G.R. No.

109138-39 April 27, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ALBERTO GAORANA y ERAN, 1 accused-

appellant.

PANGANIBAN, J.:

Minor inconsistencies in the testimony of a witness strengthen, rather than impair, credibility. Such
harmless and inconsequential errors are indicative of truth, not falsehood.

The Case

This is an appeal from the Decision 2 dated September 4, 1992, promulgated by the Regional Trial
Court (RTC) of Panabo, Davao, in Criminal Case Nos. 91-316 and 91-317, convicting Appellant Alberto
Gaorana 3 y Eran of two counts of rape and sentencing him to two terms of reclusion perpetua.

On March 13, 1991, a Criminal Complaint 4 was filed by Marivel J. Fuentes with the assistance of her
mother, Priscilla J. Fuentes, before Municipal Trial Court (MTC) Judge Daydews D. Villamor of Panabo,
Davao. After conducting preliminary investigation, the MTC recommended that appellant be charged
with two are separate cases of simple seduction. However, in a Resolution dated August 22,
1991, 5 Davao State Prosecutor I Castor B. Dorado and Provincial Prosecutor Francisco G. Rivero
modified the investigating judge's recommendation and charged appellant with two counts of rape.

Except for the dates of the commission of the crime, the two Informations contained the same
allegations. The first Information, docketed as Crim. Case No. 91-316, charged appellant as follows:  6

That on or about March 5, 1991, in the Municipality of Panabo, Province of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, by means of force and
intimidation, and with the use of a hunting knife, did then and there wilfully, unlawfully and feloniously
have carnal knowledge of Marivel Fuentes, against her will.

The commission of the foregoing offense is attended by the aggravating circumstance of [q]uasi-
[r]ecidivism.

The second Information, docketed as Crim. Case No. 91-317, charged appellant with rape committed
on March 6, 1991. 7 The cases were consolidated and filed before the RTC of Panabo, Davao. Upon
arraignment, appellant pleaded not guilty to both charges.  8

In due course, the trial court rendered the assailed Decision, the dispositive portion of which reads:  9

WHEREFORE, IN THE LIGHT OF THE FOREGOING, the Court finds Alberto Gaorana Y Iran guilty
beyond reasonable doubt of the two cases of rape, punishable under Article 335 of the Revised Penal
Code, and this Court hereby sentences the said accused to suffer and undergo the penalty of reclusion
perpetua for each count, with all the accessory penalties and to pay the costs.

The accused is also ordered to indemnify the victim, Marivel Fuentes, [in] the amount of FIFTY
THOUSAND (P50,000.00) PESOS.

Hence, this appeal. 10

The Facts
 Version of the Prosecution

In the Appellee's Brief, 11 the prosecution presented this version of the facts: 12

On March 5, 1991, before 2:00 o'clock in the afternoon, Marivel Fuentes, herein private complainant,
was cleaning her house located at DAPECOL, Panabo, Davao. At the same time, she was also putting
her younger brother and sister to sleep. Rowena Sanchez, common-law wife of appellant, arrived and
instructed her to go to her house which was about 20 meters away. 13 Private complainant finished
cleaning before she proceeded to Rowena's place.

When private complainant arrived in appellant's house, she saw appellant and Rowena lying down.
Rowena bade her to come in and told her to sit down. Rowena then stood up and told private
complainant that she [would] urinate. Appellant approached private complainant, covered her mouth
and pointed a hunting knife to her neck. He told her that he [would] kill her if she [would] tell her
mother. Private complainant fought appellant but appellant pulled her inside a room. Appellant made
her lie down on the floor. Appellant then took off his pants and opened private complainant's duster
and removed her panty. He put himself on top of private complainant and had intercourse with her. All
the while, private complainant's mouth was covered with a handkerchief.

After about five minutes, Rowena came back and saw appellant still on top of Marivel. Appellant
instructed Rowena to step out of the room. After a while, appellant stood up, put on his briefs and
called his wife inside the room. Both of them said, "Let us see."

Private complainant was allowed to leave appellant's house at 5:00 o'clock in the afternoon. Private
complainant's parents arrived at 7:00 o'clock in the evening but she did not report the incident to
them because she was afraid appellant might make good his threat (pp. 7-13, 20-24, 29-32, tsn,
March 30, 1992).

The second incident of rape occurred at around 3:00 o'clock in the morning of March 6, 1991. Private
complainant was sleeping in the sala with her brother and sister when she was awakened by the
kisses of appellant. Appellant had a knife which scared private complainant. Appellant pulled private
complainant from the mat, removed his pants, opened her duster and removed her panty, and again
had intercourse with her. Private complainant did not shout because she was afraid of appellant who
was a prisoner and had already killed somebody. After satisfying his lust, appellant left (pp. 14, 34-36,
tsn, ibid.).

Version of the Defense

Appellant interposes the defense of alibi and denial. In his Brief, 14 he presented the following version
of the facts:

EVIDENCE FOR THE DEFENSE:

MRS. ROWENA GAORANA testified that she is the wife of the accused Alberto Gaorana, and they have
one (1) child. She had known the accused since 1989 and had become his sweetheart since May 26,
1990. Gaorana [was] a living out prisoner which means that he [was] living in a house outside the
compound of DAPECOL. She became a resident of DAPECOL since 1989 when she was then living with
her mother and stepfather who [was] likewise a colonist. She knew Marivel Fuentes because they [had
been] neighbors since she arrived in DAPECOL in December 2, 1989. She was then 16 years old. She
and Marivel Fuentes [were] friends, and as such, they would talk sometimes and would practice how
to ride on a bicycle.

It is not true that she invited Marivel Fuentes to visit their house in DAPECOL at about 2 p.m. of March
5, 1991 because at that time and date, they were sleeping. However, on that date, she could recall
having met Marivel Fuentes in their house, when Marivel borrowed a pitcher from them. After
borrowing the pitcher, Marivel left and she continued sleeping. Then she stood up and went to her
mother's house 300 meters away to answer the call of nature. After 45 minutes she returned and saw
Marivel Fuentes sitting in their kitchen. Her husband was also sitting on the bench of their kitchen, two
(2) meters away from where Marivel was and conversing with the latter. She could not however hear
what they were talking about. She asked Marivel Fuentes why she was there and Marivel answered
that she was returning the pitcher she borrowed. She noticed that Marivel was somewhat embarrassed
because she turned her face from her. Then after around 30 minutes, Marivel went home.

It is not true that she just laughed when she saw them doing the sexual intercourse because if it were
true that she saw them doing that thing, maybe she would kill.

It is not also true that on [the] midnight of March 6, 1991, her common-law husband Alberto Gaorana
barged in[to] the house of Marivel Fuentes and had sexual intercourse with her, because at that time,
they were sleeping in the room of their house.

Whenever she would meet Marivel Fuentes after March 5 and 6, 1991, they just looked at each other.
Marivel would not talk to her because she believe[d] she was ashamed. She asked Marivel why she did
not care to answer. That was not the usual behavior of Marivel prior to March 5 and 6, because they
used to talk and laugh together whenever they were in company. She also asked her husband why
[I]nday (referring to Marivel) changed and her husband answered "I do not know why. You may know
it because you are close to each other." TSN, June 1, 1992, pp. 3-14.

Accused ALBERTO GAORANA, 27 years old, live-in partner of Rowena and a prisoner, testified that he
came to know Marivel Fuentes in 1989. He met her in their store, being a living but prisoner, [and] he
worked as a carpenter in the house of Fuentes family in DAPECOL in 1990.

At about 2 p.m. of March 5, 1991, he was in their house sleeping with his common-law-wife. He woke
up at 4 o'clock in the afternoon. His wife was still with him when he woke up. On said date he did not
see or meet Marivel Fuentes. What Marivel Fuentes are [sic] saying against him are not true because
he was sleeping at that time with his wife. (TSN, June 1, 1992, pp. 17-19).

Ruling of the Trial Court

The trial court gave full faith and credence to the testimony of complainant who was not shown to
have any motive to falsely testify against appellant. It ruled that it was improbable that a naive and
inexperienced 15-year old girl would fabricate her own ravishment and subject herself to the
humiliation and embarrassment of a public trial if her charges were not true. Further, her testimony
was corroborated by Dr. Bendijo who, after conducting physical examination on her, found that her
hymen was no longer intact. Her positive and categorical testimony prevailed over appellant's bare
denial and alibi.

The trial court also ruled that appellant had a motive to commit the crime. Complainant's parents
supposedly failed to give him their payment for his common-law wife's laundry services.

Assignment of Errors

In his Brief, appellant imputes the following errors to the court a quo: 15

The trial court erred in finding the testimony of Complainant Marivel Fuentes as credible despite its
inconsistencies.

II
The trial court erred in finding Accused-Appellant Alberto Gaorana guilty beyond reasonable doubt of
the crime of rape despite the weakness of the evidence for the prosecution.

The Court's Ruling

The appeal is bereft of merit.

First Issue: Harmless Inconsistencies

Appellant contends that the following cast "inconsistencies" cast serious doubt on the veracity and
reliability of complainant's testimony: (1) complainant declared that her father wanted her to be away
from DAPECOL (Davao Penal Colony), but she also claimed that he was happy when she returned
because he missed her terribly; 16 (2) on cross-examination, she testified that it took Rowena five
minutes to answer the call of nature 17 but, later on, she said that Rowena returned after an
hour; 18 (3) during the direct examination she said that appellant "opened" her house dress, 19 but on
cross-examination she said that he pulled her house dress up to her breast; 20 and (4) she claimed
that appellant had already pulled his penis out of her vagina when Rowena returned, which was at the
same time that complainant opened her eyes 21 - a statement contradicting her earlier one which
pointed out that appellant's penis was still inside her private part when Rowena saw the two of
them. 22

The alleged discrepancies do not discredit the complainant's testimony. The claimed inconsistency
regarding the father's reaction to the complainant's return to DAPECOL is more apparent than real.
Her father, being an inmate himself, must have realized that the penal colony was not an ideal place
for a girl to grow up in; thus, he welcomed the possibility that his daughter would live outside the
colony with her aunt. By the same token, he cannot be faulted for missing a daughter whom he had
not seen for some time.

Equally insignificant is the discrepancy regarding complainant's account of the length of time it took
Rowena to defecate and return. This is a minor lapse which is not unusual when a person is recounting
a humiliating and painful experience.

On the other hand, whether the complainant's house dress was "opened" or "pulled up" is merely a
semantic discrepancy. It could very well be attributed to an error in the translation of the testimony
from the dialect to English. In any case, both terms similarly describe how appellant exposed the
complainant's body to enable him to commit the crime.

Whether appellant's penis was still inside complainant's vagina when Rowena returned is similarly a
trivial matter. In either case, it is undisputed that appellant, with the use of force and intimidation,
had carnal knowledge of the complainant.

These alleged inconsistencies are inconsequential in the face of the essential fact that appellant forced
the complainant to have sexual intercourse with him. The Court has consistently adhered to the rule
that inconsistencies on minor derails strengthen, rather than impair, the witness' credibility. They are
considered more as badges of truth, rather than as indicia of falsehood. 23

Appellant also contends that the testimony of complainant was contrary to human experience,
because he could not have stayed at her house for thirty minutes just threatening her and doing
nothing else, after he had supposedly ravished her for two minutes around 3:00 a.m. of March 6,
1991. The Court is not persuaded.

Rape is essentially an offense committed in secrecy, generally executed in dark or deserted and
secluded places away from prying eyes. Thus, conviction for this crime rests largely upon the
credibility of the offended party who is usually the sole witness of its actual occurrence. 24 Thus, herein
complainant's testimony must thus be considered and calibrated in its entirety, and not by truncated
portions or isolated passages thereof. 25
The complainant cannot be faulted for her inability to do anything, while appellant continuously
threatened her for thirty minutes after he had defiled her body. She has more than sufficiently
explained that she was deeply distressed and overcome with fear. In People vs. Pontilar, the Court
stated: 26

It is a truism that "the workings of the human mind placed under a great deal of emotional and
psychological stress are unpredictable, and different people react differently. There is no standard
form of human behavioral response when one is confronted with a strange, startling, frightful or
traumatic experience . . . .

The assessment of a witness' credibility has always been considered to be the province of the trial
court. After all, the trial judge had the opportunity, which appellate courts do not have, to observe the
witness' demeanor and deportment on the stand. 27 In the case at bar, appellant failed to show any
cogent reason to justify a departure from this time-honored rule.

Second Issue: Evidence of Guilt Sufficient

Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
(1) when force or intimidation is used; (2) when the woman is deprived of reason or is otherwise
unconscious; and (3) when the woman is under twelve years of age. 28 The prosecution established
that appellant raped the complainant the first time in the following manner: 29

Q After you laid [sic] down because Alberto Gaorana pointed a knife on [sic] your neck, what did
Alberto Gaorana do to you?

A He removed his pants.

xxx xxx xxx

Q Now, when Alberto Gaorana succeeded in removing your panty, what did Alberto Gaorana do to
you?

A After he removed my panty, he put himself on top of me . . . .

xxx xxx xxx

Q Was the penis of Alberto Gaorana able to penetrate . . . your vagina?

A Yes, sir.

xxx xxx xxx

Q Now, can you tell this Honorable Court how long did Alberto Gaorana sexually abused [sic] you?

A About 5 minutes. (Emphasis supplied.)

The perpetration of rape for the second time was also established: 30

Q Now can you tell this Honorable Court what happened on March 6, 1991 at 3:00 o'clock in the
morning?

A I was surprised [at] the kisses made to me by Alberto Gaorana and he was bringing [sic] a hunting
knife and that was the reason I was awakened.
 xxx xxx xxx

Q When you were brought to the floormat [sic], what did Alberto Gaorana do?

A He removed his pants.

Q Then, what did he do?

A He opened my duster.

xxx xxx xxx

Q And you said that you were sexually abused by Alberto Gaorana, was he able to penetrate on [sic]
your vagina?

A Yes, sir. (Emphasis supplied.)

The complainant positively identified appellant as her ravisher. The first rape was committed in the
afternoon at appellant's house where there was sufficient light to identify the culprit. Despite the
relatively dark situs when the second rape was committed, complainant knew that the malefactor was
appellant because there was sufficient moonlight; besides, she was familiar with him, as he had been
their neighbor for a long time. As held in People v. Castillo, 31 identification is facilitated by the fact
that the person has gained familiarity with another.

Appellant's alibi that he was at home sleeping during the second incident is negligible, because he
failed to prove the physical impossibility of his presence at the scene of the crime. His house and that
of the complainant were only 20 meters apart. Further, it was undisputed that appellant had access to
the house of the complainant because he had constructed its door. 32

The trial court ruled that appellant had a motive in raping the complainant. This is a surplusage,
considering that motive is not necessary in rape cases when the felon has been positively identified.
Appellant alleged that the complainant's mother instigated the charges against him, because she did
not pay for the laundry services of his common-law wife. Such bizarre reasoning does not explain why
a mother would subject her young daughter to the shame, scandal, embarrassment and anxiety
concomitant with a prosecution for rape. Indeed, complainant and her mother could not have been
impelled by any motive other than to bring to justice the author of the sexual assault.  33

In sum, no evidence has been presented to show that Marivel or her mother fabricated the charges
against appellant.

Quasi-Recidivism Was Not Established

The two Informations alleged that both instances of rape were attended by the aggravating
circumstance of quasi-recidivism. The trial court made no express ruling that appellant was a quasi-
recidivist, and rightly so. During the trial, the prosecution manifested that appellant had been
convicted by the Regional Trial Court of Kabangkalan, Negros Occidental in Crim. Case No. 013 on
March 29, 1988 and was serving sentence for the crime of homicide. 34 However, the prosecution
failed or neglected to present in evidence the record of appellant's previous conviction. Quasi-
recidivism, like recidivism and reiteracion, necessitates the presentation of a certified copy of the
sentence convicting an accused. 35 The fact that appellant was an inmate of DAPECOL does not prove
that final judgment had been rendered against him. 36

Civil Indemnity Improperly Imposed

The trial court erred in imposing on appellant civil indemnity of only P50,000. Appellant should pay
indemnity of P50,000 for each count of rape. 37 Because he was convicted of two counts of rape, he
should indemnify the victim in the amount of P100,000.

WHEREFORE, the appeal is hereby DENIED. The assailed Decision is AFFIRMED with the
MODIFICATION that appellant is ORDERED to PAY the offended party civil indemnity in the amount of
P100,000. Costs against appellant.

SO ORDERED.

[G.R. No. 122498. September 27, 2000.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ELMEDIO CAJARA, Accused-Appellant.

DECISION

BELLOSILLO, J.:

ELMEDIO CAJARA alias Elming is before us on automatic review after having been found guilty by the trial
court of Qualified Rape and sentenced to death.

The Information alleged that on 30 May 1994 in Barangay Serum, Basey, Samar, the accused Elmedio
Cajara, a brother-in-law of Marita B. Cajote and husband of her older sister, by means of force and
intimidation, willfully and feloniously had carnal knowledge of her against her will and consent. 1

On 16 March 1995 the trial court found the accused guilty of rape as defined in Art. 335 of The Revised
Penal Code in relation to Sec. 11 of RA 7659, and sentenced him to death. 2 chanrob1es virtua1 1aw 1ibrary

On 18 May 1994 16-year old Marita Cajote, a resident of Manila, arrived in Basey, Samar, and stayed with
her sister Marie. The following day, Marita was fetched by another sister, Merly Tagana also known as
Meling, and by the latter’s husband, Accused Elmedio Cajara also known as Elming. Upon being told by
Meling that they would be going to Sulod to get copra, Marita went with Meling and Elming to the couple’s
house in Sitio Catuhaan in Barangay Serum. Since then until 30 May 1994 Marita stayed with Meling and
Elming together with their two (2) small children in a house consisting of only one room without any
partition.

In the evening of 30 May 1994 complaining witness Marita Cajote slept at one end of the room with the two
(2) children, with Meling and Elming at the other end. At about two o’clock the following morning Marita was
awakened by the weight of accused who was already on top of her. The accused who was holding a bolo told
her to keep quiet or he would kill her. He then placed his bolo aside and held Marita’s hands with his right
hand. With his left hand accused lowered Marita’s pants as well as her panty down to her knees. Marita
shouted for help but her sister Meling just wrapped her head with their mosquito net and pretended to be
asleep. Marita struggled continuously against the advances of the accused but he was much stronger, while
she was getting weak. The accused first inserted his fingers into Marita’s private part and later succeeded in
inserting his penis into her vagina. Meling then pulled Elming away from Marita and hit Elming in the eye.
Elming boxed Meling on the mouth and kicked her when she fell on the floor. Elming went back to Marita
and continued with his beastly acts. By this time, Marita was already too weak to resist. Elming inserted his
fingers first and then his penis into her private organ. The older of the two (2) children of Meling cried.
Meling who was holding her youngest child helplessly watched the accused rape her younger sister. chanrob1es virtua1 1aw 1ibrary

After satisfying his lust, the accused asked Marita to go away with him. Marita cried and dressed herself.
When accused went to the door, she jumped out of the window and ran away, but the accused chased her
and after overtaking her threatened to kill her if she would return to their house. So Marita pretended to
submit to his wishes. Fortunately she found an opportunity to hide herself from the accused. Then she
dashed for safety to the house of her sister Marie and then to another sister Lilia. Marita revealed to both of
them what the accused had done to her. But her sisters advised her not to file a criminal case against their
brother-in-law for fear that he might kill all of them. But Marita went to the chief of the "barangay tanod"
whom she called Mano Henry, who accompanied her to the barangay captain. The barangay captain,
Rolando Jaingue, also made the same advice against filing a criminal charge against the accused as the
latter might attack and kill them. The accused was known in the community to have killed six (6) people.
Finally, barangay captain Jaingue issued an indorsement of the case to the Philippine National Police
stationed in Basey, Samar. 3

When physically examined by Dr. Danilo Fami, Municipal Health Officer of Basey, Samar, Marita was found
to have a healed laceration of her hymen at 4 o’clock position.

In his defense, the accused Elmedio Cajara denied the charge against him. He alleged that Marita was the
maternal half-sister of Meling, his common-law wife; that at around 6 o’clock in the evening of 30 May 1994
he was in his house with Meling and their two (2) children when Marita arrived and invited them for a drink;
that since he was then busy gathering tuba he was able to join them only at around 8 o’clock until 11 o’clock
that evening after which he went to sleep. However, at around 2 o’clock in the morning he was awakened by
the quarrel of his wife and Marita; that when his wife asked Marita why the latter placed her leg over him,
Marita answered that she did not know; and, that Meling ordered her to get out of their house, but before
she left Marita said that she would file a case against him who was on parole. 4

Merly Tagana alias Meling, common-law wife of the accused, corroborated his testimony. When asked on
direct examination why her sister Marita would file a rape charge against her husband, Meling denied that
her husband raped Marita, saying that "it was not the mistake of (her) husband because he is a man and
that she is a girl." 5

Persuaded beyond reasonable doubt that Elmedio Cajara did rape 16-year old Marita Cajote on 30 May 1994
in front of his common-law wife and his two small children, the trial court convicted him as charged and
sentenced him to death.

In his Brief the accused faults the trial court for giving credence to the testimony of the rape victim, Marita
Cajote, despite its failure to meet the test of moral certainty; that the testimony of Merly Tagana, his
common-law wife, that there was no rape should have been given more weight than the testimony of Marita
Cajote because Meling being a half-sister of Marita would have sympathized with her if the rape incident was
true; and, that Marita’s claim that she was a virgin before she was raped was belied by the testimony of the
medico-legal officer that there was a laceration which could have healed even before the rape incident. chanrob1es virtua1 1aw 1ibrary

The Office of the Solicitor General, in its brief, belittles the accused for failing to show any compelling or
justifiable reason to set aside his conviction for rape and his penalty of death, citing Art 335 of The Revised
Penal Code, as amended by RA 7659, the relevant portion of which states: jgc:chanrobles.com.ph

"The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances: . . . . 3. when rape is committed in full view of the husband, parent, any of the
children or other relatives within the third degree of consanguinity.

The Solicitor General is correct in finding the accused guilty of rape. The bare denial of the accused and his
common-law wife cannot overcome the categorical testimony of the victim. Denial when unsubstantiated by
clear and convincing evidence is a negative and self-serving evidence which deserves no greater evidentiary
value than the testimony of a credible witness on affirmative matters. 6 No woman, especially of tender age,
would concoct a story of defloration, allow an examination of her private parts and thereafter pervert herself
by being subjected to a public trial if she was not motivated solely by the desire to have the culprit
apprehended and punished. 7 A complainant’s act in immediately reporting the commission of the rape has
been considered by this Court as a factor strengthening her credibility. The immediate decision of Marita to
report the crime to her sisters and the barangay officials as well as to face police authorities and submit to a
medical examination are a mute but eloquent testimony of the truth of her charge against accused. chanrob1es virtua1 1aw 1ibrary

We agree with the finding of the trial court that Marita’s positive identification of the accused as the person
who raped her was given in a categorical, straightforward and spontaneous manner which rendered it
worthy of faith and belief —

Q: While you were asleep on May 30, 1994, at 2:00 in the morning, can you still recall if you were
awakened and why?

A: I was awakened because I was surprised.

Q: Why were you surprised?

A: Because he was on top of me.

Q: Who was the person on top of you?

A: Elming Cajara.

Q: How do you know that it was Elming?

A: Because there was light for the whole morning.

Q: Where was this light being placed?

A: On the altar.

Q: How far was the light to the place where you were lying down?

A: About two meters.

Q: Did Elming say anything to you when he was on top of you?

A: Yes, ma’am . . . . He said keep quiet . . . . If you will make a noise I will kill you.

Q: What else?

A: I shouted . . . . Help, help Manding.

Q: Who is this Manding you are referring to?

A: Meling.

Q: Your elder sister?

A: Yes, ma’am.

Q: And when Elming Cajara warned you not to make any noise did you observe if he has (sic) any weapon
with him?

A: Yes he has . . . . Sundang.

Q: Where was the bolo?

A: Near the head . . . . Elming Cajara at the time he slept he has a bolo with him.

Q: Where is this bolo you are referring to?

A: Near the head he was holding.

Q: He was holding the bolo with what hand?

A: Right hand.

Q: About you when you shouted, what else did you do while he was on top of you.

A: I kept on asking for help because he was holding my two hands over my head.

Q: With what hand he was holding your hands as he was holding the bolo?

A: When he told me not to make any noise he was holding my two hands.

Q: With what hand and how did he hold your two hands?
A: His right hand.

Q: How about his left hand?

A: Undressing me.

Q: What was being undressed? (sic)

A: My maong pants . . . . Garterized.

Q: Do (sic) you have panty at that time?

A: Yes, ma’am.

Q: How about your panty, was it undressed?

A: Yes, ma’am.

Q: Up to what portion of your body were you undressed?

A: Middle part of my legs.

Q: As you were shouting for your Manding to help you, what did your Manding do?

A: After I was shouting for help for a long time, Manding grabbed Elming from me and Meling punched
Elming hitting his eye.

Q: When Meling grabbed and punched Elming, what was Elming doing at that time?

A: He inserted his finger into my vagina after which he inserted his penis into my vagina.

Q: What did you do when Elming inserted his finger into your vagina?

A: I was trying to resist (from) him but I could not as he was holding my hands.

Q: While he was inserting his penis to your vagina, what did you do?

A: I was trying to resist and shouting and I was weak . . . .

Q: After Meling pulled her husband, what happened next?

A: Meling fell because she was punched by Elming . . . . She was hit on her mouth and she was kicked . . . .

Q: After kicking Meling what did Elming do?

A: After Elming kicked Meling and I was able to put on my panty Elming came back.

Q: When Elming went back to you, what did Elming do to you?

A: . . . he undressed me again . . . . he abused me again . . . . he was inserting his finger and penis into my
vagina.

Q: Was he able to insert again his penis into your vagina?

A: Yes, ma’am . . .

Q: For how many times have (sic) he inserted his penis?

A: Twice. 8

The argument of the accused is untenable that the testimony of his common-law wife that there was no rape
should have been believed by the trial court because she was Marita’s half-sister who would naturally
protect Marita’s honor if she was indeed raped. Not every witness to a crime can be expected to act
reasonably and conformably to the expectation of mankind. 9 We have noted that in some instances it was
but natural for witnesses not to come to the victim’s rescue for fear of their lives, especially when
threatened with harm should they do so. Self preservation is still recognized as the most fundamental
human instinct. 10

In the case of Merly Tagana, although she is half-sister to Marita, she is also the common-law wife of the
accused. While relationship between the accused and his witness is not necessarily detrimental to the
former’s line of defense, this relationship taken together with the want of logic in the declarations of the
witness, yields to the conclusion that her testimony is not credible. 11 The trial court found evident
discrepancies in Merly Tagana’s testimony which cannot but raise well-founded and overriding doubts on her
testimony. Merly Tagana contradicted the testimony of the accused and herself twice when she stated that
Marita slept in the house with her and the accused on 29 May 1994, the night before the rape. 12 Although
she testified that the accused did not rape her sister, she complained on the witness stand that it was not
the mistake of the accused to have done what he did because he was a man and Marita was a girl. The
opinion of the trial court as to who of the witnesses should be believed is entitled to great respect on the
oft-repeated rationale born of judicial experience that the trial judge who heard the witnesses testify and
had the occasion to observe their demeanor on the stand was in a vantage position to determine who of the
witnesses deserve credence. 13 cralaw : red

The assertion of the accused that Marita was no longer a virgin when she was raped will not exculpate him
from criminal liability. The records show that Marita was sexually abused twice. After inserting his fingers,
the accused inserted his organ into her private part, and after awhile, Accused repeated the sexual abuse.
Clearly, when Marita was raped for the second time, she was no longer a virgin; she could have already lost
her virginity during the first rape. Further, well-settled is the rule that prior sexual intercourse which could
have resulted in hymenal laceration is not necessary in rape cases for virginity is not an element of rape. 14
It should be emphasized however that since the Information charged only one offense, even if the evidence
showed a second act of forcible intercourse, conviction for one rape was proper. 15

The trial court in the case at bar imposed the penalty of death upon the accused after taking into account
the following circumstances, i.e., the minority of Marita Cajote who was only 16-years old at the time of the
rape; relationship by affinity where the victim was said to be the sister of the common-law wife of the
accused; and, finally, the fact that the rape was committed by the accused in the full view of his wife and
children. The relevant portions of Sec. 11 of RA 7659 amending Art. 335 of The Revised Penal Code, which
took effect 31 December 1993, state: chanrob1es virtual 1aw library

When and how rape is 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 or is demented.

The crime of rape shall be punished by reclusion perpetua . . . . The death penalty shall also be imposed if
the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is
under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree or the common-law spouse of parent of the victim . . . .
3. When the rape is committed in full view of the husband, parent, any of the children or other relatives
within the third degree of consanguinity . . . .

Contrary to the ruling of the trial court and the stand of the Solicitor General, the accused can only be
convicted of simple rape punishable by reclusion perpetua. It was error for the trial court to impose the
penalty of death. Although the circumstance of relationship by affinity within the third civil degree was
alleged in the Information, evidence for the prosecution clearly showed the lack or absence of such
circumstance to qualify the rape because the accused and Merly Tagana, sister of the victim Marita Cajote,
were mere common-law husband and wife and were not legally married at the time of the rape. The accused
and the victim cannot be said to be related by affinity within the third civil degree at the time of the
commission of the crime.

Neither can the accused be convicted of qualified rape on the basis of the circumstance that the rape was
committed in full view of the relatives of the victim within the third degree of consanguinity because this
qualifying circumstance was not pleaded in the Information or in the Complaint against the accused.

The Constitution guarantees the right of every person accused in a criminal prosecution to be informed of
the nature and cause of the accusation against him. Thus, it is fundamental that every element of the
offense must be alleged in the complaint or information. The main purpose of requiring the various elements
of a crime to be set out in an information is to enable the accused to suitably prepare his defense. 16

In People v. Morena 17 this Court explained that it would be a denial of the accused of his right to be
informed of the charges against him and, consequently, a denial of due process if he is convicted of an
offense other than that charged in the complaint or information. Hence, when the information alleges rape
by force and intimidation under par. 1, Art. 335, of The Revised Penal Code, the accused cannot be
convicted of rape under pars. 2 or 3 of the same Article. 18 In this case, since the accused was charged with
rape qualified by minority and relationship under the first attendant circumstance where the death penalty is
imposable, he cannot be convicted of rape qualified by the third attendant circumstance of commission of
rape within the full view of the relatives of the victim, since this was not alleged in the Information.
chanrob1es virtua1 1aw 1ibrary

The records show that the crime was aggravated by reiteracion under Art. 14, par. 10, of The Revised Penal
Code, the accused having been convicted of frustrated murder in 1975 and of homicide, frustrated homicide,
trespass to dwelling, illegal possession of firearms and murder sometime in 1989 where his sentences were
later commuted to imprisonment for 23 years and a fine of P200,000.00. He was granted conditional pardon
by the President of the Philippines on 8 November 1991. 19 Reiteracion or habituality under Art. 14, par. 10,
herein cited, is present when the accused has been previously punished for an offense to which the law
attaches an equal or greater penalty than that attached by law to the second offense or for two or more
offenses to which it attaches a lighter penalty. As already discussed, herein accused can be convicted only of
simple rape and the imposable penalty therefor is reclusion perpetua. Where the law prescribes a single
indivisible penalty, it shall be applied regardless of the mitigating or aggravating circumstances attendant to
the crime, such as in the instant case.

We note that the trial court did not award any civil indemnity. Pursuant to current jurisprudence and without
need of further proof, we award the victim Marita Cajote an indemnity of P50,000.00 and moral damages of
P50,000.00. In People v. Prades 20 the Court resolved that moral damages may additionally be awarded to
the victim in the criminal proceeding in such amount as the Court may deem just without the need for
pleading or proof of the basis therefor.
chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the Decision of the trial court convicting the accused ELMEDIO CAJARA alias Elming of
Qualified Rape is MODIFIED to the effect that he is convicted instead only of Simple Rape and is sentenced
to suffer the penalty of reclusion perpetua. He is further ordered to pay the victim Marita B. Cajote civil
indemnity of P50,000.00 and moral damages of another P50,000.00. Costs de oficio.

SO ORDERED.

G.R. No. 124319 May 13, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. GARI BIBAT Y DESCARGAR, defendant-

appellant.

PURISIMA, J.:

Appeal interposed by accused Gari Bibat y Descargar from the judgment rendered by Branch IV of the
Regional Trial Court of Manila, finding 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:

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 inflicting 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 oficio, 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 fled 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 testified 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 first
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.

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 fled, 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 testified 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, testified 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 testified 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 testified 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 final 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 final
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 testified 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.
On cross examination, he testified 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, testified 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, testified 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/final 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 final 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 testified 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 quo handed down its decision in question; disposing, thus:

Wherefore, with all the foregoing, the Court finds 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:

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 finding 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 findings of the trial court case 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 testified 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 sufficiently 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 five meters
away. The possibility of her recalling even the minutest details cannot therefore be ruled out.

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 testified 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 profit. 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 insignificant 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." 10

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." 11

To buttress his theory that he was actually reviewing for his final 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 identification, 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. 12

In the instant case, prosecution witness Nona Cinco positively identified appellant as the culprit.
Another prosecution witness, Rogelio Robles, testified 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." 13 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.  14

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, 15 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. 16

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 sufficient lapse of time between the determination and execution to allow him to reflect upon the
consequences of his act. 17

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. 18

The appellant, in his brief, implies that the first 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 testified 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. 19

At first glance, it may seem that the first 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.

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 nobles 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 first requisite of evident
premeditation appears to have been thoroughly and sufficiently 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 sufficient lapse of time for appellant to reflect on the
consequences of his dastardly act.
As held in the case of People v. Dumdum 20 "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.

G.R. No. 85735 January 18, 1994

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JULIO LUG-

AW and ROGELIO BANNAY alias JUNIOR BANNAY, defendant-
appellants.

The Solicitor General for plaintiff-appellee. chanrobles virtual law library

Public Attorney's Office for accused-appellant.

ROMERO, J.:

This case demonstrates how passion can sway people who perceive
that their right to till the soil is being violated - Carlos Pal-loy was
shot to death as he was fencing the boundary limits of the land he
was farming by persons identified with the owner of the land
adjacent to his own and with whom Pal-loy had a boundary
dispute. chanroblesvirtualawlibrary chanrobles virtual law library

Pal-loy was farming part of the communal forest land located in

Sitio Kalipkip, Sto. Niño, Maddela, Quirino. Despite the boundary
dispute between him and his neighbor, Conchita Tipon (Nipol or
Ngipol), on December 12, 1985, Pal-loy straightened out the
boundary line by putting up a fence allegedly upon the instruction of
the public forester. 1 chanrobles virtual law library

As Pal-loy went about the task, his 13-year old-daughter, Sonia,

and another daughter named Carina, followed him around. Pal-loy
was proceeding towards the house when Sonia heard a gun report.
Immediately, she went uphill and just as a second gun report
resounded, she saw Rogelio Bannay and Julio Lug-aw from a
distance of around four meters. She saw, too, that as her father
was about to draw his bolo, Lug-aw shot him. chanroblesvirtualawlibrary chanrobles virtual law library
Approaching here father, she found him wounded on the right
shoulder and the lower portion of the breast. Pal-loy asked her to
call her mother. Sonia obeyed and together with her mother, they
returned to him. He told them that his assailants were Lug-aw and
Bannay. Her mother told her to seek help but no one responded. It
was only when her mother herself called for help that Boy Culap,
Gorio Gay-yaman and Patumbay Immul-yap came to their
assistance. They brought Pal-loy to their house. chanroblesvirtualawlibrary chanrobles virtual law library

According to Sonia, Lug-aw was behind a tree stump when he shot

her father. Bannay, who was with Lug-aw, was hiding and he did
not do anything. 2She was around ten meters from the two but she
could not have seen them had she and her sister Carina not climbed
a tree after the first shot. After shooting Pal-loy, Lug-aw ran
towards the left side of Pal-loy with Bannay following him. Sonia
saw the gun used in shooting hr father but could not tell its
caliber. 3
chanrobles virtual law library

Carmen, Pal-loy's wife, was at home at around 5:00 o'clock in the

afternoon of December 12, 1985 when he heard a gun report which
was followed by another shot three minutes later. She rushed to
where she thought she heard the shots and found her daughters
hiding behind the stump of a tree near their father. Her daughters
informed her that their father's assailants were Julio
Lug-aw and Junior Bannay, the nephew of Conchita Tipon. Her
husband himself corroborated this and told her, "Awan sabali nga
pimmaltog, nangpatay kaniak no haan nga ni Julio Lug-aw kenni
Rogelio Bannay" meaning, "nobody killed me except Lug-aw and
Bannay." 4 chanrobles virtual law library

Instructing her daughters to look after their father, Carmen

forthwith proceeded to the barangay captain and councilmen of Sto.
Niño to ask for help. Since no one came to help her, she sought the
assistance of her neighbors. Her husband died at around 12 o'clock
midnight and they buried him within the premises of their
residence. 5 chanrobles virtual law library

Having heard of the "suspicious circumstances" surrounding the

death of Pal-loy, the police station commander in Maddela
requested the municipal health officer to conduct an autopsy after
the body of Pal-loy shall have been exhumed. 6For his part, the
municipal health officer, Dr. Teodomiro R. Hufana, Jr., manifested
before the municipal trial judge that after the burial of Pal-loy on
December 15, 1985, the police acted on the case only upon the
order of the commanding officer of the 166th PC company. Dr.
Hufana also requested that the police bring down the body of Pal-
loy from the mountain as he was incapable of negotiating the six-
kilometer distance to the place where Pal-loy was buried. 7 chanrobles virtual law library

Upon exhuming the body on July 7, 1987, Dr. Hufana found it

dressed in white T-shirt and wrapped in a blanket. The bones were
all in "chronological order" and there were four pellets in the lower
quadrant of the abdomen and three pellets in the thoracic cage.
There were two holes on the right side of the back of the T-shirt
which were "probably the exit of the two pellets." According to Dr.
Hufana, Pal-loy could have died of "severe hemorrhage secondary
to gunshot wound." 8 chanrobles virtual law library

The police filed before the municipal trial court of Maddela a

complaint for murder against Lug-aw and Bannay on October 29,
1986. 9Bannay was arrested on November 18, 1986 while Lug-aw
was apprehended the following day. 10The court thereafter fixed
their bailbond at P20,000.00 each 11but it was later reduced to
P12,000.00 each. 12Lug-aw and Bannay were then ordered released
from custody in an Order dated January 26, 1987 upon posting of
the bailbond. 13On May 19, 1987, the following information was filed
against them:

That on or about 5:00 o'clock in the afternoon of December 12,

1985 in barangay Sto. Niño, Municipality of Maddela, Province of
Quirino, Philippines, the above-named accused, armed with
firearms, with intent to kill, conspiring, confederating and mutually
helping one another, attended with treachery and evident
premeditation, did then and there wilfully, unlawfully and
feloniously, shot CARLOS PAL-LOY which caused the death of the
latter.
chanroblesvirtualawlibrary chanrobles virtual law library

That the crime was attended by the qualifying circumstances of

treachery and evident premeditation. chanroblesvirtualawlibrary chanrobles virtual law library
CONTRARY TO LAW.

Testifying in his own defense, Julio Lug-aw, the son-in-law of

Conchita Nipol, swore that he was plowing his farm in Nalungtutan,
Nagtipunan, Quirino around 16 to 17 kilometers away from Sitio
Kalipkip, Sto. Niño, Maddela, Quirino when the shooting occurred.
Sitio Kalipkip can be reached on foot from Nalungtutan for five (5)
hours as the road between them can be negotiated only by a 6 x 6
truck when the river is shallow. He denied farming his mother-in-
law's agricultural land in Sitio Kalipkip as he never set foot therein
except when he got married. He expressed amazement at Sonia
Pal-loy's testimony that he was the gunwielder, repeatedly denying
any grudges between him and the victim's family. 14 chanrobles virtual law library

Rogelio Bannay whose house in Nalungtutan was around fifty

meters away from that of Lug-aw, testified that when the crime
occurred, he was at home "peeling peanuts" with his wife. He had
gone to Sto. Niño in January 1984 to attend a wedding but he had
not been to Sitio Kalipkip. He belonged to the same Ifugao tribe as
Carlos and Carmen Pal-loy and the latter was his barriomate in
Banawe. Like Lug-aw, he disclaimed bearing any grudge against
Pal-loy and his family. Bannay Buanan and Conchita Nipol, his
relatives in Sitio Kalipkip, indeed had a farm adjacent to
the kaingin  of Pal-loy but he learned from his relatives that they
and Pal-loy enjoyed "good company" (timpuyog). 15 chanrobles virtual law library

Both alibis of Lug-aw and Bannay were supported by Jovito Pascual,

the barangay captain of San Dionisio II, Nagtipunan, Quirino, who
testified that when the crime transpired, he saw Lug-aw plowing his
farm with four other persons. He also saw Bannay "peeling peanuts"
at home. 16In its effort to discredit the testimony of Sonia Pal-loy,
the defense presented Mario Lingay, a farmer and storekeeper in
Dipintin, Sangbay East, Nagtipunan, Quirino, who testified that on
December 13, 1985, two of Pal-loy's children came to his store to
buy petroleum gas and gas and when he asked them who killed
their father, both allegedly replied, "I don't know." Lingay asked the
children's names but in a rush, they failed to answer him. Only later
did he learn that their names were Sonia and Carmen. 17 chanrobles virtual law library
In its decision of September 8, 1988, the lower court 18ruled that
the alibi and denial interposed by the defense cannot overcome the
positive identification of the accused by Sonia Pal-loy. Appreciating
both treachery and evident premeditation against the accused, the
lower court disposed of the case, as follows:

IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the

prosecution had proven the guilt of the accused Julio Lug-aw and
Rogelio Bannay beyond reasonable doubt. Accordingly, the accused
ROGELIO BANNAY and JULIO LUG-AW are hereby sentenced
to reclusion perpetua or life imprisonment plus the accessory
penalties provided by law and they are further ordered to indemnify
the heirs of the victim Carlos
Pal-loy in the amount of Thirty Thousand (P30,000.00) Pesos. Cost
against the accused. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

The accused then filed a motion for "new trial and/or consideration"
based on the "inefficient legal service" rendered by the CLAO
(Citizens Legal Assistance Office) which allegedly denied the
accused due process and prevented them from properly ventilating
their cause. 19Attached to the motion were the affidavits of: (1)
Bannay attesting to the fact that before the promulgation of the
decision, Carmen Pal-loy, the victim's widow, twice approached him
begging for forgiveness; telling him that she was just induced to
frame up the accused and expressed her willingness to testify to
prove that both accused were innocent; (2) Fernando Lablalong,
stating that he was with Lug-aw plowing the field on December 12,
1985; that he was in the house of Bannay when Carmen Pal-loy
confessed that she and her daughters were induced to point to the
accused as the killers, and that he confirmed the fact that it was
physically impossible for the accused to have been at the scene of
the crime, and (3) Gregorio Gayyaman, swearing that he was one of
those who helped Carmen bring her dead husband home; that being
a relative of Pal-loy, he asked Carmen the name of the killer but she
replied that she did not know; that while he and the others made
Pal-loy's coffin , no mention of the names of the accused as the
killers; that it was only after Carmen had lived with one Carlos
Capinpin that the accused became the suspects in the killing and
that he was surprised that after the victim's family had informed
him that there was no evidence as to who killed Pal-loy, the names
of the accused suddenly cropped up. chanroblesvirtualawlibrary chanrobles virtual law library

After the prosecution had filed its comment on the motion, the
lower court denied the same in an Order dated September 8, 1988
explaining that the testimonies of Lablalong and Gayyaman could
not be considered newly-discovered evidence because the defense
had all the opportunity to present them as witnesses at the trial.
The court also turned the claim of the defense regarding the
incompetence of counsel stating that, if upheld, there would be no
end to a suit as long as a new counsel could be employed by the
accused. 20 chanrobles virtual law library

The defense filed a motion for reconsideration of said Order quoting

the "treatise" of then Secretary of Justice Sedfrey A. Ordoñez on
"forgotten evidence" under Rule 37 of the Rules of Court and
ineffective counsel. 21Attached to the motion were the affidavits of:
(1) Rosalina Bookan stating that Carmen Pal-loy, her townmate,
admitted to her that the accused were not the real culprits and that
Carmen was advised against recanting her testimony which might
subject her to persecution, and (2) Carmen Pal-loy swearing that
her husband "did not state categorically and clearly that it was the
accused Julio Lug-aw and Rogelio Bannay who shot him" and that
she did tell Bookan and the spouses Rogelio and Julie Bannay that
her husband did not say that the accused perpetrated the crime.
library
chanroblesvirtualawlibrary chanrobles virtual law

In its Order of October 7, 1988, the lower court denied the motion
and held that it was Sonia Pal-loy and not her mother, Carmen, who
is the principal witness to the killing and that the alleged ineffective
legal assistance is not a ground for new trial. 22Hence, the instant
appeal. chanroblesvirtualawlibrary chanrobles virtual law library

The appellants contend that the lower court erred in finding that
they were positively identified as the culprits and that the victim's
wife and daughter Sonia were present when the crime was
perpetrated. They also assail the lower court's finding that there
was a conspiracy between them in killing Pal-loy. chanroblesvirtualawlibrary chanrobles virtual law library
As in most criminal cases, the linchpin in the resolution of this case
is the credibility of the witnesses. Times without number, this Court
has declared that the findings of the trial court on this matter
should not be disturbed on appeal unless some facts or
circumstances of substance and value have been overlooked which,
if considered, might well affect the result of the case. This doctrine
is premised on the undisputed fact that, since the trial court has the
best opportunity of observing the demeanor of the witnesses while
on the stand, it can discern whether the witnesses are telling the
truth or not. 23We find no cogent reason to depart from this
doctrine. chanroblesvirtualawlibrary chanrobles virtual law library

As expected, the appellants zeroed in on the testimony of Sonia Pal-

loy, the only eyewitness presented by the prosecution. They
contend that Sonia did not actually witness how her father was
shot. In support of this contention, appellants cite discrepancies
between her sworn statement and her testimony in open court.
They assert that her failure to specifically name the two persons
running away from the scene of the crime cast a doubt on her
testimony that she saw Lug-aw shooting her father. 24 chanrobles virtual law library

The Court has always discouraged reliance on affidavits as a basis

for resolving a criminal case. In People v.  Caranzo  25the Court said
that "affidavits being taken ex parte  usually are incomplete and
often inaccurate, caused sometimes from partial suggestions,
sometimes for want of suggestions and inquiries, without the aid of
which the witness may be unable to recall the connected collateral
circumstances necessary for the correction of the first suggestion of
his memory and for his accurate recollection of all that belongs to
the subject." As correctly pointed out by the Solicitor General,
Sonia's failure to name the appellants in her sworn statement could
be attributed to her tender years and the trauma and shock she had
experienced after having witnessed the horrifying killing of her
father.
chanroblesvirtualawlibrary chanrobles virtual law library

The gaps in Sonia's sworn statement were, however more than

offset by her testimony during the preliminary investigation
conducted by the municipal trial judge on November 12, 1986
wherein she testified, thus:
Q Who is your father? chanrobles virtual law library

A Carlos Palloy, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Where is your father now? chanrobles virtual law library

A He was killed, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Who killed him? chanrobles virtual law library

A Julio Lug-aw and Junior Bannay, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Why do you know that your father was killed by Julio Lug-aw and
Junior Bannay? chanrobles virtual law library

A I saw them shoot my father, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Between the two, Julio Lug-aw and Junior Bannay, who shot your
father?chanrobles virtual law library

A Julio Lug-aw, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q What kind of gun did you see they used to shoot your father? chanrobles virtual law library

A Long, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q How far were you when you saw Lug-aw shot your father? chanrobles virtual law library

A About four meters, sir, from my father, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Where were Julio Lug-aw and Junior Bannay at the time when
they shot your father? chanrobles virtual law library

A They were hiding behind a trunk of a tree, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Did you tell your mother that your father was shot? chanrobles virtual law library

A Yes, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q When you heard the gun report and your father was shot what
did you do? chanrobles virtual law library
A I called my mother, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q (Did) you have a companion at the time when you heard a gun
report? chanrobles virtual law library

A Yes, sir my sister Carlina. chanroblesvirtualawlibrary chanrobles virtual law library

Q How many gun report(s) did you hear (from) the direction of your
father?chanrobles virtual law library

A Two, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q And the gun report(s) (were) all in the direction of your father? chanrobles virtual law library

A Yes, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q What was your father doing when he was shot? chanrobles virtual law library

A He was driving a peg on the ground when he was shot and when
he was shot he tried to draw his bolo but he was prevented when
(sic) drawing his bolo because they hit him on his arm, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Before your father died did you talk to him? chanrobles virtual law library

A Yes, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q What did he tell you if any? chanrobles virtual law library

A He said that "IF I DIE MY ASSAILANT(S) WHO KILL (ED) BY

SHOOTING ARE JULIO LUG-AW AND JUNIOR BANNAY." (Emphasis
supplied). 26

During the trial, Sonia clung tenaciously to her story and testified
that it was during the second gun report that he saw Lug-aw shot
her father. Sonia testified as follows:

Q You said while you were at a lower place where your father was
you heard a gun report, what did you do when you heard the gun
report? chanrobles virtual law library

A We went uphill, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q When you were going uphill, what transpired? chanrobles virtual law library

A On the second time that he was shot we saw them, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q And who were those whom you saw? chanrobles virtual law library

A Rogelio and Julio, sir.

xxx xxx xxx

Q You said you saw these persons who shot your father, who
actually shot your father? chanrobles virtual law library

A Julio Lug-aw, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q What was your father doing at the time Julio Lug-aw shot your
father? chanrobles virtual law library

A He was about to draw his bolo but the bolo was thrown away,
sir.
chanroblesvirtualawlibrary chanrobles virtual law library

Q And how far were you at the time when you saw Julio Lug-aw
shot your father? chanrobles virtual law library

A Four (4) meters, sir. (Emphasis supplied.) 27

In their attempt to discredit Sonia, the appellants pointed out that

the normal reaction of a person to such a traumatic happening
would be to flee. However, no hard and fast rule can be laid down
with respect to the reaction of persons to the same situation.
Running to one's father who has been shot to give him succor is
equally a normal reaction of any daughter. chanroblesvirtualawlibrary chanrobles virtual law library

The failure of the defense to attribute any ill motive on the part of
Sonia in order to pin responsibility on the appellant adds more
credence to her testimony. In fact, both appellants admitted before
the court that there was no reason for Sonia to testify against them.
Indeed, it is inconceivable for a
13-year-old who barely finished third grade to impute a very serious
offense on anyone unless it were true. If she were merely
fabricating her testimony, she would have broken down during the
intensive cross-examination at the stand. Al contrario, as observed
by the trial court, Sonia was "natural in her manners" and testified
"straight forwardly." chanrobles virtual law library

Her positive identification of the accused as the perpetrators of the

crime demolished their alibi and denial. Even standing alone, such
positive sole testimony is enough basis for conviction. 28Thus, even
if we lend credence to defense's claim that the victim's widow,
Carmen, prevaricated as shown by the fact that she allegedly tried
to recant after the termination of the trial, Sonia's testimony
suffices as a basis for a finding of guilt. Noteworthy is the fact that,
unlike her daughters Sonia and Carina, Carmen was not an
eyewitness. chanroblesvirtualawlibrary chanrobles virtual law library

Hence, it is principally from Sonia's testimony that we conclude that

the crime committed was not murder but homicide. The qualifying
circumstances of treachery and evident premeditation had not been
proven beyond reasonable doubt. The trial court drew the
conclusion of the presence of treachery because the attack was
sudden as Pal-loy was simply going about his task of fencing
his kaingin. We find however, that no one witnessed the initial
attack. As Sonia herself testified, she heard  the first shot, went up a
hill, climbed a tree and from there, saw Lug-aw shooting her father
with the shot reverberating as the second  gun report. Nowhere do
we find in the records any evidence that she witnessed the first shot
nor how her father reacted to it. What she did see was her father
trying to repel the assault with a bolo but he failed because
a second  shot hit him. As this Court held in People
v.  Castor, 29where the lone eyewitness was not able to observe the
commencement of the assault, he could not, therefore, testify on
how it all began and developed. Citing United States
v.  Perdon  30and United States v.  Pangilion, 31the Court held in
the Castor  case that absent any particulars as to the manner in
which the aggression commenced or how the act resulted in the
death of the victim unfolded, treachery cannot be appreciated to
qualify the killing to murder. chanroblesvirtualawlibrary chanrobles virtual law library

Similarly, the records are bereft of evidence that the crime was
committed with evident premeditation. The three requisites of this
aggravating circumstance, namely, the time when the offender
determined to commit the crime, an act manifestly indicating that
the culprit has clung to his determination and a sufficient lapse of
time between the determination and execution to allow the accused
opportunity to reflect upon the consequences of his act, 32are
wanting in the case at bar. Evident premeditation was, therefore,
incorrectly appreciated by the trial court. 33 chanrobles virtual law library

While the guilt of Lug-aw, the gunwielder, has been established

beyond reasonable doubt, the complicity of his companion, Bannay,
is open to question. As regards his participation in the crime, Sonia
testified as follows:

Q At the time Julio Lug-aw shot your father, what was the other
accused Rogelio Bannay also doing at that time? chanrobles virtual law library

A He was hiding, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Did you notice if he has a firearm? chanrobles virtual law library

ATTY. FLORES -

Objection.

FISCAL FERNANDEZ -  chanrobles virtual law library

Q What did you notice to (sic) Rogelio Bannay when he was hiding?
virtual law library
chanrobles

A None, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q And what was the participation of Rogelio Bannay if any in

connection with the shooting of your father? chanrobles virtual law library

A None, sir. chanroblesvirtualawlibrary chanrobles virtual law library

COURT -  chanrobles virtual law library

Q (To the witness) But he was there near Julio Lug-aw? chanrobles virtual law library

A Yes, Your Honor. 34

Additionally, Sonia stated that after Lug-aw shot her father, Bannay
followed him in running away. 35Bannay's presence at the scene of
the crime was also proven by the victim's declaration that Bannay
and Lug-aw were his assailants. While these circumstances and
utterances may prove Bannay's presence at the scene of the crime,
unless conspiracy is proven, these do not, by themselves, indicate
criminal culpability. The quantum of evidence required for a finding
that Bannay was in conspiracy with Lug-aw has not been met.
Conspiracy, as with any other ingredient of the offense, must be
proved as indubitably as the crime itself through clear and
convincing evidence and not merely by conjecture. As such, proof
beyond reasonable doubt is required. 36chanrobles virtual law library

There is conspiracy when two (2) or more persons come to an

agreement concerning the commission of a felony and decide to
commit it. 37Direct proof, however, is not essential to prove
conspiracy. It may be shown by acts or circumstances from which
maybe logically inferred the existence of a common design among
the accused to commit the offense charged; it may likewise be
deduced from the mode and manner in which the offense was
perpetrated. 38To extricate himself from criminal liability, the
conspirator must have performed an overt act to dissociate or
detach himself from the unlawful plan to commit the felony. 39 chanrobles virtual law library

There is no evidence that Bannay shared Lug-aw's criminal intent.

Thus, although he did not do anything in contravention of the
supposed conspiracy, his mere passive presence at the scene of the
crime did not make him liable therefor. 40Moreover, the prosecution
failed to show other facts and circumstances, aside form Bannay's
presence near Lug-aw as the latter committed the dastardly act and
following Lug-aw as he ran away, from which a community of
interest and design between the two may be construed. The
prosecution's weakness in this respect cannot be taken against
Bannay. We should take into account the doctrine that, in case of
doubt as to the culpability of an accused, it should be resolved in
accordance with the presumption of innocence. chanroblesvirtualawlibrary chanrobles virtual law library

Homicide under Art. 249 of the Revised Penal Code is punishable

by reclusion temporal. In the absence of any aggravating or
mitigating circumstances, the penalty imposable is the medium
degree of reclusion temporal. 41Applying the Indeterminate
Sentence Law, the penalty that should be imposed on Lug-aw is ten
(10) years and one (1) day of prision mayor  maximum as minimum
penalty to seventeen (17) years and four (4) months of reclusion
temporal  medium as maximum penalty. Pursuant to the latest
jurisprudence, Lug-aw shall indemnify the heirs of Carlos Pal-loy in
the amount of fifty thousand pesos (P50,000.00). chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, appellant Julio Lug-aw is hereby found guilty beyond

reasonable doubt of homicide under Art. 249 of the Revised penal
Code for killing Carlos Pal-loy and he shall serve the indeterminate
sentence of ten (10) years and one (1) day of prision
mayor  maximum as minimum penalty to seventeen (17) years and
four (4) months of reclusion temporal  medium as maximum
penalty, and indemnify the heirs of Carlos Pal-loy in the amount of
fifty thousand pesos (P50,000.00). Appellant Rogelio Bannay is
hereby ACQUITTED of the crime charged and he shall be released
from custody immediately. No costs. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.
G.R. No. 94308 June 16, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RUBEN E. ILAOA and ROGELIO E. ILAOA, accused-appellants.

The Solicitor General for plaintiff- appellee.

Buen Zamar for accused- appellants.

BELLOSILLO, J.:

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 identified through
his voter’s identification 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."   The conviction was based on
1

the following circumstantial evidence:

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.   Nestor was then seen being kicked and mauled by Ruben and his brother Rodel, Julius
3

Eliginio and Edwin Tapang.   Nestor was crying all the while, "Pare, aray, aray!" Afterwards, Nestor,
4

who appeared drunk, was seen being "dragged"   into Ruben Ilaoa’s apartment. Nestor was heard
5

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 floor. 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.   Moreover, Ruben’s hair near his right forehead was found partly burned and his shoes were
7

splattered with blood.   Susan Ocampo, Ruben’s live-in partner, was likewise seen in the early
8

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. Specifically, they assail the finding of evident premeditation, abuse of
superior strength and cruelty as totally unwarranted.

We affirm Ruben Ilaoa’s guilt having been satisfactorily established by the evidence on hand, albeit
circumstantial. However, we reverse the conviction of Rogelio as we find 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.   In the case at bench, it does not require much analysis to
10

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 testified that Rogelio Ilaoa helped
his brother drag the deceased to his apartment, Eustancia Bie who claimed to have witnessed the
same incident positively testified that it was Ruben Ilaoa and Julius Eliginio who did so.   Rogelio
11

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 definitely 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 n’yo 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.   Then, an hour later, or at three o’clock in the morning, the tricycle was returned with
12

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.

We find 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,
sufficiently 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
13

a crime.  14

If we are to believe appellant Ruben, we will not be able to account for the blood found on the floor
of the tricycle after it was brought back to the owner. Ruben himself could 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.   In fact he
15

could think of no reason for Alex Villamil to testify falsely against him. 
16

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 sufficiently 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
17

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 sufficient for a finding of cruelty where
18
there is no showing that appellant Ruben Ilaoa, for his pleasure and satisfaction, caused Nestor de
Loyola to suffer slowly and painfully and inflicted on him unnecessary physical and moral
pain.   Number of wounds alone is not the criterion for the appreciation of cruelty as an aggravating
19

circumstance.   Neither can it be inferred from the mere fact that the victim’s dead body was
20

dismembered.   Evident premeditation cannot likewise be considered. There is nothing in the

21

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.

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 fixed 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 finding 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 fixed 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.

G.R. No. 138984             June 4, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
DENNIS TORPIO y ESTRERA, appellant.

DECISION

CALLEJO, SR., J.:

This is an appeal from the Decision1 of the Regional Trial Court of Ormoc City, Branch 35, in
Criminal Case No. 5217-0, finding appellant Dennis Torpio y Estrera guilty beyond reasonable doubt
of murder. The trial court sentenced him to suffer reclusion perpetua and ordered him to pay the
victim’s heirs the total amount of ₱200,000 as civil indemnity, actual damages and attorney’s fees.
The appellant and his father Manuel Torpio were charged with murder for the killing of Anthony
Rapas in an Amended Information that reads:

That on or about the 11th day of October 1997, at around 12:00 o’clock midnight at Zone 3,
Brgy. Camp Downes, Ormoc City, and within the jurisdiction of this Honorable Court, the
above-named accused: DENNIS TORPIO y Estrera and MANUEL TORPIO, conspiring
together, confederating with and mutually helping and aiding one another, with treachery,
evident premeditation and intent to kill, did then and there wilfully, unlawfully and feloniously
stab, hit and wound the victim herein ANTHONY RAPAS, without giving the latter sufficient
time to defend himself, thereby inflicting upon said Anthony Rapas mortal wounds which
caused his instantaneous death. Autopsy report is hereto attached.

In violation of Article 248, RPC, as amended by RA 7659.

Ormoc City, November 4, 1987.2

At their arraignment, the two accused, assisted by counsel, pleaded not guilty to the charge. Trial
ensued.

The Case for the Prosecution

As culled by the trial court from the evidence on record, the case for the prosecution is as follows:

As found by the Court, it was October 11, 1997 in Zone 3, Barangay Camp Downes, Ormoc
City. A family of seven, Manuel Torpio and wife included, together with an old woman visitor
named Fausta Mariaca, were taking their supper. Anthony Rapas knocked and asked for
Dennis Torpio who, after eating, went and left home with Anthony upon the latter’s invitation
for a drinking spree. They have (sic) some round of drinks at a nearby store together with
another companion. Not contented, they left and proceeded to the seashore where in a
cottage there were people also drinking. Joining the group, Anthony and Dennis again drank.
Later, the two and their companion transferred to another cottage and there they again drank
now with gin liquor except Dennis who did not anymore drink. For one reason or another,
because Dennis did not drink, Anthony got angry and he then bathed Dennis with gin, and
boxed or mauled him and tried to stab him with a batangas knife but failed to hit Dennis as
the latter was crawling under the table. He got up and ran towards home. His family was
awaken[ed], his mother shouted as Dennis was taking a knife and appearing (sic) bloodied.
Manuel Torpio woke up and tried to take the knife from Dennis but failed and, in the process,
wounded or cut himself in his left hand. Dennis left with the knife, passed by another route
towards the seashore and upon reaching the cottage where Anthony and their companion
Porboy Perez were, looked for Anthony. Anthony upon seeing Dennis sensed danger and he
fled by taking the seashore. But Dennis, being accustomed to the place and having known
the terrain despite the dark (sic) knew, upon being suggested by somebody whom Dennis
claimed to be Rey Mellang, that there is only one exit Anthony could make and, thus, he
went the other way through the nipa plantation and he was able to meet and block Anthony.
Upon seeing the shining knife of Dennis, Anthony tried to evade by turning to his left and
Dennis thus hit the back portion of Anthony. Anthony ran farther but he was caught in a
fishing net across the small creek and he fell on his back. It is at this juncture (sic) Dennis
mounted on (sic) Anthony and continued stabbing the latter. He left the place but did not
proceed to (sic) home, instead, he went to the grassy meadow near the camp and there
slept until morning. He then went to a certain police officer to whom he voluntarily
surrendered and together they went to the police headquarters. 3
The case for the accused is, likewise, summarized by the trial court in its decision based on the
evidence, as follows:

… [O]n October 11, 1997 at about 7:00 o’clock in the evening, while he and his family,
Manuel, his father and mother and an old woman visitor named Fausta Mariaca included,
were having dinner, Anthony Rapas knocked at their door. Anthony invited Dennis for a
drinking spree. Both left after dinner, went to the store of a certain Codog and there started
drinking. The store was about 70 meters away from Dennis’ house, in Barangay Camp
Downes, Ormoc City. They consumed a half gallon of tuba, drinking with a companion
named Porboy Perez. Two small bottles of Red Horse beer were added, after which the
three proceeded to the seashore, in a cottage of a beach resort there named Shoreline.
Arriving there, there were some people drinking also and they offered them drinks and the
two obliged. Afterwards, they went to a cottage and later Porboy arrived bringing with him a
liquor gin. Dennis did not drink the gin, only Anthony and Porboy did. [T]hen after drinking
the gin, Anthony tried to let Dennis drink the gin and as the latter still refused, Anthony
allegedly bathed Dennis with gin and mauled him several times. Dennis crawled beneath the
table and Anthony tried to stab him with a 22 fan knife but did not hit him. Dennis got up and
ran towards their home. Upon reaching home, he got a knife and as his mother was alarmed
and shouted, a commotion ensued. Manuel, his father, awoke and tried to scold Dennis and
confiscate from him the knife but he failed, resulting to Manuel’s incurring a wound on his
hand (see TSN of October 8, 1998, p. 7 et seq.). He went back to the cottage by another
route and upon arrival Porboy and Anthony were still there. Upon seeing Dennis, Anthony
allegedly avoided Dennis and ran by passing the shore towards the creek. Rey Mellang went
out of his house at this time and said "meet him ‘Den,’" alluding to Anthony and to Dennis,
respectively (TSN of October 8, 1998, p. 31 et seq.). Dennis did meet him, virtually blocked
him and stabbed him. When he was hit, Anthony ran but then he got entangled with a fishing
net beside the creek and Anthony fell on his back, and Dennis mounted on (sic) him and
continued stabbing him. After stabbing (sic), Dennis left and went to the grassy meadow at
Camp Downes and slept there. At about 7:00 in the morning, he went to a known police
officer named Boy Estrera in San Pedro Street, Ormoc City and to whom he voluntarily
surrendered. He was later turned over to the police headquarters (TSN, supra, pp. 31-38). 4

The trial court rendered judgment acquitting accused Manuel Torpio but convicting the appellant of
murder qualified by treachery or evident premeditation and appreciating in his favor the following
mitigating circumstances: (a) sufficient provocation on the part of the offended party (the deceased
Anthony) preceded the act; (b) the accused acted to vindicate immediately a grave offense
committed by the victim; and, (c) voluntary surrender. The decretal portion of the decision reads:

Wherefore, from all of the foregoing, the Court finds the accused Dennis Torpio guilty beyond
reasonable doubt of the crime of murder and hereby sentences him after appreciating the
existence of mitigating circumstances, to the imprisonment of forty (40) years reclusion
perpetua, and to pay the offended party ₱50,000.00 as indemnity, ₱100,000.00 as actual
damages, ₱50,000.00 for and as attorney’s fees. If said accused is detained, [the] period of
imprisonment shall be credited to him in full if he abides in writing by the term for convicted
prisoners, otherwise, for only four-fifths (4/5) thereof.

On the accused Manuel Torpio, the Court finds him not guilty of the crime charged and
hereby acquits him therefrom. If he is detained, he shall be discharged immediately from
prison unless he is held for other lawful cause.

SO ORDERED.5
Dennis Torpio, now the appellant, appealed the judgment of the trial court alleging as sole error that
–

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT TREACHERY AND EVIDENT
PREMEDITATION ATTENDED THE COMMISSION OF THE CRIME, THUS, QUALIFYING
THE SAME TO MURDER.6

According to the appellant, treachery was not attendant when he killed the victim because he did not
consciously adopt a mode of attack to ensure the accomplishment of his criminal purpose without
any risk to himself arising from the defense that the victim might offer. He posits that his act of
stabbing Anthony was preceded by a quarrel between them; hence, the victim had been forewarned
of the danger to his life and limb.

The appellant asserts that evident premeditation was not, likewise, attendant because the
prosecution failed to prove that he had planned and prepared any plot to kill the victim. Further, no
direct and positive evidence had been shown that sufficient time had elapsed between his
determination to commit the crime and its execution to enable him to reflect upon the consequences
of his act. He argues that he is guilty only of homicide as defined in Article 249 of the Revised Penal
Code, as amended.

The appeal is meritorious.

Significantly, apart from its statement that "[f]rom the evidence adduced, the Court is of the
considered opinion that the killing of Anthony by Dennis Torpio was attended with treachery and
evident premeditation as to qualify it to murder," 7 the trial court did not state the factual basis for its
conclusion.

It is axiomatic that qualifying and aggravating circumstances, like treachery and evident
premeditation, must be proven with equal certainty as the commission of the crime charged. 8 Such
circumstances cannot be presumed; nor can they be based on mere surmises or speculations. 9 In
case of doubt, the same should be resolved in favor of the accused. 10

There is treachery when the offender employs means, methods or forms in the execution of the
crime which tends directly and specially to insure its execution without risk to himself arising from the
defense which the offended party might make.11 There must be evidence showing that the mode of
attack was consciously or deliberately adopted by the culprit to make it impossible or difficult for the
person attacked to defend himself or retaliate.12 Further, the essence of treachery is the swift and
unexpected attack without the slightest provocation by the victim. 13

In this case, the record is barren of evidence showing any method or means employed by the
appellant in order to ensure his safety from any retaliation that could be put up by the victim. The
appellant acted to avenge Anthony’s felonious acts of mauling and stabbing him. Although the
appellant bled from his stab wound, he ran home, armed himself with a knife and confronted
Anthony intentionally. When the latter fled, the appellant ran after him and managed to stab and kill
the victim.

To warrant a finding of evident premeditation, the prosecution must establish the confluence of the
following requisites:

... (a) the time when the offender [was] determined to commit the crime; (b) an act manifestly
indicating that the offender clung to his determination; and (c) a sufficient interval of time
 between the determination and the execution of the crime to allow him to reflect upon the
consequences of his act.14

The qualifying circumstance of evident premeditation requires that the execution of the criminal act
by the accused be preceded by cool thought and reflection upon a resolution to carry out the criminal
intent during the space of time sufficient to arrive at a calm judgment. 15 Evident premeditation needs
proof of the time when the intent to commit the crime is engendered in the mind of the accused, the
motive which gives rise to it, and the means which are beforehand selected to carry out that intent.
All such facts and antecedents which make notorious the pre-existing design to accomplish the
criminal purpose must be proven to the satisfaction of the court. 16

Nothing in the records supports the trial court’s conclusion that evident premeditation attended the
commission of the crime in this case. It was not shown by the prosecution that, in killing Anthony, the
appellant had definitely resolved to commit the offense and had reflected on the means to bring
about the execution following an appreciable length of time.

According to Manuel, the father of the appellant, the latter told him, "I have to kill somebody, ’Tay,
because I was boxed." To the Court’s mind, this utterance is not sufficient to show that the crime
was a product of serious and determined reflection. The interval between the time when the
appellant made this statement and when he actually stabbed Anthony was not sufficient or
considerable enough as to allow him to reflect upon the consequences of his act. There was no
sufficient interregnum from the time the appellant was stabbed by the victim, when the appellant fled
to their house and his arming himself with a knife, and when he stabbed the victim. In a case of fairly
recent vintage, we ruled that there is no evident premeditation when the fracas was the result, not of
a deliberate plan but of rising tempers, or when the attack was made in the heat of anger. 17

Without any proof of any circumstance that would qualify it, the killing could not amount to murder.
The appellant should, thus, be held liable only for homicide for the death of Anthony.

The Court agrees with the trial court that mitigating circumstances should be considered in the
appellant’s favor. However, only two out of the three mitigating circumstances 18 considered by the
trial court can be credited to the appellant. The trial court properly appreciated the mitigating
circumstance of voluntary surrender as it had been established that the appellant, after he killed
Anthony, lost no time in submitting himself to the authorities by going to Boy Estrera, a police officer.

The mitigating circumstance of having acted in the immediate vindication of a grave offense was,
likewise, properly appreciated. The appellant was humiliated, mauled and almost stabbed by the
deceased. Although the unlawful aggression had ceased when the appellant stabbed Anthony, it
was nonetheless a grave offense for which the appellant may be given the benefit of a mitigating
circumstance.19 But the mitigating circumstance of sufficient provocation cannot be considered apart
from the circumstance of vindication of a grave offense. These two circumstances arose from one
and the same incident, i.e., the attack on the appellant by Anthony, so that they should be
considered as only one mitigating circumstance.20

Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal.
However, considering that there are two mitigating circumstances and no aggravating circumstance
attendant to the crime, the imposable penalty, following Article 64(5) 21 of the Revised Penal Code, is
prision mayor, the penalty next lower to that prescribed by law, in the period that the court may deem
applicable. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed shall be
taken from the medium period of prision mayor, while the minimum shall be taken from within the
range of the penalty next lower in degree, which is prision correccional. Hence, the imposable
penalty on the appellant is imprisonment from six (6) years of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor, as maximum.

It is, likewise, necessary to modify the damages awarded by the trial court. The award of ₱100,000
as actual damages representing funeral and wake expenses should be deleted as there were no
receipts or any other tangible documents presented to support the said award. 22 However, the award
of attorney’s fees in the amount of ₱50,000 is proper considering that the records showed that the
heirs of the victim engaged the services of a private prosecutor. The recovery of attorney’s fees in
the concept of actual or compensatory damages is allowed under the circumstances provided in
Article 2208 of the Civil Code, one of which is when the court deems it just and equitable that
attorney’s fees and expenses of litigation should be recovered. 23 The award of ₱50,000 as civil
indemnity24 to the heirs of Anthony, as well as ₱25,000 as temperate damages, 25 is, likewise,
warranted pursuant to prevailing jurisprudence.

WHEREFORE, the Decision dated March 18, 1999 of the Regional Trial Court of Ormoc City,
Branch 35, in Criminal Case No. 5217-0 is AFFIRMED WITH MODIFICATIONS. The appellant
Dennis Torpio y Estrera is found guilty beyond reasonable doubt of Homicide under Article 249 of
the Revised Penal Code and is sentenced to suffer an indeterminate penalty from six (6) years of
prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor in its medium
period, as maximum. He is further ordered to pay the heirs of the said victim, the amounts of Fifty
Thousand Pesos (₱50,000) as civil indemnity, Twenty-Five Thousand Pesos (₱25,000) as
temperate damages and Fifty Thousand Pesos (₱50,000) as attorney’s fees.

SO ORDERED.

G. R. Nos. 111098-99 - April 3, 2003

PEOPLE OF THE PHILIPPINES, Appellee, vs. PIO BISO alias BISOY, EDUARDO YALONG alias
BULOY, appellants.

CALLEJO, SR., J.:

Before us, on appeal, is the decision,1 dated June 9, 1987, of the Regional Trial Court of Manila,
Branch 31, in Criminal Cases Nos. 84-24430 and 84-25774, finding Pio Biso and Eduardo Yalong guilty
beyond reasonable doubt of murder and sentencing them to suffer the penalty of reclusion
perpetua and ordering them to pay in solidum the heirs of the victim Dario Pacaldo the amount of
P50,000 as civil indemnity.

The Antecedents

At a little past 12:00 midnight on February 16, 1984, Dario Pacaldo, a black belt in karate, entered an
eatery located in Masinop, Tondo, Manila, owned by Augustina Yalong. He seated himself beside
Teresita Yalong, the 14-year-old daughter of Augustina Yalong. He made sexual advances on Teresita
in the presence of her brother, Eduardo (Buloy). Dario embraced and touched Teresitas private parts.
As Dario was older, bigger, taller and huskier than Eduardo, the latter and Teresita could do nothing
but to shout for help from their mother Augustina. However, before Augustina could do anything,
Dario left the eatery and proceeded to the nearby Gereli Pub House and Disco. 2

Augustina and Teresita rushed to the house of Barangay Captain Lachica for assistance. Although he
was out of the house, his wife Dolores Lachica accompanied Augustina and Teresita to the police
station where Teresita and Augustina lodged a complaint against Dario. Policemen and the three
women proceeded to the nearby Gereli Pub House and Disco where Dario was apprehended by the
police officers. They brought him to the Tondo Police Station where he tried to settle the matter with
Augustina and Teresita by offering to pay them P200. However, the two rejected his offer. An
investigation ensued but Dario was released. Augustina and Teresita were told to return to the station
in the morning for them to file the appropriate criminal complaint against Dario.

At about 1:00 a.m., Eduardo contacted his cousin, Pio G. Biso (Bisoy), an ex-convict and a known
toughie in the area, and related to him what Dario had done to Teresita. Eduardo and Pio, Boy Madang
and Butso decided to confront Dario. They waited in an alley near the well-lighted Masinop Street for
his arrival.

At or about 1:20 a.m., Eduardo became impatient when Dario had not yet arrived. Eduardo went to
the house of Dario and knocked on the door. When Carmen Augusto, the house helper of the
Pacaldos, opened the door, she was surprised to see Eduardo at the door. The latter inquired if Dario
was at home already. When told that Dario had not yet arrived, Eduardo and Pio, Boy Madang and
Butso positioned themselves in the alley near the house of Dario. Carmen noticed that Eduardo and
his companions were conversing. Momentarily, Dario arrived on board a taxicab. Eduardo and Pio, Boy
Madang and Butso assaulted Dario. Porfirio Perdigones who was on his way home from work was
startled when he saw the assault. He saw Eduardo hold, with his right hand, the wrist of Dario and
cover with his left hand the mouth of Dario. He also saw Boy Madang and Butso hold Darios right hand
and hair. Pio then stabbed Dario near the breast with a fan knife. Petrified, Porfirio fled to his house.
Eduardo stabbed Dario and fled with his three companions from the scene.

Dario was able to crawl to their house and knocked at the door. His younger brother Felixberto was
shocked when he opened the door and saw Dario bloodied all over. Their father Roberto was so
incensed when he saw Dario mortally wounded. When Roberto asked Dario who assaulted him, Dario
identified Eduardo with the help of three others. Roberto and Felixberto then called for help to bring
Dario to the hospital. Dario motioned that it was pointless for him to be brought to the hospital.
However, Roberto and Felixberto insisted, and brought Dario to the nearby Mary Johnston Hospital. On
the way, Dario told his father that he was stabbed by Eduardo, at the same time flashing three
fingers. Dario likewise told his brother Felixberto that his assailants were Eduardo, Pio, Boy Madang
and Butso. Dario died upon arrival in the hospital.

At about 5:30 a.m., Porfirio went to the house of Roberto and told the latter that earlier at about 1:00
a.m., he saw Pio and three others assaulting Dario. He also told Roberto that he cannot recall their
names but can recall their faces. He likewise told Roberto that Pio used a fan knife (balisong) in
stabbing Dario.

Roberto reported the incident to the homicide section of the Tondo Police Station. Police officers
arrested Pio. However, Eduardo managed to elude the police officers and went into hiding. After a
month, Eduardo was arrested in Pampanga.

In the meantime, Darios cadaver was autopsied by Dr. Marcial G. Cenido. The doctor prepared a
report on his autopsy which reads:

POSTMORTEM FINDINGS

EXTERNAL INJURIES AND EXTENSIONS INTERNALLY:

1. Penetrating stab wound, left upper anterior thorax, 122 cm, from the heel, 6.5 cm. left of anterior
midline, measuring 1.5 cm. x 0.8 cm. in depth, thru 2nd left inter-costal space, cutting upper border
of the 3rd costal cartilage, directed obliquely backwards, slightly upwards and towards the midline
perforating the pericardium, incising the upper lobe of the left lung about the hilus;

2. Penetratinf (sic) stab wound, left posterior lumbar, 98 cm. from the heel, 12 cm. left of posterior
midline, measuring 2 cm. x 0.9 cm. x 10.5 cm. in depth, directed obliquely forwards, slightly upwards
and towards the midline and piercing the descending colon of the large intestine; and

3. Deep abrasion, right chin and which measures 1 cm. x 0.2 cm.
INTERNAL FINDINGS:

1. Stab wounds of the internal organs and tissue indicated under the internal extensions of the
external wounds items 1 & 2, with generalized pallor;

2. Massive left hemothorax with a very small amount of blood recovered from the abdominal cavity;
and

3. Recovered from the stomach a small amount of viscid/without alcoholic odor.

CAUSE OF DEATH

Penetrating stab wounds, left anterior thorax and posterior lumbar. 3

Pio Biso was charged with murder in an Information docketed as Criminal Case No. 84-24430 which
reads:

That on or about February 16, 1984, in the City of Manila, Philippines, the said accused, conspiring
and confederating with three others whose true names, identities and present whereabouts are
unknown and helping one another did then and there wilfully, unlawfully and feloniously with intent to
kill, and with treachery and evident premeditation, attack, assault and use personal violence upon one
Dario Pacaldo y Luega by then and there stabbing the latter with the use of a bladed weapon thereby
inflicting upon him mortal stab wounds which were the direct and immediate cause of his death
thereafter.

Contrary to law.4

A separate Information for murder was filed against Eduardo with the said court docketed as Criminal
Case No. 84-25774 which reads:

That on or about February 16, 1984, in the city of Manila, Philippines, the said accused conspiring and
confederating with Pio G. Biso who was also charged with the Regional Trial Court of Manila docketed
under Criminal Case No. 24430, and two others whose true names, real identities and present
whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and
feloniously, with premeditation, attack, assault and use personal violence upon one, Dario Pacaldo y
Luega, by there and then stabbing him with a "balisong" on the left chest and on the left portion of the
back, thereby inflicting upon the said Danilo Pacaldo y Luega mortal wounds which were the direct and
immediate cause of his death.

Contrary to law.5

When arraigned on May 13, 1984 and January 3, 1985, respectively, Pio Biso and Edruardo Yalong,
assisted by their counsel, pleaded not guilty. 6 The proceedings in the two cases were consolidated.

The Case for the Accused

Pio denied any participation in the stabbing and the consequent death of Dario, the victim. He averred
that he was in his house, sleeping with his common-law wife Myrna when Dario was stabbed to death.

Eduardo, on the other hand, admitted stabbing Dario. However, he stressed that it was he alone who
stabbed the victim. He furthered that he had no intention of killing the victim. On March 20, 1984,
Eduardo gave the same statement to the police officers admitting having stabbed the victim. 7 He
related that after having coffee at a nearby store, he saw the victim who was seemingly drunk
alighting from a taxicab. Upon seeing Eduardo, Dario shouted "Nagreklamo pa kayo ay halagang
dalawang daang piso lang kayo." To which Eduardo replied "Kami na nga ang naagrabyado ay kayo pa
ang matapang." Dario slapped Eduardo so hard that he was pushed to the wall. Eduardo asked Dario
"Ano ba ang kasalanan ko?" Dario replied "Matapang ka ha." Simultaneously, he took out his
"balisong" and lunged at Eduardo. However, Eduardo was able to parry the thrust and wrest the knife
from Dario. Eduardo then swung the knife to Dario, hitting the latter on the chest. Eduardo fled from
the scene of crime and went into hiding.

On June 9, 1987, the court a quo rendered a decision, finding Pio and Eduardo guilty beyond
reasonable doubt of the crime of murder and sentencing them to suffer the penalty of reclusion
perpetua:

WHEREFORE, the Court finds both accused GUILTY beyond reasonable doubt for the crime of Murder
qualified by treachery and evident premeditation not offset by any mitigating circumstances and the
Court hereby sentences each of them to suffer imprisonment of reclusion perpetua or life
imprisonment.

Ordering both accused to indemnify the heirs of Dario Pacaldo y Luega the sum of P50,000.00.

Ordering both accused to pay litigation expenses and the costs of this proceedings. 8

The accused appealed from the decision of the court. 9

After filing his brief with this Court on June 12, 1999, Pio filed a motion dated January 20, 2000
praying for the withdrawal of his appeal. After verifying the veracity and the voluntariness of the
motion, the Court, in a Resolution dated October 16, 2000, granted the said motion and declared the
case closed and terminated as to Pio Biso.10

Appellant Eduardo filed his brief contending that:

THE COURT A QUO GRAVELY ERRED IN FINDING THAT TREACHERY AND EVIDENT PREMEDITATION
ATTENDED THE COMMISSION OF THE CRIME.

II

THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF

MURDER.11

The appellant posits that the prosecution failed to prove beyond cavil of doubt that he killed the victim
with treachery and evident premeditation. Hence, he is guilty only of homicide and not of murder. He
avers that the prosecution failed to prove the essential requisites for evident premeditation. The trial
court, on the other hand, stated in its decision that evident premeditation attended the commission of
the crime:

There was evident premeditation as shown by the burning hatred of accused Eduardo Yalong to
avenge the dishonor of his sister Teresita Yalong who was earlier mashed and sexually molested by
the deceased in the presence of said accused Yalong. Accused Yalong had a score to settle with the
deceased Pacaldo, so he sought out the help of his ex-convict first cousin Pio Biso, who, together with
two (2) others waited at the scene of the crime for more than one (1) hour near the house of the
deceased until his arrival, thereafter they were able to carry out their plan when deceased arrived
after midnight.12

We agree with the appellant.

Case law has it that qualifying circumstances must be proved with the same quantum of evidence as
the crime itself.13 For evident premeditation to be appreciated, the prosecution is required to prove the
following:

(a) the time when the offender determined to commit the crime; (b) an act manifestly indicating that
the offender clung to his determination; and (c) a sufficient interval of time between the determination
and the execution of the crime to allow him to reflect upon the consequences of his act. 14

Evident premeditation is not presumed from mere lapse of time. The prosecution is burdened to prove
that the malefactors had decided to commit a crime and performed an "act manifestly indicating that
the offender had clung" to a previous determination to kill. 15 It must be shown that there was a period
sufficient to afford full opportunity for meditation and reflection, a time adequate to allow the
conscience to overcome the resolution of the will, as well as outward acts showing the intent to
kill.16 The premeditation to kill should be plain and notorious. In the absence of clear and positive
evidence proving this aggravating circumstance, mere presumptions and inferences thereon, no
matter how logical and probable, would not be enough. 17

Evident premeditation must be established by clear and convincing evidence that the accused
persistently and continuously clung to this resolution despite the lapse of sufficient time for them to
clear their minds and overcome their determination to commit the same. 18

In this case, the prosecution established that the appellant, incensed at seeing the victim molesting
his younger sister Teresita, went to Pio, a notorious toughie in the area, and with two cohorts,
proceeded to the house of the victim to confront him but failed to see the victim. However, the
prosecution failed to prove that the four intended to kill Dario and if they did intend to kill him, the
prosecution failed to prove how the malefactors intended to consummate the crime. Except for the
fact that the appellant and his three companions waited in an alley for Dario to return to his house,
the prosecution failed to prove any overt acts on the part of the appellant and his cohorts showing
that that they had clung to any plan to kill the victim.

We do not agree with the appellants contention that treachery was not attendant in the commission of
the crime.

For treachery to be appreciated as a qualifying circumstance, the prosecution must establish that (a)
the employment of means of execution which gives the person attacked no opportunity to defend
himself or retaliate; (b) the means of execution is deliberately or consciously adopted. 19

The prosecution discharged its burden. Porfirio Perdigones testified how appellant Pio, and their
cohorts killed Dario with treachery:

Q:         When did you see that Dario Pakaldo (sic) was killed by Pio Biso and his companions?

A:         February 16, 1984 about 1:00 in the morning at Masinop St., Tondo, Manila.

Q:         How did Pio Biso and his companions killed (sic) Dario Pakaldo?

A:         I saw how Dario was killed by Pio Biso, sir. One was holding his right hand, one was holding
his left hand, one was holding his head this way, sir. (witness demonstrating that the fellow hold (sic)
Dario on his head, holding his hand at the mouth and other hand at the head and he was stabbed by
Pio Biso).20

Dario was powerless to defend himself or retaliate against the appellant and his cohorts. 21 By their
collective and simultaneous acts, the appellant and his cohorts deliberately and consciously insured
the consummation of the crime. In sum, the appellant is guilty of murder as defined and penalized
under Article 248 of the Revised Penal Code.
 Proper Penalty for the Crime

When the crime was committed in 1984, the penalty for murder was reclusion temporal in its
maximum period to death. The appellant testified that he was 17 years old at the time of the
commission of the crime. In his sworn statement to the police authorities, he also claimed that he was
17 years old.22 The prosecution did not adduce any evidence to disprove the evidence of the appellant.
Hence, the appellant is entitled to the privileged mitigating circumstance of minority under Article 63
of the Revised Penal Code.23 Considering that the appellant was 17 years old at the time of the
commission of the felony, the imposable penalty should be reduced by one degree. Hence, the
imposable penalty for the crime is prision mayor in its maximum period to reclusion temporal in its
medium period with a range of from ten years and one day to seventeen years and four months.
Although the crime was committed at nighttime, there is no evidence that the appellant and his
companions took advantage of nighttime or that nighttime facilitated the commission of the crime.
Hence, nighttime is not aggravating in the commission of the crime. 24 The crime was committed by a
band. However, band was not alleged in the Information as mandated by Section 8, Rule 110 of the
Revised Rules of Criminal Procedure.25 Although the new rule took effect on December 1, 2000 long
after the crime was committed, the same shall be applied retroactively being favorable to the
appellant.26 Taking into account the indeterminate sentence law, the appellant should be meted an
indeterminate penalty of seven years and one day of prision mayor in its medium period as minimum,
to twelve years, five months and eleven days of prision mayor in its medium period as maximum.

Civil Liabilities of the Appellant

The trial court correctly ordered the appellant to pay to the heirs of the victim Dario Pacaldo, P50,000
by way of civil indemnity.27 The heirs of the victim are not entitled to moral damages as none of the
heirs testified for the prosecution on the factual basis for said award. The heirs are also entitled to
exemplary damages in the amount of P25,000 conformably with the ruling of the Court in People v.
Catubig.28

The Verdict of the Court

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 31, is
hereby AFFIRMED WITH MODIFICATION. The appellant is found guilty beyond reasonable doubt of
murder under Article 248 of the Revised Penal Code and is sentenced to an indeterminate penalty of
from seven years and one day of prision mayor as minimum to twelve years, five months and eleven
days of prision mayor as maximum. He is ordered to pay to the heirs of the victim Dario Pacaldo, the
amount of P50,000 as civil indemnity and P25,000 as exemplary damages.

With costs de oficio.

SO ORDERED.

January 18, 2016

G.R. No. 206291

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
ZALDY SALAHUDDIN and Three (3) other UNIDENTIFIED COMPANIONS, Appellants.

DECISION

PERALTA, J.:
This is an appeal from the Decision  dated October 25, 20 l1 of the Court of Appeals in CA-G.R. CR-
1

J-IC No. 00638-MIN, which affirmed the Clecision  of the Regional Trial Court (RTC) of Zamboanga
2

City, Branch 16, finding Zaldy Salahuddin guilty beyond reasonable doubt of the crime of murder in
Criminal Case No. 20664.

Appellant Zaldy Salahuddin was charged with the crime of murder in the Information elated June 9,
2004, the accusatory portion of which reads:

That on or about February 10, 2004, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being then armed with a .45 caliber
pistol and other handguns, conspiring and confederating (sic) together, mutually aiding and assisting
one another, by means or treachery, evident premeditation and abuse of superior strength, and with
intent to kill, did then and there, wilfully, unlawfully and feloniously, assault, attack and shoot with the
use of said weapons ATTY. SEGUNDO SOTTO, JR. y GONZALO, employing means, manner and
form which tended directly and specially to insure its execution without any danger to the persons of
the herein accused, as a result of which attack, said Atty. Segundo Sotto, Jr. y Gonzalo sustained
mortal gunshot wounds on the fatal parts of his body which directly caused his death, to the damage
and prejudice of the heirs of said victim;

That the commission of the above-stated offense has been attended by the following aggravating
circumstances, to wit:

1. Use of unlicensed firearm; and

2. Use of motorcycle to facilitate not only the commission of the crime but also the escape of
the accused from the scene of the crime.

3. That the crime be committed at night time.

CONTRARY TO LAW. 3

Upon arraignment, appellant pleaded not guilty to the murder charge. Trial ensued afterwards.

Appellant was also charged with frustrated murder in Criminal Case No. 20665 for having fatally
wounded Liezel Mae Java, the niece of the victim, during the same shooting incident. Since Java
was alleged in the Information to be a minor, the said case was transferred to Branch 15 of the RTC
of Zamboanga City, which is the only designated family court in the city.

To establish its murder case against appellant, the prosecution presented the testimonies of nine (9)
witnesses, namely: (1) Juanchito Vicente Delos Reyes, the security guard who witnessed the
shooting incident; (2) Dr. Melvin Sotto Talaver, the one who assisted the doctor who examined the
victim’s cadaver; (3) Java, the niece and companion of the victim at the time of the incident; (4)
Michal Maya, the secretary of the victim in his law office; (5) Vicente Essex Minguez, the National
Bureau of Investigation Agent who investigated the incident; (6) SPO3 Ronnie Eleuterio, a police
officer attending to records of firearms and licenses; (7) Police Chief Inspector Constante Sonido,
the one who conducted ballistic examination over the 2 empty shells; (8) Atty. Wendell Sotto, the son
of the victim; and (9) Gloria Sotto, the victim’s wife.

As summarized by the Court of Appeals (CA), the facts established by the evidence for the
prosecution are as follows:
On February 10, 2004, at around 5:30 in the afternoon, Atty. Segundo Sotto Jr., a prominent law
practitioner in Zamboanga City, together with his niece, Liezel Mae Java[,] left the former’s law office
and went home driving an owner[-]type jeep. On the way towards their house at Farmer’s Drive, Sta.
Maria, Zamboanga City, they passed by Nunez Street, then turned left going to Governor Camins
Street and through Barangay Sta. Maria. When the jeep was nearing Farmer’s Drive, the jeep
slowed down, then, there were two gun shots. Liezel Mae, the one sitting at the right side of the jeep
felt her shoulder get numb. Thinking that they were the ones being fired at, she bent forward and
turned left towards her uncle. While bending downwards, she heard a sound of a motorcycle at her
right side. Then, she heard another three (3) [gunshots] from the person in the motorcycle. After that,
the motorcycle left.

While Liezel’s head was touching the abdomen of her uncle, she was crying and calling out his
name. A few minutes later, rescuers arrived. Liezel and Atty. Segundo, with the use of tricycles,
were brought to Western Mindanao Medical Center (WMMC).

Juanchito Vicente Delos Reyes, a Security Guard at the house of George Camins, located in Brgy.
Sta. Maria, while seated on a stool at the inner side of the gate, facing the road, noticed that in the
early evening of February 10, 2004, he saw a man driving a jeep, with a woman inside. He then
heard two [gunshots]. Immediately after that, the jeep bumped at an interlink wire at the left side of
the road, going to the entrance of Farmer’s Drive. He peeped through the jeep and saw the face of
the person in the driver’s seat slammed on the steering wheel. He thereafter saw the motorcycle in
front of the victim and the latter was shot again. The motorcycle went to the right side of the jeep and
the backrider again shot the victim. Seeing the shooting incident, Delos Reyes aimed his gun at the
person shooting. When the latter saw this, he made a sign – with his extended left hand, moving his
left with open palms sidewards. To Delos Reyes’ mind, the sign means that the assailant does not
want to be interfered [with]. When the motorcycle was about to leave, the assailant fired again.

After the motorcycle left, Delos Reyes called two tricycles in the highway to bring the wounded
victims to the hospital. After the tricycles left, three (3) policemen from Sta. Maria Police Station
arrived. Delos Reyes right away contacted the manager of WW Security Agency, Mr. Wilfredo
Manlangit and told him about the incident. When the police officers were already in the crime scene,
Delos Reyes told them that he still cannot relay everything that happened for he was still in a state of
shock. It was his first time to see such an incident.

Atty. Wendell Sotto, the son of the victim, on the date of the incident, came from the law office and
went home to their house at Farmer’s Drive ten (10) minutes after the victim and his niece left the
office. When Atty. Wendell was about to turn right to Farmer’s Drive, he saw his father’s jeep stalled
at the left side of the said street. Upon seeing his father’s jeep, he stopped his car and saw his father
already slouching on the steering wheel of the jeep and his cousin slouching on his father’s side. He
noticed that his father was already full of blood. He went to the left side of the jeep, tried to pull his
father out and shouted for help. Atty. Wendell brought his father to the Operating Room of WMMC.
Dr. Lim and Dr. Melvin Talaver attended to the victim, but they pronounced the victim to be dead on
arrival.

Dr. Melvin Sotto Talaver, the one who assisted Dr. Lim in the examination of the cadaver testified
that on February 10, 2004, at around 5:30 in the afternoon, he was at home, taking a rest from his
duty. At around 6 o’clock, he was called by a staff of the Emergency Room of WMMC informing him
about what happened to his relative, Atty. Segundo. Immediately thereafter, he went to the hospital.
When he arrived there, Dr. Lim already declared the patient to be dead. After that announcement,
the deceased was transferred to a smaller room. Dr. Talaver and Dr. Lim examined the body and
made the recording of the entry and exit wounds. Dr. Talaver witnessed how Dr. Lim used a sketch
of the human body, front and back, to document her findings.
As seen in the Physical Examination Form, there were four wounds in the front anatomy – one in the
neck area, another on the chest above the left nipple, the third one was in the solarplexus – between
the two breasts, and the last is somewhere in the abdominal area. For the back anatomy, they
discovered exit wounds, from where they recovered the two (2) slugs, which they gave to Atty.
Wendell, the son of the victim. Based on the Medical Certificate issued by Dr. Lim, the diagnosis
stated Dead on Arrival – Cardiorespiratory arrest, secondary to hypovolemia, secondary to multiple
gunshot wounds.

Vicente Essex Minguez, an NBI agent assigned at Western Mindanao Regional Office, Zamboanga
City stated under oath that on February 13, 2004, Mayor Sotto of the Municipality of Siay,
Zamboanga Sibugay, the brother of the deceased, filed a complaint before the NBI Office. On March
17, 2004, the NBI Office also received a Resolution from the City Government of Zamboanga City
requesting the said agency to conduct an investigation regarding the killer of Atty. Segundo Sotto.
Upon receipt of the resolution, NBI Agent Minguez then coordinated with his civilian agents to gather
information about the death of Atty. Segundo. He also went to Sta. Maria Police Station and asked
the police officers the progress of the investigation that they conducted. Sta. Maria Police then gave
him a copy of the Report and told him that the empty shells were turned over to the crime laboratory.
Subsequently, he tacked (sic) some investigation agents to look for witnesses of the said crime.
When they came to know the name of the Security Guard Delos Reyes, they asked him to be a
witness.

On March 3, 2004, Delos Reyes was brought by his manager Manlangit at the NBI Office, and there
he gave a statement as to what happened during the incident on February 10, 2004. Delos Reyes
also mentioned in his testimony that on February 17, 2004, at around 10 o’clock in the evening,
while he was at the side of the gate inside the fence of the residence of George Camins, a
motorcycle with two (2) males riding on it stopped. Delos Reyes called on the two (2) maids of
George Camins to peep through the persons outside. After that, the maids returned and told him that
they saw the backrider holding something and demonstrated the left or right hand pulling something
backward and pulled it again forward, as if making a cocking action. The next day after the said
incident, Delos Reyes stopped reporting for work, with the permission of his manager, because it
came to his mind that those were the people who killed Atty. Segundo.

On March 16, 2004, Delos Reyes was again at the NBI Office, and was asked to piece together the
eyes, ears, mouth and nose of the accused. After having the sketch of the assailant, NBI Agent
Minguez designated it to his informants to gather more information. During the later part of March
2004, an informant told Agent Minguez that he can identify the gunman. On March 28, 2004, the NBI
then conducted a surveillance in Barangay Dita where the assailant was residing, as informed by the
informant. In the said area, the NBI spotted the gunman riding a motorcycle.

On April 1, 2004, NBI agents, about ten (10) of them, together with Delos Reyes, disguised
themselves as campaigners of the late Fernando Poe Jr. During that time, accused was spotted in a
shop talking to two (2) women agents. Agent Minguez asked confirmation from Delos Reyes if the
person in the sketch was the same person that they saw in the shop. Thereafter, the agents backed
out, Minguez went to the NBI Office and prepared into writing the surveillance that was conducted.

On April 22, 2004, NBI filed the case with the Office of the City Prosecutor. Thereafter, a warrant of
arrest was issued. On July 22, 2004, Minguez and some of the NBI agents served the warrant at
Barangay Vitali and arrested the accused. Upon his arrest, the agents recovered a .45 caliber
firearm from the accused.
On the next day, Agent Minguez invited Delos Reyes and Liezel Mae to identify if the person that
they arrested was the same person whom they saw kill the victim. Both [eyewitnesses] positively
identified the person to be the gunman.

Michal Macaya, the secretary of the law office of deceased Atty. Segundo, testified that on February
10, 2004, at about 10:30 in the morning, while Atty. Segundo was having a hearing at Branch 13,
two men arrived at the office, looked for Atty. Segundo and asked where he was having a hearing.
They left but returned thirty (30) minutes later. Macaya told them to come inside the office, but they
refused to do so. They left again, and when they came back at past eleven, there were already four
(4) of them, looking for Atty. Segundo. The four (4) men left and came back at about 12 o’clock in
the morning. After the accused was arrested, Macaya was asked to come to the NBI Office to
identify the accused. She stated that the accused and the person who went to the law office four (4)
times have the same shape of the face.

Mrs. Gloria Sotto, the wife of the deceased, testified that at the time of the incident, she was at
home. She came to know about what happened to her husband when her neighbors came shouting
that Atty. Segundo was shot outside. She trembled and her children cried, but still she managed to
go to the crime scene, and found that her husband was no longer there. She immediately went to the
hospital and saw her husband already dead. The body of the victim was released at around 7:30 to 8
o’clock on that same night. The body of her husband was made to lie at La Merced Memorial Homes
for nine (9) days and was buried at Forest Lake.

SPO3 Ronnie Eleuterio, a Police Office[r] attending records pertaining to firearms and licenses,
testified that on August 5, 2004, he received a request for verification from the Fiscal Office to issue
a Certification whether accused Zaldy Salahuddin has a licensed firearm. He checked the records
and found that accused has no existing record of any firearms license, permit to transport or permit
to carry firearms outside of his residence.

Police Chief Inspector Constante Sonido, Regional Chief and Firearm Examiner of the Regional
Crime Laboratory, Region IX, testified that on February 11, 2004, he received a request from Sta.
Maria Police Station for the conduct of a ballistic examination on the 2 empty shells. Based on his
examination and as seen in the Firearms Identification Section Report No. FAIS-003-04, the two (2)
cartridge cases were part from the same .45 caliber firearm. 4

To substantiate appellant’s defenses of denial and alibi, on the other hand, the defense presented
the testimonies of 9 witnesses, namely: (1) appellant; (2) Sarabi Hussin; (3) Jauhari Hussin; (4)
Sairaya Temong; (5) SPO1 Vicente Alama y Tanuan; (6) PO2 Donato Acosta y Mendoza; (7)
Wilfredo Manlangit; (8) P/Sr. Ins. Hado Edding; and (9) P/Chief Insp. Roman Cornel Arugay.

As summarized by the CA, the facts established by the evidence for the defense are as follows:

The accused, on the other hand, interposed the defense of denial. He averred that on February 10,
2004, he was on duty as a Barangay Tanod, together with Jauhari Hussin, a Barangay Kagawad. On
that day, he reported for duty at 7 o’clock in the morning until 5 o’clock in the afternoon, and stayed,
during the whole day, in the barangay hall, and in some instances at the nearby elementary school.
After 5 o’clock P.M. of that day, he passed by the house of Barangay Chairman, Sarabi Hussin, the
brother of the above-named Kagawad. He stayed there and had a long conversation with the
Barangay Chief and went home at around 9 o’clock in the evening. He claimed that he does not
know about any participation in the killing of Atty. Segundo. During the time of the incident, accused
insisted that he was at the house of the Barangay Captain for the latter did not go to the Barangay
Hall.
Major Wilfredo Manlangit, a Major of the Philippine Army and Operator of WW Security Agency
testified that based on the Monthly Disposition Report of WW Security Agency for the month of
February 2004, no name of Juanchito Delos Reyes appears as one of the security guards for the
month of February. A Certification dated September 30, 2004 stated that Juanchito Delos Reyes
was on active duty at "Tu Casa" residence under the residence of Mrs. Corazon Camins as of March
3, 2004 only. However, on cross-examination, Major Manlangit affirmed that Delos Reyes was
already one of the Security Guards of the agency. He remembered that Delos Reyes had already
started working as one of its security guards in February 2004. He explained that Delos Reyes’
name did not appear in the report because he did not complete the 30[-]day period in one month. It
was required that he completes the 30-day period because the names in the report reflected only the
names of the guards who completed the whole month.

Another defense witness Police Officer Donato Acosta, the assigned duty investigator for the killing
of Atty. Segundo testified that he, together with his assistant PO1 Alama, under the supervision of
Police Chief Edding, tried to find witnesses on the incident. He spoke with a certain Bayot, the seller
of the store, near the place of the incident. The seller told the investigator that she saw the driver
wearing a closed helmet, and the one riding at the back wore a shade. The result of their
investigation was that a certain Toto Amping is the alleged assailant. These findings were written
down by another defense witness PO1 Vicente Alama, who prepared a Special Investigation Report
dated February 25, 2004, which was submitted to NBI Agent Minguez, but was unsigned by Chief of
Police Edding.

Chief of Police Hado Edding testified that he did not sign the Special Investigation Report because
the name mentioned in the report, purporting to be the assailant, was not supported by witnesses.
He stated that the Special Investigation Report could not be taken as an official report of the Sta.
Maria Police Station because as a matter of procedure, a report is considered official when the Chief
of Police approves it. x x x.

Sarabi Hussin, the Barangay Chairman of Barangay Dita, testified that on February 10, 2004, he
was at the Barangay Hall of Barangay Dita from 7 o’clock in the morning until 5 o’clock in the
afternoon. He affirmed that he and accused Zaldy just stayed at the Barangay hall the whole day. He
left the barangay hall at around 5 o’clock in the afternoon with the accused Salahuddin, through a
motorcycle. Accused Zaldy, and Kagawad Jauhari Hussi[n] stayed at the house of the barangay
chairman, ate there and left at around 8 o’clock in the evening.

Jauhari Hussin, a Barangay Kagawad of Barangay Dita corroborated the testimony of the barangay
chairman. He declared that on February 10, 2004, he reported for duty with accused Salahuddin.
Accused and the barangay chairman went home together, with the use of a motorcycle. He just
walked home a little later.

Another defense witness, Saiyara Temong, the barangay secretary of Dita supported the testimony
of the barangay chairman, kagawad and accused. She declared that the persons present on
February 10, 2004 were Brgy. Kagawad, Jauhari Hussin, Brgy. Chairman Sarabi Hussin and
accused Barangay Tanod Salahuddin.

Chief of Firearm Explosive Security Agencies and Guard Section (FESAGS) Roman Arungay,
testified that he received a request from Atty. Mendoza of the Public Attorney’s Office to submit
some data regarding a Security Guard named Juanchito Delos Reyes. He issued a Certification
stating that Delos Reyes was not included in the monthly disposition of the guards of WW Security
Agency Specialist Services covering the period from 01 to 29 February 2004. Delos Reyes was,
however, included in the list of security guards employed under the said agency. 5
After trial, the RTC convicted appellant of the crime of murder. The dispositive portion of its Decision
dated March 28, 2008 states:

WHEREFORE, the Court finds accused ZALDY SALAHUDDIN y MUSU GUILTY BEYOND
REASONABLE DOUBT of the crime of Murder, as principal, for the unjustified killing of Atty.
Segundo Sotto, Jr. y Gonzalo with the qualifying circumstances of treachery and evident
premeditation and the ordinary aggravating circumstances of use of unlicensed firearm and use of
motor vehicle which facilitated the commission of the crime and the escape of the accused and his
companion from the crime scene, and SENTENCES said accused to suffer the penalty of
RECLUSION PERPETUA and its accessory penalties; to pay the heirs of the late Atty. Segundo G.
Sotto, Jr. the amount of Php50,000.00 indemnity for his death; Php100,000.00 as moral damages;
Php50,000.00 as exemplary damages; Php197,548.25 as actual damages; and Php4,378,000.00 for
loss of earning capacity; and to pay the costs.

SO ORDERED. 6

The trial court found that two (2) eyewitnesses positively and categorically identified appellant as the
gunman who shot Atty. Segundo and Java at around 6:00 p.m. on February 10, 2004 at Farmer’s
Drive, Sta. Maria, Zamboanga City. The trial court stressed that Java could not have been mistaken
in identifying appellant as the gunman as he was just a meter away when he shot Atty. Segundo,
while Juanchito Delos Reyes, a security guard on-duty at an establishment near the crime scene,
also positively identified appellant as the gunman, and could not be mistaken as to the latter’s
identity because they had an eye-to-eye contact for about 5 seconds at a distance of 6 meters. The
trial court added that the testimonies of the defense witnesses were replete with inconsistencies and
contradictions, and were incredible when ranged against the positive testimonies of the prosecution
witnesses who were not shown to have any improper motive to falsely testify against appellant.

On appeal, the CA affirmed with modification the trial court’s decision by increasing the civil
indemnity from P50,000.00 to P75,000.00, and reducing the award of exemplary damages from
P50,000.00 to P30,000.00. The dispositive portion of the CA decision reads:

WHEREFORE, the appeal is DENIED. We affirm the Regional Trial Court Branch 16 of Zamboanga
City Decision dated March 28, 2008 in Criminal Case No. 20664, finding ZALDY SALAHUDDIN y
MUSU guilty of Murder and sentencing him to suffer Reclusion Perpertua and its accessory
penalties, subject to the modification that he is held liable to pay the heirs of [the] late Atty. Segundo
G. Sotto, Jr., death indemnity of PhP75,000.00, moral damages of PhP100,000.00, Php30,000.00 as
exemplary damages, Php197,548.25 as actual damages and PhP4,378,000.00 for loss of earning
capacity and to pay the costs.

SO ORDERED. 7

The CA found that Java, Atty. Segundo’s niece, positively identified appellant as the gunman, as it
was not yet dark and she was just about 1 meter away from him, while Delos Reyes, a security
guard at a nearby establishment, was about 4 to 6 meters away from the crime scene when he
aimed his service firearm at the appellant who, in turn, made a hand sign at him not to interfere. The
CA ruled that appellant failed to present convincing evidence that he was indeed at the barangay
hall the whole day of February 10, 2004, and that his defenses were anchored on the testimonies of
the Barangay Chairman, Kagawad and Secretary, which were all inconsistent from his very own
testimony. Even if appellant’s denial and alibi were corroborated by said defense witnesses, the CA
rejected such defenses as unworthy of belief and credence, as they were established mainly by
appellant himself, his friends and comrades-in-arms. The CA also found that it was not physically
impossible for appellant to be present at the crime scene because the barangay hall where he
supposedly stayed the whole day was just about 44 kilometers away and can be reached within a
travel time of about 1 hour and 30 minutes.

On the issue of whether the crime was committed with evident premeditation, the CA noted that
although the prosecution has clearly established the second element of overt act indicating that
appellant had clung to his determination to commit the crime, no evidence was adduced to prove the
first and third elements, i.e., the time when the appellant had determined to commit the crime, and
the sufficient lapse of time between the decision to commit and the execution of such crime.
Nevertheless, the CA upheld appellant’s conviction for murder, as the prosecution has established
beyond reasonable doubt that the killing of the victim was qualified by treachery.

Hence, this appeal.

In support of his theory that the trial court gravely erred in convicting him despite the failure of the
prosecution to provide evidence of his guilt beyond reasonable doubt, appellant reiterates the same
arguments he raised before the CA.

According to appellant, he was at the barangay hall on February 10, 2004 at 7:00 a.m. and rendered
duty together with Barangay Kagawad Jauhari Hussin until 5:00 p.m. Thereafter, he passed by the
house of Barangay Chairman Sarabi Hussin, who was his neighbor and stayed there until 9:00 p.m.
before he finally went home. For his part, Barangay Chairman Sarabi corroborated
appellant’s alibi, and testified that appellant had reported for duty on February 10, 2004 from 7:00
a.m. to 5:00 p.m., and that they went home together afterwards. Barangay Kagawad Jaurai Hussin
and Barangay Secretary Saiyara Temong also confirmed that appellant had indeed reported for duty
on even date. They added that appellant and the Barangay Chairman rode a motorcycle and went
home together at 5:00 p.m. The barangay logbook showed that appellant timed in at 7:30 a.m. and
timed out at 5:00 p.m. on February 10, 2004.

Considering the foregoing evidence that he was at the barangay hall from 7:30 a.m. to 5:00 p.m. on
February 10, 2004, appellant insists that the defense has shown that it was impossible for him to
have committed the crime by going to Atty. Segundo’s law office which is about 44 kilometers away
or 1½ hour-ride from the city proper. He asserts that the said barangay officials are credible
witnesses, and that their testimonies are worthy of full faith and credit, since they testified in a
categorical and frank manner, and were not shown to have any improper motive to falsely testify in
court. He concedes that there are a few discrepancies and inconsistencies in the testimonies of the
defense witnesses, which pertain only to minor details, and are not of a nature and magnitude that
would impair their credibility.

The appeal lacks merit.

It is well settled that the trial court’s evaluation of the credibility of witnesses is entitled to great
respect because it is more competent to so conclude, having had the opportunity to observe the
witnesses’ demeanor and deportment on the stand, and the manner in which they gave their
testimonies.  The trial judge, therefore, can better determine if such witnesses were telling the truth,
8

being in the ideal position to weigh conflicting testimonies. Further, factual findings of the trial court
as regards its assessment of the witnesses’ credibility are entitled to great weight and respect by the
Court, particularly when the Court of Appeals affirms the said findings, and will not be disturbed
absent any showing that the trial court overlooked certain facts and circumstances which could
substantially affect the outcome of the case. After a careful review of the records, the Court finds that
no compelling reason exists to warrant a deviation from the foregoing principles, and that the RTC
and the CA committed no error in giving credence to the testimonies of the prosecution witnesses.
Prosecution witnesses Java and Delos Reyes were clear and consistent in the identification of
appellant as the one who fatally shot Atty. Segundo several times. As aptly held by the CA:

In the case at bar, eyewitnesses Liezel Mae Java and Juanchito Delos Reyes positively and
categorically identified the accused-appellant to be the assailant of the murder (sic). Liezel Mae
Java, in her testimony, stated that she was one hundred percent (100%) sure that the accused-
appellant was the man who shot her uncle. She could not forget the man because even if it was
around 6 o’clock in the evening it was not yet totally dark and she was only about one meter from the
accused. Juanchito Delos Reyes also declared that he was about four (4) to six (6) meters away
from the scene of the crime and he saw the accused making a sign at him, by the time he aimed his
gun at the assailant. These direct, straightforward and positive testimonies of the aforesaid
witnesses pointing to the accused appellant as the gunman created strong and credible evidence
against him, thus no weight can be given to the alibi of the accused. 9

Murder is defined under Article 248  of the Revised Penal Code as the unlawful killing of a person,
10

which is not parricide or infanticide, attended by circumstances such as treachery or evident

premeditation.  The essence of treachery is the sudden attack by the aggressor without the slightest
11

provocation on the part of the victim, depriving the latter of any real chance to defend himself,
thereby ensuring the commission of the crime without risk to the aggressor.  Two conditions must
12

concur for treachery to exist, namely, (a) the employment of means of execution gave the person
attacked no opportunity to defend himself or to retaliate; and (b) the means or method of execution
was deliberately and consciously adopted.  In People v. Biglete,  the Court ruled:
13 14

x x x Indeed, the victim had no inkling of any harm that would befall him that fateful night of August
27, 2001. He was merely plying his regular [jeepney] route. He was unarmed. The attack was swift
and unexpected. The victim’s arms were on the steering wheel; his focus and attention on the traffic
before him. All these showed that the victim was not forewarned of any danger; he also had no
opportunity to offer any resistance or to defend himself from any attack. 15

In this case, the trial court correctly ruled that the fatal shooting of Atty. Segundo was attended by
treachery because appellant shot the said victim suddenly and without any warning with a deadly
weapon, thus:

x x x Atty. Segundo G. Sotto, Jr., who was driving his jeep with his teenage niece as passenger
sitting on his right side on the front seat, was totally unaware that he will be treacherously shot just
200 meters away from his residence. He was unarmed and was not given any opportunity to defend
himself or to escape from the deadly assault. After he was hit when the gunman fired the first two
shots at him and his niece and after he lost control of his jeep which bumped an interlink wire fence
and stopped, he was again shot three times by the gunman. x x x 16

The essence of evident premeditation, on the other hand, is that the execution of the criminal act
must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent
during a space of time sufficient to arrive at a calm judgment.  For it to be appreciated, the following
17

must be proven beyond reasonable doubt: (1) the time when the accused determined to commit the
crime; (2) an act manifestly indicating that the accused clung to his determination; and (3) sufficient
lapse of time between such determination and execution to allow him to reflect upon the
circumstances of his act.  As aptly pointed out by the Office of the Solicitor General, the trial court
18

conceded that the specific time when the accused determined to commit the crime, and the interval
between such determination and execution, cannot be determined.  After a careful review of the
19

records, the Court agrees with the CA’s finding that no evidence was adduced to prove the first and
third elements of evident premeditation.
In seeking his acquittal, appellant raises the defenses of denial and alibi. However, such defenses, if
not substantiated by clear and convincing evidence, are negative and self-serving evidence
undeserving of weight in law.  They are considered with suspicion and always received with caution,
20

not only because they are inherently weak and unreliable but also because they are easily fabricated
and concocted.

Denial cannot prevail over the positive testimony of prosecution witnesses who were not shown to
have any ill-motive to testify against the appellants.  Between the categorical statements of the
21

prosecution eyewitnesses Java and Delos Reyes, on one hand, and the bare denial of the appellant,
on the other, the former must prevail. After all, an affirmative testimony is far stronger than a
negative testimony especially when it comes from the mouth of a credible witness. In order for the
defense of alibi to prosper, it is also not enough to prove that the accused was somewhere else
when the offense was committed, but it must likewise be shown that he was so far away that it was
not possible for him to have been physically present at the place of the crime or its immediate vicinity
at the time of its commission.  The Court sustains the CA in rejecting appellant’s defenses of denial
22

and alibi, as follows:

In the instant case, accused-appellant failed to present convincing evidence that he was indeed at
the barangay hall the whole day of February 10, 2004. Accused anchored his defense from the
testimonies of [the] Barangay Chairman, Barangay Kagawad and Barangay Secretary, which were
all inconsistent from his very own statements in court. First, accused claimed that on February 10,
2004, he just stayed at the Barangay Hall and then did some rounds at the school nearby. However,
Barangay Chairman Hussin claimed that accused just stayed only at the barangay hall for the whole
day. Second, accused claimed that at around 5 o’clock in the afternoon, he went home walking
together with Barangay Kagawad Jauhari Hussin. On the other hand, Barangay Chairman testified
that he went home together with the accused at around 5 o’clock in the afternoon of that day.
Jauhari Hussin corroborated [the] Barangay Chairman’s statement saying that accused and the
latter went home together with the accused driving the motorcycle. Third, accused claimed that they
did not eat at the house of the Barangay Captain, for they only had long conversations and he only
ate at their house, at around 9 o’clock. Conversely, Barangay Captain Hussin testified that accused
stayed at their house and ate dinner there. Fourth, accused claimed that he does not know how to
drive a motorcycle for he was just learning the skill. On the other hand, the barangay captain,
corroborated by the testimony of his brother Barangay Kagawad affirmed that the accused and the
former went home together by the use of a motorcycle, with the accused driving it. All of these are
declarations of the defense witnesses which, instead of corroborating accused’s defense of alibi and
denial, tend to diminish the credibility of the accused. 1avvphi1

Furthermore, even if the defense of alibi was corroborated by [the] testimonies of the Barangay
Chairman, Barangay Kagawad, and Barangay Secretary, it is undeserving of belief because it has
been held that alibi becomes more unworthy of merit where it is established mainly by the accused
himself and his or her relatives, friends, and comrades-in-arms, and not by credible persons. 23

In contrast to the credible testimonies of the prosecution witnesses Delos Reyes and Java who
positively identified appellant as the gunman, the testimonies of the defense witnesses in support of
appellant’s denial and alibi, are tainted with material inconsistencies.

On the one hand, Barangay Chairman Sarabi Hussin testified that he, together with appellant,
reported for work at the Barangay Hall of Dita on February 10, 2004 at 7 o’clock in the morning and
left at 5 o’clock in the afternoon, and that he let appellant drive his motorcycle from his home, to the
barangay hall, and back.  Despite his insistence that he signed the attendance logbook on February
24

10, 2004, Sarabi later admitted that his signature does not appear thereon.  On the other hand,
25

appellant testified that Sarabi did not report for work that day, and that aside from himself, the two
(2) other persons at the Barangay Hall that day were Barangay Kagawad Jauhari Hussin and
Barangay Secretary Sairaya Temong.  Appellant added that after 5 o’clock in the afternoon of
26

February 10, 2004, his companion in going home was Barangay Kagawad Jauhari, and not Sarabi.

With respect to the aggravating circumstances alleged in the Information, the Court finds that the
trial court duly appreciated the presence of the use of unlicensed firearm in the commission of the
crime, as well as the use of motor vehicle to facilitate its commission and escape of the accused
from the crime scene.

To establish the special aggravating circumstance of use of unlicensed firearm in the fatal shooting
of Atty. Segundo, the prosecution presented the following evidence: (1) testimony of Delos Reyes
that the gun used by appellant was a "short gun";  (2) the testimony of SPO3 Ronnie Eleuterio and
27

the Certification  from the Firearms, Explosives, Security Agencies and Guards Section (FESAGS)
28

of the Police Regional Office 9 of the Philippine National Police (PNP) to the effect that records of
the said office do not show that a firearms license, permit to carry or permit to transport firearms
outside of residence were issued to appellant; (3) the request  for ballistics examination of two
29

pieces .45 caliber slugs recovered by the attending physicians on the body of the victim and two
pieces of .45 caliber slugs that were test-fired from the .45 caliber pistol recovered from appellant
when he was arrested by NBI operatives; and (4) FID Report No. 192-2-2-8-2004  dated September
30

15, 2004 which contain the result of the said examination.

In People v. Dulay,  the Court ruled that the existence of the firearm can be established by testimony
31

even without the presentation of the firearm. In the said case, it was established that the victims
sustained and died from gunshot wounds, and the ballistic examinations of the slugs recovered from
the place of the incident showed that they were fired from a .30 carbine rifle and a .38 caliber
firearm. The prosecution witnesses positively identified appellant therein as one of those who were
holding a long firearm, and it was also proven that he was not a licensed firearm holder. Hence, the
trial court and the CA correctly appreciated the use of unlicensed firearm as a special aggravating
circumstance.

In contrast, in People v. De Leon,  the Court found that the said aggravating circumstance was not
32

proven by the prosecution because it failed to present written or testimonial evidence to prove that
appellant did not have a license to carry or own a firearm. Although jurisprudence dictates that the
existence of the firearm can be established by mere testimony, the fact that appellant therein was
not a licensed firearm holder must still be established.
33

Despite the result of the ballistic examination that the slugs test-fired from the gun recovered from
appellant when he was arrested, were different from the 2 slugs recovered from the body of the
victim, the prosecution was still able to establish the special aggravating circumstance of use of
unlicensed firearm in the commission of the crime. Given that the actual firearm used by appellant in
shooting the victim was not presented in court, the prosecution has nonetheless proven through the
testimony of Delos Reyes that the firearm used by appellant was a "short gun."  It has also
34

established through the testimony of SPO3 Ronnie Eleuterio and the Certification  from the FESAGS
35

of the PNP that appellant was not issued a firearms license, a permit to carry or permit to transport
firearms outside of residence.

Notably, the term unlicensed firearm includes the unauthorized use of licensed firearm in the
commission of the crime, under Section 5  of Republic Act (RA) No. 8294.  Assuming arguendo that
36 37

the actual firearm used by appellant was licensed, he still failed to prove that he was so authorized
to use it by the duly licensed owner. The prosecution having proven that appellant was not issued a
firearms license or permit to carry or permit to transport firearms, the burden of evidence is then
shifted to appellant to prove his authorization to use the firearm. All told, the trial court correctly
appreciated the presence of the said aggravating circumstance in imposing the penalty against
appellant.

Meanwhile, the use of a motor vehicle is aggravating when it is used either to commit the crime or to
facilitate escape,  but not when the use thereof was merely incidental and was not purposely sought
38

to facilitate the commission of the offense or to render the escape of the offender easier and his
apprehension difficult.  In People v. Herbias,  the Court held:
39 40

The use of motor vehicle may likewise be considered as an aggravating circumstance that attended
the commission of the crime. The records show that assailants used a motorcycle in trailing and
overtaking the jeepney driven by Saladio after which appellant’s back rider mercilessly riddled with
his bullets the body of Jeremias. There is no doubt that the motorcycle was used as a means to
commit the crime and to facilitate their escape after they accomplished their mission. 41

The prosecution has proven through the testimonies of Java and Delos Reyes that appellant was
riding a motorcycle behind the unknown driver when he twice shot Atty. Segundo who thus lost
control of his owner-type jeep and crashed into the interlink wire fence beside the road. The
motorcycle then stopped near the jeep, and appellant shot Atty. Segundo again thrice, before
leaving the crime scene aboard the motorcycle. Clearly, the trial court correctly appreciated the
generic aggravating circumstance of use of motor vehicle in the commission of the crime.

Since the fatal shooting of the victim was attended by the qualifying circumstance of treachery, the
Court upholds the trial court in convicting appellant of the crime of murder. The penalty for murder
under Article 248 of the Revised Penal Code is reclusion perpetua to death. Article 63 of the same
Code provides that, in all cases in which the law prescribes a penalty composed of two indivisible
penalties, the greater penalty shall be applied when the commission of the deed is attended by one
aggravating circumstance. Although evident premeditation was not established, the other
aggravating circumstances of use of unlicensed firearm and use of motor vehicle in the commission
thereof, were alleged in the Information and proven during the trial. The presence of such
aggravating circumstances warrants the imposition of the death penalty. However, in view of the
enactment of RA No. 9346,  the death penalty should be reduced to reclusion perpetua "without
42

eligibility for parole" pursuant to A.M. No. 15-08-02-SC. 43

Anent the civil liability of appellant, the award of actual damages in the amount of P197,548.25 is in
order because the victim’s spouse, Gloria Sotto, had testified that funeral expenses were incurred
and they were duly supported by official receipts. 44

In addition, the award of civil indemnity is mandatory and granted to the heirs of the victim without
need of proof other than the commission of the crime.  Even if the penalty of death is not to be
45

imposed because of the prohibition in R.A. No. 9346, the award of civil indemnity of P75,000.00 is
proper, because it is not dependent on the actual imposition of the death penalty but on the fact that
qualifying circumstances warranting the imposition of the death penalty attended the commission of
the offense.  In recent jurisprudence,  the Court has increased the award of civil indemnity from
46 47

P75,000.00 to P100,000.00.

Moreover, in line with current jurisprudence  on heinous crimes where the imposable penalty is
48

death but reduced to reclusion perpetua pursuant to R.A. No. 9346, the award for moral damages
has been increased from P75,000.00 to P100,000.00, while the award for exemplary damages has
likewise been increased from P30,000.00 to P100,000.00. Hence, while the CA correctly affirmed
the trial court’s award of P100,000.00 as moral damages, the award of civil indemnity and exemplary
damages in the amounts of P50,000.00 each should be both increased to P100,000.00. The award
of moral damages is called for in view of the violent death of the victim, and these do not require any
allegation or proof of the emotional sufferings of the heirs.  The award of exemplary damages is also
49

proper because of the presence of the aggravating circumstances of use of unlicensed firearm and
use of a motor vehicle in the commission of the crime.

However, the Court is constrained to disallow the award of P4,398,000.00 as compensation for loss
of earning capacity for insufficiency of evidence. The rule is that documentary evidence should be
presented to substantiate a claim for loss of earning capacity.  By way of exception, damages for
50

loss of earning capacity may be awarded despite the absence of documentary evidence when: (1)
the deceased is self-employed and earning less than the minimum wage under current labor laws, in
which case, judicial notice may be taken of the fact that in the deceased's line of work, no
documentary evidence is available; or (2) the deceased is employed as a daily wage worker earning
less than the minimum wage under current labor laws.  None of such exceptions was shown to
51

obtain in this case.

Even if the testimony of Gloria Sotto, the victim’s spouse, was not disputed by the defense, the
prosecution failed to present any documentary evidence to prove the victim’s monthly income. Thus,
the Court disagrees with the trial court in awarding P4,398,000.00 as compensation for loss of
earning capacity based on the unsubstantiated testimony of Gloria that her husband had a good law
practice and earned at least P50,000.00 a month or P600,000.00, as one of the prominent law
practitioners in Zamboanga City with almost daily appearance in court. Be that as it may, in light of
settled jurisprudence and of Gloria’s undisputed testimony, the Court finds it reasonable to award
P1,000,000.00 as temperate damages in lieu of actual damages for loss of earning capacity. As held
in Tan, et al. v. OMC Carrier, Inc., et al.:
52

In the past, we awarded temperate damages in lieu of actual damages for loss of earning capacity
where earning capacity is plainly established but no evidence was presented to support the
allegation of the injured party’s actual income.

In Pleno v. Court of Appeals, we sustained the award of temperate damages in the amount of
P200,000.00 instead of actual damages for loss of earning capacity because the plaintiffs’ income
was not sufficiently proven.

We did the same in People v. Singh, and People v. Almedilla, granting temperate damages in place
of actual damages for the failure of the prosecution to present sufficient evidence of the deceased’s
income.

Similarly, in Victory Liner, Inc. v. Gammad, we deleted the award of damages for loss of earning
capacity for lack of evidentiary basis of the actual extent of the loss. Nevertheless, because the
income-earning capacity lost was clearly established, we awarded the heirs P500,000.00 as
temperate damages. 53

Finally, all the damages awarded shall incur legal interest at the rate of six percent (6%) per
annum from the finality of judgment until fully paid.
54

WHEREFORE, the appeal is DISMISSED. The Decision dated October 25, 2011 of the Court of
Appeals in CA-G.R. CR-HC No. 00638-MIN is AFFIRMED with the following MODIFICATIONS: (1)
to qualify the penalty of reclusion perpetua to be "without eligibility for parole"; (2) to increase the
award of civil indemnity from P75,000.00 to P100,000.00; (3) to increase the award of exemplary
damages from P30,000.00 to Pl00,000.00; (4) to award Pl,000,000.00 as temperate damages in
lieu of the award of P4,398,000.00 as compensation for loss of earning capacity of Atty. Segundo G.
Sotto Jr.; and (5) to impose the legal interest rate of six percent (6%) per annum on all the damages
awarded from the finality of judgment until fully paid.
SO ORDERED.

G.R. No. 95756 May 14, 1993

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs. CRISOLOGO EMPACIS, Accused-Appellant.

The Solicitor General for plaintiff-appellee. chanrobles virtual law library

Antonio A. Almirante, Jr. for accused-appellant.

NARVASA, C.J.:

In the Regional Trial Court of Cebu City, 1 five men, namely:

Crisologo Empacis, Romualdo Langomez, Zacarias Solis, Carlito
Antiga, and Bebe Antiga, were indicated 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 Debu . . . (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
occassion 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.chanroblesvirtualawlibrary chanrobles virtual law library

That the crime was committed by a band, all the accused being
armed with carbines and bladed weapons (Article 296, RPC). chanroblesvirtualawlibrary chanrobles virtual law library

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
arrainged and tried.chanroblesvirtualawlibrary chanrobles virtual law library

Sometime in December, 1987, during the trial, Carlito Antiga died

from a gunshot wound. 4 chanrobles virtual law library

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 disposition: 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. chanroblesvirtualawlibrary chanrobles virtual law library

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.   chanroblesvirtualawlibrary chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library
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 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 chanrobles virtual law library

Following is the story narrated to the Trail Court by the Government

witnesses. chanroblesvirtualawlibrary chanrobles virtual law library

At about 9 o'clock on the night of September 16, 1986, as Fidel

Saromines and his wife, Camila, were about to close to 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.chanroblesvirtualawlibrary chanrobles virtual law library

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 certain
Carlito Antiga. 8 A voice was heard from below saying, "Stab
him!" 9 to which Langomez replied, "I already stabbed (him)." 10 chanrobles virtual law library
From his little sister's room, Fidel's thirteen-year odl 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!" chanrobles virtual law library

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
penetraded the lungs and heart, were
fatal. 11
chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

Police officers came to Dr. Deiparine's clinic the following morning,

looking for a man 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. chanroblesvirtualawlibrary chanrobles virtual law library

Crisologo was later brought to Municipal Judge Gerardo Gestopa,

before whom he took oath on his affidavit. Before admnistering 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. chanroblesvirtualawlibrary chanrobles virtual law library

The three (3) accused all took the witness stand in their
defense, 12 and gave stories different from that of the prosecution
witnesses. chanroblesvirtualawlibrary chanrobles virtual law library

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 the 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. 13 chanrobles virtual law library

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 and their complicity in the offense. 14
law library
chanrobles virtual

The Court a quo rejected (quite correctly, it may be said) the sworn

statement purpotedly execute by Empacis on September 17, 1986,
offered by the prosecution, condemning it was "null and void, . . .
offensive to Art. III, Section 20, of the New Constitution and the
teachings of the Supreme Court
. . . ." 15 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," 16 (b) "in the
nighttime;" 17 (c) with employment of "craft of fraud;" 18 and (d)
with advantage being taken of superior strength. 19 chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

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 victims 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. 20
chanrobles virtual law library
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. 21 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 - which the appellant
seeks to make capital - is not sufficient warrant to reject and
discard Peter's evidence. The discrepacy is at best a minor one, not
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.chanroblesvirtualawlibrary chanrobles virtual law library

This Court also agrees that conspiracy is adequately proven by the

evidence. Langomez and Crisologo Empacis came to Fidel's store
late 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 command; 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. 22 chanrobles virtual law library

The aggravating circumstance of craft or fraud 23 was properly

appreciated against Empacis. He and Romualdo pretended to
be bona fide  customers of the victim's store and on his 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; 24

b) pretended to be needful of medical treatment, and through this

artifice, entered the house of the victim whom they thereupon
robbed and killed; 25

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; 26

d) pretended to be customer wanting to buy a bottle of wine; 27

e) pretended to be co-passengers of the victim in a public utility

vehicle; 28

f) posed as customers wishing to buy cigarettes; and as being

thristy, asking for drink of water. 29
chanrobles virtual law library

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. 30 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.
law library
chanroblesvirtualawlibrary chanrobles virtual

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; 32 it must appear that they purposely
employed excessive force, force out of proportion to the means of
defense available to the person attacked. 33 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. chanroblesvirtualawlibrary chanrobles virtual law library

That the crime was "committed in the dwelling of the offended

party, . . . the latter . . . not (having) given provacation," was also
correctly appreciated as an aggravating circumstance. 34 chanrobles virtual law library

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. 35 chanrobles virtual law library

The Court a quo sentenced a 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, 37 the Trial Court somehow omitted to require the return
of said stolen money, as required by law. 38 chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

IT IS SO ORDERED.
G.R. No. 127849             August 9, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VIVENCIO LABUGUEN @ DENCIO, accused-appellant.

PER CURIAM:

For automatic review is the Decision 1 dated October 7, 1996, of the Regional Trial Court of
Cauayan, Isabela, Branch 20, finding appellant Vivencio Labuguen @ Dencio guilty of the crime of
Robbery with Homicide in Criminal Case No. 20-738, and sentencing him thus:
 "WHEREFORE, finding the accused VIVENCIO LABUGUEN @ DENCIO GUILTY beyond
reasonable doubt of the crime of ROBBERY WITH HOMICIDE as alleged in the information
and considering the presence of the aggravating circumstances of fraud and craft without
any mitigating circumstance, the Court, considering the provision of Article 294, paragraph of
1 

the Revised Penal Code, as amended by Republic Act 7659, hereby sentences said
accused VIVENCIO LABUGUEN the penalty of DEATH. The accused Vivencio Labuguen is
hereby ordered to pay the heirs of Bonifacio Angeles P40,000.00 for the money taken,
P55,100.00 for the expenses incurred during the wake and- burial of the deceased Bonifacio
Angeles and P50,000.00 indemnification. Cost against the accused. 1âwphi1.nêt

SO ORDERED. 2

Filed on February 3, 1995, the information indicting appellant alleges:

"That on or about the 27th day of October, 1994, in the municipality of Angadanan, province
of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused,
by means of force violence and intimidation against person and with intent to gain, did then
and there, willfully, unlawfully and feloniously, take, steal and carry away cash money in the
amount of P40,000.00 and belonging to Bonifacio Angeles @ Asiong, against his will and
consent, to the damage and prejudice of the said Bonifacio Angeles @ Asiong, in the
aforesaid amount of P40,000.00; that on the occasion and by reason of said robbery, and for
the purpose of enabling him to take, steal and bring away the said money, the accused, did
then and there, willfully, unlawfully and feloniously, with intent to kill and without any just
motive, assault, attack and shoot for several times with a firearm and stab for several times
with a pointed/bladed instrument the said Bonifacio Angeles @ Asiong, inflicting upon him
multiple gunshot wounds and multiple stab wounds on the different parts of his body, which
directly caused his death.

CONTRARY TO LAW. 3

With the appellant, assisted by Atty. Dionisio E. Bala, Jr., pleading not guilty upon arraignment on
4 

April 5, 1995, trial ensued with the prosecution presenting Marilou Dabo, Tomas Pabigayan, Romeo
(Romy) Bariza, Pantaleon Tagora, Elpidio Rivera SPO2 Joselito Apalisoc, SPO1 Elmo Bungag,
Edgar Valle, Geronimo Rivera, Dr. Inocencio R. Agpaoa and Federico Angeles, as its witnesses.

The defense called on Victoriano Dy, Romeo Estacio, Precila Labuguen, Lt. David Palaganas,
Tranquilino Cagurangan, Jessie Cabbab and Orlando Ramos and the appellant himself to testify.

The facts that matter are synthesized in the decision of the trial court as follows:

". . . Bonifacio Angeles, 56, (Bonifacio) was engaged in the business of buying cows which
he sold at the public market. Although he was married to Damasa Gante with whom he had
nine (9) children, he lived with another woman, Marilou Dabo, 28, at Coloma Village, San
Fermin, Cauayan, Isabela. They begot two (2) children during their ten (10) years of
coverture.

Early in the morning of October 27, 1994, Tomas Pagbigayan (sic) (Tomas) went to the
house of Bonifacio at San Fermin. Tomas offered two cows to sell to Bonifacio. Bonifacio
said that when he has time, he will go and see the cows. After their talk Bonifacio gave
Tomas a lift on his Honda Sports XL100 motorcycle and accompanied him to the crossing
where he could take a ride home. Tomas sat on the backseat of the motorcycle.
Marilou Dabo declared that when Bonifacio returned home, the accused Vivencio (Dencio)
Labuguen was with him. The accused sat behind Bonifacio who drove the motorcycle.

The accused stayed on the porch of the house. Marilou Dabo served him coffee. The
accused told Bonifacio that he knows of three big cows for sale and that the place where
they are is near. Bonifacio said that he will go and see the cows, after breakfast.

Marilou Dabo declared in her testimony that the accused had a handkerchief tied around his
forehead as a headband. He was wearing dark sunglasses, dark jacket and a faded maong
pants. He wore rubber slippers. Marilou Dabo recognized him as the accused Vivencio
Labuguen because before October 27, 1994, the accused had already come to their house
and offered to sell a lot to Bonifacio. After Bonifacio finished his breakfast, he went to the
porch and talked to the accused for about fifteen (15) minutes. Marilou Dabo was in the
kitchen three meters away from them.

Bonifacio entered their room and took P40,000.00 from the cabinet. Bonifacio got
P40,000.00 because the accused told him the cows are big. He counted the money and
placed it inside his pocket. Marilou Dabo was beside him. She saw Bonifacio count the
P40,000.00 in P1,000.00, P500.00 and P100.00 bills.

Then Bonifacio and the accused rode on the motorcycle. Bonifacio drove the motorcycle.
The accused was seated behind Bonifacio. This was past 8:00 o'clock in the morning of
October 27, 1994.

Bonifacio and accused Vivencio Labuguen passed by the house of Romeo Bariza, 47,
farmer, who resided in San Fermin, Cauayan. His house was 120 meters away from the
house of Bonifacio. Bariza was the planting 'kahoy' when he saw at a distance of 20 meters
Bonifacio and the accused pass by riding on a motorcycle color (sic) red and black, running
slowly because the road was full of potholes. Bariza declared that Bonifacio and the accused
glanced at him. He recognized Bonifacio because he is his compadre and the accused
because he had known him months before that date. Accused was wearing sunglasses and
a cloth on his forehead. In Court, Bariza identified the accused Vivencio Labuguen as the
same person he saw riding with Bonifacio that morning of October 27, 1994, while he was
planting 'kahoy.'

Tomas declared that he was not able to get immediately a ride going home. While at the
crossing waiting for a ride, he saw Bonifacio and the accused Vivencio Labuguen. They rode
on a motorcycle driven by Bonifacio. The accused sat on the backseat of the motorcycle.
They glanced at Tomas. Tomas saw the face of the accused who was wearing sunglasses
with a handkerchief tied around his forehead. Tomas recognized the accused Vivencio
Labuguen because on October 22, 1994, he saw him talking to Romy Bariza on the road in
front of the latter's house in San Fermin. When the accused left, he (Tomas) asked Romy
Bariza who was the person he talked with and he answered, 'Dencio.' Dencio is the
nickname of the accused Vivencio Labuguen. Accused then left driving a tricycle.

At about 10:00 o'clock that morning of October 27, 1994, Pantaleon Tagora, 55, farmer and
a resident of Ramona, Angadanan, was on his way home. He had just come from his
cornfield. He was walking on top of the irrigation canal near the service drop when he met
two (2) male persons. One was younger than the other. The young one wore a jacket which
was quite yellow. His face was quite round. He was not wearing sunglasses or headband. In
Court, Tagora identified the younger person as Vivencio Labuguen. (TSN p. 10, Tagora, July
5, 1995). The older one wore a faded maong pants. His face was quite elongated. They were
seated four (4) meters apart. Tagora first met the older male person. This place where
Tagora met them was one and a half kilometers from his house.

Tagora passed by the two persons without talking to them. After walking 200 meters away
from them, he saw a motorcycle parked on the way.

The top of the irrigation canal was used as an exit road to the National Highway between
Alicia on the South and Cauayan on the North. (TSN-Dr 2 Agpaoa, p. 13, October 31, 1995).

Elpidio Rivera, 31, farmer and a resident of Barangay Viga, Angadanan, one (1) kilometer
West of Ramona, was sundrying (sic) his corn on the concrete edge of the road near his
house at about 10:30 o'clock that morning of October 27, 1994. This road goes to
Angadanan and then to Cauayan (TSN — p. 7, Elpidio Rivera, August 16, 1995). His
attention was attracted by a loud roar of a motorcycle coming towards his place. Elpidio
stopped working. At a distance he saw a person riding on a red motorcycle (sports type). He
carne from the West from Ramona and going towards the East. When it was near the place
where Elpidio was drying corn, the motorcycle slowed down because it was a curve. Elpidio
declared in court that he saw the face of the motorcycle rider: quite round, wearing a light
yellow jacket with a handkerchief around his forehead. The handkerchief was black with red
dots. He was 6 to 7 meters from Elpidio when he passed by. In Court, Elpidio readily
identified the accused Vivencio Labuguen as the person he saw riding on the motorcycle.
(TSN — Rivera, p. 8, August 16, 1995)

Between 11:00 to 12:00 o'clock noon on October 27, 1994, Geronimo Rivera, 45, was driving
a Challenger, a passenger mini-bus (sic), at Barangay Nappaccu Grande (Nappaccu), Reina
Mercedes, Isabela. His conductor was Eduardo Valle, 20. They came from Santiago,
Isabela, bound for Tuguegarao, Cagayan. There were passengers in the bus.

At Nappaccu, Geromino Rivera (Rivera) saw at a distance of 200 meters, a person behind
some talahibs near the National Highway. When the mini-bus (sic) came near to a distance
of 50 meters from the person, Rivera noticed that he was wiping something on his right hand
and right face. When the mini-bus (sic) was near, the person flagged it down. The bus
stopped. Rivera saw a Honda XL100 motorcycle three (3) meters from the person near the
edge of the highway.

Conductor Eduardo Valle, went down the mini-bus (sic) to allow the person to get inside the
bus. He observed that his clothes, particularly the right side of his jacket and the right side of
his pants, was soaked with blood. He was wearing a cream jacket, maong pants, sunglasses
and a handkerchief tied around his forehead. Eduardo Valle thought he met an accident but
when he looked at the Honda XL100 motorcycle parked behind the person, it was not
damaged and that he had no injuries.

The person sat on the 5th row seat, a 3-seater, on the left. He was alone there. The 4th, 3rd,
2nd and 1st row of seats were vacant. He placed the palm of his hands behind his head. He
acted as if he was looking for something which he could not find. Rivera could see him
clearly on the big rear view mirror (1 foot by 1/2) above him.

Conductor Eduardo Valle went to him and asked him where he was going but the person did
not answer, instead, without saying anything, he gave a P10.00 bill to Eduardo Valle. He
asked the person where he was going to alight so he could give him his change, but the
person did not answer. Eduardo Valle declared in Court that he saw the breast pocket of the
jacket of the person full of money, two inches thick P100.00 bills. One bill was falling, so
Eduardo Valle told the person, 'Brod, your money is falling.'

In Court, Geronimo Rivera and Eduardo Valle positively identified the person who rode on
the mini-bus (sic) with blood-soaked clothes and plenty of money on the breast pocket of his
jacket as the accused Vivencio Labuguen. They also positively identified the Honda XL100
(Exhibit 'G') as the same motorcycle behind the accused which was left when he boarded the
mini-bus (sic) at Nappaccu.

When some passengers alighted at the junction of the road in Naguillan going to San
Mariano, Isabela, the accused suddenly stoop up and alighted from the mini-bus (sic). He did
not even get his change.

Going back to Pantaleon Tagora at Ramona, Angadanan. Between 1:00 to 2:00 o'clock in

the afternoon of October 27, 1994 while he was in his house at Ramona, he heard that a
dead person was found near the irrigation canal. He and his neighbors went to see the dead
person. He was surprised to see that the dead person was the same older person who was
the companion of the younger one he met that morning. He identified the younger person as
the accused. The body of the deceased was on the middle of a ricefield (sic), 50 meters from
the service drop of the irrigation canal.

At about 5:00 o'clock that afternoon of October 27, 1994, Dr. Agpaoa in the presence of
Mayor Ong and Chief of Police Redentor Garcia of Angadanan, Isabela, conducted an
examination of the body of the deceased person at the middle of a ricefield (sic) in Barangay
Ramona, Angadanan. The dead person was identified as Bonifacio Angeles by his brother
Federico Angeles. Dr. Agpaoa wrote his findings while on the ricefield (sic). Later, after
examining again the body at the Funeraria, he put his findings into final form in his Autopsy
Report marked Exhibit 'K'. In his Autopsy Report, Dr. Agpaoa found the following wounds on
the body of the deceased Bonifacio Angeles, thus:

'Postmortem Findings

1. Gunshot wound, entrance left, inferior margin of left clavicle, slightly outside the left
midclavicular line, directed slightly downward, backward and medially.

2. Gunshot wound, entrance, right side of the thoracic cage, along slight anterior axillary line,
between 6th & 5th costal interspace, directed medially.

3. Stab wound, left temporal area, above the left ear.

4. Stab wound, supra sternal notch (deep) penetrating chest cavity.

5. Stab wound, supra clavicular area, downwards, penetrating chest cavity.

6. Multiple superficial stab wound over anterior chest wall and abdominal wall.

7. Stab wound on both thighs, anterior surface.

Cause of death — Internal Hemorrhage.'

xxx             xxx             xxx

 The heirs of Bonifacio Angeles spent P55,000.00 for his burial (Exhibit 'L')." 5

Appellant placed reliance on his defense of denial and alibi. Vehemently denying the charge against
him, he asseverated that he could not have committed the crime on October 27, 1994 because he
left for Maconacon, Isabela on October 17, 1994, to manage the logging operation of a certain
Orlando Ramos and stayed there until December 20, 1994. 6

On October 7, 1996, the trial court handed down its decision under review. The defense theorized
that:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF

SURMISES, SPECULATIONS, INSUFFICIENT AND INCREDIBLE CIRCUMSTANTIAL
EVIDENCE;

II

THE TRIAL COURT ERRED IN TOTALLY DISREGARDING THE EVIDENCE ADDUCED

BY THE DEFENSE; and

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE OFFENSE
CHARGED BEYOND REASONABLE DOUBT. 7

Circumstantial evidence is that which indirectly proves a fact in issue. The fact-finder must draw an
inference from such evidence. It is at times essential to resort to circumstantial evidence since to
insist on direct testimony would, in many cases, result in setting felons free and deny proper
protection to society. An accused can be convicted on the basis of circumstantial evidence where
the circumstances constitute an unbroken chain leading to one fair reasonable conclusion and
pointing to the accused, to the exclusion of all others, as the guilty person. Under Section 4, Rule
8 

134 of the Rules on Evidence, circumstantial evidence is sufficient for conviction if:

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt.

In the case under consideration, the testimonies of the prosecution witnesses spawn and generate
the following facts which constitute an unbroken chain of events leading to the inevitable conclusion
of guilt on the part of the appellant, to wit:

1. In the early morning of October 27, 1994, appellant went to the house of the victim to convince
him to purchase the cows offered for sale.

2. The victim agreed to see the cows, bringing along with him P40,000.00. Thus, at around 8:00 in
the morning of the same day, the victim and the appellant rode on the motorcycle of the victim with
the latter as the driver.
3. At past 8:00 in the morning of October 27, 1994, prosecution witness Romeo Bariza saw the
victim and appellant riding on a motorcycle.

4. At about 10:00 of the same day, the victim and the appellant were seen sitting on top of an
irrigation canal at Barangay Ramona, Angadanan, Isabela.

5. Around 10:30 in the morning of October 27, 1994, appellant was seen alone on the motorcycle of
the victim, speeding away from Barangay Ramona.

6. Between 11:00 to 12:00 noon of October 27, 1994, appellant rode a minibus leaving the
motorcycle of the victim on the shoulder of the road.

7. The bus conductor noticed that the right side of appellant's jacket and pants were soaked with
blood, and there were two inches thick of one hundred peso bills tucked in the breast pocket of
appellant's jacket.

8. Between 1:00 to 2:00 in the afternoon of the same day, the dead body of the victim with gunshot
and stab wounds was found by the residents of Barangay Ramona, 150 meters from the irrigation
canal.

9. Around 5 00 o'clock in the afternoon also of the same day, the municipal health officer, the chief of
police, the mayor, and some peace officers of Angadanan, Isabela, proceeded to the place where
the body of the unidentified victim was found (Exhibit "J", O.R., p. 156; and TSN, p. 4, October 31,
1995, direct exam. of Dr. Agpaoa).

10. Federico Angeles identified the deceased as his brother Bonifacio Angeles (Exhibit "K", O.R., p.
157.).

After a careful study, the Court is of the ineluctable finding and conclusion that the aforementioned
circumstantial evidence has established the guilt of appellant beyond reasonable doubt. The time
element of the circumstances thus proven link each chain of circumstances to another pointing to a
reasonable conclusion and no other but the guilt of appellant. From the early morning of October 27,
1994 to 10:00 o'clock in the morning of the same day, the prosecution has sufficiently shown that the
appellant was the last person seen with the victim before the latter was killed. About thirty minutes
later, appellant was seen speeding away from Barangay Ramona where he and the victim were
previously spotted by one of the prosecution witnesses. And, escaping from the consequences of his
felonious act, appellant, boarded a minibus, leaving the motorcycle of the victim on the side of the
road. All the foregoing circumstances, coupled with the fact that appellant had two inches-thick of
one hundred peso bills in his possession when he rode on the minibus with his jacket and pants
splattered with blood, suffice to prove beyond reasonable doubt the guilt of appellant of the crime
of robo con homicido perpetrated in the morning of October 27, 1994.

In People vs. Asis, the Court affirmed the conviction of the accused of the crime of homicide on the
9 

basis of circumstantial evidence, holding thus:

". . . We find that all these requisites have been successfully met by the prosecution. The
evidence showed that appellant was one of two persons last seen in the company of the
victim before he was killed. On the morning that the victim's body was found, the appellant
was observed with his clothes smeared with blood. Witness dela Cruz saw his left shoulder
with bite marks and his right hand swollen. When asked about the injuries, he admitted
engaging in a fight in Bgy. Pinakpinakan. On the same morning, some CAFGU soldiers
 spotted the appellant with co-accused Mendoza while walking by the road in Bgy. Caingin.
They had blood-stained clothes. The two ran away, when pursued. Their flight evinces guilt.
These circumstances taken together lead to no other conclusion but that the appellant is
guilty as charged."10

Appellant's intention to rob the victim can be gleaned unerringly from the attendant circumstances.
Obviously, robbery was the motive that impelled appellant to convince the victim to go with him.
Under the pretext of selling cows to him, appellant cajoled the victim to bring a large sum of money
and thereafter, lured him to a route where appellant could divest him of his money with the least
danger of being caught. As aptly surmised by the trial court, the two inches thick of one hundred
peso bills in appellant's pocket and the blood smeared on his clothes are two vital chains of
circumstances that undoubtedly bespeak of the robbery with homicide appellant committed.

The lower court erred not in giving full weight and credence to the testimonies of the prosecution
witnesses particularly identifying appellant as the person last seen in the company of the victim
before the latter was found dead. The testimonies on record are clear and straightforward. And,
finding the witnesses for the People not ill-motivated to testify against the appellant, the Court
discerns no basis for doubting their credibility. Moreover, it is a jurisprudentially-embedded rule that
11 

on the issue of credibility of witnesses, appellate courts generally do not disturb the findings of the
trial court, considering its singular opportunity to observe the deportment and manner of testifying of
the witnesses.12

Disowning liability for the commission of the crime complained of, appellant theorized that he was in
Maconacon, Isabela, from October 17, 1994 up to December 201 1994. The Court, however, finds
no credibility in the alibi theorized upon by appellant. It bears stressing that for alibi to prosper,
appellant must prove that he was somewhere else when the crime was committed and it was
physically impossible for him to have been at the scene of the crime In the present case of
13 

appellant, he failed to establish the requisite physical impossibility of his presence at the locus
criminis at the approximate time of its commission. Granting arguendo that the appellant really went
to Maconacon, Isabela on October 17, 1994, it was easy for him to go back by plane or by boat to
Cauayan, Isabela, on or before October 27, 1994.

Furthermore, and more importantly, the defense of alibi of appellant cannot prevail over his positive
identification by the prosecution witnesses. 14

Though not alleged in the Information, the generic aggravating circumstances of fraud and craft were
properly appreciated by the trial court. Craft involves intellectual trickery and cunning on the part of
15 

the offender. When there is a direct inducement by insidious words or machinations, fraud is
present. By saying that he would accompany the victim to see the cows which the latter intended to
16 

buy, appellant was able to lure the victim to go with him.

Under Article 294 of the Revised Penal Code, the penalty for Robbery with Homicide is reclusion
perpetua to death Applying Article 63 of the same Code, the imposable penalty under the premises
is death in view of the presence of the aggravating circumstances of craft and fraud and the absence
of any mitigating circumstance.

Four members of the Court are steadfast in their adherence to the separate opinion expressed
in People vs. Echegaray that Republic Act No. 7659 is unconstitutional insofar as it prescribes the
death penalty. However, they bow to the majority opinion that the aforesaid law is constitutional and
therefore, the penalty prescribe thereunder has to be imposed.
WHEREFORE, the Decision dated October 7, 1996 of the Regional Trial Court, Branch 20,
Cauayan, Isabela, in Criminal Case No. 20-738, finding appellant VIVENCIO LABUGUEN @
DENCIO guilty beyond reasonable doubt of the crime of robbery with homicide, and imposing upon
him the penalty of DEATH, is AFFIRMED.

In accordance with Section 25 of Republic Act No 7659 amending Article 83 of the Revised Penal
Code, upon finality of this decision, let the records of the case be forwarded to the Office of the
President for the possible exercise of the pardoning power. Costs against the appellant.  1âwphi1.nêt

SO ORDERED.

G.R. No. 106152 April 19, 1994

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FORDITO

RUELAN Y VILLABER, accused-appellant

The Solicitor General for plaintiff-appellee. chanrobles virtual law library

IBP Legal Aid Office for accused-appellant.

KAPUNAN, J.:

This is an appeal from the decision of the Regional Trial Court of

Davao City, Branch 13, convicting the accused, Fordito Ruelan, of
the crime of MURDER and imposing on him the penalty of "life
imprisonment." chanrobles virtual law library

The information reads:

That on or about August 18, 1988, in the City of Davao, Philippines,

and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to kill, with treachery and evident
premeditation, using an axe did then and there willfully, (sic)
unlawfully and feloniously attack and assault Rosa Jardiel, inflicting
a hack wound on the head and forehead of the victim, which caused
her death, to the damage of the heirs of the victim.

Contrary to law. 1 chanrobles virtual law library

Upon arraignment on November 7, 1988, the accused assisted by

counsel, pleaded "NOT GUILTY." Trial on the merits ensued and a
decision was subsequently rendered on August 16, 1991, the
dispositive portion of which reads:
WHEREFORE, finding the accused guilty as charged, he is hereby
sentenced to suffer imprisonment for life, and to indemnify the heirs
of the victim in the amount of P200,000.00.

SO ORDERED. 2 chanrobles virtual law library

The facts established by prosecution's evidence are summarized in

the People's brief as follows:

On August 4, 1988, Spouses Ricardo and Rosa Jardiel hired

appellant as a store helper at their store located in Bankerohan
Public Market, Davao City (TSN, January 24, 1989, p. 3). Appellant
helped Jardiel spouses in selling and delivering rice to various
customers. He stayed in the couple's residence but he had a
separate quarters for sleeping. chanroblesvirtualawlibrary chanrobles virtual law library

On August 18, 1988, at around 4:00 a.m., Ricardo Jardiel was

aroused by the closing of the bedroom door and he saw his wife
Rosa Jardiel leaving his room. Ricardo Jardiel stood up and followed
his wife who went towards the gate of the house. Rosa Jardiel was
joined by appellant since they would open the store in Bankerohan
Public Market (Exhibit "G"; TSN, January 24, 1989, p. 4). Rosa
Jardiel talked to appellant and ordered him to bring an axe which
would be used in repairing some fixtures in the store. Appellant
followed her order and took an axe and sack (TSN, February 5,
1990, p. 11). When they were about to leave the premises, Rosa
Jardiel's house dog got loose and went out towards the street. Rosa
Jardiel got angry and scolded appellant while she walked ahead of
him along Tulip Drive going to McArthur Highway (ibid. p. 5).
Appellant pleaded Rosa Jardiel to stop berating him but Rosa Jardiel
did not heed to his request. Appellant got fed up and with the use of
his axe, he struck Rosa Jardiel behind her right ear causing her to
fall face down. Thereafter, appellant dragged Rosa Jardiel to a
grassy portion at the side of the street and then immediately left
the place (Exhibit G). chanroblesvirtualawlibrary chanrobles virtual law library

At around 5:00 o'clock a.m., the Talomo Patrol Station received a

report from Metrodiscom Central that an incident occurred in Tulip
Drive, Matina (TSN, September 25, 1989, p. 2). Lagmay and
Zozobrado with four (4) other policemen were dispatched to
investigate the incident. When the group arrived at the scene, they
saw the lifeless body of Rosa Jardiel lying on the grass beside the
street. Three (3) to five (5) meters away from the body of the
victim, the group recovered an axe and a sack with blood stains.
library
chanroblesvirtualawlibrary chanrobles virtual law

After the investigation, the group proceeded to the residence of the

victim about three hundred (300) meters away from the scene of
the crime. They found out that the steel gate of the Jardiel
residence had blood stains on the upper portion as well as on its
handle (TSN, September 25, 1989, pp. 3, 9). Afterwards, the group
went towards appellant's quarters but appellant was not around.
Except for appellant's yellow t-shirt with blood stains, the group
noticed that appellant's personal belongings were missing. chanroblesvirtualawlibrary chanrobles virtual law library

On the same day, at around 9:30 a.m., Dr. Jose Ladrido of the
Office of City Health conducted an autopsy of the cadaver of the
victim (TSN, April 17, 1989, p. 3). Dr. Ladrido's Medico-legal
Necropsy Report shows that the victim suffered lacerated wounds
on the left eyebrow and hack wound behind the right ear that
fractured the victim's skull (ibid  p. 4). Dr. Ladrido stressed that the
victim was first struck behind the right ear that caused her to fall
face down. And due to victim's fall, her head hit the pavement
causing lacerated wound on her left eyebrow. Dr. Ladrido further
testified that the assailant could have used a heavy sharp-edge
instrument similar to an axe (ibid. p. 6). chanroblesvirtualawlibrary chanrobles virtual law library

On August 20, 1988, the Talomo Police Station received a report

from Pfc. Gumilang of Kiblawan Police Station that appellant had
already surrendered. Immediately Adonis Zozobrado, Lagmay and
Boiser were dispatched to bring appellant to the police station (TSN,
September 25, 1989, p. 4) When the policemen arrived at Kiblawan
Police Station, they learned that appellant was in the custody of the
Barangay Captain. They went to the Barangay Captain but the latter
told them that appellant had gone home. The policemen proceeded
to appellant's residence but they could not find appellant. chanroblesvirtualawlibrary chanrobles virtual law library

On August 24, 1988, Pat. Dora of Kiblawan Police Station

accompanied appellant to Talomo Police Station and surrendered
him to its station commander, P/Lt. Reynaldo Obrero. Accordingly,
Obrero placed appellant under the custody of the police station
(TSN, October 16, 1989, p. 4). However, they could not conduct
any investigation because appellant wanted to seek the assistance
of a lawyer (ibid, p. 5). There being no lawyer in the police station,
Obrero, his driver and Lagmay brought appellant to the CLAO at
Rizal Street, Davao City.chanroblesvirtualawlibrary chanrobles virtual law library

At the CLAO, they met Luz Cortez, a lawyer on duty and who was
assigned to assist appellant. Prior to the investigation, Atty. Cortez
conferred with appellant and inquired if he had a counsel of his
choice, and appellant replied in the negative (TSN November 27,
1989, p. 4). Hence, Atty. Cortez acted as appellant's counsel. chanroblesvirtualawlibrary chanrobles virtual law library

Atty. Cortez provided Lagmay with a typewriter as she sat beside

the appellant and in front of Lagmay. Before the first question was
propounded to appellant by Lagmay, Atty. Cortez apprised
appellant, in his own dialect, of his constitutional rights (ibid, TSN,
October 16, 1989, p. 7), that is to say: the right to remain silent
and the right to have a lawyer of his own choice; and the right to be
informed of such rights. Appellant signified that he knew his
constitutional rights and that anything adduced during the
investigation may be used against him in any proceeding (TSN,
November 27, 1989, pp. 4, 6). chanroblesvirtualawlibrary chanrobles virtual law library

Whenever a question was propounded by Lagmay, Atty. Cortez

translated it in appellant's dialect with a concomitant (sic) warning
that he had the right to remain silent. Despite several warnings,
appellant answered all the questions in a straightforward manner.
Appellant's answers were translated and reduced into writing by
Lagmay's translation, she would correct it and give the proper
translation (TSN, November 27, 1989, p. 6). chanroblesvirtualawlibrary chanrobles virtual law library

After the investigation, Lagmay gave the typewritten statements to

Atty. Cortez who examined the statements thoroughly and ordered
her secretary to reproduce another copy. When the copy was
reprinted, Atty. Cortez consulted appellant if he would sign his
declaration admitting his guilt and appellant said "yes" (TSN,
October 16, 1989, p. 8; November 27, 1989, p. 11). Since Atty.
Cortez was convinced that appellant knew his constitutional rights
and his declarations were made of his own free will, she let
appellant sign his extrajudicial confession. Thereafter, Atty. Cortez
signed the sworn statement in the presence of appellant and
Lagmay. 3

The accused-appellant now assigns the following errors:

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT

GUILTY OF THE CRIME CHARGED. chanroblesvirtualawlibrary chanrobles virtual law library

THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED-

APPELLANT TO SUFFER IMPRISONMENT FOR LIFE. chanroblesvirtualawlibrary chanrobles virtual law library

THE COURT ERRED IN GIVING MORE HEIGHT (SIC) ON THE

ALLEGED CONFESSION OF THE ACCUSED WHICH WAS DENIED BY
HIM FOR BEING TAKEN IN VIOLATION OF HIS CONSTITUTIONAL
RIGHTS. 4 chanrobles virtual law library

In assailing his conviction, herein appellant raises the following

issues for review, to wit: (a) whether he can be found guilty beyond
reasonable doubt of the crime charged based on the established
facts, without the alleged written extrajudicial confession; (b)
whether the trial court was correct in appreciating the presence of
the three aggravating circumstances; and (c) whether the
imposition of the penalty of "life imprisonment" by the trial court
was proper. chanroblesvirtualawlibrary chanrobles virtual law library

It is the contention of appellant that his extrajudicial confession is

inadmissible because he was never apprised of his constitutional
rights to remain silent, to counsel, and to be informed of such
rights. He claims that contents of his confession were fabricated and
that he signed the document on the insistence of policeman Martin
Lagmay, Jr. that it would be beneficial to him. He further alleges
that the testimonies of the prosecution witnesses were false and
were only made to cure the defects of his extrajudicial
confession. chanroblesvirtualawlibrary chanrobles virtual law library

The basic thrust, therefore, of appellant's assignment of errors is

the inadmissibility of his extrajudicial confession and the credibility
of the prosecution witnesses. chanroblesvirtualawlibrary chanrobles virtual law library
The contention of appellant that his extrajudicial confession is
inadmissible is untenable. Well-settled is the rule that a confession
is presumed to be voluntary until the contrary is proved and the
burden of proof is upon the person making the confession. 5 In this
case, the presumption has not been overcome. Not only is the
appellant's confession replete with details only he could have
supplied, but the circumstances surrounding its execution belie his
claim.chanroblesvirtualawlibrary chanrobles virtual law library

Atty. Luz Cortez, the CLAO (now PAO) lawyer who assisted the
appellant, testified that before the investigation was conducted, she
informed the appellant of his constitutional was conducted, she
informed the appellant counsel and to be informed of such
rights. 6 In fact, Atty. Cortez even advised the appellant that any
statement given by him in the investigation could be used against
him in any proceeding in court. 7 Despite being informed of these
rights, appellant executed the sworn statement admitting that he
struck the victim, Rosa Jardiel, with an axe behind her right ear.
The contents of the appellant's extrajudicial confession are as
follows:

PRELIMINARY: Mr. Fordito V. Ruelan, you are being informed that

you are now under investigation in connection with the Murder case
wherein you are principally the suspect.  Before we ask you any
question you must understand your legal right not to give
statement if you do not wish to, any thing that you say maybe used
as evidence against you in any proceeding, that you have the right
to a counsel of your own choice, if you cannot afford a lawyer and
you want one, a lawyer will be provided for you to assist you during
investigation. Is this clearly understood by you?

ANSWER: Yes, sir. chanroblesvirtualawlibrary chanrobles virtual law library

QUESTION: Now do you still wish to proved with this

investigation. chanroblesvirtualawlibrary chanrobles virtual law library

ANSWER: Yes, sir.
QUESTION: Having manifested your willingness to give statement in
the presence of Atty. Luz T. Cortez, do you swear to tell the truth in
this investigation?

ANSWER: Yes, sir.

1. Question: Please tell your name, age and other personal

circumstances? chanrobles virtual law library

Answer: I am Fordito Ruelan y Villaber, 19 years old, married,

farmer, elementary graduate, a native of Babak, Samal, on January
16, 1969, and presently residing at Pasig, Kiblawan, Davao del Sur.

2 Q - Before or last three weeks where were you then? chanrobles virtual law library

A - I was working with the residence of Jardiel located at Tulip Drive

Matina, this City, as store assistant. chanroblesvirtualawlibrary chanrobles virtual law library

3. Q - How long have you been working with the Jardiel family? chanrobles virtual law library

A - I just start working with them on August 4, 1988. chanroblesvirtualawlibrary chanrobles virtual law library

4. Q - Do you know of any reason why are you now in this office of
the CLAO? chanrobles virtual law library

A - I have been brought here for investigation, to be assisted by a

CLAO lawyer, after I voluntarily surrendered to the POLICE
authorities in connection with the killing of my employer, Rosa
Jardiel.
chanroblesvirtualawlibrary chanrobles virtual law library

5. Q - Now, do you have any idea about the killing of your

employer?

A - Yes, sir. chanroblesvirtualawlibrary chanrobles virtual law library

6. Q - Who killed your employer?

A - I could have been the one, sir.

7. Q - When and where did the incident occur? chanrobles virtual law library
A - At or about 3:30 A.M. on August 18, 1988 along Tulip Drive,
Matina, this City.

8. Q - Will you please narrate to me the circumstances of the

incident that led to the death of your employer?

A - In that early morning I and Rosa Jardiel were bound for the
store at Bankerohan, this City she told me to bring an axe to do
some hammering in the store. As we came out of the gate the dog
of my employer also went out towards the street. Because of this,
as she usually did in the past, she scolded me and continued to
berate at me while we were on your way to the highway. I
requested her to stop uttering so many things but she kept on. I
got fed up with her scolding and instantly, I struck her with the ax I
was carrying hitting her on the right head, then I dragged her to a
portion at the side of the street and I immediately left the place.

9. Q - Record shows from Talomo Patrol Station Blotter disclosed

that the victim brought along with during the incident a bag
containing a cash money of undetermined amount and one caliber .
32 which was discovered missing. Do you have any idea about the
said losses?chanrobles virtual law library

A - I don't have any idea, chanrobles virtual law library

10. Q - I have nothing to ask from you for the moment, do you
have something to say or add in your statement? chanrobles virtual law library

A - No more, sir. chanroblesvirtualawlibrary chanrobles virtual law library

11. Q - Are you willing to sign this statement of yours freely and
voluntarily without being forced in the presence of your counsel,
Atty. Luz T. Cortez?

A - Yes, sir. 8 (Emphasis ours)

The foregoing narration certainly bespeaks spontaneity and truth,

the details contained therein given could only have been known by
the confessant himself. chanroblesvirtualawlibrary chanrobles virtual law library
Based on the foregoing, there can be no other conclusion than that
Ruelan's extrajudicial statement/confession is admissible in
evidence and that the trial court correctly considered it in
determining the guilt of the appellant. By voluntarily executing his
extrajudicial confession after having been informed by Atty. Luz
Cortez of his constitutional rights, and in the presence of and with
the assistance of said counsel, appellant Ruelan effectively waived
his right to remain silent. chanroblesvirtualawlibrary chanrobles virtual law library

Moreover, we affirm the judgment of conviction by the trial court on

the basis of the testimonies of the witnesses presented by the
prosecution. A trial court's findings of fact carry great weight and
respect for it has the privilege of examining the deportment and
demeanor of witnesses and, therefore, can discern if such witnesses
are telling the truth or not. 9 With the evidence presented in the
proceedings below, we do not see any reason why we should depart
from the aforesaid rule and disturb the trial court's factual
conclusions.chanroblesvirtualawlibrary chanrobles virtual law library

Another point raised by the appellant is that without his

extrajudicial confession, the prosecution has no case against him.
What the prosecution has, he claims, is circumstantial evidence. chanroblesvirtualawlibrary chanrobles virtual law library

Assuming arguendo that the prosecution's evidence is

circumstantial, we find the same sufficient to convict. chanroblesvirtualawlibrary chanrobles virtual law library

Where the conviction of an accused is based on circumstantial

evidence, it is essential for the validity of such conviction that: (a)
there be more than one circumstance; (b) the facts from which the
inferences are derived are proven; and (c) the combination of all
the circumstances is such as to produce a conviction beyond
reasonable doubt. 10 chanrobles virtual law library

In the case at bench, the circumstantial evidence proven by the

prosecution sufficiently satisfies the quantum of proof necessary to
uphold a judgment of conviction. The following circumstances
proven by the prosecution indubitably point to the accused-
appellant as the perpetrator of the crime committed:
1. The fact that the victim was last seen by the victim's husband on
the day she was killed in the company of the accused-appellant
while they were on their way to the market. 11

2. The fact that the accused-appellant was carrying an axe and a

sack while they were walking along Tulip Drive. 12

3. The fact that when the Talomo Patrol Station received a report
that an incident occurred in Tulip Drive, Lagmay and Zozobrado
together with four (4) policemen were dispatched to the scene of
the crime. They saw the lifeless body of the victim. Five (5) meters
away, they recovered an axe and a sack with blood stains. 13

4. The fact that when the aforesaid group proceeded to the house of
the victim, they found blood stains on the upper portion of the gate
as well as on the handle. 14

5. The fact that Dr. Jose Ladrido's Necropsy Report shows that the
victim suffered a lacerated wound on the left eyebrow and a hack
wound behind the right ear, the latter wound having been induced
first. 15

6. The fact that Pat. Dora of the Kiblawan Police Station

accompanied appellant to the Talomo Police Station and
surrendered him to the latter's Station Commander 16 for
investigation.
chanroblesvirtualawlibrary chanrobles virtual law library

Anent the second issue raised, appellant alleges that the trial court
erred in appreciating the three (3) aggravating circumstances of
treachery, abuse of superior strength and evident premeditation.
library
chanroblesvirtualawlibrary chanrobles virtual law

Save only for the aggravating circumstances of abuse of superior

strength, the prosecution failed to prove the other aggravating
circumstances alleged in the information. chanroblesvirtualawlibrary chanrobles virtual law library

In appreciating the qualifying circumstance of treachery, the

following requisites must concur: first, that at the time of the
attack, the victim was not in a position to defend himself; and
second, the offender consciously adopted the particular means,
method and form of attach employed by him. 17 chanrobles virtual law library
From the evidence adduced, the first requisite was proven. Dr.
Ladrido testified that the victim suffered a hack would behind her
right ear that caused her to fall face down. As a consequence
thereof, she suffered another wound on her left eyebrow.
Accordingly, when the victim was attacked by the appellant, she
was not in a position to defend herself. However, the second
requisite was not proven. No evidence was offered to prove that the
appellant made preparations to kill the victim. Records bear out that
it was the victim who ordered the appellant to bring the axe before
they left the house indicating that he had no plan to kill said
victim.chanroblesvirtualawlibrary chanrobles virtual law library

Regarding the qualifying circumstance of evident premeditation, the

prosecution must show (a) the time when the offender determined
to commit the crime; (b) an act manifestly indicating that he had
clung to his determination; and (c) a sufficient lapse of time
between the determination and the execution to allow him to reflect
upon the consequences of his act and to allow his conscience to
overcome the resolution of his will had he desired to hearken to its
warnings. 18 chanrobles virtual law library

Here, the prosecution failed to present evidence when the appellant

determined to kill the victim or any indication that he clung to such
determination. As already mentioned above, appellant did not
intend to nor planned to kill the victim. Hence, there was no
sufficient lapse of time between the determination and execution of
the crime charged so as to allow the appellant to reflect upon the
consequences of his act. chanroblesvirtualawlibrary chanrobles virtual law library

To properly appreciate the aggravating circumstance of abuse of

superior strength, the pr+osecution must prove that the assailant
used purposely excessive force out of proportion to the means of
defense available to the person attacked. 19 In the instant case, the
appellant clearly took advantage of his superior strength as the
victim was an elderly woman, 76 years old, frail and of small build
while the appellant was then only 20 years old, of good stature and
build and was armed with an axe with which to kill the victim. chanroblesvirtualawlibrary chanrobles virtual law library

However, the aggravating circumstance of abuse of superior

strength cannot qualify the killing of the victim and raise it to the
category of murder because the same was not alleged in the
information. The rule in cases like this is clear. A qualifying
circumstance like abuse of superior strength must be pleaded in the
information for if it is not pleaded but proved, it shall only be
considered as a generic aggravating circumstance in the imposition
of the correct penalty. chanroblesvirtualawlibrary chanrobles virtual law library

Accordingly, for failure of the prosecution to prove the qualifying

circumstances of treachery and evident premeditation, appellant
cannot be convicted of the crime of murder. Instead, appellant
should be held liable for the crime of homicide under Article 249 of
the Revised Penal Code which carries a penalty of reclusion
temporal. The aggravating circumstance of abuse of superior
strength is therefore offset by the mitigating circumstance of
voluntary surrender which was admitted by the prosecution. Thus,
applying the Indeterminate Sentence Law, appellant should suffer a
penalty of six (6) 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. chanroblesvirtualawlibrary chanrobles virtual law library

As noted from the dispositive portion of the assailed decision, the

trial court imposed the penalty of "life imprisonment" for the crime
of murder. Evidently, the said court failed to appreciate the
substantial difference between Reclusion Perpetua under the
Revised Penal Code and Life Imprisonment when imposed as a
penalty by special law. These two penalties are different and distinct
from each other. Hence, we would like to reiterate our admonition in
the 
chanrobles virtual law library

case of People vs. Penillos, 20 likewise quoted under Administrative

Circular No. 6-A-92 amending Administrative Circular No. 6-92
dated October 12, 1992 re: the correct application of the penalties
of reclusion perpetua  and life imprisonment, thus:

As noted from the dispositive portion of the challenged decision, the

trial court imposed the penalty of "reclusion perpetua  or life
imprisonment". Evidently, it considered the latter as the English
translation of the former, which is not the case. Both are different
and distinct penalties. In the recent case of People vs. Baguio, this
Court held:
The Code does not prescribe the penalty of "life imprisonment" for
any of the felonies therein defined, that penalty being invariably
imposed for serious offenses penalized not by the Revised Penal
Code but by special laws. Reclusion perpetual entails imprisonment
for at least thirty (30) years after which the convict becomes eligible
for pardon, it also carries with it accessory penalties, namely:
perpetual special disqualification, etc. It is not the same as "life
imprisonment" which, for one thing, does not carry with it any
accessory penalty, and for another, does not appear to have any
definite extent or duration.
chanroblesvirtualawlibrary chanrobles virtual law library

As clearly as 1948, in People vs. Mobe, reiterated in People vs.

Pilones, and in the concurring opinion of the Justice Ramon Aquino
in People vs. Sumadic, this Court already made it clear
that reclusion perpetua, is not the same as imprisonment for life or
life imprisonment. Every judge should take note of the distinction
and this Court expects that, henceforth, no trial judge should
mistake one for the other.

Finally, anent the civil indemnity awarded to the heirs of the victim,
the trial court erred in finding the appellant liable for two hundred
thousand pesos (P200,000.00) because the same has no basis in
fact and in law. Appellant's civil liability must only be limited to
P127,000.00, broken down as follows, to wit:

(a) for the death of the victim P 50,000.00

(b) cash taken from the victim
(TSN, January 24, 1989, p. 8)
Philippine Currency P50,000.00
US Dollars $1000 (1:27) 27,000.00 77,000.00
----- -----

P127,000.00

WHEREFORE, the judgment appealed from is hereby MODIFIED as

follows: (a) appellant is found guilty of the crime of HOMICIDE and
is hereby sentenced to a penalty of six (6) 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; and (b)
appellant is ordered to indemnify the heirs of the victim in the
amount of one hundred twenty seven thousand (P127,000.00)
pesos. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.
[G.R. No. 147649. December 17, 2002.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FRANK LOBRIGAS, MARLITO LOBRIGAS (At

Large) and TEODORICO MANTE (Acquitted), Accused.

FRANK LOBRIGAS, Accused-Appellant.

DECISION

YNARES-SANTIAGO, J.:

This is an appeal from the decision 1 of the Regional Trial Court of Bohol, Branch 3, in Criminal Case No.
9694, convicting accused-appellant Frank Lobrigas of the crime of Murder, sentencing him to suffer the
penalty of reclusion perpetua and ordering him to indemnify the heirs of the victim the amount of
P50,000.00 as actual, exemplary and moral damages. chanrob1es virtua1 1aw 1ibrary

Frank Lobrigas, Marlito Lobrigas and Teodorico Mante were charged under an information which reads: 2

That on or about the 19th day of February, 1996 in the municipality of Loon, province of Bohol, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with intent to kill and without justifiable cause, with treachery by attacking
the victim without affording the latter an opportunity to defend himself and with abuse or taking advantage
of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and box one Felix
Taylaran who was already 76 years old and could no longer put up an effective defense, thereby inflicting
injuries on the vital parts of the body of the said victim which resulted in his death; to the damage and
prejudice of the heirs of the victim.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code as amended by Rep. Act
No. 7659.

Accused-appellant Frank Lobrigas and accused Teodorico Mante were arrested while Marlito Lobrigas, the
brother of accused-appellant, remains at large. Thereafter, Accused-appellant escaped while under detention
in the Municipal Jail of Loon INP. Thus, trial proceeded only as against accused Teodorico Mante. Shortly
after the prosecution rested its case, herein accused-appellant was re-arrested.

Upon arraignment on October 10, 1997, Accused-appellant duly assisted by counsel, pleaded not guilty.
Thereafter, separate trial was conducted against him.

The antecedent facts, as culled from the records, are as follows: chanrob1es virtual 1aw library

The victim Felix Taylaran was a regular farmhand of Castor Guden. On February 19, 1996, he asked for
permission not to work for it was raining and he had to go to the store of Teodorico Mante. At 4:00 p.m.,
Felix returned to Castor Guden’s house with bruises on his face and injuries all over his body. He told Castor
that he was mauled by accused-appellant Frank Lobrigas, Accused Marlito Lobrigas and Teodorico Mante at
the store. Felix spent the night in Castor’s house and left the following morning to go to the seaside house of
Lorie Aguilar, his cousin, to heal his wounds in the saltwater. However, the next day, Felix Taylaran died.

Rosa Taylaran Solarte, daughter of the victim, testified that a day after the mauling, her father came to her
house and told her that he was beaten up by Frank Lobrigas, Marlito Lobrigas and Teodorico Mante. He told
her that he was in pain and felt weak. He then went to the house of Lorie Aguilar apparently to recuperate.

Dr. Tito Miranda of the Municipal Health unit of Loon, Bohol conducted an autopsy on the body of the victim
and concluded that the immediate cause of death was internal hemorrhage caused by the severe beating
and mauling on the chest portion of the victim’s body. chanrob1es virtua1 1aw 1ibrary

On the other hand, Accused-appellant had a different version of the events. He denied the accusation and
alleged that he was asleep at the time the incident took place. He admitted that he was at the store of
Teodorico Mante having a drinking spree with his companions, Dennis Palma, Mario Granderos, Marlito
Lobrigas and Rufo Creta, Jr. They were later joined by the victim, Felix Taylaran. When Felix had too much
to drink, he became rowdy and drew his knife. This was snatched from him by Mario Granderos and turned
over to Mante, who was a barangay councilman. Mante admonished Felix and accused-appellant told him to
go home. When Felix left, Mante and Marlito Lobrigas followed him. Accused-appellant stayed behind and lay
down on a bench outside the store until he fell asleep. He only learned about the mauling incident later from
Mario Granderos.

Accused-appellant likewise denied that he left his house to evade arrest. He claimed that he did not know
about the charge against him. He did not leave his house for one month after the incident upon his father’s
advice, for he might be investigated by the police. He went to Cebu City on March 10, 1996 to work at
Southern Island Hospital. When he came home months later to attend the fiesta celebration on May 15,
1996, it was then that he came to know of the case filed against him. Then on May 18, 1996, he was
arrested and detained at the Municipal Jail of Loon. Two months and four days later, he left his cell as the
door was opened by a co-prisoner and nobody was guarding them at that time.

After trial, the court a quo rendered judgment, the dispositive portion of which reads: chanrob1es virtual 1aw library

WHEREFORE, in view of all the foregoing, the Court is morally convinced and so finds herein accused Frank
Lobrigas GUILTY beyond reasonable doubt of the crime of MURDER, as charged, qualified by the
circumstance of abuse of superior strength as the victim was an old man of seventy six years of age. Thus,
he is hereby sentenced to suffer imprisonment of Reclusion Perpetua in accordance with Art. 248 of the
Revised Penal Code under which the instant case falls. He is further ordered to indemnify the heirs of the
victim the amount of P50,000.00 as actual, exemplary and moral damages put in one.

SO ORDERED. 3

Hence, this appeal based on the following assigned errors: chanrob1es virtual 1aw library

THE TRIAL COURT GRAVELY ERRED WHEN IT CONVICTED THE ACCUSED ANCHORING MAINLY ON THE
EVIDENCE OF FLIGHT;

II

THE TRIAL COURT ERRED WHEN IT SEEKED (sic) ACCUSED CONVICTION ABSENT OF ANY EVIDENCE
TAGGING THE ACCUSED FRANK LOBRIGAS;

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE THAT
POINTS THE ACCUSED FIST BLOW THAT PROXIMATELY CAUSED THE VICTIM’S DEATH.

The issue to be resolved is whether the testimonies of the prosecution witnesses and the evidence of flight
are sufficient to establish the guilt of accused-appellant beyond reasonable doubt.

Accused-appellant contends that there was no direct evidence linking him as one of the assailants. He claims
that while there were ante-mortem declarations made by the victim to the two prosecution witnesses
pointing to him as one of the maulers, the trial court, nevertheless, dismissed them as invalid dying
declaration since they were uttered by the victim not under a consciousness of an impending death. Neither
should such declarations be considered as part of res gestae since the victim was drunk and very mad at
Teodorico Mante for confiscating his knife while he was being attacked by his assailants. Lastly, the evidence
of flight is not sufficient to overcome the constitutional presumption of innocence.
On the other hand, the prosecution argues that: (1) the victim’s declarations naming accused-appellant as
one of the assailants are admissible in evidence as part of the res gestae since they were made immediately
after a startling occurrence; (2) the flight of accused-appellant after the incident and his subsequent escape
from custody were indicative of his guilt; and (3) there was no improper motive on the part of the
prosecution witnesses when they testified against Accused-Appellant.

In order to warrant a conviction, direct evidence is not always required. Conviction can be had on the basis
of circumstantial evidence if the established circumstances constitute an unbroken chain leading to a fair
and reasonable conclusion proving that the appellant is the author of the crime to the exclusion of all others.
4 The rules on evidence and jurisprudence sustain the conviction of an accused through circumstantial
evidence when the following requisites concur: (1) there is more than one circumstance; (2) the inference
must be based on proven facts; and (3) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. 5

The circumstances proved by the prosecution and relied upon by the trial court to convict accused-appellant
clearly satisfied the foregoing requirements. First, the victim, Accused-appellant and others were together
having a drinking spree on the day the mauling happened. Second, the victim declared to Castor Guden
immediately after the incident that accused-appellant and two others mauled him can be considered as part
of the res gestae. Third, the victim told his daughter immediately after the incident that accused-appellant
was one of the persons who mauled him. Fourth, Dr. Tito L. Miranda found that the victim died due to
massive hemorrhage in his thoracic cavity caused by severe beating of his breast. Lastly, Accused-appellant
evaded arrest and subsequently escaped from detention. The foregoing circumstances knitted together
proved accused-appellant’s culpability beyond reasonable doubt. chanrob1es virtua1 1aw 1ibrary

Accused-appellant insists that the statements made by the victim to Castor Guden and Rosa Solarte cannot
be considered dying declarations for they were made not under the consciousness of an impending death.
Neither can they be deemed part of the res gestae because the victim was drunk and mad at Teodoro Mante
for taking away his knife.

We agree in part with Accused-Appellant. Prosecution witness Castor Guden testified on what the victim told
him after the mauling incident, thus: chanrob1es virtual 1aw library

FISCAL: chanrob1es virtual 1aw library

x           x           x

Q. What time did you arrive at your house coming from your farm that afternoon?

A. 4:00 p.m. more or less.

Q. Upon arrival, what did you see?

A. I saw Felix Taylaran whose face was swollen.

Q. Seeing Felix Taylaran’s face swollen, what did you ask him?

A. I asked him and he told me that he was beaten by three persons.

Q. Did he mention the names of that three persons?

A. Yes, Teodorico Mante, Frank Lobrigas and Marlito Lobrigas.

x           x           x

FISCAL: chanrob1es virtual 1aw library

Q. You mentioned about Frank Lobrigas, Marlito Lobrigas and Teodorico Mante, as the names given to you
by Felix Taylaran, are these the same persons whom you identified a while ago?
A. Yes.

Q. What else did you ask of Felix Taylaran?

A. I asked him what was his offense committed why he was beaten?

Q. What was his answer?

A. He said, "I did not know what was the cause but I saw when I passed by the store, they were drinking
and they told me to join them and even bought biscuit and cigarettes." cralaw virtua1aw library

Q. Did Felix Taylaran tell you how he was mauled?

x           x           x

A. By boxing and kicking.

Q. What else, if any, you can remember your topic that afternoon?

A. That was all, but I told him to stay because it was getting dark.

The above testimony of Castor Guden was corroborated by Rosa Solarte, the daughter of the victim, who
testified in this wise: chanrob1es virtual 1aw library

Prosecutor Ligason: chanrob1es virtual 1aw library

x           x           x

Q. Now, do you remember having met your father on February 20, 1996?

A. Yes, Sir.

Q. Where did you meet?

A. In our house, he came to me.

x           x           x

Q. What was the purpose of your father in going to your house on February 20, 1996?

A. He reported to me about his bruises.

Q. What time was that, in the morning or in the afternoon?

A. In the afternoon.

Q. Did you see also bruises in the part of his body?

A. Yes, Sir.

Q. Where?

A. At his face and body.

Q. Did he tell you also who cause the bruises?

A. Yes, Sir.

Q. What did he tell you?

A. Frank Lobrigas, Marlito Lobrigas and Teodorico Mante.

The trial court held that although the foregoing declarations cannot be deemed a dying declaration since
they do not appear to have been made by the declarant under the expectation of a sure and impending
death, the same are nonetheless part of the res gestae. However, only the declaration made to Castor
Guden are admissible in evidence as such.

A declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay
rule when the following requisites concur: (1) the principal act, the res gestae, is a startling occurrence; (2)
the statements were made before the declarant had time to contrive or devise; and (3) the statements must
concern the occurrence in question and its immediately attending circumstances. 6 All these requisites
concur in the case at bar. The principal act, the mauling of the victim, was a startling occurrence. The
declarations were made shortly after the mauling incident while the victim was still under the exciting
influence of the startling occurrence, without any prior opportunity to contrive a story implicating Accused-
Appellant. The declaration concerns the circumstances surrounding the mauling of Felix Taylaran. However,
the declaration made by the victim to his daughter does not satisfy the second requirement of spontaneity
because they were made a day after the incident and the exciting influence of the startling occurrence was
no longer present. Nevertheless, we hold that Rosa Solarte’s testimony on what her father told her
constitutes independent relevant statements distinct from hearsay, and are thus admissible not as to the
veracity thereof, but as proof of the fact that they had been uttered.chanrob1es virtua1 1aw 1ibrary

Under the doctrine of independently relevant statements, only the fact that such statements were made is
relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply, hence, the
statements are admissible as evidence. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the
existence of such a fact. 7

Finally, Accused-appellant’s argument that the trial court’s reliance solely on the evidence of flight cannot
overcome the constitutional presumption of innocence is not well-taken. In criminal law, flight means an act
of evading the course of justice by voluntarily withdrawing oneself to avoid arrest or detention or the
institution or continuance of criminal proceedings. The unexplained flight of the accused person may, as a
general rule, be taken as evidence having tendency to establish his guilt. 8

In the case at bar, not only did accused-appellant evade arrest when he went to Cebu under the pretext that
he was going to work at Southern Island Hospital, but justice was further frustrated when he escaped from
detention with the flimsy excuse that no one was guarding them. These two instances of flight by accused-
appellant, taken together with the other circumstances established by the prosecution, support the trial
court’s finding of accused-appellant’s guilt beyond reasonable doubt. Courts go by the biblical truism that
"the wicked flee when no man pursueth but the righteous are as bold as a lion." 9

However, we do not agree with the trial court that the crime committed was murder qualified by the
aggravating circumstance of abuse of superior strength. To appreciate abuse of superior strength, there
must be a deliberate intent on the part of the malefactors to take advantage of their greater number. They
must have notoriously selected and made use of superior strength in the commission of the crime. To take
advantage of superior strength is to use excessive force that is out of proportion to the means for self-
defense available to the person attacked; thus, the prosecution must clearly show the offenders’ deliberate
intent to do so. 10

There was no clear indication in this case that the accused-appellant and his companions purposely used
their joint efforts to consummate the crime. Consequently, the crime committed by accused-appellant was
only homicide.

The penalty for homicide is reclusion temporal. There being no aggravating or mitigating circumstance, the
same shall be imposed in its medium period — from fourteen (14) years, eight (8) months and one (1) day
to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, Accused-appellant
shall be entitled to a minimum term to be taken from the penalty next lower, prision mayor — from six (6)
years and one (1) day to twelve (12) years. 11

The trial court awarded P50,000.00 as cumulated actual, exemplary and moral damages. We cannot award
actual damages considering that the expenses which the heirs allegedly incurred were not substantiated by
evidence other than the sole testimony of the Rosa Solarte. The award of actual damages cannot rest on the
bare allegation of the heirs of the victim. Failure to substantiate such claim negates the award for actual
damage. 12 The award of exemplary damages must likewise be deleted considering the absence of any
aggravating circumstance. Thus, the heirs of Felix Taylaran are only entitled to P50,000.00 as moral
damages, which needs no proof other than the fact of death of the victim. 13

WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of Bohol, Branch 3, in
Criminal Case No. 9694, is MODIFIED. Accused-appellant Frank Lobrigas is found GUILTY beyond reasonable
doubt of Homicide for the death of Felix Taylaran and is sentenced to suffer the indeterminate penalty of
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. Accused-appellant is ORDERED to pay the heirs of the
victim moral damages in the amount of P50,000.00 and to pay the cost. The awards of actual and
exemplary damages are DELETED for lack of factual and legal basis. chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

G.R. No. 139330               February 6, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGELIO SANSAET y SANTOJALA, SILVERIO SANSAET y SANTOJALA, and LEOPOLDO
SANSAET y SANTOJALA, accused-appellants.

DECISION

PARDO, J.:

The combination of liquor, hot heads and a bad joke was the dangerous concoction that led to the
unfortunate death of Uldarico de Castro.

The Case

Silverio Sansaet y Santojala and Leopoldo Sansaet y Santojala, appeals from the decision of the 1 

Regional Trial Court Antique, Branch 11, San Jose, finding them guilty beyond reasonable doubt of
murder, and sentencing each of them to suffer the penalty of reclusion perpetua and to pay the
widow of Uldarico de Castro the sum of P21,000.00 as indemnity for funeral expenses, P50,000.00
as indemnity for death and another P50,000.00 as moral damages.

In an Information dated January 24, 1990, filed with the Regional Trial Court, Antique, San Jose,
2 

Provincial Prosecutor Leopoldo O. Villavert charged accused with murder, as follows:

"That on or about the 25th day of June 1989, in the Municipality of Tobias Fornier, Province of
Antique, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-
named accused being then armed with bolos and a sickle, conspiring, confederating and mutually
helping one another, with intent to kill and taking advantage of superior strength, did then and there,
willfully and unlawfully and feloniously, attack, assault and hack with said bolos and sickle one
Uldarico de Castro thereby inflicting multiple wounds on the different parts of his body which caused
his death shortly thereafter."

Upon arraignment on April 24, 1990, the accused assisted by counsel pleaded not guilty. 3

After trial, on May 21, 1997, the trial court rendered a decision, the dispositive portion of which reads
as follows:
"WHEREFORE, in view of the foregoing pronouncements, judgment is hereby rendered finding the
accused Silverio Sansaet y Santolaja and Leopoldo Sansaet y Santojala guilty beyond reasonable
doubt of the felony of murder as defined and punished under Article 248 of the Revised Penal Code
and, accordingly: (a) sentencing each one of the aforenamed accused to a penalty of imprisonment
of reclusion perpetua and the accessory penalties inherent thereto; (b) ordering both of the
aforementioned accused to pay Teresita de Castro, widow of Uldarico de Castro the sum of
P50,000.00 as indemnity for his death; the sum of P21,000.00 as indemnity for funeral expenses;
the sum of P50,000.00 as indemnity for moral damages; and cost." 4

Hence, this appeal. 5

The Facts

As established by the evidence of the prosecution, the facts are:

"At around 5:30 in the afternoon of June 25, 1989, at a hut owned by Marcelo Tumaob at Barangay
Igtugas, Tobias Fornier, Antique, about sixteen (16) people were drinking "tuba" with "pulutan" as
they have just finished working the rice field. They were Benedicto Sansaet, Gonzalo Sansaet,
Mariano Sansaet, Germinio Sansaet, Jovito Sansaet, Uldarico de Castro, Federico Satojate, Melito
Mondragon, Maximo Mondragon, Benedicto Naparato, Nestor Sacajada, Rogelio Sansaet, Silverio
Sansaet, Leopoldo Sansaet and the latter’s wife Lita and their two (2) children Joey and Resty. As
they were engaging in merrymaking while drinking, a joke about a long penis cropped up. Leopoldo
claimed Silverio had a long penis but Uldarico insisted his friend had longer. Then Leoploldo asked
Uldarico. "why don’t you ask your wife how long is the penis of Vino?" This angered Uldarico who
countered why Leopoldo had to involve his wife.

"There were verbal exchanges between the two. Thereafter, Rogelio accosted Uldarico saying "why,
are you brave? Go downstairs." Rogelio then unsheathed his bolo and went downstairs, whereas
Uldarico also got his bolo and went downstairs. The two then started hacking each other. Uldarico
was hit on the base of his ear and Rogelio on the bridge of his nose. Silverio and Leopoldo then
positioned themselves behind Uldarico and hacked and hit the latter just above the nape and on the
right shoulder. Uldarico retaliated with a hack blow wounding Silverio at the left forearm. Then
Rogelio hacked Uldarico a second time. The latter raised his hand to parry the blow but was severed
in the process, fell to the ground and rolled towards the river. Leopoldo and Rogelio followed and
continued on hacking and hitting Uldarico on different parts of his body. Leopoldo then told Silverio,
"To, we will just kill him." His wife restrained Silverio. Not satisfied, Leopoldo and Rogelio dragged
Uldarico towards the river and there they each twice hacked Uldarico. Afterwards, Leopoldo said
"To, he is already dead." The three brothers then left. Jovito Sansaet and Herminio Mondragon went
to the Barangay Captain and reported the incident.

"That evening the three Sansaet brothers surrendered to the police of Tobias Fornier. Rogelio and
Leopoldo Sansaet also surrendered their respective bolos." 6

The Issues

1. Whether the trial court erred in giving full weight and credit to the testimony of prosecution
witness Herminio Mondragon, a close relative of the victim, Uldarico de Castro.

2. Whether the trial court erred in rejecting the evidence of the accused. 7

The Court’s Ruling
We sustain the conviction of the accused, not of murder but of homicide.

"Somewhere along the painstaking review of the evidence on record, one version rings the
semblance of truth, not necessarily because it is the absolute truth, but simply because it is the best
approximation of the truth based on the declarations of witnesses as corroborated by material
evidence. Perforce, the other version must be rejected. Truth and falsehood, it has been well said,
are not always opposed to each other like black and white, but oftentimes, and by design, are made
to resemble each other so as to be hardly distinguishable." 8

The accused-appellants argued that the judge who wrote the decision did not try the case and hence
was not able to observe first hand the testimonies of the witnesses. Hence, when a question is
raised as to whether to believe the version of the prosecution or that of the defense, Judge Nery G.
Duremdes not having had the opportunity to observe the witnesses’ demeanor and deportment on
the witness stand, and the manner in which they gave their testimonies, can not discern and gauge if
said witnesses were telling the truth. However, we have held in several cases that "the decision of a
judge who did not try the case is not by that reason alone erroneous." The fact that the judge who
9 

tried the case was different from the judge who penned the decision does not in any way taint the
same. Indeed, "the efficacy of a decision is not necessarily impaired by the fact that its writer only
took over from a colleague who had earlier presided at the trial, unless there is showing of grave
abuse of discretion in the factual findings reached by him." "Moreover, a judge who was not present
10 

during the trial can rely on the transcript of stenographic notes taken during the trial as basis of his
decision. Such reliance does not violate substantive and procedural due process of law." 11

We have held in a long list of cases that "[M]mere relationship of a witness to the victim does not
automatically impair his credibility and render his testimony less worthy of credence where no
improper motive can be ascribed to him for testifying. Rather, the witness’ relationship to the victim,
far from rendering his testimony biased, would even make it more credible as it would be unnatural
for a relative who is interested in seeking justice for the deceased to accuse somebody other than
the real culprit."
12

The accused-appellants harped on the fact that Herminio Mondragon did not report or tell anyone
what he saw and waited for a long period of time before revealing that he saw the killing of Uldarico
de Castro. "We do not find anything wrong with the witnesses’ failure to talk to the police
immediately after the incident. It is not uncommon for witnesses to delay or vacillate in disclosing the
identity of the offender after the startling occurrence for fear of reprisals. The natural reluctance of
witnesses to get involved in a criminal case and to provide information to the authorities is a matter
of judicial notice. Absent any showing that these witnesses were actuated by improper motives, their
testimonies deserve full faith and credit."
13

Time and time again, we have ruled that denial like alibi is the weakest of all defenses, because it is
easy to concoct and difficult to disprove. Furthermore, it cannot prevail over the positive and
unequivocal identification of appellant by the offended party and other witnesses. "Categorical and
consistent positive identification, absent any showing of ill motive on the part of the eyewitness
testifying on the matter, prevails over the appellants’ defense of denial and alibi. In this case, there
was no showing of any improper motive on the part of the witnesses to testify falsely against the
three accused or to falsely implicate them in the commission of the crime. Hence, the logical
conclusion is that no such improper motive exists and that their testimony is worthy of full faith and
credence. Unless substantiated by clear and convincing proof, such defense is negative, self-
serving, and undeserving of any weight in law." 14

However, the prosecution has not sufficiently proved the qualifying circumstance of abuse of
superior strength alleged in the information. "Mere superiority in number, even assuming it to be a
fact, would not necessarily indicate the attendance of abuse of superior strength. The prosecution
should still prove that the assailants purposely used excessive force out of proportion to the means
of defense available to the persons attacked." 15

"Finally, to appreciate the qualifying circumstance of abuse of superior strength, what should be
considered is whether the aggressors took advantage of their combined strength in order to
consummate the offense.  To take advantage of superior strength means to purposely use
1âwphi1

excessive force out of proportion to the means available to the person attacked to defend
himself." In the case at bar, the victim Uldarico de Castro was the one who picked a fight with the
16 

accused-appellants because he did not like the joke by one of the accused-appellants. There was no
evidence to show that the accused-appellants purposely sought and took advantage of their number
to subdue the victim.1âwphi1

Consequently, we rule that the prosecution failed to prove that the accused-appellants took
advantage of their superior strength. Hence, the offense committed is homicide, not murder. 17

The Fallo

WHEREFORE, the Court SETS ASIDE the decision of the Regional Trial Court, Antique, Branch 11,
at San Jose.

IN LIEU THEREOF, the Court finds accused-appellants Silverio Sansaet y Santojala and Leopoldo
Sansaet y Santojala guilty beyond reasonable doubt of homicide, defined and penalized under
Article 249, Revised Penal Code, and in the absence of any modifying circumstance, sentences
each of them to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, as maximum, to pay the heirs of the
deceased the amount of fifty thousand (P50,000.00) pesos as civil indemnity, twenty-one thousand
(P21,000.00) pesos as funeral expenses, and fifty thousand (P50,000.00) pesos as moral damages,
and costs.

SO ORDERED.

G.R. Nos. 148145-46             July 5, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
FELIX VENTURA y QUINDOY and ARANTE FLORES y VENTURA, appellants.

DECISION

PER CURIAM:

On automatic appeal before this Court is the Decision of the Regional Trial Court of Negros
1 

Occidental, Branch 50, finding appellants Felix Ventura (Ventura) and Arante Flores (Flores) guilty
beyond reasonable doubt of Murder in Criminal Case No. 00-20692 and Attempted Murder in
Criminal Case No. 00-20693.

The accusatory portion of the Information for Murder in Criminal Case No. 00-20692 reads as
follows:

That on or about the 23rd day of February, 2000 in the City of Bacolod, Philippines, and
within the jurisdiction of this Honorable Court, the herein accused, conspiring, confederating
and acting in concert, without any justifiable cause or motive, with intent to kill and by means
of treachery and evident premeditation, accused Felix Q. Ventura armed with a .38 Caliber
Home-made Revolver and Arante V. Flores armed with a bladed weapon, and by taking
advantage of their superior strength, did, then and there willfully, unlawfully and feloniously
assault, attack and stab with bladed weapon one Aileen Bocateja y Peruelo, thereby inflicting
upon the person of the latter the following wounds, to wit:

-       Cardio respiratory arrest

-       Hemothorax

-       stab wounds

which wounds were the direct and immediate cause of the death of said victim, to the
damage and prejudice of the heirs of the latter.

That the crime was committed with the aggravating circumstances of dwelling, night
time and with the use of an unlicensed firearm.

Act contrary to law. (Emphasis supplied)

2 

The accusatory portion of the Information for Frustrated Murder in Criminal Case No. 00-20693
reads as follows:

That on or about the 23rd day of February, 2000 in the City of Bacolod, Philippines, and
within the jurisdiction of this Honorable Court, the herein accused, conspiring,
confederating and mutually helping each other, without any justifiable cause or motive,
accused Felix Q. Ventura armed with a .38 Caliber Homemade Revolver and Arante Flores y
Ventura armed with a bladed weapon, with intent to kill and by means of treachery and
evident premeditation, and abuse of superior strength, did, then and there willfully,
unlawfully and feloniously assault, attack and stab with said bladed weapon one Jaime
Bocateja, thereby causing upon of the latter the following wounds, to wit:

-       multiple stab wounds

-       #1 Posterior axillary area right

-       #2 Posterior axillary area left with minimal hemothorax

-       lacerated wound right parietal area

OPERATION PERFORMED:
 -       Exploration of wound right parietal for removal of foreign body

thus performing all the acts of execution which would have produced the crime of murder as
a consequence, but which nevertheless, did not produce it by reason of some cause or
accident independent of the will of the perpetrator, that is, due to the timely and able medical
assistance, which saved the life of the victim and the victim was able to escape.

That the crime was committed with the aggravating circumstances of dwelling, night
time, and with the use of an unlicensed firearm.

Act contrary to law. (Emphasis supplied)

3 

When arraigned, appellants pleaded not guilty to both charges. The two criminal cases were
4 

consolidated following which they were jointly tried.

5

The spouses Jaime and Aileen Bocateja were, in the early hours of February 23, 2000, fast asleep in
their room on the ground floor of their two-storey house at Alunan-Yulo in Bacolod City, Negros
Occidental. The room had a glass wall with a glass sliding door which was closed but not locked.
The kitchen light was open, as was the light in the adjoining room where the couple's young children,
Jummylin and Janine, were sleeping. Their niece, Aireen Bocateja, and Jaime's elder daughter,
Rizza Mae, were asleep in their rooms on the second floor. 6

At around 2:00 a.m., Jaime was roused from his sleep by appellant Ventura who, together with his
7 

nephew appellant Flores, had stealthily entered the couple's room after they gained entry into the
house by cutting a hole in the kitchen door.

As established by the testimonial and object evidence for the prosecution, the following transpired
thereafter:

Appellant Ventura pointed a revolver at Jaime's face, announced a hold-up, hit Jaime on the head
with the gun and asked him for his keys. 8

When appellant Ventura struck him again, Jaime called out for help and tried to grab the revolver.
The two men then struggled for possession of the gun. As Jaime almost succeeded in wresting
possession of the gun from him, appellant Flores shouted to appellant Ventura to stab Jaime. Using
the knife he

was carrying, appellant Flores stabbed Jaime three times. Jaime thereupon released the gun, threw
a nearby plastic stool at the jalousy glass window causing it to break and cried out for help.
9

In the meantime, Aileen who had been awakened, began shouting for help as she saw her husband
in mortal danger. Appellant Flores stabbed her, however, with his knife, and although Aileen tried to
defend herself with an electric cord, appellant Flores continued stabbing her. 10

Awakened by the commotion, Aireen descended the stairs and saw the knife wielding appellant
Flores whom she recognized as a former employee of the butcher shop of the Bocataje spouses.
Pleading with appellant Flores not to harm her, Aireen ran back upstairs into Rizza Mae's room, and
the two called to their neighbors for help.
11

Appellants Ventura and Flores thereupon fled the Bocateja house, bringing nothing with them.
12  13
Soon members of the Central Investigation Unit (CIU) of the Philippine National Police (PNP) arrived
in response to a flash report. Some of the police officers took the spouses to the Western Visayas
14 

Regional Hospital, while other elements of the CIU team intercepted appellants Ventura and Flores
15 

who were being pursued by neighbors of the spouses at the corner of Araneta-Yulo. Recovered from
appellant Ventura was a .38 caliber revolver with five (5) live bullets, and from appellant Flores a
blood stained knife measuring 14½ inches from tip to handle with a 10-inch blade.
16  17

Shortly after their arrest, appellants were interviewed by reporters from Bombo Radio to whom they
admitted responsibility for stabbing Jaime and Aileen. In response to questions from the reporters,
appellant Ventura explained that he suspected his wife was carrying on an affair with Jaime. 18

In the ocular inspection of the Bocateja residence, the CIU team found the spouses' room in
disarray, with some cabinets opened and blood splattered all over the floor, the bed and the
ceiling. 
19

Aileen eventually died in the hospital on the same day of the commission of the crime. Dr. Luis
20 

Gamboa, City Health Officer of Bacolod City who conducted the autopsy of her body, found that she
suffered a hack wound on her face and four stab wounds on her body, three at the chest and one at
the back of the right shoulder, all caused by a sharp bladed instrument, such as the knife recovered
from appellant Flores. One of the stab wounds penetrated Aileen's chest near the left nipple, the
intercoastal space and the middle of her right lung causing internal hemorrhage and ultimately
resulting in her death. 21

Jaime who was hospitalized for a total of six days, was treated by Dr. Jose Jocson, who certified
22 

that he sustained the following non-lethal injuries:  23

Multiple Stab Wounds

#1 Posterior Axillary Area Right

#2 Posterior Axillary Area Left with Minimal Hemothorax

Lacerated Wound Right Parietal Area 24

From the evidence for the defense consisting of the testimonies of appellants Ventura and Flores
and Primitiva Empirado, the following version is culled:

Four days after February 13, 2000 when appellant Ventura arrived in Negros Occidental from Manila
where he had been working as a security guard, he noticed that his wife, Johanna, who had
25 

previously been employed as a house helper of the Bocateja spouses, was wearing a new ring.
When he confronted her, she said that it came from Jaime who was courting her, and that it was
because Jaime's wife, Aileen, had discovered their illicit relationship that she had been dismissed
from the Bocateja household. Incensed at the revelation, he slapped his wife whereupon she left the
conjugal home. 26

On February 22, 2000, Johanna returned to the conjugal home in Barangay Alegria, Municipality of
Murcia, Negros Occidental to get her things. After a verbal confrontation with her husband, she left
to find work in Kabankalan, Negros Occidental. This was the last time that Johanna and appellant
Ventura saw each other. 27
That same day, appellant Flores visited his uncle-appellant Ventura. The two spoke at length and
appellant Flores, who had previously worked for a day at the meat shop of the Bocateja spouses,
confirmed that Johanna and Jaime were having an affair. 28

Since appellant Flores knew where the Bocateja spouses lived, appellant Ventura asked him to go
with him to their residence so he could confront Jaime about his affair with Johanna. 29

Appellants, armed with an unlicensed revolver and a knife, thus repaired to the Bocateja residence
still on the same day, February 22, 2000, arriving there at around 11:00 p.m. They were not able to
immediately enter the premises, however. After boring a hole through the kitchen door with the knife,
appellants entered the Bocateja residence at 2:00 a.m. of the next day, February 23, 2000. 30

Once inside, appellants entered the room of the Bocateja spouses through the unlocked sliding door.
Appellant Ventura woke Jaime up, confronted him and told him to stop his relationship with Johanna.
Jaime fought back, and he and appellant Ventura grappled for possession of the latter's gun. 31

Soon after, Aileen woke up, screamed for help, and began throwing things at appellant Flores whom
she attempted to strangle with an electrical extension cord. Unable to breathe, appellant Ventura
stabbed Aileen twice with his knife. And seeing that Jaime had wrested control of the gun from
appellant Ventura, appellant Flores also stabbed Jaime. 32

Since appellants had not intended to kill Aileen or stab Jaime, they fled in the course of which Jaime
began shooting at them with a 9 mm pistol. Appellants were eventually intercepted by policemen
who placed them under arrest. 33

Interviewed by the media after his arrest, appellant Ventura stressed that he just wanted to confront
Jaime about the latter's relationship with appellant's wife, Johanna.34

By the appealed Decision of December 15, 2000, the trial court disposed as follows:

FOR ALL THE FOREGOING, the Court finds the accused FELIX VENTURA y QUINDOY
and ARANTE FLORES y VENTURA GUILTY beyond reasonable doubt as Principals by
Direct Participation of the crime of ATTEMPTED MURDER as alleged in Criminal
Information No. 00-20693 with the aggravating circumstances of evident
premeditation, dwelling, nighttime and the breaking of door to gain entrance to the
house and with no mitigating circumstance. Accordingly, they are sentenced to suffer the
penalty of Reclusion Temporal in its maximum period. Applying the Indeterminate Sentence
Law, they shall serve a prison term of from Eight (8) years of Prision Mayor as Minimum to
Eighteen (18) years of Reclusion Temporal as Maximum.

The Court also finds the two (2) above-named accused GUILTY as Principal[s] by Direct
participation for the crime of Murder as alleged in Criminal Information No. 00-
20692 qualified by abuse of superior strength. The aggravating circumstances of
dwelling, nighttime and by the breaking of a door are present in the commission of the
crime. There is no mitigating circumstance. The accused, therefore, are meted the Supreme
penalty of DEATH.

By way of civil liability, the accused are solidarily ordered to pay the heirs of Aileen Bocoteja
the sum of P50,000.00 as death indemnity. The accused are likewise held solidarily liable to
pay Jaime Bocateja the sum of P100,000.00 as moral damages and the sum of P20,000.00
as exemplary damages. (Emphasis supplied)
35 
In their Brief, appellants contend that the trial court erred (1) in convicting them despite the failure of
36 

the prosecution to prove their guilt beyond reasonable doubt; (2) in considering abuse of superior
strength as a qualifying circumstance in Criminal Case No. 00-20892; (3) in considering

evident premeditation as a qualifying circumstance in Criminal Case No. 00-20893; and (4) in
considering the aggravating circumstances of breaking of door and nocturnity in both cases. 37

Appellants argue that, at most, they can only be convicted of attempted homicide for the stabbing of
Jaime and homicide for the fatal stabbing of Aileen. 38

From a considered review of the records and applicable jurisprudence, the instant appeal fails.

The essence of evident premeditation is that the execution of the criminal act must be preceded by
cool thought and reflection upon the resolution to carry out the criminal intent during a space of time
sufficient to arrive at a calm judgment. For it to be appreciated, the following must be proven beyond
39 

reasonable doubt: (1) the time when the accused determined to commit the crime; (2) an act
manifestly indicating that the accused clung to his determination; and (3) sufficient lapse of time
between such determination and execution to allow him to reflect upon the circumstances of his act. 40

By appellants' argument, even if appellant Ventura became jealous when he learned of the illicit
affair between his wife and Jaime, it is not, by itself, sufficient proof that he determined to kill the
latter; that with Jaime's testimony that appellant had announced a "hold-up," they, at most, intended
to rob, but not kill the spouses; that their only purpose was to confront Jaime regarding his supposed
affair with appellant Ventura's wife, Johanna; and that if they had truly intended to kill Jaime, then
appellant Ventura would not have bothered to awaken him, but would just have shot him in his sleep.

These assertions run counter to the established facts and are debunked by appellants' own
admissions.

Appellants admittedly arrived at the Bocateja residence at 11:00 p.m. and surreptitiously entered
therein at 2:00 a.m. At that time, the surrounding premises were decidedly dark, and all the
members of the household were fast asleep. Armed with a gun and a knife, they proceeded directly
to the bedroom of the spouses, where appellant Ventura woke up Jaime. These actuations are not of
those seeking parley, but instead betray an unmistakable intention to kill, not merely confront, Jaime.

Indeed, when pressed during cross-examination to explain why he chose to "confront" Jaime under
the foregoing circumstances, appellant Ventura became evasive and did not give a clear answer:

Q       Mr. Witness, you said that your purpose in going to the house of Jaime was only to
confront him. My question is, why is it that you went there at 11:00 o'clock in the evening
and not in the morning so that you will have all the opportunity to confront him?

A       Because at that time, I was not on my proper frame of mind.

Q       Why, is it not a fact that as early as February 17, 2000, you were already told by your
wife that there was that relationship with Jaime Bocateja and your wife?

A       Yes, sir.

Q       Why did you not immediately confront Mr, Bocateja after that day or February
17?
WITNESS:

A       On that day, I don't know Jaime Bocateja.

xxx

ATTY. ORTIZ:

Q       On February 22. So that you did not ask your wife where the place of Jaime
Bocateja was at that time you were by him on February 22, 2000?

A       Johanna did not tell me the place of Jaime Bocateja.

Q       Why did you not ask her where the house is, at that time?

A       What she told me was that, she is working in Bacolod City.

Q       Mr. Witness, you had from February 17 to 22, a number of days to confront Mr.
Jaime Bocateja. Did you not confront your wife or perhaps ask her about the place or
where this Jaime Bocateja was at that time and have the intention to confront him, if
that was really your intention to confront him?

WITNESS:

A       No, I did not ask her because we had a confrontation and the next day, February
17, she left.

Q       Of course, when you arrived at the house of the Bocateja [spouses] at 11:00 o'clock in
the evening, you were armed at that time, is that right, you and your companion, Arante
Flores?

A       Yes, sir.

Q       What was that weapon at that time?

A       .38 caliber revolver.

xxx

ATTY. ORTIZ:

Q       Mr. Witness, if your intention was only to confront Mr. Jaime Bocateja, why is it
that you did not wait or you did not come to that place earlier so that at that time,
Jaime Bocateja was still awake or perhaps waited until the next day?

COURT:

Already answered. He said that he was not at the proper frame of his
mind. (Emphasis supplied)
41 
Cross-examined on the same point, appellant Flores was equally evasive, but eventually revealed
that the timing and method of entry were purposely chosen to avoid detection by either the Bocateja
family or their neighbors:

Q       You arrived in the house of Bocateja at about 11:00 o'clock is that right?

A       Yes, sir.

Q       And your purpose in going to the house of Bocateja was only to confront Jaime
Bocateja about his relationship with Johanna is that right?

A       Yes, sir.

ATTY. ORTIZ:

Q       Why did you wait Mr. Witness why did you and the other accused Felix Ventura
wait for three (3) hours for you to confront him in his house?

WITNESS:

A       Because we were not able to enter the door right away because the door could
not be opened.

Q       My question Mr. Witness, is this you ate your supper at Libertad market at about
8:00 o'clock why did you not go to the house of Jaime Bocateja at 9:00 o'clock
immediately after supper? At that time when the members of the family were yet
awake?A We stayed at Burgos market and then from Burgos to Libertad we only walk
and from Libertad to the house of Bocateja.

ATTY. ORTIZ:

Q       You will admit Mr. Witness at the time you left your place at Brgy. Alegria you
were already armed, is that right?

WITNESS:

A       Yes, sir.

Q       Your uncle Felix Ventura was armed with [a] .38 caliber revolver, is that right?

A       Yes, sir.

Q       And you were also armed with a bladed weapon is that correct?

A       Yes, sir.

Q       Why do you have to bring this weapon Mr. Witness?

A       We brought this weapon just to frighten Jaime Bocateja during [the]
confrontation.
ATTY. ORTIZ:

Q       Are you saying Mr. Witness if your purpose was only to confront him you have
to bring this [sic] weapons?

WITNESS:

A       Yes, sir.

Q       When you arrived at the house of Jaime Bocateja about 11:00 o'clock. . . by the way
when did you arrive at the house of Jaime Bocateja?

A       11:00 in the evening.

Q       Of course you did not anymore knock at the door Mr. Witness?

A       No, sir.

Q       Or you did not also call any member of the family to open [the door for] you, is
that right?

WITNESS:

A       No, sir.

ATTY. ORTIZ:

Q       As a matter of fact you only broke the gate Mr. Witness in order to enter the compound
of the Bocateja family?

A       We scaled over the gate.

Q       And why do you have Mr. Witness to go over the fence and open a hole at the
kitchen for you to confront Mr. Jaime Bocateja if that was your purpose?

A       The purpose of my uncle was just to confront Jaime.

Q       And when you confront, are you saying that you cannot any more knock at the
door, perhaps call any member of the family inside the house?

WITNESS:

A       No, sir.

ATTY. ORTIZ:

Q       Why Mr. Witness, Why?

A       We did not call or knock at the person inside the house because it will make
noise or calls and alarm to the neighbors. (Emphasis and underscoring supplied)
42 
To be sure, all the elements of evident premeditation were clearly established from the lips of
appellants themselves. Thus, on clarificatory questioning by the trial court, appellant Ventura
testified:

COURT:

Q       I recall that you left Murcia [at] 4:00 o'clock. Is that morning or afternoon?

A       I left Murcia at 4:00 o'clock in the afternoon.

Q       4:00 o'clock from Alegria then to Alangilan, then to Bacolod, is that correct?

A       Yes, sir.

Q       From Alangilan to Bacolod, what mode of transportation did you make?

A       From Alegria to Alangilan, we only hiked and then from Alangilan to Bacolod we
took the passenger jeepney.

Q       From Alegria to Alangilan, how long did it take you to walk? How many
kilometers?

A       Four (4) kilometers.

Q       And, I assume that while you were walking, you were talking with Arante Flores,
your nephew, about the plans to go to the house of Jaime Bocateja?

A       Yes, sir.

COURT:

Q       By the way, what did you do at Alangilan?

A       I went there because my clothes were at my sister's house.

Q       So, what time did you arrive in [Bacolod]?

A       We arrived here in [Bacolod] late in the evening.

Q       I assume that you disembarked at Burgos Market?

A       Yes, sir.

Q       And you just walked from Burgos Market to Libertad Baybay to the house of Jaime
Bocateja?

A       Yes, sir.

Q       It took you about thirty (30) [minutes] to one (1) hour, more or less?
 A       More than one (1) hour.

Q       And during this time, you were talking again with Arante Flores [about] the
course of action that you will take once a confrontation takes place with Jaime
Bocateja?

WITNESS:

A       Yes, I asked him the location of 3rd Road since I do not know the house of Jaime
Bocateja.

COURT:

Q       I assume that the front main door of the house was close[d] at that time, correct?

A       Yes, sir.

Q       You scaled that door, the front main door of the gate?

A       Yes, sir, we scaled the gate.

Q       You were not able to open it but you simply scaled, you went over?

A       Yes, sir.

Q       And you said yet, you destroyed the main door of the house. Can you tell the
Court, how did you destroy the main door of the house?

A       No, the kitchen door, sir.

COURT:

Q       How were you able to destroy it?

WITNESS:

A       We used the knife in unlocking the door. We made a hole.

Q       You made a hole and with the use of your hand, you were able to unlock the inside
lock because of the hole?

A       Yes, sir.

Q       And I assume that it took you twenty (20) – thirty (30) minutes to make that hole?

A       Yes, sir. (Emphasis supplied)

43 

The immediately foregoing narration was echoed by appellant Flores who gave the following
testimony on direct examination:
ATTY. JACILDO:

Q       So from Brgy. Alegria where did you proceed?

WITNESS:

A       We proceeded to Brgy. Alangilan.

Q       This Brgy. Alegria how far is it from Brgy. Alangilan?

A       The distance between Brgy. Alegria to Brgy. Alangilan is about three (3) kilometers.

Q       So, what means of transportation did you used in going to Alangilan?

A       We walked in going to Alangilan.

Q       When you arrived at Brgy. Alangilan what did you do?

WITNESS:

A       We went to our aunt's house.

ATTY. JACILDO:

Q       From Alangilan where did you proceed?

A       In Alangilan, we stayed at the house of my aunt and then we proceeded to

Bacolod.

Q       So what time did you arrived [sic] in Bacolod?

A       8:00 o'clock in the evening.

Q       When you arrived in Bacolod, what did you do?

A       We ate our supper at Libertad Market.

Q       After eating your dinner at Libertad, what did you do?

A       After eating our supper, we proceeded to the house of Jaime Bocateja.

ATTY. JACILDO:

Q       What time did you arrived [sic] at the house of Jaime?

WITNESS:

A       11:00 o'clock in the evening.

 Q       When you arrived at the house of Jaime, what did you do?

A       We enter[ed] the gate of their house.

Q       Please continue?

A       Then, we opened the door.

Q       And then?

A       We reach[ed] [the Bocateja residence] at around 11:00 o'clock and we tried to
open the door but we could not open the door immediately. We made a hole so that
we can get in the house. We entered the house at about 2:00 o'clock in the morning
the following day. (Emphasis supplied)
44 

Undoubtedly, the accounts of appellants evince not only their resolve to kill Jaime, but the calm and
methodical manner by which they sought to carry out his murder. As pointed out by the Solicitor
General, unless shown to be customary, appellants' act of arming themselves with a gun and a knife
45 

constitutes direct evidence of a careful and deliberate plan to carry out a killing. Consider the
following ruling of this Court in People v. Samolde:46

As stated earlier, accused-appellant and Armando Andres tried to borrow Cabalin's tear gas
gun. This attempt by the accused-appellant and his co-accused to arm themselves
prior to the commission of the crime constitutes direct evidence that the killing of
Feliciano Nepomuceno had been planned with care and executed with utmost
deliberation. From the time the two agreed to commit the crime to the time of the killing
itself, sufficient time had lapsed for them to desist from their criminal plan had they wanted
to. Instead, they clung to their determination and went ahead with their nefarious plan. x
x  (Emphasis supplied)
47 

From the time appellants left Murcia, Negros Occidental, after they had resolved to go to confront
Jaime, to the time they entered the Bocateja residence in Bacolod City, ten hours had elapsed –
sufficient for appellants to dispassionately reflect on the consequences of their actions and allow for
their conscience and better judgment to overcome the resolution of their will and desist from carrying
out their evil scheme, if only they had desired to hearken to such warnings. In spite of this,
appellants evidently clung to their determination to kill Jaime.

That evident premeditation was established through the testimonies of appellants and not by those
of the prosecution witnesses is of no moment. While appellants could not have been compelled to be
witnesses against themselves, they waived this right by voluntarily taking the witness stand.
48 

Consequently, they were subject to cross-examination on matters covered by their direct

examination. Their admissions before the trial court constitute relevant and competent evidence
49 

which the trial court correctly appreciated against them. 

50

Although he admitted stabbing Jaime, appellant Flores sought to justify his actions by claiming that
he was impelled by the need to prevent Jaime from shooting his uncle, appellant Ventura. This
pretense does not impress.

To successfully claim that he acted in defense of a relative, the accused must prove the concurrence
of the following requisites: (1) unlawful aggression on the part of the person killed or injured; (2)
reasonable necessity of the means employed to prevent or repel the unlawful aggression; and (3)
the person defending the relative had no part in provoking the assailant, should any provocation
have been given by the relative attacked. Of these, the requisite of "unlawful aggression" is primary
51 

and indispensable without which defense of relative, whether complete or otherwise, cannot be
validly invoked. 52

Not one of the foregoing requisites of defense of a relative is present. From all accounts, it was
appellants who initiated the unlawful aggression, and it was the victim Jaime who acted in self
defense. Hence, neither the justifying circumstance of defense of a relative nor the special
53 

mitigating circumstance of incomplete defense of a relative may be appreciated in appellant Flores'

54 

favor.

While appellant Ventura did not directly participate in the stabbing of Jaime, the trial court correctly
held both appellants collectively liable for the attempt on the latter's life since they were shown to
have acted in conspiracy with each other.

There is a conspiracy when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it. Where conspiracy has been adequately proven, as in these
55 

cases, all the conspirators are liable as co-principals regardless of the extent and character of their
participation because, in contemplation of law, the act of one is the act of all. 56

By stabbing Jaime Bocateja pursuant to their pre-conceived plot, appellants commenced the
commission of murder directly by overt acts. Despite their efforts, however, they failed to inflict a
mortal wound on Jaime, hence, their liability only for attempted murder. 57

With respect to the death of Aileen, the trial court found both appellants guilty of murder qualified not
by evident premeditation but by taking advantage of superior strength,  to wit:
58 

The killing of Aileen Bocateja is qualified by the aggravating circumstance of abuse of

superior strength. The accused Arante Flores who delivered the stabbing blow is big
and strong, standing about five feet and six (5'6") inches tall. His weapon was a 14
inch dagger. Aileen Bocateja [stood] only about five (5'0") feet tall. The disparity of
their strength is enormous. (Emphasis supplied)
59 

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. The appreciation of this aggravating
60 

circumstance depends on the age, size and strength of the parties, and is considered whenever
there is a notorious inequality of forces between the victim and the aggressor, assuming a
superiority of strength notoriously advantageous to the aggressor, which is selected or taken
advantage of by him in the commission of the crime. 61

Appellants "agree with the trial court that accused-appellant Arante Flores is taller, and probably
stronger than the victim Aileen Bocateja because of their difference in sex as well as the fact that the
accused appellant Flores was armed at that time x x x." Nevertheless, they argue that Aileen's
62 

death was not attended by abuse of superior strength since: (1) though ultimately unsuccessful, she
was able to put up a defense against appellant Flores; and (2) the prosecution failed to show that
appellant Flores deliberately took advantage of the disparity in their size and sex in order to facilitate
the commission of the crime.

Unlike in treachery, where the victim is not given the opportunity to defend himself or repel the
aggression, taking advantage of superior strength does not mean that the victim was completely
63 

defenseless. Abuse of superiority is determined by the excess of the aggressor's natural strength
over that of the victim, considering the momentary position of both and the employment of means
weakening the defense, although not annulling it. Hence, the fact that Aileen attempted to fend off
64 

the attack on her and her husband by throwing nearby objects, such as an electric cord, at appellant
Flores does not automatically negate the possibility that the latter was able to take advantage of his
superior strength.

On the contrary, this Court in a very long line of cases has consistently held that an attack made by
a man with a deadly weapon upon an unarmed and defenseless woman constitutes the
circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him,
and from which the woman was unable to defend herself. Thus, in People v. Molas,66 where the
65 

accused was convicted of murder for stabbing to death two women and an eight year old boy, this
Court discoursed:

While treachery was not appreciated as a qualifying circumstance against Molas, the killing
of the three victims was raised to murder by the presence of the qualifying circumstance of
abuse of superior strength. There was abuse of superior strength when Molas inflicted
several mortal wounds upon Soledad. Molas, besides being younger and stronger,
was armed with a weapon which he used in seriously wounding her. That
circumstance was also present when he hacked eight-year old Abelaro and also
Dulcesima who, besides being a woman of lesser strength was unarmed. (Emphasis 67 

supplied)

And in the more recent case of People v.Loreto, this Court opined:
68 

The contention of accused-appellant is barren of merit. Article 14, paragraph 15 of the Revised
Penal Code provides that a crime against persons is aggravated by the accused taking advantage of
superior strength. There are no fixed and invariable rules regarding abuse of superior strength or
employing means to weaken the defense of the victim. Superiority does not always mean numerical
superiority. Abuse of superiority depends upon the relative strength of the aggressor vis-à-vis the
victim. There is abuse of superior strength even if there is only one malefactor and one victim. Abuse
of superiority is determined by the excess of the aggressor's natural strength over that of the victim,
considering the position of both and the employment of means to weaken the defense, although not
annulling it. The aggressor must have advantage of his natural strength to insure the commission of
the crime. In this case, accused-appellant was armed with a knife and used the same in
repeatedly stabbing Leah, a young wisp of a girl, no less than eighteen times after overtaking
her in the sala of Dan's house. Irrefragably, then, accused-appellant abused his superior
strength in stabbing Leah. In a case of early vintage [People v. Guzman, supra. at 1127], the
Court held that:

There is nothing to the argument that the accused was erroneously convicted of murder. An
attack made by a man with a deadly weapon upon an unarmed and defenseless
woman constitutes the circumstance of abuse of that superiority which his sex and
the weapon used in the act afforded him, and from which the woman was unable to
defend herself (U.S. vs. Camiloy, 36 Phil. 757; U.S. vs. Consuelo, 13 Phil. 612; People vs.
Quesada, 62 Phil. 446). The circumstance of abuse of superior strength was, therefore,
correctly appreciated by the trial court, as qualifying the offense as murder. (Emphasis
69 

supplied; citations omitted)

By deliberately employing a deadly weapon against Aileen, appellant Flores clearly took advantage
of the superiority which his strength, sex and weapon gave him over his unarmed victim.

As for appellant Flores' claim of self-defense, it cannot be sustained. As in defense of a relative, one
claiming self defense must prove by clear and convincing evidence both unlawful aggression on the
70 
part of the person killed or injured and reasonable necessity of the means employed to prevent or
repel the unlawful aggression. As a third requisite, he must also prove lack of sufficient provocation
on his part. None of these requisites was shown to be present. As expounded by the trial court:
71 

Arante declared that Aileen panicked and screamed and was hitting him with an extension
cord so he stabbed her. Arante was suggesting that had Ai[l]een remained cool, composed
and friendly, she would not have died.

This perverted reasoning need not detain the Court. There was an on-going aggression
being committed inside her house and within the confines of her room, hence, Aileen's
actuations were perfectly just and legitimate. 72

As adverted to earlier, the trial court, citing People v. Dueno, did not consider evident premeditation
73 

as having aggravated the killing of Aileen since she was not the intended victim of appellants'
conspiracy. Upon further scrutiny, however, this Court finds that this aggravating circumstance
should have been appreciated in connection with Aileen's murder. Jurisprudence is to the effect that
evident premeditation may be considered as present, even if a person other than the intended victim
was killed, if it is shown that the conspirators were determined to kill not only the intended victim but
also anyone who may help him put a violent resistance. 74

Here, it was established that upon seeing her husband being attacked by appellants, Aileen
immediately called for help and hurled objects at appellant Flores. And it was because of this
passionate defense of her husband that appellant Flores hacked at her face and stabbed her four
times. These factual circumstances are analogous to those in People v. Belga, where this Court had
75 

occasion to state that:

While it would seem that the main target of the malefactors were Alberto and Arlene Rose,
this does not negative the presence of evident premeditation on the physical assault on the
person of Raymundo Roque. We have established jurisprudence to the effect that
evident premeditation may be considered as present, even if a person other than the
intended victim was killed (or wounded, as in this case), if it is shown that the
conspirators were determined to kill not only the intended victim but also anyone who
may help him put a violent resistance. Here, Raymundo Roque provided such violent
resistance against the conspirators, giving the latter no choice but to eliminate him
from their path. (Emphasis and underscoring supplied, citations omitted)
76 

Thus, while appellants' original objective may have only been the killing of Jaime, the trial court
correctly held both of them responsible for the murder of Aileen. Co-conspirators are liable for such
other crimes which could be foreseen and are the natural and logical consequences of the
conspiracy. In Pring, et al. v. Court of Appeals, this Court held:
77  78 

While the acts done by the petitioners herein vary from those of their co-accused,
there is no question that they were all prompted and linked by a common desire to assault
and retaliate against the group of Loreto Navarro. Thus, they must share equal liability for all
the acts done by the participants in such a felonious undertaking. While petitioners herein,
Rogelio Pring and Alberto (Roberto) Roxas, on their part, had ganged up Jesus Yumol who
belonged to the group of their adversaries by hitting the latter with a bench and a piece of
wood, and that it was a certain David Ravago who stabbed the deceased Loreto Navarro,
nevertheless, it is a rule that conspirators would necessarily be liable also for the acts
of the other conspirators unless such acts differ radically or substantially from that
which they intended to commit (People vs. Enriquez, 58 Phil. 536; People vs. Rosario, 68
Phil. 720).
 The pronouncements made by this Court in the aforecited case of People vs. Enriquez, still
serve as the governing rule that should be applied to the case at bar. In the said case, this
Court stated:

"x x x x x x x x x

'We are of the opinion that this contention is not tenable. The accused had
undoubtedly conspired to do grave personal injury to the deceased, and now that the
injuries actually inflicted have resulted in death, they cannot escape from the legal
effect of their acts on the ground that one of the wounds was inflicted in a different
way from that which had been intended. x x x x x x x x x.

'As has been said by the Supreme Court of the United States, 'If a number of
persons agree to commit, and enter upon the commission of the crime which will
probably endanger human life such as robbery, all of them are responsible for the
death of a person that ensues as a consequence.' (Boyd vs. U.S., 142 U.S. 450; 35
Law. ed. 1077). In United States vs. Patten, the court said: 'Conspirators who join in
a criminal attack on a defenseless man with dangerous weapons, knock him down,
and when he tries to escape, pursue him with increased numbers, and continue the
assault, are liable for manslaughter when the victim is killed by a knife wound
inflicted by one of the them during the beating, although in the beginning they did not
contemplate the use of a knife.' (42 Appeals, D.C., 239)"

Although during the incident in question the aggression committed by the petitioners herein
was directed against the other members of the group of Loreto Navarro and not on the
deceased, this would not relieve them from the consequence of the acts jointly done by
another member of the petitioners' group who stabbed the deceased Loreto
Navarro. (Emphasis supplied, citations omitted)
79 

And in the more recent case of People v. Bisda, et al., this Court held:
80 

Each conspirator is responsible for everything done by his confederates which

follows incidentally in the execution of a common design as one of its probable and
natural consequences even though it was not intended as part of the original design.
Responsibility of a conspirator is not confined to the accomplishment of a particular
purpose of conspiracy but extends to collateral acts and offenses incident to and
growing out of the purpose intended. Conspirators are held to have intended the
consequences of their acts and by purposely engaging in conspiracy which necessarily and
directly produces a prohibited result, they are, in contemplation of law, chargeable with
intending that result. Conspirators are necessarily liable for the acts of another
conspirator unless such act differs radically and substantively from that which they
intended to commit. As Judge Learned Hand put it in United States v. Andolscheck, "when
a conspirator embarks upon a criminal venture of indefinite outline, he takes his chances as
to its content and membership, so be it that they fall within the common purposes as he
understands them." (Emphasis supplied; citations omitted)

Indeed, since they deliberately planned to attack Jaime in the sanctity of his bedroom where his wife
Aileen was also sleeping, appellants cannot now claim that the latter's violent resistance was an
unforeseen circumstance. Hence, neither of them can escape accountability for the tragic
consequences of their actions.
In determining appellants' criminal liability, the trial court appreciated the generic aggravating
circumstances of dwelling, nighttime and breaking of door in connection with both crimes.
81  82  83 

Dwelling is considered aggravating because of the sanctity of privacy that the law accords to human
abode. 84

Thus, it has been said that the commission of the crime in another's dwelling shows greater
perversity in the accused and produces greater alarm. Here, dwelling was correctly appreciated
85 

since the crimes were committed in the place of abode of the victims who had not given immediate
provocation. 86

Upon the other hand, as pointed out by both appellants and the Solicitor General, the breaking of a
door was not alleged in either of the two informations. Thus, the same cannot be appreciated against
appellants. On this point, this Court's discussion in People v. Legaspi, quoted in the Solicitor
87 

General's Brief, is instructive:

Nonetheless, it is to be noted that the appreciation by the trial court of the aggravating
circumstances of dwelling and nighttime, despite the non-allegation thereof in the
Information, resulted in the imposition of the supreme penalty of death upon accused-
appellant. In People v. Gallego (G.R. No. 130603, 338 SCRA 21, August 15, 2000), We had
occasion to rule thus:

"In People v. Albert (251 SCRA 136, 1995), we admonished courts to proceed with

more care where the possible punishment is in its severest form – death – because
the execution of such a sentence is irrevocable. Any decision authorizing the State to
take life must be as error-free as possible, hence it is the bounden duty of the Court
to exercise extreme caution in reviewing the parties' evidence. Safeguards designed
to reduce to a minimum, if not eliminate the grain of human fault ought not to be
ignored in a case involving the imposition of capital punishment for an erroneous
conviction 'will leave a lasting stain in our escutcheon of justice.' The accused must
thence be afforded every opportunity to present his defense on an aggravating
circumstance that would spell the difference between life and death in order for
the Court to properly 'exercise extreme caution in reviewing the parties'
evidence.' This, the accused can do only if he is appraised of the aggravating
circumstance raising the penalty imposable upon him to death. Such
aggravating circumstance must be alleged in the information, otherwise the
Court cannot appreciate it. The death sentence being irrevocable, we cannot allow
the decision to take away life to hinge on the inadvertence or keenness of the
accused in predicting what aggravating circumstance will be appreciated against him.

xxx

The principle above-enunciated is applicable to the case at bar. Consequently, we hold that
due to their non-allegation in the Information for rape filed against accused-appellant, the
aggravating circumstances of nighttime and dwelling cannot be considered in raising the
penalty imposable upon accused-appellant from reclusion perpetua to death.

xxx

It is to be noted carefully that the rule on generic aggravating circumstances has now been
formalized in the Revised Rules of Criminal procedure, which took effect on December 1,
2000. Section 8 of Rule 110 now provides that:
 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.

Likewise, Section 9 of the same Rule provides:

Sec. 9. Cause of the accusation. – The acts or omission complained of as

constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common understanding to
know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment. (Emphasis supplied)
88 

Appellants and the Solicitor General also argue that nocturnity should not have been considered
since Jaime himself testified that their bedroom was well-lit and there was light coming from the
kitchen and the adjoining bedroom of their children. 89

In determining nocturnity, two tests are employed in the alternative: (1) the objective test, under
which nighttime is aggravating because the darkness facilitated the commission of the offense; and
(2) the subjective test, under which nighttime is aggravating because the darkness was purposely
sought by the offender. Applying these tests to the established factual circumstances, this Court
90 

concludes that nocturnity was correctly appreciated in connection with both crimes.

While the bedroom where the crimes occurred was well-lit, the evidence shows that, in furtherance
of their murderous intent, appellants deliberately took advantage of nighttime, as well as the fact that
the household members were asleep, in order to gain entry into the Bocateja residence. Indeed,
their own testimony indicates that while they were already outside the Bocateja house at around
11:00 p.m., they purposely waited until 2:00 a.m. before breaking into the residence so as not to call
the attention of the Bocatejas and/or their neighbors. It is thus clear that appellants deliberately took
advantage of the darkness of the night, not to mention the fact that the Bocatejas were fast asleep,
to conceal their actions and to facilitate and insure that their entry into the victims' home would be
undetected.

No mitigating circumstances are present to offset the foregoing aggravating circumstances. While
the trial Court noted that appellants were apparently motivated by their belief that Johanna and
Jaime were carrying on an illicit relationship, to wit:

The accused presented evidence to prove that Jaime Bocateja and Johanna Ventura, wife of
the accused Felix Ventura, were maintaining an illicit relationship. The evidence on this point
is principally hearsay – the alleged admissions made by Johanna of the relationship. There
is no doubt, however, that the accused Ventura believes that [his] wife and Jaime Bocateja
are clandestine lovers. It is fairly reasonable, in the absence of any evidence to the contrary,
that it is Ventura's belief of this illicit relationship which prompted him to confront Jaime
Bocateja, 91

it nevertheless ruled out passion or obfuscation or immediate vindication of a grave offense as

92  93 

mitigating circumstances.

While jealousy may give rise to passion or obfuscation, for the appreciation of this mitigating
94 

circumstance it is necessary that the act which produced the obfuscation was not far removed from
the commission of the crime by a considerable length of time, during which the perpetrator might
recover his normal equanimity. In the same vein, while "immediate" vindication should be construed
95 

as "proximate" vindication in accordance with the controlling Spanish text of the Revised Penal
96 

Code, still this mitigating circumstance cannot be considered where sufficient time elapsed for the
accused to regain his composure. 97

In these cases, appellant Ventura's suspicions were aroused as early as February 17, almost a week
before the stabbing incidents on February 23, when he first confronted his wife about her ring.
Moreover, as previously noted, ten hours had elapsed from the time appellants left Murcia, Negros
Occidental, weapons in hand, to the time they entered the Bocateja residence in Bacolod City.
Within that period appellant Ventura had opportunity to change his clothes at a relatives' house in a
neighboring barangay and both appellants were able to take their dinner at the Burgos Market in
Bacolod City. They even waited three hours outside the Bocateja residence before carrying out their
plan. Without question, sufficient time had passed for appellants' emotions to cool and for them to
recover their equanimity.

In fine, for stabbing Jaime, appellants are guilty beyond reasonable doubt of attempted murder
qualified by evident premeditation with the aggravating circumstances of dwelling and nighttime.
However, as pointed out by the Solicitor General, the trial court erred in imposing the sentence of
Eight (8) Years of prision mayor as minimum to Eighteen (18) Years of reclusion temporal as
maximum.

Article 51 of the Revised Penal Code provides that a penalty two degrees lower than that prescribed
for the consummated penalty shall be imposed upon the principals in an attempted felony. Under
Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the penalty for
murder is reclusion perpetua to death. The penalty two degrees lower is prision mayor. Applying
98 

Section 1 of Act No. 4103, as amended, otherwise known as the Indeterminate Sentence Law, and
99 

considering the presence of two aggravating circumstances, the proper imposable penalty falls
within the range of prision mayor in its maximum period (from Ten (10) Years and One (1) Day to
Twelve (12) Years) as maximum and prision correccional (from Six (6) Months and One (1) Day to
Six (6) Years) as minimum. Accordingly, this Court hereby sentences appellants to an indeterminate
penalty of Six (6) Years of prision correccional as minimum to Twelve (12) Years of prision mayor as
maximum.

For fatally stabbing Aileen, appellants are guilty beyond reasonable doubt of murder qualified by
abuse of superior strength with the aggravating circumstances of evident premeditation, dwelling
and nighttime. As already noted, the penalty for murder is reclusion perpetua to death. Article 63 of
the Revised Penal Code provides that when the law prescribes two indivisible penalties, the greater
penalty shall be imposed when, in the commission of the deed, one aggravating circumstance is
present. Consequently, the trial court's imposition of the supreme penalty of death must be
sustained.

Three members of the Court maintain their adherence to the separate opinions expressed in People
vs. Echegaray that Republic Act No. 7659, insofar as it prescribes the penalty of death, is
100 

unconstitutional; nevertheless they submit to the ruling of the majority that the law is constitutional
and that the death penalty should accordingly be imposed.

As regards the civil liability of the appellants, the award of the trial court is hereby modified as
follows:

In Criminal Case No. 00-20692, the award of P50,000.00 to the heirs of Aileen as civil indemnity for
her death is sustained, the commission of the crime by appellants having been duly proven. The 101 
award of moral damages to her heirs is likewise proper considering that the prosecution presented
adequate proof that they suffered mental anguish and wounded feelings. However, the amount of
102 

moral damages awarded by the trial court is hereby reduced from P100,000.00 to P50,000.00 in line
with current jurisprudence. It should be borne in mind that the purpose for such award is to
103 

compensate the heirs of the victim for the injuries to their feelings and not to enrich them.
104

The award of exemplary damages should be increased from P20,000.00 to P25,000.00. Such award
is proper in view of the presence of aggravating circumstances. Furthermore, considering that
105 

counsel for appellants admitted that the heirs of Aileen incurred funeral expenses of
P100,000.00 and such admission has not been shown to have been made through palpable
106 

mistake, the same should be awarded as actual damages. 107

In Criminal Case No. 00-20692, the trial court did not grant Jaime's claim for P20,000.00 in actual
damages for hospitalization expenses since he failed to present any receipts to substantiate the
same. Nonetheless, in light of the fact that Jaime was actually hospitalized and operated upon, this
Court deems it prudent to award P20,000.00 as temperate damages. Moreover, Jaime is also
108 

entitled to moral damages in accordance with Article 2219, paragraph 2 of the Civil Code, which this
Court hereby awards in the amount of P25,000.00. Finally, exemplary damages of P25,000.00 are
109 

also in order considering that the crime was attended by two aggravating circumstances. 110

WHEREFORE, the judgment in Criminal Case No. 00-20693 is hereby AFFIRMED with

MODIFICATION. Appellants Felix Ventura and Arante Flores are found GUILTY beyond reasonable
doubt of the crime of attempted murder qualified by evident premeditation with the aggravating
circumstances of dwelling and nighttime and are hereby sentenced to an indeterminate penalty of
Six (6) Years of Prision Correccional as minimum to Twelve (12) Years of Prision Mayor as
maximum.

Appellants are solidarily ORDERED to pay the victim, Jaime Bocateja, the amounts of: (a) Twenty
Thousand Pesos (P20,000.00) as temperate damages; (b) Twenty Five Thousand Pesos
(P25,000.00) as moral damages; and (c) Twenty Five Thousand Pesos (P25,000.00) as exemplary
damages.

The judgment in Criminal Case No. 00-20692 is likewise AFFIRMED with MODIFICATION.
Appellants Felix Ventura and Arante Flores are found GUILTY beyond reasonable doubt of murder
qualified by abuse of superior strength with the aggravating circumstances of evident premeditation,
dwelling and nighttime and are SENTENCED to the supreme penalty of DEATH.

Appellants are solidarily ORDERED to pay the heirs of Aileen Bocateja the amounts of: (a) Fifty
Thousand Pesos (P50,000.00) as civil indemnity; (b) One Hundred Thousand Pesos (P100,000.00)
as actual damages; (c) Fifty Thousand Pesos (P50,000.00) as moral damages; and (d) Twenty Five
Thousand Pesos (P25,000.00) as exemplary damages.

Upon the finality of this Decision, and pursuant to Art. 83 of the Revised Penal Code, as amended by
Sec. 25 of R.A. No. 7659, let the records of the cases be immediately forwarded to the President of
the Philippines for the exercise, at her discretion, of her power to pardon appellants Felix Ventura
and Arante Flores.

SO ORDERED.

G. R. No. 131923 - December 5, 2002

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NIEL PIEDAD y CONSOLACION, LITO
GARCIA y FRANCISCO and RICHARD PALMA y IDER, accused.
NIEL PIEDAD y CONSOLACION and LITO GARCIA y FRANCISCO, Accused-Appellants.

DECISION

YNARES-SANTIAGO, J.:

Accused Niel Piedad y Consolacion, Lito Garcia y Francisco and Richard Palma y Ider were charged
with Murder in an information, which reads as follows:

That on or about the 10th day of April, 1996, in Quezon City, Philippines, the said accused, conspiring
and confederating with and mutually helping with another person whose true identity and other
personal circumstances of which has not as yet been ascertained and mutually helping one another,
did then and there wilfully, unlawfully and feloniously with intent to kill, qualified with treachery and
evident premeditation and with grave abuse of superior strength, assault, attack and employ personal
violence upon the person of MATEO LACTAWAN Y DAGUINOD by then and there hitting him with an
empty bottle on the head, ganging him up and mauling him, hitting him with a big stone on the head
and stabbing him with a bladed weapon hitting him on the right back portion of his body, thereby
inflicting upon him serious and grave wounds which were the direct and immediate cause of his death,
to the damage and prejudice of the heirs of said MATEO LACTAWAN Y DAGUINOD.

CONTRARY TO LAW.1

Upon arraignment, all the accused pleaded not guilty to the charge. Trial ensued thereafter.

Luz Lactawan, widow of the victim Mateo Lactawan, testified that on April 10, 1996, at around 11
oclock in the evening, she left her house at No. 2 Scout Bayoran, Barangay South Triangle, Quezon
City, to follow Mateo, who had earlier gone. As she was walking by the gate of the company
compound where they reside, she heard Fidel Piquero shouting for help because Mateo was being
mauled by a group of men. She rushed out of the compound and saw her husband being beaten up by
Niel Piedad, Richard Palma, Lito Garcia and five others. She tried to pacify the aggressors, but was
beaten herself. Luz embraced Mateo in an effort to protect him. It was then that Niel picked up a large
stone, measuring about a foot and a half, and struck Mateos head with it. Then, Lito approached
Mateos side and stabbed him at the back, while Richard hit Mateo in the face.

Fidel Piquero, who resides in the same company compound as the Laktawans, corroborated Luzs
testimony. While eating at Aling Dignas eatery, he saw Mateo and Andrew Gaerlan come out of the
compound and buy two bottles of beer at a nearby store. They consumed their beer and were about to
leave when Niel, for no apparent reason, struck Mateo with a Tanduay Rhum bottle on the head.
Andrew hurled a plastic chair towards Niel, which caused the latter to scamper away.

Shortly thereafter, Fidel saw Niel returning to the store with several companions. Upon seeing the
approaching group, Mateo and Andrew ran towards the compound. Fidel also ran towards the
company compound to ask for help. Later, Fidel emerged from the compound followed by Luz.

They saw Mateo leaning by the compound gates and being beaten up by Niels group. Luz quickly came
to the succor of her husband and embraced him. Niel hit Mateo on the head with a large stone. Fidel
also saw Richard, Lito and Rodel Albuena at the scene of the crime. Lito stabbed Mateo with a
balisong. Richard, on the other hand, chased and mauled Andrew.

Mateo was rushed to the East Avenue Medical Center where he later died because of the injuries he
sustained.
Dr. Ma. Cristina B. Freyra, chief of the Biological Science Branch of the Philippine National Police Crime
Laboratory Service in Station 10, EDSA, Kamuning, who conducted the post-mortem examination of
the body of Mateo, testified that the stab wound inflicted on the deceased was 15 centimeters deep
and that the pressure applied on his head by means of a blunt object was enough to bring about
hemorrhage inside the skull.2 The doctor further revealed that both wounds were fatal. 3 Abrasions on
the right ear and right shoulder were also found. 4 No defense wounds were present.5 Dr. Freyra
concluded that the cause of death was traumatic injury in the head and a stab wound at the back. 6

SPO4 Lovino Acharon, SPO2 Diosdado Lagajino and two other members of the mobile patrol division
responded to the phone call from the East Avenue Medical Center regarding the stabbing and mauling
incident. They repaired to the crime scene and apprehended Lito and a certain Luis Rodel. Richard and
Niel, meanwhile, were surrendered to the police station by their parents and the barangay chairman of
South Triangle.

During the trial, P03 Antonio Torrente identified a blood-stained concrete slab which he had found at
the scene of the crime, allegedly the one used to hit Mateos head. On cross examination, however,
Torrente admitted that the alleged blood stains were not submitted for forensic examination to confirm
whether the stains were indeed human blood or not.

Accused-appellants denied the charges against them and gave a different version of the incident.

Niel Piedad averred that in the evening of April 10, 1996, he and Richard Palma went to Mang Agas
store to buy a bottle of Tanduay Rhum. They saw Mateo and Andrew drinking at another store nearby.
Niel and Richard were about to buy their liquor from the store counter when Mateo cut their path and
got ahead to the counter to buy beer for himself. When Niel finally got the bottle of Tanduay Rhum
that he bought, Mateo grabbed it from him. Niel took the bottle back and pushed Mateo. Apparently
provoked, Mateo got hold of his bottle of beer and was about to hit Niel with it, but the latter hit Mateo
on the head first with the bottle of Tanduay Rhum. Andrew saw what happened and retaliated by
picking up a plastic chair and hitting Niel at the back. Niel and Richard dispersed and ran towards their
houses. Mateo and Andrew followed and threw bottles of beer at Niel and Richard. A throwing
exchange of bottles ensued. During this sequence of events, a group of people suddenly appeared and
joined in the fray. Niel was about to approach the group of people, when Fidel suddenly blocked his
way. A fistfight between the two followed.

Richard essentially corroborated Niels testimony. Richard left Niel to ask for help from the barangay
hall. When Richard returned to the scene, he saw Niel engaged in a fistfight with Fidel. Richards
friends were also present. Lito broke up the fight between Niel and Fidel.

At the same time, a melee occurred on another street. After the fistfight, Richard and his friends left
for home. Like the other accused in this case, Richard denied any involvement in Mateos death.

Lito Garcia, on the other hand, averred that he went out to buy cigarettes and on his way home, he
noticed several people running. A brawl was taking place along Mother Ignacia Street. Lito saw Niel
and Fidel exchange blows. Lito insisted that he does not know Mateo, nor the latters wife, Luz. He also
denied any involvement in Mateos death.

Wilson Palma and Bernard Rasol, by and large, corroborated Niels and Richards version of the
incident. Rasol added that Luz was not present during the brawl.

The trial court rendered a decision7 the dispositive portion of which reads:

WHEREFORE, the Court finds accused Niel Piedad and Lito Garcia guilty beyond reasonable doubt of
the crime of murder with no modifying circumstances present, and hereby sentences each of them to
suffer the penalty of reclusion perpetua pursuant to Art. 248 of the Revised Penal Code. Accused Niel
Piedad and Lito Garcia are likewise held solidarily liable to indemnify the heirs of the victim Mateo
Lactawan in the sum of P50,000.00.
Accused Richard Palma is hereby acquitted on the ground of reasonable doubt.

Hence, the instant appeal by Niel Piedad and Lito Garcia.

In his Brief, accused-appellant Niel Piedad raised the following errors:

I.

THAT THE LOWER COURT COMMITTED GRAVE AND REVERSIBLE ERROR IN:

A. ADMITTING AND RELYING ON THE IN-COURT IDENTIFICATION OF ACCUSED-APPELLANT PIEDAD

DURING THE TRIAL WHEN IT WAS TAINTED BY A POINTEDLY SUGGESTIVE AND FATALLY FLAWED
PRE-TRIAL IDENTIFICATION.

B. FAILING TO SUBJECT THE TESTIMONIES OF THE ALLEGED WITNESSES TO RIGID SCRUTINY AS

MANDATED BY THE DECISIONS OF THIS HONORABLE COURT IN CASES WHERE THE WITNESSES
HAVE CLOSE RELATIONSHIP TO THE VICTIM.

C. ADMITTING INTO EVIDENCE AND RELYING ON THE ALLEGED MURDER WEAPON WHEN IT WAS NOT
DULY AUTHENTICATED AND IN ANY EVENT HAS LITTLE PROBATIVE VALUE; AND IN

D. PLAINLY OVERLOOKING MATERIAL FACTS CRUCIAL TO THE OUTCOME OF THE CASE.

II.

ASSUMING ARGUENDO THAT APPELLANT PIEDAD PARTICIPATED IN THE MELEE, THE LOWER COURT
COMMITTED GRAVE AND REVERSIBLE ERROR IN FINDING HIM GUILTY OF MURDER INSTEAD OF
HOMICIDE IN THE ABSENCE OF ANY PROOF BEYONG REASONABLE DOUBT OF TREACHERY OR OTHER
QUALIFYING CIRCUMSTANCES.

For his part, accused-appellant Lito Garcia raised the following errors:

I.

THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE PROSECUTION
WITNESSES.

II.

THE LOWER COURT ERRED IN HOLDING THAT THE PROSECUTION WAS ABLE TO PROVE BEYOND
REASONABLE DOUBT THAT ACCUSED-APPELLANT KILLED MATEO LACTAWAN.

III.

THE LOWER COURT ERRED IN HOLDING THAT THE PROSECUTION WAS ABLE TO ESTABLISH, BY
PROOF BEYOND REASONABLE DOUBT, THAT MATEO LACTAWAN WAS TREACHEROUSLY STABBED.

IV.

THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANT DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

The appeals are devoid of merit.

Accused-appellants raise basically similar assignment of errors, which shall be discussed jointly.

Accused-appellant Niel Piedad argues that the way that he was identified by prosecution witnesses
was suggestive and fatally flawed. Niel claims that he should have been put in a police lineup instead
of being shoveled into a "confrontation" with the alleged witnesses and immediately singled out by the
police as suspects. He further claims that he was denied his right of counsel during the most crucial
stage of the police investigation - that is, his identification as one of the assailants by eyewitnesses.

We do not agree.

The claim by the defense that Niels pre-trial identification was suggestive due to the absence of a
police lineup is more theoretical than real. It must be pointed out that even before the incident, Luz
Lactawan knew the accused.8 Fidel, on the other hand, knew Niel because they played basketball
together.9 Hence, the witnesses were not identifying persons whom they were unfamiliar with, where
arguably, improper suggestion may set in. On the contrary, when the accused were presented before
the witnesses, they were simply asked to confirm whether they were the ones responsible for the
crime perpetrated. The witnesses did not incriminate the accused simply because they were the only
ones presented by the police, rather, the witnesses were certain they recognized the perpetrators of
the crime.10

Besides, there is no law which requires a police lineup before a suspect can be identified as the culprit
of a crime.11 What is important is that the prosecution witnesses positively identify the persons
charged as the malefactors.12 In this regard, this Court finds no reason to doubt the veracity of Luzs
and Fidels testimony. The records show that Luz and Fidel positively, categorically and unhesitatingly
identified Niel as the one who struck Mateo on the head with a stone, and Lito as the one who stabbed
Mateo on the back, thereby inflicting traumatic head injuries and a stab wound which eventually led to
Mateos death. Indeed, if family members who have witnessed the killing of a loved one usually strive
to remember the faces of the assailants,13 this Court sees no reason how a wife, who witnessed the
violence inflicted upon her husband and who eventually died by reason thereof, could have done any
less. It must be stressed that Luz was right beside her husband when the concrete stone was struck
on his head, hence, Luz could not have mistaken the identity of the person responsible for the attack.
She was only a foot away from Niel before the latter hit Mateo on the head. 14

Lito on the other hand was identified by both Luz15 and Fidel16 as the one who was shirtless at the time
of the incident. There was light from a bulb five (5) meters away from the scene of the
crime.17 Experience dictates that precisely because of the unusual acts of violence committed right
before their eyes, eyewitnesses can remember with a high degree of reliability the identity of the
criminals at any given time.18 Hence, the proximity and attention afforded the witnesses, coupled with
the relative illumination of the surrounding area, bolsters the credibility of identification of the
accused-appellants.

Neither is the lack of counsel during the pre-trial identification process of the accused-appellants fatal.

The right to counsel accrues only after an investigation ceases to be a general inquiry into an unsolved
crime and commences an interrogation aimed at a particular suspect who has been taken into custody
and to whom the police would then propound questions which tend to elicit incriminating
statements.19 The presence of counsel during such investigation is intended to prevent the slightest
coercion as would lead the accused to admit something false. 20 What is thus sought to be avoided is
the evil of extorting from the very mouth of the person undergoing interrogation for the commission of
an offense, the very evidence with which to prosecute and thereafter convict him. 21 In the case at bar,
however, accused-appellants did not make any extrajudicial confession or admission with regard to
the crime charged.22 While Niel and Lito may have been suspects, they were certainly not interrogated
by the police authorities, much less forced to confess to the crime imputed against them. Accused-
appellants were not under custodial investigation. In fact, Niel averred during cross-examination that
the police never allowed them to say anything at the police station on the day they voluntarily
presented themselves to the authorities.23
Likewise, Lito testified that he did not talk to any of the police officers nor sign any written statement
at the police station when he was invited. 24 Moreover, the rights accorded an accused under Section
12, Article III of the Constitution applies only against testimonial compulsion and not when the body
of the accused is proposed to be examined, as was done in this case - presented to the witnesses to
be identified. Accused-appellants were not thus denied their right to counsel.

On the issue of relationship, it has been held time and again that the close relationship of a witness to
the victim will not affect the formers testimony. It is basic precept that relationship per se of a witness
with the victim does not necessarily mean that the former is biased. 25 On the contrary, it is more in
accord with human nature for a friend, not to mention the wife of a victim, to have more interest in
telling the truth, for they would naturally want the real culprits brought to justice and meted their
punishment, rather than prevaricate and send an innocent man to rot in jail. Their relationship to the
victim would even lend credence to their testimonies as their natural interest in securing the
conviction of the guilty would deter them from implicating persons other than the culprits; otherwise,
the conviction of the innocent would thereby grant immunity to the guilty. 26

The alleged inconsistencies by the prosecution witnesses do not impair the credence given to their
testimonies and do not change the fact that accused-appellants were positively identified as the
attackers of the deceased. It is perfectly natural for different witnesses testifying on the occurrence of
a crime to give varying details as there may be some details which one witness may notice while the
other may not observe or remember. In fact, jurisprudence even warns against a perfect dovetailing
of narration by different witnesses as it could mean that their testimonies were prefabricated and
rehearsed.27 As the Solicitor General correctly observed:28

To be sure, the testimonies may not be described as flawless, but the triviality of such
"inconsistencies" hardly affect either the substance or veracity and weight of testimony which, just to
the contrary, can serve to reinforce, rather than weaken credibility. In any case, there is no valid
reason shown to deny the trial court the respect due it in the determination of credibility of
witnesses. The fact remains that the injuries that caused the death of Mateo were inflicted by
appellant and Lito Garcia. (Emphasis provided).

Niel Piedad likewise assails the admissibility of the alleged murder weapon for lack of proper
authentication. Lito Garcia for his part impugns the non-presentation of the knife used in stabbing the
deceased.29

It must be conceded that the handling by the police of the concrete stone used by Niel in hitting Mateo
on the head leaves much to be desired.

As aptly pointed out by the defense counsel, no tags, no signature, or any kind of identification
containing the date and place where such evidence was found, was ever made on the specimen
retrieved as the murder weapon.30 And while P04 Antonio Torrente did claim to have made a
marking31 on the stone, there is no evidence on record which suggests that the stone presented in
court bore the same markings made by Torrente. Furthermore, while it is the prosecutions contention
that the concrete stone was stained with blood, 32 the blood stain was never brought for forensic
examination to confirm whether or not the stain was of human blood. In fine, an important piece of
evidence like the concrete stone herein should have been handled more properly by the authorities so
as to obviate any doubt as to its authenticity when it is finally presented as object evidence in court.

Be that as it may, even on the assumption that the concrete slab proffered by the prosecution was
inadmissible and the knife allegedly used to stab the deceased was never presented, it would not alter
the finding of guilt of the accused-appellants for the simple reason that the presentation of the
instruments used in the killing of the deceased is not indispensable in the prosecution of the
accused.33 The weapon used in the killing, after all, is not an element of the either the crimes of
homicide or murder. Verily, the non-presentation by the prosecution of the items which the accused-
appellants used in stoning and stabbing the victim is not fatal considering that the accused has been
positively identified.34 The case of People v. Bagcal35 is in point:
 x x x For conviction of an accused in criminal cases, it is enough that the prosecution proves beyond
reasonable doubt that a crime was committed and that the accused committed it. Production of the
weapon used in committing the crime is not a condition sine qua non for the discharge of that burden.
It is not vital to the cause of the prosecution, especially where other evidence is available to support
sufficiently the charges. x x x.

Finally on the issue of treachery, accused-appellant Niel Piedad claims that the attack on the victim
was made upon an impulse of the moment and was not the product of deliberate intent; while Lito
Garcia contends that treachery cannot be appreciated inasmuch as the attack was preceded by a
quarrel and heated discussion.

We are not persuaded.

There is treachery when the offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof which tend directly and especially to ensure its execution,
without risk to himself arising from any defense which the offended party might make. 36 For treachery
to be appreciated, the prosecution must prove: a) that at the time of the attack, the victim was not in
a position to defend himself, and b) that the offender consciously adopted the particular means,
method or form of attack employed by him.37

The essence of treachery is thus a deliberate and sudden attack, affording the hapless, unarmed and
unsuspecting victim no chance to resist or to escape. 38 While it is true that the victim herein may have
been warned of a possible danger to his person, since the victim and his companion headed towards
their residence when they saw the group of accused-appellants coming back for them after an earlier
quarrel just minutes before, in treachery, what is decisive is that the attack was executed in such a
manner as to make it impossible for the victim to retaliate. 39

In the case at bar, Mateo did not have any chance of defending himself from the accused-appellants
concerted assault, even if he was forewarned of the attack. Mateo was obviously overpowered and
helpless when accused-appellants group numbering around eight, ganged up and mauled him. Luz
came to Mateos succor by embracing him and pacifying his aggressors, but accused-appellants were
unrelenting. More importantly, Mateo could not have actually anticipated the sudden landing of a large
concrete stone on his head. The stone was thus treacherously struck.

Neither could the victim have been aware that Lito came up beside him to stab his back as persons
were beating him from every direction. Litos act of stabbing the victim with a knife, inflicting a 15-
centimeter-deep wound shows deliberate intent of using a particular means of attack. Considering the
location of the injuries sustained by the victim and the absence of defense wounds, Mateo clearly had
no chance to defend himself. In view of the foregoing, treachery was correctly appreciated by the trial
court.

In summation, the allegation of the defense that there were two mauling incidents which happened on
the night in question deserve little probative value inasmuch as the same was unconvincing and self-
serving. The denials of the accused-appellants cannot overcome their positive identification by the
principal witnesses. It is well settled that between the positive assertions of the prosecution witnesses
and the negative averments of the accused-appellants, the former undisputedly deserve more
credence and is, therefore, entitled to greater evidentiary weight. 40

In any case, this Court sees no reason to depart from the well-entrenched doctrine that findings of
facts of the lower court are accorded due respect and weight unless it has overlooked material and
relevant points that would have led it to rule otherwise. The time-honored rule is that the matter of
assigning values to declarations on the witness stand is best and most competently performed by the
trial judge who, unlike appellate magistrates, can weigh such testimony in light of the declarants
demeanor, conduct and attitude at the trial and is thereby placed in a more competent position to
discriminate between truth and falsehood. Thus, appellate courts will not disturb the credence, or lack
of it, accorded by the trial court to the testimonies of witnesses, unless it be clearly shown that the
latter court had overlooked or disregarded arbitrarily the facts and circumstances of significance in the
case.41 Accused-appellants failed to show that the trial court overlooked or disregarded facts and
circumstances deemed significant by them in their assignment of errors.

The trial court, therefore, did not err in convicting accused-appellants of the crime of murder.

The penalty for murder is punishable by reclusion perpetua to death. 42 The lesser of the two indivisible
penalties shall be imposed, there being neither mitigating nor aggravating circumstances attending
the crime.

In line with current jurisprudence43 however, we further grant P50,000.00 as moral damages to the
heirs of the victim aside from the amount of P50,000.00 as civil indemnity granted by the trial court.
As borne out by human nature and experience, a violent death invariably and necessarily brings about
emotional pain and anguish on the part of the victims family. For this reason, moral damages must be
awarded even in the absence of any allegation and proof of the heirs emotional suffering. 44

WHEREFORE, the decision of the Regional Trial Court of Quezon City, Branch 102, finding accused-
appellants Niel Piedad y Consolacion and Lito Garcia y Francisco, guilty of the crime of murder and
sentencing them to suffer the penalty of reclusion perpetua, is hereby AFFIRMED with the
MODIFICATION that the accused-appellants are solidarily ordered to pay the heirs of Mateo Lactawan
y Daguinod the amounts of Fifty Thousand Pesos (P50,000.00) as civil indemnity and Fifty Thousand
Pesos (P50,000.00) as moral damages.

SO ORDERED.

G.R. No. 182551               July 27, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROSENDO REBUCAN y LAMSIN, Accused-Appellant.

DECISION

LEONARDO–DE CASTRO, J.:

Assailed before this Court is the Decision1 dated August 21, 2007 of the Court of Appeals in CA-G.R.
CR.-H.C. No. 00282, which modified the Decision2 dated November 3, 2003 of the Regional Trial
Court (RTC) of Carigara, Leyte, Branch 13, in Criminal Case No. 4232. In the Decision of the Court
of Appeals, the accused-appellant Rosendo Rebucan y Lamsin was adjudged guilty beyond
reasonable doubt of two (2) separate counts of murder and was sentenced to suffer the penalty of
reclusion perpetua for each count.

On January 23, 2003, the accused-appellant was charged with the crime of double murder in an
Information, the accusatory portion of which reads:

That on or about the 6th day of November, 2002, in the Municipality of Carigara, Province of Leyte,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill, with treachery and evident premeditation and abuse of superior strength, did
then and there willfully, unlawfully and feloniously attack, assault and wound FELIPE LAGERA Y
OBERO, 65 years old and RANIL TAGPIS Y LAGERA, 1 year old, with the use of a long bolo
(sundang) which the accused had provided himself for the purpose, thereby inflicting upon Felipe
Lagera:
Hypovolemic shock, massive blood loss and multiple hacking wounds upon Ranil Tagpis:

Hypovolemic shock, massive blood loss and hacking wound, head[,] which wounds caused the
death of Felipe Lagera y Obera and Ranil Tagpis y Lagera, immediately thereafter. 3

When arraigned on February 10, 2003, the accused-appellant pleaded not guilty to the
charge.4 Trial, thereafter, ensued.

The prosecution presented as witnesses: (1) Dr. Ma. Bella V. Profetana, Municipal Health Officer of
Carigara, Leyte; (2) Carmela Tagpis, the 5-year-old granddaughter of the victim Felipe Lagera and
sister of the victim Ranil Tagpis, Jr.;5 (3) Adoracion Lagera, the wife of Felipe Lagera; and (4) Alma
Tagpis, the daughter of Felipe Lagera and mother of Ranil Tagpis, Jr.

Dr. Profetana testified that she conducted a post-mortem examination on the body of the victim
Felipe Lagera on November 6, 2002. She stated that Felipe sustained three hacking wounds, the
first of which was located at his right arm and was about 23x2x4 centimeters. The said wound was
fatal and could have been caused by a sharp instrument such as a bolo. The second wound was
located at Felipe’s "nose maxillary area,"6 measuring 13 centimeters, with an inverted C shape. The
second wound was not fatal and could have been caused by a sharp-edged instrument like a bolo.
The third wound was located at Felipe’s left arm and was measured as 9x1x1.5 centimeters. The
said wound was fatal and could have likewise been caused by a sharp-edged instrument. Dr.
Profetana concluded that the causes of death of Felipe were hypovolemic shock, massive blood loss
and multiple hacking wounds. She also conducted a post-mortem examination on the body of Ranil
Tagpis, Jr. on the aforementioned date. The results revealed that Ranil sustained a hacking wound
at the "fronto-temporal area"7 with a skull fracture. In the case of Ranil, the cause of death was
"hypovolemic shock secondary to massive blood loss secondary to [the] hacking wound to the
head."8 The instrument that was most likely used was sharp-edged like a bolo. 9

Carmela Tagpis testified as an eyewitness to the incident in question. She pointed to the accused-
appellant as the "Bata Endong" 10 (Uncle Endong) who hacked her grandfather and brother. She
stated that Ranil was hit in the forehead, while Felipe was hit on the face, the left shoulder and the
right shoulder. After Felipe was hacked by the accused-appellant, the former was still able to walk
outside of his house, to the direction of the coconut tree and thereafter fell to the ground. Carmela
said that she saw that a long bolo was used in the killing of Felipe and Ranil. She related that Felipe
also owned a bolo but he was not able to use the same when he was attacked. She was then inside
the house with Felipe and her two younger brothers, Jericho and Bitoy (Ranil). She was sitting about
four meters away when the hacking incident occurred indoors. 11

On cross-examination, Carmela stated that at the time of the incident, she was playing with a toy
camera inside the house and she was situated beside a chicken cage, near a bench. Felipe was
also there near the bench and he was carrying Ranil in his right arm. When asked whether the
accused-appellant came inside the house in a sudden manner, Carmela answered in the affirmative.
She insisted that Ranil was indeed carried by Felipe when the accused-appellant entered the house.
She said that no fight or altercation occurred between Felipe and the accused-appellant. After Felipe
was hacked, he immediately ran outside of the house. Carmela and Jericho then ran to the back of
the house.12

Adoracion Lagera testified that at 4:00 p.m. on November 6, 2002, she was at the house of a certain
Justiniano Rance. After arriving there, she was fetched by a little boy who told her to go home
because Felipe had been hacked. She ran towards the direction of her house. When she got there,
she saw the lifeless body of Felipe sprawled on the ground. She then went inside the house and
found her daughter, Alma Tagpis, cuddling the body of Ranil whose head was wounded. She told
Alma to look for a motor vehicle to bring the child to the hospital. She also found out that the other
two children, Carmela and Jericho, hid when they saw Felipe being hacked. When she asked them
who went to their house, Carmela told her that it was the accused-appellant who entered their house
and hacked the victims.13

Alma Tagpis testified that at about 4:00 p.m. on November 6, 2002, she was in Brgy. Sogod, having
their palay (unhusked rice grain) milled. Shortly thereafter, she went home and proceeded to the
house of her father, Felipe, where she left her children. She then met a person looking for her
mother who was about to tell the latter that Felipe was hacked. When she rushed to Felipe’s house,
she saw him lying in the grassy place, wounded and motionless. She asked Felipe who hacked him,
but he was not able to answer anymore. She went inside the house and saw blood on the floor and
the feet of her son Ranil. Thinking that the killer was still inside, she went to the back of the house
and pulled a slot of board on the wall so she could get inside. Upon seeing the body of Ranil, she
took him and ran towards the road. She was able to bring Ranil to the hospital, but the doctor
already pronounced him dead. Her other two children, Carmela and Jericho, soon arrived at the
hospital with the police. When she asked them who killed Felipe, Carmela answered that it was the
accused-appellant.14

Thereafter, the prosecution formally offered the following documentary evidence, to wit: (1) Exhibit A
– the Post-mortem Examination Report on Felipe;15 (2) Exhibit B – the sketch of the human anatomy
indicating the wounds sustained by Felipe; 16 (3) Exhibit C – the Certificate of Death of Felipe; 17 (4)
Exhibit D – the Post-mortem Examination Report on Ranil; 18 (5) Exhibit E – the sketch of the human
anatomy indicating the wounds sustained by Ranil; 19 and (6) Exhibit F – the Certificate of Death of
Ranil.20

The defense, on the other hand, presented the following witnesses, namely: (1) Raymond Rance,
the stepson of the accused-appellant; (2) Renerio Arminal, 21 the barangay chairperson of Brgy.
Canlampay, Carigara, Leyte; (3) Arnulfo Alberca, a member of the Philippine National Police (PNP)
stationed at Carigara, Leyte; and (4) the accused-appellant Rosendo Rebucan y Lamsin.

Raymond Rance testified that his mother’s name is Marites Rance. The accused-appellant is not his
biological father but the former helped in providing for his basic needs. He narrated that on the night
of July 18, 2002, he saw Felipe Lagera inside their house. Felipe placed himself on top of
Raymond’s mother, who was lying down. Raymond and his younger sister, Enda, were then
sleeping beside their mother and they were awakened. His mother kept pushing Felipe away and
she eventually succeeded in driving him out. In the evening of July 20, 2002, at about 11:00 p.m.,
Raymond recounted that he saw Felipe’s son, Artemio alias Timboy, inside their house. Timboy was
able to go upstairs and kept trying to place himself on top of Raymond’s mother. The latter got mad
and pushed Timboy away. She even pushed him down the stairs. The accused-appellant was
working in Manila when the aforesaid incidents happened. Raymond said that his mother thereafter
left for Manila. Subsequently, he saw the accused-appellant at the house of a certain Bernie, several
days after the accused-appellant arrived in Leyte. He told the accused-appellant about the incidents
involving Felipe and Timboy. On November 6, 2002, Raymond and the accused were already living
in the same house. On the said date, the accused-appellant left their house after they had lunch and
he told Raymond that he was going to call the latter’s mother. Raymond testified that the accused-
appellant is a good man and was supportive of his family. He also stated that the accused-appellant
seldom drank liquor and even if he did get drunk, he did not cause any trouble. 22

Renerio Arminal testified that on November 6, 2002, the accused-appellant surrendered to him. The
latter came to him alone and told him that he (the accused-appellant) fought with Felipe Lagera.
Arminal then ordered the human rights action officer, Ricky Irlandez, and the chief tanod, Pedro
Oledan, to bring the accused-appellant to the police station. Afterwards, the police officers came to
his place and he accompanied them to the house of Felipe. 23

Arnulfo Alberca was likewise called upon to the witness stand to prove that the voluntary surrender
of the accused-appellant was entered into the records of the police blotter. He was asked to read in
open court the Police Blotter Entry No. 5885 dated November 6, 2002, which recorded the fact of
voluntary surrender of the accused-appellant. His testimony was no longer presented, however,
since the prosecution already admitted the contents of the blotter. 24

The accused-appellant testified that he arrived in Carigara, Leyte from Manila on August 15, 2002.
He went to the house of his elder brother, Hilario, to look for his children. There, he learned that his
wife went to Manila and his brother was taking care of his two children and his stepson, Raymond.
On November 2, 2002, he saw Raymond at the place of his friend, Bernie Donaldo. He asked
Raymond why the latter’s mother went to Manila and he was told that, while he was still in Manila,
Felipe and Timboy Lagera went to their house and tried to place themselves on top of his wife. He
then said that he harbored ill feelings towards the said men but he was able to control the same for
the sake of his children. On November 6, 2002, at about 2:00 p.m., he went to the house of
barangay chairperson Arminal to place a call to his wife who was in Manila. He was carrying a bolo
at that time since he was using the same to cut cassava stems in his farm. When he talked to his
wife, she confirmed that she was sexually molested by Felipe and Timboy. Thereafter, as the
accused-appellant proceeded to go home, it rained heavily so he first sought shelter at the place of
his friend, Enok. The latter was drinking gin and he was offered a drink. After staying there and
drinking for half an hour, the accused-appellant decided to go home. Afterwards, he remembered
that he had to buy kerosene so he went to the store of Felipe Lagera. 25

The accused-appellant further testified that when he reached the house of Felipe, the latter was
feeding chickens. When Felipe asked him what was his business in going there, he confronted
Felipe about the alleged sexual abuse of his wife. Felipe allegedly claimed that the accused-
appellant had a bad purpose for being there and that the latter wanted to start a fight. Accused-
appellant denied the accusation and responded that Felipe should not get angry, as it was he
(Felipe) who committed a wrong against him and his wife. Felipe allegedly got mad and hurled the
cover of a chicken cage at him, but he was able to parry it with his hand. The accused-appellant then
drew his long bolo and hacked Felipe on the left side of the abdomen, as the latter was already
turning and about to run to the house. He also went inside the house since Felipe might get hold of a
weapon. When they were both inside and he was about to deliver a second hacking blow, Felipe
held up and used the child Ranil as a shield. As the second hacking blow was delivered suddenly,
he was not able to withdraw the same anymore such that the blow landed on Ranil. When he saw
that he hit the child, he got angry and delivered a third hacking blow on Felipe, which landed on the
right side of the latter’s neck. Thereafter, Felipe ran outside. He followed Felipe and hacked him
again, which blow hit the victim’s upper left arm. At that time, Felipe was already on the yard of his
house and was about to run towards the road. He then left and surrendered to the barangay
chairperson.26

During his cross-examination, the accused-appellant said that he was a bit tipsy when he proceeded
to Felipe’s house, but he was not drunk. When Felipe ran inside the house after the first hacking
blow, the accused-appellant stated that he had no intention to back out because he was thinking that
the victim might get a gun and use the same against him. The accused-appellant also asserted that
when he was about to deliver the second hacking blow, Felipe simultaneously took Ranil who was
sitting on a sack and used him to shield the blow. There was a long bolo nearby but Felipe was not
able to take hold of the same because the accused-appellant was chasing him. He admitted that he
had a plan to kill Felipe but claimed that when he arrived at the latter’s house on the day of the
attack, he had no intention to kill him.27
The defense also presented the following documentary evidence: (1) Exhibit 1 – the Police Blotter
Entry No. 5885 dated November 6, 2002;28 and (2) Exhibit 2 – the Civil Marriage Contract of
Rosendo Rebucan and Marites Rance.29

On November 3, 2003, the RTC rendered a decision, convicting the accused-appellant of the crime
of double murder. The trial court elucidated thus:

[In view of] the vivid portrayal of Raymond on how [the wife of the accused] was sexually abused by
the father and son Lagera, the accused hatched a decision to avenge his wife’s sexual molestation.
Days had passed, but this decision to kill Felipe did not wither, instead it became stronger, that on
the 6th of November 2002, he armed himself with a sharp long bolo known as "sundang" and went
to Brgy. Canlampay, Carigara, Leyte where the victim live[d]. Fueled by hatred and the spirit of
London gin after consuming one bottle with his compadre "Enok", he decided to execute his evil
deeds by going to the house of Felipe Lagera, in the guise of buying kerosene and once inside the
house hacked and wounded the victim, Felipe Lagera who was then holding in his arm his grandson,
one and half years 1 ½ old, Ramil Tagpis, Jr.

The manner by which the accused adopted in killing the victim, Felipe Lagera, and Ramil Tagpis, Jr.
was a premeditated decision and executed with treachery.

xxxx

There is credence to the testimony of the minor eyewitness Carmela Tagpis that the victim, Felipe
was holding in his arms her younger brother, Ramil Tagpis, Jr. inside his house, when the accused
entered, and without any warning or provocation coming from the victim, the accused immediately
delivered several hacking blows on the victim giving no regard to the innocent child in the arms of
Lagera. With this precarious situation, the victim who was unarmed has no opportunity to put up his
defense against the unlawful aggression of the accused, moreso, to retaliate. Moreover, what
defense could an innocent 1 1/2 years old Ramil Tagpis, Jr. put up against the armed and superior
strength of the accused, but to leave his fate to God.

The circumstance that the attack was sudden and unexpected and the victims, unarmed, were
caught totally unprepared to defend themselves qualifies the crime committed as murder. x x x.

After the incident, the accused Rosendo Rebucan immediately went to the house of Brgy. Chairman,
Renerio Arcenal at sitio Palali, Brgy. Canlampay, Carigara, Leyte, to surrender, because he killed
Felipe Lagera and Ramil Tagpis, Jr. The Brgy. Chairman instructed his Brgy. Human Rights Action
Officer, Ricky Irlandez and his Chief Tanod, Pedro Oledan to bring Rosendo to the Police Authorities
of Carigara, Leyte. This fact of voluntary surrender was corroborated by Police Officer Arnulfo
Alberca, who presented to Court the police blotter, under entry No. 5885, dated November 6, 2002,
of the PNP, Carigara, Leyte.

Clearly, the act of the accused in surrendering to the authorities showed his intent to submit himself
unconditionally to them, to save the authorities from trouble and expenses that they would incur for
his capture. For this reason, he has complied with the requisites of voluntary surrender as a
mitigating circumstance[.] x x x.

From the circumstances obtaining, the mitigating circumstances of admission and voluntary
surrender credited to the accused are not sufficient to offset the aggravating circumstances of: a)
evident premeditation; b) treachery (alevosia); c) dwelling – the crime was committed at the house of
the victim; d) intoxication – the accused fueled himself with the spirit of London gin prior to the
commission of the crime; e) abuse of superior strength; and f) minority, in so far as the child victim,
Ramil Tagpis, Jr. is concerned, pursuant to Article 63 of the Revised Penal Code as amended. x x x.

xxxx

In the mind of the Court, the prosecution has substantially established the quantum of evidence to
prove the guilt of the accused beyond reasonable doubt. 30

The RTC, thus, decreed:

WHEREFORE, premises considered, pursuant to Sec. 6, Art. 248 of the Revised Penal Code, as
amended and further amended by R.A. 7659 (The Death Penalty Law), the Court found accused
ROSENDO REBUCAN y LAMSIN, GUILTY beyond reasonable doubt of the crime of DOUBLE
MURDER charged under the information and sentenced to suffer the maximum penalty of DEATH,
and to pay civil indemnity to the heirs of Felipe Lagera and Ramil Tagpis, Jr. in the amount of
Seventy-Five Thousand (₱75,000.00) Pesos for each victim and moral damages in the amount of
Seventy-Five Thousand (₱75,000.00) Pesos to each; and

Pay the Cost.31 (Emphases ours.)

The case was originally elevated to this Court on automatic review and the same was docketed as
G.R. No. 161706.32 The parties, thereafter, submitted their respective appeal briefs. 33 In our
Resolution34 dated July 19, 2005, we ordered the transfer of the case to the Court of Appeals for
appropriate disposition, pursuant to our ruling in People v. Mateo. 35 Before the appellate court, the
case was docketed as CA-G.R. CR.-H.C. No. 00282.

The Court of Appeals promulgated the assailed decision on August 21, 2007, modifying the
judgment of the RTC. The appellate court adopted the position of the Office of the Solicitor General
(OSG) that the felonious acts of the accused-appellant resulted in two separate crimes of murder as
the evidence of the prosecution failed to prove the existence of a complex crime of double murder.
The Court of Appeals subscribed to the findings of the RTC that the killing of Felipe Lagera was
attended by the aggravating circumstances of treachery and evident premeditation. With respect to
the ensuant mitigating circumstances, the Court of Appeals credited the circumstance of voluntary
surrender in favor of the accused-appellant, but rejected the appreciation of intoxication, immediate
vindication of a grave offense and voluntary confession. As for the death of Ranil, the appellate court
also ruled that the same was attended by the aggravating circumstance of treachery and the
mitigating circumstance of voluntary surrender. Thus, the Court of Appeals disposed of the case as
follows:

WHEREFORE, IN VIEW OF THE FOREGOING, the Decision appealed from is hereby MODIFIED.
As modified, accused-appellant is hereby adjudged guilty beyond reasonable doubt for two (2)
counts of murder for the deaths of Felipe Lagera and Ramil Tagpis, Jr., and is hereby sentenced to
suffer the penalty of reclusion perpetua for each count of murder he has committed.

The award of civil indemnity is reduced to ₱50,000.00 for each victim; the award of moral damages
is likewise reduced to ₱50,000.00 for each victim. Further, exemplary damages in the amount of
₱25,000.00 is awarded to the heirs of each victim. 36

The accused-appellant filed a Notice of Appeal37 of the above decision. In a Resolution 38 dated
February 6, 2008, the Court of Appeals ordered that the records of the case be forwarded to this
Court.
On June 18, 2008, we resolved to accept the appeal and required the parties to file their respective
supplemental briefs, if they so desire, within thirty days from notice. 39 Thereafter, both parties
manifested that they were adopting the briefs they filed before the Court of Appeals and will no
longer file their respective supplemental briefs.40

The accused-appellant sets forth the following assignment of errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT

GUILTY BEYOND REASONABLE DOUBT FOR THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE THE MITIGATING

CIRCUMSTANCE OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE IN FAVOR OF
THE ACCUSED-APPELLANT.

III

THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE INTOXICATION AS

A MITIGATING CIRCUMSTANCE IN FAVOR OF THE ACCUSED-APPELLANT.

IV

THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE AGGRAVATING

CIRCUMSTANCES OF DWELLING, ABUSE OF SUPERIOR STRENGTH AND
MINORITY.41

The accused-appellant admits to the killing of Felipe but denies that the crime was committed with
treachery and evident premeditation. He argues that there is doubt as to the presence of treachery
given that there was no eyewitness who categorically stated that the accused-appellant attacked the
victims suddenly, thereby depriving them of the means to defend themselves. He brushed aside the
testimony of Carmela Tagpis, insisting that she was not in a position to say that there was no
altercation between him and Felipe, which could have put the latter on guard. The prosecution
allegedly failed to prove that the accused-appellant intentionally waited for the time when Felipe
would be defenseless before initiating the attack. The fact that he voluntarily surrendered to the
barangay chairperson and the police and admitted the killings supposedly showed that it was not
intentional and he did not consciously adopt the method of attack upon the two victims. The
accused-appellant similarly rejects the finding of the RTC that there was evident premeditation on
his part since the prosecution failed to prove that he deliberately planned the killing of Felipe.

The accused-appellant maintains that at the time of the incident, he was still unable to control his
anger as he just recently discovered that his wife was sexually abused by Felipe and the latter’s son,
Timboy. He also avers that he was a bit intoxicated when the crime took place so that he was not in
total control of himself. He claims that he is not a habitual drinker and that he merely consumed the
alcohol prior to the incident in order to appease his friend. He likewise argues that the aggravating
circumstance of dwelling should not have been appreciated inasmuch as the same was not alleged
in the information. Moreover, the aggravating circumstance of abuse of superior strength cannot be
appreciated since he did not deliberately harm or attack Ranil Tagpis, Jr. and the death of the latter
was accidental. The accused-appellant prays that he should only be found guilty of the crime of
homicide with the mitigating circumstances of voluntary surrender, immediate vindication of a grave
offense and intoxication.

The appeal lacks merit.

Basic is the rule that in order to affirm the conviction of an accused person, the prosecution must
establish his guilt beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces absolute certainty. Only moral certainty is
required, or that degree of proof which produces conviction in an unprejudiced mind. 42 Ultimately,
what the law simply requires is that any proof against the accused must survive the test of reason for
it is only when the conscience is satisfied that the perpetrator of the crime is the person on trial
should there be a judgment of conviction.43 A finding of guilt must rest on the strength of the
prosecution’s own evidence, not on the weakness or even absence of evidence for the defense. 44

In the instant case, the evidence of the prosecution established the fact that the killings of Felipe and
Ranil were attended by treachery, thus qualifying the same to murder.

According to Article 24845 of the Revised Penal Code, as amended, any person who shall kill another
shall be guilty of murder if the same was committed with the attendant circumstance of treachery,
among other things, and that the situation does not fall within the provisions of Article 246. 46 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. 47 The essence
of treachery is a deliberate and sudden attack, offering an unarmed and unsuspecting victim no
chance to resist or to escape. There is treachery even if the attack is frontal if it is sudden and
unexpected, with the victims having no opportunity to repel it or defend themselves, for what is
decisive in treachery is that the execution of the attack made it impossible for the victims to defend
themselves or to retaliate.48

In the case at bar, the RTC gave more weight to the testimony of Carmela Tagpis in establishing the
presence of treachery in the manner with which the accused-appellant carried out the violent killings
of Felipe and Ranil. In this regard, we reiterate the established doctrine articulated in People v. De
Guzman49 that:

In the resolution of the factual issues, the court relies heavily on the trial court for its evaluation of the
witnesses and their credibility. Having the opportunity to observe them on the stand, the trial judge is
able to detect that sometimes thin line between fact and prevarication that will determine the guilt or
innocence of the accused. That line may not be discernible from a mere reading of the impersonal
record by the reviewing court. x x x.50

Moreover, we have oftentimes ruled that the Court will not interfere with the judgment of the trial
court in determining the credibility of witnesses unless there appears in the record some fact or
circumstance of weight and influence which has been overlooked or the significance of which has
been misinterpreted.51

Carmela testified as follows:

PROS. TORREVILLAS:

Q: Do you have a brother named Ranil Tagpis, Jr?

A: Yes sir.

Q: Where is he now?

A: He is dead.

Q: Do you know the circumstance of his death?

A: Yes sir.

Q: Why did he die?

A: Because he was hacked by Bata Endong.

Q: Do you know also your grandfather Felipe Lagera, Jr?

A: Yes sir.

Q: Where is he now?

A: He is dead also.

Q: Why did he die?

A: Because he was hacked by Bata Endong.

Q: Is the person your Bata Endong here in the court room who hacked your brother and your
grandfather?

A: Yes sir.

COURT INTERPRETER:

Witness pointing to a person when asked of his name identified himself as Rosendo
Rebucan.

xxxx

Q: What instrument did the accused use in killing your [brother and] your grandfather?

A: Long bolo, sundang.

Q: Were you able to see that long bolo?

A: Yes sir.

xxxx

Q: Was your grandfather armed that time?

A: He has his own bolo but he placed it on the holder of the long bolo.

Q: Was that long bolo used by your grandfather?

A: No sir.

xxxx

Q: How far were you to the incident, when this hacking incident happened?

A: (witness indicating a distance of about 4 meters).

xxxx

COURT:

Cross.

ATTY. DICO:

Q: You stated awhile ago that your brother Jericho, Bitoy [Ranil] and you and your papo
Felipe were at the house of your papo Felipe?

A: Yes sir.

Q: You mean to say that there were no other persons present in that house other than you
four (4)?

A: Yes sir.

xxxx

Q: So, you were playing that toy camera inside the room of your papo Felipe?

A: No sir, I was playing then at the side of the chicken cage.

Q: Is that chicken cage was inside or outside the house of your papo Felipe’s house?

A: Inside the house of my grandfather.

xxxx

Q: Was your brother Ranil carried by your grandfather Felipe?

A: Yes sir.

He was carried by his right arm.

Q: So, you mean to say that your uncle Endo went inside, it was so sudden?
 A: Yes sir.

Q: Because it was sudden, you were not able to do anything, what did you do?

A: I then cried at that time.

xxxx

Q: But you are sure that when your uncle Endo entered as you said that your brother Ramil
was carried by your papo Felipe?

A: Yes sir.

Q: Did your uncle Endo and your papo Felipe fight or was there an altercation?

A: No sir.52

As can be gleaned from the above testimony, Carmela firmly and categorically pointed to the
accused-appellant as the person who entered the house of Felipe. She clearly stated that the attack
was not preceded by any fight or altercation between the accused-appellant and Felipe. Without any
provocation, the accused-appellant suddenly delivered fatal hacking blows to Felipe. The abruptness
of the unexpected assault rendered Felipe defenseless and deprived him of any opportunity to repel
the attack and retaliate. As Felipe was carrying his grandson Ranil, the child unfortunately suffered
the same fatal end as that of his grandfather. In the killing of Ranil, the trial court likewise correctly
appreciated the existence of treachery. The said circumstance may be properly considered, even
when the victim of the attack was not the one whom the defendant intended to kill, if it appears from
the evidence that neither of the two persons could in any manner put up defense against the attack
or become aware of it.53 Furthermore, the killing of a child is characterized by treachery even if the
manner of assault is not shown. For the weakness of the victim due to his tender years results in the
absence of any danger to the accused.54

Although the accused-appellant painted a contrasting picture on the matter, i.e., that the attack was
preceded by a fight between him and Felipe, the Court is less inclined to be persuaded by the
accused-appellant’s version of the events in question. Indeed, the Court has ruled that the testimony
of children of sound mind is "more correct and truthful than that of older persons" and that "children
of sound mind are likely to be more observant of incidents which take place within their view than
older persons, and their testimonies are likely more correct in detail than that of older persons." 55 In
the instant case, Carmela was cross-examined by the defense counsel but she remained steadfast
and consistent in her statements. Thus, the Court fails to see any reason to distrust the testimony of
Carmela.

Incidentally, the testimony of the accused-appellant not only contradicts that of Carmela, but some
portions thereof do not also conform to the documentary evidence admitted by the trial court. The
testimony of Dr. Profetana and the sketch of the human anatomy of Felipe, which was marked as
Exhibit B for the prosecution, stated that Felipe sustained three hacking wounds that were found on
his right arm, at his "nose maxillary area" 56 and on his left arm. On the other hand, the accused-
appellant testified that he delivered four hacking blows on Felipe, the three of which landed on the
left side of the victim’s abdomen, the right side of his neck and on his upper left arm. When
confronted on the said apparently conflicting statements, the accused-appellant did not offer any
explanation.57
Therefore, on the strength of the evidence of the prosecution, we sustain the ruling of the RTC and
the Court of Appeals that the circumstance of treachery qualified the killings of Felipe and Ranil to
murder.

The Court finds erroneous, however, the trial court’s and the Court of Appeals’ appreciation of the
aggravating circumstance of evident premeditation. For evident premeditation to aggravate a crime,
there must be proof, as clear as the evidence of the crime itself, of the following elements: (1) the
time when the offender determined to commit the crime; (2) an act manifestly indicating that he clung
to his determination; and (3) sufficient lapse of time, between determination and execution, to allow
himself to reflect upon the consequences of his act.58 It is not enough that evident premeditation is
suspected or surmised, but criminal intent must be evidenced by notorious outward acts evidencing
determination to commit the crime. In order to be considered an aggravation of the offense, the
circumstance must not merely be "premeditation"; it must be "evident premeditation." 59 In the case at
bar, the evidence of the prosecution failed to establish any of the elements of evident premeditation
since the testimonies they presented pertained to the period of the actual commission of the crime
and the events that occurred thereafter. The prosecution failed to adduce any evidence that tended
to establish the exact moment when the accused-appellant devised a plan to kill Felipe, that the
latter clung to his determination to carry out the plan and that a sufficient time had lapsed before he
carried out his plan.

Likewise, the trial court erred in appreciating the aggravating circumstances of abuse of superior
strength, dwelling, minority and intoxication. When the circumstance of abuse of superior strength
concurs with treachery, the former is absorbed in the latter. 60 On the other hand, dwelling, minority
and intoxication cannot be appreciated as aggravating circumstances in the instant case considering
that the same were not alleged and/or specified in the information that was filed on January 23,
2003. Under the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, a
generic aggravating circumstance will not be appreciated by the Court unless alleged in the
information. This requirement is laid down in Sections 8 and 9 of Rule 110, to wit:

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.

SEC. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense
and the qualifying and aggravating circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment.

With regard to the conflicting rulings of the RTC and the Court of Appeals vis-à-vis the nature of
crimes committed, we agree with the appellate court that the accused-appellant should be held liable
for two (2) separate counts of murder, not the complex crime of double murder.

Article 48 of the Revised Penal Code provides that "[w]hen 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."
There are, thus, two kinds of complex crimes. The first is known as compound crime, or when a
single act constitutes two or more grave or less grave felonies. The second is known as complex
crime proper, or when an offense is a necessary means for committing the other. 61
The Court finds that there is a paucity of evidence to prove that the instant case falls under any of
the two classes of complex crimes. The evidence of the prosecution failed to clearly and indubitably
establish the fact that Felipe and Ranil were killed by a single fatal hacking blow from the accused-
appellant. The eyewitness testimony of Carmela did not contain any detail as to this material fact. To
a greater degree, it was neither proven that the murder of Felipe was committed as a necessary
means for committing and/or facilitating the murder of Ranil and vice versa. As the factual milieu of
the case at bar excludes the application of Article 48 of the Revised Penal Code, the accused-
appellant should be made liable for two separate and distinct acts of murder. In the past, when two
crimes have been improperly designated as a complex crime, this Court has affirmed the conviction
of the accused for the component crimes separately instead of the complex crime. 62

In the determination of the penalty to be imposed on the accused-appellant, we uphold the trial
court’s ruling that the mitigating circumstance of voluntary surrender should be appreciated. For
voluntary surrender to mitigate criminal liability, the following elements must concur: (1) the offender
has not been actually arrested; (2) the offender surrenders himself to a person in authority or to the
latter’s agent; and (3) the surrender is voluntary. 63 To be sufficient, the surrender must be
spontaneous and made in a manner clearly indicating the intent of the accused to surrender
unconditionally, either because they acknowledge their guilt or wish to save the authorities the
trouble and the expense that will necessarily be incurred in searching for and capturing them. 64 The
accused-appellant has duly established in this case that, after the attack on Felipe and Ranil, he
surrendered unconditionally to the barangay chairperson and to the police on his own volition and
before he was actually arrested. The prosecution also admitted this circumstance of voluntary
surrender during trial.

We reject, however, the accused-appellant’s contention that the trial court erred in failing to
appreciate the mitigating circumstances of intoxication and immediate vindication of a grave offense.

The third paragraph of Article 15 of the Revised Penal Code provides that the intoxication of the
offender shall be taken into consideration as a mitigating circumstance when the offender has
committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to
commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance. The Court finds that the accused-appellant is not entitled to the mitigating
circumstance of intoxication since his own testimony failed to substantiate his claim of drunkenness
during the incident in question. During his cross-examination, the accused-appellant himself
positively stated that he was only a bit tipsy but not drunk when he proceeded to the house of
Felipe.65 He cannot, therefore, be allowed to make a contrary assertion on appeal and pray for the
mitigation of the crimes he committed on the basis thereof.

As regards the mitigating circumstance of immediate vindication of a grave offense, the same cannot
likewise be appreciated in the instant case. Article 13, paragraph 5 of the Revised Penal Code
requires that the act be "committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted
brothers or sisters, or relatives by affinity within the same degrees." The established rule is that there
can be no immediate vindication of a grave offense when the accused had sufficient time to recover
his equanimity.66 In the case at bar, the accused-appellant points to the alleged attempt of Felipe and
Timboy Lagera on the virtue of his wife as the grave offense for which he sought immediate
vindication. He testified that he learned of the same from his stepson, Raymond, on November 2,
2002. Four days thereafter, on November 6, 2002, the accused-appellant carried out the attack that
led to the deaths of Felipe and Ranil. To our mind, a period of four days was sufficient enough a time
within which the accused-appellant could have regained his composure and self-control. Thus, the
said mitigating circumstance cannot be credited in favor of the accused-appellant.
Article 248 of the Revised Penal Code, as amended, prescribes the penalty of reclusion perpetua to
death for the crime of murder. In this case, apart from the qualifying circumstance of treachery, the
prosecution failed to prove the existence of any other aggravating circumstance in both the murders
of Felipe and Ranil. On the other hand, as the presence of the lone mitigating circumstance of
voluntary surrender was properly established in both instances, Article 63, paragraph 3 of the
Revised Penal Code67 mandates that the proper penalty to be imposed on the accused-appellant is
reclusion perpetua for each of the two counts of murder.

Anent the award of damages, when death occurs due to a crime, the following may be recovered: (1)
civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral
damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest, in
proper cases.68

The RTC awarded in favor of the heirs of Felipe and Ranil the amounts of ₱75,000.00 as civil
indemnity and ₱75,000.00 as moral damages for each set of heirs. The Court of Appeals, on the
other hand, reduced the aforesaid amounts to ₱50,000.00 and further awarded the amount of
₱25,000.00 as exemplary damages to the heirs of the victim.

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than
the commission of the crime.69 Similarly, moral damages may be awarded by the court for the mental
anguish suffered by the heirs of the victim by reason of the latter’s death. The purpose for making
such an award is not to enrich the heirs of the victim but to compensate them for injuries to their
feelings.70 The award of exemplary damages, on the other hand, is provided under Articles 2229-
2230 of the Civil Code, viz:

Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the
public good, in addition to the moral, temperate, liquidated or compensatory damages.

Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed
when the crime was committed with one or more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to the offended party.

In People v. Dalisay,71 the Court clarified that "[b]eing corrective in nature, exemplary damages,
therefore, can be awarded, not only in the presence of an aggravating circumstance, but also where
the circumstances of the case show the highly reprehensible or outrageous conduct of the offender.
In much the same way as Article 2230 prescribes an instance when exemplary damages may be
awarded, Article 2229, the main provision, lays down the very basis of the award." 72

Thus, we affirm the Court of Appeals’ award of ₱50,000.00 as civil indemnity and ₱50,000.00 as
moral damages. The award of exemplary damages is, however, increased to ₱30,000.00 in
accordance with the prevailing jurisprudence. As held in People v. Combate, 73 when the
circumstances surrounding the crime call for the imposition of reclusion perpetua only, the proper
amounts that should be awarded are ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages
and ₱30,000.00 as exemplary damages.

In lieu of actual or compensatory damages, the Court further orders the award of ₱25,000.00
temperate damages to the heirs of the two victims in this case. The award of ₱25,000.00 for
temperate damages in homicide or murder cases is proper when no evidence of burial and funeral
expenses is presented in the trial court. Under Article 2224 of the Civil Code, temperate damages
may be recovered, as it cannot be denied that the heirs of the victim suffered pecuniary loss,
although the exact amount was not proven. 74
WHEREFORE, the Court hereby AFFIRMS with MODIFICATION the Decision dated August 21,
2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00282. The accused-appellant Rosendo
Rebucan y Lamsin is found GUILTY of two (2) counts of murder for the deaths of Felipe Lagera and
Ranil Tagpis, Jr. and is hereby sentenced to suffer the penalty of reclusion perpetua for each count.
The accused-appellant is further ordered to indemnify the respective heirs of the victims Felipe
Lagera and Ranil Tagpis, Jr. the amounts of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral
damages, ₱30,000.00 as exemplary damages and ₱25,000.00 as temperate damages for each
victim, plus legal interest on all damages awarded at the rate of 6% from the date of the finality of
this decision. No costs.

SO ORDERED.

G.R. No. 192790, August 01, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. YOLANDO LIBRE ALIAS "NONOY," Accused-

Appellant.

DECISION

PERALTA, J.:

Before this Court is an appeal via Rule 45 from the Decision dated April 27, 2010 of the Court of Appeals in
CA-G.R. CR-HC No. 00089-MIN1, affirming in toto the Decision dated January 18, 2000 of the Regional Trial
Court (RTC), Panabo, Davao, Branch 34, convicting appellant Yolando Libre of murder and frustrated
murder.

On February 9, 1995, four (4) Informations were filed, accusing accused-appellant Yolando Libre alias
"Nonoy" and accused Albino Caman and Flora Encabo Vda. de Lumidas of murder and frustrated murder.
The Informations alleged -

Criminal Case No. 95-21 for Murder2

That on or about November 25, 1994, in the Municipality of Sto. Tomas, Province of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping with one another, with treachery and evident premeditation, with intent to kill, armed with
a Garand rifle and a revolver, did then and there wilfully (sic), unlawfully and feloniously attack, assault and
shoot one Rodel Barte, thereby inflicting upon him wounds which caused his death, and further causing
actual, moral and compensatory damages to the heirs of the victim. CONTRARY TO LAW.

Criminal Case No. 95-22 for Murder3

That on or about November 25, 1994, in the Municipality of Sto. Tomas, Province of Davao, Philippines, and
within the jurisdiction of this Honorable court, the above-named accused, conspiring, confederating and
mutually helping one another, with treachery and evident premeditation, with intent to kill, armed with a
Garand rifle and a revolver, did then and there wilfully, unlawfully and feloniously attack, assault and shoot
one Joselito Barte, thereby inflicting upon him wounds which caused his death, and further causing actual,
moral and compensatory damages to the heirs of the victim.

CONTRARY TO LAW.

Criminal Case No. 95-23 for Frustrated Murder 4

That on or about November 25, 1994, in the Municipality of Sto. Tomas, Province of Davao, Philippines, and
within the jurisdiction of this Honorable court, the above-named accused, conspiring, confederating and
mutually helping one another, with treachery and evident premeditation, with intent to kill, armed with a
Garand rifle and a revolver, did then and there wilfully, unlawfully and feloniously attack, assault and shoot
one Ruben Barte, thereby inflicting upon him wounds which would have caused his death, thus the accused
performed all the acts of execution which would have produced the crime of murder, as a consequence but
which, nevertheless, did not produce it by reasons of causes independent of the will of the accused, that is,
by the timely and able medical assistance rendered to said Ruben Barte, and further causing actual, moral
and compensatory damages to the offended party.

CONTRARY TO LAW.

Criminal Case No. 95-25 for Frustrated Murder 5

That on or about November 25, 1994, in the Municipality of Sto. Tomas, Province of Davao, Philippines, and
within the jurisdiction of this Honorable court, the above-named accused, conspiring, confederating and
mutually helping one another, with treachery and evident premeditation, with intent to kill, armed with a
Garand rifle and a revolver, did then and there wilfully, unlawfully and feloniously attack, assault and shoot
one Renante Barte, thereby inflicting upon him wounds which would have caused his death, thus the
accused performed all the acts of execution which would have produced the crime of murder, as a
consequence but which, nevertheless, did not produce it by reason of causes independent of the will of the
accused, that is, by the timely and able medical assistance rendered to said Renante Barte, and further
causing actual, moral and compensatory damages to the offended party.

CONTRARY TO LAW.
On February 16, 1996, upon arraignment, all three (3) accused pleaded not guilty. Joint trial ensued.

On January 7, 1997, however, during the pendency of these cases, accused Albino Caman while attempting
to escape, was shot by provincial prison guards which resulted in his death. Consequently, on January 21,
1997, by reason of his death, the criminal cases against him were dismissed. 6 chanrobleslaw

The facts are as follows:

In the evening of November 25, 1994, prosecution witness Lucy Sabando (Lucy), together with her
chanRoblesvirtualLawlibrary

husband, Edwin, and their child, were visited in their home by three (3) persons, whom she later identified
as accused Albino Caman (Caman), a member of the Citizen's Armed Forces Geographical Unit (CAFGU),
accused-appellant Yolando Libre (Libre), and accused Flora Encabo (Encabo). The three accused told her
that they were confused as to the direction of the house of Ruben Barte (Ruben), who was known to be a
member of the New People's Army (NPA). They suddenly pushed the door of her house and ordered them to
accompany them to Ruben's house. She noticed that each of them was carrying a firearm. One was a long
firearm and the rest were short firearms. Her husband, while carrying their child, was the one who led the
group to Ruben's house which was about two (2) kilometers away. Since they were not carrying any lamp, it
took them about thirty minutes to reach their destination. In the meantime, while they were walking,
accused ordered Lucy to call out Ruben when they reach the latter's house and ask for medicine for her
child. 7 chanrobleslaw

When they reached Ruben's house, Lucy called out asking for medicine for her supposed sick child. Ruben,
while holding a lamp, went out of his house to see who was calling. 8 It was then that one of the male
accused rushed towards Ruben. Lucy later testified that the one who was carrying a short firearm was the
one who rushed towards Ruben. She likewise testified that immediately after the accused and Ruben started
"pulling" each other, she grabbed her husband and ran away. When they were about 250 meters away, she
heard several gunshots.

Ruben testified that at about 9 o'clock in the evening of November 25, 1994, while he was inside their house
together with his wife and children, he heard a woman's voice asking for medicine for a sick child. He
recognized the voice to be that of Lucy. When he opened the door, he was suddenly attacked by accused
Caman who was then carrying a gun which he thought was an M-14. He likewise saw accused-appellant
Libre bringing a .38 caliber handgun. Caman then shot him at the back and thereafter began firing at his
family who were then sleeping. The strafing lasted for about 30 minutes. 9 Meanwhile, immediately after
Caman shot Ruben, the latter took cover near their house post and was able to crawl out of the house and
escape. While escaping, he heard one of the accused saying "Buhi pa ba rial" (Is he still alive") and the
other one answered: "Mabuhi pay pino pa sa bugas." (an idiom to mean that no one could survive with the
strafing).10 He then went to the house of SPO4 Ernesto Evangelista, which was about a half kilometer away.
He told SPO4 Evangelista that they were strafed. He thereafter fell unconscious and was later taken to
Tagum for treatment of his injuries.

Ruben likewise testified that he did not know the motive of the attack but he testified that he had previous
incident with Yolando Libre who challenged him to a fight with a bolo. He likewise testified that albeit he did
not know Albino Caman, he knew that the latter was a member of the CAFGU and used to rove around their
place. He also knew that Albino Caman and Yolando Libre were compadres.11 chanrobleslaw

SPO4 Ernesto Evangelista testified that at about 9 o'clock in the evening of November 25, 1995, he was
awakened by Ruben who informed him that his house was strafed by unidentified persons. While his house
was only a half kilometer away from Ruben's, he did not hear the gunfire as he was asleep. He noticed that
Ruben was hit and bloody. He then called the police station and requested assistance to investigate the
incident. At about 10 o'clock that night, the PNP Group, consisting of about ten police officers, led by the
chief of Police, Elmer Royo, went to the crime scene. There they discovered that Juanita had one gunshot
wound and several of the children were also hit. They noticed that the house was hit by several bullets and a
number of empty shells of Garand rifle and .38 caliber revolver were recovered in the premises. Thereafter,
they brought Juanita and the wounded children to the Davao Medical Hospital. 12 chanrobleslaw

Among the seven children, three (3) were shot. Renante Barte, who was then thirteen (13) years old, was
shot in his left buttock and was confined at the Davao Regional Hospital for five (5) days and was
recommended by the medical officer for medical attendance for 30-45 days barring complications. Joselito
Barte, who was then eleven (11) years old, was pronounced dead on arrival and the cause of death was:
"Hemorrhagic shock sec. to gunshot wound at the right inguinal point of entrance towards the right buttocks
point of exit. " Rodel Barte, who was then 1 year and 3 months old, was likewise hit and the medical finding
was: "gunshot wound buttock, bilateral with massive tissue loss" and the medical operation performed was
a "wide excision of gunshot buttocks proximal diverting loop colostomy." He died four (4) days after he was
confined in the Davao Regional Hospital.

Juanita Barte testified that when her husband went outside to answer Lucy's call for help, she suddenly
heard gunshots and learned that Ruben was hit. She then started crying and shouted: "Do not shoot us
because we have children" but the firing still continued. So she gathered her children and embraced them
all. She later identified accused Albino Caman, Yolando Libre, and Flora Encabo as the assailants. She could
see their faces because of the lamp which was carried by Ruben. She was wounded on her right leg and
right elbow.

For the defense, Flora testified that accused-appellant Libre was her common-law husband and they started
living together in 1993. She likewise testified that she did not know Albino Caman and that she only met
him in the evening of November 25, 1994. At about 9 o'clock in the evening, Caman allegedly went to their
house and asked her husband the directions to the house of Ruben. Her husband allegedly did not want to
accompany Caman as it was already dark. Caman got mad, and with "blazing" eyes, poked his gun at Libre
and forced them to go out and accompany him to Ruben's house. She knew the Bartes by name and face
and she also knew where their house was. While they were walking, they were allegedly pushed by Caman
and were allegedly told not to tell anyone including the police. She likewise testified that they did not stop at
Ruben's house but instead passed by it as they were allegedly afraid at what Caman might do to Ruben and
to them. Then, Caman asked them what place they were in already, and she answered that she did not
know. When Caman turned to his left, he saw a lighted house and ordered Flora to wake the people inside.
It turned out to be Lucy Sabando's house. As she refused Caman's orders, the latter himself woke the
people inside the house and asked for the direction of Ruben Barte's house. Lucy Sabando then woke her
husband, who told Caman that he will guide them to Barte's house. Together with Lucy and her husband,
they turned back to where they came from to proceed to Ruben's house. She further testified that they
could not run as Caman was allegedly holding her shoulder while his gun was pointed at her husband. She
further testified that she and her husband ran to the cogon area when the commotion started and it was
there that she heard the gunshots.

Yolando Libre, for his part, denied having any participations in the strafing. He testified that he knew Albino
Caman as a member of the CAFGU and he used to see him wearing a "fatigue" uniform and fully packed
with firearms. He was not close to Albino Caman and did not have any previous conversation with him. He
testified that at around 9 o'clock in the evening of November 25, 1994, Albino Caman went to their house
and asked for the directions of Ruben Barte's house. Albino Caman allegedly smelled of liquor and had
reddish eyes. Yolando Libre knew Ruben's house, however, he refused to accompany Albino as it was
already dark. This seemed to infuriate Albino Caman who then cocked his rifle and poked it at him while
commanding them to accompany him to Ruben's house. Libre testified that he intentionally misled Albino
Caman and so they were able to proceed to the house of Lucy and Edwin Sabando instead and it was
already the latter who led them to Ruben Barte's house. Yolando Libre testified that he was familiar with
Barte's house as he always passed by it when gathering firewood. He however denied having a grudge
against him.
On January 18, 2000, the court a quo rendered its Decision,13 to wit: ChanRoblesVirtualawlibrary

Wherefore, the Court sentences the accused Yolando Libre, to suffer the following penalties.

In Crim. Case No. 95-21, he is sentenced to suffer the penalty of reclusion perpetua and is ordered to pay
the heirs of Rodel Barte the sum of P50,000.00 for indemnity ex delicto and P50,000.00 for moral damages
and P50,000.00 for exemplary damages.

In Crim Case No. 95-22, he is sentenced to suffer the penalty of reclusion perpetua and is directed to pay
the heirs of Joselito Barte the sum of P50,000.00 as indemnity ex delicto, moral damages of P50,000.00 and
exemplary [damages] of P50,000.00.

In Crim. Case No. 95-23, he is sentenced to suffer the penalty of imprisonment from 10 years and 8 months
to 20 years and to pay Ruben Barte the sum of P20,000.00 as indemnity ex delicto, PI 0,000.00 moral
damages and PI 0,000.00 as exemplary damages.

In Crim. Case No. 95-25, he is sentenced to suffer the penalty of imprisonment from 10 years and 8 months
to 20 years and to pay Renante Barte the sum of P20,000.00 as indemnity ex delicto, PI 0,000.00, [as]
moral damages and PI0,000.00 as exemplary damages.

In all of these cases, he shall also suffer all the accessory penalties provided for by law. He should be
credited with the period of his detention pending termination of these cases.

The accused, Flora Encabo, is acquitted in Crim. Cases [No.] 95-21, 95-22, 95-23 and 95-25 for want of
proof beyond reasonable doubt as to her.

SO ORDERED.
Accused-appellant Libre appealed before the Court of Appeals.

On April 27, 2010, in its disputed Decision, the Court of Appeals dismissed the appeal for lack of merit and
the appealed decision of the trial court was affirmed in toto.

Hence, this appeal, with the following issues:

chanRoblesvirtualLawlibrary

I
THE LOWER COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT YOLANDO LIBRE GUILTY BEYOND
REASONABLE DOUBT DESPITE THE INSUFFICIENCY OF EVIDENCE AGAINST HIM AND THAT THE EVIDENCE
IS WANTING AS TO HIS ALLEGED CONSPIRACY WITH HIS CO-ACCUSED.

II

THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING ACCUSED-APPELLANT DESPITE THE
CONTRADICTORY TESTIMONIES OF THE PROSECUTION WITNESSES.

III

ASSUMING THAT ACCUSED-APPELLANT CONSPIRED WITH CAMAN IN PERPETRATING THE CRIME, THE
LOWER COURT GRAVELY ERRED IN APPRECIATING AGAINST ACCUSED-APPELLANT THE CIRCUMSTANCES
OF TREACHERY, EVIDENT PREMEDITATION, NIGHTTIME, AND ABUSE OF SUPERIOR STRENGTH.
Appellant claims that the trial court erred in relying on the prosecution witnesses' identification of the
perpetrators considering that the affidavits of the witnesses were inconsistent on their identities.

The appeal has no merit.

Time and again, this Court held that when the issues revolve on matters of credibility of witnesses, the
findings of fact of the trial court, its calibration of the testimonies of the witnesses, and its assessment of the
probative weight thereof, as well as its conclusions anchored on said findings, are accorded high respect, if
not conclusive effect. This is so because the trial court has the unique opportunity to observe the demeanor
of witnesses and is in the best position to discern whether they are telling the truth. Moreover, credibility, to
state what is axiomatic, is the sole province of the trial court. In the absence of any clear showing that it
overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that would
have affected the result of the case, as in this case, the trial court's findings on the matter of credibility of
witnesses will not be disturbed on appeal.14 chanrobleslaw

The affirmance by the Court of Appeals of the factual findings of the trial court places this case under the
rule that factual findings are final and conclusive and may not be reviewed on appeal to this Court. No
reason has been given by appellant to deviate from the factual findings arrived at by the trial court as
affirmed by the Court of Appeals.15 chanrobleslaw

Given the foregoing, there is no doubt that prosecution witnesses, Lucy Sabando, Ruben Barte and Juanita
Barte, have sufficiently established the identities of appellants as the perpetrators of the strafing incident. It
should be noted that two of the prosecution witnesses, i.e., Ruben and Juanita were victims of the strafing.
Ruben and Juanita clearly saw the perpetrators with their firearms as there was illumination coming from
the lamp carried by Ruben. To wit: ChanRoblesVirtualawlibrary

  Cross-examination of Ruben Barte by Atty. Evanzelio:

   
Q You said sometime in November 25, 1994 at around 9:30 P.M. there
was a person calling your name, is that correct? Ma'am.
A Yes
   
Q Was that a voice of a woman or a male?
A A woman.
   
Q And that was the voice of Sabando?
A Yes Ma'am.
   
Q What is your encounter of Sabando, you are familiar with her voice?
A Because we were just living near.
   
Q You mean your house are near each other?
A Yes Ma'am..
   
Q You said you recognize the voice of Lucy Sabando but you did not see
her face at that time.
A I know her voice and after that I took the lamp to see her face.
   
Q And now the lamp you use is a small lamp.
A Yes Ma'am.
   
Q Lucy Sabando has several companion that time.
A Yes Ma'am.
   
Q How many are they?
A They were five (5).
   
Q Do you recognize the faces of those persons.
A Yes Ma'am.
   
Q And the basis of your seeing the faces is the small lamp?
A Yes Ma'am.
   
Q But outside your house it was dark.
A Yes Ma'am.
   
Q Your distance from Lucy Sabando is about 10 to 20 meters.
A Yes Ma'am.
   
Q What about the other person also 20 meters .
A About 10 meters.
   
Q And the only way that you recognize was the small lamp.
A When I raised the lamp I recognized their faces.
   
Q But yet you are still 10 meters away from them.
A We are also near each other like this.
   
Q You said that several persons were pulling you, is that correct?
A Yes Ma'am.
   
Q How many are they.
A Three (3) of them.
   
Q And you were already holding a lamp?
A Yes Ma'am.
   
Q They were pulling you while you were holding a lamp.
A Yes Ma'am.
   
Q At the same time your wife also pulling you.
A Yes Ma'am.
   
Q You still holding the lamp?
A It was already put off.
   
Q The light was put off before you have seen their faces. Pros. Gonzales:
   
  Misleading the testimony is - he recognized their faces when the light
was already off.
   
Atty. Evangelio:
   
  Yes, you Honor I withdraw the question.
   
Q You said that you were being pulled by three (3) persons while your
wife was also pulling you, and you were successfully pulled by your
wife.
A Yes Ma'am.
   
Q You already recognize the uniform of the person and not their faces.
A I know the uniform.
   
Q But the face you are not familiar.
A I know them before.
   
xxxx
   
Q How did you know that Caman and Libre are compadres?
A They are close to each other and compadres.
   
Q You said you are neighbors with Caman and Libre, is that correct?
A This Caman and Libre is about 3 meters.
   
Q And yet you considered as neighbors.
A That the two (2) men are far and only Lucy is my neighbor.
   
Q You mean to tell us you saw these persons of that incident on
November 25, 1994 .
A I saw them several times.
   
Q Tell us in what occasion?
A This Albino is a Cafgu and used to robe.
   
Q And he used to robe to your place.
A Yes always.
   
xxxx
   
Q Tell us your relationship with Caman purely an acquaintance.
A We are not close with each other.
   
Q But you have no disagreement or arguments with each other.
A None.
   
Q How about Libre do you have an argument?
A We have a grudge with Libre.
   
Q And it happens when? -
A It was long ago.
   
xxxx16
Lucy, on cross-examination, testified that while she did not see the faces of the perpetrators who went to
their house, she confirmed that the perpetrators were two (2) men and recognized a voice belonging to a
woman.17 Lucy testified that Caman and Libre were each carrying a firearm, a long and short one,
respectively.18 Such testimony coincides with Ruben Barte's testimony that Albino Caman was carrying an M-
14 rifle, while Yolando Libre carried a .38 caliber handgun.19 It was likewise established that the police
officers found that Ruben Barte's house was hit by several bullets and discovered empty shells of both a
Garand rifle and a .38 caliber handgun within the premises, thereby indicating that both guns were fired.

Jurisprudence tells us that where there is no evidence that the witnesses of the prosecution were actuated
by ill motive, it is presumed that they were not so actuated and their testimony is entitled to full faith and
credit. In the present case, no imputation of improper motive on the part of the prosecution witnesses was
ever made by appellant.20 chanrobleslaw

There is no reason to doubt Ruben and Juanita Barte's identification of the accused considering that: first,
Ruben was carrying a lamp when he went out of their house to answer Lucy's call; 21second, He recognized
their faces as there was just a distance of 10 meters between Ruben Barte and the perpetrators; 22third,
Ruben saw that it was Caman who pulled and shot him at the back and then strafed his house; 23fourth,
Ruben likewise saw Libre holding a .38 caliber gun; and, above all, Ruben Barte and Juanita Barte positively
identified both Caman and Libre in open court as one of those responsible for the strafing of their
house.24 Such open court declaration is much stronger than their affidavits/sworn statements. 25 cralawredchanrobleslaw

Again, the prosecution witnesses were not only the victims but also the parents of the deceased victims.
Being the aggrieved parties, they all desire justice for what had happened to them; thus, it is unnatural for
them to falsely accuse someone other than the real culprits. Otherwise stated, it is very unlikely for these
prosecution witnesses to implicate an innocent person to the crime. It has been correctly observed that the
natural interest of witnesses, who are relatives of the victims, more so, being victims themselves, in
securing the conviction of the guilty would deter them from implicating persons other than the culprits, for
otherwise, the culprits would gain immunity. 26chanrobleslaw

The positive assertions of prosecution witnesses and the negative averments of the accused, the former
undisputedly deserve more credence and are entitled to greater evidentiary weight. 27 Experience dictates
that precisely because of the unusual acts of violence committed right before their eyes, eyewitnesses can
remember with a high degree of reliability the identity of the criminals at any given time. Hence, as in this
case, the proximity and attention afforded the witnesses, coupled with the relative illumination of the
surrounding area, bolster the credibility of identification of the accused-appellants. 28
chanrobleslaw

Libre's claim that he was not one of the perpetrators considering that he and his wife allegedly left the scene
of the crime as soon as they heard gunshots has no ground to stand on. For alibi to prosper, it is not enough
to prove that appellant was somewhere else when the crime was committed; he must also demonstrate that
it was physically impossible for him to have been at the scene of the crime at the time of its commission.
Unless substantiated by clear and convincing proof, such defense is negative, self-serving, and undeserving
of any weight in law. Denial, like alibi, as an exonerating justification, is inherently weak and if
uncorroborated regresses to blatant impotence. Like alibi, it also constitutes self-serving negative evidence
which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify
on affirmative matters.

In this case, the defense failed to establish that it was physically impossible for Libre to have been at the
scene of the crime at the time of its commission. In fact, Libre testified that he came along with Caman
about the same time of the crime, albeit on gun-point, but claimed to flee with his wife as soon as gunshots
started. Thus, from Libre's testimony, he was within the vicinity of Barte's house about the same time that
the crime was committed. To reiterate, for the defense of alibi to prosper, the accused must prove (a) that
he was present at another place at the time of the perpetration of the crime, and (b) that it was physically
impossible for him to be at the scene of the crime. These, the defense failed to do.

Furthermore, such claim of Libre that they fled as soon as Caman started firing his gun is very easy to
concoct in view of Caman's death29 since the latter can no longer belie his allegation. It must be noted,
however, that there were empty shells of .38 caliber revolver and empty shells of garand rifle recovered in
the surrounding of the premises where the crime was committed. It could then be inferred that there were
at least two (2) guns used in the shooting. It is hard, therefore, to imagine that there was just one
perpetrator holding a .38 caliber revolver and a Garand rifle. Thus, Libre's defense of denial and alibi cannot
prevail over the witnesses' positive identification of him as one of the perpetrators.

We likewise affirm the findings of both the RTC and the CA that treachery and evident premeditation
attended the killing.

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 essence of treachery is
that the attack comes without a warning and in a swift, deliberate, and unexpected manner, affording the
hapless, unarmed, and unsuspecting victim no chance to resist or escape. Otherwise stated, an unexpected
and sudden attack which renders the victim unable and unprepared to put up a defense is the essence of
treachery.

In this case, the records show that the attack was well-planned and the series of events that transpired
clearly established conspiracy among them. First, the perpetrators undoubtedly acted in concert as they
went to the house of Ruben together, each with his own firearms; Second, the perpetrators used Lucy
Sabando and her child to trick Ruben and ensure that he will come out of the house clueless to their
presence; Third, after a moment of struggling, Caman immediately shot Ruben Barte at the back; Fourth,
perpetrators simultaneously strafed Barte's house for a long period to ensure that those inside the house are
likewise killed; Fifth, despite Juanita Barte's plea to stop shooting as there were children with them, the
shooting continued thus manifesting clear intent to kill; and Sixth, when they ceased firing, they rested at
the same time and fled together. The suddenness and unexpectedness of the assault deprived the victims of
an opportunity to resist it or offer any defense of their persons. The victims were unaware that they would
be attacked by accused with a hail of bullets from their firearms. In fact, they were already in bed when
Lucy Sabando called for help which prompted Ruben Barte to come out of the house. Hence, the subsequent
shooting was deliberate, unexpected, swift and sudden which foreclosed any escape, resistance or defense
coming from the victims.

Likewise, the prosecution sufficiently established the attending circumstance of evident premeditation. To
prove this aggravating circumstance, the prosecution must show the following: (1) the time when the
offender determined to commit the crime; (2) an act manifestly indicating that the offender clung to his
determination; and (3) a lapse of time, between the determination to commit the crime and the execution
thereof, sufficient to allow the offender to reflect upon the consequences of his act. The fact that they asked
Lucy Sabando to lead them to Barte's house, and on a 2-kilometer walk, showed their determination to
commit the crime and clung to it all the time they were on the way to Barte's house.

Thus, treachery and evident premeditation attended the commission of the crime, qualifying the killing of
Barte's children as murder.30 The court, therefore, affirms the decision of the trial court and the appellate
court, in convicting accused-appellant of two (2) separate crimes of murder for the death of Rodel Barte and
Joselito Barte. Likewise, accused-appellant is liable for two (2) separate crimes of frustrated murder, the
victims Ruben Barte and Renante Barte having survived their wounds due to the timely medical intervention.
Had it not been for said medical intervention, Ruben Barte and Renante Barte could have died.

Penalty

Under Article 248 of the Revised Penal Code, the penalty for the crime of murder is reclusion perpetua to
death.31 With both penalties being indivisible and there being no aggravating circumstance other than the
qualifying circumstances of treachery and evident premeditation, the lower of the two penalties, which
is reclusion perpetua, was properly imposed on the accused-appellant for each count of murder. However,
Libre is not eligible for parole under the provisions of the Indeterminate Sentence Law. 32
chanrobleslaw
As to the frustrated murders, the penalty lesser by one degree shall be imposed on appellant. Thus, the
penalty that must be imposed is reclusion temporal for each count of frustrated murder. Applying the
Indeterminate Sentence Law and in the absence of modifying circumstances other than the qualifying
circumstance of treachery and evident premeditation, the maximum penalty shall be taken from the medium
period of reclusion temporal, which has a range of 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 from six (6) years, one (1) day to
twelve (12) years. The prison term imposed on appellant must, therefore, be modified to six (6) years and
one (1) day of prison mayor minimum as the minimum penalty to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal medium as the maximum penalty for each count of frustrated murder.

On a final note, we could have imposed higher penalties and increased the amount of damages if the
prosecution has alleged in the Informations the aggravating circumstance of dwelling, considering that the
victims were inside their dwelling when the crimes were committed. Having failed to allege the aggravating
circumstance of dwelling - an ordinary aggravating circumstance and proven during the trial, the same could
not be appreciated to impose higher penalties and increase the amount of damages. Prosecutors are,
therefore, enjoined to be more careful and prudent in determining the modifying circumstances that attend
the commission of the crimes and in properly alleging the same in the Informations that they file before the
courts to better serve the ends of justice.

Awards of Damages

For the two (2) counts of murder, the Court awards to the heirs of the victims; P75,000.00 as civil
indemnity, P75,000.00 as moral damages and P75,000.00 as exemplary damages. For the two (2) counts of
frustrated murder, the Court awards P50,000.00 as civil indemnity, P50,000.00 as moral damages and
P50,000.00 as exemplary damages for each victim. 33 chanrobleslaw

Moreover, while records do not show that the prosecution was able to prove the amount actually expended
for medical, burial and funeral expenses, prevailing jurisprudence nonetheless allows the Court to award
temperate damages to the victims' heirs as it cannot be denied that they suffered pecuniary loss due to the
crime committed.34 In conformity with People v. Ireneo Jugueta,35 the Court, however, deems it proper to
increase the award of temperate damages from P25,000.00 to P50,000.00 for uniformity and to further
provide aid and financial assistance to the victims.

All damages awarded shall earn interest at the rate of six percent (6%) per annum from the date of finality
of this Judgment until fully paid.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-HC No. 00089-MIN, which affirmed the
Decision of the Regional Trial Court of Panabo, Davao, Branch 34, finding appellant Yolando Libre alias
"Nonoy" GUILTY beyond reasonable doubt of two (2) counts of murder and two (2) counts of frustrated
murder, is AFFIRMED with MODIFICATIONS, as follows:

chanRoblesvirtualLawlibrary For the murders of Rodel Barte and Joselito Barte :

(1) Appellant Yolando Libre is sentenced to suffer the prison term of reclusion perpetua for each count of
chanRoblesvirtualLawlibrary

murder;

(2) Appellant Yolando Libre is ORDERED to PAY the heirs of the victims the amount of P75,000.00 as civil
indemnity for the death of each victim; moral damages in the amount ofP75,000.00 each, exemplary
damages in the amount of P75,000.00 each, and P50,000.00 as temperate damages, in lieu of actual
damages.

For the frustrated murders of Ruben Barte and Renante Barte:

(1) Appellant Yolando Libre is sentenced to suffer the indeterminate penalty of six (6) years and one (1)
chanRoblesvirtualLawlibrary

day of prision mayor minimum, as minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal medium, as maximum, for each count of frustrated murder; and  cralawlawlibrary

(2) Appellant Yolando Libre is ORDERED to PAY civil indemnity in the amount of P50,000.00, moral
damages in the amount of P50,000.00, exemplary damages in the amount of P50,000.00, and P50,000.00
as temperate damages, in lieu of actual damages, to each of the victims.
All damages awarded shall earn interest at the legal rate of six percent (6%) per annum from finality of this
Judgment until fully paid.

Let a copy of this Decision be furnished the Department of Justice for its information and appropriate action.

Costs against the appellant.

SO ORDERED.

G.R. No. 212930, August 03, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ANGELO BUENAFE Y BRIONES @

"ANGEL," Accused-Appellant.

DECISION

PEREZ, J.:

Before the Court is an appeal from the Decision 1 of the Court of Appeals (CA) dated 19 December 2013 in
CA-G.R. No. CR-HC 05415, affirming the Decision 2 of the Regional Trial Court (RTC), Branch 93, San Pedro,
Laguna which found appellant Angelo Buenafe y Briones guilty of the crime of Murder, as defined in Article
248 of the Revised Penal Code (RPC).

Appellant was charged with Murder. The accusatory portion of the Information narrates: ChanRoblesVirtualawlibrary

That on or about March 24, 2005, in the Municipality of San Pedro, Province of Laguna, Philippines and
within the jurisdiction of this Honorable Court, the above-named said accused, conspiring and confederating
with two other John Doe's whose identities are yet to be established, with intent to kill and abuse of superior
strength, attended with the aggravating qualifying circumstance of treachery, did then and there willfully,
unlawfully, and feloniously attack, assault, and shot one ROMMEL ALVAREZ, with the use of a handgun of
unknown caliber, thereby inflicting upon him gunshot wound on his abdomen causing his instantaneous
death, to the damage and prejudice of his surviving heirs. 3 chanroblesvirtuallawlibrary

On arraignment, appellant entered a plea of NOT GUILTY for both charges. Trial on the merits ensued
thereafter.

The Facts

The antecedent facts culled from the Appellee's Brief4 and the records of the case are summarized as
follows:

On 24 March 2005, at around 10 o'clock in the evening, Kenneth dela Torre, (Kenneth) a 15 year old
chanRoblesvirtualLawlibrary

farmhand, went to Alpa Farm to apologize to his employer, Rommel Alvarez (Rommel), who scolded him
that day.

However, upon reaching the farm, he saw appellant and two (2) unidentified men alight from a vehicle.
Thereafter, while Rommel was unwarily texting inside the tent, the two men suddenly restrained his amis
behind his back. Subsequently, appellant approached Rommel and delivered several blows to his abdomen
until he crumpled to the ground. After which, appellant walked towards a nearby hut while the two men
dragged Rommel.5 chanrobleslaw

Inside the hut, appellant shot the victim using a lead pipe ("sumpak").6 After fixing something, appellant and
the two other men hurriedly proceeded to the car. Kenneth, on the other hand, went to his friend's house
and out of fear, decided to keep the information to himself. 7 chanrobleslaw

When Kenneth reported for work the next morning, he learned that Rommel was dead. 8 On the same day,
Marissa Alvarez (Marissa), wife of Rommel, pointed a number of their farmhands as possible suspects to the
police, one of which was Kenneth.9 chanrobleslaw

Since appellant is a known family friend, the farmhands followed his instructions to clean the hut and burn
the bloodied mattress. 10 Fortunately, Winifredo Vibas stopped the farmhands from complying with
appellant's orders.11 Meanwhile, Kenneth told the police that he had no knowledge about Rommel's
death.12 Later on, appellant was also invited by the police and underwent fingerprinting analysis and paraffin
test on the same day.

On 22 April 2005, Marissa and several farmhands failed to give their statements when they went to the
Criminal Investigation and Detection Group (CIDG) Canlubang office because the computers bogged down.
Overwhelmed by conscience and pity, Kenneth revealed to Marissa what he saw that fateful evening on their
way home. The case was filed before the trial court a few months thereafter.

Appellant vehemently denied the accusations. 13 According to him, he cannot kill Rommel as he never had
any ill-motive or grudge against him.14 He also avers that he was not in the farm during the incident as he
stayed in thepabasa until 10 o'clock in the evening and thereafter went home. 15 chanrobleslaw

In his brief,16 appellant pointed out that Kenneth's retraction of his previous statement and his belated and
perjured new version is highly speculative and unsupported by evidence. Also, according to him, the
negative results of the fingerprinting analysis 17 and paraffin test18 conducted the following day after the
incident prove his innocence.

Ruling of the Regional Trial Court

On 4 January 2012, the RTC rendered a decision finding appellant guilty of Murder. The dispositive portion of
the decision reads:ChanRoblesVirtualawlibrary

WHEREFORE, the [c]ourt hereby renders judgment finding accused Angelo Buenafe y Briones guilty beyond
reasonable doubt of the crime of MURDER and sentencing him to suffer the penalty of reclusion perpetua.
Angelo Buenafe y Briones is also ordered to pay the heirs of Rommel Alvarez the amounts of P50,000.00 as
civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages. 19 chanroblesvirtuallawlibrary

Ruling of the Court of Appeals

The CA sustained appellant's conviction. It was fully convinced that there is no ground to deviate from the
findings of the RTC. The dispositive portion of the decision reads: ChanRoblesVirtualawlibrary

WHEREFORE, the instant appeal is DENIED. The assailed Decision dated January 4, 2012 of the Regional
Trial Court (RTC) of San Pedro, Laguna, Branch 93, in Criminal Case No. 5306-SPL is
hereby AFFIRMED.20 chanroblesvirtuallawlibrary

Appellant appealed the decision of the CA. The Notice of Appeal was given due course and the records were
ordered elevated to this Court for review. In a Resolution 21 dated 13 August 2014, this Court required the
parties to submit their respective supplemental briefs. The appellee manifested that it will no longer file a
supplemental brief since all the issues raised were already thoroughly discussed in the Appellee's Brief filed
with the CA.22 Appellant on the other hand, submitted his supplemental brief 23 on 31 October 2014.

In his brief, appellant assigned the following errors: ChanRoblesVirtualawlibrary

I. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT RULED

THAT THERE IS NO MOTIVE ON THE PART OF KENNETH TO FALSELY TESTIFY AND WHEN,
CONTRARY TO THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO PRESUMPTION OF
INNOCENCE, IT IGNORED THE FACT THAT THE DEFENSE WITNESS LIKEWISE HAD NO
MOTIVE TO FALSELY TESTIFY;

II. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED
THAT THERE WAS POSITIVE, CLEAR AND CATEGORICAL TESTIMONY OF KENNETH AND
WHEN IT DID NOT RULE THAT THE SAID TESTIMONY IS INCREDIBLE AND CONTRARY TO
HUMAN EXPERIENCE AND ADMISSIONS OF THE VERY SAME WITNESS.

Our Ruling

Treachery as a qualifying circumstance in the crime of Murder

This Court finds that the circumstance of treachery should be appreciated, qualifying the crime to Murder.
According to the RPC: ChanRoblesVirtualawlibrary
ARTICLE 248. Murder. — Any person who, not falling within the provisions of Article 246 shall kill another,
shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if
committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford
impunity.

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel,

derailment or assault upon a street car or locomotive, fall of an airship, by means of motor
vehicles, or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an

earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public
calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.

Thus, the elements of murder are: (1) that a person was killed; (2) that the accused killed him or her; (3)
that the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC;
and (4) that the killing is not parricide or infanticide. 24 chanrobleslaw

Furthermore, 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. 25 cralawredchanrobleslaw

The requisites of treachery are: ChanRoblesVirtualawlibrary

(1) The employment of means, method, or manner of execution which will

ensure the safety of the malefactor from defensive or retaliating acts
on the part of the victim, no opportunity being given to the latter to
defend himself or to retaliate; and
(2) Deliberate or conscious adoption of such means, method, or manner of
execution.26
In this case, the victim was merely unwarily texting inside the tent when the two men held him from behind
so that the appellant can deliver blows to his abdomen. The victim was too unprepared and helpless to
defend himself against these three men. Furthermore, appellant's acts of dragging him to the nearby hut
and using a lead pipe (sumpak) evidently shows that he consciously adopted means to ensure the execution
of the crime.

The defense of denial cannot be given more weight over a witness'positive identification

Appellant denies the accusations on the ground that he has no ill-motive to kill his close friend Rommel. This
alibi deserves scant consideration. As a general rule, proof of motive for the commission of the offense
charged does not show guilt and absence of proof of such motive does not establish the innocence of
accused for the crime charged such as murder. 27 chanrobleslaw

In People v. Ducabo,28 this Court held that motive is irrelevant when the accused has been positively
identified by an eyewitness. Intent is not synonymous with motive. Motive alone is not a proof and is hardly
ever an essential element of a crime.29 chanrobleslaw

Evidently, appellant's intent to kill was established beyond reasonable doubt by the manner the crime was
committed.30 This can be seen when he even brought two other men to accompany him in killing Rommel
and chose to execute it late at night to ensure that no other people can witness the crime.

During the Direct Examination, Kenneth positively identified appellant as the person who killed Rommel: ChanRoblesVirtualawlibrary

Q: Now, while Kuya Rommel was being held from behind being held by
his two hands from behind by these two men, what else happened?
A: Kuya Angelo approached and whispered to Kuya Rommel sir.
xxxx  
Q: And after whispering something and after Angelo having whispered
something to Kuya Rommel, what happened next?
A: After Kuya Angelo whispered something to Kuya Rommel, he was
punched on his stomach, on his abdomen, sir.
Q: Who was punched on his stomach, on his abdomen?
A: Kuya Angelo punched Kuya Rommel on his abdomen, sir.
Q: How many times?
A: Several times, sir.
Q: And because of which, what happened to Kuya Rommel?
A: He fell down, Sir.
Q: And then after falling down, what happened next?
A: After Kuya Rommel slamped, I witnessed the two men dragging Kuya
Rommel towards the kubo or nipa hut, sir.
xxxx
Q: Thereafter, what else happened?
A: I saw Kuya Angelo poked something to the bed which was a lead pipe
which he was earlier carrying when he entered that room.
Q: What did your Kuya Angelo do with that "tubo" which he poked to the
bed?
A: He fired it, sir.31
Appellant's contention — that Kenneth's testimony is perjured and highly speculative - is bereft of merit. It
should be noted that Kenneth has no motive to testify falsely against the accused 32 as it was even appellant
who recommended him for the job.33 chanrobleslaw

This Court gives the highest respect to the RTC's evaluation of the testimony of the witnesses, considering
its unique position in directly observing the demeanor of a witness on the stand. From its vantage point, the
trial court is in the best position to determine the truthfulness of witnesses. 34
chanrobleslaw

Lapse of considerable length of time before witness comes forward does not taint his credibility

Witnessing a crime is an unusual experience that elicits different reactions from the witnesses, and for which
no clear cut standard form of behavior can be drawn.35 In People v. Clariño36 this court held that death
threats, fear of reprisal, and even a natural reluctance to be involved in a criminal case have been accepted
as adequate explanations for the delay in reporting crimes. Moreover, the delay in the witness' disclosure of
the identity of the culprit will not affect his credibility nor lessen the probative value of his testimony. 37
chanrobleslaw
In this case, appellant's threat that he will kill Kenneth if he informs the former's wife of his philandering 38 is
an acceptable reason for the witness' delay in coming forward and disclosing the identity of the appellant.

Appellant further maintains that Kenneth's retraction of his previous statement disavowing any knowledge
regarding the incident should not be considered against him.39 This Court is not persuaded. What this Court
disfavors are the retractions of testimonies which have been solemnly taken before a court of justice in an
open and free trial and under conditions precisely sought to discourage and forestall falsehood simply
because one of the witnesses who had given the testimony later on changed his mind. Such a rule will make
solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses. 40 In
the case at bar, Kenneth's recanted statement was made before the police and not in open court. In fact,
the retraction of Kenneth's previous statement was made during the initial investigation of the charges
against the appellant, which is clearly before the case was filed in court.

It is not physically impossible for the witness to be at the scene of the crime

Appellant also tried to destroy the credibility of Kenneth's testimony by relying on his housemate's
statement that she saw Kenneth sleeping at around 9:00 in the evening. 41 We are not convinced.

In People v. Taboga,42 physical impossibility was defined as the distance and the facility of access between
the situs of the crime and the location of the accused when the crime was committed. It must be
demonstrated that he was so far away and could not have been physically present at the scene of the crime
and its immediate vicinity when the crime was committed.43 chanrobleslaw

In this case, the Alpa Farm is a mere fifteen (15) to twenty (20) minute walk from Kenneth's
residence.44 Thus, from 9:00 in the evening, it is not physically impossible for Kenneth to be in Alpa Farm at
around 10:00 in the evening which is the time when the incident occurred.

Fingerprint analysis and Paraffin Tests are not conclusive

The positive identification made by the prosecution witnesses bears more weight than the negative
fingerprint analysis and paraffin tests results conducted the day after the incident.

In People v. Cajumocan,45 this Court ruled that paraffin tests, in general, have been rendered inconclusive
by this Court. Scientific experts concur in the view that the paraffin test was extremely unreliable for use. It
can only establish the presence or absence of nitrates or nitrites on the hand; however, the test alone
cannot determine whether the source of the nitrates or nitrites was the discharge of a firearm. The presence
of nitrates should be taken only as an indication of a possibility or even of a probability but not of infallibility
that a person has fired a gun, since nitrates are also admittedly found in substances other than gunpowder.

Furthermore, negative findings in the fingerprint analysis do not at all times lead to a valid conclusion for
there may be logical explanations for the absence of identifiable latent prints other than the appellant not
being present at the scene of the crime. The absence of latent fingerprints does not immediately eliminate
the possibility that the appellant could have been at the scene of the crime. 46 chanrobleslaw

In this case, Kenneth testified in the trial court that it was indeed the appellant who killed Rommel. 47 It
should also be considered that the fingerprint analysis 48 and the paraffin test49 were conducted the following
day after the incident. Thus, it is possible for appellant to fire a gun and yet bear no traces of nitrate or
gunpowder as when the hands are bathed in perspiration or washed afterwards. 50 chanrobleslaw

Damages and civil liability

This Court resolves to modify the damages awarded by the appellate court. In line with recent
jurisprudence,51 appellant shall pay the heirs of Rommel Alvarez, P75,000.00 as civil indemnity, P75,000.00
as moral damages, and P75,000.00 as exemplary damages for the crime of Murder. In addition, interest at
the rate of six percent (6%) per annum shall be imposed on all monetary awards from date of finality of this
Judgment until fully paid.

WHEREFORE, the 19 December 2013 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 05415
is AFFIRMED with MODIFICATIONS. Appellant ANGELO BUENAFE y BRIONES is found GUILTY beyond
reasonable doubt of the crime of Murder and shall suffer a penalty of Reclusion Perpetua and shall pay the
Heirs of Rommel Alvarez P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as
exemplary damages. All monetary awards for damages shall earn interest at the legal rate of six percent
(6%) per annum from the date of finality of this judgment until fully paid.

SO ORDERED. chanRoblesvirtualLawlibrary

G.R. No. 204896, December 07, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SAMSON BERK Y BAYOGAN, Accused-Appellant.

DECISION

PEREZ, J.:

This is an appeal assailing the Decision1 of the Court of Appeals in CA-G.R. CR-H.C. No. 04573 dated 29
June 2012 which dismissed the appeal of appellant Samson Berk y Bayogan and affirmed with modification
the Decision2 of the Regional Trial Court (RTC) of Lingayen, Pangasinan, Branch 39, in Criminal Case No. L-
8391, which found appellant guilty beyond reasonable doubt of the crime of Murder.

Appellant and his co-accused Jeneto Serencio (Serencio) were charged before the RTC of Lingayen,
Pangasinan, Branch 39 with murder as follows:

That on or about 10:45 o'clock in the morning of December 16, 2007, in Poblacion East, Sual, Pangasinan
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
with each other with treachery and with intent to kill, did then and there, wilfully, unlawfully and feloniously
attack, and shot Clarita Disu several times, inflicting upon her several gunshot wounds which [caused] her
instantaneous death, to the damage and prejudice of her heirs.

Contrary to Article 248 of the Revised Penal Code in relation to RA 7659 as amended. 3

During arraignment, appellant pleaded not guilty to the crime charged. Serencio remains at large. Trial on
the merits thereafter ensued.

The prosecution presented eyewitnesses Marbie S. Disu (Marbie) and Loreto Inocencio (Loreto) ,
respectively the daughter and grandson of the victim. Their testimonies established that in the morning of
16 December 2007, the victim Clarita Disu and her daughter Marbie were tending their neighbourhood
variety store in Sual, Pangasinan with Loreto, when two (2) men on board a motorcycle arrived. One
dismounted the vehicle and bought a cigarette from Marbie while the other stayed on the vehicle. The man
who bought the cigarette suddenly pulled a gun and pointed it to Clarita and shot her four (4) times. Marbie
shouted for help and ran to the fallen victim to help and embrace her. The assailant, who had been wearing
a yellow t-shirt, then boarded the motorcycle and headed east. Marbie noted the motorcycle plate number
as AR 3273.4

On 29 January 2008, police authorities invited Marbie and Loreto to the police station to identify whether the
gunman had been among those whom they arrested. Of three (3) persons in the prison cell, both Marbie
and Loreto pointed to appellant. Both also identified appellant in open court as the victim's assailant. 5

Appellant asserted that he had been away on a fishing boat off Pangasinan on the date and time of the
incident. He also countered that he had been arrested for alleged illegal possession of a gun. While he was
in prison, Marbie came and was allegedly apprised by the police that it was appellant who had killed her
mother.6

After trial, the RTC gave credence to the eyewitness accounts of Marbie and Loreto of appellant's liability in
the killing of the victim. On 19 July 2010, the RTC rendered the assailed decision disposing as follows:

WHEREFORE, in the (sic) light of the foregoing discussions, this Court finds accused SAMSON
BERK GUILTY beyond reasonable doubt of the crime of MURDER as defined in Article 248 of the Revised
Penal Code, as amended by Rep. Act No. 7659, qualified by treachery. The proper imposable penalty would
have been death. However, pursuant to Rep. Act No. 9346, accused is sentenced to suffer the penalty
of reclusion perpetua without possibility of parole.

Accused is further ORDERED to pay the heirs of Clarita Disu, the amounts of (a) Php 75,000 as civil
indemnity; (b) Php 75,000.00 as moral damages; (c) Php 25,000.00 as exemplary damages; and (d) Php
25,000.00 as temperate damages.

Insofar as accused JENETO SERENCIO is concerned, let the case against him be ARCHIVED. Let an alias
warrant of arrest be issued for his immediate apprehension to be furnished to the following officers:

1. Chief of Police, PNP, Sual, Pangasinan;

2. Provincial Director, PNP, Pangasinan;
3. Regional Director, PNP, Region Office 1;
4. The NBI Director, Pangasinan;
5. The Regional Director, NBI, Regional Office 1;
6. The Director, NBI, Manila;
7. The CIDG Provincial Director, Pangasinan;
8. The Regional Director, CIDG Regional Office 1;
9. The National Director, CIDG, Manila; and
10. The Chief PNP, Camp Crame, Quezon City

who are all ordered to effect the immediate arrest of the above named accused and furnish this Court with
their respective returns of service, the soonest.7

The Court of Appeals found no reason to disturb the findings of the RTC and upheld its ruling. The appellate
court also found the eyewitness accounts credible, straightforward and reliable and upheld their positive
identification of appellant as the perpetrator. The Court of Appeals thus disposed:

WHEREFORE, premises considered, the instant Appeal is DENIED and the Decision dated 19 July 2010
rendered by Branch 39, Regional Trial Court of Lingayen, Pangasinan is
hereby AFFIRMED but MODIFIED to read as follows:

WHEREFORE, in light of the foregoing discussions, this Court finds accused SAMSON BERK GUILTY beyond
reasonable doubt of the crime of MURDER as defined in Article 248 of the Revised Penal Code, as amended
by Rep. Act No. 7659, qualified by treachery. There being no aggravating or mitigating circumstance, the
accused is sentenced to suffer the penalty of reclusion perpetua.

Accused is further ORDERED to pay the heirs of Clarita Disu, the amounts of (a) Php 75,000 as civil
indemnity; (b) Php 75,000.00 as moral damages; (c) Php 25,000.00 as exemplary damages; and (d) Php
25,000.00 as temperate damages.

Insofar as accused JENETO SERENCIO is concerned, let the case against him be ARCHIVED. Let an alias
warrant of arrest be issued for his immediate apprehension to be furnished to the following officers:

1. Chief of Police. PNP; Sual, Pangasinan;

2. Provincial Director, PNP, Pangasinan;
3. Regional Director, PNP, Region Office 1;
4. The NBI Director, Pangasinan;
5. The Regional Director, NBI, Regional Office 1;
6. The Director, NBI, Manila;
7. The CIDG Provincial Director, Pangasinan;
8. The Regional Director, CIDG Regional Office 1;
9 The National Director, CIDG, Manila; and
10. The Chief PNP, Camp Crame, Quezon City

who are all ordered to effect the immediate arrest of the above named accused and furnish this Court with
their respective returns of service the soonest.8
Now before the Court for final review, we affirm appellant's conviction.

Well-settled in our jurisprudence is the rule that findings of the trial court on the credibility of witnesses
deserve great weight, as the trial judge is in the best position to assess the credibility of the witnesses, and
has the unique opportunity to observe the witness first hand and note his demeanor, conduct and attitude
under gruelling examination.9 The fact that the trial judge who penned the Decision was different from the
one who received the evidence does not render the same erroneous. It is not necessary for a judgment to
be valid that the judge who penned the decision should actually hear the case in its entirety, for he can
merely rely on the transcribed stenographic notes taken during the trial as the basis for his decision. 10

That Judge Robert P. Fangayen was not the one who heard the evidence and had no opportunity to observe
the demeanor of the witnesses is of no moment so long as he based his ruling on the records before him the
way appellate courts review the evidence of the case raised on appeal. 11 Absent any showing that the trial
court's findings of facts were tainted with arbitrariness or that it overlooked or misapplied some facts or
circumstances of significance and value, or its calibration of credibility was flawed, the appellate court is
bound by its assessment.

In the prosecution of the crime of murder as defined in Article 248 of the Revised Penal Code (RPC), the
following elements must be established by the prosecution: (1) that a person was killed; (2) that the
accused killed that person; (3) that the killing was attended by treachery; and (4) that the killing is not
infanticide or parricide.12

Our review of the records convinces us that these elements were clearly met. The prosecution eyewitnesses
positively identified appellant as the person responsible for killing the victim through valid out-of-court and
in-court identifications. The Court finds no reason to disbelieve these credible and straightforward
testimonies. Marbie significantly testified as follows:

ATTY. FERNANDEZ
   
Q: Could you tell how were you able to know the identity who shot your
mother?
A: Last January 29, 2008 [I] was invited by the police authorities to
identify some of those whom they arrested, sir.
   
Q: What particular office were you invited?
A: Police Station of Sual, sir.
   
Q: Were you able to go to that police station of Sual?
A: Yes, sir.
   
Q: Do you have any companion when you went to that police station?
A: Yes, sir, there is.
   
Q: Who is that?
A: Marmolito Disu and Loreto Inocencio, sir.
   
Q: Upon reaching the office of Sual PNP, what happened there?
A: They showed me those persons they arrested, sir.
   
Q: What else did the police tell you, if any?
A: When they showed me the person they have arrested I saw the
gunman who shot my mother sir.
   
Q: After seeing the gunman in the police station, what did you do?
A: I told the policemen, that is the gunman, sir.
   
Q: What did the police tell you in identifying the gunman of your mother?
A: After I pointed to the gunman they told me the name of the person by
the name of Samson Berk, sir.
   
Q: Madam Witness, I request you to look inside the Courtroom and tell the
Honorable Court if this alleged gunman is inside the Courtroom?
A: Than (sic) man, sir. (witness pointing to the accused and when asked
of his name he answered. Samson Berk).13

The above-quoted testimony disproves appellant's assertion that Marbie had been coaxed by the police
authorities to pin him down as her mother's assassin. We are also not persuaded by the appellant's defenses
of denial and alibi as these cannot prevail over the eyewitnesses' positive identification of him as the
perpetrator of the crime. Denial, like alibi, if not substantiated by clear and convincing evidence is negative
and self-serving evidence undeserving of weight in law.14 In fine, the Court finds no error in the conviction of
the appellant.

The prosecution ably established the presence of the element of treachery as a qualifying circumstance. The
shooting of the unsuspecting victim was sudden and unexpected which effectively deprived her of the
chance to defend herself or to repel the aggression, insuring the commission of the crime without risk to the
aggressor and without any provocation on the part of the victim.

The Court affirms the penalty of reclusion perpetua imposed upon appellant. Under Article 248 of the
Revised Penal Code, as amended, the crime of murder qualified by treachery is penalized with reclusion
perpetua to death. The lower courts were correct in imposing the penalty of reclusion perpetua in the
absence of any aggravating and mitigating circumstances. that attended the commission of the crime. The
Court likewise affirms the award of civil indemnity and moral damages but the award of the other damages
should be modified, in accordance with prevailing jurisprudence, as follows: P75,000.00 as exemplary
damages and P50,000.00 as temperate damages. 15

Further, all the amount of damages awarded should earn interest at the rate of six percent (6%) per
annum  from the finality of this judgment until said amounts are fully paid. 16
WHEREFORE, premises considered, the Decision dated 29 June 2012 of the Court of Appeals, Third
Division, in CA-G.R. CR-H.C. No.04573, finding Samson Berk y Bayogan guilty of murder in Criminal Case
No. L-8391 is AFFIRMED with MODIFICATION. Appellant is ORDERED to pay the heirs of Clarita Disu as
follows:P75,000.00 as civil indemnity, P75,000.00 as moral damages, P75,000.00 as exemplary damages
and P50,000.00 as temperate damages.

He is FURTHER ordered to pay interest on all damages awarded at the legal rate of six percent (6%) per
annum from the date of finality of this judgment until fully paid.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 126021. March 3, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,  vs. RENE

SIAO, Accused-Appellant.

DECISION

GONZAGA_REYES, J.:

Accused-appellant Rene Siao together with Reylan Gimena were

charged before the Regional Trial Court of the City of Cebu with the
crime of rape committed as follows:

"xxx xxx xxx:

That on or about the 27th day of May, 1994, about 3:00 P.M., in the
City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, conniving and confederating
together and mutually helping each other, with deliberate intent and
with force and intimidation upon person, did then and there willfully,
unlawfully and feloniously have carnal knowledge with the
undersigned, Estrella Raymundo, a minor, 14 years old, against the
latters will."1 cräläwvirtualibräry

Accused-appellant Rene Siao and Reylan Gimena pleaded "not

guilty" to the charge. Hence, trial proceeded in due course. After
trial, the Regional Trial Court of the City of Cebu convicted accused-
appellant Rene Siao of the crime of rape as principal by induction
and acquitted Reylan Gimena. The dispositive portion of the decision
rendered on March 29, 1996 reads:
"WHEREFORE, in view of all the foregoing, judgment is hereby
rendered finding accused Rene Siao GUILTY beyond reasonable
doubt as principal by induction in the crime of rape committed
against the person of Ester Raymundo and imposes upon him the
penalty of RECLUSION PERPETUA. He is, likewise, directed to
indemnify private complainant Ester Raymundo the sum of
P50,000.00 as and for moral damages.

Accused Reylan Gimena is hereby ACQUITTED because he acted

under the impulse of uncontrollable fear of an equal, if not greater
injury.

For want of evidence, his croslaim against Rene Siao should be, as it
is hereby ordered, DISMISSED."2 cräläwvirtualibräry

Hence, this appeal by Rene Siao.

The Office of the Solicitor General3 summarized the evidence for the

prosecution in this wise:

Joy Raymundo and private complainant Estrella Raymundo are

cousins. They worked as house maids of appellants family. Reylan
Gimena was also a helper of appellants family. Estrella was then a
14-year old "probinsiyana" from Palompon, Leyte (p. 5, TSN,
September 16, 1994).

On May 27, 1994, at about 3:00 p.m., in the Siao residence located
at 417-A Basak Brotherhood, Cebu City, appellant ordered Reylan
Gimena, a houseboy of the Siaos, to pull Estrella to the room of the
women. Gimena dragged her toward the womens quarters and once
inside, appellant pushed her to the wooden bed (naomog).
Appellant pointed a pistol colored white at Gimena and the face of
Estrella (pp. 7-8, TSN, September 16, 1994).

Producing a candle and a bottle of sprite, appellant asked Estrella to

choose one among a pistol, candle or a bottle of sprite. He also told
Gimena "Reylan, birahi si Ester." (Reylan do something to Ester.)
Appellant lighted the candle and dropped the melting candle on her
chest (p. 7, TSN, September 20, 1994). Estrella chose a bottle of
sprite because she was afraid of the pistol. She was made to lie
down on her back on the bed with her head hanging over one end.
Whereupon, appellant poured sprite into her nostrils as she was
made to spread her arms. While appellant dropped the bottle of
sprite into her nostrils, he pointed the gun at her face. Estrella felt
dizzy and her eyesight became blurred (p. 6, TSN, September 20,
1994). She tried to fold her arms to cover her breasts but appellant
ordered Gimena to hold her hands (p. 10-15, TSN, September 16,
1994).

Appellant then tied her feet and hands with an electric cord or wire
as she was made to lie face down on the bed. After that, appellant
untied her hands and feet but tied her back with the same wire (p.
17, TSN, September 16, 1994).

As appellant pointed his pistol at her, he ordered Estrella to remove

her pants and T-shirt, she sat on the bed and did as she was told
and when she was naked, appellant commanded her to take the
initiative (ikaw ang mauna sa lalaki.) She did not understand what
appellant meant. At this point, appellant poked the gun at her
temple (pp. 19-20, TSN, September 16, 1994).

Appellant then commanded Gimena to remove his shorts. But

Gimena refused. Gimena did not remove his shorts but let his penis
out (p. 21, TSN, September 1, 1994; p. 11, TSN, September 20,
1994).

Appellant spread the arms of Estrella and made her lie down
spread-eagled (pp. 4-5, TSN, September 29, 1994). She felt dizzy
and shouted for help twice. Appellant ordered Gimena to rape
Estrella. At first Gimena refused to heed the command of appellant
to rape Estrella (birahi) because, according to Gimena, he has a
sister. Appellant said that if they would not obey, he would kill both
of them (pp. 4-10, TSN, September 20, 1994.

Appellant told Gimena, "Reylan, do something (birahi) to Ester!"

Estrella was made to suck the penis of Gimena at gunpoint. She
complied with the order of appellant and when the penis of Gimena
was inside her mouth, appellant kept looking and pointing his
handgun at them (pp. 11-14, TSN, September 20, 1994; pp. 19-20,
TSN, September 21, 1994).
Thereafter, Gimena got on top of Estrella (gisakyan) and did the
sexual act (kayatan). She felt excruciating pain. Gimena made
push-and-pull movements for around 10 minutes. Appellant looked
on and said, "why did it take you long to penetrate?" While Gimena
was making the push-and-pull movements, appellant held the legs
of Estrella to keep them apart (pp. 21-24, TSN, September 20,
1994).

After Gimena had sexual intercourse with Estrella, she sat down.
Not long after, appellant said: "You do it again." Gimena said that
he could not do it again because he was already very tired. But
appellant pointed the pistol at Gimenas temple. Gimena obeyed the
order of appellant because the pistol was pointed at him (pp. 25-26,
TSN, September 20, 1994). They were made to lay side by side
while appellant kept on pointing the pistol at them. Gimena, who
was behind Estrella made a push-and-pull movements so that his
organ would reach her private part (pp. 27-29, TSN, September 20,
1994).

After the side by side position, they were made to assume the dog
position (patuwad). Appellant commanded her to do it but she
refused because she was already tired. Appellant pointed the pistol
at her, so she obeyed his order. Gimena said: "I will not do that
because I am already tired." At that, appellant pointed the pistol at
Gimena. Thus, Gimena copulated with Estrella in the manner dogs
perform the sexual intercourse. Gimena shouted for help.
Somebody knocked on the door and they heard the voice of Teresita
Paares, the older sister of appellant. Appellant ignored Paares and
kept on pointing the pistol at Estrella and Gimena, as he looked at
them with wide-open eyes (siga) (pp. 30-31, TSN, September 20,
1994). Shortly, appellant told them to go to the boys room. They
complied with his order tearfully, after he followed them laughing all
the while. Appellant then warned them: "If you will tell the police, I
will kill your mothers." (pp. 33-34, TSN, September 20, 1994).

At around 6:00 oclock in the evening of the same day, Estrella and
Joy Raymundo sought permission to go home. On their way home,
they met an old man who saw Estrella crying. The old man took
them to his house. After the incident was reported to the police,
Senior Police Officer Reynaldo Omaa conducted the investigation
and arrested Gimena, who was identified by Esrtrella as the one
who raped her on orders of appellant. The police officers looked for
appellant to shed light on the reported rape. But they could not
locate him (Exhibit "B"; pp. 5-7, TSN, December 13, 1994).4 cräläwvirtualibräry

Accused-appellant Rene Siao, anchoring his defense mainly on

denial, presents a different version of the case; his story -

"Private complainant Ester or "Estrella" Raymundo, together with

her cousin Joy Raymundo, was employed as a maid by the Siao
family on May 9, 1994.

In the morning of May 27, 1997, a commotion in the household of

Jose Siao awakened Teresita Paares, a sister of accused-appellant.
Ms. Paares learned that accused Reylan Gimena, one of the
houseboys of the Siao family, was accusing private complainant of
stealing his wristwatch. This was not the first time accused Gimena
confronted private complainant with the loss of his watch. Earlier in
the week, Teresita had also lost money in the amount of P1,300.00,
while her daughter Jan Bianca Abellana lost a necklace. It would
turn out that the other househelpers of the Siaos had likewise lost
personal articles. Marilyn Resujent, a maid, lost a brand new panty
and sleeveless blouse. Simeon Siroy Jr., a houseboy, lost two T-
shirts. Until the employment of the Raymundo cousins, the
household of the Siaos had not fallen victim to thievery.

At around noontime of the same day, upon his return from his
morning chores, accused Gimena inquired from Ms. Paares whether
his watch had been found. When informed that his watch had not
been recovered, he confronted private complainant, who offered to
pay for the value of the watch instead. Joy Raymundo agreed to
accompany accused Gimena to the house of an aunt (of Joy and
private complainant) for financial assistance. An hour later, accused
Gimena and Joy Raymundo returned to the Siao compound and
reported to Ms. Paares that the aunt was unable willing (sic) to
help.

In the meantime, private complainant admitted to Ms. Paares that

she stole the P1,300.00 but denied having taken the necklace.
Private complainant initially returned the sum of P600.00 to Ms.
Paares. When Ms. Paares stated that what she lost was P1,300.00,
private complainant went to her quarters and returned with an
additional P200.00. Private complainant explained that she could no
longer produce the remaining money because she had already
purchased a number of personal effects (pail, basin, pants, shorts)
for herself with it.

A little while after accused Gimena and Joy returned from the house
of Joy and Esters aunt, accused Gimena and private complainant
went to the males quarters. Sometime thereafter, accused Gimena
emerged from the males quarters and announced the recovery of
his watch. Private complainant had revealed to accused Gimena the
hiding place of his watch, which was under the ironing board.

In the afternoon of May 24, 1994,5 many people were present in the

household of Jose Siao, father of accused-appellant. Ms. Beatriz
Baricuatro was in the sala praying the rosary as was were habit. Joy
Raymundo was in the kitchen. Ms. Paares was likewise downstairs
going about her daily business. The grandchildren of Jose Siao were
running in and out of the house.

At about 3:00 p.m., Ms. Paares left their residence to seek the
assistance of the barangay with respect to the lost necklace of her
daughter. (Until this time, private complainant would not admit to
stealing the necklace). Within an hour, Ms. Paares returned to the
compound accompanied by Barangay Tanod Arturo Jabines. Private
complainant was inside the males quarters when the two arrived.
Accused had earlier reported for work at the retail store owned by
Jose Siao. When Barangay Tanod Jabinez introduced himself,
private complainant immediately begged for his forgiveness and
promised not to do it again. Barangay Tanod Jabinez instructed the
private complainant to address her pleas to her victims and not to
him. Before the barangay tanod, private complainant admitted to
stealing the necklace.

Dissatisfied with the piece-meal confession of the private

complainant, Ms. Paares decided to bring her to the barangay hall
where she could report the theft. On the way to the barangay hall,
private complainant confessed to selling the necklace and begged
for forgiveness. At the last minute Ms. Paares relented and decided
to give the private complainant a second chance.

Upon their return to the Siao compound, private complainant and

Joy Raymundo sought permission from Ms. Baricuatro to just return
to their home in Leyte. Ms. Beatriz gave her consent and even
handed them money for boat fare. At about 6:00 p.m., both
housemaids left the Siao residence, bringing with them all their
personal belongings. An hour later, some people came to the house
of Jose Siao looking for private complainant and her cousin.

At this time, accused-appellant Rene Siao remained unaware of the

developments that unraveled in the residence of Jose Siao. In the
morning of May 24, 1994,6 accused-appellant made his usual rounds
]collecting the obligations of his fathers creditors. At noontime,
accused-appellant went directly to the retail store of his father
where he had lunch with his wife Gina, as was his habit. This was
the usual hour of his fathers siesta and he would tend to the store
in his fathers absence, as was his custom.

At about 9:00 p.m. of the same evening, a barangay tanod came to

the retail store and invited accused Gimena to the barangay hall.
Jose Siao and Ms. Paares would follow.

At the barangay hall, upon the complaint of a certain Rosalie

Sallentes (who claimed to be related to the Raymundo cousins),
Barangay Captain George Rama asked accused Gimena of the
whereabouts of Ester and Joy Raymundo. Accused Gimena
answered that he did not know. During the course of the
investigation, and under threat by the Barangay Captain that his
head would be broken if he did not tell the truth, accused Gimena
confessed to tying up the private complainant to force her to reveal
the place where his watch was being kept. He untied her after he
recovered his watch from under the ironing board.

The following evening, on May 28, 1994, accused Gimena was

picked up by policemen at the retail store of Jose Siao and brought
to the Tabo-an Police Station.
Neither the police nor the barangay tanod looked for accused-
appellant on the evenings of May 27 and 28, 1994.

Private complainant would file a complaint against accused-

appellant and accused Gimena on June 21, 1994.

After the case was filed but before trial commenced, a person who
presented himself as the father of private complainant set a
meeting with the Siaos. The father of private complainant
demanded 1 Million Pesos from the Siaos to drop the rape case." 7 cräläwvirtualibräry

As stated earlier, the trial court rendered a decision finding accused-

appellant Rene Siao guilty of the crime of rape as principal by
induction in accordance with Article 17(2) of the Revised Penal
Code.8cräläwvirtualibräry

Insisting on his innocence, accused-appellant assigns to the trial

court the following alleged errors:

"THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT SIAO

GUILTY BY INDUCEMENT

THE TRIAL COURT ERRED IN CHARACTERIZING THE

INCONSISTENCIES AS MINOR AND IMMATERIAL

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE

TESTIMONY OF THE PROSECUTION WITNESSES"9 cräläwvirtualibräry

The Court has carefully reviewed the records of this case and has
found accused-appellants contentions to be without merit. Against
the victims story, accused-appellant urges us to accept his own
version. But we cannot do so, for we agree with the trial courts
observation that a 14-year old girl from the province, nave and
innocent to the ways of the world, is incapable of concocting serious
charges against her employer and fabricating a story of aberrant
sexual behavior as can only be told by one who has been subjected
to it.

First, accused-appellants assertion that the failure of the

prosecution to present the gun used by him to force and intimidate
Ester Raymundo and Reylan Gimena to perform sexual intercourse
is fatal to the prosecutions cause is clearly untenable. This Court
has held in People vs. Travero, that "[t]he non-presentation of the
weapon used in the commission of the rape is not essential to the
conviction of the accused. It suffices that the testimony of the rape
victim is credible because the established rule is that the sole
testimony of the offended party is sufficient to sustain the accuseds
conviction if it rings the truth or is otherwise credible."10
cräläwvirtualibräry

As to fact that accused-appellant Rene Siao forced and intimidated

at gunpoint Ester Raymundo and Reylan Gimena to have carnal
knowledge of each other, we are convinced that the same has been
adequately proved by the prosecutions evidence. Even as under
settled jurisprudence, the evidence for conviction must be clear and
convincing to overcome the constitutional presumption of
innocence, we find the straightforward, consistent and candid
manner in which Ester Raymundo related her harrowing experience
in the hands of accused-appellant as bearing all the earmarks of
verity. Not only that, the corroborative testimony of Reylan Gimena
was consistent in material respects with that of Ester Raymundo.

Ester Raymundo testified as follows:

Q: Now, in your position which you have stated awhile ago, what
did Reylan do with his penis?

COURT

"If he did anything?" To avoid any leading question. You can ask,
"What happened next?" "What did he do?" But to ask what did he
do with his penis . . .

FISCAL BUENVIAJE

My questions are personal and very . . .

COURT

You can frame your question by just adding a few words "if he did
anything."
WITNESS

A: We did the sexual act (kayatan).

FISCAL BUENVIAJE

Q: Was he successful in penetrating you?

A: Yes.

Q: And all the time Rene Siao was holding both of your legs?

ATTY. SENINING

One of the . . .

COURT

Sustained. That is very leading.

Q: Now, what did you feel when Reylan penetrated you?

A: I felt excruciating pain.

FISCAL BUENVIAJE

Q: So, what did you do because of that pain?

WITNESS

A: I sat down when it was finished.

Q: How many minutes was Reylan doing the sexual act, the push-
and-pull above you?

ATTY. FERNANDEZ

Your Honor, I would suggest, because there is no testimony to the

effect that there was a push and pull. There was no establishment,
Your Honor, the penetration was established but whether there was
a push and pull after the first penetration. Just for justice in this
matter it must be established by simple questions.
COURT

Okay, ask simple questions.

FISCAL BUENVIAJE

Q: Did Reylan make a push-and-pull?

ATTY. SENINING

That is leading also.

FISCAL BUENVIAJE

That is natural, that necessarily follows:

COURT

Let the Court ask the question:

Q: What was the body movement of Reylan when he had a sexual

intercourse with you?

A: He kept on push . . .

COURT

"He made a push-and-pull movement."

ATTY. FERNANDEZ

Making pumping action.

FISCAL BUENVIAJE

That is push-and-pull. I object that "pumping." This is not an

artesian well.

COURT

You will just Americanize "pumping."

FISCAL BUENVIAJE

Q: For how many minutes was Reylan doing the sexual act of push-
and-pull?

WITNESS

A: Ten (10) minutes, more or less.

Q: Now, while Reylan was doing the push-and-pull for about 10

minutes, what was Rene Siao doing all the time?

A: Rene Siao kept on looking and said, "Why did it take long to
penetrate?

Q: Now, what was the position of both of the hands of Rene Siao?

COURT INTERPRETER

Witness demonstrating that Rene Siao held her both legs in order to
spread it apart.

FISCAL BUENVIAJE

I would like to add some comments to the interpretation. According

to the witness, while Reylan Gimena was doing the sexual act, all
the time Rene Siao was holding both her legs. That is precisely the
meaning.

Another question.

Q: Did Reylan Gimena reach that climax wherein he was like being
electrocuted?

COURT

Sustained; she does not even know what is a climax.

FISCAL BUENVIAJE

Q: Was Gimena able to consummate the act of rape on you?

ATTY. SENINING

That is a matter of law and interpretation.

COURT

Sustained. Anyway, you have the medical certificate. Next question.

FISCAL BUENVIAJE

Q: Now, after that 10 minutes wherein Gimena raped you while

Rene Siao was holding both of your legs, what happened next?

ATTY. SENINING

I would just like to correct the word "rape."

ATTY. FERNANDEZ

I would also . .

ATTY. SENINING

I would suggest . . . (not finished)

FISCAL BUENVIAJE

"Sexual act."

ATTY. SENINING

All right.

WITNESS

A: Rene Siao then said that "You do it again."

COURT

Then continue.

WTNESS
A: Then Reylan Gimena answered that he cannot do it because he is
already very tired.

FISCAL BUENVIAJE

Q: Did Rene Siao allow Gimena to take a rest?

ATTY. SENINING

Again, Your Honor, please.

COURT

What is your ground?

ATTY. SENINING

Leading.

COURT

Reform.

FISCAL BUENVIAJE

Q: What did Rene Siao do when at first Gimena refused because he

was tired?

A: He pointed the handgun to Reylan Gimena.

Q: What portion of the body of Gimena was pointed with a gun by

Rene Siao?

A: At the left temple.

Q: So, what did Reylan do when Siao pointed the pistol on his
temple?

A: He obeyed the order because he was afraid of the handgun.

FISCAL BUENVIAJE
Q: So, what did Reylan do to you for the second sexual act?

ATTY. FERNANDEZ

Your Honor, please, I would object, I would rather suggest that the
question, "What did Reylan do after?"

FISCAL BUENVIAJE:

After the statement.

COURT

Sustained. You already assumed that there was a second.

FISCAL BUENVIAJE

Okay, I will reform.

Q: What did Reylan Gimena do when Siao pointed his gun on his
temple?

WITNESS

A: He obeyed the order because he is pointed with a handgun.

Q: What position this time?

A: He was made to lie at my side.

Q: As you were now on your side, what did Reylan Gimena do?

A: Reylan Gimena also laid at his side.

Q: What did Rene Siao do, if any?

A: He kept on pointing the handgun.

Q: To whom?

A: Me.
FISCAL BUENVIAJE

Q: Was Gimena able to successfully penetrate you this second time

around?

ATTY. SENINING

May I just request, Your Honor, that the . . . (not finished)

COURT

Reform.

FISCAL BUENVIAJE

Q: You said Gimena also . . . (not finished)

COURT

Just ask, "What happened next?"

WITNESS

A: He kept on push-and-pull toward my private part.

Q: Where did Gimena position himself in relation to you?

COURT INTERPRETER

The witness demonstrated by pointing at her left back.

COURT

Q: Were you face-to-face or was he behind you?

A: He is behind.

FISCAL BUENVIAJE

Q: And what did he do?

ATTY. FERNANDEZ
I think that has been answered that he made push-and-pull.

Q: Was he able to penetrate you the second time?

WITNESS

A: Yes, Sir.

Q: For how many minutes, if you still remember, did Gimena do the
push-and-pull action from your behind?

A: Ten (10) minutes.

Q: Was he able to accomplish his act?

ATTY. SENINING

What act?

FISCAL BUENVIAJE

Sexual act.

ATTY. SENINING

Already answered, penetrated.

FISCAL BUENVIAJE

But there is still climax that is why I am asking.

ATTY. FERNANDEZ

I think I have no objection to the question whether Reylan Gimena

ejaculated.

ATTY. SENINING

In fact that will be part of my cross-examination.

WITNESS
A: Maybe.

Q: Now, after that 10 minutes, what happened next?

A: After the 10 minutes he let me assume a dog position (patuwad).

FISCAL BUENVIAJE

Q: Who ordered you to do the dog position?

A: Rene Siao.

Q: What did he do to you?

A: He told me to do it again but I was already tired and he pointed

the handgun to me.

Q: Did you assume the dog position upon the order of Rene Siao?

A: Yes, because I was afraid of the handgun.

Q: And what did Reylan do this time, if any?

A: Reylan answered that "I will not do that because I am already

very tired."

Q: What did Rene Siao do upon hearing the statement of Reylan

that he would not comply?

A: He again pointed his handgun.

Q: Did Reylan comply wen Rene Siao pointed the gun to him?

A: Yes, because he was afraid.

Q: And what did Reylan do to you?

A: Reylan made a push-and-pull because I was made by Rene Siao

to assume the dog position (patuwad).

Q: Was Reylan able to penetrate you this time?

A: Yes, and I even shouted.

Q: What did you shout?

A: "Tabang!" I asked for help "Tabang!" and then there was

somebody who knocked. There was a knock made by my Ate and
she asked, "What are you doing there?" And Rene Siao did not
listen.

FISCAL BUENVIAJE

Q: According to you Rene Siao did not listen. In effect, did he order
you and Reylan to continue the act?

WITNESS

A: Yes, Sir.

Q: While Reylan Gimena was doing the sexual act on you, what was
Rene Siao doing all the time?

A: He kept on pointing the handgun and kept on looking with wide

eyes (siga).

Q: For about how many minutes was that dog position continued
until termination?

A: Five (5) minutes.

Q: After that, what happened next?

A: Then Rene Siao told us to do the act in the room of the boys." 11 cräläwvirtualibräry

Corroborating the foregoing, Reylan Gimena testified as follows:

FISCAL BUENVIAJE

Q: After the sucking incident, what happened next?

A: The woman was ordered to lie down.

COURT
The Court would like to ask one question.

Q: When Ester was sucking your penis, did you ejaculate or did you
feel warm liquid coming out of your penis?

A: No, Your Honor.

Continue, Fiscal.

FISCAL BUENVIAJE

Q: Now, you said Rene Siao ordered Ester to lie down, did she
comply?

A: Yes, because he pointed a firearm to her.

Q: Where did she lie down?

A: On the bed, sir.

Q: What was the position of Ester as she was lying down?

A: She was lying face upward.

Q: What was the position of her legs?

A: Straight, sir.

FISCAL BUENVIAJE

Q: Now, as Ester was already lying down straight upon order of

Rene Siao, what happened then?

A: I was told by him to go on top of the woman.

Q: What was the exact word of Rene Siao in ordering you so?

A: He said go on top of the woman so that you can deflower her.

Q: Did you understand what Rene Siao told you?

A: Yes, sir.
Q: What was your understanding?

A: He wants the woman to be raped.

COURT

Q: I think you have not answered the question of the prosecuting

fiscal. If you can still recall, what were the words uttered or used by
Rene Siao?

A: He said that he wants me to fuck the woman and he wants it

fast.

Q: And did you lie on top of the woman of Ester?

ATTY. SENINING

Leading.

COURT

Your just reform.

FISCAL BUENVIAJE

Q: What did you do?

A: I got on top of the woman.

Q: Did you make a push and pull action on the vagina of Ester?

ATTY. SENINING

Leading, Your Honor.

FISCAL BUENVIAJE

Naturally, it follows. In the interest of justice, Your Honor.

COURT

Let the Court ask the question.

Q: Were you able to penetrate or not?

A: I was not able to penetrate yet.

FISCAL BUENVIAJE

Q: When you were not able to penetrate Ester, what was the
reaction of Rene?

A: He said, "How is that?" Is it not inserted yet?" And I answered

back, "Not yet, Pard, because it is hard." And he said, "If it is hard
we will separate her legs."

Q: In effect, did Rene fulfill his words of spreading the legs of Ester?

ATTY. SENINING

Leading, Your Honor, because the word is "we." "We will spread her
legs."

COURT

You just reform.

Q: What, if anything, did Rene do?

FISCAL BUENVIAJE

Q: After uttering those words that we will separate her legs?

ATTY. FERNANDEZ

No. He answered "bilangkad," Your Honor.

COURT

No, Its on tape.

ATTY. FERNANDEZ

After he said "kuan, he said "bilangkad."

COURT

Although you put it on record. No.

COURT INTERPRETER

Witness motioning as if he was spreading.

COURT

To satisfy Atty. Fernandez. You rewind.

(The tape was rewinded and played by the stenographer.)

COURT

What is audible is the use of the word "kuan."

You clarify this point.

FISCAL BUENVIAJE

We have the prerogative to ask.

COURT

Never mind. You ask.

FISCAL BUENVIAJE

Please do not refrain us from clarifying.

COURT

Clarify.

FISCAL BUENVIAJE

Because we will clarify what is not clarified.

Q: After uttering those words, what did Rene do, if any?

A: He held the woman and spread her legs.

Q: At this juncture wherein Rene Siao was already holding the legs
of Ester in order to spread it, were you able to penetrate Ester?

ATTY. SENINING

Leading again, Your Honor, please.

FISCAL BUENVIAJE

This is cross-examination.

COURT

I will allow.

FISCAL BUENVIAJE

How can we . . .

COURT

Never mind. I will allow.

WITNESS

A: Yes, that was the time I penetrated.

COURT

Q: So your penis was stiff?

A: Yes, Your Honor.

Q: Did you like what you do?

A: No, Your Honor.

Next question.

FISCAL BUENVIAJE
Q: Did you ejaculate?

A: Yes, sir.

COURT

Q: What did you feel when you ejaculated?

A: I do not know because that was my first time, Your Honor, with a
woman.

FISCAL BUENVIAJE

Q: You said you were able to penetrate Ester while Rene Siao was
holding both of her thighs, then spreading it, and you said you
ejaculated. After that, what happened next?

A: He told the woman to lie on her side.

Q: Did Ester comply to lie on her side?

A: Yes, because a firearm was pointed at her.

COURT

Q: Did you notice if Ester was bleeding?

A: No, Your Honor.

Q: In her vagina?

A: Yes, Your Honor.

FISCAL BUENVIAJE

Q: At that position wherein Ester was lying on her side, what did
Rene do?

A: He ordered another position.

Q: Did you comply to fuck Ester in that position as ordered by Rene

ATTY. SENINING

There is no basis yet.

COURT

There was no question yet. There was no evidence that he was

commanded to have sexual intercourse.

ATTY. SENINING

He told . . .

COURT

Not yet. He only testified that Ester was made to lie sideways.

FISCAL BUENVIAJE

Q: After Ester complied to the order of Rene to lie on her side, what
more happened?

A: That was the time that mine penetrated.

Q: Was that upon order of Rene?

ATTY. SENINING

Leading again, Your Honor.

COURT

Sustained.

FISCAL BUENVIAJE

Q: You said you were able to penetrate Ester as she was on her
side, is that your own volition to fuck her on that position?

ATTY. SENINING

Leading, Your Honor.

FISCAL BUENVIAJE

That is precisely the consequence.

COURT

Let the Court ask the question.

Q: Why did you fuck her on that position?

A: Because it was the order of Rene, Your Honor.

Sometimes it is the way you phrase the question. Okay, continue.

FISCAL BUENVIAJE

Q: After this side position, what happened next?

A: He ordered the woman to assume the doggy position.

COURT

Lets just understand. "Gipatuwad." Lets just assume.

ATTY. FERNANDEZ

Crouching position.

COURT

Crouching.

FISCAL BUENVIAJE

Q: In effect, did Ester comply to pose in a doggy position?

A: Yes, because a firearm was pointed to her.

COURT

You just put there parenthesis (gipatuwad).

FISCAL BUENVIAJE

Q: As Ester was in a dog position, did Rene utter anything to you?

ATTY. SENINING

Hearsay again, Your Honor. Leading, Your Honor.

COURT

You just reform.

FISCAL BUENVIAJE

Q: After Ester assumed that dog position, what did Rene do, if any?

A: He ordered me.

Q: What was the order?

ATTY. SENINING

I only request that the DSWD at my back, Your Honor, should not
be allowed to coach the witness. I have no objection . . .

COURT

I am warning the representative of the DSWD to leave the

interpreter alone.

ATTY. SENINING

Are you interested in this case?

COURT

Never mind, Compaero. There is a warning already.

(The last question of Fiscal Buenviaje was interpreted and answered

by the witness).

COURT
I understand because he is not used to using obscene words.

FISCAL BUENVIAJE

He is not accustomed.

ATTY. FERNANDEZ

We just would like to manifest that the witness is not familiar in

using obscene words.

COURT

We do not know. The understanding of the court is he is hesitant to

use obscene words.

ATTY. SENINING

Not because that . . .

ATTY. FERNANDEZ

I would like to manifest that the witness is hesitant to use obscene

words.

FISCAL BUENVIAJE

Q: What did you do upon that order of Rene?

A: He ordered me to fuck the woman, sir.

Q: Did you comply with the order to fuck Ester?

A: Yes, because I was afraid as he kept on pointing his firearm to

me.

Q: And you were able to penetrate Ester on that position?

A: Yes, sir.

COURT
Q: By the way, at this juncture your penis was still stiff after the
third position?

ATTY. SENINING

Fourth.

ATTY. FERNANDEZ

Third, Your Honor.

COURT

Third. The sexual intercourse. Oral sex first. After the third sexual
intercourse.

ATTY. FERNANDEZ

Third penetration, Your Honor.

WITNESS

A: Yes, Your Honor.

COURT

Q: Were you afraid at that juncture or point of time?

A: I was still afraid, Your Honor, because he kept on pointing his

firearm to me.

Q: Did you like what did the third time, that is, penetrating Ester in
a doggy position?

A: No, Your Honor.

Q: But you insist that your penis was still stiff?

A: Yes, Your Honor.

Q: Did you easily penetrate the vagina of Ester?

A: Not so easy, Your Honor."12 cräläwvirtualibräry

To sum up, Ester Raymundo and Reylan Gimena were forced and
intimidated at gunpoint by accused-appellant Rene Siao to have
carnal knowledge of each other. Rene Siao called Reylan Gimena
inside the womens quarter. After Rene Siao closed the door, he told
Reylan, "Reylan, birahi si Ester". Since Reylan was at a loss as to
what to do, Rene Siao commanded Ester at gunpoint to "suck (um-
um) the penis" of Reylan Gimena.13 Both Reylan and Ester
performed the sexual act because they were afraid they will be
killed. Thereafter, accused-appellant commanded Reylan to rape
Ester in three (3) different positions, pointing the handgun at them
the whole time.

The testimony of Ester and Reylan were assessed by the trial court
to be credible. Unless certain facts of substance and value were
overlooked which, if considered, might affect the result of the case,
its assessment must be respected for it had the opportunity to
observe the conduct and demeanor of the witnesses while testifying
and detect if they are lying.14 We find no reason to deviate from the
findings of the trial court. If their story had only been contrived,
Ester and Reylan would not have been composed and consistent in
the face of such intense and lengthy interrogation.

Second, accused-appellant faults the trial court for giving credence

to the testimonies of Ester Raymundo and Reylan Gimena despite
being fraught with substantial inconsistencies with regard to the
following points: 1. Ester testified that Reylan pulled her to the
womens quarter, while Reylan testified that when he entered the
room Ester was already tied up in the bed; 2. Ester testified that
she was lying "face down" on the bed, while Reylan testified that
she was lying "face upward"; 3. Ester testified that before being
made to undress, accused-appellant Rene Siao wound electrical wire
around her neck and Gimena made no mention of this; 4. Ester
testified that Gimena ejaculated while performing the sexual acts
while Gimena testified that he did not ejaculate; and lastly, 5. Ester
testified that she had sought help from her cousin Joy Raymundo on
the way out from the womens quarter while Reylan testified that
she just walked slowly towards the mens quarters as ordered by
accused-appellant.

It can readily be seen that the alleged inconsistencies are

inconsequential considering that they refer to trivial matters which
have nothing to do with the essential fact of the commission of
rape, that is carnal knowledge through force and intimidation. This
Court has consistently adhered to the rule that inconsistencies on
minor details of the testimonies of witnesses serve to strengthen
their credibility as they are badges of truth rather than an indicia of
falsehood.15 If at all, they serve as proof that the witnesses were
not coached and rehearsed.

Third, accused-appellant contends that the testimonies of the

prosecution witnesses do not conform to common experience due to
the following reasons: Reylan Gimena ejaculated three times in a
span of less than 30 minutes; the rape took place within earshot
and near the presence of other people; Ester and Reylan did not
make a dash for freedom during the ten minutes it took Rene Siao
to follow them from the womens quarter to the males quarter where
the latter wanted them to resume their copulation; a barangay
tanod was present at the place of the alleged rape at about 4:00
p.m.; the private complainant reported the incident to an old man
she chanced upon on her way home.

Again, the points raised by accused-appellant are trite and of no

consequence. First of all, the important consideration in rape is not
the emission of semen but the penetration of the female genitalia
by the male organ.16 Well-settled is the rule that penetration,
however slight, and not ejaculation, is what constitutes
rape.17 Thus, this factor could not affect the case for the
prosecution. Second, accused-appellants argument that it is
impossible to commit a rape in house where there are many
occupants is untenable. We have held in a number of cases that lust
is no respecter of time and place.18 It is not impossible to perpetrate
a rape even in a small room. Rape can be committed in a house
where there are many other occupants.19 Third, Ester and Reylan
could not be expected to flee or even to attempt to flee under the
circumstances. Undoubtedly, considering that Ester was only
fourteen-years old and a newly employed housemaid, while Reylan
Gimena a seventeen-year old houseboy, they were easily
intimidated and cowed into submission by accused-appellant, who
aside from being their "amo" or employer, was menacingly
threatening to kill them or their family with a gun if they did not do
as he commanded them to do. Thus, it was not improbable for them
not to attempt to escape when as accused-appellant perceived they
had an opportunity to do so. Moreover, while most victims will
immediately flee from their aggressors, others become virtually
catatatonic because of the mental shock they experience.20 It was
also not improbable for them to report the incident to an old man
they met on the road as there was no on else to turn to.

In a bid to exculpate himself, accused-appellant presents a totally

different version of the story. Accused-appellant sought to establish
by his story that since Ester was caught stealing money and the
personal belongings of the people in the household she had motive
to implicate accused-appellant in such a serious charge. We cannot
see how a 14-year old girl from the rural area could fabricate such
charges borne out of a desire for revenge. We agree with the
following explanation by the trial court:

"The court cannot believe that a 14-year-old girl who is a stranger

in the city will vent her ire on Rene Siao. If Rene Siao were to be
believed that he did not confront Ester about the latters act of
committing the crime of theft, why would Ester take revenge on
Rene Siao? The court cannot believe that this 14-year-old
probinsyana will concoct a story so as to do damage against
business men like Jose Siao, Beatriz Baricuatro and Rene Siao. As a
matter of fact, filing a case in court would mean untold misery and
inconvenience. It will expose her to shame. She mustered enough
courage if only to make the truth prevail. She ventured to assume
the role of David against Goliath."21
cräläwvirtualibräry

On the contrary, this theory of accused-appellant backfires on him

because it appears that due to the thefts allegedly committed by
Ester, Rene Siao decided to vent his ire by subjecting her to a
perverted form of punishment and using Reylan as an instrument
thereof. As to the charge of accused-appellant that the father of
Ester tried to extort a huge sum of money from the accused-
appellants family so that the case against him will be dropped, we
agree with the trial court that this contention is largely self-serving
as it is uncorroborated.

All told, we agree with the trial court that the testimony of Ester
Raymundo as well as the testimony of Reylan Gimena corroborating
the same support the prosecutions version of the fateful incident.

The rape was committed on May 27, 1994 or after the effectivity of
R.A. 7659 on December 31, 1993.22 The governing law, Article 335
of the Revised Penal Code as amended by R.A. No 7659 imposes the
penalty of reclusion perpetua to death, if committed with the use of
a deadly weapon. It reads:

"When and how rape is 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 or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a

deadly weapon, 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 reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is

committed, the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is
committed with any of the following attendant circumstances:

1. when the victim is under eighteen (18)years of age and the

offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.

2. when the victim is under the custody of the police or military

authorities.

3. when the rape is committed in full view of the husband, parent,

any of the children or other relative within the third degree of
consanguinity.

4. when the victim is a religious or child below seven (7) years old.

5. when the offender knows that he is afflicted with Acquired

Immune Deficiency Syndrome (AIDS) disease.

6. when committed by any member of the Armed Forces of the

Philippines or the Philippine National Police or any law enforcement
agency.

7. when by reason or on the occasion of the rape, the victim has

suffered permanent physical mutilation.

Accused-appellant was held guilty of rape with the use of a deadly

weapon, which is punishable by reclusion perpetua to death.23 But
the trial court overlooked and did not take into account the
aggravating circumstance of ignominy and sentenced accused-
appellant to the single indivisible penalty of reclusion perpetua. It
has been held that where the accused in committing the rape used
not only the missionary position, i.e. male superior, female inferior
but also the dog position as dogs do, i.e. entry from behind, as was
proven like the crime itself in the instant case, the aggravating
circumstance of ignominy attended the commission thereof.24 cräläwvirtualibräry

However, the use of a weapon serves to increase the

penalty.25 Since the use of a deadly weapon increases the penalty as
opposed to a generic aggravating circumstance which only affects
the period of the penalty, said fact should be alleged in the
information, because of the accuseds right to be informed of the
nature and cause of the accusation against him.26 Considering that
the complaint (which was later converted into the Information)
failed to allege the use of a deadly weapon, specifically, that herein
accused-appellant was armed with a gun, the penalty to be
reckoned with in determining the penalty for rape would
be reclusion perpetua, the penalty prescribed for simple rape under
Article 335, as amended by R.A. No. 7659. Simple rape is
punishable by the single indivisible penalty of reclusion
perpetua,  which must be applied regardless of any mitigating or
aggravating circumstance which may have attended the commission
of the deed.27 Hence, the penalty of reclusion perpetua  imposed by
the trial court is correct.

As a final matter, the trial court erred in ordering accused-appellant

Rene Siao to pay the complainant only the civil liability arising from
the offense in the amount of P50,000.00. In addition, it should have
ordered accused-appellant to pay the offended party moral
damages, which is automatically granted in rape cases without need
of any proof.28 Currently, the amount of moral damages for rape is
fixed at P50,000.00.29 Moreover, the presence of one aggravating
circumstance justifies the award of exemplary damages pursuant to
Article 2230 of the Civil Code of the Philippines30 We find the
amount of P20,000.00 as exemplary damages reasonable on
account of the fact that the aggravating circumstance of ignominy
attended the commission of the crime of rape.

WHEREFORE , the decision of the Regional Trial Court, Branch 13,

Cebu City, is hereby AFFIRMED with the MODIFICATION that
accused-appellant Rene Siao is ordered to pay P50,000.00 to Ester
Raymundo by way of moral damages, and P20,000.00 by way of
exemplary damages in addition to the amount of P50,000.00 which
the trial court ordered him to pay as indemnity.

SO ORDERED.
[G.R. NOS. 148712-15 - January 21, 2004]
 PEOPLE OF THE PHILIPPINES, Appellee, v.  DOMINADOR CACHOLA y SALAZAR, ERNESTO
AMAY y PASCUA, NESTOR MARQUEZ y MANUEL, BENJAMIN LAEGEN y CAMADO, RODOLFO
SAGUN y JIMENEZ, RODEMIR GUERZO y LATAOAN, MELLKE IGNACIO y SALVADOR, and
NELSON C. ECHABARIA, Appellants.

DECISION

PER CURIAM:

In just an instant, 12-year-old Jessie E. Barnachea lost his mother, an elder brother, an uncle, and a
cousin as a result of the carnage that took place at around 6:00 p.m. of 28 December 1999 right
inside their house in Barangay Calumbaya, Bauang, La Union. Their horrible death was attributed to
herein appellants, who, however, pleaded not guilty to the four separate informations for murder.

At the trial before the Regional Trial Court of Bauang, La Union, Branch 67, the prosecution presented
as witnesses Jessie and his brother and neighbors, as well as several police officers. Their testimonies
disclose as follows:

Jessie was about to leave their house to watch cartoons in his uncles house next door when two

armed men suddenly entered the front door of their house. The two ordered Jessie to drop to the

floor, and then hit him in the back with the butt of a long gun. Without much ado, the intruders shot

to death Jessies uncle, Victorino V. Lolarga, who was then in the living room. Jessie forthwith crawled

and hid under a bed, from where he saw the feet of a third man who had also entered the house. The

men entered the kitchen and continued shooting. When the rampage was over and after the

malefactors had already departed, Jessie came out of his hiding place and proceeded to the kitchen.

There he saw his mother, Carmelita Barnachea; his brother Felix Barnachea, Jr.; and his cousin

Rubenson Abance - all slaughtered.1

Meanwhile, Jessies eldest brother, Robert E. Barnachea, was in his uncles house watching television
with his aunt and young cousins when he sensed a commotion outside. When Robert went out to see
what was transpiring, he saw armed men running towards their house. One of them turned and
pointed a gun at him, prompting him to scamper away and hide at the back of his uncles house. From
where he was hiding, he noticed a stainless jeep, with blue rim and marking "fruits and vegetables
dealer," parked in front of the fence of their house. Standing behind the jeep were three armed men
wearing bonnets, with only their nose and eyes exposed. In the next instant, he heard gunshots and
then saw men running from his house. The men hurriedly boarded the jeep and left the place. 2

The jeep did not go unnoticed by the neighbors. Russel Tamba was with some friends in front of Rodas
Store, around 100 meters away from the Barnachea residence, when the jeep passed by very slowly
going towards the Barnachea residence. According to him, the jeep had a marking "El Shaddai" in
front, aside from the marking "fruits and vegetables dealer" on the sides. 3 Francisco Andrada was also
talking with some people in front of the Calumbaya Barangay Hall, only five meters away from Rodas
Store, when he noticed that jeep, with the "El Shaddai" marking, pass by. 4 Not long after, both heard
gunshots and later saw the jeep pass by again, this time running very fast. 5

The incident was immediately reported to the police, and the description of the "El Shaddai" jeep used
by the malefactors was relayed through radio to the police stations in the province of La Union. 6 At
around 7:45 p.m., the jeep was intercepted at a checkpoint set up in the highway by the police force
in Aringay, La Union. On board were the eight appellants. No firearms were found in the vehicle. The
jeep and the eight appellants were thereafter brought to the Aringay police station and then turned
over to the Bauang police.7
When the Chief of Police of Bauang Benjamin M. Lusad was informed of the apprehension of the eight
appellants, he went to the Barnachea residence, where he came to know that Jessie was an
eyewitness. He invited Jessie to ride with him to pick up the suspects. While Lusad was supervising
the boarding of the suspects into the vehicle, Jessie was in another police vehicle with PO3 Juan
Casern, Jr., to see whether he could recognize any one of the eight men. Jessie pointed to Dominador
Cachola and Ernesto Amay as the two armed men who entered his house and killed his relatives.
During the police line-up at the Bauang Police Station, Jessie again identified Cachola and Amay as the
assailants.8 The next day, when the police conducted the third confirmatory investigation, which was
to present Jessie with photographs of the suspects, Jessie identified the two for the third time.

The eight appellants were thereafter subjected to paraffin test. But only the right hands of Cachola
and Amay yielded positive results for gunpowder nitrates. 9

The Death Certificates attest to the gruesome and merciless killings. Carmelita sustained one gunshot
wound on her head and three on her body;10 Felix, Jr., two gunshot wounds on his head and on his
body, and stab wounds on his chest and arms; 11 Victorino, two gunshot wounds on his head, three on
his body, and with his penis excised;12 Rubenson, one gunshot wound on his head and a stab wound
that lacerated his liver.13

The testimonies of the other prosecution witnesses were dispensed with upon the stipulation by the
public prosecutor and the counsels for the appellants that the nature of their testimonies would be
that (1) PO3 Juan Casern, Jr., was inside the police car with Jessie when the latter recognized
appellants Cachola and Amay; (2) Mark Garcia would corroborate the testimony of Felix Andrada
regarding the description of the jeep; (3) Felix Barnachea, Sr., suffered actual damages amounting to
P177,000 as a result of the death of his wife Carmelita and son Felix, Jr.; (4) a police officer of
Aringay, La Union, flagged down the jeep at the checkpoint and saw the appellants on board; and (5)
a police officer of Bauang, La Union, would identify the pictures taken at the crime scene.

After the prosecution had rested its case, the defense counsels orally asked for leave of court to file a
demurrer to evidence. The trial court denied the motion outright and set the schedule for the
presentation of the evidence for the defense. 14 Instead of presenting their evidence, however, the
appellants, through their respective counsels, filed a Demurrer to Evidence 15 even without leave of
court.

On 26 September 2000, the trial court rendered a decision 16 (1) convicting (a) Cachola and Amay, as
principals, of four counts of murder and sentencing them to suffer four counts of the supreme penalty
of death; and (b) Marquez, Laegen, Sagun, Guerzo, Ignacio, and Echabaria, as accomplices, of four
counts of murder and sentencing them to suffer four counts of the indeterminate penalty of eight
years of prision mayor as minimum to twelve years and one day of reclusion temporal as maximum;
and (2) ordering all of them to pay the heirs of the victims a total of P300,000 as death indemnity;
P200,000 as moral damages; and P177,000 as actual or compensatory damages.

Before us on automatic review, appellants Cachola, Sagun, Ignacio, and Marquez contend that the trial
court erred (1) in finding conspiracy among them and their co-appellants; (2) in finding proof beyond
reasonable doubt; and (3) in not dismissing the informations outright despite a motion before
arraignment, there having been a clear illegal arrest and denial of due process.

As for appellants Amay, Guerzo, Laegen, and Echabaria, they assert that the trial court erred (1) in
finding appellant Amay guilty beyond reasonable doubt as principal in the crime of murder; and (2) in
not acquitting appellants Guerzo, Laegen, and Echabaria for insufficiency of evidence and on
reasonable doubt.

In its Consolidated Reply Brief, the Office of the Solicitor General (OSG) recommends the affirmance
of the conviction for murder of appellants Cachola and Amay, and the acquittal of the other appellants
for failure of the prosecution to establish their identity and participation beyond reasonable doubt.

We agree with the recommendation of the OSG to acquit appellants Sagun, Ignacio, Marquez, Guerzo,
Laegen, and Echabaria. Upon a thorough review of the records of the case, we found nothing that
would show their participation in the commission of the crimes. Not one of the prosecution witnesses
identified them as among the malefactors who were at the Barnachea residence on that fateful day.
Surprisingly, even as the trial court declared that the prosecution failed to establish the actual
participation of the other appellants in the commission of the crime, it found that "they cooperated in
the execution of the offense by previous or simultaneous acts." 17 It appears, however, that the only
reason why they were implicated was that they were with Cachola and Amay on board the jeep that
was intercepted in Aringay, La Union, almost two hours after the killings. What constitute previous or
simultaneous acts that would make them liable as accomplices are not found in the decision or in any
evidence on record.

To hold a person liable as an accomplice, two elements must concur: (1) community of design, which
means that the accomplice knows of, and concurs with, the criminal design of the principal by direct
participation; and (2) the performance by the accomplice of previous or simultaneous acts that are not
indispensable to the commission of the crime. 18 In the present case, neither element was proved. The
mere presence of the six appellants in the company of appellants Cachola and Amay on board a jeep
is not evidence of their knowledge of, or assent to, the criminal design to perpetuate the
massacre.19 That they were found to be with appellants Cachola and Amay almost two hours after the
commission of the crime does not constitute previous or simultaneous act. Absent a link between the
crime and their presence in the jeep two hours later, we cannot consider their participation even as
accessories to the crime.

It is a basic evidentiary rule in criminal law that the prosecution has the burden of proving the guilt of
the accused beyond reasonable doubt. 20 If the prosecution fails to discharge that burden, the accused
need not present any evidence.21 Thus, for utter lack of evidence against the six appellants, their
acquittal is in order.

However, as regards appellants Cachola and Amay, we concur with the trial court and the OSG that
the prosecution had presented sufficient evidence to prove their guilt beyond reasonable doubt. The
credible testimony of, and positive identification by, Jessie Barnachea, which are corroborated by
forensic evidence, i.e., the positive results of the paraffin test on the right hands of Cachola and
Amay, constitute sufficient evidence to sustain their conviction.

As to the credibility of Jessie Barnachea, the trial court made the following observations:

The Court observed the demeanor of Jessie Barnachea on the witness stand and. .. did not observe

any indication of falsehood in his narration. He showed obvious readiness to answer questions

propounded to him. His reactions and answers to the questions displayed evident respect for truth. He

remained consistent on cross-examination. He positively identified accused Amay and Cachola as the

one who shot and killed his family. The Court did not observe any hesitancy or indication of

uncertainty - and his recital of the events appeared spontaneous. 22

There is nothing on record that gives this Court cause to interfere with the trial courts determination
of the credibility of Jessie. Indeed, his testimony was unwavering despite attempts of the defense
counsels to confuse or trap him. The alleged inconsistency between Jessies sworn statement and
testimony on the number of malefactors, if at all, does not detract from his credibility. That Jessie saw
two armed men enter his house is clear. While the defense claims ambiguity as to the presence of a
third man, Jessies statement easily reveals that the third man was not immediately mentioned
because he (the third man) only followed the two and Jessie did not see his face.

It is also pointed out that Jessies identification of Cachola and Amay runs counter to Roberts
testimony that the armed men were wearing bonnets. Again, from their testimonies, it is apparent
that the brothers saw different men. Besides, Robert also stated that one of the men did not have his
head covered. As to the alleged improbability of the lookouts wearing bonnets while the principal
shooters were unmasked, or of the malefactors sparing Jessie, suffice it to say that such
circumstances are not so incredible as to cast reasonable doubt on the truth of the narrated events.

In sum, none of the alleged inconsistencies, minor as they are, could leave us with doubt that Jessie
was present in his house and saw armed men shoot his relatives. Barely two hours had passed since
he witnessed the gruesome murders when Jessie identified appellants Cachola and Amay as the
malefactors. Reasonably, the memory of their faces was still fresh on his mind. Moreover, Jessie
identified the two appellants two times more at the police station and once in open court, and he
never faltered in his identification.

Significantly, the appellants have not imputed any ill motive to Jessie for testifying against Cachola
and Amay. Where there is no evidence to show a doubtful reason or improper motive why a
prosecution witness should testify against the accused or falsely implicate him in a crime, the said
testimony is trustworthy and should be accorded full faith and credit. 23

In all, there does not appear on record to be "some fact or circumstance of weight and influence which
the trial court has overlooked or the significance of which it has misapprehended or misinterpreted.
"24 We rely, therefore, on the competence of the trial court to decide the question of credibility of the
witnesses, having heard them and observed their deportment and manner of testifying during the
trial."25

The reliance by appellant Cachola on People v. Teehankee 26 is misplaced. In that case the negative
result of the paraffin test did not preclude a finding of guilt by the trial court, the reason being that the
accused was tested for the presence of nitrates only after more than 72 hours had lapsed from the
time of the shooting. In the present case, the paraffin test was conducted on the same night the
shooting incident occurred; hence, the lapse of only a few hours increases its reliability. While the
presence of nitrates on accuseds hand is not conclusive of guilt, it bolsters the testimony of an
eyewitness that the accused fired a gun.

As to whether the trial court erred in not allowing the appellants to present evidence after filing their
demurrer to evidence without leave of court, then Section 15, Rules 119 of the Rules of Court 27 is clear
on the matter, thus:

SEC. 15. - Demurrer to evidence. - After the prosecution has rested its case, the court may dismiss

the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the

prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court.

If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When

the accused files such motion to dismiss without express leave of court, he waives the right to present

evidence and submits the case for judgment on the basis of the evidence for the prosecution.

(Underscoring supplied).

The filing by the appellants of a demurrer to evidence in the absence of prior leave of court was a
clear waiver of their right to present their own evidence. To sustain their claim that they had been
denied due process because the evidence they belatedly sought to offer would have exculpated them
would be to allow them to "wager on the outcome of judicial proceedings by espousing inconsistent
viewpoints whenever dictated by convenience."28 Furthermore, it cannot be said that the waiver was
not clear. The trial court postponed the hearings on the motion for demurrer, even after leave of court
had been denied, and then granted extensions to Amay until he finally adopted the position of his co-
appellants. At no time other than in this automatic review was there any attempt that is contrary to
the waiver of the presentation of evidence.
Neither can the question of the legality of the warrantless arrest of the appellants be raised for the
first time before this Court. As arrests fall into the question of the exercise by the trial court of its
jurisdiction over the person of the accused, the question should have been raised prior to their
arraignment. That the appellants objected to the arrests prior to the arraignment 29 is unsubstantiated.
Their claim that they requested an extension of time to file a motion to quash the information or to
dismiss the case,30 which the trial court allegedly denied, cannot save the day for them. The fact
remains that before arraignment, no such motion was filed. Even assuming that their arrest was
illegal, their act of entering a plea during their arraignment constituted a waiver of their right to
question their arrest.31

We now discuss the circumstances that attended the commission of the crimes.

The information alleges the qualifying circumstances of treachery and evident premeditation. There is
no doubt that the killings were done with treachery, considering that the assailants suddenly barged in
and immediately went on a shooting rampage. We have time and again ruled that when the attack is
sudden and unexpected, there is treachery. 32 The presence of even this single qualifying circumstance
is sufficient to qualify the killing to murder. 33

As to the qualifying circumstance of evident premeditation, we find the same lacking, for there is no
evidence of planning or preparation to kill, much less of the time when the plot was conceived. 34

It may not be amiss to mention that the death certificate of Victorino Lolarga reveals that his penis
was excised. One may wonder whether such circumstance amounted to ignominy that can aggravate
the offense.

For ignominy to be appreciated, it is required that the offense be committed in a manner that tends to
make its effect more humiliating, thus adding to the victims moral suffering. Where the victim was
already dead when his body or a part thereof was dismembered, ignominy cannot be taken against
the accused.35 In this case, the information states that Victorinos sexual organ was severed after he
was shot and there is no allegation that it was done to add ignominy to the natural effects of the act.
We cannot, therefore, consider ignominy as an aggravating circumstance.

However, as regards Carmelita and Felix, Jr., we appreciate the aggravating circumstance of dwelling,
since it was alleged in the information and proved during the trial that they were killed inside their
house. Appellants Cachola and Amay, therefore, violated the sanctity of the said victims home.

Article 248 of the Revised Penal Code provides that the penalty for murder is reclusion perpetua to
death. In conjunction, Article 63 of the Revised Penal Code provides that when the law prescribes two
indivisible penalties, the greater penalty shall be imposed when in the commission of the deed, there
is present one aggravating circumstance. In the cases of Carmelita and Felix Jr., in Criminal Cases
Nos. 2324 and 2325, there is one aggravating circumstance and no mitigating circumstance to offset
it; hence, the higher penalty of death imposed by the trial court stands.

Three members of the Court maintain their adherence to the separate opinions expressed in People v.
Echegaray36 that Republic Act No. 7659, insofar as it prescribes the penalty of death, is
unconstitutional; nevertheless they submit to the ruling of the majority that the law is constitutional
and that the death penalty should accordingly be imposed.

But in the cases of Victorino and Rubenson, in Criminal Cases Nos. 2323 and 2326, there being no
aggravating or mitigating circumstance, the penalty should be reclusion perpetua, which is the lower
of the two indivisible penalties prescribed by law.

As regards the civil liability of appellants Cachola and Amay, we hold them jointly and severally liable
to pay the heirs of each of the victims death indemnity and moral damages each in the amount of
P50,000, or a total of P400,000. They are further ordered to pay the respective heirs of Carmelita and
Felix Jr. exemplary damages in the amount of P25,000, or a total of P50,000, in view of the presence
of one aggravating circumstance in the commission of the crime against the said victims. As to the
claim for damages by Felix Barnachea Sr. in the amount of P177,000, we sustain the same even if
only a list of expenses,37 not official receipts, was submitted because such amount was admitted by
the defense during the trial.38 Moreover, although there is no evidence as to the amount spent as a
result of the death of Victorino and Rubenson, their respective heirs shall be awarded temperate
damages in the amount of P25,000, since they clearly incurred funeral expenses. 39

WHEREFORE, the assailed decision dated 26 September 2000 of the Regional Trial Court of Bauang,
La Union, Branch 67, is hereby AFFIRMED insofar as DOMINADOR CACHOLA y SALAZAR and ERNESTO
AMAY y PASCUA are found GUILTY of four counts of murder in Criminal Cases Nos. 2323-26 and
sentenced to suffer the supreme penalty of death in Criminal Cases Nos. 2324 and 2325. The said
decision is, however, MODIFIED in that they are (1) sentenced to suffer the penalty of reclusion
perpetua, instead of death, in Criminal Cases Nos. 2323 and 2326; and (2) ordered to pay, jointly and
severally, the following damages:

A. P50,000 as death indemnity in favor of the heirs of each victim, or a total of P200,000; chanroblesvirtuallawlibrary

b. P50,000 as moral damages in favor of the heirs of each victim, or a total of P200,000; chanroblesvirtuallawlibrary

c. P25,000 as exemplary damages in favor of the respective heirs of Carmelita Barnachea and Felix

Barnachea Jr., or a total of P50,000; chanroblesvirtuallawlibrary

d. P177,000 as actual damages in favor of the heirs of Carmelita Barnachea and Felix Barnachea Jr.;

and cralawlibrary

e. P25,000 as temperate damages in favor of the respective heirs of Rubenson Abance and Victorino

Lolarga, or a total of P50,000.

The assailed decision is REVERSED insofar as appellants NESTOR MARQUEZ y MANUEL, BENJAMIN
LAEGEN y CAMADO, RODOLFO SAGUN y JIMENEZ, RODEMIR GUERZO y LATAOAN, MELLKE IGNACIO y
SALVADOR, and NELSON C. ECHABARIA are concerned, and another one is hereby rendered (1)
acquitting them of the crimes charged for insufficiency of evidence; (2) ordering their immediate
release from confinement unless their further detention is warranted by virtue of any lawful cause;
and (3) directing the Director of the Bureau of Corrections to submit a report on their release within
five days from notice hereof.

Costs de oficio.

SO ORDERED.

G.R. No. 101314 July 1, 1993

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JOHN

AMET BAELLO Y GUINTIVANO @ "TOTONG," accused-appellant.

The Solicitor General plaintiff-appellee. chanrobles virtual law library

Tomas J. Caspe for accused-appellant.

DAVIDE, JR., J.:
In an Information filed with the Regional Trial Court (RTC) of Pasig,
Metro Manila, on 18 October 1990, accused John Amet Baello @
"Totong" was charged with the crime of Robbery with Homicide. The
accusatory portion of the information reads as follows:

That on or about the 10th day of October, 1990 in the Municipality

of Pasig, Metro-Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating with one @ "Jerry"; whose true identity and present
whereabout is still unknown, and mutually helping and aiding with
one another, with intent to gain, without the knowledge and consent
of the owner thereof, entered the house of one Eustaquio Borja y
Reyes thru the window at the second floor of the said house, an
opening not intended for ingress or egress, and once inside the
same, did then and there willfully, unlawfully and feloniously take,
steal and carry away the following items, to wit:

One (1) 20" colored

television set marked
"Sharp" worth P11,269.00

One (1) stereo cassette

recorder colored black
worth P2,500.00

One (1) camera worth P1,000.00

Assorted jewelries (sic)

of still undetermined amount

___________

P14,769.00

belonging to Eustaqiuo Borja y Reyes, to the damage and prejudice

of the owner thereof in the total amount of P14,769.00; and that by
reason and on the occasion of the robbery, the above-named
accused, with intent to kill, armed with bladed instrument, did then
and there willfully, unlawfully and feloniously stab one Veronica
Borja y Ramos on the vital parts of her body, thereby inflicting upon
her mortal wounds which were the direct and immediate cause of
her death thereafter. 1 chanrobles virtual law library

The case was docked as Criminal Case No. 84253 and raffled off to
Branch 156 of the said court. chanroblesvirtualawlibrary chanrobles virtual law library

At his arraignment on 13 November 1990, the accused entered a

plea of not guilty. 2 Trial in the merits commenced on 18 December
1990. chanroblesvirtualawlibrary chanrobles virtual law library

After trial, the RTC promulgated its decision 3on 19 July 1991 finding
the accused guilty as charged. The adjudicatory portion thereof read
as follows:

IN VIEW OF ALL THE FOREGOING, the Court finds the accused JOHN
AMET BAELLO y Guintavino @ "TOTONG" guilty beyond reasonable
doubt of the crime of "robbery with homicide" under Article 294 (1)
of the Revised Penal Code  with the aggravating circumstance of
unlawful entry and hereby sentences said accused to suffer the
penalty of reclusion perpetua with all its accessory penalties, to
indemnify the heirs of Veronica Borja y Ramos in the amount of
P50,000.00, to pay the sum of P50,000.00 by way of reparation of
the stolen cassette, camera and assorted jewelries (sic), to pay the
further sum of P41,672.00 by way of reimbursement of the burial
and other related expenses and the additional sum of P20,000.00
and P10,000.00 as moral and exemplary damages, respectively, all
without subsidiary imprisonment in case of insolvency and to pay
the costs. chanroblesvirtualawlibrary chanrobles virtual law library

In the service of his sentence, the accused shall be credited in full

with the period of his preventive imprisonment. 4 chanrobles virtual law library

From this adverse decision, the accused interposed an appeal which

this Court accepted in a resolution dated 30 September 1991. 5 chanrobles virtual law library

The factual antecedents of this case, as culled from the records, are
as follows: chanrobles virtual law library

On 10 October 1990, at about five 5:00 o'clock in the morning.

Barangay Captain Eustaquio R. Borja awoke to find out that the
front door of his residence at No. 164 Evangelista Street, Barangay
Santolan, Pasig, Metro-Manila, was open and that their television
set in the sala was missing. Eustaquio told his wife about what he
saw and together they proceeded upstairs to the second floor to
check on their 22-year old daughter, Veronica Borja. They noticed
that the door to her room was open. Upon entering the room, they
were shocked to find the bloodied corpse of their daughter lying in
bed. The window of her room was open. Eustaqiuo instructed his
wife not to touch the body while he summoned the authorities. He
proceeded to the Barangay Hall from where he called the police. The
couple later discovered that a cassette player, a camera, and
various pieces of jewelry in their daughter's cabinet, all worth about
P50,000.00, were likewise missing. 6 chanrobles virtual law library

On the same day, P/Capt. Florante F. Baltazar, Medico-Legal Officer

of the PC/INP Crime Laboratory Services, performed an autopsy on
the body of the victim. He concluded that the cause of death was
"cardio-respiratory arrest due to shock and hemorrhage secondary
to multiple stab wounds." 7He stated in his autopsy report that the
victim suffered a total of four stab wounds; that the stab wound
inflicted on the victim's neck, which severed her jugular vein, was a
fatal one; and that at the time of the autopsy (3:25 p.m.), the
victim had been dead for more or less ten to twelve hours. 8 chanrobles virtual law library

At 6:00 p.m., the police were able to recover the missing television
set from the house of Eugenio Tagifa (or Tadifa), the husband of the
accused's sister. 9Tagifa was brought to the police station for
questioning. On 11 October 1990 at 10:55 a.m., Tagifa executed a
"Sinumpaang Salaysay" wherein he pointed to the accused as the
person who had placed the television set under the stairs of his
house. 10chanrobles virtual law library

On 13 October 1990 at 5:30 p.m., the accused was captured in

Bangkal, Makati by elements of the Intelligence and Special
Operations Unit (ISOU) of the Pasig Police and brought to the police
station. 11He made an oral admission of his participation in the
commission of the crime. 12He was then endorsed to the Criminal
Investigation Division (CID) for formal investigation. 13 chanrobles virtual law library
The accused was asked if he could understand, read and write
Tagalog, and he replied that he could. 14The accused was likewise
asked if he could afford the services of counsel; he answered that
he could not. 15Upon being asked if he was willing to avail of the
services of Atty. Eber Generoso of the Public Attorney's Office
(PAO), the accused replied in the affirmative. 16Atty. Generoso then
brought the accused away from the police investigators so that the
two of them could talk privately. 17Atty. Generoso inquired from the
accused whether or not he had any participation in the crime and
told him that if he had none, he must not make any admission or
statement as this would be prejudicial to him. The accused,
however, said, "Attorney, aaminin ko na ho total ginawa ko naman."
The accused then told Atty. Generoso that he was the one who took
the television set but denied having killed Veronia
Borja. 18Afterwards, the police started the formal investigation of
the accused in the presence of Atty. Generoso.The accused gave his
statement before the police and this was reduced into writting and
marked at the trial as Exhibit "L." Atty. Generoso read the
statement to the accused and then let the accused read it
himself. 19The accused gave then signed Exhibit "L," after which
Atty. Generoso also signed the same. chanroblesvirtualawlibrary chanrobles virtual law library

The body of the said document reads as follows:

Tanong: Ikaw ba ay marunong sumulat at umunawa ng Wikang

Tagalog na atin gagamitin sa pagsisiyasat na ito? chanrobles virtual law library

Sagot: Opo. chanroblesvirtualawlibrary chanrobles virtual law library

Pasubali: Bago ko simulan ang imbestigasyong ito, nais kong

ipabatid sa iyo na ikaw bilang isang mamayang Pilipino alinsunod sa
ating Binagong Saligang Batas ay may mga karapatan, gaya ng
mga sumusunod: chanrobles virtual law library

Na, karapatan mong manatiling tahimik at huwag sagutin and alin

man aking mga katanungan;

(Sgd.) (Sgd.)
Atty. Eber Generoso John Amet Baello
Na, karapatan mo ring kumuha ng isang piling abogado na maaring
tumulong sa iyo sa oras ng imbestigasyong ito;

(Sgd.) (Sgd.)
Atty. Eber Generoso John Amet Baello

Na, kung ikaw ay wala pang isang piling abogado, ikaw ay bibigyan
para sa iyong kapakanan ng libre;

(Sgd.) (Sgd.)
Atty. Eber Generoso John Amet Baello

Na, ikaw ay muli kong pinalahanan na ang lahat ng iyong sasabihin

dito ay maaring gamitin pabor O' laban sa iyong panig;

(Sgd.) (Sgd.)
Atty. Eber Generoso John Amet Baello

01. t: Kung gayon ay turan mong muli ang iyong tunay na

pangalan, idad, katayuan sa buhay at iba pang maaaring
pagkakailanman sa iyo? chanrobles virtual law library

s: JOHN AMET BAELLO y GUINTIVIANO, 20 anyos, binata, figthing

(sic) cock caretaker, tubong Liganes, Ili-Ilo (sic) at nakatira sa may
Nr. 145-B Interior, Evangelista ST., Santolan, Pasig, MM. chanroblesvirtualawlibrary chanrobles virtual law library

02. t: John Amet G. Baello, ipinakilala ko sa iyo si Atty. Eber

Generoso na abogado ng CLAO, at siya ang siyang tutulong sa iyo,
nais mo ba siyang maging abogado mo? chanrobles virtual law library

s: Opo. chanroblesvirtualawlibrary chanrobles virtual law library

03. t: Bibigyan ko muna kayo ng ilang minuto para kayo mag-usap

ni Atty. Generoso upang maintindihan mo ang ibibigay mong
salaysay. Sige magusap muna kayo (at this juncture this prober
allowing the affiant and Attorney to talk). chanroblesvirtualawlibrary chanrobles virtual law library

04. t: G. Baello, nais kong ipbatid (sic) sa iyo na ikaw ay

nasasngkot (sic) sa kasong Robbery with Homicide and Rape, ano
ang masasabi mo tungkol dito? chanrobles virtual law library
s: Robbery po lamang ang alam ko. chanroblesvirtualawlibrary chanrobles virtual law library

05. t: Saan at kailan naman nangyari itong sinasabi mong Robbery

kung iyong natatandaan? chanrobles virtual law library

s: Sa bahay po ni Bgy. Captain Borja sa may Santolan, Pasig,

MM. chanroblesvirtualawlibrary chanrobles virtual law library

06. t: Anong oras ninyo ba naman ginawa itong sinasabi mong

nakawan? chanrobles virtual law library

s: Mga humigit kumulang alas 4:00 ng mdaling (sic) araw ika-10 ng

Oktubre 1990. chanroblesvirtualawlibrary chanrobles virtual law library

07. t: Sino O' sinu-sino ba naman ang kasama mo ng nakawan

ninyo ang bahay ni Bgy. Capt. Borja? chanrobles virtual law library

s: Si Alias GERRY po lamang dalawa. chanroblesvirtualawlibrary chanrobles virtual law library

08. t: Papaano naman ninyo pinagnakawan ang bahay nina Bgy.

Capt. Borja?  chanrobles virtual law library

s: Kami po nitong si Gerry ay nagdaan sa may bintana ng second

floor ng bahay sa may harap ng basketball court. chanroblesvirtualawlibrary chanrobles virtual law library

09. t: Anu-ano ba naman and kinuha ninyo sa loob ng bahay nina

Bgy. Catp. (sic) Borja? chanrobles virtual law library

s: Ang kinuha ko po ay isang television, pero hindi ko po alam kung

ano ang mga kinuha ni GERRY. chanroblesvirtualawlibrary chanrobles virtual law library

10. t: Mayroon akong ipapakita sa iyong isang television, ano ang

masasabi mo tungkol dito (declarant at this juncture this prober
pointing a colored Television set marked Sharp in the course of
investigation). chanroblesvirtualawlibrary chanrobles virtual law library

s: Iyan po ang television na aking ninakaw sa bahay nina Capt.

Borja (at this juncture suspect/declarant was pointing to a colored
TV Sharp placed on top of the investigating room in the course of
investigation). chanroblesvirtualawlibrary chanrobles virtual law library
11. t: G. Baello, nais kong ipa-alam sa iyo na sa bahay na iyong
pinag-nakawan ay mayroon napatay na si Veronica Borja na anak
na babae nuong may-ari ng bahay, alam mo ba kung sino ang
pumatay dito? chanrobles virtual law library

s: Opo, si GERRY po na aking kasama nang magnakaw kami. chanroblesvirtualawlibrary chanrobles virtual law library

12. t: Papaano mo naman nasiguro na itong si Gerry ang pumatay

kay Veronia? chanrobles virtual law library

s: Dahil po siya lamang ang naiwan sa itaas ng bahay. chanroblesvirtualawlibrary chanrobles virtual law library

13. t: Nasaan ba naman itong Veronica Borja ng pasukin ninyo ang

bahay nina Bgy. Capt. Borja? chanrobles virtual law library

s: Siya po ay nakiya (sic) ko sa isang kuwarto sa itaas ng bahay.

library
chanroblesvirtualawlibrary chanrobles virtual law

14. t: Papaano ba naman pinatay ni Berry (sic) si Veronica Borja

kung nalalaman mo? chanrobles virtual law library

s: Hindi ko po nakita dahil sa nauna akong umalis sa kanya. chanroblesvirtualawlibrary chanrobles virtual law library

15. t: Bukod sa inyong dalawa ni Gerry, mayroon pa bang ibang

taong pumasok sa bahay nina Bgy. Capt. Borja? chanrobles virtual law library

s: Wala na po, kaming dalawa lamang. chanroblesvirtualawlibrary chanrobles virtual law library

16. t: Nalaman mo ba kung saan ma-aaring matagpuan itong si

Gerry? chanrobles virtual law library

s: Sa Nueva Ecija po, pero hindi ko alam kung saang lugar duon.
library
chanroblesvirtualawlibrary chanrobles virtual law

17. t: Wala na muna akong itatanong sa iyo may nais ka pa bang

idadagdag O babawasin sa iyong salaysay? chanrobles virtual law library

s: Wala na po muna. chanroblesvirtualawlibrary chanrobles virtual law library

18. t: Ikaw ba ay tinakot, sinaktan, binayaran O' pinangakuan

upang magbigay ng iyong salaysay dito? chanrobles virtual law library

s: Hindi po, kusang loob ko po ito lahat.

(Sgd.) John Baello

19. t: Handa mo bang panumpaan at lagdaan ang iyong salaysay

bilang patotoo sa lahat ng iyong mga sinasabi dito? chanrobles virtual law library

s: Opo.

wakas ng Salaysay ni

15 Oktubre 1990
Pasig, Metro-Manila

Pinabasa, pinuu-unawa (Sgd.)

at pinirmahan John Amet Baello
ni (Sgd.) Atty. Eber Generoso

On the other hand, the defense presented only two witnesses, viz.:

the accused, testifying  pro se, and his mother, Anita Baello. chanroblesvirtualawlibrary chanrobles virtual law library

The version of the accused is as follows: chanrobles virtual law library

He was born in Leganes, Iloilo but resides with his mother at No.
145 Evangilista Street, Santolan, Pasig, Metro Manila. He only
reached the fourth grade of elementary school. He was at the house
of his cousin after having watched a movie when the police came.
They handcuffed him and then brought him to the Pasig Police
Headquarters. He was immediately detained and not subjected to
any investigation. Afterwards, he was mauled inside the jail by
Antonio Gabriel, the nephew of Capt. Borja, and two of Gabriel's
companions. These persons beat him up by kicking and punching
his stomach and back, and striking his back and buttocks with a
"baston." He was unable to recall the day when his statement was
taken down, though he remembers it was in the afternoon. On that
particular afternoon, he was taken downstairs and told that he
would be given a lawyer to assist and defend him. However, Atty.
Generosa, the lawyer assigned to him, simply sat down and stared
at him without doing anything. Atty. Generoso told him that he
would be going somewhere and then left for about an hour. When
Atty. Generoso came back, the statement was already typewritten
and Atty. Generoso merely signed it after which the accused was
asked to sign, which he did as he was promised that he would be
released after signing.
chanroblesvirtualawlibrary chanrobles virtual law library

While he was downstairs, a policeman asked him carry a television

set. At first, the accused refused to do so, but then the policeman
shouted at him. Since he got scared, he carried the television set.
His picture was then and presented as Exhibit "0-6" by the
prosecution. All the time downstairs, the police only asked for his
name, age, civil status and nothing more. chanroblesvirtualawlibrary chanrobles virtual law library

Anita Baello testified thus: When she visited her son, the accused,
in jail a week after his arrest, she saw contusions on his body; he
complained to her of chest pains because of the beatings he had
received. She visited her son every other day and when she visited
him sometime in the first week of January 1991, he told her that he
could not bear anymore the beatings he received from Antonio
Gabriel. Their lawyer then wrote a letter to the jail warden and after
that, her son was not hurt anymore. When she visited him later, she
was surprised to see Gabriel in the same cell with her son; the latter
told her he was not able to sleep for three nights because he was
being pricked with a needle, so she complained to the police after
which her son was separated from Gabriel. 21 chanrobles virtual law library

In his brief, 22 the accused submits the following assignment of

errors:

THE LOWER COURT ERRED IN HOLDING THAT ACCUSED-

APPELLANT WAS FULLY AND DULLY ASSISTED BY A COUNSEL
ENGAGED BY HIM AND IN FURTHER [sic] HOLDING THAT HIS
EXTRA-JUDICIAL CONFESSION DURING CUSTODIAL
INVESTIGATION IS ADMISSIBLE IN EVIDENCE.

THE LOWER COURT ERRED IN FINDING THAT CONSPIRACY EXIST

IN THE COMMISSION OF THE CRIME.

3
THE LOWER COURT ERRED IN GIVING FULL CREDENCE TO THE
TESTIMONIES OF THE PROSECUTION NAMELY, EUGENIO TAGIFA
AND PRUDENCIO BAGASINA FOR IN TRUTH AND IN FACT THESE
WERE INCONSISTENT, HIGHLY IMPROBABLE AND EXAGGERATED.

THE LOWER COURT ERRED IN HOLDING ACCUSED-APPELLANT

GUILTY AND CONVICTING HIM OF THE CRIME CHARGE [sic]
CONSIDERING THAT HIS GUILT WAS NOT ESTABLISHED BEYOND
REASONABLE DOUBT

In his first assigned error, the accused maintains that he was not
"fully and duly assisted by a counsel engaged by him." Hence, his
extra-judicial confession is constitutionally infirm and inadmissible in
evidence.chanroblesvirtualawlibrary chanrobles virtual law library

The records of the case, however, clearly belie this allegation of the
accused. While it is true that Atty. Generoso was not initially his
counsel of choice, the fact remains that after the accused was asked
if he could afford the services of counsel and he answered in the
negative, he was informed that he would be provided with one -
Atty. Generoso of the PAO - to assist him during the investigation.
He then voluntarily accepted the services of Atty. Generoso. This
was in compliance with paragraph (1), Section 12, Article III of the
Constitution which provides that:

Any person under investigation for the commission of an offense

shall have the right to be informed of his right to remain silent and
to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must
be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.

Apropos  is the case of People vs. Parojinog. 23Parojinog was

arrested for triple murder. Before the start of the investigation, the
police apprised Parojinog of his constitutional right to counsel of his
own choice and told him that if did not have one, a certain Atty.
Fernando Fuentes III of the Citizens Legal Assistance Office (CLAO)
would be engaged to assist him. He agreed to have Atty. Fuentes as
his lawyer. Atty. Fuentes assisted Parojinog during the entire
investigation after which Parojinog signed his extra-judicial
confession. Atty. Fuentes also signed the document. Later on,
Parojinog assailed the confession, contending that Atty. Fuentes was
not his counsel of choice. This Court refuted him thus:

Anent his claim that Atty. Fuentes was not his choice, Section 12(1)
of Article III of the 1987 Constitution provides:

Sec. 12(1). - Any person under investigation for the commission of

an offenses shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel
he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

It is very clear from the aforequoted provision that a person under

investigation for the commission of an offense may choose his own
counsel but if he cannot afford the services of counsel, he must be
provided with one. While the initial choice of the lawyer in the latter
case is naturally lodged in the police investigators, the accused
really has the final choice as he may reject the counsel chosen for
him and ask for another one. In the instant case, the records show
that no objection was voiced by the accused throughout the entire
proceedings of the investigation and afterwards when he subscribed
to its veracity before City Prosecutor Luzminda V. Uy. Thus, he
apparently acquiesced to the choice of the investigators. He
complained for the first time that Atty. Fuentes was not his choice
only during the trial. Thus, it was too late.

Likewise, in the People vs. Masongsong, 24 we dismissed similar

plaint in the wise:

To accept the appellant's contention that he was in effect denied

justice since the counsel assigned to him was not really his choice is
ridiculous. As correctly stated by the Solicitor General, every lawyer
is presumed to have knowledge of the law as well as the training in
procedure sufficient to enable him to protect his client. Furthermore,
the accused was given sufficient time to choose his own counsel had
he opted to so. His failure, therefore, to request for another counsel
negates his claim of denial of the right to choose his lawyer.

And in People vs. Pinzon, 25this Court made the following

disquisition:

There is no merit in the above argument. We agree with the

Solicitor General's view that:

. . . the entire process of custodial investigation was conducted in

the manner required by the Constitution. Atty. Saldivar informed
appellant of the latter's right to remain silent, as anything he says
in said investigation could be used against him. Appellant was
likewise informed of his right to counsel and that if he could not
afford to pay [for] the services of one, he could avail of the free
legal services of the CLAO, which offer appellant accepted. By said
acceptance, Atty. Saldivar became appellant's counsel of choice,
and the fact that appellant had no previous acquintance with Atty.
Saldivar did not render null and void appellant's otherwise valid
extra-judicial confession. Atty. Saldivar was present from the time
appellant's statements were taken up to the time appellant affixed
his signature thereon. In fact, Atty. Saldivar's signature appears on
the statement. Plainly, the admission in evidence of appellant's
sworn statement does not suffer from any constitutional infirmity.

Exhibit "L" completely belies the allegation that the accused was not
fully assisted by Atty. Generoso during the investigation. Said
document discloses that the accused was informed of his
constitutional rights by Atty. Generoso  in extenso. Atty. Generoso
conferred with the accused, warned the latter of the consequences
of his confession and even advised him not to make any; however,
the accused insisted on going ahead with his confession, although
he only confessed to the robbery. chanroblesvirtualawlibrary chanrobles virtual law library

It was only after the said conference that the accused gave a
statement. After it was completed, Atty. Generoso again explained
to him the contents and the adverse effects of his confession, but
the accused found himself at ease with his conscience by voluntarily
affixing his signature therein. If, indeed, he had any objections to
his statement, he should not have signed Exhibit "L," or he should
have at least voiced out such objections to Atty. Generoso. Atty.
Generoso, as an officer of the PAO, would not have affixed his
signature in the extra-judicial confession as counsel for the accused
had he known of any infirmity in its execution. 26If he did so, he
would have been remiss in the performance of his duty and
unfaithful to his office. But there must be convincing proof of that
for he has in his favor the presumption of regularity in the
performance of his duty. chanroblesvirtualawlibrary chanrobles virtual law library

The accused likewise assails what he perceives to be "a

preconditioned (sic) of the mind on the part of the investigator as
well as the counsel that an admission was about to take place and
for that the accused must be assisted only in this aspect." 27 He then
labors under a misconception. In People vs. Layuso, stated:

This Court denounces in the strongest terms possible the

widespread misconception that the presence of a lawyer under the
"right to counsel" provision of the Constitution is intended to stop
an accused from saying anything which might incriminate him. The
right to counsel is intended to prelude the slightest coercion as
would lead the accused to admit something false. The lawyer,
however, should never prevent an accused from freely and
voluntarily telling the truth. Whether it is an extra-judicial
statement or testimony in open court, the purpose is always the
ascertainment of truth.

The accused jointly discusses the remaining assigned errors. He

contends that there was no evidence of conspiracy with respect to
the crime of robbery with homicide, and faults the trial court for
giving full credence to the testimonies of prosecution witness
Eugenio Tagifa (his brother-in-law) and Prudencio Bagasina. He
alleges that Eugenio Tagifa testified against him because the former
was threatened with arrest and
prosecution. 29The accused likewise impugns the testimony of
Prudencio Bagasina as "inconsistent, highly improbable and
exaggerated." chanrobles virtual law library

These contentions are as hollow as those offered to support the first

assignment of error. chanroblesvirtualawlibrary chanrobles virtual law library
Anent his claim of lack of evidence of conspiracy for the crime of
robbery with homicide, the accused has absolutely nothing but
vague conclusions in between which he fears to openly express, that
since he confessed only to robbery and that since it was only Jerry,
his companion, who killed Veronica Borja, he could only be held
liable for robbery but not for robbery with homicide. Indeed, the
accused deliberately and carefully confined his participation to the
robbery, and the prosecution had no direct evidence that the
accused took part in the killing of Veronica. But the accused is not
thereby absolved from any liability for her death. Once conspiracy is
established between the accused Jerry in the commission of the
crime of robbery, the accused would be equally culpable for the
homicide committed by Jerry on the occasion of the robbery, unless
the former proved that he endeavored to prevent Jerry from
committing homicide. In People vs. de la Cruz, 30we said: "The rule
is likewise settled that when homicide takes place as a consequence
or on the occasion of a robbery, all those who took part in the
robbery are guilty as principals of the crime of robbery with
homicide unless proof is presented that the accused tried to prevent
the killing." Accused offered no such proof. chanroblesvirtualawlibrary chanrobles virtual law library

The conspiracy to commit the crime of robbery was sufficiently and

convincingly established in this case. As admitted by the accused in
his sworn statement, he and Jerry had a prior agreement to commit
robbery in the house of Eustaquio Borja. Together they went to the
latter's house at 4:00 o'clock in the morning of 10 October 1990,
entered the house through the window at the second floor, and once
inside, he got the television set while Jerry got the other items, and
then, together again, they left the house with their loot. These acts
taken as a whole are more than sufficient to establish a common
design between Jerry and the accused to commit robbery; such acts
eloquently showed nothing less than a joint purpose and design,
and a community of interest which established beyond doubt the
existence of a conspiracy. 31It is axiomatic that direct proof is not
essential to prove conspiracy; it may be shown by acts and
circumstances from which may logically be inferred the existence of
a common design 32or may be deduced from the mode and manner
in which the offense is perpetrated. 33
chanrobles virtual law library
Accused's claim that his brother-in-law, Eugenio Tagifa, testified
against him because "he was intimidated with arrest and
prosecution" is purely conjectural. It is to be noted that the accused
does not, in the main, dispute the prosecution's evidence that he
was the one who placed the television set under the stairs of
Tagifa's house and that he was seen carrying it on his shoulders in
the early morning of 10 October 1990. All that the accused could do
was to raise a feeble and unsubstantiated denial. chanroblesvirtualawlibrary chanrobles virtual law library

On the witness stand, Tagifa identified the sworn statement he

executed on 11 October 1990 (Exhibit "A") and openly admitted
that it was the accused who brought the television set, thus:

Q Who brought the TV set under your stairs if you were not the
one? chanrobles virtual law library

A My brother in law, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Could you identify him, Mr. witness? chanrobles virtual law library

A Yes, sir. chanroblesvirtualawlibrary chanrobles virtual law library

Q Will you point him now? chanrobles virtual law library

A Yes, sir. (witness pointing to a person who identified himself as

John Amet Baello, the accused in this case). 34

The due execution of Tagifa's sworn statement was not put in doubt
during his cross-examination by the counsel for the defense. The
impression then that Tagifa leaves us is that he was telling the
truth. The trial court, which was obviously in a better position to
decide the question of his credibility, having heard him and
observed his deportment and manner of testifying, gave full faith
and credit to Tagifa's testimony. We accord it the highest respect,
especially considering that we find no fact or circumstance of value
in the said testimony that it had overlooked or misappreciated and
which if considered, may alter the result. 35 chanrobles virtual law library

Prudencio Bagasina's testimony deserves a separate treatment. He

had the temerity to testify in open court that he was just brought to
the police station and then made to sign a prepared statement,
which was marked as Exhibit "P." He denied having been
investigated at all. In said sworn statement, he declared that in the
early morning of 10 October 1990, he saw the accused along Daang
Kalabaw at Santolan, Pasig, Metro Manila, carrying a television set -
the same television set identified by Tagifa. The trial court
immediately perceived that he was lying through his teeth and held
him in contempt, thus:

COURT:

The witness is hereby cited in contempt for making untruthful

statements until further orders from this Court. Send him to the
provincial jail, for twenty-four hours. Let the hearing be continued
on another date. 36 chanrobles virtual law library

In short, the trial court gave full faith and credit to Bagasina's sworn
statement. We find no compelling reason to disagree with the trial
court.chanroblesvirtualawlibrary chanrobles virtual law library

The aggravating circumstance of unlawful entry 37was properly

appreciated against the accused as he and his companion, Jerry,
had entered the Borja residence through the second-floor window, a
way not intended for ingress. The evidence likewise shows that the
aggravating circumstance of nocturnity 38was present in the
commission of the crime as the darkness was taken advantage of by
the malefactors and such circumstances facilitated their evil
designs. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the judgement of conviction the Regional Trial Court

of Pasig (Branch 156), Metro Manila in Criminal Case No. 84253 is
hereby AFFIRMED in toto. Cost against the accused-appellant. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

G.R. No. L-32078 September 30, 1974

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs. BALTAZAR LACAO and DAVID LACAO, accused, BALTAZAR
LACAO, Accused-Appellant.
Narciso C. Parayno, Jr. for accused-appellant.

Office of the Solicitor General for plaintiff-appellee.

AQUINO, J.:

This is a murder case. In the evening of March 27, 1969, around

one hundred persons foregathered in Francisco Labo's house which
was located at Sitio Guimba, Barrio Manibad, Mambusao, Capiz. The
occasion was the last night of the wake (velasyon) for Labo's
deceased wife. Among those present were Baltazar Lacao (the
barrio captain), his brother David, and Sergio Gallardo. chanroblesvirtualawlibrary chanrobles virtual law library

At about eleven o'clock, Gallardo decided to go home. As he was

descending the stairs, Baltazar Lacao followed him, called him, "Ser,
Ser," and stabbed him with a knife at the right side of his body. chanroblesvirtualawlibrary chanrobles virtual law library

Baltazar tried to pull out the knife. Gallardo ran. Baltazar followed
him. When Gallardo reached the bamboo grove, he was assaulted
by David Lacao (who was armed with a carbine), Benedicto Lacao
(David's son) Salvador Lacao, Jose Mansilla and Federico Lata .
(Salvador and Federico are Baltazar's first cousins). chanroblesvirtualawlibrary chanrobles virtual law library

Gallardo sustained fourteen wounds (Exh. A). His assailants dragged

him "to the field". He died due to massive hemorrhage resulting
from his numerous wounds. The wounds were caused by different
bladed instruments. Each of his nine wounds could have caused his
death if there were no timely medical attendance. chanroblesvirtualawlibrary chanrobles virtual law library

The killing was motivated by resentment. Baltazar Lacao, as barrio

captain, had drafted a resolution, recommending that the name of
Barrio Manibad be changed to Hontiveros. Gallardo vigorously
opposed the change. That opposition was sufficient to provoke
Baltazar to liquidate Gallardo (Exh. 1 and 2; 37 tsn August 21,
1969). chanroblesvirtualawlibrary chanrobles virtual law library

Less than twelve hours after the killing or at five to eleven o'clock in
the morning of the following day, March 28th, Baltazar surrendered
to the Constabulary detachment at Loctugan Hills, Roxas City.
Evidently, he realized that he had to assume responsibility for the
killing so that his relatives would not be implicated. He also feared
reprisals from the victim's family. So, he placed himself under the
protective custody of the Constabulary. chanroblesvirtualawlibrary chanrobles virtual law library

As proof of his surrender and to show that he waived the issuance

of a warrant of arrest or commitment, he executed in the Ilongo
dialect a certification wherein he admitted that he killed Gallardo
(Exh. C). The translation of his statement reads as follows (Exh.
C-2):

To whom it may concern: chanrobles virtual law library

I, Baltazar Lacao y Arro, 33 years old, married, farmer and a

resident of Barrio Manibad, Mambusao, Capiz, on my own free will
hereby depose and say: chanrobles virtual law library

That, I voluntarily surrender with the PC Headquarters, Loctugan

Hills, Roxas City on this day at about 10:55 a.m., March 28, 1969
because I stabbed Sergio Gallardo who is my barriomate and he
died in the evening of March 27, 1969 and because there is no
charge or complaint in the court against me and I am afraid of the
relatives of the deceased if I am in my place, I am asking for the
protection of the PC that I will stay in the PC camp and under the
protection and power of the PC. chanroblesvirtualawlibrary chanrobles virtual law library

Loctugan Hills, Roxas City

March 28, 1969.

Baltazar Lacao
(Surrenderee)

witnesses: 1. Jose Blancaflor.

2. Benedicto Ilagan. chanroblesvirtualawlibrary chanrobles virtual law library

Note: I received a copy of this certification.

Baltazar Lacao

On the basis of that statement, Constabulary Sergeant Jose B.

Blancaflor prepared a spot report which was sent at three o'clock in
the afternoon of March 29th to the Provincial Commander. it was
stated therein that "Baltazar Lacao y Arro, 33 years old, married,
barrio captain of Manibad, surrendered to the Constabulary at five
to eleven o'clock in the morning of March 28th for having stabbed to
death Sergio Gallardo" in the evening of March 27th (Exh. B). chanroblesvirtualawlibrary chanrobles virtual law library

Also on the following day, March .28th, Eulogio Lipura, Caridad

Laurilla and Alfredo Vergabera executed sworn statements
implicating Baltazar Lacao in the killing of Gallardo. On that same
date, a police sergeant filed a complaint for murder against Baltazar
Lacao, David Lacao, Federico Lata and John Doe. chanroblesvirtualawlibrary chanrobles virtual law library

On April 2, 1969 Lipura, Vergabera and Laurilla reiterated their

statements at the preliminary examination conducted by the
municipal judge. Later, the complaint was amended by excluding
Lata and John Doe. Only the Lacao brothers were charged with
murder. They waived the second stage of the preliminary
investigation. The case was elevated to the Court of First Instance.
It was transferred to the Circuit Criminal Court at Roxas City where
on April 25, 1969 the Provincial Fiscal filed an information for
murder against the Lacao brothers. Evident premeditation was the
qualifying circumstance that was alleged. chanroblesvirtualawlibrary chanrobles virtual law library

After trial, the lower court convicted Baltazar Lacao of murder,

qualified by treachery, sentenced him to reclusion perpetua and
ordered him to pay the heirs of Sergio Gallardo the sum of thirty
thousand as indemnity and moral and exemplary damages. David
Lacao was acquitted on the ground of reasonable doubt. (Criminal
Case No. CCC-Xl-83-Capiz). chanroblesvirtualawlibrary chanrobles virtual law library

Baltazar Lacao contends in this appeal that the trial court's decision
is contrary to law and the evidence and that his guilt was not
proven beyond reasonable doubt. He argues that his plea of self-
defense should be upheld. His complicated story is as follows: chanrobles virtual law library

He arrived at Francisco Labo's house at eight-thirty in the evening

of March 27th. Sergio Gallardo and other persons were in the yard
discussing political matters. He advised them to desist from talking
about politics because the elections were still far away and their
discussions might lead to quarrels. chanroblesvirtualawlibrary chanrobles virtual law library
Later, Arturo Labo allegedly reported to him that Gallardo was
chasing several persons. Lacao went down to pacify Gallardo who
was armed with a knife. Lacao announced to Gallardo: "Ser, Ser,
this is the barrio captain. Give me your knife." Instead of
surrendering his knife, Gallardo tried to stab Lacao who moved
backward and retreated. Gallardo followed Lacao. When in the
course of his retreat Lacao reached the bamboo grove, Gallardo
again tried to stab him. Lacao parried the blow. chanroblesvirtualawlibrary chanrobles virtual law library

As Gallardo persisted in his aggression, Lacao grappled with him. In

the course of the scuffle, Lacao wrested away the knife held by
Gallardo. Then, Gallardo tried to get back the knife, squeezed
Lacaos neck with his right hand and held Lacaos right hand with his
left hand. chanroblesvirtualawlibrary chanrobles virtual law library

The knife fell from Lacaos hand. He was able to free himself from
Gallardo's stranglehold. Lacao fled. He was pursued by Gallardo who
was armed with the knife. Lacao ran faster when he saw that seven
persons, whom he surmised were Gallardo's companions, were also
chasing him. Lacao said that Gallardo might have been wounded in
the right breast and on the hand and fingers (pp. 7-8, Appellant's
Brief).
chanroblesvirtualawlibrary chanrobles virtual law library

On analyzing Lacaos testimony, the trial court found it to be riddled

with improbabilities. Considering that many persons were present
when Gallardo allegedly assaulted Lacao, it was incredible that they
would not have intervened to prevent Gallardo from killing Lacao,
their barrio captain. Moreover, as noted by the trial court, Lacaos
credibility was gravely impaired by his denial of the undeniable: that
fact that he voluntarily surrendered to the Constabulary on the
morning following the night of the killing (Exh. C, C-2). chanroblesvirtualawlibrary chanrobles virtual law library

Appellant Lacao contends that the trial court erred in believing the
testimony of William Artuz a prosecution eyewitness, Artuz declared
that Gallardo was stabbed by Baltazar Lacao, David Lacao, Salvador
Lacao, Benedicto Lacao, Jose Mansilla and Federico Lata (6-8 tsn
August 22, 1969). Appellant points out that, according to Alfredo
Vergabera, another prosecution eyewitness, Baltazar Lacao initially
wounded Gallardo with a knife on the right side of his body and that
the knife got stuck in the wound and Baltazar was not able to pull
out the knife (18-19 tsn August 21, 1969). chanroblesvirtualawlibrary chanrobles virtual law library

Since, according to the prosecution, Baltazar Lacao stabbed

Gallardo only once, appellant Lacao argues that the trial court erred
in concluding that he was responsible for the fourteen wounds
sustained by Gallardo. That contention is fallacious. It ignores the
testimony of the prosecution witnesses that Lacao pursued Gallardo
when he ran in order to escape from Lacaos felonious assault. chanroblesvirtualawlibrary chanrobles virtual law library

The medical certificate shows that among the fourteen wounds

there were only two wounds on the right side of Gallardo's body,
namely, the stab wound, two and one-half inches long in the right
epigastric region which eviscerated the small intestines and
omentum (No. 2) and a stab wound, one and one-fourth inches long
which penetrated the thoracic cavity above the right nipple (No. 4 in
Exh. A).chanroblesvirtualawlibrary chanrobles virtual law library

Whichever of those two wounds on the right side was inflicted by

Baltazar Lacao would be fatal because both injured the vital organs
and caused much hemorrhage. Hence, assuming, as contended by
the appellant, that he inflicted only one wound, that wound in itself
was sufficient to hold him responsible for Gallardo's death. The fact
is that, as already noted, Lacao probably inflicted other wounds. chanroblesvirtualawlibrary chanrobles virtual law library

Appellant Lacao assails the probative value of his written

acknowledgement that he surrendered so that he would be under
the protective custody of the Constabulary (Exh. C). His counsel de
oficio rightly categorizes that statement as "an admission and
confession of the commission of an offense". Lacao also impugns
the veracity of the testimony of Sergeant Blancaflor who typed that
statement. chanroblesvirtualawlibrary chanrobles virtual law library

We have weighed carefully the probative value of Lacaos statement

(Exh. C) and the spot report (Exh. B), which was based on it, as
well as Blancaflor's testimony. We are satisfied that Lacao signed
Exhibit C voluntarily and understood its contents. The salutary rule
is that "the admissions of a party charged with a crime, deliberately
made, are always admissible to show his guilt" (People vs. Hernane,
75 Phil. 554, 558). chanroblesvirtualawlibrary chanrobles virtual law library
There was no ulterior motive for Blancaflor to fabricate a statement,
like Exhibit C, just to prejudice Lacao. There was no reason why, as
a Constabulary officer, he would make a false spot report regarding
Gallardo's killing. Exhibits B and C were executed in the course of
Blancaflor's regular performance of his official duties. Blancaflor had
to require Lacao to state in writing that he wanted to be detained in
the Constabulary camp; otherwise, the Constabulary men would be
guilty of arbitrary or illegal detention. It was standard operating
procedure to apprise the Provincial Commander that a killing had
been perpetrated and that the perpetrator thereof was under
protective custody in a Constabulary camp. chanroblesvirtualawlibrary chanrobles virtual law library

Appellant Lacao contends that he should be held liable for physical

injuries only because the prosecution failed to prove which of the
fourteen wounds were inflicted by him. He cites the doctor's
testimony that the fourteen wounds were caused by different
weapons or bladed instruments. That contention is not well-
taken.chanroblesvirtualawlibrary chanrobles virtual law library

Lacao was the initiator of the assault. He had the motive for getting
rid of Gallardo who spearheaded the opposition against Lacaos
proposal that the name Manibad should be changed to Hontiveros.
He was armed with a deadly weapon when he stabbed Gallardo. His
intent to kill was manifest. His admission (Exh. C) removes any
doubt as to his guilt. chanroblesvirtualawlibrary chanrobles virtual law library

As stated earlier, the information charged the Lacao brothers with

murder qualified by evident premeditation. The prosecution failed to
prove  premeditacion conocida. It is true that appellant Lacao might
have nursed a grudge or resentment against Gallardo for having
blocked Lacaos proposal to change the name of Barrio Manibad to
Hontiveros. That circumstance is not a conclusive proof of evident
premeditation. chanroblesvirtualawlibrary chanrobles virtual law library

It is not sufficient to suspect that premeditation preceded the crime.

The criminal intent evidenced by outward acts must be notorious
and manifest, and the purpose and determination must be plain and
have been adopted after mature consideration on the part of the
persons who conceived and resolved upon the perpetration of the
crime, as a result of deliberation, meditation, and reflection
sometime before its commission (U.S. vs. Banagale, 24 Phil. 69, 73;
People vs. Mendova, 100 Phil. 811). chanroblesvirtualawlibrary chanrobles virtual law library

The trial court held that the killing was murder because there was
treachery (alevosia) when Lacao, after calling Gallardo,
unexpectedly and suddenly stabbed him. We agree with that
conclusion. Lacao adopted a mode of execution which insured the
wounding of Gallardo without giving him a chance to repel the initial
aggression. There was no risk to Lacao arising from any defense
which Gallardo could have made. He was unarmed (See U.S. vs.
Cornejo, 28 Phil. 457; People vs. Noble, 77 Phil. 93). Gallardo was
not able to make any defense at all. He ran in order to avoid further
injury but Lacao pursued him and the other assailants pounced on
him. chanroblesvirtualawlibrary chanrobles virtual law library

Since treachery was not expressly alleged in the information, it

could not be used to qualify the killing as murder. It should be
treated as a generic aggravating circumstance (U.S. vs. Campo, 23
Phil. 368; People vs. Borbano, 76 Phil. 702). Hence, Lacao can only
be held guilty of homicide, aggravated by treachery. Thus, in People
vs. Peje, 99 Phil. 1052, the accused was charged with murder
qualified by evident premeditation and alevosia. Those two
qualifying circumstances were not proven. Abuse of superiority was
proven. However, since it was not alleged in the information, it
could be considered only as generic aggravating and not qualifying.
The accused was convicted only of homicide. See People vs.
Navarro, L-20860, November 28, 1964, 12 SCRA 530. chanroblesvirtualawlibrary chanrobles virtual law library

Treachery as a generic aggravating circumstance is offset by the

mitigating circumstance of voluntary surrender to the authorities. As
already noted, Lacao denied that he surrendered to Sergeant
Blancaflor. He repudiated the instrument of surrender (Exh. C),
because (from his viewpoint) he found that it was incompatible with
his plea of self-defense which, however, appears to be fabricated.
virtual law library
chanroblesvirtualawlibrary chanrobles

In fairness to him and as the record is conclusive that he was not

arrested and that he was turned over to the Municipal jail by the
Constabulary (See back of p. 31, record) he should be given of the
benefit of the mitigating circumstance of voluntary surrender to
authorities. chanroblesvirtualawlibrary chanrobles virtual law library
The trial court held that cruelty should be appreciated against Lacao
because he inflicted fourteen wounds. That ruling is not supported
by the evidence. The testimonies of the prosecution eyewitnesses
tend to show that several persons inflicted the fourteen wounds.
The nature of the wounds indicates that they could not have been
caused solely by one person using only a knife, which was the
weapon used by Baltazar Lacao. chanroblesvirtualawlibrary chanrobles virtual law library

Moreover, as observed by the Solicitor General, who disagreed with

the trial court, the numerousness of the wounds is not the criterion
for appreciating cruelty (ensañamiento). The test is whether the
accused deliberately and sadistically augmented the wrong by
causing another wrong not necessary for its commission or
inhumanly increased the victim's suffering or outraged or scoffed at
his person or corpse (Arts. 14[21] and 248[6], Revised Penal Code,
People vs. Aguinaldo, 55 Phil. 610; People vs. Dayug and Bannaisan
49 Phil. 423, 427; People vs. Manzano L-33463, July 31, 1974). chanroblesvirtualawlibrary chanrobles virtual law library

It results that reclusion temporal, the penalty for homicide, should

be imposed on Lacao in its medium period (Arts. 64[4] and 249,
Revised Penal Code). chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the trial court's judgment is modified. Appellant

Baltazar Lacao is found guilty of homicide and sentenced to an
indeterminate penalty of twelve (12) years of prison mayor as
minimum, to seventeen (17) years of reclusion temporal medium,
as maximum. In other respects, the trial court's judgment is
affirmed.chanroblesvirtualawlibrary chanrobles virtual law library

So ordered.

G.R. No. 94308 June 16, 1994

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RUBEN E.

ILAOA and ROGELIO E. ILAOA, Accused-Appellants.

The Solicitor General for plaintiff- appellee. chanrobles virtual law library

Buen Zamar for accused- appellants.

 BELLOSILLO, J.:

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 identified through
his voter�s identification 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. chanroblesvirtualawlibrary chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

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." 1The conviction was based on the following
circumstantial evidence:

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. 3Nestor was then seen
being kicked and mauled by Ruben and his brother Rodel, Julius
Eliginio and Edwin Tapang. 4Nestor was crying all the while, "Pare,
aray, aray!" Afterwards, Nestor, who appeared drunk, was seen
being "dragged" 5into 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 floor. 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. 7Moreover, Ruben�s hair
near his right forehead was found partly burned and his shoes were
splattered with blood. 8Susan 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 chanrobles virtual law library

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. Specifically, they assail the finding of
evident premeditation, abuse of superior strength and cruelty as
totally unwarranted. chanroblesvirtualawlibrary chanrobles virtual law library

We affirm Ruben Ilaoa�s guilt having been satisfactorily established

by the evidence on hand, albeit circumstantial. However, we reverse
the conviction of Rogelio as we find it patently baseless. chanroblesvirtualawlibrary chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

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. 10In 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 testified that Rogelio Ilaoa
helped his brother drag the deceased to his apartment, Eustancia
Bie who claimed to have witnessed the same incident positively
testified that it was Ruben Ilaoa and Julius Eliginio who did
so. 11Rogelio 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. chanroblesvirtualawlibrary chanrobles virtual law library

Ruben�s case, however, is a totally different matter. Unlike that of

his brother, Ruben Ilaoa�s fate was most definitely 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. chanroblesvirtualawlibrary chanrobles virtual law library

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 n�yo 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. 12Then, an hour later, or at
three o�clock in the morning, the tricycle was returned with
bloodstains on the floor. chanroblesvirtualawlibrary chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

We find 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, sufficiently 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, 13and that friendship or even relationship is
no deterrent to the commission of a crime. 14 chanrobles virtual law library

If we are to believe appellant Ruben, we will not be able to account

for the blood found on the floor of the tricycle after it was brought
back to the owner. Ruben himself could 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. 15In fact he could
think of no reason for Alex Villamil to testify falsely against him. 16 chanrobles virtual law library

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 sufficiently
proved to be appreciated against appellant. chanroblesvirtualawlibrary chanrobles virtual law library

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. 17The fact that Nestor de Loyola�s
decapitated body bearing forty-three (43) stab wounds, twenty-four
(24) of which were fatal, 18was found dumped in the street is not
sufficient for a finding 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 inflicted on him
unnecessary physical and moral pain. 19Number of wounds alone is
not the criterion for the appreciation of cruelty as an aggravating
circumstance. 20Neither can it be inferred from the mere fact that
the victim�s dead body was dismembered. 21Evident 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. chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

In line with present jurisprudence, the civil indemnity fixed by the

court a quo for the death of Nestor de Loyola is increased from
P30,000.00 to P50,000.00. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the judgment finding 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 fixed 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. chanroblesvirtualawlibrary chanrobles virtual law library

Accused-appellant ROGELIO E. ILAOA, however, is ACQUITTED of

the crime charged for obvious insufficiency of evidence. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

G.R. No. 139693 : January 24, 2002

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

Catian, Samuel Sumalpong and Rogelio Calunod, Accused-
Appellants.

DECISION

BELLOSILLO, J.:

FREDDIE CATIAN, SAMUEL SUMALPONG AND ROGELIO

CALUNODwere convicted of murder by the trial court[1 for the
violent death of one Willy Ondo for which they were each sentenced
to reclusion perpetua and to jointly indemnify the heirs of the
victim P50,000.00 as death indemnity, P50,000.00 as actual
damages and to pay the costs of suit.

Acting on an earlier report that Willy Ondo was missing since 27

December 1996 and was already believed to be dead, Barangay
Captain Admir Sabado[2 sounded the alarm on his tanods on 2
January 1997 and called them to search for Willy. Their efforts
would have been futile had it not been for the chance discovery on 7
January 1997 of Willy's skeletal remains by a child who was
pasturing his cow near a peanut plantation in Barangay Poo, Lazi,
Siquijor. Upon hearing the information, Barangay Captain Sabado
immediately notified the police and went to the site where the
cadaver was found. With a throng of onlookers, Sabado saw the
disjoined bones of Willy scattered around. Sabado also noticed
marks of a recent bonfire near the vicinity. Those who knew the
victim, particularly his uncle Feliciano Duque, recognized the
remains as those of Willy because of a stainless steel found on his
leg which was surgically inserted to support a fractured leg as a
result of an accident.

Dr. Franco Arcamo, the Medical Officer of Lazi, examined the

skeletal remains of Willy Ondo and confirmed that there was no
noticeable decomposition as the body had probably been feasted on
by animals roaming the area. Dr. Arcamo also found no traces of
bloodstains in the remains; consequently, he surmised that the
victim could have been dead five (5) to seven (7) days earlier as
the bones were already dried up with no foul odor. In his expert
opinion, the principal cause of death was asphyxia secondary to
burning.[3
cräläwvirtualibräry

Jeofrey Abe[4 narrated that on 27 December 1996 at 9:00 o'clock in

the evening he went out of his house to watch a television show at
the residence of a certain Anselmo Ymbol. A couple of hours later or
at about 11:00 o'clock that evening Jeofrey returned home
traversing the same route he took earlier. On the way home, he
chanced upon a group of three (3) persons whom he readily
recognized as Freddie Catian, Samuel Sumalpong and Rogelio
Calunod. The three (3) were "ganging up" on a man whom he also
identified as Willy Ondo. Jeofrey easily recognized them as they
were all his barriomates and the road was not that dark despite the
lateness of the hour because it was a moonlit night.

From a distance of about twelve (12) meters, Jeofrey saw Catian

repeatedly striking Willy with a "chako"[5 on the head, causing Willy
to fall on his knees. Calunod seconded by striking the victim with a
piece of wood on the face. When Willy finally collapsed, Sumalpong
picked him up, carried him over his shoulder, and walked away
carrying him to an undisclosed destination. Overcome with fear,
Jeofrey went running towards home.

Jeofrey admitted that he did not inform anybody about the startling
occurrence that he witnessed for fear that the news would spread
around and the assailants would hunt him down. In fact, he did not
dare divulge anything to the police or to his relatives even when he
knew that the barangay tanods  were looking for the victim.
Actually, according to him, he was waiting for a more opportune
time to tell the family of the deceased, which opportunity came
when the victim's sister Myrna Ondo and her husband arrived from
Iligan to attend the wake of their departed kin. At the wake, Jeofrey
intimated to Myrna that he had something to tell her but would do
so only at the police station because Sumalpong, one of the
accused, kept on following him. Jeofrey waited until Sumalpong had
gone home before he and Myrna went to the Lazi police station to
execute an affidavit. That affidavit which was dated 10 January
1997 contained an eyewitness account of the dreadful event of 27
December 1996.

Teodosia Daque also testified that on 3 January 1997 she and some
companions were walking back to Barangay Poo after attending a
town fiesta in Capalasanan when they saw by the wayside a dirty
blood-stained white t-shirt which they recognized to be that of
Samuel Sumalpong. The particular t-shirt was familiar to her
because on many occasions she had seen Sumalpong wearing the
same t-shirt everytime the latter would gather tuba in his coconut
plantation.

Marlito Patadlas, testifying also for the prosecution, recalled that

before 27 December 1996, or specifically on 18 December 1996,
while he and his friends were playing billiards, Rogelio Calunod
barged into the room. He was bleeding on the face. When asked
what happened to him, Rogelio replied that he had a spat with Willy
Ondo who hit him on the face with a piece of stone.

On the other hand, accused-appellant Freddie Catian vigorously

denied the charges against him, explaining that on the day that the
incident allegedly took place he was working as a laborer on a
project at the Capalasanan public market. When his work ended
at 5:00 o'clock in the afternoon of that day, he immediately
proceeded home. At around 8:00 oclock in the evening, after some
household chores, he retired for the evening. Freddie denied having
met his co-accused Samuel Sumalpong and Rogelio Calunod on 27
December 1996, much less had he been informed by the accused
Calunod of his quarrel with Willy Ondo. In his account, Freddie
stated that he learned about the death of Willy only on 10 January
1997 when he was arrested by the police. Freddie further testified
that although he and his two (2) co-accused were blood relatives
they were not particularly close because it was not his habit to visit
them in their place. He opined that perhaps the reason why Jeofrey
implicated him in the murder was because Jeofrey being an
inveterate gambler, was bribed into accusing anybody and he being
from Capalasanan was a most convenient fall guy.[6 cräläwvirtualibräry

On his part, accused Samuel Sumalpong[7 testified that at 7:00

o'clock in the morning of 27 December 1996 he was
gathering tuba  when Jeofrey Abe, Willy Ondo and two (2) others
went to his place to buy tuba. After giving them five (5) gallons of
the beverage, he went to the farm of a certain Angot to plant rice,
afterwhich, he went back home to gather some more tuba. He went
home at about 6:30 in the evening and took his supper half an hour
later. He spent the night in his house with his wife and children and
never left until dawn of the following day to gather tuba.  He also
denied having met his co-accused on 27 December 1996 but
remembered having had an encounter with them during the town
fiesta of Barangay Poo on 17 November 1996. Unlike Catian, he
heard about the death of Willy Ondo on 3 January 1997. He
disowned the bloodied t-shirt which was identified to be his by
Teodosia Daque who claimed to have found it on the road.

In his defense, accused Rogelio Calunod vigorously insisted that he

was working in his farm from morning until 6:00 o'clock in the
evening of 27 December 1996. According to him, after finishing his
work in the farm he returned home and never left his house until
the following morning. Like his other co-accused, he also disavowed
having seen them nor talked to them on 27 December 1996. He
admitted that Willy Ondo boxed him on 17 November 1996 which
prompted him to report the matter to the Barangay Captain.
Despite what the victim did to him, it never crossed his mind to take
revenge, much less kill Willy.[8
cräläwvirtualibräry
The defense also presented Merlyn Sumalpong,[9 wife of accused
Samuel Sumalpong, and Lily Calunod,[10 sister of accused Rogelio
Calunod, whose testimonies corroborated the claim of their accused
kin that on the day of the supposed killing of Willy Ondo they were
at home with their respective families and never left their houses
until the following morning.

The trial court gave full credit to the testimony of prosecution

witness Jeofrey Abe, characterizing his testimony as credible,
unwavering, categorical and straightforward. As to the alleged
inconsistencies in his testimony, the trial court opined that they
were inconsequential and minor which, far from weakening its
veracity, bolstered and strengthened it instead. The trial court
further emphasized that the defense of alibi interposed by the
accused which, aside from being inadequately corroborated, also
failed miserably to measure up to the required quantum of evidence
considering that the accused were not able to prove that it was
physically impossible for them to be at the scene of the crime at the
time the killing took place.

On the matter of the modifying circumstances, the trial court found

that the killing was attended by treachery, evident premeditation,
cruelty and ignominy, and that there was conspiracy among the
accused. As the trial court explained, there is no doubt that there
was treachery as the three (3) accused ganged up on their quarry
while the latter was helpless and defenseless, obviously resorting to
nighttime to facilitate the commission of the crime and where no
one could come to the rescue of the victim. There was evident
premeditation as the killing was well planned and perpetrated in
such a way that there could be no obstacle or impediment to the
accomplishment of their purpose. The killing was done with cruelty
and ignominy by burning the victim or boiling his remains probably
to erase any trace of their criminal act.

On the angle of conspiracy, which the trial court also found to have
attended the commission of the crime, there was clearly a unity of
purpose when they ganged up on Willy Ondo; consequently, the act
of one is considered the act of all for which they must all be equally
liable.[11
cräläwvirtualibräry
Accused-appellants assail before us the decision of the trial court,
arguing that it erred (a) in finding accused-appellants guilty as
charged despite the weakness of the prosecution evidence,
particularly the testimony of Jeofrey Abe, and (b) in appreciating
the qualifying circumstances of treachery and evident premeditation
as well as cruelty and ignominy.

Accused-appellants contend that the failure of Jeofrey Abe to reveal

to the authorities as soon as possible or to the nearest relatives of
the victim what he (Jeofrey) allegedly saw on the night of 27
December 1996 irreversibly sullied his credibility. They stress that if
indeed Jeofrey saw and knew the assailants, then why did he not
even volunteer to pinpoint to the barangay tanods  the place where
the alleged incident took place. More importantly, according to
accused-appellants, the testimony of the witness that at around
9:00 o'clock on the night of the killing he watched Power
Rangers on television in the house of Anselmo Ymbol was
subsequently belied by the latter who not only doubted Abes
presence in his house but also stated that Power Rangers was
shown at 7:00 o'clock in the evening and not at 9:00 o'clock as
declared by the witness.

Accused-appellants' quibbling over inconsequential matters should

not be countenanced. It is of common knowledge that the initial
reluctance and vacillation of a witness to volunteer information is
more telling of his fear of being embroiled in a criminal investigation
and expose himself and his family to reprisal than an intent to
suppress the truth or muddle an investigation. Delay in reporting
the identity of the perpetrators of a crime does not necessarily
impair the credibility of a witness, especially where such witness
gives a sufficient explanation. For the Court to unreasonably
discredit a witness' account for the reason that it was delayed is to
permanently seal the lips of reluctant and timorous witnesses.
[12 Despite the searing examination by the defense, Abe

satisfactorily explained himself when he said-[13cräläwvirtualibräry

Q: As a matter of fact you keep (sic) the information to yourself,

you did not tell anybody?
A: I did not tell anybody, sir, because the person I might tell the
incident might spread the rumor and they might hear it and they
might escape. They might take revenge on me.

Q: Did you know that after December 27, 1996, the relatives of

Willy Ondo as well as the Barangay Captain of the place were
looking for the body of Willy Ondo?

A: Yes, sir.

Q: As a matter of fact you yourself was one of those who were

looking for the body of Willy Ondo?

A: I did not go with those who were looking for the body of Willy
Ondo, sir. I just keep (sic) myself at home because I was afraid I
was scattered (sic) of what I have seen.

Q: Thats why you did not volunteer to tell the information to the
Barangay Captain or to the relatives of Willy Ondo of what you have
seen?

A: No, sir.

Q: In fact when the body of Willy Ondo was already recovered, you
still did not inform anybody of what you have seen?

A: I did not tell anybody because I waited for the brothers and
sisters of Willy Ondo whom I would tell the incident which I have
seen.

The inanity of accused-appellants' defensive posture becomes more

pronounced with each passing argument. Now they assert that
Jeofrey was less believable merely because some other television
program, and not Power Rangers, as he claims was being shown at
the time he was supposed to be watching television at 9:00 o'clock
in the evening of 27 December 1996. Being battered by the defense
counsel on the matter, Jeofrey explained that he was so riveted to
the television program Power Rangers that he failed to keep track of
the title of the other programs or of the exact time they were
actually shown. The triviality of the alleged "inconsistencies" can
hardly affect either the substance or the veracity and weight of
Jeofrey Abes testimony which, on the contrary, can serve to
reinforce rather than weaken his credibility.[14
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The fact that Ymbol failed to confirm the presence of Jeofrey in his
house on the night of 27 December 1996 does not cast suspicion on
Jeofrey's testimony. The uncertainty of Ymbol's denial of Jeofery's
presence in his house became apparent when Ymbol clarified that,
with the exception of a few, he could not recall the identity of the
twenty (20) or so individuals who were also watching television at
that time. He was unsure whether Jeofrey was among those viewing
the television. Not being sure of Jeofrey presence does not discount
the possibility that he was in fact present at the place.

The alibi of accused-appellants cannot persuade this Court

especially so since they failed to prove by clear and convincing
evidence that it was impossible for them to be at the scene of the
crime at the time it was committed. Nonetheless, positive
identification by the principal eyewitness, in conjunction with other
evidence for the prosecution, i.e., blood-stained shirt found and
identified by other witnesses, leaves no room for doubt that the
three (3) accused-appellants authored the gruesome murder of
Willy Ondo.

The court a quo appreciated treachery for the reason that the three
(3) accused-appellants "ganged up on their quarry while the latter
was helpless and defenseless and committed on a nighttime x x x
x"[15 It correctly took into account the qualifying circumstance of
treachery although for the wrong reasons. In order that treachery
may be appreciated the following requisites must concur: (a) the
culprit employed means, methods and forms of execution which
tended directly and specially to insure the offender's safety from
any defensive or retaliatory act on the part of the offended party,
which means, that no opportunity was given the latter to do so;
and, (b) that such means, method or manner of execution was
deliberately or consciously chosen.[16 The fact that the culprits
resorted to overwhelming force, or that the victim was defenseless,
or that the crime was perpetrated under cover of darkness did not
in itself connote treachery. There must be a clear and palpable
showing that the assailants resorted to a method of attack that
would guarantee its execution without fear of retaliation on the part
of their prey. The following narration by Jeofrey is instructive on the
character of the fatal assault on the victim - [17
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Q: When Freddie Catian hit for the first time with the use of chaco,
where did he hit?

A: On the head, sir. (Witness pointed at the back of his head)

Q: And what happened to Willy Ondo?

A: He fell down.

Q: So when Willy Ondo fell down, how did Rogelio Calunod strike on
Willy Ondo hitting with (sic) his mouth?

A: He struck forcefully like this. (Witness demonstrated by making

striking motions with the use of his hand).

Q: And when Willy Ondo fell on the ground, after he was being hit
for the first time by Freddie Catian?

A: He fell down sir.

Q: So Willy Ondo was being stricken (by) Rogelio Calunod when

Willy Ondo was already lying on the ground?

A: He was not yet lying on the ground and that was the time that he
was struck by Rogelio Calunod.

Q: How did Freddie Catian strike for the second time with the use of
chaco?

A: First, it was so sudden, sir, and the striking was too fast that
Willy Ondo fell on his knees to the ground.

Q: And when Willy Ondo was about to fall on the ground, he was on
a stooping position?

A: Yes, sir.
Q: And his head was about to fall to the ground?

A: Yes.

Q: And then Rogelio Calunod, according to you, struck him on his

mouth, did I get you right?

A: Yes, sir.

Q: How come that Willy Ondo was hit on his mouth when he was
already on a stooping position and his head was about to fall on the
ground at that time that Rogelio Calunod delivered a strike on Willy
Ondo?

A: First he was standing and it was so sudden and the strike was so
sudden.

The presence of alevosia in the attack cannot be disputed. The

witness described the killing in clear terms. There is nary an iota of
doubt that the attack, being carried out suddenly and unexpectedly,
afforded the victim no occasion whatsoever to defend himself.
Treachery qualifies the killing to murder.

However, the trial court went far astray in its reasoning when it
ruled that the aggravating circumstances of evident premeditation,
cruelty and ignominy were also attendant in the commission of the
crime. To authorize the finding of evident premeditation, the
prosecution must establish (a) the time when accused-appellants
determined to commit the crime; (b) the act showing that they
clung to their determination; and (c) a sufficient interval of time
between the determination and the execution of the crime to allow
them to reflect upon the consequences of their act.[18 Other than a
chance encounter between the witness Jeofrey and the principal
antagonists in this case, there is a dearth of information to show
that accused-appellants had deliberately planned to commit the
crime and had persistently and consciously followed it
notwithstanding that they had ample and sufficient time to allow
their conscience to overcome the determination of their will, if they
had desired it, after meditation and reflection.
Neither does it appear that the murder of the victim was attended
by cruelty and ignominy. Ignominy is a circumstance pertaining to
the moral order, which adds disgrace and obloquy to the material
injury caused by the crime. The mere fact that accused-appellants
burned the body of the deceased is not sufficient to show that the
means were employed which added ignominy to the natural effects
of the act. Nor may we consider the circumstance of cruelty as
found by the trial court because there is no showing that the victim
was burned while he was still alive. For cruelty to exist, there must
be proof showing that the accused delighted in making their victim
suffer slowly and gradually, causing him unnecessary physical and
moral pain in the consummation of the criminal act. No proof was
presented that would show that accused-appellants deliberately and
wantonly augmented the suffering of their victim.

The trial court also found conspiracy "as can be shown by the unity
of purpose displayed by the three (3) accused in ganging up their
victim Willy Ondo."[19 Conspiracy in the statutory language "exists
when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it."[20 Conspiracy need
not be proved by direct evidence; it may be deduced from the mode
and manner in which the offense was perpetrated. It is sufficient
that the malefactors acted in concert to attain the same criminal
objective. As a rule, the concurrence of wills, which is the essence
of conspiracy, may be deduced from the evidence of facts and
circumstances, which taken together, indicate that the parties
cooperated and labored to the same end.[21 It must be shown to
exist as clearly and convincingly as the commission of the offense
itself.

The evidence clearly shows that the three (3) accused-appellants

conspired when they acted in concert to perpetrate the ghastly
incident. Catian and Calunod dealt the fatal blows while Sumalpong
watched in stolid silence, with nary a whimper of protest even when
his two (2) companions smashed their deadly weapons into the
body of their defenseless victim. Not content with his inaction,
Sumalpong then carelessly slung the body of their fallen victim over
his shoulder and walked away to an undisclosed location. Inferable
from the acts of accused-appellants themselves was a common
design, a community of purpose to attain their evil objective.
Pertinent is the testimony of Jeofrey Abe on direct examination
- [22
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Q: While you were on your way home walking was there an unusual
incident?

A: Yes, sir.

Q: What was that?

A: I saw there three (3) people sir.

Q: What were these three (3) people doing?

A: They were standing, sir.

Q: Who were these three (3) people?

A: Rogelio Calunod, Freddie Catian, and Samuel Sumalpong, sir.

Q: After that what happened?

A: There was one man whom they ganged up, sir.

Q: Who was the one man that the three (3) ganged up?

A: Willy Ondo, sir.

Q: How far were you at that time?

A: Around twelve (12) meters.

Q: How did you see these three (3) people when it was 11:00
oclock in the evening?

A: Because there was a moonlight sir.

Q: You said that the three (3) ganged up on one person whom you
identified as Willy Ondo, specifically what did Catian do?

A: Willy Ondo was hit by a chako by Freddie Catian.

Q: Where was Willy Ondo hit by a chako?

A: On the head sir.

Q: What part of the head?

A: Here (Witness pointed at the back of his head).

Q: Why do you say it was a chako?

A: Because there are two (2) pieces of wood connected to each

other, one piece was being held and the other was the one that hit.

Q: What did Rogelio Calunod do at that time?

A: He struck Willy Ondo with a piece of wood.

Q: Where was Willy Ondo hit?

A: On the face sir.

Q: Which part of the face?

A: Here (Witness pointed to his mouth).

Q: How many times did Rogelio Calunod hit Willy Ondo with that
chako?

A: Many times, sir.

Q: And how many times did Rogelio Calunod hit Willy Ondo with
that piece of wood?

A: Only once, sir.

Q: You mentioned of a piece of wood being used by Rogelio

Calunod, how long was that piece of wood?

A: About this sir. (Witness indicated a length of twenty-six (26)

inches).

Q: And how thick was that piece of wood?

A: It was rounded sir.

Q: What did Samuel Sumalpong do?

A: When Willy Ondo fell down, he carried Willy Ondo on his

shoulder.

Q: Who carried Willy Ondo on the shoulder?

A: Samuel Sumalpong sir.

Q: In what direction did Samuel Sumalpong go when he carried the

body of Willy Ondo?

A: I do not know about that sir, because in my fright I ran away

home.

Current jurisprudence dictates that the award of Fifty Thousand

Pesos (P50,000.00) as civil indemnity as well as moral damages is
mandatory upon the finding of the fact of murder. However, no
award may be made for actual damages since there is no basis for it
as no evidence was adduced by the prosecution to justify such
award.

WHEREFORE, the Decision of the court a quo  finding accused-

appellants Freddie Catian, Samuel Sumalpong and Rogelio Calunod
guilty of murder and sentencing each of them to reclusion
perpetua and jointly and severally to pay the heirs of the victim
Willy Ondo P50,000.00 as civil indemnity is AFFIRMED. In addition,
accused-appellants are ordered jointly and severally to pay the
same heirs P50,000.00 for moral damages. The award by the trial
court of actual damages however is deleted for lack of factual basis
no proof having been presented by the prosecution to establish the
same. Costs against accused-appellants.

SO ORDERED.