Criminal Law

PEOPLE VS FELOTEO SECOND DIVISION

[G.R. No. 124212. September 17, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFREDO FELOTEO, accused-appellant. AMENDED DECISION PUNO, J.: Accused WILFREDO FELOTEO was charged with and convicted of the crimes of Murder, as defined and penalized under Article 248 of the Revised Penal Code, and Illegal Possession of Firearm, a violation of Section 1 of Presidential Decree No. 1866. The Informations against accused read: In Criminal Case No. 11109 "That on or about the 6th day of May, 1993, in the evening, at Sitio Nagbaril, Barangay Bintuan, Municipality of Coron, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with evident premeditation and treachery, while armed with a firearm and with intent to kill, did then and there willfully, unlawfully and feloniously shoot with his firearm, to wit: an armalite rifle, one SONNY SOTTO, hitting him on the vital part of his body and inflicting upon him a gunshot wound on the left side of his chest, thru and thru, which injury was the direct and immediate cause of his instantaneous death. (emphasis ours) "CONTRARY TO LAW and committed with aggravating circumstance of treachery." In Criminal Case No. 11644 "That on or about the 6th day of May, 1993, and prior thereto, at Sitio Nagbaril, Barangay Bintuan, Municipality of Coron, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and there willfully, unlawfully and feloniously have in his possession, custody and control, one armalite rifle with Serial No. 9035914 and ammunitions, without any license or permit to possess the same and that this firearm was used in shooting to death one SONNY SOTTO in a case of Murder filed with the RTC of Palawan and Puerto Princesa City, docketed as Criminal Case No. 11109 and that this crime have no relation or (is not) in furtherance of the crime of rebellion or subversion. (emphasis ours) "CONTRARY TO LAW." When arraigned, accused pled not guilty. Trial ensued. The records show that in the evening of May 6, 1993, the victim, SONNY SOTTO, and his friends, ARNEL ABELEDA and JOHNNY ABREA, were walking along the highway in Barangay Bintuan, Coron, Province of Palawan. They had a few drinks earlier that day and were on their way home to Sitio Nagbaril. Abrea walked ahead of the group, about thirteen (13) meters away from Sotto, followed by Abeleda. They were in a lively mood as Abeleda playfully walked backwards, facing Sotto.[1] The accused, WILFREDO FELOTEO, appeared on the opposite side of the road and walked past Abrea and Abeleda. He was armed with an armalite rifle. Abeleda and Abrea recognized the accused, their barriomate, as the moon was shining brightly. They did not pay much attention to the accused as Abeleda was playing "habulan" with Sotto. Without uttering a word, the accused aimed the armalite at Sotto and pressed its trigger. Sotto was hit above the left chest and fell on the ground, face down. Abeleda and Abrea scampered away to find help, while the accused fled from the crime scene. [2] Ten (10) minutes later, Abeleda and Abrea, accompanied by Barangay Tanod Tito Abrina and a certain Inyong Adion, returned to the locus criminis. They found Sotto dead. Sotto was brought to the hospital for autopsy. The Autopsy Report showed that he sustained a gunshot wound, with the bullet entering the left side of his collarbone and exiting at the spinal cord. The bullet came from an M-16 armalite rifle. He also had abrasions on the knees and face. Dr. Hew G. Curameng of the Palawan Provincial Hospital opined that Sotto fell on his knees before he slumped on the ground, face down. There were no powder burns on his body, indicating that the victim was shot from a distance. The cause of death was massive blood loss secondary to gunshot wound.[3] The firearm used in the shooting incident belongs to SPO2 Roman Adion. On May 6, 1993, SPO2 Adion went to the house of Teofisto Alaquin in Sitio Nagbaril. He brought with him his official service firearm, an M-16 armalite rifle,[4] as he has been ordered to go to Jandanao the next day to investigate a land dispute. He slept early. At around 6:30 p.m., Alaquin woke him up and informed him that the accused stole his armalite. SPO2 Adion, together with Nazario Adion and Frank Adion, immediately looked for the accused. They heard a gunshot coming from a distance of about four hundred (400) meters and rushed to the place where it emanated. They saw Sotto lying prostrate on the road, shot on the chest. SPO2 Adion suspected that his armalite was used in the shooting incident and he continued his hunt for the accused. The next day, May 7, 1993, at 5:00 a.m., he nabbed the accused in Sitio Cabugao, five (5) kilometers away from the crime scene. The accused surrendered the armalite to him. Upon inspection, SPO2 Adion found nineteen (19) bullets left in the armalite. There were twenty (20) bullets inside the armalite chamber and magazine before it was stolen. [5]

SPO4 Jose Ansay, Chief of the Firearm and Explosive Unit of the Philippine National Police (PNP) in Tiniguiban, Puerto Princesa City, Palawan, affirmed that the accused was not duly licensed to carry a firearm.[6] The accused denied that he stole SPO2 Adion's armalite and alleged that the shooting of Sotto was an accident. He averred that on May 6, 1993, he was in his sister's house in Barangay Bintuan, Coron, when SPO2 Adion passed by and invited him over to the place of Teofisto Alaquin in Nagbaril. They boarded SPO2 Adion's tricycle and arrived at Nagbaril at about 3:00 p.m. Frank Adion dropped by the house of Alaquin and borrowed the tricycle of SPO2 Adion. Frank Adion later returned on foot and told SPO2 Adion that the tricycle's engine broke down so he left it along the road. SPO2 Adion checked on his tricycle and left behind his armalite rifle. Before leaving, he instructed the accused to wait for him at Alaquin's house.[7] After thirty minutes, the accused decided to follow SPO2 Adion. He took the armalite and walked the road leading to Bintuan. At about 7:00 p.m., he met Sonny Sotto's group. They zigzagged as they walked. In jest, the accused said to Sotto, "Boots, don't get near me, I'll shoot you." He pointed the armalite to Sotto and pressed its trigger, allegedly unaware that it was loaded. It fired and hit Sotto. The accused fled but was apprehended by SPO2 Adion the following day. He told SPO2 Adion that he accidentally shot Sotto.[8] After trial, the accused was found guilty as charged.[9] He was sentenced to suffer the penalties of reclusion perpetua, for murder, and imprisonment of twenty (20) years, for illegal possession of firearm. He was further ordered to pay the heirs of Sotto the amount of fifty thousand pesos (P50,000.00), as civil indemnity. In this appeal, appellant contends: "THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY AS ATTENDING THE COMMISSION OF THE CRIME ALLEGED AND IN HOLDING ACCUSED-APPELLANT GUILTY OF MURDER IN THE KILLING OF SONNY SOTTO." We affirm the judgment of conviction with modification. We reject the argument of the appellant that he should not have been convicted for murder as treachery was not duly established by the prosecution. Allegedly, Sotto knew of the impending attack for it was frontal. Moreover, Sotto was warned, albeit jokingly, that he was going to be shot. Under par. 16, Article 14 of the Revised Penal Code, the qualifying circumstance of treachery is present when the offender employs means, methods, or forms in the execution of the crime which tend directly and especially to insure its execution without risk to himself arising from any defensive or retaliatory act which the victim might make.[10] The settled rule is that treachery can exist even if the attack is frontal if it is sudden and unexpected, giving the victim no opportunity to repel it or defend himself. What is decisive is that the execution of the attack, without the slightest provocation from a victim who is unarmed, made it impossible for the victim to defend himself or to retaliate.[11] In the case at bar, treachery is present for there was a sudden attack against the unarmed Sotto. When Sotto and his friends encountered appellant on the road, they were in a "jovial mood" as they just came from a drinking spree. Although they saw appellant carrying an armalite, they did not suspect anything untoward to happen. However, without any provocation, appellant shot Sotto. The fact that the attack was frontal cannot negate treachery. The shooting was unexpected. There is no showing that the alleged warning given by appellant to Sotto afforded the latter sufficient time to defend himself. Indeed, Sotto could not defend himself as he was unarmed and a bit drunk-- as observed by the appellant himself, the victim was walking in a zigzag manner. There was no way for Sotto to avoid the armalite bullet. We now come to the penalty imposed on appellant for the illegal possession of firearm in view of the recent amendments to P.D. No. 1866 by R.A. No. 8294. Appellant was convicted under Article 248 of the Revised Penal Code, for murder, and under Section 1 of P.D. No. 1866, for illegal possession of firearm, the governing laws at the time the crimes were committed. Section 1 of P.D. 1866 provides: "SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.- The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm, ammunition of machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed." (emphasis ours) Republic Act No. 8294, amended P.D. No. 1866, by reducing the penalties for simple and aggravated forms of illegal possession of firearms.[12] The law now provides: "Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.- The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm such as rimfire handgun, .380 or .32 and other firearm of similar firepower, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. "The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .45 and also lesser caliber firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. "If homicide or murder is committed with the use of unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. (emphasis ours) xxx

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"Sec. 5. Coverage of the Term Unlicensed Firearm. - The term unlicensed firearm shall include: 1) firearms with expired license, or 2) unauthorized use of licensed firearm in the commission of the crime." Clearly, the penalty for illegal possession of high powered firearm is prision mayor in its minimum period and a fine of P30,000.00. In case homicide or murder is committed with the use of unlicensed firearm, such use of unlicensed firearm shall be merely considered as an aggravating circumstance. The enactment of R.A. No. 8294 can be given retroactive effect as it favors the appellant. [13] So we held in People vs. Simon,[14] viz: "Since obviously, the favorable provisions of Republic Act 7659 could neither have been involved or invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus: `x x x. The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty.' If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and pragmatic consideration would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus." (footnote omitted) Thus, in the recent case of People vs. Molina, et al . ,[15] the Court (En Banc) gave retroactive application to R.A. No. 8294 considering that, under the new law, the offenses of murder and illegal use or possession of firearm are integrated into a single offense. We held: "x x x. The intent of Congress to treat as a single offense he illegal possession of firearm and the commission of murder or homicide with the use of such unlicensed firearm is clear from the following deliberations of the Senate during the process of amending Senate Bill No. 1148: 'Senator Drilon. On line 18, we propose to retain the original provision of law which says, 'If homicide or murder is committed with the use of the unlicensed firearm.' And in order that we can shorten the paragraph, we would suggest and move that the use of the unlicensed firearm be considered as an aggravating circumstance rather than imposing another period which may not be in consonance with the Revised Penal Code. 'So that (if) I may read the paragraph in order that it can be understood, may I propose an amendment to lines 18 to 22 to read as follows: 'If homicide or murder is committed with the use of unlicensed firearm, SUCH USE OF AN UNLICENSED FIREARM SHALL BE CONSIDERED AS AN AGGRAVATING CIRCUMSTANCE.' xxx

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'Senator Santiago. Mr. President. 'The President. With the permission of the two gentlemen, Senator Santiago is recognized. 'Senator Santiago. Will the principal author allow me as coauthor to take the [f]loor to explain, for the information of our colleagues, the stand taken by the Supreme Court on the question of whether aggravated illegal possession is a complex or a compound offense. May I have the [f]loor ? 'Senator Revilla. Yes, Mr. President. 'Senator Santiago. Thank You. 'In 1995, the Supreme Court held that when the crime of killing another person is committed with the use of an unlicensed firearm, the ruling in the case of People vs. Barros was that the crime should only be illegal possession of firearm in its aggravated form. But in the later case, in May 1996, in the case of People vs. Evangelista, the court apparently took another position and ruled that when a person is killed with the use of an unlicensed firearm, it is possible to file two separate information[s] -- one for murder and one for illegal possession of firearms. 'In other words, in two successive years, the Supreme Court issued two different ways of treating the problem. The first is to treat it as one crime alone in the aggravated form, and the second is to treat it as two separate crimes. 'So at this point, the Senate has a choice on wether we shall follow the 1995 or the 1996 ruling. The proposal of the gentleman, as a proposed amendment, is to use the 1995 ruling and to consider the offense but in an aggravated form. That could be acceptable also to this coauthor. 'The Presiding Officer [Sen. Flavier.] So, do I take it that the amendment is accepted ?

'Senator Revilla. Yes, it is accepted, Mr. President. 'The Presiding Officer [Sen. Flavier.] Thank you. Is there any objection to the amendment? [Silence] There being none, the amendment is approved.' "Although the explanation of the legal implication of the Drilon amendment may not have been very precise, such modification, as approved and carried in the final version enacted as RA 8294, is unequivocal in language and meaning. The use of an unlicensed firearm in a killing is now merely an aggravating circumstance in the crime of murder or homicide. This is clear from the very wordings of the third paragraph of Section 1 of RA 8294, which reads: 'If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.' "Furthermore, the preceding paragraphs, also in Section 1, state that the penalties for illegal possession of firearms shall be imposed 'provided that no other crime is committed.' In other words, where murder or homicide was committed, the separate penalty for illegal possession shall no longer be meted out since it becomes merely a special aggravating circumstance. "This statutory amendment may have been an offshoot of our remarks in People vs. Tac-an and People vs. Quijada. 'Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term penalty for illegal possession of firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an: 'There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or murder, the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code. 'A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance.' In line with our decision in People vs. Molina, the appellant is liable only for murder under the Revised Penal Code. Further, in view of amendments introduced by R.A. No. 8294 to P.D. No. 1866, the use of the unlicensed firearm in killing the victim, Sonny Sotto, is no longer considered as a separate offense, instead, it is considered as an aggravating circumstance.[16] However, it will not affect the penalty of reclusion perpetua imposed against the appellant.[17] IN VIEW WHEREOF, we AFFIRM the trial court's judgment in Criminal Case No. 11109, sentencing the appellant, WILFREDO FELOTEO, to reclusion perpetua and ordering him to indemnify the legal heirs of the victim, Sonny Sotto, in the amount of P50,000.00. Appellant's conviction in Criminal Case No. 11644 is SET ASIDE. SO ORDERED. CASE DIGEST: People v Feloteo | 1998 | Puno, J. Facts: Wilfredo Feloteo was found guilty by the trial court of murder under Article 248 of the RPC and Illegal Possession of Firearm, a violation of Section 1 of PD 1866 and sentenced to reclusion perpetua and 20 years respectively. In the evening of May 6, 1993, the victim, Sonny Sotto, and his two friends were walking along the highway after a few drinks earlier that day and were on their way home, having a lively mood. At one point, the accused appeared at the opposite side of the road and walked past the victim‘s two friends. The two recognized accused under the bright moon as he was a barriomate. The three friends did not pay much attention to accused as they were playing ―habulan‖ and without a uttering a word, the accused aimed the armalite at Sotto and pulled the trigger. Sotto, was hit above the chest and fell to the ground, face down. The two friends scampered away to find help while the accused fled. Sotto was later found dead. The armalite belong to SPO2 Roman Adion said accused stole the gun from him. Accused obviously denied, saying his purpose for carrying the gun was to bring it to SPO2 Adion as the latter went somewhere (to check his borrowed tricycle whose engine broke down) after leaving the gun at the house where accused was. Accused then walked past the victim‘s group at around 7PM. The group zigzagged as they walked. In jest, accused said to victim, ―Boots, don‘t get near me, I‘ll shoot you‖. He pointed the gun and pulled the trigger, allegedly unaware that it was loaded. It fired and hit Sotto. The accused was apprehended the next day by SPO2 Adion. On appeal, accused denies that the qualifying circumstance of treachery for murder was present. Issue: 1.

Was there treachery? Yes.

2.

Should accused suffer the two penalties? No.

Ratio: 1.

2.

There was treachery: a. Par. 16, Article 14 of RPC, the qualifying circumstance of treachery is present when the offender employs means, methods, or forms of execution which tend directly and especially to insure its execution without risk to himself arising from any defensive or retaliatory act which the victim might take. b. Accused said that the attack was frontal so Sotto knew it was impending; Also, Sotto was warned, albeit jokingly that he would be shot. c. SC rejects this saying that the settled rule is that treachery can exist even if the attack is frontal if it is sudden and unexpected, giving the victim no opportunity to repel or defend himself. Illegal possession of firearms should only be an aggravating circumstance in light of the amendments to PD 1866 by RA 8294: a. In the old Section 1 of PD 1866, if homicide or murder is committed with an unlicensed firearm, the penalty of death shall be imposed; b. RA 8294 amended this, deleting the penalty of death and considered the carrying of unlicensed firearm only as an aggravating circumstance; c. It was approved in 1997 but is retroactively applied since it favours the accused; court cites People v Molina; d. Intent of Congress: two cases from Supreme Court were presented in a senate session – People v Barros (1996) and People v Evangelista (1996); i. Former case ruled that illegal possession of firearm (when killing of another person is committed) should only be an aggravating circumstance; while in the latter case, it is possible to file two separate informations – one for murder and one for illegal possession of firearms; ii. So the senate chose between integrating the crimes (taking illegal possession in its aggravated form) and treating the two as separate crimes; Senate chose the former; e. However, the penalty of reclusion perpetua of appellant is not affected since RA 7659 or the Death Penalty Law was enacted only on December 31, 1993, after the crime was committed in May 1993;

JUDGMENT: Affirmed with Modification. Reclusion perpetua and accused ordered to indemnify heirs with P50k. PEOPLE VS OJEDA THIRD DIVISION

[G.R. Nos. 104238-58. June 3, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. CORA ABELLA OJEDA, appellant. DECISION CORONA, J.: For review is the decision[1] dated June 21, 1991 of the Regional Trial Court of Manila, Branch 38, the dispositive portion of which read: WHEREFORE, the Court finds accused Cora Abella Ojeda guilty beyond reasonable doubt of the crime of Estafa as defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Rep. Act 4885, in Criminal Case No. 88-66228 and hereby sentences her to suffer a penalty of reclusion perpetua, with the accessories provided by law and with credit for preventive imprisonment undergone, if any, in accordance with Article 29 of the Revised Penal Code as amended, and to pay complainant Ruby Chua the amount of Two Hundred Twenty Eight Thousand Three Hundred Six (P228,306.00) Pesos with interests thereon from the time of demand until fully paid. Likewise, the Court also finds the said accused guilty for Violation of Batas Pambansa Blg. 22 in Criminal Cases Nos. 88-66230, 88-66232, 88-66235 to 88-66240, 88-66242, 88-66243, 88- 66245 to 88-66248 (14) counts and hereby sentences her to suffer a penalty of one year of imprisonment for each count. On the other hand, the other charges docketed as Criminal Cases Nos. 88- 66229, 88-66231, 88-66233, 88-66234, 88-66241 and 88-66244 are hereby dismissed for insufficiency of evidence. Costs against accused in all instances.[2] Appellant Cora Abella Ojeda was charged in 21 separate Informations for estafa in Criminal Case No. 88-66228 and for violation of Batas Pambansa (BP) 22 in Criminal Case Nos. 88-66229 to 88-66248. The Information charging Ojeda with estafa read: That on or about the first week of November, 1983, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud RUBY CHUA in the following manner, to wit: the said accused, well knowing that she did not have sufficient funds in the bank and without informing the said Ruby Chua of such fact drew, made out and issued to the latter the following post-dated Rizal Commercial Banking Corporation checks, to wit:

Check No. 1. 033550 2. 041782 3. 042935 4. 041799 5. 033530 6. 041714 7. 042942 8. 041783 9. 041800 10. 041788 11. 033529 12. 041784 13. 042901 14. 042902 15. 041785 16. 042903 17. 033532 18. 041786 19. 042905 20. 043004 21. 042907 22. 042906

Date

Amount Nov. 5, 1983 Nov. 5, 1983 Nov. 6, 1983 Nov. 9, 1983 Nov. 10, 1983 Nov. 10, 1983 Nov. 10, 1983 Nov. 12, 1983 Nov. 14, 1983 Nov. 15, 1983 Nov. 15, 1983 Nov. 18, 1983 Nov. 18, 1983 Nov. 23, 1983 Nov. 25, 1983 Nov. 29, 1983 Nov. 29, 1983 Nov. 30, 1983 Dec. 8, 1983 Dec. 10, 1983 Dec. 15, 1983 Dec. 18, 1983

P17,100.00 5,392.34 1,840.19 11,953.38 19,437.34 26, 890.00 1,941.59 5,392.34 11,953.39 3,081.90 19,437.34 5,392.34 11,953.38 11,953.38 5,392.34 11,953.38 13,603.22 5,392.34 11,953.39 2,386.25 11,953.38 11,953.39 P228,306.60

in payment of various fabrics and textile materials all in the total amount of P228,306.60 which the said accused ordered or purchased from the said RUBY CHUA on the same day; that upon presentation of the said checks to the bank for payment, the same were dishonored and payment thereof refused for the reason ‗Account Closed‘, and said accused, notwithstanding due notice to her by the said Ruby Chua of such dishonor of the said checks, failed and refused and still fails and refuses to deposit the necessary amount to cover the amount of the checks to the damage and prejudice of the said RUBY CHUA in the aforesaid amount of P228,306.60, Philippine currency. Contrary to law. The Informations charging Ojeda for violation of BP 22 were similarly worded except for the amounts of the checks, the check numbers and the dates of the checks: That on or about the first week of November 1983, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously make or draw and issue to RUBY CHUA to apply on account or for value Rizal Commercial Banking Corp. Check No. 041784 dated November 18, 1983 payable to Ruby Chua in the amount of P5,392.34, said accused well knowing that at the time of issue he/she/they did not have sufficient funds in or credit with the drawee bank or payment of such check in full upon its presentment, which check, when presented for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for insufficiency of funds, and despite receipt of notice of such dishonor, said accused failed to pay said complainant the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. Contrary to law. The pertinent facts of the case follow. Appellant Cora Abella Ojeda used to buy fabrics (telas) from complainant Ruby Chua. For the three years approximately she transacted business with Chua, appellant used postdated checks to pay for the fabrics she bought. On November 5, 1983, appellant purchased from Chua various fabrics and textile materials worth P228,306 for which she issued 22 postdated checks bearing different dates and amounts. Chua later presented to the bank for payment check no. 033550 dated November 5, 1983 in the amount of P17,100[3] but it was dishonored due to ―Account Closed.‖[4] On April 10, 1984, Chua deposited the rest of the checks but all were dishonored for the same reason. [5] Demands were allegedly made on the appellant to make good the dishonored checks, to no avail. Estafa and BP 22 charges were thereafter filed against appellant. The criminal cases were consolidated and appellant, on arraignment, pleaded not guilty to each of the charges. On the whole, appellant‘s defense was grounded on good faith or absence of deceit, lack of notice of dishonor and full payment of the total amount of the checks. With the exception of six checks[6] which did not bear her signature, appellant admitted that she issued the postdated checks which were the subject of the criminal cases against her. She, however, alleged that she told Chua not to deposit the postdated checks on maturity as they were not yet sufficiently funded. Appellant also claimed that she made partial payments to Chua in the form of finished garments worth P50,000. This was not rebutted by the prosecution. The trial court convicted appellant of the crime of estafa as defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal Code (RPC), and sentenced her to reclusion perpetua. The trial court also convicted appellant of violation of BP 22 for issuing bouncing checks. However, the court a quo held her guilty of only 14 counts out of the 22 bouncing checks issued. The court reasoned: xxx This is due to the fact that of the 22 checks, two of them are not covered by the indictment. This refers to Check No. 042935 dated November 6, 1983 in the amount of P1,840.19 (Exhibit D) and Check No. 042942 dated November 10, 1983 in the amount of P1,941.59 (Exhibit F). And of the total number of checks, six of

them were not signed by the accused but by the latter‘s husband (Exhibits C,H,J,M,R and O). The accused should not be liable for the issuance of the 6 checks in the absence of any showing of conspiracy.[7] Appellant appealed to this Court, seeking acquittal. Her counsel, however, failed to file the appellant‘s brief within the prescribed period. Her appeal was thus dismissed in a resolution of this Court dated October 14, 1992. [8] In her motion for reconsideration, appellant asked this Court to reverse its order of dismissal in the interest of substantial justice and equity.[9] We initially found no compelling reason to grant her motion and resolved to deny with finality appellant‘s MR in a resolution dated February 3, 1993.[10] Appellant thereafter filed a ―Second and Urgent Motion for Reconsideration,‖ attaching thereto an ―Affidavit of Desistance‖ of complainant Ruby Chua which stated in part: xxx

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2. that the defendant Mrs. Cora Ojeda has already fully paid her monetary obligation to me in the amount of P228,306.00 which is the subject of the aforementioned cases; xxx

xxx

xxx.

5. That as the private complainant, I am now appealing to the sense of compassion and humanity of the good justices of the Supreme Court to reconsider the appeal of Mrs. Cora Ojeda and I solemnly pray that the criminal liability be extinguished with her civil liability. [11] In a resolution dated March 17, 1993,[12] this Court denied the second MR for having been filed without leave of court. In the same resolution, this Court ordered the entry of judgment in due course. Appellant thereafter filed another motion dated April 21, 1993, praying that she be recommended to then President Fidel V. Ramos for executive clemency. In support of such motion, she once more attached the affidavit of desistance[13] of complainant Ruby Chua which categorically declared that ―the defendant, Ms. Cora Ojeda, (had) already fully paid her monetary obligations to (Chua) in the amount of P228,306 which (was) the subject of the aforementioned cases.‖ [14] In view of such special circumstances, this Court issued a resolution dated June 9, 1993 [15] recalling its resolutions dated October 14, 1992, February 3, 1993 and March 17, 1993 for humanitarian reasons and in the interest of justice, and in order that this Court may resolve appellant‘s appeal on the merits.[16] Hence, the instant appeal with the following assignments of error: I. THE LOWER COURT ERRED IN FINDING THAT DECEIT WAS EMPLOYED BY ACCUSED APPELLANT WHEN SHE ISSUED THE CHECKS TO THE PRIVATE COMPLAINANT. II. THE LOWER COURT ERRED IN NOT FINDING THAT THE ISSUANCE BY THE ACCUSED-APPELLANT OF THE CHECKS TO THE PRIVATE COMPLAINANT WAS MERELY A MODE OF PAYMENT WHICH ARRANGEMENT HAD BEEN THEIR PRACTICE FOR THREE (3) YEARS. III. THE LOWER COURT ERRED IN NOT FINDING THAT GOOD FAITH IS A VALID DEFENSE AGAINST ESTAFA BY POSTDATING A CHECK IV. THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF FOURTEEN (14) COUNTS OF B.P. 22 WHEN THERE WAS NO PROOF OF NOTICE OF DISHONOR TO THE ACCUSED. V. THE LOWER COURT ERRED IN NOT FINDING THAT SINCE 13 OF THE 14 CHECKS WERE DEPOSITED ONLY AFTER THE LAPSE OF THE 90 DAY PERIOD, HENCE, THE PRIMA FACIE PRESUMPTION OF KNOWLEDGE DOES NOT APPLY. [17] Appellant firmly denies any criminal liability for estafa. She argues there was no deceit employed when she issued the checks because she never assured Chua that the checks were funded. Chua allegedly knew all along that the checks were merely intended to guarantee future payment by appellant. Appellant further claims good faith in all her transactions with Chua for three years. She explained that her failure to fund the checks was brought about by the collapse of the country‘s economy in the wake of the Aquino assassination in 1983. The capital flight and financial chaos at that time caused her own business to shut down when her customers also failed to pay her. Despite the closure of her business, appellant maintains that she did her best to continue paying Chua what she owed and, when she could no longer pay in cash, she instead paid in kind in the form of finished goods. But these were not enough to cover her debts. Nevertheless, she spared no effort in complying with her financial obligations to Chua until she was gradually able to pay all her debts, a fact fully admitted as true by complainant in her affidavit.

From the foregoing, appellant contends that the element of deceit thru abuse of confidence or false pretenses was not present. Thus, her guilt was not established with satisfactory proof. Appellant asserts that good faith on her part was a valid defense to rebut the prima facie presumption of deceit when she issued the checks that subsequently bounced. Furthermore, out of the 14 checks cited in the decision of the trial court, only one check was deposited within 90 days from due date. This was check no. 033550 dated November 5, 1983. The rest of the checks were deposited only on April 10, 1984 or more than 90 days from the date of the last check.[18] Appellant also denies she received any notice of dishonor of the checks, contrary to the findings of the trial court. She was not even aware that cases had already been filed against her for violation of BP 22. Since there was allegedly no proof of notice[19] of the dishonor of the checks, appellant claims that she cannot be convicted of violation of BP 22. On the other hand, the Solicitor General contends that appellant was criminally liable for issuing worthless checks. Complainant Chua accepted the postdated checks as payment because of appellant‘s good credit standing. She was confident that appellant‘s checks were good checks. Thus, no assurances from appellant that the checks were sufficiently funded were needed for Chua to part with her goods. And when the checks later bounced, appellant betrayed the confidence reposed in her by Chua. The Solicitor General also argues that there was a simultaneous exchange of textile materials and checks between complainant and appellant. Complainant Chua would not have parted with her telas had she known that appellant‘s checks would not clear. Appellant obtained something in exchange for her worthless checks. When she issued them, she knew she had no funds to back up those checks because her account had already been closed. Yet, she did not inform Chua that the checks could not be cashed upon maturity. She thus deceived Chua into parting with her goods and the deceit employed constituted estafa. We grant the appeal. DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885,[20] the elements of estafa are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; (3) damage to the payee thereof. Deceit and damage are essential elements of the offense and must be established by satisfactory proof to warrant conviction. [21] Thus, the drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount of the check. Otherwise a prima facie presumption of deceit arises. The prosecution failed to prove deceit in this case. The prima facie presumption of deceit was successfully rebutted by appellant‘s evidence of good faith, a defense in estafa by postdating a check.[22] Good faith may be demonstrated, for instance, by a debtor‘s offer to arrange a payment scheme with his creditor. In this case, the debtor not only made arrangements for payment; as complainant herself categorically stated, the debtor-appellant fully paid the entire amount of the dishonored checks. It must be noted that our Revised Penal Code was enacted to penalize unlawful acts accompanied by evil intent denominated as crimes mala in se. The principal consideration is the existence of malicious intent. There is a concurrence of freedom, intelligence and intent which together make up the ―criminal mind‖ behind the ―criminal act.‖ Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person performing the act complained of is innocent. As we held in Tabuena vs. Sandiganbayan:[23] The rule was reiterated in People v. Pacana, although this case involved falsification of public documents and estafa: ―Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.‖ American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose. The accused may thus prove that he acted in good faith and that he had no intention to convert the money or goods for his personal benefit.[24] We are convinced that appellant was able to prove the absence of criminal intent in her transactions with Chua. Had her intention been tainted with malice and deceit, appellant would not have exerted extraordinary effort to pay the complainant, given her own business and financial reverses.

LACK OF NOTICE OF DISHONOR

We also note that the prosecution presented virtually no evidence to show that the indispensable notice of dishonor was sent to and received by appellant. Excerpts from the following testimony of complainant are significant: ATTY. ANGELES: Q

Now, Mrs. Witness, when these checks from Exhibits ‗A‘ to ‗V‘ have bounced, what steps, did you do?

A

I consulted my lawyer and she wrote a Demand Letter.

COURT: Q

What is the name of that lawyer?

A

Atty. Virginia Nabora.

ATTY. ANGELES:

Q

Now, you mentioned a Demand Letter sent by Atty. Virginia Nabor, I am showing to you this Demand Letter dated March 16, 1988, will you kindly examine the same if this is the same Demand Letter you mentioned a while ago?

A

Yes, sir.

Q

Now, on this second page of this Demand Letter there is a signature above the printed name Virginia Guevarra Nabor, do you know the signature, Mrs. Witness?

A

Yes, that is the signature of my lawyer.

ATTY. ANGELES: May we request that this Demand Letter dated March 16, 1988 consisting of two (2) pages, Your Honor, be marked as Exhibit ‗W‘ and that the signature on the second page of this letter of Virginia Guevarra Nabor be encircled and be marked as Exhibit ‗W-1‘ and that the attached Registry Receipt, Your Honor, be marked as Exhibit ‗W-2‘. COURT: Mark them. ATTY. ANGELES: Q

Now, Mrs. Witness, why do you know that this is the signature of Virginia Guevarra Nabor?

A

After preparing that I saw her sign the letter.

Q

Now, after sending this Demand Letter, do you know If the accused herein made payments or replaced the checks that were issued to you?

COURT: Q

Of course, you assumed that the accused received that letter, that is his basis on the premise that the accused received that letter?

ATTY. ANGELES: A

Yes, Your Honor.

COURT: Q

What proof is there to show that accused received the letter because your question is premises (sic) on the assumption that the accused received the letter?

ATTY. ANGELES: Q

Now, do you know Mrs. Witness if the accused received the letter?

A

There is a registry receipt.

COURT: Q

Now, later on after sending that letter, did you have communication with the accused?

A

I kept on calling her but I was not able to get in touch with her.

Q But do you know if that letter of your lawyer was received by the accused? A

I was not informed by my lawyer but I presumed that the same was already received by the accused.

ATTY. ANGELES: Q

Now, aside from sending this Demand Letter, do you know what your lawyer did?

A

We filed a case with the Fiscal‘s.[25]

Aside from the above testimony, no other reference to the demand letter was made by the prosecution. The prosecution claimed that the demand letter was sent by registered mail. To prove this, it presented a copy of the demand letter as well as the registry return receipt bearing a signature which was, however, not even authenticated or identified. A registry receipt alone is insufficient as proof of mailing.[26] ―Receipts for registered letters and return receipts do not prove themselves; they must be properly authenticated in order to serve as proof of receipt of the letters.‖ [27] It is clear from the foregoing that complainant merely presumed that appellant received the demand letter prepared and sent by her lawyer. She was not certain if appellant indeed received the notice of dishonor of the checks. All she knew was that a demand letter was sent by her lawyer to the appellant. In fact, right after complainant made that presumption, her lawyer filed the criminal cases against appellant at the Fiscal‘s office [28] without any confirmation that the demand letter supposedly sent through registered mail was actually received by appellant. With the evident lack of notice of dishonor of the checks, appellant cannot be held guilty of violation of BP 22. The lack of such notice violated appellant‘s right to procedural due process. ―It is a general rule that when service of notice is an issue, the person alleging that the notice was served must prove the fact of service.‖[29] The burden of proving receipt of notice rests upon the party asserting it and the quantum of proof required for conviction in this criminal case is proof beyond reasonable doubt. When, during the trial, appellant denied having received the demand letter, it became incumbent upon the prosecution to prove that the demand letter was indeed sent through registered mail and that the same was received by appellant. But it did not. Obviously, it relied merely on the weakness of the evidence of the defense.

This Court therefore cannot, with moral certainty, convict appellant of violation of BP 22. The evident failure of the prosecution to establish that she was given the requisite notice of dishonor justifies her acquittal.[30] As held in Lao vs. Court of Appeals:[31] ―It has been observed that the State, under this statute, actually offers the violator ‗a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated.‘ This was also compared ‗to certain laws allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability.‘ In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a ‗complete defense.‘ The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand – and the basic postulates of fairness require -- that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. 22. Stated otherwise, responsibility under BP 22 was personal to appellant; hence, personal knowledge of the notice of dishonor was necessary. Consequently, while there may have been constructive notice to appellant regarding the insufficiency of her funds in the bank, it was not enough to satisfy the requirements of procedural due process. Finally, it is worth mentioning that notice of dishonor is required under both par. 2(d) Art. 315 of the RPC and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount needed to cover his check within three days from receipt of notice of dishonor, BP 22, on the other hand, requires the maker or drawer to pay the amount of the check withinfive days from receipt of notice of dishonor. Under both laws, notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist. WHEREFORE, the decision of the trial court is hereby REVERSED and SET ASIDE. Appellant Cora Abella Ojeda is ACQUITTED in Criminal Case No. 88-66228 for estafa and in Criminal Case Nos. 88-66230, 88-66232, 88-66235 to 88-66240, 88-66242, 88-66243, 88-66245 to 88-66248 for violation of BP 22. SO ORDERED. CASE DIGEST: FACTS: This is a case for estafa and violation of BP 22. Cora Ojeda used to buy fabrics from Ruby Chua. All in all Ojeda 228,306 pesos using 22 postdated checks. When the checks were presented for payment, they were dishonored due to ―account closed‖. Criminal charges were lodged against Ojeda. In defense Ojeda claims good faith, absence of deceit, lack of notice of dishonor and full payment of the amount of the checks. Also, Ojeda claims she advised Chua not to cash the checks because they were not yet sufficiently funded. Finally, she claims she made partial payments worth 50,000 pesos in the form of finished garments. The trial court convicted her but only for 14 counts out of 22 bouncing checks issued. This was because some checks were not covered by the indictment and others were not signed by her but by her husband. ISSUE: whether or not the defense of Ojeda for absence of deceit is tenable. – YES. HELD: Under Art. 315 of the RPC the following are the requisites for estafa: first, a check is postdated or issued in payment of an obligation contracted at the time it is issued; second, lack or insufficiency of funds to cover the check; third, damage to the payee thereof. Deceit and damage are essential elements of the offense and must be established by satisfactory proof to warrant conviction. Deceit was not proven by the prosecution. In fact, Ojeda not only made arrangements for the payment of the debts but in fact paid (because during the pendency of the appeal an affidavit of desistance was introduced by Ojeda). This is a sign of good faith and absence of malice – an essential element of estafa and crimes under the RPC which are mala in se.

Minor ruling: there was also lack of notice of dishonor. Prosecution merely presented a copy of the demand letter and the registry receipt. However, the registry receipt does not prove itself. It needs to be authenticated and identified. In this case, it was not.

PEOPLE VS QUIJADA EN BANC

[G.R. Nos. 115008-09. July 24, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANIEL QUIJADA Y CIRCULADO, accused-appellant. DECISION DAVIDE, JR., J.: Accused-appellant Daniel Quijada appeals from the decision of 30 September 1993 of Branch 1 of the Regional Trial Court (RTC) of Bohol convicting him of the two offenses separately charged in two informations, viz., murder under Article 248 of the Revised

Penal Code and illegal possession of firearm in its aggravated form under P.D. No. 1866, and imposing upon him the penalty of reclusion perpetua for the first crime and an indeterminate penalty ranging from seventeen years, four months, and one day, as minimum, to twenty years and one day, as maximum, for the second crime.[1] The appeal was originally assigned to the Third Division of the Court but was later referred to the Court en banc in view of the problematical issue of whether to sustain the trial court's judgment in conformity with the doctrine laid down in People vs. Tac[2] an, People vs. Tiozon,[3] People vs. Caling,[4] People vs. Jumamoy,[5] People vs. Deunida,[6] People vs. Tiongco,[7]People vs. Fernandez,[8] and People vs. Somooc,[9] o r to modify the judgment and convict the appellant only of illegal possession of firearm in its aggravated form pursuant to People vs. Barros,[10] which this Court (Second Division) decided on 27 June 1995. The informations read as follows: CRIMINAL CASE NO. 8178 That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and without any justifiable motive, with treachery and abuse of superior strength, the accused being then armed with a .38 cal. revolver, while the victim was unarmed, suddenly attacked the victim without giving the latter the opportunity to defend himself, and with evident premeditation, the accused having harbored a grudge against the victim a week prior to the incident of murder, did then and there willfully, unlawfully and feloniously attack, assault and shoot Diosdado Iroy y Nesnea with the use of the said firearm, hitting the latter on his head and causing serious injuries which resulted to his death; to the damage and prejudice of the heirs of the deceased. Acts committed contrary to the provision of Art. 248 of the Revised Penal Code, with aggravating circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate the commission of the crime.[11] CRIMINAL CASE NO. 8179 That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously keep, carry and have in his possession, custody and control a firearm (hand gun) with ammunition, without first obtaining the necessary permit or license to possess the said firearm from competent authorities which firearm was carried by the said accused outside of his residence and was used by him in committing the crime of Murder with Diosdado Iroy y Nesnea as the victim; to the damage and prejudice of the Republic of the Philippines. Acts committed contrary to the provisions of P.D. No. 1866.[12] Having arisen from the same incident, the cases were consolidated, and joint hearings were had. The witnesses presented by the prosecution were SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol), SPO Gondalino Inte, Dr. Greg Julius Sodusta, Rosita Iroy, and Teodula Matalinis. The defense presented as witnesses Alfred Aranzado, Edwin Nistal, Julius Bonao, Saturnino Maglupay, and the appellant himself. The evidence for the prosecution is summarized by the Office of the Solicitor General in the Brief for the Appellee as follows: On 25 December 1992, a benefit dance was held at the Basketball Court of Barangay Tinago, Dauis, Bohol. On this occasion, a fist fight occurred between Diosdado Iroy and appellant Daniel Quijada as the latter was constantly annoying and pestering the former's sister. Rosita Iroy (TSN, Crim. Cases 8178 & 8179, June 8, 1993, pp. 32-35; August 5, 1993, pp. 14-15). In the evening of 30 December 1992, another benefit dance/disco was held in the same place. This benefit dance was attended bv Rosita Iroy, Ariel Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and Diosdado Iroy. While Rosita Iroy and others were enjoying themselves inside the dancing area, Diosdado Iroy, Eugene Nesnea and Largo Iroy, who were then sitting at the plaza (the area where they positioned themselves was duly lighted and was approximately four meters from the dancing hall), decided to just watch the activities in the dance hall directly from the plaza. After dancing, Rosita Iroy decided to leave and went outside the gate of the dance area. Subsequently, or around 11:30 of the same night, while facing the direction of Diosdado Iroy, Rosita lroy saw appellant surreptitiously approach her brother Diosdado Iroy from behind. Suddenly, appellant fired his revolver at Diosdado Iroy, hitting the latter at the back portion of the head. This caused Rosita Iroy to spontaneously shout that appellant shot her brother; while appellant, after shooting Diosdado Iroy, ran towards the cornfield. Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the hospital but the injury sustained was fatal. In the meantime, Rosita Iroy went home and relayed to her parents the unfortunate incident (TSN, Crim Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of the preceding paragraphs). At around midnight, the incident was reported to then Acting Chief of Police Felipe Nigparanon by Mrs. Alejandra Iroy and her daughter Teodula Matalinis. The police officer made entries in the police blotter regarding the shooting and correspondingly, ordered his men to pick up the appellant. But they were unable to locate appellant on that occasion (TSN, Crim. Case Nos. 8178 & 8179, June 9, 1993, pp. 2-6). In the afternoon of 31 December 1992, appellant, together with his father Teogenes Quijada went to the police station at Dauis, Bohol. There and then, appellant was pinpointed by Elenito Nistal and Rosita Iroy as the person who shot Diosdado Iroy. These facts were entered in the police blotter as Entry No. 1151 (TSN, Crim. Case Nos. 8178 & 8179, ibid. p. 14, June 14, 1993, pp. 4-6).[13] The slug was embedded at the midbrain.[14] Diosdado Iroy died of Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to massive intracranial hemorrhage, secondary to gunshot wound, 1 cm. left occipital area, transacting cerebellum up to midbrain. [15] The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per certifications issued on 26 April 1993, the appellant was not a duly licensed firearm holder as verified from a consolidated list of licensed firearm holders in the province[16] and was not authorized to carry a firearm outside his residence.[17] The appellant interposed the defense of alibi, which the trial court rejected because he was positively identified by prosecution witness Rosita Iroy. It summarized his testimony in this wise:

Daniel Quijada y Circulado, the accused in the instant cases, declared that in the afternoon of December 30, 1992 he was in their house At 6:00 o'clock in the afternoon he went to Tagbilaran City together with Julius Bonao in a tricycle No. 250 to solicit passengers. They transported passengers until 10:30 o'clock in the evening. They then proceeded to the Tagbilaran wharf waiting for the passenger boat Trans Asia Taiwan. Before the arrival of Trans Asia Taiwan they had a talk with Saturnino Maglopay. They were able to pick up two passengers for Graham Avenue near La Roca Hotel. They then returned to the Tagbilaran wharf for the arrival of MV Cebu City that docked at 12:10 past midnight. They had a talk with Saturnino Maglopay who was waiting for his aunties scheduled to arrive aboard MV Cebu City. They were not able to pick up passengers which, as a consequence, they went home. They had on their way home passengers for the Agora Public Market. They arrived at the house of Julian Bonao at Bil-isan, Panglao, Bohol at 3:00 o'clock in the morning of December 31, 1992 where he passed the night. He went home to Mariveles, Dauis, Bohol at 9:00 o'clock in the morning. [18] The trial court gave full faith and credit to the version of the prosecution and found the appellant guilty beyond reasonable doubt of the crimes charged and sentenced him accordingly. It appreciated the presence of the qualifying circumstance of treachery considering that the appellant shot the victim at the back of the head while the latter was watching the dance. The dispositive portion of the decision dated 30 September 1993 reads as follows: PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the accused Daniel Quijada guilty of the crime of murder punished under Article 248 of the Revised Penal Code and hereby sentences him to suffer an imprisonment of Reclusion Perpetua, with the accessories of the law and to pay the cost. In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the crime of Qualified Illegal Possession of Firearm and Ammunition punished under Sec. 1 of R.A. No. 1866 as amended, and hereby sentences him to suffer an indeterminate sentence from Seventeen (17) years Four (4) months and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum, with the accessories of the law and to pay the cost. The slug or bullet which was extracted from the brain at the back portion of the head of the victim Diosdado Iroy is hereby ordered forfeited in favor of the government. It appearing that the accused Daniel Quijada has undergone preventive imprisonment he is entitled to the full time he has undergone preventive imprisonment to be deducted from the term of sentence if he has executed a waiver otherwise he will only be entitled to 4/5 of the time he has undergone preventive imprisonment to be deducted from his term of sentence if he has not executed a waiver. [19] On 29 October 1993, after discovering that it had inadvertently omitted in the decision an award of civil indemnity and other damages in Criminal Case No. 8178, the trial court issued an order directing the appellant to pay the parents of the victim the amount of P50,000.00 as indemnity for the death of their son and P10,000.00 for funeral expenses.[20] The order was to form an integral part of the decision. The decision was promulgated on 29 October 1993.[21] The appellant forthwith interposed the present appeal, and in his Brief, he contends that the trial court erred I . . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESSES ROSITA IROY AND FELIPE NIGPARANON. II . . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES EDWIN NISTAL AND ALFRED ARANZADO, AND IN DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-APPELLANT PARTICULARLY THE RELATIVE POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED ARANZADO. III . . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY AND SP04 FELIPE NIGPARANON HAD MOTIVES IN FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT.[22] The appellant then submits that the issue in this case boils down to the identity of the killer of Diosdado Iroy. To support his stand that the killer was not identified, he attacks the credibility of prosecution witnesses Rosita Iroy and SP04 Felipe Nigparanon. He claims that the former had a motive "to put him in a bad light" and calls our attention to her direct testimony that her brother Diosdado, the victim, boxed him on the night of 25 December 1992 because he allegedly "bothered her." He further asserts that Rosita could not have seen the person who shot Diosdado considering their respective positions, particularly Rosita who, according to defense witnesses Nistal and Aranzado, was still inside the dancing area and ran towards the crime scene only after Diosdado was shot. And, the appellant considers it as suppression of evidence when the prosecution did not present as witnesses Diosdado's companions who were allegedly seated with Diosdado when he was shot. As to SPO4 Nigparanon, the appellant intimates improper motives in that the said witness is a neighbor of the Iroys, and when he testified, a case for arbitrary detention had already been filed against him by the appellant. The appellant further claims of alleged omissions and unexplained entries in the police blotter. Finally, the appellant wants us to favorably consider his defense of alibi which, according to him, gained strength because of the lack of evidence on the identity of the killer. Furthermore, he stresses that his conduct in voluntarily going to the police station after having been informed that he, among many others, was summoned by the police is hardly the actuation of the perpetrator of the killing of Diosdado Iroy -- specially so if Rosita Iroy's claim is to be believed that moments after the shooting she shouted that Daniel Quijada shot Diosdado Iroy. In its Appellee's Brief, the People refutes every argument raised by the appellant and recommends that we affirm in toto the challenged decision. After a careful scrutiny of the records and evaluation of the evidence adduced by the parties, we find this appeal to be absolutely without merit. The imputation of ill-motive on the part of Rosita Iroy and the basis therefor hardly persuade. The appellant was the one who was boxed by and lost to Diosdado Iroy in their fight on the night of 25 December 1992. It is then logical and consistent with human experience that it would be the appellant who would have

forthwith entertained a grudge, if not hatred, against Diosdado. No convincing evidence was shown that Rosita had any reason to falsely implicate the appellant in the death of her brother Diosdado. The claim that Rosita could not have seen who shot her brother Diosdado because, as testified to by defense witnesses Nistal and Aranzado, she was inside the dancing hall and rushed to her brother only after the latter was shot is equally baseless. The following testimony of Rosita shows beyond cavil that she saw the assailant: Q

You said that you were initially dancing inside the dancing place and you went out, about what time did you get out?

A

11:00 o'clock.

Q

And you were standing about two (2) meters from Diosdado Iroy until 11:30 when the incident happened?

A

Yes, I was standing.

Q

And where did you face, you were facing Diosdado Iroy or the dancing area?

A

I was intending to go near my brother. I was approaching and getting near going to my brother Diosdado Iroy and while in the process I saw Daniel Quijada shot my brother Diosdado Iroy.[23] xxx

xxx

xxx

Q

And in your estimate, how far was your brother Diosdado Iroy while he was sitting at the plaza to the dancing place?

A

More or less four (4) meters distance.

COURT: From the dancing hall? A

Yes, your honor.

Q

And in your observation, was the place where Diosdado Iroy was sitting lighted or illuminated?

A

Yes, sir.

Q

What kind of light illuminated the place?

A

I do not know what kind of light but it was lighted.

Q

Was it an electric light?

A

It is electric light coming from a bulb.

Q

Where is that electric bulb that illuminated the place located?

A

It was placed at the gate of the dancing place and the light from the house.

Q

You said gate of the dancing place, you mean the dancing place was enclosed at that time and there was a gate, an opening?

A

Yes, sir.

Q

What material was used to enclose the dancing place?

A

Bamboo.

Q

And how far was the bulb which was placed near the entrance of the dancing place to the place where Diosdado Iroy was sitting?

A

Five (5) meters.

Q

You mentioned also that there was a light coming from the house, now whose house was that?

A

The house of spouses Fe and Berto, I do not know the family name.

Q

Was the light coming from the house of spouses Fe and Berto an electric light?

A

Yes sir.

Q

And in your estimate, how far was the source of light of the house of Fe and Berto to the place where Diosdado Iroy was sitting?

A

About six (6) meters distance.[24] xxx

xxx

Q

What was the color of the electric bulb in the gate of the dancing place?

A

The white bulb.[25]

xxx

The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:

The factual findings of the Court in the instant case is anchored principally in ". . . observing the attitude and deportment of witnesses while listening to them speak (People vs. Magaluna, 205, SCRA 266). thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the declarations of Nistal and Aranzado failed to convince the trial court that they were telling the truth. Settled is the rule that the factual findings of the trial court, especially on the credibility of witnesses, are accorded great weight and respect. For, the trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; [26] or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. [27] The appellant has miserably failed to convince us that we must depart from this rule. Neither are we persuaded by the claimed suppression of evidence occasioned by the non-presentation as prosecution witnesses any of the companions of Diosdado who were seated with him when he was shot. In the first place, the said companions could not have seen from their back the person who suddenly shot Diosdado. In the second place, the testimony of the companions would, at the most, only corroborate that of Rosita Iroy. Besides, there is no suggestion at all that the said companions were not available to the appellant. It is settled that the presumption in Section 3 (e), Rule 131 of the Rules of Court that evidence willfully suppressed would be adverse if produced does not apply when the testimony of the witness is merely corroborative or where the witness is available to the accused.[28] The alleged improper motive on the part of SP04 Nigparanon simply because he is a neighbor of the Iroy; remains purely speculative, as no evidence was offered to establish that such a relationship affected SP04 Nigparanon's objectivity. As a police officer, he enjoyed in his favor the presumption of regularity in the performance of his official duty.[29] As to the alleged omissions and unexplained entries in the police blotter, the same were sufficiently clarified by SP04 Nigparanon. The defense of alibi interposed by the appellant deserves scant consideration. He was positively identified by a credible witness. It is a fundamental judicial dictum that the defense of alibicannot prevail over the positive identification of the accused. [30] Besides, for that defense to prosper it is not enough to prove that the accused was somewhere else when the crime was committed; he must also demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission.[31] As testified to by defense witness Julian Bonao, the Tagbilaran wharf, where the appellant said he was, is only about eight to nine kilometers away from the crime scene and it would take only about thirty minutes to traverse the distance with the use of a tricycle.[32] It was, therefore, not physically impossible for the appellant to have been at the scene of the crime at the time of its commission. Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have voluntarily proceeded to the police station. This argument is plain sophistry. The law does not find unusual the voluntary surrender of offenders; it even considers such act as a mitigating circumstance. [33] Moreover, non-flight is not conclusive proof of innocence.[34] The evidence for the prosecution further established with moral certainty that the appellant had no license to possess or carry a firearm. The firearm then that he used in shooting Diosdado Iroy was unlicensed. He, therefore, committed the crime of aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866, which reads: SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments Used or Intended to be Used in the Manufacture of Fi rearms or Ammunition -- The penalty of reclusiontemporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. In light of the doctrine enunciated in People vs. Tac-an,[35] and reiterated in People vs. Tiozon,[36] People vs. Caling,[37] People vs. Jumamoy,[38] People vs. Deunida,[39] People vs.Tiongco,[40] People vs. Fernandez,[41] and People vs. Somooc,[42 ] that one who kills another with the use of an unlicensed firearm commits two separate offenses of (1) either homicide or murder under the Revised Penal Code, and (2) aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866, we sustain the decision of the trial court finding the appellant guilty of two separate offenses of murder in Criminal Case No. 8178 and of aggravated illegal possession of firearm in Criminal Case No. 8179. Although Tac-an and Tiozon relate more to the issue of whether there is a violation of the constitutional proscription against double jeopardy if an accused is prosecuted for homicide or murder and for aggravated illegal possession of firearm, they at the same time laid down the rule that these are separate offenses, with the first punished under the Revised Penal Code and the second under a special law; hence, the constitutional bar against double jeopardy will not apply. We observed in Tac-an: It is elementary that the constitutional right against double jeopardy protects one against a second or later prosecution for the same offense, and that when the subsequent information charges another and different offense, although arising from the same act or set of acts, there is no prohibited double jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case No. 4007 is that of unlawful possession of an unlicensed firearm penalized under a special statute, while the offense charged in Criminal Case No. 4012 was that of murder punished under the Revised Penal Code. It would appear self-evident that these two (2) offenses in themselves are quite different one from the other, such that in principle, the subsequent filing of Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited second jeopardy. And we stressed that the use of the unlicensed firearm cannot serve to increase the penalty for homicide or murder; however, the killing of a person with the use of an unlicensed firearm, by express provision of P.D. No. 1866, shall increase the penalty for illegal possession of firearm. In Tiozon, we stated: It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1 because it is a circumstance which increases the penalty. It does not, however, follow that the homicide or murder is absorbed in the offense; otherwise, an anomalous absurdity results whereby a more serious crime defined and penalized in the Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum. The rationale for the qualification, as implied from the exordium of the decree, is to effectively deter violations of the laws on firearms and to stop the "upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, x x x." In fine then, the killing of a person with the use of an unlicensed firearm may give rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal

Code. The accused cannot plead one as a bar to the other; or, stated otherwise, the rule against double jeopardy cannot be invoked because the first is punished by a special law while the second, homicide or murder, is punished by the Revised Penal Code. In People vs. Doriguez, [24 SCRA 163, 171], We held: It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or identical offenses. A simple act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased elsewise, where two different laws (or articles of the same code) defines two crimes, prior jeopardy as to one of them is not obstacle to a prosecution of the other, although both offenses arise from the same fact, if each crime involves some important act which is not an essential element of the other. In People vs. Bacolod [89 Phil. 621], from the act of firing a shot from a sub-machine gun which caused public panic among the people present and physical injuries to one, informations of physical injuries through reckless imprudence and for serious public disturbance were filed. Accused pleaded guilty and was convicted in the first and he sought to dismiss the second on the ground of double jeopardy. We ruled: The protection against double jeopardy is only for the same offense. A simple act may be an offense against two different provisions of law and if one provision requires proof of an additional fact which the other does not, an acquittal or conviction under one does not bar prosecution under the other. Since the informations were for separate offense[s] -- the first against a person and the second against public peace and order -- one cannot be pleaded as a bar to the other under the rule on double jeopardy. In Caling, we explicitly opined that a person charged with aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866 can also be separately charged with and convicted of homicide or murder under the Revised Penal Code and punished accordingly. Thus: It seems that the Court a quo did indeed err in believing that there is such a thing as "the special complex crime of Illegal Possession of Unlicensed Firearm Used in Homicide as provided for and defined under the 2nd paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling guilty thereof. The legal provision invoked, "Sec. 1 of P.D. 1866, as amended," reads as follows: "SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms [or] Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty ofreclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed." What is penalized in the first paragraph, insofar as material to the present case is the sole, simple act of a person who shall, among others, "unlawfully possess any firearm x x x (or) ammunition x x x." Obviously, possession of any firearm is unlawful if the necessary permit and/or license therefor is not first obtained. To that act is attached the penalty of reclusion temporal, maximum, to reclusion perpetua. Now, if "with the use of (such) an unlicensed firearm, a "homicide or murder is committed," the crime is aggravated and is more heavily punished, with the capital punishment. The gravamen of the offense in its simplest form is, basically, the fact of possession of a firearm without license. The crime may be denominated simple illegal posses sion, to distinguish it from its aggravated form. It isAggravated if the unlicensed firearm is used in the commission of a homicide or murder under the Revised Penal Code. But the homicide or murder is not absorbed in the crime of possession of an unlicensed firearm; neitheris the latter absorbed in the former. There are two distin ct crimes that are here spoken of. One is unlawful possession of a firearm, which may be either simple or aggravated, defined and punished respectively by the firstan d second paragraphs of Section 1 of PD 1866. The other is homicide or murder, committed with the use of an unlicensed firearm. The mere possession of a firearm w ithout legal authority consummates the crime underP.D. 1866, and the liability for illegal possession is made heavier by the firearm's use in a killing. The killing, whet her homicide or murder, is obviously distinct from the act of possession, and is separately punished anddefined under the Revised Penal Code. (emphasis supplied) In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills another with an unlicensed firearm can be prosecuted and punished for the two separate offenses of violation of the second paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under the Revised Penal Code. Thus: Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866 penalizes, inter alia, the unlawful possession of firearms or ammunition with reclusion temporal in its maximum period to reclusion perpetua. However, under the second paragraph thereof, the penalty is increased to death if homicide or murder is committed with the use of an unlicensed firearm. It may thus be loosely said that homicide or murder qualifies theoffense because both are circumstances which increase the penalty. It does not, however, fol low that the homicide or murder is absorbed in the offense. If these were to be so, an anomalous absurdity would result wherebya more serious crime defined and pen alized under the Revised Penal Code will be absorbed by a statutory offense, one which is merely malum prohibitum. Hence, the killing of a person with the use of an unlicensed firearmmay give rise to separate prosecutions for (a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article 248 (Murder) or Arti cle 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the other; stated otherwise, the rule against double jeopardy cannot be invoked as the first is punished by a special law while the second - Murder or Homicide - is punished by the Revised Penal Code. [citing People vs. Tiozon, 198 SCRA 368, 379 (1991); People vs. Doriguez, 24 SCRA 163 (1968)]. Considering, however, that the imposition of the death penalty is prohibited by the Constitution, the proper imposable penalty would be the penalty next lower in degree, or reclusion perpetua. (emphasis supplied) In Deunida, in discussing the propriety of the Government's action in withdrawing an information for murder and pursuing only the information for "Qualified Illegal Possession of Firearm," this Court categorically declared:

At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing the information for murder, the offense defined in the second paragraph of Section 1 of P.D. No. 1866 does not absorb the crime of homicide or murder under the Revised Penal Code and, therefore, does not bar the simultaneous or subsequent prosecution of the latter crime. The 1982 decision in Lazaro vs. People, involving the violation of P.D. No. 9, which the investigating prosecutor invokes to justify the withdrawal, is no longer controlling in view of our decisions in People vs. Tac-an, People vs. Tiozon, and People vs. Caling. In Somooc, we once more ruled: The offense charged by the Information is clear enough from the terms of that document, although both the Information and the decision of the trial court used the term "Illegal Possession of Firearm with Homicide," a phrase which has sometimes been supposed to connote a "complex crime‖ as used in the Revised Penal Code. Such nomenclature is, however, as we have ruled in People vs. Caling, a misnomer since there is no complex crime of illegal possession of firearm with homicide. The gravamen of the offense penalized in P.D. No. 1866 is the fact of possession of a firearm without a license or authority for such possession. This offense is aggravated and the imposable penalty upgraded if the unlicensed firearm is shown to have been used in the commission of homicide or murder, offenses penalized under the Revised Penal Code. The killing of a human being, whether characterized as homicide or murder, is patently distinct from the act of possession of an unlicensed firearm and is separately punished under the provisions of the Revised Penal Code. The foregoing doctrine suffered a setback when in our decision of 27 June 1995 in People vs. Barros,[43] we set aside that portion of the appealed decision convicting the appellant of the offense of murder and affirmed that portion convicting him of illegal possession of firearm in its aggravated form. We therein made the following statement: [A]ppellant may not in the premises be convicted of two separate offenses [of illegal possession of firearm in its aggravated form and of murder], but only that of illegal possession of firearm in its aggravated form, in light of the legal principles and propositions set forth in the separate opinion of Mr. Justice Florenz D. Regalado, to which the Members of the Division, the ponente included, subscribe. The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to therein read as follows: This premise accordingly brings up the second query as to whether or not the crime should properly be the aggravated illegal possession of an unlicensed firearm through the use of which a homicide or murder is committed. It is submitted that an accused so situated should be liable only for the graver offense of aggravated illegal possession of the firearm punished by death under the second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point that the writer dissents from the holding which would impose a separate penalty for the homicide in addition to that for the illegal possession of the firearm used to commit the former. If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has correctly held that to be the simple possession punished with reclusion temporal in its maximum period to reclusionperpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed firearm is used to commit homicide or murder, then either of these felonies will convert the erstwhile simple illegal possession into the graver offense of aggravated illegal possession. In other words, the homicide or murder constitutes the essential element for integrating into existence the capital offense of the aggravated form of illegal possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder as integral elements of and to create the said capital offense, and then treat the former all over again as independent offenses to be separately punished further, with penalties immediately following the death penalty to boot. The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature of the so-called, ―special complex crimes," which should more appropriately be called composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the same legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a single act giving rise to two or more grave or less grave felonies nor do they involve an offense being a necessary means to commit another. However, just like the regular complex crimes and the present case of aggravated illegal possession of firearms, only a single penalty is imposed for each of such composite crimes although composed of two or more offenses. On the other hand, even if two felonies would otherwise have been covered by the conceptual definition of a complex crime under Article 48, but the Code imposes a single definite penalty therefor, it cannot also be punished as a complex crime, much less as separate offense, but with only the single penalty prescribed by law. Thus, even where a single act results in two less grave felonies of serious physical injuries and serious slander by deed, the offense will not be punished as a delito compuesto under Article 48 but as less serious physical injuries with ignominy under the second paragraph of Article 265. The serious slander by deed is integrated into and produces a graver offense, and the former is no longer separately punished. What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on complex and composite crimes, is that when an offense becomes a component of another, the resultant crime being correspondingly punished as thus aggravated by the integration of the other, the former is not to be further separately punished as the majority would want to do with the homicide involved in the case at bar. With the foregoing answers to the second question, the third inquiry is more of a question of classification for purposes of the other provisions of the Code. The theory in Tac-an that the principal offense is the aggravated form of illegal possession of firearm and the killing shall merely be included in the particulars or, better still, as an element of the principal offense, may be conceded. After all, the plurality of crimes here is actually source from the very provisions of Presidential Decree No. 1866 which sought to "consolidate, codify and integrate" the various laws and presidential decrees to harmonize their provision" which ―must be updated and revised in order to more effectively deter violators‖ of said laws. This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping Act of 1972, wherein the principal crime to be charged is still carnapping, although the penalty therefore is increased when the owner, driver or occupant of the carnapped vehicle is killed. The same situation, with escalating punitive provisions when attended by a killing, are found in the Anti-Piracy and Anti-Highway Robbery Law of 1974 and the Anti-Cattle Rustling Law of 1974, wherein the principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of destructive arson, the principal offense when, inter alia, death results as a consequence of the commission of any of the acts punished under said article of the Code.

In the present case, the academic value of specifying whether it is a case of illegal possession of firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal possession and use of an unlicensed firearm, would lie in the possible application of the provision on recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty for aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case the provision on recidivism would not apply. If, however, the illegal possession is not established but either homicide or murder is proved, then the matter of recidivism may have some significance in the sense that, for purposes thereof, the accused was convicted of a crime against persons and he becomes a recidivist upon conviction of another crime under the same title of the Code. Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when the unlawful killing and the illegal possession are charged in separate informations, from what has been said the appropriate course of action would be to consolidate the cases and render a joint decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such possession and the unlawful taking of life shall have been proved, or for only the proven offense which may be either simple illegal possession, homicide or murder per se. The same procedural rule and substantive disposition should be adopted if one information for each offense was drawn up and these informations were individually assigned to different courts or branches of the same court. Indeed, the practice of charging the offense of illegal possession separately from the homicide or murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be known to the police or prosecutorial agencies, the only probable problem being the determination and obtention of evidence to show that the firearm is unlicensed. Now, if a separate information for homicide or murder is filed without alleging therein that the same was committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a license therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even if proved in that case, would not affect the accused either since it is not an aggravating or qualifying circumstance. Conversely, if the information is only for illegal possession, with the prosecution intending to file thereafter the charge for homicide or murder but the same is inexplicably delayed or is not consolidated with the information for illegal possession, then any conviction that may result from the former would only be for simple illegal possession. If, on the other hand, the separate and subsequent prosecution for homicide or murder prospers, the objective of Presidential Decree No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only be for the unlawful killing and further subject to such modifying circumstances as may be proved. In any event, the foregoing contingencies would run counter to the proposition that the real offense committed by the accused, and for which sole offense he should be punished, is the aggravated form of illegal possession of a firearm. Further, it is the writer's position that the possible problems projected herein may be minimized or obviated if both offenses involved are charged in only one information or that the trial thereof, if separately charged, be invariably consolidated for joint decision. Conjointly, this is the course necessarily indicated since only a single composite crime is actually involved and it is palpable error to deal therewith and dispose thereof by segregated parts in piecemeal fashion. If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178 must have to be set aside. He should only suffer the penalty for the aggravated illegal possession of firearm in Criminal Case No. 8179. The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting doctrines applicable to prosecutions for murder or homicide and for aggravated illegal possession of firearm in instances where an unlicensed firearm is used in the killing of a person. After a lengthy deliberation thereon, the Court en banc arrived at the conclusion that the rule laid down in Tac-an, reiterated in Tiozon, Caling, Jumamoy, Deunida, Tiongco, Fernandez, and Somooc is the better rule, for it applies the laws concerned according to their letter and spirit, thereby steering this Court away from a dangerous course which could have irretrievably led it to an inexcusable breach of the doctrine of separation of powers through Judicial legislation. That rule upholds and enhances the lawmaker's intent or purpose in aggravating the crime of illegal possession of firearm when an unlicensed firearm is used in the commission of murder or homicide. Contrary to the view of our esteemed brother, Mr. Justice Florenz D. Regalado, in his Concurring and Dissenting Opinion in the case under consideration, Tac-an did not enunciate an ―unfortunate doctrine‖ or a "speciously camouflaged theory" which "constitutes an affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense." If Tac-an did in fact enunciate such an "unfortunate doctrine," which this Court has reiterated in a convincing number of cases and for a convincing number of years, so must the same verdict be made in our decision in People vs. De Gracia,[44] which was promulgated on 6 July 1994. In the latter case, we held that unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of P.D. No. 1866 and also for a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. A distinction between that situation and the case where an unlicensed firearm is used in homicide or murder would have no basis at all. In De Gracia, this Court, speaking through Mr. Justice Florenz D. Regalado, made the following authoritative pronouncements: III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of rebellion. The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano (whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives and "molotov” bombs for and in behalf of the latter. We accept this finding of the lower court. The above provision of the law was, however, erroneously and improperly used by the court below as a basis in determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clearthat appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under Presidential Decree N o. 1866 which, in law, is distinct from the crime of rebellion punished under Article134 and 135 of the Revised Penal Code. There are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, orother offenses, such as illegal pos

session of firearms, that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the cri me of illegal possessionof firearms committed in the course or as part of a rebellion. As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the Court has explained that said provision of the law will not be invalidated by the mere fact that the same act ispenalized under two different statutes with different penalties, even if considered highly advantageous to the pro secution and onerous to the accused. It follows that, subject to the presence of requisite elements in each case,unlawful possession of an unlicensed firearm in furthera nce of rebellion may give rise to separate prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense punished by a special law while the second is a felony punished by the Revised Penal Code with variantelements. We cannot justify what we did in De Gracia with a claim that the virtue of fidelity to a controlling doctrine, i.e., of Tac-an, had compelled us to do so. Indeed, if Tac-an enunciated an "unfortunate doctrine" which is "an affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense," then De Gracia should have blazed the trail of a new enlightenment and forthwith set aside the "unfortunate doctrine" without any delay to camouflage a judicial faux pas or a doctrinal quirk. De Gracia provided an excellent vehicle for an honorable departure from Tac-an because no attack on the latter was necessary as the former merely involved other crimes to which the doctrine in Tac-an might only be applied by analogy. De Gracia did not even intimate the need to reexamine Tac-an; on the contrary, it adapted the latter to another category of illegal possession of firearm qualified by rebellion precisely because the same legal principle and legislative purpose were involved, and not because De Gracia wanted to perpetuate an "unfortunate doctrine" or to embellish "the expanding framework of our criminal law from barnacled ideas which have not grown apace with conceptual changes over time," as the concurring and dissenting opinion charges. The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it has become hostage to the "inertia of time [which] has always been the obstacle to the virtues of change," as the concurring and dissenting opinion finds it to be, but rather because it honestly believes that Tac-an laid down the correct doctrine. If P.D. No. 1866 as applied in Tac-an is an "affront on doctrinal concepts of penal laws and assails even the ordinary notions of common sense," the blame must not be laid at the doorsteps of this Court, but on the lawmaker's. All that the Court did in Tac-an was to apply the law, for there was nothing in that case that warranted an interpretation or the application of the niceties of legal hermeneutics. It did not forget that its duty is merely to apply the law in such a way that shall not usurp legislative powers by judicial legislation and that in the course of such application or construction it should not make or supervise legislation, or under the guise of interpretation modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms.[45] Murder and homicide are defined and penalized by the Revised Penal Code[46] as crimes against persons. They are mala in se because malice or dolo is a necessary ingredient therefor.[47] On the other hand, the offense of illegal possession of firearm is defined and punished by a special penal law, [48] P.D. No. 1866. It is a malum prohibitum[49] which the lawmaker, then President Ferdinand E. Marcos, in the exercise of his martial law powers, so condemned not only because of its nature but also because of the larger policy consideration of containing or reducing, if not eliminating, the upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition, and explosives. Ifintent to commit the crime were required, enforcement of the decree and its policy or purpose would be difficult to achieve. Hence, there is conceded wisdom in punishing illegal possession of firearm without taking into account the criminal intent of the possessor. All that is needed is intent to perpetrate the act prohibited by law, coupled, of course, by animus possidendi. However, it must be clearly understood that this animus possidendi is without regard to any other criminal or felonious intent which an accused may have harbored in possessing the firearm.[50] A long discourse then on the concepts of malum in se and malum prohibilum and their distinctions is an exercise in futility. We disagree for lack of basis the following statements of Mr. Justice Regalado in his Concurring and Dissenting Opinion, to wit: The second paragraph of the aforestated Section 1 expressly and unequivocally provides for such illegal possession and resultant killing as a single integrated offense which is punished as such. The majority not only created two offenses by dividing a single offense into two but, worse, it resorted to the unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former. It would already have been a clear case of judicial legislation if the illegal possession with murder punished with a single penalty have been divided into two separate offenses of illegal possession and murder with distinct penalties. It is consequently a compounded infringement of legislative powers for this Court to now, as it has done, treat that single offense as specifically described by the law and impose reclusion perpetua therefor (since the death penalty for that offense is still proscribed), but then proceed further by plucking out therefrom the crime of murder in order to be able to impose the death sentence. For indeed, on this score, it is beyond cavil that in the aggravated form of illegal possession, the consequential murder (or homicide) is an integrated element or integral component since without the accompanying death, the crime would merely be simple illegal possession of a firearm under the first paragraph of Section 1. The second paragraph of Section 1 of P.D. No. 1866 does not warrant and support a conclusion that it intended to treat "illegal possession and resultant killing" (emphasis supplied) "as a single and integrated offense" of illegal possession with homicide or murder. It does not use the clause as a result or on the occasion of to evince an intention to create a single integrated crime. By its unequivocal and explicit language, which we quote to be clearly understood: If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. (emphasis supplied) the crime of either homicide or murder is committed NOT AS A RESULT OR ON THE OCCASION of the violation of Section 1, but WITH THE USE of an unlicensed firearm, whose possession is penalized therein. There is a world of difference, which is too obvious, between (a) the commission of homicide or murder as a result or on the occasion of the violation of Section 1, and (b) the commission of homicide or murder with the use of an unlicensed firearm. In the first, homicide or murder is not the original purpose or primary objective of the offender, but a secondary event or circumstance either resulting from or perpetrated on the occasion of the commission of that originally or primarily intended. In the second, the killing, which requires a mensrea, is the primary purpose, and to carry that out effectively the offender uses an unlicensed firearm. As to the question then of Mr. Justice Regalado of whether this Court should also apply the rule enunciated here to P.D. No. 532 (Anti-Piracy and AntiHighway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer Penalties Therefor), the answer is resoundingly in the negative. In those cases, the lawmaker clearly intended a single integrated offense or a special complex offense because the death therein occurs as a result or on the occasion of the commission of the offenses therein penalized or was not the primary purpose of the offender, unlike in the second paragraph of Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532 provides:

SEC. 3. Penalties. -- Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon conviction by competent court be punished by: a. Piracy. - The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusionperpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed. b. Highway Robbery/Brigandage.-- The penalty of reclusion temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasionthereof, the penalty of death shall be imposed. (emphasis supplied) (b) Section 8 of P.D. No. 533 reads in part as follows: SEC. 8. Penal provisions. -- Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of reclusionperpetua to death shall be imposed. (emphasis supplied) and (c) Section 3 of P.D. No. 534 reads as follows: SECTION. 3. Penalties.-- Violations of this Decree and the rules and regulations mentioned in paragraph (f) of Section 1 hereof shall be punished as follows: a. by imprisonment from 10 to 12 years, if explosives are used: Provided, that if the explosion results (1) in physical injury to person, the penalty shall be imprisonment from 12 to 20 years, or (2) in the loss of human life,then the penalty shall be imprisonment from 20 years to life, or death; b. by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are used: Provided, that if the use of such substances results (1) in physical injury to any person, the penalty shall be imprisonment from 10 to 12 years, or (2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or death; x x x (emphasis supplied) The unequivocal intent of the second paragraph of Section 1 of P.D. No. 1866 is to respect and preserve homicide or murder as a distinct offense penalized under the Revised Penal Code and to increase the penalty for illegal possession of firearm where such a firearm is used in killing a person. Its clear language yields no intention of the lawmaker to repeal or modify, pro tanto,Articles 248 and 249 of the Revised Penal Code, in such a way that if an unlicensed firearm is used in the commission of homicide or murder, either of these crimes, as the case may be, would only serve to aggravate the offense of illegal possession of firearm and would not anymore be separately punished. Indeed, the words of the subject provision are palpably clear to exclude any suggestion that either of the crimes of homicide and murder, as crimes mala in se under the Revised Penal Code, is obliterated as such and reduced as a mere aggravating circumstance in illegal possession of firearm whenever the unlicensed firearm is used in killing a person. The only purpose of the provision is to increase the penalty prescribed in the first paragraph of Section 1 - reclusion temporal in its maximum period to reclusion perpetua -- to death, seemingly because of the accused's manifest arrogant defiance and contempt of the law in using an unlicensed weapon to kill another, but never, at the same time, to absolve the accused from any criminal liability for the death of the victim. Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term "penalty" in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an: There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or murder, the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death .... The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code. A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance. This would not be without precedent. By analogy, we can cite Section 17 of B.P. Blg. 179, which amended the Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides that when an offender commits a crime under a state of addiction, such a state shall be considered as a qualifying aggravating circumstance in the definition of the crime and the application of the penalty under the Revised Penal Code. In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a legislative intent to decriminalize homicide or murder if either crime is committed with the use of an unlicensed firearm, or to convert the offense of illegal possession of firearm as a qualifying circumstance if the firearm so illegally possessed is used in the commission of homicide or murder. To charge the lawmaker with that intent is to impute an absurdity that would defeat the clear intent to preserve the law on homicide and murder and impose a higher penalty for illegal possession of firearm if such firearm is used in the commission of homicide or murder. Evidently, the majority did not, as charged in the concurring and dissenting opinion, create two offenses by dividing a single offense into two. Neither did it resort to the "unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former." The majority has always maintained that the killing of a person with the use of an illegally possessed firearm gives rise to two separate offenses of (a) homicide or murder under the Revised Penal Code, and (b) illegal possession of firearm in its aggravated form. What then would be a clear case of judicial legislation is an interpretation of the second paragraph of Section 1 of P.D. No. 1866 that would make it define and punish a single integrated offense and give to the words WITH THE USE OF a similar meaning as the words AS A RESULT OR ON THE OCCASION OF, a meaning which is neither born out by the letter of the law nor supported by its intent. Worth noting is the rule in statutory construction that if a statute is clear, plain,

and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation,[51] leaving the court no room for any extended ratiocination or rationalization of the law.[52] Peregrinations into the field of penology such as on the concept of a single integrated crime or composite crimes, or into the philosophical domain of integration of the essential elements of one crime to that of another would then be unnecessary in light of the clear language and indubitable purpose and intent of the second paragraph of Section 1 of P.D. No. 1866. The realm of penology, the determination of what should be criminalized, the definition of crimes, and the prescription of penalties are the exclusive prerogatives of the legislature. As its wisdom may dictate, the legislature may even create from a single act or transaction various offenses for different purposes subject only to the limitations set forth by the Constitution. This Court cannot dictate upon the legislature to respect the orthodox view concerning a single integrated crime or composite crimes. The only apparent obstacle to the imposition of cumulative penalties for various acts is the rule on double jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice Regalado that the majority view offends the constitutional bar against double jeopardy under the "same-evidence" test enunciated in People vs. Diaz.[53] He then concludes: In the cases now before us, it is difficult to assume that the evidence for the murder in the first charge of aggravated illegal possession of firearm with murder would be different from the evidence to be adduced in the subsequent charge for murder alone. In the second charge, the illegal possession is not in issue, except peripherally and inconsequentially since it is not an element or modifying circumstance in the second charge, hence the evidence therefor is immaterial. But, in both prosecutions, the evidence on murder is essential, in the first charge because without it the crime is only simple illegal possession, and, in the second charge, because murder is the very subject of the prosecution. Assuming that all the other requirements under Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily present and can be validly raised to bar the second prosecution for murder? In fact, we can extrapolate the constitutional and reglementary objection to the cases of the other composite crimes for which a single penalty is imposed, such as the complex, compound and so-called special complex crimes. Verily, I cannot conceive of how a person convicted of estafa through falsification under Article 48 can be validly prosecuted anew for the same offense or either estafa or falsification; or how the accused convicted of robbery with homicide under Article 294 can be legally charged again with either of the same component crimes of robbery or homicide; or how the convict who was found guilty of rape with homicide under Article 335 can be duly haled before the court again to face charges of either the same rape or homicide. Why, then, do we now sanction a second prosecution for murder in the cases at bar since the very same offense was an indispensable component for the other composite offense of illegal possession of firearm with murder? Why would the objection of non bis in idim as a bar to a second jeopardy lie in the preceding examples and not apply to the cases now before us? We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised in this case. For another, the so-called "same-evidence" test is not a conclusive, much less exclusive, test in double jeopardy cases of the first category under the Double Jeopardy Clause which is covered by Section 21, Article III of the Constitution and which reads as follows: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Note that the first category speaks of the same offense. The second refers to the same act. This was explicitly distinguished in Yap vs. Lutero,[54] from where People vs. Relova[55] quotes the following: Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, Section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (italics in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas, the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has been attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case. Elsewise stated, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charged. The constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier and the subsequent offenses charged.[56] The question of identity or lack of identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. [57] It may be noted that to determine the ―same offense‖ under the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States of America which reads: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . . the rule applicable is the following: "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not."[58] The Double Jeopardy Clause of the Constitution of the United States of America was brought to the Philippines through the Philippine Bill of 1 July 1902, whose Section 5 provided, inter alia: [N]o person for the same offense shall be twice put in jeopardy of punishment . . . .

This provision was carried over in identical words in Section 3 of the Jones Law of 29 August 1916. [59] Then under the 1935 Constitution, the Jones Law provision was recast with the addition of a provision referring to the same act. Thus, paragraph 20, Section 1, Article III thereof provided as follows: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21, Article III of the present Constitution. This additional-element test in Lutero and Relova and in Blockburger, Gore, and Missouri would safely bring the second paragraph of Section 1 of P.D. No. 1866 out of the proscribed double jeopardy principle. For, undeniably, the elements of illegal possession of firearm in its aggravated form are different from the elements of homicide or murder, let alone the fact that these crimes are defined and penalized under different laws and the former is malum prohibitum, while both the latter are mala in se. Hence, the fear that the majority's construction of the subject provision would violate the constitutional bar against double jeopardy is unfounded. The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession of firearm in its aggravated form must, however, be modified. The penalty prescribed by P.D. No. 1866 is death. Since Section 19(1), Article III of the Constitution prohibits the imposition of the death penalty, the penalty next lower in degree, reclusion perpetual must be imposed. WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30 September 1993 of Branch 1 of the Regional Trial Court of Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 8178 and of illegal possession of firearm in its aggravated form in Criminal Case No. 8179 is AFFIRMED. The penalty imposed in the first case, as amended by the Order of 29 October 1993, is sustained; however, the penalty imposed in the second case is changed to Reclusion Perpetua from the indeterminate penalty ranging from Seventeen (17) years, Four (4) months, and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum. Costs de oficio. SO ORDERED. CASE DIGEST: RA 8294People vs. Quijada Case where a dance was held in a basketball court and Quijada kept on pestering Iroy‘s sister and Quijada killed the brother. He was convicted of two separate offenses of murder and illegal use of firearm aggravated with illegal use of firearm. The unequivocal intent of the second par of section 1. of PD 1866 is to respect and preserve homicide or murder as a distinctoffense penalized under the RPC and toincreasae the penalty for illegal possession of firearm where such a firearm is used in killing a person. Its clear language yields no intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the RPC in such away that if an unlicensed firearm is used in the commission of homicide or murder, either of these crimes, as the case may be, would only serve to aggravate the offense of illegal possession of firearm and would not anymore be separately punished. The words of the subject provision are palpably clear to exclude any suggestion that either of the crimes of homicide and murder, as crimes mala in se under the RPC is obliterated as such and reduced as a mere aggravating circumstance in illegalpossession of firearm whenever theunlicensed firearm is used in killing a person. The only purpose of the provision is to increase the penalty prescribed in 1st par of sec 1—reclusion temporal in its max to reclusion perpetua to death PEOPLE VS BAYONA Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-42288

February 16, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. CORNELIO BAYONA, defendant-appellant. Gervasio Diaz for appellant. Office of the Solicitor-General Hilado for appellee. VICKERS, J.:

This is an appeal from a decision of Judge Braulio Bejasa in the Court of First Instance of Capiz, finding the defendant guilty of a violation of section 416 of the Election Law and sentencing him to suffer imprisonment for thirty days and to pay a fine of P50, with subsidiary imprisonment in case of insolvency, and to pay the costs. The facts as found by the trial judge are as follows: A eso de las once de la mañana del dia 5 de junio de 1934, mientras se celebrahan las elecciones generales en el precinto electoral numero 4, situado en el Barrio de Aranguel del Municipio de Pilar, Provincia de Capiz, el aqui acusado fue sorprendido por Jose E. Desiderio, que era entonces el representante del Departamento del Interior para inspecionar las elecciones generales en la Provincia de Capiz, y por el comandante de la Constabularia F.B. Agdamag que iba en aquella ocasion con el citado Jose E. Desiderio, portando en su cinto el revolver Colt de calibre 32, No. 195382, Exhibit A, dentro del cerco que rodeaba el edificio destinado para el citado colegio electoral numero 4 y a una distancia de 22 metros del referido colegio electoral. Inmediatament Jose E. Desiderio se incauto del revolver en cuestion. La defensa, por medio del testimonio de Jose D. Benliro y de Dioscoro Buenvenida, trato de establecer que el aqui acusado paro en la calle que daba frente al colegio electoral numero 4 a invitacion de dicho Jose D. Benliro y con el objeto de suplicarle al mencionado acusado para llevar a su casa a los electores del citado Jose D. Benliro que ya habian terminado de votar, y que cuando llegaron Jose E. Desidierio y el comadante F.B. Agdamag, el aqui acusado estaba en la calle. Desde el colegio electoral hasta el sitio en que, segun dichos testigos, estaba el acusado cuando se le quito el revolver Exhibit a, hay una distancia de 27 metros. Appellant's attorney makes the following assignments of error: 1. El Juzgado a quo erro al declarar que el apelante fue sorprendido con su revolver dentro del cerco de la casa escuela del Barrio de Aranguel, Municipio de Pilar, que fue habilitado como colegio electoral. 2. El Juzgado a quo erro al declarar al apelante culpable de la infraccion de la Ley Electoral querrellada y, por consiguiente, al condenarle a prision y multa. As to the question of fact raised by the first assignment of error, it is sufficient to say that the record shows that both Jose E. Desiderio, a representative of the Department of the Interior, and Major Agdamag of the Philippine Constabulary, who had been designated to supervise the elections in the Province of Capiz, testified positively that the defendant was within the fence surrounding the polling place when Desiderio took possession of the revolver the defendant was carrying. This also disposes of that part of the argument under the second assignment of error based on the theory that the defendant was in a public road, where he had a right to be, when he was arrested. The latter part of the argument under the second assignment of error is that if it be conceded that the defendant went inside of the fence, he is nevertheless not guilty of a violation of the Election Law, because he was called by a friend and merely approached him to find out what he wanted and had no interest in the election; that there were many people in the public road in front of the polling place, and the defendant could not leave his revolver in his automobile, which he himself was driving, without running the risk of losing it and thereby incurring in a violation of the law. As to the contention that the defendant could not leave his revolver in his automobile without the risk of losing it because he was alone, it is sufficient to say that under the circumstances it was not necessary for the defendant to leave his automobile merely because somebody standing near the polling place had called him, nor does the record show that it was necessary for the defendant to carry arms on that occasion. The Solicitor-General argues that since the Government does not especially construct buildings for electoral precincts but merely utilizes whatever building there may be available, and all election precincts are within fifty meters from some road, a literal application of the law would be absurd, because members of the police force or Constabulary in pursuit of a criminal would be included in that prohibition and could not use the road in question if they were carrying firearms; that people living in the vicinity of electoral precincts would be prohibited from cleaning or handling their firearms within their own residences on registration and election days; That the object of the Legislature was merely to prohibit the display of firearms with intention to influence in any way the free and voluntary exercise of suffrage; That if the real object of the Legislature was to insure the free exercise of suffrage, the prohibition in question should only be applied when the facts reveal that the carrying of the firearms was intended for the purpose of using them directly or indirectly to influence the free choice of the electors (citing the decision of this court in the case of People vs. Urdeleon [G.R. No. 31536, promulgated November 20, 1929, not reported], where a policeman, who had been sent to a polling place to preserve order on the request of the chairman of the board of election inspectors, was acquitted); that in the case at bar there is no evidence that the defendant went to the election precinct either to vote or to work for the candidacy of anyone, but on the other hand the evidence shows that the defendant had no intention to go to the electoral precinct; that he was merely passing along the road in front of the building where the election was being held when a friend of his called him; that while in the strict, narrow interpretation of the law the defendant is guilty, it would be inhuman and unreasonable to convict him. We cannot accept the reasons advanced by the Solicitor-General for the acquittal of the defendant. The law which the defendant violated is a statutory provision, and the intent with which he violated it is immaterial. It may be conceded that the defendant did not intend to intimidate any elector or to violate the law in any other way, but when he got out of his automobile and carried his revolver inside of the fence surrounding the polling place, he committed the act complained of, and he committed it willfully. The act prohibited by the Election Law was complete. The intention to intimidate the voters or to interfere otherwise with the election is not made an essential element of the offense. Unless such an offender actually makes use of his revolver, it would be extremely difficult, if not impossible, to prove that he intended to intimidate the voters. The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the prohibited act was intentionally done. "Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act. ..." (U.S. vs. Go Chico, 14 Phil., 128.) While it is true that, as a rule and on principles of abstract justice, men are not and should not be held criminally responsible for acts committed by them without guilty knowledge and criminal or at least evil intent (Bishop's New Crim. Law, vol. I, sec. 286), the courts have always recognized the power of the

legislature, on grounds of public policy and compelled by necessity, "the great master of things", to forbid in a limited class of cases the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. (U.S. vs. Go Chico, 14 Phil., 128; U.S. vs. Ah Chong, 15 Phil., 488.) In such cases no judicial authority has the power to require, in the enforcement of the law, such knowledge or motive to be shown. (U.S. vs. Siy Cong Bieng and Co Kong, 30 Phil., 577.) The cases suggested by the Solicitor-General do not seem to us to present any difficulty in the enforcement of the law. If a man with a revolver merely passes along a public road on election day, within fifty meters of a polling place, he does not violate the provision of law in question, because he had no intent to perpetrate the act prohibited, and the same thing would be true of a peace officer in pursuing a criminal; nor would the prohibition extend to persons living within fifty meters of a polling place, who merely clean or handle their firearms within their own residences on election day, as they would not be carrying firearms within the contemplation of the law; and as to the decision in the case of People vs. Urdeleon, supra, we have recently held in the case of People vs. Ayre, and Degracia (p. 169, ante), that a policeman who goes to a polling place on the request of the board of election inspectors for the purpose of maintaining order is authorized by law to carry his arms. If we were to adopt the specious reasoning that the appellant should be acquitted because it was not proved that he tried to influence or intended to influence the mind of any voter, anybody could sell intoxicating liquor or hold a cockfight or a horse race on election day with impunity. As to the severity of the minimum penalty provided by law for a violation of the provision in question, that is a matter for the Chief Executive or the Legislature. For the foregoing reasons, the decision appealed from is affirmed, with the costs against the appellant. Avanceña, C.J., Street, Abad Santos, and Hull, JJ., concur. PEOPLE VS SITCHON EN BANC

[G.R. No. 134362. February 27, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMELITO SITCHON y TAYAG, accused-appellant. DECISION KAPUNAN, J.: For beating to death the two-year old son of his common-law wife, accused-appellant Emelito Sitchon y Tayag was convicted of murder and sentenced to death by the Regional Trial Court of Manila. His case is now before this Court on automatic review. Appellant was charged in an information stating: That on or about June 12, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon one MARK ANTHONY FERNANDEZ y TABORA a minor, 2 ½ years old, by then and there mauling and clubbing him on the different parts of his body with the use of a steel hammer and a wooden stick, approximately 18 inches long, thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death thereafter. CONTRARY TO LAW.[1] Appellant pleaded not guilty to the above charge. [2] However, before testifying in his own defense on June 4, 1998, appellant admitted that he killed the victim and changed his plea to guilty.[3] Five witnesses testified for the prosecution, namely, Lilia Garcia, a neighbor; the victim's eight-year old brother Roberto; the investigating officer, PO3 Paul Dennis Javier; Dr. Manuel Lagonera, medico-legal officer of the National Bureau of Investigation (NBI); and Felicisima Francisco, a forensic chemist of the same agency. Appellant lived in the second floor of a three-square meter house located at 2001 Batangas Street, Tondo, Manila. His neighbor of two months, Lilia Garcia, resided in the first floor of the same house. At about 10:00 in the morning of June 12, 1996, Lilia was in front of the house attending to her children when she heard the sound of a boy crying. Curious, Lilia went up the stairway, her children in tow. The open door of the upper floor allowed Lilia to witness appellant beating two-year old Mark Anthony Fernandez. From a distance of less than three arms‘ length, Lilia saw appellant hit various parts of the boy‘s body with a piece of wood, about 14 ½ inches in length and 2 ½ inches in diameter. Appellant also banged the head of the boy against the wooden wall. The beating went on for about one hour. Lilia then saw appellant carry the boy down the house to bring him to the hospital. The two-year old was ―already black‖ and no longer moving.[4]

Eight-year old Roberto Fernandez is the elder brother of the victim, also known as Macky. According to Roberto, Macky had scattered his feces all over the house. Appellant, whom Roberto called Kuya Chito, thus beat Macky with a belt, a hammer and a ―2x2‖ piece of wood. Roberto could not do anything to help his brother because he was afraid Kuya Chito might also beat him up. When Kuya Chito brought Macky to the hospital, his little brother, who could barely talk, was not crying anymore.[5] Roberto identified the two pieces of wood[6] that appellant allegedly used in beating the victim. He also identified the T-shirt[7] that Macky wore when he died. A certain Alice Valerio from the Galang Medical Hospital informed PO3 Paul Dennis Javier that a boy had been admitted there. When PO3 Javier went to the hospital, he found the boy already dead. He observed that the child had wounds on the left middle finger, the right index finger and both feet. The child also had lacerations in the upper lip and contusions all over his head and body. PO3 Javier proceeded to appellant‘s house at No. 2001, Batangas Ext., Tondo, Manila. Human feces and fresh blood splattered on the floor. PO3 Javier recovered from the house the broken wooden sticks, the steel hammer,[8] which were allegedly used to beat up the boy, as well as a bloodstained white T-shirt. PO3 Javier then went to the house of appellant‘s sister in Del Fierro St., Tondo, who informed him of matters relative to appellant‘s identification. Thereafter, the police conducted a search operation in Cavite where appellant‘s mother lived but they did not find him there. Later that afternoon, PO3 Javier learned that appellant had surrendered to Station 3 of their district. The following day, a staff member of the television program Magandang Gabi Bayan turned over to PO3 Javier a brown belt which appellant allegedly also used in beating the victim. Roberto Fernandez, the victim‘s brother, had given the belt to the staff member.[9] Dr. Manuel Lagonera, medico-legal officer of the NBI, conducted the postmortem examination of the victim‘s body on June 12, 1996 at 4:40 p.m. He found that the boy had suffered many injuries, including three wounds at the head and the anterior chest, which could have been inflicted with the use of blunt objects such as a piece of wood or a fist. The child could have been dead three to four hours, or not more than eight hours, prior to the postmortem examination. Dr. Lagonera concluded that the victim died of ―bilateral pneumonia secondary to multiple blunt traversal injuries‖ or complication of the lungs due to said injuries.[10] The autopsy report of Dr. Lagonera shows that Mark Anthony Fernandez sustained the following injuries: EXTERNAL FINDINGS: 1. Multiple old scars, forehead. 2. Healing lacerated wound, left forehead. 3. Healed lacerated wound, above the left eyebrow, measuring 1.2x0.2 cm. 4. Healed linear abrasions, left cheek. 5. Lacerated wound, extending up to the mucous membrane of the upper lip, measuring 2 x0.3 cm. 6. Contussion (sic), left temporo-parietal region, measuring 6x5 cms. 7. Healing lacerated wound, left zygomatic region, measuring 0.5x0.3 cm. 8. Contussion (sic), left jaw, measuring 1.5x1 cm. 9. Contussion (sic), right anterior thorax, measuring 17x12 cms. 10.

Contussion (sic), right anterior forearm.

11.

Lacerated wound, tip of the forefinger, right.

12.

Old scar, upper 3rd , right anterior thigh.

13.

Contussion (sic), right lower leg, above and below the knee measuring 9x5 cms.

14.

Contussion (sic), left lower leg, above and below the knee, measuring 13x6 cms.

15.

Hematoma, big toe, under the nail bed, right.

16.

Contusso-abrasion, dorsum of the left foot, measuring 6x2 cms.

17.

Contussion (sic), left posterior thorax, measuring 17x6 cms.

18.

Contussion (sic), right postero-lateral thorax, extending up to the right lumbar region, measuring 13x6 cms.

19.

Contussion (sic), right posterior forearm, measuring 24x8 cms.

20.

Contussion (sic), left posterior forearm, measuring 22x7 cms.

21.

Healing abrasion, right buttocks, measuring 2x0.5 cm.

22.

Plucked finger nail, left middle finger, with hematoma of the nail bed.

23.

Posterior hand, both swollen. INTERNAL FINDINGS:

1. Presence of left sub-aponeurotic hematoma, temporo-parietal region and over the mid-occipital region.

2. Hematoma over the sternum and pectoralis muscles. 3. Both lungs showed patcy and confluent consolidations. 4. Small amount of rice porridge was recovered from the stomach. [11] Felicisima M. Francisco, NBI forensic chemist, conducted an examination to determine the presence and ―grouping‖ of human blood found on the steel hammer, the wooden sticks, and the T-shirt that were sent to his office by P/Sr. Inspector Pedro Ramos Angulo, Jr. of the Western Police District in Manila. [12] She prepared Report No. B-96-941 stating that Specimen No. 1 or the steel hammer, was positive for human blood ―but insufficient for blood group.‖ Specimen Nos. 2 (the broken wooden sticks) and 3 (the white T-shirt) were also positive for human blood ―showing reactions of Group A.‖ [13] Only appellant, 40, a sidewalk vendor, testified for the defense. As stated earlier, appellant admitted killing the two-year old victim, the son of his ―live-in‖ partner. He and the boy‘s mother had lived together for two years before the incident, starting when the boy was about a year old. He claimed he enjoyed a harmonious relationship with his partner and that he killed the boy only because he was under the influence of shabu, marijuana and Valium 10 at that time. Appellant professed that he began using drugs in 1974 and that he had also taken drugs two weeks before the incident. On June 12, 1996, appellant came upon Macky playing with his feces, scattering them all over the pillow, the bed sheets and the curtains. Appellant scolded the boy, ―Putang-ina ka Macky! Bakit mo ikinalat ng ganyan ang tae mo? Halika, dadalhin kita sa baba para hugasan!‖ Appellant got hold of Macky but the boy struggled to free himself from appellant‘s grasp. Appellant, still reeling from the Valium 10 he had just taken, became so angry that he picked up a broom with a wooden handle, and hit the boy. Appellant did not realize that he had hit Macky hard until he saw the boy sprawled on the floor, breathing with difficulty. He dressed Macky and brought him to the Galang Medical Center at the corner of Abad Santos Avenue and Tayabas Street, Manila. He prayed to God that nothing serious would happen to the boy. A lady doctor immediately attended to Macky. Appellant pleaded to the lady doctor to do all she can to save the child; otherwise, he would be in serious trouble. After examining the child, the doctor told appellant that she could not do anything more – Macky was dead. The same day, appellant surrendered to the police. He was brought to the Homicide Section at 3:00 p.m. Explaining his change of plea, appellant clarified that the killing of the boy was "accidental." He reiterated that he was under the influence of drugs, which he had taken one after the other. He was a drug dependent and, in fact, had been confined at the Tagaytay Rehabilitation Center. He said he was conscious when the incident happened but he simply did not realize that he had hit the child hard with the broom‘s wooden handle. He denied having hit the boy with a hammer or having banged his head against the wall. He hoped the trial court would be lenient with him because of his voluntary surrender. He prayed that the court would not impose upon him the death penalty.[14] Nevertheless, on July 3, 1998, the trial court promulgated its decision, the dispositive portion of which reads: WHEREFORE, this Court finds the accused, Emelito Sitchon y Tayag, guilty beyond reasonable doubt of the crime of murder and is sentenced to suffer the death penalty and to pay the costs. The accused is further ordered to pay the mother of the victim Christina Tabora, moral and nominal damages in the respective sums of P100,000.00 and P50,000.00, plus death compensation in the sum of P50,000.00, with interest thereon at the legal rate from this date until fully paid. SO ORDERED.[15] The Court entertains little doubt that appellant is guilty of the killing of Mark Anthony Fernandez. Appellant‘s guilt was adequately established by the testimonies of Lilia Garcia and Roberto Fernandez, who both saw appellant beat Macky. These testimonies were further corroborated by those of PO3 Paul Dennis Javier, Dr. Manuel Lagonera and Felicisima Francisco, as well as the various pieces of object evidence. Indeed, appellant in open court admitted beating the poor child, which beating resulted in the latter‘s death. That appellant purportedly did not intend to kill the toddler would not exculpate him from liability. Article 4(1) of the Revised Penal Code provides that criminal liability shall be incurred by any ―person committing a felony (delito) although the wrongful act done be different from that which he intended.‖ The rationale of the rule is found in the doctrine that ―el que es causa de la causa es causa del mal causado‖ (he who is the cause of the cause is the cause of the evil caused). [16] Thus, where the accused violently kicked the sleeping victim in vital parts of the latter‘s body, the accused is liable for the supervening death as a consequence of the injuries.[17] Assuming, therefore, that appellant merely intended to inflict physical injuries upon the boy, he is nevertheless liable for the death of the victim caused by such injuries. The killing in this case was attended by treachery. 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 especially to insure its execution without risk to himself arising from the defense which the offended party might make.[18] It is beyond dispute that the killing of minor children who, by reason of their tender years, could not be expected to put up a defense, is treacherous. [19] Evident premeditation is absent. For the court to appreciate evident premeditation, the prosecution must prove: (a) the time the accused decided to commit the crime; (b) an overt act manifestly indicating that he clung to his determination; and (c) sufficient lapse of time between the decision and the execution to allow the accused to reflect upon the consequence of his act.[20]The prosecution failed to establish any of these requisites. The trial court incorrectly appreciated cruelty against the accused. The test in appreciating cruelty as an aggravating circumstance is whether the accused deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission, or inhumanly increased the victim‘s suffering or outraged or scoffed at his person or corpse.[21] The nature of cruelty lies in the fact that the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is unnecessary for the consummation of the criminal act which he intended to commit.[22] The sheer number of wounds, however, is not a test for determining whether cruelty attended the commission of a crime. [23] The prosecution did not show that appellant enjoyed inflicting injuries upon the victim. The inordinate force employed by appellant appears to have been caused not by any sadistic bend but rather by the drugs that diminished his capacity. The trial court also considered intoxication as an aggravating circumstance. The Solicitor General defends this ruling, contending that appellant‘s habitual drug addiction is an alternative circumstance analogous to habitual intoxication under Article 15 of the Revised Penal Code:

Intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance. The Court does not agree. Article 13 of the Revised Penal Code provides a list of mitigating circumstances, which work to reduce the accused‘s penalty. Article 13(10) allows courts to consider ―any other circumstance of a similar nature and analogous to those‖ mentioned therein. Neither Article 14 of the same Code on aggravating circumstances[24] nor Article 15 on alternative circumstances,[25] however, contain a provision similar to Article 13(10). Accordingly, the Court cannot consider appellant‘s drug addiction as an aggravating circumstance. Criminal statutes are to be strictly construed and no person should be brought within their terms who is not clearly within them.[26] Appellant maintains that his plea of guilt mitigates his criminal liability. On this matter, this Court said in People v. Ramos:[27] To effectively alleviate the criminal liability of an accused, a plea of guilt must be made at the first opportunity, indicating repentance on the part of the accused. In determining the timeliness of a plea of guilty, nothing could be more explicit than the provisions of the Revised Penal Code requiring that the offender voluntarily confess his guilt before the court prior to the presentation of the evidence for the prosecution. It is well-settled that a plea of guilty made after arraignment and after trial had begun does not entitle the accused to have such plea considered as a mitigating circumstance. As appellant changed his plea only after the prosecution had rested its case and just when he was just about to testify, said mitigating circumstance is unavailing. The trial court credited appellant with the mitigating circumstance of voluntary surrender. For voluntary surrender to be appreciated, these elements must be established: (1) the offender has not been actually arrested; (2) he surrendered himself to a person in authority or an agent of a person in authority; and (3) his surrender was voluntary.[28] It is sufficient that the surrender be ―spontaneous and made in a manner clearly indicating the intent of the accused to surrender unconditionally, either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense which will necessarily be incurred in searching for and capturing him.[29] Appellant has failed to adequately prove voluntary surrender. While he claimed that he ―surrendered‖ to the police on the same day that the victim was killed, he did not detail the circumstances like the time and place of such surrender. Neither did appellant state to whom he surrendered. He did not indicate if the person was a person in authority or an agent of the latter. PO3 Javier‘s testimony that he ―learned‖ of appellant‘s alleged surrender is hearsay and does not serve to corroborate appellant‘s claim. The Court, however, discerns no intention on the part of appellant to commit so grave a wrong against his victim. Appellant‘s intention was merely to maltreat the victim, not to kill him. When appellant realized the horrible consequences of his felonious act, he immediately brought the victim to the hospital. [30] Sadly, his efforts were for naught. In view of the attendance of the aggravating circumstance of treachery, the killing of the victim is qualified to murder, punishable under Article 248 of the Revised Penal Code by reclusion perpetua to death. The murder was attended by the mitigating circumstance of lack of intention to commit so grave a wrong and there is no aggravating circumstance. Hence, the lesser penalty of reclusion perpetua must be imposed upon appellant.[31] Appellant is liable for civil indemnity of P50,000.00 without proof of damages.[32] Moral damages that are recoverable for the mental anguish or emotional distress suffered by the heirs of the victim cannot be awarded here as the prosecution did not present any evidence to justify its award.[33] WHEREFORE, accused-appellant Emelito Sitchon y Tayag is found GUILTY beyond reasonable doubt of Murder, as defined and punished by Article 248 of the Revised Penal Code, and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the heirs of Mark Anthony Fernandez civil indemnity in the amount of P50,000.00. SO ORDERED. CASE DIGEST: Facts: Sitchon beat up a little 2 year old boy named Mark Anthony Fernandez to death. Victim mark spread his feces all over the floor and this enraged Sitchon. Sitchon struck him with a belt, 2x2 wood, and a hammer. He even banged the little kid‘s head on the wooden wall. This was witnessed by victim-mark‘s older brother Roberto. The next door neighbor Lilia also witnessed the beating through the open door after she heard the cries of victimmark. Later, Sitchon brought victim-mark to the hospital but he was already dead then. Sitchonis the live-in partner of Mark‘s mom. He is also a drug addict, he was then high from Valium 10. Sitchon pleaded guilty after defense rested its case and pleaded the defense of accident. The lower court convicted him of murder, qualified by treachery, aggravated by cruelty and alternative circumstance of intoxication. Sitchon sentenced to death [note: 1998 RTC decision and 2002 SC decision].

Issue: What are the different aggravating and mitigating circumstances applicable in this case?

Held: Murder, qualified by treachery, mitigated by lack of intention to commit so grave a wrong. Cruelty is not present here. The test in appreciating cruelty as an aggravating circumstance is whether the accused deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission, or inhumanly increased the victim‘s suffering or outraged or scoffed at his person or corpse. The nature of cruelty lies in the fact that the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is unnecessary for the consummation of the criminal act which he intended to commit. The sheer number of wounds, however, is not a test for determining whether cruelty attended the commission of a crime. The prosecution failed to show that Sitchon enjoyed the beating. The inordinate force employed by appellant appears to have been caused not by any sadistic bend but rather by the drugs that diminished his capacity. Treachery is evidently present here. Whenever you beat up a two-year old kid, its treacherous. Impossible for the kid to defend himself. Mitigating circumstance of plea of guilty cannot be appreciated here. It is well-settled that a plea of guilty made after arraignment and after trial had begun does not entitle the accused to have such plea considered as a mitigating circumstance. Here, Sitchon pleaded guilty only after the prosecution rested his case.

Lack of intention to commit so grave a wrong is present since his only intention was to maltreat and not to kill mark. When he realized what he did, he immediately brought mark to the hospital but it was too late. Voluntary surrender cannot be appreciated because he failed to prove any of the circumstances The trial court appreciated intoxication as an aggravating circumstance although it was clear that Sitchon isn‘t alcohol dependent but rather a drug addict. SC said that alternative circumstance of intoxication is clear when it refers to alcohol and thus is not applicable to Sitchon‘s case. Article 14 on aggravating and article 15 on alternative do not contain an ―Analogous provision‖ unlike Article 13 on mitigating circumstances. Criminal statutes are to be strictly construed in favor of the accused. And no person should be brought within its terms who is not clearly covered by it. PEOPLE VS FLORA AND FLORA

SECOND DIVISION [G.R. No. 125909. June 23, 2000] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMOGENES FLORA AND EDWIN FLORA, accused-appellants. DECISION QUISUMBING, J.: Accused-appellants seek the reversal of the decision[1] dated November 7, 1995, of the Regional Trial Court, Branch 26, Santa Cruz, Laguna, in Criminal Case Nos. SC-4810, 4811 and 4812, finding them guilty beyond reasonable doubt of the crimes of double murder and attempted murder, and sentencing them to reclusion perpetua, payment of P50,000.00 for indemnity, P14,000.00 for burial expenses and P619,800.00 for loss of earning capacity in Crim. Case SC-4810 for the death of Emerita Roma; reclusion perpetua, payment of P50,000.00 as indemnity, P14,000.00 for burial expenses and P470,232.00 for loss of earning capacity for the death of Ireneo Gallarte in Crim. Case SC-4811; and imprisonment from 2 years, 4 months and 1 day of prision correccional as minimum to 10 years of prision mayor and payment of P15,000.00 to Flor Espinas for injuries sustained in Crim. Case SC-4812. On February 26, 1993, Prosecution Attorney Joselito D.R. Obejas filed three separate informations charging appellants as follows: Criminal Case No. 4810 "That on or about January 10, 1993, at around 1:30 o‘clock in the morning thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of this Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and confederating with accused Edwin Flora @ Boboy, and mutually helping one another, while conveniently armed then with a caliber .38 handgun, with intent to kill, by means of treachery and with evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said firearm one EMERITA ROMA y DELOS REYES, thereby inflicting upon the latter gunshot wounds on her chest which caused her immediate death, to the damage and prejudice of her surviving heirs. That in the commission of the crime, the aggravating circumstances of treachery and evident premeditation are present." [2] Criminal Case No. 4811 "That on or about January 10, 1993, at around 1:30 o‘clock in the morning thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of this Honorable Court, accused HERMOGENES FLORA @ Bodoy, conspiring and confederating with accused Erwin [Edwin] Flora @ Boboy, and mutually helping one another, while conveniently armed then with a caliber .38 handgun, with intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said firearm one IRENEO GALLARTE y VALERA, thereby inflicting upon the latter gunshot wounds on his chest which caused his immediate death, to the damage and prejudice of his surviving heirs. That in the commission of the crime, the aggravating circumstances of treachery and evident premeditation are present." [3] Criminal Case No. 4812 "That on or about January 10, 1993, at around 1:30 o‘clock in the morning thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of this Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and confederating with accused Erwin [Edwin] Flora @ Boboy, and mutually helping one another, while conveniently armed then with a caliber .38 handgun, with intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said firearm one FLOR ESPINAS y ROMA, hitting the latter on her shoulder, and inflicting upon her injuries which, ordinarily, would have caused her death, thus, accused performed all the acts of execution which could have produced the crime of Murder as a consequence but which, nevertheless did not produce it by reason of a cause independent of their will, that is, by the timely and able medical attendance given the said Flor Espinas y Roma, which prevented her death, to her damage and prejudice." [4]

During arraignment, both appellants pleaded not guilty. Trial thereafter ensued. Resolving jointly Criminal Cases Nos. SC-4810, SC-4811 and SC-4812, the trial court convicted both appellants for the murder of Emerita Roma and Ireneo Gallarte, and the attempted murder of Flor Espinas. The dispositive portion of the decision reads: "WHEREFORE, in the light of the foregoing, this Court finds as follows: In CRIMINAL CASE NO. SC-4810, for the death of Emerita Roma, the Court finds both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Murder qualified by treachery and sentences each of them to suffer the penalty of reclusion perpetua, with all the accessory penalties of the law, and to indemnify the heirs of the victim the sums of (a) P50,000.00 as death indemnity; (b) P14,000.00 as expenses for wake and burial; and (c) P619,800 for lost (sic) of earning capacity, without any subsidiary imprisonment in case of insolvency and to pay the costs. In CRIMINAL CASE NO. SC-4811, for the death of Ireneo Gallarte, the Court finds both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Murder, qualified by treachery and with the aggravating circumstance of evident premeditation and sentences each of them to suffer the penalty of reclusion perpetua, with all the accessory penalties of the law, and to indemnify the heirs of the victim the sums of (a) P50,000.00 as death indemnity; (b) P14,000.00 as expenses for wake and burial; and (c) P470,232.00 for lost (sic) of earning capacity, without any subsidiary imprisonment in case of insolvency and to pay the costs. In CRIMINAL CASE NO. SC-4812, for the injuries sustained by Flor Espinas, the Court finds both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Attempted Murder and sentences each of them to suffer an indeterminate penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and to pay P15,000.00 to Flor Espinas as indemnity for her injuries and to pay the costs. SO ORDERED."[5] The facts of the case, borne out by the records, are as follows: Days before the incident, appellant Hermogenes Flora alias "Bodoy," had a violent altercation with a certain Oscar Villanueva. Oscar‘s uncle, Ireneo Gallarte, pacified the two. On the evening of January 9, 1993, a dance party was held to celebrate the birthday of Jeng-jeng Malubago in Sitio Silab, Barangay Longos, Kalayaan, Laguna. Appellant Hermogenes Flora, allegedly a suitor of Jeng-jeng Malubago, attended the party with his brother and co-appellant Edwin Flora, alias "Boboy". Also in attendance were Rosalie Roma, then a high school student; her mother, Emerita Roma, and her aunt, Flor Espinas. Ireneo Gallarte, a neighbor of the Romas, was there too. The dancing went on past midnight but at about 1:30, violence erupted. On signal by Edwin Flora, Hermogenes Flora fired his .38 caliber revolver twice. The first shot grazed the right shoulder of Flor Espinas, then hit Emerita Roma, below her shoulder. The second shot hit Ireneo Gallarte who slumped onto the floor. Rosalie, was shocked and could only utter, "si Bodoy, si Bodoy", referring to Hermogenes Flora. Edwin Flora approached her and, poking a knife at her neck, threatened to kill her before he and his brother, Hermogenes, fled the scene. The victims of the gunfire were transported to the Rural Health Unit in Longos, Kalayaan, Laguna, where Emerita and Ireneo died.[6] Early that same morning of January 10, 1993, the police arrested Edwin Flora at his rented house in Barangay Bagumbayan, Paete, Laguna. Hermogenes Flora, after learning of the arrest of his brother, proceeded first to the house of his aunt, Erlinda Pangan, in Pangil, Laguna but later that day, he fled to his hometown in Pipian, San Fernando, Camarines Sur. The autopsy conducted by the medico-legal officer, Dr. Ricardo R. Yambot, Jr., revealed the following fatal wounds sustained by the deceased: EMERITA ROMA "a) Gunshot of entrance at the posterior chest wall near the angle of the axillary region measuring 1 cm. in diameter with clean cut inverted edges involving deep muscles, and subcutaneous tissues and travel through both lobes of the lungs, including the great blood vessels. About 400 cc of clotted blood was extracted from the cadaver. The bullet caliver 38 was extracted from the lungs. The cause of her death was attributed to ‗Hypovolemic‘ shock secondary to massive blood loss secondary to gunshot wound of the posterior chest wall."[7] IRENEO GALLARTE "Gunshot wound of entrance at the left arm, measuring 1 cm. in diameter with clean cut inverted edges involving the deep muscles, subcutaneous tissues traveling through the anterior chest wall hitting both lobes of the lungs and each great blood vessels obtaining the bullet fragments.

About 500 cc. of clotted blood was obtained from the cadaver." His cause of death was attributed to ‗Hypovelemic‘ shock secondary to massive blood loss secondary to gunshot wound of the left arm."[8] Flor Espinas submitted herself to a medical examination by Dr. Dennis Coronado. Her medical certificate [9] disclosed that she sustained a gunshot wound, point of entry, 2 x 1 cm. right supra scapular area mid scapular line (+) contusion collar; and another gunshot wound with point of exit 1 x 1 cm. right deltoid area. Three criminal charges were filed against the Flora brothers, Hermogenes and Edwin, before Branch 26 of the Regional Trial Court of Sta. Cruz, Laguna. During the trial, the prosecution presented two eyewitnesses, namely, (1) Rosalie Roma, daughter of one of the victims, Emerita Roma, and (2) Flor Espinas, the injured victim. Rosalie narrated the treacherous and injurious attack by Hermogenes Flora against the victims. Flor detailed how she was shot by him. Felipe Roma, the husband of Emerita, testified that his wife was forty-nine (49) years old at the time of her death and was a paper mache maker, earning an average of one thousand (P1,000.00) pesos a week. He claimed that his family incurred fourteen thousand (P14,000.00) pesos as expenses for her wake and burial. Ireneo Gallarte‘s widow, Matiniana, testified that her husband was fifty-two (52) years old, a carpenter and a substitute farmer earning one hundred (P100.00) to two hundred (P200.00) pesos a day. Her family spent fourteen thousand (P14,000.00) pesos for his wake and burial. The defense presented appellants Hermogenes and Edwin Flora, and Imelda Madera, the common-law wife of Edwin. Appellants interposed alibi as their defense, summarized as follows: Version of Edwin Flora: "Edwin Flora, 28 years old, testified that accused Hermogenes Flora is his brother. On January 10, 1993, around 1:30 in the morning, he was at Barangay Bagumbayan, Paete, Laguna in the house of Johnny Balticanto, sleeping with his wife. Policemen came at said house looking for his brother Hermogenes. Replying to them that his brother was not living there, policemen took him instead to the Municipal building of Paete and thereafter transferred and detained him to (sic) the Municipal building of Kalayaan. He recalled that on January 9, 1993, after coming from the cockpit at about 3:00 p.m. he and his accused brother passed by the house of Julito Malubago. His brother Hermogenes was courting the daughter of Julito Malubago. At about 6:00 p.m. he went home but his brother stayed behind since there would be a dance party that night."[10] Version of Hermogenes Flora: "Hermogenes Flora, 21 years old, testified that he did not kill Ireneo Gallarte and Emerita Roma and shot Flor Espina on January 10, 1993 at about 1:30 in the morning of Silab, Longos Kalayaan Laguna. On said date, he was very much aslept (sic) in the house of his sister Shirley at Sitio Bagumbayan, Longos, Kalayaan. From the time he slept at about 8:00 in the evening to the time he woke up at 6:00 in the morning, he had not gone out of her sister‘s house. He knew the victims even before the incident and he had no severe relation with them. xxx He also testified that in the morning of January 10, 1993, Imelda Madera came to their house and told him that his brother Edwin was picked-up by the policemen the night before. Taken aback, his sister told him to stay in the house while she would go to the municipal hall to see their brother Edwin. Thereafter, his aunt and sister agreed that he should go to Bicol to inform their parents of what happened to Edwin."[11] Madera corroborated the testimony of her husband. [12] As earlier stated, the trial court convicted accused-appellants of the crime of double murder and attempted murder. Appellants now raise this sole assigned error: "THE TRIAL COURT ERRED IN CONVICTING THE TWO ACCUSED-APPELLANTS DESPITE THE FAILURE OF THE PROSECUTION TO MORALLY ASCERTAIN THEIR IDENTITIES AND GUILT FOR THE CRIMES CHARGED." At the outset, it may be noted that the trial court found both appellants have been positively identified. However, they challenge the court‘s finding that they failed to prove their alibi because they did not establish that it was physically impossible for them to be present at the crime scene. According to the trial court, by Hermogenes‘ own admission, the house of his sister Shirley, where appellants were allegedly sleeping, was only one (1) kilometer away from Sitio Silab, where the offenses allegedly took place. The sole issue here, in our view, concerns only the plausibility of the appellants‘ alibi and the credibility of the witnesses who identified them as the perpetrators of the crimes charged. For the defense of alibi to prosper, it is imperative that the accused establish two elements: (1) he was not at the locus delicti at the time the offense was committed, and (2) it was physically impossible for him to be at the scene at the time of its commission. [13] The defense of alibi and the usual corroboration thereof are disfavored in law since both could be very easily contrived.[14] In the present case, appellants‘ alibi is patently self-serving. Although Edwin‘s testimony was corroborated by his common-law wife, it is ineffectual against the positive testimonies of eyewitnesses and surviving victims who contradicted his alibi. Moreover, an alibi becomes less

plausible as a defense when it is invoked and sought to be crafted mainly by the accused himself and his immediate relative or relatives.[15] Appellants‘ defense of alibi should have been corroborated by a disinterested but credible witness. [16] Said uncorroborated alibi crumbles in the face of positive identification made by eyewitnesses.[17] In their bid for acquittal, appellants contend that they were not categorically and clearly identified by the witnesses of the prosecution. They claim that the testimonies of the said witnesses were not entitled to credence. They assail the credibility of two eyewitnesses, namely Rosalie Roma and Flor Espinas, because of the alleged inconsistencies in their testimonies. For instance, according to appellants, Rosalie Roma testified she was in the dance hall when the gunshots were heard, and that she was dancing in the middle of the dance hall when Hermogenes shot Emerita Roma, Ireneo Gallarte and Flor Espinas, "Q....Where were you when Hermogenes Roma shot these Ireneo Gallarte, Emerita Roma and Flor Espinas? A....I was dancing, sir. (Emphasis ours.) Q....And how far were you from Hermogenes Flora when he shot these persons while you were dancing? A....Two armslength from me only, sir."[18] However, to a similar question, later in her testimony, she replied, "Q....And where were these Emerita Roma, Your mother, Ireneo Gallarte and Flor Espinas when Hermogenes Flora shot at them? A....They were beside each other. Q....And how far were you from these 3 persons? A....Because they were standing beside the fence and I was only seated near them, sir."[19] (Emphasis ours.) On this issue, we do not find any inconsistency that impairs her credibility or renders her entire testimony worthless. Nothing here erodes the effectiveness of the prosecution evidence. What counts is the witnesses‘ admitted proximity to the appellants. Was she close enough to see clearly what the assailant was doing? If so, is there room for doubt concerning the accuracy of her identification of appellant as one of the malefactors? Appellants argue that since the attention of witness Flor Espinas was focused on the dance floor, it was improbable for her to have seen the assailant commit the crimes. On cross-examination, said witness testified that while it was true she was watching the people on the dance floor, nonetheless, she also looked around (gumagala) and occasionally looked behind her and she saw both appellants who were known to her.[20] Contrary to appellants‘ contention that Flor did not have a sufficient view to identify the assailants, the trial court concluded that Flor was in a position to say who were in the party and to observe what was going on. On this point, we concur with the trial court. Well-settled is the rule that findings of the trial court on the credibility of witnesses deserve respect, for it had the opportunity to observe first-hand the deportment of witnesses during trial.[21]Furthermore, minor inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather than weaken their credibility.[22] Inconsistencies in the testimony of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony. [23] Such minor flaws may even enhance the worth of a testimony, for they guard against memorized falsities. Appellants assert that Flor Espinas and Rosalie Roma were biased because they are relatives of the victim Emerita Roma. However, unless there is a showing of improper motive on the part of the witnesses for testifying against the accused, the fact that they are related to the victim does not render their clear and positive testimony less worthy of credit. On the contrary, their natural interest in securing the conviction of the guilty would deter them from implicating other persons other than the culprits, for otherwise, the latter would thereby gain immunity. [24] Here, appellants did not present any proof of improper motive on the part of the eyewitnesses in pointing to the Flora brothers as the perpetrators of the crime. There is no history of animosity between them. Emerita Roma and Flor Espinas were merely innocent bystanders when hit by gunfire. Where eyewitnesses had no grudge against the accused, their testimony is credible.[25] In the absence of ulterior motive, mere relationship of witnesses to the victim does not discredit their testimony.[26] Coming now to the criminal responsibility of appellants. In the present case, when Hermogenes Flora first fired his gun at Ireneo, but missed, and hit Emerita Roma and Flor Espinas instead, he became liable for Emerita‘s death and Flor‘s injuries. Hermogenes cannot escape culpability on the basis of aberratio ictus principle. Criminal liability is incurred by any person committing a felony, although the wrongful act be different from that which he intended. [27] We find that the death of Emerita and of Ireneo were attended by treachery. In order for treachery to exist, two conditions must concur namely: (1) the employment of means, methods or manner of execution which would ensure the offender‘s safety from any defense or retaliatory act on the part of the offended party; and (2) such means, method or manner of execution was deliberately or consciously chosen by the offender. [28] When Hermogenes Flora suddenly shot Emerita and Ireneo, both were helpless to defend themselves. Their deaths were murders, not simply homicides since the acts were qualified by treachery. Thus, we are compelled to conclude that appellant Hermogenes Flora is guilty beyond reasonable doubt of double murder for the deaths of Emerita Roma and Ireneo Gallarte, and guilty of attempted murder of Flor Espinas.

Is the other appellant, Edwin Flora, equally guilty as his brother, Hermogenes? For the murder of Ireneo Gallarte, was there conspiracy between appellants? For conspiracy to exist, it is not required that there be an agreement for an appreciable period prior to the occurrence. It is sufficient that at the time of the commission of the offense, the accused and co-accused had the same purpose and were united in execution.[29] Even if an accused did not fire a single shot but his conduct indicated cooperation with his co-accused, as when his armed presence unquestionably gave encouragement and a sense of security to the latter, his liability is that of a coconspirator.[30] To hold an accused guilty as a co-conspirator by reason of conspiracy, it must be shown that he had performed an overt act in pursuance or furtherance of the conspiracy.[31] Edwin‘s participation as the co-conspirator of Hermogenes was correctly appreciated by the trial court, viz.: "Edwin Flora demonstrated not mere passive presence at the scene of the crime. He stayed beside his brother Hermogenes, right behind the victims while the dance party drifted late into the night till the early hours of the morning the following day. All the while, he and his brother gazed ominously at Ireneo Gallarte, like hawks waiting for their prey. And then Edwin‘s flick of that lighted cigarette to the ground signaled Hermogenes to commence shooting at the hapless victims. If ever Edwin appeared acquiescent during the carnage, it was because no similar weapon was available for him. And he fled from the crime scene together with his brother but not after violently neutralizing any obstacle on their way. While getting away, Edwin grabbed Rosalie Roma and poked a knife at her neck when the latter hysterically shouted "si Bodoy, Si Bodoy," in allusion to Hermogenes Flora, whom she saw as the gunwielder. All told, Edwin, by his conduct, demonstrated unity of purpose and design with his brother Hermogenes in committing the crimes charged. He is thus liable as co-conspirator."[32] However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la Cerna, 21 SCRA 569, 570 (1967), we held: "x x x And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not even going to the aid of his father Rafael but was fleeing away when shot." To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte. He has no liability for the death of Emerita Roma nor for the injuries of Flor Espinas caused by his co-accused Hermogenes Flora. WHEREFORE, the decision of the trial court is hereby MODIFIED as follows: (1)....Appellants Hermogenes Flora and Edwin Flora are found GUILTY beyond reasonable doubt of the MURDER of Ireneo Gallarte and sentenced to each suffer the penalty ofreclusion perpetua and to pay jointly and severally the heirs of Ireneo Gallarte in the sum of P50,000.00 as death indemnity; P14,000.00 compensatory damages for the wake and burial; and P470,232.00 representing loss of income without any subsidiary imprisonment in case of insolvency. (2)....Hermogenes Flora is found GUILTY beyond reasonable doubt of the MURDER of Emerita Roma and the ATTEMPTED MURDER of Flor Espinas. For the MURDER of EMERITA ROMA, Hermogenes Flora is sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of Emerita Roma in the sum of P50,000.00 as death indemnity, P14,000.00 as expenses for wake and burial, and P619,800.00 for loss of earning capacity, without any subsidiary imprisonment in case of insolvency. For the ATTEMPTED MURDER of Flor Espinas, Hermogenes Flora is sentenced to suffer the penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional as minimum to ten (10) years of prision mayor, as maximum, and to pay P15,000.00 to Flor Espinas as indemnity for her injuries. (3)....Appellant Edwin Flora is ACQUITTED of the murder of Emerita Roma and the attempted murder of Flor Espinas. Costs against appellants. SO ORDERED. CASE DIGEST: PEOPLE V. HERMOGENES FLORA G.R. NO. 125909

The 2 accused (Hermogenes and Edwin) were convicted for the murder of Emerita and Ireneo and the attempted murder of Flor. The 2 were found to have conspired to kill Ireneo. However, during the commission of the crime, Emerita was also killed and Flor hit by a bullet.

HELD:

Co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Evidence only shows conspiracy to kill Ireneo and no one else. Hence, both can be convicted for the murder of Ireneo. However, only Hermogenes who fired at Emerita and Flor can be convicted for the murder of Emerita and Flor respectively.

PEOPLE VS MANANQUIL

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-35574 September 28, 1984 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VALENTINA MANANQUIL Y LAREDO, defendant-appellant. The Solicitor General for plaintiff-appellee. Herminio Sugay for defendant-appellant.

CUEVAS, J.: In an amended Information 1 filed before the then Court of First Instance of Rizal, VALENTINA MANANQUIL y LAREDO was accused of PARRICIDE allegedly committed as follows: That on or about the 6th day of March, 1965, in Pasay City, Philippines, and within the jurisdiction of this Hon. Court, the abovenamed accused, did then and there wilfully, unlawfully and feloniously, with evident premeditation, that is, having conceived and deliberated to kill her husband, Elias Day y Pablo, with whom she was united in lawful wedlock, enter (sic) the NAWASA building situated at Pasay City, where said Elias Day y Pablo was working as a security guard; and the said accused, having in her possession a bottle containing gasoline suddenly and without warning, poured the contents on the person of her husband, Elias Day y Pablo, ignited the gasoline, as a result of which, said Elias Day y Pablo suffered burns and injuries which subsequently caused his death. Contrary to law 2 Tried after pleading "NOT GUILTY" upon arraignment, accused was convicted and thereafter sentenced toreclusion perpetua to indemnify the heirs of the deceased in the amount of P12,000.00; and to pay costs. From the aforesaid judgment, she ventilated an appeal to the then Court of Appeals (which referred the appeal to us considering that the penalty imposed was reclusion perpetua, assailing her aforesaid conviction and contending that the trial court erred: 1) in convicting her solely on the basis of the alleged extrajudicial confession; 2) in finding that Pneumonia was a complication of the burns sustained by the victim; 3) in not finding her not to have cause the death of the deceased; and 4) in not acquitting her at least on ground of reasonable doubt. The prosecution's version of the incident as summarized in the People's Brief is as follows: On March 6, 1965, at about 11:00 o'clock in the evening, appellant went to the NAWASA Building at Pasay City where her husband was then working as a security guard. She had just purchased ten (10) centavo worth of gasoline from the Esso Gasoline Station at Taft Avenue which she placed in a coffee bottle (t.s.n., p. 13, January 13, 1969). She was angry of her husband, Elias Day y Pablo, because the latter had burned her clothing, was maintaining a mistress and had been taking all the food from their house. Upon reaching the NAWASA Building, she knocked at the door. Immediately, after the door was opened, Elias Day shouted at the appellant and castigated her saying, "PUTA BUGUIAN LAKAW GALIGAON" (t.s.n., p. 14, Id). The appellant tired of hearing the victim, then got the bottle of gasoline and poured the contents thereof on the face of the victim (t.s.n., p. 14, Id). Then, she got a matchbox and set the polo shirt of the victim a flame. (Exhs. "A" and "A-1", p. 197, Rec.) The appellant was investigated by elements of the Pasay City Police to whom she gave a written statement (Exh. "A", p. 197, Rec.) where she admitted having burned the victim. Upon the other hand, the victim was taken first to the Philippine General Hospital and then to the Trinity General Hospital at Sta. Ana, Manila, when he died on March 10, 1965. (Exh. "C", p. 208, rec.) due to pneumonia, lobar bilateral Burns 2 secondary. 3 Appellant's story on the other hand runs, thus: It was before 10:00 o'clock p.m. when appellant returned from Olongapo City. She fed her grandson and put him to bed. After filing the tank with water, she remembered that the next day was a Sunday and she had to go to church. Her shoes were dirty but there was no gasoline with

which to clean them. Taking with her an empty bottle of Hemo, she left for a nearby gasoline station and bought ten centavos worth of gasoline. Then she remembered that her husband needed gasoline for his lighter so she dropped by his place of work. (p. 13, Ibid.) Appellant saw her husband inside a bonding of the NAWASA standing by the window. As the iron grille was open, she entered and knocked at the wooden door. Elias opened the door, but when he saw his wife he shouted at her. Appellant said that she had brought the gasoline which he needed for his lighter, but Elias, who was under the influence of liquor, cursed her thus: "PUTA BUGUIAN LAKAW GALIGAON". Elias continued shouting and cursing even as appellant told him that she had come just to bring the gasoline that he wanted. Appellant trembled and became dizzy. She was beside herself and did not know that she was sprinkling the gasoline on her husband's face. She was tired and dizzy and had to sit down for a while. Then she remembered her grandson who was alone in the house so she went home leaving her husband who was walking to and fro and not paying attention to her. (pp. 13-14, Ibid., p. 2, March 20, 1969) She went to bed but could not sleep. She went back to the NAWASA compound to apologize to her husband. Upon reaching the NAWASA, however, she found that police officers were present. Her husband was walking all around still fuming mad, and when he saw her he chased her. A policeman pulled appellant aside and asked if she was the wife of Elias. When she replied in the affirmative, the police officer accused her of burning her husband. She denied the accusation. But the police took her to the headquarters, and prepared a written statement, Exhibits A, A-1. Appellant was made to sign said statement upon a promise that she would be released if she signed it. Although she did not know the contents, she signed it because of the promise. (pp. 14-16. Id.; p. 5, March 20,1969) 4 Appellant's assigned errors boil down to two (2) main issues: (1) whether or not appellant's extrajudicial confession was voluntarily given; and (2) whether or not the burns sustained by the victim contributed to cause pneumonia which was the cause of the victim's death. Right after the burning incident, appellant was picked up by the police operatives of Pasay City. She was thereafter investigated by Sgt. Leopoldo Garcia of the Pasay City Police who took her statement in Tagalog and in Question and Answer form which was reduced into writing. 5 After Sgt. Garcia was through taking her statement, she was brought to Fiscal Paredes who asked her questions regarding the said statement and its execution and before whom said statement was subscribed and sworn to by her. In that investigation, appellant categorically admitted having thrown gasoline at her husband and thereafter set him aflame as evidenced by this pertinent portion of her statementT Ano ang nangyari at iyong binuksan ng gasolina ang iyong asawa na si Elias Day? S Dahil may sala siya, at sinunog niya ang aking mga damit, at may babae pa, at saka lahat ng aming pagkain sa bahay ay hinahakot. T Ng dahil dito sa mga binanggit mong ito ay ano ang ginawa mo sa iyong asawa? S Ako po ay nagdilim ang aking isipan at ang ginawa ko ay naisip kong buhusan ng gasolina, kaya ang aking ginawa ay bumili ako ng halagang 10 sentimos sa Esso Gasoline Station sa Tall Avenue at inilagay ko sa isang boti. T Pagkatapos na ikaw ay makabili ng gasolina sa station ng Esso sa Taft Avenue dito sa Pasay City, ay ano ang ginawa mo? S Ako po ay nagpunta sa kanya na pinaggoguardiahan sa Nawasa at pagdating ko nuon ay kumatok ako sa pintuan ng Nawasa, at nang marinig niya ang aking katok sa pinto ay binuksan niya ang pintuan, at pagkabukas ng pintuan ay nakita niya ako, at nagalit siya at ako ay minura ng puta putan Ina mo, lalakad ka ng gabi, at namumuta raw ako, at pagkatapos na ako ay mamura ay hinahabol pa ako ng suntok, kayat ang ginawa ko po kinuha ko ang aking dalang bote na may gasolina at aking ibinuhos sa kanyang katawan at aking kinuha ang posporo at aking sinindihang at hangang magliyab ang suot niyang polo shirt, na may guhit na itim at puti. T Alam mo ba na kung ano ang iyong ginawa sa iyong asawa kanginang humigit kumulang na mag-iika alas 11:00 ng gabi Marzo 6, 1965? S Opo, aking sinunog ang aking asawa. (Exhs. A & A-1 Emphasis supplied) She would now like her aforesaid extrajudicial confession discredited by asserting that she did not understand its contents because she is not a Tagala aside from having reached only the primary grades; and furthermore, that said statement was signed by her merely upon the promise of the policemen that she will later be released. We find appellant's aforesaid assertions a mere pretense too flimsy to be accepted as true. For the truth is that appellant knew and understood Tagalog despite her not being a Tagala, having stayed in Manila since 1951, continuously up to the time of the burning incident in question for which she was investigated. During this period of almost fourteen years, she was in daily association with Tagalogs communicating with them in Pilipino. This is clear from her admission on cross-examination which runs thusQ But you can understand Tagalog because of the length of time that you litem been living here in Manila? A Yes.

Q And as a matter of fact, when you buy something from the store, you speak Tagalog? A Yes. Q And when you ride in a jeep or bus, you speak Tagalog? A Yes. Q And you were well understood by these Tagalog people? A Yes. Q And as a matter of fact, you can understand Tagalog? A Yes, Q And you can also read Tagalog? A Yes. Q You can read? A Yes, but I do not litem interest to read. TSN, March 29, 1969, pp. 11-12). All through shout the entire investigation and even at the time appellant A as before Fiscal Paredes, before whom she subscribed and swore to the truth of an what appeared in her statement, 6 no denunciation of any sort was made nor levelled by her against the police investigators. Neither was there any complaint aired by her to the effect that she merely affixed her signatures thereto because of the promise by the police that she will be released later. We therefore find her aforesaid claim highly incredible and a mere concoction. For why will the police still resort to such trickery when the very sworn statement given by her proved by its contents that appellant was indeed very cooperative. In fact, almost all the recitals and narrations appearing in the said statement were practically repeated by her on the witness stand thus authenticating the truth and veracity of her declarations contained therein. Moreover, We find said statement replete with details which could not litem been possibly supplied by the police investigators who litem no previous knowledge of, nor acquaintance with her and the victim, especially with respect to the circumstances and incidents which preceded the fatal incident that brought about the death of the latter. We therefore find no error in the trial court's pronouncement that appellant's sworn statement was voluntarily given by her; that she fully understood its contents; and that she willingly affixed her signatures thereto. Well settled is the rule that extrajudicial confession may be regarded as conclusive proof of guilt when taken without maltreatment or intimidation 7 and may serve as a basis of the declarant's conviction. 8 It is presumed to be voluntary until the contrary is proven. The burden of proof is upon the person who gave the confession. 9 That presumption has not been overcome in the instant case. Indeed the trial court could not be faulted for relying heavily on accused-appellant's sworn statement in assessing her guhit since it was given shortly after the incident took place. By then, she had yet no time to concoct any fabrication favorable to her. Shock by the aftermath consequences of her criminal design she must litem been motivated by no other purpose except to admit the undeniable. On the other hand, when she took the witness stand, disclaiming any responsibility for the burning of her husband, it was already January 13, 1969 . . . more than five years after the incident and decidedly after she had the benefit of too many consultations. That appellant has murder in her heart and meant to do harm to her husband when she went to the latter's place of work on that fatal night and intended an the consequences of her nefarious act finds clearer manifestation and added support in her total indifference and seemingly unperturbed concern over the fate that had befallen the victim . . . her husband . . . especially at times when he needed her most. Being the wife, she must be the closest to him and the hardest hit by the mishap if she has not authored the same nor voluntarily participated therein. She was then reasonably expected to come to his succor and alleviate him from his sufferings. And yet, the records do not show her having seen her husband even once while the latter lay seriously ill at the hospital hovering between life and death. Neither did she attend his funeral nor was she ever present during the wake while the victim's remains lay in state. That she was under detention does not excuse nor justify those glaring and significant omissions. For she could litem asked the court's permission for any of the enumerated undertakings which we believe would not litem been denied. But she did not even attempt. Indeed, the more we scrutinize appellant's alibi and explanation, we become more convinced of the falsity and incredibility of her assertions. For instance, her claim that her purpose in buying gasoline at so an unholy hour of the night, past ten o clock in the evening, solely for the purpose of cleaning her shoes which she would wear in going to church the following Sunday, hardly recommend acceptance. That she dropped at her husband's place of work also at the middle of the night for no other purpose except to deliver to him gasoline for his cigarette lighter, is likewise too taxing upon one's credulity . . . more so if we litem to consider the previous spat she had with the deceased in the morning of that fatal day. In her vain attempt to exculpate herself, appellant would like Us to believe that her husband died of pneumonia because the latter drank liquor as shown by the toxicology report indicating presence of alcohol in the victim's body. Hence, assuming she set her husband on fire, she is not criminally liable for her husband's death. We are not persuaded by appellant's aforesaid ratiocination

The claim that the victim drank liquor while confined in the hospital would not suffice to exculpate the appellant. For as testified by Dr. Reyes, pneumonia could not be caused by taking alcohol. In fact, alcohol, according to him, unless taken in excessive dosage so as to produce an almost comatose condition would not cause suffocation nor effect a diminution of the oxygen content of the body. 10 In fine, as correctly pointed out by the Hon. Solicitor General, the victim's taking of liquor was not an efficient supervening cause of his death which took place on March 10, 1965, just four days after the burning. The cause of death as shown by the necropsy report is pneumonia, lobar bilateral. Burns 2' secondary. There is no question that the burns sustained by the victim as shown by The post-mortem findings immunity about 62% of the victim's entire body. The evidence shows that pneumonia was a mere complication of the burns sustained. While accepting pneumonia as the immediate cause of death, the court a quo held on to state that this could not litem resulted had not the victim suffered from second degree burns. It concluded, and rightly so, that with pneumonia having developed, the burns became as to the cause of death, merely contributory. We agree. Appellant's case falls squarely under Art, 4, Par. 1 of the Revised Penal Code which provides: Art. 4. Criminal Liability. — Criminal liability shall be incurred. 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. the essential requisites of which are: (a) that an intentional felony has been committed; and (b) that the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender. 11 The reason for the rule as spelled out in the earlier cases of PP vs. Moldes, 61 Phil. 1, 3 & 4; and PP vs. Quianzon, 62 Phil. 162, citing 13 RCL 748, 751 is as follows — One who inflicts injury on another is deemed guilty of homicide if the injury contributes immediately or immediately to the death of such other. The fact that other causes contribute to the death does not relieve the actor of responsibility. He would still be liable "even if the deceased might litem recovered if he had taken proper care of himself, or submitted to surgical operation, or that unskilled or improper treatment aggravated the wound and contributed to the death, or that death was men." caused by a surgical operation rendered necessary by the condition of the wound. The principle on which this rule is founded is one of universal application. It lies at the foundation of criminal jurisprudence. It is that every person is held to contemplate and be responsible for the natural consequences of his own acts. If a person inflicts a wound with a deadly weapon in a manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Neglect of the wound or its unskilled and improper treatment which are themselves consequences of the criminal act, must in law be deemed to litem been among those which are in contemplation of the guilty party and for which he must be responsible The rule has its foundation on a wise and practical policy. A different doctrine would tend to give immunity to crime and to take away from human life a salutary and essential safeguard. Amidst the conflicting theories of medical men and the uncertainties attendant upon the treatment of bodily ailments and injuries it would be easy in many cases of homicide to raise a doubt as to the immediate cause of death, and thereby open a wide door by which persons guilty of the highest crime might escape conviction and punishment. In convicting the accused, the trial court imposed upon her the obligation to indemnify the heirs of the deceased only in the amount of P12,000.00. That should now be increased to P30,000.00. WHEREFORE, except as thus modified, the judgment appealed from is hereby AFFIRMED with costs against appellant. It appearing however that appellant Valentina Mananquil is now 71 years of age, this Court recommends her for executive clemency. For the purpose, let His Excellency, President Ferdinand E. Marcos, be furnished with a copy of this decision thru the Hon. Minister of Justice. SO ORDERED. CASE DIGEST: FACTS: VALENTINA MANANQUIL y LAREDO was accused of PARRICIDE allegedly committed as follows: On March 6, 1965, at about 11:00 o'clock in the evening, appellant went to the NAWASA Building at Pasay City where her husband was then working as a security guard. She had just purchased ten (10) centavo worth of gasoline from the Esso Gasoline Station at Taft Avenue which she placed in a coffee bottle. She was angry of her husband, Elias Day y Pablo, because the latter had burned her clothing, was maintaining a mistress and had been taking all the food from their house. Upon reaching the NAWASA Building, she knocked at the door. Immediately, after the door was opened, Elias Day shouted at the appellant and castigated her saying, "PUTA BUGUIAN LAKAW GALIGAON" The appellant tired of hearing the victim, then got the bottle of gasoline and poured the contents thereof on the face of the victim (t.s.n., p. 14, Id). Then, she got a matchbox and set the polo shirt of the victim a flame. The appellant was investigated by elements of the Pasay City Police to whom she gave a written statement where she admitted having burned the victim. Upon the other hand, the victim was taken first to the Philippine General Hospital and then to the Trinity General Hospital at Sta. Ana, Manila, when he died on March 10, 1965. due to pneumonia, lobar bilateral Burns 2 secondary. 3

ISSUES: (1) whether or not appellant's extrajudicial confession was voluntarily given; (2) whether or not the burns sustained by the victim contributed to cause pneumonia which was the cause of the victim's death.

HELD: 1) YES. No denunciation of any sort was made nor levelled by her against the police investigators. Neither was there any complaint aired by her to the effect that she merely affixed her signatures thereto because of the promise by the police that she will be released later. Furthermore almost all the recitals and narrations appearing in the said statement were practically repeated by her on the witness stand thus authenticating the truth and veracity of her declarations contained therein

2) YES. The cause of death as shown by the necropsy report is pneumonia, lobar bilateral. Burns 2' secondary. There is no question that the burns sustained by the victim as shown by The post-mortem findings immunity about 62% of the victim's entire body. The evidence shows that pneumonia was a mere complication of the burns sustained. While accepting pneumonia as the immediate cause of death, the court a quo held on to state that this could not litem resulted had not the victim suffered from second degree burns. It concluded, and rightly so, that with pneumonia having developed, the burns became as to the cause of death, merely contributory Appellant's case falls squarely under Art, 4, Par. 1 of the Revised Penal Code which provides: Art. 4. Criminal Liability. Criminal liability shall be incurred. 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. The essential requisites of which are: (a) that an intentional felony has been committed; and (b) that the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender PEOPLE VS PINTO & BUENAFLOR

REPUBLIC OF THE PHILIPPINES SUPREME COURT Manila THIRD DIVISION G.R. No. 39519 November 21, 1991 PEOPLE OF THE PHILIPPINES, petitioner-appellee vs. DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-appellants. The Solicitor General for petitioner-appellee. K.V. Faylona & Associates for defendants-appellants.

FERNAN, C.J.:p As an aftermath of the mission of the Legazpi City Police Department to serve on Christmas day in 1970 a search warrant on Francisco Bello who was allegedly training a private army, patrolmen Daniel Pinto, Jr. and Narciso Buenaflor, Jr. were found guilty beyond reasonable doubt by the then Circuit Criminal Court in said city, of killing not only Bello but also 9-year-old Richard Tiongson and Rosalio Andes and seriously wounding Maria Theresa Tiongson. The dispositive portion of the decision of June 13, 1974. 1 reads: WHEREFORE, the Court finds the accused Narciso Buenaflor, Jr. and Daniel Pinto, Jr. GUILTY beyond reasonable doubt of crime of: (a) MURDER in CCC-X-288-Albay, and hereby sentences each of them to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heir of Rosalie Andes in the amount of Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs; (b) MURDER in CCC-X-289-Albay, and hereby sentences each of them to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heirs of Francisco Bello in the amount of Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs; (c) MURDER in CCC-X-298-Legazpi City, and hereby sentences each of them to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heirs of Richard Tiongson in the amount of Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs; (d) FRUSTRATED MURDER in CCC-X-299 Legazpi City, and hereby sentences each of them to imprisonment of from Six (6) Years and One (1) Day of Prision Mayor as Minimum, to Twelve (12) Years and One (1) Day of Reclusion Temporal as Maximum; to indemnify the victim, Maria Theresa Tiongson, in the amount of Eight Thousand (P8,000.00) Pesos, jointly and severally; and to pay the costs. In addition to the foregoing the accused are sentenced to suffer perpetual disqualification from public office. According to the prosecution, on December 25, 1970, the Legazpi City Police secured from the City Court of Legazpi a warrant for the search of the house and premises of Francisco Bello in Mariawa, Legazpi City on the ground that the police had probable cause to believe that Bello illegally possessed a garand rifle, a thompson submachinegun and two automatic pistols. 2 The police had earlier undertaken a surveillance of Bello on the basis of information it had received that he was conducting an "obstacle course" or training men for combat since October, 1970. 3 Upon receipt of the search warrant, the Chief of Police, Dr. Solomon Adornado, 4 called his officers to a "confidential conference" at the residence of Mayor Gregorio Imperial. Present at the said conference were the mayor, his secretary, and the officers of the patrol division, secret service and the administration of the city police. The Chief of Police was assisted by Major Alfredo Molo, head of the intelligence division of the city police, in briefing the group on how to serve the search warrant and to arrest Bello as the latter had been identified as the one who shot Salustiano Botin the night before. At the time of the briefing, no warrant of arrest had yet been issued against Bello. 5 The policemen were divided into three teams and around five members of the Philippine Constabulary (PC) who were also present were assigned to the different teams. 6 Team 3 was placed under the charge of Sgt. Salvador de la Paz with a policeman named Luna and appellants Buenaflor and Pinto as members. Wilfredo Romero was the PC member assigned to the team. 7 Except for Romero and Pinto who were each armed with a carbine, the policemen of Team 3 each carried a .38 caliber pistol. 8 Loaded in four vehicles, the three teams proceeded from the residence of the Mayor to barrio Homapon arriving there at around seven o'clock in the evening. The four vehicles met at the junction of Homapon and the road to Mariawa. They had decided to ride on the way to Mariawa when one of the jeeps bogged down because of the muddy road. Hence, the three teams had to walk in single file on the right side of the road with the teams had to walk in single file on the right side of the road with the teams maintaining a distance o around ten meters between them. 9 Suddenly, Romero noticed the members of his team running. He ran with them and then he heard someone shout, "Pondo!" (stop). The shout was followed by a shot and then a burst of gunfire. The team had by then deployed to the right side of the road. When Romero checked the men by shouting the agreed password of "bayawas" for which the person challenged answered "santol", 10 he found that Buenaflor was 5 meters in front of him "at the bank of the road", Pinto was two meters to the right of Buenaflor, Sgt. de la Paz was two meters to his (Romero's) right, Luna who was holding a walkie-talkie was to his left and another policeman was in front of Luna. 11 When Romero heard the gunburst, he saw "flashes of fire" "just in front" of him or from the place where Buenaflor was. 12 The area where the team deployed was lower in elevation than the road but Romero heard the rumbling of a jeep going towards the direction of Homapon when he heard the burst of gunfire and saw the flashes of fire from the direction of Buenaflor. 13 On the jeep which passed by the deployed policemen were Fr. Felix Cappellan, Mrs. Zenaida Stilianopolous Tiongson, her six children and the driver. They had just come from a lechonada party in the hacienda in Mariawa of Mrs. Purificacion Napal Anduiza, the mother of Francisco Bello. Fr. Capellan had celebrated mass to commemorate the death anniversary of Mrs. Anduiza's father. When Fr. Capellan decided to go back to his parish, the Anduiza's offered their jeep for his transportation. 14 Seated on the front seat of the "McArthur type" jeep which had only a canvass top but no cover on the sides and back, 15 were the driver, Mrs. Tiongson with a child on her lap and Fr. Capellan. 16 Richard Tiongson was seated on the steel seat behind the driver while his sister Maria Theresa was beside him. 17 The three other children were also seated at the back.

After crossing the creek on their way to Homapon and as the driver "changed to high gear with a dual", 18 Mrs. Tiongson saw blinking lights some 300 yards ahead. 19 Fearing that there might be "people with bad intentions" or hold-uppers, Fr. Capellan told the driver to go faster. 20 Then Fr. Capellan heard one shot and after a few seconds and around 50 meters ahead, there was rapid firing with some of the bullets hitting the jeep. 21 According to Mrs. Tiongson, the widow of Col. Angel Tiongson of the PC, the rapid firing sounded "automatic". 22 The firing came from the left rear side of the jeep. 23 Before they were fired upon, Maria Theresa saw a man lying flat on his stomach while holding a gun on the left side of the road just ahead of the jeep. 24 Through the light of the jeep, Maria Theresa noticed that the man was wearing a jacket and a hat and he was on the shoulder of the road. 25 After passing the man, the rapid firing ensued. Richard said "ugh" and fell on the floor of the jeep. Maria Theresa was about to hold Richard when she felt herself hit at the buttocks. Then they all screamed. 26 The jeep continued its fast uphill climb until it reached a level area and almost fell into a ditch were it not for a clump of banana plants. The jeep came to a full stop. Fr. Capellan saw three men with flashlights but he could not distinguish their faces as it was dark and their flashlights were focused on the ground. 27 Mrs. Tiongson saw a PC jeep and some cars and, believing that one of the cars was that of the Mayor, she called Tia Citang, the mother of the mayor, at the same time identifying herself.28 She must have managed to take Richard from the jeep and was cuddling him on the ground near the left rear end of the jeep when she requested Fr. Capellan to administer extreme unction on Richard. As Fr. Capellan had no holy oil, he gave the boy absolution. 29 Even after Mrs. Tiongson had identified herself as the widow of Col. Tiongson to the men around, nobody listened to her appeal for help. When she approached Chief of Police Adornado, she hit him and asked him why they shot her and her companions. The Chief of Police replied that the shooting was no longer his fault because Mrs. Tiongson and her companions did not stop when told to do so. She requested the Chief of Police for a car in which to take Richard to the hospital or for a driver and even for a walkie-talkie so she could talk to Mayor Imperial but the Chief of Police did not heed her pleas. 30 (TSN, February 9, 1972, pp. 17-22). A few minutes later, a jeep driven by Fernando Anduiza arrived. Mrs. Tiongson and her children boarded the jeep. At the intersection of the road to Legazpi City proper and the road to Mariawa, the area was brightly lighted and armed men ordered them to put their hands up. They were told to alight from the jeep to be searched but Mrs. Tiongson begged the lieutenant manning the area to let them pass so they could bring her two children to the hospital. 31 Richard and Maria Theresa were brought to the Sacred Heart Clinic in Legazpi City. Thirteen-year-old Maria Theresa was treated for a gunshot wound at the "right upper quadrant of the right buttocks." 32 Her pelvis and abdomen were x-rayed. One of the x-ray plates 33 revealed an oval spot indicating a foreign body in Maria Theresa's pelvis. The attending physician decided not to extract the foreign body as Maria Theresa was not a "very good surgical risk".34 The hospital charged P282.90 for Theresa's hospitalization. 35 She was later brought by an army plane to the PC Station Hospital in Camp Crame, Quezon City for further treatment and hospitalization 36 but the foreign body was never removed from her pelvic area. Richard sustained a gunshot wound at the back about the level of the 5th lumbar vertebrae. The bullet travelled obliquely to the left kidney, the lesser sac, the liver and the right auricle.37 Richard was operated at the hospital but he died at 8:45 the following morning due to massive hemorrhage caused by the gunshot wound. 38 When he was autopsied, a lead slug was found embedded in his heart.39 His mother paid P862.35 40 for his hospitalization and was charged P200 by the church. Mayor Imperial paid P500 to Funeraria Oro for Richard's burial.41 Meanwhile, according to Chief of Police Adornado, after the shooting incident involving the Tiongsons, the police pursued their mission to serve the search warrant on Bello. When they reached Bello's residence in Mariawa, they were met by a "volley of fire." Suddenly, the house was lighted and a certain Escober met him. Although Bello and his parents, Mr. and Mrs. Anduiza, were not around, the police searched the area and found a Japanese Springfield rifle, ammunition of a garand rifle, ammunition of a carbine, live ammunition for a .38 caliber pistol and 380 bullets for an automatic pistol. 42 Thereafter, the Chief of Police declared the search terminated and the entire searching party left for headquarters. 43 The following day, he issued Special Order No. 24 which states: Decembe r 26, 1970 To All Concerned: The following men mentioned below are hereby assigned at Homapon until their mission is accomplished, effective as of today, December 26, 1970: 1 Sgt. Salvador de la Paz, In-charge 2. Pfc. Carlos Barbin, member 3. Pat. Eduardo Arcinue, member 4. Pat. Juan Luna, member 5. Pat. Daniel Pinto, member 6. Pat. Celedonio Abordo, member 7. Pat. Narciso Buenaflor, member

Report progress of mission any time of day through the radio system. For strict compliance. (Sgd.) SOLOMON B. ADORNADO Chief of Police Copy furnished: The Honorable City Mayor, The Patrol Command, LCPD, the OIC and file .44 The mission was to keep peace and order in the specified place and to determine the whereabouts of Bello.45 It was not necessary to specify the mission in the order itself because the Chief of Police "had a close understanding with the squad that went to Homapon". 46For a "convenient tactical deployment," Sgt. De la Paz further divided Team 3 into three groups with patrolmen Buenaflor and Pinto composing Group II.47 At noontime of December 26, 1970, Francisco Bello, more popularly known as Paquito, arrived at the residence of Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was with Inocencia's brother, Francisco Andes, Francisco's son Ananias, and Leoncio Mostoles. Rosalio, another son of Francisco, also arrived with the group. 48Bello requested Inocencia and her husband that he and his group be allowed to spend the night in Inocencia's house. 49 Inocencia woke up at around 5:00 o'clock in the morning of December 27, 1970. At the sala, on her way from her room to the kitchen, she saw Bello sleeping alone. From the kitchen, Inocencia went to the balcony through the sala. On her way back to the kitchen, she noticed that Bello, who was wearing a red shirt and an underwear, had awakened. Bello opened the window, spat out and went to the balcony. He reentered the sala and saying that it was cold, Bello put on his clothes and pants. He also wore his jacket. He went back to the balcony and asked for water. Inocencia's husband gave Bello a glass of water. After gurgling, Bello placed the glass on the window sill and ask Inocencia's husband for a cup of coffee.50 Inocencia's husband was about to offer Bello a cup of coffee when she heard a successive burst of gunfire. Bello, who was the balcony facing the copra kiln ("agonan") with his back towards the pili tree, gradually fell to the floor with his hands above his head. Then there was another burst of gunfire. From the kitchen, Inocencia rushed to the door from where she saw a man holding a long firearm, whom she later identified as Pinto, near the pili tree which was around eight meters from where Bello was, and another man, also holding a gun, crouching near the stairs. 51 Inocencia, with her two-year-old child in her arms, 52 was about to rush to Bello when her husband pulled her. Just then a man, whom Inocencia identified as Buenaflor, came up the house, pointed a gun at Inocencia and her husband and told them to lay flat on the floor. The man asked them where the gun was. Inocencia told him that there was no gun in the house but then, when she looked around, she saw a long firearm with its muzzle pointed upward leaning against the wall near the door around two meters from where Bello laid flat on his back. Bello himself had a gun but it was in its holster tucked on his waist. 53 It was Buenaflor who took both the long firearm and the gun in Bello's holster.54 When Francisco Andes went up the house, he told Inocencia that Rosalio was dead. 55 Inocencia went near the pili tree where Rosalio's body was, knelt down and asked the man with a long firearm why he killed Rosalio. The man answered that Rosalio fought back. However, Inocencia did not notice any weapon near Rosalio's body. 56 Bello's hands and feet were tied together and a bamboo pole was inserted between them so that two men, one of them being Francisco Andes, could carry the cadaver. 57 Bello died because of "shock secondary to massive hemorrhage due to multiple gunshot wounds". 58 A former pilot and 28 years old at the time of his death, Bello sustained a gunshot wound at the left temple, an inch above the highest point of the pinna of the left ear. The bullet which entered his head through the squamous temporal bone travelled towards the occipital region down to the floor of the left middle cranial fosa until it reached the base of the tongue. Bello had three gunshot wounds on his chest. One bullet entered the superior part of the right scapular area about the level of the third thoracic vertebrae. The bullet travelled to the right inna in a slightly upward direction making its exit at the lateral part of the right supraclavicular fossa above the clavicle. The second gunshot wound was at the left side interscapular area. The bullet travelled upwards and to the right fracturing the 7th rib, entered the lower lobe of the left lung, punctured the pulmonary conus, went through the junction of the right auricular appendage and the right auricle, the anteromedial side of the pericardium, grazed the medial surface of the middle lobe of the right lung and exited at the right side of the chest. The third gunshot wound was below the right nipple. The bullet went to the chest cavity, the lower lobe of the right lung, the dome of the diaphragm, the right lobe of the liver, the 8th thoracic vertebrae and exited at the left of the midline at the inferior interscapular area. 59 While Bellos corpse was being autopsied, a slug fell from his jacket. A bullet jacket and lead fragments were found at the base of his skull and a slug was extracted from the floor of his mouth. 60 Rosalio Andes, 23 years old, also died of shock due to multiple gunshot wounds. A bullet entered his right temporal area, macerated the brain, fractured both parietal bones and exited at the left parietal bone. Another bullet entered the left scapular area below the level of the 6th rib, travelled to the dome of the left diaphragm, the left lobe of the liver, the pancreas, the small intestines, and the perineum below the ramus of the right pubis. The slug was found at the gluteoperineal junction about 2 inches below the tip of the coccys and 2 1/2 inches above the gluteal line. A third bullet entered the left knee and exited at the medial side of the leg. 61 The slugs and parts of bullets which were extracted from the bodies of the victims were turned over to the National Bureau of Investigation (NBI) on December 29, 1970 by Fiscal Aquilino Bonto for safekeeping purposes. 62 The empty shells and slugs which both the PC and the Legazpi City police found in Talahib were also turned over to the NBI 63 in the same manner that the four empty carbine shells 64 found by the PC near the coconut tree a meter from the shoulder of the road to Mariawa were also turned over to the NBI. 65Also submitted to the NBI for ballistic examination were twelve Smith & Wesson caliber .38 revolvers, two Smith & Wesson "paltik" caliber .22, four Tell caliber revolvers, one Bosque automatic pistol caliber .380, four carbine Inland rifles caliber .30, three US Springfield rifles caliber.30, one Thompson submachine gun caliber .45 and one Colt automatic pistol caliber.45. 66

Defendants Pinto and Buenaflor both denied having fired at the jeep bearing the Tiongson family.67 Pinto, who admitted carrying a caliber .30 carbine during the incident, 68 testified that the shooting occurred because the Tiongsons' jeep "was going towards" them.69 According to Pinto, when they reached Mariawa, it was he who fired one shot in the air. 70 After the search had been conducted in Bello's premises, Team 3 was instrued by a "superior officer" "to remain and maintain peace and order in (the) vicinity including Mariawa".71 While he and Buenaflor were patrolling the area, at around midnight, they "chanced upon a house" wherein Bello and his group were staying. They captured four of Bello's bodyguards and tied them to a pili tree with the torn shirt of one of the captives.72 At daybreak, Pinto saw Bello smoking at the porch. Buenaflor, who was behind him, called Bello. Then a single shot coming from the house rang out. It was answered by a burst of fire which Pinto "presumed" came from Buenaflor. By reflex action, Pinto transferred from the pili tree to a nearby coconut tree. But before he reached the coconut tree, he saw a man with a bolo in his hand running towards him. As the man was menacingly near him, Pinto shot him. 73 After a lull in the firing, he went up the house to look for Bello's other companions. He saw the body of Bello on the porch and "near" it was a garand which he took. He also got Bello's short firearm "from a holster." He turned over both the garand and the short firearm to Buenaflor. One of the captured persons kicked Bello's body saying that if not for Bello, his son would not have been killed. Thereafter, the two dead persons were carried by the captured bodyguards to Mariawa. 74 In Mariawa, Pinto contacted (through the radio) police outpost No. 5 in Banquerohan and two jeeps arrived. When they reached the junction in Homapon, Major Molo, who was with Fiscal Benito Se, told Pinto to go back with him to Talahib. Although Pinto warned Major Molo that it would be dangerous to go back because one of Bello's men had escaped, they nevertheless proceeded to Talahib. With three other policemen, they arrived there between eight and nine in the morning where they were instructed to "look for evidence specifically . . . for a thompson." He found in the porch two shells and the others found a hat and a flashlight. Thereafter, they returned to Mariawa and later, to Legazpi City proper. 75 On cross-examination, Pinto stated that he did not know that they found Bello in an area which was beyond the jurisdiction of Legazpi City. He admitted that while they were instructed patrol the area, they were also told to effect the arrest of Bello even if no complaint had been lodged against him. 76 According to Pinto, of the fifteen bullets in the magazine of his carbine, only two remained. He fired "most" of the thirteen shots during the "Bello incident". 77 Pinto shot the man later identified as Rosalio Andes when he was at a distance of around three meters. Rosalio was "face to face" with him when Pinto shot him. As Rosalio did not fall from the first shot, Pinto continued shooting him. 78 When he went up the porch he saw the garand "lying on the floor" but the gun tucked on Bello's waist was still in its holster. 79 On the Tiongson incident, Pinto asserted that he did not fire his carbine. 80 When he saw the headlight of the Tiongsons' jeep, he also saw a flashlight being waved. A little later, he heard a shout ordering the jeep to stop. Then he heard one shot and immediately after, the volley of fire as the jeep was going towards his direction. As it passed by him, he heard the jeep's passengers shriek. 81 For his part, Buenaflor declared that during the mission to serve the search warrant on Bello, he carried the ".38 caliber revolver Tel." (sic) which had been issued to him by the Legazpi City Police Department. He did not fire his gun at the Tiongsons and, "as a matter of fact," he surrendered his firearm for ballistic examination. 82 In the afternoon of December 26, however, Major Molo issued him a Thompson submachinegun. 83 While patrolling Homapon, he and Pinto "chanced upon" some persons who told them that they could guide them to where Bello was. At the place which they later found to be Talahib, they went near a pili tree from where they saw a house "below." Then he saw a man who turned out to be Mostoles. Buenaflor apprehended Mostoles because the latter was Bello's bodyguard and he had a .22 caliber firearm with him. He came by another man with a bolo, named "Banteque" and apprehended him also. Then, from behind the pili tree, Pinto appeared with yet another man. They waited for a while until another man, who turned out to be Francisco Andes, came within four meters of him. Buenaflor pointed his submachinegun at him so Andes approached him. Buenaflor confiscated Andes' .22 caliber firearm. 84 From the group, Buenaflor learned that Bello provided them with firearms and that Bello himself had a pistol tucked in his holster as well as a garand. He and Pinto then tied the men to the pili tree. Later, he saw a person in the balcony of the house below and Buenaflor shouted twice: "Paquito, mag-surrender ka!" Then Buenaflor heard a "a shot coming from the direction of the balcony followed by successive shots." He sought cover behind the pili tree and, while in a crouching position, fired his submachinegun towards the balcony. Pinto was then behind him. As Pinto shifted his position while firing his carbine, Buenaflor went down to the "elevated portion going down to the nipa shack" until he was near the coconut tree. There he found a person lying with his face down. He later found out that the person was the son of Francisco Andes. 85 After the firing had stopped, Pinto told him that Bello was dead. Pinto then went up the house. Buenaflor went back to the pili tree, untied the four persons they had captured, and told them to do something so they could carry the bodies of Bello and (Rosalio) Andes. 86 Like Pinto, on cross-examination, Buenaflor also asserted that he did not fire his gun at the jeep carrying the Tiongsons. 87 While admitting that the person who led them to Bello had told them that the latter was in Talahib, Buenaflor did not know that Talahib was a barrio of Daraga, Albay and not of Legazpi City.88 He reiterated that he shouted at Bello urging him to surrender 89 but he was not able to fire a warning shot or identify himself as a member of the police force "because after the second shot there was already a burst of gunfire".90 Buenaflor affirmed that the first shot emanating from the balcony of the house in Talalib which was around fifteen meters from the pili tree, came from a "high caliber firearm". 91 After they had found out that Bello was dead, Pinto went up the house. Later, Pinto gave him Bello's 380 automatic pistol and garand. 92 Although he looked at those firearms, he did not determine whether they had been fired. 93 He noticed, however, that the magazine of the garand was "intact". 94 Aside from Bello's firearms, Buenaflor and Pinto confiscated two .22 caliber revolvers and two bolos found on Bello's bodyguards. 95

Buenaflor stated that his Thompson submachinegun had two clips with each clip containing 30 bullets. When he gave back the firearm to Major Molo, only four bullets were left of the one clip he had used. 96 He remembered having squeezed twice the trigger of his Thompson submachinegun or automatic rifle in Talahib.97 His service revolver was still with him then. 98 As a result of this series of events, four separate informations were filed against Pinto and Buenaflor. The information charging Pinto and Buenaflor for the murder of Andes which was filed on July 26, 1971 reads: That on or about the 27th day of December, 1970, in sitio Ando, Barrio Talahib, Daraga, Albay and within the jurisdiction of this Honorable Court the accused, conspiring and confederating together and mutually helping one another, without any justifiable cause or motive, with intent to kill, did, then and there, willfully, unlawfully and feloniously, with treachery and evident premeditation, accused Pat. Narciso Buenaflor, Jr. and Pat. Daniel Pinto, Jr., and by means of a Cal. 45 Thompson Sub-Machine Gun, SN-213436 and a US Carbin Inland, Cal. 30, SN-5099407, owned respectively by said accused, shoot one Rosalio Andes, inflicting upon him gunshot wounds as described in the attached Autopsy Report marked as Annex "A" and being made an integral part of this Information, thereby causing upon said Rosalio Andes serious and mortal wounds which led to his instantaneous death. Contrary to law. The information charging Pinto and Buenaflor with having murdered Bello contains basically the same allegations as the above and it was filed on the same date. On August 24, 1971 two other informations were filed against Pinto and Buenaflor: one for the murder of Richard Tiongson and another for the frustrated murder of Maria Theresa Tiongson. On arraignment, Pinto and Buenaflor both pleaded not guilty to all the charges. After trial, the trial court rendered the aforementioned judgment of conviction. For the killing of Bello and Andes, the trial court appreciated evident premeditation as a qualifying circilmstance and treachery, nighttime and use of public position as aggravating circumstances. For the incident involving the Tiongson children, it considered the crimes as qualified by treachery and aggravated by the use of public position. Pinto and Buenaflor instituted the instant appeal praying for exoneration mainly on the basis of their claim that the killings were perpetrated in the course of the performance of their official duties as peace officers in obedience to the lawful order of their superiors. In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal Code may be successfully invoked, the defense has to prove that these two requisites are present: (a) the offender acted in the performance of a duty and (b) the injury or offense committed be the necessary consequence of the due performance or lawful exercise of such duty. In the absence of the second requisite, the justification becomes an incomplete one thereby converting it into a mitigating circumstance under Articles 13 and 69 of the same Code. 99 Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal duty: the service of a search warrant on Bello. In the process, however, appellants abused their authority resulting in unauthorized and unlawful moves and consequences. Armed with only a search warrant and the oral order to apprehend Bello, they went beyond the ambit of their mission and deprived Bello and two other persons of their lives. While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds ranging from taking the harvest of their hacienda without the permission of his parents to assaulting his stepfather, and that he was "dangerous while under the influence of liquor", 100 there was no proof that he had been convicted of any offense or that he was a dangerous fugitive from justice which would warrant a "shoot to-kill" order from police authorities. Proof of bad moral character of the victim only establishes a probability that he committed a crime but it certainly cannot be the reason for annihilating him nor may it prevail over facts proven showing that the same victim had been cold-bloodedly killed. 101 As such, the suspicion that Bello was maintaining a private army was not a sufficient justification for his being rubbed out without due process of law. The police theory that Bello authored the shooting of one Salustiano Botin on Christmas eve is neither a justification for his arrest without a warrant. It should be observed that while the police had obtained a search warrant for illegal possession of firearms against Bello even on Christmas day which was supposed to be a holiday, no such effort was made in securing warrant of arrest for Bello's alleged frustrated killing of Botin. The improbability of the defense evidence through the testimony of Botin himself that Bello had shot him in the evening of December 24, 1970 is bolstered by the same testimony showing that while he was shot by Bello in the presence of the police force who were converging at the junction of Homapon and Mariawa, the same law enforcers were unable to arrest Bello. Besides the fact that no other eyewitness corroborated Botin's testimony even in the face of his own admission that Bello had no reason to shoot him, no complaint was ever lodged against Bello for the alleged shooting. 102 On the other hand, the prosecution, through eyewitness Rogelio Escober, tried to establish that during said shooting incident the police were looking for Bello at the store of a certain Serrano. 103 Unable to find Bello, the police, specifically Pinto, mauled Escober while asking him to testify against Bello for allegedly shooting Botin. 104 The police had focused their vehicles' headlights near the bodega of ex-Mayor Los Baños in their effort to flush out Bello who, unknown to the police, had earlier left the vicinity. It was when the police fired at the said bodega that Botin must have been accidentally shot. 105 This story was uncorroborated but if true, would show the police's dangerous propensity for using otherwise official operations in an unlawful manner. A propensity for rash judgment was likewise amply shown at the incident involving the Tiongson children. Since the jeep coming towards them was owned by the Anduizas, the appellants acted obviously in the belief that Bello was its passenger and posthaste they fired upon it even without any inquiry as to the identity of its passengers. 106Granting that the police indeed fired a warning shot, sound discretion and restraint dictated that, there being no responding shots from its passengers after the alleged warning shot and considering the condition of the road which was not only muddy but uphill, instead of directing aimless gunburst at the jeep, the most that they could have done was to render the jeep immobile by shooting its tires. That way, they could have verified the identity of the passengers. As it were, they riddled the jeep with bullets injuring in the process innocent passengers who were completely unaware of what they were up against. Appellants' stark denial of firing their guns upon the Tiongson family falls flat in the face of various circumstantial evidence which point to their culpability. There is the unflinching testimony of Sgt. Romero that he saw "flashes of fire" from the direction of Buenaflor as the jeep bearing the Tiongsons passed by. Said testimony was

corroborated by that of Rafael Jacob, the PC member of team 2, that while no one in his team fired his gun, the "sporadic firing" came from team 3 after the first of fire which occurred while the jeep was "abreast of team 2". 107Even defense witness Mariano Rico, a policeman who led team 1, was "sure" that he heard gunshots at the moment when "the jeep had just passed team 2". 108 Then there are the four empty .30 caliber carbine shells which were found near the coconut tree where, according to Romero, Pinto was deployed. While he himself carried a carbine, Romero did not fire it and his testimony was never contradicted. The four empty shells were compared with the test shells which were fired from the US carbine, caliber .30 Inland Division, SN-5099407, which, according to the aforequoted information charging appellant with having killed Andes, was used by Pinto, they were found to have "significant similar individual characteristics". 109 While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was fired from a Smith & Wesson type firearm 110 and Buenaflor was proven to be carrying a .38 caliber Tell revolver, the findings of expert witnesses or, in this case, the ballistic report pointing to another kind of caliber .38 weapon as the source of Richard's wound only serves as a guide for the courts after considering all the facts of the case.111 The undisputed fact is that Buenaflor was specifically pointed by Romero as the one who fired his firearm as the Anduiza jeep bearing the Tiongsons passed by. Inasmuch as no evidence that Romero would prevaricate to pin responsibility on Buenaflor was ever presented, there is, therefore, no reason to discredit his testimony. 112 In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such motive provided a circumstantial evidence leading to the inference that indeed he fired his gun. 113 According to the unrebutted testimony of Rogelio Escober, an overseer of the Napal hacienda and constant companion of Bello, on November 1, 1970, Buenaflor and another policeman named Santos Urbana, Jr. borrowed Bello's jeep on the pretext that they needed it to transfer Moscoso, the suspect in the Perez killing, to the Albay Police Headquarters. When it was returned, the jeep had bloodstains. Bello and Escober later learned from a PC officer that the jeep had been used in dumping in Guinobatan the body of Moscoso. Confronted by the PC officer, Bello admitted that the jeep was borrowed by Buenaflor and Urbina and agreed to execute a sworn statement on the matter. Consequently, the PC authorities notified Mayor Imperial of the solution of the Moscoso killing. Three days later, Escober and Bello met Urbina who warned Bello, "Kit, if you want to give your statement, just say that I borrowed your jeep for thirty minutes. This is a brotherly advice because something might happen to you." Bello retorted that he would do what was right and that was to tell the truth. Urbina said that it was up to Bello but he repeated that he was giving Bello a brotherly warning that something might happen to him 114 (TSN, August 23, 1973, pp. 4-20). These facts were of course denied by Buenaflor. However, as between the positive declaration of a prosecution witness and the negative denial of the accused, the former deserves more credence. 115 All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor fired their guns in defiance of their superior officer's order only "to find the whereabouts" of Bello 116 and to desist from using their weapons "without clearance from the Chief of Police". 117 Since there is more than one circumstance and the facts from which the inferences are derived are proven, the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 118 The fact that the victims were different from the ones the appellants intended to injure cannot save them from conviction. Aberratio ictus or mistake in the identity of the victim carries the same gravity as when the accused zeroes in on his intended victim. The main reason behind this conclusion is the fact that the accused had acted with such a disregard for the life of the victim(s) — without checking carefully the latter's identity as to place himself on the same legal plane as one who kills another willfully, unlawfully and feloniously. 119 Neither may the fact that the accused made a mistake in killing one man instead of another be considered a mitigating circumstance. 120 It is not even necessary to pinpoint who between Pinto and Buenaflor actually caused the death of Richard or the wounding of Maria Theresa in the presence of proof beyond reasonable doubt that they acted in conspiracy with each other. 121 Prior agreement between the appellants to lull their intended victim is not essential to prove conspiracy as the same may be inferred from their own acts showing joint purpose and design. 122 In this case, such unity of purpose and design is shown by the fact that only the two of them fired their guns when the Anduiza jeep with the Tiongsons passed by. This they did in defiance of the order of their superior not to shoot unless ordered to do so. Conspiracy having been proved, the guilt or culpability is imposable on both appellants in equal degrees. 123 The same conspiracy was evident in the killing of Bello and Andes. The appellants' concerted action was shown by the manner by which they killed the two. In this incident, however, they invoke self-defense as a justifying circumstance. Evidence at hand, however, do not favor their claim. Under Article 11 (1) of the Rules of Court, an accused must prove the presence of all the following elements of said exempting circumstance: (a) unlawful aggression, (b) reasonable necessity of the means employed to prevent or repel it, and (c) lack of sufficient provocation on the part of the person defending himself. 124 The presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or incomplete, unless the victim has committed an unlawful aggression on the person defending himself. 125 In this case, Buenaflor insists that he fired at Bello because, after calling out to him to surrender, his shout was answered by a gunshot. Pinto corroborates his story but the principal prosecution eyewitness in this incident, Inocencia Malbas, swears that she heard no such shout to surrender nor a gunshot from Bello's direction before Bello was fired upon by the appellants. Physical evidence as well as the testimonies of Buenaflor himself and Pinto show that Inocencia, and not the appellants, was telling the truth. Rafael Señora, the NBI agent who went to Talahib and the road to Mariawa to investigate as well as to take pictures, found no bullet marks at the crime scene which would pertain to a .22 caliber "paltik" firearm which Bello's men allegedly used. 126 As no other "paltik" firearms were recovered from the crime scene other than the two which Buenaflor confiscated from Mostoles and Francisco Andes, the possibility of said firearms or one of its kind having been used by Bello's men against the appellant particularly the one who escaped is nil. Buenaflor claimed that the shot after his call to Bello belonged to a high-powered gun 127 obviously referring to the firearms recovered from Bello himself. According to Buenaflor however, when he found the rifle, its magazine was "intact" and he did not manipulate the rifle to know how many of its bullets had been used. 128 Moreover, if Bello indeed fired a gun, it must be the firearm in his holster and not the garand which was found a couple of meters from where Bello had fallen. That Bello did not fire any of his two firearms is buttressed by Pinto's own testimony that Bello was smoking with his back towards them when he was shot at

and that at that moment, he did not see Bello holding a gun. 129 We cannot help, therefore, but conclude that the defense claim that Buenaflor's call to Bello was answered by a gunshot is but a figment of their imagination designed for their own exoneration. Appellants' claim of unlawful aggression on the part of Bello or his men would have been clarified had any of Bello's men whom they had captured been presented in court. These men, Leoncio Mostoles, Francisco Andes, Domingo Bantique and Ananias Andes had executed statements before the Legazpi City police to the effect that they heard Buenaflor's call for Bello to surrender and that Bello fired his gun at the appellants. However, all four of them later executed statements before the NBI retracting said earlier statements in view of the fact that the police had threatened them to make the statements favorable to the appellants. 130 As regards the unlawful aggression of Rosalio Andes against Pinto, we find that if we are to believe Pinto, we have to stamp full credibility on his statement alone. Even Buenaflor admitted that he did not see Rosalio Andes attack Pinto. 131 Inocencia swore that she did not see any weapon near the fallen Rosalio. Indeed, if the aggression did occur, Pinto would not have lost time in presenting in court the bolo which Andes threatened to use on him. But granting that Rosalio had a bolo, Pinto was not justified in inflicting the wounds sustained by Rosalio because a mere threatening attitude of the victim will not constitute unlawful aggression. 132 Moreover, Pinto's testimony that Rosalio menacingly approached him with a bolo after Buenaflor had released a sunburst directed at the house where Bello was, is contrary to human behavior if not totally ridiculous. On the contrary, by his own admission, Pinto continued firing until he saw Rosalio fell. An accused who admits inflicting fatal injury on his victim and invokes self-defense must rely on the strength of his own evidence and not only on the weakness of that of the prosecution for, even if weak, the prosecution evidence gains more credibility. 133 Unfortunately, in this case, inspire of the fact that the prosecution had only one eyewitness to the killing of Bello and Andes, the appellants had not presented sufficiently strong evidence to shore up their claim of self-defense. We agree with the trial court that treachery attended the commission of all four crimes in this case. The killing of Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa Tiongson were all so sudden that all of them were left defenseless. This is shown not only by the testimonial evidence on the commission of the crimes but also by the nature and location of the wounds of all the victims. 134 The presence of treachery qualifies the killings to murder and the wounding of Maria Theresa to frustrated murder. Nighttime, however, may not be appreciated as there is no proof that it was specifically sought in the commission of the crime and therefore we deem it absorbed by treachery. Evident premeditation has not been proven beyond reasonable doubt in this case but we find that the appellants indeed took advantage of their public position in perpetrating the crime. Under Article 248 of the Revised Penal Code, murder is punishable by reclusion temporal in its maximum period to death. There being no mitigating circumstance to temper the penalty and there being only the aggravating circumstance of taking advantage of their public office under Article 14 (1) of the said Code, the proper penalty is death. 135 However, in view the constitutional abolition of the death penalty, the penalty of reclusion perpetua shall be imposed on the appellants for each of the three murders they committed. For the wounding of Maria Theresa, the penalty imposable, applying Article 50 of the Revised Penal Code, isprision mayor maximum to reclusion temporal medium. There being no reason to further lower the penalty by one degree pursuant to the provision of Article 250, and there being one aggravating circumstance and no mitigating circumstance, the penalty should be within the range of prision mayor maximum to reclusion temporal medium. Applying the Indeterminate Sentence Law, 136 the proper penalty for the frustrated murder of Maria Theresa is six (6) years of prision correccional maximum as minimum to ten (10) years and one (1) day of prision mayor maximum as maximum. The indemnity of eight thousand pesos imposed by the lower court should be respected considering that while there is evidence as to the actual amount she spent while confined at the Sacred Heart Hospital in Legazpi City, there is no proof as to the expenses she incurred after she was transferred to the Camp Crame Hospital in Quezon City. As in all cases wherein peace officers are accused, this case creates a feeling of frustration in everyone. The crimes committed here ought to have no place in this democratic and civilized society. True it is that a police officer is sometimes left in a quandary when faced with a situation where a decisive but legal action is needed. But, as this Court said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225 [1954]), "(t)he judgment and discretion of public officers, in the performance of their duties, must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and with the spirit and purpose of the law." Police officers must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights. In the words of then Justice Moran in theOanis case (Supra): It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise, we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of officers of the law. Notoriety rightly supplies a basis for redoubled official alertness an vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever warrant action of such character in the mind of a reasonably prudent man, condemnation—not condonation— should be the rule; otherwise we would offer a premium to crime in the shelter of official actuation. WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that appellants shall solidarily be liable for the amount of Fifty Thousand (P50,000) for each of the three murders they committed and, for the frustrated murder of Maria Theresa Tiongson, each of them shall suffer the indeterminate penalty of from six (6) years of prision correccional maximum as minimum to ten (10) years and one (1) day of prision mayormaximum as maximum. Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for only five months 137 when the crimes were committed, let a copy of this decision be furnished the Office of the President for whatever action may be proper to temper his penalty. 138 SO ORDERED.