Pp vs Mandoriao to Pp vs Dioso Crim Law II

ARTICLE 133Offending the religious feelingsPeople vs. Mandoriao, Jr.C.A., 51 O.G. 4619 FACTS: The Iglesia ni Cristo held a religious rally at a public place in Baguio. About 200 people attended the meeting; about 50 of who weremembers of the Iglesia ni Cristo but the rest were outsiders and curious listeners. While Salvio, a minister of Iglesia ni Cristo, was expounding onhis topic to the effect that Christ is not God, but only man, the crowd became unruly. Some people urged Mandoriao to go up the stage and havea debate with Salvio. Mandoriao however, was not able to speak before the microphone because the wire connecting it was abruptlydisconnected. ISSUE: Whether or not the meeting was a religious ceremony HELD: The meeting here was not a religious ceremony. A religious meeting is an “assemblage of people met for the purpose of performing acts of adoration to the Supreme Being, or to perform religious services in recognition of God as an object of worship…” The meeti ng here was notlimited to the members of the Iglesia ni Cristo. The supposed prayers and singing of hymns were merely incidental because the principal objectof the rally was to persuade new converts to their religion. Assuming that the rally was a religious ceremony, the appellant cannot be said tohave performed acts or uttered words offensive to the feelings of the faithful. The act complained of must be directed against a dogma or ritual,or upon an object of veneration. There was no object of veneration at the meeting. RATIO: Religious ceremonies are those religious acts performed outside of a church, such as processions and special prayers for burying dead persons. When the application of the Church of Christ was to hold the meeting at a public place and the permit expressly stated that the purposewas to hold a prayer rally, what was held on that occasion was not a religious ceremony, even if a minister was then preaching “(that Jesus Christwas not God but only a man”). The rally was attended by persons who are not members of the sect Republic of the Philippines SUPREME COURT Manila

Crispin Oben for appellant. Guillermo B. Guevarra for defendants-appellees. No appearance for plaintiff-appellee. CONCEPCION, J.: This appeal was given due course by the Court of First Instance of Laguna by virtue of a writ of mandamus issued by this court in G.R. No. 45780. The facts are the following: In the justice of the peace court of the municipality of Lumban, Province of Laguna, a complaint was filed of the following tenor: The undersigned Parish Priest of the Roman Catholic Church in the parish and municipality of Lumban, Province of Laguna, upon being duly sworn, charges Enrique Villaroca, Alejandro Lacbay and Bernardo del Rosario with an offense against religion committed as follows: That on April 14, 1937, at about 9 o'clock a.m., in this municipality of Lumban, Province of Laguna, Philippines, and within the jurisdiction of this court, the aforesaid accused, while holding the funeral of one who in life was called Antonio Macabigtas, in accordance with the rites of religious sect known as the "Church of Christ", willfully, unlawfully, and criminally caused the funeral to pass, as it in fact passed, through the chruchyard fronting the Roman Catholic Church, which churchyard belongs to the said Church, which churchyard belongs to the said Church and is devoted to the religious worship thereof, against the opposition of the undersigned complainant who, through force and threats of physical violence by the accused, was compelled to allow the funeral to pass through the said churchyard. An act committed in grave profanation of the place, in open disregard of the religious feelings of the Catholics of this municipality, and in violation of article 133 of the Revised Penal Code. (Sgd.) JOSE M.A. BAES Parish Priest Complainant

EN BANC G.R. No. L-46000

May 25, 1939

THE PEOPLE OF THE PHILIPPINES, appellee, vs. JOSE M. BAES, appellant.

(Here follow the affidavit and the list of witnesses.) The accused pleaded not guilty and waived the preliminary investigation. Before the case was remanded to the Court of First Instance of Laguna, the

complainant filed a sworn statement regarding other points so that the provincial fiscal may have full knowledge of the facts and of the witnesses who could testify thereon. Upon the remand of the case to the court, the fiscal, instead of filing the corresponding information, put in the following motion for dismissal: The complainant is the parish priest of the Roman Catholic Church of Lumban, Laguna. The said priest charges the accused with having caused, through force, intimidation and threats, the funeral of one belonging to the Church of Christ to pass through the churchyard of the Church. Apparently, the offense consists in that the corpse was that of one who belonged to the Church of Christ. The undersigned is of the opinion that the fact act imputed to the accused does not constitute the offense complained of considering the spirit of article 133 of the Revised Penal Code. At most they might be chargeable with having threatened the parish priest, or with having passed through a private property without the consent of the owner. Justice Albert, commenting on the article, has this to say: "An act is said to be notoriously offensive to the religious feelings of the faithful when a person ridicules or makes light of anything constituting a religious dogma; works or scoffs at anything devoted to religious ceremonies; plays with or damages or destroys any object of veneration by the faithful." The mere act of causing the passage through the churchyard belonging to the Church, of the funeral of one who in life belonged to the Church of Christ, neither offends nor ridicules the religious feelings of those who belong to the Roman Catholic Church.

the fiscal not omitted this essential part, he would not have come to the conclusion that the acts complained of do not constitute the crime defined and penalized by article 133 of the Revised Penal Code. Moreover, the fiscal, in his aforesaid motion, denies that the unlawful act committed by the accused had offended the religious feelings of the Catholics of the municipality in which the act complained of took place. We believe that such ground of the motion is indefensible. As the fiscal was discussing the sufficiency of the facts alleged in the complaint, he cannot deny any of them, but must admit them, although hypothetically, as they are alleged. The motion raises a question of law, not one of fact. In the second place, whether or of the act complained of is offensive to the religious feelings of the Catholics, is a question of fact which must be judged only according to the feelings of the Catholics and not those of other faithful ones, for it is possible that certain acts may offend the feelings of those who profess a certain religion, while not otherwise offensive to the feelings of those professing another faith. We, therefore, take the view that the facts alleged in the complaint constitute the offense defined and penalized in article 133 of the Revised Penal Code, and should the fiscal file an information alleging the said facts and a trial be thereafter held at which the said facts should be conclusively established, the court may find the accused guilty of the offense complained of, or that of coercion, or that of trespass under article 281 of the Revised Penal Code, as may be proper, pursuant to section 29 of General Orders, No. 58. The appealed order is reversed and the fiscal is ordered to comply with his duty under the law, without pronouncement as to the costs. So ordered. People v. Tengson

Sustaining the foregoing motion, the court by an order of August 31, 1937, dismissed the case, reserving, however, to the fiscal the right to file another information for the crime found to have been committed by the accused. From this order, the plaintiff appealed, which appeal was denied but thereafter given due course by the court by virtue of an order of this court. The appealed order is based upon the motion to dismiss filed by the fiscal. This officer questions the sufficiency of the facts alleged in the complaint, but omits an essential part thereof, to wit, that the churchyard belongs to the church, and is devoted to the religious services of said church, and it is through this churchyard that the accused, over the objection of the parish priest and through force and intimidation, caused to pass the funeral of one under the rites of the religious sect known as the Church of Christ. Had

Christ is the answer Funeral; performed religious rites inthe house and in an unfinishedbarrio chapelChanting of Alleluia,singing religious hymnsAcquitted.Second element that the act isnotoriously offensive to the feelingsof the faithful was not present.Offense should not be depend uponthe subjective conception orcharacterization of such religious act.Laurel Standard: (dissent from Baes)Perspective of the faithful IN GENERAL-Believers of Jesus Christ regardless of religious sect or denomination Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. 92163 June 5, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner vs. JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES (Superintendent of the Northern Police District) AND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE,respondents. G.R. No. 92164 June 5, 1990 SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners, vs. PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON. JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial Court, Quezon City, Branch 103, respondents.

NARVASA, J.: Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once more takes center stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its applicability. To be sure, the intervening period saw a number of similar cases 2 that took issue with the ruling-all with a marked lack of success-but none, it would Beem, where season and circumstance had more effectively conspired to attract wide public attention and excite impassioned debate, even among laymen; none, certainly, which has seen quite the kind and range of arguments that are now brought to bear on the same question. The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation

on the strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant had issued on an information signed and earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having been recommended in the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula Torres. 3 On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpusherein (which was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his constitutional rights in being, or having been: (a) held to answer for criminal offense which does not exist in the statute books; (b) charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence was denied due process; (c) denied his right to bail; and (d) arrested and detained on the strength of a warrant issued without the judge who issued it first having personally determined the existence of probable cause.

4

The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990. 5On March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in this case and in G.R. No. 921647 Which had been contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return urged that the petitioners' case does not fall within the Hernandezruling because-and this is putting it very

simply-the information in Hernandez charged murders and other common crimes committed as a necessary means for the commission of rebellion, whereas the information against Sen. Enrile et al.charged murder and frustrated murder committed on the occasion, but not in furtherance, of rebellion. Stated otherwise, the Solicitor General would distinguish between the complex crime ("delito complejo") arising from an offense being a necessary means for committing another, which is referred to in the second clause of Article 48, Revised Penal Code, and is the subject of the Hernandez ruling, and the compound crime ("delito compuesto") arising from a single act constituting two or more grave or less grave offenses referred to in the first clause of the same paragraph, with which Hernandez was not concerned and to which, therefore, it should not apply. The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its Resolution of the same date 8 granting Senator Enrile and the Panlilio spouses provisional liberty conditioned upon their filing, within 24 hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was issued without prejudice to a more extended resolution on the matter of the provisional liberty of the petitioners and stressed that it was not passing upon the legal issues raised in both cases. Four Members of the Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail to the Panlilios. The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No. 92163. The parties' oral and written pleas presented the Court with the following options: (a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice Montemayor in said case that rebellion cannot absorb more serious crimes, and that under Article 48 of the Revised Penal Code rebellion may properly be complexed with common offenses, so-called; this option was suggested by the Solicitor General in oral argument although it is not offered in his written pleadings; (b) hold Hernandez applicable only to offenses committed in furtherance, or as a necessary means for the commission, of rebellion, but not to acts committed in the

course of a rebellion which also constitute "common" crimes of grave or less grave character; (c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course, whether or not necessary to its commission or in furtherance thereof.

On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt that the doctrine should be re-examined. 10-A In the view of the majority, the ruling remains good law, its substantive and logical bases have withstood all subsequent challenges and no new ones are presented here persuasive enough to warrant a complete reversal. This view is reinforced by the fact that not too long ago, the incumbent President, exercising her powers under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former regime which precisely sought to nullify or neutralize Hernandez by enacting a new provision (Art. 142-A) into the Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender."' 11 In thus acting, the President in effect by legislative flat reinstated Hernandez as binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing. On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its application to offenses committed as a necessary means for the commission of rebellion and that the ruling should not be interpreted as prohibiting the complexing of rebellion with other common crimes committed on the occasion, but not in furtherance, thereof. While four Members of the Court felt that the proponents' arguments were not entirely devoid of merit, the consensus was that they were not sufficient to overcome what appears to be the real thrust of Hernandez to rule out the complexing of rebellion with any other offense committed in its course under either of the aforecited clauses of Article 48, as is made clear by the following excerpt from the majority opinion in that case:

There is one other reason-and a fundamental one at thatwhy Article 48 of our Penal Code cannot be applied in the case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. in other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48 said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant. Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty more severe than that which would be proper if the several acts performed by him were punished separately. In the words of Rodriguez Navarro: La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo.' (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.) We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and then in 1932, reading: Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro.

En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo, hasta el limite que represents la suma de las que pudieran imponerse, penando separadamente los delitos. Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado. (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163) and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing that the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no other purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The reason for this benevolent spirit of article 48 is readily discernible. When two or more crimes are the result of a single act, the offender is deemed less perverse than when he commits said crimes thru separate and distinct acts. Instead of sentencing him for each crime independently from the other, he must suffer the maximum of the penalty for the more serious one, on the assumption that it is less grave than the sum total of the separate penalties for each offense. 12 The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandezremains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion.

This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less adjudged. That is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for the disposition of other questions relevant to the petitioner's complaints about the denial of his rights and to the propriety of the recourse he has taken. The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an offense. Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated murder, that indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said: In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion allegedly committed by said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P2H,HHH; and that, in conformity with the policy of this court in dealing with accused persons amenable to a similar punishment, said defendant may be allowed bail. 13 The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while technically correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context ofHernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: simple rebellion. Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the Director of the National Bureau of Investigation, and that on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors, culminating in the filing of the questioned information.14 There is nothing inherently irregular or contrary to law in

filing against a respondent an indictment for an offense different from what is charged in the initiatory complaint, if warranted by the evidence developed during the preliminary investigation. It is also contended that the respondent Judge issued the warrant for petitioner's arrest without first personallydetermining the existence of probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has already ruled, however, that it is not the unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by personally evaluating the report and the supporting documents submitted by the prosecutor. 16 Petitioner claims that the warrant of arrest issued barely one hour and twenty minutes after the case was raffled off to the respondent Judge, which hardly gave the latter sufficient time to personally go over the voluminous records of the preliminary investigation. 17 Merely because said respondent had what some might consider only a relatively brief period within which to comply with that duty, gives no reason to assume that he had not, or could not have, so complied; nor does that single circumstance suffice to overcome the legal presumption that official duty has been regularly performed. Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandez as applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be accepted as a correct proposition. But the question remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial? The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent crime or, contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify his improper choice of remedies. Under

either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent Judge. 18 There thus seems to be no question that All the grounds upon which petitioner has founded the present petition, whether these went into the substance of what is charged in the information or imputed error or omission on the part of the prosecuting panel or of the respondent Judge in dealing with the charges against him, were originally justiciable in the criminal case before said Judge and should have been brought up there instead of directly to this Court. There was and is no reason to assume that the resolution of any of these questions was beyond the ability or competence of the respondent Judgeindeed such an assumption would be demeaning and less than fair to our trial courts; none whatever to hold them to be of such complexity or transcendental importance as to disqualify every court, except this Court, from deciding them; none, in short that would justify by passing established judicial processes designed to orderly move litigation through the hierarchy of our courts. Parenthentically, this is the reason behind the vote of four Members of the Court against the grant of bail to petitioner: the view that the trial court should not thus be precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that matter, denied an opportunity to correct its error. It makes no difference that the respondent Judge here issued a warrant of arrest fixing no bail. Immemorial practice sanctions simply following the prosecutor's recommendation regarding bail, though it may be perceived as the better course for the judge motu proprio to set a bail hearing where a capital offense is charged. 19 It is, in any event, incumbent on the accused as to whom no bail has been recommended or fixed to claim the right to a bail hearing and thereby put to proof the strength or weakness of the evidence against him. It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the regular manner just outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may have hoped to avoid by coming directly to this Court. Not only because popular interest seems focused on the outcome of the present petition, but also because to wash the Court's hand off it on jurisdictional grounds would only compound the delay that it has already gone through, the Court now decides the same on the merits. But in so doing, the Court cannot express too strongly the view that said petition

interdicted the ordered and orderly progression of proceedings that should have started with the trial court and reached this Court only if the relief appealed for was denied by the former and, in a proper case, by the Court of Appeals on review. Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like the present, that clearly short-circuit the judicial process and burden it with the resolution of issues properly within the original competence of the lower courts. What has thus far been stated is equally applicable to and decisive of the petition of the Panlilio spouses (G.R. No. 92164) which is virtually Identical to that of petitioner Enrile in factualmilieu and is therefore determinable on the same principles already set forth. Said spouses have uncontestedly pleaded 20 that warrants of arrest issued against them as co-accused of petitioner Enrile in Criminal Case No. 90-10941, that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken into custody and detained without bail on the strength of said warrants in violation-they claim-of their constitutional rights. It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing rebellion. It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of our capital City seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is properly within its province.

WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of right. The Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both cases are ordered REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this Court shall become functus oficio. No pronouncement as to costs.SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 93335 September 13, 1990 JUAN PONCE ENRILE, petitioner, vs. HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of Makati, Branch 135, HON. IGNACIO M. CAPULONG, Presiding Judge of Regional Trial Court of Makati, Branch 134, Pairing Judge, SPECIAL COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE, State Prosecutor FERDINAND ABESAMIS and Asst. City Prosecutor EULOGIO MANANQUIL; and PEOPLE OF THE PHILIPPINES,respondents. Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

GUTIERREZ, JR., J.: Together with the filing of an information charging Senator Juan Ponce Enrile as having committed rebellion complexed with murder 1 with the Regional Trial Court of Quezon City, government prosecutors filed another information charging him for violation of Presidential Decree No. 1829 with the Regional Trial Court of Makati. The second information reads:

That on or about the 1st day of December 1989, at Dasmariñas Village, Makati, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, having reasonable ground to believe or suspect that Ex-Col. Gregorio "Gringo" Honasan has committed a crime, did then and there unlawfully, feloniously, willfully and knowingly obstruct, impede, frustrate or delay the apprehension of said Ex. Lt. Col. Gregorio "Gringo" Honasan by harboring or concealing him in his house. On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in abeyance the issuance of a warrant of arrest pending personal determination by the court of probable cause, and (b) to dismiss the case and expunge the information from the record. On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of respondent Judge Omar Amin, denied Senator Enrile's Omnibus motion on the basis of a finding that "there (was) probable cause to hold the accused Juan Ponce Enrile liable for violation of PD No. 1829." On March 21, 1990, the petitioner filed a Motion for Reconsideration and to Quash/Dismiss the Information on the grounds that: (a) The facts charged do not constitute an offense; (b) The respondent court's finding of probable cause was devoid of factual and legal basis; and (c) The pending charge of rebellion complexed with murder and frustrated murder against Senator Enrile as alleged co-conspirator of Col. Honasan, on the basis of their alleged meeting on December 1, 1989 preclude the prosecution of the Senator for harboring or concealing the Colonel on the same occasion under PD 1829. On May 10, 1990, the respondent court issued an order denying the motion for reconsideration for alleged lack of merit and setting Senator Enrile's arraignment to May 30, 1990. The petitioner comes to this Court on certiorari imputing grave abuse of discretion amounting to lack or excess of jurisdiction committed by the respondent court in refusing to quash/ dismiss the information on the following grounds, to wit:

I. The facts charged do not constitute an offense; II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in a supposed meeting on 1 December 1989 is absorbed in, or is a component element of, the "complexed" rebellion presently charged against Sen. Enrile as alleged co-conspirator of Col. Honasan on the basis of the same meeting on 1 December 1989; III. The orderly administration of Justice requires that there be only one prosecution for all the component acts of rebellion; IV. There is no probable cause to hold Sen. Enrile for trial for alleged violation of Presidential Decree No. 1829; V. No preliminary investigation was conducted for alleged violation of Presidential Decree No. 1829. The preliminary investigation, held only for rebellion, was marred by patent irregularities resulting in denial of due process. On May 20, 1990 we issued a temporary restraining order enjoining the respondents from conducting further proceedings in Criminal Case No. 90777 until otherwise directed by this Court. The pivotal issue in this case is whether or not the petitioner could be separately charged for violation of PD No. 1829 notwithstanding the rebellion case earlier filed against him. Respondent Judge Amin sustained the charge of violation of PD No. 1829 notwithstanding the rebellion case filed against the petitioner on the theory that the former involves a special law while the latter is based on the Revised Penal Code or a general law. The resolution of the above issue brings us anew to the case of People v. Hernandez (99 Phil. 515 [1956]) the rulings of which were recently repeated in the petition for habeas corpus of Juan Ponce Enrile v. Judge Salazar,(G.R. Nos. 92163 and 92164, June 5, 1990). The Enrile case gave this Court the occasion to reiterate the long standing proscription against splitting the component offenses of rebellion and subjecting them to separate prosecutions, a procedure reprobated in the Hernandez case. This Court recently declared:

The rejection of both options shapes and determines the primary ruling of the Court, which thatHernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means to its commission or as an unintended effect of an activity that commutes rebellion. (Emphasis supplied) This doctrine is applicable in the case at bar. If a person can not be charged with the complex crime of rebellion for the greater penalty to be applied, neither can he be charged separately for two (2) different offenses where one is a constitutive or component element or committed in furtherance of rebellion. The petitioner is presently charged with having violated PD No. 1829 particularly Section 1 (c) which states: SECTION 1. The penalty of prison correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos or both, shall be imposed upon any person who knowingly or wilfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts: xxx xxx xxx (c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction. xxx xxx xxx The prosecution in this Makati case alleges that the petitioner entertained and accommodated Col. Honasan by giving him food and comfort on December 1, 1989 in his house. Knowing that Colonel Honasan is a fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended. And because of such failure the petitioner prevented Col. Honasan's arrest and conviction in violation of Section 1 (c) of PD No. 1829.

The rebellion charges filed against the petitioner in Quezon City were based on the affidavits executed by three (3) employees of the Silahis International Hotel who stated that the fugitive Col. Gregorio "Gringo" Honasan and some 100 rebel soldiers attended the mass and birthday party held at the residence of the petitioner in the evening of December 1, 1989. The information (Annex "C", p. 3) particularly reads that on "or about 6:30 p.m., 1 December, 1989, Col. Gregorio "Gringo" Honasan conferred with accused Senator Juan Ponce Enrile accompanied by about 100 fully armed rebel soldiers wearing white armed patches". The prosecution thereby concluded that: In such a situation, Sen. Enrile's talking with rebel leader Col. Gregorio "Gringo" Honasan in his house in the presence of about 100 uniformed soldiers who were fully armed, can be inferred that they were co-conspirators in the failed December coup. (Annex A, Rollo, p. 65; Emphasis supplied) As can be readily seen, the factual allegations supporting the rebellion charge constitute or include the very incident which gave rise to the charge of the violation under Presidential Decree No. 1829. Under the Department of Justice resolution (Annex A, Rollo, p. 49) there is only one crime of rebellion complexed with murder and multiple frustrated murder but there could be 101 separate and independent prosecutions for harboring and concealing" Honasan and 100 other armed rebels under PD No. 1829. The splitting of component elements is readily apparent. The petitioner is now facing charges of rebellion in conspiracy with the fugitive Col. Gringo Honasan. Necessarily, being in conspiracy with Honasan, petitioners alleged act of harboring or concealing was for no other purpose but in furtherance of the crime of rebellion thus constitute a component thereof. it was motivated by the single intent or resolution to commit the crime of rebellion. As held in People v. Hernandez, supra: In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive.(p. 536) The crime of rebellion consists of many acts. It is described as a vast movement of men and a complex net of intrigues and plots. (People v. Almasan [CA] O.G. 1932). Jurisprudence tells us that acts committed in furtherance of the rebellion though crimes in themselves are deemed absorbed in the one single crime of rebellion. (People v. Geronimo, 100

Phil. 90 [1956]; People v. Santos, 104 Phil. 551 [1958]; People v. Rodriguez, 107 Phil. 659 [1960]; People v. Lava, 28 SCRA 72 [1969]). In this case, the act of harboring or concealing Col. Honasan is clearly a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot therefore be made the basis of a separate charge. The case of People v. Prieto 2 (80 Phil., 138 [1948]) is instructive: In the nature of things, the giving of aid and comfort can only be accomplished by some kind of action. Its very nature partakes of a deed or physical activity as opposed to a mental operation. (Cramer v. U.S., ante) This deed or physical activity may be, and often is, in itself a criminal offense under another penal statute or provision. Even so, when the deed is charged as an element of treason it becomes Identified with the latter crime and can not be the subject of a separate punishment, or used in combination with treason to increase the penalty as article 48 of the Revised Penal Code provides. Just as one can not be punished for possessing opium in a prosecution for smoking the Identical drug, and a robber cannot be held guilty of coercion or trespass to a dwelling in a prosecution for robbery, because possession of opium and force and trespass are inherent in smoking and in robbery respectively, so may not a defendant be made liable for murder as a separate crime or in conjunction with another offense where, as in this case, it is averred as a constitutive ingredient of treason. The prosecution tries to distinguish by contending that harboring or concealing a fugitive is punishable under a special law while the rebellion case is based on the Revised Penal Code; hence, prosecution under one law will not bar a prosecution under the other. This argument is specious in rebellion cases. In the light of the Hernandez doctrine the prosecution's theory must fail. The rationale remains the same. All crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and can not be isolated and charged as separate crimes in themselves. Thus: This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and hence, are absorbed by the same and cannot be punished

either separately therefrom or by the application of Article 48 of the Revised Penal Code. ... (People v. Hernandez, supra, at p. 528) The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping etc. as provided in the Revised Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense. The conversation and, therefore, alleged conspiring of Senator Ponce Enrile with Colonel Honasan is too intimately tied up with his allegedly harboring and concealing Honasan for practically the same act to form two separate crimes of rebellion and violation of PD No. 1829. Clearly, the petitioner's alleged act of harboring or concealing which was based on his acts of conspiring with Honasan was committed in connection with or in furtherance of rebellion and must now be deemed as absorbed by, merged in, and Identified with the crime of rebellion punished in Articles 134 and 135 of the RPC. Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses, and assume the political complexion of the main crime of which they are mere ingredients, and consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty. (People v. Hernandez, supra, p. 541) In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having pleaded guilty and convicted of the crime of rebellion, faced an independent prosecution for illegal possession of firearms. The Court ruled: An examination of the record, however, discloses that the crime with which the accused is charged in the present case which is that of illegal possession of firearm and ammunition is already absorbed as a necessary element or ingredient in the crime of rebellion with which the same

accused is charged with other persons in a separate case and wherein he pleaded guilty and was convicted. (at page 662) xxx xxx xxx [T]he conclusion is inescapable that the crime with which the accused is charged in the present case is already absorbed in the rebellion case and so to press it further now would be to place him in double jeopardy. (at page 663) Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January 30, 1990) where the Court had the occasion to pass upon a nearly similar issue. In this case, the petitioner Misolas, an alleged member of the New Peoples Army (NPA), was charged with illegal possession of firearms and ammunitions in furtherance of subversion under Section 1 of PD 1866. In his motion to quash the information, the petitioner based his arguments on the Hernandez and Geronimo rulings on the doctrine of absorption of common in rebellion. The Court, however, clarified, to wit: ... in the present case, petitioner is being charged specifically for the qualified offense of illegal possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no application in this case. The Court in the above case upheld the prosecution for illegal possession of firearms under PD 1866 because no separate prosecution for subversion or rebellion had been filed. 3 The prosecution must make up its mind whether to charge Senator Ponce Enrile with rebellion alone or to drop the rebellion case and charge him with murder and multiple frustrated murder and also violation of P.D. 1829. It cannot complex the rebellion with murder and multiple frustrated murder. Neither can it prosecute him for rebellion in Quezon City and violation of PD 1829 in Makati. It should be noted that there is in fact a separate prosecution for rebellion already filed with the Regional Trial Court of Quezon City. In such a case, the independent prosecution under PD 1829 can not prosper.

As we have earlier mentioned, the intent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political or social motives, that is in furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished separately. In view of the foregoing, the petitioner can not be tried separately under PD 1829 in addition to his being prosecuted in the rebellion case. With this ruling, there is no need for the Court to pass upon the other issues raised by the petitioner. WHEREFORE, the petition is GRANTED. The Information in Criminal Case No. 90-777 is QUASHED. The writ of preliminary injunction, enjoining respondent Judges and their successors in Criminal Case No. 90-777, Regional Trial Court of Makati, from holding the arraignment of Sen. Juan Ponce Enrile and from conducting further proceedings therein is made permanent.SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 100231. April 28, 1993. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODRIGO DASIG @ KA RUBIN DAKU @ ARMAND; EDWIN NUÑEZ Y TABANAS @ MABI; ALVIN DOE @ AL @ KA ALVIN; ROGER DOE @ KA JAMES @ KA PEPE; TUDING ANDRINO @ KA ERMI @ KA ROEL @ KA GRINGO MONTAYRE; RUBEN DOE @ KA RUBEN @ KA JOJI @ INO ECHAVEZ; ANASTACIO BANGKAL @ KA JUNIOR; AND CARLITO MAGASIN @ BOBBY, accused, RODRIGO DASIG, accused-appellant. The Solicitor General for plaintiff-appellee. Kinaadman and Archival for accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CONFESSION, AS A RULE, ADMISSIBLE; EXCEPTION; NOT APPLICABLE IN CASE AT BAR. — The settled jurisprudence on the matter is that a confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency. Appellant relies on the much abused claim that his extra-judicial confession was legally defective and

hence, should not have been admitted and considered by the trial judge. This accusation is whimsical and obviously a mere refuge for appellant's turnabout. In an attempt to avoid criminal liability, he now questions the integrity of the police authorities and the reputation of the lawyer who stood by him during the investigation. Indubitably established and now a matter of record is the fact that appellant was assisted by Atty. Parawan who even signed the former's sworn declarations. It is likewise a matter of record that before appellant made his extra-judicial confession, he was first asked if he was amenable to the services of Atty. Parawan to which query he answered affirmatively. Finally, the alleged use of force and intimidation has not been substantiated by evidence other than his self-serving testimony. as has been pointed out, such allegation is another naive effort of appellant to back track from his prior voluntary admission of guilt. Evidently, the taking of his extra-judicial confession was done with regularity and legality. 2. CRIMINAL LAW; REBELLION; ABSORBS THE CRIME OF DIRECT ASSAULT WHEN DONE IN FURTHERANCE THEREOF. — The crime of rebellion consists of may acts. It is a vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. The act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot be made a basis of a separate charge. 3. ID.; ID.; NOT COVERED BY INDETERMINATE SENTENCE LAW (R.A. 4203). — The Indeterminate Sentence Law is not applicable to persons convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the Solicitor General. Article 135 of the Revised Penal Code imposes the penalty of prision mayor and a fine not exceeding P20,000.00 to any person who promotes, maintains, or heads a rebellion. DECISION NOCON, J p: Appellant, Rodrigo Dasig is now before Us to plead the reversal of his conviction by the Regional Trial Court, Branch 28, Mandaue City finding him guilty of Murder with Direct Assault. He was charged together with Edwin Nuñez and 6 others who are still at large, in an information which reads: "That on or about the 4th day of August, 1987, in the city of Mandaue, of this Honorable Court, the aforenamed accused, conspiring and confederating together and helping one another, with intent to kill, treachery, evident premeditation, abuse of superior strength and use of motor vehicle, all armed with unlicensed firearms, did then and there

wilfully, unlawfully and feloniously attack, assault and shoot one Redempto Manatad, a police officer on traffic duty, at his vital portion which caused his death soon thereafter, knowing beforehand that the victim was a policeman who was then in the performance of his official duties." Upon arraignment, appellant and Edwin Nuñes entered a plea of "not guilty." However, after the prosecution had presented its first witness, accused Nuñes changed his plea of "not guilty" to "guilty." Hence, the lower court held in abeyance the promulgation of a judgment against said accused until the prosecution had finished presenting its evidence. While trial was still ongoing, Nuñez died on March 10, 1989, thereby extinguishing his criminal liability. The facts surrounding this case show that in the afternoon of August 4, 1987, Pfc. Redempto Manatad, Pfc. Ninah Tizon and Pfc. Rene Catamora were tasked by their commanding officer to assist in canning the traffic at M.N. Briones and Bonifacio Streets in Mandaue City. Pfc. Tizon controlled the traffic lighting facility; Pfc. Manatad manned the traffic; while Pfc. Catamora acted as back-up and posted himself at Norkis Trading building. At about 4:00 o'clock in the afternoon, Pfc. Catamora noticed eight (8) persons, one of whom he identified as Edwin Nuñez, acting suspiciously. He noticed one of them giving instructions to two of the men to approach Pfc. Manatad. He followed the two, but sensing that they were being followed, they immediately proceeded to the middle of the road and engaged Pfc. Catamora to a gun battle. At that instant, Pfc. Catamora heard a series of shots from the other group and thereafter saw Pfc. Manatad sprawled on the ground. Being out-numbered and to save his own life, Pat. Catamora sought refuge at the nearby BIR Office from where he saw two (2) persons take Pfc. Manatad's gun and again fired at him to make sure that he is dead while the rest of the group including Nuñes acted as back up. Thereafter, the Nuñes group commandeered a vehicle and fled from the scene of the shooting. Pfc. Rene Catamora testified that he can identify accused-appellant Nuñes because of a mole at the bridge of his nose near the left eye which he noticed when the accused passed 2 or 3 meters in front of him together with his companions. On August 16, 1987, two teams of police officers were tasked to conduct surveillance on a suspected safehouse of members of the sparrow unit located in Peace Valley, Cebu City. Upon reaching the place, the group saw Rodrigo Dasig and Edwin Nuñes trying to escape. The team of Capt. Antonio Gorre captured Nuñes and confiscated a .45 caliber revolver with 3 magazines and ammunitions, while the group of Sgt. Ronald Arnejo pursued Dasig, who threw a grenade at his pursuers, but was shot on his left upper arm and subsequently apprehended. A .38 caliber revolver with 17 live ammunitions were confiscated from him. Thereafter, Dasig was brought to the hospital for treatment, while Nuñes was turned over to the Metrodiscom for investigation. Meanwhile, Dasig

was interrogated by M/Sgt. Ariston Ira of the PC Criminal Investigation Service on August 19, 1987 at his hospital bed at the Lapulapu Army Hospital in Cebu City. Assisting Dasig during the interrogation was Atty. Fortunato Parawan of the Creer Law Office, who was requested by the military to represent appellant who did not have a lawyer. Before the start of the interrogation, Atty. Parawan asked appellant whether he was willing to avail of his services, to which appellant agreed. M/Sgt. Ira then appraised Dasig of his constitutional rights. The interrogation was conducted in Cebuano upon appellant's request. Dasig confessed that he and the group of Edwin Nuñes killed Pfc. Manatad. He likewise admitted that he and Nuñes were members of the sparrow unit and the their aliases were "Armand" and "Mabi," respectively. The extrajudicial confession of appellant marked as Exhibit "J" 2 was signed by him on every page thereof with the first page containing a certification likewise signed by him, which states: "I hereby certify that the herein statement is free and voluntary, and that I am assisted by my counsel in the course of this investigation" followed by the signed conformity of Atty. Parawan. The extra-judicial confession was subscribed and sworn to before Cebu City Asst. Fiscal Salvador Solima. In the present appeal, Dasig contends that the procedure by which his extra-judicial confession was taken was legally defective, and contrary to his Constitutional rights. He further contends that assuming he conspired in the killing of Pfc. Manatad, he should be convicted at most of simple rebellion and not murder with direct assault. Appellant also claims that the custodial interrogation was done while he was still very sick and consequently, he could not have fully appreciated the wisdom of admitting such a serious offense. That even with the presence of counsel, his extra-judicial confession is inadmissible in evidence as said counsel did not actively assist him and advise him of his rights. In effect, his presence was merely to give a semblance of legality to the proceedings and not to protect appellant against possible abuses of the investigator. Dasig, likewise questions the sincerity of Atty. Parawan in protecting his rights considering that the latter is a known anti-Communist advocate and that the law firm to which he belongs has represented high ranking officers of the Armed Forces of the Philippines. We find the argument specious. Fiscal Salvador Solima in his certification, Exhibit "J-7-B," stated that he had personally examined the affiant and that he is convinced that the latter's statement was free and voluntary and that the affiant signed the same in his presence and swore under oath as to the veracity of everything therein. Atty. Fortunato L. Parawan also testified that he assisted the affiant from the start of the investigation up to its termination. Atty. Parawan testified thus: "Q Who introduced Rodrigo Dasig to you?

A I inquired from the personnel of the hospital the whereabout of Rodrigo Dasig and I introduced myself as a lawyer. So they informed me the room of Rodrigo Dasig. At that time I introduced myself as a lawyer who came to assist the person of Rodrigo Dasig. Once we had a confrontation with Rodrigo Dasig, I asked him whether he was willing to get me as his lawyer in that investigation. Then he told me yes. Q Did he tell you whether he as a counsel of his own choice? A No. xxx xxx xxx Q In other words he accepted your services as counsel in connection with that investigation which was about to be made? A Yes. Q Who are the persons present at that time? A There were guards outside and inside. There was a man from the CIS in the person of Sgt. Ira, myself and Dasig. Q What happened after that? A The CIS started the investigation. Q You mean this Ariston Ira? A Yes. Q Before Ariston Ira conducted the investigation was Dasig informed of his constitutional rights to remain silent, to counsel and if he chooses to testify or say something, that statement of his will be used against or in his favor in the court of justice? A Yes. He was willing to get me as counsel in that investigation. Q After he was informed of his constitutional rights what transpired next? A The investigation started. Q Were you present at the very start of that investigation? A Yes. I was present from the start until it was finished. Q Was that reduced to writing? A Yes. xxx xxx xxx Q You said you were present during the entire investigation. Were the answers of the accused, Rodrigo Dasig, to the questions propounded by the investigator voluntary? A Yes, they voluntary. Q After the investigation was finished what transpired next? A After the investigation, I think that was already past 3:00 or 4:00, we proceeded to the office of the City Fiscal at F. Ramos St., Cebu City and then we proceeded to the Office of Fiscal Solema (sic) and then it was subscribed there before Fiscal Solema (sic). Q Were you present during the proceeding? A I was also present." We do not find any reason to doubt the factual findings and conclusions of the trial court that the extra-judicial confession of the appellant was voluntarily made. Said the trial court: "The prosecution's evidence clearly shows that herein accused during his investigation was properly informed and appraised of his constitutional right to remain silent and to have a competent and independent counsel preferably of his own choice but since at that time he did not signify his

intention to retain a lawyer of his own choice, so he was provided with a lawyer in the person of Atty. Fortunato Parawan of the Creer Law Office who was available at that time, to assist him during the custodial investigation conducted by T/Sgt. Ariston L. Ira at his hospital bed at Camp Lapulapu Army Station Hospital, Cebu City where he was confined after being hit on his upper left arm and in fact, Atty. Parawan only consented to assist herein accused after the latter has answered in the affirmative to his question as to whether he would be amenable to be assisted by him as his counsel of his own choice. "The prosecution's evidence further show that Atty. Fortunato Parawan after consenting to be his counsel was with him when his extra-judicial confession or sworn statement was subscribed and sworn to by him before Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office who, before accused has actually affixed his signature on each and every pages of his extra-judicial confession, has informed him (accused) of his constitutional rights and has explained the contents of his extra-judicial confession. "Moreover, per certification made by Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office, clearly shows that accused in executing the same has done so voluntarily and after having understood the contents thereof which is in the visayan language, a language known to him, found on the last page thereof now marked as Exhibit "J-7-B." "Furthermore, this sworn statement of accused Dasig is collaborated by the sworn statement of his co-accused Edwin Nuñes dated August 18, 1987 which is sworn and subscribed to before City Fiscal Jopelinito Pareja of the city Fiscal's Office of Cebu City." The settled jurisprudence on the matter is that a confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency. 5 The case of People of the Philippines v. Parojinog is four square to the case at bar. In Parojinog this court had this to say: "Anent his claim that Atty. Fuentes was not his choice, Section 12 (1) of Article III of the 1987 Constitution provides: 'Sec. 12(1). — Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel he must provided with one. These rights cannot be waived except in writing and in the presence of counsel.' "It is very clear from the aforequoted provision that a person under investigation for the commission of an offense may choose his own counsel but if he cannot afford the services of counsel, he must be provided with

one. While the initial choice of the lawyer in the latter case is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. In the instant case, the records show that no objection was voiced by the accused throughout the entire proceedings of the investigation and afterwards when he subscribed to its veracity before City Prosecutor Luzminda V. Uy. Thus, he apparently acquiesced to the choice of the investigators. He complained for the first time that Atty. Fuentes was not his choice only during trial. Thus it was too late." Appellant relies on the much abused claim that his extra-judicial confession was legally defective and hence, should not have been admitted and considered by the trial judge. This accusation is whimsical and obviously a mere refuge for appellant's turnabout. In an attempt to avoid criminal liability, he now questions the integrity of the police authorities and the reputation of the lawyer who stood by him during the investigation. Indubitably established and now a matter of record is the fact that appellant was assisted by Atty. Parawan who even signed the former's sworn declarations. It is likewise a matter of record that before appellant made his extra-judicial confession, he was first asked if he was amenable to the services of Atty. Parawan to which query he answered affirmatively. Finally, the alleged use of fore and intimidation has not been substantiated by evidence other than his self-serving testimony. As has been pointed out, such allegation is another naive effort of appellant to back track from his prior voluntary admission of guilt. Evidently, the taking of his extra-judicial confession was done with regularity and legality. Nevertheless, there is merit in appellant's argument that granting he is guilty, what he committed was a political crime of simple rebellion, and hence he should not be convicted of murder with direct assault. The Solicitor General agrees with the accused-appellant on this point as manifested in the People's brief, which We quote: "However, as correctly pointed by appellant, the lower court erroneously convicted him of Murder with Assault Upon a Person in Authority, instead of Rebellion. "Rebellion is committed by taking up arms against the government, among other means. (Article 135, Revised Penal Code). In this case, appellant not only confessed voluntarily his membership with the sparrow unit but also his participation and that of his group in the killing of Pfc. Manatad while manning the traffic in Mandaue City in the afternoon of August 4, 1987. It is of judicial notice that the sparrow unit is the liquidation squad of the New People's Army with the objective of overthrowing the duly constituted government. It is therefore not hard to comprehend that the killing of Pfc. Manatad was committed as a means to or in furtherance of the subversive ends of the NPA. Consequently, appellant is liable for the crime of rebellion, not murder with direct assault upon a person in authority."

The crime of rebellion consists of many acts. It is a vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. 9 The act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot be made a basis of a separate charge. Moreover, in the case of People v. Mangallan 10 We held that where the accused who was charged with murder admitted his membership with the NPA and the killing of a suspected PC informer, the crime committed is not murder but rebellion punishable under Articles 134 and 135 of the Revised Penal Code. As to the proper imposable penalty, the Indeterminate Sentence Law is not applicable to persons convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the Solicitor General. Article 135 of the Revised Penal Code imposes the penalty of prision mayor and a fine not exceeding P20,000.00 to any person who promotes, maintains, or heads a rebellion. However, in the case at bar, there is no evidence to prove that appellant Dasig headed the crime committed. As a matter of fact he was not specifically pinpointed by Pfc. Catamora as the person giving instructions to the group which attacked Pfc. Manatad. Appellant merely participated in committing the act, or just executed the command of an unknown leader. Hence, he should be made to suffer the penalty of imprisonment of eight (8) years of prision mayor. For the resulting death, appellant is likewise ordered to pay the heirs of Pfc. Manatad FIFTY THOUSAND PESOS (P50,000.00) as civil indemnity. Premises considered, We uphold the findings of the trial court that the extra-judicial confession was legally obtained. However, appellant being a confessed member of the sparrow unit, the liquidation squad of the New People's Army whose objective is to overthrow the duly constituted government, the crime committed is simple rebellion and not murder with direct assault. WHEREFORE, accused Rogelio Dasig is found guilty of participating in an act of rebellion beyond reasonable doubt and is hereby sentenced to suffer the penalty of imprisonment of eight (8) years of prision mayor, and to pay the heirs of Pfc. Redempto Manatad, P50,000.00 as civil indemnity.SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 112235 November 29, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELIAS LOVEDIORO y CASTRO, defendant-appellant.

KAPUNAN, J.: Off-duty policeman SPO3 Jesus Lucilo was walking along Burgos St., away from the Daraga, Albay Public Market when a man suddenly walked beside him, pulled a .45 caliber gun from his waist, aimed the gun at the policeman's right ear and fired. The man who shot Lucilo had three other companions with him, one of whom shot the fallen policeman four times as he lay on the ground. After taking the latter's gun, the man and his companions boarded a tricycle and fled. 1 The incident was witnessed from a distance of about nine meters by Nestor Armenta, a 25 year old welder from Pilar, Sorsogon, who claimed that he knew both the victim and the man who fired the fatal shot. Armenta identified the man who fired at the deceased as Elias Lovedioro y Castro, his nephew (appellant's father was his first cousin) and alleged that he knew the victim from the fact that the latter was a resident of Bagumbayan. Lucilo died on the same day of massive blood loss from multiple gunshot wounds on the face, the chest, and other parts of the body. 2 On autopsy, the municipal health officer established the cause of death as hypovolemic shock. 3 As a result of the killing, the office of the provincial prosecutor of Albay, on November 6, 1992 filed an Information charging accused-appellant Elias Lovedioro y Castro of the crime of Murder under Article 248 of the Revised Penal Code. The Information reads: That on or about the 27th day of July, 1992, at more or less 5:30 o'clock in the afternoon, at Burgos Street, Municipality of Daraga, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, together with Gilberto Longasa, who is already

charged in Crim. Case No. 5931 before RTC, Branch I, and three (3) others whose true identities are at present unknown and remain at large, conniving, conspiring, confederating and helping one another for a common purpose, armed with firearms, with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously fire and shoot one SPO3 JESUS LUCILO, a member of the Daraga Police Station, inflicting upon the latter multiple gunshot wounds causing his death, to the damage and prejudice of his legal heirs. After trial, the court a quo found accused-appellant guilty beyond reasonable doubt of the crime of Murder. The dispositive portion of said decision, dated September 24, 1993 states: WHEREFORE, in view of all the foregoing considerations, this Court finds the accused ELIAS LOVEDIORO guilty beyond reasonable doubt as principal, acting in conspiracy with his co-accused who are still at large, of the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences him to suffer the penalty of Reclusion Perpetua with all the accessories provided by law; to pay the heirs of the deceased SPO3 Jesus Lucilo through the widow, Mrs. Remeline Lucilo, the amount of Fifty Thousand (P50,000.00) Pesos representing the civil indemnity for death; to pay the said widow the sum of Thirty Thousand (P30,000.00) Pesos representing reasonable moral damages; and to pay the said widow the sum of Eighteen Thousand Five Hundred Eighty-Eight (P18,588.00) Pesos, representing actual damages, without subsidiary imprisonment however, in case of insolvency on the part of the said accused. With costs against the accused. SO ORDERED. Hence, the instant appeal, in which the sole issue interposed is that portion of trial court decision finding him guilty of the crime of murder and not rebellion. Appellant cites the testimony of the prosecution's principal witness, Nestor Armenta, as supporting his claim that he should have been charged with

the crime of rebellion, not murder. In his Brief, he asseverates that Armenta, a police informer, identified him as a member of the New People's Army. Additionally, he contends that because the killing of Lucilo was "a means to or in furtherance of subversive ends," 4 (said killing) should have been deemed absorbed in the crime of rebellion under Arts. 134 and 135 of the Revised Penal Code. Finally, claiming that he did not fire the fatal shot but merely acted as a look-out in the liquidation of Lucilo, he avers that he should have been charged merely as a participant in the commission of the crime of rebellion under paragraph 2 of Article 135 of the Revised Penal Code and should therefore have been meted only the penalty of prison mayor by the lower court. Asserting that the trial court correctly convicted appellant of the crime of murder, the Solicitor General avers that the crime committed by appellant may be considered as rebellion only if the defense itself had conclusively proven that the motive or intent for the killing of the policeman was for "political and subversive ends." 5 Moreover, the Solicitor General contends that even if appellant were to be convicted of rebellion, and even if the trial court had found appellant guilty merely of being a participant in a rebellion, the proper imposable penalty is not prision mayor as appellant contends, but reclusion temporal, because Executive Order No. 187 as amended by Republic Act No. 6968, the Coup D'etat Law, prescribes reclusion temporal as the penalty imposable for individuals found guilty as participants in a rebellion. We agree with the Solicitor General that the crime committed was murder and not rebellion. Under Art. 134 of the Revised Penal Code, as amended by Republic Act No. 6968, rebellion is committed in the following manner: [B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature wholly or partially, of any of their powers or prerogatives. 6 The gravamen of the crime of rebellion is an armed public uprising against the government. 7 By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within predetermined bounds. 8 One aspect noteworthy in the commission of rebellion is that other acts committed in its pursuance are,

by law, absorbed in the crime itself because they acquire a political character. This peculiarity was underscored in the case of People v. Hernandez, 9 thus: In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance "to the Government the territory of the Philippine Islands or any part thereof," then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter. Divested of its common complexion therefore, any ordinary act, however grave, assumes a different color by being absorbed in the crime of rebellion, which carries a lighter penalty than the crime of murder. In deciding if the crime committed is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated. In such cases, the burden of demonstrating political motive falls on the defense, motive, being a state of mind which the accused, better than any individual, knows. Thus, in People v. Gempes, 10 this court stressed that: Since this is a matter that lies peculiarly with (the accused's) knowledge and since moreover this is an affirmative defense, the burden is on them to prove, or at least to state, which they could easily do personally or through witnesses, that they killed the deceased in furtherance of the resistance movement. From the foregoing, it is plainly obvious that it is not enough that the overt acts of rebellion are duly proven. Both purpose and overt acts are essential components of the crime. With either of these elements wanting, the crime of rebellion legally does not exist. In fact, even in cases where the act complained of were committed simultaneously with or in the course of the rebellion, if the killing, robbing, or etc., were accomplished for private purposes or profit, without any political motivation, it has been held that the crime would be separately punishable as a common crime and would not be absorbed by the crime rebellion. 11

Clearly, political motive should be established before a person charged with a common crime — alleging rebellion in order to lessen the possible imposable penalty — could benefit from the law's relatively benign attitude towards political crimes. Instructive in this regard is the case of Enrile v. Amin, 12 where the prosecution sought to charge Senator Juan Ponce Enrile with violation of P.D. No. 1829, 13 for allegedly harboring or concealing in his home Col. Gregorio Honasan in spite of the senator's knowledge that Honasan might have committed a crime. This Court held, against the prosecution's contention, that rebellion and violation of P.D 1829 could be tried separately 14 (on the principle that rebellion is based on the Revised Penal Code while P.D. 1829 is a special law), that the act for which the senator was being charged, though punishable under a special law, was absorbed in the crime of rebellion being motivated by, and related to the acts for which he was charged in Enrile vs. Salazar (G.R. Nos. 92163 and 92164) a case decided on June 5, 1990. Ruling in favor of Senator Enrile and holding that the prosecution for violation of P.D. No. 1829 cannot prosper because a separate prosecution for rebellion had already been filed and in fact decided, the Court said: The attendant circumstances in the instant case, however constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense. 15 Noting the importance of purpose in cases of rebellion the court in Enrile vs. Amin further underscored that: [I]ntent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political or social motives, that is in furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished separately. It follows, therefore, that if no political motive is established and proved, the accused should be convicted of the common crime and not of rebellion. In cases of rebellion, motive relates to the act, and mere membership in an organization dedicated to the furtherance of rebellion would not, by and of itself, suffice.

The similarity of some of the factual circumstances of People v. Ompad, Jr., 16 to the instant case is striking. Two witnesses, both former NPA recruits identified the accused Ompad, alias "Commander Brando," a known hitman of the NPA, as having led three other members of the NPA in the liquidation of Dionilo Barlaan, a military informer, also in a rebel infested area. In spite of his notoriety as an NPA hitman, Ompad was merely charged with and convicted of murder, not rebellion because political motive was neither alleged nor proved. As stated hereinabove, the burden of proof that the act committed was impelled by a political motive lies on the accused. Political motive must be alleged in the information. 17 It must be established by clear and satisfactory evidence. In People v. Paz and Tica we held: That the killing was in pursuance of the Huk rebellion is a matter of mitigation or defense that the accused has the burden of proving clearly and satisfactorily. The lone uncorroborated assertion of appellant that his superiors told him of Dayrit being an informer, and his suspicion that he was one such, is neither sufficient or adequate to establish that the motivation for the killing was political, considering appellant's obvious interest in testifying to that effect. 18 Similarly, in People v. Buco, 19 the Court stressed that accused in that case failed to establish that the reason for the killing of their victim was to further or carry out rebellion. The evidence adduced by the defense therein simply showed that appellant Francisco Buco was ordered by Tomas Calma, alias "Commander Sol" to kill municipal mayor Conrado G. Dizon. However, the evidence likewise showed that Calma was induced by an acquaintance, a civilian, to order the killing on account of private differences over a ninety (90) hectare piece of land. The court attributed no political motive for the killing, though committed by known members of the Hukbalahap movement. 20 People v. Dasig 21 has a factual milieu almost similar to the instant case. There, the Court held that "the act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of a rebellion." In Dasig the Court however noted that the accused, who was charged with murder, not only admitted his membership with the NPA but also executed an extrajudicial confession to the effect that he was a member of an NPA "sparrow unit," a fact to which even the Solicitor General, in his brief

therein was in agreement. The Solicitor General's brief in Dasig which this Court favorably quoted, noted that: [T]he sparrow unit is the liquidation squad of the New People's Army with the objective of overthrowing the duly constituted government. It is therefore not hard to comprehend that the killing of Pfc. Manatad was committed as a means to or in furtherance of the subversive ends of the NPA. 22 By contrast, the Solicitor General vigorously argues for a different result in the case at bench. He states that accused-appellant's belated claims to membership in the NPA were not only insubstantial but also self serving 23an averment to which, given a thorough review of the circumstances of the case, we fully agree. He states: [In the case cited] the appellants, admittedly members of the NPA, clearly overcame the burden of proving motive or intent. It was shown that the political motivation for the killing of the victim was the fact that Ragaul was suspected as an informer for the PC. The perpetrators even left a letter card, a drawing on the body of Ragaul as a warning to others not to follow his example. It is entirely different in the case at bar where the evidence for the appellant merely contains self-serving assertions and denials not substantial enough as an indicia of political motivation in the killing of victim SPO3 Jesus Lucilo. 24 In the case at bench, the appellant, assisted by counsel, admitted in his extrajudicial confession to having participated in the killing of Lucilo as follows: Q What was that incident if any, please narrate? A July 27, 1992 at more or less 12:00 noon. I am at home, three male person a certainalias ALWIN, ALIAS SAMUEL and the other one unknown to me, fetched me and told me to go with them, so I asked them where, Alwin handed me a hand gun and same he stopped/call a passenger jeepney and told me board on said jeepney. (sic) Q Please continue.

A Upon reaching Daraga, Albay fronting Petron Gasoline Station, we alighted on said jeep, so we walk towards Daraga Bakery we stopped walking due to it is raining, when the rain stopped we continue walking by using the road near the bakery. (sic) Q When you reached Daraga bakery, as you have said in Q. 7 you used the road near the bakery where did you proceed? A I am not familiar with that place, but I and my companion continue walking, at more less 4:30 P.M. July 27, 1992 one of my companion told us as to quote in Bicol dialect, to wit: "AMO NA YADI AN TINAMPO PALUWAS" (This is the place towards the poblacion), so, I placed myself just ahead of a small store, my three (3) companions continue walking towards poblacion, later on a policeman sporting white T-shirt and a khaki pant was walking towards me, while the said policeman is nearly approaching me, ALWIN shot the said policeman in front of the small store, when the said policeman fell on the asphalted road, ALWIN took the service firearm of the said policeman, then we ran towards the subdivision, then my two (2) companions commanded a tricycle then we fled until we reached a hill wherein there is a small bridge, thereafter Ka Samuel took the handgun that was handed to me by them at Pilar, Sorsogon. (sic) Q Do you know the policeman that was killed by your companion? A I just came to know his name when I reached home and heard it radio, that he is JESUS LUCILO. (sic) Q What is your participation in the group? A Look-out sir. Q I have nothing more to asked you what else, if there is any? (sic) A No more sir. 25 It bears emphasis that nowhere in his entire extrajudicial confession did appellant ever mention that he was a member of the New People's Army. A thorough reading of the same reveals nothing which would suggest that the killing in which he was a participant was motivated by a political purpose. Moreover, the information filed against appellant, based on sworn statements, did not contain any mention or allusion as to the involvement of the NPA in the death of SPO3 Lucilo. 26 Even prosecution eyewitness

Nestor Armenta did not mention the NPA in his sworn statement of October 19, 1992. 27 As the record would show, allegations relating to appellant's membership in the NPA surfaced almost merely as an afterthought, something which the defense merely picked up and followed through upon prosecution eyewitness Armenta's testimony on cross-examination that he knew appellant to be a member of the NPA. Interestingly, however, in the same testimony, Armenta admitted that he was "forced" to pinpoint appellant as an NPA member.28 The logical result, of course, was that the trial court did not give any weight and credence to said testimony. The trial court, after all, had the prerogative of rejecting only a part of a witness' testimony while upholding the rest of it. 29 While disbelieving the portion of Armenta's testimony on appellant's alleged membership in the NPA, the trial court correctly gave credence to his unflawed narration about how the crime was committed. 30 Such narration is even corroborated in its pertinent portions, except as to the identity of the gun wielder, by the testimony of the appellant himself. In any case, appellant's claim regarding the political color attending the commission of the crime being a matter of defense, its viability depends on his sole and unsupported testimony. He testified that, upon the prodding of aliasAlwin and alias Samuel, he joined the NPA because of the organization's goals. 31 He claimed that his two companions shot Lucilo because he "had offended our organization," 32 without, however, specifying what the "offense" was. Appellant claimed that he had been a member of the NPA for five months before the shooting incident. 33 As correctly observed by the Solicitor General, appellant's contentions are couched in terms so general and non-specific 34 that they offer no explanation as to what contribution the killing would have made towards the achievement of the NPA's subversive aims. SPO3 Jesus Lucilo, a mere policeman, was never alleged to be an informer. No acts of his were specifically shown to have offended the NPA. Against appellant's attempts to shade his participation in the killing with a political color, the evidence on record leaves the impression that appellant's bare allegations of membership in the NPA was conveniently infused to mitigate the penalty imposable upon him. It is of judicial notice that in many NPA infested areas, crimes have been all-too-quickly attributed to the furtherance of an ideology or under the cloak of political color for the purpose of mitigating the imposable penalty when in fact they are no more than ordinary crimes perpetrated by common criminals. In Baylosis v. Chavez, Jr., Chief Justice Narvasa aptly observed:

The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible or deranged individuals, is a reality that cannot be ignored or belittled. Their activities, the killings and acts of destruction and terrorism that they perpetrate, unfortunately continue unabated despite the best efforts that the Government authorities are exerting, although it may be true that the insurrectionist groups of the right or the left no longer pose a genuine threat to the security of the state. The need for more stringent laws and more rigorous law-enforcement, cannot be gainsaid. 35 In the absence of clear and satisfactory evidence pointing to a political motive for the killing of SPO3 Jesus Lucilo, we are satisfied that the trial court correctly convicted appellant of the crime of murder. 36 It is of no moment that a single eyewitness, Nestor Armenta, sealed his fate, for it is settled that the testimony of one witness, if credible and positive, is sufficient to convict. 37 Against appellant's claims that he acted merely as a look-out, the testimony of one witness, his blood relative, free from any signs of impropriety or falsehood, was sufficient to convict the accused. 38 Moreover, neither may lack of motive be availing to exculpate the appellant. Lack or absence of motive for committing a crime does not preclude conviction, there being a reliable eyewitness who fully and satisfactorily identified appellant as the perpetrator of the felony. 39 In the case at bench, the strength of the prosecution's case was furthermore bolstered by accused-appellant's admission in open court that he and the eyewitness, his own uncle, bore no grudges against each other. 40 Finally, treachery was adequately proved in the court below. The attack delivered by appellant was sudden, and without warning of any kind. 41 The killing having been qualified by treachery, the crime committed is murder under Art. 248 of the Revised Penal Code. In the absence of any mitigating and aggravating circumstances, the trial court was correct in imposing the penalty of reclusion perpetua together with all the accessories provided by law. WHEREFORE, PREMISES CONSIDERED, the trial court's decision dated September 14, 1993, sentencing the accused of Murder is hereby AFFIRMED, in toto.SO ORDERED. Republic of the Philippines SUPREME COURT Manila

EN BANC March 4, 1922 G.R. No. 17748 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. GRACIANO L. CABRERA, ET AL., defendants-appellants. Vicente Sotto for appellants. Acting Attorney-General Tuason for appellee MALCOLM, J.: As one outcome of the tumultous uprising of certain members of the Philippine Constabulary to inflict revenge upon the police of the city of Manila, charges of sedition were filed in the Court of First Instance of the city of Manila against the participants in the public disturbance. Convicted in the trial court of a violation of Act No. 292 of the Philippine Commission, and sentenced either to the maximum penalty or a near approach to the maximum penalty provided by the punitive provisions of that law, all of the defendants have perfected an appeal to this court. A statement of the case and of the facts, an opinion on the pertinent issues, and a judgement, if no reversible error be found, regarding the appropriate penalty, will be taken up in the order named. STATEMENT OF THE CASE AND OF THE FACTS On December 13, 1920, policemen of the city of Manila arrested a woman who was a member of the household of a Constabulary soldier stationed at the Santa Lucia Barracks in this city. The arrest of the woman was considered by some of the Constabulary soldiers as an outrage committed by the policemen, and it instantly gave rise to friction between members of Manila police department and member of the Philippine Constabulary. The next day, December 14, at about sunset, a policemen named Artemio Mojica, posted on Calle Real, in the District of Intramuros, city of Manila, had an encounter with various Constabulary soldiers which resulted in the shooting of private Macasinag of the Constabulary. Private Macasinag was seriously, and as afterwards appeared, mortally wounded. The encounter between policemen Mojica and other companions of the Manila force and private Macasinag and other companions of the

Constabulary, with its grave consequences for a Constabulary soldier endangered a deep feeling of resentment on the part of the soldiers at Santa Lucia Barracks. This resentment was soon converted into a desire for revenge against the police force of the city of Manila. The officers of the Constabulary appear to have been aware of the state of excitement among the soldiers the shooting of private Macasinag, Captain Page, the commanding officer of the Barracks, increased the number of guards, and confined all the soldiers in the Barracks. During the afternoon of the next day, December 15, 1920, a rumor spread among the soldiers in Santa Lucia Barracks to the effect that policeman Mojica was allowed to continue on duty on the streets of Intramuros and that private Macasinag had died as a consequence of the shot he received the night before. This rumor contributed in no small degree in precipitating a movement for reprisal by the Constabulary soldiers against the policemen. At about 7 o'clock in the evening of the same day, December 15, 1920, corporal Ingles of the Fourth Company approached private Nicolas Torio who was then the man in charge of quarters, and asked him to let the soldiers out through the window of the quarters of the Fourth Company. Private Torio was easily persuaded to permit private Francisco Garcia of the Second Company to saw out the window bars of the quarters, in his charge, and to allow soldiers to escape through the window with rifles and ammunition under the command of their sergeants and corporals. When outside of the quarters, these soldiers divided into groups for attack upon the city police force. One platoon of Constabulary soldiers apparently numbering about ten or twelve, on Calle Real, Intramuros, fired in the direction of the intersection of Calles Real and Cabildo where an American policeman named Driskill was stationed, and was taking with a friend named Jacumin, a field clerk in the United States Army. These two men were shot and died soon afterwards. To the credit of policeman Driskill be it said, that although in a dying condition and in the face of overwhelming odds, her valiantly returned the fire with his revolver. Jacumin was killed notwithstanding that in response to the command of Constabulary, "Hands up!," he elevated both arms. A street car happened to stop at this time at the corner of Calles Real and Cabildo. Without considering that the passengers in the car were innocent passersby, the Constabulary squad fired a volley into the car, killing instantly the passenger named Victor de Torres and gravely wounding three other civilian passengers, Gregorio Cailes, Vicente Antonio, and

Mariano Cortes. Father Jose Tahon, a priest of the Cathedral of Manila, proved himself a hero on this occasion for, against the command of the Constabulary, he persisted in persuading them to cease firing and advanced in order that he might administer spiritual aid to those who had been wounded. The firing on Calle Real did not end at that time. Some minutes later, Captain William E. Wichman, assistant chief of police of the city of Manila, riding in a motorcycle driven by policeman Saplala, arrived at the corner of Calles Real and Magallanes in Intramuros, and a volley of shorts by Constabulary soldiers resulted in the instantaneous death of Captain Wichman and the death shortly afterwards of patrolman Saplala. About the same time, a police patrol came from the Meisic police station. When it was on Calle Real near Cabildo, in Intramuros, it was fired upon by Constabulary soldiers who had stationed themselves in the courtyard of the San Agustin Church. This attack resulted in the death of patrolmen Trogue and Sison. Another platoon of the Constabulary, between thirty and forty in number, had in the meantime, arranged themselves in a firing line on the Sunken Gradens on the east side of Calle General Luna opposite the Aquarium. From this advantageous position the Constabulary fired upon the motorcycle occupied by Sergeant Armada and driven by policeman Policarpio who with companions were passing along Calle General Luna in front of the Aquarium going in the direction, of Calle Real, Intramuros. As a result of the shooting, the driver of the motorcycle, policeman Policarpio, was mortally wounded. This same platoon of Constabulary soldiers fired several volleys indiscriminately into the Luneta police station, and the office of the secret service of the city of Manila across Calles General Luna and Padre Burgos, but fortunately no one was injured. General Rafael Crame, Chief of the Constabulary, and Captain Page, commanding officer of the Santa Lucia Barracks, and other soldiers in the streets of Manila, and other soldiers one after another returned to the Barracks where they were disarmed. No list of the names of these soldiers was, however, made. In the morning of the next day, December 16, 1920, Colonel, Lucien R. Sweet of the Constabulary officers, and later by the fiscals of the city of Manila, commenced an investigation of the events of the night before. He first ordered that all the soldiers in Santa Lucia Barracks at that time, numbering some one hundred and eighty, be assembled on the parade ground and when this was done, the soldiers were separated into their

respective companies. Then Colonel Sweet, speaking in English with the assistance of Captain Silvino Gallardo, who interpreted his remarks into Tagalog, made to all of the soldiers two statements. What occurred on the occasion above described can best be told in the exact language of Colonel Sweet: "I assembled all four companies in Santa Lucia Barracks and asked them to tell me which ones had been out the night before and which ones had participated in the shooting, which they did, and to tell me the names of those who were with them and who were not then present, which they did. I think there were seventy-two (seventythree) present and they named five (four) others." Again the witness said: "At first I asked all those who went out on the previous night for any purpose whatever to signify the fact by stepping forward and gave them five minutes to think it over before doing so. To those who stepped forward that had gone out for any purpose whatever I asked those who took part in the shooting the night before that in justice to themselves and to the other men who had not taken part in it, and for the good of all concerned, that they step forward and they did." The names of the four who took part (not five as stated by Colonel Sweet), but ho were taken to present, were noted by Captain Gallardo. The statements of the seventy-seven soldiers were taken in writing during the afternoon of the same day, December 16. The questionnaire prepared by the fiscal of the city of Manila was in English or Spanish. The questions and answers were, however, when requested by the soldiers, translated not their dialects. Each statement was signed by the soldier making it in the presence of either two or three witnesses. Although the answers to the questions contained these statements vary in phraseology, in substance they are the same. One of them, the first in numerical order, that of Sergeant Graciano L. Cabrera, taken in Spanish and interpreted into Tagalog, may be selected into Tagalog, may be selected as typical of the rest, and is here literally transcribed: 1. Give your name, age, status, occupation, and residence. — Graciano I. Cabrera, 254 years of age, single, sergeant of the first company of the General Service of the Constabulary, residing in Santa Lucia Barracks. 2. To what company of the Philippine Constabulary do you belong? — First Company, General Service of the Constabulary.] 3. Where were you garrisoned yesterday afternoon December 15, 1920? — In the Santa Lucia Barracks.

4. Did you leave the barracks at about 7 o'clock yesterday evening? — Yes, sir. 5. For what reason, and where did you go? — We went in search of the policemen and secret service men of Manila. It has been sometime now since we have been having standing grudge against now since we have been having a standing grudge against the police of Manila. The wife of one of our comrades was first arrested by the policemen and then abused by the same; and not content with having abused her, they gave this woman to an American; after this incident, they arrested two soldiers of the Constabulary, falsely accusing them of keeping women of bad reputation; after this incident, came the shooting of Macasinag, a shooting not justified, because we have come to know that Macasinag did nothing and the policemen could have arrested him if they desired. Moreover, the rumor spread among us that the police department of Manila had given orders to the policemen to fire upon any Constabulary soldier they found in the streets, and we believe that the rumor was not without foundation since we noticed that after the Macasinag affair, the policemen of Manila, Contrary to the usual practice, were armed with carbines or shotguns. For this reason we believe that if we did not put an end to these abuses of the policemen and secret service men, they would continue abusing the constabulary. And as an act of vengeance we did what we had done last night.

11. Do you know if you hit any policeman or any other person?-If so state whether the victim was a policeman or a civilian. — I cannot tell whether I hit any policeman or any civilian. 12. State the streets of the city where you fired shots. — I cannot given an exact account of the streets where I fired my gun. I had full possession of my faculties until I reached Calle Victoria; afterwards, I became aware that I was bathed with perspiration only upon reaching the barracks. 13. What arms were you carrying and how much ammunition or how many cartidge did you use? — I Carried a carbine; I cannot tell precisely the number of cartridges I used; however, I placed in my pocket the twenty cartridges belonging to me and I must have lost. 14. How did you manage to leave the barracks? — By the window of the quarter of the Fourth Company, through the grating which I found cut off. 15. Are the above statements made by you, voluntarily, freely, and spontaneously given? — Yes, sir. 16. Do you swear to said statements although no promise of immunity is made to you? — Yes, sir; I confirm them, being true.

6. How did you come to join your companions who rioted last night? — I saw that almost all the soldiers were jumping through the window and I was to be left alone in the barracks and so I followed.

(Sgd.) G. L. CABRERA.

7. Who asked you to join it? — Nobody.

S. GALLARDO. LAURO C. MARQUEZ.

8. Do you know private Crispin Macasinag, the one who was shot by the Manila police the night before last on Calle Real? — Yes, Sir, I know him because he was our comrade. 9. Were you offended at the aggression made on the person of said soldier? — Indeed, yes, not only was I offended, but my companions also were. 10. State how many shots you fired, if nay, during the riot last night. — I cannot tell precisely the number of shots I fired because I was somewhat obfuscated; all I can assure you is that I fired more than once.

Witnesses:

The defendants were charged in one information filed in the Court of First Instance of the City of Manila with the crime of sedition, and in another information filed in the same, court, with the crimes of murder and serious physical injuries. The two cases were tried separately before different judges of first instance. All of the accused, with the exception of eight, namely, Francisco Ingles, Juan Noromor, P. E. Vallado., Dionisio Verdadero, and Paciano Caña, first pleased guilty to the charge of sedition, but later, after the first witness for the prosecution had testified, the accused who had pleaded guilty were permitted, with the consent of the court, to substitute therefor the plea of not guilty. the prosecution, in making out it case, presented the seventyseven confession of the defendants, introduced in evidence as Exhibits C to

C-76, conclusive, and with the exception of those made by Daniel Coralde, Nemesio Gamus, and Venancio Mira, all were identified by the respective Constabulary officers, interpreters, and typists who intervened in taking them. The prosecution further relied on oral testimony, including eyewitness to the uprising. The attorneys for the accused presented two defenses. The first defense was in favor of all the defendants and was based on the contention that the written statements Exhibits C to C-76 were not freely and voluntarily made by them. The second defense was in favor of the defendants Vicente Casimiro, Salvador Gregorio, Roberto Palabay, Cipriano Lizardo, Ildefonso de la Cruz, Roque Ebol, Francisco Garcia, Benigno Tagavilla, Paciano Caña, Juan Abarques, Genaro Elayda, Hilario Hibabar, P. E. Vallado, Patricio Bello, Felix Liron, Bonifacio Eugenio, Nemesio Deceña, Venancio Mira, Baldomero Rodriguez, Juan Noromor, Maximo Perlas, and Victor Atuel, and was to the effect these men did not take part in the riot. The court overruled the special defenses and found that the guilt of the accused had been proved beyond a reasonable doubt. All of the defendants were sentenced to serve the maximum imprisonment of ten years provided by section 6 of Act No. 292. The court, however, distinguished fines from that of a defendants Francisco Garcia, a private and the eight corporals E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Juan Abarques, Pedro V. Matero, Juan Regalado, Hilario Hibalar and Genaro Elayda, upon each of whom a fine of P5,000 was imposed, and of the three sergeants Graciano L. Cabrera, Pascual Magno, and Bonifacio Eugenio, upon each of whom a fine of P10,000 was imposed. The costs were divided proportionately among the defendants. For the statement of the cases and the facts which has just been made, we are indebted in large measure to the conspicuously fair and thoughtful decisions of the Honorable George R. Harvey who presided in the sedition case and of the Honorable Carlos Imperial who presided in the murder case. As stipulated by the Attorney-General and counsel for the defendants, the proof is substantially the same in both cases. In all material respects we agree with the findings of fact as made by the trial court in this case. The rule is again applied that the Supreme Court will not interfere with the judgement of the trial court in passing upon the credibility of the opposing witnesses, unless there appears in the record some fact or circumstances of weight and influence which has been overlooked or the significance of which has been misinterpreted. (U. S. vs. Ambrosio and Falsario [1910], 17 Phil., 295; U. S. vs. Remegio [1918], 37

Phil., 599.) In the record of the case at bar, no such fact or circumstance appears. OPINION An assignment of five errors is made by counsel for the defendants and appellants. Two the assignment of error merit little or no consideration. Assignment of error No. 2 (finding its counterpart in assignments of error 5 and 6 in the murder case), in which it is attempted to establish that Vicente Casimiro, Salvador Gregorio, Paciano Caña, Juan Abarquez, Mariano Garcia, Felix Liron, Bonifacio Eugenio, Patricio Bello, Baldomero Rodriguez, Roberto Palabay, Juan Noromor, Roque Ebol, Ildefonso de la Cruz, Cipriano Lizardo, Francisco Garcia, Genaro Elayda, Hilario Hibalar, P. M. Vallado, Maximo Perlas, and Benigno Tagavilla, did not leave the Santa Lucia Barracks in the night of the tragedy, is predicated on the special defense raised in the lower court for these defendants and three other and which was found untenable by the trial court. Any further discussion of this question falls more appropriately under consideration of assignment of error No. 4, relating to the conspiracy between the accused. Assignment of error No. 3, relating to the finding of the trial court that it had not been shown that the policemen were not aware of the armed attack of the Constabulary, However, we find that the evidence supports this conclusion of the trial court. The three pertinent issues in this case relate to: (1) the Admission of Exhibits C to C-76 of the prosecution (assignment of error No. 2, murder case); (2) the conspiracy between the accused (assignment of error No. 4, sedition case; assignment of error No. 3, murder case); and (3) the conviction of the accused of a violation of the Treason and Sedition Law (assignment of error No. 5, sedition case). 1. The admission of exhibits C to C-76 Appellants claim that fraud and deceit marked the preparation of the seventy seven confessions. It is alleged that some of the defendants signed the confessions under the impression that those who had taken part in the affray would be transferred to Mindanao, and that although they did not in fact so participate, affirmed that they because of a desire to leave Manila; that other stepped forward "for the good of the service" in response to appeals from Colonel Sweet and other officers; while still others simply didn't understand what they were doing, for the remarks of Colonel Sweet were made in English and only translated into Tagalog, and

their declarations were sometime taken in al language which was unintelligible to them. Counsel for the accused entered timely objection to the admission in evidence of Exhibits C to C-76, and the Attorney-General is worn in stating otherwise. Section 4 of Act No. 619, entitle "An Act to promote good order and discipline in the Philippines Constabulary," and reading: "No confession of any person charged with crime shall be received as evidence against him by any court of justice unless be first shown to the satisfaction of the court that it was freely and voluntarily made and not the result of violence, intimidation, threat, menace or of promises or offers of reward or leniency," was repealed by the first Administrative Code. But the same rule of jurisprudence continues without the law. As he been repeatedly announced by this and other courts, "the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort". If the confession is freely and voluntarily made, it constitutes one of the most effectual proofs in the law against the party making it. (Wilson vs. U. S.[1896], 162 U. S. 613.)The burden of proof that he confession was not voluntarily made or was obtained by undue pressure is on the accused. (U. S. vs Zara [1912, 42 Phil., 308.) What actually occurred when the confessions were prepared is clearly explained in the records. The source of the rumor that the defendant would be transferred to Mindanao if they signed the confession is not established. One the contrary it is established that before the declaration were taken, Lieutenant Gatuslao in response to a query had shown the improbability of such a transfer. With military orders given in English and living in the city of Manila where the dialect is tagalog, all of the defendants must have understood the substantial part of Colonel Sweet's remarks. What is more important, there could be no misunderstanding as to the contents of the confessions as written down. In open court, sixty-nine of the defendants reiterated their guilt. The officers who assisted in the investigation were of the same service as the defendants in their own men. It must also be remembered that each and everyone of the defendants was a member of the Insular Police force. Because of the very nature of their duties and because of their practical experience, these Constabulary soldiers must have been aware of the penalties meted out for criminal offenses. Every man on such a momentous occasion would be more careful of his actions than ordinarily and whatever of credulity there is in him, would for the moment be laid aside. Over and above all desire for a more exciting life, over and above the so called esprit de corps, is the instinct of self preservation which could not but be fully aroused by such stirring incidents too recent to be forgotten as had occurred in this case, and which

would counsel prudence rather than rashness; secretiveness rather than garrulity. These confessions contain the statements that they were made freely and voluntarily without any promise of immunity. That such was the case was corroborated by the attesting witnesses whose credibility has not been successfully impeached. We rule that the trial court did not err in admitting Exhibits C to C-76 of the prosecution. 2. The conspiracy between the accused The contention of the appellants is that evidence is lacking of any supposed connivance between the accused. Counsel emphasizes that in answer to the question in the confession, "who asked you to join the riot," each of the accused answered, "Nobody." The argument is then advanced that the appellants cannot be held criminally responsible because of the so called psychology of crowds theory. In other words, it is claimed that at the time of the commission of the crime the accused were mere automatons obeying the insistent call of their companions and of their uniform. From both the negative failure of evidence and the positive evidence, counsel could deduce the absence of conspiracy between the accused. The attorney-General answers the argument of counsel by saying that conspiracy under section 5 of Act No. 292 is not an essential element of the crime of sedition. In this law officer for the people may be on solid ground. However, this may be, there is a broader conception of the case which reaches the same result. It is a primary rule that if two or more persons combine to perform a criminal act, each is responsible for all the acts of the other done in furtherance of the common design; and " the result is the same if the act is divided into parts and each person proceed with his part unaided." (U. S. vs Maza [1905], 5 Phils., 346; U. S. vs. Remegio [1918] 37 Phil., 599; decision of supreme court of Spain of September 29, 1883; People vs. Mather [1830], 4 Wendell, 229.) Conspiracies are generally proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. It be proved that the defendants pursued by their acts the same object, one performing one part and another part of the same, so as to complete it, with a view to the attainment of that same object, one will

be justified in the conclusion that they were engaged in a conspiracy to effect that object. (5 R. C. L., 1088.) Applied to the facts before us, it is incontestable that all of the defendants were imbued with the same purpose, which was to avenge themselves on the police force of the city of Manila. A common feeling of resentment animated all. A common plan evolved from their military training was followed. The effort to lead the court into the realm of psychology and metaphysics is unavailing in the face of actualities. The existence of a joint assent may be reasonably inferred from the facts proved. Not along are the men who fired the fatal shots responsible, not along are the men who admit firing their carbines responsible, but all, having united to further a common design of hate and vengeance, are responsible for the legal consequences therefor. We rule that the trail court did not err in declaring that there a c conspiracy between the accused. 3. The conviction of the accused of a violation of the Treason and Sedition Law Sedition, in its more general sense, is the raising of commotions or disturbances in the State. The Philippine law on the subject (Act No. 292) makes all persons guilty of sedition who rise publicly and tumultuously in order to obtain by force or outside of legal methods any one of vie objects, including that of inflicting any act of hate or revenge upon the person or property of any official or agent of the Insular Government or of Provincial or Municipal Government. The trial court found that the crime of sedition, as defined and punished by the law, had been committed, and we believe that such finding is correct. Counsel's contention that in order for there to be a violation of subdivision 3 of section 5 of Act No. 292 it is and necessary that the offender should be a private citizen and the offended party a public functionary, and that what really happened in this instance was a fight between two armed bodies of the Philippine Government, is absolutely without foundation. Subdivison 3 of section 5 of the Treason and Sedition Law makes no distinction between the persons to which it applies. In one scene there was a fights between two armed bodies of the Philippine Government, but it was an unequal fight brought on by the actions of the accused.

We rule that the trial court did not err in convicting the accused of the violation of section 5, paragraph 3, of Act No. 292 of the Philippine Commission. JUDGEMENT The Treason and Sedition Law provides as a penalty for any person guilty of sedition as defined in section 5 of the law, punishment by fine of not exceeding P10,000 or by imprisonment not exceeding ten years, or both. In this connection, it will be recalled that the court sentenced each of the private soldiers Salvador Gregorio, Juan Noromor, Patricio Bello, Nemesio Deceña, Baldomero Rodriguez, P. E. Vallado, Pedro Layola, Felix Liron (Cenon), Dionisio Verdadero, Lorenzo Tumboc, Casiano Guinto, Victor Atuel, Venancio Mira, Benigno Tagavilla, Masaway, Quintin Desierto, Teofilo Llana, Timoteo Opermaria, Maximo Perlas, Cornelio Elizaga, Roberto Palabay, Roque Ebol, Benito Garcia, Honorio Bautista, Crisanto Salgo, Francisco Lusano, Marcelino Silos, Nicanor Perlas, Patricio Rubio, Mariano Aragon, Silvino Ayngco, Guillermo Inis, Julian Andaya, Crispin Mesalucha, Prudencio Tasis, Silvino Bacani, Petronilo Antonio, Domingo Peroche, Florentino Jacob, Paciano Caña, Domingo Canapi, Arcadio San Pedro, Daniel Coralde, Nemesio Camas, Luis Borja, Severino Elefane, Vicente Tabien, Marcos Marquez, Victorino Merto, Bernabe Sison, Eusebio Cerrudo, Julian Acantilado, Ignacio Lechoncito, Pascual Dionio, Marcial Pelicia, Rafael Nafrada, Zacarias Bayle, Cipriano Lizardo, Ildefonso de la Cruz, Juan Miranda, Graciano Zapata, Felisardo Favinal, Gaspar Andrade, Felix Lamsing, and Vicente Casimiro, to suffer imprisonment for ten years, and to pay one seventy-seventh part of the costs; the private Francisco Garcia, who sawed the bars of the window through which the defendants passed from Santa Lucia Barracks and each of the corporals E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Juan Abarquez, Pedro V. Mateo, Juan Regalado, Hilario Hibalar and Genaro Elayda, to suffer imprisonment for ten years and to pay a fine of P5,000 and one seventy-seventy of the costs; and each of the sergeants Graciano L. Cabrera, Pascual Magno, and Bonifacio Eugenio, to suffer imprisonment for ten years and to pay a fine of P10,000 and one seventy-seventy of the costs. The trial judge appears to have made a reasonable exercise of the discretion which the law reposes in him. We cannot bring to a close this disagreeable duty without making our own the pertinent observations found in the decision of the trial court in this case. Therein, along toward the closed of his learned opinion, Judge Harvey said:

Rarely in the history of criminality in this country has there been registered a crime so villainous as that committed by these defendants. The court is only concerned in this case with crime of sedition. The maximum penalty prescribed by Act No. 292, imprisonment for ten year and a fine P10,000, is not really commensurate with the enormity of the offense. Impelled by hatred, employing their knowledge of military sciences which is worthy of a better cause, and in disregard of the consequences to themselves and their innocent loved ones, and using the means furnished to them by the Government for the protection of life and property, they sought by force and violence and outside of legal methods to avenge a fancied wrong by an armed and tumultuous attack upon officials and agents of the government of the city of Manila. Although in view of the sentence which is being handed down in the murder case, affecting these same defendants and appellants, it would seem to be a useless formality to impose penalties in this case, yet it is obviously our duty to render judgement appealed from, with one seventyseventh of the costs of this instance against each appellant. So ordered. EN BANC G.R. No. L-1451 March 6, 1906 THE UNITED STATES,Plaintiff-Appellee, vs. AURELIO TOLENTINO,Defendant-Appellant. Rafael Palma and Gibbs and Kincaid for appellant. Office of the Solicitor-General Araneta for appellee. CARSON, J.: Aurelio Tolentino, the appellant in this case, was convicted upon an information charging him with the crime of "uttering seditious words and writings, publishing and circulating scurrilous libels against the Government of the United States and the Insular Government of the Philippine Islands, committed as follows: That said Aurelio Tolentino, on or about the 14th day of May, 1903, in the city of Manila, Philippine Islands, did unlawfully utter seditious words and speeches and did write, publish, and circulate scurrilous libels against the Government of the United States and the Insular Government of the Philippine Islands, which tend to obstruct the lawful officers of the United States and the Insular

Government of the Philippine Islands in the execution of their offices, and which tend to instigate others to cabal and meet together for unlawful purposes, and which suggest and incite rebellious conspiracies and riots, and which tend to stir up the people against the lawful authorities and to disturb the peace of the community and the safety and order of the Government of the United States and the Insular Government of the Philippine Islands, which said seditious words and speeches are false and inflammatory, and tend to incite and move the people to hatred and dislike of the government established by law within the Philippine Islands, and tend to incite, move, and persuade great numbers of the people of said Philippine Islands to insurrection, riots, tumults, and breaches of the public peace; which said false, seditious, and inflammatory words and scurrilous libels are in Tagalog language in a theatrical work written by said Aurelio Tolentino, and which was presented by him and others on the said 14th day of May, 1903, at the "Teatro Libertad," in the city of Manila, Philippine Islands, entitled 'Kahapon Ñgayon at Bukas' (Yesterday, To-day, and Tomorrow). An exact translation of the said drama is included in the information, and various parts thereof are specially assigned, which, in the opinion of the prosecution, were more especially in violation of the statute in such cases made and provided.chanroblesvirtualawlibrary chanrobles virtual law library It was proven at the trial beyond a reasonable doubt that the accused did in fact write the drama and the announcement thereof, substantially as set out in the information, and did, with other members of a theatrical company, of which he was director, utter and publish the same substantially in manner and form as charged, and as we understand it, the only question for decision is whether, in writing, publishing, and uttering the drama, the accused was in fact guilty of a violation of section 8 of Act No. 292 of the Philippine Commission, upon which the information was based.chanroblesvirtualawlibrary chanrobles virtual law library This section is as follows: Every person who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands, or which tend to disturb or obstruct any lawful officer in executing his office, or which tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices, shall be punished by a fine not

exceeding two thousand dollars or by imprisonment not exceeding two years, or both, in the discretion of the court. Counsel discussed at some length the question whether the drama or any part of it was of a "scurrilous" nature in the legal acceptation of the word, but for the purposes of this decision we do not deem it necessary to make a finding on this point. In the case of the United States vs. Fred L. Dorr and Edward F. O'Brien, 1 decided May 19, 1903, this court said: The complaint appears to be framed upon the theory that a writing, in order to be punishable as a libel under this section, must be of a scurrilous nature and directed against the Government of the United States or the Insular Government of the Philippine Islands, and must, in addition, tend to some one of the results enumerated in the section, the article in question being described in the complaint as "a scurrilous libel against the Government of the United States and the Insular Government of the Philippine Islands, which tends to obstruct the lawful officers of the United States and the Insular Government of the Philippine Islands in the execution of their offices, and which tends to instigate others to cabal and meet together for unlawful purposes, and which suggests and incites rebellious conspiracies, and which tends to stir up the people against the lawful authorities, and which disturbs the safety and order of the Government of the United States and the Insular Government of the Philippine Islands." But it is a "a well-settled rule in considering indictments that where an offense may be committed in any of several different modes, and the offense, in any particular instance, is alleged to have been committed in two or more modes specified, it is sufficient to prove the offense committed in any one of them, provide that it be such as to constitute the substantive offense." (Com. vs. Kneeland, 20 Pick. Mass. 206, 215), and the defendants may, therefore, be convicted if any one of the substantive charges into which the complaint may be separated has been made out.chanroblesvirtualawlibrary chanrobles virtual law library Several allied offenses or modes of committing the same offense are define in that section, viz: (1) The uttering of seditious words or speeches; (2) the writing, publishing, or circulating of scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands; (3) the writing, publishing, or circulating of libels which tend to disturb or obstruct any lawful officer in executing his office; (4) or which tend to instigate others to cabal or meet together for unlawful purposes; (5) or which suggest or incite rebellious conspiracies or riots; (6) or which tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government; (7) knowingly concealing such evil practices.

In accordance with the principles laid down in the preceding paragraph the judgment of conviction in this case must be sustained, if it appears from the evidence in the record that the accused was guilty as charged of any one of those offenses. We are all agreed that the publication and presentation of the drama directly and necessarily tend to instigate others to cabal and meet together for unlawful purposes, and to suggest and incite rebellious conspiracies and riots and to stir up the people against the lawful authorities and to disturb the peace of the community and the safety and order of the Government.chanroblesvirtualawlibrary chanrobles virtual law library The manifest, unmistakable tendency of the play, in view of the time, place, and manner of its presentation, was to inculcate a spirit of hatred and enmity against the American people and the Government of the United States in the Philippines, and we are satisfied that the principal object and intent of its author was to incite the people of the Philippine Islands to open and armed resistance to the constituted authorities, and to induce them to conspire together for the secret organization of armed forces, to be used when the opportunity presented itself, for the purpose of overthrowing the present Government and setting up another in its stead.chanroblesvirtualawlibrary chanrobles virtual law library Counsel for the appellant insists that the intent of the accused to commit the crime with which he is charged does not appear from the evidence of record, and that the drama is, in itself, a purely literary and artistic production wherein the legendary history of these Islands and their future, as imagined by the author, are presented merely for the instruction and entertainment of the public.chanroblesvirtualawlibrary chanrobles virtual law library This contention can not be maintained. The public presentation of the drama took place in the month of May, 1903, less than two years after the establishment of the Civil Government. The smouldering embers of a widespread and dangerous insurrection were not yet entirely extinguished, and here and there throughout the Islands occasional outbreaks still required the use of the armed forces of the Government for their suppression. A junta in the city of Hongkong, composed of persons whose announced purpose and object in organizing was the overthrow of the present Government, was actively engaged in the endeavor to keep the people of these Islands from peaceably accepting the authority of that Government, and this junta, acting with confederates in the Philippines, was still able to keep alive a certain spirit of unrest and uncertainty which it hoped to fan into open revolt and rebellion at the first favorable opportunity.chanroblesvirtualawlibrarychanrobles virtual law library

The manner and form in which the drama was presented at such a time and under such conditions, renders absurd the pretense that it was merely or even principally a literary or artistic production, and the clumsy devices, the allegorical figures, the apparent remoteness, past and future, of the events portrayed, could not and in fact were not intended to leave the audience in doubt as to its present and immediate application, nor should they blind this court to the true purpose and intent of the author and director of the play.chanroblesvirtualawlibrary chanrobles virtual law library It is further contended that even though the accused were in fact guilty as charged, the court erred in imposing an excessive and unjust penalty, and in fixing the amount of the fine in dollars instead of Philippine currency. As to the latter objection it is sufficient to say that the use of the word "dollars" was in strict conformance with the words of the statute, and that the equivalent of that word in Philippine currency is fixed by law. The penalty was within the limits prescribed by law, and we are not prepared to hold that the trial court erred in the exercise of its discretion in imposing it.chanroblesvirtualawlibrary chanrobles virtual law library The judgment and sentence appealed from is affirmed, with the costs against the appellant. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2990

December 17, 1951

OSCAR ESPUELAS Y MENDOZA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. Carlos P. Garcia, Cosme P. Garcia and B.E. Enerio for petitioner. Office of the Solicitor Jesus A. Avanceña for respondent.

BENGZON, J.:

Article 142 of the Revised Penal Code punishes those who shall write, publish or circulate scurrilous libels against the Government of the Philippines or any of the duly constituted authorities thereof or which suggest or incite rebellious conspiracies or riots or which tend to stir up the people againts the lawful authorities or to disturb the peace of the community. The appellant Oscar Espuelas y Mendoza was, after trial, convicted in the Court of First Instance of Bohol of a violation of the above article. The conviction was affirmed by the Court of Appeals, because according to said court. "About the time compromised between June 9 and June 24, 1947, both dates inclusive, in the town of Tagbilaran, Bohol, Oscar Espuelas y Mendoza had his picture taken, making it to appear as if he were hanging lifeless at the end of a piece of rope suspended form the limb of the tree, when in truth and in fact, he was merely standing on a barrel (Exhibit A, C-I). After securing copies of his photograph, Espuelas sent copies of same to several newspapers and weeklies of general circulation (Exhibit C, F, G, H, I), not only in the Province of Bohol but also throughout the Philippines and abroad, for their publication with a suicide note or letter, wherein he made to appear that it was written by a fictitious suicide, Alberto Reveniera and addressed to the latter's supposed wife translation of which letter or note in hereunder reproduced: Dearest wife and children, bury me five meters deep. Over my grave don't plant a cross or put floral wreaths, for I don't need them. Please don't bury me in the lonely place. Bury me in the Catholic cemetery. Although I have committed suicide, I still have the right to burried among Christians. But don't pray for me. Don't remember me, and don't feel sorry. Wipe me out of your lives. My dear wife, if someone asks to you why I committed suicide, tell them I did it because I was not pleased with the administration of Roxas. Tell the whole world about this. And if they ask why I did not like the administration of Roxas, point out to them the situation in Central Luzon, the Leyte.

Dear wife, write to President Truman and Churchill. Tell them that here in the Philippines our government is infested with many Hitlers and Mussolinis.lawphil.net Teach our children to burn pictures of Roxas if and when they come across one. I committed suicide because I am ashamed of our government under Roxas. I cannot hold high my brows to the world with this dirty government. I committed suicide because I have no power to put under Juez de Cuchillo all the Roxas people now in power. So, I sacrificed my own self. The accused admitted the fact that he wrote the note or letter above quoted and caused its publication in the Free Press, the Evening News, the Bisayas, Lamdang and other local periodicals and that he had impersonated one Alberto Reveniera by signing said pseudonymous name in said note or letter and posed himself as Alberto Reveniera in a picture taken wherein he was shown hanging by the end of a rope tied to a limb of a tree." The latter is a scurrilous libel against the Government. It calls our government one of crooks and dishonest persons (dirty) infested with Nazis and a Fascistis i.e. dictators. 1

And the communication reveals a tendency to produce dissatisfaction or a feeling incompatible with the disposition to remain loyal to the government. 2 Writings which tend to overthrow or undermine the security of the government or to weaken the confidence of the people in the government are against the public peace, and are criminal not only because they tend to incite to a breach of the peace but because they are conducive to the destruction of the very government itself (See 19 Am. Law Rep. 1511). Regarded as seditious libels they were the subject of criminal proceedings since early times in England. (V op. cit.). As explained by Paterson, 3 ". . . the great factors of government, consisting of the Sovereign, the Parliament, the ministers of state, the courts of justice, must be recognized as holding functions founded on sound principles and to be defended and treated with an established and well-

nigh unalterable respect. Each of these great institutions has peculiar virtues and peculiar weaknesses, but whether at any one time the virtue or the weakness predominates, there must be a certain standard of decorum reserved for all. Each guarded remonstrance, each fiery invective, each burst of indignation must rest on some basis of respect and deference towards the depository, for the time being, of every great constitutional function. Hence another limit of free speech and writing is sedition. And yet within there is ample room and verge enough for the freest use of the tongue and pen in passing strictures in the judgment and conduct of every constituted authority." Naturally, when the people's share in the government was restricted, there was a disposition to punish even mild criticism of the ruler or the departments of government. But as governments grew to be more representative, the laws of sedition became less drastic and freedom of expression strife continue to be prohibited. The United States punished seditious utterances in the act of July 14, 1798 containing provisions parallel to our own article 142. Analogous prohibitions are found in the Espionage Act of June 1917 and the seditious libel amendment thereto in May, 1918. Of course such legislation despite its general merit is liable to become a weapon of intolerance constraining the free expression of opinion, or mere agitation for reform. But so long as there is a sufficient safeguard by requiring intent on the part of the defendant to produce illegal action-such legislation aimed at anarchy and radicalism presents largely a question of policy. Our Legislature has spoken in article 142 and the law must be applied. In disposing of this appeal, careful thought had to be given to the fundamental right to freedom of speech. Yet the freedom of speech secured by the Constitution "does not confer an absolute right to speak or publish without responsibility whatever one may choose." It is not "unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 4" So statutes against sedition have guaranty, although they should not be interpreted so as to agitate for institutional changes. 5 Not to be restrained is the privilege of any citizen to criticize his government officials and to submit his criticism to the "free trade of ideas" and to plead for its acceptance in "the competition of the market." However, let such criticism be specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the

entire government set-up. Such wholesale attack is nothing less than an invitation to disloyalty to the government. In the article now under examination one will find no particular objectionable actuation of the government. It is called dirty, it is called a dictatorship, it is called shameful, but no particular omissions or commissions are set forth. Instead the article drip with male-violence and hate towards the constituted authorities. It tries to arouse animosity towards all public servants headed by President Roxas whose pictures this appellant would burn and would teach the younger generation to destroy. Analyzed for meaning and weighed in its consequences the article cannot fail to impress thinking persons that it seeks to sow the seeds of sedition and strife. The infuriating language is not a sincere effort to persuade, what with the writer's simulated suicide and false claim to martyrdom and what with is failure to particularize. When the use irritating language centers not on persuading the readers but on creating disturbances, the rationable of free speech cannot apply and the speaker or writer is removed from the protection of the constitutional guaranty. If it be argued that the article does not discredit the entire governmental structure but only President Roxas and his men, the reply is that article 142 punishes not only all libels against the Government but also "libels against any of the duly constituted authorities thereof." The "Roxas people" in the Government obviously refer of least to the President, his Cabinet and the majority of legislators to whom the adjectives dirty, Hitlers and Mussolinis were naturally directed. On this score alone the conviction could be upheld. 6 As heretofore stated publication suggest or incites rebellious conspiracies or riots and tends to stir up people against the constituted authorities, or to provoke violence from opposition who may seek to silence the writer. 7Which is the sum and substance of the offense under consideration. The essence of seditious libel may be said to its immediate tendency to stir up general discontent to the pitch of illegal courses; that is to say to induce people to resort to illegal methods other than those provided by the Constitution, in order to repress the evils which press upon their minds. 8 "The idea of violence prevades the whole letter" says Justice Paredes of the Court of Appeals. "The mere fact that a person was so disgusted with his "dirty government" to the point of taking his own life, is not merely a sign of disillusionment; it is a clear act to arouse its readers a sense of dissatisfaction against its duly constituted authorities. The mention made in said letter of the situation in Central Luzon, the Hukbalahaps, Julio

Guillen and the banditry in Leyte, which are instances of flagrant and armed attacks against the law and the duly constituted authorities cannot but be interpreted by the reading public as an indirect justification of the open defiance by the Hukbalahaps against the constituted government, the attempt against the life of President Roxas and the ruthless depredations committed by the bandits of Leyte, thus insinuating that a state on lawlessness, rebellion and anarchy would be very much better than the maladministration of said President and his men. To top it all, the appellant proclaimed to his readers that he committed suicide because he had "no power to put under juez de cuchillo all the Roxas people now in power." Knowing, that the expression Juez de Cuchillo means to the ordinary layman as the Law of the Knife, a "summary and arbitrary execution by the knife", the idea intended by the appellant to be conveyed was no other than bloody, violent and unpeaceful methods to free the government from the administration of Roxas and his men. The meaning, intent and effect of the article involves maybe a question of fact, making the findings of the court of appeals conclusive upon us. 9 Anyway, it is clear that the letter suggested the decapitation or assassination of all Roxas officials (at least members of the Cabinet and a majority of Legislators including the Chief Executive himself). And such suggestion clinches the case against appellant. In 1922 Isaac Perez of Sorsogon while discussing political matter with several persons in a public place uttered theses words: "Filipinos must use bolos for cutting off Wood's head" — referring to the them GovernorGeneral, Leonard Wood. Perez was found guilty of inciting to sedition in a judgment of this court published in Volume 45 of the Philippine Reports. That precedent is undeniably opposite. Note that the opinion was penned by Mr. Justice Malcolm probably of speech. Adopting his own words we could say, "Here the person maligned by the accused is the Chief Executive of the Philippine Islands. His official position, like the President of the United States and other high office, under form of government, instead of affording immunity from promiscuous comment, seems rather to invite abusive attacks. But in this instance, the attack on the President passes the furthest bounds of free speech and common decency. More than a figure of speech was intended. There is a seditious tendency in the words used, which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws."

The accused must therefore be found guilty as charged. And there being no question as to the legality of the penalty imposed on him, the decision will be affirmed with costs.

Kaulayao V. Faylona, Manuel Imbong, Jacobo Gonzales, Fernando P. Camaya, Jose Tablizo, Romeo Kahayon and Tomas P. Matic, Jr. for respondents Pulido and Tamayo.

Pablo, Padilla, Montemayor and Reyes, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-34022 March 24, 1972 MANUEL MARTINEZ Y FESTIN petitioner, vs. THE HONORABLE JESUS P. MORFE OF THE COURT OF FIRST INSTANCE OF MANILA, and THE CITY WARDEN OF MANILA, respondents. G.R. Nos. L-34046-7 March 24, 1972 FERNANDO BAUTISTA, SR., petitioner, vs. HON. FRANCISCO MA. CHANCO, Presiding Judge, Court of First Instance of Baguio and Benguet, Second Judicial District, Branch III, et al., respondents. Estanislao A. Fernandez, Amelito Mutuc, Reynaldo Villar, Alberto K. Jamir Anacleto Badoy, Jr., Emmanuel Santos, Sedfrey Ordoñez, Antonio Tupaz, Arturo Pacificador, Dominador F. Carillo, Antonio Borromeo, Augusto Cesar Espiritu, Dandy K. Tupaz and Eugene A. Tan for petitioner Manuel Martinez Y Festin. Remulla, Perez and Estrella, Fernando P. Cabato and Gaudencio N. Floresca for petitioner Fernando Bautista Sr. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Bernardo P. Pardo, Assistant Solicitor General Rosalio A. de Leon and Solicitor Vicente V. Mendoza for respondents Judges.

FERNANDO, J.:p The question raised in these certiorari proceedings, one to which no authoritative answer has been yielded by past decisions, is the scope to be accorded the constitutional immunity of senators and representatives from arrest during their attendance at the sessions of Congress and in going to and returning from the same except in cases of treason, felony and breach of the peace. 1 Petitioners Manuel Martinez y Festin 2 and Fernando Bautista, Sr.,3 as delegate of the present Constitutional Convention would invoke what they consider to be the protection of the above constitutional provision, if considered in connection with Article 145 of the Revised Penal Code penalizing a public officer or employee who shall, during the sessions of Congress, "arrest or search any member thereof, except in case such member has committed a crime punishable under [such] Code by a penalty higher than prision mayor." 4 For under the Constitutional Convention Act, 5 delegates are entitled to the parliamentary immunities of a senator or a representative. 6 Both petitioners are facing criminal prosecutions, the information filed against petitioner Manuel Martinez y Festin for falsification of a public document and two informations against petitioner Fernando Bautista, Sr. for violation of the Revised Election Code. The Solicitor General, on behalf of the respondent Judges in the above proceedings, 7 would dispute such a contention on the ground that the constitutional provision does not cover any criminal prosecution being merely an exemption from arrest in civil cases, the logical inference being that insofar as a provision of the Revised Penal Code would expand such an immunity, it would be unconstitutional or at the very least inoperative. A careful study of the above constitutional provision, in the light of the proceedings of the Constitutional Convention, adopting the then wellsettled principle under American law and of the purposes to be served by such an immunity, persuade us that the stand taken by the Solicitor General is correct. Thesecertiorari proceedings cannot prosper. The facts in both petitions for certiorari are not in dispute. Petitioner Martinez y Festin 8 alleged that on June 10, 1971, an information against him for falsification a public document was filed. Its basis was his stating under oath in his certificate of candidacy for delegate to that Constitutional Convention that he was born on June 20, 1945, when in truth and in fact he knew that he was born on June 20, 1946. There was on July 9, 1971, a

special appearance on his part questioning the power of respondent Judge to issue a warrant of arrest and seeking that the information be quashed. On the same day, there was an order from the lower court suspending the release of the warrant of arrest until it could act on such motion to quash. Then came on July 22, 1971 an omnibus motion from him, with previous leave of court, to quash the information, to quash the warrant of arrest, or to hold in abeyance further proceeding in the case. It was not favorably acted on. On August 21, 1971, respondent Judge rendered an order denying the petitioner omnibus motion to quash. In his belief that the information and the warrant of arrest in this case are null and void, the petitioner did not post the required bond. He was arrested by the City Sheriff in the afternoon of September 6, 1971. At the time of the filing of the petition he was confined at the City Jail in the custody of respondent City Warden of Manila. He was on his way to attend the plenary session of the Constitutional Convention. Such arrest was against his will and over his protest. He was arraigned on September 9, 1971. There was at such a time a motion by petitioner to reconsider the court's order of August 21, 1971. It was denied in open court. On the very same day, he filed the petition for certiorari and habeas corpus, but having been released thereafter on bail on September 11, 1971, the petition is now in the nature solely of a certiorari proceeding. 9 As for petitioner Fernando Bautista, Sr., 10 it was alleged that he is a duly elected and proclaimed delegate to the 1971 Constitutional Convention. He took his oath of office and assumed the functions of such office on June 1, 1971. He has continued since then to perform the duties and discharge the responsibilities of a delegate. Two criminal complaints, docketed as Criminal Cases Nos. 146(57) and 148(58), were directly filed with the Court of First lnstance of Baguio and Benguet by a certain Moises Maspil, a defeated delegate-aspirant who placed 15th in the order of votes garnered against the petitioner, and his co-accused for alleged violation of Section 51 of the Revised Penal Code in that they gave and distributed free of charge food, drinks and cigarettes at two public meetings, one held in Sablan and the other in Tuba, both towns being in Province of Benguet. Respondent Presiding Judge conducted the preliminary investigation of said criminal complaints. Thereafter on August 7, 1971, he issued an order for the filing of the corresponding informations. Before a warrant of arrest in said criminal cases could be issued, petitioner in a motion of August 14, 1971 invoked the privilege of immunity from arrest and search, pursuant to Section 15 of Republic Act No. 6132, otherwise known as the 1971 Constitutional Convention Act, in relation to Sec. 15, Article VI of the Constitution and Article 145 of the Revised Penal Code. Respondent Judge, on the very same day, issued an order, holding in abeyance the issuance of a warrant of arrest and setting the hearing of said Motion on August 23,

1971. As scheduled on August 23, 1971, there was a hearing on such motion. Petitioner however did not prevail notwithstanding his vigorous insistence on his claim for immunity, a warrant of arrest being ordered on the same day. On September 11, 1971, there was a motion to quash such order of arrest filed by petitioner. He was unsuccessful, respondent Judge, in an order of said date, ordering his immediate arrest. His petition for certiorari and prohibition was filed with this Court on September 15, 1971. 11 What is thus sought by petitioners Martinez y Festin and Bautista, Sr. is that the respective warrants of arrest issued against them be quashed on the claim that by virtue of the parliamentary immunity they enjoy as delegates, ultimately traceable to Section 15 of Article VI of the Constitution as construed together with Article 145 of the Revised Penal Code, they are immune from arrest. In the case of petitioner Martinez y Festin, he is proceeded against for falsification of a public document punishable by prision mayor. 12 As for petitioner Bautista, Sr., the penalty that could be imposed for each of the Revised Election Code offense, of which he is charged, is not higher thanprision mayor. 13 The respondents in the above petitions were required to answer by resolutions of this Court issued on September 10 and September 20, 1971, respectively. An answer on behalf of respondent Judge Jesus P. Morfe in the case of petitioner Martinez y Festin was filed on September 20, 1971 with an answer in intervention filed by respondent Executive Sheriff of Manila and the Chief of Warrant Division likewise filed on the same date. His petition was duly heard on September 14, 1971, Delegate Estanislao A. Fernandez vehemently pressing his claim to immunity. Thereafter on October 29, 1971, a memorandum, comprehensive in scope and persuasive in its analysis of the constitutional question presented, was filed on behalf of respondent Judge Morfe by Solicitor General Felix Q. Antonio, two Assistants Solicitors General Bernardo P. Pardo and Rosalio A. de Leon as well as Solicitor Vicente V. Mendoza. A memorandum on behalf of President Diosdado Macapagal of the Constitutional Convention, who was given permission to submit such a pleading, was submitted on March 8, 1972 by the Committee on Legal Affairs of the Constitutional Convention. 14 As for the petitions of Bautista, Sr., the answer on behalf of respondent Judge was filed on September 29, 1971. When the matter was heard on October 14, 1971, he appeared through counsel, Delegate Juanito R. Remulla, while respondent Judge was represented by Assistant Solicitor General Rosalio A. de Leon and Solicitor Vicente V. Mendoza. With the submission, on October 30, 1971, of an able memorandum on behalf of respondent judge, again, by the same counsel from the Office of the

Solicitor General as well as a carefully-prepared memorandum of petitioner Bautista, Sr., on December 1, 1971, the matter was deemed submitted for adjudication. As noted at the outset, certiorari does not lie to quash the warrants of arrest issued against petitioner Martinez y Festin as well as petitioner Bautista, Sr. Their reliance on the constitutional provision which for them should be supplemented by what was provided for in the Revised Penal Code is futile. There is no justification then for granting their respective pleas. No other conclusion is allowable consistently with the plain and explicit command of the Constitution. As is made clear in Section 15 of Article VI, the immunity from arrest does not cover any prosecution for treason, felony and breach of the peace. Treason exists when the accused levies war against the Republic or adheres to its enemies giving them aid and comfort. 15 A felony is act or omission punishable by law. 16 Breach of the peace covers any offense whether defined by the Revised Penal Code or any special statute. It is a well-settled principle in public law that the public peace must be maintained and any breach thereof renders one susceptible to prosecution. Certainly then from the explicit language of the Constitution, even without its controlling interpretation as shown by the debates of the Constitutional Convention to be hereinafter discussed, petitioners cannot justify their claim to immunity. Nor does Article 145 of the Revised Penal Code come to their rescue. Such a provision that took effect in 1932 could not survive after the Constitution became operative on November 15, 1935. As will be shown, the repugnancy between such an expansion of the congressional immunity and the plain command of the Constitution is too great to be overcome, even on the assumption that the penalty to which a public officer will be subjected in the event that he did arrest one entitled thereto for an offense punishable by less than reclusion temporal suffices to widen its scope. This is so considering not only the history of such a Constitutional grant of immunity but also its basic purpose and objective. 1. Even if the provision granting the legislative immunity of freedom from arrest were clothed in language less clear, its history precludes any other interpretation. As submitted to the Constitutional Convention of 1934, the draft proposal was worded as follows: "The Members of the National Assembly shall in all cases except treason, open disturbance of public order, or other offense punishable by death or imprisonment of not less than six years, be privileged from arrest during their attendance at the sessions of the National Assembly, and in going to and returning from the same." On December 4, 1934, upon its being considered by the

Convention, an amendment was proposed by Delegate Aldeguer so that it would read: "The Members of the National Assembly shall in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the sessions of the National Assembly, and in going and returning from the same." What was sought by him was to retain the provision of the Philippine Autonomy Act of 1916, with phraseology identical to that found in the American Constitution. He defended his proposal thus: "My amendment is not new. It is the same phrase granting parliamentary immunity to the members of the Parliament of England. It is the same phrase granting parliamentary immunity to members of Congress. It is the same phrase granting parliamentary immunity to members of the various state legislators of the Union. Now, in reading the draft proposed by the Sub-Committee of Seven, I found out that it is a broad rule. Mr. President, the question is not whether we should grant privilege of immunity to the members of the National Assembly ... " 17 He was interrupted by a point of order raised, but he was allowed to continue. He went on: "As I was saying, Mr. President and Gentlemen of the Convention, the draft gives to the member of the National Assembly more privileges than what the nature of the office demands. My question is that if the members of the Congress of the United States, if the members of the Parliament, if the members of the various State Legislatures were able to perform their functions as members of law-making bodies with the privileges and immunities granted by the phrase "breach of peace." I wonder why the members of the future National Assembly cannot perform their duties with the same limitations and with the same privileges. Mr. President and members the Convention, the history of parliamentary immunity shows that it was never intended to exempt members of the National Assembly from criminal arrest. When American sovereignty was implanted into these Islands, a new theory of government was implanted too. This theory of government places every man equal before the eyes of the law. The grant of certain privileges to any set of persons means the abrogation of this principle of equality before the eyes of the law. Another reason, Mr. President and Members of the Convention, is this: The State Legislature is the agent of the State. The power or the right of the Legislature to claim privileges is based on the right of self-preservation. The right of the State to claim privileges is due to the fact that it has the right to carry its function without obstacle. But we must also remember that any Legislature is but the agent of the State. The State is the principal. Any crime committed, whether such crime is committed by a colorum or by a gangster, endangers the State. Giving more privileges to an agent, which is the Legislature, at the expense of the principal, which is the State, is not a sound policy. So that, Mr. President, and Members of the Convention, believing that under the phrase "breach of peace", our future members of

the Assembly can very well perform the duties incumbent upon them. I submit my amendment for the consideration of this Convention." 18

Philippine law, if deference were to be paid to what was explicitly agreed upon in the Constitutional Convention.

Delegate Manuel Roxas on behalf of the sub-committee of seven did not object. As a matter of fact, he was for such amendment. He considered it "well-founded" and was for such immunity complying "with the wording of the [Philippine Autonomy Act] in this particular." 19 The Convention readily approved the amendment by acclamation.

2. Would it make a difference however in the availability of the writs of certiorari sought by petitioners considering that Article 145 of the Revised Penal Code would impose upon any public officer or employee who shall, while the Congress is in regular or special session, arrest or charge any member thereof except in case such member has committed a crime punishable by penalty higher than prision mayor? 28 The assumption here indulged is that the effect of the above in the Revised Penal Code was to expand the grant of parliamentary immunity under the Philippine Autonomy Act, although its literal language does not go that far. It is to be remembered, however, that it took effect on January 1, 1932 before the enforcement of the present Constitution in 1935. Considering that both under the then organic law, the Philippine Autonomy Act and equally so under the present Constitution, such a more generous treatment accorded legislators exempting them from arrest even if warranted under a penal law, the question as to whether it did survive becomes unavoidable. It is our opinion that the answer must be in the negative.

It does not admit of doubt therefore that the immunity from arrest is granted by the Constitution was understood in the same sense it has in American law, there being a similar provision in the American Constitution. 20 Its authoritative interpretation in the United States was supplied by the Williamson case, a 1908 decision. 21 According to the then Justice, later Chief Justice, White who penned the opinion, "the term "treason, felony and breach of the peace," as used in the constitutional provision relied upon, excepts from the operation of the privilege all criminal offenses, ... " 22 He traced its historical background thus: "A brief consideration of the subject of parliamentary privilege in England will, we think, show the source whence the expression "treason felony, and breach of the peace" was drawn, and leave no doubt that the words were used in England for the very purpose of excluding all crimes from the operation of the parliamentary privilege, and therefore to leave that privilege to apply only to prosecutions of a civil nature." 23 Story's treatise on the Constitution was likewise cited, his view on the matter being quite emphatic: "Now, as all crimes are offenses against the peace, the phrase "breach of the peace" would seem to extend to all indictable offenses, as well those which are in fact attended with force and violence, as those which are only constructive breaches of the peace of the government, inasmuch as they violate its good order." 24 As far as American constitutional law is concerned, both Burdick 25 and Willoughby 26 could use practically identical appraising such immunity, the former stating that it "is not now of great importance" and the latter affirming that it "is of little importance as arrest of the person is now almost never authorized except for crimes which fall within the classes exempt from the priviledge." The state of the American law on this point is aptly summarizedby Cooley: "By common parliamentary law, the members of the legislature are privileged from arrest on civil process during the session of that body, and for a reasonable time before and after, to enable them to go to and return from the same." 27 A prosecution for a criminal offense, is thus excluded from this grant of immunity. So it should be

The Constitution is equally explicit on the following point: "All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution until amended, altered, modified, or repealed by the Congress of the Philippines, and all references in such laws to the government or officials of the Philippines shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution." 29 In People v. Linsangan 30 decided in December, 1935, barely a month after the Constitution took effect, the continued applicability of Section 2718 of the Revised Administrative Code that would allow the prosecution of a person who remains delinquent in the payment of cedula tax, 31 this Court, in its opinion thru the pen of the then Justice, later Chief Justice, Abad Santos, after setting forth that the Constitution prohibits the imprisonment for debt on non-payment of poll tax, 32 held: "It seems too clear to require demonstration that section 2718 of the Revised Administrative Code is inconsistent with section 1, clause 12, of Article III of the Constitution in that, while the former authorizes imprisonment for non-payment of the poll or cedula tax, the latter forbids it. It follows that upon the inauguration of the Government of the Commonwealth, said section 2718 of the Revised Administrative Code became inoperative, and no judgment of conviction can be based thereon." 33

So it was in De los Santos v. Mallare. 34 Again under the provision of the Revised Administrative Code the President could remove at pleasure any of the appointive officials under the Charter of the City of Baguio. 35 Relying on such a provision, the then President Quirino removed petitioner De los Santos who was appointed City Engineer Baguio of on July 16, 1946, and chose in his place respondent Gil R. Mallare. The Revised Administrative Code was a legislation that dates back to 1917, 36eighteen years before the Constitution prohibited any officer or employee in the civil service being removed or suspended except for cause as provided by law. 37 Again this Court, in the light of aforecited provision in an opinion of Justice Tuason, held: "So, unlike legislation that is passed in defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the Revised Administrative Code does not need a positive declaration of nullity by the court to put it out of the way. To all intents and purposes, it is nonexistent, outlawed and eliminated from the statute book by the Constitution itself by express mandate before the petitioner was appointed." 38 In the language of the constitutional provision then that portion of Article 145 penalizing a public official or employee who shall while the Congress is in regular or special session arrest or search any member thereof except in case he has committed a crime punishable under the Revised Penal Code by a penalty higher than prision mayor is declared inoperative. The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other force except the dictates of their conscience. Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same. There is likely to be no dissent from the proposition that a legislator or a delegate can perform his functions efficiently and well, without the need for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to be treated like any other citizen considering that there is a strong public interest in seeing to it that crime should not go unpunished. To the fear that may be expressed that the prosecuting arm of the government might unjustly go after legislators belonging to the minority, it suffices to answer that precisely all the safeguards thrown around an accused by the Constitution, solicitous of the rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of course is that the

judiciary would main independent. It is trite to say that in each and every manifestation of judicial endeavor, such a virtue is of the essence. WHEREFORE, the petition for certiorari and habeas corpus by Delegate Manuel Martinez by Festin in L-34022 and the petitions for certiorari and prohibition by Delegate Fernando Bautista, Sr. in L-34046 and L-34047 are hereby dismissed. Without pronouncement as to costs. FIRST DIVISION [G.R. No. 128618. November 16, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELICISIMO NARVASA, JIMMY ORANIA and MATEO NARVASA, accused, FELICISIMO NARVASA and JIMMY ORANIA appellants. DECISION PANGANIBAN, J.: What crime or crimes are committed when a killing is perpetrated with the use of unlicensed firearms? In the absence of the firearms themselves, may illegal possession of firearms be proven by parol evidence?

The Case

Appellants Felicisimo Narvasa and Jimmy Orania seek the reversal of the October 11, 1996 Decision [1] of the Regional Trial Court of Alaminos, Pangasinan, in Criminal Case Nos. 2629-A, 2648-A and 2646-A, finding them guilty beyond reasonable doubt of illegal possession of firearms in its aggravated form and sentencing them to reclusion perpetua. Assistant Provincial Prosecutor Emiliano A. Rabina filed three Informations[2] against the appellants and their co-accused, Mateo Narvasa. In Criminal Case No. 2648-A, the Amended Information filed on November 10, 1993 charged Felicisimo Narvasa (in conspiracy with the other accused) with aggravated illegal possession of firearm allegedly committed as follows:

“That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody an M-14 Rifle without first securing the necessary license or permit from the lawful authorities and which firearm in conspiracy with Jimmy Orania and Mateo Narvasa was used in the killing of one SPO3 Primo Camba, victim in Crim. Case No. 2629-A.” In Criminal Case No. 2646-A, Jimmy Orania (in conspiracy with the other accused) was charged with aggravated illegal possession of firearm in the Amended Information which reads: “That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody a .30 U.S. Carbine without first securing the necessary license /and/or permit from the lawful authorities and which firearm in conspiracy with Mateo Narvasa and Felicisimo Narvasa was used in the killing of SPO3 Primo Camba, victim in Crim. Case No. 2629-A.”

“WHEREFORE, in consideration of the foregoing premises and the evidence presented, this Court finds both accused Felicisimo Narvasa in Criminal Case No. 2648-A and Jimmy Orania in Criminal Case No.2646-A [g]uilty beyond reasonable doubt of the crime of [i]llegal [p]ossession of [f]irearms in its aggravated form in these cases and therefore, both accused are sentenced to death penalty but for reasons that the law at that time of the commission of the crime prohibits death sentence penalty, these two accused therefore shall each suffer the sentence of single, indivisible penalty of reclusion perpetua and are ordered to pay jointly and severally the heirs of the victim the amount of P50,000.00 as death indemnity and moral damages of P100,000.00 each, plus cost. “In Criminal Case No. 2629-A for [h]omicide, this Court has considered this case as [a] necessary component of the crimes of [i]llegal [p]ossession in their aggravated form, as the same is merely an element of the principal offense of [i]llegal [p]ossession of [f]irearms in [its] aggravated form, which is the graver offense. “With respect to accused Mateo Narvasa, since he has not been arrested and never brought to the jurisdiction of this Court, this case in the meantime, is ordered archived insofar as said accused Mateo Narvasa is concerned. “Let an Alias Warrant of Arrest issue as against accused Mateo Narvasa.

In Criminal Case No. 2629-A, Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa were charged with homicide allegedly committed as follows: “That on or about February 6, 1992, at Sitio Bugtong, [B]arangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping one another, with intent to kill, armed with high powered guns, did then and there willfully, unlawfully, and feloniously shoot SPO3 PRIMO CAMBA which caused his instantaneous death as a consequence, to the damage and prejudice of his heirs.” Felicisimo Narvasa and Jimmy Orania were arrested, but Mateo Narvasa remained at large. When arraigned, the two appellants, assisted by their counsel,[3] pleaded not guilty.[4] Trial proceeded in due course. Thereafter, the court a quo rendered the assailed Decision, the dispositive portion of which reads:

“The [b]ailbond posted by accused Felicisimo Narvasa is hereby ordered cancelled.” Appellants’ counsel then filed a Notice of Appeal to the Court of Appeals.[5] In an Order[6] dated October 24, 1996, the trial court deemed the appeal filed by Felicisimo Narvasa and Jimmy Orania perfected, and effected the transmittal of the case records to the Court of Appeals. Realizing the mistake, the Court of Appeals subsequently forwarded the records to this Court.[7]

The Facts

Evidence for the Prosecution

In his Brief, the solicitor general [8] presented the following narration of facts:

“In the process of the retreat, Camba [bled] profusely and he died even before he could be brought out from the scene of the crime.

“On February 6, 1992, after lunch time[,] Villamor Laderas and Ernesto Nagal, councilmen of Quinaoayanan, Bani, Pangasinan, acting on a report that there were missing carabaos, pigs and goats, repaired to the far-flung Sitio Bugtong of the town of Bani and to Sitio Patar of the adjoining town of Agno in Pangasinan, which they reached at around 5:30 that afternoon. Then Laderas and Nagal patrolled the area. Along their way, the two chanced upon the gang of appellants[.] [T]hey were five and three of them were armed. Jimmy Orania was holding a caliber .30 U.S. carbine, Mateo Narvasa was armed with [an] M-16 and Felicisimo Narvasa was carrying an M-14.

“The body of Camba was left at the scene of the crime while his companions escaped and called for help. Several policemen arrived. Pieces of evidence like empty shells of M-16, M-14 and caliber .30 U.S. carbine bullets were gathered and some policemen were tasked to track down the goons (Exhs. C, C-1 to C-4; tsn., August 16, 1994, pp. 6-10).

“The two are familiar with those kind[s] of guns as they have seen similar ones carried by policemen. They said, a carbine is shorter than [an] M-14 and [an] M-16 is longer than [an] M-14 (Tsn., April 21, 1994, pp. 1-35, December 13, 1995, pp. 1-12). “Laderas and Nagal simply stared at the five and then they proceeded to their way home. Unluckily for the goons, the two councilmen met the two policemen[,] SPO3 Primo Camba and PO2 Simeon Navora who were on patrol and they reported what they saw (Ibid). “The two policemen were also responding to a report about the missing animals and they suggested that all of them should track down the armed goons (Ibid). “After walking some distance, the four responding men saw the house of appellant Felicisimo Narvasa on a hilly portion around 100 meters away from their path. They decided to investigate at the house but before they could negotiate the distance, they were met by a volley of gunfire. The four[,] who were ten meters apart[,] dove and sought cover (Tsn., April, 1994, p. 11). When the firing took a halt, Laderas had the courage to raise his head and [view] xxx the source of the gunfire. Laderas saw Felicisimo Narvasa in a squatting position aiming at the two policemen and Jimmy Orania was seated near him guiding him at his target. Mateo Narvasa was also aiming his gun. There was an exchange of gunfire as the policemen were able to take proper positions. Unfortunately, SPO3 Camba was hit. Navora summoned Laderas and Nagal to get closer to give aid to Camba. Laderas and Nagal carried Camba as they retreated and, Navora followed moving backwards as he kept firing at their enemies (Ibid, tsn., July 20, 1994, pp. 1-8; tsn., August 15, 1994, pp. 2-30).

“Shortly thereafter, Felicisimo Narvasa, Glicerio Narvasa, Rederio Narvasa and Jimmy Orania were apprehended. Mateo Narvasa was not found. The four were investigated and paraffin tested. Felicisimo Narvasa and Jimmy Orania were found positive of gunpowder burns (Tsn., August 16, 1994, pp. 11-15).”[9] Evidence for the Defense

Appellants deny the charges against them. Felicisimo Narvasa even claims that his son Arnel was shot by Ernesto Nagal, Villamor Laderas and PO2 Simeon Navora. In their Brief,[10] they state: “Felicisimo Narvasa testified that he was sleeping at his house on the afternoon of February 6, 1992 when Glicerio Narvasa woke him up and informed him that his son Arnel was shot. He went downstairs and saw his co-accused Jimmy Orania embracing his son. He asked his son who shot him and the latter told his father that it was the group of Councilman Laderas who shot him. He instructed Orania and his wife to bring his son to the hospital but the latter died at the hospital. He further averred that before he slept, Jimmy Orania, Glicerio Narvasa and Rederio Narvasa were in his house drinking two bottles of gin after helping him [fix] the fence in his house. Accused-appellant Narvasa when asked to explain the charge against him denied committing the same. On March 17, 1992 he gave his affidavit naming Ernesto Nagal, Villamor Laderas and Simeon Navora as the assailants of his son. (TSN, August 8, 1999, pp. 3-17) “Jimmy Orania testified that on February 6, 1992, he was in the house of his co-accused Felicisimo Narvasa because he was invited to work on the fence of Felicisimo. After finishing their work, Jimmy[,] together with Glicerio and Rederio Narvasa[,] drunk two bottles of gin. At about 5:00 o’clock in the afternoon he instructed Arnel Narvasa to get their carabaos grazing around 100 meters north of the house of Felicisimo, when he heard a gunshot coming from that direction. Arnel shouted for help, so he proceeded to the place where Arnel was shot and carried him to the house

of Felicisimo. The latter was awakened by Glicerio and when he asked his son who shot him, Arnel answered that it was the group of Laderas.

II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANTS DESPITE THE INSUFFICIENCY OF THE PROSECUTION’S EVIDENCE TO WARRANT CONVICTION OF THE ACCUSED-APPELLANTS BEYOND REASONABLE DOUBT OF THE CRIME OF AGGRAVATED ILLEGAL POSSESSION OF FIREARM.”[15]

“Jimmy Orania further averred that he knew nothing and denied participation in the killing of Primo Camba. That on the day after February 6, 1992, they were picked up by the police. (TSN, August 20, 1996, pp. 313).”[11] Ruling of the Trial Court

The trial court accorded credibility to the prosecution witnesses and held that mere denial could not overcome the prosecution evidence showing that appellants used high-powered firearms to shoot at the prosecution witnesses, thereby resulting in the death of SPO3 Primo Camba. Further supporting said testimonies were the results of the paraffin test conducted on appellants and the recovery of various cartridges and shells matching the firearms purportedly used in the crime. Though these unlicensed firearms were not presented as evidence, the trial court, citing People v. Ferrera,[12] ruled that appellants may still be convicted of illegal possession of firearms. Finally, the trial court found that appellants acted in conspiracy in the killing of Primo Camba. However, on the basis of People v. Barros,[13] it held that the homicide was merely an element of the illegal possession of firearms in its aggravated form; thus, homicide in the present case was taken into account not as a separate crime but as an aggravating circumstance which increased the penalty for the illegal possession of firearms. Hence, this appeal.[14] Assignment of Errors

In assailing the trial court’s Decision, appellants interpose the following errors: “I THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCONSISTENT TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION.

In the main, the resolution of this case revolves around the credibility of the prosecution witnesses, the sufficiency of the prosecution evidence and the characterization of the crime committed. The Court’s Ruling

The appeal is not meritorious. In light of Republic Act 8294, however, appellants should be convicted only of homicide, with the special aggravating circumstance of the use of illegally possessed firearms. [16]

First Issue: Credibility of Prosecution Witnesses

Appellants question the credibility of Witnesses Laderas and Nagal because of an alleged inconsistency in their testimonies. Laderas testified that there was an exchange of fire between appellants and PO2 Simeon Navora, while Nagal declared that only the appellants fired. Appellants point out that “conflicting testimonies on a material and relevant point casts doubt [on] the truthfulness or veracity”[17] of such testimonies. Appellants’ contention is untenable. The circumstances of the instant case explain the seeming inconsistency in the testimonies of the two witnesses. At the time, they were under fire and in fear of losing their lives. Moreover, they did not take cover in the same place that Navora did. Nonetheless, their uncertainty on whether Navora had fired back is immaterial to the crime charged and too insignificant to impair their credibility. In any event, the Court has ruled that a witness is not expected to remember an occurrence with perfect recollection of minute details. [18] Second Issue: Sufficiency of the Evidence

Appellants cite People v. Lualhati,[19] wherein this Court ruled “that in crimes involving illegal possession of firearm, the prosecution has the

burden of proving the elements thereof, viz: the existence of the subject firearm and the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same.” Appellants contend that the existence of the firearms was not sufficiently proven because the prosecution had not presented the firearms as evidence. It is necessary, they argue, that said “firearms allegedly possessed by the accused-appellants and allegedly used in the killing of Policeman Primo Camba be presented in evidence as those firearms constitute the corpus delicti of the crime with which they are sentenced.”[20] Appellants’ argument is not persuasive. In People v. Lualhati, this Court merely stated that the existence of the firearm must be established; it did not rule that the firearm itself had to be presented as evidence. Thus, in People v. Orehuela,[21] the Court held that the existence of the firearm can be established by testimony, even without the presentation of the said firearm. In the said case, Appellant Orehuela was convicted of qualified illegal possession of a firearm despite the fact that the firearm used was not presented as evidence. The existence of the weapon was deemed amply established by the testimony of an eyewitness that Orehuela was in possession of it and had used it to kill the victim, viz.: “We consider that the certification was adequate to show that the firearm used by Modesto Orehuela in killing Teoberto Canizares was a firearm which Orehuela was not licensed to possess and to carry outside his residence on the night that Teoberto Canizares was shot to death. That that firearm was a .38 caliber pistol was shown by the testimony and report of NBI Ballistician Bonifacio Ayag. When the above circumstances are taken together with the testimony of the eyewitness that Modesto Orehuela was in fact in possession of a firearm and used the same to kill Teoberto Canizares, we believe that accused Orehuela was properly found guilty of aggravated or qualified illegal possession of firearm and ammunition.” In the present case, the testimonies of several witnesses indubitably demonstrate the existence of the firearms. Villamor Laderas stated that when he went to Barangay Quinaoayanan, Bani, Pangasinan to investigate a report regarding missing carabaos, pigs and goats, he saw the appellants carrying long firearms. We quote hereunder the relevant portion of his testimony: “Q And when you saw the two accused together with the three others, what have you noticed in their persons?

A

They were holding long firearms, sir.

Q

Who of the five persons did you see was holding long firearms?

A

Jimmy Orania was holding a carbine; Mateo Narvasa was holding an M-16.

Q

About Felicisimo Narvasa, what was he holding?

A

Felicisimo Narvasa was holding [an] M-14.”[22]

Ernesto Nagal likewise stated that he saw appellants carrying long firearms, as his testimony indicates: “Q What did you notice in the persons of the five persons you met? A

They were carrying arms, sir.

Q

What kind of firearm were the five persons, or some of them, carrying?

A

Jimmy Orania is carrying a caliber .30.

Q

How about Mateo Narvasa?

A

Mateo Narvasa is carrying [an] M-16.

Q

How about Felicisimo Narvasa?

A

A long firearm was carried by Felicisimo Narvasa, sir, but I don’t know the caliber.”[23]

That herein appellants were the ones who had shot at the prosecution witnesses was confirmed by Laderas, who testified as follows: “Q How did you know that the gunfire came from the west? A

Because we were facing west.

Q

And while the gunfire was going on, did you know who fired those gunshots?

A

We know sir, because we can see them.

Q

Whom did you see?

A

Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa, sir.” [24]

In addition, Primo Camba was hit by a bullet, and empty shells of M16, M-14 and .30 caliber carbine bullets were later on recovered in the vicinity of the place where the shooting occurred. The above facts, duly proven and taken together, sufficiently establish the existence of the subject firearms and the fact that appellants possessed and used said firearms in firing at Villamor Laderas, Ernesto Nagal, and Simeon Navora, as well as Primo Camba who succumbed to the gunshot wound he had sustained. The present case can be distinguished from People v. Navarro[25] wherein the Court held that illegal possession of firearm could not be deemed an aggravating circumstance because the existence of the said firearm was not proven. In said case, a witness testified that he saw appellant shoot the victim with a “short” firearm. No firearm, however, was presented as evidence, although a gun was recovered from the accused when he was arrested. Moreover, no proof was adduced to show that the firearm allegedly seen by the witness was the same one recovered by the authorities from the accused. Thus, the Court held: “In the case at bar, the Information alleged that on January 5, 1991, the appellant had in his possession an unlicensed firearm which he used in killing Ferdinand Rabadon. This firearm was allegedly recovered on January 5, 1994, when appellant was arrested. However, said firearm was not presented in court or offered as evidence against the appellant. Although Rabago testified that he saw the appellant with a ‘short’ firearm when the latter shot Rabadon on January 5, 1991 no other proof was presented to show that such gun, allegedly used on January 5, 1991, was the same one recovered on January 5, 1994. The prosecution was not able to establish sufficiently the existence of the subject firearm x x x.” In other words, the evidence on the existence of the firearm was beset with doubt and conflict. Such uncertainty is not found in the present case, for the testimonies of several witnesses indubitably established that the subject firearms were in the possession of the appellants.

As to proof that appellants had no license or permit to possess the firearms in question, we have held in People v. Villanueva[26] that the second element of illegal possession of firearms can be proven by the testimony or the certification of a representative of the PNP Firearms and Explosives Unit that the accused was not a licensee of the firearm in question. The Court ruled: “As we have previously held, the testimony of, or a certification from the PNP Firearms and Explosives Unit that the accused-appellant was not a licensee of the said firearm would have sufficed to prove beyond reasonable doubt the second element of the crime of illegal possession.” The prosecution submitted a certification showing that Appellants Felicisimo Narvasa and Jimmy Orania were not licensed firearm holders, [27] a fact that was attested to by SPO4 Roberto Manuel, a member of the PNP stationed at the provincial headquarters of the Pangasinan Provincial Command as Assistant Firearms and Explosives NCPO, who testified thus: “Q And did you bring with you the Master List of the firearm licensed holders in Pangasinan? A

Yes, sir.

Q

Will you please produce it?

A

(Witness showing a folder, which is the Master List of firearm licensed holders in Pangasinan.)

Q

And with the aid of that voluminous list of firearm holders in Pangasinan, will you please tell his Honor if Felicisimo Narvasa and Jimmy Orania appear therein as licensed firearm holders?

A

Their names do not appear, as manifested by our [Master List as licensed] holders of any caliber, sir.”[28]

Appellants did not present any evidence – and neither did they even claim -- that they were in fact licensed firearm holders. Appellants Responsible

for Policeman’s Death

Laderas, Nagal and Navora testified that as their group, which included Primo Camba, approached Felicisimo Narvasa’s house, they were suddenly fired upon. Camba was hit and it was from that bullet wound that he died. That appellants were responsible for his death is clear from Navora’s testimony: “Q And on your way following them what happened? A

When we were about 100 meters North of the House of Ising Narvasa we were met [by] a heavy volume of gunfire.

Q

Now, if you were met according to you with heavy volume of gunfire, what did you xxx and your companion [do]?

A

We dive[d] to the ground for safety, sir. xxx

xxx

xxx

Upon diving to the ground, what happened to Primo Camba?

A

Primo Camba was hit, sir[.]

Q

How did you come to know that Primo Camba was hit by the first exchange of gunfire?

A

Just after we dived to the ground, xxx Primo Camba told me that he was hit.

Q

And when Primo Camba told you that he was hit, what did you do?

A

I signalled the two (2) councilmen to get near me. xxx

xxx

xxx

Q

And when you reach[ed] the premises of Prudencio, what was the condition of Primo Camba?

A

He [was] no longer breathing, sir.[29]

Laderas was able to identify their attackers as Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa. As these three directed and fired their guns at Laderas, Nagal, Navora and Camba, there was unity in action and purpose, and thus, conspiracy was present. Although it was not ascertained who among them actually shot Camba, all of them are liable for his death. In conspiracy, the act of one is the act of all. Third Issue:

Q

xxx

xxx

xxx

''Q After giving instruction to the two (2) councilmen, what did you do? A

They carr[ied] him while we were retreating.

Q

Carried the body of Primo Camba, to what place?

A

We retreated [to the] East direction, until we reach the yard of [a] certain Prudencio.

The Crime

The totality of the evidence shows that appellants possessed unlicensed firearms, which they used in killing Primo Camba. In its Decision, the trial court convicted appellants of “[i]llegal [p]ossession of [f]irearms in its aggravated form” and considered homicide “merely an element of the principal offense of [i]llegal [p]ossession of [f]irearms in its aggravated form.” Applying People v. Barros[30] to the proven facts, the trial court imposed upon appellants the penalty of reclusion perpetua. However, a new law has in the meanwhile been enacted. Republic Act No. 8294,[31] which imposes a lighter penalty for the crime, 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) 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, part of firearm, 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) 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, .44, .45 and also lesser calibered 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.

found GUILTY of HOMICIDE with the special aggravating circumstance of using unlicensed firearms. Applying the Indeterminate Sentence Law, they are each sentenced to twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum; and ordered to pay the heirs of Primo Camba P50,000 as death indemnity. However, the award of moral damages is hereby DELETED.

“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.”

Republic of the Philippines SUPREME COURT Manila

In People v. Molina,[32] this Court en banc explained that RA 8294 considers the use of an unlicensed firearm only an aggravating circumstance in murder or homicide, viz.:

EN BANC

“Under our ruling in People vs. Quijada, violation of PD 1866 is an offense distinct from murder; appellants should perforce be culpable for two separate offenses, as ruled by the trial court. “Fortunately for appellants, however, RA 8294 has now amended the said decree and considers the use of an unlicensed firearm simply as an aggravating circumstance in murder or homicide, and not as a separate offense.” Under RA 8294, appellants can be held liable only for homicide [33] and penalized with reclusion temporal. Pursuant to Article 22 of the Revised Penal Code,[34] RA 8294 should be given retroactive effect. Civil Liability

Consistent with prevailing jurisprudence, appellants are liable to pay, jointly and severally, the heirs of Primo Camba the sum of fifty thousand pesos (P50,000) as indemnity ex delicto for his death. However, the award of two hundred thousand pesos (P200,000) representing moral damages should be deleted since no evidence of anxiety, moral shock, wounded feelings or similar injury was presented during the trial.

SO ORDERED.

G.R. Nos. L-37168-69 September 13, 1985 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELFINO BELTRAN, alias Minong, DOMINGO HERNANDEZ, alias Doming; CEFERINO BELTRAN, alias Ebing; MANUEL PUZON alias Noling; CRESENCIO SIAZON, alias Ising; and ROGELIO BUGARIN, alias Boy,accused-appellants. The Solicitor General for plaintiff-appellee. Ernesto P. Pagayatan for accused-appellants.

RELOVA, J.: Accused-appellants Delfino Beltran, alias Minong; Rogelio Bugarin, alias Boy; Cresencio Siazon, alias Ising; Manuel Puzon, alias Noling; Domingo Hernandez, alias Doming; and, Ceferino Beltran, alias Ebing, were indicted for murder and double attempted murder with direct assault in the then Court of First Instance of Cagayan, docketed as Criminal Case No. 158- S. Likewise, Delfino Beltran was charged with attempted murder in Criminal Case No. 160-S. After trial they were convicted and sentenced as follows:

WHEREFORE, the assailed Decision is hereby MODIFIED. For the death of Primo Camba, Appellants Felicisimo Narvasa and Jimmy Orania are

WHEREFORE, the Court finds all the accused DELFINO BELTRAN alias Minong, ROGELIO BUGARIN alias Boy, CRESENCIO SIAZON alias Ising, MANUEL PUZON alias Noling, DOMINGO HERNANDEZ alias Doming and CEFERINO BELTRAN alias Ebing, guilty beyond reasonable doubt of the crime of murder for the death of VICENTE QUIROLGICO. There being no mitigating circumstance, the Court has no other alternative than to impose the maximum penalty provided for by law. Accused Delfino Beltran, Rogelio Bugarin, Cresencio Siazon, Manuel Puzon, Domingo Hernandez and Ceferino Beltran are hereby sentenced to the maximum penalty of DEATH, to indemnify the heirs of Vicente Quirolgico the sum of P 12,000.00 for the loss of his life; P 75,000.00 as reimbursement for expenses covering medical funeral embalming mausoleum and burial lot, and the further sum of P 50,000.00 for moral damages, jointly and severally and to pay the costs, without subsidiary imprisonment in case of insolvency, taking into consideration the nature of the principal penalty imposed. The Court likewise finds all the accused guilty beyond reasonable doubt of the crime of DOUBLE ATTEMPTED MURDER WITH DIRECT ASSAULT and hereby imposes upon an of them the penalty of RECLUSION TEMPORAL in its medium period and orders them to undergo a prison term ranging from 14 years, 8 months and 1 day as minimum to 17 years and 4 months as maximum and to pay the costs. Under Crim. Case No, 160-S, accused DELFINO BELTRAN is hereby found guilty beyond reasonable doubt of the crime of ATTEMPTED HOMICIDE and hereby sentence him to undergo a prison term ranging from 2 years, 4 months and 1 day to 3 years, 6 months and 20 days of prision correccional and to pay the costs. (pp. 402-403, Record) The People's evidence shows that in the evening of January 11, 1972, between 9:00 and 10:00, in Ballesteros, Cagayan, Ernesto Alvarado was bringing Calixto Urbi home in a jeep. Passing by the Puzon Compound, Delfino Beltran alias Minong, shouted at them, "Oki ni inayo" (Vulva of your mother). They proceeded on their way and ignored Delfino. After Alvarado had brought Urbi to his house he went to the house of Mayor Bienvenido Quirolgico and reported the matter. The newly elected Mayor told the Chief of Police that something should be done about it. They decided to go to the Puzon Compound with the intention to talk to Delfino Beltran and his companions to surrender considering that he knew them personally as all of them were once working for Congressman David Puzon When they came near the compound, they saw appellants Delfino Beltran, Rogelio Bugarin and Domingo Hernandez and suddenly there was

a simultaneous discharge of gunfire, The mayor's son, Vicente, who was with them, cried: " I am already hit, Daddy." As he fell, Vicente pushed his father and both fell down. Mayor Quirolgico and Patrolman Rolando Tolentino also suffered injuries. When the firing had stopped, they decided to bring Vicente to the hospital. As the jeep left the compound three (3) men came out of the Puzon Compound and fired at the fleeing vehicle. They were Cresencio Siazon, Ceferino Beltran and Noling Puzon. Likewise, Domingo Hernandez and Minong Beltran and Boy Bugarin tried to give chase. After a while, all the six men returned inside the compound. An hour after admission to the hospital Vicente Quirolgico died. Autopsy examination on the deceased Vicente Quirolgico showed the following findings: 1. Gunshot wound. inlet wound at the posterior portion of right Mid-axillary line, at the level of the 5th costal ribs at the back, traversing the right side of the chest, harrowing the right lung, and fracturing the four (4) postal ribs on the right side front causing an outlet wound almost six (6) inches long over the right side of the chest diagonally from above the right nipple downward near the right mid-axillary line. The inlet has almost one (1) cm. diameter. 2. Gunshot, wound left knee inlet wound at the exterior and posterior side of the left knee. almost (1) cm. diameter, directed towards the medial side of the left knee, fracturing the left knee and inlet wound two (2) inches long. 3. Gunshot wound of the right thigh, inlet wound, anterior on front side of the right thigh at the middle thirds, measuring almost one (1) cm. diameter. 4. Gunshot wound at the internal angle of the left eye inlet wound almost one (1) cm. diameter, directed downwards and medially traversing the right side of the face. CAUSE OF DEATH: INTERNAL HEMORRHAGE secondary to Gunshot wound of the chest and left eye. (Exh. "B", p. 10, Records). and the examination on Mayor Quirolgico shows the following injuries: (1) Wound, gunshot, face right; (2) Wound, gunshot, upper lips right; (3) Wound, gunshot, leg, right;

(4) Wound, gunshot, big toe, right; (5) Wound, gunshot, 2nd toe, right (Exh. "A-1", P. 22, Record) and on Patrolman Rolando Tolentino, the following injuries: (1) Wound, gunshot, amper fated index, middle and ring fingers, right; (2) Wound, lacerated, 1 cm. long, 1/3 cm. deep lumbar region, right; (3) Wound, lacerated 1/4 cm. long, 1/3 cm. deep forearm, left. (Exh. "A", p. 20, Record.) On November 23, 1982, this Court, upon receipt of the information of the death of appellant Cresencio Siazon alias Ising on February 17, 1982 due to "Cardio Respiratory Arrest Secondary to Carcinoma Liver, Pulmonary Tuberculosis," from Mr. Ramon J. Liwag, Officer-in-Charge, New Bilibid Prisons, Muntinlupa, as well as the Comment filed by the Solicitor General on the aforesaid information, Resolved to dismiss the case insofar as the criminal liability of the deceased Cresencio Siazon alias Ising is concerned. Appellant Rogelio Bugarin claims that between 5:00 and 5:30 in the afternoon of January 11, 1972,, the armed men inside the passing jeep of Mayor Quirolgico fired at Rogelio Bugarin, who was then standing at the main gate of Puzon Compound. After the armed men had passed by, Rogelio Bugarin proceeded to the office of Congressman Puzon where he met Ebing Beltran and Delfino Beltran who both asked him about the gun reports. They just dismissed the incident as no one was hurt. Rogelio Bugarin played guitar while waiting for supper. Around 10:30 in the evening of the same date, or after appellants had taken their supper at Puzon Compound, they heard an unusual sound which appeared to be a six by six truck that was bumped. Thereafter, at about 12:00 midnight of the same day, Delfino Beltran, posted himself as guard and positioned himself in front of the gate of the Rural Bank. While at the place he saw a group of persons, numbering more than ten, along the road in front of the Rural Bank. Among the group of armed men, he was able to recognize the Chief of Police of Ballesteros, Gavino Collado, holding a swinging flashlight, Gerry, Bundok Usita and Bunti Pinzon. When the group reached the gate of Puzon Compound, he peeped and took hold of the gate with an iron chain. Accidentally, he dropped the chain and it created a sound which caused the group of armed men to fire upon his direction for about half an hour. In retaliation, he loaded his gun following

which he saw a man falling down from the fence. As the firing continued, he stealthily mounted his gun on top of the fence and fired the same. When the firing ceased, he proceeded to the residence of Congressman Puzon. In the sala, he saw Boy Bugarin, Doming Hernandez, Ising Siazon, Noling Puzon, Ebing Beltran and Floresida Amayon, conversing. Upon seeing him, his companions asked him what was that firing all about. He told them that he traded shots with a group of armed men. Thereafter, they hid in the basement of the residence of the Congressman, staying there for one whole day. The following day, Delfino Beltran surrendered to Captain Retuta, while the rest escaped but thereafter surrendered. The defense of appellant Delfino Beltran, alias Minong, is self- defense; whereas appellants Rogelio Bugarin, alias Boy, Ceferino Beltran, alias Ebing, and Manuel Puzon, alias Noling denied having anything to do with the incident. In this appeal, appellants contend that the trial court erred in: (1) giving credence to the evidence for the prosecution; (2) holding that conspiracy existed among them in the commission of the offense charged in Criminal Case No. 158-S; (3) finding that treachery and evident premeditation attended the commission of the crimes; (4) not finding that appellant Delfino Beltran acted in self-defense; (5) finding appellants guilty of attempted murder with direct assault on Mayor Quirolgico and Pat. Rolando Tolentino; and (6) not appreciating in favor of the appellants the mitigating circumstance of voluntary surrender. On the first assigned error, We reiterate the established doctrine that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court, considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the hearing, unless it had overlooked certain facts of substance and value that, if considered, might affect the result of the case. The judgment of conviction is not bereft of evidence to support the same. Hereunder are the testimonies of the prosecution's eyewitnesses, namely: Carmelita Collado who declared the following: Q Will you inform the Honorable Court who was that one shouting?

A Minong Beltran, sir.

Q Will you inform the Court what was that?

Q During all these time that these were happening, the going out of Doming Hernandez, of Bugarin; the ordering of Minong Beltran to the two, did you see any other persons inside the compound of Congressman Puzon aside from the three?

A I heard the voice of Mr. Minong Beltran saying, 'Cida, Cida, you bring out the guns now I have already shot at the BRQ jeep and they are sure to come back.

A After the three had placed themselves in their respective positions, I saw persons coming out but I was not able to recognize them. (tsn., pp. 5-7, 42-45, Nov. 18, 1972 hearing.)

xxx xxx xxx

Mayor Bienvenido Quirolgico testified as follows:

xxx xxx xxx Q Can you tell us what you saw at that time?

Q And do you know what happened after you walked a few steps to the south?

A I saw these three persons, Minong Beltran, Boy Bugarin and Domingo Hernandez, sir.

A When I was looking very well around the vicinity, at the southern part of the Rural Bank about the corner of their fence, and as I tried to look intently, I recognized the face of Minong Beltran.

xxx xxx xxx

xxx xxx xxx Q What else did you see if any? A When these three persons came out, they were already

xxx xxx xxx Q Will you inform this Court what was that? A Upon coming out, Delfino Beltran ordered Doming Hernandez to go to the right side of the old office of Congressman Puzon and he also instructed Boy Bugarin to seek cover to the Rural Bank. xxx xxx xxx

Q At the precise moment, when you saw Minong Beltran at the corner of the Rural Bank, what else happened if any? A As I tried to look near them, that was the time when there was a burst of gun fire, the direction of which was coming from the place where they were staying. xxx xxx xxx Q Will you inform this Honorable Court who the other men were at that time? A Boy Bugarin and Domingo Hernandez. xxx xxx xxx Q And after the shooting, there was the shout? A At the lulling of the shooting, I heard the shout.

xxx xxx xxx Q And what were the words? A 'Nala na si Mayor' (The mayor is already hit). (tsn., pp. 20, 21, 31-32, 58-59, Nov. 17, 1972 hearing) Patrolman Rolando Usita stated that: Q You said that as the mayor was leaving the scene of the incident, you saw three of the accused coming out of the guardhouse, do you confirm that? A Yes, sir. xxx xxx xxx Q And the persons who came out from this point according to you are the accused Ising Siazon, Ebing Beltran and Noling Puzon, do you confirm that? A Yes, sir. Q And after that the three other accused named as Doming Hernandez, Boy Bugarin and Minong Beltran came out of the same compound? A No, sir. They came out from here. (tsn., pp. 84, 87, February 19, 1973 hearing) Chief of Police Gavino Collado also pointed out the following: Q May I see the sketch, your Honor? A The mayor took this road in going to the hospital (witness pointing to the Bonifacio Cortez Street), and as the jeep was going westward, and reached this point, three men came out from this part of the compound and they fired at the vehicle in which the mayor and his son rode on. xxx xxx xxx

Q So that the Court would now understand from your statement that it was only after the jeep of the mayor has left already the scene when three persons came out from the gate of the Puzon compound, that you saw for the first time these persons? A Yes, sir. Q And these persons were Identified as Ebing Beltran, Cresencio Siazon and Noling Puzon? A Yes, sir. (tsn., pp. 59, 80, January 9, 1973 hearing) The denial of appellants Rogelio Bugarin, Ceferino Beltran and Manuel Puzon cannot, therefore, prevail over their positive Identification, as the perpetrators of the crime by the aforenamed eyewitnesses who have not been shown to have any evil motive to testify falsely against them. Moreover, the physical evidence, as testified to by Dr. Gregorio R. Farin, Municipal Health Officer of Ballesteros, Cagayan, who conducted the post mortem examination on the body of the deceased Vicente Quirolgico, shows that several firearms could have caused his wounds: Q Considering the nature of the injuries that were found on the body of the deceased, could it be possible that several firearms could have caused these injuries? A It is possible. xxx xxx xxx Q It is also possible that wounds Nos. 2, 3 and 4 were caused by three different bullets, 3 different guns, different calibers? A Yes, sir. It is possible. (tsn., pp. 65-66, Nov. 17, 1972 hearing) The foregoing testimony of Dr. Farin finds support from the findings of witnesses Vicente de Vera, a Ballistician, and Lt. Col. Crispin Garcia, Chief Chemistry Branch, both of the Philippine Constabulary Crime Laboratory, Camp Crame, Quezon City, who conducted examinations on the empty shells and on the firearms, respectively, recovered from the premises of

the Rural Bank and the Puzon Compound. Vicente de Vera testified on direct examination, the following: Q Under your findings No. 1, will you inform us your conclusion? A My conclusion was that the 27 fired cartridges marked as CIS-1 to 27 were fired from the firearm marked as Exhibit 'R' (SIG Natu Rifle). Q Your other findings, please tell the Court. A Under findings Nos. 2: Microscopic examination and comparison of the 223 Cal. fired cartridge cases marked as CIS 28 to CIS 154 revealed the non-congruency of striations with the test cartridge cases fired from the abovementioned 223 caliber M16 Armalite rifle with Serial No. 527226. They further revealed the following:

whereas, Lt. Col. Crispin B. Garcia on the witness stand declared: Q With this request for examination of certain articles, what articles were actually submitted to you for examinations? A Well one (1) rifle SIG, Switzerland made with SN-5721, the barrel group bearing Serial Number 15721; the receiver group with SN-5720 and the barrel link bearing SN-9641, and another firearm (Exh. 'R'). Q Colonel aside from this article, Exhibit 'R', what other articles or guns did you receive for examination? A One Armalite with Serial No. 527226. (Exhibit 'S') xxx xxx xxx

1. CIS 28 to CIS 62 were fired from one (1) firearm; 2. CIS 63 to CIS 95 were fired from one (l) firearm; 3. CIS 96 to CIS 102 were fired from one (1) firearm; 4. CIS 103 to CIS 154 were fired from one (1) firearm Q May we know your conclusion of this findings of yours? A My conclusion is that, the 223 Caliber fired cartridges marked as CIS 28 to CIS 154 were fired from four different firearms but not from the aboveentioned 223 Cal. M16 Armalite with SN-527226. (tsn., pp. 29-30, January 8, 1973 hearing) and on cross-examination declared that: Q Supposing that there are three SIG rifles of the same Serial number and the fired cartridges from this three guns have the same number of similar characteristics or congruency of striations? A They can have no similar characteristics. Q Do you mean to say that for every SIG rifle there is its own characteristics; that congruency of striations? A That is correct. (tsn., p. 36, January 8, 1973 hearing)

Q With reference to the first rifle which you have mentioned, which is marked as Exhibit 'R', with different serial numbers, in the barrel group, receiver group, and the barrel link, will you inform this Honorable Court your findings? A I found that the barrel of the Armalite is positive for the presence of gunpowder, sir. xxx xxx xxx Q With reference to this Armalite, M15, marked as Exhibit 'S', in this particular case, will you tell us your findings about the presence of gunpowder? A Exhibit 'S', the barrel is positive of gunpowder. (tsn., pp. 52, 55, 57, & 58, January 8, 1973 hearing) The above findings further confirm the truth of the statements of eyewitnesses Gavino Collado, Patrolman Usita, Mayor Quirolgico and Carmelita Collado that appellants traded shots with the Mayor's group, using long or high powered guns. Anent the second assigned error, We agree with the trial court's finding on the existence of conspiracy. In the case at bar, the sequence of events that transpired in the evening of January 11, 1972, from the time Delfino Beltran first fired upon the passing jeep of Mayor Bienvenido Quirolgico,

driven by witness Ernesto Alvarado at around 9:00, the subsequent preparations for the arrival of the Mayor as testified to by eyewitness Carmelita Collado, the shooting on the other passing jeepney to further provoke the Mayor, and the simultaneous and sudden firing at the Mayor's group which had just arrived at about 12:00 midnight in the scene of the crime; the final shooting of the fleeing Mayor; and, the simultaneous common retreat and escape of all the accused, established the presence of conspiracy. For conspiracy to exist, it is enough that at the time the offense was committed, the participants had the same purpose and were united in its execution, as may be inferred from the attendant circumstances (People vs. Manalo, 133 SCRA 626). Further, conspiracy does not require an agreement for an appreciable period prior to the occurrence, as conspiracy legally exists if, at the time of the offense, the accused had the same criminal purpose and were united in its execution. Appellants' conduct and/or actuations before, during and after the commission of the crime charged in Criminal Case No. 158-S are circumstances proving conspiracy. Conspiracy having established, the act of one is the act of all. It is no longer necessary to specifically lay out the particular participation of each participant. Relative to the third assigned error, the trial court properly appreciated the existence of the aggravating circumstances of evident premeditation and treachery. From 9:00 in the evening to 12:00 midnight of the same day, appellants had three (3) long hours to meditate and reflect on their evil design and they clung in their determination to kill the Mayor, which fortunately failed. Premeditation is present where there was a lapse of two hours from the inception to execution. The existence of the aggravating circumstance of treachery was shown in the simultaneous and sudden firing by the accused on the newly arrived Mayor's group, without warning. We are convinced that they employed means, methods or forms which could have tended directly or insured the accomplishment of their evil design against the Mayor, with whom they have no personal grudge, without risk to themselves arising from the defense which the offended party had made. No one from herein appellants sustained a scratch as they were really prepared for the coming Mayor. With respect to the fourth assigned error, the claim of Delfino Beltran that he had just acted in self-defense, suffice it to say, that the one invoking this justifying circumstance must prove beyond reasonable doubt that all

the necessary requisites of self-defense are present, namely: (1) Unlawful aggression on the part of the offended party; (2) Reasonable necessity of the means employed to prevent or repel it; and, (3) Lack of sufficient provocation on the part of the person defending himself. Delfino Beltran had not proved any one of these. Thus, his claim of self-defense was properly dismissed by the trial court. Regarding the fifth assigned error, considering that Mayor Quirolgico is a person in authority and Pat. Rolando Tolentino is a policeman who at the time was in his uniform, and both were performing their official duties to maintain peace and order in the community, the finding of the trial court that appellants are guilty of attempted murder with direct assault on the persons of Mayor Quirolgico and Pat. Tolentino is correct. Relative to the last assigned error, following Our latest ruling in People vs. Nicolas Canamo, et al., G.R. No. 62043, promulgated on August 13, 1985, We agree with appellants that they should be credited with the mitigating circumstance of voluntary surrender, as they in fact presented themselves voluntarily to the authorities. However, this mitigating circumstance is offset by the aggravating circumstance of evident premeditation. WHEREFORE, in Criminal Case No. 158-S, with the modifications that for lack of necessary votes, the penalty imposed upon appellants Delfino Beltran alias Minong, Rogelio Bugarin alias Boy, Manuel Puzon alias Noling, Domingo Hernandez alias Doming and Ceferino Beltran alias Ebing, for the death of Vicente Quirolgico, is reduced to Reclusion Perpetua, and that the indemnity to the heirs of the deceased Vicente Quirolgico is increased to P30,000.00, the appealed decision is AFFIRMED in an other respects. For the double attempted murder with direct assault, applying the Indeterminate Sentence Law, the penalty imposed on the aforesaid appellants is reduced to four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum. In Criminal Case No. 160-S, applying also the Indeterminate Sentence Law, the penalty imposed to the accused Delfino Beltran is reduced to Six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum.With costs.SO ORDERED. Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION G.R. No. 70639 June 30, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO DOLLANTES, HAMLET DOLLANTES, ALFREDO DOLLANTES, LAURO DOLLANTES, MONICO DOLLANTES, SIDRITO LOKESIO, MERLANDO DOLLANTES, HUGO GRENGIA, DANNY ESTEBAN AND LEONILO VILLAESTER, accused-appellants.

PARAS, J: This is an appeal from a decision of the Regional Trial Court of Dumaguete City, 7th Judicial Region, Branch XL, in Criminal Case No. 5832, convicting the nine (9) accused, Pedro Dollantes, Hamlet Dollantes, Lauro Dollantes, Monico Dollantes, Sidrito Lokesio, Merlando Dollantes, Hugo Grengia, Danny Esteban and Leonilo Villaester, all equally guilty of the complex crime of "Assault upon a Person in Authority Resulting in Murder" and sentencing the abovementioned accused to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased, jointly and severally, the sum of P30,000.00 to pay attomey's fees in the amount of P3,000.00 and to pay the costs. All of the accused were charged as follows:

That on or about the 21st day of April 1983 at nighttime, in the Municipality of Tayasan, Province of Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and helping one another with evident premeditation and treachery, and with intent to kill did then and there, willfully, unlawfully and feloniously attack, assault and stab one Marcos Gabutero, Barangay Captain of Maglihe, Tayasan, Negros Oriental, an agent of a person in authority and which fact accused had full knowledge, while the latter was in the lawful performance of his official duty or function as Barangay Captain or on the occasion of such function, with a bolo and hunting knives with which the accused were then armed and provided, thereby inflicting the following wounds in the victim, viz: 1. Stab wound measuring three and a half (3 1/2) cm. in length and half (1/2) cm. in width, ten (10) cm. depthness located at the left anterior aspect of the trunk at the level of the 3rd intercostal space, 5 cm. away from the anterior mid-line. The wound was oriented horizontally and directed vertically and slightly to the back. Ventricle and lung tissue penetrated. 2. Stab wound measuring four (4) cm. in length, 1 cm. in width, eleven and a half (11 1/2) cm. depthness, located at the right anterior aspect of the trunk, at the level of the 2nd intercostal space about five (5) cm. away from the anterior and midline, the wound was oriented horizontally and directed downward and slightly to the back. 3. Incised wound five (5) cm. in length, 1 cm. in width located at the left anterior aspect of the trunk about 26 cm. below the left clavicle and four (4) cm. away from the anterior mid-line. The wound was oriented obliquely. 4. Incised wound measuring two (2) cm. in length and one (1) cm. in width, located at the right anterior aspect of the trunk about twenty-one (21) cm. below the right clavicle and eight (8) cm. away from the anterior line. The wound was oriented obliquely. 5. Incised wound measuring one and a half (1 1/2) cm. in length, half (1/2) cm. in width located at the anterior aspect of the upper extremity about nine (9) cm. above the wrist joint one and a half (1 1/2) cm. away from the anterior mid-line and medially. The wound was oriented vertically.

6. Incised wound measuring four (4) cm. in length, 1 cm. in width located at the lateral aspect of the right upper extreme about five (5) cm. above the elbow joint and five (5) cm. away from the posterior midline laterally. The wound was oriented horizontally. 7. Through and through stab wound located at the left upper extremity the wound of entrance measuring about three and a half (3 1/2) cm. in length and one (1) cm. in width located at the posterior aspect of the forearm above five (5) em. below the elbow joint, three (3) cm. away from the anterior mid-line medially. The wound was oriented vertically. 8. Incised wound measuring 3 cm. in length half (1/2) cm. in width located at the lateral aspect of the left upper extremity about five (5) cm. below the elbow joint and (5) cm. away from the posterior mid-line. The wound was oriented horizontally. 9. Stab wound measuring one and one-half (1 1/2) cm. in width and four (4) cm. depthness located at the left anterior aspect of the trunk, about seven and a half (7 1/2) cm. above the ihac crest and twelve (12) cm. away from the anterior mid-line. The wound was oriented obliquely and directed downward, slightly to the right and posteriority, perforating part of the intestine. 10. Stab wound measuring three (3) cm. in length, one (1) cm. in width and seven and a half (7) cm. in depthness, located at the left posterior of the trunk about three (3) cm. above the lower angle of the scapula, and seven (7) cm. away from the posterior mid-line. The wound was oriented obliquely and directed downward and slightly to the left. 11. Stab wound measuring three(3) cm. in length, one (l) cm. in width and twelve (12) cm. in depthness, located at the left posterior aspect of the trunk about thirteen (13) cm. below the lower angle of the scapula and six (6) cm. away from the posterior mid-line. The wound was oriented obliquely and directed anteriority to the left. 12. Hemothorax on the left pleural cavity, which wounds caused the latter's untimely death. Contrary to Art. 248, 148 and 48 of the Revised Penal Code.

That deceased Marcos Gabutero at the time of his death was the Barangay Captain of Barangay Maglihe, Tayasan, Negros Oriental; that due to the approaching fiesta of barangay Maglihe, a dance was held in said barangay in the evening of April 21, 1983; that while the Barangay Captain was delivering a speech to start the dance, the accused Pedro Dollantes went to the middle of the dancing floor, making a dance movement known in the visayan as "nagkorantsa", brandishing his knife and challenging everyone as to who was brave among the people present; the Barangay Captain approached Pedro Dollantes and admonished him to keep quiet and not to disturb the dance. However, the accused, instead of heeding to the advice of the Barangay Captain, stabbed the latter on the left arm; that accused Hugo Grengia held the left hand of accused Pedro Dollantes and Dionilo Garol was able to get from the hand of Pedro Dollantes the hunting knife. Immediately thereafter, accused Hamlet Dollantes, who rushed towards the Barangay Captain, stabbed the Barangay Captain at the back and the other co-accused also took turns in stabbing the Barangay Captain; the Barangay Captain at that time was not armed. Except for the accused Hugo Grengia, Danny Esteban and Leonilo Villaester who were merely holding stones, the other co-accused participated in the stabbing incident. When the Barangay Captain fell to the ground and died, the accused in this case took turns in kicking the dead body of the Barangay Captain and were dancing around said dead body; that the Barangay Captain suffered eleven (11) wounds in the different parts of his body, two of which happened to be at the back of his dead body. According to the attending physician, Dr. Rogelio Kho who examined the body of the deceased, the victim died of "Severe hemorrhage and cardiac tamponade due to stab wounds." (Decision, Crim. Case No. 5832, Rollo, p. 75). The evidence for the prosecution consisted principally of the testimonies of Dionilo Garol, Bonifacio Cero, Marciana Gabutero, the wife of the deceased, Pat. Ricardo Barrera, Dr. Rogelio Kho who conducted the post mortem examination of the deceased, Ponsimillo Balasabas, the Municipal Treasurer of Tayasan, Negros Oriental and Pat. Jose Amis of the Integrated National Police. On the other hand, the defense presented the following witnesses: Accused: Hugo Grengia, Leonilo Villaester, Danny Esteban, Alfredo Dollantes, Hamlet Dollantes, and other witnesses: Machim Dollantes and Tacio Fausto.After a careful evaluation of the evidence, the trial court was convinced that all the accused in this case conspired in the commission of the crime.

(Information, Original Record, pp. 3-4) The findings of facts of the trial court are as follows:

Thus on February 20, 1985, the trial court rendered its decision finding all the accused guilty of the complex crime of assault upon a person in

authority resulting in murder. The dispositive portion of the decision reads as follows: WHEREFORE, the prosecution having proven the guilt of all the accusedbeyond reasonable doubt, this Court hereby finds the accused Pedro Dollantes, Hamlet Dollantes, Alfredo Dollantes, Lauro Dollantes, Monico Dollantes, Sidrito Lokesia, Merlando Dollantes, Hugo Grengia, Danny Esteban and Leonilo Villaester, guilty of the complex crime of assault upon a person in authority resulting in murder, and hereby sentences the above-mentioned accused to suffer the penalty of reclusion perpetua and to indemnify the heirs of Marcos Gabutero, jointly and severally, the sum of Thirty Thousand (P30,000.00) PESOS, to pay attorney's fees in the amount of Three Thousand (P3,000.00) Pesos, and to pay the costs of the proceedings. SO ORDERED. (RTC Decision, Rollo, p. 79) From the aforementioned decision, all the accused appealed. Accused Hugo Grengia submitted a separate brief. The appellant raised the following assignment of errors: FIRST ERROR

THE TRIAL COURT ERRED FROM NOT GIVING WEIGHT TO THE TESTIMONY OF ACCUSED HUGO GRENGIA, LEONILO VILLAESTER alias "Laon," DANILO ESTEBAN, HAMLET DOLLANTES, ALFREDO DOLLANTES AND THE TESTIMONY OF INDEPENDENT WITNESSES TACIO FAUSTO AND MCLEAN DOLLANTES. FIFTH ERROR THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE COMPLEX CRIME OF ASSAULT UPON A PERSON IN AUTHORITY RESULTING TO MURDER AND SENTENCING THEM TO SUFFER THE PENALTY OF RECLUSION PERPETUA AND TO INDEMNIFY THE HEIRS OF MARCOS GABUTERO, JOINTLY AND SEVERALLY, THE SUM OF THIRTY THOUSAND (P30,000.00) PESOS, and TO PAY THE COSTS OF THE PROCEEDINGS. (Brief for Accused-Appellant, Rollo, p. 62) In his separate brief, accused Hugo Grengia assigns the following errors: 1. The lower court erred in not giving weight and credence to the admission of accused-appellant Hamlet Dollantes that he was the lone perpetrator of the alleged stabbing of victim Marcos Gabutero.

THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDIT TO THE BIASED, INCREDIBLE AND CONTRADICTORY STATEMENTS OF THE PROSECUTION WITNESSES DIONILO GAROL, BONIFACIO CERO AND MARCIANA GABUTERO AND IN NOT CONSIDERING AT LEAST THE UNCONTRADICTED TESTIMONY OF INDEPENDENT WITNESSES DOLLANTES AND TACIO FAUSTO.

2. The lower court erred in not considering the testimonies of prosecution witnesses, namely: Patrolman Ricardo Barrera, Dr. Rogeho Kho which in effect buttressed the theory of the defense.

SECOND AND THIRD ERRORS

4. The lower court erred in holding that conspiracy exist in perpetration of the felony.

THE TRIAL COURT ERRED IN NOT GIVING WEIGHT TO THE EXPERT PROSECUTION WITNESS DR. ROGELIO R. KHO WHICH IN EFFECT CONTRADICTS THE THEORY OF THE PROSECUTION AND THAT THE TRIAL COURT ERRED IN DECIDING THAT CONSPIRACY EXISTS. FOURTH ERROR

3. The lower court erred in not considering the entry in the police logbook of the Tayasan Integrated National Police, dated April 21, 1983, as testified to by Patrolman Jose Amis.

5. The lower court erred in holding that the case of People vs. Agag (L64951, June 29, 1984) is applicable to the case at bar to justify the conviction of the accused-appellants. 6. The lower court erred in not giving weight and credence to the testimony of the defense witnesses.

7. Finally, the trial court erred in holding that the accused-appellant herein is guilty of the crime charged. (Brief for accusedappellant Hugo Grengia, pp. 1-2)

Danny Esteban stoned him because they intended to kill him also. He also testified that when he returned to the crime scene, he saw Hugo Grengia, Danny Esteban and companions simultaneously kicking the dead body and shouting "who is brave among here. "

The appeal is without merit. The issue hinges on the credibility of witnesses. The accused were positively identified by three (3) prosecution eye witnesses. They were: Dionilo Garol, Bonifacio Cero and Marciana Gabutero, the wife of the victim. Except for the latter, the two other witnesses Garol and Cero are not related to the victim or the accused. The testimonies of these three (3) witnesses were subjected to a lengthy crossexamination and were found credible and free from material contradictions by the trial court (Rollo, p. 75). Dionilo Garol who was six (6) meters away, saw clearly what happened. He testified that when the Barangay Captain started to deliver his speech, the accused Pedro Dollantes brandishing a knife shouted "Who is brave here?" (TSN, page 6, Oct. 7, 1983). The victim then approached to admonish him t the latter stabbed the victim on the arm. Garol immediately approached the accused Pedro Dollantes and tried to wrest the knife away from the hand of the accused. The accused Hugo Grengia also tried to grab the knife but it was Garol who succeeded. The accused Grengia then told him "Do not try to intervene because you might be included in the plan." (TSN, page 8, Oct. 17, 1983). Then Grengia made some signs by nodding his head and the accused Hamlet Dollantes and Alfredo Dollantes rushed to and attacked the victim followed by the other co-accused in this case who also rushed at and stabbed the victim. He specified that accused Alfredo Dollantes, Lauro Dollantes, Monico Dollantes and Sidrito Lokesio were carrying knives while the accused Merlando Dollantes was carrying a bolo; and that they stabbed the victim one after another. He said that the accused Danny Esteban, Hugo Grengia andLeonilo Villaester were all carrying stones which they threw at the store of the victim's wife (TSN, pp. 7-10; Oct. 17, 1983). This testimony was fully corroborated by another prosecution eyewitness Bonifacio Cero who was about three (3) meters away and whose narration tallied on all material ints with that of Dionilo Garol as to what transpired that night. He stated further that when he saw the Barangay Captain being stabbed he tried to approach the group but he was held by Danny Esteban who said "do not try to interfere, you are not a party to this. We have already gotten what we have been aiming for." (TSN, page 12, Oct. 18, 1983). Thereafter, he ran away but Alfredo Dollantes, Pedro Dollantes and

Marciana Gabutero, the wife of the victim funy corroborated the testimonies of Garol and Cero. She also added that Hugo Grengia wanted to be a Barangay Captain and she happened to know that as a fact, because he told the crowd not to long as Barangay Captain. She also testified that the accused Leonilo Villaester splashed one glass of tuba on the face of the deceased and that the victim had had a misunderstanding with the Dollantes on a theft case involving Hamlet Dollantes (Rollo, pp. 68-69). It will be noted that the above witnesses were categorical and straightforward when they stated that they saw appellants stab the victim. They even specified the type of weapon used by each of said appellants. There is no possibility that they could have been mistaken in their Identification for apart from being near the crime scene which was well illuminated with two Petromax lamps (TSN, page 6, Oct. 19, 1983), these witnesses are familiar with the appellants since they are all residents of the same locality. Furthermore, there is no showing that the witnesses had any motive to testify falsely against the appellants. In fact, under similar circumstances, the Court has held that where the scene of the stabbing was clearly lighted and no motive was shown why prosecution witnesses would incriminate the appellants, identification would be given full faith and credit (People v. Escoltero, 139 SCRA 218). The theory of the defense in this case is that it was only the accused Hamlet Dollantes who stabbed the victim while the other accused did not participate in the stabbing incident (Rollo, pp. 75-76). In an attempt to disprove the findings of the trial court, appellants pointed out that there are certain inconsistencies that render the testimonies of prosecution witnesses, incredible. For one thing they claim that Dionilo Garol could not have een Hamlet Dollantes stab the victim because as Garol himself stated, when said accused rushed towards the victim, he ran away. The evidence shows however, that Garol clearly testified that he saw au of them stab the Barrio Captain, one after another and it was only after the Barrio Captain fell to

the ground that he ran towards the municipal hall to report the incident to the police (TSN, page 11, Oct. 17, 1983). Another circumstance allegedly raising grave doubts on the credibility of Dionilo Garol was his failure to report to the police authorities the fact of stoning (Rollo, pp. 71-72). However, the fact of stoning was not the means used to kill the victim and the omission of the same in the narration in the report does not detract from the established fact that the victim was stabbed several times which caused his death. It was also pointed out that Dionilo Garol testified that the store of the victim's wife was stoned while Bonifacio Cero also testified that he was the one being stoned. There appears to be no inconsistency between the two testimonies. The fact that the store of the victim's wife was stoned does not preclude the possibility that Bonifacio Cero was also stoned. Finally, appellants maintain that Bonifacio Cero could not have seen with precision the stabbing of the victim while he was being hugged by Danny Esteban and he had a feeling that he would be killed by the group. Much less could it be possiblefor accused Danny Esteban, Leonflo Villaester, Sidrito Lokesio and Alfredo Dollantes who were at the store of Severina Cadillero, to join in stabbing the victim, the appellants argued (Rollo, pp. 73-74). The records show that Cero testified that he saw appellants stab the deceased before he was embraced by appellant Danny Esteban who told him "do not interfere you are not a party to this. We have already gotten what we have been aiming for." (TSN, page 12, Oct. 18, 1983). Clearly, the language is unmistakable that in that at said point, the stabbing and the killing being described by all the witnesses had already been accomphshed. Indeed, if there be any inconsistency or contradictions in their testimonies, the same are trivial and merely refer to minor matters which do not affect credibility. They do not detract from the essential facts or vital details of the crime pinpointing their criminal responsibility (Appellee's Brief, p. 16). As held by this Court, discrepancies in minor details are to be expected from an uncoached witness (People v. Arbois, 138 SCRA 31). Such minor variations would rather show the sincerity of the witnesses and the

absence of connivance between them to make their testimonies tally in every respect (People v. Pielago, 140 SCRA 419, 423). Truth to tell, such trivial differences constitute fail-safe reliability. Accused Hugo Grengia claims that the trial court erred in not giving weight to the admission of accused Hamlet Dollantes that he was the lone perpetrator of the killing incident (Brief for Accused-Appellant Hugo Grengia, p. 7). Thus the defense argues that the accused Pedro Dollantes, Alfredo Dollantes, Merlando Dollantes, Lauro Dollantes, Sidrito Lokesio, Monico Dollantes and Leonilo Villaester, did not stab the victim and were not at the scene of the crime and that it was only accused Hamlet Dollantes who stabbed the victim. As found by the trial court, such claim is not supported by sufficient evidence. On the contrary, an entry in the Police Logbook (Exhibit "D") of the Integrated National Police of Tayasan, Negros Oriental, shows that one Gloria Callao, wife of the accused Lauro Dollantes, turned over to the police two (2) hunting knives owned by the accused Hamlet Dollantes and Alfredo Dollantes. Moreover, as correctly pointed out by the Solicitor General, such theory is behed by the Identification made by the prosecution witnesses and by the number and location of the victim's wounds which are mute evidence that several persons comn)itted the crime (People's Brief, p. 17). As repeatedly held by the Supreme Court, the claim of alibi by the accused cannot prevail over positive Identification by credible witnesses (People v. Tirol, 102 SCRA 58); more so where as in the case at bar, it was not demonstrated that it was physically impossible for the accused to have been at the scene of said crime at the time of its commission (People v. Mercado, 97 SCRA 232). On the other hand, the claim of Hamlet Dollantes of self-defense when he stabbed the victim is not sustained by the records. As found by the trial court, the victim was not armed at the time of the incident, so that there was no danger to the life and limb of the accused. The latter claims that he had to stab the victim who boxed him and would not release his wounded hand (Rollo, p. 76). Apart from the obvious disproportion of the means used to repel the alleged attack, three witnesses of the prosecution testified that the accused Hamlet Dollantes rushed towards the victim and stabbed the latter at the back. Said testimonies were corroborated by the Post Mortem Examination (Exhibit "A") and the Sketch (Exhibit "B") of the human body of the victim which showed a stab wound at the back. Furthermore, the nature, character, location and extent of the wound suffered by the victim, negates the accused's claim of self-defense. (People v. Tolentino, 54 Phil. 77). In fact, the eleven (11) wounds suffered by "he victim are indicative of

aggression (People v. Somera, 83 Phil. 548; People v. Mendoza, L-16392, Jan. 30, 1965). Accused-appellant Hugo Grengia submits that the prosecution failed to prove the existence of conspiracy. Among others, he pointed out that he was unarmed at the time of the incident, that his name was not mentioned in the report made by Dionilo Garol to Patrolman Barrera as to the perpetrators of the crime; that his name was not included in the entry in the police logbook of the Integrated National Police of Tayasan, Negros Oriental and that he had no participation in the commission ofthe felony except the alleged nodding of his head at a time when he was trying to wrest the knife from Pedro Dollantes which is not an indication of conspiracy (Brief for Grengia, pp. 13-16). While it is true that the accused Hugo Grengia, Danny Esteban and Leonilo Villaester did not participate in the stabbing, the lower court finds them equally liable as principals with the other accused in this case. They were found to be holding stones which they threw at the store owned by the victim and his wife; they participated in kicking and dancing around the dead body of the Barangay Captain and although Grengia also tried to wrest the knife from Pedro Dollantes, he clearly told Dionilo Garol when the latter succeeded in getting the knife and was holding the hands of Pedro Dollantes, "do not try to intervene here because you might be included in the plan." (TSN, pp. 7-10, Octoer 17, 1983). Danny Esteban uttered the same statements to Bonifacio Cero, saying "do not try to interfere you are not a party to this. We have already gotten what we have been aiming or." (TSN, pp. 9-14, October 18,1983). Furthermore, as previously stated, while the victim was delivering a speech, Hugo Grengia was telumg people not to listen to the victim as he will not stay long as a Barangay Captain. It is also to be noted that although he was a compadre of the victim, he never tried to help the former while he was being stabbed and after the incident, he never visited the victim's family. Thus, the lower court found the existence of conspiracy as follows:

The accused Hugo Grengia, Danny Esteban and Leonilo Villaester by their acts, aimed at the same object, and their acts, though apparently independent, are in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. The conduct of the defendants, before, during and after the commission of the crime clearly shows that they acted in concert. (People v. Emilio Agag, L64951, June 29, 1984, Justice Relova) There being conspiracy, the Court finds them guilty of Murder. (Decision, Crim. Case No. 5832, Rollo p. 77) In one case, this Court held "that while the acts done by the petitioners herein vary from those of their co-accused, there is no question that they were all prompted and linked by a common desire to assault and retaliate against the group..... Thus, they must share equal liability for all the acts done by the participants in the felonious undertaking." (Pring v. Court of Appeals, 138 SCRA 185-186 [1985]). Appellant Hugo Grengia lays much stress on the testimony of Dr. Rogeho Kho that it is possible that all the stab wounds were inflicted by the same weapon, in a desperate effort to show that only one person committed the crime and that there is no conspiracy. The records show however, that said Doctor merely replied to he questions propounded by the defense lawyer as to the different possibilities on how the wounds of the victim may have been inflicted. But testifying specifically on the case at bar, he categorically stated that actually the wounds could be produced by a single bladed weapon with different sizes but not necessarily only a single bladed weapon. Thus, the Doctor testified as follows: Atty. Jayme: Q Basing upon your physical findings, Doc, upon the victim Marcos Gabutero, is it possible Doc, that in accordance with your drawing that the wounds inflicted was caused by a single bladed weapon, is it possible, Doctor, that this wound was caused by a single bladed weapon? Is it possible that this. I repeat the question, your Honor. Q According to your drawing which is labelled "BS" which according to you "blunt and sharp bladed weapon which is practically single bladed weapon, according to your physical findings there is similarly in the weapons used, could we say practically, Doctor, that these stab wounds as well as those incised wounds may be caused by one single-bladed weapon?

A Actually it could be produced by a single bladed weapon with different sizes but not necessarily only a single bladed weapon. Q According to you it was a single bladed weapon with different or several sizes, now, what is your honest observation upon your physical findings, what will be themaximum weapon used? I have here a zerox copy for your own reference. A With respect to the length of the wound there are two wounds that have three em. in length, it could be possible that the same kind of weapon or instrument has been used. This refers to Wounds Nos.10 and 11. By the way, Sir, this refers to the stab wounds because the size of the incised wounds is difficult to determine. Atty. Jayme:

Finally, the records show that the Barangay Captain was in the act of trying to pacify Pedro Dollantes who was making trouble in the dance hall when he was stabbed to death. He was therefore killed while in the performance of his duties. In the case of People v. Hecto (135 SCRA 113), this Court ruled that "As the barangay captain, it was his duty to enforce the laws and ordinances within the barangay. If in the enforcement thereof, he incurs, the enmity of his people who thereafter treacherously slew him the crime committed is murder with assault upon a person in authority." There is no qeustion that the trial court's conclusions on credibilitY of witnesses are entitled to great weight on appeal. (People v. Oliverio, 120 SCRA 22). After a careful review of the records, no plausible reason could be found to disturb the findings of fact and of law of the lower court in this case.PREMISES CONSIDERED, the assailed decision is hereby AFFIRMED.SO ORDERED. Republic of the Philippines SUPREME COURT Manila

Yes, the stab wounds only. A It's hard to determine Wound No. 9 because the length is not indicated here, so it is possible that there are 3 or 4 kinds of instrument or weapons being used. (TSN, pp. 26- 27, December 15, 1983) Appellant Hugo Garcia also emphasizes the testimony of Dr. Kho that the latter did not observe any contusions on the body of the deceased, obviously to disprove that appellants danceda round and kicked the body after the victim was slain. As correctly observed by the Solicitor General, "although the examining doctor failed to find any contusion or abrasion on the cadaver of the victim, nevertheless, such absence is not conclusive proof that appellants did not kick the deceased. It might be possible that kicks did not cause or produce contusions or abrasions or that they were not noticed by the doctor." (Appellee's Brief, p. 22). Moreover, the fact of dancing and kicking complained of, is only one of the acts showing conspiracy, without which, conspiracy cannot be said not to have been established. The lower court also found that treachery was present in the commission of the crime, and that the accused Alfredo Dollantes, Lauro Dollantes, Monico Dollantes, Sidrito Lokesio and Merlando Dollantes are as equally guilty as principals by direct participation. These accused took turns in stabbing the victim. In fact the victim was caught by surprise and did not have time to defend himself.

SECOND DIVISION G.R. No. L-31839 June 30, 1980 EDMUNDO S. ALBERTO, Provincial Fiscal and BONIFACIO C. INTIA 1st Asst. Provincial Fiscal, both of Camarines Sur, petitioners, vs. HON. RAFAEL DE LA CRUZ, in his capacity as Judge of the CFI of Camarines Sur and ELIGIO ORBITA,respondents. CONCEPCION, J.: Petition for certiorari, with a prayer for the issuance of a writ of preliminay injunction, to annul and set aside the order of the respondent Judge, dated January 26, 1970, directing the petitioners, Provincial Fiscal and Assitant Provincial Fiscal of Camarines Sur, to amend the information filed in Criminal Case No. 9414 of the Court of First Instance of CamarinesSur, entitled: "The People of the Philippines, plaintiff, versus Eligio Orbita, accused," so as to include, as defendants, Governor Armando Cledera and Jose Esmeralda, assistant provincial warden of Camarines Sur; as well as the order dated February 18, 1970, denying the motion for the reconsideration of the said order.

In Criminal Case No. 9414 of the Court of First Instance of Camarines Sur, Eligio Orbita, a Provincial guard, is prosecuted for the crime of Infedelity in the Custody of Prisoner, defined and punished under Article 224 of the Revised Penal Code, committed, as follows: That on or about the 12th day of September. 1968, in the barrio of Taculod, municipality of Canaman, province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the Provincial Guard of Camarines Sur and specially charged with the duty of keeping under custody and vigilance detention prisoner Pablo Denaque, did then and there with great carelessness and unjustifiable negligence leave the latter unguarded while in said barrio, thereby giving him the opportunity to run away and escape, as in fact said detention prisoner Pablo Denaque did run away and escape from the custody of the said accused. 1 In the course of the trial thereof, or more particularly during the crossexamination of prosecution witness Jose Esmeralda, assistant provincial warden of Camarines Sur, the defense brought forht and confronted the witness with a note, marked as exhibit, purportedly written by Gov. Armando Cledera, asking Jose Esmeralda to send five men to work in the construction of a fence at his house at Taculod, Canaman, Camarines Sur, then leased by the province and used as an official guest house. Jose Esmeralda, declared, however, that he could not remember who ahnded the note for him; that he was not sure as to genuineness of the signature appearing therein and that he was not preszent when the note was made and signed by Gov. Cledera. 2 Beleiving that the escape of Pablo Denaque was made possible by the note of Gov. Cledera to Jose Esmeralda and that Cledera and Esmeralda are equally guilty of the offense for which tha accused Eligio Orbita had been charged, the defense cousel filed a motion in court seeking the amendment of the information so as to include Gov. cledera and Jose Esmeralda as defendants therein. 3 Acting upon said motion, as well as the opposition of the prosecution officers 4 and finding that "the court cannot grant the motion or order the inclusion of Gov. Cledera and Lt. Esmeralda at this stage unless an investigation is made," the respondent Judge directed the Fiscals office, within 15 days from date, to cause the further investigation of the case, taking into consideration the provisions of Article 156 in relation to Articles 223 and 224 of the Revised Penal Code in order to determine once and for all whether the Governor as jailer of the Province and his assistant have any criminatory participation in the circumstances of Pablo Denaque's escape from judicial custody. 5

In compliance with said order, the Fiscal set the reinvestigation of the case for December 19, 1969. Summonses were issued to Gov. Cledera Jose Esmeralda, Lorenzo Padua, the provincial warden, and the accused Eligio Orbita to be present thereat. 6 Dr. went thereat But, on the date set for the reinvestigation of the case, only Gov. Cledera Jose Esmeralda and Lorenzo Padua appeared. The accused Eligio Orbita did not appear. Neither was the note (Exhibit 2) produced. Since no additional evidence was presented, the Fiscal manifested in Court on January 2, 1970 that "after conducting a reinvestigation of the case and after a thorough and intelligent analysis of the facts and law involved, no prima facie case against Governor Cledera and Jose Esmeralda exist, hence, they cannot be charged. 7 On January 19, 1970, the accused Eligio Orbita filed a "Motion for Reconsideration" praying "that the Order of this Honorable Court dated December 11, 1969 be, in that instead of ordering the Fiscal to reinvestigate this case, on the basis of the evidence already adduce during the trial of this case, he be ordered to amend the information on to include Cledera and Esmeralda it appearing the on record that their inclusion is warranted. 8 On January 26, 1970, the respondent Court issued the order complained of, the dispositive portion of which reads, as follows: WHEREFORE, premises considered, in the light of the facts brought about by the prosecuting fiscal let the charges be so amended by including in the information the author or writer of Exhibit 2 and the person or persons who carried out the said orders considering the provisions of Article 156 in relation to Articles 223 and 224 of the Penal Code. 9 The Fiscal filed a motion for the reconsideration of said order, 10 but the motion was denied on February 18, 1970. 11Hence, the instant recourse. From the facts of the case, We are convinced that the respondent Judge committed an error in ordering the fiscal to amend the information so as to include Armando Cledera and Jose Esmeralda as defendants in Criminal Case No. 9414 of the Court of First Instance of Camarines Sur. It is the rule that a fiscal by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof. 12 Although this power and prerogative of the Fiscal, to determine whether or not the evidence at hand is sufficient to form a reasonable belief that a person committed an offense, is not absolute and subject to judicial review, 13 it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so because in his opinion, he does not

have the necessary evidence to secure a conviction, or he is not convinced of the merits of the case. The better procedure would be to appeal the Fiscal's decision to the Ministry of Justice and/or ask for a special prosecutor. Besides, it cannot be said that the Fiscal had capriciously and whimsically refused to prosecute Cledera and Esmeralda. In his order directing the Fiscal's office to conduct a further reinvestigation of the case, the respondent Judge candidly ad. muted that without a reinvestigation of the case, he cannot determine once and for all whether or not to include Gov. Cledera and Jose Esmeralda in the information. Pursuant thereto, a reinvestigation was conducted by the fiscals office. Summonses were issued. But, no additional fact was elicited since Eligio Orbita did not appear thereat. Neither was the note (Exh. 2) presented and produced. Gov. Cledera could not admit nor deny the genuineness of the signature appearing in the note since it was not on hand. Such being the case, the prosecuting officers had reason to refuse to amend the information filed by them after a previous pre examination and investigation. Moreover, there is no sufficient evidence in the record to show a prima facie case against Gov. Cledera and Jose Esmeralda. The order to amend the information is based upon the following facts: 1. Pablo Denaque, a detention prisoner for homicide, while working at the Guest House of Governor Cledera on September 12, 1968; 2. The Governor's evidence at that time is being rented by the province and its maintenance and upkeep is shouldered by the province of Camarines Sur, 3. That neither Governor Cledera nor Lt. Jose Esmeralda was charged or entrusted with the duty of conveying and the detainee from the jail to the residence of the governor. 4. That the de worked at the Governor Is by virtue of an order of the Governor (Exhibit 2) which was tsn by Lt. Esmeralda; and 5. That it was the accused Orbita who himself who handpicked the group of Prisoners to work at the Governor's on 12, 1968. 14 Article 156 of the Revised Penal Code provides:

Art. 156. Delivering prisoners from jails. — The city Of arrests mayor in its maximum period to prison correccional in its minimum Period shall be imposed upon any person who shall remove from any jail or penal establishment t any person confined therein or shall help the escape of such person, by means of violence, intimidation, or bribery. If other means are used the penalty of arresto mayor shall be imposed. If the escape of the prisoner shall take place outside of said establishments by taking the guards by surprise, the same penalties shall be imposed in their minimum period. The offenders may be committed in two ways: (1) by removing a person confined in any jail or penal establishment; and (2) by helping such a person to escape. To remove means to take away a person from the place of his confinement, with or without the active compensation of the person released To help in the escape of a Person confined in any jail or penal institution means to furnished that person with the material means such as a file, ladder, rope, etc. which greatly facilitate his escape. 15 The offenders under this article is usually committed by an outsider who removes from jail any person therein confined or helps him escape. If the offender is a public officer who has custody or charge of the prisoner, he is liable for infidelity in the custody of prisoner defined and penalty under Article 223 of the Revised Penal Code. Since Gov. Cledera as governor, is the jailer of the province, 16 and Jose Esmeralda is the assistant provincial warden, they cannot be prosecuted for the escape Of Pablo Denaque under Article 156 of the Revised Penal Code. There is likewise no sufficient evidence to warrant their prosecution under Article 223 of the Revised Penal Code, which reads, as follows: ART. 223. Conniving with or consenting to evasion. — Any Public officer who shall consent to the escape of a prisoner in his custody or charge, shall be punished 1. By prision correccional in its medium and maximum periods and temporary disqualification in its minimum period to perpetual special disqualification, if the fugitive shall have been sentenced by final judgment to any penalty. 2. By prision correccional in its minimum period and temporary special disqualification, in case the fugitive shall not have been finally convicted but only held as a detention prisoner for any crime or violation of law or municipal ordinance.

In order to be guilty under the aforequoted provisions of the Penal Code, it is necessary that the public officer had consented to, or connived in, the escape of the prisoner under his custody or charge. Connivance in the escape of a prisoner on the part of the person in charge is an essential condition in the commission of the crime of faithlessness in the custody of the prisoner. If the public officer charged with the duty of guarding him does not connive with the fugitive, then he has not violated the law and is not guilty of the crime. 17 For sure no connivance in the escape of Pablo Denaque from the custody of the accused Eligio Orbita can be deduced from the note of Gov. Cledera to Jose Esmeralda asking for five men to work in the guest house, it appearing that the notes does not mention the names of the prisoners to be brought to the guest house; and that it was the accused Eligio Orbita who picked the men to compose the work party. Neither is there evidence to warrant the prosecution of Cledera and Esmeralda under Article 224 of the Revised Penal Code. This article punishes the public officer in whose custody or charge a prisoner has escaped by reason of his negligence resulting in evasion is definite amounting to deliberate non- performance of duty. 18 In the constant case, the respondent Judge said: We cannot, for the present be reconciled with the Idea that the escape. of Denaque was facilitated by the Governor's or . his assistants negligence. According to law, if there is any negligence committed it must be the officer who is charged with the custody and guarding of the ... 19 We find no reason to set aside such findings. WHEREFORE, the orders issued on January 26, and February 18, 1970 in Criminal Case No. 9414 of the Court of First Instance of Camarines Sur, entitled: "The People of the Philippines, plaintiff, versus Eligio Orbita, accused are hereby annulled and set aside. The respondent Judge or any other judge acting in his stead is directed to proceed with the trial of the case. Without costs.SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-27191

February 28, 1967

ADELAIDA TANEGA, petitioner, vs. HON. HONORATO B. MASAKAYAN, in his capacity as Judge of the Court of First Instance of Rizal, Branch V, and the CHIEF OF POLICE OF QUEZON CITY, respondents. Ramon V. Sison for petitioner. Office of the Solicitor General for respondents. RESOLUTION SANCHEZ, J.: Pressed upon us in this, an original petition for certiorari and prohibition, is the problem of when prescription of penalty should start to run. The controlling facts are: Convicted of slander by the City Court of Quezon City petitioner appealed. Found guilty once again by the Court of First Instance, 1 she was sentenced to 20 days of arresto menor, to indemnify the offended party, Pilar B. Julio, in the sum of P100.00, with the corresponding subsidiary imprisonment, and to pay the costs. The Court of Appeals affirmed. 2 We declined to review on certiorari.3 Back to the Court of First Instance of Quezon City, said court, on January 11, 1965, directed that execution of the sentence be set for January 27, 1965. On petitioner's motion, execution was deferred to February 12, 1965, at 8:30 a.m. At the appointed day and hour, petitioner failed to show up. This prompted the respondent judge, on February 15, 1965, to issue a warrant for her arrest, and on March 23, 1965 an alias warrant of arrest. Petitioner was never arrested.1äwphï1.ñët Then, on December 10, 1966, petitioner, by counsel, moved to quash the warrants of arrest of February 15, 1965 and March 23, 1965. Petitioner's ground: Penalty has prescribed. On December 19, 1966, the respondent judge ruled that "the penalty imposed upon the accused has to be served", rejected the plea of prescription of penalty and, instead, directed the issuance of another alias warrant of arrest. Hence, the present petition. Arresto menor and a fine of P100.00 constitute a light penalty.4 By Article 92 of the Revised Penal Code, light penalties "imposed by final sentence" prescribe in one year. The period of prescription of penalties — so the

succeeding Article 93 provides — "shall commence to run from the date when the culprit should evade the service of his sentence".5 What then is the concept of evasion of service of sentence Article 157 of the Revised Penal Code furnishes the ready answer. Says Article 157: ART. 157. Evasion of service of sentence. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment 6 by reason of final judgment. However, if such evasion or escape shall have taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs or floors, or by using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, the penalty shall be prision correccional in its maximum period. Elements of evasion of service of sentence are: (1) the offender is a convict by final judgment; (2) he "is servinghis sentence which consists in deprivation of liberty"; and (3) he evades service of sentence by escaping during the term of his sentence.7 This must be so. For, by the express terms of the statute, a convict evades "service of his sentence", by "escaping during the term of his imprisonment by reason of final judgment." That escape should take place while serving sentence, is emphasized by the provisions of the second sentence of Article 157 which provides for a higher penalty if such "evasion or escape shall have taken by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors or by using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, ... "8 Indeed, evasion of sentence is but another expression of the term "jail breaking".9 A dig into legal history confirms the views just expressed. The Penal Code of Spain of 1870 in its Article 134 — from whence Articles 92 and 93 of the present Review Penal Code originated — reads: Las penas impuestas por sentencia firme prescriben: Las de muerte y cadena perpetua, a los veinte años. xxx Las leves, al año.

xxx

xxx

El tiempo de esta prescripcion comenzara a correr desde el dia en que se notifique personalmente al reo la sentencia firme, o desde el quebrantamiento de la condena si hubiera esta comenzado a cumplirse. x x x Note that in the present Article 93 the words "desde el dia en que se notifique personalmente al reo la sentencia firme", written in the old code, were deleted. The omission is significant. What remains reproduced in Article 93 of the Revised Penal Code is solely "quebrantamiento de la condena". And, "quebrantamiento" or evasion meansescape.10 Reason dictates that one can escape only after he has started service of sentence. Even under the old law, Viada emphasizes, where the penalty consists of imprisonment, prescription shall only begin to run when he escapes from confinement. Says Viada: El tiempo de la prescripcion empieza a contarse desde el dia en que ha tenido lugar la notificacion personal de la sentencia firme al reo: el Codigo de 1850 no expresaba que la notificacion hubiese de ser personal, pues en su art. 126 se consigna que el termino de la prescripcion se cuenta desde que se notifique la sentencia, causa de la ejecutoria en que se imponga la pena respectiva. Luego ausente el reo ya no podra prescribir hoy la pena, pues que la notificacion personal no puede ser suplida por la notificacion hecha en estrados. Dada la imprescindible necesidad del requisito de la notificacion personal, es obvio que en las penas que consisten en privacion de libertad solo porda existir la prescripcion quebrantando el reo la condena pues que si no se hallare ya preso preventivamente, debera siempre procederse a su encerramiento en el acto de serle notifirada personalmente la sentencia. 11 We, therefore, rule that for prescription of penalty of imprisonment imposed by final sentence to commence to run, the culprit should escape during the term of such imprisonment. Adverting to the facts, we have here the case of a convict who — sentenced to imprisonment by final judgment — was thereafter never placed in confinement. Prescription of penalty, then, does not run in her favor. For the reasons given, the Court resolved to dismiss the petition for certiorari and prohibition. No costs. So ordered.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 76872

July 23, 1987

WILFREDO TORRES Y SUMULONG, petitioner, vs. HON. NEPTALI A. GONZALES, THE CHAIRMAN, BOARD OF PARDONS AND PAROLE, and THE DIRECTOR, BUREAU OF PRISONS, respondents.

DECISION FELICIANO, J.: This is an original petition for habeas corpus filed on behalf of petitioner Wilfredo S. Torres, presently confined at the National Penitentiary in Muntinlupa. We issued the writ and during the hearing and from the return filed by the respondents through the Solicitor General, and other pleadings in this case, the following facts emerged: 1. Sometime before 1979 (no more specific date appears in the records before this Court), petitioner was convicted by the Court of First Instance of Manila of the crime of estafa (two counts) and was sentenced to an aggregate prison term of from eleven (11) years, ten (10) months and twenty-two (22) days to thirty-eight (38) years, nine (9) months and one (1) day, and to pay an indemnity of P127,728.75 (Criminal Cases Nos. 68810, 91041 and F-138107). These convictions were affirmed by the Court of Appeals (CA-G.R. Nos. 14773-CR and 17694-CR). The maximum sentence would expire on 2 November 2000.1

2. On 18 April 1979, a conditional pardon was granted to the petitioner by the President of the Philippines on condition that petitioner would “not again violate any of the penal laws of the Philippines. Should this condition be violated, he will be proceeded against in the manner prescribed by law.”2 Petitioner accepted the conditional pardon and was consequently released from confinement. 3. On 21 May 1986, the Board of Pardons and Parole (the “Board”) resolved to recommend to the President the cancellation of the conditional pardon granted to the petitioner. In making its recommendation to the President, the Board relied upon the decisions of this Court in Tesoro vs. Director of Prisons (68 Phil. 154 [1939]) and Espuelas vs. Provincial Warden of Bohol (108 Phil. 356 [1960]). The evidence before the Board showed that on 22 March 1982 and 24 June 1982, petitioner had been charged with twenty counts of estafa in Criminal Cases Nos. Q-19672 and Q-20756, which cases were then (on 21 May 1986) pending trial before the Regional Trial Court of Rizal (Quezon City). The record before the Board also showed that on 26 June 1985, petitioner had been convicted by the Regional Trial Court of Rizal (Quezon City) of the crime of sedition in Criminal Case No. Q22926; this conviction was then pending appeal before the Intermediate Appellate Court. The Board also had before it a letter report dated 14 January 1986 from the National Bureau of Investigation (“NBI”), addressed to the Board, on the petitioner. Per this letter, the records of the NBI showed that a long list of charges had been brought against the petitioner during the last twenty years for a wide assortment of crimes including estafa, other forms of swindling, grave threats, grave coercion, illegal possession of firearms, ammunition and explosives, malicious mischief, violation of Batas Pambansa Blg. 22, and violation of Presidential Decree No. 772 (interfering with police functions). Some of these charges were Identified in the NBI report as having been dismissed. The NBI report did not purport to be a status report on each of the charges there listed and identified. 4. On 4 June 1986, the respondent Minister of Justice wrote to the President of the Philippines informing her of the Resolution of the Board recommending cancellation of the conditional pardon previously granted to petitioner. 5. On 8 September 1986, the President cancelled the conditional pardon of the petitioner. 6. On 10 October 1986, the respondent Minister of Justice issued “by authority of the President” an Order of Arrest and Recommitment against

petitioner. The petitioner was accordingly arrested and confined in Muntinlupa to serve the unexpired portion of his sentence. Petitioner now impugns the validity of the Order of Arrest and Recommitment. He claims that he did not violate his conditional pardon since he has not been convicted by final judgment of the twenty (20) counts of estafa charged in Criminal Cases Nos. Q-19672 and Q-20756 nor of the crime of sedition in Criminal Case No. Q-22926. 3 Petitioner also contends that he was not given an opportunity to be heard before he was arrested and recommitted to prison, and accordingly claims he has been deprived of his rights under the due process clause of the Constitution. The issue that confronts us therefore is whether or not conviction of a crime by final judgment of a court is necessary before the petitioner can be validly rearrested and recommitted for violation of the terms of his conditional pardon and accordingly to serve the balance of his original sentence. This issue is not novel. It has been raised before this Court three times in the past. This Court was first faced with this issue in Tesoro Director of Prison.4 Tesoro, who had been convicted of the crime of falsification of public documents, was granted a parole by the then Governor-General. One of the conditions of the parole required the parolee “not [to] commit any other crime and [to] conduct himself in an orderly manner.” 5 Two years after the grant of parole, Tesoro was charged before the Justice of the Peace Court of San Juan, Rizal, with the crime of adultery said to have been committed with the wife of Tesoro’s brother-in-law. The fiscal filed with the Court of First Instance the corresponding information which, however, was dismissed for non-appearance of the complainant. The complainant then went before the Board of Indeterminate Sentence and charged Tesoro with violation of the conditions of his parole. After investigation by the parole officer, and on the basis of his report, the Board recommended to the President of the Philippines the arrest and recommitment of the petitioner. Tesoro contended, among other things, that a “judicial pronouncement to the effect that he has committed a crime” is necessary before he could properly be adjudged as having violated his conditional parole. Addressing this point, this Court, speaking through then Mr. Justice Moran, held that the determination of whether the conditions of Tesoro’s parole had been breached rested exclusively in the sound judgment of the Governor-General and that such determination would not be reviewed by the courts. As Tesoro had consented to place his liberty on parole upon the judgment of the power that had granted it, we held that “he [could not] invoke the aid of the courts, however erroneous the findings may be upon

which his recommitment was ordered.” 6 Thus, this Court held that by accepting the terms under which the parole had been granted, Tesoro had in effect agreed that the Governor-General’s determination (rather than that of the regular courts of law) that he had breached one of the conditions of his parole by committing adultery while he was conditionally at liberty, was binding and conclusive upon him. In reaching this conclusion, this Court relied upon Section 64 (i) of the Revised Administrative Code which empowered the Governor-General to grant to convicted prisoners reprieves or pardons, either plenary or partial, conditional or unconditional; to suspend sentences without parole, remit fines, and order the discharge of any convicted person upon parole, subject to such conditions as he may impose; and to authorize the arrest and recommitment of any such person who, in his judgment, shall fail to comply with the condition or conditions, of his pardon, parole or suspension of sentence. (Emphasis supplied) In Sales vs. Director of Prisons,7 the petitioner had been convicted of the crime of frustrated murder. After serving a little more than two years of his sentence, he was given a conditional pardon by the President of the Philippines, “the condition being that he shall not again violate any of the penal laws of the Philippines and that, should this condition be violated, he shall be proceeded against in the manner prescribed by law.” 8 Eight years after the grant of his conditional pardon, Sales was convicted of estafa and sentenced to three months and eleven days of arresto mayor. He was thereupon recommitted to prison to serve the unexpired portion of his original sentence. Sales raised before this Court two principal contentions. Firstly, he argued that Section 64 (i) of the Revised Administrative Code had been repealed by Article 159 of the Revised Penal Code. He contended, secondly, that Section 64 (i) was in any case repugnant to the due process clause of the Constitution (Article III [1], 1935 Constitution). This Court, through Mr. Justice Ozaeta speaking for the majority, rejected both contentions of Sales. Sales held, firstly, that Article 159 of the Revised Penal Code did not repeal Section 64 (i) Revised Administrative Code. It was pointed out that Act No. 4103, the Indeterminate Sentence Law, which was enacted subsequent to the Revised Penal Code, expressly preserved the authority conferred upon the President by Section 64. The Court also held that Article 159 and Section 64 (i) could stand together and that the proceeding under one provision did not necessarily preclude action under the other. Sales held, secondly, that Section 64 (i) was not repugnant to the constitutional guarantee of due process. This Court in effect held that since the petitioner was a convict “who had already been seized in a constitutional was been

confronted by his accusers and the witnesses against him-, been convicted of crime and been sentenced to punishment therefor,” he was not constitutionally entitled to another judicial determination of whether he had breached the condition of his parole by committing a subsequent offense. Thus: [a] statute [like Section 64 (i)] supervenes to avoid the necessity for any action by the courts in the premises. The executive clemency under it is extended upon the conditions named in it, and he accepts it upon those conditions. One of these is that the governor may withdraw his grace in a certain contingency, and another is that the governor shall himself determine when that contingency has arisen. It is as if the convict, with full competency to bind himself in the premises, had expressly contracted and agreed, that, whenever the governor should conclude that he had violated the conditions of his parole, an executive order for his arrest and remandment to prison should at once issue, and be conclusive upon him. 9 In Espuelas vs. Provincial Warden of Bohol,10 the petitioner had been convicted of the crime of inciting to sedition. While serving his sentence, he was granted by the President a conditional pardon “on condition that he shall not again violate any of the penal laws of the Philippines.” 11 Espuelas accepted the conditional pardon and was released from confinement. Sometime thereafter, he was convicted by the Justice of the Peace Court in Tagbilaran, Bohol, of the crime of usurpation of authority. He appealed to the Court of First Instance. Upon motion of the provincial fiscal, the Court of First Instance dismissed the case provisionally, an important prosecution witness not having been available on the day set for trial. A few months later, upon recommendation of the Board of Pardons and Parole, the President ordered his recommitment to prison to serve the unexpired period of his original sentence. The Court in Espuelas reaffirmed the continuing force and effect of Section 64 (i) of the Revised Administrative Code. This Court, quoting Tesoro and Sales, ruled that:

Due process is not necessarily judicial The appellee had had his day in court and been afforded the opportunity to defend himself during his trial for the crime of inciting to sedition, with which he was charged, that brought about or resulted in his conviction, sentence and confinement in the penitentiary. When he was conditionally pardoned it was a generous exercise by the Chief Executive of his constitutional prerogative.The acceptance thereof by the convict or prisoner carrie[d] with it the authority or power of the Executive to determine whether a condition or conditions of the pardon has or have been violated. To no other department of the Government [has] such power been intrusted. 12 The status of our case law on the matter under consideration may be summed up in the following propositions: 1. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. 2. The determination of the occurrence of a breach of a condition of a pardon, and the proper consequences of such breach, may be either a purely executive act, not subject to judicial scrutiny under Section 64 (i) of the Revised Administrative Code; or it may be a judicial act consisting of trial for and conviction of violation of a conditional pardon under Article 159 of the Revised Penal Code. Where the President opts to proceed under Section 64 (i) of the Revised Administrative Code, no judicial pronouncement of guilt of a subsequent crime is necessary, much less conviction therefor by final judgment of a court, in order that a convict may be recommended for the violation of his conditional pardon. 3. Because due process is not semper et unique judicial process, and because the conditionally pardoned convict had already been accorded judicial due process in his trial and conviction for the offense for which he was conditionally pardoned, Section 64 (i) of the Revised Administrative Code is not afflicted with a constitutional vice. We do not believe we should depart from the clear and well understood rules and doctrine on this matter. It may be emphasized that what is involved in the instant case is not the prosecution of the parolee for a subsequent offense in the regular course of administration of the criminal law. What is involved is rather the ascertainment of whether the convict has breached his undertaking that he would “not again violate any of the penal laws of the Philippines” for

purposes of reimposition upon him of the remitted portion of his original sentence. The consequences that we here deal with are the consequences of an ascertained breach of the conditions of a pardon. A convict granted conditional pardon, like the petitioner herein, who is recommitted must of course be convicted by final judgment of a court of the subsequent crime or crimes with which he was charged before the criminal penalty for such subsequent offense(s) can be imposed upon him. Again, since Article 159 of the Revised Penal Code defines a distinct, substantive, felony, the parolee or convict who is regarded as having violated the provisions thereof must be charged, prosecuted and convicted by final judgment before he can be made to suffer the penalty prescribed in Article 159. Succinctly put, in proceeding against a convict who has been conditionally pardoned and who is alleged to have breached the conditions of his pardon, the Executive Department has two options: (i) to proceed against him under Section 64 (i) of the Revised Administrative Code; or (ii) to proceed against him under Article 159 of the Revised Penal Code which imposes the penalty of prision correccional, minimum period, upon a convict who “having been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon.” Here, the President has chosen to proceed against the petitioner under Section 64 (i) of the Revised Administrative Code. That choice is an exercise of the President’s executive prerogative and is not subject to judicial scrutiny.

Vicente R. Acsay counsel de oficio for defendants-appellants.

ESCOLIN, J.:ñé+.£ªwph!1 Mandatory review of the death sentences imposed by the Circuit Court of Rizal upon Teofilo Dioso and Jacinto Abarca for the crime of murder. The crime was committed inside the New Bilibid Prison in Muntinglupa, Rizal where both accused were serving sentence, Abarca having been previously convicted by final judgment of the crime of homicide, and Dioso, of robbery. At the time of the incident, Dioso and Abarca were members of the "Batang Mindanao" gang, while the victims Angelito Reyno and Fernando Gomez, also prisoners at the New Bilibid Prisons, belonged to a group known as the "Happy Go Lucky" gang. These rival factions had been involved in intermittent, and sometimes bloody, clashes, the latest of which resulted in the death of one Balerio a member of the "Batang Mindanao" gang

G.R. Nos. L-38346-47 October 23, 1964

Suspecting that Reyno and Gomez had authored the slaying of their gangmate, the two accused set their Minds to avenge his death. They found the occasion to execute their nefarious design when they learned that Reyno and Gomez were sick and confined in the prison hospital. At 6:15 in the 'morning of September 12, 1972, Abarca, feigning illness, went to the hospital to seek admission as a patient. He was accompanied by his co-accused Dioso. Inside Ward 6 of the hospital they saw their intended victims: Reyno was taking breakfast with Gomez was lying down on a "tarima" [wooden bed] under a mosquito net. Dioso approached Reyno and spoke briefly to him, while Abarca headed towards the "tarima". Then, both accused suddenly drew out their improvised knives matalas Abarca raised the mosquito net over the "tarima" and stabbed Gomez, as Dioso, almost simultaneously, attacked Reyno with his knife. And after the latter had fallen, Dioso strode to the "tarima" to help his co-accused finish off Gomez.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEOFILO DIOSO and JACINTO ABARCA, defendants-appellants.

When the accused rushed out of Ward 6, they were met at the corridor by Prison Guard Enriquito Aguilar Both gave themselves up and handed their weapons to him.

WHEREFORE, this Petition is hereby DISMISSED. No pronouncement as to costs.SO ORDERED

Republic of the Philippines SUPREME COURT Manila EN BANC

The Solicitor General for plaintiff-appellee.

Dr. Ricardo E. Baryola medico-legal officer of the NBI, who performed the autopsy, found that both accused died of massive bleeding due to multiple stab wounds on the chest and abdomen. 1 The accused were immediately interrogated by prison investigator Buenaventura dela Cuesta; and they; readily executed their respective sworn statements, wherein they admitted responsibility for the death of the victims. 2 In his sworn statement, Teofilo Dioso narrated how he delivered the death blow on Reyno, thus: têñ.£îhqw⣠T Pagdating ninyo sa ward 6 ano ang inyong ginawa? S Tumuloy ho ako kay Reyno at tinamong ko kung saan si Intsik [Gomez] ngayon tinuro ni Reyno sa akin. Sabi ho iyong nakakulambo. Pagkatapos, sinabi ko naman kay Abarca ang lugar ni Intsik ngayon, pinuntahan naman niya. Pagtapat niya kay Intsik, sinipa ko si Reyno sabay bunot ng aking matalas at sinaksak ko sa kanya. Noong sa pag-aakala kong patay na, iniwan ko at tumulong ako kay Abarca sa pagsaksak kay Gomez. Noong tumihaya na si Gomez, sumigaw ako kay Abarca na labas na tayo. Tumakas ka palabas at noong nasa pasilyo kami ng hospital nasalubong namin iyong guardiya at doon namin sinurender ang mga matalas namin. Tapos karning makapag-surrender, dinala kami ng guardiya sa Control Gate tuloy dito. [Exhibit "D", p. 21] Jacinto Abarca on the other hand narrated his version of the killing as follows: têñ.£îhqw⣠T Pagkatapos ninyong mapagkasunduan na manaksak sa ward 6, ano ang inyong ginawa? S Ang sabi pa niya na bukas na tayo titira pagkatapos ng almosalan tapos naghiwalay na kami baka pa marinig ng iba. Kaninang umaga . pagkatapos naming kumain lumabas na ako sa ward 2 at nakita ko siya sa pintuan ng ward 4 na naghihintay sa akin. Ngayon, pumasok muna siya sa ward 4 at kumuha ng sigarilyo at pagkatapos tumuloy kami sa ward 6. Pagdating namin sa ward 6, siya ang umuna dahil sa hindi ko pa alam kung saan naka puwesto ang mga Happy Go [gang]. Pagkatapos lumapit siya doon sa nakaupo hindi ko alam kong kumakain o hindi at ako naman ay umupo sa isang tarima sa tabi ni intsik iyong tinira ko tapos bigla na lang siya bumunot ng matalas niya bago tinira iyong nakaupo sabay sabi na "tira na". Pagkatira niya, ako naman ay lumapit doon sa tarima ni intsik

[Gomez] bago ko biglang tinaas ang kulambo dahil nakahiga siya tapos tumakbo. Hinabol ko tapos paghabol ko, nadapa siya tapos sumuot sa silong ng tarima. Doon ko siya inabutan at sinaksak ko. Ngayon sa pagsaksak ko sa kanya, biglang dumating itong si Dioso at tumulong sa akin sa pagsaksak. Hindi nagtagal, sumigao si Dioso ng 'tama na' bago kami tumakbo palabas ng ward 6. Noong nasa pasilyo kami ng hospital, nasalubong namin iyong guardiya at doon namin sinurender ang mga matalas namin. Pagkatapos naming ma surrender ang mga matalas nang dinala kami ng guardiya sa labas. [Exhibit "C ", p. 2]. Dioso revealed the motive for the killing as follows: têñ.£îhqw⣠T Bakit naman ninyo ni Abarca sinaksak sina Reyno at Gomez sa ward 6? S Dahil po doon sa nangyari kay Balerio. Si Balerio po ay sinaksak ng mga "Happy Go" at iyong panaksak namin kanina ay iyon ang ganti naming mga BM sa mga "Happy Go". [Exhibit "D", p. 1] Of similar tenor is the following statement of Abarca: têñ.£îhqw⣠T lbig mo bang sabihin, iyong mga sinaksak ninyo sa hospital kanina ay iyon din ang pumatay sa sinasabi mong kakusa ninyo na si Balerio? S Hindi ho pero katatak nila iyong pumatay kay Balerio. Pareho silang miembro ng "Happy Go Lucky" gang. Ngayon ang pagka panaksak namin kanina sa hospital noong dalawa na miembro ng "Happy Go" ay ganti naming mga BM [Batang Mindanao] sa pagkapatay nila kay Balerio. [Exhibit "C", p. 1]. When arraigned for the crime of murder, both accused voluntarily entered the plea of guilty. Thereafter the trial court required the presentation of evidence to determine the degree of their culpability. At the hearing, they acknowledged the voluntary execution of their respective confessions. The trial court correctly found that the crime was perpetrated with alevosia. As revealed by the accused themselves, they inflicted the fatal blows while Gomez was lying down under a mosquito net, and Reyno was taking his breakfast. Clearly, neither of the victims was in a position to defend himself from the sudden and unexpected assault.

It is thus noted that in their briefs, no attempt was made to impugn the lower court's conclusion as to their guilt. Instead, they seek attenuation of the death sentence imposed by the trial court by invoking the circumstances of voluntary surrender and plea of guilty. We find no necessity to discuss at length the effects of such mitigating circumstances on the penalty imposed. Suffice it to say that the accused are quasirecidivist, having committed the crime charged while serving sentence for a prior offense. As such, the maximum penalty prescribed by law for the new felony [murder] is death, regardless of the presence or absence of mitigating or aggravating circumstance or the complete absence thereof. 3 But for lack of the requisite votes, the Court is constrained to commute the death sentence imposed on each of the accused to reclusion perpetua

ACCORDINGLY, accused Teofilo Dioso and Jacinto Abarca are hereby sentenced to reclusion perpetua and to indemnify the heirs of the deceased, jointly and severally, the sum of P30,000.00. Costs against appellants. SO ORDERED.1äwphï1.ñët