileen's Canteen where her husband,
appellant Jara helped as cook.

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

Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction

if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond a
reasonable doubt. (See People v. Duero, 136 SCRA 515).

Circumstantial evidence, as a basis for conviction of crime, should be acted on and weighed with great caution,
particularly where the crime is heinous and the penalty is death, as in the instant cases. In determining the
sufficiency of circumstantial evidence to support a conviction, each case is to be determined on its own
peculiar circumstances and all of the facts and circumstances are to be considered together as a whole, and,
when so considered, may be sufficient to support a conviction, although one or more of the facts taken
separately would not be sufficient for this purpose. (23 CJS p. 555). No general rule has been formulated as to
the quantity of circumstantial evidence which wig suffice for any case, but that matters not. For all that is
required is that the circumstances proved must be consistent with each other, and at the same time
inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of
guilt. (People v. Contante, 12 SCRA 653).

The requirements for circumstantial evidence to sustain a conviction are present in this case. The
aforementioned circumstances constitute an unbroken chain leading to one fair and reasonable conclusion
which points to the guilt of the accused qqqjara beyond reasonable doubt (See US v. Villos, 6 Phil. 510; People
v. Subano, 73 Phil. 692). Mere denials of the accused as to his participation in the crime are only self-serving
negative evidence which cannot outweigh circumstantial evidence clearly establishing his active participation
in the crime.
The defense of alibi given by the accused Jara is weak. Aside from himself, the only person who vouched for
his presence at some place away from the scene of the crime was his stepdaughter from whom he had sought
abode. Hence, the alibi is made more dubious considering that no other credible persons were presented who
would, in the natural order of things be best situated to support the tendered alibi (People v. Cabanit, 139
SCRA 94, citing People v. Brioso, 37 SCRA 336; People v. Bagasala, 39 SCRA 236; People v. Carino, 55 SCRA
516). More importantly, the defense of alibi cannot prosper because it is not enough to prove that defendant
was somewhere else when the crime was committed. He must, likewise, demonstrate that it was physically
impossible for him to have been at the scene of the crime at that time (People v. Alcantara, 33 SCRA 812).
Such proof is wanting in this case.

The killing of Amparo Bantigue was marked by treachery and evident premeditation. The trial court noted
recidivism insofar as Felicisimo Jara, previously convicted of homicide, was concemed together with dwelling
and nighttime. However, the supposed robbery of the piggy bank and Buddha bank is proved only by the
extra-judicial statements found inadmissible. The offense against Bantigue was simple murder. Insofar as the
parricide case is concerned against accused Jara, the lower court did not err in finding guilt as having been
established beyond reasonable doubt.

WHEREFORE, the judgment of the lower court is MODIFIED as follows:

In Crim. Case No. 2564, the accused Bernadas and Vergara are ACQUITTED of the crime of ROBBERY with
HOMICIDE on the ground of reasonable doubt. Accused Jara is CONVICTED of the crime of MURDER and is
sentenced to suffer the penalty of death

In Crim. Case No. 2565, the accused Bernadas and Vergara are likewise ACQUITTED of the crime of HOMICIDE
on the ground of reasonable doubt. Accused Jara is CONVICTED of the crime of PARRICIDE and is sentenced to
suffer the penalty of death.

Considering. however, that the accused Jara is now over 70 years of age, the penalty of death is lowered
to reclusion perpetua.

In both cases, accused Jara is ordered to indemnify the heirs of the deceased Amparo Bantigue and Luisa Jara
in the amount of THIRTY THOUSAND PESOS (P30,000.00), respectively.

SO ORDERED.

G.R. No. L-33609 December 14, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JESUS G. RUIZ, defendant-appellant.

DE CASTRO, J.:P

Automatic review of the decision of the Court of First Instance of Agusan imposing the death penalty on the
appellant, Jesus G. Ruiz, for murder, aggravated by abuse of confidence, and sentencing him also to pay the
heirs of the deceased, Atty. Jose Ong Oh, Jr. P12,000.00 as indemnity, P176,000.00 representing lost earnings
of the deceased, P50,000.00 as moral damages, P25,000.00 as exemplary damages, and P10,000.00 as
expenses of litigation, plus costs.

The gun used in the killing, an unlicensed revolver (Exhibit "F") was ordered confiscated in favor of the
Government.

As to how the crime was committed, and the events immediately preceding and following the commission
thereof, the prosecution's version is presented in the People's Brief as follows:

At about 6:30 P.M. of May 30, 1968, while accused was downstairs. in the mezzanine of the
store situated at the first floor of his house along Mabini Street, at Nasipit, Agusan del Norte,
Raymundo Discipulo arrived thereat and after quite sometime asked the accused whether it
was true that the loading of copra on the M/V Sweet Hope that day was given to Goring
Gavero. Expressing his surprise as he could not believe then that it could happen because of his
contract and good relation with the deceased, the accused was only able to answer: "Ha?" to
Raymundo Discipulo's query (pp. 8-10, tsn, Aug. 26, 1969).

At about 7 o'clock that same evening, the accused left the said store, took a tricycle and went to
the office of the Oceanic Enterprises and inquired for the deceased (pp. 287-288, tsn, April 15,
1969). Upon being informed by Leoncio Njai Acido, a copra sample man of the said Oceanic
Enterprises, that the deceased was at the wharf, accused left and rode on the waiting tricycle
bound for the town (pp. 287, 289, tsn, Id.).

At about 8:30 o'clock that same evening of May 30, 1968, while Carmelito Omboy was in his
house fronting the plaza of the poblacion of Nasipit, Agusan del Norte, Dodong Ratilla, a
nephew of the accused, arrived and told him (Carmelito Omboy) that the accused was
requesting him to go to the latter's house (pp. 81, 82, tsn, Feb. 24, 1969). Soon thereafter,
Carmelito Omboy went with Dodong Ratilla and proceeded to the accused's house located at a
distance of only about 20 meters away and upon arrival thereat, accused who was then sitting
by the door way beside a store (p. 82, tsn, Id.) stood up and commanded him ( Carmelito
Omboy) to go to the wharf and to tell Joker (Atty. Jose Ong Oh, Jr., the deceased) to come to his
(accused's) house because the latter wanted to talk to the former (pp. 83, 84, 86, tsn, Id.).
Forthwith, Carmelito Omboy along with Dodong Ratilla took a tricycle and went to the wharf, a
kilometer away, to look and fetch for the deceased (p. 87, tsn, Id.). Sometime after their arrival
at the wharf, Carmelito Omboy was able to contact and convey the accused's message to the
deceased who affirmatively said "Yes, I will be going there" and a little later rode in his jeep
bound for the town followed by Carmelito Omboy in a tricycle (pp. 87-89, tsn, Id.).

Meanwhile, and that was between 8:30 and 9:00 o'clock that same evening of May 30, 1968, a
wharf-bound cargo truck loaded with copra of the deceased and driven by Jose Mendrez
developed engine trouble at the comer of Roxas and Mabini Streets in the poblacion of Nasipit,
Agusan del Norte (pp. 233, 234, tsn, April 14, 1969) and stopped along Roxas Street at a point
more or less seven (7) meters from the place where accused was sitting (p. 242, tsn, Id.). A
short while after the said cargo truck stopped, and while its driver Jose Mendrez was still
behind its wheel, the latter was approached by one named Charlito Canon who said to him
"Nong, you are caged by Jesus Ruiz", referring to the accused. Jose Mendrez went down. the
cargo truck and proceeded to where accused was sitting outside his store (p. 235, tsn, Id.).
Accused gave Mendrez a glass containing Tanduay wine, a little of which the latter drank (p.
236, tsn, Id.). Accused inquired from Mendrez as to the whereabouts then of the deceased.
Mendrez answered that he does not know because when he left the bodega, the deceased was
not there (p. 237, tsn, Id.).

At this juncture then, and upon accused's instructions, Charlito Canon Nonoy Palabrica and
another person unloaded from the stalled cargo truck three (3) sacks of copra which were then
dropped along Roxas Street at the side of the said truck (p. 238, tsn, Id.). Thereafter, Charlito
Canon stood at a corner fronting Roxas Street, while Nonoy Palabrica and the other person
went behind the house of the accused (p. 239, tsn, Id.). Mendrez excused himself and went to
the truck but upon reaching the same, Charlito Canon told him that accused was calling for him
again (p. 239, tsn, Id.). So, he (Mendrez) went back to the accused who, while holding a glass of
Tanduay on his left hand and with something protruding from his waist, told him not to go
away, otherwise, he (accused) would shoot him (p. 240, tsn, Id.).

While Mendrez was thus being threatened by the accused, the deceased arrived in the vicinity
riding in his jeep, but before the latter could alight therefrom, he was approached by Charlito
Canon and soon thereafter, the deceased got down from his jeep and went towards the parked
cargo truck and looked over at the sacks of copra lying on the street. Then he proceeded to the
place where accused was (p. 241, tsn, April 14, 1969; p. 94, tsn, Feb. 24, 1969). Taking
advantage of this opportunity, Mendrez left and went towards his parked cargo truck.

According to Carmelito Omboy who arrived at the vicinity almost at the same time that the
deceased reached the place as the latter was followed by the former from the wharf, the
devised greeted the accused "Jesse, Jesse" extending his arms to the accused who, however,
slapped them and kicked the rattan stool and said, 'Sit down' to the deceased in a commanding
manner (pp. 94, 95, tsn, Feb. 24, 1969); that the deceased picked up the rattan stool and placed
it in front of the accused and sat on it (pp. 96, 97, tsn, Id.); that accused demanded, "Why did
you load without asking permission?" (pp. 99, 100, tsn, Feb. 25, 1969); that the deceased
answered "Jesse, easy, easy" (Id.); that accused then splashed a glass of wine on the face of the
deceased and throw the glass to the concrete pavement (Id.); that the deceased stood up,
wiped his face, removed his eyeglasses and wiped it with his T-shirt, wore his eyeglasses again
and sat down anew, but accused with his right hand slapped him on the left cheek (pp. 99, 100,
tsn, Feb. 25, 1969); that the deceased's face was turned to the right due to the impact of the
slapping, only to be met by the shot from accused's black revolver (Exh. "F", p. 110, tsn, Id.)
when the deceased turned his face to the front; that the accused got the revolver from his right
waist and that only one shot was fired (pp. 101, 102, t.s.n., Id.); that the deceased jerked a little
and fell to his left side, meanwhile the accused stood up still holding his revolver, raised it,
turned its drum and tucked it on his right waist (p. 102, tsn, Id.); that thereafter, the accused
turned to his right, and went upstairs of his house (p. 110, tsn, Id.) and threw his firearm (p. 45,
tsn, Aug. 27, 1969); that after a while, accused came down from his house, passed by the body
of the deceased, walked along Roxas Street and proceeded to the Municipal Building (pp. 111,
112, tsn, Feb. 25, 1969; p. 45, tsn, Aug. 27, 1969).

Sometime, thereafter, that same evening, the Chief of Police of Nasipit, Agusan del Norte,
Teodoro Luneta, arrived at the scene of the shooting incident to investigate at the instance of
Mrs. Lourdes Ruiz, wife of the accused (pp. 22, 24, tsn, Aug. 27, 1968). Chief Luneta saw near
the house of the accused the body of the deceased (p. 28, tsn, Id.) whom he had known for a
good number of years (p. 24, tsn, Id.). He did not see any firearms with or within the immediate
vicinity of the victim (p. 58, tsn, Feb. 24, 1969). He left the place for a while to call some of his
policemen to assist him, but upon his arrival at the municipal building, he saw the accused
already there, so he ordered the station guard to keep watch on the person of the accused. As
most of his policemen turned out to be on patrol, he went back to the scene of the crime,
supervised the taking of the picture of the deceased on the spot, as well as the scene of the
crime by photographer David, and the drawing of a sketch of the place (Exh. "B") by Corporal
Jalop (p. 31, tsn, Aug. 27, 1968).

The body of the deceased was autopsied at the Raniel's Funeral Parlor at Butuan City by Dra.
Lydia San Pedro, Municipal Health Officer of Nasipit, Agusan del Norte, at 2:00 o'clock in the
morning of May 31, 1968 (pp. 140, 142-149, tsn, May 7, 1969), with the help of Dr. Teodoro
Vesagas who did the actual incision (pp. 102, 149, tsn, May 7, 1969) and removed the slug
which was lodged in the left medulla of the victim's brain (p. 116, tsn, Id.). The autopsy findings
are reflected in the medical report (Exh. "T" and "T-3") submitted and testified to by Dra. Lydia
San Pedro (p. 150, tsn, Id.) showing the following:

Ext.finding: Transicted tongue medially; commuted fracture left maxilla;

— Upper and lower incissor teeth left upper premolar detached from socket;

— Hard and soft palate fractured on the left side with rugged edges.

Internal Findings: Linear fracture from occipital extending to the base of the skull; lacerated left
and right lobe of the medulla; bullet slug lodge in the left medulla. Course of bullet wound of
entrance-left hard palate-left maxilla-base of the skull-left medulla.

Description of wound entrance-Location-left angle of the mouth, has irregular surface with
upward extension about 1-1/2 inches forming a triangle, two smaller linear wound triangular in
size 1/2 inch. in length on both sides of the first wound described above, burned and
roughened area about the wound of entrance.

CAUSE OF DEATH: Laceration with hemorrhage medulla due to gunshot wound.(p. 39, Rec.)

In the early morning of May 31, 1968, the recovered slug (Exh. "C") was handed by Dra. Lydia
San Pedro to Chief of Police Luneta (pp- 36-39, tsn, Aug. 27, 1968; p. 152, tsn, May 7, 1969) who
in turn gave it to his deputy, Police Lt. Amado Felias, with instructions to have it ballistically
examined (tsn, pp. 36, 37, Aug. 27, 1968; p. 237, May 9, 1969), and to escort the accused to
Camp Crame for the purpose of paraffin test, which mission he undertook together with Lt. Jose
C. Edera of the Agusan PC Command that same morning of May 31, 1968 (tsn, pp. 30-34, May
5, 1969; pp- 239, 240, May 9, 1969).

According to Capt. Constantino Y. Leva Chief of the Ballistics Branch, PC Central Laboratory,
Camp Crame (pp. 148, 149, tsn, April 18, 1969) and who examined ballistically the recovered
slug (Exh. "C"), the said slug was fired from a Cal. .357 Magnum firearm (pp. 150-155, tsn, Id.).

The result of the paraffin test conducted on the accused also on May 31, 1968 by Lt. Col.
Minardo B. Piñones, Chief of the Chemistry Branch, PC Central Laboratory, Camp Crame (pp.
326, 327, tsn, April 1, 1969), showed that the right hand of the accused was positive for the
presence of nitrates, while his left hand was negative (Exh. "K"; pp. 336, 337, 388, 389, tsn, Id.).
 On the same date, May 31, 1968, at Camp Crame, Quezon City, the accused executed an
affidavit (Exh. "Z") stating therein that while he and the deceased were grappling for the
possession of the deceased's revolver, somebody whom he did not see fired at the deceased.
This affidavit, however, was not believed by Lt. Col. Pelayo Perez, CIS Deputy Executive Officer,
when the said affidavit was presented to the latter on June 1, 1968 on account that it does not
Identify who shot the deceased (pp. 174- 175, tsn, May 8, 1969), so that Lt. Col. Perez was
constrained to, and did, interview, the accused (pp. 176, 179, tsn, Id.). After the interview, the
accused, in the presence of Lt. Col. Perez, executed a second affidavit (Exh. "Z-1") giving a new
version of the incident, in that it was the revolver of the deceased which killed the latter, and
because of this new version, Lt. Col. Perez further interviewed the accused who finally admitted
that he knew where the firearm was, and promised to surrender the same in Agusan if he
(Perez) would go there. Forthwith, the accused was returned to Nasipit, Agusan, accompanied
by Police Lt. Amado Felias and PC Lt. Edera (p. 240, tsn, May 9, 1969), while Lt. Col. Perez
decided to follow them later together with CIS Agent Sofronio Sison (p. 182, tsn, May 8, 1969).

In the meantime, on June 2, 1968, P.C. Sgt. Manuel Leva a paraffin technician, lifted paraffin
casts on the left cheek and both hands of the deceased (pp. 303-307, tsn, April 16, 1969). On
June 6, 1968, these paraffin casts were turned over by Sgt. Leva to Lt. Col. Minardo B. Pinones,
the Chief Chemist, who examined the same and the result (Exh. "L", p. 349, tsn, April 17, 1969)
showed that the paraffin cast lifted from the left cheek of the deceased was positive for the
presence of nitrates (pp. 346, 347, tsn, Id.), while the paraffin casts lifted from both hands of
the deceased were negative (p. 348, tsn, Id.).

On June 4, 1968, Lt. Col. Perez arrived in Agusan and at the residence of the accused the latter
surrendered to the former a Cal. .357 Magnum firearm with five have ammunitions and one
spent shell (pp. 182-191, tsn, may 8, 1969; pp. 37-43, May 5, 1969), which firearm (Exh. "F")
was found ballistically to be the firearm from which the recovered bullet or slug (Exh. "C") that
killed Atty. Jose Ong Oh, Jr. (deceased) was fired (Exh. "P"; pp. 162-167, tsn, April 18, 1969).

On June 5, 1968, the next day after the accused surrendered the aforesaid firearm (Exh. "F"), he
executed a third affidavit Exh. "Y") consisting of six (6) pages, at the Headquarters of the Agusan
PC Provincial Command at Butuan City (pp. 193, 194, tsn, May 8, 1969), in which affidavit,
accused, among others, admitted that the surrendered firearm (Exh. "F") is his own unlicensed
revolver that killed the deceased, but that the killing was accidental as the forefinger of the
deceased's left hand was inserted into the trigger guard of said revolver causing it to fire and
hitting the deceased himself.

Upon the other hand, the version of self-defense as developed by appellant during the trial is as follows,
quoting also from Appellant's Brief:

On the same date, May 30, 1968, at 9:00 P.M. Ratilla who was sent to look for the deceased,
Atty. Jose Ong Oh, Jr., arrived with one Carmelito Omboy. Ratilla told the herein accused-
appellant that the deceased, Atty. Jose Ong Oh, Jr., was at that time at the Helen's Bakery, then
said Ratilla after telling the herein accused-appellant the fact that Atty. Jose Ong Oh, Jr., was at
the Helen's Bakery went upstairs their house and said accused-appellant keep on looking
towards the direction of Helen's Bakery but could not see the deceased, so he went to the
middle of Mabini Street where he saw the jeep of the deceased then parked. Then after seeing
the parked jeep of the floor of their house. Then he saw that the deceased, Atty. Jose Ong Oh,
Jr., was walking towards the cargo truck and look at its engine and upon seeing the three sacks
of copra being unloaded from the truck he (the deceased) pulled his hair and saying. "This is a
delay of the loading." Then he went around the said truck and the herein accused-appellant
could see from the face of the deceased, Atty. Jose Ong Oh, Jr. that he was angry over the
unloading- of the three sacks of copra. That at the distance of about three to four meters the
herein accused-appellant told the deceased, Atty. Jose Ong Oh, Jr.: "It is good that you are
here," but the deceased did not answer, then he offered him a seat while he (the accused-
appellant) 'was sitting on a rattan chair, telling the deceased to "sit down first" and pointing to a
chair in front where he was then sitting, but the deceased, Atty. Jose Ong Oh, Jr., answered:
"No. I am in hurry" then the accused-appellant stood up, placed his hands on the shoulder of
the deceased and requested him again to sit down; then the deceased, Atty. Jose Ong Oh, Jr.,
inquired and said: "What shall we talk about, about the loading?", then the accused-appellant
asked the deceased whether it was true that he gave the loading of his copra on M/V Sweet
Hope to another labor union, Then the deceased, Atty. Jose Ong Oh, Jr., answered in a harsh
voice and said: "It is true; this is our copra; you cannot tell me to whom I will give the loading of
the copra." Then the herein accused-appellant in turn raised his voice and said: "What do you
mean? I cannot interfere? Have you forgotten our contract? And that the last shipment was not
handled by us, so this shipment should be ours", then the deceased replied and said: "It is none
of your business. Litsi it is none of your business, why do you interfere with our loading?" That
because the herein accused-appellant was hurt said to the deceased: "You are trampling on my
right already. You are a traitor, you big Chinese communist, you rascal "Then he stood up to
avoid the deceased, but the deceased said: "What do you mean by rascal? communist? traitor?
at the same time stepping forward towards him (accused appellant) and pulling out his revolver
from his (deceased) right hip pocket. However, before the deceased could put his finger on the
trigger of his revolver, the accused-appellant splashed Tanduay wine contained in the glass he
was holding on Ms right hand on the face of the deceased and with his left hand, he (the
accused-appellant) gripped the drum of the deceased's revolver which the deceased held with
his right hand. That the accused-appellant tightened his grip on the deceased's right hand so
that he could wrestle the former's revolver. But the deceased placed his left hand over the
accused-appellant's left hand trying to loosen his grip so that he (the deceased could shoot him.
The accused-appellant began to feel afraid that he will be shot by the deceased if his left hand
could be wrestled from its hold on the drum of the deceased's revolver. Then he (accused-
appellant) threw the glass that he was then holding with his right hand and with his right hand
he pulled deceased's left hand which was on top of his left hand, but he noticed the growing
strength of deceased's left hand, and he remembered that he had a firearm at his waist, so he
pulled it and struck deceased's face hitting lightly the deceased near his jaw with the end of the
barrel of the revolver because the deceased parried his blow. Then the deceased struggled to
point his gun at him, so he (accused-appellant) pistol whipped the deceased again but he was
surprised why he could not, (sic) however, he found out that deceased's left forefinger was
then inserted into the trigger guard of his revolver and both of them were then pulling his
(accused appellant's) revolver, then he pushed forward with his revolver the deceased,
however, the deceased met his forward push and his left finger still inserted into the trigger
guard of his revolver, and after a while he heard a sunburst and it was his gun that fired and his
left hand still holding the right hand of the deceased which was still holding his revolver. Then a
little later, deceased's left hand and his. forefinger inside the trigger guard of accused-
appellant's revolver loosened its grip then he saw the deceased slump to the ground on his
right side. That it was the left forefinger of the deceased which pushed the trigger of the
accused-appellant's revolver that caused it to fire. That after the deceased slumped to the
ground he (the accused-appellant) released his grip on deceased's revolver and deceased's
revolver dropped to the ground by the side of the deceased. Then the herein accused-appellant
 after taking a look at the deceased left and proceeded upstairs of his house and throw his gun.
Then he went down again from his house and proceeded towards the Municipal Building of
Nasipit. That the accused-appellant had six more bullets in his revolver, and that he did not fire
them at the deceased because he had no intention to shoot the deceased, he did not care to
find out where the deceased was hit and what occurred to his mind was to notify the police so
that the police could bring the deceased to the hospital and for him to surrender and report the
incident. Cf. decision Appendix "A", pp. 50 to 58.)

The refusal of the trial court to give credence to appellant's version of self-defense is the basic and main
assignment of error.

We agree with the court a quo in rejecting the plea of selfdefense. It has found the prosecution witnesses
more credible, and rightly so, because they all appear to be disinterested witnesses, specially the public
officials among them, the Municipal Judge, the Chief of Police, and certain officers of the Philippine
Constabulary, whose testimonies, touching on how the crime was committed, totally discredit the story of
self-defense which fails to inspire belief. The finding of the trial court on the relative credibility of the
witnesses in this case deserves full respect.

To begin with the initial unlawful aggression imputed to the deceased by the defense, in order to erect the
main prop of the defense invoked by appellant, is belied by the more natural and credible testimony of the
State witnesses. Thus, the supposed aggression committed by the deceased according to appellant and his
witnesses was in whipping out his gun and pointing it at appellant after a heated exchange of angry words. It is
entirely belied by the fact that no gun was found near the fallen body of the deceased or in the immediate
vicinity thereof, and that the slug (Exhibit "C") that caused the death and extracted from the brain of the
deceased was fired from appellant's unlicensed gun (Exhibit "F"), as established by the ballistic examination
conducted by an expert, Capt. Constantino Y. Leyva, Chief of the PC Central Laboratory, Camp Crame.

If the appellant fired his unlicensed gun with his right hand, as the presence of nitrates thereon would prove,
and there being no nitrate found on his left hand, when he was subjected to paraffin test the day following the
shooting incident (Exhibit "K") also in Camp Crame, the defense theory that the deceased pulled out a gun
which appellant tried to wrest from the deceased with his left hand, and that in the course of the struggle for
the possession of the gun, it went off with the deceased's finger also pressed against the trigger, would be
pure concoction. Under such theory, the left least, of the deceased that supposedly fired the gun. But paraffin
test conducted on June 2, 1968 showed both hands of the deceased negative for nitrates (See Exhibit "L"). It
was the left cheek of the deceased that was found positive for the presence of nitrates, which shows that the
gun was close to the face when it was fired.

If there was a struggle for the possession of the gun of the deceased as claimed by appellant, there is the
much greater likelihood of the gun being held down on the level of the body during the struggle, not the level
of the head. That the gun was fired close to the face is more indicative of a deliberate aim with complete
freedom from any force that could distort its accuracy, as would happen in a hand-to-hand struggle for the
possession of the gun. The entry of the slug through the mouth, likewise, renders appellant's version of how
the gun went off while he and the deceased who allegedly pulled out his gun very improbable, as was his first
version, as given in his statement (Exhibit "Z-1"). An these improbabilities and plain untrustworthiness in the
testimony of the appellant, and the physical findings of experts, would make the version of the prosecution
that it was appellant who drew his own gun from his right waist and fired at the deceased directly on the face,
at close range, easily the more natural and thus the more credible of the diametrically conflicting versions of
the defense and the prosecution.
In the protective surrounding of appellant's residence where his confrontation with the deceased took place,
and appellant having been quite justifiably angered by what he heard that the deceased had a rival union to
load his copra, by which act he felt cheated and unjustly discriminated, together with the numerous members
of his union, and his anger perhaps showing itself very visibly because he had been drinking in celebration of
his son's birthday, the deceased could not have assumed the aggressive stance portrayed of him. It was
appellant, therefore, who deliberately fired at the deceased, infuriated by how he felt seriously aggrieved by
the deceased's act in violating an agreement on the loading of the latter's copra by the two rival unions under
some kind of rotation scheme. The deceased himself must have been angered on seeing three sacks of his
copra unloaded from the truck that stopped near appellant's house, and taking on an attitude that was more
hostile than friendly, the deceased added fuel to appellant's fury, igniting in the latter a violent temper, as to
mark him as the real aggressor, not the deceased.

The element of unlawful aggression not having been established, appellant's plea of self-defense, or even that
of incomplete self-defense, must fall. The other requisite of self- defense which is that of the reasonable
necessity of the means employed to prevent or repel the aggression must, likewise, have to be found wanting,
once the basic requisite of unlawful aggression is shown to be non-existent. Neither could it be said, from how
the evidence has been analyzed above, that the appellant gave no provocation, which is the third and last
requisite of the justifying circumstance of self-defense.

With the constant shifting of appellant's version from that of absolute denial that he shot at the deceased,
pointing to an unknown person as the assailant, to that of accidental shooting, and finally to that of legitimate
self-defense, the utter incredibility of each of the changing theory he gave from the time he first gave
statement in custodial interrogation, to the time he testified in court, becomes so manifest for him to be
deserving of any bit of credence as a witness in his own behalf. This is true with his witnesses who merely tried
to give corroboration to his principal testimony.

Finding, therefore, that appellant shot and killed the deceased not in lawful self- defense, his liability for the
killing, authorship of which he admitted, is beyond doubt. The only question now is whether the shooting was
attended with treachery as to raise the slaying to the category of murder as charged, and as found by the trial
court, said court holding that there was treachery, even if the attack was frontal, because it was sudden and
unexpected.

To constitute treachery, the method, form or means adopted in killing the victim must be consciously and
deliberately chosen to insure its execution without any risk to the offender arising from the defense which the
victim might make. 1 In the case at bar, the resort of the appellant to the use of Ms firearm was, as he and his
witnesses declared, the hostile and insulting manner the deceased responded to appellant's demand for
explanation why, in violation of their existing agreement, deceased was loading his copra in the vessel with
the employment of laborers, not of his union but of a rival labor union. There is no evidence that even before
the arrival of the deceased at the residence of appellant when asked to see the latter, appellant had already
formed an intent to kill the deceased. His business relationship with the victim was such that appellant would
not gain from the death of the deceased who was giving livelihood to him and his union members, for
appellant to desire to do away with the deceased. Appellant had sought the deceased at the Oceanic bodega
of the latter upon hearing of the loading being done by rival union members. In doing so, he could not have
had murder in his heart and commit it at the very stronghold of his intended victim. All appellant wanted was
an explanation of, and rectification for, an act committed by the deceased considered by appellant as highly
discriminatory and prejudicial to the interest of many laborers whose union he headed. If appellant drew his
gun and fired at the deceased, it was clearly because of the unexpected turn of events that aroused the killer
instinct in him, as shown by his having been previously indicted also for murder of a police sergeant, and
convicted by the same trial court and sentenced to death (Decision, p. 100, p. 532, Rollo), which developed
from the unfriendly, if not hostile and belligerent, manner with which the deceased dealt with appellant in
their confrontation at the latter's place of residence. For in this respect, We are inclined to believed more the
defense version that the killing was preceded by some discussion which grew heated, not as cold blooded as
the prosecution would want to prove it was.

In U.S. vs. Namit, 38 Phil. 926, it was held that the circumstance that the attack was sudden and unexpected to
the person assaulted did not constitute treachery, where it did not appear that the aggressor had consciously
and deliberately adopted a mode of attack intended to facilitate the perpetration of the killing without risk to
himself. As already shown, appellant had not the time to reflect on the means or mode of attack for it to be
said that he deliberately and consciously pulled out his gun and fired at the deceased to insure the
commission of the crime without risk to himself. He fired only once. One shot would not be so certain to
disable the deceased from making a defense. Before he was shot, the deceased was splashed on the face by
appellant with liquor from a glass the latter was holding and then slapped on the left side of the face. The
shooting was thus preceded not only by a heated discussion, but acts on the part of appellant that showed not
mere hostility but such a heated temper that could break into a violent attack, to put the deceased on, his
guard. The circumstances just mentioned negate the presence of treachery, as held in the case of People vs.
Gonzales, 76 Phil. 473. For there to be treachery by reason of the suddenness and unexpectedness of the
attack, it has been generally held that there must have been no warning of any sort to the deceased or
offended party. 2 His act of going to the Municipal Building right after he had shot at the victim but once, can
hardly suggest a strong and prior homicidal intent, a circumstance also not quite compatible with a conscious
and deliberate choosing of the mode, form or means of assault to insure the execution of the crime without
risk to himself. Unconvinced nor persuaded that treachery was present in the killing, We cannot find appellant
guilty of murder.

We neither could view the fact that both appellant and the deceased were friends as giving rise to the
aggravating circumstance of abuse of confidence when appellant killed the deceased, as held by the trial
court. We agree with the defense in invoking the ruling of People vs. Luchico, 49 Phil. 689, in that before the
fatal shooting of the deceased, the latter, from the time he had hired other laborers for the loading of his
copra, not the appellant's men, as he should have done under a supposed agreement with appellant, and even
more after being sought for by appellant for the alleged breach of the agreement, and with the heated
exchange of words between them when they finally came face to face, whatever feeling of confidence,
deceased had of appellant had vanished. The sight of his truck parked near the residence of appellant, with
three sacks of his copra unloaded therefrom, also helped to vanish whatever confidence he had in appellant,
for that sight reflected the hostility of appellant towards him. The deceased himself naturally got mad at the
appellant, a mood not quite compatible with the charitable feeling of confidence. The deceased then knew,
beyond mere suspicion, that appellant was mad at him. It certainly cannot be said, therefore, that the
commission of the crime was facilitated by the confidence deceased had in appellant, which alone would
justify the appreciation of abuse of confidence as an aggravating circumstance. 3

Upon the other hand, appellant had been drinking while celebrating his son's birthday. He was told of the
loading of the victim's copra by a rival union laborers, by which act of the deceased, he felt cheated and
discriminated in alleged breach of a standing agreement. This fact aroused his passion, and caused
obfuscation. However, after seeing the appellant fan from the single shot he fired, he went forthwith to the
Municipal Building and placed himself at the disposal of the law and the authorities. We note from these facts
the presence of the mitigating circumstances of (1) drunkenness which was not shown to be intentional nor
habitual; (2) passion and obfuscation; and (3) voluntary surrender. With these three mitigating circumstances,
and with no aggravating circumstance to offset them, the penalty to be imposed should be one degree lower
than that for simple homicide or reclusion temporal which is prision mayor, or from 6 years, 1 day to 12 years
(Article 64(5), Revised Penal Code. Applying the indeterminate Sentence Law, the penalty should be from 6
years of prision correccional to 12 years of prision mayor.

As to the amount of indemnity and damages awarded, the amount of actual and compensatory damages,
represented by the loss of expected earnings, finds support in the case of Alcantara vs. Surro, et al., G.R. No. L-
4555, July 23, 1953, 59 O.G. 2769. From the physical condition of the deceased, and his social standing when
gunned down by appellant, his heirs are also entitled to moral damages as awarded by the court a quo, but
the amount so awarded may be reasonably reduced from P50,000.00 to P20,000.00, there being no
aggravating circumstance, but there are three mitigating ones. However, as held recently in the case of Nora
Aguilar Matura vs. Hon. Alfredo C. Laya and People of the Philippines, G.R. Nos. L-44550-51 and L-44552-53,
July 30, 1979 that there is no basis for awarding exemplary damages when not even one aggravating
circumstance was established, no exemplary damages may be awarded. The amount of P10,000.00 for
attorney's fees may likewise be reasonably reduced to P5,000.00, the private prosecutors that helped in the
prosecution of the case being deemed to have rendered service for a fellow member of the bar more in the
spirit of professional fraternity.

WHEREFORE, with the modification as to the penalty which is a prison term as above indicated, instead of
death, and as to the amount of damages awarded, also as above indicated, the judgment of the trial court is
affirmed in all other respects, with costs.

SO ORDERED.

Fernando, C.J., Concepcion, Jr., Fernandez, Guerrero, Abad Santos and Melencio- Herrera, JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring:

I vote for affirmance of the death penalty. The accused's claims should not be given any credence, since he
gave three conflicting statements and the victim was shot in cold blood in the head.

BARREDO, J., concurring:

I vote with Justice Aquino. Aquino, J., I concur in the opinion that the appellant committed homicide and not
murder. He is entitled only to the mitigating circumstance of voluntary surrender to the authorities. The
penalty imposable on him is twelve (12) years of prision mayor as minimum to fourteen (14) years of reclusion
temporal as maximum.

MAKASIAR, J., dissenting:

Drunkenness could not mitigate the crime as there was no showing that the quantity of liquor that appellant
imbibed shortly before the incident impaired his mental faculties and diminished his willpower. On the
contrary, it can be reasonably expected that as a leader of a labor union of stevedores, appellant is not a
stranger to hard liquor.

However, I agree with the main opinion that passion or obfuscation mitigates the guilt of the appellant who,
as head of a labor union of stevedores, was obfuscated by the victim's violation of his contract with appellant's
labor union for the loading of the victim's copra. The records showed that about 6:30 in the evening of May
30, 1968, the accused was informed that the victim authorized the loading of his copra by a rival labor union
and the incident occurred between 8:30 and 9:00 that same evening, barely three hours thereafter, an
insufficient period of time for him to cool off.

G.R. No. L-29271 August 29, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ADELINO BARDAJE, defendant-appellant.

MELENCIO-HERRERA, J.:

The accused ADELINO Bardaje in this case, after trial, has been convicted of Forcible Abduction with Rape, and
sentenced to death. The case is before us on automatic review.

On December 20, 1965, MARCELINA Cuizon lodged the following complaint with the Court of First Instance of
Samar against ADELINO and five (5) others 'namely, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and
Fidel Ansuas (hereinafter called the FIVE OTHERS):

The undersigned complainant, after having been duly sworn to according to law, accuses Adelino Bardaje,
Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape, committed as
follows:

That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Lopig, Sta.
Rita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court the
above-named accused, conspiring, confederating together and helping one another, with lewd
design, by means of force and intimidation, and at nighttime, did then and there wilfully,
unlawfully and feloniously drag one Marcelina Cuizon from the house of one Norma Fernandez
and brought her to a far away place and once there, accused Adelino Bardaje, by means of
force and intimidation forcibly had sexual intercourse with her several times while his co-
accused were on guard.

Contrary to law. (Emphasis supplied).

ADELINO was arrested on December 17th, and it was on December 20th, when he signed the alleged
confession, Exhibit "C", admitting having kidnapped and molested MARCELINA, 1 which was probably the basis
for MARCELINA's complaint, presumably prepared with the help of the Fiscal. What has been noticed is that, in
Exhibit "C", ADELINO had mentioned that, besides the FIVE OTHERS, a sixth, Domingo Odal, was with the
group when MARCELINA was "kidnapped". There is no indication in the record as to why Domingo Odal was
not included in MARCELINA's complaint as one of the accused.

The following day, December 21st, the Fiscal's office filed the following Information with the Court:

The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio Malate, Pedro Odal,
Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape with Illegal
Detention committed as follows:
That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Crossing, Municipality of
Sta. Rita, Province of Samar, Philippines and within the jurisdiction of this Honorable court the above-named
accused, conspiring, confederating together and helping one another, with Lucio Malate, Pedro Odal, Adriano
Odal, Silvino Odal and Fidel Ansuas, with lewd design, by means of force and intimidation, armed with bolos
and at nighttime, did then and there wilfully, unlawfully and feloniously drag one Marcelina Cuizon, a minor of
14 years old, from the house of one Norma Fernandez and brought her to a far away place and once there,
accused Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse with her for
several times while his co-accused were on guard.

That the commission of the crime the aggravating circumstances that it was committed in an uninhabited
place and with the aid of armed men, were present. (Emphasis supplied).

It will be noted that the complaint filed directly by MARCELINA with the Court was amended by the Fiscal in
the Information. While MARCELINA charged ADELINO only with Rape, the Fiscal charged him with "Rape with
Illegal Detention". MARCELINA merely alleged that she was dragged from the house of Norma Fernandez by
means of force and intimidation and at nighttime. On the other hand, the Information added that the accused
were "armed with bolos". The name of the barrio was also changed from Lopig to Crossing. Lastly, the
Information included the allegation that the crime of Rape with Illegal Detention was committed with the
"aggravating circumstances that it was committed in an uninhabited place and with the aid of armed men".

Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only ADELINO stood trial. The period
of the offense was from December 14th to 17th, with the complaint having been filed on December 20th, or
barely three (3) days thereafter. With that time frame in mind, an analysis of the Information will show the
assumption that only ADELINO was the principal culprit while the FIVE OTHERS were either principals by
cooperation or accomplices. Thus, the clause "with" Lucio Malate, Pedro Odal, Mariano Odal, Silvino Odal and
Fidel Ansuas" indicates that it was ADELINO who had dragged MARCELINA "with" the help of the FIVE OTHERS.
Both the complaint and Information also indicated that ADELINO was the only one who committed the rape,
while the FIVE OTHERS were merely accomplices.

On June 2, 1966, before the arraignment of ADELINO, the Information was amended to include the allegation
that MARCELINA was detained and deprived of liberty for a period of th0ree (3) days, which allegation could
be taken into account in connection with Illegal Detention 2 but not in connection with Forcible
Abduction. 3 Since according to Exhibit "C", MARCELINA was "kidnapped" at midnight of December 14th, and
ADELINO was arrested in the morning of December 17th, or an interval of less than 72 Hours, it could not be
correctly pleaded that MARCELINA was deprived of liberty for three (3) days. 4

After the trial was concluded, ADELINO's lawyer submitted his Memorandum on July 26, 1967, in which he
specifically argued that "the prosecution did not establish the elements of Rape and Illegal Detention as
prescribed by Articles 335 and 267 of the Revised Penal Code." It was only in the Memorandum of the Fiscal,
dated July 27, 1967, when the position was taken that the crime which should be imputed to ADELINO is Rape
with Forcible Abduction. The prosecution's Memorandum stated:

Although the information is for Rape with Illegal Detention instead of Rape with Forcible
Abduction, yet from the body of the information it could be clearly gleaned that the elements
of abduction are sufficiently alleged therein and hence the accused can be convicted
thereunder (People vs. Emiliano Javete, CA 01956-57-CR April 7, 1964 (82-1965).

The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible Abduction with Rape with the
aggravating circumstances of dwelling and aid of armed men, and sentenced him to death.
The version of complainant MARCELINA Cuizon, 14 years of age, is that in December, 1965, she and her
mother were living in the house of her aunt, Sofia Fernandez, at Barrio Crossing, Sta. Rita, Samar, where she
worked as a beautician. At 7:00 o'clock in the evening of December 14, 1965 while she was then eating
supper, ADELINO, whom she knew when they were "still small", and who was her classmate in Grade II (1960),
accompanied by the FIVE OTHERS, entered the house and began drinking "sho hoc tong" which they brought
along. After the liquor had been fully consumed, Silvino Odal broke the kerosene lamp causing complete
darkness. She then ran to the room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and Adriano
Odal, followed her, tried to extricate her from her mother's embrace and dragged the two of them to the sala.
Pedro Odal choked the mother's neck thereby loosening her hold on the daughter and the four males, two of
whom were armed with bolos, forced her downstairs and by holding and dragging her, brought her to the
mountain about two kilometers from Barrio Crossing. That was about 12 midnight. On the way, ADELINO
slapped her rendering her unconscious. She regained consciousness in a hut, with ADELINO holding her hands,
and removing her panty. She bit and kicked him. Despite her struggle, ADELINO succeeded in having sexual
intercourse with her while his other companions stayed outside on guard.

Under cross-examination, MARCELINA declared that she did not know who owned the hut and that it was just
a one-room affair where a woman and two small children lived; that she and Appellant slept in that same
room as the woman, while the FIVE OTHERS slept near the kitchen. 5

At about 8:00 o'clock the following morning, December 15, ADELINO and the FIVE OTHERS brought her to
another mountain, 6 kilometers farther, arriving there past twelve o'clock noon at the house of one called
Ceferino (also called Cipriano) who lived there with his family. She was kept in one room. Outside the room
were Pedro Odal, Adriano Odal and Fidel Ansuas, still armed with bolos, drinking and guarding her. In the
evening, ADELINO had another sexual intercourse with her even though she bit and kicked him and shouted
for help which was to no avail as all present were relatives of ADELINO, with the latter Ceferino "Tatay" She
curled the hair of Narita (daughter of Ceferino) the next day, because ADELINO threatened to kill her if she did
not. Her curling paraphernalia was taken by Adriano Odal, upon ADELINO's instructions, from Norma
Fernandez (her cousin) who gave the equipment as she (Norma) was also threatened. MARCELINA and her
"captors" stayed in Ceferino's house for two days. In the morning of December 17, two soldiers with her
father, Alejo Cuizon, arrived. The soldiers apprehended ADELINO while the FIVE OTHERS jumped down the
window and fled. Upon her father, she embraced him and cried. They all returned to Barrio Crossing. She and
her mother, Maria Fernandez, then went to Catbalogan, where she filed a complaint at the Fiscal's Office on
December 20, 1965 and submitted to a medical examination at the Samar Provincial Hospital.

When cross-examined, Complainant admitted that Ceferino, his wife. and seven children were living in the
same hut where she was taken the second time, which hut was about waist high from the ground, consisted of
one room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen. Between the room and the sala was a wall of split
bamboos so that noise inside the room could be heard clearly from the other side. 6

Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital, declared that he examined
MARCELINA on December 20, 1965 and issued a Medical Certificate with the following findings:

1. No evidence of external injuries around the vulva or any part of the body.

2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock.

3. Vagina easily admits two fingers.

4. Vaginal smear negative for spermatozoa 7

Explaining the "old healed laceration", the doctor stated that laceration may have been caused by possible
sexual intercourse or other factors, and if it were intercourse, he estimated that it could have occured " say,
two weeks or one month" or possibly more. 8

For his part, ADELINO, aged 18, admitted having had carnal knowledge of MARCELINA but denied having raped
her. He claims that they eloped on December 14 to 17, 1965 as previously planned, they having been
sweethearts since November 12, 1964. As such, they used to date in Tacloban and "anything goes".
MARCELINA's family used to have a house in Barrio Crossing but now MARCELINA just stays in the house of
her aunt, Sofia, which is about five houses away from theirs. In the evening of December 14, 1965, while Sofia,
MARCELINA's mother and others were eating, MARCELINA handed him a bag and beauty culture equipment
through the window, went downstairs, after which the two of them walked to the mountains, to Ceferino
Armada's house. Ceferino was a cousin of ADELINO's mother. He and MARCELINA slept in the bedroom with
18-year old Narita, Ceferino's daughter. While in that hut, food was brought to them by his sister, Nenita.
MARCELINA curled Narita's hair the next day.

In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied by MARCELINA's father, Alejo
Cuizon, apprehended him for having kidnapped MARCELINA. The latter ran to him and embraced him and said
she was to blame. notwithstanding, he was boxed by the soldiers as instructed by MARCELINA's father and
taken to Maulong PC Headquarters for questioning. During the investigation, he was boxed and kicked and
was forced to sign a statement implicating the FIVE OTHERS as his companions even if untrue. He did not
know who attested to his statement as one Sgt. Gacelos took the document elsewhere.

Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was allegedly forcibly brought the
second time, corroborated that portion of ADELINO's testimony regarding their stay in his house adding that
MARCELINA and ADELINO had told him that they had eloped; that MARCELINA even offered to curl his
daughter's hair (Narita's and Concepcion's), and helped in house chores and in the threshing of palay, while
ADELINO helped in carrying palay because it was rainy.

The trial Court found the prosecutors version of the incident more worthy of credence stating that
Complainant had no improper motive to implicate ADELINO in such a detestable crime as Rape.

On the basis of the evidence, testimonial and documentary, we find that the guilt of ADELINO has not been
established beyond reasonable doubt.

In crimes against chastity, the conviction or acquittal of an accused depends almost entirely on the credibility
of a complainant's testimony since by the intrinsic nature of those crimes they usually involve only two
persons — the complainant and the accused. The offended party's testimony, therefore, must be subjected to
thorough scrutiny for a determination of its veracity beyond reasonable doubt.

In the instant case, we find MARCELINA's charge that she was forcibly abducted and afterwards raped by
ADELINO in conspiracy with FIVE OTHERS highly dubious and inherently improbable.

To start with, according to the medical findings, "no evidence of external injuries was found around the vulva
or any part of the body" of Complainant, a fact which is strange, indeed, considering that Complainant was
allegedly "dragged" slapped" into unconsciousness, "wrestled" with, and criminally abused. Physical evidence
is of the highest order and speaks more eloquently than an witnesses put together. We are also faced with the
medical finding of "old healed lacerations" in the hymen which, according to the testimony of the examining
physician would have occurred two weeks or even one month before if said lacerations had been caused by
sexual intercourse. This expert opinion bolsters the defense that MARCELINA and ADELINO had previous
amorous relations at the same time that it casts serious doubts on the charge of intercourse by force and
intimidation.

Secondly, by Complainant's own admission, the first hut she was taken to was a small one-room affair
occupied by a woman and two small children. Her charge, therefore, that she was ravished in that same room
is highly improbable and contrary to human experience.

Thirdly, from her own lips, Complainant testified that the second hut where she was taken, that of Ceferino
Armada, consisted of a small room separated from the sala by a wall of split bamboos. Further, that Ceferino
with his wife and seven children all lived therein. It challenges human credulity that she could have been
sexually abused with so many within hearing and distance. It is unbelievable, too, that under those
circumstances the FIVE OTHERS could have stood guard outside, armed with bolos and drinking, while
ADELINO allegedly took advantage of her. If rape were, indeed, their malevolent intent, they would, in all
probability, have taken turns in abusing her. That they did not, indicates that there was, indeed, some special
relationship between MARCELINA and ADELINO. Furthermore, with people around, and the hut constructed as
it was, it would have been an easy matter for MARCELINA to have shouted and cried for help. Surely, the old
man Ceferino, his wife and/or his children could not have been insensible to her outcries notwithstanding
their relationship to ADELINO. The aphorism still rings true that evidence to be believed must not only come
from the mouth of a credible witness but must be credible in itself.

Additionally, Complainant admits that she even curled the hair of Narita, one of Ceferino's daughters, a fact
inconsistent with her allegation of "captivity". That she was threatened with death if she did not accede to
such an inconsequential request defies credulity. The livelihood is that, as the defense maintains, MARCELINA
was not forcibly abducted but that she and ADELINO had, in fact, eloped and that she had brought her beauty
culture paraphernalia with her, or, that she herself had sent for them from her cousin Norma Fernandez
voluntarily and not under threat from ADELINO.

The totality of the foregoing circumstances count with such great weight and significance that they lend an
aura of improbability and reasonable doubt to the allegation that MARCELINA had been "kidnapped" or
"illegally detained" and that when she and ADELINO engaged in sexual intercourse, it was because of force or
intimidation exercised upon her. They are circumstances that were overlooked by the trial Court and justify a
reversal of its finding of guilt as an exception to the established rule that the findings of fact of a trial Judge
based on the relative credibility of witnesses are entitled to great respect and will not be disturbed by
appellate Courts.

This case also constitutes an exception to the general belief that a young girl would not expose herself to the
ordeal of public trial if she were not motivated solely by a desire to have the culprit who had ravished and
shamed her placed behind bars. As we view it, MARCELINA was confronted with a paradoxical situation as a
daughter of relative tender age who could not shamefacedly admit to her parents that she had eloped and
voluntarily submitted to sexual intercourse, since that elopement must have met with righteous indignation
on the part of her parents. As a result, MARCELINA was faced with no other choice but to charge ADELINO
with rape or incur the ire of her parents and social disrepute from a small community.

In respect of the alleged confession of ADELINO, suffice it to re-state that "an extrajudicial confession made by
an accused shag not be sufficient ground for conviction unless corroborated by evidence of corpus
delicti. 9 Corpus delicti is proved when the evidence on record shows that the crime prosecuted had been
committed. That proof has not been met in the case at bar, the evidence establishing more of an elopement
rather than kidnapping or illegal detention or forcible abduction, and much less rape. Moreover, ADELINO,
aged 18, was by himself when being investigated by soldiers, 10 without benefit of counsel nor of anyone to
advise him of his rights. Aside from his declaration that Ws confession was obtained through maltreatment
and violence, 11 it was also vitiated by a procedural irregularity testified to by no less than prosecution witness
Sgt. Pedro Gacelos to the effect that he and room after he presented the statement to the Clerk of Court, Mr.
Rojas. 12 There is reason to believe, therefore that the so called confession was attested without ADELINO's
presence so that the latter cannot be said to have duly subscribed and sworn to it.

It should also be noted that throughout the hearings before the trial Court, it was assumed that ADELINO was
being held responsible for the complex crime of Rape with Illegal Detention. While it is true that an accused
can be punished for a crime described by the facts alleged in tile Information despite a wrong designation of
the crime in the preamble of the Information, 13 yet, in capital cases, it should be desirable that, whenever a
discrepancy is noted between the designation of the crime made by the Fiscal and the crime described by the
facts pleaded in his Information. The lower Court should call attention of the accused to the discrepancy, so
that the accused may be fully apprised of the nature and cause of the accusation against him. This was not
done in regards to ADELINO who all the time was under the impression that he was being tried for Rape with
Illegal Detention, and not for Forcible Abduction with Rape. If ADELINO had known that he was being tried for
Forcible Abduction with Rape, he may have changed the strategy or tactics of his defense. Not that it could be
said he would have done so; but he should have been advised he had the right, and given the opportunity, to
do so.

Again, one of the rights of an accused is "to have compulsory process issued to secure the attendance of
witnesses on his behalf. 14 ADELINO had stated that, while MARCELINA was in the house of Ceferino Armada,
she curled the hair of Narita. one of the latter's children, as well as the hair of other girls in the vicinity.

ADELINO wanted to have Narita testify on his behalf, and a subpoena had been issued to her. But instead of
taking effective steps to have Narita brought to Court, the lower court gave responsibility for Narita's
attendance to the defense, expressly stating that, if the defense was not able to bring her to the Court, her
testimony will be dispensed with. The record shows:

ATTY. BOHOL

I appear as counsel for the accused. Up to now, Your Honor, the witnesses we
have been expecting have not yet arrived. This representation, with the consent
of the Clerk of Court have wired the Chief of Police of Sta. Rita, Samar to bring
Ceferino Armada and Narita Armada tomorrow for the hearing, continuation of
this case for those persons mentioned to testify, your Honor, for the accused.
We pray, Your Honor, that we be given time to hear from the Chief of Police to
bring those persons tomorrow, Your Honor.

COURT

What will be the nature of the testimonies of those witnesses.

xxx xxx xxx

COURT

How about the other girl?

ATTY. BOHOL
 Narita Armada will substantially be corroborative, Your Honor.

COURT

Suppose the two witnesses do not arrive tomorrow, for which this case is set
also?

ATTY. BOHOL

If we receive information and find that those witnesses could really not come for
this case, Your Honor, I will be constrained to submit the case for decision based
on the testimony of the accused. However, Your Honor, if it will be all right with
the Honorable Court and we find that there is hope that within this week
Ceferino Armada could come here, in view of the distance, I pray before the
Honorable Court that we be given time within this week to present Ceferino
Armada, and upon his failure, submit the case for decision

COURT

The Court will not allow that anymore, anyway this case is set for tomorrow. The
Court wail grant the postponement today on condition that any witness not
presented tomorrow will be considered waived Afterall as you have manifest, 4
their testimonies will be corroborative.

xxx xxx xxx

COURT

What I mean is that you should have taken the necessary precaution for the
attendance of your witness today considering that there is a subpoena for the
witnesses.-

ORDER - for the reason that accused have no more witnesses to present today,
the trial of this case is hereby Postponed for tomorrow, July 26, 1967 at 8:30
A.M., with the warning that witnesses not presented during that day shall be
considered waived. 15

Considering that this case involved a prosecution for a capital offense, the lower Court acted precipitously in
not having Narita brought to Court, by ordering her arrest if necessary ADELINO was deprived of his right "to
have compulsory process issued to secure the attendance of witnesses on his behalf."

Crucial questions should also have been asked by the trial Court of witnesses. MARCELINA testified before the
lower Court on December 1, 1966. On December 12, 1966, P Gacelos, the PC Sgt. who investigated the
complaint against ADELINO, testified:

Q. Was that investigation of M Cuizon reduced to writing?

A. Yes, Sir. 16
It would have been advisable if the lower Court had right then and there asked for the production of the
written statement of MARCELINA.

The medical report, Exhibit "B", implied that MARCELINA could have had sexual intercourse previous to
December 14th. On the other hand, ADELINO had testified that he and MARCELINA used to go together to
Tacloban, and while there several times, "we had sexual intercourse because she likes it." 17 Considering the
possible infliction of the death penalty on ADELINO, the lower Court could have asked MARCELINA if she had
had sexual intercourse prior to December 14th and, if so, if it was with ADELINO.

Further, there was possibility that ADELINO and MARCELINA had really been sweethearts. The lower Court
could have asked MARCELINA if she realized that, charging ADELINO with Rape with Illegal Detention, the
latter could be sentenced to death. If that had been explained to her clearly by the lower Court, she might
then have admitted that she was neither raped nor "kidnapped" nor illegally detained.

MARCELINA could had been examined on the two matters mentioned above, with the Court excluding the
public from the hearing under the provisions of Rule 119, Section 14. MARCELINA might have testified without
feeling the pressure of her relatives or other persons, if such pressure had in fact existed.

It may not be amiss to state then that just as in pleas of guilty where a grave offense is charged trial Judges
have been enjoined to refrain from accepting them with alacrity but to be extra solicitous in seeing to it that
an accused fully understands the import of his plea, so also, in prosecutions for capital offenses, it behooves
the trial Courts to exercise greater care in safeguarding the rights of an accused. The trial Judge should also
take a more active role by means of searching questions in the examination of witnesses for the
ascertaintment of the truth and credibility of their testimonies so that any judgment of conviction imposing
the supreme penalty may rest on firm and unequivocal grounds. The life and liberty of an individual demand
no less.

WHEREFORE, upon reasonable doubt, the judgment appealed from imposing the death penalty, is reversed
and the appellant, Adelino Bardaje, acquitted of the crime with which he is charged. His immediate release is
ordered unless lie is held on other charges.

Costs de oficio.

SO ORDERED.

Fernando, C.J., Teehankee, Barredo, Concepcion, Jr., Fernandez, Guerrero, Abad Santos and De Castro, JJ.,
concur.

Makasiar, * J., took no part.

Separate Opinions

AQUINO, J., dissenting:

I dissent. The following is a summary of the facts proven by the prosecution, as set forth in the brief filed by
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Santiago M.
Kapunan:
In the evening of December 14, 1965, Marcelina Cuizon, a fourteen-year-old beautician was in the house of
her aunt, Sofia Fernandez, located at Barrio Crossing, Santa Rita, Samar.

At seven-thirty on that evening, while Marcelina and her mother Maria Fernandez were taking supper, six
persons, namely, Adelino Bardaje, Silvino Odal, Pedro Odal, Adriano Odal, Fidel Ansuas and Lucio Malate, all
accused in this case, entered the house bringing with them some bottles of Sho Hoc Tong, a locally
manufactured liquor.

Once inside the house, the accused began drinking the liquor. After consuming the liquor, Silvino Odal put out
the light by breaking the kerosene lamp. Afraid of what the men would do, Marcelina and her mother went
inside the bedroom but the accused followed them and grabbed Marcelino While Marcelina was shouting for
help, Maria laid aside the baby whom she was carrying and put her arms tightly around Marcelino in a
desperate effort to protect her.

The accused dragged both mother and daughter into the sala. To take away Marcelino from her mother's
tenacious grasp, Fidel Ansuas aimed his bolo at Maria, threatening to strike her, while Pedro Odal put his
hands around her neck and squeezed it with such force that Maria became unconscious, thus releasing
Marcelina from her protective embrace.

Then, the accused bodily carried Marcelina into the street and brought her to a hut in the mountain two
kilometers away. On the way, Marcelina lost consciousness after a vigorous struggle to free herself from the
accused and after Bardaje had slapped her violently.

When Marcelina regained consciousness, she found herself in a hut with Bardaje in the act of removing her
underwear. She fought energetically to resist Bardaje's advances by biting and kicking him, but all to no avail
because she was no match to his physical strength. Bardaje held her hands and consummated sexual
intercourse with her.

On the following day, December 15, Bardaje and his five companions brought Marcelino to the house of one
Cipriano where she was ravished two times. She was held captive in the house of Cipriano for two days until
she was rescued by Constabulary soldiers Pedro Gacelos and Nemesio Tirador accompanied by her father.

Bardaje was taken to the Constabulary headquarters in Catbalogan where he was investigated. Bardaje
admitted that he and his companions forcibly abducted Marcelina and brought her to a hut in the mountain
where he raped her. His admission was reduced to writing and sworn to by him (Exh-C to C3).

Marcelina was brought to the Samar Provincial Hospital where she underwent a medical examination.

Bardaje was the only one arrested and tried. The crime charged in the information is the complex crime of
"rape with Legal detention".

There may be some reasonable doubt as to the commission of rape because of the finding that the victim was
no longer a virgin when the incident took place, the absence of external injuries on the victim's body and the
claim of Bardaje that he with the victim in Tacloban City.

But there is no doubt that Bardaje and his companions committed kidnapping and serious illegal detention of
a minor as well as of a "female", an offense penalized in article 267(4) of the Revised Penal Code
with reclusion perpetua to death.
Republic Act No. 18 specifically made kidnapping of a minor and a woman a capital offense in order to deter
the kidnapping of minors and women, a crime which was very rampant after liberation.

The victim might have been a girl, who, like many teenagers of today, does not safeguard her virtue or chastity
and easily succumbs to the temptation of the flesh. (Time Magazine reports that at the Puerta del Sol in
Madrid, Spain, there is a billboard on which is emblazoned Oscar Wildes witticism "Puedo resistir todo excepto
la tentacion.")

Bardaje and his companions grievously and brazenly deprived the victim of her liberty by forcibly taking her
against her will and the will of her mother and detaining her in a hut in the mountain. (See People vs. Ablaza,
L-27352, October 31, 1969,30 SCRA 173; People vs. Tungala, 102 Phil. 1161; People vs. Ching Suy Siong and
Mata, 97 Phil. 989.)

The victim, being a minor, was still under parental authority. Her parents were entitled to her custody and to
keep her in their company. They were obligated to take care of her and to see to it that her rights were
respected.

Even a layman would deduce from the manner in which the victim was snatched and detained, that the
accused committed an outrageous and wrongful act which should be drastically punished. To acquit them
would be a miscarriage of justice.

I vote for the imposition of reclusion perpetua on the accused and the imposition of an indemnity of P10,000.

G.R. Nos. 108280-83 November 16, 1995

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

G.R. Nos. 114931-33 November 16, 1995

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO
TAMAYO, accused-appellants.

PUNO, J.:

The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA
Revolution. This was the time when the newly-installed government of President Corazon C. Aquino was being
openly challenged in rallies, demonstrations and other public fora by "Marcos loyalists," supporters of
deposed President Ferdinand E. Marcos. Tension and animosity between the two (2) groups sometimes broke
into violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista."

From August to October 1986, several informations were filed in court against eleven persons identified as
Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul
Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-47617 against Romeo Sison y Mejia, Nilo
Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de los Santos y Arambulo;
Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando
Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and
Benjamin Nuega as well as Annie Ferrer charging them as accomplices to the murder of Salcedo.

The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the accused
pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve witnesses,
including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers who were at the
Luneta at the time of the incident. In support of their testimonies, the prosecution likewise presented
documentary evidence consisting of newspaper accounts of the incident and various photographs taken
during the mauling.

The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the
Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by the
authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the Luneta at
2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both members of the
Integrated Bar of the Philippines, the loyalists started an impromptu singing contest, recited prayers and
delivered speeches in between. Colonel Edgar Dula Torres, then Deputy Superintendent of the Western Police
District, arrived and asked the leaders for their permit. No permit could be produced. Colonel Dula Torres
thereupon gave them ten minutes to disperse. The loyalist leaders asked for thirty minutes but this was
refused. Atty. Lozano turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators."
Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and
truncheons to disperse them. The loyalists scampered away but some of them fought back and threw stones
at the police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized.1

At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. There,
they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging around the
fountain. They approached her and informed her of their dispersal and Annie Ferrer angrily ordered them
"Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging around the fountain chanting "Marcos pa
rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied
"Bugbugin!" A few minutes later, Annie Ferrer was arrested by the police. Somebody then shouted
"Kailangang gumanti, tayo ngayon!" A commotion ensued and Renato Banculo, a cigarette vendor, saw the
loyalists attacking persons in yellow, the color of the "Coryistas." Renato took off his yellow shirt.2 He then saw
a man wearing a yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!"
The man in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught
Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but they
again pounced on him and pummelled him with fist blows and kicks hitting him on various parts of his body.
Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the
maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him
with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed to Salcedo's
attackers. They backed off for a while and Sumilang was able to tow Salcedo away from them. But accused
Raul Billosos emerged from behind Sumilang as another man boxed Salcedo on the head. Accused Richard de
los Santos also boxed Salcedo twice on the head and kicked him even as he was already fallen.3 Salcedo tried
to stand but accused Joel Tan boxed him on the left side of his head and ear.4 Accused Nilo Pacadar punched
Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!"5 Sumilang tried to pacify Pacadar but the latter
lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once
more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to
stand, Sison repeatedly boxed him.6 Sumilang saw accused Gerry Neri approach the victim but did not notice
what he did.7
Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat on
some cement steps8 and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal Monument
but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process. Salcedo pleaded for his
life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?"9

The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo collapsed
and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer, brought Salcedo to
the Medical Center Manila but he was refused admission. So they took him to the Philippine General Hospital
where he died upon arrival.

Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions, lacerated
wounds and skull fractures as revealed in the following post-mortem findings:

Cyanosis, lips, and nailbeds.

Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm.,
frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm.,
nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right
elbow.

Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.

Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.

Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital
region, right side.

Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior cranial
fossa.

Hemorrhage, subdural, extensive.

Other visceral organs, congested.

Stomach, about 1/2 filled with grayish brown food materials and fluid.10

The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign. The
press took pictures and a video of the event which became front-page news the following day, capturing
national and international attention. This prompted President Aquino to order the Capital Regional Command
and the Western Police District to investigate the incident. A reward of ten thousand pesos (P10,000.00) was
put up by Brigadier General Alfredo Lim, then Police Chief, for persons who could give information leading to
the arrest of the killers.11 Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with
the police, and on the basis of their identification, several persons, including the accused, were apprehended
and investigated.

For their defense, the principal accused denied their participation in the mauling of the victim and offered
their respective alibis. Accused Joselito Tamayo testified that he was not in any of the photographs presented
by the prosecution12 because on July 27, 1986, he was in his house in Quezon City.13 Gerry Neri claimed that he
was at the Luneta Theater at the time of the
incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting for
some pictures to be developed at that time. 15 He claimed to be afflicted with hernia impairing his mobility; he
cannot run normally nor do things forcefully. 16 Richard de los Santos admits he was at the Luneta at the time
of the mauling but denies hitting Salcedo. 17 He said that he merely watched the mauling which explains why
his face appeared in some of the photographs. 18 Unlike the other accused, Nilo Pacadar admits that he is a
Marcos loyalist and a member of the Ako'y Pilipino Movement and that he attended the rally on that fateful
day. According to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the
incident. 19 His face was in the pictures because he shouted to the maulers to stop hitting Salcedo. 20 Joel Tan
also testified that he tried to pacify the maulers because he pitied Salcedo. The maulers however ignored
him. 21

The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their defense.

On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan,
Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery
and sentenced them to 14 years 10 months and 20 days of reclusion temporal as minimum to 20 years
of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an accomplice. The court, however,
found that the prosecution failed to prove the guilt of the other accused and thus acquitted Raul Billosos,
Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion of the decision
reads as follows:

WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows:

1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322, the Court finds
that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt
for the crime charged and hereby acquits them of said charge;

2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds the
Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals
for the crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no
other mitigating or aggravating circumstances, hereby imposes on each of them an
indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20)
DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as
minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum;

3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds the
Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of
Murder defined in Article 248 of the Revised Penal Code and, there being no other extenuating
circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN
(14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to
TWENTY (20) YEARS of Reclusion Temporal as Maximum;

4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds the Accused
guilty beyond reasonable doubt as principal, for the crime of "Murder" defined in Article 248 of
the Revised Penal Code and hereby imposes on him an indeterminate penalty of from
FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as
Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum;
 5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds that the
Prosecution failed to prove the guilt of the Accused for the crime charged beyond reasonable
doubt and hereby acquits him of said charge;

6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds that the
Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime
charged and hereby acquits them of said charge;

7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said Accused
guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in
relation to Article 248 of the Revised Penal Code and hereby imposes on her an indeterminate
penalty of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE
(12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum.

The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and
Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo
the total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and
exemplary damages, and one-half (1/2) of the costs of suit.

The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los
Santos and Joselito Tamayo had been under detention during the pendency of these cases shall
be credited to them provided that they agreed in writing to abide by and comply strictly with
the rules and regulations of the City Jail.

The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry Nery, Raul
Billosos and Rolando Fernandez from the City Jail unless they are being detained for another
cause or charge.

The Petition for Bail of the Accused Rolando Fernandez has become moot and academic. The
Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of
merit.

The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby
cancelled. 22

On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by acquitting
Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, to reclusion
perpetua. The appellate court found them guilty of murder qualified by abuse of superior strength, but
convicted Joselito Tamayo of homicide because the information against him did not allege the said qualifying
circumstance. The dispositive portion of the decision reads:

PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows:

1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard
de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and are each
hereby sentenced to suffer the penalty of Reclusion Perpetua;

2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt
of the crime of Homicide with the generic aggravating circumstance of abuse of superior
 strength and, as a consequence, an indeterminate penalty of TWELVE (12) YEARS of prision
mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby
imposed upon him;

3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of

Murder.

CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant
consolidated cases, the said cases are now hereby certified to the Honorable Supreme Court for
review. 24

Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito Tamayo
was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of the
decision of the Court of Appeals against the four accused-appellants sentenced to reclusion perpetua.

Before this court, accused-appellants assign the following errors:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE ACCUSED
FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO
WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE
DEATH OF STEPHEN SALCEDO.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE

UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF PROSECUTION
WITNESS RANULFO SUMILANG.

III

THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED GUILTY WHEN
THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND BLUNT
INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE
DECEASED.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS
CONSPIRACY AMONG THE PRINCIPAL ACCUSED.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME
COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY. 25

In their additional brief, appellants contend that:

 I

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF FACT

UTILIZING SPECULATIONS, SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED
DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT, ALL
CONTRARY TO THE RULES OF EVIDENCE.

II

THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P", "V", TO
"V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT CONSPIRACY

EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON
THE MATTER.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME
COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING
IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE INCIDENT. 26

Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two in
prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable,
doubtful and do not deserve any credence. According to them, the testimonies of these two witnesses
are suspect because they surfaced only after a reward was announced by General Lim. Renato Banculo
even submitted three sworn statements to the police geared at providing a new or improved version of
the incident. On the witness stand, he mistakenly identified a detention prisoner in another case as
accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive prompting the trial
court to reprimand him several times. 28

There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim, much
less that both or either of them ever received such reward from the government. On the contrary, the
evidence shows that Sumilang reported the incident to the police and submitted his sworn statement
immediately two hours after the mauling, even before announcement of any reward. 29 He informed the police
that he would cooperate with them and identify Salcedo's assailants if he saw them again. 30

The fact that Banculo executed three sworn statements does not make them and his testimony incredible. The
sworn statements were made to identify more suspects who were apprehended during the investigation of
Salcedo's death. 31

The records show that Sumilang was admonished several times by the trial court on the witness stand for
being argumentative and evasive. 32 This is not enough reason to reject Sumilang's testimony for he did not
exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony was correctly given
credence by the trial court despite his evasiveness at some instances. Except for compelling reasons, we
cannot disturb the way trial courts calibrate the credence of witnesses considering their visual view of the
demeanor of witnesses when on the witness stand. As trial courts, they can best appreciate the verbal and
non-verbal dimensions of a witness' testimony.

Banculo's mistake in identifying another person as one of the accused does not make him an entirely
untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest mistake is not inconsistent
with a truthful testimony. Perfect testimonies cannot be expected from persons with imperfect senses. In the
court's discretion, therefore, the testimony of a witness can be believed as to some facts but disbelieved with
respect to the others. 34

We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each other on
all important and relevant details of the principal occurrence. Their positive identification of all petitioners jibe
with each other and their narration of the events are supported by the medical and documentary evidence on
record.

Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the victim
had various wounds on his body which could have been inflicted by pressure from more than one hard
object. 35 The contusions and abrasions found could have been caused by punches, kicks and blows from rough
stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures in Salcedo's skull which may
have been caused by contact with a hard and blunt object such as fistblows, kicks and a blunt wooden
instrument. 37

Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that Salcedo
was pummeled by his assailants with stones in their hands. 38

Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and "P," it
erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13." 39 Exhibit "O"
is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-operatives who witnessed the rally
and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as his sworn statement and in
fact gave testimony corroborating the contents thereof. 40 Besides, the Joint Affidavit merely reiterates what
the other prosecution witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants
wanted to impeach the said affidavit, they should have placed Pat. Flores on the witness stand.

Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the Luneta —
starting from a grassy portion to the pavement at the Rizal Monument and along Roxas Boulevard, 41 — as he
was being chased by his assailants 42 and as he sat pleading with his assailants. 43 Exhibits "W", "W-1" to "W-
13" are photographs of Salcedo and the mauling published in local newspapers and magazines such as the
Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily Inquirer, 46 and the Malaya. 47 The admissibility of
these photographs is being questioned by appellants for lack of proper identification by the person or persons
who took the same.

The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the
photographer as to its production and testified as to the circumstances under which they were
produced. 48 The value of this kind of evidence lies in its being a correct representation or reproduction of the
original, 49 and its admissibility is determined by its accuracy in portraying the scene at the time of the
crime. 50 The photographer, however, is not the only witness who can identify the pictures he has taken. 51 The
correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie,
either by the testimony of the person who made it or by other competent witnesses, after which the court can
admit it subject to impeachment as to its accuracy. 52 Photographs, therefore, can be identified by the
photographer or by any other competent witness who can testify to its exactness and accuracy. 53
This court notes that when the prosecution offered the photographs as part of its evidence, appellants,
through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper
identification. 54 However, when the accused presented their evidence, Atty. Winlove Dumayas, counsel for
accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients were not in
any of the pictures and therefore could not have participated in the mauling of the victim. 55 The photographs
were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the defense exhibits. And at this
hearing, Atty. Dumayas represented all the other accused per understanding with their respective counsels,
including Atty. Lazaro, who were absent. At subsequent hearings, the prosecution used the photographs to
cross-examine all the accused who took the witness stand. 56 No objection was made by counsel for any of the
accused, not until Atty. Lazaro appeared at the third hearing and interposed a continuing objection to their
admissibility. 57

The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the person
who took the same was not presented to identify them. We rule that the use of these photographs by some of
the accused to show their alleged non-participation in the crime is an admission of the exactness and accuracy
thereof. That the photographs are faithful representations of the mauling incident was affirmed when
appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave reasons for
their presence thereat. 58

An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the appellants,
namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various belligerent poses
lunging or hovering behind or over the victim. 59 Appellant Romeo Sison appears only once and he, although
afflicted with hernia is shown merely running after the
victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two appellants
in the photographs does not exculpate them. The photographs did not capture the entire sequence of the
killing of Salcedo but only segments thereof. While the pictures did not record Sison and Tamayo hitting
Salcedo, they were unequivocally identified by Sumilang and
61
Banculo Appellants' denials and alibis cannot overcome their eyeball identification.

Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal
accused and in convicting them of murder qualified by abuse of superior strength, not death in tumultuous
affray.

Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:

Art. 251. Death caused in a tumultuous affray. — When, while several persons, not composing
groups organized for the common purpose of assaulting and attacking each other reciprocally,
quarrel and assault each other in a confused and tumultuous manner, and in the course of the
affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the
person or persons who inflicted serious physical injuries can be identified, such person or
persons shall be punished by prison mayor.

If it cannot be determined who inflicted the serious physical injuries on the deceased, the
penalty of prision correccional in its medium and maximum periods shall be imposed upon all
those who shall have used violence upon the person of the victim.

For this article to apply, it must be established that: (1) there be several persons; (2) that they did not
compose groups organized for the common purpose of assaulting and attacking each other
reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and
 tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained
who actually killed the deceased; and (6) that the person or persons who inflicted serious physical
injuries or who used violence can be identified.62

A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a
confused and tumultuous affray, in the course of which some person is killed or wounded and the author
thereof cannot be ascertained.63

The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual.
Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided
eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one
distinct group identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking
turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray,
nor was there a reciprocal aggression at this stage of the incident.64

As the lower courts found, the victim's assailants were numerous by as much as fifty in number65 and were
armed with stones with which they hit the victim. They took advantage of their superior strength and
excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from
the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was
already fallen on the ground. There was a time when Salcedo was able to get up, prop himself against the
pavement and wipe off the blood from his face. But his attackers continued to pursue him relentlessly. Salcedo
could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his
assailants but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they
ignored his pleas until he finally lost consciousness. The deliberate and prolonged use of superior strength on
a defenseless victim qualifies the killing to murder.

Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the
attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety from any defense
the victim could have made. True, the attack on Salcedo was sudden and unexpected but it was apparently
because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign
against the rallyists, taunting them into mauling him. As the appellate court well found, Salcedo had the
opportunity to sense the temper of the rallyists and run away from them but he, unfortunately, was overtaken
by them. The essence of treachery is the sudden and unexpected attack without the slightest provocation on
the part of the person being attacked. 66

The qualifying circumstance of evident premeditation was alleged in the information against Joselito Tamayo.
Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and
spontaneous, spurred by the raging animosity against the so-called "Coryistas." It was not preceded by cool
thought and reflection.

We find however the existence of a conspiracy among appellants. At the time they were committing the crime,
their actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of
Salcedo. Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the
fatal wound is not required to sustain a conviction. 67 Each of the conspirators is liable for all acts of the others
regardless of the intent and character of their participation, because the act of one is the act of all. 68

The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and
exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo was
twenty three years old and was set to leave on August 4, 1986 for employment in Saudi Arabia. 69 The reckless
disregard for such a young person's life and the anguish wrought on his widow and three small
children, 70 warrant an increase in moral damages from P30,000.00 to P100,000.00. The indemnity of
P50,000.00 must also be awarded for the death of the victim.71

IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:

1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found
GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating
circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua;

2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of
Homicide with the generic aggravating circumstance of abuse of superior strength and, as a
consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision
mayor as minimum to TWENTY (20) YEARS of reclusion temporal as maximum;

3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen
Salcedo the following amounts:

(a) P74,000.00 as actual damages;

(b) P100,000.00 as moral damages; and

(c) P50,000.00 as indemnity for the death of the victim.

Costs against accused-appellants.

SO ORDERED.

G.R. No. 144656            May 9, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GERRICO VALLEJO Y SAMARTINO @ PUKE, accused-appellant.

PER CURIAM:

This is an appeal from the decision1 of the Regional Trial Court, Branch 88, Cavite City, sentencing Gerrico
Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in the amount of
P100,000.00 as civil indemnity and P50,000.00 as moral damages for the rape-slaying of a 9-year old child,
Daisy Diolola, in Rosario, Cavite on July 10, 1999.

The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with Homicide alleged:

"That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of Rosario, Province of
Cavite, Philippines and within the jurisdiction of this Honorable Trial Court, the above-named accused,
with lewd design, by means of force and intimidation, did then and there, willfully, unlawfully and
feloniously have sexual intercourse with DAISY DIOLOLA Y DITALO, a nine-year old child against the
latter's will and while raping the said victim, said accused strangled her to death."
 "CONTRARY TO LAW."2

Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded not guilty to
the crime charged, whereupon trial ensued.

Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victim's mother; Dr. Antonio S.
Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of Rosario, Cavite; Atty. Sikat
Agbunag of the Public Attorney's Office; Pet Byron Buan, NBI Forensic Biologist; Aida Viloria-Magsipoc, NBI
Forensic Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite police station; and Jessiemin Mataverde and
Charito Paras-Yepes, both neighbors of the victim.

The victim's mother, Ma. Nida Diolola, testified that at around 1:00 o'clock in the afternoon of July 10, 1999,
she sent her 9-year old daughter Daisy Diolola to their neighbor's house in Pilapil, Ligtong I, Rosario, Cavite, so
that Aimee Vallejo, the sister of accused-appellant, could help Daisy with her lessons. Aimee's house, where
accused-appellant was also staying, is about four to five meters away from Daisy's house. Ma. Nida saw her
daughter go to the house of her tutor. She was wearing pink short pants and a white sleeveless shirt. An hour
later, Daisy came back with accused-appellant. They were looking for a book which accused-appellant could
copy to make a drawing or a poster that Daisy would submit to her teacher. After finding the book, Daisy and
accused-appellant went back to the latter's house. When Ma. Nida woke up at about 5:30 o'clock after an
afternoon nap, she noticed that Daisy was not yet home. She started looking for her daughter and proceeded
to the house of Aimee, Daisy's tutor. Aimee's mother told Ma. Nida that Daisy was not there and that Aimee
was not able to help Daisy with her lessons because Aimee was not feeling well as she had her menstrual
period. Ma. Nida looked for Daisy in her brother's and sister's houses, but she was not there, either. At about
7:00 o'clock that evening, Ma. Nida went back to her neighbor's house, and there saw accused-appellant, who
told her that Daisy had gone to her classmate's house to borrow a book. But, when Ma. Nida went there, she
was told that Daisy had not been there. Ma. Nida went to the dike and was told that they saw Daisy playing at
about 3:30 o'clock in the afternoon. Jessiemin Mataverde also told Ma. Nida that Daisy was playing in front of
her house that afternoon and even watched television in her house, but that Daisy later left with accused-
appellant.

Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a Saturday, until
the early morning of the following day, June 11, 1999, a Sunday, but their search proved fruitless. Then, at
about 10:00 o'clock in the morning of June 11, 1999, she was informed that the dead body of her daughter
was found tied to the root of an aroma tree by the river after the "compuerta" by a certain Freddie Quinto.
The body was already in the barangay hall when Ma. Nida saw her daughter. Daisy was wearing her pink short
pants with her sleeveless shirt tied around her neck. Barangay Councilmen Raul Ricasa and Calring Purihin
reported the incident to the Rosario police. The other barangay officers fetched accused-appellant from his
house and took him to the barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico
Vallejo as the probable suspect since he was with the victim when she was last seen alive.3

Another witness, Jessiemin Mataverde, testified that at around 3:00 o'clock in the afternoon of that day, she
saw Daisy playing with other children outside her house. She asked Daisy and her playmates to stop playing as
their noise was keeping Jessiemin's one-year old baby awake. Daisy relented and watched television instead
from the door of Jessiemin's house. About five minutes later, accused-appellant came to the house and told
Daisy something, as a result of which she went with him and the two proceeded towards the "compuerta."

Jessiemin testified that at around 5:00 o'clock that afternoon, while she and her daughter were in front of a
store across the street from her house, accused-appellant arrived to buy a stick of Marlboro cigarette.
Accused-appellant had only his basketball shorts on and was just holding his shirt. They noticed both his shorts
and his shirt were wet. After lighting his cigarette, accused-appellant left.4

Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 o'clock in the
afternoon of July 10, 1999, while she and her husband and children were walking towards the "compuerta"
near the seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio who said that it was a
good day for catching milkfish (bangus). For this reason, according to this witness, they decided to get some
fishing implements. She said they met accused-appellant Gerrico Vallejo near the seashore and noticed that
he was uneasy and looked troubled. Charito said that accused-appellant did not even greet them, which was
unusual. She also testified that accused-appellant's shorts and shirt (sando) were wet, but his face and hair
were not.5

SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de la Cruz, Jr.
responded to the call together with his men, PO2 Garcia, SPO1 Araracap and PO2 Lariza. When they arrived,
Daisy's body was already in the barangay hall. SPO1 Cuevas took photographs of the body. At that time, Daisy
was wearing pink short pants and a dirty white panty with a dirty white sleeveless shirt wrapped around her
neck. The body was afterwards taken to the Samson Funeral Parlor in Rosario, Cavite. The inquiries conducted
by the police showed that one Freddie Quinto was fishing near the compuerta when he accidentally hit the
body of Daisy, which was in the mud and tied to the root of an aroma tree.

Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond and Esting,
were also taken into custody because they were seen with accused-appellant in front of the store in the late
afternoon of July 10 1999. Later, however, the two were released. Based on the statements of Jessiemin
Mataverde and Charito Paras-Yepes, the policemen went to the house of accused-appellant at about 4:00
o'clock in the afternoon of July 11, 1999 and recovered the white basketball shirt, with the name Samartino
and No. 13 printed at the back, and the violet basketball shorts, with the number 9 printed on it, worn by
accused-appellant the day before. The shirt and shorts, which were bloodstained, were turned over to the NBI
for laboratory examination.6

Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 o'clock in the evening of July 11,
1999, he conducted a physical examination of accused-appellant. His findings7 showed the following:

"PHYSICAL FINDINGS:

"Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x 6.0 cm. legs,
right anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right,
9.0 x 3.0 cms. and left, 13.0 x 5.0 cms.
"Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.
"Lacerations, left ring finger, posterior aspect, 0.3 cm.
"(Living Case No. BMP-9902, p. 101, records)"

At about 10:00 o'clock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario, Cavite for an
autopsy on the cadaver of the victim Daisy Diolola. The autopsy revealed the following postmortem findings:8

"Body in early stage of postmortem decomposition characterized by foul odor, eyes and tongue
protruding, bloating of the face and blister formation.

"Washerwoman's hands and feet.

 "Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused abrasions,
forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior
aspect, 8.0 x 5.0 cms., arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior aspect,
upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left, posterior aspect, 21.0 x
8.0 cms. left thumb, anterior aspect, 1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50
x 4.0 cms. knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and
middle 3rd 3.0 x 2.5 cms. foot right, dorsal aspect.

"Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.

"Fracture, tracheal rings.

"Hemorrhages, interstitial, neck, underneath, nailmarks. "Petechial hemorrhages,

subendocardial, subpleural.

"Brain and other visceral organs are congested.

"Stomach, contains ½ rice and other food particles.

"CAUSE OF DEATH: -Asphyxia by Manual Strangulation.

"GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping and congested.
Hymen, moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00 o'clock positions,
edges with blood clots." [Autopsy Report No. BTNO-99-152]

Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape and murder at
past 10:00 o'clock in the evening of June 11, 1999. The mayor said he immediately proceeded to the municipal
jail, where accused-appellant was detained, and talked to the latter. Accused-appellant at first denied having
anything to do with the killing and rape of the child. The mayor said he told accused-appellant that he could
not help him if he did not tell the truth. At that point, accused-appellant started crying and told the mayor that
he killed the victim by strangling her. Accused-appellant claimed that he was under the influence of drugs. The
mayor asked accused-appellant if he wanted to have the services of Atty. Lupo Leyva, a resident of Rosario, as
his lawyer. When accused-appellant said he did, Mayor Abutan fetched Atty. Leyva from his house and took
him to the police station about 11:00 o'clock that evening.9

Atty. Lupo Leyva corroborated Mayor Abutan's testimony. He said that upon arriving at the police station, he
asked accused-appellant if he wanted his services as counsel in the investigation. After accused-appellant
assented, Atty. Leyva testified that he "sort of discouraged" the former from making statements as anything
he said could be used against him. But, as accused-appellant was willing to be investigated, Atty. Leyva said he
advised him to tell the truth. PO2 Garcia, the investigator, informed accused-appellant of his constitutional
rights to remain silent and to be assisted by counsel and warned him that any answer he gave could and might
be used against him in a court of law. PO2 Garcia asked questions from accused-appellant, who gave his
answers in the presence of Atty. Leyva. After the statement was taken, Atty. Leyva and accused-appellant read
it and afterwards signed it. Atty. Leyva testified that he did not see or notice any indication that accused-
appellant had been maltreated by the police. In his sworn statement (Exh. M), accused-appellant confessed to
killing the victim by strangling her to death, but denied having molested her.10

Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood samples from
accused-appellant in his office for laboratory examination to determine his blood type. Likewise, the
basketball shorts and shirt worn by accused-appellant on the day the victim was missing and the victim's
clothing were turned over to the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Rosario,
Cavite police for the purpose of determining the presence of human blood and its groups.11

The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to belong to Group
"O". The following specimens: (1) one (1) white no. 13 athletic basketball shirt, with patches "Grizzlies" in front
and "SAMARTINO" at the back; (2) one (1) violet no. 9 athletic basketball short pants; (3) one (1) white small
"Hello Kitty" T-shirt with reddish brown stains; (4) one (1) "cut" pink short pants with reddish brown stains; (5)
one (1) "cut" dirty white small panty with reddish brown stains, were all positive for the presence of human
blood showing the reactions of Group "A".12

Pet Byron Buan also testified that before he took the blood samples, he had a conversation with accused-
appellant during which the latter admitted that he had raped and later killed the victim by strangulation and
stated that he was willing to accept the punishment that would be meted out on him because of the grievous
offense he had committed. Mr. Buan observed that accused-appellant was remorseful and was crying when he
made the confession in the presence of SPO1 Amoranto at the NBI laboratory.13

When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of July 13, 1999
in Cavite City, accused-appellant had with him a handwritten confession which he had executed inside his cell
at the Municipal Jail of Rosario. In his confession, accused-appellant admitted not only that he killed the victim
but that he had before that raped her. Accused-appellant said he laid down the victim on a grassy area near
the dike. He claimed that she did not resist when he removed her undergarments but that when he tried to
insert his penis into the victim's vagina, she struggled and resisted. Accused-appellant said he panicked and
killed the child. He then dumped her body in the shallow river near the "compuerta" and went home.14

Atty. Sikat Agbunag, a lawyer from the Public Attorney's Office, testified that at noon of July 13, 1999, while
she was in their office in Cavite City, Prosecutor Itoc came together with accused-appellant and some
policemen. Prosecutor Itoc asked Atty. Agbunag to assist accused-appellant about his confession. Atty.
Agbunag read the document, informed accused-appellant of his constitutional rights, and warned him that the
document could be used against him and that he could be convicted of the case against him, but, according to
her, accused-appellant said that he had freely and voluntarily executed the document because he was
bothered by his conscience. Accused-appellant, assisted by Atty. Agbunag, then affixed his signature to the
document and swore to it before Prosecutor Itoc.15

At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet Byron Buan took
buccal swabs and hair samples from accused-appellant, as well as buccal swabs and hair samples from the
parents of the victim, namely, Ma. Nida Diolola and Arnulfo Diolola. The samples were submitted to the DNA
Laboratory of the NBI for examination.

Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens collected by Dr.
Vertido. She testified that the vaginal swabs of the victim taken by Dr. Vertido during the autopsy contained
the DNA profiles of accused-appellant and the victim.16

The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee Vallejo. Their
testimonies show that at about 1:00 o'clock in the afternoon of July 10, 1999, accused-appellant, Aimee, and
their sister Abigail were in their house in Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy Diolola came
to ask accused-appellant to draw her school project. After making the request, Daisy left.17 Accused-appellant
did not immediately make the drawing because he was watching television. Accused-appellant said that he
finished the drawing at about 3:00 o'clock in the afternoon and gave it to the victim's aunt, Glory. He then
returned home to watch television again. He claimed he did not go out of the house until 7:00 o'clock in the
evening when he saw Ma. Nida, who was looking for her daughter. Accused-appellant said he told her that he
had not seen Daisy. After that, accused-appellant said he went to the "pilapil" and talked with some friends,
and, at about 8:00 o'clock that evening, he went home.

At 9:00 o'clock in the morning of July 11, 1999, barangay officials fetched accused-appellant from his house
and took him to the barangay hall, where he was asked about the disappearance of Daisy. He claimed that he
did not know anything about it. Accused-appellant was allowed to go home, but, at 11:00 o'clock that
morning, policemen came and invited him to the police headquarters for questioning. His mother went with
him to the police station. There, accused-appellant was asked whether he had something to do with the rape
and killing of Daisy. He denied knowledge of the crime.

At 4:00 o'clock that afternoon, accused-appellant accompanied the police to his house to get the basketball
shorts and shirt he was wearing the day before, which were placed together with other dirty clothes at the
back of their house. According to accused-appellant, the police forced him to admit that he had raped and
killed Daisy and that he admitted having committed the crime to stop them from beating him up. Accused-
appellant claimed the police even burned his penis with a lighted cigarette and pricked it with a needle.

Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him in the
investigation room of the police station and told him that they would help him if he told the truth. Atty. Leyva
asked him whether he wanted him to be his counsel, and accused-appellant said he answered in the
affirmative. He said Atty. Leyva informed him of his constitutional rights. Accused-appellant claimed that,
although he admitted to Mayor Abutan and Atty. Leyva the commission of the crime, this was because the
police had maltreated him. Accused-appellant said he did not tell the mayor or Atty. Leyva that he had been
tortured because the policemen were around and he was afraid of them. It appears that the family of accused-
appellant transferred their residence to Laguna on July 12, 1999 because of fear of reprisal by residents of
their barangay.18 According to accused-appellant, Mayor Abutan and Atty. Leyva were not present when he
gave his confession to the police and signed the same. Accused-appellant claims that although Exhibit "N" was
in his own handwriting, he merely copied the contents thereof from a pattern given to him by the police.19

On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the offense charged.
The dispositive portion of its decision reads:

"WHEREFORE, in view of all the foregoing considerations, the Court finds the accused Gerrico Vallejo y
Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide, as charged in the
Information, accordingly hereby sentences him to the supreme penalty of DEATH. The accused is
directed to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and
P50,000.00 as moral damages.

"SO ORDERED."20

Hence this appeal. Accused-appellant contends that:

"I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WITH
HOMICIDE DESPITE THE INSUFFICIENCY AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE
PROSECUTION.

"II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED ORAL
CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS BEING HEARSAY IN NATURE.
 "III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE VALUE TO THE WRITTEN
EXTRA-JUDICIAL CONFESSION OF THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE SAME WAS
OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE LAWYER WHO ASSISTED HIM DURING
HIS CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBLY GIVE HIM EFFECTIVE LEGAL
ASSISTANCE."

We find accused-appellant's contentions to be without merit.

First. An accused can be convicted even if no eyewitness is available, provided sufficient circumstantial
evidence is presented by the prosecution to prove beyond reasonable doubt that the accused committed the
crime.21 In rape with homicide, the evidence against an accused is more often than not circumstantial. This is
because the nature of the crime, where only the victim and the rapist would have been present at the time of
its commission, makes the prosecution of the offense particularly difficult since the victim could no longer
testify against the perpetrator. Resort to circumstantial evidence is inevitable and to demand direct evidence
proving the modality of the offense and the identity of the perpetrator is unreasonable.22

Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient to sustain a
conviction if:

"(a) there is more than one circumstance;

"(b) the facts from which the inferences are derived are proven; and

"(c) the combination of all circumstances is such as to produce conviction beyond reasonable doubt."23

In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the guilt of
accused-appellant:

1. The victim went to Aimee Vallejo's house, where accused-appellant was residing, at 1:00 o'clock in
the afternoon of July 10, 1999, for tutoring.

2. At around 2:00 o'clock in the afternoon, accused-appellant and Daisy went together to the latter's
house to get a book from which the former could copy Daisy's school project. After getting the book,
they proceeded to accused-appellant's residence.

3. From accused-appellant's house, Daisy then went to the house of Jessiemin Mataverde where she
watched television. Accused-appellant thereafter arrived and whispered something to Daisy, and the
latter went with him towards the "compuerta."

4. At about 4:30 o'clock in the afternoon, the spouses Iluminado and Charito Yepes saw accused-
appellant coming out of the "compuerta," with his clothes, basketball shorts, and t-shirt wet, although
his face and hair were not. According to these witnesses, he looked pale, uneasy, and troubled (balisa).
He kept looking around and did not even greet them as was his custom to do so.

5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish with dynamite)
was docked by the seashore.
 6. A little before 5:00 o'clock in the afternoon, Jessiemin Mataverde also saw accused-appellant buying
a Marlboro cigarette from a store. Jessiemen also noticed that accused-appellant's clothes were wet
but not his face nor his hair.

7. By 5:30 o'clock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was told by
accused-appellant that Daisy had gone to her classmate Rosario's house. The information proved to be
false.

8. Daisy's body was found tied to an aroma tree at the part of the river near the "compuerta."

9. During the initial investigation, accused-appellant had scratches on his feet similar to those caused
by the thorns of an aroma tree.

10. The clothes which accused-appellant wore the day before were bloodstained. The bloodstains on
accused-appellant's clothes and on Daisy's clothes were found positive of human blood type "A."

11. Accused-appellant has blood type "O."

12. The vaginal swabs from Daisy's body contained her DNA profile as well as that of accused-
appellant.

Accused-appellant contends that the bloodstains found on his garments were not proven to have been that of
the victim as the victim's blood type was not determined.

The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan of both
accused-appellant's and the victim's clothing yielded bloodstains of the same blood type "A". 24 Even if there
was no direct determination as to what blood type the victim had, it can reasonably be inferred that the victim
was blood type "A" since she sustained contused abrasions all over her body which would necessarily produce
the bloodstains on her clothing.25 That it was the victim's blood which predominantly registered in the
examination was explained by Mr. Buan, thus:26

"ATTY. ESPIRITU

Q:         But you will agree with me that more probably than not, if a crime is being committed, and it
results in a bloody death, it is very possible that the blood of the victim and the blood of the assailant
might mix in that particular item like the t-shirt, shorts or pants?

A:         It is possible when there is a huge amount of blood coming from the victim and the suspect, Sir.
It is possible. It will mix. Whichever is the dominant blood in it, it will be the one which will register. For
example, if there is more blood coming from the victim, that blood will be the one to register, on
occasions when the two blood mix.

Q:         But in these specimens number 1 to 5, it is very clear now that only type A and no type O blood
was found?

A:         Yes, sir."

Accused-appellant also questions the validity of the method by which his bloodstained clothes were
recovered. According to accused-appellant, the policemen questioned him as to the clothes he wore the day
before. Thereafter, they took him to his house and accused-appellant accompanied them to the back of the
house where dirty clothes were kept.27 There is no showing, however, that accused-appellant was coerced or
forced into producing the garments. Indeed, that the accused-appellant voluntarily brought out the clothes
sought by the police becomes more convincing when considered together with his confessions. A consented
warrantless search is an exception to the proscription in Section 2 of Article III of the Constitution. As we have
held, the consent of the owner of the house to the search effectively removes any badge of illegality.28

The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned by accused-
appellant. He argues that the prosecution failed to show that all the samples submitted for DNA testing were
not contaminated, considering that these specimens were already soaked in smirchy waters before they were
submitted to the laboratory.

DNA is an organic substance found in a person's cells which contains his or her genetic code. Except for
identical twins, each person's DNA profile is distinct and unique.29

When a crime is committed, material is collected from the scene of the crime or from the victim's body for the
suspect's DNA. This is the evidence sample. The evidence sample is then matched with the reference sample
taken from the suspect and the victim.30

The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the
reference sample.31 The samples collected are subjected to various chemical processes to establish their
profile.32 The test may yield three possible results:

1) The samples are different and therefore must have originated from different sources (exclusion).
This conclusion is absolute and requires no further analysis or discussion;

2) It is not possible to be sure, based on the results of the test, whether the samples have similar DNA
types (inconclusive). This might occur for a variety of reasons including degradation, contamination, or
failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the
same or a different sample, to obtain a more conclusive result; or

3) The samples are similar, and could have originated from the same source (inclusion).33 In such a
case, the samples are found to be similar, the analyst proceeds to determine the statistical significance
of the Similarity.34

In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the
following data: how the samples were collected, how they were handled, the possibility of contamination of
the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures
were followed in conducting the tests, and the qualification of the analyst who conducted the tests.

In the case at bar, the bloodstains taken from the clothing of the victim and of accused-appellant, the smears
taken from the victim as well as the strands of hair and nails taken from her tested negative for the presence
of human DNA,35 because, as Ms. Viloria-Magsipoc explained:

"PROSECUTOR LU:

Q:         I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of the victim
and of the accused gave negative results for the presence of human DNA. Why is it so? What is the
reason for this when there are still bloodstains on the clothing?
 A:         After this Honorable Court issued an Order for DNA analysis, serological methods were already
conducted on the said specimens. And upon inquiry from Mr. Buan and as far as he also knew of this
case, and we also interviewed the mother who came over to the laboratory one time on how was the
state of the specimens when they were found out. We found that these specimens were soaked in
smirchy water before they were submitted to the laboratory. The state of the specimens prior to the
DNA analysis could have hampered the preservation of any DNA that could have been there before. So
when serological methods were done on these specimens, Mr. Byron could have taken such portion or
stains that were only amenable for serological method and were not enough for DNA analysis already.
So negative results were found on the clothings that were submitted which were specimens no. 1 to 5
in my report, Sir.

Q:         I also noticed that specimen no. 6-B consisting of the smears taken from the victim also proved
negative for human DNA, why is it so?

A:         Because when we received the vaginal smears submitted by Dr. Vertido, the smear on the slide
was very, very dry and could have chipped off. I already informed Dr. Vertido about it and he
confirmed the state of the specimen. And I told him that maybe it would be the swab that could help
us in this case, Sir. And so upon examination, the smears geared negative results and the swabs gave
positive results, Sir.

Q:         How about specimen no. 7, the hair and nails taken from the victim, why did they show
negative results for DNA?

A:         The hair samples were cut hair. This means that the hair did not contain any root. So any hair
that is above the skin or the epidermis of one's skin would give negative results as the hair shaft is
negative for DNA. And then the nails did not contain any subcutaneous cells that would be amenable
for DNA analysis also, Sir.

Q:         So it's the inadequacy of the specimens that were the reason for this negative result, not the
inadequacy of the examination or the instruments used?

A:         Yes, Sir."

Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that the samples
had been contaminated, which accounted for the negative results of their examination. But the vaginal swabs
taken from the victim yielded positive for the presence of human DNA. Upon analysis by the experts, they
showed the DNA profile of accused-appellant:36

"PROSECUTOR LU:

Q:         So based on your findings, can we say conclusively that the DNA profile of the accused in this
case was found in the vaginal swabs taken from the victim?

A:         Yes, Sir.

Q:         That is very definite and conclusive?

A:         Yes, Sir."
In conclusion, we hold that the totality of the evidence points to no other conclusion than that accused-
appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances which
are proved are not only consistent with the guilt of the accused but also inconsistent with his innocence, such
evidence, in its weight and probative force, may surpass direct evidence in its effect upon the court.37 This is
how it is in this case.

Second. Accused-appellant challenges the validity of the oral and written confessions presented as evidence
against him. He alleges that the oral confessions were inadmissible in evidence for being hearsay, while the
extrajudicial confessions were obtained through force and intimidation.

The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts:

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

"(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall
be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.

"(3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in
evidence against him."

There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) coerced
confessions, the product of third degree methods such as torture, force, violence, threat, and intimidation,
which are dealt with in paragraph 2 of Section 12, and (2) uncounselled statements, given without the benefit
of Miranda warnings, which are the subject of paragraph 1 of the same section.38

Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and to NBI
Forensic Biologist should be deemed inadmissible for being violative of his constitutional rights as these were
made by one already under custodial investigation to persons in authority without the presence of counsel.
With respect to the oral confessions, Atty. Leyva testified:39

"PROSECUTOR LU:

Q:         Upon meeting this Gerrico Vallejo at the police station were you able to confer with him?

A:         Yes, Sir.

Q:         Did you ask him whether he really wants you to represent or assist him as a lawyer during that
investigation?

A:         I did, as a matter of fact, I asked him whether he would like me to represent him in that
investigation, Sir.

Q:         And what was his answer?

A:         He said "yes".
 Q:         After agreeing to retain you as his counsel, what else did you talk about?

A:         I told him that in the investigation, whatever he will state may be used against him, so it's a sort
of discouraging him from making any statement to the police, Sir."

Upon cross-examination, Atty. Leyva testified as follows:40

Q:         You stated that you personally read this recital of the constitutional rights of the accused?

A:         Yes, Sir.

Q:         But it will appear in this recital of constitutional rights that you did not inform the accused that
the statement that he will be giving might be used against him in a court of justice?

A:         I did that, Sir.

Q:         But it does not appear in this statement?

PROSECUTOR LU

The best evidence will be the statement, your Honor.

ATTY ESPIRITU

The only thing that is stated here is that "Maaaring gamitin pabor o laban sa iyo."

COURT

Let the witness answer.

A:         I told him that, as a matter of fact, and I also told him to tell the truth and nothing but the
truth."

The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan, 41 it is also
confirmed by accused-appellant who testified as follows:42

"ATTY. ESPIRITU:

Q:         Did Atty. Leyva explain to you the meaning and significance of that document which you are
supposed to have executed and signed?

A:         Yes, Sir.

Q:         What did Atty. Leyva tell you?

A:         That they are allowing me to exercise my constitutional right to reveal or narrate all what I
know about this case, Sir.

Q:         Did Atty. Leyva tell you that if you do not want, nobody can force you to give that statement?
 A:         Yes, Sir.

Q:         And did he tell you that what you would be giving is an extra-judicial confession?

A:         Yes, Sir."

Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the statements
he was to make as well as the written confessions he was to execute. Neither can he question the
qualifications of Atty. Lupo Leyva who acted as his counsel during the investigation. To be an effective counsel,
a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not
intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in
our Constitution to preclude the slightest coercion as would lead the accused to admit something false.
Indeed, counsel should not prevent an accused from freely and voluntarily telling the truth.43

Indeed, accused-appellant admitted that he was first asked whether he wanted the services of Atty. Leyva
before the latter acted as his defense counsel.44 And counsel who is provided by the investigators is deemed
engaged by the accused where the latter never raised any objection against the former's appointment during
the course of the investigation but, on the contrary, thereafter subscribed to the veracity of his statement
before the swearing officer.45 Contrary to the assertions of accused-appellant, Atty. Leyva was not the
municipal attorney of Rosario, Cavite but only a legal adviser of Mayor Renato Abutan.46

Accused-appellant contends that the rulings in People vs. Andan47 and People vs. Mantung48 do not apply to
this case. We disagree. The facts of these cases and that of the case at bar are similar. In all these cases, the
accused made extrajudicial confessions to the municipal mayor freely and voluntarily. In all of them, the
extrajudicial confessions were held admissible in evidence, being the spontaneous, free, and voluntary
admissions of the guilt of the accused. We note further that the testimony of Mayor Abutan was never
objected to by the defense.

Indeed, the mayor's questions to accused-appellant were not in the nature of an interrogation, but rather an
act of benevolence by a leader seeking to help one of his constituents. Thus, Mayor Abutan testified:49

"PROSECUTOR LU:

Q:         And during the conversation you had with Accused Gerrico Vallejo, what exactly did he tell you?

A:         At first he said that he did not do that. That was the first thing he told me. Then I told him that I
will not be able to help him if he will not tell me the truth.

Q:         And what was the reply of the accused?

A:         He had been silent for a minute. Then we talked about the incident, Sir.

Q:         And what exactly did he tell you about the incident?

A:         I asked him, "Were you under the influence of drugs at that time"?

Q:         What else did he tell you?

A:         I told him, "What reason pushed you to do that thing?" x x x

 Q:         Please tell us in tagalog, the exact words that the accused used in telling you what happened.

A:         He told me that he saw the child as if she was headless at that time. That is why he strangled
the child, Sir. ("Ang sabi niya po sa 'kin, nakita niya raw 'yung bata na parang walang ulo na naglalakad.
Kaya po sinakal niya.")

x x x           x x x           x x x

COURT:

Q:         When you told the accused that you will help him, what kind of help were you thinking at that
time?

A:         I told him that if he will tell the truth, I could help give him legal counsel.

Q:         And what was the answer of the accused?

A:         Yes, he will tell me the truth, Your Honor."

In People vs. Mantung,50 this Court said:

"Never was it raised during the trial that Mantung's admission during the press conference was
coerced or made under duress. As the records show, accused-appellant voluntarily made the
statements in response to Mayor Marquez' question as to whether he killed the pawnshop employees.
Mantung answered in the affirmative and even proceeded to explain that he killed the victims because
they made him eat pork. These circumstances hardly indicate that Mantung felt compelled to own up
to the crime. Besides, he could have chosen to remain silent or to do deny altogether any participation
in the robbery and killings but he did not; thus accused-appellant sealed his own fate. As held in People
v. Montiero, a confession constitutes evidence of high order since it is supported by the strong
presumption that no person of normal mind would deliberately and knowingly confess to a crime
unless prompted by truth and his conscience."

And in People vs. Andan, it was explained:

"Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a
spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary
manner whereby appellant orally admitted having committed the crime. What the Constitution bars is
the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are
guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit
something false, not prevent him from freely and voluntarily telling the truth."51

For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist Pet Byron Buan
is admissible. Accused-appellant would have this Court exclude this confession on the ground that it was
uncounselled and that Mr. Buan, who initiated the conversation with accused-appellant, was part of the NBI.
The issue concerning the sufficiency of the assistance given by Atty. Leyva has already been discussed. On the
other hand, the questions put by Mr. Buan to accused-appellant were asked out of mere personal curiosity
and clearly not as part of his tasks. As Buan testified:52

"PROSECUTOR LU:
 Q:         What was the subject of your conversation with him?

A:         It is customary when we examine the accused. During the examination, we talk to them for me
to add knowledge on the case, Sir.

Q:         What did you talk about during your conversation?

A:         I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir.

Q:         And what was the reply of the accused?

A:         He said yes, Sir.

Q:         What else did you ask the accused?

A:         I remember that while asking him, he was crying as if feeling remorse on the killing, Sir.

....

Q:         And it was you who initiated the conversation?

A:         Yes, Sir.

Q:         Do you usually do that?

A:         Yes, Sir. We usually do that.

Q:         Is that part of your procedure?

A:         It is not SOP. But for me alone, I want to know more about the case, Sir. And any information
either on the victim or from the suspect will help me personally. It's not an SOP, Sir."

The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and is,
therefore, admissible as evidence.

Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on the ground
that these were extracted from him by means of torture, beatings, and threats to his life. The bare assertions
of maltreatment by the police authorities in extracting confessions from the accused are not sufficient. The
standing rule is that "where the defendants did not present evidence of compulsion, or duress nor violence on
their person; where they failed to complain to the officer who administered their oaths; where they did not
institute any criminal or administrative action against their alleged intimidators for maltreatment; where there
appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a
reputable physician to buttress their claim," all these will be considered as indicating voluntariness.53 Indeed,
extrajudicial confessions are presumed to be voluntary, and, in the absence of conclusive evidence showing
that the declarant's consent in executing the same has been vitiated, the confession will be sustained.54

Accused-appellant's claim that he was tortured and subjected to beatings by policemen in order to extract the
said confession from him is unsupported by any proof:55
 "ATTY. ESPIRITU:

Q:         Did they further interrogate you?

A:         Yes, sir.

Q:         What else did they ask you?

A:         They were asking me the project, Sir.

Q:         What else?

A:         That is the only thing, Sir.

Q:         Who was doing the questioning?

A:         The investigator, Sir.

Q:         How many were they inside that room?

A:         Five, Sir.

Q:         They are all policemen?

A:         Yes, Sir.

x x x           x x x           x x x

Q:         Until what time did they keep you inside that room?

A:         Up to 11:00 in the evening, Sir.

Q:         Between 10:30 in the morning up to 11:00 o'clock in the evening, what did you do there?

A:         They were interrogating and forcing me to admit something, Sir.

Q:         In what way did they force you to admit something?

A:         They were mauling me, Sir.

Q:         The 5 of them?

A:         Yes, Sir.

Q:         The 5 of them remained inside that room with you throughout the questioning?

A:         Yes, Sir.

Q:         In what way did they hurt you?

 A:         They burned my private part with a lighted cigarette butt and pierced me with a needle, Sir.

Q:         Who did these things to you?

A:         Mercado, Sir.

Q:         Who is this Mercado?

A:         EPZA policemen, Sir.

Q:         Did the other policemen help in doing these things to you?

A:         No, Sir.

Q:         Were you asked to undress or you were forced to do that?

A:         They forced me to remove my clothes, Sir.

Q:         In what way did they force you to remove your clothes?

A:         They were asking me to take off the pants which I was wearing at the time, Sir.

Q:         Did they do anything to you to force you to remove your pants?

A:         Yes, Sir.

Q:         What?

A:         They boxed me, Sir.

Q:         What else, if any?

A:         They hit me with a piece of wood, Sir.

Q:         What did you feel when your private part was burned with a cigarette butt?

A:         It was painful, Sir.

Q:         In what part of your body were you pricked by a needle?

A:         At my private part, Sir."

These bare assertions cannot be given weight. Accused-appellant testified that he was made to stay in the
municipal hall from 10:00 o'clock in the morning until 11:00 o'clock that night of July 10, 1999, during which
time he was boxed, tortured, and hit with a piece of wood by policemen to make him admit to the crime.
However, accused-appellant was physically examined by Dr. Antonio Vertido at about 9:00 o'clock in the
evening of the same day. While the results show that accused-appellant did sustain injuries, the same are
incompatible with his claim of torture. As Dr. Vertido testified:56

"PROSECUTOR LU:
 Q:         What were your findings when you conducted the physical examination of the suspect?

A:         I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the suspect, and I
also found hematoma on the left ring finger, posterior aspect and at the same time, a laceration on the
left ring finger.

x x x           x x x           x x x

Q:         In your findings, it appears that the accused in this case suffered certain physical injuries on his
person like this abrasion on the thigh, right anterior lateral aspect lower third of the knee, what could
have caused this injury?

A:         Abrasions are usually caused when the skin comes in contact with a rough surface, Sir.
Hematoma are usually caused by a blunt instrument or object and laceration is the forcible contact of
the skin from that blunt object.

Q:         I am particularly interested in your findings hematoma on the left ring finger, posterior aspect
and laceration left ring finger posterior aspect, what could have caused those injuries on the accused?

A:         My opinion to these hematoma and laceration found on the said left ring finger was that it was
caused by a bite, Sir."

If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have found more
than mere abrasions and hematoma on his left finger. Dr. Vertido's findings are more consistent with the
theory that accused-appellant sustained physical injuries as a result of the struggle made by the victim during
the commission of the rape in the "compuerta."

At all events, even if accused-appellant was truthful and his assailed confessions are inadmissible, the
circumstantial evidence, as already shown, is sufficient to establish his guilt beyond all reasonable doubt. The
prosecution witnesses presented a mosaic of circumstances showing accused-appellant's guilt. Their
testimonies rule out the possibility that the crime was the handiwork of some other evil mind. These witnesses
have not been shown to have been motivated by ill will against accused-appellant.

On the other hand, no other witness not related to accused-appellant was ever called to corroborate his claim.
The defense presented only accused-appellant's sister, Aimee Vallejo, to corroborate his story. We have held
time and again that alibi cannot prosper if it is established mainly by the accused and his relatives, and not by
credible persons.57 It is well settled that alibi is the weakest of all defenses as it is easy to contrive and difficult
to disprove. For this reason, this Court looks with caution upon the defense of alibi, especially when, as in this
case, it is corroborated only by relatives or friends of the accused.58

Article 266-B of the Revised Penal Code provides that "When by reason or on the occasion of the rape,
homicide is committed, the penalty shall be death."59 Therefore, no other penalty can be imposed on accused-
appellant.

WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court, Branch 88,
Cavite City, finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the
crime of Rape with Homicide and sentencing him to the supreme penalty of DEATH and directing him to
indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral
damages, is hereby AFFIRMED.
In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the finality of
this decision, let the records of this case be forthwith forwarded to the President of the Philippines for the
possible exercise of the pardoning power.

SO ORDERED.