3.2 Aggravating Circumstances 2

FIRST DIVISION
[G.R. No. 5292. August 28, 1909.]
THE UNITED STATES , plaintiff, vs . THE MORO MANALINDE , defendant.
Solicitor-General Harvey for plaintiff.

Ramon Diokno for defendant.
SYLLABUS
1. MURDER; ALEVOSIA; INTENT. — The fact that the victim of a treacherous

murder was not predetermined does not affect or alter the nature of the crime, when
the criminal intent which was carried out was to kill the rst two persons whom the
aggressor should meet at the place where he intended to commit the crimes.
2. ID.; MONEY, REWARD OR PROMISE; PREMEDITATION. — Even though in a
crime committed upon offer of money, reward, or promise, premeditation is sometimes
present, it must be borne in mind that the latter is not inherent in the former, and there
existing no incompatibility between the two, they being independent of each other,
premeditation can not necessarily be considered as included merely because an offer
of money, reward, or promise was made, for the latter might have existed without the
former.
3. ID.; CRIMINAL RESPONSIBILITY. — This case, wherein the accused made
up his mind to kill two undetermined persons, the rst whom he should meet on the
way, in compliance with the inducement of a third persons, is entirely different from that
of a criminal who, intending to kill a particular person, deprives of his life a person other
than the object of his criminal act; both deeds are equally punishable, but they are
different and are differently dealt with by the penal law.
DECISION
TORRES , J : p
Between 2 and 3 o'clock on the afternoon of the 19th of January, 1909, while
Juan Igual, a Spaniard, was seated on a chair in the doorway of Sousa's store in
Cotabato, Moro Province, he suddenly received a wound on the head delivered from
behind and in icted with a kris. Ricardo Doroteo, a clerk in the said store, who was
standing behind the counter, upon hearing the noise and the cry of the wounded man,
ran to his assistance and found him lying on the ground. Meanwhile the aggressor, the
Moro Manalinde, approached a Chinaman named Choa, who was passing along the
street, and just as the latter was putting down his load in front of the door of a store
and was about to enter, attacked him with the same weapon, in icting a severe wound
in the left shoulder, on account of which he fell to the ground. The Moro, who came
from the rancheria of Dupit and had entered the town carrying his weapon wrapped up
in banana leaves, in the meantime escaped by running away from the town. Both
wounded men, the Chinaman and the Spaniard, were taken to the hospital, where the
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former died within an hour, the record not stating the result of the wound in icted on
the Spaniard Juan Igual.
In view of the above a complaint was led by the provincial scal with the district
court charging Manalinde with the crime of murder, and proceedings having been
instituted, the trial judge, in view of the evidence adduced, rendered judgment on the 5th
of February of said year, sentencing the accused to the penalty of death, to indemnify
the heirs of the deceased in the sum of P1,000, and to pay the costs. The case has been
submitted to this court for review.
From the above facts fully substantiated in this case, it appears beyond doubt
that the crime of murder, de ned and punished by article 403 of the Penal Code, was
committed on the person of the Chinaman Choa, in that the deceased was
unexpectedly and suddenly attacked, receiving a deep cut on the left shoulder at the
moment when he had just put down the load that he was carrying and was about to
start for the door of the store in front of which he stopped for the purpose of entering
therein. As a result of the tremendous wound in icted upon him by the heavy and
unexpected blow, he was unable, not only to defend himself, apart from the fact that he
was unarmed, but even to ee from the danger, and falling to the ground, died in an
hour's time. It is unquestionable that by the means and form employed in the attack the
violent death of the said Chinaman was consummated with deceit and treachery
(alevosia), one of the ve qualifying circumstances enumerated in the aforesaid article
as calling for the greatest punishment.
When Manalinde was arrested he pleaded guilty and confessed that he had
perpetrated the crime herein mentioned, stating that his wife had died about one
hundred days before and that he had come from his home in Catumaldu by order of the
Datto Rajamudah Mupuck, who had directed him to go juramentado in Cotabato in
order to kill somebody, because the said Mupuck had certain grievances to avenge
against a lieutenant and a sergeant, the said datto further stating that if he, Manalinde,
was successful in the matter, he would give him a pretty woman on his return, but that
in case he was captured he was to say that he performed the killing by order of
Maticayo, Datto Piang, Tambal and Inug. In order to carry out his intention to kill two
persons in the town of Cotabato he provided himself with a kris, which he concealed in
banana leaves, and, traveling for a day and a night from his home, upon reaching the
town, attacked from behind a Spaniard who was seated in front of a store and,
wounding him, immediately after attacked a Chinaman, who was close by, just as the
latter was placing a tin that he was carrying on the ground and as he was about to enter
a store near by, cutting him on the left shoulder and eeing at once; he further stated
that he had no quarrel with the assaulted persons.
From the statements made by the accused his culpability as the sole-confessed
and self-convicted author of the crime in question has been unquestionably established,
nor can his allegation that he acted by order of Datto Mupuck and that therefore he was
not responsible exculpate him, because it was not a matter of proper obedience. The
excuse that he went juramentado by order of the said datto and on that account killed
only two persons, whereas if he had taken the oath of his own volition he would have
killed many more, because it is the barbarous and savage custom of a juramentado to
kill anyone without any motive or reason whatever, can not under any consideration be
accepted or considered under the laws of civilized nations; such exhibitions of ferocity
and savagery must be restrained, especially as the very people who up to the present
time have been practicing such acts are well aware that the established authorities in
this country can never allow them to go unpunished, and as has happened a number of
times in towns where juramentados are in the habit of appearing, the punishment of the
author has followed every crime so committed.
In the commission of the crime of murder the presence of aggravating
circumstances 3 and 7 of article 10 of the Penal Code should be taken into
consideration in that promise of reward and premeditation are present, which in the
present case are held to be generic, since the crime has already been quali ed as
committed with treachery because the accused confessed that he voluntarily obey the
order given him by Datto Mupuck to go juramentado and kill some one in the town of
Cotabato, with the promise that if he escaped punishment he would be rewarded with a
pretty woman. Upon complying with the order the accused undoubtedly acted of his
own violation and with the knowledge that he would in ict irreparable injury on some of
his fellow-beings, depriving them of the life without any reason whatever, well knowing
that he was about in commit a most serious deed which the laws in force in this country
and the constituted authorities could by no means permit. Datto Mupuck, who ordered
and induced him to commit the crimes, as well as the accused knew perfectly well that
the might be caught and punished in the act of committing them.
As to the other circumstance it is also unquestionable that the accused, upon
accepting the order and undertaking the journey in order to comply therewith,
deliberately considered and carefully and thoughtfully meditated over the nature and
the consequences of the acts which, under orders received from the said datto, he was
about to carry our, and to that end provided himself with weapon, concealing it by
wrapping it up, and started on a journey of a day and a night for the sole purpose of
taking the life of two unfortunate persons whom he did not know, and with whom he
had never had any trouble; nor did there exist any reason which, to a certain extent,
might warrant hi perverse deed. The fact that the arrangement between the instigator
and the tool considered the killing of unknown persons, the rst encountered, does not
bar the consideration of the circumstance of premeditation. The nature and the
circumstances which characterize the crime, the perversity of the culprit, and the
material and moral injury are the same, and the fact that the victim was not
predetermined does not affect nor alter the nature of the crime. The person having
been deprived of his life by deeds executed with deliberate intent, the crime is
considered a premeditated one as the rm and persistent intention of the accused
from the moment, before said death, when he received the order until the crime was
committed is manifestly evident. Even though in a crime committed upon offer of
money, reward or promise, premeditation is sometimes present, the latter not being
inherent in the former, and there existing no incompatibility between the two,
premeditation can not necessarily be considered as included merely because an offer
of money, reward or promise was made, for the latter might have existed without the
former, the one being independent of the other. In the present case there can be no
doubt that after the crime was agreed upon by means of a promise of reward, the
criminal by his subsequent conduct showed a persistency and rm intent in his plan to
carry out the crime which he intentionally agreed to execute, it being immaterial whether
Datto Mupuck did or did not conceive the crime, once Manalinde obeyed the
inducement and voluntarily executed it.
The facts in this case are quite different from those in the proceedings instituted
by the United States vs. Caranto et al., wherein the decision on page 256 of Volume IV
of the Philippine Reports was rendered, as may be seen from the mere perusal of the
statement of facts. It is also different from the case where a criminal who has made up
his mind to kill a certain individual kills a person other than the object of his criminal
intent. On going to Cotabato the Moro Manalinde intended to and did kill the rst two
persons he encountered, and the fact that the victim was not predetermined does not
alter the nature, conditions, or circumstances of the crime, for the reason that to cause
the violent death of a human being without any reasonable motive is always punishable
with a more or less grave penalty according to the nature of the concurrent
circumstances.
For the above reasons and in view of the fact that no mitigating circumstance is
present to neutralize the effects of the aggravating ones, it is our opinion that the
judgment appealed from should be a rmed with costs, provided however, that the
penalty imposed on the culprit shall be executed in accordance with the provisions of
Acts Nos. 451 and 1577, and that in the event of a pardon being granted he shall
likewise be sentenced to suffer the accessory penalties imposed by article 53 of the
Penal Code. So ordered.
Arellano, C.J., Johnson, Carson and Moreland, JJ., concur.

EN BANC
[G.R. No. 94308. June 16, 1994.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. RUBEN E. ILAOA

and ROGELIO E. ILAOA , accused-appellants.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; REQUISITES; NOT

PRESENT IN CASE AT BAR. — To warrant a conviction on the basis of circumstantial
evidence, three requisites must concur: (a) there must be more than one circumstance; (b)
the circumstances from which the inferences are derived are proven; and, (c) the
combination of all the circumstances is such as to prove the guilt of the accused beyond
reasonable doubt. In the case at bench, it does not require much analysis to conclude that
the circumstance relied upon to establish Rogelio Ilaoa's guilt, i.e., the alleged dragging of
the deceased to his brother's apartment, is totally inadequate for a conviction, having
miserably failed to meet the criteria. This is especially so where the veracity of such
circumstance is even open to question. While Antonio Ramos and Abdulia Logan testi ed
that Rogelio Ilaoa helped his brother drag the deceased to his apartment, Eustancia Bie
who claimed to have witnessed the same incident positively testi ed that it was Ruben
Ilaoa and Julius Eliginio who did so. Rogelio Ilaoa was not mentioned. Not having been
adequately established, in addition to being uncorroborated, such circumstance alone
cannot be the basis of Rogelio's conviction.
2. ID.; ID.; MURDER; CAN BE COMMITTED FOR NO REASON AND REGARDLESS
OF FRIENDSHIP. — The fact that appellant quarreled with the deceased, then mauled and
pulled him to the apartment where the latter was last seen alive, in addition to borrowing a
tricycle which was found with bloodstains when returned, su ciently point to Ruben as the
culprit responsible for the crime. The fact that the deceased was his compadre, hence,
presumably would have no motive to kill the latter, is not enough to exculpate appellant. It
is a matter of judicial knowledge that persons have been killed or assaulted for no
apparent reason at all, and that friendship or even relationship is no deterrent to the
commission of a crime.
3. CRIMINAL LAW; MURDER; QUALIFYING CIRCUMSTANCES; NOT PRESENT IN
CASE AT BAR; ONLY HOMICIDE COMMITTED. — We hold appellant liable only for homicide,
not murder, on the ground that the qualifying circumstances alleged in the information,
namely, abuse of superior strength, cruelty and evident premeditation, were not su ciently
proved to be appreciated against appellant. Abuse of superior strength cannot be
considered because there was no evidence whatsoever that appellant was physically
superior to the deceased and that the former took advantage of such superior physical
strength to overcome the latter's resistance to consummate the offense. The fact that
Nestor de Loyola's decapitated body bearing forty-three (43) stab wounds, twenty-four
(24) of which were fatal, was found dumped in the street is not su cient for a nding of
cruelty where there is no showing that appellant Ruben Ilaoa, for his pleasure and
satisfaction, caused Nestor de Loyola to suffer slowly and painfully and in icted on him
unnecessary physical and moral pain. Number of wounds alone is not the criterion for the
appreciation of cruelty as an aggravating circumstances. Neither can it be inferred from
the mere fact that the victim's dead body was dismembered. Evident premeditation
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cannot likewise be considered. There is nothing in the records to show that appellant, prior
to the night in question, resolved to kill Nestor de Loyola, nor is there proof to show that
such killing was the result of meditation, calculation or resolution on his part. On the
contrary, the evidence tends to show that the series of circumstances which culminated in
the killing constitutes an unbroken chain of events with no interval of time separating them
for calculation and meditation. Absent any qualifying circumstance, Ruben Ilaoa should
only be held liable for homicide.
4. ID.; HOMICIDE; PROPER PENALTY IN CASE AT BAR. — The penalty prescribed
for homicide in Art. 249 of the Revised Penal Code is reclusion temporal. Applying the
Indeterminate Sentence Law, and in the absence of any mitigating or aggravating
circumstances, the maximum shall be taken from the medium period of reclusion
temporal, which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17)
years and four (4) months, while the minimum shall be taken from the penalty next lower in
degree, which is prision mayor, in any of its periods, the range of which is six (6) years and
one (1) day to twelve (12) years.
5. ID.; ID.; CIVIL INDEMNITY THEREOF. — In line with present jurisprudence, the
civil indemnity xed by the court a quo for the death of Nestor de Loyola is increased from
P30,000.00 to P50,000.00.
DECISION
BELLOSILLO , J : p
Pfc. Reynaldo P. Angeles was dispatched in the early morning of 5 November 1987
to Tinio St., Sta. Maria Phase I, Balibago, Angeles City, where the decapitated body of a
man, later identi ed through his voter's identi cation card as Nestor de Loyola, was found
in a grassy portion thereof. Apart from the decapitation, the deceased bore forty-three
(43) stab wounds in the chest as well as slight burns all over the body. The head was found
some two (2) feet away from the corpse.
Five persons, Ruben E. Ilaoa, Rogelio E. Ilaoa, Rodel E. Ilaoa, Julius Eliginio and Edwin
Tapang, were charged for the gruesome murder of Nestor de Loyola. However, only the
brothers Ruben and Rogelio stood trial since the other accused escaped and were never
apprehended.
On 15 June 1990, the Regional Trial Court of Angeles City found Ruben and Rogelio
guilty of murder with the attendant circumstances of evident premeditation, abuse of
superior strength and cruelty, and imposed upon them the penalty of "life imprisonment." 1
The conviction was based on the following circumstantial evidence: LLjur
One. The deceased Nestor de Loyola was seen at about eleven o'clock in the evening
of 4 November 1987, in a drinking session with his compadre Ruben Ilaoa together with
Julius Eliginio, Edwin Tapang and a certain "Nang Kwang" outside Ruben's apartment. 2
Two. The drunken voices of Ruben and Nestor engaged in an apparent argument
were later on heard. 3 Nestor was then seen being kicked and mauled by Ruben and his
brother Rodel, Julius Eliginio and Edwin Tapang. 4 Nestor was crying all the while, "Pare,
aray, aray!" Afterwards, Nestor, who appeared drunk, was seen being "dragged" 5 into
Ruben Ilaoa's apartment. Nestor was heard saying, "Pare, bakit ninyo ako ginaganito, hirap
na hirap na ako!" 6
Three. Ruben Ilaoa and Julius Eliginio borrowed Alex Villamil's tricycle at about two
o'clock the following morning allegedly for the purpose of bringing to the hospital a
neighbor who was about to give birth. Ruben was seen driving the tricycle alone, with a
sack which looked as though it contained a human body, placed in the sidecar. The tricycle
was returned an hour later to Alex who noticed bloodstains on the oor. The latter thought
that they were those of the pregnant woman.
Four. Blood was found on Ruben's shirt when he was asked to lift it during the
investigation by the police. 7 Moreover, Ruben's hair near his right forehead was found
partly burned and his shoes were splattered with blood. 8 Susan Ocampo, Ruben's live-in
partner, was likewise seen in the early morning of 5 November 1987 sweeping what
appeared to be blood at the entrance of their apartment. 9
In this appeal, brothers Ruben and Rogelio Ilaoa argue for their acquittal. They
contend that the circumstantial evidence relied upon by the trial court for their conviction
failed to establish their guilt beyond reasonable doubt. Speci cally, they assail the nding
of evident premeditation, abuse of superior strength and cruelty as totally unwarranted. LLjur
We a rm Ruben Ilaoa's guilt having been satisfactorily established by the evidence

on hand, albeit circumstantial. However, we reverse the conviction of Rogelio as we nd it
patently baseless.
In finding Rogelio guilty of murder, the court a quo relied solely on the testimony that
he helped his brother Ruben drag Nestor de Loyola inside Ruben's apartment where the
deceased was last seen alive. Apart from such testimony, however, there is nothing else to
link Rogelio to the killing.
To warrant a conviction on the basis of circumstantial evidence, three requisites
must concur: (a) there must be more than one circumstance; (b) the circumstances from
which the inferences are derived are proven; and, (c) the combination of all the
circumstances is such as to prove the guilt of the accused beyond reasonable doubt. 1 0 In
the case at bench, it does not require much analysis to conclude that the circumstance
relied upon to establish Rogelio Ilaoa's guilt, i.e., the alleged dragging of the deceased to
his brother's apartment, is totally inadequate for a conviction, having miserably failed to
meet the criteria. This is especially so where the veracity of such circumstance is even
open to question. While Antonio Ramos and Abdulia Logan testi ed that Rogelio Ilaoa
helped his brother drag the deceased to his apartment, Eustancia Bie who claimed to have
witnessed the same incident positively testi ed that it was Ruben Ilaoa and Julius Eliginio
who did so. 1 1 Rogelio Ilaoa was not mentioned. Not having been adequately established,
in addition to being uncorroborated, such circumstance alone cannot be the basis of
Rogelio's conviction.
Ruben's case, however, is a totally different matter. Unlike that of his brother, Ruben
Ilaoa's fate was most de nitely assured by the unbroken chain of circumstances which
culminated in the discovery of Nestor de Loyola's decapitated body in the early morning of
5 November 1987.
As found by the trial court, in the late evening of 4 November 1987, appellant Ruben
Ilaoa was engaged in a drinking session with the deceased Nestor de Loyola together with
several others. Ruben was heard arguing with Nestor. A few moments later, Ruben mauled
and kicked the deceased with the help of their drinking companions just outside Ruben's
apartment. As the deceased cried "Aray! Aray!" and "Pare, bakit 'nyo ako ginaganito? Hirap
na Hirap na ako!" appellant dragged the deceased with the help of Julius Eliginio to the
apartment from where a man's cries were continued to be heard later. To further seal the
case against him, Ruben borrowed Alex Villamil's tricycle at two o'clock in the morning of 5
November 1987 on the pretext that a neighbor was about to give birth and had to be
rushed to the hospital. However, he was seen driving the tricycle alone with a sack placed
in the sidecar. The sack looked as if it contained a human body. 1 2 Then, an hour later, or at
three o'clock in the morning, the tricycle was returned with bloodstains on the floor.
For his defense, appellant Ruben Ilaoa does not dispute the testimony of an
eyewitness that he was driving the tricycle at past two o'clock in the morning with the sack
in the sidecar. However, he claims that the sack contained buntot ng pusa, a local term for
marijuana, not a human body, which he delivered to a designated place in Fields Avenue as
a favor to his compadre Nestor de Loyola whom he could not refuse. Moreover, it was the
vomit discharged by his drinking companions that was being swept clean by his girlfriend
at the entrance of their apartment in the early morning of 5 November 1987, not blood as
the witnesses asseverated. LLphil
We nd the version of the prosecution more persuasive than the defense. The fact
that appellant quarreled with the deceased, then mauled and pulled him to the apartment
where the latter was last seen alive, in addition to borrowing a tricycle which was found
with bloodstains when returned, su ciently point to Ruben as the culprit responsible for
the crime. The fact that the deceased was his compadre, hence, presumably would have no
motive to kill the latter, is not enough to exculpate appellant. It is a matter of judicial
knowledge that persons have been killed or assaulted for no apparent reason at all, 1 3 and
that friendship or even relationship is no deterrent to the commission of a crime. 1 4
If we are to believe appellant Ruben, we will not be able to account for the blood
found on the oor of the tricycle after it was brought back to the owner. Ruben himself
count not explain away such testimony for he belied the excuse that the tricycle was
needed to rush a pregnant woman to the hospital, which was the explanation he gave to
Alex Villamil when he borrowed it. We cannot even consider that the story about the blood
on the tricycle was simply concocted by Alex Villamil to incriminate Ruben because the
latter was his friend, as Ruben himself has admitted. 1 5 In fact he could think of no reason
for Alex Villamil to testify falsely against him. 1 6
Despite the foregoing, however, we hold appellant liable only for homicide, not
murder, on the ground that the qualifying circumstances alleged in the information, namely,
abuse of superior strength, cruelty and evident premeditation, were not su ciently proved
to be appreciated against appellant.
Abuse of superior strength cannot be considered because there was no evidence
whatsoever that appellant was physically superior to the deceased and that the former
took advantage of such superior physical strength to overcome the latter's resistance to
consummate the offense. 1 7 The fact that Nestor de Loyola's decapitated body bearing
forty-three (43) stab wounds, twenty-four (24) of which were fatal, 1 8 was found dumped in
the street is not su cient for a nding of cruelty where there is no showing that appellant
Ruben Ilaoa, for his pleasure and satisfaction, caused Nestor de Loyola to suffer slowly
and painfully and in icted on him unnecessary physical and moral pain. 1 9 Number of
wounds alone is not the criterion for the appreciation of cruelty as an aggravating
circumstances. 2 0 Neither can it be inferred from the mere fact that the victim's dead body
was dismembered. 2 1 Evident premeditation cannot likewise be considered. There is
nothing in the records to show that appellant, prior to the night in question, resolved to kill
Nestor de Loyola, nor is there proof to show that such killing was the result of meditation,
calculation or resolution on his part. On the contrary, the evidence tends to show that the
series of circumstances which culminated in the killing constitutes an unbroken chain of
events with no interval of time separating them for calculation and meditation. Absent any
qualifying circumstance, Ruben Ilaoa should only be held liable for homicide. Cdpr
The penalty prescribed for homicide in Art. 249 of the Revised Penal Code is
reclusion temporal. Applying the Indeterminate Sentence Law, and in the absence of any
mitigating or aggravating circumstances, the maximum shall be taken from the medium
period of reclusion temporal, which is fourteen (14) years, eight (8) months and one (1)
day to seventeen (17) years and four (4) months, while the minimum shall be taken from
the penalty next lower in degree, which is prision mayor, in any of its periods, the range of
which is six (6) years and one (1) day to twelve (12) years.
In line with present jurisprudence, the civil indemnity xed by the court a quo for the
death of Nestor de Loyola is increased from P30,000.00 to P50,000.00.
WHEREFORE, the judgment nding accused RUBEN E. ILAOA guilty beyond
reasonable doubt is AFFIRMED but only for homicide, instead of murder. Consequently, he
is sentenced to an indeterminate prison term of eight (8) years, ten (10) months and
twenty (20) days of prision mayor medium, as minimum, to sixteen (16) years, four (4)
months and ten (10) days of reclusion temporal medium as maximum. In addition,
accused-appellant RUBEN E. ILAOA is ordered to pay the heirs of Nestor de Loyola
P50,000.00 as civil indemnity and, as xed by the court a quo, P46,765.00 as actual
damages, P10,000.00 as reasonable attorney's fees and expenses of litigation, and
P10,000.00 for moral damages.
Accused-appellant ROGELIO E. ILAOA, however, is ACQUITTED of the crime charged
for obvious insufficiency of evidence.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ ., concur.
Footnotes
1. Decision penned by judge Reynaldo B. Daway, Regional Trial Court of Angeles City,
Branch 58, Rollo, pp. 81-88.
2. TSN, 17 October 1989, pp. 16-17.
3. TSN, 4 May 1988, p. 31; 17 October 1989, p. 11.

4. TSN, 14 November 1989, pp. 22-23.
5. TSN, 4 May 1988, pp. 34-36; 7 November 1989, pp. 19-21.

6. TSN, 13 April 1988, p. 9; 7 November 1989, p. 22.
7. TSN, 24 October 1989, p. 20.
8. TSN, 13 April 1988, pp. 14-15.

9. TSN, 4 May 1988, p. 42.
10. Sec. 4, Rule 133, Rules of Court.
11. TSN, 7 November 1989, pp. 19-21.

12. TSN, 4 May 1988, p. 38; Original Records, p. 61.
13. People v. Basadre, No. L-36383, 17 April 1984, 128 SCRA 641, 648; People v. Reyno,
No. L-19071, 30 April 1965, 13 SCRA 647, 651-652.
14. People v. Bicog, G.R. No. 76529, 19 July 1990, 187 SCRA 556, 564.
15. TSN, 5 January 1990, p. 30.
16. Ibid.
17. People v. Montilla, G. R. No. 95048, 3 July 1992, 211 SCRA 119, 128; People v.
Canciller, G. R. No. 97296, 4 March 1992, 206 SCRA 827, 833; People v. Jimenez, Jr., G.
R. No. 84276, 13 February 1992, 206 SCRA 214, 222.
18. TSN, 4 May 1988, pp. 12-13; Original Records, pp. 35-36.
19. People v. Luna, No. L-28812, 31 July 1974, 58 SCRA 198, 209; People v. Llamera, Nos.
L-21604-5-6, 25 May 1973, 51 SCRA 48, 60.
20. People v. Tonog, Jr., G. R. No. 94533, 4 February 1992, 205 SCRA 772, 782; People v.
Manzano, Nos. L-33643-4, 31 July 1974, 58 SCRA 250, 262.
21. People v. de Pascual, No. L-32512, 31 March 1980, 96 SCRA 722, 738.

THIRD DIVISION
[G.R. No. 124319. May 13, 1998.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . GARI BIBAT Y

DESCARGAR , defendant-appellant.
The Solicitor General for plaintiff-appellee.

James B. Pajares for accused-appellant.
SYNOPSIS
Appellant Gary Bibat y Descargar was found guilty of the crime of murder by the
Regional Trial Court of Manila. In this appeal, appellant raises the following issues:
credibility of prosecution witnesses, defense of alibi and the presence or absence of the
qualifying circumstance of evident premeditation. Appellant theorizes that prosecution
witness Nona Cinco was lying when she testi ed that she was taking bets for a PBA game
on October 14, 1992, a Wednesday despite the fact that PBA games are held only on
Tuesdays, Thursdays, and Saturdays. The Supreme Court ruled that the maxim or rule
"falsus in unos, falsus in omnibus" does not lay down a categorical test of credibility. It is
not a positive rule of universal application and therefore should not be applied to portions
of the testimony corroborated by other evidence particularly where the false portions
could be innocent mistakes. Appellant's alibi failed to convince the Court that it was
physically impossible for him to be at the scene of the crime at G. Tuazon cor. Ma. Cristina
Sts., Sampaloc, Manila considering that the two places are just near each other. Moreover,
positive identi cation of the appellant as the perpetrator of the crime prevails over alibi.
On the issue of the presence or absence of evident premeditation, the Court ruled that the
same was thoroughly and su ciently established. The determination or conception of the
plan to kill the victim could be well deduced from the outward circumstances that
happened on the day of the killing. cTCADI
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; DELAY IN

DIVULGING THE NAME OF THE PERPETRATOR OF THE CRIME DOES NOT IMPAIR
CREDIBILITY IF REASON THEREFOR IS SUFFICIENTLY EXPLAINED; CASE AT BAR. — It was
thus natural for witness Nona Cinco to just have stayed at the sideline. She is a woman
who could not have prevented the armed appellant from stabbing the victim, anyway. The
suddenness of the happening and Nona Cinco's fear for her own life must have prevented
her from shouting for help. Delay in divulging the name of the perpetrator of the crime, if
su ciently reasoned out, does not impair the credibility of a witness and his testimony nor
destroy its probative value. It has become judicial notice that fear of reprisal is a valid
cause for the momentary silence of the prosecution witness.
2. ID.; ID.; ID.; THE MAXIM " FALSUS IN UNOS, FALSUS IN OMNIBUS " IS NOT A
POSITIVE RULE OF LAW OF UNIVERSAL APPLICATION; RULE SHOULD NOT BE APPLIED
TO PORTIONS OF THE TESTIMONY CORROBORATED BY OTHER EVIDENCE
PARTICULARLY WHERE THE FALSE PORTIONS COULD BE INNOCENT MISTAKES. — "The
maxim or rule 'falsus in unos, falsus in omnibus' does not lay down a categorical test of
credibility. It is not a positive rule of law of universal application. It should not be applied to
portions of the testimony corroborated by other evidence particularly where the false
portions could be innocent mistakes. Moreover, the rule is not mandatory but merely
sanctions a disregard of the testimony of the witness if the circumstances so warrant. To
completely disregard all the testimony of a witness on this ground, his testimony must
have been false as to a material point, and the witness must have a conscious and
deliberate intention to falsify a material point." ( People v. Pacapac, 7 September 1995, 248
SCRA 77, 89)
3. REMEDIAL LAW; EVIDENCE; ALIBI; UNAVAILING IN CASE AT BAR. — Positive
identi cation, where categorical and consistent and without any showing of ill motive on
the part of the eyewitness testifying on the matter, prevails over alibi and denial which, if
not substantiated by clear and convincing evidence, are negative and self-serving evidence
undeserving of weight in law. SATDEI
4. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; EVIDENT PREMEDITATION;

ELEMENTS AND ESSENCE THEREOF. — There is evident premeditation when the following
requisites are met: 1. The time when the offender determined (conceived) to commit the
crime; 2. An act manifestly indicating that the culprit has clung to his determination; and 3.
A su cient lapse of time between the determination and execution to allow him to re ect
upon the consequences of his act. The essence of premeditation is that the execution of
the criminal act is preceded by cool thought and reflection upon the resolution to carry out
the criminal intent during the space of time sufficient to arrive at a calm judgment.
5. ID.; ID.; ID.; SUFFICIENTLY ESTABLISHED IN CASE AT BAR. — Even without the
testimony of Rogelio Robles, the presence of the rst requisite of evident premeditation
appears to have been thoroughly and su ciently established. The determination or
conception of the plan to kill the victim could be deduced from the outward circumstances
that happened on the fateful day of October 14, 1992. Records show that at 11:30 in the
morning of October 14, 1992, prosecution witness Nona Cinco saw the accused with
some companions at Funeraria Gloria. She personally heard the plan to kill someone.
Another prosecution witness, Florencio Castro, who works at the Funeraria Gloria also saw
the group of Gari Bibat in the said place. At around 1:30 in the afternoon, Nona Cinco saw
the appellant for the second time. She saw the appellant hurry towards the victim, take a
pointed thing from a notebook and with the use of such weapon, stab the victim on the
chest. These overt acts clearly evinced that the appellant clung to his resolution to kill the
victim. From the time Nona Cinco heard the plan to kill someone at 11:30 up to the killing
incident at 1:30 in the afternoon of the same day, there was a su cient lapse of time for
appellant to re ect on the consequences of his dastardly act. As held in the case of People
vs. Dumdum "the killing of the deceased was aggravated by evident premeditation,
because the accused conceived of the assault at least one hour before its perpetration." In
the case under examination, two hours had elapsed from the time appellant clung to his
determination to kill the victim up to the actual perpetration of the crime. IHcSCA
DECISION
PURISIMA , J : p
Appeal interposed by accused Gari Bibat y Descargar from the judgment rendered
by Branch IV of the Regional Trial Court of Manila, nding him guilty of the crime of Murder
in Criminal Case No. 93-123648.
Filed on July 23, 1993 by Assistant Prosecutor Alfeo T. Siccuon, the Information
indicting accused for Murder, alleges: LLphil
"That on or about October 14, 1992, in the City of Manila, Philippines, the
said accused, conspiring and confederating with others whose true names,
identities and present whereabouts are still unknown and helping one another did
then and there willfully, unlawfully and feloniously, with intent to kill and with
treachery and evident premeditation, attack, assault and use personal violence
upon the person of one LLOYD DEL ROSARIO Y CABRERA, by then and there
stabbing him with bladed weapon hitting him on the chest and abdomen, thereby
in icting upon the latter mortal stab wounds, which are necessarily fatal and
which where the direct and immediate cause of his death thereafter.
Contrary to law."
With the accused entering a negative plea upon arraignment thereunder, with
assistance of the counsel de o cio, Atty. Alejandro G. Yrreborre, Jr., trial ensued with
the prosecution presenting Nona Avila Cinco, PO3 Julian Bustamante, Florencio Castro
and Rogelio Robles, as its witnesses.
Aside from accused, Marte Soriano, Lino Asuncion III, and Rogelio Robles (who was
recalled to the stand by the defense), testified for the defense.
As synthesized by the trial court of origin:
"From the record and evidence presented, it appears that the accused Gari
Bibat stabbed to death one Lloyd del Rosario on October 12, 1992 at around 1:30
p.m. along G. Tuazon cor. Ma. Cristina Sts., Sampaloc, Manila. The victim was on
his way to school waiting for a ride when he was stabbed. Thereafter the suspect
ed while the victim was brought to the United Doctors Medical Center (UDMC)
where he was pronounced dead on arrival.
The incident was witnessed by Nona Avila Cinco, a laundry woman, who
testi ed that on October 14, 1992, while she was at Funeraria Gloria waiting for
her bettor, she saw a person about one meter away talking to the accused. Said
person told the accused "O pare, anduon na. Puntahan mo na. Siguruhin mo lang
na itumba mo na." to which the accused answered: "Oo ba. Ganito ba, ganito ba?"
(as the witness was speaking, she was demonstrating with her arms.) 1
After hearing the accused, she (witness) left towards Honrades Street to
see another bettor. She rst went inside a house and after a while, she went
outside where she saw the accused along Honrades Street, entering an alley. She
walked along with the accused. She and the accused were even able to look at
each other. LLphil
While the victim was going out of a gate, the accused hurried towards the
victim and took a pointed object from a notebook, then stabbed the victim in the
left chest twice.
She was only about 4 to 5 meters away from the scene of the crime.
Thereafter, the accused ed, the victim shouted for help. Upon hearing the
shouts of the victim, the accused returned and stabbed the victim again in the
middle part of the chest. She (witness) then left the scene of the crime after the
accused ran away.
She reported the matter to the authorities only on July 20, 1993 because
she was afraid." 2
xxx xxx xxx
Florencio Castro testi ed among others that he saw the accused together
with four others inside the Gloria Memorial Homes along G. Tuason St. on
October 14, 1992. One of them used the phone inside said place to call
somebody. The rest stayed beside the one calling. He saw one of them open a
notebook where a stainless knife was inserted. He heard the one using the phone,
asking "kung nasaan." Thereafter, the group went out and left towards the
direction of Balic-Balic.
Rogelio Robles, testi ed among others that the accused Gari Bibat had
been going to his place at 424 Berdad St., Sampaloc, Manila, for a long time
already because their Samahang Ilocano (SI) president, Tonton Montero, is his
(witness) neighbor. Before the incident occurred, Tonton Montero told him
(witness) about a rumble in school whereby somebody died. The group of the
accused was planning to take revenge against the victim, Lloyd del Rosario (see
TSN, pp. 7-8, 6/30/94), thus:
"PROS. EUGENIO:
Q Now, do you know personally what this group of Gari Bibat and his
companions plan to do regarding that trouble related to you by your
neighbor, Tonton Montero?
A What I know, the person against whom they will take revenge is living from
a far place. I did not know that he is from our place.
Q Did they ever mention, during that meeting the name of the person whom
they will take revenge?
A In the beginning, no, sir, but later they told me.
Q What was the name, if they did mention to you the name?
A The one who was killed, Lloyd, sir.
Q The same Lloyd del Rosario, the victim in this case?

A Yes, sir, Lloyd del Rosario."
He further testi ed that he (witness) only knows Lloyd del Rosario by the
face because the latter is from his place. He only knew what had happened to
Lloyd after that fateful incident because 6 or 7 of the members of the group
arrived, all with a "tusok" and they even kept two (2) guns in his (witness) house.
Gari Bibat was one of the 6 or 7 people he saw on that day, with a "tres-cantos" or
"veinte nueve" tucked in his (Bibat's) waistline. (see pp. 11-12, TSN, 6/30/94). He
further narrated that he actually saw the killing of the victim, (see pp. 22-24, ibid).
that even before the day Lloyd died, they (accused and companions) already hid
some guns and "tusok" in his house. (see pp. 20, TSN, Ibid.)"
xxx xxx xxx
"Accused Gari Bibat testi ed among others that on October 14, 1992, he
was staying in his house at 629 Reten St., Sampaloc, Manila; at that time it was
his mother's birthday; that he was reviewing his lessons from 7:00 o'clock to
10:00 o'clock in the morning in preparation for his nal oral exams on October 14,
1992; that Marte Soriano, a friend of his and a neighbor were in his house; that
after lunch, they (he and Marte Soriano) left for school at 12:35 noon; that they
did not pass by Funeraria Gloria; that he and his friend were able to reach the
school; that he had a review of with his classmates up to 1:45 o'clock in the
afternoon, afterwhich they proceeded to their room for the nal exams; that their
examination lasted from 7:30 to 4:30 o'clock in the afternoon; that he passed the
subject with a grade of 2.25; that he does not know Nona Cinco but only later in
the precinct; that he saw Rogelio Robles who was also detained at the Manila City
Jail; that when he asked why Rogelio Robles testi ed against him, Robles told
him that it was merely concocted because the complainant is Robles' neighbor
whom he cannot refuse; that he does not know Tonton Montero; that he did
frequent Verdad St., near Rogelio Robles' house, neither did he go there on
October 14, 1992 between 1:00 and 2:00 o'clock in the afternoon; that he is not a
member of Samahang Ilocano fraternity but the United Ilocandia fraternity, a
school fraternity; that he could not remember of his fraternity being involved in
any school rumble as the same is a very peaceful group which promotes
brotherhood; that they did not have a quarrel with the victim who is already dead
because the latter is not studying at Arellano University; that with respect to the
death of Lloyd del Rosario, the same is an added charge (ipinatong) to him and
that he was just implicated therein; that he knows nothing about it.
In cross examination, he testi ed that he neither saw the two prosecution

witnesses before nor did he know of any grudge which said witnesses have
against him; and that he does not know of any reason why they would testify
against him and identify him as one of the killers of Lloyd del Rosario.
Marte Soriano, testi ed among others that he was at the house of Gari
Bibat at Reten St., Sampaloc, Manila, attending the birthday (party) of Gari's
mother on October 14, 1992; that Gari Bibat was reviewing his studies at that time
in preparation for an oral examination. After taking lunch, he, together with Gari,
went to school (Arellano University) at around 12:00 noon. There, he reviewed his
lessons in preparation for his exams while Gari Bibat had a group study with his
classmates until 2:00 P.M. when Gari went inside the classroom. He knew that
Gari Bibat had an exam that day at 2:00 P.M. because he (witness) is also
studying at Arellano University. The next time he saw the accused was two (2)
days after October 14, 1992.
Lino Asuncion III, testi ed among others: that he is a classmate of Gari

Bibat at Arellano University; that their common subject on MWF is Math 2, English
2, Computer 2; that they had a last/ nal oral examination in Computer 2 on
October 14, 1992; that he saw Gari Bibat in school on that day at about 1:00 P.M.;
that he and Gari Bibat took the said last nal oral exam; that they both left the
room at the same time at 4:30 P.M.
Rogelio Robles — (was recalled to the stand to testify contrary to what he

had previously stated in court). He testi ed inter alia that he did not really see
what transpired on October 14, 1992 at 1:30 o'clock in 6the (sic) afternoon; that
he only assisted the parents of the victim because they come from the same
place; that the father of the victim handed to him the handwritten statement
which he (witness) based his previous testimony; that he did not actually see the
killing."
On December 27, 1995, the court a q uo handed down its decision in question;
disposing, thus:
"Wherefore, with all the foregoing, the Court nds the accused GARI BIBAT
Y Descargar, guilty beyond reasonable doubt of the crime of MURDER and hereby
sentences him to suffer the penalty of reclusion perpetua; to indemnify the heirs
of the victim in the amount of P49,786.14 as actual damages; and to pay
P50,000.00 as and for moral damages, with costs.
SO ORDERED."
Appellant places reliance on the assignment of errors, that:

I
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE
TESTIMONIES OF THE ALLEGED EYEWITNESSES NONA AVILA CINCO AND
ROGELIO ROBLES.
II
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE VERSION OF ACCUSED-
APPELLANT THAT HE WAS NOT AT THE SCENE OF THE CRIME WHEN THE
SAME HAPPENED.
III
THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING
CIRCUMSTANCE OF EVIDENT PREMEDITATION.
FIRST ISSUE:
CREDIBILITY OF PROSECUTION WITNESSES
The Court discerns no basis for disturbing the nding and conclusion arrived at
below on the credibility of the prosecution witnesses.
"In the matter of credibility of witnesses, we reiterate the familiar and well-
entrenched rule that the factual ndings of the trial court should be respected.
The judge a quo was in a better position to pass judgment on the credibility of
witnesses, having personally heard them when they testi ed and observed their
deportment and manner of testifying. It is doctrinally settled that the evaluation of
the testimony of the witnesses by the trial court is received on appeal with the
highest respect, because it had the opportunity to observe the witnesses on the
stand and detect if they were telling the truth. This assessment is binding upon
the appellate court in the absence of a clear showing that it was reached
arbitrarily or that the trial court had plainly overlooked certain facts of substance
or value that if considered might affect the result of the case." 3
As well explained by the Solicitor General, "Persons do not necessarily react

uniformly to a given situation, for what is natural to one may be strange to another. 4 Verily,
there is no standard form of human behavioral response when one is confronted with a
strange and startling experience. 5
It was thus natural for Nona Cinco to just have stayed at the sidelines. She is a
woman who could not have prevented the armed appellant from stabbing the victim,
anyway. The suddenness of the happening and Nona Cinco's fear for her own life must
have prevented her from shouting for help." 6
Delay in divulging the name of the perpetrator of the crime, if su ciently reasoned
out, does not impair the credibility of a witness and his testimony nor destroy its probative
value. It has become judicial notice that fear of reprisal is a valid cause for the momentary
silence of the prosecution witness. 7
In the case at bench, witness Nona Avila Cinco gave an eyewitness account of the
killing complained of in a categorical and straightforward manner.
Appellant belittles the fact that Nona Cinco remembers the stabbing incident to
the minutest details. According to him, "this is alright if the crime just happened, or after
the happening of the crime, the witness FORTHWITH reported the matter to the proper
authorities. Unfortunately, the witness reported the said incident after NINE (9) LONG
MONTHS."
It does not appear that it was impossible for Nona Cinco to have a detailed
recollection of the stabbing sued upon. Even before the incident, she already saw the
accused with some companions inside Funeraria Gloria and overheard the plan to kill
someone. At that time, she was only about one (1) meter from the accused and his
companions. And when she proceeded to Honrades Street, she and the accused walked
along with and even looked at each other.
At the time when the stabbing in question was taking place, Nona Cinco was only
four to ve meters away. The possibility of her recalling even the minutest details cannot
therefore be ruled out. LLphil
Appellant faults Nona Cinco for reporting the stabbing incident to the police
authorities only after nine (9) months, and for her apparent indifference during the incident,
doing nothing even while witnessing a cruel and gruesome crime.
Appellant also theorizes that Nona Cinco was lying when she testi ed that she was
taking bets for a PBA game on October 14, 1992, a Wednesday. Claiming that PBA games
are held only on Tuesdays, Thursdays and Saturdays; appellant concludes that "She lies on
a simple or minor thing, all the more, she can lie on a bigger scale."
On the other hand, the Solicitor General pointed out that: "There are 100
combinations which bettors can try their luck on the so-called PBA game "ending" and,
therefore, 100 corresponding bets should be collected for maximum pro t. It was not
farfetched, therefore, for Nona Cinco to collect bets a day or two before the actual PBA
games which would decide the winning bet."
Besides, the lie alluded pertains to an insigni cant matter which does not affect the
material details of the stabbing incident, and the unequivocal eyewitness account of the
killing of the victim, Lloyd del Rosario. "The maxim or rule ' falsus in unos, falsus in
omnibus' does not lay down a categorical test of credibility. It is not a positive rule of law
of universal application. It should not be applied to portions of the testimony corroborated
by other evidence particularly where the false portions could be innocent mistakes.
Moreover, the rule is not mandatory but merely sanctions a disregard of the testimony of
the witness if the circumstances so warrant. To completely disregard all the testimony of
a witness on this ground, his testimony must have been false as to a material point, and
the witness must have a conscious and deliberate intention to falsify a material point." 8
SECOND ISSUE:
THE DEFENSE OF ALIBI
The accused relies on the defense of alibi, an inherently weak defense. 9 In a long
line of cases, this court has held that "alibi is generally considered a weak defense because
of the facility with which it can be fabricated. Thus, courts have always looked upon it with
suspicion. Well-settled is the rule that for alibi to prevail, it must be established by positive,
clear and satisfactory proof that it was physically impossible for the accused to have been
at the scene of the crime at the time of its commission, and not merely that he was
somewhere else." 1 0
Appellant failed to convince the court that it was physically impossible for him to be
at the scene of the crime at G. Tuazon cor. Ma. Cristina Sts. He claimed that during the
stabbing incident at around 1:30 p.m., he was reviewing for an oral examination in his
subject of Computer 2 at the Arellano University. But as the trial court noted, the situs of
the crime was not far from Arellano University such that "granting arguendo that the
accused was initially at the Arellano University, he could have easily sneaked back to the
scene of the crime considering that the two places are just near each other." 1 1
To buttress his theory that he was actually reviewing for his nal oral examination in
Computer 2 at the very time the crime occurred, he alleged that he received a grade of 2.25
in said subject. But aside from his testimony and that of Lino Asuncion, no other evidence
was presented to substantiate this submission. Appellant should have, at least, exhibited
his class card or grading sheet to show that he did really take an examination in that
subject.
Furthermore, positive identi cation, where categorical and consistent and without
any showing of ill motive on the part of the eyewitness testifying on the matter, prevails
over alibi and denial which, if not substantiated by clear and convincing evidence, are
negative and self-serving evidence undeserving of weight in law. 1 2
In the instant case, prosecution witness Nona Cinco positively identi ed appellant
as the culprit. Another prosecution witness, Rogelio Robles, testi ed to the actual killing of
the victim by appellant. Although the latter recanted, the lower court correctly held that "the
later retraction made by Rogelio Robles does not by itself render his previous testimony
false or perjured because the same testimony appears to be credible and worthy of belief."
1 3 Then too, affidavits of recantation are considered as exceedingly unreliable because they
can be easily secured from poor and ignorant witnesses usually for monetary
consideration and most likely to be repudiated afterwards. 1 4
THIRD ISSUE:
THE PRESENCE OR ABSENCE OF EVIDENT PREMEDITATION
Appellant argues that the trial court erroneously appreciated evident premeditation
against him. Assuming for the sake of argument that he is the felon, the crime he
committed is not MURDER but HOMICIDE, 1 5 he maintains.
Appellant correctly states the rule that the circumstance which would qualify the
killing to murder must be proved as convincingly as the crime itself. 1 6
Here, we are of the irresistible conclusion that the attendance of evident
premeditation to qualify the killing complained of to murder is borne out by the evidence.
There is evident premeditation when the following requisites are met:
1. The time when the offender determined (conceived) to commit the
crime;
2. An act manifestly indicating that the culprit has clung to his
determination; and
3. A su cient lapse of time between the determination and execution to
allow him to reflect upon the consequences of his act. 1 7
The essence of premeditation is that the execution of the criminal act is preceded
by cool thought and re ection upon the resolution to carry out the criminal intent during
the space of time sufficient to arrive at a calm judgment. 1 8
The appellant, in his brief, implies that the rst requisite of evident premeditation
was not sufficiently proven, contending, that:
". . . the aggravating circumstance of evident premeditation was
appreciated by the trial court based solely on the testimony of witness Rogelio
Robles. The said witness testi ed that accused-appellant and several others often
met in his (Rogelio Robles) house. In one of their meetings, accused-appellant
and his companions hid some guns and "tusok" in the said witness' house. Other
than these testimonies, the trial court proffered no other rationale to justify the
application of evident premeditation." 1 9
At rst glance, it may seem that the rst requisite of evident premeditation, [i.e. the
time when the offender determined (conceived) to commit the crime], was appreciated by
the lower court solely on the basis of the testimony of Rogelio Robles. LLphil
Appellant theorizes that the testimony of Robles is not believable; ratiocinating,

thus:
". . . such testimonies which were retracted by Rogelio Robles cannot by
any yardstick be considered credible in itself. It simply defy human experience.
For evidence to be believed, it is basic that it must not only proceed from the
mouth of a credible witness, but it must be CREDIBLE IN ITSELF. (Emphasis
supplied; Layug v. Sandiganbayan and People of the Phil., supra; Tuason v. C.A.,
supra; Lee Eng Hong v. C.A., 241 SCRA 392) If it were true that accused-appellant
and several others planned the subject killing, they would not be crazy enough to
have openly discussed the same in the presence of another person (TSN, June 30,
1994, p. 9). They would be very discreet about it because even the most unlearned
or unschooled person would know that killing is against the law of man and of
God. If indeed they have planned it, they did it in complete secrecy. More, there is
no explanation why of all places, accused-appellant and his group met at Rogelio
Robles' house. The latter is only the neighbor of the alleged president of the
former's organization. Worse, accused-appellant and his group hid some guns
(Ibid., p. 11) and "tusoks" (Ibid., p. 22), in Rogelio Robles' house. Any person who
is in his right frame of mind would not allow anybody to use his house as an
"armory" so to speak or for any illegal purposes."
Appellant faults Rogelio Robles for his utter lack of concern knowing fully well that
the appellant and his companions were planning to kill someone and even allowed them to
hide guns and "tusok" in his house. But the reason for the apparent indifference of Robles
could be gleaned from the following revelation:
"ATTY. CALIMAG:
"Q And when they left your house and took the "tusok" and left the guns, you
know very well from Tonton Montero that they are going to kill somebody,
am I right?
A In school. I did not know that the one they will kill is from my place.
Q Now, my question — you know that they are going to kill somebody, what
did you do, if any as a concerned citizen?
A What if they turn their ire on me.

COURT:
Aside from that English translation, you put on record the Tagalog answer
of the witness: "a — Eh, kung ako naman ang pagbalingan."
ATTY. CALIMAG
Q Now, Mr. Witness, why it took you so long to come out and testify, if you
really know the truth about this matter?
A Because the parents of the victim were still mad or angry, what would
happen to me if I tell them early, what if they said that I am a part of it.
Q Why, what do you think about yourself, are you not a part of it, Mr. Witness?
Because you failed to report this matter immediately to the police officer?
A I kept it to myself for fear that my brother and sisters might be involved,
what will happen to me."
Fully aware that the appellant and his companions were armed with guns and
"tusok", it was but natural for Robles to just observe the protagonists and not get involved.
Fear for his own life and that of his family may have overcome whatever humanitarian
inclination he had as a concerned citizen.
Besides, even without the testimony of Rogelio Robles, the presence of the rst
requisite of evident premeditation appears to have been thoroughly and su ciently
established. The determination or conception of the plan to kill the victim could be
deduced from the outward circumstances that happened on the fateful day of October 14,
1992. Records show that at 11:30 in the morning of October 14, 1992, prosecution
witness Nona Cinco saw the accused with some companions at Funeraria Gloria. She
personally heard the plan to kill someone. Another prosecution witness, Florencio Castro,
who works at the Funeraria Gloria also saw the group of Gari Bibat in the said place. At
around 1:30 in the afternoon, Nona Cinco saw the appellant for the second time. She saw
the appellant hurry towards the victim, take a pointed thing from a notebook and with the
use of such weapon, stab the victim on the chest. These overt acts clearly evinced that the
appellant clung to his resolution to kill the victim.
From the time Nona Cinco heard the plan to kill someone at 11:30 up to the killing
incident at 1:30 in the afternoon of the same day, there was a su cient lapse of time for
appellant to reflect on the consequences of his dastardly act.
As held in the case of People v. Dumdum 2 0 "the killing of the deceased was
aggravated by evident premeditation, because the accused conceived of the assault at
least one hour before its perpetration." In the case under examination, two hours had
elapsed from the time appellant clung to his determination to kill the victim up to the
actual perpetration of the crime.
WHEREFORE, the Decision appealed from is hereby AFFIRMED. Costs against
accused-appellant.
SO ORDERED. LLphil
Narvasa, C .J ., Romero and Kapunan, JJ ., concur.
Footnotes
1. TSN, September 30. 1993, pp. 8-9, cited in Decision, p. 2.

2. Ibid., p. 18, cited in Ibid.
3. People v. Morales, 241 SCRA 267, 273, February 13, 1995; citing People v. Jacalan, 230
SCRA 1, February 10, 1994, People v. Abo, 230 SCRA 612, March 2, 1994, and People v.
Revillame, 230 SCRA 650, March 3. 1994.
4. People v. Cabrera, 241 SCRA 28 [1995].
5. People v. Paricia, 243 SCRA 557 [1995].
6. Appellee's Brief, pp. 16-17.
7. People v. Villanueva, 4 March 1995.
8. People v. Pacapac, 7 September 1995, 248 SCRA 77, 89.
9. People v. Bocatcat, Sr., 188 SCRA 175
10. People v. Magana, G.R. No. 105673, p. 14, July 26, 1996; citing People v. Cortes, 226
SCRA 91, September 3, 1991; People v. Marquez, 153 SCRA 700, September 14, 1987;
and People v. Nescio, 239 SCRA 493, December 28, 1994.
11. Decision, p. 6.
12. People v. Amonia, 248 SCRA 486, 493, September 21, 1995.
13. Decision, p. 6.
14. People v. Celedonia de Leon, et al., G.R. No. 110558, July 3, 1995.
15. Appellant's Brief, p. 10.
16. People v. Machete, 231 SCRA 272, cited in Ibid.
17. People v. Leano, C.A. 36 O.G. 1120; People v. Diva, et al., G.R. No. L-22946, April 29,
1968; People v. Lagarto, 196 SCRA 611 [1991].
18. People v. Durante, 53 Phil 363, cited in LUIS B. REYES, THE REVISED PENAL CODE:
CRIMINAL LAW, BOOK ONE, Twelfth Edition (1981), p. 378, Emphasis in the original text.
19. Appellant's Brief, pp. 10-11.
20. 92 SCRA 198 [1978].

SECOND DIVISION
[G.R. No. 95756. May 14, 1993.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. CRISOLOGO

EMPACIS , accused-appellant.

Antonio A. Almirante, Jr. for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; STANDS IN THE

ABSENCE OF IMPROPER MOTIVE TO FALSELY TESTIFY AGAINST THE ACCUSED. — A
painstaking review of the record fails to reveal to this Court any error on the part of the
Trial Court of sufficient gravity to justify reversal or modification of its verdict. This Court
is unable to perceive any reason to doubt the veracity of the testimony of the victim's
widow and son respecting the identity of Romualdo Langomez and Crisologo Empacis as
the persons who attacked and killed Fidel Saromines in their effort to make off with the
latter's money amounting to P12,000.00, and the acts individually done by Romualdo and
Crisologo in pursuance of their common nefarious objective. Indeed, the narrative of the
widow and son is, as already pointed out, confirmed for the most part by the testimony of
Crisologo Empacis himself. The latter's attempt to exculpate himself, by portraying
himself as a frustrated protector of Fidel Saromines, cannot be taken at face value, as
against the more credible declarations of the victim's widow and son, specially
considering that Crisologo's credit as a witness has been gravely enfeebled by his having
obviously lied to the physician treating him, as regards the cause of his injuries. The Court
has been cited to no plausible cause for Fidel's widow and son to testify falsely against
Crisologo if it be true, as the latter insinuates, that either they had not seen the actual killing
or, having witnessed it, had seen Crisologo actually try to stop Romualdo from stabbing
Fidel. No reason exists, therefore, to disbelieve them.
2. ID.; ID.; ID.; NOT AFFECTED BY MINOR DISCREPANCY IN THE TESTIMONY. — The
fact that the victim's son, Peter, had to correct his statement on direct examination that
Romualdo Langomez stabbed his father five (5) times, declaring. on cross-examination,
that in truth Romualdo stabbed his father only about three times while Crisologo Empacis
stabbed the victim once — of which the appellant seeks to make capital — is not sufficient
warrant to reject and discard Peter's evidence. The discrepancy is at best a minor one, not
— at all destructive of Peter's credibility as an unrehearsed witness. This Court agrees that
the Trial Court has correctly assessed the credit that should be accorded to the evidence
of the prosecution witnesses.
3. ID.; ID.; ID.; FACTUAL FINDINGS OF TRIAL COURT; RULE. — This Court thus sees no
cause to deviate from the established axiom that the factual findings of the Trial Court are
accorded the highest respect on appeal, if not indeed regarded as conclusive, absent any
persuasive showing that material facts have been overlooked or ignored which might
otherwise dictate a different verdict.
4. CRIMINAL LAW; CONSPIRACY; MAY BE INFERRED FROM THE CONCERTED ACTS OF
THE ACCUSED IN PURSUIT OF A COMMON OBJECTIVE. — This Court also agrees that
conspiracy is adequately proven by the evidence. Langomez and Crisologo Empacis came
to Fidel's storelate at night, acting as bona fide customers. Immediately after finishing
their supper, they demanded the delivery to them of Fidel's money, of which they evidently
had prior knowledge, Crisologo lending silent support to his companion's order for Fidel to
turn over the money to them; they helped each other wrest the money away from Fidel and
subdue him by deadly knife thrusts: Romualdo stabbing Fidel thrice, Crisologo, once; they
had obviously arranged for shots to be fired from outside Fidel's store as a means of
frightening Fidel to submit to their demand; and they fled from the scene, together. They
acted in concert, helping and cooperating" with one another (and others) by simultaneous
acts, evidently in pursuit of a common objective.
5. ID.; AGGRAVATING CIRCUMSTANCES; CRAFT OR FRAUD; APPRECIATED IN CASE
AT BAR. — The aggravating circumstance of craft or fraud was properly appreciated
against Empacis. He and Romualdo pretended to be bona fide customers of the victim's
store and on this pretext gained entry into the latter's store and later, into another part of
his dwelling. This Court has held stratagems and ruses of this sort to constitute the
aggravating circumstance of fraud or craft, e.g.: where the accused — a) pretended to be
constabulary soldiers and by that ploy gained entry into the residence of their prey whom
they thereafter robbed and killed; b) pretended to be needful of medical treatment, and
through this artifice, entered the house of the victim whom they thereupon robbed and
killed; c) pretended to be wayfarers who had lost their way and by this means gained entry
into a house, in which they then perpetrated the crime of robbery with homicide; d)
pretended to be a customer wanting to buy a bottle of wine; e) pretended to be co-
passengers of the victim in a public utility vehicle; f) posed as customers wishing to buy
cigarettes; and as being thirsty, asking for drink of water.
6. ID.; ID.; NIGHTTIME; FOR APPRECIATION THEREOF, IT MUST BE DELIBERATELY
AND PURPOSELY SOUGHT TO FACILITATE, OR THAT IT ACTUALLY FACILITATED, THE
COMMISSION OF THE CRIME. — The Court also agrees that nighttime was properly
appreciated as an aggravating circumstance against the accused. To be sure, nighttime is
not per se aggravating. It must be shown that nocturnity was deliberately and purposely
sought to facilitate, or that it actually facilitated, the commission of the crime. In the case
at bar, the lateness of the hour no doubt precluded the presence of other customers who
could have deterred the felons, or come to the aid of the victim, All things considered, there
is adequate showing that nocturnity was deliberately sought by the robbers and did in
reality facilitate the perpetration of the felony.
7. ID.; ID.; SUPERIOR STRENGTH; FOR APPRECIATION THEREOF, ACCUSED MUST
PURPOSELY EMPLOY EXCESSIVE FORCE, FORCE OUT OF PROPORTION TO THE MEANS
OF DEFENSE AVAILABLE TO THE PERSON ATTACKED. — For the aggravating
circumstance of superior strength to be deemed present in a case, it does not suffice to
prove superiority in number on the part of the malefactors; it must appear that they
purposely employed excessive force, force out of proportion to the means of defense
available to the person attacked. In this case, the evidence shows that Empacis helped his
co-accused by also stabbing the victim; he and his companion took advantage of their
combined strength and their bladed weapons to overcome their unarmed victim and
assure the success of their felonious design to make off with his money.
8. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P 50,000. — The Court a quo
sentenced Crisologo Empacis to pay the heirs of Fidel Saromines in the amount of Thirty
Thousand Pesos (P30,000.00) "by way of death indemnity." Pursuant to prevailing case
law, this indemnity must be increased to Fifty Thousand Pesos (P50,000.00). On the other
hand, despite the evidence given by Fidel Saromines' widow establishing the forcible
taking from her husband of the amount of P12,000.00 by Crisologo and Romualdo, the
Trial Court somehow omitted to require the return of said stolen money, as required by
law.
DECISION
NARVASA , C .J : p
In the Regional Trial Court of Cebu City, 1 five men, namely: Crisologo Empacis, Romualdo
Langomez, Zacarias Solis, Carlito Antiga, and Bebe Antiga, were indicted for the crime of
robbery with homicide under Article 294 (1), in relation to Article 296, of the Revised Penal
Code. 2 The indictment reads as follows:
"That on the 16th day of September, 1986 at 9:00 o'clock in the evening, more or
less, in Barangay Kanguha, Municipality of Dumanjug, Province of Cebu . . . (said)
accused, all armed with carbines and bladed weapons, conspiring, confederating
and mutually helping one another, with evident premeditation and intent to kill
treacherously attack, assault and use personal violence upon FIDEL SAROMINES
by stabbing him. On different parts of his body and as a result of which FIDEL
SAROMINES died that on the occasion of the said killing, in pursuance of their
conspiracy, . . . (the) accused did then and there wilfully, unlawfully and
feloniously, and by means of violence, with intent to — gain and against the will
of FIDEL SAROMINES, TAKE, STEAL AND CARRY AWAY the sum of TWELVE
THOUSAND (P12,000.00) PESOS, Philippine Currency, belonging to the latter.
That the crime was committed by a band, all the accused being armed with
carbines and bladed weapons (Article 296, RPC).
IN VIOLATION of and contrary to ARTICLE 294 paragraph 1 of the Revised Penal

Code."
All the accused, except Romualdo Langomez, were thereafter taken into custody
Langomez disappeared, and was never apprehended and brought to trial. 3 In due course,
the other accused were arraigned and tried.
Sometime in December, 1987, during the trial, Carlito Antiga died from a gunshot wound. 4
The trial eventuated in a verdict of conviction against Crisologo Empacis, and of acquittal
as regards Zacarias Solis and Bebe Antiga. The trial Court's judgment, dated October 24,
1989, made the following final dispositions: 5
WHEREFORE, the Court finds the accused Crisologo Empacis guilty of robbery
with homicide as defined and penalized under Article 294(1) of the Revised Penal
Code, and considering the attendance of the four generic aggravating
circumstances of dwelling, nighttime, craft or fraud and superior strength, not
offset by any mitigating or extenuating circumstance, hereby sentences the said
accused Crisologo Empacis to the supreme penalty of death. In view of the fact,
however, that the death penalty has been abolished by Section 19(1), Article III of
the 1987 Constitution, 6 the accused Crisologo Empacis is hereby sentenced to
reclusion perpetua, to suffer the accessory penalties prescribed by law and to pay
the heirs of Fidel Saromines the amount of THIRTY THOUSAND PESOS
(P30,000.00) by way of death indemnity, without subsidiary imprisonment in case
of insolvency in view of the principal penalty. He shall also pay the costs of these
proceedings.
The accused Crisologo Empacis is hereby immediately ordered arrested and held
in the custody of the law pending appeal or review of this decision, should the
accused wish to appeal from or take up on review this decision. LLjur
The other two accused Zacarias or Caring Solis and Bebe Antiga are hereby
acquitted of the charges against them, their guilt not having been proved beyond
a reasonable doubt.
Let a bench warrant issue against the fifth accused in this case, Romualdo a.k.a.
Maldo Langomez so that he can be brought to court to be dealt with accordingly."
The Trial Court accorded superior credit to the evidence of the prosecution in so far as it
established. Empacis' direct participation in the felony charged, to wit: the testimony of the
widow of the victim, Camila Saromines; of their son, Peter Saromines; and of a neighbor,
Balbino Bulak, which the Court found to be corroborated inter alia by the Post Mortem
Report dated September 17, 1986 of the Rural Health Physician at Dumanjug, Cebu (Dr.
Octavio Ortiz), and even by the testimony of accused Crisologo Empacis himself. 7
Following is the story narrated to the Trial Court by the Government witnesses.
At about 9 o'clock on the night of September 16, 1986, as Fidel Saromines and his wife,
Camila, were about to close their small store, located in their house at Kanguha, Dumanjug,
Cebu, two men came and asked to buy some sardines and rice. They were Romualdo (or
Maldo) Langomez and Crisologo Empacis. Camila served them and they proceeded to
make a meal of the rice and sardines. LLphil
After they finished eating, Romualdo told Fidel to sell him cigarettes. As Fidel was handing
over the cigarettes, Romualdo announced a "hold-up" and commanded Fidel to give up his
money. As it happened, Fidel then had P12,000.00 in his house, wrapped in cellophane.
This he started to give to Romualdo but as the latter was taking hold of the packet, Fidel
suddenly decided to fight to keep his money. A struggle followed in the, course of which
Romualdo stabbed Fidel about three times. Crisologo joined in and with his own knife also
stabbed Fidel. At this time, gunshots were heard outside of the house, and a neighbor of
the Saromineses, Balbino Bulak, recognized one of those doing the shooting as a certain
Carlito Antiga. 8 A voice was heard from below saying, "Stab him!" 9 to which Langomez
replied, "I already stabbed (him)." 1 0
From his little sister's room, Fidel's thirteen-year old son, Peter, saw his father fighting for
his life with Romualdo and Crisologo Empacis. Heeding his father's cry, "Peter, help me!"
(Suportahe ko, Peter!). Peter took hold of a "pinuti" (a long bolo), and rushed to his father's
defense. He struck out at Crisologo and inflicted two wounds on him, one at the right
shoulder, and the other, in the neck, Romualdo and Crisologo jumped out of the house and
fled, with the sound of Peter's defiant shout trailing them, "Come back, if you are brave!"
Peter then turned to his wounded father, but found him already dead from his injuries. The
post-mortem examination conducted by Dr. Octavio Ortiz, Rural Health Physician,
disclosed four (4) stab wounds on the deceased, all in the upper back. Two of these, which
penetrated the lungs and heart, were fatal. 1 1
Crisologo Empacis repaired to the clinic of Dr. Eustaquio Deiparine at the poblacion of
Sibonga, Cebu, for treatment of the wounds inflicted on him by Peter, arriving there
between 10 and 11 o'clock that same night. The doctor found Crisologo's wounds —
described by him as a "(hacking) wound on the right side of the neck and the right
shoulder" — "so serious" as to require further treatment, even after they had been sutured.
Dr. Deiparine asked Crisologo how he had come by these wounds. Crisologo said that at
around 6 to 7 o'clock that evening, near the Papan Market, he was assaulted without
warning by a young man, who injured him with a bolo.
Police officers came to Dr. Deiparine's clinic the following morning, looking for a man who
might have been treated for wounds from a bladed weapon. They were directed to the
public market where they came upon Crisologo, taking breakfast. They arrested him and
brought him to the Dumanjug INP Station. There, Crisologo was interrogated by the Station
Commander, P/Pfc. Rogelio Abrea, and gave a sworn statement.
Crisologo was later brought to Municipal Judge Gerardo Gestopa, before whom he took
oath on his affidavit. Before administering the oath, the Judge had a law graduate, one
Victor Esguerra, called to assist Crisologo and verify if he had voluntarily executed his
sworn statement. LLjur
The three (3) accused all took the witness stand in their defense, 1 2 and gave stories
different from that of the prosecution witnesses.
Empacis confirmed the facts established by the prosecution witnesses, up to a point. He
admitted that he and Romualdo Langomez had indeed gone to the store of Fidel
Saromines on the night in question, and had there partaken of a meal of sardines and rice.
He also acknowledged that after taking their supper, Romualdo Langomez had gone
upstairs to buy some cigarettes from Fidel, and it was there that moments later, he saw
Romualdo and Fidel grappling with each other. He denies having Joined Romualdo in
attacking Fidel. He claims that when he saw Romualdo pull out a knife, he tried to stop
Romualdo from using the knife on his adversary; that nonetheless, Romualdo succeeded in
stabbing Fidel twice; that a teen-age boy came with a bolo and lashed out at Romualdo but
the latter was not hit because he pulled him to one side, and instead it was he (Empacis)
who was struck at the right side of the neck; that he then ran away towards his barrio and
from there he was brought by his neighbors to the clinic of Dr. Deiparine; that he was
arrested by the police the following morning; that while being investigated at the municipal
hall of Dumanjug, he told the investigator he wished to avail of the assistance of counsel
but his request went unheeded; and that while being interrogated, some policemen were
inflicting pain on him by squeezing his injured back in order to force him to admit his
participation in the robbery-homicide at Kanguha, Dumanjug. 1 3
The other two accused, Zacarias Solis and Bebe Antiga, denied any participation whatever
in the crime. They were both absolved by the Trial Court, which agreed with them that the
prosecution had indeed failed to clearly and positively prove their, complicity in the
offense. 1 4
The Court a quo rejected (quite correctly, it may be said) the sworn statement purportedly
executed by Empacis on September 17, 1986, offered by the prosecution, condemning it
as "null and void, . . . offensive to Art. III, Section 20, of the New Constitution and the
teachings of the Supreme Court . . . ." 1 5 It ruled however that the other proofs of the
prosecution overwhelmingly demonstrated Crisologo Empacis' guilt of the crime charged,
and accordingly entered a judgment of conviction against him. It ruled that Empacis had
committed the offense in conspiracy with Romualdo Langomez (who was then and to this
day remains at large); that both of them knew Fidel to be in possession of a sizable
amount of money at the time, and their concerted acts proved their agreement to rob Fidel
and if necessary, kill him, It also ruled that the crime was attended by several aggravating
circumstances, i.e., having been perpetrated (a) "in the dwelling of the offended party . . .
(the latter not having) given provocation," 1 6 (b) "in the nighttime " 1 7 (c) with employment
of "craft or fraud" 1 8 and (d) with advantage being taken of superior strength. 1 9
From this judgment Empacis has appealed to this Court. His basic thesis is that the
evidence of the prosecution does not actually prove his guilt of the felony of which he is
accused beyond reasonable doubt.
A painstaking review of the record fails to reveal to this Court any error on the part of the
Trial Court of sufficient gravity to justify reversal or modification of its verdict. This Court
is unable to perceive any reason to doubt the veracity of the testimony of the victim's
widow and son respecting the identity of Romualdo Langomez and Crisologo Empacis as
the persons who attacked and killed Fidel Saromines in their effort to make off with the
latter's money amounting to P12,000.00, and the acts individually done by Romualdo and
Crisologo in pursuance of their common nefarious objective. Indeed, the narrative of the
widow and son is, as already pointed out, confirmed for the most part by the testimony of
Crisologo Empacis himself. The latter's attempt to exculpate himself, by portraying
himself as a frustrated protector of Fidel Saromines, cannot be taken at face value, as
against the more credible declarations of the victim's widow and son, specially
considering that Crisologo's credit as a witness has been gravely enfeebled by his having
obviously lied to the physician treating him, as regards the cause of his injuries. 2 0
The Court has been cited to no plausible cause for Fidel's widow and son to testify falsely
against Crisologo if it be true, as the latter insinuates, that either they had not seen the
actual killing or, having witnessed it, had seen Crisologo actually try to stop Romualdo
from stabbing Fidel. No reason exists, therefore, to disbelieve them. 2 1 The fact that the
victim's son, Peter, had to correct his statement on direct examination that Romualdo
Langomez stabbed his father five (5) times, declaring. on cross-examination, that in truth
Romualdo stabbed his father only about three times while Crisologo Empacis stabbed the
victim once — of which the appellant seeks to make capital — is not sufficient warrant to
reject and discard Peter's evidence. The discrepancy is at best a minor one, not — at all
destructive of Peter's credibility as an unrehearsed witness. This Court agrees that the
Trial Court has correctly assessed the credit that should be accorded to the evidence of
the prosecution witnesses. LexLib
This Court also agrees that conspiracy is adequately proven by the evidence. Langomez
and Crisologo Empacis came to Fidel's storelate at night, acting as bona fide customers.
Immediately after finishing their supper, they demanded the delivery to them of Fidel's
money, of which they evidently had prior knowledge, Crisologo lending silent support to his
companion's order for Fidel to turn over the money to them; they helped each other wrest
the money away from Fidel and subdue him by deadly knife thrusts: Romualdo stabbing
Fidel thrice, Crisologo, once; they had obviously arranged for shots to be fired from
outside Fidel's store as a means of frightening Fidel to submit to their demand; and they
fled from the scene, together. They acted in concert, helping and cooperating" with one
another (and others) by simultaneous acts, evidently in pursuit of a common objective. 2 2
The aggravating circumstance of craft or fraud 2 3 was properly appreciated against
Empacis. He and Romualdo pretended to be bona fide customers of the victim's store and
on this pretext gained entry into the latter's store and later, into another part of his
dwelling. This Court has held stratagems and ruses of this sort to constitute the
aggravating circumstance of fraud or craft, e.g.: where the accused —
a) pretended to be constabulary soldiers and by that ploy gained entry into the
residence of their prey whom they thereafter robbed and killed; 2 4
b) pretended to be needful of medical treatment, and through this artifice, entered the
house of the victim whom they thereupon robbed and killed; 2 5
c) pretended to be wayfarers who had lost their way and by this means gained entry
into a house, in which they then perpetrated the crime of robbery with homicide; 2 6
d) pretended to be a customer wanting to buy a bottle of wine; 2 7
e) pretended to be co-passengers of the victim in a public utility vehicle; 2 8
f) posed as customers wishing to buy cigarettes; and as being thirsty, asking for drink
of water. 2 9
The Court also agrees that nighttime was properly appreciated as an aggravating
circumstance against the accused. To be sure, nighttime is not per se aggravating. 3 0 It
must be shown that nocturnity was deliberately and purposely sought to facilitate, or that
it actually facilitated, the commission of the crime. 31 In the case at bar, the lateness of
the hour no doubt precluded the presence of other customers who could have deterred the
felons, or come to the aid of the victim, All things considered, there is adequate showing
that nocturnity was deliberately sought by the robbers and did in reality facilitate the
perpetration of the felony.
For the aggravating circumstance of superior strength to be deemed present in a case, it
does not suffice to prove superiority in number on the part of the malefactors; 3 2 it must
appear that they purposely employed excessive force, force out of proportion to the
means of defense available to the person attacked. 3 3 In this case, the evidence shows
that Empacis helped his co-accused by also stabbing the victim; he and his companion
took advantage of their combined strength and their bladed weapons to overcome their
unarmed victim and assure the success of their felonious design to make off with his
money. LLjur
That the crime was "committed in the dwelling of the offended party, . . . the latter . . . not
(having) given provocation," was also correctly appreciated as an aggravating
circumstance. 3 4
This Court thus sees no cause to deviate from the established axiom that the factual
findings of the Trial Court are accorded the highest respect on appeal, if not indeed
regarded as conclusive, absent any persuasive showing that material facts have been
overlooked or ignored which might otherwise dictate a different verdict. 3 5
The Court a quo sentenced Crisologo Empacis to pay the heirs of Fidel Saromines in the
amount of Thirty Thousand Pesos (P30,000.00) "by way of death indemnity." Pursuant to
prevailing case law, 36 this indemnity must be increased to Fifty Thousand Pesos
(P50,000.00). On the other hand, despite the evidence given by Fidel Saromines' widow
establishing the forcible taking from her husband of the amount of P12,000.00 by
Crisologo and Romualdo, 3 7 the Trial Court somehow omitted to require the return of said
stolen money, as required by law. 3 8
WHEREFORE, with the modification that the indemnity for death payable to the heirs of
Saromines is increased to P50,000.00 and restitution of the amount of P12,000,00 shall
be made by the accused, jointly and severally, the Decision of the Trial Court subject of this
appeal is hereby AFFIRMED.
IT IS SO ORDERED.
Padilla, Regalado and Nocon, JJ ., concur.
Footnotes
1. Branch 14.
2. The case was docketed as Criminal Case No. CBU-9567.
3. Rollo, 22.
4. Original record, p. 262.
5. Rollo, pp. 31-32.
6. Emphasis supplied. "The italicized is incorrect. The cited constitutional provision did not
"abolish" the death penalty. It simply declared that it shall NOT be imposed "unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides for it."
7. Rollo, pp. 22-27.
8. Carlito died during the trial, SEE p. 2, supra, and footnote 8 infra.
9. TSN, Aug. 10, 1987, p. 18 .
10. Id., p. 19.

11. Id., pp. 22-24; Original record, p. 6.
12. As aforestated, the fourth, Carlito Antigua, died a violent death during the trial and the
fifth suspect, Romualdo Langomez, has remained, and to this day remains, at large.
13. Rollo, pp. 24-25
14. Id., p. 26.
15. The Trial Court cited People v. Pascual, 109 SCRA 197; Morales v. Enrile, 121 SCRA 538;
People v. Galit, 135 SCRA 465; People v. Duhan, 142 SCRA 100; People v. Opida, 142
SCRA 295.
16. Par. 3, ART. 14, Revised Penal Code.
17. Par. 6. id.
18. Par. 14. id.

19. Par. 15, id.
20. SEE footnote 9 and related text, supra.
21. SEE Peo. v. Dimaano, June 15, 1992, citing Peo. v. Gonzales, 182 SCRA 393 (1990).
22. SEE Peo. v. Benitez, 202 SCRA 478; Peo. v. Penones, 200 SCRA 624; Peo. v. Palino, 183
SCRA 680; Peo. v. Alitao, 194 SCRA 120.

23. Par. 14, ART. 14. RPC.
24. Peo. v. Saquing, 30 SCRA 961 [SEE Aquino, the Revised Penal Code, 1988 ed., Vol. I, p.
374.
25. Peo. v. Casalme, 101 Phil. 1249.
26. Peo. v. Saulog, 74 Phil. 527.
27. Peo. v. Bundal, 3 Phil. 89.

28. Peo. v. Vallente, 144 SCRA 495.
29. Peo. v. Napili, 85 Phil. 521.
30. Peo. v. Serante, 152 SCRA 570.
31. Peo. v. Palon, 127 SCRA 529, 539 (1984), citing Peo v. Garcia, 94 SCRA 14.
32. Peo. v. Maloloy-on, 189 SCRA 250 [1988].

33. Peo v. Carpio, 191 SCRA 108 [1990] citing Peo v. Cabato, 160 SCRA 101.
34. Aquino, The Revised Penal Code, 1976 ed. Vol. 1, p. 289, citing Valdez, 64 Phil. 860;
Pinca, 114 Phil. 498.
35. SEE, e.g., Peo. v. Bravo, 180 SCRA 694, 699-700 (1989), Peo. v. Alitao, 194 SCRA 120,
126-127 (1991) Peo. v. Manantan, 196 SCRA 128, 131 (1991); Peo. v. Tugbo, 196 SCRA
133, 137 (1991).
36. SEE, e.g., Peo. v. Soriano, 196 SCRA 123: Peo. v. Sison, 189 SCRA 643 Peo. v. Sazon,
189 SCRA 700; Peo. v. Baguio, 196 SCRA 459.
37. TSN, May 29, 1987, pp. 9-12, 17.

38. ART. 104, Revised Penal Code; SEE Aquino, Revised Penal Code [Anno.], 1987 ed., p.
842.

SECOND DIVISION
[G.R. No. 94534. July 20, 1992.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. RODRIGO BIGCAS

y AMUNCIO and QUILIANO BUTRON y PEROCHO , accused-appellants.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF

TRIAL COURT; RULE AND EXCEPTION. — This Court, in a long line of cases, has
consistently held that the findings of fact of a trial judge who has seen the witness testify
and who has observed his demeanor and conduct while on the witness stand are not
disturbed on appeal, unless certain facts of substance and value have been overlooked
which, if considered, may affect the outcome of the case. We do not perceive any of such
exceptive instances of oversight in the findings of fact of the lower court in this case.
2. ID.; ID.; ID.; NOT AFFECTED BY MINOR INCONSISTENCIES IN THE TESTIMONIES. —
As found by trial court and reflected by the transcripts of their testimonies, the witnesses
for the prosecution not only testified in a straightforward manner but the substance of
their testimonies inspire credence and are confirmed by the physical evidence. If there be
some inconsistencies in their declarations, the same refer only to minor matters which do
not at all affect their credibility. As we ruled in People vs. Mangalino, (182 SCRA 329)
minor inconsistencies in the testimonies of the witnesses are but natural and even
enhance their credibility, as these discrepancies indicate that the responses given were
honest and unrehearsed. This is especially true in the case at bar where said witnesses had
no motive whatsoever to prevaricate and enmesh appellants in a fabricated charge.
3. ID.; ID.; ID.; NOT AFFECTED BY RELUCTANCE TO VOLUNTEER INFORMATION TO
THE POLICE AUTHORITIES IN A CRIMINAL INVESTIGATION. — Appellants further contend
that the act of eyewitnesses Doydoy and Calape of immediately going home after having
seen such a horrible crime is contrary to the natural and logical course of things. We do not
agree. In People vs. Caringal, we stressed that the natural reluctance of many, if not most,
witnesses to volunteer information to the police authorities in a criminal investigation is a
matter of judicial notice. Such reticence is not uncommon, especially when the same arises
out of fear or apprehensions of reprisal from the perpetrators of the crime being
investigated. Also, the fact that a witness may have given his account of the incident only
at the trial below and not sooner neither necessarily impairs his credibility nor discredits
his testimony. Witness Doydoy's hesitancy, to inform his wife of the incident was further
justifiedly explained by the fact that his wife and appellant Bigcas' wife are sisters.
4. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; HAVING
ADMITTED THE KILLING, ACCUSED HAS TO JUSTIFY THE SAME BY THE REQUISITES AND
STANDARDS OF THE LAW FOR SUCH ABSOLUTION. — Appellant Butron interposed self-
defense in order to disclaim criminal liability. He, however, disregarded the rule that self-
defense must be established by clear and convincing evidence. Where an accused claims
self-defense, the burden of proof is shifted to him. He must rely on the strength of his own
evidence and not on the weakness of the prosecution. This is both a logical and inevitable
consequence dictated by the fact that, having admitted the killing, he has to justify the
taking of the victim's life by the requisites and standards of the law for such absolution.
5. ID.; ID.; ID.; REQUISITES. — It is elementary that for self-defense to prosper the
accused must prove that there was unlawful aggression by the victim, that he employed
reasonable means to prevent or repel such aggression, and that there was lack of
sufficient provocation on his part. Just as fundamental is the overriding necessity to prove
unlawful aggression on the part of the victim, absent which there is no call to expound
upon any consideration of self-defense in a case where a life has been taken.
6. ID.; ID.; ID.; CAN NO LONGER BE INVOKED WHEN ANY SUPPOSED UNLAWFUL
AGGRESSION HAD ALREADY CEASED. — Even granting arguendo some degree of truth to
appellant Butron's allegations that he was not armed when he left the store and that it was
the victim who had the opportunity to secure a weapon, the same does not necessarily
relieve him of liability. Appellant Butron himself admitted that he was able to wrench the
alleged weapon away from Palapar. Thereafter, the victim fled, signifying thereby his
intention not to fight and, from that moment, any supposed unlawful aggression had
already ceased. But, instead of letting the victim go, as the prosecution witnesses testified
and this is not seriously contested by the defense, appellants pursued Palapar,
immobilized him and stabbed him to death.
7. ID.; ID.; ID.; CAN NO LONGER BE INVOKED WHEN ACCUSED SUCCEEDED IN
DISARMING THE VICTIM. — The theory of self-defense is based on the necessity on the
part of the person attacked to prevent or repel the unlawful aggression. When said danger
or risk ceased to exist, appellants had no justification in law or in fact to attack the
erstwhile aggressor. Thus, as early as the case of People vs. Alviar, we held that when the
accused, who had been attacked by the deceased, succeeded in snatching the bolo away
from the latter, and the deceased already manifested a refusal to fight, the accused was
definitely not justified in killing him. As more recently reiterated, the claim of self-defense
is not credible where the accused narrated that he had succeeded in disarming the victim
of the piece of wood (allegedly, a bolo in the case at bar) which the latter was carrying,
hence the act of the accused in thereafter stabbing the victim with frequency, frenzy and
force can no longer be considered as reasonably necessary.
8. ID.; ID.; ID.; MAY BE DISPROVED BY THE NATURE AND NUMBER OF WOUNDS
INFLICTED BY THE ACCUSED. — Appellant Butron claims that he himself was wounded
while he was wresting the knife away from the victim. His own doctor, however, testified
that his wounds in the stomach and on his neck were merely superficial and admit of the
possibility of having been self-inflicted. As the trial court observed, it is incredible that the
victim who was supposedly wielding a bolo could only inflict two small skin-deep wounds
on the allegedly defenseless Butron. The foregoing incontrovertible physical evidence, and
a comparison of the wounds sustained by appellant Butron and those inflicted on the
victim, clearly and undoubtedly belie appellant's pretension of self-defense. For, to be
consistent with existing jurisprudence, the nature and number of wounds inflicted by an
assailant are constantly and unremittingly considered important indicia which disprove a
plea of self-defense. It is an affront on credulity to yield acceptance to appellant's
incredible theory that he had to inflict such number of lethal wounds while acting in
legitimate self-defense against an ironically defenseless person.
9. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; CANNOT BE APPRECIATED IN
THE ABSENCE OF EVIDENCE THAT ACCUSED DELIBERATELY ADOPTED MEANS,
METHOD OR FORMS IN THE COMMISSION OF THE CRIME. — The trial court's holding that
treachery cannot be appreciated as a qualifying circumstance against appellants is
correct, since there is no evidence that in the commission of the crime they deliberately
adopted means, methods or forms considered in law as treacherous.
10. ID.; AGGRAVATING CIRCUMSTANCES; NOCTURNITY; NOT APPRECIATED IN CASE
AT BAR. — Its acceptance of nocturnity as an aggravating circumstance, however, is
erroneous. Even the prosecution witnesses testified that during the incident, the moon was
shining brightly. The light was bright enough to see what was going on and to recognize
the assailants. Moreover, nocturnity neither facilitated the commission of the crime nor
was it purposely sought by appellants in order to afford impunity. It therefore, does not
qualify as an aggravating circumstance under either the subjective or objective tests laid
down by this Court for it to be considered as such.
11. ID.; ID.; ABUSE OR BY TAKING ADVANTAGE OF SUPERIOR STRENGTH; NOT
CONSIDERED IN CASE AT BAR. — We are likewise not convinced that the crime was
committed by appellants with abuse or by taking advantage of superior strength.
Regrettably, we can neither determine nor deduce from the prosecution's sketchy evidence
thereon what transpired before the "commotion" involving the victims and appellants. The
two eyewitnesses, Doydoy and Calape testified only on the fight when it was already in
progress but not as to the actuations of the parties proximately and immediately before
the altercation. On the other hand, following the version of the defense which was partly
confirmed by Pfc. Ponciano Butron, the victim was ordered by said policeman to leave the
store of Efren Butron ahead of the others, with appellants directed to stay behind for about
fifteen minutes, so that the parties would not encounter each other again shortly after the
incident at said store. It cannot, therefore, be said that when the fight took place more than
fifteen minutes later, because that victim instead of going straight home obviously waited
for appellants to catch up with him, appellants could have anticipated such an unexpected
contingency and had accordingly conceived of taking advantage of their combined
strength and weapons.
12. ID.; ID.; ID.; RULE FOR THE APPRECIATION THEREOF. — For this qualifying
circumstance to be considered, it is not sufficient that there be superiority in number or
strength; it is necessary that the accused must have cooperated and intended to use or
secure advantage from such superior strength. As we also emphasized in People vs.
Cabiling, abuse of superior strength may be considered not only when there is an inequality
of force between the victim and the aggressor but there must be a situation of superiority
of strength notoriously selected or taken advantage of by him in the commission of the
crime. We find that the prosecution has fallen short of proof that appellants had
specifically contrived or deliberately intended and prepared to take advantage of superior
strength in a projected assault against the victim. This requisite cannot be drawn from
mere assumptions or conjectures, for qualifying circumstances must be proved as
conclusively as the crime itself.
13. ID.; CONSPIRACY; CONSTRUED. — Conspiracy already exists the moment two or
more persons come to an agreement concerning the commission of a felony and decide
to commit it, unlike the qualifying circumstances of treachery and taking advantage of
superior strength which require at least some prior deliberation and adoption of a specific
mode of commission. To establish conspiracy, prior agreement between both accused to
kill the victim is not essential for the same may be inferred from their own acts showing a
joint purpose of design, which was illustrated in this case, by the concerted acts of
appellants.
DECISION
REGALADO , J : p
Finding accused-appellants Rodrigo Bigcas and Quiliano Butron guilty beyond reasonable
doubt of killing one Ambrocio Palapar, the Regional Trial Court of Bohol, Branch IV in
Tagbilaran City 1 imposed on them the penalty of "reclusion perpetua or life imprisonment"
and to solidarily pay the heirs of the victim "legal indemnity" of P30,000.00, actual
damages in the amount of P11,150.00, loss of earnings of P20,000.00 and the costs. 2
In an information dated October 13, 1988, appellants Butron and Bigcas were charged
with murder allegedly committed as follows:
"That on or about the 25th day of July, 1988 at barangay Poblacion, municipality
of Pilar, province of Bohol, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating together
and mutually helping with (sic) each other, with intent to kill, abuse of superior
strength, and with treachery, by suddenly attacking the victim without giving him
the opportunity to defend himself and without justifiable cause, did then and
there wilfully, unlawfully, and feloniously attack, assault and stab one Ambrocio
Palapar y Macarayan with the use of a sharp-pointed bolo and a piece of wood
thereby inflicting upon the vital parts of the body of the victim mortal wounds or
injuries which resulted directly to the immediate death of the victim Ambrocio
Palapar y Macarayan, to the damage and prejudice of the heirs of the said victim.
"Acts committed contrary to the provisions of Article 248 of the Revised Penal
Code with the aggravating circumstance of nighttime being purposely sought for
(sic) or taken advantage of by the accused to facilitate the commission of the
crime." 3
Appellants pleaded not guilty when arraigned and, thereafter, trial on the merits ensued
wherein, predictably, the prosecution and the defense presented different versions of the
circumstances which gave rise to the alleged killing.
The version of the prosecution revolved basically around the testimonies of the two
eyewitnesses, Rosito Doydoy and Jesus Calape, with corroborative and supplementary
testimonies on other aspects furnished by Pfc. Ponciano Butron of the Integrated National
Police Station at Pilar, Bohol and Dr. Lourdes Atop-Tan, municipal health officer of the
same town. LLpr
Rosito Doydoy testified that after attending the last prayers of his uncle which ended at
8:30 in the evening of July 25, 1988, he went home with his son, Rodel, to his house some
two kilometers away. On the way and at a distance of about twelve meters, Doydoy saw
three persons involved in a commotion. It was not so dark then as the moon was shining
brightly. From behind tall cogon grass, he saw appellant Butron strike Ambrocio Palapar
two times with a piece of wood on the latter's back. In his attempt to flee from his
aggressor, Palapar passed beside witness Doydoy who was then trying to hide himself
and his son behind the bushes. Palapar was chased by appellant Bigcas who, upon
catching up with the former stabbed him twice with a bolo at the back. The chase
continued until Bigcas was able to stab the victim again at the back of the latter's right
knee. The victim fell on the ground, after which he uttered, "Long, stop because I will die of
these wounds." Butron shouted at him saying, "I will kill you, Boyax." He then approached
Palapar and hit him twice with a piece of wood on the right jaw. Bigcas, on his part,
stabbed the supine victim several times. Thereafter, both appellants left the victim, with
Butron telling Bigcas. "You own the killing and these two bolos and I will be with you
anywhere." 4
Jesus Calape, testified on essentially the same facts. He declared that he left his house at
9:00 o'clock that same night to go to the house of his "kumpadre Imo," whose real name is
Maximo Tiro, to borrow the latter's carabao as he wanted to haul posts for his house. He
purposely went there that night because Tiro is usually out of his house during daytime.
While on his way, he saw the victim Palapar being attacked by the two appellants. Butron
hit Palapar twice with a piece of wood at his back. Bigcas told the victim to fight but the
latter refused. Palapar pleaded for his life but appellant Bigcas instead stabbed him twice,
also at the back. Due to his fear after seeing Bigcas stab the victim, Calape ran home and
told his wife what he witnessed. The next morning, he heard that the victim died. 5
The defense, as expected, presented a version based principally on the testimonies of the
two appellants, Butron and Bigcas, which are hereunder summarized.
It is claimed that on July 28, 1988, at around 2:30 in the afternoon, Rodrigo Bigcas was at
the store of a certain Efren Butron at Buyong, Pilar. At about 6:30 P.M., Quiliano Butron
arrived at the same store. A few minutes later, Ambrocio Palapar, who was apparently
already intoxicated, arrived and drank `tuba' with the group of Bigcas and Butron. Palapar
requested for more drinks but Quiliano Butron refused as he had no more money. Palapar
got angry and called Butron stingy. He challenged Butron to fight but the latter
remonstrated with him. Palapar then placed his hand on Butron's shoulders and told him
not to worry. He thereafter held the waist of Butron, grabbed the knife that was hanging
from the latter's waist and challenged everybody to fight. Someone reported the incident
to the police and, later on, Pfc. Ponciano Butron responded together with another
policeman. Pfc. Butron took the knife from Palapar and ordered the latter to go home, but
he required Bigcas and Butron to stay a while and let Palapar leave ahead. Around fifteen
minutes after Palapar had left, Bigcas and Butron left together with some other persons.
Butron walked ahead as he was bringing something for his family. 6 LibLex
Later, on their way Bigcas and a certain Anasco met appellant Butron running and already
wounded. Out of fear, Anasco ran away. Bigcas brought Butron to surrender to the police
at the municipal building of Pilar, Bohol. Butron reported to the police that he was waylaid
by Palapar on his way home. Bigcas later accompanied Butron to the Simeon Toribio
Hospital in Carmen, Bohol where Butron was confined. 7 Butron complemented the
foregoing testimony by narrating that on his way home, he saw Palapar standing in the
middle of the road. He greeted Palapar by his nickname "Boyax" but received no answer.
As he was passing by Palapar, the latter suddenly stabbed him with a bolo, hitting his
stomach. He backtracked but the victim followed him and gave him three stab thrusts
which he parried. He was able to take hold of the victim's hand holding the bolo and
wrestled the same from him. Butron then repeatedly stabbed Palapar until the latter fell.
When he went to the police, he also surrendered the bolo used in the alleged killing. Butron
was brought by Bigcas and the police to the hospital where he was treated and confined
for four days. 8
After trial, the trial court rendered the assailed judgment. Not satisfied therewith, Butron
and Bigcas interposed the present appeal wherein they filed separate briefs through their
respective counsel.
Appellant Butron, for his part, argues that the court a quo erred (1) in failing to duly
consider the material evidence presented by the prosecution and the defense; (2) in
disregarding the evidence of self-defense which evidence constituted his defense; and (3)
in finding him guilty of the crime o murder. 9
Appellant Bigcas, on the other hand, contends that the trial court erred (1) in failing to give
full credence to the declaration of appellant Quiliano Butron, against his penal interest, that
he alone killed the victim, Ambrocio Palapar; (2) in convicting appellant Rodrigo Bigcas of
murder despite the failure of the prosecution to establish the presence of any of the
qualifying circumstances; and (3) in appreciating the aggravating circumstance of
nocturnity. 1 0
The separate assignments of errors raised by both appellants are congruent in material
points, hence the same shall be jointly discussed in conjunction with each other.
A careful evaluation of the records of the case shows that appellants were correctly found
guilty by the court below for the death of Ambrocio Palapar and we see no reason for
departing from the factual findings of the trial court which resulted in its verdict of guilt.
We have perforce to state once again that this Court, in a long line of cases, has
consistently held that the findings of fact of a trial judge who has seen the witness testify
and who has observed his demeanor and conduct while on the witness stand are not
disturbed on appeal, unless certain facts of substance and value have been overlooked
which, if considered, may affect the outcome of the case. 1 1 We do not perceive any of
such exceptive instances of oversight in the findings of fact of the lower court in this case.
As found by said court and reflected by the transcripts of their testimonies, the witnesses
for the prosecution not only testified in a straightforward manner but the substance of
their testimonies inspire credence and are confirmed by the physical evidence. If there be
some inconsistencies in their declarations, the same refer only to minor matters which do
not at all affect their credibility. As we ruled in People vs. Mangalino, 1 2 minor
inconsistencies in the testimonies of the witnesses are but natural and even enhance their
credibility, as these discrepancies indicate that the responses given were honest and
unrehearsed. This is especially true in the case at bar where said witnesses had no motive
whatsoever to prevaricate and enmesh appellants in a fabricated charge. prLL
Appellant Butron interposed self-defense in order to disclaim criminal liability. He,

however, disregarded the rule that self-defense must be established by clear and
convincing evidence. 1 3 Where an accused claims self-defense, the burden of proof is
shifted to him. He must rely on the strength of his own evidence and not on the weakness
of the prosecution. 1 4 This is both a logical and inevitable consequence dictated by the
fact that, having admitted the killing, he has to justify the taking of the victim's life by the
requisites and standards of the law for such absolution.
It is elementary that for self-defense to prosper the accused must prove that there was
unlawful aggression by the victim, that he employed reasonable means to prevent or repel
such aggression, and that there was lack of sufficient provocation on his part. 1 5 Just as
fundamental is the overriding necessity to prove unlawful aggression on the part of the
victim, absent which there is no call to expound upon any consideration of self-defense in a
case where a life has been taken.
Now, even granting arguendo some degree of truth to appellant Butron's allegations that
he was not armed when he left the store and that it was the victim who had the opportunity
to secure a weapon, 1 6 the same does not necessarily relieve him of liability. Appellant
Butron himself admitted that he was able to wrench the alleged weapon away from
Palapar. Thereafter, the victim fled, signifying thereby his intention not to fight and, from
that moment, any supposed unlawful aggression had already ceased. But, instead of
letting the victim go, as the prosecution witnesses testified and this is not seriously
contested by the defense, appellants pursued Palapar, immobilized him and stabbed him
to death.
The theory of self-defense is based on the necessity on the part of the person attacked to
prevent or repel the unlawful aggression. When said danger or risk ceased to exist,
appellants had no justification in law or in fact to attack the erstwhile aggressor. Thus, as
early as the case of People vs. Alviar, 1 7 we held that when the accused, who had been
attacked by the deceased, succeeded in snatching the bolo away from the latter, and the
deceased already manifested a refusal to fight, the accused was definitely not justified in
killing him. As more recently reiterated, the claim of self-defense is not credible where the
accused narrated that he had succeeded in disarming the victim of the piece of wood
(allegedly, a bolo in the case at bar) which the latter was carrying, hence the act of the
accused in thereafter stabbing the victim with frequency, frenzy and force can no longer be
considered as reasonably necessary. 1 8
Moreover, the results of the autopsy conducted by Dr. Lourdes Atop-Tan on the victim
showed that the latter sustained more or less thirteen wounds, as follows:
"1. Stab wound on the anterior chest wall, 2 inches below the right nipple, 2
inches diameter, 4 inches deep, sharp edge posteriorly, round edge anteriorly
penetrating the anterior chest wall, penetrating the heart.
2. Stab wound on the anterior chest wall 3 inches above the right nipple, 2
inches diameter, 3 1/2 inches deep, sharp edge posteriorly, round edge anteriorly
penetrating the anterior chest wall, penetrating the heart.
3. Stab wound on, the anterior abdomen at the epigastric region 2 inches
diameter, 3 inches deep, posterior edge sharp, anterior edge round penetrating the
anterior abdomen, perforating the stomach. Cdpr
4. Stab wound on the right lumbar region, 2 inches diameter, 3 inches deep,
anterior edge round, posterior edge sharp, penetrating the right kidney.
5. Stab wound on the anterior abdominal region 1 inch below the umbilicus —
2 inches diameter, 1/2 inch deep, anterior edge round, posterior edge sharp, non-
penetrating.
6. Stab wound on the right forearm 4 inches diameter, 1/2 inch deep.
7. Stab wound on the right arm 4 inches diameter, 1/2 inch deep.
8. Lacerated wound on the left arm, 4 inches diameter, 1 inch deep.
9. Lacerated wound on the left forearm 4 inches diameter, posteriorly.
10. Stab wound on the left palm, 2 inches diameter, 1 inch deep, round edge
anteriorly, sharp edge posteriorly.
11. Stab wound on the left lumbar region, 3 inches diameter, 1 inch anterior
edge round, posterior edge sharp and non-penetrating.
12. Stab wound on the posterior chest wall 3 inches diameter, 1/2 inch deep,
2 inches below the left scapula.
13. Stab wound on the right foot, 2 inches diameter, 1/2 inch deep.
14. Hematoma and fracture of bone on the neck posterior 3 inches diameter
reddish bluish." 1 9
Appellant Butron claims that he himself was wounded while he was wresting the knife
away from the victim. His own doctor, however, testified that his wounds in the stomach
and on his neck were merely superficial and admit of the possibility of having been self-
inflicted. 2 0 As the trial court observed, it is incredible that the victim who was supposedly
wielding a bolo could only inflict two small skin-deep wounds on the allegedly defenseless
Butron.
The foregoing incontrovertible physical evidence, and a comparison of the wounds
sustained by appellant Butron and those inflicted on the victim, clearly and undoubtedly
belie appellant's pretension of self-defense. For, to be consistent with existing
jurisprudence, the nature and number of wounds inflicted by an assailant are constantly
and unremittingly considered important indicia which disprove a plea of self-defense. 2 1 It
is an affront on credulity to yield acceptance to appellant's incredible theory that he had to
inflict such number of lethal wounds while acting in legitimate self-defense against an
ironically defenseless person.
Appellants further contend that the act of eyewitnesses Doydoy and Calape of
immediately going home after having seen such a horrible crime is contrary to the natural
and logical course of things. We do not agree. In People vs. Caringal, 2 2 we stressed that
the natural reluctance of many, if not most, witnesses to volunteer information to the
police authorities in a criminal investigation is a matter of judicial notice. Such reticence is
not uncommon, especially when the same arises out of fear or apprehensions of reprisal
from the perpetrators of the crime being investigated. Also, the fact that a witness may
have given his account of the incident only at the trial below and not sooner neither
necessarily impairs his credibility nor discredits his testimony. Witness Doydoy's
hesitancy, to inform his wife of the incident was further justifiedly explained by the fact that
his wife and appellant Bigcas' wife are sisters.
The trial court's holding that treachery cannot be appreciated as a qualifying circumstance
against appellants is correct, since there is no evidence that in the commission of the
crime they deliberately adopted means, methods or forms considered in law as
treacherous. Its acceptance of nocturnity as an aggravating circumstance, however, is
erroneous. Even the prosecution witnesses testified that, during the incident, the moon
was shining brightly. The light was bright enough to see what was going on and to
recognize the assailants. Moreover, nocturnity neither facilitated the commission of the
crime nor was it purposely sought by appellants in order to afford impunity. It, therefore,
does not qualify as an aggravating circumstance under either the subjective or objective
tests laid down by this Court for it to be considered as such. 2 3
We are likewise not convinced that the crime was committed by appellants with abuse or
by taking advantage of superior strength. Regrettably, we can neither determine nor
deduce from the prosecution's sketchy evidence thereon what transpired before the
"commotion" involving the victims and appellants. The two eyewitnesses, Doydoy and
Calape testified only on the fight when it was already in progress but not as to the
actuations of the parties proximately and immediately before the altercation. On the other
hand, following the version of the defense which was partly confirmed by Pfc. Ponciano
Butron, the victim was ordered by said policeman to leave the store of Efren Butron ahead
of the others, with appellants directed to stay behind for about fifteen minutes, so that the
parties would not encounter each other again shortly after the incident at said store. cdrep
It cannot, therefore, be said that when the fight took place more than fifteen minutes later,
because that victim instead of going straight home obviously waited for appellants to
catch up with him, appellants could have anticipated such an unexpected contingency and
had accordingly conceived of taking advantage of their combined strength and weapons.
For this qualifying circumstance to be considered, it is not sufficient that there be
superiority in number or strength; it is necessary that the accused must have cooperated
and intended to use or secure advantage from such superior strength. 2 4 As we also
emphasized in People vs. Cabiling, 2 5 abuse of superior strength may be considered not
only when there is an inequality of force between the victim and the aggressor but there
must be a situation of superiority of strength notoriously selected or taken advantage of
by him in the commission of the crime. We find that the prosecution has fallen short of
proof that appellants had specifically contrived or deliberately intended and prepared to
take advantage of superior strength in a projected assault against the victim. This
requisite cannot be drawn from mere assumptions or conjectures, for qualifying
circumstances must be proved as conclusively as the crime itself. 2 6
Appellant Bigcas' disclaimer of liability, on the other hand, is likewise unavailing. There
were two eyewitnesses to the incident who testified that appellants Bigcas and Butron did
act in a concerted manner in bringing about the death of victim Palapar. This indicates the
existence of conspiracy between them, although such concurrence of wills arose and was
adopted by appellants just momentarily before attacking the victim.
Conspiracy already exists the moment two or more persons come to an agreement
concerning the commission of a felony and decide to commit it, 2 7 unlike the qualifying
circumstances of treachery and taking advantage of superior strength which require at
least some prior deliberation and adoption of a specific mode of commission. To
establish conspiracy, prior agreement between both accused to kill the victim is not
essential for the same may be inferred from their own acts showing a joint purpose of
design, which was illustrated in this case, by the concerted acts of appellants. 2 8
All told, it is our considered view that appellants have committed only the felony of
homicide, since treachery was not proved the abuse of superior strength cannot be
considered against them. Neither is the aggravating circumstance of nocturnity attendant
in this case. On the contrary, what has been completely overlooked is the fact that
appellant Butron and, resolving the doubt in his favor, appellant Bigcas are, as we hereby
find them to be, entitled to the mitigating circumstance of voluntary surrender which was
established by their testimonies 2 9 and substantiated by Pfc. Ponciano Butron. 3 0
WHEREFORE, the judgment appealed from is MODIFIED, with accused-appellants being
hereby DECLARED guilty of homicide, with due extenuation by voluntary surrender, and
each of them is hereby SENTENCED to serve an indeterminate sentence of ten (10) years
of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion
temporal, as maximum. The death indemnity is hereby increased to P50,000.00 in
accordance with current case law. 3 1 In all other respects, the judgment of the court a quo
is AFFIRMED.
SO ORDERED.
Narvasa, C . J ., Padilla and Nocon, JJ ., concur.
Footnotes
1. Judge Fernando S. Ruiz, presiding.

2. Rollo, 29.
3. Original Record, 38.
4. TSN, March 13, 1989, 12-16; March 14, 1989, 1-5.
5. TSN, March 15, 1989, 5-10.
6. TSN, November 9, 1989, 2-6; November 10, 1989, 2-6.

7. TSN, November 9, 1989, 6-9.
8. TSN, November 10, 1989, 7-12.
9. Brief for Appellant Quiliano Butron, 1; Rollo, 50.
10. Brief for Appellant Rodrigo Bigcas, 4; Rollo, 106.
11. People vs. Cruz, Sr., 151 SCRA 609 (1987); People vs. Mauyao, G.R. No. 84525, April 6,
1992; People vs. Hatague, et al., G.R. No. 97308, April 7, 1992.
12. 182 SCRA 329 (1990).

13. Araneta, Jr. vs. Court of Appeals, et al., 187 SCRA 123 (1990).
14. People vs. Uribe, 182 SCRA 624 (1990).
15. Art. 11, par. 1, Revised Penal Code.
16. Brief for Appellant Butron, 6; Rollo, 55.
17. 56 Phil. 98 (1931).

18. People vs. Masangkay, et al., 155 SCRA 133 (1987).
19. Exh. G; Original Record, 3.
20. TSN, February 5, 1990, 1-2.
21. People vs. Cuadra, 85 SCRA 576 (1978); People vs. Legaspi, 151 SCRA 670 (1987);
Guevarra vs. Court of Appeals, et al., 187 SCRA 484 (1990).
22. 176 SCRA 404 (1989).
23. People vs. Garcia, et al., 94 SCRA 14 (1979); People vs. Coderes, et al., 104 SCRA 255
(1981); People vs. Palon, 127 SCRA 529 (1984).
24. People vs. Pajarillo, et al., 94 SCRA 828 (1979); People vs. Casey, et al., 103 SCRA 21
(1981); People vs. Basas, 111 SCRA 288 (1982); People vs. Karunsiang Guiapar, et al.,
129 SCRA 539 (1984).
25. 74 SCRA 285 (1976).
26. People vs. Tiongson, 130 SCRA 614 (1984); People vs. Atienza, 148 SCRA 147 (1987).
27. Art. 8, Revised Penal Code.
28. People vs. Tachado, et al., 170 SCRA 611 (1989); People vs. Arroyo, et al., 201 SCRA
616 (1991); People vs. Moreno, et al., G.R. No. 94755, April 10, 1992.
29. TSN, Nov. 9, 1989, 7; Nov. 10, 1989, 10-11.

30. TSN, Mar, 13, 1989, 2-3.
31. People vs. Sazon, 189 SCRA 700 (1990).

SECOND DIVISION
[G.R. No. L-32914. August 30, 1974.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, v s . LAUREANO

SANGALANG , accused-appellant.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Octavio R. Ramirez

and Solicitor Ma. Rosario QuetulioLosa for plaintiff-appellee.
Narciso V. Cruz, Jr. for accused-appellant.
DECISION
AQUINO , J : p
This is a murder case. The testimonies of the two prosecution eyewitnesses

disclose that at around six o'clock in the morning of June 9, 1968 Ricardo Cortez left
his nipa hut located at Sitio Adlas, Barrio Biluso, Silang, Cavite to gather tuba from a
coconut tree nearby. Flora Sarno, his wife, was left inside the hut. While he was on top
of the tree gathering tuba, he was struck by a volley of shots. He fell to the ground at
the base of the coconut tree.
His wife Flora heard three successive shots coming south of the hut. She went
outside the hut. From a distance of about twenty- ve meters, she saw ve men, each
armed with a long rearm, ring at her husband. He was already wounded and was lying
on the ground at the foot of the coconut tree. His assailants were about ve meters
away from him.
She recognized Laureano Sangalang as one of the ve armed men who were
ring at her husband. She and her brother Ricardo had known Sangalang since their
childhood. She also recognized Conrado Gonzales, Irineo Canuel, Perino Canuel and
Eleuterio Cuyom as the other malefactors.
Flora ran towards the place where her husband had fallen. She shouted, "Bakit
ninyo pinagbabaril ang aking asawa". The ve persons red at her. She was then about
twenty meters away from them. She retreated to the hut for cover. She heard some
more shots. After the lapse of about ve minutes, Laureano Sangalang and his
companions left the place. When Flora returned to the spot where her husband was
prostrate, he was already dead.
On the occasion already described, Ricardo Sarno, twenty-seven years old, a
brother of Flora, was inside his own nipa hut which was about ten meters away from
Flora's hut. He was drinking coffee. His wife and children were eating breakfast. He
heard several shots. He came out of his hut. He saw his brother-in-law being shot by
Laureano Sangalang, Eleuterio Cuyom, Perino Canuel, Irineo Canuel and Conrado
Gonzales. He saw Sangalang using a Garand carbine in shooting his brother-in-law. The
latter fell from the top of the coconut tree after he was shot (10 tsn). His sister Flora
was trying to approach her husband but she had to ee to her hut when Sangalang and
his companions red at her. He wanted to join her but he was likewise red upon by the
five men. So, he retired and took refuge in his own hut.
Later, Sarno saw his sister Flora, sitting inside her hut. He followed her after she
left the hut and went to see her dead husband, who was lying on the ground, face up, at
the base of the coconut tree. When he noticed that his brother-in-law was already dead,
he gathered his children and brought them to Sitio Biga, which was more or less thirty
meters away from his hut in Sitio Adlas. Ricardo reported the killing to the chief of
police who went to the scene of the crime with some policemen and Constabularymen.
The necropsy report shows that the twenty- ve-year-old Cortez sustained
twenty-three gunshot wounds on the different parts of the body, fourteen of which were
entrance-wounds, and nine were exit-wounds (Exh. A and B). He died due to the multiple
gunshot wounds (Exh. C).
On June 10, 1968 or on the day following the killing, Flora and Ricardo were
interrogated by the Silang police. They executed sworn statements before the
Municipal Judge pointing to Laureano Sangalang, Conrado Gonzales, Irineo Canuel,
Perino Canuel and Eleuterio Cuyom as the assassins of Ricardo Cortez. Flora said in her
statement that she knew those persons because from time to time they used to pass
by her place. They resided at Barrio Capdula, Dasmariñas, which is near Barrio Adlas. On
the basis of those statements, the police led on June 10 in the Municipal Court a
complaint for murder against the ve aforenamed persons. Sangalang was arrested.
He posted bail in the sum of P50,000 on June 13. He waived the second stage of the
preliminary investigation. The other accused have not been apprehended. On August 8,
1968 the Provincial Fiscal filed an information for murder against Sangalang.
After trial, the Court of First Instance of Cavite, Tagaytay City Branch, rendered a
judgment convicting Sangalang of murder, sentencing him to reclusion perpetua and
ordering him to pay the heirs of Ricardo Cortez an indemnity of twelve thousand pesos
and to pay his widow moral damages in the sum of ten thousand pesos (Criminal Case
No. TG-162). Sangalang appealed.
The appellant, a fty-six-year old farmer, admitted that he knew Cortez and that
he knows his wife, Flora Sarno. He pleaded an alibi. He declared that in the afternoon of
June 8, 1968 he and Crispulo Mendoza went to the house of Julian Gatdula at Dapitan
Street, Sampaloc, Manila. He arrived at Gatdula's place at six o'clock. He wanted to
borrow money from Gatdula to defray the matriculation fees of his children.
As Gatdula had no money at that time, he advised Sangalang to wait until
morning. He would try to raise the sum of two hundred pesos which Sangalang desired
to borrow. Sangalang and Mendoza agreed. They allegedly slept in Gatdula's house on
the night of June 8th. The next morning, they breakfasted in that house. At about ten
o'clock on June 9, Gatdula delivered the two hundred pesos to Sangalang. He and
Mendoza then went to the Central Market in Manila and then to Quiapo. They returned
to Cavite and arrived at seven o'clock in the evening of June 5 in Barrio Capdula.
Gatdula and Mendoza corroborated Sangalang s alibi.
In this appeal Sangalang insists on his alibi and impugns the credibility of the
prosecution eyewitnesses, Mrs. Cortez and the victim's brother-in-law, Ricardo Sarno.
The basic issue is whether their eyewitness-testimony that they saw appellant
Sangalang as one of the ve armed persons, who riddled Cortez with fourteen gunshot
wounds of entry, is su cient to overcome his alibi. In essence, the case projects the
ever recurring conflict in criminal jurisprudence between positive identification and alibi.
The trial court rejected appellant's alibi. It noted that although his witnesses,
Mendoza and Gatdula, learned of his arrest, and Mendoza even visited him in the
municipal jail, Sangalang and his witnesses did not interpose the defense of alibi when
he was investigated by the police and when he was summoned at the preliminary
investigation.
Sangalang points to certain discrepancies in the declarations of Mrs. Cortez and
her brother Ricardo Sarno. Those inconsistencies, which are not glaring, strengthen
their credibility and show that their testimonies were not coached nor rehearsed. The
discrepancies may be attributed to de ciencies in observation and recollection, or
misapprehension of the misleading and confusing questions during cross-examination,
or to the defective translation of the questions and answers but they do not necessarily
indicate a wilful attempt to commit falsehood (People vs. Selfaison, 110 Phil. 839;
People vs. Resayaga, L-23234, December 26, 1973, 54 SCRA 350).
The controlling fact is that Mrs. Cortez and Sarno clearly and consistently
testi ed that they saw Sangalang, a person already well-known to them, among the ve
armed persons who shot Ricardo Cortez. That unwavering identi cation negates
appellant's alibi.
The prosecution did not prove the motive for the killing. On the other hand,
Sangalang did not show that Mrs. Cortez and Sarno were impelled by a malicious desire
to falsely incriminate him.
Counsel de o cio meticulously examined the contradictions and de ciencies in
the evidence for the prosecution. He made a spirited defense of the appellant. However,
his efforts failed to cast any reasonable doubt on Sangalang's complicity in the killing.
The victim was shot while he was gathering tuba on top of a coconut tree. He
was unarmed and defenseless. He was not expecting to be assaulted. He did not give
any immediate provocation. The deliberate, surprise attack shows that Sangalang and
his companions employed a mode of execution which insured the killing without any
risk to them arising from any defense which the victim could have made. The qualifying
circumstance of treachery (alevosia), which was alleged in the information, was duly
established (See art. 14[16], Revised Penal Code). Hence, the killing can be categorized
as murder (See People vs. Sedenio, 94 Phil. 1046). Treachery absorbs the aggravating
circumstance of band (U. S. vs. Abelinde, 1 Phil. 568). Evident premeditation, which was
alleged in the information, was not proven.
The trial court correctly imposed the penalty of reclusion perpetua on Sangalang
(Arts. 64[1] and 248, Revised Penal Code).
Finding no error in its judgment, the same is a rmed with costs against the
appellant.
SO ORDERED.
Zaldivar (Chairman), Fernando, Barredo and Fernandez, JJ., concur.
Antonio, J., did not take part.

EN BANC
[G.R. No. L-44274. January 22, 1980.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. LUISITO SAN

PEDRO, et al. , accused. ARTEMIO BANASIHAN , defendant-appellant.
Haydee B. Yorac for appellant.

Office of the Solicitor General for appellee.
DECISION
PER CURIAM , : p
Automatic review of the death penalty imposed on appellant by the Court of First
Instance of Laguna, for the crime robbery with homicide, committed, according to the
evidence, as stated in the appellee's brief, which We quote, as follows:
"In the afternoon of June 2, 1970, the lifeless body of a person was found
somewhere between the barrios of Masaya and Paciano Rizal, Municipality of
Bay, Laguna. The body was brought municipal building of Bay for autopsy. Dr. Fe
Manansala-Pantas, in her autopsy report, Exh. B, noted that the deceased died of
profuse hemorrhage due to 23 lacerated and stab wounds and multiple abrasions
found on the different parts of the body of the deceased.
"The deceased was identi ed to be Felimon Rivera, a driver of a passenger

jeep belonging to Pablito delos Reyes, a fruit vendor. Earlier in the say, Rivera was
out driving the jeep. But that was to be the last time for him to drive the jeep for
on that same day, he was killed, and his jeep was no longer found or recovered.
"It was not until June 11, 1971, that the police authorities found a concrete
lead to the solution of the case. Rodrigo Esguerra, when apprehended and
interviewed by the police, admitted his participation and named his companions.
He gave a written statement, Exh. F. Soon the police began rounding up the other
suspects.
"Artemio Banasihan was apprehended sometime in 1972. On March 3 of

said year, he was investigated by Sgt. Juan Tolentino of the Philippine
Constabulary. He gave a statement which was sworn to before the Acting
Municipal Judge of Los Baños, Laguna, confessing his participation in the
robbery and killing of Felimon Rivera (Exh. H). In said statement, Banasihan
recounted that four days before June 2, 1970, he and his co-accused met and
planned to get the jeep driven by the deceased. Carrying out their plan, he and
Luisito San Pedro approached Rivera in the afternoon of June 2, 1970 and on the
pretext of hiring Rivera's jeep to haul coconuts. they proceeded to Bo. Puypuy, in
Bay, Laguna, where they were joined by Salvador Litan and Rodrigo Esguerra.
Esguerra was then carrying a water pipe wrapped in paper. Upon reaching a river
between the barrios of Mainit and Puypuy, San Pedro ordered Rivera to stop.
Whereupon, at Esguerra's signal, Litan hit Rivera at the nape with the water pipe.
Rivera jumped out of the jeep but was chased by San Pedro and Litan who
stabbed him at the back several times with a dagger. Esguerra then drove the jeep
and the group proceeded to Makati, Rizal, where they joined Nelson Piso and
Antonio Borja. The jeep was brought to Cavite City where it was sold for
P2,000.00. Four days later, Piso went to Los Baños and gave San Pedro, Litan
and Banasihan P50.00 each, with the promise that the balance would be given
later. However, the promised balance was not given them."
As synthesized above, the facts of the instant case are a also found by the trial
court, which appellant, through counsel de o cio , confesses inability to dispute.
Admitting thus the accuracy of the factual nding of the court a quo, appellant raises
only questions of law, particularly in the appreciation the modifying circumstances
proven by the evidence, with a view to reducing the penalty of death as imposed, to
reclusion perpetua, as prayed for. This notwithstanding, We did not relieve ourselves of
the duty of reviewing the evidence, for the purpose of the proceedings before Us is to
discover any possible error, specially in the appreciation of the evidence, that might
have been committed by the trial court that led to an improper imposition of the
supreme penalty. After undertaking the task, We express complete agreement that no
reversible error has been committed by the trial court as to the culpable participation of
the appellant as one of the perpetrators of the capital offense charged.
Speci cally, the legal questions raised affecting the degree of culpability of
appellant is whether the aggravating circumstance of craft is absorbed by treachery,
and whether the resulting single aggravating circumstance of treachery should be
offset by the mitigating circumstance of lack of instruction, as appellant claims should
be appreciated in his favor, thereby calling for the reduction of the death penalty to that
of life imprisonment.
We cannot subscribe to the theory of craft being absorbed by treachery, as
nighttime and abuse of superior strength may be so absorbed, as held in numerous
decisions of this Court. 1 In the instant case, craft was employed not with a view to
making treachery more effective as nighttime and abuse of superior strength would in
the killing of the victim. It was directed actually towards facilitating the taking of the
jeep in the robbery scheme as planned by the culprits. From the de nition of treachery,
it is manifest that the element of defense against bodily injury makes treachery proper
for consideration only in crimes against person as so explicitly provided by the Revised
Penal Code (Art. 14[16]).
Aside from the foregoing observation, decisional rulings argue against
appellant's submission. Thus in the case of U.S. vs. Gampoña, et al., 36 Phil. 817 (1917)
where the crime charged was murder, quali ed by treachery, craft was considered
separately to aggravate the killing. Note that in this cited case, the crime was killing
alone, which has a weightier rationale for merging the two aggravating circumstances,
than when, as in the crime of robbery with homicide, craft has a very distinct application
to the crime of robbery, separate and independent of the homicide. Yet, it was held that
craft and treachery were separate and distinct aggravating circumstances. The same
ruling was announced in People vs. Sakam, et al., 61 Phil. 27 (1934).
In People vs. Malig, 83 Phil. 804, (1949) craft which consisted in luring the victim
to another barrio, was considered absorbed by treachery. This may be so because craft
enhanced the effectiveness of the means, method or form adopted in the execution of
the crime, one against persons, "which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party
might make." Even so, the Court was divided in the inclusion or absorption of craft by
treachery. And again, the offense charged was one solely against persons. LibLex

With the presence of two aggravating circumstances, craft and treachery, it
would make no difference even if the mitigating circumstance of lack of instruction
were appreciated in appellant's favor — which is even doubtful from the fact alone, as
was allegedly proven by the testimony of appellant that he cannot read and write but
can only sign his name (p. 9, t. s. n., Sept. 1, 1975). This, apart from the fact that as held
categorically in the case of People vs. Enot, 6 SCRA 325 (1962) lack of instruction is
not applicable to crimes of theft and robbery, much less to the crime of homicide. The
reason is that robbery and killing are, by their nature, wrongful acts, and are manifestly
so to the enlightened, equally as to the ignorant (People vs. Salip Manla, et al., 30 SCRA
389 [1969]).
As recently held by this Court, speaking through Justice Hermogenes
Concepcion, Jr., the "criteria in determining lack of instruction is not illiteracy alone, but
rather lack of su cient intelligence." It is signi cant that neither to the trial court nor to
the appellant's counsel has the mitigating circumstance of lack of instruction entered
the mind. No attempt was made to prove it, as direct proof, not mere inference, is
required, and must be invoked in the court below (People vs. Mongado, et al., 28 SCRA
642, [1969]), the reason being that the trial court can best gauge a person's level of
intelligence from his from his manner of answering questions in court (People vs.
Manuel, 29 SCRA 337 [1969]). If the trial court did not consider the mitigating
circumstance invoked for the rst time here on appeal, it must be because from
appellant's testimony, and even more so from his given occupation as a merchant
(t.s.n., p. 3, Sept. 1, 1975), his alleged lack of intelligence never suggested itself to the
trial court or to his lawyer, as entitling him to the mitigating circumstance of lack of
instruction.
WHEREFORE, there being no error committed by the trial court, its decision
imposing the death penalty, together with the indemnity awarded, has to be, as it is
hereby, affirmed.
SO ORDERED.
Teehankee, Barredo, Makasiar, Antonio, Concepcion, Jr., Santos, Fernandez,
Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.
Fernando, C.J., took no part.
Separate Opinions
AQUINO, J., concurring:
I concur in the result. Although Luisito San Pedro, Artemio Banasihan, Rodrigo
Esguerra, Nelson Piso and Antonio Borja were charged with robbery with homicide in
the lower court (Salvador Litan was not included in the charge), Banasihan and Piso
were arrested and brought to trial.
Banasihan was convicted of robbery with homicide and was sentenced to death.
Piso was convicted as an accessor case is not under automatic review. LLpr
Esguerra was later apprehended. He pleaded guilty and was sentenced to

reclusion perpetua.
I think despoblado should also be considered aggravating. The malefactors used
the victim's jeep to bring him to an uninhabited place where he was killed with impunity.
Hence, the death penalty was properly imposed.
Footnotes
1. People vs. Undong, 66 SCRA 386; People vs. Tizon, 66 SCRA 372; People vs. Echaluce,
66 SCRA 221; People vs. Berdida, et al., 17 SCRA 520; People vs. Enot, 6 SCRA 325;
People vs. Pajenado, 69 SCRA 172; People vs. Abletes, 58 SCRA 241; People vs. Layson,
30 SCRA 92; People vs. Lumantas, 28 SCRA 764; People vs. de Gracia, 18 SCRA 197.

FIRST DIVISION
[G.R. No. 120282. April 20, 1998.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . ROBERT

CASTILLO y MONES , accused-appellant.

Salacnib F. Baterina and Ismael R. Baterina for accused-appellant.
SYNOPSIS
Appellant was charged with murder in connection with the fatal stabbing of Antonio
Dometita. He pleaded not guilty and interposed the defense of denial and alibi claiming
that he was then asleep in his house at the time of the incident. Prosecution witness
Eulogio Velasco testi ed that he was sitting outside the pub house when appellant
suddenly arrived and stabbed the victim on the left side of the chest. Another prosecution
witness, Melinda Mercado, testi ed that although she did not see the actual stabbing, she
saw appellant wrapping a bladed weapon in his shirt. However, defense witness Edilberto
Marcelino, a tricycle driver, testi ed that he was about twenty- ve meters away from the
crime scene when he saw a group of persons ganging up on a person who was later
identi ed as the victim, and that appellant was not one of the assailants. The trial court
gave full credence to the testimonies of the two prosecution witnesses and rendered
judgment of conviction of the crime charged, with the qualifying circumstance of abuse of
superior strength. Hence, this recourse, appellant questioning the credibility of the
prosecution witnesses and the partiality of the trial judge in favor of the prosecution as
shown by his participation in the examination of witnesses. SAHIaD
The Supreme Court held that the factual ndings of the trial court, as well as its
assessment of the credibility of witnesses, are entitled to great weight and are even
conclusive and binding, barring arbitrariness and oversight of some fact or circumstance
of weight and substance.
The allegation of bias and prejudice is not well-taken. It is a judge's prerogative and
duty to ask clari catory questions to ferret out the truth. The propriety of a judge's queries
is determined not necessarily by their quantity but by their quality and, in any event, by the
test of whether the defendant was prejudiced by such questioning. In this case, appellant
failed to demonstrate that he was prejudiced by the questions propounded by the trial
judge. In fact, even if all such questions and the answers thereto were eliminated, appellant
would still be convicted.
The defense of alibi cannot overturn the clear and positive testimony of the credible
eyewitnesses who located appellant at the locus criminis and identi ed him as the
assailant. DCASIT
The Court, however, disagreed with the trial court that the killing was quali ed by
abuse of superior strength. The prosecution did not demonstrate that there was a marked
difference in the stature and build of the victim and the appellant which would have
precluded an appropriate defense from the victim. Not even the use of a bladed instrument
would constitute abuse of superior strength if the victim was adequately prepared to face
an attack, or if he was obviously physically superior to the assailant.
Nonetheless, the killing was quali ed by treachery. Where the accused appeared
from nowhere and swiftly and unexpectedly stabbed the victim just as he was bidding
goodbye to his friend. Said action rendered it difficult for the victim to defend himself.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL

COURT, GENERALLY ENTITLED TO GREAT WEIGHT. — The factual ndings of the trial
court, as well as its assessment of the credibility of witnesses, are entitled to great weight
and are even conclusive and binding, barring arbitrariness and oversight of some fact or
circumstance of weight and substance. The evaluation of the credibility of witness is a
matter that peculiarly falls within the power of the trial court, as it has the opportunity to
watch and observe the demeanor and behavior of the witnesses on the stand. In this case,
appellant failed to provide any substantial argument to warrant a departure from this rule.
CHEIcS
2. JUDICIAL ETHICS; JUDGES; IT IS A JUDGE'S PREROGATIVE AND DUTY TO ASK

CLARIFICATORY QUESTIONS; PROPRIETY OF QUERIES DETERMINED WHETHER THE
DEFENDANT WAS PREJUDICED BY SUCH QUESTIONING. — It is a judge's prerogative and
duty to ask clari catory questions to ferret out the truth. On the whole, the Court nds that
the questions propounded by the judge were merely clari catory in nature. Questions
which merely clear up dubious points and bring out additional relevant evidence are within
judicial prerogative. Moreover, jurisprudence teaches that allegations of bias on the part of
the trial court should be received with caution, especially when the queries by the judge did
not prejudice the accused. The propriety of a judge's queries is determined not necessarily
by their quantity but by their quality and, in any event, by the test of whether the defendant
was prejudiced by such questioning.
3. ID.; ID.; ID.; ID.; CASE AT BAR. — In this case, appellant failed to demonstrate that
he was prejudiced by the questions propounded by the trial judge. In fact, even if all such
questions and the answers thereto were eliminated, appellant would still be convicted. As
correctly observed by the Solicitor General, "there was no showing that the judge had an
interest, personal or otherwise, in the prosecution of the case at bar. He is therefore
presumed to have acted regularly and in the manner [that] preserve[s] the ideal of the 'cold
neutrality of an impartial judge' implicit in the guarantee of due process (Mateo, Jr. vs.
Villaluz, 50 SCRA 18)." That the trial judge believed the evidence of the prosecution more
than that of the defense, does not indicate that he was biased. He simply accorded greater
credibility to the testimony of the prosecution witnesses than to that of the accused. acADIT
4. REMEDIAL LAW; EVIDENCE; CREDIBILITY; ALIBI; REQUISITE TO PROSPER AS A

DEFENSE. — For the defense of alibi to prosper, the accused must prove not only that he
was at some other place at the time the crime was committed, but that it was likewise
physically impossible for him to be at the locus criminis at the time of the alleged crime.
This the appellant miserably failed to do. Appellant contends that he was then asleep in his
house at the time of the incident. This was supported by his mother who stated that he
was asleep from 9:00 p.m. to 6:00 a.m. the next day and by Rosemarie Malikdem who said
that she visited the accused on the night of May 24, 1993 to counsel him, which was her
task in the Samahang Magkakapitbahay. Appellant failed to demonstrate, however, the
distance between the crime scene and his house. Indeed, he testi ed that his house was
"near" the crime scene. In any event, this defense cannot overturn the clear and positive
testimony of the credible eyewitnesses who located appellant at the locus criminis and
identifies him as the assailant.
5. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; WHEN
APPRECIATED; CASE AT BAR — We likewise agree that the prosecution was unable to
prove the aggravating circumstance of evident premeditation. For this circumstance to be
appreciated, there must be proof, as clear as the evidence of the crime itself, of the
following elements: 1) the time when the offender determined to commit the crime, 2) an
act manifestly indicating that he clung to his determination and 3) a su cient lapse of
time between determination and execution to allow himself time to re ect upon the
consequences of his act. These requisites were never established by the prosecution. We
hold that the killing was quali ed by treachery. "Treachery is committed when two
conditions concur, namely, that the means, methods, and forms of execution employed
gave the person attacked no opportunity to defend himself or to retaliate[;] and that such
means, methods, and forms of execution were deliberately and consciously adopted by
the accused without danger to his person." These requisites were evidently present in this
case when the accused appeared from nowhere and swiftly and unexpectedly stabbed the
victim just as he was bidding goodbye to his friend, Witness Velasco. Said action rendered
it di cult for the victim to defend himself. The presence of "defense wounds" does not
negate treachery because, as testi ed to by Velasco, the rst stab, fatal as it was, was
in icted on the chest. The incised wounds in the arms were in icted when the victim was
already rendered defenseless. cDTIAC
6. ID.; AGGRAVATING CIRCUMSTANCES; ABUSE OF SUPERIOR STRENGTH;

ASSAILANT MUST PURPOSELY USE EXCESSIVE FORCE OUT OF PROPORTION TO THE
DEFENSE AVAILABLE TO THE PERSON ATTACKED. — On the other hand, we disagree with
the trial court that the killing was quali ed by abuse of superior strength. "To properly
appreciate the aggravating circumstance of abuse of superior strength, the prosecution
must prove that the assailant purposely used excessive force out of proportion to the
means of defense available to the person attacked." ( People vs. Ruelan, 231 SCRA 650,
April 19, 1994; People vs. Casingal, 243 SCRA 37, March 29, 1995) The prosecution did not
demonstrate that there was a marked difference in the stature and build of the victim and
the appellant which would have precluded an appropriate defense from the victim. Not
even the use of a bladed instrument would constitute abuse of superior strength if the
victim was adequately prepared to face an attack, or if he was obviously physically
superior to the assailant.
7. CIVIL LAW; DAMAGES; ACTUAL AND MORAL DAMAGES; MUST BE SUPPORTED
BY PROOF. — The trial court awarded indemnity and actual and moral damages to the heirs
of the victim. We sustain the award of indemnity in the amount of P50,000, but we cannot
do the same for the actual and moral damages which must be supported by proof. In this
case, the trial court did not state any evidentiary basis for this award. We have examined
the records, but we failed to find any, either.
DECISION
PANGANIBAN , J : p
The trial court judge is not an idle arbiter during a trial. He can propound clari catory
questions to witnesses in order to ferret out the truth. The impartiality of a judge cannot be
assailed on the mere ground that he asked such questions during the trial. cdrep
The Case
This is an appeal from the Decision 1 dated December 23, 1994 of the Regional Trial
Court of Quezon City, Branch 88, in Criminal Case No. Q-93-45235 convicting Robert
Castillo y Mones of murder and sentencing him to reclusion perpetua. 2
On July 23, 1993, an amended Information 3 was led by Assistant City Prosecutor
Ralph S. Lee, charging appellant with murder allegedly committed as follows:
"That on or about the 25th day of May, 1993, in Quezon City, Philippines,
the above-named accused, with intent to kill[,] quali ed by evident premeditation,
use of superior strength and treachery did then and there, willfully, unlawfully and
feloniously assault, attack and employ personal violence upon the person of one
ANTONIO DOMETITA, by then and there stabbing him with a bladed weapon[,]
hitting him on his chest thereby in icting upon him serious and mortal wounds,
which were the direct and immediate cause of his untimely death, to the damage
and prejudice of the heirs of the said ANTONIO DOMETITA.
CONTRARY TO LAW."
Upon arraignment, Appellant Castillo, assisted by Counsel Salacnib Baterina, entered

a plea of not guilty. 4 After trial in due course, appellant was convicted. The dispositive
portion of the assailed Decision reads:
"WHEREFORE, premises considered, accused ROBERTO CASTILLO y
MONES is found guilty beyond reasonable doubt of the crime of Murder and [is]
hereby sentenced to suffer [the] penalty of reclusion perpetua. He is likewise
ordered to pay the heirs of the deceased Antonio Dometita actual damages in the
sum of P60,000.00, the sum of P50,000.00 by way of indemnity for the death of
the victim and moral damages in the sum of P100,000.00. He is likewise ordered
to pay costs.
SO ORDERED." 5
Hence, this appeal. 6

The Facts
Evidence for the Prosecution
The Appellee's Brief 7 presents the facts as follows:
"On May 25, 1993, around one o'clock in the morning, Eulogio Velasco,
oor manager of the Cola Pubhouse along EDSA, Project 7, Veteran's Village,
Quezon City, was sitting outside the Pubhouse talking with his co-worker, Dorie.
Soon, Antonio "Tony" Dometita, one of their customers, came out of the
pubhouse. As he passed by, he informed Eulogio that he was going home. When
Tony Dometita was about an armslength [sic] from Eulogio, however, appellant
Robert Castillo suddenly appeared and, without warning, stabbed Tony with a fan
knife on his left chest. As Tony pleaded for help, appellant stabbed him once
more, hitting him on the left hand.
Responding to Tony's cry for help, Eulogio placed a chair between Tony
and appellant to stop appellant from further attacking Tony. He also shouted at
Tony to run away. Tony ran towards the other side of EDSA, but appellant
pursued him.
Eulogio came to know later that Tony had died. His body was found
outside the fence of the Iglesia ni Cristo Compound, EDSA, Quezon City.
Dr. Bienvenido Munoz, the medico-legal o cer who autopsied Tony's

cadaver, testi ed that the proximate cause of Tony's death was the stab wound
on his left chest. Tony also suffered several incised wounds and abrasions,
indicating that he tried to resist the attack." 8
Version of the Defense

On the other hand, the defense viewed the facts in this way: 9
"On May 25, 1993, the late Antonio Dometita was found dead by the police
o cers at the alley on the right side of the Iglesia ni Cristo Church at EDSA in
Bago Bantay.
It is the theory of the prosecution that the deceased Antonio Dometita was
stabbed by the accused Robert Castillo y Mones as testi ed to by Leo Velasco.
The corroboration of Leo Velasco's testimony is that of Melinda Mercado who
(tsn Oct. 11, 1993) stated that Leo Velasco informed her that Dometita was
stabbed. Robert Castillo was walking away from the pubhouse with the bladed
weapon. Leo Velasco himself detailed the way Castillo stabbed the deceased
Antonio Dometita.
On the other hand the defense claims that the deceased died in the alley at
the right side of the church. That decedent Dometita was attacked by two
malefactors as testi ed to by Edilberto Marcelino, a tricycle driver who saw two
people ganging up on a third. The same witness saw the victim falling to the
ground. (tsn January 5, 1994, page 8). A report of Edilberto Marcelino to the
Barangay Tanod's O ce was made in the blotter of the Barangay and the extract
(xerox of the page) was marked as Exhibit '2'."
The Trial Court's Ruling

The court a quo gave full credence to the testimonies of the two prosecution
witnesses, who positively identified the appellant as the killer. It explained:
"From the testimonies of the witnesses of the prosecution and the defense,
it can be gleaned that the accused, to exculpate himself from the liability, clung to
the defense of alibi[,] saying that he was not at the place where the incident took
place at the time of the killing. This was supported by the testimony of his mother
and his neighbor and guide Malikdem. This, however, is contradicted by the
testimonies of the two eyewitnesses of the prosecution who positively identi ed
accused as the person who stabbed the victim. While the testimony of Mercado is
to the effect that she did not actually see the accused hit the victim, she however,
saw him walking away and carrying a bladed weapon at the scene of the crime.
Velasco on the other hand, actually saw him lunged [sic] his fan knife at the
victim. These were further strengthened by the findings of the medico-legal officer
that the weapon used in killing the victim [was] similar to a balisong." 1 0
The trial court also found that the killing was quali ed by abuse of superior strength,
because "the accused used a deadly weapon in surprising the victim who [was] unarmed."
Although treachery was present, the trial court held that this was absorbed by abuse of
superior strength.
The Issues
The appellant raises the following assignment of errors: 1 1
"I
That the trial court failed to appreciate the evidence presented by the
accused that there was a stabbing/mauling incident at the side street near the
Iglesia ni Cristo Church at Edsa-Bago Bantay, Quezon City (at about the time of
the alleged stabbing of victime [sic] Antonio Dometita according to the
prosecution version), the same evidence for the accused being butressed and
supported by the barangay blotter, marked Exhibit '2.'
II
That the trial court failed to appreciate the implications of: the medical
nding that the heart and the lungs of the victim were impaled; that according to
the testimony of the prosecution witness, PO3 Manolito Estacio, the victim was
found at the side street near the Iglesia ni Cristo Church; and that the side street
distant from the place the witnesses for the prosecution stated the victim was
stabbed. These matters create reasonable doubt as to the guilt of the accused
and cast distrust on the testimony of the witness Eulogio Velasco who allegedly
witnessed the stabbing of the victim.
III
That the trial court in many instances showed its prejudice against the
accused and in several instances asked questions that [were] well within the duty
of the prosecution to explore and ask; it never appreciated other matters favorable
to the accused, like the frontal in iction of the mortal wound and the presence [of]
"defense wounds" which negate treachery and superiority.
IV
That the trial judge was bias[ed] against the accused hence the judgment
of conviction."
In the main, appellant questions the trial judge's (1) assessment of the credibility of
the witnesses and their testimonies and (2) alleged partiality in favor of the prosecution as
shown by his participation in the examination of witnesses.
This Court's Ruling
The appeal is bereft of merit.
First Issue: Credibility of Witnesses
Time and again, this Court has adhered to the rule that the factual ndings 1 2 of the
trial court, as well as its assessment of the credibility of witnesses, 13 are entitled to great
weight and are even conclusive and binding, barring arbitrariness and oversight of some
fact or circumstance of weight and substance. The evaluation of the credibility of
witnesses is a matter that peculiarly falls within the power of the trial court, as it has the
opportunity to watch and observe the demeanor and behavior of the witnesses on the
stand. 14 In this case, appellant failed to provide any substantial argument to warrant a
departure from this rule.
The testimony of Prosecution Witness Eulogio Velasco that he saw the appellant
stab the victim is clear and unequivocal. He was sitting outside the pub house when the
victim came out. Dometita, who was then only an arm's length away from him, turned
around to say goodbye when, suddenly, the accused came out of nowhere and stabbed the
victim. Velasco narrated further that the victim asked him for help, so he responded by
placing a chair between the victim and the appellant to block the assault of the accused. 1 5
Thereafter, he told Dometita to run away. The accused then chased the victim towards the
other side of EDSA. 1 6 The relevant portions of Velasco's testimony are reproduced
hereunder:
"Q Immediately thereafter, was there any unusual incident that happened?
A When Dorie went inside the pub house, that was the time Tony went out, sir.
COURT:
Q Who is this Tony?

A Antonio Dimatita alias Tony, Your Honor.
PROS. LEE: cdrep
Q When Antonio Dimatita [sic] alias Tony went out, what happened?
A Tony asked permission from me that he will go home, sir.
Q And what happened thereafter?

A When he ha[d] not gone far yet from me, Robert Castillo suddenly attacked him
and stabbed him, sir.
Q What happened to Antonio Dimatita [sic] alias Tony when he was stabbed by
accused Robert Castillo?
A He was taken aback. He was not able to cover up himself and he was hit by the
stab made by Robert Castillo, sir.
Q On what part of the body was he hit?

A On the left side of the chest, sir.
Q And did you see in what summer [sic] accused Robert Castillo stabbed Antonio
Dimatita [sic]?
A Like this, sir. (Witness demonstrating with his right arm above his shoulder with
downward stabbing position.)
Q As you stated, after Tony was hit on the left side of [his] chest, what happened
next?
A He was stabbed again and was hit on the arm, sir.
Q What arm? Left or right?
A On the left arm, sir. (Witness is pointing to his left arm in between the 1st and
second finger.)
Q After he was hit on the left arm, what happened next?
A He went near me and asked for help, sir. I placed a bench on the middle to block
the way so that Robert Castillo [would] not be able to reach him and I told
Tony to run away, sir.
Q Did Tony run away thereafter?
A Yes, sir.
Q How about accused Robert Castillo, what was he doing the[n]?
A He chased, sir.
Q What happened next?
A I heard Tony was already dead, sir."
The testimony of Velasco that the accused stabbed the victim on the left side of the
chest and then on the left arm was con rmed by the medical ndings, 1 7 particularly the
autopsy report of Dr. Munoz, who testified as follows: 18
"COURT
Q Can you tell the Court the relative position of the victim and the assailant when
the stab wound was inflicted?
TRIAL PROS. RALPH S. LEE

Based on the wound, doctor.
WITNESS
A If the victim and the assailant were in a standing position, the assailant and the
victim would be facing each other and the fatal wound was delivered from
upward to downward, your honor."
Witness Velasco further testi ed that the accused used a bladed weapon which
looked like a fan knife. 1 9 This was also supported by Dr. Munoz, viz.: 2 0
"Q Dr. Munoz, in your learned medical knowledge, what could have caused this
stab wound marked as Exhibit "D"?
A This was in icted by a sharp pointed single bladed instrument like kitchen knife
or "balisong" or any similar instrument."
Melinda Mercado, the other prosecution witness, corroborated the story of Velasco.
She testi ed that when she was inside the pub, she heard Velasco shout that Antonio
Dometita was stabbed. 2 1 She went out to verify and saw the accused walking away. What
she saw was not the stabbing incident itself, but the accused wrapping a bladed weapon in
his shirt. 2 2 This con rms the assertion of Velasco that the accused was still holding the
bladed instrument as he chased the victim. 2 3
Clearly, the straightforward, detailed and consistent narrations of the government
witnesses show that the trial court did not err in giving credence to the account of the
prosecution.
Appellant contends that the trial court failed to appreciate the testimony of Defense
Witness Edilberto Marcelino who narrated a "stabbing/mauling incident" on a side street
that fateful night near the Iglesia ni Cristo Church, where the victim's body was found. Said
witness testi ed that he was driving his tricycle, when he noticed a group ganging up on a
man (pinagtutulungan). 2 4 He then saw the person fall. 2 5 He did not notice if the assailants
had weapons, as he was a bit far from them, illumination coming only from the headlight of
his tricycle. He stated that the appellant, with whom he was familiar because he often saw
him selling cigarettes along EDSA, 2 6 was not one of those he saw ganging up on the
person who fell to the ground. He described one of the malefactors as long-haired and
lanky, and the other one as fair-complexioned with medium build, 2 7 descriptions which did
not t the accused. Upon witnessing the incident, Marcelino immediately proceeded to the
barangay hall to report the matter.
The trial court did not accord weight to said testimony. We sustain this holding.
Marcelino admitted that he was about twenty- ve meters away from the place of incident
2 8 and that said place was not lighted. Furthermore, his tricycle was then moving because
he was in a hurry. 2 9 Thus we agree with this statement of the trial court: [C]onsidering that
it was dark and the distance from where the witness saw the incident [was] quite far, it
could not have been possible for him to recognize the victim and his attackers " 3 0
Appellant also asserts that the trial court failed to appreciate the implications of the
medical nding that the heart and lungs of the victim were impaled. He argues that these
wounds made it impossible for the victim to traverse the distance from the pub house to
the Iglesia ni Cristo Church area, where his body was eventually found. However, the
testimony of the medico-legal expert did not rule out this possibility, as gleaned from the
following:
"Q And if the stab wound was fatal, how long could have he [sic] lived after the
infliction of the wound? cdrep
A It would be very di cult to give the duration of survival because different

individual[s] would have different types of survival. Others would [live] for
five minutes and others would survive for at least . . . in shorter time.
Q But ve minutes doctor would be a long time already. It could be the survival
time of a person who has a strong constitution. Do you agree with me?
A No, sir. In this particular case considering that the involvement here of the heart
is the left ventricle which is a very thick portion of the heart. I don't think he
would die in less than ve minutes because the thick portion of the heart
serves as a sealer once the instrument is pulled out, the tendency of the
thick muscle is to close the injury so there is a much longer time for
survival." 3 1 (Emphasis supplied)
Second Issue: Partiality of the Trial Judge
Appellant declares that the trial judge was biased against him for propounding
questions that were well within the prerogative of the prosecution to explore and ask.
More pointedly, appellant alleges that the trial judge took over from the prosecution and
asked questions in a leading manner, 3 2 interrupted the cross-examination to help the
witness give answers favorable to the prosecution, 3 3 and asked questions which
pertained to matters of opinion and allusions of bad moral character, which could not be
objected to by defense, counsel, because they have been ventilated by the judge himself.
3 4 To substantiate the alleged bias and prejudice of the judge, appellant in his brief cited
several pages from the transcript of stenographic notes. 3 5
The allegation of bias and prejudice is not well-taken. It is a judge's prerogative and
duty to ask clari catory questions to ferret out the truth. 3 6 On the whole, the Court nds
that the questions propounded by the judge were merely clari catory in nature. Questions
which merely clear up dubious points and bring out additional relevant evidence are within
judicial prerogative. Moreover, jurisprudence teaches that allegations of bias on the part of
the trial court should be received with caution, especially when the queries by the judge did
not prejudice the accused. The propriety of a judge's queries is determined not necessarily
by their quantity but by their quality and, in any event, by the test of whether the defendant
was prejudiced by such questioning. In this case, appellant failed to demonstrate that he
was prejudiced by the questions propounded by the trial judge. In fact, even if all such
questions and the answers thereto were eliminated, appellant would still be convicted.
As correctly observed by the solicitor general, "there was no showing that the judge
had an interest, personal or otherwise, in the prosecution of the case at bar. He is
therefore, presumed to have acted regularly and in the manner [that] preserve[s] the ideal
of the 'cold neutrality of an impartial judge' implicit in the guarantee of due process
(Mateo, Jr. vs. Villaluz, 50 SCRA 18)." 3 7 That the trial judge believed the evidence of the
prosecution more than that of the defense, does not indicate that he was biased. He
simply accorded greater credibility to the testimony of the prosecution witnesses than to
that of the accused. 3 8
Alibi
Appellant's defense of alibi and denial is unavailing. For the defense of alibi to
prosper, the accused must prove not only that he was at some other place at the time the
crime was committed, but that it was likewise physically impossible for him to be at the
locus criminis at the time of the alleged crime. 3 9 This the appellant miserably failed to do.
Appellant contends that he was then asleep in his house at the time of the incident. This
was supported by his mother who stated that he was asleep from 9:00 p.m. to 6:00 a.m.
the next day 4 0 and by Rosemarie Malikdem who said that she visited the accused on the
night of May 24, 1993 to counsel him, which was her task in the Samahang
Magkakapitbahay. 4 1 Appellant failed to demonstrate, however, the distance between the
crime scene and his house. Indeed, he testi ed that his house was "near" the crime scene.
In any event, this defense cannot overturn the clear and positive testimony of the credible
eyewitnesses who located appellant at the locus criminis and identi ed him as the
assailant. 4 2
Aggravating Circumstances
The Court agrees with the trial court that appellant is guilty of murder for the death
of Antonio Dometita. We likewise agree that the prosecution was unable to prove the
aggravating circumstance of evident premeditation. For this circumstance to be
appreciated, there must be proof, as clear as the evidence of the crime itself, of the
following elements: 1) the time when the offender determined to commit the crime, 2) an
act manifestly indicating that he clung to his determination, and 3) a su cient lapse of
time between determination and execution to allow himself time to re ect upon the
consequences of his act. 4 3 These requisites were never established by the prosecution.
On the other hand, we disagree with the trial court that the killing was quali ed by
abuse of superior strength. "To properly appreciate the aggravating circumstance of
abuse of superior strength, the prosecution must prove that the assailant purposely used
excessive force out of proportion to the means of defense available to the person
attacked." 4 4 The prosecution did not demonstrate that there was a marked difference in
the stature and build of the victim and the appellant which would have precluded an
appropriate defense from the victim. Not even the use of a bladed instrument would
constitute abuse of superior strength if the victim was adequately prepared to face an
attack, or if he was obviously physically superior to the assailant.
Nonetheless, we hold that the killing was quali ed by treachery. "Treachery is
committed when two conditions concur, namely, that the means, methods, and forms of
execution employed gave the person attacked no opportunity to defend himself or to
retaliate[;] and that such means, methods, and forms of execution were deliberately and
consciously adopted by the accused without danger to his person." 4 5 "These requisites
were evidently present in this case when the accused appeared from nowhere and swiftly
and unexpectedly stabbed the victim just as he was bidding goodbye to his friend, Witness
Velasco. Said action rendered it di cult for the victim to defend himself. The presence of
"defense wounds" does not negate treachery because, as testi ed to by Velasco, the rst
stab, fatal as it was, was in icted on the chest. The incised wounds in the arms were
inflicted when the victim was already rendered defenseless.
Damages
The trial court awarded indemnity and actual and moral damages to the heirs of the
victim. We sustain the award of indemnity in the amount of P50,000, but we cannot do the
same for the actual and moral damages which must be supported by proof. In this case,
the trial court did not state any evidentiary basis for this award. We have examined the
records, but we failed to find any, either.
WHEREFORE, the appeal is hereby DENIED and the assailed Decision is AFFIRMED,
46but the award of actual and moral damages is DELETED for lack of factual basis. Costs
against appellant.
SO ORDERED. cdrep
Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ ., concur.
Footnotes
1. Rollo, pp. 13-17.
2. Penned by Judge Tirso D.C. Velasco.
3. Rollo, p. 5.
4. Records, p. 18.
5. Rollo, p. 17.
6. The case was deemed submitted for decision on February 6, 1997 upon receipt by this Court
of Appellee's Brief. The filing of a reply brief was deemed waived.
7. This Brief was signed by Assistant Solicitor General Carlos N. Ortega and Solicitor Geraldine
C. Fiel-Macaraig.
8. Appellee's Brief, pp. 3-5; Rollo, pp. 83-85.
9. Appellant's Brief, p. 1. This was signed by Attys. Salacnib Baterina and Ismael Baterina.
10. Decision, p. 3; Rollo, p. 15.

11. Appellant's Brief, pp. (50) i-ii.
12. People vs. Sumbillo, G.R. No. 105292, April 18, 1997; People vs. Quinao, G.R. No. 108454,
March 13, 1997; People vs. Nuestro, 240 SCRA 221, January 18, 1995.
13. People vs. Ombrog, G.R. No. 104666, February 12, 1997; People vs. Sumbillo, supra; People
vs. Ortega, G.R. No. 116736, July 24, 1997; People vs. de Guzman, 188 SCRA 405,
August 7, 1990.
14. People vs. Morin, 241 SCRA 709, February 24, 1995; People vs. Cogonon, 262 SCRA 693,
October 4, 1996.
15. TSN, September 1, 1993, p. 12.

16. Ibid., p. 51.
17. TSN, September 1, 1993, p. 11.

18. TSN, August 12, 1993, p. 10.
19. TSN, September 1, 1993, p. 13.
20. TSN, August 12, 1993, p. 8.

21. TSN, October 11, 1993, p. 8.
22. Ibid., pp. 9-10.

23. TSN, September 1, 1993, p. 14.
24. TSN, January 5, 1995, p. 8.
25. Ibid., p. 16.

26. Id., p. 17.
27. Id., p. 18.

28. TSN, January 5, 1995, p. 27.
29. Ibid., p. 30.
30. Decision, p. 4; Rollo, p. 16.

31. TSN, August 12, 1993, p. 12.
32. Appellant's Brief, p. 7.
33. Ibid., p. 8.
34. Id., p. 11.
35. Appellant's Brief, pp. 6-13.

36. People vs. Tabarno, 242 SCRA 456, March 20, 1995; Ventura vs. Yatco, 105 Phil 287, March
16, 1959; People vs. Catindihan, 97 SCRA 196, April 28, 1980.
37. Appellee's Brief, p. 13; Rollo, p. 93.

38. People vs. Tabarno, supra.
39. People vs. Umali, 242 SCRA 17, March 1, 1995; People vs. Hortillano, 177 SCRA 729,
September 19, 1989; People vs. Cabresos, 244 SCRA 362, May 26, 1995.
40. TSN, February 23, 1994, p. 4.
41. TSN, July 12, 1994, pp. 6-7.
42. People vs. Sumbillo, supra; People vs. Baydo, GR No. 113799, June 17, 1997.
43. People vs. Baydo, supra; People vs. Halili, 245 SCRA 340, June 27, 1995.
44. People vs. Ruelan, 231 SCRA 650, April 19, 1994; People vs. Casingal, 243 SCRA 37, March
29, 1995.
45. People vs. Maalat, GR No. 109814, July 8, 1997, per Romero, J.; People vs. Tuson , GR No.
106345-46, September 16, 1996.
46. As discussed, however, the killing is quali ed by treachery, not by abuse of superior
strength.

EN BANC
[G.R. No. 140756. April 4, 2003.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . JUAN GONZALES

ESCOTE, JR. @ Jun Mantika of Sta. Lucia, Angat, Bulacan and
VICTOR ACUYAN y OCHOVILLOS @ Vic Arroyo of Sto. Niño,
Poblacion, Bustos, Bulacan , accused-appellants.

Public Attorney's Office for accused-appellants.
SYNOPSIS
At past midnight on 28 September 1996, while Five Star Passenger Bus with plate
No. ABS-793 bound for Bolinao from Manila was travelling along the highway in Plaridel,
Bulacan, two felons announced a hold-up and thereafter divested the passengers of their
money and valuables and the bus conductor of his collections of the fares of the
passengers. On the occasion of the robbery, the two felons shot to death SPO1 Jose C.
Manio, Jr. despite the latter's pleas for mercy. Rodolfo Cacatian, the bus driver, and
Romulo Digap, the bus conductor, identi ed Juan Gonzales Escote, Jr. and Victor Acuyan
as the perpetrators of the crime. The two accused were charged, tried and subsequently
found guilty of the crime of robbery with homicide and were each sentenced to death. In
rendering judgment against the two accused, the trial court gave credence to the
testimonies of the prosecution witnesses and rejected accused's defense of alibi.
Hence, this automatic review.
Among others, accused-appellants assailed the credibility of the prosecution
witnesses. They contended that Rodolfo and Romulo failed to identify them as the
perpetrators of the crime charged.
The Court found the contention of accused-appellants unmeritorious. It held that it
is the most natural reaction of victims of violence to strive to see the appearance of the
perpetrators of the crime and to observe the manner in which the crime was committed.
Here, the Court found that both prosecution witnesses had a good look at both appellants
before, during and after they staged the robbery and before they alighted from the bus.
The evidence on record showed that Romulo stationed himself by the door of the bus
located in the mid-section of the vehicle. Juan seated himself in the middle row of the
passengers' seat near the center aisle, while Victor stood near the door of the bus about a
meter or so from Romulo. Romulo, Juan and Victor were, therefore, near each other.
Moreover, Juan had a face-to-face encounter with Romulo because he had divested the
latter of his collection of the fares from the passengers. After shooting SPO1 Manio, Jr. at
the rear portion of the bus, Juan and Victor passed by where Romulo was standing and
gave their instructions to him. Rodolfo, on the other hand, looked many times on the rear,
side and center view mirrors to observe the center and rear portions of the bus before and
during the robbery, Rodolfo thus saw Juan and Victor stage the robbery and kill the victim
with impunity. Thus, the Court held that the trial court committed no error in convicting
appellants of robbery with homicide. Nevertheless, it modi ed the penalty to reclusion
perpetua. According to the Court, although treachery is a generic aggravating
circumstance in robbery with homicide when the victim of homicide was killed by
treachery, the same cannot be appreciated against appellants because it was not alleged
in the information. aITDAE
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHTS OF THE ACCUSED; RIGHT

TO CONFRONT AND CROSS-EXAMINE THE WITNESSES; MAY BE WAIVED EXPRESSLY OR
IMPLIEDLY; ACTUAL CROSS-EXAMINATION NOT NECESSARILY REQUIRED BUT MERELY
AN OPPORTUNITY TO EXERCISE THE RIGHT TO CROSS-EXAMINE IF DESIRED. — The
Court agrees that the right to cross-examine is a constitutional right anchored on due
process. It is a statutory right found in Section 1(f), Rule 115 of the Revised Rules of
Criminal Procedure which provides that the accused has the right to confront and cross-
examine the witnesses against him at the trial. However, the right has always been
understood as requiring not necessarily an actual cross-examination but merely an
opportunity to exercise the right to cross-examine if desired. What is proscribed by
statutory norm and jurisprudential precept is the absence of the opportunity to cross-
examine. The right is a personal one and may be waived expressly or impliedly. There is an
implied waiver when the party was given the opportunity to confront and cross-examine an
opposing witness but failed to take advantage of it for reasons attributable to himself
alone. If by his actuations, the accused lost his opportunity to cross-examine wholly or in
part the witnesses against him, his right to cross-examine is impliedly waived. The
testimony given on direct examination of the witness will be received or allowed to remain
in the record.
2. ID.; ID.; ID.; APPELLANTS ARE ESTOPPED FROM QUESTIONING ALLEGED
DENIAL OF THE RIGHT. — Juan and Victor did not even le any motion to reopen the case
before the trial court rendered its decision to allow them to cross-examine Rodolfo. They
remained mute after judgment was rendered against them by the trial court. Neither did
they le any petition for certiorari with the Court of Appeals for the nulli cation of the
Order of the trial court dated January 20, 1998 declaring that they had waived their right to
cross-examine Rodolfo. It was only on appeal to this Court that Juan and Victor averred for
the rst time that they were deprived of their right to cross-examine Rodolfo. It is now too
late in the day for Juan and Victor to do so. The doctrine of estoppel states that if one
maintains silence when in conscience he ought to speak, equity will debar him from
speaking when in conscience he ought to remain silent. He who remains silent when he
ought to speak cannot be heard to speak when he should be silent.
3. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; IT IS THE MOST NATURAL
REACTION OF VICTIMS OF VIOLENCE TO STRIVE TO SEE THE APPEARANCE OF THE
PERPETRATORS OF THE CRIME AND TO OBSERVE THE MANNER IN WHICH THE CRIME
WAS COMMITTED. — The contention of accused-appellants Juan and Victor that Rodolfo
and Romulo failed to identify them as the perpetrators of the crime charged is disbelieved
by the trial court, thus: . . . . The Court agrees with the trial court. It may be true that Romulo
was frightened when Juan and Victor suddenly announced a holdup and red their guns
upward, but it does not follow that he and Rodolfo failed to have a good look at Juan and
Victor during the entire time the robbery was taking place. The Court has held in a catena
of cases that it is the most natural reaction of victims of violence to strive to see the
appearance of the perpetrators of the crime and to observe the manner in which the crime
was committed.
4. CRIMINAL LAW; ROBBERY WITH HOMICIDE; IN THE ABSENCE OF AN
EXPLANATION OF HOW ONE HAS COME INTO POSSESSION OF STOLEN EFFECTS
BELONGING TO A PERSON WOUNDED AND TREACHEROUSLY KILLED, HE MUST
NECESSARILY BE CONSIDERED THE AUTHOR OF THE AGGRESSION AND DEATH OF THE
SAID PERSON AND OF THE ROBBERY COMMITTED. — Moreover, when he was accosted
by SPO3 Romeo Meneses on October 25, 1997 in Tarlac, Tarlac, Juan was in possession
of the identi cation card of the slain police o cer. Juan failed to explain to the trial court
how and under what circumstances he came into possession of said identi cation card.
Juan must necessarily be considered the author of the robbery and the killing of SPO1
Manio, Jr. In People v. Mantung , we held: . . . [T]he recovery of part of the loot from
Mantung or the time of his arrest gave rise to a legal presumption of his guilt. As this Court
has held, '[I]n the absence of an explanation of how one has come into possession of
stolen effects belonging to a person wounded and treacherously killed, he must
necessarily be considered the author of the aggression and death of the said person and
of the robbery committed on him.' IcaHCS
5. REMEDIAL LAW; EVIDENCE; NO LAW OR POLICE REGULATION REQUIRING A

POLICE LINE-UP FOR PROPER IDENTIFICATION IN EVERY CASE; CASE AT BAR. — While
police investigators did not place Juan and Victor in a police line-up for proper
identification by Rodolfo and Romulo, it cannot thereby be concluded that absent such line-
up, their identi cation by Romulo and Rodolfo as the authors of the robbery with homicide
was unreliable. There is no law or police regulation requiring a police line-up for proper
identi cation in every case. Even if there was no police line-up, there could still be proper
and reliable identi cation as long as such identi cation was not suggested or instigated to
the witness by the police. In this case, there is no evidence that the police o cers had
supplied or even suggested to Rodolfo and Romulo the identities of Juan and Victor as the
perpetrators of the robbery and the killing of SPO1 Manio, Jr.
6. CRIMINAL LAW; ROBBERY WITH HOMICIDE; ELEMENTS. — The Court nds
that the trial court committed no error in convicting Juan and Victor of robbery with
homicide. . . . To warrant the conviction of Juan and Victor for the said charge, the
prosecution was burdened to prove the con uence of the following essential elements: . . .
(a) the taking of personal property with the use of violence or intimidation against a
person; (b) the property thus taken belongs to another; (c) the taking is characterized by
intent to gain or animus lucrandi and (d) on the occasion of the robbery or by reason
thereof, the crime of homicide, which is therein used in a generic sense, was committed . . .
.
7. ID.; ID.; INTENT TO ROB MUST PRECEDE THE TAKING OF HUMAN LIFE. — The
intent to rob must precede the taking of human life. In robbery with homicide, so long as
the intention of the felons was to rob, the killing may occur before, during or after the
robbery.
8. ID.; ID.; COMMITTED EVEN IF THE VICTIM OF ROBBERY IS OTHER THAN THE
VICTIM OF THE HOMICIDE. — Even if the victim of robbery is other than the victim of the
homicide committed on the occasion of or by reason of the robbery, nevertheless, there is
only one single and indivisible felony of robbery with homicide. All the crimes committed
on the occasion or by reason of the robbery are merged and integrated into a single and
indivisible felony of robbery with homicide. This was the ruling of the Supreme Court of
Spain on September 9, 1886, et sequitur cited by this Court in People v. Mangulabnan, et al .
We see, therefore, that in order to determine the existence of the crime of robbery with
homicide it is enough that a homicide would result by reason or on the occasion of the
robbery (Decision of the Supreme Court of Spain of November 26, 1892, and January 7,
1878, quoted in 2 Hidalgo's Penal Code, pp. 267 and 259-260, respectively). This High
Tribunal speaking of the accessory character of the circumstances leading to the
homicide, has also held that it is immaterial that the death would supervene by mere
accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July 14,
1917), provided that the homicide be produced by reason or on occasion of the robbery,
inasmuch as it is only the result obtained, without reference or distinction as to the
circumstances, causes, modes or persons intervening in the commission of the crime, that
has to be taken into consideration (Decision of January 12, 1889 — see Cuello Calon's
Codigo Penal, pp. 501-502).
9. ID.; ID.; ALL THOSE WHO TOOK PART IN THE ROBBERY WILL BE HELD
GUILTY THEREOF ALTHOUGH THEY DID NOT TAKE PART IN THE HOMICIDE, UNLESS IT
APPEARS THAT THEY ENDEAVORED TO PREVENT THE HOMICIDE. — Case law has it that
whenever homicide has been committed by reason of or on the occasion of the robbery, all
those who took part as principals in the robbery will also be held guilty as principals of
robbery with homicide although they did not take part in the homicide, unless it appears
that they endeavored to prevent the homicide. In this case, the prosecution proved beyond
reasonable doubt that Juan and Victor conspired and confabulated together in robbing the
passengers of the Five Star Bus of their money and valuables and Romulo of his
collections of the fares of the passengers and in killing SPO1 Manio, Jr. with impunity on
the occasion of the robbery. Hence, both Juan and Victor are guilty as principals by direct
participation of the felony of robbery with homicide under paragraph 1, Article 294 of the
Revised Penal Code, as amended by R.A. 7659, punishable by reclusion perpetua to death.
aIETCA
10. ID.; ID.; IMPOSABLE PENALTY. — There being no modifying circumstances in

the commission of the felony of robbery with homicide, Juan and Victor should each be
meted the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal
Code.
11. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; ELEMENTS. — The Court
agrees with the trial court that treachery was attendant in the commission of the crime.
There is treachery when the following essential elements are present, viz: (a) at the time of
the attack, the victim was not in a position to defend himself; and (b) the accused
consciously and deliberately adopted the particular means, methods or forms of attack
employed by him. The essence of treachery is the sudden and unexpected attack by an
aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself
and thereby ensuring its commission without risk of himself.
12. ID.; ID.; ID.; APPRECIATED EVEN IF VICTIM WAS WARNED OF THE DANGER
TO HIS LIFE WHERE HE WAS DEFENSELESS AND UNABLE TO FLEE AT TIME OF THE
INFLICTION OF THE COUP DE GRACE; CASE AT BAR. — Treachery may also be appreciated
even if the victim was warned of the danger to his life where he was defenseless and
unable to flee at the time of the infliction of the coup de grace. In the case at bar, the victim
suffered six wounds, one on the mouth, another on the right ear, one on the shoulder,
another on the right breast, one on the upper right cornea of the sternum and one above
the right iliac crest. Juan and Victor were armed with handguns. They rst disarmed SPO1
Manio, Jr. and then shot him even as he pleaded for dear life. When the victim was shot, he
was defenseless. He was shot at close range, thus insuring his death. The victim was on
his way to rejoin his family after a hard day's work. Instead, he was mercilessly shot to
death, leaving his family in grief for his untimely demise. The killing is a grim example of the
utter inhumanity of man to his fellowmen.
13. ID.; PENALTIES; TREACHERY SHOULD BE CONSIDERED A GENERIC
AGGRAVATING CIRCUMSTANCE IN ROBBERY WITH HOMICIDE FOR THE IMPOSITION OF
THE PROPER PENALTY. — Article 62, paragraph 1 of the Revised Penal Code provides that
in diminishing or increasing the penalty for a crime, aggravating circumstances shall be
taken into account. However, aggravating circumstances which in themselves constitute a
crime specially punishable by law or which are included by the law in de ning a crime and
prescribing a penalty therefor shall not be taken into account for the purpose of increasing
the penalty. Under paragraph 2 of the law, the same rule shall apply with respect to any
aggravating circumstances inherent in the crime to such a degree that it must of necessity
accompany the commission thereof. Treachery is not an element of robbery with
homicide. Neither does it constitute a crime specially punishable by law nor is it included
by the law in de ning the crime of robbery with homicide and prescribing the penalty
therefor. Treachery is likewise not inherent in the crime of robbery with homicide. Hence,
treachery should be considered as a generic aggravating circumstance in robbery with
homicide for the imposition of the proper penalty for the crime.
14. ID.; ID.; TREACHERY INCREASES THE PENALTY FOR THE CRIME OF
ROBBERY WITH HOMICIDE ABSENT ANY GENERIC MITIGATING CIRCUMSTANCE. — In
ne, in the application of treachery as a generic aggravating circumstance to robbery with
homicide, the law looks at the constituent crime of homicide which is a crime against
persons and not at the constituent crime of robbery which is a crime against property.
Treachery is applied to the constituent crime of "homicide" and not to the constituent
crime of "robbery" of the special complex crime of robbery with homicide. The crime of
robbery with homicide does not lose its classi cation as a crime against property or as a
special complex and single and indivisible crime simply because treachery is appreciated
as a generic aggravating circumstance. Treachery merely increases the penalty for the
crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating
circumstance. ASHaDT
15. ID.; ID.; TREACHERY SHALL BE APPRECIATED AGAINST ALL THE FELONS
WHO HAD KNOWLEDGE OF THE MANNER OF KILLING OF VICTIMS OF HOMICIDE. —
Article 62, paragraph 4 of the Revised Penal Code which was taken from Article 80 of the
Codigo Penal Reformado de 1870, provides that circumstances which consist in the
material execution of the act, or in the means employed to accomplish it, shall serve to
aggravate or mitigate the liability of those persons only who had knowledge of them at the
time of the execution of the act or their cooperation therein. The circumstances attending
the commission of a crime either relate to the persons participating in the crime or into its
manner of execution or to the means employed. The latter has a direct bearing upon the
criminal liability of all the accused who have knowledge thereof at the time of the
commission of the crime or of their cooperation thereon. Accordingly, the Spanish
Supreme Court held in its Sentencia dated December 17, 1875 that where two or more
persons perpetrate the crime of robbery with homicide, the generic aggravating
circumstance of treachery shall be appreciated against all of the felons who had
knowledge of the manner of the killing of victims of homicide.
16. ID.; ID.; TREACHERY CANNOT AGGRAVATE THE PENALTY FOR THE CRIME
IF NOT ALLEGED IN THE INFORMATION EVEN IF PROVEN DURING THE TRIAL. — Be that
as it may, treachery cannot be appreciated against Juan and Victor in the case at bar
because the same was not alleged in the Information as mandated by Section 8, Rule 110
of the Revised Rules on Criminal Procedure which reads: Sec. 8 . Designation of the
offense. — The complaint or information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense and specify its qualifying
and aggravating circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it. Although at the time the
crime was committed, generic aggravating circumstance need not be alleged in the
Information, however, the general rule had been applied retroactively because it is more
favorable to the accused. Even if treachery is proven but it is not alleged in the information,
treachery cannot aggravate the penalty for the crime.
17. ID.; ROBBERY WITH HOMICIDE; CIVIL LIABILITY OF ACCUSED. — Since the
penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the victim are
entitled to civil indemnity in the amount of P50,000.00. The heirs are also entitled to moral
damages in the amount of P50,000.00, Rosemarie Manio having testi ed on the factual
basis thereof. Considering that treachery aggravated the crime, the heirs are also entitled
to exemplary damages in the amount of P25,000.00. This Court held in People vs. Catubig
that the retroactive application of Section 8, Rule 110 of the Revised Rules of Criminal
Procedure should not impair the right of the heirs to exemplary damages which had
already accrued when the crime was committed prior to the effectivity of the said rule.
Juan and Victor are also jointly and severally liable to the said heirs in the total amount of
P30,000.00 as actual damages, the prosecution having adduced evidence receipts for said
amounts. The heirs are not entitled to expenses allegedly incurred by them during the wake
as such expenses are not supported by receipts. However, in lieu thereof, the heirs are
entitled to temperate damages in the amount of P20,000.00. The service rearm of the
victim was turned over to the Evidence Custodian of the Caloocan City Police Station per
order of the trial court on October 22, 1997. The prosecution failed to adduce
documentary evidence to prove the claim of Five Star Bus, Inc. in the amount of P6,000.00.
Hence, the award should be deleted. However, in lieu of actual damages, the bus company
is entitled to temperate damages in the amount of P3,000.00.
18. CIVIL LAW; DAMAGES; LOST EARNING CAPACITY; COMPUTATION. — The
heirs are likewise entitled to damages for the lost earnings of the victim. The evidence on
record shows that SPO1 Manio, Jr. was born on August 25, 1958. He was killed on
September 28, 1996 at the age of 38. He had a gross monthly salary as a member of the
Philippine National Police of P8,065.00 or a gross annual salary of P96,780.00. Hence, the
heirs are entitled to the amount of P1,354,920.00 by way of lost earnings of the victim
computed, thus:
Age of the victim = 38 years old
Life expectancy = 2/3 x (80 - age of the victim at the time of death)
= 2/3 x (80-38)
= 2/3 x 42
= 28 years
Gross Annual Income = gross monthly income x 12 months
= P8,065.00 x 12
= P96,780.00
Living Expenses = 50% of Gross Annual Income
= P96,780.00 x 0.5
= P48,390.00
Lost Earning Capacity = Life expectancy x [Gross Annual
Income-Living expenses]
= 28 x [P96,780.00 - P48,390.00]
= 28 x P48,390.00
= P1,354,920.00

VITUG, J. , separate opinion:
1. CRIMINAL LAW; PENALTIES; APPLICATION OF PENALTIES; ORDINARY
COMPLEX CRIME DIFFERENTIATED FROM SPECIAL COMPLEX CRIME. — Unlike ordinary
complex crimes, robbery with homicide, de ned by Article 294 of the Revised Penal Code,
is a special complex crime against property, explicitly carrying a corresponding penalty of
reclusion perpetua to death. In an ordinary complex crime, Article 48 of the Revised Penal
Code expresses that "the penalty for the most serious crime shall be imposed, the same to
be applied in its maximum period." Article 48 means then that in the imposition of the
penalty for such an ordinary complex crime, i.e., where no speci c penalty is prescribed for
the complex crime itself, the composite offenses and their respective penalties are
individually factored, and it is possible, indeed warranted, that any aggravating
circumstance, generic or quali ed, even if it be peculiar to only one of the constituent
crimes, can and should be logically considered in order to determine which of the
composite crimes is the "most serious crime," the penalty for which shall then "be applied
in its maximum period." The rule evidently is not in square with a special complex crime,
like robbery with homicide, where the law effectively treats the offense as an individual
felony in itself and then prescribes a specific penalty therefor.
EaScHT
2. ID.; SPECIAL COMPLEX CRIMES; ROBBERY WITH HOMICIDE; ANY

CIRCUMSTANCE THAT CAN AGGRAVATE THE PENALTY SHOULD BE GERMANE AND
GENERIC NOT TO ONE BUT TO BOTH OF THE CONSTITUENT OFFENSES THAT
COMPROMISE THE ELEMENTS OF THE CRIME. — Article 294 is explicit, and it provides —
"Art. 294. Any person guilty of robbery with the use of violence against or intimidation of
any person shall suffer: "(1) The penalty of reclusion perpetua to death, when by reason or
on the occasion of the robbery, the crime of homicide shall have been committed, or when
the robbery shall have been accompanied by rape or intentional mutilation or arson." There
being just an independent prescribed penalty for the offense, any circumstance that can
aggravate that penalty should be germane and generic not to one but to both of the
constituent offenses that comprise the elements of the crime. The suggestion that
treachery could be appreciated "only insofar" as the killing is concerned would unavoidably
be to consider and hold robbery and homicide as being separately penalized and to thus
discount its classi cation under Article 294 of the Code as a distinct crime itself with a
distinct penalty prescribed therefor. Most importantly, such interpretation would be to
treat the special complex crime of robbery with homicide no differently from ordinary
complex crimes de ned under Article 48, where the composite crimes are separately
regarded and weighed in the ultimate imposition of the penalty. If such were intended, the
law could have easily so provided, with the penalty for the higher of the two offenses to be
then accordingly imposed on the malefactor. In prescribing, however, the penalty of
reclusion perpetua to death, where homicide results by reason or on occasion of the
robbery, the law has virtually taken into account the particularly "nefarious" nature of the
crime, where human life is taken, howsoever committed, to pursue the criminal intent to
gain with the use of violence against or intimidation of any person.
3. ID.; ID.; RATIONALE FOR PRESCRIBING DISTINCT PENALTIES. — Distinct
penalties prescribed by law in special complex crimes is in recognition of the primacy
given to criminal intent over the overt acts that are done to achieve that intent. This
conclusion is made implicit in various provisions of the Revised Penal Code. Thus,
practically all of the justifying circumstances, as well as the exempting circumstances of
accident (paragraph 4, Article 12) and lawful or insuperable cause (paragraph 7, Article
12), are based on the lack of criminal intent. In felonies committed by means of dolo, as
opposed to those committed by means of culpa (including offenses punished under
special laws), criminal intent is primordial and overt acts are considered basically as being
mere manifestations of criminal intent. Paragraph 2, Article 4, of the Revised Penal Code
places emphasis on "intent" over effect, as it assigns criminal liability to one who has
committed an "impossible crime," said person having intended and pursued such intent to
commit a felony although, technically, no crime has actually been committed. Article 134
of the same Code, penalizing the crime of rebellion, imposes a distinct penalty, the rebel
being moved by a single intent which is to overthrow the existing government, and ignores
individual acts committed in the furtherance of such intent.
4. ID.; ID.; ROBBERY WITH HOMICIDE; HOMICIDE MUST BE UNDERSTOOD IN ITS
GENERIC SENSE. — If a circumstance, peculiar to only one of the composite crimes, could
at all be allowed to aggravate the penalty in robbery with homicide, it should be with
respect to the main offense of robbery, the intent to gain being the moving force that
impels the malefactor to commit the crime. The attendant offense of homicide cannot be
further modi ed, "homicide" this time being so understood, as it should be, in its generic
sense, comprehending even murder or parricide, when committed "by reason or on the
occasion of the robbery." The generic character of "homicide" in this special complex
crime, has been exempli ed, for instance, in People vs. Mangulabnan, where the Court has
held that, "[i]n order to determine the existence of the crime of robbery with homicide, it is
enough that a homicide would result by reason or on the occasion of the robbery and it is
immaterial that the death would supervene by mere accident provided that the homicide
be produced by reason or on occasion of the robbery inasmuch as it is only the result
obtained, without reference or distinction as to the circumstances, causes, modes or
persons intervening in the commission of the crime, that has to be taken into
consideration." If the term "homicide" were not to be understood in its generic sense, an
aggravating circumstance, such as evident premeditation or treachery, would qualify the
killing into murder. Two separate crimes of robbery and homicide inevitably would result
that effectively would place the two felonies outside the coverage of Article 294. And, as
to whether or not those crimes should be complexed with each other would depend on the
attendance of the requisites enumerated in Article 48 for ordinary complex crimes, i.e., a)
that a single act constitutes two or more grave or less grave felonies or, b) that an offense
is a necessary means for committing the other.
5. ID.; ID.; ID.; A CRIME AGAINST PROPERTY; TREACHERY CANNOT BE
APPRECIATED AS AGGRAVATING CIRCUMSTANCE IN THE COMMISSION OF THE CRIME.
— It is on the foregoing predicate, I am convinced, that this Court in People vs. Timple has
rejected the idea of appreciating treachery as being an aggravating circumstance in the
crime of robbery with homicide, an offense, I might repeat, is by law classi ed as a crime
against property. I certainly will not view the ruling as having been made in any cavalier
fashion and with little or no effort for an introspective ratiocination. Timple has, in fact,
been stressed in People vs. Arizobal, viz: "But treachery was incorrectly considered by the
trial court. The accused stand charged with, tried and convicted of robbery with homicide.
This special complex crime is primarily classi ed in this jurisdiction as a crime against
property, and not against persons, homicide being merely an incident of robbery with the
latter being the main purpose and object of the criminals. As such, treachery cannot be
validly appreciated as an aggravating circumstance under Art. 14 of The Revised Penal
Code. (People v. Bariquit , G.R. No. 122733, 2 October 2000, 341 SCRA 600.) This is
completely a reversal of the previous jurisprudence on the matter decided in a litany of
cases before People v. Bariquit."

DECISION
CALLEJO, SR., J : p
Robbery with homicide is classi ed as a crime against property. Nevertheless,

treachery is a generic aggravating circumstance in said crime if the victim of homicide is
killed treacherously. The Supreme Court of Spain so ruled. So does the Court rule in this
case, as it had done for decades.
Before the Court on automatic review is the Decision 1 of Branch 11 of the Regional
Trial Court of Bulacan in Criminal Case No. 443-M-97 convicting accused-appellants Juan
Gonzales Escote, Jr. and Victor Acuyan of the complex crime of robbery with homicide,
meting on each of them the supreme penalty of death, and ordering them to pay the heirs
of the victim, SPO1 Jose C. Manio, Jr., the total amount of P300,000.00 by way of actual
and moral damages and to pay to Five Star Bus, Inc., the amount of P6,000.00 by way of
actual damages.
The Facts
The antecedent facts as established by the prosecution are as follows:
On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of Five
Star Passenger Bus bearing Plate No. ABS-793, drove the bus from its terminal at Pasay
City to its destination in Bolinao, Pangasinan. Also on board was Romulo Digap, the regular
conductor of the bus, as well as some passengers. At Camachile, Balintawak, six
passengers boarded the bus, including Victor Acuyan and Juan Gonzales Escote, Jr. who
were wearing maong pants, rubber shoes, hats and jackets. 2 Juan seated himself on the
third seat near the aisle, in the middle row of the passengers' seats, while Victor stood by
the door in the mid-portion of the bus beside Romulo. Another passenger, SPO1 Jose C.
Manio, Jr., a resident of Angeles City, was seated at the rear portion of the bus on his way
home to Angeles City. Tucked on his waist was his service gun bearing Serial Number
769806. Every now and then, Rodolfo looked at the side view mirror as well as the rear
view and center mirrors installed atop the driver's seat to monitor any incoming and
overtaking vehicles and to observe the passengers of the bus.
The lights of the bus were on even as some of the passengers slept. When the bus
was travelling along the highway in Plaridel, Bulacan, Juan and Victor suddenly stood up,
whipped out their handguns and announced a holdup. Petri ed, Rodolfo glanced at the
center mirror towards the passengers' seat and saw Juan and Victor armed with
handguns. Juan red his gun upward to awaken and scare off the passengers. Victor
followed suit and red his gun upward. Juan and Victor then accosted the passengers and
divested them of their money and valuables. Juan divested Romulo of the fares he had
collected from the passengers. The felons then went to the place Manio, Jr. was seated
and demanded that he show them his identi cation card and wallet. Manio, Jr. brought out
his identi cation card bearing No. 00898. 3 Juan and Victor took the identi cation card of
the police o cer as well as his service gun and told him: "Pasensya ka na Pare, papatayin
ka namin, baril mo rin and papatay sa iyo." The police o cer pleaded for mercy: "Pare
maawa ka sa akin. May pamilya ako." However, Victor and Juan ignored the plea of the
police o cer and shot him on the mouth, right ear, chest and right side of his body. Manio,
Jr. sustained six entrance wounds. He fell to the oor of the bus. Victor and Juan then
moved towards the driver Rodolfo, seated themselves beside him and ordered the latter to
maintain the speed of the bus. Rodolfo heard one of the felons saying: "Ganyan lang ang
pumatay ng tao. Parang pumapatay ng manok." The other said: "Ayos na naman tayo pare.
Malaki-laki ito." Victor and Juan further told Rodolfo that after they (Victor and Juan) shall
have alighted from the bus, he (Rodolfo) should continue driving the bus and not report the
incident along the way. The robbers assured Rodolfo that if the latter will follow their
instructions, he will not be harmed. Victor and Juan ordered Rodolfo to stop the bus along
the overpass in Mexico, Pampanga where they alighted from the bus. The robbery was
over in 25 minutes.
When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo forthwith
reported the incident to the police authorities. The cadaver of SPO1 Manio, Jr. was brought
to the funeral parlor where Dr. Alejandro D. Tolentino, the Municipal Health O cer of
Mabalacat, Pampanga, performed an autopsy on the cadaver of the police o cer. The
doctor prepared and signed an autopsy report detailing the wounds sustained by the
police officer and the cause of his death:
"Body still accid (not in rigor mortis) bathed with his own blood. There
were 6 entrance wounds and 6 exit wounds. All the entrance were located on his
right side. An entrance (0.5 cm x 0.5 cm.) located infront of the right ear exited at
the left side just below the ear lobe. Another entrance through the mouth exited at
the back of the head fracturing the occiput with an opening of (1.5 cm x 2 cm).
Blood CSF and brain tissues came out. Another fatal bullet entered at the upper
right cornea of the sternum, entered the chest cavity pierced the heart and left
lung and exited at the left axillary line. Severe hemorrhage in the chest cavity
came from the heart and left lung. The other 3 bullets entered the right side and
exited on the same side. One entrance at the top of the right shoulder exited at the
medial side of the right arm. The other entered above the right breast and exited
at the right lateral abdominal wall travelling below muscles and subcutaneous
tissues without entering the cavities. Lastly another bullet entered above the right
iliac crest travelled superficially and exited above the right inguinal line.
Cause of Death:
Shock, massive internal and external hemorrhage, complete brain
destruction and injury to the heart and left lung caused by multiple gunshot
wounds." 4
Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they
reported the robbery and gave their respective sworn statements. 5 SPO1 Manio, Jr. was
survived by his wife Rosario Manio and their four young children. Rosario spent P20,000.00
for the co n and P10,000.00 for the burial lot of the slain police o cer. 6 Manio, Jr. was
38 years old when he died and had a gross salary of P8,085.00 a month. 7
Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3 Romeo
Meneses, the team leader of Alert Team No. 1 of Tarlac Police Station, and PO3 Florante S.
Ferrer were at the police checkpoint along the national highway in Tarlac, Tarlac. At the
time, the Bambang-Concepcion bridge was closed to tra c and the police o cers were
tasked to divert tra c to the Sta. Rosa road. Momentarily, a white colored taxi cab without
any plate number on its front fender came to view. Meneses stopped the cab and asked
the driver, who turned out to be the accused Juan Gonzales Escote, Jr., for his
identi cation card. Juan told Meneses that he was a policeman and handed over to
Meneses the identi cation card of SPO1 Manio, Jr. and the money which Juan and Victor
took from Manio, Jr. during the heist on September 28, 1996. 8 Meneses became
suspicious when he noted that the identi cation card had already expired on March 16,
1995. He asked Juan if the latter had a new pay slip. Juan could not produce any. He nally
confessed to Meneses that he was not a policeman. Meneses brought Juan to the police
station. When police o cers frisked Juan for any deadly weapon, they found ve live
bullets of a 9 millimeter rearm in his pocket. The police o cers con scated the
ammunition. In the course of the investigation, Juan admitted to the police investigators
that he and Victor, alias Victor Arroyo, staged the robbery on board Five Star Bus and are
responsible for the death of SPO1 Manio, Jr. in Plaridel, Bulacan. Meneses and Ferrer
executed their joint a davit of arrest of Juan. 9 Juan was subsequently turned over to the
Plaridel Police Station where Romulo identi ed him through the latter's picture as one of
those who robbed the passengers of the Five Star Bus with Plate No. ABS-793 and killed
SPO1 Manio, Jr. on September 28, 1996. In the course of their investigation, the Plaridel
Police Station Investigators learned that Victor was a native of Laoang, Northern Samar. 1 0
On April 4, 1997, an Information charging Juan Gonzales Escote, Jr. and Victor Acuyan with
robbery with homicide was led with the Regional Trial Court of Bulacan. The Information
reads:
That on or about the 28th day of September 1996, in the municipality of
Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating together
and mutually helping each other, armed with rearms, did then and there wilfully,
unlawfully and feloniously, with intent of (sic) gain and by means of force,
violence and intimidation, take, rob and carry away with one (1) necklace and
cash in [the] undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the
damage and prejudice of the said owner in the said undetermine[d] amount; that
simultaneously or on the occassion (sic) of said robbery, said accused by means
of violence and intimidation and in furtherance of their conspiracy attack, assault
and shoot with the service rearm of the said SPO1 Jose C. Manio, Jr., thereby
in icting serious physical injuries which resulted (sic) the death of the said SPO1
Jose C. Manio, Jr.
Contrary to law. 1 1
On the strength of a warrant of arrest, the police o cers arrested Victor in Laoang,
Northern Samar and had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty.
Ramiro Osorio, their counsel de parte, Juan and Victor were duly arraigned and entered
their plea of not guilty to the charge. Trial thereafter ensued. After the prosecution had
rested its case on August 26, 1998, Juan escaped from the provincial jail. 1 2 The trial court
issued a bench warrant on September 22, 1998 for the arrest of said accused-appellant. 1 3
In the meantime, Victor adduced his evidence.
Victor denied the charge and interposed the defense of alibi. He testi ed that in
1996, he worked as a tire man in the vulcanizing shop located in Banga I, Plaridel, Bulacan
owned by Tony Boy Negro. On one occasion, Ilarde Victorino, a customer of Tony Boy
Negro, ordered Victor to sell a tire. Victor sold the tire but did not turn over the proceeds
of the sale to Ilarde. The latter hated Victor for his misdeed. The shop was later
demolished and after two months of employment, Victor returned to Barangay Muwal-
Buwal, Laoang, Northern Samar. On September 26, 1996, at 9:30 p.m., Victor was at the
town fiesta in Laoang. Victor and his friends, Joseph Iringco and Rickey Lorcio were having
a drinking spree in the house of Barangay Captain Ike Baluya. At 11:30 p.m., the three left
the house of the barangay captain and attended the public dance at the town auditorium.
Victor and his friends left the auditorium at 5:30 a.m. of September 27, 1996. Victor
likewise testi ed that he never met Juan until his arrest and detention at the Bulacan
Provincial Jail. One of the inmates in said provincial jail was Ilarde Victorino. Victor learned
that Ilarde implicated him for the robbery of the Five Star Bus and the killing of SPO1
Manio, Jr. to hit back at him for his failure to turn over to Ilarde the proceeds of the sale of
the latter's tire.
On January 14, 1999, Juan was rearrested in Daet, Camarines Norte. 1 4 However, he
no longer adduced any evidence in his behalf.
The Verdict of the Trial Court
On March 11, 1999, the trial court rendered its Decision judgment nding Juan and
Victor guilty beyond reasonable doubt of the crime charged, meted on each of them the
penalty of death and ordered them to pay P300,000.00 as actual and moral damages to
the heirs of the victim and to pay the Five Star Bus Company the amount of P6,000.00 as
actual damages. The decretal portion of the decision reads:
WHEREFORE, this Court nds both accused, Juan Gonzales Escote, Jr. and
Victor Acuyan GUILTY beyond reasonable doubt of Robbery with Homicide as
penalized under Art. 294 of the Revised Penal Code as amended and hereby
sentences both to suffer the supreme penalty of Death and to indemnify the heirs
of the late SPO1 Jose C. Manio, Jr., the amount of P300,000.00 as actual and
moral damages and to pay the Five Star Bus P6,000.00 as actual damage.
SO ORDERED. 1 5
Assignment of Errors
Juan and Victor assail the Decision of the trial court and contend that:
I
THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND

ROMULO DIGAP, DRIVER AND CONDUCTOR OF THE FIVE STAR BUS,
RESPECTIVELY, WERE ABLE TO POSITIVELY IDENTIFY THE TWO (2) MEN WHO
HELD-UP THEIR BUS AND KILLED ONE PASSENGER THEREOF AT AROUND 3:00
O'CLOCK IN THE EARLY MORNING OF SEPTEMBER 28, 1996.
II
THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE. 1 6
The Court's Verdict

Anent the rst assignment of error, Juan and Victor contend that the trial court
committed a reversible error in relying on the testimony of Rodolfo, the bus conductor, for
convicting them of the crime charged. They aver that although their counsel was able to
initially cross-examine Rodolfo, the former failed to continue with and terminate his cross-
examination of the said witness through no fault of his as the witness failed to appear in
subsequent proceedings. They assert that even if the testimonies of Rodolfo and Romulo
were to be considered, the two witnesses were so petri ed during the robbery that they
were not able to look at the felons and hence could not positively identify accused-
appellants as the perpetrators of the crime. They argue that the police investigators never
conducted a police line-up for the identification of the authors of the crime.
The contentions of Juan and Victor are not meritorious. There is no factual and legal
basis for their claim that they were illegally deprived of their constitutional and statutory
right to fully cross-examine Rodolfo. The Court agrees that the right to cross-examine is a
constitutional right anchored on due process. 1 7 It is a statutory right found in Section 1(f),
Rule 115 of the Revised Rules of Criminal Procedure which provides that the accused has
the right to confront and cross-examine the witnesses against him at the trial. However,
the right has always been understood as requiring not necessarily an actual cross-
examination but merely an opportunity to exercise the right to cross-examine if desired. 1 8
What is proscribed by statutory norm and jurisprudential precept is the absence of the
opportunity to cross-examine. 1 9 The right is a personal one and may be waived expressly
or impliedly. There is an implied waiver when the party was given the opportunity to
confront and cross-examine an opposing witness but failed to take advantage of it for
reasons attributable to himself alone. 2 0 If by his actuations, the accused lost his
opportunity to cross-examine wholly or in part the witnesses against him, his right to
cross-examine is impliedly waived. 2 1 The testimony given on direct examination of the
witness will be received or allowed to remain in the record. 2 2
In this case, the original records show that after several resettings, the initial trial for
the presentation by the prosecution of its evidence-in-chief was set on November 18, 1997
and December 5, 1997, both at 9:00 a.m. 2 3 Rodolfo testi ed on direct examination on
November 18, 1997. The counsel of Juan and Victor forthwith commenced his cross-
examination of the witness but because of the manifestation of said counsel that he
cannot nish his cross-examination, the court ordered the continuation thereof to
December 5, 1997. 2 4 On December 5, 1997, Rodolfo did not appear before the court for
the continuation of his cross-examination but Rosemarie Manio, the widow of the victim
did. The prosecution presented her as witness. Her testimony was terminated. The court
ordered the continuation of the trial for the cross-examination of Rodolfo on January 20,
1998 at 8:30 a.m. 2 5 During the trial on January 20, 1998, Rodolfo was present but
accused-appellants' counsel was absent. The court issued an order declaring that for
failure of said counsel to appear before the court for his cross-examination of Rodolfo,
Victor and Juan waived their right to continue with the cross-examination of said witness.
2 6 During the trial set for February 3, 1998, the counsel of Juan and Victor appeared but did
not move for a reconsideration of the court's order dated January 20, 1998 and for the
recall of Rodolfo Cacatian for further cross-examination. It behooved counsel for Juan and
Victor to le said motion and pray that the trial court order the recall of Rodolfo on the
witness stand. Juan and Victor cannot just fold their arms and supinely wait for the
prosecution or for the trial court to initiate the recall of said witness. Indeed, the Court held
in Fulgado vs. Court of Appeals, et al.:
xxx xxx xxx
The task of recalling a witness for cross examination is, in law, imposed on
the party who wishes to exercise said right. This is so because the right, being
personal and waivable, the intention to utilize it must be expressed. Silence or
failure to assert it on time amounts to a renunciation thereof. Thus, it should be
the counsel for the opposing party who should move to cross-examine plaintiff's
witnesses. It is absurd for the plaintiff himself to ask the court to schedule the
cross-examination of his own witnesses because it is not his obligation to ensure
that his deponents are cross-examined. Having presented his witnesses, the
burden shifts to his opponent who must now make the appropriate move. Indeed,
the rule of placing the burden of the case on plaintiff's shoulders can be
construed to extremes as what happened in the instant proceedings. 2 7
The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of
the non-availability of the other witnesses of the prosecution. 2 8 On March 31, 1998, the
prosecution presented Dr. Alejandro Tolentino, PO2 Rene de la Cruz and Romulo Digap.
During the trial on April 17, 1998, the counsel of Juan and Victor failed to appear. The trial
was reset to June 3, 19 and 26, 1998. 2 9 The trial scheduled on June 3, 1998 was cancelled
due to the absence of the counsel of Juan and Victor. The court issued an order appointing
Atty. Roberto Ramirez as counsel for accused-appellants. 3 0
During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and
Victor. The prosecution rested its case after the presentation of SPO2 Romeo Meneses
and formally offered its documentary evidence. The next trial was set on September 23,
1998 at 8:30 a.m. 3 1 On November 11, 1998, Juan and Victor commenced the presentation
of their evidence with the testimony of Victor. 3 2 They rested their case on January 27,
1999 without any evidence adduced by Juan.
Juan and Victor did not even le any motion to reopen the case before the trial court
rendered its decision to allow them to cross-examine Rodolfo. They remained mute after
judgment was rendered against them by the trial court. Neither did they le any petition for
certiorari with the Court of Appeals for the nulli cation of the Order of the trial court dated
January 20, 1998 declaring that they had waived their right to cross-examine Rodolfo. It
was only on appeal to this Court that Juan and Victor averred for the rst time that they
were deprived of their right to cross-examine Rodolfo. It is now too late in the day for Juan
and Victor to do so. The doctrine of estoppel states that if one maintains silence when in
conscience he ought to speak, equity will debar him from speaking when in conscience he
ought to remain silent. He who remains silent when he ought to speak cannot be heard to
speak when he should be silent. 3 3
The contention of accused-appellants Juan and Victor that Rodolfo and Romulo
failed to identify them as the perpetrators of the crime charged is disbelieved by the trial
court, thus:
As can be gathered from the testimonies of the witnesses for the
prosecution, on September 28, 1996, the accused boarded at around 3:00 a.m. a
Five Star Bus driven by Rodolfo Cacatian, bound to Pangasinan, in Camachile,
Balintawak, Quezon City. Twenty (20) minutes or so later, when the bus reached
the vicinity of Nabuag, Plaridel, Bulacan, along the North Expressway, the accused
with guns in hand suddenly stood up and announced a hold-up. Simultaneously
with the announcement of a hold-up, Escote red his gun upwards. Acuyan,
meanwhile, took the gun of a man seated at the back. Both then went on to take
the money and valuables of the passengers, including the bus conductor's
collections in the amount of P6,000.00. Thereafter, the duo approached the man
at the back telling him in the vernacular "Pasensiya ka na pare, papatayin ka
namin. Baril mo rin ang papatay sa iyo." They pointed their guns at him and red
several shots oblivious of the plea for mercy of their victim. After the shooting, the
latter collapsed on the oor. The two (2) then went back at the front portion of the
bus behind the driver's seat and were overheard by the bus driver, Cacatian,
talking how easy it was to kill a man. The robbery and the killing were over in 25
minutes. Upon reaching the Mexico overpass of the Expressway in Pampanga,
the two (2) got off the bus. The driver drove the bus to the Mabalacat Police
Station and reported the incident. During the investigation conducted by the
police, it was found out that the slain passenger was a policeman, SPO1 Jose C.
Manio, Jr. of the Caloocan City Police Department.
The above version came from Rodolfo Cacatian and Romulo Digap, bus
driver and conductor, respectively, of the ill-fated Five Star Bus. 3 4
The Court agrees with the trial court. It may be true that Romulo was frightened
when Juan and Victor suddenly announced a holdup and red their guns upward, but it
does not follow that he and Rodolfo failed to have a good look at Juan and Victor during
the entire time the robbery was taking place. The Court has held in a catena of cases that it
is the most natural reaction of victims of violence to strive to see the appearance of the
perpetrators of the crime and to observe the manner in which the crime was committed. 3 5
Rodolfo and Romulo had a good look at both Juan and Victor before, during and after they
staged the robbery and before they alighted from the bus. The evidence on record shows
that when Juan and Victor boarded the bus and while the said vehicle was on its way to its
destination, Romulo stationed himself by the door of the bus located in the mid-section of
the vehicle. The lights inside the bus were on. Juan seated himself in the middle row of the
passengers' seat near the center aisle while Victor stood near the door of the bus about a
meter or so from Romulo. 3 6 Romulo, Juan and Victor were near each other. Moreover,
Juan divested Romulo of his collection of the fares from the passengers. 3 7 Romulo thus
had a face-to-face encounter with Juan. After shooting SPO1 Manio, Jr. at the rear portion
of the bus, Juan and Victor passed by where Romulo was standing and gave their
instructions to him. Considering all the facts and circumstances, there is no iota of doubt
that Romulo saw and recognized Juan and Victor before, during and after the heist. 3 8
Rodolfo looked many times on the rear, side and center view mirrors to observe the center
and rear portions of the bus before and during the robbery. Rodolfo thus saw Juan and
Victor stage the robbery and kill SPO1 Manio, Jr. with impunity:
xxx xxx xxx
Q So, the announcement of hold-up was ahead of the firing of the gun?
A Yes, sir.
Q And before the actual firing of the gun it was even still said bad words
before saying the hold-up?
A After they fired the gun they uttered bad words, sir.
Q Mr. Witness before the announcement of the hold-up you do not have any
idea that you will encounter that nature which took place, is that correct?
A None, sir.
Q Within the two (2) year[s] period that you are plying the route of Manila to
Bolinao that was your first experience of hold-up?
A Yes, sir.
Q And the speed of above 70 kilometers per hour your total attention is focus
in front of the road, correct, Mr. witness?
A Once in a while the driver look at the side mirror and the rear view mirror, sir.
Q Before the announcement there was no reason for you to look at any at the
rear mirror correct, Mr. witness?
Court:
Every now and then they usually look at the side mirror and on the rear, that
was his statement.
Atty. Osorio:
(to the witness)
Q I am asking him if there was no reason for him. . . .
Fiscal:
Before the announcement of hold-up, there was no mention.
Court:
Every now and then.
Atty. Osorio:
(to the witness)

Q When you said every now and then, how often is it, Mr. witness?
A I cannot tell how often but I used to look at the mirror once in a while, sir.
Q How many mirror do you have, Mr. witness?
A Four (4), sir.
Q Where are these located?

A Two (2) on the side mirror, center mirror and rear view mirror, sir.
Q The two side mirror protruding outside the bus?

A Yes, sir, they are in the side of the bus, sir.
Q One of them is located on the left and the other on the right, correct?
A Yes, sir.
Q You only look at the side mirror when you are going to over take, Mr.
witness?
A No, sir.
Q Where is this center mirror located, Mr. witness?
A In the center, sir.
Q What is the purpose of that?

A So that I can see the passengers if they are already settled so that I can
start the engine, sir.
Q What about the remaining mirror?

A Rear view mirror, sir.
Q What is the purpose and where is it located?
A The rear view is located just above my head just to check the passengers,
sir.
Q So that the center mirror and the rear view mirror has the same purpose?
A They are different, sir.
Q How do you differentiate of (sic) one from the other?

A The center mirror is used to check the center aisle while the rear mirror is for
the whole view of the passengers, sir.
Q If you are going to look at any of your side mirrors, you will never see any
passengers, correct, Mr. witness?
A None, sir.
Q If you will look at your center mirror you will only see the aisle and you will
never see any portion of the body of your passengers?
A Yes, sir.
Q Seated passengers?
A It is only focus (sic) on the middle aisle sir.

Q If you look at your rear mirror, you will only see the top portion of the head
of your passengers, correct?
A. Only the portion of their head because they have different hight (sic), sir.
Q You will never see any head of your passengers if they were seated from
the rear mirror portion, correct, Mr. witness?
A Yes, sir.
Q Before the announcement of hold-up, all of your passengers were actually
sleeping?
A Some of my passengers were sleeping, some were not, sir.

Q But you will agree Mr. witness that when you said every now and then you
are using your mirror? It is only a glance, correct?
A Yes, sir.
Q And by mere glancing, Mr. witness you were not able to identify any person
on the basis of any of your mirror, correct?
A If only a glance but when I look at him I can recognize him, sir.
Q You agree a while ago by every now and then it is by glancing, as a driver,
Mr. witness by your side mirror?
A Not all glancing, there are times when you want to recognize a person you
look at him intently, sir.
Q The purposes of your mirror inside your Bus is mainly of the safety of your
passengers on board, Mr. witness?
A Yes, sir.
Q And as a driver, Mr. witness, you do not used (sic) your mirror to identify the
person particularly when you are crossing (sic) at a speed of 70 kilometers
per hour?
A I do that, sir.
Q How long Mr. witness can you focus your eyes on any of these mirror
before getting back your eyes into the main road?
A Seconds only, sir.

Q When you said seconds, for how long the most Mr. witness that you can do
to fix your eyes on any of your mirrors and the return back of (sic) your
eyes into the main road?
A Two seconds, sir.

Q At that time Mr. witness, that you were travelling at about 70 kilometers you
were glancing every now and then on any of your mirrors at about two
seconds, correct?
A Yes, sir.
Q And when you heard the announcement of hold-up your natural reaction is
to look either at the center mirror or rear mirror for two seconds, correct?
A Yes, sir.
Q And you were instructed Mr. witness to even accelerate your speed upon
the announcement of hold-up?
A No sir, they just told me to continue my driving, sir.

Fiscal:
May I request the vernacular "alalay ka lang, steady ka lang."

Atty. Osorio:
(to the witness)
Q Steady at what speed?

A 70 to 80, sir.
Q What is the minimum speed, Mr. witness for Buses along North
Expressway?
A 60 kilometers, sir.
Q Are you sure of that 60 kilometers, minimum? Are you sure of that?
A Yes, sir.
Q That is what you know within the two (2) years that you are driving? Along
the North Expressway?
A Yes, sir.
Q And while you were at the precise moment, Mr. witness, you were being
instructed to continue driving, you were not looking to anybody except
focus yours eyes in front of the road?
Fiscal:

May I request the vernacular. Nakikiramdam ako.
Atty. Osorio:
(to the witness)
Q That's what you are doing?

A During the time they were gathering the money from my passengers, that is
the time when I look at them, sir.
Q For two seconds, correct?

A Yes, sir.
Q Which of the four (4) mirrors that you are looking at within two seconds,
Mr. witness you said you are nakikiramdam?
A The rear view mirror, sir.

Q The Bus that you were driving is not an air con bus?
A Ordinary bus, sir.

Q And at what time your passengers, most of your passengers were already
sleep (sic), Mr. witness?
A Most of my passengers, sir. Some of my passengers were still sleep (sic),

sir.
Q And the lights inside the Bus are off, correct Mr. witness?
A The lights were on, sir.
Q While the passengers were sleep (sic) the light was still on, Mr. witness, at
the time of the trip.?
A Yes, sir.
Q Now, Mr. witness when the hold-up was announced and then when you
look for two seconds in the rear mirror you were not able to see any one,
you were only sensing what is happening inside your bus?
A I saw something, sir.
Q You saw something in front of your Bus? You can only see inside when you
are going to look at the mirror?
A Yes, sir.
Q That is the only thing that you see every now and then, you said you were
looking at the mirror?
A Yes, sir.
Q How many times, Mr. witness did you look Mr. witness at the rear mirror
during the entire occurance (sic) of the alleged hold-up?
A There were many times, sir.
Q The most that you can remember, please inform the Honorable Court?
During the occurance (sic) of the alleged hold-up, Mr. witness?
A I cannot estimate, sir.
Q How long did the alleged hold-up took place?

A More or less 25 minutes, sir. 3 9
When Rodolfo gave his sworn statement to the police investigators in Plaridel,
Bulacan after the robbery, he described the felons. When asked by the police investigators
if he could identify the robbers if he see them again, Rodolfo declared that he would be
able to identify them:
8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na
nanghold-up sa minamaneho mong bus?
S: Halos magkasing taas, 5'4" o 5'5" katam-taman ang
pangangatawan, parehong nakapantalon ng maong nakasuot ng
jacket na maong, parehong naka rubber shoes at pareho ring naka
sumbrero.
9. T: Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa
sila?
S: Makikilala ko po sila. 4 0
When asked to identify the robbers during the trial, Rodolfo spontaneously pointed
to and identified Juan and Victor:
Fiscal:
(to the witness)
xxx xxx xxx

Q Those two man (sic) who stated that it was a hold-up inside the bus and
who fired the gun are they inside the Court room (sic) today?
A Yes, ma'am.
Q Point to us?
Interpreter:
Witness pointing to a man wearing red T-shirt and when asked his name
answered Victor Acuyan and the man wearing green T-shirt and when
asked his name answered Juan Gonzales. 4 1
For his part, Romulo likewise spontaneously pointed to and identi ed Juan and
Victor as the culprits when asked by the prosecutor to identify the robbers from among
those in the courtroom:
xxx xxx xxx
Q You said that you were robbed inside the bus, how does (sic) the robbing
took place?
A They announced a hold up ma'am, afterwards, they confiscated the money

of the passengers including my collections.
Q You said "they" who announced the hold up, whose (sic) these "they" you
are referring to?
A Those two (2), ma'am.
Interpreter:
Witness pointing to the two accused.
Public Pros.:
May we request that the accused be identified, Your Honor.

Court:
(to both accused)

What are your names?
A Juan Escote, Your Honor. Victor Acuyan, Your Honor.
Public Pros.:
May we know from the accused if his name is Juan Escote Gonzales
because he just said Juan Escote. In the Information, it is one Juan
Gonzales, Jr., so, we can change, Your Honor. 4 2
Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in
Tarlac, Tarlac, Juan was in possession of the identi cation card 4 3 of the slain police
o cer. Juan failed to explain to the trial court how and under what circumstances he came
into possession of said identi cation card. Juan must necessarily be considered the
author of the robbery and the killing of SPO1 Manio, Jr. In People v. Mantung , 4 4 we held:
. . . [T]he recovery of part of the loot from Mantung or the time of his arrest
gave rise to a legal presumption of his guilt. As this Court has held, '[I]n the
absence of an explanation of how one has come into possession of stolen
effects belonging to a person wounded and treacherously killed, he must
necessarily be considered the author of the aggression and death of the said
person and of the robbery committed on him.'
While police investigators did not place Juan and Victor in a police line-up for proper
identification by Rodolfo and Romulo, it cannot thereby be concluded that absent such line-
up, their identi cation by Romulo and Rodolfo as the authors of the robbery with homicide
was unreliable. There is no law or police regulation requiring a police line-up for proper
identi cation in every case. Even if there was no police line-up, there could still be proper
and reliable identi cation as long as such identi cation was not suggested or instigated to
the witness by the police. 4 5 In this case, there is no evidence that the police o cers had
supplied or even suggested to Rodolfo and Romulo the identities of Juan and Victor as the
perpetrators of the robbery and the killing of SPO1 Manio, Jr. IcAaSD
The Felony Committed by Juan and Victor

The Court nds that the trial court committed no error in convicting Juan and Victor
of robbery with homicide. Article 294, paragraph 1 of the Revised Penal Code, as amended
by Republic Act 7659, reads:
Art. 294. Robbery with violence against or intimidation of persons. —
Penalties. — Any person guilty of robbery with the use of violence against or
intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed, or
when the robbery shall have been accompanied by rape or intentional mutilation
or arson.
To warrant the conviction of Juan and Victor for the said charge, the prosecution
was burdened to prove the confluence of the following essential elements:
. . . (a) the taking of personal property with the use of violence or
intimidation against a person; (b) the property thus taken belongs to another; (c)
the taking is characterized by intent to gain or animus lucrandi and (d) on the
occasion of the robbery or by reason thereof, the crime of homicide, which is
therein used in a generic sense, was committed. . . . 4 6
The intent to rob must precede the taking of human life. 4 7 In robbery with homicide,
so long as the intention of the felons was to rob, the killing may occur before, during or
after the robbery. In People v. Barut, 4 8 the Court held that:
In the controlling Spanish version of article 294, it is provided that there is
robbery with homicide "cuando con motivo o con ocasión del robo resultare
homicidio". "Basta que entre aquel este exista una relación, meramente ocasional.
No se requiere que el homicidio se cometa como medio de ejecución del robo, ni
que el culpable tenga intención de matar, el delito existe según constanta
jurisprudencia, aun cuando no concurra animo homicida. Incluso si la muerte
sobreviniere por mero accidente, siempre que el homicidio se produzca con
motivo con ocasión del robo, siendo indiferente que la muerte sea anterior,
coetánea o posterior a éste" (2 Cuello Calon, Derecho Penal, 1975 14th Ed. P.
872).
Even if the victim of robbery is other than the victim of the homicide committed on
the occasion of or by reason of the robbery, nevertheless, there is only one single and
indivisible felony of robbery with homicide. All the crimes committed on the occasion or by
reason of the robbery are merged and integrated into a single and indivisible felony of
robbery with homicide. This was the ruling of the Supreme Court of Spain on September 9,
1886, et sequitur cited by this Court in People v. Mangulabnan, et al. 4 9
We see, therefore, that in order to determine the existence of the crime of
robbery with homicide it is enough that a homicide would result by reason or on
the occasion of the robbery (Decision of the Supreme Court of Spain of November
26, 1892, and January 7, 1878, quoted in 2 Hidalgo's Penal Code, p. 267 and 259-
260, respectively). This High Tribunal speaking of the accessory character of the
circumstances leading to the homicide, has also held that it is immaterial that the
death would supervene by mere accident (Decision of September 9, 1886; October
22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be
produced by reason or on occasion of the robbery, inasmuch as it is only the
result obtained, without reference or distinction as to the circumstances, causes,
modes or persons intervening in the commission of the crime, that has to be
taken into consideration (Decision of January 12, 1889 — see Cuello Calon's
Codigo Penal, p. 501-502).
Case law has it that whenever homicide has been committed by reason of or on the
occasion of the robbery, all those who took part as principals in the robbery will also be
held guilty as principals of robbery with homicide although they did not take part in the
homicide, unless it appears that they endeavored to prevent the homicide. 5 0
In this case, the prosecution proved beyond reasonable doubt that Juan and Victor
conspired and confabulated together in robbing the passengers of the Five Star Bus of
their money and valuables and Romulo of his collections of the fares of the passengers
and in killing SPO1 Manio, Jr. with impunity on the occasion of the robbery. Hence, both
Juan and Victor are guilty as principals by direct participation of the felony of robbery with
homicide under paragraph 1, Article 294 of the Revised Penal Code, as amended by R.A.
7659, punishable by reclusion perpetua to death.
The Proper Penalty
The trial court imposed the supreme penalty of death on Juan and Victor for robbery
with homicide, de ned in Article 294, paragraph 1 of the Revised Penal Code, punishable
with reclusion perpetua. Under Article 63, paragraph 1 of the Revised Penal Code, the
felons should be meted the supreme penalty of death when the crime is committed with
an aggravating circumstance attendant in the commission of the crime absent any
mitigating circumstance. The trial court did not specify in the decretal portion of its
decision the aggravating circumstances attendant in the commission of the crime
mandating the imposition of the death penalty. However, it is evident from the ndings of
facts contained in the body of the decision of the trial court that it imposed the death
penalty on Juan and Victor on its nding that they shot SPO1 Manio, Jr. treacherously on
the occasion of or by reason of the robbery:
xxx xxx xxx
The two (2) accused are incomparable in their ruthlessness and base
regard for human life. After stripping the passengers of their money and
valuables, including the rearm of the victim, they came to decide to execute the
latter seemingly because he was a police o cer. They lost no time pouncing him
at the rear section of the bus, aimed their rearms at him and, in a derisive and
humiliating tone, told him, before pulling the trigger, that they were rather sorry but
they are going to kill him with his own gun; and thereafter, they simultaneously
red point blank at the hapless policeman who was practically on his knees
begging for his life. Afterwhich, they calmly positioned themselves at the front
boasting for all to hear, that killing a man is like killing a chicken (" Parang
pumapatay ng manok"). Escote, in particular, is a class by himself in callousness.
. . . . 51
The Court agrees with the trial court that treachery was attendant in the commission
of the crime. There is treachery when the following essential elements are present, viz: (a)
at the time of the attack, the victim was not in a position to defend himself; and (b) the
accused consciously and deliberately adopted the particular means, methods or forms of
attack employed by him. 5 2 The essence of treachery is the sudden and unexpected attack
by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend
himself and thereby ensuring its commission without risk of himself. Treachery may also
be appreciated even if the victim was warned of the danger to his life where he was
defenseless and unable to ee at the time of the in iction of the coup de grace. 5 3 In the
case at bar, the victim suffered six wounds, one on the mouth, another on the right ear, one
on the shoulder, another on the right breast, one on the upper right cornea of the sternum
and one above the right iliac crest. Juan and Victor were armed with handguns. They rst
disarmed SPO1 Manio, Jr. and then shot him even as he pleaded for dear life. When the
victim was shot, he was defenseless. He was shot at close range, thus insuring his death.
The victim was on his way to rejoin his family after a hard day's work. Instead, he was
mercilessly shot to death, leaving his family in grief for his untimely demise. The killing is a
grim example of the utter inhumanity of man to his fellowmen.
The issues that now come to fore are (1) whether or not treachery is a generic
aggravating circumstance in robbery with homicide; and if in the a rmative, (b) whether
treachery may be appreciated against Juan and Victor. On the rst issue, we rule in the
a rmative. This Court has ruled over the years 5 4 that treachery is a generic aggravating
circumstance in the felony of robbery with homicide, a special complex crime (un delito
especial complejo) and at the same time a single and indivisible offense (uno solo
indivisible). 5 5 However, this Court in two cases has held that robbery with homicide is a
crime against property and hence treachery which is appreciated only to crimes against
persons should not be appreciated as a generic aggravating circumstance. 5 6 It held in
another case that treachery is not appreciated in robbery with rape precisely because
robbery with rape is a crime against property. 5 7 These rulings of the Court nd support in
case law that in robbery with homicide or robbery with rape, homicide or rape are merely
incidents of the robbery, with robbery being the main purpose and object of the criminal. 5 8
Indeed, in People vs. Cando, 5 9 two distinguished members of this Court advocated a
review of the doctrine that treachery is a generic aggravating circumstance in robbery with
homicide. They opined that treachery is applicable only to crimes against persons. After
all, in People vs. Bariquit, 6 0 this Court in aper curiam decision promulgated in year 2000
declared that treachery is applicable only to crimes against persons. However, this Court
held in People vs. Cando that treachery is a generic aggravating circumstance in robbery
with homicide, citing its prior rulings that in robbery with homicide, treachery is a generic
aggravating circumstance when the victim of homicide is killed with treachery. This Court
opted not to apply its ruling earlier that year in People vs. Bariquit.
Legal Luminaries in criminal law and eminent commentators of the Revised Penal
Code are not in full accord either. Chief Justice Ramon C. Aquino (Retired) says that
treachery is appreciated only in crimes against persons as de ned in Title 10, Book Two of
the Code. 6 1 Chief Justice Luis B. Reyes (Retired) also is of the opinion that treachery is
applicable only to crimes against persons. 6 2 However, Justice Florenz D. Regalado
(Retired) is of a different view. 6 3 He says that treachery cannot be considered in robbery
but can be appreciated insofar as the killing is concerned, citing the decisions of this Court
in People vs. Balagtas 6 4 for the purpose of determining the penalty to be meted on the
felon when the victim of homicide is killed with treachery.
It must be recalled that by Royal Order of December 17, 1886 the 1850 Penal Code
in force in Spain, as amended by the Codigo Penal Reformado de 1870 was applied in the
Philippines. The Penal Code of 1887 in the Philippines was amended by Act 3815, now
known as the Revised Penal Code, which was enacted and published in Spanish. In
construing the Old Penal Code and the Revised Penal Code, this Court had accorded
respect and persuasive, if not conclusive effect to the decisions of the Supreme Court of
Spain interpreting and construing the 1850 Penal Code of Spain, as amended by Codigo
Penal Reformado de 1870. 6 5
Article 14, paragraph 16 of the Revised Penal Code reads:
ART. 14. Aggravating circumstances. — The following are aggravating
circumstances:
xxx xxx xxx

16. That the act be committed with treachery (alevosia). There is
treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make.
The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860 Penal Code
and the Codigo Penal Reformado de 1870 of Spain which reads:
Art. 10 . . . 2. Ejecutar el hecho con alevosia. Hay alevosia cuando el
culpable comete cualquiera de los delitos contra las personas empleando medios,
modos o for mas en la ejecucion que tiendan directa y especialmente a
asegurarla sin riesgo para su persona, que proceda de la defensa que pudiera
hacer el ofendido. . . .
Article 14, paragraph 16 of the Revised Penal Code is a reproduction of the 1850
Penal Code of Spain and the Codigo Penal Reformado de 1870 with a slight difference. In
the latter law, the words "las personas" (the persons) are used, whereas in Article 14,
paragraph 6, of the Revised Penal Code, the words "the person" are used.
Going by the letter of the law, treachery is applicable only to crimes against persons
as enumerated in Title Eight, Chapters One and Two, Book II of the Revised Penal Code.
However, the Supreme Court of Spain has consistently applied treachery to robbery with
homicide, classi ed as a crime against property. Citing decisions of the Supreme Court of
Spain, Cuello Calon, a noted commentator of the Spanish Penal Code says that despite the
strict and express reference of the penal code to treachery being applicable to persons,
treachery also applies to other crimes such as robbery with homicide: 6 6
Aun cuando el Codigo solo se re ere a los delitos contra las personas,
cabe estimarla en los que no perteneciendo a este titulo se determinan por muerte
o lesiones, como, en el robo con homicidio, y en el homicidio del Jefe del Estado
que es un delito contra la seguridad interior del Estado, y no obstante la referencia
estricta del texto legal a los delitos contra las personas no es la alevosia aplicable
a la mayoria de ellos, no lo es en el homicidio, pues como su concurrencia lo
cuali ca lo transforma en delito distinto, en asesinato, ni en el homicidio
consentido (art. 409), ni en la riña tumultuaria (art. 408) ni en el infanticidio (art.
410). . . . . 6 7
Viada also says that treachery is appreciated in crimes against persons (delitos
contra personas) and also in robbery with homicide (robo con homicidio). 6 8
"Contra las personas. — Luego la circunstancia de alevosia solo puede
apreciarse en los delitos provistos desde el art. 417 al 447, y en algun otro, como
el de robo con homicidio, atentario, a la vez que contra la propriedad, contra la
persona."
Thus, treachery is a generic aggravating circumstance to robbery with homicide
although said crime is classi ed as a crime against property and a single and indivisible
crime. Treachery is not a qualifying circumstance because as ruled by the Supreme Court
of Spain in its decision dated September 11, 1878, the word "homicide" is used in its
broadest and most generic sense. 6 9
Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or
increasing the penalty for a crime, aggravating circumstances shall be taken into account.
However, aggravating circumstances which in themselves constitute a crime specially
punishable by law or which are included by the law in de ning a crime and prescribing a
penalty therefor shall not be taken into account for the purpose of increasing the penalty.
7 0 Under paragraph 2 of the law, the same rule shall apply with respect to any aggravating
circumstances inherent in the crime to such a degree that it must of necessity accompany
the commission thereof.
1. Aggravating circumstances which in themselves constitute a crime
specially punishable by law or which are included by the law in de ning a crime
and prescribing the penalty therefor shall not be taken into account for the
purpose of increasing the penalty.
xxx xxx xxx
2. The same rule shall apply with respect to any aggravating

circumstances inherent in the crime to such a degree that it must be of necessity
accompany the commission thereof.
Treachery is not an element of robbery with homicide. Neither does it constitute a

crime specially punishable by law nor is it included by the law in de ning the crime of
robbery with homicide and prescribing the penalty therefor. Treachery is likewise not
inherent in the crime of robbery with homicide. Hence, treachery should be considered as a
generic aggravating circumstance in robbery with homicide for the imposition of the
proper penalty for the crime.
In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that
treachery is a generic aggravating circumstance not only in crimes against persons but
also in robbery with homicide. The high court of Spain applied Article 79 of the Spanish
Penal Code (Article 62 of the Revised Penal Code) and ruled that since treachery is not a
constitutive element of the crime of robbery with homicide nor is it inherent in said crime,
without which it cannot be committed, treachery is an aggravating circumstance to said
crime. The high court of Spain was not impervious of the fact that robbery with homicide is
classi ed as a crime against property. Indeed, it speci cally declared that the
classi cation of robbery with homicide as a crime against property is irrelevant and
inconsequential in the application of treachery. It further declared that it would be futile to
argue that in crimes against property such as robbery with homicide, treachery would have
no application. This is so, the high tribunal ruled, because when robbery is coupled with
crimes committed against persons, the crime is not only an assault (ataca) on the property
of the victims but also of the victims themselves (ofende):
. . . que la circunstancia agravante de alevosia ni es constitutiva del delito
complejo de robo y homicidio, ni de tal modo inherente que sin ella no pueda
cometerse, sin que quepa arguir que en los delitos contra la propiedad no debe
aquella tener aplicacion, porque cuando estos son complejos de los que se
cometen contra las personas, no solo se ataca a la propiedad, sino que se ofende
a estas. . . . 7 1
In ne, in the application of treachery as a generic aggravating circumstance to

robbery with homicide, the law looks at the constituent crime of homicide which is a crime
against persons and not at the constituent crime of robbery which is a crime against
property. Treachery is applied to the constituent crime of "homicide" and not to the
constituent crime of "robbery" of the special complex crime of robbery with homicide.
The crime of robbery with homicide does not lose its classi cation as a crime
against property or as a special complex and single and indivisible crime simply because
treachery is appreciated as a generic aggravating circumstance. Treachery merely
increases the penalty for the crime conformably with Article 63 of the Revised Penal Code
absent any generic mitigating circumstance.
In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled that when
the victim of robbery is killed with treachery, the said circumstance should be appreciated
as a generic aggravating circumstance in robbery with homicide:
. . . que si aparece probado que el procesado y su co-reo convinieron en
matar a un conocido suyo, compañero de viaje, para lo cual desviaron
cautelosamente los carros que guiaban, en uno de los cuales iba el interfecto,
dirigiendolos por otro camino que conducia a un aljibon, y al llegar a este,
valiendose de engaño para hacer bajar a dicho interfecto, se lanzaron de
improviso sobre el, tirandolo en tierra, robandole el dinero, la manta y los talegos
que llevaba, y atandole al pie una piedra de mucho peso, le arrojaron con ella a
dicho aljibon, dados estos hechos, no cabe duda que constituyen el delito
complejo del art. 516, num. I, con la circunstancia agravante de alevosia, puesto
que los medios, forma y modos empleados en la ejecucion del crimen tendieron
directa y especialmente a asegurarla sin riesgo para sus autores, procedente de la
defensa del ofendido. 7 2
In sum then, treachery is a generic aggravating circumstance in robbery with
homicide when the victim of homicide is killed by treachery.
On the second issue, we also rule in the a rmative. Article 62, paragraph 4 of the
Revised Penal Code which was taken from Article 80 of the Codigo Penal Reformado de
1870, 7 3 provides that circumstances which consist in the material execution of the act, or
in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of
those persons only who had knowledge of them at the time of the execution of the act or
their cooperation therein. The circumstances attending the commission of a crime either
relate to the persons participating in the crime or into its manner of execution or to the
means employed. The latter has a direct bearing upon the criminal liability of all the
accused who have knowledge thereof at the time of the commission of the crime or of
their cooperation thereon. 7 4 Accordingly, the Spanish Supreme Court held in its Sentencia
dated December 17, 1875 that where two or more persons perpetrate the crime of
robbery with homicide, the generic aggravating circumstance of treachery shall be
appreciated against all of the felons who had knowledge of the manner of the killing of
victims of homicide, with the ratiocination that:
. . . si por la Ley basta haberse ejecutado un homicidio simple con motivo
ú ocasión del robo para la imposicion de la pena del art. 516, num. I, no puede
sere ni aun discutible que, concurriendo la agravante de alevosia, se aumente la
criminalidad de los delincuentes; siendo aplicable a todos los autores del hecho
indivisible, porque no es circunstancia que afecte a la personalidad del
delincuente, de las que habla el art. 80 del Codigo penal en su primera parte, sino
que consiste en la ejecusion material del hecho y en los medios empleados para
llevarle a cabo, cuando de ellos tuvieron conocimiento todos los participantes en
el mismo por el concierto previo y con las condiciones establecidad en la
segunda parte del citado articulo. 7 5
Be that as it may, treachery cannot be appreciated against Juan and Victor in the
case at bar because the same was not alleged in the Information as mandated by Section
8, Rule 110 of the Revised Rules on Criminal Procedures which reads:
Sec. 8. Designation of the offense. — The complaint or information
shall state the designation of the offense given by the statute, aver the acts or
omissions constituting the offense and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it.
Although at the time the crime was committed, generic aggravating circumstance
need not be alleged in the Information, however, the general rule had been applied
retroactively because if it is more favorable to the accused. 7 6 Even if treachery is proven
but it is not alleged in the information, treachery cannot aggravate the penalty for the
crime.
There being no modifying circumstances in the commission of the felony of robbery
with homicide, Juan and Victor should each be meted the penalty of reclusion perpetua
conformably with Article 63 of the Revised Penal Code.
Civil Liability of Juan and Victor
The trial court awarded the total amount of P300,000.00 to the heirs of SPO1 Manio,
Jr. The court did not specify whether the said amounts included civil indemnity for the
death of the victim, moral damages and the lost earnings of the victim as a police o cer
of the PNP. The Court shall thus modify the awards granted by the trial court.
Since the penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the
victim are entitled to civil indemnity in the amount of P50,000.00. The heirs are also
entitled to moral damages in the amount of P50,000.00, Rosemarie Manio having testi ed
on the factual basis thereof. 7 7 Considering that treachery aggravated the crime, the heirs
are also entitled to exemplary damages in the amount of P25,000.00. This Court held in
People vs. Catubig 7 8 that the retroactive application of Section 8, Rule 110 of the Revised
Rules of Criminal Procedure should not impair the right of the heirs to exemplary damages
which had already accrued when the crime was committed prior to the effectivity of the
said rule. Juan and Victor are also jointly and severally liable to the said heirs in the total
amount of P30,000.00 as actual damages, the prosecution having adduced evidence
receipts for said amounts. The heirs are not entitled to expenses allegedly incurred by
them during the wake as such expenses are not supported by receipts. 7 9 However, in lieu
thereof, the heirs are entitled to temperate damages in the amount of P20,000.00. 8 0 The
service rearm of the victim was turned over to the Evidence Custodian of the Caloocan
City Police Station per order of the trial court on October 22, 1997. 8 1 The prosecution
failed to adduce documentary evidence to prove the claim of Five Star Bus, Inc. in the
amount of P6,000.00. Hence, the award should be deleted. However, in lieu of actual
damages, the bus company is entitled to temperate damages in the amount of P3,000.00.
82
The heirs are likewise entitled to damages for the lost earnings of the victim. The
evidence on record shows that SPO1 Manio, Jr. was born on August 25, 1958. He was
killed on September 28, 1996 at the age of 38. He had a gross monthly salary as a member
of the Philippine National Police of P8,065.00 or a gross annual salary of P96,780.00.
Hence, the heirs are entitled to the amount of P1,354,920.00 by way of lost earnings of the
victim computed, thus:
Age of the victim = 38 years old
Life expectancy = 2/3 x (80 - age of the victim at the time of death)
= 2/3 x (80-38)
= 2/3 x 42
= 28 years
Gross Annual Income = gross monthly income x 12 months
= P8,065.00 x 12
= P96,780.00
Living Expenses = 50% of Gross Annual Income
= P96,780.00 x 0.5
= P48,390.00
Lost Earning Capacity = Life expectancy x [Gross Annual Income-
Living expenses]
= 28 x [P96,780.00 - P48,390.00]
= 28 x P48,390.00
= P1,354,920.00
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Bulacan is hereby AFFIRMED with MODIFICATIONS. Accused-appellants Juan Gonzales
Escote, Jr. and Victor Acuyan are hereby found guilty beyond reasonable doubt of the
felony of robbery with homicide de ned in Article 294, paragraph 1 of the Revised Penal
Code and, there being no modifying circumstances in the commission of the felony, hereby
metes on each of them the penalty of RECLUSION PERPETUA. Said accused-appellants are
hereby ordered to pay jointly and severally the heirs of the victim SPO1 Jose C. Manio, Jr.
the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages,
P1,349,920.00 for lost earnings, P30,000.00 as actual damages and P25,000.00 as
exemplary damages. The award of P6,000.00 to the Five Star Bus, Inc. is deleted. However,
the said corporation is awarded the amount of P3,000.00 as temperate damages. IDAaCc
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-
Martinez, Corona, Carpio Morales and Azcuna, JJ., concur.
Separate Opinions
VITUG, J.:
Should an attendant aggravating circumstance of treachery, exclusive to crimes

against persons, be appreciated in the special complex crime of robbery with homicide
which Article 294 of the Revised Penal Code categorizes as a crime against property? I
humbly submit that it should not be appreciated.
A brief background. At past midnight on 28 September 1996, a Five Star passenger
bus with plate No. ABS-793, bound for Bolinao from Manila, stopped at the Balintawak
junction to pick up some passengers. Six passengers, among them Victor Acuyan and
Juan Gonzales Escote, boarded the bus. Escote seated himself on the third seat near the
aisle while Acuyan took the mid-portion of the vehicle beside the bus conductor.
Along the highway in Plaridel, Bulacan, passengers Escote and Acuyan suddenly
stood up, took their positions and declared a holdup. Escote red his gun upwards, jolting
to consciousness the sleepy and dozing passengers. The duo promptly divested the
passengers of their valuables. The bus conductor, Romulo Digap, was dispossessed of the
fares he earlier collected from the passengers. When the two repaired to the rear end of
the bus, they came upon SPO1 Jose C. Manio, a passenger on his way to Angeles City. The
felons demanded that Manio show them his identi cation card and wallet. Manio took out
his identi cation card and his service gun. At this point, the duo told the hapless law
officer: "Pasensya ka na pare, papatayin ka namin, baril mo rin ang papatay sa iyo." Ignoring
his pleas for mercy, the robbers mercilessly and repeatedly shot Manio to death. The two
then proceeded to the driver's seat. Rodolfo Cacatian, the driver, overheard one of the
felons boast: "Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok." The other
said: "Ayos na naman tayo pare. Malaki-laki ito." After warning Cacatian not to report the
incident to the authorities, the two alighted at an overpass in Mexico, Pampanga. The bus
driver and the bus conductor reported the incident to the police authorities in Dau,
Mabalacat, Pampanga. The lifeless body of SPO1 Manio, Jr., was brought to a nearby
funeral parlor where Dr. Alejandro D. Tolentino performed an autopsy.
Less than a month later, on 25 October 1996, about midnight, SPO3 Romeo
Meneses, the team leader of Alert Team No. 1 of the Tarlac Police Station, and SPO3
Florante S. Ferrer were at a checkpoint along the Tarlac national highway. The police
o cers were diverting the tra c ow to the Sta. Rosa Road because of the temporary
closure of the Bambang-Concepcion bridge to motorists. Meneses stopped the driver of a
white-colored taxicab without any plate number. The driver turned out to be Juan Gonzales
Escote, Jr. Escote introduced himself to be a police o cer. When asked to present his
identi cation card, Escote at once produced the card issued to and in the name of SPO1
Manio. Meneses became suspicious after noticing that the card had already expired. When
asked to produce a new pay slip, Escote was not able to show any. Amidst intensive
probing, Escote nally confessed that he was not a policeman. Meneses forthwith brought
Escote to the police station where ve live bullets of a 9-millimeter rearm were
con scated from him. Escote owned responsibility for the highway robbery committed
aboard the Five Star passenger bus and for the death of SPO1 Manio, Jr. Escote was
turned over to the custody of the Plaridel Police Station where the bus conductor, Romulo
Digap, later identi ed Escote as having been one of the two robbers. A further
investigation on the case led to the arrest of Victor Acuyan in Laoang, Northern Samar.
On 04 April 1997, an Information for robbery with homicide was led before the
Regional Trial Court of Bulacan against Juan Gonzales Escote and Victor O. Acuyan. When
arraigned, Escote and Acuyan entered a plea of not guilty. The trial ensued. After the
prosecution had rested its case, Escote escaped from the provincial jail. Only Acuyan was
able to adduce evidence in his defense. Acuyan denied the charge and interposed the
defense of alibi. At the time of the robbery, he claimed, he was in Laoang, Samar, for the
town fiesta and had a drinking spree with friends, after which they attended a public dance
that lasted until dawn of the next day. He denied having met Juan Escote before. On 14
January 1999, Juan Escote was re-arrested in Daet, Camarines Norte, but he chose not to
adduce any evidence in his behalf.
The trial court found Juan Escote and Victor Acuyan guilty beyond reasonable doubt
of the crime of robbery with homicide and meted upon each of them the penalty of death.
In imposing the penalty of death upon appellants, the trial court considered treachery as an
aggravating circumstance as to justify its imposition of the maximum penalty of death.
The ponencia, while nding that treachery could not be appreciated for not having been
aptly alleged in the information, expressed in an obiter, however, that had it been otherwise,
i.e., that had treachery been properly alleged, this circumstance could have aggravated the
crime.
It is on the last pronouncement that I beg to differ.
Unlike ordinary complex crimes, robbery with homicide, de ned by Article 294 of the
Revised Penal Code, is a special complex crime against property, explicitly carrying a
corresponding penalty of reclusion perpetua to death.
In an ordinary complex crime, Article 48 of the Revised Penal Code expresses that
"the penalty for the most serious crime shall be imposed, the same to be applied in its
maximum period." Article 48 means then that in the imposition of the penalty for such an
ordinary complex crime, i.e., where no speci c penalty is prescribed for the complex crime
itself, the composite offenses and their respective penalties are individually factored, and
it is possible, indeed warranted, that any aggravating circumstance, generic or quali ed,
even if it be peculiar to only one of the constituent crimes, can and should be logically
considered in order to determine which of the composite crimes is the "most serious
crime," the penalty for which shall then "be applied in its maximum period." The rule
evidently is not in square with a special complex crime, like robbery with homicide, where
the law effectively treats the offense as an individual felony in itself and then prescribes a
specific penalty therefor. Article 294 is explicit, and it provides —
"Art. 294. Any person guilty of robbery with the use of violence against
or intimidation of any person shall suffer:
"(1) The penalty of reclusion perpetua to death, when by reason or on

the occasion of the robbery, the crime of homicide shall have been committed, or
when the robbery shall have been accompanied by rape or intentional mutilation
or arson."
There being just an independent prescribed penalty for the offense, any
circumstance that can aggravate that penalty should be germane and generic not to one
but to both of the constituent offenses that comprise the elements of the crime. 1 The
suggestion that treachery could be appreciated "only insofar" as the killing is concerned
would unavoidably be to consider and hold robbery and homicide as being separately
penalized and to thus discount its classi cation under Article 294 of the Code as a distinct
crime itself with a distinct penalty prescribed therefor. Most importantly, such
interpretation would be to treat the special complex crime of robbery with homicide no
differently from ordinary complex crimes de ned under Article 48, where the composite
crimes are separately regarded and weighed in the ultimate imposition of the penalty. If
such were intended, the law could have easily so provided, with the penalty for the higher
of the two offenses to be then accordingly imposed on the malefactor. In prescribing,
however, the penalty of reclusion perpetua to death, where homicide results by reason or
on occasion of the robbery, the law has virtually taken into account the particularly
"nefarious" nature of the crime, where human life is taken, howsoever committed, to pursue
the criminal intent to gain with the use of violence against or intimidation of any person.
Distinct penalties prescribed by law in special complex crimes is in recognition of
the primacy given to criminal intent over the overt acts that are done to achieve that intent.
This conclusion is made implicit in various provisions of the Revised Penal Code. Thus,
practically all of the justifying circumstances, as well as the exempting circumstances of
accident (paragraph 4, Article 12) and lawful or insuperable cause (paragraph 7, Article
12), are based on the lack of criminal intent. 2 In felonies committed by means of dolo, as
opposed to those committed by means of culpa (including offenses punished under
special laws), criminal intent is primordial and overt acts are considered basically as being
mere manifestations of criminal intent. Paragraph 2, Article 4, of the Revised Penal Code
places emphasis on "intent" over effect, as it assigns criminal liability to one who has
committed an "impossible crime," said person having intended and pursued such intent to
commit a felony although, technically, no crime has actually been committed. Article 134
of the same Code, penalizing the crime of rebellion, imposes a distinct penalty, the rebel
being moved by a single intent which is to overthrow the existing government, and ignores
individual acts committed in the furtherance of such intent.
If a circumstance, peculiar to only one of the composite crimes, could at all be
allowed to aggravate the penalty in robbery with homicide, it should be with respect to the
main offense of robbery, the intent to gain being the moving force that impels the
malefactor to commit the crime. The attendant offense of homicide cannot be further
modi ed, "homicide" this time being so understood, as it should be, in its generic sense,
comprehending even murder or parricide, when committed "by reason or on the occasion
of the robbery." The generic character of "homicide" in this special complex crime, has
been exempli ed, for instance, in People vs. Mangulabnan, 3 where the Court has held that,
"[i]n order to determine the existence of the crime of robbery with homicide, it is enough
that a homicide would result by reason or on the occasion of the robbery and it is
immaterial that the death would supervene by mere accident provided that the homicide
be produced by reason or on occasion of the robbery inasmuch as it is only the result
obtained, without reference or distinction as to the circumstances, causes, modes or
persons intervening in the commission of the crime, that has to be taken into
consideration." 4
If the term "homicide" were not to be understood in its generic sense, an aggravating
circumstance, such as evident premeditation or treachery, would qualify the killing into
murder. Two separate crimes of robbery and homicide inevitably would result that
effectively would place the two felonies outside the coverage of Article 294. And, as to
whether or not those crimes should be complexed with each other would depend on the
attendance of the requisites enumerated in Article 48 for ordinary complex crimes, i.e., a)
that a single act constitute two or more grave or less grave felonies or, b) that an offense
is a necessary means for committing the other.
It is on the foregoing predicate, I am convinced, that this Court in People vs. Timple 5
has rejected the idea of appreciating treachery as being an aggravating circumstance in
the crime of robbery with homicide, an offense, I might repeat, is by law classi ed as a
crime against property. I certainly will not view the ruling as having been made in any
cavalier fashion and with little or no effort for an introspective ratiocination. Timple has, in
fact, been stressed in People vs. Arizobal, 6 viz: HAEDIS
"But treachery was incorrectly considered by the trial court. The accused
stand charged with, tried and convicted of robbery with homicide. This special
complex crime is primarily classi ed in this jurisdiction as a crime against
property, and not against persons, homicide being merely an incident of robbery
with the latter being the main purpose and object of the criminals. As such,
treachery cannot be validly appreciated as an aggravating circumstance under
Art. 14 of The Revised Penal Code. (People v. Bariquit, G.R. No. 122733, 2 October
2000, 341 SCRA 600.) This is completely a reversal of the previous jurisprudence
on the matter decided in a litany of cases before People v. Bariquit." 7
Ynares-Santiago and Sandoval-Gutierrez, JJ., concur.
Footnotes
1. Penned by Judge Basilio R. Gabo, Jr.
2. Exhibit "A".
3. Exhibit "H".
4. Exhibit "E".
5. Exhibits "A" and "G".
6. Exhibits "C to C-4".
7. Exhibit "B-1".
8. Exhibit "H".
9. Exhibit "I".
10. Exhibit "F".

11. Original Records of Crim. Case No. 443-M-97, p. 2.
12. Ibid., p. 161.
13. Id., p. 163.
14. Id., p. 179.
15. Id., p. 175.
16. Rollo, p. 70.
17. Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, 62 SCRA 258 (1975).
18. Fulgado, et al. vs. Court of Appeals, et al., 182 SCRA 81 (1990).
19. People vs. Suplito, 314 SCRA 493 (1999).
20. See note 16, supra.
21. People vs. Digno, Jr. 250 SCRA 237 (1995).
22 See note 17, supra.
23 Original Records, p. 70.

24 Ibid., p. 86.
25. Id., p. 89.
26. Id., p. 92.
27. See note 18, supra.
28. Original Records, p. 96.
29. Ibid., p. 107.
30. Id., p. 113.
31. Id., p. 157.
32. Id., p. 172.
33. 31 CORPUS JURIS SECUNDUM, § 87, p. 494.
34. Original Records, pp. 192-193.
35. People vs. Ofido, 342 SCRA 155 (2000).

36. TSN, Cacatian, November 18, 1997, pp. 6-7.
37. TSN, Digap, March 31, 1998, p. 22.
38. Ditche vs. Court of Appeals, et al., 327 SCRA 301 (2000).
39. TSN, Cacatian, November 18, 1997, pp. 19-29.
40. Exhibit "A".
41. Ibid., pp. 8-9.

42. TSN, March 31, 1998, pp. 19-20.
43. Exhibit "H".
44. 310 SCRA 819 (1999).

45. People v. Lubong, 332 SCRA 672 (2000).
46. People vs. Nang, 289 SCRA 16 (1998).
47. People vs. Ponciano, 204 SCRA 627 (1991).
48. 89 SCRA 14 (1979).
49. 99 PHIL. 992 (1956).
50. People vs. Cando, 344 SCRA 330 (2000).
51. Original Records, pp. 194-195.
52. People vs. Reyes, 287 SCRA 229 (1998).
53. People vs. Bustos, 171 SCRA 243 (1989).
54. E.g. People vs. Semañada, 103 Phil. 790 (1958); People vs. Bautista, et al., 107 Phil
1091 (1960); People vs. Tiongson, et al., 6 SCRA 431 (1962); People vs. Pedro, et al., 16
SCRA 57 (1966); People vs. Sigayan, et al., 16 SCRA 839 (1966); People vs. Pujinio, et al.,
27 SCRA 1185 (1969); People vs. Saquing, et al., 30 SCRA 834 (1969); People vs.
Cornelio, et al., 39 SCRA 435 (1971); People vs. Repato, 91 SCRA 488 (1979); People vs.
Pajanustan, 97 SCRA 699 (1980); People vs. Arcamo, et al., 105 SCRA 707 (1981);
People vs. Tintero, 111 SCRA 714 (1982); People vs. Gapasin, et al., 145 SCRA 178
(1986); People vs. Badilla, 185 SCRA 554 (1990); People vs. Manansala, 211 SCRA 66
(1992); People vs. Bechayda, 212 SCRA 336 (1992); People vs. Vivas, 232 SCRA 238
(1994); People vs. Pacapac, et al., 248 SCRA 77 (1995); People vs. Mores, et al., 311
SCRA 342 (1999); People vs. Reyes, et al., 309 SCRA 622 (1999); and People vs. Abdul, et
al., 310 SCRA 246 (1999).
55. Sentencia de 17 de Diciembre de 1875 of the Supreme Court of Spain. In several cases,
this Court held that robbery with homicide is a special complex crime, e.g., People vs.
Jarandilla, 339 SCRA 381(2000); People vs. Quibido, 338 SCRA 607 (2000); People vs.
Aquino, 329 SCRA 247 (2000); People vs. Zuela, et al., 323 SCRA 589 (2000); People vs.
Taño, 331 SCRA 449 (2000). In some cases, this Court has held that robbery with
homicide is a single and indivisible crime, e.g., People vs. Labita, 99 Phil. 1068
(unreported [1956]); People vs. Alfeche, Jr., 211 SCRA 770 (1992).
56. People vs. Timple, 237 SCRA 52 (1994); People vs. San Pedro, 95 SCRA 306 (1980).
57. People vs. Loseo, G.R. No. 5508-09, April 29, 1954 (unpublished). Under Republic Act
8383, rape is a crime against persons.
58. People vs. Navales, 266 SCRA 569 (1997).
59. 344 SCRA 330 (2000).
60. 341 SCRA 600 (2000).
61. AQUINO, THE REVISED PENAL CODE, 1987 ed., Vol. I, p. 386.
62. REYES, THE REVISED PENAL CODE, 1993 ed., Vol. I, p. 412.
63. REGALADO, CRIMINAL LAW CONSPECTUS, 1st ed., p. 95.

64. 68 Phil. 675 (1939)..
65. People vs. Mangulaban, 99 Phil. 992 (1956); People vs. Mesias, 65 Phil. 267 (1939);
Marasigan vs. Robles, 55 O.G. 8297; United States vs. Samonte, L-3422, August 3, 1907;
United States vs. Ipil, et al., 27 Phil. 530 (1914), concurring opinion: United States vs.
Landasan, 35 Phil. 359 (1916).
66. CUELLO CALON, DERECHO PENAL, 1960 ed., Vol. I, p. 592.
67. Decisions dated January 19, 1905, April 18, 1908, June 28, 1922 and December 18,
1947.
68. SALVADOR VIADA CODIGO PENAL REFORMADO DE 1870, Concordado y Comentado
5th ed. 1926, Tomo II, p. 252. Articles 417 to 447 refer to crimes against persons under
the Codigo Penal Reformado de 1870. In Article 516, Title XIII, Chapter 1 of the Codigo
Penal Reformado de 1870, robbery with homicide is a crime against property.
69. Cited in United States vs. Landasan, 35 Phil. 359 (1916).
70. Article 62, paragraphs 1 and 2 were taken from Article 79 of the Penal Code of Spain,
viz:
No producen el efecto de aumentar la pena las circunstancias agravantes que por si
mismas constituyeren un delito especialmente penado por la Ley, o que esta haya
expresado al describirlo y penarlo.
Tampoco lo producen aquellas circunstancias agravantes de tal manera inherentes al
delito, que sin la concurrencia de ellas no pudiera cometerse. . . . .
71. Vide, Note 63, p. 254.
72. Ibid., p. 255.
73. Las circunstancias agravantes o atenuantes que consistieren en la disposicion moral
del delincuente, en sus relaciones particulares con el ofendido, o en otra causa personal,
serviran para agravar o atenuar la responsabilidad solo de aquello autores, complices o
encubridores en quienes concurrieren.
Las que consistieren en la ejecucion material del hecho o en los medios empleados
para realizarlo serviran para agravar o atenuar la responsabilidad unicamente de los que
tuvieren conocimiento de ellas en el momento de la accion o de su cooperacion para el
delito. . . .
74. United States vs. Ancheta, 15 Phil. 43 (1910).
75. Ibid.
76. People vs. Onabia, 306 SCRA 23 (1999).
77. People vs. Taño, 331 SCRA 449 (2000).
78. 363 SCRA 621 (2000).
79. People vs. Cordero, 263 SCRA 122 (1996).
80. Article 2234, New Civil Code.
81. Original Record, p. 82.
82. See note 79.
VITUG, J.:
1. Parenthetically, almost all of the aggravating circumstances enumerated in Article 14 of
the Revised Penal Code are generic, with few exceptions as so exemplified by Mr. Justice
Florenz B. Regalado in his book, "Criminal Law Conspectus," (First Edition, 2000, p. 73)
like cruelty and treachery being exclusive to crimes against persons, person in authority
in physical injuries, unlicensed firearms in robbery in band, and abuse of authority or
confidential relations by guardians or curators in seduction, rape, acts of lasciviousness,
white slavery and corruption of minors. The mitigating circumstances enumerated in
Article 13 of the Revised Penal Code, however, are generic to both crimes against
property and persons and their applicability to even the special complex crime of robbery
with homicide would be without question.
2. Regalado, Ibid., p. 14.

3. 99 Phil. 992.
4. At p. 993; see also People vs. Ombao, (103 SCRA 233) where an accused was held liable
for the crime of robbery with homicide even though it could not be ascertained whether
the shots which killed the victim were fired by the malefactors or by the pursuing
constabulary troopers.
5. 237 SCRA 52.
6. 348 SCRA 143.

7. At p. 153.

FIRST DIVISION
[G.R. Nos. 122976-77. November 16, 1998.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . REGANDO

VILLONEZ y PASCASIO, RUEL SANTOS y LAPADA, JOHN DOE, PETER
DOE, ELMER DOE, and ROY DOE , accused, vs . EDUARDO N. SANTOS
@ "EDDIE," REYNALDO N. SANTOS @ "REY," FERNANDO N. SANTOS
@ "DEDE," EMERLITO N. SANTOS @ "ELMER," and RUDY N. SANTOS
@ "BUDDA," accused, REGANDO VILLONEZ y PASCASIO, EMERLITO
N. SANTOS, and RUEL SANTOS , accused-appellants.
Public Attorney's Office for accused-appellants.

Gerardo L. Dean and Wilfredo I. Imperial for R. L. Santos.
SYNOPSIS
Prosecution witness Edgar Jimenez testi ed that the victim Gerardo Longasa was
hit by appellant Emerlito Santos with a piece of wood and simultaneously, Regando
Villonez and Ruel Santos struck Longasa with bottles. Rudy Santos and Eddie Santos then
stabbed Longasa several times even as two persons named Rey and Budda held
Longasa's arms. Longasa then fell to the ground. cdasia
The trial court, nding conspiracy among all the accused and rejecting their defense
of denial and alibi, convicted them of murder, quali ed by taking advantage of superior
strength.
It is well-settled that a trial court's assessment of a witness's testimony is entitled
to great respect on appeal. Our perusal of the transcript of the testimony of prosecution
witness, Jimenez con rms his trustworthiness. Thus, in the face of the positive
identi cation of the accused, the defense of alibi must fail. Further, the nding of
conspiracy among the accused is supported by evidence. However, we hold that treachery
quali ed the killing because the victim had engaged in a ght previous to the killing and
was thus forewarned of an attack against him. The abuse of superior strength is absorbed
in treachery.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; FINDINGS OF TRIAL

JUDGE, RESPECTED. — The judge had the distinct advantage of having personally heard
the testimonies of the witnesses and observed their deportment and manner of testifying
during the trial. It is settled that the trial judge's ndings on the credibility of witnesses will
not generally be disturbed unless said ndings are arbitrary, or facts and circumstances of
weight and in uence have been overlooked, misunderstood, or misapplied by the trial
judge which, if considered, would have affected the result of the case. None of the
exceptions have been shown to exist in the instant case. acHITE
2. ID.; ID.; ID.; ID.; UPHELD IN CASE AT BAR. — Our perusal of the transcript of the
testimony of witness Edgar Jimenez con rms his trustworthiness. He told a consistent
story throughout his two turns at the witness stand. He corrected misimpressions by the
trial judge and examining counsel, and he satisfactorily explained the apparent lapses in his
testimony. He was frank about his dark history as a drug user who was once the subject of
a criminal case in court. It must be noted that a criminal record does not necessarily make
one an incredible witness. Edgar's honesty in revealing his past without hesitation bolster
his credibility.
3. ID.; ID.; ID.; ID.; NOT AFFECTED BY INCONSISTENCIES BETWEEN HIS TESTIMONY
AND SWORN STATEMENT; IN WHICH CASE, THE FORMER PREVAILS. — The
inconsistencies between Edgar's testimony and sworn statement given to the police were
likewise adequately explained. In any case, a sworn statement or a davit, being taken ex-
parte by a person other than the witness, is almost always incomplete and often
inaccurate, sometimes from partial suggestion or for want of suggestions and inquiries.
Omissions and misunderstandings by the writer are not infrequent, particularly under
circumstances of hurry and impatience. The in rmity of a davits as a species of evidence
is a matter of judicial experience. As such, an a davit taken ex-parte is generally
considered to be inferior to testimonies made in open court.
4. ID.; ID.; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF ACCUSED.
— In the face of the positive identi cation of the accused by Edgar, the defense of alibi is
worth nothing. Besides, accused-appellants were unable to prove that it was physically
impossible for them to be at the crime scene at the time the crime was committed. The
alibi which is su cient to acquit an accused of a criminal charge must be that which
shows it was physically impossible for him to be at the crime scene at the time of the
commission of the crime.
5. CRIMINAL LAW; CONSPIRACY; WHEN PRESENT; CASE AT BAR. — For conspiracy
to exist, it is not required that there be an agreement for an appreciable period prior to the
occurrence. It is su cient that at the time of the commission of the offense, the accused
had the same purpose and were united in its execution. The agreement to commit a crime
may be gleaned from the mode and manner of the commission of the offense or inferred
from the acts of the accused which point to a joint purpose or design, concerted action,
and community of intent. In this case, the accused simultaneously attacked LONGASA,
with two of them holding the victim's hands or arms. Some struck LONGASA with a piece
of wood or bottles and two others stabbed him. The attack continued until LONGASA fell
dead. These acts clearly point to a joint purpose to accomplish the desired end.
6. ID.; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; PRESENT EVEN IF
VICTIM WAS FOREWARNED THAT WHAT IS DECISIVE IS THE IMPOSSIBILITY TO DEFEND
ONESELF. — Treachery may still be appreciated even when the victim was forewarned of
danger to his person. What is decisive is that the execution of the attack made it
impossible for the victim to defend himself or to retaliate. The overwhelming number of
the accused, their use of weapons against the unarmed victim, and the fact that the
victim's hands were held behind him preclude the possibility of any defense by the victim.
The other qualifying circumstance of abuse of superior strength, which the trial court
appreciated, will no longer be taken against accused-appellants, for it is absorbed in
treachery.
7. ID.; ID.; PENALTY ABSENT ANY MITIGATING OR AGGRAVATING
CIRCUMSTANCES IS RECLUSION PERPETUA. — The penalty for the murder is reclusion
perpetua to death pursuant to Article 248 of the Revised Penal Code as amended by R.A.
No. 7659. There being no mitigating or aggravating circumstance proved in favor of or
against EMERLITO and REGANDO, the trial court correctly imposed the penalty of
reclusion perpetua. TaHIDS
8. ID.; ID.; PENALTY WHERE OFFENDER IS A MINOR. — As to accused RUEL, who

was only 16 years old when the offense in question was committed, the trial court
correctly appreciated in his favor the privileged mitigating circumstance of minority.
Pursuant to paragraph 2 of Article 68 of the Revised Penal Code, the penalty next lower to
that prescribed by law shall be imposed; in this case the penalty shall be reclusion
temporal. Again, there being no proof of any modifying circumstance, said penalty shall be
imposed in its medium period. Since RUEL is entitled to the bene ts of the Indeterminate
Sentence Law, he shall be sentenced to suffer an indeterminate penalty whose minimum
shall be within the range of prision mayor and whose maximum shall be within the range of
reclusion temporal. The penalty imposed upon him by the trial court, i.e., ten years of
prision mayor as minimum to seventeen years of reclusion temporal as maximum, is
therefore correct. aSHAIC
DECISION
DAVIDE , JR. , J : p
Accused-appellants REGANDO VILLONEZ, 1 RUEL SANTOS, 2 and EMERLITO

SANTOS pray for a reversal of their conviction for MURDER decreed in a Joint Decision 3
rendered on 23 November 1995 by the Regional Trial Court (RTC) of Malabon, Metro
Manila, Branch 170, in Criminal Cases Nos. 14943-MN and 15506-MN. cda
The information 4 in Criminal Case No. 14943-MN charged REGANDO and RUEL with
the crime of murder allegedly committed in the following manner:
That on or about the 3rd day of May 1994 in Malabon Metro Manila, and
within the jurisdiction of this Honorable Court, the abovenamed accused
[Regando Villonez y Pascasio, Ruel Santos y Lapada, John Doe, Peter Doe, Elmer
Doe and Roy Doe], conspiring together and mutually helping one another, without
any justi able cause, with deliberate intent to kill, with treachery, taking
advantage of superior strength, and being armed with bladed weapons, did then
and there wilfully, unlawfully and feloniously attack, assault and stab one
GERARDO LONGASA on the different parts of the body, thereby in icting upon the
latter serious physical injuries, which caused his death.
CONTRARY TO LAW.
The case was assigned to Branch 170 of the RTC of Malabon, Metro Manila.
Upon arraignment, REGANDO and RUEL entered a plea of not guilty. 5
Meanwhile, accused-appellant EMERLITO, together with Eduardo, Reynaldo,
Fernando, and Rudy, all surnamed Santos, was likewise charged with murder in an
information, 6 which was later docketed as Criminal Case No. 15506-MN. The crime was
allegedly committed as follows:
That on or about the 3rd day of May, 1994, in the Municipality of Malabon,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused [Eduardo N. Santos @ Eddie, Reynaldo N. Santos @ Rey,
Fernando N. Santos @ Dede, Emerlito N. Santos @ Elmer, and Rudy N. Santos @
Budda], conspiring, confederating with Regando P. Villonez and Ruel Santos who
were already charged for the same crime under Criminal Case No. 14943 and
without any justi able cause, with deliberate intent to kill, with treachery taking
advantage of superior strength and being armed with a [sic] bladed weapons, did
then and there willfully, unlawfully and feloniously attack, assault and stab one
GERARDO LONGASA on the different parts of the body, thereby in icting upon the
latter serious physical injuries, which caused his death.
CONTRARY TO LAW.
Only EMERLITO was arrested; his co-accused have remained at large.

Evidently, the killing involved in Criminal Case No. 14943-MN was the same as that in
Criminal Case No. 15506-MN. Hence, the second case was transferred from Branch 72 to
Branch 170 of the RTC of Malabon, Metro Manila, and was consolidated and jointly tried
with the first case pursuant to the Order 7 of 22 March 1995.
At his arraignment, EMERLITO entered a plea of not guilty. 8
The witnesses for the prosecution were Edgar Jimenez and Dr. Ronaldo Mendez, a
Medico-Legal O cer of the National Bureau of Investigation; and the witnesses for the
defense were the accused-appellants, as well as Arthur Aquino and Conrado Gungon.
Edgar Jimenez testi ed that on 3 May 1994, at around 9:00 p.m., while he was
resting inside his store at Hulo, Malabon, Metro Manila, a certain Tonton informed him that
his close friend GERARDO LONGASA had a st ght with one "Rudy," alias "Dede," 9 at
Liwayway Street, Baritan, Malabon. Edgar proceeded to the area to mediate, since
LONGASA and Rudy were both his friends. Edgar passed through Javier II Street in going
to Liwayway Street. At Javier II Street, a group of seven armed men, including accused-
appellants, attacked Edgar. RUEL hit Edgar on his forehead and back with a bottle. Edgar
was able to escape from his attackers. While eeing, he ran past LONGASA, who seemed
drunk. When Edgar called LONGASA, the attackers were already upon LONGASA. 1 0
While he was about eight arms' length away from LONGASA, Edgar saw EMERLITO
hit LONGASA with a 2 x 2 inches piece of wood. Simultaneously, REGANDO and RUEL
struck LONGASA with bottles. Rudy Santos and Eddie Santos then stabbed LONGASA
seven and eight times, respectively, even as two other persons named Rey and Budda held
LONGASA's arms. LONGASA fell to the ground. Edgar saw all these because the scene of
the incident was illuminated by a big uorescent lamp located about three arms' length
away. Edgar rushed to LONGASA's house and reported the incident to the latter's parents.
11
Dr. Ronaldo Mendez conducted an autopsy on LONGASA's corpse. His ndings are
as follows:
Abrasions: 1.0 x 0.6 cms., forehead, left side; 6.0 x 4.0 cms., zygomatic
area, left; 3.6 x 1.1 cms., nasal area, right side; 4.0 x 2.0 cms., maxillary area, left;
2.0 x 0.6 cms., infranasal area, left side; 0.5 x 0.4 cms., mandibular area. left side;
6.6 x 4.2 cms., left upper quadrant, abdomen, 5.0 x 3.0 cms., anterior aspect,
upper third, arm, left; 2.5 x 1.3 cms., left lumbar area; 5.0 x 2.5 cms., elbow, left.
Contusions, purplish: 7.4 x 6.2 cms., anterior chest wall, left side; 4.4 x 2.3
cms., anterior aspects, upper third, arm, right.
Lacerated wounds: 1.1 cms., supraorbital ridge, right; 1.2 cms., posterior
aspect, upper third, forearm, left.
Stab wounds:
1) 3 in number, sizes ranging from 0.5 to 1.6 cms., elliptical clean-cut
edges, with one extremity sharp and the other blunt, located at the
anterior chest wall, left side, over an area of 15.0 cms., x 7.0 cms.,
the farthest is located 10.0 cms., from the anterior median line,
while the nearest is located 3.0 cms., from the anterior median line,
directed backwards, upwards, downwards and medially, involving
the soft tissues, perforating the right ventricle and penetrating the
lower lobe of the left lung with an average depth of approximately
7.5. cms.
2) 1.4 cms., elliptical, clean cut edges, with sharp medial extremity and
blunt lateral extremity, located at the posterior chest wall, left side,
7.0 cms., from the posterior median line, directed forwards, upwards
and laterally, involving the soft tissues only with an approximate
depth of 3.0 cms.
3) 1.5 cms., elliptical, clean-cut with sharp medial extremity and blunt
lateral extremity, located at the posterior chest wall, left side, 9.0
cms., from the posterior median line, directed forwards, upwards
and medially, involving the soft tissues, from the 6th intercostal
space, into the left thoracic cavity penetrating the upper lobe of the
left lung with an approximate depth 5.0 cms.
4) 1.6 cms., elliptical, clean cut edges, with sharp lateral extremity and
blunt medial extremity, located at the anterior chest wall, right side,
3.0 cms., from the posterior median line, directed forwards, upwards
and medially, involving the soft tissue only with an approximate
depth of 2.0 cms.
Hemopericardum, 230 cc.
Hemothorax, left, 1095 cc.
Other visceral organs, pale.
Stomach is almost empty.
CAUSE OF DEATH:
STAR WOUNDS. 1 2
Dr. Mendez explained that the abrasions were caused by hard, rough surface, possibly
cement or a piece of wood. The contusions and lacerations were caused by a blunt
object, which could have been a piece of wood, a bottle, a pipe, or any other hard object.
The incise wounds or stab wounds were caused by a sharp-bladed or sharp-edged
instrument. Of the six stab wounds suffered by LONGASA, stab wounds numbered 1
and 3 on LONGASA's chest caused the latter's death. 1 3
The testimony of LONGASA's mother was dispensed with after the State and the
defense agreed that Longasa's family incurred P8,500 in funeral expenses. 1 4
REGANDO interposed alibi and denial. He claimed that on 3 May 1994, between 7:30
and 8:00 p.m., he was having a conversation with Arthur Aquino at the premises of RUEL's
house. Someone passed by the house and reported a slaying incident at Javier II Street.
Curious, REGANDO and Aquino went to the scene of the incident and there found
LONGASA lying in a pool of his own blood. REGANDO recognized LONGASA because the
latter was a barber at REGANDO's neighborhood. He believed that the victim already dead,
since the latter did not seem to be breathing. When policemen arrived, REGANDO moved
away from the scene; he did not want to be asked about the incident, as he knew nothing
about it. On 7 May 1994, he was arrested by Malabon policemen after Edgar Jimenez
identi ed him as one of the assailants. He opined that Edgar implicated him in the crime
because they had an altercation during a basketball game, which altercation could have
erupted into a fistfight had they not been pacified. 1 5
Arthur Aquino, REGANDO's "gangmate," corroborated the latter's testimony and
declared that it was impossible for REGANDO to have taken part in the killing, since he was
with REGANDO before and after the incident. When they arrived at Javier II, they saw many
people, none of whom were known to him. He asked the people milling around LONGASA's
body who the killer was, but no one could tell him. 1 6
RUEL, who was 16 years old at the time the crime in question was committed, also
put up the defense of alibi. According to him, when the incident was taking place he was at
his grandmother's house in Javier II changing clothes, for he had just taken a bath. He
heard screams from outside of the house reporting that a killing had occurred at the
corner of Javier II Street. Out of curiosity, he immediately went to the reported scene of the
incident. There he saw a bloodied body lying on the ground, which he later found to be
LONGASA's cadaver. RUEL was not questioned by the authorities during the investigation.
However, on 7 May 1994, while he and co-accused REGANDO were watching television at
his grandmother's house, they were arrested by the police on the basis of Edgar's
information that they were among LONGASA's assailants. 1 7
EMERLITO also relied on alibi for his defense. He declared that at the time of the
incident he was at Javier II to borrow P500 from his mother. On his way to his mother's
place, someone informed him that his brother Fernando Santos, alias Dede, was involved in
a ght at Liwayway Street. He rushed to the scene of the reported ght. There, he found his
brother being ganged up on by Edgar Jimenez and another person. EMERLITO grabbed
Edgar and boxed him, but the latter retaliated. They exchanged punches until Edgar ran
towards a nearby alley. EMERLITO gave chase but failed to catch Edgar, as the latter
jumped into a river. EMERLITO waited for Edgar to come up for air. After ten to fteen
minutes, EMERLITO got impatient and went back to Liwayway Street. After seeing no one
in the area, he went to Javier II Street. Along the way he saw people running, and then
someone shouted: "Mang Emer, iyong kapatid ninyo nakasaksak namatay " (Mang Emer,
your brother stabbed and killed a man). Another person advised him not to proceed to the
scene of the incident and to go home instead. EMERLITO followed the advice. He did not
take his brother to the authorities because not one of his brothers was at home when he
got there. Neither did he go to the police to "explain" the incident, as he did not know much
about it. 1 8
Conrado Gungon attempted to bolster EMERLITO's account by claiming that at the
time of the incident, he saw Fernando Santos and a certain Rey chasing LONGASA at Javier
II. He followed the three to a corner near General Luna Street. There he saw Fernando and
Rey stab LONGASA; after which the assailants ran towards General Luna Street. The two
attackers had no other companion. Conrado went home after the incident. 1 9
In its Joint Decision, 2 0 the trial court found Jimenez's testimony to be credible and
supportive of the theory of conspiracy among the accused. It found the following
circumstances to be more than su cient to prove that the accused-appellants and their
co-accused had common design to kill LONGASA and were united in its execution: (1) their
simultaneous acts and concerted effort in surrounding the victim; (2) all of them carried
weapons, which they used against the victim; (3) they took turns in disabling the victim
with blows administered with a piece of wood and bottles; (4) the victim's arms were
restrained when the death blows were in icted; (6) none of the accused-appellants tried to
dissuade their companions from delivering fatal wounds on the victim; as a matter of fact,
they continued attacking the victim until the latter was already down and gasping for
breath; and (7) the number of wounds in icted on the victim was a mute testimony of the
vengeful fury and brutality of the deadly attack upon him. Conspiracy having been
established, the act of one was the act of all.
The trial court ruled against the presence of treachery, since LONGASA was
engaged in a ght with the accused before the fatal attack and was, therefore, su ciently
warned of the assault against him. However, it appreciated against the accused the
qualifying aggravating circumstance of taking advantage of superior strength because of
the superior number of the accused, most of whom were armed with weapons; while the
victim was alone, with his arms held behind him by two of the assailants.
The trial court rejected the defense of alibi for failure of accused-appellants to prove
that they were so far away from the scene of the crime as to be physically impossible for
them to be there when the crime was committed. cdphil
The trial court thus ruled that the crime committed was murder and decreed; thus:
WHEREFORE, all considered, the Court nds all the three (3) accused
GUILTY beyond reasonable doubt of the crime of MURDER and sentences each of
them as follows:
a) Accused REGANDO VILLONES y PASCASIO and EMERLITO N. SANTOS,
there being no aggravating and mitigating circumstance, to suffer
the penalty of RECLUSION PERPETUA;
b) Accused RUEL N. SANTOS, appreciating the privileged mitigating
circumstance of minority in his favor, being 16 years old at the time
of the commission of the offense, to suffer an indeterminate
penalty of TEN (10) YEARS of prision mayor as minimum, to
SEVENTEEN (17) YEARS of reclusion temporal as maximum.
Likewise, all the accused are hereby ordered to indemnity, jointly and severally, the
heirs of GERARDO LONGASA in the amount of P8,500.00 as actual damages, and
the additional sum P50,000.00, as civil indemnity for the death of the said victim,
and the costs of suit.
Accused-appellants REGANDO, RUEL, and EMERLITO seasonably appealed to us. 2 1

In their Brief, accused-appellants REGANDO and EMERLITO, represented by the
Public Attorney's Office, contend that the trial court committed the following errors:
I
. . . IN GIVING FULL WEIGHT AND CREDENCE TO THE OTHERWISE
UNCORROBORATED, INCREDIBLE AND FABRICATED TESTIMONY OF
PROSECUTION WITNESS EDGARDO JIMENEZ.

II
. . . IN FINDING ACCUSED-APPELLANT REGANDO VILLONES GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED.
III
. . . IN FINDING THAT THERE EXISTS CONSPIRACY IN THE CASE AT BAR.
In his separate Brief, accused-appellant RUEL imputes upon the trial court the
following errors:
I.
. . . IN NOT HOLDING THAT EDGAR JIMENEZ IS NOT COMPETENT TO TESTIFY
ON THE PARTICIPATION OF RUEL SANTOS CONSIDERING HE WAS NOT AN
EYEWITNESS AND HIS TESTIMONY IS, THEREFORE, HEARSAY.
II.
. . . IN HOLDING THAT ACCUSED RUEL SANTOS WAS IN CONSPIRACY AMONG
THE OTHER ACCUSED IN THE KILLING OF GERARDO LONGASA.
III.
. . . IN DISREGARDING THE TESTIMONY OF EMERLITO SANTOS.
IV.
. . . IN DISREGARDING THE TESTIMONY OF CONRADO GUNGON.
All accused-appellants attack the credibility of lone eyewitness Edgar Jimenez.

REGANDO and EMERLITO wonder why Edgar took a longer route through Javier II Street to
get to Liwayway Street instead of just crossing the bridge that separated Duhat from
Liwayway Street, which was shorter route. Another thing which they nd illogical was
Edgar's failure to shout for help and to do anything to save his friend LONGASA. As to
Edgar's testimony that he was mauled by the accused, accused-appellants theorize that
Edgar could have been a participant in "the rumble," which made him a biased and
unreliable witness. Moreover, Edgar could not have witnessed the crime, as he was then
running away from the scene to escape further injuries. Additionally, no one corroborated
Edgar's testimony; hence, it is self-serving.
RUEL claims that Edgar Jimenez committed inconsistencies on material points,
especially on who actually stabbed LONGASA and how many times he was so stabbed.
Edgar was, likewise, unable to make up his mind whether he was running away from the
crime scene or staying at a safe distance from the incident. RUEL nds illogical and
incredible the story of Edgar that accused attacked him when he was merely looking for
LONGASA, and that while Edgar was originally the target of the accused's aggression, they
inexplicably vented their ire on LONGASA and allowed Edgar to witness everything and
walk away untouched. RUEL also stresses that the prosecution did not disprove
EMERLITO's testimony that Edgar was in a river near Liwayway Street while the incident
was taking place; hence, he could not have witnessed the crime. Besides, Edgar's
testimony was disproved by Gungon, who testi ed that Reynaldo and Fernando Santos
were the ones who stabbed LONGASA, and that the said assailants had other companions.
Accused-appellants insist on the credibility of the testimony of the defense
witnesses. They further claim that they were able to explain their whereabouts during the
perpetration of the offense, and that they had other witnesses to corroborate their
respective versions.
Finally, accused-appellants assert that there is no su cient proof of conspiracy. The
short interval between the attack on Edgar and the attack on LONGASA precluded the
existence of a preconceived plan among the accused to so assault LONGASA. Additionally,
if there was indeed conspiracy among the accused, all should have stabbed LONGASA, not
just that some of them hit the victim with bottles or a piece of wood.
In the Consolidated Brief for the Appellee, the O ce of the Solicitor General (OSG)
maintains that the alleged lapses in Edgar Jimenez's testimony were duly explained and
the alleged inconsistencies were too trivial to impair his straightforward account of the
crime. His failure to help his friend while the latter was under attack was understandable
considering that the aggressors had the strength of number. At any rate, the trial court
found Edgar credible. It is well-settled that a trial court's assessment of a witness's
testimony is entitled to great respect on appeal.
As to RUEL's claim of lack of logic in the version of Edgar, the OSG argues that it is
of judicial knowledge that persons have been assaulted for no apparent reason
whatsoever. 2 2
The OSG considers Gungon's testimony undeserving of consideration. Gungon
failed to explain why he gave his account of the crime only on 1 August 1995 or fteen
months after the incident in question. His long unexplained silence makes one suspicious
of his motives; hence his testimony is unworthy of belief. 2 3
Finally, the OSG agrees with the trial court's rejection of accused-appellants' defense
of alibi and with the nding of conspiracy. It argues that there was no showing of physical
impossibility for the accused to be at the crime scene when the crime was committed;
besides, they were positively identi ed by Edgar Jimenez as among LONGASA's attackers.
As to conspiracy, the same can easily be deduced from the manner of the commission of
the offense and from the concerted acts of the accused to obtain a criminal objective. 2 4
As often happens in criminal cases on appeal, we are asked to disregard the
testimony of a prosecution witness for being incredible, and to give full credence to those
of the defense and decree accused-appellants' acquittal. Among the discrepant accounts
of the same incident, we choose to believe the one certi ed by the trial judge to be
credible, in this case, the testimony of Edgar Jimenez. The judge had the distinct
advantage of having personally heard the testimonies of Edgar and the witnesses for the
defense, and observed their deportment and manner of testifying during, the trial. It is
settled that the trial judge's ndings on the credibility of witnesses will not generally be
disturbed unless said ndings are arbitrary, or facts and circumstances of weight and
in uence have been overlooked, misunderstood, or misapplied by the trial judge which, if
considered, would have affected the result of the case. 2 5 None of the exceptions have
been shown to exist in the instant case.
Indeed, our perusal of the transcript of the testimony of Edgar Jimenez con rms his
trustworthiness. He told a consistent story throughout his two turns at the witness stand.
He corrected misimpressions by the trial judge and examining counsel, and he
satisfactorily explained the apparent lapses in his testimony. He was frank about his dark
history as a drug user who was once the subject of a criminal case in court. It must be
noted that a criminal record does not necessarily make one all incredible witness. 2 6
Edgar's honesty in revealing his past without hesitation bolsters his credibility.
The inconsistencies between Edgar's testimony and sworn statement given to the
police were likewise adequately explained. In any case, a sworn statement or a davit,
being taken ex parte by a person other than the witness, is almost always incomplete and
often inaccurate, sometimes from partial suggestion or for want of suggestions and
inquiries. Omissions and misunderstandings by the writer are not infrequent, particularly
under circumstances of hurry and impatience. The in rmity of a davits as a species of
evidence is a matter of judicial experience. As such, an a davit taken ex-parte is generally
considered to be inferior to testimonies made in open court. 2 7
Furthermore, as the OSG correctly opined, the ndings of medico-legal o cer Dr.
Ronaldo Mendez served to corroborate Edgar's testimony. LONGASA's injuries, recorded
in Dr. Mendez's report, re ected the severe beatings LONGASA suffered at the hands of
the accused as narrated by Edgar.
The bromidic defense of alibi cannot bene t accused-appellants. In the face of the
positive identi cation of the accused by Edgar, such defense is worth nothing. 2 8 Besides,
accused-appellants were unable to prove that it was physically impossible for them to be
at the crime scene at the time the crime was committed. On the contrary, REGANDO and
RUEL admitted that in just a short time they were able to get to the crime scene by
walking. For his part, EMERLITO acknowledged his involvement in a ght which preceded
LONGASA's killing, and he conceded that he was able to return to the crime scene, or near
the crime scene, at or about the time of the commission of the offense. The alibi which is
su cient to acquit an accused of a criminal charge must be that which shows it was
physically impossible for him to be at the crime scene at the time of the commission of
the crime. 2 9
As to the trial court's nding of conspiracy among the accused, we nd the same to
be supported by evidence. For conspiracy to exist, it is not required that there be an
agreement for an appreciable period prior to the occurrence. It is su cient that at the time
of the commission of the offense, the accused had the same purpose and were united in
its execution. The agreement to commit a crime may be gleaned from the mode and
manner of the commission of the offense or inferred from the acts of the accused which
point to a joint purpose or design, concerted action, and community of intent. 3 0 In this
case, the accused simultaneously attacked LONGASA, with two of them holding the
victim's hands or arms. Some struck LONGASA with a piece of wood or bottles and two
others stabbed him. The attack continued until LONGASA fell dead. These acts clearly
point to a joint purpose to accomplish the desired end. LLjur
However, we do not share the assessment of the trial court that there was no
treachery in this case because the victim had engaged in a ght previous to the killing and
was thus forewarned of an attack against him. Treachery may still be appreciated even
when the victim was forewarned of danger to his person. What is decisive is that the
execution of the attack made it impossible for the victim to defend himself or to retaliate.
3 1 The overwhelming number of the accused, their use of weapons against the unarmed
victim, and the fact that the victim's hands were held behind him preclude the possibility of
any defense by the victim.
The other qualifying circumstance of abuse of superior strength, which the trial
court appreciated, will no longer be taken against accused-appellants, for it is absorbed in
treachery. 3 2
The penalty for the murder is reclusion perpetua to death pursuant to Article 248 of
the Revised Penal Code as amended by R.A. No. 7659. There being no mitigating or
aggravating circumstance proved in favor of or against EMERLITO and REGANDO, the trial
court correctly imposed the penalty of reclusion perpetua. 3 3
As to RUEL, who was only 16 years old when the offense in question was
committed, the trial court correctly appreciated in his favor the privileged mitigating
circumstance of minority. Pursuant to paragraph 2 of Article 68 of the Revised Penal Code,
the penalty next lower to that prescribed by law shall be imposed; in this case the penalty
shall be reclusion temporal. 3 4 Again, there being no proof of any modifying circumstance,
said penalty shall be imposed in its medium period. 3 5 Since RUEL is entitled to the
bene ts of the Indeterminate Sentence Law, he shall be sentenced to suffer an
indeterminate penalty whose minimum shall be within the range of prision mayor and
whose maximum shall be within the range of reclusion temporal. The penalty imposed
upon him by the trial court, i.e., ten years of prision mayor as minimum to seventeen years
of reclusion temporal as maximum, is therefore correct.
The awards of P50,000 as indemnity for the death of LONGASA and of actual
damages of P8,500 are in conformity with current case law and with the agreement of the
parties, respectively.
WHEREFORE, we DISMISS the appeal and AFFIRM the challenged Joint Decision of
23 November 1995 of Branch 170 of the Regional Trial Court of Malabon, Metro Manila, in
Criminal Cases Nos. 14943-MN and 15506-MN convicting accused-appellants REGANDO
P. VILLONES, EMERLITO N. SANTOS, and RUEL L. SANTOS of the crime of murder and
sentencing the rst two accused to suffer the penalty of reclusion perpetua and the third
accused, to an indeterminate penalty of ten (10) years of prision mayor as minimum to
seventeen (17) years of reclusion temporal as maximum; and ordering all accused-
appellants to pay the heirs of the victim GERARDO LONGASA P50,000 as death indemnity
and P8,500 as actual damages.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, Vitug, Panganiban and Quisumbing, JJ ., concur.
Footnotes
1. His surname is alternately spelled Villones and Villonez in the various issuances by the lower
court and the transcripts of stenographic notes but Villonez in the Information in
Criminal Case No. 14943-MN (Original Record [OR], Criminal Case No. 14943-MN, 1) and
the Joint Decision (Id., 331-341). However, he signed his name as R. Billiones in his
motion for reinvestigation (id., 7-8) and notice of appeal (id., 347).
2. He is referred to as Ruel in all the pleadings; however, in his certi cate of live birth ( id., 117 ),
his first name is spelled Rowell.
3. OR, Criminal Case No. 14943-MN, 331-341, Rollo, 21-31. Per Judge Benjamin T. Antonio,
Henceforth, all references to the original record are to that in Criminal Case No. 14943-
MN, unless otherwise specified.
4. Id., 1.
5. OR, 25.
6. Id., Criminal Case No. 15506, 1.
7. Or, 7.
8. Id., 16.
9. Witnesses for the defense, however, stated that Dede Santos was the alias of Fernando
Santos (TSN, 18 July 1995, 3; TSN, 1 August 1995, 4).
10. TSN, 8 November 1994, 2-13; TSN, 10 November 1994, 2-5, 9-15.
11. Id., 5-17.
12. OR, 70.
13. TSN, 24 November 1994, 5-12.

14. Id., 12-13.
15. TSN, 6 February 1995, 2-15.
16. TSN, 9 February 1995, 2-7.

17. TSN, 13 February 1995, 3-15.
18. TSN, 18 July 1995, 2-10.

19. TSN, 1 August 1995, 2-5.
20. Supra note 3.
21. OR, 346, 347.

22. Citing People v. Ilaoa, 233 SCRA 231 [1994].
23. Citing People v. Ompad, 233 SCRA 62 [1994].

24. Citing People v. Silong, 232 SCRA 487 [1994].
25. People v. Leoterio , 264 SCRA 608, 617 [1996]; People v. Balamban , 264 SCRA 619, 629
[1996].
26. See Sec. 20, par. 2, Rule 130, RULES OF COURT.
27. People v. Ong Co , 245 SCRA 733, 742-743 [1995]; People v. Bayani , 262 SCRA 660, 680
[1996]
28. People v. Alshaika , 261 SCRA 637, 646 [1996]; People v. De Guzman , 265 SCRA 228, 245
[1996].
29. People v. Quijada, 259 SCRA 191, 214 [1996]; People v. Balamban, supra note 25, at 631.
30. People v. Sequiño , 264 SCRA 79, 101-102 [1996]; People v. Tabag , 268 SCRA 113, 127
[1997].
31. People v. Landicho , 258 SCRA 1, 28 [1996]; People vs. Tobias , 267 SCRA 229, 255-256
[1997].
32. People v. De Leon, 248 SCRA 609, 624 [1995]; People v. Landicho, supra note 31, at 29.
33. Art. 63, par. 2, REVISED PENAL CODE.


THIRD DIVISION
[G.R. No. 169246. January 26, 2007.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . NICOLAS

GUZMAN y BOCBOSILA , accused-appellant.
DECISION
CHICO-NAZARIO , J : p
Man is subject to innumerable pains and sorrows by the very condition of

humanity, and yet, as if nature had not sown evils enough in life, we are adding
grief to grief and aggravating the common calamity by our cruel treatment of one
another. — Joseph Addison.
The passage depicts the tragic fate of the deceased victim in the case at bar. His
ultimate dream was to become a pilot so that he would have enough money to shoulder
the schooling and education expenses of his younger siblings. Sadly, however, this
dream will never become a reality as his young life was brutally snuffed out by certain
violent individuals. He was a minor at the time of his death. Now his family is seeking
justice for his untimely and senseless killing.
For review is the Decision of the Court of Appeals in CA-G.R. C.R.-H.C. No. 00095,
dated 28 February 2005, 1 a rming with modi cation the Decision of the Regional Trial
Court (RTC) of Quezon City, Branch 69, in Criminal Case No. Q-99-88737, dated 12
November 2001, 2 nding accused-appellant Nicolas Guzman y Bocbosila guilty beyond
reasonable doubt of the crime of murder, sentencing him to suffer the penalty of
reclusion perpetua, and ordering him to pay the heirs of Michael Balber (Michael) the
amount of P35,470.00 as actual damages, P50,000.00 as civil indemnity, and
P50,000.00 as moral damages.
On 29 November 1999, appellant was charged in an Information 3 with Murder
allegedly committed as follows:
That on or about the 25th day of November 1999 in Quezon City,
Philippines, the above-named accused, conspiring and confederating with two
other persons, whose true names/identities and whereabouts are still unknown,
and mutually helping one another with intent to kill, with treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and employ personal violence upon the person of one MICHAEL ANGELO
BALBER Y CASTILLON, a minor, 17 years of age, by then and there stabbing him
on the trunk with the use of a bladed weapon, thereby in icting upon him serious
and grave wound which was the direct and immediate cause of his untimely
death to the damage and prejudice of the heirs of Michael Angelo Balber y
Castillon. cCTaSH
When arraigned on 21 January 2000, 4 appellant pleaded "Not Guilty" to the

charge therein. Trial on the merits thereafter ensued.
In building its case against appellant, the prosecution relied on the testimonies of
its witnesses, namely: Ronald Santiago (Ronald), Edgardo Bauto (Edgardo), Danilo
Balber (Danilo), Police Inspector Alberto Malaza (Inspector Malaza), SPO3 Samuel
Quinto (SPO3 Quinto), and Dr. Francisco Supe, Jr. (Dr. Supe). Their testimonies are
summarized as follows:
Ronald is a jeepney driver and resident of Barangay Commonwealth, Quezon City.
He testi ed that on 25 November 1999, at about 9:00 in the evening, he stopped by and
ate at a carinderia located at the corner of Sto. Nino Street and Mactan Street, Brgy.
Commonwealth, Quezon City. After eating, he sat on a bench just beside the carinderia
and rested. He noticed appellant and two other persons having a drinking spree in a
nearby grocery store. He also saw Michael walking towards the direction of the same
grocery store. When Michael was passing in front of the grocery store, appellant and
his two companions suddenly approached and surrounded Michael. Appellant
positioned himself at the back of Michael while his two companions stood in front of
Michael. Suddenly, they grabbed the shoulders of Michael and overpowered the latter.
One of appellant's companions, whom he described as a male with long hair, drew out a
knife and repeatedly stabbed Michael at the stomach. Afterwards, the appellant's other
companion, whom he described as a male with at top hair, took the knife from the
companion with long hair, and also stabbed Michael at the stomach. Later, appellant
went in front of Michael, took the knife from the companion with at top hair, and
likewise stabbed Michael at the stomach. Appellant also kicked Michael when the latter
was already lying on the ground. He witnessed this stabbing incident at a distance of
five arms' length. 5
Afraid and confused, he immediately went home. The next day, however, he went
to the house of Michael's family and narrated the incident to Michael's father, Danilo.
Subsequently, he was accompanied by Danilo to the Batasan Hills Police Station 6
where he gave a statement about the incident. 6
Edgardo Bauto (Edgardo) is also a tricycle driver and resident of Brgy.
Commonwealth, Quezon City. He narrated that on 25 November 1999, at around 9:00 in
the evening, he was standing at the corner of Sto. Nino Street and Mactan Street, Brgy.
Commonwealth, Quezon City, when he heard a female voice shouting "Sinasaksak!"
When he glanced at the direction of the said shouts, he saw, at a distance of about ve
arms' length, appellant and the latter's two companions taking turns in stabbing
Michael. One of the appellant's companions, whom he described as a toothless male
with a long hair, was the rst one to stab Michael. Afterwards, the appellant's other
companion, whom he described as a male with at top hair, took the knife from the
toothless male with a long hair and stabbed Michael. Subsequently, appellant also took
the knife from his companion with flat top hair and stabbed Michael too. 7
Thereafter, he immediately ran and proceeded to the house of Michael's family
and informed Michael's parents about the incident. Michael's parents rushed to the
crime scene and took Michael to a hospital. The next day, he was accompanied by
Danilo and a certain Ramiro Alfaro to Batasan Hills Police Station 6 where he gave a
statement about the incident. 8
Danilo, Michael's father, testi ed that on 25 November 1999, at about 9:00 in the
evening, he was walking on his way home along the corner of Sto. Nino Street and
Mactan Street, Brgy. Commonwealth, Quezon City, when he saw Michael lying along Sto.
Nino Street. He also saw appellant and the latter's two male companions near Michael's
body. When he was about to approach them, they immediately ran away. He chased and
threw stones at them. Appellant and his two companions proceeded to the former's
house and locked the door. He tried to follow them all the way to the house but
appellant's relatives blocked his way to the door and told him to leave. Thereafter, he
went back to Michael and took the latter to Fairview Hospital. 9 He was later informed
by the doctors that Michael was already dead.
The next day, he went to Batasan Hills Police Station 6 and gave a statement
about the incident. In an effort to settle the instant case, appellant's wife and daughter
told Danilo that they would sell a bus which they owned and would turn over to him the
proceeds thereof. He also stated that Michael wanted to become a pilot so that, as the
eldest of the children, he would be the one to shoulder the education of his siblings. 1 0
Inspector Malaza is a member of the police force assigned at Police Community
Precinct No. 1, Batasan Hills, Quezon City. He testi ed that on 25 November 1999, at
about 9:00 in the evening, he was on his way home on board his owner type jeep. Upon
reaching the corner of Sto. Nino Street and Mactan Street, Brgy. Commonwealth,
Quezon City, he noticed a commotion nearby. He slowed down his vehicle and saw, at a
distance of ve to ten meters, appellant stabbing and kicking Michael. He also noticed
that the appellant's two companions were armed with bladed weapons. He alighted
from his vehicle and approached appellant and his two companions. After introducing
himself as a police o cer, appellant and his two companions scampered away. He ran
after them but caught only appellant. The two other companions of the appellant
successfully escaped. Thereafter, he handcuffed appellant and brought him to Batasan
Hills Police Station 6. He turned him over to a police investigator therein and executed
an affidavit of arrest. 1 1
SPO3 Quinto is a police investigator at the Batasan Hills Police Station 6. He was
the one who investigated the incident. After the incident was reported to his station on
26 November 1999, he immediately went to the crime scene upon the advice of the
desk o cer. Since Michael was already brought to Fairview Hospital at that time, he
proceeded thereto. Upon arriving at the Fairview Hospital, he was informed that Michael
was already dead. He then went back to the station and took the statements of the
prosecution witnesses. 1 2
Dr. Supe is a medico-legal o cer of the PNP Crime Laboratory, Camp Crame,
Quezon City. He conducted the post mortem examination on Michael's body. His
testimony evolved on the matters stated in the Medico-Legal Report No. M-3112-99, 1 3
viz:
"POSTMORTEM FINDINGS:
Fairly developed, fairly nourished male cadaver in rigor mortis with

postmortem lividity at the dependent portions of the body. Conjunctivae are pale.
Lips and nail beds are cyanotic. Needle puncture mark is noted on the dorsum of
the right hand. There is fungal infection covering the entire groin and extending to
the buttocks. HTCSDE
"HEAD AND NECK:

1.) Abrasion, left superior orbital region, measuring 0.2 x 0.7 cm, 3.7
cm, from the anterior midline.
2.) Lacerated wound, left lateral orbital region, measuring 0.5 x 0.8 cm,
5 cm from the anterior midline.
3.) Abrasion, right inferior orbital region, measuring 0.6 x 2 cm, 1 cm
from the anterior midline.
"CHEST AND ABDOMEN:

1.) Abrasion, left inferior or mammary region, measuring 0.5 x 8.5 cm.
along the anterior midline.
2.) Stab wound, thru and thru, point of entry, left coastal region,
measuring 1 x 4 cm, 8 cm from the anterior midline, directed
posteriorwards and medialwards making a point of exit at the left
inferior mammary region, measuring 0.7 x 2.5 cm, 5 cm from the
anterior midline, superficial.
3.) Stab wound, left subcostal region, measuring 0.7 x 2.3 cm, 14.2 cm
from the anterior midline, 9 cm deep, directed posteriorwards,
slightly upwards and medialwards, lacerating the mesentery, small
intestine, left hemidiaphragm.
4.) Lacerated wound, thru and thru, point of entry, left inferior
clavicular region, measuring 2 x 7 cm, 4.5 cm from the posterior
midline, extending to the right inferior clavicular region and making
a point of exit thereat, measuring 1 x 3 cm, superficial.
5.) Two and a half liters of blood and blood clots were evacuated from
the abdominal cavity.
6.) The stomach is 250 ml full of billous fluid.
"Extremity:
1.) Lacerated wound, distal third of the right arm, measuring 0.4 x 1
cm, 2.5 cm lateral to its anterior midline.
"CONCLUSION:
Cause of death is hemorrhage and shock secondary to multiple stab

wounds of the trunk." 1 4
On the other hand, the defense presented the testimonies of appellant and
Antonio Sulficiencia (Antonio) to disprove the foregoing charges.
Appellant testi ed that on 25 November 1999, at about 9:00 in the evening, he
was inside his store located at No. 886 Mactan St. Brgy. Commonwealth, Quezon City,
when he heard shouts outside. He peeped through the window of his store and saw
Danilo and Ronald pulling out a certain Jesus de Guzman (Jesus) from the latter's
tricycle. Danilo and Ronald punched Jesus but the latter retaliated. Thereafter, a rumble
ensued. At the height of the brawl, he shouted 'Hoy! ano ba yan? Tama na yan! Itigil na
ninyo yan! Awatin na ninyo yan." Minutes later, Michael passed by his store and inquired
as to what was happening. He told Michael "Yung tatay mo at si Santiago (Ronald)
pinagtulungan si Rommel." Michael rushed to Danilo and paci ed the latter. Edgardo,
one of the participants therein, threw stones at Michael. At this point, a certain Lemuel
Grans Querubin (Lemuel) arrived and tried to join the fracas. Michael, however, blocked
Lemuel's way. The two wrestled and both of them fell to the ground. Moments later,
Lemuel stood up. Lemuel was holding a knife and his hands were bloodied. Michael, on
the other hand, was still lying on the ground. Lemuel then chased Danilo and Ronald but
the two were able to escape. Afterwards, Danilo, Ronald and five other persons returned
to the scene. Danilo was carrying a big bolo while the others were armed with stones
and lead pipe. Lemuel and Jesus ran towards the direction of Sto. Nino in order to
escape. 1 5
Appellant went outside his house to observe the situation. Five minutes later, the
group of Danilo, together with two policemen, proceeded to appellant's house. The
policemen forcibly entered appellant's house and pushed the latter against the wall.
They inquired as to the whereabouts of Lemuel and Jesus, who happened to be
appellant's bus conductor and driver, respectively. When they could not nd the two, the
policemen invited him to the police station. Appellant told them "Bakit ninyo ako
dadalhin? wala naman akong kinalaman diyan." From then on, the policemen held
appellant in custody. 1 6
Antonio was a former bus driver of appellant and a resident of Parañaque City.
He narrated that on 25 November 1999, at about 9:00 in the evening, he parked a bus
owned by appellant's cousin named Juanito Palmares (Juanito) just beside the
appellant's store. He went to appellant's store and conversed with the latter who was
inside the same store. Thereafter, he saw a rumble nearby. He ran and hid inside the
parked bus while appellant stayed inside his store. Later, the participants of the rumble
began to stone them. He alighted from the bus and went inside Juanito's house. He
noticed that appellant was still inside the store. Subsequently, he saw Lemuel running
and carrying a knife. He also heard Lemuel saying "Tapos na ang laban, manahimik na
kayo." Thereupon, he saw appellant being apprehended by policemen in civilian clothes.
17
On 12 November 2001, the RTC rendered its Decision convicting appellant of

murder. 1 8 It sustained the "clear, direct and positive" testimony of the prosecution
witnesses who all declared that they saw appellant stab Michael. It found no ill-motive
on the part of the prosecution witnesses in testifying against appellant. It also ruled
that there was treachery in the killing of Michael since the latter was unarmed,
unsuspecting and very young at the time of the attack. In ending, the RTC held:
WHEREFORE, judgment is rendered nding accused Nicolas Guzman Y
Bocbosila guilty beyond reasonable doubt of the crime of murder quali ed by
treachery. Accordingly, he is sentenced to suffer the penalty of reclusion perpetua
to death and further ordered to pay the heirs of the late Michael Angelo Balber the
sum of Thirty-Five Thousand Four hundred Seventy Pesos (P35,470.00),
Philippine Currency, as actual damages, excluding the Six Thousand Pesos
(P6,000.00) Bagbag Cemetery as there was no evidence to justify the award of
the same; Fifty Thousand Pesos (P50,000.00), as moral damages and the
additional civil indemnity of Fifty Thousand Pesos (P50,000.00).
Appellant led a Notice of Appeal on 26 November 2001. 1 9 On 28 February

2005, the Court Appeals promulgated its Decision a rming with modi cation the RTC
Decision. 2 0 The modification pertains only to the penalty imposed by the RTC, thus:
WHEREFORE, the Decision of the Regional Trial Court of Quezon City,
Branch 89, in Criminal Case No. Q-99-88737 is hereby AFFIRMED in all respects
except that the sentence be RECLUSION PERPETUA only.
On automatic review before us, appellant assigned the following errors of the
lower court:
I.
THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE [DOUBT] OF THE CRIME OF MURDER DESPITE THE
PALPABLE DISCREPANCIES AND INCONSISTENCIES IN THE TESTIMONIES OF
THE PROSECUTION WITNESSES.
II.
THE LOWER COURT ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE
EVIDENCE PRESENTED BY THE DEFENSE.
III.
THE LOWER COURT ERRED IN NOT ALLOWING THE ACCUSED-APPELLANT TO
PRODUCE SUBSTITUTE OR ADDITIONAL WITNESSES FOR HIS DEFENSE. acAESC
IV.
ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT CAN BE HELD LIABLE

FOR THE DEATH OF THE VICTIM, THE LOWER COURT ERRED IN APPRECIATING
THE QUALIFYING CIRCUMSTANCE OF TREACHERY. 2 1
Anent the rst issue, appellant claims that the testimonies of the prosecution
witnesses should not be given any weight as the same are lled with discrepancies and
inconsistencies. According to him, Ronald and Edgardo testi ed that appellant and his
two companions used only one knife in stabbing Michael. Inspector Malaza, however,
declared that appellant and his two companions were armed with separate knives
during the stabbing incident. He also avers that Inspector Malaza gave contradicting
versions of how the latter apprehended him after the incident. Further, Edgardo
testi ed that after the incident, he immediately went to the house of Michael and
informed Danilo of what he witnessed. Danilo, however, declared that while he was on
his way home, he saw Michael lying at the corner of Sto. Nino St. and Mactan St., and,
that the malefactors were running away.
Appellant's contention is bereft of merit.
A witness testifying about the same nerve-wracking incident can hardly be
expected to be correct in every detail and consistent with other witnesses in every
respect, considering the inevitability of differences in perception, recollection,
viewpoint, or impressions, as well as in their physical, mental, emotional, and
psychological states at the time of the reception and recall of such impressions. 2 2
Thus, we have followed the rule in accord with human nature and experience that honest
inconsistencies on minor and trivial matters serve to strengthen, rather than destroy the
credibility of a witness, especially of witnesses to crimes shocking to conscience and
numbing to senses. 2 3
The inconsistencies cited by appellant refer to minor and unimportant details
which do not adversely affect the credibility of the prosecution witnesses. Although the
testimony of Ronald and Edgardo as to the number of knives used in the stabbing
incident differs with that of Inspector Malaza, all of them declared under oath during
the trial that appellant stabbed Michael.
Thus, as aptly stated by the Court of Appeals, such inconsistency should not be
considered as a "fatal error," since what is important and decisive is that they had seen
appellant stab Michael and that they testified on the fact during the trial.
Besides, their testimonies on material and relevant points are substantially
consistent with each other. They testi ed that three persons, among whom was the
appellant, had stabbed Michael. Their descriptions of the faces, physical attributes, and
respective positions of appellant and his two companions during the attack are
compatible. They also stated that appellant was the last person who stabbed Michael.
As regards the alleged inconsistent testimony of Inspector Malaza as to how the
latter apprehended the appellant, it should be borne in mind that the weight of the
eyewitness account should be on the fact that the witness saw the accused commit the
crime and was positive of the latter's physical identi cation. 2 4 Inspector Malaza had
seen appellant stab Michael, and, in fact, apprehended him right after the incident.
Hence, the details on the manner by which Inspector Malaza apprehended the appellant
would be immaterial and irrelevant.
Appellant asserts that the testimony of Danilo runs counter to the testimony of
the other prosecution witnesses. Even if we were to disregard as evidence for the
prosecution the testimony of Danilo, the categorical and credible testimonies of the
other prosecution witnesses are su cient to support the nding of guilt on the part of
appellant. It should be emphasized that the testimony of one eyewitness would be
enough to support a conviction provided it is positive, credible, clear and
straightforward. 2 5
Apropos the second issue, appellant denied any liability and invoked alibi. He
argued that he was inside his store when the stabbing incident occurred, and, that it
was Lemuel who stabbed Michael. He also presented Antonio to corroborate his
testimony. IHCESD
For alibi to prosper, it is not enough for the accused to prove that he was
somewhere else when the crime was committed. He must likewise prove that it is
physically impossible for him to be present at the crime scene or its immediate vicinity
at the time of its commission. 2 6 If appellant was, as he claimed, inside his store at the
time of the incident, then it was not physically impossible for him to be at the crime
scene or in its immediate vicinity. His store is located just beside Mactan Street, 2 7 and
that he witnessed the incident at a distance of merely ve arms' length from his store.
2 8 Therefore, his defense of alibi must fail.
Antonio testi ed that he and appellant, who was inside his store, were having a
conversation when the incident occurred. A perusal of the records, however, shows that
appellant did not mention anything about such conversation. In fact, appellant did not
even mention the name of Antonio in his entire testimony. Given the foregoing, the
testimony of Antonio cannot be considered as credible.
In arguing the third issue, appellant avers that his constitutional rights to produce
evidence on his behalf and to due process were violated when the trial court denied the
motion of his counsel to present substitute witnesses.
In the Pre-Trial Order of the RTC dated 29 February 2000, the defense named
only four witnesses, to wit: Antonio, Lizardo Dedase, Eduardo Bidia, and accused
himself. 2 9 In the same order, the RTC stated the following:
All parties are informed that witnesses and documents which were not
mentioned in this pre-trial order shall not be entertained during the trial on the
merits. 3 0
During the trial, only appellant and Antonio were able to testify. When the two
other witnesses in the pre-trial order, namely, Lizardo Dedase and Eduardo Bidia, failed
to appear and testify in court several times, the defense counsel moved to substitute
them explaining that they were hesitant to testify, and, that one of them went home to
his province. 3 1
The RTC was correct in denying the defense counsel's motion for substitution of
witnesses since Section 4, Rule 118 of the Revised Rules on Criminal Procedure
mandates that the matters agreed upon in the pre-trial conference and as stated in the
pre-trial order shall bind the parties, to wit:
SEC. 4. Pre-trial order. — After the pre-trial conference, the court shall
issue an order reciting the actions taken, the facts stipulated, and evidence
marked. Such order shall bind the parties, limit the trial to matters not disposed of,
and control the course of the action during the trial, unless modi ed by the court
to prevent manifest injustice (Italics supplied).
The pre-trial order of the RTC dated 29 February 2000 clearly shows that the
defense named only four witnesses. The parties were also informed therein that
witnesses who were not mentioned in the pre-trial order will not be entertained during
the trial on the merits. Thus, pursuant to the afore-stated provision and its purpose of
preventing undue delay in the disposition of criminal cases and ensuring fair trial, the
denial of the defense counsel's motion for substitution of witnesses is justi ed.
Moreover, if appellant's motion for substitution of witnesses is given due course, it will
amount to an unreasonable disregard of solemn agreements submitted to and
approved by the court of justice and would make a mockery of the judicial process.
This is not to say, however, that such provision is absolute. It can be relaxed in
the greater interest of justice. Nevertheless, the exception does not apply in favor of
appellant as the RTC had observed that his motion for substitution of witnesses
appears to be a " shing expedition" of evidence which is clearly unfair to the case of the
prosecution. 3 2 Moreover, as aptly stated by the Solicitor General, if the two other
witnesses of appellant were indeed afraid or hesitant to testify, he should have moved
the RTC to subpoena the said witnesses to testify in court 3 3 pursuant to his
constitutional right to compulsory process to secure the attendance of his witnesses.
3 4 Unfortunately, appellant did not avail himself of this remedy.
As to the fourth issue, appellant contends that even if he were held liable for the
death of Michael, there was no treachery which will qualify the killing as murder.
According to him, there is no evidence to show that appellant and his two companions
had deliberately and consciously adopted their mode of attack to ensure its execution
without risk to themselves. The stabbing incident occurred in a place that was properly
lighted. There were many people in the area then walking in different directions. He
claims that if he and his two companions wanted to ensure that no risk would come to
them, then they could have chosen another time and place to attack Michael. IAETDc
Treachery is a sudden and unexpected attack under the circumstances that

renders the victim unable and unprepared to defend himself by reason of the
suddenness and severity of the attack. 3 5 It is an aggravating circumstance that
quali es the killing of a person to murder. Article 14, paragraph (16) of the Revised
Penal Code states the concept and essential elements of treachery as an aggravating
circumstance, thus:
ART. 14. The following are aggravating circumstances:
xxx xxx xxx
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against
the person, employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.
As can be gleaned from the foregoing, two essential elements/conditions are

required in order that treachery may be appreciated: (1) The employment of means,
methods or manner of execution that would ensure the offender's safety from any
retaliatory act on the part of the offended party, who has, thus no opportunity for self-
defense or retaliation; (2) deliberate or conscious choice of means, methods or manner
of execution. Further, it must always be alleged in the information and proved in trial in
order that it may be validly considered. 3 6
In the instant case, treachery was alleged in the Information against appellant. 3 7
Moreover, all the essential elements/conditions of treachery were established and
proven during the trial.
After attending a worship service at the Iglesia ni Kristo church in his barangay,
Michael proceeded home. While Michael was casually walking along the corner of Sto.
Nino Street and Mactan Street, appellant and his two companions, who were drinking
nearby, suddenly approached and surrounded Michael. Appellant positioned himself at
the back of Michael while his two companions stood in front of Michael. In an instant,
they grabbed the shoulders of Michael and overpowered the latter. One of the
appellant's companions, whom the prosecution witnesses described as a male with
long hair, drew out a knife and repeatedly stabbed Michael on the stomach. Unsatis ed,
the appellant's other companion, whom the prosecution witnesses described as a male
with at top hair, took the knife and stabbed Michael on the stomach. As the nale,
appellant went in front of Michael, took the knife and also stabbed Michael on the
stomach. When Michael fell on the ground, appellant kicked him at the body. Upon
noticing that the bloodied Michael was no longer moving, appellant and his two
companions fled the scene.
As viewed from the foregoing, the suddenness and unexpectedness of the attack
of appellant and his two companions rendered Michael defenseless, vulnerable and
without means of escape. It appears that Michael was unarmed and alone at the time
of the attack. Further, he was merely seventeen years of age then. 3 8 In such a helpless
situation, it was absolutely impossible for Michael to escape or to defend himself
against the assault of appellant and his two companions. Being young and weak,
Michael is certainly no match against adult persons like appellant and his two
companions. Michael was also outnumbered since he had three assailants, and, was
unarmed when he was stabbed to death. Appellant and his two companions took
advantage of their size, number, and weapon in killing Michael. They also deliberately
adopted means and methods in exacting the cruel death of Michael by rst surrounding
him, then grabbing his shoulders and overpowering him. Afterwards, each of them
repeatedly stabbed Michael with a knife at the stomach until the latter fell lifeless to the
ground. The stab wounds sustained by Michael proved to be fatal as they severely
damaged the latter's large intestine. 3 9
The fact that the place where the incident occurred was lighted and many people
were walking then in different directions does not negate treachery. It should be made
clear that the essence of treachery is the sudden and unexpected attack on an
unsuspecting victim without the slightest provocation on his part. 4 0 This is even more
true if the assailant is an adult and the victim is a minor. Minor children, who by reason
of their tender years, cannot be expected to put up a defense. Thus, when an adult
person illegally attacks a minor, treachery exists. 4 1 As we earlier found, Michael was
peacefully walking and not provoking anyone to a ght when he was stabbed to death
by appellant and his two companions. Further, Michael was a minor at the time of his
death while appellant and his two companions were adult persons. IECcAT
With regard to the allegation in the Information that the killing of Michael was
attended by an aggravating circumstance of evident premeditation, the RTC and the
Court of Appeals were correct in disregarding the same against appellant. The essence
of evident premeditation as an aggravating circumstance is that the execution of the
criminal act was preceded by cool thought and re ection upon the resolution to carry
out the criminal intent during a space of time su cient to arrive at a calm judgment. 4 2
It implies a deliberate planning of the crime before executing it. It must also be shown
how and when the plan to kill was hatched or what time elapsed before it was carried
out. 4 3 Further, there must be proof that the accused meditated and re ected on his
intention between the time when the crime was conceived by him and the time it was
actually perpetrated. 4 4 In the case at bar, there is no evidence to show that appellant
and his two companions had previously planned and re ected in killing Michael. When
appellant and his two companions saw Michael on that fateful night, they immediately
pounced on him. The thought of killing Michael came into the minds of appellant and
his two companions only when they saw Michael walking on the road. Indeed, the killing
of Michael was sudden and unplanned.
On another point, we agree with the penalty imposed by the Court of Appeals.
Article 248 of the Revised Penal Code states that murder is punishable by reclusion
perpetua to death. Article 63 of the same Code provides that if the penalty is
composed of two indivisible penalties, as in the instant case, and there are no
aggravating or mitigating circumstances, the lesser penalty shall be applied. Since
there is no mitigating or aggravating circumstance in the present case, and, treachery
cannot be considered as an aggravating circumstance as it was already taken as a
qualifying circumstance, the lesser penalty of reclusion perpetua should be imposed.
As regards the damages awarded by the Court of Appeals, we rule that the sum of
P35,470.00 as actual damages should be reduced to P25,670.00 since the receipts on
record amounts only to P25,670.00. 4 5 It is well-settled that only expenses supported
by receipts will be allowed for actual damages. 4 6 Furthermore, exemplary damages
should also be awarded to the heirs of Michael since the qualifying circumstance of
treachery was rmly established by the prosecution. 4 7 If a crime is committed with an
aggravating circumstance, either qualifying or generic, an award of P25,000.00 as
exemplary damages is justi ed under Article 2230 of the New Civil Code. 4 8 This kind of
damage is intended to serve as a deterrent to serious wrongdoings, and as a
vindication of undue sufferings and wanton invasion of the rights of an injured person
or punishment for those guilty of outrageous conduct. 4 9
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. C.R.-H.C. No. 00095
dated 28 February 2005 is hereby AFFIRMED with MODIFICATIONS. Appellant is hereby
found guilty beyond reasonable doubt of the crime of murder, for which, he is
accordingly sentenced to suffer the penalty of reclusion perpetua. Appellant is further
ordered to pay the heirs of Michael P25,670.00 as actual damages; P50,000.00 as
moral damages; P50,000.00 as civil indemnity for Michael's death; and P25,000.00 as
exemplary damages. TIaCAc
SO ORDERED.
Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.
Footnotes
1. Penned by Associate Justice Jose Catral Mendoza with Associate Justices Romeo A.
Brawner and Edgardo P. Cruz, concurring; rollo, pp. 3-15.
2. Penned by Judge Elsa I. De Guzman; CA rollo, pp. 29-40.

3. CA rollo, p. 13.
4. Records, pp. 14-15.
5. TSN, 3 August 2000, pp. 2-11.
6. Id. at 8-11.
7. TSN, 15 August 2000, pp. 2-4.
8. Id. at 4-6.
9. TSN, 21 November 2000, pp. 2-7.
10. Id. at 8-16.
11. TSN, 4 December 2000, pp. 17-23.
12. TSN, 12 February 2001, pp. 2-5.
13. TSN, 14 February 2001, pp. 2-16.

14. Records, pp. 172-172-A.
15. TSN, 28 May 2001, pp. 2-15.
16. Id. at 15-20.
17. Id. at 2-12.
18. Supra note 2 at 39.
19. Records, p. 161.
20. Supra note 1 at 14.

21. CA rollo, pp. 63-64.
22. People v. Pateo, G.R. No. 156786, 3 June 2004, 430 SCRA 609, 615.
23. People v. Alcantara, G.R. No. 157669, 14 April 2004, 427 SCRA 673, 681-682.
24. People v. Alicnas, G.R. No. 142855, 17 March 2004, 425 SCRA 627, 641.
25. People v. Jubail, G.R. No. 143718, 19 May 2004, 428 SCRA 478, 495.
26. People v. Abes, G.R. No. 138937, 20 January 2004, 420 SCRA 259, 274.
27. TSN, 28 May 2001, p. 7.
28. Id. at 8.
29. Records, pp. 18-19.
30. Id.
31. TSN, 29 September 2001, p. 4.
32. Supra note 29.
33. CA rollo, p. 110.
34. Article III, Section 14 (2) of the 1987 Constitution.

35. People v. Santos, G.R. No. 127492, 16 January 2004, 420 SCRA 37, 49.
36. Rule 110, Sections 8 and 9 of the Revised Rules on Criminal Procedure.
37. Supra note 3.
38. Records, p. 164 (Exh. C).
39. Supra notes 13 and 14.

40. People v. Fallorina, G.R. No. 137347, 4 March 2004, 424 SCRA 655, 674.
41. Id.
42. People v. Tagana, G.R. No. 133027, 4 March 2004, 424 SCRA 620, 643.
43. People v. Penones, G.R. No. 71153, 16 August 1991, 200 SCRA 624, 635.
44. People v. Lacao, No. L-32078, 30 September 1974, 60 SCRA 89, 95.
45. Records, pp. 165-A (Exh. E) and 166 (Exh. F).
46. People v. Medina, G.R. No. 155256, 30 July 2004, 435 SCRA 610, 623.
47. People v. Manambay, G.R. No. 130684, 5 February 2004, 422 SCRA 73, 90. HCcaTS
48. People v. Simon, G.R. No. 130531, 27 May 2004, 429 SCRA 330, 356.
49. People v. Orilla, G.R. Nos. 148939-40, 13 February 2004, 422 SCRA 620, 643.

FIRST DIVISION
[G.R. No. L-28232. February 6, 1971.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. JAIME JOSE

Y GOMEZ, ET AL., defendants. JAIME JOSE Y GOMEZ, BASILIO
PINEDA, JR., alias "BOY," EDGARDO AQUINO Y PAYUMO and
ROGELIO CAÑAL Y SEVILLA , defendants-appellants.
Solicitor General Antonio P. Barredo and Solicitor Augusto M. Amores for

plaintiff-appellee.
Baizas, Alberto & Associates, Andreciano F. Caballero and Lota, Paraiso, Garcia &
Dueñas for defendant-appellant Jaime G. Jose.
Mabanag, Eliger & Associates for defendant-appellant Basilio Pineda, Jr.
Sycip, Salazar, Luna, Manalo & Feliciano for defendant-appellant Edgardo P.
Aquino.
Antonio Coronel Law O ce and Roberto J. Ignacio for defendant-appellant
Rogelio S. Canial.
DECISION
PER CURIAM : p
The amended complaint filed in this case in the court below, reads as follows:
"The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO

PINEDA, JR. alias "BOY," EDUARDO AQUINO Y PAYUMO alias "EDDIE" and
ROGELIO CAÑAL Y SEVILLA alias "ROGER," as principals, WONG LAY PUENG,
SILVERIO GUANZON Y ROMERO and JESSIE GUION Y ENVOLTARIO as
accomplices, of the crime of Forcible Abduction with rape, committed as follows:
"That on or about the 26th day of June, 1967, in Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named principal
accused, conspiring together, confederating with and mutually helping one
another, did, then and there, wilfully, unlawfully and feloniously, with lewd design,
forcibly abduct the undersigned complainant against her will, and did, then and
there take her, pursuant to their common criminal design, to the Swanky Hotel in
Pasay City, where each of the four (4) accused, by means of force and
intimidation, and with the use of a deadly weapon, have carnal knowledge of the
undersigned complainant against her will, to her damage and prejudice in such
amount as may be awarded to her under the provisions of the civil code.
"That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE

GUION y ENVOLTARIO, without taking a direct part in the execution of the offense
either by forcing, inducing the principal accused to execute, or cooperating in its
execution by an indispensable act, did, then and there cooperate in the execution
of the offense by previous or simultaneous acts, that is, by cooperating, aiding,
abetting and permitting the principal accused in sequestering the undersigned
complainant in one of the rooms of the Swanky Hotel then under the control of
the accused Wong Lay Pueng, Silverio Guanzon y Romero and Jessie Guion y
Envoltario, thus supplying material and moral aid in the consummation of the
offense.
"That the aforestated offense has been attended by the following

aggravating circumstances:
1. Use of a motor vehicle.
2. Night time sought purposely to facilitate the commission of the

crime and to make its discovery difficult;
3. Abuse of superior strength;

4. That means were employed or circumstances brought about which
added ignominy to the natural effects of the act; and
5. That the wrong done in the commission of the crime be deliberately

augmented by causing other wrong not necessary for the commission.
"CONTRARY TO LAW."
Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in the
above-quoted amended complaint; however, in an order dated July 11, 1967, the court
reserved judgment "until such time as the prosecution shall have concluded presenting
all of its evidence to prove the aggravating circumstances listed in the complaint." Upon
the other hand, the rest of the defendants went to trial on their respective pleas of not
guilty. After hearing on the merits, the court below rendered its decision on October 2,
1967, the dispositive portion of which reads as follows:
"WHEREFORE, the Court nds the accused Jaime Jose, Rogelio Cañal,
Eduardo Aquino and Basilio Pineda, Jr. guilty beyond reasonable doubt of the
crime of forcible abduction with rape as described under Art. 335 of the Revised
Penal Code, as emended, and hereby sentences each of them to the death penalty
to be executed at a date to be set and in the manner provided for by law; and each
to indemnify the complainant in the amount of ten thousand pesos. On the
ground that the prosecution has failed to establish a prima facie case against the
accomplices Wong Lay Pueng, Silverio Guanzon y Romero, and Jessie Guion y
Envoltario, the Motion to Dismiss led for and in their behalf is hereby granted,
and the case dismissed against the aforementioned accused.
"Insofar as the car used in the abduction of the victim which Jaime Jose
identi ed by pointing to it from the window of the courtroom and pictures of
which were submitted and marked as Exhibits "M" and "M-1," and which Jaime
Jose in his testimony admitted belonged to him, pursuant to Art. 45 of the
Revised Penal Code, which requires the con scation and forfeiture of the
proceeds or instruments of the crime, the Court hereby orders its confiscation."
This case is now before us by virtue of the appeal interposed by Basilio Pineda,
Jr., Edgardo Aquino, and Jaime Jose, and for automatic review as regards Rogelio
Cañal. However, for practical purposes all of them shall hereafter be referred to as
appellants.
The complainant, Magdalena "Maggie" de la Riva, was, at the time of the incident,
25 years old and single; she graduated from high school in 1958 at Maryknoll College
and nished the secretarial course in 1960 at St. Theresa's College. Movie actress by
profession, she was receiving P8,000.00 per picture. It was part of her work to perform
in radio broadcasts and television shows, where she was paid P800.00 per month in
permanent shows, P300.00 per month in live promotional shows, and from P100.00 to
P200.00 per appearance as guest in other shows.
So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De la
Riva, homeward bound from the ABS Studio on Roxas Blvd., Pasay City, was driving her
bantam car accompanied by her maid Helen Calderon, who was also at the front seat.
Her house was at No. 48, 12th Street, New Manila, Quezon City. She was already near
her destination when a Pontiac two-door convertible car with four men aboard (later
identi ed as the four appellants) came abreast of her car and tried to bump it. She
stepped on her brakes to avoid a collision, and then pressed on the gas and swerved
her car to the left, at which moment she was already in front of her house gate; but
because the driver of the other car (Basilio Pineda, Jr.) also accelerated his speed, the
two cars almost collided for the second time. This prompted Miss De la Riva, who was
justi ably annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the car which he was
driving, jumped out of it and rushed towards her.
The girl became so frightened at this turn of events that she tooted the horn of
her car continuously. Undaunted, Pineda opened the door of Miss De la Riva's car and
grabbed the lady's left arm. The girl held on tenaciously to her car's steering wheel and,
together with her maid, started to scream. Her strength, however, proved no match to
that of Pineda, who succeeded in pulling her out of her car. Seeing her mistress'
predicament, the maid jumped out of the car and took hold of Miss De la Riva's right
arm in an effort to free her from Pineda's grip. The latter, however, was able to drag
Miss De la Riva toward the Pontiac convertible car, whose motor was all the while
running.
When Miss De la Riva, who was being pulled by Pineda, was very near the Pontiac
car, the three men inside started to assist their friend: one of them held her by the neck,
while the two others held her arms and legs. All three were now pulling Miss De la Riva
inside the car. Before she was completely in, appellant Pineda jumped unto the driver's
seat and sped away in the direction of Broadway Street. The maid was left behind.
The complainant was made to sit between Jaime Jose and Edgardo Aquino at
the back seat; Basilio Pineda, Jr. was at the wheel, while Rogelio Cañal was seated
beside him. Miss De la Riva entreated the appellants to release her; but all she got in
response were jeers, abusive and impolite language, and threats that the appellants
would nish her with their Thompson and throw acid at her face if she did not keep
quiet. In the meantime, the two men seated on each side of Miss De la Riva started to
get busy with her body: Jose put one arm around the complainant and forced his lips
upon hers, while Aquino placed his arms on her thighs and lifted her skirt. The girl tried
to resist them. She continuously implored her captors to release her, telling them that
she was the only breadwinner in the family and that her mother was alone at home and
needed her company because her father was already dead. Upon learning of the demise
of Miss De la Riva's father, Aquino remarked that the situation was much better than he
thought since no one could take revenge against them. By now Miss De la Riva was
beginning to realize the futility of her pleas. She made the sign of the cross and started
to pray. The appellants became angry and cursed her. Every now and then Aquino would
stand up and talk in whispers with Pineda, after which the two would exchange knowing
glances with Cañal and Jose.
The car reached a dead-end street. Pineda turned the car around and headed
towards Victoria Street. Then the car proceeded to Araneta Avenue, Sta. Mesa Street,
Shaw Boulevard, thence to Epifanio de los Santos Avenue. When the car reached
Makati, Aquino took a handkerchief from his pocket and, with the help of Jose,
blindfolded Miss De la Riva. The latter was told not to shout or else she would be
stabbed or shot with a Thompson. Not long after, the car came to a stop at the Swanky
Hotel in Pasay City. The blindfolded lady was led out of the car to one of the rooms on
the second floor of the hotel.
Inside the room Miss De la Riva was made to sit on bed. Her blindfold was
removed. She saw Pineda and Aquino standing in front of her, and Jose and Cañal
sitting beside her, all of them smiling meaningfully. Pineda told the complainant:
"Magburlesque ka para sa amin." The other three expressed their approval and ordered
Miss De la Riva to disrobe. The complainant ignored the command. One of the
appellants suggested putting off the light so that the complainant would not be
ashamed. The idea, however, was rejected by the others, who said that it would be more
pleasurable for them if the light was on. Miss De la Riva was told to remove her
stockings, in order, according to them, to make the proceedings more exciting.
Reluctantly, she did as directed, but so slowly did she proceed with the assigned task
that the appellants cursed her and threatened her again with the Thompson and the
acid. They started pushing Miss De la Riva around. One of them pulled down the zipper
of her dress; another unhooked her brassiere. She held on tightly to her dress to
prevent it from being pulled down, but her efforts were in vain: her dress, together with
her brassiere, fell on the floor.
The complainant was now completely naked before the four men, who were
kneeling in front of her and feasting their eyes on her private parts. This ordeal lasted
for about ten minutes, during which the complainant, in all her nakedness, was asked
twice or thrice to turn around. Then Pineda picked up her clothes and left the room with
his other companions. The complainant tried to look for a blanket with which to cover
herself, but she could not find one.
Very soon, Jose reentered the room and began undressing himself. Miss De la
Riva, who was sitting on the bed trying to cover her bareness with her hands, implored
him to ask his friends to release her. Instead of answering her, he pushed her backward
and pinned her down on the bed. Miss De la Riva and Jose struggled against each other;
and because the complainant was putting up stiff resistance, Jose cursed her and hit
her several times on the stomach and other parts of the body. The complainant
crossed her legs tightly, but her attacker was able to force them open. Jose succeeded
in having carnal knowledge of the complainant. He then left the room.
The other three took their turns. Aquino entered the room next. A struggle ensued
between him and Miss De la Riva, during which he hit her on different parts of the body.
Like Jose, Aquino succeeded in abusing the complainant. The girl was now in a state of
shock. Aquino called the others into the room. They poured water on her face and
slapped her to revive her. Afterwards, three or the accused left the room, leaving Pineda
and the complainant. After some struggle during which Pineda hit her, the former
succeeded in forcing his carnal desire on the latter. When the complainant went into a
state of shock for the second time, the three other men went into the room, again
poured water on the complainant's face and slapped her several times. The
complainant heard them say that they had to revive her so she would know what was
happening. Jose, Aquino and Pineda then left the room. It was now appellant Cañal's
turn. There was a struggle between him and Miss De la Riva. Like the other three
appellants before him, he hit the complainant on different parts of the body and
succeeded in forcing his carnal lust on her.
Mention must be made of the fact that while each of the four appellants was
struggling with the complainant, the other three were outside the room, just behind the
door, threatening the complainant with acid and telling her to give in because she could
not, after all, escape, what with their presence.
After the appellants had been through with the sexual carnage, they gave Miss De
la Riva her clothes, told her to get dressed and put on her stockings, and to wash her
face and comb her hair, to give the impression that nothing had happened to her. They
told her to tell her mother that she was mistaken by a group of men for a hostess, and
that when the group found out that she was a movie actress, she was released without
being harmed. She was warned not to inform the police; for if she did and they were
apprehended, they would simply post bail and later hunt her up and dis gure her face
with acid. The appellant then blindfolded Miss De la Riva again and led her down from
the hotel room. Because she was stumbling, she had to be carried into the car. Inside
the car, appellant Jose held her head down on his lap, and kept it in that position during
the trip, to prevent her from being seen by others.
Meanwhile, the four appellants were discussing the question of where to drop
Miss De la Riva. They nally decided on a spot in front of the Free Press Building not far
from Epifanio de los Santos Avenue near Channel 5 to make it appear, according to
them, that the complainant had just come from the studio. Pineda asked Jose to alight
and call a taxicab, but to choose one which did not come from a well-known company.
Jose did as requested, letting several taxicabs pass by before agging a UBL taxicab.
After they warned again Miss De la Riva not to inform anyone of what had happened to
her, appellant Cañal accompanied her to the taxicab. The time was a little past 6:00
o'clock. When Miss De la Riva was already inside the cab and alone with the driver,
Miguel F. Campos, she broke down and cried. She kept asking the driver if a car was
following them; and each time the driver answered her in the negative.
It was 6:30 o'clock — or some two hours after the abduction — when Miss De la
Riva reached home. Her mother, her brother-in-law Ben Suba, as well as several PC
o cers, policemen and reporters, were at the house. Upon seeing her mother, the
complainant ran toward her and said, "Mommy, Mommy, I have been raped. All four of
them raped me." The mother brought her daughter upstairs. Upon her mother's
instruction, the complainant immediately took a bath and a douche. The older woman
also instructed her daughter to douche herself two or three times daily with a strong
solution to prevent infection and pregnancy. The family doctor, who was afterwards
summoned, treated the complainant for external physical injuries. The doctor was not,
however, told about the sexual assaults. Neither was Pat. Pablo Pascual, the police
o cer who had been sent by the desk o cer, Sgt. Dimla, to the De la Riva residence
when the latter received from a mobile patrol a report of the snatching. When Miss De
la Riva arrived home from her harrowing experience, Pat. Pascual attempted to
question her, but Ben Suba requested him to postpone the interrogation until she could
be ready for it. At that time, mother and daughter were still undecided on what to do.
On the afternoon of June 28, 1967, the complainant's family gathered to discuss
what steps, if any, should be taken. After some agonizing moments, a decision was
reached: the authorities had to be informed. Thus, early on the morning of June 29,
1967, or on the fourth day after the incident, Miss De la Riva, accompanied by her
lawyer, Atty. Regina O. Benitez, and by some members of the family, went to the Quezon
City Police Department Headquarters, led a complaint and executed a statement (Exh.
"B") wherein she narrated the incident and gave descriptions of the four men who
abused her. In the afternoon of the same day, the complainant submitted herself to a
medico-internal examination by Dr. Ernesto Brion, NBI Chief Medico-Legal Officer.
During the physical examination of the complainant by Dr. Brion on June 29,
1967, Pat. Pascual was also at the NBI o ce. There he received a telephone call from
the police headquarters to the effect that one of the suspects had been apprehended.
That evening, the complainant and Pat. Pascual proceeded to the headquarters where
Miss De la Riva identi ed appellant Jaime Jose from among a group of persons inside
the O ce of the Chief of Police of Quezon City as one of the four men who abducted
and raped her. She executed another statement (Exh. "B-1") wherein she made a formal
identification of Jose and related the role played by him.
At about 9:00 o'clock of the same evening, appellant Jose executed a statement
(Exh. "I") before Pat. Marcos G. Viñas. In his statement, which was duly sworn, Jose
admitted that he knew about, and was involved in, the June 26 incident. He named the
other three appellants as his companions. Jose stated, among other things, that upon
the initiative of Pineda, he and the other three waited for Miss De la Riva to come out of
the ABS Studio; that his group gave chase to the complainant's car; that it was Pineda
who blindfolded her; and that on]y Pineda and Aquino criminally assaulted the
complainant.
After Exh. "I" was executed by Jose, an informant furnished Pat. Viñas with a
picture of appellant Edgardo Aquino. The picture was shown to Miss De la Riva, who
declared in her sworn statement (Exh. "B-3") that the man in the picture was one of her
abductors and rapists. The same picture was shown to Jose, who, in another sworn
statement (Exh. "I-1"), identified the man in the picture as appellant Aquino.
After the apprehension of Jose, the other three soon fell into the hands of the
authorities: Pineda and Cañal on July 1, 1967, in Lipa City, and Aquino on July 5, 1967, in
the province of Batangas. On the evening of July 1, 1967, Miss De la Riva pointed to
Pineda and Cañal as among the four persons who abducted and raped her. She picked
them out from among several persons in the O ce of the Chief of Police of Quezon
City. Later in the same evening, Miss De la Riva executed a sworn statement (Exh. "B-2")
wherein she made the same identi cation of the two appellants from among a group of
persons in the O ce of the Chief of the Detective Bureau, adding that appellant Cañal
had tatoo marks on his right hip. After the identi cation, one of the policemen took
appellant Cañal downstairs and undressed him, and he saw, imprinted on the said
appellant's right hip, the words "Bahala na Gang."
Appellant Cañal and Pineda executed and swore to separate statements on the
day of their arrest. In his statement (Exh. "G"), appellant Cañal con rmed the
information previously given by Jose that the four of them waited for Miss De la Riva to
come down from the ABS Studio, and that they had planned to abduct and rape her.
Appellant Cañal admitted that all four of them participated in the commission of the
crime, but he would make it appear that insofar as he was concerned the complainant
yielded her body to him on condition that he would release her. Pineda executed a
statement (Exh. "J") stating that he and his other three companions went to the ABS
Studio, and that, on learning that Miss De la Riva was there, they made plans to wait for
her and to follow her. He admitted that his group followed her car and snatched her and
took her to the Swanky Hotel. He would make it appear, however, that the complainant
voluntarily acceded to having sexual intercourse with him.
In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple
contusions and bruises on different parts of the complainant's body, as well as of
genital injuries. On the witness stand the doctor was shown several photographs of the
complainant taken in his presence and under his supervision. With the aid of the
photographs and the medical reports, the doctor explained to the court that he found
contusions or bruises on the complainant's chest, shoulders, arms and fore-arms, right
arm index nger, thighs, right knee and legs. He also declared that when he was
examining her, Miss De la Riva complained of slight tenderness around the neck, on the
abdominal wall and at the sides of the extragenital physical injuries, and that on
pressing the said injuries, he elicited a sigh of pain or tenderness on the part of the
subject. The injuries, according to Dr. Brion, could have been caused by blows
administered by a closed st or by the palm of the hand, and could have been in icted
on the subject while she was being raped. It was the doctor's opinion that they could
have been sustained on or about June 26, 1967. In connection with the genital
examination, the doctor declared that he found injuries on the subject's genitalia which
court have been produced by sexual intercourse committed on June 26, 1967. He said
that he failed to nd spermatozoa. He explained. however, that spermatozoa are not
usually found in the vagina after the lapse of three days from the last intercourse, not to
mention the possibility that the subject might have douched herself.
The three appellants who pleaded not guilty (Jose, Aquino and Cañal) took the
witness stand. We quote hereunder the portions of the decision under review relative to
the theory of the defense:
"Their story is that they and their co-accused Pineda had gone to the Ulog
Cocktail Lounge somewhere in Mabini street in Manila, and there killed time from
9:30 in the evening of June 25 until closing time, which was about 3:30 in the
early morning of the next day. At the cocktail lounge they had listened to the
music while enjoying some drinks. Between them they had consumed a whole
bottle of whisky, so much so that at least Aquino became drunk, according to his
own testimony. They had been joined at their table by a certain Frankie whom
they met only that night. Come time to go home, their new acquaintance asked to
be dropped at his home in Cubao. The ve men piled into the red-bodied, black
topped two-door convertible Plymouth (Pontiac) car of Jaime Jose, and with
Pineda at the wheel repaired to Cubao. After dislodging their new friend, Pineda
steered the car to España Extension to bring Aquino to his home in Mayon Street.
But somewhere in España Extension before the Rotonda a small car whizzed past
them almost hitting them. They saw that the driver was a woman. Pineda gave
chase and coming abreast of the small car he shouted, 'Putang ina mo, kamuntik
na kaming mamatay.' The woman continued on her way. Now Pineda saying, 'let
us teach her a lesson,' sped after her and when she swerved ostensibly to enter a
gate, Pineda stopped his car behind hers, hurriedly got down, striding to the small
car, opened the door and started dragging the girl out. Both Jose and Aquino
con rm the presence of another woman inside the girl's car, who helped the girl
struggle to get free from Pineda's grip; and that the struggle lasted about ten
minutes before Pineda nally succeeded in pushing the girl into the red
convertible. All the three accused insist they did nothing to aid Pineda; but they
also admit that they did nothing to stop him.
"Now the defense contends that Pineda cruised around and around the
area just to scare the girl who was in truth so scared that she begged them to let
her be and return her to her home. She turned to Jose in appeal, but this one told
her he could not do anything as the 'boss' was Pineda. Aquino heard her plead
with Jose 'do you not have a sister yourself?' but did not hear the other plea 'do
you not have a mother?' Then Pineda stopped at the corner of the street where he
had forcibly snatched the girl presumably to return her, but then suddenly
changing his mind he said, 'why don't you do a strip tease for us. I'll pay you
P1,000.00' and the girl taunted, 'are you kidding?'; that after a little while she
consented to do the performance as long as it would not last too long and
provided the spectators were limited to the four of them.
"Pineda sped the car until they got to Swanky Hotel where he and Maggie
alighted rst, but not before Maggie had borrowed a handkerchief from one of
them to cover her face as she went up the Hotel. The three followed, and when
they saw the pair enter a room, they quickly caught up. All the three accused
testify that as soon as they got into the room, Maggie de la Riva asked the boys
to close the windows before she undressed in front of them. They themselves
also removed their clothing. Two of them removed their pants retaining their
briefs, while Boy Pineda and Cañal stripped to the skin 'because it was hot.' The
three accused declared that they saw Boy Pineda hand P100.00 to Maggie and
they heard him promise her that he would pay the balance of P900.00 later.
Whereupon, the show which lasted about 10 minutes began with the naked girl
walking back and forth the room about 4 to 5 times. This accomplished all of
them dressed up once more and the three accused (Jaime Jose, Eduardo Aquino
and Rogelio Cañal) left the room to wait in the car for Boy Pineda and Maggie de
la Riva who were apparently still discussing the mode of payment of the balance.
Three minutes later Maggie de la Riva and Boy Pineda joined them. Now, the
question of how and where to drop Maggie came up and it is testi ed to by the
accused that it was Maggie's idea that they should drop her near the ABS Studio
so that it would appear as if she had just come from her work.
"Jaime Jose was picked by the police on the morning of June 29 along
Buendia Avenue. Aquino testi es how, on June 29 Pineda went to him with a
problem. He did not have the P900.00 with which to pay Maggie the balance of
her 'show' and he was afraid that if he did not pay, Maggie would have her goons
after him. He wanted Aquino to go with him to Lipa City where he had relatives
and where he could help raise the money. Aquino readily obliged, and to make the
company complete they invited Cañal to join them. They used another car of
Jaime Jose, different from the one they had used the day before. At Lipa, Aquino
detached himself from his companions and proceeded alone to the barrio
allegedly to visit his relatives. In the meantime his two companions had remained
in the City and had, according to Cañal, gone to live in a house very close to the
municipal hall building. They later moved to another house where the PC and
Quezon City police posse found and arrested them. Aquino was the last to be
apprehended, when having read in the newspapers that he was wanted, he
surrendered on July 5 to Mrs. Aurelia Leviste, wife of the governor of Batangas."
The striptease-act-for-a-fee story on which the defense theory is anchored,

de es one's credulity and reason, and had failed utterly to counteract the evidence for
the prosecution, particularly the complainant's testimony and Dr. Brion's medical report
and testimony. We quote with approval the able dissertation of the trial judge on this
point:
"As main defense in the charge of rape, the three accused advance the
proposition that nothing happened in Swanky Hotel except a strip-tease exhibition
which the complainant agreed to do for them for a fee of P1,000.00, P100.00
down and the balance to be paid 'later.' The aw in this contention lies in its utter
inverisimilitude. The Court cannot believe that any woman exists, even one
habitually engaged in this kind of entertainment (which Maggie de la Riva has not
been proven to be) who would consent (and as easily and promptly as defense
claims) to do a performance, not even for all money in the world after the rough
handling she experienced from these wolves in men's clothing who now hungered
for a show. There is no fury to match a woman stirred to indignation. A woman's
pride is far stronger than her yen for money, and her revenge much more keen.
The Court cannot believe that after the rudeness and meanness of these men to
her, Maggie would in so short an internal of time forget her indignation and so
readily consent to satisfy their immoral curiosity about her. The woman in her
would urge her to turn the men's hankering as a weapon of revenge by denying
them their pleasure.
"Besides, the manner of payment offered for the performance is again

something beyond even the wildest expectations. Assuming that the woman
whom the accused had abducted was in this kind of trade and assuming that the
price offered was to her satisfaction, what woman would be willing to perform
rst and be paid later? It is simply preposterous to believe that Maggie de la Riva
should have consented to do a strip-tease act for a measly down-payment of
P100.00 and the balance to be paid God knows when. Since when are expositions
of the esh paid on installment basis? By the very precarious nature of their
pitiful calling, women who sell their attractions are usually very shrewd and it is to
be expected that they would demand full payment before curtain call. How was
Maggie to collect later when she did not even know who these men were, where
they lived, whether they could be trusted with a promise to pay later (!) whether
she would ever nd them again? If there is anything that has struck the Court
about the complainant, it is her courage, her intelligence and her alertness. Only a
stupid woman, and a most stupid one at that, could have been persuaded to do
what the defense wants this Court to believe Maggie de la Riva consented to do.
"Finally, it is odd that not one of these men should have mentioned this
circumstance during their interviews with anyone, either the press, their police
interrogator, the persons who negotiated their surrender (as in the case of Aquino)
or even their counsel. One cannot escape the very strong suspicion that this story
is a last ditch, desperate attempt to save the day for the accused. It truly
underscores the hopelessness of their stand and projects all the more clearly their
guilt.
"Then there is the incident of the men's stripping themselves. Why was
there need for this? The Court realizes that in its desperate need of an explanation
for Maggie's positive identi cation of Cañal as the man with a tatoo mark on his
right buttock, the defense concocted the sickeningly indecent story that the four
men removed their underclothing in the presence of a woman simply 'because it
was hot.' What kind of men were these who were so devoid of any sense of
decency that they thought nothing of adding insult to injury by not only inducing
a woman to strip before them, but of forcing her to perform before a naked
audience? And then they have the gall to argue that 'nothing' happened. For
males of cold and phlegmatic blood and disposition it could be credible, but not
for men of the torrid regions like ours where quick passions and hot tempers are
the rule rather than the exception!.
"All of these considerations set aside, notwithstanding, it is quite obvious
that the version of the defense has not been able to explain away a very vital
piece of evidence of the prosecution which, if unexplained, cannot but reduce any
defense unavailing. The result of the physical (external and internal) examination
conducted on the person of Maggie de la Riva in the afternoon of June 29, the
pertinent ndings of which are quoted earlier in this decision, establish beyond
doubt that at the time that Maggie de la Riva was examined she bore on her body
traces of physical and sexual assault.
"The only attempt to an explanation made by the defense is either one of

the following: (1) the insinuation that when Maggie de la Riva and Boy Pineda
were left behind in the hotel room the bruises and the sexual attack could have
taken place then. But then, the defense itself says that these two persons rejoined
the other three after three or four minutes! It is physically impossible, in such a
short time, for Boy Pineda to have attacked the girl and in icted on her all of
these injuries; (2) it was suggested by the defense that Maggie de Riva could have
in icted all of those injuries upon herself just to make out a case against the
accused. The examining physician rules out this preposterous proposition, verily it
does not take much stretch of the imagination to see how utterly impossible this
would be, and for what purpose? Was P900.00 which she had failed to collect
worth that much self-torture? And what about all the shame, embarrassment and
publicity she would (as she eventually did) expose herself to? If she really had not
been raped would she have gone thru all of these tribulations?
"A woman does not easily trump up rape charges for she has much more
to lose in the notoriety the case will reap for her, her honor and that of her family,
than in the redress she demands (Canastre, 82-480; Medina, C.A. 1943 O.G. 151;
Medina y Puno, CA O. G. 338; CA 55 O. G. 7666; Galamiton, L-6302, August 25,
1954); (3) it could also be argued that the contusions and bruises could have
been in icted on Maggie during her struggle with Pineda when the latter pulled
and pushed her into the red convertible car. The telltale injuries, however, discount
this possibility, for the location in which many of the bruises and traumas were
located (particularly on the inner portion of her thighs) could not have been
caused by any struggle save by those of a woman trying to resist the brutal and
bestial attack on her honor.
"In their Memorandum the accused contend that Maggie's sole and
uncorroborated testimony should not be rated any credence at all as against the
concerted declaration of the three accused. In the rst place, it is not correct to
say that Maggie's declaration was uncorroborated — she has for corroboration
nothing less than the written extra-judicial statements of Jose and Cañal. But
even assuming that Maggie stood alone in her statements, the cases cited by the
accused in their Memorandum notwithstanding which the Court does not
consider in point anyway, jurisprudence has con rmed the ruling that numbers is
the least vital element in gauging the weight of evidence. What is more important
is which of the declarations is the more credible, the more logical, the more
reasonable, the more prone to be biased or polluted. (Ricarte 44 OG 2234; Damian
CA-GR No. 25523, April 24, 1959). Besides, it should be borne in mind that in the
most detestable crime of rape in which a man is at his worst the testimony of the
offended party most often is the only one available to prove directly its
commission and that corroboration by other eyewitnesses would in certain cases
place a serious doubt as to the probability of its commission, so that courts of
justice are most often placed in a position of having to accept such
uncorroborated testimony if the same is in other regards conclusive, logical and
probable (Landicho, VIII ACE 530)."
We shall now consider the points raised by the appellants in their briefs.
1. Appellants Jose, Aquino and Cañal deny having had anything to do with the
abduction of Miss De la Riva. They point to Pineda (who entered a plea of guilty) as the
sole author thereof, but they generously contend that even as to him the act was
purged of any taint of criminality by the complainant's subsequent consent to perform
a striptease show for a fee, a circumstance which, it is claimed, negated the existence
of the element of lewd design. This line of defense has evidently no leg to stand on. The
evidence is clear and overwhelming that all the appellants participated in the forcible
abduction. Miss De la Riva declared on the witness stand, as well as in her sworn
statements, that they helped one another in dragging her into the car against her will;
that she did not know them personally; that while inside the car, Jose and Aquino,
between whom she was seated, toyed with her body, the farmer forcing his lips on hers,
and the latter touching her thighs and raising her skirt; that meaningful and knowing
glances were in the meanwhile being exchanged among the four; and that all of them
later took turns in ravishing her at the Swanky Hotel. This testimony, whose evidentiary
weight has not in the least been overthrown by the defense, more than su ces to
establish the crimes charged in the amended complaint. In the light thereof, appellants'
protestation that they were not motivated by lewd designs must be rejected as
absolutely without factual basis.
2. The commission of rape by each of the appellants has, as held by the court
below, likewise been clearly established Jose, Aquino and Cañal contend that the
absence of semen in the complainant's vagina disproves the fact of rape. The
contention is untenable. Dr. Brion of the NBI, who testi ed as an expert, declared that
semen is not usually found in the vagina after three days from the last intercourse,
especially if the subject has douched herself within that period. In the present case, the
examination was conducted on the fourth day after the incident, and the complainant
had douched herself to avoid infection and pregnancy. Furthermore, the absence of
spermatozoa does not disprove the consummation of rape, the important
consideration being, not the emission of semen, but penetration (People vs. Hernandez,
49 Phil., 980). Aquino's suggestion that the abrasions on the cervix were caused by the
tough tip of a noozle deliberately used by the complainant to strengthen her alleged
fabricated tale of rape, is absurd, if not cruel. It is di cult to imagine that any sane
woman, who is single and earning as much as Miss De la Riva did, would in ict injuries
on her genital organ by puncturing the same with a sharply-pointed instrument in order
to strike back at four strangers who allegedly would not pay her the sum of P900.00
due her for a strip-tease act. Besides, Dr. Brion testi ed that the insertion of such an
instrument in the genital organ would not result in the kind of injuries he found in the
mucosa of the cervix.
3. Other evidence and considerations exist which indubitably establish the
commission of successive rapes by the four appellants. Upon Miss De la Riva's arrival
at her house in the morning of June 26, 1967, she immediately told her mother,
"Mommy, Mommy, I have been raped. All four of them raped me." This utterance, which
is part of the res gestae, commands strong probative value, considering that it was
made by the complainant to her mother who, in cases of this nature, was the most
logical person in whom a daughter would con de the truth. Aquino and Cañal would
make capital of the fact that Miss De la Riva stated to the reporters on the morning of
June 26, that she was not abused. Her statement to the press is understandable. At
that time the complainant, who had not yet consulted her family on a matter which
concerned her reputation as well as that of her family, and her career, was not then in a
position to reveal publicly what had happened to her. This is one reason why the
complainant did not immediately inform the authorities of the tragedy that befell her.
Another reason is that she was threatened with dis guration. And there were, of course,
the traumas found by Dr. Brion on different parts of the complainant's body. Could they,
too, have been self-in icted? Or, as suggested, could they possibly have been in icted
by appellant Pineda alone, when the story given by the other three is that Pineda and the
complainant were left in the hotel room for only three or four minutes, and that they
came out to join them in what they would picture to be a cordial atmosphere, the
complainant even allegedly suggesting that she be dropped on a spot where people
would reasonably presume her to have come from a studio? Equally important is the
complainant's public disclosure of her tragedy, which led to an examination of her
private parts and lay her open to risks of future public ridicule and diminution of
popularity and earnings as a movie actress.
4. Jose and Cañal seek the exclusion of their extra-judicial statements from
the mass of evidence on the grounds that they were secured from them by force and
intimidation, and that the incriminating details therein were supplied by the police
investigators. We are not convinced that the statements were involuntarily given, or that
the details recited therein were concocted by the authorities. The statements were
given in the presence of several people and subscribed and sworn to before the City
Fiscal of Quezon City, to whom neither of the aforesaid appellants intimated the use of
inordinate methods by the police. They are replete with details which could hardly be
known to the police; and although it is suggested that the authorities could have
secured such details from their various informers, no evidence at all was presented to
establish the truth of such allegation. While in their statements Jose and Cañal
admitted having waited — together with the two other appellants — for Miss De la Riva
at the ABS Studio, each of them attempted in the same statements to exculpate
himself: appellant Jose stated that only Pineda and Aquino criminally abused the
complainant; while appellant Cañal would make it appear that the complainant willingly
allowed him to have sexual intercourse with her. Had the statements been prepared by
the authorities, they would hardly have contained matters which were apparently
designed to exculpate the a ants. It is signi cant, too, that the said two appellants did
not see it t to inform any of their friends or relatives of the alleged use of force and
intimidation by the police. Dr. Mariano Nario of the Quezon City Police Department, who
examined appellant Cañal after the latter made his statement, found no trace of injury
on any part of the said appellant's body in spite of the claims that he was boxed on the
stomach and that one of his arms was burned with a cigarette lighter. In the
circumstances, and considering, further, that the police o cers who took down their
statements categorically denied on the witness stand that the two appellants were
tortured, or that any detail in the statements was supplied by them or by anyone other
than the a ants themselves, We see no reason to depart from the trial court's well-
considered conclusion that the statements were voluntarily given. However, even
disregarding the in-custody statements of Jose and Cañal, We nd that the mass of
evidence for the prosecution on record will suffice to secure the conviction of the two.
The admissibility of his extrajudicial statements is likewise being questioned by
Jose on the other ground that he was not assisted by counsel during the custodial
interrogations. He cites the decisions of the Supreme Court of the United States in
Messiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (378 U.S. 478) and Miranda vs.
Arizona (384 U.S. 436).
The provision of the Constitution of the Philippines in point is Article III (Bill of
Rights), Section 1, par. 17 of which provides: "In all criminal prosecutions the accused
shall . . . enjoy the right to be heard by himself and counsel . . ." While the said provision
is identical to that in the Constitution of the United States, in this jurisdiction the term
criminal prosecutions was interpreted by this Court, in U.S. vs. Beecham, 23 Phil., 258
(1912), in connection with a similar provision in the Philippine Bill of Rights (Section 5
of Act of Congress of July 1, 1902) to mean proceedings before the trial court from
arraignment to rendition of the judgment. Implementing the said constitutional
provision, We have provided in Section 1, Rule 115 of the Rules of Court that "In all
criminal prosecutions the defendant shall be entitled . . . (b) to be present and defend in
person and by attorney at every stage of the proceedings, that is, from the arraignment
to the promulgation of the judgment." The only instances where an accused is entitled
to counsel before arraignment, if he so requests, are during the second stage of the
preliminary investigation (Rule 112, Section 11) and after the arrest (Rule 113, Section
18). The rule in the United States need not be unquestioningly adhered to in this
jurisdiction, not only because it has no binding effect here, but also because in
interpreting a provision of the Constitution the meaning attached thereto at the time of
the adoption thereof should be considered. And even there the said rule is not yet quite
settled, as can be deduced from the absence of unanimity in the voting by the members
of the United States Supreme Court in all the three above-cited cases.
5. Appellant Pineda claims that insofar as he is concerned there was a
mistrial resulting in gross miscarriage of justice. He contends that because the charge
against him and his co-appellants is a capital offense and the amended complaint cited
aggravating circumstances, which, if proved, would raise the penalty to death, it was the
duty of the court to insist on his presence during all stages of the trial. The contention
is untenable. While a plea of guilty is mitigating, at the same time it constitutes an
admission of all the material facts alleged in the information, including the aggravating
circumstances, and it matters not that the offense is capital, for the admission (plea of
guilty) covers both the crime and its attendant circumstances qualifying and/or
aggravating the crime (People vs. Boyles, et al., L-15308, May 29, 1964, citing People
vs. Ama, 1-14783, April 29, 1961, and People vs. Parete, L-15515, April 29, 1961).
Because of the aforesaid legal effect of Pineda's plea of guilty, it was not incumbent
upon the trial court to receive his evidence, much less to require his presence in court. It
would be different had appellant Pineda requested the court to allure him to prove
mitigating circumstances, for then it would be the better part of discretion on the part
of the trial court to grant his request. (Cf. People, vs. Arconado, L-16175, February 28,
1962.) The case of U.S. vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for
there this Court ordered a new trial because it found for a fact that the accused, who
had pleaded guilty, "did not intend to admit that he committed the offense with the
aggravating circumstances" mentioned in the information. We are not in a position to
make a similar nding here. The transcript of the proceedings during the arraignment
shows that Pineda's counsel, Atty. Lota, prefaced his client's plea of guilty with the
statement that
"I have advised him (Pineda) about the technicalities in plain simple
language of the contents of aggravating circumstances and apprised him of the
penalty he would get, and we have given said accused time to think. After a while
I consulted him — for three times — and his decision was still the same."
Three days after the arraignment, the same counsel stated in court that he had always
been averse to Pineda's idea of pleading guilty, because "I know the circumstances
called for the imposition of the maximum penalty considering the aggravating
circumstances," but that he acceded to his client's wish only after the scal had stated
that he would recommend to the court the imposition of life imprisonment on his client.
To be sure, any such recommendation does not bind the Court. The situation here,
therefore, is far different from that obtaining in U.S. vs. Agcaoili, supra.
6. Two of the appellants — Jose and Cañal — bewail the enormous publicity
that attended the case from the start of investigation to the trial. In spite of the said
publicity, however, it appears that the court a quo was able to give the appellants a fair
hearing. For one thing, three of the seven (7) original accused were acquitted. For
another thing, Jose himself admits in his brief that the Trial Judge "had not been
in uenced by adverse and unfair comments of the press, unmindful of the rights of the
accused to a presumption of innocence and to fair trial."
We are convinced that the herein four appellants have conspired together to
commit the crimes imputed to them in the amended information quoted at the
beginning of this decision. There is no doubt at all that the forcible abduction of the
complainant from in front of her house in Quezon City, was a necessary if not
indispensable means which enabled them to commit the various and successive acts
of rape upon her person. It bears noting, however, that even while the rst act of rape
was being performed, the crime of forcible abduction had already been consummated,
so that each of the three succeeding crimes of the same nature can not legally be
considered as still connected with the abduction — in other words, they should be
detached from, and considered independently of, that of forcible abduction and,
therefore, the former can no longer be complexed with the latter.
What kind of rape was committed? Undoubtedly, it is that which is punishable by
the penalty of reclusion perpetua to death, under paragraph 3, Article 335, as amended
by Republic Act No. 4111 which took effect on June 20, 1964, and which provides as
follows:
"ART. 335. When and how rape committed. — Rape is committed by
having carnal knowledge of a woman under any of the following circumstances:
"1. By using force or intimidation;
"2. When the woman is deprived of reason or otherwise unconscious;

and
"3. When the woman is under twelve years of age, even though neither
of the circumstances mentioned in the two next preceding paragraphs shall be
present.
"The crime of rape shall be punished by reclusion perpetua.

"Whenever the crime of rape is committed with the use of a deadly weapon
or by two or more persons, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
"When the rape is attempted or frustrated and a homicide is committed by
reason or on the occasion thereof, the penalty shall be likewise death.
"When by reason or on the occasion of the rape, a homicide is committed,

the penalty shall be death."
As regards, therefore, the complex crime of forcible abduction with rape, the rst
of the crimes committed, the latter is definitely the more serious; hence, pursuant to the
provision of Art. 48 of the Revised Penal Code, the penalty prescribed shall be imposed
in its maximum period. Consequently, the appellants should suffer the extreme penalty
of death. In this regard, there is hardly any necessity to consider the attendance of
aggravating circumstances, for the same would not alter the nature of the penalty to be
imposed.
Nevertheless, to put matters in their proper perspective and for the purpose of
determining the proper penalty to be imposed in each of the other three crimes of
simple rape, it behooves Us to make a de nite nding in this connection to the effect
that the commission of said crimes was attended with the following aggravating
circumstances: (a) nighttime, appellants having purposely sought such circumstance to
facilitate the commission of these crimes; (b) abuse of superior strength, the crime
having been committed by the four appellants in conspiracy with one another (Cf.
People vs. De Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the appellants in
ordering the complainant to exhibit to them her complete nakedness for about ten
minutes, before raping her, brought about a circumstance which tended to make the
effects of the crime more humiliating; and (d) use of a motor vehicle. With respect to
appellants Jose, Aquino and Cañal, none of these aggravating circumstances has been
offset by any mitigating circumstance. Appellant Pineda should, however, be credited
with the mitigating circumstance of voluntary plea of guilty, a factor which does not in
the least affect the nature of the proper penalties to be imposed, for the reason that
there would still be three aggravating circumstances remaining. As a result, appellants
should likewise be made to suffer the extreme, penalty of death in each of these three
simple crimes of rape. (Art. 63, par. 2, Revised Penal Code.).
In refusing to impose as many death penalties as there are offenses committed,
the trial court applied by analogy Article 70 of the Revised Penal Code, which provides
that "the maximum duration of all the penalties therein imposed upon the appellant
shall not be more than three-fold the length of time corresponding to the most severe
of the penalties imposed upon the appellant, which should not exceed forty years." The
said court is of the opinion that since a man has only one life to pay for a wrong, the
ends of justice would be served, and society and the victim would be vindicated just as
well, if only one death penalty were imposed on each of the appellants.
We cannot agree with the trial court. Article 70 of the Revised Penal Code can
only be taken into account in connection with the service of the sentence imposed, not
in the imposition of the penalty (People vs. Escares, 55 Off. Gaz., 623). In holding that
only one death penalty should be imposed because man has only one life, the trial court
ignored the principle enunciated in the very case it cited, namely, U.S. vs. Balaba, 37
Phil., 260, where this Court, in a rming the judgment of the trial court, found the
accused guilty of two murders and one homicide and imposed upon him two death
sentences for the murders and a prison term for the homicide. In not applying the said
principle, the court a quo said that the case of Balaba is different from the present case,
for while in the former case the accused was found to have committed three distinct
offenses, here only one offense is charged, even if complex. As We have explained
earlier herein, four crimes were committed, charged and proved. There is, therefore, no
substantial difference between the two cases insofar as the basic philosophy involved
is concerned, for the fact remains that in the case of Balaba this Court did not hesitate
to a rm the two death sentences imposed on the accused by the trial court. In People
vs. Peralta, et al., L-19060, October 29, 1968, in which this Court imposed on each of
the six accused three death penalties for three distinct and separate crimes of murder,
We said that "since it is the settled rule that once conspiracy is established, the act of
one conspirator is attributable to all, then each conspirator must be held liable for each
of the felonious acts committed as a result of the conspiracy, regardless of the nature
and severity of the appropriate penalties prescribed by law." In the said case (which
was promulgated after the decision of the court a quo had been handed down) We had
occasion to discuss at length the legality and practicality of imposing multiple death
penalties, thus:
"The imposition of multiple death penalties is decried by some as a
useless formality, an exercise in futility. It is contended, undeniably enough, that a
death convict, like all mortals, has only one life to forfeit. And because of this
physiological and biological attribute of man, it is reasoned that the imposition of
multiple death penalties is impractical and futile because after the service of one
capital penalty, the execution of the rest of the death penalties will naturally be
rendered impossible. The foregoing opposition to the multiple imposition of death
penalties suffers from four basic aws: (1) it fails to consider the legality of
imposing multiple capital penalties; (2) it fails to distinguish between imposition
of penalty and service of sentence; (3) it ignores the fact that multiple death
sentences could be served simultaneously; and (4) it overlooks the practical
merits of imposing multiple death penalties.
"The imposition of a penalty and the service of a sentence are two distinct,
though related, concepts. The imposition of the proper penalty or penalties is
determined by the nature, gravity and number of offenses charged and proved,
whereas service of sentence is determined by the severity and character of the
penalty or penalties imposed. In the imposition of the proper penalty or penalties,
the court does not concern itself with the possibility or practicality of the service
of the sentence, since actual service is a contingency subject to varied factors like
the successful escape of the convict, grant of executive clemency or natural death
of the prisoner. All that go into the imposition of the proper penalty or penalties, to
reiterate, are the nature, gravity and number of the offenses charged and proved
and the corresponding penalties prescribed by law.
"Multiple death penalties are not impossible to serve because they will
have to be executed simultaneously. A cursory reading of article 70 will show that
there are only two moves of serving two or more (multiple) penalties:
simultaneously or successively. The rst rule is that two or more penalties shall
be served simultaneously if the nature of the penalties will so permit. In the case
of multiple capital penalties, the nature of said penal sanctions does not only
permit but actually necessitates simultaneous service.
"The imposition of multiple death penalties, far from being a useless
formality, has practical importance. The sentencing of an accused to several
capital penalties is an indelible badge of his extreme criminal perversity, which
may not be accurately projected by the imposition of only one death sentence
irrespective of the number of capital felonies for which he is liable. Showing thus
the reprehensible character of the convict in its real dimensions, the possibility of
a grant of executive clemency is justi ably reduced in no small measure. Hence,
the imposition of multiple death penalties could effectively serve as a deterrent to
an improvident grant of pardon or commutation. Faced with the utter delinquency
of such a convict, the proper penitentiary authorities would exercise judicious
restraint in recommending clemency or leniency in his behalf.
"Granting, however, that the Chief Executive, in the exercise of his

constitutional power to pardon (one of the presidential prerogatives which is
almost absolute) deems it proper to commute the multiple death penalties to
multiple life imprisonments, then the practical effect is that the convict has to
serve the maximum forty (40) years of multiple life sentences. If only one death
penalty is imposed, and then is commuted to life imprisonment, the convict will
have to serve a maximum of only thirty years corresponding to a single life
sentence."
We are, therefore, of the opinion that in view of the existence of conspiracy among them
and of our nding as regards the nature and number of the crimes committed, as well
as of the presence of aggravating circumstances, four death penalties should be
imposed in the premises.
xxx xxx xxx
Before Us is a petition for intervention led by Filipinas Investment & Finance
Corporation asking for reversal of that portion of the judgment of the court below
ordering the con scation of the car used by the appellants in abducting the
complainant. The aforesaid car is a 1965 two-door Pontiac sedan with Motor No. WT-
222410, Serial No. 2376752110777, Plate No. H-33284, File No. 11584171, alleged by
the intervenor to be in the custody of Major Ernesto San Diego of the Quezon City
Police Department. The car is registered in the name of Mrs. Dolores Gomez.
On April 4, 1967, Mrs. Dolores Gomez, mother of appellant Jaime G. Jose, bought
the car from the Malayan Motors Corporation and simultaneously executed a chattel
mortgage thereon to secure payment of the purchase price of P13,200, which was
stipulated to be payable in 24 monthly installments of P550 beginning May 4, 1967 up
to April 4, 1969. The mortgage was duly registered with the Land Transportation
Commission and inscribed in the Chattel Mortgage Registry. The mortgage lien was
annotated on the motor registration certi cate. On April 17, 1967, for value received
and with notice to Mrs. Gomez, the Malayan Motors Corporation assigned its credit
against Mrs. Gomez, as well as the chattel mortgage, to the intervenor. The assignment
was duly registered with the Land Transportation Commission and annotated on the
registration certificate.
Mrs. Gomez failed to pay any of the installments due, in view of which the
intervenor led on July 5, 1967, an action for replevin against her (Civil Case No. 69993,
Court of First Instance of Manila) as a preliminary step to foreclosure of the chattel
mortgage. On July 7, 1967, the court issued an order for the seizure of the car. The
sheriff, however, could not enforce the writ of replevin because the car was not in Mrs.
Gomez' possession, the same having been used by her son, appellant Jaime G. Jose,
together with the other appellants in this case, in the abduction of Miss De la Riva, as a
result of which the car was seized by the Quezon City police and placed in the custody
of Major San Diego, who refused to surrender it to the sheriff on the ground that it
would be used as evidence in the trial of the criminal case.
During the pendency of that criminal case in the court below, or on July 26, 1967,
the intervenor led with the said court a petition for intervention. The said petition was
not, however, acted upon. On October 2, 1967, the trial court rendered its judgment in
the present case ordering the car's con scation as an instrument of the crime.
Although not noti ed of the said decision, the intervenor led, on October 17, 1967, a
motion for reconsideration of the order of con scation; but the same was denied on
October 31, 1967, on the ground that the trial court had lost jurisdiction over the case in
view of the automatic elevation thereof to this Court. The intervenor then led a petition
for relief from judgment, but the same was also denied.
On February 5, 1968, judgment was rendered in the replevin case ordering Mrs.
Gomez to deliver the car to the intervenor so that the chattel mortgage thereon could
be foreclosed, or, in the alternative, to pay the intervenor the sum of P13,200 with
interest thereon at 12% per annum from July 5, 1968, the premium bond, attorney's
fees, and the costs of suit. The judgment became nal and executory. Attempts to
execute the judgment against the properties of Mrs. Gomez were unavailing; the writ of
execution was returned by the sheriff unsatis ed. On July 26, 1968, the present petition
for intervention was led with this Court, which allowed the intervenor to le a brief. In
his brief the Solicitor General contends, among others, that the court a quo having
found that appellant Jose is the owner of the car, the order of confiscation is correct.
Considering that the car in question is registered in the name of Mrs. Dolores
Gomez, who, in the absence of strong evidence to the contrary, must be considered as
the lawful owner thereof; that the only basis of the court a quo in concluding that the
said car belongs to appellant Jose were the latter's statements during the trial of the
criminal case to that effect; that the said statements were not, however, intended to be,
nor could constitute, a claim of ownership over the car adverse to his mother, but were
made simply in answer to questions propounded in court for the sole purpose of
establishing the identity of the defendant who furnished the car used by the appellants
in the commission of the crime; that the chattel mortgage on the car and its
assignment in favor of the intervenor were made several months before the date of the
commission of the crimes charged, which circumstance forecloses the possibility of
collusion to prevent the State from con scating the car; that the nal judgment in the
replevin case can only be executed by delivering the possession of the car to the
intervenor for foreclosure of the chattel mortgage; and that Article 45 of the Revised
Penal Code bars the con scation and forfeiture of an instrument or tool used in the
commission of the crime if such "be the property of a third person not liable for the
offense," it is the sense of this Court that the order of the court below for the
con scation of the car in question should be set, aside and that the said car should be
ordered delivered to the intervenor for foreclosure as decreed in the judgment of the
Court of First Instance of Manila in the replevin case, Civil Case No. 69993.
xxx xxx xxx

Before the actual promulgation of this decision, this Court received a formal
manifestation on the part of the Solicitor General to the effect that Rogelio Cañal, one
of the herein appellants, died in prison on December 28, 1970. As a result of this
development, this case is hereby dismissed as to him alone, and only insofar as his
criminal liability is concerned, with one-fourth (1/4) of the costs declared de oficio.
WHEREFORE, the judgment under review is hereby modi ed as follows:
appellants Jaime G. Jose, Basilio Pineda, Jr., and Edgardo P. Aquino are pronounced
guilty of the complex crime of forcible abduction with rape, and each and every one of
them is likewise convicted of three (3) other crimes of rape. As a consequence thereof,
each of them is hereby sentenced to four (4) death penalties; all of them shall, jointly
and severally, indemnify the complainant in the sum of P10,000.00 in each of the four
crimes, or a total of P40,000; and each shall pay one-fourth (1/4) of the costs.
Insofar as the car used in the commission of the crime is concerned, the order of
the court a quo for its con scation is hereby set aside; and whoever is in custody
thereof is hereby ordered to deliver its possession to intervenor Filipinas Investment &
Finance Corporation in accordance with the judgment of the Court of First Instance of
Manila in Civil Case No. 69993 thereof.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando,
Villamor and Makasiar, JJ., concur.
Teehankee, J., took no part.
Barredo, J., did not take part.

EN BANC
[G.R. No. L-50276. January 27, 1983.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. MICHAEL J.

BUTLER , accused-appellant.

Manuel B. Tomacruz for appellant in collaboration with Atty. Ela..
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; TRIAL COURT IN A

BETTER POSITION TO ASSESS AND OBSERVE DEMEANOR AND MANNER OF
TESTIMONY; FINDINGS AND CONCLUSIONS THEREON GENERALLY NOT DISTURBED
ON APPEAL. — The rule is well-established that the ndings and conclusions of the trial
court on the credibility of the witnesses are matters that are left mainly to its discretion
because it is the trial court which observed the demeanor and the manner of testimony
of the witnesses and, therefore, the trial court is in a better position to assess the same
than the appellate court. As a matter of established jurisprudence, the ndings of the
trial court on the credibility of a witness are not disturbed on appeal unless there is a
showing that it failed to consider certain facts and circumstances which would change
the same. (People vs. Molledo, L-24348, Nov. 21, 1978, 86 SCRA 66)
2. ID.; ID.; CONFESSION TAKEN DURING CUSTODIAL INVESTIGATION;
CONSTITUTIONAL RIGHTS TO HAVE COUNSEL AND TO REMAIN SILENT WAIVED
VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY IN WRITING, ADMISSIBLE;
MIRANDA DOCTRINE NOT APPLICABLE. — The Miranda Doctrine does not apply in this
case as the accused had already waived his right to remain silent and to counsel after
he was duly informed of said rights by his investigators. The Court is not persuaded by
the claim of the accused as there is no reliable evidence to support it except his naked
testimony that he was threatened and coerced, which allegation was contradicted and
negatived by the fact that he signed and initialed each and every page of Exhibit H,
showing no signs of tremor as a result of the maltreatment, threats or coercion. The
naked denial of the accused regarding the preparation of Exhibit H cannot overwhelm
the true and positive testimonies of the prosecution witnesses James Robert Beaver
and James Creaturo, James Cox and Jerry Witt as there appears go visible indication
for his fellow Americans to fabricate their declarations and testify falsely against the
accused. Besides, it is a well-settled rule that in weighing con icting testimonies,
greater weight must be generally given to the positive testimonies of the witnesses, for
the prosecution than the denials of the accused.
3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; ABUSE OF SUPERIOR
STRENGTH; GUIDELINE IN THE DETERMINATION THEREOF. — In People vs. Bustos, 51
Phil. 385, the Court held that to be properly appreciated, it must be shown that the
accused is physically stronger than the victim or the relative strength of the parties
must be proved. In People vs. Casillar, 30 SCRA 352, it was held that the essence of this
circumstance is that advantage is taken by the offender of this physical strength which
is relatively superior to that of the offended party. The fact that the offender is strong
does not of itself prove its existence (People vs. Apduhan, 24 SCRA 798), and in People
vs. Cabiling, a guideline to determine whether or not there is abuse of superior strength,
the rule has been laid down that to take advantage of superior strength means to
purposely use excessive force out of proportion to the means of defense available to
the person attacked. This circumstance should always be considered whenever there is
notorious inequality of forces between aggressor, assuming a situation of superiority
of strength notoriously advantageous for the aggressor selected or taken advantage of
by him in the commission of the crime. To properly appreciate it, not only is it
necessary to evaluate the physical conditions of the protagonists or opposing forces
and the arms or objects employed by both sides, but it is also necessary to analyze the
incidents and episodes constituting the total development of the event (People vs.
Cabiling, 74 SCRA 285, pp. 303-304).
4. ID.; ID.; ID.; APPRECIATED IN THE CASE AT BAR. — This Court holds that there
was an abuse of superior strength attending the commission of the crime. It is not only
the notorious advantage of height that the accused had over his hapless victim, he
being 6 feet tall and weighing 155 lbs. while the girl was only 4 ft. 11 inches tall, but
also his strength which he wielded in striking her with the gurine on the head and in
shoving her head and pressing her mouth and nose against the bed mattress, which
pressure must have been very strong and powerful to suffocate her to death and
without risk to himself in any manner or mode whatsoever that she may have taken or
defend herself or retaliate since she was already struck and helpless on the bed, that
convinced Us to nd and rule that the crime committed is murder with the qualifying
circumstance of abuse of superior strength.
5. ID.; AGGRAVATING CIRCUMSTANCE; TREACHERY. ABSENCE OF. — The
evidence on record. however, is not su cient to show clearly and prove distinctly that
treachery attended the commission of the crime since there was no eyewitness
account of the killing. The extrajudicial confession of the accused merely stated, thus: "I
thought she was going to do something dangerous to me so I grabbed her, and we
started wrestling on the bed. She grabbed me by the throat and I picked up a statue of
Jesus Christ that was sitting on the bedside stand and I hit her in the head. She fell at
on her face." Although the gurine was found broken beside her head, the medical
report, however, do not show any injury or fracture of the skull and no sign of
intracranial hemorrhage.
6. ID.; ID.; OUTRAGING OR SCOFFING AT THE CORPSE OF THE VICTIM. — We,
however, nd and sustain the nding of the lower court that the aggravating
circumstance of outraging or sco ng at the corpse of the deceased applies against
the accused since it is established that he mocked or outraged at the person or corpse
of his victim by having an anal intercourse with her after she was already dead. The fact
that the muscles of the anus did not close and also the presence of spermatozoa in the
anal region as testi ed to by Dr. Angeles Roxas, the medico-legal o cer, and con rmed
to be positive in the Laboratory Report, Exhibit "B-1", clearly established the coitus after
death. This act of the accused in having anal intercourse with the woman after killing
her is, undoubtedly, an outrage at her corpse.
7. CRIMINAL PROCEDURE; AGGRAVATING CIRCUMSTANCE NOT ALLEGED BUT
PROVED DURING TRIAL; UTILIZED AS AID OF THE COURT IN FIXING LIMITS OF
PENALTY. — It is true as maintained by the defense that the aggravating circumstance
of outraging at the corpse of the victim is not alleged in the information and that the
lower court found it had been proved but its contention that the said aggravating
circumstance should not have been appreciated against the accused is without merit.
And this is so because the rule is that a generic aggravating circumstance not alleged in
the information may be proven during the trial over the objection of the defense and
may be appreciated in imposing the penalty (People vs. Martinez Godinez, 106 Phil.
597). Aggravating circumstances not alleged in the information but proven during the
trial serve only to aid the court in xing the limits of the penalty but do not change the
character of the offense. (People vs. Collado, 60 Phil. 610, 614; (People vs. Campo, 23
Phil. 368; People vs. Vega, 31 Phil. 450; People vs. Domondon, 64 Phil. 729).
8. CRIMINAL LAW; BENEFITS OF SECTION 192 OF P.D. 603, INVOKED; CASE AT
BAR. — On the claim of the defense that the accused is entitled to the bene ts of
Section 192 of P.D. 603 before its amendment by P.D. 1179 on August 15, 1977, the
records disclose that at the time of the commission of the crime on August 8, 1975,
said accused was seventeen (17) years, eleven (11) months and four (4) days old, he
having been born on September 4, 1957 in Orlando, Florida, U.S.A. The records further
disclose that during the consideration of the defense's motion to suppress the extra-
judicial confession (Exhibit "H") the accused declared that he was eighteen (18) years
old as evidenced by the certi cation issued by Vice Consul Leovigildo Anolin of the
Consul General of the Philippines in New York City dated November 14, 1975 (Exhibit
"1" — Motion). We do not agree with the reasoning of the trial court that the accused
had not invoked the privilege granted under Article 192 of P.D. 603 before its
amendment because the records manifestly show the vigorous plea of the accused for
its application not only in the Motion for New Trial but also in the Motion for
Reconsideration led by the accused (See pp. 237-248, 261-271, Records of Criminal
Case No. 2465, People vs. Michael J. Butler, CFI of Zambales. Branch I, Olongapo City).
We hold and rule that the lower court erred in not applying the provisions of Article 192
of P.D. 603 suspending all further proceedings after the court had found that the
accused had committed the acts charged against him, determined the imposable
penalty including any civil liability chargeable against him. The trial court should not
have pronounced judgment convicting the accused.
9. ID.; PENALTY; PROPER PENALTY IMPOSABLE IN THE PRESENCE OF
PRIVILEGED MITIGATING CIRCUMSTANCE AND AGGRAVATING CIRCUMSTANCE. —
We likewise hold that the penalty of death was not justi ed. Since murder was
committed by the accused, under Article 248 of the Revised Penal Code, the crime is
punishable by reclusion temporal in its maximum period to death. The accused is a
minor and he is entitled to the privileged mitigating circumstance of minority which
reduces the penalty one degree lower and that is prision mayor in its maximum period
to reclusion temporal in its medium period, or ten (10) years and one (1) day to
seventeen (17) years and four (4) months (Article 68, Revised Penal Code). With one
aggravating circumstance, that of outraging at the corpse of the victim, the penalty
imposable is the maximum period which is reclusion temporal medium or fourteen (14)
years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.
Imposing the Indeterminate Sentence Law, the imposable penalty is eight (8) years and
one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal as maximum.
10. CRIMINAL PROCEDURE; MOTION TO DISMISS UNDER P.D. 603. — We nd no

merit to the opposition of the People. Our dismissal of the mandamus petition in G.R. L-
48788 which was for lack of merit due to the insu cient proof of minority of the
accused is no bar to raising the same issue in the instant automatic review of the case
after We had admitted the proper authentication of the accused's birth certi cate "to
form part of the evidence." (See Resolution of June 4, 1981, rollo). The second ground
is likewise without merit for the accused was below 21 years at the time of his trial and
even at the time judgment was promulgated to him on December 3, 1976 (he was then
19 years, 3 months and 3 days old). Neither does the third ground hold water because
P.D. 603 was amended on May 15, 1977, which was after the trial and conviction
already of the accused. The amendment passed during the pendency of the appeal and
it cannot adversely affect the right, privilege or bene t accorded to the minor for
suspension of the sentence under the original provision of Article 192 of P.D. 603. The
lower court having erred in not suspending the sentence of conviction against the
accused-appellant who is entitled thereto under the original provisions of Article 192 of
P.D. 603, We agree with the defense plea that the "accused-appellant's imprisonment in
the BRIG, (be treated) as equivalent to what should have been his full period of
commitment under the case and custody of the Ministry of Social Services and
Development. After all, and as said Ministry has reported, it has been regularly visiting
accused-appellant at his cell in the BRIG, and is, therefore, in a position to attest to the
exceptional behavior of accused-appellant." The dismissal of the case against the
accused Michael Butler is, therefore, meritorious and justi able. We hereby order his
nal discharge therefrom. His nal release, however, shall not obliterate his civil liability
for damages in the amount of P24,000.00 to the heirs of the victim which We hereby
a rm. Such release shall be without prejudice to the right for a writ of execution for the
recovery of civil damages (Article 198, P.D. 603).
AQUINO, J., dissenting :
1. REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL CONFESSION; WAIVER IN
WRITING OF CONSTITUTIONAL RIGHTS, ALLOWED. — Although the confession was
taken during custodial interrogation when Butler was not assisted by counsel, it was
admissible in evidence because he voluntarily, knowingly and intelligently waived in
writing his constitutional rights to have counsel and to remain silent. Such waiver is
allowed. (Miranda vs. Arizona, 16 L.Ed. 2nd 694).
2. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; OUTRAGING OR SCOFFING
AT THE VICTIM'S CORPSE; NOT A CASE OF. — Butler's confession shows that the
murder was quali ed by abuse of superiority. It was not aggravated by the
circumstance of outraging or sco ng at her person or corpse. The trial court
appreciated that aggravating circumstance because of the testimony of Doctor
Angeles Roxas, the medico-legal o cer, that Butler had anal intercourse with the victim
after her death. Doctor Roxas based his conclusion on the fact that the victim's anus
was partly open and contained spermatozoa. He said that the anus would have
completely closed had the intercourse occurred while the victim was still alive. The
speculations of the medico-legal o cer and the trial judge that there was posthumous
sodomy are unwarranted. The prosecution is bound by Butler's confession. He
indicated therein that he had sexual intercourse with the victim from the rear when she
was alive and not after her death. He alleged that the squabble over his ve-peso bill,
which the victim took without his consent, was the cause of the ght which he had with
the victim. Consequently, the circumstance of having outraged or scoffed at the
victim's corpse cannot be appreciated in this case.
3. ID.; PRIVILEGED MITIGATING CIRCUMSTANCE; MINORITY. — The confession
also proves that Butler did not intend to commit so grave a wrong as that which he
committed and that he was intoxicated at the time the killing was perpetrated. Taking
into account the privileged mitigating circumstance of minority, the penalty imposable
on Butler should be lowered by one degree. He is entitled to an indeterminate sentence.
He should be sentenced to a penalty of ve years of prision correccional maximum as
minimum to eleven years of prision mayor as maximum.
4. ID.; CHILD AND YOUTH WELFARE CODE; AS AMENDED BY P.D. 1179;
OFFENDER OVER 18 YEARS AT TIME OF CONVICTION, NOT ENTITLED TO SUSPENDED
SENTENCE. — Presidential Decree No. 1179 reduced the age of youthful offenders to
less than eighteen years (similar to the original provision of Article 80 of the Revised
Penal Code) and amended Article 192, by requiring that the youthful offender should
apply for a suspended sentence and that the suspension of the sentence should be
allowed only when public interest and the interest of the minor would be served
thereby. The amendment also provided that there should be no suspension of the
sentence of: (1) one who once enjoyed the suspension of sentence under Article 192;
(2) one who is convicted for an offense by military tribunals. Butler has taken
inconsistent position. His ambivalence is the cause of his having lost the right to ask
for a suspended sentence. His repudiation of his confession and his plea of not guilty
are inconsistent with his contention that he should have been given a suspended
sentence, a remedy which presupposes that he is guilty. This Court has ruled in several
cases that where the accused was below eighteen years at the time he committed a
crime but he was over eighteen years at the time of his trial or conviction, he is not
entitled to a suspended sentence (People vs. Casiguran, L-45387, November 7, 1979,
94 SCRA 244, 249). Because Butler is now twenty- ve years old, the question of
whether he is entitled to a suspended sentence has become moot and academic. He is
no longer a juvenile offender.
5. ID.; ID.; PROPER PENALTY IMPOSED NOTWITHSTANDING MINORITY OF
ACCUSED. — Thus, where on May 14, 1963, when the robbery with homicide was
committed, Teresita Nolasco, one of the accused, was 15 years and ve months old,
and the trial court did not suspend her sentence but convicted her, this Court in its
decision dated December 19, 1970, a rmed the judgment of conviction and imposed
on her the proper penalty after giving her the bene t of the privileged mitigating
circumstance of minority (People vs. Espejo, L-27708, 36 SCRA 400, 425. See People
vs. Parcon, L-39121, December 19, 1981, 110 SCRA 425; People vs. Labrinto, L-43528-
29, October 10, 1980, 100 SCRA 299; People vs. Capistrano, 92 Phil. 125; People vs.
Celespara, 82 Phil. 399; People vs. Nuñez, 85 Phil. 448).
6. ID.; SENTENCE; FULL CREDIT FOR CONFINEMENT EXCEEDING THE MINIMUM
OF THE SENTENCE ENTITLES OFFENDER TO CONDITIONAL PARDON OR PAROLE. —
The accused should be made to serve his sentence of ve years of prision correccional
as minimum to eleven years of prision mayor as maximum. The most that can be done
for him is to give him full credit for his con nement in the stockade, a period already
exceeding the minimum of his indeterminate sentence, and to give him a conditional
pardon or release him on parole.
DECISION
GUERRERO , J : p
This is an automatic review of the judgment of the Court of First Instance of

Zambales, Third Judicial District, Branch I, nding the accused Michael J. Butler in
Criminal Case No. 2465 guilty beyond reasonable doubt of the crime of murder
quali ed by abuse of superior strength, with the attendance of aggravating
circumstances of treachery and sco ng at the corpse of the deceased, without any
mitigating circumstance and sentencing the accused with the penalty of death, and
ordering him to indemnify the heirs of the victim with the sum of P24,000.00. LLpr
In an Information dated October 16, 1975, accused-appellant Michael J. Butler

was charged with the crime of murder committed as follows:
"That on or about the 8th day of August, 1975, in the City of Olongapo,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill and taking advantage of his superior strength, did then
and there wilfully, unlawfully and feloniously assault, attack and hit with a statue
of Jesus Christ one Enriquita Alipo alias 'Gina Barrios' and after said Enriquita
Alipo fell at on her face, the above-named accused, again taking advantage of
his superior strength then and there apply force and pressure on the back of the
head of said Enriquita Alipo thereby forcing and sinking the latter's mouth and
nose against the mattress of the bed, and as a result thereof, the said Enriquita
Alipo was not able to breathe and was choked, thus directly causing the death of
said Enriquita Alipo alias 'Gina Barrios'."
Upon arraignment, accused-appellant pleaded not guilty, hence the trial
was conducted and at the termination of which, judgment of conviction was
rendered.
It appears from the records of the case that on August 7, 1975, at about 10:30
p.m., accused-appellant Michael Butler and the victim, Enriquita Alipo alias Gina Barrios
were together at Colonial Restaurant in Olongapo City. They were seen together by Lilia
Paz, an entertainer and friend of the victim, who claimed to have had a small
conversation with the accused, and by one Rosemarie Juarez, also a friend of the victim.
At about 1:00 of the same evening, the accused and the victim left the said restaurant, 1
after the latter invited Rosemarie Juarez to come to her house that night.
Emelita Pasco, the housemaid of the victim, testi ed that, at about 11:30 p.m. or
so of August 7, 1975, her mistress (Gina Barrios) came home with the accused-
appellant. As soon as she opened the door for them, the victim and accused-appellant
immediately entered the victim's bedroom. Shortly thereafter, the victim left her
bedroom holding an ID card and a piece of paper, and on the piece of paper, the victim
purportedly wrote the following words: MICHAEL J. BUTLER, 44252-8519 USS
HANCOCK. Said words were copied from the ID Card. cdphil
Pasco testi ed that the victim said she was copying the name of the accused
because she knew he would not be going back to her. Then she rushed back to her
bedroom after instructing Pasco to wake her up the following morning. 2 Before
retiring, however, the victim's friend, Rosemarie Juarez, came to the former's house and
after having a small conversation, also left.
The following day, August 8, 1975, at about 4:00 a.m., Pasco rose to wake her
mistress as instructed. She knocked at the door. She found that the victim was lying on
her bed, facing downward, naked up to the waist, with legs spread apart, with a broken
gurine beside her head. Immediately, Pasco called the landlord and they called the
authorities. 3
Patrolman Rudyard de los Reyes of the Olongapo Police Department arrived
together with Fiscal Llamado and Corporal Sobrepeña at about 6:00 a.m. of August 8,
1975. Pasco informed Patrolman de los Reyes that the accused Butler slept with the
victim the previous night, and the former gave the latter the piece of paper where the
name of the accused was written.
Sergeant Galindo of the Olongapo Police Department handed over to Jesus
Bensales, a ngerprint technician of the Police Department, a piece of cellophane
together with the broken gurine for latent print examination. The latent print
examination report (Exh. E-4) showed that there were three (3) fragmentary latent
prints that were lifted from the cellophane wrapping of the gurine. But only one print
was clear and distinguishable. This particular print was found identical with the
accused's left middle ngerprint on thirteen (13) points. Bensales later testi ed that
the latent print developed from the piece of cellophane belonged to the accused Butler.
4
On the same day, o cers of the Olongapo Police Department informed the Naval
Investigation Services Resident Agency (NISRA) in Subic Bay that an American Negro by
the name of Michael J. Butler on board the USS Hancock was a suspect in a murder
case. Jerry Witt and Timothy Watrous, both special agents of NISRA, went on board
USS Hancock. They informed the legal o cer that one of the crew members was a
suspect in a murder case. After being located, the accused was brought to the legal
o ce of the ship. Witt identi ed himself, showed his credentials and informed the
accused that he was a suspect in a murder case. Then Witt informed the accused of his
constitutional rights to remain silent and right to counsel. Then the accused was
searched, handcuffed, and was brought to NISRA office.
Arriving at NISRA o ce at about 11:00 a.m. of the same day, the investigation
and interrogation were started by James Cox, NISRA investigator, at about 2:55 p.m.
According to Cox's testimony, before he started the interrogation, he identi ed himself,
informed the accused of his constitutional rights. At the cross-examination, he stated it
took him about 1-1/2 hours to nish the investigation. The rst 45 minutes was
accordingly devoted to interrogation, and for the next 45 minutes, he called James
Beaver who reduced the oral investigation into writing. Cdpr
James Cox also testi ed that after apprising the accused of his constitutional
rights to remain silent and right to counsel, he asked the accused if he needed a lawyer
and if he understood his rights (constitutional rights and rights under the military code
of justice). The accused accordingly said he understood his rights and that he did not
need a lawyer.
The result of that investigation was thus a document taken from the accused
consisting of three (3) pages, signed and initialed on all pages by him and containing a
statement that he was aware of his constitutional rights, and a narration of the facts
that happened on August 7, 1975.
For purposes of clarity, the entire text of the waiver of constitutional rights and
the extrajudicial confession containing the narration of facts by the accused-appellant
(Exhibit H) are reproduced as follows:
"Place: NISRA Subic Bay
I, SA MICHAEL JEROME BUTLER USN 142528519 have been advised by
Special Agent(s) JN COX and JJ CREATURO that I am suspected of MURDER OF
GINA BARRIOS ALSO KNOWN AS ENRIQUETA ALIPO FILIPINA NATIONAL AND
THE USE DANGEROUS DRUGS. I have also been advised:
MJB (1) That I have the right to remain silent and make no statement at all;
MJB (2) That any statement I do make may be used as evidence against me
in a trial by Court-Martial;
MJB (3) That I have the right to consult with a lawyer prior to any
questioning. This lawyer may be a civilian lawyer retained by me at my own
expense; or, if I wish, Navy/Marine Corps authority will appoint a Military
lawyer to act as my counsel without cost to me;
MJB (4) That I have the right to have such retained civilian lawyer or
appointed military lawyer present during this interview;
MJB (5) That I have the right to terminate this interview at any time for any
reason.
MJB I understand my rights as related to me and as set forth above. With
that understanding, I have decided that I do not desire to remain silent, that I
do not desire to consult with either a civilian or military lawyer at this time
and I do not desire to have such a lawyer present during this interview. I
make this decision freely and voluntarily and it is made with no threats
having been made or promises extended to me.
(Sgd)
Signature: MICHAEL J. BUTLER
Date and Time: 1502 8 Aug. 1975
1546 hours
Witnessed JN COX SA NIS
JJ CREATURO S/A NIS
Date and Time: 8 August 1975

At this time, I, SA Michael Jerome Butler, 14258519, desire to make the
following voluntary statement. This statement is made with an understanding of
my rights as previously related to me and as set forth above, and it is made with
no threats having been made or promises extended to me. This statement is
being typed by YNI James R. BEAVER, USN, as I discussed its contents with Mr.
COX and Mr. CREATURO. I was born 09-04-57 at Orlando, Florida. I am a black,
male American 6 foot tall and I weigh 155 pounds. I enlisted in the US Navy on 3
February 1975 for four years. Since 10 June 1975, I have been assigned to the
USS HANCOCK (CV-10).
During the evening hours of 7 August 1975, while on liberty, I went to Bob's
Tailor Shop in Olongapo City, R.P. While I was there I talked to a girl and drank
some gin and beer and got drunk. The girl's name was Victoria PEÑA. There was
another girl in the tailor shop and she was making eyes at me. I walked outside
the tailor shop and she followed me and we spoke to each other. This was
sometime after 9 PM. She asked me if I wanted to go home with her and I said
yes. We caught a tricycle and went to her house. She paid the man one peso.
When we got to the house another girl let us in. After we got to the house, the girl
that I was with showed me her health card, but I couldn't read the name on it. I
went upstairs and the girl that I was with showed me the bedroom which was just
to the left at the top of the stairs. I went in and sat down on the bed. She came in
and asked me for some money. She told me she was going to screw me. (By this I
understood we were going to engage in sexual intercourse). I gave her
approximately 27 pesos. She left the room and said that she was going to get
some cigarettes and would be right back. She came back later and came into the
room, walked out of the room and said something to the girl in the next room. The
two of them came into the bedroom where I was and they were laughing about
something. The other girl then left and the two of us were in the bedroom alone.
Both of us got undressed and I laid down on the bed and went to sleep. I woke up
sometime later and she was in bed with me. At this point I rolled the girl over and
made love to her. (By this I mean I engaged in sexual intercourse with her from the
rear). My intention was to screw her in the vagina. If I screwed her in the rectum, I
didn't intend to. After we nished, I rolled over and went back to sleep again.
Roosters started crowing and I woke up and it was starting to get daylight. The
girl was already awake. I thought that it was time for me to go back to the ship so
I told her that I had to leave. I couldn't nd my watch and asked her where it was
and she said that the girl in the next room had it. I was sitting on the bed and I
reached down to pull up my sock and I discovered that a ve peso note that I had
in my sock was missing. I asked her about it and she said that she had gotten it.
We started arguing about my ve pesos and she started saying something to me
in the Filipino language and I told her to speak English. I walked over and looked
at her hard and she wanted to know what I was looking at and I asked her why
she took my money. I said 'Ah, fuck it,' and pushed her down onto the bed. She
got off the bed and smacked me and I smacked her back. She started tussling
and acting like she was going to hit me with a karate chop. I thought she was
going to do something dangerous to me so I grabbed her, and we started
wrestling on the bed. She grabbed me by the throat and I picked up a statue of
Jesus Christ that was sitting on a bedside stand and I hit her in the head. She fell
at on her face. I didn't intend to kill the girl but I was mad and wanted to hurt her.
She didn't say anything to me but she was making some kind of groaning noise. I
went in the next room and got my watch, came back in the bedroom, got dressed
and left. I started walking towards the base. I saw the lights of a vehicle coming
so 1 stepped inside of a building so I wouldn't be caught out after the curfew. As
it turned out it was a Marine in a military truck, I'm not sure if he was with the
Armed Forces Police or the Shore Patrol. The Marine was white and bald headed
and wore a badge. He gave me a ride to the Armed Forces Police Station at the
Main Gate, Subic Bay, I then went from there to my ship. I was dressed in civilian
clothing and I had on a pair of burgandy trousers and a blue and white printed
shirt. I left these items of clothing on the top of my bunk located in the 2nd
Division berthing area.
When I was with the girl last night, I was drunk from drinking alcohol. I did
not take any narcotics or dangerous drugs because I do not use them. I never did
know the girl's name that I was with. She was a Filipina, approximately 4'11",
black hair (long). She wore glasses (tinted). When she and I engaged in sexual
intercourse I reached a climax while my penis was in her. When I met her she was
wearing a two-piece sh net top and skirt, they were both purple. This is all I can
remember about what she looked like. I don't know the exact location at which
she lived except that it was somewhere in Olongapo City, R.P. To my knowledge,
the girl did not take any drugs while I was with her.
I have read the above statement, consisting of three pages, and it is true
and correct to the best of my knowledge. No threats or promises have been made
to induce me to make this statement.
(Sgd.)
MICHAEL J. BUTLER
(Name, date, time)
1634-8 Aug. 75")
James Beaver later testi ed that he typed the statement of the accused, that the
accused gave his statement in answer to the questions of James Cox and that the
accused signed all the pages of the statement, that he was apprised of his
constitutional rights to remain silent and to counsel by James Cox, that the accused
was aware of his constitutional rights and that he a xed his signature and initials on
the document which contained the warning regarding his rights. 5
In the meantime, Dr. Angeles Roxas, Medico Legal O cer of the Olongapo Police
Department who also came to the scene of the crime on August 8, 1975, examined the
corpse of the victim and later issued an autopsy report (Exhibit D) with the following
findings: LLphil
"NAME: — ENRIQUITA ALEPO y Apolinario alias Enriquita Barrios
DATE & TIME: — 10:30 A.M., August 8, 1975

PLACE: — Funeraria Fernandez Morgue
The body is that of a middle-aged woman identi ed as Enriquita Alepo y
Apolinario, about 26 years old, native of Bugasong, Antique and resident of 8
Fontaine Extension. Olongapo City, found sprawling on her face with her legs
widely spread far apart, with no underwear and her housedress folded from below
upwards up to her waistline, thus exposing her private parts. There was starting
rigidity of the extremeties and starting lividity of the face, neck and abdomen
which are the dependent portions of the body. On top of the head are broken
pieces of porcelain wares.
Close examination of the body showed ne, short, curly hairs numbering
ve in all, found in the area of the anal region, with small amount of blood in the
between the anal folds. There were also ne pieces of porcelain wares on her
teeth and gums, upper and lower, just behind the upper and lower lips. Further
examination failed to show any sign of external physical injuries, except for a
slight abrasion, measuring 3 mm. in diameter, posterior portion, junction of the
anal mucous membrane and the skin.
The body was opened in the usual Y-shaped incision of the chest and
abdomen to expose the different vital internal organs. The head was likewise
opened by means of a saggital incision of the scalp, then de ecting the anterior
and posterior portions, and then making a coronal incision of the skull to expose
the brain substance. The following are the significant findings:
I. HEAD and NECK: Failed to nd any fracture of the skull. Brain apparently
normal. No sign of intra-cranial hemorrhage.
II. CHEST:
1. Heart: apparently normal except that the right side of the heart is
fully filled with blood.
2. Lungs: Markedly congested but no sign of edema. No obstruction
of the trachea.
III. ABDOMEN: all the internal abdominal organs are apparently normal
NO OTHER SIGNIFICANT FINDING.
Specimens from the anal and vaginal smears were submitted to the OCGHI
laboratory for examinations.
CAUSE OF DEATH: Asphyxia due to suffocation
(Sgd.)
Angeles S. Roxas, M.M
Medico-Legal Officer
Olongapo Police Station 21"
Dr. Roxas later testi ed that anal intercourse was had with the victim after her
death as indicated by the partly opened anus and the presence of spermatozoa in it. He
testi ed that the anus would have automatically and completely closed had the
intercourse occurred, while the victim was still alive. He also categorically testi ed that
the victim died of asphyxia due to suffocation when extreme pressure was exerted on
her head pushing it downward, thereby pressing her nose and mouth against the
mattress. 6
After trial, judgment was promulgated on December 3, 1976 nding the accused
guilty beyond reasonable doubt of the offense charged. The dispositive portion of the
decision reads as follows: llcd
"WHEREFORE, judgment is hereby rendered:

(a) Finding the accused Michael J. Butler guilty beyond reasonable doubt
of the crime of murder quali ed by abuse of superior strength and there being
proven the aggravating circumstance of treachery and outraging or sco ng at
the corpse of the deceased, not offset by any mitigating circumstance, the Court
hereby sentences him to DEATH;
(b) Ordering the accused to indemnify the heirs of the deceased Enriquita
Alipo alias "Gina Barrios" the sum of TWENTY FOUR THOUSAND (P24,000.00)
PESOS; and
(c) Ordering the accused to pay the litigation expenses and the costs of the
proceedings.
Let a copy of this decision be furnished His Excellency President Ferdinand

E. Marcos and the Honorable Secretary of Justice, Vicente Abad Santos, for their
information and guidance.
SO ORDERED."
On December 17, 1976, a motion for new trial was led by the accused-appellant.
Said motion assailed the decision of the court a quo on the ground that a serious error
of law was committed prejudicing his substantial rights. The accused-appellant alleged
in said motion that he was a minor at the time the offense was allegedly committed,
and having invoked his minority, he was entitled to the suspension of the sentence
pursuant to P.D. 603, Art. 192 before its amendment by P.D. 1179 on August 15, 1977.
LLphil
The motion for new trial was denied on January 25, 1977. A motion for
reconsideration was subsequently filed which was also denied.
A petition for mandamus was thereafter led with this Honorable Court praying,
among other things, that an order be issued commanding respondent judge to set
aside the judgment dated December 3, 1976, to declare the proceedings suspended
and to commit the accused-appellant to the custody of the Department of Social
Welfare (now Ministry of Social Services and Development) or any other training
institution licensed by the government or any other responsible person, in accordance
with P.D. 603, Art. 192 before its amendment by P.D. 1179 on August 15, 1977.
On December 13, 1978, a minute resolution was issued by this Honorable Court
dismissing the petition for mandamus for lack of merit.
On May 26, 1981, accused-appellant led in the present appeal, a manifestation
and motion dated May 19, 1981, praying that the certi ed certi cate of live birth of the
accused appellant be admitted to form part of the evidence. On June 4, 1981, this
Honorable Court resolved to admit the same to form part of the evidence.
The accused-appellant made six (6) assignments of errors in his brief, and seven
(7) supplemental assignments of errors in his supplemental brief. In essence, however,
the issues can be reduced into the following:
I. Whether or not the trial court erred in giving full credence to the testimony
of the prosecution witnesses;
II. Whether or not the trial court erred in admitting in evidence the alleged
extrajudicial admission of the accused (Exh. H) and appreciating it against him;
III. Whether or not the trial court erred in nding the accused guilty of the
crime of murder quali ed by abuse of superior strength, with aggravating
circumstances of treachery and scoffing at the corpse of the victim;
IV. Whether or not the trial court erred in appreciating treachery and abuse
of superior strength simultaneously and separately;
V. Whether or not the trial court erred in accepting the testimony of Dr.
Angeles Roxas, the Medico-Legal O cer, that asphyxiation by suffocation was
the cause of death of the victim;
VI. Whether or not the trial court erred in denying the accused the bene ts
of Section 192 of P.D. 603 before its amendment by P.D. 1179 on August 15,
1977.
The rst issue is whether or not the trial court erred in giving full credence to the
testimony of the prosecution witnesses.
Under the said issue, the accused-appellant contends that the court a quo erred
in giving full credence to the testimony of the prosecution witnesses.
The rule is well-established that the ndings and conclusions of the trial court on
the credibility of the witnesses are matters that are left mainly to its discretion because
it is the trial court which observed the demeanor and the manner of testimony of the
witnesses and, therefore, the trial court is in a better position to assess the same than
the appellate court. As a matter of established jurisprudence, the ndings of the trial
court on the credibility of a witness are not disturbed on appeal unless there is a
showing that it failed to consider certain facts and circumstances which would change
the same. 7
This Court rules that the court a quo did not, err in giving credence to the
testimony of the prosecution witnesses. There were three (3) persons who identi ed
the accused as the person last seen with the victim on the night in question, namely
Emelita Pasco, the maid, Lilia de la Paz, the entertainer-friend of the victim, and
Rosemarie Juarez, another friend of the victim.
The nger print examination showed that one of the three fragmentary latent
prints lifted from the cellophane wrapping of the gurine used in striking the victim was
identical with the accused's left middle finger print on thirteen (13) points.
As to the contention that the ndings of the medico-legal o cer were
inadequate and inconclusive, We rule that the accused-appellant failed to present clear
and positive evidence to overcome the scienti c and speci c nding and conclusion of
said officer. The details of such findings and conclusions will be discussed herein later.
The second issue is whether or not the trial court erred in admitting in evidence
the alleged extrajudicial admission of the accused (Exh. H) and appreciating it against
him.
Counsel for the accused-appellant questions the regularity of how the arrest of
the accused was made and the regularity of how warning of the accused-appellant's
constitutional rights were given. Counsel contents that Sec. 20, Art. IV (Bill of Rights) of
the New Constitution which embodies the constitutional rights of the person under
custodial investigation against self-incrimination, and the doctrine laid down in the
classic case of Miranda vs. Arizona 8 have been violated.
Thus, accused-appellant maintains in his brief:
"In the Miranda case, the accused was arrested by the police and taken to a
special interrogation room where he signed a confession which contained a typed
paragraph stating that the confession was made voluntarily with full knowledge
of his legal rights and with the understanding that any statement he made might
be used against him. It will be noted that the prosecution's EXHIBIT "H" and all the
submarkings thereunder was obtained from the accused-appellant under
precisely similar conditions as in the Miranda case. He was taken from his ship
by Naval Intelligence Service special agents and roughly handed from the very
start. Before he could even get his bearings, he was immediately handcuffed and
told that he was a primary suspect in a very serious offense - murder. And then,
before living him any of the warnings called for under the abovequoted guidelines
provided by the Miranda case, was questioned about the alleged offense which
he was being suspected even while awaiting transportation to the o ce of Naval
Intelligence. At the o ce of Naval Intelligence, the accused-appellant was placed
in a special interrogation room and left alone for a little while. When he was
nally joined again by NIS Investigators, he was merely given the standard
mimeographed warning and told to sign the same without even so much as
explaining to him the contents and signi cance of the mimeographed form which
he was being asked to sign. The accused appellant was never informed that
whatever statements he may given might be used against him in a trial before a
Philippine court and was never really given the opportunity to consult with a
lawyer, whether military or civilian. The interrogation of the accused-appellant
then proceeded and lasted all day without giving him the opportunity to rest. And
then, in the preparation of said statement (EXHIBIT "H") a yeoman of the NIS
investigator did the typing and typed only those portions of the interrogation
session which the NIS investigator told him and which turned out to be
incriminating to the accused-appellant. The NIS interrogation could be easily
characterized as a police-dominated incommunicado interrogation. This type of
interrogation is precisely the kind which was severely criticised by the Miranda
doctrine." 9
Accused-appellant further argues: LLphil
"The evidence clearly shows that the Naval Intelligence agent who
interrogated the accused-appellant (special Agent Cox) employed precisely the
police interrogation procedures described by the U.S. Supreme Court in the
Miranda case, i.e. interrogation in privacy of their special interrogation room
(incommunicado questioning) in unfamiliar surroundings, employing deceptive
stratagems, and failure or inadequate warning of his rights to counsel and to
remain silent etc., thereby breaking down his will power by failing to allow him
some rest or respite. It is in this obviously police-dominated surrounding that the
accused nally succumbed to the oppressive atmosphere of the dogged and
persistent questioning of the Naval Intelligence interrogator and nally gave the
questioned statement (EXHIBIT "H") just to get it over with." 1 0
We reject accused-appellant's contention and argument. Contrary to what the

counsel for the accused-appellant contends, there is no evidence showing that the
accused was roughly handed from the very start. Neither is there any evidence to prove
that he was rst handcuffed and informed that he was a suspect in a murder case
before he was warned of his rights.
The manner of arrest as testi ed to by witness Jerry Witt, which was not
controverted, was as follows: 1 1
"Q Will you tell how you make arrest of a serviceman on board a ship?
A We went to the USS HANCOCK to contact the legal o cer and told him
that one of his crew members is a suspect in a murder case and we
went to talk to him.
Q And what did the legal officer do?
A They tried to locate him.

Q Were you with the group who located Michael Butler?
A Yes.
Q Who were with you?

A Watrous, the legal officer, ship master whose name I do not know.
Q After you found Michael Butler, where was he brought?

xxx xxx xxx
Q When Michael Butler was brought to the legal office, what happened?
A I identi ed myself, showed my credentials and said he was a suspect in a

murder case, that it is his right to remain silent and his right to a
lawyer. He was informed of the crime and asked him to put up his
arm against the wall, we made body search to look for possible
weapon. He had some kind of tools, handcuffed him and took him to
our office.
Q Did he refuse?
A He was very submissive.
Q Why did you make him face the wall and search him?
A Normal procedure.
Q And did he ever resist?
A No.
Q How about being handcuffed?
A Not at all.
Q And this manner of searching and handcu ng, was it done in the
presence of the legal officer?
A Yes."
It is clear that there was no mandhandling on the part of the accused. Neither
could it be deduced from the events which transpired on board the ship that there was
any moral coercion exerted to break his will. It should also be noted that as early as this
time, the accused-appellant had already been informed of his constitutional rights. On
this point, NISRA investigator James Cox on direct examination said:
"Q Prior to your interrogation being an investigator, what are the requisites in
your talking to the suspect?
A By identifying myself to him, advising him of his rights, of his

constitutional rights.
Q And this advise of his rights are reduced to writing?
A Yes.
Q And is this done to Michael Butler?
A Yes.
Q And you said that prior to your interrogating Michael Butler you have
warned him of his constitutional rights and his rights under the
Uniform Code of Military Justice, and the same reduced to writing . . .
I will withdraw.
Q You said that the interrogation on Mr. Butler has been reduced to writing, I
have here a three-page statement of Michael Butler, will you tell what
is the relation of this to the statement you have taken on Michael
Butler?
A This is the statement I took from Michael Butler, on AUGUST 8, 1975.
xxx xxx xxx

Q You said that you warned the accused of his rights under the military code
of justice, is this embodied in the statement?
A Yes.
Q Will you please point to the statement, where is it? (Witness pointing to the
first half upper portion of page one of Exh. "A" motion).
xxx xxx xxx

Q And do you know if the accused understood his rights as warned by you?
A He said he did.
Q Do you have evidence that he understood the warning you gave in

connection with his rights?

A I asked him if he understood, he said yes. I asked him if he needed a
lawyer, he said no, and put his initial in my presence." 1 2
On cross-examination, witness Jerry Witt declared:

"Q You did not stay long in the o ce of the legal o cer after he was
brought in?
A No.
Q In short, the only thing that happened in the legal o ce is that he was
searched, had his body to the wall and handcuffed him?
A He was warned.
Q But at that time there was no interrogation?

A Right.
Q And he did not say anything?

A I do not remember him saying anything.
Q Was the warning given before he was handcuffed?
A That was the very first thing.

Q Do I understand that you gave him the warning in the deck?
A Down in the legal office, I do not want to embarrass him, I did it in private.
Q In the presence of Watrous?
A Yes, and the legal officer.
Q How long after you said this warring before you handcuffed him?
A Two or three minutes.
Q And after you handcuffed him you did not reiterate your warning
anymore?
A No more, just to come with us." 1 3
Neither are We convinced of the accused-appellant's assertion to the effect that

the "police-dominated incommunicado interrogation" at NISRA o ce morally coerced
him to sign the "mimeographed warning" and to give the extra-judicial admission. While
it may be true that a considerable span of time elapsed from the moment the accused
was brought to the NISRA o ce to the time the interrogation was begun and reduced
to writing, there is no competent evidence presented to support the allegation that the
statement made by the accused was a result of pressure and badgerings. In the
absence of such competent evidence, that argument remains to be a mere speculation
which cannot be made to prevail over what the prosecution witnesses have established
and which have not been successfully controverted.
We agree with the court a quo that the Miranda doctrine nds no application in
this case. As the court a quo observes: Cdpr
"The Miranda Doctrine does not apply in this case as the accused had
already waived his right to remain silent and to counsel after he was duly
informed of said rights by his investigators. The Court is not persuaded by the
claim of the accused as there is no reliable evidence to support it except his
naked testimony that he was threatened and coerced, which allegation was
contradicted and negatived by the fact that he signed and initialed each and every
page of Exhibit H, showing no signs of tremor as a result of the maltreatment,
threats or coercion. The naked denial of the accused regarding the preparation of
Exhibit H cannot overwhelm the true and positive testimonies of the prosecution
witnesses James Robert Beaver and James Creaturo, James Cox and Jerry Witt
as there appears no visible indication for his fellow Americans to fabricate their
declarations and testify falsely against the accused. Besides, it is a well-settled
rule that in weighing con icting testimonies, greater weight must be generally
given to the positive testimonies of the witnesses, for the prosecution than the
denials of the accused."
The third issue is whether or not the trial court erred in nding the accused guilty
of the crime of murder quali ed by abuse of superior strength, with aggravating
circumstances of treachery and scoffing at the corpse of the victim.
The prosecution maintains that there is abuse of superior strength as can be
deduced from the fact that the victim was slender, only 4'11" in height while the
accused is about 6 feet tall and 155 lbs.; that the accused took advantage of this
unequal physical condition when he struck the victim with the gurine which made the
victim unconscious, after which he shoved and pressed the victim's mouth and nose
against the bed mattress. 1 4
On the other hand, it is the defense counsel's contention that the court a quo
erred in appreciating the qualifying circumstance of abuse of superior strength
because like treachery, nocturnity and evident premeditation, this circumstance has to
be deliberately and purposely utilized to assure the accomplishment of the criminal
purpose without risk to the offender which might arise from the defense that the victim
might offer. The defense counsel further maintains that there is no evidence to support
that advantage was taken by the accused of his superior strength as, contrary to what
the court a quo said in its decision, there was no evidence nor testimony on the part of
the medico-legal o cer to the effect that when the victim was hit by a gurine, she
went into a coma, then her head was pushed by a pillow, causing her nose and mouth to
be pressured against the bed mattress. In addition to this, the defense counsel further
maintains that the instrument used by the accused, which was a brittle porcelain statue
of Jesus Christ, could not produce physical injury nor render the victim unconscious as
testified to at cross-examination by the medico-legal officer.
In People vs. Bustos, 1 5 this Court held that to be properly appreciated, it must
be shown that the accused is physically stronger than the victim or the relative strength
of the parties must be proved. In People vs. Casillar, 1 6 this Court said that the essence
of this circumstance is that advantage is taken by the offender of this physical strength
which is relatively superior to that of the offended party. The fact that the offender is
strong does not of itself prove its existence. 1 7
Still, in People vs. Cabiling, a guideline to determine whether or not there is abuse
of superior strength has been laid down. In that case this Court ruled:
"To take advantage of superior strength means to purposely use excessive
force out of proportion to the means of defense available to the person attacked.
This circumstance should always be considered whenever there is notorious
inequality of forces between aggressor, assuming a situation of superiority of
strength notoriously advantageous for the aggressor selected or taken advantage
of by him in the commission of the crime. To properly appreciate it, not only is it
necessary to evaluate the physical conditions of the protagonists or opposing
forces and the arms or objects employed by both sides, but it is also necessary to
analyze the incidents and episodes constituting the total development of the
event." 1 8
In the light of the above legal precepts and considering the evidence adduced,
this Court holds that there was an abuse of superior strength attending the
commission of the crime. It is not only the notorious advantage of height that the
accused had over his helpless victim, he being 6 feet tall and weighing 155 lbs. while
the girl was only 4 ft. 11 inches tall, but also his strength which he wielded in striking
her with the gurine on the head and in shoving her head and pressing her mouth and
nose against the bed mattress, which pressure must have been very strong and
powerful to suffocate her to death and without risk to himself in any manner or mode
whatsoever that she may have taken to defend herself or retaliate since she was
already struck and helpless on the bed, that convinced Us to nd and rule that the crime
committed is murder with the qualifying circumstance of abuse of superior strength. LLjur
The evidence on record, however, is not su cient to show clearly and prove
distinctly that treachery attended the commission of the crime since there was no
eyewitness account of the killing. The extra-judicial confession of the accused merely
stated, thus: "I thought she was going to do something dangerous to me so I grabbed
her, and we started wrestling on the bed. She grabbed me by the throat and I picked up
a statue of Jesus Christ that was sitting on the bedside stand and I hit her in the head.
She fell at on her face." Although the gurine was found broken beside her head, the
medical report, however, do not show any injury or fracture of the skull and no sign of
intracranial hemorrhage.
While We reject the presence of treachery, We, however, nd and sustain the
nding of the lower court that the aggravating circumstance of outraging or sco ng at
the corpse of the deceased applies against the accused since it is established that he
mocked or outraged at the person or corpse of his victim by having an anal intercourse
with her after she was already dead. The fact that the muscles of the anus did not close
and also the presence of spermatozoa in the anal region as testi ed to by Dr. Angeles
Roxas, the medico-legal o cer, and con rmed to be positive in the Laboratory Report,
Exhibit "B-1", clearly established the coitus after death. This act of the accused in having
anal intercourse with the woman after killing her is, undoubtedly, an outrage at her
corpse.
It is true as maintained by the defense that the aggravating circumstance of
outraging at the corpse of the victim is not alleged in the information and that the lower
court found it had been proved but its contention that the said aggravating
circumstance should not have been appreciated against the accused is without merit.
And this is so because the role is that a generic aggravating circumstance not alleged
in the information may be proven during the trial over the objection of the defense and
may be appreciated in imposing the penalty (People vs. Martinez Godinez, 106 Phil.
597). Aggravating circumstances not alleged in the information but proven during the
trial serve only to aid the court in xing the limits of the penalty but do not change the
character of the offense. (People vs. Collado, 60 Phil. 610, 614; People vs. Campo, 23
Phil. 368; People vs. Vega, 31 Phil. 450; People vs. Domondon, 64 Phil. 729).
On the claim of the defense that the accused is entitled to the bene ts of Section
192 of P.D. 603 before its amendment by P.D. 1179 on August 15, 1977, the records
disclose that at the time of the commission of the crime on August 8, 1975, said
accused was seventeen (17) years, eleven (11) months and four (4) days old, he having
been born on September 4, 1957 in Orlando, Florida, U.S.A. The records further disclose
that during the consideration of the defense's motion to suppress the extra-judicial
confession (Exhibit "H") the accused declared that he was eighteen (18) years old as
evidenced by the certi cation issued by Vice Consul Leovigildo Anolin of the Consul
General of the Philippines in New York City dated November 14, 1975 (Exhibit "1" —
Motion). According to the trial court, notwithstanding the presentation of Exhibit "1" —
Motion, the accused did not make any serious effort to invoke Article 192 of
Presidential Decree 603 and further, since the accused was found guilty of a capital
offense, the suspension of sentence and the commitment of the accused to the
custody of any institution or person recommended by the Department of Social Welfare
cannot be carried out.
On December 17, 1976, an Urgent Motion for New Trial was led by the defense
on the ground that a serious error of law was committed during the trial prejudicial to
the substantial right of the accused and newly discovered evidence which would
probably change the judgment of the court. The trial court denied the motion for lack of
merit as well as the subsequent Motion for Reconsideration and Second Motion for
Reconsideration. Thereupon, the records of the case were ordered immediately
forwarded to the Supreme Court for automatic review pursuant to law.
At the time of the commission of the offense, trial and rendition of judgment, the
applicable law was P.D. 603 otherwise known as Child and Youth Welfare Code. The
relevant provisions of the said law to the instant case are Articles 189 and 192 which
provide the following:
"Art. 189. Youthful Offender. De ned . — A youthful offender is one who is
over nine years but under twenty one years of age at the time of the commission
of the offense.
A child nine years of age or under at the time of the offense shall be
exempt from criminal liability and shall be committed to the care of his or her
father or mother, or nearest relative or family friend in the discretion of the court
and subject to its supervision. The same shall be done for a child over nine years
and under fteen years of age at the time of the commission of the offense,
unless he acted with discernment, in which case he shall be proceeded against in
accordance with Article 192.
The provisions of Article 80 of the Revised Penal Code shall be deemed

modified by the provisions of this Chapter.
Art. 192. Suspension of Sentence and Commitment of Youthful Offender.
— If after hearing and the evidence in the proper proceedings, the court should
nd that the youthful offender has committed the acts charged against him, the
court shall determine the imposable penalty, including any civil liability
chargeable against him. However, instead of pronouncing judgment of conviction,
the court, upon application of the youthful offender, if it nds that the best
interest of the public as well as that of the offender will be served thereby, may
suspend all further proceedings."
The trial court refused to consider and appreciate the minority of the accused
because the proof submitted by the defense was not duly authenticated as required by
the Rules of Court under Section 25 of Rule 132, said proof being merely a certi cation
issued by Consul Leovigildo Anolin of the Consulate General of the Philippines in New
York City, U.S.A. that the attached document is a xerox copy of the original birth
certi cate of Michael Jerome Butler issued by the Department of Health and
Rehabilitation Service, State of Florida, U.S.A. shown by Mr. Butler's mother, Mrs. Ethel
Butler. (Exhibit "1", "1-A")
After the lower court had ordered the records of the case forwarded to the
Supreme Court for automatic review on January 25, 1977, as stated earlier accused-
appellant led on August 25, 1978 a petition for mandamus in G.R. No. L-48786 entitled
"Michael J. Butler, minor, assisted by Lt. Commander Charles T. Riedel, U.S. Navy
(guardian ad litem) vs. Hon. Regino T. Veridiano, et al." praying that respondent judge be
ordered and commanded to set aside the judgment of conviction, to declare the
proceedings suspended and order the commitment of the accused pursuant to Article
193, P.D. 603. The petition was denied by Us for lack of merit in Our Resolution of
December 13, 1978.
Subsequently, however, the required proof was submitted as annexes to the
defense' Manifestation and Motion to Admit (Certi ed Copy of Certi cate of Live Birth)
led May 26, 1981 in the instant proceedings (See Records, pp. 137-141). In Our
Resolution of June 4, 1981, We admitted the certi ed copy of the Certi cate of Live
Birth of accused-appellant to form part of the evidence.
We do not agree with the reasoning of the trial court that the accused had not
invoked the privilege granted under Article 192 of P.D. 603 before its amendment
because the records manifestly show the vigorous plea of the accused for its
application not only in the Motion for New Trial but also in the Motion for
Reconsideration led by the accused (See pp. 237-248, 261-271, Records of Criminal
Case No. 2465, People vs. Michael J. Butler, CFI of Zambales, Branch I, Olongapo City).
We hold and rule that the lower court erred in not applying the provisions of Article 192
of P.D. 603 suspending all further proceedings after the court had found that the
accused had committed the acts charged against him, determined the imposable
penalty including any civil liability chargeable against him. The trial court should not
have pronounced judgment convicting the accused, imposing upon him the penalty of
death.
We likewise hold that the penalty of death was not justi ed. Since murder was
committed by the accused, under Article 248 of the Revised Penal Code, the crime is
punishable by reclusion temporal in its maximum period to death. The accused is a
minor and he is entitled to the privileged mitigating circumstance of minority which
reduces the penalty one degree lower and that is prision mayor in its maximum period
t o reclusion temporal in its medium period, or ten (10) years and one (1) day to
seventeen (17) years and four (4) months. (Article 68, Revised Penal Code) With one
aggravating circumstance, that of outraging at the corpse of the victim, the penalty
imposable is the maximum period which is reclusion temporal medium or fourteen (14)
years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.
Imposing the Indeterminate Sentence Law, the imposable penalty is eight (8) years and
one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal as maximum.
We nd in the records the Order of the Honorable Regino T. Veridiano II,
Presiding Judge of the Court of First Instance of Zambales, Branch I at Olongapo City,
committing the accused in the custody of the Commander, U.S. Naval Base, Subic Bay,
Philippines dated December 3, 1976, "(p)ending the nality of judgment rendered in the
above-entitled case, pursuant to the provisions of Para. 5, Article 13 of the Revised
Base Military Agreement." (p. 190, original records).cdrep

After the appeal had been submitted for decision pursuant to Our Resolution of
November 20, 1980, the accused-appellant, through counsel, led a Veri ed Motion to
Dismiss Case Under P.D. 603 praying that an order be issued "1) Dismissing the case
against accused-appellant; (2) Ordering the immediate discharge of accused-appellant;
(3) Granting accused-appellant such other relief as may be deemed just and equitable
in the premises," alleging:
"IV
"8) During his entire period of continued imprisonment in the BRIG, from
August 11, 1975 to the present, accused-appellant has behaved properly and has
shown his capability to be a useful member of the community. Documentary
proofs of these are as follows:
(a) O cial Report of the BRIG Commander, U.S.N., Subic Naval

Base, attached hereto as Annex "A" and made an integral part hereof;
(b) Progress Report led with this Honorable Court on November 6,
1980, by the Ministry of Social Services and Development, Olongapo City
Branch, found on pp. 113-114, of the Rollo, and attached hereto as Annex
"B" and made an integral part hereof. Thus:
'Based on the informations we gathered thru interviews

and observations, we would like to recommend to the Hon.
Supreme Court, that Michael Butler be given a chance to enjoy
his life fully outside the jail thus promoting his best interest
and welfare.'
(c) Progress Report with annexes, dated February 18, 1981, led on
March 4, 1981, by the Ministry of Social Services and Development,
Olongapo City Branch, found on pp. 128-131 of the Rollo, a xerox copy of
which is hereto attached as Annex "C" and made an integral part hereof.
Thus:
'In view of the fact that Mr. Michael Butler is now fully
rehabilitated, it is our recommendation that he be given an
opportunity to live happily and prove himself outside the Brig.'
(d) Diploma awarded by the University of La Verne, California,

U.S.A., to accused-appellant as evidence of his having completed a course
in Behavioral Science, on January 24, 1981, while he was a prisoner in the
BRIG. A xerox copy of said Diploma and that of the accompanying group
photograph showing a picture of accused-appellant taken on the occasion
of the commencement exercises, are hereto attached as Annexes "D" and
"D-1", respectively, and made integral parts hereof. The originals are found
on p. 133 of the Rollo. (The original of his transcript of record is also hereto
attached as Annex "E").
V
(9) Under the foregoing facts and circumstances, and while it is now a
legal and physical impossibility to place accused-appellant under the care and
custody of the Ministry of Social Services and Development which was what
should have been done in the beginning under P.D. 603, it is submitted that
accused-appellant's unfortunate situation could still be remedied and salvaged . .
. as justice now demands . . . and that is, by treating accused-appellant's
imprisonment in the BRIG, as equivalent to what should have been his full period
of commitment under the care and custody of the Ministry of Social Services and
Development. After all, and as said Ministry has reported, it has been regularly
visiting accused-appellant at his cell in the BRIG, and, is therefore, in a position to
attest to the exceptional behavior of accused-appellant."
Counsel for the People opposes the Motion to Dismiss on the following grounds:
1 — That the dismissal for lack of merit by this Court of the petition for mandamus
earlier led and docketed as G.R.L. 48788 barred the accused from raising or litigating
anew the issue of his minority; 2 — That an offender is not entitled to the bene t of
suspension of sentence if at the time of trial he could no longer qualify as a minor
offender for purposes of the rule on suspension of sentence because of his age, citing
the cases of People vs. Capistrano, 92 Phil. 127 and People vs. Estefa, 86 Phil. 104; and
3 — That under Section 192, P.D. 603, as amended, accused-appellant is not entitled to
the bene t of suspension because he was convicted of an offense punishable by death,
considering that the retroactive application to him of Articles 189 and 192, P.D. 603 as
amended by P.D. 1179 may not be assailed because said articles are procedural in
nature and there is no vested right in rules of procedure.
We find no merit to the opposition of the People. Our dismissal of the mandamus
petition in G.R. L-48788 which was for lack of merit due to the insu cient proof of
minority of the accused is no bar to raising the same issue in the instant automatic
review of the case after We had admitted the proper authentication of the accused's
birth certi cate "to form part of the evidence." (See Resolution of June 4, 1981, rollo).
The second ground is likewise without merit for the accused was below 21 years at the
time of his trial and even at the time judgment was promulgated to him on December 3,
1976 (he was then 19 years, 3 months and 3 days old). Neither does the third ground
hold water because P.D. 603 was amended on May 15, 1977, which was after the trial
and conviction already of the accused. The amendment passed during the pendency of
the appeal and it cannot adversely affect the right, privilege or bene t accorded to the
minor for suspension of the sentence under the original provision of Article 192 of P.D.
603, which reads as follows: LLjur
"Art. 192. Suspension of Sentence and Commitment of Youthful Offender.

— If after hearing the evidence in the proper proceedings, the court should nd
that the youthful offender has committed the acts charged against him the court
shall determine the imposable penalty, including any civil liability chargeable
against him. However, instead of pronouncing judgment of conviction, the court
shall suspend all further proceedings and shall commit such minor to the custody
or care of the Department of Social Welfare, or to any training institution operated
by the government, or duly licensed agencies or any other responsible person,
until he shall have reached twenty-one years of age or, for a shorter period as the
court may deem proper, after considering the reports and recommendations of the
Department of Social Welfare or the agency or responsible individual under
whose care he has been committed.
The youthful offender shall be subject to visitation and supervision by a
representative of the Department of Social Welfare or any duly licensed agency or
such other o cer as the Court may designate subject to such conditions as it
may prescribe."
P.D. 1179, Section 2 and made effective August 15, 1977 amended Articles 192
and 193 of P.D. 603 by adding as its penultimate paragraph the following:

"The bene ts of this article shall not apply to a youthful offender who has
once enjoyed suspension of sentence under its provisions or to one who is
convicted of an offense punishable by death or life imprisonment." (emphasis
supplied)
The lower court having erred in not suspending the sentence of conviction
against the accused-appellant who is entitled thereto under the original provisions of
Article 192 of P.D. 603, We agree with the defense plea that the "accused-appellant's
imprisonment in the BRIG, (be treated) as equivalent to what should have been his full
period of commitment under the care and custody of the Ministry of Social Services
and Development. After all, and as said Ministry has reported, it has been regularly
visiting accused-appellant at his cell in the BRIG, and is, therefore, in a position to attest
to the exceptional behavior of accused-appellant."
We have examined carefully the documentary proofs attached to the appellant's
Motion to Dismiss showing that from August 11, 1975 to the present, accused-
appellant has behaved properly and has shown his capability to be a useful member of
the community, and these are (a) O cial Report of the BRIG Commander, U.S.N., Subic
Naval Base; (b) Progress Report led with this Court on November 6, 1980 by the
Ministry of Social Services and Development, Olongapo City Branch; and (c) Progress
Report with annexes dated February 18, 1981 led on March 4, 1981 by the Ministry of
Social Services and Development; and (d) Diploma awarded by the University of La
Verne, California, U.S.A. showing completion of a course in Behavioral Science, on
January 24, 1981, while he was a prisoner in the BRIG. The Final Report prepared and
submitted by the Supervising Social Worker of the Ministry of Social Services and
Development Dated September 14, 1981 was subsequently led with Us and it states
as follows:
"FINAL REPORT
In compliance with the request of the Legal O ce, U.S. Naval Base, the
Ministry of Social Services and Development, Olongapo City Branch O ce
respectfully submits this nal report on the progress of the behavior of the above-
mentioned youth.
Michael Jerome Butler has been detained at the Naval Station Brig of the
U.S. Naval Base for a period of six years now. Since his detention, he has been
visited and was given counselling by the Social Worker.
While in con nement, he was assigned to the Brig's Library, Coffee Mess
and at present at the Administrative O ce. At the Administrative O ce, he is
responsible in keeping the records on le, typing various forms and
correspondence and forms reproduction. The present Brig O cer said that
Prisoner Butler works well requiring limited supervision as he sets and pursues
goals in an organized manner. He can be relief upon to complete an assigned
task in a timely manner. He also performs all janitorial work required for the
above-mentioned spaces.
He gets along very well with the Brig's Staff and other con nees and he
goes out of his way to help other con nees adjust to con nement and to
rehabilitate themselves.
He made use of his time in the Brig constructively and on January 29,
1981, he graduated at the La Verne College with the degree in Behavioral Science.
This was made possible thru his self-determination, diligence, courage and
interest. He also takes an active part in promoting health and physical tness to
all confinees as well as staff.
Con nee Butler is not only involved in assisting and helping his co-
con nee but also gives nancial support to a disabled person in the person of
Benjamin dela Cruz and to his (Butler) mother who is in United States.
Mr. Butler has been in-charge of the complete operation of the Brig's
Library and he kept it well stocked and completely clean and neat. He also taken
the duties of a Coffee Mess and had accomplished the job expertly.
He was given a task within the compound that only trusted con nee would
be given and had carried them with zest.
His personal appearance and uniforms are always in accord with the Navy
standard.
With the above ndings and Mr. Butler's desire to start life anew, this Final
Report is submitted.
Prepared and Submitted by:

(SGD.) ELOISA A. GARCIA
Supervising Social Worker
14 Sept. 1981
Noted by:
(SGD.) JUANITA B. LAFORTEZA
City Social Welfare Officer"
From these reports, We are fully satis ed that the accused-appellant has
behaved properly and has shown his capability to be a useful member of the
community. It is of no moment that the accused had not been speci cally committed
by the court to the custody or care of the Department of Social Welfare then, now the
Ministry of Social Services and Development, or to any training institution operated by
the government or duly-licensed agencies as directed under Article 192 of P.D. 603. At
any rate, the Commander of the U.S. Naval Base in Subic Bay to whom the accused was
committed in the Order of December 3, 1976 pending the nality of judgment rendered
in the case pursuant to the provisions of paragraph 5, Article 13 of the Revised Base
Military Agreement, may be considered a responsible person to whom the accused
may be committed for custody or care under the said Article 192 of P.D. 603. What is
important is the result of such custody and care showing his conduct as well as the
intellectual, physical, moral, social and emotional progress made by the accused as
shown in the favorable recommendation of the Supervising Social Worker of the
Ministry of Social Services and Development who had visited him regularly and given
counselling. We hereby approve the recommendation of the Ministry that "Michael
Butler be given a chance to enjoy his life fully outside the jail, thus promoting his best
interest and welfare" (Progress Report dated October 27, 1980); "that Mr. Michael
Butler is now fully rehabilitated, it is our recommendation that he be given an
opportunity to live happily and prove himself outside the Brig" (Progress Reported
dated February 18, 1981); "with the above ndings and Mr. Butler's desire to start life
anew, this Final Report is submitted." (Final Report dated September 14, 1981).
The dismissal of the case against the accused Michael Butler is, therefore,
meritorious and justi able. We hereby order his nal discharge therefrom. His nal
release, however, shall not obliterate his civil liability for damages in the amount of
P24,000.00 to the heirs of the victim which We hereby a rm. Such release shall be
without prejudice to the right for a writ of execution for the recovery of civil damages.
(Article 198, P.D. 603).
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the case against the accused-
appellant Michael J. Butler is hereby DISMISSED and We hereby order his nal
discharge from commitment and custody. The civil liability imposed upon him by the
lower court shall remain. prcd
Costs de oficio.
Motion To Dismiss granted.
SO ORDERED.
Fernando, C.J., Concepcion, Jr., De Castro, Melencio-Herrera, Plana, Escolin,
Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee, J., took no part.
Abad Santos, J., I reserve my vote.
Separate Opinions
AQUINO , J., dissenting:
I concur in the nding that Michael J. Butler, an American Negro serving as a

seaman in the U.S. Navy since February 3, 1975 (he was born on September 4, 1957),
committed murder on August 8, 1975 when he killed a hostess, Enriquita Alipo, 26, a
native of Bugasong, Antique, in her residence at 8 Fontaine Street, Olongapo City, as
proven by his extrajudicial confession (Exh. H) which was corroborated by evidence of
the corpus delicti (Exh. D).
That confession was admissible in evidence, although it was taken during
custodial interrogation, when Butler was not assisted by counsel, because he
voluntarily, knowingly and intelligently waived in writing his constitutional rights to have
counsel and to remain silent. Such waiver is allowed (Miranda vs. Arizona, 16 L. Ed. 2nd
684).
Butler's confession shows that the murder was quali ed by abuse of superiority.
It was not aggravated by the circumstance of outraging or sco ng at her person or
corpse. The trial court appreciated that aggravating circumstance because of the
testimony of Doctor Angeles Roxas, the medico-legal o cer, that Butler had anal
intercourse with the victim after her death.
Doctor Roxas based his conclusion on the fact that the victim's anus was partly
open and contained spermatozoa. He said that the anus would have completely closed
had the intercourse occurred while the victim was still alive.
On the other hand, Butler in his confession said:
"I rolled the girl over and made love to her. (By this I mean I engaged in
sexual intercourse with her from the rear.) My intention was to screw her in the
vagina. If I screwed her in the rectum, I didn't intend to.
"After we nished, I rolled over and went back to sleep again . . . When she
and I engaged in sexual intercourse, I reached a climax while my penis was in her.
(Exh. H)."
The trial court conjectured that "Butler not satis ed with a normal vaginal
intercourse demanded from the deceased (hospitality girl) an anal intercourse. Upon
being refused, the accused infuriated into a demonic frenzy, took hold of a saint
figurine, knocked his victim unconscious, smothered her to death with a pillow and after
she was dead, performed anal coitus with the dead person."
In my opinion the speculations of the medico-legal o cer and the trial judge that
there was posthumous sodomy are unwarranted. The prosecution is bound by Butler's
confession. He indicated therein that he had sexual intercourse with the victim from the
rear when she was alive and not after her death. He alleged that the squabble over his
ve-peso bill, which the victim took without his consent, was the cause of the ght
which he had with the victim.
Consequently, the circumstance of having outraged or scoffed at the victim's
corpse cannot be appreciated in this case.
The confession also proves that Butler did not intend to commit so grave a
wrong as that which he committed and that he was intoxicated at the time the killing
was perpetrated.
Taking into account the privileged mitigating circumstance of minority, the
penalty imposable on Butler should be lowered by one degree. He is entitled to an
indeterminate sentence.
He should be sentenced to a penalty of ve years of prision correccional
maximum as minimum to eleven years of prision mayor as maximum.
The trial court did not suspend the sentence of the accused although he was
below eighteen years of age when he killed the victim because he did not ask for a
suspended sentence and he had committed a capital offense.
On December 17, 1976, or a few days after the trial court promulgated its
judgment sentencing Butler to death, when he was already 19 years, three months and
thirteen days old, his counsel led a motion for new trial wherein he asked that he be
given a suspended sentence. The trial court denied the motion. That incident was
terminated in the lower court when it issued an order on May 3, 1977, denying Butler's
second motion for reconsideration.
Thereafter, the record of the case should have been elevated to this Court
without delay for automatic review of the death penalty. But, inexplicitly, the record was
received in this Court more than twenty-two months later, or on March 30, 1979. LibLex
Before the elevation of the record, Butler on August 25, 1978 led in this Court a
petition for mandamus wherein he prayed that the trial court be ordered to set aside its
judgment of conviction, to suspend the proceedings and to commit Butler to the
custody of the Department of Social Welfare or any correctional institution pursuant to
article 192 of the Child and Youth Welfare Code before it was amended by Presidential
Decree No. 1179.
This Court in its minute resolution of December 13, 1978 dismissed the petition
for lack of merit (Butler vs. Judge Veridiano II, L-48786).
It is incontrovertible that Butler was seventeen years, eleven months and four
days old when he killed the victim. Had he not contested the validity of his confession
(an exercise in futility) and had he pleaded guilty and asked for a suspended sentence,
he could have been entitled to the bene ts of article 192 of the Child and Youth Welfare
Code (applicable to minors below twenty-one years of age) before it was amended by
Presidential Decree No. 1179 which took effect on August 15, 1977. The text of article
192 is as follows:
"ART. 192. Suspension of Sentence and Commitment of Youthful
Offender. — If after hearing the evidence in the proper proceedings, the court
should nd that the youthful offender has committed the acts charged against
him the court shall determine the imposable penalty, including any civil liability
the court shall suspend all further proceedings and shall commit such minor to
the custody or care of the Department of Social Welfare, or to any training
institution operated by the government, or duly licensed agencies or any other
responsible person, until he shall have reached twenty-one years of age or, for a
shorter period as the court may deem proper, after considering the reports and
recommendations of the Department of Social Welfare or the agency or
responsible individual under whose care he has been committed.
"The youthful offender shall be subject to visitation and supervision by a

representative of the Department of Social Welfare or any duly licensed agency or
such other o cer as the Court may designate subject to such conditions as it
may prescribe."
Presidential Decree No. 1179 reduced the age of youthful offenders to less than
eighteen years (similar to the original provision of article 80 of the Revised Penal Code)
and amended article 192 by requiring that the youthful offender should apply for a
suspended sentence and that the suspension of the sentence should be allowed only
when public interest and the interest of the minor would be served thereby.
The amendment also provided that there should be no suspension of the
sentence of (1) one who once enjoyed the suspension of sentence under article 192, (2)
one who is convicted of an offense punishable by death or life imprisonment and (3)
one who is convicted for an offense by military tribunals. LexLib
The text of article 192, as amended by Presidential Decree Nos. 1179 and 1210
(effective on October 11, 1977) is as follows:
"ART. 192. Suspension of Sentence and Commitment of Youthful
Offender. — If after hearing the evidence in the proper proceedings, the court
should nd that the youthful offender has committed the acts charged against
him, the court, shall determine the imposable penalty, including any civil liability
the court upon application of the youthful offender and if it nds that the best
interest of the public as well as that of the offender will be served thereby, may
suspend all further proceedings and commit such minor to the custody or care of
the Department of Social Services and Development or to any training institution
operated by the government or any other responsible person until he shall have
reached twenty-one years of age, or for a shorter period as the court may deem
proper, after considering the reports and recommendations of the Department of
Social Services and Development or the government training institution or
responsible person under whose care he has been committed.
"Upon receipt of the application of the youthful offender for suspension of

his sentence, the court may require the Department of Social Services and
Development to prepare and submit to the court a social case study report over
the offender and his family.
"The Youthful offender shall be subject to visitation and supervision by a
representative of the Department of Social Services & Development or
government training institution as the court may designate subject to such
conditions as it may prescribe.
"The bene ts of this article shall not apply to a youthful offender who has
once enjoyed suspension of sentence under its provisions or to one who is
convicted of an offense punishable by death or life imprisonment or to one who is
convicted for an offense by the Military Tribunals."
But he assailed the admissibility of his confession under section 20, Article IV of
the Constitution. He even led a motion for new trial on the ground of newly discovered
evidence tending to prove that the victim was killed by her husband.
On September 24, 1981, Butler led in this Court a veri ed motion to dismiss the
case on the ground that he had been illegally deprived of his right to a suspended
sentence and to be committed to a correctional institution, as prescribed in the Child
and Youth Welfare Code.
It was alleged that since August 11, 1975 Butler has been con ned in the Subic
Bay Naval Station Brig (stockade). He even enrolled in one of the schools of the La
Verne College in the Subic Naval Base and finished the course in Behavioral Science. prLL
I dissent from the ponente's opinion that Butler should have been given a
suspended sentence and that, by reason of his good behavior while con ned in the
Subic Naval Base Stockade, he should now be released and discharged.
Butler has taken inconsistent positions. His ambivalence is the cause of his
having lost the right to ask for a suspended sentence. His repudiation of his confession
and his plea of not guilty are inconsistent with his contention that he should have been
given a suspended sentence, a remedy which presupposes that he is guilty.
Because Butler is now twenty- ve years old, the question of whether he is
entitled to a suspended sentence has become moot and academic. He is no longer a
juvenile offender.
He should be made to serve his sentence of ve years of prision correccional as
minimum to eleven years of prision mayor as maximum. The most that can be done for
him is to give him full credit for his con nement in the stockade, a period already
exceeding the minimum of his indeterminate sentence, and to give him a conditional
pardon or release him on parole.
This Court has ruled in several cases that where the accused was below eighteen
years at the time he committed a crime but he was over eighteen years at the time of
his trial or conviction, he is not entitled to a suspended sentence (People vs. Casiguran
L-45387, November 7, 1979, 94 SCRA 244, 249).
If at the time the case is decided by this Court, the accused is no longer a minor,
with more reason, he is not entitled to a suspended sentence.
Thus, where on May 14, 1963, when the robbery with homicide was committed,
Teresita Nolasco, one of the accused, was 15 years and ve months old, and the trial
court did not suspend her sentence but convicted her, this Court in its decision dated
December 19, 1970, a rmed the judgment of conviction and imposed on her the
proper penalty after giving her the bene t of the privileged mitigating circumstance of
minority (People vs. Espejo, L-27708, 36 SCRA 400, 425. See People vs. Parcon, L-
39121, December 19, 1981, 110 SCRA 425; People vs. Labrinto, L-43528-29, October
10, 1980, 100 SCRA 299; People vs. Capistrano, 92 Phil. 125; People vs. Celespara, 82
Phil. 399; People vs. Nuñez, 85 Phil. 448). prLL
Makasiar, J., I join the dissent of Justice Aquino.

Footnotes
1. t.s.n., pp. 2, 4-5, 7, July 21, 1976.

2. t.s.n., pp. 207-209, 210-213, 218, July 14, 1976.
3. t.s.n., pp. 215-217, July 14, 1976.
4. t.s.n., pp. 90-91, 97-98, 100-102, 121-122, 125, May 5, 1976.
5. t.s.n., pp. 255-258, 260-261, 264, 276, 293, July 28, 1976; t.s.n., pp. 10-11, 12-14, 17-22, May
10, 1976; t.s.n., pp. 37-38, 39-42, May 12, 1976.
6. t.s.n., pp. 3-4, 8-16, 18-21, 26-31, May 3, 1976.
7. People vs. Molledo, L-34248, Nov. 21, 1978, 86 SCRA 66.
8. 384 U.S. 436.

9. Accused-Appellant's Brief, pp. 15-17.
10. Accused-Appellant's Brief, pp. 21-22.
11. t.s.n., pp. 25-27, Sept. 22, 1976.

12. t.s.n., pp. 7-9, Sept. 22, 1976.
13. t.s.n., pp. 29-31, Sept. 22, 1976.
14. Plaintiff-Appellee's Brief, p. 24.
15. 51 Phil. 385.

16. 30 SCRA 352.
17. People vs. Apduhan, 24 SCRA 798.
18. People vs. Cabiling, 74 SCRA 285, pp. 303-304.

EN BANC
[G.R. No. L-36941. June 29, 1984.]
THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. RAFAEL

SAYLAN alias PAEL , accused-appellant.

Federico Y . Alikpala, Jr. for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACTS AND CONCLUSION OF

THE TRIAL COURT ARE ENTITLED TO GREAT RESPECT. — The claim of appellant that
the sexual intercourse was mutually agreed is utterly incredible. If it were true that Mrs.
Agno consented to have coitus with the appellant, her conduct thereafter de es
understanding because it is contrary to reason and it has not been shown that Mrs.
Agno, a school teacher, was bereft of common sense. For if it was true that the sexual
act was indeed mutually desired and performed why did she complain not only to her
husband but also to the authorities? An affair such as that claimed by the appellant is
carried out in a discreet manner. On the other hand, the version of the complainant his
indicia of credibility. For her version based her shame to a small community and her
exposure was necessary only because she had to reveal the truth. No, we simply cannot
believe the appellant's version. We have said above that ndings and conclusions of the
trial court are entitled to great respect.
2. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; SUPERIORITY AND
NOCTURNITY, NOT PRESENT IN CASE AT BAR. — The trial court disregarded superiority
because it "is inherent in the crime of rape or is absorbed in the element of force." It
also did not consider nocturnity "there being no evidence that the accused purposely
sought it to facilitate the commission of this rape."
3. ID.; ID.; DESPOBLADO, APPRECIATED IN CASE AT BAR. — Despoblado was
present according to the trial court because: "The accused dragged the offended party,
at the point of a dagger, to the carabao, trail, about 10 meters from the junction, but 40
to 50 meters below to better attain his purpose without interference, and to better
secure himself from detection and punishment (U.S. vs. Vitug, 17 Phil. 1). Even the
junction where the two children were left is already 400 meters from the nearest house.
While there may be occasional passersby, this does not destroy its being an
uninhabited place (People vs. Bagug, 52 Phil. 87). We hold that the trial court for the
reasons stated correctly held that the crime was committed in an uninhabited place.
4. ID.; ID.; IGNOMINY, PRESENT IN CASE AT BAR. — The trial court held that
there was ignominy because the appellant used not only the missionary position, i.e.
male superior, female inferior, but also "The same position as dogs do" i.e., entry from
behind. The appellant claims there was no ignominy because "the studies of many
experts in the matter have shown that this 'position' is not novel and has repeatedly and
often been resorted to by couples in the act of copulation." This may well be if the
sexual act is performed by consenting partners but not otherwise.
5. ID.; ID.; REITERACION, NOT ATTENDANT IN CASE AT BAR. — The trial court
also held that "there is no reiteracion because one of the offenses, namely Robbery in
Band, for which the accused has been penalized, was committed after the commission
of this rape case, and the penalty imposed on the other offense of Frustrated Homicide,
is lighter than the penalty for rape.
6. ID.; ID.; DISREGARD OF RANK, NOT PRESENT IN CASE AT BAR. — Although
not alleged in the complaint, the trial court stated that the offense was aggravated by
disregard of rank because it was a fact known to the appellant that Mrs. Agno was a
school teacher. The appellant claims that this circumstance cannot be assigned to him
because there was no deliberate intent to offend or insult the rank of Mrs. Agno. The
Solicitor General agrees with the appellant for the same reason.
DECISION
ABAD SANTOS , J : p
This is an automatic review of the decision of the defunct Court of First Instance
of Misamis Oriental in Criminal Case No. 52-M which imposed the death penalty.
RAFAEL SAYLAN was accused of the crime of rape in the sworn complaint of
Eutropia Agno said to have been committed as follows:
"That on or about the 23rd day of January, 1972, at more or less 7:00
o'clock in the evening, at Sitio Craser, Malinao, Gingoog City, Philippines and
within the jurisdiction of this Honorable Court, the abovenamed accused, with
deliberate intent to have sexual intercourse, did then and there wilfully, unlawfully
and criminally with the use of a dagger, force and intimidate Eutropia Agno y
Arcay, to remove her pantie and to lay down on the ground and with the use of a
dagger, force and intimidation succeeded in having sexual intercourse with
Eutropia Agno y Arcay, a woman of good reputation and against her will. That the
commission of the foregoing offense was attended by the aggravating
circumstances of: abuse of superior strength, nighttime, uninhabited place,
ignominy and reiteracion." (Expediente, p. 27.)
The accused entered a plea of "not guilty" and after trial the court rendered the
following judgment:
"WHEREFORE, the Court nds the accused guilty beyond reasonable doubt
of the crime of rape, penalized under Article 335 of the Revised Penal Code as
amended by Republic Act No. 4111, and the commission of the offense having
been attended by three aggravating without any mitigating circumstance, hereby
sentences him to suffer the supreme penalty of death, to indemnify the offended
party in the amount of Six Thousand Pesos (P6,000.00), and to pay the costs. In
view of the fact that the offended party is a married woman, aside from the fact
that she has not become pregnant as a result of the commission of the rape, the
Court makes no pronouncement as to acknowledgment and support of offspring.
(Id., p. 64.)
The factual version of the prosecution is summarized in the People's brief as

follows:
"The complaining witness, Eutropia A. Agno, a married woman and a
resident of Barrio Malinao, Gingoog City, was a classroom teacher of the Malinao
Elementary School (pp. 2, 3, tsn., Feb. 22, 1973).
In the afternoon of January 23, 1971, Eutropia went to the public market in
Gingoog City to buy foodstuffs for her family and thereafter, she proceeded to the
store of her mother to fetch her ve-year old daughter Nilsonita (p. 4, tsn., Id.). On
their way home, Eutropia and Nilsonita boarded a passenger jeepney and while
inside the vehicle she (Eutropia) noticed that the other passengers were Rudy
Gonzales, a grade I pupil of the Malinao Elementary School, the appellant, Rafael
Saylan, and a couple whom she did not know (pp. 5, 6, tsn., Id.). The jeepney went
only as far as Malinas citrus farm because the road to Barrio Malinao was not
passable by vehicles (p. 5, tsn., Id.). It was almost 6:30 o'clock in the evening
when the jeepney arrived at the Malinas citrus farm and so all the passengers
alighted and had to walk all the way to Barrio Malinao which was about three and
a half kilometers away (p. 5, tsn., Id.). After walking some distance and upon
reaching a junction, the couple separated from the group and took the road
leading to their house while Eutropia's group took the opposite road (p. 9, tsn., Id.).
The appellant, however, joined the group of Eutropia and when they reached the
place where the road was plain, appellant who was then walking side by side with
Eutropia suddenly pulled out a dagger about eight inches long and pointing it at
the latter said, Do not shout, Nang, I will kill you! (pp. 11, 12, tsn., Id.). At this
juncture, appellant placed his right arm around the neck of Eutropia with the
dagger pointed at her left breast (p. 12, tsn., Id.), after which he dragged Eutropia
at some distance. When they reached the junction of the trail for men and a trail
for carabaos, he ordered everybody to stop and told the children (Nilsonita and
Rudy Gonzales) to stay behind and threatened to kill them if they persisted in
following them (pp. 17, 18, tsn., Id.). Thereafter, appellant again dragged Eutropia
by her hand and brought her towards a creek near a coconut tree which was
about ve meters away from where Nilsonita and Rudy Gonzales were (pp. 14, 15,
16, tsn., Id.). The appellant then ordered Eutropia to remove her panty which she
refused at rst, but appellant threatened to kill her, so she removed her panty after
which appellant ordered her to lie down (pp. 18, 19, tsn., Id.). Subsequently,
appellant placed himself on top of the victim and inserted his penis into her
vagina and succeeded in having sexual intercourse with her by moving his
buttocks up and down (pp. 20, 21, tsn., Id.).
"After the rst sexual act, appellant ordered Eutropia to standup which the
latter helplessly and grudgingly followed (p. 23, tsn., Id.). Appellant again inserted
his penis into her vagina and then performed a push and pull movement (pp. 23,
24, 25, tsn., Id.). Not satis ed with the second intercourse, appellant ordered
Eutropia to lie down again preparatory to a third intercourse (p. 26, tsn., Id.).
Appellant again performed the sexual act with her (pp. 26, 27, tsn., Id.).
"After the third intercourse, appellant ordered Eutropia to stand up and then
he bent her body downwards with her hands and knees resting on the ground (p.
28, tsn., Id.). When the latter was already in this position, appellant then placed
himself behind her, inserted his penis into her vagina and executed a push and
pull movement in the dog's way of sexual intercourse (pp. 27, 28, tsn., Id.).
"After performing this uncommon way of sexual intercourse, appellant

ordered Eutropia to lie down again which the latter reluctantly obeyed because
appellant's dagger was always pointed at her and thereafter he had carnal
knowledge of her for the fifth time (pp. 29, 30, tsn., Id.).
"After the fth intercourse, and after satisfying his sexual lust, appellant
asked Eutropia if she will tell her husband what he did to her and the latter
answered, 'I will not tell" (p. 31, tsn., Id.). But she only said this so that appellant
would let her go home (p. 33, tsn., Id.).
"Afterwards, Eutropia and appellant returned to the place where the

children were left and upon arriving thereat, they found Nilsonita (Eutropia's
daughter) asleep with Rudy seated dozing beside her (pp. 32, 33, tsn., Id.).
Nilsonita who was sleeping was carried by the appellant and then they all
proceeded to Malinao (pp. 33, 34, tsn., Id.).
"After walking some distance, Eutropia saw the house of her friend "Ben"
and upon approaching the said house, she shouted, 'Ben, Ben, please give me hot
water' (p. 34, tsn., Id.). Upon hearing her voice, Ben, who was still awake at the
time, opened the door of his house and allowed Eutropia to come up (p. 34, tsn.,
Id.). Eutropia immediately went upstairs and went straight to the room of Ben as
she was feeling very bad (p. 34, tsn., Id.). Appellant, who was then carrying
Nilsonita, and Rudy Gonzales, were also allowed to go upstairs (p. 35, tsn., Id.).
Meanwhile, Eutropia requested Ben to fetch her husband (p. 35, tsn., Id.).
"When Eutropia woke up between 9:00 and 10:00 o'clock that evening, her
husband was already there (p. 36, tsn., Id.). She then asked him whether the
appellant was still around, and in reply, he told her that appellant had already left
(p. 37, tsn., Id.). Eutropia then told her husband that she was raped by the
appellant (p 37, tsn., Id.). Upon learning of the dastardly act committed by the
appellant, he advised his wife to submit herself to a medical examination (p. 37,
tsn., Id.).
"The following morning, the offended party was brought to the office of the
City Health Department of Gingoog City where she was examined by Dr. Ireneo O.
Pascual, who after conducting a thorough physical examination, issued a medical
certificate with the following findings, to wit:
'(1) Multiparous.
'(2) Presence of viscid whitish secretions at vaginal fornix.

'(3) Microscopic examination of secretions reveals epithelial cells, but
no spermatozoa identified.'(pp. 10, 11, 12, t.s.n., Feb. 24, 1973; Exh. "A").
"Rudy Gonzales, a grade I pupil of the Malinao Elementary School and one
of the witnesses for the prosecution, testi ed that he met Mrs. Eutropia Agno in
the afternoon of January 23, 1972 at the public market of Gingoog City buying
foodstuffs for her family (pp. 2, 3, tsn., Feb. 26, 1973). On their way back to Barrio
Malinao, they boarded a passenger jeepney and while he was inside the vehicle,
he noticed that the other passengers aside from Mrs. Agno, her daughter, and
himself were the appellant and a couple whose names he did not know (p. 4, tsn.,
Id.). The jeepney, however, could only travel up to the Malinas Citrus farm and so
they had to walk all the way to Barrio Malinao (p. 4, tsn., Id.) After walking some
distance and upon reaching a trail for carabaos, the appellant suddenly pulled a
dagger and placed his arms around the neck of Mrs. Agno and then dragged her
towards the carabao trail (pp. 4, 5, tsn., Id.). Meanwhile, he and Nilsonita were left
behind and they fell asleep because it took a long time for the appellant and Mrs.
Agno to come back for them (p. 5, tsn., Id.). When Mrs. Agno and the appellant
returned, he was already awake while Nilsonita was still asleep and so appellant
had to carry her in going home to Malinao (p. 6, tsn., Id.). After walking some
distance, Mrs. Agno saw the house of Mang Ben and because she was feeling
bad, they all went to the house of Mang Ben where Mrs. Agno spent the night (p.
7, tsn, Id.). Afterwards, he and the appellant left the house of Mang Ben and then
they proceeded to his house at Malinao where both of them slept (pp. 7, 21, tsn,
Id.)." (At pp. 2-8.)
The accused did not deny having had sexual intercourse with Mrs. Agno; in fact
he admitted that he copulated with her for three successive times in the early evening
of January 23, 1972, but he claimed that it was with her consent. Accordingly, he now
claims that:
"I. THE COURT A QUO ERRED IN FINDING THAT THE SEXUAL
INTERCOURSE HAD BEEN COMMITTED AGAINST THE WILL AND CONSENT OF
THE COMPLAINANT.
"II. THE COURT A QUO ERRED IN FINDING THAT AGGRAVATING
CIRCUMSTANCES HAD ACCOMPANIED THE COMMISSION OF THE OFFENSE."
(Brief, p. 5.)
The appeal must fail for the reasons stated hereunder.

This is a typical rape case. Only the participants could directly testify on the
alleged sexual abuse and the accused alleges consent on the part of the complainant.
The question of credibility arises and under the circumstances We have to rely heavily
on the determination made by the trial judge who observed the demeanor of the
witnesses while before Us is only the cold transcript of what they said.
We accept the conclusions and ndings of fact of the trial court that the
complainant was in fact raped by the appellant. There is no fact or circumstance in the
record which will justify a different action.
The claim of the appellant that the sexual intercourse was mutually agreed is
utterly incredible. If it were true that Mrs. Agno consented to have coitus with the
appellant, her conduct thereafter de es understanding because it is contrary to reason
and it has not been shown that Mrs. Agno, a school teacher, was bereft of common
sense. For if it was true that the sexual act was indeed mutually desired and performed
why did she complain not only to her husband but also to the authorities? An affair such
as that claimed by the appellant is carried out in a discreet manner. On the other hand,
the version of the complainant has indicia of credibility. For her version bared her
shame to a small community and her exposure was necessary only because she had to
reveal the truth. No, We simply cannot believe the appellant's version.
We have said above that the ndings and conclusions of the trial court are
entitled to great respect. In nding the appellant guilty, this is what the court a quo said
in part:
"The testimony of the accused is incredible. When he told his love to the
offended party for the rst time, they were only two in the latter's house. He had
more time with her then. She refused him because she is married. He tried for the
second time. He was again refused because she is married. It is unthinkable and
highly improbable that on the evening of January 23, 1972, after only three
minutes, the offended party would rush to accept his love and go to the extent of
thanking him for his considering her daughter as his own, unless she was
coerced, threatened, forced and intimidated.
"It is highly improbable for a school teacher with several children to

exchange her husband only 40 years old and with a good means of livelihood for
one whom she does not know and whom she has observed as doing nothing
except to play basketball. It is subversive of the traits, character and nature of
Filipino women to say that the offended party, a school teacher and a girl scout
accepted the love of a man who is good for nothing and surrendered her whole
body and virtue to him after an accidental courtship of only three minutes. The
offended party is an unsophisticated and conservative woman, xing her hair the
old fashion way. She does not apply make-up on her face, and her dress is up to
her knees. This makes the pretensions of the accused all the more incredible."
(Expediente, p. 59.)
The complaint alleges the following aggravating circumstances: abuse of

superior strength, nocturnity, despoblado, ignominy, and reiteracion.
The trial court disregarded superiority because it "is inherent in the crime of rape
or is absorbed in the element of force." It also did not consider nocturnity "there being
no evidence that the accused purposely sought it to facilitate the commission of this
rape." (Id., p. 63.)
Despoblado was present according to the trial court because: "The accused
dragged the offended party, at the point of a dagger, to the carabao trail, about 10
meters from the junction, but 40 to 50 meters below to better attain his purpose
without interference, and to better secure himself from detection and punishment (U.S.
vs. Vitug, 17 Phil. 1). Even the junction where the two children were left is already 400
meters from the nearest house. While there maybe occasional passersby, this does not
destroy its being an uninhabited place. (People vs. Bangug, 52 Phil. 87)." ( Id., p. 62.) We
hold that the trial court for the reasons stated correctly held that the crime was
committed in an uninhabited place.
The trial court held that there was ignominy because the appellant used not only
the missionary position, i.e. male superior, female inferior, but also "The same position
as dogs do" i.e., entry from behind. The appellant claims there was no ignominy
because "The studies of many experts in the matter have shown that this 'position' is
not novel and has repeatedly and often been resorted to by couples in the act of
copulation." (Brief, p. 24.) This may well be if the sexual act is performed by consenting
partners but not otherwise.
The trial court also held that "there is no reiteracion because one of the offenses,
namely Robbery in Band, for which the accused has been penalized, was committed
after the commission of this rape case, and the penalty imposed on the other offense
of Frustrated Homicide, is lighter than the penalty for rape." (Id., p. 63.)
Although not alleged in the complaint, the trial court stated that the offense was
aggravated by disregard of rank because it was a fact known to the appellant that Mrs.
Agno was a school teacher. The appellant claims that this circumstance cannot be
assigned to him because there was no deliberate intent to offend or insult the rank of
Mrs. Agno. The Solicitor General agrees with the appellant for the same reason.
The judgment of the trial court is in accordance with the facts and the law but it
cannot be affirmed completely because of the lack of the necessary number of votes.
WHEREFORE, the judgment under review is modi ed in the sense that the
appellant shall suffer the penalty of reclusion perpetua instead of death and the
indemnity to be paid to the offended party is increased to P20,000.00. Costs against
the appellant.
SO ORDERED.
Fernando, C .J ., Makasiar, Aquino, Concepcion, Jr ., Guerrero, Plana, Escolin,
Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ ., concur.
Teehankee, J ., took no part.
Melencio-Herrera, J ., is on official leave.

SECOND DIVISION
[G.R. No. 132470. April 27, 2000.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . FERNANDO

SULTAN y LATO , accused-appellant.

Public Attorney's Office for accused-appellant.
SYNOPSIS
The evidence for the prosecution was based principally on the testimony of
complaining witness Juditha M. Bautista. She declared that on June 2, 1997 at 9:00
o'clock in the evening, she was accosted by someone, later identi ed as accused-
appellant, who pointed a sharp instrument at her neck and announced a "hold-up." After
taking her valuables, he took her to a house where she was molested. In her effort to
release herself she "agreed" to elope with him. Perhaps convinced that she was going to
run away with him, he allowed her to go home to get her things. However, Juditha lost no
time in narrating her harrowing experience to her sister who immediately informed their
brother, SPO1 Fernando M. Bautista, of what happened. He then advised Juditha to go
back to the house of accused-appellant for the "planned elopement" so that he and his
companions could stage an arrest. As planned, the accused was arrested and was brought
to the barangay hall. He was later transferred to the police headquarters. At the police
station the authorities investigated Juditha who readily identi ed accused-appellant as her
robber and rapist. An Information for the special complex crime of robbery with rape was
led against accused-appellant. But accused-appellant brushed aside the charge and
claimed that it was simply a sexual congress of consenting adults. Finding the complaining
witness' version as more credible, the trial court convicted accused-appellant and
sentenced him to reclusion perpetua. In this appeal, accused-appellant contended that
there was no convincing proof that he was guilty of the crime charged.
According to the Supreme Court, the testimony of complainant as to the taking of
her cash and valuables by accused-appellant was evidence enough to sustain a conviction
for robbery considering that it found no fault in the pronouncement of the trial court that
her testimony was credible. The record showed that the prosecution had established that
appellant committed both robbery and rape with the intent to take personal property of
another preceding the rape. The Decision of the court a quo nding accused-appellant
guilty of the special complex crime of robbery with rape and sentencing him to reclusion
perpetua was a rmed with the modi cation that the amount of P50,000.00 be added as
civil indemnity in conformity with prevailing jurisprudence.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; TESTIMONY OF COMPLAINANT; WHEN ENOUGH

TO SUSTAIN CONVICTION; CASE AT BAR. — The testimony of complainant as to the taking
of her cash and valuables is evidence enough to sustain a conviction for robbery
considering that the Court nds no fault in the pronouncement of the trial court that her
testimony is credible. The persuasive value of the declaration of credibility is bolstered by
this Court's own scrutiny of the testimony of complainant showing her answers to the
incisive questions propounded to her to be firm and straightforward.
2. CRIMINAL LAW; ROBBERY; ELEMENTS; PRESENT IN CASE AT BAR. — While
there may have been no effort on the part of complainant to retrieve her personal
belongings from accused-appellant even after all threats had ceased, her failure to do so
does not under the circumstances necessarily dispute the commission of robbery. Article
293 of the Revised Penal Code provides that "[a]ny person who, with intent to gain, shall
take any personal property belonging to another, by means of violence against or
intimidation of person, or using force upon anything, shall be guilty of robbery." When
accused-appellant divested complaining witness of her personal belongings he committed
the crime of robbery. All the elements necessary for its execution and accomplishment
were present, i.e., (a) personal property belonging to another, (b) unlawful taking, (c) intent
to gain, and (d) violence or intimidation. It is therefore immaterial that she failed to ask for
the return of her personal things. Moreover, her actuation could only be fairly interpreted to
mean that she did not want accused-appellant to be suspicious of her moves.
3. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ASSESSMENT BY
TRIAL COURT, ACCORDED HIGHEST RESPECT. — The prosecution for rape in the instant
case is based solely on the testimony of complaining witness. Thus, the basic issue that
must be addressed is her credibility. Doctrinally, the trial court's assessment of the
credibility of witnesses is accorded the highest respect and weight by the appellate
courts. It is normally sustained unless material facts and circumstances have been
overlooked, misunderstood or misapplied.
4. CRIMINAL LAW; RAPE; WHEN COMMITTED; CASE AT BAR. — Accused-
appellant might not have employed force in committing the rape but he de nitely used
intimidation which was su cient to make complainant submit herself to him against her
will for fear of life and personal safety. Accused-appellant grabbed her and dragged her to
his house. He was armed with an ice pick and threatened to kill her with it if she did not
follow his wishes. She was naturally intimidated and her intimidation started from that
moment on, and subsisted in her mind when the rape was started until its consummation.
Intimidation is subjective so it must be viewed in the light of the victim's perception and
judgment at the time of the commission of the crime, and not by any hard and fast rule. It
is enough that it produces fear, as in the present case, fear that if the complainant does
not yield to the bestial demands of accused-appellant something would happen to her at
that moment or even thereafter. Thus, it is irrelevant that she was not certain when cross-
examined that accused-appellant was armed with an ice pick when the rape commenced;
it was enough that he was holding something that looked like an ice pick which
engendered fear in her. With fear instilled in her mind, it is understandable that she did not
offer any resistance since any attempt to do so would only be futile. Such failure on her
part should not be taken to mean consent so as to make her a willing participant in the
sexual confrontation. TCDHIc
5. ID.; ROBBERY WITH RAPE; WHEN COMMITTED; PROPER PENALTY; CASE AT

BAR. — The Information charges accused-appellant with the special complex crime of
robbery with rape. The record shows that the prosecution has established that he
committed both robbery and rape with the intent to take personal property of another
preceding the rape. Under Art. 294, par. (1), of the Revised Penal Code, ". . . [a]ny person
guilty of robbery with the use of violence against or intimidation of persons shall suffer: 1.
The penalty of reclusion perpetua to death, . . . when the robbery shall have been
accompanied by rape . . ." Complaining witness Juditha Bautista was raped twice on the
occasion of the robbery. In this regard, this Court had declared in some cases that the
additional rapes committed on the same occasion of robbery would not increase the
penalty. There were also cases, however, where this Court ruled that the multiplicity of
rapes committed could be appreciated as an aggravating circumstance. Finally, in the
recent case of People v. Regala, (G.R. No. 130508, April 5, 2000) the Court held that the
additional rapes committed should not be appreciated as an aggravating circumstance
despite a resultant "anomalous situation" wherein robbery with rape would be on the same
level as robbery with multiple rapes in terms of gravity. The Court realized that there was
no law providing for the additional rape/s or homicide/s for that matter to be considered
as aggravating circumstance. It further observed that the enumeration of aggravating
circumstances under Art. 14 of the Revised Penal Code is exclusive, unlike in Art. 13 of the
same Code which enumerates the mitigating circumstances where analogous
circumstances may be considered, hence, the remedy lies with the legislature.
Consequently, unless and until a law is passed providing that the additional rape/s or
homicide/s may be considered aggravating, the Court must construe the penal law in favor
of the offender as no person may be brought within its terms if he is not clearly made so
by the statute. Under this view, the additional rape committed by accused-appellant is not
considered an aggravating circumstance. Applying Art. 63, par. (2), of the Revised Penal
Code which provides that "[i]n all cases in which the law prescribes a penalty composed of
two indivisible penalties, the following rules shall be observed in the application thereof . . .
2. [w]hen there are neither mitigating nor aggravating circumstances in the commission of
the deed, the lesser penalty shall be applied," the lower penalty of reclusion perpetua
should be imposed on accused-appellant.
DECISION
BELLOSILLO , J : p
FERNANDO SULTAN y LATO appeals from the Decision of the trial court nding
him guilty of the special complex crime of robbery with rape, sentencing him to reclusion
perpetua and ordering him to return to his victim one (1) wrist watch, one (1) ring, one (1)
pair of earrings, and one (1) necklace valued at P1,600.00, P850.00, P500.00, and
P2,100.00, respectively, and cash of P130.00; otherwise, to pay P5,180.00 if restitution
be no longer feasible. He was further ordered to pay P50,000.00 for moral damages. 1 cdphil
The evidence for the prosecution was based principally on the testimony of
complaining witness Juditha M. Bautista. According to her, on 2 June 1997 at 9:00
o’clock in the evening she was on her way home from a visit to her cousin Cristina
Mansilongan in Novaliches, Quezon City; when she passed the dark alley in her cousin's
compound she was accosted by someone, later identi ed as accused-appellant
Fernando L. Sultan, who pointed a sharp instrument at her neck and announcing it was a
"hold-up." He grabbed her and brought her to a house along the alley which turned out to
be his. Once inside the house, he made her sit down. He offered her a drink; she refused
it. Then he started divesting her of her watch, ring, earrings, and necklace the values of
which are now re ected in the Decision of the court a quo, and her cash of P130.00. After
taking her valuables, he started kissing her on the lips and cheeks. As if to discourage
him from making further sexual advances, she told him that she was married with two (2)
children but accused-appellant was not dissuaded from pursuing his intentions. While
pointing an ice pick at her he ordered her to undress. She acceded for fear that he would
kill her as she was under constant threat. After she had completely undressed, accused-
appellant ordered her to lie down on the oor. He then kissed her again from head down.
Still she could not resist him because of fear. He went on top of her, held her two (2)
hands on the level of her head, spread her thighs and inserted his penis into her vagina.
The coital encounter lasted for ten (10) to fifteen (15) minutes. 2
After satisfying his lust, he ordered her to put on her bra and panty, tied her hands
and went out of the room to smoke. After ten (10) to fteen (15) minutes, he came back,
untied her, and once again with threat and intimidation sexually abused her. Thereafter, he
tied her hands to a protruding piece of wood in the room and held her in his arms. She
cried. He told her that he loved her and that he would answer for what he had done to her.
They talked until noon the following day without sleeping. 3
In her effort to release herself from his clutches she "agreed" to elope with him.
Perhaps convinced that she was going to run away with him, he allowed her to go home
at noon to get her things. She was then staying with her cousin Nita del Rosario, at No. 9
Sta. Eleuteria Street, Gulod, Novaliches, Quezon City. He even accompanied her to the
highway to get a ride home. 4
When Juditha arrived home she saw her sister Antonette in the house. She was not
actually residing there but went there only that day. Juditha lost no time in narrating her
harrowing experience to her sister. Immediately Antonette called her brother SPO1
Fernando M. Bautista who resides in Bulacan. 5 SPO1 Bautista arrived at around 3:00 or
4:00 o'clock in the afternoon and was told about what happened. 6 He then advised
Juditha to go back to the house of accused-appellant for the "planned elopement" so that
he and his two (2) companions 7 could stage an arrest. 8
On their way to the house of accused-appellant, Juditha rode in a passenger jeep
with her sister Antonette and cousin Nita while her brother and his two (2) companions
followed them on board an XLT Van. Juditha alighted near the house of accused-
appellant while her companions waited for her and accused-appellant along the highway.
When she arrived at accused-appellant's place, he was already waiting for her outside the
store nearby. They went inside his house and came out twenty (20) minutes later. They
boarded a passenger bus while SPO1 Bautista and his companions trailed them. When
the bus reached the corner of Forest Hill Subdivision, Gulod, Novaliches, it slowed down
because of the tra c thus making it easier for SPO1 Bautista and his companions to
board the bus. Upon seeing her brother and his companions, Juditha motioned to them.
They immediately approached accused-appellant and boxed him before they could arrest
him. The other passengers of the bus joined in hitting accused-appellant. This caused a
commotion in the bus. Some policemen who were in the barangay hall across the street
saw the disturbance. They boarded the bus to nd out what happened. Then they
assisted in facilitating the arrest of accused-appellant and brought him to the barangay
hall. He was later on transferred to the police headquarters for further interrogation. LLphil
At the police station the authorities investigated Juditha who readily identi ed
accused-appellant as her robber and rapist. The police then requested for physical
examination to nd signs of sexual abuse. Medico-Legal Inspector Dr. Dennis G. Bellin
found no external signs of violence although there was a deep fresh laceration at 5
o'clock position in Juditha's hymen. He also discovered other lacerations, deep healed, at
3, 7 and 9 o’clock positions. Dr. Bellin also observed that Juditha’s external vaginal ori ce
offered moderate resistance to his examining index nger and virgin-sized vaginal
speculum. She was no longer a virgin when the alleged rape transpired. 9
On 5 June 1997 an Information 1 0 for the special complex crime of robbery with
rape was filed against accused-appellant Fernando Sultan y Lato, docketed as Crim. Case
No. Q-97-71353. But accused-appellant brushed aside the charge and claimed that it
was simply a sexual congress of consenting adults.
Finding the complaining witness' version more credible, the trial court, on 5 June
1998, found accused-appellant guilty as charged and sentenced him to reclusion
perpetua. He was ordered to return to Juditha Bautista one (1) wrist watch valued at
P1,600.00, one (1) ring worth P850.00, one (1) pair of earrings worth P500.00, one (1)
necklace worth P2,100.00 and cash in the amount of P130.00, or the payment of
P5,180.00 if return was not possible. Accused-appellant was further directed to pay his
victim P50,000.00 for moral damages. 1 1
In this appeal, accused-appellant submits that there is no convincing proof that he
is guilty of the crime charged.
As to the robbery, he contends that the testimony of complainant that she was
robbed of her personal valuables should not be given weight and credence as (a) no
evidence was presented in court to prove her claim and that (b) if he had really robbed
her, why did she not ask him for restitution of her valuables after the alleged threat had
ceased, i.e., when there was already an agreement between them to elope?
These arguments fail to persuade us. The testimony of complainant as to the
taking of her cash and valuables is evidence enough to sustain a conviction for robbery
considering that we nd no fault in the pronouncement of the trial court that her
testimony is credible. The persuasive value of the declaration of credibility is bolstered
by our own scrutiny of the testimony of complainant showing her answers to the incisive
questions propounded to her to be firm and straightforward.
While there may have been no effort on the part of complainant to retrieve her
personal belongings from accused-appellant even after all threats had ceased, her failure
to do so does not under the circumstances necessarily dispute the commission of
robbery. Article 293 of the Revised Penal Code provides that "[a]ny person who, with
intent to gain, shall take any personal property belonging to another, by means of
violence against or intimidation of person, or using force upon anything, shall be guilty of
robbery." When accused-appellant divested complaining witness of her personal
belongings he committed the crime of robbery. All the elements necessary for its
execution and accomplishment were present, i.e., (a) personal property belonging to
another, (b) unlawful taking, (c) intent to gain, and (d) violence or intimidation. It is
therefore immaterial that she failed to ask for the return of her personal things.
Moreover, her actuation could only be fairly interpreted to mean that she did not want
accused-appellant to be suspicious of her moves. cdrep
As for the charge of rape, accused-appellant maintains that the requisite force or
intimidation was not proved by the prosecution beyond reasonable doubt; that there was
some form of consent to the sexual intercourse as complainant did not put up tenacious
resistance despite lack of threat on her life during the alleged rape; and, that complainant
on cross-examination was not certain whether accused-appellant was armed at the
commencement of the rape.
We likewise nd these contentions of accused-appellant unconvincing. The
prosecution for rape in the instant case is based solely on the testimony of complaining
witness. Thus, the basic issue that must be addressed is her credibility. Doctrinally, the
trial court’s assessment of the credibility of witnesses is accorded the highest respect
and weight by the appellate courts. It is normally sustained unless material facts and
circumstances have been overlooked, misunderstood or misapplied. 1 2 There is no such
showing in this case.
Accused-appellant might not have employed force in committing the rape but he
de nitely used intimidation which was su cient to make complainant submit herself to
him against her will for fear of life and personal safety. Accused-appellant grabbed her
and dragged her to his house. He was armed with an ice pick and threatened to kill her
with it if she did not follow his wishes. She was naturally intimidated and her intimidation
started from that moment on, and subsisted in her mind when the rape was started until
its consummation. Intimidation is subjective so it must be viewed in the light of the
victim's perception and judgment at the time of the commission of the crime, and not by
any hard and fast rule. It is enough that it produces fear, as in the present case, fear that
if the complainant does not yield to the bestial demands of accused-appellant something
would happen to her at that moment or even thereafter. Thus, it is irrelevant that she was
not certain when cross-examined that accused-appellant was armed with an ice pick
when the rape commenced; it was enough that he was holding something that looked
like an ice pick which engendered fear in her. With fear instilled in her mind, it is
understandable that she did not offer any resistance since any attempt to do so would
only be futile. Such failure on her part should not be taken to mean consent so as to
make her a willing participant in the sexual confrontation. cdrep
The Information charges accused-appellant with the special complex crime of

robbery with rape. The record shows that the prosecution has established that he
committed both robbery and rape with the intent to take personal property of another
preceding the rape. Under Art. 294, par. (1), of the Revised Penal Code, ". . . [a]ny person
guilty of robbery with the use of violence against or intimidation of persons shall suffer:
1. The penalty of reclusion perpetua to death, . . . when the robbery shall have been
accompanied by rape . . ." Complaining witness Juditha Bautista was raped twice on the
occasion of the robbery. In this regard, this Court had declared in some cases that the
additional rapes committed on the same occasion of robbery would not increase the
penalty. 1 3 There were also cases, however, where this Court ruled that the multiplicity of
rapes committed could be appreciated as an aggravating circumstance. 1 4 Finally, in the
recent case of People v. Regala 1 5 the Court held that the additional rapes committed
should not be appreciated as an aggravating circumstance despite a resultant
"anomalous situation" wherein robbery with rape would be on the same level as robbery
with multiple rapes in terms of gravity. 1 6 The Court realized that there was no law
providing for the additional rape/s or homicide/s for that matter to be considered as
aggravating circumstance. It further observed that the enumeration of aggravating
circumstances under Art. 14 of the Revised Penal Code is exclusive, unlike in Art. 13 of
the same Code which enumerates the mitigating circumstances where analogous
circumstances may be considered, hence, the remedy lies with the legislature.
Consequently, unless and until a law is passed providing that the additional rape/s or
homicide/s may be considered aggravating, the Court must construe the penal law in
favor of the offender as no person may be brought within its terms if he is not clearly
made so by the statute. Under this view, the additional rape committed by accused-
appellant is not considered an aggravating circumstance. Applying Art. 63, par. (2), of the
Revised Penal Code which provides that "(i)n all cases in which the law prescribes a
penalty composed of two indivisible penalties, the following rules shall be observed in
the application thereof . . . 2 . (w)hen there are neither mitigating nor aggravating
circumstances in the commission of the deed, the lesser penalty shall be applied," the
lower penalty of reclusion perpetua should be imposed on accused-appellant.
As to the award of damages to the complaining witness, an additional amount of

P50,000.00 may be given as damages ex delicto in line with recent jurisprudence. 1 7
WHEREFORE, the Decision of the court a quo nding accused-appellant
FERNANDO SULTAN Y LATO GUILTY of the special complex crime of robbery with rape
and sentencing him to reclusion perpetua, to pay Juditha M. Bautista P50,000.00 for
moral damages, P5,180.00 for actual damages representing the value of the personal
properties plus the cash amount of P130.00 taken from her is AFFIRMED with the
MODIFICATION that the amount of P50,000.00 be added as civil indemnity in conformity
with prevailing jurisprudence. Costs against accused-appellant. prcd
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.
Footnotes
1. Decision penned by Judge Diosdado M. Peralta, RTC-Br. 95, Quezon City.

2. TSN, 15 September 1997, pp. 3-19.
3. Ibid.
4. Ibid.
5. Ibid.
6. TSN, 8 September 1997, pp. 3-11.
7. Bong Coronel and policeman Agustin Bautista, Jr.
8. See Note 6.
9. TSN, 15 September 1997, pp. 3-10.
10. Rollo, p. 4.
11. See Note 1.
12. People v. Cristobal, G.R. No. 119218, 29 April 1999, citing People v. Banela, G.R. No.
124973, 18 January 1999.
13. People v. Cristobal, G.R. No. 119218, 29 April 1999; People v. Martinez, G.R. No. 116918,
19 June 1997, 274 SCRA 259; People v. Lutao, G.R. No. 107798, 16 November 1995, 250
SCRA 45; People v. Precioso, G.R. No. 95890, 12 May 1993, 221 SCRA 748, cited in
People v. Regala, G.R. No. 130508, 5 April 2000.
14. People v. Candelario, G.R. No. 125550, 28 July 1999; People v. Pulusan, G.R. No.
110037, 21 May 1998, 290 SCRA 353; People v. Salvatierra, G.R. No. 111124, 20 June
1996, 257 SCRA 489.
15. G.R. No. 130508, 5 April 2000.
16. Citing People v. Pedroso, No. L-32997, 30 July 1982, 115 SCRA 599; People v.
Mabilangan, No. L-48217, 30 January 1982, 111 SCRA 398.
17. People v. Cristobal, G.R. No. 119218, 29 April 1999.

THIRD DIVISION
[G.R. Nos. 136149-51. September 19, 2000.]
PEOPLE OF THE PHILIPPINES , appellee, vs . WALPAN LADJAALAM y

MIHAJIL alias "WARPAN" , appellant.

Atty. Jose E. Fernandez for accused-appellant.
SYNOPSIS
Appellant Walpan Ladjaalam y Mihajil, also known as "Warpan," appeals before us

the September 17, 1998 Decision of the Regional Trial Court (RTC) of Zamboanga City
(Branch 16), which found him guilty of three out of the four charges lodged against him. He
was found guilty of the crimes of (1) Violation of Section 15-A, Article III, of Republic Act
No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended; (2) Illegal
Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866, as
amended by Republic Act No. 8294; (3) the crime of Direct Assault with Multiple
Attempted Homicide.
The Supreme Court a rmed with modi cation the decision of the trial court and
found appellant guilty only of direct assault and multiple attempted homicide and
maintaining a drug den. The Court ruled that that the trial court erred in convicting
appellant of illegal possession of rearms. According to the Court, a simple reading of
Section 1 of Republic Act 8294 shows that if an unlicensed rearm is used in the
commission of any crime, there can be no separate offense of simple illegal possession of
rearms. Since direct assault with multiple attempted homicide was committed in this
case, appellant can no longer be held liable for illegal possession of rearms. The Court
also ruled that when the crime was committed on September 24, 1997, the original
language of PD 1866 had already been expressly superseded by RA 8294 which took
effect on July 6, 1997. In other words, no longer in existence was the earlier provision of
PD 1866, which justi ed a conviction for illegal possession of rearms separate from any
other crime. It was replaced by RA 8294 which, among other amendments to PD 1866,
contained the specific proviso that "no other crime was committed."
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; DEFENSE OF

FRAME-UP; CANNOT BE GIVEN CREDENCE ABSENT ANY SHOWING OF IMPROPER
MOTIVE ON THE PART OF THE POLICE OFFICERS COUPLED WITH THE PRESUMPTION OF
REGULARITY ON THE PART OF THE SAID OFFICERS. — This Court has invariably held that
the defense of frame-up is inherently weak, since it is easy to fabricate, but terribly di cult
to disprove. Absent any showing of an improper motive on the part of the police o cers,
coupled with the presumption of regularity in the performance of their duty, such defense
cannot be given much credence. Indeed, after examining the records of this case, we
conclude that appellant has failed to substantiate his claim. On the contrary, his
statements in his Counter Affidavit are inconsistent with his testimony during the trial.
2. CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972, AS AMENDED;
MAINTENANCE OF A DRUG DEN ESTABLISHED; CASE AT BAR. — We agree with the trial
court that appellant was guilty of maintenance of a drug den, an offense for which he was
correctly sentenced to reclusion perpetua. His guilt was clearly established by the
testimony of Prosecution Witness Rino Bartolome Locson, who himself had used the
extension house of appellant as a drug den on several occasions, including the time of the
raid. The former's testimony was corroborated by all the raiding police o cers who
testi ed before the court. That appellant did not deny ownership of the house and its
extension lent credence to the prosecution's story.
3. ID.; COMPLEX CRIMES; TRIAL COURT PROPERLY CONVICTED APPELLANT
OF THE CRIME OF DIRECT ASSAULT WITH MULTIPLE ATTEMPTED HOMICIDE. — The trial
court was also correct in convicting appellant of direct assault with multiple counts of
attempted homicide. It found that "[t]he act of the accused [of] ring an M14 ri e [at] the
policemen[,] who were about to enter his house to serve a search warrant . . . " constituted
such complex crime. We note that direct assault with the use of a weapon carries the
penalty of prision correctional in its medium and maximum periods, while attempted
homicide carries the penalty of prison correctional. Hence, for the present complex crime,
the penalty for direct assault, which constitute the "most serious crime," should be
imposed and applied in its maximum period.
4. ID.; ILLEGAL POSSESSION OF FIREARMS (PRESIDENTIAL DECREE NO. 1866,
AS AMENDED); REPUBLIC ACT 8294; NO SEPARATE OFFENSE OF ILLEGAL POSSESSION
OF FIREARMS IF AN UNLICENSED FIREARM IS USED IN THE COMMISSION OF ANY OTHER
CRIME. — A simple reading thereof shows that if an unlicensed rearm is used in the
commission of any crime, there can be no separate offense of simple illegal possession of
rearms. Hence, if the "other crime" is murder or homicide, illegal possession of rearms
becomes merely an aggravating circumstance, not a separate offense. Since direct assault
with multiple attempted homicide was committed in this case, appellant can no longer be
held liable for illegal possession of firearms.
5. ID.; ID.; ID.; PD 1866 NO LONGER IN EXISTENCE AT THE TIME THE CRIME
WAS COMMITTED. — We reject the OSG's contention that PD 1866, as worded prior to its
amendment by RA 8294, should be applied in this case. When the crime was committed on
September 24, 1997, the original language of PD 1866 had already been expressly
superseded by RA 8294 which took effect on July 6, 1997. In other words, no longer in
existence was earlier provision of PD 1866, which justi ed a conviction for illegal
possession of rearms separate from any other crime. It was replaced by RA 8294 which,
among others amendments to PD 1866, contained the speci c proviso that "no other
crime was committed." DcTAIH
6. ID.; ID.; ID.; RA 8294; SECTION 1, SECOND PARAGRAPH THEREOF; PROVISO

THAT "NO OTHER CRIME WAS COMMITTED BY THE PERSON ARRESTED" NOT LIMITED.
TO THE CRIMES OF MURDER AND HOMICIDE. — Just an unacceptable is the interpretation
of the trial court. We find no justification for limiting the proviso in the second paragraph to
murder and homicide. The law is clear: the accused can be convicted of simple illegal
possession of rearms, provided that "no other crime was committed by the person
arrested." If the intention of the law in the second paragraph were to refer only to homicide
and murder, it should have expressly said so, as it did in the third paragraph. Verily, where
the law does not distinguish, neither should we.
7. ID.; LIBERAL CONSTRUCTION OF PENAL LAWS; REPUBLIC ACT 8294'S PLAIN
LANGUAGE IS MOST FAVORABLE TO APPELLANT. — Moreover, penal laws are construed
liberally in favor of the accused. In this case, the plain meaning of RA 8294's simple
language is most favorable to herein appellant. Verily, no other interpretation is justified for
the language of the new law demonstrates the legislative intent to favor the accused.
Accordingly, appellant cannot be convicted of two separate offenses of illegal possession
of rearms and direct assault with attempted homicide. Moreover, since the crime
committed was direct assault and not homicide or murder, illegal possession of rearms
cannot be deemed an aggravating circumstance.
8. POLITICAL LAW; JUDICIAL DEPARTMENT; SUPREME COURT; NO
DISCRETION TO GIVE STATUTES NEW MEANING DETACHED FROM THE MANIFEST
INTENDMENT AND LANGUAGE OF THE LEGISLATURE. — The Court is aware that this
ruling effectively exonerates appellant of illegal possession of an M-14 ri e, an offense
which normally carries a penalty heavier than that for direct assault. While the penalty for
the rst prision mayor, for the second it is only prision correctional. Indeed, the accused
may evade conviction for illegal possession of rearms by using such weapons in
committing an even lighter offense, like alarm and scandal or slight physical injuries, both
of which are punishable by arresto menor. This consequence, however, necessarily arises
from the language of RA 8294, whose wisdom is not subject to the Court's review. Any
perception that the result reached here appears unwise should be addressed to Congress.
Indeed, the Court has not discretion to give statutes a new meaning detached from the
manifest intendment and language of the legislature. Our task constitutionally con ned
only to applying the law and jurisprudence to the proven facts, and we have done so in this
case.
DECISION
PANGANIBAN , J : p
Republic Act No. 8294 penalizes simple illegal possession of rearms, provided that
the person arrested committed "no other crime." Furthermore, if the person is held liable
for murder or homicide, illegal possession of rearms is an aggravating circumstance, but
not a separate offense. Hence, where an accused was convicted of direct assault with
multiple attempted homicide for ring an unlicensed M-14 ri e at several policemen who
were about to serve a search warrant, he cannot be held guilty of the separate offense of
illegal possession of rearms. Neither can such unlawful act be considered to have
aggravated the direct assault. CTacSE
The Case
Walpan Ladjaalam y Mihajil, also known as "Warpan," appeals before us the
September 17, 1998 Decision 1 of the Regional Trial Court (RTC) of Zamboanga City
(Branch 16), which found him guilty of three out of the four charges lodged against him.
Filed against appellant were four Informations, 2 all signed by Assistant Regional
State Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The rst Information
3 was for maintaining a den for the use of regulated drugs. It reads as follows:
"That on or about September 24, 1997, in the City of Zamboanga,

Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, Walpan Ladjaalam being then the owner of a residential house located
at Rio Hondo, 4 this City, conspiring and confederating together, mutually aiding
and assisting . . . his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y
Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said
house as a den, where regulated drug [was] used in any form." 5
The second Information 6 charged appellant with illegal possession of rearms and
ammunition. We quote it below:
accused, conspiring and confederating together, mutually aiding and assisting
with one another, without any justi able reason or purpose other than to use it in
the commission of crime, did then and there, wilfully, unlawfully, and feloniously
have in their possession and under their custody and control, the following
weapons, to wit: one (1) M14 ri e with SN 1555225 with magazines and seven
(7) rounds of live ammunition; two (2) magazines with twenty (20) and twenty [-
one] (21) rounds of live [ammunition]; one (1) homemade caliber .38 revolvers
with ve (5) live ammunition; one (1) M-79 (single) ri e with pouch and with ve
(5) empty shell[s]; one (1) home made caliber .38 with SN-311092 with ve live
ammunition and one empty shell of [a] cal. 38 . . . Smith and Wesson; two (2) .38
Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade
launcher paltik, without rst having obtained the necessary license and or permit
therefor from authorities concerned, in agrant violation of the aforementioned
law." 7
The third Information, 8 for multiple attempted murder with direct assault, was
worded thus:
accused being then armed with M-14 Armalite Ri es, M-16 Armalite Ri es and
other assorted rearms and explosives, conspiring and confederating together,
mutually aiding and assisting . . . one another and with intent to kill, did then and
there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B.
JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1
RICARDO J. LACASTESANTOS, in the following manner, to wit: by then and there
ring their M-14 Armalite Ri es, M-16 Armalite Ri es and other assorted rearms
and explosives, aimed and directed at the fatal parts of the bodies of the above-
named police o cers, well known to the accused as members of the Philippine
National Police, Zamboanga City Police O ce, and as such, agents of a person in
authority, who at the time of the attack were engaged in the performance of their
duties, that is, on the occasion when said o cers were about to serve the Search
Warrant legally issued by the Regional Trial Court, this City, to the person of the
accused thus commencing the commission of crime of multiple murder directly
by overt acts, and if the accused did not accomplish their unlawful purpose, that
is, to kill the above-named Police O cers, it was not by reason of their own
voluntary desistance but rather because of the fact that all the above-named
police o cers were able to seek cover during the ring and were not hit by the
bullets and explosives red by the accused and also by the fact said police
o cers were able to wrestle with two (2) of the accused namely: Walpan
Ladjaalam y Mihajil a.k.a. 'Warpan' and Ahmad Sailabbi y Hajairani, who were
subdued and subsequently placed under arrest; whereas accused PO2 Nurhakim
T. Hadjula was able to make good his escape and has remained at-large." 9
In the fourth Information appellant was charged with illegal possession of drugs. 1 0
On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y
Hajaraini were dismissed upon motion of the O ce of the City Prosecutor, which had
conducted a reinvestigation of the cases as ordered by the lower court. The accused were
consequently released from jail.
The arraignment of appellant on all four (4) charges took place on January 6, 1998,
during which he entered a plea of not guilty. 1 1 After pretrial, the assailed Decision was
rendered, the dispositive part of which reads:
"WHEREFORE, the Court nds accused WALPAN LADJAALAM y MIHAJIL
a.k.a. 'WARPAN' —
1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT
of Violation of Section 15-A, Article 111, of Republic Act No. 6425, otherwise
known as the Dangerous Drugs Act of 1972, as amended, and SENTENCES said
accused to the penalty of RECLUSION PERPETUA and to pay a ne of FIVE
HUNDRED THOUSAND (P500,000.00) and to pay the costs;
"2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16,
Article III, in relation to Section 21, Article IV, of Republic Act No. 6425, otherwise
known as the Dangerous Drugs Act of 1972, as amended, and ACQUITS him of
said crime with costs de oficio;
"3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE
DOUBT of the crime of Illegal Possession of Firearm and Ammunition penalized
under Presidential Decree No. 1866, as amended by Republic Act. No. 8294, and
SENTENCES said accused to suffer an indeterminate penalty of SIX (6) YEARS of
prision correccional as minimum to EIGHT (8) YEARS of prision mayor as
maximum and to pay a ne [of] THIRTY THOUSAND (P30,000.00) and pay the
costs;
"4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE
DOUBT of the crime of Direct Assault with Multiple Attempted Homicide and
SENTENCES said accused to an indeterminate penalty of TWO (2) YEARS and
FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARS of
prision correctional as maximum and to pay a ne of ONE THOUSAND
(P1,000.00) and to pay the costs." (emphasis in the original)
Hence, this appeal. 1 2

The Facts
Prosecution's Version
In its Brief, 1 3 the Office of the Solicitor General presents the facts in this wise:
"At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut led an
application for the issuance of a search warrant against appellant, his wife and
some John Does (Exh. C). After the search warrant was issued about 2:30 p.m. of
the same day, a brie ng was conducted inside the o ce of the Anti-
Vice/Narcotics Unit of the Zamboanga City Police O ce in connection with the
service of the search warrant. The brie ng was conducted by SPO2 Felipe
Gaganting, Chief of the Anti-Vice/Narcotics Unit. During the brie ng, PO3 Renato
Dela Peña was assigned as presentor of the warrant. SPO1 Ricardo
Lacastesantos and PO3 Enrique Rivera were designated to conduct the search.
Other policemen were assigned as perimeter guards (TSN, March 3, 1998, pp. 33-
36).
"After the brie ng, more than thirty (30) policemen headed by Police
Superintendent Edwin Soledad proceeded to the house of appellant and his wife
at Folio Hondo on board several police vehicles (TSN, March 4, 1998, p. 32; April
22, 1998, p. 54). Before they could reach appellant's house, three (3) persons
sitting at a nearby store ran towards the house shouting, '[P]olice, raid, raid' (Ibid.,
March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about
ten (10) meters from the main gate of the house, they were met by a rapid burst of
gun re coming from the second oor of the house. There was also gun re at the
back of the house (Ibid., March 5, 1998, pp. 14-16). STIEHc
"SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Peña who
were with the rst group of policemen saw appellant re an M14 ri e towards
them. They all knew appellant. When they were red upon, the group, together
with SPO2 Gaganting, PO3 Obut and Superintendent Soledad, sought cover at the
concrete fence to observe the movements at the second oor of the house while
other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51).
"In front of the house was an extension building connected to the concrete
fence (Ibid., pp. 45-46, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio,
and Obut entered the door of the extension building. Gaganting opened the main
(steel) gate of the house. The other members of the team then entered.
Lacastesantos and Mirasol entered the house through the main door and went
inside the sala of the ground oor while other policemen surrounded the house.
Two (2) old women were in the sala together with a young girl and three (3)
children. One of the old women took the children to the second oor while the
young girl remained seated at the corner (Ibid., pp. 19-21).
"Lacastesantos and Mirasol proceeded to the second oor where they

earlier saw appellant ring an M14 ri e at them through the window. While they
were going upstairs, appellant noticed their presence. He went inside the bedroom
and, after breaking and removing the jalousies, jumped from the window to the
roof of a neighboring house. Seeing this, Mirasol rushed downstairs and asked
help from the other members of the raiding team to arrest appellant.
Lacastesantos went to the second oor and shouted to the policemen outside not
to re in the direction of the second oor because there were children. Mirasol
and SPO1 Cesar Rabuya arrested appellant at the back of his house after a brief
chase (Ibid., pp. 21-23).
"At the second oor, Lacastesantos saw an M14 ri e (Exh. B-3) with
magazine on top of the sofa at the sala on the second floor (Ibid., p. 2-7). The ri e
bore Serial No. 1555225. He removed the magazine from the ri e and the bullet
inside the chamber of the ri e. He counted seventeen (17) live ammunition inside
the magazine. He saw two (2) more M14 ri e magazines on that sofa, one with
twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live
ammunition (Exh. G-4). He likewise saw three (3) M16 ri e magazines (Exh. G-2)
in a corner at the second floor (TSN, March 5, 1998, pp. 23-32, 53-57).
"After Lacastesantos and Mirasol entered appellant's house, Rivera, Dela

Peña, Gregorio and Obut followed and entered the house. After identifying
themselves as members of the PNP Anti-Vice/Narcotics Unit, Obut presented to
the old women a copy of the search warrant. Dela Peña and Rivera then searched
appellant's room on the ground oor in the presence of Punong Barangay Elhano
(TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with
fty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing
methamphetamine hydrochloride or 'shabu'.
"Other items were found during the search, namely, assorted coins in
different denominations (Exh. W; TSN, April 28, 1998, pp. 23-25), one (1)
homemade .38 caliber revolver (Exh. B-2) with ve (5) live [ammunition], one (1)
M79 single ri e with [a] pouch containing ve (5) empty shells of an M79 ri e
(Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32).
"Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of
the Zamboanga Police. [O]n the morning of September 24, 1997, he was
instructed by SPO2 Gaganting to go to appellant's house to buy 'shabu.' Locson
knew appellant as a seller of 'shabu' (TSN, April 22, 1998, p. 5) and had been to
appellant's house about fteen (15) times before. He went to Rio Hondo and
arrived at appellant's house at 3:20 p.m. He bought P300.00 worth of 'shabu'
from appellant. The latter got three (3) decks of shabu from his waist bag.
Appellant instructed Locson to go behind the curtain where there was a table.
There were six (6) persons already smoking. There was a lighted kerosene lamp
made of a medicine bottle placed on the table. They asked Locson to smoke
'shabu' and Locson obliged. He placed the three (3) decks of 'shabu' he bought on
the table (Ibid., pp. 8-15).
"While they were smoking 'shabu,' Locson heard gun re coming from
appellant's house. They all stood and entered appellant's compound, but were
instructed to pass [through] the other side. They met appellant at the back of his
house. Appellant told them to escape 'because the police are already here.' They
scampered and 'ran away because there were already shots.' Locson jumped over
the fence and ran towards the seashore. Upon reaching a place near the Fisheries
School, he took a tricycle and went home (Ibid., pp. 17-19).
"The following day, September 25, 1997, he went to the police station and
executed an a davit (Exh. M) narrating what transpired at appellant's house [o]n
the afternoon of September 24, 1997.
"After the search and before returning to the police station, PO3 Dela Peña
prepared a Receipt for Property Seized' (Exh. P & 3) listing the properties seized
during the search. The receipt was signed by Dela Peña as the seizure o cer, and
by Punong Barangay Hadji Hussin Elhano and radio reporter Jun Cayona as
witnesses. A copy of the receipt was given to appellant but he refused to
acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12).
"An examination conducted by Police Inspector Mercedes D. Diestro,

Forensic Chemist of the PNP Crime Laboratory Service O ce 9, on the para n
casts taken from both hands of appellant yielded positive for gunpowder nitrates
(Exh. A-3), giving rise to the possibility that appellant had red a gun before the
examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations
conducted on September 26, 1997 showed that the following rearms 'were red'
(Exh. B-5): a .38 caliber revolver (homemade) with Serial No. 311092 (Exh. B-1),
another .38 caliber revolver (homemade) without a serial number (Exh. B-2), a Cal.
7.62 mm M14 U.S. ri e with Serial No. 1555225 (Exh. B-3), and an M79 ri e
without a serial number (Exh. B-4). They were red within ve (5) days prior to the
examination (TSN, March 3, 1998, pp. 16-21).
"With respect to the crystalline substances, an examination conducted by
Police Inspector Susan M. Cayabyab, likewise a Forensic Chemist of the PNP
Crime Laboratory Service O ce 9, on the fty (50) pieces of folded aluminum
foils each containing white crystalline granules with a total weight of 1.7426
grams (Exh. J-1 to J-50) yielded positive results for the presence of
methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of
one (1) crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results
for the presence of methamphetamine hydrochloride (Exh. L).
"The records of the Regional Operation and Plans Division of the PNP
Firearm and Explosive Section show that appellant 'had not applied/ led any
application for license to possess rearm and ammunition or . . . been given
authority to carry [a] firearm outside of his residence' (Exh. X)" 1 4
Defense's Version
Appellant Ladjaalam agrees with the narration of facts given by the lower court. 1 5
Hence, we quote the pertinent parts of the assailed Decision:
"Accused Walpan Ladjaalam y Mihajil a.k.a. 'Warpan', 30 years old,
married, gave his occupation as 'smuggling' (tsn, p. 2, May 4, 1998). He used to
go to Labuan in Malaysia and bring cigarettes to the Philippines without paying
taxes (tsn, pp. 4041, id.). He said that his true name [was] Abdul Nasser
Abdurakman and that Warpan or Walpan Ladjaalam [was] only his 'alias'.
However, he admitted that more people kn[e]w him as Walpan Ladjaalam rather
than Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47, id.). He testi ed that [o]n
the afternoon of September 24, 1997, when he was arrested by the police, he was
sleeping in the house of Dandao, a relative of his wife. He was alone. He slept in
Dandao's house and not in his house because they ha[d] 'a sort of a conference'
as Dandao's daughter was leaving for Saudi Arabia. He noticed the presence of
policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He
woke up and went out of the house and that was the time that he was arrested.
He said he was arrested ". . . [at] the other side of my house; at the other side of
the fence where I was sleeping . . . . At the back of my house' (tsn, p. 7, id.). He
does not know who arrested him 'considering that the one who arrested me does
not have nameplate.' He was arrested by four (4) persons. Not one of those who
arrested him testi ed in Court. He was handcuffed and placed inside a jeep
parked at Rio Hondo Elementary School. According to him, he did not re a gun at
the policemen from [t]he second oor of his house. He said the 'policemen' [were]
'the one[s] who re[d] at us' (tsn, p. 5, id.). If he red a gun at the policemen for
sure they [would] die '[b]ecause the door is very near . . . the vicinity of my house'.
He does not own the M14 ri e (Exh. 'B-3') which according to policemen, he used
in ring at them. The gun does not belong to him. He does not have a gun like
that (tsn, p. 15, id.). A policeman also owns an M14 ri e but he does not know the
policeman (tsn, pp. 16-17, id.). He said that the M79 ri e (Exh. 'B-4'), the three (3)
empty M16 ri e magazines (Exh. 'G'; 'G-1' to 'G-2'), the two (2) M14 magazines
with live ammunition (Exhs. 'G-3'; 'G-4'); the two (2) caliber .38 revolvers (Exhs. 'B-
1'; 'B-2'), the fty (50) aluminum foils each containing shabu (Exhs. 'J-1' to 'J-50')
placed inside a pencil case (Exh. 'J', the assorted coins placed inside a blue bag
(Exh. 'W') and the white crystalline stone (Exh. 'K') all do not belong to him. He
said that the policemen just produced those things as their evidence. The firearms
do not belong to him. They were brought by the policemen (tsn, p. 43, May 4,
1998). Regarding the blue bag containing assorted coins, he said: 'that is not
ours, I think this (is) theirs, . . . they just brought that as their evidence' (tsn, pp. 15-
24, id.)
"Walpan Ladjaalam declared there were occupants who were renting his
extension house. He a rmed that he owns that house. Four (4) persons were
staying in the extension house. He could only recognize the husband whose name
is Momoy. They are from Jolo. They left the place already because they were
afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998). He does not
know prosecution witness Rino Locson y Bartolome. Although Locson recognized
him, in his case he does not know Locson and he does not recognize him (tsn, p.
11, id.). He did not sell anything to Locson and did not entertain him. He is not
selling shabu but he knows 'for a fact that there are plenty of person who are
engaged in selling shabu in that place,' in that area known as Aplaya, Rio Hondo.
One of them is Hadji Agbi (tsn, pp. 11-14, id.).
"After his arrest Walpan Ladjaalam was brought to the police station where
he stayed for one day and one night before he was transferred to the City jail.
While at the police station, he was not able to take a bath. He smokes two packs
of cigarette a day. While he was at the police station, he smoked [a] cigarette
given to him by his younger sister. He lighted the cigarettes with [a] match. From
the police station, he was brought to the PNP Regional O ce at R.T. Lim
Boulevard where he was subject to para n examination (tsn, pp. 24-26, May 4,
1998).
"During the raid conducted on his house, his cousin Boy Ladjaalam, Ating
Sapadi, and Jecar (Sikkal) Usman, the younger brother of his wife were killed.
Walpan Ladjaalam said that he saw that 'it was the policeman who shot them[,]
only I do not know his name.' They were killed at the back of his house . He said
that no charges were led against the one responsible for their death (tsn, pp. 30-
33, May 4, 1998).
"Anilhawa Ahamad, more or less 80 years old, a widow was in the house of
Walpan Ladjaalam whom he calls 'Hadji Id' at the time the police raided the
house. She is the mother of Ahma Sailabbi. She was together with Babo Dandan,
two small children and a helper when 'soldiers' entered the house. '(W)hen they
arrived, they kept on ring (their guns) even inside the house' (tsn, p. 5, May 5,
1998). They were armed with short and long rearms. They searched the house
and scattered things and got what they wanted. They entered the room of Walpan
Ladjaalam. They tried to open a bag containing jewelry. When Anilhawa tried to
bring the bag outside the room, they grabbed the bag from her and poked a gun at
her. At that time Walpan Ladjaalam was not in the house. Ahamad Sailabbi was
also not in the house. A Search Warrant was shown to Anilhawa after the search
was conducted and just before the policemen left the place. Anilhawa Ahamad
said that 'it was already late in the afternoon[;] before they left that was the time
the Search Warrant (was) given to us by . . . Barangay Captain Hussin Elhano'
(tsn, pp. 6-8, May 5, 1998). Barangay Chairman Elhano arrived 'already late in the
afternoon, almost sundown' (tsn, p. 9, id.). Anilhaw declared that aside from a bag
containing jewelry and a bag full of money, she had not seen anything else that
was taken from Walpan Ladjaalam's house (tsn, pp. 9-12, id.).
"Akmad (Ahmad) Sailabbi, 37 years old, married testi ed that about 4:00
o'clock [o]n the afternoon of September 24, 1997, he was standing in front of his
house when policemen arrived and immediately arrested him. He was about to go
to the City Proper to buy articles he was intending to bring to Sabah. He had
'around P50,000.00' placed inside a waist bag tied around his waist. The
policemen told him to lie down in prone position and a policeman searched his
back. They pulled his waist bag and took his DiaStar wrist watch. He was shot
three times and was hit on the forehead leaving a scar. His injury was not treated.
He was taken to the police station where he was detained for one day and one
night. He was detained at the City Jail for three months and ve days after which
he was released (tsn, pp. 25-29, May 5,1998).
"Melba Usma, 20 years old, a widow, testi ed that [o]n the afternoon of
September 24, 1997, she was in the house of her parents lying together with her
husband Sikkal Usma. There is only one house between her parents' house and
the house of Walpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-
in Ladjaalam, Walpan's wife. When Melba heard shots, she went downstairs. A
policeman was looking for her husband. The policeman called her husband.
When her husband went down, he was instructed by the policeman to lie down in
prone position. Then the policeman shot her husband. The policeman had two
other companions who also shot her husband while he was lying down in prone
position (tsn, pp. 2-7, May 5,1998).
"Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of
September 24, 1997, she was sitting at the door of her house watching her
children playing when a motorcycle, driven by a person, stopped near her house.
The driver was Gaganting whom she called a soldier. He went down from his
motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised
her hands. She got her children and when she was about to enter the room of her
house, Gaganting again poked a gun at her and 'there was a shot.' As a result of
ring, three persons died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali
Sali (tsn, pp. 8-10, May 5, 1998).
"Barangay Captain Hadji Hussin Elhano, 51 years old, testi ed that about
4:00 o'clock [o]n the afternoon of September 24, 1997, he was fetched by two
policemen at Catabangan where he was attending a seminar. Because of tra c
along the way, they arrived at the Rio Hondo already late in the afternoon. He saw
policemen were already inside the house. Upon entering the gate, he saw Walpan
at the gate already handcuffed. Walpan called him that the police advised him
not to approach Walpan. The search was already over and things were already
taken inside the house. When he went inside the house, he saw 'the things that
they (policemen) searched, the rearms and the shabu' (tsn, p. 17, May 8, 1998).
He did not see the Search Warrant. What was shown to him were the things
recovered during the search which were being listed. They were being counted
and placed on a table. 'Upon seeing the things that were recovered during the
search, I just signed the receipt (Exh. "P"; "P-1") of the things . . . taken during the
search" (tsn, pp. 17-18, May 8, 1998). He saw three dead bodies at the side of the
fence when he went to the other side of the house. The three persons were killed
outside the fence of Walpan Ladjaalam (tsn, p. 18, id.)." 1 6
The Trial Court's Ruling

The trial court observed that the house of appellant was raided on September 24,
1997 by virtue of Search Warrant No. 20 issued on the same day. However, the lower court
nullified the said Warrant because it had been issued for more than one specific offense, 1 7
in violation of Section 3, Rule 126 of the Rules of Court. 1 8 The court a quo ruled:
"It should be stated at the outset that Search Warrant No. 20 is totally 'null
and void' because it was issued for more than one speci c offense . . . contrary to
Section 3, Rule 1[2]6 of the Rules of Court which provides that 'A search warrant
shall not issue but upon probable cause in connection with one speci c offense .
. . .' In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court ruled that
a search warrant for more than one offense — a 'scatter shot warrant' violates
Section 3, Rule 126 of the [R]evised Rules of Court and is 'totally null and void."' 1 9
(emphasis in the original) aIcDCH

Nevertheless, the trial court deemed appellant's arrest as valid. It emphasized that
he had shot at the o cers who were trying to serve the void search warrant. This fact was
established by the testimonies of several police o cers, 2 0 who were participants in the
raid, and con rmed by the laboratory report on the para n tests conducted on the
firearms and appellant. 2 1 Additionally, the judge noted that Appellant Ladjaalam, based on
his statements in his Counter A davit, impliedly contradicted his assertions in open court
that there had been no exchange of gun re during the raid. 2 2 The trial court concluded
that the testimonies of these o cers must prevail over appellant's narration that he was
not in his house when the raid was conducted.
Prescinding from this point, the court a quo validated the arrest of appellant,
reasoning thus:
"Under the circumstances, the policemen 'had authority to pursue and
arrest Walpan Ladjaalam and con scate the rearm he used in shooting at the
policemen and to enter his house to effect said arrest and con scation of the
firearm.' Under Rule 113, Section 5 (a), of the Rules of Court, 'A peace o cer or a
private person may, without a warrant, arrest a person . . . (w)hen in his presence,
the person to be arrested has committed, is actually committing, or is attempting
to commit an offense.' An offense is committed in the presence or within the view
of an o cer, within the meaning of the rule authorizing an arrest without a
warrant, when the o cer sees the offense, although at a distance, or hears the
disturbances created thereby and proceeds at once to the scene thereof. At the
time the policemen entered the house of accused Walpan Ladjaalam after he had
red shots at the policemen who intended to serve the Search Warrant to him, the
accused was engaged in the commission of a crime, and was pursued and
arrested after he committed the crime of shooting at the policemen who were
about to serve the Search Warrant." 2 3
As a consequence of the legal arrest, the seizure of the following was also deemed
valid: the M14 ri e (with a magazine containing seventeen live ammunition) 2 4 used by
appellant against the police elements, two M14 magazines, and three other M16 ri e
magazines. 2 5 The trial court observed that these items were in "plain view" of the pursuing
police o cers. Moreover, it added that these same items were "evidence [of] the
commission of a crime and/or contraband and therefore, subject to seizure" 2 6 since
appellant "had not applied for a license to possess rearm and had not been given
authority to carry firearm outside his residence." 2 7
For being incredible and unsupported by evidence, appellant's claim that the items
that were seized by the police o cers had been planted was disbelieved by the trial court.
It ruled that if the police o cers wanted to plant evidence to incriminate him, they could
have done so during the previous raids or those conducted after his arrest. To its mind, it
was unbelievable that they would choose to plant evidence, when they were accompanied
by the barangay chairman and a radio reporter who might testify against them. It then
dismissed these allegations, saying that frame-up, like alibi, was an inherently weak
defense. 2 8
The trial court also convicted the accused of the crime of maintaining a drug den. It
reasoned as follows:
"The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo
Lacastesantos and SPO1 Amado Mirasol, Jr. clearly established that Walpan
Ladjaalam operated and maintained a drug den in his extension house where
shabu or methamphetamine hydrochloride, a regulated drug, was sold, and where
persons or customers bought and used shabu or methamphetamine
hydrochloride by burning the said regulated drug and sni ng its smoke with the
use of an aluminum foil tooter. A drug den is a lair or hideaway where prohibited
or regulated drugs are used in any form or are found. Its existence [may be]
proved not only by direct evidence but may also be established by proof of facts
and circumstances, including evidence of the general reputation of the house, or
its general reputation among police o cers. The uncorroborated testimony of
accused Walpan Ladjaalam a.k.a. 'Warpan' that he did not maintain an extension
house or a room where drug users who allegedly buy shabu from him inhales or
smokes shabu cannot prevail over the testimonies of Locson, SPO1
Lacastesantos, and SPO1 Mirasol. He admitted that he is the owner of the
extension house but he alleged that there were four (4) occupants who rented that
extension house. He knew the name of only one of the four occupants who are
allegedly from Jolo, a certain Momoy, the husband. Aside from being
uncorroborated, Walpan's testimony was not elaborated by evidence as to when
or for how long was the extension house rented, the amount of rental paid, or by
any other document showing that the extension house was in fact rented. The
defense of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan' is a weak
defense. Denial is the weakest defense and cannot prevail over the positive and
categorical testimonies of the prosecution witnesses. Denials, if unsubstantiated
by clear and convincing evidence, are negative and self-serving evidence which
deserve no weight in law and cannot be given evidentiary weight over the
testimony of credible witnesses who testify on a rmative matters. As between
the positive declaration of the prosecution witnesses and the negative statements
of the accused, the former deserve more credence." 2 9
In conclusion, the trial court explained appellant's liability in this manner:

". . . . The act of the accused in ring an M14 ri e to the policemen who
were about to enter his house to serve a search warrant constitutes the crime of
direct assault with multiple attempted homicide, not multiple attempted murder
with direct assault[,] considering that no policeman was hit and injured by the
accused and no circumstance was proved to qualify the attempted killing to
attempted murder.
"The accused Walpan Ladjaalam a.k.a. 'Warpan' cannot be held liable [for]
the crime of Violation of Section 16, Article 111, in relation to Sections 21, Article
IV, of Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as
amended, because the fty (50) pieces of folded aluminum foils having a total
weight of 1.7426 grams all containing methamphetamine hydrochloride or shabu
allegedly found in his house are inadmissible as evidence against him
considering that they were seized after [a] search conducted by virtue of Search
Warrant No. 20 which is totally null and void as it was issued for more than one
offense, and were not found in 'plain view' of the police o cers who seized them.
Neither could the accused be held liable for illegal possession of rearms and
ammunition except for the (1) M14 ri e with Serial Number 1555225 and with
magazine containing fteen (15) live ammunition and two more M14 ri e
magazines with twenty (20) and twenty-one (21) live ammunition respectively
considering that the policemen who recovered or seized the other rearms and
ammunition did not testify in court. The blue bag containing assorted coins
cannot be returned to the accused Walpan Ladjaalam a.k.a. 'Warpan' because
according to the accused the blue bag and assorted coins do not belong to him[;]
instead the said assorted coins should be turned over to the National Treasury."
30

The Issues
In his Brief, appellant submits the following Assignment of Errors:
I
"The trial court erred when it concluded that appellant Walpan Ladjaalam y
Mihajil [had] red rst at the police o cers who went to his house to serve a
search warrant upon him which led to an exchange of re between Ladjaalam
and the police officer.
II
"The trial court erred when it denied the appellant the right and opportunity
for an ocular inspection of the scene of the re ght and where the house of the
appellant [was] located.EaISDC
III
"The trial court erred when it ruled that the presumption of regularity in the
performance of their duties [excluded] the claim of the appellant that the rearms
and methamphetamine hydrochloride (i.e. shabu) were planted by the police." 3 1
In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the
request for ocular inspection, (b) credibility of the prosecution witnesses, and (c) the
defense of frame up. In addition, we shall also discuss the proper crimes and penalties to
be imposed on appellant.
The Court's Ruling
The appeal has no merit.
First Issue:
Denial of Request for Ocular Inspection
Appellant insists that the trial court erred in denying his request for an ocular
inspection of the Ladjaalam residence. He argues that an ocular inspection would have
afforded the lower court "a better perspective and an idea with respect to the scene of the
crime." 3 2 We do not agree.
We fail to see the need for an ocular inspection in this case, especially in the light of
the clear testimonies of the prosecution witnesses. 3 3 We note in particular that the
defense had even requested SPO1 Amado Mirasol Jr. to sketch the subject premises to
give the lower court a fairly good idea of appellant's house. 3 4 Viewing the site of the raid
would have only delayed the proceedings. 3 5 Moreover, the question whether to view the
setting of a relevant event has long been recognized to be within the discretion of the trial
judge. 3 6 Here, there is no reason to disturb the exercise of that discretion. 3 7
Second Issue:
Credibility of Prosecution Witnesses
Appellant, in essence, questions the credibility of the prosecution witnesses. 3 8
Su ce it to state that the trial court's assessment of their credibility is generally accorded
respect, even nality. 3 9 After carefully examining the records and nding no material
inconsistencies to support appellant's claim, we cannot exempt this case from the general
rule. 4 0 Quite the contrary, the testimonies of these witnesses positively showed that
appellant had red upon the approaching police elements, and that he had subsequently
attempted to escape. SPO1 Amado Mirasol Jr. 4 1 testified thus:
"PROSECUTOR NUVAL:
Q: And, this trail is towards the front of the house of the accused?
A: Yes.
Q: And it's there where you were met by a volley of fire?
A: Yes, Your Honor.
COURT:
Q: How far were you from the concrete fen[c]e when you were met by a volley
of fire? . . . You said you were fired upon?
A: More or less, five (5) meters.

xxx xxx xxx
PROSECUTOR NUVAL:
Q: Now, you said you were able to enter the house after the gate was opened
by your colleague Felipe Gaganting . . . I will reform that question.
Q: Who opened the gate Mr. Witness?

A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.
Q: And, at that time you were hiding at the concrete fence?
A: Yes.
Q: Now, when this gate was opened, you said you went inside the house,
right?
A: Yes.
Q: What did you see inside the house?
A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the
house of Walfran [sic] Ladjaalam at the ground oor. We went inside the
sala on the ground floor of his house[;] I saw two old woman.
xxx xxx xxx
PROSECUTOR NUVAL:
Q: Now, what did you do with these two old women?

A: I did not mind those two old women because those two women were
sitting on the ground oor. I was concentrating on the second oor
because Ladjaalam was ring towards our group so, I, together with
Ricardo Lacastesantos, went upstairs to the second floor of the house.
Q: Were you able to go to the second floor of the house?
A: Yes.

Q: What happened when you were already on the second floor?
A: While we were proceeding to the second oor, Walfan [sic] Ladjaalam,

noticed our presence and immediately went inside the bedroom [o]n the
second oor and he went immediately and jumped from the window of his
house . . . leading to the roof of the neighbor's house.
xxx xxx xxx
COURT:
Reform. That is leading
Q: What happened when you entered and he jumped to the roo ng of the
neighbor's house?
A: Immediately, I myself, we immediately went downstairs and asked the
assistance of the members of the raiding team to arrest Walfan
Ladjaalam.
xxx xxx xxx

PROSECUTOR NUVAL:
Q: Were you able to go down?
A: Yes.
Q: What happened when you were there?
A: We immediately went out and I asked the assistance of the members of

the raiding team and the investigator of the unit especially SPO1 Cesar
Rabuya. I was able to manage to arrest Walfan Ladjaalam." 4 2
What happened thereafter was narrated by Senior Police O cer Ricardo

Lacastesantos, 4 3 as follows:
"Q: What did you notice [o]n the second floor?
A: I went where the ring came from, so, I saw [an] M14 ri e and I shouted
from the outside, 'do not re at the second oor because there [are] a lot of
children here.'
Q: Now, that rifle you said [was an] M14, where did you find this?
A: At the sala set.
Q: This sala set where is this located?

A: Located [on] the second floor of the house.
Q: Is there a sala [o]n the second floor?
A: Yes.
Q: Can you still identify that M14 ri e which you said you recovered from the
sale set?
A: Yes.
Q: Why can you identify that?
A: The Serial No. of M14 is 1555225 and I marked it with my initial.
Q: Now, I have here M14 ri e[;] will you please tell us where is the Serial No. of
this?
A: 1555225 and I put my initial, RJL.

FISCAL NUVAL:
This is already marked as our Exhibit 'B-3' with magazine, one magazine and
seven round [ammunition].
Q: After recovering this, what did you do with this firearm?

A: When I recovered it I removed the bullets inside the chamber[.] I removed
the magazine and I turned it over to the investigator.
Q: Where did you turn it over?

A: At the crime scene.
Q: Now, that magazine, can you still identify this?

A: Yes.
Q: Why?
A: I put . . . markings.
xxx xxx xxx
COURT
So, a[si]de from the magazine attached to the M14 ri e you found six more
magazines? DCAHcT
A: Yes, so, all in all six magazines, three empty M16 ri e magazines and three
M14.
Q: The M16 magazines [were] empty?
A: Empty.
Q: How about the M14?

A: Found with [ammunition].
xxx xxx xxx

Q: So, where are the three M16 magazines?
A: In the corner.
Q: What did you do with [these] three magazines of M16?

A: I turned [them] over to the investigator.
Q: Can you identify them?

A: Yes, because of my initials[.]
Q: Where are your initials?

A: On the magazines.
Q: RJL?
A: RJL." 4 4
These were con rmed by the results of the para n tests conducted on appellant
and on the weapons seized during the raid. Both of his hands as well as the weapons,
particularly the M-14 which he had used, were positive for gunpowder nitrate. Police
Inspector Mercedes Delfin-Diestro explained in open court:
"Q: Okay. Now, what was the result of your examination, Madam Witness?
A: The result of the examination [was] that both hands of the subject person,
ha[d] presence of gun powder nitrates.
Q: What do you mean Madam Witness, what does that indicate?
A: It indicates there is presence of powder nitrates.
Q: Can we conclude that he fired a gun?

A: I cannot conclude that he red a gun because there are so many
circumstances [why] a person [would be] positive on his hands for gun
powder nitrates.
Q: But, most likely, he fired a gun?

A: Yes.
xxx xxx xxx
PROSECUTOR NUVAL:
Q: What about, Madam Witness this Exhibit 'B-3', which is the M14 ri e. What
did you do with this?
A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I
observed there [were] black and traces of brown residue on the bolt,
chamber and in the barrel.
Q: And, that indicates Madam Witness . . .?
A: It indicates that the gun was fired.
Q: Recently?
A: Because of the traces of brown residue; it could be possible that the gun
was fired before the incident . . . .
COURT:
Q: There is also black residue?
A: Yes.
Q: What does it indicate?
A: It indicates that the firearm was recently fired.

Q: And, where is this swab used at the time of the swabbing of this Exhibit?
A: This one.
PROSECUTOR NUVAL:
May we ask that this be marked as Exhibit 'B-3-A'.
COURT:
Q: The ring there indicates that the gun was recently red, during the
incident?
A: Yes.
Q: And also before the incident it was fired because of the brown residue?
A: Yes, Your Honor." 4 5 (emphasis supplied)
Duly proven from the foregoing were the two elements 4 6 of the crime of illegal
possession of rearms. Undoubtedly, the established fact that appellant had red an M-14
ri e upon the approaching police o cers clearly showed the existence of the rearm or
weapon and his possession thereof. Su cing to satisfy the second element was the
prosecution's Certi cation 4 7 stating that he had not led any application for license to
possess a rearm, and that he had not been given authority to carry any outside his
residence. 4 8 Further, it should be pointed out that his possession and use of an M-14 ri e
were obviously unauthorized because this weapon could not be licensed in favor of, or
carried by, a private individual. 4 9
Third Issue:
Defense of Frame-up
From the convoluted arguments strewn before us by appellant, we gather that the
main defense he raises is frame-up. He claims that the items seized from his house were
"planted," and that the entire Zamboanga police force was out to get him at all cost.
This Court has invariably held that the defense of frame-up is inherently weak, since
it is easy to fabricate, but terribly di cult to disproved. 5 0 Absent any showing of an
improper motive on the part of the police o cers, 5 1 coupled with the presumption of
regularity in the performance of their duty, such defense cannot be given much credence.
5 2 Indeed, after examining the records of this case, we conclude that appellant has failed
to substantiate his claim. On the contrary, his statements in his Counter A davit are
inconsistent with his testimony during the trial. 5 3 He testified thus:
"Q Now, Mr. Witness, do you remember having executed an A davit/ a
Counter-Affidavit?
A I could not remember.
Q I have here a Counter-A davit and it was signed before this representation
on the 8th day of December 1997[;] tell us whose signature is this
appearing above the typewritten name.
FISCAL NUVAL:
Q . . . Walpan Ladjaalam, whose signature is this?

(Showing)
A Yes, Sir. This is mine.

Q Now, in paragraph[s] 1, 2, 3, 4, 5, 6, 7 and 8; you stated in this Counter-
A davit which I quote: 'that I was resting and sleeping when I heard the
gunshots and I noticed that the shots were directed towards our house..
and I inspected and . . . we were attacked by armed persons. . . and I was
apprehended by the persons who attacked . . . our house'; [the] house you
are referring to [in] this paragraph, whose house [are you] referring to, is
this [what] you are referring to [as] your house or the house of your
neighbors [from] which you said you heard gunshots?
A Our house.
Q Now, in paragraph 6 of your Counter-A davit you stated and I quote: 'that
[o]n that afternoon of September 24, 1997, I was at home in my house
Aplaya, Riohondo, Bo. Campo Muslim, my companions in my house [were]
the two old women and my children, is this correct?
A They were not there.

Q Now, in that statement Mr. Witness, you said that you were at home in
[your] house at Aplaya, Riohondo, Bo. Campo Muslim[;] which is which
now, you were in your house or you were in your neighbors, house at that
time when you heard gunshots?
A I was in the house near my house.
Q So, your statement particularly paragraph 6 of your Counter-A davit that

you were at home in [your] house at Aplaya Riohondo Bo. Campo Muslim,
is . . . not correct?
A Yes, Sir. This is not correct." 5 4
Crime and Punishment

The trial court convicted appellant of three crimes: (1) maintenance of a drug den,
(2) direct assault with attempted homicide, and (3) illegal possession of rearms. We will
discuss each of these.
Maintenance of a Drug Den
We agree with the trial court that appellant was guilty of maintenance of a drug den,
an offense for which he was correctly sentenced to reclusion perpetua. His guilt was
clearly established by the testimony of Prosecution Witness Rino Bartolome Locson, who
himself had used the extension house of appellant as a drug den on several occasions,
including the time of the raid. The former's testimony was corroborated by all the raiding
police o cers who testi ed before the court. That appellant did not deny ownership of the
house and its extension lent credence to the prosecution's story. TIAEac
Direct Assault with Multiple

Attempted Homicide
The trial court was also correct in convicting appellant of direct assault 5 5 with
multiple counts of attempted homicide. It found that "[t]he act of the accused [of] ring an
M14 ri e [at] the policemen[,] who were about to enter his house to serve a search warrant
. . ." constituted such complex crime. 5 6
We note that direct assault with the use of a weapon carries the penalty of prision
correccional in its medium and maximum periods, while attempted homicide carries the
penalty of prision correccional. 5 7 Hence, for the present complex crime, the penalty for
direct assault, which constitutes the "most serious crime," should be imposed and applied
in its maximum period. 5 8
Illegal Possession of Firearms
Aside from nding appellant guilty of direct assault with multiple attempted
homicide, the trial court convicted him also of the separate offense of illegal possession
of rearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of
prision correccional to 8 years of prision mayor.
The O ce of the Solicitor General (OSG) disagrees, on the ground that the trial court
should not have applied the new law. It contends that under the facts of the case, the
applicable law should have been PD 1866, as worded prior to its amendment by RA 8294.
The trial court's ruling and the OSG's submission exemplify the legal community's
di culty in grappling with the changes brought about by RA 8294. Hence, before us now
are opposing views on how to interpret Section 1 of the new law, which provides as
follows:
"SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is
hereby further amended to read as follows:
"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition
or Possession of Firearms or Ammunition Instruments Used or Intended to
be Used in the Manufacture of Firearms or Ammunition. — The penalty of
prision correccional in its maximum period and a ne of not less than
Fifteen thousand pesos (P15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any low
powered rearm, such as rim re handgun, .380 or .32 and other rearm of
similar repower, part of rearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any rearm
or ammunition: Provided, That no other crime was committed.
"The penalty of prision mayor in its minimum period and a ne of

Thirty thousand pesos (P30,000) shall be imposed if the rearm is
classi ed as high powered rearm which includes those with bores bigger
in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44,
.45 and also lesser calibered rearms but considered powerful such as
caliber .357 and caliber .22 center re magnum and other rearms with
ring capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested.
"If homicide or murder is committed with the use of an unlicensed
rearm, such use of an unlicensed rearm shall be considered as an
aggravating circumstance.
"If the violation of this Section is in furtherance of or incident to, or
in connection with the crime of rebellion or insurrection, sedition, or
attempted coup d'etat, such violation shall be absorbed as an element of
the crime of rebellion or insurrection, sedition, or attempted coup d'etat.
"The same penalty shall be imposed upon the owner, president,
manager, director or other responsible o cer of any public or private rm,
company, corporation or entity, who shall willfully or knowingly allow any
of the rearms owned by such rm, company, corporation or entity to be
used by any person or persons found guilty of violating the provisions of
the preceding paragraphs or willfully or knowingly allow any of them to
use unlicensed rearms or rearms without any legal authority to be
carried outside of their residence in the course of their employment.
"The penalty of arresto mayor shall be imposed upon any person
who shall carry any licensed rearm outside his residence without legal
authority therefor."
Citing People v. Jayson , 5 9 the OSG argues that the foregoing provision does not
cover the speci c facts of this case. Since another crime — direct assault with multiple
unlawful homicide — was committed, appellant cannot be convicted of simple illegal
possession of rearms under the second paragraph of the aforecited provision.
Furthermore, since there was no killing in this case, possession cannot be deemed as an
aggravating circumstance under the third paragraph of the provision. Based on these
premises, the OSG concludes that the applicable law is not RA 8294, but PD 1866 which,
as worded prior the new law, penalizes simple illegal possession of rearms even if
another crime is committed at the same time. 6 0
Applying a different interpretation, the trial court posits that appellant should be
convicted of illegal possession of rearms, in addition to direct assault with multiple
attempted homicide. It did not explain its ruling, however. Considering that it could not
have been ignorant of the proviso 6 1 in the second paragraph, it seemed to have construed
"no other crime" as referring only to homicide and murder, in both of which illegal
possession of rearms is an aggravating circumstance. In other words, if a crime other
than murder or homicide is committed, a person may still be convicted of illegal
possession of rearms. In this case, the other crime committed was direct assault with
multiple attempted homicide; hence, the trial court found appellant guilty of illegal
possession of firearms.
We cannot accept either of these interpretations because they ignore the plain
language of the statute. A simple reading thereof shows that if an unlicensed rearm is
used in the commission of any crime, there can be no separate offense of simple illegal
possession of rearms. Hence, if the "other crime" is murder or homicide, illegal
possession of rearms becomes merely an aggravating circumstance, not a separate
offense. Since direct assault with multiple attempted homicide was committed in this
case, appellant can no longer be held liable for illegal possession of firearms.
Moreover, penal laws are construed liberally in favor of the accused. 6 2 In this case,
the plain meaning of RA 8294's simple language is most favorable to herein appellant.
Verily, no other interpretation is justi ed, for the language of the new law demonstrates the
legislative intent to favor the accused. 6 3 Accordingly, appellant cannot be convicted of
two separate offenses of illegal possession of rearms and direct assault with attempted
homicide. Moreover, since the crime committed was direct assault and not homicide or
murder, illegal possession of firearms cannot be deemed an aggravating circumstance.
We reject the OSG's contention that PD 1866, as worded prior to its amendment by
RA 8294, should be applied in this case. When the crime was committed on September 24,
1997, the original language of PD 1866 had already been expressly superseded by RA
8294 which took effect on July 6, 1997. 6 4 In other words, no longer in existence was the
earlier provision of PD 1866, which justi ed a conviction for illegal possession of rearms
separate from any other crime. It was replaced by RA 8294 which, among other
amendments to PD 1866, contained the speci c proviso that "no other crime was
committed."
Furthermore, the OSG's reliance on People v. Jayson 6 5 is misplaced. True, this Court
sustained the conviction of appellant for illegal possession of rearms, although he had
also committed homicide. We explained however, that "the criminal case for homicide
[was] not before us for consideration."
Just as unacceptable is the interpretation of the trial court. We nd no justi cation
for limiting the proviso in the second paragraph to murder and homicide. The law is clear:
the accused can be convicted of simple illegal possession of rearms, provided that "no
other crime was committed by the person arrested." If the intention of the law in the
second paragraph were to refer only to homicide and murder, it should have expressly said
so, as it did in the third paragraph. Verily, where the law does not distinguish, neither
should we.
The Court is aware that this ruling effectively exonerates appellant of illegal
possession of an M-14 ri e, an offense which normally carries a penalty heavier than that
for direct assault. While the penalty for the rst is prision mayor, for the second it is only
prision correccional. Indeed, the accused may evade conviction for illegal possession of
rearms by using such weapons in committing an even lighter offense, 6 6 like alarm and
scandal 6 7 or slight physical injuries, 6 8 both of which are punishable by arresto menor. 6 9
This consequence, however, necessarily arises from the language of RA 8294, whose
wisdom is not subject to the Court's review. Any perception that the result reached here
appears unwise should be addressed to Congress. Indeed, the Court has no discretion to
give statutes a new meaning detached from the manifest intendment and language of the
legislature. Our task is constitutionally con ned only to applying the law and jurisprudence
7 0 to the proven facts and we have done so in this case.
WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION

that appellant is found guilty only of two offenses: (1) direct assault and multiple
attempted homicide with the use of a weapon, for which he is sentenced to 2 years and 4
months to 6 years of prision correccional and (2) maintaining a drug den, for which he was
correctly sentenced by the trial court to reclusion perpetua. Costs against appellant.
Let a copy of this Decision be furnished the Congress of the Philippines for a
possible review, at its sound discretion, of RA 8294. IESTcD
SO ORDERED.
Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.
Footnotes
1. Written by Judge Jesus C. Carbon, Jr.
2. Rollo, pp. 10-15.

3. The appellant was charged together with his wife Nur-In Ladjaalam and one Ahmad
Sailabbi. Charges against the latter were later dropped.
4. Also spelled "Riohondo."
5. Rollo, p. 10.
6. Appellant was charged here together with Nur-In Ladjaalam and Ahmad Sailabbi y
Hajaraini. The charge against the latter two was subsequently dismissed.
7. Rollo, p. 12.
8. In this Information, charged were appellant together with one PO2 Nurhakim T. Hadjula
and Ahmad Sailabbi y Hajaraini. Charges against Sailabbi were later dropped; Hadjula
still remains at large.
9. Rollo, pp. 14-15.

10. No copy of the fourth Information was attached to the records. In any event, the trial
court acquitted him of this charge.
11. Assisted by counsel de parte, Atty. Jose E. Fernandez.
12. Notice of Appeal was filed on September 25, 1998. This case was deemed submitted
for resolution after the Court's receipt of the Brief for the Appellee on May 19, 2000. The
filing of a reply brief was deemed waived, as none was submitted within the
reglementary period.
13. Signed by Solicitor General Ricardo P. Galvez, Assistant Solicitor General Carlos N.
Ortega and Associate Solicitor Rico Sebastian D. Liwanag.
14. Appellee's Brief, pp. 9-16; rollo, pp. 247-254.

15. Appellant's Brief, p. 5; rollo, p. 149. This Brief was signed by Atty. Jose E. Fernandez.
16. Decision, pp. 23-32; rollo, pp. 51-60.
17. These are: 1) violation of §16, Article III of RA 6495, otherwise known as the Dangerous
Drugs Act of 1972; 2) violation of PD 1866 penalizing illegal possession of firearm and
ammunition.
18. It provides:
"SEC. 3. Requisite for issuing search warrant. — A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched
and the things to be seized."
20. These are, inter alia, SPO1 Amado Mirasol, Jr., SPO1 Ricardo Lacastesantos, PO3
Enrique Rivera and PO3 Renato Dela Peña.
21. Decision, pp. 42-43; rollo, pp. 70-71. Both appellant and the firearms seized tested
positive for gunpowder nitrates.
22. The trial court quoted the same thus:
"[O]n the afternoon of September 24, 1998, I was at home in my house at Aplaya, Rio
Hondo, Barangay Campo Muslim . . . (and) I was resting and sleeping when I heard the
sound of gun reports, which awakened me. Then I noticed that the shots were directed
towards our house, hence I suspected that we were under attack by armed persons. I
tried to escape and jumped outside, but I was apprehended by the persons who attacked
our house, before I learned they were police officers." (Decision p. 35: rollo, p. 63.)

24. Seen by SPO1 Lacastesantos lying on top of a sofa on the second story of appellant's
house when he pursued appellant.
25. Seen at a corner on the same floor.
26. Decision, p. 38; rollo, p. 66.

27. Ibid.
28. Ibid. p. 51; rollo, p. 79.
29. Ibid, pp. 48-50; pp. 76-78.
30. Ibid., pp. 53-54; pp. 81-82.
31. Appellant's Brief, p. 1; rollo, p. 145.
32. Appellant's Brief, p. 19; rollo, 163.
33. As shown by the pertinent portions quoted below. See People v. Baniel, 275 SCRA 472,
July 15, 1997.
34. TSN, March 4, 1998, pp. 37-38.
35. See People v. Baniel, supra.
36. Paras, Rules of Court Annotated, 2nd ed., p. 78, citing Graham on Evidence. See also
Appellee's Brief, pp. 21-22.
37. See People v. Moreno, 83 Phil. 286, April 7, 1949.

38. Appellant's first assignment of error is herein taken up as the second issue.
39. See People v. Elamparo, GR No. 121572, March 31, 2000; People v. Cupino, et al., GR
No. 125688, March 31, 2000; People v. Estorco, GR No. 111941, April 27, 2000; People v.
Sultan, GR No. 132470, April 27, 2000; People v. Mendoza, GR No. 128890, May 31,
2000; People v. Geral, GR No. 122283, June 15, 2000; People v. Rios, GR No. 132632,
June 19, 2000; People v Molina, infra.
40. People v. Narvasa, 298 SCRA 637, November 16, 1998.
41. The witness is a member of the team that went to Ladjaalam's house on September 24,
1997. He was tasked to bring the barangay captain to appellant's house to serve as a
witness to the search.
42. TSN, March 4, 1998, pp. 18-23.
43. Also a member or the raiding team. Lacastesantos, together with SPO1 Mirasol, went
inside the house. When appellant tried to escape, Mirasol pursued him; Lacastesantos
proceeded to the second floor.
44. TSN, March 5, 1998, pp. 23-24, 28-29.
45. TSN, March 3, 1998, pp. 10-11, 19-20.

46. In the en banc case of People v. Molina (292 SCRA 742, 777, July 22, 1998), we said:
"In crimes involving illegal possession of firearms, the prosecution has the burden of
proving the elements thereof: (1) the existence of the subject firearm; and (2) the fact
that the accused, who owned or possessed the firearm, did not have the corresponding
license or permit to possess or carry the same outside his residence." (footnote omitted)
See also People v. Castillo, GR No. 131592-93, February 15, 2000; People v. Lazaro, GR No.
112090, October 26, 1999; People v. Narvasa, 298 SCRA 637, November 16,1998.
47. Signed by Police Senior Inspector Ruperto Rugay Regis, Jr.
48. People v. Lazaro, supra., citing several cases. See also People v. Narvasa, supra.;
People v. Molina, supra.; People v. Villanueva, 275 SCRA 489, July 15, 1997.
49. People v. Molina, supra.
50. See People v. Barita et al., GR No. 123541, February 8, 2000; Dizon v. CA, 311 SCRA 1,
July 22, 1999.
51. In fact, appellant admits that he did not have any misunderstanding with the arresting
officers. Neither could he think of any reason why they would file false charges against
him. (TSN, May 4, 1998, p. 42)
52. See People v. Dizon, supra.

53. TSN, May 4, 1998, pp. 37-39.
54. Ibid.
55. Article 148 of the RPC reads:
"ART. 148. Direct assaults. — Any person or persons who, without public uprising, shall
employ force or intimidation for the attainment of any of the purposes enumerated in
defining the crimes of rebellion and sedition, or shall attack, employ force, or seriously
intimidate or resist any person in authority or any of his agents, while engaged in the
performance of official duties, or on occasion of such performance, shall suffer the
penalty of prision correccional in its medium and maximum periods and a fine not
exceeding 1,000 pesos, when the assault is committed with a weapon or when the
offender is a public officer or employee, or when the offender lays hands upon a person
in authority. . . . ."
56. Article 48 of the Revised Penal Code (RPC) reads:

"ART. 48. Penalty for complex crimes. — When a single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means for committing
the other, the penalty for the most serious crime shall be imposed, the same to be
applied in its maximum period." (emphasis ours)
57. Article 249; cf. 51, RPC.
58. Section 1 of the Indeterminate Sentence Law provides that "the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be that which,
in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and the minimum of which shall be within the range of the penalty next lower
to that prescribed "by the Code for the offense." An authority on criminal law writes that
when the accused is guilty of a complex crime, the penalty immediately lower is the next
below the penalty provided for the gravest crime." (Reyes, The Revised Penal Code, Book
One, 1981 ed., p. 769.) Since direct assault is punishable with prision correccional in its
medium and maximum period, the penalty next lower in degree is arresto mayor
(maximum) to prision correctional (minimum). Accordingly, the indeterminate penalty for
direct assault with multiple attempted homicide is 2 years and 4 months to 6 years of
prision correctional.
59. 282 SCRA 166, 176-177, November 18, 1997.
60. People v. Quijada, 259 SCRA 191, July 24, 1996; People v. Tac-an, 182 SCRA 601,
February 26, 1990.
61. "That no other crime was committed by the person arrested."
62. See People v. Atop, 286 SCRA 157, February 10, 1998; People v. Deleverio, 289 SCA 547,
April 24, 1998.
63. See Tanada v. Yulo, 61 Phil. 515, May 31, 1935; Regalado v. Yulo, 61 Phil. 173,
February 15, 1935.
64. People v. Jayson, supra.
65. Supra at p. 177, per Mendoza, J.
66. Offenses under the Revised Penal Code which carry a penalty lighter than that for
illegal possession of a high-powered firearm include (1) indirect assault (Article 149), (2)
tumults and other disturbances (Article 153), (3) discharge of firearms (Article 254), (4)
light threats (Article 285), and (5) light coercion (Article 287).
67. Article 155 (1) of the Revised Penal Code provides the penalty of arresto menor or fine
not exceeding 200 pesos upon "[a]ny person who within any town or public place, shall
discharge any firearm, rocket, firecracker or other explosive calculated to cause alarm or
danger."
68. Article 266 (1) imposes the penalty of arresto menor "when an offender has inflicted
physical injuries which shall incapacitate the offended party for labor from one to nine
days, or shall require medical attention during the same period." For example, when a
person hits the head of another with the butt of an unlicensed M-14 rifle, thereby
incapacitating the latter for one to nine days, the accused may be charged only with
slight physical injuries, not illegal possession of firearms.
69. Under Article 27 of the Revised Penal Code, the duration of arresto menor is one to thirty
days.
70. That penal laws should be liberally interpreted in favor of the accused.

SECOND DIVISION
[G.R. No. 170562. June 29, 2007.]
ANGEL CELINO, SR. , petitioner, vs . COURT OF APPEALS, CEBU CITY,

HON. DELANO F. VILLARUZ, Presiding Judge, Branch 16, Regional
Trial Court, Capiz, Roxas City, and PEOPLE OF THE PHILIPPINES ,
respondents.
DECISION
CARPIO-MORALES , J : p
This petition for certiorari under Rule 65 of the Rules of Court assails the Court of
Appeals' Decision dated April 18, 2005 1 a rming the trial court's denial of petitioner
Angel Celino, Sr.'s Motion to Quash; and Resolution dated September 26, 2005 2
denying petitioner's Motion for Reconsideration of the said Decision.
The following facts are not disputed:
Two separate informations were led before the Regional Trial Court of Roxas
City charging petitioner with violation of Section 2 (a) of COMELEC Resolution No. 6446
(gun ban), 3 and Section 1, Paragraph 2 of Republic Act No. (R.A.) 8294 4 (illegal
possession of firearm), as follows:
Criminal Case No. C-137-04
That on or about the 12th day of May, 2004, in the City of Roxas,
Philippines, and within the jurisdiction of this Honorable Court, the said accused,
did then and there willfully, unlawfully and knowingly carry outside of his
residence an armalite ri e colt M16 with serial number 3210606 with two (2) long
magazines each loaded with thirty (30) live ammunitions of the same caliber
during the election period — December 15, 2005 to June 9, 2004 — without rst
having obtained the proper authority in writing from the Commission on Elections,
Manila, Philippines. DTCSHA
CONTRARY TO LAW. 5
Criminal Case No. C-138-04

That on or about the 12th day of May, 2004, in the City of Roxas,
Philippines, and within the jurisdiction of this Honorable Court, the said accused,
did then and there willfully, unlawfully and knowingly have in his possession and
control one (1) armalite ri e colt M16 with serial number 3210606 with two (2)
long magazines each loaded with thirty (30) live ammunitions of the same caliber
without rst having obtained the proper license or necessary permit to possess
the said firearm.
CONTRARY TO LAW. 6
Upon arraignment in Criminal Case No. C-137-04, petitioner pleaded not guilty to
the gun ban violation charge. 7

Prior to his arraignment in Criminal Case No. C-138-04, petitioner led a Motion
to Quash 8 contending that he "cannot be prosecuted for illegal possession of firearms .
. . if he was also charged of having committed another crime of [ sic] violating the
Comelec gun ban under the same set of facts . . . ." 9
By Order of July 29, 2004, 1 0 the trial court denied the Motion to Quash on the
basis of this Court's 1 1 a rmation in Margarejo v. Hon. Escoses 1 2 of therein
respondent judge's denial of a similar motion to quash on the ground that "the other
offense charged . . . is not one of those enumerated under R.A. 8294 . . . ." 1 3 Petitioner's
Motion for Reconsideration was likewise denied by September 22, 2004 Resolution, 1 4
hence, petitioner filed a Petition for Certiorari 1 5 before the Court of Appeals.
By Decision dated April 18, 2005, 1 6 the appellate court a rmed the trial court's
denial of the Motion to Quash. Petitioner's May 9, 2005 Motion for Reconsideration 1 7
having been denied by Resolution of September 26, 2005, 1 8 petitioner led the present
petition.
The petition fails.
Petitioner's remedy to challenge the appellate court's decision and resolution
was to le a petition for review on certiorari under Rule 45 on or before October 20,
2005 or 15 days after he received a copy of the appellate court's resolution on October
5, 2005 1 9 denying his motion for reconsideration. Instead, petitioner chose to le the
present petition under Rule 65 only on December 2, 2005, 2 0 a good 58 days after he
received the said resolution.
Certiorari cannot be used as a substitute for lost appeal. Certiorari lies only when
there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of
law. Why the question being raised by petitioner, i.e., whether the appellate court
committed grave abuse of discretion, could not have been raised on appeal, no reason
therefor has been advanced. 2 1
While this Court, in accordance with the liberal spirit pervading the Rules of Court
and in the interest of justice, has the discretion to treat a petition for certiorari as having
been led under Rule 45, especially if led within the reglementary period under said
Rule, it nds nothing in the present case to warrant a liberal application of the Rules, no
justi cation having been proffered, as just stated, why the petition was led beyond the
reglementary period, 2 2 especially considering that it is substantially just a replication of
the petition earlier filed before the appellate court. aDIHTE
Technicality aside, the petition fails just the same.

The relevant provision of R.A. 8294 reads:
SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is
hereby further amended to read as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition,

Disposition or Possession of Firearms or Ammunition or Instruments Used
or Intended to be Used in the Manufacture of Firearms or Ammunition. — . .
..
"The penalty of prision mayor in its minimum period and a ne of

Thirty thousand pesos (P30,000) shall be imposed if the rearm is
classi ed as high powered rearm which includes those with bores bigger
in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44,
.45 and also lesser calibered rearms but considered powerful such as
caliber .357 and caliber .22 center- re magnum and other rearms with
ring capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested.
"If homicide or murder is committed with the use of an unlicensed
rearm, such use of an unlicensed rearm shall be considered as an
aggravating circumstance.
"If the violation of this Section is in furtherance of or incident to, or

in connection with the crime of rebellion or insurrection, sedition, or
attempted coup d'etat, such violation shall be absorbed as an element of
the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.
xxx xxx xxx
(Underscoring supplied)
The crux of the controversy lies in the interpretation of the underscored proviso.
Petitioner, citing Agote v. Lorenzo , 2 3 People v. Ladjaalam , 2 4 and other similar cases, 2 5
contends that the mere ling of an information for gun ban violation against him
necessarily bars his prosecution for illegal possession of rearm. The Solicitor General
contends otherwise on the basis of Margarejo v. Hon. Escoses 2 6 and People v. Valdez .
27
In Agote, 2 8 this Court a rmed the accused's conviction for gun ban violation but
exonerated him of the illegal possession of rearm charge because it "cannot but set
aside petitioner's conviction in Criminal Case No. 96-149820 for illegal possession of
rearm since another crime was committed at the same time, i.e., violation of
COMELEC Resolution No. 2826 or the Gun Ban." 2 9 Agote is based on Ladjaalam 3 0
where this Court held:
. . . A simple reading [of RA 8294] shows that if an unlicensed rearm is
used in the commission of any crime, there can be no separate offense of simple
illegal possession of rearms. Hence, if the "other crime" is murder or homicide,
illegal possession of rearms becomes merely an aggravating circumstance, not
a separate offense. Since direct assault with multiple attempted homicide was
committed in this case, appellant can no longer be held liable for illegal
possession of firearms.
Moreover, penal laws are construed liberally in favor of the accused. In this
case, the plain meaning of RA 8294's simple language is most favorable to herein
appellant. Verily, no other interpretation is justi ed, for the language of the new
law demonstrates the legislative intent to favor the accused. Accordingly,
appellant cannot be convicted of two separate offenses of illegal possession of
firearms and direct assault with attempted homicide. . . . TECIHD
xxx xxx xxx

. . . The law is clear: the accused can be convicted of simple illegal
possession of rearms, provided that "no other crime was committed by the
person arrested." If the intention of the law in the second paragraph were to refer
only to homicide and murder, it should have expressly said so, as it did in the third
paragraph. Verily, where the law does not distinguish, neither should we. 3 1
The law is indeed clear. The accused can be convicted of illegal possession of
rearms, provided no other crime was committed by the person arrested. The word
"committed" taken in its ordinary sense, and in light of the Constitutional presumption
of innocence, 3 2 necessarily implies a prior determination of guilt by nal conviction
resulting from successful prosecution or voluntary admission. 3 3
Petitioner's reliance on Agote, Ladjaalam, Evangelista, Garcia, Pangilinan,
Almeida, and Bernal is, therefore, misplaced. In each one of these cases, the accused
were exonerated of illegal possession of rearms because of their commission, as
shown by their conviction, of some other crime. 3 4 In the present case, however,
petitioner has only been accused of committing a violation of the COMELEC gun ban.
As accusation is not synonymous with guilt, there is yet no showing that petitioner did
in fact commit the other crime charged. 3 5 Consequently, the proviso does not yet
apply.
More applicable is Margarejo 3 6 where, as stated earlier, this Court a rmed the
denial of a motion to quash an information for illegal possession of rearm on the
ground that "the other offense charged [ i.e., violation of gun ban] . . . is not one of those
enumerated under R.A. 8294 . . . ." 3 7 in consonance with the earlier pronouncement in
Valdez 3 8 that "all pending cases involving illegal possession of rearm should continue
to be prosecuted and tried if no other crimes expressly indicated in Republic Act No.
8294 are involved . . . ." 3 9
In sum, when the other offense involved is one of those enumerated under R.A.
8294, any information for illegal possession of rearm should be quashed because the
illegal possession of rearm would have to be tried together with such other offense,
either considered as an aggravating circumstance in murder or homicide, 4 0 or
absorbed as an element of rebellion, insurrection, sedition or attempted coup d'etat. 4 1
Conversely, when the other offense involved is not one of those enumerated under R.A.
8294, then the separate case for illegal possession of rearm should continue to be
prosecuted.
Finally, as a general rule, the remedy of an accused from the denial of his motion
to quash is for him to go to trial on the merits, and if an adverse decision is rendered, to
appeal therefrom in the manner authorized by law. 4 2 Although the special civil action
fo r certiorari may be availed of in case there is a grave abuse of discretion, 4 3 the
appellate court correctly dismissed the petition as that vitiating error is not attendant in
the present case.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Carpio, Tinga and Velasco, Jr., JJ., concur.
Quisumbing, J., is on official leave.
Footnotes
1. CA rollo at 99-103.
2. Id. at 149.
3. Rules and Regulations on: (A) Bearing, Carrying or Transporting Firearms or Other Deadly
Weapons; (B) Security Personnel or Bodyguards; (C) Bearing Arms By Any Member of
Security or Police Organization of Government Agencies and Other Similar Organization;
(D) Organization or Maintenance of Reaction Forces During the Election Period in
Connection with the May 10, 2004, Synchronized National and Local Elections. THCASc
4. An Act Amending the Provisions of Presidential Decree No. 1866, as Amended, entitled
"CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE,
DEALING IN, ACQUISITION OR DISTRIBUTION OF FIREARMS, AMMUNITIONS, OR
EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS,
AMMUNITIONS OR EXPLOSIVES AND IMPOSING STIFFER PENALTIES FOR CERTAIN
VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES." (Took effect July 6, 1997).
5. CA rollo at 24. No copy found in RTC records.

6. Records, p. 1.
7. Rollo, p. 8.
8. Records, pp. 25-31.
9. Id. at 27.
10. Id. at 48-52.
11. En Banc.
12. 417 Phil. 506 (2001).
13. Id. at 512.
14. Records, p. 91.
15. CA rollo, pp. 2-60.
16. Id. at 99-103. Penned by Justice Arsenio J. Magpale with the concurrence of Justices
Sesinando E. Villon and Enrico A. Lanzanas.
17. Id. at 108-117.
18. Id. at 132. Penned by Justice Arsenio J. Magpale with the concurrence of Justices
Sesinando E. Villon and Enrico A. Lanzanas.
19. Id. at 131.

20. Rollo, p. 128.
21. Heirs of Griño v. Department of Agrarian Reform , G.R. No. 165073, June 30, 2006, 494
SCRA 329, 341 citing Republic v. Court of Appeals, 379 Phil. 92, 97 (2000).
22. Id. at 342, citing The President, Philippine Deposit Insurance Corporation v. Court of
Appeals, G.R. No. 151280, June 10, 2004, 431 SCRA 682, 688.
23. G.R. No. 142675, July 22, 2005, 464 SCRA 60.
24. 395 Phil. 1 (2000).

25. Evangelista v. Sistoza , 414 Phil. 874 (2001); People v. Garcia , 424 Phil. 158 (2002);
People v. Bernal, 437 Phil. 11 (2002); People v. Pangilinan , 443 Phil. 198 (2003); and
People v. Almeida, 463 Phil. 637 (2003).ATcaEH
26. Supra note 12.

27. 364 Phil. 259 (1999).
28. Supra note 23.
29. Id. at 75.
30. Supra note 24.
31. Id. at 35-36.
32. CONSTITUTION, Art. III, Sec. 14, par. (2).
33. Vide People v. Concepcion , 55 Phil. 485, 491 (1930), where this Court held that
"inasmuch as every defendant is presumed innocent until convicted by a competent
court after due process of law of the crime with which he is charged, [the accused] is still
innocent in the eyes of the law, notwithstanding the ling of the information against him
for the aforesaid crime."
34. Maintenance of drug den and direct assault with attempted homicide in Ladjaalam;
robbery in Evangelista; kidnapping for ransom with serious illegal detention in Garcia
and in Pangilinan; murder and gun ban violation in Bernal; illegal possession of drugs in
Almeida; and gun ban violation in Agote.
35. On the contrary, petitioner even claimed, through his "not guilty" plea in Criminal Case
No. C-137-04 that he did not commit a violation of the COMELEC Gun Ban. (Rollo, p. 8)
36. Supra note 12.

37. Supra note 13.
38. Supra note 27.
39. Id. at 279.
40. R.A. No. 8294, Sec. 1.
41. Ibid.
42. Soriano v. Casanova, G.R. No. 163400, March 31, 2006, 486 SCRA 431, 439.
43. Socrates v. Sandiganbayan, 324 Phil. 151, 176 (1996).

3.2 Aggravating Circumstances 2

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3.2 Aggravating Circumstances 2

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FIRST DIVISION

[G.R. No. 5292. August 28, 1909.]

THE UNITED STATES , plaintiff, vs . THE MORO MANALINDE , defendant.

Solicitor-General Harvey for plaintiff.

1. MURDER; ALEVOSIA; INTENT. — The fact that the victim of a treacherous

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[G.R. No. 94308. June 16, 1994.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. RUBEN E. ILAOA

1. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; REQUISITES; NOT

We a rm Ruben Ilaoa's guilt having been satisfactorily established by the evidence

3. TSN, 4 May 1988, p. 31; 17 October 1989, p. 11.

5. TSN, 4 May 1988, pp. 34-36; 7 November 1989, pp. 19-21.

8. TSN, 13 April 1988, pp. 14-15.

11. TSN, 7 November 1989, pp. 19-21.

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[G.R. No. 124319. May 13, 1998.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . GARI BIBAT Y

The Solicitor General for plaintiff-appellee.

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; DELAY IN

4. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; EVIDENT PREMEDITATION;

Q The same Lloyd del Rosario, the victim in this case?

In cross examination, he testi ed that he neither saw the two prosecution

Lino Asuncion III, testi ed among others: that he is a classmate of Gari

Rogelio Robles — (was recalled to the stand to testify contrary to what he

Appellant places reliance on the assignment of errors, that:

As well explained by the Solicitor General, "Persons do not necessarily react

Appellant theorizes that the testimony of Robles is not believable; ratiocinating,

A What if they turn their ire on me.

Narvasa, C .J ., Romero and Kapunan, JJ ., concur.

1. TSN, September 30. 1993, pp. 8-9, cited in Decision, p. 2.

19. Appellant's Brief, pp. 10-11.

20. 92 SCRA 198 [1978].

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[G.R. No. 95756. May 14, 1993.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. CRISOLOGO

The Solicitor General for plaintiff-appellee.

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; STANDS IN THE

IN VIOLATION of and contrary to ARTICLE 294 paragraph 1 of the Revised Penal

10. Id., p. 19.

18. Par. 14. id.

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27. Peo. v. Bundal, 3 Phil. 89.

32. Peo. v. Maloloy-on, 189 SCRA 250 [1988].

37. TSN, May 29, 1987, pp. 9-12, 17.

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[G.R. No. 94534. July 20, 1992.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. RODRIGO BIGCAS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF

Appellant Butron interposed self-defense in order to disclaim criminal liability. He,

1. Judge Fernando S. Ruiz, presiding.

6. TSN, November 9, 1989, 2-6; November 10, 1989, 2-6.

12. 182 SCRA 329 (1990).

17. 56 Phil. 98 (1931).

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[G.R. No. L-32914. August 30, 1974.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, v s . LAUREANO

Solicitor General Felix Q. Antonio, Assistant Solicitor General Octavio R. Ramirez

This is a murder case. The testimonies of the two prosecution eyewitnesses

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[G.R. No. L-44274. January 22, 1980.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. LUISITO SAN

Haydee B. Yorac for appellant.

"The deceased was identi ed to be Felimon Rivera, a driver of a passenger