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G.R. No.

110290 January 25, 1995


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME "JIMMY" AGUSTIN, WILFREDO "SONNY QUIAO, MANUEL "JUN" ABENOJA, JR., and FREDDIE
"BOY" CARTEL, accused. JAIME "JIMMY" AGUSTIN, accused-appellant.
DAVIDE, JR., J.:
In five separate informations filed on 22 May 1987 with the Regional Trial Court (RTC), Branch 3, Baguio City, the
accused were charged with murder in Criminal Cases Nos. 4647-R and 4648-R, with frustrated murder in Criminal
Case No. 4649-R, and with attempted murder in Criminal Cases Nos. 4650-R and 4651-R. The crimes were allegedly
committed on 6 September 1986 in Baguio City and resulted in the deaths of Dr. Napoleon Bayquen and Anna
Theresa Francisco and the wounding of Anthony Bayquen, Dominic Bayquen, and Danny Ancheta.
The informations in the murder cases charged that the accused acted in conspiracy and alleged the presence of the
qualifying circumstance of treachery and the ordinary aggravating circumstances of evident premeditation and price. 1
Only the appellant and Wilfredo Quiao were arrested. However, before Quiao could be arraigned, he escaped on
12 July 1987 while under the custody of the Philippine Constabulary/PNP Regional Command I at Camp Dangwa, La
Trinidad, Benguet. 2 The cases, which were consolidated and jointly tried, proceeded only against the appellant.
After the appellant pleaded not guilty at his arraignment on 4 September 1987, trial on the merits was held on various
dates from 11 May 1988 until 10 January 1990.
On 30 May 1990, the trial court promulgated its decision 3 in the consolidated cases acquitting the appellant in Criminal
Case No. 4649-R (frustrated murder) and Criminal Cases Nos. 4650-R and 4651-R (attempted murder) for insufficiency of
evidence but convicting him in the two murder cases, Criminal Cases Nos. 4647-R and 4648-R, with treachery as the
qualifying circumstance. 4 It also ruled that the aggravating circumstances of evident premeditation and price had been duly
established. It then sentenced the appellant as follows:

Upon these premises, the accused Jaime Agustin is found GUILTY of two (2) counts of murder, the prosecution
having proven his guilt beyond reasonable doubt. In each of the criminal cases aforesaid, he should be sentenced to
the maximum penalty of Death, there being two aggravating circumstances. However, since the death penalty is not
imposable at this time, the accused is sentenced to Reclusion Perpetua. He is further ordered to indemnify the heirs
of the victims; Anna Theresa Francisco the sum of sixty Three Thousand Pesos (P63,000.00) as actual damages

(Exhibits "F," "I" and "G"); and Dr. Napoleon Bayquen, the sum of Thirty Thousand Pesos (P30,000.00). With costs
against the accused, Jaime Agustin.
SO ORDERED. 5
The version of the prosecution is based on the testimonies of (1) Isidoro Magpantay, a member of the Baguio City
Police Force, who identified the initial report (Exhibit "A"); (2) Christie Napeas, a stenographic reporter in the Office
of the City Fiscal of Baguio City, who took down the stenographic notes of City Fiscal Erdolfo Balajadia's
investigations of accused Wilfredo Quiao (Exhibit "D") on 30 January 1987 and of the appellant on 10 February
1987, and who identified her stenographic notes containing the statement of the appellant (Exhibit "B") and the
transcript of said stenographic notes (Exhibit "C"); (3) Dominic Bayquen, the victim in Criminal Case No. 4650-R, who
testified on how they were shot; (5) Eulogio Francisco, the father of Anna Theresa Francisco, who identified her death
certificate (Exhibit "I") and testified on the list of expenses (Exhibit "G"); (6) Rogelio Mumar, a supervising ballistics
expert, who declared that the fourteen shell recovered from the scene of the crime were not fired from any of the
three armalite rifles submitted to him; (7) Atty. Reynaldo Cajucom, who testified that he was the lawyer who assisted
the appellant and accused Wilfredo Quiao while they were being investigated by City Fiscal Balajadia; and (8) Lilian
San Luis Bayquen, wife of Dr. Napoleon Bayquen and mother of Dominic Bayquen, who testified on what she did
after Dominic informed her by telephone about the shooting incident.
The evidence for the prosecution established the following facts. At past 7:30 p.m. of 6 September 1986 in Baguio
City, Dr. Napoleon Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend, Anna Theresa Francisco;
his daughter, Dominic; and Danny Ancheta, a family friend, were on their way aboard their Brasilia to the doctor's
residence at Trancoville at 21-D Malvar Street, Baguio City, from his driving the car. While they were cruising along
Malvar Street and nearing the Baptist church, a man came out from the right side of a car parked about two meters to
the church. The man approached the Brasilia, aimed his armalite rifle through its window, and fired at the passengers.
The Brasilia swerved and hit a fence. The gunman immediately returned to the parked car which then sped away.
All those in the car were hit and Dr. Bayquen and Anna Theresa died on the spot. Dr. Bayquen's head was blown off.
Dominic was bale to get out of the Brasilia to run to the Alabanza store where she telephoned her mother and told her
what had happened. Later, she and her mother brought her father and Anthony to the hospital. 6 Danny Ancheta went
home and was then brought to the Notre Dame Hospital for treatment. 7 Anna Theresa Francisco was brought to the funeral
parlor. 8 The police later arrived at the crime scene and conducted an investigation. they recovered some empty shells of an
armalite rifle. 9

On 30 January 1987, accused Wilfredo "Sonny" Quiao, an alleged former military agent or "asset" who had been
picked up in La Union by the police authorities, confessed during the investigation conducted by Baguio City Fiscal
Erdolfo Balajadia in his office that he was the triggerman in the fatal shooting of Dr. Bayquen and Anna Theresa
Francisco. He implicated Manuel "Jun" Abenoja, Jr., allegedly a fellow military agent and the "bagman" who engaged
him to kill Dr. Bayquen for a fee, Freddie "Boy" Cartel, who provided the armalite, and a certain "Jimmy." During the
investigation, Wilfredo Quiao was assisted by Atty. Reynaldo Cajucom, a representative of the Integrated bar of the
Philippines (IBP). Ms. Christie Napeas, a stenographic notes of the proceedings during the investigation. 10
Thereafter, she transcribed the notes and the transcription became the sworn statement of Wilfredo Quiao which he signed,
with the assistance of Atty. Cajucom, and swore to before City Fiscal Balajadia. 11

In the morning of 10 February 1987, "Jimmy," who turned out to be appellant Jaime Agustin, was picked up in Sto.
Tomas, Pangasinan, by military personnel and brought to Baguio city. At 4:00 p.m. of that date, he was taken to the
office of City Fiscal Erdolfo Balajadia where he was investigated in connection with the crime. Atty. Reynaldo
Cajucom assisted the appellant during the investigation. Ms. Christie Napeas took down stenographic notes of the
proceedings during the investigation. The stenographic notes consisted of 22 pages (Exhibit "B"), each of which was
signed afterwards by the appellant and Atty. Cajucom. Ms. Napeas subsequently transcribed these notes which the
prosecution marked as Exhibit "C." The appellant narrated therein his knowledge of the shooting of Dr. Bayquen and
revealed the identities of his cohorts in the crime. In a confrontation two days later, he identified Quiao as "Sony," the
triggerman.
The defense presented the appellant and his wife, Elizabeth Agustin. The appellant, who is a farmer and whose
highest educational attainment was grad four, impugned the validity of his extrajudicial statement. he alleged that in
the morning of 10 February 1987, he went to Carmen, Pangasinan, to buy some fertilizer and upon his return he was
met by two armed men who took him to their car where two other companions, armed with armalites, were waiting.
They then brought him out of Pangasinan. He later learned that they were on their way to Baguio City.
Inside the car, he was asked if he knew Boy and Jun, and he answered that he did not. Along Kennon Road, he was
made to stoop down at the back seat whenever they would reach a toll booth, and then brought out three times near
the ravines and made to kneel at gunpoint in order to force him to admit his involvement in the shooting, which he
finally did out of fear. Then he was brought to the Office of the City Fiscal of Baguio City.
While he was giving his statement at the fical's office, the armed men stayed with him and their presence deterred
him from telling the investigating fiscal that he was being threatened. He further declared that although he was given
a lawyer, Atty. Reynaldo Cajucom, to assist him, he, nevertheless, asked for his uncle who is a lawyer, Atty. Oliver

Tabin, and that Atty. Cajucom interviewed him from only two minutes in English and Tagalog but not in Ilocano, the
dialect he understands. Then later, at Camp Dangwa to where he was taken, he told his wife to get in touch and talk
with Atty. Tabin. Finally, he asserted that he was promised by his captors that he would be discharged as a state
witness if he cooperates, but the plan did not push through because his co-accused, Quiao, escaped. 12
Elizabeth Agustin corroborated her husband's story that he went to Carmen in the morning of 10 February 1987 to
buy some fertilizer and that he failed to return. Her efforts to locate him proved futile until days later when she finally
learned that he was detained at Camp Dangwa. 13
The trial court admitted the appellant's extrajudicial statement and gave scant consideration to his claim of force,
intimidation, and other irregularities because of the following reasons: (a) the presence of material improbabilities in
his tale of when and how he was allegedly taken at gunpoint from his hometown in Pangasinan; (b) it was improbable
that he was made to kneel thrice at gunpoint along Kennon Road considering the vehicles which were passing along
that road; (c) it was unbelievable that when he was in the Fiscal's Office he asked for his uncle, Atty. Tabin if he could
not go home for a period of one month; (d) no less than the city Fiscal of Baguio City interrogated him and yet he did
not tell the fiscal that he was being forced to give a statement; (e) the fiscal even provided him with a lawyer who
conferred with him and apprised him of his rights; (f) he signed each and every page of the stenographic notes of his
statement and this was witnessed by no less than the City Fiscal of Baguio and the lawyer who assisted him; and (g)
he disclosed in his statement that he voluntarily gave it because of his ill feeling against his co-accused who did not
give him any money.
The trial court then concluded that "[t]here was conspiracy and the accused was a direct participant in the crime," and
that while he tried to minimize his culpability, his "extrajudicial confession" shows that "he was in on the plan," and
even "expected to be paid, to be rewarded monetarily"; and that he "decided to give a statement only when he was
not given the money." Since the proof of corpus delicti required in Section 3, Rule 133 of the Rules of Court was
established by the prosecution's evidence, it found his conviction for murder inevitable.
The appellant filed a notice of appeal. In this brief, he imputes upon the trial court the commission of this lone error:
THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN CONSIDERING ACCUSED-APPELLANT'S
EXTRAJUDICIAL CONFESSION AS ADMISSIBLE EVIDENCE AGAINST HIM. 14
The appellant insists that his extrajudicial confession was taken in violation of his rights under Section 11, Article III of
the constitution. He argues that the lawyer who assisted him, Atty. Reynaldo Cajucom, was not of his own choice but
was foisted upon him by the city Fiscal. Worse, the said lawyer is a law partner of the private prosecutor, Atty. Arthur

Galace, and conferred with him in English and Tagalog although he understood only Ilocano. Moreover, when Atty.
Cajucom briefly conferred with him and when the city Fiscal interrogated him, his military escorts were present.
He stresses that the lawyer "who assists the suspect under custodial interrogation should be of the latter's choice, not
one foisted on him by the police investigator or other parties," 15 and that where there are serious doubts on the
voluntariness of the extrajudicial confession, the doubts must be resolved in favor of the accused. 16 He then concludes that
his extrajudicial confession is inadmissible and his conviction cannot stand, there being no other evidence linking him to the
crimes charged.
In its brief, 17 the appellee, reiterating the reasons of the trial court in upholding the validity of the confession, prays for the
affirmance of the appealed decision.

After a careful study of the records of Criminal Cases Nos. 4647-R and 4648-R and a painstaking evaluation of the
evidence, we find this appeal to be impressed with merit. Indeed, the extrajudicial admission not extrajudicial
confession of the appellant, which is the only evidence of the prosecution linking him to the commission of the
crime charged, is wholly inadmissible because it was taken in violation of Section 12, Article III of the Constitution. We
also see in these cases a blatant disregard of the appellant's right under Section 2 of Article III when he was
unlawfully arrested.
Before we go any further, it should be pointed out that, contrary to the pronouncement of the trial court and the
characterization given by the appellant himself, the assailed extrajudicial statement is not extrajudicial confession. It is
only an extrajudicial admission. We take this opportunity to once more distinguish one from the other. Sections 26
and 33, rule 30 of the Rules of
Court 18 clearly show such a distinction.
In a confession, there is an acknowledgment of guilt of the accused or of the criminal intent to commit the offense with
which he is charged. 19 Wharton 20 defines a confession as follows:
A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged,
while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in
connection with proof of other facts, to prove his guilt. In other words, and admission is something less than a
confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a
conviction, and which tends only to establish the ultimate fact of guilt.
We have examined the assailed extrajudicial statement of the appellant, and we are satisfied that nothing therein
indicates that he expressly acknowledged his guilt; he merely admitted some facts or circumstances which in
themselves are insufficient to authorize a conviction and which can only tend to establish the ultimate fact of guilt.

Nevertheless, when what is involved is the issue of admissibly in evidence under Section 12, Article III of the
Constitution, the distinction is irrelevant because Paragraph 3 thereof expressly refers to both confession and
admission. Thus:
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence
against him.
The first two paragraphs of Section 12 read:
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 be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against
him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
These first and second paragraphs are taken from Section 20, Article IV (Bill of Rights) of the 1973 Constitution which
read:
Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any
confession obtained in violation of this section shall be inadmissible in evidence.
The first two paragraphs of Section 12, Article III of the present Constitution have broadened the aforesaid Section 20
in these respects: (1) the right to counsel means not just any counsel, but a "competent and independent counsel,
preferably of his own choice"; (2) the right to remain silent and to counsel can only be waived in writing and in the
presence of counsel; and (3) the rule on inadmissibility expressly includes admissions, not just confessions.
In Morales vs. Enrile, 21 this Court, applying Section 20, Article IV of the 1973 Constitution, laid down the duties of an
investigator during custodial investigation and ruled that the waiver of the right to counsel would not be valid unless made with
the assistance of counsel:

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest
and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent
and to counsel, and that any statement he might make could be used against him. The person arrested shall have the
right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone
if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is

accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the
person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or
by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the
assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory of
inculpatory, in whole or in part, shall be inadmissible in evidence.
We reiterated the above ruling in People vs. Galit, 22 People vs. Lumayok, 23 People vs. Albofera, 24 People vs. Marquez, 25
People vs. Penillos, 26 and People vs. Basay, 27 among other cases.

The right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful
information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." 28 It is not
enough for the investigator to merely repeat to the person under investigation the provisions of Section 20, Article IV of the
1973 Constitution or Section 12, Article III of the present Constitution; the former must also explain the effects of such
provision in practical terms, e.g., what the person under investigation may or may not do, and in language the subject fairly
understands. The right to be informed carries with it a correlative obligation on the part of the investigator to explain, and
contemplates effective communication which results in the subject understanding what is conveyed. Since it is comprehension
that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education,
intelligence, and other relevant personal circumstances of the person undergoing the investigation.

In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be
asked if he wants to avail of the same and should be told that he can ask for counsel if he so desires or that one will
be provided him at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him
and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the
assistance of counsel. That counsel must be a lawyer. 29
The waiver of the right to counsel must be voluntary, knowing, and intelligent. 30 Consequently, even if the confession of
an accused speaks the truth, if it was made without the assistance off counsel, it is inadmissible in evidence regardless of the
absence of coercion or even if it had been voluntarily given. 31
The extrajudicial admission of the appellant, 32 contained in twenty-two pages of yellow pad, does, indeed, appear to be
signed by him and Atty. Reynaldo Cajucom. what we find in these yellow pads are stenographic notes. these were transcribed
by the stenographer who took down the stenographic notes, but for reasons not explained in the records, the transcript of the
notes (Exhibit "C"), which consists of twelve pages, 33 was not signed by the appellant since it does not indicate any jurat. On
the other hand, the same stenographic reporter, who took down the stenographic notes when accused Wilfredo Quiao was
being investigated by City Fiscal Balajadia, transcribed the notes, and the transcription 34 was subscribed and sworn to by the
accused before City Fiscal Balajadia and also signed by Atty. Cajucom, who represented the accused in the investigation.

Since we cannot even reads or decipher the stenographic notes in the yellow pads, we cannot expect the appellant,
who is a farmer and who reached only the fourth grade, to read or decipher its contents. We have to rely solely on the
transcript and presume its accuracy. A perusal of the transcript convinces us that the appellant was not given a fair
deal and was deprived of his rights under Section 12(1), Article III of the Constitution. Firstly, he was not fully and
properly informed of his rights. The transcript (Exhibit "C") shows the following preliminary questions of the City Fiscal
and the answers of the appellant:
01. QUESTION Mr. Jaime Agustin, I am informing you that
you are under investigation in connection
with the death of Dr. Nap Bayquen of which
you are one of the principal suspects. I am
informing you of your constitutional rights
before you give any statement. First, you
have the right to remain silent meaning, you
may give a statement or you may not give
any statement. If you will not give a
statement, you will not be forced to do so,
do you understand this right?
ANSWER I understand, sir.
02. Q If you will give a statement, you have the
right to be assisted by a lawyer of your own
choice, if you cannot afford to secure the
services of a lawyer the government will
provide a lawyer for you, do you understand
this right?
A I understand, sir.
03. Q Now, do you want to be assisted by a
lawyer?
A Yes, sir.
04. Q I am now informing you that a lawyer in the
person of Atty. Reynaldo Cajucom is now

present in this investigation room, do you


wish to avail of his assistance in connection
with this investigation?
A I want, sir.
05. Q I am also informing you that whatever you
say in this investigation can be used as
evidence in your favor and it can also be
used as evidence against you in any criminal
or civil case, do you understand that?
A Yes, sir, I understand.
06. Q After informing you of your constitutional
rights, are you now willing to give a
statement?
A Yes, sir, I agree.
Investigator Atty. Reynaldo Cajucom, the witness or
respondent Jaime Agustin has chosen you to
give him assistance in this investigation, are
you willing to assist him?
Answer I am willing, fiscal, to assist the witness.
Investigator Have you appraised [sic] him of his
constitutional rights?
Answer Yes, fiscal.
Investigator Do you know after examining him whether
or not he is giving a free and voluntary
statement of his own volition without any
intimidation or force exerted on him?
A As stated by him, fiscal, he is willing to give
a free and voluntary statement in relation to
what really happened.

It is at once observed that the appellant was not explicitly told of his right to have a competent and independent
counsel of his choice, specifically asked if he had in mind any such counsel and, if so, whether he could afford to hire
his services, and, if he could not, whether he would agree to be assisted by one to be provided for him. He was not
categorically informed that he could waive his rights to remain silent and to counsel and that this waiver must be in
writing and in the presence of his counsel. He had, in fact, waived his right to remain silent by agreeing to be
investigated. Yet, no written waiver of such right appears in the transcript and no other independent evidence was
offered to prove its existence.
Secondly, Atty. Cajucom can hardly be said to have been voluntarily and intelligently "accepted" by the appellant as
his counsel to assist him in the investigation. Atty. Cajucom's presence in the Office of the City fiscal at the time the
appellant was brought there for investigation is unclear to us. At least two possibilities may explain it: it was a mere
coincidence in the sense that he happened to be attending to some professional matter, or he was earlier called by
the City Fiscal for the purpose of giving free legal aid to the appellant. These possibilities are not remote but whether
it was one or the other, it is clear to us that Atty. Cajucom was in fact foisted upon the appellant, for as shown in the
above-quoted portion of Exhibit "C," the city fiscal immediately suggested the availability of Atty. Cajucom without first
distinctly asking the appellant if he had a counsel of his own choice and if he had one, whether he could hire such
counsel; and if he could not, whether he would simply exercise his right to remain silent and to counsel. In short, after
the appellant said that he wanted to be assisted by counsel, the City fiscal, through suggestive language, immediately
informed him that Atty. Cajucom was ready to assist him.
While it is true that in custodial investigations the party to be investigated has the final choice of counsel and may
reject the counsel chosen for him by the investigator and ask for another one, 35 the circumstances obtaining in the
custodial interrogation of the appellant left him no freedom to intelligently and freely do so. For as earlier stated, he was not
even asked if he had a lawyer of his own choice and whether he could afford to hire such lawyer; on the other hand, the city
Fiscal clearly suggested the availability of Atty. Cajucom. then too, present at that time were Capt. Antonio Ayat and Sgt.
Roberto Rambac, military officers of RUC I, who brought him to the City Fiscal's Office for investigation in the afternoon of the
day when he was unlawfully arrested in Sto. Tomas, Pangasinan. Along Kennon road, on the way to Baguio City, he was
coerced and threatened with death if he would not admit knowing "Jun" and "Sonny" and hi participation in the crime. This
testimony was unrebutted by the prosecution. The presence of the military officers and the continuing fear that if he did not
cooperate, something would happen to him, was like a Damocles sword which vitiated his free will.

Why it was the City Fiscal who had to conduct the custodial investigation is beyond us. Nothing in the records shows
that at that time the criminal cases against the culprits had already been filed with the City Fiscal's Office for

preliminary investigation and had, therefore, ceased to be a police matter. If they had been so filed, then the City
Fiscal should have followed the usual course of procedure in preliminary investigations. It appears, however, from the
informations in Criminal Cases Nos. 4647-R and 46648-R that it was Assistant City Fiscal Octavio M. Banta who
conducted the preliminary investigation and who prepared, signed, and certified the informations. city Fiscal Balajadia
merely approved them and administered the jurat in the certification. the conclusion then is inevitable that he did not
conduct the preliminary investigation.
Even assuming for the sake of argument that the appellant voluntarily agreed to be assisted by Atty. Cajucom, we
doubt it very much if he was an independent counsel. While we wish to give him the benefit of the doubt because he
is an officer of the court upon whose shoulders lies the responsibility to see to it that protection be accorded the
appellant and that no injustice be committed to him, 36 and, moreover, he generally has in his favor the presumption of
regularity in the performance of his duties, 37 there are special circumstances in these cases which convince us that he was
unable to assist the appellant in a satisfactory manner. For one, he admitted on cross-examination that at that time, and even
until the time he took the witness stand, he was an associate of the private prosecutor, Atty. Arthur Galace, in these and the
companion cases. Thus:

Q Mr. Witness, at the time you assisted the accused you belonged to the office of Atty. Galace, you were an associate
at the time when you assisted the accused?
A I was represented [sic] then as IBP Legal Aid.
Q The question is not answered, we are only requesting him if he was an associate of Atty. Galace up to the present?
A Yes. 38
Then we have misgivings on whether Atty. Cajucom was in fact understood by the appellant when the former
informed the appellant of his constitutional rights in English and Tagalog considering that the appellant, a fourth
grader and a farmer, could only understand Ilocano. Thus:
ATTY. TABIN:
So in other words when you appraised [sic] him of his constitutional rights using English Language and Tagalog
Dialect you did not have any Ilocano dialect Interpreter. . . .
xxx xxx xxx
WITNESS:
As far as I can remember, I explained it in Tagalog and English. 39
And when asked whether he was sure if the appellant understood him, Atty. Cajucom merely answered:
A At least I put everything as far as I could give to him to appraise [sic] him of his constitutional rights. 40

Then too, even if he were fully understood by the appellant, we are not satisfied that his explanations were adequate.
On direct examination, he gave the following answers:
Q Did you explain the constitutional rights of the accused to
caution him of the consequences of his statement?
A I explained to him that he has the right to remain silent, to
confront in person the witnesses against him and that he has
the right to choose a counsel to assist him in the hearing of
the case which was being investigated then.
Q And what was his reply regarding the consequences of this
statement?
A He told me that he is willing to give a truthful statement and
in order to shed light. 41
It appears to us that Atty. Cajucom did not actually impress upon the appellant that he was one of the accused; rather,
Atty. Cajucom made the appellant believe that he was only a witness. Thus:
Q [by the prosecutor]
But, nevertheless, you gave the precautionary measure
entitled to any witness?
A Yes, sir.
Q Why do you say that it was given voluntarily?
A Before presenting him to the investigation we were given
time to talk personally without any other people and that
was the time that I explained to him all his rights and
consequences pertaining to him as witness to this case. 42
On cross-examination, Atty. Cajucom also declared:
ATTY. TABIN:
That is why I am requesting him how he explained in that language, Your Honor.
WITNESS:
I told him that this is a grave case which he would be giving some narrations as a witness and his involvement would
mean the most grievous offense and if found guilty will bring him for some years in jail and I told him that I could help

him if he will be presenting the truth and narrate is the truth. This is in combination, English and Tagalog, and most of
the time, I made it in Tagalog. 43
Moreover, considering that the appellant is familiar only with Ilocano, the Court has serious doubts about his ability to
understand Atty. Cajucom's explanation of his constitutional rights since Atty. Cajucom did so in English and Tagalog.
Finally, Atty. Cajucom knew, as admitted by him on cross-examination, that the appellant was picked up on 10
February 1987 by military men in Pangasinan without a warrant for his arrest. 44 Since the crimes with which the
appellant was charged were allegedly committed on 6 September 1986 or more than five months earlier, no arrest without a
warrant could have been legally and validly effected. a warrantless arrest should comply with the conditions prescribed in
Section 5, rule 113 of the Rules of Court. Said section provides:

Sec. 5. Arrest without warrant when lawful. A peace officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from
one confinement to another.
None of these exceptional circumstances were present at the time the appellant was arrested on 10 February 1987.
The prosecution did not even insinuate that the crimes were committed in the presence of the arresting officers (for
otherwise they could have arrested the appellant on 6 September 1986 yet) or that the appellant was a prisoner who
had escaped from his place of detention; or that the crimes had just been committed for they were in fact committed
more than five months earlier. Atty. Cajucom knew or ought to have known that the arrest was unlawful. If he were
then truly moved by his duty to fully assist the appellant, he should have forthwith taken the appropriate measures for
the immediate release of the appellant instead of allowing the City Fiscal to investigate him. Needless to say, the
conduct of Atty. Cajucom under the circumstances only strengthen our belief that the appellant had all the cards
stacked against him.
Thus, we do not hesitate to declare the appellant's extrajudicial statement inadmissible in evidence because it was
obtained in violation of Section 12 (1), Article III of the Constitution. since it is the only evidence which links him to the
crimes of which he was convicted, he must then be acquitted.

His acquittal must not write finis to these murder cases. These crimes must be solved and the triggerman and the
mastermind apprehended. We see in these cases the failure of the Government to exert the necessary efforts to bring
the guilty parties to the bar of justice. Until now, the accused, who were implicated by the triggerman as having
ordered for a price the murder of Dr. Bayquen, remain at large and the records do not show any diligent effort to effect
their arrest. The triggerman escaped while in the custody of the PC/INP at Camp Dangwa. The City Prosecutor's
Office of Baguio City should then use all the resources at its command, in coordination with the law-enforcement
agencies of the Government, such as the National Bureau of Investigation and the Philippine National Police, to
immediately arrest the other accused.
WHEREFORE, judgment is hereby rendered REVERSING the challenged judgment of the Regional Trial Court,
branch 3, Baguio City, in Criminal Case No. 4647-R and Criminal Case No. 4648-R, and ACQUITTING appellant
JAIME "JIMMY" AGUSTIN. His immediate release from confinement is hereby ORDERED unless for some other
lawful cause his continued detention is warranted.
Costs de oficio.
SO ORDERED.

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G.R. No. 89823


June 19, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EUTROPIO TIOZON y ACID, accused-appellant.
The Solicitor General for plaintiff-appellee.
Lorenzo G. Parungao for accused-appellant.

DAVIDE, JR., J.:


In an information filed by the Asst. City Prosecutor of Caloocan City on 27 February 1989 with Branch 131 of the
Regional Trial Court (Caloocan City) of the National Capital Judicial Region, accused-appellant was charged for
violation of Presidential Decree 1866, as amended, committed as follows:
That on or about the 24th day of February 1989 in Kalookan City, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, without any lawful motive or purpose, did then and there wilfully,
unlawfully and feloniously have in his possession, custody and control one .38 cal. revolver, marked Squires Bingham
with SN 180169 with three live ammunitions without authority of law, which firearm was used with treachery and
evident premeditation in shooting one Leonardo Bolima y Mesia, which caused death.1
Accused-appellant pleaded not guilty when arraigned on 15 March 1989.2 Pre-trial was conducted and thereafter the
trial court received the evidence for the parties.
In a decision promulgated on 30 June 1989,3 the court a quo found accused-appellant guilty and sentenced him as
follows:
WHEREFORE, in view of all the foregoing, the court finds the accused EUTROPIO TIOZON y ACID guilty beyond
reasonable doubt of the crime of P.D. 1866 and Murder qualified by treachery and hereby sentences him to suffer life
imprisonment; to indemnify the heirs of the deceased Leonardo Bolima the sum of P30,000.00; to reimburse the heirs
of the victim the sum of P50,000.00 as reasonable expenses for the wake and burial expenses and to pay the costs.
According to the trial court, were it not for its abolition, "the death penalty, the sentence imposable under 2nd pa.,
Section 1 of P.D. 1866, as amended", should have been imposed.
On 5 July 1989 Accused-appellant filed a motion to reconsider the decision4 which, however, was denied by the court
in its order of 16 August 1989.5 On 17 August accused-appellant filed a Notice of Appeal.6 Hence, the case is now
before Us.

The facts as found by the court a quo are as follows:


That at around 11:00 o'clock in the evening of February 24, 1989, while she and her husband were sleeping inside
their house, they were awakened by the loud knocks on their door; Her husband opened the door and they saw that
the person who was knocking was their "Pareng Troping", accused herein; her husband invited the accused, who
appeared to be very drunk, to come inside their house; once inside their house, accused sat down and the two
(accused and victim) exchanged pleasantries; she even saw the accused showing a gun to her husband and the
latter even toyed with it; she got irritated by her husband's playing with the gun, so she took a few steps away from
the two, however, when she looked back to the place where her husband and the accused was, she found out that
the two had already left; five minutes later and/or after she had heard two successive gunshots, she heard accused
knocking at their door and at the same time informing her that he accidentally shoot (sic) her husband, "Mare, mare,
nabaril ko si Pare, hindi ko sinasadya" she got scared by the appearance of the accused who was full of bloodstains
so she pushed him away from her; she immediately went to her sister-in-law Marilyn Bolima and both of them
proceeded to the house of the accused; thereat, they saw the victim lying with his face up; she took her husband's
pulse and when she still felt some warmth on his body, she sought help that her husband be brought to the hospital;
accused extended his help by helping them in carrying the victim towards the main road, however, after a few steps,
he changed his mind and put down the victim; accused reasoned out that the victim was already dead; she pushed
the accused and even without the latter's help, they were able to reach the main road; afterwhich, some of her
neighbors arrived bringing with them lights; thereafter, Kalookan policemen arrived and so she caused the arrest of
the accused; she spent about P100,000.00 in connection with burial and wake of her husband.
Pat. Orlando Valencia of the Kalookan Police Force on the witness stand testified that on February 24, 1989 in line
with his duty as policemen, a shooting incident was reported to him; he responded to the said report by proceeding to
the crime scene, thereat, he saw the lifeless body of the victim as well as the accused whose clothing was full of
bloodstains; the cadaver of the victim was referred to the Philippine Constabulary Crime Laboratory (PCCL) while the
person of the accused was turned over to the Homicide Section of the Kalookan City Police Station; the day after, at
around 10:00 o'clock in the evening and upon instruction of Pfc. Alilam he together with some Kalookan policemen
accompanied the accused in retrieving the firearm (Exh. "F") whom the accused threw at the grassy area particularly
at the back of the latter's house; aside from the firearm they also recovered two (2) spent bullets (Exh. G-6 and G-7)
and three live ammunitions (Exh. G-12, G-13 and G-14).

NBI Ballistician Ernie Magtibay testified that he has been a ballistician of the NBI since 1984; that pertinent to this
case, he happened to examine a caliber .38 Squires Bingham with serial number 180169 (Exh. "F"); that as per his
findings the evidence shells (Exhs. G-6 and G-7) were fired from the gun, subject matter of this case.
Forensic chemist from the NBI Edwin Purificando testified that the paraffin test he conducted on the dorsal aspect of
the left and light hands, that is, from the wristbones to the fingertips, of the deceased, gave negative result on the
presence of nitrates (Exh. "I"). Likewise, the paraffin test he conducted on the dorsal aspects of the left hand and right
hand of the accused yielded negative results on the presence of nitrates (Exh. "J").
On the other hand, the version of the defense as testified to by the accused is as follows:
That at about 11:30 in the evening of February 24, 1989 accused on his way home, after coming from his work,
passed by the house of his Pareng Nardo, the victim herein; while passing infront of the said house, his Pareng
Nardo called him up; when he was about to enter the door of the house of the victim, the latter, from the back of the
door, poked a gun at him; he grabbed the gun from his Pareng Nardo and at that instance, Rosalina Bolima emerging
from her room, saw him holding the gun; he returned the gun to his Pareng Nardo and the latter tucked it in his
waistline; he was served with a beer and after he and the victim consumed about two bottles of beer, they went out to
buy some more; after they were able to buy some more bottles of beer, victim carried the same and left ahead of the
accused; accused was left behind to answer the call of nature; while in the act of urinating, he heard two successive
gunshots; he followed the victim and he saw the latter already sprawled on the ground; he inquired from his Pareng
Nardo as to what had happened to him, "Pareng Nardo, ano ang nangyari sa iyo? and the victim's replied (sic) was
"Pare, binaril ako", he further inquired as to who shot him but the victim who was gasping for breath could no longer
talk; thereafter, he saw a gun near the body of his Pareng Nardo; moved by his desire to bring the said gun to the wife
of the victim, he picked the same, but after he got hold of the gun, he suddenly realized that the policemen might see
him holding it, so he threw the very same gun to the grassy area; he then ran towards the house of the victim and he
informed the wife of the latter that his Pareng Nardo was shot to death; he returned to the place where he left the
body of the victim but the body of the latter was no longer there; he later found out that townspeople carried the body
of the victim towards the main road; when the policemen arrived he was ordered to go with them at the Kalookan
Police Headquarters; when he was asked by the policemen as to who shoot (sic) the victim, his answer was, he did
not see the actual shooting incident; never did he declare nor utter before her Mareng Lina or before any police
authorities that he accidentally shoot (sic) the victim. However, he admitted that it was him who accompanied the
policemen in retrieving the fatal gun at the grassy area at the back of his house.

In holding the accused-appellant guilty as above-stated, the court a quo relied on circumstantial evidence because
the prosecution failed to present an eyewitness who could give an account as to the actual shooting incident. It
considered the following circumstances which it deemed sufficient to convict the accused-appellant pursuant to Rule
133, Section 5, of the Revised Rules of Court:
The following are among the circumstances which points to the culpability of the accused.
1) That the widow of the victim saw the accused holding a gun immediately before shooting incident happened;
2) That accused was the last person seen in the company of the victim immediately before the latter was shot to
death;
3) That it was the accused who purposely went to the house of the victim on that fatal evening; The testimony of the
accused that he was merely passing in front of the house of the victim when the latter who was standing at the
window of his house called him up is less credible than the testimony of the widow of the victim, that they were
already aslept (sic) inside their house when or the aforesaid time accused knocked at their door.
4) That it was the accused who guided the policemen as to the place where the fatal gun was recovered. Here the
Court believes that the gun was purposely hid at the grassy area at the back portion of accused's house. The story of
the accused that he picked the gun for the purpose of bringing it to the widow of the victim but for fear that the
policemen might see him holding the gun, he then decided to throw it to the place where it was recovered, was too
flimsy to merit belief. Firstly, what is his reason for bringing it to the widow of the victim when he surely knew fully well
that it will be the policemen who will investigate the case. Secondly, he knew for a fact, that the said gun could lead
as to the identity of the assailant of the victim, why then he threw it at the grassy area when he could easily leave the
same to the place where he picked it up.
5) The testimony of the wife that after hearing two successive gunshots, accused went back to her house and
informed there (sic) that he accidentally shot her husband deserves merit, Besides, the Court sees no reason for the
wife to concoct such story that would point to the accused as the culprit specially so that had not the accused became
(sic) the prime suspect in this case, he would be the best person to be used as a prosecution witness, with more
reason that from the evidence presented, it appears that the widow of the victim harbours no ill-feeling towards the
accused otherwise, she would have prevented accused accused's entry in her house on that fatal evening.
6) The testimony of the wife that accused, immediately after the shooting incident took place admitted to her having
accidentally shoot (sic) the victim is admissible evidence against the accused declarant since this is covered by the
rule on res gestae or one of an exception to the hearsay rule.

Part of the res gestae Statement made by a person while a startling occurrence is taking place or immediately prior
tor (sic) subsequent thereto with respect to the circumstance thereof, may be given in evidence as a part of res
gestae . . . (Sec. 36, Rule 130, Revised Rules of Court, as amended).
7) The testimony of the accused that he does not own the gun and that it is but (sic) the accused (sic) who owns the
same and in fact the latter even tucked it in his waistline immediately before the shooting incident happened is
improbable, for, how come then that the assailant was able to drew (sic) the gun from the waistline of the victim and
fired (sic) the same towards the back portion of the victim's body. Is it not that the natural reaction of a person was to
face the person who suddenly and without permission drew something from one's waistline. (sic)
While there is no eyewitness who testified to having seen accused shoot (sic) the victim, yet all the foregoing
circumstances meet the criteria set by Sec. 5, Rule 133 of the Revised Rules of Court, as amended, and therefore
points (sic) to the accused as the person who unlawfully owns the fatal gun as well as the same person who shoot
(sic) to death the victim. "Circumstantial (sic) evidence is admissible in the absence of an eyewitness to the
commission of the crime" (People vs. Albofera, 152 SCRA 125 [1983]).
The Court does not give credence to the denial of the accused that he was not the one who shoot (sic) the victim as
he was some distance away from the victim answering the call of nature when the victim was killed. Instead, the
Court gives credence to the testimony of the widow that it was the accused whom he saw in possession of the gun,
that it was the accused who was the last person seen in the company of the victim shortly before the latter died and it
was the same accused who lead (sic) the policemen in retrieving the fatal gun.
Admittedly, as per findings of the NBI Forensic Chemist, the accused's right and left hand yielded negative result to
the test of nitrates. However, the same witness testified that even when a person fired gun, it does not necessarily
follows (sic) that his hand would be positive to the test of nitrates, as there are still several factors which affects the
presence or absence of nitrates in the hands of a person.
xxx
xxx
xxx
Although the fact of death of the victim (Exh. "E") is undisputed, still the presence of the qualifying circumstance of
treachery and evident premeditation being alleged in the Information, must be proven like the crime itself.
To properly appreciate evident premeditation it is necessary to establish with proof, as clear as the evidence of the
crime itself (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the
culprit had clung to his determination; and (3) a sufficient lapse of time to reflect upon the consequence of his act
(People vs. Lorenzo, 132 SCRA 17 (1984); People vs. Obengue, 147 SCRA 1987). Although alleged in the

Information, the record of this case is bereft of any indication that evident premeditation attended the killing of the
victim.
However, the qualifying circumstance of treachery is appreciated in this case since its presence could be established
by the position/location of the wound of the victim, that is at the back portion of his torso which necessarily imply that
he was treacherously shot by his assailant.7
Accused-appellant assigns only one error in this appeal:
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF
ILLEGAL POSSESSION WITH MURDER AS DEFINED UNDER SECTION 1 OF P.D. 1866. THE CIRCUMSTANTIAL
EVIDENCES RELIED UPON BY THE TRIAL COURT IN ITS JUDGMENT OF CONVICTION ARE INSUFFICIENT
TO PROVE BEYOND REASONABLE DOUBT THE GUILT OF ACCUSED-APPELLANT.8
and prays that the decision appealed from be reversed and another be entered acquitting him.
In support of the assigned error accused-appellant submits that:
(a) Contrary to the conclusion of the trial court, he was not the one holding the gun immediately before the shooting
incident, for as admitted by the victim's wife, her husband also "toyed or played with the gun;9
(b) The testimony of the victim's wife that he was the last person seen in the company of the victim is unrealiable
because she was left in the house when the victim and accused-appellant went out to the store which is about 145 to
150 meters away;
(c) That the accused-appellant pointed the place where the gun allegedly used in the killing was recovered, should
not create the unfavorable inference that he purposely hid the gun and should not be taken against him, for knowing
the reputation of police authorities, what he did was dictated by the instinct of self-preservation rather than guilt;
(d) The testimony of the wife of the victim that after hearing two successive gunshots accused-appellant went back to
her house and informed her that he accidentally shot her husband, should not have been considered by the trial court
as part of the res gestae; and
(e) The "raciocination" of the trial court regarding the improbability of the testimony of accused-appellant that he does
not own the gun but that it was the deceased who owned it which the latter tucked in his waistline before the shooting
incident is baseless as the records show that the deceased was walking ahead of the accused-appellant who was left
behind to answer a call of nature; therefore, it is not highly improbable that some other person whom the deceased
might have met in the street could have taken the gun from the waistline and shot him with it. It would not also be
highly improbable that a person from whose waistline a gun was grabbed could not face his assailant especially when
he is carrying something with his both hands, like the deceased who was carrying one case of Gold Eagle beer when

he was shot at. Moreover, accused-appellant was found negative for nitrates when a paraffin test was conducted on
him by a forensic chemist of the NBI.10
The People, in its Brief filed by the Solicitor General on 18 April 1990, disagrees with the accused-appellant,
maintains that the prosecution was able to establish his guilt beyond reasonable doubt, and prays that subject
decision be affirmed in toto. It stresses that accused-appellant himself admitted and confirmed that he and the victim
went out together to buy some more bottles of beer; he was with the victim after they bought the beer, and they
separated only when he had the urge to urinate seconds before the incident. The widow did not testify that she saw
what happened in the street; what she testified was that the accused and the victim went out together and five
minutes later she heard two shots. There was, therefore, nothing improbable about her testimony.
Appellee likewise contends that the conclusion of the trial court on the hiding of the gun was based on the evidence
on record; the accused himself testified that he threw the gun on a grassy area. It further argues that the conclusion
of the court on the improbability of appellant's testimony concerning the ownership of the gun is not baseless; on the
contrary, it is the theory of the appellant that it is probable that another person may have grabbed the gun from the
victim that is highly improbable. Since appellant was behind the victim he could have seen a third person grabbing the
gun. He did not testify that he saw one. The negative result of the paraffin test cannot be singled out to absolve the
accused-appellant from liability.11
No Reply-Brief was filed.
We are now called upon to determine whether, on the basis of the evidence adduced, the judgment appealed from
should be affirmed or the accused-appellant be acquitted.
We shall first focus our attention on the law under which accused-appellant is indicted.
Section 1 of P.D. No. 1866 imposes the penalty of reclusion temporal in its maximum period to reclusion perpetua
"upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm,
ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition." It goes further by providing that "if homicide or murder is committed with the use of an unlicensed
firearm, the penalty of death shall be imposed."
It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1 because it is a
circumstance which increases the penalty. It does not, however, follow that the homicide or murder is absorbed in the
offense; otherwise, an anomalous absurdity results whereby a more serious crime defined and penalized in the
Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum. The rationale for the
qualification, as implied from the exordium of the decree, is to effectively deter violations of the laws on firearms and

to stop the "upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed
and manufactured firearms, . . . " In fine then, the killing of a person with the use of an unlicensed firearm may give
rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248
(Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one as a bar to the other;
or, stated otherwise, the rule against double jeopardy cannot be invoked because the first is punished by a special
law while the second, homicide or murder, is punished by the Revised Penal Code.
In People vs. Domiguez,12 We held:
It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or identical
offenses. A simple act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one
provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a
dismissal of the information under one does not bar prosecution under the other. Phrased elsewise, where two
different laws (or articles of the same code) defines two crimes, prior jeopardy as to one of them is no obstacle to a
prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act
which is not an essential element of the other.13
In People vs. Bacolod, supra., from the act of firing a shot from a sub-machine gun which caused public panic among
the people present and physical injuries to one, informations for physical injuries through reckless imprudence and for
serious public disturbance were filed. Accused pleaded guilty and was convicted in the first and he sought to dismiss
the second on the ground of double jeopardy. We ruled:
The protection against double jeopardy is only for the same offense. A simple act may be an offense against two
different provisions of law and if one provision requires proof of an additional fact which the other does not, an
acquittal or conviction under one does not bar prosecution under the other.
Since the informations were for separate offense the first against a person and the second against public peace
and order one cannot be pleaded as a bar to the other under the rule on double jeopardy.
However, to justify the imposition of the increased penalty under Section 1 of P.D. No. 1866 because of the resulting
crime of homicide or murder, the prosecution must allege in the information and prove by the quantum of evidence
required for conviction violation of said section and, more specifically, the use of an unlicensed firearm and the
commission of homicide or murder. In this regard, the information in this case is sufficient in form and substance. It
alleges illegal possession of a firearm and of murder, The latter is covered by the clause "which firearm was used with
treachery and evident premeditation in shooting one Leonardo Bolima y Mesia, which caused his death.

We agree with the findings and conclusion of the court a quo that more than one circumstantial evidence were duly
proved and that these circumstances point, beyond reasonable doubt, to the accused-appellant as the one who shot
and killed the deceased Leonardo Bolima y Mesia. For circumstantial evidence to be sufficient to convict an accused,
it is necessary that the following requisites must be satisfied: (a) there must be more than one circumstance, (b) the
facts from which the inferences are derived are proven, and (c) the combination of all the circumstances is such as to
produce a conviction beyond a reasonable doubt.14 Or, as jurisprudentially formulated, a judgment of conviction based
on circumstantial evidence can be upheld only if the circumstances proven constitute "an unbroken chain which leads
to one fair and reasonable conclusion which points to the defendant, to the exclusion of all others, as the guilty
person,15 i.e., the circumstances proved must be consistent with each other, consistent with the hypothesis that the
accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty.16
The first to the sixth circumstances mentioned by the trial court were duly established and constitute an unbroken
chain which leads to one fair and reasonable conclusion that the accused-appellant, and no other else, shot and killed
the victim. We do not, however, agree with the additional observation of the trial court, in respect to the sixth
circumstance, that the statement made by the accused-appellant to the wife of the victim immediately after the
shooting incident that he accidentally shot the victim is covered by the rule on res gestae. This is a misapplication of
the rule in the instant case. Statements as part of the res gestae are among the exceptions to the hearsay rule. The
rule is that a witness "can testify only to those facts which he knows of or his own knowledge; that is, which are
derived from his own perceptions.17 Accordingly, a testimony of a witness as to what he heard other persons say about
the facts in dispute cannot be admitted because it is hearsay evidence. There are, however, exceptions to this rule.
One of them is statements as part of the res gestae under Section 36 of Rule 130 of the Revised Rules of Court. The
exceptions assume that the testimony offered is in fact hearsay; but it is to be admitted in evidence. Under the
aforesaid Section 36, statements may be deemed as part of the res gestae if they are made by a person while a
startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances
thereof. Statements accompanying an equivocal act material to the issue and giving it a legal significance may also
be received as part of the res gestae.
In the instant case, however, the questioned testimony of the wife of the victim is not hearsay. She testified on what
the accused-appellant told her, not what any other party, who cannot be cross-examined, told her. The accusedappellant's statement was an "oral confession", not a part of res gestae, which he can easily deny if it were not true,
which he did in this case.

In People vs. Tulagan, 143 SCRA 107,116-117, We declared that a statement allegedly made by one of the accused
to Natalia Macaraeg that "we killed him" (referring to himself and his co-accused) and which Natalia repeated in her
testimony in open court was merely an "oral confession" and not part of the res gestae.
Moreover, even assuming that the testimony of the wife of the victim on the alleged statement of the accusedappellant is hearsay, the latter is barred from questioning its admission due to his failure to object thereto at the time
the testimony was given. The transcript of the stenographic notes of the testimony of Rosalina Magat vda. de Bolima,
wife of the victim, clearly shows the absence of an objection, thus:
Atty. Villano:
You said when you turned your back after taking a few steps and when you turned your back, they were no longer
there, will you please tell what happened after that?
A And that was when they left it was 11:30 and when he came back 11:35 he was already knocking (referring to the
person of the accused) telling me while he was knocking: "Mare, mare nabaril ko si pare, hindi ko sinasadya."
Q By the way Mrs. Witness, who is that "pare" you are telling us?
A Troping, sir (as the witness pointed to).
Q The same Troping here, is your "kumpare"?
A Yes, sir.
(TSN, April 18,1989, p. 13).
The seventh circumstance mentioned by the court below is haphazardly formulated. Something is wrong with the
opening clause reading:
The testimony of the accused that he does not own the gun and that it is but the accused who owns the same and in
fact the latter even tucked it.
The words but the accused should have been the deceased.
Two more basic issues are left for determination, to wit: whether the prosecution has established beyond reasonable
doubt that the accused is liable for illegal possession of firearms and whether the killing was attended by the
qualifying circumstances of treachery and evident premeditation as alleged in the information.
Our painstaking review of the records and the evidence fails to disclose that the prosecution presented any evidence
to prove that the accused-appellant was not authorized to possess the firearm alleged in the information. And,
contrary to the finding of the trial court, there was no sufficient evidence to prove the presence of treachery.
It must be stated, however, that had illegal possession of firearms been duly proven as alleged, it would not have
mattered whether the killing was simple homicide or murder since Section 1 of P.D. No. 1866 expressly provides that:

xxx
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xxx
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.
which penalty, however, had been automatically reduced to reclusion perpetua in view of the abolition of the death
penalty.18
The issue concerning the failure of the prosecution to prove that he had no authority to possess the firearm has not
been raised in this appeal. Interestingly, accused-appellant raised it in his motion to reconsider the decision of the trial
court.19 In its resolution denying the motion, the trial court admitted, in effect, that the prosecution did not offer any
evidence to prove that the accused-appellant had no license to possess or carry the firearm in question; it however,
threw the burden on the accused-appellant to prove that he has that authority. Thus, it ruled:
Where accused relies as a matter of defense on an exception in a statute which is not in the enacting clause by which
the offense is described and forbidden, he has the burden of proving that he is within the exception.
Where the subject matter of a negative averment in the information, or a fact relied upon by defendant as a
justification or excuse, relates to him personally or otherwise lie peculiarly within his knowledge, the general rule is
that the burden of proof of such averment or fact is on him (16 C.J. sec. 998, p. 530). An illustrative case of this rule
may be found in prosecution for exercising a trade or profession, or doing other acts, without a license. In such cases,
it would greatly inconvenience the prosecution to prove that the defendant had no license, whereas the defendant
could easily prove that he did have one.
In cases of illegal possession of firearms, the burden of proof as to the negative averments in the information to the
effect that the accused possesses the firearms without the corresponding license is on the defense. It is the accused
who is called upon to prove that he possesses the license. In other words, the fact relied upon by the accused as a
justification or excuse being one that is related to him personally or otherwise within his peculiar knowledge, "the
general rule is that the burden of proof as to such averment or fact is on the accused" (Francisco, Handbook on
Evidence, pp. 379-380, 1984 Ed., citing cases).20
Section 1 of P.D. No. 1866 reads:
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 reclusion
temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.

xxx
xxx
xxx
The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his
residence without legal authority therefor.
Undoubtedly, there is unlawful possession under the foregoing section if one does not have the license to possess
the firearm. Even if he has the license, he cannot carry the firearm outside his residence without legal authority
therefor. It follows then that the lack or absence of a license is an essential ingredient of the offense which the
prosecution must allege and prove. Every element of the crime must be alleged and proved.21
In People vs. Pajenado, L-27680-81, 27 February 1970,22 We said:
It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to support the
view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a
license to possess the firearm, but we are of the considered opinion that under the provisions of Section 2, Rule 131
of the Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the
prosecution and that a negative fact alleged by the prosecution must be proven if "it is an essential ingredient of the
offense charged", the burden of proof was with the prosecution in to case to prove that the firearm used by appellant
in committing the offense charged was not properly licensed.
It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession
of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No.
27681) specifically alleged that he had no "license or permit to possess" the .45 caliber pistol mentioned therein. Thus
it seems clear that it was the prosecution's duty not merely to allege that negative fact but to prove it. This view is
supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with "having
criminally inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It was
there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged
and should be proved by the prosecution. In another case (People vs. Quebral, 68 Phil. 564) where the accused was
charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases
suffered by certain patients from whom he received monetary compensation, without having previously obtained the
proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the
Administrative Code, this Court held that if the subject of the negative averment like, for instance, the act of voting
without the qualifications provided by law is an essential ingredient of the offense charged, the prosecution has the
burden of proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under
such circumstance, need only establish a prima facie case from the best evidence obtainable. In the case before Us,

both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold
appellant guilty of the illegal possession of a firearm. Former Chief Justice Moran upholds this view as follows:
The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not
relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must
be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of
this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a
license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact?
Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by
the defendant, it is nevertheless, incumbent upon the party alleging the want of the license to prove the allegation.
Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the
accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him. (6 Moran,
Comments on the Rules of Court, 1963 edition, p. 8).
There being no proof that accused-appellant had no license to possess the firearm in question, he could not be
convicted for illegal possession of a firearm. The trial court then committed an error in holding the accused-appellant
guilty thereof. However, as above-stated, the accused-appellant did not touch this issue in his Brief. Be that as it may,
the rule is well-settled that an appeal in a criminal case opens the whole case for review and this includes the review
of the penalty, indemnity and the damages involved.23
In People vs. Borbano, 76 Phil. 702, 708, We ruled:
. . . In a criminal case, an appeal to the Supreme Court throws the whole case open for review, and it becomes the
duty of the Court to correct such errors as may be found in the judgment appealed from, whether they are made the
subjects of assignments of error or not. (People vs. Ofindo, 47 Phil. 1).
Accordingly, it is proper for this Court to consider in favor of the accused-appellant the absence of proof of illegal
possession of a firearm. But, may accused-appellant be convicted for murder under the information for which he was
tried? The answer is in the affirmative since, as We stated earlier, the information sufficiently alleges the commission
of murder; hence, a conviction for murder, if warranted by the facts, can be had under the information.24 If murder is
not proved by reason of the absence of any qualifying circumstance, conviction for the lesser crime of homicide is
also proper.25
We are also unable to agree with the trial court that the qualifying circumstance of treachery was duly established.
There is treachery when the offender commits any of the crimes against persons employing means, methods or forms
in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the

defense which the offended party might make, which means that no opportunity was given to the latter to do so.26 It
cannot be presumed; it must be proved by clear and convincing evidence or as conclusively as the killing itself.27 For,
as held in U.S. vs. Perdon28 where no particulars are known as to the manner in which the aggression was made or
how the act which resulted in the death of the victim began and developed, it can in no way be established from mere
suppositions, drawn from circumstances prior to the very moment of the aggression, that an accused perpetrated the
killing with treachery.29 Accordingly, treachery cannot be considered where the lone witness did not see the
commencement of the assault.30
In People vs. Manalo, supra, We ruled:
The fact that the fatal wounds were found at the back of the deceased does not, by itself, compel a finding of
treachery. Such a finding must be based on some positive proof and not merely an inference drawn more or less
logically from hypothetical facts. This Court has ruled that the suddenness of an attack is not, of itself, enough to
constitute treachery when the method of the killing does not positively show that the assailant thereby knowingly
intended to ensure the accomplishment of his purpose without risk to himself from any defense which the victim might
put up. In other words, to sustain a finding of treachery, the means, method or form of attack must be shown to have
been deliberately adopted by the appellant. (citing People vs. Carsano, 95 SCRA 146; People vs. Cabiling, 74 SCRA
185; People vs. Satone, 74 SCRA 106; People vs. Bongo, 55 SCRA 547).
In People vs. Ablao, 183 SCRA 65, 669, We said:
There being no direct evidence on how the shooting was committed, treachery cannot be appreciated.
In the instant case, no witness who could have seen how the deceased was shot was presented. Absent the
quantum of evidence required to prove it, treachery cannot be considered against the accused-appellant.
Accordingly, accused-appellant could only be liable for HOMICIDE, which is punished by RECLUSION TEMPORAL.
It shall be imposed in its medium period, whose duration is from 14 years, 8 months and 1 day to 17 years and 4
months, since neither aggravating nor mitigating circumstances had been proved.31
The Indeterminate Sentence Law benefits the accused-appellant. Applying it in this case, he may be sentenced to
suffer an indeterminate penalty of eight years and one day of prision mayor, as minimum, to fourteen years, eight
months and one day of reclusion temporal as maximum.
The civil indemnity imposed by the trial court should be increased from P30,000.00 to P50,000.00 conformably with
our ruling in People vs. Sison, G.R. No. 86455, 14 September 1990 and in People vs. Sazon, G.R. No. 89684, 18
September 1990.
1wphi1

WHEREFORE, judgment is hereby rendered MODIFYING the subject decision of the trial court, and as Modified,
FINDING the accused-appellant EUTROPIO TIOZON Y ACID guilty beyond all reasonable doubt of the crime of
HOMICIDE, as defined and penalized under Article 249 of the Revised Penal Code, for the killing of Leonardo Bolima,
and applying the Indeterminate Sentence Law, he is hereby SENTENCED to suffer an indeterminate penalty of
imprisonment ranging from EIGHT YEARS AND ONE DAY of prision mayor, as Minimum, to FOURTEEN YEARS,
EIGHT MONTHS AND ONE DAY of reclusion temporal as Maximum, with the accessory penalties therefor, to
INDEMNIFY the heirs of Leonardo Bolima in the sum of FIFTY THOUSAND PESOS (P50,000.00), without subsidiary
imprisonment in case of insolvency, and to REIMBURSE said heirs in the sum of FIFTY THOUSAND PESOS
(P50,000.00) as reasonable expenses for the wake and burial of Leonardo Bolima.
Accused-appellant shall be given full credit for the period of his preventive imprisonment.
Costs against accused-appellant.
SO ORDERED.

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G.R. No. 66034 November 13, 1992


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOVITO TUJON y TAPEL, ERNESTO PAROLA y CORTINA, AND CESAR PAREDES @ Cesar (at large), accused
JOVITO TUJON y TAPEL, accused-appellant.
BIDIN, J.:
This is an appeal interposed by the accused-appellant Jovito Tujon from the decision of the Court of First Instance of
Rizal, Seventh Judicial District, Quezon City, Branch XVII, in Criminal Case No. Q-8808 finding him and Ernesto
Parola guilty of the crime of Robbery with Homicide, defined and penalized under Article 294, paragraph 1 of the
Revised Penal Code as amended and sentencing them to suffer the penalty of reclusion perpetua, with the accessory
penalties prescribed by law.
The dispositive of the said decision reads:
WHEREFORE, judgment is hereby rendered, finding Jovito Tujon and Ernesto Parola guilty beyond reasonable doubt
of the crime of Robbery with Homicide, described and penalized under Article 294, par. 1 of the Revised Penal Code
as amended. There being no modifying circumstance attending the commission of the crime, the said accused are
sentenced to the penalty of reclusion perpetua, with the accessory penalties prescribed by law, to pay jointly and
severally, the heirs of the deceased Rolando Abellana the amounts of P18,000.00 representing indemnification for
death and P180.00 representing the money stolen, without subsidiary imprisonment in case of insolvency and to pay
the proportionate cost.
IT IS ORDERED. (Rollo., p. 9)
The aforesaid judgment as to accused Ernesto Parola has not yet been promulgated by the court a quo since the said
accused escaped after arraignment and has not been re-arrested to date. Accused Cesar Paredes, on the other
hand, remains at large and does not appear to have been arraigned before the trial court.
The antecedent facts of the case are as follows:
On November 3, 1977, the dead body of Rolando Abellana, a taxi driver, was found at Doa Faustina Village, Quezon
City, with stab wounds. Dr. Rolando Madrid, Medico-Legal Officer of the NBI, conducted an autopsy on the corpse
and found that the cause of death is hemorrhage, acute, profuse, secondary to multiple stab wounds on the chest and
neck.

On November 23, 1977, accused Jovito Tujon and Ernesto Parola were arrested by the police and turned over to the
Criminal Investigation Division, Quezon City Police Department, where they allegedly confessed to the commission of
the crime.
On December 1, 1977, an information was filed by Assistant Fiscal Jesus T. Baldonado before the Court of First
Instance of Rizal, Seventh Judicial District, Quezon City, charging the accused of robbery with homicide having been
committed as follows:
That on or about the 3rd day of November, 1977 in Quezon City, Philippines, the above-named accused, with intent of
gain, by the use of violence and intimidation, conspiring with, confederating together and mutually helping one
another, with co-accused, ANTONIO MENA Y BALDESIMO, a minor who is also charged with the same offense in the
Juvenile and Domestic Relations Court, Quezon City, did, then and there wilfully, unlawfully and feloniously rob one
ROLANDO ABELLANA Y FABROA, a taxi driver of EH taxi in the following manner, to wit: on the date and in the
place aforementioned, said accused pursuant to their conspiracy boarded the taxicab and thereafter, the abovenamed accused, armed with a (sic) knives and pointed their knives to the said victim, who struggled and in the course
of struggle was stabbed at the chest and neck, thereby inflicting upon him serious and mortal wounds which were the
direct and immediate cause of his untimely death; that after the said attack upon said Rolando Abellano y Fabroa,
said accused, did then and there take, rob and carry away his day's earning in the amount of P180.00, Philippine
Currency, to the damage and prejudice of the heirs of the said Rolando Abellana y Fabroa and in such amount as
may be awarded to them under the provisions of the Civil Code.
CONTRARY TO LAW. (Rollo, p. 2)
Upon arraignment, accused-appellant and Ernesto Parola entered a plea of not guilty. Thereafter trial on the merits
ensued.
There is no eyewitness for the prosecution. To establish the case against the accused, the prosecution relied mainly
on the extra-judicial confessions of the former taken down by Det. Armando Estrada.
The extra-judicial confession of Ernesto Parola y Cortina (Exhibit "A" Original Records) reads:
MALAYA AT KUSANG LOOB NA SALAYSAY NI ERNESTO PAROLA Y CORTINA NA KINUHA NI DET. ARMANDO B.
ESTRADA DITO SA CRIMINAL INVESTIGATION DIVISION, STATION 1, NPD, MPF NGAYON ALAS 10:15 NG
UMAGA, 23 NG NOVEMBER, 1977 SA HARAP NG MGA SAKSI . . . .
xxx xxx xxx

01 Tanong: Bago kita siyasatin ay gusto kong malaman mo ang inyong mga karapatan at gusto kong malaman mo na
ikaw ay sinisiyasat sa salang pagpatay ng tao na may kasamang pagnanakaw. Gusto kong maunawaan mo na ang
inyong mga karapatan ay ang mga sumusunod:
1. Na ikaw ay may karapatan manatiling tahimik sa pagsisiyasat na ito.
2. Na ikaw ay may karapatang kumuha ng inyong sariling abogado para tulungan ka sa pagsisiyasat na ito.
3. Na ikaw ay may karapatang pagkalooban ng abogado kung ikaw ay walang ikakayang kumuha ng iyong sariling
abogado.
4. Na ang lahat ng sasabihin mo rito ay maaring gamitin laban o panig sa yo sa alin mang hukuman sa Pilipinas.
Naunawaan mo ba ang iyong mga karapatan at handa ka pa rin bang magbigay ng isang malaya at kusang loob na
salaysay na hindi ka tinakot, sinaktan o pinangakuan ng ano mang pabuya?
SAGOT: Opo. (SGD) ERNESTO PAROL Y CORTINA
02 T: Ikaw ba ay marunong bumasa at umintindi ng wikang tagalog?
S: Opo.
03 T: Ano ang pinakamataas na naabot mo sa iyong pagaaral?
S: Grade six lang po.
04 T: Ano ang inyong pangalan at iba pang bagay na may kinalaman sa iyoong pagkatao?
S: ERNESTO PAROLA Y CORTINA, 18 na taong gulang, binata, pahinante sa PIER 8, tubo sa Macrohon, Southern
Leyte at naninirahan sa No. 3377 Mithi St., Tondo, Manila.
05 T: Ano ang dahilan kung bakit ka naririto sa aming tanggapan at nagbibigay ng isang malaya at kusang loob na
salaysay?
S: Dahil sa hinuli po kami ng mga pulis na hindi ko kilala na sila raw taga YOUTH AID BUREAU at kami po ay
ibinigay dito sa Criminal Investigation Division, Station 1, NPD, MPF dahil sa salang pagpapatay at pagholdup.
06 T: Kailan ba kayo nahuli ng mga pulis?
S: Noon pong mga alas 3:00 ng hapon, Linggo, 20 ng November, 1977 doon po sa Mithi St., Tondo, Manila.
07 T: Ipinapakita ko sa iyo ang isang litrato, ano ang masasabi mo sa taong ito at natandaan mo ba ang taong ito?
(Affiant being shown the picture of one ROLANDO ABELLANA Y FABROA, 27 years old, married, EH TAXI driver,
native of Davao Del Sur and residing at No. 188 Sauyo Road, Novaliches, Quezon city who was killed after having
been held up and the body of which (sic) was dumped at Tandang Sora, Quezon City.
S: Opo. Nakilala ko po yan. Yan po ang taong hinoldup namin at aming pinatay at pagkatapos po ay itinapon namin
doon sa Tandang Sora, Quezon City subalit hindi ko po matiyak and exaktong lugar.

08 T: Kailan at saan ninyo hinoldup itong taong ito?


S: Hindi ko po matandaan kung kailan subalit natatandaan ko po na sa unang linggo ng November, 1977 doon po sa
Moriones, Tondo, Manila subalit dinala namin siya sa Balintawak, Quezon City doon po sa may highway na hindi ko
masyadong matiyak ang lugar at doon namin siya sinaksak at kinunan ng pera at nang siya ay patay na ay isinakay
namin uli sa taxi at dinala namin sa Tandang Sora, Quezon City at doon namin itinapon.
09 T: Natatandaan mo ba kung ano ang pagkatao ng taong yan sa sinasabi mong pinatay ninyo at itinapon sa
Tandang Sora, Quezon City?
S: Siya po ay driver ng TAXI na hindi ko natatandaan ang pangalan na ang kulay po ng taxi ay kulay pula na may
guhit na dilaw sa katawan.
10 T: Maari bang isalaysay mo sa akin kung papano ninyo hinoldup ang taong yan?
S: Noon pong mga alas 10:00 ng gabi, linggo, 20 November, 1977 pinara po namin ang taxing minamaneho nitong
taong ito (affiant referring to the picture of ROLANDO ABELLANA) at kami ay sumakay at pagkatapos ay dinala
namin sa Balintawak, Quezon City. Pagdating po namin doon ay pinahinto po namin ang taxi at pagkatapos ay
kinuha namin ang kanyang pera at pagkatapos ay nakatakbo. Nang tumakbo siya ay hinabul namin at nang inabutan
namin ay sinaksak namin. Nang siya ay patay na ay isinakay namin uli sa taxi at pagkatapos ay tinapon namin doon
sa Tandang Sora, Quezon City. Pakatapos naming itapon ay dinala namin ang taxi at ang nagmaneho ng taxi ay si
CESAR PAREDES na nakatira sa Mithi St., Tondo, Manila. Pagkatapos po ay ipinagbili po nila ang metro ng taxi.
Hindi ko po alam kung magkano nila ibinenta at kung saan nila ibinenta sapagkat hindi na po ako kasama noon, pero
binigyan po ako ng P20.00. Ako po noon ay nagpaiwan na dito sa may Blumentrit, (palengke) at sila ay dala pa rin
nila ang taxi.
11 T: Hindi mo ba alam kung saan nila dinala yong taxi?
S: Hindi ko po alam, sir.
12 T: Magkano naman ang nakuha niyong pera doon sa driver na pinatay niyo?
S: Ang sabi po ni CESAR PAREDES at saka si JUNIOR ay P180.00.
13 T: Magkano naman ang ibinigay sa yo bilang parte mo doon sa perang naholdup niyo?
S: Binigyan po kami ng P20.00. Ang sabi po ni CESAR at saka ni JUNIOR ay tama na raw ang parte naming P20.00.
14 T: Sino-sino ba ang mga kasama mo sa pagholdup dito sa taxi driver na ito?
S: Sina CESAR PAREDES na nakatira sa Mithi St., Tondo, Manila, si JUNIOR na taga Mithi din, si JOVITO TUJON
na taga Mithi St., Moriones, Tondo, Manila at saka si ANTONIO MENA na taga Mithi St. din at saka ako.
15 T: Ano ang partisipasyon mo sa pagpatay doon sa taxi driver (ROLANDO ABELLANA)?

S: Ako po ang humawak sa kamay niya at pagkatapos po ay sinaksak ko rin siya


16 T: Ano naman ang partisipasyon noong mga kasama mo?
S: Si CESAR PAREDES ang humawak sa ulo at pagkatapos ay sinaksak niya, si JUNIOR ay sumaksak din, si
JOVITO TUJON ay sumaksak din, at si ANTONIO MENA ay sumaksak din.
17 T: Ano ang ginamit mo sa pagsaksak doon sa taxi driver?
S: Isang kutsilyong stainless at ang aking mga kasama ay balisong at ice pick ang kanilang ginamit.
18 T: Nasaan ngayon ang kutsilyong pinangsaksak mo?
S: Naki JUNIOR po at ang lahat ng kutsilyong ginamit namin ay sa kanya.
19 T: Nasaan naman ang mga kasama mong binanggit mo?
S: Ang dalawa na sina JOVITA TUJON at si ANTONIO MENA ay kasama kong nahuli subalit sila CESAR at si
JUNIOR ay nakatakas at sila ngayon ay nagtatago.
20 T: Maari bang ilarawan mo yong taxi driver na pinatay niyo matapos niyong kunin ang kanyang kita at itinapon niyo
sa Tandang Sora, Quezon City?
S: Siya po ay mahabang buhok, katamtamang lang ang katawan, mga 27 na taong gulang, may kaunting biguti,
kayumanggi ang kulay.
21 T: Natatandaan mo ba kung ilan nang tao ang pinapatay niyo dahil sa holdup?
S: Isa lang ang napatay na kasama po ako.
22 T: Alin yong napatay niyo na kasama ka?
S: Yong pong itinapon namin sa Tandang Sora, Quezon City.
23 T: Bakit niyo pinatay ang taong ito?
S: Sapagkat sinabi po ni CESAR at saka ni JUNIOR na patayin daw namin kaya po namin pinatay.
24 T: Ilang beses ka nakasama sa panghoholdup?
S: Apat na beses na po ako nakasama sa kanila. Dalawang jeep at saka dalawang taxi. Nakalimutan ko na po ang
pangalan nang mga taxi.
25 T: Sabihin mo kung saan at kung kailan niyo hinoldup ang binanggit mo?
S: Yon pong dalawang jeep ay doon sa Novaliches, Quezon City at yong isang taxi ay sa Balintawak, Quezon City at
yong isa ay sa Novaliches, Quezon City.
26 T: Ilan bang grupo ang sinasamahan mo?
S: Ang sinasamahan ko lang ay ang grupo ni CESAR at saka ni JUNIOR.
27 T: Maliban sa pagholdup ng taxi ay umakyat din ba kayo ng bahay para magnakaw?

S: Opo. Umaakyat din po kami ng bahay para magnakaw.


28 T: Ilang beses na kayo umakyat sa bahay?
S: Dalawang beses po yong nasamahan ko sa kanila na umakyat kami ng bahay.
29 T: Natatandaan mo ba kung saan bahay yong inakyat ninyo?
S: Hindi ko po alam sabihin ang lugar subalit alam ko po kung pupuntahan ko.
30 T: Ano-ano ang mga bagay na nakuha niyo nang kayo'y umakyat sa bahay?
S: Ang nakuha po namin ay PHONO, RADIO, SAPATOS, DAMIT, CALDERO, KALAN NA BUMBA.
31 T: Saan ninyo ibinebenta ang mga ninakaw niyo?
S: Ibinebenta namin doon din sa Mithi St., Moriones, Tondo, Manila.
32 T: Magkano ninyo ibinenta yong PHONO at saka yong RADIO?
S: Yon pong PHONO ay P150.00 at yong radio ay P125.00.
33 T: Yong bang grupo ninyo nina CESAR, JUNIOR, JOVITO, at si ANTONIO ay mayroon bang baril?
S: Si CESAR po ay may baril na .22 caliber. Si JUNIOR ay Parolee.
34 T: Yong mga metro ng taxi na kinuha ninyo, saan ninyo ibinibenta?
S: Hindi ko po alam kung saan nila ibinibenta. Ang nakakaalam ay si CESAR, si JUNIOR at si JOVITO.
35 T: Wala na akong itatanong sayo, mayroon ka bang nais bawasin o idagdag sa salaysay mong ito?
S: Wala na po.
36 T: Lalagdaan mo ba ang salaysay mong ito bilang patunay na ang mga sinabi mo rito ay pawang katotohanan?
S: Opo.
37 T: Ang paglagda mong ito ay hindi kita tinakot, sinaktan at pinangakuan ng ano mang pabuya o kaluwagan sa
buhay?
S: Opo.
(SGD) ERNESTO PAROLA Y CORTINA
Nagsalaysay
Statement taken by:
Det. ARMANDO B. ESTRADA
Investigator, H & A Sec.
MGA SAKSI SA PAGLAGDA:
1. (SGD) 2. (SGD)
Det. Enrico Larga Augusto Perlada

On the other hand, the extra-judicial confession of appellant Jovito Tujon y Tapel, likewise taken by Det. Armando B.
Estrada on November 23, 1977 (Exhibit "B", Original Records), reads:
MALAYA AT KUSANG LOOB NA SALAYSAY NI JOVITO TUJON Y TAPEL NA KINUHA NI DET. ARMANDO B.
ESTRADA DITO SA CRIMINAL INVESTIGATION DIVISION, STATION 1, NPD, MPF NGAYONG ALAS 1:45 NG
HAPON, 23 NG NOVEMBER, 1977 SA HARAP NG MGA SAKSI . . . .
xxx xxx xxx
01. Tanong: Bago kita tanongin ay gusto kong malaman mo ang iyong mga karapatan sa ilalim ng ating bagong
saligang batas na ikaw ay:
1. May karapatang manatiling tahimik sa pagsisiyasat na ito.
2. May karapatang kumuha ng iyong sariling abogado para tulungan ka sa pagsisiyasat na ito.
3. May karapatang pagkalooban ng abogado kung ikaw ay walang ikakayang kumuha ng iyong sariling abogado.
4. Ang lahat ng sasabihin mo rito ay maaaring gamitin laban o panig sa yo sa alin mang hukuman sa Pilipinas.
Gusto ko ring malaman mong ikaw ay sinisiyasat sa kasong pagpatay ng tao na may kasamang pagnananakaw. Ikaw
ba ay handa pa ring magbigay ng isang malaya at kusang loob na salaysay na hindi ka tinakot, sinaktan o
pinangakuan ng ano mang pabuya o kaluwagan sa katawan?
Sagot: Opo. (SGD) JOVITO TUJON Y TAPEL
02 T: Ikaw ba ay marunong bumasa at umintindi ng wikang tagalog?
S: Opo.
03 T: Ano ang pinakamataas na inabot mo sa iyong pag-aaral?
S: Grade six lang po.
04 T: Ano ang iyong pangalan at iba pang bagay na may kinalaman sa iyong pagkatao?
S: JOVITO TUJON Y TAPEL, 22 na taong gulang, binata, trabahador, tubo sa Ogbong Biga, Catanduanes at
naninirahan sa No. ____ Mithi St., Moriones, Tondo, Manila.
05 T: Ano ang dahilan kung bakit ka naririto sa aming tanggapan at nagbibigay ng isang malaya at kusang loob na
salaysay?
S: Dahil po sa pagpatay doon po sa taxi driver na hindi ko po nakikilala.
06 T: Nalalaman mo ba kung anong taxi ang minamaneho noong taong pinatay niyo?
S: Hindi ko na natandaan yong pangalan ng taxi subalit ang natatandaan ko po ay kulay blue at mayroon pang ibang
kulay na hindi ko po natandaan.
07 T: Kailan at saan niyo pinatay ang driver ng taxi na yan?

S: Hindi ko po natandaan ang petsa pero unang linggo ng November, 1977 doon po sa pagpuntang Sta. Maria,
Bulacan at nang patay na ay dinala po namin doon po sa may Tandang Sora, Novaliches, Quezon City.
08 T: Papano niyo pinatay ang taxi driver na ito?
S: Sinaksak po namin.
09 T: Anong uri ng patalim ang ginamit niyo sa pagsaksak sa kanya?
S: Kutsilyo po na pangkusina na stainless na may ganito kahaba po. (Affiant demonstrating a length of about 8-
inch) Yong mga kasama ko po ay talagang dagger at yong iba naman po ice pick.
10 T: Ilang beses mo sinaksak ang taong ito?
S: Dalawa po.
11 T: Mayroon ka bang nalalamang dahilan kung bakit niyo sinaksak ang taong ito?
S: Hinoldup po namin pagkatapos po ay pinatay po namin.
12 T: Magkano namang pera ang nakuha ninyo sa kanya?
S: P180.00 na perang cash ang nakuha namin sa kanya.
13 T: Maari bang isalaysay mo sa akin kung papano ninyo hinoldup at pinatay yung tao na taxi driver?
S: Noon pong mga alas 9:00 ng gabi, hindi ko na po matandaan ang petsa subalit natatandaan ko po na unang
linggo ng November, 1977 kami po ay sumakay sa taxi na hindi ko po matandaan ang pangalan at pagkatapos po ay
dinala po namin siya sa Sta. Maria, Bulacan. Pagdating po namin doon ay tinutukan po namin ng kutsilyo at tinutukan
namin ni CESAR ng baril at pagkatapos ay ibinalik namin doon sa may tulay doon din sa Sta. Maria, Bulacan at
pagkatapos po ay pinahinto po namin doon sa may tulay at pagkatapos po ay kinuha namin ang kanyang pera.
Pagkatapos po niyang iyabot yong pera ay parang natakot yong driver at biglang tumakbo at pagkatapos po ay
hinabul namin. Ngayon po ay inabutan ng aking mga kasama at pagkatapos po ay ibinalik po namin doon sa may taxi
at pagkatapos po ay nagtaas ng kamay yong driver at pagkatapos po ay sinaksak na ni CESAR. Pagkatapos po ay
sinaksak ni NESTOR (Real name is ERNESTO PAROLA). Pagkatapos po ay itinulak po ni CESAR sa akin at
sinabing saksakin mo rin kaya ko po sinaksak din. Pagkatapos po ay naghihingalo na po yong driver ay isinakay po
namin siya sa taxi niya at pagkatapos po ay dinala namin doon sa may Tandang Sora, Novaliches, Quezon City at
doon namin itinapon. Ang lugar na pinag tapunan po namin ay canal. Pagkatapos po noon ay sumakay na naman po
kami doon sa kanyang taxi at kami po ay nagtuloy sa may MORIONES, Tondo, Manila. Kami po ni ANTONIO MENA
at si ERNESTO PAROLA ay nagpaiwan na po doon sa Moriones, Tondo, Manila. Kami pong tatlo ay umuwi na subalit
sina CESAR at si JUNIOR ay dinala nila yong taxi at hindi ko po alam kung saan nila dinala yong taxi.
14 T: Magkano naman ang parte mo doon sa perang hinoldup ninyo doon sa taxi driver?

S: P30.00 po ang ibinigay sa akin ni CESAR.


15 T: Maari bang ilarawan mo sa akin ang itsura noon taong taxi driver na hinoldup ninyo?
S: Ang edad po noong driver ay mga 27 o 28 na taong gulang, mga 5'1" and taas, payat po, kayumanggi po may
biguti, hindi po masyadong mahaba ang buhok, medyo maliit ang mukha na mabuto at kung makikita ko ang litrato po
niya ay makikilala ko po.
16 T: Ipinapakita ko sayo ngayon ang isang litrato, natatandaan mo ba kung naririto yong taxi driver na hinoldup
ninyo?
S: Ito po yong taong hinoldup po namin at aming pinatay doon po sa Sta. Maria, Bulacan. (Affiant pointing to the
picture of the one ROLANDO ABELLANA Y FABROA, an EH TAXI driver who was discovered lifeless along Charles
Conrad St. near Alan Beam St., Doa Faustina Subdivision, Bo. Culiat, Tandang Sora, Quezon City as he was shown
by this investigator).
17 T: Natatandaan mo ba kung ano ang suot noong driver na pinatay niyo doon sa Sta. Maria, Bulacan?
S: Hindi ko na po natandaan ang kulay ng kanyang pantalon subalit natandaan ko po na ang kanyang polo shirt ay
kulay abo (gray).
18 T: Isa-isahin mo nga kung sino-sino yong mga kasama mo doon sa holdup at pagpatay doon sa taxi driver na
yon?
S: Si CESAR PAREDES, si JUNIOR, ERNESTO PAROLA (NESTOR-alias), at si ANTONIO MENA na lahat ay taga
Mithi St., Moriones, Tondo, Manila (Squatter's Area).
19 T: Ano-ano ang mga armas na dala ninyo noon nang hinoldup ninyo itong taxi driver na ito?
S: Ang may baril po ay si CESAR (.45 caliber), si JUNIOR ay may .22 caliber revolver, at lahat na kami ay puro
kutsilyo na. Pero maliban doon sa baril ni CESAR at ni JUNIOR ay mayroon pa po silang panaksak.
20 T: Nasaan ngayon yong mga panaksak na ginamit niyo sa pagpatay doon sa taxi driver?
S: Dala po ni JUNIOR at saka si CESAR pati yong baril po ay nasa kanila.
21 T: Ilang beses ka na pumatay ng tao?
S: Dalawa na po na kasama po ako.
22 T: iwanagin mo nga kung saang lugar at kung kailan?
S: Ang una po ay October, 1977, hindi ko na po matandaan ang petsa pero pinatay po namin doon sa Novaliches,
Quezon City at iniwan lang po namin doon. Yong pangalawa po ay yong taxi driver po na hinoldup po namin ay
pinatay namin sa Sta. Maria, Bulacan.
23 T: Sigurado ka bang patay din yong unang sinaksak niyong iniwan ninyo sa Novaliches, Quezon City?

S: Hindi po namin alam kung namatay yon o hindi.


24 T: Maari bang ilarawan mo sa akin kung ano ang isura ni CESAR at saka si JUNIOR?
S: Siya po ay mga 19 na taong gulang, mga 5'3" ang taas, malaki ang katawan, maputi, hindi masyadong mahaba
ang buhok, medyo bilog ang mukha at matangos ang ilong, medyo guapo, ang buhok ay may hati sa kanan, medyo
kuba kung lumakad, mayroong kaunting biguti at ang hinlalaki ng kaliwang paa ay parang pataas. Si CESAR ay may
tatlong SPUTNIK sa kanang likod. Si JUNIOR naman ay mga 25 taong gulang, mga 5'1" ang taas, medyo maliit ang
katawan, maputi, maiksi po ang buhok dahil sa siya ay nagpakalbo, may pagkaguapo na medyo matangos ang
kanyang ilong, may manipis na biguti, may tattoo sa tiyan.
25 T: Maliban sa pangholdup, kayo ba ay umaakyat din ng bahay?
S: Opo. Umaakyat din po kami ng bahay doon po sa Novaliches, Quezon City.
26 T: Ilang beses na kayo umakyat ng bahay?
S: Sa Novaliches ay dalawang beses na po umakyat ng bahay at diyan lang po kami umakyat ng bahay.
27 T: Ano-anong mga bagay ang mga nakuha ninyo nang kayo umakyat ng bahay?
S: Isang RADIO PHONO, pantalon, damit, kalan na di bumba, gitara. Ito ay isang bahay lang sa Novaliches, Quezon
City. Doon sa isang bahay ay mayroon po kaming kinuhang pantalon, damit, television (dalawa) kaserola, alak,
Shellane na kalan, caldero, wala na po.
28 T: Ilang lahat ang bahay na inakyat ninyo?
S: Lima pong bahay. Hindi ko po alam ang address subalit alam po naming puntahan.
29 T: Saan ninyo ibinibenta ang mga ninanakaw ninyo?
S: Doon po sa Mithi St., Moriones, St., Tondo, Manila. Yong television ay ibenenta namin sa Pasay City sa Tia ni
Cesar. Naibenta po namin ng P400.00.
30 T: Magkano ang parte mo rito sa lahat ng nanakaw ninyong ito?
S: P400:00 ang parte ko po.
31 T: Ang mga metro ng taxi na ninanakaw niyo, saan niyo ibinibenta?
S: Sa Moriones po namin ibinibenta yong iba at yong iba naman ay sa Marikina. Ang kasama po naming nagbenta ay
si JUNIOR.
32 T: Ilang metro na ang naibenta niyo?
S: Mga walong (8) metro na po. Tatlo (3) ang naibenta sa Marikina at lima naman sa Moriones.
33 T: Ilang taxi at ilang jeep ang inyong naholup?
S: Dalawang jeep at tatlong taxi ang tinutukan namin.

34 T: Saang lugar ninyo ninakaw ang mga taxi meter na ito?


S: Sa PIER 12 ay dalawa, sa Pier 10, tatlo, sa Moriones tatlo po.
35 T: Saan natin makukuha itong si CESAR at saka si JUNIOR?
S: Si JUNIOR ay maaring sa PIER 8 si CESAR ay hindi ko po alam.
36 T: Pansamantala ay wala na akong itanong sayo, mayroon ka bang nais bawasin o idagdag sa salaysay mong ito?
S: Wala na po.
37 T: Lalagdaan mo ba ang salaysay mong ito bilang patunay na ang mga sinabi mo rito ay pawang katotohanan na
hindi ka tinakot, sinaktan o pinangakuan ng ano mang pabuya o kaluwagan sa katawan?
S: Opo.
(SGD) JOVITO TUJON Y TAPEL
STATEMENT TAKEN BY:
DET. ARMANDO B. ESTRADA
NILAGDAAN SA HARAP NG MGA SAKSI:
1. (SGD) 2. (SGD)
Det. Enrico Larga Cpl. Augusto Perlata
SUBSCRIBED AND SWORN TO BEFORE ME THIS 30 DAY OF NOV. 1977 HERE IN QUEZON CITY,
PHILIPPINES.
(SGD) ADMINISTERING OFFICER
In addition, the prosecution presented the following witness, whose testimonies are as follows:
Det. Armando B. Estrada, a police detective of the Northern Police District, Criminal Investigation Division, Station I,
Quezon City, identified the extra-judicial confessions and testified that he was the officer who received custody of the
accused from the members of the Youth Aid Bureau for investigation on November 23, 1977 (TSN, June 21, 1978, p.
1-2), and declared that before he took the extra-judicial confessions of the accused-appellants, he advised them of
their constitutional rights to remain silent, to secure the services of a counsel to assist them and if they can not afford
to secure the services of counsel, they will be provided with one, and that everything they will say may be used for or
against them in any court of the Philippines (TSN, June 21, 1978, pp. 2-3). Immediately thereafter, he asked them if
after knowing their rights, they were still willing to give their statements freely and voluntarily. Both accused-appellants
answered in the affirmative (TSN, June 21, 1978, pp. 3-4). Appellants allegedly further declared that they will give
their statements even without the assistance of counsel, considering that what they will state therein would only be

the truth. Accordingly, he took the statements of the accused without a lawyer, and both signed their confessions in
his presence (TSN, June 21, 1978, pp. 4-7).
Dr. Romulo Madrid, resident physician of the Polymedic, Mandaluyong, testified that on November 3, 1977, he was
the one who conducted an autopsy on the corpse of one Roland Abellana at Funeraria Popular, one of the official
morgues of the National Bureau of Investigation and issued Necropsy Report No. N-77-1779 (Exhibit "D", Rollo). His
findings revealed that the victim died of hemorrhage secondary to multiple stab wounds on the chest and neck and
that the probable weapon used in inflicting said stab wounds on the victim was a sharp-pointed bladed instrument
(TSN, November 7, 1979, pp. 2-4).
Fiscal Jesus T. Baldonado, of the Quezon City Fiscal's Office, was presented as a rebuttal witness of the prosecution.
He testified that on November 23, 1977, the accused Jovito Tujon and Ernesto Parola accompanied by policemen
were brought to his office for investigation; that before he proceeded with the said investigation, he apprised first the
accused of their constitutional rights, which was his standard operating procedure; that he asked both accused if the
statements they executed before the police were freely given, which was answered in the affirmative by the accused;
that he left them affix anew their respective signatures on the said statements in his presence. He further stated that
during the said investigation, both accused did not in any way complain that they had been maltreated by the
policemen nor did he notice any sign of injury on their persons. He declared that it was likewise his standard
operating procedure that should he notice any sign of injury on the persons of the accused, he would readily refer
them to the City Health Office for medical treatment (TSN, February 26, 1982, pp. 1-5).
After the presentation of the foregoing testimonial and documentary evidence, the prosecution rested its case.
During the pendency of this case, accused Ernesto Parola escaped from the Quezon City Jail; consequently the
defense presented only accused Jovito Tujon as its lone witness, who vehemently denied the accusation against him.
Jovito Tujon testified that he arrived in Manila only on November 2, 1977 and that he came from the province of
Catanduanes. He came to Manila to look for a job and while in Manila, he stayed with his uncle named Alberto Ubal in
Tondo, Manila. He was in his uncle's house on November 3, 1977, helping him do some odd jobs. Two weeks after
his arrival, he was arrested for unknown reasons. He also testified that he did not know his other co-accused, namely:
Ernesto Parola, Cesar Paredes and Antonio Mena. He came to know the other accused Ernesto Parola only at the
police precinct when they were arrested.
Accused-appellant Tujon further testified that while he was at the police precinct, he was made to face the wall and
was kicked from behind for which reason he fell on the floor in a sitting position. He was then brought to a room
where he was given fist blows. Then he was asked to lie on a bench with his hands tied behind him. A rag was placed

inside his mouth and water was poured in his nose while his stomach was being boxed, causing him to vomit. He
further testified that the policemen asked him to admit his participation in the crime and if not, they would box him
again. The policemen asked him to sign a paper the contents of which he did not know. He did not have a chance to
read the said piece of paper considering that all parts of his body were painful as a result of the said mauling. Neither
did he have a chance to receive medical attention (TSN, February 24, 1982, pp. 1-2)
He further declared that he did not know that accused Ernesto Parola implicated him in the alleged robbery holdup of
a certain Rolando Abellana. He had nothing to do with the offense charged against him and that he could not
remember having been investigated by Det. Armando Estrada regarding this case (TSN, February 24, 1982, pp. 2-3).
The trial court gave more with to the evidence of the prosecution consisting mainly of the extra-judicial confessions of
the accused, and, as earlier stated, found both accused Ernesto Parola and Jovito Tujon, guilty as charged.
Hence, this appeal.
On March 18, 1987, accused-appellant Jovito Tujon filed an urgent motion to withdraw appeal (Rollo, p. 110) but
counsel for appellant in his comment on the motion, prayed that the said urgent motion to withdraw appeal filed by
Tujon be disregarded, as it was merely a by-product of misjudgment. The motion to withdraw appeal was then denied
by this Court.
Among others, counsel for appellant contends that the court a quo gravely erred in convicting the two accused of the
crime charged by relying heavily on their respective extra-judicial confessions, which are clearly not admissible in
evidence in the instant case.
The Solicitor General agrees with counsel for appellant that the evidence presented is not sufficient to sustain
conviction. He correctly observed that it was not even shown by the evidence how appellant came to be suspected of
the robbery and killing and subsequently arrested. The evidence against the accused consists solely of their extrajudicial confessions. There is no eyewitness and not even a single circumstantial evidence pointing to the accused as
the perpetrators of the crime (Rollo, pp. 89-90). Compared with the evidence of the prosecution, the claim of Tujon
that he has just arrived in Manila to look for a job when he was arrested by the police for unknown reason, is more
persuasive.
Furthermore, it was observed that the extra-judicial confessions are not even consistent with each other nor credible.
In the extra-judicial confessions of Ernesto Parola y Cortina, the victim was killed in Quezon City and his body was
dumped at Tandang Sora, Quezon City while in the extra-judicial confession of Jovito Tujon y Tapel, the victim was
killed in Sta. Maria, Bulacan. Similarly, in the former, it was stated that the killing occurred on November 20, 1977,
while in the latter, the killing was supposed to have taken place in the first week of November, 1977. Notably, the body

was found on November 3, 1977. Still further, Parola stated that the color of the taxi is red while according to Tujon,
the color is blue (Rollo, pp. 90-96). It is, therefore, evident that the veracity of aforesaid confessions is not acceptable.
But more importantly, while it is clear from the records that the accused were informed of two (2) constitutional, rights,
namely: (1) the right to remain silent and (2) the-right to be assisted by counsel of their own choice, it is not clear that
they were actually offered the services of a lawyer and they refused. In any event, it is undisputed that the waiver of
the accused of their right to counsel was made without the assistance of counsel.
This Court has ruled that the right of a person under custodial interrogation to be informed of his right to remain silent
and to counsel, implies a correlative obligation on the part of the police investigator to explain and contemplate an
effective communication that results in an understanding of what is conveyed. Short of this, there is a denial of the
right, as it cannot truly be said that the accused has been "informed" of his right (People v. Newman, 163 SCRA 496,
[1988]). When the Constitution requires a person under investigation to be informed to remain silent and to counsel, it
must be presumed to contemplate the transmission of meaningful information rather than just the transmission of
meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle
(People v. Flores, 165 SCRA 71 [1981]). It is the duty of the police officer to explain their practical effects (People v.
Nicandro, 141 SCRA 289 [1986]). Thus, it would not suffice for a police officer just to report to the person under
investigation the provision of Section 20, Article IV of the Constitution (now Art. III, Section 12, 1987 Constitution;
People v. Flores, supra,).
As pointed out by this Court in People vs. Nicandro, supra:
When the Constitution requires a person under investigation "to be informed" of his right to remain silent and to
counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it would not be
sufficient for a police officer just to repeat to the person under investigation the provisions of Section 20, Article IV of
the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also
explain their effects in practical terms . . . In other words, the right of a person under interrogation "to be informed"
implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective
communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot
truly be said that the person has been "informed" of his rights. Now, since the right "to be informed" implies
comprehension, the degree of explanation required will necessarily vary, depending upon the education, intelligence
and other relevant personal circumstances of person under investigation. Suffice it to say that a simpler and more
lucid explanation is needed where the subject is unlettered.

In the case at bar, and in the testimony of the police officer, it is undeniable that no serious effort was shown to have
been exerted by the investigators to explain the consequences of the investigation. On the investigator is reposed the
duty to explain the effects of the constitutional rights practical terms (People v. Duhan, 142 SCRA 100 [1986]).
Furthermore, this Court has consistently ruled that waiver of right to counsel to be valid, must be in writing and in the
presence of counsel. Extra-judicial confessions taken without the assistance of counsel is inadmissible in evidence
(People v. Albofera, 152 SCRA 123 [1987]). Hence, while the right to counsel may be waived, such waiver must be
done voluntarily, knowingly and intelligently and made in the presence of the accused's lawyer. If the records do not
show that the accused was assisted by counsel in making his waiver, this defect nullifies and renders inadmissible in
evidence his confession (People v. Nolasco, 163 SCRA 623, [1988]. In the case of People v. Hizon, 163 SCRA 760
(1988), this Court, citing the procedure laid down in the case of People v. Galit, 135 SCRA 465 [1985]), ruled that the
suspect must be informed that he has a right to the assistance of counsel and assured that he will be provided with
one for free. While he may choose to waive the right, such waiver must be a knowing and intelligence one and in any
case must be made only with the assistance of counsel. Any waiver made without observance of these requirements
is null and void. Thus:
At the time the person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest
and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent
and to counsel, and that any statement he might make could be used against him. The person arrested shall have the
right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone
if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the
person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or
by anyone on his behalf. The right to counsel may be waived but the waiver shall not valid unless made with the
assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or
inculpatory, in whole or in part, shall be inadmissible in evidence. (Morales, Jr. v. Ponce Enrile, 121 SCRA 538
[1983]).
Indeed, the ban against uncounseled confessions is even more pronounced under Sec. 12, Art. III of the 1987
Constitution which states that:
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 be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.
xxx xxx xxx
3) Any confession or admission obtained in violation of this . . . shall be inadmissible in evidence against him. (See
also People v. Nicolas, 204 SCRA 191 [1991]).
It is a matter of record that the interrogation was made in the absence of counsel de parte or de oficio and the waiver
of counsel, if made at all, was not made with the assistance of counsel as required. Under the circumstances, there is
no question that proof of guilt beyond reasonable doubt has not been established. As ruled by this Court, when the
evidence for the prosecution and the evidence for the accused are weighed, the scales must be tipped in favor of the
latter. This is because of the constitutional presumption of innocence the accused enjoys as a counterfoil to the
awesome authority of the State that is prosecuting him. Undoubtedly, if a life is taken, justice demands that the wrong
be redressed, but the same justice that calls for retribution cannot convict the prisoner at bar whose guilt has not
been proved beyond reasonable doubt. The element of doubt, if reasonable as in this case, must operate against the
inference of guilt the prosecution would draw from its evidence (People v. Pecardal, 145 SCRA 647-648 [1986]).
As aforesaid, no promulgation of judgment was rendered with respect to Ernesto Parola who managed to escape
from jail shortly after arraignment.
Considering, however, that the crime charged had not been proven beyond reasonable doubt and the disposition
herein arrived at is favorable to accused Ernesto Parola, he shall benefit from the judgment of this Court which is
acquittal despite the fact that he jumped bail. In this regard, apropos is the pronouncement of this Court in People vs.
Fernandez (186 SCRA 834 [1990]), viz.:
While, in effect, committed an act of defiance of the law by escaping, we are not without other prior incidents where
such undesirable conduct, which should not be condoned, has sometimes been ascribed to a sense of desperation of
those who believe they are guiltless but fear that they cannot prove their innocence. While we castigate and reprove
his jumping bail and remaining at large up to now, we have to concede, however, that our disquisition in this case is
applicable and favorable to him, hence, he is affected by and shall benefit from the acquittal that we hand down in this
appeal.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE and both accused are hereby ACQUITTED.
SO ORDERED.

!
!

[G.R. Nos. 100940-41. November 27, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGUSTIN LADAO y LORETO,


ALEX DE GUZMAN y MAGAT, HENRY PONSECA y SORIANO, ANTONIO
PANGANIBAN y AQUINO, VICTORIO EUGENIO y ROQUE, John Doe, Peter Doe and
Charlie Doe, accused.
HENRY PONSECA y SORIANO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:

Accused-appellant Henry Ponseca y Soriano appeals from the Decision[if !supportFootnotes][1][endif] of the Regional
Trial Court of Caloocan City, Branch 131, convicting him and his four co-accused[if !supportFootnotes][2][endif] of the crime
of robbery with homicide, sentencing them to suffer the penalty of reclusion perpetua, and ordering them to pay
the heirs of the victim the amounts of P30,000.00, as civil indemnity and P10,500.00, as burial and wake
expenses.
The information against accused-appellant reads:
That on or about the 29th day of January, 1990 in Caloocan City, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and mutually helping one another, with intent to
gain and by means of force and violence employed upon the person of ALFONSO DELA CRUZ Y
QUIAMBAO, that is, by tying the latters both hands and feet and subsequently dumping his body at the estero in
Tanigue St., Dagat-Dagatan, this city, did then and there wilfully, unlawfully and feloniously take, rob and carry
away undetermined amount, belonging to the said complainant, to the damage and prejudice of the latter in
undetermined amount; and as a result of aforesaid force and violence employed to said victim, the latter drowned
at the estero which incident directly caused his death.!
Contrary to law.[if !supportFootnotes][3][endif]!

Upon arraignment on February 19, 1990, accused-appellant pleaded not guilty.

The records show that accused-appellant was among those apprehended by the Caloocan Police on the night
of February 9, 1990, in connection with the rampant robbery and hold-up incidents in Caloocan. In the ensuing
investigation conducted by Police Inspector Antonio Paras and Ricardo Concepcion, accused-appellant and his
co-accused executed, with the assistance of Atty. Juanito R. Crisostomo of the Public Attorneys Office, Caloocan
City, their extra-judicial confession admitting authorship of the crime of robbery with homicide.
In his extra-judicial confession, accused-appellant declared that he and his four co-accused, together with
three others who were able to escape, held up the passenger jeepney driven by the victim. He further stated that
they tied the hands and feet of the victim and threw him into the estero not knowing that the place was filled with
water. Using the jeepney of the victim, they plied the Recto-Caloocan route and picked up passengers whom they
likewise robbed. Thereafter, they abandoned the jeepney somewhere in the corner of P. Sevilla Street and 10th
Avenue.
The full text of accused-appellants extra-judicial confession states:
PAUNAWA: Ikaw, Henry Ponseca ay nasa ilalim ng pagsisiyasat ng tanggapang ito hinggil sa kasong panghohold-up na
may kasamang pagpatay, dahil dito, nais kong malaman mo na sa ilalim ng ating umiiral na Bagong Saligang-Batas,
Ikaw ay may mga karapatang katulad ng mga sumusunod:
1 - Karapatang manatiling tahimik o tumangging magbigay ng salaysay; nauunawan mo ba ito?
SAGOT: OPO.
2 - Karapatan mong malaman ang reklamo laban sa iyo, nauunawan mo ba ito?
SAGOT: OPO.
3 - Karapatan mong kumuha ng ayuda ng abogadong sariling pili mo at kung hindi mo kaya ito ay bibigyan ka ng ating
pamahalaan para umayuda sa iyo, nauunawaan mo ito?
SAGOT: OPO.
4 - At anumang sasabihin mo'y maaring gamiting laban sa iyo sa alin mang hukuman ng pag-uusig, nauunawan mo ba
ito?
SAGOT: OPO.

TANONG: Matapos mong malaman at maunawaan ang iyong mga karapatan bilang isang taong nasa ilalim ng
pagsisiyasat, ikaw bay nakahandang magbigay ng malaya at kusang loob na salaysay na ang sasabihin moy pawang
katutuhanan lamang?
SAGOT: Opo, magbibigay po ako ng salaysay at aayudahan ako ni Atty. Juanito Crisostomo ng Caloocan Public
Assistance Office.
02. T: Kung gayon, sabihin mong muli ang pangalan mot mga bagay-bagay na lubos na pagkikilanlan sa iyong
pagkatao?
S: HENRY PONSECA y SORIANO, 30 taong gulang, may-asawa, walang trabaho at kasalukuyang naninirahan sa
2741-G Santos St., Gagalangin, Tondo, Manila.
03. T: Marunong ka bang sumulat, bumasa at umintindi ng salitang Tagalog?
S: Marunong po.
04. T: Inaakusahan ka Henry Ponseca ng Pangho-HOLD-UP na may kasamang pagpatay, na naganap nuong petsa-29
ng Enero 1990, mga bandang alas-10 ng gabi duon sa Tanigue St., Dagat-Dagatan, Caloocan City, ano ang masasbi mo
rito?
S: Tutuo po iyun, kasama po ako.
05. T: Nakikilala mo ba kung sino ang namatay sa insidenteng nabanggit?
S: Ang namatay po duon dahil nalunod ay ang driver ng pampasaherong jeep na aming na-HOLD-UP at dito po sa
opisina ninyo ay nakilala ko sa pangalang: Alfredo dela Cruz y Quiambao.
06. T: Ano ba mismong naging partisipasyon mo dito sa nasabing kaso?
S: Ako po ang umupo sa dulo ng jeep, lumimas sa mga gamit at pera ng mga pasahero at gumapos at naghulog doon sa
driver ng jeep sa may estero duon sa Dagat-Dagatan na hindi ko alam ay may tubig pala kayat nalunod itong driver.
07. T: May mga kasama ka ba dito sa pangyayaring ito?
S: Mayruon po, sila po ang ilan (Affiant at this juncture is pointing and referring to the persons who are presently inside
the investigation room and who when asked gave their names as: VICTORIO EUGENIO y ROQUE @ Itoy, AGUSTIN
LADAO y LORETO @ Agustin, ALEX DE GUZMAN y MAGAT @ Alex and ANTONIO PANGANIBAN y AQUINO
@Tony) kasama pa rin po namin [sina] BAYANI @ Onse, REY at ROWELL na taga-Caloocan din pero nakatakas.
08. T: Isalaysay mo nga ang mga pangyayaring may kinalaman sa hold-up na may kasamang pagpatay na ito?

S: Nagkita-kita po kaming magkakasama sa Letre at duon ay nagplano kaming mangho-HOLD-UP nga.


Sumakay po kami ng jeep at nagpunta kami ng Malinta, Valenzuela. Pagdating duon, bale walo (8)
kaming magkakasama ay muli kaming sumakay ng jeep patungong Monumento naman at itong jeep nga
ay minamaneho ng napatay namin. Ako po ay pumuesto sa dulo ng jeep, itong sina Bayani at Alex ay
lumagay naman sa harapan ng jeep, katabi ng driver si Alex. Ang ibang mga kasama namin ay pawang
nasa loob ng jeep. Bale anim (6) po ang pasahero ng jeep at pagdating duon sa may Del Monte ay naganounce na kami ng hold-up at inilabas na rin ni Agustin itong baril na dala niya. Pinakanan po namin
ang jeep sa Del Monte, diretso ng Acacia at tuloy ng Caloocan. Nuon po namin nilimas ang mga gamit at
pera ng mga pasahero at saka ibinaba sila sa ilang na lugar sa Caloocan. Ang orihinal na driver naman
po ay iginapos namin at itong si Bayani ang nagmaneho. Pinadapa po namin ang driver na sa kalaunan
ngay nakilala kong si Alfredo dela Cruz sa loob mismo ng jeep at pagdating duon sa Tanigue St. DagatDagatan, Caloocan, ay ibinaba namin siya, pinalakad ng inut-inot patungong estero at lima (5) kami
nina Bayani, Alex, Rowel, at Rey na bumuhat sa kanya at naglaglag sa estero, na hindi namin alam na
may tubig kayat namatay itong driver sa pagkalunod. Sumakay kaming muli sa jeep at bumiyahe pa kami
na si Bayani pa rin ang driver at mula sa Recto patungong Monumento ay hinold-up namin itong mga
pasahero namin sa bandang Manuguit at nang matapos namin silang pababain ay inabandona namin
ang jeep sa may P. Sevilla, 10th Ave., Calookan City.
09. T: Anu-ano ba ang mga na-hold-up ninyo sa unang banat ng gabing iyun?
S: Halu-halo na po, relo, alahas, pera, at iba pa at pumarte po ako ng halos P170.00 lamang.
10. T: Sinong nagparte ng mga nahold-up ninyo?
S: Kami-kami na rin po.
11. T: Saan kayo nag parte-parte?
S: Duon na po sa Letre.
12. T: Saan mismo sa Letre?
S: Duon po sa Caltex Gasoline Station.
13. T: Duon ba ang tagpuan ninyo?
S: Opo.

14 T: Paanong nasakote ng mga alagad ng batas ang grupo ninyo?


S: Kasi po ay nagtipon-tipon kami sa Letre uli para manghold-up sa Malolos pero may naghudas pala na kasama namin
kaya't nasakote kami.
15. T: Sinong naghudas sa inyo?
S: Hindi po namin alam.
16. T: Ano ang mga armas na ginamit ninyo sa nasabing hold-up na may kasamang pagpatay?
S: Puro matalas po maliban kay Alex at Agustin na kapwa may baril.
17. T: Ano ba ang masasabi mo sa mga baril na nasa ibabaw ng aking mesa ngayon?
S: Iyan po mismo ang kargada nina Alex at Agustin. Iyun pong .38 ay kay Alex at .22 naman ang kay Agustin. (Affiant at
this juncture is pointing and referring to the handguns on top of this investigator's table particularly described
as one (1) .38 cal rev marked Squires Bingham with SN-1102937 loaded w/ four live ammos in its cylinder and
one (1) .22 cal rev. marked Commanche Chief with SN-105818 with four live ammos in its cylinder.)
18. T: Pansamantala ay wala muna akong itatanong sa iyo, may nais ka bang sabihin pa?
S: Wala na po.
19. T: Lalagdaan mo ba ang salaysay mong ito bilang patunay sa lahat ng nasasaad dito?
S: Opo. (End of Statement, 6:00 p.m./10 February 1990)[if !supportFootnotes][4][endif]

Prosecution witness Hilda Castro, a public school teacher and a victim in one of the hold-up incidents staged
by accused-appellant and his cohorts on the night of January 29, 1990, testified that at about 10:00 in the evening
of January 29, 1990, she boarded a passenger jeepney in Blumentritt bound for Sta. Cruz, Manila. As they
approached Tayuman Street, the culprits declared a hold-up and divested them of their personal belongings. Aside
from the hold-uppers, there were four passengers, including her. Hilda pointed to accused Eugenio as the one
who announced the hold-up; accused-appellant Ponseca as the one who divested her of her bag, and accused
Ladao and de Guzman as the persons who took their jewelries. The following day, she reported the incident to the
police.[if !supportFootnotes][5][endif]
On January 30, 1990, Dominga dela Cruz, widow of the victim, informed the authorities that her husband
was missing. On the same day, the police were able to locate the abandoned jeepney of the victim. Recovered
therefrom was Hilda Castros bag containing her address and telephone number.

On January 31, 1990, the cadaver of the victim was found in Dagat-Dagatan, Caloocan City. The Certificate
of Post Mortem Examination issued by Dr. Valentin Bernales of the National Bureau of Investigation revealed
that the cause of death of the victim was Asphyxia by Drowning.[if !supportFootnotes][6][endif]
For his defense, accused-appellant testified that on February 9, 1990, while he was in an eatery in Caloocan,
he was arrested by armed Caloocan policemen. Prior to his arrest, accused-appellant declared that he did not
know his four co-accused. He denied participation in the commission of the crime and claimed that he was
tortured and forced to sign an extra-judicial confession. Accused-appellant insisted that he does not know Atty.
Juanito Crisostomo and that he was never assisted by him during the custodial investigation.
Relying on accused-appellant and his co-accuseds extra-judicial confession, as well as on circumstantial
evidence, the trial court rendered the instant judgment of conviction. The dispositive portion thereof reads:
WHEREFORE, the guilt of accused ALEX DE GUZMAN y MAGAT, AGUSTIN LADAO y LORETO, HENRY
PONSECA y SORIANO, ANTONIO PANGANIBAN y AQUINO and VICTORIO EUGENIO y ROQUE having
been proven beyond reasonable doubt, this Court hereby adjudged them GUILTY for the crime of Robbery with
Homicide sentences them to suffer RECLUSION PERPETUA; to indemnify the heirs of the deceased Alfonso
dela Cruz the sum of Thirty Thousand (P30,000.00) Pesos; and to pay the sum of Ten Thousand Five Hundred
(P10,500.00) Pesos representing expenses for the wake and burial of herein victim.!
In addition, accused AGUSTIN LADAO y LORETO is likewise adjudged GUILTY for having violated
Presidential Decree No. 1866, as amended and hereby sentences him to suffer imprisonment of SEVENTEEN
(17) YEARS, FOUR (4) MONTHS and ONE (1) DAY as minimum to TWENTY (20) YEARS as maximum.!
SO ORDERED.[if !supportFootnotes][7][endif]!

Only Henry Ponseca appealed the trial courts decision, raising the following errors:
I

THE TRIAL COURT ERRED IN ALLOWING IN EVIDENCE THE SIGNED CONFESSION OF MR.
PONSECA AS THE SAME WAS OBTAINED BY FORCE, TORTURE AND DURESS.!
II

THE TRIAL COURT ERRED IN ALLOWING IN EVIDENCE THE CONFESSION ALLEGEDLY SIGNED
BY MR. PONSECA, AS THE SAME WAS EXTRACTED WITHOUT THE PRESENCE OF COUNSEL AND
WITHOUT THE ACCUSED BEING INFORMED OF HIS CONSTITUTIONAL RIGHTS.[if !supportFootnotes][8][endif]!
The contentions are without merit. Settled is the rule that once the prosecution has shown that there was
compliance with the constitutional requirement on pre-interrogation advisories, a confession is presumed to be
voluntary and the declarant bears the burden of proving that his confession was involuntary and untrue. The
burden is on the accused to destroy this presumption. 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.[if !supportFootnotes]
[9][endif]

In the case at bar, aside from his bare allegations, accused-appellant failed to present any proof that force and
violence were employed to coerce him to sign the extra-judicial confession. He did not submit himself to an
examination by a physician to bolster his claim. Neither did he complain of the alleged torture to his relatives or
to Prosecutor Neptali Aliposa when he swore to the truth of his statement. Likewise, he filed no criminal
complaint or administrative charge against the police officers concerned. As similarly held in People v. Fabro,[if !
supportFootnotes][10][endif] citing People v. Pia,[if !supportFootnotes][11][endif] all the foregoing circumstances sufficiently show that no
force or violence was employed on accused-appellant and that his confession was in fact given on his own
volition.
Moreover, this Court agrees with the Solicitor General, that the language of the confession and the details
thereof, could only come from a participant in the commission of the crime. Every aspect thereof jibes with the
sworn statements given by his co-accused. His confession reflects the manner in which the crime was committed;
the kind of weapon used; the place where they boarded the victims jeepney; the role of each accused; and their
relative positions inside the jeep. Furthermore, accused-appellant's admission that they threw the victim in an
estero filled with water confirms the result of the post mortem examination indicating that the victim drowned to
death.
Accused-appellant contends that the extra-judicial confession is unworthy of belief because it allegedly
accepts full responsibility for the crime charged. A guilty person, accused-appellant argued, seldom admits his

guilt fully and completely and has the tendency to explain or minimize his fault. A reading of accused-appellants
confession, however, discloses that, indeed, he tried to limit his liability by implying that he had no intention to
kill the victim as he was not aware that the estero where they threw the victim was filled with water. The
exculpatory tone of accused-appellants confession is demonstrative of its voluntariness rather than compulsion.[if !
supportFootnotes][12][endif]

Accused-appellants allegation that he and his co-accused were not assisted by counsel during the custodial
investigation is belied by the affidavit executed by Atty. Crisostomo attesting to the voluntariness of accusedappellants confession and the legal assistance he rendered during the investigation. Moreover, Atty. Crisostomo
testified that he informed accused-appellant and his co-accused of their constitutional rights and assisted them
during the custodial investigation.
Having been obtained without infringing the Constitutional safeguards, accused-appellants confession
constitutes evidence of the highest order since it is backed up by the strong presumption that no person of normal
mind would deliberately and knowingly confess to a crime unless he is prompted by truth and his conscience.[if !
supportFootnotes][13][endif]

It bears stressing that apart from the extra-judicial confession, the instant judgment of conviction is
supported by other competent evidence. Hilda Castros testimony, positively identifying accused-appellant and his
co-accused as the persons who robbed them between Tayuman and Blumentritt, is on all fours with the
confession of accused-appellant and that of his co-accused that after dumping the victim in the estero, they used
the latters jeepney and robbed the passengers they picked up in the Recto-Caloocan route and vice-versa. In fact,
Hilda Castros bag was recovered from the abandoned jeepney of the victim, which shows that accused-appellant
and his companions were the same persons who took away the jeepney of the victim and killed him, and
thereafter staged another hold-up where Hilda Castro happened to be one of the victims.
Prescinding from all the foregoing, we find no reason to alter the trial court's judgment of conviction. We
agree with the court a quo that accused-appellant's denial of his participation in the crime is unconvincing. The
assessment of a witness credibility is the sole province of the trial court.[if !supportFootnotes][14][endif] Being in the best
position to observe the deportment and demeanor of accused-appellant on the witness stand, the Court accords
full faith and credence to its findings and conclusions.

Under Art. 294(1) of the Revised Penal Code, the penalty for robbery with homicide is reclusion perpetua to
death. There being neither mitigating nor aggravating circumstance, the lesser penalty of reclusion perpetua
should be imposed on accused-appellant.
With respect to accused-appellants civil liability, the Court has consistently ruled that actual or compensatory
damages must be duly proved and established with reasonable degree of certainty, and courts cannot rely on
conjecture or guesswork on the fact and extent of damages.[if !supportFootnotes][15][endif] Upon examination of the records,
we find that the award of P10,500.00 as burial and wake expenses is without basis, and should therefore be
deleted. As to the indemnity for the death of the victim, the award should be increased to P50,000.00 consistent
with prevailing jurisprudence.[if !supportFootnotes][16][endif]
WHEREFORE, the Decision of the Regional Trial Court of Caloocan City, Branch 131, finding accusedappellant Henry Ponseca y Soriano guilty beyond reasonable doubt of the crime of robbery with homicide, and
sentencing him to suffer the penalty of reclusion perpetua, is AFFIRMED with the MODIFICATION that the
indemnity to the heirs of the victim should be increased to P50,000.00. The P10,500.00 awarded by the trial court
for wake and burial expenses is DELETED for lack of basis.
SO ORDERED.

!
!
!
!
!
!
!
!
!
!
!

G.R. No. 70091 December 29, 1986


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BRIGIDO ENCIPIDO, CHARLITO MANATAD, JESUS RUBIO, RUDY LUMARDA, JOSE CABAGERAN, EDDIE DE
LA PE;A, CRIS RAMIREZ, and JESUS or JOHN DOE, accused, BRIGIDO ENCIPIDO, CHARLITO MANATAD,
and EDDIE DE LA PE;A accused-appellants.
The Solicitor General for plaintiff-appellee.
Ignacio P. Moleta for accused-appellants.
MELENCIO-HERRERA, J.:
On March 30, 1982, Jose Lacumbes (hereinafter referred to as the DECEASED), a resident of Barangay Mabini in
the Municipality of Tubajon, Surigao del Norte, was found killed by his wife and children near the hut in their farm in
Sitio Capacohan in the same barangay. Post Mortem findings performed the following morning were:
l) Incised wound of the neck.
2) Eight [8] multiple stab wounds at the back; one [1] inch in length and two and a half [2] inches in depth.
3) Removed right external ear.
4) Contusions left lumbar region.
5) Both hands tied at the back with rattan.
CAUSE OF DEATH: Hemorrhage, severe, secondary to incised wounds of the neck and multiple stab wounds at the
back.
On February 2, 1983, in Criminal Case No. 14 of the Regional Trial Court, 10th Judicial Region, Branch 32 (the CASE
BELOW), the following eight (8) persons: (1) Brigido ENCIPIDO (2) Charlito MANATAD, (3) Eddie DE LA PENA
(hereinafter referred to as APPELLANTS), (4) Jesus Rubio, (5) Rudy Lumarda, (6) Jose CABAGERAN (7) Cris
Ramirez, and (8) Jesus or John Doe were charged with Murder for the death of the DECEASED. Only fly
APPELLANTS were tried, the other five accused having remained at large.
A review of the prosecution evidence presented in the CASE BELOW can begin with the testimony of Felicisimo
Alciso. This witness narrated that he went to the hut of the DECEASED in the afternoon of March 30, 1982, in order
to get some chickens which the latter had promised him but that, before reaching the hut, he heard a gunshot. He
stopped and saw that the DECEASED was being tied and subjected to fist blows. There were three persons who

mauled the DECEASED, while others stayed at a distance. Then, somebody struck the DECEASED with the butt of a
gun causing the latter to fall to the ground. He described that the hands of the DECEASED were tied at the back,
ENCIPIDO was behind the DECEASED, while MANATAD and DE LA PE;A were on the sides. 1 On orders of
ENCIPIDO also known as "Commander Tanga," DE LA PE;A, also called "Agosto de la Pena struck the Deceased's neck
with a bolo which almost I severed the latter's head. Frightened, witness Alciso fled from the scene.

After learning from friends and neighbors that those who had killed the DECEASED were detained, Alciso went to the
jail to find out for himself if they were among the group responsible for the death of the DECEASED, and because "I
was afraid that I will be the next one to be killed by them." He recognized APPELLANTS as among the suspects.
When he asked DE LA PENA why he was in jail, the latter answered that it was because they were the ones who had
beheaded the DECEASED. Alciso was unable to talk to ENCIPIDO and MANATAD.
Before Alciso there was another prosecution witness presented, Armando Bagacay whose testimony turned out to be
hearsay but which nevertheless is reproduced here to complete the evidence for the prosecution. He testified that
while he was massaging one of the accused, Rudy Lainarda on March 10, 1982, the latter told him that his ailment
was caused by witchcraft of the victim, Jose Lacumbes, and that he would seek the aid of the rebels to cut Lacumbes'
head. Four days later, Bagacay met one of those originally indicted, Jesus Rubio, who confided to him that they would
cut Lacumbes' neck for making Lumarda sick and for being responsible for all i the witchcraft in the community.
Subsequently, witness Bagacay heard of the death of Lacumbes at the hands of the rebels.
Two other prosecution witnesses supported testimony Alciso Jorge Ortega, INP Station Commander of Loreto,
Agusan del Norte, testified that when he had just arrived from Surigao City at about 2:30 o'clock P.M. of May 1, 1982,
and while still at the wharf, he was met by ENCIPIDO who introduced himself as "Commander Tanga," invited him
(Ortega) for a drink so he could talk to the latter personally. Having ac cepted the invitation, the two proceeded to a
store where ENCIPIDOs fourteen companions were already waiting. They introduced themselves as rebels and
offered to help the municipal government. In the course of the conversation, ENCIPIDO and DE LA PE;A disclosed
to the Station Commander that they were the ones who had beheaded the DECEASED, killed a certain Benny and
one Balaba, and who were responsible for all the killings in Dinagat Island.
The other prosecution witness, Mariano Espina, the Municipal Mayor of Loreto, testified that in the evening of that
same day of May 1, 1982, Station Commander Jorge Ortega informed him that Commander Tanga" and his men
wanted to pay him a courtesy call. They arrived at about 8:00 in the evening at his house. They introduced
themselves and placed their sidearms on a table as a sign of goodwill. At the time, there were about 2 policemen and
3 CHDF men outside the house but no arrests were made, nor were firearms confiscated, as a sign of reciprocal

goodwill "Commander Tanga" then confided to the Mayor his mission to cooperate with his administration as they had
heard that he was a good Mayor. He also informed the Mayor that he had been a member of the NPA since he was
13 years old; that he had already killed many people, including the DECEASED, so that the latter could no longer
harm other people with his witchcraft. For his part, DE LA PE;A brought out a sharp-pointed knife and tried to test its
sharpness, admitted having cut the neck of the DECEASED, and even showed the latter's ear, dried by that time.
The foregoing testimonies were buttressed from a most unexpected source. DE LA PE;A, to the surprise of
APPELLANT APPELLANTS' common counsel testified in open Court that, although he belonged to the group of
"Commander Tanga," the latter, MANATAD and a third individual merely forced him to join, threatening to kill him if he
refused; that he was with the group from March 28, 1982; that he was present on March 30, 1982 when "Commander
Tanga" and MANATAD killed the DECEASED but that he was merely standing by; that the duo were the first ones
apprehended, and after them he was also arrested by the CHDF.
In their defense, ENCIPIDO and MANATAD denied having I killed the victim and interposed the defense of alibi.
ENCIPIDO claimed that on March 30, 1982, he was sawing lumber from morning till 3:00 P.M. at Barangay Boa for a
certain Norberto Bukid. After working he rested in Bukid's house and did not leave the place. He further testified that
he did not know the DECEASED nor the Station Commander, nor the Municipal Mayor except when he surrendered
his .45 caliber pistol to the latter on May 2, 1982 after which he was arrested. He decided to surrender his pistol
because he was afraid he might be apprehended for having an unlicensed firearm. MANATAD and DE LA PENA were
also placed in jail with him. Thereafter, with seven others, he was taken to PC head- quarters at Surigao City where
they were severely maltreated and he was forced to sign an affidavit admitting that he is "Commander Tanga"
responsible for the killing of the DECEASED and other persons. He denied having admitted to the Station
Commander and to the Municipal Mayor his Identi ty as "Commander Tanga" or that he had killed the DECEASED
and other persons besides.
MANATAD, for his part, also denied all imputations against him, stating that he only came to know ENCIPIDO in jail;
that he did not know the DECEASED nor who killed him that during the whole day of March 30, 1982, he was plowing
the field tenanted by his mother-in-law at Barangay Malinao; that he started plowing early in the morning and stopped
at about 5:00 o'clock P.M. after which he stayed home. Barangay Captain Sergio Peniones partially corroborated
MANATAD's testimony by stating that he saw MANATAD plowing the i field in the morning of March 30, 1982.
MANATAD's wife, Bienvenida Edusma also testified that her husband stayed home after 5:00 o'clock P.M. of that day
as he was tired after the day's work; that, in fact, she quarreled with her husband because he refused to accompany

her in bringing their sick child to Tubajon on so that she went alone carrying the child even though she was then
seven months pregnant.
In a Decision promulgated by the Trial Court on December 5, 1984, APPELLANTS were found guilty of Murder and
sen tenced to reclusion perpetua to pay damages to the heirs of the DECEASED in the amount of P12,000.00 and to
pay 3/8 of the costs.
On behalf of APPELLANTS, counsel de officio filed a Motion for Reconsideration before the Trial Court on December
26, 1984, which the latter denied for having been filed more than fifteen (5) days after the promulgation date of
December 5, 1984. A Notice of Appeal filed before the then Intermediate Appellate Court was allowed as an appeal
not from the judgment but from the Order denying the Motion for Reconsideration. The penalty imposed by the Trial
Court being reclusion perpetual the appeal was indorsed to this instance, which we accepted in the interest of
substantial justice.
APPELLANTS raise the following Assignments of Error:
A
The lower Court erred in giving credence to the hearsay testimonies of prosecution witnesses Mariano Espina and
George Ortega basing therefrom its findings of conviction;
B
The lower Court erred in giving credence to the incredible and hearsay testimony of Felicisimo Alciso the alleged
eyewitness;
C
The lower Court erred in appreciating the so-called judicial admission of accused Eddie de la Pena as against his coaccused Brigido ENCIPIDO and Charlito Manatad;
D
The lower Court erred in convicting appellants Brigido ENCIPIDO and Charlito Manatad;
E
The lower Court erred in refusing to give due course to appellants' motion for reconsideration holding that it was filed
out of time when its judgment accordingly has become final;
F
The lower Court erred in convicting appellant Eddie de la Pe;a.
The evidence against APPELLANTS, taken en conjunto" justifies the finding of guilt beyond reasonable doubt.

1. Eyewitness Felicisimo Alciso positively Identified APPELLANT as among the group who led the DECEASED out of
his hut, with his hands tied behind his back, and thereafter mauled him and hacked his neck in the afternoon of March
30, 1982. The autopsy findings, particularly, the "incised wound of the neck," "contusions left lumbar region" and "both
hands tied at the back with rattan" confirm his description of what he had witnessed.
The defense contents, however, that said witness could not have recognized APPELLANTS.
It is true that at the start of his testimony, he had stated that he did not recognize the assailants. Thus:
Q. Who were the persons who mauled Jose Lacumbes during that time?
A. I saw that there were three of them but I could not recognize them; and there were some other persons who were
staying from a distance. 2
That testimony, however, referred to the early stage of the incident when the victim was being mauled. Subsequently,
in respect of the killing itself, the witness declared:
Fiscal Sandangal
Could you not recognize the three persons who killed Jose Lacumbes?
Witness:
I could recognize the three persons who killed Jose Lacumbes. 3
Then he described specifically:
Q. What else did you see, if any?
A. I saw that somebody was beating Jose Lacumbes with the use of a gun, and when Jose Lacumbes fell down,
Commander Tanga commanded Eddie de la Pena to cut the head of the victim but the head was not severed from the
body. 4
After pointing to the APPELLANTS in the Courtroom and replying to a question by the Court, Alciso further explained:
Court (addressing to the witness) When did you know the accused by their names?
WITNESS: In the jail your Honor. Before I met them in the jail I already recognized their faces but I just do not know
their names. Later on, I already know their names. 5
The defense further claims that Alciso could not have recognized the assailants because he was at a distance of 80
to 90 meters away from the scene of, the crime. In another instance, however, he said that the place of the killing was
about "20 arms length" from the hut of the DECEASED, while he was also about the same distance from the hut at
that time. The distances stated were merely his estimates and can be moderately exact or moderately inexact
specially with provincial folk. The important fact is that even from where he was, he witnessed the incident and his
description of it was corroborated by the admission of APPELLANTS, themselves and supported by the autopsy

findings on the cadaver. As this Court ruled in People vs. Hamtig et al., 6 the credibility of the testimony of a witness is not
affected by some flaws and inconsistencies in minor details, if as regards the main incident, the Identities of the malefactors,
the testimonies appear to be consistent with each other."

And although it was admittedly the first time that Alciso saw the malefactors, it does not necessarily follow that he
could not have recognized their faces. Persons observing a startling occurrence would strive to know the ones
involved specially where as in this case the DECEASED was not unknown to Alciso.
Next, it is argued that Alcisos testimony that he went to i the jail to verify the Identity of the malefactors is not worthy
of credence. Concededly, that actuation was unusual However, as the witness explained he did so because he feared
that he may be the next one to be Killed And the fact that he asked DE LA PE;A why the latter was in jail does not
necessarily lead to the conclusion, as alleged, that he had not witnessed the occurrence. A friendly question was
more likely to evoke candid answer.
There is nothing strange either in Alcisos not having mentioned the culprits by name in his sworn statement taken
more than three months after the incident, having referred to them merely as "five persons." As is wen known "an
affidavit is not prepared by the affiant himself Omissions and misunderstanding . are not infrequent, particularly under
circumstances of hurry and impatience." 7
ENCIPIDO and DE LA PE;A verbally acknowledged their guilt before Station Commander Ortega and Municipal
Mayor Espina when they individually boasted that they had killed the DECEASED so that the latter could no longer
harm other people with his witchcraft. They admitted that they had beheaded the DECEASED. DE LA PE;A even
showed the Mayor the DECEASED's dried ear which he had severed, Further, while I i in jail, DE LA PE;A also
admitted to Alciso when the latter I asked him the reason for their confinement, that it was because they were the
ones who had beheaded the DE CEASED. These oral confessions indicating complicity in the commission of the
crime with which they are charged are admissible in evidence against the declarants ENCIPIDO and DE LA PE;A
pursuant to Sections 22 8 and 29 9 of the Rules of Court. It is the fact that admissions were made by APPELLANTS and
against their own interest which gives them their evidentiary value. 10

It is also to be noted that APPELLANTS' extra-judicial confessions were independently made without collusion, are
Identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible
as circumstantial evidence against their co-accused implicated therein to show the probability of the latter's actual
participation in the commission of the crime. 11 They are also admissible as corroborative evidence against the others, it
being clear from other facts and circumstances presented that persons other than the declarants themselves participated in
the commission of the crime charged and proved. 12 They are what is commonly known as interlocking confession and

constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against
the declarants thereof.

And while it may be that ENCIPIDOS written statement before the PC on May 6, 1982 confessing to the killing of the
DECEASED was not presented at the trial no presumption of wilful suppression of evidence may be levelled against
the prosecution on account of its non-production. Apparently, for the prosecution, it was not important or necessary to
bolster up its case.
The argument that the testimonies of Station Commander Ortega, Mayor Espina, and Alciso as to the extrajudicial
admissions made to them respectively by ENCIPIDO and/or DE LA PE;A constitute hearsay, and thus inadmissible,
is not well taken. Oral confessions may be proved by any competent witness by whom they were heard, the same as
any other fact:
The rule is that any person, otherwise competent as a witness, who heard the confession, is competent to testify as to
the substance of what he heard if he heard and understood an of it. An oral confession need not be repeated
verbatim, but in such case it must be given in its substance. (23 C.J.S. 196).
Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that
he was present, heard, understood, and remembers the substance of the conversation or statement made by the
accused. (Underhill's Criminal Evidence, 4th Ed., Niblack, sec. 278, p. 551). 13
ENCIPIDOS and DE LA PE;A's extrajudicial acknowledgments of guilt to the Municipal Mayor and the INP Station
Commander are not necessarily incredible for, in their minds, they were not "confessing" but bragging of their
exploits" in the belief that they were saving the community from the witchcraft of the DECEASED and the evil doings
of some people. There is no proof whatsoever that the extrajudicial admissions in question were coerced or
concocted by those officials, who are responsible public officers and presumed to have regularly performed their
functions and against whose impartiality nothing has been proven. The fact that no arrest were made by them
immediately after the disclosures do not necessarily belie their testimonies since the spirit of "reciprocal goodwill"
pervaded the encounters. Arrests were made, however, the day after, or on May 2, 1982.
APPELLANTS had the opportunity during the trial to refute their verbal admissions as in fact, they denied having
made them, but their denials do not ring with truth in the face of other inculpating evidence.
3. The additional incriminating evidence was furnished by DE LA PE;A who, in open Court, under oath, testified that
he belonged to "Commander Tanga's" group, was with them since two days before the incident, and that he was with
ENCIPIDO and MANATAD when they killed the DECEASED. DE LA PE;AS declaration confirms the existence of
the group, their responsibility for the killing and, at the very least, his presence during the commission of the crime.

True, DE LA PE;A exculpated himself by stating that he was only forced to join the group and was merely standing
by when the killing occurred. A statement involving guilt does not, however, lose its character as a confession from
the fact that it was accompanied by statements of an exculpatory nature, 14 it being "the natural tendency of every
transgressor, with perhaps very rare exceptions, to acquit himself while he can do so from all liability that might arise from his
act, or at least mitigate it in the eyes of the law and those of his fellowmen". 15 Like other evidence, it must be weighed,
believed, or disbelieved in whole or in part, as reason may decide. Herein, the exculpatory statement has been proven false by
Alcisos credible account that upon ENCIPIDOS orders, DE LA PE;A hacked the DECEASED's neck with a bolo which almost
severed the latter's head, which testimony is confirmed by the autopsy finding of "incised wound on the neck." It was likewise
proven false by DE LA PE;As own extrajudicial admission to the Municipal Mayor that he had hacked the DECEASED's neck
and severed his ear, which is buttressed by the post mortem finding of "removed right external ear."

DE LA PE;AS judicial admission is admissible not only against him but against his co-accused ENCIPIDO and
MANATAD as well. The general rule that the confession of an accused may be given in evidence against him but that
it is not competent evidence against his co-accused, admits of exceptions. Thus, this Court has held that where
several accused are tried together for the same complaint, the testimony lawfully given by one during the trial
implicating the others is competent evidence against the latter. 16 "The extrajudicial admission or confession of a coconspirator out of court is different from the testimony given by a co-accused during trial. The first is admissible against the
declarant alone, but the second is perfectly admissible against his co-accused," 17 who had the right and opportunity to crossexamine the declarant. In this case, counsel de officio had such opportunity to cross-examine DE LA PE;A but did not avail of
it because in his own words:

Atty Moleta: I would like to inform the Honorable Court that I am in quandary It is my duty as counsel-de-oficio to be
candid to this Honorable Court. The witness has not actually followed what I intimated to him to be the nature of his
testimony. 18
In other words, the reason counsel refrained from cross examination was not because he was not given the
opportunity to do so but because DE LA PE;A did not follow counsel's bidding as to the nature of his testimony. The
coached testimony failed but the truth prevailed. Besides, defense counsel could have presented rebuttal evidence to
overcome DE LA PE;A's testimony if he had chosen to do so but did not.
Thus, MANATAD's direct participation in the commission of the crime with which he is charged has been established
by DE LA PE;A's declaration in open Court that "Commander Tanga and Charlito Manatad killed a certain person,"
and the corroborative testimony of Alciso who categorically testified that MANATAD was on one side of the
DECEASED, DE LA PE;A on the other and ENCIPIDO at the back when they perpetrated the offense with which

they are changed. In MANATAD's respect, therefore, it is not necessary to invoke conspiracy" to support his
conviction.
The defense of alibi separately interposed by ENCIPIDO and MANATAD cannot prevail over their positive
Identification by eyewitness Also by ENCIPIDOS verbal acknowledgments of guilt, and by DE LA PE;A's judicial and
extra- i judicial admission/confession, which are interlocking and ad-missible as against themselves and as against
the others whom they also implicated. Neither were ENCIPIDO and MANATAD able to prove that they were at some
place for such a period of time that it was impossible for them to have been at the scene of the crime at the time of its
commission. Barangay Boa where ENCIPIDO was allegedly sawing lumber was approximately 60 kilometers away, 19
and Barangay Malinao where MANATAD was supposedly plowing the field, about 12 kilometers, 20 from Barangay Mabini,
Tubajon, Surigao where the incident occurred.

In the last analysis, the core issue addresses itself to the credibility of witnesses, a matter that the Trial Court had
unequalled competence to consider and decide since it was in a vantage position to observe the conduct and
demeanor of the witnesses of both sides while testifying, an opportunity not afforded to Appellate Courts. Its findings
as to credibility should not be disturbed and are entitled to great weight unless there is some fact of record that has
been overlooked or the significance of which has been misconstrued, 21 which exceptions we find absent herein.
The last assigned error delving on the refusal of the Trial Court to give due course to appellants' Motion for
Reconsideration on the ground that the judgment had become final is no longer of any consequence since all the
grounds therefor have been elevated to and considered by this Court on appeal.
In fine, the threads of evidence woven together establish APPELLANTS' guilt to a moral certainty.
WHEREFORE, the judgment appealed from is hereby affirmed except as to the civil indemnity, which is hereby
increased to P30,000.00 in accordance with recent jurisprudence. With proportionate costs.
SO ORDERED.
Feria, Fernan, Narvasa, Alampay, Gutierrez, Jr., Cruz, Paras and Feliciano, JJ., concur.
Teehankee, C.J., reserves his vote.
Separate Opinions
YAP, J., dissenting:
I disagree with the majority opinion. This dissent will not alter the results, but there are two points I wish to stress.

Firstly, it was prejudicial error for the trial court, in a joint trial of the accused, to use the testimony of one of the
accused against the other accused, where the latter had no opportunity to cross-examine the former because all of
the accused were represented by one and the same counsel de oficio.
In the instant case, Eddie de la Pe;a one of the co-accused, testified in court that, under threat of being killed, he
was forced to join the group of the accused Brigido Encepido alias Commander Tanga, on March 28, 1982; that the
group forcibly took him along with them; and that he was present when they killed Jose Lacumbes on March 30,
1982. The trial court held that the testimony of De la Pe;a was admissible not only against him, but also against the
other co-accused. The court cited the doctrine that "if a defendant testifies as a witness in a joint trial against him and
his co-accused and admits his guilt and at the same time implicating the co-accused, the testimony is admissible
against the latter who may cross-examine him (U.S. v. Macamay, 36 Phil. 893; People v. Nakpil, 52 Phil. 985; People
v. Tundia L-2576, May 25, 1951)."
The trial court, in the first place, erred in applying the above doctrine since the accused Eddie de la Pe;a in his
testimony, did not admit his guilt. In other words, his declaration was not i an admission against interest, but is merely
an exculpatory statement. It was purely a self-serving statement, throwing the blame for the offense on the other coaccused; hence, it should not have been admitted as evidence against them.
Moreover, under the doctrine cited by the trial court, the testimony of an accused is admissible against his co-accused
who may cross-examine him. In the case at bar, the other co-accused, Brigido Encepido and Charlito Manatad did not
have the opportunity to cross-examine Eddie de la Pe;a. They were all represented by the same lawyer de oficio.
Counsel de oficio could not and did not cross-examine his own client, Eddie de la Pe;a who was not a mere witness
but also an accused testifying in his own behalf. Thus, when it became apparent that the interest of one accused was
in conflict with the interest of the other two co-accused, it should have been immediately obvious to the trial court that
the three accused could not be represented by one and the same counsel. The trial court should have suspended the
trial and appointed another counsel de oficio to represent the accused de la Pe;a or the other co-accused in order to
provide the latter the opportunity to cross-examine the former. Unfortunately, this was not done. Hence, for the trial
court to have considered the testimony of De la Pe;a against his co-accused was a serious prejudicial error.
Furthermore, the version of the killing given by De la Pe;a did not jibe with the version given by the principal
prosecution witness, Felicisimo Alciso who claimed that he saw the killing, nor with the autopsy report. Testifying on
cross-examination, De la Pe;a stated: 1
Q: How did they kin him?
A: They beat him; Commander Tanga kicked him then they shot him.

But the autopsy report 2 showed that the deceased had no bullet wounds but only stab wounds and incised wounds.
Secondly, it was grave error for the trial court to consider as evidence against the accused the supposed extrajudicial
oral confession or admission of guilt by the accused, where there were vital discrepancies in the testimonies of the
witnesses who were presented by the prosecution to establish the same. Police Commander Jorge Ortega testified
that Brigido Encepido told him that he was the one who beheaded Jose Lacumbes. 3 Mayor Mariano Espina, on the
other hand, testified that Eddie de la Pe;a told him that he was the one who beheaded the deceased Jose Lacumbes. 4 There
was, therefore, a conflict between the version of Espina and that of Ortega on the oral confession of the accused. Apparently,
the trial court did not notice this vital discrepancy. In fact, the court also overlooked another obviously untrue statement of
Mayor Espina when he testified categorically that the accused Eddie de la Pe;a not only admitted to him that he cut off the
two ears of the deceased and, in fact, showed him the two ears, already dried up, which he carried in his pocket. 5 This
testimony is obviously false because the autopsy showed that only one ear of the deceased was cut off. The autopsy also
showed that the neck of the deceased was hacked with a bolo, and yet, Mayor Espina, in his testimony, recounted vividly how,
in his presence, Eddie de la Pe;a brought out a sharp pointed knife which according to him he used in cutting "little by little"
the neck of the deceased. 6 These material discrepancies in the testimonies of Mayor Espina, as wen as the conflicting
versions between his testimony and that of Police Commander Ortega, were simply overlooked by the trial court. These
discrepancies cast a serious doubt on their testimonies that the accused orally confessed or admitted their guilt to them. Such
doubt should be resolved in favor of the accused.

Without the testimonies of Mayor Espina and Police Commander Jorge Ortega and that of the accused Eddie de la
Pe;a the only testimony that remains to support the judgment of the trial court is that of Felicisimo Alciso who
claimed to have witnessed the killing However, the testimony of this witness suffers from some serious flaws which
raise grave doubts as to its value. Hence, his testimony alone cannot be used as the sole basis for convicting the
accused.
(1) In this testimony, Felicisimo Alciso at first said that he could not recognize the person who killed the deceased
Jose Lacumbes, but later, upon prodding by the prosecutor, he changed his testimony and said he could recognize
three of them and pointed to the three accused who were present in court and who were the only ones in custody, the
other accused being at large and were never tried.
(2) He testified that he came to know the names of the killers when he visited them in jail after they were caught on
May 2, 1982. His testimony regarding this visit strains one's credulity. According to him, he asked Eddie de la Pe;a
why he was inside the jail; and the latter answered that he was inside the jail because they were the ones who
beheaded Jose Lacumbes. Why De la Pe;a should volunteer to confess Ms crime to a perfect stranger is incredible.

It is also rather hard to believe that Felicisimo Alciso after being supposedly told by a friend that he would be the next
one to be killed by the accused, would have the temerity to visit them in jail.
(3) Felicisimo Alciso executed an affidavit on July 13, 1982 in which he declared that he witnessed the killing of Jose
Lacumbes on March 30, 1982, but did not Identify who the killers were, although at the time when he executed the
affidavit, he was already supposed to know who the killers were, having visited them in jail shortly after their
apprehension on May 2, 1982.
In the light of all the above, it cannot be said that the evidence presented by the prosecution is convincing enough
and sufficient to establish the guilt of the accused with moral certainty.
It is true that the accused Encepido and Manatad relying on alibi as their defense, may have a weak case. But their
conviction should rest on the strength of the evidence of the prosecution, and not on the weakness of the defense.
The accused should, therefore, be acquitted since their guilt has not been established beyond reasonable doubt.
Separate Opinions
YAP, J., dissenting:
I disagree with the majority opinion. This dissent will not alter the results, but there are two points I wish to stress.
Firstly, it was prejudicial error for the trial court, in a joint trial of the accused, to use the testimony of one of the
accused against the other accused, where the latter had no opportunity to cross-examine the former because all of
the accused were represented by one and the same counsel de oficio.
In the instant case, Eddie de la Pe;a one of the co-accused, testified in court that, under threat of being killed, he
was forced to join the group of the accused Brigido Encepido alias Commander Tanga, on March 28, 1982; that the
group forcibly took him along with them; and that he was present when they killed Jose Lacumbes on March 30,
1982. The trial court held that the testimony of De la Pe;a was admissible not only against him, but also against the
other co-accused. The court cited the doctrine that "if a defendant testifies as a witness in a joint trial against him and
his co-accused and admits his guilt and at the same time implicating the co-accused, the testimony is admissible
against the latter who may cross-examine him (U.S. v. Macamay, 36 Phil. 893; People v. Nakpil, 52 Phil. 985; People
v. Tundia L-2576, May 25, 1951)."
The trial court, in the first place, erred in applying the above doctrine since the accused Eddie de la Pe;a in his
testimony, did not admit his guilt. In other words, his declaration was not i an admission against interest, but is merely

an exculpatory statement. It was purely a self-serving statement, throwing the blame for the offense on the other coaccused; hence, it should not have been admitted as evidence against them.
Moreover, under the doctrine cited by the trial court, the testimony of an accused is admissible against his co-accused
who may cross-examine him. In the case at bar, the other co-accused, Brigido Encepido and Charlito Manatad did not
have the opportunity to cross-examine Eddie de la Pe;a. They were all represented by the same lawyer de oficio.
Counsel de oficio could not and did not cross-examine his own client, Eddie de la Pe;a who was not a mere witness
but also an accused testify- ing in his own behalf. Thus, when it became apparent that the interest of one accused
was in conflict with the interest of the other two co-accused, it should have been immediately obvious to the trial court
that the three accused could not be represented by one and the same counsel. The trial court should have
suspended the trial and appointed another counsel de oficio to represent the accused de la Pe;a or the other coaccused in order to provide the latter the opportunity to cross-examine the former. Unfortunately, this was not done.
Hence, for the trial court to have considered the testimony of De la Pe;a against his co-accused was a serious
prejudicial error.
Furthermore, the version of the killing given by De la Pe;a did not jibe with the version given by the principal
prosecution witness, Felicisimo Alciso who claimed that he saw the killing, nor with the autopsy report. Testifying on
cross-examination, De la Pe;a stated: 1
Q: How did they kin him?
A: They beat him; Commander Tanga kicked him then they shot him.
But the autopsy report 2 showed that the deceased had no bullet wounds but only stab wounds and incised wounds.
Secondly, it was grave error for the trial court to consider as evidence against the accused the supposed extrajudicial
oral confession or admission of guilt by the accused, where there were vital discrepancies in the testimonies of the
witnesses who were presented by the prosecution to establish the same. Police Commander Jorge Ortega testified
that Brigido Encepido told him that he was the one who beheaded Jose Lacumbes. 3 Mayor Mariano Espina, on the
other hand, testified that Eddie de la Pe;a told him that he was the one who beheaded the deceased Jose Lacumbes. 4 There
was, therefore, a conflict between the version of Espina and that of Ortega on the oral confession of the accused. Apparently,
the trial court did not notice this vital discrepancy. In fact, the court also overlooked another obviously untrue statement of
Mayor Espina when he testified categorically that the accused Eddie de la Pe;a not only admitted to him that he cut off the
two ears of the deceased and, in fact, showed him the two ears, already dried up, which he carried in his pocket. 5 This
testimony is obviously false because the autopsy showed that only one ear of the deceased was cut off. The autopsy also
showed that the neck of the deceased was hacked with a bolo, and yet, Mayor Espina, in his testimony, recounted vividly how,

in his presence, Eddie de la Pe;a brought out a sharp pointed knife which according to him he used in cutting "little by little"
the neck of the deceased. 6 These material discrepancies in the testimonies of Mayor Espina, as wen as the conflicting
versions between his testimony and that of Police Commander Ortega, were simply overlooked by the trial court. These
discrepancies cast a serious doubt on their testimonies that the accused orally confessed or admitted their guilt to them. Such
doubt should be resolved in favor of the accused.

Without the testimonies of Mayor Espina and Police Commander Jorge Ortega and that of the accused Eddie de la
Pe;a the only testimony that remains to support the judgment of the trial court is that of Felicisimo Alciso who
claimed to have witnessed the killing However, the testimony of this witness suffers from some serious flaws which
raise grave doubts as to its value. Hence, his testimony alone cannot be used as the sole basis for convicting the
accused.
(1) In this testimony, Felicisimo Alciso at first said that he could not recognize the person who killed the deceased
Jose Lacumbes, but later, upon prodding by the prosecutor, he changed his testimony and said he could recognize
three of them and pointed to the three accused who were present in court and who were the only ones in custody, the
other accused being at large and were never tried.
(2) He testified that he came to know the names of the killers when he visited them in jail after they were caught on
May 2, 1982. His testimony regarding this visit strains one's credulity. According to him, he asked Eddie de la Pe;a
why he was inside the jail; and the latter answered that he was inside the jail because they were the ones who
beheaded Jose Lacumbes. Why De la Pe;a should volunteer to confess Ms crime to a perfect stranger is incredible.
It is also rather hard to believe that Felicisimo Alciso after being supposedly told by a friend that he would be the next
one to be killed by the accused, would have the temerity to visit them in jail.
(3) Felicisimo Alciso executed an affidavit on July 13, 1982 in which he declared that he witnessed the killing of Jose
Lacumbes on March 30, 1982, but did not Identify who the killers were, although at the time when he executed the
affidavit, he was already supposed to know who the killers were, having visited them in jail shortly after their
apprehension on May 2, 1982.
In the light of all the above, it cannot be said that the evidence presented by the prosecution is convincing enough
and sufficient to establish the guilt of the accused with moral certainty.
It is true that the accused Encepido and Manatad relying on alibi as their defense, may have a weak case. But their
conviction should rest on the strength of the evidence of the prosecution, and not on the weakness of the defense.
The accused should, therefore, be acquitted since their guilt has not been established beyond reasonable doubt.