Criminal Law Cases 2

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-4445 February 28, 1955 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and JACINTO ADRIATICO, defendants-appellants. Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants. Prospero C. Sanidad and Claro M. Recto for defendant. Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles and Martiniano P. Vivo for appellee. REYES, J.B.L., J.: This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico from the judgment of the Court of First Instance of Abra (Criminal Case No. 70) convicting them of murder for the execution of Arsenio Borjal in the evening of April 18, 1945, in the town of La Paz , Province of Abra. Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued to serve as Mayor during the Japanese occupation, until March 10, 1943, when he moved to Bangued because of an attempt upon his life by unknown persons. On December 18, 1944, appellant Manuel Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold, regimental commander of the 15th Infantry, Philippine Army, operating as a guerrilla unit in the province of Abra. Simultaneously with his appointment as Military Mayor, Beronilla received copy of a memorandum issued by Lt. Col. Arnold to all Military Mayors in Northern Luzon, authorizing them "to appoint a jury of 12 bolomen to try persons accused of treason, espionage, or the aiding and abetting (of ) the enemy" (Exhibit 9). He also received from the Headquarters of the 15th Infantry a list of all puppet government officials of the province of Abra (which included Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all Military Mayors to investigate said persons and gather against them complaints from people of the municipality for collaboration with the enemy (Exhibit 12-a). Sometime in March, 1945, while the operations for the liberation of the province of Abra were in progress, Arsenio Borjal returned to La Paz with his family in order to escape the bombing of Bangued. Beronilla, pursuant to his instructions, placed Borjal under custody and asked the residents of La Paz to file complaints against him. In no time, charges of espionage, aiding the enemy, and abuse of authority were filed against Borjal; a 12-man jury was appointed by Beronilla, composed of Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos, Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon Labuguen, Felix Murphy, Pedro Turqueza, and Delfin Labuguen as members; while Felix Alverne and Juan Balmaceda were named prosecutors, Policarpio Paculdo as clerk of the jury, and Lino Inovermo as counsel for the accused. Later, Atty. Jovito Barreras voluntarily appeared and served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for several days upon instructions of Headquarters, 15th Infantry. The trial lasted 19 days up to April 10, 1945; the jury found Borjal guilty on all accounts and imposed upon him instruction from his superiors. Mayor Beronilla forwarded the records of the case to the Headquarters of the 15th Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the following instructions: HEADQUARTERS 3RD MILITARY DISTRICT 15TH INFANTRY, USAFIP In the Field 16 April 1945 Msg. No. 337 Subject: Arsenio Borjal, Charges Against To: Military Mayor of La Paz, Abra. 1. Returned herewith are the papers on the case of Arsenio Borjal. 2. This is a matter best handled by your government and whatever disposition you make of the case is hereby approved.

(Sgd.) R. H. ARNOLD Lieut.-Colonel, 15th Inf., PA Commanding Received April 18, 1945, 10:35 a.m. (Sgd.) MANUEL BERONILLA Military Mayor, La Paz, Abra (Exhibit 8, 8-a) and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal. Jacinto Adriatico acted as executioner and Antonio Palope as grave digger. Father Luding of the Roman Catholic Church was asked to administer the last confession to the prisoner, while Father Filipino Velasco of the Aglipayan Church performed the last rites over Borjal's remains. Immediately after the execution, Beronilla reported the matter to Col. Arnold who in reply to Beronilla's report, sent him the following message: HEADQUARTERS 3RD MILITARY DISTRICT 15TH INFANTRY, USAFIP In the Field 22 April 1945 Msg. No. 398 Subject: Report and information Re Borjal case To: Military Mayor Beronilla 1. Received your letter dated 18 April 1945, subject, above. 2. My request that you withhold action in this case was only dictated because of a query from Higher Headquarters regarding same. Actually, I believe there was no doubt as to the treasonable acts of the accused Arsenio Borjal and I know that your trial was absolutely impartial and fair. Consequently, I Can only compliment you for your impartial independent way of handling the whole case. (Sgd.) R. H. ARNOLD Lieut.-Colonel, 15th Inf., PA Commanding Received April 26, 1947 7:00 a.m. (Sgd.) MANUEL BERONILLA Military Mayor, La Paz, Abra (Exhibit 21, 21-a) Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as Clerk of the jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano Afos, Andres Afos, Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico as executioner, Severo Afos as grave digger, and Father Filipino Velasco as an alleged conspirator, were indicted in the Court of First Instance of Abra for murder, for allegedly conspiring and confederating in the execution of Arsenio Borjal. Soon thereafter, the late President Manuel A. Roxas issued Executive Proclamation No. 8, granting amnesty to all persons who committed acts penalized under the Revised Penal Code in furtherance of the resistance to the enemy against persons aiding in the war efforts of the enemy. Defendant Jesus Labuguen, then a master sergeant in the Philippine Army, applied for and was granted amnesty by the Amnesty Commission, Armed Forces of the Philippines (Records, pp. 618-20). The rest of the defendant filed their application for amnesty with the Second Guerrilla Amnesty Commission, who denied their application on the ground that the crime had been inspired by purely personal motives, and remanded the case to the Court of First Instance of Abra for trial on the merits. Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been granted amnesty by the Amnesty Commission of the Armed Forces of the Philippines, was ordered provisionally dismissed: defendant Juan Balmaceda was discharged from the information so that he might be utilized as state witness, although actually he was not called to testify; while the case against defendants Antonio Palope (the grave digger) and Demetrio Afos( a boloman) was dismissed for lack of sufficient evidence. Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below rendered judgment, acquitting the members of the jury and the grave digger Antonio Palope on the ground that they did not

participated in the killing of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne, Severo Afos, and Lauro Parado upon insufficiency of evidence to establish their participation in the crime; but convicting defendants Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and co-principals of the crime of murder, and sentencing them to suffer imprisonment of from 17 years, 4 months and 1 day ofreclusion temporal to reclusion perpetua, to indemnify the heirs of Arsenio Borjal jointly and severally in the amount of P4,000 with subsidiary imprisonment in case of insolvency, and each to pay one fourth of the costs. In convicting said defendants the Court a quo found that while the crime committed by them fell within the provisions of the Amnesty Proclamation, they were not entitled to the benefits thereof because the crime was committed after the expiration of the time limit fixed by the amnesty proclamation;: i.e., that the deceased Arsenio Borjal was executed after the liberation of La Paz, Abra. In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco and Adriatico appealed to this Court. The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of the late Arsenio Borjal were done pursuant to express orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a), instructing all military mayors under its jurisdiction to gather evidence against puppet officials and to appoint juries of at least 12 bolomen to try the accused and find them guilty by two thirds vote. It is to be noted that Arsenio Borjal was specifically named in the list of civilian officials to be prosecuted (Exhibit 12-b). In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was done in accordance with instructions of superior military authorities, altho it point to irregularities that were due more to ignorance of legal processes than personal animosity against Borjal. The state, however, predicates its case principally on the existence of the radiogram Exhibit H from Col. Volckmann, overall area commander, to Lt. Col. Arnold, specifically calling attention to the illegality of Borjal's conviction and sentence, and which the prosecution claims was known to the accused Beronilla. Said message is as follows: "Message: VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON ONE ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE HANGED PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN" (EXH. H) The crucial question thus becomes whether or not this message, originally sent to Arnold's quarters in San Esteban, Ilocos Sur, was relayed by the latter to appellant Beronilla in La Paz, Abra, on the morning of April 18, 1945, together with the package of records of Borjal's trial that was admittedly returned to and received by Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-a). Obviously, if the Volckmann message was known to Beronilla, his ordering the execution of Borjal on the night of April 18, 1945 can not be justified. We have carefully examined the evidence on this important issue, and find no satisfactory proof that Beronilla did actually receive the radiogram Exhibit H or any copy thereof. The accused roundly denied it. The messenger, or "runner", Pedro Molina could not state what papers were enclosed in the package he delivered to Beronilla on that morning in question, nor could Francisco Bayquen (or Bayken), who claimed to have been present at the delivery of the message, state the contents thereof. The only witness who asserted that Beronilla received and read the Volckmann message, Exhibit H, was Rafael Balmaceda, a relative of Borjal, who claimed to have been, as Beronilla's bodyguard, present at the receipt of the message and to have read it over Beronilla's shoulder. This testimony, however, can not be accorded credence, for the reason that in the affidavit executed by this witness before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention of the reading, or even the receipt, of the message. In the affidavit, he stated: Q. In your capacity as policeman, do you know of any usual occurrence that transpired in La Paz, Abra? — A. Yes, sir. Q. Will you state what is the event? — A. On April 17, 1945, I was assigned as guard at the Presidencia where Mayor Arsenio Borjal is confined. On the 18th of April, 1945, six bolomen came to me while I was on duty as guard, that Mayor Borjal should be tied, on orders of Mayor Beronilla, Mayor Borjal wanted to know the reason why he would be tied, as he had not yet learned of the decision of the jury against him. Mayor Borjal wrote a note to Mayor Beronilla, asking the reason for his being ordered to be tied. I personally delivered the note of Borjal to Mayor Beronilla. Mayor Beronilla did not answer the note, but instead told me that I should

tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I returned to the Presidencia, and Mayor Borjal was tied, as that was the ordered of Mayor Beronilla. The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla when the message arrived, otherwise Beronilla would have given him his orders direct, as he (Balmaceda) testified later at the trial. Moreover, it is difficult to believe that having learned of the contents of the Volckmann message, Balmaceda should not have relayed it to Borjal , or to some member of the latter's family, considering that they were relatives. In addition to Balmaceda was contradicted by Bayken, another prosecution witness, as to the hatching of the alleged conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants decided to kill Borjal in the early evening of April 18, while Bayken testified that the agreement was made about ten o'clock in the morning, shortly after the accused had denied Borjal's petition to be allowed to hear mass. Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann message. Had he executed Borjal in violation of superior orders, he would not have dared to report it to Arnold's headquarters on the very same day, April 18th, 1945, as he did (Exhibit 20), half an hour after the execution. And what is even more important, if Borjal was executed contrary to instructions, how could Lt. Colonel Arnold on April 21, 1945, write in reply (Exhibit 21, 21-a) "I can only compliment you for your impartial but independent way of handling the whole case" instead of berating Beronilla and ordering his court martial for disobedience? Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed to transmit the Volckmann message to Beronilla. And this being so, the charge of criminal conspiracy to do away with Borjal must be rejected, because the accused had no need to conspire against a man who was, to their knowledge, duly sentenced to death. The state claims that the appellants held grudges against the late Borjal. Even so, it has been already decided that the concurrence of personal hatred and collaboration with the enemy as motives for a liquidation does not operate to exclude the case from the benefits of the Amnesty claimed by appellants, since then "it may not be held that the manslaughter stemmed from purely personal motives" (People vs. Barrioquinto,* G. R. Nos. L2011 and 2267, June 30, 1951). Actually, the conduct of the appellants does not dispose that these appellants were impelled by malice (dolo). The arrest and trial of Borjal were made upon express orders of the higher command; the appellants allowed Borjal to be defended by counsel, one of them (attorney Jovito Barreras) chosen by Borjal's sister; the trial lasted nineteen (19) days; it was suspended when doubts arose about its legality, and it was not resumed until headquarters (then in Langangilang, Abra) authorized its resumption and sent an observer (Esteban Cabanos, of the S-5) to the proceedings, and whose suggestions on procedure were followed; and when the verdict of guilty was rendered and death sentence imposed, the records were sent to Arnold's headquarters for review, and Borjal was not punished until the records were returned eight days later with the statement of Arnold that "whatever disposition you make of the case is hereby approved" (Exhibit 8), which on its face was an assent to the verdict and the sentence. The lower Court, after finding that the late Arsenio Borjal had really committed treasonable acts, (causing soldiers and civilians to be tortured, and hidden American officers to be captured by the Japanese) expressly declared that "the Court is convinced that it was not for political or personal reason that the accused decided to kill Arsenio Borjal" (Decision, p. 9; Record, p. 727). It appearing that the charge is the heinous crime of murder, and that the accused-appellants acted upon orders, of a superior officers that they, as military subordinates, could not question, and obeyed in good faith, without being aware of their illegality, without any fault or negligence on their part, we can not say that criminal intent has been established (U. S. vs. Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non facit reum nisi mens si rea. To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequence, as, in law, is equivalent to criminal intent. The maxim is, actus non facit reum, nisi mens rea-a crime is not committed if the minds of the person performing the act complained of be innocent. (U. S. vs. Catolico, 18 Phil., 507). But even assuming that the accused-appellant did commit crime with they are charged, the Court below should not have denied their claim to the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on the ground that the slaying of Arsenio Borjal took place after actual liberation of the area from enemy control and occupation. The evidence on record regarding the date of liberation of La Paz, Abra, is contradictory. The Military Amnesty Commission that decided the case of one of the original accused Jesus Labuguen, held that La Paz, Abra, was liberated on July 1, 1945, according to its records; and this finding was

accepted by Judge Letargo when he dismissed the case against said accused on March 15, 1949. On the other hand, Judge Bocar and Hilario, who subsequently took cognizance of the case, relied on Department Order No. 25, of the Department of the Interior, dated August 12, 1948, setting the liberation of the Province of Abra on April 4, 1945, fifteen days before Borjal was slain. The two dates are not strictly contradictory; but given the benefit of the Presidential directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946) that "any reasonable doubt as to whether a given case falls within the (amnesty) proclamation shall be resolved in favor of the accused" (42 Off. Gaz., 2360), as was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093. For the reasons stated, the judgment appealed from is reversed and the appellants are acquitted, with costs de oficio. EN BANC [G.R. Nos. 150542-87. February 3, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. OLIVER AREVALO JR. y ABANILLA, and HERMINIGILDO ORGANISTA y ANDRES, appellants. DECISION PANGANIBAN, J.: Appellant is accused of multiple rape “by two or more persons,” for which Article 266-B of the Revised Penal Code prescribes the penalty of “reclusion perpetua to death.” Since the Information did not allege any aggravating circumstance, the proper penalty to be imposed is reclusion perpetua, not death. The Case For automatic review before this Court is the October 26, 2001 Decision[1] of the Regional Trial Court (RTC) of Makati City (Branch 62) in Criminal Case Nos. 01-419 to 01-464, finding Oliver Arevalo Jr. and Herminigildo Organista guilty beyond reasonable doubt of 42 and 32 counts of rape, respectively. The decretal portion of the Decision is worded as follows: “WHEREFORE, premises considered, the Court finds accused Oliver A. Arevalo in Criminal Cases Nos. 01-419 to 01-423, 01-425 to 01-428, 01-430 to 01-441, 01-442 to 01-446, 01-448 to 01-451, 01-453 to 01-464, and accused Herminigildo A. Organista in Criminal Cases Nos. 01-419 to 01-422, 01-442 to 01-445, and 01-441 and 01-464 GUILTY beyond reasonable doubt of the crime of rape defined under Art. 266-A, par. 1(a) in relation to Art. 266-B, par. 2 of the Revised Penal Code, as amended by Republic Act 8353, and imposes upon them the maximum penalty of death in each case. Each of the two accused is hereby ordered to pay complainants Regina G. Acu[ñ]a and Ruth F. Acosta P75,000.00 each as civil indemnity. “Considering the outrage, humiliation, distress and trauma suffered by the two complainants from the dastardly act of the two accused, the Court orders the accused Arevalo to pay Regina Acu[ñ]a and Ruth Acosta P200,000.00 each and accused Organista to pay the two complainants P50,000.00 each as moral damages pursuant to Article 2219(3) in relation to Article 2217 of the Civil Code. “Accused Arevalo is further ordered to pay exemplary damages in the amount of P100,000.00 to each of the two complainants to deter others with perverse tendencies or aberrant sexual behaviors from committing the act. “For failure of the prosecution to establish the guilt beyond reasonable doubt of accused Oliver A. Arevalo in Criminal Cases Nos. 01-424 and 01-447, and 01-429 and 01-452, and accused Herminigildo A. Organista in Criminal Cases Nos. 01-423 to 01-440 and 01-446 to 01-463, they are hereby ACQUITTED in said cases.”[2] A total of forty-six (46) separate Informations[3] were filed against appellants. For the rape of Regina Acuña, they were charged as follows: Criminal Case No. 01-419 “That on or about the 23rd day of January, 2001, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with John Does and mutually helping and aiding with one another, by means of force and intimidation, did then and there willfully, unlawfully [and] feloniously have carnal knowledge of the complainant REGINA ACU[Ñ]A y GUTIERREZ, without her consent and against her will.” [4] The Informations[5] in Criminal Case Nos. 01-420 to 01-441 contain allegations identical to the above Information, differing only with respect to the dates of the commission of the alleged rapes. For the rape of Ruth Acosta, appellants were charged as follows: Criminal Case No. 01-442

“That on or about the 23rd day of January, 2001, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with John Does and mutually helping and aiding with one another, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant RUTH ACOSTA y FILLAS, without her consent and against her will.” [6] Again, the Informations[7] in Criminal Case Nos. 01-443 to 01-464 contain allegations identical to the above Information, differing only with respect to the dates of the commission of the alleged rapes. Upon their arraignment on March 19, 2001,[8] appellants, with the assistance of their counsel,[9] pleaded not guilty to all charges. After trial in due course, the court a quo rendered the assailed Decision. The Facts Version of the Prosecution In its Brief, the Office of the Solicitor General (OSG) presents the prosecution’s version of the facts in the following manner: “Regina G. Acu[ñ]a was a jobless 22-year old married woman residing in Payatas, Quezon City. On January 23, 2001, between three o’clock and four o’clock in the afternoon, she was walking down Manggahan St. in Fairview, Quezon City, looking for a job. As she went along, appellant Arevalo, a stranger, approached and asked her what her problem was. She replied that she was looking for a job. Appellant Arevalo told Regina that he could get her a job as saleslady. Regina said that if the place of work was far, she was not interested. Appellant Arevalo told her not to worry, as the workplace was not far, and that nothing wrong would happen to her. Regina did not believe him. “While they were talking, a car stopped in front of them. Suddenly, appellant Arevalo placed a white handkerchief on Regina’s face and boarded her on the vehicle. Regina could not remember what happened next. She could not even recall whether she slept or lost consciousness. All she knew was that when she woke up, she was already lying on a bed inside a room. It was nighttime. “In the room, Regina saw appellant Arevalo and a fat lady whom he identified as Rose, his ‘atsay’ or helper. Regina later learned that Rose’s real name was Ruth Acosta. Ruth looked like she was in a state of shock, or, ‘tulala’. “Appellant Arevalo left momentarily. When he came back, he forcibly took off Regina’s clothes. Regina asked him what he was doing, and he replied that what he would do would only take a while. Appellant Arevalo then undressed himself. When Regina saw this, she pleaded with him to take pity on her and to release her, as her husband may have been worrying for her already. Appellant Arevalo repeated that it would not take long. Regina shouted for help. But nobody heard her, as appellant Arevalo had closed the door and windows. While she was shouting, appellant Arevalo raised her feet and forcibly inserted his penis into her vagina. “As Regina lay on the bed, she kept on shouting and resisting appellant Arevalo’s sexual assault. At one point, she was able to free herself from him and run. But he caught up with her, grabbed her hair, banged her head against the wall and threw her back to the bed, where he continued to ravish her. Rose, or Ruth Acosta, was looking on helplessly, crying while Regina was being violated. “From that night onward until February 14, 2001, Regina would be wearing nothing almost all the time, for she would be ravished for what seemed like ‘almost every day and every hour.’ “On January 24, 2001, an unidentified man raped Regina in the same room. Before raping her[,] however, the man paid appellant Arevalo a sum of money. Regina could not see the man’s face, as appellant Arevalo had blindfolded her. But she heard the man tell appellant Arevalo, ‘Pare, itong bayad.’ “The unidentified man made Regina take different sexual positions even as she resisted. At one time, he inserted his penis into her anus; at another, he inserted his finger and later, his penis, into her vagina. Thereafter, appellant Arevalo made her eat the man’s penis. Regina struggled hard to free herself from the man’s clutches, but she was no match for him. “When the man had left, appellant Arevalo took off Regina’s blindfold. Regina saw him counting the money the man had paid him. Thereafter, appellant Arevalo ravished Regina himself. When he was finished, appellant Arevalo again sold Regina to another unidentified man, who proceeded to have sex with her. By this time, Regina was no longer shouting for help because no one could hear or help her anyway. “On January 25, 2001, appellant Arevalo again blindfolded Regina and let other men ravish her for a fee while he stood guard outside the door of his house. The first man who had sex with Regina inserted his penis into her vagina while he was on top of her, covering her mouth with his hand because she was noisy. Regina kept shouting for help, but nobody heard her. So she just cried and cried and threw punches at the man, but he

would not stop ravishing her. To keep her from resisting, the man pointed a knife at her neck and threatened to kill her. When the man was through, another man followed. By then, Regina was no longer putting up any resistance because she was ‘afraid and at the same time, already very weak.’ Around six (6) men raped her in succession that day, but she could only recognize appellant Arevalo among them. “On January 26, 2001, appellant Arevalo forced the two (2) women to take drugs. Appellant Arevalo made Regina sniff the smoke of a powdered substance or ‘tawas’ wrapped in a foil. When she refused, he threatened to slash her neck. He also made the girls take tablets which Regina later discovered to be birth control pills. “Thereafter, appellant Arevalo inserted his penis into Regina’s vagina. While he was raping her, he ran the point of his knife up and down her body, from her breasts to her vagina. Regina was very afraid. “After appellant Arevalo had reached a climax, he blindfolded Ruth and made her have sex with many other men. “On January 27, 2001, appellant Arevalo ravished Regina again in a similar manner as the previous days. By then, Regina was very weak. “On many occasions during her first five (5) days in captivity, and even thereafter, Regina tried to escape, but appellant Arevalo would always catch up with her and hurt her. He would tie up her hands and hang her while having sex with her. Whenever he left the house, he would lock it from the outside to prevent Regina and Ruth from leaving. Although appellant Arevalo would buy the girls food, Regina oftentimes refused to eat, because she knew that the food was bought with the money appellant Arevalo earned from peddling their bodies. “On January 28, 2001, appellant Arevalo brought Regina to another place. She did not know where the place was because she was dizzy with the drugs he had made her use. “On January 29, 2001, appellant Arevalo drugged Regina again. Thereafter, he had sexual intercourse with her. Regina begged him to let her go home because her husband was waiting for her, but her plea fell on deaf ears. Many other men ravished Regina that day. “On January 30, 2001, appellant Arevalo forced Regina to make a choice between marijuana and ‘tawas.’ When Regina refused to choose, he threatened to slash her throat. Afraid, Regina finally chose ‘tawas.’ Appellant Arevalo told her to take it so that she would not feel the pain in her vagina, which was already bleeding. Thereafter, appellant Arevalo raped her. “On January 31, 2001, appellant Arevalo had forcible sexual intercourse with Regina again. Thereafter, not content with putting his fingers into her private part, appellant Arevalo inserted a lighted cigarette inside. Although Regina was taking the drug appellant Arevalo forced her to use, she still felt the pain in her vagina caused by the hot cigarette. “On February 1, 2001, after forcibly copulating with Regina yet another time, appellant Arevalo sold her again to other men. “On the night of February 2, 2001, appellant Arevalo again moved Regina to another place which she could not remember, because she was dizzy then. Although there were other passengers on the public utility jeepney that they took on the way to the place, Regina could not ask for help, as appellant Arevalo was poking a knife at her back inside her t-shirt the whole time and had earlier warned her that he would kill her if she shouted. They arrived at a concrete house which had a vulcanizing shop at the ground floor. When they were inside the building, appellant Arevalo blindfolded Regina and hanged her by the hands. Regina heard women’s voices, but she was not sure whether they were real or came from the television set in the room. That night, Regina was again raped by unidentified persons. Appellant Arevalo and Regina left the place at half past midnight. “From February 3 up to February 5, 2001, appellant Arevalo continued to subject [her] to his bestial designs. Each time, he succeeded in inserting his penis into her vagina and in consummating the intercourse. Regina no longer put up any resistance because her body had been rendered very weak from her days of endless ravishment. “On February 6, 2001, Regina fell ill with fever, and Ruth took care of her. Regina’s illness did not stop appellant Arevalo from molesting her that day. Before she was raped, Regina begged appellant Arevalo to allow her to call her parents and even offered him any sum of money as he desired, but he slapped her, saying that he needed her body and not her money. He also told Ruth to slap her, and so Ruth slapped her. “On February 7, 2001, Regina could only beg appellant Arevalo to take pity on her. She was chilling and she tried to push him away, to no avail, for once again, appellant Arevalo successfully penetrated her private organ.

“On February 8, 2001, Regina discovered that she had a venereal disease, or ‘tulo.’ But this did not spare her from appellant Arevalo’s carnal greed. She stopped resisting him, for her body had long been worn down by ceaseless abuse. “Regina’s ordeal continued from February 9 up to February 14, 2001. Every single day, appellant Arevalo would ravish her without letup. “On February 14, 2001, appellant Organista, a friend and neighbor of appellant Arevalo, also had a taste of Regina’s flesh. After appellant Arevalo stripped her naked, appellant Organista made his move. Regina pushed him away as he approached her, but appellant Arevalo teased him, saying, ‘kaya mo yan pre.’ Appellant Organista proceeded to insert his penis into Regina’s vagina while she lay down on the floor, with appellant Arevalo looking on. After appellant Organista was finished, appellant Arevalo took over in ravishing Regina and succeeded in penetrating her as well. “Ruth F. Acosta, a native of Bukidnon, left her family for Manila when she was about eighteen (18) years old. Her highest educational attainment was the third grade of primary school. Unable to find any relatives in Manila, she ended up loitering and sleeping on the streets of Luneta. “On January 23, 2001, about a year she had left the province, Ruth Acosta met appellant Oliver Arevalo at the Luneta park. It was around six o’clock in the evening. Appellant Arevalo told Ruth that he could help her find a job and invited her to go with him. Ruth went with appellant Arevalo and they boarded a jeepney. They arrived at (what turned out to be) appellant Arevalo’s house in Pembo, Makati, a few hours later. “Upon entering the house, appellant Arevalo pushed Ruth Acosta to the bed and stripped off her clothes. Thereafter, appellant Arevalo removed his own clothes and forcibly inserted his penis into her vagina. Ruth could not recall what happened immediately thereafter, except that she felt pain in her private part. She was also bleeding badly, for she had just lost her virginity to her assailant. “That same evening, after she was ravished by appellant Arevalo, Ruth was raped by appellant Arevalo’s friend and neighbor, herein appellant Organista, in the same room. “The following day, January 24, 2001, appellant Arevalo raped Ruth Acosta again. He took off his clothes, undressed Ruth, and inserted his penis into her vagina, causing her to feel pain. While she was being raped, Ruth attempted to resist appellant Arevalo by ‘pulling backwards her two hands with clenched fists’, but her resistance was futile. “On January 25, 2001, appellant Arevalo forcibly had sexual intercourse with Ruth again on his bed. He inserted his organ into her private part, and once more, she felt pain. Many other men raped Ruth in the same room that night after paying a fee to appellant Arevalo, but she could not identify said men because she was blindfolded by him. She recognized appellant Organista, though, as one of those who raped her while she was blindfolded because she was able to hold his beard while he was ravishing her and she was already familiar with his face. “On January 26, 2001, appellants Organista and Arevalo took turns in raping Ruth. Appellant Organista removed Ruth’s clothes, after which, appellant Arevalo had forcible sexual intercourse with her. Try as she might to resist the two (2) men, she was easily overpowered by them. After appellant Arevalo was through with Ruth, he left the room. Appellant Organista then proceeded to defile her, inserting his penis into her vagina. As a result of her ravishment by the two (2) men, Ruth experienced pain whenever she urinated. “The next day, January 27, 2001, appellant Arevalo blindfolded Ruth. Thereafter, she was raped successively by several unidentified men. “On January 28, 2001, appellants Arevalo and Organista forced Ruth to take drugs. Next, appellant Arevalo blindfolded Ruth. Thereafter, several unidentified men raped Ruth, one after the other, in appellant Arevalo’s room. Before sexually abusing her, each of these men paid a fee to appellant Arevalo. Ruth knew this, because she would hear the men say to him, ‘Pare bayad’ or ‘Pare ito na ang pambayad.’ “On January 29, 2001, appellant Arevalo vented his carnal desire on Ruth again. After undressing Ruth, he had forcible sexual intercourse with her on his bed. “On January 30, 2001, appellant Arevalo forced himself upon Ruth once more. While appellant Arevalo was raping her, appellant Organista, who was visiting, merely looked on and did nothing to stop his friend and neighbor. After appellant Arevalo had ejaculated, appellant Organista took over, ravishing Ruth until he, too, succeeded in discharging his semen on her. While this was going on, appellant Arevalo merely stood by, laughing. “On January 31, 2001, appellant Arevalo sexually abused Ruth yet another time, piercing her womanhood and bringing himself to a climax. Other men followed in raping her that night in appellant Arevalo’s room, but she could not see them because appellant Arevalo had covered her eyes.

“The following day, February 1, 2001, five (5) men raped Ruth in succession in the same room after paying a sum to appellant Arevalo. Once again, she could not see their faces because appellant Arevalo had blindfolded her. “On February 2, 2001, appellants Arevalo and Organista took turns in raping Ruth in appellant Arevalo’s room. Ruth knew that both men had reached a climax after forcibly copulating with her, for her vagina was very wet with their semen. “On February 3, 2001, appellant Arevalo slapped Ruth, pulled her hair, inserted his penis into her vagina and ravished her until he ejaculated. Appellant Organista followed, similarly unleashing his seminal fluid on the hapless woman upon reaching a climax, while appellant Arevalo looked on and held her down. Ruth’s ordeal did not end at this point, for she was subsequently raped by several other men after paying appellant Arevalo one hundred pesos (P100.00) each. “On February 4, 2001, appellants Arevalo and Organista again raped Ruth in the same room. Appellant Organista had forcible sexual intercourse with Ruth until he ejaculated; he also forced her to eat his penis. Appellant Arevalo followed, inserting his penis into her private part, causing it to hurt. He also ejaculated his semen on her. “In addition, appellant Arevalo, as with previous dates, sold Ruth to many other men that day. All of them sexually abused her after each paying appellant Arevalo one hundred pesos (P100.00). “On February 5, 2001, appellant Arevalo once more peddled Ruth and Regina to unidentified persons who each paid him one hundred pesos (P100.00). Appellant Arevalo also forcibly copulated with the two (2) women that day. Additionally, appellant Organista ravished Ruth to the point of ejaculation while appellant Arevalo watched. Ruth could only lie helpless while she was being raped by appellants, as they were too strong for her. “On February 6, 2001, appellants Arevalo and Organista raped Ruth again. Appellant Organista ravished Ruth first, undressing her, inserting his manhood into her as she lay on appellant Arevalo’s bed, and helping himself to an orgasm while leaving Ruth in pain. Appellant Arevalo then took over, defiling her as well. Thereafter, he blindfolded her and sold her for sex to other unidentified men. “On February 7 and 8, 2001, appellant Arevalo repeated his ravishment of the helpless woman until he ejaculated on her. “Thereafter, appellant Arevalo blindfolded Ruth and sold her flesh to many other men. Again, Ruth knew this, for she heard them say to him, ‘Pare bayad’ and she also heard him talking to them. “On February 9, 2001, appellant Arevalo blindfolded the two (2) women and sold their sexual services to several men. Appellant Arevalo warned Ruth that he had already killed a man before, and she believed him; hence, she did not dare remove her blindfold because she was afraid of him. “On February 10, 2001, appellant Arevalo forcibly consummated his lust on Ruth once more. He also let other men ravish her for a fee. “On February 11, 2001, several men paid appellant Arevalo to have sex with the two (2) women. Appellant Arevalo himself did not spare Ruth, penetrating her maidenhood yet another time until he was satisfied. “On February 12, 13, and 14, 2001, appellant Arevalo again peddled the women to other men for sex. Appellants Arevalo and Organista were not to be outdone, for they, too, ravished Ruth on February 12 and 13, 2001. “On the night of February 14, 2001, after they had fulfilled their lustful designs on the two (2) women and prostituted them to other men, appellants Arevalo and Organista had a drinking spree in the former’s room. Thereafter, they fell asleep. Regina Acu[ñ]a got the key to the door from appellant Arevalo’s pocket, dragged Ruth Acosta with her, and together they escaped. Regina and Ruth then reported their horrifying ordeal to the Makati police. It was around 9:30 in the evening. “That same evening, a team of Makati policemen and barangay tanods went to appellant Arevalo’s house accompanied by the Regina and Ruth. They knocked on the door. When appellant Arevalo opened the door, he was immediately identified by the women as their ravisher. Appellant Arevalo tried to escape, but he was quickly arrested by the police. Thereafter, the police and the two (2) women proceeded to appellant Organista’s residence which appellant Arevalo had readily pinpointed to them. The police knocked on the door and appellant Organista opened it. Again, the two (2) women quickly identified him as their other rapist. The moment he saw the policemen and the women, appellant Organista also tried to escape, but the police immediately apprehended him.

“The following day, the private complainants were physically examined by Dr. Miriam S. Guialani, the deputy chief of the Women’s Crisis and Child Protection Center of the Philippine National Police (PNP) in Camp Crame, Quezon City. “Dr. Guialani found infected erosions or abrasions at the 8 and 9 o’clock positions in the labial fold of Regina’s external genitalia, most likely caused by constant friction. She also noted hematoma, infection and fresh lacerations in the hymen at the 2 and 4 o’clock positions. In addition, the hymen was very very red and swollen, indicating that it had been subjected to force and violence. There was also a foul-smelling yellowish vaginal discharge strongly indicative of a sexually transmitted disease. On the whole, Dr. Guialani noted that the ‘genital findings show clear evidence of previous penetrating trauma.’ “On the other hand, Dr. Guialani found healed lacerations at the 4, 7 and 8 o’clock positions in Ruth’s hymen. She also noted edema and swelling at the hymenal rim and its mucosal tissues. Dr. Guialani similarly reported that Ruth’s ‘genital findings show clear evidence of previous trauma.’”[10] (Citations omitted) Version of the Defense On the other hand, the defense presented the following version of the facts: “OLIVER AREVALO testified that since December 27, 2000, he was in Ormoc, Leyte with his wife and two (2) children. On February 10, 2001, he went back to Manila to borrow money from his brother Tony to put up a sari-sari store but he was asked by his brother’s secretary to come back on February 13, 2001 so he went back to his brother’s house but his brother referred him to their elder brother at Project 6, Quezon City. He was only given P500.00. At around 4:00 o’clock p.m., he proceeded to Luneta where policemen were arresting vagrants at that time. The two (2) women, Ruth and Apple, referring to complainants Acosta and Acu[ñ]a, were arrested. He helped them by giving them food and clothing. They went with him to Makati and arrived at their house at around 11:30 p.m. The next day, February 12, 2001, the two (2) women were hungry again and Acosta was asking for transportation fare. He brought them to Organista’s house and the latter gave P10.00 to Acosta. The two (2) women left at around 1:30 in the afternoon. He had a drinking spree with Organista at his house. At around 1:00 in the morning, he saw policemen together with the two (2) women and one of the policemen boxed him, so he pointed Organista’s house to them. “HERMINIGILDO ORGANISTA could not remember where he was from January 23, to 26, 2001 because he was treated with ECI for about five (5) times at the National Mental Health Hospital since 1983. He claimed that said treatment has the tendency of weakening or affecting one’s memory. He corroborated the testimony of accused Arevalo that he only gave P10.00 for the food of Acosta. “AVELINA ORGANISTA testified that her son was treated at the National Mental Health in 1983. His last examination was in 1997. After said examination, her son could no longer work because they have to bind him because he was uncontrollable. He even threatened her that he would kill her when she opposed what he was doing. On the dates of the alleged rapes, her son was at home with her. “DR. PIA ALMA DE JESUS of the National Center for Mental Health testified that she first saw accused Organista for treatment on April 11, 2001. She learned from the hospital records that said accused had been mentally ill since 1982 or 1983 and had 23 admissions at the mental hospital. During his last admission, he was given oral medication to control his psychotic symptoms like illusions and hallucination. Failure to regularly take said medication could cause a relapse that would render him [unfit] for trial. “JESUS OCAMPO, driver and all around helper of accused Arevalo’s brother, Tony, testified that he usually see Arevalo on Tuesdays as the latter used to ask money from Tony.”[11] (Citations omitted) Ruling of the Trial Court The RTC found Arevalo and Organista guilty beyond reasonable doubt of 42 and 32 counts of rape, respectively -- committed from January 23, 2001 to February 14, 2001. The positive and straightforward testimonies of the victims, corroborated by medical reports, sufficiently proved the guilt of appellants. Having closely observed the demeanor of the victims during trial, the lower court found them credible. It found evidence that they had suffered extreme trauma, pain, humiliation and distress. It held that there was no ill motivation on their part to impute such serious offenses to appellants. The RTC found many inconsistencies in the defenses of denial and alibi resorted to by Arevalo. First, he could not state with certainty whether he and his family had left for Ormoc City or for Valencia, Leyte, when the rapes were committed. He failed to present bus tickets to support his claim, notwithstanding his manifestation during the trial that he would present them before the court. Second, the trial court was puzzled by his testimony that, because his brother came home early from work on Tuesdays, on those days he had to go to the latter’s house, which served as both office and residence. Third, on cross-examination, the brother’s helper contradicted Arevalo by testifying that the former had not seen the latter in the house on

February 10, 2001, the date on which one of the rapes had supposedly taken place. Fourth, the residence of the brother of Arevalo turned out to be located in Project 2, Quezon City, not in Project 3 as the latter repeatedly testified to. The defense of insanity proffered by Organista likewise failed to convince the trial court. He presented his mother who testified that he was not of sound mind, and that he had never left her side ever since he was a young boy. He contradicted her, however, when he declared on the stand that he was an electrician and a mason by vocation. According to him, during the period 1999 to March 2001 when he engaged in his vocation, he never received any complaints on his behavior from the people he constantly worked or associated with. Although Organista was indeed confined at the National Center for Mental Health, the period of his confinement did not include the period of the commission of the rapes, as he was last discharged from the Center in 1997. Moreover, he failed to prove his claimed insanity during or near the time of the commission thereof. On the contrary, when the arresting policemen, together with the victims, proceeded to his house, Organista tried to escape. His reaction was indicative of guilt and awareness of the wrong he had inflicted on the victims. Hence, this automatic review before us.[12] The Issues Appellants raise the following errors for our consideration: I “The lower court erred in not appreciating the exempting circumstance of insanity interposed by Accusedappellant Herminigildo Organista despite strong and convincing evidence presented to prove the same. II “The lower court erred in finding that conspiracy existed between the Accused-appellants. III “The lower court erred in imposing upon x x x Accused-appellant Herminigildo Organista the supreme penalty of death notwithstanding the presence of a mitigating circumstance. IV “The lower court erred in imposing the supreme penalty of death upon Accused-appellants on the assumption that they are guilty of the crime charged.”[13] Simply put, appellants’ arguments hinge on the following: (1) the trial court failed to appreciate Organista’s defense of insanity; (2) no conspiracy existed between appellants; and (3) they should have been found guilty of simple, not qualified, rape. For clarity, we shall discuss in reverse order the issues raised by appellants. The Court’s Ruling Appellants are guilty of simple, not qualified, rape; hence, the penalty for each count should be reduced from death to reclusion perpetua. First Issue: Proper Crime and Penalty Appellants maintain that the evidence of the prosecution is weak, and that their defense of alibi and denial should have entitled them to an acquittal. Organista adds that, assuming they were guilty, he should have been entitled to the mitigating circumstance of illness that diminishes an offender’s exercise of will power, pursuant to Article 13(9)[14] of the Revised Penal Code. In addition, appellants contend that the Informations did not allege with specificity that two persons had raped the victims. Therefore, they argue, the rapes should not have been qualified and they should not have been sentenced to death, which is the higher penalty provided under Article 266-B of the Revised Penal Code. Accordingly, the penalty for each conviction of rape should have been reclusion perpetua. The contentions of appellants are partly meritorious. While their respective defenses of denial, alibi and insanity must fail, we find them guilty only of simple, not qualified, rape. Alibi and Denial The positive, consistent and straightforward testimonies of the victims sufficiently established appellants’ culpability. Well-settled is the rule that denial and alibi, being weak defenses, cannot overcome the positive testimonies of the offended parties.[15] In order to merit credibility, denial must be buttressed by strong evidence of non-culpability,[16] which herein appellants failed to show. And in order for alibi to prosper, the accused must prove not only that they were at

some other place at the time of the commission of the crime, but also that it was physically impossible for them to be at the locus delicti or its immediate vicinity.[17] In the present case, appellants failed to demonstrate this fact. Without presenting any evidence to support his bare assertion,[18] Arevalo merely testified that he was in Ormoc, Leyte, from December 27, 2000, to February 10, 2001. He said that the bus ticket evidencing his trip to Leyte on December 27, 2000, was with his wife, while the return ticket to Manila on February 10, 2001, was with his brother. To corroborate his testimony, he manifested that he would present the tickets in court after retrieving them,[19] but he failed to do so. On the other hand, the mother of Organista averred that her son had stayed with her during the entire period of the commission of the rapes. But since their house was near Arevalo’s, or the place where the rapes were committed, then it would not have been unlikely for him to be in the vicinity at the time of the rapes. The victims’ testimonies, corroborated by the results of the medical examination, convincingly proved that appellants were the perpetrators. It is a time-tested rule that the evaluation of the credibility of witnesses and their testimonies is best undertaken by the trial court, because it had the opportunity to observe them firsthand and to note their demeanor and conduct on the witness stand. [20] For this reason, its findings on such matters, absent any arbitrariness or oversight of facts or circumstances of weight and substance, are final and conclusive upon this Court.[21] It is likewise well-settled that when a woman declares that she has been raped, she says in effect all that is necessary to show that rape has been committed; and when her testimony passes the test of credibility, the accused can be convicted on the basis thereof.[22] On the rapes committed against her on January 23 and 24, 2001, Acuña testified as follows: “Q: You said you were raped on January 23, 2001 and it was Oliver Arevalo who raped you. Will you kindly tell the Honorable Court how this was done? A: During that night when Oliver came back, he forcibly took off my clothes including my short pants. Q: And after Oliver took off your clothes and short pants, what else did he do, if he did anything? A: I asked him ‘Kuya, what will you do? Why are you taking off my clothes?’ xxx xxx xxx Q: After that, what did he do when you shouted for help? A: He approached me and he forcibly raised my feet and inserted his penis into my vagina. I shouted, pleaded for help. Q: Was Oliver successful in having his penis penetrate your female organ? A: Yes, sir. x x x. xxx xxx xxx Q: So do you recall how long you were raped by Oliver? A: It started January 23 up to February 14, 2001, sir. Q: And where did these other sexual assaults after January 23, 2001 meaning January 23, 24, 25, 26, 27, 28, 29, 30, 31, February 1 up to Feb[ruary] 14, 2001 happened? A: In the house of Oliver. xxx xxx xxx Q: At noon, ikaw ay walang damit mula ulo hanggang paa? A: Opo. Q: Iyon din ang gumahasa sa iyo? A: Si Oliver po. Q: Paano mo nalaman, nakapiring ka? A: Noong tina[n]ggalan niya ako ng piring ay si Oliver naman po ang sumunod. Court: Q: Ang ibig mong sabihin ay matapos yung ibang tao na gahasain ka ay sumunod naman si Oliver noong January 24? A: Opo.”[23] On the rapes that occurred from January 25 to 27, 2001, she testified thus: “Q: So on January 25, 2001, you are saying that it was not Oliver Arevalo who raped you but somebody else only that person whom you could not identify gave payment to Oliver to have sexual intercourse with you? Is that what you are saying? A: Yes, sir. But after that person, he was the one who would follow in raping me, sir. xxx xxx xxx Q: Who sexually assaulted you on January 26, 2001?

A: Oliver Arevalo, sir. INTERPRETER: Witness pointing to accused Oliver Arevalo. FISCAL NAÑOLA: Q: And how did he sexually assault you on January 26, 2001? A: I was naked at that time and he was poking the knife on me. INTERPRETER: Witness demonstrating pointing from her breast down to her private part. FISCAL NAÑOLA: Q: At that time that Oliver Arevalo, Jr. was poking a knife from your breast down to your private organ, were you wearing anything? A: None, sir. Q: So what else happened after that poking of a bladed weapon? A: After that, he raped me. Q: When you said [he] raped you, you mean he inserted his penis into your female organ? A: Yes, sir. Q: And was he able to reach climax? Meaning, was he able to complete the copulation? A: Yes, sir. xxx xxx xxx Q: Let’s go now to the incident on January 27, 2001 which is the 5th day. Tell us, was any rape committed on you on January 27, 2001? A: Yes, sir, everyday. I do not know what’s happening already because ‘patang-pata na ang katawan ko.’ Q: And could you recall if Oliver Arevalo, Jr. raped you on January 27, 2001, the 5 th day of your being in his house? A: Yes, sir. Q: And could you recall how did this happen? A: I could recall that everyday he was raping me. Q: At what time was this rape being committed? A: I do not know because from what I could recall, everytime somebody would use me, he would follow. xxx xxx xxx Q: So you are positively certain that on January 27, 2001, the 5th day of your being in the house of Oliver Arevalo that accused Oliver Arevalo raped you? A: Yes, sir.”[24] On the rapes from January 29 to February 14, 2001, she narrated the events as follows: “Q: Mrs. Witness, you stopped last time on the date January 29, 2001 which is the 7th day of your being in the house of accused Oliver Arevalo, Jr., the question is, please tell the Honorable Court what happened to you on January 29, 2001 in the house of Oliver Arevalo, Jr. in Makati City? A: Oliver Arevalo forced me to take drugs and then he used me, they were plenty, sir. Q: And when you said you were used, are you referring [to] being abused sexually? A: Yes, sir. Q: Was Oliver Arevalo successful in having sexual intercourse with you? A: Yes, sir. xxx xxx xxx Q: And was Oliver Arevalo successful in having sexual intercourse with you on January 30, 2001? A: Yes, sir. Q: Did he finish having sexual intercourse with you? A: Yes, sir. Q: Let’s now go to January 31, 2001. Now, what happened to you on January 31, 2001? A: He also used me during that day, sir, x x x. xxx xxx xxx Q: Let’s now go to February 1, 2001, what happened to you on February 1, 2001? A: He again raped me and then sold me again to other male persons. Q: And was Oliver Arevalo, Jr. successful in having sexual intercourse with you on February 1, 2001? A: Yes, sir. Q: And did he finish?

A: Yes, sir. xxx xxx xxx Q: What happened to you on February 3 at the house of Oliver Arevalo in Makati City? A: I was also raped, sir, by Oliver Arevalo. Q: Was he successful in raping you? A: Yes, sir. Q: Did he finish? A: Yes, sir. Q: What were you wearing at the time you [were] being raped? A: None, sir, nothing. Q: What about Oliver Arevalo, what was he wearing? A: Nothing also, sir. Q: Were you lying down when you were being raped? A: Yes, sir. Q: Did you resist him when you were being raped? A: I did not resist him already, sir, because I was ‘patampata na po ang katawan ko.’ Q: How about on February 4, 2001, what happened to you? A: Also the same, sir, I am not resisting already I am just crying. Q: Were you raped on February 4, 2001? A: Yes, sir. Q: Who raped you? A: Oliver Arevalo, sir. Q: What were you wearing at the time that you [were] being raped? A: Nothing, sir. Q: How about Oliver Arevalo, what was he wearing? A: Nothing also, sir. Q: Did he finish? A: Yes, sir. Q: On February 5, 2001, what happened to you? A: The same with February 4, sir. Q: Meaning, Oliver Arevalo raped you also? A: Yes, sir. Q: What were you wearing at the time that you [were] being raped? A: Nothing also, sir. Q: How about Oliver Arevalo, what was he wearing? A: Nothing also, sir. Q: Did he finish and fulfilled raping you on February 5, 2001? A: Yes, sir. Q: Meaning he was able to insert and penetrate his penis to your private parts, is that what you mean? A: Yes, sir. Q: On February 6, 2001, what happened to you, Mrs. Witness? A: I was sick last February 6, sir. Q: February 6, you got sick. Do you recall what illness or sickness is this? A: I had fever during that time and it was Rose who was taking care of me. Q: Were you raped on February 6, 2001? A: Yes, sir. Q: Who raped you? A: Oliver, sir. Q: What were you wearing when you [were] raped? A: Nothing, sir. Q: What about Oliver Arevalo, what was he wearing? A: Nothing also, sir. Q: Before you were raped, did you tell him that you were sick? A: No, sir. xxx xxx xxx

Q: How about on February 7, 2001, what happened to you? A: I was also raped by Oliver. Q: Was he successful? A: Yes, sir. Q: Did he finish? A: Yes, sir. Q: What were you wearing at the time that he raped you? A: Nothing, sir. Q: How about Oliver Arevalo, what was he wearing? A: Nothing also, sir. Q: What position were you at the time that you [were] being raped, were you lying down? A: Lying down, sir. Q: On the floor or on the bed? A: On the bed, sir. Q: Did you resist him on February 7, 2001? A: Yes, sir. Q: What did you do to him on February 7, 2001? A: I told him to pity me ‘parang awa mo na.’ INTERPRETER: Witness demonstrating that she was chilling and she was pushing the accused. FISCAL NAÑOLA: Q: Were you successful in pushing him? A: No, sir. Q: And Oliver Arevalo was able to have his penis penetrate you private parts? A: Yes, sir. Q: How about on February 8, 2001, what happened to you? A: I had a disease, sir, ‘tulo.’ Q: Aside from having that vaginal disease on February 8, 2001, what else if any happened to you if you recall? A: I was used again by Oliver, sir. Q: Did he finish? A: Yes, sir. Q: What were you wearing at the time that he raped you? A: Nothing, sir. Q: How about Oliver Arevalo, what was he wearing? A: Nothing also, sir. Q: Did you resist him? A: No, sir. Q: Why, why not? A: ‘Patampata na po ang katawan ko nanghihina na po ako.’ Q: How about on February 9, 2001, what happened to you if any did happen to you? A: Also like that, sir, up to February 14, I was being raped everyday. Q: So, from words you are saying the remaining days February 9 to February 14 you were not allowed to leave the house of Oliver Arevalo, Jr.? A: Yes, sir. Q: And during those days aside from you and Rose, were there any other person who were able to enter that house? A: Yes, sir. Q: Who? COURT: Witness pointing to a man also in yellow shirt and when asked he identified himself as Herminigildo Organista. FISCAL NAÑOLA: Q: Could you recall, Mrs. Witness, on what date did Herminigildo Organista enter the house of Oliver Arevalo, Jr. in Makati City?

A: On February 14, sir. Q: Do you know that February 14 is Valentine’s Day? A: Yes, sir. Q: So what happened to you on February 14, 2001 in the house of Oliver Arevalo, Jr. [on] Valentine’s Day? A: I was raped by two (2) persons, Oliver and Herminigildo. xxx xxx xxx Q: Who first raped you on February 14, 2001, Valentine’s Day? A: Herminigildo, sir. Q: He was the first one? A: Yes, sir. Q: Who were present if any when he raped you? A: Oliver Arevalo, sir. Q: The two (2) of them were there? A: Yes, sir. Q: And how did Herminigildo Organista raped you on February 14, 2001? A: He inserted his private parts to my vagina, sir. Q: Before that, did you resist him? A: Yes, sir. Q: How did you resist Herminigildo Organista? A: I pushed him, sir. Q: Were you successful in pushing him? A: Yes, sir. Q: And after pushing him, what happened next if anything else happened? A: Oliver said kaya mo yan pre, then what he did was he inserted his private parts to my private parts, sir. Q: Now tell us, what were you wearing at the time that Herminigildo Organista inserted his penis to your private parts? A: Nothing, sir. Q: Who removed your clothing before Herminigildo Organista was able to have his penis x x x insert[ed] to your private parts? A: Oliver Arevalo, sir. Q: Oliver Arevalo removed your clothing? A: Yes, sir. Q: Were you wearing bra and panty at that time before you [were] raped? A: None, sir. Q: Only your clothes? A: Yes, sir. Q: What kind of clothes is this, duster or pants and blouse? A: T-shirt only, sir. Q: How about your lower portion, what were you wearing? A: Nothing, sir. Q: Only T-shirt? A: Yes, sir. Q: And after Oliver Arevalo, Jr. removed your T-shirt, what happened to you? A: I was raped by Herminigildo Organista. Q: In what position were you at the time that you [were] being raped by Herminigildo Organista? A: Lying down on the floor, sir. Q: Not on the bed? A: Yes, sir. Q: Was Herminigildo Organista successful in having you raped on February 14, 2001? A: Yes, sir. Q: Did he finish? A: Yes, sir. Q: At the time that you [were] being raped, were you blindfolded? A: No, sir.

Q: How about Oliver Arevalo, where was he at the time that you [were] being raped by Herminigildo Organista? A: At the bed, sir. Q: And what was he doing? A: He [was] just looking, sir. Q: Looking at the both of you? A: Yes, sir. Q: And he did not do anything to prevent Herminigildo Organista from completing and successfully penetrating his penis to your private parts? A: Nothing, sir. Q: So, after Herminigildo Organista finished and successfully completed having intercourse with you, what else happened if anything happened on February 14, 2001? A: It was followed by Oliver Arevalo, Jr. Q: Was he successful in having you raped on February 14, 2001? A: Yes, sir. Q: Was his penis able to penetrate your private parts? A: Yes, sir.”[25] On the other hand, on the rapes committed against her from January 23 to February 13, 2001, Acosta testified as follows: “COURT: Sabihin mo nga sa hukuman kung papano ka o bakit nandoon sa bahay ni Oliver nuong 23 ng Enero taong kasalukuyan? A Naglalakad po ako sa Luneta nakasalubong ko siya. Ang sabi po niya sa akin ipapasok niya ako sa trabaho. Q Ano ang sumunod na pangyayari ng sabihin sa iyo ni Oliver na ipapasok ka niya ng trabaho samantalang ikaw ay nasa Luneta? A Ihahanap daw po niya ako ng trabaho. Q Proceed. FISCAL NAÑOLA: Q Nung sabihin niya sa iyo na ihahanap ka niya ng trabaho, ano pa ang sumunod na pangyayari? A Sinakay po niya ako sa jeep. Q Nung nakasakay na kayo sa jeep, saan kayo nagtungo? Saan kayo pumunta? A Sa bahay po ni Oliver. Q Sabihin mo sa [kagalang-galang] na Hukom kung alam mo kung saan yung bahay ni Oliver. A Sa Makati, Cembo. Q Nung dumating kayo sa bahay ni Oliver doon sa Makati, ano ang nangyari kung meron man? A Tinulak po ako sa kama. COURT: Q Anong oras ka dumating sa bahay ni Oliver? A Hindi ko na po maalala. Q Maari mo bang sabihin kung gabi o araw? A Gabi, po. Q Ikaw ba nung makasalubong mo si Oliver sa Luneta ay gabi rin? A Opo. Q Proceed. FISCAL NAÑOLA: Q Pagkatapos kang itulak ni Oliver sa kama, ano pa ang sumunod na nangyari kung meron pa? A Hinubad po yung t-shirt ko, shorts, panty at bra. Q Ikaw ba’y lumaban sa kanya habang hinuhubad ang iyong shorts, panty at bra? A Malakas po siya. Q Ano pa ang sumunod na pangyayari matapos kang hubaran ni Oliver ng iyong shorts, panty at bra? A Pinasok po niya yung titi niya sa ano ko. Q Yung sinasabi mong ano mo, ito ba yung iyong ari? A Opo. Q At matapos ipasok ni Oliver ang kanyang titi sa iyong ari, ano pa ang sumunod na nangyari?

A Hindi ko po matandaan. Q Ano ang iyong naramdaman nung ipinasok ni Oliver ang kanyang titi sa iyong ari? A Masakit, po. Q Si Oliver naman, naaalala mo pa ba kung ano ang suot ni Oliver, kung meron man nuong pinagsasamantalahan ka niya? A Wala po. Q Ibig mong sabihin siya ay hubo at hubad? A Opo. Q Pagkatapos nitong Enero 23 taong kasalukuyan 2001, meron pa bang ibang pagkakataon na ikaw ay ginahasa ni Oliver? A Opo. Q Ilang beses kung natatandaan mo? A Maraming beses, po. Q Pagkatapos nitong Enero 23 taong kasalukuyan, kinabukasan January 24, 2001, masasabi mo ba sa kagalang-galang na Hukom kung nanatili ka roon sa bahay ni Oliver? A Opo. Q Puede bang sabihin mo sa kagalang-galang na Hukom kung mayroong nangyari sa iyo kinabukasan January 24, 2001? A Opo. Q Ano ang nangyari sa iyo? A Ni-rape po ako. Q Nino? A Oliver po. Q Itong Oliver na sinasabi mo, ito rin ba yung Oliver na itinuro mo kanina? A Opo. Q Nung ni-rape ka ni Oliver sino ang nandoon sa bahay niya kung natatandaan mo? A Wala po. Q Kilala mo ba itong isang taong nagngangalang Herminigildo Organista? A Opo. Q Kung narito siya sa loob, puede bang ituro mo siya? A (Witness pointing to accused Organista.) Q Itong si Herminigildo Organista, naroon ba sa bahay ni Oliver nang dumating ka noong January 23, 2001? A Opo. Q May kinalaman ba siya, kung meron man, sa ginawang panggagahasa sa iyo ni Oliver nuong January 23, 2001? A Ni-rape rin po niya ako. Q Kailan? A Nuon pong January 23. Q Sinong naunang mang-rape sa iyo, si Oliver o si Herminigildo noong January 23, 2001? A Si Oliver po. Q Pagkatapos ni Oliver sinong sumunod? A Si Lito po. Q Itong sinasabi mong Lito, nandirito ba sa loob ng hukuman? A Opo. Q Puede bang ituro mo yung sinasabi mong taong nang-rape sa iyo na ang ngalan ay Lito? A (Witness pointing to accused Herminigildo Organista again.) Q Ibig mong sabihin ay dalawang beses kang ginahasa nuong January 23, 2001. Una ni Oliver Arevalo at pangalawa Herminigildo Organista, tama ba yon? A Opo. Q Sinabi mo rin na nung sumunod na araw January 24, ginahasa ka rin ni Oliver, tama ba? A Opo. xxx xxx xxx Q Pagkatapos nuong January 24, 2001, meron pa bang nangyari kung meron man nuong January 25? A Opo. Q Sabihin mo sa kagalang-galang na Hukom kung ano ang nangyari sa iyo?

A Ni-rape po niya ako. Q Sinong nang-rape sa iyo? A Si Lito po. Q Ito rin yung Litong itinuro mo kanina? A Opo. COURT: Q Paano mo nalaman na Lito ang palayaw niya? A Nung nahuli na po sila. Q Continue. FISCAL NAÑOLA: Q Pero ang mukha niya natatandaan mo? A Opo may balbas po siya. Q Nung ni-rape ka ni Lito o ni Herminigildo Organista nuong January 25, 2001, meron bang ibang tao doon sa bahay? A Meron po. Q Sabihin mo sa Hukom kung sino? A Hindi ko po kilala kasi po nakapiring ang mga mata ko. Q Papaano mo nasabi na si Lito ang gumahasa sa iyo kung nakapiring ang mga mata mo? A May balbas po siya. Q Nakita mo ba siya nitong January 25, 2001? A Nahawakan ko lang po ang balbas niya. Q Oo nahawakan mo nga pero nakita mo ba siya nuong January 25, 2001, itong sinasabi mong Lito? A Opo. Q Bukod kay Lito meron pa bang gumahasa sa iyo nuong January 25, 2001? A Binebenta po kami. Q Si Oliver Arevalo, Jr., ginahasa ka rin ba niya nuong January 25, 2001? A Opo. Q Sinong nauna, si Lito o Herminigildo Organista o si Oliver Arevalo? A Si Oliver po. Q At ang sumunod si Lito o si Herminigildo Organista? A Opo. Q Nung sinabi mong si Oliver ang naunang nanggahasa, nagtagumpay ba siya sa kanyang panggagahasa? A Opo. Q Anong naramdaman mo nuong ginagahasa ka ni Oliver? A Masakit po ang ari ko. Q Nasaan ka nung ginagahasa ka niya, sa kama ba o nasa sahig? A Nasa kama po. Q Ilan kayo sa kama nung ginagahasa ka ni Oliver? A Isa po. Q Ibig mong sabihin ikaw lang at si Oliver? A Opo. Q Nung sumunod na araw January 26, puede bang sabihin mo sa kagalang-galang na Hukom kung may nangyari sa iyo? A Opo. Q Anong nangyari sa iyo? A Ni-rape po. Q Sinong nang-rape sa iyo? A Si Oliver po. Q Bukod kay Oliver, bukod sa pangre-rape ni Oliver, meron pa bang nangyari sa iyo? A Opo. Q Ano yon, pakisabi mo sa hukuman? A Si Lito po. Q Anong ginawa niya sa iyo? A Rape din po. Q Ikaw ba’y nakahubad noon nang ni-rape ka ni Oliver?

A Opo. Q Sino ang naghubad sa iyo? A Si Lito po. Q Matapos kang hubaran ni Lito ni-rape ka ni Oliver, yon ba ang ibig mong sabihin? A Opo. Q Ikaw ba ay lumaban kay Lito o kay Oliver? A Malakas po silang dalawa. Q Matapos kang gahasain ni Oliver sino ang sumunod? A Si Lito po. Q Nagtagumpay ba si Lito sa panggagahasa sa iyo? A Opo. Q Ibig mong sabihin naipasok niya ang ari niya sa ari mo ganoon ba? A Opo. Q Ano ang naramdaman mo nung ipasok ang ari niya sa ari mo? A Masakit po ang pag-ihi ko. xxx xxx xxx Q Nuong January 29, may naaalala ka ba kung may nangyari sa iyo? A Rape din po. Q Sino ang nang-rape sa iyo nung January 29, 2001? A Oliver po. Q Bukod kay Oliver meron pa bang ibang nang-rape sa iyo nuong January 29? A Hindi ko po nakilala. Q Nagtagumpay ba si Oliver sa panggagahasa sa iyo nung January 29? A Opo. Q Ikaw ba’y hubad nung nangyari yon? A Opo. Q Sino ang naghubad ng iyong damit nuong January 29? A Si Oliver po. Q Nung ginahasa ka ni Oliver nung January 29, ano naman ang suot mo, kung meron man? A Wala po. Q Sino ang nag-alis ng iyong kasuotan nung January 29? A Si Oliver po. Q Lumaban ka ba kay Oliver nung ginagahasa ka niya nung January 29? A Malakas po siya. Q Bukod kay Oliver meron pa bang ibang gumahasa sa iyo nung January 29? A Hindi ko po kilala kasi may takip po ang mga mata ko. Q Ang nakilala mo lang ay si Oliver? A Opo. Q Saan ka ginahasa ni Oliver, sa sahig ba, sa kama o saan? A Sa kama po. Q Dumako tayo sa January 30. Natatandaan mo ba kung may gumahasa sa iyo nuong January 30? A Opo. Q Sabihin mo nga sa kagalang-galang na Hukom kung ano nangyari sa iyo nuong January 30, 2001? A Rape po. Q Sino ang nang-rape sa iyo? A Oliver po. Q Sino pa bukod kay Oliver, kung meron man? A Si Lito po. Q Sino ang naunang nang-rape sa iyo nung January 30, si Lito o si Oliver? A Si Oliver po. Q Nung nire-rape ka ni Oliver nung January 30, natatandaan mo ba kung nasaan si Lito? A Opo. Q Nasaan siya? A Pumunta po siya sa bahay ni Oliver? Q Habang nire-rape ka ni Oliver sa kama, nasaan si Lito?

A Nanonood po. Q Bakit mo nasabing nanonood siya, nakita mo ba siya? A Opo. Q Pinigilan ba niya si Oliver habang ginagahasa ka niya? A Hindi po. Q Ikaw, hinawakan ka ba ni Lito habang nire-rape ka ni Oliver? A Opo. Q Saan ka hinawakan ni Lito habang ginagahasa ka ni Oliver? A Sa kamay po. Q Ilang kamay ang hinawakan sa iyo ni Lito? A Dalawa po. Q At nakatapos ba si Oliver ng panggagahasa sa iyo nung January 30? A Opo. Q Papano mo nasabing nakatapos si Oliver? A Basa na po. Q Alin ang basa na? A Ang ari ko po. Q Matapos kang gahasain ni Oliver at naramdaman mong basa na ang ari mo, ang sumunod namang gumahasa sa iyo ay si Lito, ganon ba? A Opo. Q Nagtagumpay ba si Lito sa panggagahasa sa iyo? A Opo. Q Nakatapos ba siya? A Opo. Q Papano mo nalaman na nakatapos si Lito ng panggagahasa sa iyo? A Nilabasan din po. Q Si Lito? A Opo. Q Habang ginagahasa ka ni Lito nandon din ba si Oliver? A Opo. Q Anong ginawa sa iyo ni Oliver habang ginagahasa ka ni Lito? A Tumatawa po. Q Bukod sa tumatawa si Oliver habang ginagahasa ka ni Lito, hinawakan ka ba niya sa kamay o sa ibang bahagi ng iyong katawan kung natatandaan mo? A Kamay po at paa. Q Hinawakan ni Oliver? A Opo. Q Matapos kang gahasain ni Lito nong January 30, 2001, natatandaan mo ba kung may nangyari sa iyo nung sumunod na araw nung January 31, 2001? A Opo. Q Ano ang nangyari sa iyo nung January 31, 2001? A Rape din po. Q Sinong nang-rape sa iyo? A Oliver po. Q Nagtagumpay ba siya sa panggagahasa sa iyo nung January 31, 2001? A Opo. Q Nakatapos ba siya? A Opo. Q Papano mo nasabi na natapos si Oliver ng panggagahasa sa iyo? A Basa na po ang ari ko. Q Bukod kay Oliver Arevalo, meron pa bang nanggahasa sa iyo nung January 31, 2001? A Opo. Q Sino ang nanggagahasa sa iyo bukod kay Oliver? A Hindi ko po makilala kasi may takip ang mga mata ko. Q So ang natatandaan mo lang ay si Oliver?

A Opo. Q Nung sinabi mong nagtagumpay at natapos si Oliver sa panggagahasa sa iyo, puede bang sabihin mo sa Hukom kung ang ari niya ay naipasok niya sa ari mo? A Opo. Q Naramdaman mo ba nang ipasok ni Oliver yung ari niya sa ari mo? A Opo. Q Itinulak mo ba siya habang ginagahasa ka niya? A Malakas po siya. Q Hindi mo siya naitulak? A Hindi po. Q Meron ka bang damit noon o hubo’t hubad ka habang ginagahasa ka nung January 31, 2001. A Wala na po. Q Sinong nag-alis sa iyo ng damit mo nung January 31, 2001? A Si Oliver po. Q Si Oliver naman ano ang damit niya, siya ba ay may damit o wala nung January 31, 2001. A Wala po. Q So ibig mong sabihin ikaw at si Oliver ay parehong hubo’t hubad nung ginagahasa ka niya[?] A Opo. Q Saan ka niya ginahasa, sa kama ba o sa sahig, o sa anong lugar ng bahay? A Sa kama po. xxx xxx xxx Q Sino ang nanggahasa sa iyo noong February 2, 2001? A Si Oliver at si Lito po. Q Nagtagumpay ba si Oliver ng panggagahasa sa iyo? A Opo kaming dalawa po ni Regina. Q Matapos kang gahasain ni Oliver, at nagtagumpay siya, sino pa ang gumahasa sa iyo, kung meron man? A Hindi ko po kilala kasi may takip ang mga mata ko. Q Natatandaan mo ba kung nandoon si Herminigildo Organista noong February 2, 2001, habang ginagahasa ka ni Oliver Arevalo? A Opo. Q Anong ginagawa niya habang ginagahasa ka ni Oliver? A Wala po. Q Nanonood siya? A Opo. Q Hinawakan ba niya ang kamay mo o paa, ni Herminigildo? A Opo. Q Noong February 2, 2001? A Opo. Q Meron ka ba noong piring o takip sa mata? A Opo. Q Papano mo nalaman na hinawakan ang kamay mo o paa ni Herminigildo gayong may takip ang iyong mga mata? A Naramdaman ko po. Q Ikaw ba’y may suot na damit habang ginagahasa ka ni Oliver nung February 2, 2001? A Wala po. Q Sinong nag-alis ng damit mo? A Si Oliver po. Q Lumaban ka ba sa kanya habang inalisan ka ng damit? A Malakas po siya. Q Ano naman ang suot ni Oliver nung ginahasa ka niya nung February 2? A Wala po. Q Nakatapos ba si Oliver sa panggagahasa sa iyo nung February 2? A Opo. Q Papano mo nalaman na nakatapos si Oliver? A Basa na po ang ari ko.

Q Ano naman ang nararamdaman mo habang pinapasok ni Oliver ang ari niya sa ari mo? A Masakit po. Q Bukod kay Oliver meron pa bang gumahasa sa iyo nuong February 2, 2001? A Opo. Si Lito po. Q Pagkatapos ni Oliver ginahasa ka ni Lito? A Opo. Q Nagtagumpay ba si Lito o Herminigildo Organista sa panggagahasa sa iyo nung February 2, 2001? A Opo. Q Nakatapos ba siya? A Opo. Q Bakit mo nasabi na nakatapos si Lito ng panggagahasa sa iyo? A Naramdaman ko pong basa. Q Ang ano? A Ang ari ko po. Q Nasaan si Oliver habang ginagahasa ka ni Herminigildo? A Nanonood po. Q Bukod sa panonood, meron ba siyang ginawa kung meron man habang ginagahasa ka ni Lito? A Hinawakan po ang kamay ko. Q Dumako tayo sa sumunod na araw February 3, 2001. Natatandaan mo ba kung may nangyari sa iyo nuong February 3, 2001? A Opo. Q Ano ang nangyari sa iyo? A Ni-rape po kami ni Regina. Q Sino ang nang-rape sa inyo? A Si Oliver at si Lito po. Q Nuong February 3, 2001, sino ang unang nang-rape sa iyo? A Oliver po. Q Saang lugar ka niya ni-rape? A Sa bahay po niya. Q Saang parte ng bahay? A Cembo, Makati. Q Oo, pero saan ba sa kama, sa sahig….? A Sa kama po. Q Lumaban ka ba kay Oliver bago ka niya ginahasa nuong February 3? A Malakas po siya. Q Sinasaktan ka ba niya? A Opo. Q Sa papanong paraan? A Sampal po. Q Ano pa kung meron? A Sabunot po. Q Ano pa kung meron? A Wala na po. Q Pagkatapos kang sampalin at sabunutan ano ang ginagawa sa iyo ni Oliver? A Ni-rape po niya ako. Q Sigurado ka ba diyan? A Opo. Q Si Oliver naman, meron ba siyang damit nung ginagahasa ka niya? A Wala na po. Q Nakita mo ba nung nag-alis siya ng damit? A Nakita ko po wala na siyang damit. Q Matapos kang hubaran at nakita mo siyang wala ng damit, ano naman ang sumunod na nangyari? A Pinasok po ang ari niya sa akin. Q Nakatapos ba siya? A Opo.

Q Papano mo nasabi na nakatapos si Oliver sa panggagahasa sa iyo nung February 3, 2001? A Basa na po ang ari ko. Q Pagkatapos na naramdaman mo na basa na ang ari mo ano ang sumunod na nangyari? A Ni-rape po ako. Q Nino? A Lito, po. Q Meron ba siyang suot na damit nuong ni-rape ka ni Lito? A Wala na po. Q Nakita mo ba ng maghubad si Lito? A Opo. Q Nakatapos ba si Lito ng panggagahasa sa iyo? A Opo. Q Papano mo nalaman na nakatapos si Lito ng panggagahasa sa iyo? A Basa na po ang ari ko. Q Nasaan naman si Oliver habang ginagahasa ka ni Lito? A Nanonood po. Q Hinawakan ba niya ang kamay mo o paa mo? A Opo. xxx xxx xxx Q Sino ang nang-rape sa iyo nuong February 4, 2001? A Si Oliver po. Q Nagtagumpay ba si Oliver nuong February 4? A Opo. Q Saang lugar ka ng bahay niya ni-rape? A Sa kama po. Q May damit ka ba ng gahasain ka ni Oliver? A Wala na po. Q Sino ang nag-alis sa iyo ng iyong damit? A Si Oliver po. Q Si Oliver, meron ba siyang damit nang gahasain ka noong February 4? A Wala na po. Q Nagtagumpay ba siya ng panggagahasa sa iyo nung February 4? A Opo. Q Nakatapos ba siya? A Opo. Q Papano mo nasabi na nakatapos siya sa panggagahasa sa iyo nuong February 4? A Basa na po ang ari ko. Q Papano mo nasabi na basa na ang ari mo? A Naramdaman ko po. Q Naipasok ba ni Oliver ang ari niya sa ari mo nuong February 4? A Opo. Q Papano mo nasabi na napasok niya yung ari niya sa ari mo? A Masakit na po. Q Masakit ang alin? A Ang ari ko po. Q Lumaban ka ba sa kaniya habang ginagahasa ka niya? A Malakas po siya. xxx xxx xxx Q Hindi ka ginahasa ni Herminigildo nung February 4? A Opo. Q Opo ginahasa o opo hindi? A Opo ginahasa po. Q Ginahasa din? A Opo. Q Sinong nauna, si Oliver o si Herminigildo?

A Si Lito po ang nauna. Q Pagkatapos ni Lito si Oliver? A Opo. xxx xxx xxx Q Si Lito o Herminigildo, ni-rape ka ba niya nung February 5, 2001? A Opo. Q Nagtagumpay ba si Oliver sa pag-rape sa iyo nung February 5, 2001? A Opo. Q Paano mo nalaman na nakatapos ng panggagahasa sa iyo? A Basa na po ang ari ko. Q Sinabi mo na ni-rape ka ni Lito nung February 5, 2001, nagtagumpay ba si Lito? A Opo. Q Nakatapos ba siya ng panggagahasa sa iyo? A Opo. Q Pano mo nalaman na nakatapos siya nung February 5, 2001? A Basa na po ang ari ko. Q Pano mo nalaman na basa na ang ari mo? A Naramdaman ko po. xxx xxx xxx Q Dumako tayo sa February 6, 2001. Natatandaan mo ba kung may nangyari sa iyo nung araw na iyon? A Dalawa po kami ni Regina. Q Ano ang nangyari sa iyo at kay Regina? A Rape po. Q Sino ang nang-rape sa iyo at kay Regina? A Si Oliver at si Lito po. Q Sino ang naunang nang-rape sa iyo nung February 6 si Oliver o si Herminigildo? A Si Lito po. Q Nagtagumpay ba si Herminigildo sa panggagahasa sa iyo nung February 6, 2001? A Opo. Q Nakatapos ba siya? A Opo. Q May damit ka ba o hubad ka nung ginagahasa ka nung February 6, 2001? A Wala na po. Q Sinong nagtanggal sa iyo ng damit? A Lito po. Q Lumaban ka ba sa kaniya habang tinatanggalan ka niya ng damit? A Malakas po siya. Q Matapos kang tanggalan ng damit ni Lito nung February 6, ano ang ginawa niya sa iyo? A Pinasok po ang ari niya sa ari ko. Q Ikaw ba’y nasa kama o sa sahig, o sang lugar ka ng bahay nandon? A Sa kama po. Q Matapos maipasok ni Lito ang ari niya sa ari mo ano ang naramdaman mo? A Masakit po. Q Nakatapos ba si Lito sa panggagahasa nung February 6, 2001? A Opo. Q Bakit mo nasabing nakatapos siya? A Basa po ang ari ko. Q Sino ang sumunod na gumahasa sa iyo nung February 6 pagkatapos ni Lito, kung meron man? A Si Regina na po. Q Ang ginahasa? A Opo. Q Nino? A Ni Lito. Q Doon muna tayo sa panggagahasa sa iyo. Nung pagkatapos ni Lito na gahasain ka, meron pa bang ibang gumahasa sa iyo?

A Opo. Q Sinong gumahasa sa iyo matapos kang gahasain ni Lito? A Oliver po. Q Nagtagumpay ba si Oliver ng panggagahasa sa iyo? A Opo. Q Nakatapos ba siya? A Opo. Q Papano mo nalaman na nakatapos si Oliver ng panggagahasa sa iyo? A Nabasa po ang ari ko. Q Lumaban ka ba kay Oliver? A Malakas po sila. xxx xxx xxx Q Dumako tayo sa February 7. Natatandaan mo ba kung may nangyari sa iyo nuong February 7, 2001? A Opo. Q Ano ang nangyari sa iyo nuong February 7, 2001? A Ni-rape po kami ni Regina. Q Sinong nang-rape sa inyo? A Oliver at Lito po. Q Sino ang naunang nang-rape sa iyo nuong February 7, 2001, si Oliver o si Herminigildo? A Oliver po. Q Nakatapos ba siya? A Opo. Q Paano mo nalaman na nakatapos siya nuong February 7, 2001? A Basa na po. Q Ang alin? A Ang ari ko po. xxx xxx xxx Q Dumako tayo sa February 8. Natatandaan mo ba kung may nangyari sa iyo nuong February 8? A Kami po ni Regina. Q Anong nangyari sa inyong dalawa ni Regina[?] A Magdamag po. Q Magdamag na ano ang nangyari? A Rape po. Q Sinong nang-rape? A Si Oliver at si Lito po. Q Sinong naunang mang-rape sa iyo noong February 8, 2001? A Si Oliver po. Q Nagtagumpay ba si Oliver ng pangre-rape sa iyo noong February 8, 2001? A Opo. Q Nakatapos ba siya? A Opo. Q Papano mo nalaman na nakatapos siya? A Basa na po ang ari ko. xxx xxx xxx Q Dumako tayo sa February 10, 2001. Natatandaan mo ba kung may nangyari sa iyo? A Ginagahasa kami ni Regina gabi-gabi. Q Nino? A Yung mga nagbayad po. Q Ginahasa ka ba ni Oliver nuong February 10, 2001? A Opo. Q Nagtagumpay ba si Oliver sa panggagahasa sa iyo noong February 10? A Opo. Q Nakatapos ba siya? A Opo. Q Saan ka niya ginahasa, sa sahig, sa kama, saan?

A Sa kama. Q May damit ka ba nung ginahasa ka ni Oliver? A Wala po. Q Sinong nag-alis sa iyo ng damit nuong February 10? A Oliver po. Q Lumaban ka ba sa kaniya habang inaalisan ka ng damit noong February 10? A Malakas po siya. xxx xxx xxx Q Ginahasa ka ba ni Oliver nuong February 11, 2001? A Opo. Q Nagtagumpay ba si Oliver sa panggagahasa sa iyo noong February 11? A Opo. Q Nakatapos ba siya? A Opo. Q Saan ka niya ginahasa, sa sahig, sa kama, saan? A Sa kama po. xxx xxx xxx Q Anong natatandaan mong nangyari sa iyo noong February 12? A Ginagahasa kami ni Regina. COURT: Q Ilan ang nang-rape sa inyo nong February 12? A Marami po. Q Noong February 11, 13. A Marami po. Q Noong February 14? A Marami rin po. Q Samakatuwid, yung ginawa sa inyo nuong February 11 ay ginawa rin sa inyo noong February 12, 13 and 14? A Opo. Q Proceed. FISCAL NAÑOLA: Q Nitong February 12, natatandaan mo ba kung doon sa maraming iyon ay kasama si Oliver Arevalo? A Opo. Q Si Herminigildo o si Lito, kasama ba si Lito sa marami? A Opo. xxx xxx xxx Q Noong February 13, 2001, natatandaan mo ba kung merong nangyari sa iyo? A Opo. Q Sabihin mo nga sa kagalang-galang na Hukom kung ano ang nangyari sa iyo nuong February 13, 2001? A Binenta po kami ni Regina. Q Sino ang nagbenta sa inyo? A Si Oliver po. Q Pero ginahasa ka ba ni Oliver bukod sa taong pinagbentahan niya? A Opo. Q Nagtagumpay ba si Oliver sa panggagahasa sa iyo noong February 13? A Opo. Q Si Lito ginahasa ka ba noong February 13? A Opo. Q Nung matapos kang gahasain ni Oliver, noong February 13, 2001, ang ibig mong sabihin binenta ka? A Opo.”[26] After a painstaking review of the records of the case, we find no cogent reason to disturb the trial court’s findings on the credibility of the witnesses. When in open court they positively identified appellants as their rapists, the trial court rightly declared:

“The Court has closely observed the demeanor of the two complainants and did not find any ill-motive on their part to impute a serious offense against the two accused. Clearly evident were the trauma, pain, humiliation and distress on the part of Acu[ñ]a and the state of daze or shock Acosta was in. x x x.” [27] Nevertheless, though appellants are guilty of raping the victims, modifications have to be made regarding the counts of rape for which each of them should be held liable. From January 23 to 26, 2001,[28] only Arevalo, not Organista, should be held liable for the rapes of Acuña. A careful review of the records[29] shows that she identified only Arevalo as her rapist on those dates. For the rapes committed against Acosta on January 23, 25 and 26, 2001,[30] her testimony confirmed that both appellants had raped her separately.[31] It was not established, however, that Organista had raped her on January 24, 2001;[32] therefore, only Arevalo should have been convicted for the rape on that date. Acuña, on the other hand, clearly testified[33] that Organista had raped her only on February 14, 2001.[34] She further testified that after raping her, Organista had subsequently raped Acosta. [35] But Acosta was silent on whether she was raped by Organista on that date.[36] Because she was the best person to say whether he had raped her on that date, and she was silent on the matter, we resolve the doubt in his favor and acquit him of the offense that he allegedly committed on that date. Regarding the other counts of rape, we find no reason to disturb the trial court’s findings. For the rape of Acuña, Arevalo is found guilty of simple rape under Criminal Case Nos. 01-419 to 423, 01-425 to 01-428 and 01-430 to 01-441. He is likewise found guilty of the rape of Acosta in Criminal Case Nos. 01-442 to 01-446, 01-448 to 01-451 and 01-0453 to 01-464. On the other hand, for the rape of Acuña, Organista is found guilty of simple rape under Criminal Case Nos. 01-441. He is also found guilty of the rape of Acosta in Criminal Case Nos. 01-442, 01-444 to 01-445 and 01464. Criminal Liability The trial court erred, however, in imposing the penalty of death upon appellants when it appreciated the circumstance of rape by two or more persons twice -- once as a qualifying, then as an aggravating, circumstance. Article 266-B of the Revised Penal Code provides: “ART. 266-B. Penalties. – Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. “Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. xxx xxx x x x.” From the above, whenever the crime committed is simple rape, the penalty to be imposed is the single penalty of reclusion perpetua. On the other hand, whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. We must note, however, that the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, requires that the complaint or information should state the qualifying and the aggravating circumstances with specificity.[37] In the present case, no aggravating circumstance was alleged in the Informations. Hence, the lesser penalty should be applied, as the Court held in People v. Sabredo:[38] “The imposable penalty for rape under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, is reclusion perpetua. But where the rape is committed with the use of deadly weapon or by two or more persons, the imposable penalty ranges from reclusion perpetua to death. The use of the bladed weapon already qualified the rape. Under Article 63 of the Revised Penal Code, the crucial factor in determining whether appellant should be meted the death penalty is the presence of an aggravating circumstance which attended the commission of the crime. A perusal of the records shows that none of the aggravating circumstances enumerated in Article 14 of the Revised Penal Code was alleged and proven by the prosecution. Where there is no aggravating circumstance proved in the commission of the offense, the lesser penalty shall be applied.”[39] Second Issue: Conspiracy Appellants contend that conspiracy did not attend the rapes committed from January 23 to 26 and on February 14, 2001. This contention is partly meritorious. Without specifying whether it was referring to Acuña or Acosta, the trial court declared that appellants were in conspiracy in the rapes committed from January 23 to 26 and on February 14, 2001. From the records,

however, it seems that no such conspiracy took place when appellants separately raped Acosta on those dates. To be appreciated, conspiracy must be shown to have been committed as clearly and convincingly as the offense itself.[40] The Rape of Regina Acuña As regards Acuña, there was conspiracy only during the rape that occurred on February 14, 2001. We reiterate that, from the records,[41] her account of the rapes that happened from January 23 to 26, 2001 shows that only Arevalo, not Organista, raped her. Furthermore, no conspiracy attended the rapes on those dates. On February 14, 2001, both appellants raped her.[42] It was Arevalo who removed her clothes before Organista raped her.[43] Moreover, when the latter advanced towards her and she pushed him away, Arevalo - who was standing inside the same room all the while -- kept egging him on by saying, “Kaya mo yan pre.” The latter continued until he consummated his bestial attack upon the victim. We have held that an overt act in furtherance of conspiracy may consist of lending moral assistance to the coconspirators even through one’s mere presence at the scene of the crime.[44] In the present case (Criminal Case No. 01-441), Arevalo’s presence and words encouraged Organista to pursue his savage designs. The Rape of Ruth Acosta The records of the rape of Acosta from January 23 to 26 and on February 14, 2001, do not support the finding of conspiracy. On January 23, 2001,[45] appellants separately raped her one after the other, but only Arevalo raped her on January 24, 2001.[46] On January 25[47] and 26,[48] appellants again separately raped her one after the other, but it was only Arevalo who raped her on February 14, 2001.[49] Third Issue: Insanity Organista argues that the trial court erred in not exempting him from criminal liability, even though he was insane or completely deprived of intelligence during the commission of the rapes. He avers that his insanity may be deduced from the following: First, he cannot remember the events that transpired from January 23 to February 14, 2001, because the treatments he has been undergoing at the National Center for Mental Health since 1983 have weakened his memory. Second, Dr. Pia Alma de Jesus of the National Center for Mental Health testified that he had displayed psychotic symptoms like hallucinations and delusions. She opined that his failure to take his medications regularly could have caused his relapse. Third, the behavior and actuations he exhibited before and after the rapes were manifestations of mental instability. As testified to by his mother, he was violent and destructive to the extent of habitually setting their home furniture on fire. He even threatened to kill her when she confronted him on his behavior. Fourth, the New Bilibid Prison, where he is presently locked up, certified that he still suffers from chronic schizophrenia. We are not persuaded. The law presumes everyone to be sane.[50] The accused who pleads the exempting circumstance of insanity incurs the burden of proving it.[51] To be adjudged insane under Article 12 of the Revised Penal Code, he or she must have been completely deprived of reason or discernment and freedom of the will at the time the crime was committed.[52] For such deprivation to be ascertained, it is but proper to receive evidence during a reasonable period before or after the commission of the crime, for the mind -- its thoughts, motives and emotions -- may be fathomed only by examining whether the external acts conform with those of people of sound minds.[53] In the present case, while Organista had indeed been confined at the National Center for Mental Health for treatment, it does not necessarily follow that he still suffered from schizophrenia during the period of the rapes. No convincing evidence was presented by the defense to show that he had not been in his right mind, or that he had acted under the influence of a sudden attack of insanity, or that he had generally been regarded as insane around the time of the commission of the acts attributed to him. Well-settled is the rule that an inquiry into the mental state of the accused should relate to the period immediately before or at the very moment the act under prosecution was committed.[54] Mere prior confinement in a mental institution does not prove that the perpetrator was deprived of reason at the time the crimes were committed. [55] It must be noted that Organista had been discharged from the mental hospital well before the period of the rapes. We have held that if the insanity is only occasional or intermittent, the presumption of its continuance

does not arise.[56] One who relies on insanity proved at another time must prove its existence also at the time of the commission of the offense.[57] To prove his claimed insanity, Organista presented, as an expert witness on his mental condition, Dr. Pia Alma S. de Jesus of the National Center for Mental Health. It is important to note that she only began treating him beginning April 2001, or two months after the rape incidents,[58] upon orders of the trial court. Referring to hospital records, she narrated that he had been mentally ill since 1982 or 1983 and had been admitted to the Center a total of 23 times.[59] Prior to the rapes, his last confinement had been from October 27 to December 1, 1997,[60]again for schizophrenia. Likewise noteworthy is the fact that this period covering his last admission and discharge prior to the rapes was outside that of the commission thereof -- January 23 to February 14, 2001. Dr. De Jesus further testified that Organista had already been considered treated on the date of his discharge in 1997.[61] Though she opined that a patient who did not continue to take medications could suffer a relapse, she did not categorically state whether Organista had suffered such a relapse before the commissions of the rape. On the other hand, the prosecution has sufficiently established that Organista knew exactly what he was doing. His going to the house of Arevalo and either directly or indispensably cooperating with him -- day after day to ravish the victims -- could not have been the act of one so insane as to be incapable of entertaining a criminal intent. On February 14, 2001, specifically, Organista continued to ravish Acuña after being coaxed by Arevalo, “Kaya mo yan pre.”[62] That Organista persisted in the act all the way to its consummation leaves no doubt that it was voluntary, conscious and deliberate. Moreover, his attempt to flee when the police officers came to arrest him shows that he knew that what he had done was condemnable. Furthermore, Organista’s claimed amnesia does not preclude culpability. This charade is evidently a desperate ploy for exculpation. Failure to remember does not in itself prove the existence of such mental condition at the time the crime was committed.[63] The testimony of Organista himself militates against his credibility and puts his purported amnesia into serious question. During trial, he said that he could not remember where he had been from January 23 to 26, 2001. Surprisingly, he could remember perfectly well the number of times he had been treated at the National Center for Mental Health since 1983, what procedure he had gone through each time he was treated, the kind of medicine he had been given, the number of times Appellant Arevalo had borrowed money from him without paying, the total amount of money he had lent the former, and the resentment the latter had often felt whenever his friend would not repay him. Moreover, he could narrate in complete detail his fabricated story of how he had allegedly met the victims on February 14, 2001, and lent them money only to be later arrested for rape.[64] The prosecution aptly point out that his selective amnesia and mental dishonesty speak eloquently of his total lack of credibility on the witness stand. Finally, Organista is not entitled to the mitigating circumstance under Article 13(9) of the Revised Penal Code, because it was not shown that his mental illness at the time immediately preceding or at the very moment of the commission of the crime diminished his will power. Civil Liability The trial court’s award of damages should be modified. Prevailing jurisprudence holds that for each count of simple rape, the victim should be awarded P50,000 as civil indemnity and another P50,000 as moral damages for the injury evidently suffered.[65] This Court has granted moral damages to victims of rape without need of proof other than the fact of rape, which by itself shows the factual basis for the award. [66] The award of P100,000 to each of the victims by way of exemplary damages should be deleted, because no aggravating circumstance was proven. WHEREFORE, the October 26, 2001 Decision of the Regional Trial Court of Makati City (Branch 62), finding appellants guilty of qualified rape, is MODIFIED. The Court finds Oliver Arevalo y Abanilla Jr. GUILTY beyond reasonable doubt of SIMPLE RAPE. He is sentenced to suffer the penalty of reclusion perpetua for each count of rape in Criminal Case Nos. 01-419 to 01-423, 01-425 to 01-428, 01-430 to 01-446, 01-448 to 01-451 and 01-453 to 01-464. Furthermore, he is hereby ordered to pay the following: 1. To Regina Acuña, the amount of P50,000 as civil indemnity and P50,000 as moral damages for each count of rape in Criminal Case Nos. 01-419 to 01-423, 01-425 to 01-428, and 01-430 to 01-441 2. To Ruth Acosta, the amount of P50,000 as civil indemnity and P50,000 as moral damages for each count of rape in Criminal Case Nos. 01-442 to 01-446, 01-448 to 01-451 and 01-453 to 01-464

Herminigildo Organista y Andres is found GUILTY beyond reasonable doubt of SIMPLE RAPE and is sentenced to suffer the penalty of reclusion perpetua for each count of rape in Criminal Case Nos. 01-441 to 01-442 and 01-444 to 01-445. He is likewise ordered to pay the following: 1. To Regina Acuña the amount of P50,000 as civil indemnity and P50,000 as moral damages for each count of rape in Criminal Case No. 01-441 2. To Ruth Acosta, the amount of P50,000 as civil indemnity and P50,000 by way of moral damages for each count of rape in Criminal Case Nos. 01-442, 01-444 and 01-445 With respect to Criminal Case No. 01-441, both appellants are found guilty of two (2) counts of rape, for which the penalty of reclusion perpetua for each count is meted out to them. Finally, Herminigildo Organista y Andres is ACQUITTED in Criminal Case Nos. 01-419 to 01-422 and 01-443 and 01-464. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 46539 September 27, 1939 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VALENTIN DOQUEÑA, defendant-appellant. Primicias, Abad, Mencias and Castillo for appellant. Assistant Solicitor-General Concepcion and Assistant Attorney Paredes, Jr., for appellee. DIAZ, J.: The accused-appellant, who is a minor, was prosecuted for homicide in the Court of First Instance of Pangasinan, for having killed Juan Ragojos by stabbing him in the breast with a knife on November 19, 1938, in the municipality of Sual, Pangasinan. The court, after trying the case, held that the accused acted with discernment in committing the act imputed to him and, proceeding in accordance with the provisions of article 80 of the Revised Penal Code, as amended by Commonwealth Act No. 99, ordered him to be sent to the Training School for Boys to remain therein until he reaches the age of majority. From this order the accused interposed an appeal alleging that the court erred in holding that he had acted with discernment and in not having dismissal the case. On the date of the crime, the appellant was exactly thirteen years, nine months and five days old. The incident that gave rise to the aggression committed by him on the deceased is narrated in the appealed order as follows: Between 1 and 2 o'clock in the afternoon of November 19, 1938, the now deceased Juan Ragojos and one Epifanio Rarang were playing volleyball in the yard of the intermediate school of the municipality of Sual, Province of Pangasinan. The herein accused, who was also in said yard, intervened and, catching the ball, tossed it at Juan Ragojos, hitting him on the stomach. For this act of the accused, Juan Ragojos chased him around the yard and, upon overtaking him, slapped him on the nape. Said accused then turned against the deceased assuming a threatening attitude, for which the reason said deceased struck him on the mouth with his fist, returning immediately to the place where Epifanio Rarang was in order to continue playing with him. The accused, offended by what he considered an abuse on the part of Juan Ragojos, who was taller and more robust than he, looked around the yard for a stone with which to attack the now deceased Juan Ragojos, but finding none, he approached a cousin of his named Romualdo Cocal, to ask the latter to lend him his knife. Epifanio Rarang, who had heard what the accused had been asking his cousin, told the latter not to give the accused his knife because he might attack Juan Ragojos with it. The accused, however, succeeded in taking possession of the knife which was in a pocket of his cousin's pants. Once in possession of the knife, Valentin Doqueña approached Juan Ragojos and challenged the latter to give him another blow with his fist, to which the deceased answered that he did not want to do so because he (Juan Ragojos) was bigger that the accused. Juan Ragojos, ignorant of the intentions of the accused, continued playing and, while he was thus unprepared and in the act of stopping the ball with his two hands, the accused stabbed him in the chest with the knife which he carried. The order also contains the following conclusions and findings of fact which we are not at liberty to alter, not being called upon or authorized to do so, in view of the nature of the appeal before us, by section 138 of the Administrative Code, as amended by Commonwealth Act No. 3:

Taking into account the fact that when the accused Valentin Doqueña committed the crime in question, he was a 7th grade pupil in the intermediate school of the municipality of Sual, Pangasinan, and as such pupil, he was one of the brightest in said school and was a captain of a company of the cadet corps thereof, and during the time he was studying therein he always obtained excellent marks, this court is convinced that the accused, in committing the crime, acted with discernment and was conscious of the nature and consequences of his act, and so also has this court observed at the time said accused was testifying in his behalf during the trial of this case. The proven facts, as stated by the lower court in the appealed order, convinces us that the appeal taken from said order is absolutely unfounded, because it is error to determine discernment by the means resorted to by the attorney for the defense, as discussed by him in his brief. He claims that to determine whether or not a minor acted with discernment, we must take into consideration not only the facts and circumstances which gave rise to the act committed by the minor, but also his state of mind at the time the crime was committed, the time he might have had at his disposal for the purpose of meditating on the consequences of his act, and the degree of reasoning he could have had at that moment. It is clear that the attorney for the defense mistakes the discernment referred to in article 12, subsection 3, of the Revised Penal Code, for premeditation, or at least for lack of intention which, as a mitigating circumstance, is included among other mitigating circumstances in article 13 of said Code. The discernment that constitutes an exception to the exemption from criminal liability of a minor under fifteen years of age but over nine, who commits an act prohibited by law, is his mental capacity to understand the difference between right and wrong, and such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the records in each case, the very appearance, the very attitude, the very comportment and behaviour of said minor, not only before and during the commission of the act, but also after and even during the trial (U.S. vs. Maralit, 36 Phil., 155). This was done by the trial court, and the conclusion arrived at by it is correct. Wherefore, the appealed order is affirmed, with the costs to the appellant. So ordered. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-482 February 25, 1947 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO NOCUM, defendant-appellant. Severino P. Izon for appellant. Assistant Solicitor General Kapunan, Jr. and Solicitor Umali for appellee. BENGZON, J.: For having discharged a gun and accidentally killed Eugenio Francisco, the defendant Bienvenido Nocum, aliasBembe, was tried in the Court of First Instance Manila, before the Honorable Alfonso Felix, judge. Found guilty of homicide through reckless negligence, he appealed in due course. According to the evidence, about 9 o'clock in the evening of November 21, 1945, there was a fistic fight between Federico Bautista and Vicente Aurencio at the corner of Mayhaligue and Magdalena Streets, City of Manila. Desiring to stop the encounter, defendant shouted at the combatants. As these paid him no attention, he drew a .45 caliber pistol and shot twice at the air. The bout continued, however; so he fired another shot at the ground, but unfortunately the bullet ricocheted and hit Eugenio Francisco, an innocent by-stander, resident of the place. The wounded man was promptly carried to the St. Luke's Hospital where he expired soon after. The above paragraph is a composite and abridged statement of the declarations of several witnesses (Jesus Santos, Vicente and Juan Aurencio and Ramon Gagui) in connection with defendant's confession Exhibit F.1 But his attorney, assailing the validity of said confession in the ground of involuntariness, contends in this Court that in asmuch as the corpus delicti had not been demonstrated by evidence dehors that document, his client should be absolved, pursuant to several pertinent decisions. (United States vs. De la Cruz, 2 Phil., 148; and People vs. Bantagan, 54 Phil., 834.) Particular attention has been given to these points. Yet there is competent proof establishing the fact that, during the affray, pistol detonations were heard, and that one of the bullets produced the tragic death of Eugenio Francisco, whose photograph is Exhibit B. That is proof of the corpus delicti, i. e.,proof of violent death, whether or not feloniously caused. (See Moran, Law of Evidence,

Revised Edition, pp. 108, 109; People vs. Mones, 58 Phil., 46.) The confession Exhibit F served to identify the person who fired those shots and committed the offense. We feel no inclination to reject such confession, because the uncorroborated and implausible testimony of the accused, alleging he had been manhandled before signing this document, about which he knew nothing, could not definitely overcome the positive assertions of Pablo Montilla of the Manila Police Department (before whom Exhibit F had been executed) that no force or intimidation had been employed on Nocum, who willingly signed it "after propounding to him all the questions and explaining to him the contents" thereof. The impartiality of that officer of the law has not been shaken by the lone testimony of herein appellant, which, as explained in the People's brief, deserves no credence. Nocum said in court that he signed Exhibit F when Montilla told him "it was simply a proof that they arrested me" (p. 27, t.s.n.). This is inconsistent with the alleged third-degree methods. If he was forced, deceit was unneccessary. And yet, he could not be deceived thusly, because he was no illiterate, being seventh grader. Anyway, the trial judge had the chance to see the opposing witnesses, and to observe their demeanor on the stand; and in the conflict of their statements we will not interfere with his judgment, unless the record discloses some important circumstance which was overlooked, (United States vs. Remigio, 37 Phil., 599; United States vs. Maralit, 36 Phil., 155), it being the peculiar province of trial courts to resolve questions relating to the credibility of witnesses. (United States vs. Pico, 15 Phil., 549.) The mishap should be classed as homicide through reckless imprudence, the slaying having been unintentional (cf. People vs. Sara, 55 Phil., 939; and United States vs. Reodique, 32 Phil., 458). It is apparent the defendant wilfully discharged his gun — for which he exhibited no license, by the way — without taking the precautions demanded by the circumstance that the district was populated, and the likehood that his bullet would glance over the hard pavement of the Manila thoroughfare. A landowner surprise a youngster in the act of stealing some fruit in his orchard. To scare the intruder he fired a shotgun aiming at the foliage of a cherry tree. The shot scattered and a pellet injured the boy, who was standing under the tree. That was reckless negligence, the Spanish Supreme Court decided. (Sent. June 20, 1900, Viada, 5th ed., Vol. 7, p. 14.) The penalty imposed on the appellant is 2 months and 1 day to 1 year and 1 day, indemnity of P2,000 with subsidiary imprisonment, and costs. It is within the limits authorized by law. (Article 365, Rev. Penal Code, and Act No. 4103.) (Act No. 284.) Wherefore, the appealed judgment is affirmed, with costs against appellant. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-24781 May 29, 1970 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLOS FERNANDO alias COMMANDER "BOB," defendant-appellant. Maximo V. Cuesta, J and Cipriano Manansala for defendant appellant. Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Antonio A. Torres and Solicitor Teodulo R. Dino for plaintiff-appellee. TEEHANKEE, J.: Appeal from the sentence of reclusion perpetua imposed by the trial court on the accused-appellant for the crime of murder. The accused was charged with the crime of murder before the Court of First Instance of Tarlac under the following information: That on or about March 30, 1961, at nighttime, in the Municipality of Bamban, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Carlos Fernando alias "Bob," together with Francisco Ronquillo alias Commander "Manly," (Deceased) and Mario Salonga (at large), confederating, conspiring and helping one another, with malice aforethought and the deliberate intent to take the life of Bienvenido Laxamana, did then and there willfully, unlawfully, feloniously and treacherously attack the latter with pistols caliber 45, thereby inflicting upon the said Bienvenido Laxamana, mortal wounds on different parts of his body which directly caused his instantaneous death.

After trial, the trial court found the accused guilty as charged, on the strength of his two confessions, consisting of his 4-page written sworn statement taken on June 16, 1961 by Capt. Pedro Acierto of the First Philippine Constabulary Zone, 1 soon after his capture on June 12, 1961 in an encounter in Barrio Balibago between Dau and Mabalacat, Pampanga, between PC troops and Huks led by HMB Commander Francisco Ronquillo alias Commander Manly who was killed, and his 3-page testimony at the preliminary examination of the criminal complaint for murder conducted on July 19, 1961 by Judge Pompeyo S. Tiglao of the Municipal Court of Bamban, Tarlac, 2 as well as of his own testimony at the hearing of March 11, 1965 as the lone defense witness on his own behalf, at which he, freely admitted his participation in the murder. 3 The trial court found the facts as follows: "(O) n the evening of March 30, 1961, at about 7:00 o'clock, Bienvenido Laxamana was inside a store of one Honoria Atienza next to his house on the same side of the street in the poblacion of Bamban, Tarlac. He was then, sitting and eating peanuts. While in that position, Mario Salonga alias 'Manding,' who is still at large, and the accused Carlos Fernando alias 'Bob,' without any warning, suddenly and unexpectedly fired shots with their .45 caliber pistols at Laxamana. The duo then departed, leaving their victim sprawled outside the store. Salonga and Fernando were members of the Hukbalahap Organization. Before going to Bamban, Tarlac, on the evening of the incident, they were somewhere within the jurisdiction of Angeles City where they received instruction from one of their commanders, Francisco Ronquillo alias Commander Manly,' to liquidate Laxamana. The motive was that the latter, while an officer of the civilian guards, had ordered the killing of a relative of Commander "Manly" and the beating up of the father of Salonga. Fernando and Salonga went to Bamban from Angeles City by walking all along between sugar cane field. After the killing of Laxamana, they also decamped together the same route. The victim, Bienvenido Laxamana, was married to Remedios L. Laxamana. Two daughters were born out of their wedlock, the elder of whom is 13 years old. Before his death, Laxamana was a member of the Central Azucareras de Tarlac Planters' Association of that province. When his brother-in-law, the late Sinforoso Lomboy, was the Municipal Mayor of Bamban sometime in 1950, he became a member of the civilian guards or the Civilian Commando Unit (CCU) in that town with the rank of captain. That evening of March 30, 1961, Mrs. Laxamana came from the Catholic church of Bamban with her elder daughter, Bernadette. While on her way home and when the distance from her house was about thirty meters, she heard the firing of shots. She took cover in one stores; and after the firing had ceased, she went out and hurriedly proceeded to her home. In front of the store of Honoria Atienza she saw her husband sprawled on the ground full of blood. She was not able to come close to him because somebody held her back. A jeep arrived where her husband was placed but not long thereafter he was brought back already dead. Dr. Honorato Navarro, municipal health officer of Bamban Tarlac, made the autopsy of the victim's cadaver or the same night of the murder, and per his necropsy report, 4 the victim cited of "hemorrhage, massive, secondary to GUNSHOT WOUNDS, multiple (23) in neck, chest, and back, lumbar region, and upper and lower extremities," many of which were mortal wounds hitting vital organs in the neck such as the carotid artery and the vagus nerve, both lungs and the liver, kidneys and intestines in the lumber region. The trial court rejected the accused's testimony at the trial that he did not fire any shot at the victim but merely stood guard outside the store, and that his role, after Salonga had ceased firing at the victim was to fire three shots in the air as a signal for them to depart, thus: "(T)he Court entertains a very serious doubt on the veracity of the above-mentioned statement of the accused because the same is contrary to what he stated when he was first investigated by the P.C. after his apprehension. Portion of his written statement (Exh. F-1) reads as follows: 12. T — Natupad ba naman ninyo ang iniutos ni Comdr. FRANCISCO RONQUILLO na patayin si BIENVENIDO LAXAMANA? S — Opo napatay namin sa pamamagitan ng pagbaril sa kanya nuong gabing iyon ng ika-30 ng Marzo, 1961. 13. T — Anong clase ng baril ang inyong ginamit sa pagpatay kay LAXAMANA? S — Pareho po kaming gumamit ng Pistola calibre 45. Si MARIO SALONGA alias MANDING na aking kasama ay nakapagpaputok ng humigit kumulang sa labing-dalawa at ako naman ay tatlong putok. 14. T — Sinabi mong natupad ninyo ang utos ni Comdr. FRANCISCO RONQUILLO alias Commander MANLY, na patayin si Bienvenido Laxamana, natatandaan mo ba kung saan lugar ninyo binaril at pinatay ang taong naturan? S — Duon po sa loob ng isang tindahan sa Poblacion, Bamban, Tarlac, na ang may-ari sa naturang tindahan ay hindi ko kilala.

The answer of the accused to the above-quoted question No. 13 to the effect that he and Salonga both used .45 caliber pistols in killing Laxamana, with Salonga firing twelve shots and he, three shots, conveys no other idea, than that the three shots he fired were directed at the victim and not upwards into the air. The Court is inclined to believe that this statement is the one in keeping with the truth, taking into consideration the determination of the accused to participate in the killing of Laxamana and the number of gunshot wounds found on the latter's body. At any rate, the trial court further held, there was no doubt as to the existence of conspiracy between the accused and Salonga, as the accused actively participated in the criminal design of Salonga and acted in concert with him, granting arguendo that the accused merely stood guard for Salonga and that Salonga alone inflicted the 23 gunshot wounds on the victim. The trial court likewise rejected the accused's contention that he should be punished only for the crime of rebellion as the murder was in pursuance of the Huks rebellion movement, since the motive for the killing of the victim was personal, to avenge the alleged killing of a relative of Commander Manly and the alleged maltreatment of the father of Salonga, supposedly ordered by the victim. The trial court further pointed out that while the victim had been an officer of the civilian guards in Bamban, that was more than ten years ago in 1950, and the victim was an ordinary civilian when he was shot in cold blood. The trial court found that "(F)rom the testimony of the accused himself on the witness stand, it clearly appears that the firing of the shots which snuffed out the life of Laxamana was sudden and unexpected, without any risk to the assailant which might have proceeded from the defense of the victim. The crime, therefore, committed by the accused is murder, qualified by treachery," and therefore rendered the following verdict: IN VIEW OF ALL THE FOREGOING, the Court finds the accused CARLOS FERNANDO alias COMMANDER "BOB" guilty beyond reasonable doubt of the crime of MURDER defined and penalized under Article 248 of the Revised Penal Code, and in view of the absence of any mitigating or aggravating circumstance attending the commission of the crime, hereby sentences him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law, to indemnify the heirs of Bienvenido Laxamana in the sum of P6,000.00, without subsidiary imprisonment in case of insolvency in view of the nature of the principal penalty imposed, and to pay the costs. In this appeal, the accused-appellant assigns as error the trial court's rejection of his contentions that his participation in the murder was in furtherance of the Huk movement and that he should have been held by virtue of his Huk membership to have acted under the compulsion of an irresistible force and/or under the impulse of an uncontrollable fear of an equal or greater injury. He further assigns as error the trial court's denial of his motion to dismiss the case filed on November 4, 1963, after the prosecution had rested its case, on the ground of double jeopardy, on the ground of his previous conviction on August 31, 1961 by the Pampanga Court in another case 5of the crime of simple rebellion, on his entering of plea of guilty. We find the trial court's rulings to be in accordance with the evidence and the law. 1. Appellant's contention that because he and Salonga as members of the Hukbalahap organization had received from Commander Manly the order to liquidate the victim, the murder committed by them should have been held in furtherance of and absorbed by the crime of rebellion, and that they should have been instead charged for rebellion, is untenable. The record is bereft of any evidence that the murder was committed as a necessary means to commit rebellion or in furtherance thereof. The victim had no established connection with the government at the time. 6 As emphasized in People vs. Paz 7 besides, "(T)hat the killing was in pursuance of the Huk rebellion is a matter of mitigation or defense that the accused has the burden of proving clearly and satisfactorily." Far from discharging the burden, appellant himself revealed in his unrepudiated written confessions that the killing was inspired by personal motives of avenging the alleged killing of a relative of Commander Manly and the alleged maltreatment of Salonga's father, as ordered by the victim Laxamana, and cannot be deemed absorbed by the rebellion and should be separately prosecuted. 8 As held in Hernandez, supra, 9 the mere fact that the accused is a member of the Hukbalahap organization "is no reason why all his acts and misdeeds should be considered in furtherance of or absorbed by rebellion." Appellant's contention that Commander Manly's personal motive did not apply to him and that he merely obeyed as "a mere 'soldier' of the HMB is of no avail either in the face of his awareness of an acquiescence to the personal motivation and the void of any evidence that the murder was necessary to the rebellion or in furtherance thereof. Accused next asks the Court to "take judicial notice of the fact that the Hukbalahap or HMB organization deal with its members who disobey or refuse to carry out its orders in the most severe manner. A member who

disobeys or refuses to carry out its order may be liquidated or given another form of severe punishment." On this tenuous premise, he claims that by virtue of his Huk membership, his participation in the murder of the victim should have been deemed to be an act under the compulsion of an irresistible force and/or under the impulse of an uncontrollable fear of an equal or greater injury as to exempt, him from criminal liability. 10 Justice Moreland long set the norm for the application of these exempting circumstances: "...before a force can be considered to be an irresistible one, it must produce, such an effect upon the individual that, in spite of all resistance, it reduces him to a mere instrument and, as such, incapable of committing a crime. It must be such that, in spite of the resistance of the person on whom it operates, it compels his members to act and his mind to obey. He must act not only without will but against his will. Such a force can never consist in anything which springs primarily from the man himself; it must be a force which act upon him from the outside and by means of a third person. In order that one may take advantage of subdivision 10 of article 8 and allege with success that he acted under the impulse of an uncontrollable fear of an equal or greater injury, it must appear that the threat that which caused the uncontrollable fear related to a crime of such gravity and so imminent that it must safely be said that the ordinary run of men would have been governed by it. And the evil threatened must be greater than, or at least equal to, that which he is compelled to cause." 11 2. Accused dismally failed to show that he acted "not only without will but against will." On the contrary, he testified that he joined the Hukbalahap organization since, December 28, 1950 "because it is a good organization." 12 The record is devoid even of any claim of the accused that any threats were made upon him or that he acted under uncontrollable fear. He was not under any physical or moral compulsion when according to his own version at the trial, he freely stood on guard outside the store while his companion Salonga went inside and shot the victim. At his preliminary examination before Judge Tiglao, he further testified that his role as guard was to fight off any persons who might come to the aid of the victim Laxamana. 13 And without any physical or moral compulsion, after the killing, he and Salonga, according to his own testimony at the same preliminary examination, returned to report the same to Commander Manly at Barrio Kutid, Angeles, Pampanga and accept his congratulations and thanks. 14 3. The last principal error assigned by accused that the trial court should have dismissed the present case by virtue of his previous conviction for rebellion on August 31, 1961 is without merit. The accused, even before his apprehension in the encounter with the PC troops on June 12, 1961, already faced the criminal charge of rebellion in an information filed on October 17, 1960 against him and several others before the Pampanga Court of First Instance. 15 After his apprehension, he entered a plea of guilty to the charge and was sentenced to six years, eight months and one day of prision mayor per the decision handed down by the Pampanga court on August 31, 1961. The murder of Laxamana for which the accused stands charged in the present case was committed on March 30, 1961. The criminal complaint therefor was filed with the municipal court of Bamban, Tarlac on July 19, 1961 and after the records were forwarded on September 14, 1962 to the trial court, the murder information was filed on November 29, 1962. There clearly can be no double jeopardy, because the murder of Laxamana on March 30, 1961 could not have been possibly included as one of the specific counts in the information for rebellion filed against the accused on October 17, 1960, as the murder had not yet been committed then. Furthermore, the acts constituting the crime of rebellion were committed in the province of Pampanga where the accused was charged therefor, while the murder of Laxamana for which the accused is charged in the present case was committed in the province of Tarlac — over which the Pampanga court had no jurisdiction. 16 Finally, as the murder here had been shown to have been committed furtherance of the rebellion but for personal vengeance, it could not be deemed absorbed by the crime of rebellion but had to be separately charged and punished. 17 In resume, even going upon the accused's own version at the trial that he merely stood guard while his companion Salonga went inside the store and killed the victim, and that thereafter he fired three shots in the air as a signal for them to part and return to their camp, the trial court correctly held this to constitute more than adequate. Proof of his participation as conspirator and of his responsibility as co-principal in the murder. 18 In the absence of evidence that, the killing, qualified by treachery, was attended by any aggravating or mitigating circumstances, the trial court correctly imposed the penalty of reclusion perpetua. The indemnity to the heirs of the victim is increased to P12,000.00. 19 WHEREFORE, the judgment appealed from is hereby affirmed, with the modification that the indemnity to the heirs of the deceased Bienvenido Laxamana is increased to P12,000.00. With costs against the accusedappellant.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13025 December 29, 1959 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEODULO ROGSDO, ET AL., defendants-appellants. Solicitor General Edilberto Barot and Solicitor Jorge R. Coquia for appellee. Alfredo G. Fernando for appellant Teodoro Rogado. Angel C. Facundo for the appellants. BAUTISTA ANGELO, J.: On September 25, 1956, Teodulo Togado, alias Commander Sulit, Isaac Orenia, alias Commander Lawin, Domingo Golfo, alias Eser, Cresencio Arsenal, alias Sako, Pedro Merin, alias Abling, Francisco Racoma, aliasManeng, Pio Mercurio, alias Abling, Francisco Racoma, alias Rolando, Nemesio Arsolacia, alias Noli, and Conrado Devesa, alias Donato, were charged with murder before the Court of First Instance of Laguna for killing of one Salvador Areza. They all pleaded not guilty. During the trial and after several witnesses for the prosecution have testified, Francisco Racoma and Conrado Devesa were excluded from the information upon motion of the fiscal to be utilized as government witnesses. Later, upon motion also of the fiscal, the charge was dismissed for insufficiency of evidence with respect to accused Nemesio Arsolacia, Maximo Cerebo and Pedro Merin. Then counsel for the remaining accused filed a motion to dismiss on the ground that the killing of the deceased was accomplished by them in furtherance of the huk movement, but the motion was denied. Upon resumption of the trial, counsel for Teodulo Rogado and Pio Mercurio moved for separate trial on the ground that their defense is incompatible with the defense of their co-accused, which motion was granted by the trial court. And when both parties have submitted the case for decision, the trial court found the accused Rogado, Orenia, Golfeo and Arsenal guilty as principals of the crime charged and sentenced them to suffer the supreme penalty of death, while it found Pio Mercurio guilty merely as accomplice and sentenced him to the penalty of from 8 years and 21 days of prision mayor as minimum to 14 years 19 months and 21 days of reclusion temporal as maximum, with the corresponding accessory penalties provided for by law. Each of the four principals was also ordered to indemnify the heirs of the deceased in the sum of P6,000.00 and the accomplice in the amount of P2,000.00, and all to pay their proportionate share of the costs. Pio Mercurio having failed to file his brief, this case is before this Court only for the review of the decision rendered against the accused Rogado, Orenia, Golfeo and Arsenal which imposes upon them the penalty of death. On July 12, 1956, Salvador Areza, a farmer residing in Lilio, Laguna, left his house carrying with him a bolo on lots scabbard to gather firewood in his farm in barrio Bubukal. When he failed to return home that day, his wife Lydia Nudal went out to search for him. She was accompanied by some armed men, the mayor, and a sanitary health officer, and after a brief search, they found the decapitated body of her husband in an uninhabited place in Bubukal about half kilometer away from the road. The gruesome find revealed that Areza's head was totally severed from his body with his hands tied together. The health officer, Dr. Dominador L. Gomez, found the body to be in state of decomposition, which led him to conclude that the deceased must have died three to five days prior to his discovery. Areza's bolo and his scabbard were also found near his body. It appears that on July 12, 1956, Teodulo Rogado, alias Commander Sulit, Isaac Orenia, alias Commander Lawin, Domingo Golfeo, alias Eser Cresencio Arsenal, alias Sako, Pedro Merin, alias Nestor, Maximo Cerebo, aliasManeng, Pio Mercurio, alias Abling, Nemesio Arsolacia, alias Noli, Francisco Racoma, alias Rolando, and Conrado Devesa, alias Donato, were on their way from barrio Sta. Lucia, Nagcarlan, to the municipality of Lilio, Laguna. They lost their way, and as they were looking for someone from whom they should get information as to their whereabouts they met Salvador Areza whom Racoma and Deveza approached. Upon their inquiry, Areza informed them that they were in barrio Bubukal, municipality of Lilio; that there was an army camp stationed nearby; and that the soldiers occasionally go on patrol to the barrios.

The information was reported to commander Sulit (Rogado) who in turn ordered that Areza be brought to him. After talking with him, Rogado asked Areza to lead the way for them, but Areza refused saying that he had much work to do, and besides he had a carabao with him. after a brief talk with Orenia, alias Commander Lawin, rogado told Racoma that they were taking along Areza and that if he should refuse, he should be tied, which instruction Racoma relayed to his two companions, Merin and arsenal, telling them to be prepared in case Areza would give them a fight. Thereupon, Racoma approached Areza and asked if he could barrow from him his bolo. Areza obliged. When Areza refused to go with them, Pio Mercurio dragged him along, and as he refused, Golfeo struck him with the butt of his gun. After walking a short distance, Mercurio tied Areza's hands behind him. Areza protested telling Mercurio that he had not done anything wrong, whereupon Golfeo gave him a fist blow on his stomach. After walking some distance, a command to stop was heard and so they stopped. Racoma then approached Rogado and told him that they should release Areza at night but rogado told him that Areza should be killed and when Racoma returned to the group he found that Areza was being assaulted by Orenia and Golfeo. At this moment, Racoma heard Rogado saying, in the vernacular, "Kill him now so we can proceed." Areza was then taken to a secluded place quite far from the road, which was thick forest about 20 or 30 meters away from the group, and there Golfeo ordered Areza to lie down. With Areza's bolo and ignoring the plea for mercy of their victim, Golfeo gave him a blow on the neck as he lay face down and with his hands still tied behind. With the same bolo, Arsenal also gave the victim another blow on the neck which completely severed the head from the body. On September 20, 1956, Pedro Merin, a member of the group who surrendered to the authorities, made a sworn statement before the Justice of the Peace of Nagcarlan, Laguna, stating therein that Salvador Areza was killed by Ezer and Sako upon order of Commander Sulit. Domingo Golfeo also made a sworn statement before the justice of the Peace of Sta. Cruz, Laguna, admitting his participation in the killing of Areza upon order of Commander Sulit. On September 21, 1956, Cresencio Arsenal also made a written statement before the Mayor of Sta. Cruz, Laguna, admitting that he was one of those who killed Areza. Both Domingo Golfeo and Cresencio Arsenal, while admitting their participation in the killing of the deceased, claimed in exculpation that they acted under the pressure of an irresistible force in that they merely obeyed the order of their Commander, Rogado aliasCommander Sulit, who would have killed them if they disobeyed his order. The other appellants merely contended that the killing was done in furtherance of the huk rebellion.lawphi1.net Their is no doubt that the unfortunate victim met his death in the hands of the accused who decided to take his life because of his stubborn refusal to obey their command that he lead their way to the place they wanted to go in order that they may not be exposed and caught by the agents of the law who were stationed in a nearby municipality. The only question to be determined is whether the defense they have set up is sufficient to exonerate them from liability. As regard accused Domingo Golfeo, The evidence is clear that it was he who first struck Areza with the butt of his gun hitting him on the side of his body, then gave him a fist blow on his stomach, and after he had been taken to a secluded place, it was he who ordered Areza to lie down in the fashion adopted by the Kempetai during the gloomy days of Japanese occupation and in that position gave him a blow on the back of the neck which almost severed his head from the body. His participation in the killing of Areza cannot therefore be doubted. His only defense is that he did so in obedience to the order of his commander, and because he acted under the influence of uncontrollable fear, he should be exempt from criminal responsibility. The defense of Golfeo is clearly untenable not only because of the well-settled rule that obedience to an order of a superior will only justify an act which otherwise would be criminal when the order is for a lawful purpose, but also because the circumstances under which Golfeo participated in the torture and liquidation of Areza cannot in any way justify his claim that he acted under an uncontrollable fear of being punished by his superiors if he disobeyed their order. In the first place, at the time of the killing, Golfeo was armed with automatic carbine such that he could have protected himself from any retaliation on the part of his superiors if they should threaten to punish him if he disobeyed their order to kill Areza. In the second place, the evidence shows that Areza was brought to a secluded place quite far from that where his superiors were at the time and in such a predicament, he and companion Arsenal could have escaped with Areza to void the ire of their superiors. The fact that he carried out their order although his superiors were at some distance from him and that without pity and compunction he struck his victim in a Kempetai fashion show that he acted on the matter not involuntarily or under the pressure of fear of force, as he claims, but out of his own free will and with the desire to collaborate with the criminal design of his superiors. In the circumstances, we find that the trial court did not err in finding him responsible for the death of Areza as co-principal by direct participation.

The same situation obtained with regard to Cresencio Arsenal. It appears that he was one of those ordered by Rogado to kill Areza and in obedience to such order he had a direct participation in the killing. It was he and Golfeo who brought Areza to a secluded place and once there he helped Golfeo in killing him with the same bolo which was taken from the victim himself. Thus, it appears that after Golfeo had given the first blow on the back of the neck of Areza as he lay face down on the ground, Arsenal took the bolo himself and gave the fatal blow which completely severed the head of Areza from his body. There is therefore no doubt that Arsenal directly cooperated with Golfeo in carrying out the concerted plan of killing Areza because of the hostile attitude he adopted in denying them the help they demanded from him. Since Arsenal to those existing in the case of Golfeo, his claim of obedience and fear of retaliation if he disobeyed his superiors' order cannot also be entertained. The other defense of appellants refers to their theory that they killed Areza not for personal motive but in furtherance of the huk rebellion and so, if any liability they have, it is only for rebellion and for murder as they are charged. And having already been prosecuted and convicted of the crime of rebellion in Criminal Case No. SP-137 of the Court of First Instance of Laguna, their prosecution in the instant case would constitute double jeopardy. to begin with, it should be stated that while this Court ruled in People vs. Hernandez, 99 Phil., 515, 52 Off. Gaz., No. 11, p. 5506, that there is no complex crime of rebellion with murder because the latter offense is absorbed by the former, however, a distinction was made in the case of People vs. Geronimo, 100 Phil., 90, 53, Off. Gaz., No. 1, p. 68, where we held that if the killing is inspired by personal motive such killing is not absorbed by the rebellion but may be the subject of separate prosecution. In the second place, we find that the acts with which appellants now charged do not appear included in the information for rebellion in Criminal Case No. SP-137, for in the case they were merely accused of having risen and taken up arms against the Philippine constabulary, Armed Forces of the Philippines, police forces and other military detachments of the government, without specifying the particular acts committed against private persons or civilians which may be said to have been undertaken in furtherance of the huk rebellion. It is not, therefore, correct to say, as appellants now claim, that the act in question is already included or absorbed in the rebellion charge filed against them in said criminal case. On the other hand, the pretense that the killing of Areza by appellants was done in furtherance of the huk rebellion is preposterous considering the fact that Areza was a mere farmer who had no connection whatsoever with any law-enforcement agency of the government. The pertinent question that arises is: Why was he taken killed and brutally beheaded by appellant? The answer is well given in the following interesting observation of the trial court: According to the testimony of the prosecution witness, Francisco Racoma, Salvador Areza was maltreated, tied and killed because the latter refused to lead and guide the group of Rogado to the road when he was asked by the latter to do so, Rogado's men were lost in the mountains of Lilio and they needed somebody to help them find the way out of the place. They came upon Areza working in his farm. Rogado asked him to lead the way and Areza refused saying that he had much work to do and he could not leave his carabao. Angered and irked by such stubborn refusal, Rogado after conferring with his co-defendant Orenia gave the order to take Areza along and to kill him. The killing of Areza was done solely to satisfy the anger of the leader, rogado, who being used to the blind obedience of his men could not tolerate the refusal of Areza to carry out his wishes and desires. The rebellious movement of the group had nothing to gain by Atienza's death. On the contrary, Rogado and his group needed Areza alive in order that they could utilize him as their guide while they were in the mountains of Lilio. There is no question that they could have easily at the point of their thompsons, carbines and garands, forced Areza to lead the way. But they did not do so, because at that time Rogado was not so much interested in finding the path to the road; what concerned him most was to teach a lesson and a hard one at that, to Salvador Areza for having the timerity of saying "no" to his wish and request. Surely, to kill a person under those circumstances is obviously outside of the political intent of the Hukbalahap movement. The huks rise up in arms because they mistakenly believe that by doing so they can have desired changes in the political, social, and economic life of this country. But to accomplish such a purpose, the death of innocent civilians like Salvador Areza is unquestionably unnecessary. When the killing is done solely for the purpose of answering the lust to kill or of satisfying angered feelings, thwarted desires of leaders and followers of the Hukbalahap movement, such a killing must receive its due punishment at the hands of our courts which are called upon to do justice not only to the living but just as well to the dead. An attempt was made by appellants to show that Areza was killed because he threatened to inform the Army of their presence in the neighborhood where he met them. Such attempt, however, is ridiculous, for Areza,

being then alone and confronted with a group of armed men, could not have hurled such a threat without catering immediate death. As the trial court aptly observed: "This Court cannot believe that Areza would have been such a fool to tell that band of armed Huks that he would give them away to the Army. It is reasonable to presume that any sane person would have seen the danger of making such statement under the circumstances, for that would have been sure death." The trial court found that the crime was committed with the qualifying circumstances of treachery, aggravated by abuse of superior strength and the fact that it happened in an uninhabited place, for which reason it imposed upon appellants to supreme penalty of death. While some members of the Court agree to the existence of the above aggravating circumstances, others however doubt if they could be entertained in the case of appellants who, as members of the Hukbalahap organization, rightly or wrongly, were of the belief that they were justified in doing what they had done because Areza committed something inimical to the purposes of their organization. At any rate, the requisite number of votes for the application of the supreme penalty not having been obtained, the only alternative is to impose upon them the penalty of reclusion perpetua. With this modification, we affirm the decision appealed from all other respects, with costs against appellants. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6082 March 18, 1911 THE UNITED STATES, plaintiff-appellee, vs. ISIDRO VICENTILLO, defendant-appellant. C.W. Ney for appellant. Attorney-General Villamor for appellee. CARSON, J.: The defendant in this case was found guilty in the court below of the crime of "illegal and arbitrary detention" of the complaining witness for a period of three days, and sentenced to pay a fine of 625 pesetas, with subsidiary imprisonment in case of insolvency, and to pay the costs of the trial. We are of opinion that under all the circumstances of this case there can be no doubt of the lawful authority of the defendant, in the exercise of his functions as municipal president, to make arrest of the complaining witness which resulted in his alleged unlawful detention. As we understand the evidence, the alleged offense with which the complaining witness in this case was charged was committed by him in the presence of the municipal president, who must be held to have had all the usual powers of a police officer for the making of arrest without warrant, under the doctrine laid down in the case of U.S. vs. Fortaleza (12 Phil. Rep., 472). The judgment of conviction of the court below must therefore be reversed, unless the evidence discloses that having made the arrest, the defendant arbitrarily and without legal authority, as it is alleged, cause the complaining witness to be detained for a period of three days without having him brought before the proper judicial authority for the investigation and trial of the charge on which he was arrested. But so far as we can gather from the extremely meagre record in this case the arrested man was in fact brought before a justice of the peace as soon as "practicable" after his arrest. True, three days were expended in doing, so, but it was conclusively proven at the trial that at the time of the arrest neither the local justice of the peace nor his auxiliary were in the municipality, and to reach the justice of the peace of either of the two adjoining municipalities, it was necessary to take a long journey by boat. The evidence discloses, moreover, that with all practicable dispatch, the prisoner was forwarded first to one and then to the other of the adjoining municipalities for trial, the failure to secure trial on the first occasion being due to the fact that the written complaint, which was intrusted to the policeman in charge of the prisoner, was either lost or stolen. It does not appear why the prisoner was not sent to the same municipality on both occasions, but in the absence of proof we must assume that in this respect the officers in charge were controlled by local conditions, changes in the weather, or the like, which, as appears from the uncontradicted evidence of record, made the journey by boats safer and more commodious sometimes to one and sometimes to the other of the two adjoining municipalities. It may be that the defendant was not friendly to the arrested man, and that he was not sorry to see him exposed to considerable inconvenience and delay in the proceedings incident to his trial, but there is nothing in this record upon which to base a finding that his defendant caused the arrest and the subsequent detention

of the prisoner otherwise than in the due performance of his official duties; and there can be no doubt of his lawfully authority in the premises. The trial judge lays great stress upon the trivial nature of the offense for which the arrest was made, but keeping in mind the fact that there was no judicial officer in the remote community where the incident occurred at the time of the arrest, and no certainty of the early return of the absent justice of the peace, or his auxiliary, we are not prepared to hold, in the absence of all the evidence on this point that in a particular case of a defiance of local authority by the willful violation of a local ordinance, it was not necessary, or at least expedient, to make an arrest and send the offender forthwith to the justice of the peace of a neighboring municipality, if only to convince all would-be offenders that the forces of law and order were supreme, even in the absence of the local municipal judicial officers. The judgment of the lower court convicting and sentencing the defendant must be reversed and he is hereby acquitted of the offense with which he is charged, with the costs in both instances de oficio. So ordered. THIRD DIVISION [G.R. No. 139759. January 14, 2005] DANILO “DANNY” MENDOZA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the petition for review on certiorari seeking the modification of the Decision[1] of the Court of Appeals, dated June 29, 1999, in CA-G.R. CR No. 21536, which affirmed the judgment of the Regional Trial Court (RTC), Branch 12, Laoag City, in Criminal Case No. 7190. In this case the trial court convicted accused Danilo Mendoza, petitioner herein, for homicide wherein the victim was Alfonso Nisperos. Petitioner does not seek an acquittal but merely prays that the privileged mitigating circumstance of incomplete selfdefense be considered in his favor. The Information charging petitioner with homicide is quoted as follows: “That on 23 November, 1994, in the evening at Brgy. 19, San Nicolas, Ilocos Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there willfully, unlawfully and feloniously stab ALFONSO NISPEROS on the different parts of his body which caused his death few moments thereafter. CONTRARY TO LAW.” Upon being arraigned on March 23, 1995, petitioner pleaded “Not Guilty.” However, on July 11, 1995, petitioner manifested, through counsel, his desire to change his plea to that of “guilty” and to prove the privileged mitigating circumstance of incomplete self-defense. Thus, on July 25, 1995, petitioner was re-arraigned and he entered a plea of “guilty.” Evidence for the prosecution show that on November 23, 1994, one Willy Baluyot celebrated his birthday at his residence in Barangay 19, San Nicolas, Ilocos Norte. Among those invited were Danilo Mendoza, petitioner, Alfonso Nisperos, Gervacio Pascua, William Kiskis, Manuel dela Cruz, Jr., Erwin Vergara, and Nelson Romana. During the party, Erwin Vergara got inebriated and had to be brought to a nearby hut by Alfonso Nisperos and Willy Baluyot to shake off the effects of his intoxication. When the duo returned, petitioner suddenly smashed a pitcher of water on the table and shouted, “Bullshit! You are always asking us to drink.” The group was taken aback. Alfonso Nisperos asked petitioner, “Why, Mang Danny, why should we be the ones to quarrel?” Petitioner then went to his house about 40 to 45 meters away. The group was still talking about petitioner’s outburst when Daniel Nisperos, a brother of Alfonso Nisperos, joined them. Daniel noticed that petitioner’s mother was displeased since the group was discussing her son’s behavior. She feared that something untoward might happen. This caused the party to break up and the Nisperos brothers headed for home. They were accompanied by their mother, Loreta Nisperos. After sometime, Alfonso Nisperos stepped out of his house to get some soup. When he returned, he told his mother Loreta that he saw a person near their cow tied to a tamarind tree. Alfonso then went out again to check on the person he saw. After a short while, Loreta suddenly heard Alfonso screaming, “Mother, help me!” Loreta rushed to her son. She found him lying, face down, with petitioner on top of him, stabbing him with a knife. Loreta then approached petitioner, pleading to him not to kill her son. But instead of heeding her plea, he suddenly attacked her with his knife, hitting her right arm. Petitioner then dashed away from the scene.

Danilo brought his brother, Alfonso, to the Batac General Hospital in Batac, Ilocos Norte where he was pronounced dead on arrival. Petitioner testified that the victim was the aggressor who attacked him with a knife. Thus, he was forced to kill him with his own knife in order to defend himself. On July 8, 1997, the trial court rendered its Decision convicting petitioner of homicide and sentencing him to suffer six (6) years and one (1) day of prision mayor, as a minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as a maximum, “having taken into consideration his plea of guilty.” Petitioner was also ordered to pay the heirs of the victimP50,000.00 as damages. On appeal, docketed as CA-G.R. CR No. 21536, the Court of Appeals affirmed the Decision of the trial court. Hence, the instant recourse. The sole issue for our resolution is whether or not the Court of Appeals erred in not finding that when petitioner committed the crime charged, the privileged mitigating circumstance of incomplete self-defense was present. Petitioner, in his petition, relies on Article 69 of the Revised Penal Code quoted as follows: “ART. 69. Penalty to be imposed when the crime committed is not wholly excusable. – A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking.” Petitioner contends that the trial court erred in holding that the witnesses for the prosecution who are close relatives of the victim are credible. Petitioner also contends that the prosecution failed to prove any motive on his part in stabbing the victim. Petitioner likewise faults the prosecution for its failure to present the knife used in attacking the victim. In incomplete self-defense, unlawful aggression must be present, it being an indispensable requisite. What is absent is either one or both of the last requisites, to wit: reasonable necessity of the means employed to prevent or repel it; and, lack of sufficient provocation on the part of the person defending himself. [2] Just as in complete self-defense, the burden of proof is upon petitioner to prove the elements of incomplete self-defense. It follows that he should have proved before the trial court that there was unlawful aggression on the part of the victim. As found by the trial court, petitioner, to establish this element, testified that during that drinking spree, he had an altercation with Willy Baluyot, the birthday celebrant. Feeling bad, he (petitioner) slammed the table with a pitcher containing water. Then he left. At a distance, he heard the victim calling him. When they were close to each other, the victim blamed him for his conduct. He apologized but the victim started stabbing him with a knife. He tried to parry the attack as he retreated. That moment, his back was against a wall. He then grappled for the knife which he was able to wrench from the victim. They rolled over on the ground. At that point, he repeatedly stabbed the victim with his own knife. The prosecution, to prove that petitioner was the aggressor presented Loreta Nisperos, victim’s mother, who testified as follows: “Q: And when you proceeded to that madre tree, what did you see? A: My son was already lying flat on the ground facing the ground and this Danilo was on top of him and stabbing him. Q: You said that you saw Danilo stabbing your son, what instrument did he use in stabbing your son? A: Knife (immuko). Q: Can you approximate the time, what time was that? A: Between the hours of 8:00 and 9:00 o’clock. Q: It was already nighttime and it was dark? A: It was moonlight and there was also a light near the place where they were drinking. Q: From the place where you saw Danilo Mendoza stabbing your son and the location of the bulb or the light, how far was it? ATTY. BELLO: There is no need of this question because the accused admitted that he stabbed the victim. ASST. PROV’L PROS. MOLINA: x x x Q: When you saw Danilo Mendoza stabbing your son, what did you tell him? A: I pleaded to him saying, ‘Danilo, Danilo, Danilo, please do not kill him.’

Q: Upon saying those words, what happened next? A: My son was able to move a little bit northward. Q: And where did the accused go? A: He still followed him. Q: And when the accused followed your son, what did the accused do? A: When I went near them, he also stabbed me. Q: And what portion of your body was stabbed? A: This one, sir. (Witness pointing to her right arm).” As stated by the Solicitor General in the appellee’s brief, petitioner was not defending himself from any attack but was himself the aggressor against the victim and his mother. The trial court did not believe petitioner’s testimony. Neither did the Court of Appeals. It bears stressing that factual findings of trial courts are accorded respect by appellate courts unless certain facts have been overlooked which, if considered, could affect the result of the case.[3] This exception is not present here. We thus agree with the Court of Appeals that there was no unlawful aggression on the part of the victim. This element being absent, petitioner cannot be accorded the privileged mitigating circumstance of incomplete self-defense. WHEREFORE, the appealed Decision of the Court of Appeals, sustaining the judgment of the trial court, is AFFIRMED, with costs de oficio. SO ORDERED. JOAQUIN E. DAVID, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. G.R. Nos. 111168-69 | 1998-06-17 DECISION MENDOZA, J: This is a petition for review on certiorari of the decision of the Court of Appeals. Petitioner Joaquin E. David was charged, in two separate informations, with homicide and frustrated homicide for the fatal shooting of Noel Nora and the serious wounding of the latter's brother, Narciso Nora, Jr., on March 28, 1981, in Malabon, Metro Manila. After trial, petitioner was found guilty as charged. The dispositive portion of the decision, dated August 17, 1988, of the Regional Trial Court of Kalookan City reads: 1 WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of Homicide under Articles 249 and 64(1) of the Revised Penal Code, and for the crime of Frustrated Homicide under Articles 249 and 50, without any mitigating or aggravating circumstance in both cases, and hereby sentences the accused, For the crime of Homicide, to suffer an indeterminate sentence of EIGHT (8) YEARS and ONE (1) DAY of prision mayor medium, as minimum, to SIXTEEN (16) YEARS of reclusion temporal medium, as maximum; For the crime of Frustrated Homicide, to suffer an indeterminate sentence of TWO (2) YEARS and ONE (1) DAY of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum. And ordering the accused: (1) To indemnify the heirs of Noel Nora the sum of P30,000.00 for the death of Noel Nora P37,000.00 for actual damages P30,000.00 for moral damages P20,000.00 for and as attorney's fees or a total sum of P117,000.00;

(2) Further, to indemnify Narciso Nora the sum of P8,728.00 for actual damages P20,000.00 for moral damages or a total sum of P28,000.00 SO ORDERED. On appeal, the Court of Appeals, in its decision 2 rendered on October 29, 1992, modified the sentence after crediting petitioner with the mitigating circumstance of voluntary surrender. 3 The penalty prescribed by law for homicide is reclusion temporal. Since there is one (1) mitigating and no aggravating circumstance, the penalty should be imposed in the [sic] its minimum period. Applying the Indeterminate Sentence Law, the range of penalty next lower to that prescribed by the Revised Penal Code for the offense is prision mayor. For the crime of Homicide, the penalty is therefore modified to a minimum of 10 years and 1 day of prision mayor to a maximum of 14 years and 8 months of reclusion temporal. As to the crime of Frustrated Homicide, the same is likewise modified to a minimum of 4 years and 1 day of prision correccional to a maximum of 6 years and 1 day of prision mayor. WHEREFORE, except for the modifications above indicated, the rest of the appealed judgment is hereby AFFIRMED in all respects. SO ORDERED. On July 29, 1992, the appellate court further modified the sentence on petitioner on the ground that the evidence did not show that he had a police record or that he was incorrigible. The dispositive portion of the court's resolution 4 stated: WHEREFORE, except for the penalties imposed which is hereby modified to read as follows: 1) for the crime of Homicide with one mitigating circumstance - the penalty ranging from six (6) years and one (1) day of prision mayor as minimum and twelve (12) years and one (1) day of reclusion temporal as maximum; and 2) for the crime of frustrated homicide with one mitigating circumstance - six (6) months and one (1) day of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum, the motion for reconsideration is DENIED for lack of merit. SO ORDERED. Still not satisfied, petitioner brought this appeal from the decision, as modified, of the Court of Appeals. Petitioner contends that 5 I. THE PUBLIC RESPONDENT COURT OF APPEALS GRIEVOUSLY ERRED IN NOT HOLDING THAT THE ELEMENTS OF SELF-DEFENSE HAVE BEEN ESTABLISHED BY PETITIONER BY EVIDENCE WHICH IS CLEAR, SUFFICIENT, SATISFACTORY, CREDIBLE, CONVINCING, COMPETENT AND PERSUASIVE. II. THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FAILING TO CONSIDER THE EXCULPATORY FACTS IN FAVOR OF THE PETITIONER WHICH IF DULY CONSIDERED WOULD HAVE COMPLETELY EXONERATED PETITIONER FROM THE CRIMES CHARGED. III. THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT IF THERE WAS NO COMPLETE SELF-DEFENSE, THEN AT THE VERY LEAST THERE IS IN THIS CASE AN INCOMPLETE SELFDEFENSE. STILL, IF PETITIONER'S DEFENSE IS DISBELIEVED, OTHER MITIGATING CIRCUMSTANCES

SHOULD BE APPRECIATED IN PETITIONER'S FAVOR. IV. THE DECISION OF THE PUBLIC RESPONDENT COURT OF APPEALS IS NOT IN ACCORDANCE WITH THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE. The prosecution evidence in this case is as follows: On March 28, 1981, at about 10:00 p.m., while the Nora brothers Arturo, Arnel, Noel and Narciso were walking along Flerida Street in Malabon, Metro Manila on their way home to Capitan Tiago Street, they saw petitioner near the compound of his house. Noel Nora, the deceased, confronted him about derogatory remarks allegedly made by the latter. Petitioner ran to his house to get a gun. When the Nora brothers reached the intersection of Flerida and Capitan Tiago Streets, he shouted at them "Putang ina ninyo (You sons of a bitch)" and other epithets, and then fired four times at them. One shot hit Noel, killing him. Another shot hit Narciso Nora on the ankle. Another nearly hit the zipper of Arturo Nora. Petitioner claimed self-defense. He alleged that on the night in question, he went to the corner of Flerida and Capitan Tiago Streets because Noel Nora had earlier challenged him to a fight. However, upon reaching the place, he found that Noel had brought along his three (3) brothers and other companions who ganged up on him. Petitioner claimed that Noel Nora stabbed him with a knife, hitting him on the left arm and that the group could have stabbed him several times more had he not been able to dodge their blows. He said when he tried to run away, the victim's brothers held both his arms while Narciso hit him with a piece of wood on the thighs and buttocks and the others boxed him on the abdomen. Petitioner said he was able to run away, but the Nora brothers chased him, shouting, "We will enter your house and we will kill you." Petitioner therefore took the .38 caliber gun of his father (who was a policeman) from the cabinet on the ground floor of their house. Petitioner went out of the house. The Nora brothers, who were just five (5) steps away from the door of their house, ran after seeing that petitioner had a gun. But after running to the other side of the street, they hurled stones at petitioner and shouted derogatory words at him. Petitioner claimed he afterward went inside the compound, but he slipped, whereupon the Nora brothers advanced toward him. He warned them not to get near, but they kept coming closer, for which reason petitioner fired at them. Petitioner was then from four (4) to five (5) meters away from the group. Petitioner afterward went inside their house and gave the gun to his mother. In rejecting petitioner's claim of self-defense, the Court of Appeals said: 6 The bone of contention in this case centers on the issue of self-defense. The trial court, in denying the same, ruled that since there was no unlawful aggression immediately preceeding [sic] the shooting of the victims, the claim of self-defense to justify the acts of the accused is unavailing. For its part, the appellant contends that the lower court erred in its appreciation of the evidence and testimony of witnesses relative to the locus of the shooting incident. The appellant claims that notwithstanding the direct contradiction made by defense witnesses regarding the locus of the crime, the same does not in any way diminish the credibility of appellant's story and his claim of self-defense. The contention is devoid of merit. In this case, the issue with respect to the locus of the crime is determinative not only of the place of its commission. More importantly, it is decisive in determining the existence of unlawful aggression as justification for appellant's claim of self-defense. The facts of the case and the evidence presented during the trial reveal that the shooting of the victims happened outside the residential compound of the accused. No matter how the defense try to belabour the issue by claiming in its reply brief that there were in fact two (2) compounds - the residence of the accused being a small compound within the bigger compound of his relatives' residence and that the victims were shot inside this big section albeit outside the residential compound of the accused, the evident fact remains

that the victims were shot not in the vicinity of appellant's residence as claimed by the defense but in the streets, after the accused has taken his father's gun from their house. Noteworthy is the testimony of defendant's mother to the effect that: Court: The Court would like to ask. Was your son outside or inside the gate of your compound when you went to verify the shots? Witness: He was about to enter the gate of our compound. Court: When you say he was about to enter the gate of the compound, he was coming from the outside of the compound of course? Witness: He was outside the gate of our compound. (TSN, 11 November 1987 p. 13) The accused who claims self-defense must prove its elements clearly and convincingly. The rationale is because such proceeds from the admission of the accused that he killed or wounded another, which is a felony, for which he should be criminally liable unless he established to the satisfaction of the Court the fact of legitimate defense (Castanares v. Court of Appeals, 92 SCRA 567) As correctly appreciated by the trial court, the evidence established that there was in fact no immediate unlawful aggression to warrant the acts of the accused in shooting the victims. While the accused was indeed mauled and beaten up by the deceased and his companions, the aggression stopped when the accused was able to free himself from the assault of the group and thereafter sought refuge in their house. An act of aggression, when its author does not persist in his purpose or when he discontinues his attitude to the extent that the object of his attack is no longer in peril is not unlawful aggression warranting self-defense (People v. Macariola, 120 SCRA 92) Having sought refuge in their house after the aggression had ceased, the accused should have desisted from stepping out of their abode with his father's gun. In going after the deceased and his companions after the unlawful aggression ceased to exist, the act of the accused became retaliatory in nature, done for the purpose of avenging whatever pain and injuries he had suffered from the hands of the victims. Consequently, the same cannot be considered as constituting self-defense for the act to repel the unlawful aggression must immediately follow such unlawful aggression (US v. Ferrer, 1 Phil. 56). First. Petitioner contends that the unlawful aggression of the Noras and their group did not cease and that the finding of the Court of Appeals that it did is contrary to the evidence, particularly the testimonies of Inocencio Antonio and Florthelito Vergara. Petitioner omits to mention the testimonies of his two other witnesses, Eduardo Bartolo and Pilar David, on which the trial court and the Court of Appeals relied for their finding that there was no longer any unlawful aggression when petitioner shot the victims. Bartolo testified that on March 28, 1981, he heard shots and the sound of stones being hurled. When he stepped out of his house to find out what was going on, he saw petitioner near the gate of their compound, aiming his gun at the Nora brothers. For her part, Pilar David, mother of petitioner, told the court that because she heard gunshots, she went to the gate of their compound to see what was going on. She said she saw petitioner getting inside the gate of the compound. Another defense witness, Inocencio Antonio, testified that the victims were rushing toward petitioner when they were at the corner of Flerida and Kapitan Tiago Streets. Antonio said:

ATTY. CRESCINI: [Defense Lawyer] Q. Where were those teenagers numbering 5 to 6 at that time that Jake David was about to fire those two (2) last shots? A. At the corner of Flerida and Kapitan Tiago Streets and they were rushing towards Jake David, sir. 7 The testimonies of these witnesses belie petitioner's claim that he shot the Nora brothers because they had come dangerously close to getting inside their house, having in fact entered their compound. Indeed, only Florthelito Vergara corroborated petitioner's testimony that he shot the victims because they had come close to their house by getting inside their compound. The defense tries to explain the contrary testimonies of the witnesses by pointing out that there are actually two compounds - a big compound fronting Flerida Street, which is occupied by his uncles' houses, and a small one in which petitioner's parents live. It claims that petitioner shot the Noras outside the small, but inside the big, compound. But, as the Court of Appeals held: 8 . . . No matter how the defense try to belabor the issue by claiming in its reply brief that there were in fact two (2) compounds . . . the evident fact remains that the victims were shot not in the vicinity of appellant's residence as claimed by the defense but in the streets . . . Petitioner contends that between the prosecution testimony and his testimony which is corroborated by two disinterested witnesses for the defense, their testimonies should be preferred. He cites the ruling in People v. Quiritan: 9 In a serious charge of murder, the guilt of the accused cannot be predicated on delayed and even inconclusive testimonies of alleged eyewitnesses which manifest signs of fabrication. But, in that case, the delay in producing the witnesses (two years), coupled with the generally weak and confusing testimonies given by them, showed that their statements had been concocted. There is nothing to show that the testimonies of prosecution witnesses in this case were fabricated. The Quiritan case is a very different case from that at bar. Findings of the trial court on the credibility of witnesses are entitled to great respect because it has the opportunity to observe the deportment of the witnesses and their manner of testifying. 10 The decision of the trial court in this case is notable for its painstaking analysis of the evidence of the parties. Its conclusion that the prosecution witnesses were more credible than the defense witnesses should be upheld in the absence of proof that it has overlooked certain important matters as to the credibility of the witnesses. In shooting the victims, petitioner was not acting to protect himself but retaliating for the insult and physical violence he had received at the hands of the victims and their group. In retaliation, the aggression that was begun by the injured party has already ceased when the accused attacks him. In self-defense, the aggression still exists when the aggressor is injured or disabled by the person making the defense. 11 In this case, defense witness Inocencio Antonio said that the victims and their companions were already running away because they saw petitioner armed with a gun. The unlawful aggression had thus already ceased when the latter fired at them. As Antonio testified: ATTY. CRESCINI: Q. Now, what did those teenagers, do after Jake David fired two (2) warning shots in the air? A. They were frightened and retreated towards Flerida Street and some at Kapitan Tiago Street, sir. Q. How about Jake David, what did he do when those teenagers ran some to Flerida Street and other [sic] at Kapitan Tiago Street?

A. He advanced up to the corner of Flerida and Capitan Tiago Street, sir. 12 An act of aggression, when its author does not persist in his purpose, or when he discontinues his attitude to the extent that the object of his attack is no longer in peril, is not unlawful aggression warranting self-defense. 13 Second. Petitioner claims that the appellate court failed to consider exculpatory facts in his favor. 1. Petitioner claims he was injured and that his injuries, although minor, show that he was attacked by the Noras, for which reason he filed a complaint for frustrated homicide against them in the fiscal's office. This fact was not overlooked by the appellate court. However, it found that "While the accused was indeed mauled and beaten up by the deceased and his companions, the aggression stopped when the accused was able to free himself from the assault of the group and thereafter sought refuge in his house." 14 2. Petitioner felt depressed after the shooting. He vomited and could not eat and had to be hospitalized. These circumstances show that he is not a killer at heart and certainly not the villain that the lower court pictured him to be. Furthermore, petitioner was so afraid he had to close his eyes in firing his gun. Proof of this is that Narciso Nora was only hit at the ankle. The undisputed fact is that the petitioner fired four shots, one a warning shot and three others directed at the victims. Two (2) of the three (3) shots directed against the victims hit their marks. One bullet killed Noel Nora and the other almost killed Narciso Nora, Jr. If the testimony of the prosecution witnesses is to be believed, the third bullet almost hit the zipper of Arturo Nora. This fact belies petitioner's assertion that he fired the gun with his eyes closed and only to defend himself. The fact that one shot hit Noel Nora on the chest, while the other hit Narciso, Jr. only on the ankle, could be due to petitioner's nervousness and unsteady hand, but not to the fact that he did not really mean to shoot them. Petitioner said he fired warning shots even as he warned them not to come near because, up to the last moment, he did not want to shoot the victims. Both the trial court and the Court of Appeals gave no weight to this claim, apparently because of the inconsistency in the testimonies of the defense witnesses. Petitioner said he fired only one warning shot: ATTY. CRESCINI: Q. You declared that when you saw them approaching and taking advantage of your having slipped, they were armed and you felt very afraid and nervous, what did you do when you saw them approaching? WITNESS JOAQUIN DAVID A. I fired the gun upwards. 15 But defense witness Inocencio Antonio said petitioner fired two warning shots: ATTY. CRESCINI: Q. Now according to you, he came out with a gun and fired two (2) shots, in what direction, did he fire those two (2) shots? A. In the air, warning shots. Q. Now what did those teenagers, do after Jake David fired two (2) warning shots in the air? A. They were frightened and retreated towards Flerida Street and some at Kapitan Tiago Street, sir. 16 Antonio later tried to correct his mistake but in doing so, only succeeded in showing that he had lied. Testifying again on October 29, 1985, Antonio said:

ATTY. CRESCINI: Q. You also testified during the last hearing that you heard two (2) warning shots on the evening of March 28, 1981, do you remember that? A. Yes, sir. Q. What made you say that there were, I am referring to the first two (2) warning shots, what made you say that they were warning shots? A. I remember that I did not hear two (2) shots but only one, sir. Q. What made you say that the one (1) shot was a warning shot? A. Because the gun was pointing upward, sir. 17 The inconsistency in the testimonies of the defense witnesses so undermined their credibility that both trial court and the Court of Appeals disregarded the testimonies. 3. It is claimed that petitioner is effeminate while in contrast, the deceased Noel Nora, his brother Lito, and a John Doe were bullies who, even at a very young age, had already been charged with slight physical injuries in two cases filed in the Municipal Court of Malabon. The purpose is apparently to show the bad moral character and troublesome nature of the deceased and his brothers, and thereby to show the improbability of the offenses charged pursuant to Rule 130, §51 of the Revised Rules on Evidence. It is true that where self-defense is claimed and the character of the slaying is doubtful, evidence of the violent and dangerous character of the deceased is admissible for the purpose of determining whether the deceased or the accused was the aggressor. 18 The fact, however, is that the cases filed against the deceased had been dismissed. No inference of the violent character of the victims can be drawn from the mere fact that criminal cases had been filed against one of them. Third. It is argued that, at any rate, petitioner should have been given credit for incomplete self-defense. It is not stated what element of self-defense is absent to make it incomplete. Be that as it may, our finding that there was no longer any unlawful aggression when petitioner shot the victims rules out the possibility of selfdefense, whether complete or incomplete. Petitioner further contends that certain mitigating circumstances, besides voluntary surrender, should have been considered in his favor, to wit: (a) that sufficient provocation or threat on the part of the offended party immediately preceded the act; 19 (b) that he acted in the immediate vindication of a grave offense committed against him; 20 (c) that he acted upon an impulse so powerful as to produce passion or obfuscation. 21 The mitigating circumstance of having acted in the immediate vindication of a grave offense may be appreciated. As the trial court and the Court of Appeals found, the petitioner had been beaten up by the Noras and their companions. Although the unlawful aggression had ceased when petitioner shot the Nora brothers, it was nonetheless a grave offense for the vindication of which petitioner may be given the benefit of a mitigating circumstance. As petitioner's mother testified: 22 ATTY. RODRIGUEZ: [Private Prosecutor] Q. Did you ask your son who fired the shots? A. I told him, "Ikaw ba, Jake?" I told him, "Are you the one?" "Pinagtulung-tulungan nila po ako kasi." But the mitigating circumstances of passion or obfuscation and sufficient provocation cannot be considered apart from the circumstance of vindication of a grave offense. These circumstances all arose from one and the same incident, i.e., the attack on the petitioner by the victims and their companions, so that they should be considered as one mitigating circumstance. 23

Nor is the fact that petitioner has not shown himself to be incorrigible a ground for reducing the penalty on him, as the Court of Appeals held in its resolution on the motion for reconsideration. This is a ground for suspension of judgment of youthful offenders, i.e., those over 9 but under 18 years of age, 24 which of course could no longer be ordered since at the time the trial court rendered its decision petitioner was already over 18 years of age. Clearly, this is not a mitigating circumstance and should not be used as basis for reducing the penalty. One circumstance not raised by the defense but evident from the record of this case is minority. In his statement to the police given on April 2, 1981, petitioner gave his personal circumstances as follows: "Joaquin David y Ejercito, 17 taong gulang, 2nd year college, binata at naninirahan sa 12-C Flerida St., Acacia, Malabon, Metro Manila". 25 At the hearing on November 11, 1987, petitioner's mother stated that he was 16 or 17 years old when the shooting incident happened: ATTY. RODRIGUEZ: Q. You know for a fact that your son Jake being only 17 on March . . . A. 16 or 17. Q. Because he was only 16 or 17, as a young man and quite curious, you know for a fact that sometimes your son got hold of it? A. I never saw him hold the gun of his father. I never for an instance saw him hold the gun of his father. 26 When the petitioner testified on March 11, 1987, he gave his age at that time as 22 years old. 27 It is thus clear that on March, 28, 1981, when the crime was committed, he was only 17 years old. We have held in many cases 28 that if the accused alleges minority and the prosecution does not disprove his claim by contrary evidence, such allegation can be accepted as a fact. Thus, in United States v. Bergantino, 29 the accused testified that she was below 15 when the crime was committed. This was corroborated by her mother and her husband. No other evidence, such as the baptismal certificate, was presented to support this claim. The prosecution did not offer any contradictory evidence. This Court held: While the evidence upon this point is not entirely satisfactory, yet it is sufficient to raise a reasonable doubt upon this material question in the case, to the benefit of which the defendant is entitled. The baptismal certificate or other evidence of this character would have been much more satisfactory to the court, and, if obtainable, should have been introduced. Neither the prosecution nor the defendant saw fit to introduce such evidence. Any doubt in respect of the age of the accused is resolved in his favor. In United States v. Barbicho, 30 it was held. In regard to the doubt as to whether the accused is over or under 18 years of age, and in the absence of proof that on the day he committed the crime he was 18 years old, he must perforce be considered as still under that age, and therefore, the mitigating circumstance mentioned in paragraph No. 2 of article 9 of the code should be applied in his favor . . . In United States v. Agadas, 31 this Court similarly held: While it is true that in the instant case Rosario testified that he was 17 years of age, yet the trial court reached the conclusion, judging from the personal appearance of Rosario, that "he is a youth 18 or 19 years old." Applying the rule enunciated in the case just cited, we must conclude that there exists a reasonable doubt, at least, with reference to the question whether Rosario was, in fact, 18 years of age at the time the robbery was committed. This doubt must be resolved in favor of the defendant . . . There are therefore present in this case the privileged mitigating circumstance of minority and two ordinary mitigating circumstances (voluntary surrender and immediate vindication of a grave offense). Because of the

presence of the privileged mitigating circumstance of minority, the penalty of reclusion temporal should be reduced by one degree to prision mayor, pursuant to Art. 68 of the Revised Penal Code. The penalty of prision mayor should further be reduced to prision correccional because of the presence of two ordinary mitigating circumstances without any aggravating circumstance, pursuant to Art. 64, par. 5 of the same Code. Applying the Indeterminate Sentence Law, petitioner should be made to suffer imprisonment, the minimum of which should be within the range of arresto mayor and the maximum of which within the range of prision correccional. On the other hand, for the crime of frustrated homicide, the penalty imposable for the consummated crime of homicide should be reduced by one degree, i.e., to prision mayor. Because of the presence of one privileged mitigating circumstance and two ordinary mitigating circumstances and no aggravating circumstance, the penalty of prision mayor should be reduced by two degrees, i.e., to arresto mayor. With respect to the award of damages, the amount of P30,000 awarded as indemnity for the death of Noel Nora should be increased to P50,000.00 pursuant to current rulings. 32 But the award of P37,000.00 for actual damages should be reduced to P22,000.00. As held in Fuentes, Jr. v. Court of Appeals, 33 only expenses supported by receipts and which appear to have been actually expended in connection with the death of the victim should be allowed. The award of actual damages cannot be based on the allegation of a witness without any tangible document to support such claim. In this case, only P22,000.00 is supported by a receipt (Exh. X) for funeral expenses. The amount of moral damages (P30,000.00) and attorney's fees (P20,000.00) appear to be reasonable and may therefore be allowed. With respect to the damages awarded for the shooting of Narciso Nora, Jr., the award of P8,728 as actual damages should be reduced to P1,928.65 as the receipts (Exhs. Y and Z) presented show the payment of this amount only to the National Orthopedic Hospital. The award of P20,000.00 as moral damages appears to be just and reasonable and therefore should be allowed under the circumstances. WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that, for the crime of homicide, the petitioner is sentenced to suffer an indeterminate penalty of 6 months of arresto mayor, as minimum, to 6 years of prision correccional, as maximum, and, for the crime of frustrated homicide, he is sentenced to suffer the penalty of 6 months of arresto mayor. In addition, petitioner is hereby ordered to pay the following: 1. To the heirs of the deceased Noel Nora, the sums of P50,000.00, as indemnity for the death of Noel Nora; P22,000.00, as actual damages; P30,000.00, as moral damages, and P20,000.00, as attorney's fees; 2. The sums of P1,928.65, as actual damages, and P20,000.00, as moral damages and P20,000.00, as attorney's fees to Narciso Nora, Jr. for wounding the latter. SO ORDERED. SECOND DIVISION [G.R. No. 149538. July 26, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. VINCENT HENRY CHUA, appellant. DECISION CALLEJO, SR., J.: Alegria Marie Antonette L. Luciano filed a petition with the Regional Trial Court in Angeles City, Pampanga for the confinement of her son, appellant Vincent Henry Chua, in a drug rehabilitation center for drug dependents. On May 20, 1994, the trial court issued an Order granting the petition and ordering the confinement of the dependent at the Gabay Diwa DrugRehabilitation Center in Angeles City.[1] However, on June 18, 1994, the appellant escaped from the center. The trial court, thereafter, issued an Order recommitting him to the center onJune 24, 1994,[2] but he again escaped.

On August 24, 1994, Magalang, Pampanga celebrated its town fiesta and there was a carnival in Barangay San Nicolas II, Magalang. A closed structure called “Wall of Danger”[3] was constructed inside the carnival grounds where stunts were performed.[4] The operator of the carnival, Alfonso Verances, had a tent inside the grounds where he and the following helpers slept: Francis Ryan Manabat, who was about twelve years old, Rodelio Santos, Michael (Vandolph) Santiago, Romeo Ignacio (Verances) and Jun Estanislao. Danilo Bondoc, who was then about eleven years old, would go to the carnival grounds and would even run errands for the helpers. At about 1:00 a.m. on August 28, 1994, Manabat was awakened when he heard a woman shouting, “Magnanakaw! Magnanakaw!” Santiago, Ignacio and Estanislao were also roused from their sleep. They asked who the robber was and the woman replied that the culprit was a boy. Santiago, Estanislao and Ignacio found Bondoc hiding in the ticket booth. They tied his feet and hands with a rope and forced him to confess, but Bondoc did not relent. Momentarily, the appellant arrived and brought Bondoc to a covered structure where he was kept hanging from the top of the ladder. He placed a live electric wire on Bondoc’s palms and forced the latter to confess to stealing from the woman. The boy still refused to confess. The appellant untied Bondoc and brought him to a booth where darts are thrown at balloons. He then ordered Ignacio, Santiago and Estanislao to guard Bondoc. The appellant then got a shovel and dug a knee-deep pit near the wall of their house which abutted the carnival grounds. Bondoc was able to flee, but stepped on a G.I. sheet which created noise. The appellant ran after him and brought the boy back to the covered structure. The appellant then repeatedly boxed the boy and hit the latter with a piece of wood (dos por dos) on the neck and jaw. Bondoc fell, barely conscious. Santos, who by then, had also been awakened by the commotion, saw the appellant hitting Bondoc with the piece of wood. The appellant then brought the boy to the pit and buried him alive. The appellant then ordered Manabat, Ignacio, Santiago, Estanislao and Santos to disperse, and warned them not to divulge the incident to anyone; otherwise, they would be his next victim. The five helpers went back to sleep. In the meantime, on August 29, 1994, the RTC issued an Order for the recommitment of the appellant to the rehabilitation center.[5] A warrant for his arrest for robbery was also issued by the RTC in “People vs. Henry Chua,” Criminal Case No. 94-08-58.[6] On September 1, 1994, Ignacio reported the death of Bondoc, at the hands of the appellant, to Jun Sia, a radio commentator and a reporter of the Central Luzon Times, and the latter’s co-worker, Bernie Chavit. He also reported the killing to the policemen of Police Station No. 1 in Angeles City. Sia, Chavit and SPO2 Celso de Castro and some policemen of the Magalang police station rushed to the carnival grounds and had the cadaver of Bondoc exhumed. Photographs of the exhumation and the cadaver were taken. [7] The policemen then arrested the appellant and brought him to the police station where Ignacio gave a sworn statement to SPO4 Leonardo C. de Leon identifying and pointing to the appellant as the assailant. [8] Dr. Suzette Yalung, the Municipal Health Officer, performed an autopsy of the cadaver of Bondoc and signed her Report containing her findings, viz: GENERAL APPEARANCE: Body in a state of decomposition. HEENT: Caved-in fracture of (L) fronto-parietal area of the skull, caved-in fracture of left lower jaw (+) 6-inch curvilinear abrasion, (longitudinal) on (L) anterior neck, (+) fracture of cervical vertebrae. CHEST/ABDOMEN: (+) discoloration & bloaching (sic) all over, body in a state of decomposition. EXTREMITIES: No fracture, all extremities in flexed position. CAUSE OF DEATH: Cardio-respiratory arrest due to asphyxiation and severe hemorrhage [Fracture of cervical vertebrae, (L) lower jaw & (L) fronto-parietal area of the skull.][9] On September 8, 1994, an Information was filed with the Regional Trial Court of Pampanga, Branch 57, charging Chua with murder. The accusatory portion of the Information reads: That on or about the 28th day of August 1994, in Brgy. San Nicolas II, Municipality of Magalang, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, qualified by treachery, abuse of superior strength and cruelty, did then and there, willfully, unlawfully and feloniously assault, attack, box and hit with a piece of wood, a 12-year-old minor Danilo Bondoc y Ponay, without justifiable reason therefor and as a result of the continuous assault on the person of Danilo Bondoc y Ponay by the accused, said Danilo Bondoc y Ponay sustained fatal and serious physical injuries all over his body and accused, thereafter, threw the body of said Danilo Bondoc y Ponay into a hole dug by the accused and covered the same, resulting to the death of said Danilo Bondoc y Ponay shortly thereafter, to the damage and prejudice of the heirs of Danilo Bondoc y Ponay. Contrary to law.[10]

The appellant, assisted by counsel, was duly arraigned and entered a plea of not guilty. The Case for the Appellant The appellant admitted to being at the scene of the crime, but claimed that Bondoc’s assailants were Ignacio, Santiago and Estanislao. He testified that at about past midnight ofAugust 28, 1994, he was in the office of the manager at the carnival grounds at Marves Subdivision, where he and his parents and the Chief of Police of Magalang, resided. He was playingtongking with the helpers of the carnival. He left for a while and when he returned, saw his cousin, Jomar Basa, and Romeo Ignacio, inside the covered structure talking about Bondoc who was hanging at the top of the ladder. He wanted the boy released, but Ignacio refused and assured him that nothing would happen to the boy. Ignacio tied up Bondoc and brought him to the “dart balloon” booth. Ignacio also kicked Bondoc and ordered Santiago and Estanislao to tie up Bondoc. Santiago and Estanislao did as they were told, and forced him to lie down on his stomach. When he remonstrated to Ignacio, the latter went out to the covered structure and took a .45 caliber gun. Ignacio warned him not to interfere with the carnival helpers. He toldSantiago to give biscuits to the boy, but Estanislao objected and even warned him that he was a police officer. The appellant then left, hearing Bondoc’s cries as he walked away. When he returned to the place, he saw the boy being kicked on his feet and palms by Estanislao and Santiago. He asked that Bondoc be released, but his request went unheeded. On orders of Ignacio, Estanislao got a shovel, and dug a hole with Santiago’s help, while Ignacio watched over Bondoc. Bondoc was able to run away, but stepped on a G.I. sheet which created noise and alerted the three. Ignacio, Santiago and Estanislao ran after the boy, collared him and brought him to the covered structure where he was electrocuted by Ignacio with a wire that Santiago produced. The appellant protested to this, but Ignacio told him that even if he protested, he would still be implicated anyway. By this time, the commotion had attracted several bystanders, male and female. Ignacio covered Bondoc’s mouth with a handkerchief which was supplied by Santiago. The boy was then brought to a hole where Ignacio hit him with a piece of wood. Bondoc fell into the hole, whereupon Ignacio buried him. On orders of Ignacio, Santiago and Estanislao placed garbage on top of the boy’s grave. Ignacio warned the appellant that if he revealed the incident to others, he would be implicated. The appellant then went home and slept. He was awakened by his uncle, Jerry Luciano, who told him that policemen were looking for him. He was brought to the police station where he was detained and charged for the death of Bondoc. Jomar Basa corroborated, in part, the appellant’s testimony, but testified that the helpers in the carnival grounds, aside from Ignacio, Santiago and Estanislao, as well as Darwin David and Oliver Santos, witnessed the crime. He also saw Bondoc being tied and kicked. He asked Ignacio to turn over custody of Bondoc to him, but Ignacio refused. He left the carnival grounds along with Santos and David. When they returned, they saw Lovely Ignacio, Romeo Ignacio’s wife, and asked where the boy’s body was, and the latter replied that Bondoc had gone home already. The appellant presented Rodolfo La Madrid, Geoffrey Alegre, Oliver Santos, Macario Paulino, Jocelyn Roberto and Rufino Ang, to corroborate his testimony and fortify his defense. After trial, the court rendered judgment convicting the appellant of the crime charged. The court declared that the appellant was a minor when the crime was committed; hence, was entitled to the privileged mitigating circumstance of minority under Article 68 of the Revised Penal Code. The decretal portion of the decision reads: WHEREFORE, finding the accused Vincent Henry Chua guilty beyond reasonable doubt of the crime of Murder, the Court hereby sentences him to suffer the penalty of 17 YEARS, 4 MONTHS and 1 DAY OF RECLUSION TEMPORAL, as minimum, to RECLUSION PERPETUA, as maximum, with full credit of his preventive imprisonment. As to the civil liability, the accused will indemnify the family of the victim as follows: a. Actual damages in the amount of FIFTY THOUSAND PESOS (P50,000.00); b. Moral damages in the amount of FIFTY THOUSAND PESOS (P50,000.00); c. Exemplary damages under Art. 2230 of the Civil Code of an appropriate amount of TWENTY THOUSAND PESOS (P20,000.00); and d. Attorney’s fees in the amount of FIFTEEN THOUSAND PESOS (P15,000.00).[11] On appeal, the Court of Appeals rendered judgment affirming the judgment of the trial court, but applied Article 63 of the Revised Penal Code and increased the penalty to reclusion perpetua. The appellate court considered the minority of the appellant merely as a generic mitigating circumstance, and concluded that such minority could not be considered a generic and a privileged mitigating circumstance at the same time.

The appellate court certified the case to this Court for review, conformably to Rule 124, Section 13 of the Revised Rules of Criminal Procedure. The Present Appeal The appellant did not file any supplemental brief with this Court; neither did the appellee. In his brief with the Court of Appeals, the appellant averred as follows: I THE TRIAL COURT ERRED IN DISREGARDING THE FACT THAT THERE WAS A COVER-UP DONE BY THE POLICE AUTHORITIES OF MAGALANG, PAMPANGA, AS TO THE REAL IDENTITIES OF THE CULPRITS. II THE TRIAL COURT ERRED IN NOT HOLDING THAT THE VERSION OF THE PROSECUTION AS TO THE ALLEGED INCIDENT IS REPLETE WITH IMPROBABILITIES AND CONTRARY TO HUMAN EXPERIENCE. III THE TRIAL COURT ERRED IN NOT HOLDING THAT THE PROSECUTION EYEWITNESSES ARE ACTUATED WITH BAD MOTIVE IN IMPLICATING THE ACCUSED-APPELLANT AS THE PERPETRATOR OF THE CRIME AND IN NOT DISCREDITING THE EYEWITNESSES OF THE COMMISSION OF THE CRIME. IV THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONY OF DEFENSE WITNESS RODOLFO LA MADRID. V THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER. VI THE TRIAL COURT ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSED-APPELLANT. VII THE COURT A QUO ERRED IN ORDERING THE ACCUSED-APPELLANT TO PAY P50,000.00 AS ACTUAL DAMAGES, P50,000.00 AS MORAL DAMAGES, P20,000.00 AS EXEMPLARY DAMAGES AND P15,000.00 AS ATTORNEY’S FEES.[12] The appellant asserts that the testimonies of Manabat and Sia are incredible. He contends that he was only seventeen years old when the crime was committed and, as such, he could not have committed the crime alone. He insists that there must have been others who assisted him in electrocuting the victim and in digging a knee-deep hole in which the victim was buried. He laments that the trial court even ignored the fact that Ignacio was convicted of carnapping.[13] The appellant also avers that he could not have committed the crime in the presence of onlookers, and in a place which was only a few meters away from the police station. The appellant claims that police officers Remigio Layug and Leonardo C. de Leon “covered-up” the investigation because despite reports that Ignacio, Santiago and Estanislao were involved in the crime, they were not investigated nor included in the charge of murder against the appellant. The police officers were even administratively sanctioned for their misconduct. The appellant contends that the claims of Manabat and Santos, that they refrained from reporting the crime because they were afraid of the appellant, are incredible. He avers that the prosecution presented Manabat and Sia as surrebuttal witnesses when Ignacio and Estanislao failed to appear during the preliminary investigation in the Municipal Trial Court and during the trial in the RTC. Manabat’s testimony that he was from Barangay Camias, San Miguel, Bulacan, was belied by Barangay Captain Macario Paulino and his certification that Manabat and his family were not residents of the said barangay. The Ruling of the Court The contention of the appellant has no merit. First. The trial court gave credence and full probative weight to the testimony of the prosecution witnesses, Manabat and Santos, viz: The revelation of Manabat and Santos were confirmed by Dr. Suzette Yalung, the one who made the autopsy on the cadaver of victim Danilo Bondoc, who testified that the cause of death of the victim was cardiorespiratory arrest and asphyxiation, severe hemorrhage, fracture of cervical vertebrae and left lower jaw and fracture on the left parietal area of the skull, the very injuries testified to by Manabat and Santos were the ones found by Dr. Yalung on the body of the victim confirming the authenticity of the former’s testimony.

The evidence also disclosed that victim Danilo Bondoc was tortured by the accused when he ran a 110voltage electric wire in the palm and feet of the victim and that the victim was also mauled causing severe hemorrhage in his body. Viewing the entire testimony of the witnesses for the prosecution, the Court finds the same to be consistent and corroborated one another, leading this Court to believe the same. The Court also noted that Francis Ryan Manabat and Rodelito Santos did not waver but stood pat during their cross-examinations. The Court did not find any motive for Manabat and Santos to pinpoint the accused as the culprit. There is no animosity nor bad blood between Manabat and Santos, on one hand, and the accused, on the other hand. In fact, Manabat and Santos are afraid of the accused because Vincent Henry Chua is a “siga” and “matapang” as per testimony of Rodelito Santos considering the fact that the family of the accused is the owner of the lot where the peryahan is located.[14] The Court of Appeals affirmed the findings of the trial court. The well-settled rule is that the findings of facts of the trial court, especially when affirmed by the Court of Appeals, are conclusive on this Court unless the trial court ignored, overlooked or misconstrued facts and circumstances which if considered warrants a revision or reversal of the outcome of the case.[15] We have reviewed the records and find no justification to deviate from the trial court’s findings. Second. The appellant failed to prove with clear and convincing evidence the physical impossibility of digging a knee-deep hole in the ground alone, with the use of a shovel. There is no evidence that the soil where the appellant dug was hard or even strong. At such a youthful age of seventeen years, the appellant had the physical strength and stamina to dig a knee-deep hole all by himself. Third. It is futile for the appellant to argue that it was unnatural of him to have committed the crime in full view of onlookers. Crimes are known to have been brazenly committed by perpetrators undeterred by the presence of onlookers or even of peace officers, completely impervious of the inevitability of criminal prosecution and conviction. In this case, the appellant was a drug dependent, an escapee from the rehabilitation center and had an outstanding warrant for his arrest for robbery, and an Order for his recommitment to a rehabilitation center. The appellant’s bare denials cannot prevail over the positive, straightforward and unwavering identification made by Santos and Manabat, that the appellant was the sole perpetrator of the crime. Thus, we agree with the findings and disquisitions of the Court of Appeals, viz: Accused-appellant further denies having inflicted any injuries on the victim. He claims it was impossible for him to beat the boy to death and at the same time dig the small grave where the victim’s body was buried. The evidence on record does not refute in any manner the capability of the accused to commit such acts of violence. On the contrary, appellant’s destructive behavior does not run counter to his psychological profile brought about by his drug dependency at the time of the incident. The record shows that accused-appellant’s own mother Ma. Antoinette L. Luciano had filed with the Regional Trial Court in AngelesCity, a petition for the voluntary commitment of the accused-appellant in a drug rehabilitation center. … … However, accused-appellant escaped from the Gabay Diwa Rehabilitation Center, thereby causing Ronald P. Balatbat, a psychologist of the said center, to recommend to the Angeles City Regional Trial Court the recommitment of accused-appellant. Acting on said recommendation, said court in its Order dated June 24, 1994, ordered the recommitment of accused-appellant for continuous treatment. But, again, accused escaped for the second time, thereby giving rise to another Recommitment Order dated August 29, 1994. … … Clearly, on the day of the fatal incident, accused-appellant was a second-time escapee from the drug dependency rehabilitation program he was sentenced to undergo. This is indicative of accused-appellant’s unwillingness to be rehabilitated from his dependency to drugs. Undoubtedly, accused-appellant’s drug dependency was responsible for his violent behavior towards the victim. Accused-appellant’s drug dependency and troublesome behavior was no surprise to the “peryahan” workers. They were aware that the carnival grounds belonged to the family of accused-appellant who resides some fifty (50) meters away from the “peryahan.” The proximity of the carnival grounds to the house of accusedappellant made it easy for him to frequent the place during daytime and nighttime as well. The “peryahan” workers observed accused-appellant as one that displayed a behavior characterized by them as a “bully” or “siga.” Accused-appellant’s drug dependency, reputation and influence deterred the “peryahan” workers, who were mere transients in Magalang, from intervening while accused-appellant was committing the

crime. This was further bolstered when accused-appellant, who, after burying the victim, threatened the “peryahan” workers with harm if they would report what had just transpired to the police authorities. This explains why prosecution witnesses Romeo Ignacio and Jaime Estanislao were reluctant in divulging any information relative to the fatal incident while they were still in Magalang, and why they waited until they were relocated to Angeles before going to the police authorities to report the incident. Prosecution witnesses Francisco Manabat and Rodelito Santos have positively identified accused-appellant as the one who inflicted upon the young victim such bodily harm. Manabat vividly recounted the entire incident from the time the victim was apprehended by the “peryahan” boys at the instance of a woman vendor to the time the accused-appellant took custody of the victim and started beating him which led to his untimely death. Santos who witnessed the accused-appellant struck and hit the victim with a piece of wood on the neck and jaw, causing the victim to fall down, materially corroborated this. The rule is the detailed testimony of a witness in a murder or homicide case acquires greater weight and credibility if it corresponds with the autopsy report.[16] Fourth. The appellant is not entitled to an acquittal simply because the police investigators did not include Ignacio, Santiago and Estanislao in their investigation, nor charge them, in tandem with the petitioner, for the death of Bondoc. The evidence on record shows that the involvement of Ignacio, Santiago and Estanislao was confined only to the tying of Bondoc’s hands and feet, on suspicion for robbery. When the appellant arrived at the scene, he took sole charge, tortured the victim and buried him alive. The policemen found no basis for charging the other helpers for the death of the victim. In fine, the appellant cannot invoke as basis for his acquittal the minor and inconsequential involvement of the helpers. We affirm the findings and disquisitions of the Court of Appeals on this matter, viz: Anent the first assignment of error, appellant contends that the trial court erred when it totally disregarded and ignored the March 15, 1995 Decision of the Regional Director of the Philippine National Police Command III (PNP RECOM 3) in the administrative case filed by the appellant’s mother, Ma. Antoinette Luciano, against P/Insp. Romeo Layug and SPO4 Leonardo de Leon of the Magalang Police Station, wherein it found as haphazard and irregular the investigation conducted by the aforementioned officers involving the death of Danilo Bondoc. We do not subscribe to accused-appellant’s urgings. Precisely, in due course of this case, accused-appellant had moved for a reinvestigation in order “to determine who are the real culprits who killed the 12-yr.-old boy,” which the trial court granted without objection from the prosecution. During the reinvestigation, the statements of the accused-appellant, together with those of his witnesses, namely, Joemar (sic) Basa and Oliver Santos, were all re-evaluated. Thereafter, 1st Assistant Provincial Prosecutor Jesus Y. Manarang stood pat on his finding that a prima facie case for murder exists only with respect to accused-appellant, and recommended that the Information dated September 2, 1994 filed against the accused ought to be maintained.[17] Fifth. The credibility of the testimonies of Manabat and Santos and the probative weight thereof were not affected by their failure to report the terrifying crime they witnessed, nor by the prosecution’s failure to present Ignacio as witness. As the Court of Appeals declared: The facts reveal that the “peryahan” workers were the only witnesses who positively identified the accusedappellant as the one responsible for inflicting the fatal wounds on the victim. The notorious behavior and influential family background of the accused-appellant were among the reasons, which prevented these witnesses from reporting the incident to the police authorities in Magalang. Since they were all transients, they opted to keep their silence until they were able to transfer to Angeles City where the authorities there were informed of the incident. SPO2 Celso de Castro of the Angeles Police even testified that when the case was to be turned over to the Magalang Police, Romeo Ignacio was afraid of accompanying them to the Magalang police station. On the other hand, reporter Jun Sia of the Central Luzon Times testified that when he asked Romeo Ignacio why he reported the incident to the Angeles Police instead of the Magalang Police, the latter replied that accused-appellant was influential in Magalang, Pampanga. What is more apparent is the fact that Romeo Ignacio and Jaime Estanislao were so afraid to appear at the preliminary investigation after having identified accused-appellant and given their respective statements on September 1, 1994. Nevertheless, the prosecution was able to present other witnesses in the persons of Francis Manabat and Rodelito Santos who initially refused to testify against the accused-appellant because they too were afraid of him. Then again, the two finally changed their minds and thereafter testified as a consequence of their desire to give justice to the victim.

A witness’ unwillingness to volunteer information regarding a particular crime due to fear of reprisal is common enough that it has been judicially declared as not affecting a witness’ credibility. Neither substantive nor procedural law requires any person witnessing a crime to immediately report the matter to the proper authorities or to give his statement thereon. Furthermore, the delay in reporting what a witness knows about a crime does not by itself render his testimony unworthy of belief if such delay has been adequately explained. It has, likewise, been held that a witness’ failure to volunteer information to law enforcement officers does not necessarily impair a witness’ credibility, and part of the reason for this is the reticence and fear of some people of getting involved in a criminal case. Accused-appellant asserts that the trial court’s acquiescence of both the testimonies of Francis Manabat and Rodelito Santos which it later found credible as against that of defense witness Rodolfo La Madrid’s rejected testimony was unfair since both testimonies were belatedly given. The threats to the lives of Francis Manabat and Rodelito Santos were apparent because their “kubols” were constructed on the land owned by the family of the accused-appellant whose place of residence was just a few meters away from the fence of the carnival grounds. On the other hand, Rodolfo La Madrid was not actually threatened by anyone from testifying, not even Romeo Ignacio, who, less than a week after the incident, left for Angeles City with his other fellow “peryahan” workers. By reason thereof, this Court agrees with the lower court when it found no cogent reason to give credibility to the belated testimony of Rodolfo La Madrid. This Court finds no credence in accused-appellant’s argument that witnesses Francis Manabat and Rodelito Santos, who are related in some manner with Jaime Estanislao and Romeo Ignacio, were actuated by improper motive in testifying against appellant. It would be very difficult to accept the averment of the defense that prosecution witnesses Francisco Manabat and Rodelito Santos, who were only 14 and 19 years old, respectively, when they testified, maliciously pointed to accused-appellant as the perpetrator of such a serious crime. Being of tender age, these two could not have survived a gruelling direct and cross-examination without being detected or exposed, had they decided to use their imagination in trying to render a detailed account of a murder. Not only did their testimonies stand the ultimate test of cross-examination but were also in consonance with the other evidence of the prosecution. It has been repeatedly held that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court. It is clear that the two had no other motive but to render justice to the victim and that of his family.[18] In sum, we find the decision of the Court of Appeals finding the appellant guilty beyond reasonable doubt for the death of Danilo Bondoc to be in accord with the evidence on record and current jurisprudence. The trial court convicted the appellant of murder without stating the qualifying circumstance attendant to the crime. The trial court also appreciated in favor of the appellant the mitigating circumstance of voluntary surrender and considered such minority as a mere mitigating circumstance. We shall then modify the decision of the trial court and the appellate court. The crime was qualified by treachery. The victim, who was barely thirteen years old, was helpless and unable to defend himself. His feet and hands were tied while the appellant mauled and kicked him, and hit him with a piece of wood.[19] The appellant was so depraved that he even electrocuted the victim by placing a live wire on the latter’s palms and burying him alive. This is borne by the autopsy report of Dr. Suzette Yalung, which indicates that the victim died because of cardiac arrest due to asphyxiation. By his detestable acts, the appellant intended to exacerbate the suffering of the victim. Hence, cruelty was attendant to the commission of the crime.[20] However, cruelty is absorbed by treachery. The trial court and appellate court also erred in appreciating the mitigating circumstance of voluntary surrender in favor of the appellant. He was arrested by the policemen not only for his involvement in the killing of the victim but also because of the warrant for his arrest for robbery, and the recommitment order issued by the RTC for escaping from the rehabilitation center. The appellate court erred, likewise, in appreciating the minority of the appellant merely as a generic mitigating circumstance. While under Article 13, paragraph 2 of the Revised Penal Code, minority is a mitigating circumstance, this provision must be construed in relation to Article 68 [21] thereof, which provides that minority is a privileged mitigating circumstance warranting the reduction of the imposable penalty by one or two degrees, depending upon the age of the accused. The minority of the accused is not merely a generic mitigating circumstance but is a privileged mitigating circumstance. Furthermore, in determining the penalty to be meted on the accused, the trial court must first consider any modifying circumstance attendant to the crime.

In this case, the appellant was seventeen years old when he committed the crime. Hence, the imposable penalty must be reduced by one degree, conformably to Article 68 of the Revised Penal Code. The imposable penalty for murder is reclusion perpetua to death under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659. One degree lower than reclusion perpetua to death is reclusion temporal, conformably to paragraph 2, Article 61,[22] in relation to Article 25 of the Revised Penal Code. To determine the minimum of the indeterminate penalty, reclusion temporal should be reduced by one degree, prision mayor, which has a range of from six (6) years and one (1) day to twelve (12) years. There being no modifying circumstances attendant to the crime, the maximum of the indeterminate penalty should be imposed in its medium period. The minimum of the indeterminate penalty should be taken from the full range of prision mayor. IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Decision of the Court of Appeals affirming the Decision of the Regional Trial Court of Angeles City, Pampanga, Branch 57, convicting the appellant Vincent Henry Chua of murder under Article 248 of the Revised Penal Code, as amended by Rep. Act No. 7659, is AFFIRMED with MODIFICATIONS. Taking into account the minority of the appellant and the absence of any other modifying circumstance attendant to the crime, he is sentenced to suffer an indeterminate penalty of from ten (10) years and one (1) day of prision mayor in its maximum period, as minimum, to fifteen (15) years of reclusion temporal in its medium period, as maximum. The appellant is ORDERED to pay the heirs of the victim, Danilo Bondoc, Fifty Thousand Pesos (P50,000) as civil indemnity; Fifty Thousand Pesos (P50,000) as moral damages; and Twenty Five Thousand Pesos (P25,000) as exemplary damages,[23] conformably to current jurisprudence. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-11074 February 27, 1960 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUFELINO ZAPATA and FERNANDICO TUBADEZA, defendants-appellants. Ernesto P. Laurel for appellant. Office of the Solicitor General A. Padilla and Solicitor General I. C. Borromeo for appellee. ENDENCIA, J.: Appeal from the decision of the Court of First Instance of Abra convicting Rufelino Zapata and Fernandico Tubadeza of the crime of murder, as principal and accomplice, respectively, and sentencing the former toreclusion perpetua, and the latter to an indeterminate penalty of from 6 years, 1 month and 11 days of prision mayor, as minimum, to 12 years, 5 months and 11 days of reclusion temporal, as maximum, both to indemnify the heirs of the deceased in the sum of P6,000. It appears from the evidence on record that on the evening of February 15, 1951, at about eight o'clock, while Fausta Tubadeza, a sexagenarian, was cutting firewood near her house at the barrio of Camcamiring, municipality of Dolores, Abra, appellants Rufelino Zapata and Fernandico Tubadeza approached her, and Zapata, after telling her "You are the old woman who bewitched my wife," repeatedly beat her with a piece of wood about 2 ½ feet long and 3 inches in diameter, on different part of her body, while Fernandico Tubadeza dragged her by the arms. Her husband Mariano Bondame, also a sexagenarian, attracted by the noise outside their house, looked out of the window and saw his wife being dragged by Fernandico Tubadeza and clubbed by Rufelino Zapata. Mariano Bondame immediately set to go down to help his wife, but Zapata met him at the stairs and threatened him bodily harm should he intervene. Bondame helplessly saw his wife being beaten and dragged towards the direction of the house of councilor Simeon Tubadeza, Bondame then went to the house of Estanislao Elvena to ask for help and followed appellants to the house of councilor Tubadeza, where he saw his wife already sprawled on the yard uttering, "I am going to die now," so he approached and embraced her. Fausta then told her husband she had been maltreated and that some of her teeth were broken. The evidence further shows that Fausta was taken to the house of councilor Tubadeza, who told appellant Zapata and one Florencio Pilor to go to Fausta's house, and upon their return they brought a bottle of wine and a bottle of oil and told the councilor, "Here are the ingredients for witchcraft that we took from her house." The councilor then wrote on a piece of paper (Exhibit A) a statement that Fausta practiced witchcraft

on Zapata's wife and had the same thumbmarked by Fausta. Likewise Bondame was forced to sign it. Fausta died that same evening at the house of councilor Tubadeza. Dr. Paterno Millare who made a post-mortem examination of Fausta's body, found that the cause of her death was: Fracture, compound, complicating, Rib 5th, postero-lateral portion, right; Hemorrhage, internal, acute; Wound, lacerated, lung, right; and Contusion, multiple and ecchymosis, abrasion evulsion, teeth, upper incisor, canine, jaw, left, and etc. Appellant Fernandico Tubadeza submitted a defense of alibi, attempting to show that on the night of February 15, 1951, he was in Bantay, Ilocos Sur, in the house of the parents of his wife; while Rufelino Zapata offered the following defense: That on the night in question, his wife Carolina Mercurio was seriously ill; that in view of the barking of dogs and whining of pigs in his yard, he went down and saw Fausta Tubadeza, who had a reputation in their barrio of being a witch, run away; that while he was chasing her, she fell face down; that when he overtook her, she confessed that he had bewitched her wife, whereupon Zapata took her to the house of councilor Simeon Tubadeza; that the latter, being a near relative of Fausta and ashamed of her admission of having practiced witchcraft, kicked her a number of times in her right side; that councilor Tubadeza then ordered appellant Zapata to fetch her husband Mariano Bondame, and when Bondame arrived and knew of his wife's admission he became angry and also kicked her a number of times on the right side, below the armpit; and that councilor Tubadeza then wrote affidavit Exhibit A whereby Fausta assumed responsibility should Zapata's wife die. By and large, the issue in this appeal is credibility of witnesses. Referring to the alibi put up by Fernandico Tubadeza, we give it little or no evidence at all not only because this kind of defense can be fittingly conceived and conveniently adjusted to suit any time and place ad libitum but that his witnesses are all his relatives. On the other hand, prosecution witnesses Salvador Turqueza, Relito Claro and Mariano Bondame positively identified and pointed him as the one who dragged the deceased while his co-defendant Rufelino Zapata clubbed her. Appellant Zapata's defense that the deceased died from the hands of Simeon Tubadeza, Florendo Pilor and her own husband Mariano Bondame, who all kicked her, is likewise unworthy of belief. Although it is true that, originally, Simeon Tubadeza and Florendo Pilor were included as defendants in the complaint filed before the justice of the peace, upon reinvestigation of the case, however, the same was dismissed as against them for lack of evidence and the fiscal had to exclude them from the information. Besides, Mariano Bondame was not among those originally indicted. It is hard to believe that Mariano Bondame, the aged husband of the deceased, would ever attempt to harm his wife, le alone kick her several times in the presence of many people, just for the flimsy reason of having admitted that she was a witch. On the contrary, Bondame positively testified that he tried in vain to rescue his wife from the hands of appellants when he saw her beaten up, only to be confronted by Zapata at the stairs and threatened with bodily harm. Zapata further contends that prosecution witnesses Salvador Turqueza and Relito Claro who testified having seen him beat the deceased on the back and on the nape, did not tell the truth because Dr. Millare contradicted them by saying that he did not find any ecchymosis, discoloration or laceration at the back and nape. We do not, however, find any inconsistency between the two versions, rather they complement each other, for while these eyewitnesses said that they saw appellant Zapata beat the deceased on the back, Dr. Millare, in his post-mortem examination found: External: The body is cold and in rigor mortis. The height is about 4 ft. and 8 inches. The weight is about 100 pounds more or less. There is presence of contusions and abrasions with ecchymosis of the left face and with avulsion of the teeth, upper incisor and canine, left upper jaw. Presence of a compound complicating fracture of the 5th rib at the right postero-lateral portion of the chest wall. Presence of contusions on the anterior portions of the legs and thighs. Internal: On opening the chest wall, there is a fracture, compound, complicating, of the 5th rib, right, posterolateral portion of the chest; with wound, lacerated on the right lung and internal hemorrhage of the right lung. There is approximately 150 cc of unclotted blood on the right chestcavity. Heart and left lung are apparently normal. which evidently shows that the deceased was beaten mercilessly not only on the head but also on different parts of the body as shown by the avulsion of the teeth, abrasions and ecchymosis on the left face, the compound fracture of the 5th rib, on the postero-lateral portion. These two eyewitnesses could not be expected to tell the exact spots where the blows had landed, considering that it was nighttime and those

fleeting moments cannot be recalled with exact precision. At all events, both witnesses are agreed that it was appellant Zapata who clubbed the deceased. The Solicitor-General points out that Fernandico Tubadeza should not be held merely as an accomplice as found by the lower court but as co-principle, because. It is to be observed that while it may be true as the trial court has stated, that "there is no showing in what manner Fernandico too part in the torture, so much so that the evidence discloses that only the accused Rufelino Zapata was provided with a club," yet the established facts that (a) Fernandico accompanied Zapata in going to the house of the deceased; (b) he held both hands of the deceased while Zapata was hitting her and (c) he pulled the deceased by the hands while Zapata continued clubbing her clearly show the existence of concert of design between the two. At any rate, even granting that there existed no previous understanding between the two appellants, yet it may be implied from the acts of Fernandico, as stated above, that they had the same unity of purpose in the execution of the act (People vs. Ging Sam, et al., 94 Phil., 139; People vs. Binasing, et al., 98 Phil., 902). We agree with the Solicitor-General. We likewise agree with his observation that evident premeditation is not present in this case, but that abuse of superior strength should be taken in its stead as the qualifying circumstance for murder, considering that the deceased was a frail and undersized woman sexagenarian. As to the aggravating circumstances of disregard of sex and age and nocturnity alleged in the information, we find that while the evidence fails to show that nighttime was purposely sought by appellants to commit the crime, it positively demonstrates that they disregarded the age and sex of the deceased, it appearing that she was a frail woman of 65, weighing only around 100 pounds and only 4 feet and 8 inches in height, while Zapata and Tubadeza were 32 and 27 years of age, respectively, when the crime was committed. On the other hand, we believe that appellants are entitled to the mitigating circumstance of lack of intention to commit so grave a wrong as that committed, as it was evident that they merely wanted to denounce her as a witch before councilor Tubadeza when she was beaten and dragged to the councilor's house, but that she received a beating more than she could take, for which she died that same evening. In addition, the mitigating circumstance of obfuscation should be appreciated in their favor, as we held in U.S. vs. Makalintal, 2 Phil., 448, and People vs. Balneg, et al., 79 Phil., 805, for it clearly appears that appellants committed the crime in the belief that the deceased had cast a spell of witchcraft upon the wife of Zapata which caused her serious illness. Considering that there are two mitigating circumstances as against one aggravating in the case, appellants are entitled to the minimum penalty prescribed by Art. 248 of the Revised Penal Code which is reclusion temporal in its maximum period. Applying the Indeterminate Sentence Law, the penalty that should be imposed is 10 years and 1 day of prision mayor as minimum, and 17 years, 4 months and 1 day of reclusion temporal as maximum. With the above modifications, the decision appealed from is affirmed in all other respects. THIRD DIVISION [G.R. No. 120853. March 13, 1997] PAT. RUDY ALMEDA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION FRANCISCO, J.: This is a case of homicide. Petitioner Rudy Almeda was charged with murder before the Regional Trial Court (RTC) of Tandag, Surigao del Sur in an information which reads as follows: "That on the 29th day of November 1988, at about 7:30 o'clock in the evening, more or less, inside Bautista's Food and Snack Inn at Capitol Hills, Tandag, province of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named, with intent to kill, treachery and evident premeditation, did, then and there, willfully, unlawfully and feloniously shoot several times one, CBL Leo Pilapil Selabao, PC Member, with the use of a caliber 45 nickled pistol, thereby inflicting upon the latter the following wounds, to wit: 1. Gunshot wound 1 cm. in diameter with point of entry 1 cm. lateral to the 6th thoracic cavity, penetrating lung thru and thru, with point of exit 2 cm. below the left nipple. 2. Gunshot wound 1 cm. in diameter with point of entry at midscapular area left at the level of 4th thoracic vertebra, penetrating the thoracic cavity, penetrating the heart thru and thru, with point of exit at level of ziphoid process.

3. Gunshot wound 1 cm. in diameter with point of entry 3 cm. left lateral to the 3rd thoracic vertebra, posterior chest wall penetrating the thoracic cavity, penetrating the mediatinum thru and thru. Slug lodged skin deep. 4. Gunshot wound 1 cm. in diameter with point of entry 4 cm. from midline right occipital area thru and thru with point of exit preauricular area right. 5. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) left infra auricular area thru and thru with point of exit at the right side of the neck 2 cm. beside the oricoid cartilage. 6. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) with point of entry at left side of neck at level of 4th cervical vertebra, tangential with point of exit at left side of the neck at the level of 5th cervical vertebra (about 4 cm. from point of entry), which wounds have caused the instantaneous death of CBL Leo P. Salabao, to the damage and prejudice of his heirs in the following amounts: P50,000.00 — as life indemnity of the victim; 10,000.00 — as moral damages; and 10,000.00 — as exemplary damages. CONTRARY TO LAW. (In violation of Art. 248 of the Revised Penal Code.)"[1] During arraignment, petitioner pleaded not guilty. After trial, the lower court [2] convicted petitioner of homicide only and appreciated in his favor two mitigating circumstances. [3] The prosecution filed a motion for reconsideration with regard to the appreciation of the mitigating circumstances. On July 23, 1992, the lower court granted the motion and modified its earlier decision. The dispositive portion of the modified judgment reads: WHEREFORE, finding accused Rudy Almeda GUILTY beyond reasonable doubt of HOMICIDE, and there being neither mitigating nor aggravating circumstances which attended the commission of the offense, but applying the Indeterminate Sentence law, the Court hereby sentences him to suffer the indeterminate penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to pay the heirs of the deceased victim PC Cbl. Leo Salabao the sum of Fifty Thousand (50,000) Pesos as life indemnity and ten thousand (10, 000) Pesos as moral damages, without subsidiary imprisonment in case of insolvency; and to pay the cost. The bail bond put up by the accused for his provisional liberty is ordered cancelled. SO ORDERED.[4] On appeal, the Court of Appeals (CA) affirmed the modified judgment.[5] Hence this petition where petitioner imputes error to the appellate court in (1) not finding that he acted in defense of strangers, and (2) in failing to appreciate in his favor the mitigating circumstances of sufficient provocation and voluntary surrender. The anterior facts ably supported by evidence on record are summarized by the CA as follows: On November 29, 1988, at approximately 5:00 o'clock in the afternoon, Julian Herrera, Jr., together with his two nephews Donato Salabao and PC Constable Leo Salabao arrived at the Bautista's Snack Inn to fetch Susonte Montero who lived in the same town with Herrera. (TSN, January 22, 1992, p. 6) Herrera asked Donato to enter the snack inn and inform Montero that they were ready to head home. However, Montero was in the middle of a drinking spree with Vice Governor Acosta and the latter's companions, one of whom was Almeda who was the Vice Governor's bodyguard. Upon the invitation of Vice Governor Acosta, Herrera joined the drinking session and left his nephews in the service jeep. (TSN Jan. 23, 1992, p. 5) After about an hour, the Salabao brothers alighted and sought shelter in the covered porch of the Bautista's Snack Inn. (TSN, Jan. 23, 1992, p. 6) Shortly thereafter, Felix Amora, who was among the drinking companions of the Vice Governor and the then Community Development Officer and Civil Defense Coordinator, stepped out of the inn and saw the Salabao brothers. Irked because Cbl. Leo Salabao failed to salute him, Amora confronted the former and ordered Cbl. Salabao to salute him. Cbl. Salabao countered that since Amora was not known to him as a PC officer and was in civilian clothes he was not compelled to salute him.(Ibid.) Their argument got the attention of Herrera who went out to pacify them. He then asked Amora and the Salabao brothers to get inside. (TSN, Jan. 22, 1992, p. 10) Once inside, Cbl. Salabao sat at the right side of Almeda while Amora sat opposite Almeda at the left side of Herrera. (TSN, Jan. 22, 1992, p. 12-14) Donato Salabao, on the other hand, sat near the counter. (TSN, Jan. 23, 1992, p. 7) Unknown to the Salabao brothers, during the past hour, Herrera had himself been arguing with Vice Governor Acosta because of the latter's accusation that Herrera was involved in anomalous transactions. (TSN, Jan. 22, 1992, p. 7-9) A short time after the Salabao brothers had seated themselves, Herrera's argument with Acosta resumed. At this juncture Acosta stood up, presumably to pay for the beer he had ordered, and whispered something to

Almeda. Almeda promptly grabbed the barrel of the armalite rifle which Cbl. Salabao carried with him and pushed it down. (TSN, Jan . 22, 1992, p. 16; TSN, Jan. 23, 1992, p. 8) Simultaneously, Almeda pulled out his .45 caliber pistol pointed it at Cbl. Salabao's head and shot the latter in the left temple. As Cbl. Salabao staggered Almeda fired five more shots felling (sic) the former. (TSN, Jan. 22, 1992, p. 20-21; TSN, Jan. 23, 1992 p. 12) After which Almeda picked up Cbl. Salabao's armalite, cocked it and than (sic) pointed it at Donato Salabao who immediately raised his hands. (TSN, Jan. 23, 1992 p. 13) Almeda then left along with the Vice Governor and his companions. The following day, at approximately 7:00 o'clock in the morning, Almeda was arrested by a group of PC Constables. (TSN, Feb. 18, 1992 p. 3-4)[6] The petition is not impressed with merit. A party who invokes the justifying circumstance of defense of strangers has the burden of proving by clear and convincing evidence the exculpatory cause [7] that would save him from conviction. He must rely on the strength of his own evidence and not on the weakness of the evidence for the prosecution for even if the latter's evidence is weak, it cannot be disbelieved[8] and will not exculpate the former from his categorical admission as the author of the killing. The Court is convinced upon scrutiny of the evidence that petitioner failed to discharge this burden. Article 11 (3) of the Revised Penal Code provides: "Justifying Circumstance. — The following do not incur any criminal liability: 3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this article are present and that the person defending be not induced by revenge, resentment, or other evil motive " This circumstance of defense of strangers has three requisites:[9] (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) the person defending be not induced by revenge, resentment, or other evil motive. The first and crucial requisite for defense of strangers to prosper is absent in this case. Unlawful aggression presupposes an actual, sudden and unexpected attack or imminent danger on the life or limb of a person.[10] The mere cocking of the M- 14 rifle by the victim (Cbl. Salabao) without aiming the firearm at any particular target, is not sufficient to conclude that the life of the Vice-Governor, Herrera or even of Amora was in imminent danger. A threatening or intimidating attitude per se does not constitute unlawful aggression.[11] Even a mysterious whisper poses no danger. There is nothing from the act of the victim in trying to stand up, from which the Court may infer that the life of the person (the Vice Governor) whom petitioner was allegedly protecting, was under actual threat or attack from the victim. Besides, assuming that such act of the victim posed an imminent danger, petitioner was able to check if not neutralize such danger, when with a lightning speed, he held and pointed downward the rifle of the former and simultaneously poked his .45 caliber at the victim's head. Moreover, when the victim fell down and staggered after petitioner shot him pointblank in the head, any supposed unlawful aggression by the former, assuming that it has begun, had ceased. If so, the one making the defense has no more right to kill or even wound the former aggressor.[12] Accordingly, petitioner's contention that "he was forced to fire five more shots to defend the life of the Vice-Governor belongs to the realm of fantasy. "[13] Moreover, the number, location and severity of the fatal wounds suffered by the victim belie the claim of defense of stranger but is indicative of a determined effort to kill.[14] The victim was hit on the vital parts of his body — head, lungs, heart, chest and neck.[15] With the absence of unlawful aggression that can be attributed to the victim, it becomes unnecessary to determine the remaining requisites for they obviously have no leg to stand on. Thus, in this case, the defense of stranger will not lie, complete or incomplete.[16] On petitioner's claim that he voluntarily surrendered, the evidence on record disclosed otherwise. Military men acting on order of their superior officer were tasked to look for and apprehend petitioner. When they spotted him, they surrounded and captured petitioner. Moreover, before he was captured, petitioner could have easily surrendered to the Vice Governor or to the police station which is a few blocks from his house. Yet, the record is bereft of any evidence that he made any effort to do so. The Court does not also agree with petitioner's claim that he is entitled to the mitigating circumstance of "sufficient provocation on the part of the offended party immediately preceded the act." [17] To avail of this benefit, it must be shown that the provocation originated from the offended party, in this case, the victim. However, the records will attest that it was not the victim who provoked the heated confrontation between the Vice-Governor and Herrera, as he has nothing to do with their discussions. Neither was it shown that the victim provoked petitioner into committing the felonious act. Petitioner and the victim do not know each

other, they never met before that incident, and the victim never aimed his rifle at petitioner. They merely sat beside each other which could hardly be sustained as a provocative act. Moreover, any purported provocation by the victim on Amora, when the former refused to salute the latter outside the restaurant, could not be considered as a provocation on petitioner since the latter was not even aware of the saluting incident between the victim and Amora. Thus, the benefit of the mitigating circumstances under Article 13 (4) of the Revised Penal Code is unavailable to petitioner. At any rate, the errors assigned by petitioner assail the factual findings and evaluation of witness's credibility by the trial court. It is a settled tenet, however, that the findings of fact of the trial court is accorded not only with great weight and respect on appeal but at times finality, especially when such findings are affirmed by the CA and provided it is supported by substantial evidence on record. [18] Upon examination of the evidence in this case, the Court is convinced that no significant facts or circumstances were overlooked or disregarded by the courts below which if considered would warrant a reversal of the findings and vary the outcome hereof.[19] With respect to the issue of credibility of witnesses, the appreciation and assessment thereof is best left to the trial court judge[20] having the unique opportunity of observing that elusive and incommunicable evidence of the witness' deportment on the stand, a privilege denied to the appellate court.[21] Again, there is nothing in the record that would indicate material inconsistencies or even improbabilities in the testimony of prosecution's witnesses. Since no arbitrariness or any cogent reasons were cited that would call for the reversal of the lower court's evaluation of credibility of witness, such evaluations bind this court. [22] WHEREFORE, premises considered, the decision of the Court of Appeals affirming the decision of the trial court convicting Rudy Almeda of homicide and sentencing him to suffer an indeterminate penalty of eight (8) years and one ( 1 ) day of prision mayor, as minimum to fourteen (14) years, eight (8) months and one ( 1 ) day of reclusion temporal, as maximum and to pay the heirs of the victim Leo Salabao, a total of P60, 000.00 as indemnity and damages is hereby AFFIRMED in toto. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 112721 March 15, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EFREN RIVERO, accused-appellant. DAVIDE, JR., J.: Accused-appellant Efren Rivero appeals from the decision of 31 August 1993 of the Regional Trial Court (RTC), Branch 32, at Pili, Camarines Sur, 1 finding him guilty beyond reasonable doubt of the crime of murder and sentencing him to: suffer the penalty of Reclusion Perpetua, with all the accessories of the law, to indemnify the heirs of Leon Gutierrez the sum of P50,000.00 and the further sum of P5,000.00, as and for funeral expenses, with costs. He was tried under an information 2 which was filed on 12 April 1983 and whose accusatory portion reads as follows: That on or about the 18th day of March, 1982 at Barangay San Ramon, Municipality of Lagonoy, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, with treachery and evident premeditation, armed with a bolo, did then and there wilfully, unlawfully and feloniously assault, attack and hack with said bolo, one Leon Gutierrez, who as a result thereof suffered several fatal hack wounds on his head and other vital parts of his body which directly caused his death. The facts of the case duly established by the evidence for the prosecution are correctly summarized by the trial court in the challenged decision as follows: Efren Rivero is the son-in-law of the deceased Leon Gutierrez; on March 18, 1982 at about 11:30 o'clock in the morning, in San Ramon, Lagonoy, Camarines Sur, while Leon Gutierrez was walking along a path, with Demetrio San Juan ahead of him, Efren Rivero, from behind Leon Gutierrez, attacked the latter with a bolo, the first bolo attack hitting the right shoulder of Leon, and the latter, on facing his assailant, received numerous hack wounds from Efren, totalling 13 incised wounds in all, detailed in Exh. "A", the autopsy report of Dr.

Galan; Leon fell dead on the site there he was attacked by Efren Rivero; while the attack on Leon was taking place, Demetrio San Juan moved back and for fear of being attacked by Efren, fled from the scene of the incident, and immediately reported the matter to Eufemia Gutierrez, the wife of Leon, who thereupon went to the place of the incident, finding Leon dead on the path, some 30 meters away from the house of Efren Rivero, and with the help of relatives and friends, brought the dead Leon to their house; the next day, Leon was autopsied by Dr. Galan, whose findings are detailed in Exh. "A"; the first bolo wound administered by Efren on Leon's right shoulder immediately disabled Leon, preventing him from offering any resistance at all. 3 The accused-appellant, on the other hand, claimed self-defense. According to him, at or about 8:00 a.m. of 18 March 1982 he went to the house of the barangay captain of Lojo, Lagonoy, to settle his case with his wife Myrna Gutierrez, a daughter of Leon Gutierrez, whom he caught in flagrante with her paramour, Danilo Delfino, in their conjugal home. Myrna did not come, but Leon did. The accused-appellant told Leon that he will not live anymore with his daughter because she committed adultery. Leon reacted by warning him to be careful because he would kill him before the end of the day. The accused-appellant was frightened, and he returned home, arriving at about 9:00 a.m. At about 11:00 a.m., while he was inside his house, Leon Gutierrez, who was then armed with a bolo, challenged him to get out because he was going to kill him; as a result, he was struck with fear. Then, Leon forced open the door and entered his house. Due to his fear, the accusedappellant also got a bolo and told Leon not to come any nearer, but the latter cornered him against the wall and hacked him. Leon was not able to hit him. He then hacked Leon hitting the latter on the right shoulder thereby immediately disabling him. He could not recall how many more times he hacked the victim because at that time he had already lost control of his mental faculties. He thereafter surrendered to the police authorities. 4 The trial court accepted the version of the prosecution. It discredited the version of the accused-appellant thus: Upon the other hand, this Court cannot believe the version of Efren Rivero that he killed Leon Gutierrez in self defense, having been attacked first by Leon in his own house, which is preposterous, first: because nothing could have been easier than to have established this fact BY SHOWING TO THE POLICE at the time he surrendered, THE BLOOD STAINS THAT WOULD HAVE BEEN VISIBLE INSIDE HIS HOUSE, were it true that the wounding of Leon occurred inside Efren's house; second, Demetrio San Juan testified that the attack occurred at the pathway, and the deceased was found near the pathway, and 30 meters away from Efren's house. 1. . . . IN FINDING: THE ACCUSED-APPELLANT EFREN RIVERO GUILTY BEYOND REASONABLE DOUBT FOR THE CRIME OF MURDER. 2. . . . IN NOT APPRECIATING THE CLAIM OF THE. ACCUSED-APPELLANT THAT HE ACTED IN SELF DEFENSE WHEN THE INCIDENT HAPPENED. 3. . . . IN GIVING FULL CREDENCE TO THE TESTIMONY OF THE LONE EYE WITNESS FOR THE PROSECUTION. 5 and submits that the lone issue to be resolved is whether he acted in complete self-defense. Having admitted that he killed his father-in-law, Leon Gutierrez, the burden of the evidence that he acted in self-defense was shifted to the accused-appellant. It is hornbook doctrine that when self-defense is invoked, the burden of evidence shifts to the appellant to show that the killing was justified and that he incurred no criminal liability therefor. He must rely on the strength of his own evidence and not on the weakness of the prosecution's evidence, for, even if the latter were weak, it could not be disbelieved after his open admission of responsibility for the killing. He must prove the essential requisites of self-defense, to wit: (a) unlawful aggression on the part of the victim, (b) reasonable necessity of the means employed to repel the aggression, and (c) lack of sufficient provocation on the part of the accused. 6 The accused-appellant maintains that he was able to prove all these requisites. The victim, armed with a bolo, came to his house and challenged him to a fight and, receiving no positive response from him, the victim thereafter forced himself into his house. 7 The use of a bolo against a bolo-wielding aggressor was a reasonable means to repel the aggression. Finally, he insists that there was absolutely no provocation on his part; he was attacked inside his house and the killing took place therein. We are not persuaded. The accused-appellant has spun an incredible tale. The victim was found dead some thirty meters away from the house of the accused-appellant. 8 This place corresponds to that indicated by prosecution witness Demetrio San Juan as the spot where the victim was attacked by the accused-appellant. There is no credible evidence that the victim was able to run away from the house; besides, with the thirteen wounds inflicted on

him, it was physically impossible for the victim to have done so. Then too, the accused-appellant presented no evidence that bloodstains were found in his house although, as correctly observed by the trial court, if indeed there were bloodstains, he could have pointed them out to the police authorities immediately after he surrendered to them since they immediately came to the scene of the incident and were even able to recover the fatal bolo. Moreover, the alleged bolo of the victim was not recovered. It is indubitable to us that the victim was unarmed and was not killed inside the accused-appellant's house. Dr. Wilfredo Galan declared that the victim's wound at the back may have been inflicted without his being forewarned of the attack. Thus: Q So far, the wound that was directed at the back, can it be possible that the deceased is about to face or backtrack? A The first theory is that, the victim is already on his turning back of the body and the victim does not know anything. That is why there was a striking area at the back, and he had to face the assailant. Q But the victim could have avoid or still defend the attack by running away if he do it if he is not also intending to face the assailant? A The victim is already out of his senses. That is why I have made that theory. 9 This wound at the back strengthens the testimony of prosecution witness Demetrio San Juan that the victim was hacked from behind with a sharp bladed long bolo called "ginogon" by the accused-appellant who was following the victim while the latter was walking. 10 The victim sustained thirteen hack wounds while the accused-appellant suffered no harm or injury despite the fact that the former was bigger than him. 11 It is an oft-repeated rule that the presence of a large number of wounds on the part of the victim negates selfdefense; instead, it indicates a determined effort to kill the victim. 12 On the basis of the evidence established by the prosecution and the nature of the injuries inflicted on the victim and considering that the accused-appellant sustained no harm or injury, we are convinced that the victim was attacked from behind; suddenly, unexpectedly, and without warning. There was, therefore, treachery in the commission of the crime because the accused-appellant employed means, method, or form in its execution which tended directly and especially to insure its execution without risk to himself arising from the defense which the victim might make. 13 Treachery and evident premeditation are alleged in the information as qualifying circumstances; however, only treachery, which is sufficient to qualify the killing to murder as defined and penalized in Article 248; of the Revised Penal Code, has been duly established. On the other hand, we appreciate in the accused-appellant's favor the mitigating circumstances of voluntary surrender and of sufficient threat on the part of the victim which immediately preceded the killing. 14 It was duly established that immediately after the incident the accused-appellant surrendered to the police authorities at the Lagonoy Police Station. 15 And, as could be inferred from his testimony, he killed his fatherin-law because at the house of the barangay captain of Lojo at 8:00 a.m. of 18 March 1982 after he told the victim that he cannot live anymore with his adulterous wife whom he caught in flagrante with her paramour in their conjugal home, the victim warned him to be careful because he would kill the latter before the end of the day. The accused-appellant could have interpreted this warning as a serious threat and may have prompted him to decide to eliminate his father-in-law before he could carry out such threat. Nonetheless, any of the two mitigating circumstances was offset by the alternative circumstance of relationship. 16The remaining mitigating circumstance would then authorize the imposition of the minimum period of the prescribed penalty. Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion temporal in its maximum period to death, a penalty which is comprised of three distinct penalties, viz., a divisible penalty and two indivisible penalties, each of which, pursuant to Article 77 of the Revised Penal Code, shall form a period. Conformably with Article 64 of the said Code, the proper imposable penalty in this case would thus be reclusion temporal in its maximum period. Since the accused-appellant is entitled to the benefits of the Indeterminate Sentence Law, he could be sentenced to an indeterminate penalty whose minimum shall be within the range of the penalty next degree lower to that prescribed for the offense proved and whose maximum shall be within that so prescribed, taking into account the modifying circumstances. This penalty next degree lower is prison mayor in its maximum period to reclusion temporal in its medium period. The accused-appellant could thus be sentenced to an indeterminate penalty ranging from ten (10) years and one (1) day of prison mayor maximum as minimum to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal maximum as maximum. IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered AFFIRMING the challenged decision of Branch 32 of the Regional Trial Court of Camarines Sur in Criminal Case No. P-2100 (formerly T-198) subject

to the modification of the penalty which is hereby reduced from reclusion perpetua to an indeterminate penalty of imprisonment ranging from Ten (10) years and One (1) day of prison mayor maximum as minimum to Seventeen (17) years, Four (4) months, and One (1) day of reclusion temporal maximum as maximum. Costs against the accused-appellant. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12883 November 26, 1917 THE UNITED STATES, plaintiff-appellee, vs. CLEMENTE AMPAR, defendant-appellant. Filemon A. Cosio for appellant. Acting Attorney-General Paredes for appellee. MALCOLM, J.: A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of Occidental Negros. Roast pig was being served. The accused Clemente Ampar, a man of three score and ten, proceeded to the kitchen and asked Modesto Patobo for some of the delicacy. Patobo's answer was; "There is no more. Come here and I will make roast pig of you." The effect of this on the accused as explained by him in his confession was, "Why was he doing like that, I am not a child." With this as the provocation, a little later while the said Modesto Patobo was squatting down, the accused came up behind him and struck him on the head with an ax, causing death the following day. As the case turns entirely on the credibility of witnesses, we should of course not interfere with the findings of the trial court. In ascertaining the penalty, the court, naturally, took into consideration the qualifying circumstance of alevosia. The court, however, gave the accused the benefit of a mitigating circumstance which on cursory examination would not appear to be justified. This mitigating circumstance was that the act was committed in the immediate vindication of a grave offense to the one committing the felony. The authorities give us little assistance in arriving at a conclusion as to whether this circumstance was rightly applied. That there was immediate vindication of whatever one may term the remarks of Patobo to the accused is admitted. Whether these remarks can properly be classed as "a grave offense" is more uncertain. The Supreme court of Spain has held the words "gato que arañaba a todo el mundo," "landrones," and "era tonto, como toda su familia" as not sufficient to justify a finding of this mitigating circumstance. (Decisions of January 4, 1876; May 17, 1877; May 13, 1886.) But the same court has held the words "tan landron eres tu como tu padre" to be a grave offense. (Decision of October 22, 1894.) We consider that these authorities hardly put the facts of the present case in the proper light. The offense which the defendant was endeavoring to vindicate would to the average person be considered as a mere trifle. But to this defendant, an old man, it evidently was a serious matter to be made the butt of a joke in the presence of so many guests. Hence, it is believed that the lower court very properly gave defendant the benefit of a mitigating circumstance, and correctly sentenced him to the minimum degree of the penalty provided for the crime of murder. lawph!1.net Judgment of the trial court sentencing the defendant and appellant to seventeen years four months and one day of cadena temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Modesto Patobo, in the amount of one thousand pesos, and to pay the costs is affirmed, with the costs of this instance against the appellant. So ordered. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12655 June 30, 1960 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FABIAN ULITA, ET AL., defendants. SANTOS ULITA, SERAPIO ULITA, BERNARDINO ULITA, ALFREDO ULITA, and ISABELO PACAMALAN,appellants.

Singson and Singson Law Office for appellants. 1st Asst. Solicitor General Guillermo E. Torres and Solicitor Antonio A. Torres for appellee. BARRERA, J.: Fabian Ulita, Santos Ulita, Alvaro Ulita, Jose Ulita, Serapio Ulita, Bernardino Ulita, Alfredo Ulita, Isabelo Pacamalan, Eduardo Malana, Hipolito Asuncion, Joaquin Gammad, and Fausto Caballes, were charged in the Court of First Instance of Cagayan, with the crime of murder for the killing of Guillermo Tagayuna. Eduardo Malana, Hipolito Asuncion, Joaquin Gammad, and Fausto Caballes were later excluded from the information, on the motion of the Fiscal, for lack of evidence. Fabian Ulita pleaded guilty upon arraignment. After trial, the court found Santos Ulita, Serapio Ulita, Bernardino Ulita, Alfredo Ulita, and Isabelo Pacamalan guilty of the crime charged, but finding one mitigating and no aggravating circumstance, sentenced each of them in accordance with the Indeterminate Sentence Law, to suffer the penalty of 10 years and 1 day of prision mayor, as minimum, to 17 years, 4 months and 1 day of reclusion temporal, as maximum, and to pay 1/4 of the costs. Jose Ulita and Alvaro Ulita were acquitted. Fabian Ulita, having pleaded guilty and voluntarily surrendered, was sentenced to suffer the penalty of 4 years, 2 months and 1 day of prision correccional, as minimum, to 10 years and 1 day of prision mayor, as maximum, and to pay 1/4 of the costs. Fabian did not appeal. On their part, Santos Ulita, Serapio Ulita, Bernardino Ulita, Alfredo Ulita, and Isabelo Pacamalan appealed to the Court of Appeals. However, said court, in its resolution of April 10, 1957, elevated the case to this Court, in view of its finding that the murder committed by appellants was aggravated by evident premeditation, without any mitigating circumstance to offset the same and, therefore, the penalty imposable is at least life imprisonment which, under existing law, it is not authorized to impose. Pending appeal with the Court, counsel for appellants submitted a motion for new trial based on newlydiscovered evidence consisting of the affidavits of the prosecution witnesses Macario Constantino and Concepcion Ulita, retracting from the testimony they had given in the lower court, action on which was deferred by resolution of this Court of January 19, 1959, until the case can be considered on the merits. These affidavits, we now find, are without merit. In them, the affiants merely recites that their testimony in open court was not true and that it was given only because they (the two recanting witnesses) were included in two previous cases of malicious mischief and less serious physical injuries filed by the Ulitas against the deceased Guillermo Tagayuna and more than 25 others. It appears, however, that these two minor cases were filed, the first on August 18, 1952 and the other on September 2, 1952 or more than five (5) months before the killing of Tagayuna, and in the first, the defendants were acquitted on October 17, 1952. Besides, not all the present accused were complainants in those two cases. The pretense, therefore, that these two witnesses testified as they did during the trial of the case only because they were "mad at the accused" is too flimsy to merit serious consideration. In the case of People vs. Farol, et al., (G. R. No. L-9423 and L-9424 prom. May 30, 1958),we held that— . . . resort to the affidavits of recantation ... is becoming rather common. Appellate courts must therefore be wary of accepting such affidavits at their face value, always bearing in mind that the testimony which they purport to vary or contradict was taken in an open and free trial in the court of justice and under conditions calculated to discourage and forestall falsehood, those conditions being as pointed out in the case of U. S. vs. Dacir (26 Phil. 507) that such testimony is given under the sanction of an oath and of the penalties prescribed for perjury; that the witness' story is told in the presence of an impartial judge in the course of a solemn trial in an open court; that the witness is subject to cross-examination, with all the facilities afforded thereby to test the truth and accuracy of his statements and to develop his attitude of minds towards the parties, and his disposition to assist the cause of truth rather than to further some personal end; that the proceedings are had under the protection of the court and under such conditions as to remove, so far as is humanly possible, all likelihood that undue or unfair influences will be exercised to induce the witness to testify falsely; and finally that under the watchful eye of a trained judge his manner, his general bearing and demeanor and even the intonation of his voice often unconsciously disclose the degree of credit to which he is entitled as a witness.' Unless there be special circumstances which, coupled with the retraction of the witness, really raise a doubt as to the truth of the testimony given by him at the trial and accepted by the trial judge, and only if such testimony is essential to the judgment of conviction so much so that its elimination would lead the trial judge to a different conclusion, a new trial based on such retraction would not be justified. Otherwise, there would never be an end to a criminal litigation and the administration of justice would be at the mercy of criminals and the unscrupulous. . . . . And in the case of People vs. Ubiña et al., (97 Phil., 515), we stated that "it would be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had

given them later on change their mind for one reason or another, for such a rule would make solemn trials a mockery and place the investigation of truth at the mercy of unscrupulous witnesses." This Court has, likewise, invariably and consistently refused to entertain and grant motions for new trial based on affidavits of retraction by witnesses, because of the inherent improbability of the alleged new versions of the commission of the crime, as well as the easiness and facility with which such affidavits are obtained (People vs. Monadi, et al., 97 Phil., 575; People vs. Aguipo, G. R. No. L-12123-24, prom. July 31, 1958), and the probability of their being repudiated later (People vs. Galamiton, G. R. No. L-6302, prom. August 25, 1954). It is not also improbable that said schemes are conceived and carried out for a consideration, usually monetary. (People vs. Francisco, 94 Phil., 975.) We find, therefore, no reason for seriously considering, much less acceding, to the appellant's motion for new trial. Coming now to the merits of the case, according to the evidence and as found by the trial court, at about 9 o'clock in the morning of January 24, 1953, Guillermo Tagayuna and Macario Constantino went to the fields at Pallagao, Gattaran, Cagayan. While Tagayuna, followed by Constantino at a distance of seven (7) meters, was walking along a narrow trial where there were plenty of tall grasses called tanglares, Santos Ulita, armed with a bolo, suddenly appeared from behind the grasses and hacked Tagayuna's right arm. Then Fabian Ulita, Bernardo Ulita, and Alvaro Ulita who also were hiding among the tall grasses rushed at him from behind, on the left side, and hacked his back with their bolos. Alfredo Ulita then hacked his right leg, causing him to fall to the ground in kneeling position. While in this position, Serapio Ulita, Jose Ulita, and Isabelo Pacamalan rushed at him. Jose then hacked his left arm and his head, while Serapio and Isabelo hacked his right arm. The boloes used by the accused were of the kind known as calasiaos. Tagayuna shouted for help. Constantino did likewise, having been stunned by the suddenness of the attack, but nobody came to help them. Constantino then ran away in the direction of the road. Upon seeing him, Fabian and Alvaro, with boloes in their hands, chased him, but upon reaching the curve of the road, they gave up. Constantino then turned around and at this instant, he saw the accused hacking Tagayuna while they encircled him. The latter died as result of the wounds inflicted on him by the accused. Thereafter, the accused fled. After the killing, police corporal Isidro Ventura of Gattaran repaired to the scene of the crime. He saw the dead body of Tagayuna in the rice field. He prepared a sketch (Exh. "N") of the scene, and found within a radius of 5 meters around said body ("1" in Exh. "N") ten (10) fresh footprints. A bolo (Exh. "I"), which was one of the 3 boloes entrusted by Santos Ulita and his brothers to Meliton Daniel in San Vicente, Gattaran shortly after the incident, and surrendered by the latter to Chief of Police Andres Bucaling, was discovered to have dried blood strains on its blade. Appellants were apprehended under a warrant of arrest only a week later as they fled to, and hid in different places after the commission of the crime. A post-mortem examination of the cadaver of Tagayuna made by Dr. Antonio Nolasco showed that the victim sustained 21 wounds in various parts of his body. (Exhs. "O", "P", and "P-1".) Of these wounds 14 were inflicted on the frontal side and 7 on the dorsal side. Wound No. 3 (Exh. "P") inflicted frontally on the parietal region, Wound No. 15 (Exh. "P-1") inflicted dorsally on the neck, cutting the principal veins and arteries, and Wound No. 16 (Exh. "P-1") also inflicted on the neck, were all necessarily mortal. Wound No. 7 (Exh. "P"), completely severed the middle fingers of the victim, and Wound No. 8 (Exh. "P") completely severed his left forearm. All these wounds appear to have been inflicted from different sides and directions of the body of the victim and by more than one person. Dr. Nolasco attributed the death of Tagayuna to severe hemorrhage. Appellants Serapio, Santos, Alfredo, and Bernardino are brothers; while appellant Isabelo Pacamalan is their brother-in-law. (The other accused who were acquitted, Jose and Alvaro are also their brothers, while Fabian, who pleaded guilty, is the son of Jose.) There was a standing controversy between the Ulita family and Tagayuna over the ownership of a parcel of rice land in Pallagao, Gattaran. The version of the defense regarding the incident is as follows: On January 24, 1953, at about 7 o'clock in the morning, Fabian Ulita went to harvest palay on the land leased to him by one Servillano. He was followed later by 6 women, relatives of his. He was harvesting on the northern part of the ricefield near a path, 30 meters away from the women when he saw Tagayuna approaching. Upon seeing him, Fabian unsheathed his bolo and stuck the same to the ground. Tagayuna went near him saying; "What, are you harvesting here also loco?" to which Fabian answered: "I am harvesting my little ripe palay, Tata. I have to harvest a little because you have harvested to one I planted on the controverted land." Tagayuna then retorted: "You did not plant anything there, loco" and Fabian replied: "Why not? You had it harvested. "Infuriated by Fabian's reply, Tagayuna rushed at him with a club he was holding at the time. Instantly, Fabian picked up his bolo and hit Tagayuna's right arm below the right wrist,

causing the latter to drop his club. Then he delivered blows which Tagayuna tried to parry with his hands; then he hacked him several times on his left arm until it was severed and gave him several times on his left arm until it was severed and gave him a "backhand stroke" which hit Tagayuna on the head, neck, and back. Then he hit him twice on the knee, severing the same on the second blow and causing the minor wounds described in Exhibit "O", all done in the heat of anger. When Margarita Natividad (wife of Alfredo Ulita) and her companions saw Fabian hacking the deceased, they ran away, and while running, they saw 4 PC soldiers on the road. When asked why she was running, Margarita answered: "Fabian and Guillermo are fighting." After hacking Tagayuna to death, Fabian saw Constantino and thereupon chased him. After chasing him, Fabian walked through the rice fields. Thereafter, he saw 4 PC soldiers. He then surrendered to them saying: "I am coming to surrender. I killed Imong," at the same time delivering his bolo (Exh. "G") to Corporal Malana. While Fabian was being guarded by Caballes, Malana saw more than 30 followers of Tagayuna, armed with boloes, walking toward them. He then collected 5 boloes from them. Not long thereafter, Benita Mamuad, wife of Tagayuna, arrived and went directly to Fabian saying. "Vulva of your mother Fabian, you killed my husband, I will kill you also." Then she picked up some hardened earth and threw it at Fabian, angrily shouting: "Vulva of your mothers, the Ulitas. Even women, children and men, I will send all of you to jail." She also uttered bad words to the PC soldiers. Appellants defense is alibi, as follows: Isabelo Pacamalan testified that when Fabian Ulita killed Tagayuna, he was at home lulling his baby to sleep; that it was his wife who informed him about the killing; that in the afternoon of the same day, Serapio Ulita dropped at his house and asked him to go with him to town (Gattaran), to advise Atty. Mandac regarding the incident; and that the latter told him not to return to Pallagao for several days, to give the followers of Tagayuna time to cool off. Serapio Ulita, alleged that he was at home convalescing from an illness ("pasma"); that he learned about the incident from his wife, who got the information from Margarita Natividad; and that as he was afraid to remain in his house, he went to town (Gattaran) with his brother-in-law, Isabelo Pacamalan, and saw Atty. Mandac, who advised them to stay away for a while, which they did, until their arrest a week later. Santos Ulita declared that he was cooking when Margarita Natividad informed him about the incident and warned him not to go down their house; that his wife, Juanita Baraquio, was then in bed, as she had delivered 5 days prior to the incident; and that at 2 o'clock in the afternoon of the same day, his brother Jose, Bernardino, and Alfredo fetched him, and they went to Tuguegarao for the purpose of informing Atty. Singson that Fabian had killed Tagayuna, returning therefrom at lunch time the following Monday. Bernardino Ulita averred that he was then at home cooking when Margarita Natividad informed him about the killing; that his wife had just delivered and was then in bed at the time; and that in the afternoon of the same day, he went with his brothers Jose, Santos, and Alfredo to Tuguegarao in order to inform Atty. Singson about the incident. Alfredo Ulita stated that he was plowing near his house when his wife, Margarita Natividad, informed him about the incident; and that in the afternoon of the same day, he went with his brothers Jose, Santos, and Bernardino to Tuguegarao to advise Atty. Singson about the killing. Appellants have assigned 11 errors allegedly committed by the trial court, all of which we believe converge on one main issue, namely, whether the evidence adduced by the prosecution warrants the conviction of appellants of the crime charged. It is a question of credibility of the state witnesses. Where the issues is one of the credibility of witnesses, the rule is that appellate courts will not generally disturb the findings of the court a quo considering that it is in better position to decide the question, having seen and heard the witnesses themselves and observed their deportment and manner of testifying during the hearing, unless it is shown that it has overlooked certain facts of substance and value that, if considered, might affect the result of the case. (People vs. Binsol, et al., 100 Phil., 713; 53 Off. Gaz., 3045; People vs. Villaroya, et al., 101 Phil., 1061.) After a careful appraisal of the evidence, we agree with the trial court that the guilt of the appellants has been proved beyond reasonable doubt. We believe that Fabian Ulita pleaded guilty as the sole author of the crime charged, in order to save his close relatives from imprisonment. His story cannot be believed at all. As the trial court observed: Fabian Ulita claims that Guillermo Tagayuna rushed at him when he was harvesting palay and hacked him (Tagayuna) right then and there. But Tagayuna's cadaver was found where there was no palay and his legs were stuck into the deep mud up to the thighs. This fact explodes the theory of self-defense, complete or incomplete . . . .

We believe that the killing of Tagayuna actually took place as narrated by the prosecution witness Macario Constantino who testified in direct, positive straightforward and credible manner. His testimony has corroborated in many respects. Concepcion Ulita testified that on the morning in question, when he was on his way to the rice fields, he saw the 8 accused, armed with boloes, fleeing from the scene of the crime towards their houses, shouting: "We have killed him" (referring Tagayuna). Policeman Isidro Ventura, who drew a sketch of the place where the dead body of Tagayuna was found, saw at least 10 fresh footprints near said body, which was stuck in a muddy spot, with tall grasses (tanglares) all around. The number and location of the wounds (21 in all and in various parts of the victim's body) show convincingly that Tagayuna's assailants were many and that the wounds could not have been inflicted by only one person. The bolo (exh. "I") one of the 3 boloes which were entrusted by Santos Ulita and his brothers (Serapio, Bernardino, and Alfredo) to Meliton Daniel at the latter's house in San Vicente, Gattaran, was found by chief of police Andres Bucaling to have on its blade dried blood stains. It was not Fabian alone but the entire Ulita family that had bad blood with the deceased due to the ownership of certain rice lands. As a matter of fact, the Ulitas had vowed to kill Tagayuna. During the planting season, prior to the incident, they were overhead by Constantino to have told the deceased: "We will bury you in one of the rice paddies" (Itambac da ca ditoy). As to the immediate motive of the killing, it will be noted that on January 23, 1953, or the day before the incident, there arose the question of whether the Ulitas or the Tagayuna group should harvest the palay on the disputed land between Jose Ulita and Tagayuna, and the PC soldiers had ordered the deposit of the harvest with the barrio lieutenant, until the settlement of the dispute. The Ulitas must have deeply resented this, as they had been thereby deprived of the fruits of their labor in planting the palay. They are, therefore, the ones to have reason to likely start hostilities and not the deceased. The fact that the accused fled a few hours after the commission of the offense, clearly indicates their guilty minds. (U. S. vs. Alegado, 25 Phil., 510; U. S. vs. Sarikala, 37 Phil., 486; U. S. vs. Virrey, 37 Phil., 618; People vs. Manalo & Atienza, 46 Phil., 527; People vs. Wilson et al., 52 Phil., 907; People vs. Gucor, 86 Phil., 157; 47 Off. Gaz. 1621.) We quote with approval the trial court's finding on its point, to wit: That the said accused fled a few hours after the commission of the crime, is an eloquent proof of their guilt— especially when six of them went directly to their respective attorneys for advice, and two of them went to the friendly P.C. soldiers for protection. What need was there for four of them to go to Atty. Singson in Tuguegarao to advise him of the killing of Tagayuna by Fabian? What need was there for two of them to go to Atty. Mandac to tell him same thing? To ask both attorneys to defend Fabian only? If they were afraid of retaliation from the followers of Tagayuna, like Alvaro Ulita, they would just have sought the protection of the P.C. soldiers in Pallagao, thus avoiding expense and trouble. Coming to their defense of alibi, it should be noted that the respective residences of the accused where they claim they were at the time of the killing are in the immediate vicinity of the crime. Besides, it has been stated that alibi is at best a week defense and cannot prevail over the testimony of truthful witnesses. The reason is that alibi is easy of fabrication (People vs. Badilla, 48 Phil., 781) especially between parents and children, between relatives, as in the present case, and friends, and even between those not so related (People vs. De Asis, 61 Phil., 384; People vs. Japitana, 77 Phil., 175). Indeed, even in those case where proof of the alibi is well-supported by the testimony of witnesses, the alibi would not be credited when the identity of the accused as the persons who committed the crime is fully established by clear, explicit, and positive testimony, (U.S. vs. Pascua, 1 Phil., 631; U.S. vs. Hudieres, 27 Phil., 45), as in this case. There is no reason to believe that the accused had conspired to kill Tagayuna. The form and manner in which the attack was accomplished (People vs. Tiam, et al., G. R. No. L-36, prom. August 29, 1946) and the gravity and seriousness of the wounds inflicted on the deceased (People vs. Reyes, 47 Phil., 635), showed unity of action and purpose. And it is understandable that a community of interest should exist among the accused, as they were all closely related to each other by blood (People vs. Monadi, et al., supra.) It is not, therefore, difficult to see that they had strong reasons to hate him and adopt measures, even radical, to liquidate him. There can also be no doubt that treachery was present in the commission of the crime, which qualifies the killing of Tagayuna to murder. It was conclusively shown that the latter was suddenly intercepted and assaulted by the accused who were then hiding in the surrounding tall grasses (tanglares), thereby employing means, methods, or forms in the execution of the crime which tended directly and specially to insure its execution without risk to themselves arising from the defense which the offended party might make. (Art. 1416, Revised Penal Code.) When an assault is made with a deadly weapon upon an unarmed and unsuspecting victim who has given no immediate provocation for the attack, and under conditions which make it impossible for him to evade the attack, flee, or make defense, the act is properly qualified as treacherous; and

the homicide resulting therefrom is murder. (People vs. Pengzon, 44 Phil., 224; People vs. Sombilon, 83 Phil., 630; 46 Off. Gaz. [Sup. 11] 83.) It is to be noted that there is here present the circumstance of abuse of superior strength. However, under the circumstances of the case, we deem it absorbed by the element of treachery. The trial court found that the aggravating circumstance of evident premeditation was not attendant in the commission of the crime, for the reason that the incident of January 23, 1953, one day before the killing, was not an act manifestly indicating that the accused clung to their determination to kill the deceased. According to the court, it was a mere altercation regarding which of the parties (the Ulitas and Tagayuna) should get the palay harvested on the land in question. We disagree with the trial court in this regard. According to its own findings, "the way the ambuscade was made, showed a well-predetermined and premeditated plan." Tagayuna was hacked on the arms in order that he could not defend himself. Then they cut his legs so that he could not escape. And when he was already disabled, they surrounded him and hacked him to death. The intention of the accused to eliminate Tagayuna began during the last planting season, before the incident, when the accused told him: "We will bury you in one of the rice paddies." They decided to carry it out on January 23, 1953, when the question arose as to who should get the harvest. The best solution to their problem was to eliminate Tagayuna. They therefore planned to ambush him the following morning, knowing that he would return to the land in question. These circumstances satisfy the requisite of evident premeditation, to wit, "a period sufficient in a judicial sense to afford full opportunity for meditation and reflection and sufficient to allow the conscience of the actor to overcome the resolution of his will if he desires to harken to its warnings." (U.S. vs. Gil, 13 Phil., 530; People vs. Bangug, 52 Phil., 87.) The fitness of the place selected by the accused and the manner in which they inflicted the wounds on the deceased, all are evidences of such premeditation as to satisfy the requirement of the statute that it be evident. (U.S. vs. Ricafor, 1 Phil., 173.) The trial court appreciated the mitigating circumstance of passion and obfuscation in favor of appellants, because it believed that when the harvest of the land which had been cultivated by appellants was ordered deposit with the barrio lieutenant by the PC soldiers, they were deprived of the fruits of their labor and, were therefore, naturally infuriated and obfuscated. But, in order to consider this mitigating circumstance, it is necessary that there be clear proof of the existence of an act both unlawful and sufficient to produce such condition of the minds. (U.S. vs. Pilares, 18 Phil., 87; U.S. vs. Sarikala, 37 Phil., 486; People vs. Alanguilang, 52 Phil., 663.) It will be noted that Jose Ulita, the eldest of the Ulita brothers, has consented to the making of such a deposit on January 23, 1953. We believe that the order for the deposit of the harvest cannot be considered unlawful or sufficient to cause obfuscation on appellants. (See People vs. Noynay, et al., 58 Phil., 393.) In view of the foregoing we find the appellants guilty of the crime of murder aggravated by evident premeditation, without any mitigating circumstance. However, for lack of the required number of votes for the imposition of the supreme penalty of death, the appellants are hereby sentenced to reclusion perpetua, and the indemnify jointly and severally the heirs of the deceased Guillermo Tagayuna in the sum of P6,000.00. Thus modified, the decision appealed from is affirmed, with costs against the appellants. So ordered. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 109617 August 11, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIPE SION @ "JUNIOR," JOHNNY JUGUILON, EDONG SION, FELIX SION @ "ELLET," and FEDERICO DISU @ MIGUEL," accused. FELIPE SION @ "JUNIOR" and FEDERICO DISU @ "MIGUEL," accused-appellants. DAVIDE, JR., J.: In its decision 1 in Criminal Case No. D-10796 dated 20 January 1993, but promulgated on 8 February 1993, Branch 44 (Dagupan City) of the Regional Trial Court of the First Judicial Region decreed as follows: WHEREFORE, the Court finds accused Felipe Sion alias "Junior" and Federico Disu alias Miguel Disu guilty beyond reasonable doubt as principals of the crime of Murder pursuant to Article 248 of the Revised Penal Code, and in view of the attendance of the aggravating circumstance of cruelty which is not offset by any

mitigating circumstance, the two accused are hereby sentenced to suffer the penalty of Reclusion Perpetua, and to indemnify jointly the heirs of the victim the sum of P50,000.00 and to pay the costs of the proceedings. Accused Felipe Sion alias "Junior" and Federico Disu alias Miguel Disu are ordered to pay jointly the heirs of the victim the sum of P11,910.00 as actual damages. SO ORDERED. Felipe Sion alias "Junior," whose full name is Felipe Rodriguez Sion, Jr. 2 (hereafter appellant Sion), and Federico Disu alias "Miguel" (hereafter appellant Disu), seasonably appealed therefrom to this Court 3 in view of the penalty imposed.4 The case against appellants commenced with the filing of a criminal complaint for Murder 5 on 19 November 1991 in Criminal Case No. 2141 (SP-91) before the Fourth Municipal Circuit Trial Court of San Fabian-San Jacinto in the Province of Pangasinan. Charged with appellants therein were Johnny Juguilon, Edong Sion, Felix Sion alias "Ellet," and "four (4) other John Does." After appropriate preliminary examination, Judge Sergio Garcia of said court issued a warrant for the arrest of the accused with no bail fixed for their temporary liberty. 6 However, the warrant was served only on appellant Disu, while the rest then remained at large. Upon appellant Disu's motion for bail, to which Asst. Provincial Prosecutor Restituto Dumlao, Jr., recommended that bail be fixed at P40,000.00 for said accused only, the court fixed said accused's bail at such amount; and upon filing and approval of the bail bond, appellant Disu was ordered released. 7 Subsequently, one Atty. Fernando Cabrera filed, for the rest of the accused, a motion to reduce the bail from P40,000.00 to P20,000.00. 8 As Provincial Prosecutor Dumlao agreed to a reduction of P10,000.00, the court granted the motion and fixed bail at P30,000.00. None of them, however, filed a bail bond. For failure of the accused to submit the required counter-affidavits, the Municipal Circuit Trial Court, finding probable cause against all the accused for the crime of murder on the basis of the evidence for the prosecution, ordered the transmittal of the record of the case, including the bail bond of accused Federico Disu, to the Office of the Provincial Prosecutor of Pangasinan for appropriate action. 9 On 21 January 1992, an Information 10 was filed with the Regional Trial Court (RTC), First Judicial Region, in Dagupan City, Pangasinan, against appellants Sion and Disu and Johnny Juguilon, Edong Sion, Felix Sion alias "Ellet," and four (4) unidentified persons (designated as John, Peter, Richard and Paul Doe), accusing them of the crime of murder committed as follows: That on or about October 16, 1991 in the evening at Brgy. Binday, municipality of San Fabian, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with stones and a bladed weapon conspiring, confederating and mutually helping one another with intent to kill with treachery and evident premeditation did, then and there wilfully, unlawfully and feloniously hurl with stones, attack and stab Fernando Abaoag inflicting upon him the following injuries: — stab wound 1 1/2 inches in width, 9 inches in depth between 10-11 ICS, mid axillary area slanting upwards hitting the left lobe of the lung — stab wound right lateral side of the neck 1 1/2, inch in depth — stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular area, left — contusion superimposed abrasion left eyebrow which caused his instant death, to the damage and prejudice of his heirs. CONTRARY to Art. 248, Revised Penal Code. The information was docketed as Criminal Case No. D-10796 and assigned to Branch 44 thereof. On 2 June 1992, accused Sion was arrested. 11 Then on 10 June 1992, the RTC annulled and voided the bail earlier granted to appellant Disu by the MCTC Judge Sergio Garcia for luck of proper hearing, denied the motion for bail filed by appellant Sion, and ordered their detention in jail. 12 Since only appellants Sion and Disu were arrested, the case proceeded against them only. Upon arraignment, both pleaded not guilty to the charge and waived pre-trial. 13 The prosecution's witnesses were Cesar and Felicitas Abaoag, the brother and the wife of the victim, respectively; Dr. Leopoldo Manalo, San Fabian Municipal Health Officer; Rosendo Imuslan, barangay captain of Barangay Binday; and SPO1 Ricardo Abrio. On the other hand, the defense presented as its witness appellant Disu; appellant Sion; Corazon Sion, wife of appellant Sion; and Dr. Leopoldo Manalo. The evidence for the prosecution as established by the testimonies of its witnesses is partly summarized by the Office of the Solicitor General in the Brief for the Appellee, as follows: On or about 7:00 o'clock in the evening of October 16, 1991, Cesar Abaoag was at the barangay road in front of his house situated in Binday, San Fabian, Pangasinan. He was with his elder brother Carlos Abaoag and Ricardo Manuel (p. 6, TSN, August 20, 1992) when all of a sudden, Ronnie Manuel arrived coming from the

west complaining that he was being chased by Felipe Sion and Johnny Juguilon (p. 7, TSN, id.). On that same occasion, Fernando Abaoag also arrived at the scene. He said to Ronnie, "why Ronnie, you are making trouble again." The latter answered, "I am not making trouble uncle because while I was inside the house of Eling Alcantara, Felipe Sion and Johnny Juguilon were trying to stab me. (p. 8, TSN, id.). Seconds later, Felipe Sion and Johnny Juguilon appeared and started throwing stones. Fernando Abaoag told them to stop throwing stones but before they desisted and left, one of them uttered "even you Andong, you are interfering, you will also have your day, vulva of your mother, you Abaoag[s]" (pp. 9-10, id.) Apparently, the utterance was directed against Fernando Abaoag whose nickname is Andong. Subsequently thereafter, at about 9:00 o'clock on that same evening, Cesar Abaoag while inside his house lying down on his bed heard the sound of stone throwing at the nearby house of his brother Fernando. He went out to see who were throwing stones (14, TSN, id.). When already near the house of Lolly Galdones, Cesar Abaoag saw his brother Fernando already outside his house. He also saw Johnny Juguilon, one of the members of the group of stone throwers, hurl a big stone against Fernando. Upon being hit on the left eyebrow, Fernando turned his back towards Felix Sion, Edong Sion and Miguel Disu who were also throwing stones towards his direction. On the other hand, appellant Felipe Sion, who was near the victim, with a very sharp double bladed dagger, stabbed Fernando, first on the left side just below the armpit, then on the left waistline and finally on the right side of the neck below the jaw (pp. 18-19, TSN, id.). Cesar tried to extend help to his brother but Miguel Disu hurled a stone on him which landed on his right side below the armpit. When he heard Felipe Sion shouting to his companions saying, "we will also kill Cesar," Cesar desisted in helping brother (pp. 22-23, TSN, id.). Instead, he ran to his brother's house and informed Felicitas, the wife, about the helpless condition of Fernando (pp. 22-23, TSN, id.). Upon being informed, Felicitas accompanied by Carlos Abaoag, went to the place of the incident. The assailants were no longer there. She only saw her husband lying prostate on the ground very weak in the state of dying. When she inquired what happened, Fernando answered "naalaak" which in English means "I was hit" (pp. 4-5, TSN, July 27, 1992). Fernando told his wife that his assailants were Felipe Sion, Miguel Disu, Edong Sion, Johnny Juguilon and Felix Sion (p. 6, TSN, id.) The victim was rushed to St. Blaise Hospital in San Fabian but he was pronounced dead on arrival (pp. 24-25, TSN, August 20, 1992). Dr. Leopoldo Manalo, a Municipal Health Officer of San Fabian, Pangasinan conducted post mortemexamination (Exh. A) on the body of the victim. The result of his findings showed that Fernando Abaoag sustained the following injuries, to wit: 1) stab wound 1 1/2 inches in width, 9 inches in depth between 10-11, ICS, mid axillary area slanting upwards hitting the left lobe of the lung 2) stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2 inch in depth 3) stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular area, left 4) contusion superimposed abrasion left eyebrow. 14 Dr. Manalo further testified that the stab wounds were caused by a sharp-pointed instrument, possibly a dagger, with the first wound hitting the lower lobe of the left lung causing severe bleeding and its eventual collapse. He determined the cause of death to be hemorrhagic shock secondary to multiple stab wounds. 15 Barangay Captain Imuslan testified that he and Kagawad Fernando Gatchalian, on the night of the incident, found a small bolo and a bloodied double-bladed weapon (dagger) near the scene of the crime. 16 Cesar Abaoag recognized this weapon as the one used by appellant Sion in stabbing the victim. 17 On her part, Felicitas Abaoag declared that she spent more than P11,000.00 for the wake and burial of her husband whose death saddened her, she being left alone to take care of their children. 18 In his defense, appellant Sion, brother and cousin of accused Edong 19 Sion and Felix Sion alias "Ellet," respectively, admitted that on the night in question, he participated in a stone-throwing incident and "freefor-all rumble" between his group (the Sions and Johnny Juguilon) on one hand, and the Abaoags and Manuels, on the other. However, he professed his innocence, claiming that it was his brother Edong Sion and Johnny Juguilon who stabbed the victim. 20 His version of the incident was summarized by the trial court, thus: On October 16, 1991 at about 7:00 p.m., he, together with Johnny Juguilon went to the house of Eling Alcantara as he wanted to talk with his son, his friend. Ronnie Manuel was already there when they arrived. While at the place, Johnny Juguilon and Ronnie Manuel came out and started fighting with each other. Ronnie and Manuel ran and proceeded to the place of his cousin. He was pacifying Johnny Juguilon and Ronnie Manuel but Johnny Juguilon threw stones at Ronnie Manuel. At this point, Fernando Abaoag intervened in the

quarrel saying, "vulva of your mother Johnny, you are too much, you will also have your day." Johnny Juguilon answered "vulva of your mother Andoy, do not interfere because you are not our enemy." After the verbal exchange, he took Johnny Juguilon to their (Sion's) house . . . . At about 9:00 p.m., that same evening, they stoned their house, its sides and the stairs. He and Idong and Johnny Juguilon looked for Cesar Abaoag, Ronnie Manuel, Ricky Manuel, Andong Abaoag and two (2) other companions. They were at the place of Marta Soriano. After that, they still threw stones towards them. There was a free for all rumble between Ronnie Manuel, Ricky Manuel, the Abaoags and Idong Sion, and Johnny Juguilon, Ellet Sion and himself, in front of the house of Loly Galdones. He denied the testimony of Cesar Abaoag that he stabbed Fernando Abaoag three times and before he was stabbed Johnny Juguilon stoned him (Fernando Abaoag). It was Idong Sion and Johnny Juguilon who stabbed Fernando Abaoag. After Fernando Abaoag was stabbed, they ran away. His group also ran away. He went home and rushed towards Johnny Juguilon because he was stabbed. He brought Juguilon to the St. Blaise Clinic and Hospital. He did not report the incident to Barangay Captain Rosendo Imuslan. On October 17, 1:00 p.m., he presented himself to Kagawad Lagman who brought him to the Police Station . . . . 21 In his defense, appellant Disu offered denial and alibi. He declared that he had no participation in the killing of Fernando Abaoag, and during the whole night of 16 October 1991, while the quarrel, stoning and stabbing incidents in question were taking place, he was resting and sleeping in the house of his employer, Felicidad Gatchalian, after driving the latter's jeepney the entire day. However, before proceeding home from work that afternoon, he went to the store of Oping Juguilon to buy cigarettes and dropped by the house of appellant Sion where he stayed for about five minutes. He only learned about the killing the following morning when he was told that he was one of the suspects. He was arrested about a month after the incident. 22 On rebuttal, Cesar Abaoag refuted the testimony of appellant Sion. Cesar asserted that neither his brothers, the Manuels nor himself threw stones at Sion's house; there was no free-for-all fight between the Sions and the Abaoags; Johnny Juguilon and Edong Sion merely threw stones at, but did not stab, Fernando Abaoag; and it was only appellant Sion who stabbed Fernando Abaoag. 23 After the conclusion of trial, the court granted appellants' motion to file a memorandum within fifteen days. Despite the extension given, appellants' counsel did not file the memorandum. Thus, in its order of 11 December 1992, the trial court declared the case submitted for decision. 24 On 8 February 1993, the trial court promulgated its decision, 25 the dispositive portion quoted in the introductory paragraph of this ponencia. As to the culpability of appellants Sion and Disu, the trial court found: The defense of accused Federico Disu alias Miguel Disu and Felipe Rodriguez Sion, Jr. deserve scant consideration. Cesar Abaoag narrated in detail how his brother Fernando Abaoag was stoned by accused Johnny Juguilon, Federico Disu and Felix Sion and how accused Felipe Sion stabbed Fernando Abaoag three times. Cesar Abaoag saw Johnny Juguilon throw stone hitting the left eyebrow of Fernando Abaoag, and when his brother (Fernando Abaoag) turned left, accused Federico Disu alias Miguel Disu, Idong Sion and Felix Sion simultaneously threw stones toward him (Fernando Abaoag). Then, at a distance of two (2) meters, Cesar Abaoag saw accused Felipe Sion stab Fernando Abaoag three times, hitting the left side below the armpit, then on the left waistline and the right side of the neck below the jaw of the deceased with the use of a sharp double bladed dagger. Cesar Abaoag could not be mistaken in the identification because he was two meters away when he saw the accused Felipe Sion stab his brother, and, moreover, there was a light illuminating the place of the incident coming from the houses of Marta Soriano and Loly Caldones. Cesar Abaoag identified the dagger (Exhibit D). The narrations of Cesar Abaoag are bolstered by the testimony of Dr. Leopoldo Manalo, the doctor who conducted the postmortem examination on the cadaver of Fernando Abaoag. Dr. Manalo stated that "stab wound 1 1/2 inches in width, 9 inches in depth between 10-11 ICS, mid-axillary area slanting upwards hitting the left lobe of the lung" is located below the left armpit. The second stab wound, "stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2 in depth," is located at the right side of the nec[k] at the back. The doctor stated that the wounds were caused possibly by a dagger. Finally, it is well to quote the statement uttered by Fernando Abaoag in the presence of Felicitas Abaoag, to wit: "naalaak, which means, I was hit, take note of this because I cannot survive these injuries of mine". Fernando Abaoag told Felicitas Abaoag, Felipe Sion, Miguel Disu, Idong Sion, Johnny Juguilon and Felix Sion stabbed him. (2-12 tsn July 27, 1992). This is a dying declaration because it was made under a consciousness of impending death (Section 37, Rule 130, Rules of Court). 26 The trial court likewise found that conspiracy was duly established by the prosecution, thus:

As stated in the decision, accused Johnny Juguilon threw stone, hitting the left eyebrow of Fernando Abaoag, and Edong Sion, Felix Sion and Federico (Miguel) Disu simultaneously threw stones upon the deceased, while accused Felipe Sion alias "Junior" stabbed him (victim) three times, resulting in the latter's death. 27 It then appreciated against appellants (a) the qualifying circumstance of treachery because the "attack was so sudden that the victim had no time to defend himself" and (b) the generic aggravating circumstance of cruelty because "there were three stab wounds" and the first wound — which "caused severe bleeding and collapse of the lung" and the death of Fernando Abaoag — "was deliberately augmented by inflicting the other wounds which are unnecessary for its commission." 28 It did not, however, appreciate evident premeditation for lack of "substantial" evidence; 29 nor give the benefit of voluntary surrender in favor of appellant Sion since his surrender was merely "forced by circumstances," as he "presented himself to Kagawad Lagman because he was suspected as one of the persons who stabbed the victim." 30 Appellants, through counsel, seasonably filed their Notice of Appeal. 31 In their eight-page Appellant's Brief, filed by counsel de oficio Atty. Iris L. Bonifacio, 32 appellants plead for their acquittal, contending that the trial court erred: (1) in convicting them of murder; (2) in taking into account the aggravating circumstance of cruelty; (3) in ruling that conspiracy was established; (4) in not appreciating the presence of voluntary surrender; and (5) in disregarding the defense of appellant Sion that it was Edong Sion and Johnny Juguilon who were responsible for the death of Fernando Abaoag. In support of their first assigned error, appellants attack the identification made of them by prosecution witnesses. They claim that if witness Cesar Abaoag actually saw appellant Sion stab the victim, then Cesar should have immediately informed Felicitas Abaoag, the victim's wife, of this fact. Cesar's failure was then unusual and unnatural. Then, too, Felicitas Abaoag's testimony on her husband's alleged dying declaration was "not specific" as far as the assailant's identities were concerned because the victim merely said "naalaak" ("I was hit"), without identifying appellant Sion as the one who stabbed him; and, her claim that her husband identified all the five (5) accused as the ones who "stabbed" him was "an impossibility." Moreover, the prosecution witnesses were limited to relatives of the victims; "other vital witnesses" — such as Marta Soriano, Loly Galdones, or Eling Alcantara — should have been presented to corroborate the "biased" testimonies of Cesar and Felicitas Abaoag. Appellants further contend that: (1) there was no treachery since the stabbing of the victim was not "sudden"; (2) cruelty was not proven because "there is no clear testimony" that the first stab wound was fatal and the second and third wounds were "unnecessary"; (3) conspiracy cannot be deduced from the mere fact that all the accused threw stones at the victim before the stabbing; (4) appellant Sion voluntarily surrendered even before the police started investigating the case when he was not yet a suspect; and (5) appellant Sion could not have testified that it was Edong Sion and Johnny Juguilon who stabbed the victim if such were not true, considering that the former is his brother and the latter his barriomate; and (6) appellant Sion bore no grudge against the victim and did not escape. On the other hand, the Office of the Solicitor General, in its Brief for the Appellee, supports the trial court's findings and conclusions, except as to the appreciation of cruelty, which it concedes to be erroneous. Our careful review of the record of the evidence adduced by the parties convinces us that prosecution witness Cesar Abaoag positively identified appellants as being present during the incident in question and saw appellant Sion stab the victim thrice. As correctly found by the trial court: Cesar Abaoag could not be mistaken in the identification because he was two meters away when he saw the accused Felipe Sion stab his brother, and, moreover, there was a light illuminating the place of the incident coming from the houses of Marta Soriano and Loly Caldones. Cesar Abaoag identified the dagger (Exhibit D). Cesar Abaoag also saw the rest of the accused, including appellant Disu, throwing stones at the victim. He was definite, however, that it was only accused Johnny Juguilon who was able to hit the victim at the left eyebrow. The three stab wounds inflicted by appellant Sion and the injury at the left eyebrow caused by the stone thrown by Juguilon jibed with the post mortem findings of Dr. Manalo as he described the injury on the left eyebrow as "contusion superimposed abrasion left eyebrow." 33 If Cesar had any ulterior motive to testify against appellant Disu, he could have declared that it was Disu, and not Juguilon, who hit the victim with a stone. Cesar then honestly narrated what he observed. That Cesar did not at once inform Felicitas Abaoag that it was appellant Sion who stabbed her husband, was not proof, as appellants suggest, that Cesar was absent from the crime when it was committed. Cesar's presence was admitted by appellant Sion himself on direct examination, thus: Q Did you see Cesar Abaoag on that occasion anywhere near Fernando Abaoag when you said he was stabbed by Johnny Juguilon and Idong Sion?

A Yes, sir. 34 Furthermore, Cesar satisfactorily explained his failure to forthwith inform Felicitas of this fact. At that time, Cesar himself was running away from the accused who had hit him with a stone. His pressing concern then was to get someone to help his wounded brother; besides, he was scared of accused Felix Sion, uncle of appellant Sion, who was a "notorious" character in their neighborhood. 35 It is settled that delay in divulging the name of the perpetrator of a crime, if sufficiently explained, does not impair the credibility of the witness nor destroy its probative value.36 In any event, in his sworn statement 37 which was submitted on 22 October 1991 before Judge Sergio Garcia, he narrated what he had witnessed and mentioned appellants Sion and Disu as among the perpetrators of the crime. The identifications of appellants and their co-accused were further bolstered by the declaration made by the victim to his wife, Felicitas Abaoag. The trial court correctly characterized this as a "dying declaration," 38 having been made under the consciousness of impending death. The victim was already weak his wife saw him and he knew that he would not survive the injuries he sustained; he even died a few minutes later while on the way to the hospital. 39 When Felicitas saw her husband, he told her what had happened to him, who caused his injuries and that he did not expect to live, thus: Q What happened next after that when you met your husband? A Immediately asked him what happened to him. Q And what was the answer of Fernando Abaoag? A He said, "naalaak," which means, I was hit. COURT: Q Did you ask him why he said "naalaak"? A He said he was stabbed and he was injured. Q What do you mean by word "naalaak"? A I was hit. COURT: Proceed. PROSECUTOR DUMLAO: Q Do you know the reason why he was hit? A What I understand is that in the course of his pacifying the trouble between his nephew and the rest, he was stabbed, sir. Q Aside from the statement of your husband Fernando Abaoag that he was hit, what else did he say, if you know? A He said, take note of this because I know I cannot survive with these injuries of mine. COURT: Q What else did he tell you aside from that? A He said, remember that in case I cannot survive with the injuries that I sustained, the men who stabbed me are Felipe Sion, Miguel Disu, Idong Sion, Johnny Juguilon and Felix Sion, sir.40 (emphasis supplied) We find these statements given by the victim to his wife to have met the requisites of a dying declaration under Section 37 of Rule 130 of the Rules of Court, viz: (a) death is imminent and the declarant was conscious of that fact; (b) the preliminary facts which bring the declaration within its scope must be made to appear; (c) the declaration relates to the facts or circumstances pertaining to the fatal injury or death; and (d) the declarant would have been competent to testify had he survived. 41 Dying declarations are admissible in evidence as an exception to the hearsay rule because of necessity and trustworthiness. Necessity, because the declarant's death renders impossible his taking the witness stand, and it often happens that there is no other equally satisfactory proof of the crime; andtrustworthiness, for it is "made in extremity, when the party is at the point of death and every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth.42 We find no ulterior motive on the part of Felicitas to fabricate the declarations of her husband. We likewise find to be without basis appellants' claim that all the prosecution witnesses were biased due to their relation to the victim's family. Plainly, witnesses Imuslan (the barangay captain) and Dr. Manalo were not related to the victim, while the relationship of witnesses Cesar Abaoag and Felicitas Abaoag to the victim, as brother and wife, respectively, neither disqualified them as witnesses nor rendered their testimony unworthy of belief. It is not to be lightly supposed that relatives of the deceased would callously violate their conscience to avenge the death of a dear one by blaming it on persons whom they believe to be innocent thereof. 43 A witness' relationship to a victim, far from rendering his testimony biased, would even render the

same more credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other than the real culprit. 44 Neither was the failure of the prosecution to present other witnesses, such as those mentioned by the appellants, fatal to the cause of the People. It is well-settled that the decision as whom to present as witnesses for the prosecution is addressed to the sound discretion of the prosecutor handling the case and the nonpresentation of certain witnesses by the prosecution is not a plausible defense. 45 The prosecution is not obliged to present all possible witnesses, especially if their testimony will only serve to corroborate that of another eyewitness' testimony, in which case the former may every well be dispensed with considering that the testimony of a single witness, if credible and positive to prove the guilt of the accused beyond reasonable doubt, would suffice. 46 The trial court correctly rejected appellant Sion's defense that it was not he who stabbed the victim, but his brother Edong Sion and Johnny Juguilon, both of whom fled after the incident. Constituting a mere denial of Cesar Abaoag's positive testimony that it was appellant Sion who stabbed the victim, such must fail in light of the settled rule of evidence that positive testimony is stronger that negative testimony. 47 Moreover, the claim was made rather late in the day, casting serious doubt as to its veracity. From the time that appellant Sion presented himself to Kagawad Lagman and the police authorities on 17 October 1991, and during his subsequent incarceration, he never told anyone nor made any statement that he was not one who stabbed the victim; he did not even so inform his close relatives, not even his wife who visited him in jail. 48 Also, during the preliminary investigation, when he had the opportunity to submit counter-affidavits and other evidence to refute the charges, he did not care to dispute the statements of Felicitas and Cesar Abaoag identifying him and detailing his participation in the crime. 49 He raised this claim for the first time only during his testimony in court almost one (1) year after the stabbing incident and his initial surrender, and notably, only after the hope of apprehending Idong Sion and Johnny Juguilon, together with the other accused, already seemed remote. Such failure to immediately disclose the information as soon as he was implicated in the crime and his prolonged silence on a vital matter hardly inspire belief, being unnatural and inconsistent with ordinary habits of men and common experience. That appellant Sion did not flee, unlike his brother Edong and Johnny Juguilon, neither proved his innocence. Non-flight — unlike flight of an accused which validly serves as a badge of guilt — is simply inaction which may be due to several factors; hence, it should not be construed as an indication of innocence. 50 Appellant Sion's claim of lack of ill-feeling or grudge against Fernando Abaoag was belied and contradicted by his admission in court that just before the stabbing of the victim, he and his co-accused hurled stones at and fought with the Abaoags, including Fernando, whom he blamed for allegedly stoning his house. 51 It is also belied by his actuation and utterance made earlier in the evening of 16 October 1991 when Fernando Abaoag interfered in the quarrel between appellant Sion and Fernando's nephew, Ronnie Manuel, which prompted appellant Sion and Johnny Juguilon to curse and warn Fernando, thus: "even you Andong [Fernando Abaoag] you are interfering, you are siding with your nephew Ronnie Manuel, you have also your day . . . . you Abaoags." 52 Appellant Sion also admitted that he "had an ill-feeling towards" Ronnie Manuel, the victim's nephew, because "he was making trouble" inside his jeepney "5 days before the incident." 53 In light of the positive identification of appellants, appellant Disu's alibi must fail. It is settled that alibi is a weak defense for it is easy to concoct and fabricate; it cannot prevail over and is worthless in the face of the positive identification by credible witnesses that an accused perpetrated the crime. 54We are unable to discern any plausible reason, and appellant Disu does not offer any, why he should be falsely implicated by Cesar Abaoag and mentioned in the victim's dying declaration as one of the victim' assailants, if appellant Disu was not actually present during the incident and had no participation in the commission of the crime. As to his motive or lack thereof, appellant Disu claims that he had no misunderstanding with Fernando Abaoag or his family. 55 However, Felipe Sion, Jr., disclosed that appellant Disu was close to the Sion clan, which explains why appellant Disu sympathized with and joined the Sions and Juguilon in assaulting the victim: Federico Disu was Sion Jr.'s jeepney conductor for five (5) months, the latter teaching the former how to drive for three (3) months; and when Disu became a driver himself, they had the same route and saw each other every day at the poblacion. 56 Disu even admitted that on 16 October 1991, after 5:00 p.m., he "dropped by" the house of Felipe Sion, which he often did before. 57 We now rule on the presence or absence of conspiracy. There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 58 Direct proof of a previous agreement to commit a crime is not necessary; it may be deduced from the mode and manner in which the offense was perpetrated, or inferred from acts of the accused themselves when such point to a joint purpose

design, concerted action and community of interest. 59 Once conspiracy is established, the act of one is the act of all. 60 In this case, appellants and the other accused were already at the barangay road of Binday, near the houses of Lolly Galdones and Marta Soriano, when Fernando Abaoag, who was looking for the persons who just stoned his house several times, and Cesar Abaoag, arrived. Immediately, Johnny Juguilon threw a stone at Fernando hitting him on the left eyebrow; then, Edong, and Felix Sion and appellant Disu, "simultaneously" threw stones, also at Fernando. As Fernando turned away from his assailants, appellant Sion "rushed" and stabbed the victim three (3) times, even as the latter raised his arms saying, "I will not fight back." When Cesar Abaoag tried to help his brother Fernando, appellant Disu threw and hit Cesar with a stone. Appellant Sion then commanded his companions to also kill Cesar, prompting the latter to run away. Then the assailants fled, leaving behind a small bolo and a dagger. The confluence of their acts indubitably manifested a community of interest and unity of purpose and design to take Fernando Abaoag's life. We also find to be unsupported by evidence appellant's claim, through the testimony of appellant Sion, that the fatal stabbing of Fernando Abaoag was a result of a "free-for-all rumble," thereby possibly tempering their liability to that of causing death in a tumultuous affray under Article 251 of the Revised Penal Code, which carries a penalty lower than that for homicide. 61 In this case, it was ascertained beyond doubt that appellant Sion inflicted the fatal stab wounds; hence, this claim must be rejected. Having resolved appellants' liability for Fernando Abaoag's death, we now rule on the circumstances attendant to the commission of the crime. In convicting appellants of murder, the trial court considered the qualifying circumstance of treachery, and disregarded the qualifying circumstance of evident premeditation, which was likewise alleged in the information. We agree as to the latter as the prosecution failed to prove the essential elements of evident premeditation, viz: (a) the time when appellants determined to commit the crime; (b) an act manifestly indicating that they clung to their determination; and (c) a sufficient lapse of time between such determination and execution to allow them to reflect upon the consequences of their act. 62 We disagree, however, with the trial court's finding as regards the qualifying circumstance of treachery. Under the law, there is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly or specifically to ensure its execution, without risk to himself arising from the defense which the offended party might make. 63 We find no clear and convincing evidence of treachery. Cesar Abaoag's testimony as to how his brother was attacked lacks sufficient detail showing conclusively that the mode and manner of the assault rendered the victim entirely defenseless. He merely testified that when he and his brother proceeded west of the barangay road of Binday, he saw Johnny Juguilon stone his brother and hit him on the left eyebrow. Fernando Abaoag then turned to the left with his back towards Felix Sion, Edong Sion, Miguel Disu and the four (4) other unidentified companions, who then "simultaneously" threw stones at Fernando. "Seconds later," Cesar saw appellant Sion holding a very sharp double bladed dagger and stab his brother three (3) times; Fernando Abaoag, when stabbed, "was just standing and said 'I will not fight.'" 64 They were six (6) meters away from Johnny Juguilon when the latter first hurled a stone at Fernando which signaled the other accused to the same. 65 Considering therefore the distance between the assailants and the victim when the attack commenced, and the fact the three were two (2) waves of stoning which preceded the stabbing of the victim, these should have sufficiently forewarned him of the greater danger which loomed and prompted him to escape. Moreover, in light of the absence of clear details showing conclusively that the stabbing was inflicted from behind or the victim was entirely helpless when stabbed, we are not prepared to conclude that the attack was "so sudden and unexpected" as to render the victim entirely defenseless. Treachery cannot qualify the killing to murder when the victim was forewarned of the attack by the assailant, or when the attack was frontal, or the attack was not so sudden as to have caught the deceased completely unaware. 66 Furthermore, the evidence does not disclose that the means of execution were deliberately or consciously adopted by appellants. Absent then of any qualifying circumstance, the crime committed was homicide as defined and penalized under Article 249 of the Revised Penal Code. The trial court likewise erred in appreciating against appellants the generic aggravating circumstance of cruelty, 67based solely on the fact that the victim was stabbed thrice, with the first stab wound hitting the lower left lung causing severe bleeding and its collapse. In fact, appellee concedes this error of the trial court. Cruelty cannot be appreciated in absence of any showing that appellants, for their pleasure and satisfaction, caused the victim to suffer slowly and painfully and inflicted on him unnecessary physical and moral pain; and, the mere fact that wounds in excess of what was indispensably necessary to cause death were found on

the body of the victim does not necessarily imply that such wounds were inflicted with cruelty and with the intention of deliberately intensifying the victim's suffering. 68 In the instant case, the evidence only shows that the three (3) stab wounds were delivered in succession, nothing more. We agree with appellants that appellant Sion is entitled to the benefit of the mitigating circumstance of voluntary surrender, which requires that "the offender voluntarily surrendered himself to a person in authority." 69 Its requisites are: (a) the offender had not been actually arrested; (b) the offender surrendered himself to a person in authority or to the latter's agent; and (c) the surrender was voluntary. 70 For a surrender to be voluntary, it must be spontaneous and show the intent of the accused to submit himself unconditionally to the authorities, either: (1) because he acknowledges his guilt; or (2) because he wishes to save them the trouble and expense incidental to his search and capture. 71 As shown by the records, in the afternoon of 17 October 1991, appellant Sion "presented" himself to Kagawad Modesto Lagman who, in turn, "escorted and surrendered" him to the police in the poblacion. 72 His admission that he surrendered because he was already suspected as one of the perpetrators of the crime does not make his surrender "forced by circumstances" as ruled by the trial court. His arrest at that time was neither imminent nor inevitable. At the time of his surrender, no warrant of arrest against him had yet been issued, the same having been issued only on 19 November 1991. 73 In fact, he was released from custody after a few days, and was ordered committed to jail only sometime in June 1992, after his motion for bail was denied by the trial court on 10 June 1992 and was thus taken into custody. 74 This subsequent fact should not diminish nor erase the favorable effect of Felipe Sion Jr.'s voluntary surrender on 17 October 1991. As has been held, whatever the accused's reason for surrendering — either the fear of reprisal from victim's relatives or, in this case, his knowledge that he was already a suspect — "does not gainsay the spontaneity of the surrender, nor alter the fact that by giving himself up, he saved the State the time and trouble of searching for him until arrested." 75 We disagree with Appellee's submission that there was no voluntary surrender because appellant Sion surrender to a mere barangay "Kagawad" or Sangguniang Barangay member, and not to the police authorities, implying that the former is not a person in authority. 76 This ignores Section 388 of the Local Government Code of 1991 which expressly provides, in part, that "[f]or purposes of the Revised Penal Code, the punong barangay, sangguniang barangay members, and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions . . . ." 77 This law expands the definition of a person in authority under the Revised Penal Code, wherein among the barangay officials, only the barangay captain or chairman, now called Punong Barangay, is expressly considered a person in authority, as provided in Article 152 thereof. Thus, in addition to the Punong Barangay, the members of the Sangguniang Barangay, or Kagawads, and members of the Lupong Tagapayapa are now considered not merely as agents of, but as persons, in authority. 78 WHEREFORE, the challenged decision of Branch 44 (Dagupan City) of the Regional Trial Court of the First Judicial Region in Criminal Case No. D-10796 is MODIFIED. As modified, appellants FELIFE SION, alias"JUNIOR" or FELIFE RODRIGUEZ, JR., and FEDERICO DISU, alias "MIGUEL," are hereby declared GUILTY beyond reasonable doubt, as principals, of the crime of HOMICIDE as defined and penalized in Article 249 of the Revised Penal Code, with the former entitled to the mitigating circumstance of voluntary surrender, and applying the Indeterminate Sentence Law, they are sentenced, respectively, to suffer an indeterminate penalty ranging from eight (8) years of prison mayor minimum, as minimum, to fourteen (14) years and eight (8) months ofreclusion temporal as maximum, and an indeterminate penalty ranging from ten (10) years and one (1) day ofprision mayor maximum, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal minimum as maximum, with all the accessory penalties therefor, and subject to the provision of Article 29 of the Revised Penal Code. Except as so modified, the rest of the challenged judgment stands. Costs against accused-appellants. SO ORDERED. EN BANC [G.R. No. 152289. January 14, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. MARLON JUAN Y LESTE, appellant. DECISION CORONA, J.:

Before us for automatic review is the decision[1] of the Regional Trial Court of Aparri, Cagayan, Branch 8, Second Judicial Region, finding the appellant, Marlon Juan, guilty beyond reasonable doubt of the crime of parricide and sentencing him to suffer the supreme penalty of death. The information dated July 24, 2001 charged appellant with the crime of parricide as follows: That on or about April 23, 2001, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife and a [sic] “asador,” with intent to kill, did then and there willfully, unlawfully and feloniously assault, attack and stab one Yolanda Juan y Leste, his legitimate mother, inflicting upon her multiple stab wounds which caused her death. CONTRARY TO LAW.[2] Upon arraignment on September 17, 2001, appellant, duly assisted by counsel de oficio, pleaded guilty to the crime charged.[3] During the pre-trial conference on October 11, 2001, appellant admitted the following facts presented by the prosecution: 1. identity of the accused – that whenever the name Marlon Juan was mentioned, it referred to the accused; 2. identity of the victim – Yolanda Juan; 3. that accused Marlon Juan was the son of the victim and that the victim was the legitimate mother of the accused; 4. that the accused killed the victim on April 23, 2001 inside the victim’s house at Barangay Punta, Aparri, Cagayan with the use of a pointed iron bar; and 5. that the victim died of multiple stab wounds as shown by the medical certificate and the post mortem report issued and signed by Dr. Robert Ogalino.[4] Thereafter, trial on the merits ensued. On January 9, 2002, the trial court promulgated its decision, the dispositive portion of which read: WHEREFORE, the Court finds accused Marlon Juan y Leste “GUILTY” beyond reasonable doubt of the crime of “Parricide” for killing his mother and is hereby sentence [sic] to suffer the supreme penalty of “DEATH.” SO ORDERED.[5] The facts follow. On April 23, 2001, around 10:00 p.m., Yolanda Juan opened the door of their house to let her son, herein appellant Marlon Juan, in. Deogracias Juan (Yolanda’s husband and appellant’s father) who was resting inside their bedroom could hear his wife and son’s voice. Appellant who was high on drugs demanded delicious food for dinner. Moments after, Deogracias heard the throwing and breaking of plates. Then he heard Marvin (appellant’s brother) yelling “Ni Nanang natayen” (“Mother is dead already”). Deogracias immediately proceeded to the porch where Marvin’s voice came from and saw appellant in the act of stabbing Marvin. Deogracias grabbed the asador (pointed iron bar) from the appellant and they wrestled for its possession. Eventually, Deogracias got control of the asador. Appellant then drew a knife from his waist and tried to stab Deogracias but the latter was able to wrest the knife away from the appellant. Appellant ran away. When Deogracias finally turned his attention to his wife, only then did he realize that indeed she was already dead. Yolanda was lying face down on the floor, no longer breathing. Deogracias nevertheless still brought her to the hospital where she was pronounced dead on arrival.[6] The statement of Marvin Juan to the effect that “he was the brother of the accused and that he saw the accused kill their mother” was no longer heard by the trial court because the appellant admitted the truth of such testimony.[7] The prosecution formally offered the following documentary evidences: (1) death certificate (Exhibit “A”) and postmortem examination report (Exhibit “B”) to prove the death of the victim and (2) birth certificate of appellant Marlon Juan to prove that he was the legitimate son of the victim.[8] The defense waived the presentation of appellant’s evidence.[9] On the basis of the evidence presented by the prosecution which was not refuted by the defense, the trial court ruled that it was “clear as the snow of the Alps” that appellant was guilty of the crime of parricide and sentenced him to suffer the supreme penalty of death.[10] Appellant is before us, not to question his conviction for the crime of parricide by the trial court but to question the death penalty imposed on him. Appellant contends that the proper penalty imposable on him is reclusion perpetua, not death.[11] The appeal is meritorious.

Under Article 246 of the Revised Penal Code (hereafter the Code), the crime of parricide is punishable by reclusion perpetua to death. Since the penalty for the crime of parricide is composed of two indivisible penalties (reclusion perpetua to death), the imposition of the proper indivisible penalty on appellant is governed by Article 63 of the Code which provides: Article 63. Rules for the application of indivisible penalties. x x x x x x x x x In all cases in which the law prescribes a penalty composed of two indivisible penalties the following rules shall be observed in the application thereof: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. 3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. 4. When both mitigating and aggravating circumstances attended the commission of the act, the courts shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. Based on the above provision, the presence of any mitigating or aggravating circumstances must first be determined for the imposition of the proper penalty. In this case, no aggravating circumstances were alleged in the information. Thus, no aggravating circumstances can be appreciated against the appellant. With regard to the presence of any mitigating circumstances, we find that appellant is entitled to the mitigating circumstance of voluntary confession of guilt. Article 13 (7) of the Revised Penal Code provides that an accused is entitled to the mitigating circumstance of voluntary confession of guilty if “he had voluntarily confessed his guilt before the court prior to the presentation of evidence by the prosecution.” The following requisites must concur: (1) the accused spontaneously confessed his guilt; (2) the confession of guilt was made in open court, that is, before a competent court trying the case; and (3) the confession of guilt was made prior to the presentation of evidence by the prosecution.[12] In this case, appellant made his confession of guilt before the presentation of evidence by the prosecution since he pleaded guilty during the arraignment. The appellant also confessed voluntarily and spontaneously despite knowing the serious nature of the charge against him.[13] Lastly, appellant made his confession openly, that is, before the judge and the parties in a hearing. Clearly therefore, all the requisites of the mitigating circumstance of voluntary confession were present. With one mitigating circumstance (voluntary confession of guilt) and no aggravating circumstance, Article 63 of the Revised Penal Code provides that “in cases in which the law prescribes a penalty composed of two indivisible penalties. . . [the lesser penalty shall be applied] when the [crime] is attended by some mitigating circumstances and there is no aggravating circumstances.” Thus, since the crime of parricide is punishable by reclusion perpetua to death, the lesser penalty of reclusion perpetua should have been imposed by the trial court on appellant, not the penalty of death. Other than the penalty imposed, we find no error in the ruling of the trial court that the appellant was guilty of the crime of parricide since it was clear that appellant killed his mother. As discussed by the trial court, all the elements of the crime of parricide were clearly and sufficiently proved by the prosecution: As to the first element which is, that a person is killed, there is an overwhelming evidence both testimonial and documentary that absolutely show that Yolanda Juan was killed and died due to stab wounds. The death certificate, Exhibit “A” (p. 6 rec.) lucidly and clearly show that Yolanda Juan died and the cause of death is cardio-respiratory arrest due to multiple stab wounds. Moreover, the accused through his counsel de oficio during the pre-trial conference admitted that the victim died of multiple stab wounds. . . . Finally, the proffered testimony of Marvin Juan, brother of the accused that he saw the accused killed [sic] the victim was admitted by the accused through his counsel. x x x x x x x x x As to the existence of the second element, which is, that the deceased is the mother of the accused, there is no iota of doubt on the part of the court to conclude that the victim is indeed the mother of the accused. Exhibit “C,” the Birth Certificate of accused Marlon Juan (p. 39 rec) . . . indubitably show with clarity that Yolanda

Leste Juan is indeed the mother of . . . the herein accused. Further, the accused through his counsel de oficio admitted during the pre-trial conference that, [he] is the son of the deceased. x x x x x x x x x As to the presence of the third element [the last element] which is, the deceased is killed by the accused, the court again is very certain that the accused is the author of the crime. . . not only because he pleaded “GUILTY” to the crime of “Parricide” but because of the overwhelming evidence that positively identify him as the perpetrator of the offense. Again, during the pre-trial of the case, the accused admitted through his counsel that “he killed the victim on April 23, 2001 at the victim’s residence at Punta, Aparri, Cagayan with the use of a pointed iron bar” (par. 4, Stipulation of Facts, Order dated October 11, 2001; pp. 30-31 rec). Also, the proffered testimony of Marvin Juan, brother of the accused, that “he saw the accused killed the victim” was admitted by the counsel for the accused (Order dated November 21, 2001; pp. 36-37 rec). Finally, the open court testimony of accused’s father, Deogracias Juan, that when his son Marvin shouted “Mother is already dead,” he immediately rose up from where he was lying and proceeded to the place where Marlon was and saw the latter on motion to stab Marvin and saw his wife Yolanda already sprawled on the floor speaks eloquently of the fact that accused Marlon Juan was in the process of a stabbing frenzy. In fact, he was able to injure his brother Marvin after stabbing successively to death his own mother. Thus, the accused having admitted his guilt coupled by the overwhelming evidence positively showing and identifying him to be the killer of his mother; the third element is therefore present.[14] We affirm the above ruling of the trial court for being in accordance with the law and the evidence on record. Consequently, although we uphold the conviction of appellant Marlon Juan of the crime of parricide, the proper penalty is reclusion perpetua, not death. WHEREFORE, the decision of the Regional Trial Court of Aparri, Cagayan, Branch 8, in Criminal Case No. 081318, finding the appellant, Marlon Juan, guilty beyond reasonable doubt of the crime of parricide is hereby AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua instead of death. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-30281 August 2, 1978 THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. CELESTINO GARILLO Y ORJEL alias CELING (deceased) and FEDERICO FERNANDEZ Y ARELLANO AliasPUTOL, accused. T.R. Dominguez for appellant. Office of the Solicitor General for appellee. CONCEPCION JR., J.: Automatic review of the decision rendered by the Circuit Criminal Court of Rizal in Case No. CCC-VII-55 (P.C. 8163), finding the accused Celestino Garillo y Orjel alias Celing and Federico Fernandez y Arellano alias Putol guilty of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of Death; to indemnify the heirs of the offended party the amount of P12,000.00, jointly and severally, and to pay the costs. Celestino Garillo y Orjel alias Celing died in the National Penitentiary at Muntinglupa, Rizal on August 16, 1970 and his appeal was dismissed by the Court December 9, 1970. 1 It is of record that Lim Tao Sing was the owner and operator of the Excel Ice Drop Factory located at No. 2504 Taft Avenue, Pasay City. His uncle, Lim Ping Suy assisted him in the management of said factory. The factory was housed in a two-storey building, the upper floor of which was used by Lim Tao Sing as his sleeping quarters. The ground floor contained the factory equipment and the sleeping quarters of some of the factory workers. Lim Ping Suy resided elsewhere and went to the factory only in the daytime. In the early evening of October 31, 1968, Lim Tao Sing and Lim Ping Suy counted their money, amounting to P3,200.00 which had been set aside for the operating expenses of the factory, such as wages, house rentals, and light and water bills. They also examined the jewelry, consisting of a necklace, a bracelet, a gold ring, a diamond ring, and other kinds of rings, all valued at P1,800.00, which Lim Ping Suy bought for his nephew

and which the latter had intended to send as gifts to his children in China. Afterwards, they put the money and jewelry inside a trunk which Lim Tao Sing kept in his bedroom. Lim Ping Suy then left for home. In the evening of November 1, 1968, All Saints' Day, Henry Barillo and Alejandro Buco alias Tangkad, workers in the factory slept, as usual, on the ground floor of the factory. The room was well lighted with flourescent lamps because the generator of the factory operated for twenty four hours. At about 11:00 o'clock that night, Henry Barillo woke up because he felt that he was being tied up. True enough, Henry Barillo saw his own coworkers at the plant, Tangkad, tying him up, while another person was pointing a gun at him (Barillo). Barillo also saw three more persons, two of whom were armed with knives, emerging from a hole which the culprits made on the plywood wall and then enter the factory. Barillo was ordered to lie face downwards but he saw three men, including Tangkad, go upstairs to the room occupied by Lim Tao Sing. A little later, he heard a shot, followed by the moans of Lim Tao Sing. Soon thereafter, he saw the men coming downstairs. They left the place in a hurry, all of them running. About an hour later, Barillo saw, through the hole in the wall, one Norberto, an ice drop vendor, whom Barillo requested to call for the police. Two policemen arrived and Barillo was untied Then Barillo and a policeman went upstairs. They found the room of Lim ransacked and Lim Tao Sing dead and covered with a mosquito net soaked with his own blood. They saw the box, which had contained the money and jewelry, destroyed and emptied of its contents. The body of the deceased Lim Tao Sing was brought to the NBI morgue for autopsy and the medical examiner reported that Lim Tao Sing died of multiple stab wounds in the body. 2 Three persons, Celestino Garillo y Orjel alias Celing, Alejandro Buco y Valdez alias Tangkad, and Federico Fernandez alias Putol, were arrested and charged with the commission of the crime of Robbery with Homicide. Three other suspects remained at large. Garillo and Fernandez pleaded not guilty while Alejandro Buco y Valdezalias Tangkad entered a plea of guilty and was sentenced by the court to suffer the penalty of reclusion perpetua.3 Garillo and Fernandez were subsequently found guilty of the crime charged and sentenced to suffer the death penalty. Garillo died in prison and his appeal was subsequently dismissed by this Court. Hence, We are concerned only with the case of Fernandez. No doubt, there was a conspiracy to rob the Excel Ice Drop Factory. Alejandro Buco y Baldez alias Tangkad admitted that the plan to rob the Chinaman who owns and operates the Excel Ice Drop Factory was hatched up and proposed to him by Gaudencio Garillo alias Gauding, Celestino Garillo alias Celing, Roberto Quinto alias Berto, and Guillermo alias Emot in the morning of November 1, 1968. 4 The deceased Celestino Garillo y Orjel alias Celing likewise admitted that the plan to rob the said Chinaman was proposed to him by Gauden, Berto and Emot. 5 The accused Federico Fernandez y Arellano alias Putol was also aware of the said plan. He denies, however, that he was a co-conspirator, claiming that he was merely told of the plan to rob the ice drop factory; that he was further told by them that if he did not want to go with them in robbing the Chinaman, he should merely keep quiet and they will give him something, to which he answered that it was up to them that he was asked to accompany them in order to act as look-out or guard outside (bantay sa labas) to which he added because he was afraid of Alejandro Buco y Valdez alias Tangkad who has a tatoo "Simaron- Oxo" in his hands, but that he left the place when the conspirators started to destroy a portion of the wall of the ice drop factory. 6 Counsel de oficio contends that it is obvious from the evidence that the accused Fernandez was not a party to the plan to commit the robbery since he was merely told of the plan and that he never agreed to participate in the commission thereof as shown by his leaving the place when the conspirators started to break the factory's wall preparatory to their entering the premises; and that if Fernandez had made a pretense, in the beginning, of joining the conspirators as a look-out or guard outside, it was because of his fear of displeasing the mastermind, Alejandro Buco alias Tangkad, who was a member of the notorious OXO gang and had a tattoo mark Simaron-Oxo " in his hands. The disclaimer of participation in the conspiracy and desistance in the commission thereof is, however, negated by the statement of Fernandez that he fled to Barrio Bicutan, Taguig, Rizal very early in the morning of the next day and thence to Angeles, Pampanga where he stayed in a house together with some of the conspirators. His statement reads, as follows: t Iyo bang nalaman kung ano ang nangyari sa binalak o pinagusapan ninyong holdap sa intsik sa loob ng pabrikang ice drop? s Ang nalaman ko po ay pinatay nila ang intsik, dahil sa huli si Celing (Celestino Garillo) na tumakbo at sinabi sa akin na huag akong maingay at napatay namin ang intsik. t Ng malaman mo ang nangyari, ano ang iyong ginawa?

s Kinabukasan ng umagang-umaga puminta ako kay Dado (Diosdado Paraiso y Flores, 26, lab., add — Bo. Bicutan, Tagig, Rizal), sa kanila sa Bicutan Tagig, Rizal at akin ipinagtapat ang nangyari. Ang ginawa niya ay isinama ako sa Angeles, Pampanga at iniwanan ako ruon para don na ako magtabas ng tubo, dahil ngayon ng tabasan ng tubo. t Magkano ang na parte mo sa holdap na isinagawa ninyo? s Wala po, dahil ng magkita-kita kami ni Berto at Goding sa Angeles, Pampanga at akin tinanong kung ano na ang nangyari ang sinabi po nila sa akin ay walang nakuha dahil pumutok ang baril at napatay ang intsik dahil sa lumaban. xxx xxx xxx t Sino naman ang nagsama kay Goding at Berto sa Angeles, Pampanga? s Si Berto si Berto ang nagsama kay Goding, dahil bayaw no Dado (Diosdado Paraiso) at meon o kapatid ni Berto ang amin tinuluyan. (See Exh. M, pp. 78, Orig. Record). If Fernandez were innocent as he claimed to be, there is no reason for him to run away and hide together with some of the conspirators. "The wicked flee when no one is chasing them. But the godly are bold as lions. 7 The evidence thus presented proves conspiracy and that the accused Federico Fernandez not only knew of the plan to rob Lim Tao Sing, but also participated in its commission by previous and simultaneous acts (by acting as look-out or guard outside) which lent to the accomplishment of the criminal intent. Although the said accused may not have foreseen the killing of the victim and did not take part in its execution, he is, nevertheless, guilty of the crime of robbery with homicide. The rule is that when homicide takes place as a consequence of or on occasion of a robbery, all those who took part in the robbery shag be guilty as principals of the crime of robbery with homicide, unless there is proof that they have tried to prevent the killing. 8 Here, there is nothing in the record which would show that the accused Fernandez ever attempted to prevent the homicide. The said accused is, therefore, guilty of the crime of robbery with homicide, covered by Article 294, No. 1, of the Revised Penal Code. The trial Court found that the commission of the crime was attended by the aggravating circumstances of nighttime, superior strength, evident premeditation, and treachery. Evident premeditation, however, if not considered. Is an aggravating circumstances in crimes Of robbery because the same is inherent in the crime, especially where it is committed by various persons since there must be an agreement and the plotters have to meditate and reflect on the manner of carrying out the crime and they have to act coordinately in order to succeed. In the crime of robbery with homicide, there should be evident premeditation to kill besides stealing, in order that it can be considered as an aggravating circumstance. 9 In the instant case, it has not been proven that the accused, before committing the crime, planned and decided, not only to steal, but also to kill Lim Tao Sing. Hence, evident premeditation cannot be considered as an aggravating circumstance in this case. Abuse of superior strength cannot also be appreciated in the instant case in the absence of proof of the relative physical strength of the aggressors and the victim and that the assailants took advantage of their combined strength in order to consummate the offense. 10 Treachery is likewise absent in this case since the attack was made upon the impulse of the moment, as a sequence of the unexpected turn of events. 11 It appears that while Tangkad, Celing, Gauden, and Berto were in the second floor, used by Lim Tao Sing as his sleeping quarters, the gun held by Gauden hit a table and misfired. As a result, Lim Tao Sing rose from his bed holding a bolo. So, some of the accused stabbed him. 12 But, nocturnity is present since the accused purposely sought the cover of darkness of the night in committing the crime. However, this aggravating circumstance is offset by the mitigating circumstance that appellant suffers some physical defect which thus restricts his means of action, defense, or communication with his fellow beings, to wit: appellant's right hand is missing as a consequence of an accident involving kuwitis" which occurred on New Year's eve of 1966. 13 Premises considered, the judgment imposed upon the accused Fernandez should be reduced to reclusion perpetua. WHEREFORE, modified as thus indicated the appealed decision is hereby affirmed in an other respects. SO ORDERED. Fernando, Barredo, Makasiar, Aquino, Santos, Fernandez and Guerrero, JJ., concur. Castro, J., concurs in the result. Teehankee and Antonio, JJ., took no part.

Separate Opinions MUÑOZ PALMA, J., dissenting: The evidence of the prosecution to which Judge Onofre A. Villaluz of the Criminal Circuit Court of Rizal referred for his findings that Federico Fernandez was a co-principal in the commission of the robbery and killing of the chinaman Lim Tao Sing, consist solely of the oral testimony of the alleged lone eyewitness Henry Barillo, the extrajudicial statement of one of the accused Celestino Garillo marked as Exhibit "D" and that of appellant herein Federico Fernandez marked as Exhibit "M". 1 Thus, the trial judge stated inter alia in his decision that: (a) "after tying Henry Barillo, the accused Celestino Garillo, armed with a balisong, Federico Fernandez and Roberto Guinto, both were armed, entered the said factory" (p. 11 of decision); (b) "the three accused in this case were positively Identified by the witness Henry Barillo" (p. 23, Ibid.); and (c) "based on the statements of the two accused, marked as Exhibits 'D' and 'M' the said accused, Celestino Garillo and Federico Fernandez acknowledged having committed the crime when all of them were armed with deadly weapons and firearms. "(ibid.) (Emphasis supplied) The above findings insofar as Federico Fernandez is concerned are not borne out by evidence alluded to by His Honor. The testimony of the prosecution witness Barillo given during the direct as well as the cross examination shows that this witness positively Identified only two of the accused in the case, namely, Alejandro Buco alias "Tangkad", who pleaded guilty and Celestino Garillo alias "Celing" now deceased. 2 While it is true that Barillo declared that aside from the accused Alejandro Buco alias "Tangkad" who tied him with a rope and accused Celestino Garillo who pointed a gun at him, three other persons entered the factory through an opening made on the plywood wall, he never mentioned the name of appellant Federico Fernandez alias "Putol" as one of the three other persons who entered the factory nor did he point at and Identify Fernandez in open court as one of the perpetrators of the crime charged. Let us now examine and analyze the documentary evidence Exhibits "D" and "M", Exhibit "D" is the extrajudicial statement of the accused now deceased Garillo. The pertinent portions of the statement are quoted hereunder: xxx xxx xxx T Kung gayon isalaysay mo sa iyong sariling pananalita kung papaano naganap ang sinasabi mong pagkakahold-up at pagkakapatay sa intsik. S Ang natatandaan ko, nuong pista ng patay, mga alas 9:00 ng gabi, pumunta sina Gaudin ang pangalan na tunay niya, Gaudencio Garillo, Berto, tunay na pangalan, Roberto Quinto, saka si Emot pangalan, Guillermo, hindi ko alam ang apilyido niya, sa kinaroruonan, ko sa may tambakan sa likuran ng terminal ng LTB sa Pasay; Inaya nila ako na pumunta kami sa pabrika ng Ice Drop sa Taft Ave. Pasay; Sumama naman ako sa kanila; Nagdaan muna kami sa bahay nila Putol (Federico Fernandez) diyan sa malapit sa Zamora St., dito rin sa Pasay; Inabutan namin siya duon; T Bago ka sumama sa tatlong kataong sinasabi mo, sina Ber to, Gauden at Emot ano naman ang sabi nila sa iyo na inyong pupuntahan nuon? S Mayroon daw intsik na hohold-apin namin T Sa kabila ng pagkaka-alam mo na gayon nga anginyong gagawin, sumama ka pa rin sa kanila, ganoon ba? S Sumama na rin ako sa kanila. T Bago kayo nakarating sa inyong pinuntahan na pabrika ng ice drop sa Taft Ave., ano naman ang inyong pinag-usapan sa dean? S Basta sumama raw ako, mayroon hohold-apin, sila ang bahala. T Ng kayo'y dumating sa bahay nitong si Putol na sinasabi mo, ano pa ang sumunod na pangyayari. S Napag-usapan namin duon kung ano ang gagawin ng bawat isa sa namin na pang-hohold-up; Napag-usapan namin duon, si Tangkad ang nakaka-alam lahat ng gagawin; Pinuntahan na namin iyong pabrika ng ice drop; Si Tangkad nuon, nasa loob na ng ice drop factory; Itong si Gauden, pumasok sa butas duon sa may likod ng bahay; Tapos, sumunod na ako sa kaniya: Nandoon na kami sa loob ng pabrika; Inabutan na naman si Tangkad sa loob; Ng nandoon na kami nina Gauden, Tangkad, sumunod itong si Berto sa loob; Ngayon, apat na kami sa loob; Naiwanan si Emot saka si Putol sa labas ng pabrika; Nakita namin sa ibaba ang isang tao, nakagapos na iyon; T Nalalaman mo ba naman kung sino ang may gawa nito? S Nalaman ko na lang ng nasa loob na kami na siTangkad ang naggapos niyon. xxx xxx xxx

T Bago kayo magtungo sa pinang-hold-apan ninyo na ayon sa iyo, sino-sino naman ang nalalaman mong may dala ng mga patalim nuon? S Si Gauden, may dalawang dala, isang balisong, isang paltik, kasi isang putok lang ang baril eh; Si Tangkad, balisong din ang hawak, nakita ko iyon sa loob eh; Si Berto may dala rin balisong din iyon; Ako, may dala rin balisong, bente nueve; Si Emot hindi ko alam kung may data; Si Putol, wala, basta duon lang siya sa labas: xxx xxx xxx (65-67, original record) The foregoing demonstrates that (1) Fernandez did not enter the ice drop factory but remained outside during the robbery, and (2) Fernandez was not at all armed on that occasion. Exhibit "M" is the extrajudicial statement of appellant Fernandez wherein the latter narrated about the plan to rob the chinaman in the ice drop factory and named the five persons hatching the plan; that he was asked to go with the group to stand guard outside the factory; that they all went to the ice drop factory as named and he stood outside as instructed; that while his companions were breaking down the wan he left the place and went home, and some time later he heard a shot. Quoted hereunder are the pertinent portions of Exhibit "M" xxx xxx xxx T Ano ang kaugnayan at nalaman mo tungkol sa sinasabi mong hold-up sa intsik? S Ganito po iyan. Ako po ay pinuntahan nila sa bahay, dahil sa alam nila na palagi akong istambay sa ice drapan malapit po ang bahay ko sa ice drapan Sinabi nila sa akin na huhold-apin ang intsik na katiwala sa pabrika ng ice drop. Halagang limang libo (P5,000.00) raw po ang nakuha. Ang sabi nila kung ayaw ko man sumama ay basta huag na lang akong maingay at sila ang bahala. Bibigyan na lang nila ako. Ang sagot ko po sa kanila ay kayo ang bahala. Umalis na sila. Pagkagabihan bumalik po sila sa akin sa bahay, mga pagitan nga po ng alas 11 at 12 ng gabi, Nobiembre 1, 1968. Papasukin at huhold-apin na nga po ang intsik sa loob ng pabrika. isinama po ako para bantay sa labas at sila ang papasok. T Bago ka magpatuloy sa iyong salaysay, sinu-sinong sila ang nais mong tukuyin na siyang nagdaan sa iyo sa bahay at pinagusapan ang hold-up sa intsik sa loob ng pabrika ng ice drop? S Si Gaudencio, si Berto, ito po si Celing (Celestino Garillo y Orgel, 18, s, porter sa Divisoria Market, add - 551 E. De los Santos Ave., PC), si Imot at saka si Tangkad, (declarant pointing to Alejandro Buco y Valdez, @ "CIMARON", 32, m. lab., address, Bakawan St., Pasong Tamo, Makati Rizal). Lima (5) po silang lahat at bilang pang anim (6) ako. T Dito sa lima (5) na nagpunta sa iyo sa bahay at nagsabi sa iyo na huhold-apin ang intsik sa loob ng pabrika ng ice drop at ikaw ay pinagsasama pa para bantay, ilan ang iyong talagang kilala? S Sila pong lahat ay kilala ko, dahil sa madalas ho silang magpunta sa pabrika hanggang sa kami po ay magkakilakilala. T Ito ba rin lima (5) na iyong binanggit sa una ang siyang sinasabi mong bumalik sa iyo sa bahay ng gabi rin ng Nobiembre 1, 1968, pistang mga patay para isagawa ang hold-up na binalak o pinag-usapan ng tanghali ng araw ng pista ng patay Nobiembre 1, 1968? S Sila rin pong lahat. T Ipagpatuloy mo ang iyong salaysay, tumigil ka sa ikaw ay isinama para bantay sa labas at sila ang papasok. S Opo. Ng sinisira po nila ang dingding ng pabrika ng ice drop, ang ginawa ko po umuwi ako sa bahay namin. Hindi nagtagal nadinig ko pumutok. Ngayon pagkaraan po ng putok na iyon ay nakita kong nagtakbuhan sila. Sa tabi po ng bahay sila nagdaan. Umakyat sila sa pader dahil sarado na po ang pinto papuntang Zamora. Hindi ko na po nalaman kung saan sila mga nagpunta. T Iyo bang nalaman kung ano ang nangyari sa binalak o pinagusapan ninyong holdup sa intsik sa loob ng pabrikang ice drop? S Ang nalalaman ko po ay pinatay nila ang intsik dahil sa huli si Celing (Celestino Garillo) na tumakbo at sinabi sa akin na huag akong maingay at napatay namin ang intsik. xxx xxx xxx (pp. 77-78, original record) Nowhere in the foregoing narration of Federico Fernandez did he ever admit that he was armed on that occasion, or that he entered the factory with the group, as stated in the trial court's decision. On what then can the conviction of appellant Fernandez stand? There is proof of the corpus delicti that is, the robbing and killing of the chinaman—yes, that is true; but what evidence links Fernandez to the crime committed? I agree with appellant's de oficio counsel, Atty. Teodoro R. Dominguez, that there is none under the law.

As there is nothing in the testimony given in court by the witness Henry Barillo which directly or indirectly connects Federico Fernandez to the robbery and killing of the ice drop factory owner, all that We have are the extrajudicial statements Exhibits "D" and "M", and We may even include Exhibit "L" which is the statement of the other accused Alejandro Buco. Defense counsel correctly argues in his brief that Exhibits "D" and "L" are "incompetent and inadmissible evidence against his client, Federico Fernandez" (p. 17 of brief) invoking the maxim res inter alias acta alteri nocere non debet embodied in section 25, Rule 130 of the Rules of Court which provides: The rights of a party cannot be Prejudiced by an act, declaration, or omission of another, and proceedings against one cannot affect another, except as hereinafter provided. It is a settled rule. hat an extrajudicial confession made by a defendant is admissible against him but not against his codefendant as to whom said confession is hearsay evidence for he had no opportunity to examine the former. 3 And on the premise that appellant Fernandez is alleged to be a co-conspirator, We have the rule that the act or declaration of a conspirator relating to the conspiracy or its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. 4 In order that Exhibits "D" and "L" may be admitted as evidence against appellant Fernandez as a coconspirator it is necessary that there be proof of the conspiracy independent of said extrajudicial statements; here there is no such independent proof and in its absence, no conviction can stand simply on the basis of said statements. 5 Another point not to be overlooked is that the accused Garillo while testifying in court in his defense denied that he implicated Federico Fernandez in his statement, Exhibit "D". 6 Verily, it is well to repeat here what the Court pronounced in People vs. Custodio that "considering the farreaching consequences of criminal conspiracy, the same degree of proof required for establishing the crime is required to support a finding of its presence, that is, it must be shown to exist as clearly and convincingly as the commission of the offense itself." 7 Finally, there is the supposed "confession", Exhibit "M" wherein according to the trial Judge, the appellant Fernandez acknowledged having committed the crime." In my view Exhibit "M" is not to be given the weight and evidentiary value of an extrajudicial confession of guilt. As already indicated earlier, Fernandez narrated in Exhibit "M" the plan of five persons to rob the owner of the ice drop factory and that he was asked to accompany those persons and to act as guard outside the factory and on the particular evening they all went to the place. But that was all insofar as he was concerned, for according to appellant while he was standing outside the factory and the five persons were breaking open the wall he left the place and went home. This is an act of voluntary desistance. The distinctive feature of a confession is that it must be an acknowledgment of guilt without any exculpating statements or explanation. However, if the prosecution undertakes to prove statements of the accused as his confession, any exculpating statements which he made at the time are admissible in his favor. (Bram vs. United States, 168 U.S. 532, 42 L.ed. 568 16 S. Ct. 183, cited in Martin, Rules of Court in the Philippines, Vol. 5, 1974 Ed., p. 251) There is in every design or plan to commit a crime a place of repentance or locus penitentiae whereby the one planning to commit it may abandon the Idea and thus avoid criminal liability. This is true where one of the persons who has entered into a conspiracy, necessarily involving an overt act, abandons the plan before the act if done. (15 Am Jur § 333, p. 22 citing U.S. v. Britton, 108 U.S. 199, 27 L. ed. 698, 2 S. Ct. 531; State v. Webb, 216 Mo 378, 115 S.W. 998, 20 L.R.A. (N.S.) 1142, 129 Am. St. Rep. 518, 16 Ann. Cas 518) Article 6, paragraph 3 of the Revised Penal Code exempts from liability those who spontaneously desist from the commission of a felony. The voluntary desistance of appellant herein from the criminal act of assisting his co-accused before the crime was committed warrant-his acquittal. One last point. The main Opinion of the Court heavily relies on the statement of appellant Fernandez in Exhibit "M" that he went to Barrio Bicutan, Taguig, Rizal very early in the morning of the next day and thereafter to Angeles, Pampanga where he stayed in a house together with the other accused, Berto and Gauden, as indicative of his guilt. It is the better rule however that evidence of flight is not substantive evidence of guilt; 8 that it is merely a circumstance tending to establish guilt, not in itself conclusive, nor can it create a legal presumption of guilt. 9

In the absence of separate admissible evidence tending to establish the guilt of appellant Federico Fernandez, his departure for Angeles, Pampanga is at the most a circumstantial evidence but insufficient in itself to warrant his conviction. ACCORDINGLY, I vote for the acquittal of Federico Fernandez EN BANC [G.R. Nos. 140407-08. January 15, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 RENATO F. VILLAMOR and JESSIE “Joy” MAGHILOM (At Large), accused. PO3 RENATO F. VILLAMOR, accused-appellant. [G.R. Nos. 141908-09. January 15, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 RENATO F. VILLAMOR and JESSIE “Joy” MAGHILOM (At Large), accused. PO3 RENATO F. VILLAMOR, accused-appellant. DECISION YNARES-SANTIAGO, J.: At around dusk of November 24, 1995, brothers Jerry Velez and Jelord Velez were on their way home to Barangay Mitakas, Baliangao, Misamis Occidental, on board a motorcycle after having dinner at a friend’s house at Barangay Landing, Baliangao, Misamis Occidental. Jerry was driving. As they neared the junction of Barangays Lusot and Mitakas, they heard a speeding motorcycle fast approaching from behind. The brothers ignored the other motorcycle, which caught up with them. As they were about to cross the bridge leading to their home, gunshots rang out from behind them. They abruptly turned the motorcycle around towards the direction of the gunfire. The light of their motorcycle’s headlamp fell on their attackers aboard the second motorcycle. The assailants fired at them a second time and fled towards the direction of Calamba, Misamis Occidental. Jerry sustained gunshot wounds on the abdomen and left elbow, but survived. He got a good look at their assailants. Jelord, however, was not as fortunate, as he died on the spot during the first gunburst. For the deadly assault on the Velez brothers, PO3 Renato F. Villamor and Jessie “Joy” Maghilom were indicted for Murder in Criminal Case No. 1312-36-14 in an Information which reads: That on or about November 24, 1995, in Baliangao, Misamis Occidental, and within the jurisdiction of this Honorable Court, accused PO3 Renato F. Villamor, public officer, being a member of the Philippine National Police, conspiring and confederating with accused Jessie “Joy” Maghilom, likewise a public officer, being a Barangay Councilman, with treachery and intent to kill, did then and there, wilfully, unlawfully and feloniously shoot Jelord Velez, inflicting upon him mortal wounds that caused his death. CONTRARY TO LAW.[1] A charge of Frustrated Murder was likewise filed, docketed as Criminal Case No. 631-14-68-36-27, under an Information which reads: That on or about November 24, 1995, at about 6:30 in the evening in Baliangao, Misamis Occidental, and within the jurisdiction of this Honorable Court, accused P03 Renato F. Villamor, public officer, being a member of the Philippine National Police, conspiring and confederating with Jessie “Joy” Maghilom, likewise a public officer, being a Barangay councilman, with treachery and intent to kill, did then and there, wilfully, unlawfully, and feloniously shoot Jerry Velez who as a result thereof, suffered gunshot wounds on the left upper quadrant abdomen and stomach which ordinarily would cause the death of said Jerry Velez, thus performing all the acts of execution which should have produced the crime of murder as a consequence but which, nevertheless, did not produce it by reason of causes independent of their (accused) will, that is, by the timely and able medical attendance rendered to said Jerry Velez which prevented his death. CONTRARY TO LAW.[2] By agreement of the parties, the two cases were tried jointly. [3] At the pre-trial conference, the following facts were stipulated: 1. The identity of accused PO3 Renato F. Villamor to be the very same person who is one of the accused in the two above-entitled criminal cases; 2. The defense admitted that in Criminal Case No. 1312-36-14, the victim is Jelord Bongcaron Velez who was killed in the evening of November 24, 1995 in Baliangao, Misamis Occidental; 3. The defense admitted in Criminal Case No. 631-14-68-36-27 that Jerry Velez was shot and wounded in the evening of November 24, 1995 at Baliangao, Misamis Occidental;

4. In Criminal Case No. 1312-36-14, the defense admitted the authenticity and genuineness of the Certificate of Death of Jelord Bongcaron Velez, issued by Public Health Officer Nelson R. Abrinez; 5. In Criminal Case No. 631-14-68-36-27, the defense admitted the authenticity and genuineness of the Medico Legal Certificate dated March 22, 1996, issued in favor of Jerry Velez by Medical Officer III Olyzar H. Recamadas, as attested to by Chief of Clinics designate Livera A. Amil, M.D.[4] Upon arraignment, only accused PO3 Renato F. Villamor pleaded “not guilty” to the crimes charged.[5] His coaccused, Jessie “Joy” Maghilom, remained at large, hence, trial proceeded only with respect to accused Villamor. After trial, the Regional Trial Court of Calamba, Misamis Occidental, Branch 36, rendered judgment as follows: WHEREFORE, premises considered, finding accused PO3 Renato F. Villamor guilty beyond reasonable doubt of having committed the crime of MURDER in Criminal Case No. 1312-36-14 as defined and penalized in Art. 248 of the Revised Penal Code with the presence of one aggravating circumstance of taking advantage of his public position as a policeman, accused PO3 Renato F. Villamor is hereby sentenced to the penalty of DEATH. PO3 Renato F. Villamor is hereby further ordered to pay the legal heirs of the late Jelord Velez the amount of FIFTY THOUSAND PESOS (P50,000.00) and another amount of THIRTY-NINE THOUSAND SIX HUNDRED FIFTY-TWO AND FIFTY-TWO CENTAVOS (P39,652.52) representing the expenses for the construction of the tomb, coffin and the expenses for the vigil and prayers of the late Jelord Velez. In the FRUSTRATED MURDER docketed as Criminal Case No. 631-14-68-36-27, accused PO3 Renato F. Villamor is likewise found guilty beyond reasonable doubt of having committed the crime of FRUSTRATED MURDER as defined in Art. 248 of the Revised Penal Code in relation to Art. 6 and Art. 50 of the same Revised Penal Code and there being an aggravating circumstance of taking advantage of his public position as a policeman and applying the Indeterminate Sentence Law, accused PO3 Renato F. Villamor is hereby sentenced to a penalty of imprisonment of NINE (9) years of prision mayor as the minimum to EIGHTEEN (18) YEARS of reclusion temporal as the maximum. PO3 Renato F. Villamor is further ordered to pay to Jerry Velez and his family the amount of FORTY-SEVEN THOUSAND, NINE HUNDRED FIFTY-FIVE PESOS (P47,955.00) representing the medical expenses to include already the medical operation and hospitalization incurred by Jerry Velez and his family. SO ORDERED.[6] On automatic review before this Court, accused-appellant alleges – I. THAT THE HONORABLE LOWER COURT, THE HONORABLE REGIONAL TRIAL COURT, BRANCH 36, CALAMBA, MISAMIS OCCIDENTAL, GRAVELY ERRED IN ASSAILING THE DEFENSE OF ALIBI SIMPLY BECAUSE THE DISTANCE OF THE CRIME SCENE TO THE PLACE WHERE ACCUSED PO3 RENATO F. VILLAMOR WAS, AT THE TIME OF THE INCIDENT WAS (sic) VERY NEAR AND IT WOULD BE POSSIBLE FOR HIM TO BE AT THE CRIME SCENE. II. THAT THE HONORABLE LOWER COURT, THE HONORABLE REGIONAL TRIAL COURT, BRANCH 36, CALAMBA, MISAMIS OCCIDENTAL, GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF JERRY VELEZ WHEN AS AN OFFENDED PARTY AND VICTIM NATURALLY WOULD PROTECT HIS INTEREST WHEN IN TRUTH AND IN FACT HIS TESTIMONY WAS NEVER CORROBORATED BY OTHER WITNESSES OF THE PROSECUTION. III. THAT THE HONORABLE LOWER COURT, THE HONORABLE REGIONAL TRIAL COURT, BRANCH 36, MISAMIS OCCIDENTAL, GRAVELY ERRED IN NOT HOLDING THAT THERE WAS NO REASON OR MOTIVE WHATSOEVER WHY SHOULD ACCUSED PO3 RENATO F. VILLAMOR SHOULD (sic) WISH THE DEATH OF JELORD VELEZ AND JERRY VELEZ.[7] The prosecution established that when the brothers turned around to face their assailants, Jerry saw Villamor and Maghilom on board the motorcycle behind them. Maghilom was driving the motorcycle while Villamor was holding a short gun pointed at them. Jerry sensed that Jelord’s grip on his back slackened. Jelord fell off the motorcycle and died on the spot. As Jerry neared the bridge, Villamor again fired at Jerry, hitting him on the abdomen. The two assailants drove away. When Jerry arrived at their house, he told his other brother, Jelvis, about the incident. They rushed Jelord to the Calamba District Hospital, but he was transferred to the Misamis Occidental Provincial Hospital, Oroquieta City. Meanwhile, Jerry was treated at the Provincial Hospital and, later, at the Metro Cebu Hospital. The autopsy conducted by Dr. Nelson Gabrinez, Public Health Officer of Baliangao, on the cadaver of Jelord Velez showed several wounds on the chest, mid-clavicular area, abdomen and right diaphragm. The cause of death was indicated as multiple gunshot wounds.

On the other hand, Dr. Olayzar Recamadas of the Provincial Hospital examined Jerry Velez and found that he sustained “a gunshot wound [on the] left quadrant abdomen penetrating abdominal cavity with injury to stomach, mesentery transverse colon, hemoperitoneum.”[8] Dr. Recamadas testified that without prompt medical attendance, Jerry could have died of “zero-zero (0-0) blood pressure.”[9] For his defense, accused-appellant Villamor claimed that he was not at the scene of the crime at the time of its occurrence. He testified that on November 24, 1995, at around 5:00 p.m., he was in Barangay Landing as security escort of Mayor Agapito Yap III, which was among his duties as a member of the Philippine National Police assigned to the Office of the Mayor of Baliangao.[10] The Mayor and his entourage, which included accused-appellant, left Baliangao for Barangay Landing at about 9:00 a.m.[11] They arrived there at 10:00 a.m.[12] InBarangay Landing, Mayor Yap visited the Barangay Captain and had lunch.[13] From there, the Mayor and his entourage proceeded to the cockpit to attend a derby.[14] At around 5:00 p.m., accused-appellant went home to take his child, who was suffering from diarrhea, to the clinic for treatment. [15] He arrived at the Yap Clinic but was advised to go to the Calamba DistrictHospital.[16] Accused-appellant then radioed for an ambulance to bring his ailing child to the hospital. Since there was no ambulance available, he borrowed a vehicle from Mayor Yap. On board a jeep driven by Alvin Itum, accusedappellant left Baliangao at 5:30 p.m. When they passed the bridge at the junction of Barangays Lusot and Mitakas, they noticed no untoward incident. They arrived at the Calamba District Hospital at 7:00 p.m.[17] Accused-appellant’s child was confined at the said hospital for three days.[18] From the time he brought his child for confinement on the date of the incident, accused-appellant never went back to Baliangao. The only occasion he left the hospital premises on November 24, 1995 was when stepped out to buy biscuits and orange drink at the store 80 to 100 meters away.[19] Accused-appellant testified that he only came to know of the incident when he was informed of it by Isyong Lomoljo.[20] He claimed having talked with Jerry Velez for several minutes at the hospital at around 7:30 to 8:00 p.m.[21] Jerry told him he could not identify the assailants because it was dark.[22] Accused-appellant averred that he was implicated in the incident because of “political reasons.” The Velezes and the Yaps were political rivals.[23] Accused-appellant argues that even granting that the place where the crime was committed was near, it would still be impossible for him to go there and commit the crime because he was attending to his sick son. We disagree. Accused-appellant’s profession of innocence cannot prevail vis-à-vis his positive identification as the gunman by eyewitness-victim Jerry Velez, who testified thus: Q You said you were shot. In fact, Jelord Velez was hit what did you do when you noticed your brother was hit? A I noticed that his grip on my shoulder was loosen[ed]. Q If you have noticed that his grip was loosen[ed], what did you do then? A I let the motorcycle turn around. Q What did you see when the motorcycle turned] around? A I saw Joy Maghilom and P03 Renato Villamor. Q What did you do when you see (sic) them? A I was frightened. I was afraid. Q Do you know who shot your brother when you said you were fired [upon]? A Yes, I know him. Q Whose (sic) that person? A P03 Renato Villamor. Q Is he in court this morning? A Yes. Q Please point again. INTERPRETER: Witness pointed to the person and when I asked him, he answered PO3 Renato Villamor. Q You said that when you noticed that your brother’s grip was loosen[ed] you turned around the motorcycle and you saw Renato Villamor and Joy Maghilom, were they riding also a motorcycle? A Yes. Q Why were you able to recognize them? A Because they were lighted by the light of the motor.

Q Very clear? A Yes, very clear. Q How far where you able to turned (sic) around the motor and when you said they were lighted by the motor? A Two (2) meters.[24] Despite repeated attempts by the defense counsel to throw him off track during cross-examination, Jerry remained resolute and unflinching in his account that he and his brother were fired upon by accused.[25] In stark contrast to the clear and categorical declarations of the victim, accused-appellant merely raised alibi as his defense. However, such a defense is unavailing given the facts prevailing herein. The Court has consistently looked upon the defense of alibi with suspicion and received it with caution not only because it is inherently weak and unreliable but also because it can be easily fabricated.[26] Unless supported by clear and convincing evidence, the same cannot overcome the positive declarations of the victim who, in a simple and straightforward manner, convincingly identified the accused-appellant as one of the perpetrators of the crime. Contrary to accused-appellant’s contention, he failed to establish that it was physically impossible for him to be at the scene of the crime at the time it was committed. Since the distance between his alleged whereabouts and the place of the incident was, by his own admission “very near,” [27] it was not impossible for accused-appellant to be at the scene of the crime at the time of its commission. [28] His argument that he was attending to his son who was in the hospital is simply unavailing. In the second assigned error, accused-appellant assails the trial court’s reliance on the lone and uncorroborated testimony of eyewitness-victim Jerry Velez. We remain unconvinced. It must be stressed in this regard that the testimony of a single witness is sufficient to establish the guilt of the accused for evidence is weighed not counted.[29] Indeed, the testimony of a single witness, if positive and credible, is sufficient to convict the appellant even in a murder charge. [30] In view of the foregoing considerations, accused-appellant’s argument that he has no motive for committing the crime must likewise fail. Suffice it to state that ill motive is never an essential element of a crime. It becomes inconsequential where there are affirmative, nay, categorical declarations towards the accusedappellant’s accountability for the felony.[31] Such is the case here. All told, an overall scrutiny of the records of this case leads us to no other conclusion but that the trial court did not err in finding accused-appellant and his co-accused guilty of murder. The core issue raised by accused-appellant centers on the credibility of the witnesses. The doctrinal rule is that findings of fact made by the trial court, which had the opportunity to directly observe the witnesses and to determine the probative value of the other testimonies are entitled to great weight and respect because the trial court is in a better position to assess the same, an opportunity not equally open to an appellate court. [32] Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last resort. She oft hides in nooks and crannies visible only to the mind’s eye of the judge who tries the case x x x x. The brazen face of the liar, the glibness of the schooled witness in reciting a lesson, or the overeagerness of the swift witness, as well as honest face of the truthful one, are alone seen by him. [33] The Information indicting accused-appellant for Murder alleged that treachery aggravated by abuse of public authority attended the killing of the victim. We agree with the trial court that the killing of Jelord Velez was attended by treachery or alevosia. There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.[34] The qualifying circumstance of treachery attended the killing inasmuch as the two conditions for the same are present, i.e., (1) that at the time of the attack, the victim was not in a position to defend himself, and (2) that the offender consciously adopted the particular means, method or form of attack employed by him.[35] The essence of treachery is the swift, sudden and unexpected attack by the aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor, and without the slightest provocation on the part of the victim.[36] The treacherous manner in which accused-appellant and Jessie “Joy” Maghilom perpetrated the crime is shown not only by the sudden and unexpected attack upon the unsuspecting and apparently unarmed victims but also by the deliberate manner in which the assault was perpetrated. In this case, a totally unsuspecting Jelord Velez held onto his brother Jerry on board their motorcycle on their way home blissfully

unaware of the onrushing peril behind them. As in the recent case of People v. Padilla,[37] treachery is evident when the accused-appellant suddenly positioned himself at the back of the unsuspecting victim, pointed his gun at him and, without any warning, promptly delivered the fatal shots. In short, the victim was unaware of the attempt on his life and the danger that lurked behind him. There was no way the victim could have defended himself, taken flight or avoided the assault. The attendance of treachery qualifies the killing to Murder. The Court, however, agrees with the Solicitor General that the trial court improperly applied the aggravating circumstance of taking advantage of public position as provided for in Article 14, paragraph 1 of the Revised Penal Code. To appreciate this aggravating circumstance, the public officer must use the influence, prestige or ascendancy which his office gives him as a means by which he realizes his purpose. The essence of the matter is presented in the inquiry “Did the accused abuse his office to commit the crime?”[38] In this case, there was no showing that accused-appellant took advantage of his being a policeman to shoot Jelord Velez or that he used his “influence, prestige or ascendancy” in killing the victim. Accusedappellant could have shot Velez even without being a policeman. In other words, if the accused could have perpetrated the crime even without occupying his position, there is no abuse of public position.[39] Only recently, in People v. Herrera,[40] the Court emphatically said that the mere fact that accused-appellant is a policeman and used his government issued .38 caliber revolver to kill is not sufficient to establish that he misused his public position in the commission of the crime.[41] There being no modifying circumstances to be appreciated, the proper imposable penalty for the killing of Jelord Velez is reclusion perpetua, pursuant to Article 63, paragraph 2 in relation to Article 248 of the Revised Penal Code, as amended by R.A. No. 7659.[42] So, too, must the penalty imposed by the trial court for Frustrated Murder be modified considering that it necessarily arose from the same incident which caused the death of one of the victims. While we agree with the lower court that the penalty for a frustrated felony is one degree lower than that of a consummated crime, pursuant to Article 50 in relation to Article 6 of the Revised Penal Code, the proper penalty in the absence of any modifying circumstances is likewise to be imposed in its medium period in accordance with Article 64, paragraph 1 of the Code. In this case, the proper imposable penalty for Frustrated Murder is Reclusion Temporal in its medium period, which has a range of Fourteen (14) Years, Eight (8) Months and One (1) Day to Seventeen Years and Four (4) Months. The penalty one degree lower than Reclusion Temporal is Prision Mayor, from which the minimum term of the indeterminate penalty imposable on accused-appellant shall be taken. In line with prevailing jurisprudence,[43] the Court affirms the award of P50,000.00 as civil indemnity for the death of the victim, even in the absence of proof other than the death of the victim.[44] Moral damages should likewise be awarded by the trial court to the victims’ heirs in the case for Murder, pursuant to controlling jurisprudence on the matter.[45] Moral damages are pegged at P50,000.00,[46] taking into consideration the pain and anguish of the victim’s family brought about by his death.[47] The award for the funeral and burial expenses incurred by heirs of Jelord Velez as well as the medical expenses for the treatment of Jerry Velez, being amply supported by documentary evidence are likewise sustained. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Calamba, Misamis Occidental in Criminal Cases Nos. 1312-36-14 and 631-14-68-36-37, finding accusedappellant guilty beyond reasonable doubt of Murder and Frustrated Murder, respectively, is AFFIRMED with MODIFICATION. As modified, accused-appellant PO3 Renato F.Villamor is sentenced to suffer the penalty of Reclusion Perpetua for Murder in Criminal Case No. 1312-36-14; and to suffer an indeterminate penalty of Eight (8) Years and One (1) Day ofPrision Mayor, as minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as maximum, for Frustrated Murder in Criminal Case No. 631-14-68-36. Accused-appellant is ORDERED to pay the heirs of the victim Jelord Velez the sum of P50,000.00 by way of moral damages, in addition to the civil indemnity of P50,000.00 and funeral expenses of P39,652.52 awarded by the trial court. The award of medical expenses to Jerry Velez in the amount of P47,955.00 is AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6344 March 21, 1911

THE UNITED STATES, plaintiff-appellee, vs. MANUEL RODRIGUEZ, ET AL., defendants-appellants. W.L. Wright for appellants. Acting Attorney Harvey for appellee. MORELAND, J.: This is an appeal by Manuel Rodriguez, Cipriano Galvez, Raymundo Revilla, Dorotea Rojas, Feliciano Pantanilla, Roman Villaister, Pedro Villanueva, Nicomedes Abella Sabino Raymundo, Geronimo Guijon, Martin Sauler, Eusebio Bustamante, Victoriano Calipusan and Valentin Multialto from a judgment o the Court of First Instance of the Moro Province, Hon Herbert D. Gale presiding, convicting them of the crime of murder and sentencing them each to death. From the proofs presented by the Government, it appears that the appellants, with nine other, being members of the second company of the Constabulary stationed at Davao, mutinied on the 6th day of June, 1909, attempting, during the course of such mutiny, to kill one of their superior officers, Lieutenant Goicuria; that immediately after such revolt the mutinees, having taken arms and ammunition from the depositary, left the vicinity of Davao and marched toward the mountains of Lipada; that on the 8th day of June, 1909, said mutineers returned to Davao for the purpose of attacking the town; that the inhabitants thereof, having received previous notice of the proposed attack, prepared themselves to meet it; that J. L. Burchfield, P. C. Libby, A. M. Templeton, and Roy Libby, armed with rifles, having been detailed by those commanding the defense of the town, on the afternoon of the day referred to, advanced to the cemetery within the limits of the town, forming an outpost for the purpose of awaiting the coming of the mutineers; that about 4.15 o'clock they sighted the mutineers; that immediately thereafter they heard a shot, followed by others, which came from near the cemetery, where the mutineers had halted and dismounted; that after a few shots had been exchanged Roy Libby was struck with a ball and killed; that the outpost retreated to the convent and took refuge therein; that the mutineers advanced against the town, attacking it at various points and especially the convent, where a portion of the residents of the town had gathered, including the women and children, or the purpose of defending themselves; that no other person except Roy Libby was killed, although several others were more or less severely wounded. What with the confession of some of the accused, the testimony of others, and the evidence presented by the witnesses for the prosecution, there remains so little a question of fact in this case that it is substantially unworthy of discussion. That the appellants with others revolted against their superior officers on the 6th of June; that they returned to Davao on the 8th and attacked it viciously and persistently, killing one of its defenders and wounding several others; and that they all took a direct and active part therein, is not only absolutely undoubted from the testimony of the prosecution but is substantially admitted by all of the defendants in the case. Some of the appellants sought to defend themselves upon the ground that they had been forced, by threats and intimidation, to take part in the mutiny and the attack upon Davao by other members o the mutineer band. The evidence in no way justifies this defense and it is utterly impossible under any construction of the evidence to sustain it. All of the appellants, however, agree in presenting the defense that they entered the town of Davao on the 8th of June, not for the purpose of attacking it for the purpose of surrendering to their superior officers and the governor of the district. Not only it is impossible from the testimony of the prosecution to arrive at such a conclusion o fact, but it is almost as nearly impossible to arrive at such a conclusion from the evidence presented by the appellants themselves. No defense upon the facts worthy of the name has been presented. As to whether or not there was present premeditacion conocida, qualifying the crime as murder, a simple reading of the proofs presented by the Government is sufficient to demonstrate that beyond question or doubt. It appears that all of the appellants, on or about the 8th day of June, at about 11 o'clock in the forenoon, went to the house of Cenon Rasay, some distance from Davao, in order to obtain information as to whether or not reinforcements had been landed at Davao. On being informed that, to the knowledge of the persons questioned, none had been landed, they asked the elder Rasay to permit them to leave at his house the three woman that accompanied them, as they were going to march on Davao and attack it. The appellant Rodriguez also requested that, in case he should be killed in the attack, he, Rasay, should treat one of the women, who was the wife of Rodriguez, as his servant. Having left the women in the house of Cenon, they took up the march to Davao. On arriving near the river Bagoo, they were overtaken by Ignacio Rasay, a kinsman of Cenon Rasay, and suspecting that he was going to Davao for the purpose of warning the town against the meditated attack, they halted him and told him that, if he should give any warning of their approach, they would cause

damage to his family. He having assured them that such was not his purpose, they permitted him to proceed. The appellants continued on their way and arriving at the cemetery near Davao heard a shot, which they claim came from those who had seen sent out to watch for their approach. On seeing this advance guard, the accused dismounted from their horses and began to fire forming in a skirmish line and advancing steadily. Overwhelmed by the number of the attacking party, the outpost retreated toward the village, pursued by the appellant. There followed an attack upon the town, more or less general, of the kind and character generally to be expected from such a body of men. The attacks was, in a large measure, unsuccessful and the mutineers withdrew when they saw the futility of further fighting. The learned trial court found premeditacion conocida as the element qualifying the crime as murder. The learned counsel for the appellants excepts to this finding and asserts that, inasmuch as the appellants did not know even of the existence of the deceased, Roy Libby, at the time of his death, much less that he was at the time in the village they attacked and one of the outpost of four, his death could not possibly have been premeditated. He argues that, in order that the killing be premeditated, the accused must have resolved to kill the premeditated person. We do not stop to discuss this question at length for the reason that it has already been determined by this court adversely to the learned counsel's contention. In the case of the United States vs. The Moro Manalinde, "the accused made up his mind to kill two undetermined persons, the first whom he should meet on the way, in compliance with the inducement of a third person." In its decision the court said: As to the other circumstance it is also unquestionable that the accused upon accepting the order and undertaking the journey in order to comply therewith, deliberately considered and carefully and thoughtfully meditated over the nature and the consequences of the acts which, under orders received from the said Datto, he was about to carry out, and to that end provided himself with a weapon, concealing it by wrapping it up, and started on a journey of a day and a night for the sole purpose of taking the life of two unfortunate persons whom he did not know, and with whom he had never had any trouble; nor did there exist any reason which, to a certain extent, might warrant his perverse deed. The fact that the arrangement between the instigator and the tool considered the killing of unknown persons, the first encountered, does not bar the consideration of the circumstance of premeditation. The nature of the circumstances which characterize the crime, the perversity of the culprit, and the material and moral injury are the same, and the fact that the victim was not predetermined does not affect nor alter the nature of the crime. The person having been deprived of his life by deeds executed with deliberate intent, the crime is considered a premeditated one, as the firm and persistent intention of the accused from the moment, before said death, when he received the order until the crime was committed upon the offer of MONEY , reward or promise, premeditation is sometimes present, the latter not being inherent in the former, and there existing no incompatibility between the two, premeditation can not necessarily be considered as included merely because an offer money, reward or promise was made, for the latter might have existed without the former, the one being independent of the other. In the present case there can be no doubt that after the crime was agreed upon by means of a promise of reward, the criminal by his subsequent conduct showed a persistently and firm intent in his plan to carry out the crime which he intentionally agreed to execute, it being immaterial whether Datto Mupuck did or did not conceive the crime, once Manalinde obeyed the inducement and voluntarily executed it. (U.S. vs The Moro Manalinde, 14 Phil. Rep., 77.) The trial court found that the crime charged was committed with the aggravating circumstances following: 8. When craft, fraud or disguise is EMPLOYED . 9. When advantage is taken of superior strength or means are EMPLOYED to weaken the defense. 10. When the act is committed with abuse of confidence. 11. When advantage is taken is taken by the culprit of his public position. 13. When the crime is committed on the occasion of a fire, shipwreck or other calamity or misfortune. 15. When it is committed at night, or in an uninhabited place, or by a gang. 16. When the crime is committed in contempt with insult to the public authorities. As to number 8: We do not believe that this circumstance was present. This circumstance is characterized by the intellectual or mental rather than the physical means to which the criminal resorts to carry out his design. This paragraph was intended to cover, for example, the case where a thief falsely represents that he is the lover of the servant of a house in order to gain entrance and rob the owner (astucia); or where (fraude) A simulates the handwriting of B, who is a friend of C, inviting the latter, without the knowledge of B, by means of a note written in such simulated hand, to meet B at a designated

place, in order to give A, who lies in wait at the place appointed, an opportunity to kill C; or where (disfraz) one uses a disguise to prevent being recognized; and cases of that class and nature. We are unable to find from the facts proved any element which warrants the conclusions of the learned trial court as to the presence of this circumstance in the commission of the crime of which the appellants were found guilty. They boldly marched from the mountains of Lipada to Davao, partly, at least, in the daytime, with the purpose of attacking the town, which purpose they communicated to at least three person, one of whom was permitted to precede them to the town. they advanced against the town at about 4.15 in the afternoon without any effort at concealment. They were in no way disguised, but, on the contrary, each wore the greater portion of the Constabulary uniform in which he was clad at the time of the mutiny. While it appears that some of them had cloths wrapped about their heads, it does not appear that this was done as a disguise, but was following rather the custom of the country in which they had been reared. We find in all the case nothing of craft, fraud or disguise. As to number 9: The circumstance depends upon the relative strength of the one attacking and the one attacked. It can hardly be said that advantage is taken of superior strength or means are EMPLOYED to weaken the defense when twenty-three men, in the daytime, openly and without stratagem of any kind, attack a town of the size of Davao. the results of the attack clearly show that the strength of the attacking party was not sufficient to accomplish the purpose in view. They demonstrate, under the circumstance, that no means were employed to weaken the defense, outside of such as are inherent in the situation when one body of men attacks another with deadly weapons. As to number 10: For the existence of this circumstance it is necessary that there exist a relation of trust or confidence between the person committing the crime and the one against whom it is committed and that the former make use of such relation to commit the crime. For example, where one commits a robbery in a house in which, as a friend of the owner, he is at the time a guest. No relation of this nature existed between the appellants and the citizens of Davao or the deceased. The evidence fails to disclose a single fact upon which the existence of this relation can be based. As to number 11: In order that this aggravating circumstance exist it is necessary that the person committing the crime be a public official and that he use the influence, prestige or ascendency which such office gives him as the means by which he realizes his purpose. The essence of the matter is presented in the inquiry, "Did the accused abuse his officein order to commit the crime?" We do not believe that the facts of this case warrant the finding of the trial court in this particular. (Supreme court of Spain, decisions of 4th March, 1872; 18th December, 1871.) As to number 13: The reason for the existence of this circumstance is found in the debased form of criminality met in one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune to despoil them. As is readily seen from the facts, no such condition as is described in this paragraph existed in Davao on the occasion of the attack. As to number 15: The second paragraph of this subdivision reads: The court shall take this circumstance into consideration according to the nature and characteristics of the crime. In this case, under all the circumstances, including those presented in the discussion relating to paragraph 9, the fact that there were more than three armed persons in the attacking party is not sufficient to call for the application of the provisions of this paragraph. As to number 16: The supreme court of Spain has held "that the circumstance of contempt of or insult to public authority, provided for in paragraph 16 of the Penal Code, can exist only when such authority is engaged in the exercise of its functions and he who is thus engaged in the exercise of said functions is not the person against whom the crime is committed in which that circumstance appears;" the court further saying that such aggravating circumstance was not present in the case before it "because D. Jose Torres, although he was municipal judge, was the object of the murder involved in that case."

In the case at bar, if the crime was committed with contempt of and insult to the public authorities, those authorities must have been the public authorities of Davao. But the persons exercising that authority were the very persons against whom, among others, the crime charged in this action was being committed. After diligent investigation and extended consideration, we have been unable to find that any aggravating circumstances attended the commission of this crime. There being present no aggravating circumstances and there existing no extenuating circumstances, the penalty imposed must be in its medium degree. The judgment of the court below is hereby modified and the appellants are each sentenced to cadena perpetua, to the accessories provided by law, to pay, jointly and severally, to the heirs of the deceased Roy Libby the sun of P1,000 and to pay the costs of the trial. So modified, the judgment is affirmed, with costs against the appellants. EN BANC [G.R. No. 140872. June 23, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLITO INGGO y TAMBULA, accused-appellant. DECISION QUISUMBING, J.: For automatic review is the decision[1] of the Regional Trial Court of Dipolog City, Branch 8, dated October 6, 1999, in Criminal Case No. 7593, convicting appellant Pablito T. Inggo of murder, sentencing him to suffer the penalty of death, and ordering him to pay the heirs of the victim the sum of P500,000 by way of consequential damages, P100,000 as moral damages, and to pay the costs. His conviction stemmed from the Information which accused him of murder, allegedly committed as follows: That, in the afternoon, on or about the 15th day of August, 1996, in the municipality of Katipunan, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said accused armed with hunting knife and with intent to kill by means of treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and stab one ROSEMARIE CONDE REINANTE, thereby inflicting upon her several wounds on the vital parts of her body which caused her death shortly thereafter; that as a result of the commission of the said crime the heirs of the herein victim suffered the following damages, viz: a) Indemnity for victim’s death …P 50,000.00 b) Loss of earning capacity… 50,000.00 _______________ P100,000.00 CONTRARY TO LAW (Viol. of Art. 248, Revised Penal Code), with the qualifying circumstances of treachery and evident premeditation.[2] Appellant pleaded not guilty when arraigned on January 17, 1997. Trial on the merits ensued thereafter. The version of the prosecution, as summed up from the records by the Office of the Solicitor General, is as follows: On August 15, 1996, about 8:00 o’clock in the morning, Rosemarie Reinante[3] requested her parents-in-law’s house helper, Leonisa Insic,[4] to go to her house in Poblacion Katipunan, Zamboanga del Norte, to do some household chores (p. 3, TSN, July 15, 1997). Leonisa Insic went to Rosemarie Reinante’s house as bidden (p. 8, TSN, July 8, 1997). About 1:00 o’clock in the afternoon of that day, Leonisa Insic returned to the house of Rolando Reinante, Sr. where she was living. She proceeded to the kitchen to take her lunch (p. 10, TSN, July 15, 1997). While she was eating, Leonisa Insic noticed somebody buy a bottle of beer from Rolando Reinante, Sr.’s store which was then being tended by Lando Tangga, another housekeeper of Rolando Reinante, Sr. The store was attached to the house of Rolando Reinante, Sr. Later, Leonisa Insic identified that somebody as the appellant (pp. 8-10, TSN, July 8, 1997; p. 15, TSN, July 15, 1997). Appellant gave the amount of P50.00 as his payment for the beer. Since there was not enough cash to change the fifty-peso bill, Lando Tangga asked Leonisa Insic to have the fifty-peso bill changed to smaller denominations. Leonisa Insic consequently went to another store to have the bill changed to smaller denominations (ibid.). Leonisa Insic returned to the store moments later after having the fifty-peso bill changed to smaller denominations. She gave the MONEY to Lando Tangga but the latter refused to accept it. Instead, he told Leonisa Insic to give the change to appellant. Leonisa Insic obliged. Leonisa Insic then approached appellant and tried to give him his change. Appellant, however, refused to accept his change and insisted that he should

get back the full amount he gave. Exchange of words, thereafter, ensued between Leonisa Insic and appellant (pp. 11-13, TSN, July 8, 1997). While appellant and Leonisa Insic were having an exchange of words, Rosemarie Reinante arrived. Consequently, Rosemarie Reinante asked for the MONEY and volunteered to give it to appellant. Appellant still refused to accept his change from Rosemarie Reinante which led to an argument (pp. 13-15, ibid.). While appellant and Rosemarie Reinante were thus arguing, appellant suddenly rushed to Rosemarie Reinante. When he was already near her, he loosened his belt and removed it from his waist. Rosemarie Reinante consequently ran. Appellant chased her and when he caught up with her, appellant stabbed her. Immediately, Leonisa Insic came to Rosemarie Reinante's rescue. She tried to separate Rosemarie Reinante and appellant by holding the latter's hands. Leonisa Insic was able to stop appellant which gave Rosemarie Reinante an opportunity to run towards the road. However, appellant was able to get away from Leonisa Insic and chased Rosemarie Reinante again. When appellant failed to catch up with Rosemarie Reinante, he ran towards the direction going to the cemetery of Katipunan (pp. 15-16, ibid.). Leonisa Insic saw Rosemarie Reinante fall down when she reached the road. She then ran towards Rosemarie Reinante's house to report the matter to Rolando Reinante, Jr. She did not find Rolando Reinante, Jr. in their house. Instead, she found some of the house helpers (names not on record) of Rosemarie Reinante. When they asked her what happened, she said that Rosemarie Reinante was stabbed. Leonisa Insic did not anymore return to the place where Rosemarie Reinante fell down because she was afraid (pp. 16-18, ibid.). Later, policemen arrived. Together with Leonisa Insic, they brought Rosemarie Reinante to the Dipolog City hospital. When they reached the hospital, Rosemarie Reinante was pronounced dead on arrival (pp. 1819, ibid.).[5] The defense’s version based on the lone testimony of the accused is, as summarized by the trial court, as follows: That he was an ice cream vendor before he was arrested and detained in jail on August 15, 1996. xxx That in the morning of August 15, 1996, from Katipunan, Z.N., where he resides, he went to Roxas, an adjoining town of Katipunan to sell ice cream. He was just walking while pushing his ice cream box along the way as he passed and sold ice cream to children and students in schools at Brgy. Tambo, Piao, and Nabilid, before reaching the poblacion of Roxas… about 12:00 o’clock noon. He took his lunch [in] the public market of Roxas, after which he drunk tuba and started back on his way to Katipunan at about 1:00 o’clock as he continued selling his wares on the same route he took in going to Roxas. It was already about 4:00 o’clock in the afternoon when he arrived [in] Katipunan. However, he was not able to reach his house because when he was at the crossing nearby the cemetery of Katipunan, he was waylaid by three armed men whose names were unknown to him except that he could only recognize their faces, and apprehended him. So he asked the persons who apprehended him what was his fault, but was told in reply “just [come] with us”. Without showing any resistance, he was brought to the police station of Katipunan. Then at the police station, the three persons who waylaid him took off his T-shirt, pants, and shoes. They also took off his brief[s]. Thereafter, he was detained in jail. While in detention, he was not informed of his right to counsel and neither was he accorded the assistance of a lawyer. He was not also informed of his right to remain silent and that anything he would say or any statement he made may be used against him. That by about 6:00 o’clock [of] that afternoon, he was brought by the policemen to the provincial hospital in Dipolog City. The purpose of bringing him to the hospital was just to examine his breathing, but the doctor who examined him observed that he was under the influence of liquor or ha[d] taken intoxicating drinks… he was brought back to the detention cell of Katipunan Police Station. He had already put on or put back his [clothes], which were returned to him by the policemen. That while in the detention cell, he was boxed and mauled by two police officers one of whom he recognized as a certain Rodel Castillon while he did not know the name of the other. The mauling xxx made him unconscious as he suffered injuries on the different parts of his body. That upon regaining consciousness, he noticed that he already sustained a [stab] wound on his stomach above his navel. He could not remember nor identify the person who stabbed him. In the morning of August 16, 1996, he was again brought to the same hospital xxx for [the] treatment of his [stab] wound. He was admitted [to] the hospital from August 16, 1996 to August 22, 1996… the accused denied the ownership of the following exhibits for the prosecution, to wit: Exh. "A" - a dirty white T-shirt with green combination allegedly wor[n] by the accused at the time of the incident;

Exh. "B" - a leather belt with a secret pocket that serves as a scabbard sewn in the inside face of the belt and the stainless knife that fits into the secret pocket, allegedly own[ed] by the accused and allegedly used by him in stabbing the victim Rosemarie Conde Reinante and in stabbing himself in an attempt to commit suicide; Exh. "C" - a yellow towel with blood stain allegedly carried by the accused at the time of the incident; Exh. "D" - a stainless hunting knife, measuring 4 1/2 inches by its blade, and 2 1/2 inches by its handle, mentioned in Exh. "B". The accused likewise denied knowing the victim Rosemarie Conde Reinante as well as her husband Rolando Reinante, Jr. He further denied knowing the two witnesses for the prosecution Leonisa Insic and Lando Tangga. That he did not see all the above-named persons on August 15, 1996, because on that day, he was at the nearby town of Roxas selling ice cream.[6] The trial court found the evidence for the prosecution credible and sufficient to convict appellant of murder beyond reasonable doubt. The decretal portion of its decision reads: WHEREFORE, and for all of the foregoing observations, and finding the guilt of the accused established by proof beyond reasonable doubt, herein accused Pablito Inggo y Tambula, is hereby convicted of the crime of Murder charged against him as principal by direct participation, and in the light of Article 248 of the Revised Penal Code, as amended by Rep. Act 7659, sentence[d] to suffer the supreme penalty of DEATH, to indemnify the heirs of the victim Rosemarie Conde Reinante, the sum of P500,000.00 by way of consequential damages, P100,000.00 as moral damages, and to pay the costs. SO ORDERED.[7] Hence, this automatic review, with appellant assigning the following errors: I THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING AND AGGRAVATING CIRCUMSTANCES OF TREACHERY, ‘WITH INSULT OR IN DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY ON ACCOUNT OF HER RANK, AGE AND SEX, AND INTOXICATION, ALTHOUGH THE SAME WERE NOT ESTABLISHED BEYOND REASONABLE DOUBT. II THE COURT A QUO GRAVELY ERRED IN SENTENCING THE ACCUSED-APPELLANT TO DEATH DESPITE THE FACT THAT NO QUALIFYING AGGRAVATING CIRCUMSTANCE WAS ATTENDANT. III NOTWITHSTANDING ALL THESE, THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT ALTHOUGH IT IS EVIDENT THAT HE WAS ONLY FRAMED-UP.[8] Principally, the issues for our resolution are (a) whether appellant’s guilt was proved beyond reasonable doubt, and (b) whether the penalty of death was properly imposed on him. To resolve these issues, we must also inquire into credibility of the witnesses and their testimonies. Appellant insists that he was merely “framed-up” by the police who could not find the real perpetrator. He points to the stab wound he sustained while in detention as proof of the devious and diabolical machinations by the police officers to implicate him in the said crime.[9] He contends that, granting without admitting that he was the assailant, there could be no treachery since the victim provoked appellant by arguing with him when she tried to force him to receive the P40.00 change. Appellant adds that since the assault was frontal, it could not be said to have been sudden and unexpected.[10] The appellee, as represented by the Office of the Solicitor General (OSG), counters that appellant’s claim that he was merely framed up should be rejected as it is uncorroborated and unsubstantiated by any evidence other than his self-serving claim. Contrary to appellant’s claim, two eyewitnesses positively identified appellant as the perpetrator of the crime.[11] The OSG asserts that treachery attended the commission of the crime as the attack was so sudden and so unexpected since the victim did not know that appellant had a knife with him, securely sewn and hidden inside his belt. Even if there was a prior argument between appellant and Rosemarie, she could not have anticipated that he would stab her. [12] Well-established is the principle that the findings of the trial court on the credibility of witnesses and their testimonies are accorded great weight and respect, even finality, on appeal unless the trial court has failed to appreciate certain facts and circumstances which, if taken into account, would materially affect the result of the case.[13] We have thoroughly reviewed the records of this case and we see no compelling reason to depart from this well-settled rule. The positive identification of appellant by the two eyewitnesses, Leonisa Insic and Lando Tangga, cannot be overcome by denial and allegation of a “frame-up”. Like alibi, which by its nature is inherently weak, the allegation of frame-up is easy to concoct, hence it has been viewed by this Court with disfavor.[14] Leonisa

Insic categorically pointed to appellant in open court as the same man who after drinking a bottle of beer bought from her master’s store, refused to receive his change and instead insisted on getting back his P50 bill. She also positively identified appellant as the same man who stabbed her Manang Rosemarie Reinante to death.[15] Although a mere house helper[16] who had studied up to Grade 2 only, and had stayed in the mountains until she was 18 years old, she testified in a candid and straightforward manner worthy of belief. The affidavit she executed was fully explained to her in the vernacular and she affirmed that she signed it because she understood it and knew it to be the truth.[17] Witness Lando Tangga corroborated Leonisa’s testimony. According to Tangga, he explained to appellant that the bottle of beer was worth P10.00, so that his change was P40.00 but appellant refused the change, claiming that it was insufficient. So Tangga then asked Leonisa Insic to be the one to explain to appellant and return his change, but to no avail. After sometime, Tangga saw his Manang Rosemarie arrive. Rosemarie got the MONEY from Leonisa and tried to give it to appellant. But appellant then rushed towards Rosemarie to stab her. Tangga testified that appellant delivered the fatal blow on her stomach. [18] No ill motive was imputed or shown against these two witnesses as to why they would falsely testify against appellant. The mere fact that Rolando Reinante, Jr., Rosemarie’s husband, was with them when they gave their statements at the police station did not taint their credibility. For the husband of the deceased victim surely wanted to see that the real perpetrator be punished for her death. Contrary to appellant’s contention, no grieving husband would coach his household helpers to impute a crime on someone whom they knew to be innocent. That would be contrary to human nature and experience. Absent any evidence showing a reason or motive for prosecution witnesses to perjure their testimonies, the logical conclusion is that no improper motive exists, and that their testimonies are worthy of full faith and credit.[19] Appellant claims to be merely passing through the area when the police apprehended him. However, he could not present any witness who can support his allegation. To the contrary, a witness for the prosecution, Edmundo Ballares,[20] testified that while he was in the cemetery, he saw police officer Edgar Calisas pursuing a man from the highway running towards the cemetery.[21] When the police caught up with the man, Ballares offered his assistance by holding the hands of the man, and thereafter bringing him towards the road.[22] The candid and straightforward testimony of Ballares stems from a forthright narration of what he actually witnessed. The grueling cross-examination by the defense counsel could not shake the foundation of his account. Witness Ballares positively pointed to appellant as the man chased by the police and subsequently caught in the premises of the cemetery. Appellant denies the charge against him, but his denial and his claim of “frame-up” are unsubstantiated by clear and convincing evidence. His denial is a negative and self-serving testimony which deserves no weight in law. It should not be given greater evidentiary value than the testimony of credible witnesses who testify on affirmative matters.[23] Appellant claims maltreatment committed on him by the Katipunan police. These claims are, however, also uncorroborated and unsubstantiated. He was unable to present any medical certificate concerning any injury he might have sustained on account of mauling or maltreatment. He did not file any criminal or administrative charge against the police officers to whom he attributed the maltreatment. Noteworthy, the prosecution presented a medical certificate as evidence that the stab wound of appellant was selfinflicted.[24] In the absence of any clear and convincing proof, to the contrary, the presumption stands that there was regularity in the performance of official duties[25] by the Katipunan police. Otherwise, it would become facile and convenient for any accused to shout maltreatment and render inutile any arrest lawfully made, to the detriment of peace and order in the community. While we find that sufficient evidence was presented to sustain the conviction of the appellant for stabbing to death Rosemarie Reinante, we are unable to agree that treachery was proved by the prosecution. The qualifying circumstance of treachery cannot be presumed and must be proved as sufficiently as the crime itself. Treachery or alevosia exists when the offender commits any of the crimes against persons EMPLOYING means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. [26] To prove treachery, the prosecution must show (a) that at the time of the attack, the victim was not in a position to defend himself and (b) that the accused consciously adopted the particular means, method, or form of attack EMPLOYED by him.[27] Here, the prosecution failed to show adequately these requisite elements. As testified to by the eyewitness, Leonisa Insic, appellant first chased Rosemarie before he was able to inflict the fatal stab against her. A portion of her testimony runs as follows: Q: Now, you said that the man rushed on your Manang Rosemarie, were they able to get near each other?

A: Yes, sir. Q: And what did you notice when they were already near to each other? A: Then, I noticed that the man loosen his belt and he took off that belt from his waist. Q: After that man loosen his belt, took off from his waist, what did that man do? A: Then, that man chased Manang Rosemarie at a swing and then later on stabbed Manang Rosemarie.[28] It is apparent that Rosemarie tried to run away but appellant caught up with her. Based on eyewitness testimony, we are not convinced that treachery attended the commission of the crime. The stabbing was not instantaneous. It was preceded by heated arguments. The victim must have been forewarned that appellant might try to harm her. Where an argument or a quarrel preceded a killing, treachery is non-existent since the victim could be said to have been forewarned and could anticipate aggression from assailant. [29] For treachery to be considered, not only must the victim be without means of defending herself, but also the means, method, or form EMPLOYED by the assailant must have been consciously adopted. The interval of time between the act of loosening his belt, getting the knife, chasing the victim and eventually stabbing her sufficiently shows that the use of the knife was not consciously thought of, but rather it came together with appellant’s outburst, arising from the heated arguments he had with Leonisa and then the victim. Thus, we cannot sustain the view that treachery attended the commission of the crime to qualify it as murder. We hold that appellant is liable only for homicide. Moreover, here the generic aggravating circumstance of disregard of sex could not be considered in the perpetuation of the offense. Disregard of sex which, for obvious reasons refers to the female gender, requires that the accused must have deliberately intended to insult or to show manifest disrespect for the sex of the offended party.[30] Here, we find no showing that the attack showed a manifest disrespect for the gender of the victim. Apparently, the victim arrived unexpectedly and took the cudgels for Leonisa, re-directing appellant’s ire toward the victim herself. Further, we find the alternative circumstance of intoxication inexistent. Intoxication to be aggravating must have been the source of bravado that propelled the accused to commit the crime. As we have previously held: Our penal laws do not look kindly on habitual drunkards, or if the accused already resolved to commit the crime, then got intoxicated so as to fortify that resolve with false courage dictated by liquor, his liability should be aggravated. Although there is no hard and fast rule on the amount of liquor that the accused imbibed on that occasion, but the test is that it must have sufficed to affect his mental faculties, to the extent of blurring his reason and depriving him of self-control.[31] Here, appellant’s degree of intoxication was not proved with certainty. He had allegedly been drinking tuba earlier that day, and he did buy a bottle of beer at the store of the victim’s in-laws. But these facts are not sufficient to establish that indeed appellant was intoxicated at the time he committed the crime, much less that he sought intoxication to fortify his resolve in committing it. Absent clear and convincing proof as to appellant’s state of intoxication, we are unable to agree that the alternative circumstance of intoxication was present to aggravate the offense. In any event, intoxication as well as disregard of sex were not alleged in the information, hence, these may not be considered to aggravate the crime for the imposition of a higher penalty, whether by degrees or periods. This is pursuant to the amendments made to the Revised Rules of Court, particularly to Sec. 8 of Rule 110 of the Revised Rules of Criminal Procedure[32] (which took effect on December 1, 2000). This section now mandates that the complaint or information should state not only the qualifying but also the aggravating circumstances in order that they may be appreciated. Since this procedural rule is favorable to the accused, it is proper to give it retroactive effect in this case. The award of damages also needs modification. The award of consequential damages in the amount of P500,000 is deleted for lack of factual basis. Instead, we award in favor of the victim’s heirs the amount of P50,000 as indemnity ex delicto.[33] The award of moral damages is also reduced from P100,000 to P50,000, consistent with our recent case law.[34] In addition, we award another P25,000 as temperate damages[35] considering that it has been shown that the victim’s family suffered some pecuniary loss but the amount thereof was not sufficiently established. WHEREFORE, the decision of the Regional Trial Court of Dipolog City, Branch 8, convicting appellant Pablito T. Inggo, of murder and sentencing him to death in Criminal Case No. 7593 is hereby MODIFIED. Appellant is found GUILTY beyond reasonable doubt of HOMICIDE as defined by Article 249 of the Revised Penal Code. For that offense, the penalty set therefor is reclusion temporal in its medium period,[36] there being no aggravating or mitigating circumstance, in accordance with Article 64 (1) of the Code. Applying the Indeterminate Sentence Law, appellant is hereby sentenced to suffer imprisonment for an indeterminate

period ranging from six (6) years and one (1) day of prision mayor in its minimum period as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its medium period as maximum. Appellant is also ORDERED to pay the heirs of the victimP50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as temperate damages. Costs de oficio. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 77284 July 19, 1990 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONIFACIO BALANSI alias "BAN-OS", defendant-appellant. The Solicitor General for plaintiff-appellee. Balgos & Perez for defendant-appellant. SARMIENTO, J.: The accused-appellant stands charged with the murder of Elpidio Dalsen on January 30, 1982 at Balinciagao, Pasil, Kalinga-Apayao. The Information alleged that he, armed with a Garand rifle, went inside the house of the victim, then allegedly fast asleep, where he shot him twice and killed him. Treachery was held to be present, and so were evident premeditation and EMPLOYMENT of means to weaken the defense of the victim. 1 The accused-appellant was then the Barangay Captain of Balinciagao Norte, Pasil, Kalinga-Apayao, and a member of the Civilian Home Defense Force (CHDF), while the victim was the Provincial Development Officer of Kalinga-Apayao. 2 The incident took place during a wedding celebration at Balinciagao Sur, Pasil, at or about 5:30 or 6:00 o'clock in the afternoon. The prosecution presented eight witnesses. The defense placed two on the stand. The trial court found the accused guilty as charged and sentenced him to die and to pay a total of P590,000.00 in actual (P540,000.00 for loss of the victim's earning capacity) and moral damages, plus costs. 3 It appears that the victim, a nephew of the appellant, was then sleeping at the house of his parents located opposite the house where the wedding celebration was being held. At or about 5:00 o'clock in the afternoon, Beatrice Canao, a Balinciagao resident, saw the accused, her uncle, standing at the door of the house of the victim's parents, also her relatives, armed with a gun. She inquired what he was doing there and he allegedly replied that he was waiting for the victim. She then entered the premises to locate an old newspaper with which to wrap food, a rice cake, when she saw the victim asleep. When she left, she saw the accused at the doorway. After disposing of her rice cake (which she gave to a certain Fr. Medina), she heard two gunshots, fired at an interval of two or three seconds, emanating apparently from the house, to which she shortly rushed. She allegedly met the accused at the steps leading to the second floor, brandishing his rifle. 4 She allegedly shouted "putok, putok!" 5 She then reported the matter to the police. Yulo Asbok a fellow CHDF member of the accused and likewise a Balinciagao resident, also heard two gunshots ring that afternoon. He said that he was three meters from the house where the gunshot sounds seemed to have originated. He allegedly proceeded there but was met by the accused at the steps. They allegedly grappled for possession of the rifle, which, he alleged, was still warm and reeked of gunpowder. He was able to wrest possession, after which, the accused allegedly ran away and fled to Pogon, also in Balinciagao. He later learned that the victim had been shot and that he died at Lubuagan Hospital. 6 Rosalina Dalsen, the victim's wife was enjoying the wedding celebration when she heard two gunshots. She made inquiries subsequently and was informed that the victim was her husband. She claimed that she saw the accused standing at the entrance of her parents- in-law's house prior thereto. 7 Dr. Nicolas Balais, a dentist by profession, was also at that celebration when he heard the shots. He then went to the victim's parent's house where they, the shots, rang out from. He did not allegedly have in mind that somebody had actually been fired upon but thought that may be there had been a burglary. He ascended the steps of the house where the accused earlier met Beatrice Candao and Yulo Asbok, and entered the second floor. He saw the victim lying in his room, whom he initially believed to be merely sleeping, but who was, in fact, dead. 8

The prosecution also presented Simeon Valera, principal of Pasil Central School, and Artemio Dalsen the victim's brother, who sought to establish a motive for the killing of the victim, a motive they imputed to the accused. Valera testified that revenge was supposedly a tradition among Kalingas (of which both the accused and victim were members), which, however, could be prevented by the dusa, meaning, apparently, intervention and mediation by community elders. 9 Meanwhile, Dalsen claimed that the accused had nursed along- standing grudge against the victim, whom he accused of delaying on alleged award for the construction of a bridge in Balinciagao in 1979. 10 After the prosecution rested, the defense presented its evidence. It presented two witnesses, the accused himself and Masadao Jose, who lived in Samangana, Balinciagao. The accused claimed that he was also at the wedding celebration on that fateful afternoon when he too heard two gunshots break in the air. As a member of the CHDF, he allegedly took it upon himself to investigate the matter. He said that he went to the direction where the shots came from and was on his way to the entrance of the house when Yulo Asbok allegedly prevented him from doing so, who grabbed the firearm he was carrying. He did not allegedly know at that time that the victim had been shot and allegedly learned of it only on the following day. He admitted having ran away but allegedly because he had been implicated. Four days later, he voluntarily turned himself in to the police. Masadao Jose corroborated his statement. 11 In returning a verdict of guilty, the trial judge observed: "While there is no eye witness who testified to having seen the accused Bonifacio Balansi shoot the victim, yet all the circumstances pointed to him as the perpetrator of the crime." 12 The circumstantial evidence referred to came primarily from the lips of Yulo Asbok and Beatrice Candao as well as the accused himself, who admitted having been at the scene of the crime. Obviously, the judge did not lend credence to the accused's defense. The accused-appellant now contends that the judge erred, first, in appreciating circumstantial evidence, second, in appreciating treachery, and third, in rejecting his defense of alibi. We affirm, with modification, the decision appealed from. While there was no eyewitness account, the web of circumstantial evidence points to no other conclusion than that the accused was guilty of shooting the victim, Elpidio Dalsen to death in the afternoon of January 30, 1982. These circumstances are as follows: (1) He was seen standing by the entrance of the house where the victim had sojourned, armed with a long rifle, minutes before gunshots were heard. Three witnesses saw him: Beatrice Canao, Yulo Asbok, and Rosalina Dalsen. (2) Moments later, two shots rang out, one after the other. Four witnesses heard them: Canao, Asbok, Dalsen and Nicolas Balais. (3) Thereafter, Canao saw him descending from the steps of the house. Asbok also saw him there, whom he wrestled for the possession of the rifle. (4) He fled and hid for four days. Under Rule 133, Section 5, of the Rules of Court: SEC. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if. (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 13 As we glean from the evidence, there is no one, other than the accused-appellant, who could have perpetrated the offense. The accused-appellant, as we said, disagrees. He insists that he was there, precisely, to investigate the matter, and armed himself for the purpose, but was stopped by Yulo Asbok. His protests notwithstanding, we too must reject this defense. Two reasons persuade us. First, he has not ascribed any motive to Yulo Asbok as to why he, Asbok should testify falsely against him. Second, he admits having fled immediately thereafter. If he were truly innocent, he would not have done so. We have held time and again that flight is a silent admission of guilt. 14 As aptly put "The righteous is brave as a lion, but the wicked man fleeth." 15 If he were moreover truly innocent, and that it was Yulo Asbok who had something to do with the killing and who had meanwhile tried to stop him from conducting an inquiry, it would have been he, the accused, to be the first to make a report to the authorities so that Asbok could be brought to the bar of justice. If the latter did try to prevent him from performing his duties, as he claimed, 16 he should have gone to lengths to implicate Asbok because that too was his duty. We also reject his claims of inconsistency on the part of the prosecution's witnesses, notably Asbok who stated that he was the first to be in the victim's house after the shooting (aside from the accused), in the face of Canao's testimony that she also had been there. The Court is not convinced that an inconsistency exists. For obviously, Asbok had been mistaken. Canao had earlier been there.

The Court sees no need to make an inquiry on the admissibility of testimonies attributing motive to the accused-appellant. We are sufficiently persuaded that even without any successful showing of a motive, the circumstantial evidence on hand nevertheless suffices to warrant a conviction beyond reasonable doubt. The Court, however, is not convinced that the accused-appellant had committed murder arising from treachery, evident premeditation, and means EMPLOYED to weaken the defense of the victim. As to treachery, jurisprudence is ample that the manner of attack must be shown. While there are testimonies to the effect that the victim was "fast asleep", we can not safely presume that he was still in that condition when the accused sprung his attack. And since nobody saw the actual shooting, we can not justifiably say that the victim was still actually still asleep at that time. 17 Neither is evident premeditation a qualifying circumstance. In appreciating evident premeditation, it is necessary to show: (1) the time when the offender determined to commit the offense; (2) an act manifestly indicating that the culprit had clung to his determination; and (3) a sufficient interval of time between the determination and execution. 18 The prior determination of the accused to do away with the victim has not been sufficiently demonstrated by the prosecution. That the accused also EMPLOYED means to weaken the victim's defenses is likewise missing in this case. As we said, there was no actual eyewitness to the killing and hence, we can not say for sure, based on the evidence before us, that the appellant did employ means to weaken the defense of the victim. We, however, affirm the trial court insofar as it appreciated dwelling. Although the victim was not shot in his house (his parents owned it) it has been held that the dwelling place need not be owned by the victim. 19 In that case, it was held: La circunstancia agravante de morada, aunque no fuese la casa propia de los occisos, debe estimarse porque — segun el Tribunal Supremo de España — " no solo por el respeto que el domicilio ajeno merece, como especie de complements de la personalidad, y por el que es debido al hogar de la familia, sino por el no menor de que es digna la residencia privada de cualquier ciudadano, y por el mayor grado de malicia que revela quien busca a su victima alli en donde se encuentra con la confianza y abandono propios del lugar elegido para el descanso y las intimidades de la vida: razon por la cual habla el Codigo penal en el art. 10, no de domicillo en sentido legal, sino de morada en su acepcion real, que no es otra que la del paraje en donde una persona hace estancia de asiento. ... a titulo de nuesped, o por otro cualquiera.i•t•c-aüsl (S. de 25 de Junio de 1886, 2 Viada., 5 ed., 329.) 20 In the Basa case, the victims were killed while sleeping as guests in the house of another. Dwelling there was held to be aggravating. According to earlier cases, including U.S. v. Bredejo, 21 our ruling was that the dwelling place must be owned by the offended party. In another decision, People v. Celespara, 22 dwelling was not appreciated as an aggravating circumstance in the absence of proof that the victim owned the dwelling place where he was killed. In People v. Guhiting, 23 morada was not likewise considered for the same reasons. However, more recent cases have since followed the lead of Basa, notably People v. Galapia 24 and People v. Sto. Tomas. 25 "Dwelling" is considered an aggravating circumstance because primarily of the sanctity of privacy the law accords to human abode. According to one commentator, one's dwelling place is a "sanctuary worthy of respect" 26 and that one who slanders another in the latter's house is more guilty than if he who offends him elsewhere. However, one does not lose his right of privacy where he is offended in the house of another because as his invited guest, 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. It is with more reason in this case. The late Elpidio Dalsen died in the house of his very parents. who raised him until he could be on his own. Under the circumstances, we affirm the lower court, but only insofar as it held the accused-appellant responsible for taking the life of Elpidio Dalsen. We hold him liable for simple homicide aggravated by dwelling. Under the Revised Penal Code, he must suffer reclusion temporal in its maximum period, there being no mitigating circumstances and one aggravating circumstance. 27 WHEREFORE, the appeal is DISMISSED. The accused-appellant is sentenced to an indeterminate penalty of eight (8) years and one (1) day of prision mayor to seventeen (17) years, four (4) months, and one (1) day ofreclusion temporal. The grant of damages is affirmed. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-34497 January 30, 1975 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN ONG y KHO and BIENVENIDO QUINTOS Y SUMALJAG, defendants-appellants. Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Kapunan and Solicitor Celso P. Ylagan for Plaintiff-appellee Dominador Laberinto and Associates for appellant Benjamin Ong. Jose R. Quintos and Luciano V. Bonicillo for appellant Bienvenido Quintos. FERNANDEZ, J.: This is an automatic appeal from a decision of the Circuit Criminal Court, Seventh Judicial District in Criminal Case No. CCC-VII-922 Rizal, dated October 11, 1971, the dispositive part of which reads as follows: WHEREFORE, finding the accused Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag, GUILTY, beyond reasonable doubt of the crime of Kidnapping with Murder as defined under Article 248 of the Revised Penal Code, in relation to Article 267 thereof, as charged in the Information, the Court hereby sentences each one of them to suffer the penalty of DEATH; to indemnify the heirs of the deceased Henry Chua, the amount of P12,000.00; to pay moral damages in the amount of P50,000.00, and another P50,000.00 as exemplary damages jointly and severally; and to pay their proportionate share of the costs. 1 The information filed by the Provincial Fiscal of Rizal, B. Jose Castillo against (1) Benjamin Ong y Kho, (2) Bienvenido Quintos y Sumaljag (3) Fernando Tan, alias "Oscar Tan," and (4) Baldomero Ambrosio alias "Val", the latter two being then at large, reads: . That on or about April 23 to April 24, 1971, inclusive, in the municipality of Parañaque, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then private individuals, conspiring and confederating together and mutually helping one another did then and there wilfully, unlawfully and with treachery and known premeditation and for the purpose of killing one Henry Chua and thereafter extorting MONEY from his family through the use of a ransom note, kidnap(ped) and carry(ied) away said Henry Chua, initially by means of a friendly gesture and later through the use of force, in an automobile, and later after having taken him to an uninhabited place in Caloocan City, with the use of force detained him (Henry Chua) and kill(ed) him in the following manner to wit: The accused after gagging and tying up Henry Chua and repeatedly threatening him with death, assured him that if he would write and sign a ransom note for the payment by his family of the sum of $50,000.00 (US), he would not be killed and would be released upon receipt of the ransom MONEY , but after said Henry Chua agreed and did execute such a ransom note, he was again gagged and tied up by the accused, and thereafter stabbed in the abdominal region several times with an icepick, inflicting upon him (Henry Chua) mortal wounds on his vital organs, which directly caused his death. All contrary to law with the following generic aggravating circumstances: (a) Evident premeditation; (b) Grave abuse of confidence; (c) Nighttime; (d) Use of a motor vehicle; (e) Use of superior strength; and (f) Cruelty. 2 Personal Circumstances of the Two Appellants At the time of the trial before the lower court in September of 1971, the accused Benjamin Ong was 31 years old, EMPLOYED with the Acme Shoes, Rubber and Plastic Corporation, a firm owned by his brother-in-law, Chua Pak, for the past 11 years, the last 6 of which was as an assistant manager. He was already receiving a monthly salary of P1,800.00 excluding yearly bonuses of P30,000.00 and other representation allowances or a total annual income of from P60,000.00 to P70,000.00. He had his elementary schooling at the Assumption

Academy in San Fernando, Pampanga; his first and second years of high school at Chiang Kai-shek High School in Manila; and his third and fourth years at the Mapua Institute of Technology. He was a third year Commerce student, majoring in accounting at the University of the East, when he quit schooling in 1959. He married Athena Caw Siu Tee Ong on November 25, 1962 at the St. Jude Catholic Church, by whom he already had four children: Connie Louis, 7 years old; Dennis, 5 years old; Edgar, 3 years old; and Fanny, 1 year old. 3 On the other hand, accused Bienvenido Quintos was 39 years old, single, an unlicensed surveyor and computer for two years already at the Robes Francisco Realty Corporation with a relatively "small" income. He was a third year engineering student when he stopped studying. In 1954 he was charged of Resisting Arrest and Assault Upon an Agent in Authority but this case was settled amicably. 4 Brief Synopsis of the Testimony of the Prosecutions Witnesses The prosecution presented several witnesses to prove its charge of kidnapping with murder. First to testify was Patrolman Marciano Roque of the Crimes against Property Division of the Detective Bureau of the Caloocan City Police Department who declared that: He knew Benjamin Ong for about 6 years already because he usually investigated theft and robbery cases at the Acme Firm and at times received some MONEY from Ong. In a series of 6 meetings with Benjamin Ong starting from the first week of April, 1971, Benjamin Ong confided to him his plan to get a man who cheated him in gambling by as much as P150,000; that he would ask for MONEY from the latter's parents; and that after which, he would kill the victim. Benjamin Ong's determination was shown when his godson was even introduced to him as one who would help him. Benjamin Ong brought him to Barrio Makatipo in Novaliches, Caloocan City and described it as a suitable place where to bring the victim. Ong also told him that he had acquired a bag, flashlight and a piece of cloth. He was prevailed upon by Benjamin Ong to participate in his plan assuring that he could resign from the government service once the money is collected. Patrolman Roque revealed this plan to his Division Chief, Capt. Dueñas, the Officer-in-Charge, Lt. Manapat and the Chief of Police, Celestino Rosea. However, the three did not believe that Benjamin Ong had the guts to do it. After the incident, Patrolman Roque said that he and Police Chief Rosca met with Atty. Nestor Gonzales of the National Bureau of Investigation to supply the early leads in this case although they did not find a trace of the crime when they went to Barrio Makatipo. 5 Miss Ligaya Tamayo testified next. She declared that: She worked as an entertainer at the Wigwam Nightclub in Parañaque, Rizal and knew Henry Chua very well. At around 1:30 o'clock in the early morning of April 24, 1971, she and Miss Mickie Yaro had Henry Chua and Benjamin Ong for their guests. The two talked in Chinese and had some drinks. Benjamin Ong showed her a check in favor of Henry Chua which he claimed that the latter won in a gambling game. She, however, did not actually see him give it. At around 1:30 that same morning, she accompanied the two to the door and saw them leave the place and ride in a Mustang car. 6 Sy Yap, older brother of Henry Chua, was the third witness. He testified that: He was with Atty. Nestor Gonzales and other agents of the NBI on September 2, 1971 in Barrio Makatipo after Benjamin Ong PINPOINTED the place of burial, and there he saw the decomposing body of the victim under the ground, immersed in water. He saw and identified the following personal effects found with the body: a white gold watch which stopped at the hour of 6:22 and date of "24"; Driver's License No. 32219 with the name of Sy Sing Biok alias Henry Chua; Diner's card — Diner Group 0004149-1; pass issued by the Bureau of Customs for Henry Chua dated January 19, 1971; receipt for payment of the license of the car; residence certificate; lighter; wallet; currencies in different denominations; shirt jacket; pair of shoes; socks; brief; undershirt; Tshirt; and trousers with a mark "Especially tailored for Henry Chua, 2-2-71, No. 95812." 7 Dr. Ricardo G. Ibarrola, Jr., Medico-Legal Officer of the NBI appeared as the fourth witness. He testified on his post mortem examination made on September 2, 1971 at La Funeraria Paz, of the deceased Henry Chua, 31 years old, single, and on his necropsy report, Exhibit "M". He said that the deceased sustained two wounds on the liver and large intestine caused by a long pointed cylindrical instrument similar to an icepick. He added that most likely, the assailant was in front of and on a higher level than the victim. Although this did not appear in his report, he theorized that the two wounds were not the immediate cause of death since there was only a slight degree of hemorrhage in the vicinity of the punctured wounds. He said that the liver and large intestine had no sufficient time to bleed because something else must have happened which was the asphyxiation or suffocation of the victim due to his burial. 8 He stated, however, in his necropsy report, Exhibit "M", that the cause of death of the deceased was "punctured wounds of the abdomen." Miss Clarita Teh, travel agent of Skyways Travel Service located At Ongpin St., Sta. Cruz, Manila, declared that: At about 4:00 p.m. of April 22, 1971, Benjamin Ong called her up by phone to ask for a reservation ticket for Hongkong and Taipei. On the morning of April 23, 1971, Benjamin Ong went to her office but forgot to bring

along his papers including his Alien Certificate of Registration. In the afternoon of April 24, 1971, Benjamin Ong went back to the office, this time with the pertinent papers plus P4,000 cash. She said that he changed his destination from that of Hongkong and Taipei to that of Canada. However, he needed P7,000 for this purpose. On April 29, 1971, Mrs. Ong got back the P4,000 because the latter said that her husband did not have enough MONEY . 9 Patrolman Gener S. Estrella, municipal policeman of Baliuag, Bulacan, followed next on the witness stand. He stated that on April 25, 1971, he was on his tour of duty from 4:00 o'clock to 8:00 o'clock a.m. at the poblacion when he received information that an unidentified car was parked in a gasoline station. He therefore sought the company of Patrolman Ceferino Castro and they went to Barrio Tibag where they saw the locked Mustang car parked in a gasoline station with plate number 16-02B, L-P.C., series '71. They reported the matter to their head, Lt. Herminio Angeles. 10 Severo "Boy" Roslin, mechanic, gave the next testimony. He knew Fernando Tan since 1965. On April 29, 1971, early morning, he saw Fernando Tan and another, introduced to him as Alfredo Hernandez, who happened to be Benjamin Ong. Fernando Tan requested him to bring them to the airport and obtain airplane seats for the Visayas. He accompanied them but they failed in this endeavor so that they proceeded to the pier. Likewise, they were frustrated in getting a passage to the South. They ended up taking a train ride to Lucena City. Roslin said that he went back to Manila that same day. On May 1, 1971, he and Fernando Tan went to the house of Bienvenido Quintos near Abad Santos St. in Manila. They did not see him so that they had to come back at noon. They then took him with them and, after passing by a laundry shop, they went to Singalong where they picked up Benjamin Ong at around 7:00 p.m. Roslin claimed that they were using his Chevy car. They went to Barrio Balugo, Oas, Albay and stayed at his parent's house. He, Quintos, and Tan stayed there for one half month where they took themselves into swimming at the river. They left Benjamin Ong there. 11 Enrique Lacanilao, an NBI agent, testified that: Exhibits "N" and "O" are the voluntary written statements signed respectively by Benjamin Ong on September 1, 1971 and by Bienvenido Quintos on September 3, 1971. He said that Benjamin Ong PINPOINTED to them the place of burial at Barrio Makatipo, and Sy Yap was with them during the examination. They found the mouth of the victim gagged and his hands tied. It was in a state of decomposition. The victim's body was facing downward with the buttocks protruding up. The hands were tied just above the chest while the feet were far apart. The buttocks were one foot from the surface while the face was one and a half feet below facing down. There were no houses in the area which he believed was the Araneta subdivision. He directed the reenactment of the crime. It appeared in their reenactment that Fernando Tan and Bienvenido Quintos were the ones who grabbed Henry Chua from his Mustang car when Benjamin Ong was urinating; that the victim's mouth was gagged while his hands were tied at the back; that during the making of the ransom note. Tan was holding the gun while Quintos was focusing the flashlight; that afterwards, Henry Chua's hands were tied again, this time in front; that he was stabbed after he was made to lie down facing up; that Baldomero Ambrosio and Bienvenido Quintos pulled the victim to the hole that Baldomero Ambrosio shovelled while Bienvenido Quintos held the flashlight; that at the time the ransom note was being prepared Benjamin Ong was near the car, about 50 meters from the hole, so that his person did not appear in the picture of the reenactment of this portion. Benjamin Ong was taken by the NBI into custody from the 2nd PC Zone on September 1, 1971 at around 6:30 in the evening whereupon at 10:00 p.m. of that same night, his written testimony was taken down up to past 12:00 midnight. He had a small bandage around his wrists because of an attempted suicide on his part. Bienvenido Quintos, on the other hand, he said, was arrested on September 3, 1971 and his extrajudicial statement was taken on the same day at around 7:00 or 8:00 p.m. 12 Diego H. Gutierrez, also an NBI agent, testified last for the prosecution. He identified Exhibits "Q" and "R" as the voluntary supplementary extrajudicial statements respectively of Bienvenido Quintos and Benjamin Ong. Gutierrez' testimony focused on Bienvenido Quintos' admission that the hole was dug and covered with fresh twigs after the group's second meeting at the Barrio Fiesta Restaurant. 13 Brief Synopsis of the Testimony of the Witnesses for the Defense The defense started the presentation of their evidence with the testimony of Dr. Mariano P. Lara, retired Chief Medico-Legal Officer of the Manila Police Department. His testimony centered on the matter of asphyxiation. He said that asphyxiation as the possible cause of death was nowhere reflected on the necropsy report of Dr. Ibarrola of the NBI; and that the death of the victim could have been due to shock as a result of the wounds inflicted on him. 14

Rene Aguas, BIR examiner and first cousin of Bienvenido Quintos, then testified. He said that he went to the NBI on September 8, 1971 in order to follow up the clearance papers of his deceased father. By coincidence, he discovered that Quintos was detained there, so, he tried to get in touch with him. He gathered that Quintos was "okay" although later on the latter revealed that he was hurt also. 15 Artemio R. Quintos, an engineer and father of accused Bienvenido Quintos, followed next. He said that he visited his son on September 3, 1971 along with Atty. Bonicilla at around 7:00 p.m. at the NBI. The guard refused to tell him where his son was so that the following day, September 4, he went back to the NBI in the morning as well as in the evening. Still he did not find his son. On September 5, he delivered clothes for the use of his son to the jailer, Benjamin Laforteza and was issued a receipt therefor. On September 6, he brought a letter addressed to the Director of the NBI requesting him that he be allowed to see his son. It was only on September 7, at 4:00 p.m. he claimed, that he met his son. He said that Bienvenido Quintos showed to him his stomach with some bluish discoloration at the navel. On that day, he also received his son's dirty clothes and found bloodstains on it. 16 Bienvenido Quintos then took the witness stand. He revealed that he came to know Fernando Tan when they were still in Dagupan City long time ago. He said that he was invited on April 23, 1971 by Fernando Tan and that they met at around 7:00 p.m. of that day. They proceeded to the Barrio Fiesta Restaurant in Caloocan City where he was introduced to Benjamin Ong and Baldomero Ambrosio for the first time. At 9:00 p.m., they went to Brown Derby Supper Club in Quezon City after which they proceeded to Amihan Nightclub at around 10:30 p.m. at Roxas Boulevard. He, Fernando Tan, and Baldomero Ambrosio were left in the car. Later, Benjamin Ong went out of the Amihan Nightclub and took Fernando Tan with him. Fernando Tan returned and after a while he was invited to the nearby Wigwam Nightclub. They hurriedly left the place and Fernando Tan took the front seat of the Biscayne car while he took the back seat and followed a certain car. When that car stopped, he saw Benjamin Ong vomitting. Fernando Tan and Baldomero Ambrosio went down and Fernando Tan pulled out his gun. The victim was dragged and forced into the rear part of their car. The victim's hands and feet were tied by Baldomero Ambrosio while the mouth was gagged by Fernando Tan with a flannel cloth. Bienvenido Quintos made clear in his testimony that the victim was lying on his back inside the car so that his face was up and his hands were on his breast. Fernando Tan then threatened him with his gun should he not cooperate with them. At Barrio Makatipo, the victim laid down on the ground and Benjamin Ong got the shovel and flashlight and gave them to Fernando Tan. The victim was made to walk a little distance and then lie down again face up. Benjamin Ong gave to Fernando Tan an icepick who then gave it to Baldomero Ambrosio and in turn gave it to him. He refused to stab the victim so that he returned it to Fernando Tan who made the actual stabbing on the victim's chest twice. According to him, there was already a hole in that place. He also claimed that Exhibit "O" was not a voluntary statement of his and that he was maltreated by more or less 5 men. He said that he went to Oas, Albay on May 1, 1971 but that he was never contacted by the group between April 24 and 30. At a certain point during the proceedings, the court suspended his testimony for about 15 minutes after he complained of an aching head. 17 Benjamin Ong testified last for the defense. He related that Henry Chua was a friend and that they were slightly related to each other. He felt that he was cheated because he was the only one who continuously lost in their mahjong sessions. Henry Chua's group, including Ko King Pin, Go Bon Kin and Marcelo Tanlimco went to his office and humiliated him there. On April 21, 1971, Henry Chua called him up by phone and invited him to the Amihan Nightclub where he could settle the gambling debt. He admitted responsibility for Henry Chua's death but emphasized that his purpose was merely to kill him. He added that nothing was taken from the body of the victim. He asked the assistance of Fernando Tan and Baldomero Ambrosio who merely drove the car. He denied the testimony of Patrolman Marciano Roque regarding his revelation of his plan. He believed that Henry Chua knew that he had a grudge against him during that fatal day. He waited for them to dig and cover the hole which took about one hour and a half after the stabbing. He attempted suicide by slashing his wrist 7 or 8 times while he was still in the custody of the P.C. at Camp Vicente Limin Laguna. He was also brought by the NBI to the Salem Motel where he was investigated from 8:30 in the evening up to 5:30 in the morning of the next day. Exhibit "N", his extrajudicial statement, was taken while he was groggy and very weak. He likewise PINPOINTED the grave. At a certain juncture during Benjamin Ong's testimony, his counsel sought the court's permission to exclude the public from the hearing because Ong's wife would testify on something that would constitute a "great shame" to their family. Benjamin Ong, however, refused to go ahead with said testimony. Benjamin Ong further claimed that he decided to kill Henry Chua on April 23, 1971. He was hurt by the threatening words on the part of the victim which humiliated him and, as such, he was forced to resign from his job. He went to the Skyways Travel Service only after the incident. He, however, changed his destination

and wanted to go instead to Canada and Europe. The reason why he was not able to pursue his departure was because Sy Yap called him up and asked him about his brother's whereabouts so that he seriously felt that the authorities were already after him. He left Manila on April 29, 1971 and went to Legaspi City with Fernando Tan but found no acquaintance there so that they went back to Manila. It was Fernando Tan who contacted Boy Roslin and Bienvenido Quintos after which they went to Oas, Albay and stayed there for about two to three days. He hid himself on top of the mountain with an old man. Furthermore, he said that Henry Chua was aware that he resented him. Benjamin Ong likewise denied having called Fernando Tan at anytime, to come in with him to the nightclub. 18 Non-Conflicting Facts Non-conflicting facts, as shown in the testimonies of the accused and witnesses in open court, and reiterated in the respective briefs of the parties, are as follows: For more or less one year and a half prior to the dreadful incident, the accused Benjamin Ong used to play mahjong with the deceased Henry Chua and the latter's companions, Ko King Pin, Go Bon Kim (sic) and Marcelo Tanlimco. In those sessions he lost substantially that at one time, it amounted to as much as P150,000.00. He suspected that he lost in unfair games and was completely cheated by Henry Chua and the latter's companions, who made things worse by pressing him to pay his gambling debt with a threat of bodily harm upon his person and that of his family. The deceased and his companions embarrassed Benjamin Ong, incident after incident, especially when they went time and again to Benjamin Ong's office at the Acme Shoes, Rubber and Plastic Corporation to confront him. The extent of his embarrassment was made manifest by the fact that he had to resign from his job. On April 21, 1971, Henry Chua repeated his demands for early settlement of his gambling debt and, as such, invited Benjamin Ong to see him on April 23, 1971 at the Amihan Nightclub and bring with him the money owed (P50,000.00). That same day that Henry Chua phoned Benjamin Ong, the latter contacted and sought the assistance of Fernando Tan, a technical supervisor also of the Acme Firm. Benjamin Ong told Fernando Tan about his grudge and plans against Henry Chua in order to avenge the embarrassment and humiliation he suffered before the eyes of his subordinates. Fernando Tan, who incidentally, owed Benjamin Ong his job 19, was very accommodating and he shared Ong's feelings against Henry Chua. And, according to Benjamin Ong, Tan said "Why not just kill him." 20 Tan immediately contacted Baldomero Ambrosia, Benjamin Ong's godson in marriage and a former Acme employee, and likewise called upon his boyhood friend Bienvenido Quintos at the latter's office at the Robes Francisco Realty Corporation. On April 23, 1971, the four met at the Barrio Fiesta Restaurant in Caloocan City and finalized their plan to liquidate Henry Chua. The group, riding in Benjamin Ong's Biscayne car, then went to the Amihan Nightclub and arrived there at past nine o'clock in the evening. The two, Benjamin Ong and Henry Chuamet there and had a couple of drinks. Benjamin Ong asked for patience and leniency with regard to his indebtedness and ample time for its settlement. From the Amihan the two went to the nearby Wigwam Nightclub where they tabled two hostesses Ligaya Tamayo and Mickie Yaro and had some more drinks. At around 1:30 a.m. of the following day, April 24, 1971, the duo left the place and rode in Henry's Mustang car. Fernando Tan, Bienvenido Quintos and Baldomero Ambrosio riding in Ong's Biscayne car, followed the couple down Roxas Boulevard, then to Quiapo and Quezon Boulevard Extension in Quezon City where, after passing the Sto. Domingo Church, they made a turn towards a dirt road leading to Del Monte Avenue. When they reached a dark and secluded place, Benjamin Ong urged Chua to stop the car in order to urinate, to which the latter obliged. It was at this time that the Biscayne car arrived and stopped in front of the Mustang car whereupon Fernando Tan and Baldomero Ambrosio alighted with a flashlight and pretended to be policemen. Fernando Tan poked his gun at Henry Chua and pulled him down from his Mustang car with Baldomero Ambrosio giving him help. They then guided and forced him inside the rear part of the Biscayne. He was made to lie, face up. His hands were tied and his mouth gagged with a flannel cloth. Fernando Tan and Bienvenido Quintos then rested their feet on him. Baldomero Ambrosio drove the Biscayne while Benjamin Ong drove the Mustang and followed them from behind. The group took Del Monte Avenue, Roosevelt Avenue, and then E. de los Santos Avenue, right to the North Diversion Road, and right again to Novaliches until they reached a deserted place that looked like an idle subdivision in Barrio Makatipo, Novaliches, Caloocan City. It was here that Henry Chua was stabbed twice with an icepick, allegedly by Fernando Tan, and buried there with all his belongings with him consisting of a Piaget watch, lighter, wallet containing P50 bills, driver's license, diner's card, etc.

After this, the group proceeded to Barrio Tibag, Baliuag, Bulacan with Benjamin Ong and Fernando Tan on the Mustang. There they left it locked near a gasoline station. The foursome then regrouped in the Biscayne and proceeded back to Caloocan City where they separated at about 7:00 o'clock in the morning. On August 29, 1971, somewhere in Barrio Balugo, Oas, Albay, Benjamin Ong was arrested by operatives of the 2nd PC Zone and later turned over to the NBI. On the other hand, Bienvenido Quintos was apprehended on September 2, 1971 in his residence at Tayabas St., in Sta. Cruz, Manila by members of the MPD and later turned over to the NBI also. Important Points of Conflict The prosecution adds more to what the defense claims and conflicts appear in various instances. One such instance was the testimony of the first prosecution witness, Patrolman Marciano Roque of Caloocan City, to the effect that one month or so before the execution of the crime, Benjamin Ong solicited his help in consummating his plan. Patrolman Roque testified that he tried his best to convince Benjamin Ong to desist but to no avail. It was this witness who revealed Benjamin Ong's plan to ask for money from the rich family of the deceased and, with said money, he, Roque, could already resign from his job should he participate. 21 In his testimony before the lower court, Benjamin Ong vehemently denied having revealed such plan to the witness. 22 However, in his brief, accused Benjamin Ong claims that this testimony if ever there was such, does not reveal his intention to kill Henry Chua that early. At most, he said, it was a mere "infantile thought of wishing someone dead" and no more. 23 On this point, counsel for the accused Ong, argued as follows in their well-written brief: Pat. Roque has not categorically asserted that he was a friend of Benjamin Ong. They came to know each other when he, as a policeman, investigated theft and robbery cases on the complaint of the Acme Shoe and Rubber Corporation where Benjamin Ong worked as Assistant Manager. (pp. 5-7, t.s.n., Sept. 16, 1971) As so why Benjamin would reveal a plan to kidnap another to a policeman, in the absence of a close and long association, is just too incredible to merit belief. Pat. Roque said that Benjamin Ong "confided to me that I am the only person whom he can trust so he further enumerated a detail that he intended to get a money and ask for the money from the parents of the victim. (Id., p. 10) As to why he merited the trust of Benjamin Ong, he did not say. Pat. Marciano Roque said that he has no criminal record (Id., p. 42). He has not conveyed to Benjamin Ong any information that he is a gun for hire (Id., p. 43), nor does he have that reputation (Id., p. 43). If he were a criminal or he had a reputation as a professional killer, it is perhaps possible for one in Benjamin Ong's position to have made the proposition to him. Moreover, when he was cross-examined on the alleged intention to collect ransom, he committed material contradictions such as to raise serious doubt on the veracity of his testimony. He could not categorically assert whether the alleged intention of Benjamin Ong was to kill the victim first and demand MONEY from his parents after, or detain him first, and after receiving ransom MONEY , kill the victim. ATTY. QUISUMBING: Q Your testimony is as follows: that he told you that after demanding the MONEY to kill the man, you remember that? A That was what he said. Q In other words, this was not the way he told you, that he would grab the man so that he could get the MONEY by extortion or by ransom? A He said that after having in his possession his intended victim he would demand someMONEY from his parents. Q I will recall in your direct testimony ... you said that afterwards if he could get the money he will kill the man, that was your first testimony, which is correct? A He lost one hundred fifty thousand. Q And he NEEDED MONEY and so he would demand money from the father or parents of the victim, is that not your testimony? A Yes, sir. Q And afterwards he wanted to kill the man? A No, sir. Q And so what is your testimony now? A After he got the man he will demand money from the parents or ransom money from the parents of the victim. Q So it is the other way. He first would kill the man and afterwards get the money.

ATTY. DE SANTOS The question is misleading. COURT: Answer. WITNESS: A No, sir, he said that after receiving the MONEY the man may be killed. Q Is that your testimony? That he will kill the victim or the victim may be killed? A No, sir. Q So which is which? A He will kill the victim. Q After getting the MONEY ? A Yes sir. (pp. 38-41, t.s.n., Sept. 16, 1971) Another point of conflict is the claim of the prosecution that a ransom note was indeed written and copied by Henry Chua from a prepared note before the latter was ice-picked and buried. It appears that co-accused Bienvenido Quintos stated in his supplementary extrajudicial statement before the NBI that: Yes sir. After we have brought victim some meters away from the road, FERNANDO TAN ordered victim to lie face down on the ground at the same (time) he untied victim and removed the gag while his gun was still pointed at the head of Victim. Thereafter he ordered the victim to copy a prepared ransom note in a piece of yellow paper. I saw the figure $50,000.00 because I was holding then the flashlight. It was only after the ransom note was written and was submitted to BENJAMIN ONG that FERNANDO TAN returned to us. 24 This is hearsay as against Benjamin Ong. And Ong vehemently denied the same in his testimony in open court when he said upon questioning: Q In this statement Exhibit "N", you admitted that Henry Chua was taken from the Mustang car and transferred to the Viscain (sic) car and then brought to that uninhabited place in Barrio Makatipo; what was your purpose in having the late Henry Chua taken from his car and brought to Makatipo? A My purpose was just to kill him, and there is (sic) not going to be any delay. Q Was there any purpose of detaining him for sometime? xxx xxx xxx A No, there was no purpose to detain him any further. 25 Also, in his extrajudicial statement, he said: Q When you hatched the plan to kill HENRY CHUA, did it ever occur to you to demand or ask for any ransom MONEY from the family of HENRY CHUA? A Never, the question of ransom MONEY never entered my mind? 26 Admittedly, no such genuine ransom note was received by the family of the deceased. Undoubtedly, its presence in the crime could aggravate it, allowing the imposition of the capital punishment of death. 27 Also conflicting is the matter of Bienvenido Quintos' participation at the time Henry Chua was dragged into the Biscayne car. The briefs of both parties tend to show that it was Fernando Tan and Baldomero Ambrosio who pulled Henry Chua out of his Mustang car, forced him into the Biscayne car, tied and gagged him. 28 However, Agent Lacanilao testified that in the reenactment of the crime it was shown that Bienvenido Quintos and Fernando Tan were the ones who dragged Henry Chua out of his car. 29 Added to this is the claim of Benjamin Ong that Baldomero Ambrosio merely drove the Biscayne for the group. 30 The prosecution likewise claims in its brief that as early as a week before the incident, the group already chose a site and prepared a hole where to bury Henry Chua; 31 that this group was in constant search of the victim along the nightclub row in Roxas Boulevard during the succeeding evenings but failed to see him; 32 that a day before the unfortunate evening, Ong contacted Miss Clarita Teh of the Skyways Travel Service at Ongpin St., Sta. Cruz, Manila, and asked for a booking for Hongkong and Taipei, and deposited P4,000.00 therein. 33 Similarly, it is alleged that on April 29, 1971, a few days after the incident, Tan and Ong contacted Severo "Boy" Roslin, a long-time friend of Tan, to help them obtain airplane seats for the Visayas, but they failed; 34 that they also proceeded to the pier to seek passage to the South on a boat but they were likewise frustrated; 35 that instead, they took a train ride to Lucena City where Roslin left them and after which, they continued to Legaspi City; 36 that finding no acquaintance there, they went back to Manila; 37 that on May 1, 1971, Tan again engaged Roslin's services and with the latter driving his car, they picked up Quintos and Ong and went to Barrio Balugo, Oas, Albay and stayed there in the house of Roslin's parents; 38 that Ong was left there while Roslin, Tan and Quintos went back to Manila. 39

A reenactment of the crime was had by Benjamin Ong, Bienvenido Quintos and some NBI and MPD agents who played the role of their co-accused Fernando Tan and Baldomero Ambrosio. 40 The trial of this case in the lower court proceeded with commendable speed, although separate trials for the two accused who had been arrested so far at that time were held upon the latter's request. Both entered a plea of "not guilty" to the crime charged upon arraignment on September 4, 1971. However, in the case of Benjamin Ong, he invoked the doctrine laid down in the case of People vs. Yturriaga 41 to the extent that the prosecution should not nullify the mitigating circumstance of a plea of guilty, by counteracting it with "unfounded allegations" of aggravating circumstances in the information. In other words, he admitted his guilt in so far as the crime of simple murder was concerned. 42 Before this Court, the accused Benjamin Ong maintains that: I The Court a quo erred in finding the accused guilty of the crime of kidnapping with murder because — (a) There was no evidence offered against the accused which would prove that the crime of kidnapping was committed at all; (b) Kidnapping cannot be complexed with murder; (c) In those cases where the Supreme Court convicted the accused of Kidnapping with Murder, there was shown an intention to deprive the victim of his liberty, and it was held that the kidnapping was a necessary means to commit the crime of murder. II The court a quo erred in finding that the killing of the deceased was attended by the generic aggravating circumstances of — (a) Abuse of superior strength; (b) Nighttime; (c) Uninhabited place; (d) Abuse of confidence; (e) Use of motor vehicle; and (f) Cruelty. and the qualifying circumstances of — (a) Alevosia (b) Evident premeditation. III Assuming that the killing of Henry Chua was attended by the aggravating circumstance of alevosia, the aggravating circumstance of abuse of superior strength and nighttime, if present, are absorbed by treachery. IV The court a quo erred in not appreciating (a) plea of guilty, and (b) circumstances of a similar nature or analogous to Article 13, paragraphs 1 to 9 of the Revised Penal Code as mitigating. V The court a quo erred in imposing the death penalty upon the accused. VI The court a quo erred in sentencing the accused to pay excessive damages. 43 For his part, the accused Bienvenido Quintos argues that: 1. The lower court erred in giving full weight and credit to the extrajudicial statement of the defendantappellant. 2. The lower court erred in not finding that there was no conspiracy between defendant-appellant Bienvenido Quintos and the other accused. 3. The lower court erred in not acquitting defendant-appellant Bienvenido Quintos. 44 OUR RULING The Evidence on the Alleged Writing of a Ransom Note is Insufficient to Support a Finding in Favor of the Prosecution: First, Benjamin Ong vehemently denied asking for ransom. In the extrajudicial statement of Benjamin Ong, he was asked this question: "Q. When you hatched the plan to kill HENRY CHUA, did it ever occur to you to demand or ask for any ransom money from the family of HENRY CHUA?" to which he answered: "Never, the question of ransom money never entered my mind." (Question No. 5, Exh. N.)

Secondly, no ransom note was presented as evidence by the prosecution, nor did the latter show that a demand for money was made upon the family of the victim. In the case of People vs. Manzanero, Jr. 45, We held: Furthermore, what could have been the motive for the kidnapping? According to the trial court, the ransom money was needed by Manzanero to defray the huge expenses for the day-to-day living of his lawful wife and seven children, and of his mistress and his five children by her, and his repair shop that was earning only about P1,000 monthly could hardly meet the salaries of his 16 workers and mechanics. But is it credible that Manzanero, "being the intelligent and shrewd man that he appears to be," according to the trial court, could even have entertained the illusion that the kidnapping that he was to perpetrate so clumsily and amateurishly would he profitable to him, and he could escape from criminal prosecution? And what is strange is, if the ransom note was indeed written why was it never presented in evidence? The claim that it was lost is unbelievable. That ransom note, if it ever existed, was the most important piece of evidence that could support the prosecution's theory that the kidnapping was for ransom. Certainly, that piece of evidence should be kept and preserved. No plausible explanation was given how that ransom note got lost. Neither the father nor mother of Floresita was made to testify regarding the alleged ransom note. Moreover, if ransom was the purpose of the kidnapping, why did Manzanero so easily, and without apparent reason, give up his alleged criminal enterprise, when he could have pursued it to a successful end? If there was really that ransom note, and that ransom note was sent the most logical thing that Manzanero would have doing was to send instructions to Floresita's family on how, when, and to whom the ransom money should be delivered. There is no evidence that Manzanero ever made any follow up in order to get the ransom. Furthermore, barely two days after the alleged kidnapping for ransom, Manzanero, without having obtained even part of the ransom money, released Floresita. Would a kidnapper, as Manzanero was alleged to be, readily release the victim without realizing his purpose? (Emphasis Supplied) Thirdly, the extrajudicial statement of accused Quintos wherein he stated that Fernando Tan ordered Henry Chua to prepare a ransom note wherein he saw the figure $50,000.00, is tainted with serious doubts due to the apparent maltreatment that Quintos received from the NBI and MPD men on September 3, 1971. 46 The medical certificates and case record 47 issued by the Philippine General Hospital support the findings and remark of the examining physician, Dr. Florencio Lucero, that in the person of accused Quintos, "intramascular hematoma is evident." Besides, it is hearsay and therefore incompetent evidence against Benjamin Ong. And in the reenactment, as testified to by NBI agent Lacanilao, while the ransom note was being prepared, Benjamin Ong was about 50 meters away from the place where the note was being prepared. Fourthly, although both parties in their briefs agree that the victim's hands were tied after he was shoved into the rear floor of the Biscayne car, neither makes a categorical claim that the hands were tied at his back. In fact Acting Solicitor General Hector C. Fule submits in his brief that the victim was made to lie down "face up". 48 This leads to the conclusion that the rope around the victim's hands was never removed at any instance up to the time that he was buried and exhumed. This discounts the idea that before the victim was made to copy a prepared ransom note, the hands at his back were tied, and after the writing, his hands were again tied, this time in front. Bienvenido Quintos in open court positively stated that the victim was made to lie on his back inside the car and his bands tied on his breast. 49 The contrary evidence on this point are those of Agent Lacanilao on the reenactment of the crime which was based on the extra-judicial statement of Bienvenido Quintos. 50 However, as shown above, this statement is of dubious veracity. Finally, that appellants never intended TO MAKE MONEY out of the murder of Henry Chua, can be clearly deduced from the fact that Chua was buried with everything in his person; and during the exhumation of his body, his brother, Sy Yap Chua, identified the articles found in the body of the deceased, such as a Piaget watch worth around P10,000.00 (Exh. B), a wallet together with MONEY , with P50 bills and other denominations. In the light of the foregoing facts and circumstances, We cannot give any credence to the testimony of Patrolman Roque that about the first week of April, 1971, Benjamin Ong confided to him his plan to get a man who cheated him in gambling by as much as P150,000.00; that he would ask for MONEY from the latter's parents and after which he would kill the victim. And the facts brought out on cross examination of this witness, which We have discussed earlier, show the incredibility of Ong confiding to Patrolman Roque his criminal intention, particularly, his intention to ask money from the parents of the intended victim. As a matter of fact, this witness, on cross examination, got lost, so to speak, on the point of whether according to Ong, he would first kill the intended victim and demand money from his parents afterwards, or detain him first and, after receiving a ransom money, kill the victim. Furthermore, from the first week of April, 1971, when this intention was allegedly revealed by Ong to this witness, Ong could have changed his mind with

respect to the demand for money when the victim was actually taken and killed in the early morning of April, 1971. There was no Kidnapping to Make the Crime a Complex one of kidnapping the Murder The extrajudicial confession (Exhibit N) of accused Benjamin Ong was affirmed and confirmed by him in open court, thus: Q I show you this document marked as Exhibit "N", statement of Benjamin Ong, dated September 1, 1971, do you admit that this is your statement given to the NBI? A Yes, sir. Q In this statement, Exhibit "N", you admitted that Henry Chua was taken from the Mustang car and transferred to the Biscayne car and then brought to the uninhabited place in Barrio Makatipo, what was your purpose in having the late Henry Chua taken from his car and brought to Makatipo? A My purpose was just to kill him, and there is not going to be any delay. Q Was there any purpose of detaining him for sometime? A No, there was no purpose to detain him any further. And the evidence on record shows clearly that the deceased Henry Chua and Benjamin Ong left the Wigwam Nightclub at Parañaque, at about 1:30 a.m. on April 24, 1971, in the car of Chua. Chua went voluntarily with Ong, so much so that Chua himself drove his car. They were already in Del Monte Avenue, near the place in Caloocan where Chua was killed and buried when they tied the hands of the deceased; that there were still disagreement among the four accused on who would kill the deceased, until finally it was the co-accused Fernando Tan who stabbed him with an icepick; and that the four accused, including two others, parted from each other at 7:00 o'clock in the early morning of April 24, 1971 after they brought the car of Chua and left it in Bo. Tibag, Baliuag, Bulacan. In view of the foregoing facts and circumstances, We hold that there was no kidnapping, but only murder, because the detention of Chua was only incidental to the main objective of murdering him and was not a necessary means for the commission of the murder. From the Commentaries on the Revised Penal Code of Justice Aquino, an acknowledged authority in criminal law, We find the following: If the detention of the victim is only incidental to the main objective of murdering him, and is not a necessary means for the commission of the murder, the crime is only murder and not the complex one of murder through kidnapping. In the Guerrero case, the accused Huks brought to the mountain two persons, father and son. The father was killed. The son, a 14-year old minor, was above to escape on the second night following his detention. HELD: The accused were guilty of murder as to the father and kidnapping as to the son. In a 1902 case, the victim was taken from his house and then brought to an uninhabited place, where he was murdered. HELD: The crime was murder only. There was no illegal detention "since it does not appear that it was the purpose of the accused to commit this offense. The primary objective was to kill the victim. Where after the robbery committed in a house, three of its inmates were taken to a place near the river one kilometer from the house, where they were killed, the kidnapping was deemed absorbed in the crime of robbery with homicide. Where the appellants kidnapped the victim at his house at Avilos Street, Manila and forded him to ride in a car, but while the car was at the intersection of Libertad Street, Pasay City, the victim jumped from the car and was shot to death, the crime was held to be murder only. (I Revised Penal Code by Justice Aquino). And We quote from the brief of appellant Ong: The crime committed was only murder. — As early as the case of US vs. Nicolas Ancheta, et al. (No. 422, March 14, 1902; 1 Phil. 165), it was held that where the accused kidnapped the victim, Ventura Quinto, took him to a place called Radap and there by order of Nicolas Ancheta and Sebastian Dayag, the victim was killed, the crime committed by them was murder. The acts committed by the accused do not constitute the crime of illegal detention since the deceased was captured in his house and taken by the accused to an uninhabited place selected by them for the purpose of killing them there. (At p. 169). In the case ofUS vs. Teodoro de Leon (No. 522), March 10, 1902; 1 Phil. 163), there was a demand for the payment of ransom. Nevertheless, the accused was found guilty not of kidnapping with murder but of murder only. In this case, the deceased, Don Julio Banson was forcibly removed from his house by Fabian Tolome, by order of Teodoro de Leon. He was tortured and maltreated by the defendant until they arrived at a place called Bulutong. "Not satisfied with torturing the deceased by himself he (Teodoro de Leon) ordered Tolome to give him a blow upon the chest with a bolo. Don Julio begging for mercy, the defendant sent one of his servants to the wife of the deceased to ask for $1,000.00 for his ransom. After the

servant had been sent all were led to a place called Cosme and upon arriving there the defendant ordered Fabian and Tomome to conduct Don Julio to a ditch. At the same time the witness and his three companions were given their liberty by the defendant, who remained with his two companions and with Don Julio. Don Julio was never afterwards seen alive and his headless body was found two or three days later in this same place." The accused was found guilty of the crime of murder. Similarly, in the case of US vs. Emiliano Cajayon, et al. (No. 981, Oct. 8, 1903; 2 Phil. 570) twelve armed men kidnapped Tranquilino Torres and took him with them to the barrio Maliig in the town of Lubang, Cavite province, where they killed him and buried him in a hole dug for that purpose. It was held that the crime committed was murder. The pertinent facts of the case are stated briefly as follows: About 20 armed men forced their way into the house of Felix Marin, made him and his son prisoners, and carried them off with their arms tied behind their backs. From there they proceeded to the house of the head man of the barrio which they set on fire, and after capturing all the inmates, brought them to an estero called the "Pasig" where they set all prisoners free, except Felix Marin and Isabel Beltran. These two they took away in a boat and carried to a clump of manglares, at the edge of the estero, where Maris still bound, was decapitated by one of the band with a single stroke of a bolo. Isabel Beltran was set free. It will be noted that as to Isabel Beltran, the son of Felix Maris and the others, who were made prisoners, there was deprivation of liberty. Nevertheless, the accused was found guilty of murder, and not of kidnapping with murder. In the case of People vs. Magno Quinto, et al. (L-1963, Dec. 22, 1948; 82 Phil. 467), it was established that Gregorio Caling was picked up at his home in Floridablanca, Pampanga by a band of Hukbalahap on the night of December 9, 1945 and taken to the bank of the Gumain River, Gregorio Caling was investigated in connection with his arms, maltreated, and subsequently killed. The judgment finding him guilty of murder was affirmed. In the case of People vs. Juan Bulatao (L-2186, Jan. 29, 1949; 82 Phil. 743), one Jose Tan was forcibly taken by four armed men, among them the accused. The following morning, the victim was found dead. It was also held that the accused was guilty of murder. In the case of People vs. Eufracio Lansang (L-1187, Jan. 25, 1949; 82 Phil. 662) the accused who participated in the kidnapping of the victim who was thereafter killed was found guilty as an accomplice in the crime of murder. The case of People vs. Alejandro Mendiola, et al. (L-1642, Jan. 29, 1949; 82 Phil. 740) is more significant. In this case the Supreme Court said: "The circumstances of the case, as proved by the evidence, lead us to the conclusion that each and everyone of appellant took part with Taciano V. Rizal in a conspiracy to kidnap as they did Teofilo Ampil and they are all equally responsible for his killing, which was perpetrated in accordance with the plan of the kidnappers. Once the kidnapping has been decided, the authors necessarily had to entertain the killing as one of the means of accomplishing the purposes of kidnapping. "The three appellants were correctly found by the trial court guilty as authors of the crime of murder ..." In the case of People vs. Francisco Moreno (L-2335, March 7, 1950; 85 Phil. 731), several armed men went to the house of Manuel Artates in barrio Pogoncile Aguilar, Pangasinan, and took him to the Marapudo Mountains in Mangatarem where, he together with one Jose Jasmin, was beheaded. Thereafter, "the defendant Francisco cautioned all the men who took part in or witnessed the execution as well as the kidnapping of the two men not to reveal to anyone what they had seen that night under penalty of punishment." The decision of the trial court finding the appellant guilty of murder was affirmed. In the case of People vs. Alfredo Riparip, et al.(L-2408, May 31, 1950; 85 Phil. 526), one Enrique Roldan was on December 27, 1944 kidnapped and on the following day killed by certain guerilla units. The accused were found guilty of the crime of murder. In People vs. Gaudencio Villapa, et al. (L-4259, April 30, 1952; 91 Phil. 189), the deceased Federico Agonias was taken by the accused from the house of Guillermo Calixto in barrio San Marcelino, Balugao, Pangasinan, and he was killed about 50 meters from the house. They were found guilty of murder. In People vs. Emeterio Sarata, et al. (L-3544, April 18, 1952; 91 Phil. 111), it appeared that the four accused took the victim Sabiano Bucad from his house, placed him in a banca and sailed towards the opposite shore of the Bato lake where the victim was maltreated and killed by the accused. It was held that the crime committed was murder. In the case of People vs. Eligio Camo and Buenaventura Manzanido (L-4741, May 7, 1952; 91 Phil. 240), the accused took the deceased Patricio Matundan from his house in the barrio of Conda to the barrio of Talaan, both of the Municipality of Sariaya, Quezon. Upon reaching a place near the mangroves, the group stopped, and accused Camo shot and killed the victim. The accused were charged with the crime of murder with kidnapping. The Supreme Court held: "The Solicitor-General next contends that the offense committed was the complex crime of kidnapping with murder. Again, we are inclined to agree with the trial court that the crime committed was simple murder. It is true that Patricio was taken from his home but it was not for detaining him illegally for any length of time or

for the purpose of obtaining ransom for his release. In quite a number of cases decided by this court where the victim was taken directly from his house to the place where he was killed, kidnapping was not considered to raise the offense to the category of a complex." (At p. 246) In People vs. Nestorio Remalante (L-3512, Sept. 26, 1952; 92 Phil. 48), the accused with about 10 armed men met Mercedes Tobias, accompanied by Eusebio Gerilla and Lucia Pilo, on the way to her home in the barrio of Guiarona, municipality of Dagami, Province of Leyte. The accused took hold of Mercedes Tobias and dragged her, while at the same time striking her with the butt of his rifle at different parts of her body. Eusebio Gerilla and Lucia Pilo saw Mercedes being dragged towards the sitio of Sawahan. Hardly had they walked one kilometer when they heard gun reports. The following day, Mercedes was found dead in Sawahan with two gunshot wounds. Nestorio Remalante was charged and found guilty by the trail court of the crime of kidnapping with murder. As to the charge of kidnapping, the Supreme Court held: "There is no sufficient evidence of intention of kidnap because from the moment Mercedes Tobias was held and dragged to the time when the gun reports were heard nothing was done or said by the appellant or his confederates to show or indicates that the captors intended to deprive her of her liberty for sometimes and for some purposes and thereafter set her free or kill her. The interval was so short as to negative the idea implied in kidnapping. Her short detention and ill-treatment are included or form part of the perpetration of the crime." (at p. 51) In the case of the People vs. Silvino Guerrero, et al., (L-9559, May 14, 1958; 103 Phil. 1136, Unrep), the appellants were found guilty for the murder of Candido Disengano and the kidnapping of Paulo Disengano. As tot he killing of Candido Disengano, it was held: "As the court a quo has correctly held, appellants cannot be convicted of the complex crime of kidnapping with murder under Article 48 of the Revised Penal Code, for the reason the kidnapping was not a necessary means to commit the murder. Candido was detained and brought to the mountains to be killed — this we have held may not be considered kidnapping with murder but mere murder. (People v. Camo, G.R. No. L-4741, May 7, 1952; People vs. Remalante G.R. No. L-3512, 48 O.G. 3881-3883; People v. Villapa, et al., G.R. No. L4259, April 30, 1952) [13 Velayo's Digest (new series) 337; please see also 103 Phil. 1136]" In People vs. Santos Umali, et al., (L-8860-70, January 23, 1957; 100 Phil. 1095 Unrep.), the accused were charge and convicted by the trial court of kidnapping with murder. The evidence shows that the deceased was killed in front of this house. The crime committed is only murder. (13 Velayo's Digest [New Series], p. 340). In People vs. Cenon Serrano alias Peping, et al., (L-7973, April 27, 1959; 105 Phil. 531), the accused were charged with illegal detention with murder. After a drinking spree, the accused, Cenon Serrano, suggested to the deceased Pablo Navarro to leave Bacolor, Pangpanga for San Fernando for a good time, to which suggestion the latter agreed. While the victim together with the accused Cenon Serrano and others were on the way to San Fernando, Cenon Serrano suggested that they proceed to Angeles for a good time to which Pablo Navarro agreed. Upon reaching barrio San Isidro, Cenon Serrano ordered the driver to proceed to barrio Dolores, Bacolor, Pampanga where the deceased was detained and questioned at the stockade of the civilian guards. That same afternoon, Pablo Navarro was taken out of the stockade and was brought to sitio Castilang Malati where the deceased was shot and killed. The trial court found the defendants guilty of the crime of murder. The decision was affirmed by the Supreme Court. In People vs. Rosario Lao, et al. (L-10473, January 28, 1961; 1 SCRA 42), one Rosa Baltazar was taken by two of the accused and killed beside a creek about 6 to 10 meters away from the hatchery of the Lao poultry farm where she was staying. The trial court found them guilty of the crime of kidnapping with murder. The Supreme Court held that "the crime committed is not kidnapping with murder as stated in the title of the information but murder.". In People vs. Felipe Sacayanan (L-15024-25, Dec. 31, 1960; 110 Phil. 588), a group of five armed men forcibly took from their hour the victims Juan Galaraga and Victor Alamar to a place about 40 meters away from the house where they were shot. Juan Galaraga died. Victor Alamar was seriously wounded. The trial court convicted the accused of the complex crime of kidnapping with murder. The Supreme Court held that this was error. "Nothing was said or done by the accused on his confederates to show that they intended to deprive their victims of their liberty for sometime and for some purpose. There was no appreciable interval between their being taken and their being shot from which kidnapping may be inferred." (See People v. Remalante, 92 Phil. 48; O.G. [9] 38881). From the foregoing discussion, it seems clear that the weight of authority is in favor of the proposition that where the victim was taken from one place to another, solely for the purpose of killing him and not for detaining him for any length of time or for the purpose of obtaining ransom for his release, the crime committed is murder, and not the complex crime of kidnapping with murder. This ruling is entirely consistent

with law. Art. 267 of the Revised Penal Code penalizes a person "who shall kidnap or detain another," and the penalty becomes capital "where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person." xxx xxx xxx In the case at bar, the only evidence appreciable against the appellant Benjamin Ong regarding the surrounding circumstances of Henry Chua's death are (1) the extrajudicial statement of Benjamin Ong, (2) the testimony of Benjamin Ong during the trial, (3) the testimony of agent Enrique Lacanilao about the reenactment of the crime. . In the extrajudicial statement (Exhibit N) Benjamin Ong said that from the Wigwam nightclub, Henry Chua and he rode on Henrys Mustang Car with the latter driving it. Fernando Tan and his friend were in the Biscayne car of Benjamin Ong following the Mustang (Answer to Question No. 40, p. 3, Exh,. N). At Araneta Avenue in Quezon City, Benjamin Ong requested Henry Chua to stop the car to enable him to urinate. When Henry Chua complied, Fernando Tan and his friend stopped in front of the Mustang car, pretending to be policeman, and ordered Henry Chua to go with them to the police precinct. (Id., p. 5) Fernando Tan drove the Biscayne car, while Benjamin Ong in henry Chua's car followed. From Araneta Avenue, Fernando Tan drove to Novaliches where Henry Chua was killed, (Id.) It will be noted that no appreciable time elapsed from arrival at Novaliches up to the time Henry Chua was killed, to indicate a separate intention to deprived the latter of his liberty. When Benjamin Ong testified on September 22, 1971, he affirmed his admission of responsibility for the death of Henry Chua (t.s.n.., Sept. 22, 1971, p. 26). He further testified as follows: ATTY. QUISUMBING: Q In this statement Exhibit "N", you admitted the Henry Chua was taken from the mustang car and transferred to the Biscayne car and then brought to that uninhabited place in having the late Henry Chua taken from his car and brought to Makatipo? A My purpose was just to kill him, and there is not going to be any delay. Q Was there any purpose of detaining him for sometime? xxx xxx xxx A No, there was no purpose to detain him any further. (Id., pp. 27-28) The narration of agent Enrique Lacanilao about the enactment of the crime showed that there was no detention of the deceased Henry Chua for any length of time. He was killed and promptly buried. (Please see pp. 43-47, t.s.n., Sept. 18, 1971). On the basis of the foregoing evidence, the accused can hardly be held liable for kidnapping as well. It may not be amiss to state that an accused is entitled to acquittal unless his guilt is shown by proof beyond reasonable doubt. (Rule 133, Section 1, Revised Rules of Court). The evidence at hand hardly satisfied the requirement of proof beyond reasonable doubts as to the charge of kidnapping. The necessary result is that the accused can be held liable only for the killing of Henry Chua. [Brief for the Appellant Benjamin Ong y Kho, pp. 43 to 56] And the evidence on record clearly show that Henry Chua voluntarily went with Benjamin Ong when they left the Wigwam Nightclub at Parañaque at about 1:30 a.m. on April 24, 1971, so much so that they rode in the car of Chua and it was driven by Chua himself. The two drove straight down Roxas Boulevard, then to Quiapo, and Quezon Boulevard Extension in Quezon City; and after passing Sto. Domingo Church, they made a turn towards a dirt road leading to Del Monte Avenue. When they reached a dark and secluded place, Benjamin Ong urged Chua to stop the car for the former to urinate to which the latter obliged. The Biscayne car where Fernando Tan, Bienvenido Quintos and Baldomero Ambrosio were riding, stopped. Fernando Tan poked his gun at Chua and pulled him from his Mustang car with Ambrosio giving help. His hands were tied his mouth gagged with a flannel cloth, and he was placed in the Biscayne car. Tan and Bienvenido Quintos then rested their feet on him. Then Ambrosio drove the Biscayne while Ong drove the Mustang. They proceeded towards Barrio Makatipo, Novaliches, Caloocan City, where Henry Chua was stabbed to death and buried. In other words, the time interval When the deceased Henry Chua was actually deprived of his liberty was short (from Del Monte Avenue to Barrio Makatipo, Novaliches, Caloocan); and the same was only incidental to the main objective of murdering him. The only authority cited by the prosecution on this point is that of the case of Parulan vs. Rodas (88 Phil. 615). But the ruling in the Parulan case cannot be applied to the case at bar, because in the Parulan case, the Court found that the kidnapping was a necessary means for the purpose of extorting ransom from the victim and killing him if the desired amount could not be given; and that the defendants had to kidnap or carry the victim from Manila (where he was already deprived of his liberty, with Parulan poking his gun on the victim), to a faraway and secluded place (a river in Bambang, Bulacan) in order to better secure the consent of the victim

through fear to pay the ransom, and kill him if he refuses to accede to their demands, as in fact he was killed be Parulan because of his (victim's) refusal to the ransom. We Hold that Both Appellants are Guilty of Murder The killing of the victim in this case was attended by several qualifying and aggravating circumstances. The facts on record prove this, beyond reasonable doubt, even if we were to disregard the extrajudicial confession of Benjamin Quintos which he denied and was allegedly extracted from him through force and intimidation. Treachery (alevosia) qualified the killing to murder. Undisputed facts show that Henry Chua's hands were tied and his mouth was gagged with a flannel cloth before he was stabbed twice with an icepick and buried in a shallow grave near a creek. These facts portray well that the tied hands of the victim rendered him defenseless and helpless thereby allowing the accused to commit the crime without risk at all to their person. 51 The accused Benjamin Ong and Bienvenido Quintos, however, were quick to insist that this circumstance should not be taken against them because they did not do the actual stabbing (which was done by Fernando Tan). Easily, the weakness of this claim can be discerned. Conspiracy, connivance and unity of purpose and intention among the accused were present throughout in the execution of this crime. The four participated in the planning and execution of the crime and were at the scene in all its stages, They cannot escape the consequence of any of their acts even if they deviated in some detail from what they originally thought of. Conspiracy implies concert of design and not participation in every detail of execution. 52 Thus, treachery should be considered against all persons participating or cooperating in the perpetration of the crime. 53 With regards to the aggravating circumstance of abuse of superior strength, the same should be deemed absorbed in treachery. This position is itself supported by the Acting Solicitor General in his brief and is sustained in a long line of decisions. 54 In the same vein, the accused would like the aggravating circumstance of nighttime (nocturnidad) to be absorbed in treachery in that it forms part of the peculiar treacherous means and manner adopted to insure the execution of the crime. The case of People vs. Berdida 55 provides the exception to this rule and is applicable to the case at bar. It was there held that: From the facts and evidence of record in this case, it is clear that appellants took advantage of nighttime in committing the felonies charged. For it appears that to carry out a sentence they had pronounced upon Antonio Maravilla and Federico Cañalete for the death of one Pabling, they had evidently chosen to execute their victims under the cover of darkness, at the dead of night, when the neighborhood was asleep. Inasmuch as the treachery consisted in the fact that the victims' hands were tied at the time they were beaten, the circumstance of nighttime is not absorbed in treachery, but can be perceived distinctly therefrom, since the treachery rests upon an independent factual basis. A special case therefore is present to which the rule that nighttime is absorbed in treachery does not apply. 56 This aggravating circumstance was correctly appreciated by the lower court regardless of whether or not the same was purposely and deliberately sought by the accused for it is clear that the darkness of the night facilitated the commission of the crime and was taken advantage of by them. 57 The purposive selection of an uninhabited place (despoblado) is likewise clear from the evidence. The killing was done in Barrio Makatipo, Novaliches, Caloocan City, an isolated place that resembled that of an abandoned subdivision. The place was ideal not merely for burying the victim but also forkilling him for it was a place where the possibility of the victim receiving some help from third persons was completely absent. The accused sought the solitude of the place in order to better attain their purpose without interference, and to secure themselves against detection and punishment. 58 As aptly stated in the "Sentence" of the lower court: ... The possibility of the victim calling for succor or assistance from any third person was ruled out by the chosen site. Trees, lush vegetation and thick cogon grasses hide the place where the crime was committed from the view of even a chance passerby. The choice of an uninhabited place for the killing of Henry Chua, therefore, further aggravated the offense committed by the accused. People vs. Curiano, L-15256-57, October 31, 1962; U.S. vs. Vitug, 17 Phil. 1). 59 In the case of the aggravating circumstance of abuse of confidence (abuso de confianza), it appears that the lower court wrongly appreciated this circumstance. In order for this circumstance to obtain, it is necessary that there be a relation of trust and confidence between the accused and the one against whom the crime was committed, and that the accused made use of such relation to commit the crime. 60 It is essential too that the

confidence be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence. 61 Nowhere in the records does it appear that Henry Chua reposed confidence upon the person of Benjamin Ong. If any, Henry Chua was simply not afraid of Benjamin Ong, having told and bragged to the latter about his violent exploits in the past and threatened him with bodily harm in case of failure to pay. 62 He knew that he was far stronger than Benjamin Ong in terms of influence and money. He thought that Benjamin Ong would fear him. The fact that Henry Chua invited Ong for nightclubbing that fatal evening and accommodated him in his car on their way home from the nightclub does not mean that Henry Chua had confidence in him. There was no special relation of confidence between them. He knew that Benjamin owed him a substantial amount and that its settlement had long been overdue which fact irritated him very much. Benjamin Ong and Henry Chua were together that night in the nightclub as well as in the car not because of said confidence. It was simply because Benjamin Ong had some accounts to settle with him. Thus, in the case of U.S. vs. Cruz, et al., 63 it was held that: . ... The fact of Cabaya having simulated friendship and desire for work, together with the companions who went with him, and the fact that he received food and work immediately upon being accepted by the Americans to work in the mines, is not, as stated in the judgment, a degree of treachery, according to law, sufficient to constitute the aggravating circumstance of abuse of confidence. It may however, be argued as unworthy conduct and ingratitude, but not as abuse of confidence. It is necessary first to show what has been the confidence granted or given in order to determine whether there was or was not an abuse of it, and in the present case there is nothing to show what the confidence given or conceded to Cabaya was, that could facilitate the commission of the crime. Likewise, in the case of People vs. Brocal, 64 it was held that: There is no abuse of confidence in attempted rape where on the day of the crime the accused was in the company of the offended girl, not because of her confidence in him, but because they were partners in a certain business. More convincing this time is the aggravating circumstance of use of motor vehicle in the commission of the crime. The Biscayne car of Benjamin Ong was used in trailing the victim's Mustang car from Wigwam Nightclub up to the time that it was overtaken and blocked. It carried the victim on the way to the scene of the killing, it contained at its baggage compartment the pick and shovel used in digging the grave; it was the fast means of fleeing and absconding from the scene. Again, the motor vehicle facilitated the stark happening. It has been held that the use of a motor vehicle is aggravating in murder where the said vehicle was used in transporting the victim and the accused. 65 Cruelty (ensanamiento) as an aggravating circumstance, cannot be considered here. The brief of the Acting Solicitor General agrees with that of the accused in denying the attendance of cruelty as an aggravating circumstance. Indeed, as it appears from the record, the group intended merely to kill the victim, bury him, and flee from the locale of the fearful crime. For cruelty to exist, it must be shown that the accused enjoyed and delighted in making their victim suffer slowly and gradually, causing him unnecessary physical or moral pain in the consummation of the criminal act. 66 Even granting that the victim died because of asphyxiation when he was buried and not hemorrhage from stab wounds, as testified to by Dr. Ibarrola 67, which however, has been contradicted by his own necropsy report which shows that the cause of death was the "punctured wounds in the abdomen," and by Dr. Lara who testified that the two wounds could have produced death due to shock, it appears that the victim's burial was not meant to make him suffer any longer but simply to conceal his body and the crime itself. Concededly, the qualifying circumstance of evident premeditation (premeditacion conocida) attended the commission of the crime. What else can better portray this circumstance than the frequent meetings 68 of the four accused at the Barrio Fiesta Restaurant in order to discuss, lay out the plan, and secure the different paraphernalia consisting of the rope, icepick, flannel cloth, flashlight and shovel 69. Added to this is the careful selection of an "ideal" site for the grissly happening 70. Similarly, the plan to go to Taipei and Hongkong immediately after the incident pictures the presence of evident premeditation 71. The accused meditated and tenaciously persisted in the accomplishment of the crime and were not prompted merely by the impulse of the moment. 72 The claim of the accused Benjamin Ong that the mitigating circumstance of plea of guilty should be appraised in his favor, is hereby sustained. Indeed, the kidnapping portion of the crime cannot be appreciated here beyond reasonable doubt as stated at the outset. Furthermore, it can be seen that the prosecution alleged so

many aggravating circumstances which should be absorbed in one or the other. To plead guilty to this information naturally would be most unfair for the accused especially where the penalty would be the capital punishment of death. The accused showed signs of remorsefulness upon his arrest when he cooperated with the police authorities in the solution of the crime. As held in the case of People vs. Yturriaga 73, ... It only remains to consider briefly whether the defendant's plea of guilty in the form it was entered constitutes a voluntary confession of guilt before the court as defined in the same subsection of Article 13. We think it does. Although the confession was qualified and introduction of evidence became necessary, the qualification did not deny the defendant's guilt and, what is more, was subsequently fully justified. It was not the defendant's fault that aggravating circumstances were erroneously alleged in the information and mitigating circumstances omitted therefrom. If such qualification could deprive the accused of the benefit of plea of guilty, then the prosecution could nullify this mitigating circumstance be counteracting it with unfounded allegations of aggravating circumstances. We hold that the accused Benjamin Ong is likewise entitled to the mitigating circumstance that is analogous to passion and obfuscation (Art. 13, par. 10, Revised Penal Code), based on the following facts stated in his brief: a) Henry Chua and his companions went to the office of Benjamin Ong. In a loud voice, with angry gestures, and in the presence of his subordinates and fellow employees, Henry Chua demanded payment, and threatened bodily harm to him and his family. b) Henry Chua went as far as to threaten the life of Benjamin Ong unless his obligation to Chua was paid. "If you treasure your life, you better pay first." c) Because of this incident, he, Benjamin Ong, "was humiliated." d) His brother-in-law, Chua Pak told him that he was holding a very responsible position in the company and so he should not be involved in any scandal. e) He was "discredited and degraded in front of my brother-in-law." He was so embarrassed, he finally tendered his resignation from the company. f) Because of the threat of Henry Chua, the accused tried to GET MONEY from all sources but he was not successful. The allotted time was so short. To relieve him of the pressure brought to bear upon him to pay his gambling debt, he even thought of embezzling MONEY belonging to the company in which he worked. g) Because of his inability to raise MONEY to be paid to Henry Chua, he became "deeply depressed." He felt: "I was being turned into a criminal. h) He begged Henry Chua to give him more time to raise the money. "Nagmamakaawa na ako sa kanya." This was the night before Henry Chua was killed. If Henry Chua had granted him time "the whole plan to kill Henry Chua might not materialize." But Henry Chua, while not relenting, but perhaps in utter contempt and disdain of Benjamin Ong instead decided to transfer from Amihan to Wigwam because he wanted to be entertained by a hostess. Henry Chua, it will be noted, was well known to Wigwam hostess, Ligaya Tamayo. Benjamin Ong was seen by her for the first time that evening. i) So while Chua enjoyed himself, Benjamin Ong was worried, as he pleaded with Henry Chua in vain for more time to pay the obligation. xxx xxx xxx In People vs. Timoteo Olgado, et al (L-4406, March 31, 1952; 91 Phil. 908 Unrep.), the two accused were provoked to commit two murders because of the indecent propositions made to the women by Jalumio and his companions. For Mario Aninias, this is the mitigating circumstance of passion and obfuscation or vindication of a grave offense to his wife. 74 In this regard, accused Benjamin Ong filed on October 10, 1973 before this Court a Petition for New Trial and/or to Consider Case as Simple Murder. 75 In this petition, Benjamin Ong's wife, Athena Caw Siu Tee Ong, alleged in an affidavit an incident when her husband refused to allow her to testify on during the regular trial in the lower court. She said that Benjamin Ong suppressed it because it would be a source of "great shame" to their family. Indeed, the records show how Benjamin Ong's counsel vainly convinced him to tell it but he refused to do so. 76 Lately, Benjamin Ong has changed his mind and has consented to his wife's divulging the story. Said story simply consists of Henry Chua's proposal of love and attempted rape allegedly committed on the person of Athena on April 15, 1971 which Henry Chua asked in lieu of the payment of the gambling debt. However, this matter is now academic because it would only tend to bolster the mitigating circumstance that is analogous to passion and obfuscation, which we have just considered in favor of the accused Benjamin Ong.

IN VIEW OF ALL THE FOREGOING, the two accused-appellants Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag, are hereby found guilty beyond reasonable doubt of the crime of murder with the attendant qualifying circumstance of treachery, and the aggravating circumstances of evident premeditation and use of motor vehicle. These two circumstances are offset by the mitigating circumstances of plea of guilty and one similar or analogous to passion or obfuscation which are appreciated in favor of accused-appellant Benjamin Ong who is hereby sentenced to reclusion perpetua. Justices Teehankee and Makasiar, however, are of the opinion that the crime committed by the two accused-appellants Benjamin Ong and Bienvenido Quintos is kidnapping with murder and that the kidnapping was conceived for the purpose of extorting ransom, among other motives. The members of the Court failed to arrive at a clear consensus on the existence of the aggravating circumstances of "nighttime" and "uninhabited place" (which Justice Barredo, in his concurring and dissenting opinion, concluded do not obtain in this case). With respect to the accused-appellant Bienvenido Quintos, although no mitigating circumstance can be appreciated in his favor, and he should therefore be sentenced to death, the Court hereby imposes upon him the penalty of reclusion perpetua and not death, because of Our conclusion that his co-accused-appellant Benjamin Ong should be sentenced only to reclusion perpetua, and because Justice Barredo, in his concurring and dissenting opinion, even concluded that Bienvenido Quintos is guilty only as an accomplice; and hence, in any event, We would not have the necessary ten votes for the imposition of the death penalty upon said accused-appellant. . As We hereby sentence the two accused-appellants Benjamin Ong and Bienvenido Quintos to suffer the penalty of reclusion perpetua, We affirm that part of the decision under review, which sentenced them jointly and severally to indemnify the heirs of the deceased Henry Chua in the amount of P1,000.00; to pay moral damages in the amount of P50,000.00, and another P50,000.00 as exemplary damages; and to pay their proportionate share of the costs, as We find no reason to disturb the same. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-38624 July 25, 1975 THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. CONRADO BAUTISTA and GERARDO ABUHIN, defendants and appellants. Natividad Maravilla Dato as Counsel de Oficio for appellants. Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Guillermo C. Nakar, Jr., and Celia Lipana-Reyes for appellee. PER CURIAM: Mandatory review of the death penalty imposed by the Circuit Criminal Court of Pasig, Rizal in its decision in case "CC-VII-847-Rizal" for Murder, entitled "People vs. Conrado Bautista and Gerardo Abuhin", the dispositive part of which reads as follows: WHEREFORE, finding the accused, Conrado Bautista and Gerardo Abuhin, GUILTY, beyond reasonable doubt, of the crime of Murder, under Article 248 of the Revised Penal Code, as charged in the information, the Court hereby sentences each one of them to suffer the penalty of DEATH; to indemnify the heirs of the offended party the amount of P12,000.00; to pay the amount of P5,000.00 as moral damages; and another P5,000.00 as exemplary damages; and to pay their proportionate shares of the costs. Prisoners George Daeng, No, 56088-P; Rolando Castillo, No. 31087-C (these two already sentenced previously); Conrado Bautista, No. 71055-P; Gerardo Abuhin, No. 61409-P who are serving sentence by virtue of final judgment, in the New Bilibid Prison, Muntinlupa, Rizal, were accused of Murder, committed as follows: . That on or about December 13, 1970, in the New Bilibid Prison, Muntinglupa, Rizal, Philippines, and within the jurisdiction of this Honorable Court, the said accused while then confined at the said institution, conspiring, confederating and acting together and each armed with improvised deadly weapons, did, then and there wilfully, unlawfully and feloniously assault and would therewith one Basilio Beltran, No. 71495-P, another convicted prisoner serving final sentence in the same institution, then in the process of serving the

accused breakfast, inflicting upon him multiple stab wounds while then unarmed and unable to defend himself from the attack launched by the accused, as a result of which the said Basilio Beltran died instantly. That the offense when committed by the accused was attended by the qualifying circumstance of treachery and generic aggravating circumstances of evident premeditation and obvious ungratefulness. CONTRARY TO LAW. Both accused Conrado Bautista and Gerardo Abuhin were arraigned on March 10, 1973, and they pleaded not guilty, after which the case went to trial on the merits. The evidence for the prosecution established the following facts: That on or about 6:15 in the morning of December 13, 1970, a stabbing incident took place near the door of 8C (cell house) at building 8; that the victim in said stabbing incident was Basilio Beltran who was also a prisoner in the New Bilibid Prison with the rank of IC (Inmate Cadet); that on said date and time, while prison guard Armando Miranda, assigned keeper at Building 8 was then opening the door of 8-C, where members of the Sigue-Sigue Sputnik Gang were confined, with him were IC Basilio Beltran and Domingo Mallari, both confined at dormitory 8-A-2, who were then carrying bread ration for breakfast of the Sigue-Sigue Sputnik Gang at 8-C, when all of a sudden, the four accused, two of whom were already sentenced, and two of whom were Conrado Bautista and Gerardo Abuhin, rushed out from their cell and attacked and stabbed to death prisoner Basilio Beltran, while Domingo Mallari sneaked away from the attackers; that the victim, Basilio Beltran, was facing the accused, standing, carrying the breakfast ration for the occupants of 8-C when he was almost simultaneously stabbed by his attackers as a result of which he sustained multiple stab wounds, numbering 12 in all, on the different parts of his body; that the weapons used in stabbing the victim were matalas or improvised deadly instruments; and an icepick which is improvised also; that the accused were investigated by the investigators and they admitted having killed the victim because of an alleged threat by the inmates cadets that they would kill any member of the Sigue-Sigue Sputnik Gang everytime that the IC delivered their ration, so that they moved ahead of the IC by taking that opportunity. Their defenses of denial and alibi based on testimonial evidence of the accused, and their claim that their written statements admitting the crime were extracted from them by force and intimidation, consisted of: The accused Conrado Bautista was placed on the witness stand and he testified that he was 28 years old, married and a woodcarver by Occupation and formerly residing at 2504 Cagayan St., Sta. Ana, Manila, but now an inmate of the New Bilibid Prison, Muntinglupa, Rizal, after having been convicted by final judgment for the crane of Robbery. In the course of the direct examination by counsel de oficio, Atty. Leonora M. Cabasal, accused Bautista intimated to his counsel that he be allowed to withdraw his former plea of not guilty and that he be allowed to substitute it with a plea of guilty. He was asked by his counsel, if he realized the gravity of the offense that he has committed and he manifested that he realized the same; that he realized the fact and he is aware that he would be penalized in accordance with law; that he is determined to change his life because he wanted to be free, after serving his sentence. However, during the cross examination of the prosecution when he was asked if he helped the other accused, namely: Gerardo Abuhin, Rolando Castillo and George Daeng, in stabbing the victim, Basilio Beltran, he answered in the negative, alleging that he was inside the bartolina in that morning of December 13, 1970, when the victim was stabbed to death, and he only admitted as a participant in the killing of the victim because Boy Coro (a Alfredo Mariano poked him with an improvised weapon; that this Boy Coro according to him was the leader of the Sputnik Gang and he was very powerful because Boy Coro was the one giving orders and they were mere followers; that the statement he allegedly signed was not really his own statement but that of the investigator who forced him to sign the same through force and intimidation and maltreatment, but he did not file any charge against said investigator according because according him he does not know anything about filing charges. With this manifestation of the accused Conrado Bautista, the counsel de oficio moved that the former plea of not guilty of said accused be allowed to remain on record, which was granted by the Court, there being no objection on the part of the prosecution. So also, the defense of the accused Gerardo Abuhin that he was lying down on his cell when he suddenly heard a commotion and he stook up and took his weapon, when he saw many people coming out and he heard someone shouting, "everybody must come out"; that what was stated in his statement was not the real happening, because it was only his gawa-gawa, knowing that Sarmiento and Coro were very powerful in their cell and if he would not follow, something might be done against him; that it was not true that his coaccused Bautista was involved in the stabbing and his conscience would not forgive him to implicate a man who was not really a participant in that riot; that he was not able to add in his statement that Bautista was not guilty because he was not asked about it and it did not occur to his mind to exculpate him in the course of his giving a statement to the investigator; and that it would be against his conscience if he would let Bautista

suffer for anything that he did not commit; that he was intimidated by investigator de las Alas into giving an extrajudicial confession and out of fear he signed the same. We have gone to great lengths in closely scrutinizing the evidence presented in this case, and no amount of deeper probing can convince Us that the trial court committed any reversible error in basing its judgment of conviction "on the testimonies of the prosecution eye witnesses corroborating the statements in the extrajudicial confessions of the accused" (Exh. "C-4"; Exh. "C-5"). An examination of the corroborated sworn statements of accused Rolando Castillo (already sentenced on a plea of guilty, September 15, 1973) Exh. "C-1"; of Prison guard Armando Miranda, Exhibit "C-2"; of accused George Daeng (already sentenced on a plea of guilty, September 1, 1973), Exh. "C-3"; of accused Conrado Bautista, Exh. "C-4" of accused Gerardo Abuhin, Exh. "C-5"; and of prisoner (inmate cadet) Domingo Mallari, Exh. "D", shows that on the morning of December 13, 1970, at around 6:15 A.M., while prison guard Armando Miranda accompanied by Inmate Cadets Basilio Beltran (victim) and Domingo Mallari who carried bread and coffee, were about to give food to the prisoners in "Brigada 8-C" under the stairs of "Brigada 8-A-2", located at New Bilibid Prison, Muntinlupa, Rizal, four prisoners, accused Rolando Castillo, George Daeng, Conrado Bautista, and Gerardo Abuhin, all armed with "matalas" (improvised deadly weapons) suddenly pushed the cell door and rushed out. While one of the four (Rolando Castillo) suddenly pointed his weapon at prison guard Miranda, the other three simultaneously attacked and stabbed inmate cadet Basilio Beltran; that accused Rolando Castillo joined the three others in stabbing the already prostrate victim; and the attack happened so suddenly that it did not take half a minute for the four accused to kill the victim. The other inmate cadet, Domingo Mallari, was able to get away and give the alarm. Witness Domingo Mallari in his sworn statement Exh. "D" was able to identify by their appearance, not by name, the four accused (Castillo, Abuhin, Bautista and Daeng) out of ten prisoners in a line-up, as the prisoners who stabbed the victim. This same witness stated that it was accused Conrado Bautista who first stabbed the victim. We noticed from the sworn statements that they were all taken during the investigation immediately conducted on the very day of the crime, December 13, 1970, except that of prison guard Armando Miranda which was taken on December 15, 1970. The sworn statement (Exh. "C-1") of accused Castillo given before PG Investigator, IS Ignacio J. Ferrer, was taken in the presence of prison guard-investigator Jesus B. Tomagan, Chief Investigator Benedicto R. Planta and Administrative Officer Exequiel A. Santos. The sworn statement (Exh. "C-3") of accused George Daeng given before P.F. Jesus B. Tomagan was taken in the presence of Security Officer B.R. Planta, P.G. Ignacio Ferrer and Administrative Officer Exequiel A. Santos. The sworn statement (Exh. "C-4") of accused Conrado Bautista given before P.G. Jesus B. Tomagan was taken in the presence of Chief Investigator Benedicto R. Planta, Investigator Ignacio Ferrer and Administrative Officer Exequiel A. Santos. The sworn statement (Exh. "C-5") of accused Gerardo Abuhin given before P. G. Abraham de las Alas was taken in the presence of P. G. Ignacio J. Ferrer, P. G. Jesus B. Tomagan and Administrative Officer Exequiel A. Santos. The alleged threat and intimidation used in assailing the voluntariness of the extrajudicial confessions of the four accused, being general in nature, becomes hardly credible in the face of the overwhelming established facts and circumstances, as for instance (1) the judicial plea of guilty of accused Castillo and Daeng (both of whom were already sentenced); (2) the very apparently disinterested and truthful narrations of prison guard Miranda and inmate cadet Mallari who were eye-witnesses to the crime and who positively identified the four accused as the persons who stabbed the victim, there being no other prisoners who at that moment of the crime could have participated in it; (3) the manifestly spontaneous narrations of the circumstances that happened during the crime appearing in the sworn statements that were executed on the very day the crime was committed, when those who participated and who witnessed the crime did not have sufficient time to fabricate evidence and distort the truth; (4) the fact that it would be difficult to presume that those disinterested investigators who were present when the accused gave their sworn statements would subvert the ends of justice and falsify the truth by utilizing force and intimidation on the accused, there being no indication nor evidence that they have a motive or grudge against the accused; (5) and the fact that those officials of the Bureau of Prisons were merely doing their duties in the regular course of official business when they conducted the investigation to shed light on the crime committed. The narration of the crime contained in the sworn statement of prisoner Domingo Mallari (Exh. "D") who was an eyewitness to the crime substantially coincides with his testimony in court in all material aspects and he was able to identify the four accused (Castillo, Abuhin, Daeng, Bautista) when asked to do so during the trial (pp. 7-25 t.s.n. Hearing on August 25, 1973). The four improvised deadly weapons used by the accused in killing the victim were all recovered and identified (pp. 3-8; 14-15, t.s.n. Hearing of September 1,

1973.).1äwphï1.ñët Prison guard Armando Miranda's testimony in court clearly corroborated all his narrations contained in his sworn statement Exh. "C-2", pointing out without doubt that the accused Bautista, Abuhin, Castillo and Daeng were the prisoners who rushed out of their cell and stabbed the victim, Beltran, in the early morning of December 13, 1970 (t.s.n. pp. 2-11, Hearing of April 28, 1973). Accused Abuhin in his testimony in open court admitted that he participated in the killing and stabbed twice, although he said he did so because he was hit and wounded by a knife thrown from above (p. 5 t.s.n. Hearing of November 29, 1973). He declared that he gave his sworn statement, Exh. "C-5", voluntarily Cpp. 6-7 t.s.n. Hearing of November 29, 1973). Accused Bautista admitted in open court that the signature appearing on Exhibit "C-4" (his sworn statement) is his (p. 7 t.s.n. Hearing of December 13, 1973). He claimed that he was maltreated by investigator Ferrer to extract from him the confession contained in his sworn statement. Yet he could not explain why notwithstanding the supposed injuries inflicted on him, he could sign the sworn statement calmly without signs of nervousness or trembling; he was not treated for his supposed injuries, was never hospitalized for them, and never reported the supposed maltreatment to Administrative Officer Exequiel A. Santos whom he treated like a father (pp. 7-9 t.s.n. Hearing of December 13, 1973). Accused Bautista's very weak alibi was that on the morning of December 13, 1970, when the crime was committed he was sleeping in his cell (pp. 9-10 t.s.n. Hearing of December 13, 1973). Witness Antonio Juaningco, another prisoner, tried to substantiate Bautista's alibi by testifying that on the morning of December 13, 1970, accused Bautista was with him sleeping in cell no. 9 and went out because they were awakened by a commotion and then saw the victim Beltran already dead (p. 21 t.s.n. Hearing of December 13, 1973).1äwphï1.ñët Accused Abuhin when recalled to the witness stand did a complete somersault on his previous testimony implicating Bautista when he stated that on that occasion he did not see Bautista (p. 28 t.s.n. Hearing of December 13, 1973). The trial court did not commit any mistake in not giving credit to the alibi of accused Bautista, for aside from its inherent weakness as a defense, unsupported as it is by credible evidence, his alibi cannot stand against the positive identification made by prison guard Miranda, witness Mallari, and the very damaging sworn statements of his co-accused Castillo and Daeng both of whom, by their plea of guilty, had been previously sentenced for the same crime with which Bautista is charged. We consider of little significance the belated testimony of Castillo, after he was convicted and sentenced, that Bautista was not a participant in the crime (pp. 2-6 t.s.n. Hearing of January 21, 1974). We are more inclined to give more credence to his sworn statement (Exh. "C-1") given on the very date of the crime, considering that Castillo had pleaded guilty to the crime of murder and he has nothing more to lose in subsequently repudiating his previous narration of the crime implicating his co-accused Bautista. It is likewise considered of no moment that another witness, prisoner Benito Balagtas, testified that when the crime was committed in the early morning of December 13, 1970, accused Bautista was sleeping in cell no. 13 (p. 4 t.s.n. Hearing of March 8, 1974).1äwphï1.ñët It is very significant that while defense witness Antonio Juaningco testified that on the morning of December 13, 1970, accused Bautista was with him sleeping in cell no. 9, this defense witness Balagtas in turn testified that accused Bautista was sleeping in cell no. 13 on the very same occasion. What a tragedy for the accused and a significant victory for truth that even the very witnesses presented to establish an alibi for accused Bautista contradicted themselves on a very material point. Neither do We give credence to the testimony of witness Ricardo Felix, another prisoner, that on the morning of December 13, 1970, immediately after the killing of victim Beltran, he saw prisoner Daeng, Boy Coro and Rolando Castillo "poking a knife to Bautista" and threatening said Bautista to admit the crime. We consider it an exercise in futility to discuss further the alleged errors committed by the trial court in considering as generic aggravating circumstances the presence of obvious ungratefulness and evident premeditation so as to impose the maximum penalty of death, because Article 160 of the Revised Penal Code succintly provides that "any person who shall commit a felony after having been convicted by final judgment, ..., or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony". In passing, however, it may be stated that the consideration of mitigating and aggravating circumstances is for the purpose of fixing the proper penalty within the minimum, medium or maximum as provided by law, but We have no choice here other than to impose the maximum because by mandate of Article 160 of the Revised Penal Code a person convicted of a crime while serving sentence for a previous crime shall get the maximum of the penalty prescribed by law for the new felony (murder), which is death, without further regard of the effect of mitigating or aggravating circumstance, or the complete absence thereof. The trial court correctly considered the qualifying circumstance of treachery in the commission of the crime of murder. It was conclusively proven that the accused in a sudden, concerted and unprovoked act, all of them

being armed with improvised deadly weapons, stabbed the victim to death after pushing their cell door open, threatening and throwing off-guard Miranda when the victim who was holding in both hands the bread and coffee intended for the breakfast of the assailants was not in a position to defend himself from the unexpected assault. As to the existence of evident premeditation, it was established by the following circumstances: (1) the sudden concerted attack, perpetrated and calculated to throw off guard the intended victim as he was in the act of giving food to the assailants, which attack necessarily must have been planned; (2) that all of the accused were armed with improvised deadly weapons which they were not supposed to possess and which they must have secretly prepared for a long time for committing the crime; and (3) the admission on the part of the accused in their sworn statements that they killed the victim by "attacking first" because they had heard that the members of the rival gang would liquidate them, leading to the conclusion that the accused must have planned how to counteract the supposed attack of the rival gang by literally beating the latter to the draw. The aggravating circumstance of obvious ungratefulness was present as the victim was suddenly attacked while in the act of giving the assailants their bread and coffee for breakfast. Instead of being grateful to the victim, at least by doing him no harm, they took advantage of his helplessness when his two arms were used for carrying their food, thus preventing him from defending himself from the sudden attack. IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, the requirements of moral certainty in the evaluation of evidence have been more than adequately met. We have no other alternative than to affirm the penalty of death imposed by the trial court, and all other parts of the judgment. Costs against the accused. SO ORDERED. SECOND DIVISION [G.R. No. 131117. June 15, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. NELSON CARIÑO, DOMINGO BANHAON, LUIS CORCOLON, ROGELIO “BOY” CORCOLON, JOSELITO “LITO” CALONG-CALONG and “BOY PANSIT,” accused, DOMINGO BANHAON, LUIS CORCOLON, ROGELIO “BOY” CORCOLON, and JOSELITO “LITO” CALONGCALONG, appellants. DECISION CALLEJO, SR., J.: Before the Court is the appeal of the Decision[1] of the Regional Trial Court of Pasig City, Branch 160, in Criminal Case No. 107788-H, finding the appellants guilty beyond reasonable doubt of murder, qualified by treachery, sentencing all of them to suffer the penalty of reclusion perpetua and ordering them to indemnify, jointly and severally, the heirs of the deceased Ruben A. Velecina in the amount of P50,000; and to pay the said heirs P20,000 as moral damages; and, P10,000 as exemplary damages. On March 3, 1994, accused Nelson Cariño, “Boy Pansit,” appellants Domingo Banhaon, Luis Corcolon, Rogelio “Boy” Corcolon and Lito Calong-Calong were charged with murder in the Regional Trial Court of Calamba, Laguna, originally docketed as Criminal Case No. 3953-94-C. On March 2, 1998, the Court resolved to transfer the case to the Regional Trial Court ofPasig City. The case was re-docketed and raffled to Branch 160 thereof. The accusatory portion of the information reads as follows: That on or about July 30, 1989 at Barangay Bayog, Los Baños, Laguna and within the jurisdiction of this Honorable Court, the above-named accused conspiring and confederating together and mutually helping each other and with treachery, abuse of superior strength and with the aid of armed men, did then and there wilfully, unlawfully and feloniously with intent to kill, attack, assault and EMPLOY violence upon the person of Ruben Velecina by then and there shooting him with powerful firearms thereby inflicting upon him serious and mortal injuries in the different parts of his body which directly caused his death to the damage and prejudice of his surviving heirs.[2] Except for Nelson Cariño and “Boy Pansit” who remained at large, the rest of the accused were arrested. When arraigned, the accused, assisted by counsel, entered their respective plea of not guilty. The Case for the Prosecution Leopoldo Cariño and his brother, Nelson Cariño, Luis Corcolon, Rogelio (Boy) Corcolon, Lito Calong-Calong, Domingo Banhaon, “Boy Pansit” and Norberto Ongjuatco were bodyguards of Mayor Antonio Sanchez of Calauan, Laguna. Leopoldo was gunned down by an unknown assailant, and Mayor Sanchez suspected that the following persons were involved in the killing: Ruben Velecina; his mother, Atanacia Velecina; his brother

who was a tricycle driver, Valentin Velecina; Bernardo Velecina; and Recto Aniceto, all residents of Los Baños, Laguna. Nelson Cariño was reported to have killed Bernardo Velecina, while Recto Aniceto was reportedly shot by the group of Lito Calong-Calong. Norberto Ongjuatco, one of the bodyguards of Mayor Sanchez, secretly warned Valentin to be careful. When apprised of the impending peril to their lives, Valentin, Ruben and their mother, Atanacia, were afraid that they would be killed next on orders of Mayor Sanchez. Isidro Velecina and Dory Perez were to be wed on July 30, 1989. A pre-nuptial party was set in the evening of July 29, 1989, to be held in the yard of the Perez residence at Barangay Bayog, Los Baños, Laguna. Roger Perez, Dory’s father, invited his friends, and among them was Edwin Botero, a former soldier in the Philippine Army and a security guard EMPLOYED at the Philippine Long Distance Company. Ruben Velecina, Isidro’s father, also invited guests of his own. Ruben’s brother, Valentin, arrived at the house with his family at about 7:00p.m. His wife, Ofelia, his mother, Atanacia, and his son Rowel were with him. Valentin, Edwin and other guests had a drinking spree in front of the house where the other guests were dancing and singing. The house was made of bamboo and wood. Between 12:30 and 1:00 a.m., July 30, 1989, Edwin noticed a white Ford Fiera with plate number 777 stop in front of the alley leading to Roger’s house, about twenty (20) meters from where he and his friends were drinking Tanduay. The Fiera was followed by a tricycle and a galvanized owner-type jeep driven by “Boy Pansit.” Edwin saw that Mayor Sanchez was inside the Fiera, along with two others who were seated at the backseat; beside “Boy Pansit” was Lito Corcolon. The latter alighted from the jeepney, approached Edwin and asked him if Ruben and Roger, the fathers of the persons to be wed, were inside the house. Edwin replied in the affirmative.[3] Thereafter, Lito Corcolon returned to the Ford Fiera and whispered something to Mayor Sanchez.[4] The Ford Fiera then drove away. Lito Corcolon, Rogelio Corcolon, Nelson Cariño, “Boy Pansit,” Lito Calong-Calong and Domingo Banhaon then alighted from the jeepney and entered the alley leading to the Perez residence. They posted themselves near the kitchen. When Valentin Velecina saw Mayor Sanchez’ men arrive, he posted himself in a dark place near the chicken coop, about seven (7) meters from the western side of the house. Valentin could see the kitchen from where he was. He could also see the bodyguards of Mayor Sanchez, all of whom were armed with short handguns. Momentarily, Carlos Medel, Valentin’s cousin arrived near the chicken coop to urinate. When he saw Carlos, Valentin pulled his leg and told him to go to the kitchen to tell his brother, Ruben, and his mother, Atanacia, that the bodyguards of Mayor Sanchez were in the vicinity. Carlos obliged and left. Meanwhile, Ruben went to the comfort room which was near the kitchen sink and was covered by bamboo slits. As he emerged from the comfort room, Nelson Cariño, Lito Calong-Calong, Rogelio and Lito Corcolon aimed their guns at the kitchen and fired successively. “Boy Pansit” and Domingo Banhaon pulled out their guns and acted as lookouts. People hurriedly scampered away when they heard the gunfire. There were shouts of: “May patay, may patay!” Momentarily, Nelson Cariño told his companions: “Tayo na, yari na iyan.” The six bodyguards of Mayor Sanchez then left the scene and boarded the jeepney. Edwin and Valentin heard two more gunshots coming from the direction of the jeep, after which the vehicle sped away. Meanwhile, Valentin remained behind the chicken coop until he felt that it was safe for him to come out. Momentarily, he heard his brother, Ruben, cry out, “Ate Uping, may tama ako.”[5] Valentin rushed to the kitchen and saw Ruben lying on the floor, mortally wounded. Isidro Velecina and Roger Perez reported the incident to the police. Policemen, including Wilfredo Palacpac and Oscar Ampao, rushed to the scene,[6] and saw the cadaver of Ruben lying on the ground, face down. The policemen recovered five empty shells fired from a .45 caliber gun, as well as slugs which were embedded on the cement walls of the house. In the course of the policemen’s on-the-spot investigation, no one ventured to identify the perpetrators. The shooting incident was recorded in the police blotter. Dr. Ruben B. Escueta, the Rural Health Physician of Calauan, Laguna, conducted an autopsy on the cadaver of Ruben Velecina and submitted a report of his findings, viz: NECROPSY FINDING General Survey Well develop (sic), well nourish (sic), male, white complexion measuring 165 cms. and weighing about 130 lbs. Wearing checkered and white and black brief and bearing gun shot (sic) wounds on different parts of the body. REGIONAL EXAMINATION

Head – No Injury Face – No Injury Neck and Nape – No Injury Chest 1). Through and through gun shot (sic) wound on the left lateral side of the chest to the right lateral side. The point of entrance is located between the 5th and 6th ribs. Its entrance measure 1 cm. in length and 1 cm. in width. The point of exit is located between the 9th and 10th rib on the right lateral side of the chest, measuring 2 cms. in length and 1.5 cms. in width. Back 2) Through and through gun shot (sic) wound on the right side of the back. Through the left side. The point of entrance located between 4th and 5th ribs medial portion measuring 1 cm. in width. The point of exit is located at the lateral side of the chest between the 9th and 10th ribs measuring 2 cms. in length and 1.5 cms. in width. 3) Through and through gun shot (sic) wound on the right flank wound between the 2nd and 3rd lumbar vertebrae through posterior portion of the chest between the 9th and 10th ribs left side of the chest. The point of entrance is located between the 2nd and 3rd lumbar vertebrae measuring 1 cm. in length and 1 cm. in width. The point of exit is located between the 9th and 10th ribs, lateral side of the chest. Measuring 2.5 cms. in length and 1.5 cms. in width. 4) Through and through gun shot (sic) wound on the left lumbar area. Located at the level of 6th vertebrae, through left waist line (sic). The point of entrance is located at the level of 6th lumbar vertebrae. Measuring 1 cm. in length and 1 cm. in width. The point of exit is located at the left waistline. Measuring 2.5 cms. in length and 1.5 cms. in width. EXTREMITIES Upper extremities Right – 5) Through and through gun shot (sic) wound on the right shoulder through the left lateral side of the chest. The point of entrance is located on the tip of the right shoulder measuring 1 cm. in length and 1 cm. in width. The point of exit is located on the left lateral side of the chest between the 5th and 6th ribs. 6) Left upper extremity – Gun shot (sic) wound on the medial portion of the left forearm. The point of entrance is located on the lateral medial portion of left forearm measuring 1 cm. in length and 1 cm. in width. The bullet lodge (sic) on the medial portion of the humerous (sic). Lower Extremity Right Lower Extremity – No Injury Left Lower extremity Through and through gun shot (sic) wound on the medial portion of left thigh. The point of entrance is lateral medial portion of left thigh measuring 1 cm. in length and 1 cm. in width. The point of exit is located on the inner medial portion of the left thigh. Measuring 2.5 cms. in length and 1.5 cms. in width. AUTOPSY FINDING Head Cranial vault – No injury Brain tissue – pale in appearance with collapsed blood vessel Chest Bonythorax – Fracture on the medial portion of 10th rib left side of the chest. -through and through gun shot (sic) on the left upper lobe of the lungs Right lungs – congested Heart – laceration of the paracardiac soc (sic). laceration of the posterior portion of the ventricle. laceration of the coronary blood vessel. Abdominal Cavity – laceration of peretonial (sic) covering of the abdomen. laceration of anterior lobe of the liver. Laceration of the rectus muscle on the muscle on the right side of the abdomen Extremities – upper right extremity

laceration of the deltoid muscle blood vessel on the right shoulder REMARKS: About 2 liters of blood were obtain (sic) from the thoracic cavity. CAUSE OF DEATH: Massive Intra Thoracic Hemorrhage due to Gun Shot (sic) Wounds.[7] In the meantime, Atanacia advised her son Valentin to hide, as he might be killed next. Valentin heeded his mother’s advice and hid in San Pablo City. He sought the help of the Ombudsman and the Criminal Investigation Service (CIS) of the Philippine National Police, but was told to seek the help of the New People’s Army in Quezon. He reported the shooting to NBI Director Antonio Carpio, who referred him to the police authorities in Batangas. When he went to the police authorities in Batangas and revealed the identity of his brother’s assassins, he was told: “Bumangga ka pala sa pader, magpahinog ka.” Nonetheless, on March 15, 1991, Valentin sought the help of the President of the Philippines and gave a sworn statement to Norberto Galang at the Kalayaan Hall, Malacañang,Manila. [8] Edwin Botero was, however, afraid to reveal the identities of the culprits to the police authorities and that he witnessed the killing. On August 13, 1993, Mayor Antonio Sanchez was arrested for rape with homicide. His bodyguards, the Corcolon Brothers Luis and Rogelio, had earlier surrendered to the Criminal Investigation Service for the same crime.[9] Barely three (3) days after Mayor Sanchez’ arrest, Edwin Botero gave his sworn statement to the Anti-Organized Crime Division of the NBI.[10]He applied for and was granted protection under the Witness Protection Program of the Department of Justice. The Case for the Appellants Appellant Rogelio “Boy” Corcolon denied the charge against him and offered alibi as his defense. While admitting that he knew Mayor Antonio Sanchez,[11] he denied that he had ever been in the latter’s EMPLOY . He claimed that he worked as a company guard of San Miguel Corporation.[12] He related that at or about 1:00 a.m. of July 30, 1989, he was in his residence at Barangay Mabacan, Calauan, Laguna, approximately thirty minutes away from Barangay Bayog.[13] He stated that he knew accused Cariño as “Bodoy,” but denied being with the latter on July 30, 1989. He, likewise, disclaimed knowing appellant Calong-Calong and explained that he only met him in the courtroom. He denied knowing Edwin Botero, saying that he met the latter only at the NBI. He also stated that he did not know much about Ruben Velecina and “Boy Pansit.” For his part, Luis Corcolon claimed that at the time the incident occurred, he was a resident of Barangay Masaya. He denied knowing the victim, Ruben Velecina, but admitted that he used to see Valentin Velecina in the cockpit. He had heard of the name Nelson Cariño, but denied knowing the appellant Domingo Banhaon. He only got to meet “Boy Pansit” and Lito Calong-Calong in court.[14] He, likewise, denied that he was, at any time, in the EMPLOY of Mayor Sanchez, and claimed that he knew the latter only because he was the Mayor of Calauan.[15] Domingo Banhaon, on the other hand, claimed that in the afternoon of July 29, 1989, he was in their residence at Barangay San Isidro, Calauan, Laguna, with the newly-eloped couple Alfredo and Lorenza Alcantara.[16] As a friend and cousin of Alfredo, appellant Banhaon and his wife helped the Alcantara couple in preparing for their marriage. Appellant Banhaon fetched Barangay Captain Alberto Oroga of Barangay Lanot, and the latter accompanied them and the Alcantara couple to Alfredo’s parents, who were residing in Barangay Talang Uno, Lumban, Laguna where Alfredo’s parents resided. They left Calauan at 6:00 p.m. and reached Lumban at 8:00 p.m.[17] The Banhaons helped the Alcantara couple explain their situation to Alfredo’s parents. The talk ended at around 10:00 p.m., prompting the Banhaons to spend the night at the Alcantara residence. They left Lumban for Calauan at 5:00 a.m. of July 30, 1989. Upon reaching their house, Domingo Banhaon learned of Ruben Velecina’s death. He then attended the victim’s wake, as the latter also happened to live in the same barangay.[18]He admitted that he knew the Velecina family, having worked for them as helper. Appellant Banhaon also claimed that Valentin Velecina, the victim’s brother, knew him to have provided photography services to Mayor Sanchez. Valentin approached him, and asked him to testify and implicate the Mayor in the killing of Ruben. Appellant Banhaon also claimed that Valentin threatened to implicate him in the murder of Ruben if he refused. As he did not know anything about the circumstances of Ruben’s death, appellant Banhaon refused to testify against Mayor Sanchez. Hence, Valentin Velecina implicated him in the killing. Appellant Banhaon presented Lorenza Alcantara as witness to corroborate his testimony. [19] Appellant Joselito Calong-Calong, for his part, denied any participation in the killing. He claimed that he was never EMPLOYED by Mayor Sanchez, but that he worked as a truck helper at the Pepsi Bottling Company from 1976 to 1991, and then transferred to the Cosmos Bottling Company in 1992 until he was arrested. He

said that he came to know Rogelio and Luis Corcolon only during the arraignment of the case. [20] He also claimed that on July 29, 1989, he arrived from work at 7:00 p.m. and stayed at home with his wife and children. He went to church the next day. On his way home, as he passed by the house of Dominador Banhaon, he learned of the death of Ruben Velecina, who lived only about “twelve (12) Meralco posts away” from him. He countered that Valentin Velecina approached him to testify in the killing of Ruben. When he refused, Valentin got mad and threatened him, “Para kang hindi kanayon, kapag ako’y nainis sa ‘yo, isasama kita.”[21] On September 30, 1996, the trial court promulgated its decision finding the appellants guilty beyond reasonable doubt of murder. The dispositive portion of the decision reads: WHEREFORE, foregoing considered, the Court finds accused LUIS CORCOLON, ROGELIO “BOY” CORCOLON, LITO CALONG-CALONG, and DOMINGO BANHAON, GUILTY, beyond reasonable doubt of the crime of Murder under Article 248 of the Revised Penal Code, qualified by treachery and there being no mitigating or aggravating circumstances present in the commission of the crime, hereby sentences, said accused to suffer a penalty of reclusion perpetua, and the accused jointly and severally to indemnify the heirs of the deceased in the amount of P50,000.00, to pay moral damages of P20,000.00, exemplary damages of P10,000.00 and to pay the costs.[22] The trial court declared that the prosecution was able to prove and establish the crime charged and that the appellants were guilty thereof. It found Edwin Botero and Valentin Velecina’s positive identification of the victim’s assailants credible and entitled to full probative weight, as against the denial and alibi of the appellants. It held that the initial reluctance of the aforesaid witnesses to testify against the appellants did not militate nor diminish their credibility, especially considering the perilous situation they were in. Further, Valentin Velecina had no reason to implicate his barriomates, appellants Banhaon and Calong-Calong. The court found that the appellants conspired with one another in killing the victim, and that they committed the crime with treachery and abuse of superior strength. The Present Appeal The appellants now come to this Court to appeal the trial court’s decision. The appellant Calong-Calong assails the decision of the trial court contending as follows: THAT THE HONORABLE COURT A QUO COMMITTED SERIOUS ERRORS IN LAW AND/OR MISAPPREHENSION OF FACTS WHEN IT FOUND THE ACCUSED-APPELLANT JOSELITO CALONG-CALONG GUILTY OF THE CRIME OF MURDER DESPITE THE PRESENCE OF REASONABLE DOUBT AND/OR INSUFFICIENCY OF EVIDENCE AS AGAINST HIM THE ALLEGED PRESENCE OF CONSPIRACY NOT HAVING BEEN DULY PROVEN BY THE PROSECUTION’S EVIDENCE … [23] Appellant Calong-Calong asserts that the trial court committed serious errors in law when it found him guilty beyond reasonable doubt of murder, considering that the evidence presented against him was insufficient, especially as witnesses Edwin Botero and Valentin Velecina failed to identify him. He stressed that witness Valentin Velecina was ill-motivated in implicating him in the murder charge. He furthered that only one kind of weapon caused the wounds that led to the death of Ruben Velecina.[24] The appellants, Corcolon Brothers, for their part, contend that: THE REGIONAL TRIAL COURT IN PASIG CITY (BRANCH 160) HAS ERRED IN NOT ABSOLVING AND FREEING ACCUSED-APPELLANTS LUIS CORCOLON AND ROGELIO CORCOLON OF THE SERIOUS CRIME OF MURDER DUE TO THE PRESENCE OF REASONABLE DOUBT IN THEIR FAVOR. They point out that the RTC erred in finding them guilty beyond reasonable doubt of the crime of murder, when the prosecution was not able to prove that they were involved in the aforesaid crime. The appellant Banhaon, on the other hand, argues that he should be acquitted of the crime charged: THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT DOMINGO BANHAON GUILTY OF MURDER DESPITE THE INSUFFICIENCY OF THE PROSECUTION EVIDENCE THAT WOULD WARRANT A CONVICTION BEYOND REASONABLE DOUBT.[25] Appellant Banhaon contends that the trial court erred in not considering his defense. He emphasized that his innocence is buttressed by his voluntary surrender and the decision to remain in jail despite an opportunity to escape during a jail break.[26] On the other hand, the OSG avers that the prosecution established the crime with clear and convincing evidence through the testimony of witnesses Edwin Botero and Valentin Velecina. The OSG contends that, in light of the prosecution witnesses’ testimonies, the denial and alibi of the appellants cannot prevail. The prosecution, likewise, proved that the appellants, in conspiring with one another and with the use of treachery and abuse of superior strength, willfully and unlawfully, killed Ruben Velecina.

The Ruling of the Court The threshold issue is whether or not the trial court erred in giving credence and probative weight to the testimonies of the prosecution witnesses while disbelieving those of the appellants. Well-settled is the rule that the findings of a trial court on the credibility of witnesses deserve great weight, as the trial judge has a clear advantage over the appellate magistrate in appreciating testimonial evidence. The trial judge is in the best position to assess the credibility of the witness as he had the unique opportunity to observe the witness firsthand and note his demeanor, conduct and attitude under grueling examination. Absent any showing that the trial court’s calibration of credibility was flawed, we are bound by its assessment.[27] Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath – all of which are useful aid for an accurate determination of a witness’ honesty and sincerity. The trial court’s findings are accorded finality, unless there appears in the record some fact or circumstance of weight which the lower court may have overlooked, misunderstood or misappreciated, and which, if properly considered, would alter the result of the case.[28] We have reviewed the records and we find no justification to deviate from the findings of the trial court. The denial of the appellants of the crime charged cannot prevail over the positive declarations of prosecution witnesses Edwin Botero and Valentin Velecina. 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 appellants were at the scene of the incident and were among the victim’s assailants. [29] Positive identification where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter prevails over a denial which, if not substantiated by clear and convincing evidence is negative and self-serving evidence undeserving of weight in law.[30] In this case, Valentin Velecina testified that at a distance of seven (7) meters or so, and while he was hiding in a nearby chicken coop, he saw the accused Nelson Cariño, appellants Luis Corcolon, Rogelio Corcolon and Lito Calong-Calong fire their guns towards the kitchen sink, as Ruben Velecina emerged from the comfort room, while Domingo Banhaon and “Boy Pansit” acted as lookouts. When Luis Corcolon and his cohorts stopped firing, he heard his brother say, “Ate Uping, may tama ako.” Immediately after the assailants left, he entered the house and saw his brother’s body slumped on the ground, soaked in his own blood.[31] The testimony of Velecina is quoted, viz: Q: While you were at the back of the house of Dory Perez, what transpired next? A: At about 10:30 in the evening when I noticed that several persons arrived coming from the back portion of the house and not infront of the house. Q: You are referring to what date, Mr. Witness? ATTY. PIO: Already answered your Honor. COURT: Witness may answer. A: July 29. FISCAL: Q: Now, you said that there were several persons who arrived, who were these persons? A: The six (6) persons I have mentioned earlier.[32] … Q: Upon arrival at the said place, what did they do there? A: When I saw them at that time they just stood near the house and positioned themselves. Q: Mr. Witness, how far were you from these persons when you saw them? A: More or less as far as that window .… INTERPRETER: Measuring a distance of eight meters. FISCAL: Q: How long did they stay on the said place? A: More or less as I could estimate about one half hour. Q: How about you, where were you at that time? A: I was just standing at that time which was not well lighted. Q: Why were you so certain that those persons whom you saw were the same persons? A: Because on the place where they entered there was a flourescent light lighted. INTERPRETER: Witness pointing to the long flourescent tube. FISCAL:

Q: By the way Mr. Witness, you have earlier pointed to this Honorable Court the persons of Rogelio Corcolon and Luis Corcolon, how about the other persons you saw at Dory’s residence, please look around? A: They are not around. Q: After thirty minutes (30) of staying there what happen (sic) next? A: Before the lapse of thirty minutes somebody approach me. Q: Who was that person who approached you? A: Carlos Medel asked permission if he could urinate. Q: When he approached you, what did he do? A: I whisper[ed] to him to go inside and tell not to go out for the henchmen of Mayor Sanchez was here. Q: What was the reaction of Carlos Medel, whom you instructed to go inside? A: He entered the house and told me that they would inform. Q: So, you were left outside? A: Yes, Sir. Q: What did you do when you were left behind? A: I cover[ed] myself by trying to get near them so that I could identify them. Q: What did you do next to these fellows whom you earlier named? A: After a while I saw them pulling out short firearms and I saw them aiming their guns on the persons on the side and then bursts of gunshots near a wall, it was just a wall with bamboo on top of it. Q: Would you kindly specify those persons whom you said were carrying firearms? A: The six of them but only four aimed their firearms. Q: Do you know the caliber of firearms they were carrying at that time? A: I could not remember if 45 or 38. Q: You earlier stated “PUMUTOK” towards what direction were the firings directed? A: Inside. Q: Inside what? A: Inside the house. Q: What happened after that? A: When they were firing their guns, the people scampered away. Q: How about you, where were you at that time? A: I stayed in my place and watch. Q: How long did the firing last? A: I could not remember for how long but only for a short while. Q: After that firing, what transpired next? A: I heard my brother Ruben shouting “ATE UPING MAY TAMA AKO.” Q: Upon hearing this remark of your brother, what did you do? A: I still stay there and I did not get away till those persons left. Q: Towards what direction were those people who shoot your brother proceeded? A: Towards the place where they entered.[33] … FISCAL: Q: Mr. Witness, when the person whom you earlier named aimed or fired their firearms towards the direction of Dory’s residence, where were you at that time? A: I was at a dark place near the chicken coop. Q: When did you come out of the place where you were hiding? A: After the gunshot and Nelson Cariño uttered “TAYO NA YARI NA YAN.” … Q: After the group left the place, what followed next? A: After they have left in a few seconds, I heard two gunshots, they fired twice when they were at the road when I heard before the time they sped away, that is the time I entered inside. Q: When you entered your brother? A: Yes, Sir. Q: Do you recall if your brother was armed at that time? A: None, Sir. Q: You earlier stated Mr. Witness that there were four among those persons whom you earlier named who fired their guns?

A: Yes, Sir. Q: Who are they? A: Nelson Cariño, Luis Corcolon, Lito Calong-Calong, Rogelio Corcolon and the other two have guns but they seem to be look out. Q: Who were those two that you are referring to Mr. Witness? A: Domingo Banhaon and Boy Pansit. Q: Mr. Witness, will you kindly tell again the Honorable Court those persons, the six persons whom you earlier mentioned were here? A: Only three. Q: Who? A: Luis Corcolon the one with fan. INTERPRETER: Witness pointed to Luis Corcolon. A: Rogelio Corcolon. INTEPRETER: Witness pointed to Rogelio Corcolon, one of the accused in this case. [34] Edwin Botero corroborated the testimony of Valentin Velecina. He testified that he saw Luis Corcolon, Rogelio Corcolon, “Boy Pansit” and two others go inside the alley leading to the back of the Perez residence. After thirty minutes, he heard shots coming from the direction of the said house. As people scampered in panic, he saw the appellants Luis Corcolon, Rogelio Corcolon and Boy Pansit come out of the alley with handguns on display. They fired shots in the air and then sped away in the jeep. FISCAL: Q: When this owner-type jeep passed by your place where you were drinking, what did Luis Corcolon do if any, if you remember? A: When the jeep pass by, Luis Corcolon alighted from the jeep and he asked something from us. He asked us why we are drinking in that place and I told him I was invited by Mang Roger. Q: Are you referring to Mang Roger? A: Roger Perez. Q: Aside from asking you why you were drinking in that place, what did he asked you if any? A: He asked me that question, he asked me if the father of the person to be wed was there. Q: What was your answer? A: I told him he was inside. Q: Do you remember if he mention any name? A: None Sir, he just asked me if the father of the person to be wed is there. Q: What was your actual answer to the question? A: I told him Roger Perez and Ruben Velecina were there. Q: Let’s go back to the Ford Fiera, you said it pass by you, where does it go if any? A: When the Ford Fiera pass by our place it stop in a distance and the owner-type jeep proceeded and Luis Corcolon just walk by. Q: What about the tricycle with the three persons riding on its where did they go? A: It parked near the Ford Fiera. Q: Now far more or less from you from the place where you were drinking did the Ford Fiera parked? A: About fifty (50) meters. INTERPRETER: Witness pointing a distance up to the tree outside in the other side of the road. FISCAL: Twenty meters? ATTY. PIO: Thirty five meters. … FISCAL: Q: Now, let’s go back to Corcolon, would you remember what was he wearing at that time? … FISCAL: Luis Corcolon. A: Black jacket. Q: What about the other persons the passenger of the jeep or the Ford Fiera? A: No, Sir. I could not remember. Q: You said that Luis Corcolon just walk to the place where the Ford Fiera was parked what happened after that?

A: The Ford Fiera moves forward and stop at the rear of the tricycle, he turned around and whisper something to Mayor Sanchez. Q: Now, you had been mentioning the accused Luis Corcolon and Rogelio Corcolon, could you tell us why you know them personally? A: I was formerly a soldier and we trained CAFGU and the other CAFGU has been taken by Mayor Sanchez as body guard and I was assigned at Dayap in Calauan, Laguna. Q: When was this tour of duty of yours in Calauan, Laguna? A: 1990. COURT: Were you one of the body guards of Mayor Sanchez which was assigned to him? A: No, Your Honor. FISCAL: Q: Now, the question that was paused to you, why you personally know Luis Corcolon and Rogelio Corcolon, now your answer was that you were assigned at Dayap and that Mayor Sanchez got one half of the CAFGU, how did you come to meet them? A: I have been going to the house of Mayor Sanchez I saw them there as trainees of CAFGU. Q: What about the two accused Luis and Rogelio Corcolon, were they also trainee? A: No, Sir. Q: Would you know a person by the name of Lito Calong-Calong? A: No, Sir. Q: Let’s go back to that point when you saw Luis Corcolon whispering to Mayor Sanchez what happen after that? A: After that, that they have whispered to each other the Ford Fiera left and they entered the alley. Q: You said “PUMASOK SILA” who was this? A: All of them, Luis Corcolon, Boy Corcolon and Boy Pansit, I do not know the others. Q: Now, more or less, how many persons entered that alley together with Boy Pansit and the two Corcolon? A: There were six (6) of them. Q: That alley was leading to what direction? A: At the back of Mang Roger. Q: After you saw them entered the alley, what did you and your group do if any? A: We continue drinking. Q: After a while, what happened if any? A: More or less 30 minutes I heard gunshots. Q: After you heard gunshots, what else happen if any? A: During the gunshot people panic, we were separated, the people were going out. Q: Now, you said you heard gunshots, during your lifetime with the Armed Forces, do you have training of firing guns? A: Yes, Sir. Q: So, when you heard gunshots that evening, where do you think, from what direction were those gunshots came from? A: It came from the back of the house of Roger Perez where they entered through. Q: Now, you said that you heard the shooting there were people scampering, what else did you see aside from those people coming out, who else did you see if any? A: I heard from the people running “MAY PATAY, MAY PATAY.” Q: What about Luis Corcolon, Rogelio Corcolon and Boy Pansit and the other group, did you see them again after the series of gunshots? A: They all came out and boarded the Ford Fiera and owner-type jeep and the tricycle. Q: You said that the group of Boy Pansit, Rogelio Corcolon went back to the tricycle and the owner-type jeep, what were they carrying at that time? ATTY. PIO: Objection, Your Honor. COURT: Objection sustained. FISCAL: Q: What did you observe when they went back to the owner-type jeep and the tricycle? A: After they boarded and they fired shots upward.

Q: How many gunshots while in the jeep? A: Two shots while in the jeep. Q: Would you know what kind of firearm was fired while they were in the jeep? A: I do not know, it was just a short gun that I saw. COURT: Q: When you said you saw a short gun, where did you see this handgun and at what time? A: More or less 1:00 o’clock. Q: Where were they when you see them with the handgun? A: At the place of the incident at Mang Roger’s place. Q: After you heard two gunshots while this group of Boy Corcolon, what else happened? A: They left afterwards and later a tricycle come and I went home. [35] The failure of Edwin Botero and Valentin Velecina to report the crime immediately after the commission thereof did not diminish their credibility. It should be remembered that different people react differently to an unusual event.[36] There is no standard behavior when confronted with a strange, startling or frightful occurrence. Fear has been known to render people immobile and helpless particularly in life and death situations. Any person faced with such an overwhelming situation would sufficiently be cowed by fear or at least compelled to act in a manner aimed at self-preservation.[37] Witnesses may keep silent for a time rather than risk their lives. As we ruled in People v. Rimorin:[38] That Osoteo’s fear of Rillon constrained him for ten years from revealing the crime and identifying the perpetrators to the authorities is understandable. The delay should not in any way taint his credibility. It should in fact foster credence in his revelation, considering that after ten years he did not have to come out to testify if there was no grain of truth in it. The initial reluctance of witnesses Edwin Botero and Valentin Velecina to testify against the accused and the appellants had been satisfactorily explained. Valentin Velecina testified that he was not able to report the incident for fear that he would be the next target of the assailants who were bodyguards of Mayor Antonio Sanchez of Calauan, Laguna, especially considering that two of his relatives had been killed and that he had received death threats. Q: Mr. Witness, prior to the death of your brother Ruben Velecina, your nephew by the name Bernardo Velecina was killed, and after that your cousin by the name of Recto Aniceta was also killed and you suspected a certain Ruben Cariño as the one who killed these two persons, is that correct? A: Yes, Sir. Q: And you believe the reason why Nelson Cariño killed Ruben Velecina was because of the death of Leopoldo Cariño, is that correct? A: Yes, Sir. Q: And your family was suspected behind the killing of Leopoldo Cariño? A: Yes, Sir. Q: And this is the reason why up to now you are still in hiding for you believe that Nelson Cariño would like to kill you? A: Yes, Sir.[39] Edwin Botero testified that it was only on August 16, 1993 that he came out because he was afraid that he would be killed by the accused and the appellants if he testified. Upon seeing his kababayan, Atty. Sacaguing of the NBI, on television regarding the Aileen Sarmenta case, he decided to testify on the victim’s behalf. FISCAL: Q: Now, Mr. Witness, it appears in your statement that the date when you executed this is August 16, 1993 before the Office of Head Sergeant Artemio Sacaguing, please explain to this Court why you only executed this affidavit on August 16, 1993 when the incident happened on July 30, 1989? A: The reason why I did not come out because I am afraid I could not present myself as witness. Q: What could be the reason why you eventually change (sic) your mind and executed this affidavit? A: I saw Atty. Sacaguing in the (sic) T.V. and my townmate with the NBI. I voluntarily went to him to give justice to the Velecina case. Q: What was the topic of the TV program that inspired you to come out? A: About Mayor Sanchez and Kit Alquesa was inflicted (sic) with the Aileen Sarmenta case.[40] By then, Mayor Sanchez and his bodyguards, the appellants Luis Corcolon and Rogelio Corcolon had been placed in the custody of police authorities. Edwin Botero was so afraid for his life that he applied for and was granted protection under the Witness Protection Program of the Department of Justice.

Neither did Valentin Velecina’s relationship with Ruben Velecina render his testimony biased. Relationship, by itself, does not give rise to any presumption of bias or ulterior motive, nor does it impair the credibility of witnesses or tarnish their testimonies. The relationship of a witness to the victim would even make his testimony more credible, it being unnatural for a relative who is interested in vindicating the crime charged and prosecute another person other than the real culprit.[41] Relatives of victims of crimes have a natural knack for remembering the faces of the assailants more than anybody else, and would be concerned with obtaining justice for the victim by having the felon brought to justice and meted the proper penalty.[42] In the absence of any improper motive on the part of the witness, his relationship to the victim cannot impair the weight of his testimony.[43] We agree with the ruling of the trial court that the appellants conspired to kill Ruben. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.[44] It need not be established by direct evidence. It may be inferred from the acts of the accused before, during or after the commission of the crime which, when taken together, would be enough to reveal a community of criminal design.[45] Proof of previous engagement among the malefactors to commit the crime would be unnecessary to establish conspiracy when by their overt acts it would be deduced that they conducted themselves in concert with one another.[46] As gleaned from the records, the following chain of events show that there was community of design among the appellants: (1) the appellants, although in separate vehicles, arrived at the scene of the crime together at approximately 12:30 a.m. on July 30, 1989; (2) accused Nelson Cariño and appellants Corcolon Brothers and Lito Calong-Calong fired shots on the wall where Ruben Velecina was taking refuge, while appellant Domingo Banhaon and “Boy Pansit” stood guard; (3) the group of Luis Corcolon stopped firing on the wall only when accused Nelson Cariño assured them that the victim was dead, uttering “Tayo na yari na yan;” and, (4) the group left together after shooting the wall. In People v. Delim,[47] we held that lookouts are criminally liable as principal, by direct participation. The killing was qualified by treachery. There is treachery when the offender commits any of the crimes against persons, EMPLOYING means or methods in the execution thereof which tend directly and specifically to insure its execution, without risk to the offender, arising from the defense which the offended party might make.[48] The essence of treachery is that the attack is deliberate and without warning, done in swift and unexpected manner of execution, affording the hapless and unsuspecting victim no chance to resist or escape.[49] In the case at bar, the victim was inside the Perez residence and was busy preparing for the wedding of his son, Isidro Velecina, to Dory Perez, the daughter of Roger Perez. The victim was unarmed and was deprived of any means to defend himself, or to evade the sudden and unexpected assault. The autopsy conducted by Dr. Ruben Escueta shows that the victim sustained a total of seven (7) gunshot wounds, with entrances at the back and the other wounds sustained while in a lying position. Per the autopsy report, the cause of the victim’s death was massive hemorrhage in the thoracic cavity due to accumulation of two liters of blood arising from lacerations sustained by the right lung, heart, liver and abdominal muscles. Abuse of superior strength was also attendant. To take advantage of superior strength is to purposely use excessive force, out of proportion to the means of defense available to the person attacked.[50] In the case at bar, there was clear and gross disparity of strength between the unarmed victim and the six armed assailants - four of whom used four short firearms in shooting the wall where the victim was taking refuge, while two others stood guard, also armed with short firearms. The victim, who was inside the house preparing for his son’s wedding, gave no provocation when he was attacked. However, the aggravating circumstance of superior strength cannot be separately appreciated because it is absorbed by treachery. [51] It was further alleged that the offense was committed with the aid of armed men. The requisites of this aggravating circumstance are: (1) that armed men or persons took part in the commission of the crime, directly or indirectly, and (2) that the accused availed himself of their aid or relied upon them when the crime was committed.[52] In this case, while the appellants were all armed, all of them acted in conspiracy with one another. All of the appellants acted in concert to ensure the commission of the crime. Hence, the aggravating circumstance cannot be appreciated. Even if it were so, the same could not be appreciated separately as it is deemed to have been absorbed by treachery.[53] Appellant Domingo Banhaon insists that his voluntary surrender and his refusal to escape during the jail break gives proof to his innocence. In order for voluntary surrender to be appreciated, the following requisites should be present: (1) the offender has not been actually arrested; (2) the offender surrendered himself to a person in authority or the latter’s agent; and, (3) the surrender was voluntary. Further, the surrender must be spontaneous in such a manner that it shows the interest of the accused to surrender

unconditionally to the authorities, either because he acknowledged his guilt or because he wishes to save them the trouble and expenses necessarily incurred in search and capture. [54] In the case at bar, appellant Banhaon remained at large even after Judge Francisco Ma. Guerrero issued the warrant for his arrest on March 17, 1994.[55] Appellant Banhaon surrendered only on June 27, 1995, after an alias warrant of arrest had already been issued against him, and approximately six years after the commission of the crime. Clearly, voluntary surrender cannot be appreciated in his favor as a mitigating circumstance. Neither can it be used to show his innocence. Appellant Banhaon’s failure to escape is not indicative of his innocence. The records reveal that the crime was committed during nighttime. This circumstance is considered aggravating only when it facilitated the commission of the crime, or was especially sought or taken advantage of by the accused for the purpose of impunity. The essence of this aggravating circumstance is the obscuridad afforded by, and not merely the chronological onset of, nighttime. Although the offense was committed at night, nocturnity does not become a modifying factor when the place is adequately lighted and, thus, could no longer insure the offender’s immunity from identification or capture. [56] In the case at bar, it was not shown that nighttime was especially sought for or used to insure the offender’s immunity from identification or capture. We note that the Information alleges that the appellants used firearms to kill the victim. Under Republic Act No. 8294, the use of unlicensed firearm is an aggravating circumstance if such firearm is used to commit homicide or murder. However, such circumstance cannot be appreciated against the appellants because of the following: (a) the law took effect after the commission of the crime and a retroactive application thereof would be unfavorable to the appellants; and, (b) there is no allegation in the Information, nor was it proved by the prosecution that the appellants had no license or permit to possess the firearms. The lack of license or permit of the appellants to possess the firearms is a negative averment which is an essential element of the aggravating circumstance and must be alleged in the Information. Under Article 248 of the Revised Penal Code, as amended by Rep. Act No. 7659, murder is punishable by reclusion perpetua to death. However, when the crime was committed in 1989, murder was punishable by reclusion temporal maximum to death. Where no mitigating or aggravating circumstance attended the commission of the crime, the medium period of the imposable penalty, which is reclusion perpetua, should be imposed by the trial court. In this case, no mitigating nor aggravating circumstance attended the commission of the crime. Hence, the trial court correctly imposed the penalty of reclusion perpetua on the appellants. Conformably with recent jurisprudence, we sustain the amount of P50,000 for civil indemnity to the heirs of the deceased without need of any further proof.[57] Exemplary damages ofP25,000[58] must, likewise, be awarded, in accordance with Article 2230 of the Civil Code because of the attendance of the qualifying circumstance of treachery.[59] However, the award of moral damages should be deleted in the absence of any sufficient evidence to support the same.[60] The heirs of the victim are, however, entitled to temperate damages.[61] WHEREFORE, the appealed decision of the Regional Trial Court of Pasig City, Branch 160, finding the appellants Luis Corcolon, Rogelio “Boy” Corcolon, Lito Calong-Calong and Domingo Banhaon guilty beyond reasonable doubt of murder is hereby AFFIRMED with MODIFICATIONS. Said appellants are ORDERED to pay, jointly and severally, the heirs of the victim, Ruben Velecina, Fifty Thousand Pesos (P50,000) as civil indemnity; Twenty-Five Thousand Pesos (P25,000) as exemplary damages; and Twenty-Five Thousand Pesos (P25,000) as temperate damages. The award of moral damages is deleted. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45722 June 23, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO JUSEP, defendant-appellant. FERNAN, J.: The records of this case were elevated to this Court from the Court of First Instance of Zamboanga del Norte, Branch III * at Dipolog City for automatic review of the decision of December 23, 1976 which found Leoncio

Jusep guilty beyond reasonable doubt of murder and imposed on him the death penalty and other accessory penalties under the law, and the payment of an indemnity of P12,000 to the heirs of the victim, Jesus Gandola, plus the costs of the suit (Criminal Case No. 1118). As gathered by the prosecution, the facts of the case are as follows: Jesus Gandola was the administrator of the 28-hectare land located along the seashore of Malolong, Zamboanga del Norte, belonging to his aunt, Maria Perdices. He lived in nearby Loquilos, Manukan, also in Zamboanga del Norte. He was engaged in fishing ("sensoro") as was Leoncio Jusep, who used to stay in Perdices' land before he was driven out of it for failure to pay rentals (TSN, November 14, 1974, pp. 25-26; August 23, 1974, pp. 4-5). The stiff business competition between Gandola and Jusep developed into something akin to bad blood between them. One time, Gandola tried to borrow fifteen empty fish boxes from Jusep but the latter refused to lend him any. On another occasion, Jusep asked Gandola's father, Angel, to admonish Etot (Gandola's nickname) not to spread the rumor that Jusep had stolen a cow (TSN, supra, p. 26). And, there was a time when Gandola fired his rifle at Jusep whom he caught disturbing with a fish net the school of fish which had been spotted by Gandola's fisherman (TSN, August 23, 1974, pp. 11-12). Sometime in May, 1967, Pastor Cotillas, who took charge of Jusep's fishing business, went to Hilongos, Leyte under the pretext of recruiting fishing laborers or "buseros." Actually, he was on an errand for Jusep to look for a hit man to do away with Gandola. Pastor contacted his cousin, Alfredo Cotillas, and brought him to Manukan where Alfredo met Jusep for the first time. The latter went with Pastor to Manukan. When Pastor introduced them to each other, Jusep asked Alfredo if he was the same person that Pastor had told him about and Alfredo replied that he was indeed the one. Jusep then told Alfredo to shoot Gandola in consideration of the amount of P2,000. He promised to give Alfredo said amount after he had shot Gandola (TSN, August 15, 1974, pp. 14, 28 & 32). Jusep and Alfredo frequently talked to one another because the former's house was very near that of Pastor where Alfredo stayed. When Alfredo asked Jusep where he would meet Gandola, Jusep answered that he should go to that part of Manukan where there was a big house and he would not miss Gandola who was a big fellow (TSN, supra, p. 15). The first time Alfredo saw Gandola was when they were on the seashore and Jusep pointed out Gandola who was then standing on a bamboo raft. The second time was when Jusep made him ride a jeep which passed by Gandola's house (TSN, supra, pp. 57-58). When Alfredo asked for a gun, Jusep told him to wait awhile because the .45 caliber gun had not yet arrived (TSN, supra, p. 16). In the morning of August 1, 1967, while Alfredo was in the kitchen of Pastor's house, Jusep arrived. He presented Alfredo with a .32 caliber revolver and told him to use it in shooting Gandola. Jusep said, "You always tack that revolver on your waist because there will be a movie in the afternoon and that fellow might come and you finish him ("butangi") there" (TSN, supra, p. 17). But, as instructed by Jusep, Alfredo did not leave Pastor's house that afternoon. When Jusep came back, he informed Alfredo that Gandola was not watching the movie. So, he told Alfredo, "You better go to his house because he is not around" (TSN, supra, p. 18). Jusep and Alfredo then hiked along the seashore to the house of Gandola. When they arrived there, they stayed by the coconut tree near the house. They waited for people to come out of the house as it was then time for cooking supper. When they noticed that the people in the house were about to take supper, Jusep directed Alfredo to go under the house while he stayed a little distance therefrom (TSN, supra, pp. 19-23). The floor of Gandola's house was 2 1/2 to 3 feet from the ground. Alfredo went to that part of the ground underneath the house just below where Gandola was seated eating his supper. He could easily see the persons inside the house because the floor was made of bamboo slats placed one-fourth of an inch apart (Exh. E; Record, p. 164; TSN, supra, p. 24). Meanwhile, Gandola, his wife Arcelita, two of their three children, a baby-sitter and some "buseros" were taking their supper. Gandola was seated at one end of a bench beside his daughter. Unexpectedly, they heard an explosion. Gandola stood up, looked towards the national road and then towards the sea. Suddenly, he held his side and said, "Gin, I was shot" (TSN, August 23, 1974, p. 7). Alfredo shot Gandola by holding the gun perpendicularly and aiming at the left side of Gandola's abdomen just below his ribs. Having hit his mark at the first shot, Alfredo aimed for another shot but due to the smoke emitted by the gun after the blast, he got out from under Gandola's house, went to where Jusep was, and together they proceeded to Jusep's house (TSN, August 15, 1974, pp. 24-25). After learning that Gandola had been shot, one of the "buseros" tried to put out the light from the Petromax lamp but Arcelita quickly pumped air into the lamp to brighten the house. Seeing her husband wounded, she

took a flashlight and went down the house hoping that she could still see the assailant. When she saw nobody downstairs, she went up the house and saw her husband leaning on the bench. Gandola told her to inform his father about the incident. Arcelita acquiesced and hurried towards Linay, Manukan to her father-in-law's house. Along the way, she met someone to whom she entrusted the task of informing Gandola's father about the shooting incident (TSN, August 23, 1974, pp. 7-8). When Arcelita returned to their house, Gandola told her to inform his father that it was Leoncio Jusep who had "looked for" his killer. As he spoke, Gandola acted as if nothing had happened to him. He then asked Arcelita to hail a vehicle so that he could be brought to a hospital. He repeated his instruction to Arcelita to tell his father that it was Leoncio Jusep who had looked for a person to kill him (TSN, supra, p. 8). Arcelita waited for a vehicle to pass by but none came. Later, the person she had told to go to her father-inlaw arrived in a jeep. On the way to the hospital in Dipolog City, Gandola once more told Arcelita that Leoncio Jusep was the one who had looked for his killer and that, should he be unlucky and die, Arcelita should take over their fishing business. When they arrived at the hospital at around 10:00 o'clock that evening, Gandola was x-rayed. While he was being wheeled to the operating room, Gandola reiterated to Arcelita that it was Leoncio Jusep who had looked for his killer. Arcelita stayed outside the operating room while her husband was being operated on. At 4:00 o'clock the following morning, she was informed that Gandola was dead (TSN, supra, p. 9). Gandola, who was 36 years old at the time of his death, underwent an exploratory laparotomy with gastrorraphy and splenectomy. The bullet which entered his left lower chest, lateral aspect, penetrated his abdomen and thoracic cavities, perforated his stomach and lacerated his spleen thus causing massive intraabdominal hemorrhage (Exh. M; Record, p. 171). The immediate cause of his death was severe anemia due to massive hemorrhage (Exh. K; Record, p. 169). In the meantime, coming from Gandola's place, Alfredo and Jusep encountered two persons (TSN, August 15, 1974, p. 25). One of them, Andres Gundes (Geondres), was defecating near his house about a hundred meters from Gandola's house. He heard the explosion and, shortly thereafter, saw two men walking towards him. Gundes aimed his flashlight at them and recognized them as Pidong Cotillas and Leoncio Jusep (TSN, August 22, 1974, p. 4). Gundes had known Jusep for several years and therefore he could not be mistaken in Identifying him (TSN,supra p. 5). The other person who saw Alfredo and Jusep was Teofisto Villarin, who, after hearing the explosion, alighted from the coconut tree on which he had perched extracting tuba. Upon reaching the ground, he switched on his flashlight and saw Alfredo and Jusep (TSN, August 15, 1974, p. 70). Alfredo returned the gun to Jusep upon their arrival in Jusep's house (TSN, supra, p. 31). Jusep then instructed Alfredo to spend the night in Pastor's house. Alfredo stayed there until the 3rd of August, 1967 when Jusep handed Alfredo only around twenty pesos instead of the promised P 2,000, and told him to return to Leyte (TSN, supra, pp. 26-27). Alfredo demanded from Jusep that he be given the P2,000 but Jusep promised him that he would send that amount to him through Pastor (TSN, supra, p. 32). Agents of the National Bureau of Investigation (NBI) looked into the killing of Jesus Gandola. The first suspect to be investigated was one Rivera who allegedly had a quarrel with Gandola. Then they picked up Pastor Cotillas (TSN, August 22, 1974, pp. 29-30). In his first sworn statement which he executed on August 10, 1967 in Villaramos, Manukan, Zamboanga del Norte before NBI agents Arturo H. Nunag and Restituto M. Reluya, Pastor admitted having worked for Jusep. He claimed that at around 7:30 in the evening of August 1, 1967, he was selling fish in the market with his wife and the wife of Jusep. He stated that he knew Gandola because he used to stay in Gandola's land for around ten years. He added that Gandola and Jusep had a misunderstanding because the latter refused to lend fish boxes to the former but that they later made up and talked to each other again. He admitted that in February, 1967, he built his house on Jusep's land without paying rentals thereon, and that Jusep even lent him P200 for his house but Jusep never demanded that he pay back said amount. However, he denied having received from Jusep P500 to pay whoever would agree to liquidate Gandola (Exh. 0; Record, p. 264). Five days later or on August 15, 1967, Pastor executed another sworn statement before the same NBI agents but this time in Dipolog City. He admitted therein that he had offered P500 to one Tacluban to liquidate Gandola; that he was acting on instructions of Jusep; that it was Jusep who approached him to find a man who could kill Gandola; that he went to Ozamis City to look for a hired killer; that his cousin, Alfredo Cotillas, whom he had recruited for Jusep's fishing business, told him when they arrived in Manukan that Jusep had suggested to him (Alfredo) that he should kill Gandola; that he told Alfredo that it was not a good proposition because even if he (Pastor) had looked for the hired killer, he did not want any of his relatives to get involved

in the killing; that at 6:00 o'clock in the morning of August 2, 1967, Jusep told him that Gandola did not die instantaneously of the gunshot wound in conflicted on him by Alfredo ("Matay, tor, wa man ma antimano"); that the gun used in killing Gandola was in the possession of Jusep; and that on the day he executed the statement, he was leaving for Leyte to warn Alfredo to keep his mouth shut because Jusep was afraid that Alfredo might reveal that Jusep had instigated the killing of Gandola (Exh. P; Record, pp. 266-269). The following day, August 16, 1967, Pastor executed his third sworn statement before NBI agents Alberto de la Rosa and Arturo M. Nunag in Zamboanga City. The certified copy of said statement which was presented in court was in the Cebuano dialect and, like Exhibit P it was the only available copy of said statement. ** Pastor stated therein that he was in the market when Gandola was shot. He knew that Jusep owned the .32 caliber revolver used in shooting Gandola because it was Jusep who masterminded or instigated ("nagsugo") the killing of Gandola. According to Pastor, Jusep gave him P600, of which P500 would be paid to whoever would agree to kill Gandola and the balance of P100 would be spent in looking for the killer. He reiterated that he had given Tacluban the P500 but Tacluban allegedly lost it in gambling. He stated that sometime in January, 1967, when Jusep passed by Gandola's place to fish, Gandola chased him with his pumpboat. Sometime in May (1967), Jusep instructed him to look for "buseros" in Leyte. There, he met Alfredo (Didong or Pidong) and told him about Jusep's quest for a killer. Alfredo went with him to Manukan and he introduced him to Jusep. Pastor narrated that it was on July 15, 1967 when Alfredo, Jusep and himself, talked about the killing of Gandola. Jusep told Alfredo that if the latter would agree to kill Gandola, he (Jusep) would take care of everything. At around 11:00 o'clock in the morning of August 1, 1967, the three met once again in the warehouse ("kamalig") of Jusep to map out the plan to liquidate Gandola. They agreed that it would be best to pass through the seashore both in going to and in coming from Gandola's house and that they would execute the plan at 7:30 o'clock p.m. to coincide with suppertime. Pastor admitted that he was a friend and trusted business associate of Jusep whom he first met in 1958. The last time he talked to Jusep about the case was the day before (August 15, 1967) at around 7:00 o'clock in the morning when Jusep instructed him to go to Leyte to warn Alfredo not to talk to the NBI agents (Exh. Q; Record, pp. 270-273). From Zamboanga City, Pastor accompanied NBI Agent Nunag to Hilongos, Leyte. Together with NBI Agent Carlos Ortega and a policeman from Bato, Leyte, Nunag apprehended Alfredo. At first, Alfredo denied having participated in the commission of the crime. But when the NBI agents arranged a confrontation between him and Pastor, Alfredo admitted his involvement therein. After taking Alfredo's sworn statement, *** the NBI agents took Pastor and Alfredo to Dipolog City via Cebu City (TSN, August 22, 1974, pp. 35-38). Thereafter, appellant was arrested at the residence of his lawyer (TSN, supra, p. 45). Pastor Cotillas, Alfredo Cotillas and Leoncio Jusep were charged with murder for the death of Jesus Gandola, The municipal judge of Manukan, who conducted a preliminary examination on the case, issued a warrant for the arrest of the three suspects. The record of the case was then forwarded to the Court of First Instance of Zamboanga del Norte and the provincial fiscal filed the corresponding information before said court (Criminal Case No. 4826). When he was arraigned on November 16, 1967 Leoncio Jusep pleaded not guilty (Record, p. 48). After the case was set for trial, Second Assistant Provincial Fiscal Hermogenes S. Balisado filed a motion to discharge Leoncio Jusep as an accused alleging that after "a judicious study, evaluation and analysis of the evidence on record," he was convinced that the prosecution could not establish conspiracy between Jusep and his coaccused, and therefore, it would be futile for the prosecution petition to proceed with the trial of the case with respect to Jusep who would anyway be acquitted. He prayed that Jusep be "provisionally discharged from the information. " The motion, dated November 28, 1967, was made with the conformity and signature of Leoncio Jusep (Record, pp. 102-103). The provisional dismissal of the case against Jusep was granted by the court for "lack of sufficient evidence to connect him with the crime" (Criminal Case No. 4826 Decision, p. 2; Record, p. 107). Said dismissal order was issued after the parties had agreed that the investigators would continue gathering evidence on the case aimed at its refiling should the gathered evidence so warrant (Record, p. 82). The trial of Alfredo and Pastor Cotillas proceeded. On August 20, 1969, the Court of First Instance of Zamboanga del Norte, Branch II, promulgated a decision finding the Cotillas cousins guilty beyond reasonable doubt of murder and imposed on them the indeterminate sentence of ten years and one day of prision mayor to twenty years ofreclusion temporal and the payment jointly and severally of P12,000 indemnity to

the heirs of Gandola (Criminal Case No. 4826 Decision, p. 10; Record, pp. 106-115). Alfredo and Pastor Cotillas did not appeal from said decision. Angel Gandola, the victim's father, who was apparently convinced that Jusep was as guilty as Alfredo and Pastor, initiated the taking of sworn statements of more witnesses. The affidavits were forwarded to the office of the provincial fiscal. Consequently, the case was reopened and Fiscal Balisado started the reinvestigation on August 24, 1970 (Record, p. 82). Due to the delay in the issuance of a resolution regarding the reinvestigation, Angel Gandola referred the case to the Department of Justice (Record, p. 53-54). Thereafter, on April 12, 1973, Fiscal Balisado issued a resolution stating that there was no prima facie evidence against Jusep to warrant his prosecution for murder, and dismissed the case against him without prejudice to its reopening "should new material evidence be discovered" (Record, pp. 80-97). On May 7, 1973, the Chief State Prosecutor directed Fiscal Balisado to transmit to his office the record of the case and his resolution thereon. Five months later, then Undersecretary of Justice Efren I. Plana, through a letter dated October 4, 1973, found that there was a prima facie case against Jusep, set aside Fiscal Balisado's April 12, 1973 resolution and directed the Acting Provincial Fiscal to file with a competent court the corresponding information against Leoncio Jusep for murder (Record, pp. 27-28). On November 29, 1973, Third Assistant Provincial Fiscal Rodolfo T. Mata filed before the trial court a motion to admit an information charging Jusep as the mastermind of the murder of Gandola with a prayer that Jusep be arrested and that no bail be granted for his provisional liberty (Record, p. 1). Attached to the information was a certification issued by Fiscal Mata which states that: I HEREBY CERTIFY that a proper preliminary investigation No. 1222 against respondent LEONCIO JUSEP has been conducted by Second Assistant Provincial Fiscal Hermogenes S. Balisado whose resolution to dismiss was appealed to the Secretary of Justice who reversed said resolution of Preliminary Investigation No. 1222 and found out that there exists a prima facie case or that respondent Leoncio Jusep is probably guilty of the offense of Murder. Dipolog City, November 29, 1973. (Sgd.) RODOLFO T. MATA Third Assistant Provincial Fiscal SUBSCRIBED AND SWORN to before me this 29th day of November, 1973 at Dipolog City, Philippines. (Sgd.) RODABALLO Y. REALIZA Acting Provincial Fiscal On December 12, 1973, Jusep filed a motion to quash the information and to suspend the issuance of a warrant of arrest on the grounds that Fiscal Mata had no authority to file the information because he did not conduct the preliminary investigation pursuant to Republic Act No. 5180 and Presidential Decree No. 77; that the filing of the information was merely a revival of Criminal Case No. 4826, and that pursuant to paragraph 6 of Department of Justice Circular No. 74 dated July 26, 1967, where several persons commit a crime but are charged or investigated separately, the head of the office "shall see to it that the charges are investigated by the same investigating fiscal" (Record, pp. 9-11). The prosecution opposed said motion. In its resolution of December 14, 1973, the lower court granted the motion to quash "without prejudice to the right of the fiscal who originally conducted the preliminary investigation to sign and file the corresponding information" or should Fiscal Mata sign and file the information and prosecute the case, he should conduct a "subsequent preliminary investigation in conformance with law" (Record, pp. 14-17). Five days later, the lower court amended said order, reconsidering the quashal of the information, and holding in abeyance the action on the motion to admit the information until the provincial fiscal shall have signed and filed the corresponding information "as the authority that was delegated to him by the Department of Justice to do cannot be redelegated" (Record, p. 18). Hence, Fiscal Balisado took over the case (Record, p. 19). On December 27, 1973, the following amended information was filed: The undersigned Acting Provincial Fiscal, with leave of court and pursuant to its amendatory order dated December 19, 1973, hereby amends the information on record and accuses LEONCIO JUSEP as Principal by induction of the crime of MURDER, committed as follows: That in the evening on or about the 1st day of August, 1967, in the municipality of Manukan, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said accused LEONCIO JUSEP being then the mastermind in the bizarre plot to liquidate one JESUS GANDOLA alias Etot, conspiring, confederating and working together with PASTOR COTILLAS (Principal) by indispensable cooperation and ALFREDO COTILLAS

(Principal by direct participation) who were already convicted by final judgment in a decision promulgated by this Honorable Court on August 28, 1969 for the same crime of Murder in Criminal final Case No. 4826, and are still presently serving their respective sentence, did then and there induce, offer a price and reward to his co-accused Pastor Cotillas and Alfredo Cotillas, the latter having acted as the triggerman, arming them with revolver Cal. 32, and all with intent to kill by means of treachery and evident premeditation and by taking advantage of the darkness of the night to better accomplish their evil motives in pursuance to their conspiracy, did then and there wilfully, unlawfully and feloniously attack, assault and shoot said JESUS "Etot" GANDOLA while the latter was eating his supper in his dwelling house thereby inflicting upon him gunshot wounds on his left lower chest penetrating the abdominal and thoracic cavities, perforating the stomach, liver, diaphragm and crushing his spleen which caused his death the following dawn despite the medical attendance rendered to him; that as a result of the commission of the said crime, the heirs of the victim suffered the following damages, viz: 1. Indemnity for the death of the victim........................................... P12000 2. Loss of earning capacity.............................5,000 3. Moral damages............................................10,000 4. Exemplary damages.....................................10,000 TOTAL......................................P37,000 CONTRARY TO LAW, with the qualifying circumstances of treachery and evident premeditation, and the aggravating circumstance of nighttime, dwelling, and consideration of price and reward. Dipolog City (for Zamboanga,. del Norte), December 26, 1973. (Sgd). RODABALLO Y. REALIZA Acting Provincial Fiscal The Acting Provincial Fiscal's motion to admit the amended information was opposed by the accused on the ground that it did not contain a certification stating that a proper preliminary investigation had been conducted before it was filed (Record, pp. 23-24). In view of that development, the Acting Provincial Fiscal submitted to the Court Undersecretary of Justice Plana's letter of October 4, 1973 (Record, pp. 27-28). In its order of January 21, 1974, the lower court resolved that the said letter would "suffice as the requisite certification that forms part of the said amended information," admitted the said information, directed the issuance of a warrant for the arrest, of the accused and fixed the bail at P40,000 (Record, p. 38). The prosecution moved for a reconsideration of that order insofar as it granted the P40,000 bail (Record, pp. 45-49). On the other hand, the accused moved to quash the amended information on the grounds that the officer who filed the information had no authority to do so; that the information did not conform substantially to the prescribed form for lack of a certification that a preliminary examination or investigation had been conducted; and that the accused was previously in jeopardy of being convicted or acquitted of the offense charged because he had pleaded not guilty in Criminal Case No. 4826 when he was discharged as an accused therefrom (Record, pp. 45-49). The lower court resolved both motions in its order denying the motion to quash. In his arraignment, Jusep pleaded not guilty of the crime charged (Record, p. 125). The prosecution offered its version of the crime as narrated above. Thereafter, the defense presented Pastor Cotillas as witness and he testified that sometime before August, 1967, he visited Barrio Baliw, Hilongos, Leyte to look for "buseros" at the request of Leoncio Jusep. His cousin, Alfredo, went back with him to Manukan with the seven "buseros" he had recruited for Jusep. On August 1, 1967, he and Alfredo went to Loquilos to shoot Gandola. They had decided to kill Gandola because the latter chased him with a gun and boxed Alfredo. Gandola was mad at him because he refused to buy fish from him. During the commission of the crime, he hid among the coconut trees some twenty meters away and, after Alfredo shot Gandola with his own gun, they went back to his (Pastor's) house. They did not meet anyone along the way. A few days later, Alfredo returned to Leyte (TSN, July 18, 1975, pp. 31-34 & 37). While he was a detention prisoner in the provincial jail of Zamboanga del Norte, Gandola's father and wife "Estelito" visited him. Gandola's father told him that a case had already been filed against Jusep and that should he agree to be a state witness in said case, Gandola's father would give him P5,000 (TSN, supra, p. 35). Leoncio JusePinterposed alibi as his defense. He testified that on July 24, 1967, he left Manukan for Dapitan City and from there, took a boat bound for Dumaguete City, arriving therein the following day. He proceeded to the house of his younger brother, Tranquilino Jusep. Later, he went to Tanjay, Negros Oriental to buy "

sinamay " or " bulsahon " to be used as a fish net. In Tanjay, where there was a town fiesta, he stayed with Jose Tabanda until the 27th of July. He gave P250 to Tabanda so that the latter could buy the "bulsahon" before his return to Tanjay from Dumaguete City on the 29th of July. He had to go back to Dumaguete City because he had a fever. He was treated by one Doctor Bueno who ordered the laboratory examination of his urine, blood and stool. He obtained the result of the laboratory tests the following morning and gave them to Doctor Bueno. For his cough and fever, Doctor Bueno gave him injections twice a day. He reported to Doctor Bueno's clinic until August 2, 1967. He left Dumaguete City around midnight of August 2, 1967 and arrived at Dapitan City in the early morning of August 3. Then he boarded a jeep bound for Dipolog City and from there he proceeded to Manukan, arriving there at around ten o'clock in the morning (TSN, January 29, 1976, pp. 51-56). Jose Tabanda and Tranquilino Jusep corroborated Jusep's alibi. Ricardo Binondo testified that he heard the news that Gandola was shot at around 7:00 o'clock in the evening of August 1 and that, while waiting for the fishermen at the beach in Manukan, he saw prosecution witnesses Gundes and Villarin alighting from a boat at around 8:00 o'clock that same evening (TSN, October 17, 1975, pp. 31-37). The trial court did not give credence to the defense version. On December 23, 1976, it rendered the aforementioned decision imposing the death penalty on Jusep. He filed a motion for its reconsideration but the lower court denied it. Hence, the instant automatic review of the lower court's decision. In his brief, appellant avers that the lower court erred in: (a) admitting the information against him without the proper preliminary investigation; thus, infringing his right to due process of law; (b) giving credence to the testimonies of Alfredo Cotillas, Arcelita Gandola, Angel Gandola and the other prosecution witnesses; (c) finding that he conspired with Alfredo and Pastor Cotillas; thus, totally ignoring the affidavit executed by Alfredo stating that he acted alone in shooting Gandola; (d) considering the statement of Gandola that it was he who looked for Gandola's killer; (e) finding that he was positively Identified by Villarin and Gundes; (f) discrediting his alibi and the oral and documentary evidence in support thereof; (g) completely discrediting the testimonies of defense witnesses Pastor Cotillas, Jose Tabanda, Ricardo Binondo and Tranquilino Jusep; and (h) finding him guilty as charged and imposing on him the death penalty. Appellant's allegation of deprivation of due process of law resulting from the filing of the information without a proper preliminary investigation is baseless. Contrary to his allegation, the record shows that Fiscal Balisado did in fact conduct a preliminary investigation. Although on the basis of said preliminary investigation, he recommended the dismissal of the charge against appellant, his dismissal resolution was reversed by the Department of Justice. Strictly speaking, no appeal was interposed from said dismissal resolution as the case was referred to the Department of Justice even before said resolution was issued. However, when the Secretary of Justice later reversed the dismissal resolution, he exercised his power "to alter, modify or nullify or set aside what a subordinate officer had done in the performance of his duties and substitute the judgment of the former for that of the latter" (Vda. de Jacob vs. Puno, G.R. No. 61554-55, July 31, 1984, 131 SCRA 144, 148 quoting Noblejas vs. Salas, L-31788 & 31792, September 15, 1975, 67 SCRA 47). Another preliminary investigation would have been superfluous because the Secretary of Justice based his order to file the information on his review of the evidence presented during the preliminary investigation conducted by Fiscal Balisado. Parenthetically, it should be noted that under the 1985 Rules on Criminal Procedure, in cases where the Minister (now Secretary) of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, "he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information" (Section 4, Rule 112). On the merits of the case, We are convinced that the prosecution has proven beyond reasonable doubt that appellant is guilty of masterminding the murder of Jesus Gandola. Ironically, the sworn statements of appellant's trusted friend Pastor Cotillas helped in sealing the case against him. Pastor's declaration in court that he executed those statements because he was afraid that the NBI agents would manhandle him is entirely untrue as he himself admitted that physical force was never inflicted on him. It seems, however, that Pastor was more apprehensive of the consequences of his revelations than anything else. He was heavily indebted to Jusep and therefore, to his mind, telling the truth to the authorities would be an act of betrayal. In fact, he tried to correct the damage his sworn statements had done to his avowed friend, Jusep, by presenting the story that he was Alfredo's co-author of the crime and that it was he who accompanied Alfredo when the latter performed the dastardly act, forgetting all the while that in two of his sworn statements, he had stated that he was in the market selling fish when Gandola was murdered.

We hold that the testimony of Alfredo Cotillas alone is sufficient to prove appellant's direct involvement in the crime. The testimonies of Arcelita and Angel Gandola merely fortify the fact that it was appellant's Idea to liquidate Gandola, and the testimonies of the other witnesses, especially those regarding appellant's presence at the scene of the crime, prove beyond reasonable doubt that appellant is as guilty as the convicted Cotillas cousins for the murder of Gandola. The credibility of triggerman Alfredo Cotillas as a witness has remained intact notwithstanding the attempts of the defense to demolish it. Concededly, the testimony of a co-conspirator or a co-accused should be treated with caution. However, the same may be admitted and considered should there be no convincing proof that his credibility is impaired. In this case, the defense failed to show any reason why Alfredo's testimony should not be given weight and credence. What it considered as a taint to his credibility is the fact that it took him more than two years to reveal the complicity of appellant in the murder. But the delay is not without an explanation. During the trial of Criminal Case No. 4826, Alfredo and Pastor were both defended by a counsel provided by appellant (TSN, August 15, 1974, pp. 37-38). It was but natural that said counsel would not present them in court for there was the risk that during cross-examination, they might implicate their benefactor, appellant herein. Moreover, until the information for murder was filed against Jusep, there was no occasion for Alfredo to appear in court to tell the truth. Coupled with that is the fact that even after his conviction, Alfredo was still entertaining the hope that Jusep would make good his promise to give him P2,000. That hope disuaded him from implicating Jusep in his sworn statement before the NBI agents (TSN, supra, pp. 49-50, 63). In said sworn statement, Alfredo allegedly admitted that he was alone when he shot Gandola. Appellant now contends that said sworn statement was "suppressed" by the prosecution. This contention is unfounded. Said sworn statement was an exhibit in Criminal Case No. 4826 the record of which had been lost (TSN, supra, pp. 5-6; Record, pp. 16 & 116). If the appellant was really convinced that it was vital to his defense, then he should have exerted extra efforts in procuring it so that it could be presented in court. Appellant's professed non-involvement in the crime is belied by his frequent visits to the Cotillas cousins while they were detained in the provincial jail. According to the warden, appellant was particularly interested in the actual date of the Cotillas' transfer to the San Ramon Penal Colony as he wanted to give them MONEY or "pabalon" (TSN, November 14, 1974, p. 24). Hence, it is not far-fetched to assume that he was behind Pastor's return to said colony four days after his release on parole on July 17, 1974. Although Pastor claimed that he returned there to visit Alfredo and to give him P150, We are convinced that the purpose of his trip was actually to make Alfredo sign an affidavit claiming sole authorship of the murder and ownership of the fatal weapon (TSN, August 15, 1974, pp. 40-41; July 18, 1975, pp. 48-49; September 4, 1975, pp. 3-4). Appellant's alibi cannot save him either. Although he presented evidence that he was in Dumaguete City late in July, 1967, the possibility that appellant could have returned to Manukan to oversee the execution of his devious plan to kill Gandola, is not remote. As observed by the trial court, considering that the distance between Manukan and Dipolog City is only 38 kilometers and that between the Zamboanga peninsula and Dumaguete City it takes only three to four hours ride on a pumpboat, it is not impossible for appellant to have left Manukan after the commission of the crime and to be in the same place in the morning of August 2, 1967. Moreover, his defense of alibi totally crumbles in the face of his trusted friend Pastor's sworn statement that at 6:00 o'clock in the morning of August 2, appellant himself informed Pastor that Gandola was not killed instantaneously (Exh. P). Alibi being the weakest of all defenses, it cannot prevail over direct positive evidence on the presence of the appellant at the scene of the crime (People vs. Reyes, L-18892, May 30, 1966, 17 SCRA 309; People vs. Venezuela, L-48057, August 19, 1982, 115 SCRA 865). Appellant's presence therein proves his complicity and evinces culpable association with the triggerman (People vs. Rivera, L-14077, March 31, 1964, 10 SCRA 462). It is worth noting that Villarin and Gundes were not the only ones who saw appellant near Gandola's house. Felipe Santander, in his sworn statement, stated that before 8:00 o'clock in the evening of August 1, 1967, he met Alfredo and the appellant along the seashore of Manukan (Exh. A). His refusal on the witness stand to Identify the person he saw running on the seashore with Pidong Cotillas is explained by his own admission that appellant was his friend (TSN, August 22, 1974, pp. 19 & 21). As it was the appellant who conceived the perpetration of the crime, met with the Cotillas cousins to deliberate on its execution and was present at the time of its consummation, he is a principal by direct inducement (U.S. vs. Bundal, 3 Phil. 89). His promise of P2,000 to Alfredo is equivalent to moral coercion as it was the moving cause which impelled Alfredo to kill Gandola, (U.S. vs, Mijares, 3 Phil. 447).

Conspiracy has also been proven by the prosecution. Appellant and the Cotillas cousins came to an agreement concerning the killing of Gandola and decided to go through with it. All three of them are therefore liable as co-principals and the act of each conspirator is the act of all (Art, 8, par. 2, Revised Penal Code; People vs. Timbang, 74 Phil. 295). Treachery qualified the killing which was done in such a manner as to completely surprise the victim and make him a defenseless target. Nocturnity is absorbed by treachery. Evident premeditation, which was alleged as a qualifying circumstance in the information, should be considered only as a generic aggravating circumstance as treachery is sufficient to qualify the killing as murder (People vs. Diaz, L-24002, January 21, 1974, 55 SCRA 178). The crime was attended by evident premeditation because after appellant and the Cotillas cousins had planned the manner by which they would kill Gandola, they allowed a sufficient interval of time to elapse wherein they could have dispassionately considered the consequences of their act. Although Alfredo did not actually receive the P2,000 promised him by the appellant, the price, promise or reward is a generic aggravating circumstance because it impelled Alfredo to shoot Gandola. Dwelling should also be considered as a generic aggravating circumstance with regard to appellant even if it was Alfredo who went under Gandola's house, because of the proven conspiracy in the commission of the crime. Under Article 248 of the Revised Penal Code, murder is punishable by reclusion temporal maximum to death. There being three generic aggravating circumstances and no mitigating circumstances to offset them, the lower court correctly imposed the death penalty (Article 64, (3) & (6), Revised Penal Code). However, pursuant to Section 19, Article III of the 1987 Constitution, the death penalty imposed by the lower court should be reduced toreclusion perpetua (People vs. Laguardia, G.R. No. 63243, February 27, 1987). WHEREFORE, the decision of the lower court is hereby affirmed with the modification that appellant is hereby meted the penalty of reclusion perpetua and ordered to pay the heirs of Jesus Gandola an indemnity in the amount of thirty thousand pesos. Costs against the appellant. SO ORDERED. FIRST DIVISION [G.R. No. 126287. April 16, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLANDO HERRERA DE LEON, accused-appellant. DECISION PARDO, J.: The case is an appeal from the decision[1] of the Regional Trial Court, Makati, Branch 136, convicting Orlando Herrera de Leon of murder, and sentencing him to reclusion perpetua and to indemnify the heirs of the victim, Michael Oris, in the amount of P50,000.00 as moral damages. On May 2, 1988, Assistant Fiscal Leodegario C. Quilatan of Rizal filed with the Regional Trial Court, Makati an Information charging Orlando Herrera de Leon with homicide, committed as follows: “That on or about the 28th day of April, 1988, in the Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, without justifiable motive, did then and there willfully, unlawfully and feloniously shoot with a gun one Michael Oris, thereby inflicting upon the latter serious and mortal shot wounds which directly caused his death. “CONTRARY TO LAW.”[2] After re-investigation, however, on March 27, 1989, the prosecution withdrew the Information for homicide and filed an amended Information charging accused Orlando de Leon with murder, committed as follows: “That on or about the 28th day of April, 1988, in the Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun, with intent to kill, by means of treachery with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said gun one Michael Oris y Rodriguez, thereby inflicting upon him serious and mortal gunshot wounds which directly caused the death of said Michael Oris y Rodriguez. “CONTRARY TO LAW.”[3] On September 19, 1989, upon arraignment, accused de Leon pleaded not guilty. [4] Trial ensued. On April 28, 1988, at 11:00 p.m., Arthur Alfahora, Deo Vergara, Gilbert Castro, Jess Hernandez, Archie Beticon and Michael Oris were walking along the ricefield near Don Jose Greencourt St., Gatchalian Subdivision, Parañaque, Metro Manila.[5] Suddenly, they heard gunshots fired in their direction. The shots originated approximately 60 meters from them. Arthur Alfahora saw accused de Leon standing outside the perimeter fence of the house of the mayor. Through the light of an electric post, Arthur saw accused de Leon, in white shirt and maong pants, firing at them.[6] Archie Beticon, in the moonlit night, saw accused de Leon holding a long firearm pointed at them.[7] Frightened, the boys started running away from the gunfire but Michael Oris,

who was a little overweight, lagged behind the group. Moments later, Michael was hit. He fell to the ground. He cried out to his companions to help him but the other boys continued running and left the scene. Later, the other boys returned with Michael’s father and they brought the injured Michael to the Olivares Hospital at Sucat Road. A few days later, Michael died. Dr. Danilo Gajardo of the PC Crime Laboratory conducted an autopsy on the cadaver of the deceased Michael Oris, and concluded that the deceased sustained two gunshot wounds and three abrasions. [8]He opined that the deceased was shot from behind, based on the point of entry and direction of the bullets.[9] The two gunshot wounds were fatal because vital organs were lacerated. He did not find the point of exit of the bullets, and the slugs were not recovered. Rodolfo Oris, father of the deceased, testified that he brought his son to the hospital and incurred expenses for the medical treatment given to Michael.[10] Michael was confined for three days but died nonetheless. Michael was buried at the Manila Memorial Park, with expenses that were duly receipted. Rodolfo Oris presented receipts with amounts as follows: P30,483.00 for the hospital expenses, P8,500.00 for the funeral and P3,190.00 for the burial.[11] He stated that the entire family was shocked at the unexpected death of his son. Accused Orlando de Leon denied committing the crime and invoked alibi.[12] He stated that he was a member of the Civil Security Unit of the Parañaque Municipal Government since 1986 to guard the Municipal Hall and the house of Municipal Mayor Wilfrido Ferrer, located at Don Jose Greencourt Road, near the Gatchalian Subdivision. When he guarded the house of the mayor, his shift started at 3:00 in the afternoon until 11:00 in the evening. He had two other companions in the shift: Rey de Leon and another one whose name he could not remember. On April 28, 1988, he was relieved at 10:50 in the evening by policeman Teddy Papa and two other members of his security unit whose names he could not recall. After his shift, accused de Leon claimed that he walked with Rey de Leon five hundred (500) meters to the corner of Don Arcadio Santos Avenue and Gatchalian Avenue. Then, both of them took a passenger jeepney. Accused de Leon alighted at the corner of Sto. Nino and Aquino Avenue, while Rey de Leon continued his ride. Thereafter, accused de Leon took a tricycle to his residence at Col. de Leon St., Sto. Niño. He reached his house at 11:15 that night. His wife and his children were not at home. He slept that night up to 10:00 in the morning of the next day. Accused-appellant denied shooting the victim with a long firearm. As a member of the security unit, he carried only a batuta made of yantok. He denied knowing Michael Oris, but claimed that he knew Michael’s father, Rudy Oris. He never had any misunderstanding with Rudy Oris or any of the latter’s family members. Reynaldo de Leon, a rebuttal witness, alleged that he knew accused Orlando de Leon because they were both security personnel detailed to guard the house of Mayor Wilfrido Ferrer. On April 28, 1988, his shift was from 7 in the morning till 3 in the afternoon. He carried a firearm, an M16, which he turned over to the reliever or to the next guard. He denied accused de Leon’s testimony that they left their place of work together on the evening of April 28, 1988. He also denied riding in the same jeepney with accused de Leon that day. [13] Teddy Papa, a policeman, also testified that he knew accused de Leon because he was also part of the civil security assigned to guard the house of the mayor. His shift lasted from 11 in the evening until 7 in the morning. On April 28, 1988, he saw accused de Leon before 11:00 in the evening armed with an M16 rifle at the barracks located behind the house of the mayor.[14] On January 31, 1996, the trial court rendered a decision, the dispositive portion of which states: “WHEREFORE, and in consideration of all the foregoing, the Court finds the accused, Orlando de Leon, GUILTY beyond reasonable doubt of the crime of Murder, and it hereby sentences him to suffer an imprisonment of Reclusion Perpetua, and to pay the heirs of the victim, Michael Oris, the amount of P50,000.00 by way of moral damages, without any subsidiary imprisonment in case of insolvency. “SO ORDERED. “Makati City, January 31, 1996. “(Sgd.) “JOSE R. BAUTISTA “Presiding Judge”[15] Hence, this appeal.[16] Accused-appellant alleges that the trial court, in convicting him of murder, merely considered the weakness of his defense rather than the strength of the prosecution evidence. We disagree. The trial court cited the testimony of the eyewitnesses to the crime as well as rebuttal witnesses who established accused-appellant’s presence at the scene of the crime. Two eyewitnesses saw accused-

appellant holding a long firearm and shooting at them. Aside from the Meralco electric light post that provided adequate lighting that night, there was moonlight illuminating the area where accused-appellant stood, allowing the eyewitnesses to see his face. The two boys even noticed what the accused-appellant wore on the night in question, which statements were not disputed by the defense. The natural reaction of victims of criminal violence is to strive to notice the appearance of their assailants and observe the manner the crime was committed.[17] Moreover, the prosecution eyewitnesses did not have any motive to implicate accused-appellant in a serious crime like murder. Where there is no evidence that the principal witnesses of the prosecution were actuated by ill-motive, it is presumed that they were not so actuated and their testimony was entitled to full faith and credit.[18] Furthermore, the testimonies of the eyewitnesses were corroborated by the findings of the medical expert that the victim was shot from behind. Accused-appellant pointed out, however, that it was not possible for him to have shot anybody because he was not issued a firearm in guarding the perimeter fence of the mayor’s house. He merely used a nightstick made of yantok or rattan. However, this contention was belied by the testimony of two witnesses who also worked with accused-appellant as part of the civil security of the mayor. They stated that they carried an M16 rifle during their shift which they turned over to the guard of the next shift. On the other hand, accused-appellant’s defense consisted of alibi. For alibi to prosper, the accused must prove that he was somewhere else when the crime was committed and it was physically impossible for him to have been at the scene of the crime.[19] In this case, accused-appellant alleged that he went home when the killing occurred. However, no other witness could support his alibi for his family was not at home and the other person who could attest to the time he went home was his co-worker, Rey de Leon. Unfortunately, Rey de Leon, whom accused-appellant claimed he rode with going home, categorically denied doing so. Noteworthy too is the fact that accused-appellant’s house appeared to be a few minutes’ ride from his place of work, thus rendering his presence at the scene of the crime physically possible. An unsubstantiated alibi cannot overcome positive and credible evidence pointing to accused as the perpetrator of the crime.[20] From the foregoing evidence, it was clearly established beyond reasonable doubt that accused-appellant was responsible for the killing of Michael Oris on April 28, 1988. The question is whether the crime committed by accused-appellant was murder or homicide. Accusedappellant insists that the trial court erred in convicting him of murder, in the absence of any qualifying circumstances. Indeed a look at the trial court decision reveals that the trial court judge failed to explain why the offense was qualified to murder. Although the information explicitly alleged that the crime was committed with treachery and evident premeditation, the trial court in its decision was silent about the presence or absence of these qualifying circumstances. The trial court failed to specifically discuss the qualifying circumstances or any other modifying circumstance in the body or in the dispositive portion of the decision. Such a decision does not conform to the requirement of the Rules of Court that a judgment of conviction shall “state the legal qualifications of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending the commission thereof, if there are any.” [21] Nevertheless, such lapse is not fatal to the validity of the decision.[22] An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the appellate court to correct any error as may be found in the appealed judgment, whether it is made the subject of assignment of errors or not.[23] Thus, we can review the evidence on record to evaluate if there is sufficient basis for convicting accused-appellant of murder or of homicide. The essence of treachery is the swift and unexpected attack on an unarmed victim without the slightest provocation on the part of the victim.[24] Treachery is appreciated when the following conditions are present: 1) the EMPLOYMENT of means of execution that gives the person attacked no opportunity to defend himself or to retaliate, and 2) the means of execution be deliberately and consciously adopted. [25] In this case, the victim was peacefully walking along the ricefield with his friends, when accused-appellant, with the use of a long firearm and without warning, fired upon the unarmed teenagers giving the latter no opportunity to repel the aggression or defend themselves. Thus, the manner in which the victim was killed showed the presence of treachery in the commission of the crime. With respect to evident premeditation, we find this circumstance lacking in this case. For evident premeditation to be appreciated as an aggravating circumstance, there must be proof, as clear as the evidence of the crime itself, of the following elements: 1) the time when the offender determined to commit

the crime; 2) an overt act manifestly indicating that he clung to his determination; and 3) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act.[26] Neither the record nor the appealed decision mentions the existence of the foregoing essential elements for a positive finding of evident premeditation. When it is not shown as to how and when the plan to kill was hatched or what time had elapsed before it was carried out, evident premeditation cannot be considered.[27] Considering that treachery qualified the crime, accused-appellant is guilty of murder. At the time the crime was committed on April 28, 1988, the penalty prescribed for murder was reclusion temporal in its maximum period to death.[28] In the absence of any mitigating or aggravating circumstances, the penalty shall be imposed in its medium period, which is reclusion perpetua.[29] Regarding the award of damages, we note that the lower court only awarded fifty thousand pesos (P50,000.00) as moral damages. We have uniformly awarded the amount of fifty thousand pesos (P50,000.00) as civil indemnity, without need of further proof other than the fact of death as a result of the crime and proof of accused-appellants’ responsibility therefor.[30] The amount of forty two thousand one hundred seventy three (P42,173.00) pesos shall be awarded as actual damages for the actual expenses incurred by the family of the deceased as evidenced by receipts. WHEREFORE, the Court hereby AFFIRMS with MODIFICATION the decision of the Regional Trial Court, Makati, Branch 136, in Criminal Case No. 88-1631, convicting accused-appellant Orlando Herrera de Leon of murder and sentencing him to reclusion perpetua. The Court orders accused-appellant to pay the heirs of the victim the amount of fifty thousand (P50,000.00) pesos as moral damages, fifty thousand (P50,000.00) pesos as civil indemnity and forty-two thousand one hundred seventy-three (P42,173.00) pesos as actual damages. Costs against accused-appellant. SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 102063 January 20, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO DE LA CRUZ y GOMEZ @ BLUT, accused-appellant. The Solicitor General for plaintiff-appellee. Francisco Sanchez III and Public Attorney's Office for accused-appellant. DAVIDE, JR., J.: Rolando de la Cruz y Gomez @ Blut was charged with the crime of Robbery with Homicide before the Regional Trial Court (RTC) of Manila in an Information filed on 8 November 1988, the accusatory portion of which reads: xxx xxx xxx That on or about October 1, 1988, in the City of Manila, Philippines, the said accused, conspiring and confederating with others whose true names, identities and present whereabouts are still unknown, and helping one another, by means of craft, that is, while on board a passenger jeep and pretending to be passengers thereof, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation, to wit: by then and there pointing their bladed weapons and firearm and forcibly taking, robbing and carrying away the following from ABEL REQUEJO Y REFE: Citizen wristwatch — P800.00, one (1) wallet containing P220.00, one (1) Saudi Riyal, PRC ID, driver's license and other important papers, all valued at P1,020.00 plus, belonging to said ABEL REQUEJO Y REFE, against his will to the damage and prejudice of said owner in the aforesaid amount of P1,020.00, Philippine currency; that by reason of and on the occasion of the said robbery, the said accused, in pursuance of their conspiracy and with treachery, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault an (sic) use personal violence upon the person of VENANCIO ESTACIO Y PANELO by stabbing him twice with a bladed weapon on the chest, thereby inflicting upon him stab wounds which are necessarily fatal and mortal and which were the direct and immediate cause of his death thereafter. Contrary to law. 1

The case was docketed as Criminal Case No. 88-67914 and was raffled off to Branch 5 of the said court. Upon his arraignment on 4 January 1989, 2 Rolando de la Cruz, hereinafter referred to as the Appellant, entered a plea of not guilty. Trial on the merits ensued thereafter. The prosecution presented as its witnesses P/Cpl. Salvador Fradejas, Sotero Dionisio, Abel Requejo, Catalina Dionisio and Dr. Maximo Reyes. Appellant took the witness stand in his defense and presented Rita dela Cruz, his mother, as his lone witness. On 21 September 1990, the trial court promulgated its decision, 3 dated 17 September 1990, the dispositive portion of which reads: WHEREFORE, finding the accused ROLANDO DELA CRUZ y GOMEZ GUILTY beyond reasonable doubt of the crime of Robbery with Homicide, sentences (sic) him to suffer the penalty of LIFE IMPRISONMENT; to indemnify the heirs of deceased Venancio Estacio y Panelo the sum of THIRTY THOUSAND PESOS (P30,000.00) and pay the costs. SO ORDERED. 4 The conviction is based on the evidence for the prosecution which is summarized by the trial court as follows: Sotero Dionisio is a Jeepney driver married to Catalina Asajar Dionisio. The jeepney that he drives belongs to his father-in-law and plies the Punta-Quiapo route. On October 1, 1988, at about 6:30 to 7:00 in the evening, as was his habit, he was driving the said jeepney accompanied by his wife, Catalina who was then seated beside him in the front seat while picking-up passengers at P. Sanchez Street in front of the Lourdes Hospital heading towards Sta. Mesa-Quiapo. According to Dionisio, there were about fifteen (15) passengers beside (sic) his wife. The jeepney was travelling at its usual pace, when he heard one (sic) of the passengers was pushed outside and fell overboard. That the thrown (sic) passenger rolled on the road. Seeing the fall of the passenger, he tried to stop the jeepney, but a male passenger seated at his back poked a gun at his head and shouted to (sic) go faster or he will blow his head off. At the same time, the man hanging at the rear running board pointed a knife at the passengers. According to him, there were other members of the holdupper (sic) who were seated on the rear passenger seats who (sic) armed with knives collected from the passengers their valuables. That Dionisio was ordered to stop the jeepney in front of the NCBA where the five (5) who partook in the hold-up where (sic) the same men who, together boarded his Jeepney near the foot of the Lambingan Bridge, alighted. That he came to know, aside from the hold-up, committed in his jeepney, a (sic) passenger while in the process of being divested of his valuable (sic) was stabbed by the holduppers. With the wounded passenger, he immediately proceeded to the hospital. Abel Requejo, an engineer who was a passenger of the said jeepney during the hold-up testified that he was seated at one of the back seats. That when the hold-up was announced, he was told not to make a false move, while the holdupper's knives were pointed at the passengers including himself, he was divested of his Seiko gold watch worth Eight Hundred Pesos (P800.00), Two Hundred Pesos (P200.00) cash and other valuables by a man pointing a knife at him. He identified the man as accused Rolando dela Cruz. He claimed, the (sic) light inside the jeepney was bright at the time of the hold-up. He also said that the other passengers of the jeepney were divested of their valuables, and that, one of the passengers while being robbed by the holduppers, was stabbed and fatally wounded. Likewise, Mrs. Catalina Asajar Dionisio, wife of driver Sotero Dionisio, who at the time of the hold-up was seated at the front seat beside her driver-husband, identified accused Rolando dela Cruz as one of the holduppers who divested the passengers of the jeepney their (sic) valuables. That later, after the holduppers had alighted from the jeepney, they proceeded to bring the wounded passenger at (sic) the Unciano General Hospital. The patient Venancio Panelo Estacio the jeepney passenger and one of those who were robbed of their valuables, and the one stabbed was declared dead-on-arrival. The cadaver was later brought to the International Funeral Homes at Sta. Mesa, Manila where, it was autopsied the following day by Dr. Maximo Reyes. Dr. Reyes after conducting an autopsy of the cadaver, issued a written autopsy report (Exhibit "E"), a sketch describing the two (2) stab wounds on the chest (Exhibit "E-1" and "F1") as the first wound on the chest, not fatal. The second wound also on the chest Exhibit "E-2" and "F-2" according to him was a fatal wound. That the wound was inflicted while the victim was stooping facing the assailant. He also identified the Certificate of Identification of Victim Venancio Panelo Estacio, Exhibit "D". 5 Upon the other hand, appellant's version is summarized by the trial court in this manner: Accused Rolando dela Cruz claimed that he is a construction worker at the New Panaderos Street, Sta. Ana, Manila. That he was EMPLOYED by one Eddie San Jose. He likewise claimed, that on October 1, 1988, he reported for work. That at about 5:00 in the afternoon, he left work and proceeded straight for home. According to him, he arrived at his house which he shared with his mother Rita, at 3290 V. Mapa Street, Sta.

Cruz, Manila about (sic) 6:30 in the evening. From that time, up to the following morning, he never left his house. He denied participation to (sic) the robbery homicide he is being charged of (sic). According to him, Pat. Intia was angry at him because Pat. Intia is the compadre of one Erning Manalo the one who stabbed him and as a result thereof, a case was filed by him against said Erning Manalo. That Pat. Intia attributed to him all the crimes and petty crimes committed in their locality. Pat. Intia is a neighbor of his, his house only (sic) some sixty (60) meters away from each other (sic). That he was able to talk to Engineer Requejo, one of the complainant-witnesses against him, and he claimed to have been told Requejo testified (sic) against him because he was a trouble-maker (sic) in their place. In cross-examination however, he admitted not knowing any of the complainant-witnesses mentioned. He likewise admitted that his house where he claimed he was at the time of the incident was only sixty (60) meters away from the place of the incident, and that, inspite of its proximity he claim (sic) not to know that robbery-hold-up (sic) did occur in the place; that he came to know about it when he was arrested on November 22, 1988. His mother Rita dela Cruz collaborated the testimony of his (sic) son accused Rolando dela Cruz. She also claimed her (sic) son at the time he was arrested was pistol-whipped and maltreated by Pat. Intia and his police companion. 6 We find the above summation of the evidence to be amply supported by the transcripts of the stenographic notes of the testimonies of the witnesses presented by the parties. The trial court gave full faith and credit to the version of the prosecution. It could not believe that Abel Requejo, an educated man, and Mrs. Catalina Dionisio, the wife of the driver of the jeep which was held up, whose testimonies were clear and convincing, would lie to the court. It likewise ruled that since a conspiracy existed among the hold-uppers, each shall suffer the consequences of their criminal acts, including the homicide committed during the hold-up. It rejected the appellant's version which it described as a mere denial corroborated by the "loyalty vote" of his mother. 7 Unable to accept the verdict, the appellant filed his notice of appeal on 25 September 1990. 8 In its Order of 26 September 1990, the trial court gave due course to the appeal, but erroneously directed the elevation of the case records to the Court of Appeals. 9 The latter, however, transmitted the same to this Court on 12 November 1991. 10 We accepted the appeal 11 on 20 November 1991. In the Brief for the Accused-Appellant, 12 submitted by the Public Attorney's Office, only one (1) error is assigned: The trial court gravely erred in convicting Accused-Appellant Rolando dela Cruz despite the weakness and lack of concreteness of the prosecution's evidence on the question of whether or not the accused-appellant is the author of the crime charged. Clearly, the issue raised is factual and involves the credibility of the witnesses, a matter addressed to the trial court 13 because it is in a better position to decide such questions, having heard the witnesses and observed their deportment and manner of testifying during the trial. 14 Hence, its findings on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal in the absence of any clear showing that the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which would have affected the result of the case. 15 That absence is all too evident in the instant case. The identity of the appellant and his participation in the daring robbery were established beyond doubt principally by the testimonies of Abel Requejo and Mrs. Catalina Dionisio. The appellant sought to discredit the evidence for the prosecution as regards his identification on the basis of the alleged weakness of the testimony of the driver of the passenger jeepney, Sotero Dionisio, who admitted that since he was driving the vehicle and managed only a quick glance at the mirror, he could not state what role the appellant played. The appellant likewise challenges the testimony of Abel Requejo which allegedly did not actually show that the latter positively saw the face of the former. The very portions of the transcripts of the stenographic notes of the testimonies of the said witnesses, reproduced by the appellant in his Brief to prove the foregoing conclusions, establish a contrary conclusion. Although Sotero admitted that he was driving the jeepney throughout the incident, it is clear from his testimony that although he was unable to state the specific role played by the appellant during the hold-up, he (Sotero) was able to identify the latter as one of the five (5) hold-uppers inside the jeepney. Thus, even from the portion quoted by the appellant, We have the following question propounded to and answer given by Sotero: FISCAL BAUTISTA (to witness). Q So, in other words, will you be able to tell the court, what role the accused played actually in side the jeepney from the time the gun was poked to your head up to the time that you stopped? A I cannot really state what role he played, but I saw him there inside the jeepney. 16(Emphasis supplied) xxx xxx xxx

The defense was quite unfair to this Court in reproducing the above-quoted portion for only that segment favorable to the appellant was cited. It is to be observed that on the very page containing the above-quoted portion is to be found Sotero's categorical declaration that the appellant was indeed one of the five (5) holduppers. Thus: FISCAL BAUTISTA Q What about the man holding a gun, was he in the group? A Yes, sir. Q Now, would you be able to identify any of those five men? A Yes, sir. Q Who among the five men can you identify? A I can identify at least two if I can see them. Q Now, will you look around inside the courtroom and tell the Honorable Court if any of those five men is (sic) inside the court room today? A Yes, sir. Q Will you please look around and point to the man? INTERPRETER: Witness pointing to a person who answers in (sic) the name of Rolando dela Cruz. 17(Emphasis supplied) Aside from this, the following answers of witness Requejo on cross-examination — also quoted in the Brief — are erroneously interpreted to mean that the said witness did not see the appellant's face: FISCAL BAUTISTA (to witness): Q So, you are saying that the accused poked a knife at you while you were facing one another? A Yes, sir. xxx xxx xxx Q So, while you were doing these, you are (sic) more concentrated in looking at your watch and your wallet? A Yes, sir. Q So, you have no time in looking (sic) at that person poking the knife? A Yes, sir. 18 We are at a loss as to how these questions and answers could have been misunderstood and used to support the appellant' s conclusion. It is clear that the said witness was "facing" the appellant during the hold-up. The answer to the last question reproduced above confirms the fact that indeed, the witness was facing the appellant and therefore, had an unobstructed view of his face. The identification of the appellant as one of the hold-uppers was further bolstered by the testimony of Catalina Dionisio who declared thus: FISCAL BAUTISTA (to witness) Q With respect to those five companions together with that man, could you see whether anyone of them is now present in this court? A Yes, sir. Q Will you point to him if anyone of those persons who were divesting the passengers is inside the court room now? A Yes, sir. Q Will you please point to him? INTERPRETER: Witness pointing to a person who answers in (sic) the name of Rolando dela Cruz. 19 In the light of his being positively identified as one of the hold-uppers, the appellant's defense of alibi, which the trial court erroneously characterized as denial, 20 must necessarily fail. Deeply rooted in our criminal jurisprudence is the rule that alibi is the weakest of all defenses for it is easy to fabricate and difficult to disprove; 21 it cannot prevail over the positive identification of the accused by the witnesses. 22 Moreover, for that defense to prosper, it in not sufficient that the accused prove that he was somewhere else when the crime was committed; he must also show that it was physically impossible for him to have been at the scene of the crime at the time the crime was committed. 23 That physical impossibility was not present in this case. Appellant admitted in open court that he was in his house — a mere sixty (60) meters from the scene of the incident — at the time the crime was committed. 24 Given such proximity, it was not only possible but also quite probable for him to have been at the crime scene at the time of the crime's commission.

We also agree with the trial court that the crime committed by the appellant and his confederates, whose identities remain unknown, is robbery with homicide (robo con homicidio) defined and penalized under Article 294(l) of the Revised Penal Code which reads: Art. 294. Robbery with violence against or intimidation of persons — Penalties. — Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 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. xxx xxx xxx To sustain a conviction for robbery with homicide, it is necessary that the robbery itself be proven as conclusively as any essential element of a crime. 25 There is not the slightest doubt in Our minds that the appellant and his unidentified cohorts EMPLOYED violence against and intimidation of persons to consummate their criminal intent to take away, for personal gain, the personal property of the passengers of the jeepney. One of them used a bladed weapon to stab to death one of the victims, Venancio Estacio. The others also used bladed weapons and a firearm to intimidate and threaten the other passengers into turning over their personal property. One of the victims, Abel Requejo, was divested of a Seiko gold watch worth P800.00, cash of P200.00 and other valuables and important papers. Conspiracy among the perpetrators was duly proven. Pretending to be passengers, they boarded the jeepney at the same time near the foot of the Lambingan Bridge. When the hold-up was announced, each moved with precision in pursuit of an assigned task — obviously earlier agreed upon. One poked his gun at the head of the driver while the rest pointed their knives at the passengers. At the same time, they divested the said passengers of their valuables. They all alighted from the jeepney at the same time with the loot. These acts, taken together, are sufficient to establish the existence of a common design among the appellant and his companions to commit the offense charged. Otherwise stated, such acts showed nothing less than a joint purpose, and design, and a concerted action and community of interest; these establish beyond reasonable doubt the existence of conspiracy. 26 Direct proof is not essential to prove conspiracy; 27 it may be shown by acts and circumstances from which may logically be inferred the existence of a common design, 28 or may be deduced from the mode and manner in which the offense was perpetrated. 29 That a homicide was committed on the occasion of the robbery is equally beyond dispute. Venancio Estacio was stabbed twice in his chest at the time he was divested of his personal property. He was pronounced dead on arrival upon reaching the hospital. For robbery with homicide to exist, it is enough that a homicide would result by reason or on the occasion of the robbery. 30 The rule is likewise settled that when homicide takes place as a consequence or on the occasion of a robbery, all those who took part in the robbery are guilty as principals of the crime of robbery with homicide unless proof is presented that the accused tried to prevent the killing. 31 There is no showing that the appellant tried to prevent the stabbing of Venancio. Appellant then is liable for the crime of robbery with homicide under Article 294(l) of the Revised Penal Code. The crime was committed with the aggravating circumstances of band 32 and craft. 33 While the first is not specifically alleged in the information, it was proven without objection on the part of the defense. Hence, it can be properly appreciated against the appellant. 34 An offense shall be deemed to have been committed by a band whenever more than three (3) armed malefactors shall have acted together in the commission thereof. 35 In the instant case, it was duly proven that there were five (5) armed malefactors. It should be emphasized here that the circumstance of band is inherent in brigandage and in robbery in band; if, however, the information does not charge these offenses, as in this case, then such circumstance can only be appreciated as a generic aggravating circumstance. 36 Craft is present because the appellant and his co-conspirators pretended to be bona fide passengers of the jeepney so as not to arouse any suspicion as regards their criminal scheme to commit the robbery. 37 The penalty for robbery with homicide is composed of two (2) indivisible penalties, namely reclusion perpetua to death. Taking into account the two (2) generic aggravating circumstances of band and craft, and pursuant to the rule laid down in the second paragraph, Article 63 of the Revised Penal Code, the greater penalty — death — should be imposed. In view, however, of Section 19(l), Article III of the 1987 Constitution which prohibits the imposition of the death penalty, and in view of the rule laid down in People vs. Muñoz, 38 the appropriate imposable penalty should be reclusion perpetua. The trial court erroneously imposed the penalty of life imprisonment. This Court has ruled time and again that the penalty of reclusion perpetua is not synonymous with life imprisonment for the reason that the latter does not carry with it accessory penalties and does not have a definite duration. Furthermore, it is not the

penalty provided by law for the crime of robbery with homicide. 39 It is extremely exasperating to find some judges still unable to heed Our pronouncement on this matter. Finally, since every person criminally liable for a felony is also civilly liable, 40 the trial court should also have made a disposition on the appellant's civil liability to Abel Requejo, the passenger who was divested of his watch and cash. IN VIEW OF ALL THE FOREGOING, the appealed decision of the Regional Trial Court in Criminal Case No. 8867914 is hereby AFFIRMED subject to the following modifications: (a) the penalty should be reclusion perpetua, instead of life imprisonment, (b) consistent with the current policy of this Court, the indemnity should be increased from P30.000.00 to P50,000.00 and (c) the appellant is hereby ordered to return to Abel Requejo the Seiko gold watch — if that is no longer possible, the appellant should indemnify the latter its value in the sum of P800.00 — and pay the sum of P200.00 as reimbursement for the MONEY taken from the said victim. Costs against the appellant. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 149368 April 14, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs. FRANCISCO DACILLO alias DODOY AND JOSELITO PACOT y IBARRA (case provisionally dismissed),accused, FRANCISCO DACILLO alias DODOY, appellant. DECISION CORONA, J.: Before us on automatic review is the decision1 of the Regional Trial Court of Davao City, Branch 31, in Criminal Case No. 45,283-2000 convicting appellant Francisco Dacillo y Timtim alias Dodoy of the crime of murder and sentencing him to suffer the penalty of death. Appellant Dacillo together with Joselito Pacot y Ibarra were indicted for murder in an information that read: The undersigned accuses the above-named accused of the crime of Murder, under Art. 248 of the Revised Penal Code, as amended by R.A. 7659, committed as follows: That on or about February 6, 2000, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, conspiring, confederating together and helping one another, with treachery and evident premeditation, and with intent to kill, willfully, unlawfully and feloniously attacked, assaulted and stabbed one Rosemarie B. Tallada with a bladed weapon, thereby inflicting upon the latter mortal wounds which caused her death. That the commission of the foregoing offense was attended by the aggravating circumstance of abuse of superior strength. CONTRARY TO LAW.2 The case against appellant’s co-accused, Joselito Pacot, was provisionally dismissed for lack of sufficient evidence to identify him with certainty. Appellant was arraigned on February 21, 2001 and, assisted by counsel, pleaded not guilty. Pre-trial was conducted on March 1, 2001 and trial ensued thereafter. To establish appellant’s guilt, the prosecution presented the following witnesses: Charlita Tallada, the victim’s mother; Patricia Turlao, the victim’s aunt; appellant Dacillo’s neighbors, Jovelyn Dagmil, Augusto Cesar Arara, Roche Abregon, Resna Abregon, Allan Castanares, Jupiter Campaner; police officers SPO2 Rodolfo Taburda and SPO1 Avelino Alcobus, and medico-legal officer Dr. Danilo P. Ledesma. The facts, as established by the prosecution witnesses’ collective testimonies, follow. The victim, seventeen-year-old Rosemarie B. Tallada, was last seen alive at dusk on February 6, 2000, on the bridge near appellant’s house at Purok No. 3, New Society Village, Ilang, Davao City. Around 7:45 p.m. that evening, witness Jovelyn Dagmil, who was living with her aunt in the house adjacent to appellant’s, was looking for her cousin when she saw the victim Rosemarie on the bridge. Because it was drizzling, she invited Rosemarie inside their house but the latter declined and told her she was waiting for someone.3

After a while, Jovelyn heard a man inside appellant’s house calling "Psst, psst . . ." Thinking the call was meant for her, she turned but instead saw Rosemarie walking towards and entering appellant’s house. 4 Not long after Rosemarie went inside the house, a struggle was heard therein. Witnesses Roche and Resna Abregon, who were in the adjacent house singing with a karaoke machine, suddenly felt the floor shaking as if a scuffle was going on at the other side of the wall. The houses were built on stilts above the seashore, adjoining one another with mere wooden partitions in between. Roche Abregon peeped through a hole on the wall and saw appellant and another man grappling with a woman who was gagged with a handkerchief.5 When Roche saw appellant choking the woman, she informed her aunt about the commotion in appellant’s house but the aunt brushed it aside as a simple family quarrel. 6 For a while they heard the sound of a woman being beaten up. Then everything became quiet. Later that evening, they saw appellant leaving his house.7 The following day, February 7, 2000, at around 8:00 a.m., appellant was seen entering his house carrying lumber and screen.8 He was observed going in and out of his house several times, each time carefully locking the gate as he left.9 At around 9:00 a.m., appellant was seen with ready-mixed cement in a plastic pail and, when asked what he was going to do with the cement, replied that it was for the sink he was constructing. 10 Later, appellant entrusted a bag of woman’s personal belongings to barangay tanod Allan Castañares and told the latter that it belonged to his woman companion. He allegedly could not bring it home because his wife might see them.11 By February 11, 2000, neighbors started smelling the rotten odor of Rosemarie’s already decomposing body.12 At 5:00 p.m. the same day, witnesses Roche, Resna, and Rachel were gathering seashells under appellant’s house when they saw droplets of blood and pus dripping from appellant’s comfort room. They immediately reported it to their aunt who in turn instructed her husband to get a stick and poke the sacks covering the comfort room. However, the husband instead climbed up the house and was greeted by the stink emanating from the corner where he saw a tomb-like structure. They immediately reported the matter to barangay officials who called the police.13 At about 10:00 p.m., policemen arrived at appellant’s house, accompanied by his wife, and forcibly opened the lock. They proceeded to where the tomb was located. When cracked open, the tomb revealed the decomposing body of a woman.14 The corpse was brought to the Rivera Funeral Parlor where it was identified by the victim’s mother Charlita Tallada and aunt Patricia Turlao as that of Rosemarie, through the keloid scar on her forearm. Dr. Danilo Ledesma conducted an autopsy on Rosemarie’s remains. His necropsy report revealed that Rosemarie died from a stab wound in the abdomen. The report further disclosed that she suffered contusions in the anterior chest wall and her right hand; an incised wound on her left middle finger; a stab wound on the left side of the face and fractures on the 2nd, 3rd, 4th, 5th, 6th and 7th ribs on her side. 15 Dr. Ledesma testified that the wounds suffered by Rosemarie indicated that she put up a struggle and the wounds were inflicted before her death.16 In his defense, appellant admitted complicity in the crime but minimized his participation. Appellant alleged that he only held down Rosemarie’s legs to prevent her from struggling and, after the latter was killed by another man he identified as Joselito Pacot, he encased the corpse in cement. He claimed that Pacot, a co-worker at Davao Union Cement Corporation (DUCC), was looking for a house where he and his girlfriend Rosemarie could spend the night. He offered his brother’s house which was under his care. In the evening of February 6, 2000, he and Joselito Pacot brought Rosemarie to the house at Purok No. 3, New Society Village, Ilang, Davao City. After accompanying the couple there, he went home to take supper. Later that evening, he returned to the house with the bottle of Sprite Pacot had ordered. When he arrived, Pacot and Rosemarie were already grappling with each other and Pacot was strangling the girl. He told Pacot to stop but instead of heeding him, the latter ordered him to close the door. Pacot told appellant that he was going to be implicated just the same so he closed the door as ordered and helped Pacot "(hold) the feet of the woman" as "her feet kept hitting the walls."17 The two men stopped only when Rosemarie was already motionless. Pacot wanted to dump the body into the sea but appellant told him it was low tide. Appellant then suggested that they entomb the body in cement for which Pacot gave appellant P500.

Pacot left the house at dawn the following day, February 7, 2000. At past 10:00 a.m., appellant brought the concrete mixture and cast the dead body in cement. After finishing the job in the afternoon of that day, appellant reported for work at DUCC. When the body was discovered in the evening of February 11, 2000, appellant immediately left for Cebu City, arriving there the next day, February 12, 2000. He stayed in Cebu City until his arrest the following year. On May 31, 2001, the trial court rendered judgment finding appellant guilty of murder and imposed upon him the supreme penalty of death: WHEREFORE, this Court finds the accused Francisco Dacillo GUILTY beyond reasonable doubt of the crime of MURDER for the death of Rosemarie Tallada, as defined and penalized under Art. 248 of the Revised Penal Code, as amended. Considering the aggravating circumstance of recidivism with no mitigating circumstance to offset the same, he is hereby sentenced to the extreme penalty of DEATH, He is further ordered to indemnify the heirs of the offended party in the amount of P50,000.00, plus the sum of P50,000.00 as moral damages, and the sum of P50,000.00 as exemplary damages. His immediate confinement to the national penitentiary is hereby ordered. Costs de oficio. SO ORDERED.18 Thus, this automatic review. In his brief, appellant raises the following errors allegedly committed by the trial court: I THE COURT A QUO GRAVELY ERRED IN FINDING THE APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. II THE COURT A QUO GRAVELY ERRED IN AWARDING THE HEIRS OF THE OFFENDED PARTY THE AMOUNT OF PHP50,000.00, WHICH APPEARS AS PAYMENT FOR ACTUAL DAMAGES.19 Appellant admitted that he had a hand in the killing of Rosemarie but attempted to downgrade his participation in the crime by claiming he only held Rosemarie’s legs as Pacot was strangulating her. The rule is that any admission made by a party in the course of the proceedings in the same case does not require proof to hold him liable therefor. Such admission may be contradicted only by showing that it was made through palpable mistake or no such admission was in fact made. There was never any such disclaimer by appellant. Moreover, despite appellant’s self-serving, exculpatory statement limiting his involvement in the crime, all circumstances pointed to his guilt. His declaration faltered in the face of the testimonies of eyewitnesses positively identifying him as one of the two men who were with Rosemarie when she was killed. Witness Roche Abregon pointed to appellant as the one who strangled Rosemarie. He was established to be inside the house at the time the witnesses heard a woman being battered. Thus, assuming for the sake of argument that Pacot was the mastermind, appellant’s admission that he participated in its commission by holding Rosemarie’s legs made him a principal by direct participation. Two or more persons taking part in the commission of a crime are considered principals by direct participation if the following requisites are present: 1. they participated in the criminal resolution and 2. they carried out their plan and personally took part in its execution by acts which directly tended to the same end.20 Both requisites were met in this case. Two or more persons are said to have participated in the criminal resolution when they were in conspiracy at the time of the commission of the crime. To establish conspiracy, it is not essential that there be proof of the previous agreement and decision to commit the crime, it being sufficient that the malefactors acted in concert pursuant to the same objective. 21 The prosecution was able to prove appellant’s participation in the criminal resolve by his own admission that, right after he was told by Pacot to close the door, he held down Rosemarie’s legs. He was pinpointed as the one who throttled the victim. He admitted that they only stopped when they were sure that Rosemarie was already dead. The two men planned how to dispose of the victim’s body; it was in fact appellant’s idea to pour concrete on the body, prevailing over Pacot’s suggestion to just dump the body into the sea. It was appellant himself who encased the body in cement and made sure that there were no leaks from which foul odor could emanate. He was a conspirator in the killing and, whether or not he himself did the strangling or the stabbing, he was also liable for the acts of the other accused.

It is well-settled that a person may be convicted for the criminal act of another where, between them, there is conspiracy or unity of purpose and intention in the commission of the crime charged. 22 Conspiracy need not be proved by direct evidence of prior agreement on the commission of the crime as the same can be inferred from the conduct of the accused before, during, and after the commission of the crime showing that they acted in unison with each other pursuant to a common purpose or design.23 We are convinced beyond doubt of the joint and concerted effort between appellant and the man he identified as Pacot in the killing of Rosemarie. Appellant likewise contends that the trial court erred in ruling that the presence of the aggravating circumstance of abuse of superior strength qualified the killing to murder. He contends that the qualifying circumstance of abuse of superior strength was not specifically alleged in the information. Nothing can be farther from the truth. A cursory reading of the information reveals that appellant was sufficiently informed of the charges against him, including the use of superior strength in killing the hapless and defenseless female victim. The aggravating circumstance of abuse of superior strength necessitates a showing of the relative disparity in the physical characteristics of the aggressor and the victim such as age, gender, physical size and strength. We agree with the trial court that the killing of Rosemarie was committed with abuse of superior strength. As found by the court a quo, two grown-up men against a young fragile woman whose ability to defend herself had been effectively restrained revealed a shocking inequality of physical strength. The victim was much weaker in constitution and could not have possibly defended herself from her stronger assailants. 24 Such disparity was manifest in the contusions in the chest and hands, wounds on the fingers, a stab wound on the left side of the face and multiple fractures in the ribs of the victim.25 The abuse of superior strength was obvious in the way Rosemarie was mercilessly beaten to a pulp. The killing of Rosemarie was thus correctly qualified to murder by the abuse of superior strength, a circumstance specifically pleaded in the information and proved beyond reasonable doubt. The Court, however, finds that the trial court erred in imposing the death penalty on the ground that appellant admitted during re-cross examination that he had a prior conviction for the death of his former livein partner. The fact that appellant was a recidivist was appreciated by the trial court as a generic aggravating circumstance which increased the imposable penalty from reclusion perpetua to death. In order to appreciate recidivism as an aggravating circumstance, it is necessary to allege it in the information and to attach certified true copies of the sentences previously meted out to the accused. 26 This is in accord with Rule 110, Section 8 of the Revised Rules of Criminal Procedure which states: SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (Emphasis supplied) The aggravating circumstance of recidivism was not alleged in the information and therefore cannot be appreciated against appellant. Hence the imposable penalty should be reduced to reclusion perpetua. Regarding the award of P50,000 as civil indemnity to the heirs of the victim, appellant claims that said amount was awarded by the trial court as payment for actual damages. This claim is misleading. As aptly pointed out by the Solicitor General, the amount was granted by the trial court by way of indemnity ex delicto to compensate for the death of the victim which prevailing jurisprudence fixes at P50,000.27 The award of such indemnity requires no proof other than the death of the victim and the accused’s responsibility therefor.28 The award of P50,000 as moral damages is proper, supported as it was by the testimony of Charlita Tallada, the victim’s mother, that Rosemarie’s death caused her immeasurable pain.29 In addition, the Court awards P25,000 in temperate damages, said amount being awarded in homicide or murder cases when no evidence of burial and funeral expenses is presented in the trial court. 30 With regard to the award of exemplary damages, the Civil Code of the Philippines provides: ART. 2229. Exemplary or corrective damages are imposed, by way of example of correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. In People vs. Catubig,31 we explained that:

The term "aggravating circumstances" used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code. Thus, the award of exemplary damages is warranted under Art. 2230 of the Civil Code in view of the presence of the aggravating circumstance of abuse of superior strength. Imposition of exemplary damages is also justified under Art. 2229 of the Civil Code in order to set an example for the public good.32 For this purpose, we believe that the amount of P25,000 may be appropriately awarded. WHEREFORE, the assailed judgment in Criminal Case No. 45,283-2000 of the Regional Trial Court of Davao City, Branch 31, is hereby AFFIRMED with MODIFICATION. Appellant Francisco Dacillo y Timtim alias Dodoy is declared guilty beyond reasonable doubt of murder as defined and penalized under Article 248 of the Revised Penal Code. There being neither aggravating nor mitigating circumstances, appellant is hereby sentenced toreclusion perpetua and is further ordered to indemnify the heirs of Rosemarie Tallada the sum of P50,000 as civil indemnity, P50,000 as moral damages, P25,000 as temperate damages and P25,000 as exemplary damages. Costs de oficio. SO ORDERED. THIRD DIVISION [G.R. No. 102367. October 25, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABUNDIO ALBARIDO and BENEDICTO IGDOY, accused-appellants. DECISION SANDOVAL-GUTIERREZ, J.: Before us is the appeal from the decision[1] of the Regional Trial Court, Branch 12, Ormoc City, in Criminal Case No. 3138-0, “People of the Philippines vs. Abundio Albarido and Benedicto Igdoy” finding them guilty beyond reasonable doubt of multiple murder. The information against the accused reads: “That on or about the 15th day of June, 1987, in the Municipality of Kananga, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one another, with treachery and evident premeditation, with intent to kill, and of nighttime and abuse of superior strength, did, then and there willfully, unlawfully and feloniously attack, assault, stab, hack, shot and wound CELSO LARBO, DANILO PALACIO and LAURO PALACIO, with the use of guns and bolos, which the accused had provided themselves for the purpose, thereby inflicting various gunshot, stabbing and hacking wounds on the different parts of the victims’ bodies (please see attached medical certificates), which caused their death. CONTRARY TO LAW.” Only accused Abundio Albarido and Benedicto Igdoy, now appellants, were apprehended. When arraigned, they entered a plea of not guilty. The version of the prosecution, as narrated by the Solicitor General in the appellee’s brief, [2] is as follows: “At about 7:00 p.m. on June 15, 1987, a group of men composed of Celso Larbo, Danilo Palacio, and Lauro Palacio, together with Maximo Peña, Melchor Palacio and Jose Palacio, were walking single file on a trail measuring about fifteen (15) inches wide in Sitio Bislog, Barangay Sto. Domingo, Kananga, Leyte (tsn, pp. 7, 8, 10, 34, Peña, October 17, 1988; tsn, pp. 8, 9, Jose Palacio, June 13, 1989; tsn, pp. 7-9, Melchor Palacio, June 15, 1989).

Without warning, all of them were waylaid by another group composed of Aquilino Canaway, Elias Merced and appellants (tsn, pp. 9, 10, Pena, October 17, 1988). They were recognized by Maximo Peña and Jose Palacio because Lauro Palacio was able to focus the flashlight he was then holding on the faces of appellants (tsn, pp. 10, 30, Peña, October 17, 1988; tsn, p. 13, Jose Palacio, June 13, 1989; tsn, p. 11, Melchor Palacio, June 15, 1989). Guns were fired. Among those hit in the first volley were Celso Larbo (tsn, p. 35, Peña, October 17, 1988; tsn, p.12, Jose Palacio, June 13, 1989; tsn, p. 9, Melchor Palacio, June 15, 1989). The other men scampered for safety in the tall grasses nearby (tsn, p. 11, Peña, October 17, 1988; tsn, p. 10, Jose Palacio, June 13, 1989). After the shooting, appellants approached Celso Larbo and mercilessly hacked him with bolos many times (tsn, p. 11, Peña, October 17, 1988). Danilo Palacio and Lauro Palacio were likewise attacked by appellants who mercilessly hacked and stabbed them (tsn, p. 11, Peña, October 17, 1988; tsn, pp. 12, 13, 15, Jose Palacio, June 13, 1989). Appellants’ companions, Aquilino Canaway and Elias Merced, on the other hand, acted as guards to head off any attempt by anyone minded to come to the aid of the victims (tsn, p. 12, Peña, October 17, 1988). All the injured victims subsequently died (tsn, pp. 16, 17, Melchor Palacio, June 15, 1989; tsn, pp. 7, 25, 26, 30, Cam, June 3, 1988).” Dr. Roland Cam, resident physician of the Ormoc District Hospital, testified that he conducted a post-mortem examination on the bodies of Celso Larbo, Danilo Palacio and Lauro Palacio. The examination disclosed that Celso Larbo sustained “gunshot and hacking wounds,” probably caused by a sharp instrument, causing his death. Danilo and Lauro Palacio suffered from “multiple stab and hacking wounds,” possibly caused by a sharp instrument, which also caused their death.[3] In his defense, Benedicto Igdoy claimed that at the time the incident took place, he was at Hibucawon, Jaro, Leyte where he resides with his family. He insisted that he has never been to Barangay Sto. Domingo, Kananga, Leyte, the place where the crime took place, and that he only goes to the Municipality of Kananga twice a year to visit his parents-in-law in Lonoy. He does not know the victims, or Maximo Peña and Jose Palacio who both testified against him.[4] For his part, Abundio Albarido likewise denied the crime imputed against him. He testified that he was at his house approximately three (3) kilometers away from the scene of the crime at the time it happened. When presented with his affidavit where he stated that he was with Benedicto Igdoy on June 15, 1987, he refuted the same, saying he was only forced to sign it because Romy Tauy, a policeman, threatened to kill him if he refuse to do so.[5] After trial, the lower court rendered judgment finding Abundio Albarido and Benedicto Igdoy guilty beyond reasonable doubt of three (3) counts of murder, thus: “WHEREFORE, decision is hereby rendered finding both accused ABUNDIO ALBARIDO and BENEDICTO IGDOY guilty beyond reasonable doubt as principals of three counts of murder defined and penalized under Art. 248 of the Revised Penal Code. Appreciating the aggravating circumstance of nighttime with no mitigating circumstance to offset the same, the proper penalty imposable is three death penalties for each accused. For reason, however, that the present constitution prohibits the imposition of the death penalty, this Court, accordingly sentences both accused ABUNDIO ALBARIDO and BENEDICTO IGDOY to suffer an imprisonment of RECLUSION PERPETUA for the death of Celso Larbo; another RECLUSION PERPETUA for the death of Danilo Palacio; another RECLUSION PERPETUA for the death of Lauro Palacio. Further, accused ABUNDIO ALBARIDO is ordered to indemnify the heirs of Celso Larbo the sum of FIFTY THOUSAND PESOS (P 50,000.00); the heirs of Danilo and Lauro Palacio the sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Danilo Palacio and another sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Lauro Palacio. Also, BENEDICTO IGDOY is ordered to indemnify the heirs of Celso Larbo the sum of FIFTY THOUSAND PESOS (P 50,000.00); the heirs of Danilo and Lauro Palacio the sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Danilo Palacio and another sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Lauro Palacio. And finally, both accused are ordered to pay the costs. SO ORDERED.”[6] In the instant appeal, Albarido and Igdoy ascribe to the trial court the following errors: I “THE TRIAL COURT ERRED IN GIVING ‘FULL FAITH AND CREDIT’ TO THE TESTIMONIES OF TWO ALLEGED EYEWITNESSES TO THE MULTIPLE MURDER DESPITE THE FACT THAT SAID TESTIMONIES (A) ARE RIDDLED WITH INCONSISTENCIES, CONTRADICTIONS AND IMPROBABILITIES AND (B) WERE NOT CORROBORATED BY ANOTHER ALLEGED EYEWITNESS.

II THE TRIAL COURT ERRED IN ENGAGING IN CONJECTURE AND/OR SPECULATION REGARDING THE TESTIMONY OF PROSECUTION WITNESS MELCHOR PALACIO. III THE TRIAL COURT ERRED IN BASING ITS JUDGMENT OF CONVICTION ON THE TESTIMONIES OF TWO WITNESSES WHICH ARE FLAWED WITH INCONSISTENCIES, CONTRADICTIONS AND IMPROBABILITIES AND HENCE, DO NOT CONSTITUTE PROOF OF GUILT BEYOND REASONABLE DOUBT.” [7] Appellants, in seeking the reversal of the challenged decision, rely principally on the inconsistencies in the testimonies and affidavits of the prosecution witnesses. The appeal has no merit. Appellants contend that the testimonies of Maximo Peña and Jose Palacio on material details of the incident conflict with their allegations in their affidavits executed before the trial. For instance, while Peña stated in his affidavit that only Elias Merced was holding a revolver, however, during the hearing, he testified that all the four (4) accused were armed, three with handguns and one with a long gun. Peña likewise stated in his affidavit that after the first gunshot, victim Lauro Palacio focused his flashlight on the four accused. But during the trial, Peña declared that Lauro Palacio had focused the flashlight on the accused prior to the first gunshot. For his part, Jose Palacio testified that appellant Abundio Albarido and Elias Merced were armed with guns, while appellant Benedicto Igdoy and Aquilino Canaway were carrying bolos. However, in his sworn statement, he stated that Merced was carrying a gun and the other three (3) accused had bolos. Also, Palacio’s statement in his affidavit that it was Merced who fired at him and his companions is inconsistent with his testimony that he did not know who fired the shots. Appellants likewise argue that the testimonies of the three (3) prosecution witnesses are inconsistent with each other. Peña’s account that all the four accused had guns is contradicted by Jose Palacio’s testimony that only two accused were carrying guns, while the other two had bolos. Likewise, Peña testified that appellant Albarido fired the first gunshot, but Palacio declared it was Merced who first fired his gun. Lastly, Peña’s version that before the first gunshot, Lauro Palacio’s flashlight was already focused on the four accused is contradicted by Palacio’s testimony that he did not see any person before they heard any gunshot. Concerning the discrepancies between the affidavits and testimonies of the prosecution witnesses, suffice it to say that time and again, this Court has held that when there is an inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater weight.[8] For, oftentimes, affidavits taken ex parte, are considered inaccurate as they are prepared by other persons who use their own language in writing the affiant’s statements.[9] Omissions and misunderstandings by the writer are not infrequent, particularly under circumstances of haste or impatience.[10] Thus, more often than not, affidavits do not reflect precisely what the declarant wants to impart.[11] A careful scrutiny of the inconsistencies relied upon by the appellants shows that they refer only to minor details in the commission of the crime and do not affect at all the credibility of the prosecution witnesses. It is elementary in the rule of evidence that inconsistencies in the testimonies of prosecution witnesses with respect to minor details and collateral matters do not affect the substance of their declaration nor the veracity or weight of their testimony.[12] In fact, these minor inconsistencies enhance the credibility of the witnesses, for they remove any suspicion that their testimonies were contrived or rehearsed. [13] In People vs. Maglente,[14] this Court ruled that inconsistencies in details which are irrelevant to the elements of the crime are not grounds for acquittal. Besides, both Peña and Palacio were consistent in identifying herein appellants as the perpetrators of the crime and in narrating how the victims died. Indeed, the fact that the statements of the two prosecution witnesses differ on some minor details, does not in any way affect their credibility. This is in accord with ordinary human experience that persons who witness an event perceive the same from their respective points of reference. Therefore, almost always, they have different accounts of how it happened. Certainly, we cannot expect the testimony of witnesses to a crime to be consistent in all aspects because different persons have different impressions and recollections of the same incident.[15] What is significant is that the trial court had the opportunity to observe the demeanor of the prosecution witnesses and found them to be telling the truth. It is axiomatic that findings of the trial court on the credibility of witnesses are entitled to great respect and will not be disturbed on appeal, absent any showing of palpable mistake or grave abuse of discretion which is not present in this case. [16] Appellants assailed the prosecution evidence, stating that Melchor Palacio, the father of the two (2) victims, failed to corroborate the testimonies of Maximo Pena and Jose Palacio. Melchor categorically declared on the

witness stand that due to the darkness of the night and the suddenness of the attack, he did not see the assailants. Again, appellants’ contention must fail. There is no hard and fast rule requiring a number of witnesses to a crime to positively identify the perpetrators thereof. In numerous instances, the testimony of a single witness, if positive and credible, is sufficient to convict an accused.[17] Here, there were two eyewitnesses who positively identified the appellants as the perpetrators of the crime. Moreover, the fact that the crime took place in a dark place does not mean that the assailants could not be identified. Both declared that they used a flashlight in lighting their path that fateful night. Consequently, it cannot be said that the crime took place on an entirely dark night which made it impossible for those witnesses to identify the assailants. Lastly, appellants insist that the infirmities in the testimonies of Maximo Pena and Jose Palacio cast grave and serious doubt on their trustworthiness. They further emphasize that no evidence was presented by the prosecution to prove that they were ill motivated in committing the crime. We are not persuaded. As mentioned earlier, the trial court did not err in giving full faith and credit to the testimonies of Maximo Pena and Jose Palacio quoted below: Testimony of Maximo Peña: “Q: Now, at about 7:00 o’clock while on your way at So. Bislog, do you recall of any unusual incident that took place? A: We were waylaid. Q: Now, what happened when you were waylaid? A: We were shot. Q: You mentioned of the pronoun “we,” whom are you referring to? A: We- I, Melchor Palacio, Jose Palacio, Danilo Palacio, Celso Larbo and Lauro Palacio. Q: Do you recall in what particular place in Sitio Bislog you were waylaid? A: At the crossing. Q: How far is that crossing to your sitio at Baganatad, Brgy. Sto. Domingo, Kananga, Leyte? A: More than one-half kilometer. Q: Did you recognize the persons who waylaid you, while you were on your way to So. Baganatad of Sto. Domingo? A: Yes, sir. Q: Look around the courtroom if you could see these persons? A: Those two, Abundio Albarido and Benedicto Igdoy (witness pointing to the two accused who when asked gave their names as ABUNDIO ALBARIDO and BENEDICTO IGDOY, respectively). Q: Aside from these accused whom you have pointed to as Benedicto Indoy and Abundio Albarido, were there other persons whom you recognized in the company of these accused, Abundio Albarido and Benedicto Igdoy? A: Yes, sir, there were two others. Q: What are their names? A: Aquilino Canaway and Elias Merced. Q: Why do you know these people, accused Abundio Albarido, Benedicto Indoy, Aquilino Canaway and Elias Merced? A: Because they were lighted by the flashlight. Q: Who was holding the flashlight, while you were on your way to Sitio Baganatad from So. Bislog? A: It was a child named Lauro. Q: By the way, what was your position in going to Bislog, were you walking side by side or in a single file? A: We were walking one after the other. Q: Could you recall who was ahead of the group? A: Lauro, Danilo, Celso, Jose Palacio, Melchor Palacio and I was the last. Q: Now, you said you heard a gun report. What happened after you heard a gun report? A: When we heard the gunshot, we immediately covered ourselves at the grasses. Q: What transpired after that A: After the gunshot, Bonding and Benny approached Celso Larbo and hacked him many times. Q: Now, after how many gun reports did you hear, that you saw the accused go to Celso Larbo and hacked him many times? A: Four gunshots. Q: Now, what happened to Lauro Palacio and Danilo Palacio?

A: Danilo Palacio and Lauro Palacio were hacked. After that, they also stabbed Danilo and Lauro at their chest..”[18] Testimony of Jose Palacio: “Q: While proceeding from Sitio Bislog to the house of Simeon Almendras on June 15, 1987 at about 7:00 o’clock together with your companions, what transpired? A: We were shot. Q: How did you know you were shot? A: Because we heard a gun report. Q: Now, how many gin reports did you hear in the first instance? A: Only one. Q: What did you do when you head (sic) the first gun report? A: I rolled at the cogon grasses. Q: Why did you roll at the cogon grass after you heard the first gun report? A: Because I was afraid that I might be hit by the gun report. Q: After the first gun report did you hear any further gun report? A: Yes, sir, I heard another three successive gun reports. Q: At that instance you were hiding at the gocon (sic) grass? A: Yes, sir. Q: Now, while you were in the cogon grass what did you observe? A: I saw that the four (4) persons were carrying boloes (sic) and guns. (Witness pointing to the two accused.) Q: Now, you were using the pronoun “they” who were these persons that were carrying guns and boloes (sic)? COURT And all of the four were carrying guns? A: No, your Honor only two of them were carrying guns. COURT Who? A: Banding or Abundio Albarido and Elias Merced were carrying guns. COURT Proceed. ATTY. SALAZAR Q: How about the other two? A: They were carrying boloes (sic). Q: Now, these two accused present in the courtroom now were the two of the persons whom you saw on June 15? COURT Already answered. ATTY. SALAZAR Q: What happened next after you saw these four accused armed with bolos and other with guns? A: Celso Larbo was hit by the gun. Q: What else did you observe? A: Danilo Palacio and Lauro Palacio were hit by the boloes (sic). Q: How are you related to Lauro Palacio and Danilo Palacio? A: My brothers. Q: What were the accused actually doing on the person of your two younger brothers, Danilo Palacio and Lauro Palacio? A: They were hacked. Q: Did you see who was hacking Danilo Palacio? A: Yes, sir. Q: Who? A: He was hacked by Banding (Albarido) and Biri (Igdoy). Q: How about Lauro Palacio? A: Lauro Palacio was also hacked by Bonding and Biri.

Q: From where you were situated in that cogon grasses to the place where your two younger brothers, Danilo Palacio and Lauro Palacio were hacked, how far was that? A: About three arms length. Q: What parts of the body were your brothers hit by the hacking blows delivered by the accused? A: Lauro Palacio was hit on his right foot and at his right side. Q: And how about Danilo Palacio? A: He was hit on his back. Q: Now, considering that it was nighttime, how were you able to witness and observe the incident? A: Because Lauro Palacio was carrying a flashlight and he was able to light them with the flashlight before he died.”[19] Motive becomes relevant only when there is doubt on the identity of the malefactors. [20] Hence, failure of the prosecution to show appellants’ motive in committing the crime is immaterial. What is important is that they have been positively identified as the assailants. We are not moved by appellants’ uncorroborated defense of alibi. For the defense to prosper, the requirements of time and place (or distance) must be strictly met; it is not enough to prove that the accused was somewhere else when the crime was committed; he must also demonstrate by clear and convincing evidence that it was physically impossible for him to have been at the scene of the crime during its commission.[21] Appellant Igdoy himself testified that the distance between his residence at Hibucawon, Jaro, Leyte and Kananga, Leyte, the scene of the crime, can be negotiated by public transport within two and a half hours.[22] Appellant Albarido admitted that he was at his house during the commission of the crime, which is only more than three (3) kilometers away from Sto. Domingo, Kananga, Leyte where it happened. [23] These distances, as this Court has ruled in previous cases,[24] are not enough to prove that appellant could not have been at the crime scene when it was committed. Parenthetically, appellants’ alibis are worthless in the face of their positive identification by the prosecution witnesses.[25] We find that treachery and abuse of superior strength are present here. But abuse of superior strength is absorbed by treachery.[26] These circumstances qualified the killing to murder. The essence of treachery is that the attack comes without a warning and in a swift, deliberate and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape.[27] Celso Larbo, Danilo Palacio and Lauro Palacio were on their way home, unaware of the danger lurking in their path, when they were suddenly attacked by the appellants with the use of their guns and bolos. Thus, they had no opportunity to defend themselves. In fact, Maximo Peña testified that after Celso Larbo was rendered defenseless by the first gun shot,[28] appellants started hacking him with their bolos.[29] They also attacked Danilo and Lauro Palacio, then only 12 and 14 years old, who were unable to protect themselves from the aggression of grown men. As to the presence of abuse of superior strength, the same is proved by the fact that appellants and their two companions were armed, not only with guns, but with bolos tucked at their waist.[30] However, we disagree with the trial court’s ruling that the crime was attended by the aggravating circumstance of nighttime. There is no evidence to show that the appellants and their companions purposely took advantage of the darkness of the night to insure the commission of the crime. It is basic that for nighttime to be appreciated as an aggravating circumstance there must be a showing that the accused purposely sought such time to facilitate the commission of the crime or to prevent its discovery. [31] Neither can we rule that there was evident premeditation on the part of herein appellants because the prosecution failed to establish the same. The imposable penalty is reclusion perpetua under Article 248 of the Revised Penal Code considering that no ordinary aggravating circumstance attended the commission of the crime. We sustain the trial court’s award of P 50,000.00 as civil indemnity to the heirs of each of the three (3) victims. In line with existing jurisprudence,[32] since the qualifying aggravating circumstance of treachery was sufficiently proven, the award of exemplary damages of P 25,000.00 each to the same heirs is likewise in order. WHEREFORE, the appealed decision of the trial court is hereby AFFIRMED, with MODIFICATION that each of the appellants is ordered to pay the heirs of each victim the sum of Twenty Five Thousand Pesos (P 25,000.00) as exemplary damages. SO ORDERED. Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. L-18054 December 22, 1961 THE CITY OF BUTUAN, petitioner, vs. HON. JUDGE MONTANO A. ORTIZ and JUSTINIANO SORIANO, respondents. LABRADOR, J.: The amended petition in the above-entitled case seeks to annul an order of the Court of First Instance of Agusan, Hon. Montano Ortiz, presiding, dated January 13, 1960, ordering the execution of the court's decision in Special Civil Action No. 16 of that court, entitled "Julieto Semine and Justiniano Soriano, petitioners, versus Zacarias Pizaro, respondent", dated August 13, 1954, rendered by Judge Francisco Arca, in which decision the court ordered Zacarias Pizarro, respondent, to reinstate immediately as police corporal petitioner therein Soriano. The record discloses that on March 9, 1954, administrative charges for physical injuries and electioneering were filed with the Municipal Board of Butuan City against Justiniano Soriano. On March 11, 1954, Soriano was suspended by Mayor Pizarro of Butuan City. The decision of the Board dated May 9, 1954 found Soriano guilty as charged. On the same date, appeal was brought by Soriano to the Commissioner of Civil Service. Said Special Civil Action No. 16 was filed in the Court of First Instance of Agusan on June 1, 1954. In the petition it is alleged that the 60-day period of suspension provided for in Republic Act No. 557 had already elapsed and the case against Soriano had not been finally decided. So Soriano sought to compel Mayor Pizarro to reinstate him pursuant to said Act. Decision was rendered on August 13, 1954, favorable to petitioner Soriano, ordering Soriano reinstated pending termination of the administrative charges filed against him. On November 27, 1954 the Commissioner of Civil Service to whom the decision of the Municipal Board had been appealed by petitioner Soriano, affirmed the decision of the Municipal Board, finding respondent Soriano guilty and separating him from the service. On January 12, 1960 (less than five years from the date of the judgement) attorney for Soriano filed an ex-parte motion to execute the judgment of Judge Arca for reinstatement. This motion was granted by the court. The court refused to reconsider said order of execution, hence the petition in this case was presented to set aside the order of execution, on the ground that the court committed a grave abuse of discretion in ordering the said execution of the judgment as the Commissioner of Civil Service has already affirmed the decision of the Municipal Board finding Soriano guilty of the charges and separating him from the service. We find merit in the petition. When on January 12, 1960, Soriano demanded the execution of the judgment in Special Civil Action No. 16 of the Court of First Instance of Agusan, appeal by Soriano to the Civil Service Commissioner from the decision of the Municipal Board had long ago been decided against him by the Commissioner of Civil Service, said decision being dated November 29, 1954. It is to be noted that the right of action invoked by Soriano in Special Civil Action No. 16 in the Court of First Instance of Agusan was based on the failure of the Municipal Board to decide the case within 60 days as required by Republic Act No. 557. It is true that the judgment was correct because the suspension was ordered on March 11, 1954 and by June 1, 1954, when the petition for mandamus was filed in the Court of First Instance, more than 60 days have already expired without the case having been decided. It is also true that the decision of the Court of First Instance in said special civil action continued to be executory when the motion for execution was presented, because the 5-year period within which a decision of the court may be enforced by motion had not yet expired, but as it was alleged and shown in the motion for the reconsideration of the order granting execution, that the Commissioner of Civil Service had already affirmed the decision of the Municipal Board finding Soriano guilty on November 29, 1954, the right to reinstatement was barred by the decision of the Commissioner of Civil Service. This decision of the Civil Service Commissioner finding Soriano guilty was a valid impediment to the execution of the aforesaid decision for reinstatement. In other words a supervening cause or reason had arisen which his rendered the decision of the court ordering reinstatement, no longer enforceable.lawphil.net Obviously a prevailing party in a civil action is entitled to a writ of execution of the final judgment obtained by him within five years from its entry (section 443, Code of Civil Procedure). But it has been repeatedly held, and it is now well-settled in this jurisdiction, that when after judgment has been rendered and the latter has become final, facts and circumstances transpire which render its execution impossible or unjust, the interested party may ask the court to modify or alter the judgment to harmonize the same with justice and the facts (Molina vs. De la Riva, 8 Phil. 569; Behn, Meyer & Co. vs. McMicking, 11 Phil. 276; Warner, Barnes & Co. vs. Jaucian, 13 Phil. 4; Espiritu vs. Crossfield and Guash, 14 Phil. 588; Flor Mata vs. Lichauco and Salinas,

36 Phil. 809). In the instant case the respondent Cleofas alleged that subsequent to the judgment obtained by Sto. Domingo, they entered into an agreement which showed that he was no longer indebted in the amount claimed of P995, but in a lesser amount. Sto. Domingo had no right to an execution for the amount claimed by him. (De la Costa vs. Cleofas, 67 Phil. 686-693). For the foregoing considerations, the writ prayed for is hereby granted, and the order for the execution of the judgment of the Court of First Instance in Special Civil Action No. 16 "Soriano vs. Pizarro" is hereby set aside. With costs against respondent Justiniano Soriano. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-33841 October 31, 1984 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLAVIANO PUDA Y GARAPEA alias "FLAVIO PUDA", accused-appellant. GUTIERREZ, JR., J.:ñé+.£ªwph!1 This case is before us for the automatic review of a decision of the Court of First Instance of Rizal, Branch II, sentencing the accused-appellant to suffer the penalty of death after finding him guilty beyond reasonable doubt of the crime of murder qualified by treachery and premeditation with two aggravating circumstances. The accused-appellant was also ordered to indemnify the heirs of the victim in the sum of P6,000.00 and to pay the costs. The original information for murder reads:têñ.£îhqw⣠That on or about the 19th day of December, 1959, in the municipality of Parañaque, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the said accused, with evident premeditation and treachery and with intent to kill, did then and there wilfully, unlawfully and feloniously attack and wound with a dagger one Ching Tian Un while he was sleeping, thereby upon him two mortal wounds which directly caused his instantaneous death. All contrary to law, and with the following aggravating circumstances, to wit: 1. That the crime was committed in the dwelling of the victim, Ching Tian Un, the latter not having given provocation; 2. That the crime was committed in the night time, a circumstance deliberately sought by the accused to facilitate the commission thereof; 3. That the crime was committed after an unlawful entry;and 4. That as a means to the commission of the crime a wall or window was broken. At his arraignment, the appellant, with the assistance of his counsel de oficio, Atty. Norberto Inlayo, voluntary and spontaneously pleaded guilty. In view however of the gravity of the offense charged and because several aggravating circumstances were alleged, the lower court required the prosecution to submit evidence. From the evidence submitted, the following facts were established and were made the basis by the court a quofor its decision:têñ.£îhqw⣠... it appears that in the early morning of December 19, 1959 defendant Flaviano Puda climbed over the fence of the house of Luis Ching Kiat Biak located at 557 Tomas Claudia Street, Parañaque, Rizal, then once over the fence he clambered to the awning (media agua) of the back part of the ground floor of the house and from there, he went up to the second story, removed the wooden mouldings which held in place the glass plates of the transom located over one of the windows,and then removed the glass plates thereby causing an opening to be made; that thereafter he removed his rubber shoes and went thru the opening and gained entrance into the bedroom of Ching Tian Un, son of the owner of the house who was then sleeping alone in said bedroom at the time; that after having gained entry into the bedroom, defendant stabbed twice the sleeping Ching Tian Un with a dagger causing the death of the latter (Confession of defendant marked exhibit H). The method of entry into the house by the defendant as hereby outlined is corroborated by the testimony of Purisima de Dumaual, a chemist of the National Bureau of Investigation, who examined the rubber shoes used by the defendant, and who testified that she had examined the same and had found on their soles paints Identical with the paint of the awning where the defendant walked on in going up towards the window of the house over which he gained entrance.

Demetrio de Leon, Chief of Police of Parañaque, Rizal, testified that in the morning of December 19, 1959 he received a report that a Chinese boy was killed in his bedroom at Tomas Claudio, Baclaran, Parañaque, and so he sent Lt. Peñafiel, Sgt. Siga, and Pat. Rosendo Cruz of his office to conduct an investigation. Pat Rosendo Cruz, one of the policemen mentioned by the Chief of Police, testified that about 3:30 in the morning he went to the house of the victim Ching Tian Un and found the room where he slept splattered with blood; that all the windows of the room were closed and barred by iron grills but he found that the glass plates of the transom over one of the windows had been removed. According to him he found the pair of rubber shoes ( Exhibit C), the glass plates of the transom as well as the moulding that had kept them in place on the awning below the transom. He also found in the yard of the house the hunting knife, Exhibit B and a handkerchief, Exhibit C; that the handkerchief, the knife or dagger and the pair of rubber shoes which were used allegedly by the defendant were all sent to the Bureau of Investigation for examination. According to the examination conducted by the chemist of the National Bureau of Investigation, the aforementioned Purisima Dumaual, the stains which she found in the handkerchief, Exhibit C and the dagger, Exhibit B, were human blood. The evidence further established that after the defendant had been arrested and after he had made the statement, Exhibit H, he was requested to reenact his movements and from the reenactment it was shown that defendant may climbed over the fence and went over the awning of the house wearing the pair of rubber shoes, Exhibit C-1; that after he had removed the mouldings around the glass places of the transom he removed his shoes and left them on the awning and then he entered the room. Dr. Jesus Crisostomo of the National Bureau of Investigation who performed the autopsy on the body of the deceased Ching Tian Un testified that he found two stab wounds on the chest and upper abdomen of the deceased, the one on the chest having a width of 2-1/2 cm. and a depth of 12 cm. the right ventricle of the heart having been penetrated down to the left ventricular chamber. The other wound was a gaping one 3.1 cm. in length and extended down the upper abdominal cavity to a depth of 13 cm and involved the supermedial aspect, left lobe of the liver. Dr. Crisostomo gave an opinion that the stab wound on the chest was fatal and was the one which caused the death of the deceased. The other testimonies established that the fingerprints found on the window under the transom and in the room of the victim when developed were found to be Identical to those of the defendant. When it came to the turn of the appellant to testify, he at first stated that he was not guilty. Later on, however, he reverted to his plea of guilty. Contrary to his previous confession, however, the appellant testified that he gained entry into the house of the victim at around 3:00 o'clock that morning through the main door which was open. Thereafter, he directly proceeded upstairs to the bedroom of the victim the door of which was also open in order to steal some MONEY although he did not know whose MONEY he, was looking for. According to the appellant, the victim who was out of the room when he entered, immediately came and attempted to hit him three times with a piece of wood about two feet and one and a half inches wide, but he managed to evade the attack and instead the victim hit the window. He then stabbed the victim twice with something that he picked up from the drawer even before the victim attempted to hit him again. After the stabbing, the appellant ran away by passing through the transom of the window which had no glass or shade. (T.S.N., pp. 12-19, August 9, 1960). During the cross-examination, the appellant testified that he found the blade which he used in stabbing the victim inside the drawer ransacking the same to look for money and he took the blade because he wanted it. (T.S.N., p. 21, August 9, 1960) Reminded that when he reenacted the crime, he showed that he reached the bedroom by passing through the transom of the window, he stated that he made that re-enactment only because he was beaten on the left part of his face between the left eye and the left ear. (T.S.N., p. 23, August 9, 1960). The trial court found the version of the prosecution more credible especially since it was supported by the accused's confession, Exhibit H, which showed that the accused had been earlier convicted by the Court of First Instance of Rizal for having stolen P100.00 from the father of the victim and for which reason he was dismissed as houseboy and that because of this and of the fact that he had not been treated well by the deceased he went to the victim's house in the night of December 19, 1959 with the intention to kill the deceased; that the court also found that the shoes the accused used were stolen by him from the said house; that he really passed through the transom of the window, removing however the said shoes before entering the room; that once inside the room, he stabbed the deceased twice; that after stabbing the deceased who was then sleeping, he escaped but left behind him the pair of shoes and that he also lost on the way of the dagger he used in stabbing the deceased.

The trial court also found the following aggravating circumstances to be present, namely-treachery which qualified the killing to murder; evident premeditation which was off-set by the appellant's plea of guilty; unlawful entry and dwelling. Thus, on November 21, 1960, the trial court found the accused guilty of murder with two aggravating circumstances and sentenced him to the supreme penalty of death. Unfortunately because of negligence of some court personnel the records of the case were not forwarded by the court a quo to this Court for automatic review. Eleven years after his conviction, the accused wrote a letter to this Court inquiring about the status of his case. We inquired through a letter addressed to the Clerk of Court of the Court of First Instance of Pasig, Rizal, about the veracity of the allegations of the letter of the accused and received a reply informing us that due to the inadvertence of the then clerk in charge of criminal cases of Branch II, the records of this case were placed in the archives sometime in 1960 instead of being forwarded to us. Hence, it was only then that the entire records were elevated to this Court. The accused raises the following alleged errors: I THE TRIAL COURT A QUO ERRED IN ADMITTING THE ACCUSED-APPELLANT'S PLEA OF GUILTY FOR BEING IMPROVIDENTLY GIVEN. II THE TRIAL COURT ERRED IN APPRECIATING AND GIVING CREDENCE TO ACCUSED-APPELLANT'S ALLEGED CONFESSION STATEMENT (EXH. H) FOR BEING VIOLATIVE OF HIS RIGHT TO COUNSEL AND AGAINST SELFINCRIMINATION AND DUE PROCESS OF LAW. III THE TRIAL COURT A QUO ERRED IN APPRECIATING AND IN GIVING FULL CREDENCE TO EVIDENCE TAKEN FROM THE ACCUSED-APPELLANT ALLEGED RE-ENACTMENT WITHOUT ASSISTANCE OF COUNSEL DURING CUSTODIAL INVESTIGATION IN GROSS VIOLATION OF THE ACCUSED' RIGHT AGAINST SELFINCRIMINATION AND DUE PROCESS OF LAW. IV THE TRIAL COURT A QUO ERRED IN NOT GIVING CREDENCE TO ACCUSED-APPELLANT'S TESTIMONY INTERPOSING QUASI-SELF DEFENSE TENDING TO ESTABLISH HOMICIDE. V THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION. VI THE TRIAL COURT A QUO ERRED IN NOT GRANTING THE ACCUSED-APPELLANT FULL OPPORTUNITY TO AN EFFECTIVE DEFENSE TENDING TO ESTABLISH HOMICIDE. VII THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY FOR BEING VIOLATIVE OF THE CONSTITUTIONAL PROVISION (1935 CONSTITUTION) AGAINST THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT. VIII IN ANY EVENT, ACCUSED-APPELLANT SHOULD NOT BE METED WITH THE SUPREME PENALTY OF DEATH BY THIS HONORABLE SUPREME COURT AS HE HAS FULLY PAID HIS DUE TO SOCIETY FOR HAVING SUFFERED ENOUGH IN STAYING IN DEATH ROW FOR MORE THAN TWENTY (20) YEARS. With respect to the first assignment of error, the accused contends that his plea of guilty was not voluntarily and spontaneously made but was improvidently given because neither his counsel nor the respondent judge informed him of the consequences of his plea. This contention has no merit. The records show that after entering his plea of guilty, the accused withdrew the same in open court on April 25, 1960 stating as the reason that he was not thinking at the time he made the plea. Subsequently, however, on August 9, 1960, he reiterated his plea of guilty with the assistance of his counsel who assured the court that the accused understood the purpose of trial based on the plea of guilty and that they were only proving mitigating circumstances. Thus, it is clear that aside from having been assisted by his counsel when he reiterated his plea, the accused also had sufficient time to think about the consequences of the same. Furthermore, notwithstanding his plea, the lower court continued with the trial and required the prosecution to present its evidence and also gave the defense a chance to present its side. The contention, therefore, of the appellant that the case should at least be remanded to the lower court for re-

arraignment and further proceedings on the ground that his plea was improvidently given cannot be sustained. The ruling in the case of People v. Onavia (120 SCRA 232) is applicable: têñ.£îhqw⣠xxx xxx xxx ... Although it did not explain to the accused the fun import of his plea of guilty, neither did it automatically accept that plea nor did it render judgment based exclusively thereon. It accepted evidence for the purpose of determining the accused's guilt and the degree of his culpability to the end that such evidence would dispel all doubt that the accused misunderstood the nature and effects of his plea of guilty. (People v. Daeng, 49 SCRA 222 [1973]. Where the Trial Court received evidence on the crime, there is no improvident acceptance of a plea of guilty. (People v. Nismal, 114 SCRA 487, 490 [1982] citing People v. Apduhan, Jr., 24 SCRA 798 [1968]. The defense contention, therefore, that the plea of guilty, having been improvidently accepted, the case should be remanded to the trial court, is bereft of basis. The validity of the judgment under review is unassailable. Similarly, in People v. Nismal, supra, we ruled: têñ.£îhqw⣠xxx xxx xxx ... When, as in this case, the trial court in obedience to this Court's injunction in Apduhan (People v. Apduhan, 24 SCRA 798) and similar cases, receives evidence to determine precisely whether or not the accused has erred in admitting guilt, the manner in which the plea is made loses legal significance, for the simple reason that the conviction is, as in this case, predicated not on the plea but on the evidence proving the commission by the accused of the offense charged. Coming to the second and third assignments of errors, the accused maintains that the trial court erred in appreciating and giving credence to the accused's confession and his alleged re-enactment of how he gained entry into the house of the victim on the ground that both were executed by the accused without the assistance of his counsel and therefore violated his right against self-incrimination. It should be noted that the confession and re- enactment were executed by the accused long before the effectivity of the 1973 Constitution. The "Miranda-type" protection given to the accused during a custodial investigation, cannot be invoked by herein appellant as said right was incorporated into the Bill of Rights only in 197,3 and has no retroactive effects. In the case of Magtoto v. Manguera (63 SCRA 4) we have settled this issue and ruled that. têñ.£îhqw⣠xxx xxx xxx ... a confession obtained from a person under investigation for the commission of an offense, who has not been informed of his right (to silence and) to counsel, is inadmissible in evidence if the same had been obtained after the effectivity of the New Constitution on January 17, 1973. Conversely, such confession is admissible in evidence against the accused if the same had been obtained beforethe effectivity of the New Constitution, even if presented after January l7,1973,and even if he had not been informed of his right to counsel since no law gave the accused the right to be so informed before that date. Hence, the trial court did not err in taking into account the confession and re- enactment of the accused as part of the evidence against the latter. With regard to the fourth, fifth and sixth assignments of errors, the accused contends that the trial court erred in appreciating treachery and evident premeditation as qualifying circumstances and in not finding that the crime committed was only homicide. We are convinced that the crime committed was murder. Treachery and evident premeditation were both present in the commission of the crime. The records of the case clearly establish the fact that the accused after having served for eleven months as a houseboy of the victim's family was dismissed because he stole money from his EMPLOYERS and for which he was convicted by the Court of First Instance of Rizal. Because of this and the fact that he was not treated well by the deceased, he decided to seek revenge and did so in the early morning of December 19, 1959. While everyone in the house of the deceased was still asleep, he forcibly removed the glass from the transom of the window of the room of the deceased after he stealthily climbed up the same. After he succeeded in entering the room, he stabbed the deceased twice while the latter was still asleep and thereafter, he hurriedly climbed up the same window and made his exit through the same opening of the transom which he had created upon his entry. We cannot lend credence to the appellant's testimony that he gained entry into the house through the main door which happened to be open at that time because aside from the testimony of Luis Ching Kiat Biak the father of the deceased that he checked the doors of the house and the rooms of his children and found them locked from the inside, it is also highly improbable that the main door of a house would be left open at 3:00

o'clock in the morning while every member of the household was stiff sleeping. Lt. Ismael de Leon also testified that he did not see any piece of wood in the bedroom of the deceased which the accused claimed was used by the deceased when the latter tried to hit him. There were also no signs of a struggle that may have ensued between the deceased and the accused tending to establish the fact that the accused was really asleep when the deceased stabbed him From the necropsy report, it was shown that the deceased weighed 78 kilograms or around 171.6 pounds and had a height of 168 centimeters or around 5' feet and 6 inches tall. The accused on the contrary weighs only 110 pounds and stood at 5 feet. If there was really a struggle which ensued between the two and if the deceased really attempted to hit the accused three times with a piece of wood, the latter could not have stabbed the deceased twice; once on the chest and the other on the abdomen with a depth of 12 and 13 centimeters respectively and in so short a time. According to the accused, he was in the room of the deceased at 3:00 o'clock in the early morning of December 19, 1959 (T.S.N., p. 14, August 9, 1960) while according to Patrolman Rosendo Cruz, he arrived at the house of the deceased at around 3:30 a.m. on the same day (T.S.N., p. 34, February 17, 1960). By that time, the accused had already escaped through the transom of the window of the deceased's room and was outside of the premises of the house. It is, therefore, highly improbable that between 3:00 o'clock and 3:30 a.m., or a span of less than 30 minutes, the accused was able to enter the room of the deceased, evade the piece of wood which the deceased attempted to hit him with three times, pick up a bladed instrument from the drawer and stab the latter twice one of which caused the mortal wound and finally escape from the premises of the house by passing through a high window. The only way he could have accomplished all of these in less than 30 minutes is if the deceased were asleep at that time so much so that the accused did not have to exert extra effort to ensure his victim's death. The trial court, therefore, correctly ruled that the crime committed was murder qualified by treachery and that evident premeditation dwelling and unlawful entry were also present. The next assignment of error alleges that the death penalty is violative of the constitutional right against the imposition of cruel and unusual punishment. In the case of People v. Camano, (115 SCRA 688), we ruled that the death penalty is not cruel, unjust or excessive. Citing the case of Harden v. Director of Prisons, 81 Phil. 741, 747, we further said that: têñ.£îhqw⣠The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court said that 'punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous something more than the mere extinguishment of life.' The Court, however, agrees with the accused's contention that the penalty should not be imposed on him since he has been detained and continues to be in the death row for about 24 years now since as stated earlier, it took eleven years after his trial and conviction before the records of this case were discovered and transmitted to this Court for automatic review. For lack of the needed votes, the penalty of death is reduced to reclusion perpetua. (People v. Advincula, 96 SCRA 875; People v. Saravia, 127 SCRA 100) WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that the penalty of death is reduced to reclusion perpetua and the indemnity for the heirs of the victim increased to THIRTY THOUSAND (P30,000.00) PESOS. In view of the long period of time during which the accused-appellant has been in Death Row this case is referred to the Board of Pardons and Parole for a thorough study of all aspects of the case, including the accused's conduct while in prison, with the end in view of recommending executive clemency if warranted by the facts. SO ORDERED.1äwphï1.ñët Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 131116 August 27, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO L. SANCHEZ, ARTEMIO AVERION, LANDRITO "DING" PERADILLAS and LUIS CORCOLON,accused, ANTONIO L. SANCHEZ and ARTEMIO AVERION, accused-appellants. PARDO, J.:

What is before this Court is an appeal from the decision of Regional Trial Court, Branch 160, Pasig City,1 finding accused Antonio L. Sanchez, Luis Corcolon y Fadialan, Landrito "Ding" Peradillas and Artemio Averion guilty beyond reasonable doubt of murder committed Nelson Peñalosa and Rickson Peñalosa, and sentencing each of the accused, as follows: WHEREFORE, foregoing considered, the Court finds the accused Antonio Sanchez, Landrito "Ding" Peradillas, Luis Corcolon, and Artemio Averion GUILTY beyond reasonable doubt of the crime of MURDER punishable under ART. 48 of the Revised Penal Code and hereby sentences each of said accused to suffer the penalty of reclusion perpetua and to pay jointly and severally, the heirs of the victims each the sum of P100,000.00 for the death of Nelson Peñalosa and Rickson Peñalosa, P50,000.00 as actual damages and moral damages of P50,000.00 and exemplary damages of P30,000.00 and to pay the costs.1âwphi1.nêt SO ORDERED. City of Pasig. December 27, 1996. (s/t) MARIANO M. UMALI Judge2 On March 1, 1994, Senior State Prosecutor Hernani T. Barrios filed with the Regional Trial Court, Calamba, Laguna, an information for double murder against accused Antonio L. Sanchez, Luis Corcolon y Fadialan, Landrito "Ding" Peradillas and Artemio Averion, the accusatory portion of which reads: That on or about April 13, 1991, at about 7:45 p.m. more or less, in Barangay Curba, Municipality of Calauan, Province of Laguna, and within the jurisdiction of the Honorable Court, the above-named accused conspiring, confederating, and mutually aiding one another, with treachery and evident premeditation, and with the use of a motor vehicle, at night time, all the accused then being armed and committed in consideration of a price, reward or promise and of superior strength, did then and there willfully, unlawfully, and feloniously shoot with the use of automatic weapons inflicting multiple gunshot wounds upon Nelson Peñalosa and Rickson Peñalosa which caused their instantaneous deaths to the damage and prejudice of their heirs and relatives. CONTRARY TO LAW.3 On March 16, 1994, the case was raffled to Branch 34, Regional Trial Court, Calamba, Laguna. 4 On March 17, 1994, the court ordered the arrest of accused Antonio L. Sanchez, Luis Corcolon and Ding Peradillas. On the same date, Artemio Averion voluntarily surrendered to the court, which ordered Averion's transfer to the provincial jail, Sta. Cruz, Laguna.5 Thereafter, the trial court committed the accused to the custody of proper authorities. 6 Upon arraignment on April 10, 1995, all the accused pleaded not guilty.7 The trial of the case thereby ensued. On December 27, 1996, the trial court convicted all the accused of the complex crime of double murder, as charged, the dispositive portion of which is set out in the opening paragraph of this opinion. On February 27, 1997, all the accused, except Ding Peradillas, were present for the promulgation of the decision. Peradillas was a member of the Philippine National Police and was under the custody of his superiors. The trial court ordered his custodian to explain accused's non-appearance. On March 14, 1997, P/C Supt. Roberto L. Calinisan, Chief, PNP-PACC Task Force Habagat, denied any knowledge of the murder case against Peradillas. Hence, Peradillas was not suspended from the service pending trial. However, at the time that Peradillas was to be presented to the court for the promulgation of the decision, he had disappeared and could not be located by his custodian.8 The promulgation of the decision as to him was in absentia. Peradillas and Corcolon did not appeal from the decision. Accused Antonio L. Sanchez and Artemio Averion filed their respective appeals to this Court. The facts are as follows: On April 13, 1991, at around 10:00 in the morning, state witness Vivencio Malabanan, team leader of a group of policemen, went to the Bishop Compound in Calauan, Laguna, as part of the security force of mayor Antonio L. Sanchez. After a while, accused Ding Peradillas arrived and asked for mayor Sanchez. Peradillas informed mayor Sanchez that there would be a birthday party that night at Dr. Virvilio Velecina's house in Lanot, Calauan, Laguna, near the abode of Peradillas. Peradillas assured mayor Sanchez of Nelson Peñalosa's presence thereat. Dr. Velecina was a political opponent of mayor Sanchez for the mayoralty seat of Calauan, Laguna, Mayor Sanchez then replied, "Bahala na kayo mga anak. Ayusin lang ninyo ang trabaho," and left the premises. Peradillas immediately called Corcolon and Averion and relayed the message — "Ayos na ang paguusap at humanap na lang ng sasakyan." All the accused, including Malabanan, understood it as an order to kill Nelson Peñalosa, one of the political leaders of Dr. Velecina. 9

Afterwards, Peradillas, Corcolon and Averion made arrangements to acquire two-way radios and a vehicle for the operation. At around 2:30 in the afternoon, Malabanan and the three accused went their separate ways and agreed to meet at mayor Sanchez' house at 6:00 in the evening. Malabanan returned to his detachment area at Dayap, proceeded to the municipal hall, then went home where Peradillas fetched him at 6:00 p.m. They proceeded to mayor Sanchez' house where they met Averion and Corcolon, with the car and two-way radios.10 At around 7:00 in the evening, Malabanan and the three accused boarded the car and went to Marpori Poultry Farm in Barangay Lanot, near Dr. Velecina's house. Peradillas alighted and walked towards his own house, near Dr. Velecina's house, to check whether Nelson Peñalosa was at the party. Thereafter, using the two-way radio, Peradillas informed the occupants of the car that Nelson Peñalosa's jeep was leaving the Velecina compound. Accused Averion immediately drove the car to the front of Peradilla's house and the latter hopped in the car's back seat. Corcolon sat in the front seat beside him; witness Malabanan sat at the left side of the backseat and Peradillas stayed at the right side of the back seat. The group pursued Peñalosa's jeep. When the accused's car was passing Victoria Farms, located about 100 meters from Peñalosa compound, Corcolon ordered Averion to overtake Peñalosa's jeep. As the car overtook the jeep, Peradillas and Corcolon fired at Peñalosa's jeep, using M-16 and baby armalite rifles, executed in automatic firing mode. There were three bursts of gunfire. Based on the sketch prepared by Malabanan, illustrating the relative position of their car and Nelson's jeep at the time of the shooting, the assailants were at the left side of the jeep.11 Rickson Peñalosa, son of Nelson Peñalosa, fell from the jeep. The jeep, however, continued running in a zigzag position until it overturned in front of Irais Farm. After the shooting, the accused proceeded to the house of mayor Sanchez in Bai, Laguna, and reported to mayor Sanchez that Peñalosa was already dead. 12 Together with his superior SPO4 Lanorio and photographer Romeo Alcantara, policeman Daniel Escares went to the crime scene. There, he saw the body of Nelson Peñalosa slumped at the driver seat of the owner-type jeep. They recovered the body of Rickson Peñalosa slumped on a grassy place not far from where they found Nelson Peñalosa. After all the evidence and photographs were taken, they brought the cadavers to Funeraria Señerez. Daniel Escares submitted his investigation report of the incident to the Provincial Director, Laguna PNP Command.13 Dr. Ruben B. Escueta, Rural Health Physician, Rural Health Unit, Calauan, Laguna, conducted an autopsy on the bodies of Nelson and Rickson Peñalosa. Nelson Peñalosa suffered massive intra-cranial hemorrhage and died of cranial injury due to gunshot wounds. Rickson Peñalosa died of massive intra thoracic hemorrhage due to gunshot wounds.14 Dr. Escueta, as a defense witness, testified that based on the points of entrance and exit of the wounds sustained by the Peñalosas, it was not possible for the assailants to be at the left side of the victims.15 It contradicted Malabanan's testimony that they were at the left side of the victims when the shooting took place. He further stated that based on the wounds inflicted on the victims, the assailants were either in a sitting or squatting position when they shot the victims. Some of the wounds indicated an upward trajectory of the bullets. On September 15, 1993, Janet P. Cortez, PNP ballistician, completed the ballistic tests conducted on the twelve (12) empty shells found at the crime scene and the M-16 baby armalite surrendered by Corcolon.16 She concluded that the 12 empty shells were fired using three (3) different firearms, one of which was the M-16 baby armalite.17 On August 18, 1995, Adelina Peñalosa, common law wife of Nelson Peñalosa and mother of Rickson, testified that the whole family was in mourning and could not eat after what happened. 18 She testified that the family incurred P250,000.00 for funeral expenses, but failed to present the appropriate receipts. She also stated that Nelson Peñalosa was earning one (1) million pesos per annum from his businesses. However, no income tax return or other proofs were shown to substantiate the statement.19 The accused interposed the defense of alibi and denial. Luis Corcolon stated that he spent the whole day of April 13, 1991, until 8:30 in the evening, supervising the poultry farm of his EMPLOYERS , Edgardo Tanchico and Orlando Dizon. He denied that he was in the company of Averion and Peradillas that day, and that he participated in the Peñalosa killings. He denied that he was ever assigned as a security guard of mayor Sanchez. He claimed that the murder charges were concocted against them for his refusal to testify against mayor Sanchez in the Gomez-Sarmenta case. He alleged that he was maltreated, tortured, electrocuted and forced to implicate mayor Sanchez in the GomezSarmenta rape-slayings. He denied that he owned the M-16 baby armalite used in killing the Peñalosas.20

Detention prisoner George Medialde corroborated Corcolon's statement that they were implicated in the Peñalosa killing for their refusal to testify against mayor Sanchez. He claimed that Malabanan confessed to him that the latter had killed the Peñalosas, but with the aid of CAFGU men and not herein accused. He averred that Corcolon and Averion were wrongfully implicated in the murder charges in deference to the wishes of the investigators.21Zoilo Ama, another detention prisoner, claimed that Malabanan confessed that he killed the Peñalosas, but did not mention the involvement of Corcolon, Averion and mayor Sanchez. 22 Accused Artemio Averion, a godson of mayor Sanchez, denied that he was involved in the Peñalosa slayings. On April 13, 1991, he claimed that he was in Lucena City, attending to his ailing father. He stayed there until April 15, 1991. He maintained that he was wrongfully implicated in the Peñalosa killings for his refusal to testify against mayor Sanchez regarding the Gomez-Sarmenta rape-slayings. Malabanan asked for his forgiveness for falsely incriminating them in the Peñalosa case.23 Jesus Versoza, PNP Officer, Camp Crame, denied the allegations of Medialdea and Averion that they were tortured and forced to testify against mayor Sanchez.24 Accused mayor Antonio L. Sanchez stated on April 12, 1991, he went to Anilao, Batangas, with his family. Around 1:00 in the afternoon of April 13, 1991, his family went to Tagaytay City and stayed overnight at Taal Vista Lodge. Around 10:00 in the morning of April 14, 1991, they went home to Calauan, Laguna. After reaching his abode in Calauan around 12:00 noon, mayor Sanchez learned of the ambush-slayings of the Peñalosas. He immediately ordered an investigation of the case. He denied any involvement in the killing of the victims.25 The trial court ruled that the prosecution's evidence clearly and convincingly established the participation of the four (4) accused in killing the Peñalosas. Malabanan gave a sincere, frank and trustworthy account of the circumstances surrounding the killing. Furthermore, the trial court explained the discrepancies between Malabanan's recollection of how the victims were shot and Dr. Escueta's conclusion on what transpired based on the injuries sustained by the victims. The trial court stated that the doctor's conclusion was based on the assumption that the victims were in a sitting position inside the jeep. However, it was possible that after the first burst of gunfire, the victims were hit and fell. During the second burst of gunfire, the victims were lying down or in a crouching position. Thus, the entry-exit points of the bullets did not entirely correspond to Malabanan's account, which was based on the assumption that the victims did not change their positions during the shooting incident. The trial court ruled that the accused conspired in committing the crime. Treachery was present, thereby qualifying the crime to murder. It appreciated the aggravating circumstances of evident premeditation, nighttime and use of motor vehicle. The trial court considered the crime as a complex crime of double murder punishable under Article 48 of the Revised Penal Code. However, at the time of the commission of the offense on April 13, 1991, there was a constitutional proscription on the imposition of the death penalty. Thus, each of the accused was sentenced toreclusion perpetua, and to pay damages to the heirs of the victims, as earlier quoted. Accused mayor Antonio L. Sanchez and Artemio Averion jointly appealed from the decision to the Supreme Court. In their sole assignment of error, accused mayor Sanchez and Averion contended that the trial court failed to recognize the material inconsistencies between Malabanan's testimony and the physical and scientific evidence presented before it. They pointed out the following inconsistencies, to wit: 1. Malabanan testified that a) when they fired at the victims, they were about the same elevation; 26 b) they used two (2) guns in killing the victims;27 c) they were at the left side of the victims when the shooting incident occurred.28 However, Dr. Escueta's autopsy report revealed that: 1) the assailants were at a lower elevation; 2) three (3) kinds of guns were used; and 3) based on the injuries, assailants were on the right side of the victims. 2. Malabanan's affidavit "Exhibit V" made on August 16, 1993, and sworn to on August 17, 1993, bears two (2) signatures of the affiant Malabanan and dated September 15, 1993. However, during cross-examination, Malabanan stated that he executed and signed the affidavit on one occasion only, August 15, 1993. 3. Aurelio Centeno testified in the case of Gomez-Sarmenta slayings that Malabanan only responded to the report that Peñalosa had been killed. He averred that contrary to Malabanan's report, the latter was not at the crime scene. The two accused further averred that the material inconsistencies between Malabanan's testimony and the autopsy and laboratory findings and conclusions seriously affect his credibility. They stressed that Malabanan has sufficient motive to implicate mayor Sanchez and Corcolon in the Peñalosa killings due to threats of

mayor Sanchez. They alleged that although generally alibi is considered a weak defense, there are times when it is worthy of credence, such as in this case. The Solicitor General supports the trial court's ruling that the prosecution adequately established the guilt of the accused beyond reasonable doubt. Malabanan positively identified the accused as the perpetrators. He testified in a categorical, straightforward, spontaneous and frank manner. The defense failed to satisfactorily show that Malabanan had an ill motive to testify falsely against the accused. The alleged threat to Malabanan's life was not adequately established or sufficient for him to falsely implicate the accused. As regards the supposed inconsistencies between Malabanan's account of the events vis á vis the autopsy and ballistic reports, the Solicitor General pointed out that both vehicles were running at the time of the ambush. It was a matter of instinct for the victims to shift positions as they were fired upon. Thus, contrary to Dr. Escueta's conclusion, it was not impossible that the victims were hit from the right side of their bodies, even if assailants were physically situated at the victim's left side. Hence, the apparent inconsistencies do not affect witness Malabanan's credibility. After a careful scrutiny of the evidence on record, we agree with the trial court that the prosecution adequately established accused's guilt beyond reasonable doubt. Malabanan gave a detailed account of the planning, preparation and the shooting incident. He narrated the participation of each of the accused, to wit: (1) the order given by mayor Sanchez to execute Peñalosa; (2) Averion's acquisition of a vehicle and two-way radios to be used for the operation and in driving the car; (3) Peradillas' act of relaying the information that Nelson Peñalosa's jeep was leaving the Velecina compound; 4) the way they pursued the victims; and 5) Corcolon and Peradilla's act of firing and killing the Peñalosas. The accused concentrated mainly on the seeming contradiction between the narration of Malabanan on how the victims were shot, and the physician's report on the location of injuries sustained by them. However, as the Solicitor General stated, both vehicles were running at the time of the shootout. It was unlikely that the victims drove in a straight line parallel to that of the assailants. In fact, Malabanan testified that while being fired at, Peñalosa's jeepney was running in zigzag manner.29 It was a natural reaction for Peñalosa to evade the assailants as much as possible and to try to dodge the bullets. Furthermore, the assailants fired the guns in automatic firing mode. Thus, the bullets burst out in different directions simultaneously. Hence, it was not impossible for the victims to be hit in different parts of the body. "This Court has held time and again that any minor lapses in the testimony of a witness tend to buttress, rather than weaken, his or her credibility, since they show that he or she was neither coached nor were his or her answers contrived. Witnesses are not expected to remember every single detail of an incident with perfect or total recall."30 Furthermore, the fact that the trial court relied on the testimony of a single witness does not effect the verdict of conviction. Criminals are convicted, not on the number of witnesses against them, but on the credibility of the testimony of even one witness, who is able to convince the court of the guilt of the accused beyond a shadow of doubt.31 What witness can be more credible than someone who was in the planning, preparation and execution of the crime. The inconsistency between the affidavit and testimony of Malabanan is too minor to affect his credibility. At any rate, we have held that affidavits are generally subordinate in importance to open court declarations. Affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to him.32 Accused-appellants raised that Malabanan's delay in reporting the involvement of the accused in the crime casts doubt on his credibility. However, jurisprudence teaches us that delay in revealing the identity of the perpetrators of a crime does not necessarily impair the credibility of a witness, especially where such witness gives a sufficient explanation for the delay.33 It was natural for Malabanan to keep silent during that time for, aside from being a co-conspirator, mayor Sanchez was a powerful opponent. Consequently, we find that accused-appellant's defenses of alibi and denial are bereft of merit. The defenses of alibi and denial are worthless in the face of positive testimony of a witness showing the involvement of each of the accused. However, we disagree with the trial court that the accused committed a single complex crime of double murder. Article 48 of the Revised Penal Code provides that when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means of committing the other, the penalty for the more serious crime in its maximum period shall be imposed.

The question is whether the act of shooting the victims using armalites in automatic firing mode constitutes a single act and, thus, the felonies resulting therefrom are considered as complex crimes. We rule in the negative. In People v. Vargas, Jr., we ruled that "several shots from a Thompson sub-machine, in view of its special mechanism causing several deaths, although caused by a single act of pressing the trigger, are considered several acts. Although each burst of shots was caused by one single act of pressing the trigger of the submachinegun, in view of its special mechanism the person firing it has only to keep pressing the trigger of the sub-machinegun, with his finger and it would fire continually. Hence, it is not the act of pressing the trigger which should be considered as producing the several felonies, but the number of bullets which actually produced them."34 In the instant case, Malabanan testified that he heard three bursts of gunfire from the two armalites used by accused Corcolon and Peradillas. Thus, the accused are criminally liable for as many offenses resulting from pressing the trigger of the armalites. Therefore, accused are liable for two counts of murder committed against the victims, Nelson and Rickson Peñalosa, instead of the complex crime of double murder. Evidently, treachery was present in the execution of the crimes. The attack against the victims, who were unarmed, was sudden, catching them unaware and giving them no opportunity to defend themselves. 35 The presence of treachery qualifies the crimes to murder. Conspiracy is likewise adequately established. Notwithstanding the fact that mayor Sanchez was not at the crime scene, we are convinced that he was not only a co-conspirator, he was the mastermind of the ambush slayings or the principal by inducement.36 Malabanan testified that Nelson Peñalosa was killed upon order of mayor Sanchez. After the commission of the crime, the assailants reported to mayor Sanchez. In conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that the participants performed specific acts with such closeness and coordination as unmistakably to indicate a common purpose or design in bringing about the death of the victim. Conspiracy renders appellants liable as co-principals regardless of the extent and character of their participation because in contemplation of law, the act of one conspirator is the act of all.37 The trial court properly appreciated the existence of evident premeditation. The prosecution clearly showed the presence of the following requisites: a) the time when the accused determined to commit the crime; b) an act manifestly indicating that the accused had clung to their determination; and c) sufficient lapse of time between such determination and execution to allow them to reflect upon the consequences of their acts. 38 As clearly as 10:00 in the morning, the accused had conspired to kill Nelson Peñalosa. They even looked for twoway radios and a vehicle to be used for the operation. Indeed, sufficient time had lapsed to allow the accused to reflect upon the consequences of their actions. Accused specifically used a motor vehicle to execute the crime. Thus, the aggravating circumstance of use of a motor vehicle must be appreciated. However, we cannot appreciate the generic aggravating circumstance of nighttime; while the crime was committed at night, the prosecution failed to show that the malefactors specifically sought this circumstance to facilitate the criminal design.39 The fact that the crime happened at 7:00 in the evening does not indicate that accused made use of the darkness to conceal the crime and their identities. At the time of the commission of the crime on April 13, 1991, the penalty for murder under Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to death. Considering the presence of aggravating circumstances, the accused should be sentenced to the death penalty for each murder. However, in view of the constitutional proscription of the death penalty at that time, each of the accused is sentenced to two (2) penalties of reclusion perpetua. Regarding the civil liability of the accused, the trial court ordered the accused to pay the heirs of Nelson and Rickson Peñalosa each, the sum of P100,000.00, P50,000.00 as actual damages, P50,000.00 as moral damages, and P30,000.00 as exemplary damages, and to pay the costs. The P50,000.00 award as actual damages should be deemed as indemnity for the untimely demise of the victims. We have held that only expenses supported by receipts and which appear to have been actually expended in connection with the death of the victims may be allowed.40 No proof was presented to sustain the award of actual damages. Similarly, we can not award damages for loss of earning capacity. All that was presented in evidence was the testimony of the common law wife, Adelina Peñalosa, that Nelson earned P1,000,000.00 a year. We have held that "for lost income due to death, there must be unbiased proof of the deceased's average income. Selfserving, hence unreliable statement, is not enough."41

Considering the attendance of aggravating circumstances, we sustain the award of exemplary damages of P30,000.00, per victim, in accordance with Article 2230 of the Civil Code.42 As regards moral damages, we affirm the P50,000.00 awarded to the heirs of Rickson Peñalosa. 43 His mother, Adelina Peñalosa, testified to the suffering caused by his death.44 We also sustain the award of moral damages to the heirs of Nelson Peñalosa. His common law wife testified to the mental anguish suffered by the family due to Nelson's death.45 Under Article 2206 of the Civil Code, the spouse, legitimate and illegitimate descendancts and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. However, the common law wife is not entitled to share in the award of moral damages.1âwphi1.nêt WHEREFORE, the Court MODIFIES the decision of the Regional Trial Court, Branch 160, Pasig City, and finds accused-appellants Antonio L. Sanchez and Artemio Averion guilty beyond reasonable doubt of two (2) counts of murder, and sentences each of them to suffer two (2) penalties of reclusion perpetua, and each to pay jointly and severally the respective heirs of victims Nelson and Rickson Peñalosa, as follows: 1) Indemnity for death - P50,000.00 2) Moral damages -

50,000.00

3) Exemplary damages - 30,000.00 Total -

P130,000.00 =========

With costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 96765 July 5, 1993 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SERGIO CURARATON y MONINIO, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for the accused. MELO, J.: Sergio Curaraton y Moninio was charged with the crime of murder allegedly committed as follows: That on or about December 12, 1989, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a bolo, with treachery and cruelty and outraging the corpse of the victim, with intent to kill, willfully, unlawfully and feloniously attacked, assaulted and hacked with said bolo one Timoteo Cabagte, thereby inflicting upon the latter mortal wounds which caused his death. CONTRARY TO LAW. Davao City, Philippines, December 20, 1989. (p. 13, Rollo.) After trial on merits due to a plea of not guilty being entered, the court a quo rendered a decision on December 4, 1990, disposing: WHEREFORE, the Court finds the accused Sergio Curaraton guilty beyond reasonable doubt of the crime of murder with the attendant circumstances of cruelty and disregard of the age of his victim, Timoteo Cabagte, and hereby sentences him to suffer reclusion perpetua and to indemnify his heirs in the amount of P30,000.00 for his death and P3,000.00 for his burial. Accused-appellant now seeks reversal on the basis of self-defense, or "on the assumption that his conviction is in order", that he be credited the mitigating circumstance of voluntary surrender.

The factual setting of the case, as depicted by the Solicitor General in his counter-statement of facts, which, after a review of the record, we find to be fully supported by the evidence and which we, therefore, hereby adopt, is as follows: In the evening of December 12, 1989, Sergio Tonacao was at his house in Kutson, Biao, Guianga, Tugbok, Davao City. At about 10:00 p.m., appellant appeared outside his house armed with a bolo and a big stone and challenged Tonacao to come down and fight. Tonacao advised appellant to go home and that they would just talk about the matter the next day (pp, 3-5, TSN Aug. 28,1990). Appellant responded that he wanted to settle the matter amicably with Tonacao that same night. Tonacao agreed and he came down from his house. Appellant shook hands with him and also with Timoteo Cabagte, Tonacao's brother-in-law, who joined them after coming from the house of Tonacao's neighbor about 40 meters away. Appellant told Tonacao: "Tocayo (name sake), you are not involved in this." (p. 5). Appellant, who was 37 years old, addressed Cabagte, who was 54 [should be 65] years old, as "Manong" as they shook hands: "Manong, you have nothing to do with this." (p. 5). After they shook hands, Cabagte went back to his neighbor Claudio Capricio's house. Tonacao noticed that appellant followed Cabagte (pp. 4, 5, Id.) and hid behind a coconut tree along the path leading to the house of Capricio about 10 armslength from Tonacao's house (p. 6). Tonacao was curious why appellant was still holding the stone and bolo so he surreptitiously went closer to observe (p. 6). When Tonacao was about two armslength from appellant, Cabagte came walking back along the trail and as Cabagte passed the coconut tree where appellant was hiding, Tonacao saw appellant, suddenly strike Cabagte with the rock he was holding. Cabagte fell on the ground and appellant immediately thrust his bolo into Cabagte's body several times. Not satisfied with felling Cabagte, appellant chopped the victicm's body with the same bolo, hitting the victim on the left forehead, left portion of the face, and at the back, even as the victim lay motionless and dead (p, 7). Tonacao was afraid that appellant would turn on him, and so he did not go to the victim's aid (p. 7). Tonacao sought the assistance of Danilo Palad and together they went to the scene of the crime and found only the mutilated corpse of Cabagte. Appellant was no longer at the scene (p. 8). The Necropsy Report (Exh. G) prepared and signed by Dr. Napoleon dela Peña, District Health Officer at Calinan, Davao City, described the location and severity of the eleven wounds suffered by the victim, to wit: (i) The first wound is a "hack wound, 13 cm. length, 4 cm. depth, occipital, left" located at the back portion of the head, running diagonally; (ii) the second wound is a "hack wound, 4 cm. length, 2 cm. depth, mandibular, left" located at the jaw; (iii) the third wound is a "hack wound, 5 cm. length, 4 cm. depth, mandibulomaxilliary left", located at the left temple running down to the jaw; (iv) wound no. 4 is an "incised wound, 2 cm. length, one cm. depth" located on the nose bridge; (v) wound no. 5 is a "lacerated wound, 2 cm. length, scalp depth supraorbital right" located at the eyebrow; (vi) wound no. 6 is a "hack wound, 7 cm. length, 5 cm. depth, lumbar right" at the right side of the body below the ribs; (vii) wound no. 7 is "amputated forearm, distal third right" — the right hand was completely cut off, about 2 inches from the wrist; (viii) wound no. 8 is "lacerated wound, one cm. length ½ cm. depth, anterior axillary line, axilla "from front of the right armpit going inside the armpit; (ix) wound no. 9 is a "hack wound, 15 cm. length, 5 cm. depth, scapular, left", at the back just below the left shoulder, running down to the anterior axillary line, below armpit; (x) wound no. 10 is a "hack wound, 13 cm. length, 6 cm. depth, suprascapular, right" from just below the right shoulder at the back running horizontally towards the end of the shoulder; and (xi) wound no. 11 is a "hack wound, 7 cm. length, 5 cm. depth, gluteal, left" at the left buttocks (pp. 42-47, TSN 8-30-90). The cause of death was massive hemorrhage secondary to hack wounds. The wounds could have been caused by a sharp-bladed instrument. The most serious and fatal wound is wound no. 1 (hack wound, 13 cm. length, 4 cm. depth, occipital) because it involved the brain — that wound alone could already have caused the death (pp. 47-48, TSN 8-30-90). At around 11:00 p.m. that same night, Epifanio Cabagte, brother of the victim reported the killing of his brother at the hands of appellant to the Tugbok Patrol Station. Patrolman Limbaco went to the scene of the crime to investigate and thereafter recorded the incident in the blotter. The following morning he received information from the Calinan Patrol Station that appellant had surrendered himself and the bolo (Exhibit "A") at said station where the incident was also entered in the blotter (Exhibit "B"). At 7:30 in the morning of December 13, Pat. Limbaco dispatched three policemen to Calinan to take custody of appellant and the bolo. Appellant denied that prior to the incident he had gone to the house of Tonacao and shook hands with Tonacao and Cabagte but claimed that he was on his way home, after cleaning his tuba container, when somebody struck him down with a nipa frond. He stood up and hit back. (pp. 4-8, Appellee's Brief.) Under his first assigned error, accused-appellant contends that the trial court erred in not acquitting him on the ground of self-defense. He must, however, understand that an accused who puts up self-defense bears the

burden of establishing the elements of self-defense by clear and convincing evidence to the satisfaction of the court (Ortega vs. Sandiganbayan, 170 SCRA 38 [1989]). Should he fail to do so, his conviction follows as a matter of course. Said elements are the following: 1. Unlawful aggression on the part of the victim. 2. Reasonable necessity of the means EMPLOYED to prevent or repel the aggression, and 3. Lack of sufficient provocation on the part of the person defending himself (Ortega vs. Sandiganbayan, supra, p. 42.) It is essential that the first element of self-defense, unlawful aggression initiated by the victim, must be clearly shown for in its absence, self-defense cannot exist (Ortega vs. Sandiganbayan, supra). The evidence shows that, after accused-appellant assured Cabagte, the victim, addressing and telling him, "Manong, you have nothing to do with this", and after they shook hands, Cabagte left to go back to the house of his neighbor. Accused-appellant, however, thereafter waited in ambush for Cabagte behind a coconut tree along the path leading to the house of Capricio. When Cabagte by the coconut tree behind which accussed-appellant was lurking, accused-appellant suddenly sprang out of ambush and struck Cabagte with the rock he was holding, stunning and felling him. Thereupon, accused-appellant immediately thrust his bolo into Cabagte's body several times and hacked the fallen Cabagte repeatedly at several parts of his body as he lay still and motionless. The claim of accused-appellant that he was attacked by Cabagte with a nipa frond is bereft of credence considering that Cabagte was the first one to leave the house of Sergio Tonacao peacefully winding his way toward the house of his neighbor Claudio Capricio, lulled into a false sense of security that accused-appellant bore him no enmity by accused-appellant's conciliatory but deceitful declaration that "Manong, you have nothing to do with this." Even assuming that Cabagte indeed attacked accused-appellant with a nipa frond, the killing of Cabagte can not be justified for accused-appellant EMPLOYED unreasonable means to repel the alleged attack. We doubt that a nipa frond can inflict serious injuries much less cause death. Accused-appellant's reaction to this imagined aggression was clearly excessive and unnecessary as shown by the multiple wounds he had inflicted on the victim. We, therefore, find that accused-appellant has failed to establish that he acted in self-defense when he killed Cabagte. Consequently, it is no longer necessary to discuss the other elements of self-defense. The crime committed by accused-appellant is murder qualified by treachery as the killing was sudden and unexpected (People vs. Liston, 179 SCRA 415 [1989]). The killing, however, was not attended by the aggravating circumstances of cruelty and disregard of age as erroneously found by the trial court. Cruelty is to be taken into consideration where the multiple wounds of the victim were inflicted unnecessarily while he was still alive in order to prolong his physical suffering (People vs. Curiano, 9 SCRA 323 [1963). The evidence in the case at bar shows that, when accused-appellant continued hacking Cabagte, the latter was already dead or at least totally unconscious and could no longer feel or experience additional pain that would prolong his physical suffering. Neither can the aggravating circumstance of age be appreciated because the same is absorbed by treachery (People vs. Gervacio, 24 SCRA 960 [1968]). The mitigating circumstance of voluntary surrenders should have been considered by the trial court in the determination of the penalty. The evidence shows that immediately after slaying Cabagte, accused-appellant walked all the way straight to the Calinan Patrol Station in Calinan, Davao City to surrender. The crime committed is murder qualified by treachery, with the mitigating circumstance of voluntary surrender and with no aggravating circumstance. The penalty for murder under Article 248 of the revised Penal Code isreclusion temporal in its maximum period to death. Pursuant to Article 64 (2) in relation to Article 77 of the Revised Penal Code, the penalty to be imposed should be 17 years, 4 months, and 1 day, as minimum, to 20 years, as maximum, both within the range of reclusion temporal. In accordance with the Indeterminate Sentence Law which applies in this case, the minimum should be within range of the penalty next lower in degree to be fixed in any of its periods in the discretion of the Court. Under Article 61, paragraph 3, of the Revised Penal Code, when the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, as in this case, the penalty next lower is degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum of that immediately following in the scale of penalties. The penalty next lower in degree, therefore, ranges from the maximum of prison mayor to the medium of reclusion temporal (People vs. Ordiales, 42 SCRA 238 [1971]).

The award of civil indemnity should be increased to P50,000.00 in accordance with the more recent pronouncements of this Court (People vs. Jereza, 189 SCRA 690 [1990]; People vs. Sazon, 189 SCRA 700 [1990; People vs. Lugto, 190 SCRA 754 [1990]; People vs. Iligan, 191 SCRA 643 [1990]). WHEREFORE, the decision of the trial court is hereby AFFIRMED with the following modifications: 1. The penalty shall be an imprisonment term to ten (10) years and one (1) day of prison mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum (People vs. Alcantara, 163 SCRA 783 [1988]); and 2. The civil indemnity to be paid by accussed-appellant to the heirs of the victim is increased to Fifty Thousand Pesos (P50,000.00). SO ORDERED.