People of the Philippines vs. Alberto R.

Benito
Republic of the Philippines
SUPREME COURT
Manila
G.R. No. L-32042 December 17, 1976
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION
 
AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty to the charge of murder for having shot with
a .22 caliber revolver Pedro Moncayo, Jr. on December 12, 1969. The killing was qualified by treachery and aggravated by premeditation and
disregard of rank. It was mitigated by plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of February 13, 1975 affirmed the judgment of conviction. It appreciated
in Benito's favor the mitigating circumstance of voluntary surrender. The penalty was reduced to  reclusion perpetua. (People vs. Benito, 62 SCRA
351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating circumstance of immediate vindication of a grave
offense and that the aggravating circumstances of disregard of rank should not be appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the shooting, by Corporal E. Cortez and
Patrolmen J. de la Cruz, Jr., and 
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in this manner (Exh. A):
... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P. Paredes, Sampaloc, Maynila, at ako ay Clerk
2 sa Administrative Division at ako ay nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong November, 1965 ng ako
ay nasuspende sa aking trabaho dahil kinargohan nila ako ng "DISHONESTY" at nasuspende ako ng 60 days at nabalik ako sa
trabaho noong January 1966 pero kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC FUNDS, QUALIFIED THEFT,
ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at dinimanda din ako ng Civil Service ng Administrative case ng
"DISHONESTY" at dinismiss na ako sa trabaho ni Commissioner Subido noong February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa akin na sinabi ko sa inyo ay "fabricated"
lang ang mga evidensiya at ang gumawa ho noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y RAMOS at naka
pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at iyon namang "dismissal order" ni Commissioner Subido
ay inapela ko sa Civil Service Board of Appeals.
Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay naghirap na ko sa aking buhay at nahihiya
ako sa mga kaibigan ko. Ako ay assign(ed) sa collecting department noon at nagagalit sa akin ang mga empleyado ng Civil
Service dahil mahigpit ako sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil Service sa kalye Paredes at nakita ko si PEDRO
MONCAYO, Jr. at kinausap ko siya at tinanong ko siya na iyong kaso ko ay matagal na at hindi pa natatapos at baka matulungan
niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA
DITO" at umalis na ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr. sa loob ng compound ng Civil Service at sa
harapan ng maraming tao sinabi niya na "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang ginawa ko ay umalis
na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969, nakita ko si PEDRO MONCAYO Jr. na
nagmamanejo noong kotse niya sa kalye P. Paredes sa tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya sa kanto
ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong beses at tinamaan siya at napatumba siya sa kaniyang
upuan sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at kayo nga ang dumating kasama ninyo iyong
mga kasama ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty shells of the bullets which he had fired at
Moncayo.
The Police report contains the following background and description of the killing (Exh. B):
According to the suspect, he was a former employee of the Civil Service Commission at its main office located at P. Paredes,
Sampaloc. Mla., and was assigned as Clerk 2 in the Administrative Division from Nov. 1963 continuously up to Nov. 1965 when
he was suspended for "DISHONESTY".
After two months, he was reinstated but was criminally charged for QUALIFIED THEFT, MALVERSATION OF PUBLIC
FUNDS, ESTAFA and FALSIFICATION OF PUBLIC DOCUMENTS and administratively charged for "DISHONESTY"
culminating in his dismissal from the Civil Service on February 1966.
The aforecited criminal charges against the suspect was allegedly investigated by Asst. Fiscal MAGAT. Records from the CRID,
MPD, reveals that on Dec. 6, 1966, Hon. Judge ROAN of the City Court of Mla. issued a Warrant No. E-316758 for the arrest of
the suspect for the crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order No. OA-87409 for the arrest of the suspect for
the crime of MALVERSATION OF PUBLIC FUNDS. According to the suspect, the aforecited criminal and administrative
charges filed him were allegedly instigated and contrived by the victim and since the time of his dismissal, he was allegedly
jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and requested the victim to help him in his cases but the
former allegedly uttered to the suspect "UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA
DITO".
The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969, and when they met again, the victim
allegedly remarked in the presence of many people, "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect who
was humiliated and incensed, left.
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with an unlicensed Cal. 22 black revolver (w/ SN
- P-5317, Trademarked "SENTINEL", SQUIRES BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine (9) live Cal. 22 bullets
in its cylinder, waited for the victim outside the Civil Service compound at P. Paredes st. Sampaloc, Mla.
The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No. 
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation, surreptitiously followed the victim and when the
latter's car was at a full stop at the corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles, the suspect
without any warning or provocation, suddenly and treacherously shot the victim eight (8) times on the head and different parts
of the body at closer range which consequently caused the latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red private car (w/ Plate No. L-55117) by his co-employees
(composed of VICTOR VILLAR, ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital. Unfortunately, the
victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40 p.m. of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel Transactions Division and Acting Chief,
Administrative Division of the Civil Service Commission (Exh. E to E-2). The accused was a clerk in the cash section, Administrative Division of
the Commission, receiving P1,884 per annum  (Exh. D). He started working in the Commission on November 7, 1963.
On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil Service that Benito admitted having malversed
an amount between P4,000 and P5,000 from his sales of examination fee stamps. Moncayo's report reads as follows (Exh. F):
MEMORANDUM for 
The Commissioner 
Through Proper Channels
 This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative Division of this Commission, who, as had
previously been reported, malversed public funds in the amount of approximately P5,000.00 out of his collections from the sale
of examination fee stamps.
I wish to state that this matter came to my attention on the evening of March 1, 1965 when Mr. Teodoro Abarquez, Acting
Cashier I, reported to me that fifty (50) money orders at P2.00 each with a total vlaue of P100.00 were missing from a bundle of
money orders received from the Provincial Treasurer of Cotabato, which were kept by him in one of the cabinets inside the
Cashier's Cashier' room.
At the same time he also informed me that he suspected that Mr. Benito stole the missing money orders. His suspicion arose
from the fact that he found several money orders marked "Cotabato" as their place of issue among the cash receipts turned over
to him by Mr. Benito that afternoon as his collection from the sale of examination fee stamps. Mr. Abarquez showed to me the
said money orders issued in Cotabato which were turned over to him by Mr. Benito and after checking their serial numbers with
the records of list of remittances on file, we were able to establish definitely the fact that the said money orders were those
missing.
It may be stated that at that time, Mr. Benito was assigned to work in the Cash Section and one of his duties was to sell
examination fee stamps to applicants for examinations. It was then the practice of the cashier to issue to Mr. Benito in the
morning examination fee stamps to be sold during the day and in the afternoon he turned over to the Cashier the proceeds from
the sale of stamps including the unsold stamps issued to him. After considering the work performed by Mr. Benito, it became
evident that he succeeded in malversing the amount of P100.00 by substituting equivalent amount of money orders in the place
of the cash extracted by him from his daily collections from the sale of examination fee stamps when he clears his accountability
with the Cashier.
The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask him whether he had something to do with
the loss of the fifty (50) money orders at P2.00 each. At first he denied, but when I asked him where he obtained the money
orders issued in Cotabato which were included in his collections the day preceding, he admitted having stolen the missing
money orders.
Having confessed his guiltk, I then asked Mr. Benito when he started committing the said irregularity and how much in all did
he actually malversed out of his daily collections from the time that he started the anomaly. He stated in the presence of Mr.
Abarquez that he started in January, 1965 and that although he did not know exactly the total amount malversed by him, he
believed the amount to be between P4,000.00 to P5,000.00. He also confessed that he used the money orders remitted by the
Provincial Treasurer of Negros Occidental in the amount of P3,436.00 in substituting various amounts extracted by him from
his daily cash collections and used by him for personal purposes.
It appears from the records that the List of Remittances covering the money orders received from the Provincial Treasurer of
Negros Occidental was duly receipted by Mr. Benito. He was supposed to issue an Official Receipt therefor in favor of the said
Provincial Treasurer and then turn over to the Cashier the amount involved for deposit to the National Treasurer. The said List
of Remittances, duly signed by Mr. Benito, is enclosed for use as evidence in this case.
I told Mr. Benito that I cannot do anything but report the matter to the Commissioner. However, he pleaded that he be given
first an opportunity to restore the amount before I make my report in order that the penalty that may be imposed upon him may
be lessened to a certain degree. As I thought it wise in the interest of the service to recover the amount involved, I allowed him to
go and see his parents in Naga City to raise the amount in question.
After two weeks, Mr. Benito informed me that his parents filed an application for a loan with the Government Service Insurance
System and that the proceeds of the said loan which he intended to use in restoring the amount malversed by him were expected
to be released during the last week of May, 1965. However, when the month of May, 1965 elapsed without the amount involved
having been restored, I conferred with Mr. del Prado, my immediate superior and asked him whether we should wait further for
the release of the said loan in order that the amount involved may be recovered. Mr. Prado consented to giving him a little more
time.
When Mr. Benito still failed to restore the amount in question by the end of June, 1965, I got hold of him on July 5, 1965 and
together with Messrs. del Prado, Abarquez and Gatchalian, also of this Commission, brought him before Deputy Commissioner
A. L. Buenaventura and reported the entire matter to the Deputy Commissioner. In the presence of Messrs. del Prado, Abarquez,
Gatchalian and myself, Mr. Benito admitted readily and voluntarily before the Deputy Commissioner the commission of the
offense of malversation of public funds as stated above.
In view of the foregoing, it is recommended that Mr. Benito be charged formally and that he be suspended from office
immediately considering the gravity of the offense committed by him.
(Sgd.) PEDRO R. MONCAYO
Administrative Officer II
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura that he had misappropriated his collections
and spent the amount in nightclubs and pleasure spots and for personal purposes. The decision dismissing him from the service reads as follows
(Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section, Administrative Division of this Office, for
dishonesty.
The following excerpts from the letter dated October 22, 1965 of the Commissioner of Civil Service connect respondent with the
alleged misappropriation of public funds representing his collection from the sale of examination fee stamps and constitute the
basis of the instant case against him:
An investigation made by this Commission shows that you malversed public funds in the amount of
P3,536.00 out of your collections from the sale of examination fee stamps while in the performance of your
official duties as Clerk II in the Cash Section, Administrative Division of this Office. It appears that you
succeeded in malversing the above-stated amount from your cash collections by substituting in lieu thereof
money orders worth P3,436.00 remitted to this Commission by the Provincial Treasurer of Negros Occidental
which were duly receipted for by you. It also appears that you extracted from a bundle of money orders
remitted by the Provincial Treasurer of Cotabato the amount of P100.00 in money orders which were kept in
one of the cabinets in the Cashier's room.
Respondent denied the charge. He explained, among others, that money orders were always kept in the Cashier's safe and he
had no access to them. Although he admitted having received money orders amounting to P3,436.00 remitted by the Provincial
Treasurer of Negros Occidental and another remittance of the Provincial Treasurer of Cotabato he, however, disclaimed having
substituted the same for cash collections in his sale of examination fee stamps. He reasoned out further that he could not be
charged with malversation of public funds inasmuch as he was not then an accountable officer.
It appears that respondent, as Clerk in the Cash Section, performs, among other duties, the selling of examination fee stamps,
receiving payments therefor, and receiving remittances in form of cash and/or money orders from provincial treasurers in
connection with examinations held in the provinces. It was also his duty to issue official receipts for said remittances. In the
course of the performance of his duties, he received said remittances from the Provincial Treasurers of Negros Occidental and
Cotabato, but no official receipts were issued by him, as shown by the reply telegrams pertaining thereto. While records disclose
that remittances from the province of Cotabato were submitted to the Cashier of the Civil Service Commission, there is no
evidence showing that remittances from Negros Occidental were likewise submitted.
Investigation further reveals that 50 money orders were discovered missing from the remittances of Cotabato Provincial
Treasurer which were kept in the cabinet of the Cashier. On or about March 2, 1965, the Cashier of the Commission noticed that
15 money orders turned over by respondent as part of his collections in the sale of examination fee stamps were among the
missing money orders. This triggered off the filing of this case against the respondent.
On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio Buenaventura having misappropriated an
aggregate amount ranging from P3,000 to P7,000, which he spent in night clubs, pleasure spots and other personal benefits.
Despite the testimonies of several witnesses regarding his confession, including that of the then Deputy Commissioner himself,
respondent, when asked to take the stand, denied his previous admission.
 Instead, he argued that the cash and accounts of the Cashier of the Civil Service Commission, when examined by representatives
of the Auditor's Office, did not indicate any shortage and therefore there was no irregularity involved. This argument is not well
taken. Inasmuch as the remittances received by respondent from said Provincial Treasurers of Negros Occidental and Cotabato
were not in turn given corresponding official receipts, naturally, the same were not reflected on the Cashier's cash book.
The weakness of respondent's defense lies not so much on its failure to establish convincingly his innocence as its
irreconciliability with established facts. Obviously, none of the circumstances in this case is consistent with his claim of
innocence. On the contrary, all of them put together produce reasonable assurance of respondent's guilt.
In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as charged. Wherefore, he is dismissed from the
service effective upon his receipt of this decision.
In the interest of the service this decision is executed also on the date of his receipt of this decision.
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing him. The appeal was pending at the time when
he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo, allegedly made upon seeing Benito in the
compound of the Civil Service Commission near the canteen at eleven o'clock in the morning of December 12, 1969 (about six hours before the
shooting): "Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo said: "Hindi ko alam na itong Civil Service
pala ay istambayan ng magnanakaw." (27 tsn December 26, 1969).
Mitigating circumstance of immediate vindication of a grave offense. — Benito contends that Moncayo insulted him when he (Moncayo)
remarked that a thief was loitering in the premises of the Civil Service Commission. Benito argues that that remark "was tantamount to kicking a
man already down and to rubbing salt into a raw wound" and that, as it was made publicly and in a loud voice, he was exposed to ridicule in the
presence of his officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16, 1975, acquitting him of the charge of malversation
in connection with his alleged misappropriation of the fees collected from the examinees of the 1974 patrolman examination. That same decision
makes reference to Benito's exoneration from the administrative charge. The court's decision reads as follows:
The accused is charged with malversation under the following information:
That on or about and during the period comprised between October 17, 1964, to February, 1965, inclusive, in
the City of Manila Philippines, the said accused being then employed as Clerk I of the Civil Service
Commission, a branch of the government of the Republic of the Philippines, among whose duties were to
accept payments of fees collected from the examinees of the 1964 Patrolman examination, and by reason of
his said position received the total amount of P3,536.00, with the duty to turn over and/or account for his
collections to the cashier of the Civil Service Commission immediately or upon demand but the said accused
once in possession of the said amount of P3,536.00, with intent to defraud, despite repeated demands made
upon him to turn over and to account for the same, did then and there willfully, unlawfully and feloniously
misappropriate, misapply and convert and malverse the said amount to his own personal use and benefit, to
the detriment of public interest and to the damage and prejudice of the said Civil Service Commission in the
said amount of P3,536.00, Philippine currency.
Contrary to law.
The evidence shows that the accused had an appointment as clerk in the Civil Service Commission from May 27, 1964, as clerk I,
range 23 from June 1, 1965 and as clerk I, range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the duty, among others, of
selling Civil Service examination- fee stamps and to receive payment therefor, as well as to receive remittances of money orders
and checks from the provincial treasurers for payments of examination fee stamps (Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the period alleged in the information, testified in his direct
examination that Benito was working in his office; that one of the duties that he assigned to him was to sell examination fee
stamps; that it was customary for him to give stamps to Benito at the start of office hours in the morning and that Benito turned
over to him the proceeds of the sale, as well as the unsold stamps, at the close of office hours in the afternoon; that one
afternoon he noticed that Benito turned over to him 50 money orders from Cotabato, together with some cash, as proceeds of
the sale of stamps for that day; that he remembered that he was missing money orders from one of his cabinets where he kept
them; that when he discovered that the 50 money orders were those which were missing, he reported the matter to Pedro
Moncayo, the chief administrative officer; on March 1, 1965; that the money orders were for P2.00 each, and were payments of
the examination fees from Cotabato (Exhibit F); that he discovered the loss of the 50 money orders on February 28, 1965 and
reported it to Moncayo on March 1, 1965, together with the list of missing orders (Exhibit M); that after receiving the report,
Moncayo called Benito to the office of Abarquez where he admitted taking the missing money orders; that Moncayo submitted a
memorandum to the Commissioner, dated October 21, 1965, after giving Benito a chance to refund the value of the money
orders (Exhibit O). Alipio Buenaventura, acting Deputy Commissioner at the time, and Eliseo S. Gatchalian, budget officer,
testified that when Benito was confronted with the report of Moncayo and Abarquez, he admitted that he misappropriated about
P3,000.00 because of bad company and that he asked for a chance to refund the money.
Under cross-examination, Abarquez elucidated his testimony in his direct examination and explained that when Benito turned
over the proceeds of the sale of stamps for that particular day, he kept the sum of P100.00 and replaced it with the 50 money
orders that he had taken from the cashier's office to cover up the money that he had pocketed. When he was asked when he
discovered that Benito substituted the 50 money orders from Cotabato, he answered that he checked them the following night
(March 2, 1965) with the list of money orders remitted by the Provincial treasurer (Exhibits F, F-1); but when he was confronted
with his affidavit which he executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he had only verified 15 money
orders missing as of April 18, 1966 and that he did not keep any record of the money and the money orders given to him by
Benito on March 1, 1965.
He also admitted that the room where he kept the money orders in an unlocked drawer was also occupied by two other persons,
and that this was the first time that he had not followed the usual procedure of keeping them in the safe. He further admitted
that, although regular examinations were conducted during the period of October 1, 1964 to February 28, 1965 by the examiners
of the Civil Service Commission and the auditors of the General Auditing Office, they did not find any shortage in the accounts
of Benito.
Finally, when the Court asked him what happened to the 50 money orders, at first he hinted that they were not deposited with
the Bureau of Treasury because they were reported missing; but when pressed further, he said that he deposited them, but did
not issue any official receipt for them. When asked if he had any evidence to show that they were actually deposited, he admitted
that he could not even remember when he deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built its case, is too weak and shaky to sustain a finding of
guilt because of his glaring inconsistencies, contradictions and gaps in memory. The prosecution has failed to present
convincing evidence that the 50 money orders were even lost: According to Abarquez he had only verified the loss of 15 on April
18, 1966, although he testified earlier that he determined the loss of 50 the night after March 1, 1965.
The examiners of the Civil Service Commission and the auditors of the General Auditing Office did not find any irregularity in
the cash accountability of Benito, according to Abarquez. This was corroborated by Romeo Jarabelo, auditor of the Commission
on Audit and Miguel Games, auditing examiner assigned to the Civil Service Commission, who testified for the accused.  Benito
was in fact exonorated the administrative charge filed against him for the time same transaction (Exhibit E).
In fact, the testimony of Abarquez under cross-examination that he has not issued any official receipt for the 50 money orders
and his inability to prove that he deposited them with the bureau of Treasury gives rise to the suspicion that other persons, not
the accused, may have stolen the 50 missing money orders. Even without taking into account the testimony of the accused, who
denied the testimonies of the witnesses for the prosecution, the court believes that the prosecution has failed to prove the guilt
of the accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de oficio.
The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the mitigating circumstance of vindication of a
grave offense because it was not specifically directed at Benito. The prosecution notes that the remark was uttered by Moncayo at eleven o'clock in
the morning. According to Benito's testimony (not consistent with his confession), he saw Moncayo three hours later or at two o'clock in the
afternoon and inquired from him about his case and Moncayo said that he had already submitted his report and he could not do anything more
about Benito's case (26 tan). As already stated, the assassination was perpetrated at around five o'clock in the afternoon of the same day.
Assuming that Moncayo's remark was directed at Benito, we see no justification under the circumstances recited above for changing our prior
opinion that the mitigating circumstance of "haber ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al autor del delito,"
cannot be appreciated in Benito's favor. As aptly stated by the ponente, Justice Esguerra, Benito "had more than sufficient time to suppress his
emotion over said remark if he ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de España) no ha apreciado la proximidad ... cuando la
ofensa se realizo por la mañana y el delito tuvo lugar por la tarde(Sentencia de 11 noviembre 1921); por regla general no es proxima cuando
transcurre tiempo suficiente para la razon recobre su imperio sobreponiendose a la pasion (Sentencias de 28 mayo 1882, 4 noviembre 1893, 24
junio 1908, etc.) ... Si falta el requisito de la proximidad debe desestimarse (Sentencia de 3 julio 1950). Exige gravedad en la ofensa y proximada en
la reaccion." (Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed., p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en favor del autor de un homicidio cometido 'algunas
horas despues de haberle invitado el interfecto a renir y golpeado en el pecho con las manos', porque el tiempo transcurrido entre los golpes y la
muerte fue suficiente para que el animo del reo se serenase (Sentencia de 24 Junio 1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica
Española 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito and the assassination was more than sufficient to
enable Benito to recover his serenity. But instead of using that time to regain his composure, he evolved the plan of liquidating Moncayo after
office hours. Benito literally ambushed Moncayo just a few minutes after the victim had left the office. He acted with treachery and evident
premeditation in perpetrating the cold-blooded murder.
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was not the latter's alleged defamatory remark that
the Civil Service Commission compound was a hangout for a thief or for thieves but the refusal of Moncayo to change his report so as to favor
Benito. Benito did not act primarily to vindicate an alleged grave offense to himself but mainly to chastise Moncayo for having exposed the alleged
anomalies or defraudation committed by Benito and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank.— Benito contends that disregard of rank should not be considered against him because there was
no evidence that he "deliberately intended to offend or insult the rank" of Moncayo. That contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service Commission and that the killer was a clerk in the same office
who resented the victim's condemnatory report against him. In that situation, the existence of the aggravating circumstance of "desprecio del
respeto que por la dignidad mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his superior, the chief of police (People vs. Hollero, 88 Phil.
167) and to the killing of the acting Spanish consul by his subordinate, the chancellor of the consulate, who had misappropriated the funds of the
consulate, which misappropriation was discovered by the victim (People vs. Martinez Godinez, 106 Phil, 597, 606). In these two cases the murder
was aggravated by disregard of rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.
 The People of the Philippines vs. Jerry Ballenas
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 124299             April 12, 2000
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
CESAR LACANIETA alias "Boy Alog", JERRY BALLENAS alias "Marlon Marquez" and Carlito Gamad, accused, JERRY
BALLENAS, accused-appellant.
 
GONZAGA-REYES, J.:
Consorcia Tayo (Consorcia) claims that her daughter, 19-year-old WILMA TAYO (WILMA) was abducted at gunpoint on March 20, 1987. WILMA
was found dead the next day, her body bore signs that she was first raped then brutally stabbed ten times. Four persons were suspected as
perpetrators of the crime: JERRY BALLENAS (BALLENAS) aliasMARLON MARQUEZ, CESAR LACANIETA (LACANIETA) alias BOY ALOG,
ALBERTO SALVADOR (SALVADOR) and CARLITO GAMAD (GAMAD). SALVADOR was shot dead during the police investigation and GAMAD
was also shot dead after the re-investigation conducted by the Office of the Provincial Fiscal of San Jose, Antique.
Based on the records of this case, LACANIETA and BALLENAS were already charged with murder at the Regional Trial Court, Branch 12 of San
Jose, Antique. Since BALLENAS had already been arraigned for murder, an Information for Forcible Abduction with Rape was filed on October
12, 1987 against BALLENAS and LACANIETA before the same court. LACANIETA thereafter posted bail, but he eventually absconded. The
Information was then amended on June 19, 1989 to read as follows:
At the instance of the mother of the deceased offended party, Wilma Tayo, who has subscribed and sworn to a complaint attached to the
records of the above-entitled cases, the undersigned Assistant Provincial Prosecutor accuses JERRY BALLENAS  alias "MARLON
MARQUEZ" of the crime of forcible abduction with rape committed as follows:
That on or about the 20th day of March, 1987 in the Municipality of Sibalom, Province of Antique, Republic of the Philippines and within
the jurisdiction of this Honorable Court, the above-named accused together with Cesar Lacanieta who is still at large and Alberto
Salvador and Carlito Gamad, both deceased, being then armed with gun and knife and by means of force and intimidation and with lewd
designs, conspiring, confederating together and mutually helping one another, did, then and there willfully, unlawfully and feloniously
abduct and carry away Wilma Tayo at a gun point (sic) to an uninhabited place and while there, by means of force and intimidation, have
carnal knowledge of the said Wilma Tayo against the latter's will.
Contrary to the provisions of article 335 of the Revised Penal Code in relation to Article 342 of the same Code. 1
Trial fiscal Juan C. Mission, Jr. was of the opinion that the proper charge against BALLENAS is forcible abduction with rape "because an
independent act of forcible abduction preceded the rape and murder of the deceased Wilma Tayo," and not the special complex crime of rape with
homicide.2
The arraignment of BALLENAS for forcible abduction with rape came belatedly because it was only after the case was already submitted for
decision when the trial court discovered that BALLENAS had not yet been arraigned. Both the prosecution and defense then agreed to arraign
BALLENAS and to consider all the evidence earlier presented as reproduced. BALLENAS was accordingly arraigned on the Amended Information
on February 18, 1992; he pleaded not guilty. The evidence for the prosecution consisted of the testimonies of Consorcia and Florencio Millones
(Florencio) and Exhibits "A", "B", "C", and "D" as documentary evidence, while the defense presented BALLENAS as its lone witness.
The version of the prosecution as summarized by the trial court is as follows:
On March 20, 1987 about 7 o'clock in the evening, the Wilma Tayo (sic) and her mother Mrs. Consorcia Tayo were in their house at Sitio
Bulho, Cubay-Sermon, Sibalom, Antique. They were about to eat supper when someone called to them asking to light a cigarette. Wilma
Tayo asked who was calling and the answer was "I am Junior, let me light my cigarette". Wiima Tayo opened the door slightly and there
stood accused Jerry Ballenas alias Marlon Marquez. Accused did not light his cigarette but instead blew the gas lamp and put out the
light. He held Wilma Tayo by the wrist.
Accused Jerry Ballenas pointed a short firearm to Wilma Tayo and Consorcia Tayo. Accused told Wilma Tayo to accompany him to Maria
Leong-on, his girlfriend. Wilma Tayo refused as they were about to eat supper. Consorcia Tayo also told her daughter, Wilma Tayo not go
out (sic) because it was already dark. Accused Jerry Ballenas forced Wilma Tayo to go out with him and struck the hand of Consorcia
Tayo and pointed the handgun at her. Accused held Wilma Tayo tightly and took her away.
Because of the abduction, Consorcia Tayo sought the help of a neighbor, Andres Mallorca, whose house is about 20 meters away from her
house but to no avail, Andres Mallorca shut the door on her for fear of Jerry Ballenas as the letter is known as a member of the dreaded
Sparrow Unit of the New People's Army.
The following morning, Consorcia Tayo reported the abduction of Wilma Tayo to her son-in-law who is a member of the Integrated
National Police. She learned from Aurelio Gamad that her daughter Wilma Tayo was already dead. The police then proceeded to the
scene of the incident.
At the time Wilma Tayo was abducted, she was 19 years old. She was single and a third year student in the Polytechnic State College of
Antique, Sibalom, Antique.
Consorcia Tayo spent P30,000.00 for the funeral of Wilma Tayo. Consorcia was shocked and she felt pain with the death of her only daughter
Wilma Tayo. To Consorcia Tayo no amount of money could compensate the death of her daughter Wilma Tayo whom they loved so much.
BALLENAS disavows any participation in the abduction, rape and killing of WILMA and offered this version, viz:
In the afternoon of March 20, 1987, at about past 4:00 p.m., he was in the house of CARLITO GAMAD. When darkness came, CARLITO
asked him to accompany CEZAR LACANIETA (a boarder of the GAMAD's), to the house of victim WILMA TAYO. Victim was the
girlfriend of LACANIETA. On the way, LACANIETA told him of his plan to elope with victim, and asked him to talk to her. He proceeded
to the house of victim, while LACANIETA was left behind near the irrigation canal. Upon reaching the house of victim, he called out and
the mother answered his call and then victim came out of the house. He told victim that LACANIETA had something to tell her and that
he was waiting for her at the irrigation canal. Both of them proceeded to where LACANIETA was waiting and after he led victim to
LACANIETA, he went home (T.S.N., pp. 7-10, August 9, 1990). 3
On May 29, 1992, the Regional Trial Court, Branch 12 of San Jose, Antique rendered its Decision 4 finding BALLENAS guilty of forcible abduction
with rape, the judgment declares:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding the accused Jerry Ballenas alias Marlon Marquez
GUILTY beyond reasonable doubt of the crime of Forcible Abduction with Rape punished under Article 335 of the Revised Penal Code in
relation to Article 342 and Article 48 of the same Code with reclusion perpetua to death by reason of the use of a firearm by accused
Jerry Ballenas in the abduction of Wilma Tayo. And applying Article 63 of the Revised Penal Code, the penalty that should be imposed
should be the greater penalty of death there being two aggravating circumstances but because the present Constitution prohibits the
imposition of the death penalty accused Jerry Ballenas is hereby sentenced to suffer a prison term of  reclusion perpetua or life
imprisonment and to suffer the accessory penalty provided for by law and he is ordered to indemnify the heirs of the deceased Wilma
Tayo the sum of P50,000.00 and to pay Consorcia Tayo, the sum of P30,000.00 for the funeral expenses incurred by her for the funeral
of the deceased Wilma Tayo and to pay the cost.
SO ORDERED.5
In this appeal, BALLENAS questions the quoted decision on these grounds:
I.
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF FORCIBLE ABDUCTION WITH RAPE.
II.
THE COURT A QUO ERRED IN ORDERING ACCUSED-APPELLANT TO INDEMNIFY THE HEIRS OF VICTIM IN THE AMOUNT OF
P50,000.00, THE SUM OF P30,000.00 FOR FUNERAL EXPENSES AND TO PAY THE COSTS. 6
This Court is convinced that the trial court did not err in concluding that BALLENAS is guilty beyond reasonable doubt of the forcible abduction
and rape of WILMA. In asserting his innocence, BALLENAS foists the defense of alibi, a defense that has long been considered as intrinsically the
weakest of all defenses.7 Basic is the rule that the defense of alibi should be rejected when the identity of the accused has been sufficiently and
positively established by eyewitnesses to the crime because alibi cannot prevail over the positive identification of the accused by the prosecution
witnesses.8
In this case, Consorcia, the mother of WILMA, positively identified BALLENAS as the person who went to her house and abducted her daughter at
gunpoint that fateful night. Moreover, the testimony of Florencio fortifies the theory of the prosecution that after the abduction of WILMA,
BALLENAS together with LACANIETA, SALVADOR and GAMAD raped and stabbed WILMA. According to Florencio, he was passing through the
street of Barangay Catmon, Sibalom, antique when he saw "Boy Alog" (LACANIETA) lying on top of WILMA. 9 The hands of WILMA were then
held down by BALLENAS and SALVADOR. 10 Surprised by the presence of Florencio, LACANIETA stood up and told the former that they were
just having a "happy-happy". 11 Florencio then left and after reaching three brazas, he hid to see what the group was up to. 12Florencio testified that
he thereafter saw four men take turns in ravishing and stabbing WILMA. 13 The following testimony of Florencio establishes the participation of
BALLENAS in the crime charged:
Q: Mr. Millones, you said that you are a resident of Barangay Catmon, Sibalom, Antique, how long have you been a resident of that
plade?
A: I was born there.
Q: Are you still a resident in that place?
A: Yes, sir.
Q: On March 20, 1987, were you still a resident of that place?
A: Yes, sir.
Q: On that day, about 7:00 o'clock in the evening can you recall where you were?
A: Yes, sir, I was walking on the street of Barangay Catmon, Sibalom, Antique and it was already past 7:00 o'clock in the evening.
Q: Where did you come from?
A: I came from Durog leading to Catmon.
Q: Where were you going then?
A: I was intending to go to the house of my deceased mother whose wake falls on that night.
Q: While walking from Durog towards your house, can you recall if you were able to observe any unusual incident?
A: Yes, sir.
Q: What was that about?
A: While I was in the street of Brgy. Catmon, Sibalom Antique, I saw four persons, three are squatting, while the other one is lying flat on
his stomach and I thought there (sic) were all drinking.
Q: As you pass by these four persons, did you start any conversation with them?
A: While I was approaching them and when I reach that place, the fellow who was lying flat on his stomach, stood up and told me that
they were just having a happy happy so I will just pass by my way.
Q: What else did you see when he stood up?
A: When he stood up, he told me I will proceed on my way and I saw that the three persons were holding a girl.
Q: You said they were holding a girl, do you know that girl?
A: Yes, sir, Wilma Tayo, daughter of Consorcia Tayo.
Q: Aside from Marlon, do you know that three other persons?
A: Yes, sir.
Q: Who were they?
A: They were Alberto Salvador, Carlito Gamad, Marlon and Boy Alog.
Q: And who was that person who was lying flat on his stomach?
A: Boy Alog.
Q: If these three persons are inside the courtroom, could you please point to them?
A: Only one is here inside the courtroom.
Q: And who was that?
A: Jerry Ballenas.
INTERPRETER:
At this juncture, the witness pointed to a man seated inside the courtroom and when asked by the Interpreter what his name is, identified
himself as Jerry Ballenas.
Q You said that three persons were holding on to Wilma Tayo, will you please tell us who among these three persons were holding Wilma
Tayo and on what part of the body?
A: Carlito Gamad was holding the hands of Wilma Tayo and the hands of the girl are both stretched above his head.
Q: How about the two other persons?
A: While Jerry Ballenas and Alberto Salvador, Jr. were holding on each of the leg of the girl.
Q: How did these Jerry Ballenas and Alberto Salvador, how were they holding the legs of Wilma Tayo.
A: Wilma was lying flat on his (sic) back on the street and each of these persons were holding on each of the leg of Wilma Tayo.
Q: Are the legs of Wilma Tayo held fell (sic) to the ground or raised up?
A: The legs are joined to the ground in V-position.
Q: Do you know if Wilma Tayo saw you pass by?
ATTY. ABIERA:
Incompetent, your Honor.
COURT:
Sustained.
FISCAL MISSION:
After you were told that they were just there for a happy happy, what did you do?
A: I told them I will pass my way.
Q: After that, what did you do?
A: I walk farther and observe.
Q: How far did you walk and observe these persons?
A: I walk from the place about three brazas so that I could observe what they were doing.
Q: Will you please demonstrate to the court by pointing inside the courtroom how far more or less is three brazas?
INTERPRETER:
Witness is pointing to the wall of the other courtroom of Branch 11 which is more or less 8 to 9 brazas.
FISCAL MISSION:
Q: Now, upon reaching that place about 8 brazas to make some observation, what did you do?
A: I hid and observe what they were doing.
Q: Did you observe anything else?
A: Yes, sir.
Q: What did you observe?
A: I saw them. These four took turns in raping the girl.
Q: Then what else did you see?
A: After raping Wilma Tayo, they also took turns in stabbing her.
Q: How long did you observe the group?
A: I could not determine the length of time I stayed in that place because I do not have a watch.
Q: After making such observation, what did you do?
A: After I have witnessed that horrifying incident, I just proceed to the house of my deceased mother. 14
The autopsy report made by Dr. Julito V. Osunero, Chief of the Ramon Maza Memorial District Hospital, Sibalom, Antique confirms the testimony
of Florencio. The report contains these findings:
1. Stab wound, 1 inch long left side Neck, point of entrance and point of exit, Right side neck thru and thru.
2. Stab wound, 1 inch long left side Neck, point of entrance and point of exit, Right side neck thru and thru.
3. Stab wound, 1 inch long Left side neck and point of exit Right side Neck thru and thru, cutting carotid and jugular vessels.
4. Stab wound, 1 inch long, Epigastric Area perforating Abdominal Cavity perforating Liver.
5. Stab wound, 1 inch diameter perforating Abdominal Cavity perforating Stomach.
6. Stab wound, 1 inch long, Right anterior Chest perforating thoracic Cavity penetrating Right Lung.
7. Stab wound, 1 inch long, Right Lumber Area perforating Abdominal Cavity penetrating Kidney.
8. Stab wound, 1 inch long, Lumbar Area Right, perforating Abdominal Cavity.
9. Stab wound, Inter-scapular, 1 inch long, muscle depth.
10. Stab wound, Inter-scapular, 1 inch long, muscle depth.
11. Contusion both thigh, 2 inches diameter, left and 3 inches diameter, right.
12. Hymen Lacerations 3:00 o'clock and 9:00 o'clock, Fresh. 15
The cause of the death of WILMA is reported as due to hemorrhage secondary to wounds on the neck, chest, abdomen and back. 16
The trial court opined that the contusions on the thighs of WILMA show that her legs were forcibly set apart to facilitate the rape of WILMA. That
WILMA was raped is evidenced by hymenal lacerations, still found fresh on March 21, 1987, the day the autopsy was conducted. We agree with the
trial court that based on the evidence, it could readily be concluded that the perpetrators stabbed WILMA several times after the commission of
the rape. 17
In a desperate attempt to reverse the decision of the trial court, BALLENAS impresses upon this Court his theory that if he indeed committed the
crime charged, he would not have exposed himself to Consorcia at the time that WILMA was abducted.  18 BALLENAS also points out that his
return to Catmon the following Monday after the death of WILMA and on which date he was arrested, belies his participation in the despicable
crime. 19 BALLENAS argues that if he was guilty of the crime, he would not have returned to Catmon to face the possibility of being arrested since
the victim was with him on the night of March 20, 1987. 20
We are not persuaded. A telling detail in this case is the fact that the mother of the victim witnessed first hand the abduction of her daughter at
gunpoint. Consorcia has no reason to wrongfully implicate BALLENAS. As the mother of the deceased victim, Consorcia would want nothing short
of justice for her dead daughter. BALLENAS does not deny the fact that he went to see WILMA to fetch her that evening of March 20, 1987. In
professing his innocence, BALLENAS merely denies the allegations of Consorcia that he took away WILMA at gunpoint and offers the defense that
he merely talked to WILMA to convince her to meet with LACANIETA. Well-settled is the rule that denial is an intrinsically weak defense which
must be buttressed by strong evidence of non-culpability to merit credence. 21 An affirmative testimony is far stronger than negative testimony,
especially so when it comes from the mouth of a credible witness. 22 The fact that BALLENAS exposed himself to Consorcia all the more indicates
his brazenness in abducting WILMA. The return of BALLENAS to Catmon after the death of WILMA cannot be also taken as a badge of his
innocence. It is the credible and unwavering testimony of Consorcia that stands as solid proof of the guilt of BALLENAS.
BALLENAS assails the testimony of Florencio on the ground that it "abounds in inconsistencies" 23 and is not credible. The alleged inconsistencies
are however not clearly established. Notably, Florencio unequivocally said that he saw LACANIETA, BALLENAS, SALVADOR and GAMAD rape
and stab WILMA. We have no reason to doubt the credibility of Florencio in light of the doctrine that where there is no evidence to show any
dubious reason or improper motive why a prosecution witness should testify falsely against the accused or implicate him in a serious offense, the
testimony deserves full faith and credit. 24 The initial reluctance of Florencio to get involved in this case is understandable and does not cast doubt
on his credibility as a witness. Whenever the issue boils down to credibility, we have always maintained that the credibility of witnesses and their
testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their
demeanor, conduct and attitude. 25 Findings of the trial court on such matters are binding and conclusive on the appellate court, unless some facts
or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted. 26
We therefore see no cogent reason to reverse the judgment of the trial court convicting BALLENAS of the crime of forcible abduction with rape.
The trial court ruled that there are two aggravating circumstances in this case, nighttime  27 and that the wrong done in the commission of the
crime was deliberately augmented by causing other wrong not necessary for its commission 28 . We however digress from the finding of the trial
court that the aggravating circumstances of nighttime and that the wrong done in the commission of the crime was deliberately augmented by
causing other wrong not necessary for its commission are present in the case at bar.
Based on the records, BALLENAS abducted WILMA around 7 o'clock in the evening of March 20, 1987 and that BALLENAS blew off the lighted
kerosene lamp offered by WILMA to BALLENAS to light his cigarette. 29However, Consorcia testified that there was some light coming from
another kerosene lamp upstairs that "reflected (sic) the door" and that Consorcia also had a kerosene lamp with her that BALLENAS also put
off. 30 In the case of People vs.  Pallarco, 31 the scene of the crime was sufficiently illuminated by a kerosene lamp, hence we ruled in that case that
nocturnity cannot be appreciated if it can be shown that the place was adequately lighted. 32 The prosecution also failed to prove that nighttime
was specially sought by the accused or taken advantage of by him or that nighttime facilitated the commission of the crime, circumstances which
must be present before the aggravating circumstance of nighttime can be appreciated. We also do not agree with the trial court that the
aggravating circumstance of cruelty attended the commission of the crime charged. The aggravating circumstance of cruelty is present when "the
wrong done in the commission of the crime is deliberately augmented by causing other wrong not necessary for its commission".  33 There is cruelty
when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation
of the criminal act. 34 In People vs.Ferrer35 , the aggravating circumstance of cruelty was not appreciated in the absence of positive proof that the
appellants inflicted the thirteen (13) wounds upon the victim in such a way that he was made to agonize before they rendered any of the blows
which snuffed out his life. In this case, WILMA sustained ten (10) stab wounds, but these multiple wounds alone do not prove that the accused
deliberately inflicted the injuries to prolong unnecessarily her physical suffering. Thus, the trial court improperly considered the aggravating
circumstance of cruelty in the case at bar.
What is present in this case is the aggravating circumstance of dwelling. Consorcia testified that her house has a ladder that leads to the main
door; that BALLENAS was at the main door when he called WILMA; and that when WILMA refused to go with BALLENAS, it was there that
BALLENAS forced WILMA to go with him. 36 Without a doubt, WILMA was abducted while she was still in her house. Thus, dwelling may be
appreciated as an aggravating circumstance considering that it is not necessary that the accused should have entered the dwelling of the victim. 37
BALLENAS committed the crime of forcible abduction with rape punished under Article 335 of the Revised Penal Code in relation to Article 342
and 48 of the same Code. The two elements of forcible abduction are (1) the taking of a woman against her will and (2) with lewd designs  38 . The
crime of forcible abduction with rape is a complex crime that occurs when there is carnal knowledge with the abducted woman under 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. 39 BALLENAS committed the crime of forcible abduction with rape on March 20, 1987, before the
passage of Republic Act 7659 or the Heinous Crimes Law that took effect on December 31, 1993. At the time that BALLENAS committed the crime
of forcible abduction with rape, the penalty then applicable was reclusion perpetua to death. The use by BALLENAS of a firearm in committing
the crime, a fact duly alleged in the information and proven in court, should have warranted the imposition of the death penalty. However, since
the crime took place prior to the implementation of RA 7659, the trial court correctfully ruled that the penalty that can be imposed on BALLENAS
is reclusion perpetua. Hence, despite the presence of the aggravating circumstance of dwelling, the penalty herein of reclusion perpetua would not
be affected. Under Article 63 of the Revised Penal Code, the penalty of reclusion perpetua should be applied regardless of any mitigating or
aggravating circumstance that may have attended the commission of a crime. 40
This Court is however constrained to disallow the amount of P30,000.00 for the burial expenses incurred by Consorcia. We can only give credit
for actual damages such as burial expenses if there are receipts that can support the claim. 41 The records in the case at bench do not substantiate
the P30,000.00 burial expenses sought by Consorcia, except for her lone assertion.
The P50,000.00 indemnity awarded by the trial court must be modified. Instead of the sum of P50,000.00 as indemnity, we award P75,000.00 as
civil indemnity considering that the crime was committed with the use of a weapon as alleged in the information and proven in court. In
consonance with jurisprudence, the increase of the civil indemnity to P75,000.00 is justified if the crime was committed under circumstances that
justify the imposition of the death penalty. 42 In People vs. Bañago43, the accused committed the crime of rape with the use of a gun on October 15,
1993, before the passage of RA 7659. This Court was thus precluded from meting out the death penalty, but nevertheless the accused was ordered
to pay civil indemnity in the amount of P75,000.00. 44
In spite of the death of the victim in this case, we cannot award the higher amount of P100,000.00, the civil indemnity awarded in cases of rape
with homicide. 45 The information in the case at bar is merely for forcible abduction with rape and not for rape with homicide.
Moral damages in the amount of P50,000.00 are also hereby granted to the heirs of the victim. The award of moral damages may be made to the
heirs of the victim in a criminal proceeding without the need for pleading or proof of the basis thereof. The fact that they suffered the trauma of
mental or physical and psychological sufferings which constitute the bases for moral damages under the Civil Code are too obvious to still require
recital thereof at trial. 46 Here, Consorcia testified as to the inconsolable loss that she felt when her only daughter was abducted, ravished and
killed. 47
Exemplary damages may be awarded in criminal cases as part of the civil liability if the crime was committed with one or more aggravating
circumstances. 48 Since dwelling is appreciated in this case as an aggravating circumstance under Article 14 (6) of the Revised Penal Code, the
award of P20,000.00 as exemplary damages is therefore in order.
WHEREFORE, the decision of the Regional Trial Court, Branch 12, San Jose, antique is AFFIRMED with the MODIFICATION that the accused-
appellant Jerry Ballenas alias Marlon Marquez is ordered to pay the heirs of the victim in the amount of P75,000.00 as civil indemnity,
P50,000.00 as moral damages and P20,000.00 as exemplary damages. The award of actual damages of P30,000.00 is deleted.
SO ORDERED.
 People of the Philippines vs. Roque Cabresos
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
 
G.R. No. 109776 May 26, 1995
PEOPLE OF THE PHILIPPINES, plaintiff appellee, 
vs.
ROQUE CABRESOS, accused-appellant.
 
FELICIANO, J.:
Roque Cabresos was charged with the crime of rape before the Regional Trial Court ("RTC"), Branch 26 of Medina, Misamis Oriental, in an
information which alleged:
That on or about 29th day of June 1988 at about 2:00 early dawn, more or less, at Sitio Upper Anoling, Barangay Kabulakan,
Municipality of Balingoan, Province of Misamis Oriental, Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused did then and there, willfully, unlawfully and feloniously, by means of force and
intimidation and with the use of a knife, have sexual intercourse with the offended party, Editha Pesidas, against her will and
without her consent.
The crime was committed with the attendance of aggravating circumstance of abuse of confidence and obvious ungratefulness
as accused was accommodated to live with the complainant's family.
Contrary to and in violation of Article 335, paragraph 1, in relation to Article 14, paragraph 4, all of the Revised Penal Code.  1
At arraignment, he entered a plea of not guilty. After trial, he was found guilty and sentenced in a decision rendered in November 19, 1992. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, this court finds Roque Cabresos guilty beyond reasonable doubt of the crime of rape with
the use of deadly weapon as defined and penalized under Article 335 of the Revised Penal Code with aggravating circumstances
of abuse of confidence, obvious ungratefulness, blood relationship and with the use of deadly weapon; and, thereby sentences
him to suffer an imprisonment under reclusion perpetua or thirty (30) years imprisonment, with full credit of the entire period
of his detention from February 17, 1989 to the present or finality of this judgment. Accused Roque C. Cabresos is hereby
declared as the father of the child Anthea Q. Pesidas and he is ordered to recognize and support said child in accordance with
the provisions of the Family Code.
Accused Roque Cabresos is likewise ordered to pay Editha Pesidas the sum of P30,000.00 by way of moral damages and
P20,000.00 by way of exemplary damages and to pay the costs. 2
Roque Cabresos appeals from his conviction assigning the following as errors allegedly committed by the trial court:
I
The trial court gravely erred in giving full credence to the testimony of the prosecution witness which is highly incredible,
inconsistent and unreliable.
II
The trial court gravely erred in not giving credence to the defense interposed by accused-appellant.
III
The trial court gravely erred in convicting the accused-appellant despite failure of the prosecution to prove his guilt beyond
reasonable doubt. 3
The trial court found that the evidence of the prosecution showed the relevant facts to be the following:
Complainant Editha Pesidas testified that she is 18 years old (at the time she testified), but she was 16 years old when she was
raped by accused. She is single, housekeeper and a resident of Kabulakan, Balingoan, Misamis Oriental and has studied up to
second year high school. She personally knows the accused Roque Cabresos whom she considers as her uncle because he is a
cousin of her mother. She identified the accused in the courtroom by touching his shoulder.
Editha Pesidas declared that last June 28, and June 29, 1988, her mother and father were in Talisayan District Hospital. She
was left in the house together with her brother and sister, who are 12 and 10 years old respectively. She slept alone in her room,
while her brother and sister slept in the adjoining room. Roque Cabresos lived with them and in that particular night of June 29,
1988, Roque Cabresos slept in the sala. Then, at dawn, which was 2:00 o'clock in the morning, more or less, already June 29,
1988, she was awakened by accused Roque Cabresos who pointed a sharp pointed knife to her neck, squeezed her mouth and
boxed her abdomen that she lost her strength.
There and then, Roque Cabresos took off her panty by tearing it. Then, accused placed himself on top of her and made a push
and pull movement (kiyo-kiyo). Accused inserted his penis to her vagina that she felt severe pain which lasted about half an
hour. The left hand of accused was holding the knife and was always pointing to her neck. She struggled, but accused is bigger
and stronger that she lost her strength. Ultimately, accused succeeded in raping her. Something sticky came out from his penis;
thereafter, Roque Cabresos threatened her; that, she would be killed if she would tell her parents. He uttered this threat about
five (5) times. Then, Roque Cabresos left her room and returned to sleep in the sala.
After three days from the commission of the crime, her parents returned home from the hospital. She did not tell them about
what happened because Roque Cabresos threatened to kill her.
Complainant testified that at the time accused raped her, she was fertile. In the succeeding months, she did not have monthly
menstruation. When her pregnancy was noticeable, her parents inquired about it, and she told them the truth. She told also her
grandfather Eufrocino Quejada some time last February 1989. She was accompanied to the house of a midwife for examination.
Thereafter, accompanied by her parents and grandfather, they went to the police station of Balingoan, Misamis Oriental, and
there, her affidavit was taken on February 14, 1989 which she subscribed on the following day before the prosecutor.  4
Appellant Cabresos' version of the facts was summarized by the trial court as follows:
On June 28, 1988 at 2:00 o'clock in the afternoon, accused appellant was at the house of Mr. Trapal in Upper Lapinig,
Balingoan, Misamis Oriental together with his companions, namely: Anastacio Cabresos alias "Baloloy", Eddie Aragon, Rene
Magallon, Dobby Magallon and Oloy Cabresos drinking one pocket size of Tanduay rhum. While they were drinking, they were
conversing about their works, especially the gathering of coconuts. After staying there for an hour, they proceeded to the
municipal building of Balingoan, Misamis Oriental. In the said store, they again drank one pocket size of Tanduay rhum. From
the store of Beboy Pebular, at about 5:00 o'clock in the afternoon of the same day, they went to the house of Alding Itom. At
Alding Itom's house, they butchered a dog, cooked the meat and ate the same as their sumsuman. After eating, at around 6:00
o'clock in the evening of the same day they proceeded to the house of his uncle Anastacio Cabresos. When they were already at
the house of his uncle, they once more drank another one pocket size of Tanduay rhum. The accused went to sleep at around
11:30 o'clock in the evening of the same date at the latter's house and woke up at about 5:00 o'clock in the morning of the
following day. That was June 29, 1988. 5
We are once again faced with the task of deciding who as between two (2) persons is worthy of belief and who is not. Private complainant Editha
Pesidas claims that she was raped by the accused. The accused denies the accusation and interposes the defense of alibi contending that he could
not have committed the rape because he was somewhere else at the time the alleged rape occurred. In support of his claim, Cabresos presented
witnesses who vouched that he was with them on the night and hour in question, carousing on cheap rum and on dog-meat with great abandon.
After much consideration and upon careful examination of the record, we find no reason to overturn the findings of the trial court.
The issue to be resolved is, of course, whether or not the prosecution was able to establish from the testimony of the complainant the guilt of the
accused beyond reasonable doubt.
We answer in the affirmative.
The question is essentially one of credibility and it is a well-settled rule reiterated in a long and still growing line of cases, that appellate courts will
generally not disturb the factual findings of the trial court since the latter are in a better position to weigh conflicting testimonies, having heard the
witnesses themselves and observed their deportment and manner of testifying, unless it is convincingly shown that the trial court had plainly
overlooked certain facts of substance and value that, if considered, might affect the result of the case.  6
In his appeal, appellant highlights certain points in complainant's testimony which he contends constitute inconsistencies or improbabilities
which weaken the force of her accusation. However, going over those same points we come to a different conclusion.
On the night of the rape, the victim's parents were not at home. They were at a hospital in Talisayan where the victim's mother had to be
brought 7 and they returned from the hospital only three (3) days later.  8Complainant positively identified the accused as her assailant. There was a
kerosene vigil lamp in the altar which illuminated her bedroom. 9Moreover, as found by the trial court, she was familiar (with) the persona of the
accused being a relative who resided in their house. 10
Complainant was only able to cry out for help once because the accused threatened her with a knife which he pointed at her neck;  11 he also
squeezed her mouth and boxed her stomach, as a result of which her strength and vitality fled her.  12
The fact that her young brother (12 years of age) and sister (10 years old) who were sleeping in an adjoining room did not hear her outcry does not
necessarily mean that the rape never occurred.
Appellant stresses the fact that after the alleged rape, the complainant testified that she continued going to school and not once did she report the
incident to her parents or the police although she passed by the police station everyday on her way to school.  13Furthermore, the complainant did
not report the outrage on her person to a relative of hers who is a policewoman.  14
We have previously held in earlier cases that delay in prosecuting the rape is not an indication of fabricated charges. 15 In at least one case, we
observed that "if the complainant did not become pregnant, she probably would never have revealed that she was raped by her uncle. Many
victims of rape never complain or file criminal charges against their rapists. They prefer to bear the ignominy and pain rather than reveal their
shame to the world or risk the rapists' making good their threats to kill or hurt their victims."  16This in fact was what happened here where the
victim reported the incident to her parents only eight (8) months after she had been raped when her pregnancy became noticeable. Similarly, in
the case of People v. Soterol, 17 where the appellant had contended that complainant's 6-month delay in filing the complaint and her silence after
the alleged rape render her charge incredible, we ruled that the complainant's failure to report the rape incident earlier had been fully and
satisfactorily explained. There, the complainant testified that she did not report the incident immediately because she believed her uncle's threat
to kill her.
Editha's inaction for eight (8) months was sufficiently explained by her in open court. Thus:
(Direct Examination of Editha Pesidas)
Q: And when your father arrived in your house, did he know about the incident?
A: No, sir.
Q: Why?
A: I did not say anything because I was afraid of the warning of Roque Cabresos.
xxx xxx xxx
Q: What was the warning or threat of the accused during the incident?
A: He said that if I tell my parents he would kill me.
Q: How many times did he utter these words?
A: Five times. 18
xxx xxx xxx
(Cross-examination of Editha Pesidas)
Q: When Roque Cabresos left your house, and your parents (were) already there, of course, your fear no
longer existed because your parents were already there?
A: I was still afraid of him.
xxx xxx xxx
A: I was still afraid for he might come back. 19
xxx xxx xxx
Q: Did it not occur to your mind to tell your parents that you were already pregnant?
A: No, because of fear and shame.
Q: Did it not occur to your mind that your parents would eventually discover you were pregnant and it was
better to tell them earlier so that if there is a person answerable for that they would run after him?
A: No, because of my fear.
Q: Did it not occur to your mind that your fear of being discovered will be useless because eventually your
parents will discover it?
A: No, because of my fear and shame.
Q: Did it not occur to your mind your shame will be useless because eventually your parents will know of your
pregnancy?
A: No.
Q: Why?
A: Because of my fear. 20
xxx xxx xxx
(Emphasis supplied)
While a mature woman would probably have acted differently, we are unable to conclude that Editha's continued fear of her violator and her
failure to inform her parents of the rape meant that it had not occurred at all.
Appellant Cabresos also assails the findings of the trial court concerning the delayed delivery of the child as not supported by evidence. The trial
court found that the complainant Editha Pesidas "gave birth within 300 days or 10 months allowable in medical science from conception or
fertilization, implantation, gestation and to birth of the child," 21 as a result of the sexual assault inflicted upon her by appellant. The trial court
said on this point:
. . . this court has taken note of the testimony of Editha Pesidas; that the onset of her monthly menstruation was June 9, 1988
and ended after five days. So, it must be June 14, 1988. Medical science has shown that from the first day of menstruation, the
first ten days thereafter is considered a safe period, meaning the woman is not fertile. This corresponds to June 10 to 19, 1988.
Then, the period from the 11th day to 20th day from the first day of menstruation is fertility period where the ovum in matured
and any time may be fertilized by a sperm. In the case of Editha Pesidas, [the] fertility period corresponds from June 20 to June
29, 1988, that is why, Editha Pesidas said that from the day she was raped, she did not have any monthly menstruation
thereafter, except a little blood spotting on July 20, 1988.
Medical science has taught us the basics of fertilization, conception, gestation and delivery of a child. First, the basics: a baby is
formed when the sperm cell from the man meets (or fertilizes) the woman's egg or ovum. An ovum, which is released by the
woman's ovary only once in about 28 days, has a maximum life of 24 to 72 hours (3 days only). The sperm cell, on the other
hand, may live for up to 6 days under very hospitable conditions, but usually lives for only about 24 hours. When the ovum is
not fertilized, it dies, and the absence of fertilization is normally indicated by the arrival of menstruation. On the other hand
when the ovum is fertilized, it attaches itself on the inner wall of the womb. This is sometimes known as implantation of
fertilized ovum. The inner wall does not shed off, so menstruation does not occur during the entire period of pregnancy.
Somewhere in July 20, 1988 is the attachment of the fertilized ovum in the womb of Editha Pesidas. It is the date of the
implantation of said fertilized ovum. That is why on said date, she had little blood spotting which is not considered as
menstruation. Counting therefrom, the birth of Anthea Q. Pesidas on May 1, 1988, the child's coming to this world was within
the 300 days or ten months, allowable in medical science from conception or fertilization, plantation, gestation, and to birth
of the child. 22
In computing the duration of pregnancy, "we should note that time is computed from the date of three different occurrences in the life of the
mother: one is the first day of the last menstrual period, one is the time of intercourse, and one is the time of the fertilization of the ovum . . . . .
"23 We find that the trial judge's computation in this case of the duration of complainant's pregnancy counted from the time of the fertilization of
the ovum, is medically accepted and recognized.
Moreover, from complainant's testimony, the uncontroverted fact is that the complainant gave birth to a baby girl 307 days or 10 months after the
date of her alleged rape. While the ordinary period of gestation is approximately 9 calendar months or 280 days, calculated from the first day of
the last menstrual period, 24there is nevertheless an abundance of medical authorities recording exceptions to this general rule.  25 In fact, it has
been held that length of pregnancy varies from 220 to 330 days from date of fruitful coitus.  26 Thus, the 280-day rule is not a hard and fast one. 27
On the other hand, as against the complainant's positive identification, the accused-appellant offers the defense of alibi. However, we have many
times held that alibi is a weak defense and cannot prevail over the complainant's positive and clear identification of the accused as the perpetrator
of the crime. 28 Moreover, the defense of alibi in this case must be rejected because aside from a clear and positive identification made by the
complainant, the possibility of the accused having gone to the scene of the crime at the time of its commission was not at all remote. Note the
following statements of defense witnesses:
(Cross-examination of Rene Magallon)
Q: And this place of Balodoy to Kabulakan, Balingoan, Misamis Oriental is how many kilometers, according
to your own estimate?
A: Three kilometers.
Q: And ordinarily hiking we can negotiate three kilometers in less than one hour?
A: Yes, sir. 29
xxx xxx xxx
(Cross-examination of Anastacio Cabresos)
Q: A healthy person like the accused can reach Barangay Kabulakan which is three kilometers only one
hourbecause he is healthy?
A: Of course, if he is healthy.
Q: Or maybe less than an hour?
A: Depending upon his speed in walking. 30
xxx xxx xxx
(Cross-examination of accused Roque Cabresos)
Q: Anastacio Cabresos alias Baludo is living in what place?
A: At Upper Lapinig.
Q: What is the distance from Upper Lapinig to Kabulakan, particularly the place of Pesidas?
A: Three kilometer, more or less.
Q: By ordinary hiking you can negotiate three kilometers with an hour hike?
A: It depends how you walk.
Q: But natural walking?
A: More than an hour, more or less. 31
xxx xxx xxx
Q: You mean, by ordinary hike, you can negotiate one kilometer by one hour?
A: Less than (an) hour.
Q: Even in thirty minutes?
A: Yes sir. 32
xxx xxx xxx
The settled rule is that, for alibi to be given credence, "an accused must not only prove satisfactorily that he was at another place at the time the
crime happened; but more importantly, that it was physically impossible for him to be at the scene of the crime at the time of its commission."  33
Of equal significance is the fact that the accused had the opportunity to commit the crime considering that  none of his witnesses actually saw him
at the hour in question because they were all already asleep at that time.
(Direct Examination of Rene Magallon)
Q: What time did Roque Cabresos go to sleep on June 29, 1988?
A: 1:20 in the morning
Q: About you, what time did you go to sleep?
A: 2:00 o'clock. 34
xxx xxx xxx
(Cross-examination of Anastacio Cabresos)
Q: So that at 9:00 o'clock you were already lying down and at 10:00 o'clock you were already sound
asleep?
A: About that hour.
Q: And you woke up the next morning at about 4:40?
A: 4:30 dawn.
Q: And the accused who was sleeping in your house was not sleeping with you in the same room that night?
A: He slept in another room.
Q: So that you cannot determine if Roque Cabresos was still in his room because you could not see him?
A: My house has three rooms and the room where they were sleeping I could pass by it.
Q: But you had no time to pass by the room where they were sleeping because you were sleeping at that
time?
A: I woke up at 4:30.
Q: It was only at 4:30 when you passed by the room where the accused (was) sleeping?
A: Yes, sir.
Q: At 12:00 midnight you did not wake up?
A: No, sir
Q: You did not wake up at 1:00 o'clock?
A: I woke up to urinate in my bedpan.
Q: At 2:00 o'clock did you wake up?
A: No, sir.
Q: It was only 4:30 when you woke up again?
A: Yes, sir. 35
xxx xxx xxx
(Emphasis supplied)
Although we affirm the findings of the lower court with regard to the guilt of the accused and its appreciation of the aggravating circumstances of
use of a deadly weapon, 36 abuse of confidence and obvious ungratefulness,  37 we must take exception to its appreciation of blood relationship as an
aggravating circumstance in this case. We have held in earlier cases  38that the relationship between uncle and niece is not covered by any of the
relationships mentioned in Article 15 of the Revised Penal Code. Nevertheless, the penalty imposed by the trial court need not be disturbed
considering the presence of other aggravating circumstances.
WHEREFORE, the decision of the trial court finding appellant Roque Cabresos guilty of rape and sentencing him to  reclusion perpetua and
declaring him as the father of the child Anthea Q. Pesidas, ordering him to recognize and support said child, is hereby AFFIRMED. The award to
the complainant of civil indemnity in the total amount of P50,000.00 (P30,000.00 as moral damages and P20,000.00 as exemplary damages) is
likewise AFFIRMED.
SO ORDERED.
 People of the Philippines vs. Domnino G. Grefiel
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
 
G.R. No. 77228 November 13, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
DOMNINO G. GREFIEL, accused-appellant.
 
DAVIDE, JR., J.:
Accused appeals from the Decision 1of Branch 3 (Guiuan) of the Regional Trial Court of Eastern Samar in Criminal Case No. 801, promulgated on
31 October 1985, finding him guilty of the complex crime of forcible abduction with rape and sentencing him to suffer:
. . . the undivisible (sic) penalty of Reclusion Perpetua, to indemnify the offended party, Marcela R. Torlao, the sum of
P20,000.00 with the accessories of the law and to pay the costs.
The conviction is based on the evidence adduced by the prosecution through its witnesses — the complainant Marcela Torlao, Patrolman
Estanislao Gamalo, Barangay Captain Pamfilo Inciso, Station Commander Francisco Gavan, Dr. Catalina Camenforte, Judge Enrique Garado —
which is faithfully summarized in the Brief for the Appellee as follows:
It was about 2:00 o'clock in the early morning of September 19, 1982. Victim Marcela Torlao, her husband and their four
children were sound asleep in their house located at Sitio Bagacay, Lawa-an, Eastern Samar when they were awakened by the
sound of their front door breaking. An intruder, later identified as accused-appellant Domino Grefiel, suddenly entered the
family's bedroom and beamed a flashlight on their faces shouting, "Walang kikilos ng masama, sapagkat ako'y mayor ng
sundalo."
Accused-appellant then grabbed Marcela Torlao's right hand and pulled her up. Seeing this, Marcela's husband made a move to
stand up but was prevented by accused-appellant who stepped on his shoulder. The Torlao children, who were awakened by the
commotion, cried in fear.
Accused-appellant dragged Marcela outside the house saying, "Walang titingin-tingin". Adding, (sic) "mga kasama pag mayroon
bumaba, barilin ninyo at paikutin ninyo ang bahay".
Marcela asked accused-appellant where he was taking her and what he planned to do with her. Accused-appellant answered,
"Wag ka nang maingay dahil sandali lang, babalik kaagad sa inyo".
While dragging Marcela towards the direction of the Lawa-an Elementary School, accused-appellant inserted his hand inside
the former's blouse and fondled her breast. When they reached the school, accused-appellant brought Marcela to the farthest
room of the Marcos-type building on the right nearest the stage.
There, Marcela was ordered by accused-appellant to sit on a table. He then proceeded to undress Marcela who stood unmoving
rooted by fear. Accused-appellant first took off Marcela's blouse then her skirt which had a garter top and her shorts.
When the victim was naked, accused-appellant quickly removed his own clothes. He then spread out a table cover on the floor
before taking hold of Marcela's waist and pulling her down to lie face up on the cemented floor.
Marcela, who was then four months pregnant, pleaded to (sic) accused-appellant, "Please don't do it, I am pregnant, please be
merciful". To which accused-appellant answered, "Putang ina, if you do not allow me to have intercourse with you, I will kill
you."
Unmoved by the pleas of the crying victim, accused-appellant continued kissing Marcela's face and sucking on her nipples while
he performed coitus with her.
Not satisfied with his bestial act, accused-appellant then ordered Marcela to lie face down on the floor pushed her knees to the
floor, raised her buttocks and performed anal intercourse with the victim. Marcela, who was at that point already weak with fear
and extreme pain, could not do anything but follow accused-appellant's orders.
Still unsatisfied, accused-appellant lay down on the floor face up and ordered Marcela to suck his penis. Mercifully, sleep
overtook the drunken perpetrator before he could force the victim to perform fellatio on him.
Gathering her strength, Marcela put on her clothes and crept out of the room. She went straight to the residence of Barangay
Chairman Pamfilo Inciso where she reported the incident. Inciso left the victim with his wife to let her sleep. He, in turn,
reported the incident to the local Station Commander of the Integrated National Police, Corporal Francisco Gavan.
At daybreak, Inciso, Cpl. Gavan and Pfc. Estanislao Gamalo, together with the victim, went to the Lawa-an Elementary School.
There, Inciso and Gavan found accused-appellant stark naked still asleep with the table cloth partially covering his body. Beside
him were his clothes and a pisaw  (small sharp pointed bolo).
Inciso and Gavan roused accused-appellant and brought him to the municipal building for investigation. Incidentally, Cpl.
Gavan prepared a sketch of both the schoolroom and the Torlao's residence with its broken front door.
About 10:00 o'clock of the same day, victim Marcela Torlao submitted herself to a medical examination conducted by Dra.
Catalina Monasterio-Camenforte, a resident physician of the Balangiga Emergency Hospital, who subsequently, prepared a
"Living Case Report". (Exhibit "D" and series).
Barely a month later, Marcela Torlao suffered a miscarriage.  2
In her Living Case Report, 3Dr. Camenforte made the following entries:
INTERNAL EXAMINATION FINDINGS:
Public (sic) hair fairly grown and scanty. Labia Majora & Minora are no longer well coapted. Hymenal opening originally linear
in shape is with an (sic) old complete lacerations at 7:00 o'clock & 3:00 o'clock in the face of the clock. Hymenal opening admits
2 fingers easily with no resistance. Vaginal rugosities are not appreciated. Vaginal canal is lax.
CONCLUSIONS:
1. No signs of traumas has (sic) been noted on external & internal examination.
2. Findings in microscopic Seminal Examination = three (3) Immobile sperms were seen, (probably dead).
3. Physical virginity already lost.
In the morning of the following day, 20 September 1982, the sworn statements of Marcela and her husband, Bienvenido Torlao,  4were taken by
Pfc. Patricio Abe, Jr. at the office of the sub-station commander of the INP of
Lawa-an, Eastern Samar. The same were, however, sworn to before Municipal Circuit Judge Enrique Garado on 29 September 1982.
Also on 20 September 1982, a criminal complaint for forcible abduction with rape against the accused-appellant was signed by Marcela; this was
sworn to before Judge Garado only on 29 September 1982 upon its filing with the 10th Municipal Circuit Court of Balangiga-Lawa-an, Eastern
Samar. The case was docketed therein as Criminal Case No. 580.  5
Judge Garado immediately conducted a preliminary examination and then issued a warrant for the arrest of accused-appellant.  6The latter was
arrested on the same date. 7On 9 October 1982, the accused files a Waiver of the second stage of the preliminary investigation.  8The Circuit Court
thereupon elevated the case to the then Court of First Instance of Guiuan, Eastern Samar.
On 12 November 1982, Acting 2nd Assistant Provincial Fiscal Roberto A. Navidad filed with the Court of First Instance at Guiuan, Eastern Samar,
an Information charging the accused-appellant with the crime of forcible abduction with rape. The case was docketed as Criminal Case No. 801.
On 6 December 1982, Fiscal Navidad filed an Amended Information with the following accusatory portion:
That on or about the 19th day of September, 1982 at 2:00 o'clock in the morning, in the municipality of Lawa-an, Province of
Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused armed with a deadly
weapon and pretending to be a soldier and by means of force, violence, intimidation and threats did, then and there, with lewd
and unchaste designs, wilfully, unlawfully and feloniously take and carry away Marcela R. Torlao, from her house to the school
building of Lawa-an Central School, Lawa-an, Eastern Samar, against her will and once said accused was in possession of the
said Marcela R. Torlao by means of force violence, intimidation and threats, did, then and there wilfully, unlawfully and
feloniously had (sic) carnal knowledge with said Marcela R. Torlao against her will and without her consent.
Contrary to law, with the aggravating circumstances of nighttime and craft.  9
The accused-appellant pleaded not guilty to the crime charged at his arraignment on 7 December 1982. 10Trial subsequently ensued. After
the prosecution presented its witnesses, counsel for the accused-appellant orally moved to be allowed to file a demurrer to evidence. In
its Order of 29 January 1985, the trial court granted the defense forty (40) days from receipt thereof within which to file the
demurrer. 11On 12 April 1985, accused-appellant filed his "Memorandum on Demurer (sic) to Evidence" 12contending therein that the
evidence for the prosecution failed to establish the crime of rape by the quantum of evidence required by law considering that (a) there is
doubt as to the identity of the accused, (b) there was even a token resistance offered by the complainant and (c) the findings of Dr.
Camenforte do not support a conclusion that accused-appellant had sexual intercourse with the victim.
The prosecution vigorously opposed the demurrer to evidence. 13Subsequently, on 30 July 1985, the new counsel for accused-appellant filed a
motion to withdraw the demurrer to evidence 14which the trial court granted on the same date. 15
Accused-appellant testified on his own behalf and presented no other witnesses. In his Appellant's Brief, he summarizes his testimony in this wise:
The accused-appellant as the sole witness for the defense testified that he and Marcela Torlao had several sexual liaisons by
mutual consent for the past three months, even thought they were not sweethearts; that on the evening of September 18, 1982,
while in attendance at the dance that was being held at the town plaza, Marcela Torlao extended an invitation to the accused-
appellant, through a child, to meet her at their usual rendezvous, at the Lawa-an Elementary School where they proceeded to
satisfy their animal passions.
Having left ahead of him, Marcela Torlao returned home only to discover that her husband had noticed her unusual arrival at
such a late hour. The husband, out of spite and in anger over their illicit liaison, insisted that Marcela Torlao lodge a complaint
against the accused-appellant for forcible abduction with rape. It was in light of the foregoing that Domnino Grefiel, sound
asleep from the liquor he consumed from the previous night and the sexual exertions, was roused by officers of the law and
detained at the municipal jail. 16
which We find to be supported by the transcripts of stenographic notes of his testimony.
The trial court refused to believe the accused-appellant's story which it describes as a  fantastic fallacy. 17 It gave full credit to the version of the
complainant whom it described as being "undoubtedly virtuous and with a moral excellence which cannot be trampled upon by a mere verbal
intrusion of an unfounded and uncorroborated (sic) declarations (sic) of the swain in the scene of the bench."  18
Finding the elements of the complex crime of forcible abduction 19with rape 20to exist, the trial court sentenced the accused-appellant to suffer the
penalty of reclusion perpetua, to indemnify the complainant in the sum of P20,000.00 and to pay the costs.
The court a quo did not take into account the aggravating circumstances of nighttime and craft which are alleged in the amended information
because as to the first, "it was not especially sought for by the offender to facilitate" the commission of the crime, and to the second, the pretense
that the accused is a soldier "was not employed to give entrance to the dwelling."  21
In this appeal, accused-appellant does not plead for his acquittal but merely asks this Court to modify the challenged decision by finding him
guilty only of forcible abduction. He thus submits this single assignment of error:
I
The Trial Court erred in convicting the accused-appellant of the complex crime of Forcible Abduction with rape when only the
crime of Forcible Abduction was established by the evidence.  22
and prays as follows:
WHEREFORE, in view of the foregoing, it is most respectfully prayed of this Honorable Court that the decision of the court  a
quo be modified finding the accused-appellant guilty of the crime of forcible abduction only and reducing his penalty
proportionately. 23
Having finally admitted committing the crime of forcible abduction, which he earlier vigorously denied up to the last minute while in the witness
box for according to him it was the complainant — through a child-courier — who arranged their illicit tryst, accused-appellant reduced the
difficult task of this Court to merely determining the merits of his contention that he did not commit the crime of rape. As to this, he no less
transilient. After dishing out his concocted story of the alleged tryst and both his and the victim's mutual satisfaction of their sexual urges, he filed
his Memorandum 24 which states, inter alia, that "there is a strong possibility that the complaining witness has no sexual intercourse or carnal
knowledge of the accused on the date and time of the incident in question"  25 because the Living Case Report of Dr. Camenforte discloses that only
three (3) immobile sperms, which were probably dead, were seen during the microscopic seminal examination moreover, on cross-examination,
Dr. Camenforte admitted that it is possible that the sperms could have belonged to the complainant's husband who had coitus with complainant
days before the rape. In the face of the accused's admission of sexual intercourse at the time and place proven by the prosecution, the suggested
possibility and malicious insinuation that the examined semen belonged to the complainant's husband is clearly preposterous. This, of course,
should not be taken against the accused-appellant for even if he had lied a thousand times, the weakness of his defense or even the lack of it would
not necessarily bring about his conviction. The fundamental law presumes him innocent; 26 to overthrow this presumption, the prosecution must
establish his guilt by proof beyond reasonable doubt, or that degree of proof which produces conviction in an unprejudiced mind.  27
Thus, the crucial issue that crops up is whether or not the evidence for the prosecution has shown beyond reasonable doubt that rape was
committed by the accused-appellant. The latter's final stand is that per his version, complainant submitted herself voluntarily to the sexual act;
and even assuming that this theory is to be rejected, accused-appellant claims that it is still clear that complainant failed to make manifest her
vehement objection and tenacious resistance to the intrusion against her honor and privacy, thereby negating the charge of the rape. He
capitalizes on the failure of the complainant to shout or put up a fight to defend her honor.
His arguments neither impress nor convince Us. The appeal must therefore fail.
By his admission that he forcibly abducted the victim which, by the way, was independently established by the evidence for the prosecution
beyond reasonable doubt, accused-appellant unqualifiedly affirms the existence of the elements of the crime of forcible abduction under Article
342 of the Revised Penal Code, namely: the taking of a woman against her will and with lewd designs. Indeed, the taking was against
complainant's will because she was dragged out of her house by means of force and intimidation. The abduction was not for any lawful or noble
purpose; as he now frankly admits, it was with lewd designs. The word "lewd" is defined as obscene, lustful, indecent, lascivious, lecherous. It
signifies that form of immorality which has a relation to moral impurity; or that which is carried on in a wanton manner.  28 To carry out his lewd
designs, accused-appellant pretended to be a "mayor ng sundalo," thereby suggesting his possession of military power and its concomitant
instrument of violence — a firearm. He suddenly grabbed complainant's right hand and pulled her up; when her husband made a move to stand
up, accused-appellant prevented the latter from doing so by stepping on his shoulder. As the accused-appellant dragged his unwilling victim
outside the house, he shouted the following instructions: "mga kasama pag mayron bumaba, barilin ninyo at paikutin ninyo ang bahay,"
thereby impressing upon the victim, her husband and anyone who may come to the rescue that he, a "mayor ng sundalo," had armed companions.
When the complainant pleaded that she be spared from the impending sexual assault because she was four (4) months pregnant, he threatened to
kill her. It is therefore clear that there existed a continuing intimidation which produced reasonable fear on the latter's part. Under such
circumstances, the failure to shout or offer tenacious resistance did not make voluntary complainant's submission to the criminal acts of the
accused-appellant. This Court further notes that the intimidation was further compounded by the latter's deliberate choice of time and place — the
crime was committed at the unholy hour of 2:00 o'clock in the morning and in an isolated place. This circumstances, taken together with the fact
that she had seen her husband stepped upon by accused-appellant, was still gripped by a well-founded fear that the accused-appellant had armed
companions and had just been threatened with death if she would not yield to his bestial desires, certainly made her realize that a shout for help or
a tenacious resistance would prove to be futile. It would be demanding too much from an ordinary mortal placed under such a stressful
psychological and emotional situation to require that she shout or ward off the impending evil. We have said before that the workings of a human
mind when placed under emotional stress are unpredictable and people react differently. In such a given situation, some may shout; some may
faint; and some may be shocked into insensibility; while others may openly welcome the intrusion.  29
Under Article 335 of the Revised Penal Code, rape is committed by having carnal knowledge of a woman through,  inter alia, the use of force and
intimidation. It is well established doctrine that for the crime of rape to exist, it is not necessary that the force employed in accomplishing it be so
great or of such character as could not be resisted; it is only necessary that the force employed by the guilty party be sufficient to consummate the
purpose which he had in view.  30Otherwise stated, when force is an element of rape, it need not be irresistible; it need but be present, and so long
as it brings about the desired result, all considerations of whether it was more or less irresistible is beside the point.  31So it must likewise be for
intimidation which is addressed to the mind of the victim and is therefore subjective. Intimidation must be viewed in the light of the victim's
perception and judgment at the time of the commission of the crime and not by any hard and fast rule; it is therefore enough that it produces fear
— fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at that moment or even thereafter as
when she is threatened with death if she reports the incident. Intimidation includes the moral kind as the fear caused by threatening the girl with a
knife or pistol. 32And where such intimidation exists and the victim is cowed into submission as a result thereof, thereby rendering resistance
futile, it would be extremely unreasonable, to say the least, to expect the victim to resist with all her might and strength. If resistance would
nevertheless be futile because of a continuing intimidation, then offering none at all would not mean consent to the assault as to make the victim's
participation in the sexual act voluntary.
Such voluntariness on the part of the complainant could hardly be imagined given the circumstances obtaining in this case. She was not only
forcibly abducted from her humble home in the presence of her husband and children, she was also forced to perform a perverse sexual act ——
anal coitus. And had her assailant not fallen asleep, she would have also been forced to perform fellatio on him. Despite the outrage and shame,
she lost no time in reporting the incident to the barangay captain. In less than twelve (12) hours from the commission of the crime, she narrated
the sordid details of her horrifying and harrowing experience in a statement given to the police authorities, submitted to a medical examination
and signed a criminal complaint for forcible abduction with rape against the accused-appellant. Not only did these acts demonstrate courage of the
highest order, they also enhance the complainant's credibility. It has been repeatedly said by this Court that when a woman admits that she has
been raped, she says in effect all that is necessary to show that rape has been committed; if her testimony meets the test of credibility, the accused
may be convicted on the basis thereof. 33 We have likewise ruled that a complainant would not make public the offense, undergo the troubles and
humiliation of public trial 34and endure the ordeal of testifying to all its gory details if she had not in fact been raped, 35for no decent Filipina would
publicly admit that she had been raped unless it is the truth.  36 Considering the inbred modesty and antipathy of a Filipina to the airing in public
things that affect her honor, it is hard to conceive that the complainant would assume and admit the ignominy she had undergone if it were not
true. 37
There is no doubt in Our minds that it is only the desire to bring the accused-appellant to justice and for him to answer for his evil deeds which
impelled the complainant to immediately report the crime, subject herself to a medical examination, file the necessary complaint and undergo the
troubles, inconvenience, scandal, embarrassment and humiliation of a public trial.  38
There is, however, no evidence to show that the rape was committed with the use of a deadly weapon. A finding on this point would ordinarily be
crucial because a higher penalty — reclusion perpetua to death — is imposed under the third paragraph of Article 335 if rape is committed with
the use of a deadly weapon. Of course, in view of Section 19(1), Article III of the 1987 Constitution, the death penalty can no longer be imposed.
The trial court based its affirmative conclusion as to the existence of a deadly weapon on the discovery of the  "pisaw" near the accused-appellant
who was sleeping at the scene of the crime. The trial court thus stated:
The bolo, commonly known as the "Pisaw", (Exhibit "D"), as physical evidence and coming from the reliable source having ( sic)
found by the Chief of Police at the side of the sleeping naked accused, undenied by him, surely was the deadly instrument
referred to by the complainant whom (sic) she had mistakenly believed to be a gun used during her forcible abduction.  39
We have carefully and meticulously read the transcript of the stenographic notes of the complainant's testimony and note that she never
stated that she saw a pistol in the possession of the accused-appellant. She merely concluded that being "the head of the soldier ( sic)," he
had a pistol. Thus:
FISCAL:
Q Now, on the way from your house to the School building, what was he doing to you aside from dragging
you?
A I was being frightened, which (sic) I was made to understand that since he was the head of the soldier (sic),
he has a pistol. 40
The prosecution did not exert further efforts to elicit from her a statement that she did in fact see a pistol or any other firearm in the
accused-appellant's possession or at the place where the "pisaw"was actually recovered. In short, there is absolutely no proof that
accused-appellant used the "pisaw" to commit the crime of rape of facilitate its commission.
Verily then, the accused-appellant committed the complex crime of forcible abduction with rape.  41Forcible abduction was the necessary means
used to commit the rape. Pursuant to Article 48 of the Revised Penal Code, the penalty for the more serious crime shall be imposed. Article 342 of
the said Code penalizes forcible abduction with the penalty of reclusion temporal while Article 335 penalizes the crime of rape with reclusion
perpetua. The latter then is the more serious crime. Accordingly, the penalty imposed by the trial court —  reclusion perpetua — is correct. We do
not, however, agree with its conclusion that the generic aggravating circumstance of nighttime, which is alleged in the Information, should not be
appreciated against the accused-appellant. It is obvious that nighttime was deliberately and especially sought or taken advantage of by him to
facilitate the commission of the crime. 42He deliberately waited until the unholy hour of 2:00 o'clock in the morning, thereby being assured of the
cover of darkness and the stillness of the sleeping world, before unleashing his criminal fury to accomplish his evil deed.
Although not alleged in the Information, the generic aggravating circumstance of dwelling should have also been appreciated against the accused-
appellant considering that it was fully established without any objection on the part of the defense. This Court has held that in the crimes of
abduction 43and illegal detention 44 where the offended party is taken from his house, dwelling may be taken into account as an aggravating
circumstance.
However, the presence of the foregoing aggravating circumstances would not affect the imposable penalty considering that the same is
indivisible.45
Taking into account the nature of the crime committed and the following facts: that the victim is a married woman who was on the fourth month
of pregnancy for her fifth child at the time the crime was committed; she was forcibly abducted in the presence of her husband and children; and
she suffered a miscarriage barely a month thereafter, thus necessarily causing her untold mental anguish, fright, serious anxiety, fear, moral
shock, besmirched reputation and social humiliation, the indemnity, in the concept of moral damages,  46 is hereby increased to P50,000.00.
Considering, further, the moral corruption, perversity, viciousness and wickedness of the accused-appellant who cruelly ravaged the complainant,
savaged the sanctity of her home and grievously wronged the institution of marriage by raping a married woman after forcibly abducting her in the
presence of her husband, the imposition of exemplary damages by way of example to deter others from committing similar acts or correction for
the public good 47 is in order. Accordingly, he should be ordered to pay P25,000.00.
WHEREFORE, except as above modified, the appealed decision of Branch 3 of the Regional Trial Court of Eastern Samar in Criminal Case No.
801 is AFFIRMED. As modified, the indemnity awarded by the trial court is hereby increased from P30,000.00 to P50,000.00 and the accused-
appellant DOMNINO G. GREFIEL is further ordered to pay the offended party, Marcela R. Torlao, the amount of P25,000.00 as exemplary
damages.
Costs de oficio.
SO ORDERED.
 People of the Philippines vs. Mariano Umbrero, et al.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
 
G.R. No. 93021 May 8, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
MARIANO UMBRERO, ALFREDO COSTALES alias PIDO, JIMMY AGLUBA and LEON CERIA, accused. MARIANO UMBRERO,
ALFREDO COSTALES @ Pido, and JIMMY AGLUBA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Alfredo J. Donato for accused-appellants.
 
GUTIERREZ, JR., J.:p
This is an appeal from the decision of the Regional Trial Court of Aparri, Branch 8, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing considerations, the Court finds the accused Mariano Umbrero, Jaime (Jimmy) Agluba
and Alfredo Costales alias Pido, guilty of the crime of MURDER as defined and penalized under Article 248 of the Revised Penal
Code and therefore sentences each of them to suffer the penalty of RECLUSION PERPETUA; to pay jointly and severally an
indemnity of THIRTY THOUSAND (P30,000.00) PESOS to the heirs of Alfonso Urbi; and each of them to pay 1/7 of the costs.
(Rollo, p. 31)
The information filed against the accused reads:
That on or about November 29, 1980, in the Municipality of Lallo, province of Cagayan, and within the jurisdiction of this
Honorable Court, the said accused, Mariano Umbrero, Alfredo Costales alias Pido, Jimmy Agluba and Leon Ceria, together with
Eugenio Rigon alias Inyong, Bartolome Tangonan and Danny Costales who are still at-large and not yet arrested, armed with
guns, conspiring together and helping one another, with intent to kill, with evident premeditation and with treachery, did then
and there wilfully, unlawfully and feloniously assault, attack and shoot one, Alfonso Urbi, inflicting upon the latter wounds on
his body which caused his death.
That the offense was committed with the following aggravating circumstances, to wit: (a) that it was committed with abuse of
superior strength, and (b) that it was committed by a band. (Records, p. 33)
The accused Mariano Umbrero, Alfredo Costales, Jimmy Agluba and Leon Ceria pleaded not guilty on arraignment. The other accused, Eugenio
Rigon, Bartolome Tangonan, and Danny Costales were not arraigned as they were still at large.
The prosecution evidence upon which the trial court based its finding of guilt beyond reasonable doubt is as follows:
xxx xxx xxx
. . . Angelina Urbi Ragsac, daughter of the victim Alfonso Urbi testified: She was at home in Sta. Teresa at about 2:00 in the
afternoon of November 29, 1980 when several armed men came, two (2) of whom shot her father under the house, accused
Alfredo Costales and Danny Costales. She was not able to recognize the other armed men. She was two (2) meters from her
father when he was shot. Of the two accused mentioned, she only identified in Court accused Alfredo Costales. Danny Costales
was not present. He was the one who shot her father. He followed her father when he ran outside the house but the companions
of Alfredo Costales followed and killed him. Alfredo Costales and Danny Costales shot her father with short firearms. Their
companions had long firearms. All the accused ran after killing her father. She and her mother did not do anything because they
were afraid; however, they went to get the body of her father later on. He sustained five (5) gunshot wounds on his breast and
stomach. She reported the killing of her father to barangay captain Felix Villamin. Thereafter she executed an affidavit marked
as Exhibits "E" and "E-1" which were admitted by the defense as part of the record. Mariano Umbrero was among the armed
men who came to their house in the afternoon of November 29, 1980. She knows him personally.
On cross-examination defense counsel Atty. Alfredo J. Donato made reference to question No. 5 and the corresponding answer,
in the affidavit of the witness (Exhibits "E" & "E-1 ") to be marked as Exhibit "I " for the defense. She admitted that the first one
to shoot her father was Danny Costales of Jurisdiccion, Camalaniugan known and called Dominador who executed an affidavit.
She knew that Alfredo Costales was apprehended. As to Danny Costales, she does not know whether or not he was apprehended.
In 1980 their place was infested with NPA and she believed that Danny Costales and his companions were members of the NPA.
She does not know of any motive of the armed men in killing her father. She, her father and mother and her children were then
eating on the ground floor of their house when the armed men arrived. Her father stood up when Danny Costales asked for
water to drink. Her father went to the door to see him and his companions. It was there where Danny Costales shot him.
On August 5, 1985 the prosecution presented Eugenia Urbi, surviving spouse of the victim Alfonso Urbi. Her testimony is hereby
reproduced substantially: In the afternoon of November 29, 1980, at about 2:00 o'clock, she and her deceased husband were in
the house of their daughter Angelina Urbi Ragsac in Sta. Teresa, Lallo. To their surprise, armed men came to ask for water.
When her husband went to them to give water he was shot by Johnny Costales. Mariano Umbrero, Jimmy Agluba and Pido
Costales were his companions. She identified in Court Pido Costales who gave his name as Alfredo Costales, Mariano Umbrero
and Jaime Agluba. Johnny Costales was not in Court. She knows Leon Ceria he being her barriomate. She saw him the following
day after the killing of her husband when he passed by their house. She did not see Leon Ceria with the group of armed men who
went to their house. She was about a meter from her husband when he was shot by Johnny Costales in the presence of his
companions. Johnny and Danny Costales was admitted as one and the same person. At the time Danny Costales shot her
husband, some of his companions were near him and some were a little bit far. Those who were near him were the accused Pido
Costales, Mariano Umbrero and Jimmy Agluba. They were all armed. Danny Costales and his companions left after shooting her
husband. Thereafter the killing of her husband was reported to barangay captain Felix Villamin who instructed Juan Urbi to get
the body of her husband. She could not be compensated for the killing of her husband. She was investigated, and in connection
therewith she executed an affidavit (Exhibits "F" and "F-1").
On cross-examination, she testified that Danny Costales shot her husband three (3) times. She clarified that when they were
eating, Danny Costales and his companions suddenly arrived. They asked for water. Her husband stood up and went to see
them. That was the time when Danny Costales shot her husband for the first time. Her husband ran outside, followed by Danny
Costales and shot him again. Danny Costales and his companions then left. She did not go immediately to the place of her
husband because she was afraid. At the time Danny Costales shot her husband, accused Alfredo Costales, Jaime Agluba and
 Mariano Umbrero were holding their firearms at their sides. They drew their guns when her husband ran outside the house;
however, they did not prevent her husband from running outside the house. She could not tell as to whether or not Mariano
Umbrero, Jimmy Agluba and Alfredo Costales fired their guns.
Exhibit "B", sworn statement of Eugenia Urbi, was also adopted as Exhibit "4" for the defense, to show that the victim sustained
five (5) gunshot wounds, the entrance of which were 0.5 cm. showing that the fatal weapon was fired by one person.
On August 28, 1985 the prosecution presented Martin Pagaduan, also a resident of Sta. Teresa, Lallo, Cagayan. He was in his
ricefield north of the house of Alfonso Urbi on the day he was shot to death. He saw more than ten (10) armed men passed by
going westward. Not long thereafter, he heard gun reports from the house of Alfonso Urbi which is less than fifty (50) meters
from his ricefield. The armed men returned and proceeded eastward. They took his brother Juan Pagaduan. He was able to
identify Mariano Umbrero, Jimmy Agluba, Pido Costales, Inyong Rigon, Florante Tabunal and Romy Arellano who were with
the group of armed men he saw. When he heard gun reports he saw the armed men surrounding the house of Alfonso Urbi. The
persons in the house cried loudly. He went to hide because he was afraid. When the armed men were already gone, he went to
the house of Alfonso Urbi. He saw him already dead in his yard. He sustained gunshot wounds. He identified in Court accused
Mariano Umbrero, Jimmy Agluba and Alfredo Costales. They were all holding firearms when they passed by. He was confronted
with his affidavit taken during the investigation conducted by the Integrated National Police of Lallo which was marked as
Exhibits "G" and "G-1 ".
On cross-examination he admitted that he was examined during the preliminary investigation conducted by the Municipal Trial
Court of Lallo. His signature appearing therein was marked as Exhibit "2" and the signature of Judge Pascual as Exhibit "2-B".
The question of the Court: "How did you know that there were ten (10) heavily armed men who were present in the house of
Alfonso Urbi on November 29, 1980 at around 2:00 o'clock in the afternoon when he was gunned down by these heavily armed
persons? Ans. I was around forty (40) meters away from these heavily armed persons preparing my harrow when I was attracted
by the presence of those armed persons when one of them by the name of Doming Arellano shot the late Alfonso Urbi with an
armalite was marked as Exhibit "2-D". (Rollo, p. 22-24)
The case as against Leon Ceria was dismissed for insufficiency of evidence.
As for Mariano Umbrero, Alfredo Costales and Jimmy Agluba, their version is summarized as follows:
xxx xxx xxx
. . . Mariano Umbrero corroborated his witness Alejandrino Umangay, that they they left Sta. Teresa and Rosario, respectively
because the soldiers ordered them to evacuate; they and other residents of the barangay were suspected as members of the NPA.
On November 29, 1980, Alejandrino Umangay went to collect from Mariano Umbrero an indebtedness of P200.00. To pay the
same Mariano Umbrero sought to mill his palay in Bical, Lallo, a distance of three kilometers in the ricemill of Gregorio
Cabulay. As they were putting in a sack the palay, two men arrived Ka Al the leader of the NPA and Danny Costales. They invited
Mariano Umbrero to the house of Alfonso Urbi. Mariano Umbrero excused himself for they were going to mill his palay, and
they told him to follow. At 4:00 o'clock their palay was milled and Mariano Umbrero started for his house at 5:00 o'clock.
Mariano Umbrero denied having been with Danny Costales, when he shot to death Alfonso Urbi.
The accused Alfredo Costales corroborated the testimony of his wife Maria Umoso, that on November 29, 1980 when Alfonso
Urbi was killed he was not in Sta. Teresa, Lallo, for he was in Aparri, Cagayan on the burial of Benilda Espino, their
granddaughter who died on November 23, 1980 (Exh. 4, Death Certificate) who was buried on November 28, 1980 in the
afternoon, and went back to Sta. Teresa at 5:00 o'clock and arrived at 9:00 o'clock in the evening. In 1980, the soldiers ordered
them to evacuate Sta. Teresa due to the presence of the NPA. Alfredo Costales denied having been with Danny Costales (no
relation) when he killed Alfonso Urbi on November 29, 1980, at about 2:00 o'clock in the afternoon. (pp. 7, 8 Decision)
The accused Jaime Agluba, corroborated the testimony of his wife Laureta Agluba, who testified that in 1980 soldiers ordered
residents of Sta. Teresa to evacuate due to the presence of NPA. On November 29, 1980, were not in Sta. Teresa but they were in
Newagac, Gattaran, a distance of about 50 kilometers. (should be 15 kilometers, TSN, January 17, 1989, pp. 10-11) As is their
usual work the accused Jaime Agluba, during farming time always went to help his sister Estrella Villamin, married to Rufino
Villamin. They left Sta. Teresa on November 23, 1980 and continued living in Newagac, until their return to Sta. Teresa, Lallo,
on December 2, 1980. Jaime Agluba denied having been with Danny Costales when he killed Alfonso Urbi on November
29,1980." (Appellant's Brief, pp. 3-4)
xxx xxx xxx
The appellants raise the following assignment of errors, to wit:
I
THAT THE HON. LOWER COURT ERRED IN NOT DISMISSING THE INFORMATION AS AGAINST THE ACCUSED
MARIANO UMBRERO, THERE BEING NO CRIMINAL COMPLAINT OR PRELIMINARY INVESTIGATION IN THE
MUNICIPAL COURT OR WAS THERE A PRELIMINARY INVESTIGATION IN THE OFFICE OF THE PROVINCIAL
PROSECUTOR, THUS DENYING HIM THE CONSTITUTIONAL RIGHT TO DUE PROCESS.
II
THE HONORABLE LOWER COURT ERRED IN CONVICTING ALL THE ACCUSED TO RECLUSION PERPETUA AND THE
PAYMENT OF P30,000.00 INDEMNITY. (Rollo, p. 50)
In the first assigned, error, Mariano Umbrero alleges that he was denied his right to due process. He states that there was no preliminary
investigation conducted as his name not included in the criminal complaint filed with the municipal court which conducted the preliminary
investigation.
The allegation is unmeritorious.
We agree with the Solicitor General that:
xxx xxx xxx
. . . [A]lthough appellant Umbrero was not named in the complaint filed by the police with the municipal trial court for the
purpose of conducting a preliminary investigation, the municipal judge upon being informed that Mariano Umbrero was one of
the perpetrators of the killing of Alfonso Urbi, issued a warrant of arrest and later ordered suspect Umbrero to file his counter-
affidavit. The record shows that appellant Umbrero was given the opportunity to answer the charges against him during the
preliminary investigation. (Appellee's Brief, pp. 6-7)
Moreover, it has been held in Parades v.  Sandiganbayan (G.R. No. 89989, January 28, 1991), reiterating this Court's ruling in People
v.  Casiano (1 SCRA 478, [1961]), that:
The absence of a preliminary investigation does not affect the court's jurisdiction over the case. Nor does it impair the validity of
the information or otherwise render it defective. If there was no preliminary investigation and the defendant, before entering his
plea, calls the attention of the court to the absence of a preliminary investigation, the court, instead of dismissing the
information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted. (pp. 7-8)
The appellant never asked for or called the attention of the court before entering his plea, as to the absence of a preliminary investigation. His
right to preliminary investigation, then is deemed waived as he failed to invoke such right prior to or, at least, at the time of the entry of his plea in
the court of first instance. (People v. Casiano, p. 483, supra) The entry of their plea constituted a waiver of their right to preliminary investigation
and any irregularity that attended it. (See People v. La Caste, 37 SCRA 767, 773 [1971])
Jurisdiction was acquired by the Court over the person of Mariano Umbrero as the accused appeared at the arraignment and pleaded not guilty to
the crime charged. (See Gimenez v. Nazareno, 160 SCRA 1, 5 [1988])
In the second assigned error, the appellants contend that there was no conspiracy, thus, they should all be adjudged as innocent. They asserted
that mere presence at the scene of the crime does not by itself indicate the existence of conspiracy. There must be proof of their participation in the
crime.
This contention must fail.
It is well-settled rule that conspiracy need not be proved by direct evidence but can be inferred from the acts of the accused. (People v. Alitao, G.R.
No. 74736, February 18, 1991) The appellants' actuations immediately prior to, during, and right after the shooting of Alfonso Urbi indicate their
common intention to commit the crime. The appellants were not merely present at the scene of the crime. The prosecution witnesses positively
identified the appellants as among the armed men who arrived at the scene of the crime, shot Alfonso Urbi, and left together after apparently
accomplishing their purpose. (TSN, April 10, 1985, pp. 2, 7; TSN, August 5, 1985, pp. 2, 6; TSN, August 28,1985, pp. 2-3)
The trial court stated:
xxx xxx xxx
It will be recalled that accused Mariano Umbrero, Jaime Agluba and Alfredo Costales,  alias Pido and others were all armed
when they went together to the house of the victim Alfonso Urbi. They were close to Danny Costales when he (Danny) asked for
water which was not their common purpose. Alfonso Urbi got near to see them. Suddenly he was shot by Danny Costales. He ran
outside the house but was overtaken by Danny Costales who pumped more shots on him all located on the vital parts of the
body, causing his instantaneous death. They all left together upon accomplishing their purpose. The accused were all holding
their firearms on their sides, while others stood guard and surrounded the house. The acts performed by all the accused before,
during and after the perpetration of the crime are indicative of a previous criminal design and unity of common purpose. ( Rollo,
p. 30)
The appellants although not active participants in the killing itself, made no effort to prevent it. In fact, the appellants even drew the guns that
were tucked on their waists when Alfonso Urbi, after being shot for the first time, tried to run outside of his house. (TSN, August 5,1985, pp. 18-19)
Conspiracy having been established, the appellants as co-conspirators are all guilty on the principle that the act of one is the act of all. (People v.
de Guzman, 162 SCRA 145,153 [1988])
The defense of alibi of the appellants is without merit. The appellants were positively identified by the prosecution witnesses as the witnesses were
only a few meters away from the crime scene. (TSN, April 10, 1985, p. 3; TSN August 5, 1985, p. 5).
The defense of alibi cannot prevail over the positive identification by the prosecution witnesses of the appellants (People v. Kyamko, G.R. No.
95263, December 18, 1990). There is nothing in the records which would show a motive or reason on the part of the witnesses to falsely implicate
the accused. Identification, then, should be given full credit. As there is no showing that the prosecution witnesses were moved by improper
motives, the presumption is that they were not so moved, their testimony therefore, is entitled to full faith and credit. (People v. Doctolero, G.R.
No. L-34386, February 7,1991)
In the instant case, the appellants failed to establish by clear and convincing evidence that they were at some other place and for such a period of
time as to negate their presence at the time when and the place where the crime was committed. ( See People v. Solis, G.R. No. 93629, March 18,
1991 citing People v. Riego, G.R. No. 90256, September 12, 1990)
The persons that the appellants presented to corroborate their alibis were their relatives.
Alfredo Costales and Jaime Agluba could have presented other people, aside from their wives, to corroborate their testimony that they were at
some place other than the scene of the crime. But even the testimony of Jaime Agluba's wife did not clearly show that Jaime Agluba was not in Sta.
Teresa as she stated that during their stay in Newagac her husband would go to the field and it was only the wife's belief that her husband was in
the field in the afternoon of November 29, 1980. (TSN, January 17, 1989, pp. 16-17) As regards Mariano Umbrero, he could have presented
Gregorio Cabulay (TSN, April 21, 1986, p. 27) aside from Alejandrino Umangay to support his statement. Umangay's corroboration is not that
credible as Umbrero and Umangay had known each other ever since they were still little boys (TSN, April 21, 1986, p. 31) and Umbrero's relative is
Umangay's niece. (TSN, April 21, 1986, p. 32) It has been ruled that the defense of alibi is weak if it is established mainly by the accused
themselves and their relatives and not by credible persons (See People v. Flores, G. R. No. 71980, March 18, 1991).
We agree with the finding of the trial court that the qualifying circumstance of treachery is present in the case at bar.
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.
(People v. Cempron, G.R. No. 66324, July 6, 1990; People v. Manzanares, 177 SCRA 427, 434, [1989])
The shooting of Alfonso Urbi was sudden and unexpected. The victim was unarmed, unable to defend himself. He was an unsuspecting victim as
the assailants just asked for a drink of water. (TSN, April 10, 1985, p. 20; TSN, August 5,1985, p. 2) He was totally unprepared to be able to defend
himself.
On the other hand, evident premeditation was not clearly established, contrary to the findings of the trial court. Although conspiracy existed, it
was merely inferred from the acts of the accused in the perpetration of the crime, the requisites necessary to appreciate evident premeditation
have not been met in this case. (See People v. Repe, 175 SCRA 422, 435 [1989]) The prosecution failed to prove all of the following: (a) the time
when the accused determined to commit the crime; (b) an act manifestly indicating that the accused had clung to their determination to commit
the crime; and (c) the lapse of sufficient length of time between the determination and execution to allow him to reflect upon the consequences of
his act. (People v. Iligan, G. R. No. 75369, November 26, 1990; People v. Montejo, 167 SCRA 506, 513 [1988])
Aid of armed men should also not be appreciated in this case, considering that the assailant as well as the appellants were in conspiracy.
(See People v. Candado, 84 SCRA 508, 524 [1978]; People v. Piring, 63 Phil. 546, 553 [1936])
The fact that Judge Tumacder did not preside at the trial of this case in its entirety, having taken over only when the second defense witness was to
be presented, did not detract from his appreciation of the prosecution evidence. The full record was available to him. ( See People v. Abaya, 185
SCRA 419, 424 [1990])
In view of the foregoing, the appellants were correctly found guilty beyond reasonable doubt of murder, but without the attendant circumstances
of evident premeditation and aid of armed men. The penalty to be imposed is reclusion perpetua. The indemnity to the heirs of the deceased is
raised to FIFTY THOUSAND PESOS (P50,000.00).
WHEREFORE, the appealed decision is hereby AFFIRMED with the aforesaid MODIFICATION.
SO ORDERED.
 People of the Philippines vs. Roberto Gerolaga, et al.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 89075 October 15, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
ROBERTO GEROLAGA, EFREN ATIVO and REMEDIOS RUADO, accused-appellants.
 
PANGANIBAN, J.:p
In this Decision, this Court emphasizes the need to review the facts and details of appealed cases with meticulous, laser-like precision.
While, as a rule, the findings of fact of trial courts are accorded great respect by appellate tribunals, still, the latter must wade through the
mass of evidence in order to ensure that the trial court did not overlook or misapprehend little details that could spell the innocence of
the accused, or at least mitigate their guilt. This is but consistent with the doctrine that all doubts must be resolved in their favor. Indeed,
it is far better to set free a thousand guilty persons than to unjustly punish an innocent one.
Realizing that this direct appeal did not have the benefit of the usual "filtering" layer of the Court of Appeals and noting that the assailed
judgment of conviction for murder was based purely on circumstantial evidence as well as on an uncounselled confession of guilt, we
pored over the evidence, particularly the voluminous transcripts of stenographic notes, and came to the ineludible conclusion that indeed
the court a quo overlooked and/or misapprehended some crucial bits of evidence and circumstances which when properly considered led
to the acquittal of two of the appellants, and the conviction of the third for the less damning crime of homicide instead of murder.
The Antecedents
The twists and turns of this case are absorbing enough to the mistaken as the plot of a storybook thriller or a movie script. They are not.
Rather, they are the flesh and blood drama of real life.
For the bizarre fatal stabbing of Antonio Sy on March 21, 1987, appellant Remedios Ruado-Sy, the deceased's sister-in-law, along with
her former employee, Roberto Gerolaga and her houseboy, Efren Ativo were charged with murder under Article 248 of the Revised Penal
Code. The Information 1 lodged with the Regional Trial Court of Masbate, Masbate on June 15, 1987 and docketed as Criminal Case No.
5247 reads as follows:
That on or about March 21, 1987, in the morning thereof, at the poblacion of the municipality of Aroroy, Province of Masbate,
Philippines, within the jurisdiction of this court, the above-named accused conspiring and helping one another, with intent to
kill, evident premeditation, treachery and in consideration of a price or reward, did then and there willfully, unlawfully and
feloniously attack, assault and stab one Antonio Sy y Tan with a double bladed dagger, hitting the latter on the chest, abdomen
and other parts of the body, thereby inflicting wounds which directly caused his instantaneous death.
Contrary to law.
All the accused pleaded "not guilty" during the arraignment on August 4, 1987. The prosecution presented seven (7) witnesses:
(1) Dr. Emilio Quemi — who testified and submitted a post-mortem examination (Exh. "A") and certificate of death (Exh. "C"), which
showed that the victim sustained seven (7) wounds, five (5) of them fatal, to wit:  2
1. Stab wound penetrating, measuring about 3 inches wide located at the epigastric region.
2. Stab wound, penetrating the abdominal cavity, measuring about 1 1/2 inches, located at the left abdominal wall, a little above and
lateral to the navel.
3. Stab wound, measuring about 2 inches wide, penetrating located at level of left costal arch, at its lateral side.
4. Stab wound, measuring about two inches, penetrating the thoracic cavity, located just below the right clavicle.
5. Stab wound, about one inch wide, penetrating, located at little anterior to the right axillary fossa.
6. Incised wound, measuring about 1/3 inch wide located at the left side of the thoracic vertebrae at the level of the 6th.
7. Incised wounds, located at the palmar surface of the fingers of the right and left hand.
(2) Pfc. Estercacias (sometimes spelled "Estercasio") Pimentel, Jr., who was the first police officer to arrive at the scene of the crime.
(3) Police Sgt. Felix Alonzo
(4) Pat. Tagumpay Mendoza
(5) Mrs. Conchita Sy Chua, younger sister of the victim
(6) Mrs. Benedicta Castillo Sy, and
(7) P/Sgt. Edgardo Tugbo.
On the other hand, testimonial evidence for the defense was given by six (6) persons:
(1) Pfc. Pimentel who was called back to the stand
(2) Accused Roberto Gerolaga
(3) Co-accused Efren Ativo
(4) Co-accused Remedios Ruado-Sy
(5) M/Sgt. Noli Cabug, and
(6) Emilio Sy, the victim's brother and husband of the accused Remedios R. Sy.
On December 28, 1988, the trial court  3 rendered a Decision finding the three defendants guilty beyond reasonable doubt of the crime
charged and imposing on each of them the penalty of reclusion perpetua and the payment in solidum of an indemnity in the amount of
P30,000.00 to the heirs of Antonio Sy without subsidiary imprisonment in case of insolvency.
The Facts
Thirty-one-year-old Antonio Sy was the youngest brother of Emilio, Arturo, Jose, Teddy, Anita, Teresita, Norma, Lourdes and Conchita
Sy. 4 Antonio was married to Benedicta Castillo. Childless, the couple lived apart from each other. Benedicta stayed in Cabangcalan,
Aroroy, Masbate where she was assigned as a teacher while Antonio lived with his eldest brother, Emilio and the latter's wife, Remedios
Ruado, who was also called Remy. While Benedicta claimed that Antonio was a businessman engaged in buying and selling men's and
ladies' wear for which he earned a net income of around P3,000 a month,  5 his brother Emilio and the latter's wife Remy swore that
Antonio was jobless and that he was dependent on them and given an allowance of P25.00 a day. Antonio had an insatiable hunger for
vices — gambling, illegal drugs, women. Hence, his allowance was always insufficient for his needs.  6
At around 6:00 o'clock in the morning of March 4, 1987, as Remy was arranging her merchandise in her store on the ground floor of her
residence in Aroroy, Masbate, a boy around fifteen years of age approached her, handed her a letter and then hurriedly left. As translated
by the court stenographer, the letter in Masbateño reads: 7
MARCH 4, 1987
COMMANDER
NPA HELEN LIPANTO
REMY:
(MEL)
WE WILL ASK HELP FROM YOU WORTH P3,000 PESOS WE WILL EXPECT IN TWO DAYS.
I AM ONLY ASKING YOU NO ONE MUST KNOW OR INFORM ANYBODY FOR IF IT HAPPENS MANY LIVES WILL BE LOST?
ESPECIALLY THE MILITARY. THEY WILL BE PITIFUL? AND WE WILL GET YOU IF YOU FAIL? THEN YOU PLACE THE MONEY
IN ENVELOPE IN YOUR GARBAGE CAN AT 9:00 AT NIGHT ON SATURDAY.
THANKS
GOD BLESS YOU = ALL
DON'T BE AFRAID (YOU) WILL NOT BE HURT IF YOU FOLLOW THE ORDER?  8
After reading the letter, Remy gave it to her husband. Emilio decided that (a) it should be presented secretly to the authorities for entry in
the police blotter, (b) their house should be guarded, and (c) the amount of P3,000 should be given to anyone who could apprehend
Helen Lepanto. 9
Accordingly, the couple called the police. When Pfc. Estercasio Pimentel, Jr. arrived, he was shown the letter. In the presence of Emilio,
Remy asked Pfc. Pimentel's help in having their house guarded and placing their premises under surveillance. She also asked him "to
apprehend and identify" Helen Lepanto and to bring the letter to the municipal building in order that it could be officially recorded in the
blotter.
Fear gripped the couple. Emilio asked Remy to tell their houseboy, Efren Ativo, to be vigilant especially at night and to arm himself with
a 2" x 2" piece of wood as a club or weapon. The couple closed their store at 6:00 p.m. instead of the usual 8:00 p.m. Upon her husband's
prodding, Remy set aside P3,000 in one-hundred-peso bills. 10 
Following the instructions in the aforesaid letter, Emilio instructed Remy to place the P3,000, which was in an envelope, inside the
garbage can at about 6:30 p.m. on March 6, 1987. Emilio told one of their sales-girls to inform Pfc. Pimentel that the money had been
placed in the garbage can and that he should guard it. However, the following day, Pfc. Pimentel returned the money to them with the
information that nobody went near the garbage can that night. Emilio then told Remy to verify this information with the station
commander. The latter confirmed that their surveillance yielded negative results. When Emilio was informed of this, he asked Remy to go
back to the station commander and to retrieve the letter in order that it could be machine-copied in Masbate.
Thus, Remy got back the letter on March 9, 1987, and proceeded to Masbate to have the letter machine-copied. She returned to Aroroy at
around 11:00 p.m. The following day, she met Sgt. Noly Cabug, a member of the 270th Philippine Constabulary Command in
Aroroy,11 who assured her that he would uncover the identity of Helen Lepanto. However, in spite of two days' sleuthing, the intelligence
personnel could not produce any result from their
surveillance. 12
While the Sy couple was officially informed that the police had no leads, the latter in fact harbored some suspicions. In the evening of
March 6, 1987, Pfc. Pimentel and Pat. Cadiz kept watch in the house across from the Sy residence while Patrolmen Maglente and Tugbo
secretly stationed themselves at a street corner near the Sy residence. At around 9:00 o'clock that evening, Pfc. Pimentel saw Antonio Sy
coming from the house of Benny Tuason. Just before entering the Sy residence, Antonio approached the garbage can and looked at it for
about five to ten seconds. He peered at the garbage can for two more times — at 9:30 p.m. and then at around 10:00 p.m. when the
electric light was switched off. The police stopped their surveillance at 2:00 a.m. but Antonio Sy did not return to the garbage can for the
fourth time. 13
When Pfc. Pimentel reported this to his chief on March 7, 1987, the latter concluded that Antonio Sy must have been "Commander Helen
Lepanto." But Pfc. Pimentel himself did not share the same belief otherwise he would have apprehended Antonio Sy the moment he went
near the trash can. That same day, when Pfc. Pimentel returned the P3,000.00 to Remy, he did not reveal to her the conversation he had
with his chief. 14
At 8:00 o'clock in the morning of March 15, 1987, another boy approached Remy in her store. The child conveyed the message that she
was to prepare the amount to P3,000 which "they" had not taken on the 6th of March, and to drop the money on the 20th. The boy
hastily left after warning Remy not to inform the authorities about this new arrangement. As before, Remy related to her husband what
had transpired. Emilio asked her to follow the new orders, but he insisted that, instead of placing the money in the garbage can, she
should give it to their houseboy, accused Efren Ativo, because he "slept in the kitchen". Emilio added that anyone who could "identify or
apprehend" Helen Lepanto should be given the money as a reward.  15
At around 4:00 o'clock in the afternoon of that same day, accused Roberto Gerolaga entered the store to buy a t-shirt and some "spare
parts." Having been Gerolaga's former employer, Remy felt free to tell him that she had received a "threat." She begged him to help
"apprehend or identify" Helen Lepanto.
Gerolaga told Remy that she was asking something dangerous because Lepanto might be a member of the NPA Sparrow Unit. However,
she managed to convince Gerolaga to help watch over their house. She intimated to him that whoever could "apprehend or identify"
Helen Lepanto, be he a PC soldier, a policeman or a civilian, would be given a P3,000 reward. Remy further informed Gerolaga that the
money would be placed in the garbage can on the 20th of March and hence, whoever would pick up the envelope in the said container
could be Helen Lepanto or his/her companions.  16
Gerolaga, a 25-year-old minibus conductor who was also known as Edgar,  17 testified that at around 7:00 o'clock in the evening of March
20, 1987, he went for a walk at the pier, drank beer for about an hour at a little store and then went to a street corner near the Sy
residence. Because he saw no one approach the garbage can, Gerolaga went back to the pier where there was a dance. He left the dance at
midnight and went back to the bus terminal. Thence, he returned to the corner to watch the Sy house.
It was then that he saw someone approach the garbage can. The man had a flashlight which he beamed at the container. Then, as the
stranger entered the gate of the Sy residence, Gerolaga followed silently. The person went to the well, fetched water and washed his feet.
From a distance of about three (3) meters, Gerolaga greeted him, "Good evening, Commander Helen Lepanto." Surprised, the man
turned his head and exclaimed, "Why do you know me?" Gerolaga retorted that he knew him very well — that he was Antonio Sy.
Immediately, Antonio pulled out a double-bladed knife and tried to stab Gerolaga but the latter evaded the thrust. He caught Antonio's
hand and held him in a bear hug. Antonio kept on shouting, "I will really kill you, I will really kill you." Sensing that Antonio was strong,
Gerolaga shouted for help. He twisted Antonio's hands and pushed the one holding the weapon upon Antonio's chest several times. When
Gerolaga felt Antonio weakening, he released him, and the latter fell on the ground face down.
Gerolaga pulled out the bladed weapon and walked towards the gate. It was there that he met Efren Ativo. The latter angrily demanded to
know what he was doing inside the premises. Gerolaga told him that he had already "identified" Helen Lepanto. Gerolaga asked Ativo for
the P3,000, but Ativo was incredulous. So Gerolaga led Ativo to the well near which Antonio lay dead. It was only then that Ativo went
inside the house, took the money and handed it to Gerolaga.
Gerolaga went to the bus terminal where he took off his bloodied shirt and pants and placed them together with the weapon in a plastic
bag. At 2:00 a.m., he boarded the San Agustin minibus which promptly departed. Arriving in Luy-a, Gerolaga entrusted the plastic bag to
a co-worker, Rafael Francisco, who alighted there, with instructions that the clothing in the bag should be washed by Francisco's
mother. 18
After Gerolaga left, Ativo, still trembling, closed the gate. At 5:00 o'clock that morning, he knocked "at the stairs near the door" of Remy's
room. He informed her, her husband and his sister Norma, that Antonio Sy was dead. Emilio instructed everyone not to touch the body
until the authorities arrived. Ativo summoned Pfc. Pimentel but did not tell him about Gerolaga's participation.  19
The police officer found the body of Antonio sprawled on the floor. The victim, lying about a meter away from the well, was still holding a
flashlight in one hand. Pfc. Pimentel examined the body to determine the number of wounds it sustained. Ten (10) meters from the body,
he found a scabbard.
The body of the victim was in a state of rigor mortis and inside a coffin when Dr. Emilio Quemi, medical specialist at the provincial
health office, arrived to conduct the post-mortem examination.  20In his report, 21 Dr. Quemi indicated that Antonio Sy sustained five (5)
 stab wounds in the epigastric region, above the navel, at the lateral side of the costal arch, below the right clavicle and the right axillary
fossa, and incised wounds at the left side of the thoracic vertebrae and at the "palmar surface of the fingers of the right and left hand(s)."
He established the cause of death as "shock due to massive external hemorrhage, caused by multiple wounds."
On March 23, 1987, the Aroroy police received information that Gerolaga had been looking for Antonio Sy at around 11:00 o'clock "on the
night of March 21 (sic)." 22 The police searched for Gerolaga and learned that he had hied off to Barangay Luy-a. Upon reaching that place
at 4:00 o'clock in the afternoon, the police were told that Gerolaga had proceeded to Crossing, Mandaon, where he was finally
apprehended by Pat. Maglente.
At the police station, the authorities learned from Gerolaga that the double-bladed weapon used in the assault was in the possession of
Juanita Amaro, mother of Rafael Francisco. Juanita Amaro subsequently turned over the 8-inch long weapon as well as the pants and
shirt of Gerolaga to Pat. Edgardo Tugbo and Pat. Mendoza. 23
Gerolaga was investigated by Sgt. Felix Alonzo. He readily admitted killing Antonio Sy, and also implicated Mrs. Remedios Ruado-Sy,
saying that she gave him through Efren Ativo the P3,000 after he killed Antonio Sy. However, Gerolaga surrendered only P600  24 to Sgt.
Alonzo as the rest of the money had been spent.  25
Before taking Gerolaga's statement, 26 Sgt. Alonzo informed him of his constitutional rights to counsel and against self-incrimination.
However, Gerolaga told him that he did not as yet need a lawyer. The statement he made was signed in the presence of his mother
Encarnacion Letada Gerolaga and his cousin Ermila Gerolaga Manlangit, who affixed their thumbmark and signature, respectively, on
the certification appended to the statement.  27
Also on March 23, 1987, at around 8:00 o'clock in the morning, a fifteen-year-old boy approached Remy in her store. They boy told her
that their "head" had ordered that Remy should write a letter to her in-laws "admitting the killing" of Antonio Sy. Remy protested, telling
the boy that it was her husband's idea that the P3,000 be given to whoever could "apprehend and identify" Helen Lepanto, but the boy
left immediately. Distraught, Remy told her husband about the boy's message. Enraged, Emilio asked whether she caused the killing of
his brother. Remy denied the accusation and reminded Emilio of their agreement to "find ways to identify" Helen Lepanto and to give the
P3,000 to whoever could identify him.
Emilio ordered her to prepare the letter and to follow the instructions of the NPA as it was the only way by which their entire family could
be spared. Remy went upstairs, prepared the letter and showed it to her husband. The boy came for the letter at 4:00 p.m. of the same
day.
At 5:30 p.m., the boy was back. He told Remy that their head was "not convinced" by her short letter and that she should make it longer.
She should also include the letter of Helen Lepanto and "state what had happened in our family." The boy warned her once again that she
should not report to the authorities and that, should be refuse to follow their instructions, "they" would "get" her and her family.
Again Remy relayed the instructions to her husband. Emilio, expressing pity for her, told her to follow the NPA instructions, reiterating
that this was the only way to save the family. She went upstairs and prepared the letter on three sheets of yellow pad paper written back-
to-back. 28 As translated by the court interpreter, it reads:
March 24, 1987
Dear Teresing, Tuache, Ting, Long,
I write you this letter, because I want you to know the truth of Tony's death. You know, on March 4, Tony sent me a letter. Here
you may read, because he planned to kill me. Good, he was able to tell that to my "Comadre" that during the Juniors Ball of
Chong (daughter of Remy) he would stab me. If luck was against me I should have been the object of your vigil instead of him. I
have been asking help from "Sto. Niño" to save me because I have still many obligations yet to my children. I prayed to God that
if I am wrong, He should punish me, but if he is wrong, he should be punished instead.
You know this fellow was used to "Barkadas", gambling, disco and he had also a girlfriend in Joan's. He was always worried on
how to acquire a large amount of money because of his vices, such was the reason why I prepared myself to kill or be killed, I
told him that if my life was what he was after, it was up to him to find out who would reach the base first(.) I told your "Manoy"
to settle this case before we repent it. Well in the afternoon of that day Tony and Baby had an altercation in connection with the
construction of his house because he did not agree to give 1 meter allowance to his elder brother's piece of lot. But I told them,
"It's up to you." Then Baby said, "Mama, get Tony because this is again a big problem. Manoy, I have prayed to all the Gods in
order that Tony should reform, but there was no good result." I told Norma, you have given him P50,00. He would go to the
disco house, he might be stabbed there thus all his problems will be finished. The thorns in your heart will also be pulled. So,
God heard our prayer. He met an adversary.
The truth is that last March 4, Tony wrote me a letter, that a person who was working under me before, would come here to buy
spare parts. I did not know why I was able to tell Edgar that I had a problem because I received a letter from the NPA
Commander, Helen Lepanto. I let him read the letter. "Sus, Manay Remy, this letter is asking for the amount of P3,000.00, I'm
going to put that person down." "Yes", I answered, "because anyway I am going to be killed is a matter of who will be the first
(sic). "My bayaw" was the one who sent this to me," said I. "Sus, its difficult, because he is like a snake, a dangerous one. What
do you say? Aba, Manay Remy, what a pity on you! You are like a cock who is induced to fight but has no chance to win." So, he
sided with me and killed Tony. When he came from the disco house, I handed to him the reward of P3,000.0 in order that he
would not be angry with me. So, it appears that I am the mastermind, but it was only a matter of who got ahead if it was a game.
Thanks
You know, Tony had many plans. He wanted to kill Baby. He wanted to kill Doctor, because according to him, he is the one
keeping the papers. Baby, he said, is tight handed when it comes to money. He got angry with me, because when I gave him his
P20.00 allowance, he wanted P50.00 and later on P100.00. I told him, "Tony, Baby might be angry with me, because you are
given the amount more than you are allowed," The following morning, I gave him P300.00 and I said, "This is the last time that
I will give you. You ask from my other in-laws (brother and sisters of Tony). As for me, I don't like to give you anymore." Aba, by
March 4, there was a letter that I would be kidnapped and somebody was told that I would be killed before the end of March. I
was determined then to kill or be killed for your own good, for my children's good, and mine. I have many problems yet for my
children, that is why I choose to finish him for he had no problems yet but make trouble to me and to all of us. It is said that
Teresing's worries may last until her death. So, all of us have threats. We are all in a pitiful situation.
Understand me. I'm writing you this so that you will know.
Thanks
Remy T. Ruado
Even if your younger brother was like a snake in your family, I did not do anything because he is your blood, I am a different
person. Ruado, you know. But when it come to service I did my best. I sent for Teresing in order to explain to each an(d) every
one of you, but you did not like because you are only thinking of what I have done. You know, what Tony said, that he would kill
me before the end of March. We competed only as to who would reach the base first.
Here is his letter on March 4.
NPA
Commander Helen
Lepanto
Remy:
Mil:
We are asking from you as a help for us the amount of P3,000.00. You send it within two days.
I want you not to reveal this to anybody or else many lives will be lost especially the military. It would be a pity to them and we
will get you if you can not produce this. Then you put the money inside an envelope and placed it in a trash container, at 9:00
o'clock on Saturday night.
Salamat,
God bless you all.
Don't be afraid. You will not be hurt if you follow my order.
This is the letter that was sent in duplicate.
I have no ill-feeling if you want me to be imprisoned (sic). Just okey. If you accuse me, just okey also. I'll face you in the
government in whatever action you may take against me. I'm alone, but I think God will not forsake me. But I tell you that I am
 like this, because I have given you too much pity. In truth, Tony has brothers and sisters, but you did not do anything to correct
his mistake, grave or not. Like when he held up your elder brother. You kept that in secret for he is your blood your surname and
you will be put in shame. Now, it's too late to repent, because he was able to meet somebody to stop his wrong deeds.
I enclosed you in my two arms. Even if you will not be asked, something is loosen in your hearts, beginning now. I know that you
have an ill-feeling against me, but if it were in your place, you would find out a remedy.
God will judge us all and God knows how much I loved Tony. Even when Pa had a letter and telegram not to allow him in the
house, I still admitted him, because I took pity on him. But at the end, I was still bad. Well, my brothers and sisters I hope you
understood me already. We just played chess and I won. To all of you, forgive me. Okey, if you don't want to see me, God is
responsible to all of you.
Thanks
Sister-in-law29
After reading the letter, Emilio asked Remy to give it to his younger sisters. Remy prepared an envelope and was about to deliver it to her
sisters-in-law when, at 9:00 a.m., another unnamed boy came back, asking for the letter. He returned it to Remy at 10:00 a.m. with the
information that his chief considered the letter to be "alright". Emilio then ordered their daughter Haydee to deliver the letter to his
sisters. 30
In the afternoon of March 24, 1987, as Remy and others were going over the personal belongings of Antonio Sy which, in accordance with
Chinese traditions and belief, should be burned during his burial, they found a wallet. Inside it was a letter to a Miss Mecenario which
was written in the same handwriting as the letter sent to Remy by "Helen Lepanto". From Gerolaga's revelation and this letter, Remy
concluded that Helen Lepanto was none other than Antonio Sy.  31
As earlier stated, the trial court convicted the defendants-appellants of murder. It discredited Gerolaga's claim of self-defense, hold that
Antonio Sy "was found dead by the police authorities sprawled face upward a meter from the well holding a flashlight in his right
hand."32 To the trial court, such fact belied Gerolaga's claim of self-defense because Antonio Sy could not have pulled the dagger from its
scabbard with his right hand holding the flashlight. The scabbard was found ten (10) meters away from the body of the victim and not
tucked into his waist or near his body, which would have been the case if the weapon indeed belonged to the victim. Moreover, the court
opined that Antonio Sy, a Chinese businessman, could not have kept a "locally made dagger and scabbard."
The trial court also faulted Gerolaga for not surrendering to the authorities immediately. Furthermore, his plea of self-defense "does not
square with the commission of the crime induced by reward or prize."  33
In holding that the three defendants conspired in the killing of Antonio Sy, the trial court indicted Remy for providing the monetary
reward which Ativo delivered to Gerolaga, the actual assailant. The trial court was convinced of Remy's culpability by the tenor of the
letter she wrote admitting participation in the crime. As to Ativo, the court a quo emphasized his failure to report the incident
immediately to his employers and to the police authorities.
The defendants filed a motion for new trial on the ground of newly discovered evidence.  34 They wanted to present on the witness stand
one Frankie Escarlan, Jr. who allegedly witnessed the killing of Antonio Sy. On May 19, 1989, the trial court denied the motion on the
ground that the claimed newly discovered evidence would be merely corroborative of Gerolaga's self-defense.  35 Hence, the instant
appeal.
The Issues
In their well-presented and convincing brief consisting of 166 pages, appellants specified the following alleged errors of the trial court:  36
(1) The trial court erred by, in, and for, rejecting the valid and clearly tenable claim of self-defense, and thus, and with patent partiality, it
erroneously rendered its judgment convicting all of the accused in this case, despite the insufficiency of the evidence for the purpose;
(2) The trial court erred by, in, and for, finding and ruling that conspiracy obtains in this case, without clear and sufficient factual and
legal basis, and thus, with manifest bias and in grave error, it held all of the accused criminally liable as co-principals; on the contrary,
upon the entire and purely admissible evidence, the applicable laws and jurisprudence on the matter, conspiracy does not lie in the case
at bar;
(3) The trial court erred by, in, and for, not finding and ruling that each, and all of the accused acted without freedom, then being under
the impulse of an uncontrollable fear of an equal or greater injury, in their case, respectively, or probable death;
(4) The trial court erred by, in, and for, not finding and ruling that accused Efren Ativo, more so, Remedios Ruado-Sy, acted in obedience
to lawful orders for some lawful purpose in this case at bar;
(5) The trial court erred, consequently, in its decision by, in, and for, having convicted all the accused for murder through conspiracy, or
by, in, and for, not having acquitted all of the accused herein, upon the ground of reasonable doubt, it having failed or refused to consider
exclusively, only the purely admissible factual and more credible circumstantial evidence obtaining in this case, and to observe with
liberality, consistent with the proper dispensation of criminal or penal justice, the law, jurisprudence, and the fundamental precepts, as
are applicable to, or in the case at bar.
In fine, the issues could be condensed into three :
(1) Is Gerolaga's theory of self-defense sufficient, credible and valid?
(2) If not, was the crime committed murder or homicide? More specifically, were evident premeditation, treachery and/or price and
reward amply proven by the prosecution?
(3) Are appellants Remedios Ruado-Sy and Efren Ativo, who were unquestionably absent from the crime scene, equally as guilty as
appellant Roberto Gerolaga who while admitting the killing of the victim proffers self-defense as a justifying circumstances?
The Court's Ruling
First Issue: Gerolaga's Theory of Self-Defense
At the outset, it should be pointed out that the prosecution did not (could not?) present any eyewitnesses to the crime. The circumstances
prior to and those obtaining during the actual commission of the felony were established mostly by the defense. This happened because
of appellants' theory that the killing was justified by self-defense. As such, the resolution of this case hinges to a large extent on the
credibility of the appellant's witnesses. However, while the determination of the issue of credibility has always depended on trial courts
and appellate courts are, as a rule, bound by such findings, we realize that in the present case, the conviction of the accused was based on
pure circumstantial evidence and on an uncounselled confession of guilt. On account thereof, we were constrained to pore over the
evidence, and arrived at the conclusion that the trial court misapprehended critical bits of evidence and circumstances which when
considered correctly leads to a modification of the judgment of conviction. We thus emphasize the need for all courts to scrutinize every
bit of evidence with meticulous care and analyze each case with deliberate precision and thoroughness to spare the innocent and/or
mitigate the penalty of the guilty.
With the foregoing caveat, we shall first pass upon appellant Gerolaga's theory of self-defense. When such defense is invoked, the burden
of evidence shifts to the accused. He must rely on the strength of his own evidence and not on the weakness of the prosecution's. Even if
the latter were weak, it could not be disbelieved after his open admission of responsibility for the killing. 37
In the present case, it was duly proven that Gerolaga was unarmed when he entered the Sy residence to confront the victim.  38 It was also
clearly established, through Emilio Sy, that Antonio owned the double-bladed knife, its scabbard and the flashlight found at the crime
scene. 39 Because Gerolaga surprised Antonio by disclosing the latter's sobriquet as he was washing his feet, and because such disclosure
came from an intruder in the Sy residence, it is indeed not improbable that Antonio initially attacked Gerolaga.
However, to appreciate self-defense in favor of an accused, the following requisites must be concurrently and clearly proven: (1) unlawful
aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it, and (3) lack of sufficient
provocation on the part of the person defending himself.  40 In this case, even if the first and third requisites were to be appreciated in
favor of appellant Gerolaga, the second requisite had not been met. There was no reasonable necessity to inflict upon Antonio Sy
numerous wounds, five of them fatal.  41 Because Gerolaga himself was unscathed, the wounds sustained by Antonio Sy certainly negates
the former's claim of self-defense. 42Moreover, the justifying circumstance of self-defense may not survive in the face of Gerolaga's flight
from the crime scene, his concealment of the weapon and his failure to inform the authorities of the incident.  43
Second Issue: Murder or Homicide?
The sole key to appellant Gerolaga's exoneration having been disposed off, appellants' exact criminal responsibility must now be
determined.
As defined by Art. 248 of the Revised Penal Code, murder is the crime committed by a person who kills another "in consideration of a
price, reward, or promise." Said qualifying circumstance of price or reward equally affects both the offeror and the offeree  44 — the former
becomes a principal by inducement and the latter, a principal by direct participation.
In this case, the prosecution attempted to establish that Gerolaga killed Antonio Sy for the reward. In his brief, the Solicitor General even
quoted the following portion of Gerolaga's testimony to support the theory:
Q And when you said that you are going to help, the help that you are going to do is to kill Helen Lepanto?
A Yes, sir.
Q And it was also your desire to kill Commander Helen Lepanto because you will received ( sic) the Three
thousand (P3,000.00) pesos, is it not?
A Yes, sir. 45
However, that portion of Gerolaga's testimony should have been considered in the context of his entire testimony as well as all the pieces
of evidence presented at the trial, in the same manner that it should have been considered under the basic principle in criminal law that
all doubts shall be resolved in favor of the accused. Gerolaga knew the purpose for which Remy and her husband offered the P3,000.00
reward. Thus, after testifying that he expressed to Remy his fears about looking for and identifying NPA Commander Helen Lepanto as
the latter might be a member of the dreaded Sparrow Unit, Gerolaga said:
Q So what did Remedios Ruado say if she said anything?
A Mrs. Ruado answered that she must be helped because this amount asked by NPA will be given to whoever
who (sic) can apprehend that Helen Lepanto. (Emphasis supplied) 46
Pressed by the prosecution to admit that he "desired" to kill Commander Helen Lepanto for the reward of P3,000, appellant Gerolaga
demurred as follows:
Q When you entered the gate following that person, you were thinking that the person you were following was
Commander Helen Lepanto? Is that what you want the Court to understand?
A Yes, sir.
Q And in following him with the intention of killing, you want to tell us that you do not have any weapon?
A I have no intention to kill him.  What I have in mind is to recognize him and identify him and to report to
the policemen.
ATTY. BRAVO (continuing)
Q You mean you were not afraid to follow up (sic) Commander Helen Lepanto whom you believe to be a
member of the NPA when your intention is to kill him and that Helen Lepanto is armed?
A What I wanted during that night is that to identify and recognize him because I had knew (sic) him I will
(sic) not do harm to him because we were friends. 47(Emphasis supplied.)
Appellant Gerolaga then proceeded to narrate that it was only when "Commander Helen Lepanto" spoke that, by his voice, he recognized
the stranger to be Antonio Sy, his friend. But because Antonio Sy immediately lunged at him with a knife, appellant Gerolaga responded
accordingly.
We are thus faced with a situation where self-defense is discredited because of the number of wounds inflicted upon the victim. However,
there are several circumstances, proven by the defense and unrebutted by the prosecution, indicating that Gerolaga intended only  to
identify and recognize, and not to kill, the victim. These circumstances include appellant Gerolaga's entering the Sy
residence unarmed and the reflex action of Antonio Sy in lunging at the appellant on account of his unexpected detection and
identification. In such a situation, the law tilts the scales of justice in favor of the perpetrator of the offense.  48 Consequently, because
appellant Gerolaga had been impelled by the prospect of a monetary reward merely for identifying the source of the Sy couple's woes, he
may not, in the same breath, be deemed as having intended to kill Antonio Sy for a price. He killed Antonio Sy in reaction — albeit
extreme — to the violent attack launched by the deceased. The qualifying circumstance of price or reward in regard appellant Gerolaga
may not, therefore, be counted against him.
In view of the absence of proof beyond reasonable doubt showing the evident premeditation and treachery alleged in the Information but
considering his owning up to the killing of the victim, appellant Gerolaga may be held liable only for the crime of homicide, not for
murder as charged.
The qualifying circumstance of price or reward may not likewise be appreciated against appellants Ruado-Sy and Ativo. Both testified
that the money was meant to encourage people to "identify and apprehend" Commander Helen Lepanto. Even Emilio Sy, who was
allowed to testify after his defendant wife had granted permission, 49 swore that his wife did not entertain any idea of killing Commander
Helen Lepanto. She asked only for the latter's "identification and apprehension."  50 Such fact was buttressed by Pfc. Pimentel who, after
the police had formed the surveillance team, returned to Remy to ask what police services she needed. He testified as to the conversation
that transpired:
Q What did Mrs. Ruado answer to that?
A Mrs. Ruado said that she will cooperate and she told us that whoever among us could apprehend Lepanto
that Three Thousand (P3,000.00) pesos she (sic) asked will be given to us as a consideration for our
services. 51
Money offered or paid by anyone as a "sort of an expression of . . . appreciation of sympathy or aid (gratification)," may not be
considered as a recompense for participation in a crime.  52 In the face of the prosecution's relentless effort to discredit her testimony
during the trial, appellant Ruado-Sy tenaciously stuck to her repeated statement that, in line with her husband's idea, she intended the
P3,000.00 to be a reward for whoever could "identify and apprehend" Commander Helen Lepanto. That no criminal intent may be
ascribed to her in setting aside the P3,000.00 as reward is supported by the fact that appellant Ruado-Sy immediately referred the letter
of Commander Helen Lepanto to the police authorities and even offered them the same amount as a recompense for the identification
and apprehension of the author of the letter.
Third Issue: Culpability of Ruado-Sy and Ativo
Neither may appellants Ruado-Sy and Ativo be held criminally liable on the basis of appellant Gerolaga's sworn statement implicating his
co-accused in the crime, as it was executed without the assistance of counsel. The right to counsel has been constitutionalized to curb
duress and other undue influence in extracting confessions from a suspect in a crime.  53 In accordance with the provisions of Sec. 12(1) of
the 1987 Constitution, a waiver of the right to counsel must be in writing and executed in the presence of counsel.  54Indeed, any waiver of
the right to counsel without the assistance of counsel has no evidentiary value.  55 Hence, appellant Gerolaga's waiver of the same right,
even if executed in the presence of his mother and cousin, is void and has no legal effect.
The trial court's reliance on appellant Ruado-Sy's letter of March 24, 1987 as a basis for her conviction is misplaced. A reading of the
letter be-speaks of no more than the rambling thoughts of a clearly apprehensive wife. That she admitted she was ready to "kill and be
killed" may not be considered as an accurate gauge of the existence of any criminal intent on her part. The letter was written under
understandably overpowering anxiety and apprehension on account of her possible liability for the death of Antonio Sy, her in-laws'
anger at her and her fear of reprisal from them, and her failure to neutralize the NPA threat. Also, as correctly pointed out by the Solicitor
General, 56 it was written three days after the crime had been committed when appellant Ruado-Sy already had more than an inkling as
to the true identity of Commander Helen Lepanto. Furthermore, her claim that it was returned to her in order that she could lengthen the
letter is buttressed by its format. Appellant Ruado-Sy's signature appears in the middle of the letter and, in accordance with the directive
given her through the boy-messenger, she incorporated the contents of the March 4, 1987 letter of Commander Helen Lepanto.
It is immaterial that the order to write the letter was coursed through a boy in his mid-teens. Under the circumstances, appellant Ruado-
Sy could not be expected to (and would have been foolhardy to) subdue the boy or to cause his apprehension. We take judicial notice of
that fact that in rural areas, gullible young people are conscripted in the commission of crimes by lawless elements who, taking advantage
of the fear generated by the "swift justice" allegedly rendered by members of the New People's Army upon those who refuse to do its
bidding, use the name of said organization to attain their malevolent purposes, even if they may not really be members thereof. While it
has not been clearly established that Antonio Sy was indeed a member of the NPA, or that he was merely out to collect more money from
his own relatives, appellant Ruado-Sy's actions subsequent to her receipt of the letter from "Commander Helen Lepanto" showed that she
was in fact in the grip of fear and a sense of helplessness throughout that time, and therefore, we can only conclude that in all probability,
she was psychologically and mentally unbalanced, and not in complete control of her free will, when she wrote the letter of March 24,
1987.
 Anent appellant Ativo, it is not uncommon for houseboys like him to follow their master's orders unquestioningly and quite literally. No
criminal intent was proven or could be attributed to him for his act of delivering the "reward" to appellant Gerolaga. His failure to report
immediately the death of Antonio Sy to his own employers and to the police is explained by the fact that after he discovered that Antonio
Sy was killed and Gerolaga demanded the amount of P3,000 from him, he, too, was consumed by fear that Gerolaga might kill him.  57
If at all, appellants Ruado-Sy and Ativo may be held criminally liable only under the conspiracy theory where the act of one may be
imputed to all the conspirators.  58 Conspiracy, considering the secrecy by which it is usually hatched, may be established by a chain of
circumstances only. 59 However, like the physical acts constituting the crime itself, it must be established by proof beyond reasonable
doubt. 60
In the present case, the prosecution attempted to establish conspiracy by showing that the "reward" of P3,000 was financed by appellant
Ruado-Sy and that appellant Ativo delivered the amount to the killer. However, considering the unrebutted testimony of appellant
Ruado-Sy that, with the approval of her husband, she set aside the P3,000 as a reward for the identification and apprehension of
Commander Lepanto and the fact that Ativo merely obeyed the order of his employers to deliver the amount to whoever could identify
and apprehend said NPA commander, no criminal intent to kill Antonio Sy could be attributed to him. Moreover, as earlier discussed, it
was not indubitably proven that appellant Gerolaga intended to kill Commander Lepanto and/or Antonio Sy for a price. Hence, no
community of criminal design may be attributed to them. As "there is not other evidence to prove conspiracy except the affidavit of
confession" (which is inadmissible in evidence), even the Solicitor General admitted that the "lower court erred" in finding the existence
of conspiracy.
In view of the foregoing, appellant Gerolaga's criminal liability is individual and separate. He shall be liable only for homicide, not
murder, as no qualifying circumstances have been proven beyond reasonable doubt. Because no mitigating or aggravating circumstances
attended the killing, he shall be meted the medium period of the penalty of reclusion temporal. 61 By the application of the Indeterminate
Sentence Law, he shall suffer ten (10) years of prision mayor medium as minimum penalty to seventeen (17) years and four (4) months
of reclusion temporal medium as maximum penalty. Pursuant to current jurisprudence, he shall indemnify the heirs of Antonio Sy in the
amount of fifty thousand pesos (P50.00).
WHEREFORE, the appeal is partially GRANTED. Appellants Remedios Ruado-Sy and Efren Ativo are hereby ACQUITTED and are
hereby ordered RELEASED immediately, unless they are being detained for some other legal cause. Appellant Roberto Gerolaga is found
GUILTY beyond reasonable doubt of the crime of homicide for which he is hereby IMPOSED the indeterminate penalty of ten (10) years
of prision mayor to seventeen (17) years and four (4) months of reclusion temporal and ORDERED to indemnify the heirs of the victim,
Antonio Sy, in the amount of P50,000.00. No pronouncement as to costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
EN BANC
G.R. No. 128114             October 25, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
ROGER CANDO Y PAGDANGANAN, ARNEL VARGAS Y MAGTANGOB, AND WILBERTO RAPCING Y BROÑOLA, accused-
appellants.
QUISUMBING, J.:
On automatic review is the decision of the Regional Trial Court of Manila, Branch 33, in Criminal Case No. 95-142748, convicting appellants of the
crime of robbery with homicide, sentencing them to death, ordering them solidarily to indemnify the heirs of the victim the amount of
P50,000.00, and to return the personal belongings taken from the victim and other offended parties. In a related case, Criminal Case No. 95-
142749, appellants were acquitted of the charge of carnapping.
Appellants Cando and Rapcing, aged 40 and 28 respectively, were employed as candlemakers at the Rosarian Candle Factory located in Paco,
Manila. Appellant Vargas, aged 20, was employed as a delivery boy. The victim, Luis D. Remoriata, was the caretaker ("katiwala") in said factory.
The facts based on the records are as follows:
In the afternoon of May 13, 1995, Vargas, Rapcing and one Nonoy Sayson were having a drinking session at a canteen in front of the factory. At
around 9:30 P.M., Cando joined the group. Upon the prompting of Vargas, Cando went to the factory to get his salary. Cando came back angry
because he was unable to get his salary from the secretary, nor was he able to get a loan of P100.00 from the caretaker. Apparently, Cando already
had previous misunderstandings with the caretaker, so this time, he threatened to kill the caretaker. The group continued their drinking session. 1
At around 11:00 P.M., Vargas, Rapcing, and Cando, armed with two knives and carrying a shoulder bag, climbed the fence of the factory. They
walked on the galvanized iron roof towards the other building. One by one, they slipped through a narrow window at the side of the building. The
trio proceeded to the victim's room, which was lighted by a fluorescent lamp. Cando picked a piece of lead pipe and told Vargas to pull open the
door where the victim's mosquito net was attached. When Vargas pulled open the door, the mosquito net snapped and Cando struck the victim on
the head with the lead pipe. The victim awakened and Cando demanded money from him. When the victim replied that he had no money, Cando
struck him again with the lead pipe. Blood oozed from the victim's head. Cando asked the victim if he recognized him. The victim weakly replied
"Yes, You are Roger (Cando)." Thereafter, Cando repeatedly hit him with the lead pipe until he became unconscious. Cando placed the victim's
radio cassette in his bag. He went upstairs to get more items and the keys of the Cimarron van. Thereafter, the trio went downstairs to where the
van was parked. Vargas, the only one who knew how to drive, sat on the driver's seat. Cando and Rapcing opened the gate, then pushed the van
outside. Once they were out of hearing range, Vargas gunned the motor and the two clambered into the van. Cando sat on the passenger side while
Rapcing sat at the back. Cando prevailed upon the group to proceed to Quiapo to visit his girlfriend, but they could not locate her so they just
drove around until daybreak. When they reached Hemady Street in Quezon City, they abandoned the van. The trio boarded a jeep going to Taft
Avenue and went their separate ways. 2 It was then already early morning of May 14, 1995.
At around 6:00 A.M., Mrs. Norma Chu, the factory owner, discovered the dead body of Luis Remoriata. The factory van was also missing. A
hysterical Mrs. Chu called the Barangay Captain, who in turn reported the incident to the police. Upon investigation, the police found a bakawan
firewood stained with blood some ten meters away from the victim's body. The police also called a funeral parlor to get the body of the victim. 3
In the meantime, the van was discovered by Barangay Kagawad Mejia, who called up the telephone number posted at the side of the van. The
owner, Mrs. Chu, arrived with three NBI Agents who took pictures of the van and lifted fingerprints from it. 4
The very next day, May 15, 1995, Mrs. Chu lodged a complaint 5 with the National Bureau of Investigation (NBI). Based on her complaint, the NBI
dispatched a team of agents to the crime scene. The NBI recovered a bloodstained steel pipe behind the door of the room. Upon learning from
Mrs. Chu that appellants Cando and Vargas had previous skirmishes with the victim, on May 16, 1995, the NBI agents picked up Vargas from the
factory and brought him to their office for questioning. 6
Vargas readily admitted his participation and pinpointed appellants Cando and Rapcing as his co-perpetrators. He likewise executed an
extrajudicial admission7 and waiver of his rights under Articles 124 and 125 of the Revised Penal Code. 8
Acting on the lead, the NBI agents picked appellant Cando at his house in Libis St., Caloocan City. Appellant Cando invoked his right to remain
silent.9 He executed a waiver of rights under Articles 124 and 125 of the Revised Penal Code. 10
Thereafter, appellant Rapcing was also arrested at his house in Cristobal St., Looban, Paco, Manila. 11 Rapcing admitted complicity in the crime,
and executed an extrajudicial admission12 corroborating the story of Vargas. He also executed a waiver of his rights under Articles 124 and 125 of
the Revised Penal Code.13
During custodial investigation, the three were assisted by Atty. Isidro T. Gamutan, a lawyer who happened to be at the NBI because he was
following up a case.
On May 17, 1995, appellant Vargas executed a second extrajudicial admission 14 stating that Cando gave him the bag containing the stolen items for
safekeeping and that he brought the bag to his sister-in-law's house in Kahilum, San Andres Bukid, Manila. He accompanied the NBI agents to the
house and gave them the bag which bore Cando's name.15
On May 23, 1995, appellants were charged with the crime of Robbery with Homicide under the following Information: 16
"The undersigned accuses ROGER CANDO y PAGDANGANAN, ARNEL VARGAS y MAGTANGOB and WILFREDO RAPCING y
BROÑOLA of the crime of Robbery with Homicide, committed as follows;
That on or about May 13, 1995, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping one
another, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation, to
 wit: by hitting one LUIS D. REMORIATA with steel pipe and wood on the head several times and at the same time forcibly taking away
from him the following, to wit:
One (1) Brown wallet valued at P 120.00

containing cash money of 1,000.00

Cash money in the amount of 10,000.00

Three (3) wrist watches, all valued 1,000.00

One (1) Radio cassette (STD) 1,200.00

Assorted clothing, not less than 500.00

or in the total amount of P13,820.00 belonging to said Luis D. Remoriata and under his personal care, to the damage and prejudice of the
said owner in the aforesaid amount of P13,820.00, Philippine Currency; that on the occasion of the said robbery and by reason thereof,
the herein accused, in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack,
assault and use personal violence upon the said LUIS D. REMORIATA, and as a result thereof, he sustained physical injuries which were
the direct and immediate cause of his death.
Contrary to law.
ALEJANDRO G. BIJASA
Asst. City Prosecutor"
On August 29, 1995, upon arraignment, appellants entered their respective pleas of not guilty. 17 Joint trial ensued.
The prosecution presented the following witnesses: (1) Norma C. Chu, the factory owner; (2) NBI Agents Serafin Gil, Mario Garcia, Gregorio
Tomagan; (3) NBI Photographer Cecilio Datinguinoo; (4) NBI Fingerprint Examiner Elter Yano; (5) Dr. Manuel Lagonera, medico-legal officer;
(6) Atty. Isidro Gamutan, counsel of appellants during custodial investigation; (7) Barangay Kagawad Alejandro Mejia.
Mrs. Norma Chu testified that when she discovered the body of the victim, the quarters was in disarray, and the victim's clothes and radio were
missing. Later, her husband and son informed her that their wallets which they placed on top of the TV in the sala upstairs, and two other
wristwatches were missing. She also identified the van which was recovered from Hemady St. in Quezon City as the one belonging to the factory. 18
Serafin Gil testified that he took down the statement of Mrs. Chu and supervised the custodial investigation of appellants. 19 Mario Garcia took
down the statements of Vargas and Rapcing. 20 Gregorio Tomagan testified that he was present during the taking of the two statements of appellant
Vargas dated May 16 and 17, 1995.21 Cecilio Datinguinoo testified that he took pictures of the van while the NBI agents were lifting fingerprints
from the van.22Elter Yano testified that he managed to lift six (6) fingerprints from the cimarron van, tagged as "Q-1" to "Q-6". He testified that "Q-
1" which was lifted from the air freshener found in the van was identical to the left index fingerprint of appellant Vargas (Exh. "DD"). Likewise, "Q-
2" which was lifted from the victim's stereo cassette was identical to the right ring fingerprint of Cando (Exh. "EE"). The other prints were
unidentifiable.23
Dr. Manuel Lagonera testified that the cause of death was "blunt head injuries" and that the victim sustained the following injuries: 24
"1. Triangular lacerated wound, with contusions at the periphery, measuring 3x2. 8x2.5 cms, right forehead.
2. Deep lacerated wound, right forehead, above the right eyebrow, measuring 7x1.9 cms.
3. Lacerated wound, right zygomatic region, measuring 4.2x1.5 cms.
4. Deep lacerated wound, left frontal region, measuring 7x2.5cms.
5. Lacerated wound, left fronto-temporal region, measuring 2.5x2 cms.
6. Deep lacerated wound, angle of the mouth, right, measuring 4.5x2 cms.
7. Hematoma, both upper eyelids.
8. Deep lacerated wound, vertex, measuring 9x3 cms.
9. Lacerated wound, left occipital region, measuring 7x3 cms.
10. V-shaped lacerated wound, right external ear, measuring 3x2.5 cms.
11. Abrasion, right anterior shoulder, measuring 4x1.8 cms.
12. Semi-circular contusion, right supra-clavicular region, measuring 3.5x3.2 cms.
INTERNAL FINDINGS:
1. There was extensive sub-aponeurotic hematoma with multiple fractures of the cranial vault. Epidural hematoma over the left parietal
lobe of the brain with massive sub-arachnoid hemorrhage.
2. Right anterior and middle cranial fossae were fractured.
3. The stomach was empty."
Atty. Isidro T. Gamutan testified that he happened to be at the NBI when the three accused were scheduled for custodial investigation. The Chief
of the Anti-Carnapping Unit requested him to give legal assistance to the three accused. He asked the accused why they were being investigated,
and explained to them their rights. When he was satisfied that the accused understood their rights, he assisted them in executing their
extrajudicial statements.25
Alejandro Mejia, Barangay Kagawad at Barangay Kristong Hari, Quezon City testified that he found the abandoned van with a flat tire. He
contacted the owner through the telephone number printed on the side of the van. The owner arrived with three NBI agents who examined the
van.26
For the defense, appellants testified. Appellant Cando stated that he finished Grade III, cannot read, but can write his name. He denied any
participation in the killing, but claimed that Vargas and Rapcing knew about the incident. He said that on May 13, 1995, he reported for work at
the factory at 2:00 P.M. until 10:00 P.M. He went home in Libis St. Caloocan City, where he slept until around 11:00 A.M. the following day. He
denied joining the drinking session. On May 14, 1995, he reported for work at around 12:00 NN until 2:00 P.M.. He identified as his the bag
containing the stolen items. He further identified the contents of the bags, the air freshener which was taken from the van, the two wristwatches
belonging to the son and daughter of Mrs. Chu. He admitted that he and the other two appellants offered to pay to the widow of the victim
damages for his death.27
Appellant Vargas, for his part, admitted participation in the killing, but claimed that he was forced by Cando at knife point to participate. He
further claimed that it was only Cando who killed the victim by hitting him with an iron bar. He admitted, however, that he agreed to drive the
Cimarron because he wanted to practice driving. 28
Appellant Rapcing recanted his extrajudicial admission. He denied any knowledge or participation in the killing since he was stone drunk ("lasing
na lasing"). He claimed that he just slept inside a Tamaraw pick-up parked outside the factory. Further, he claimed that the finding of guilt is
inconsistent with the fact that he never went into hiding after the alleged incident. 29
On December 27, 1996, the trial court rendered its decision 30 convicting the three (3) appellants of Robbery with Homicide with the aggravating
circumstances of evident premeditation and treachery, and sentencing them to suffer the penalty of death. Appellants were acquitted of the charge
of carnapping.
Hence, the present automatic review. In their consolidated brief, 31 appellants raise the lone assignment of error that —
THE TRIAL COURT ERRED IN FINDING THAT THE AGGRAVATING CIRCUMSTANCES OF EVIDENT PREMEDITATION AND
TREACHERY ATTENDED THE COMMISSION OF THE CRIME CHARGED.
In praying for the reduction of the sentence from death to reclusion perpetua, appellants contend that the prosecution failed to prove evident
premeditation, as there was no time for cool reflection since their minds were hazy with the influence of liquor. Appellants further dispute the
existence of treachery since the killing of Remoriata was merely "on the spur of the moment."
The Solicitor General, on the other hand, contends that evident premeditation clearly attended the commission of the crime but said aggravating
circumstance, being inherent in the crime of robbery with homicide, should not be appreciated separately. 32 Treachery qualified the killing since
the victim was sleeping at the time he was attacked. In addition, the generic aggravating circumstances of nighttime and dwelling should be
appreciated.
The principal issue for resolution is whether the aggravating circumstances of treachery and evident premeditation attended the commission of
the offense? Secondarily, we must also determine whether all the elements of robbery with homicide were proved beyond reasonable doubt.
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.33 The conditions which must concur before treachery can be appreciated are: (a) the employment of means of execution that gives the
person attacked no opportunity to defend himself or to retaliate; and (b) that said means of execution be deliberately and consciously
adopted.34 The essence of treachery lies in the adoption of ways that minimize or neutralize any resistance which may be put up by the offended
party.35 The killing of the sleeping victim herein was attended by treachery since he was in no position to flee or defend himself. 36
The presence of treachery, though, should not result in qualifying the offense to murder, for the correct rule is that when it obtains in the special
complex crime of robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance, robbery with homicide being a
case of a composite crime with its own definition and special penalty in the Revised Penal Code. 37
For evident premeditation to exist, the prosecution must prove with clear and convincing evidence the following elements: (1) the time when the
offenders decided to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; and (3) sufficient lapse of
time between the determination and execution to allow them to reflect upon the consequences of their act and allow their conscience to overcome
the resolution of their will.38 Evident premeditation is inherent in crimes against property, but it may be considered in robbery with homicide if
there is premeditation to kill besides stealing.39 The prosecution clearly proved the intention to rob and to disable the victim, but not the intention
to kill him. As Vargas testified, the victim was still alive when they left him rolling on the floor. 40 Thus, evident premeditation can not be
appreciated where the prosecution failed to establish that the accused killed the victim pursuant to a preconceived plan. 41
The alternative circumstance of intoxication, however, should be considered as mitigating, it having been sufficiently shown that (1) at the time of
the commission of the criminal act, they have taken such quantity of alcoholic drinks as to blur their reason and deprive them of certain degree of
control, and (b) that such intoxication is not habitual, or subsequent to the plan to commit the felony. 42
As to the crime committed, the prosecution amply established the following elements of robbery with homicide: (a) the taking of personal property
is perpetrated by means of violence or intimidation against a person, (b) the property taken belongs to another, (c) the taking is characterized by
intent to gain or animus lucrandi, and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, in its generic sense, is
committed. 43 It matters not that the victim was killed prior to the taking of the personal properties of the victim and the other occupants of the
house. What is essential in robbery with homicide is that there be a "direct relation, and intimate connection between robbery and the killing,
whether the latter be prior or subsequent to the former or whether both crimes be committed at the same time. 44 The rule is well-established that
whenever homicide has been committed as a consequence of or on the occasion of the robbery, all those who took part as principals in the robbery
will also be held guilty as principals of the special complex crime of robbery with homicide although they did not actually take part in the
homicide, unless it clearly appears that they endeavored to prevent the homicide. 45 While Cando was bashing the head of the victim, and placing
the personal items in his bag, nary a peep could be heard from Vargas and Rapcing. Their act of simply watching Cando shows their moral assent
and complete acquiescence to the commission of the crime.
Appellant Vargas claims that he was threatened at knife point to join appellant Cando in the commission of the crime. He is in effect invoking the
exempting circumstance of compulsion of an irresistible force under Article 12, par. 5 of the Revised Penal Code. We have held that the
compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense. 46 Vargas had several opportunities to
prevent the killing and to escape, but he chose to remain with his co-conspirators, and even willingly drove the get-away vehicle.
As to appellant Rapcing, the fact that he did not go into hiding after the alleged incident does not make him an innocent man. We have long ruled
that flight is an indicium of guilt, but non-flight is not necessarily an indicium of innocence. 47
Under Article 294 of the Revised Penal Code, as amended by Section 9 of R.A. No. 7659, the penalty for robbery with homicide is reclusion
perpetua to death. There being one mitigating circumstance of intoxication, and one aggravating circumstance of treachery, the penalty to be
imposed is reclusion perpetua.48 The existence of one aggravating circumstance merits the award of exemplary damages under Art. 2230 of the
New Civil Code.
We likewise order that the personal properties which are in custodia legis be returned to the offended parties.
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 33, in Criminal Case No. 95-142748 is hereby MODIFIED as follows:
appellants ROGER CANDO Y PAGDANGANAN, ARNEL VARGAS Y MAGTANGOB, and WILBERTO RAPCING Y BROÑOLA are hereby found
guilty of the crime of Robbery with Homicide, and sentenced to suffer the penalty of reclusion perpetua, and ordered solidarily to pay the heirs of
the victim P50,000.00 as civil indemnity and P10,000.00 as exemplary damages, and to return to the owners thereof the cash and the vehicle and
other effects taken by the appellants, as well as to pay the costs.
SO ORDERED.
 People of the Philippines vs. Ruben A. Lee
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-66848 December 20, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
RUBEN LEE y AMOSO, QUIRINO VIRAY, JR. y COLLADO, and JUAN LAROSA y GONZALES, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Blesila O. Quintillan for defendants-appellants.
 
 
DAVIDE, JR., J.:
In an Information filed with the then Criminal Circuit Court of Manila on 8 July 1981, accused Ruben Lee y Amoso, Quirino Viray, Jr. y Collado,
and Juan Larosa y Gonzales, were charged with the crime of Robbery in Band with Homicide and Multiple Physical Injuries, committed as follows:
That on or about June 22, 1981, in the City of Manila, Philippines, the said accused, conspiring and confederating together with
one GERONIMO GERDAD (deceased) and others whose whereabouts and identities are still unknown, and helping one
another, all armed with unknown caliber firearms and bladed weapons, by employment of craft, that is, pretending to be
bonifide (sic) passengers of a jeepney, bearing plate No. 632 CS, PUJ, driven by BERNABE POYUAON, and at nighttime
purposely sought to better accomplish their objectives, with intent of (sic) gain and by means of force, violence and intimidation
upon persons, to wit: by then and there simultaneously announcing it was a hold-up and pointing their respective weapons,
guns and knives, to the driver and other passengers of the said jeepney, did then and there willfully, unlawfully and feloniously
take, rob, and carry away the following, to wit:
From:
RODRIGO CONDE — One (1) wallet, black, valued
— at P35.00 with 1 -dollar bill; 
BERNABE POYUAON — Cash money of P50.00;
ANNABELE JAVIER — Wallet, wristwatch and
necklace valued not less than
P5.00;
WONG NGAW Seiko Wallet, valued at
P25.00; with SSS ID card and
other papers and cash money
of P200.00 and
PERPETUO AQUINO — Cash Money of Pl0.00.
or all in the total amount of P325.00, more or less, belonging to the aforesaid driver and passengers of the said jeepney, against
their will, to the damage and prejudice of the said owners, in the aforesaid amount of P325.00, more or less, Philippine
Currency; that by reason or on the occasion of the said robbery and for the purpose of enabling the said accused to take, rob, and
carry away the said amount, in pursuance of their conspiracy, the said accused with intent to kill, willfully, unlawfully, and
feloniously attacked, assaulted and used personal violence upon the passengers of the said jeepney, by then and there taking
possession of the steering wheel and driving the vehicle away, firing shots at the crew of the mobile patrol car who (sic) gave
chase of the said accused, and hitting, as a consequence, the following hold-up victims, to wit: LEOPOLDO ESPELLEGO, who
sustained mortal gunshot wounds which were the direct and immediate cause of his death thereafter; GINA SALVADOR, who
sustained a gunshot wound at the back, thereby inflicting upon her serious physical injuries which required and will require
medical attendance for a period of more than thirty days and incapacitated and will incapacitate the said Gina Salvador from
performing her customary labor during the said period of time; and WONG NGAW and PERPETUO AQUINO, both of whom
sustained physical injuries which have (sic) required medical attendance for a period of not less than one day but not more than
nine days and incapacitated the said Wong Ngaw and Perpetuo Aquino from performing their customary labor during the same
period of time.
CONTRARY TO LAW. 1
The case was docketed as Criminal Case No. CCC-VI-49 (81).
Each of the accused entered a plea of not guilty at the arraignment on 7 September 1981. 2
At the trial on the merits, the prosecution presented the following witnesses: Gina Salvador and Rodrigo Conde, two (2) of the jeepney passengers;
Pfc. Florentino Bagallon, the investigating policeman; and Drs. Marcial C. Cenido and Narciso Adraneda, Jr., the examining physicians. The
defense presented the three (3) accused. Thereafter, on 26 August 1983, the trial court (now Branch XLVI, Regional Trial Court of Manila)
promulgated its decision 3 finding the accused guilty of the crime charged and sentencing them to suffer the penalty of death. The dispositive
portion of the decision reads in full as follows:
WHEREFORE, the Court finds the accused, Ruben Lee y Amoso, Quirino Viray, Jr. y Collado and Juan Larosa y Gonzales, guilty
beyond reasonable doubt of the crime of robbery in band with homicide and multiple physical injuries which is aggravated
further by craft and nighttime and hereby sentences them to suffer the Penalty of DEATH; to pay, jointly and severally, the heirs
 of the deceased Leopoldo Espellego the sum of P12,000.00 for the death of the latter, and to the robbery victims, the following
sums: Rodrigo Conde, P35.00; Wong Ngaw, P225.00; and Perpetuo Aquino, P10.00 all of which were not recovered. They are
also ordered to pay their proportionate shares of the costs of suit.
The .45 caliber paltik, Exhibit W, and the .32 caliber Sentinel revolver, Exhibit W-1, which bears Serial No. P 5803, are hereby
confiscated in favor of the government and the Clerk of Court is hereby directed to cause delivery of the same to the Firearms
and Explosives Section, Philippine Constabulary, Camp Crame, Quezon City.
Atty. Fernando Mangubat is hereby awarded the sum of P500.00 as attorney's fees.
Pursuant to the governing law then in force, 4 the case was elevated to this Court for automatic review.
The conviction is based on the following findings of fact of the trial court:
June 22, 1981, at about 2:30 o'clock a.m., a passenger jeepney with Plate No. 632 CS, PUJ, driven by Bernabe Poyuaon, was on
its way from Rizal Avenue, Manila to Baclaran, Metro Manila. In the jeepney as passengers while it was already nearing the
Philippine General Hospital along Taft Avenue were some 13 persons who were seated as follows: On the left seat (which is
directly behind the driver) were a male passenger immediately behind the driver, Leopoldo Espellego, Annabele Javier, Gina
Salvador, and a male passenger who was seated just at the entrance of the jeepney, in that order. On the right seat beginning
from the entrance of the jeepney were a male passenger, Maria Lourdes Javier, Rodrigo Conde, Perpetuo Aquino and Wong
Ngaw, also in that order. Beside the driver were two male passengers.
xxx xxx xxx
The jeepney was travelling southward along Taft Avenue when the passenger seated last on the left seated near the entrance of
the jeepney and who turned out to be the accused, Ruben Lee, drew out a gun and first poked it at Gina Salvador who was to his
left and then waived (sic) said gun at the other passengers, at the same time announcing a hold-up as follows: "Mga putang ina
ninyo, huag kayong sisigaw, hold-up ito" (Sons of bitches, don't shout. This is a hold-up). Simultaneously, the passenger seated
in front of Ruben Lee who turned out to be Quirino Viray, Jr. drew out a knife and poked it at Maria Lourdes Javier who was to
his right; the passenger seated just behind the driver who turned out to be Geronimo Gerdad drew out a gun and pointed it at
the driver; and the passenger seated further from the driver drew out and poked a knife at the driver.
The announcement of the hold-up frightened the passengers and Ruben Lee ordered them to hand over their wallets, watches
and other valuables. He ordered Geronimo Gerdad to collect the things of the passengers near him. Gina Salvador gave the
following to Ruben Lee: her Seiko 5 Men's watch worth P500.00; her Chinese gold necklace worth P200.00; cash amounting to
P800.00; and her handbag worth P15.00. From Rodrigo Conde was taken a wallet worth P35.00 and containing one Australian
dollar, From the others, including that of the driver, were taken cash which were (sic) handed over to Geronimo Gerdad.
When approaching Pedro Gil Street, Ruben Lee ordered the driver to turn right towards Roxas Boulevard and upon reaching
Mabini Street, the jeepney was noticed by the crew of Police Mobile Patrol Car No. 221 as Pedro Gil is a one-way street Patrol
Car No. 221 tailed the jeepney and signalled it to a stop. Upon orders of Ruben Lee, the jeepney driver stepped down to talk
nicely to the policemen (who stopped their car about seven meters behind) by telling the latter that they entered the street by
accident. At the same time, Ruben Lee warned the passengers to keep quiet, otherwise he will shoot them.
Once the jeepney driver left to talk to the policemen, Ruben Lee also stepped down, placed his gun on his seat and ordered
Quirino Viray, Jr. to take hold of it, and proceeded to the driver's seat, started the jeepney and drove off towards Roxas
Boulevard, turned left and sped towards Baclaran. Mobile Patrol Car No. 221 (with the jeepney driver on board) followed suit
with its sirens blowing and at the same time alerting other patrol cars through its radio. The jeepney, with Ruben Lee on the
wheels, turned left towards the airport and on reaching a dark roard, turned back. At this juncture, Ruben Lee ordered one of
the passengers thrown out in order to distract the attention of the pursuers. So that the passenger beside him was thrown out.
However, said passenger was not hurt; instead he ran away after hitting (sic) ground. With the mobile patrol car in pursuit, the
jeepney sped back to Roxas Boulevard and towards the Luneta with the holduppers taking potshots at the pursuers. And
because the passengers heard shots coming from behind, they were either down on the floor or were stooping from their seats,
for fear that the policemen might shot (sic) directly at them. The jeepney finally stopped at Marvex Drive in Balintawak, Quezon
City. The hold-uppers jumped out of the jeepney and engaged the pursuing policemen in a shoot out. Ruben Lee pointed a gun
at Gina Salvador's back and fired. When the firing subsided, one of the hold-uppers, Geronimo Gerdad, was found seriously
wounded and a .22 caliber revolver (Exhibit W-1) was found near his body. One of the passenger victims, Leopoldo Espellego,
was seriously wounded while three others were wounded, namely: Gina Salvador who suffered a gunshot wound; Wong Ngaw,
with lacerations and abrasions (see Exhibit F); and Perpetuo Aquino, with a lacerated wound (See Exhibit G). One patrol car
brought Gerdad and Espellego to the Chinese Memorial Hospital where both were pronounced dead on arrival. Gina Salvador,
Wong Ngaw and Perpetuo Aquino were brought to the Jose Reyes Memorial Hospital where they were treated. 5
Through their counsel de oficio appointed by this Court, accused-appellants filed their Brief 6 on 22 March 1985.
The People, through the Solicitor General, filed the Appellee's Brief 7 on 12 September 1985.
Pursuant to Section 19(l), Article III of the 1987 Constitution of the Republic of the Philippines which provides that any death penalty already
imposed shall be reduced to reclusion perpetua, this Court, in a letter to the accused dated 20 April 1988, asked them whether they still wished to
continue with their case considering that the death penalty is no longer imposable and their death sentences had been automatically commuted
to reclusion perpetua. 8
In their letter to this Court dated 2 May 1988, accused Ruben Lee and Quirino Viray manifested their willingness to accept the sentence
of Reclusion Perpetua. 9 Accused Juan Larosa, however, in a letter to this Court dated 29 April 1988, manifested that he wanted to continue with
his appeal. 10
In view of the foregoing, this Court promulgated on 25 May 1988 the following resolution:
G.R. No. 66848 (People vs. Ruben Lee, et. al.)—Considering the pleadings filed in this case, the Court Resolved to NOTE: (a) the
letter of compliance filed by accused-appellants Ruben Lee and Quirino Viray signed in the presence of witnesses, dated May 2,
1 988, stating that they are willing to accept the sentence of reclusion perpetua in consonance with the provision of Section 19
(1), Article III of the 1987 Constitution; and (b) the letter of compliance filed by accused-appellant Juan Larosa dated April 29,
1988 stating that he wants to continue his case as an appealed case.
Said resolution became final on 17 June 1988 and Entry of Judgment was correspondingly made.
This review should then be limited to the case of accused Juan Larosa.
In the Appellant's Brief, accused Juan Larosa assigns the following errors: 11
I
THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED LAROSA IS GUILTY OF THE CRIME CHARGED BEYOND REASONABLE DOUBT
WHEN HE WAS NOT PROPERLY AND CREDIBLY IDENTIFIED AS PARTICIPANT (SIC) IN THE CRIME;
II
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE DEFENSE OF ALIBI OF THE ACCUSED;
III
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER BY ACCUSED.
We shall take them up in the order they are presented.
A. In support of the first assigned error, Larosa claims that the two (2) alleged eyewitnesses presented by the prosecution, namely, Gina Salvador
and Rodrigo Conde, were not able to identify him.
Indeed, as correctly pointed out by Larosa, Gina failed to mention him. While she was very specific as to the role and participation of accused
Ruben Lee and Quirino Viray, she candidly admitted that she "could no longer recall the hold-upper who was sitted (sic) in front (sic) of the
jeep." 12 However, prosecution witness Conde positively identified Larosa as the holdupper sitting on the front seat of the jeep. On direct
examination, he testified as follows:
Fiscal Belmonte:
Q When you boarded the jeep, were there passengers?
A Yes, Sir.
Q When you boarded the jeep, were these three already there?
A Yes, Sir.
Q What happened next?
 A When the jeep reached at the PGH, the three drew guns, Sir.
Q Did thev say anything?
A Yes, Sir, they said, this is a hold-up.
Court:
Q Who among the three drew a gun?
A Ruben Lee, Your Honor.
Q Who else?
A The other one sitting near the driver, Sir.
Fiscal Belmonte:
Q Is that other one in this Courtroom?
A Yes, Sir.
Court:
Q Point to him?
A Larosa, Your Honor. 13
xxx xxx xxx
Fiscal Belmonte:
Q Do you know if there was any passenger of that jeep fell (sic) down?
A Yes, Sir.
Q Where was that passenger sitted (sic) at the time that he was fell (sic) down?
A We were on our way to MIA when that passenger fell down, Sir.
Q Why did he fall down?
A Because he was pushed by one of the holduper (sic), Sir.
Q Do you know who was that holduper?
A Larosa, Sir. 14
On cross-examination, this witness immediately aborted the defense counsel's attempt to show that the light of the jeep was put off, hence, it was
impossible for him to see the holduppers clearly. Thus:
Atty. Mangubat:
Q By the way when these holduper (sic) announced that it was hold-up, did they order the driver to put out
the light?
A No, Sir. 15
xxx xxx xxx
Subsequent attempts on the part of the cross-examiner to discredit Conde proved futile. His testimony was given full faith and credit by the trial
court and We find no reason to overturn such a finding. Well-entrenched is the rule that appellate courts will generally not disturb the factual
findings of the trial court since the latter are in a better position to weigh conflicting testimonies, having heard the witnesses themselves and
observed their deportment and manner of testifying, unless it is found that the trial courts have plainly overlooked certain facts of substance and
value that, if considered, might affect the result of the case. 16
Equally settled is the rule that conviction may be based on the lone testimony of an eyewitness, when the testimony is credible. 17
B. In respect to his second assigned error, Larosa would have Us believe that at 2:00 a.m. of 22 June 1981, he was at his house sleeping with his
family. 18 However, accused relies merely on his own testimony and his alibi is not corroborated by anybody else.
We have ruled time and again that alibi is a weak defense for it is easy to concoct and fabricate.  19 Alibi cannot prevail over and is worthless in the
face of the positive identification by credible witnesses that the accused perpetrated the crime. 20 In the case at bar, We find no reason to depart
from this doctrine for the prosecution has sufficiently established the guilt of the accused Larosa.
C. In his last assigned error, Larosa claims that he voluntarily submitted to the custody of the police and offered no resistance when the police
accosted him. We agree with the Appellee that this contention has no basis. Before Larosa and the other holduppers could even be apprehended,
they engaged the pursuing police authorities in a shootout and only gave up upon realizing that they were already surrounded by residents
and tanod members in the vicinity. 21
For a surrender to be voluntary, it must be spontaneous and should show the intent of the accused to submit himself unconditionally to the
authorities, either: (1) because he acknowledges his guilt, or (2) because he wishes to save them the trouble and expense necessarily included for
his search and capture. 22 In the absence of these two (2) reasons, and in the event that the only reason for accused's supposed surrender is to
insure his safety, his arrest being inevitable, the surrender is not spontaneous and hence, not voluntary. 23
The trial court correctly appreciated against the accused the generic aggravating circumstances of band and craft. Nighttime, however, was
erroneously taken against him.
A crime is committed by a band whenever more than three (3) armed malefactors shall have acted together in the commission of an offense.  24In
the case at bar, commission by a band was properly appreciated as it has been shown that when the holdup was staged, Ruben Lee, Quirino Viray,
Geronimo Gerdad (deceased), and accused Larosa were all armed with guns and knives.
Craft is likewise present herein since the accused and his cohorts pretended to be bona fide passengers of the jeep in order not to arouse suspicion.
However, once inside the jeep, they robbed the driver and the other passengers. 25
As to nighttime, there is no showing that it was purposely sought for or taken advantage of to facilitate the commission of the offense or for the
purpose of impunity. 26 There's no proof that they waited for the night to commit the crime. Besides, as testified to by Rodrigo Conde, the light of
the jeep was not put off. Obviously, they did not seek the darkness of the night and were not afraid of the light.
The robbery and the resulting deaths of Leopoldo Espellego and Geronimo Gerdad (holdupper) and physical injuries of Gina Salvador, Wong
Ngaw, and Perpetuo Aquino are included in one (1) special complex crime of robbery with homicide and physical injuries, defined and penalized
under Article 294 of the Revised Penal Code, it being evident that the deaths and injuries occurred by reason of or on occasion of the
robbery. 27 The penalty provided for therein is reclusion perpetua to death. Considering the presence of the aggravating circumstances of band
and craft or disguise, the greater penalty, which is death, shall be applied. 28However, in view of the provisions of the 1987 Constitution
abolishing the death penalty, 29 accused Larosa is entitled to the reduced penalty of reclusion perpetua.
Finally, conformably with the new policy of this Court, 30 the civil indemnity of P12,000.00 is increased to P50,000.00. However, considering
that the judgment against Ruben Lee and Quirino Viray, the other convicted holduppers herein, had become final and executory as of 7 June 1988,
they are solidarily liable with Juan Larosa up to the amount of P12,000.00 only. Anything in excess of said amount is the sole liability of accused
Larosa.
WHEREFORE, the judgment of the trial court in Criminal Case No. CCC-VI-49 (81) finding the accused, Juan Larosa and his co-accused guilty
beyond reasonable doubt of the crime of Robbery with Homicide and Physical Injuries, as defined and penalized under Article 294 of the Revised
Penal Code, is hereby AFFIRMED in all respects, except as above modified. As modified, he is hereby sentenced to suffer the penalty
of RECLUSION PERPETUA, and the civil indemnity for the death of Leopoldo Espellego is hereby increased to P50,000.00, the first P12,000.00
of which the accused Juan Larosa shall be jointly and severally liable with his co-accused, and for the remaining P38,000.00 he shall be solely
liable.
No pronouncement as to costs.
IT IS SO ORDERED.
 People of the Philippines vs. Rolando Casingal, et al.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
 
G.R. No. 87163 March 29, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
ROLANDO CASINGAL and REYNALDO HILUM, accused-appellants.
 
QUIASON, J.:
This is In appeal in the decision of the Regional Trial Court, National Capital Judicial Region, Branch 68, Passim Metro Manila in Criminal Case
No. 63632. finding appellants guilty beyond reasonable doubt of the crime of murder.
I
The information charging Rolando Casingal and Reynaldo Hilum of the crime of murder reads as follows:
That on or about the 17th of April 1985, in the Municipality of Mandaluyong, Metro Manila, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping
and aiding one another, at night time, a circumstance deliberately sought to insure success in the commission of the crime,
armed with a lead pipe, kitchen knife and ice pick, with intent to kill, evident premeditation, and with abuse of superior strength
did, then and there willfully, unlawfully and feloniously attack, assault and stab one Eduardo Go on his chest and different parts
of the body, thereby inflicting upon the latter stab wounds which directly caused his death (Rollo, p. 9).
Both accused, assisted by their counsel, pleaded not guilty to the information.
After trial, on January 10, 1989, the court a quo rendered a decision convicting appellants for the murder of Eduardo Go. The dispositive portion
of the decision reads as follows:
WHEREFORE, premises considered, the Court finds both accused Rolando Casingal and Reynaldo Hilum guilty beyond
reasonable doubt of the crime of murder defined and penalized under Art. 248 of the Revised Penal Code, and there being no
other aggravating circumstances sentences both accused to suffer the penalty of Reclusion Perpetua, with all the accessory
penalty (sic) provided for by law and to indemnify the heirs of the deceased Eduardo Go jointly and severally the following
sums:
1. P30,000.00 for the death of the deceased;
2. P98,202.00 for actual damages;
3. P200,000 00 for moral and exemplary damages; and
4. cost of suit.
The bail bonds for the temporary liberty of both accused are cancelled, and they are ordered committed to the National
Penitentiary pending final resolution of this case (Rollo, p. 46).
II
On April 16, 1985, at about 10:00 P.M., Rolando Casingal arrived home at No. 2 Katarungan St., Mandaluyong, Metro Manila. He was
accompanied by Reynaldo Hilum. His mother, Rosa Bituin, was not at home at that time as she had to spend the night at Fairview, Quezon City.
Casingal asked Jesusa Labuac, a housemaid, for a cassette tape. After giving the cassette tape to Casingal, Labuac went upstairs to sleep. Later, she
was awakened by a noise coming from the first floor which she described as "kalabugan" and shouts of "tama na, tama na."
Labuac did not dare go downstairs because she was afraid of Casingal, who used to manhandle her. She just slept until 5:00 A.M. Looking out of
the window, she saw the two appellants in the garage standing near the Toyota car of Eduardo Go. The car's trunk was open and she saw a body
resembling that of Go slumped inside.
Hilum entered the house carrying some things. Going back to the yard, he opened the gate to allow Casingal to drive the car out.
After appellants left, Labuac went downstairs and saw blood stains scattered on the floor of the living room. She saw a blanket with blood stains in
a basin placed outside the kitchen.
Labuac cleaned the blood stains on the floor. When appellants returned, Casingal warned Labuac not to tell anyone that she saw Go. Hilum then
washed the blood-stained blanket.
Armando Boloran, an employee of the Asian Development Bank, saw Go's car parked near the bank's premises at Pasay City. After seeing blood
dripping from the trunk of the car, he reported his finding to a security guard of the bank, who, in turn, contacted the Pasay City Police.
When Bituin returned home at 6:00 P.M. of April 17, she went to the room of Casingal, which was splattered with blood stains on the walls and
ceiling.
In the morning of April 18, Labuac saw in the newspapers a picture of Go's cadaver inside the trunk of his car. After reading the newspapers,
Casingal remarked: "Malinis ang goma."
Casingal and Hilum left that day for Samar, after getting a sketch prepared by Bituin.
Dr. Bienvenido Muñoz who conducted an autopsy of Go's cadaver, testified that Go died from acute, massive hemorrhage secondary to multiple
stab wounds. He found more than 100 stab wounds in Go's body. The possible instrument used was a sharp pointed single bladed instrument, like
a "balisong," kitchen knife or any similar instrument.
Both appellants denied having killed Go. Their version of the incident was as follows:
While appellants were drinking in Casingal's bedroom at around 10:00 P.M. of April 16, 1985, they saw a big dog standing at the door of the house.
They decided to catch the dog and butcher it for their "pulutan." After catching the dog, they brought it inside the bedroom, but it was able to get
away and run to the dining room and sala. Hilum was able to stab it several times, causing its blood to drip on the floor.
Casingal told Labuac that if somebody would inquire about a lost dog, she should not tell that it was butchered by them. Earlier that day, Casingal
had a heated argument with Labuac when the latter refused to follow his order. As a result, Casingal boxed her. Labuac tried to stab Casingal with
a kitchen knife but was prevented from doing so by Hilum. Labuac even threatened "Putang ina mo, makakaganti rin ako sa iyo at gagapang ka
rin."
Casingal surmised that the reason he was sent to Samar was because Labuac told his mother about the dog which they butchered, the drinking
spree and the quarrel which took place earlier between them.
At around 6:00 AM. of April 18, 1985, appellants took a bus to Basay, Samar. They reached Basay at around 8:00 A.M. of April 19, 1985 and stayed
in the house of Guillermo Bacha, a relative of Casingal.
On June 6, 1985, Casingal left Samar for Tacloban to pursue his studies.
On June 13, 1985 at around 11:30 P.M., Casingal was arrested by several policemen and constabulary soldiers. On June 14, 1985, Hilum was
arrested in Samar.
III
Appellants contend that the decision convicting them is void for the judge who penned it, Judge Ernani Cruz Pano, was not the one who heard the
case. Furthermore, the stenographic notes of the testimonies of several prosecution witnesses were not yet transcribed when the decision was
rendered.
Before the rendition of said judgment, no less than four judges heard the case. Judge Otilio Abaya heard the prosecution witnesses; while Judges
Demetrio M. Batario, Zenaida Baltazar and Julio R. Logarta heard the defense witnesses.
The prosecution filed a Motion to Defer Promulgation of Judgment on the ground that the transcripts of stenographic notes of prosecution
witnesses, Dr. Bienvenido Muñoz, Cpl. Leandro Abel and Jesusa Labuac (on cross-examination), had not bees transcribed by stenographer Morita
San Juan, who migrated to the United States. The defense opposed the motion for being dilatory, but admitted the testimony of Dr. Bienvenido
Muñoz, based upon his Medico-Legal Certificate and the testimony of Jesusa Labuac, based on her "Salaysay" given to Cpl. Leandro Abel. Having
obtained an unfavorable judgment, the defense reversed its position and is now questioning the rendition of the judgment without the complete
transcription of the stenographic notes.
In a resolution dated February 26, 1990, this Court ordered the retaking of the testimonies of Dr. Bienvenido Muñoz, Jesusa Labuac (on cross-
examination) and Cpl. Leandro Abel. A reading of the retaken testimonies of Dr. Bienvenido Muñoz and the cross-examination of Jesusa Labuac
shows that their testimonies do not materially differ from the Medico-Legal Certificate and "Salaysay," respectively, admitted in evidence. But
even without the retaking of the testimony of these prosecution witnesses, there was no more impediment for the judge to decide the case based
on the Medico-Legal Certificate and "Salaysay."
The testimony of Cpl. Leandro Abel should not affect the outcome of the case because this dealt only with the circumstances of the arrest of
appellants and their extrajudicial confessions. The trial court ruled the confessions as illegal for having been obtained in violation of the accused's
right to counsel. Hence, their testimony, even if presented, would not have affected the outcome of this case.
Appellants try to capitalize on the granting of bail by Judge Logarta after the prosecution had rested its case. They contend that this only shows
that the evidence of guilt is not strong and, therefore, there is no legal basis for Judge Pano to convict them of the crime of murder.
A reading of the Order dated October 6, 1987, granting the Motion for Admission to Bail, shows that it does not contain a summary of the evidence
offered by the prosecution. We have held in People v. Nano, 205 SCRA 155 (1992) that "[a]n order granting or refusing bail must contain a
summary of the evidence offered by the prosecution. On the basis thereof, the judge should then formulate his own conclusion as to whether the
evidence so presented is strong enough as to indicate guilt and thereby cause the continued detention of the accused. Otherwise, the accused must
be released on bail."
It is apparent that the aforementioned order was defective in form and substance. There was no recital of any evidence presented by the
prosecution nor a pronouncement that the evidence of guilt of the accused was not strong. Hence, the said order should not be sustained nor given
any semblance of validity.
In People v.  Nano, supra. at 161, we stated that:
Admission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable
legal principles, . . . . In other words, discretion must be exercised regularly, legally and within the confines of procedural due
process, i.e., after evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a
product of sound judicial discretion but of whim and caprice and outright arbitrariness.
We now resolve the issue of whether or not circumstantial evidence is present to warrant the conviction of appellants for the killing of the victim.
For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the
hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational
hypothesis except that of guilt (People v. Jara, 144 SCRA 517 [1986]). Guilt may be established through circumstantial evidence provided that the
requisites therefor are present: namely, (1) there must be more than one circumstance; (2) the inferences must based on proven facts; and (3) the
combination of all circumstances produces a conviction beyond doubt of the guilt of the accused (People v. Bacus, 204 SCRA 81 [1991]).
The following circumstances point to the guilt of both appellants:
(1) At around 10:00 P.M. of April 16, 1985, Casingal and Hilum were together drinking inside the former's room. Hilum had
been staying in the house of Casingal for one month.
(2) On that same night, Jesusa was awakened by a "kalabugan" and shouts of "tama na tama na" coming from the room of
Casingal.
(3) At around 5:00 A.M. of April 17, 1985, Labuac saw Go's car parked inside the garage and inside the car's trunk a body
resembling that of Eddie Go ("parang kay Eddie Do").
(4) Hilum placed something inside the garbage can and burned the same with gasoline.
(5) Casingal, with Hilum as a passenger, drove Go's car.
(6) The dining room and sala were splattered with blood. A blood-stained blanket was soaked in a basin.
(7) Upon arrival, Casingal told Labuac not to tell the relatives of Go that the latter went there.
(8) Hilum destroyed and burned the bed of Casingal and washed the blood-stained blanket.
(9) The body of Go inside the trunk was found at around 7:12 in the morning of April 17, 1985 in Pasay City by Armando
Boloran.
(10) Both accused left for Samar on April 18, 1985.
Appellants' claim that what they killed was a dog is not worthy of credence. It is not usual to kill a dog inside one's bedroom. No howling was
heard despite the defense's allegation that the dog ran to the dining room and sala after it was stabbed. Appellants failed to present the person to
whom they allegedly sold the dead dog for "pulutan" on April 17, 1985.
The defense tried to discredit the testimony of Labuac by showing ill motive on her part. Three defense witnesses testified as to the bad
relationship between Casingal and Labuac. The evidence shows that the mother of Casingal Bituin, knew of the bad blood between the two but she
continued to retain the services of Labuac. It is not natural for a mother to continue the services of a mere housemaid, who would only disobey her
children, on the pretext that it was hard to find another housemaid. The defense failed to prove that this bad relationship between Casingal and
Labuac had reached such intensity as to cause the latter to falsely attribute a heinous crime to the former. On the part of Hilum, there was no
showing of ill motive on the part of Labuac to implicate him.
This Court finds no reason for the hurried departure of Casingal to Samar for him to continue his studies, considering that as testified by him, he
enrolled only in the month of June 1985 at the Leyte National High School in Tacloban City. This only means that the sudden flight of both
appellants to Samar the day after the discovery of Go's body, was to hide their complicity in crime. Flight evidences a guilty conscience (Anciro v.
People, 228 SCRA 629 [1993]).
We, however, find that the crime committed is only homicide and not murder for failure to prove the qualifying circumstances of evident
premeditation and abuse of superior strength.
The prosecution postulates that as early as April 9, 1985, there was already a decision to kill Go, made at Ligaya Beach Resort in Batangas.
However, Casingal was not with the group that went to the resort.
The fact that there were two persons who attacked the victim does not per se establish that the crime was committed with abuse of superior
strength, there being no proof of the relative strength of the aggressors and the victim. To take advantage of superior strength means to purposely
use excessive force out of proportion to the means available to the person attacked to defend himself (People v. Alitao, 194 SCRA 120 (1991).
Neither can the aggravating circumstance of nighttime be appreciated in the instant case. The evidence does not show that nighttime was
deliberately and purposely sought to facilitate, or that it actually facilitated, the commission of the crime (People v. Empacis, 222 SCRA 59 [1993]).
The award of P200,000.00 for moral and exemplary damages in the trial court's decision is deleted. There was no evidence that the crime was
committed with the attendance of any aggravating circumstances; hence, no exemplary damages may be awarded. On the other hand, the award of
moral damages by the trial court is unexplained and unsupported in the court's decision.
In the absence of any qualifying circumstance, the crime committed is only homicide. The penalty for homicide under Article 249 of the Revised
Penal Code is reclusion temporal. There were no mitigating and aggravating circumstances. Applying the Indeterminate Sentence Law, appellants
are sentenced to an indeterminate penalty ranging from ten (10) years of prison mayor as minimum to seventeen (17) years and four (4) months
of reclusion temporal as maximum. The award of P30,000.00. as indemnity to the heirs of the victim is increased to P50,000.00.
WHEREFORE, the decision appealed from is AFFIRMED with the modification above indicated.
SO ORDERED.

People of the Philippines vs. Melchor B. Real

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
 
G.R. No. 93436 March 24, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
MELCHOR REAL y BARTOLAY, accused-appellant.
 
QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court, Branch 44, Masbate, Masbate, in Criminal Case No. 1606 finding appellant guilty
of murder.
We affirm with modification, the appealed decision.
I
The information against appellant reads as follows:
That on or about March 11, 1978, in the morning thereof, at the Poblacion of the Municipality of Aroroy, Province of Masbate,
Philippines, within the jurisdiction of this Court, the said accused with intent to kill, evident premeditation and treachery, did
then and there willfully, unlawfully, feloniously and criminally attack, assault and hack with a sharp bolo one Edgardo Corpus y
Rapsing, hitting the latter on the nape, causing an injury which caused the death of the said Edgardo Corpus y Rapsing several
days thereafter.
That the accused is a recidivist having been convicted by the Municipal Court of Aroroy, in the following cases:
Crime Date of Conviction
1. Ill treatment by Deed — July 6, 1965
2. Grave Threats — November 25, 1968
(Rollo, p. 14).
Upon being arraigned, appellant pleaded not guilty.
After trial, the court convicted appellant and sentenced him to suffer the penalty of reclusion perpetua and to pay the heirs of the victim the sum of
P30,000.00 and costs.
Hence, this appeal.
II
At about 9:00 A.M. on March 17, 1978, in the public market of Aroroy, Masbate, appellant and Edgardo Corpus, both vendors, engaged in a heated
argument over the right to use the market table to display their fish.
Moreno de la Rosa, the Municipal Mayor, who happened to be at the public market, tried to pacify them, saying that they were arguing over trivial
matters.
The two protagonists momentarily kept their peace but after awhile Corpus raised his voice again and said something to appellant. The latter, in a
soft voice, uttered "SOBRA NA INA NA IMO PAGDAOGDAOG" (You are being too oppressive).
When Corpus kept on walking to and fro near the disputed fish table, appellant started to sharpen his bolo while murmuring to himself. Once
Corpus turned around with his back towards appellant, the latter hacked him on the nape. The blow caused Corpus to collapse. He was rushed to a
medical clinic. When asked by his wife as to who hacked him, he answered "Melchor Real."
A police investigator went to the clinic to take the dying declaration of Corpus, who said that it was appellant who stabbed him. Corpus died two
days later.
Appellant admitted hacking Corpus but claimed that he did so out of humiliation and anger when the victim threw his fish in the presence of so
many people.
He testified as follows:
Q. When Edgardo Corpus was lambasting you in the presence of the public, what did you do, how did you
feel?
A. I got angry.
Q. And what did you do?
A. So I hacked him.
Q. Was he hit?
 A. Yes, Sir.
Q. In what part of his body was he hit?
A. At the right neck.
Q. Did you admit to the authorities that it was you who hacked Edgardo Corpus?
A. Yes, sir.
On cross-examination, he again admitted his guilt.
Q. And when this Edgardo Corpus turn (sic) his back, you immediately hacked him on his neck?
A. Yes, sir ( TSN, July 9, 1986, pp. 6-8; Emphasis supplied).
III
Before us, appellant argues that the crime committed was only homicide and not murder and that he is entitled to two mitigating circumstances:
namely, passion and obfuscation and vindication of a grave offense.
We agree with appellant that the offense committed was homicide. He is entitled to the benefit of the doubt as to whether he acted with alevosia
when he attacked the victim. As a rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was
cooly and deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply,
however, where the attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the
accused because of the provocative act of the victim (People v. Aguiluz, 207 SCRA 187 [1992]). This is more so, where the assault upon the victim
was preceded by a heated exchange of words between him and the accused (People v. Rillorta, 180 SCRA 102 [1989]). In the case at bench, the
assault came in the course of an altercation and after appellant had sharpened his bolo in full view of the victim. Appellant's act of sharpening his
bolo can be interpreted as an attempt to frighten the victim so the latter would leave him alone. It was simply foolhardy for the victim to continue
walking to and fro near appellant in a taunting manner while the latter was sharpening his bolo.
The suddenness of the attack does not, by itself, suffice to support a finding of  alevosia where the decision to attack was made peremptorily and
the victim's helpless position was accidental (People v. Ardisa, 55 SCRA 245 [1974]).
Appellant also claims that he is entitled to two mitigating circumstances: namely, vindication of a grave offense and passion and obfuscation. The
peculiarity of these two mitigating circumstances is that they cannot be applied at the same time if they arise from the same facts or motive.
If appellant attacked his victim in the proximate vindication of a grave offense, he cannot successfully claim in the same breath that he was also
blinded by passion and obfuscation. At most, only one of two circumstances could be considered in favor of appellant (People v. Yaon, Court of
Appeals, 43 O.G. 4142 cited in I Reyes, Revised Penal Code [1981]).
The act of the victim in berating and humiliating appellant was enough to produce passion and obfuscation, considering that the incident
happened in a market place within full view and within hearing distance of many people.
The trial court held, and the Solicitor General agreed, that the attendant aggravating circumstance was reiteracion and not reincidencia as alleged
in the information. The trial court and the Solicitor General are in error.
According to the information charging appellant of murder and the evidence, the accused was previously convicted of ill-treatment by deed on
July 6, 1965 and grave threats on November 25, 1968.
In recidivism or reincidencia, the offender shall have been previously convicted by final judgment of another crime embraced in the same title of
the Revised Penal Code (Revised Penal Code, Art. 14[g]). In reiteracion, the offender shall have been punished previously for an offense to which
the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty (Revised Penal Code, Art. 14[10]).
Unlike in reincidencia, the offender in reiteracion commits a crime different in kind from that for which he was previously tried and convicted
(Guevarra, Penal Sciences and Philippine Criminal Law 129 [1974]).
Appellant was previously convicted of ill-treatment by deed (Revised Penal Code, Art. 266, Title Eight) and grave threats (Revised Penal Code, Art.
282, Title Nine). He was convicted of homicide in the instant criminal case (Revised Penal Code, Art. 249, Title Eight). Inasmuch as homicide and
ill-treatment by deed fall under Title Eight, the aggravating circumstance to be appreciated against him is recidivism under Article 14[g] rather
than reiteracion under Article 14(10) of the Revised Penal Code.
There is no reiteracion because that circumstance requires that the previous offenses should not be embraced in the same title of the Code. While
grave threats fall in title (Title Nine) different from homicide (Title Eight), still reiteracion cannot be appreciated because such aggravating
circumstance requires that if there is only one prior offense, that offense must be punishable by an equal or greater penalty than the one for which
the accused has been convicted. Likewise, the prosecution has to prove that the offender has been punished for the previous offense. There is no
evidence presented by the prosecution to that effect.
Appellant is convicted of homicide, appreciating in his favor the mitigating circumstance of passion and obfuscation, which is offset by the
aggravating circumstance of recidivism.
WHEREFORE, the judgment of the trial court is AFFIRMED with the MODIFICATION that appellant is convicted of the crime of homicide and
sentenced 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. The indemnity to be paid to the heirs of the victim is increased to P50,000.00.
SO ORDERED.
 People of the Philippines vs. Melquiades Fernandez, et al.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-62116 March 22, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
MELQUIADES FERNANDEZ alias "Moding", and FEDERICO CONRADO,defendants-appellants.
The Office of the Solicitor General for plaintiff-appellee.
Eduardo R. Ceniza for defendants-appellants.
 
PADILLA, J.:
Before the Court is Federico Conrado's appeal from the decision * of the Court of First Instance (now Regional Trial Court) of Pangasinan, Branch
I, in Criminal Case No. L-2593 entitled, "The People of the Philippines vs. Melquiades Fernandez,  alias 'Moding' and Federico Conrado"
convicting him and the other accused of the crime of rape and sentencing them each to suffer inter alia two (2) death penalties.
The criminal complaint dated 2 June 1982 filed before the trial court, reads as follows:
That on or about the 13th day of January, 1982, at 2:00 o'clock in the afternoon, at barangay Taloy, municipality of Malasiqui,
province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and mutually helping one another, did, then and there, wilfully, unlawfully, and feloniously have sexual intercourse with the
undersigned offended party Rebecca M. Soriano, a virgin and 15 years old, by means of force and intimidation and against the
will of the latter. 1
Assisted by counsel, the accused Fernandez and Conrado, uncle and nephew respectively, pleaded not guilty on arraignment 2 and underwent trial.
Teofilo Malong employed Rebecca Soriano as a househelper since September 1981. Residing in Teofilo's house were his wife and daughters
Amelita and Ma. Theresa. Rebecca Soriano testified that on 13 January 1982 at about 2:00 o'clock in the afternoon, and after she had just finished
taking a bath and still naked, the two (2) accused, both in short pants, surreptitiously entered the bathroom. To prevent her from making an
outcry, a piece of cloth was tightly tied around her neck, after which she was forcibly laid down. Conrado held her hands behind her while
Fernandez sexually abused her. She declared that, immediately after Fernandez had raped her, Conrado in turn went on top of her and likewise
succeeded in having sexual congress with her against her will. She added that, thereafter, Fernandez got a handful of mud near the bathroom and
placed it on her vagina. Thereupon, she ran to the upper floor of the house to report the tragic incident to Amelita Malong. 3
During the trial, Amelita Malong declared that in that afternoon of 13 January 1982, she was combing her hair in her room when she saw the
approaching Rebecca, naked with smeared mud on her lower private part and a piece of cloth around her neck. She testified that after she was told
by Rebecca about the incident, they reported the same to her father, Teofilo, who was in his store. She also declared that she knew both the
accused because Fernandez used to spray their mango trees while Conrado sold to them a dog sometime in November 1981. 4
Teofilo Malong likewise testified for the prosecution. He stated that upon being informed that his housemaid Rebecca was raped by the accused,
he and his family, together with Rebecca, proceeded to the office of the INP Police Station of Malasiqui to report the crime and had Rebecca
physically examined by Dr. Wilfredo Claudio of the San Carlos General Hospital in that same afternoon. He further said that the following day, or
on 14 January 1982, he, Amelita and Rebecca gave their written statements to the police. 5
Submitted as evidence for the prosecution was the "Medico-Legal Certificate" issued by Dr. Claudio, indicating his findings of "hymenal
lacerations at 6, 10, 3 o'clock positions and one dead sperm cell seen on a slide examined." 6
In defense, the two (2) accused denied any involvement in the offense, both claiming they were nowhere at the scene of the crime when it was
committed.
More particularly, Fernandez claimed he was in his house at Taloy, Malasiqui weaving baskets when the incident happened. He admitted having
been formerly employed by Teofilo for about two (2) years to spray his mango trees and stated that during the period he was hired as such, he
lived alone in a small hut constructed under a mango tree. 7Conrado, on the other hand, alleged that when the crime was committed, he was at
Malimpuec, Malasiqui as he was hired to spray the mango trees of a certain Mr. Overo Bo. Malimpuec is his hometown but he admitted that he
used to go to Bo. Taloy, prior to the incident, as his parents-in-law lived there. 8
In the trial court's decision holding that the guilt of both accused had been established beyond shadow of any doubt, the following observations
and conclusions are made:
As already stated, the defense of both accused is alibi, which is not even corroborated by a single defense witness. It is well-
settled rule that alibi is the weakest defense that can be resorted to by an accused, as it is easy to concoct or fabricate. . . .
 . . . the alibi of both accused can not prevail over their positive identification by the prosecution witnesses (especially by
complainant victim of rape, Rebecca Soriano) as the perpetrators of the crime charged, they having testified in a clear,
straightforward, positive, truthful, and convincing manner, with no motive to fabricate this serious charge of rape or falsify the
truth. The alibi of both accused can not also be given credence or weight, considering that at the time of the rape, accused
Melquiades Fernandez was in his house at Bo. Taloy, which is just 150meters away from the house of the Malongs, where
Rebecca Soriano was raped; and accused Federico Conrado was at Bo. Malimpuec, which is only 9 kms. away from Bo. Taloy,
where Rebecca was raped that afternoon of January 13, 1982. The evidence disclose that said distance of 9 kms. can be
negotiated in only about 30 minutes by motorized vehicle, on good road connecting the 2 barrios.
xxx xxx xxx
The clear, positive, straightforward, and convincing testimony of rape victim Rebecca Soriano, as well as her immediate
reporting of the incident to the police authorities, just 30 minutes or so after she was raped that afternoon of January 13, 1982
and her giving of a sworn statement (Exh. A) on January 14, 1982 just the day after she was raped) which was  corroborated by
the statements on the same date (January 14, 1982) by prosecution witnesses Amelita Malong and Teofilo Malong, more than
convinces and satisfies this Court that the came charged was, in truth and fact, perpetrated by both accused. 9
Hence, the judgment of conviction, now the object of this appeal, the dispositive part of which reads as follows:
WHEREFORE, the Court finds each of the accused MELQUIADES FERNANDEZ, alias "Moding" and FEDERICO
CONRADO, guilty beyond reasonable doubt of two crimes of rape, aggravated by cruelty or ignominy, and, pursuant to law,
hereby sentences each of them to suffer two (2) penalties of death, to indemnify the aggrieved party, Rebecca M. Soriano, in the
amount of P12,000.00 as moral damages, without subsidiary imprisonment in case of insolvency, and to pay the costs. 10
In an effort to reduce the imposed penalty of death to reclusion perpetua(life imprisonment), without disproving the charges against them, the
two (2) accused assigned the following errors:
1. THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANTS FOR TWO (2) CRIMES OF RAPE.
2. THE LOWER COURT ERRED IN HOLDING THAT THE COMMISSION OF THE RAPE WAS ATTENDED BY THE
AGGRAVATING CIRCUMSTANCE OF CRUELTY OR IGNOMINY.
3. THE LOWER COURT ERRED IN SENTENCING EACH OF THE ACCUSED-APPELLANTS TO SUFFER TWO (2)
PENALTIES OF DEATH. 11
In the light, however, of the 1987 Constitution, specifically, Section 19(1), Article III thereof, under which a death penalty already imposed is
reduced to reclusion perpetua, Fernandez withdrew his appeal. 12 The lone appellant therefore is Conrado who insists on his appeal,
notwithstanding the advice of his counsel de officio to discontinue the appeal allegedly on the ground that "it has become moot and academic." 13
This Court nonetheless proceeded to consider accused-appellant's arguments for the sake of verifying the correctness of the sentence imposed. We
find no merit in the appeal.
First Assignment of Error
The trial court is accused of violating the rule against duplicity of offenses in that, the accused were convicted for two (2) crimes of rape even when
under the criminal complaint against them, there is only one (1) crime of rape alleged. The rule invoked in Section 13, Rule 110 of the Rules of
Court which states that there should be only one (1) offense charged in a criminal complaint or information, the purpose of which is to afford the
defendant a necessary knowledge of the charge so that he may not be confused in his defense. But it is likewise the rule that if ever duplicity of
offenses is committed, the same constitutes a ground for a motion to quash the complaint; and failure of the accused to interpose the objection
constitutes waiver. 14 Conrado, after he had been convicted by the court a quo, can no longer assail its judgment by raising this issue. Neither can
he claim, as he now does, that he was denied the information that he was to be tried for two (2) separate crimes of rape. The acts complained of, as
constituting the offenses, were stated in the 2 June 1982 complaint in ordinary and concise language that any person of common intelligence
would be able to understand and thereby know what acts he was to defend himself against.
The imposition on each of the accused of the penalty corresponding to two (2) crimes of rape is proper, because of the existence of conspiracy. As
clearly found by the trial court:
Both accused have, obviously, conspired and confederated to commit the crime, considering that they entered the bathroom
where Rebecca was, together and at the same time. Accused Fernandez then tied her with a piece of cloth tightly aroundher
neck, while accused Conrado held her hands placing them behind her body, to prevent her from struggling or resisting. Then
after accused Fernandez had raped Rebecca, accused Conrado raped her. Both accused, thereafter, fled from the scene of the
crime together and at the same time. All these circumstances show beyond shadow of any doubt conspiracy on the part of both
accused, which renders each of them liable for two (2) crimes of rape, . . . 15
In a long line of decided cases, it has been held by this Court that in multiple rape, each defendant is responsible not only for the rape
personally committed by him, but also for the rape committed by the others, because each of them (accused) cooperated in the
commission of the rape perpetrated by the others, by acts without which it would not have been accomplished. 16
Second Assignment of Error
The trial court is correct in appreciating the aggravating circumstance of ignominy because of the greater perversity displayed by the offenders.
The testimony of the examining physician that he did not find mud on the victim's private organ, does not necessarily belie the latter's
asseveration that the accused "plastered" (in the words of the lower court) mud on her private part. It is worthwhile mentioning that the victim
was examined and treated by Dr. Claudio at 3:55 p.m. or about almost two (2) hours after the rape was committed. 17 Given this circumstance, the
absence of mud in the victim's private part when she was examined by the physician, may be attributed to the possibility that the mud washed or
fell off even before the victim left the house for her physical examination. Moreover, Rebecca's testimony was corroborated by that of Amelita
Malong who swore that she saw mud smeared on Rebecca's private part when she (Amelita) saw Rebecca right after the incident. It is also difficult
to conceive why the offended party, young as she was, and with a chaste reputation, would go to the extent of fabricating this portion of her
testimony notwithstanding the consequent humiliation on her person and disgrace on her womanhood. We cannot but agree with the trial court's
finding that the offense was aggravated by ignominy. We are of the opinion, however that the word "cruelty" used in the dispositive portion of the
judgment, to describe an alternative aggravating circumstance, is unnecessary. The act of "plastering" mud on the victim's vagina right after she
was raped, is adequately and properly described as "ignominy" rather than "cruelty or ignominy."
Third Assignment of Error
Lastly, the original death sentence was correctly imposed pursuant to the provisions of the Revised Penal Code, namely, Article 335 which states
that when the crime of rape is committed by two (2) or more persons, the penalty shall be reclusion perpetua to death, and Article 63, which
provides that when the penalty prescribed is composed of two (2) indivisible penalties (as in this case) and the offense is attended by an
aggravating circumstance, the greater penalty shall be applied.
However, since the original death penalties imposed by the trial court are no longer imposable under the present Constitution and are reduced
to reclusion perpetua, the sentence on appellant Federico Conrado has to be reduced to two (2) penalties of reclusion perpetua. 18But the
indemnity he has to pay to the victim must be increased to P20,000.00 in line with prevailing jurisprudence.
WHEREFORE, the appealed judgment, as above modified, is AFFIRMED. With costs against the accused-appellant Federico Conrado.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
 
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.
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
The case was docked as Criminal Case No. 84253 and raffled off to Branch 156 of the said court.
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.
After trial, the RTC promulgated its decision 3 on 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.
In the service of his sentence, the accused shall be credited in full with the period of his preventive imprisonment. 4
From this adverse decision, the accused interposed an appeal which this Court accepted in a resolution dated 30 September 1991. 5
The factual antecedents of this case, as culled from the records, are as follows:
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
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."7 He 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
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.9 Tagifa 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. 10
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. 11 He made an oral admission of his participation in the commission of the crime. 12 He was
then endorsed to the Criminal Investigation Division (CID) for formal investigation. 13
The accused was asked if he could understand, read and write Tagalog, and he replied that he could. 14 The accused was likewise asked if he could
afford the services of counsel; he answered that he could not. 15 Upon 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. 16 Atty. Generoso then brought the accused away from the police
investigators so that the two of them could talk privately. 17 Atty. 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. 18 Afterwards, 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. 19 The accused gave then signed Exhibit "L," after which Atty.
Generoso also signed the same.
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?
Sagot: Opo.
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:
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?
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.
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?
s: Opo.
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).
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?
s: Robbery po lamang ang alam ko.
05. t: Saan at kailan naman nangyari itong sinasabi mong Robbery kung iyong natatandaan?
s: Sa bahay po ni Bgy. Captain Borja sa may Santolan, Pasig, MM.
06. t: Anong oras ninyo ba naman ginawa itong sinasabi mong nakawan?
s: Mga humigit kumulang alas 4:00 ng mdaling (sic) araw ika-10 ng Oktubre 1990.
07. t: Sino O' sinu-sino ba naman ang kasama mo ng nakawan ninyo ang bahay ni Bgy. Capt. Borja?
s: Si Alias GERRY po lamang dalawa.
08. t: Papaano naman ninyo pinagnakawan ang bahay nina Bgy. Capt. Borja?
s: Kami po nitong si Gerry ay nagdaan sa may bintana ng second floor ng bahay sa may harap ng basketball
court.
09. t: Anu-ano ba naman and kinuha ninyo sa loob ng bahay nina Bgy. Catp. (sic) Borja?
s: Ang kinuha ko po ay isang television, pero hindi ko po alam kung ano ang mga kinuha ni GERRY.
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).
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).
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?
s: Opo, si GERRY po na aking kasama nang magnakaw kami.
12. t: Papaano mo naman nasiguro na itong si Gerry ang pumatay kay Veronia?
s: Dahil po siya lamang ang naiwan sa itaas ng bahay.
13. t: Nasaan ba naman itong Veronica Borja ng pasukin ninyo ang bahay nina Bgy. Capt. Borja?
s: Siya po ay nakiya (sic) ko sa isang kuwarto sa itaas ng bahay.
14. t: Papaano ba naman pinatay ni Berry (sic) si Veronica Borja kung nalalaman mo?
s: Hindi ko po nakita dahil sa nauna akong umalis sa kanya.
15. t: Bukod sa inyong dalawa ni Gerry, mayroon pa bang ibang taong pumasok sa bahay nina Bgy. Capt.
Borja?
s: Wala na po, kaming dalawa lamang.
16. t: Nalaman mo ba kung saan ma-aaring matagpuan itong si Gerry?
s: Sa Nueva Ecija po, pero hindi ko alam kung saang lugar duon.
17. t: Wala na muna akong itatanong sa iyo may nais ka pa bang idadagdag O babawasin sa iyong salaysay?
 s: Wala na po muna.
18. t: Ikaw ba ay tinakot, sinaktan, binayaran O' pinangakuan upang magbigay ng iyong salaysay dito?
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?
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.
The version of the accused is as follows:
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.
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.
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
In his brief,22 the accused submits the following assignment of errors:
1
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.
2
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.
4
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.
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. 23 Parojinog 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, 25 this 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. Generosoin 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.
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. 26 If 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.
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. 29 The accused likewise impugns the testimony of Prudencio Bagasina as "inconsistent, highly improbable and exaggerated."
These contentions are as hollow as those offered to support the first assignment of error.
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, 30 we 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.
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. 31 It 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
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.
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?
A My brother in law, sir.
Q Could you identify him, Mr. witness?
A Yes, sir.
Q Will you point him now?
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
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
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.
The aggravating circumstance of unlawful entry 37 was 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 38 was present in the commission of the crime as the darkness was taken advantage of by the malefactors and such circumstances
facilitated their evil designs.
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.
SO ORDERED.
 People of the Philippines vs. Dante Bartulay
FIRST DIVISION
[G.R. No. 83696 : December 21, 1990.]
192 SCRA 621
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,  vs. DANTE BARTULAYAccused-Appellant.
 
DECISION
 
MEDIALDEA, J.:
 
Subject of this appeal is the decision of the Regional Trial Court, Branch 49, Puerto Princesa City, in Criminal Case No. 3042 entitled "People vs.
Dante Bartulay" convicting appellant Dante Bartulay of the crime of robbery with homicide under an amended information which reads:
"The undersigned accuses ROSALIO LAGUARDIA alias "ROLLY", DANTE BARTULAY alias "TOTOY", BALTAZAR BERAN alias "BOY BUNGAL",
as principals, and RAYMUNDO BARTULAY alias "MANDING", as accessory, of the crime of "ILLEGAL POSSESSION OF FIREARM WITH
ROBBERY WITH HOMICIDE," committed as follows:
'That on or about the 6th day of September, 1979, and for sometime prior thereto, in Puerto Princesa City, Philippines, and within the jurisdiction
of this Honorable Court, accused Rosalio Laguardia, Dante Bartulay and Baltazar Beran, conspiring and confederating together and mutually,
helping one another, did then and there wilfully, unlawfully and feloniously have in their possession, custody and control the following firearm(s),
to wit: One (1) .380 cal., automatic pistol and One (1) 22 cal. revolver with Serial No. 64618, without having the necessary license and/or permit
from the proper authorities; that while in possession of aforedescribed firearms at the aforementioned place and date, the said accused conspiring
and confederating together and mutually helping one another, with intent of gain and without the consent and against the will of the owners, by
means of force, violence and intimidation and with the use of aforementioned firearms and motor vehicle, did then and there wilfully, unlawfully
and feloniously take, steal and carry away from one MIGUEL 'MIKE' CHUA the amount of P50,000.00 cash, more or less, and P37,000.00 in
checks, more or less and a panel truck worth P100,000.00 in the total value of P187,000.00 more or less, belonging to said MIGUEL 'MIKE'
CHUA and the FORTUNE TOBACCO CORPORATION, to the damage and prejudice of the latters (sic) in the aforesaid amount; that on the
occasion of said robbery and for the purpose of enabling them to take said amount and panel truck the said accused, in pursuance of their
conspiracy, with treachery, evident premeditation, taking advantage of nighttime, with the use of a motor vehicle and with intent to kill, did then
and there wilfully, unlawfully, and feloniously assault, attack and shoot one MIGUEL 'MIKE' CHUA, thereby inflicting upon the latter mortal
gunshot wounds which were the direct and immediate cause of his death; that accused Raymundo Bartulay, having full knowledge of the
commission of the aforementioned robbery with homicide and without having participated therein either as principal or accomplice, take part
subsequent to its commission by then and there profiting himself and/or assisting the abovenamed principal accused to profit by the effects of the
crime and also by concealing and hiding the cash money and checks taken from said Miguel 'Mike' Chua in order to prevent its discovery by the
authorities.'
"CONTRARY TO LAW with the aggravating circumstances of evident premeditation, treachery, use of a motor vehicle and nighttime." (pp. 1-2,
Original Records)
Since appellant evaded arrest, his co-conspirators Rosalio Laguardia and Baltazar Beran, were convicted ahead of him and are now serving
sentence at the National Penitentiary Muntinlupa, Metro Manila. On April 28, 1985, appellant was arrested at Agno St., Tatalon, Quezon City by
elements of the Manila Police Force (pp. 6-7; 293, Ibid).
At the arraignment, appellant with the assistance of Attys. Gregorio Austria and Ma. Buen Consejo, pleaded GUILTY to the crime of robbery; NOT
GUILTY to homicide; hence, a conditional plea of NOT GUILTY was entered into the records (p. 28, Ibid).
The facts as gleaned from the records are as follows:
Benjamin Caca, driver of Fortune Tobacco Corporation and principal witness for the prosecution, testified that: On September 6, 1979, at about
10:00 in the evening, the victim, Miguel `Mike' Chua, salesman of the Fortune Tobacco Corporation, was driving a panel truck, together with him,
helper Edgardo Aniar and friend Frank Morante, passing along kilometer 36 southroad, a zigzag road inside the Iwahig Penal Colony, on their way
to Puerto Princesa City. The group had come from Brooke's Point, Palawan where they delivered cigarettes and collected payments for previous
sales amounting to more or less P100,000.00. At a distance of five (5) meters, from the approaching truck, appellant Dante Bartulay and Baltazar
Beran, co-accused, motioned to Mike Chua to stop. When the truck stopped at the middle of the road, co-accused Beran approached the victim at
the pretext of borrowing a screw driver. The victim told Beran to wait as he will park the truck on the side of the road. At this point, appellant and
Beran pulled out their guns and announced a holdup. They ordered the four persons to alight from the truck. Beran directed him, Edgardo Aniar
and Frank Morante to stay at the right side of the road some five (5) meters away from the truck while appellant separately led the victim about
two meters away from them on the same side of the road. The four of them were ordered to lie down facing the ground. Appellant with one foot,
stepped on the shoulder of the victim while pointing a gun at him. Beran then divested him and Frank Morante of their watches and wallets while
appellant took Chua's watch and wallet. Appellant asked the victim where his collection was. The latter told appellant that the money is placed at
the back of the driver's seat. Appellant then ordered Beran to get the money. The latter did and gave the money contained in a paper bag to
appellant. Thereafter, Beran demanded the keys of the truck from the victim, who gave them to appellant, who in turn gave them to Beran. Beran
then ordered the companions of the victim to go inside the panel truck. Some twenty five (25) seconds after they were locked up inside the truck,
two successive shots were fired. The truck then started to move and while in motion, he opened the secret exit door of the panel and was able to
jump out, rolling on the ground until he reached the canal. He was able to hitch a ride up to Narra, Palawan where he reported the incident to the
police authorities (Hearing of Sept. 13, 1985; T.S.N., pp. 5-20). The next day, September 7, 1979, the cadaver of Miguel Chua was examined by Dr.
Rufino Ynzon, the City Health Officer of Puerto Princesa City. His findings were contained in a necropsy report as follows::-cralaw
"POSTMORTEM-FINDINGS
"1. Wound, gunshot, (entrance) roughly circular hole, 8-9 mm. in diameter, surrounded by a contuso-abraded collar, located at the occipital
region, 3 inches above from the occipital protroberance.
"2. (a) Wound, gunshot (exit) hole which is irregular in shape, about 1 inch long, located at the left frontal bone, 2 1/2 inches above left superior
orbital ridge.
(b) Wound, gunshot (exit) hole which is irregular in shape, about 3/4 inch, long, 1 1/2 inches above wound of exit-(a).
"3. Wound, punctured-lacerated, about 1/3 inch in diameter, located at the left inferior orbital ridge.
"4. Contusion with hematoma, located at the left superior orbital portion.
"5. Contusion with hematoma, located at the right superior orbital portion.
"6. Abrasions, located at the left arm, medial third, anterior portion.
"7. Abrasions, located at the left elbow, posterior portion.
CAUSE OF DEATH:
HEMORRHAGE, MASSIVE, INTRA-EXTRA CRANIAL, SECONDARY TO GUNSHOT WOUND." (Exhibit "B", Folder of Exhibits).
Appellant took the PAL second flight in Puerto Princesa to Manila in the morning of September 7, 1979 (T.S.N., p. 127; Hearing of July 21, 1986;
Ibid., p. 198, Hearing of October 30, 1987).
M/Sgt. Eugenio Enriquez, head of the Intelligence and Operations of the Palawan Constabulary Command, stated that the police authorities were
able to investigate Anthony Pediapco who informed them of the presence of one "Boy Bungal" at the scene of the crime as he even borrowed some
tools from him that night. After ascertaining that "Boy Bungal" was Baltazar Beran, police authorities traced his whereabouts and arrested him on
September 8, 1979. Recovered from him was P4,500.00 which he admitted was part of his share from the booty (Exhibits "F" and "F-1", "G" and
"G-1" and "H" and "H-1" Folder of Exhibits). Beran executed a confession before the police authorities on the day he was arrested (Exhibits "P"
and "Q", Ibid.) and another statement on September 9, 1979 (Exhibit "Q", Ibid). Based on said confessions, the police authorities were able to
recover from the roof of the kitchen of one Rosalio Laguardia, the revolver he used during the holdup, the motorcycle owned by Laguardia, which
was used as a getaway vehicle, and some part of the share of appellant from the loot entrusted by him to his brother Raymundo Bartulay who,
upon investigation by the police, voluntarily informed them of the place where it was hidden (Exhibits "I"-"N", Ibid.; T.S.N., pp. 55-76, Hearing of
Sept. 24, 1985; Ibid., pp. 86-98, Hearing of Feb. 14, 1985).chanrobles virtual law library
At the trial, appellant admitted that he and Beran only agreed to stage a holdup. He portrayed himself as the one who guarded the companions of
Miguel Chua and that he was instructed by Beran to get the money from behind the driver's seat. He stated that upon finding the bag containing
the money, he heard two successive shots; he even resented why Baltazar Beran had to kill Miguel Chua as they merely planned to rob him; he was
responsible in saving the lives of the three passengers by pleading to Baltazar Beran to spare them (T.S.N., pp. 178, 184, Hearing of Oct. 29, 1987).
On March 8, 1988, the trial court rendered its decision convicting appellant of the crime of robbery with homicide, the dispositive portion of which
states:
"WHEREFORE, the Court find (sic) and so founds (sic) Dante Bartulay guilty beyond reasonable doubt of the crime of Robbery with Homicide
defined and penalized under Article 294 (1) of the Revised Penal Code, as principal by direct participation, hereby sentences him to suffer the
penalty of RECLUSION PERPETUA, with all accessories provided for by law, to indemnify the heirs of Miguel Chua the amount of Seven Hundred
Twenty Thousand (P720,000.00) Pesos for the expected earnings, Ten Thousand (P10,000) Pesos for moral damages and Ten Thousand
(P10,000.00) Pesos for exemplary damages and to pay the costs." (p. 55, Rollo).
In seeking the reversal of his conviction, appellant claims that the trial court erred: (1) in its findings that he was the one who shot Miguel Chua;
(2) in finding him guilty of the complex crime of robbery with homicide despite lack of evidence; and (3) in failing to appreciate that he
endeavored and in fact was successful in preventing Baltazar Beran from killing the three companions of Miguel Chua. Appellant admits
participation in the commission of robbery but vehemently and specifically denies any participation in the killing of Miguel Chua (pp. 63-64,
Rollo).
The evidence indubitably shows that appellant and co-accused Beran agreed to commit robbery at Km. 36, Zigzag Road, Iwahig Penal Colony,
Puerto Princesa City, two (2) weeks prior to the incident. On September 6, 1979, both appellant and Beran succeeded in robbing Miguel Chua of
P87,000.00 and the victim was shot to death 25 seconds subsequent to his three companions' entry into the van. There was no eyewitness to the
killing of the said victim. Neither was there a showing that appellant endeavored to prevent the killing of Chua. A conspiracy in the statutory
language exists when two or more persons avow to an agreement concerning the commission of a felony and decide to commit it (People v. Taaca,
G.R. No. 35652, September 29, 1989).
Appellant tries to exculpate himself of criminal liability by pointing to co-accused Beran as the one who fired the shots and killed Chua. When the
conspiracy to commit the crime of robbery was conclusively shown by the concerted acts of the accused and homicide was committed as a
consequence thereof, all those who participated are liable as principals in the robbery with homicide, although they did not actually take part in
the homicide, unless it appears that they attempted to prevent the killing. The question as to who actually robbed or who actually killed is of no
moment since all of them would be held accountable for the crime of robbery with homicide (People v. Salvador, G.R. No. 77964, July 26, 1988,
163 SCRA 574 [1988]). (Emphasis supplied).:- nad
Moreover, the following actuations of appellant after the shots were fired clearly show that he is a co-conspirator: (a) immediately after the firing
of the shots, he followed the truck driven by Baltazar Beran in the motorcycle; (b) when they reached Montible, Baltazar Beran abandoned the
truck, rode in the motorcycle with appellant and proceeded to the house of appellant's brother in Puerto Princesa City where they divided the loot
(T.S.N., pp. 184, 196-199, Hearing of Oct. 30, 1987). Where conspiracy has been established, a showing as to who inflicted the fatal blow is not
required. (People v. Alvarez, G.R. No. 70446, January 31, 1989, 169 SCRA 730).
Finally, appellant admitted that when he heard the news that he was being hunted by police authorities in connection with the crime, he
immediately bought a plane ticket at the PAL office in Puerto Princesa City and took the second flight to Manila in the morning of September 7,
1979. His sudden departure is indicative of guilt. The guilty flee when no man pursueth but the innocent are as bold as a lion (People v. Espinosa,
G.R. No. 72883, December 20, 1989).
As correctly found by the trial court, the use of motor vehicle by the appellant and his co-conspirator aggravated the commission of the offense
since the vehicle was used to facilitate their escape from the scene of the crime.
The penalty of robbery with homicide prescribed in Article 294 of the Revised Penal Code is reclusion perpetua to death. Since only one
aggravating circumstance attended the commission of the offense, the greater penalty that is death shall be applied pursuant to Article 63 of the
Revised Penal Code. However, this penalty cannot be imposed presently in view of the 1987 Constitution. Hence, the penalty of reclusion perpetua
was correctly imposed by the trial court upon the appellant.
The trial court correctly convicted accused of robbery with homicide only despite the fact that the amended information charged all the four
accused namely, Rosalio Laguardia, Dante Bartulay and Baltazar Beran of the crime of illegal possession of firearm with robbery with homicide.
The information alleges that the four accused by conspiring and confederating together, unlawfully have in their possession one .380 cal.
automatic pistol and one 22 cal. revolver with Serial No. 64618 without the necessary license or permit from the proper authorities and that while
in the possession of said firearms, the four accused, by conspiring together, committed robbery with homicide.
The information herein is violative of Section 13 Rule 110 of the Rules on Criminal Procedure which states that a complaint or information must
charge but one offense except in certain cases. The four accused are charged with two separate offenses of illegal possession of firearms and
robbery with homicide. When each one of two offenses committed is punishable by two different laws, they cannot be charged in one information
as a complex crime but must be regarded as two separate and distinct offenses, each one to be the subject of separate informations. When
duplicity of offenses exists in an information the accused must present his objection by filing a motion to quash the information on the ground of
duplicity of offenses. If the accused fails to object and goes to trial under the information which contains a description of more than one offense,
the general rule is he thereby waives the objection and may be found guilty of and should be sentenced for, as many offenses as are charged in the
information and proved during trial (People v. Medina 59 Phil. 134; People v. Miana 50 Phil. 771). This rule however shall apply only if the accused
is formally arraigned and required to plead on all the offenses as are charged in the information. Otherwise, the accused cannot be convicted of the
offenses with respect to which he was not properly arraigned.
In the case at bar, the accused was not formally arraigned as to the offense of illegal possession of firearm. The information wrongly complexed the
robbery with homicide with the special offense of illegal possession of firearm. In effect, the accused is charged with two distinct offenses. He
should therefore be arraigned and required to plead to the two offenses. Records show that during the arraignment, the accused pleaded guilty to
robbery and not guilty to homicide. Hence, the trial court entered a conditional plea of not guilty for him to the offense of robbery with homicide,
without requiring the accused to enter his plea to the illegal possession of firearms (p. 28, Records). And in the rendition of judgment, the trial
court convicted him only of robbery with homicide as there was no proper arraignment of the accused concerning the other offense. In one case,
this Court held that where the defendant is charged with three separate offenses, and he pleaded guilty to the two offenses without pleading to the
third offense charged, the court cannot render judgment of conviction on the third offense without requiring him to plead (US v. Sobreviñas 35
Phil. 32). This is based on the principle that a defendant is legally placed on trial only when issue upon the information which charges such an
offense has been joined after arraignment by his plea of not guilty thereto (People v. Ylagan 58 Phil. 851).
We shall sustain the monetary award, consisting of loss of earnings, made by the trial court in favor of the heirs of the victim as this matter was not
raised in issue in this appeal. Further, this Court grants the amount of P50,000.00 as death indemnity to be paid by the appellant to the heirs of
the victim, in accordance with the new policy of this Court laid down in the Resolution of this Court en banc dated August 30, 1990 and in People
v. Daniel Sison, G.R. 86455, September 14, 1990, in addition to the moral and exemplary damages awarded by the trial court.:-cralaw
ACCORDINGLY, except for the above mentioned modification, the decision appealed from convicting the accused appellant of the crime of
robbery with homicide and sentencing him to suffer the penalty of reclusion perpetua with all the accessories provided for by law is AFFIRMED.
SO ORDERED.

People of the Philippines vs. Ruben E. Ilaoa, et al.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
 
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." 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 compadreRuben 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
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. 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.
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.  12Then, an hour later, or at three o’clock in the
morning, the tricycle was returned with bloodstains on the floor.
For his defense, appellant Ruben Ilaoa does not dispute the testimony of an eyewitness that he was driving the tricycle at past two o’clock in the
morning with the sack in the sidecar. However, he claims that the sack contained buntot ng pusa, a local term for marijuana, not a human body,
which he delivered to a designated place in Fields Avenue as a favor to his compadre Nestor de Loyola whom he could not refuse. Moreover, it was
the vomit discharged by his drinking companions that was being swept clean by his girlfriend at the entrance of their apartment in the early
morning of 5 November 1987, not blood as the witnesses asseverated.
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
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
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. 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.
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
mayormedium, 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.