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[G.R. No. 125938. April 4, 2003]PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL JANSON and RICKY PINANTAO alias OGCO, appellants. On appeal is the decision[1] of the Regional Trial Court, Branch XVII, Kidapawan, Cotabato promulgated on September 15, 1995, declaring appellants guilty of the crime of robbery with rape, and sentencing each of them to the penalty of Reclusion Perpetua, and ordering them to pay P30,000.00 and P10,000.00 in favor of Marites Alcantara and Cesario Alcantara, respectively. The information filed on August 31, 1987 alleged: That on or about the 24th day of March 1986, at about 10:00 oclock in the evening at Barangay Mateo, Municipality of Kidapawan, Province of Cotabato, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused JOEL JANSON, RICKY PINANTAO alias OGCO in company with alias ABDUL, alias PUTO, JOHN DOE and PETER DOE, who are still at large and whose names are still unknown, constituting a band and armed with long and short firearms, conspiring, confederating and mutually helping one another, with intent to gain, with force and intimidation, did then and there willfully, unlawfully and feloniously take and carry away, at gun point, cash money in the amount of P1,400.00, three (3) pieces of wrist watches, one (1) can coffee beans and one (1) chicken and if converted into cash it amounted to P1,845.00 or a total amount of Three Thousand Two Hundred Fourty (sic) Five Pesos (P3,245.00), Philippine Currency, owned by Mr. & Mrs. CESARIO ALCANTARA; and on the same occasion, the above-named accused, with the use of force, violence and intimidation and armed with firearms, did then and there willfully, unlawfully and feloniously take turns in having carnal knowledge with one MARITESS ALCANTARA, a girl about 13 years old, daughter of Mr. & Mrs. CESARIO ALCANTARA, against her will and consent, to the damage and prejudice of the aforesaid persons in the aforesaid amount. All contrary to law with the aggravating circumstances of dwelling, nighttime and the use of unlicensed firearms. Kidapawan, Cotabato, August 31, 1987.[2] On December 9, 1987, both accused pleaded not guilty. [3] Trial then ensued. For the prosecution, the following witnesses were presented: Teresa Alcantara, Marites Alcantara, Dante Alcantara, Cesario Alcantara, Dr. Cesar Manuel, Atty. Jorge Zerrudo, and police officers Pedro Idpan, Jr. and Ortello Achas. TERESA ALCANTARA testified that on March 24, 1986 at about 10:00 in the evening, the accused with six (6) other companions asked for food. She asked them to come back the following day but they threatened to strafe and burn the house if they are not let in. The accused then entered the house and once inside, made all occupants lie down before covering them with a blanket. The accused demanded money from Teresa and she gave them P1,000. She was brought to the kitchen and someone guarded her. For a while, there was complete silence. Then she went inside the room of her daughter Marites, and saw her totally naked. Her daughter told her that she was raped. She gave an additional P1,000 to the accused who also got two (2) wristwatches worth P690.00, two (2) Seiko watches worth P443.00, a chicken worth approximately P20.00, and one can of coffee beans. The appellants were speaking among themselves in the Manobo dialect. Teresa identified appellants Janson and Pinantao as two of the men who robbed their house and raped her daughter that night. She testified that she knew appellants since they were their neighbors at Mateo. She also claimed that while Janson and Pinantao were masked during the incident, she recognized them through their body built, physical appearance, and their voices while speaking in Manobo. [4] MARITES[5] ALCANTARA testified that she was thirteen (13) years old at the time of the incident. She corroborated the testimony of her mother and added that after the group entered their house and hogtied her father, the appellants entered her room and turned off the lights inside. Someone poked a gun at her. Then Ricky Pinantao, who had an amputated right hand; Joel Janson, and Abdul Jona raped her. In open court she identified appellants Pinantao and Janson as two of her abusers, claiming that they were previously known to her. She claimed that she knew Ricky because he was their neighbor and that he often went to their house to buy bananas, while she knew Joel because he often went to their barangay to visit his relatives. She likewise claimed that while the appellants turned off the lights in their house, there was a full moon that night which gave her enough light to see her abusers. She immediately told her parents that she was raped, and she underwent medical examination the following day. [6] DANTE ALCANTARA testified that on the day of the robbery he was only nine (9) years old. He said he recognized appellants Janson and Pinantao because they were their neighbors. On cross-examination, he admitted that the four robbers were masked, but the witness insisted that he was able to recognize Pinantao with his cut wrist and mustache, and also Janson because of his built.[7] CESARIO ALCANTARA testified that on March 24, 1986, their house was robbed and his daughter was raped. He admitted that during the incident, he was not able to identify the perpetrators since he was hogtied face downwards, and he was covered with a blanket.[8] The prosecution also presented DR. CESAR MANUEL. He testified that the physical examination he conducted on Marites Alcantara a day after the incident revealed that there were lacerations between the labia majora, labia minora, and the prepuce caused by a sharp instrument. There was also the presence of seminal fluid in the vagina of the victim indicating that there was actual sexual contact.[9] ATTY. JORGE ZERRUDO testified that he only assisted appellant Janson in waiving his right to counsel, and that the sworn statement was already prepared when he signed it. Nevertheless, he asked appellant Janson if the contents of the statement were true, and whether he wished to be assisted by counsel. [10]

P/SGT. PEDRO IDPAN, JR. testified that he was a member of the Integrated National Police (INP), Kidapawan, Cotabato, assigned in the investigation of the crime of robbery with rape involving appellant Joel Janson. He identified Jansons sworn statement saying it was signed by him without being forced. He admitted that during the investigation, there was no lawyer present and that Atty. Zerrudo signed the affidavit only after the investigation was conducted. He claimed, however, that prior to the custodial investigation, he informed Janson of his constitutional rights and that despite being a Manobo, Janson fully understood Cebuano, [11] which was the language used during the custodial investigation. Finally, P/SGT. ORTELLO ACHAS testified that he was at the police station when Teresa Alcantara appeared on June 24, 1986, and requested that she be accompanied to the jail to identify the person who was earlier apprehended and detained. She identified the person as appellant Joel Janson. On cross-examination, P/Sgt. Achas admitted that he was not the one who conducted the investigation on the person of Joel Janson and that he could not remember whether appellant Janson who was then sixteen (16) years old and a Manobo was assisted by a lawyer. Neither could he remember whether a mental or physical examination was made upon Janson. [12] For the defense, the following witnesses were presented: Datu Amado Pinantao, Atty. Francis Palmones, Jr., and the two appellants: Joel Janson and Ricky Pinantao. DATU AMADO PINANTAO testified that he is an uncle of Ricky Pinantao, and that they belong to a cultural minority group, the Manobos. He admitted that they lived near the house of Cesario Alcantara. He said that on March 24, 1986, appellant Pinantao was in their house and that it was impossible for him to be elsewhere because earlier, in 1985, Pinantao was hacked by one Bernardo Agio resulting in the amputation of Pinantaos hand. He averred that Pinantao could not go out of their house because at the time of the incident, the wound he sustained was not yet completely healed.[13] ATTY. FRANCIS PALMONES, JR., testified that he notarized the sworn statement [14] of the appellant Janson on April 3, 1987, marked as Exh. 4 and that Janson affirmed and understood the contents of said affidavit because it was translated to him in the Visayan vernacular.[15] Appellant JOEL JANSON, for his own defense, declared that he was assisted by a lawyer when he was investigated and made to sign a sworn statement before the police on June 26, 1986. But he denied the accusation against him and claimed that he was not assisted by counsel during the custodial investigation. He claimed that he did not know how to read or write, and that he was made to execute a sworn statement before a certain policeman named Ulep. Only after the investigation did Atty. Zerrudo sign the document. On cross-examination, he said that he was put in jail for another crime, robbery.[16] Appellant RICKY PINANTAO also denied the accusation against him, saying that he did not know Marites and Cesario Alcantara. He claimed that he was arrested in March 1987 because he was implicated by appellant Janson as one of the perpetrators of the crime, per instruction of one Cristina Agio. [17] On September 15, 1995, the Regional Trial Court rendered judgment thus: WHEREFORE, prescinding from all of the foregoing considerations, the Court hereby pronounces the accused Ricky Pinantao alias Ogco and Joel Janson guilty of the crime of Robbery with Rape beyond reasonable doubt and accordingly, sentences Ricky Pinantao and Joel Janson each to undergo a prison term of Reclusion Perpetua and to indemnify Marites Alcantara the sum of P30,000.00; to indemnify Cesario Alcantara the sum of P10,000.00. No award of other damages in the absence of proof thereof. SO ORDERED.[18] Both appellants filed their notices of appeal and submitted separate appellants briefs. Appellant Ricky Pinantao averred that: I THE TRIAL COURT ERRED IN ADMITTING THE ALLEGED EXTRA-JUDICIAL CONFESSION OF APPELLANT JOEL JANSON, SAID EVIDENCE BEING INADMISSIBLE BECAUSE IT WAS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED AND SHOULD NOT HAVE TAKEN AGAINST HIS CO-ACCUSED RICKY PINANTAO, UNDER THE INTER ALIOS ACTA RULE AS AGAINST HIS CO-ACCUSED RICKY PINANTAO EITHER FOR PROBABLE CAUSE AND THE RESULTANT CONVICTION OF RICKY PINANTAO; II THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE PROSECUTION WITNESSES OF THE ALCANTARA FAMILY WHICH WERE SHOT THROUGH WITH MATERIAL CONTRADICTIONS, INCONSISTENCIES AND UNNATURAL TESTIMONIES; and III THE TRIAL COURT ERRED IN NOT FINDING THAT THE PROSECUTION MISERABLY FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT, AND THAT IN FACT THERE WAS A REASONABLE DOUBT IN THE IDENTITIES AND GUILT OF BOTH ACCUSED.[19] Appellant Joel Janson, for his part, averred that: I

THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT JOEL JANSON WAS POSITIVELY IDENTIFIED BY THE PROSECUTION WITNESSES; and II THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT JOEL JANSON GUILTY OF THE CRIME OF ROBBERY WITH RAPE DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. [20] Simply put, the issues in this case are as follows: (1) Was the guilt of appellants Janson and Pinantao proved beyond reasonable doubt? (2) Is the extrajudicial confession of Janson admissible as evidence for the prosecution? and (3) May said confession be used against co-accused Pinantao? We find the appeal impressed with merit. Appellants should be acquitted. Generally, the findings of the trial court concerning credibility of witnesses are accorded great weight and respect because it had the opportunity to observe closely in the first instance the demeanor of the witnesses presented before it. [21] However, when the trial court overlooked or misunderstood significant contrarieties in the testimony of witnesses which if considered would materially affect the result of the conviction, such findings will not bind this Court. [22] Such is the case at hand. Consistent with the testimonies of Teresa, Marites, Cesario, and Dante Alcantara, we can gather that what transpired that fateful night is as follows: In the evening of March 24, 1986, six (6) men came to the house of Cesario Alcantara threatening to strafe and burn it should they not be let in. Once inside, the masked group of men turned off the lights, hogtied Cesario, pushed him facedown and covered him with blankets. They asked for money and Teresa gave them P400.[23] Teresa was then led to the kitchen. During this time, her daughter Marites was raped [24] by four men. Then Marites was led to the kitchen where the culprits threatened to abduct her if her mother would not give them money. Teresa then gave them an additional P1,000 while the group took three wristwatches, one can of coffee, and one chicken. Then they left the house, all the while speaking in the Manobo dialect.[25] While the testimonies of the witnesses up to this point are credible and undisputed, it is unfortunate that the certainty ends here. Marites testified in open court that she was raped by Ricky alias Ogco Pinantao, Joel Janson, and Abdul Jona. She said that she came to know Ricky Pinantao because he is a neighbor and that he often goes to their house to buy bananas. She also said that she came to know Joel Janson because he is always going to Mateo since he has a relative there.[27]

Upon cross-examination, however, Marites admitted that she was not certain of the identity of her perpetrators at the time of the incident or immediately thereafter. According to her, it was only after Joel Janson was apprehended for another crime, and after he confessed to the police, that she was able to confirm her suspicion. When asked in open court, she was not able to satisfactorily explain the discrepancy in her initial sworn statement before the police and her testimony later. Pertinent portions of her testimony in court are instructive: Q: Was this Ricky Pinantao armed when he entered your room? A: No sir, he wasnt. Q: Where (sic) you afraid of him? A: No, sir. Q: Knowing that, according to you, you know him, did you not question him, Ricky, why are you doing this to me? A: I did not because I was only suspecting.[28] xxx Q: Is it not Marites, to refresh your memory, is it not that when a sworn statement was taken from your (sic), you stated in your affidavit that you did not recognize anybody? A: That was what I stated in my statement.[29] xxx Q: Miss Marites, in this sworn statement of yours, which was already marked as Exhibit E for the prosecution and Exhibit 1 for the defense, there is a question here: Can you recognized (sic) any of the four men or any of the six men that robbed and raped you? [you answered, I do not know anyone sir. Now] in your testimony here, you said that you know the two accused, how will you reconcile this one? A: It is like this, what I am telling now in Court is the one true, during that time, when the statement was taken on me (sic), I have already suspect in my mind and I could not tell their names but there were some evidence that dovetailed in my mind, like, the cut wrist of the one perpetrator, Ricky Pinantao and the mustache. And these are the things that I recall. Q: Now, how come that you did not tell the police of the perpetrators during that time of investigation?

A: Sir, it is very hard to name names during that time when a statement was taken on me. But when this Joel Janson was first apprehended, it was confirmed by his statement to the policeman. (sic)[30] xxx Q: So, when Joel Janson was apprehended, that was the time you confirmed that he was the perpetrator? A: xxx Yes, sir. xxx Q: Therefore, you failed to recognize Joel Janson during said time of the incident? A: I knew him through his body built. xxx Q: So, you merely assumed that Joel Janson is one of those persons who robbed you, because of the aforesaid statement, that his alleged statement in the police? A: Yes, sir. xxx Q: According to you, you have confirmed your suspicion of this Joel Janson after he was apprehended? A: Yes, sir. Q: In the same manner you confirmed your suspicion of Ricky Pinantao after he was apprehended? A: He himself revealed. Aside from that I already suspected because of his cut wrist and his mustache. [31] (emphasis ours) While courts generally brush aside inconsequential contradictions between declarations of the affiant in her sworn statements and those in court, the rule is otherwise where the discrepancies touch on substantial and irreconcilable facts such as those omissions in the affidavit concerning important details which the affiant would not have failed to mention and which omission could well affect the credibility of the affiant. [32] If indeed, the victim recognized one of her assailants as Ricky Pinantao because of his amputated hand, she should have mentioned such glaring trait the first time she gave her statement to the investigating officers. But she never mentioned anything. On the contrary, she admitted that she did not recognize any of her assailants. She also admitted that it was only after Joel Janson was apprehended and confessed to the crime, implicating Ricky Pinantao, that she confirmed her suspicion. The testimony of Teresa Alcantara is also riddled with uncertainties: Q: How many day had lapsed (sic) before you reported the incident to the police? A: Three months after the incident. xxx Q: Will you please explain why you reported the incident after three months? A: It was only upon hearing through radio DXND the name of this person Joel Janson who was reported to have robbed the corn of a certain Atty. Jalipa, that I reported to the police . Q: That was the only reason why you reported to the police after three months already? A: It is like this: After hearing that, I went to the police right then and there. I saw this Joel Janson who was the person among those who raped my daughter and entered our house. Q: If you knew already that Joel Janson was among those persons who robbed you, why did you not report to the police immediately? A: The following morning, I immediately reported, sir. Q: And you gave sworn statement before the police on the following morning? A: Not yet, sir. Q: Of course, this Joel Janson was unmasked when those six men came to your house? A: This Joel Janson and Ricky Pinantao were the one (sic) wearing mask. Q: In other words, during the incident you failed to recognize outright who were those persons masked? A: I identified them through their body built and voice because they were speaking Manobo. Q: But you identified them because of their voice? A: Voice and bodybuilt. Q: But of course, you did not actually see the face of Joel Janson? A: How can I see when he is masked.x x x Q: You only mentioned his (Joel Jansons) name (to the police) after you heard his name over the DXND?

A: Yes...[33] (emphasis ours) What stands out in the testimonies of the victims is that they were uncertain of the identities of the masked men who committed the robbery and rape that night and anchored their suspicion on the alleged confession of Joel Janson. This confession, however, is itself inadmissible for failing to meet the constitutional requirements for admissibility. The lawyer who allegedly assisted Joel Janson in the waiver of his right to counsel, Atty. Zerrudo, testified: Q: In other words, this sworn statement marked Exhibit B was already typewritten and prepared when it was brought to you by the police? A: Yes, sir, that is correct.[34] xxx Q: But before he was brought to your office allegedly to assist him in his waiving of his right, he was already subjected to investigation as this sworn statement was already prepared? A: That is true, but not signed. Q: Of course he was not assisted because he was already subjected to police investigation in his waiving of his constitutional rights? A: May be, I am not sure about that. That was may be, that was already prepared when they came to my office but only unsigned. Q: What was prepared, the whole investigation or this entire part or that part of waiving his rights? A: As far as I can remember, it was already prepared, Your Honor .[35]x x x Q: Atty. Zerrudo, we are clear to the fact that this document was already prepared before when it was brought to your office? A: Yes, sir.[36] (emphasis ours) The investigating police officer, P/Sgt. Pedro Idpan, also admitted in open court that the sworn statement of appellant Joel Janson was taken without the presence of counsel and that this statement together with the waiver of his right to counsel, was already prepared when it was presented to Atty. Zerrudo for signing. As shown by the transcript: Q: But the accused during the investigation was not assisted by counsel, is that right? A: At the time when I conducted the investigation, the counsel is not yet present. Q: In other words, during the conduct of the investigation there was no counsel being present assisting the accused Joel Janson? A: None, sir. Q: So in all the sworn statement of the accused Joel Janson made earlier was made without the assistance of counsel? (sic) A: When I prepared the investigation I advised him to get a counsel of his own choice but the counsel was not yet present. Q: He was not assisted by counsel during the conduct of the investigation? A: Yes, sir. Court : What do you mean, Sergeant, Atty. Zerrudo was not yet present? A: When I conducted the investigation, Atty. Zerrudo was not present. x x x Court: He signed it after the investigation? A: The prepared testimony. Court: After the investigation? A: After the investigation.[37] (emphasis ours) Clearly, the alleged extrajudicial confession of appellant Joel Janson cannot be admitted in evidence. The manner by which it was obtained violated accuseds constitutional right to counsel. It is well-settled that the Constitution abhors an uncounselled confession or admission and whatever information is derived therefrom shall be regarded as inadmissible in evidence against the confessant. [38] As provided for in Article III, Section 12 of the 1987 Constitution, (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.x x x

(3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against him. In People v. Javar,[39] this Court was clear in pronouncing that any statement obtained in violation of the Constitution, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Even if the confession contains a grain of truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. [40] In People v. Gomez,[41] citing People v. Rodrigueza,[42] this Court held that Section 12(1), Article III of the Constitution requires the assistance of counsel to a person under custody even when he waives the right to counsel. Under the Constitution and existing law as well as jurisprudence, a confession to be admissible must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. [43] The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting confession by coercion no matter how slight, as would lead the accused to admit something false. What is sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. These constitutional guarantees have been made available to protect him from the inherently coercive psychological, if not physical, atmosphere of such investigation.[44] While the Constitution sanctions the waiver of the right to counsel, it must, however, be voluntary, knowing, and intelligent, made in the presence and with the assistance of counsel, [45] and it must be in writing. Indeed, any waiver of the right to counsel without the assistance of counsel has no evidentiary value. [46] In this case, it cannot be said that the waiver of the right to counsel was made knowingly and intelligently. Appellant Joel Janson was illiterate, and a minor of sixteen (16) years at the time of the offense. As held in the case of People v. Bonola,[47] where the accused was unschooled and only nineteen (19) years old when arrested, it is difficult to believe that considering the circumstances, the accused made an intelligent waiver of his right to counsel. In such instances, the need for counsel is more pronounced. It is also important to mention that the investigating officers already had a prepared statement when they went to the lawyer who is supposed to assist appellant Janson in waiving his right to counsel. This is not what is contemplated by law. In People v. Quidato, Jr.,[48] where the police officers already prepared the affidavits of the accused when they were brought to the CLAO (now PAO) lawyer, and the latter explained the contents of the affidavits in Visayan to the accused who affirmed the veracity and voluntary execution of the same, the court held that the affidavits are inadmissible in evidence even if they were voluntarily given. As also ruled in People v. Compil,[49] the belated arrival of the CLAO lawyer the following day, even if prior to the actual signing of the uncounseled confession, does not cure the defect of lack of counsel for the investigators were already able to extract incriminatory statements from the accused therein. Thus, in People v. De Jesus,[50] we said that admissions obtained during custodial interrogations without the benefit of counsel, although later reduced to writing and signed in the presence of counsel, are still flawed under the Constitution. As pointed out in People v. Deniega,[51] if the lawyers role is reduced to being that of a mere witness to the signing of a priorly prepared document albeit indicating therein compliance with the accuseds constitutional rights, the constitutional standard is not met. Finally, the invalid extrajudicial confession of Joel Janson cannot be used against Ricky Pinantao. An extrajudicial confession by an accused implicating another may not be utilized unless repeated in open court or when there is an opportunity for the co-accused to cross-examine the confessant on his extrajudicial statements. It is considered hearsay as against said co-accused under the res inter alios acta rule, which ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.[52] For all the foregoing considerations, the judgment of the Regional Trial Court finding Janson and Pinantao guilty of the crime of robbery with rape fails to persuade us that appellants have been adequately identified as the perpetrators of the heinous offense. In our view, to affirm that judgment of conviction on the basis of contradictory testimony of prosecution witnesses and the flawed extrajudicial confession of appellant Joel Janson is to sanction a possible miscarriage of justice. What befell the Alcantara family, particularly to Marites, is abhorrent and should be condemned. But after due reflection and deliberation, we still find difficulty in sustaining the trial courts conclusion regarding appellants guilt because of inconclusive identification. Doubts persist in our mind as to who are the real malefactors. Yes, a complex offense has been perpetrated, but who are the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts! But we have only uncertain testimonies to rely on. It is only when the conscience is satisfied that the persons on trial are the ones who committed the offense that the judgment should be for conviction. Only when there is proof beyond reasonable doubt can we be certain that, after trial, only those responsible should be made answerable. [53] The evidence for the prosecution must stand or fall on its own merit and cannot be allowed to draw strength from the weakness of the evidence for the defense.[54] In this exacting standard, the prosecution failed. It follows that the judgment of the lower court convicting appellants ought to be set aside for failure to meet the quantum of evidence constitutionally required. WHEREFORE, the decision of the Regional Trial Court of Kidapawan, Cotabato, Branch XVII, in Criminal Case No. 2016 is hereby REVERSED and SET ASIDE. Appellants Joel Janson and Ricky Pinantao are ACQUITTED, on grounds of reasonable doubt, and ordered released from prison unless they are being held for some other lawful cause. The Director of Prisons is DIRECTED to implement this Decision and to report to this Court immediately the action taken hereon within five (5) days from receipt hereof.SO ORDERED.


PER CURIAM: In many ways - three times to be exact-the prosecution in the instant case, through the testimony of state witness Rogelio Lascua, shatters the long-time aphorism that blood is thicker than water. On appeal via automatic review is the decision [1] of the Regional Trial Court of Cebu City, Branch 18, in Criminal Case No. CBU-35462, dated 30 June 1995, as modified by its order [2] dated 20 July 1995, finding accused-appellants Pedro Bariquit, Cristituto Bariquit, and Emegdio Lascua guilty of the special complex crime of Robbery with Homicide and sentencing them to suffer the penalty of death. In its order dated 20 July 1995, modifying its decision dated 30 June 1995, the trial court, while likewise finding coaccused Baselino Repe guilty of the crime charged, Nonetheless appreciated the privileged mitigating circumstance of minority on Repes favor, sentenced him to a reduced penalty of imprisonment of from six (6) years and one(1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, and redeemed him from the clutches of the supreme penalty of death. At the time of the commission of the crime, accused Repe was seventeen years old. The antecedent facts and proceedings in the instant case unfold. On 28 February 1994, Assistant Provincial Prosecutor Adolfo Alcoseba filed a motion to drop accused Rogelio Lascua and Baselino Repe to be utilized as state witnesses, prompting the relatives of the deceased spouses Simon and Corazon Hermida to file a vehement opposition, to which comment thereto was filed by the prosecution. On 28 June 1994, Baselino Repe and brothers Pedro and Cristituto Bariquit, and brothers Emegdio and Rogelio Lascua, were charged, in a Second Amended Information, [3] with Robbery with Homicide, the accusatory portion of which reads: That on or about the 8th day of February 1994 at around 2:00 o' clock dawn, more or less, in the Municipality of Naga, Province of Cebu, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, by means of violence against and intimidation upon persons, with intent to gain, did then and there willfully, unlawfully and feloniously take, steal and carry away without the consent of the owner thereof one (1) gold necklace and Three Thousand Pesos (P3,000.00) cash, Philippine Currency, and one (1) blanket which were placed by the owner Spouses Simon Hermida and Corazon Manabat Hermida on their wooden trunk, to the damage and prejudice of the said owner spouses Simon Hermida and Corazon Manabat Hermida of said items and the cash aforestated; that by reason or on occasion of the said robbery and for the apparent purpose of enabling the said accused to take, steal and carry away the aforestated personal belongings of spouses Simon Hermida and Corazon Manabat Hermida, the herein accused, in pursuance of their conspiracy, armed with bladed weapons, did then and there willfully, unlawfully and feloniously attack, assault, hack and stab the spouses Simon Hermida and Corazon Manabat Hermida and inflicting upon them several injuries which caused the said victims' death. CONTRARY TO LAW." In an order dated 14 July 1994, the trial court resolved to drop and discharge Rogelio Lascua as "party-accused" in Criminal Case No. CBU-35462, for the purpose of utilizing him as state witness. Upon arraignment, accused-appellant Pedro Bariquit entered a plea of guilty while accused-appellants Cristituto Bariquit, Emegdio Lascua, Jr. and accused Baselino Repe, pleaded not guilty to the charge. In the course of trial, however, accused-appellant Pedro Bariquit withdrew his earlier plea of guilty and, upon being re-arraigned, entered anew a plea of not guilty. In handing down the judgment of conviction, the trial court appreciated the presence of conspiracy and relied on facts culled from the collective testimony of state witness Rogelio Lascua and other prosecution witnesses namely: SPO3 Lino Tapao, PO1 Avelino Selloria, PO1 Kenneth Abella, PO1 Joel Faciolan, Dr. Florencio Ubas, and Emelia Hermida Mangila. Further, the trial court considered the testimony of co-accused Baselino Repe for the purpose of establishing the element of robbery in this special complex crime. Records of the case reveal that state witness Rogelio Lascua and all the accused-appellants are bound by close kinship; thus, Rogelio and Emegdio Lascua are brothers. In the samemanner, Pedro and Cristituto Bariquit are brothers. Moreover, Rogelio and Emegdio are nephews of Pedro and Cristituto. Baselino Repe, too, is a relative of Rogelio.[4] Notwithstanding kinship and in utter disregard of blood ties, state witness Rogelio Lascua, who at the time of the commission of the crime, was 14 years old,[5] recounted on the stand the details and circumstances which led to the death of spouses Simon and Corazon Hermida in the hands of accused-appellants. Around midnight of 07 February 1994, Rogelio was at their house situated in Pandan, Naga, Cebu when his uncle Cristituto arrived thereat looking for Rogelio's older brother Emegdio.Rogelio told Cristituto that Emegdio and Pedro were in the upper area gathering coconuts. [6] Cristituto requested Rogelio to accompany him there. [7] Upon reaching the upper

hill together with Cristituto, Rogelio saw Pedro, Emegdio and Baselino standing, not anymore engaged in gathering coconuts.[8] Emegdio then asked his brother Rogelio if the latter would participate in executing a plan to rob a certain couple. Rogelio refused and verbally manifested to Cristituto his intention to just go home. Cristituto and Emegdio told Rogelio not to go home, fearing that Rogelio might reveal their devious plan to consummate the robbery. On direct examination, Rogelio, likewise, testified that Pedro and Emegdio [9] threatened to kill Baselino in case the latter would not participate in the robbery. According to Rogelio, Cristituto who was then armed with a bolo, even held Baselino so as to prevent him from running away.[10] On foot - Pedro, Emegdio, Cristituto, Baselino, and Rogelio trekked toward the house of Simon and Corazon Hermida situated in Batwan, Cantaw-an, Naga, Cebu. Upon arrival at the vicinity of the Hermida's house around 1:00 AM of 08 February 1994, the group of five saw three persons engaged in a drinking spree inside the Hermida residence. The interior of the house was illuminated by a fluorescent lamp while its exterior was lighted by a bulb. Notwithstanding ample lumination, Rogelio testified that the three persons inside the Hermida's house were unknown to him; he did not recognize them. Accused-appellants, together with Rogelio, then waited near a mango tree which stood about 30 meters away from the house.[11] Around 2:00 AM, the three persons drinking inside the house left. Thereafter, Pedro instructed Rogelio to stay at a pig pen located 15-20 meters away from the Hermida house after-which, Pedro walked toward the house[12] closely followed by Emegdio, Cristituto and Baselino. Upon reaching the house, Pedro called Simon on the pretext that he would buy Kulafu and cigarettes. [13] However, Simon told Pedro that only cigarettes were available; Pedro retorted that he would just buy cigarettes after which Simon handed the cigarettes to Pedro. Pedro then requested Simon for a light prompting the latter to open the door and accede to Pedro's request. Once inside the house - and as soon as Simon lit Pedro's cigarette - Pedro suddenly pulled out his knife and lunged it on Simon's neck.[14] While Simon was already lying prostrate on the floor, [15] Emegdio followed suit and hacked Simon once on the neck with a bolo.Pedro then stabbed Simon's wife, Corazon, who tried to fight back. Corazon managed "to pull a knife beside the wall," stabbing Pedro on his left palm. [16] However, Pedro stabbed Corazon again which, eventually, caused the latter's death. At the time of the stabbing, Cristituto stayed outside the house, [17] holding Baselino, with his left hand and a bolo with his right hand. After witnessing the killing, Rogelio scampered toward his house and arrived thereat around 3:00 PM. To bolster its case, the prosecution presented the testimony of Dr. Florencio Ubas, Medical Health Officer of Naga, Cebu, who conducted and prepared the autopsy report of the deceased spouses Simon and Corazon Hermida. According to Dr. Ubas, Corazon sustained thirteen (13) fatal wounds inflicted by a sharp-edged instrument [18] and a sharp-pointed instrument,[19] while Simon sustained five (5) wounds. On the stand, Dr. Ubas testified that almost all of the wounds inflicted on Corazon were fatal, since they caused loss of blood. Further, Dr. Ubas explained that Simon's cause of death was similarly loss of blood due to hack wounds "at the region of the neck[20] inflicted by a sharp-edged instrument. As a result of these fatal wounds, Simon's "major vessels" as well as the victim's vital organs were injured,[21] causing his death. As to the element of robbery, co-accused Baselino Repe, although denying participation in the commission of the crime, narrated on the witness stand how the other accused-appellants stole the spouses' wooden trunk which contained money, necklace and blanket. Accused Baselino also corroborated with Rogelio Lascua's eyewitness account of the killing of the Hermida spouses. As to the robbery, accused Baselino testified that Pedro, after stabbing Corazon several times, went down the house. Emegdio then requested Cristituto to help carry the wooden trunk. [23]According to Baselino, as all of these events transpired, Pedro guarded him with watchful eyes and grabbed his left hand. [24]

Subsequently, Cristituto and Emegdio brought the wooden trunk to the bushes. With Pedro's assistance, Cristituto and Emegdio opened said trunk which contained money, necklace and a blanket. [25] Baselino was then ordered to sit down beside the accused-appellants.[26] Thereafter, Pedro, Emegdio and Cristituto brought the money and necklace to the house of Emegdio with Pedro holding Baselino by the hand. At Emegdio's house, Emegdio told the other accusedappellants that they would divide the loot among themselves. Pedro, Emegdio and Cristituto then placed the loot on the floor. Around 5:00 AM, Baselino, by jumping downstairs, managed to escape and fled home. [27] In the same morning, Pedro and Emegdio dropped by Baselino's house and tried to offer the necklace and part of the money to Baselino; however, Baselino refused, prompting Pedro and Emegdio to just leave the money and necklace on the floor of Baselino's house.[28] Before leaving the house, Pedro and Emegdio threatened to kill Baselino in case he squeals about the robbery and the killing. On the stand, Baselino claimed that he never touched the money offered by Pedro and Emegdio. He asservated his innocence and categorically denied any participation in the commission of the crime. According to Baselino, his presence at the crime scene was against his free will, inasmuch as the other accused-appellants were steadfast in their threats to end his life if he were to divulge the crime and fail to participate, or join them in the execution thereof. Similarly, the prosecution, in order to strengthen its bid for conviction, utilized the testimony of the police officers who responded to and investigated the robbery-killing. Thus, SPO3 Lino Tapao testified that around 7:30 AM of 08 February 1994, Feliciano Reponte, the Barangay Captain of Cantau-an, Naga, Cebu, reported to the police the death of the spouses Simon and Corazon Hermida. As a result, SPO3 Tapao responded to the alarm and proceeded to the Hermida

house, accompanied by P03 Boy Celoria, Dr. Florencio Ubas, Barangay Captain Feliciano Reponte and several Barangay Tanods.[29] Upon arrival at the Hermida house, the police laid eyes on the bloodied bodies of Simon and Corazon Hermida sprawled on the floor of the upper part of the victims' residence. [30] Further, the police recovered from the crime scene an "electrical switch" and "bark of tree", both stained with blood. Moreover, inside a culvert at Pandan, the police recovered a blanket.[31] At the scene of the crime, the police interviewed relatives of the victims [32] and, from them, elicited information that the possible assailants were accused-appellants Pedro Bariquit, Emegdio Lascua, Cristituto Bariquit and accused Baselino Repe.[33] Acting on such information, the police conducted a "hot pursuit" operation and proceeded to Umlang where barangay tanods met Pedro, who eluded arrest. Eventually, Pedro was arrested at Sitio Nangka, Tuyan, Cebu. From his possession, cash amounting to P480.50[34] and Japanese wartime money were recovered by the police. According to SPO3 Tapao, Pedro, upon his arrest, told police that his hand was injured when Corazon resisted and stabbed him in the process. [35] SPO3 Tapao further testified that Emegdio and Baselino were jointly arrested on 08 February 1994 at Sitio, Isabela, Pangdan, Cebu. During investigation, Emegdio admitted that "they were together, but they were not the one(s) who killed (the spouses)."[36] Emegdio pointed to Pedro and Cristituto as the killers of Simon and Corazon Hermida. [37] Based on such information, Emegdio and Baselino were brought to the police station for further investigation. [38] Thereafter, at the police headquarters, Emegdio admitted that Rogelio was also one of their companions. [39] As a consequence, the police returned to Isabela, Pandan, where they saw Rogelio and invited him to the police station for questioning. [40]

According to SPO3 Tapao, the police recovered P480.50 from Pedro; gold necklace and P800.00 from Baselino; and P800.00 from Emegdio.[42]

On direct examination, SPO1 Avelino Selloria testified to the effect that he recovered a knife from Baselino and that the latter admitted that said knife was the weapon Baselino brought during the incident. [43] Notwithstanding, Baselino claimed he had no participation in the commission of the crime. Further, Baselino allegedly told SPO1 Selloria that the money recovered from the former was Baselino's share of the proceeds of the crime. According to SPO1 Selloria, he recovered P800.00 from Emegdio;[44] Emegdio allegedly got the P800.00 from the "upper portion of his house", turned over said amount to Selloria and admitted that said cash was his share. [45] Upon the arrest of Baselino and Emegdio, the police immediately commenced investigation of the two accused by propounding questions regarding the commission of the crime even while they were still walking along the highway, on their way to the police station.[46] (emphasis ours) According to SPO1 Selloria, SPO4 Marcelino Perez, Jr. conducted further questioning of the accused "in the investigation room" of the Police Station, to wit: [47] "Q: Who conducted then the custodial investigation of this case? A: SPO4 Marcelino Perez, Jr. Q: Where was the accused investigated? A: At the investigation room. Q: And where was this investigation room located? A: Inside the police station, in a certain room. Q: When the accused were investigated, were you present? A: We were there but we did not listen to the investigation. Q: But you could see the accused being investigated? A: No sir. That time, there were many people looking but the investigation room was closed in order that people will not disturb the investigation. Q: At the time when the accused was investigated, was there any lawyer who assisted him at the time of the investigation? Atty. Flores: Immaterial and irrelevant, Your Honor because as a matter of fact, Your Honor, also, Your Honor, another ground is that witness was not around, he did not see whether there was a lawyer or not. COURT: No. The ground for that is not correct, because the testimony witness stated (sic) he drive away some of the onlookers. Atty. Dela Victoria: He was not listening. Court: Yes, he was not listening. Atty. Dela Victoria: It was your theory that there was actually an investigation conducted? COURT: There was an investigation, according to him, by an investigator and you asked him whether he was present during that investigation. He said he was present, only he did not hear and see the investigation

because the door was closed, and you asked him whether at the time of the investigation, accused was assisted by a lawyer during that custodial investigation. (to witness): Q: You did not see any lawyer there to assist the accused during investigation? A: I did not notice. Q: You mean to say there was a lawyer but you did not notice? A: I don't know whether there was lawyer at that time the investigation was conducted." (emphasis ours) At the trial, the prosecution likewise presented PO1 Kenneth Abella and PO1 Joel Faciolan, who corroborated the testimonies of SPO3 Lino Tapao and SPO1 Avelino Selloria. As to the aspect of civil liability, Emelia Hermida Mangila, daughter of the deceased spouses, took the witness stand to prove the funeral and burial expenses incurred as a result of the death of her parents, [48] which totaled P70,000.00. The prosecution submitted in evidence a receipt issued by the Holy Spirit Funeral Home [49] covering said expenses. On the other hand, the accused-appellants - with the exception of accused Baselino Repe who maintained that he had no participation in the commission of the crime - raised the twin defenses of alibi and denial. Thus, accused-appellant Emegdio Lascua testified that around 2:00 AM of 08 February 1994, he was sleeping in his parents' house at Isabela, Naga, Cebu, together with his siblings George and Estela, and his grandmother. On the stand, Emegdio admitted that he and the deceased spouses were neighbors inasmuch as Simon and Corazon lived "just a kilometer away from Emegdio's house.[50] Emegdio added that he only acquired knowledge of the commission of the crime from his neighbor's aunt, Conchita Tam-isan, who informed him thereof around 7:00 AM of 08 February 1994. Further, Emegdio declared that the travel time from his house to the Hermida residence is approximately twenty (20) minutes. [51] In the same manner, Cristituto Bariquit claimed innocence of the charge by interposing the defense of alibi. Cristituto alleged that at the time of the commission of the crime, he was cooking rice in the house of his parents-in-law in Sitio Isabela,[52] in preparation for his carpentry work for the day. He also testified that he witnessed the simultaneous arrest of Baselino and Emegdio by the police on 08 February 1994. For his defense, Pedro Bariquit, a former farm worker of the Hermida spouses, [53] relied similarly on alibi to substantiate his claim that at the time of the commission of the crime, he was asleep with his wife and three children in their house from 8:00 PM of 07 February to 08 February 1994. [54] Pedro testified that it would take an hour, by foot, for a person to reach the Hermida residence from his house. He, too, is unaware of any reason on the part of Rogelio to implicate him to the robbery-killing.[55] On direct examination, Pedro admitted that the police recovered the amount of P600.00 from his possession. Nonetheless, he denied knowing the owner of said amount, claiming that when Emegdio brought the money to his house and gave it to his wife, he was not present. [56] At the time of Pedro's arrest, he had a wound on his "knuckle and palm" which he allegedly sustained in an accident with his "tri-sikad" on 07 February 1995. Thus, on cross-examination:[57] "Q: What cause (sic) that wound, stone or a knife when you stumbled? A: Certain sharp object, it so happened when I stumbled, I accidentally placed my hand left palm on it (sic). Q: And it penetrated your palm front and back? Atty. Dela Victoria: Already answered. COURT: For emphasis witness may witness. Witness: Yes it penetrated in the other side (sic)." Unlike the other accused-appellants, accused Baselino Repe negotiated a different road in his bid for acquittal. Thus, while Pedro, Emegdio and Cristituto relied on alibi and denial, Baselino admitted, on the stand, his presence at the crime scene, narrated the harrowing details of the robbery-killing, yet, denied participation in the execution thereof. Hence, Baselino, in the course of trial, labored to establish that he was not part of the conspiracy and was only coerced to join accused-appellants for fear of his life. According to Baselino, he was left with no choice inasmuch as the other accused-appellants-the actual authors of the crime-threatened to kill him and, in fact, employed physical force so that he would not leave the group and squeal about the crime. On 30 June 1995, the RTC of Cebu City, Branch 18, in appreciating the presence of conspiracy, convicted accusedappellants Pedro Bariquit, Emegdio Lascua, Cristituto Bariquit and accused Baselino Repe of the special complex crime of robbery with homicide and, accordingly, sentenced them to death. On 20 July 1995, however, the trial court modified its decision as to the penalty imposed on accused Repe, considering that he was a minor at the time of the commission of the crime. Repe opted not to appeal his conviction; the conviction of the other accused-appellants, however, was elevated to this High Court via automatic review as a consequence of the death penalty involved. In the appellant's brief,[58] the following errors were ascribed to the trial court, to wit:

1. The trial court erred in giving weight and credit to the testimony of state witness Rogelio Lascua despite lack of corroboration in its material points. 2. The trial court erred in convicting accused-appellants despite failure of the prosecution to prove their guilt beyond reasonable doubt. We find the guilty verdict of the trial court, as to accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio Lascua, in order. As to the first assigned error, accused-appellants in effect assail the propriety of the discharge of Rogelio Lascua as state witness on the ground that Rogelio's testimony was not corroborated in its material points, allegedly in violation of Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, which enumerates the requisites of a proper discharge, to wit: "a) There is absolute necessity for the testimony of the accused whose discharge is requested; "b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; "c) The testimony of said accused can be substantially corroborated in its material points; "d) Said accused does not appear to be the most guilty; "e) Said accused has not at anytime been convicted of any offense involving moral turpitude." (emphasis ours) On this score, we are of the firm view that the testimony of state witness Rogelio Lascua was, in its material points, substantially corroborated by the testimony of accused-appellant Baselino Repe, and the findings of Dr. Valentin Ubas, who conducted and prepared the autopsy report of the victim spouses, and who testified thereon in the course of trial. Verily, corroborative evidence refers to additional evidence of a different kind and character tending to prove the same point.[59] Notably, the respective testimonies of Baselino Repe and Dr. Ubas lends material corroboration to the eyewitness account of Rogelio Lascua, specifically as to the killing of the spouses Simon and Corazon. During trial, both Rogelio and Baselino positively identified Pedro and Emegdio as the assailants who stabbed and hacked the victim spouses with a knife and bolo on that fateful early morning of 08 February 1994. The witnesses also depicted how the conspiracy was hatched and carried out, with accused-appellant Cristituto directly participating therein.Moreover, Dr. Ubas testified that Simon and Corazon died as a result of several stab and hack wounds, inflicted by sharp-pointed and sharp-edged instruments, on different parts of their bodies. Beyond this, long-settled is the rule that the discharge of a defendant, in order that he may be called to testify against his co-defendants, is within the sound discretion of the court; [60] the discharge of an accused in order that he may be utilized as a state witness is expressly left to the sound discretion of the court. [61] Indeed, the Court has the exclusive responsibility to see that the conditions prescribed by the rule exist. [62] For the law seeks to regulate the manner of enforcement of the regulations in the sound discretion of the court. The grant of discretion in cases of this kind under this provision was not a grant of arbitrary discretion to the trial courts, but such is to be exercised with due regard to the correct administration of justice. Under these circumstances, the trial court, in ordering the discharge of Rogelio Lascua as state witness, merely exercised its discretion in a manner consistent with the law and prevailing jurisprudence. Even so, this Court has time and again declared that even if the discharged witness should lack some of the qualifications enumerated by Section 9, Rule 119 of the Rules of Court, his testimony will not, for that reason alone, be discarded or disregarded. In the discharge of a co-defendant, the court may reasonably be expected to err; but such error in discharging an accused has been held not to be a reversible one. This is upon the principle that such error of the court does not affect the competency and the quality of the testimony of the discharged defendant. [63] Stated differently, the improper discharge, of an accused will not render inadmissible his testimony nor detract from his competency as a witness.[64] (emphasis ours) Once the discharge is ordered, any future development showing that any, or all, of the five conditions have not been actually fulfilled, may not affect the legal consequences of the discharge, [65]and the admissibility and credibility of his testimony if otherwise admissible and credible. [66] Any witting or unwitting error of the prosecution in asking for the discharge, and of the court granting the petition, no question of jurisdiction being involved, cannot deprive the discharged accused of the acquittal provided by the Rules,[67] and of the constitutional guarantee against double jeopardy. [68] As to the second assigned error, accused-appellants aver that the prosecution failed to establish their guilt beyond reasonable doubt. In support thereof, accused-appellants question the admissibility of the testimonies of the police officers who propounded questions and conducted the custodial investigation without apprising them of their constitutional rights. Moreover, accused-appellants argue that certain physical evidence such as the blanket, passbook, bolo, knife, necklace, Japanese money, wallet and cash are likewise inadmissible in evidence, inasmuch as the same were recovered and obtained by the police as a result of accused-appellants' uncounselled admission.

After an exhaustive perusal of the records, we find inadmissible the uncounselled extra-judicial admission of accused-appellants, as well as the testimonies of the police officers pertaining thereto, for having been obtained in clear violation of accused-appellants' rights enshrined in the Constitution. Section 12, Article III of the Constitution explicitly provides: 1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. X X X X X X X X X 3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. X X X Verily, the mantle of protection under this constitutional provision covers the period from the time a person is taken into custody for investigation of his possible participation in the commission of a crime, or from the time he is singled out as a suspect in the commission of the crime, although not yet in custody. [69] Courts are not allowed to distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule. Any information or admission given by a person while in custody - which may appear harmless or innocuous at the time without the competent assistance of an independent counsel - should be struck down as inadmissible. [70] It bears stressing that the rights under Section 12 are accorded to "any person under investigation for the commission of an offense." An investigation begins when it is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as suspect, i.e., when the police investigator starts interrogating or exacting a confession from the suspect in connection with an alleged offense. [71] Thus, in People vs. Bolanos,[72] we considered inadmissible the verbal extra-judicial admission of accused-appellant Ramon Bolanos on the ground that he, "being already under custodial investigation while on board the police patrol jeep on the way to the Police Station where formal investigation may have been conducted, should have been informed of his constitutional rights under Article 3, Section 12 of the 1987 Constitution. In the recent case of People vs. Bravo,[73] where we applied the exclusionary rule, this Court, speaking through Madame Justice Minerva Gonzaga-Reyes, aptly observed: The accused was under arrest for the rape and killing of Juanita Antolin and any statement allegedly made by him pertaining to his possible complicity in the crime without prior notification of his constitutional rights is inadmissible in evidence. The policeman's apparent attempt to circumvent the rule by insisting that admission was made during an `informal talk' prior to custodial investigation proper is not tenable." Analogously in the present case, the police authorities, upon the arrest of Emegdio and Baselino, immediately asked questions and conducted custodial investigation of said accused-appellants regarding their participation in the commission of the crime, even while they were still walking along the highway on their way to the police station. Records reveal that no counsel was present to assist Emegdio and Baselino during the interrogation nor was accused-appellants informed of their rights under the Constitution. During trial, SPO1 Avelino Selloria testified: "Q: Along the way, as you said, you have conducted investigation on Repe. What questions did you ask Mr. Repe? A: We asked both Repe and Emegdio as to who were their companions. "Q: That was all you asked both of them? That was the only question you asked them? A: We asked them who were their companions and where were they. "Court: "Q: And what was their answer? "A: They mentioned, as their companions, Pedro Bariquit, Cristituto Bariquit and Roel Lascua and they further informed me they had come here already to Tuyan. Pedro and Roel were in Tuyan. They informed me that and (sic) Roel was just in Isabela, Pangdan. XXXXXXXXX "Q: So aside from these 2 questions, no other questions were asked on Emegdio Lascua and Baselino Repe? "A: Yes sir. "Q: What (was) their answer? "A: We asked them why they robbed and killed. "COURT: "Q: What was their answer?

"A: They said they had planned the robbery. "ATTY. SARINO: "Q: Who said that? "A: Emegdio. "Q: It was only Emegdio who said that? "A :Because it was him whom I asked, because we were walking along the road." (emphasis ours) Moreover, on cross-examination, SPO1 Selloria stated: [74] "A: From the area where we arrested them, we asked questions along the way. "Q: When you asked questions, the accused were already under your custody? "A: Yes, sir. We were walking along. "Q: Therefore, when under custody, that person is under custodial investigation? "Atty. Flores: He is asking for opinion. "COURT: Reform. "Atty. Dela Victoria: Q: What were the questions you asked to the accused? "A: We asked whether they were the ones who robbed the couple, Simon Hermida and Corazon Hermida." (emphasis ours) To our mind, the interrogation conducted by the police on accused-appellants Emegdio and Baselino falls under the term "custodial investigation" pursuant to prevailing jurisprudence and the provisions of Republic Act 7438. It may not be amiss to observe that under R.A. 7438, the requisites of a "custodial investigation" are applicable even to a person not formally arrested but merely "invited for questioning. [75] In the case before us, it is of no moment that the questioning was done along the highway while Baselino and Emegdio were being led by the police to the station. To put it differently, the place of interrogation is not at all a reliable barometer to determine the existence or absence of Custodial investigation. Of striking material significance is and the fact that the tone and manner of questioning by the police, as gleaned from the records, reveal that they already presumed accused-appellants as the perpetrators of the crime and singled them out as the despicable authors thereof. Under these circumstances, the police authorities should have properly apprised them of their constitutionallyprotected rights, without which such uncounselled admissions or any other evidence obtained as a result thereof, or proceeding therefrom - the putrid source - are deemed likewise inadmissible in evidence against the accused-appellants. In this jurisdiction, the burden to prove that an accused waived his rights to remain silent and the right to counsel before making a confession under custodial investigation rests with the prosecution. It is also the burden-of the prosecution to show that the evidence derived from confession is not tainted as "fruit of the poisonous tree." The burden has to be discharged by clear and convincing evidence.[76] In the instant case, the police officers were remiss in performing such duty and the prosecution equally failed to discharge such burden. The records, indeed, are bereft of any finding that the police labored to properly apprise accusedappellants of their rights. Further, no counsel was present when Emegdio and Baselino answered the questions propounded to them by the police, both along the highway and at the police station. In view of these constitutional infirmities attendant to the interrogation, we consider the extrajudicial admissions of accused-appellants and the testimonies of the police officers in relation thereto inadmissible. For, even if the confession contains a grain of truth, but it was made without the assistance of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. [77] Applying the exclusionary rule, we also declare inadmissible the money and necklace recovered from accusedappellants for being tainted as "fruits of the poisonous tree." Clearly, the records show that such evidence were derived or recovered from a polluted source, to wit, the accused-appellants' uncounselled admissions. In People vs. Alicando,[78] this Court explicated the principle, to wit: " We have not only constitutional ized the Miranda warnings in our jurisdiction. We also have adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree", a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United States.[79] According to this rule, once the primary source (the 'tree') is shown to have been unlawfully obtained, any secondary or derivative evidence (the 'fruit') derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the fruit of the poisonous tree' is the indirect result of the same illegal act. The fruit of the poisonous tree' is at least once removed from the illegally seized evidence but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained." Notwithstanding the inadmissibility of the uncounselled confessions and certain pieces of object evidence such as the necklace and money, we still hold that the prosecution clearly proved the guilt of accused-appellants Pedro Bariquit,

Cristituto Bariquit and Emegdio Lascua, beyond reasonable doubt. It is well to note that the eyewitness account of Rogelio Lascua, coupled with the testimony of accused Baselino Repe and further corroborated by the testimony and findings of Dr. Valentin Ubas, suffice to convict accused-appellants of the crime charged. In the instant case, the prosecution, through the testimony of state witness Rogelio Lascua, as corroborated by the recollection of Baselino Repe on the witness stand, indubitably established the presence of conspiracy among the accused-appellants Pedro, Cristituto and Emegdio in the commission of the crime. Clearly, the acts of Pedro, Emegdio and Cristituto before, during and after the commission of the crime confirm that the accused-appellants-- animated by a joint purpose and corrupt design, that is to rob the Hermida spouses-acted in unison and concerted effort in the execution of the planned robbery. Evidently, the meeting at the upper hill area, the hatching of the planned robbery, the stabbing, hacking and killing of the Hermida spouses, the threats directed against Baselino Repe, the asportation of the wooden trunk containing the valuables and the division of the loot -- taken collectively -- substantiate and lend a formidable factual basis to the trial court's finding of conspiracy among Pedro, Emegdio and Cristituto. Crystalline is the rule that where conspiracy is established, the precise modality or extent of participation of each individual conspirator becomes secondary and the act of one is the act of all. The degree of actual participation in the commission of the crime is immaterial. [80] Consequently, accused-appellants' defense of alibi must fail in view of the positive identification of Pedro, Emegdio and Cristituto as the perpetrators of the crime. Alibi is one of the weakest defenses an accused can invoke, and the courts have always looked upon it with caution, if not suspicion, not only because it is inherently unreliable, but likewise because it is easy to fabricate. [81]To prosper, alibi must strictly meet the requirements of time and place. [82] Thus, the accused must establish by clear and convincing evidence that he was so far away that it was not possible for him to have been physically present at the locus criminis or its immediate vicinity at the time the crime was committed. Again, the accused-appellants miserably failed to discharge this burden. On the stand, Emegdio testified that his house is merely twenty minutes away from the Hermida residence. [83] In the same vein, Pedro testified that a person coming from his house could reach, by foot, the Hermida residence in about an hour. To our mind, the short distances and negligible time between accused-appellants' residences and the place of the commission of the crime negate their defense of alibi. Beyond this, alibi is unavailing in light of the positive identification by credible witnesses who narrated the details of the killing and the robbery. This Court affords ample weight and credence to the testimonies of state witnesses Rogelio Lascua and Baselino Repe. In doing so, we are not unmindful of the principle that the testimony of a co-accused turned state witness should be received with great caution and should be carefully scrutinized. [84] Hence, we treated with circumspection the gleaming fact that Rogelio Lascua is a blood relative of accused-appellants. The records show that state witness Rogelio Lascua and accused-appellant Emegdio are brothers. To be sure, this circumstance has not escaped our focus and attention, thus the rationale for the greater weight and credibility accorded to Rogelio's narration. Human experience and common knowledge taught us that no brother would ever thrust his own flesh and blood down the pit of death, fully cognizant of the irreversible repercussions of his in-court testimony, were he not impelled by the strongest urge to speak the language of truth. Only a man cursed with a depraved mind and a perverted heart could perpetrate such falsehood. The trial court, in believing the version of facts as recollected by Rogelio Lascua, found the state witness to have spoken only one language-that of truth. Absent any clear showing that Rogelio was actuated by ill-motive and selfish ends, and fortified by the fact that Rogelio is a close relative of accused-appellants, this Court a fortiori finds his narration truthful and unblemished by falsehood. Many times beyond numbering, we have enunciated the rule that to sustain a conviction for the crime of robbery with homicide, it is imperative that the robbery itself be proven conclusively as any other essential element of a crime. [85] To this end, the prosecution clearly established that the purpose of the accused-appellants in killing the victim spouses was to ensure the success of their previous devious plan-to rob Simon and Corazon Hermida. Thus, while it may be true that the "homicide" preceded the taking of the victims' valuables, the killing of the spouses was nonetheless perpetrated for the aim of eliminating an obstacle, removing an opposition to the robbery and doing away with witnesses. Accordingly, the death of the victims arose by reason, or on occasion, of the robbery; the pieces of evidence adduced and presented by the prosecution divulge a direct relation and intimate connection between the asportation of the Hermida's valuables and their brutal death in the hands of the accused-appellants. Hence, the conviction of accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio Lascua stands. As to the aggravating circumstances, we hold that the trial court erred in appreciating the presence of treachery and band in the commission of the felony. In the present case, the accused-appellants were charged with, tried, and convicted for the crime of robbery with homicide. In our jurisdiction, this special complex crime is primarily classified as a crime against property and not against persons, homicide being a mere incident of the robbery with the latter being the main purpose and object of the criminal. [86] Under Article 14 of the Revised Penal Code, treachery is applicable only to crimes against persons. [87] Accordingly, inasmuch as robbery with homicide is a crime against property and not against persons, treachery cannot be validly considered in the present case. Further, the aggravating circumstance of band may not be appreciated in the commission of the crime. Jurisprudence is consistent that band is deemed aggravating whenever more than three armed malefactors shall have acted together in the commission of the offense.[88] (emphasis ours)

In view of the fact that only three accused-appellants- Pedro Bariquit, Cristituto Bariquit and Emegdio Lascuaconspired and participated in the robbery-killing, band was not attendant in the commission of the felony. Nevertheless, this Court considers the attendance of fraud, dwelling and evident premeditation in the commission of the offense. Fraud consists of insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design. [89] Hence, in a decided case where the defendants, upon the pretext of wanting to buy a bottle of wine, induced the victim to go down to the lower story of his dwelling where the wine was stored, entered it when the door was opened to him, and there commenced the assault which ended in his death, [90] this Court appreciated the aggravating circumstance of fraud.[91] In the case before us, accused-appellants managed to enter the house of the victims-spouses by employing insidious words and machinations, specifically by feigning to buy Kulafu and cigarettes from Simon. Pedro even requested Simon to light his cigarette so that the latter would open the door and pave the way for the accused-appellants' entry into the house. Likewise, dwelling is deemed aggravating in the instant case where the crime was perpetrated in the house where the Hermida Spouses lived, and without any provocation from the victims Simon and Corazon. [92] Similarly, evident premeditation attended the commission of the felony. For evident premeditation to aggravate a crime, there must be proof, as clear as the evidence of the crime itself, of the following elements: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that he clung to his determination; and (3) sufficient lapse of time, between determination and execution, to allow himself to reflect upon the consequences of his act[93] and to allow his conscience to overcome the resolution of his will had he desired to harken to its warnings. [94] The prosecution in the present case established by clear and convincing evidence, as to how and when the planned robbery was hatched. As borne by the records, accused-appellants met at the upper hill area around 12:00 AM of 08 February 1994, where the planned robbery was agreed upon and visualized. Thereafter, accused-appellants, armed with bladed weapons, trekked from the place of assemblage toward the victims' residence and, upon arrival at the vicinity thereof, waited under a mango tree for approximately an hour before finally proceeding to the house to consummate the robbery-killing. Clearly, the lapse of two hours-from 12:00 AM to 2:00 AM-suffice to satisfy the third requisite and allow accusedappellants to meditate and reflect upon the consequences of their criminal acts. Thus, in one case,[95] we held that there was evident premeditation where two hours passed from the time the accused clung to his determination to kill the victim, up to the actual perpetration of the crime. Moreover, evident premeditation can be presumed where conspiracy is directly established [96], as in the instant case. By way of civil indemnity, we affirm the trial court's award of P100,000.00 for the deaths of Simon and Corazon Hermida. Further, we hold accused-appellants liable to pay the amount ofP50,000.00 as moral damages pursuant to Articles 2219(1) and 2206(3) of the Civil Code. Considering that the crime was committed with the presence of three aggravating circumstances, [97] the amount of P20,000.00 is also awarded as exemplary damages. Likewise, we grant an award of P70,000.00 as actual damages representing the funeral and burial expenses incurred as a result of the death of Simon and Corazon Hermida, inasmuch as the evidence on record supports such award.[98] Four Justices of the Court have continued to maintain the unconstitutionality of Republic Act No. 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. Nonetheless, as to accused Baselino Repe, we hold that the prosecution failed to prove his guilt beyond reasonable doubt and that the trial, court gravely erred in convicting Repe of the crime charged considering that the lower court overlooked circumstances and misappreciated certain material facts, which, if weighed and treated with deeper circumspection, would lead to Repes acquittal. At this point, it bears emphasis that the basis of Repels conviction is riveted on the trial court's conclusion, albeit erroneous, that accused Repe conspired and cooperated with the other accused-appellants in the commission of the crime. Certainly, a painstaking review and appraisal of the evidence disclose that, contrary to the trial court's findings, Repe was not part of the conspiracy; the prosecution was remiss in establishing Repes overt acts clearly showing his intention and participation in the criminal design. Needless to say, evidence of intentional participation is indispensable. [99] To this end, overt acts of the accused may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy.[100] On the contrary, Repe did not actively participate in the commission of the crime; Repe did not extend any moral assistance to the other accused-appellants, as in fact, from the time of inception of the plan up to its execution, he strongly refused to assent and join the malefactors or profit from the fruits of the crime. Moreover, Repe did not exercise moral ascendancy over the accused-appellants, as he was even the one coerced and threatened to be present at the crime scene, for fear of his own life. By itself, mere presence at the scene of the crime at the time of its commission is not sufficient to establish conspiracy.[101]

Likewise, the records are clear that the threats directed against Repe by the three accused-appellants-his relatives at that were real and present. Accused-appellants Pedro, Emegdio and Cristituto were all armed with bladed weapons and persistently and aggressively showed their resolve to harm and kill Repe if the latter would not participate or join them at the scene of the crime; the chance for escape was hence-nil. Pitted against Pedro, Emegdio and Cristituto-Repe was clearly no match. Stated differently, the compulsion exerted was of such nature and character as to leave him no genuine opportunity for self-defense in equal combat or for escape.[102] Even state witness Rogelio Lascua testified that the accused-appellants hurled serious threats and employed physical force against Repe.[103] Similarly, the records are bereft of any showing that Repe agreed with Pedro, Emegdio and Cristituto to join the robbery, nor that Repe acted in a manner manifesting commonality of design and purpose. [104] The fact that Repe and Emegdio were arrested together around 3:00 PM of 08 February 1994 does not militate against Repes bid for acquittal inasmuch as the records reveal that it was Emegdio who approached and visited Repe in his house to ask the latter for a "young coconut. [105] All told, without evidence-clear and convincing at that-as to how accused Repe participated in the perpetration of the crime, conspiracy cannot be appreciated against him. [106] Undoubtedly, a verdict of conviction must hinge itself on the strength of the prosecution's evidence, definitely not on the weakness or impotency of the evidence for the defense. As the evidence for the prosecution fell short of the quantum of proof required to prove Repes guilt beyond the peradventure of doubt, this Court is then duty-bound to pronounce Repels acquittal and strike down the judgment of conviction upon him. WHEREFORE, in view of the foregoing, accused Baselino Repe is hereby ACQUITTED on grounds of reasonable doubt and ordered released immediately, unless he is being detained for some other legal cause. As to the accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio Lascua, this Court finds them guilty of the special complex crime of Robbery with Homicide and hereby sentences each of them to suffer the supreme penalty of death. In addition, accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio Lascua are ordered to pay jointly and severally the heirs of Simon and Corazon Hermida the amount ofP100,000.00 as civil indemnity; P50,000.00 as moral damages; P20,000.00 as exemplary damages; and P70,000.00 as actual damages. Pursuant to Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forwarded to the Office of the President for possible exercise of the pardoning power. SO ORDERED.