[G.R. No. 130656. June 29, 2000] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.

ARMANDO REANZARES* also known as ARMANDO RIANZARES, accused-appellant.* DECISION BELLOSILLO, J.: This case is with us on automatic review of the 26 May 1997 Decision[1] of the Regional Trial Court of Tanauan, Batangas, finding accused ARMANDO REANZARES also known as "Armando Rianzares" guilty of Highway Robbery with Homicide under PD 532[2] and sentencing him to the extreme penalty of death. He was also ordered to pay the heirs of his victim Lilia Tactacan P172,000.00 for funeral, burial and related expenses, P50,000.00 as indemnity for death, P1,000.00 for the cash taken from her bag, and to reimburse Gregorio Tactacan P2,500.00 for the Seiko wristwatch taken from him. The facts, except as to the identity of accused Armando Reanzares, are undisputed. Spouses Gregorio Tactacan and Lilia Tactacan owned a sari-sari store in San Miguel, Sto. Tomas, Batangas. On 10 May 1994 at around 8:10 in the evening, the Tactacan spouses closed their store and left for home in Barangay San Roque, Sto. Tomas, Batangas on board their passenger-type jeepney. As Gregorio was maneuvering his jeep backwards from where it was parked two (2) unidentified men suddenly climbed on board. His wife Lilia immediately asked them where they were going and they answered that they were bound for the town proper. When Lilia informed them that they were not going to pass through the town proper, the two (2) said they would just get off at the nearest intersection. After negotiating some 500 meters, one of the hitchhikers pointed a .38 caliber revolver at Gregorio while the other poked a balisong at Lilia's neck and ordered Gregorio to stop the vehicle. Two (2) other persons, one of whom was later identified as accused Armando Reanzares, were seen waiting for them at a distance. As soon as the vehicle stopped, the accused and his companion approached the vehicle. Gregorio was then pulled from the driver's seat to the back of the vehicle. They gagged and blindfolded him and tied his hands and feet. They also took his Seiko wristwatch worth P2,500.00. The accused then drove the vehicle after being told by one of them, "Sige idrive mo na."[3] Gregorio did not know where they were headed for as he was blindfolded. After several minutes, he felt the vehicle making a u-turn and stopped after ten (10) minutes. During the entire trip, his wife kept uttering, "Maawa kayo sa amin, marami kaming anak, kunin nyo na lahat ng gusto ninyo." Immediately after the last time she uttered these words a commotion ensued and Lilia was heard saying, "aray!" Gregorio heard her but could not do anything. After three (3) minutes the commotion ceased. Then he heard someone tell him, "Huwag kang kikilos diyan, ha," and left. Gregorio then untied his hands and feet, removed his gag and blindfold and jumped out of the vehicle. The culprits were all gone, including his wife. He ran to San Roque East shouting for help.[4] When Gregorio returned to the crime scene, the jeepney was still there. He went to the drivers seat. There he saw his wife lying on the floor of the jeepney with blood splattered all over her body. Her bag containing P1,200.00 was missing. He brought her immediately to the C. P. Reyes Hospital where she was pronounced dead on arrival.[5] At the time of her death Lilia Tactacan was forty-eight (48) years old. According to Gregorio, he was deeply depressed by her death; that he incurred funeral, burial and other related expenses, and that his wife was earning P3,430.00 a month as a teacher.[6] Dr. Lily D. Nunes, Medical Health Officer of Sto. Tomas, Batangas, conducted a post-mortem examination on the body of the victim. Her medical report disclosed that the victim sustained eight (8) stab wounds on the chest and abdominal region of the body. She testified that a sharp pointed object like a

long knife could have caused those wounds which must have been inflicted by more than one (1) person, and that all those wounds except the non-penetrating one caused the immediate death of the victim.[7] Subsequently, two (2) Informations were filed against accused Armando Reanzares and three (3) John Does in relation to the incident. The first was for violation of PD 532 otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974 for allegedly conspiring, with intent to gain and armed with bladed weapons and a .38 caliber revolver, to rob and carry away one (1) Seiko wristwatch owned by Gregorio Tactacan and P1,000.00 cash of Lilia Tactacan, and on the occasion thereof, killed her. The second was for violation of RA 6539, An Act Preventing and Penalizing Carnapping, for taking away by means of violence and intimidation of persons one (1) passenger-type jeepney with Plate No. DBP 235 owned and driven by Gregorio Tactacan and valued at P110,000.00. Only the accused Armando Reanzares was arrested. The other three (3) have remained unidentified and at large. The accused testified in his defense and claimed that he could not have perpetrated the crimes imputed to him with three (3) others as he was in Barangay Tagnipa, Garchitorena, Camarines Sur, for the baptism of his daughter Jessica when the incident happened.[8] His father, Jose Reanzares, corroborated his story. Jose claimed that the accused borrowed P500.00 from him for the latter's trip to Bicol although he could not say that he actually saw the accused leave for his intended destination.[9] To bolster the alibi of the accused, his brother Romeo Reanzares also took the witness stand and alleged that he saw the accused off on 9 May 1994, the day before the incident. Romeo maintained that he accompanied the accused to the bus stop that day and even helped the latter carry his things to the bus. He however could not categorically state where and when the accused alighted or that he in fact reached Bicol.[10] On 26 May 1997 the trial court found the prosecutions evidence credible and ruled that the alibi of the accused could not prevail over his positive identification by complaining witness Gregorio Tactacan. The court a quo declared him guilty of Highway Robbery with Homicide under PD 532 and sentenced him to death. It further ordered him to pay the heirs of Lilia Tactacan P50,000.00 as indemnity for death, P172,000.00 for funeral, burial and related expenses, and P1,000.00 for the cash taken from her bag. The accused was also ordered to reimburse Gregorio Tactacan P2,500.00 for the Seiko wristwatch taken from him.[11] But the trial court exonerated the accused from the charge of carnapping under RA 6539 for insufficiency of evidence. The accused insists before us that his conviction for Highway Robbery with Homicide under PD 532 is erroneous as his guilt was not proved beyond reasonable doubt. He claims that the testimony of private complainant Gregorio Tactacan, who implicated him as one of the perpetrators of the crime, is incredible. He maintains that Gregorio failed to identify him because when the latter was questioned he stated that he did not know any of the culprits. He also claims that in the publication of Hotline by Tony Calvento in People's Tonight, Gregorio even asked the readers to help him identify the malefactors. The trial court observed that Gregorio Tactacan testified in a categorical, straightforward, spontaneous and frank manner, and was consistent on cross-examination. Indeed, Gregorio might not have immediately revealed the name of accused Armando Reanzares to the police authorities when he was first investigated but the delay was not an indication of a fabricated charge and should not undermine his credibility considering that he satisfactorily explained his reasons therefor. According to him, he did not immediately tell the police about the accused because he feared for the safety of his family as his neighbors told him that they saw some people lurking around his house on the day of the incident. Moreover, he was advised not to mention any names until after the burial of his wife. No ill motive could be attributed to him for implicating the accused. If at all, the fact that his wife died by reason of the incident even lends credence to his testimony since his natural interest in securing the conviction of the guilty would deter him from implicating persons other than the real culprits, otherwise, those responsible for the perpetration of the crime would escape prosecution. To further undermine the credibility of Gregorio, the accused underscores Gregorio's refusal to be subjected to a lie detector test. We cannot subscribe to this contention as the procedure of ascertaining the

truth by means of a lie detector test has never been accepted in our jurisdiction; thus, any findings based thereon cannot be considered conclusive. Finally, the accused chides Gregorio for supposedly suppressing a very material piece of evidence, i.e., the latter failed to present as witnesses a certain Renato and his wife who allegedly saw the holduppers running away from the crime scene. But this is only a disputable presumption under Sec. 3, par. (e), Rule 131, of the Rules of Court on evidence, which does not apply in the present case as the evidence allegedly omitted is equally accessible and available to the defense. These attempts of the accused to discredit Gregorio obviously cannot hold ground. Neither can they bolster his alibi. For alibi to be believed it must be shown that (a) the accused was in another place at the time of the commission of the offense, and (b) it was physically impossible for him to be at the crime scene.[12] In this case, the accused claims to have left for Bicol the day before the incident. To prove this, he presented his father and brother but their testimonies did not meet the requisite quantum to establish his alibi. While his father testified that the accused borrowed money from him for his fare to Bicol for the baptism of a daughter, he could not say whether the accused actually went to Bicol. As regards the claim of Romeo, brother of the accused, that he accompanied the accused to the bus stop on 9 May 1994 and even helped him with his things, seeing the accused off is not the same as seeing him actually get off at his destination. Given the circumstances of this case, it is possible for the accused to have alighted from the bus before reaching Bicol, perpetrated the crime in the evening of 10 May 2000, proceeded to Bicol and arrived there on 12 May 2000 for his daughters baptism. Thus the trial court was correct in disregarding the alibi of the accused not only because he was positively identified by Gregorio Tactacan but also because it was not shown that it was physically impossible for him to be at the crime scene on the date and time of the incident. Indeed the accused is guilty. But that the accused was guilty of Highway Robbery with Homicide under PD 532 was erroneous. As held in a number of cases, conviction for highway robbery requires proof that several accused were organized for the purpose of committing it indiscriminately.[13] There is no proof in the instant case that the accused and his cohorts organized themselves to commit highway robbery. Neither is there proof that they attempted to commit similar robberies to show the "indiscriminate" perpetration thereof. On the other hand, what the prosecution established was only a single act of robbery against the particular persons of the Tactacan spouses. Clearly, this single act of depredation is not what is contemplated under PD 532 as its objective is to deter and punish lawless elements who commit acts of depredation upon persons and properties of innocent and defenseless inhabitants who travel from one place to another thereby disturbing the peace and tranquility of the nation and stunting the economic and social progress of the people. Consequently, the accused should be held liable for the special complex crime of robbery with homicide under Art. 294 of the Revised Penal Code as amended by RA 7659[14] as the allegations in the Information are enough to convict him therefor. In the interpretation of an information, what controls is the description of the offense charged and not merely its designation.[15] Article 294, par. (1), of the Revised Penal Code as amended punishes the crime of robbery with homicide by reclusion perpetua to death. Applying Art. 63, second par., subpar. 2, of the Revised Penal Code which provides that "[i]n all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: x x x 2. [w]hen there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied," the lesser penalty of reclusion perpetua is imposed in the absence of any modifying circumstance.

As to the damages awarded by the trial court to the heirs of the victim, we sustain the award of P50,000.00 as civil indemnity for the wrongful death of Lilia Tactacan. In addition, the amount of P50,000.00 as moral damages is ordered. Also, damages for loss of earning capacity of Lilia Tactacan must be granted to her heirs. The testimony of Gregorio Tactacan, the victims husband, on the earning capacity of his wife, together with a copy of his wifes payroll, is enough to establish the basis for the award. The formula for determining the life expectancy of Lilia Tactacan, applying the American Expectancy Table of Mortality, is as follows: 2/3 multiplied by (80 minus the age of the deceased).[16] Since Lilia was 48 years of age at the time of her death,[17] then her life expectancy was 21.33 years. At the time of her death, Lilia was earning P3,430.00 a month as a teacher at the San Roque Elementary School so that her annual income was P41,160.00. From this amount, 50% should be deducted as reasonable and necessary living expenses to arrive at her net earnings. Thus, her net earning capacity was P438,971.40 computed as follows: Net earning capacity equals life expectancy times gross annual income less reasonable and necessary living expenses Net earning capacity (x) x = = = 2 (80-48) ...... 3 21.33 P438,971.40 x x [P41,160.00 P20,580.00 = Life expectancy x Gross annual income -

reasonab living ex

P20,580.

However, the award of P1,000.00 representing the cash taken from Lilia Tactacan must be increased to P1,200.00 as this was the amount established by the prosecution without objection from the defense. The award of P172,000.00 for funeral, burial and related expenses must be reduced to P22,000.00 as this was the only amount sufficiently substantiated.[18] There was no other competent evidence presented to support the original award. The amount of P2,500.00 as reimbursement for the Seiko wristwatch taken from Gregorio Tactacan must be deleted in the absence of receipts or any other competent evidence aside from the self-serving valuation made by the prosecution. An ordinary witness cannot establish the value of jewelry and the trial court can only take judicial notice of the value of goods which is a matter of public knowledge or is capable of unquestionable demonstration. The value of jewelry therefore does not fall under either category of which the court can take judicial notice.[19] WHEREFORE , the Decision appealed from is MODIFIED. Accused ARMANDO REANZARES also known as "Armando Rianzares" is found GUILTY beyond reasonable doubt of Robbery with Homicide under Art. 294 of the Revised Penal Code as amended and is sentenced to reclusion perpetua. He is ordered to pay the heirs of the victim P50,000.00 as indemnity for death, another P50,000.00 for moral damages, P1,200.00 for actual damages, P438,971.40 for loss of earning capacity, and P22,000.00 for funeral, burial and related expenses. Costs de oficio. SO ORDERED.

[G.R. No. 131829. June 23, 2000] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. RONNIE AGOMO-O, accused, EDDY PANEZA and OSCAR SERVANDO, accused-appellants. DECISION MENDOZA, J.: This is an appeal from a decision [1] of the Regional Trial Court, Branch 23, Iloilo City, finding accusedappellants Eddy Paneza and Oscar Servando, together with accused Ronnie Agomo-o, [2] guilty of highway robbery under P.D. No. 532, and sentencing them to suffer the penalty of reclusion perpetua and to indemnify the heirs of the victim, Rodito Lasap, in the amount of P50,000.00. The information [3] against accused-appellants and their co-accused Ronnie Agomo-o charged That on or about the 22nd day of September, 1993, along the national highway, in the Municipality of San Enrique, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring confederating and mutually helping one another, armed with a pistolized homemade shotgun and bladed weapons announced a hold-up when the passenger jeepney driven by Rodito Lasap reached Barangay Mapili, San Enrique, Iloilo, and by means of violence against or intimidation, did then and there willfully, unlawfully and feloniously, with intent to gain, take steal and carry away cash money, in the amount of FIFTY PESOS (P50.00), Philippine Currency and a wrist watch with a value of THREE THOUSAND PESOS (P3,000.00) both belonging to JOSE AMADOR, another amount of ONE HUNDRED THIRTY PESOS (P130.00) belonging to FREDDIE AGRABIO, and the amount of TWO HUNDRED PESOS (P200.00) belonging to the driver, RODITO LASAP, with a total value of THREE THOUSAND THREE HUNDRED EIGHTY PESOS (P3,380.00), Philippine Currency, to the damage and prejudice of the aforesaid persons and on the occasion of said robbery, the accused, with intent to kill shot the driver RODITO LASAP, with the firearms they were provided at that time which resulted [in] the death of Rodito Lasap and with deliberate intent to kill likewise stab one FREDDIE AGRABIO with a bladed weapon they were provided thus hitting him on the left elbow, thus commencing the commission of homicide directly by overt acts but did not perform all the acts of execution which would produce the felony by reason of some cause or accident other than their own spontaneous desistance. The prosecution evidence showed that, on September 22, 1993, at around 7:30 in the evening, a passenger jeepney driven by Rodito Lasap en route to Passi, after coming from Sitio Gomez, Barangay Abaca, San Enrique, Iloilo, was stopped by three men, among them was the accused in this case, Ronnie Agomo-o, who, armed with a gun, announced a hold-up and ordered the driver to turn off the engine. After Lasap obeyed, Ronnie Agomo-o shot him just the same.[4] That same night, Rodito Lasap died as a result of multiple gunshot wounds.[5] A passenger, Freddie Agrabio, who was seated beside the driver, transferred, out of fright, to the rear portion of the jeep. He was then told to lie face down on the floor of the vehicle. Afterwards, he was asked to hand in his wallet containing P130.00 to one of the robbers. The accused then ordered the passengers to alight from the jeepney and keep their hands up. As they were doing so, accused-appellant Paneza stabbed Agrabio, hitting him on the left elbow. Agrabio ran from the scene.[6] Another passenger of the jeepney was Jose Amador. He saw the three accused coming from the sugarcane field at Barangay Mapili. The three stopped the passenger jeepney. Eddy Paneza took Amadors wallet containing P50.00 as well as his wrist watch, all the while pointing a pinote at him. He thought it was Oscar Servando who stabbed Freddie Agrabio. When Agrabio ran, Amador also ran.[7] Amador said that he was seated behind the driver and was thus able to see the accused as the moon was bright and there was light coming from the jeepney.[8]

SPO1 Joely Lasap and his companions received a report of the hold-up. Some of them went to Barangay Mapili to respond to the report of the incident. At around four oclock in the morning of the following day, SPO1 Lasap and his companions found three empty shells of a 12-gauge shotgun.[9] SPO1 Lasap is a first cousin of the victim Rodito Lasap.[10] Dr. Jason Palomado of the Passi District Hospital treated Freddie Agrabio for a wound on his left elbow. The wound was two centimeters in length and two centimeters in depth. Agrabio was discharged from the hospital the following morning.[11] Dr. Palomado issued a medical certificate[12] stating that Agrabio needed treatment for a period of 9 to 30 days. On September 28, 1993, Jocelyn Agomo-o went to the San Enrique Police Station and turned over a wrist watch allegedly taken during the hold-up. The watch was eventually returned to its owner, Jose Amador. [13] The defense of the accused was alibi. Ronnie Agomo-o claimed that he was at the Provincial Hospital with his mother from September 21 to September 23, 1993 to watch over his sick brother.[14] Accusedappellant Eddy Paneza said he was in his aunts house in Rizal, Palapala, Iloilo in the morning of September 22, 1993 and that, at around 10 oclock, he accompanied his aunt, Teresa Escultero, to Brgy. Madarag, San Enrique, arriving there at three oclock in the afternoon. They went there to talk with the family of the prospective husband of his aunts daughter. Eddy Paneza slept in the grooms house and proceeded to Barangay Bawatan the following morning.[15] Teresa Escultero corroborated Eddy Panezas testimony.[16] Lastly, Ma. Elena Servando, sister-in-law of Oscar Servando, testified that on September 22, 1993, accused-appellant Oscar Servando accompanied her to Sitio Baclayan, San Enrique to gather corn. They went back home at around six oclock in the evening. They removed the corn ears from the cob and finished doing so at 11 oclock that evening. The following morning, they dried the corn until the afternoon.[17] The lower court then rendered a decision on February 5, 1997 finding the accused guilty. The dispositive portion of its decision states: WHEREFORE, premises considered, judgment is hereby rendered finding accused Ronnie Agomo-o, Eddy Paneza and Oscar Servando GUILTY beyond reasonable doubt of violating the provisions of Section 3, Paragraph (b) of Presidential Decree No. 532, otherwise known as the Anti-Piracy and AntiHighway Robbery Law of 1974, particularly the last portion thereof, and sentences them to suffer a penalty of imprisonment of Reclusion Perpetua, and to pay the heirs of Rodito Lasap civil indemnity in the amount of P50,000.00. The accused Ronnie Agomo-o, Eddy Paneza and Oscar Servando who are presently detained are entitled to be credited in full with the entire period of their preventive detention. SO ORDERED.[18] It is from this judgment that Paneza and Servando appealed. Ronnie Agomo-o did not appeal. Accusedappellants contend: I. THE TRIAL COURT ERRED IN FINDING ALL THE ACCUSED RONNIE AGOMO-O, EDDY PANEZA and OSCAR SERVANDO GUILTY BEYOND REASONABLE DOUBT OF VIOLATING THE PROVISIONS OF SECTION 3, PARAGRAPH (b) OF PRESIDENTIAL DECREE NO. 532, OTHERWISE KNOWN AS THE ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974, IN SPITE OF THE FACT THAT THERE WAS NO PROOF OF CONSPIRACY. II. THE TRIAL COURT FURTHER ERRED IN IMPOSING A PENALTY OF IMPRISONMENT OF RECLUSION PERPETUA TO ALL THE ACCUSED AND TO PAY THE HEIRS OF RODITO LASAP CIVIL INDEMNITY IN THE AMOUNT OF P50,000.00.

III. THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT OSCAR SERVANDO IN SPITE OF THE ABSENCE OF PROOF AS TO HIS PARTICIPATION. We find the appeal to be without merit. First . Accused-appellants claim that the testimony of Freddie Agrabio was incredible and highly improbable. They contend that Agrabio could not have been beside the driver when the latter was shot; otherwise, he, too, would have been injured considering his proximity to the driver.[19] That Freddie Agrabio could also have been hit is sheer speculation and conjecture and, therefore, not a valid argument against the veracity of his testimony. Freddie Agrabio could not have been hit because Rodito Lasap was shot at close range.[20] The latter was shot on the chest,[21] hence, the scattered pellets only hit that area. Moreover, Freddie Agrabio was the only one seated in front of the jeepney beside the driver.[22] Under such circumstances, the passenger could have moved away from the driver. He may have been seated next to the driver but not close enough to be within the range of the shotgun. The trial court correctly relied on the positive identification of the accused made by Freddie Agrabio and Jose Amador. No reason has been advanced why the testimonies of these witnesses should not be believed. Hence, the trial courts evaluation of the witnesses testimonies must be accorded great respect since it had the opportunity to observe and examine the witnesses conduct and demeanor on the witness stand.[23] On direct examination, Freddie Agrabio testified as follows: Q. Mr. Freddie Agrabio, on September 22, 1993, around 7:30 in the evening, more or less, could you remember where were you? A. Yes, sir. Q. Where were you? A. I was sitting in the front seat of the jeepney. Q. Why were you there? A. I was going to town. Q. Of what town? A. Passi. Q. Where did you come from? A. From Sitio Gomez. Q. What municipality? A. Sitio Gomez, Brgy. Abaca, San Enrique, Iloilo. Q. While riding on the said jeepney, could you remember if any incident that happened? A. When we arrived at the crossing Ronie Agomo-o appeared bringing with him a firearm. Q. Could you remember what crossing was that? A. Crossing [Barangay] Mapili. Q. Of what municipality is Brgy. Mapili? A. San Enrique. Q. Was Ronie Agomo-o alone? A. There were three of them. Q. Could you remember who were his other companions? A. Eddy Paneza and Servando. Q. By the way, do you know the full [name] of this certain Servando? A. I just knew him as Servando. Q. Why do you know this Ronie Agomo-o? A. Because he often drive a jeep and we often pass that place. Q. If Ronie Agomo-o is inside the courtroom, could you point out where is he? A. Yes, sir. Q. Point to him? A. He is there. (witness pointing to man seated on the accused bench who when asked [identified himself] as Ronie Agomo-o.) Q. How about this Eddy Paneza, could you point out where is he in this Court?

A. Yes, sir, he is also there. (witness pointing to another seated on the accused bench who when asked identified himself as Eddy Paneza) Q. How about a certain Servando you mentioned? A. He is there. (witness again pointing to another man situated on the accused bench and when asked his name identified himself as Oscar Servando) Q. After you saw this Ronie Agomo-o appeared with a shotgun and declared hold-up, what happened further? A. He instructed the driver Rodito Lasap to turn off the engine of the jeep and upon instructing Rodito he shot Rodito Lasap. Q. Was Rodito Lasap hit by Ronie Agomo-o? A. Yes, sir. Q. And what happened further? A. Then I transferred to the back portion of the jeep at the passengers area. Q. After you transferred at the back portion of the passenger jeep, what did the three (3) outlaws do, if any? A. They told us to give our money to them and not to do anything bad. COURT Q. Who ordered the passengers to turn over their money? A. The three (3) of them, Your Honor. .... Q. After the three (3) accused in this case ordered you and your companions to give your money, did you follow their order? A. Yes, sir, I gave to them my wallet. Q. Was your wallet empty at the time you gave them to the holdupper? A. There was. The money inside was P130.00. COURT Q. To whom did you give your wallet? A. I really dont know to whom I gave because I was facing down when I gave my wallet. Q. Why did you lie down? A. They told me. Q. What did they tell you? A. They told me not to do anything bad. COURT Proceed. PROSECUTOR Q. After you gave your wallet to the holdupper, what happened further, if any? A. They instructed us to alight from the jeep and kept our hands up. Q. And what happened further? A. And then Eddy Paneza stabbed me. Q. Were you hit? A. Yes, sir. COURT Q. Where? A. Here, Your Honor. (witness pointing his left elbow) Q. How many times did Eddy Paneza stab you? A. Once. After he stabbed me I ran away. Q. Were you injured? A. Yes, Your Honor. (witness showing to the Bench his left elbow with a scar) .... COURT Proceed. PROSECUTOR Q. You said that Eddy Paneza, one of the accused in this case stabbed you. Were you able to have your wound treated? A. Yes, sir. .... COURT Q. In what hospital were you treated?

A. At Passi. .... PROSECUTOR Q. After Eddy Paneza stabbed you, what happened? A. We scampered away and when I turned my back I saw Jose Amador following me. Q. Was Jose Amador one of the passengers in the said jeepney? A. Yes, sir.[24] Freddie Agrabio was steadfast in his testimony despite rigorous cross-examination by defense counsel. He further testified: CROSS EXAMINATION BY ATTY. ACEBUQUE Q. You said you were sitting on the front seat when this Ronie Agomo-o appeared from the sugarcane plantation, is that correct? A. Yes, sir. Q. And immediately after Ronie Agomo-o appeared from the sugarcane plantation, he shouted hold-up, is that correct? A. Yes, sir. Q. And you were still on the front seat of the passenger jeep at the time when he announced there was hold-up, is that correct? A. I was beside the driver, at the right. Q. You mean to tell this Honorable Court that immediately he shouted hold-up, he shot the driver, is that correct? A. Yes, sir. Q. And at the time you were near the driver? A. Yes, sir. Q. You said that Ronie [Agomo-o] used a pistolized homemade shotgun, is that correct? A. I cannot identify what kind of firearm because it was dark. Q. Are you sure of that, Mr. Witness? A. Yes, sir. .... WITNESS A. I am sure that the firearm is a pistolized homemade shotgun. ATTY. ACEBUQUE Q. When Ronie Agomo-o shot the driver Rodito Lasap, how far were you then sitting on the front seat with the Rodito Lasap? A. We were side by side. Q. And you saw at the time Ronie Agomo-o shot Rodito Lasap, is that correct? A. Yes, sir. Q. Where was Ronie Agomo-o at the time when he shot Rodito Lasap? A. He was at the left side of the driver. COURT Q. How far was Ronie Agomo-o from Rodito Lasap when he shot the latter? A. About one arms length. Q. You saw the accused pointed that shotgun to Rodito Lasap? A. Yes, Your Honor. Q. When you saw Ronie Agomo-o pointed that firearm to the driver, Rodito Lasap, could you tell this Court what was the distance of the tip of the barrel of the shotgun to the body of Rodito Lasap? A. The tip of the barrel is about six (6) to seven (7) inches. COURT From the body of Rodito Lasap. Proceed. ATTY. ACEBUQUE Q. In what particular part of the body of Rodito Lasap did Ronie Agomo-o pointed the shotgun? A. Middle of his breast. Q. And you were situated beside Rodito Lasap, is that correct? [Q]. You did not hide when Ronie Agomo-o pointed the shotgun to Rodito Lasap? A. I was not able to move. Q. You mean to tell this Honorable Court when the firearm was fired, you were still beside Rodito Lasap, is that correct?

A. When the firearm was fire[d] I was still beside Rodito Lasap. Q. And despite the burst of the shotgun you were not injured by that particular burst? A. I was not hit. Q. The only injury which you suffered at the time was the stab wound which Eddy Paneza inflicted upon your person, is that correct? A. Yes, sir. COURT Q. What happened to Rodito Lasap when he was shot by Ronie Agomo-o? A. He laid down in the front seat. COURT Proceed. ATTY. ACEBUQUE Q. How about you after the shot, what did you do? A. I transferred to the back portion of the jeep. Q. You mean to tell this Honorable Court you went down from the front seat then you transferred to the back portion of the jeep? A. No, sir, I just climbed at the back. Q. At the time of the incident, how many persons were sitting at the front seat excluding the driver? A. There were three (3) of us. Q. Who were your companions, could you remember? A. Joey and Junior. Q. And this Joey and Junior were still sitting at the front seat when Ronie Agomo-o shot Rodito Lasap together with you? A. No sir, they were not there anymore. They alighted one by one. .... Q. When you transferred at the back portion passing through the front seat back, were Joey and Junior whom you mentioned a while ago still in the front seat? A. They were not there anymore. Only Rodito Lasap was there. Q. You testified that your were divested the amount of P130.00. Who divested you of that amount? A. I cannot tell which one of them because I was facing down. Q. So you were not sure who divested you of the amount of P130.00? A. I am not sure. I could not determine who took the money. Q. When for the first time were you able to identify the accused, the three (3) accused here? A. I identified Ronie Agomo-o because I saw him come out from the sugarcane plantation. Q. When for the first time you come to know the name of Ronie Agomo-o? A. For long time already. COURT Q. How long before the incident on September 22, 1993 did you come to personally know Ronie Agomoo? A. About five (5) years. .... ATTY. ACEBUQUE Q. You said you were confined at the Passi District Hospital for two (2) days, is that correct? A. Yes, [s]ir. Q. Immediately upon confinement at the Passi District Hospital, were there policemen who came to the hospital and investigated about the incident? A. Joely Lasap came to me. Q. What is his relation to Rodito Lasap? A. They are first cousins. Joely Lasap is a policeman of San Enrique. Q. And this Pat. Lasap investigated you at the said hospital, is that correct? A. Yes, sir. Q. When he investigated you, were you able to identify the three accused immediately? A. Yes, sir. .... COURT Q. You said awhile ago you came to know Ronie Agomo-o for the last five (5) years. How about Eddy Paneza, when for first time have you come to know him personally? A. I already know them, Your Honor.

.... Q. How about Oscar Servando, for how long have you known him? A. The same year. Q. You know Oscar Servando for the last five (5) years yet you were not able to know what was his first name? A. Because I forgot since my house is far away. .... ATTY. ACEBUQUE Q. When you first knew the three (3) accused for the last five (5) years, have you ever met them before the incident of September 22, 1993? A. Yes, sir. Q. How many times have you met the three (3) accused before the incident? A. Many times.[25] Jose Amador corroborated Agrabios testimony as to what transpired in the evening of September 22, 1993. He testified: Q On September 22, 1993 in the evening, where were you? A I was inside the jeep. Q Why were you there? A I am intending to go to Passi. Q Could you remember the name of the driver of that particular jeep where you were riding on that particular time? A Yes, sir. The name is Rodito Lasap. Q Could you likewise remember some of your co-passengers on that particular time? A There others I could remember but the others I could not. Q And at what particular time was that? A 7:30 oclock. Q While the jeep where you were riding was on its way to Passi, could you remember if there was an unusual incident that happened? A When we were about to cross at the crossing of Brgy. Mapili within the municipality of San Enrique going to Banate, three persons came out from the camp. COURT: Q What kind of camp was that? A The [t]hree persons came out from the sugarcane field. Q And what did they do? A And they pointed a gun saying This is hold-up. PROSECUTOR: Q How many were holding a gun? A One. Q Could you remember the person who was holding the gun on that particular time? A Yes, sir I could recall. Q Who was he? A Ronie Agomo-o. Q If Ronie Agomo-o is inside the Court, could you point out where is he? A Yes, sir. INTERPRETER: (Witness pointing to a person and when asked of his name answered Ronie Agomo-o). PROSECUTOR: Q How about his companions, could you remember them? A I could identify them when the police pointed them to me but during the incident I dont know them. Q Could you name the names of the two other companions? A Servando and Paneza. Q If these other two companions of Ronie Agomo-o are inside the Court, could you point out where are they now? A Yes, sir. Q Point to them. INTERPRETER: (The witness pointed to a man sitting on the right side of the bench, who, when asked of his name answered Paneza and at the left side answered Servando.)

PROSECUTOR: Q Now after Ronie Agomo-o and his companions came out of the sugarcane field and pointed out his gun, what happened further, if any? A Paneza took away P50.00 and he also got my wrist watch. Q When Paneza took your wrist watch, was it with your consent or not? A Why should I not consent because he was holding a pinote. Q If that wrist watch be shown to you, could you still remember that wrist watch? A Yes, sir. It is my watch. Q Showing to you this wrist watch, how is this related to the one you are referring to? A This is the one. There is a name de luxe. .... Q Before Paneza took your money and your watch, what did Ronie Agomo-o and his other companions were doing at that time? A They told me to get down the jeep. Q How about the driver, what was he doing at that time? A He lay down on the chair of the jeep. Q Do you know why he lay down the jeep? A Because he lost consciousness for he was shot at the chest. COURT: Q Shot by whom? A Ronie Agomo-o shot the driver. PROSECUTOR: Q Which happened first, the shooting of Rodito Lasap by Ronie Agomo-o or the taking of your watch by Paneza? A The shooting of the driver was ahead of the taking of my watch. Q Then upon taking your watch, what did you do? A They told me to go down from the jeep. Q Did you go down from the jeep? A Yes, sir. Q Then after that? A Servando frisked my waist and then he stabbed Freddie. Q That Freddie, you refer to the person of Freddie Agrabio? A Yes, sir because he was following me. Q Then what happened further, if any? A No more because Freddie ran away and I also followed Freddie.[26] As will be noted, the testimonies of Agrabio and Amador did not fit each other in every detail. For example, while Agrabio identified Eddy Paneza as the person who stabbed him,[27] Jose Amador said it was Oscar Servando.[28] Freddie Agrabio was also confused about the type of firearm Ronnie Agomo-o used, whether it was a pistolized homemade shotgun or something else.[29] Such discrepancies, however, in the testimonies of the witnesses do not detract from their truthfulness. These apparent inconsistencies may be attributed more from an honest mistake due to fleeting memory than from a deliberate intent to prevaricate. Instead of detracting from the truthfulness of the testimonies, the inconsistencies reinforce the witnesses credibility.[30] What is important is that the testimonies of these witnesses corroborated each other in material points, to wit: (a) that the passenger jeepney they were riding on was stopped on the crossing to Barangay Mapili, San Enrique by an armed man in the person of Ronnie Agomo-o, accompanied by accused-appellants Eddy Paneza and Oscar Servando; (b) that after announcing a holdup, Ronnie Agomo-o shot Rodito Lasap, the driver of the passenger jeepney; and, (c) that the accused then divested the passengers of their money and other valuables. It is settled that so long as the witnesses testimonies agree on substantial matters, the inconsequential inconsistencies and contradictions dilute neither the witnesses credibility nor the verity of their testimonies. As this Court has held: In sum, the inconsistencies referred to by the defense are inconsequential. The points that mattered most in the eyewitnesses testimonies were their presence at the locus criminis, their identification of the accusedappellant as the perpetrator of the crime and their credible and corroborated narration of accused-

appellants manner of shooting Crisanto Suarez. To reiterate, inconsistencies in the testimonies of witnesses that refer to insignificant details do not destroy their credibility. Such minor inconsistencies even manifest truthfulness and candor erasing any suspicion of a rehearsed testimony.[31] In contrast to the clear and positive identification of Freddie Agrabio and Jose Amador, accusedappellants gave nothing but alibi and denial. They gave only self-serving testimonies, corroborated only by the testimonies of their relatives. As we have held, [a]libi becomes less plausible when it is corroborated by relatives and friends who may then not be impartial witnesses.[32] Alibi is an inherently weak defense and must be rejected when the accuseds identity is satisfactorily and categorically established by the eyewitnesses to the offense,[33] especially when such eyewitnesses have no ill motive to testify falsely.[34] In the case at bar, the defense failed to show that Freddie Agrabio and Jose Amador were motivated by ill will. Furthermore, accused-appellants defense of alibi and denial cannot be believed as they themselves admitted their proximity to the scene of the crime when the offense occurred. Eddy Paneza testified that, at the time of the incident, he was in Barangay Madarag, a town within the municipality of San Enrique[35] where the robbery took place. On the other hand, Ma. Elena Servando testified that Oscar Servando went with her to gather corn in Sitio Baclayan which is also in the municipality of San Enrique. [36] For the defense of alibi to prosper, the following must be established: (a) the presence of the accusedappellant in another place at the time of the commission of the offense; and, (b) physical impossibility for him to be at the scene of the crime.[37] These requisites were not fulfilled in this case. Considering that accused-appellants themselves admitted that they were in the same municipality as the place where the offense occurred, it cannot be said that it was physically impossible for them to have committed the crime. On the contrary, they were in the immediate vicinity of the area where the robbery took place. Thus, their defense of alibi cannot prosper. Second . Accused-appellants contend that there can be no finding of conspiracy against them because the prosecution failed to establish their participation in the killing of Rodito Lasap.[38] This argument is without merit. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. It may be inferred from the acts of the accused indicating a common purpose, a concert of action, or community of interest.[39] That there was conspiracy in the case at bar is supported by the evidence on record. Freddie Agrabio testified that after shooting the driver, the accused ordered the passengers to give their money and valuables.[40] Although Freddie Agrabio could not specify who among the three divested him of his wallet because he was lying face down on the floor of the jeepney,[41] it is clear that accused-appellants took part in the robbery. Accused-appellant Paneza did not only take valuables from the passengers but also stabbed Freddie Agrabio, hitting the latter on the left elbow.[42] Jose Amador identified both accused-appellants Eddy Paneza as the one who took his wrist watch and wallet while simultaneously pointing a pinote at him,[43] and Servando as the one who frisked his waist as he was alighting from the jeepney.[44] Clearly, therefore, accused-appellants cooperated with one another in order to achieve their purpose of robbing the driver and his passengers. [F]or collective responsibility to be established, it is not necessary that conspiracy be proved by direct evidence of a prior agreement to commit a crime. It is sufficient that at the time of the commission of the offense, all the accused acted in concert showing that they had the same purpose or common design or that they were united in its execution.[45] While only Ronnie Agomo-o shot and killed Rodito Lasap, accused-appellants cannot be exonerated. When conspiracy is established, all who carried out the plan and who personally took part in its execution are equally liable.[46] Accused-appellants must both also be held responsible for the death of Rodito Lasap. Third. Accused-appellants further assert that they cannot be convicted of highway robbery as the crime was not committed by at least four persons, as required in Article 306 of the Revised Penal Code.

However, highway robbery is now governed by P.D. No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974. This law provides: Sec. 2. (e). Highway Robbery/Brigandage. The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine Highway. In the case of People v. Puno,[47] it was held that P.D. No. 532 amended Art. 306 of the Revised Penal Code and that it is no longer required that there be at least four armed persons forming a band of robbers. [48] The number of offenders is no longer an essential element of the crime of highway robbery.[49] Hence, the fact that there were only three identified perpetrators is of no moment. P.D. No. 532 only requires proof that persons were organized for the purpose of committing highway robbery indiscriminately.[50] The robbery must be directed not only against specific, intended or preconceived victims, but against any and all prospective victims.[51] In this case, the accused, intending to commit robbery, waited at the Barangay Mapili crossing for any vehicle that would happen to travel along that road. The driver Rodito Lasap and his passengers were not predetermined targets. Rather, they became the accuseds victims because they happened to be traveling at the time when the accused were there. There was, thus, randomness in the selection of the victims, or the act of committing robbery indiscriminately, which differentiates this case from that of a simple robbery with homicide. Sec. 3(b) of the law provides: The penalty of reclusin temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage, the penalty of reclusin temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion or murder or homicide, or rape is committed as a result or on the occasion thereof, the penalty of death shall be imposed.[52] Since a homicide occurred during the commission of the highway robbery, the appropriate penalty to be imposed on accused-appellants would have been death. However, the crime was committed on September 22, 1993 when the imposition of the death penalty was suspended by the 1987 Constitution. Hence, the penalty next lower in degree, or reclusion perpetua, was correctly imposed by the trial court on accusedappellants Paneza and Servando. In accordance with our recent rulings,[53] the trial court correctly awarded P50,000.00 as civil indemnity in favor of the heirs of Rodito Lasap. WHEREFORE, the decision of the Regional Trial Court, Branch 23, Iloilo City is AFFIRMED. SO ORDERED.

One gold bracelet P20,000.00 G.R. No. 157723 : April 30, 2009 ROMEO SAYOC y AQUINO and RICARDO SANTOS y JACOB, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION TINGA, J.: This petition assails the Decision1 dated 30 January 2002 of the Court of Appeals which affirmed the Decision2 dated 25 November 1999 of the Regional Trial Court finding the accused guilty beyond reasonable doubt for violation of Presidential Decree No. 532, otherwise known as the Anti-Highway Robbery Law of 1974, and the Resolution3 dated 14 October 2002 denying the motion for reconsideration.4 The facts, culled from the records, are as follows: In the afternoon of 4 March 1999, Elmer Jaen (Jaen) was aboard a bus when a fellow passenger announced a hold-up. Three (3) persons then proceeded to divest the passengers of their belongings. Under knife-point, purportedly by a man later identified as Ricardo Santos (Santos), Jaen's necklace was taken by Santos' cohort Teodoro Almadin (Almadin). The third robber, Romeo Sayoc (Sayoc), meanwhile, reportedly threatened to explode the hand grenade he was carrying if anybody would move. After taking Jaen's two gold rings, bracelet and watch, the trio alighted from the bus. PO2 Remedios Terte (police officer), who was a passenger in the same bus, ran after the accused, upon hearing somebody shouting about a hold-up. Sayoc was found by the police officer hiding in an "ownertype" jeep. The latter instructed Jaen to guard Sayoc while she pursued the two robbers. Sayoc was then brought to the police station. A few hours later, barangay officials arrived at the police station with Santos and Almadin. They reported that the two accused were found hiding inside the house of one Alfredo Bautista but were prevailed upon to surrender. The victim's bracelet was recovered from Santos while the two rings were retrieved from Almadin. On 8 March 1999, an information was filed against the accused in the Regional Trial Court of Quezon City, which reads: Criminal Case No. Q-99-81757 That on or about the 4th day of March 1999 in Quezon City, Philippines, the above-named accused armed with [a] deadly weapon[,] conspiring, confederating with and mutually helping one another with intent to gain and by means of force and intimidation against person [sic] did then and there [willfully], unlawfully and feloniously rob one ELMER JAEN Y MAGPANTAY in the manner as follows: said accused pursuant to their conspiracy boarded a passenger bus and pretended to be passengers thereof and upon reaching EDSA Balintawak[,] a public highway, Brgy. Apolonio Samson, this city,[sic] announce the hold-up and with the use of a knife poked[,] it against herein complainant and took, robbed and carried away the following: On 30 January 2002, the Court of Appeals affirmed the trial court's decision. The appellate court viewed the alleged inconsistencies between the testimonies of the victim and the police officer as a minor variation which tends to strengthen the probative value of their testimonies. Anent the issue of illegal arrest, the appellate court concluded from evidence that Almadin and Santos voluntarily surrendered.8 In their motion for reconsideration,9 petitioners reiterated that the inconsistencies in the testimonies of the victim and the police officer refer to substantial matters, as they establish the lack of positive and convincing identification of the petitioners. On 14 October 2002, the Court of Appeals issued a Resolution denying the motion for reconsideration for lack of merit. Two gold rings 8,000.00 One Guess watch 4,000.00 Total P32,000.00 Belonging to Elmer Jaen y Magpantay in the total amount of P32,000.00 Phiippine Currency to the damage and prejudice of said offended party in the aforementioned amount of P32,000.00 Philippine Currency. CONTRARY TO LAW5 When arraigned, petitioners pleaded not guilty. After arraignment however, Almadin "jumped bail." Santos denied knowing his co-accused and his complicity in the hold-up. He declared that he was engaged in a drinking session with his kumpare Alfredo Bautista when he went up to the comfort room to relieve himself. He was suddenly dragged by the barangay officials, who hit him in the head rendering him unconscious. He was later brought to a hospital for treatment. For his part, Sayoc disclaimed knowing the other accused. He claimed to be a passenger on the said bus when the hold-up was announced. Upon seeing a person holding a gun, he immediately descended from the bus. According to Sayoc, he entered a street where vehicles were passing. As the persons who were running passed by him, he went to the side and stood up behind a wall. Soon thereafter, he was apprehended by a police officer. On 25 November 1999, the RTC rendered judgment against the petitioners and sentenced them to suffer imprisonment from twelve (12) years and one (1) day of reclusion temporal, as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum. They were also ordered to pay jointly and severally the amount of P4,500.00 to the victim.6 The trial court gave full credence to the testimonies of the prosecution. It noted that the defenses raised by petitioners, which were not corroborated, cannot prevail over the clear and positive identification made by the complainant. The trial court also pointed out that the prosecution's witnesses "did not have any motive to perjure against the petitioners." Petitioners appealed to the Court of Appeals, ascribing as errors, the conclusions of the trial court on the following issues, namely: (1) the positive identification of the perpetrators; (2) the accordance of evidentiary weight to the conflicting testimonies of the victim and the police officer; (3) the disregard of evidence adduced by Sayoc; and (4) the failure to declare as illegal the arrest of Santos.7

Petitioners filed the instant petition,10 relying on the same arguments presented before the lower courts. Petitioners again raise as issues the credibility of the prosecution witnesses with respect to the identification of the perpetrators, the legality of their arrest and the failure of the judgment of conviction in stating the legal basis in support thereof.11 Settled is the rule that in criminal cases in which the penalty imposed is reclusion temporal or lower, all appeals to this Court may be taken by filing a petition for review on certiorari, raising only questions of law.12 It is evident from this petition that no question of law is proffered by petitioners. The principal issue involved is the credibility of the prosecution witnesses. It bears stressing that in criminal cases, the assessment of the credibility of witnesses is a domain best left to the trial court judge. And when his findings have been affirmed by the Court of Appeals, these are generally binding and conclusive upon this Court.13 The rationale of this rule lies on the fact that the matter of assigning values to declarations on the witness stand is best and most commonly performed by the trial judge who is in the best position to assess the credibility of the witnesses who appeared before his sala, as he had personally heard them and observed their deportment and manner of testifying during the trial.14 The findings of fact made by the trial court were substantially supported by evidence on record. Therefore, we are constrained not to disturb its factual findings. Petitioners contend that the identification made by the prosecution witnesses is not positive, clear and convincing. They argue that extreme fear, stress and anxiety may have contributed to the hazy recollection of the victim pertaining to the identification of the perpetrators. With respect to the police officer, on the other hand, petitioners insist that the former did not personally see the petitioners actually committing the crime charged. Petitioners' weak denial, especially when uncorroborated, cannot overcome the positive identification of them by the prosecution witnesses. As between the positive declarations of the prosecution witnesses and the negative statements of the accused, the former deserve more credence and weight.15 As found by the trial court, Jaen and the police officer were able to identify the petitioners, as among those who staged the robbery inside the bus, thus: Based on the testimonies of the complainant and PO1 Remedios Terte, the accused were clearly and positively identified as the three men who staged the robbery/ hold-up inside the California bus. It was Ricardo Santos who announced the hold-up after which he pointed a knife at the neck of the complainant while Teodoro Almadin divested him of his jewelry. Romeo Sayoc held everyone at bay by threatening to explode a hand grenade if anyone moved.16 Petitioners also anchor their defense on the alleged inconsistencies of the testimonies of the prosecution witnesses, such as: 1. During the direct examination, the police officer testified that she was seated on the first row at the driver's side, while on cross-examination, she stated that she was actually seated on the seventh row;17 2. On direct examination, the police officer testified that when somebody announced the holdup, the latter was seated on the right side of the bus near her, on cross-examination however, she stated that her back was turned against the person who announced the holdup;18 3. On cross-examination, the police officer stated that after the holdup, one civilian together with the victim alighted from the bus. However, the victim did not mention any civilian who got off the bus with him;19 4. The police officer averred that after the holdup, about three (3) persons proceeded towards the direction of Cubao, only to retract her statement later, to the effect that these persons turned left towards a street;20 5. During the cross-examination, the police officer witnessed a civilian calling 117 while she was running after the perpetrators. This was not mentioned in her direct-examination. Jaen, on the other hand, never mentioned such call.21

6. The police officer testified during the direct examination that she saw Sayoc "inside" an "owner-type" jeep, only to change it later to "underneath" the vehicle.22 7. The victim testified that it took the petitioners five to ten minutes to rob him while the police officer stated that it took them about five minutes.23 The variance in the testimonies of the prosecution witnesses is too trivial to affect their credibility. This Court maintains that minor inconsistencies in the narration of a witness do not detract from its essential credibility as long as it is on the whole coherent and intrinsically believable. Inaccuracies may in fact suggest that the witness is telling the truth and has not been rehearsed as it is not to be expected that he will be able to remember every single detail of an incident with perfect or total recall. The positive identification of the petitioners as perpetrators made by the victim himself and the police officer cannot be overthrown by the weak denial and alibi of petitioners. Moreover, there is no shred of evidence to show that the police officer was actuated by improper motives to testify falsely against the petitioners. Her testimony deserves great appreciation in light of the presumption that she is regularly performing her duties. The contention of Santos that he was illegally arrested and searched deserves scant consideration. As held by the trial court, Santos was not arrested, instead, he voluntarily surrendered to the barangay officials, and no countervailing evidence to dispute this fact appears from the record. Finally, petitioners argue that the appellate court's decision failed to conform to the standards set forth in Section 14,24 Art. VIII of the 1987 Constitution and Section 2,25 Rule 120 of the Rules of Court. We are not convinced. The appellate court did not merely quote the facts presented by the trial court, it arrived at its own findings. After citing and evaluating the evidence and arguments presented by both parties, the appellate court favored the prosecution. It dealt with the issues submitted by petitioners, albeit in a concise manner. This constitutes sufficient compliance with the constitutional and statutory mandate that a decision must state clearly and distinctly the facts and law on which it is based. We disagree, however, with the penalty imposed by the lower court. The penalty for simple highway robbery is reclusion temporal in its minimum period. However, consonant with the ruling in the case of People v. Simon,26 since P.D. No. 532 is a special law which adopted the penalties under the Revised Penal Code in their technical terms, with their technical signification and effects, the indeterminate sentence law is applicable in this case. Accordingly, for the crime of highway robbery, the indeterminate prison term is from seven (7) years and four (4) months of prision mayor, as minimum, to thirteen (13) years, nine (9) months and ten (10) days of reclusion temporal, as maximum.27 WHEREFORE, this Court AFFIRMS WITH MODIFICATION the findings of fact and conclusions of law in the Decision dated 30 January 2002 of the Court of Appeals in CA-G.R. CR No. 24140, finding appellants Romeo Sayoc and Ricardo Santos guilty beyond reasonable doubt of simple highway robbery. Appellants are hereby sentenced to the indeterminate penalty of seven (7) years and four (4) months of prision mayor, as minimum, to thirteen (13) years, nine (9) months and ten (10) days of reclusion temporal, as maximum, and to pay jointly and severally the amount of P4,500.00 to the private complainant, Elmer Jaen as their civil liability, with legal interest from the filing of the Information until fully paid. Since appellants are detention prisoners, they shall be credited with the period of their temporary imprisonment. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-28547 February 22, 1974 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN GORRICETA, accused. ELIAS JARANILLA, RICARDO SUYO, and FRANCO BRILLANTES, defendants-appellants. AQUINO, J.: This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the decision of the Court of First Instance of Iloilo, which convicted them of robbery with homicide, sentenced each of them to reclusion perpetua and ordered them to pay solidarily the sum of six thousand pesos to the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin Baylon as the value of fighting cocks (Criminal Case No. 11082).chanroblesvirtualawlibrary chanrobles virtual law library The evidence for the prosecution shows that at around eleven o'clock in the evening of January 9, 1966, Gorriceta, who had just come from Fort San Pedro in Iloilo City, was driving a Ford pickup truck belonging to his sister, Remia G. Valencia. While he was in front of the Elizalde Building on J. M. Basa Street, he saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They hailed Gorriceta who stopped the truck. Jaranilla requested to bring them to Mandurriao, a district in another part of the city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his way home.chanroblesvirtualawlibrary chanrobles virtual law library Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla ostensibly had to get something from his uncle's place. So, Jaranilla, Brillantes and Suyo boarded the pickup truck which Gorriceta drove to Mandurriao.chanroblesvirtualawlibrary chanrobles virtual law library Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to seventy meters from the provincial hospital. Jaranilla, Suyo and Brillantes alighted from the vehicle. Jaranilla instructed Gorriceta to wait for them. The trio walked in the direction of the plaza. After an interval of about ten to twenty minutes, they reappeared. Each of them was carrying two fighting cocks. They ran to the truck.chanroblesvirtualawlibrary chanrobles virtual law library Jaranilla directed Gorriceta to start the truck because they were being chased. Gorriceta drove the truck to Jaro (another district of the city) on the same route that they had taken in going to Mandurriao.chanroblesvirtualawlibrary chanrobles virtual law library It is important to note the positions of Gorriceta and his three companions on the front seat of the track. Gorriceta the driver, was on the extreme left. Next to him on his right was Suyo. Next to Suyo was Brillantes. On the extreme right was Jaranilla.chanroblesvirtualawlibrary chanrobles virtual law library While the truck was traversing the detour road near the Mandurriao airport, then under construction, Gorriceta saw in the middle of the road Patrolmen Ramonito Jabatan and Benjamin Castro running towards them. Gorriceta slowed down the truck after Patrolman Jabatan had fired a warning shot and was signalling with his flashlight that the truck should stop. Gorriceta stopped the truck near the policeman. Jabatan approached the right side of the truck near Jaranilla and ordered all the occupants of the truck to go down. They did not heed the injunction of the policeman.chanroblesvirtualawlibrary chanrobles virtual law library Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a sudden, shot Patrolman Jabatan. The shooting frightened Gorriceta. He immediately started the motor of the truck and

drove straight home to La Paz, another district of the city. Jaranilla kept on firing towards Jabatan.chanroblesvirtualawlibrary chanrobles virtual law library Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked the truck inside the garage. Jaranilla warned Gorriceta not to tell anybody about the incident. Gorriceta went up to his room. After a while, he heard policemen shouting his name and asking him to come down. Instead of doing so, he hid in the ceiling. It was only at about eight o'clock in the morning of the following day that he decided to come down. His uncle had counselled him to surrender to the police. The policemen took Gorriceta to their headquarters. He recounted the incident to a police investigator.chanroblesvirtualawlibrary chanrobles virtual law library Victorino Trespeces, whose house was located opposite the house of Valentin Baylon on Taft Street in Mandurriao, testified that before midnight of January 9, 1966, he conducted a friend in his car to the housing project in the vicinity of the provincial hospital at Mandurriao. As he neared his residence, he saw three men emerging from the canal on Taft Street in front of Baylon's house. He noticed a red Ford pickup truck parked about fifty yards from the place where he saw the three men. Shortly thereafter, he espied the three men carrying roosters. He immediately repaired to the police station at Mandurriao. He reported to Patrolmen Jabatan and Castro what he had just witnessed. The two policemen requested him to take them in his car to the place where he saw the three suspicious-looking men. Upon arrival thereat, the men and the truck were not there anymore.chanroblesvirtualawlibrary chanrobles virtual law library Trespeces and the policemen followed the truck speeding towards Jaro. On reaching the detour road leading to the airport, the policemen left the car and crossed the runway which was a shortcut. Their objective was to intercept the truck. Trespeces turned his car around in order to return to Mandurriao. At that moment he heard gunshots. He stopped and again turned his car in the direction where shots had emanated. A few moments later, Patrolman Castro came into view. He was running. He asked Trespeces for help because Jabatan, his comrade, was wounded. Patrolman Castro and Trespeces lifted Jabatan into the car and brought him to the hospital. Trespeces learned later that Jabatan was dead.chanroblesvirtualawlibrary chanrobles virtual law library Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police department, conducted an autopsy on the remains of Patrolman Jabatan. He found: (1) Contusion on left eyebrow.chanroblesvirtualawlibrary chanrobles virtual law library (2) Bullet wound one centimeter in diameter, penetrating left anterior axilla, directed diagonally downward to the right, perforating the left upper lobe of the lungs through and through, bitting the left pulmonary artery and was recovered at the right thoracic cavity; both thoracic cavity was full of blood. Cause of death: Shock, hemorrhage, secondary to bullet wound. Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock in the morning of January 10, 1966. He discovered that the door of one of his cock pens or chicken coops (Exhs. A and A-1) was broken. The feeding vessels were scattered on the ground. Upon investigation he found that six of his fighting cocks were missing. Each coop contained six cocks. The coop was made of bamboo and wood with nipa roofing. Each coop had a door which was locked by means of nails. The coops were located at the side of his house, about two meters therefrom.chanroblesvirtualawlibrary chanrobles virtual law library Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group of detectives came to his house together with the police photographer who took pictures of the chicken coops. The six roosters were valued at one hundred pesos each. Two days later, he was summoned to the police station at

Mandurriao to identify a rooster which was recovered somewhere at the airport. He readily identified it as one of the six roosters which was stolen from his chicken coop (Exh. B).chanroblesvirtualawlibrary chanrobles virtual law library Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with the aggravating circumstances of use of a motor vehicle, nocturnity, band, contempt of or with insult to the public authorities and recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was dismissed as to him.chanroblesvirtualawlibrary chanrobles virtual law library On February 2, 1967, after the prosecution had rested its case and before the defense had commenced the presentation of its evidence, Jaranilla escaped from the provincial jail. The record does not show that he has been apprehended.chanroblesvirtualawlibrary chanrobles virtual law library The judgment of conviction was promulgated as to defendants Suyo and Brillantes on October 19, 1967 when it was read to them in court. They signed at the bottom of the last page of the decision. There was no promulgation of the judgment as to Jaranilla, who, as already stated, escaped from jail (See Sec. 6, Rule 120, Rules of Court).chanroblesvirtualawlibrary chanrobles virtual law library However, the notice of appeal filed by defendants' counsel de oficio erroneously included Jaranilla. Inasmuch as the judgment has not been promulgated as to Jaranilla, he could not have appealed. His appeal through counsel cannot be entertained. Only the appeals of defendants Suyo and Brillantes will be considered.chanroblesvirtualawlibrary chanrobles virtual law library In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial court assumed that the taking of the six fighting cocks was robbery and that Patrolman Jabatan was killed "by reason or on the occasion of the robbery" within the purview of article 294 of the Revised Penal Code.chanroblesvirtualawlibrary chanrobles virtual law library In this appeal the appellants contend that the trial court erred in not finding that Gorriceta was the one who shot the policeman and that Jaranilla was driving the Ford truck because Gorriceta was allegedly drunk. Through their counsel de oficio, they further contend that the taking of roosters was theft and, alternatively, that, if it was robbery, the crime could not be robbery with homicide because the robbery was already consummated when Jabatan was killed.chanroblesvirtualawlibrary chanrobles virtual law library After evaluating the testimonies of Gorriceta and Brillantes as to who was driving the truck and who shot policeman, this Court finds that the trial court did not err in giving credence to Gorriceta's declaration that he was driving the truck at the time that Jaranilla shot Jabatan.chanroblesvirtualawlibrary chanrobles virtual law library The improbability of appellants' theory is manifest. The truck belonged to Gorriceta's sister. He was responsible for its preservation. He had the obligation to return it to his sister in the same condition when he borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo and when he allegedly invited them for a paseo. There is no indubitable proof that Jaranilla knows how to drive a truck.chanroblesvirtualawlibrary chanrobles virtual law library The theory of the defense may be viewed from another angle. If, according to the appellants, Gorriceta asked Jaranilla to drive the truck because he (Gorriceta) was drunk then that circumstance would be inconsistent with their theory that Gorriceta shot Jabatan. Being supposedly intoxicated, Gorriceta would have been dozing when Jabatan signalled the driver to stop the truck and he could not have thought of killing Jabatan in his inebriated state. He would not have been able to shoot accurately at Jabatan. But the

fact is that the first shot hit Jabatan. So, the one who shot him must have been a sober person like Jaranilla.chanroblesvirtualawlibrary chanrobles virtual law library Moreover, as Jaranilla and his two comrades were interested in concealing the fighting cocks, it was Jaranilla, not Gorriceta, who would have the motive for shooting Jabatan. Consequently, the theory that Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to be plausible.chanroblesvirtualawlibrary chanrobles virtual law library Was the taking of the roosters robbery or theft? There is no evidence that in taking the six roosters from their coop or cages in the yard of Baylon's house violence against or intimidation of persons was employed. Hence, article 294 of the Revised Penal Code cannot be invoked.chanroblesvirtualawlibrary chanrobles virtual law library Neither could such taking fall under article 299 of the Revised Penal Code which penalizes robbery in an inhabited house (casa habitada), public building or edifice devoted to worship. The coop was not inside Baylon's house. Nor was it a dependency thereof within the meaning of article 301 of the Revised Penal Code.chanroblesvirtualawlibrary chanrobles virtual law library Having shown the inapplicability of Articles 294 and 299, the next inquiry is whether the taking of the six roosters is covered by article 302 of the Revised Penal Code which reads: chanrobles virtual law library ART. 302. Robbery in an uninhabited place or in private building.-Any robbery committed in an uninhabited place or in a building other than those mentioned in the first paragraph of article 299, if the value of the property exceeds 250 pesos, shall be punished by prision correccional in its medium and maximum periods provided that any of the following circumstances is present: 1. If the entrance has been effected through any opening not intended for entrance or egress.chanroblesvirtualawlibrary chanrobles virtual law library 2. If any wall, roof, floor or outside door or window has been broken.chanroblesvirtualawlibrary chanrobles virtual law library 3. If the entrance has been effected through the use of false keys, picklocks or other similar tools.chanroblesvirtualawlibrary chanrobles virtual law library 4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle has been broken.chanroblesvirtualawlibrary chanrobles virtual law library 5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been removed, even if the same be broken open elsewhere.chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx In this connection, it is relevant to note that there is an inaccuracy in the English translation of article 302. The controlling Spanish original reads: ART. 302. Robo en lugar no habitado o edificio particular.-El robo cometido en un lugar no habitado o en un edificio que no sea de los comprendidos en el parrafo primero del articulo 299, ... . (Tomo 26, Leyes Publicas 479). The term "lugar no habitado" is erroneously translated. as "uninhabited place", a term which may be confounded with the expression "uninhabited place" in articles 295 and 300 of the Revised Penal Code, which is the translation of despoblado and which is different from the term lugar no habitado in article 302. The term lugar no habitado is the antonym of casa habitada (inhabited house) in article 299.chanroblesvirtualawlibrary chanrobles virtual law library

One essential requisite of robbery with force upon things under Articles 299 and 302 is that the malefactor should enter the building or dependency, where the object to be taken is found. Articles 299 and 302 clearly contemplate that the malefactor should enter the building (casa habitada o lugar no habitado o edificio). If the culprit did not enter the building, there would be no robbery with force upon things. (See Albert, Revised Penal Code, 1932 edition, p. 688).chanroblesvirtualawlibrary chanrobles virtual law library Thus, where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue, Manila and removed forty watches therefrom, the crime was theft and not robbery because he did not enter the building. The show-window was outside the store. (People vs. Adorno, CA 40 O. G. 567, per Montemayor, J., who later became a member of this Court). * In the instant case, the chicken coop where the six roosters were taken cannot be considered a building within the meaning of article 302. Not being a building, it cannot be said that the accused entered the same in order to commit the robbery by means of any of the five circumstances enumerated in article 302.chanroblesvirtualawlibrary chanrobles virtual law library The term "building" in article 302, formerly 512 of the old Penal Code, was construed as embracing any structure not mentioned in article 299 (meaning not an "inhabited house or public building or edifice devoted to worship" or any dependency thereof) used for storage and safekeeping of personal property. As thus construed, a freight car used for the shipment of sugar was considered a private building. The unnailing of a strip of cloth nailed over the door, the customary manner of sealing a freight car, was held to constitute breaking by force within the meaning of article 512, now article 302. (U.S. vs. Magsino, 2 Phil. 710).chanroblesvirtualawlibrary chanrobles virtual law library The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of Spain that a railroad employee who, by force, opens a sealed or locked receptacle deposited in a freight car, does not commit robbery. He is guilty of theft because a railroad car is neither a house nor a building within the meaning of article 302 which corresponds to article 525 of the 1870 Spanish Penal Code. Article 302 refers to houses or buildings which, while not actually inhabited, are habitable. Thus, a pig sty is not a building within the meaning of article 302. The stealing of hogs from a pig sty is theft and not robbery, although the culprit breaks into it. Article 302 refers to habitable buildings. (Guevara, Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo Codigo Penal 636-7, 642, which in turn cites the decisions of the Spanish Supreme Court dated March 2, 1886 and April 25, 1887). ** As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is known in the dialect as tangkal or kulungan, is about five yards long, one yard wide and one yard high. It has wooden stilts and bamboo strips as bars. The coop barely reaches the shoulder of a person of average height like Baylon. It is divided into six compartments or cages. A compartment has an area of less than one cubic yard. A person cannot be accommodated inside the cage or compartment. It was not intended that a person should go inside that compartment. The taking was effected by forcibly opening the cage and putting the hands inside it to get the roosters.chanroblesvirtualawlibrary chanrobles virtual law library Therefore, the taking of the six roosters from their coop should be characterized as theft and not robbery. The assumption is that the accused were animated by single criminal impulse. The conduct of the accused reveals that they conspired to steal the roosters. The taking is punishable as a single offense of theft. Thus, it was held that the taking of two roosters in the same place and on the same occasion cannot give rise to two crimes of theft (People vs. De Leon, 49 Phil. 437, citing decision of Supreme Court of Spain dated July 13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320; People vs. Villanueva, 49 O.G. 5448, L10239, August 7, 1953).chanroblesvirtualawlibrary chanrobles virtual law library Nocturnity and use of a motor vehicle are aggravating. Those circumstances facilitated the commission of the theft. The accused intentionally sought the cover of night and used a motor vehicle so as to insure the success of their nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People vs. Gardon, 104 Phil. 372).chanroblesvirtualawlibrary chanrobles virtual law library

Also to be appreciated against appellants Suyo and Brillantes is the aggravating circumstance of recidivism which was alleged in the information. They admitted their previous convictions for theft (130, 132 tsn; Exhs. I and J; Art. 14[9], Revised Penal Code).chanroblesvirtualawlibrary chanrobles virtual law library The theft of six roosters valued at six hundred pesos is punishable by prision correccional in its minimum and medium periods (Art. 309[3], Revised Penal Code). That penalty should be imposed in its maximum period because only aggravating circumstances are present (Art. 64[3], Revised Penal Code).chanroblesvirtualawlibrary chanrobles virtual law library Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. They are entitled to an indeterminate sentence (Sec. 2, Act No. 4103).chanroblesvirtualawlibrary chanrobles virtual law library With respect to the killing of Patrolman Jabatan, it has already been noted that the evidence for the prosecution points to Jaranilla as the malefactor who shot that unfortunate peace officer. The killing was homicide because it was made on the spur of the moment. The treacherous mode of attack was not consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil. 926; People vs. Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771).chanroblesvirtualawlibrary chanrobles virtual law library The twenty-four year old Jabatan was an agent of authority on night duty at the time of the shooting. He was wearing his uniform. The killing should be characterized as a direct assault (atentado) upon an agent of authority (Art. 148, Revised Penal Code) complexed with homicide. The two offenses resulted from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307; People vs. Lojo, Jr., 52 Phil. 390).chanroblesvirtualawlibrary chanrobles virtual law library The evidence for the prosecution does not prove any conspiracy on the part of appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired to steal the fighting cocks. The conspiracy is shown by the manner in which they perpetrated the theft. They went to the scene of the crime together. They left the yard of Baylon's residence, each carrying two roosters. They all boarded the getaway truck driven by Gorriceta.chanroblesvirtualawlibrary chanrobles virtual law library The theft was consummated when the culprits were able to take possession of the roosters. It is not an indispenable element of theft that the thief carry, more or less far away, the thing taken by him from its owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38 Phil. 754).chanroblesvirtualawlibrary chanrobles virtual law library It is not reasonable to assume that the killing of any peace officer, who would forestall the theft or frustrate appellants' desire to enjoy the fruits of the crime, was part of their plan. There is no evidence to link appellants Suyo and Brillantes to the killing of Jabatan, except the circumstance that they were with Jaranilla in the truck when the latter shot the policeman. Gorriceta testified that Suyo did not do anything when Jabatan approached the right side of the truck and came in close proximity to Jaranilla who was on the extreme right. Brillantes pulled his revolver which he did not fire (47, 53-55 tsn). Mere presence at the scene of the crime does not necessarily make a person a co-principal thereof.chanroblesvirtualawlibrary chanrobles virtual law library Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of taking the witness stand to refute the testimony of Gorriceta, Jaranilla escaped from jail. That circumstance is an admission of guilt.chanroblesvirtualawlibrary chanrobles virtual law library The instant case is different from People vs. Mabassa, 65 Phil. 568 where the victim was killed on the occasion when the accused took his chickens under the house. It is distinguishable from the People vs. Gardon, 104 Phil. 372 and People vs. Salamudin No. 1, 52 Phil. 670 (both cited by the Solicitor General) where the robbery was clearly proven and the homicide was perpetrated on the occasion of the robbery.

As already noted, theft, not robbery, was committed in this case.chanroblesvirtualawlibrary chanrobles virtual law library The situation in this case bears some analogy to that found in the People vs. Basisten, 47 Phil. 493 where the homicide committed by a member of the band was not a part of the common plan to commit robbery. Hence, only the person who perpetrated the killing was liable for robbery with homicide. The others were convicted of robbery only.chanroblesvirtualawlibrary chanrobles virtual law library There is a hiatus in the evidence of the prosecution as to the participation of Suyo and Brillantes in the killing of Jabatan by Jaranilla. As already stated, no robbery with homicide was committed. Therefore, it cannot be concluded that those two appellants have any responsibility for Jabatan's death. Their complicity in the homicide committed by Jaranilla has not been established.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and Franco Brillantes of robbery with homicide is reversed. They are acquitted of homicide on the ground of reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual law library As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they are (a) each sentenced to an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum and (b) ordered to indemnify solidarily the complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each appellant should pay one-third of the costs.chanroblesvirtualawlibrary chanrobles virtual law library As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon an agent of authority, trial court should render a new judgment consistent with this opinion (See Sec. 19, Art. IV, Constitution).chanroblesvirtualawlibrary chanrobles virtual law library So ordered. Zaldivar (Chairman), Fernando, Antonio and Fernandez, JJ., concur.

I would prefer to footnote Article 302 the same way Justice Luis B. Reyes of the Court of Appeals does, thus: The "uninhabited place" mentioned in Article 302 is a building, because paragraphs Nos. 1 and 3 speak of "entrance," which necessarily refers to a building. (The Revised Penal Code by Luis B. Reyes, Vol. II, 1968, p. 617.) In that way, I believe the true and correct meaning of the provision is clarified without attributing any possible misconstruction to faulty literal translation, which I am convinced does not exist. I reiterate, the error in translation noted in the main opinion is inevitable - for while the literal translation is indubitably accurate, on the other hand, as a matter of construction, the correct interpretation is different. Evidently, the Spanish text uses "lugar" for house, building or structure, and, to my mind, that is not the sense that word is usually understood in Spanish. But I agree that what is contemplated in Article 302 is not "despoblado" but simply an unoccupied or uninhabited house, building or structure. In other words, it appears that the correct expression that should be in Article 302 is "uninhabited house," disregarding, consequently, the inaccurate reference to "lugar" in the Spanish text and sticking, by way of construction, to the correct concept of the thing really contemplated.chanroblesvirtualawlibrary chanrobles virtual law library

Separate Opinions BARREDO, J., concurring: chanrobles virtual law library I concur.chanroblesvirtualawlibrary chanrobles virtual law library I am in full accord with the findings of fact and the legal rationalization and conclusions in the main opinion very ably written for the Court by Mr. Justice Aquino.chanroblesvirtualawlibrary chanrobles virtual law library I would like to make the observation, however, that I cannot find any error in the literal translation of the term "lugar no habitado" used in the controlling Spanish text Article 302 into "uninhabited place" appearing in the English version. The correct concept of the said term as used in Article 302 is indeed different from the "uninhabited place" contemplated in Articles 295 and 300, which means "despoblado" or open country - referring to a "lugar", meaning place, site or space where nobody lives or is usually found. And, of course, it is also clear to me that Article 302 refers to as an "uninhabited place" is really an unoccupied or uninhabited house, the antonym of the "casa habitada" referred to in Article 299. But I cannot bring self to the thought that the word "lugar" in Article 302 may literally be translated to anything else than "place, site space". I simply cannot see in it the specific connotation of house or building. Maybe it is the wording of the Spanish text that is somewhat inaccurate, unless it can be shown, which I am afraid cannot be done, that colloquially or somewhere in the Spanish speaking world, said word means house or building or any structure wherein personal properties may be deposited, stored or kept.chanroblesvirtualawlibrary chanrobles virtual law library

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-45129 March 6, 1987 PEOPLE OF THE PHILIPPINES, Petitioner, vs. THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, Respondents.chanrobles virtual law library FELICIANO, J.: chanrobles virtual law library In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information for theft filed against private respondent Manuel Opulencia on the ground of double jeopardy and denying the petitioner's motion for reconsideration.chanroblesvirtualawlibrary chanrobles virtual law library On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas Electric Light System, equipped with a search warrant issued by a city judge of Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by the private respondent Manuel Opulencia. The police discovered that electric wiring, devices and contraptions had been installed, without the necessary authority from the city government, and "architecturally concealed inside the walls of the building" 1 owned by the private respondent. These electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower or decrease the readings of electric current consumption in the electric meter of the said electric [ice and cold storage] plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a written statement that he had caused the installation of the electrical devices "in order to lower or decrease the readings of his electric meter. 3 chanrobles virtual law library On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not exceed thirty (30) days, or both, at the discretion of the court." 4 This information reads as follows: The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and penalized by the said ordinance, committed as follows: chanrobles virtual law library That from November, 1974 to February, 1975 at Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices to lower or decrease the consumption of electric fluid at the Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such unathorized installations of electric wirings and devices made by the accused, the City Government of Batangas was damaged and prejudiced in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine currency, covering the period from November 1974 to February, 1975, to the damage and prejudice of the City Government of Batangas in the aforestated amount of P41,062.16, Philippine currency.

The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he filed a motion to dismiss the information upon the grounds that the crime there charged had already prescribed and that the civil indemnity there sought to be recovered was beyond the jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, the Batangas City Court granted the motion to dismiss on the ground of prescription, it appearing that the offense charged was a light felony which prescribes two months from the time of discovery thereof, and it appearing further that the information was filed by the fiscal more than nine months after discovery of the offense charged in February 1975.chanroblesvirtualawlibrary chanrobles virtual law library Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of First Instance of Batangas, Branch 11, another information against Manuel Opulencia, this time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. This information read as follows: The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of theft, defined and penalized by Article 308, in relation to Article 309, paragraph (1) of the Revised Penal Code, committed as follows: chanrobles virtual law library That on, during, and between the month of November, 1974, and the 21st day of February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain and without the knowledge and consent of the Batangas Electric Light System, did then and there, wilfully, unlawfully and feloniously take, steal and appropriate electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage and prejudice of the said Batangas Electric Light System, owned and operated by the City Government of Batangas, in the aforementioned sum of P41,062.16. The above information was docketed as Criminal Case No. 266 before the Court of First Instance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged in the second information and that the filing thereof was violative of his constitutional right against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following paragraphs: The only question here is whether the dismissal of the first case can be properly pleaded by the accused in the motion to quash.chanroblesvirtualawlibrary chanrobles virtual law library In the first paragraph of the earlier information, it alleges that the prosecution "accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the City Government of Batangas, etc. " (Emphasis supplied). The first case, as it appears, was not simply one of illegal electrical connections. It also covered an amount of P41,062.16 which the accused, in effect, allegedly with intent to defraud, deprived the city government of Batangas. If the charge had meant illegal electric installations only, it could have alleged illegal connections which were done at one instance on a particular date between November, 1974, to February 21, 1975. But as the information states "that from November, 1974 to February 1975 at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices, etc." (Emphasis supplied), it was meant to include

the P 41,062.16 which the accused had, in effect, defrauded the city government. The information could not have meant that from November 1974 to 21 February 1975, he had daily committed unlawful installations.chanroblesvirtualawlibrary chanrobles virtual law library When, therefore, he was arraigned and he faced the indictment before the City Court, he had already been exposed, or he felt he was exposed to consequences of what allegedly happened between November 1974 to February 21, 1975 which had allegedly resulted in defrauding the City of Batangas in the amount of P 41,062.16. (Emphases and parentheses in the original) A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by the respondent Judge in an Order dated 18 November 1976.chanroblesvirtualawlibrary chanrobles virtual law library On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Court by the Acting City Fiscal of Batangas City on behalf of the People.chanroblesvirtualawlibrary chanrobles virtual law library The basic premise of the petitioner's position is that the constitutional protection against double jeopardy is protection against a second or later jeopardy of conviction for the same offense. The petitioner stresses that the first information filed before the City Court of Batangas City was one for unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of an ordinance of the City Government of Batangas. Only two elements are needed to constitute an offense under this City Ordinance: (1) that there was such an installation; and (2) no authority therefor had been obtained from the Superintendent of the Batangas City Electrical System or the District Engineer. The petitioner urges that the relevant terms of the City Ordinance - which read as follows: Section 3.-Connection and Installation chanrobles virtual law library (a) x x x chanrobles virtual law library (b) The work and installation in the houses and building and their connection with the Electrical System shall be done either by the employee of the system duly authorized by its Superintendent or by persons adept in the matter duly authorized by the District Engineer. Applicants for electrical service permitting the works of installation or connection with the system to be undertaken by the persons not duly authorized therefor shall be considered guilty of violation of the ordinance. would show that: The principal purpose for (sic) such a provision is to ensure that electrical installations on residences or buildings be done by persons duly authorized or adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It is primarily a regulatory measure and not intended to punish or curb theft of electric fluid which is already covered by the Revised Penal Code. 5 chanrobles virtual law library The gist of the offense under the City Ordinance, the petitioner's argument continues, is the installing of electric wiring and devices without authority from the proper officials of the city government. To constitute an offense under the city ordinance, it is not essential to establish any mens rea on the part of the offender generally speaking, nor, more specifically, an intent to appropriate and steal electric fluid.chanroblesvirtualawlibrary chanrobles virtual law library

In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite different essential elements. These elements are: 1. That personal property be taken; chanrobles virtual law library 2. That the personal property (taken) belongs to another; 3. That the taking be done with intent of gain; chanrobles virtual law library 4. That the taking be done without the consent of the owner; and 5. That the taking be accomplished without violence against or intimidation of persons or force upon things. 6 chanrobles virtual law library The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without illegal or unauthorized installations of any kind by, for instance, any of the following means: 1. Turning back the dials of the electric meter; chanrobles virtual law library 2. Fixing the electric meter in such a manner that it will not register the actual electrical consumption; chanrobles virtual law library 3. Under-reading of electrical consumption; and chanrobles virtual law library 4. By tightening the screw of the rotary blade to slow down the rotation of the same. 7 chanrobles virtual law library The petitioner concludes that: The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first inforrnation 8 chanrobles virtual law library The above arguments made by the petitioner are of course correct. This is clear both from the express terms of the constitutional provision involved - which reads as follows: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Emphasis supplied; Article IV (22), 1973 Constitution) 9 chanrobles virtual law library and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11 chanrobles virtual law library In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the City of Iloilo. The information charged him with having "wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile - "recklessly and without reasonable caution thereby endangering other vehicles and pedestrians passing in said street." Three months later, Yap was again charged in Criminal Case No. 16443 of the same Municipal Court, this time with serious physical injuries through reckless imprudence. The information charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and operating an

automobile in a reckless and negligent manner and as a result thereof inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the second information upon the ground that it placed him twice in jeopardy of punishment for the same act. This motion was denied by the respondent municipal judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the respondent municipal judge. The Court of First Instance of Iloilo having reversed the respondent municipal judge and having directed him to desist from continuing with Criminal Case No. 16443, the respondent Judge brought the case to the Supreme Court for review on appeal. In affirming the decision appealed from and holding that the constitutional protection against double jeopardy was available to petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion wrote: To begin with, the crime of damage to property through reckless driving - with which Diaz stood charged in the court of first instance - is a violation of the Revised Penal Code (third paragraph of Article 365), not the Automobile Law (Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice accused of a violation of the same law. Secondly, reckless driving and certain crimes committed through reckless driving are punishable under different provisions of said Automobile Law. Hence - from the view point of Criminal Law, as distinguished from political or Constitutional Law - they constitute, strictly, different offenses, although under certain conditions, one offense may include the other, and, accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as regards the other, as in the Diaz case. (Emphases in the original) chanrobles virtual law library Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (Emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense, whereas the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act provided that he is charged with different offenses, or the offense charged in one case is not included in or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case.chanroblesvirtualawlibrary chanrobles virtual law library The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443, petitioner could - if he failed to plead double jeopardy - be convicted of the same act charged in case No. 16054, in which he has already been acquitted. The information in case No. 16054 alleges, substantially, that on the date and in the place therein stated, petitioner herein had wilfully, unlawfully and feloniously driven and operated "recklessly and without reasonable caution" an automobile described in said information. Upon the other hand, the information in case No. 16443, similarly states that, on the same date and in the same place, petitioner drove and operated the aforementioned automobile in a "reckless and negligent manner at an excessive rate of speed and in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587,

and existing city ordinances." Thus, if the theories mentioned in the second information were not established by the evidence, petitioner could be convicted in case No. 16443 of the very same violation of municipal ordinance charged in case No. 16054, unless he pleaded double jeopardy.chanroblesvirtualawlibrary chanrobles virtual law library It is clear, therefore, that the lower court has not erred eventually sustaining the theory of petitioner herein. Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charge: the constitutional protection against double jeopardy is available only where an Identity is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses: the constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute.chanroblesvirtualawlibrary chanrobles virtual law library The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal ordinance and another offense under a national statute. If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities - though one be subordinate to the other - and the plea of double jeopardy would never lie. The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence. 13 chanrobles virtual law library The question of Identity or lack of Identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. The question of Identity of the acts which are claimed to have generated liability both under a municipal ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in time and space. When the acts of the accused as set out in the two informations are so related to each other in time and space as to be reasonably regarded as having taken place on the same occasion and where those acts have been moved by one and the same, or a continuing, intent or voluntary design or negligence, such acts may be appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a municipal ordinance and a national statute).chanroblesvirtualawlibrary chanrobles virtual law library In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the same act or sets of acts - that is, the operation of an automobile in a reckless manner. The additional technical element of serious physical injuries related to the physical consequences of the operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party. Clearly, such consequence occurred in the same occasion that the accused operated the automobile (recklessly). The moral element of negligence permeated the acts of the accused throughout that occasion.chanroblesvirtualawlibrary chanrobles virtual law library In the instant case, the relevant acts took place within the same time frame: from November 1974 to February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation of

electrical wiring and devices in his ice plant without obtaining the necessary permit or authorization from the municipal authorities. The accused conceded that he effected or permitted such unauthorized installation for the very purpose of reducing electric power bill. This corrupt intent was thus present from the very moment that such unauthorized installation began. The immediate physical effect of the unauthorized installation was the inward flow of electric current into Opulencia's ice plant without the corresponding recording thereof in his electric meter. In other words, the "taking" of electric current was integral with the unauthorized installation of electric wiring and devices.chanroblesvirtualawlibrary chanrobles virtual law library It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The Identity of offenses that must be shown need not be absolute Identity: the first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The law here seeks to prevent harrassment of an accused person by multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned in People vs. del Carmen et al., 88 Phil. 51 (1951): While the rule against double jeopardy prohibits prosecution for the same offense, it seems elementary that an accused should be shielded against being prosecuted for several offenses made out from a single act. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission, by simply adding or subtracting essential elements. Under the theory of appellant, the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from remaining a virgin. (88 Phil. at 53; emphases supplied) By the same token, acts of a person which physically occur on the same occasion and are infused by a common intent or design or negligence and therefore form a moral unity, should not be segmented and sliced, as it were, to produce as many different acts as there are offenses under municipal ordinances or statutes that an enterprising prosecutor can find chanrobles virtual law library It remains to point out that the dismissal by the Batangas City Court of the information for violation of the Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the crime" is one of the grounds for "total extinction of criminal liability." Under the Rules of Court, an order sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense. 15 chanrobles virtual law library It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case. It is difficult to summon any empathy for a businessman who would make or enlarge his profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense which he should have known had already prescribed. We are, however, compelled by the fundamental law to hold the protection of the right against double jeopardy available even to the private respondent in this case.chanroblesvirtualawlibrary chanrobles virtual law library The civil liability aspects of this case are another matter. Because no reservation of the right to file a separate civil action was made by the Batangas City electric light system, the civil action for recovery of civil liability arising from the offense charged was impliedly instituted with the criminal action both before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of

criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged. In the present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation having stolen electric current through the installation and use of unauthorized elibctrical connections or devices. While the accused pleaded not guilty before the City Court of Batangas City, he did not deny having appropriated electric power. However, there is no evidence in the record as to the amount or value of the electric power appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by the Court of First Instance (from which dismissals the Batangas City electric light system could not have appealed 17) before trial could begin. Accordingly, the related civil action which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or value of the electric power appropriated and converted by Manuel Opulencia and rendition of judgment conformably with such evidence.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as indicated above. No pronouncement as to costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.

Republic of the Philipppines SUPREME COURT Manila EN BANC [G.R. No. 124213. August 17, 1998] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DANTE ALFECHE y TAMPARONG, alias WILLY, and JOHN DOE, accused, DANTE ALFECHE y TAMPARONG, accused-appellant. DECISION PER CURIAM: Condemned to suffer the death penalty in each of two counts of rape by the Regional Trial Court of Ormoc City, Branch 12, in its Joint Decision[1] of 22 August 1995 in Criminal Cases Nos. 4615-0 and 4616-0, accused-appellant Dante Alfeche y Tamparong (hereafter DANTE) seeks the reversal of his conviction as we review the judgment now on automatic appeal to us pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of R.A. No. 7659.[2] chanroblesvirtualawlibrary The two cases were commenced by complaints signed by complainant Analiza Duroja (hereafter ANALIZA). The accusatory portion of the complaint in Criminal Case No. 4615-0 reads as follows: chanroblesvirtualawlibrary That on or about the 18th day of September 1994, at around 11:00 oclock in the morning, in Brgy. Canadieng, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused DANTE ALFECHE y Tamparong, Alias WILLY and JOHN DOE, in conspiracy with one another, treachery, and taking advantage of superior strength, by means of violence and intimidation, with the use of a knife, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant herein ANALIZA A. DUROJA, a 17 year old lass, against her will. chanroblesvirtualawlibrary In violation of Article 335, Revised Penal Code. chanroblesvirtualawlibrary The complaint in Criminal Case No. 4616-0[3] is similarly worded except as to the date and time the crime was committed, that is, on or about the 11th of September 1994, at around 10:30 in the evening. Only DANTE was apprehended. His co-accused Willy and John Doe have remained at large. chanroblesvirtualawlibrary DANTE waived preliminary investigation.[4] Upon arraignment, he entered a plea of innocence.[5] Since the two cases involved the same parties and common evidence, the trial court ordered their consolidation and joint trial.[6] chanroblesvirtualawlibrary The witnesses for the prosecution were ANALIZA, Sergio Dy, Francisca Duroja, Dr. Merly Tan, Dr. Regino Mercado, Dr. Rosemarie Cam, and Luz Lucero. The defense relied on the testimonies of DANTE, PS/Insp. Roel Acidre, Teresita Acain, Josephine Ollave, and Betty Orocay. chanroblesvirtualawlibrary ANALIZA started working as a domestic helper for Sergio Dy and his family in Barangay Can-adieng in Ormoc City, Leyte, on 9 March 1994. On 11 September 1994, at about 10:30 p.m., the Dy spouses were at Ipil, Leyte, attending a meeting of the Couples for Christ. Their two grown-up children were not at home either. Only ANALIZA and her one-year-old ward were left in the Dy residence. In accordance with her employers instructions, she locked only the kitchen door and placed a chair to the front door but kept it unlocked, as the Dys did not bring a key to the door. ANALIZA was watching television in the sala when she heard a sound from the front door, then somebody, whom she recognized as a certain Willy suddenly held her hand, gagged her mouth, and pointed a knife at her. Willy had two companions, but she recognized only one of the two, namely, DANTE. While she was thus gagged and held at the point of a knife, DANTE approached her and boxed her on her side, as a result of which she lost consciousness.[7] chanroblesvirtualawlibrary

Upon regaining consciousness some thirty minutes later, ANALIZA found her short pants removed and her private part bleeding, which was unusual because she was not menstruating before she was attacked. She immediately washed her private part and took a bath.[8] chanroblesvirtualawlibrary Her employers arrived at 12:30 a.m. the following day, but ANALIZA did not report the incident to them. Neither did she inform the authorities or her mother, who lived some houses away, because she was ashamed and also afraid of DANTEs threat that he would kill her mother if she told anyone about the incident.[9] chanroblesvirtualawlibrary ANALIZA had not engaged in sexual intercourse prior to this assault.[10] chanroblesvirtualawlibrary Again, on 18 September 1994, at about 11:00 a.m., ANALIZA was alone with her ward in the Dy residence. She was sauting pork when suddenly, the three accused again intruded into the house through the back door. Willy held her hand and gagged her mouth, while John Doe first turned off the stove and then laid her on the floor and pointed a knife at her. Thereupon, DANTE knelt on her legs, undressed her, inserted his private part into hers, and made a push and pull motion. Some five minutes later, DANTE stood up and immediately put on his pants. ANALIZA saw a whitish substance on her organ, which came from DANTE. The latter then placed her left hand on a table and drove a nail into it. DANTE and his companions forthwith left. The incident affected her work; nevertheless, she was able to finish preparing lunch for her employers, who arrived at noon.[11] chanroblesvirtualawlibrary ANALIZA reported to the police that her hand was injured, and sought medical attention therefor. She related nothing about the rape for fear that Dante would make good his threat to kill her mother. It was only after she took poison several times that her mother came to know of the rapes. She tried to kill herself because she was then pregnant and ashamed of what had happened to her. She gave birth to a boy on 27 May 1995.[12] chanroblesvirtualawlibrary Dr. Regino Mercado, City Health Officer of Ormoc City, examined ANALIZA on 18 September 1994 and found a [p]unctured wound over the base of left 4th posterior finger. He then issued a medical certificate. [13] According to him, the injury could have been caused by a sharp instrument, possibly a nail; and his interview of ANALIZA confirmed his theory. ANALIZA did not inform him who caused the injury. He further observed that ANALIZA seemed frightened and depressed, which he attributed to her recent ordeal. On cross-examination, Dr. Mercado stated that ANALIZA did not tell him that she was raped. Neither did she complain of pain in her vagina, nor did she request an examination of her private part.[14] chanroblesvirtualawlibrary Sergio Dy, ANALIZAs employer, declared that he was not at his home on 11 September 1994 between 8:00 and 11:00 p.m., as he was at a prayer meeting of the Couples for Christ in Ipil, Leyte. He instructed ANALIZA to close the door and windows of the house while he was away; and that if she felt sleepy while he was still away, she should place a chair at the door to shut it so that he could get inside the house without waking her. He arrived home at around 11:00 p.m. ANALIZA did not complain of any unusual incident. On 18 September 1994 between 9:00 and 11:00 a.m., Sergio was attending to his business at the corner of Hermosilla and Real Streets in Ormoc City. He had lunch at home at around noon, but again ANALIZA did not inform him of any unusual incident while he was away. On cross-examination, Sergio added that it was only sometime in March 1995 that ANALIZA told him that a person nailed her hand and that she was pregnant, but she never informed him that she was raped.[15] chanroblesvirtualawlibrary According to Francisca Duroja, her daughter ANALIZA was a tomboy and had, therefore, no boyfriend. She first learned that ANALIZA was pregnant when the latter attempted suicide by drinking poison sometime in March 1995 at the office of Engineer Lucero. She brought her daughter, who was already in a serious condition, to the Ormoc District Hospital. At the hospital ANALIZA explained that she attempted suicide because she became pregnant after she was raped; and she identified her assailants as DANTE, Willy, and an unknown person. Francisca and her daughter then went to the police to complain about the incident. After the rape charges were filed in court, a certain Joe Burgos came to her house and offered,

allegedly on behalf of DANTE, to settle the cases amicably, but she rejected the offer.[16] chanroblesvirtualawlibrary Dr. Merly Tan, a medical officer of the Department of Obstetrics and Gynecology at the Ormoc District Hospital, testified that ANALIZA was previously handled by the medical department when she attempted suicide. Later, or on 31 March 1995, she examined ANALIZA in connection with the rape incident. Her findings were summarized as follows: chanroblesvirtualawlibrary PHYSICAL EXAMINATION: chanroblesvirtualawlibrary Abdomen globularly enlarge[d] as to 8-9 months ACG chanroblesvirtualawlibrary INTERNAL EXAMINATION - admits two fingers with ease. chanroblesvirtualawlibrary Hymen - with 2,4,7,11 oclock laceration (old healed)[17] chanroblesvirtualawlibrary According to Dr. Tan, the hymenal lacerations could have been caused by sexual intercourse. Her examination of ANALIZAs uterus disclosed that the fetus was about 8 to 9 months old; however, since ANALIZA said that she was raped in September 1994, or about six months prior to the examination, Dr. Tan doubted her findings and requested an ultrasound test,[18] the result of which was not shown to her. [19] chanroblesvirtualawlibrary Dr. Rosemarie Cam, who was responsible for ANALIZAs pre-natal care, declared that ANALIZAs child was born on 27 May 1995 and could have been conceived on 11 September 1994 or 18 September 1994. She could not be certain as to the period of conception because she was unaware of ANALIZAs menstrual cycle. On cross-examination, she opined that it was also possible that the child was conceived earlier than 11 September 1994.[20] chanroblesvirtualawlibrary DANTE had another story to tell. chanroblesvirtualawlibrary He is a native of Zamboanga, grew up in Davao City, and came to be in Ormoc City because of his business of selling dried fish. He arrived in Ormoc City during the first week of January 1993 and stayed in the house of Mylene Ablen in Barangay Can-adieng, which was separated by a chapel from ANALIZAs house. ANALIZA, who was also known as Ethel in that Barangay, used to go to Ablens house to play computer games. Soon they became sweethearts. During the last week of January 1993, he took her to the Shalom Lodging House where he gave her P200, and they had sexual congress. They repeated their tryst in February 1993. They stopped seeing each other when he got involved with Naomi Marilao, whom he considered his common-law wife. He later lived with Teresa Acain, whom he met because Teresas mother retailed dried fish. He maintained a relationship with these three women only.[21] chanroblesvirtualawlibrary It was on 24 August 1994 that he eloped with Teresa Acain. Accompanied by a certain Babie, they went to the house of Josephine Ollave at Barangay Patag, Ormoc City, where they stayed until the end of September 1994. At around 10:30 p.m. of 11 September 1994, he was at Josephines house with Teresa and the other occupants thereof. Throughout his stay at Josephines house, he never went to Ormoc City proper. [22] chanroblesvirtualawlibrary However, on 16 September 1994, at around 6:00 p.m., he met with ANALIZA at the Boy Scout Canteen. He then asked her to check-in with him at the Rajah Lodging House because he had a reserved room there. She acquiesced, but once there he noticed that her tummy was already hard and that turned [him] off. He asked her whether it was true that three persons had trespassed her house and raped her. She confirmed the story, added that her hand had been pierced with a nail, and even showed him the location of her wound. But she did not divulge the identity of her assailants, much less accuse him of perpetrating the offense. She then asked for money, and he gave her P40. He first learned of the charge against him on 29 March 1995 when he was arrested.[23] DANTE denied knowing any Willy or John Doe. chanroblesvirtualawlibrary

On cross-examination, DANTE disclosed that while in transit at Cebu City, he met Mylene Ablen and her husband, who told him that there was a good business in Ormoc City. He was then traveling with card gamblers, being himself a hustler. In Ormoc City, Mylene told him that ANALIZA could be easily gotten if she was given money; hence, he surmised that ANALIZA was no longer a virgin. He then courted ANALIZA, and soon they became sweethearts. While he admitted having asked Joe Burgos for help, he denied having asked the latter to seek an amicable settlement of the case.[24] chanroblesvirtualawlibrary Teresita Acain, DANTEs alleged lover since June 1994 and who claimed to be married to him, testified that she was supposed to go to Tacloban City on 24 August 1994. Instead, she eloped with DANTE. Accompanied by Betty Orocay, they went to the residence of Josephine Ollave in Barangay Patag, Ormoc City, where they stayed until 27 September 1994. On 11 September 1994, at around 10:00 p.m., she and DANTE were just about to go to sleep at Josephines house. She could recall no instance when he left the room where they were staying. On 18 September 1994, at about 11:00 a.m., she and DANTE were cleaning Josephines house and tending to the pigs.[25] chanroblesvirtualawlibrary Josephine Ollave recalled that on 24 August 1994, at around 7:00 p.m., her sister Betty, together with DANTE and a certain Teresa, came to her house in Barangay Patag. She remembered the date because it was her sons birthday. Betty asked her to allow the couple to stay over because they had just eloped. Josephine acceded to the request. On 11 September 1994, at about 10:00 p.m., she was at home with her husband, DANTE, and Teresa. On 18 September 1994, at around 11:00 a.m., she, her husband, DANTE, and Teresa were tending to the hogs; after which DANTE went inside the house. DANTE and Teresa left her house during the last week of September 1994. On cross-examination she informed the court that her house was only a 30- to 40-minute ride away from Ormoc City by motorcab.[26] chanroblesvirtualawlibrary Police Inspector Roel Acidre, Commanding Officer of the Mobile Force Company of Ormoc City Police Command based in Camp Downes, Ormoc City, testified that on 18 September 1994, at around 8:00 p.m., Francisca Duroja and her daughter ANALIZA came to report that the latters hand was pierced with a nail by DANTE. Acidre told the two to go to any hospital for medical treatment and bring the result for appropriate legal action, but they never returned to the police station.[27] chanroblesvirtualawlibrary Betty Orocay testified that at around 4:00 p.m. of 16 February 1995 she saw DANTE enter the Boy Scout Canteen in Ormoc City while she was eating at the said establishment. She asked DANTE to join her for snacks, and the latter obliged. Later ANALIZA arrived, and DANTE approached her. Betty heard DANTE invite ANALIZA to a lodging house. Betty left the canteen and proceeded to Zenaidas Inn where she was to meet her boyfriend. At past 7:00 p.m. she saw DANTE proceed to the Rajah Lodging House. Afterwards, while Betty was having dinner with her boyfriend at the Inn, she saw ANALIZA go to that same lodging house.[28] chanroblesvirtualawlibrary Perceiving an attempt by the defense to destroy ANALIZAs credibility by portraying her as a prostitute and a woman of loose morals, the prosecution sought to prove ANALIZAs good moral character by presenting Luz Lucero as rebuttal witness. The 61-year-old Luz worked as a secretary to her husband and as a councilwoman in her barangay. She has known ANALIZA since the latter was a little girl, as ANALIZA lived only two houses away from their house. ANALIZA worked at the Lucero residence, washing clothes. About once a week, she would join the Luceros for a stroll at the plaza and for picnics. Later, she worked at the Dy residence; but after completing her chores for the Dys, ANALIZA would still play with the Lucero children at the latters house. Luz never saw this girl in the company of male friends despite her tomboyish behavior. ANALIZA could not be a prostitute; for if she were, Luz would not have allowed her children to befriend the former.[29] chanroblesvirtualawlibrary The trial court found the defense witnesses and the tale they spun not credible enough. It could not believe that DANTE, a fish vendor without extraordinary looks, could hook a 17-year-old virgin while he was still a stranger in her place; or that the same woman would jump to bed with him on the first opportunity to do so. On the other hand, it found ANALIZA to be a more credible witness, especially that she told her story in between sobs. Moreover, her positive testimony prevailed over DANTEs alibi. It found sufficient

reason for her delay in reporting her experience, and recognized that after drawing courage she went on to endure a public trial. It opined that even if DANTE and ANALIZA were sweethearts from January to February 1993, he could still have raped her on 11 and 18 September 1994. And although she was unconscious during the alleged rape on 11 September 1994, it believed that the circumstances, when collectively considered, were sufficient to establish the crime of rape. chanroblesvirtualawlibrary The trial court appreciated the aggravating circumstances of nighttime (in the case of the first rape) and dwelling against DANTE. It also recognized that the offense was committed by three persons and with the use of a knife. It then imposed the supreme penalty of death; thus: chanroblesvirtualawlibrary WHEREFORE, decision is hereby rendered in criminal case No. 4615 finding the accused DANTE ALFECHE guilty beyond reasonable doubt of rape defined and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659. Appreciating the aggravating circumstance of dwelling with no mitigating circumstance to offset it, this court imposes upon the same DANTE ALFECHE the penalty of DEATH. Decision is also hereby rendered in criminal case no. 4616 finding the accused DANTE ALFECHE guilty beyond reasonable doubt of rape defined and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659. Appreciating the aggravating circumstance of dwelling and nighttime with no mitigating circumstance to offset any of the two, this court imposes upon the said DANTE ALFECHE the penalty of DEATH. Further, the said Dante Alfeche is directed to indemnify ANALIZA DUROJA the sum of THIRTY THOUSAND PESOS in criminal case no. 4615 and the further sum of THIRTY THOUSAND PESOS in criminal case no. 4616 as compensation for moral damages, and to pay the cost. chanroblesvirtualawlibrary Since the penalty imposed was death, this case was brought to us for automatic review and judgment.[30] chanroblesvirtualawlibrary In his Appellants Brief, DANTE contends that the trial court gravely erred (a) in convicting him for two counts of rape and sentencing him to suffer the death penalty in each; and (b) in holding him liable to pay the complainant P60,000 as civil indemnity. chanroblesvirtualawlibrary DANTE maintains that the alleged rape on 11 September 1994 was not proved beyond reasonable doubt because ANALIZA was unconscious at the time and could not therefore testify as to the pertinent circumstances. On the other hand, the Office of the Solicitor General (OSG) claims that there were sufficient established circumstances to constitute an unbroken chain leading to no other hypothesis than that DANTE was guilty of the crime charged, and that these circumstances were sufficient to convict him. These circumstances were as follows: chanroblesvirtualawlibrary (a) While Analiza was watching television at her employers house on September 11, 1994 at around 10:30 in the evening, three (3) persons entered the house; (b) One of the men whom she knew as Willy suddenly held her hand, gagged her mouth and pointed a knife at her; (c) Another man whom she recognized as appellant approached her and boxed her at her side; (d) Because of appellants punch, Analiza lost consciousness; she regained consciousness about thirty (30) minutes later; and (e) When she woke up, Analiza felt something unusual; she noticed that her shorts had been removed and her vagina was bleeding. (Citations omitted). chanroblesvirtualawlibrary We agree with DANTE that the first alleged rape was not sufficiently proved. Since rape is not normally committed in the presence of witnesses,[31] the only evidence that can oftentimes be offered to establish the guilt of the accused is the complainants testimony.[32] Said testimony must be clear and positive to prove that the acts which constitute the elements of rape were committed.[33] Although ANALIZA was unconscious when the first rape was allegedly committed, she could have described circumstances constituting an unbroken chain of events that would indicate that the offense was actually perpetrated by the accused.[34] In this case, ANALIZAs unconsciousness broke the chain of events from which we could have inferred the occurrence of the offense. ANALIZAs testimony says as much: chanroblesvirtualawlibrary

PROS. FULACHE chanroblesvirtualawlibrary Q Why do you say that you do not know what was the cause of the bleeding in your sexual organ? chanroblesvirtualawlibrary COURT chanroblesvirtualawlibrary Q Before you became unconscious, were you bleeding already? chanroblesvirtualawlibrary A Not yet, Your Honor. chanroblesvirtualawlibrary COURT chanroblesvirtualawlibrary Continue. chanroblesvirtualawlibrary PROS. FULACHE chanroblesvirtualawlibrary So that you did not know what happened when you were unconscious? chanroblesvirtualawlibrary COURT chanroblesvirtualawlibrary Of course. chanroblesvirtualawlibrary WITNESS chanroblesvirtualawlibrary A I did not know anything, Sir.[35] chanroblesvirtualawlibrary As regards the second rape, DANTE again argues that the offense was never proved beyond reasonable doubt. The uncorroborated testimony of ANALIZA cannot be a basis for conviction.[36] Moreover, her testimony was contrary to human experience because the activities of the rapists, from their turning off the stove in the kitchen to the forced sexual intercourse, presumably coupled with resistance from her, could not have been accomplished in nine (9) minutes, even with military precision. Another source of doubt was her activity when the accused entered the kitchen. She testified that she had not yet prepared lunch; but, on cross-examination, she said that she was sauting vegetables, which she later changed to pork. DANTE maintains that the discrepancies are material because ANALIZA took pains to specify the acts of the accused in relation to what she was doing at the time; hence, her testimony as to what she was doing must be as consistent as her insistence on the alleged acts of the accused. chanroblesvirtualawlibrary The OSG states that the inconsistencies relied upon by DANTE refer to collateral and minor matters, which do not detract from ANALIZAs positive testimony. Even the most candid witnesses have been known to make inconsistent statements; but these do not necessarily impair their credibility and, instead, may even be a badge of truthfulness. What is significant is that ANALIZA categorically stated that the accused entered her employers house and sexually assaulted her. chanroblesvirtualawlibrary We believe that the aforementioned details the accuseds length of stay and the dish ANALIZA was preparing are insignificant. Since it was not shown that ANALIZA looked at a watch before and after the accuseds assault, she could not be expected to give an accurate appraisal of the accuseds length of stay. Furthermore, a misestimation of time is too immaterial to discredit the testimony of a witness, especially where time is not an essential element or has no substantial bearing on the fact of the commission of the offense.[37] Likewise, since several months passed before ANALIZA told her story to the trial court, she could not be expected to remember what dish she was preparing at the time unless the same had a significant connection with the events that transpired on that date. chanroblesvirtualawlibrary As the OSG emphasizes, the victim should not be presumed to have total recall of the incident.[38] Indeed, this Court cannot, in rape cases, expect the poor victim to give an accurate account of the traumatic and dreadful experience that she had undergone.[39] Neither inconsistencies on trivial matters nor innocent lapses affect the credibility of a witness.[40] On the contrary, they may be considered badges of veracity or manifestations of truthfulness on material points in the testimony.[41] Put in another way, minor inconsistencies even tend to strengthen rather than weaken the credibility of a witness because they erase any suspicion of rehearsed testimony.[42] At any rate, the circumstances mentioned by DANTE do not touch upon the area of inquiry, that is, the acts allegedly perpetrated by the accused which constituted the offense. chanroblesvirtualawlibrary DANTE also asserts that the element of force or intimidation indispensable in rape was not proved beyond reasonable doubt. ANALIZA testified that one of the accused, who was never identified, pointed a knife at her while DANTE was raping her. This testimony was inconsistent, uncorroborated, and incredible. Furthermore, ANALIZA gave no information on where or how she was threatened with the knife, or what the unidentified accused was doing with the knife while DANTE was raping her. She also failed to prove

any struggle against her attackers, which would preclude a finding that force or intimidation was employed.[43] chanroblesvirtualawlibrary The OSG claims that force and intimidation attended the commission of the second rape, consisting in (1) Willys holding ANALIZAs hand, gagging her mouth, and keeping her immobile on the floor; (2) John Does pointing a knife at her; and (3) DANTEs kneeling on her legs, further immobilizing her. chanroblesvirtualawlibrary We reiterate that for rape to exist, it is not necessary that the force or intimidation employed in accomplishing the crime be so great or of such character as could not be resisted. What is necessary is that the force or intimidation be sufficient to consummate the purpose which the accused had in mind.[44] We have also held that intimidation is addressed to the mind of the victim, and must be viewed according to her perception and judgment at the time of the commission of the offense.[45] ANALIZA elaborated on how she was held down by the three assailants. Regardless of how she was threatened with a knife, ANALIZA made it clear that she could not resist the accuseds attack. chanroblesvirtualawlibrary DANTE next disputes the application of the principle that no woman in her right senses would concoct a tale so repugnant to her virtue and undergo the rigors of a public trial concerning her very honor, because this is no guaranty that all self-inflicted indignities are for the sake of truth.[46] He theorizes that the said principle is applicable when the victim is between 12 and 16 years old and clad in the armor of innocence. A kindred test of the complainants credibility is her conduct after the alleged sexual assault. Such conduct must be consistent with human behavior; otherwise, the complainants uncorroborated testimony is deemed incredible.[47] DANTE maintains that ANALIZAs behavior after the rape rendered her allegations incredible. chanroblesvirtualawlibrary The OSG contends that there is no standard human response to a crime; hence, ANALIZAs opting to finish her chores after she was raped should not discredit her testimony. ANALIZA also gave a plausible explanation for her failure to report the rape, that is, she was ashamed and afraid. chanroblesvirtualawlibrary We disagree with DANTEs view that the complainants age is the basis for the application of the aforequoted principle. He even concedes that the precept has been employed in cases involving 17- and 18-year-old victims, as well as married women, where the circumstances so warrant.[48] Therefore, it is the totality of the circumstances, and not the victims age alone, which determines whether the principle should be applied. chanroblesvirtualawlibrary Anent the victims conduct following the alleged rape, there is no standard form of behavior in this regard. In one case, after having been raped, the victim accepted a P20 bill from the rapist and then went home. [49] In another case, some twelve hours after the rape, the victim accompanied her sister to attend a wake; and there she played card games and jumped with joy whenever she won.[50] In a few other cases, the victims merely kept silent about their harrowing experience despite opportunities to divulge the same.[51] In these examples the oldest of the victims was 16 years old, but we will not jump into the sweeping conclusion that the victims age is the controlling factor in upholding her credibility. It is more correct to state that the victims discernment of the consequences of the rape, in relation to her reaction to the offense, influences our assessment of the victims trustworthiness. Thus, in a case where the alleged victim was an adult, the absence of any manifestation of her outrage demonstrated the dubiousness of the charge[52] because the victim in such a case could be deemed to have sufficient recognition of the impact on her of the offense. chanroblesvirtualawlibrary ANALIZA was only 17 years old when she was sexually assaulted. Her educational attainment is Grade VI.[53] She lived most of her life as a servant of one household or another.[54] It was not shown that she was a woman of above average intelligence. chanroblesvirtualawlibrary

We must not discredit her story of rape merely because after the rape she did other things which could not be expected from one who had just been raped. In the first incident, ANALIZA simply washed her bloodied private part after she regained consciousness; and in the second incident, she finished her cooking. We have said before that the workings of the human mind when placed under emotional stress are unpredictable, and that people react differently. In such a given situation, some may shout; some may faint; and some may be shocked into insensibility; while others may openly welcome the intrusion.[55] chanroblesvirtualawlibrary As to ANALIZAs failure to immediately report her ordeal, the same was due mainly to her feeling of shame. We keep in mind the fact that ANALIZA grew up in the province under a code of behavior characterized by shyness and chastity. We also take judicial notice of the Filipinas inbred modesty and antipathy in airing publicly things which affect her honor.[56] Indeed, there are many victims of rape who would rather keep to themselves forever than make public a painful and humiliating secret.[57] chanroblesvirtualawlibrary Appreciating the foregoing circumstances together, we cannot expect ANALIZA to act in accordance with the norms of behavior demanded of mature women.[58] chanroblesvirtualawlibrary A review of her testimony convinces us with moral certainty that DANTE raped her on 18 September 1994. Further strengthening our conclusion is the fact that the trial judge gave full faith and credit to her testimony. It is doctrinally entrenched that the evaluation of the testimonies of witnesses by the trial court is received on appeal with the highest respect because such court has the direct opportunity to observe the witnesses on the witness stand and determine whether they are telling the truth or not.[59] As we stated in People v. De Guzman:[60] chanroblesvirtualawlibrary [T]he trial judge is able to detect that sometimes thin line between fact and prevarication that will determine the guilt or innocence of the accused. That line may not be discernible from a mere reading of the impersonal record by the reviewing court. The record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply. The record will not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a serenity that has nothing to distort or conceal. The record will not show if tears were shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only the judge trying the case can see all these and on the basis of his observations arrive at an informed and reasoned verdict.[61] chanroblesvirtualawlibrary Furthermore, no ulterior motive was shown by DANTE why ANALIZA would concoct a story of rape and openly accuse him thereof. It is settled that where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.[62] chanroblesvirtualawlibrary Against ANALIZAs story, DANTE has his alibi and tangential attack on the moral character of ANALIZA whom he pictured to us to be a prostitute. chanroblesvirtualawlibrary His alibi must fail not only because he was positively identified by ANALIZA as the one who raped her on 18 September 1994, but also because he was unable to prove the requisites of the defense of alibi. For alibi to prosper it is not enough to prove that the accused was somewhere else when the crime was committed, but he must also demonstrate that it was physically impossible for him to have been at the crime scene at the time the crime was committed.[63] Per his own evidence, DANTE was just in another barangay (Patag) in Ormoc City on 18 September 1994. He did not dare show how far is that to Barangay Can-adieng where the rape took place. chanroblesvirtualawlibrary As to the suggestion that ANALIZA was a prostitute, that alone, even if it be conceded, cannot absolve him of his liability for rape. First, prostitutes can be victims of rape.[64] Second, it was not shown that

ANALIZA remained a prostitute up to 18 September 1994. Our own meticulous review of the evidence convinces us that ANALIZA was not a prostitute; and the testimony of DANTE on this is simply incredible in itself, let alone the fact that we do not find him to be a credible person. For evidence to be believed it must not only proceed from the mouth of a credible witness, but must also be credible in itself. [65] To us, DANTE is a confessed scoundrel portraying himself to be a veritable Casanova whose story is gravid with implausibilities. chanroblesvirtualawlibrary The only issue left is the penalty which may be imposed on DANTE for the rape on 18 September 1994. The trial court imposed the death penalty pursuant to Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, in view of the finding that the crime was committed by three persons and with the use of a knife, and was attended with the aggravating circumstance of dwelling. chanroblesvirtualawlibrary It must be first observed that the complaints in Criminal Cases Nos. 4615-0 and 4616-0 charge DANTE and his co-accused with rape in violation of Article 335, Revised Penal Code, instead of Article 335, Revised Penal Code, as amended by R.A. No. 7659. Before Article 335 was amended by R.A. No. 7659 the penalty for rape when committed with the use of a deadly weapon or by two or more persons was reclusion perpetua to death. Its third paragraph read: chanroblesvirtualawlibrary Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. chanroblesvirtualawlibrary This paragraph was not touched by R.A. No. 7659. Nevertheless, from the ratification on 2 February 1987 of the Constitution until the effectivity of R.A. No. 7659 on 31 December 1993[66] the imposition of the death penalty was constitutionally prohibited pursuant to Section 14(2), Article III of the former.[67] chanroblesvirtualawlibrary The complaints in the cases below do not use the language of the law, viz., with the use of a deadly weapon or by two or more persons. In lieu of deadly weapon, the complaints use knife; and, there is no specific allegation that the crime was committed by two or more persons, but only an allegation of conspiracy among the three accused. These allegations are, however, sufficient for purposes of the abovequoted third paragraph of Article 335. chanroblesvirtualawlibrary A deadly weapon is any weapon or instrument made and designed for offensive or defensive purposes, or for the destruction of life or the infliction of injury; or one which, from the manner used, is calculated or likely to produce death or serious bodily harm.[68] In our jurisdiction, it has been held that a knife[69] is a deadly weapon. chanroblesvirtualawlibrary Also, since the complaints charge three persons with the crime of rape, namely, DANTE, alias Willy, and John Doe, who allegedly acted in conspiracy, it is too plain and obvious that two or more persons are alleged to have committed the crime. The evidence proved that, indeed, the three acted in concert to commit the crime of rape on 18 September 1994 charged in Criminal Case No. 4615-0. chanroblesvirtualawlibrary The foregoing notwithstanding, it is timely to remind prosecutors to exercise due care in the preparation of complaints or informations to the end that circumstances which by specific provisions of law change the nature of the crime or upgrade the penalty therefor must be specifically alleged using the language of the law.[70] chanroblesvirtualawlibrary Parenthetically, we also note that the complaints allege treachery as an aggravating circumstance. Under Article 14 of the Penal Code treachery is applicable only to crimes against persons. At the time ANALIZA was raped, rape was a crime against chastity, although under the Anti-Rape Law of 1997 (R.A. No. 8353), approved on 30 September 1997, rape is already a crime against persons. chanroblesvirtualawlibrary

By way of conclusion, we do not hesitate to rule that in Criminal Case No. 4615-0, the crime was committed with the use of a deadly weapon and by two or more persons under the third paragraph of Article 335 of the Revised Penal Code, as amended. The generic aggravating circumstance of dwelling[71] justified the imposition of the greater penalty of death.[72] Dwelling was clearly established during the cross-examination of ANALIZAs mother by the defense. Thus: chanroblesvirtualawlibrary Q Is it not a fact that Analiza was staying in the house of her employer Mr. and Mrs. Dy, the whole year of 1994? chanroblesvirtualawlibrary A Yes, sir. chanroblesvirtualawlibrary Q And being employed as domestic helper, Analiza would stay in the house of Mr. and Mrs. Dy day and night? chanroblesvirtualawlibrary A Yes, sir. chanroblesvirtualawlibrary Q And only very seldom that Analiza goes to your house? chanroblesvirtualawlibrary A Yes, sir.[73] chanroblesvirtualawlibrary Dwelling is considered an aggravating circumstance because primarily of the sanctity of privacy the law accords to human abode. The dwelling need not be owned by the victim.[74] Thus, in People v. Basa,[75] dwelling was appreciated, although the victims were killed while sleeping as guests in the house of another. As aptly stated in People v. Balansi:[76] [O]ne does not lose his right of privacy where he is offended in the house of another because as [an] invited guest [or a housemaid as in the instant case], he, the stranger, is sheltered by the same roof and protected by the same intimacy of life it affords. It may not be his house, but it is, even for a brief moment, home to him. He is entitled to respect even for that short moment. chanroblesvirtualawlibrary Premises considered, his conviction in Criminal Case No. 4615-0 and the penalty imposed, death, must stand. Four members of this Court maintain their position that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional; but they nevertheless submit to the ruling of the majority of the Court that the law is constitutional and the death penalty should be imposed in the case at bar. chanroblesvirtualawlibrary Lastly, we note that the trial court awarded moral damages only without the civil indemnity provided for in Article 345 of the Revised Penal Code. Pursuant to that Article and the latest case law,[77] ANALIZA should be awarded P75,000 as indemnity. As to moral damages, a conviction for rape may properly carry with it an award therefor.[78] Here we find the award justified because ANALIZA was compelled to attempt suicide out of shame of what had happened to her and of the resulting pregnancy. Given this extreme consequence of DANTEs offense, we raise the award of moral damages from P30,000 to P50,000. In addition, ANALIZA is entitled to an award of exemplary damages in the amount of P10,000 in view of the presence of one aggravating circumstance.[79] Furthermore, since ANALIZA begot a child by reason of the rape, DANTE must acknowledge and support the offspring pursuant to Article 345 of the Revised Penal Code in relation to Article 201 of the Family Code.[80] chanroblesvirtualawlibrary WHEREFORE, judgment is hereby rendered REVERSING the judgment in Criminal Case No. 4616-0 and ACQUITTING accused-appellant DANTE ALFECHE y Tamparong on ground of reasonable doubt. However, the judgment in Criminal Case No. 4615-0 convicting said accused-appellant of the crime of rape committed on 18 September 1994 and sentencing him to suffer the penalty of death is AFFIRMED, with the modification that (1) an indemnity is hereby imposed in the amount of P75,000; (2) the award of moral damages is increased from P30,000 to P50,000; and (3) exemplary damages in the amount of P10,000 is also awarded in favor of the victim ANALIZA DUROJA. chanroblesvirtualawlibrary Accused-appellant is further ordered to acknowledge and support the offspring born of the rape. The amount of support shall be determined by the trial court after due notice and hearing, with support in arrears to be reckoned from the date the appealed decision was promulgated by the trial court. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of the case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. chanroblesvirtualawlibrary Costs against the accused-appellant.chanroblesvirtualawlibrary SO ORDERED. chanroblesvirtualawlibrary

THIRD DIVISION [G.R. No. 138972-73. September 13, 2001] PEOPLE OF THE PHILIPPINES, plaintiff, vs. EUGENIO MARQUEZ y BRIONES, JOSE MAGTIBAY, ANSELMO MAGTIBAY and NICASIO BACOLO, accused, EUGENIO MARQUEZ y BRIONES, Appellant. DECISION PANGANIBAN, J.: We reiterate the doctrine that, in the assessment of the credibility of witnesses and their testimonies, the findings of trial courts deserve utmost respect. The Case Eugenio Briones y Marquez appeals the May 12, 1998 Judgment [1] rendered by the Regional Trial Court (RTC) of Lucena City, Branch 53. In Criminal Case No. 95-555, the RTC convicted him of frustrated robbery with homicide and frustrated homicide; and in Criminal Case No. 95-557, of illegal possession of firearm. The charges stemmed from a bus holdup, which resulted in the killing of the bus conductor and the wounding of a police officer on February 17, 1995. In Criminal Case No. 95-555, appellant, Jose Magtibay, Anselmo Magtibay and Nicasio Bacolo were charged in an Amended Information dated November 22, 1995, [2] as follows: That on or about the 17th day of February 1995, along Maharlika Highway at Barangay Sampaloc II, Municipality of Sariaya, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a caliber .38 Smith & Wesson revolver and bladed and pointed weapons, conspiring and confederating together and mutually helping one another, with intent to gain and to rob, by means of force, violence, threats and intimidation, did then and there willfully, unlawfully and feloniously hold-up JAC Liner bus with Plate No. NYE-839, thus performing all the acts of execution which should have produced the crime of robbery as a consequence, but which nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by the timely intervention of SPO1 Rizaldy Merene, one of the passengers of said bus; and that on the occasion of said robbery, said accused, still in pursuance of their conspiracy, with intent to kill and taking advantage of their superior strength, did then and there willfully, unlawfully and feloniously attack, and shoot with said firearm Joselito Estrareja Halum, the conductor of said bus, thereby inflicting upon the latter gunshot wound, which directly caused his death, and also inflicting gunshot wounds and injuries on vital part of the body of SPO1 Rizaldy Merene, thus performing all the acts of execution which should have produced the crime of homicide as a consequence, but which nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by the timely and able medical attendance rendered to said SPO1 Rizaldy Merene, which prevented his death.[3] In Criminal Case No. 95-557, appellant was indicted in an Information [4] dated May 24, 1995, as follows: That on or about the 17th day of February 1995, at Barangay Sampaloc II, Municipality of Sariaya, Province of Quezon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) caliber .38 revolver Smith and Wesson, by keeping and carrying the same without first securing the necessary license or permit, and further using the same in the commission of an offen[s]e. During his arraignment, [5] appellant, assisted by Counsel de Oficio Uldarico Jusi, pleaded not guilty. The other accused, except Jose Magtibay, remained at large. The two cases were consolidated and tried jointly. Thereafter, on May 12, 1998, the trial court rendered its assailed Decision, the dispositive portion of which reads as follows:

WHEREFORE, premises considered, the Court in Criminal Case No. 95-555 finds Eugenio Marquez y Briones guilty beyond reasonable doubt of the crime of frustrated robbery with homicide and frustrated homicide punished under Article 297 of the Revised Penal Code and applying the Indeterminate Sentence Law, with no mitigating or aggravating circumstance present, Eugenio Marquez is sentenced to suffer reclusion perpetua and he is ordered to pay the costs. Eugenio Marquez is ordered to pay the heirs of Joselito Halum P50,000.00 as death indemnity. He is also ordered to reimburse SPO1 Rizaldy Merene the sum of P9,000.00 which he incurred for his medical treatment. The case against Jose Magtibay is dismissed for insufficiency of evidence. His release from detention unless he is being detained for another cause, is ordered. In Criminal Case No. 95-557 the Court finds Eugenio Marquez y Briones guilty beyond reasonable doubt of the crime of illegal possession of firearm punished under Section I of Presidential Decree No. 1866 as amended by Republic Act No. 8294 and, applying the Indeterminate Sentence Law, [of] the commission of homicide as an aggravating circumstance. Eugenio Marquez is hereby sentenced to suffer the penalty of four (4) years and two (2) months of prision correccional as minimum to six (6) years of prision correccional as maximum and he is ordered to pay a fine of P15,000.00 and to pay the costs. The officer-in-charge of this court is directed to deposit the caliber .38 revolver Smith and Wesson (Exhibit A in Criminal Case No. 95-555 and Exhibit A in Criminal Case No. 95-557) and the envelope with the three (3) live bullets and one slug (Exhibit A-1 in Criminal Case No. 95-555 and Exhibit A-1 in Criminal Case No. 95-557) with the Philippine National Police at Camp Nakar, Lucena City, in accordance with existing rules.[6] The Facts Version of the Prosecution The solicitor general summarized the evidence for the prosecution in this wise: [7] [O]n the evening of February 17, 1995, a JAC Liner bus driven by Modesto Ferrer with Joselito Halum as conductor was on its way from Metro Manila to Lucena City. Among the passengers was SPO1 Rizaldy Merene of the Southern Police District Command. Merene was seated directly behind the driver (TSN, p. 3, February 9, 1996). Another passenger, Manuel Fleta, occupied the third seat on the left side of the bus. When the bus reached the Mazapan junction in Barangay Santo Cristo, Sariaya, Quezon, four men boarded the bus (TSN, p. 6, September 9, 1996). Two or three kilometers away from the Mazapan junction, two passengers stood up as if to alight from the bus (TSN, PP. 2-4, February 16, 1996[)]. When they reached the front portion of the bus, however, one of the men (later found to be appellant Marquez) poked a gun at the driver and announced a hold-up. His companion poked a knife at the conductor[.] Merene who was seated right behind quickly drew his firearm, but Marquez was able to fire at him first. Although hit, Merene returned fire. Panicking, Marquez and his companion jumped out of the bus. The conductor, Halum, fell to the floor of the bus, fatally wounded (TSN, pp. 4-7, February 9, 1996; pp. 7-8, September 9, 1996)[.] After the hold-up men left the bus, Merene asked the driver to bring him to the nearest hospital where he was treated for his wound. Manuel Fleta, who witnessed the announcement of the hold-up and the exchange of fire between one of the hold-up men and SPO1 Merene, went to the PNP Sariaya station to report the incident. Chief of Police

Concordio Tapulayan and PO3 Enrico Perez accompanied Fleta to the place where the incident happened and later to the Greg Hospital where SPO1 Rizaldy Merene was questioned (TSN, p. 12, December 16, 1996). While they were there, the police officers received a radio message from the Candelaria police station informing them that a wounded man was brought to the Bolaos Hospital in Candelaria (Ibid., at p. 13). This was followed by another broadcast declaring that the wounded man was transferred to the Quezon Memorial Hospital in Lucena City. With this information, PO3 Perez with two other policemen and Manuel Fleta went to the Quezon Memorial Hospital. At the emergency room there, Manuel Fleta identified the wounded man to the police officers as one of the hold-up men, Eugenio Marquez (TSN, pp. 14-15, December 16, 1996). At the time the hold-up inside the JAC Liner bus was taking place, spouses Mauricio and Zenaida Ilao and their children were watching a movie inside their house at Barangay Sampaloc II, Sariaya, Quezon. Their house was about 30 meters away from the Maharlika Highway and 100 meters away from the Lagnas bridge. A few minutes after the aborted hold-up (which the Ilao family was unaware of), a man suddenly appeared at the door of their house, naked above the waist, bloodied and asking for help (TSN, PP. 1-3, March 12, 1997). Mauricio asked the man if he knew a person in their barangay. The man mentioned the name of Julie Ann Veneosa who, the couple knew, was working at the poultry farm nearby. Zenaida Ilao, accompanied by her daughter Irene, went to fetch Julie Ann. They returned with Julie Ann on board a jeep (Ibid., p. 4). When Julie Ann arrived, she recognized him as Eugenio Marquez and immediately brought him to the hospital in Candelaria (Ibid., at p. 5). The next morning, Mauricio Ilao was surprised to find a firearm at the back of their house. He immediately went to the Sariaya police station to report this. Four policemen went with him to his house where the .38 caliber gun with three live bullets was found (TSN, pp. 18-19, March 12, 1997). Version of the Defense On the other hand, appellants version of the incident is as follows: [8] On February 17, 1995, herein accused-appellant went to the house of Julie Anne Venenosa, a distant relative and friend, in Montecillo, Sariaya, Quezon. Upon arriving thereat at about 6:00 in the evening, he was informed by Gladys Venenosa, mother of Julie Anne, that the latter was still at her work. After spending some ten (10) minutes in that house, he decided to go to the place of work of Julie Anne in Sampaloc II at Max Tabangcora Poultry, and he went to the junction at Sto. Cristo, Sariaya to wait for any passenger vehicle, and after sometime he hailed and boarded an air-conditioned bus, JAC Liner, with plate No. NYE 839, which was then with many passengers. He boarded said bus alone. After he ha[d] boarded the bus some other six passengers also hailed and boarded said bus. Reaching the place of his destination at Sampaloc II, Sariaya, he stood up and walked towards the conductor to tell the latter that he was unboarding, but when he was barely two seats away from the driver, herein accused-appellant heard some[one] saying hold-up ito, and saw a man poking his gun at the driver of the bus, and suddenly there was exchange of fire. He was about to go back to his seat but he was hit by a bullet. During the exchange of fire many of the passengers jumped out of the bus, and he also jumped out. After jumping out of the bus he saw a house, some twenty meters away, which [later], turned out to be owned by Zenaida Ilao, from whom he requested that his cousin Julie Anne Venenosa be fetched to take him to a hospital. First he was taken to Bolanos Hospital, then to Quezon Memorial Hospital, then later transferred to Philippine General Hospital, where he was confined for a week. When he was released from the hospital, he was taken by Sariaya Police to the Municipal Jail, and after two (2) months, he was transferred to the Provincial Jail[.] (TSN, Eugenio Marquez y Briones, August 11, 1997, pp. 3-10) When arraigned, he pleaded NOT GUILTY to the two (2) charges. Prosecution presented its witnesses and rested its case, and so with the defense. Herein accused-appellant himself testified in open court.

The Trial Courts Ruling In convicting appellant of frustrated robbery with homicide and frustrated homicide, the court a quo gave full faith and credence to the testimonies of the primary prosecution witnesses, SPO1 Rizaldy Merene and Manuel Fleta. It underscored their straightforward and cohesive identification of appellant as the culprit who had announced the holdup and exchanged gunfire with Merene, resulting in the wounding of the police officer and the killing of the bus conductor. The court a quo debunked the assertion of appellant that he was a mere passenger who had been injured in the crossfire. It was convinced that his actions and the circumstances surrounding the incident indubitably showed his participation in the attempted robbery, as well as in the consequent wounding of Merene and death of the bus conductor. The trial court likewise found appellant guilty beyond reasonable doubt of illegal possession of firearm. It stressed the fact that the gun which was subsequently identified by Merene as the weapon used in the attempted robbery -- was found at the back of Mauricio Ilags house, the place where appellant had sought solace after being injured. Hence, this appeal. [9] The Assigned Errors In his Brief, appellant bewails the following alleged errors of the trial court: I In convicting the accused on the basis of the testimonies of SPO1 Rizaldy Merene and Manuel Fleta, despite grave contradictions on material points in their testimonies, and in concluding that appellant was the same person who engaged in fire fight with said police officer, despite absence of any direct evidence, or sufficient circumstantial evidence pointing at him as the person who announced the hold up and as the person who engaged in the exchange of fire with said police officer. II In convicting the appellant of the crimes charged despite doubt as to his identity and culpability, and in not acquitting him on ground of reasonable doubt; in convicting the appellant under Section 1, PD 1866, despite the fact that the subject .38 revolver was not found in his possession.[10] The Courts Ruling The appeal is partly meritorious. First Issue: Credibility of Witnesses In impugning the testimonies of Prosecution Witnesses SPO1 Rizaldy Merene and Manuel Fleta, appellant points out the alleged ambivalence of their testimonies. He contends that these two witnesses differed in their narrations with regard to the positions of the holduppers and the bus conductor during the holdup, even if the two were then seated near them. That Merene admitted during trial that he was not sure if he had shot the holdupper during their gunfight is also stressed by appellant. The latter further avers that, before the holdup was announced, Fleta had been watching a bus movie and, during the gunfight, was crouching to avoid being hit; thus, this witness was not in a position to identify the culprit.

We are not persuaded. True, there is a marked discrepancy between the testimonies of Merene and Fleta as regards the whereabouts of the bus conductor before, during and immediately after the holdup. It must be noted, however, that the points of recall of the two witnesses were different. Merene was an active participant in the gunfight; thus, he could not be expected to remember the peripherals of the incident. Fleta was a passive eyewitness; as such, he was able to observe things that the former might have overlooked. Moreover, the Court has held that [t]otal recall or perfect symmetry is not required as long as witnesses concur on material points. [11] It must be emphasized that the above-mentioned testimonial disparity does not negate the fact that appellant was positively identified by both witnesses as the malefactor who had announced the holdup and exchanged gunshots with the police officer. There is no contrariety with regard to this vital fact. Both witnesses consistently, cohesively and certainly identified appellant as the culprit. Merene testified thus: Assistant Provincial Prosecutor Salamillas: Q SPO1 Merene[,] on February 18, 1995 at about seven oclock to seven twenty do you [still] recall where you were? A Yes sir. Q Where were you then? A I was abroad a bus JAC Liner Bus going to Lucena City from Manila. Q At that time were there other passengers in that JAC Liner bus? A Yes sir. Q How many of them if you know? A More or less fifteen passengers. Q When the bus that you were then boarding was at the vicinity of Sariaya, Quezon can you still recall if some unusual incident occurred during that time? A Yes sir, there was. Q What was that unusual incident that took place when the bus reached Sto. Cristo, Sariaya, Quezon? A Two passengers alighted before reaching the Lagnas Bridge. Four men stood up inside the bus and the one who was behind the driver announced a hold up. Q Where were the other three at that time? A One was positioned at the estribo running board, and the two were on the road. Four men alighted from the bus. Q You stated that two of the passengers went down the bus how did it happen that four men alighted from the bus? A When the two passengers alighted from the bus the two followed. Q Do you know what these two men who alighted ahead [of] the two passengers did? A One of the men poked a gun at the driver the other one poke[d] a knife [at] the conductor. COURT: Q Where was the conductor at that time? A On the road. Assistant Provincial Prosecutor Salamillas: Q Do you know why the conductor alighted from the bus? Atty. Jusi: Incompetent. COURT: Sustained. Assistant Provincial Prosecutor Salamillas: Q Where was the conductor at that time when the hold up was announced? A He was already on the ground near the door. Q Why was he [on] the ground near the door? Atty. Jusi: Incompetent. COURT: Sustained. Q What did you do Mr. Witness when you heard that there was an announcement of hold up? A As I was about to draw my .38 caliber firearm one of the hold[-]uppers who was poking his gun at the driver saw me and he suddenly poked his gun at me and immediately fired a shot.

COURT: Q How far were you from that holdupper who poked his gun at you? A One seat away. Q You were seated at the drivers side? A Yes your Honor. Assistant Provincial Prosecutor Salamillas: Q How many times were you fired upon by the holdupper? A Two times, sir. Q Were you hit by the second shot? A No sir. Q What did you do after you felt that you were hit? A I drew my .38 caliber gun and immediately fired at the holdupper. Q What happened to the holdupper who fired at you? A I think I hit the holdupper, after that he jumped out of the bus. COURT: At the time that you fired at the holdupper two of the robbers were already on the ground? A Yes your Honor. xxx Q And when the holdupper jumped out of the bus where was the fourth holdupper? A He was running away. Q What about the other passengers at the bus[,] do you know what happened to them? A They remained on their seats.[12] xxx Q If one or two of those persons [are] present in Court now will you be able to point [to] them? A Yes sir. Q Please point to him[.] A Witness pointing to accused Eugenio Marquez. Q What about the other person[,] can you point to him? A Accused pointing to accused Jose Magtibay. Q How about the two other holduppers[,] are [they] present in Court? A They are not here. Q If you will see them again [will] you recognize them? A Yes sir. Q Can you still recall what was the participation of the accused Eugenio Marquez? A He was the one who poked a gun at the driver and the one who shot me.[13] Fleta, the other witness, narrated the holdup incident in this manner: PROS. R. SALAMILLAS Q Where were you on February 17, 1995 at about 7:00 to 7:15 in the evening? A I was on board the passenger bus JAC Liner Bus, sir. xxx Q x x x [W]here did you come from at that time? A From San Pablo City, sir. Q In what particular place in the bus were you seated at that time? A At the 3 rd seat, right side of the conductor[] side. xxx COURT xxx Q [Was] there anything unusual that happened while the bus was negotiating the distance from San Pablo to Lucena City? A Yes, your Honor. Q What was that unusual incident? A There was a hold-up that happened, your Honor. xxx PROS. SALAMILLAS Q Will you please tell the Honorable Court how that hold-up took place? A At the junction near Mazapan, two passengers alighted from the bus then four (4) persons boarded the bus taking their seats at the different parts of the bus. xxx

PROS. SALAMILLAS Q What happened immediately before the hold-up? A Before the holdup one [of] the holduppers said, Dito na lang pala kami, sir. xxx Q Did the driver stop the bus? A Yes, your Honor. One of the holduppers announced it was a hold up and he raised the revolver he was holding. [14] xxx Q After the announcement of the hold-up, what happened? A There was an exchange of gunfire, sir. xxx Q x x x [W]here did the exchange of gunfire come from? A One coming from the person seated behind the drivers seat and the other one from the man beside the conductor who announced the hold-up sir. xxx Q What about the person who announced the hold-up, what happened to him? A They jumped out of the bus and they [fled], sir. xxx Q You said there were four men who held up this bus, if ever you will [see] them again will you be able to identify them? A I can recognize the one holding the revolver, sir. Q If that man is in court now will you be able to identify him? A Yes, sir. Q Will you please point to him. A That man, sir. (Witness pointing to a person who identified himself as Eugenio Marquez) [15] xxx ATTY. JUSI: Q You claimed that the alleged robber who sat across the place where you were [was] the one who announced the holdup? A Yes, sir. Q And after the announcement of the holdup it [was] also the person who announced the hold-up who raised his gun? A Yes, sir. Q And after the announcement of said hold up there was an exchange of fire? A Yes, sir. Q And you heard according to you four firing shots? A Yes, sir. Q And immediately after hearing the first firing shot you ducked at your seat and only after you stood up you found out that the conductor was lying face down and the person who identified himself as a policeman ordered the driver to bring him to the hospital, is that correct? A Yes, sir. Q You claimed during your direct testimony that the policeman who identified himself as such was seated at the back of the drivers seat? A Yes, sir. Q By your answer, do I get from you that the alleged holdupper was at the back of the policeman considering that according to you he was seated at the 3 rd seat? A No, sir. When he announced the hold up he was already there at the side of the driver. Q It is not correct to say that he was [on] the 3 rd seat when he announced the holdup? A I did not say that he was [on] the third seat, sir. COURT: Q The court would just like to find out if that man who was seated on the third seat behind the driver is the person who also said dito na lang po pala kami[?] A Yes, Your Honor, After that man said that he moved towards x x x the driver. ATTY. JUSI: Q And so he was on the right side of the driver when the shooting took place? A He was not on the right side, he was on the side of the driver and conductor when the shooting took place, sir.

Q When the alleged holdupper said that dito na lang po pala kami did this allege holdupper immediately [stand] up and [go] to the exit door of the bus? A No, sir. ATTY. JUSI: Q Before the two holduppers allegedly alighted from the bus, did you notice whether the bus conductor also alighted? A No, sir. Q You mean he stood still near the driver[] seat and [let] the two companions of the holdupper to go down? A Yes, sir. Q Before the exchange of fire that you claimed that you notice[d] did you see what kind of firearm the policeman was holding? A Revolver also, sir. Q And you cannot determine from whom or x x x how many shots were made by the policeman or the holdupper, only four shots were heard by you? A Yes, sir. ATTY. JUSI: Q You claimed that it was only on February 17, 1995 at 7:00 oclock in the evening more or less when you first saw the person whom you just identified? A Yes, sir. Q And the second time that you saw him according to you was x x x today, is that correct? A Yes, sir. Q Do you have [such] photographic memory to remember the face of a person after a lapse of one year? A I could remember, because that was a hold up, sir. Q How about the other companion of the person whom you had just identified, if you could see them again, could you recognize them? A What I can recognize only is the one who drew the gun and announced the holdup, aside from that I could not recognize the three others, sir.[16] The quoted testimonies of Merene and Fleta indubitably establish that on February 17, 1995, between 7:00 and 7:20 p.m., a JAC Liner bus going to Lucena City was held up; and that appellant was identified as the culprit who had announced the holdup and engaged Merene in a gunfight. The proximity of these witnesses to appellant, in addition to the fact that there was no showing of ill will or motive on their part, give credence to their testimonies. The Court regards as too incredulous appellants version of the holdup incident: that he was a mere passenger who -- caught, hit and wounded in the crossfire -- jumped off the bus to save himself. First, the JAC Liner bus was air-conditioned, and so its windows were closed. Thus, the passengers would not have been able to immediately open and jump from those windows. Second, because the gunfight happened in front, appellant could not have jumped out of the bus from its door, which was located near that area. Lastly, given his gunshot wounds, the flight of appellant from the scene of the crime casts doubts on his protestations of innocence; more important, he was positively identified as one of the culprits. We agree with the court a quos assessment of the credibility of the witnesses, specifically with regard to the identification of appellant. In this case, we adhere to the legal truism that such assessment is accorded great weight and respect, for the trial court had the opportunity to observe the witnesses demeanor and deportment as they testified before it. [17] Likewise, we hold that appellants denial cannot prevail over the positive identification by credible witnesses. [18] Second Issue: Crime and Punishment Appellant was charged with, and eventually convicted of, frustrated robbery with homicide and frustrated homicide, as well as violation of PD 1866 (illegal possession of firearms). In robbery with homicide, it is imperative that the prosecution prove a direct relation between the robbery and the killing. It must convincingly show that robbery was the original criminal design of the culprit, and

that homicide was perpetrated with a view to the consummation of the robbery, by reason or on occasion thereof. [19] That appellant intended to rob the passengers of the JAC Liner bus is evident. The robbery was foiled, however, when SPO1 Rizaldy Merene decided to fight back. Were it not for the presence and the bravery of this police officer, appellant and his cohorts would have successfully consummated their original plan. In the gunfight that ensued between appellant and Merene, bus conductor Joselito Halum was killed. Clearly, his death occurred by reason or as an incident of the robbery. Even if it was merely incidental (he was caught in the crossfire), still, frustrated robbery with homicide was committed. [20] With regard to the charge of frustrated homicide, appellant, in shooting Merene almost pointblank, had performed all the acts necessary to kill the latter, who survived because of timely medical intervention. Thus, appellants conviction for frustrated robbery with homicide and frustrated homicide must be sustained. On the other hand, we agree with the Office of the Solicitor General that the trial courts conviction of appellant for violation of PD 1866 should be reversed; he should be acquitted. In crimes involving illegal possession of firearm, the prosecution has the burden of proving the following: (1) the existence of the subject firearm and (2) the fact that the accused who owns it does not have a license or permit to carry it. [21] In the present case, it must be emphasized that the subject gun was not found in the possession of appellant; rather, it was discovered at the back of the house of Mauricio Ilao, from whom the former had sought solace after the holdup incident. While the prosecution, considering the circumstances, assumes that the gun was brought there by appellant, such conjecture does not satisfy the elements of the crime; it is clearly not enough to prove beyond reasonable doubt that he was guilty of illegal possession of firearm. Furthermore, in People v. Molina, [22] this Court has ruled that the use of an unlicensed firearm merely aggravates a killing and may no longer be the source of a separate conviction for the crime of illegal possession of a deadly weapon. This doctrine was reiterated in People v. Feloteo [23] and People v. Narvasa. [24] In People v. Macoy [25] it was held that, being favorable to the accused, the same may be invoked even if the illegal possession had been committed prior to the effectivity of RA 8294 on July 6, 1997. [26] In view, however, of the failure of the prosecution to prove illegal possession on the part of appellant, we cannot even apply the Molina doctrine to aggravate the penalty. WHEREFORE , the appeal is PARTIALLY GRANTED. The Decision of the Regional Trial Court in Criminal Case No. 95-557 is REVERSED and SET ASIDE, and Appellant Eugenio Briones y Marquez is hereby ACQUITTED of violation of PD 1866. However, his conviction for frustrated robbery with homicide and frustrated homicide, together with the penalty imposed by the trial court in Criminal Case No. 95-555, is AFFIRMED. SO ORDERED.

[G.R. No. 119696. August 18, 1997] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. RAZUL GUIAMIL y ANGKAT and MAGUID y KONTIER, Accused-Appellants. . DECISION BELLOSILLO, J.:chanroblesvirtualawlibrary RASUL GUIAMIL y ANGKAT and ABEDIN MAGUID y KONTIER were convicted of robbery with homicide by the Regional Trial Court of Manila and sentenced to reclusion perpetua and to pay the heirs of their victim P50,000.00 as civil indemnity and another P50,000.00 for funeral expenses, plus costs [1]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary On 31 May 1993, at about one-fifteen in the afternoon, appellants together with an unidentified person went in front of Lucky Jewelry Store located at 1043 Ongpin Street, Sta. Cruz, Manila. Appellant Abedin Maguid suddenly smashed the glass display window of the store and together with his companions took several rolls of jewelry worth P1,200,000. When Claude Masupil, one of the employees of the store, stood up to pursue the intruders, Maguid shot him to death.chanroblesvirtualawlibrary The store employees immediately radioed for police assistance. SPO3 Benjamin Gonzales, SP03 Wilfredo Salinel, SPO1 Eduardo Reyes, SP01 Sorel and SPO3 Caoc responded. As the policemen approached, Arturo Mayo, employee of the store, met SPO3 Salinel and pointed to him the direction where the robbers went some 10 meters away. SPO3 Salinel told the culprits to stop but they started to run away instead, so the lawmen gave chase. Maguid fired at SPO3 Salinel. The latter fired back hitting Maguid at the right portion of his back and the right side of his face. When Maguid fell, one of his companions grabbed his gun and ran away. SPO3 Salinel got hold of Maguid, searched him and found a plastic bag containing jewelry. SPO1 Reyes, on his part, apprehended appellant Razul Guiamil at Rizal Avenue.chanroblesvirtualawlibrary Dr. Manuel G. Lagonera conducted an autopsy on the body of Claude Masupil and certified that the cause of his death was hypovolemic shock secondary to a gunshot wound, left antero lateral thorax. [2]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary Appellants contend that the lower court erred (a) in not acquitting them on reasonable doubt as the physical evidence tended to show that the prosecution witnesses lied and in fact made it appear that accused Abedin Maguid was frontally shot after he allegedly exchanged shots with the police; (b) in failing to note that the testimonies of the two policemen were contrary to human experience and that their statements were replete with inconsistencies seriously affecting the validity of their testimonies; (c) in failing to observe that there was no proper identification or that their identification was clearly doubtful, inconclusive, with badges of fabrication; and, (d) in failing to consider the explanation of both accused that they were falsely implicated because the policemen feared they would be charged for having shot Abedin Maguid although accidentally.[3] chanroblesvirtualawlibrary The appellants claim that the evidence of the prosecution suffered from serious inconsistencies, e.g., (a) the testimony of SPO3 Salinel that appellant Maguid was facing him when he fired at the latter hitting him at his left eye,[4] is contrary to medical findings that the bullet entered through his right ear and exited at his left eye; (b) the statement of SPO3 Benjamin Gonzales that he and the policemen chased the robbers up to Rizal Avenue near Raon where they found appellant Rasul Guiamil slumped on the ground near another police officer, is contradicted by SPO2 Reyes in his statement that the police caught appellant Guiamil at the corner of Ronquillo in front of Uniwide at Rizal Avenue; (c) the policemen testified that a plastic bag of jewelry was recovered from Maguid at the time he was apprehended but no jewelry were presented in court by the prosecution; (d) the testimony of Arturo Mayo that he, together with the policemen, chased the robbers after which appellant Guiamil was shot by one of the policemen, is

contradicted by the evidence that it was appellant Abedin Maguid and not Guiamil who was shot.chanroblesvirtualawlibrary Appellants also argue that they were not properly identified by prosecution witnesses Galileo Mayo and Arturo Mayo as the robbers, and the latter was not even listed as one of the witnesses in the information. The crucial issue then depends on the correctness of the factual findings of the court a quo. The rule is settled that in the absence of any fact or circumstance of weight and influence which has been overlooked or the significance of which has been misconstrued as to impeach the findings of the trial court, the appellate courts will not interfere with the trial courts findings on the credibility of witnesses or set aside its judgment considering that it is in a better position to decide the question having heard the witnesses themselves during the trial.chanroblesvirtualawlibrary The matter of assigning values to declarations at the witness stand is best and most completely performed or carried out by a trial judge who, unlike appellate magistrates, can weigh such testimonies in the light of defendants behavior, demeanor, conduct and attitude at the trial, and the conclusions of trial courts command great weight and respect. In weighing contradictory declarations and statements, greater weight must generally be given to the positive testimony of the prosecution witnesses than to the denials of the defendant.[5]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary A careful review of the records will show that the witnesses for the prosecution positively identified the appellants as the persons who robbed Lucky Jewelry Store and on the occasion thereof appellant Maguid shot to death Claude Masupil, an employee of the store. The testimonies of these prosecution witnesses, especially Arturo Mayo, SPO3 Wilfredo Salinel and Galileo Mayo, were found by the trial court to be clear and credible. Hereunder is the testimony of Arturo Mayo -chanroblesvirtualawlibrary Q: Mr. Witness, do you remember where you were last May 31, 1993 at about 1:00 in the afternoon? chanroblesvirtualawlibrary A: At about 1:15 p.m. I was at the Lucky Jewelry store working xxxxchanroblesvirtualawlibrary Q: Now, do you remember any unusual incident that occurred during that afternoon? chanroblesvirtualawlibrary A: At that same time, the holduppers suddenly entered by breaking the glass and my cousin was shot by the holdupper.chanroblesvirtualawlibrary Q: How many holduppers x x x were there who entered the Lucky Jewelry Store? chanroblesvirtualawlibrary A: There were three (3), sir.chanroblesvirtualawlibrary Q: Did you see the faces of these holduppers?chanroblesvirtualawlibrary A: Yes, sir.chanroblesvirtualawlibrary Q: Now, will you please look around the courtroom and tell if any or all of those holduppers are around? chanroblesvirtualawlibrary A: They were (sic) here, sir, in this court.chanroblesvirtualawlibrary Q: Will you step down x x x of the witness stand and point to them?chanroblesvirtualawlibrary (At this juncture, the witness is stepping down x x x the witness stand and pointed (sic) to the accused in this case who, when asked, answered by the name of Razul Guiamil and Abedin Maguid). xxxxchanroblesvirtualawlibrary Q: You said earlier that the accused whom you pointed earlier broke the glass window, after they broke the glass window, what happened next? chanroblesvirtualawlibrary A: After the breaking of glass window my cousin suddenly stood up and right then and there he was shot by one of the holduppers. xxxxchanroblesvirtualawlibrary Q: Who shot your cousin?chanroblesvirtualawlibrary A: The one with eye patch.chanroblesvirtualawlibrary (At this juncture, the witness is pointing to the accused who, when asked his name, answered by the name of Abedin Maguid).chanroblesvirtualawlibrary Q: After accused Abedin Maguid shot your cousin, what happened next? chanroblesvirtualawlibrary A: My cousin stepped out of the store to see what happened outside, he was already wounded then (pero may tama na siya) and I followed him and I saw the holduppers, after which I saw a policeman also

chasing the holduppers and I also followed him and we caught first Razul Guiamil then there was a shoot out between the policeman and the holduppers after which one of the holduppers was shot by a certain policeman, and they got from him the jewelries. xxxxchanroblesvirtualawlibrary Q: Will you tell the Honorable Court what were inside the glass window that the accused broke? chanroblesvirtualawlibrary A: Pieces of jewelries (sic) like chain.chanroblesvirtualawlibrary Q: When the accused scampered away as you and your cousin as well as a certain policeman, as you mentioned earlier, went after the accused, were those pieces of jewelries (sic) still there at the broken glass window?chanroblesvirtualawlibrary A: No more, sir, they brought it with them.chanroblesvirtualawlibrary Q: When you said nila whom are you referring to?chanroblesvirtualawlibrary A: The two of them.chanroblesvirtualawlibrary (At this juncture, the witness is pointing to the two accused who were identified earlier as Razul Guiamil and Abedin Maguid).[6]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary Policeman Wilfredo Salinels testimony as to the circumstances leading to the arrest of the robbers was clear and straightforward -chanroblesvirtualawlibrary Q: Do you remember of any unusual incident that occurred during that day and time? chanroblesvirtualawlibrary A: I monitored from the radio that he asked for (an) assistance at the Lucky Jewelry Store. xxxxchanroblesvirtualawlibrary Q: And what was the emergency call all about?chanroblesvirtualawlibrary A: The call was sir, sir, may hold-up.chanroblesvirtualawlibrary Q: x x x x what did you do next, if any?chanroblesvirtualawlibrary A: I ran towards the Lucky Jewelry Store.chanroblesvirtualawlibrary Q: Did you reach the Lucky Jewelry Store?chanroblesvirtualawlibrary A: Before I reach (sic) the Lucky Jewelry Store, I heard a sound of a gunshot.chanroblesvirtualawlibrary Q: And upon hearing this gunshot, how did you react?chanroblesvirtualawlibrary A: I still proceed(ed) to the store and nakasalubong ko tong si Arturo Mayo... I met Arturo Mayo x x x xchanroblesvirtualawlibrary Q: When Arturo Mayo pointed to you the robbers, where were the robbers?chanroblesvirtualawlibrary A: They were then walking, sir, as Arturo Mayo pointed the robbers.chanroblesvirtualawlibrary Q: And you could see them walking.chanroblesvirtualawlibrary A: Yes, sir, because they were still near.chanroblesvirtualawlibrary Q: How near if you can estimate, Mr. Witness?chanroblesvirtualawlibrary A: May be about ten (10) meters, sir.chanroblesvirtualawlibrary Q: How many robbers were walking?chanroblesvirtualawlibrary A: Three (3), sir.chanroblesvirtualawlibrary Q: Now what did you do next upon Arturo Mayo pointing to you the robbers?chanroblesvirtualawlibrary A: I shouted at them to stop or else Ill (sic) shoot them.chanroblesvirtualawlibrary Q: And how did the robbers react if any upon hearing your directive at them to stop? chanroblesvirtualawlibrary A: The one wearing (with) green shirt look (sic) back.chanroblesvirtualawlibrary Q: Now, is that person you are referring now the one look back (sic), is he inside the courtroom? chanroblesvirtualawlibrary A: Yes, sir.chanroblesvirtualawlibrary Q: Will you please point to him?chanroblesvirtualawlibrary A: That man, sir.chanroblesvirtualawlibrary Q: Will you please step down from the witness stand and point to that person?chanroblesvirtualawlibrary (At this juncture, the witness is going down the witness stand and pointing to accused Abedin Maguid).chanroblesvirtualawlibrary Q: What about the two other robbers, are they inside the courtroom?chanroblesvirtualawlibrary A: I could not determine, sir, because the other two (2) did not look back.chanroblesvirtualawlibrary Q: Now, after the robber look(ed) back at you, what happened next, if any?chanroblesvirtualawlibrary A: He pulled out his gun but I fired my gun ahead of him after which they scampered away.chanroblesvirtualawlibrary Q: Who among the robbers drew his gun?chanroblesvirtualawlibrary

A: Abedin Maguid. xxxxchanroblesvirtualawlibrary Q: Now after Abedin Maguid fired a shot at you, what happened next, if any?chanroblesvirtualawlibrary A: I fired back at him.chanroblesvirtualawlibrary Q: And this time did you hit Abedin Maguid?chanroblesvirtualawlibrary A: Yes, sir. xxxxchanroblesvirtualawlibrary Q: When you hit Abedin Maguid, what happened to Abedin Maguid?chanroblesvirtualawlibrary A: He slumped, sir.chanroblesvirtualawlibrary Q: Did the other two (2) robbers react when Abedin Maguid fell?chanroblesvirtualawlibrary A: Yes, sir.chanroblesvirtualawlibrary Q: What were (their) reaction?chanroblesvirtualawlibrary A: One of his companions got his gun and scampered away. xxxxchanroblesvirtualawlibrary Q: So when you fell (sic) Abedin Maguid, what did you do next, if any?chanroblesvirtualawlibrary A: I went near him and frisked him.chanroblesvirtualawlibrary Q: What was the result of your frisk if any?chanroblesvirtualawlibrary A: I found inside his pants a plastic bag containing assorted jewelries (sic).[7]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary Aside from Arturo Mayo, his brother Galileo Mayo who was the manager of Lucky Jewelry Store, also positively identified the appellants as the culprits who robbed the store - chanroblesvirtualawlibrary Q: At about one oclock in the afternoon of May 31, 1993, you said there was a hold-up, will you tell us what happened on that particular time and date which you mentioned?chanroblesvirtualawlibrary A: We were surprised when there were male persons in front of our store and threw stone in front of our store and when the glass broke they got the jewelries (sic) inside the estante.chanroblesvirtualawlibrary Q: Now, you mentioned there were three persons and you pointed to only two inside the courtroom, what were their names?chanroblesvirtualawlibrary A: The two accused were Razul Guiamil and Abedin Maguid, sir.chanroblesvirtualawlibrary (At this juncture, the witness pointed to (a) person[s] when asked [their] name [they] gave [their] names as Razul Guiamil and Abedin Maguid).chanroblesvirtualawlibrary Q: How about the other person?chanroblesvirtualawlibrary A: I did not recognize the other one because it happened very suddenly.chanroblesvirtualawlibrary Q: What happened to the third person whom you failed to identify?chanroblesvirtualawlibrary A: I dont know because I am surprised of what happened and because I saw my nephew who was hit at that time.chanroblesvirtualawlibrary Q: What is the name of your nephew who was shot at that time?chanroblesvirtualawlibrary A: Claude Masupil.chanroblesvirtualawlibrary Q: Who shot your nephew?chanroblesvirtualawlibrary A: The one who has a patch in his eyes, the accused Abedin Maguid, sir.[8]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary In robbery with homicide cases, the prosecution need only to prove these elements: (a) the taking of personal property with violence or intimidation against persons or with force upon things; (b) the property taken belongs to another; (c) the taking be done with animo lucrandi; and, (d) on the occasion of the robbery or by reason thereof homicide in its generic sense was committed.[9]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary The evidence for the prosecution indubitably shows that after appellants broke the glass window of Lucky Jewelry Store, they took with them several pieces of jewelry. Immediately after the robbery, appellant Abedin Maguid shot the deceased Claude Masupil. The crime was witnessed by Galileo Mayo and Arturo Mayo who positively identified appellants as the persons who robbed their store and killed Masupil.chanroblesvirtualawlibrary The alleged inconsistencies of the prosecution witnesses refer only to minor details and not upon the basic aspects of the crime itself and therefore do not detract from the credibility of the witnesses.[10] A witness is not expected to remember an incident with perfect recollection down to the insignificant and littlest details. The most honest witness may make mistakes sometimes but such honest lapses do not necessarily

impair his credibility or destroy the essential integrity of the prosecution evidence as a whole. [11]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary The argument of appellants that they were framed up by the police officers to cover up the latters negligence for shooting Abedin Maguid is bereft of merit. There is no evidence that appellants filed a complaint or action for the alleged actuations of the policemen. When police officers have no motive for testifying falsely against the accused, courts are inclined to uphold the presumption of regularity in the performance of their duties. Moreover, the testimonies of the police officers jibe with those of the eyewitnesses on material points. When there is no showing that the principal witnesses for the prosecution were moved by improper motives, the presumption is that they were not so moved and their testimonies are entitled to full faith and credit.[12]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary Appellants rely heavily on denial to prove their innocence. Denial like alibi is inherently a weak defense and cannot prevail over the positive and credible testimony of the prosecution witnesses that the accused committed the crime.[13] In the instant case, the denial by appellants was unsubstantiated by clear and convincing evidence. The testimonies of appellants on their own version of the incident are negative and self-serving evidence which deserve no weight in law and cannot be given greater evidentiary value over the testimonies of credible eyewitnesses on affirmative matters.[14]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary Finally, appellants cannot fault the trial court for allowing the testimony in court of Galileo Mayo although he was not previously listed as one of the witnesses to be presented by the prosecution. The matter as to what evidence to present or who to present as witness is within the discretionary power of the prosecutor and definitely not for the courts to dictate.[15]chanroblesvirtuallawlibrary chanroblesvirtualawlibrary The trial court was correct in finding both appellants guilty of robbery with homicide although it was only appellant Abedin Maguid who actually shot and killed the victim. The rule is settled that whenever homicide has been committed as a consequence or on the occasion of robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special complex crime of robbery with homicide although they did not actually take part in the homicide.[16] The penalty for robbery with homicide under Art. 294, par. 1, of the Revised Penal Code is reclusion perpetua to death. But in the absence of aggravating circumstances, the lesser penalty of reclusion perpetua should be imposed.chanroblesvirtualawlibrary WHEREFORE, the Decision appealed from convicting accused-appellants RAZUL GUIAMIL y ANGKAT and ABEDIN MAGUID y KONTIER of the special complex crime of robbery with homicide and sentencing each of them to reclusion perpetua is AFFIRMED. Accused-appellants are further ordered to pay the heirs of Claude Masupil P50,000.00 as civil indemnity and P50,000.00 for funeral expenses. Costs against accused-appellants.chanroblesvirtualawlibrary SO ORDERED.chanroblesvirtualawlibrary

Republic of the Philippines SUPREME COURT Manila EN BANC [G.R. No. 117106. June 26, 1996] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, JIMMY ALBERCA, Accused-Appellant. DECISION PER CURIAM:chanroblesvirtualawlibrary This case is here on appeal from the judgment dated August 11, 1994[1] of Branch 104 of the Regional Trial Court of Quezon City, finding accused-appellant Jimmy Alberca guilty beyond reasonable doubt of the crime of Robbery with Homicide and Physical Injuries[2] and sentencing him to death. Accusedappellant was in addition ordered to indemnify the heirs of Felipe Climaco in the amount of P50,000.00 and to pay the Triad Security and Allied Services, Inc. the amount of P10,000.00 for the value of one (1) . 38 cal. Revolver, which had been taken from the victim by one of the malefactors, and the costs.chanroblesvirtualawlibrary The information against accused-appellant alleged-chanroblesvirtualawlibrary "That on or about the 11th day of April 1994, in Quezon City, Philippines, the above-named accused, conspiring, confederating and mutually helping with several others whose true names and real identities have not as yet been ascertained, did then and there, willfully unlawfully and feloniously entered the compound of Rebecca Saycon located at No. 99 Tandang Sora Avenue, this City, with intent to kill and with the use of bladed weapons stabbed FELIPE CLIMACO, a security guard on his body several times and JOEY RODRIGUEZ, a house boy thereat on his chest, respectively, thus inflicting upon FELIPE CLIMACO serious and mortal wounds which were the direct and immediate cause of his death and injuries to JOEY RODRIGUEZ and thereafter said accused with intent to gain, by means of such violence and intimidation against persons, did then and there, wilfully, and unlawfully and feloniously take, rob and carry away the service firearm of FELIPE CLIMACO, 1.38 caliber revolver with Serial No. 31897 with six (6) rounds of ammunitions of still undetermined value, belonging to Triad Security & Allied Services, Incorporated, to the damage and prejudice of the heirs of Felipe Climaco, Joey Rodriguez of the injuries sustained [sic] and Triad Security & Allied Services, Incorporated.chanroblesvirtualawlibrary "Contrary to law."chanroblesvirtualawlibrary The crime took place in the first hour of April 11, 1994, at the compound of Pastor and Rebecca GaskellSaycon at No. 99 Tandang Sora Avenue, Quezon City. At that time, only Rebecca, her two sons and their "yaya" (nursemaid), security guard Felipe "Philip" Climaco and houseboy Joey Rodriguez were in the house.[3]chanroblesvirtualawlibrary According to Joey's testimony,[4] he was sleeping in the servant's quarters when he was awakened around midnight by the footsteps of Climaco. He asked Climaco what the matter was ("Ano po yon?") but the latter did not answer as he proceeded to the closet to get a gun. Joey saw Climaco running towards the swimming pool. After a while, he heard a gunshot. He got up and followed Climaco to the swimming pool where Joey heard shouts. Intending to ask help from neighbors, Joey opened the gate when he was suddenly attacked by a person whom he identified as accused-appellant.[5] He fought back but he was stabbed. He ran towards the house. Along the way he met another person with a gun in one hand and a knife in the other, and inside the house he saw Climaco lying on the floor, wounded. Climaco was in pain and asked to be taken to the hospital. Climaco said his gun[6] had been taken by a person whom he described was "fatter," "taller," and heavier than Joey and who wore his hair long. Thereafter, several persons, arrived, including Danilo Saycon, Arnold Agustin, and Joey's twin brother Jonathan Rodriguez, and the police. Found dead in the garden by the police was one of the intruders, who was later identified as Diego Aruta.[7]chanroblesvirtualawlibrary Climaco was taken to the Lanting General Hospital but he was dead on arrival.[8] The autopsy report[9] showed that he suffered several wounds in various parts of the body, to wit:chanroblesvirtualawlibrary

"Fairly developed, fairly nourished male cadaver, in rigor mortis with postmortem lividity over the dependent portions of the body. Conjunctivae, lips and nailbeds were pale.chanroblesvirtualawlibrary "EXTERNAL INJURIES: TRUNK AND UPPER EXTREMITIES:chanroblesvirtualawlibrary "(1) Stab wound, anterior left upper thorax, 130 cms. from heel, 11 cms. from anterior midline, measuring 7 x 2.5 x 6 cms. depth, directed upwards, slightly backwards, towards midline, thru the muscle tissue.chanroblesvirtualawlibrary "(2) Stab wound, anterior right thorax, 121 cms. from heel, 9.5 cms. from anterior midline, measuring 5 x 1.5 x 13 cms. depth, directed slightly upwards, backwards, slightly towards lateral, fracturing the 5th right thoracic rib along the midclavicular line, piercing the middle and lower lobes of the right lung.chanroblesvirtualawlibrary "(3) Stab wound, anterior right lumbar region, 107 cms. from the heel, 11 cms. from anterior midline, measuring 4 x 2 x 12 cms. depth, directed upwards, backwards, towards rnidline, fracturing the 9th right thoracic rib along the midclavicular line, piercing the loops and mesenteries of small intestines and portal vein.chanroblesvirtualawlibrary "(4) Stab wound, right scapular region, 126 cms. from the heel, 12 cms. from posterior midline, measuring 5 x 1.5 x 12 cms. depth, directed upwards, slightly forwards, towards midline, thru the muscle tissue.chanroblesvirtualawlibrary "(5) Incised wound, anterior proximal 3rd left arm, measuring 8 x 2 cms., 4 cms. from anterior midline.chanroblesvirtualawlibrary "(6) Linear abrasion, anterior left lumbar region, measuring 6 x 0.1 cm., 11 cms. from anterior midline.chanroblesvirtualawlibrary "(7) Abrasion, anterior left lumbar region, measuring 0.6 x 0.3 cm., 15 cms. anterior midline.chanroblesvirtualawlibrary "(8) Linear abrasion, anterior left lumbar region, measuring 7 x 0.1 cm., 4 cms. from anterior midline.chanroblesvirtualawlibrary "(9) Linear abrasion, anterior proximal 3rd right forearm, measuring 5 x 0.2 cm., 4 cms. from anterior midline.chanroblesvirtualawlibrary "(10) Stabwound, posterior middle 3rd right arm, measuring 2.8 x 1.2 cms. x 10 cms. depth, directed upwards, forwards, towards lateral, thru the muscle tissue.chanroblesvirtualawlibrary "(11) Stab wound, posterior proximal 3rd right forearm, 4 cms. from posterior midline, measuring 2.5 x 0.8 x 5 cms. depth, directed slightly downwards, towards lateral.chanroblesvirtualawlibrary "(12) Stab wound, posterior proximal 3rd right forearm, 4 cms. from posterior midline, measuring 3.5 x 1 x 5 cms. depth, directed upwards, backwards, towards midline, thru the muscle tissue.chanroblesvirtualawlibrary "(13) Incised wound, dorsum of the right hand, measuring 1.7 x 0.3 cms., 6 cms. from posterior midline.chanroblesvirtualawlibrary "INTERNAL FINDINGS:chanroblesvirtualawlibrary "(1) Recovered from the right thorax and abdominal cavity about 1,000 cc and 500 cc of blood and blood clots, respectively.chanroblesvirtualawlibrary "(2) Recovered from the stomach 1 glass of partially digested food particles consisting mostly of rice.chanroblesvirtualawlibrary "CONCLUSION:chanroblesvirtualawlibrary "Cause of death is stab wounds, body."chanroblesvirtualawlibrary On the other hand, Joey was taken to the Quezon City General Hospital. The medico-legal certificate of the attending physician stated that Joey suffered a "stab wound, 4 cm., 5th ICS, Ant. axillary line, chest (R)" which would require medical attendance for seven days under normal condition.[10] The wound would not have caused his death even if Joey had not been given immediate medical attendance as it did not penetrate his lungs.[11]chanroblesvirtualawlibrary Accused-appellant, a "taho" vendor, was arrested by NBI agents on April 17, 1994 in San Miguel, Bulacan, in the house of his aunt, Priscilla Dagandang Mabuhay. He was taken to the NBI Headquarters on Taft Avenue in Manila where he gave an extrajudicial confession in the presence of his wife Noemi and of an assigned counsel, Atty. Erlando A. Abrenica.[12]chanroblesvirtualawlibrary

In his confession, given on April 19, 1994, accused-appellant said that the plan to rob the Saycons had been conceived by Diego Aruta and Darius Caenghog and that he had been told of it on the night of Saturday, April 9, 1994. According to accused-appellant, the following night, April 10, 1994, at around 7:00, Jhonny "Almar" Alcober, Oscar "Lucas" Clariza and Bengie "Benny" Demson arrived in his house. (Accused-appellant and his family lived in a house which was just outside the Saycon compound in Tandang Sora, Quezon City.) Diego and Darius arrived at about 10:00 in the evening. The accusedappellant and the group drank two bottles of gin. All the while, they were looking over the wall which separated accused-appellant's house from the Saycon compound ("Sinisilip nila sa pader ang bahay ni Mr. Saycon"). At around midnight, the group went into action. Diego climbed over the wall, followed by Darius and accused-appellant and then by the three, Almar, Lucas and Benny. But they were noticed by the security guard who shot Diego Aruta. Diego charged ("sinugod"), embraced the security guard and then stabbed him. Diego was Joined by Darius who also stabbed the guard at the front and by accusedappellant who stabbed the guard at the back. The security guard staggered into the house. Accusedappellant then noticed a little man coming from a small room near the gate. He followed the man and stabbed him. The man, though stricken, was able to run inside the house. Accused-appellant then escaped by going over the wall, while Darius, who took the security guard's gun, escaped through the gate. Greatly weakened by his wound, Diego was left behind, eventually to die from his gunshot wound.chanroblesvirtualawlibrary After the incident, the group dispersed. Accused-appellant stayed in his house until 4:00 in the morning and then left for Pasay City. On April 13, 1994 he proceeded to Barrio Tibagan, San Miguel, Bulacan, where NBI agents eventually found him.chanroblesvirtualawlibrary Accused-appellant claimed that he signed the confession (Exhibits "B-1" to "B-3") because he had been "threatened" with harm if he did not[13] and that Atty. Abrenica, who assisted him in the execution of the confession, was not his counsel of choice but had merely been provided him by NBI Special Investigator Ramon Yap.[14] Accused-appellant claimed that he could not have committed the crime because at that time he was in San Miguel, Bulacan, having gone there on April 10, 1994 to visit an aunt. [15]chanroblesvirtualawlibrary The trial court dismissed accused-appellant's alibi. It held that even without the extrajudicial confession, the prosecution's other evidence established beyond reasonable doubt accused-appellants guilt. Hence this appeal based on the following assignment of errors: Ichanroblesvirtualawlibrary THE COURT A QUO ERRED IN NOT DECLARING AS INADMISSIBLE IN EVIDENCE THE EXTRA-JUDICIAL CONFESSION EXECUTED BY ACCUSED-APPELLANT. IIchanroblesvirtualawlibrary THE COURT A QUO ERRED IN GIVING FULL FAITH AND CREDENCE TO THE UNRELIABLE, IMPLAUSIBLE AND UNPERSUASIVE TESTIMONY OF THE PROSECUTION WITNESSES AND IN DISREGARDING THE EVIDENCE PROFERRED BY THE DEFENSE. IIIchanroblesvirtualawlibrary THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED AND IN IMPOSING THE SUPREME PENALTY OF DEATH DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT.chanroblesvirtualawlibrary 1. Art. III (Bill of Rights) of the Constitution provides in part:chanroblesvirtualawlibrary

"Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.chanroblesvirtualawlibrary "(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.chanroblesvirtualawlibrary "(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. xxx xxx xxxchanroblesvirtualawlibrary Accused-appellant signed a document, marked Exhibit "B", which consists of two parts. The first part, marked Exhibit "B-4," shows that accused-appellant was informed that he had a right to remain silent and not to give any statement; that any statement he gave could be used against him in court; that he had a right to retain counsel of his choice and that if he could not afford to hire the services of counsel he would be given a competent and independent one. After being thus informed, he said he was nonetheless willing to give a statement and tell the truth. Thus, written in Filipino, the first part of the document reads:chanroblesvirtualawlibrary "0.1 TANONG: Bago and lahat, nais kong ipaalam sa iyo Ginoong JIMMY ALBERCA Y MABUHAY na ikaw ay aming iniimbistigahan sa kasong Robbery with Homicide na nangyari noong madaling araw ng Abril 11, 1994 sa tahanan ni MR. PASTOR SAYCON sa #99 Tandang Sora Avenue, Quezon City, naiintindihan mo ba ito?chanroblesvirtualawlibrary SAGOT : Opo, sir.chanroblesvirtualawlibrary "02. T: Nais ko rin na ipaalam sa iyo ang iyong mga karapatan sa ilalim ng ating saligang batas, na ikaw ay may karapatan na manahimik at huwag magbigay ng anumang pahayag sa pagsisiyasat na ito at anumang pahayag na iyong sasabihin ay maaaring gamitin laban sa iyo sa harap ng ating husgado, nauunawaan mo ba ito?chanroblesvirtualawlibrary S: Opo, sir. Nauunawaan ko po at nais ko pong magbigay ng aking salaysay.chanroblesvirtualawlibrary 0 3. T: Ibig ko rin ipaalam sa iyo na ikaw ay may karapatang magkaroon o kumuha ng iyong sariling abogado na pili mo at kung ikaw naman ay wala at hindi mo kayang magbayad ng isang abogado upang tumulong sa pagsisiyasat na ito, ikaw ay bibigyan namin ng isang abogado na may sapat na kakayahan para pangalagaan ang iyong karapatan, ito ba ay naiintindihan mo?chanroblesvirtualawlibrary S: Opo, sir. Naiintindihan ko. Naririto po ngayon si Atty. ERLANDO ABRENICA at ang aking asawa na si NOEMI ALBERCA na siyang aalalay sa akin sa pagbibigay ko ng aking salaysay na ito.chanroblesvirtualawlibrary "04. T: Pagkatapos mong malaman ang iyong mga karapatan sa ilalim ng ating Saligang Batas, at matapos na ikaw ay paliwanagan ng iyong abogado na si Atty. ERLANDO A. ABRENICA kaharap ang iyong asawa na si NOEMI ALBERCA Y JATULAN, nais mo pa rin bang magbigay ng iyong pahayag sa pagsisiyasat na ito at magbigay o magsabi ng katotohanan at pawang katotohanan lamang? chanroblesvirtualawlibrary S: Opo, sir. Pagkatapos kong marinig at maintindihan ang aking mga karapatan sa ilalim ng ating Saligang Batas, ako po ay kusang loob na magbibigay ng aking salaysay at magsasabi ng katotohanan at pawang katotohanan lamang sa pagsisiyasat na ito.chanroblesvirtualawlibrary "05. T: Kung gayon, ikaw ba ay nakahanda na lumagda sa kasulatang pagpapaubaya sa mga karapatang mong ito?chanroblesvirtualawlibrary S: Opo, sir.chanroblesvirtualawlibrary "PAGPAPAUBAYAchanroblesvirtualawlibrary "Ako ay pinagpayuhan ng aking mga karapatan na manahimik at magkaroon ng sariling abogado. Lubos ko itong naiintindihan at nais kong ipaubaya ang mga karapatan kong ito kaharap ang aking abogado na si Atty. ERLANDO ABRENICA at ang aking asawa na si NOEMI J. ALBERCA. Nais kong magbigay ng aking kusang loob na salaysay at alam ko rin na anumang aking sasabihin sa pagsisiyasat na ito ay maaaring gamitin laban o pabor sa akin.chanroblesvirtualawlibrary

"Nauunawaan ko ang aking mga karapatan at nakahanda akong sumagot sa anumang mga katanungan. Hindi ako tinakot, pinilit o pinangakuan ng anumang bagay o may ginawa laban sa akin na makakagambala sa aking malayang pagpapaubaya.chanroblesvirtualawlibrary "(SGD) JIMMY ALBERCA Y MABUHAYchanroblesvirtualawlibrary "Nilagdaan sa harap ni:chanroblesvirtualawlibrary "(SGD) NOEMI ALBERCA Y JATULANchanroblesvirtualawlibrary "CERTIFICATIONchanroblesvirtualawlibrary "THIS IS TO CERTIFY that Affiant JIMMY ALBERCA Y MABUHAY voluntarily waived all his right under the law after the same were satisfactory explained to him including whatever consequences his statements may do.chanroblesvirtualawlibrary (SGD) Atty. ERLANDO A. ABRENICAchanroblesvirtualawlibrary #5 Goldhill Tower, Annapolis St.,chanroblesvirtualawlibrary Greenhills, San Juan, Metro Manila"chanroblesvirtualawlibrary Accused-appellant claims that, contrary to what is recited in the document, the rights were not read to him and that Atty. Erlando A. Abrenica, who assisted him in waiving the constitutional rights, was not his counsel of choice. But his part of Exhibit "B" was signed and thumbmarked by accused-appellant, apart from the second part, which is his confession. He did so in the presence of his counsel, Atty. Erlando A. Abrenica, and of his wife Noemi Jatulan Alberca.chanroblesvirtualawlibrary Accused-appellant makes much of the fact that Atty. Erlando A. Abrenica was not presented by the prosecution. He is joined in this regard by a dissenting member of the Court who contends that Atty. Abrenica should have been presented in order to testify on the extent of services he had rendered to accused-appellant. But beyond seeing to it that the suspect in custodial investigations had been informed of his constitutional rights and that he understood these rights before he waived them-and thus insure that the waiver was knowing, voluntary and intelligent - the assigned counsel does hot have anything more to do.chanroblesvirtualawlibrary In this case accused-appellant does not claim he did not understand what the document states. What he claims is that the constitutional rights stated in the document were not read to him because he was merely forced to sign that document. This is improbable, given the fact that as already stated, this document was signed not only by him but also by his wife. Additionally, accused-appellant affirmed the document before the Assistant City Prosecutor.chanroblesvirtualawlibrary In People v. Llenaresas,[16] it was also alleged by the defense that accused-appellant's extrajudicial confession should have been excluded from evidence because the counsel, who assisted him in executing his confession, did not testify in court. Rejecting this contention, we held:chanroblesvirtualawlibrary "It is true that the prosecution did not present Atty. Meliton Angeles as a witness to confirm his presence during the custodial investigation of Jabil and Llenaresas. Such failure is not, however, fatal to the case of the Prosecution since the testimonies of the police officers and of Prosecutor Pedro S. Nantes, in conjunction with the statements found in the extrajudicial confession itself, were quite adequate to sustain the conclusion reached by the trial court."chanroblesvirtualawlibrary Indeed, what is noteworthy is not the prosecution's failure to present Atty. Abrenica but accusedappellant's failure to call on his wife to corroborate his allegation of coercion, After all, accused-appellant does not claim that she, too, was made to sign under duress.chanroblesvirtualawlibrary Another member of the Court also dissents, arguing that in any event it does not appear from the document signed by accused-appellant that he was informed that it was his right to have a competent and independent counsel of his own, that he had been asked whether he had one, and that he had been given time to look for one.chanroblesvirtualawlibrary

Question No. 3 (quoted above) shows that accused-appellant was told that it was his right to have counsel chosen by him and that if he could not afford to hire one, he would be given a competent counsel in order to protect his rights. ("[I]kaw ay may karapatang magkaroon o kumuha ng iyong sariling abogado na pili mo at kung ikaw naman ay wala at hindi mo kayang magbayad ng isang abogado upang tumulong sa pagsisiyasat na ito, ikaw ay bibigyan namin ng isang abogado na may sapat na kakayahan para pangalagaan ang iyong karapatan.")chanroblesvirtualawlibrary It was unnecessary to tell accused-appellant that he had a right to have a counsel of his choice who was competent and independent since he was told he could choose his own counsel. What was necessary was to assure him that if he could not afford to hire the services of counsel he would be provided by the investigator with a lawyer who was competent and independent, which was what was done in this case. Nor was it necessary to ask him whether he had counsel or give him an opportunity to look for counsel since he had waived the right to counsel and pointed to Atty. Abrenica as the counsel he wanted to assist him in making the waiver.chanroblesvirtualawlibrary There is therefore no basis for the plea of accused-appellant that his extrajudicial confession should have been excluded from the evidence because it was obtained in violation of his rights under Section 12 of Art. III.chanroblesvirtualawlibrary Accused-appellant also claims that he signed the extrajudicial confession because he had been "threatened" with harm if he did not. He made this claim twice in his testimony in the trial court, once during his direct examination[17] and again in his cross-examination.[18] If true, this would render his confession inadmissible under paragraphs (2) and (3) of Section 12. However, apart from saying that he was "threatened," he did not elaborate as would naturally be his wont had he really been coerced to sign his confession. He did not say he was beaten up or subjected to third degree methods. He did not even say what he was told would be done to him if he refused to sign the confession. Neither did he say who allegedly made the threat.chanroblesvirtualawlibrary On the contrary, the following circumstances belie his claim that he had been coerced into signing the confession:chanroblesvirtualawlibrary (a) Accused-appellant signed the confession (Exhibits "B-1" to "B-3") in the presence of his wife Noemi Jatulan Alberca and counsel, Atty. Erlando A. Abrenica, who signed the confession as witnesses thereto. The confession comprises the second part of the document marked Exhibit "B". Like the first part, which is the waiver of constitutional rights, the second part was also signed by him, with his wife by his side. The presence of Noemi could only have worked to prevent accused-appellant's will from being overborne by pressure, let alone intimidation. However, Noemi was never presented to corroborate accusedappellant's claim that he had been threatened into signing the confession.chanroblesvirtualawlibrary (b) As already noted, before answering the questions of the investigator, accused-appellant was informed in Filipino of his constitutional rights to remain silent and to have competent and independent counsel of his choice and warned that any statement he gave could be used against him. Nonetheless he willingly gave a statement in order, according to him, to tell the truth.chanroblesvirtualawlibrary (c) The NBI investigator Ramon Yap testified on the due execution of the extrajudicial confession and on the fact that accused-appellant was informed of his constitutional rights but he waived his rights and decided to proceed with the investigation, which lasted morning and afternoon of April 19, 1994.[19] He denied that the confession had been prepared beforehand and that accused-appellant was simply made to sign it.chanroblesvirtualawlibrary (d) On April 22, 1994, accused-appellant was taken to the Assistant City Prosecutor of Quezon City, before whom accused-appellant affirmed his confession. Although accused-appellant claims that he told the prosecutor that the content of the extrajudicial confession was not true, he does not claim that he

complained of any threat, intimidation or force used against him to make him sign the confession and waiver of rights.[20]chanroblesvirtualawlibrary Indeed to disregard the foregoing circumstances and give credence instead to the accused-appellant's claim that he was forced to sign his confession would be to suggest that accused-appellant's wife, Noemi, the assigned counsel, Atty. Abrenica, the investigator Ramon Yap and the Assistant City Prosecutor conspired to railroad him to conviction.chanroblesvirtualawlibrary The confession of accused-appellant in the case at bar is replete with details, which makes it improbable that it was not voluntarily given. This is evident in the following portion of the confession:chanroblesvirtualawlibrary "09. T: Kung gayon, maaari mo bang sabihin sa akin sa pagsisiyasat na ito ang iyong mga nalalaman na may tungkol sa nangyari sa bahay ni Mr. PASTOR SAYCON doon sa #99 Tandang Sora Avenue, Quezon City, noong ika-11 ng Abril 1994?chanroblesvirtualawlibrary S: Ang nasabi pong bahay ay aming pinasok, at nilooban at ninakawan, noong mga bandang alas dose ng madaling araw ng Abril 11, 1994, araw po ng Lunes.chanroblesvirtualawlibrary "10. T: Maaari mo bang isalaysay ng maigi ang mga pangyayari?chanroblesvirtualawlibrary S: Noon pong araw ng Sabado, petsa 9, 1994, bandana alas dose ng tanghali ay nagplano sina DIEGO ARUTA at DARIUS CAENGHOG sa aking tinitirhan sa 101 Tandang Sora Avenue, Quezon City na papasukin at pagnanakawan ang bahay ni Mr. SAYCON na nasa kabila lamang ng pader ng aking tirahan. Sinabi nila ito sa akin bandang alas 7:00 ng gabi noon ding po Sabadong iyon. Kinabukasan araw ng linggo, petsa Abril 10, 1994, bandang alas 7: 00 ng gabi ay dumating sina JHONNY ALCOBER @ "Almar," OSCAR CLARIZA @ "Lucas," at BENGIE DEMSON @ "Benny." Sila po ay nagtuloy sa aking tinitirhan at doon pa po sila naghapunan. Bandang alas 10:00 ng gabi ay dumating na rin sina DIEGO at DARIUS sa aking bahay. Kami po tatlo nila DIEGO at DARIUS ay uminom ng dalawang boteng Ginebra habang sina ALMAR, LUCAS at BENNY ay nagpapahinga sa itaas ng bahay ko. Habang kami ay nagiinuman ay panay ang labas nila DIEGO at DARIUS at sinisilip nila sa pader ang bahay ni Mr. Saycon. Ang plano ni DIEGO ay pasukin namin ang bahay ni Mr. Saycon ng bandang ala-una petsa Abril 11, 1994 pero nainip po sina DARIUS at ALMAR at sinabi nila na pasukin namin ang nasabing bahay ng bandang alas dose."chanroblesvirtualawlibrary Accused-appellant claims that this portion of his confession was supplied by Ramon Yap, the NBI investigator. Yap would not know who the members of the group were if accused-appellant did not give their names. Accused-appellant does not deny that he knows these persons. In fact it would seem that Alcober, Clariza and Demson were accused-appellant's townmates because it was to Barogo, Leyte, where according to the confession, the three fled after the crime. On the other hand, Caenghog was from Carigara, also in Leyte, according to the confession.chanroblesvirtualawlibrary 2. Accused-appellant's defense is alibi. He claims that at the time of the commission of the crime on April 11, 1994 he was in San Miguel, Bulacan. He claims that he went to San Miguel, Bulacan in the morning of April 10 and stayed there until he was picked up by NBI agents on April 17.[21] Accused-appellant would have called on his relatives Priscilla Dagandang Mabuhay and Antonio Dagandang, as well as Isa Joson, a neighbor in Bulacan, to testify, except that the prosecution agreed that if presented their testimonies would corroborate accused-appellant's alibi.[22]chanroblesvirtualawlibrary Now the rule is settled that the defense of alibi cannot prevail over the positive identification of the accused.[23] In this case, positive identification of accused-appellant was made by Joey Rodriguez. Joey was a houseboy of the Saycons. He engaged accused-appellant in a fight and was stabbed by the latter.[24] He did not know accused-appellant personally but neither was the latter a "total stranger" to him. For the fact was that accused-appellant's house was just outside the Saycon compound.[25] The premises were

sufficiently illuminated by light coming from the terrace of the house and from the MERALCO street light which made identification of the accused-appellant possible.[26] Joey could not, therefore, have been mistaken as to the identity of accused-appellant.chanroblesvirtualawlibrary Furthermore, the claim that accused-appellant was in San Miguel, Bulacan at the time of the crime was contradicted by prosecution witness Joselito Aborque.[27] Aborque was also a "taho" vendor. He was a neighbor of accused-appellant. Aborque testified that he saw accused-appellant in the latter's house with three male visitors at around 7:00 p.m. of April 10, 1994[28] as he (Aborque) and his wife went out for a stroll. The defense tried to discredit him by imputing to him a desire to eliminate a competitor since they were both "taho" vendors and by pointing out that Aborque had given his statement to the NBI five days after the crime.[29] Aborque denied he and accused-appellant were business rivals.[30] Even if they were, this would not be enough for him to testify falsely against accused-appellant. As for the contention that it was only on April 16, 1994 that he gave his statement to the NBI, it is sufficient to say that the reluctance of some people to be involved in criminal trials is a matter of judicial notice. Failure to volunteer what one knows to law enforcement officials does not necessarily impair a witness' credibility.[31] In any event the trial court, which had the opportunity to observe this witness' demeanor, found his testimony to be truthful and we find no reason to disregard its finding on this matter.chanroblesvirtualawlibrary For the defense of alibi to prosper, accused-appellant must establish by clear and convincing evidence not only that he was not present at the scene of the crime but also that it was physically impossible for him to have been present there at the time of its commission.[32] This accused-appellant failed to do. According to him, the distance between San Miguel, Bulacan and Tandang Sora, Quezon City, where the Saycon compound is, can be negotiated in two and a half hours, and even an hour less if traffic is not heavy.[33] Hence, even assuming that accused-appellant really went to Bulacan in the morning of April 10, 1994, he could have easily returned to Tandang Sora later the same day.chanroblesvirtualawlibrary It is true that none of the witnesses for the prosecution testified having seen accused-appellant stab Felipe Climaco, a point on which the defense harps.[34] There was conspiracy in this case, however, as shown by the concerted manner in which accused-appellant and his companions entered the Saycon compound and later withdrew from it and the way they attacked the security guard and the houseboy. Regardless of the part of accused-appellant in the stabbing of the guard and the wounding of the houseboy, he is liable because of the rule in conspiracy that the act of one is the act of all.[35]chanroblesvirtualawlibrary Moreover, what the prosecution lacked by way of an eyewitness was made up by the circumstantial evidence in the record of this case.[36] As provided in Sec. 4 of Rule 133 of the Revised Rules on Evidence, circumstantial evidence is sufficient for conviction if (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In this case it is established that (1) accused-appellant was present at the scene of the crime; (2) he had a bladed weapon in his possession and displayed a readiness to use the same when he stabbed Joey Rodriguez; (3) Climaco died due to multiple stab wounds; (4) bloodstains were found on the wall separating the Saycon compound from the house of accused-appellant;[37] and (5) accused-appellant fled to Bulacan thereafter. His flight is evidence of his guilt.[38] It is logical to infer from all these circumstances that accused-appellant was among those who inflicted fatal wounds on Climaco. As noted in People v. Abitona,[39] facts or circumstances which are not only consistent with the guilt of the accused but also inconsistent with his innocence, constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.chanroblesvirtualawlibrary 3. Upon the facts thus established the Court is convinced that accused-appellant is guilty of robbery with homicide. While accused-appellant and his companions failed to rob the Saycons, the fact is that they took the gun of the security guard for the purpose of gain. Since the group in addition killed the guard, the crime committed is the complex one of robbery with homicide. It is not necessary that the person robbed be the same person whom the malefactors originally intended to rob. In People v. Ga,[40] the accused planned to rob a house at Forbes Park in Makati. They killed the house owner, Don Julio Gonzaga, and his wife and houseboy and seriously wounded his daughter and, as help was coming, they fled without being

able to take anything from the house. Instead they took a wristwatch and transistor radio belonging to a houseboy. It was held that the crime was robbery with homicide.chanroblesvirtualawlibrary In People v. Balanag,[41] the accused entered the house of Dr. Guillermo Lopez, Sr. and then killed him for having filed a case against one of the accused. They fled after taking with them a shoulder bag of Dr. Lopez's daughter, Genoveva. This was also held to be robbery with homicide.chanroblesvirtualawlibrary Nor is it necessary to show that the sole purpose was robbery and by reason thereof homicide was committed. Article 294 of the Revised Penal Code provides that there is robbery with homicide not only when "by reason of the robbery" homicide is committed but also when "on the occasion" thereof homicide is committed. If robbery and homicide are committed on the same occasion, the special complex crime is deemed committed.chanroblesvirtualawlibrary Thus, in People v. Pamintuan,[42] the accused, who were detention prisoners, escaped from jail, killing jail guards and taking firearms from the armory. They were found guilty of robbery with homicide.chanroblesvirtualawlibrary In People v. Tolentino,[43] three individuals were creating trouble in a store. When a policeman across the street was summoned for help by the storeowner, the three turned to him and ganged up on him. The accused took the service revolver of the policeman and shot him and then fled with the gun. It was contended that the taking of the gun was a mere afterthought and that to prove robbery with homicide the prosecution must show that the robbery preceded the killing. In rejecting this contention, we held:chanroblesvirtualawlibrary "The contentions of the accused-appellant are untenable. The testimony of Lourdes Santos clearly shows that there was an intent to rob the victim of his gun. The gun was first taken from the victim before he was killed. The gun was then taken away and hidden. Nevertheless, whether or not the taking was before or after the death of the victim is of no moment in this case. It is immaterial that homicide preceded the robbery where robbery was the real motive of the culprits. (People v. Gapasin 145 SCRA 178). In the case at bar, the accused intended both to take the gun and kill the victim."chanroblesvirtualawlibrary In another case, People v. Hasiron,[44] three individuals, one of whom was the accused, went to the house of the victim and, when told that he was asleep, left with the advice that they would return. An hour later they returned. They talked with the victim outside his house and after awhile one of the trio shot the victim, another one went inside his house and took his M-16 Armalite, while the accused took the victim's service pistol which was tucked in his waist. It was contended that robbery was not the primary motive because if this had been their intention, they would have robbed the victim of his guns the first time they came. Indeed, the trial court said that the groups' purpose in looking for the victim was to "confront [him] about something." But the contention was dismissed. Finding the accused guilty of robbery with homicide, this Court said:chanroblesvirtualawlibrary "[T]here is no reasonable doubt that a principal (though not necessarily the only) objective of the malefactors was to take away the firearms in the possession of the deceased policeman. They evidently knew that Abdulmonim had a firearm in his house, apart from the handgun tucked in his waist; Jerry Hayudini promptly and unerringly went inside the Aspi house and secured the M-16 armalite, while appellant pulled out the handgun from Abdulmonim's waist."chanroblesvirtualawlibrary 4. Now as to the penalty. Republic Act No. 7659, which took effect December 31, 1993, amended Article 294 of the Revised Penal Code as follows:chanroblesvirtualawlibrary "Sec. 9. Article 294 of the same Code is hereby amended to read as follows:chanroblesvirtualawlibrary

'Article 294. Robbery with violence against or intimidation of persons - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:chanroblesvirtualawlibrary '1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson."'chanroblesvirtualawlibrary It provides in Section 23:chanroblesvirtualawlibrary "SEC. 23. Article 62 of the same Code, as amended, is hereby amended to read as follows:chanroblesvirtualawlibrary 'Art. 62. Effects of the attendance of mitigating or aggravating circumstances and of habitual delinquency.- Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules:chanroblesvirtualawlibrary '1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty.chanroblesvirtualawlibrary '1(a). When the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances.chanroblesvirtualawlibrary 'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group.chanroblesvirtualawlibrary 'An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime. x x x"'chanroblesvirtualawlibrary On the basis of these provisions, the trial court imposed on accused-appellant the death penalty.chanroblesvirtualawlibrary We hold that the trial court erred in finding that accused-appellant and his companions constituted a syndicated or an organized crime group within the meaning of Article 62, as amended. While it is true they confederated and mutually helped one another for the purpose of gain, there is no proof that they were a group organized for the general purpose of committing crimes for gain, which is the essence of a syndicated or organized crime group.chanroblesvirtualawlibrary The following exchange between Senator Tolentino and Senator Guingona during the deliberation on what is now Art. 62, paragraph 1(a) of the Revised Penal Code is enlightening:[45]chanroblesvirtualawlibrary "Senator Guingona. May we know the difference between the offense committed by a syndicated crime group and one which is committed by conspiracy of two or more persons.chanroblesvirtualawlibrary "Senator Tolentino. Mr. President, the syndicated crime is something like an offense by a group actually for gain purposes. In case of conspiracy, that is not necessarily so.chanroblesvirtualawlibrary

"Senator Guingona. So that, that is the only difference.chanroblesvirtualawlibrary "Senator Tolentino. The difference, of course, is that in the case of syndicated crime, the group is an organized group, while such organization is not required in the case of mere conspiracy. Two or more persons just agree to commit a crime, we have a conspiracy, while in the case of a syndicate there is a group that is actually organized for crime purposes.chanroblesvirtualawlibrary "Senator Guingona. How about the difference between the syndicated group and a band in case of specific crimes against persons and property?chanroblesvirtualawlibrary "Senator Tolentino. Well, in the case of a band that means all of them participate in the commission of the offense. All the members, I think, four or more participate in the commission of the offense. But in the case of a syndicated crime, maybe one member of the group alone commits a crime, while in the organized group one or two members may commit the crime. "xxx xxx xxxchanroblesvirtualawlibrary "Senator Guingona. Yes, but as can be gleaned from the answer of the distinguished Sponsor, only those who actually commit the offense would be the one liable for this aggravating circumstance. Those who know but do not participate are not principals, and even if they are members of the syndicate, they will not be held liable.chanroblesvirtualawlibrary "My question is: Would the same situation not arise if we say that conspiracy would qualify the offense instead of having a syndicated crime here where the member of the syndicated group, who does not participate, is not liable?chanroblesvirtualawlibrary "Senator Tolentino. Mr. President, I think the concept of syndicate here is different from conspiracy. Two or more persons may conspire to commit robbery. All right. That is a particular offense. But in the case of a syndicate, the concept here is a group that is organized for commission of crimes, not only a particular crime, but of crimes. So, there is a big difference between the conspiracy and the syndicate.chanroblesvirtualawlibrary "Now, if the idea of the distinguished President Pro Tempore is to make the mere fact of conspiracy an aggravating circumstance, well, that is another matter. We can have that as a proposal later on. But mere conspiracy does not constitute a syndicate as conceived in this provision that we are presenting.chanroblesvirtualawlibrary "Senator Guingona. So that if two or more persons get together and decide to commit one crime only, that is not a syndicate.chanroblesvirtualawlibrary "Senator Tolentino. That is not a syndicate. That is a conspiracy. "xxx xxx xxxchanroblesvirtualawlibrary "Senator Guingona. That is why under the circumstances, if there is a conspiracy to sell prohibited drugs, under the principle of conspiracy, the liability of the seller would be equally applied to the liability of the financier or to the importer.chanroblesvirtualawlibrary "Senator Tolentino. But if they are not syndicate, there is no aggravating circumstance. They are all liable equally, but there is no aggravating circumstance.chanroblesvirtualawlibrary

"Senator Guingona. Precisely. Can we not change or instead of amending the conspiracy concept, apply that and say that conspiracy will now be considered as the qualifying aggravating circumstance? In that way, all will have the same liability, and it is up to the individual person to put up the defense and say: 'I did not know. I was a part of the syndicate, but I was only doing something that I thought was confined to this.'chanroblesvirtualawlibrary "Senator Tolentino. Mr. President, if what the distinguished Gentleman means that instead of 'who belongs to an organized or syndicated crime group, we just have to say 'who is a part of conspiracy, that will not carry the intent of this provision. Because that means, whenever there is an agreement between two or more persons to commit a particular crime at one time, we already increase the penalty. That is not the idea of this. The idea of this proposal is that this group actually engages in the commission of crimes, not just a particular crime.chanroblesvirtualawlibrary "As in the case already mentioned by the distinguished Gentleman, there is a syndicate, but one group commits the crime of selling; another group commits the crime of importing; another group commits the crime of planting drugs. There are different crimes committed by a single group that is organized for that purpose.chanroblesvirtualawlibrary "But when we talk of conspiracy, we mean an agreement between two or more persons to commit a particular crime. I do not think the Gentleman can raise that to a level of making it an aggravating circumstance because there is no reason for it. The reason in the syndicated crime is that it is practically a profession that is being adopted by a group.chanroblesvirtualawlibrary "Senator Guingona. Must there be more than one offense planned?chanroblesvirtualawlibrary "Senator Tolentino. Maybe, several in the future, not in a particular instance.chanroblesvirtualawlibrary "Here is a syndicate that may commit one crime now; another crime tomorrow; another crime two days afterwards. It is really a crime group."chanroblesvirtualawlibrary What emerges from this discussion is the idea of a group of persons, at least two in number, which is organized for the purpose of committing crimes for gain. In the case at bar, while the evidence shows that accused-appellant and his companions planned to rob the Saycons, there is no evidence that they were organized for the purpose of committing crimes for gain. There was a conspiracy to commit robbery but not a syndicated or organized crime group.chanroblesvirtualawlibrary The foregoing is the opinion of nine (9) members of the Court, five (5) of whom believe that the aggravating circumstance of nighttime should have been appreciated by the trial court. To them it is clear that accused-appellant and his companions waited until it was midnight of April 10, 1994 before carrying out their plan, the better to ensure its success. As earlier noted, three of accused-appellant's companions (Alcober, Clariza and Demson) arrived at 7:00 o'clock in the evening of April 10, 1994 in the house of accused-appellant. But the group did not then go into action. At 10:00 o'clock the other two (Aruta and Caenghog) arrived to join the group. Still the group did not strike. They waited until midnight before they did. All the time, the group was looking over the wall, Evidently accused-appellant and his group were waiting until the occupants of the house had retired for the night. Even viewed objectively, it can be said that nighttime greatly facilitated the commission of the crime because with people asleep, the possibility of resistance from the occupants of the house and help from the neighbors was considerably diminished. As held in People v. Alcala:[46]chanroblesvirtualawlibrary "While it does not positively appear that the accused sought the nighttime for the perpetration of the crime, the fact is that they at least took advantage of it, for they approached the house at an early time, and yet they did not commit the crime until late in the night. This is sufficient in order that the aggravating circumstance of nocturnity may be held to exist. (U.S. vs. Billedo, 32 Phil., 574.)"chanroblesvirtualawlibrary

Since there is no mitigating circumstance to offset the aggravating circumstance of nighttime, in the opinion of the five (5) Justices the greater penalty (i.e., death) must be imposed on accused-appellant, in accordance with Article 63, paragraph 2, no. 1 which provides that when only an aggravating circumstance is present in the commission of an offense, the penalty for which is composed of two indivisible penalties, the greater penalty should be imposed.chanroblesvirtualawlibrary Since the votes of the five (5) Justices fall short of the majority of eight (8) votes needed to affirm the sentence of death of the trial court, the penalty of reclusion perpetua should be imposed on accusedappellant in accordance with Article 47 of the Revised Penal Code, as amended by Republic Act No. 7659.chanroblesvirtualawlibrary On the other hand, four (4) of the Justices, while holding that accused-appellant is guilty of robbery with homicide, do not agree that nighttime was sought in this case in order to facilitate the commission of the crime and therefore they vote to impose on accused-appellant the penalty of reclusion perpetua.chanroblesvirtualawlibrary The remaining six (6) other Justices believe that accused-appellant is guilty only of the separate crimes of homicide and physical injuries. Of these six, four (4) believe that nighttime should be appreciated as an aggravating circumstance, while two (2) do not think it should. Two (2) of the six (6) Justices, with whom the other four (4) concurred (so far as the two find the crimes committed to be homicide and physical injuries), expressed different reasons for their dissents. One said:chanroblesvirtualawlibrary [1] "In People vs. Galit (135 SCRA 465 [1985]), it was held that to satisfy the constitutional guarantees accorded a person under custodial investigation, 'there should be several short and clear questions and every right explained in simple words.' The warning given to the accused-appellant in the form of two paragraphs falls short of this requirement. He was not informed by the investigator of his right to a competent and independent counsel of his choice. Neither was he asked whether he has a counsel of his choice, nor was he given an opportunity to look for one."chanroblesvirtualawlibrary [2] "My reading of the PAGPAUBAYA suggests that he waived not just the right to remain silent but also the right to counsel. However, as can be gleaned from his certification, Atty. Abrenica did nothing as a procured lawyer; he remained as a mere stolid witness to an act of a lowly taho vendor, which could seal the latter's destiny with death. [The Constitution] requires of the counsel a meaningful presence consisting of a sincere effort to explain further to the subject the significance, import, and consequences of the waiver."chanroblesvirtualawlibrary [3] "Even assuming that the extrajudicial confession spoke the truth and was not extracted by means of violence or intimidation, the denial of the accused-appellant's right to a competent and independent counsel or the absence of effective legal assistance when he waived his constitutional rights rendered the confession inadmissible pursuant to Section 12(3), Article II of the 1987 Constitution."chanroblesvirtualawlibrary The other said:chanroblesvirtualawlibrary [1] "The NBI ought to have given him reasonable opportunity to get a lawyer of his confidence thru his family or friends before extracting his confession. The police practice of calling any lawyer on-sight to assist a suspect under custodial investigation should be discontinued. x x x For generally, these on-sight lawyers give their services free and understandably lack the enthusiasm to defend the rights of an accused. Atty. Abrenica appears to belong to this variety. x x x The records do not show how well he advised appellant of his rights. Indeed, he did not even appear during the trial to enlighten the court of the extent of his legal services to the appellant. When the crime is heinous and punishable by death, it behooves this Court to be strict in safeguarding the right to counsel of the accused. It can spell the difference between life and death."chanroblesvirtualawlibrary

[2] "Even assuming that the appellant was not denied the right to counsel, x x x he should only be convicted for the separate crimes of homicide and physical injuries. x x x They failed to consummate their conspiracy because of the intervention of security guard Felipe "Philip" Climaco and houseboy Joey Rodriguez. On the occasion of said attempted robbery, accused-appellant and his companions stabbed Climaco and Rodriguez. Climaco died while Rodriguez sustained serious physical injuries. x x xchanroblesvirtualawlibrary "The taking of Climaco's gun cannot be complexed with the stabbing of Climaco and Rodriguez to constitute robbery with homicide. Before they entered the premises, the group had no intention of robbing Climaco of his gun. It was only Darius, one of the companions of accused-appellant, who seized Climaco's gun after they had killed him. His act was merely an afterthought. x x xchanroblesvirtualawlibrary "The facts in People vs. Tolentino and People vs. Hasiron are different from the case at bar. In those cases, the intent to rob the victims is clear and the killing was only incidental to the robbery. x x xchanroblesvirtualawlibrary "The taking [by another malefactor] of Climaco's gun constitutes theft. Be that as it may, accusedappellant cannot be held liable for theft because that is not the object of the conspiracy. The evidence shows that the group only conspired to rob the Saycon residence. The rule is that conspirators are liable only for acts done pursuant to the conspiracy. x x x"chanroblesvirtualawlibrary WHEREFORE, the decision of Branch 104 of the Regional Trial Court of Quezon City, so far as it finds the accused-appellant guilty of robbery with homicide is, AFFIRMED with the modification that the penalty of reclusion perpetua is imposed on him for lack of necessary votes to affirm the death sentence.chanroblesvirtualawlibrary SO ORDERED.chanroblesvirtualawlibrary

FIRST DIVISION [G.R. No. 135034. January 18, 2001] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ADRIANO SEGUIS a.k.a. JUNIOR, ROSALITO ESTEBE a.k.a. DODONG, RODRIGO DOQUILA a.k.a. LOLONG (At Large), ELMER CANICO (At Large), LOLOY GIBERTAS (At Large), BERFEL DELA CRUZ (At Large), and JOHN DOE (At Large), Accused. ADRIANO SEGUIS and ROSALITO ESTEBE, accused-appellants. DECISION PUNO, J.: Juliet A. Magamayo, a nineteen-year-old barrio lass from an obscure town in Surigao del Norte complains that she has been ravished, then robbed by seven men, who, following her accounts, were definitely no Romeos. She claims they did not only forcibly take her gold ring, they stole her innocence as well. She claims they did not only dispossess her of a gold bracelet, they also divested her of her sense of security. She claims they did not only deprive her of her last remaining fifty pesos, they denied her furthermore a future. Juliet pointed to the following men as the ones who committed the outrage against her womanhood: Adriano Seguis a.k.a. Junior, Rosalito Estebe a.k.a. Dodong, Rodrigo Doquila a.k.a. Lolong, Elmer Canico, Loloy Gibertas, Berfel dela Cruz, and a certain John Doe. They were charged with the crime of robbery with multiple rape and were indicted in an Amended Information which reads: That on or about August 19, 1995, in Barangay Togbongon, City of Surigao, Philippines and within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating together and with mutual understanding with one another, with lewd designs and by means of force and intimidations (sic), did then and there willfully, unlawfully and feloniously have carnal knowledge of Juliet A. Magamayo, while the latter was already sleeping, by taking turns in raping her against her will and without her consent and on same occasion, accused with intent to gain and by means of violence and intimidation, took, stole and carried away the following personal belongings of Juliet A. Magamayo, to wit: 1. Gold bracelet ----------------------------- P 500.00 2. Gold ring ----------------------------- 4,000.00 3. Cash money ------------------------------ 50.00 T O T A L P 4,550.00 in the total amount of FOUR THOUSAND FIVE HUNDRED FIFTY (P4,550.00) PESOS, Philippine currency, to the damage and prejudice of said Juliet A. Magamayo in the aforesaid amount of P4,550.00 and such other damages as may be allowed by law. Contrary to law. Surigao City, Philippines, August 21, 1995.[1] Of the seven accused, the record reveals that five of them remain at large. Only the first two were placed under the custody of the authorities: Seguis and Estebe, and they are the appellants in this case. During arraignment, both entered a plea of NOT GUILTY. Trial then proceeded. The prosecutions version of the story is based mainly on the private complainants recollection of what happened that dreadful night. The offended party is one Juliet A. Magamayo, a nineteen-year old unmarried girl residing at San Jose, Mainit, Surigao del Norte. According to her, in the afternoon of August 18, 1995 at about 3 o clock, she went to Barangay Togbongon, Surigao City, a few kilometers away from the city proper. Her purpose was to collect a loan of fifty pesos from Michael Balantucas, a friend of long standing whom she met when she was still staying with her elder sister in Togbongon. She arrived there after approximately one hour of travel. As customary with friends, they exchanged

pleasantries and stories, and basically caught up with old times. A while later, accused Loloy Gibertas and Elmer Canico who were on their way to fetch water passed by the house. Michael introduced them to Juliet. They shook hands and talked a little before the two eventually left. Michael then invited Juliet to stay in their home for the night because darkness was closing in. Michael was living with his younger brother Rolando and younger sister Lilibeth since their parents already died. Juliet agreed as she has slept in the place before. She thought that it was too late and perilous to go back home. Little did Juliet know that, in a cruel twist of fate, danger would visit her in the very refuge where she sought safety. Following a dinner of cooked bananas plus a few more stories, she and the Balantucas siblings prepared to retire. Juliet and Lilibeth slept in the houses only bedroom, which was lighted by a kerosene lamp. Michael was just outside the rooms doorway while Rolando stayed in the sala. At about midnight, Juliet was awakened by the noise brought about by the commotion of five men who entered the house. She got up and saw Rodrigo Doquila pointing a knife at the throat of a crouching Michael. She noticed that Lilibeth was not beside her anymore as it turned out that the young girl went to the kitchen to relieve herself. Afraid, she shouted for help to Michael who understandably could not do anything being himself mentally preoccupied with, in a manner of speaking, saving his own neck. At this juncture, Elmer Canico grabbed the hair of Juliet and commanded her to lie down on the floor. Loloy Gibertas held her right hand even as someone else was holding her left. She struggled and twisted her body, so another man had to restrain her legs. Elmer Canico removed his pants and brief, and knelt in front of her. He stripped Juliet of her pants and underwear before continuing to place himself on top of the woman. He inserted his penis into her vagina then made a push and pull movement. Feeling pain, she fought to free herself. She kicked her legs but Canico did not seem to mind a bit. After satisfying his lust, he stood up and put on his pants. He replaced Lolong Doquila in guarding Michael with a knife. The next time, it was Doquila who introduced his penis into the ladys private part. Perhaps realizing the futility of her struggle, Juliet tried to appeal to their sense of mercy. She begged him to stop, mainly because of the pain. This also proved fruitless. He made the same push and pull movements stopping only afterwards when he was able to satisfy his lust. Doquila was replaced by Loloy Gibertas who had coital intercourse with the hapless victim. Again she resisted and shouted for help. The men around her told her to remain silent if she does not want to get killed. Shortly, Gibertas stood up and informed Berfel dela Cruz that it was his turn. Like the others before him, and like the others soon to follow, he forced himself on Juliet. When he had his fill, the unidentified man also had sexual contact with her. Almost after the five predators finished ravaging their prey, Adriano Seguis and Rosalito Estebe came into the room. Juliet already knew them even before this incident. She recognized the two that night by means of a flashlight which Estebe brought to illuminate the area. Earlier, the small kerosene lamp had been extinguished by the five men. As expected, Estebe laid himself on top of the girl, who fought weakly against her new tormentor. He rammed his penis into her vagina. He got up on his feet only after some minutes of sexual activity. Then Elmer Canico returned to the bedroom and Juliet heard him announce that it was his turn again. For the second time that early morning, he succeeded in copulating with her. The last one to have carnal knowledge of Juliet against her will was Adriano Seguis. The latter inserted his male organ into her private part and performed the same push and pull maneuverings using his buttocks. The victim begged him to stop for she could not bear it anymore. Seguis told her to keep quiet. When Seguis was done, he rose to his feet and went to the kitchen. He came back with a plate of rice which he gave to the sobbing lady. Juliet pretended to eat the rice only so that she would not be raped anymore. She did not utter a word but cried a river of tears over her heartbreaking experience. She requested Seguis to help her up and she sat down in a corner. Rosalito Estebe was seated on a nearby trunk. When Seguis tried to blame her for what took place, she answered that the five men sexually abused her. Michael appeared and Juliet asked him how it happened. Michael replied that he also did not know because they were all asleep when the incident started. Seguis and Estebe warned them not to tell anybody of what transpired otherwise they might all be killed. It was about one oclock in the morning when the two remaining accused left.

Juliet discovered later on that she had been despoiled of her gold ring worth P4,000.00 and her gold bracelet worth P500.00. Furthermore, her cash money amounting to P50.00 was no longer in her pants pocket. She admitted though that she was not aware who among the accused carried away the aforementioned personal belongings while she was being assaulted by them. The prosecution presented two other witnesses who corroborated Juliets testimony. Michael Balantucas confirmed that the seven accused indeed illegally entered their house and took turns in sexually defiling Juliet. The rapes were committed right before his eyes. He observed how one by one each of them was able to impose his own bestial will against the lady. He very much wanted to help his visitor whom he only invited that night. But as much as he wanted to, he could not do anything, since all the while that the rape was going on, somebody was pointing a knife at his throat. He was practically rendered impotent by the threat that something bad might happen to him or his siblings. For her part, Lilibeth Balantucas recounted, among other things, that she woke up at around midnight to answer a call of nature. She went to the kitchen to urinate when five men suddenly entered the bedroom. She identified them to be the accused Elmer Canico, Lolong Doquila, Loloy Gibertas and Berfel dela Cruz. However, she did not know the fifth person. Tagging along were Adriano Seguis and Rosalito Estebe who pulled and dragged her out of the house. She was able to recognize them because of the light coming from an electric bulb located in the kitchen. Outside, Seguis and Estebe ordered her to keep quiet, or else they would kill her. Out of extreme fear, she did not make any sound. After about one hour, they also went inside the room. Lilibeth remained where she was as they told her not to move. Going back to Juliets testimony, it appears that later in the morning of August 19, 1995, someone fetched Francisco Pecante, a member of the local CVO, who initially investigated the incident. Then he sought Perfecto Pagas, the barangay captain of Togbongon. Together, they brought the victim to the Surigao Provincial Hospital where she was physically examined and medically treated. The attending physician, Dr. Panfilo Jorge Tremedal III, testified that on August 19, 1995, he was a resident doctor of the hospital. He checked up the person of Juliet Magamayo who complained that she has been raped. Among his findings was an abrasion of the labia majora. In his expert opinion, the injury could have probably been caused by a blunt object like an erect human penis. Another member of the medical staff was also presented by the prosecution: Elsa Adlawan who was employed as a medical technologist by the hospital. She declared that on the same date, she received a vaginal specimen taken from Juliet for a laboratory evaluation for the presence of spermatozoa. After conducting the required tests, she determined the said specimen to be positive for spermatozoa. With the prosecution resting its case, the defense made its counter-presentation of the facts. It first offered Nilda Cabug-os, who, per her own declaration, is a friend of the victim but not related to her. She recalled that Juliet arrived at her house in Togbongon at about four oclock in the afternoon of August 18, 1995, purportedly to collect a sum of money Michael Balantucas owed her. They have only conversed for a brief moment when Juliet went her way, returning after about two hours in the company of a male escort, one Jeffrey Lerio. Later, Juliet would again leave the house with Jeffrey for an undisclosed destination. By the time the clock struck eight, Juliet came back to the house. As a matter of hospitality, Nilda extended an invitation to her guest to spend the night in their abode, which invitation Juliet readily accepted. The latter was already sleeping when some young men came to drop by. She rose to entertain her visitors. More than that, she went out with them. And although she asked Nildas permission, she did not say where they were going. It was the last time she saw her that night. The next morning greeted Nilda with a neighbors story that Juliet allowed herself to have sexual intercourse with several men in the house of Michael Balantucas. She replied that she and her husband cautioned her about going out so late in the night but Juliets persistence made them yield. She remembered that Juliet was wearing maong pants and a blouse on the day of the incident. She also wore a cheap wristwatch worth about P35.00, a small belt worth approximately P30.00, a headband and shoes made of cloth. She did not notice any fancy jewelry.

Another witness, Perfecto Pagas, gave evidence that he is a barangay kagawad of Togbongon for three years, although a tricycle driver by vocation. He came to know of Juliet not only because she is a frequent passenger but allegedly due to her reputation in the locality of associating herself with different men. According to Pagas, sometime in March 1995, Juliet complained to him in the office of the barangay council that she was raped by five men. She did not identify any names. The complaint was not pursued as he heard later on that she has been paid. He admitted too that he failed to enter the complaint in the official records on the excuse that Juliet anyway did not return anymore. In his defense, the accused Adriano Seguis testified that on March 9, 1995, Juliet approached him and made a request for him to bear witness in a rape case she was about to file. It was not clear whether this is the same incident of the alleged rape that she complained to Kagawad Pagas. He claimed that it was the first time that they met, although they became acquaintances after. At any rate this is not the reason why he refused her. He simply had no knowledge of the incident. Seguis must have felt history repeating itself right before his very eyes. On the morning of August 19, 1995, at 6 a.m., he arrived at the residence of Michael Balantucas. He went there together with his coaccused Rosalito Estebe pursuant to a prior agreement that they would help Michael in harvesting his crop of palay. In the uncanniest of coincidences, Juliet, who was already there when he arrived, again was apparently involved in another case of rape which happened the previous night, and once more asked him to testify for her. This time the request was coupled with a threat that she would implicate him in the legal action if he refused to cooperate. For the second time in as many instance, he rejected her plea. For scorning her twice, he incurred her fury. She made good her threat and implicated him. In an unexpected turn of events, the defense called to the witness stand Michael Balantucas who previously testified for the prosecution. He was this time singing a different tune. He claimed that his conscience was bothering him, and he could not suffer the burden of seeing two innocent men go to jail. That is why he elected to testify even though he was aware that he was courting criminal prosecution in changing his testimony. Michael recanted his former testimony by declaring that in the evening of August 18, 1995, he was staying at his house with Juliet and his siblings, Rolando and Lilibeth, when at around ten oclock, five men arrived. These five were the accused Lolong Doquila, Elmer Canico, Loloy Gibertas, Berfel dela Cruz, and a certain Rolando Ezperanza. They had a talk with Juliet wherein it was agreed that they would rent [2] her (i.e., have sex with her) that night for a fee of one thousand pesos. While the lady supposedly kept her part of the bargain, the men did not. Instead they even had the audacity to take her bracelet and wristwatch when they left at about two oclock dawn. Juliet was enraged. She wanted to bring her customers [3] to court not to collect the bill but to charge them with rape. When Seguis and Estebe arrived the next day, she asked the three of them (including Michael) to testify in her behalf, otherwise she would implicate them. As far as Michael knows, he was the only one who acceded to the ladys demand. Rosalito Estebe basically towed the same story line as the two other witnesses. He testified that he knows Juliet as she often comes to Togbongon where he lives. One time, on March 1995, he saw her engage in sexual intercourse with multiple partners in their barrio. He himself did not take part in the orgy. Later, she asked him to be her witness as she intended to file rape charges against the persons who had sex with her. He refused as he heard that she has been paid the sum of P1,000.00. Subsequently on May 14, 1995, which was the fiesta in Togbongon, Juliet again requested him to be a witness in the complaint for rape she has filed against Ricky Antallan, Michael Balantucas, Jeffrey Lerio, Lolong Doquila, Elmer Canico and Berfel dela Cruz. When he rejected her, she implicated him in the present case. In rebuttal, Juliet denied that she agreed to have sex with anyone for P1,000.00. She reiterated her stand that she was abused by all seven men. Furthermore, it is not true that she merely implicated Seguis and Estebe after the two declined to be her witnesses. Both also had sex with her. After trial, the lower court pronounced the following sentence: [4] WHEREFORE, premises considered, the Court finds each of the accused, Adriano Seguis or Adriano Seguis Jr. and Rosalito Estebe, guilty beyond reasonable doubt as a principal (sic) of the crime of simple

rape under Article 335 of the Revised Penal Code, and hereby sentences each of them to suffer the penalty of reclusion perpetua; and to pay one-half of the costs. Each of the said accused is ordered to indemnify the victim, Juliet Magamayo, in the amount of P50,000.00 for the rape committed by him.[5] Hence, the present appeal. In their brief, appellants raised the lone assigned error, to wit: THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY THOUGH NOT OF THE CRIME CHARGED BUT ONLY OF SIMPLE RAPE WITHOUT THEIR GUILT HAVING BEEN PROVED BEYOND REASONABLE DOUBT. It is to be noted that the accused in this case were originally indicted for the felony of robbery with multiple rape, a special complex crime punishable under Art. 294, par. 1 of the Revised Penal Code and which is committed when the robbery shall have been accompanied by rape. The said provision, needless to say, covers cases of multiple rapes. [6] This is primarily due to the fact that the juridical concept of this crime does not limit the consummation of rape against one single victim or to one single act, making other rapes in excess of that number as separate, independent offense or offenses. All the rapes are merged in the composite, integrated whole that is robbery with rape, so long as the rapes accompanied the robbery. It does not matter too whether the rape occurred before, during, or after the robbery. Still and all, this does not change the nature of the felony. It is essentially a crime against property. The following are its elements: (1) the taking of personal property is committed with violence or intimidation against persons; (2) the property taken belongs to another; (3) the taking is done with animo lucrandi; and, (4) the robbery is accompanied by rape. To sustain a conviction, it is imperative that the robbery itself must be conclusively established; just as the fact that it was the accused who committed it be proved beyond reasonable doubt. The prosecution must be able to demonstrate the level of their participation with legal and moral certainty, including the existence of a conspiracy, if any. Otherwise, those who were charged should be acquitted, at least for the robbery. Proof of the rape alone is not sufficient to support a conviction for the crime of robbery with rape. This is exactly the factual conclusion of the trial court, whose findings, to reiterate, are accorded great weight and respect as trial judges are undeniably in the best position to weigh the declaration of witnesses in light of their opportunity to observe physically the witnesses conduct and attitude during trial. [7] Thus said the court: x x x However there is no sufficient evidence pointing to the herein two accused as the ones who divested the victim of her money and valuables. The complainant herself admitted that she did not know who among the many accused took her gold ring, bracelet and cash. All that she became aware of after her horrible experience was she no longer had the aforementioned items. x x x There is a complete lack of evidence pointing to Adriano Seguis or Rosalito Estebe as the ones who took the valuables in question. In the absence of proof of conspiracy among the accused to commit the crime of robbery, they are liable only for their own separate and individual acts. But the lower courts finding of their non-participation in the robbery does not mean that they are totally guiltless. They will still be held accountable for whatever unlawful acts they may have committed, and for which acts they were charged. In a criminal action for robbery with rape, where the prosecution failed to prove the robo or the participation of the accused in it, the latter may still be convicted for the rape. As already mentioned, the trial court has ruled that the appellants had carnal knowledge of the private complainant by using force and intimidation. It convicted them of one count of rape each because there was no showing that they conspired or assisted each other in committing those rapes.

We affirm the conviction. This Court has steadfastly adhered to the rule that when a woman testifies that she has been raped, and if her testimony meets the test of credibility, the accused may be convicted on the basis thereof. [8] A rape victim who testifies in a categorical, straightforward, spontaneous and frank manner, and remains consistent, is a credible witness. [9] If her story had only been contrived, she would not have been so composed and consistent throughout her entire testimony in the face of intense and lengthy interrogation. [10] In the case at bar, the victim gave a direct and straight narration of the events which only evinces the truthfulness of her testimony. Her story is corroborated on its material points by an impartial and unbiased witness, Lilibeth Balantucas, who has absolutely no personal interest in the outcome of this suit. Also, the medical evidence is consistent with the theory that the complainant had been a victim of rape. In addition, Juliets credibility is bolstered by her instantaneous report of the crime to the police. The incident occurred in the early morning of August 19, 1995, and the very next day, or on August 20, 1995, she executed her affidavit before the authorities of the Surigao City Police. Besides, the appellants failed to prove any ulterior or improper motive which could have induced the victim and her witness to testify against or falsely implicate them in the commission of the crime. [11] Indeed, if an accused had really nothing to do with the crime, it is against the natural order of events and human nature and against the presumption of good faith that the prosecution witness would falsely testify against the former. [12] Thus, we adhere to the established rule that in the absence of any evidence to show that the witnesses for the prosecution were actuated by any improper motive, their identification of the accused-appellants should be given full faith and credit. [13] Appellants defense that they were merely implicated by Juliet as they refused to testify in her favor is far from convincing. Both of them testified that they are not even close friends of Juliet. As correctly pointed out by the Solicitor-General, It is quite contrary to human experience that a woman would narrate to somebody how she was used sexually for a fee (and was not paid) and thereafter request said person whom she hardly knew to testify in her favor to support her complaint. [14] Also, such motive if availing is attributable only to Juliet. The same cannot be imputed to the other vital witness Lilibeth, who, to repeat, does not have any interest in this case and yet explicitly declared that appellants were among the seven men who went to their house the night of August 18, 1995. In support of their lone assignment of error, the accused advanced several arguments designed to destroy the credibility of the witness herself and then her testimony. We are not impressed by these arguments. I Appellants basic submission is a mere restatement of their defense. They assert that they were not present at the scene of the crime during the supposed moment that it was unfolding. On the contrary, they arrived there only at six oclock the following morning allegedly to help Michael Balantucas harvest his palay. Such submission must fail for obvious reasons. We have ruled that the defense of alibi is inherently weak and crumbles in the light of positive declarations of truthful witnesses who testified on affirmative matters that the accused-appellants were at the scene of the incident and were the victims assailants and perpetrators of the crime. [15] In the present case, the appellants were positively identified by the victim, thus: Prosec. Menor : After that person was finished, what happened next? Juliet : Then Adriano Seguis and Rosalito Estebe went up the house. Q : Did they enter the room? A : Yes, sir. Rosalito entered the room first. Q : By the way, do you know personally Rosalito Estebe? A : Yes, sir.

Q : For how long have you known him prior to the incident? A : A long time, sir. Q : In Barangay Togbongon? A : Yes, sir. Q : You knew him because you have stayed in Togbongon, Surigao City? A : Yes, sir. It was Jolly who introduced (sic) to me. Q : How were you able to recognize that it was Rosalito Estebe and Adriano Seguis who entered the room? A : Because Rosalito and Adriano called for Michael Tol. Q : My question, how were you able to recognize Rosalito Estebe and Adriano Seguis. A : Estebe was bringing (sic) a flashlight. Q : How about Adriano Seguis? A : He was there sitting near the head of Michael. Q : Was the room still lighted at that time. A : No more, sir, only the flashlight. Q : Did you see the face of Rosalito Estebe? A : Yes, sir. Q : How were you able to see the faces of Adriano Seguis and Rosalito Estebe? A : The light from the flashlight was moving around. Q : Are you very sure that the two persons who came late were Adriano Seguis and Rosalito Estebe? A : Yes, sir.[16] In addition, there is the testimony of Lilibeth Balantucas, pointing to the two appellants as among those who entered their house at around midnight. Her testimonial narrative proved that Seguis and Estebe were in the Balantucas residence at precisely or about the same time Juliet was being raped. It forthrightly contradicted the assertions of the two that they arrived there only about six oclock in the morning of the next day. According to her: xxx Prosec. Menor: You said you slept at about 12:00 (sic) oclock in the evening, what time did you awake up? Lilibeth: At 12:00 because I want to urinate. Q : Where did you go after you wake (sic) up? A : To the kitchen. Q : When you reached the kitchen of your house, what happened next? A : Then some men entered our room. Q : How many were they? A : Five persons. Q : How about you? A : I was outside because I was afraid and I was pulled. Q : By whom? A : Dodong Estebe, Adriano Seguis. Q : Including Estebe and Seguis, how many persons were there in the house, all in all? A : Seven persons. Q : What did Seguis and Estebe do to you? A : Seguis and Estebe held my hands and told me to keep quite or they would kill me. xxx Q : Considering that it was nighttime, how were you able to recognize them when they were able to drag you outside? A : Because there was a light. Q : Light from what? A : From electric bulb. Q : And where was that electric bulb located or placed? A : Outside. Q : Are you referring to the post? A : No, sir, it was came from our kitchen. Q : Kitchen of your house? A : Yes, sir.[17]

Moreover, the defense of alibi is an issue of fact that hinges on credibility, the relative weight of which the trial court assigns to the testimony of the witnesses. Such assessment, unless patently and clearly inconsistent, must be accepted, for verily a careful evaluation of the record does not reveal that the trial courts rejection of the defense of alibi is inconsistent with the evidence on record. [18] Lastly, it puzzles this court why the appellants, despite their plea of alibi, never testified as to their whereabouts the night of August 18, 1995. Neither did they present any witness who can plausibly confirm that they were indeed in another place at that period. For the defense of alibi to be appreciated, it is not enough to prove that the accused was somewhere else when the offense was committed. It must likewise be shown that he was so far away that it was not possible for him to be physically present at the place of the crime or its immediate vicinity at the time of its commission. The rule is settled that for the defense of alibi to prosper, the requirement of time and place must be strictly met. [19] II Appellants contend that private complainant is not credible as she is known in the locality as a scheming 19-year old woman, of loose morals, engaged in the oldest trade, and wise in her ways with the world. [20] Consequently, it is a misplaced gesture of sympathy and compassion to consider her truthful and a paragon of a Filipinas inbred modesty and Christian virtues. The record, however, is bereft of any evidence that Juliet is a woman for hire, except for the statements of witnesses Nilda Cabug-os, Perfecto Pagas, and appellant Rosalito Estebe to the effect that she is often seen in the company of men. These recitals by themselves cannot be made sufficient basis for accepting the veracity of the allegation. Greater amount of quantitative and qualitative proof is needed. Moreover, it is unlikely that even a prostitute would agree to have sex continuously with five to seven men for one night for a fee of P1,000.00. And it is even more unlikely that she would go to the extent of filing a case against them, two of whom are acquaintances, have her parts physically examined, and testify in court how she was ravaged by them just to get even for their failure to pay. Obviously, the reason why Juliet went to court and opted to suffer the ordeal of being interrogated on her harrowing experience is to obtain justice. III Appellants next call our attention on the so-called badges or telltale signs of a perfected contract for sexual services between Juliet and the accused. The appellants would like to impress upon this Court that an agreement would lend credence to their theory that she allowed herself to be used that night by five men who in turn reneged on their word of paying her. As a consequence of which, she was left with no choice but to file this action and include the appellants as well for refusing her request to be her witnesses. In the alternative, the agreement should demonstrate that if there was any sexual activity participated in by the woman and the appellants, it was at least consensual. First . They argue that if it were true that Juliet was raped no less than eight times and by seven different men, she should have sustained more injuries than mere superficial linear abrasion on the labia majora. This should manifest that every intercourse was done, not with force and intimidation, but with care and finesse. Suffice it to say that the absence of external signs of physical injuries does not negate rape. [21] This is especially true if we take into consideration that two men held Juliets hands while she was being raped in succession. Be that as it may, whatever wounds she might have suffered is consistent with the hypothesis that she was raped. As opined by Dr. Tremedal, an acknowledged expert witness, her scars, by their very nature, must have been caused by a blunt object hitting the vagina with force, such as an erect male penis during sexual intercourse. Second. Appellants ask how come Seguis and Estebe preferred not to rape Lilibeth Balantucas herself who was already at their complete control during the time that complainant was allegedly being gangraped by the other five accused inside the room? Why did they wait for the five to finish and leave behind

in the process a fresh, sweeter, and younger [22] Lilibeth? They claim that this is unnatural for people driven by lust and bestial desire, unless there was a prior arrangement made by them with the victim. We are not persuaded. Lust is not a respecter of time, place and circumstances, nor of persons and relationships, [23] and neither is it a conformist to reason and good taste, nor common sense even. When a man is overcome by lustful passions, certainly it would be too much to expect that he will still concern himself with the age, scent or appearance of his prospect. Third. Appellants contend that Juliets act of telling Adriano Seguis, before she was raped by the latter, that she could not take it anymore is indicative of the existence of a prior agreement with the seven accused for a fee of P1,000. Again, the argument lacks merit. When Juliet told Seguis that she could not take it, she was not asking for a recess or timeout [24] as they insist, but was actually pleading that he no longer rape her as she has suffered enough in the hands of the other accused. Fourth. They assert that the subsequent act of Seguis and Estebe in socializing with the victim and the Balantucas siblings negates any idea of a misdeed. A reality check, however, would show that the accused stayed for a while after raping Juliet not to socialize with them, as in fact the two warned them not to tell anybody of what happened or they would be killed. Although it is correct that Seguis later showed some signs of remorse towards the victim, his acts were belated and could no longer erase his crime. The ambiguous attitude of Seguis is understandable. While succumbing to his uncontrollable lust, he remained quite sympathetic to the plight of Juliet, who was an old acquaintance. Nevertheless, the apparent regret shown by Seguis after the act of rape could not undo what he had done. It was too late for recriminations. IV On another point, appellants keep harping on the one hundred eighty-degree turn around made by Michael on the stand. They say that if the alleged sexual congresses were true, and witnessed by Michael, it is highly unthinkable that, despite the risk of facing criminal prosecution for false testimony and perjury, he would still recant his previous testimony in court in favor of the two. They stress that Juliet and Michael are more than good friends; and, the latter by force of circumstance should not hesitate to defend the complainants position. The Court fails to be impressed with the recantation of Michael Balantucas for several reasons. A recantation does not necessarily cancel an earlier declaration. [25] Like any other testimony, it is subject to the test of credibility based on the relevant circumstances and especially the demeanor of the witness on the stand. Moreover, it should be received with caution as otherwise it could make solemn trials a mockery and place the investigation of truth at the mercy of unscrupulous witnesses. [26] In any event, the eyewitness accounts of Juliet herself and Lilibeth are more than sufficient to prove beyond doubt the participation of the appellants in the commission of the assault. Even if the trial court had not given credence to the first testimony of Michael, there still is enough indication to ascertain their culpability. His declaration is merely cumulative, or additional evidence of the same kind tending to establish the same point or factual issue. V Lastly, appellants put private complainant to task for alleged marked contradictions and pure improbabilities surrounding her story. For instance, they assert that it would be highly doubtful for Juliet not to notice who took away her gold ring and gold bracelet, if in the first place there were any. So too are they puzzled with how consistent she is in her perception of how long each accused raped her. To them this is a sure sign that her performance on the stand is rehearsed. The submission deserves scant attention. Verily, one cannot expect a victim of such nerve-racking experience to become aware of every minute detail of the event, or question her keenness to observe one aspect of it but not another. It is understandable for the poor victim not to remember who particularly

among the seven took away her valuables. At that point, her ring and bracelet were not that important to her. Regarding the time, it could well be the only thing that concerned her mind. In any event, these contradictions or improbabilities, as appellants would put it, cannot erode the credibility of Juliets testimony. IN VIEW WHEREOF , the Decision of the Regional Trial Court of Surigao City in Criminal Case No. 4581 is AFFIRMED in toto. Costs against appellants. SO ORDERED.