SECOND DVSON

[G.R. No. 135784. December 15, 2000]

RICARDO FORTUNA Y GRAGASIN, petitioner, vs.!O! OF TH
!HII!!INS, respondent.
D C I S I O N
BOSIO, . :
Perhaps no other profession in the country has gone through incessant maligning
by the public in general than its own police force. Much has been heard about the
notoriety of this profession for excessive use and illegal discharge of power. The
present case is yet another excuse for such vilification.
On 21 July 1992 at about 5:00 o'clock in the afternoon, while Diosdada Montecillo
and her brother Mario Montecillo were standing at the corner of Mabini and Harrison
Streets waiting for a ride home, a mobile patrol car of the Western Police District with
three (3) policemen on board stopped in front of them. The policeman seated on the
right at the front seat alighted and without a word frisked Mario. He took Mario's belt,
pointed to a supposedly blunt object in its buckle and uttered the
word "evidence."
[1]
Then he motioned to Mario to board the car. The terrified Mario
obeyed and seated himself at the back together with another policeman. Diosdada
instinctively followed suit and sat beside Mario.
They cruised towards Roxas Boulevard. The driver then asked Mario why he was
carrying a "deadly weapon," to which Mario answered, "for self-defense since he was a
polio victim."
[2]
The driver and another policeman who were both seated in front grilled
Mario. They frightened him by telling him that for carrying a deadly weapon outside his
residence he would be brought to the Bicutan police station where he would be
interrogated by the police, mauled by other prisoners and heckled by the press. As they
approached Ospital ng Maynila, the mobile car pulled over and the two (2) policemen in
front told the Montecillos that the bailbond for carrying a "deadly
weapon" was P12,000.00. At this point, the driver asked how much money they
had. Without answering, Mario gave his P1,000.00 to Diosdada who placed the money
inside her wallet.
Diosdada was then made to alight from the car. She was followed by the driver
and was told to go behind the vehicle. There, the driver forced her to take out her wallet
and rummaged through its contents. He counted her money. She had P5,000.00
in her wallet. The driver tookP1,500.00 and left her P3,500.00. He instructed her to tell
his companions that all she had was P3,500.00. While going back to the car the driver
demanded from her any piece of jewelry that could be pawned. Ruefully, she removed
her wristwatch and offered it to him. The driver declined saying, "Never mind,"
[3]
and
proceeded to board the car. Diosdada, still fearing for the safety of her brother, followed
and sat beside him in the car.
Once in the car, Diosdada was directed by the policeman at the front passenger
seat to place all her money on the console box near the gearshift. The car then
proceeded to Harrison Plaza where the Montecillos were told to disembark. From there,
their dreadful experience over, they went home to mus, Cavite.
The following day Diosdada recounted her harrowing story to her employer Manuel
Felix who readily accompanied her and her brother Mario to the office of General
Diokno where they lodged their complaint. Gen. Diokno directed one of his men, a
certain Lt. Ronas, to assist the complainants in looking for the erring policemen. They
boarded the police patrol car and scoured the Mabini area for the culprits. They did not
find them.
When they returned to the police station, a line-up of policemen was immediately
assembled. Diosdada readily recognized one of them as the policeman who was
seated beside them in the back of the car. She trembled at the sight of him. She then
rushed to Lt. Ronas and told him that she saw the policeman who sat beside them in
the car. He was identified by Lt. Ronas as PO2 Ricardo Fortuna. A few minutes later,
Gen. Diokno summoned the complainants. As they approached the General, they at
once saw PO2 Eduardo Garcia whom they recognized as the policeman who frisked
Mario. The following day, they met the last of their tormentors, the driver of the mobile
car who played heavily on their nerves - PO3 Ramon Pablo.
The three (3) policemen were accordingly charged with robbery. After trial, they
were found guilty of having conspired in committing the crime with intimidation of
persons. They were each sentenced to a prison term of six (6) years and one (1) day
to ten (10) years of prision mayor, to restitute in favor of private complainants Diosdada
Montecillo and Mario Montecillo the sum of P5,000.00, and to indemnify them in the
amount of P20,000.00 for moral damages and P15,000.00 for attorney's fees.
[4]

The accused separately appealed to the Court of Appeals. On 31 March 1997 the
appellate court affirmed the lower court's verdict.
[5]
Accused-appellant Ricardo Fortuna
moved for reconsideration but the motion was denied. Hence, this petition by Fortuna
alone under Rule 45 of the Rules of Court. He contends that the appellate court erred
in holding that private complainants gave the money to the accused under duress, the
same being negated by the prosecution's evidence, and in affirming the decision of the
court below. He argued that the evidence presented by the prosecution did not support
the theory of conspiracy as against him.
[6]

The issues raised by accused-appellant, as correctly observed by the Solicitor

General, are purely factual. We have consistently stressed that in a petition for review
on .0rtiorari this Court does not sit as an arbiter of facts. As such, it is not our
function to re-examine every appreciation of facts made by the trial and appellate courts
unless the evidence on record does not support their findings or the judgment is based
on a misappreciation of facts.
[7]
The ascertainment of what actually happened in a
controverted situation is the function of the lower courts. f we are to re-examine every
factual finding made by them, we would not only be prolonging the judicial process but
would also be imposing upon the heavily clogged dockets of this Court.
We do not see any infirmity in the present case justifying a departure from this well-
settled rule. On the contrary, we are convinced that the trial and appellate courts did
not err in holding that accused-appellant Fortuna conspired with the accused Pablo and
Garcia in intimidating private complainants to give them their money.
We are convinced that there was indeed sufficient intimidation applied on the
offended parties as the acts performed by the three (3) accused, coupled with the
circumstances under which they were executed, engendered fear in the minds of their
victims and hindered the free exercise of their will. The three (3) accused succeeded in
coercing them to choose between two (2) alternatives, to wit: to part with their money or
suffer the burden and humiliation of being taken to the police station.
To our mind, the success of the accused in taking their victims' money was
premised on threats of prosecution and arrest. This intense infusion of fear was
intimidation, plain and simple.
Accused-appellant further argues that assuming argu0ndo that the element of
intimidation did exist, the lower court erred in holding that he conspired with his
companions in perpetrating the offense charged.
This indeed is easy to assert, for conspiracy is something which exists only in the
minds of the conspirators, which can easily be denied. However, conspiracy may be
detected and deduced from the circumstances of the case which when pieced together
will indubitably indicate that they form part of a common design to commit a felony; and,
to establish conspiracy, it is not essential that there be actual proof evincing that all of
the conspirators took a direct part in every act, it being sufficient that they acted in
concert pursuant to the same objective.
[8]

n the present case, accused-appellant would want to impress upon this Court that
his silence inside the car during Mario's interrogation confirmed his claim that he did not
participate in the offense.
We do not agree. As a police officer, it is his primary duty to avert by all means the
commission of an offense. As such, he should not have kept his silence but, instead,
should have protected the Montecillos from his mulcting colleagues. This accused-
appellant failed to do. His silence then could only be viewed as a form of moral support
which he zealously lent to his co-conspirators.
n one case, we ruled that in conspiracy all those who in one way or another helped
and cooperated in the consummation of a felony were co-conspirators.
[9]
Hence, all of
the three (3) accused in the present case should be held guilty of robbery with
intimidation against persons.
We however observe that the courts below failed to appreciate the aggravating
circumstance of "abuse of public position."
[10]
The mere fact that the three (3) accused
were all police officers at the time of the robbery placed them in a position to perpetrate
the offense. f they were not police officers they could not have terrified the Montecillos
into boarding the mobile patrol car and forced them to hand over their money. Precisely
it was on account of their authority that the Montecillos believed that Mario had in fact
committed a crime and would be brought to the police station for investigation unless
they gave them what they demanded.
Accordingly, the penalty imposed should be modified. Under Art. 294, par. (5),
of %0 R0;is0d P0nal Cod0, the penalty for simple robbery is prision .orr0..ional in its
maximum period to prision mayor in its medium period. n view of the aggravating
circumstance of abuse of public position, the penalty should be imposed in its maximum
period
[11]
while the minimum shall be taken from the penalty next lower in degree, which
is arr0sto mayor maximum to prision .orr0..ional medium in any of its periods the
range of which is four (4) months and one (1) day to four (4) years and two (2) months.
WHEREFORE, the Decision of the Court of Appeals which affirmed that of the trial
court finding accused-appellant Ricardo Fortuna guilty of robbery and ordering him to
pay complaining witnesses Diosdada Montecillo and Mario Montecillo P5,000.00
representing the money taken from them, P20,000.00 for moral damages
and P15,000.00 for attorney's fees, is AFFRMED with the modification that accused-
appellant Ricardo Fortuna is SENTENCED to the indeterminate prison term of two (2)
years four (4) months and twenty (20) days of the medium period ofarr0sto
mayor maximum to prision .orr0..ional medium, as minimum, to eight (8) years two (2)
months and ten (10) days of the maximum period of prision .orr0..ional maximum
to prision mayor medium, as maximum.
Costs against accused-appellant Ricardo Fortuna.
SO ORDRD.
M0ndoza, Quisumbing, Bu0na, and D0 L0on, Jr., JJ., concur.

[1]
TSN, 21 July 1993, p.10.
[2]
TSN, 8 February 1993, p.6.
[3]
TSN, 3 February 1993, p. 23.
[4]
Decision penned by Judge Zenaida R. Dacuna, RTC-Br. 19, Manila; Records, pp. 174-180.
[5]
Associate Justice Antonio M. Martinez (now Ret. Supreme Court Associate Justice) as ponente and
Associate Justices Eduardo G. Montenegro and Salvador J. Valdez, Jr. concurring; CA Rollo, pp. 20-33.
[6]
Rollo, pp.11-12.
[7]
Go ;. Court of Appeals, G.R. No. 104609, 30 June 1993, 224 SCRA 147.
[8]
People v. Base, G.R. No. 109773, 30 March 2000.
[9]
bid.
[10]
Art. 14 (1), The Revised Penal Code.
[11]
Art. 63, id.

THRD DVSON
[G.R. No. 111313-14. January 16, 1998]
!O! OF TH !HII!!INS, plaintiff-appellee, vs. JUI
VIAMOR, a.k.a. "JUITO VIAMOR" and "JUIO VIAMOR",
ARMANDO SCAANT and JOS!ITO "OCOC"
GAMI, accused,
JUI VIAMOR,accused-appellant.
D C I S I O N
!ANGANIBAN, .:
n denying this appeal, the Court reiterates some well-known doctrines: (1) the trial
court's assessment of the witnesses and their credibility deserves great respect; (2)
delay in reporting a crime and in identifying the culprits, when sufficiently explained,
does not necessarily taint an eyewitness' account; and (3) awards of actual and moral
damages must be justified by adequate proof.
The Case

Before us is an appeal from the Joint Decision

[1]
dated July 8, 1993 of the Regional
Trial Court of Surigao City, Branch 30, rendered in Criminal Case Nos. 3846 and 3847,
convicting Appellant Julie Villamor of two counts of murder and sentencing him
to r0.lusin p0rp0tua for each count.
Two separate amended nformations, both dated October 29, 1992, were filed by
Second Assistant Surigao City Prosecutor Danilo C. Menor against Appellant Julie
Villamor and his co-accused. The first amended nformation, docketed as Criminal
Case No. 3846, charged appellant with murder, committed as follows:
[2]

"That on or about [the] 8th day of February, 1987 in the City of Surigao,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together and mutually helping
one another armed with firearms and deadly weapons, with intent to kill
Benigno Tenajeros, without any justifiable cause did then and there wilfully,
unlawfully and feloniously and with treachery and taking advantage of superior
strength, shoot and stab Benigno Tenajeros with the use of a firearms (sic)
and a knife, thereby inflicting upon Benigno Tenajeros mortal wounds which
caused his death, to the damage and prejudice of the heirs of Benigno
Tenajeros in such sum as may be allowed by law.
Contrary to law, with the qualifying circumstances of treachery and taking
advantage of superior strength.
The second amended nformation, docketed as Criminal Case No. 3847, also
charged appellant and his co-accused with another count of murder, committed as
follows:
[3]

"That on or about the 8th day of January, 1987 in the City of Surigao,
Philippines, and within the jurisdiction of this Honorable [C]ourt, the above-
named accused, conspiring and confederating together and mutually helping
one another, armed with firearms and knife, with intent to kill Lito Edo without
any justifiable cause, did then and there wilfullly, unlawfully and feloniously
and with treachery and taking advantage of superior strength, shoot and stab
Lito Edo with the use of the said firearms and knife, thereby inflicting upon
said Lito Edo mortal wounds which caused his death, to the damage and
prejudice of the heirs of Lito Edo in such sum as may be allowed by law.
Contrary to law, with the qualifying circumstance of treachery and taking
advantage of superior strength.
Only Appellant Julie Villamor was apprehended by the Surigao Police; his co-
accused Armando Escalante and Josepito "Locloc Gamil were at large. Consequently,
appellant alone was arraigned on March 4, 1993. With the assistance of counsel, he
entered a plea of "not guilty to both counts.
[4]

The case against Gamil and Escalante was archived, but a separate trial for
appellant was conducted. n due course, the trial court rendered the assailed Joint
Decision, the decretal portion of which reads:
[5]

"WHEREFORE, this Court finds accused Julie Villamor, also known as Julito
Villamor and Julio Villamor, GULTY beyond reasonable count, as charged in
both Criminal Cases Nos. 3846 and 3847, for the crime of Murder, defined
and penalized in Article 248 of the Revised Penal Code, metes out the penalty
of reclusion perpetua in each case:
1. To indemnify the widow and children of victim Benigno Tenajeros
the sum of Thirty Thousand (P30,000.00) Pesos; in addition, to pay moral
damages of P5,000.00; lose [sic] of earning capacity of P180,000.00 for five
(5) years, at the rate of P3,000.00 per month; funeral expenses of P6,000.00.
2. To indemnify the heirs of victim Lito Edo the sum of Thirty Thousand
(P30,000.00) Pesos; in addition, to pay moral damages ofP5,000.00; lose [sic]
of earning capacity, for five (5) years, at the rate of P50.00 daily; funeral
expenses of P3,000.00;
Without subsidiary imprisonment, in case of insolvency;
3. To suffer the accessory penalty, provided for by law; and,
4. To pay one/third [sic] (1/3) of the cost in both cases.
The cases with respect to accused Armando Escalante and Josepito 'Locloc'
Gamil are hereby placed in ARCHVE, to be revived only upon their
apprehension.
n the meantime, let an alias warrant issue for the arrest of said two (2)
accused.
Hence, this appeal.
[6]

The Facts 'ersion of the Prosecution

The facts of this case, as culled from the testimonies of the prosecution witnesses,
were synthesized by the solicitor general as follows:
[7]

"n the evening of January 8, 1987, around 7:00 o'clock, Eduardo Escalante
was sent by his father to buy food for the workers who [would] work on their
ricefield the following day. He walked from their house at Sitio Looc,
Barangay Luna, Surigao City, toward the highway to wait for a ride (TSN,
March 18, 1993, p. 4). At the highway, he met appellant Julie Villamor, and
his first cousins Armando Escalante and Josepito "Locloc Gamil (TSN, March
18, 1993, p. 5), all residents of Sitio Looc. Gamil asked him about his
destination and Eduardo Escalante replied that he was going to Surigao
City. Thereupon, appellant declared 'we will go together'. (TSN, March 18,
1993, p. 6)
Then the tricycle of Benigno Tenajeros, with Lito Edo on board, arrived. The
four boarded the vehicle. Eduardo Escalante described the seating
arrangement as follows:
'Q Your said that you and the three other persons you mentioned, namely, Julie Villamor,
Armando Escalante and Locloc Gamil boarded the motorized tricycle. boarded already
with Lito Edo, where did Armando Escalante sit?
A At the front seat beside Lito Edo.
Q On the outer or near the driver . beside the driver or not?
A Outer side, sir.
Q How about Julie Villamor, where did he seat?
A Right at the back of the driver.
Q How about Josepito Locloc Gamil, where did he seat? (sic)
A At the back of Armando Escalante at the backseat.
Q How about you, where did you sit?
A At the side of Locloc Gamil.
Q And you were seated opposite Julie Villamor?
A Yes, sir.' (TSN, March 18, 1993, p. 7)
On the way to the 'City', near the junction of Bernadette Village, appellant
suddenly drew a revolver with his left hand from his right hip (TSN, March 18,
1993, p. 8). Eduardo Escalante cowered in fear and heard appellant's gun
fire. As he glanced back, he saw Locloc Gamil pull a knife and cut the front
part of Tenajeros' neck. Tenajeros fell from the tricycle which itself fell into a
nearby canal (TSN, March 18, 1993, p. 10).
As Eduardo Escalante emerged from the tricycle, he saw Lito Edo running
towards the ricefield while Armando Escalante and Julie Villamor took turns
shooting xxx him (Lito Edo), who finally fell down. Appellant and his cohorts
approached Edo to find out if he was dead. After that, appellant, Armando
Escalante and Locloc Gamil escorted Eduardo back to his house with a
warning that they would kill him if he reports the incident to the authorities
(TSN, March 18, 1993, pp. 12-13).
Dra. Alice Ensomo Gonzaga, Assistant City Health Officer, Surigao City
described the injuries sustained by the victim as follows:
'On Benigno Tenajeros:
1). Wound 21 cm. x 6 cm. large gaping in size with irregular edges,
located at the anterior neck length extending from the medial tip of the left
clavicle to the right side of the neck to the anterior tip of the right scapule back
affecting skin, subcutaneous tissues, muscles of the neck, hitting the major
vessels of the neck, trachea separated between the 2nd and 3rd ring,
esophagus;
2). Wound (gunshot-entrance) cm. x cm. in size with contussed
and inverted edges, located at anterior left mid cheek, affecting skin;
subcutaneous tissues; muscles of the cheek to communicate with wound no.
3; and
3). Wound (gunshot-exit) cm. cm. in size with everted edges,
located at the mid right occipito temporal aspect of the head, to communicate
with wound no. 2.
Cause of Death: Shock due to internal hemorrhage secondary to gunshot and
stab wounds. (Records, p. 37)
On Lito Edo:
1). Contussion Hematoma 4 x 3 cm. in diameter, located below left
eye;
2). Wound (gunshot-entrance) x 1 cm. in size, with contussed and
inverted edges, located at the nape 3 cm. right lateral to the midline (occipito)
affecting skin; subcutaneous tissues, muscles of the neck; major vessels of
the neck (right side); and,
3). Wound (lacerated) 2 x 1 cm. in size, located at the left lateral side of
the chest; level of the 4th intercostal space, affecting skin, subcutaneous
tissues, muscles of the chest to hit the left lung.
Cause of Death: Shock due to internal hemorrhage secondary to gunshot and
stab wounds. (Records, p. 36)' (Joint Decision, pp. 5-6)
Version of the Defense

Appellant denied any involvement in the crime, interposing alibi. His

counterstatement of the facts is as follows:
[8]

"On the evening of 08 January 1987, accused-appellant Julie Villamor was in

the company of Jesus Tesaluna in the latter's house at Songkoy, Looc, Luna,
Surigao City, where they drank 'tuba', wine from a coconut tree. They spent
together the whole night in that house. (TSN, 15 April 1993, pp. 18-21; TSN,
31 March 1993, pp. 29-34 & 40-43)
When accused-appellant returned to his house on the following day,
policemen came over to his surprise and brought him to the Surigao City
Police Station. (TSN, 15 April 1993, pp. 22-23) Unknown to him, Benigno
Tenajeros and his friend Lito Edo were killed along the National Highway,
Luna, Surigao City, on the evening of 08 January 1987.
Sometime in September of 1992, or after more than five years from the
alleged occurrence of the killing incident, a witness, Eduardo Escalante,
emerged and revealed to the police authorities that accused-appellant was
one of the authors thereof. Said witness had decided to disclose what he
knew about the incident for fear that he would be jailed, being one of the
suspects, should he refuse to do so. (TSN, 18 March 1993, pp. 14-17).
RuIing of the TriaI Court

Relying largely on Eduardo's eyewitness account, the trial court convicted appellant
of two counts of murder. According to the trial court, Eduardo's testimony "vividly made
a positive detailed narration of the two victims' slaying at the hands of appellant and his
cohorts. Aside from that, the report of the medico-legal expert regarding the nature and
the location of the wounds sustained by the victims confirmed Eduardo's
testimony. The trial court held that the testimony of a single eyewitness, corroborated in
its material points by the medical findings, was sufficient to establish the guilt of the
assailants.
The trial court also ruled that the killings were "qualified by al0;osia and aggravated
by taking advantage of superior strength.
[9]

Assignment of rror

Appellant submits this lone assignment of error:

[10]

"The trial court erred in finding the accused-appellant guilty beyond

reasonable doubt of the crime of murder in Criminal Case No. 3846 in
connection with the death of Benigno Tenajeros and in Criminal Case No.
3847 in connection with the death of Lito Edo and in sentencing said accused-
appellant to suffer the penalty of r0.lusion p0rp0tua and to indemnify the heirs
of said victims specified sums of money in both cases.
n fine, appellant argues that the prosecution eyewitness' testimony was accorded
precipitate credulity despite the fact that (1) it was from a "polluted source, (2) it was
contrary to human experience, and (3) it was given only after a five-year
delay. Alternatively, the defense insists that appellant could be convicted only of two
counts of homicide, not murder, because al0;osia and abuse of superior strength were
not sufficiently proven.
The Court's RuIing

The appeal is bereft of merit.

CredibiIity of the yewitness Not a !oIIuted Source

n view of his admission that he rode with appellant and his cohorts in the tricycle
driven by one of the victims, the eyewitness was initially included by the local police in
its list of suspects in the double murder. This fact, however, does not ipso fa.to taint his
credibility. Presence at the crime scene does not automatically make one the author of
the crime.
[11]
As explained by Eduardo, he met the accused on his way to the city purely
by chance. That he rode with them in the tricycle does not constitute conspiracy; this
fact, by itself, does not show a decision on his part to participate in the crime.
[12]
n fact,
the record is bereft of any evidence that he acted in union with appellant and his group.
n this light, his testimony cannot be viewed as a means of extricating himself from
criminal liability. The implication advanced by appellant is, at best, speculative and
insufficient to overturn the trial court's assessment of his testimony.
DeIay in Reporting

An eyewitness account cannot be disregarded on account of the delay in its

reporting, so long as the delay is justified.
[13]
n this particular case, Witness Eduardo
tarried in reporting what he witnessed that fateful night for fear of reprisal. We agree
with this explanation of the trial court:
[14]

"The fact that Eduardo Escalante took some time, more than four (4) years, to
reveal his knowledge about the crime, was satisfactorily explained, because of
the threat to his life. t was not until accused Julie Villamor was apprehended
and the said witness was summoned by the police authorities, when he
revealed what he saw since he was even one of those four (4) persons,
suspected by the police, to wit:
'x x x
Prosecutor Menor:
x x x
Q You said that after Julie Villamor was apprehended by the police authorities, you were
summoned by the police authorities. Did you heed the summons?
A went to the police.
Q When you arrived at the police station, did you learn the purpose of the police
authorities in summoning you?
A Yes, sir.
Q What was the purpose of the police authorities in summoning you?
A Because was included in the four suspects, as one of the four suspects.
Q And what did the police authorities tell you?
A was told by the police that 'you are one of the four suspects who killed those two there
at the area with motorized tricycle' and then answered the policeman, 'no, sir, did not
do it, sir'.
Q And it was then that you decided to reveal to the police authorities what you witnessed
in the evening of January 8, 1987?
A Yes, sir, because if will not reveal the incident . the truth regarding the incident, will
be jailed since have no fault or offense. will be confined in jail despite the fact that
have not done wrong.
Q And you executed an affidavit in connection with these cases?
A Yes, sir.
t should also be noted that Eduardo, after overcoming his initial fear, testified for
the prosecution despite further threats to his own life. Said the trial court:
[15]

"After deciding to reveal everything he knew, not even the veiled threats of the
accused, wife Virginia, and his own relative Pedro Escalante deterred him
from testifying, to wit:
'x x x
Prosecutor Menor:
x x x
Q Pedro Escalante, defense witness, testified that you have visited the accused Julie
Villamor in the city jail for many times since his detention there, what can you say about
that?
A went to the police on February 18, in order to report the matter that the wife of Julie
Villamor went to my residence.
Q Why did you have to report that incident?
A Because they threatened me. They told me not to testify in these cases and it is better,
'you will leave this place and go to Manila and we will give you money, for something
might happen to you'.
Q Were you able to report that incident to the police station?
A was not able to report that incident because that policewoman would not take any
responsibility regarding that report because she might be admonished because could
not present witness in my behalf.
Q While you were in the police station, do you remember if you called . if you were called
by Julie Villamor?
A Yes, sir.
Q What transpired when you and Julie Villamor had a talk?
A 'f you continue to be a witness in this case, it is up to you, you might be in trouble'.
In Accord with Human perience

Appellant insists that it was utterly unbelievable that he and his cohorts would take
along a bystander to witness their crime, only to warn him later, under threat, to keep
silent about it. The Court is not persuaded. On the contrary, it was but natural for the
eyewitness to ride with appellants and his co-accused considering that the city, to where
Eduardo was headed, was from Sitio Looc. Besides, Accused Armando Escalante and
Locloc Gamil were his first cousins. n the final analysis, the argument is merely a
rehash of the insinuation that the eyewitness is a polluted source. t is a desperate
attempt to force the prosecution to establish appellant's motive for killing the two
victims. However, it is well-settled that motive is not necessary when there is a clear
and positive identification of the perpetrators of the crime.
[16]

At bottom, the Court finds no cogent reason to deviate from the well-established
doctrine that absent any arbitrariness, oversight or misappreciation of a fact which
would otherwise affect the disposition of the case, the trial court's assessment of the
credibility of a witness is accorded respect by appellate courts.
[17]

stablishing AIevosia

Eduardo testified that appellant and his co-accused, presenting themselves as

passengers, rode in the victim's tricycle. Upon reaching Bernadette Village, appellant
and his cohorts suddenly attacked the tricycle driver and one of the
passengers. Appellant shot the driver from behind while Gamil slashed his neck. Then,
appellant and Armando Escalante alternately shot Edo, who tried to flee. The speed
with which the killings were perpetrated tended directly and specially to ensure their
execution and afforded the victims no chance to put up any defense.
[18]
Clearly, alevosia
was established in this case. Abuse of superior strength, which the trial court
appreciated as a generic aggravating circumstance, need not be established, for it is
absorbed in the qualifying circumstance of treachery.
[19]

Award of Damages

Proof must support any award of damages. The grant of burial expenses to the
heirs of the two victims is not established by competent evidence. No receipts or other
credible evidence were presented. Rosa Tenajeros,
[20]
(widow of Benigno Tenajeros)
and Bago Edo,
[21]
father of Lito Edo, merely estimated the expenses allegedly
incurred. Furthermore, actual damages of thirty thousand pesos, awarded separately
by the trial court to the heirs of the two victims, appear to have been arbitrarily set. The
moral damages awarded by the trial court are similarly unsubstantiated, as the heirs did
not even testify to any fact or circumstance that would have entitled them to the
award. While no proof of pecuniary loss is necessary, it is essential that the claimant
should satisfactorily provide factual basis for the alleged moral injury.
[22]

The award for loss of earning capacity is also arbitrary. n support of the claim, the
widow of Tenajeros testified that her husband used to earn P3,000 monthly as a truck
driver, supplemented by earnings from plying his tricycle.
[23]
The trial court then fixed the
amount at P180,000, equivalent to his earnings for five years at the monthly rate
of P3,000. On the other hand, Bago Edo testified that his deceased son used to give
him P50 a day.
[24]
The trial court then held that the young Edo's lost earnings should be
computed at P50 a day for five years. The trial court's computations are bereft of legal
basis. This Court has held that an award for loss of earnings should be computed as
follows:
[25]

80 age of victim at reasonable portion of the

2/3 x the time of death x annual net income which
would have been received
as support by heirs
The Court finds P1,000 to be a reasonable estimate of the living and other
incidental expenses to be deducted from the gross income of Tenajeros. Applying the
foregoing formula, his lost earnings should be computed as follows:
=2/3 x [80 37] x [P3,000 - P1,000 x 12]
=2/3 x 43 x P24,000
=P688,000.
n the case of Lito Edo, the records do not show the actual amount of his
income. The amount of P50, as testified to by his father, represented not his daily
income but the daily support he had been giving his family. Hence, his lost earnings
should be computed as follows:
= 2/3 x [80 22] x [P50 x 30 x 12]
= 2/3 x 58 x P18,000
= P 69,600
The trial court also awarded civil indemnity of thirty thousand pesos. n line with
current jurisprudence,
[26]
the civil indemnity should be increased to fifty thousand pesos
(P50,000).
HRFOR, the appeal is hereby DENED and the challenged Joint Decision
is AFFRMED. However, the monetary awards areMODFED as follows: the grant of
moral damages and funeral expenses is DELE%ED for lack of factual basis; to the heirs
of Benigno Tenajeros, appellant is ordered to pay the amounts P688,000 representing
loss of earning capacity and 50,000 as civil indemnity; to the heirs of Lito Edo, the
amount of 69,600 representing loss of earning capacity and P 50,000 as civil
indemnity. Costs against appellant.
SO ORDRD.
Nar;asa, C.J. (Cairman), Rom0ro, M0lo and Fran.is.o, JJ., concur.

[1]
Penned by Judge Carlo H. Lozada.
[2]
Records, p. 27.
[3]
Rollo, p. 7.
[4]
Records of Crim. Case No. 3846, p. 33; and records of Crim. Case No. 3847, p. 22.
[5]
Rollo, pp. 25-26.
[6]
The case was submitted for resolution upon receipt by this Court on February 2, 1996 of the
confirmation of appellant's confinement at the Davao Prison and Penal Farm;Rollo, p. 102.
[7]
Brief for the Plaintiff-Appellee, pp. 1-5; Rollo, pp. 91b-91f.
[8]
Appellant's Brief, filed by the Public Attorney's Office, pp. 4-5; Rollo, pp. 57-58.
[9]
Decision, p. 8; Rollo, p. 24.
[10]
Rollo, p. 54.
[11]
People vs. Dulatre, Jr., 248 SCRA 109, 119-120, September 7, 1995, per Romero, J.
[12]
People vs. Sumbillo, G.R. No. 105292, April 18, 1997, p. 24; People vs. Luayon, 260 SCRA 739, 752,
August 22, 1996; and People vs. Layno, 264 SCRA 558, 575, November 21, 1996.
[13]
People vs. Magana, 259 SCRA 380, 395, July 26, 1996, per Panganiban, J.
[14]
Decision, pp. 6-7; Rollo, pp. 22-23.
[15]
bid., pp. 7-8; Rollo, pp. 23-24.
[16]
People vs. Garcia, 258 SCRA 411, 420, July 5, 1996; People vs. Pano, 257 SCRA 274, 283, June 5,
1996; and People vs. Lapura, 255 SCRA 85, 97, March 15, 1996.
[17]
People vs. Nell, G.R. No. 109660, July 1, 1997, pp. 10-11; People vs. Dansal, G.R. No. 105002, July
17, 1997, pp. 10-11; People vs. Sumbillo, supra, p. 14; People vs. Marollano, G.R. No. 105004, July 24,
1997, pp. 15-16; People vs. Ombrog, G.R. No. 104666, February 12, 1997, pp. 11-12; and People vs.
Cogonon, G.R. No. 94548, October 4, 1996, pp. 13-14.
[18]
People ;s. Sol, G.R. No. 118504, May 7, 1997, pp. 12-13; People ;s. Serzo, G.R. No. 118485, June
20, 1997, p. 22; People ;s. sleta, G.R. No. 114971, November 19, 1996, pp. 11-17; People ;s. Layno,
G.R. No. 110833, November 21, 1996, pp. 19-20; and People ;s. Dinglasan, G.R. No. 101312, January
28, 1997, pp. 23-24.
[19]
People vs. Francisco, 249 SCRA 526, 536, October 25, 1995; People vs. Panganiban, 241 SCRA 91,
102, February 6, 1995; and People vs. Parangan, 231 SCRA 682, 692, April 22, 1994.
[20]
TSN, March 17, 1993, p. 20.
[21]
bid., pp. 14-15.
[22]
Kierulf vs. Court of Appeals, G.R. No. 99301, March 13, 1997, pp. 23-24.
[23]
TSN, March 17, 1993, p. 20.
[24]
bid., p. 15.
[25]
People vs. Marollano, G.R. No. 105004, July 24, 1997, pp. 40-43, per Panganiban, J. See also Negros
Navigation vs. Court of Appeals, G.R. No. 110398, November 7, 1997, per Mendoza, J.
[26]
People vs. Eduardo Caballes, G.R. Nos. 102723-24, June 19, 1997.











1he cask of amonLlllado

THE thousand InjurIes of Fortunato had borne as best could, but when he ventured upon Insult, vowed
revenge. You, who so well know the nature of my soul, wIll not suppose, however, that gave utterance to a
threat. AT LENCTH would be avenged; thIs was a poInt defInItIvely settled but the very defInItIveness
wIth whIch It was resolved precluded the Idea of rIsk. must not only punIsh, but punIsh wIth ImpunIty. A
wrong Is unredressed when retrIbutIon overtakes Its redresser. t Is equally unredressed when the avenger
faIls to make hImself felt as such to hIm who has done the wrong.
t must be understood that neIther by word nor deed had gIven Fortunato cause to doubt my good wIll.
contInued as was my wont, to smIle In hIs face, and he dId not perceIve that my smIle NDW was at the
thought of hIs ImmolatIon.
He had a weak poInt thIs Fortunato although In other regards he was a man to be respected and even
feared. He prIded hImself on hIs connoIsseurshIp In wIne. Few talIans have the true vIrtuoso spIrIt. For the
most part theIr enthusIasm Is adopted to suIt the tIme and opportunIty to practIse Imposture upon the
8rItIsh and AustrIan |LLDNAFES. n paIntIng and gemmary, Fortunato, lIke hIs countrymen , was a quack,
but In the matter of old wInes he was sIncere. n thIs respect dId not dIffer from hIm materIally; was
skIlful In the talIan vIntages myself, and bought largely whenever could.
t was about dusk, one evenIng durIng the supreme madness of the carnIval season, that encountered my
frIend. He accosted me wIth excessIve warmth, for he had been drInkIng much. The man wore motley. He
had on a tIghtfIttIng partIstrIped dress and hIs head was surmounted by the conIcal cap and bells. was so
pleased to see hIm, that thought should never have done wrIngIng hIs hand.
saId to hIm |y dear Fortunato, you are luckIly met. How remarkably well you are lookIng today! 8ut
have receIved a pIpe of what passes for AmontIllado, and have my doubts.
How: saId he, AmontIllado: A pIpe: mpossIble : And In the mIddle of the carnIval:
have my doubts, replIed; and was sIlly enough to pay the full AmontIllado prIce wIthout consultIng you
In the matter. You were not to be found, and was fearful of losIng a bargaIn.
AmontIllado!
have my doubts.
AmontIllado!
And must satIsfy them.
AmontIllado!
As you are engaged, am on my way to LuchesI. f any one has a crItIcal turn, It Is he. He wIll tell me
LuchesI cannot tell AmontIllado from Sherry.
And yet some fools wIll have It that hIs taste Is a match for your own.
Come let us go.
WhIther:
To your vaults.
|y frIend, no; wIll not Impose upon your good nature. perceIve you have an engagement LuchesI
have no engagement; come.
|y frIend, no. t Is not the engagement, but the severe cold wIth whIch perceIve you are afflIcted . The
vaults are Insufferably damp. They are encrusted wIth nItre.
Let us go, nevertheless. The cold Is merely nothIng. AmontIllado! You have been Imposed upon; and as for
LuchesI, he cannot dIstInguIsh Sherry from AmontIllado.
Thus speakIng, Fortunato possessed hImself of my arm. PuttIng on a mask of black sIlk and drawIng a
roquelaIre closely about my person, suffered hIm to hurry me to my palazzo.
There were no attendants at home; they had absconded to make merry In honour of the tIme. had told
them that should not return untIl the mornIng and had gIven them explIcIt orders not to stIr from the
house. These orders were suffIcIent, well knew, to Insure theIr ImmedIate dIsappearance , one and all, as
soon as my back was turned.
took from theIr sconces two flambeaux, and gIvIng one to Fortunato bowed hIm through several suItes of
rooms to the archway that led Into the vaults. passed down a long and wIndIng staIrcase, requestIng hIm to
be cautIous as he followed. We came at length to the foot of the descent, and stood together on the damp
ground of the catacombs of the |ontresors.
The gaIt of my frIend was unsteady, and the bells upon hIs cap jIngled as he strode.
The pIpe, saId he.
t Is farther on, saId ; but observe the whIte webwork whIch gleams from these cavern walls.
He turned towards me and looked Into my eyes wIth two fIlmy orbs that dIstIlled the rheum of IntoxIcatIon .
NItre: he asked, at length
NItre, replIed. How long have you had that cough!
Ugh! ugh! ugh! ugh! ugh! ugh! ugh! ugh! ugh! ugh! ugh! ugh! ugh! ugh! ugh!
|y poor frIend found It ImpossIble to reply for many mInutes.
t Is nothIng, he saId, at last.
Come, saId, wIth decIsIon, we wIll go back; your health Is precIous. You are rIch, respected, admIred,
beloved; you are happy as once was. You are a man to be mIssed. For me It Is no matter. We wIll go back;
you wIll be Ill and cannot be responsIble. 8esIdes, there Is LuchesI
Enough, he saId; the cough Is a mere nothIng; It wIll not kIll me. shall not dIe of a cough.
True true, replIed; and, Indeed, had no IntentIon of alarmIng you unnecessarIly but you should use
all proper cautIon. A draught of thIs |edoc wIll defend us from the damps.
Here knocked off the neck of a bottle whIch drew from a long row of Its fellows that lay upon the mould.
0rInk, saId, presentIng hIm the wIne.
He raIsed It to hIs lIps wIth a leer. He paused and nodded to me famIlIarly, whIle hIs bells jIngled.
drInk, he saId, to the burIed that repose around us.
And to your long lIfe.
He agaIn took my arm and we proceeded.
These vaults, he saId, are extensIve.
The |ontresors, replIed, were a great numerous famIly.
forget your arms.
A huge human foot d'or, In a fIeld azure; the foot crushes a serpent rampant whose fangs are Imbedded In
the heel.
And the motto:
Nemo me Impune lacessIt.
Cood! he saId.
The wIne sparkled In hIs eyes and the bells jIngled. |y own fancy grew warm wIth the |edoc. We had passed
through walls of pIled bones, wIth casks and puncheons IntermInglIng, Into the Inmost recesses of the
catacombs. paused agaIn, and thIs tIme made bold to seIze Fortunato by an arm above the elbow.
The nItre! saId: see It Increases. t hangs lIke moss upon the vaults. We are below the rIver's bed. The
drops of moIsture trIckle among the bones. Come, we wIll go back ere It Is too late. Your cough
t Is nothIng he saId; let us go on. 8ut fIrst, another draught of the |edoc.
broke and reached hIm a flagon of 0e Crave. He emptIed It at a breath. HIs eyes flashed wIth a fIerce lIght.
He laughed and threw the bottle upwards wIth a gestIculatIon dId not understand.
looked at hIm In surprIse. He repeated the movement a grotesque one.
You do not comprehend: he saId.
Not , replIed.
Then you are not of the brotherhood.
How:
You are not of the masons.
Yes, yes, saId yes! yes.
You: mpossIble! A mason:
A mason, replIed.
A sIgn, he saId.
t Is thIs, answered, producIng a trowel from beneath the folds of my roquelaIre.
You jest, he exclaImed, recoIlIng a few paces. 8ut let us proceed to the AmontIllado.
8e It so, saId, replacIng the tool beneath the cloak, and agaIn offerIng hIm my arm. He leaned upon It
heavIly. We contInued our route In search of the AmontIllado. We passed through a range of low arches,
descended, passed on, and descendIng agaIn, arrIved at a deep crypt, In whIch the foulness of the aIr caused
our flambeaux rather to glow than flame.
At the most remote end of the crypt there appeared another less spacIous. ts walls had been lIned wIth
human remaIns pIled to the vault overhead , In the fashIon of the great catacombs of ParIs. Three sIdes of
thIs InterIor crypt were stIll ornamented In thIs manner. From the fourth the bones had been thrown down,
and lay promIscuously upon the earth, formIng at one poInt a mound of some sIze. WIthIn the wall thus
exposed by the dIsplacIng of the bones, we perceIved a stIll InterIor recess, In depth about four feet, In
wIdth three, In heIght sIx or seven. t seemed to have been constructed for no especIal use In Itself, but
formed merely the Interval between two of the colossal supports of the roof of the catacombs, and was
backed by one of theIr cIrcumscrIbIng walls of solId granIte.
t was In vaIn that Fortunato, uplIftIng hIs dull torch, endeavoured to pry Into the depths of the recess. ts
termInatIon the feeble lIght dId not enable us to see.
Proceed, saId; hereIn Is the AmontIllado. As for LuchesI
He Is an Ignoramus, Interrupted my frIend, as he stepped unsteadIly forward, whIle followed ImmedIately
at hIs heels. n an Instant he had reached the extremIty of the nIche, and fIndIng hIs progress arrested by the
rock, stood stupIdly bewIldered . A moment more and had fettered hIm to the granIte. n Its surface were
two Iron staples, dIstant from each other about two feet, horIzontally. From one of these depended a short
chaIn. from the other a padlock. ThrowIng the lInks about hIs waIst, It was but the work of a few seconds to
secure It. He was too much astounded to resIst . WIthdrawIng the key stepped back from the recess.
Pass your hand, saId, over the wall; you cannot help feelIng the nItre. ndeed It Is 7EFY damp. Dnce more
let me |PLDFE you to return. No: Then must posItIvely leave you. 8ut must fIrst render you all the lIttle
attentIons In my power.
The AmontIllado! ejaculated my frIend, not yet recovered from hIs astonIshment.
True, replIed; the AmontIllado.
As saId these words busIed myself among the pIle of bones of whIch have before spoken. ThrowIng them
asIde, soon uncovered a quantIty of buIldIng stone and mortar. WIth these materIals and wIth the aId of my
trowel, began vIgorously to wall up the entrance of the nIche.
had scarcely laId the fIrst tIer of my masonry when dIscovered that the IntoxIcatIon of Fortunato had In a
great measure worn off. The earlIest IndIcatIon had of thIs was a low moanIng cry from the depth of the
recess. t was NDT the cry of a drunken man. There was then a long and obstInate sIlence. laId the second
tIer, and the thIrd, and the fourth; and then heard the furIous vIbratIons of the chaIn. The noIse lasted for
several mInutes, durIng whIch, that mIght hearken to It wIth the more satIsfactIon, ceased my labours and
sat down upon the bones. When at last the clankIng subsIded , resumed the trowel, and fInIshed wIthout
InterruptIon the fIfth, the sIxth, and the seventh tIer. The wall was now nearly upon a level wIth my breast.
agaIn paused, and holdIng the flambeaux over the masonwork, threw a few feeble rays upon the fIgure
wIthIn.
A successIon of loud and shrIll screams, burstIng suddenly from the throat of the chaIned form, seemed to
thrust me vIolently back. For a brIef moment hesItated trembled. UnsheathIng my rapIer, began to
grope wIth It about the recess; but the thought of an Instant reassured me. placed my hand upon the solId
fabrIc of the catacombs , and felt satIsfIed. reapproached the wall. replIed to the yells of hIm who
clamoured. reechoed aIded surpassed them In volume and In strength. dId thIs, and the clamourer
grew stIll.
t was now mIdnIght, and my task was drawIng to a close. had completed the eIghth, the nInth, and the
tenth tIer. had fInIshed a portIon of the last and the eleventh; there remaIned but a sIngle stone to be
fItted and plastered In. struggled wIth Its weIght; placed It partIally In Its destIned posItIon. 8ut now
there came from out the nIche a low laugh that erected the haIrs upon my head. t was succeeded by a sad
voIce, whIch had dIffIculty In recognIsIng as that of the noble Fortunato. The voIce saId
Ha! ha! ha! he! he! a very good joke Indeed an excellent jest. We wIll have many a rIch laugh about
It at the palazzo he! he! he! over our wIne he! he! he!
The AmontIllado! saId.
He! he! he! he! he! he! yes, the AmontIllado . 8ut Is It not gettIng late: WIll not they be awaItIng us at
the palazzo, the Lady Fortunato and the rest: Let us be gone.
Yes, saId let us be gone.
FDF THE LD7E DF CD0, |DNTFESDF!
Yes, saId, for the love of Cod!
8ut to these words hearkened In vaIn for a reply. grew ImpatIent. called aloud
Fortunato!
No answer. called agaIn
Fortunato!
No answer stIll. thrust a torch through the remaInIng aperture and let It fall wIthIn. There came forth In
return only a jInglIng of the bells. |y heart grew sIck on account of the dampness of the catacombs.
hastened to make an end of my labour. forced the last stone Into Its posItIon; plastered It up. AgaInst the
new masonry reerected the old rampart of bones. For the half of a century no mortal has dIsturbed them.
n pace requIescat!