14. Absalon Cuya Sr.
,
[G.R. Nos. 140538-39. June 14, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs.
GODOFREDO B. ADOR and DIOSDADO B.
ADOR III, appellants.
DECISION
PUNO, J.:
The quiescence of the fading day was shattered
by bursts of gunfire, startling the otherwise tranquil
but sanguine folks of Pacol, Naga City. As the
fusillade of shots ceased and the wisp of smoke
cleared, frolicking promenaders stumbled upon
Ompong Chavez who was gasping his last, clutching
his intestines which had spewed out from his
bloodied stomach. He did not in fact reach the
hospital alive. A breath away, Abe Cuya lay lifeless
on the pavement. He died on the spot. For the
twinned deaths, the Adors, six (6) of them, were
haled to court.
In two (2) separate informations,[1] Diosdado Sr.,
[2]
 Diosdado Jr., Diosdado III, Godofredo, Rosalino
and Allan, all surnamed Ador, were charged with the
murder of Absalon Abe S. Cuya III and Rodolfo
Ompong S. Chavez.  proceeded to the crime scene to conduct an
However, only four (4) of the six (6) Adors, namely,
Diosdado Sr., Godofredo, Rosalino and Allan, were
taken into custody. The two (2), Diosdado Jr. and
Diosdado III, remained at large.  sketches.[7] SPO1 Fernandez on the other hand
Trial thus proceeded only against Diosdado Sr.,
Godofredo, Rosalino and Allan who all pleaded not
guilty. Diosdado Sr. is the father of Diosdado Jr.,
Diosdado III and Godofredo, while Rosalino is the
father of Allan. Diosdado Sr. and Rosalino are
brothers.[4]
In its effort to secure the conviction of the
accused, the prosecution presented a total of sixteen
(16) witnesses:
1. Mercy Beria,
2. Larry Cado,
3. Medico-Legal Officer of Naga City Dr. Joel
S. Jurado,
4. Police Inspector Ma. Julieta Razonable,
5. SPO1 Benjamin Barbosa,
6. SPO3 Augusto Basagre,
7. Major Ernesto Idian,
8. Inspector Reynaldo F. Fulgar,
9. SPO1 Noli Reyes Sol,
10. SPO3 Eduardo C. Bathan,
11. Inspector Vicente C. Lauta,
12. Ernani Castillo,
13. PO3 Augusto I. Nepomuceno,
15. Efren Chavez and
16. Pablo Calsis.
From the evidence of the prosecution, it appears
that on March 10, 1997, at around seven-thirty in the
evening, while Mercy Beria, Larry Cado and some
eleven (11) others were leisurely walking along
Kilometer 11 on their way to Zone 1, Kilometer 10,
Pacol, Naga City, to attend a wedding anniversary,
they heard several gunshots. Shortly after, they met a
certain Pablito Umali who told them that Ompong
Chavez had been shot. They ran to Chavez straight
off and saw him already lying on the ground, about 1
meters away from a lighted electric post, holding on
to his intestines which were starting to come
out. Beria shook Chavez and asked him what had
happened. Chavez replied tinambangan kami na
Ador (We were ambushed by the Adors) and
requested that he be brought to the hospital as he was
dying. About eight (8) meters from where Chavez
was, in a dark spot, lay Abe Cuya, dead.
Upon learning of the shooting incident through
their radio communication, SPO1 Benjamin Barbosa,
together with PO2 Alexander Diaz, immediately
investigation. SPO3 Eduardo Bathan and SPO1
Wilfredo Fernandez, among others, were already
there.[6] SPO1 Barbosa collected some pieces of
evidence, took some pictures and made some
interviewed one Cresenciana Mendoza in her house
which was nearby, and when he heard people shout
that Chavez was still alive, he brought Chavez to the
hospital but the latter expired on the way.[8]
That same evening, upon being informed that
the Adors had a long-standing grudge against the
Cuyas, SPO1 Barbosa sought the help of then
Barangay Captain Josue Perez to accompany him to
the residence of the Adors. They arrived at the Adors
at around ten oclock that evening and spoke with
their patriarch, Diosdado Ador Sr. SPO1 Barbosa
looked for the other male members of the Ador
family but was told by Diosdado Sr. that they were
already asleep. Diosdado Sr. nevertheless promised to
present them the following day.[9]
The following morning, March 11, 1997,
Barangay Captain Perez accompanied the Adors,
namely, Diosdado Sr., Diosdado III, Godofredo,
Rosalino, Allan and Reynaldo, to SPO1 Barbosa at
the PNP Central Police Headquarters. The Adors
were informed of their constitutional rights to remain
silent and to choose their own counsel. They were
then brought to the PNP Crime Laboratory at the
Provincial Headquarters and subjected to paraffin
tests.[10] On the way to the crime laboratory,
Godofredo told his police escort that he had been
entrusted with a handgun which he kept in his
residence.[11] The information was relayed to Major
Ernesto Idian, then Deputy Chief of Police of Naga
City, who ordered PO3 Augusto I. Nepomuceno to
accompany him in recovering the gun because
Godofredo said that he would turn in the gun only to
PO3 Nepomuceno. Thus, Major Idian, PO3
Nepomuceno and some others accompanied
Godofredo to the latters residence.
Upon reaching the Ador residence, Godofredo,
together with PO3 Nepomuceno, went to their
backyard, retrieved the gun from under a fallen
coconut trunk and turned it in to the latter. Godofredo
allegedly told the police that he fired the said gun
outside their house on the night of March 10 after he
heard several gunshots.[12] PO3 Nepomuceno
identified the gun as a caliber .38 paltik handgun
which had no serial number.[13] PO3 Nepomuceno
then turned over the handgun to Major Idian[14] who
likewise identified it as a .38 caliber revolver. Major
Idian returned the handgun to PO3 Nepomuceno for
ballistic and paraffin examination.[15] Thereafter, PO3
Nepomuceno placed his initials on the gun and put it
in his private locker while preparing the documents
for the examinations and the possible filing of a case
for Illegal Possession of Firearm.[16]
Also, on the same day, March 11, 1997, Dr. Joel
S. Jurado, Medico-Legal Officer of Naga City,
conducted an autopsy on the bodies of Chavez and
Cuya. Based on the autopsy reports, Dr. Jurado
testified that Cuya sustained five (5) gunshot wounds
and died from cardio-pulmonary arrest, massive
intra-thoracic, intra-abdominal, intra-cranial
hemorrhage secondary to multiple gunshot wounds
penetrating the heart, brain, lungs and digestive tract.
[17]
 Chavez on the other hand had three (3) gunshot
wounds and died from traumatic shock and massive
intra-abdominal hemorrhage secondary to multiple
gunshot wounds penetrating the right kidney and the
internal abdominal organs.[18] Dr. Jurado further
testified that that he recovered a slug from Cuyas
head three (3) days after he conducted the autopsy -
after Cuyas relatives called his attention to a
protruding mass in Cuyas head. Thus, he had Cuyas
cadaver sent back to the funeral parlor, opened it and
was able to extract a deformed .38 caliber slug which
he thereafter submitted to the City Prosecutors
Office.[19]
Police Inspector Reynaldo Fulgar, Chief of the
Firearm Identification Section of the PNP Crime
Laboratory, Camp Ola, Legaspi City, testified that
based on the ballistic examination he conducted on
the bullets submitted to his office, the .38 caliber slug
recovered from Cuyas head matched the three (3) .38
caliber test bullets which were test-fired from the
suspected firearm surrendered by Godofredo. He
however averred that the .38 caliber bullets were
actually fired from a .357 Smith and Wesson
Magnum homemade revolver without serial number,
and not from a .38 caliber revolver.[20]
The paraffin casts taken from the Adors were
also transmitted to the PNP Crime Laboratory
Services for examination and yielded the presence of
gunpowder nitrates, thus 
(1) Diosdado A. Ador both hands,
positive;
(2) Diosdado B. Ador III right hand,
positive; left hand, negative;
(3) Godofredo B. Ador right hand,
positive; left hand, negative;
(4) Rosalino A. Ador both hands, positive;
(5) Reynaldo T. Ador both hands,
negative;[21]
(6) Allan T. Ador both hands, positive. [22]
Absalon Cuya Sr., father of deceased Cuya III, said
that the killing of his son was driven by the long-
standing feud between the Adors and his family. He
said that Diosdado Jr. had earlier accused his other
son Liberato of frustrated homicide for allegedly
stabbing him (Diosdado Jr.).[23] Then, Adelina, a
daughter of Diosdado Sr., filed a case for abduction
with multiple rape against him, Absalon III, Rayne
and Josephine, all surnamed Cuya, after the romantic
relationship between Adelina and his deceased son
Absalon III turned sour.[24] He also presented official
receipts of the funeral and burial expenses which
amounted to P10,230.00.[25]
Efren Chavez, brother of deceased Chavez,
likewise spoke of the animosity between the Chavez
and the Ador families. He produced a certification
from the PNP Naga City Police Station that
on February 17, 1997, a blotter was entered in the
Daily Record of Events showing that deceased
Chavez reported a certain Ricardo Ador who while
under the influence of liquor caused him physical
injury.[26] The witness likewise presented an official
receipt showing that the family spent P3,500.00 for
the funeral of the deceased Chavez. [27] After
presenting Chavez, the prosecution rested its case.
On April 7, 1998, the four (4) accused filed a
demurrer to evidence for utter lack of evidence.
[28]
 On May 13, 1998, the trial court dismissed the
cases against Diosdado Sr., Rosalino and Allan but
denied the demurrer to evidence against Godofredo 

WHEREFORE, this Court finds the demurrer to
evidence to be justified for the accused Diosdado A.
Ador, Allan T. Ador and Rosalino Ador, hence, the
same is hereby granted insofar as these accused are
concerned. Said accused therefore, namely: Diosdado
A. Ador, Allan T. Ador and Rosalino Ador are
ACQUITTED in Crim. Cases Nos. 97-6815 and 97-
6816. The bailbonds posted for their provisional
liberty are hereby cancelled.
Trial of the case insofar as Godofredo B. Ador is
concerned shall proceed.
SO ORDERED.[29]
Thus, trial proceeded against Godofredo.
For his defense, Godofredo denied any
participation in the killings of Cuya and Chavez. He
said that on March 10, 1997, at around seven
oclock in the evening, he heard several gunshots
while he was having dinner with his wife and four (4)
children in their house in Pacol, Naga City. Since his
wife advised him not to go out anymore, he slept
after dinner. The following day, while he was
gathering pili nuts, his long-time friend Dominador
Bautista arrived and asked him to go down from the
tree. Bautista wanted to borrow money and on his
way to see him, found a gun by the footpath. Bautista
gave the gun to him. It was his first time to hold a
gun. He tried it out and fired three (3) times. After
firing the gun, he removed the empty shells from its
chambers and threw them away. He then wrapped the
gun with plastic and hid it under a coconut
trunk. Bautista left when he told him that he had no
money. He then continued to gather pili nuts until
Major Idian and three (3) other policemen came.
Godofredos father told him that they were being
suspected of killing Chavez and Cuya the night
before. Thus, they went to the provincial
headquarters, were subjected to paraffin testing and
made to sign a blank bond paper. After that, they
went back to the central police station. At the central
police station, Godofredo narrated to a certain
Calabia that that morning, his friend Bautista found a
gun along the road and gave it to him. He hid the gun
under a coconut trunk. Calabia relayed the
information to Major Idian who directed PO3
Nepomuceno to go with Godofredo to get the
gun. Godofredo led PO3 Nepomuceno to where he
hid the gun, retrieved it and handed it to the
latter. They then returned to the police headquarters
where he was jailed. He asserted that the gun
presented in court is different from the gun he
surrendered to the police.[30]
Bautista corroborated Godofredos story. He
testified that he found the gun which Godofredo
yielded to PO3 Nepomuceno.He said that he was on
his way to see Godofredo to borrow money when he
chanced upon the handgun on the pathway. He gave
the gun to Godofredo and the latter tested it by
pulling its trigger. After firing the gun, Godofredo
removed the empty shells and threw them. Godofredo
then wrapped the gun with plastic and hid it under a
fallen coconut trunk.[31]
Meanwhile, Diosdado Jr. was arrested
on October 9, 1998, at Barangay Doa, Orani, Bataan,
and committed to the Naga City Jail on November
17, 1998, while Diosdado III surrendered to the court
and was committed to the same city jail on November
22, 1998. On November 23, 1998, both Diosdado Jr.
and Diosdado III were arraigned and entered a plea of
not guilty. Hence, trial against them commenced and
proceeded jointly with the case of the remaining
accused, Godofredo.
The prosecution presented Pablo Calsis[32] as a
witness against Diosdado Jr. and Diosdado III. Calsis
testified that on March 10, 1997, at around 7:30 in the
evening, he dropped by the house of Cresenciana
Mendoza whom he fondly called Lola Kising at
Kilometer 10, Pacol, Naga City, before going home
from work. After asking permission from her to go
home and while about to urinate outside her house, he
heard several gunshots. He ducked by
a sineguelas tree at a nearby flower plantation. As he
was about to stand up, he saw Disodado Jr., Diosdado
III, Godofredo and another unidentified man run
away. Godofredo was carrying a short firearm while
Diosdado Jr. had a long firearm. [33] He saw Chavez
and Cuya lying on the road. Chavez was about five
(5) meters away from where he stood while Cuya was
ten (10) meters away. The place was illuminated by a
bright light from an electric post. There were no other
people around. Calsis ran away for fear that he might
be identified by the assailants. He heard Chavez
mumbling but shirked nevertheless. [34]
Calsis narrated to Absalon Cuya Sr. what he
saw only after about one (1) year and nine (9)
months. Fear struck him.[35] He maintained that he
knew the assailants because he and his wife lived in
the house of Lola Kising after they got married.
[36]
Immense fear prevented him from attending to
Chavez, even while he heard him murmuring, and
from informing the families of the victims of the
incident that very same night. He was about to tell the
Chavez family the following morning but was
counseled by his Lola Bading, the sister of his Lola
Kising, against getting involved in the case. [37] Calsis
and his family left their residence in Pacol one (1)
month after the incident because he was afraid the
assailants might have identified him. [38] Even Lola
Kising left her residence two (2) months after the
incident.[39] It was only after he learned from Absalon
Cuya Sr. that the trial court dismissed the cases for
lack of evidence insofar as some of the original
accused were concerned that he took pity on the
respective families of the victims who have failed to
get justice for the death of their loved ones.[40]
In defense, Diosdado Jr. testified that on March
10, 1997, he was in Marikina City working as a
warehouseman and timekeeper of the Consuelo
Builders Corporation. He was there the whole time
from February 15, 1997, until March 24, 1997.
[41]
Pablo Aspe, a co-worker of Diosdado Jr.,
corroborated the latters testimony. He said that
on February 15, 1997, he and Diosdado Jr. left
Pacol, Naga City, together to work in Consuelo
Construction in Marikina City. They were with each
other in Marikina City the whole time from February
15, 1997, until he (Aspe) went home
to Naga City on March 22, 1997. While
in Marikina City, they resided and slept together in
their barracks at the construction site.[42]
Diosdado III also took the witness
stand. On March 10, 1997, at around seven oclock in
the evening, he was at their house at Zone 1,
Pacol, Naga City, watching television with his
parents and cousins Reynaldo and Allan when they
heard gunshots. They ignored the gunshots, continued
watching television and slept at eight oclock. The
following day, at around six oclock in the morning,
while he was fetching water, four (4) policemen
arrived at their house and talked to his
father. Thereafter, his father called him, his brother
Godofredo, uncle Rosalino and cousins Allan and
Reynaldo. The policemen then requested all of them
to go to the PNP Central Police Headquarters for
investigation regarding the killings of Chavez and
Cuya. Upon reaching the police headquarters, they
were interviewed by the media and afterwards
brought to the provincial headquarters where they
were subjected to paraffin tests. They were then
brought back to the Central Police Headquarters and
later allowed to go back home to Pacol.
Then, sometime in October, 1997, his father
was arrested by the police. Diosdado III was at their
residence when his father was picked up. Only his
father was taken by the police. He continued to reside
in their house until April, 1998, when he transferred
to Sagurong, San Miguel, Tabaco, Albay, to work as
a fisherman. On November 21, 1998, he received a
letter from his father telling him to come home. Thus,
he went home the following day. On November 23,
1998, he surrendered to the court.[43]
The defense also presented Barangay Captain
Josue Perez and an uncle of Diosdado Jr. and
Disodado III, Jaime Bobiles.Perez testified that he
was the barangay captain of Pacol from 1982 until
May, 1997. In 1996, Cresenciana Mendoza left their
barangay permanently to live with her children
in Manila because she was sickly and alone in her
house. He said that Mendozanever came back. He
does not know any Pablo Calsis and the latter could
not have talked to Mendoza on March 10, 1997,
because at that time, Mendoza was not there and her
house was already abandoned.[44] Similarly, Bobiles
confirmed the testimony that Diosdado III worked as
a fisherman in Tabaco and stayed in his residence
from May 1, 1998, until November 1998 when
Diosdado III received a letter from his father and had
to go home.[45]
In rebuttal however, prosecution witness SPO1
Fernandez asserted that he interviewed Cresenciana
Mendoza that fateful night of March 10, 1997.
[46]
 After the rebuttal witness was presented, the cases
were finally submitted for decision.[47]
On August 2, 1999, the trial court held that a
chain of circumstances x x x lead to a sound and
logical conclusion that indeed the accused (Diosdado
III and Godofredo) committed the offense
charged[48] and as such rendered judgment 
WHEREFORE, premises considered, this court finds
the accused Godofredo B. Ador and Diosdado B.
Ador III GUILTY beyond reasonable doubt of the
crime of MURDER, defined and penalized under the
provisions of Article 248 of the Revised Penal Code,
as amended by Republic Act 7659 in Criminal Cases
Nos. 97-6815 and 97-6816, hereby sentences the said
accused Godofredo B. Ador and Diosdado B. Ador
III to suffer the penalty of RECLUSION PERPETUA
in Criminal Case No. 97-6815; RECLUSION
PERPETUA in Criminal Case No. 97-6816, to pay
the heirs of Absalon Abe Cuya III P25,000 each by
way of actual damages and P50,000 in each criminal
case by way of indemnity. To pay the heirs of
Rodolfo Ompong Chavez the sum of P50,000 in each
criminal case by way of indemnity, such accessory
penalties as provided for by law and to pay the
cost. For insufficiency of the prosecution to prove the
guilt of the accused Diosdado B. Ador, Jr. beyond
reasonable doubt, he is hereby ACQUITTED in
Crim. Cases Nos. 97-6815 and 97-6816.
The Jail Warden of the Naga City District Jail is
hereby ordered to forthwith release from its custody
the accused Diosdado B. Ador, Jr., unless his further
detention is warranted by any other legal cause or
causes.
SO ORDERED.[49]
Hence, this joint appeal interposed by Disodado
III and Godofredo. They maintain that the trial court
gravely erred in convicting them of murder based on
circumstantial evidence. The testimony of
prosecution witness Pablo Calsis that he saw them
running away from the scene of the crime was
concocted. The handgun turned in by Godofredo was
not the same gun presented by the prosecution during
the trial. The unusual discovery of a slug from the
head of the deceased - three (3) days after the autopsy
was conducted and after the cadaver was turned over
to the family of the victim - was quite doubtful. Even
the supposed dying declaration of the victim
specifically pointed to neither Diosdado III nor
Godofredo. And, the trial court erred in admitting in
evidence those taken against them in violation of
their constitutional rights to counsel during custodial
investigation.[50]
The rules of evidence allow the courts to rely on
circumstantial evidence to support its conclusion of
guilt.[51] It may be the basis of a conviction so long as
the combination of all the circumstances proven
produces a logical conclusion which suffices to
establish the guilt of the accused beyond reasonable
doubt.[52] All the circumstances must be consistent
with each other, consistent with the theory that all the
accused are guilty of the offense charged, and at the
same time inconsistent with the hypothesis that they
are innocent and with every other possible, rational
hypothesis except that of guilt.[53] The evidence must
exclude each and every hypothesis which may be
consistent with their innocence.[54] Also, it should be
acted on and weighed with great caution.
[55]
 Circumstantial evidence which has not been
adequately established, much less corroborated,
cannot by itself be the basis of conviction.[56]
Thus, for circumstantial evidence to suffice, (1)
there should be more than one circumstance; (2) the
facts from which the inferences are derived are
proven; and (3) the combination of all the
circumstances is such as to produce a conviction
beyond reasonable doubt.[57] Like an ornate tapestry
created out of interwoven fibers which cannot be
plucked out and assayed a strand at a time apart from
the others, the circumstances proved should
constitute an unbroken chain which leads to one fair
and reasonable conclusion that the accused, to the
exclusion of all others, is guilty beyond reasonable
doubt.[58] The test to determine whether or not the
circumstantial evidence on record are sufficient to
convict the accused is that the series of the
circumstances proved must be consistent with the
guilt of the accused and inconsistent with his
innocence.[59] Accordingly, we have set guidelines in
appreciating circumstantial evidence: (1) it should be
acted upon with caution; (2) all the essential facts
must be consistent with the hypothesis of guilt; (3)
the facts must exclude every theory but that of guilt;
and (4) the facts must establish such a certainty of
guilt of the accused as to convince the judgment
beyond a reasonable doubt that the accused is the one
who committed the offense.[60]
Measured against the guidelines set, we cannot
uphold the conviction of the accused based on the
circumstantial evidence presented.
The first circumstance which the prosecution
sought to prove is that the accused were supposedly
seen fleeing from the locus criminis, armed with their
respective weapons. Thus, the trial court, gleaning
from the evidence presented, found that [w]hen about
to stand, Calsis saw Godofredo B. Ador, Diosdado B.
Ador, Jr. and Diosdado B. Ador III, and a person
going to the direction of the house of the Adors
which is about 500 meters away.[61] In fact,
prosecution witness Calsis allegedly even saw
Diosdado Jr. carrying a long firearm but x x x could
not determine what kind of gun it was.[62] However,
the trial court acquitted Diosdado Jr. But only rightly
so. For, Calsis had difficulty in identifying the Adors
notwithstanding his assertion that he knew and saw
them personally. We defer to his direct examination 
ATTY. TERBIO (Private Prosecutor):
Q. You said you recognized the persons
running, could you tell us their
names?
PABLO CALSIS:
A. Yes sir.
Q. Name them?
A. Godofredo Ador, Jr., Sadang III.
Q. How about the others?
A. I could not tell his name but if I see him
I could identify him.
Q. The 4 persons whom you saw that
night, if they are present in court,
please point them out?
A. Yes sir.
Q. Point particularly Godofredo Ador, Jr.?
A. (Witness pointed or tapped the shoulder
of a person inside the courtroom who
answered by the name Diosdado
Ador, Jr.)
Q. How about this Sadang III?
A. (Witness tapped the shoulder of a man
who answered by the name
of Diosdado Ador III.)
Q. Likewise, point to the third person?
A. (Witness pointed to a man)
COURT:
Delete that portion from the record, he
is not on trial.
ATTY TERBIO:
Q. You said you saw 4 persons, is the
fourth one inside the courtroom?
A. None sir.
Q. But if you saw that person, will you be
able to recognize him?
 A. Yes sir.
Q. Why do you know these persons whom
you just tapped the shoulder?
x x x x x x x x x
A. I know these persons having lived in
the house of Lola Kising.
Q. How far?
A. Around 100 meters.
Q. On the said date and time and place,
you said you saw them running, how
far were you from them?
A. Around 10 meters. (Emphases supplied)
[63]
The testimony of Calsis, if at all, could hardly
be used against Diosdado III whom he miserably
failed to positively identify during trial. In fact, the
acquittal of Diosdado Jr. by the trial court renders the
entire testimony of Calsis in serious doubt. Calsis
was presented to positively identify the assailants
who were supposedly personally known to him and
were just ten (10) meters away from him. It puzzles
us no end why he cannot even identify the Adors in
open court.
Thus, despite Calsis assertion that Diosdado Jr.
was one of the assailants, the trial court doubted him
and gave credence to the alibi of Diosdado Jr. that the
latter was in Nangka, Marikina, when the killings
took place. The trial court favored the unbiased
testimony of Aspe who said that Diosdado Jr. worked
as a timekeeper and warehouseman with him at the
Consuelo Construction at Nangka, Marikina,
from February 15, 1997, until March 22, 1997, and
went home to Pacol only on May 27, 1997. This
ruling is strengthened by the fact that on the morning
following the killings, all the male members of the
Ador family were brought to the police headquarters
for paraffin examination and Diosdado Jr. was not
among them.[64] We thus respect the finding of the
trial court that indeed Diosdado Jr. was not at the
scene of the crime absent any indication that the
lower court overlooked some facts or circumstances
which if considered would alter the outcome of the
case.[65]
While it is true that the courts are not bound to
accept or reject an entire testimony, and may believe
one part and disbelieve another,[66] our Constitution
and the law mandate that all doubts must be resolved
in favor of the accused. Calsis committed an obvious
blunder in identifying the supposed assailants which
this Court cannot simply let go. On the contrary, it
creates reasonable doubt in our minds if Calcis really
saw the persons he allegedly saw or if he was even
where he said he was that evening. For, it is
elementary that the positive identification of the
accused is crucial in establishing his guilt beyond
reasonable doubt. That is wanting in the instant case.
What is more, Calsis asseverations, at the
outset, could no longer be used against Godofredo
since both the prosecution and the defense have
already rested and the case against Godofredo was
already submitted for decision when Calsis was
presented.[67] Neither can they still be used against
Diosdado Jr. who was already acquitted by the trial
court.
Both Diosdado III and Godofredo denied the
charges hurled against them. But, while it is true that
alibi and denial are the weakest of the defenses as
they can easily be fabricated, [68] absent such clear and
positive identification, the doctrine that the defense of
denial cannot prevail over positive identification of
the accused must yield to the constitutional
presumption of innocence.[69] Hence, while denial is
concededly fragile and unstable, the conviction of the
accused cannot be based thereon.[70]The rule in
criminal law is firmly entrenched that verdicts of
conviction must be predicated on the strength of the
evidence for the prosecution and not on the weakness
of the evidence for the defense.[71]
The second circumstance is the handgun turned
in by Godofredo. But this was bungled by the
prosecution. Major Idian, Deputy Chief of Police of
the Naga City Police Station, to whom the handgun
was turned over after Godofredo surrendered it,
identified it as a caliber .38 revolver, thus 
ATTY TERBIO (Private Prosecutor):
Q. What kind of firearm was it?
MAJOR IDIAN:
A. Revolver handgun, caliber .38 with 6
rounds ammunition.
Q. What is the caliber?
A. .38 caliber.[72]
Similarly, PO3 Nepomuceno who then had been
with the PNP for eight (8) years already and to whom
Godofredo turned in the handgun, likewise identified
it as a caliber .38, thus 
ATTY TERBIO (Private Prosecutor):
Q. What is the caliber of that gun?
PO3 NEPOMUCENO:
A. .38 caliber.[73]
However, Insp. Fulgar, Chief of the Firearm
Identification Section of the PNP Crime Laboratory,
testified that [t]he indorsement coming from the City
Prosecutors Office x x x alleged that the .38 caliber
live bullet was fired from a .38 caliber revolver. But
our office found out that the firearm was not a .38
caliber revolver but a .357 caliber revolver.[74]
Could it be that the handgun was replaced
before it was turned over to the PNP Crime
Laboratory? While the prosecution traced the trail of
police officers who at every stage held the gun
supposedly recovered from Godofredo, it never
clarified this discrepancy which is quite glaring to
ignore. It is difficult to believe that a Deputy Chief of
Police and a police officer of eight (8) years will both
mistake a .357 caliber for a .38 caliber
handgun. Likewise, a Chief of the Firearm
Identification Section of the PNP Crime Laboratory
cannot be presumed not to know the difference
between the two (2) handguns. Suffice it to say that
the prosecution failed to clear up the variance and for
this Court to suggest an explanation would be to
venture into the realm of pure speculation, conjecture
and guesswork. Thus, faced with the obvious
disparity in the suspected firearm used in the crime
and that which was turned over by Godofredo, his
declaration that the handgun presented in court was
different from the gun he gave to the police deserves
serious, if not sole consideration.
Consequently, even the third circumstance, the .
38 caliber slug supposedly recovered from the head
of the victim three (3) days after the autopsy was
conducted loses evidentiary value as its source is now
highly questionable. It has become uncertain whether
the deformed slug was fired from the .38 caliber
revolver turned in by Godofredo or from a .357
caliber handgun as attested to by the Chief of the
Firearm Identification Section of the PNP Crime
Laboratory.
Neither can this Court rely on the dying
declaration of the dying Chavez nor on the results of
the paraffin tests to convict either Diosdado III or
Godofredo or both. To refute these, we need not go
far and beyond the 13 May 1998 Order of the trial
court partially granting the demurrer to evidence filed
by the accused  In fine, the admissions made by Godofredo to
The only direct evidence introduced by the
prosecution is the testimony of Mercy Beria, that she
heard Rodolfo Ompong Chavez say tinambangan
kami na Ador (We were ambushed by the
Adors). Sad to say, no specific name was ever
mentioned by the witness. Neither was she able to tell
how many (persons) Adors were involved. This
testimony if it will be given credence may inculpate
any person with the family name Ador as
assailant. The prosecution therefore was not able to
establish with moral certainty as to who of the Adors
were perpetrators of the offense x x x x Paraffin tests
are not conclusive evidence that indeed a person has
fired a gun.
The fact that the accused-appellants tested positive of
gunpowder nitrates does not conclusively show that
they fired the murder weapon, or a gun for that
matter, for such forensic evidence should be taken
only as an indication of possibility or even of
probability, but not of infallibility, since nitrates are
also admittedly found in substances other than
gunpowder. (People v. Abellarosa, G.R. No. 121195,
27 November 1996; People v. de Guzman, 250
SCRA 118; People v. Nitcha, 240 SCRA 283)[75]
Thus, while a dying declaration may be
admissible in evidence, it must identify with certainty
the assailant. Otherwise, it loses its
significance. Also, while a paraffin test could
establish the presence or absence of nitrates on the
hand, it cannot establish that the source of the nitrates
was the discharge of firearms a person who tests
positive may have handled one or more substances
with the same positive reaction for nitrates such as
explosives, fireworks, fertilizers, pharmaceuticals,
tobacco and leguminous plants.[76] In People v.
Melchor,[77] this Court acquitted the accused despite
the presence of gunpowder nitrates on his hands 
[S]cientific experts concur in the view that the result
of a paraffin test is not conclusive. While it can
establish the presence of nitrates or nitrites on the
hand, it does not always indubitably show that said
nitrates or nitrites were caused by the discharge of
firearm. The person tested may have handled one or
more of a number of substances which give the same
positive reaction for nitrates or nitrites, such as
explosives, fireworks, pharmaceuticals and
leguminous plants such as peas, beans and alfalfa. A
person who uses tobacco may also have nitrate or
nitrite deposits on his hands since these substances
are present in the products of combustion of
tobacco. The presence of nitrates or nitrites,
therefore, should be taken only as an indication of a
possibility but not of infallibility that the person
tested has fired a gun.
Major Idian and PO3 Nepomuceno including the gun
in question cannot be considered in evidence against
him without violating his constitutional right to
counsel. Godofredo was already under custodial
investigation when he made his admissions and
surrendered the gun to the police authorities. The
police had already begun to focus on the Adors and
were carrying out a process of interrogations that was
lending itself to eliciting incriminating statements and
evidence: the police went to the Ador residence that
same evening upon being informed that the Adors
had a long-standing grudge against the Cuyas; the
following day, all the male members of the Ador
family were told to go to the police station; the police
was also informed of the dying declaration of
deceased Chavez pointing to the Adors as the
assailants; the Adors were all subjected to paraffin
examination; and, there were no other suspects as the
police was not considering any other person or group
of persons. The investigation thus was no longer a
general inquiry into an unsolved crime as the Adors
were already being held as suspects for the killings of
Cuya and Chavez. 
 Consequently, the rights of a person under
custodial investigation, including the right to counsel,
have already attached to the Adors, and pursuant to
Art. III, Sec. 12(1) and (3), 1987 Constitution, any
waiver of these rights should be in writing and
undertaken with the assistance of
counsel. Admissions under custodial investigation
made without the assistance of counsel are barred as
evidence.[78] The records are bare of any indication
that the accused have waived their right to counsel,
hence, any of their admissions are inadmissible in
evidence against them. As we have held, a suspects
confession, whether verbal or non-verbal, when taken
without the assistance of counsel without a valid
waiver of such assistance regardless of the absence of
such coercion, or the fact that it had been voluntarily
given, is inadmissible in evidence, even if such
confession were gospel truth.[79]Thus, in Aballe v.
People,[80] the death weapon, a four-inch kitchen
knife, which was found after the accused brought the
police to his house and pointed to them the pot where
he had concealed it, was barred from admission as it
was discovered as a consequence of an uncounseled
extrajudicial confession.
With hardly any substantial evidence left, the
prosecution likewise played up the feud between the
Adors on one hand and the Chavezes and the Cuyas
on the other hand, and suggested that the Adors had
an axe to grind against the Chavezes and the
Cuyas. For sure, motive is not sufficient to support a
conviction if there is no other reliable evidence from
which it may reasonably be adduced that the accused
was the malefactor.[81] Motive alone cannot take the
place of proof beyond reasonable doubt sufficient to
overthrow the presumption of innocence.[82]
All told, contrary to the pronouncements of the
trial court, we cannot rest easy in convicting the two
(2) accused based on circumstantial evidence. For,
the pieces of the said circumstantial evidence
presented do not inexorably lead to the conclusion
that they are guilty.[83] The prosecution witness failed
to identify the accused in court. A cloud of doubt
continues to hover over the gun used and the slug
recovered. The dying declaration and paraffin
examination remain unreliable. Godofredos
uncounseled admissions including the gun he turned
in are barred as evidence. And, the supposed motive
of the accused is simply insufficient. Plainly, the facts
from which the inference that the accused committed
the crime were not proven. Accordingly, the guilt of
the accused cannot be established, more so to a moral
certainty. It is when evidence is purely circumstantial
that the prosecution is much more obligated to rely
on the strength of its own case and not on the
weakness of the defense, and that conviction must
rest on nothing less than moral certainty.[84]
Consequently, the case of the prosecution has
been reduced to nothing but mere suspicions and
speculations. It is hornbook doctrine that suspicions
and speculations can never be the basis of conviction
in a criminal case. [85] Courts must ensure that the
conviction of the accused rests firmly on sufficient
and competent evidence, and not the results of
passion and prejudice.[86] If the alleged inculpatory
facts and circumstances are capable of two (2) or
more explanations, one of which is consistent with
the innocence of the accused, and the other consistent
with his guilt, then the evidence is not adequate to
support conviction.[87] The court must acquit the
accused because the evidence does not fulfill the test
of moral certainty and is therefore insufficient to
support a judgment of conviction.[88] Conviction must
rest on nothing less than a moral certainty of the guilt
of the accused.[89]The overriding consideration is not
whether the court doubts the innocence of the
accused but whether it entertains a reasonable doubt
as to his guilt.[90] It is thus apropos to repeat the
doctrine that an accusation is not, according to the
fundamental law, synonymous with guilt the
prosecution must overthrow the presumption of
innocence with proof of guilt beyond reasonable
doubt. The prosecution has failed to discharge its
burden. Accordingly, we have to acquit.
IN VIEW WHEREOF, the Decision of the
Regional Trial Court of Naga City, Br. 25, in Crim.
Cases Nos. 97-6815 and 97-6816 dated August 2,
1999, finding accused-appellants Godofredo B. Ador
and Diosdado B. Ador III guilty beyond reasonable
doubt of two (2) counts of murder and imposing on
them the penalty of reclusion perpetua, is hereby
REVERSED and SET ASIDE.Accused-appellants
Godofredo B. Ador and Diosdado B. Ador III are
ACQUITTED on reasonable doubt and their
IMMEDIATE RELEASE is hereby ORDERED
unless they are being held for some other legal cause.
SO ORDERED.
[G.R. No. 140679. January 14, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs.
MANNY A. DOMINGCIL, appellant.
DECISION
CALLEJO, SR., J.:
For the sale and delivery of one (1) kilo of
marijuana to a poseur-buyer, the appellant Manny
Domingcil was charged before the Regional Trial
Court of Laoag City, Branch 16, for violation of
Section 4, Article II of Republic Act No. 6425 in an
Information, the accusatory portion of which reads:
That on or about the 12th day of August, 1994, in the
City of Laoag, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, not
authorized by law, did then and there willfully,
unlawfully and feloniously sell and deliver mixed
dried marijuana leaves, tops and seeds in brick form,
wrapped with paper placed in a plastic bag, a
prohibited drug, weighing 800 grams, to a poseur-
buyer in a buy-bust operation conducted by Police
Officers of Laoag City, in violation of the aforesaid
law.[1]
Upon arraignment on August 29, 1994, the
appellant, assisted by counsel, pleaded not guilty to
the offense charged.[2] The case thereafter proceeded
to trial.
The Case for the Prosecution
On August 12, 1994, at around 11:00 a.m.,
Belrey Oliver, an employee of Ferds Upholstery Shop
located in Barangay 2, Laoag City, arrived at the
Laoag Police Station. He reported to Chief
Investigator SPO4 Rodrigo Ventura that the appellant
went to their shop looking for a buyer of
marijuana. Oliver recounted telling the appellant that
he knew of someone who was interested and ready to
buy marijuana, and instructing him to bring one (1)
kilo of the substance to a store located in front of the
Divine Word College of Laoag at General Segundo
Avenue, Laoag City at around 1:30 p.m. of that same
day.[3]
Acting on the said report, SPO4 Ventura formed
a team to conduct a buy-bust operation against the
appellant. He assigned SPO1 Orlando Dalusong as
the poseur-buyer, and SPO2 Marlin Ramos, SPO2
Warlito Maruquin, SPO1 Rovimanuel Balolong,
SPO1 Loreto Ancheta, and SPO2 Rosemarie Agustin,
all assigned at the Investigation Section of the Laoag
Police Station as back-up. The marked buy-money
consisting of one P500-bill bearing Serial No. G-
242745 was recorded in the police blotter in
accordance with standard operating procedure.[4]
Except for SPO1 Dalusong and Oliver, the rest
of the team left the precinct on board two (2) owner-
type jeeps and posted themselves near the Macmac
Store, across the gate of the Divine Word
College. Five minutes later, SPO1 Dalusong and
Oliver arrived at General Segundo Avenue. [5] Oliver
immediately approached the appellant, who was then
standing between the Macmac Store and a xerox
center, and introduced poseur-buyer SPO1 Dalusong,
who was sporting casual clothes and slippers: Pare,
daytoy tay gumatangen (Friend, this is the buyer). At
this point, the appellant who was carrying an orange
plastic bag, brought out a brick-like item wrapped in
newspaper. He handed the item to SPO1 Dalusong,
who forthwith checked the same by making a small
hole through it. Convinced that the brick-like item
was indeed marijuana, SPO1 Dalusong handed
the P500 bill to the appellant. He thereupon scratched
his head, a signal to the back-up men that the
transaction had been consummated.[6]Momentarily,
the back-up officers, who had earlier positioned
themselves separately in different strategic locations
near the poseur-buyer, rushed to the scene and
arrested the appellant. SPO1 Dalusong then handed
the orange plastic bag containing the suspected
marijuana to SPO4 Ventura. SPO2 Ramos frisked the
appellant and recovered the buy-money from the
latters pocket. Thereafter, the appellant was brought
to the headquarters where he was booked, and the
incident was recorded in the police blotter.[7] The
suspected marijuana was brought to and initially
examined by Dr. Joseph Adaya, an accredited
physician of the Dangerous Drugs Board (DDB), who
certified that the item comprised of three genuine
mixture of marijuana leaves with seeds.[8]
On September 5, 1994, SPO4 Ventura sent a
letter to the Commanding Officer of the PNP Crime
Laboratory Service, Camp Diego Silang, San
Fernando, La Union, requesting for the examination
of samples of the suspected marijuana taken from the
appellant.[9] On September 6, 1998, SPO1 Loreto
Ancheta, evidence custodian of the Laoag City, PNP,
delivered the orange plastic bag containing the
suspected marijuana to the PNP provincial crime
laboratory service in Camp Juan, Laoag City. The
bag, together with SPO4 Venturas letter-request, was
received by SPO3 Diosdado Mamotos.[10] On
September 8, 1994, SPO3 Mamotos forwarded the
laboratory request and the confiscated item, and were
duly received by SPO4 Tampos.[11] The latter, in turn,
handed the item to Police Superintendent Theresa
Ann B. Cid, Forensic Chemist of the Crime
Laboratory Center, Region I, Camp Diego Silang,
Carlatan, San Fernando, La Union, who conducted an
examination of representative samples extracted from
the suspected marijuana confiscated from the
appellant.[12] On the basis of her examination,
Superintendent Cid issued Chemistry Report No. D-
074-94 with the following findings:
SPECIMEN SUBMITTED :
One (1) block of suspected marijuana fruiting tops
weighing eight hundred grams (800) wrapped with
newspaper pages contained in an orange plastic bag.
...
PURPOSE OF LABORATORY EXAMINATION :
To determine the presence of marijuana on the above-
mentioned specimen.
F I N D I N G S :
Qualitative examination conducted on the above-
mentioned specimen prove POSITIVE result to the
test for marijuana, a prohibited drug.[13]
The Case for the Appellant
The appellant interposed the twin defenses of
denial and alibi. He testified that sometime in the first
week of August 1994, he and Ernesto Gamiao went
to the City of Laoag to canvass the price for the
repair of the upholstery of a passenger jeepney. On
that occasion, they befriended a certain Belrey Oliver
who was an employee of the Ferds Upholstery
Shop. In the course of their conversation, Oliver
asked the appellant where he came from and what his
occupation was. Upon being told that he helped in
harvesting mangoes in Cagayan, Oliver immediately
offered refreshments to Gamiao and the
appellant. While taking their snacks, Oliver inquired
whether they wanted to back up the promotion of
certain policemen who, in the future, might be able to
return the favor to them. When the appellant asked in
what way they could extend help, Oliver suggested
that they look for somebody in Cagayan from whom
they could buy one (1) kilo of marijuana. He agreed
to Olivers suggestion. The latter handed to him the
amount of P700.00 to cover the purchase of the
marijuana. The appellant immediately went to the
terminal bound for Cagayan to look for somebody
from that province who could be of help. When he
could not find anyone, he decided to personally take
the trip. He then instructed Gamiao to just go home to
Vintar and inform his mother that he was going to
Cagayan.
The appellant thereafter took a bus bound for
Tuguegarao, Cagayan. After three (3) days, he was
able to buy one kilo of marijuana for P300.00. When
he returned to Laoag City on August 12, 1994, he
went to Ferds Upholstery Shop at 11:30 a.m. to
inform Oliver that he had procured the order. After
seeing the marijuana, Oliver instructed him to take it
and meet him at about 12:30 p.m. of the same day in
front of the Divine Word College where they would
hand over the marijuana to the policemen they
intended to help.
At about 12:00 noon, the appellant arrived at
Macmacs Store and took his merienda. Momentarily,
Oliver arrived alone on a tricycle. Oliver summoned
him and they walked southward, away from the
Macmacs Store, looking for the policemen to whom
they would deliver the marijuana. They walked back
northward, at which point they encountered an
owner-type jeep which suddenly stopped. He was
nonplussed when Oliver grabbed him by the neck,
seized his knapsack containing the marijuana, and
pushed him inside the jeep. He was made to sit beside
the driver with another policeman, while Oliver
seated himself at the back seat with another
policeman. The jeep they were riding was followed
by a patrol car. Still dazed at the sudden turn of
events, he asked Oliver four times, Why is it that this
is now happening to me(?), but Oliver did not
respond. At the police station, he was immediately
locked up. That afternoon, SPO4 Ventura and SPO2
Ramos, accompanied by Oliver, brought him to the
City Fiscals Office. He was later brought to the
provincial hospital where he was subjected to a
physical check-up. That was the last time he saw or
heard of Oliver.[14]
On July 9, 1999, the court a quo rendered
judgment,[15] the dispositive portion of which reads :
WHEREFORE, premises considered, the Court is
morally convinced beyond reasonable doubt that the
accused Manny Domingcil is GUILTY under Sec. 4
of Art. II, RA No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972. The
quantity of marijuana involved is more than 750
grams; hence, in accordance with Sec. 20, the penalty
provided for in Sec. 4, shall be applied. The accused
is hereby sentenced to reclusion perpetua with all its
accessory penalties and to pay the costs.
Hence, the present appeal.
The appellant submits the following assignment
of errors:
1. The lower Court erred in finding that the accused
was not instigated in looking for marijuana and
bringing it to Laoag.
2. The lower Court erred in finding that the accused
received the FIVE HUNDRED PESO bill, despite his
denial that he received the same and that his denial
cannot prevail over the positive testimony of the
police officers who are presumed to be regularly
performing their official duties, there being no
improper motive attributed to them.
3. The lower Court erred in convicting the accused.[16]
The appellant contends that contrary to the
collective testimonies of the prosecution witnesses,
Oliver instigated him to buy marijuana. The trial
court erred in not giving credence and probative
weight to his testimony and in considering the
testimonies of the witnesses of the prosecution.
The appeal has no merit.
Time and again, this Court has ruled that the
evaluation by the trial court of the credibility of
witnesses is entitled to the highest respect and will
not be disturbed on appeal unless certain facts of
substance and value were overlooked which, if
considered, might affect the result of the case. The
reason for this rule is that the trial court is in a better
position to decide thereon, having personally heard
the witnesses and observed their deportment and
manner of testifying during the trial.[17] After a
thorough and careful review of the records of this
case, we find that the guilt of the appellant was
sufficiently established by the evidence, and the trial
courts judgment is well-supported by law and
jurisprudence.
What is material to the prosecution for illegal
sale of dangerous drugs is the proof that the sale
actually took place, coupled with the presentation in
court of the corpus delicti as evidence.[18] In this case,
the prosecution adduced proof beyond reasonable
doubt that the appellant sold one (1) kilo of marijuana
to poseur-buyer SPO1 Orlando Dalusong in the
entrapment operation.
q How has the case involving drug or
marijuana involving the accused
brought to your attention or to your
office, for that matter?
a Our informant by the name of Belrey
Oliver tipped of (sic) to us that he
met Manny Domingcil at the
Upholstery Shop along Ablan
Avenue and he also informed us that
he ordered P500.00 worth of
marijuana.
q Who ordered from whom?
a Belrey Oliver from Manny Domingcil,
sir.
q By the way, who was the chief of the
Intelligence Section of Laoag City
PNP, at that time?
a SPO4 Ventura, sir.
q Was he present when the informant
Belrey Oliver tipped you of (sic)
about this matter?
a Yes, sir.
q And because of that information from
Belrey Oliver, what did your Chief,
SPO4 Ventura do?
a SPO4 Ventura made or designed a plan
purposely to conduct a buy-bust
operation, sir.
q Where will the operation take place?
a In front of Macmac Store, particularly, in
front of the Divine Word College of
Laoag, sir.
q And did you have any participation in
that operation?
a Yes, sir, I acted as the poseur buy (sic).
q At what time was the operation
scheduled to be executed?
a 1:30 P.M. of August 12, 1994, sir.
q For the said operation, what
preparations, if any, did your group
take?
a Our Chief of Intelligence made a plan,
sir.
q What was the plan?
a To conduct the buy-bust operation, sir.
q And you said that you were to act as
poseur buyer, anything was given to
you in connection with your specific
participation?  q And so, what was the reaction of Manny
a I was given the buy-bust money in the
amount of P500.00, sir.
q And what will you do with that P500.00?
a The Chief of Intelligence, SPO4 Ventura
directed me to reflect the serial
number of the money in the police
blotter, the P500.00 to be used as
marked money.
q And after the serial number was entered
in the police blotter, what next did
you do?
a Before we went out of the station, the
team or companions of SPO4
Ventura went ahead to the place
where the transaction will take place,
sir.
q And who were the companions of SPO4
Ventura who went ahead?
a Rosemarie Agustin, SPO2 Marlin Ramos
and SPO4 Balolong, sir, while Oliver
and myself were the ones who went
together.
q Who went ahead to the place where the
sale will take place?
a The team of SPO4 Ventura, sir.
q And did you reach the place where the
transaction will take place?
a Yes, sir.
q Before you started to the place where the
transaction will take place in front of
the Divine Word College of Laoag,
did you know then the face of Manny
Domingcil?
a No, sir.
q How did you know his face then?
a Belrey Oliver, the informant, informed
me that the person is Manny
Domingcil.
q So, what you are saying is: when you
arrived at the scene where the
transaction would take place, Manny
Domingcil was already there and that
Belrey Oliver pointed him to you?
a Yes, sir.
q After that, what did you do with Belrey
Oliver?
a We went near Manny Domingcil, sir.
q And after or as soon as you were near
him, what happened next?
a Belrey Oliver introduced Manny
Domingcil to me as the buyer, sir.
q What did Oliver say?
a Pare, daytoy tay gumatangen, (which
when translated into english[sic]
means): Pare, this is the buyer.
Domingcil?
a Before that I asked Manny Domingcil if
he has the stuff that was ordered.
q And what did he say?
a Manny Domingcil said: There is, Pare.
q By the way, who ordered the stuff from
Manny Domingcil?
a Belrey Oliver, sir.
q Did you ask Oliver where he ordered
that from Manny Domingcil?
a Yes, sir.
q Where?
a At the Upholstery Shop at Ablan
Avenue, sir.
q That was what Oliver told you when he
ordered the stuff?
a Yes, sir.
q When Manny Domingcil said: There is,
pare, what transpired next, if any?
a I told him: Can I look at it and he
brought out a wrapped brick-type
form wrapped in a newspaper inside
an orange plastic bag.
q And after he had brought out the said
thing, what did you do with it?
a I checked the contents if it is real
marijuana, sir.
q You said the thing was wrapped with
newspaper and you said you checked
its contents?
a Yes, sir, I opened the wrapper, by
making a small hole at the side.
q And what was the result of your
inspection?
a I found out that it was real marijuana, sir.
q And, so what did you do then?
a After I found out that it was marijuana I
handed to Manny Domingcil the
P500 peso bill, sir.
q And as soon as you have handed the
P500.00 bill, what did you do next?
a I gave the signal to my companions, sir.
q And what did your companions do when
you gave the signal?
a They apprehended Manny Domingcil,
sir.
q What was your signal?
a I scratched my head, sir.
q And, what was your attire at that time
you bought the brick-type marijuana
from Manny Domingcil?
a Ordinary clothes, sir, wearing slippers.
q And all the time during your transaction
with Manny Domingcil, where was
Belrey Oliver?
a At my side, sir.
q And during the transaction, did Belrey
Oliver say anything?
a None, sir.
q And after giving your signal to your
companion police officers who were
nearby and they rushed to your place
where you were, what happened?
a They apprehended Manny Domingcil,
sir.
q And what about the marijuana which you
said Manny Domingcil sold to you?
a I handed it to SPO4 Rodrigo Ventura,
sir.
q And what about the P500 peso bill, do
you know what happened to it?
a SPO2 Marlin Ramos recovered the P500
peso bill from the pocket of Manny
Domingcil.
q And after arresting Manny Domingcil
where did your group go?
a To the police station, sir.
q Do you know if any records were made
to your police station when you
returned or arrived there?
a Yes, sir.
q What for example?
a They made a request ... we reflected in
the police blotter the apprehension of
Manny Domingcil, the confiscation
of the marijuana and the recovery of
the marked money in the amount of
P500.00.
q Was the serial number of the P500 bill
you recovered from the pocket of
Manny Domingcil recorded?
a Yes, sir.
q And do you know what happened to the
stuff later on after you returned to the
police station?
a They made a request to Dr. Adaya to
conduct an initial examination on the
confiscated marijuana, sir.[19]
The foregoing testimony of SPO1 Orlando
Dalusong was corroborated on material points by
SPO4 Rodrigo Ventura, then Chief of the Intelligence
Section of the PNP of Laoag City who organized and
conducted the operation and was part of the buy-bust
team itself.[20] SPO4 Ventura remained steadfast and
unwavering on cross-examination despite intense
grilling by the defense counsel.[21]
Police Superintendent Theresa Ann Cid, the
Forensic Chemist assigned at the PNP Crime
Laboratory Center at San Fernando, La Union,
confirmed[22] Dr. Joseph Adayas initial finding[23] that
the substance seized from the appellant was indeed
marijuana, a prohibited drug.
It was also fairly established by SPO3 Diosdado
Mamotos[24] and SPO1 Loreto Ancheta[25] that the
confiscated marijuana was the same substance
examined by the forensic chemist and later presented
as evidence in court.
The testimonies of the principal prosecution
witnesses complement each other, giving a complete
picture of how the appellants illegal sale of the
prohibited drug transpired, and how the sale led to his
apprehension in flagrante delicto. Their testimonies
establish beyond doubt that dangerous drugs were in
the possession of the appellant who had no authority
to possess or sell the same. More importantly, all the
persons who obtained and received the confiscated
stuff did so in the performance of their official
duties. Unless there is clear and convincing evidence
that the members of the buy-bust team were inspired
by any improper motive or were not properly
performing their duty, their testimonies on the buy-
bust operation deserve full faith and credit.[26]
The appellants bare denial of the crime charged
and his barefaced claim that he was merely instigated
by Oliver into procuring the marijuana cannot prevail
over the straightforward and positive testimonies of
the prosecution witnesses. It is incredible that the
appellant, who had just met Belrey Oliver in the
course of his canvass for the upholstery of his
brothers jeepney, would readily leave his errand
behind and allow a stranger to talk him into buying a
prohibited drug, a known criminal activity for which
he could be prosecuted, and if convicted, sentenced
to reclusion perpetua. All this he was willing to risk,
in exchange for an empty promise of alleged future
favors from another who was also unknown to the
appellant. The appellant supposedly traveled to and
spent almost three days in Tuguegarao, Cagayan, just
to be able to accommodate a newly found
acquaintance, who handed the appellant the meager
sum of P700.00 for the intended purpose. The Court
cannot give credence to such a preposterous stance as
advanced by the appellant and confirmed by his
supposed corroborative witness, Ernesto Gamiao.
It is axiomatic that for testimonial evidence to
be believed, it must not only proceed from the mouth
of a credible witness but must also be credible in
itself such that common experience and observation
of mankind lead to the inference of its probability
under the circumstances. In criminal prosecution, the
court is always guided by evidence that is tangible,
verifiable and in harmony with the usual course of
human experience and not by mere conjecture or
speculation. Testimonies that do not adhere to this
standard are necessarily accorded little weight or
credence.[27] Besides, instigation, or the appellants
claim of a frame-up, is a defense that has been
invariably viewed by this Court with disfavor
because the same can easily be concocted and is a
common standard defense ploy in most prosecutions
for violations of the Dangerous Drugs Act.[28] Thus,
in People vs. Bongalon,[29] the Court held:
As we have earlier stated, the appellants denial
cannot prevail over the positive testimonies of the
prosecution witnesses. We are not unaware of the
perception that, in some instances, law enforcers
resort to the practice of planting evidence to extract
information or even to harass civilians. However, like
alibi, frame-up is a defense that has been viewed by
the Court with disfavor as it can easily be, concocted,
hence, commonly used as a standard line of defense
in most prosecutions arising from violations of the
Dangerous Drugs Act. We realize the disastrous
consequences on the enforcement of law and order,
not to mention the well-being of society, if the courts,
solely on the basis of the policemens alleged rotten
reputation, accept in every instance this form of
defense which can be so easily fabricated. It is
precisely for this reason that the legal presumption
that official duty has been regularly performed exists.
The failure of the prosecution to present Oliver,
the police informant, does not enfeeble the case for
the prosecution.Informants are almost always never
presented in court because of the need to preserve
their invaluable service to the police.Their testimony
or identity may be dispensed with inasmuch as his or
her narration would be merely corroborative,
especially so in this case, when the poseur-buyer
himself testified on the sale of the illegal drug.[30]
The appellants claim that the prosecution
offered in evidence a mere xerox copy of the P500.00
buy money and did not account for its failure to
adduce in evidence the original copy thereof is not
supported by the records. The records show that the
original, and not merely a xerox copy of the marked
money, was in fact offered in evidence by the
prosecution.[31] The appellant would surely have
objected if the prosecution had offered in evidence a
mere xerox copy of the bill. The appellant did not do
so.The only ground for his objection to the admission
of the marked money was that it was self-serving.
Even if the xerox copy of the P500.00 bill was
erroneously admitted in evidence by the trial court,
the absence of the original of the marked money is
inconsequential. The marked money used in the buy-
bust operation is not indispensable in drug cases; [32] it
is merely corroborative evidence. Moreover, the
appellant was charged not only for the sale of
marijuana but also for the delivery thereof, which is
committed by the mere delivery or transfer of the
prohibited drug. The consideration for the transaction
is of no moment.[33]
The law defines deliver as a persons act of
knowingly passing a dangerous drug to another with
or without consideration.[34]Considering that the
appellant was charged with the sale and
the delivery of prohibited drugs, the consummation of
the crime of delivery of marijuana may be
sufficiently established even in the absence of the
marked money. The erasures and alterations in the
Joint Affidavit of the policemen involved in the buy-
bust operation did not debilitate the case of the
prosecution. First. The Joint Affidavit of the
policemen was not admitted in evidence for any
party. Second. The investigator who prepared the
Joint Affidavit erroneously stated that the
two P500.00 bills were used by the policemen who
conducted the buy-bust operation bearing Serial
Numbers AA823675 and G242745. As shown by the
prosecutions evidence the policemen used only
the P500.00 bill bearing Serial No. G242745 for the
purchase of the drug. Hence, the Joint Affidavit of
the policemen had to be corrected to reflect the truth.
All told, the presumption of regularity in the
performance of duty is, in this case, uncontradicted
by evidence to the contrary and, therefore,
stands. This is bolstered by the fact that the
prosecutions evidence fully shows and confirms such
regularity.Accordingly, there exists no cogent reason
to reverse or even modify the findings of the trial
court giving credence to the evidence of the
prosecution.
IN THE LIGHT OF ALL THE
FOREGOING, the Decision of the Regional Trial
Court of Laoag City, Branch 16, in Criminal Case
No. 7079, finding the appellant guilty beyond
reasonable doubt of the crime of violation of Section
4, Article II of Republic Act No. 6425, is hereby
AFFIRMED.
SO ORDERED.
[G.R. Nos. 96027-28. March 08, 2005]
BRIG. GEN. LUTHER A. CUSTODIO *, CAPT.
ROMEO M. BAUTISTA, 2nd LT. JESUS
D. CASTRO, SGT. CLARO L. LAT,
SGT. ARNULFO B. DE MESA, C1C
ROGELIO B. MORENO, C1C MARIO
E. LAZAGA, SGT. FILOMENO D.
MIRANDA, SGT. ROLANDO C. DE
GUZMAN, SGT. ERNESTO M.
MATEO, SGT. RODOLFO M.
DESOLONG, A1C CORDOVA G.
ESTELO, MSGT. PABLO S.
MARTINEZ, SGT. RUBEN AQUINO,
SGT. ARNULFO ARTATES, A1C
FELIZARDO TARAN, petitioners, vs.
SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES, respondents.
RESOLUTION
PUNO, J.:
Before us is a Motion To Re-Open Case With
Leave Of Court filed by petitioners who were
convicted and sentenced to reclusion perpetua by the
Sandiganbayan in Criminal Cases Nos. 10010 and
10011 for the double murder of Senator Benigno
Aquino, Jr. and Rolando Galman on August 21, 1983.
[1]
Petitioners were members of the military who
acted as Senator Aquinos security detail upon his
arrival in Manila from his three-year sojourn in the
United States. They were charged, together with
several other members of the military, before the
Sandiganbayan for the killing of Senator Aquino who
was fatally shot as he was coming down from the
aircraft of China Airlines at the Manila International
Airport. Petitioners were also indicted for the killing
of Rolando Galman who was also gunned down at
the airport tarmac.
On December 2, 1985, the Sandiganbayan
rendered a Decision in Criminal Cases Nos. 10010-
10011 acquitting all the accused, which include the
petitioners. However, the proceedings before the
Sandiganbayan were later found by this Court to be a
sham trial. The Court thus nullified said proceedings,
as well as the judgment of acquittal, and ordered a re-
trial of the cases.[2]
A re-trial ensued before the Sandiganbayan.
In its decision dated September 28, 1990, the
Sandiganbayan, while acquitting the other accused,
found the petitioners guilty as principals of the crime
of murder in both Criminal Cases Nos. 10010 and
10011. It sentenced them to reclusion perpetua in
each case.[3] The judgment became final after this
Court denied petitioners petition for review of the
Sandiganbayan decision for failure to show reversible
error in the questioned decision,[4] as well as their
subsequent motion for reconsideration.[5]
In August 2004, petitioners sought legal
assistance from the Chief Public Attorney who, in
turn, requested the Independent Forensic Group of
the University of the Philippines to make a thorough
review of the forensic evidence in the double murder
case. The petitioners, assisted by the Public Attorneys
Office, now want to present the findings of the
forensic group to this Court and ask the Court to
allow the re-opening of the cases and the holding of a
third trial to determine the circumstances surrounding
the death of Senator Benigno Aquino, Jr. and
Rolando Galman.
Petitioners invoke the following grounds for the
re-opening of the case:
I
Existence of newly discovered pieces of evidence
that were not available during the second trial of the
above-entitled cases which could have altered the
judgment of the Sandiganbayan, specifically:
 A) Independent forensic evidence uncovering
the false forensic claims that led to the
unjust conviction of the petitioners-
movants.
B) A key defense eyewitness to the actual killing of
Senator Benigno Aquino, Jr.
II
There was a grave violation of due process by
reason of:
A) Insufficient legal assistance of counsel;
B) Deprivation of right to counsel of choice;
C) Testimonies of defense witnesses were under
duress;
D) Willful suppression of evidence;
E) Use of false forensic evidence that led
to the unjust conviction of the
petitioners-movants.
III
There was serious misapprehension of facts on the
part of the Sandiganbayan based on false forensic
evidence, which entitles petitioners-movants to a re-
trial.[6]
Petitioners seek to present as new evidence the
findings of the forensic group composed of Prof.
Jerome B. Bailen, a forensic anthropologist from the
University of the Philippines, Atty. Erwin P. Erfe,
M.D., a medico-legal practitioner, Benito E. Molino,
M.D., a forensic consultant and Human Rights and
Peace Advocate, and Anastacio N. Rosete, Jr.,
D.M.D., a forensic dentistry consultant. Their report
essentially concludes that it was not possible, based
on the forensic study of the evidence in the double
murder case, that C1C Rogelio Moreno fired at
Senator Aquino as they descended the service
stairway from the aircraft. They posit that Senator
Aquino was shot while he was walking on the airport
tarmac toward the waiting AVSECOM van which
was supposed to transport him from the airport to
Fort Bonifacio. This is contrary to the finding of the
Sandiganbayan in the second trial that it was C1C
Moreno, the security escort positioned behind
Senator Aquino, who shot the latter. The report also
suggests that the physical evidence in these cases
may have been misinterpreted and manipulated to
mislead the court. Thus, petitioners assert that the
September 28, 1990 decision of the Sandiganbayan
should be voided as it was based on false forensic
evidence. Petitioners submit that the review by the
forensic group of the physical evidence in the double
murder case constitutes newly discovered
evidence which would entitle them to a new trial
under Rule 121 of the 2000 Rules of Criminal
Procedure. In addition to the report of the forensic
group, petitioners seek to present the testimony of an
alleged eyewitness, the driver of the waiting
AVSECOM van, SPO4 Ruben M. Cantimbuhan. In
his affidavit submitted to this Court, SPO4
Cantimbuhan states that he saw a man in blue
uniform similar to that of the Philippine Airlines
maintenance crew, suddenly fire at Senator Aquino as
the latter was about to board the van. The man in blue
was later identified as Rolando Galman.
Petitioners pray that the Court issue a
resolution:
1. [a]nnulling and setting aside this
Honorable Courts Resolutions dated
July 23, 1991 and September 10, 1991;
2. [a]nnulling and setting aside the
Decision of the Sandiganbayan
(3rd Division) dated September 28,
1990 in People vs. Custodio, et al.,
Case No. 10010-10011[;]
3. [o]rdering the re-opening of this case;
[and]
4. [o]rdering the Sandiganbayan to allow
the reception of additional defense
evidence/re-trial in the above entitled
cases.[7]
The issue now is whether petitioners are entitled
to a third trial under Rule 121 of the 2000 Rules of
Criminal Procedure.
The pertinent sections of Rule 121 of the 2000
Rules of Criminal Procedure provide:
Section 1. New Trial or reconsideration. At any time
before a judgment of conviction becomes final, the
court may, on motion of the accused or at its own
instance but with the consent of the accused, grant a
new trial or reconsideration.
Sec. 2. Grounds for a new trial. The court shall grant
a new trial on any of the following grounds:
(a) That errors of law or irregularities prejudicial to
the substantial rights of the accused have been
committed during the trial;
(b) That new and material evidence has been
discovered which the accused could not with
reasonable diligence have discovered and
produced at the trial and which if introduced and
admitted would probably change the judgment.
xxx
Sec. 6. Effects of granting a new trial or
reconsideration. The effects of granting a new trial
or reconsideration are the following:
(a) When a new trial is granted on the ground of
errors of law or irregularities committed during the
trial, all the proceedings and evidence affected
thereby shall be set aside and taken anew. The court
may, in the interest of justice, allow the introduction
of additional evidence.
(b) When a new trial is granted on the ground of
newly discovered evidence, the evidence already
adduced shall stand and the newly-discovered and
such other evidence as the court may, in the interest
of justice, allow to be introduced shall be taken and
considered together with the evidence already in the
record.
(c) In all cases, when the court grants new trial or
reconsideration, the original judgment shall be set
aside or vacated and a new judgment rendered
accordingly. (emphasis supplied)
In line with the objective of the Rules of Court
to set guidelines in the dispensation of justice, but
without shackling the hands that dispense it, the
remedy of new trial has been described as a new
invention to temper the severity of a judgment or
prevent the failure of justice.[8] Thus, the Rules allow
the courts to grant a new trial when there are errors of
law or irregularities prejudicial to the substantial
rights of the accused committed during the trial, or
when there exists newly discovered evidence. In the
proceedings for new trial, the errors of law or
irregularities are expunged from the record or new
evidence is introduced. Thereafter, the original
judgment is vacated and a new one is rendered. [9]
Under the Rules, a person convicted of a crime
may avail of the remedy of new trial before the
judgment of conviction becomes final. Petitioners
admit that the decision of the Sandiganbayan in
Criminal Cases Nos. 10010 and 10011 became final
and executory upon denial of their petition for review
filed before this Court and their motion for
reconsideration. Entry of judgment has in fact been
made on September 30, 1991.[10] Nonetheless, they
maintain that equitable considerations exist in this
case to justify the relaxation of the Rules and re-open
the case to accord petitioners the opportunity to
present evidence that will exonerate them from the
charges against them. We do not find merit in their
submission.
Petitioners anchor their motion on the ground of
newly discovered evidence. Courts are
generally reluctant in granting motions for new trial
on the ground of newly discovered evidence for it
is presumed that the moving party has had ample
opportunity to prepare his case carefully and to
secure all the necessary evidence before the trial.
Such motions are treated withgreat caution due to
the danger of perjury and the manifest injustice of
allowing a party to allege that which may be the
consequence of his own neglect to defeat an adverse
judgment. Hence, the moving party is often required
to rebut a presumption that the judgment is correct
and that there has been a lack of due diligence, and to
establish other facts essential to warrant the granting
of a new trial on the ground of newly discovered
evidence.[11] This Court has repeatedly held that
before a new trial may be granted on the ground of
newly discovered evidence, it must be shown (1)
that the evidence was discovered after trial; (2) that
such evidence could not have been discovered and
produced at the trial even with the exercise of
reasonable diligence; (3) that it is material, not
merely cumulative, corroborative, or impeaching; and
(4) the evidence is of such weight that it would
probably change the judgment if admitted. If the
alleged newly discovered evidence could have been
very well presented during the trial with the exercise
of reasonable diligence, the same cannot be
considered newly discovered.[12]
These standards, also known as the Berry rule,
trace their origin to the 1851 case of Berry vs. State
of Georgia[13] where the Supreme Court of Georgia
held:
Applications for new trial on account of newly
discovered evidence, are not favored by the Courts. x
x x Upon the following points there seems to be a
pretty general concurrence of authority, viz; that it is
incumbent on a party who asks for a new trial, on the
ground of newly discovered evidence, to satisfy the
Court, 1st. That the evidence has come to his
knowledge since the trial. 2d. That it was not owing
to the want of due diligence that it did not come
sooner. 3d. That it is so material that it would
produce a different verdict, if the new trial were
granted. 4th. That it is not cumulative only viz;
speaking to facts, in relation to which there was
evidence on the trial. 5th. That the affidavit of the
witness himself should be produced, or its absence
accounted for. And 6th, a new trial will not be
granted, if the only object of the testimony is to
impeach the character or credit of a
witness. (citations omitted)
These guidelines have since been followed by
our courts in determining the propriety of motions for
new trial based on newly discovered evidence.
It should be emphasized that the applicant for
new trial has the burden of showing that the new
evidence he seeks to present has complied with the
requisites to justify the holding of a new trial.
The threshold question in resolving a motion
for new trial based on newly discovered evidence is
whether the proferred evidence is in fact a newly
discovered evidence which could not have been
discovered by due diligence. The question of
whether evidence is newly discovered has two
aspects: a temporal one, i.e., when was the evidence
discovered, and a predictive one, i.e., when should
or could it have been discovered. It is to the latter that
the requirement of due diligence has relevance. [14] We
have held that in order that a particular piece of
evidence may be properly regarded as newly
discovered to justify new trial, what is essential is not
so much the time when the evidence offered first
sprang into existence nor the time when it first came
to the knowledge of the party now submitting it; what
is essential is that the offering party had
exercised reasonable diligence in seeking to locate
such evidence before or during trial but had
nonetheless failed to secure it.[15]
The Rules do not give an exact definition of due
diligence, and whether the movant has exercised due
diligence depends upon the particular circumstances
of each case.[16] Nonetheless, it has been observed that
the phrase is often equated with reasonable
promptness to avoid prejudice to the defendant. In
other words, the concept of due diligence has both a
time component and a good faith component. The
movant for a new trial must not only act in a timely
fashion in gathering evidence in support of the
motion; he must act reasonably and in good faith as
well. Due diligence contemplates that the defendant
acts reasonably and in good faith to obtain the
evidence, in light of the totality of the circumstances
and the facts known to him.[17]
Applying the foregoing tests, we find that
petitioners purported evidence does not qualify as
newly discovered evidence that would justify the re-
opening of the case and the holding of a third trial.
The report of the forensic group may not be
considered as newly discovered evidence as
petitioners failed to show that it was impossible for
them to secure an independent forensic study of the
physical evidence during the trial of the double
murder case. It appears from their report that the
forensic group used the same physical and
testimonial evidence proferred during the trial,
but made their own analysis and interpretation of
said evidence. They cited the materials and methods
that they used for their study, viz:
MATERIALS AND METHODS
MATERIALS:
a. Court records of the case, especially
photographs of: a) the stairway where the
late Sen. Aquino and his escorts
descended; b) the part of the tarmac
where the lifeless bodies of the late Sen.
Aquino and Galman fell; and c) the
autopsy conducted by the NBI Medico-
legal team headed by Dr. Mu[]oz; and the
autopsy report of the late Sen. Benigno
Aquino[,] Jr. signed by Dr. Mu[]oz and
Dr. Solis;
b. The gun and live ammunitions collected at
the crime scene;
c. A reference human skull photos and X-rays
of the same to demonstrate wound
location and bullet trajectory;
d. The reports of interviews and statements by
the convicted military escorts, and other
witnesses;
e. Re-enactment of the killing of Aquino based
on the military escorts[] version, by the
military escorts themselves in the Bilibid
Prison and by volunteers at the NAIA
Tarmac;
f. Various books and articles on forensic and
the medico-legal field[;]
g. Results of Forensic experiments conducted
in relation to the case.
METHODS:
a. Review of the forensic exhibits presented in
the court;
b. Review of TSNs relevant to the forensic
review;
c. Study of and research on the guns, slugs and
ammunitions allegedly involved in the
crime;
d. Interviews/re-enactment of the crime based
on the militarys accounts, both in the
Bilibid Prison where the convicts are
confined and the MIA (now NAIA)
stairway and tarmac;
e. Conduct of ocular inspection and
measurements on the actual crime scene
(stairway and tarmac) at the old Manila
International Airport (now NAIA);
f. Retracing the slugs trajectory based on the
autopsy reports and experts testimonies
using an actual human skull;
g. X-rays of the skull with the retraced
trajectory based on the autopsy report and
experts testimonies;
h. Evaluation of the presented facts and
opinions of local experts in relation to
accepted forensic findings in international
publications on forensic science,
particularly on guns and [gunshot] wound
injuries;
i. Forensic experiments and simulations of
events in relation to this case.[18]
These materials were available to the parties
during the trial and there was nothing that prevented
the petitioners from using them at the time to support
their theory that it was not the military, but Rolando
Galman, who killed Senator Aquino. Petitioners, in
their present motion, failed to present any new
forensic evidence that could not have been obtained
by the defense at the time of the trial even with the
exercise of due diligence. If they really wanted to
seek and offer the opinion of other forensic experts at
the time regarding the physical evidence gathered at
the scene of the crime, there was ample opportunity
for them to do so before the case was finally
submitted and decided.[19]
A reading of the Sandiganbayan decision dated
September 28, 1990 shows a thorough study by the
court of the forensic evidence presented during the
trial, viz:
COURT
FINDINGS
As to the physical
evidence
Great significance has to be accorded the trajectory of
the single bullet that penetrated the head and caused
the death of Sen. Benigno Aquino, Jr. Basic to the
question as to trajectory ought to be the findings
during the autopsy. The prosector in the autopsy, Dr.
Bienvenido Muoz, NBI Medico-Legal Officer,
reported in his Autopsy Report No. N-83-22-36, that
the trajectory of the gunshot, the wound of entrance
having been located at the mastoid region, left, below
the external auditory meatus, and the exit wound
having been at the anterior portion of the mandible,
was forward, downward and medially. (Autopsy
Report No. N-83-22-36, Exhibit NNNN-2-t-2)
A controversy as to this trajectory came about when,
upon being cross-examined by counsel for the
defense, Dr. Bienvenido Muoz made a significant
turn-about by stating that the correct trajectory of the
fatal bullet was upward, downward, and medially.
The present position of Dr. Muoz is premised upon
the alleged fact that he found the petrous bone
fractured, obviously hit by the fatal bullet. He
concluded, in view of this finding, that the fatal bullet
must have gone upward from the wound of entrance.
Since the fatal bullet exited at the mandible, it is his
belief that the petrous bone deflected the trajectory of
the bullet and, thus, the bullet proceeded downwards
from the petrous bone to the mandible.
This opinion of Dr. Bienvenido Muoz in this regard
notwithstanding, We hold that the trajectory of the
fatal bullet which killed Sen. Benigno Aquino, Jr.
was, indeed, forward, downward and medially. For
the reason that the wound of entrance was at a higher
elevation than the wound of exit, there can be no
other conclusion but that the trajectory was
downward. The bullet when traveling at a fast rate of
speed takes a straight path from the wound of
entrance to the wound of exit. It is unthinkable that
the bullet, while projected upwards, would, instead of
exiting to the roof of the head, go down to the
mandible because it was allegedly deflected by a
petrous bone which though hard is in fact a mere
spongy protuberance, akin to a cartilage.
Clear is proof of the downward trajectory of the fatal
bullet; First, as Dr. Pedro Solis and Dr. Ceferino
Cunanan, the immediate superiors of Dr. Bienvenido
Muoz, manifested before the Court, that, since the
wound of entrance appeared ovaloid and there is what
is known as a contusion collar which was widest at
the superior portion, indicating an acute angle of
approach, a downward trajectory of the bullet is
indicated. This phenomenon indicates that the muzzle
of the fatal gun was at a level higher than that of the
point of entry of the fatal bullet.
There was no showing as to whether a probe could
have been made from the wound of entrance to the
petrous bone. Out of curiosity, Dr. Juanito Billote
tried to insert a probe from the wound of exit into the
petrous bone. He was unsuccessful notwithstanding
four or five attempts. If at all, this disproves the
theory of Dr. Muoz that the trajectory was upward,
downward and medially. On the other hand, Dr.
Juanito Billote and photographer Alexander Loinaz
witnessed the fact that Dr. Muoz[s] understudy,
Alejandrino Javier, had successfully made a probe
from the wound of entrance directly towards the
wound of exit. Alejandrino Javier shouted with
excitement upon his success and Alexander Loinaz
promptly photographed this event with Alejandrino
Javier holding the protruding end of the probe at the
mandible. (Exhibit XXXXX-39-A)
To be sure, had the main bullet hit the petrous bone,
this spongy mash of cartilage would have been
decimated or obliterated. The fact that the main bullet
was of such force, power and speed that it was able to
bore a hole into the mandible and crack it, is an
indication that it could not have been stopped or
deflected by a mere petrous bone. By its power and
force, it must have been propelled by a powerful gun.
It would have been impossible for the main bullet to
have been deflected form an upward course by a
mere spongy protuberance. Granting that it was so
deflected, however, it could not have maintained the
same power and force as when it entered the skull at
the mastoid region so as to crack the mandible and
make its exit there.
But what caused the fracture of the petrous bone?
Was there a cause of the fracture, other than that the
bullet had hit it? Dr. Pedro Solis, maintaining the
conclusion that the trajectory of the bullet was
downward, gave the following alternative
explanations for the fracture of the petrous bone:
First, the petrous bone could have been hit by a
splinter of the main bullet, particularly, that which
was found at the temporal region; and,
Second, the fracture must have been caused by the
kinetic force applied to the point of entrance at the
mastoid region which had the tendency of being
radiated towards the petrous bone.
Thus, the fracture in the occipital bone, of the
temporal bone, and of the parietal bone, Dr. Pedro
Solis pointed out, had been caused by the aforesaid
kinetic force. When a force is applied to the mastoid
region of the head, Dr. Pedro Solis emphasized, a
radiation of forces is distributed all over the cranial
back, including, although not limited to, the parietal
bone. The skull, Dr. Solis explains, is a box-like
 structure. The moment you apply pressure on the
portion, a distortion, tension or some other
mechanical defect is caused. This radiation of forces
produces what is known as the spider web linear
fracture which goes to different parts of the body.
The so-called fracturing of the petrous portion of the
left temporal bone is one of the consequences of the
kinetic force forcefully applied to the mastoid region.
The fact that there was found a fracture of the petrous
bone is not necessarily indicative of the theory that
the main bullet passed through the petrous bone.
Doubt was expressed by Dr. Pedro Solis as to
whether the metal fragments alleged by Dr.
Bienvenido Muoz to have been found by him inside
the skull or at the wound of exit were really parts of
the main bullet which killed the Senator. When Dr.
Pedro Solis examined these fragments, he found that
two (2) of the fragments were larger in size, and were
of such shapes, that they could not have gone out of
the wound of exit considering the size and shape of
the exit wound.
Finding of a downward
trajectory of the
fatal bullet fatal
to the credibility
of defense witnesses.
The finding that the fatal bullet which killed Sen.
Benigno Aquino, Jr. was directed downwards
sustains the allegation of prosecution eyewitnesses to
the effect that Sen. Benigno Aquino, Jr. was shot by a
military soldier at the bridge stairs while he was
being brought down from the plane. Rebecca Quijano
saw that the senator was shot by the military man
who was directly behind the Senator while the
Senator and he were descending the stairs. Rebecca
Quijanos testimony in this regard is echoed by Jessie
Barcelona, Ramon Balang, Olivia Antimano, and
Mario Laher, whose testimonies this Court finds
likewise as credible.
The downward trajectory of the bullet having been
established, it stands to reason that the gun used in
shooting the Senator was fired from an elevation
higher than that of the wound of entrance at the back
of the head of the Senator. This is consistent with the
testimony of prosecution witnesses to the effect that
the actual killer of the Senator shot as he stood at the
upper step of the stairs, the second or third behind
Senator Aquino, while Senator Aquino and the
military soldiers bringing him were at the bridge
stairs. This is likewise consistent with the statement
of Sandra Jean Burton that the shooting of Senator
Aquino occurred while the Senator was still on the
bridge stairs, a conclusion derived from the fact that
the fatal shot was fired ten (10) seconds after Senator
Aquino crossed the service door and was led down
the bridge stairs.
It was the expert finding of Dr. Matsumi Suzuki that,
as was gauged from the sounds of the footsteps of
Senator Aquino, as the Senator went down the bridge
stairs, the shooting of the Senator occurred while the
Senator had stepped on the 11th step from the top.
At the ocular inspection conducted by this Court,
with the prosecution and the defense in attendance, it
should be noted that the following facts were
established as regards the bridge stairs:
Observations:
The length of one block covering the
tarmac 196;
The width of one block covering the
tarmac 10;
The distance from the base of the
staircase leading to the emergency
tube to the Ninoy marker at the
tarmac 126;
There are 20 steps in the staircase
including the landing;
The distance from the first rung of the
stairway up to the 20th rung which is
the landing of stairs 208;
Distance from the first rung of the
stairway up to the 20th rung until the
edge of the exit door 2311;
Distance from the 4th rung up to the
exit door 21;
Distance from the 5th rung up to the
exit door 1911;
Length of one rung including railpost
34;
Space between two rungs of stairway
9;
Width of each rung 11-1/2;
Length of each rung (end to end) 29:
Height of railpost from edge of rung
to railing 25.
(underlining supplied)[20]
The Sandiganbayan again exhaustively analyzed
and discussed the forensic evidence in its resolution
dated November 15, 1990 denying the motion for
reconsideration filed by the convicted accused. The
court held:
The Autopsy Report No. N-83-2236, Exhibit NNNN-
2-t-2 indicated a downward trajectory of the fatal
bullet when it stated that the fatal bullet was forward,
downward, and medially . . .
x
xx
II
The wound of entrance having been at a higher
elevation than the wound of exit, there can be no
other conclusion but that the trajectory was
downward. The fatal bullet, whether it be a Smith and
Wesson Caliber .357 magnum revolver or a .45
caliber, must have traveled at a fast rate of speed and
it stands to reason that it took a straight path from the
wound of entrance to the wound of exit. A hole
indicating this straight path was proven to have
existed. If, as contended on cross-examination by Dr.
Bienvenido Muoz, that the bullet was projected
upwards, it ought to have exited at the roof of the
head. The theory that the fatal bullet was deflected by
a mere petrous bone is inconceivable.  witnesses against former Minister Jose D. Aspiras,
III
Since the wound of entrance appeared ovaloid and
there is what is known as a contusion collar which
was widest at the superior portion, indicating an acute
angle of approach, a downward trajectory of the fatal
bullet is conclusively indicated. This phenomenon
indicates that the muzzle of the fatal gun was at a
level higher than that of the point of entry of the fatal
bullet.
IV
There was no hole from the petrous bone to the
mandible where the fatal bullet had exited and, thus,
there is no support to the theory of Dr. Bienvenido
Muoz that the fatal bullet had hit the petrous bone on
an upward trajectory and had been deflected by the
petrous bone towards the mandible. Dr. Juanito
Billotes testimony in this regard had amplified the
matter with clarity.
xxx
These physical facts, notwithstanding the arguments
and protestations of counsel for the defense as now
and heretofore avowed, compel the Court to maintain
the holding: (1) that the trajectory of the fatal bullet
which hit and killed Senator Benigno Aquino, Jr. was
forward, downward and medially; (2) that the Senator
was shot by a person who stood at a higher elevation
than he; and (3) that the Senator was shot and killed
by CIC Rogelio Moreno on the bridge stairs and not
on the tarmac, in conspiracy with the rest of the
accused convicted herein.[21]
This Court affirmed said findings of the
Sandiganbayan when it denied the petition for review
in its resolution of July 25, 1991. The Court ruled:
The Court has carefully considered and deliberated
upon all the contentions of the petitioners but finds
no basis for the allegation that the respondent
Sandiganbayan has gravely erred in resolving the
factual issues.
The attempt to place a constitutional dimension in the
petition is a labor in vain. Basically, only questions of
fact are raised. Not only is it axiomatic that the
factual findings of the Sandiganbayan are final unless
they fall within specifically recognized exceptions to
the rule but from the petition and its annexes alone, it
is readily apparent that the respondent Court correctly
resolved the factual issues.
xxx
The trajectory of the fatal bullet, whether or not the
victim was descending the stairway or was on the
tarmac when shot, the circumstances showing
conspiracy, the participants in the conspiracy, the
individual roles of the accused and their respective
parts in the conspiracy, the absence of evidence
against thirteen accused and their co-accused Col.
Vicente B. Tigas, Jr., the lack of credibility of the
Director Jesus Z. Singson, Col. Arturo A. Custodio,
Hermilo Gosuico, Major General Prospero Olivas,
and the shooting of Rolando Galman are all factual
matters w[h]ich the respondent court discussed with
fairness and at length. The petitioners insistence that
a few witnesses in their favor should be believed
while that of some witnesses against them should be
discredited goes into the question of credibility of
witnesses, a matter which under the records of this
petition is best left to the judgment of the
Sandiganbayan.[22]
The report of the forensic group essentially
reiterates the theory presented by the defense
during the trial of the double murder case. Clearly,
the report is not newly discovered, but rather recently
sought, which is not allowed by the Rules. [23] If at all,
it only serves to discredit the version of the
prosecution which had already been weighed and
assessed, and thereafter upheld by the
Sandiganbayan.
The same is true with the statement of the
alleged eyewitness, SPO4 Cantimbuhan. His
narration merely corroborates the testimonies of other
defense witnesses during the trial that they saw
Senator Aquino already walking on the airport tarmac
toward the AVSECOM van when a man in blue-gray
uniform darted from behind and fired at the back of
the Senators head.[24]The Sandiganbayan, however,
did not give weight to their account as it found the
testimonies of prosecution eyewitnesses Rebecca
Quijano and Jessie Barcelona more credible. Quijano
and Barcelona testified that they saw the soldier
behind Senator Aquino on the stairway aim and fire a
gun on the latters nape. As earlier quoted, the
Sandiganbayan found their testimonies to be more
consistent with the physical evidence. SPO4
Cantimbuhans testimony will not in any way alter the
courts decision in view of the eyewitness account of
Quijano and Barcelona, taken together with the
physical evidence presented during the trial.
Certainly, a new trial will only be allowed if the
new evidence is of such weight that it would
probably change the judgment if admitted.
[25]
 Also, new trial will not be granted if the new
evidence is merely cumulative, corroborative or
impeaching.
 As additional support to their motion for new
trial, petitioners also claim that they were denied due
process because they were deprived of adequate legal
assistance by counsel. We are not persuaded. The
records will bear out that petitioners were ably
represented by Atty. Rodolfo U. Jimenez during the
trial and when the case was elevated to this Court. An
experienced lawyer in criminal cases, Atty. Jimenez
vigorously defended the petitioners cause throughout
the entire proceedings. The records show that the
defense presented a substantial number of witnesses
and exhibits during the trial. After the Sandiganbayan
rendered its decision, Atty. Jimenez filed a petition
for review with this Court, invoking all conceivable
grounds to acquit the petitioners. When the Court
denied the petition for review, he again filed a motion
for reconsideration exhausting his deep reservoir of
legal talent. We therefore find petitioners claim to be
unblushingly unsubstantiated. We note that they did
not allege any specific facts in their present motion to
show that Atty. Jimenez had been remiss in his duties
as counsel. Petitioners are therefore bound by the acts
and decisions of their counsel as regards the conduct
of the case. The general rule is that the client is bound
by the action of his counsel in the conduct of his case
and cannot be heard to complain that the result of the
litigation might have been different had his counsel
proceeded differently.[26] We held in People vs.
Umali:[27]
In criminal as well as civil cases, it has frequently
been held that the fact that blunders and mistakes
may have been made in the conduct of the
proceedings in the trial court, as a result of the
ignorance, inexperience, or incompetence of counsel,
does not furnish a ground for a new trial.
If such grounds were to be admitted as reasons for
reopening cases, there would never be an end to a suit
so long as new counsel could be employed who could
allege and show that prior counsel had not been
sufficiently diligent, or experienced, or learned.
So it has been held that mistakes of attorneys as to
the competency of a witness, the sufficiency,
relevancy, materiality, or immateriality of a certain
evidence, the proper defense, or the burden of proof
are not proper grounds for a new trial; and in general
the client is bound by the action of his counsel in the
conduct of his case, and can not be heard to complain
that the result of the litigation might have been
different had counsel proceeded
differently. (citations omitted)
Finally, we are not moved by petitioners
assertion that the forensic evidence may have been
manipulated and misinterpreted during the trial of the
case. Again, petitioners did not allege concrete facts
to support their crass claim. Hence, we find the same
to be unfounded and purely speculative.
IN VIEW WHEREOF, the motion is
DENIED.
SO ORDERED.
[G.R. No. 130612. May 11, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. BERNARDINO
DOMANTAY, @ JUNIOR
OTOT, accused-appellant.
DECISION
MENDOZA, J.:
This case is here on appeal from the
decision[1] of the Regional Trial Court of Dagupan
City (Branch 57), finding accused-appellant guilty of
rape with homicide and sentencing him to death, and
to indemnify the heirs of the victim in the amount
of P480,000.00, and to pay the costs.
The facts hark back to the afternoon of October
17, 1996, at around 4 oclock, when the body of six-
year old Jennifer Domantay was found sprawled
amidst a bamboo grove in Guilig, Malasiqui,
Pangasinan. The childs body bore several stab
wounds. Jennifer had been missing since lunch time.
The medical examination conducted the
following day by Dr. Ma. Fe Leticia Macaranas, the
rural health physician of Malasiqui, showed that
Jennifer died of multiple organ failure and
hypovolemic shock secondary to 38 stab wounds at
the back. Dr. Macaranas found no lacerations or signs
of inflammation of the outer and inner labia and the
vaginal walls of the victims genitalia, although the
vaginal canal easily admitted the little finger with
minimal resistance. Noting possible commission of
acts of lasciviousness, Dr. Macaranas recommended
an autopsy by a medico-legal expert of the NBI.[2]
The investigation by the Malasiqui police
pointed to accused-appellant Bernardino Domantay, a
cousin of the victims grandfather, as the lone suspect
in the gruesome crime. At around 6:30 in the evening
of that day, police officers Montemayor, de la Cruz,
and de Guzman of the Malasiqui Philippine National
Police (PNP) picked up accused-appellant at the
Malasiqui public market and took him to the police
station where accused-appellant, upon questioning by
SPO1 Antonio Espinoza, confessed to killing Jennifer
Domantay. He likewise disclosed that at around 3:30
that afternoon, he had given the fatal weapon used, a
bayonet, to Elsa and Jorge Casingal, his aunt and
uncle respectively, in Poblacion Sur, Bayambang,
Pangasinan. The next day, October 18, 1996, SPO1
Espinoza and another policeman took accused-
appellant to Bayambang and recovered the bayonet
from a tricycle belonging to the Casingal
spouses. The police officers executed a receipt to
evidence the confiscation of the weapon.[3]
 On the basis of the post-mortem findings of Dr.
Macaranas, SPO4 Juan Carpizo, the Philippine
National Police chief investigator at Malasiqui, filed,
on October 21, 1996, a criminal complaint for murder
against accused-appellant before the Municipal Trial
Court (MTC) of Malasiqui. On October 25, 1996, Dr.
Ronald Bandonill, medico-legal expert of the NBI,
performed an autopsy on the embalmed body of
Jennifer. The result of his examination of the victims
genitalia indicated that the childs hymen had been
completely lacerated on the right side. Based on this
finding, SPO4 Carpizo amended the criminal
complaint against accused-appellant to rape with
homicide. Subsequently, the following information
was filed:[4]
That on or about the 17th day of October, 1996, in
the afternoon, in barangay Guilig, Municipality of
Malasiqui, province of Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design and armed
with a bayonnete, did then and there, wilfully,
unlawfully and feloniously have sexual intercourse
with Jennifer Domantay, a minor of 6 years old
against her will and consent, and on the same
occasion, the said accused with intent to kill, then and
there, wilfully, unlawfully and feloniously stab with
the use of a bayonnete, the said Jennifer Domantay,
inflicting upon her multiple stab wounds, which
resulted to her death, to the damage and prejudice of
her heirs.
At the trial, the prosecution presented seven
witnesses, namely, Edward, Jiezl, Lorenzo, all
surnamed Domantay, Joselito Mejia, Antonio
Espinoza, Celso Manuel, and Dr. Ronald Bandonill,
to establish its charge that accused-appellant had
raped and killed Jennifer Domantay.
Edward Domantay testified that in the morning
of October 17, 1996, accused-appellant and his two
brothers-in-law, Jaime Caballero and Daudencio
Macasaeb, had a round of drinks in front of the latters
house in Guilig, Malasiqui, Pangasinan. Edward
Domantay said that he was in front of Macasaebs
house, tending to some pigeons in his yard. [5] After
the group had consumed several bottles of San
Miguel gin, accused-appellant gave money to Edward
Domantay and asked him to buy two bottles of gin
and a bottle of Sprite.[6] Edward said he joined the
group and sat between Daudencio Macasaeb and
accused-appellant.[7] Edward said that accused-
appellant, who, apparently had one too many then,
rolled up his shirt and said: No diad Antipolo tan
L[i]pa et walay massacre, diad Guilig wala, walay
massacren kod dia, walay onakis-akis (In Antipolo
and Lipa, there were massacres; here in Guilig, there
will also be a massacre. I will massacre somebody
here, and they will cry and cry). Edward Domantay
saw that tucked in the left side of accused-appellants
waistline was a bayonet without a cover handle. [8] It
was not the first time that Edward had seen accused-
appellant with the knife as the latter usually carried it
with him.[9]
Jiezl Domantay, 10, likewise testified. She said
that, at about 2 oclock in the afternoon on October
17, 1996, she and four other children were playing in
front of their house in Guilig, Malasiqui, Pangasinan.
Jiezl saw accused-appellant and Jennifer Domantay
walking towards the bamboo grove of Amparo
Domantay where Jennifers body was later found.
Accused-appellant was about two meters ahead of
Jennifer. The bamboo grove was about 8 to 10 meters
from the house of Jiezl Domantay.[10]
Lorenzo Domantay, a relative of the victim,
corroborated Jiezls testimony that accused-appellant
had gone to Amparo Domantays bamboo grove in the
afternoon of October 17, 1996. Lorenzo said that that
afternoon, on his way to his farm, he saw accused-
appellant about 30 meters away, standing at the spot
in the bamboo grove where Jennifers body was later
found. Accused-appellant appeared restless and
worried as he kept looking around. However, as
Lorenzo was in a hurry, he did not try to find out why
accused-appellant appeared to be nervous.[11]
Prosecution witness Joselito Mejia, a tricycle
driver, said that, in the afternoon of October 17,
1996, he was about to take his lunch at home in
Alacan, a neighboring barangay about half a
kilometer from Guilig, when accused-appellant
implored Mejia to take him to Malasiqui at once.
Mejia told accused-appellant that he was going to
take his lunch first, but the latter pleaded with him,
saying they will not be gone for long. Mejia,
therefore, agreed. Mejia noticed that accused-
appellant was nervous and afraid. Accused-appellant
later changed his mind.Instead of going to the town
proper, he alighted near the Mormons church, outside
Malasiqui.[12]
In addition, the prosecution presented SPO1
Antonio Espinoza and Celso Manuel who testified
that, on separate occasions, accused-appellant had
confessed to the brutal killing of Jennifer Domantay.
SPO1 Espinoza testified that he investigated
accused-appellant after the latter had been brought to
the Malasiqui police station in the evening of October
17, 1996. Before he commenced his questioning, he
apprised accused-appellant of his constitutional right
to remain silent and to have competent and
independent counsel, in English, which was later
translated into Pangasinense.[13] According to SPO1
Espinoza, accused-appellant agreed to answer the
questions of the investigator even in the absence of
counsel and admitted killing the victim. Accused-
appellant also disclosed the location of the bayonet he
used in killing the victim.[14] On cross-examination,
Espinoza admitted that at no time during the course
of his questioning was accused-appellant assisted by
counsel. Neither was accused-appellants confession
reduced in writing.[15] Espinozas testimony was
admitted by the trial court over the objection of the
defense.
Celso Manuel, for his part, testified that he is a
radio reporter of station DWPR, an AM station based
in Dagupan City. He covers the third district of
Pangasinan, including Malasiqui. Sometime in
October 1996, an uncle of the victim came to
Dagupan City and informed the station about Jennifer
Domantays case.[16] On October 23, 1996, Manuel
went to Malasiqui to interview accused-appellant
who was then detained in the municipal jail. He
described what transpired during the interview thus:
[17]
PROS. QUINIT:
Q Did you introduce yourself as a media
practitioner?
A Yes, sir.
Q How did you introduce yourself to the accused?
A I showed to Bernardino Domantay alias Junior
Otot my I.D. card and I presented myself as
a media practitioner with my tape recorder
[in] my hand, sir.
Q What was his reaction to your request for an
interview?
A He was willing to state what had happened, sir.
Q What are those matters which you brought out
in that interview with the accused
Bernardino Domantay alias Junior Otot?
A I asked him what was his purpose for human
interests sake as a reporter, why did he
commit that alleged crime. And I asked also
if he committed the crime and he answered
yes. Thats it.
....
PROS. QUINIT:
Q You mentioned about accused admitting to you
on the commi[ssion] of the crime, how did
you ask him that?
A I asked him very politely.
Q More or less what have you asked him on that
particular matter?
A I asked Junior Otot, Bernardino Domantay,
Kung pinagsisisihan mo ba ang iyong
ginawa? Opo sabi niya, Ibig mo bang
sabihin Jun, ikaw ang pumatay kay
Jennifer?, Ako nga po. The [l]ast part of my
interview, Kung nakikinig ang mga
magulang ni Jennifer, ano ang gusto mong
iparating?, kung gusto nilang makamtan ang
hustisya ay tatanggapin ko. That is what he
said, and I also asked Junior Otot, what was
his purpose, and he said, it was about the
boundary dispute, and he used that little girl
in his revenge.
On cross-examination, Manuel explained that
the interview was conducted in the jail, about two to
three meters away from the police station. An uncle
of the victim was with him and the nearest policemen
present were about two to three meters from him,
including those who were in the radio room. [18] There
was no lawyer present. Before interviewing accused-
appellant, Manuel said he talked to the chief of police
and asked permission to interview accused-appellant.
[19]
 On questioning by the court, Manuel said that it
was the first time he had been called to testify
regarding an interview he had conducted. [20] As in the
case of the testimony of SPO1 Espinoza, the defense
objected to the admission of Manuels testimony, but
the lower court allowed it.
Dr. Bandonill, the NBI medico-legal who
conducted an autopsy of the victim on October 25,
1996, testified that Jennifer Domantay died as a result
of the numerous stab wounds she sustained on her
back,[21] the average depth of which was six inches.
[22]
 He opined that the wounds were probably caused
by a pointed sharp-edged instrument.[23] He also noted
contusions on the forehead, neck, and breast bone of
the victim.[24] As for the results of the genital
examination of the victim, Dr. Bandonill said he
found that the laceration on the right side of the
hymen was caused within 24 hours of her death. He
added that the genital area showed signs of
inflammation.[25]
Pacifico Bulatao, the photographer who took the
pictures of the scene of the crime and of the victim
after the latters body was brought to her parents
house, identified and authenticated the five pictures
(Exhibits A, B, C, D, and E) offered by the
prosecution.
The defense then presented accused-appellant as
its lone witness. Accused-appellant denied the
allegations against him. He testified he is an uncle of
Jennifer Domantay (he and her grandfather are
cousins) and that he worked as a janitor at the
Malasiqui Municipal Hall. He said that at around 1
oclock in the afternoon of October 17, 1996, he was
bathing his pigs outside the house of his brother-in-
law Daudencio Macasaeb in Guilig, Malasiqui,
Pangasinan. He confirmed that Daudencio was then
having drinks in front of his (Macasaebs) house.
Accused-appellant claimed, however, that he did not
join in the drinking and that it was Edward
Domantay, whom the prosecution had presented as
witness, and a certain Jaime Caballero who joined the
party. He also claimed that it was he whom Macasaeb
had requested to buy some more liquor, for which
reason he gave money to Edward Domantay so that
the latter could get two bottles of gin, a bottle of
Sprite, and a pack of cigarettes.[26] He denied Edward
Domantays claim that he (accused-appellant) had
raised his shirt to show a bayonet tucked in his
waistline and that he had said he would massacre
someone in Guilig.[27]
Accused-appellant also confirmed that, at about
2 oclock in the afternoon, he went to Alacan passing
on the trail beside the bamboo grove of Amparo
Domantay. But he said he did not know that Jennifer
Domantay was following him. He further confirmed
that in Alacan, he took a tricycle to Malasiqui. The
tricycle was driven by Joselito Mejia. He said he
alighted near the Mormon church, just outside of the
town proper of Malasiqui to meet his brother. As his
brother did not come, accused-appellant proceeded to
town and reported for work. That night, while he was
in the Malasiqui public market, he was picked up by
three policemen and brought to the Malasiqui police
station where he was interrogated by SPO1 Espinoza
regarding the killing of Jennifer Domantay. He
denied having owned to the killing of Jennifer
Domantay to SPO1 Espinoza. He denied he had a
grudge against the victims parents because of a
boundary dispute.[28] With respect to his extrajudicial
confession to Celso Manuel, he admitted that he had
been interviewed by the latter, but he denied that he
ever admitted anything to the former.[29]
As already stated, the trial court found accused-
appellant guilty as charged. The dispositive portion of
its decision reads:[30]
WHEREFORE, in light of all the foregoing, the
Court hereby finds the accused, Bernardino
Domantay @ Junior Otot guilty beyond reasonable
doubt with the crime of Rape with Homicide defined
and penalized under Article 335 of the Revised Penal
Code in relation and as amended by Republic Act No.
7659 and accordingly, the Court hereby sentences
him to suffer the penalty of death by lethal injection,
and to indemnify the heirs of the victim in the total
amount of Four Hundred Eighty Thousand Pesos
(P480,000.00),[31] and to pay the costs.
SO ORDERED.
In this appeal, accused-appellant alleges that:[32]
I.
THE COURT A QUO ERRED IN
APPRECIATING THE EXTRAJUDICIAL
CONFESSION[S] MADE BY THE
ACCUSED-APPELLANT.
II.
THE COURT A QUO ERRED IN
CONVICTING THE ACCUSED DESPITE
FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
First. Accused-appellant contends that his
alleged confessions to SPO1 Antonio Espinoza and
Celso Manuel are inadmissible in evidence because
they had been obtained in violation of Art. III, 12(1)
of the Constitution and that, with these vital pieces of
evidence excluded, the remaining proof of his alleged
guilt, consisting of circumstantial evidence, is
inadequate to establish his guilt beyond reasonable
doubt.[33]
Art. III, 12 of the Constitution in part provides:
(1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of his
own choice. If the person cannot afford the services
of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the
presence of counsel.
....
(3) Any confession or admission obtained in violation
of this section or section 17 hereof shall be
inadmissible in evidence.
This provision applies to the stage of custodial
investigation, that is, when the investigation is no
longer a general inquiry into an unsolved crime but
starts to focus on a particular person as a suspect.
[34]
 R.A. No. 7438 has extended the constitutional
guarantee to situations in which an individual has not
been formally arrested but has merely been invited
for questioning.[35]
Decisions[36] of this Court hold that for an
extrajudicial confession to be admissible, it must
satisfy the following requirements: (1) it must be
voluntary; (2) it must be made with the assistance of
competent and independent counsel; (3) it must be
express; and (4) it must be in writing.
In the case at bar, when accused-appellant was
brought to the Malasiqui police station in the evening
of October 17, 1996,[37] he was already a suspect, in
fact the only one, in the brutal slaying of Jennifer
Domantay. He was, therefore, already under custodial
investigation and the rights guaranteed in Art. III,
12(1) of the Constitution applied to him. SPO1
Espinoza narrated what transpired during accused-
appellants interrogation:[38]
[I] interrogated Bernardino Domantay, prior to the
interrogation conducted to him, I informed him of
his constitutional right as follows; that he has the
right to remain silent; that he has the right to a
competent lawyer of his own choice and if he can not
afford [a counsel] then he will be provided with one,
and further informed [him] that all he will say will be
reduced into writing and will be used the same in the
proceedings of the case, but he told me that he will
cooperate even in the absence of his counsel; that he
admitted to me that he killed Jennifer Domantay, and
he revealed also the weapon used [and] where he
gave [it] to.  influence on accused-appellant and coerced him
But though he waived the assistance of counsel,
the waiver was neither put in writing nor made in the
presence of counsel. For this reason, the waiver is
invalid and his confession is inadmissible. SPO1
Espinozas testimony on the alleged confession of
accused-appellant should have been excluded by the
trial court. So is the bayonet inadmissible in
evidence, being, as it were, the fruit of the poisonous
tree. As explained in People v. Alicando:[39]
. . . According to this rule, once the primary
source (the tree) is shown to have been unlawfully
obtained, any secondary or derivative evidence (the
fruit) derived from it is also inadmissible. Stated
otherwise, illegally seized evidence is obtained as a
direct result of the illegal act, whereas the "fruit of
the poisonous tree is at least once removed from the
illegally seized evidence, but it is equally
inadmissible. The rule is based on the principle that
evidence illegally obtained by the State should not be
used to gain other evidence because the originally
illegal obtained evidence taints all evidence
subsequently obtained.
We agree with the Solicitor General, however,
that accused-appellants confession to the radio
reporter, Celso Manuel, is admissible. In People v.
Andan,[40] the accused in a rape with homicide case
confessed to the crime during interviews with the
media. In holding the confession admissible, despite
the fact that the accused gave his answers without the
assistance of counsel, this Court said:[41]
[A]ppellants [oral] confessions to the newsmen are
not covered by Section 12(1) and (3) of Article III of
the Constitution. The Bill of Rights does not concern
itself with the relation between a private individual
and another individual. It governs the relationship
between the individual and the State. The
prohibitions therein are primarily addressed to the
State and its agents.  charged with treason shall be convicted unless on the
Accused-appellant claims, however, that the
atmosphere in the jail when he was interviewed was
tense and intimidating and was similar to that which
prevails in a custodial investigation.[42] We are not
persuaded. Accused-appellant was interviewed while
he was inside his cell.The interviewer stayed outside
the cell and the only person besides him was an uncle
of the victim. Accused-appellant could have refused
to be interviewed, but instead, he agreed. He
answered questions freely and
spontaneously. According to Celso Manuel, he said
he was willing to accept the consequences of his act.
Celso Manuel admitted that there were indeed
some police officers around because about two to
three meters from the jail were the police station and
the radio room.[43] We do not think the presence of the
police officers exerted any undue pressure or
into giving his confession.
Accused-appellant contends that it is . . . not
altogether improbable for the police investigators to
ask the police reporter (Manuel) to try to elicit some
incriminating information from the accused. [44] This is
pure conjecture. Although he testified that he had
interviewed inmates before, there is no evidence to
show that Celso was a police beat reporter. Even
assuming that he was, it has not been shown that, in
conducting the interview in question, his purpose was
to elicit incriminating information from accused-
appellant. To the contrary, the media are known to
take an opposite stance against the government by
exposing official wrongdoings.
Indeed, there is no showing that the radio
reporter was acting for the police or that the interview
was conducted under circumstances where it is
apparent that accused-appellant confessed to the
killing out of fear. As already stated, the interview
was conducted on October 23, 1996, 6 days after
accused-appellant had already confessed to the killing
to the police.
Accused-appellants extrajudicial confession is
corroborated by evidence of corpus delicti, namely,
the fact of death of Jennifer Domantay.In addition,
the circumstantial evidence furnished by the other
prosecution witnesses dovetails in material points
with his confession. He was seen walking toward the
bamboo grove, followed by the victim. Later, he was
seen standing near the bamboo grove where the
childs body was found. Rule 133 of the Revised
Rules on Evidence provides:
3. Extrajudicial confession, not sufficient ground for
conviction. An extrajudicial confession made by an
accused, shall not be sufficient ground for conviction,
unless corroborated by evidence of corpus delicti.
4. Evidence necessary in treason cases. No person
testimony of two witnesses to the same overt act, or
on confession in open court.
Accused-appellant argues that it was improbable
for a brutal killing to have been committed without
the children who were playing about eight to ten
meters from Amparo Domantays grove, where the
crime took place, having heard any commotion.
[45]
 The contention has no merit. Accused-appellant
could have covered the young childs mouth to
prevent her from making any sound. In fact, Dr.
Bandonill noted a five by two inch (5 x 2) contusion
on the left side of the victims forehead, which he said
could have been caused by a hard blunt instrument or
by impact as her head hit the ground. [46] The blow
could have rendered her unconscious, thus precluding
her from shouting or crying. 
 Accused-appellant also contends that the
testimony of Jiezl Domantay contradicts that of
Lorenzo Domantay because while Jiezl said she had
seen accused-appellant walking towards the bamboo
grove, followed by the victim, at around 2 oclock in
the afternoon on October 17, 1996, Lorenzo said he
saw accused-appellant standing near the bamboo
grove at about the same time.
These witnesses, however, did not testify
concerning what they saw at exactly the same
time. What they told the court was what they had
seen at around 2 oclock in the afternoon. There could
have been a difference in time, however little it was,
between the time Jiezl saw accused-appellant and the
victim walking and the time Lorenzo saw accused-
appellant near the place where the victims body was
later found.Far from contradicting each other, these
witnesses confirmed what each had said each one
saw. What is striking about their testimonies is that
while Jiezl said she saw accused-appellant going
toward the bamboo grove followed by the victim at
around 2 oclock in the afternoon on October 17,
1996, Lorenzo said he had seen accused-appellant
near the bamboo grove at around that time. He
described accused-appellant as nervous and
worried. There is no reason to doubt the claim of
these witnesses. Lorenzo is a relative of accused-
appellant. There is no reason he would testify falsely
against the latter. Jiezl, on the other hand, is also
surnamed Domantay and could also be related to
accused-appellant and has not been shown to have
any reason to testify falsely against accused-
appellant. At the time of the incident, she was only 10
years old.
For the foregoing reasons, the Court is
convinced of accused-appellants guilt with respect to
the killing of the child. It is clear that the prosecution
has proven beyond reasonable doubt that accused-
appellant is guilty of homicide. Art. 249 of the
Revised Penal Code provides:
Any person who, not falling within the provisions of
Article 246 [parricide] shall kill another without the
attendance of any of the circumstances enumerated in
the next preceding article [murder], shall be deemed
guilty of homicide and be punished by reclusion
temporal.
The killing was committed with the generic
aggravating circumstance of abuse of superior
strength. The record shows that the victim, Jennifer
Domantay, was six years old at the time of the
killing. She was a child of small build, 46 in height.
[47]
 It is clear then that she could not have put up much
of a defense against accused-appellants assault, the
latter being a fully grown man of 29 years. Indeed,
the physical evidence supports a finding of abuse of
superior strength: accused-appellant had a weapon,
while the victim was not shown to have had any;
there were 38 stab wounds; and all the knife wounds
are located at the back of Jennifers body.
But we think the lower court erred in finding
that the killing was committed with cruelty. [48] The
trial court appears to have been led to this conclusion
by the number of wounds inflicted on the victim. But
the number of wounds is not a test for determining
whether there was cruelty as an aggravating
circumstance.[49] The test . . . is whether the accused
deliberately and sadistically augmented the victims
suffering thus . . . there must be proof that the victim
was made to agonize before the [the accused]
rendered the blow which snuffed out [her] life. [50] In
this case, there is no such proof of cruelty. Dr.
Bandonill testified that any of the major wounds on
the victims back could have caused her death as they
penetrated her heart, lungs and liver, kidney and
intestines.[51]
Second. There is, however, no sufficient
evidence to hold accused-appellant guilty of raping
Jennifer Domantay. Art. 335 of the Revised Penal
Code, as amended, in part provides:
ART. 335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman
under any of the following circumstances.
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or is
demented.
As the victim here was six years old, only carnal
knowledge had to be proved to establish rape. Carnal
knowledge is defined as the act of a man having
sexual intercourse or sexual bodily connections with
a woman.[52] For this purpose, it is enough if there
was even the slightest contact of the male sex organ
with the labia of the victims genitalia. [53] However,
there must be proof, by direct or indirect evidence, of
such contact.
Dr. Ronald Bandonills report on the genital
examination he had performed on the deceased reads:
[54]
GENITAL EXAMINATION; showed a complete
laceration of the right side of the hymen. The
surrounding genital area shows signs of inflamation.
....
REMARKS: 1) Findings at the genital area indicate
the probability of penetration of that area by a hard,
rigid instrument. 
Hymenal laceration is not necessary to prove
rape;[55] neither does its presence prove its
commission. As held in People v. Ulili,[56] a medical
certificate or the testimony of the physician is
presented not to prove that the victim was raped but
to show that the latter had lost her
virginity. Consequently, standing alone, a physicians
finding that the hymen of the alleged victim was
lacerated does not prove rape. It is only when this is
corroborated by other evidence proving carnal
knowledge that rape may be deemed to have been
established.[57]
This conclusion is based on the medically
accepted fact that a hymenal tear may be caused by
objects other than the male sex organ [58] or may arise
from other causes.[59] Dr. Bandonill himself admitted
this. He testified that the right side of the victims
hymen had been completely lacerated while the
surrounding genital area showed signs of
inflammation.[60] He opined that the laceration had
been inflicted within 24 hours of the victims death
and that the inflammation was due to a trauma in that
area.[61] When asked by the private prosecutor
whether the lacerations of the hymen could have been
caused by the insertion of a male organ he said this
was possible. But he also said when questioned by
the defense that the lacerations could have been
caused by something blunt other than the male
organ. Thus, he testified:[62]
PROS. F. QUINIT:
Q Now, what might have caused the complete
laceration of the right side of the hymen,
doctor?
A Well, sir, if you look at my report there is a
remark and it says there; findings at the
genital area indicated the probability of
penetration of that area by a hard rigid
instrument.
Q Could it have been caused by a human organ?
A If the human male organ is erect, fully erect
and hard then it is possible, sir.
....
ATTY. VALDEZ:
Q In your remarks; finding at the genital area
indicates the probability of penetration of
that area by a hard rigid instrument, this may
have also been caused by a dagger used in
the killing of Jennifer Domantay is that
correct?
A Well, sir when I say hard rigid instrument it
should not be sharp pointed and sharp rigid,
it should be a hard bl[u]nt instrument.
Q Do you consider a bolo a bl[u]nt instrument, or
a dagger?
A The dagger is a sharp rigid but it is not a bl[u]nt
instrument, sir.
Q This Genital Examination showed a complete
laceration of the right side of the hymen, this
may have been possibly caused by a dagger,
is it not?
A No, sir. I wont say that this would have been
caused by a dagger, because a dagger would
have made at its incision . . . not a
laceration, sir.
Q But this laceration may also have been caused
by other factors other the human male organ,
is that correct?
A A hard bl[u]nt instrument, sir could show.
Q My question is other than the human male
organ?
A Possible, sir.
....
COURT:
Q You mentioned that the hymen was lacerated
on the right side?
A Yes, your Honor.
Q And if there is a complete erection by a human
organ is this possible that the laceration can
only be on the right side of the hymen?
A Yes, your Honor, its possible.
Q How about if the penetration was done by a
finger, was it the same as the human organ?
A Well, it depends on the size of the finger that
penetrat[es] the organ, if the finger is small
it could the superficial laceration, and if the
finger is large then it is possible your honor.
Q How about two fingers?
A Possible, sir.
To be sure, this Court has sustained a number of
convictions for rape with homicide based on purely
circumstantial evidence. In those instances, however,
the prosecution was able to present other tell-tale
signs of rape such as the location and description of
the victims clothings, especially her undergarments,
the position of the body when found and the like.
[63]
 In People v. Macalino,[64] for instance, the Court
affirmed a conviction for the rape of a two year-old
child on the basis of circumstantial evidence:[65]
The Court notes that the testimony or medical
opinion of Dr. Gajardo that the fresh laceration had
been produced by sexual intercourse is corroborated
by the testimony given by complainant Elizabeth that
when she rushed upstairs upon hearing her daughter
suddenly cry out, she found appellant Macalino
beside the child buttoning his own pants and that she
found some sticky fluid on the childs buttocks and
some blood on her private part. (Emphasis in the
original)
In contrast, in the case at bar, there is no
circumstantial evidence from which to infer that
accused-appellant sexually abused the victim.The
only circumstance from which such inference might
be made is that accused-appellant was seen with the
victim walking toward the place where the girls body
was found. Maybe he raped the girl. Maybe he did
not. Maybe he simply inserted a blunt object into her
organ, thus causing the lacerations in the
hymen. Otherwise, there is no circumstance from
which it might reasonably be inferred that he abused such loss as he has duly proved. Therefore, the award
her, e.g., that he was zipping up his pants, that there of actual damages should be reduced to P12,000.00.
was spermatozoa in the girls vaginal canal. In addition, the heirs of Jennifer Domantay are
Indeed, the very autopsy report of Dr. Bandonill entitled to recover exemplary damages in view of the
militates against the finding of rape. In describing the presence of the aggravating circumstance of abuse of
stab wounds on the body of the victim, he testified:[66] superior strength. Art. 2230 of the Civil Code
[A]fter examining the body I took note that there provides for the payment of exemplary damages
were several stab wounds . . . these were all found at when the crime is committed with one or more
the back area sir . . . extending from the back aggravating circumstance. An amount of P25,000.00
shoulder down to the lower back area from the left to is deemed appropriate.[74]
the right. In accordance with our rulings in People v.
Considering the relative physical positions of the Robles[75] and People v. Mengote,[76] the indemnity
accused and the victim in crimes of rape, the usual should be fixed at P50,000.00 and the moral damages
location of the external bodily injuries of the victim is at P50,000.00.[77]
on the face,[67] neck,[68] and anterior portion[69] of her WHEREFORE, the judgment of the trial court
body. Although it is not unnatural to find contusions is SET ASIDE and another one is rendered FINDING
on the posterior side, these are usually caused by the accused-appellant guilty of homicide with the
downward pressure on the victims body during the aggravating circumstance of abuse of superior
sexual assault.[70] It is unquestionably different when, strength and sentencing him to a prison term of 12
as in this case, all the stab wounds (except for a years of prision mayor, as minimum, to 20 years
minor cut in the lower left leg) had their entry points of reclusion temporal, as maximum, and
at the back running from the upper left shoulder to ORDERING him to pay the heirs of Jennifer
the lower right buttocks. Domantay the amounts of P50,000.00, as
It is noteworthy that the deceased was fully indemnity, P50,000.00, as moral
clothed in blue shorts and white shirt when her body damages, P25,000.00, as exemplary damages,
was brought to her parents house immediately after it and P12,000.00, as actual damages, and the costs.
was found.[71] Furthermore, there is a huge bloodstain SO ORDERED.
in the back portion of her shorts. [72] This must be
because she was wearing this piece of clothing when
the stab wounds were inflicted or immediately
thereafter, thus allowing the blood to seep into her
shorts to such an extent. As accused-appellant would
naturally have to pull down the girls lower garments
in order to consummate the rape, then, he must have,
regardless of when the stab wounds were inflicted,
pulled up the victims shorts and undergarments after
the alleged rape,otherwise, the victims shorts would
not have been stained so extensively. Again, this is
contrary to ordinary human experience. 
Even assuming that Jennifer had been raped,
there is no sufficient proof that it was accused-
appellant who had raped her. He did not confess to
having raped the victim.
From the foregoing, we cannot find that
accused-appellant also committed rape. In the special
complex crime of rape with homicide, both the rape
and the homicide must be established beyond
reasonable doubt.[73]
Third. The trial court ordered accused-appellant
to pay the heirs of Jennifer Domantay the amount
of P30,000.00 as actual damages. However, the list of
expenses produced by the victims father, Jaime
Domantay, only totaled P28,430.00. Of this amount,
only P12,000.00 was supported by a receipt. Art.
2199 of the Civil Code provides that a party may
recover actual or compensatory damages only for