MODULE 9: ALTERNATIVE CIRCUMSTANCES AND PERSONS CRIMINALLY LIABLE

I. Alternative Circumstances (Art. 15,RPC)

1. People v. Atop, G.R. No. 124303-05, 10 February 1998

G.R. Nos. 124303-05. February 10, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ALEJANDRO ATOP @ ALI, Accused-Appellant.

DECISION

PANGANIBAN, J.:

The trial court sentenced the appellant to death, holding that his common-law relationship with the
victims grandmother aggravated the penalty. We hold, however, that Sec. 11 of RA 7659 prescribes the
capital penalty in rape, only when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim, and not by reason of any other kinship.
On the other hand, relationship as an alternative aggravating circumstance under Art. 15 of the Revised
Penal Code encompasses only the spouse, ascendant, descendant, legitimate, natural or adopted
brother or sister, and relative by affinity in the same degrees. Outside these enumerations and
consistent with the doctrine that criminal laws must be liberally construed in favor of the accused, no
other relationship, kinship or association between the offender and the victim may aggravate the
imposable penalty for the crime committed. The fact, then, that the offended party is the
granddaughter or descendant of appellants live-in partner cannot justify the imposition of death upon
the rapist.

The Case

This is a combined appeal from, and an automatic review of, the Joint Decision of the Regional Trial
Court, Branch 12, of Ormoc City, finding Appellant Alejandro Atop, alias Ali, guilty beyond reasonable
doubt of three (3) counts of rape and sentencing him to two (2) terms of reclusion perpetua for the first
two counts, and to death for the third.

On April 21, 1995, Provincial Prosecutor I Rosario D. Beleta filed four separate informations1 against
accused-appellant charging him with rape on three separate occasions -- on October 9, 1992, sometime
in 1993 and on December 26, 1994 -- as well as with attempted rape on December 31, 1994. The
informations charging rape, except for the date of commission and the age of the victim, similarly allege
the following:

That on or about the 9th day of October, 1992, at Sitio Tambunan, Brgy. Sta. Rosa, Municipality of
Matag-ob, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, by means of force and intimidation, did then and there wilfully [sic], unlawfully and
feloniously have carnal knowledge of the herein offended party REGINA GUAFIN, 11 years old, the
accused is the live-in partner of her grandmother with whom she is living with [sic], against her will and
without her consent, with the use of a knife, mashed her breast, embraced, kissed and inserted his penis
over the victims genital organ to accomplish his lewd design, to her damage and prejudice.
During his arraignment, appellant, assisted by Counsel de Oficio Wenceslao Vanilla of the Public
Attorneys Office, pleaded not guilty.2 Thereafter, the cases were tried jointly. In his Decision,3 the trial
judge4 disposed of the cases as follows:

1. In Criminal Case No. 4627-0 finding the accused Alejandro Atop GUILTY beyond reasonable doubt of
RAPE defined and penalized under Article 335 of the Revised Penal Code. Appreciating the aggravating
circumstances of relationship and nighttime with no mitigating circumstance to offset any of the two,
this court imposes upon the said ALEJANDRO ATOP the sentence of RECLUSION PERPETUA and to
indemnify Regina Guafin the sum of THIRTY THOUSAND PESOS (P30,000.00) and to pay the costs.

2. In Criminal Case No. 4628-0 finding the accused Alejandro Atop GUILTY beyond reasonable doubt of
RAPE defined and penalized under Article 335 of the Revised Penal Code. Appreciating the aggravating
circumstances of relationship and nighttime with no mitigating circumstance to offset any of the two,
this court imposes upon the said ALEJANDRO ATOP the sentence of RECLUSION PERPETUA and to
indemnify Regina Guafin the sum of THIRTY THOUSAND PESOS (P30,000.00) and to pay the costs.

3. In Criminal Case No. 4630-0 finding the accused Alejandro Atop NOT GUILTY for insufficiency of
evidence.

4. In Criminal Case No. 4629-0 finding the accused ALEJANDRO ATOP guilty beyond reasonable doubt of
RAPE defined under Article 335 of the Revised Penal Code, as amended by Republic Act 7659.
Appreciating the aggravating circumstances of relationship and nighttime with no mitigating
circumstance to offset any of the two, this court imposes upon the said ALEJANDRO ATOP, also known
as Ali, the sentence of DEATH. Further, the same Alejandro Atop is directed to indemnify Regina Guafin
the sum of THIRTY THOUSAND PESOS (P30,000.00) as moral damages and to pay the costs.

By reason of the imposition of two reclusion perpetua and of the death penalties the jail warden is
directed to immediately commit the person of Alejandro Atop to the National Penitentiary at
Muntinlupa, Metro Manila while awaiting the review by the Supreme Court of this decision.5

The Facts

Version of the Prosecution

The prosecutions evidence is narrated by the trial court 6 as follows:

Private complainant Regina Guafin, told the court that she is a granddaughter of Trinidad Mejos and that
the accused Alejandro Atop is the common law husband of said Trinidad Atop [sic]. Her mother is a
daughter of said Trinidad Atop [sic] and lives in Pangasinan. She is an illegitimate child and she does not
even know her father. Since her early childhood she stayed with her grandmother Trinidad Atop [sic]
and the accused at Barangay Santa Rosa, Matag-ob, Leyte. Sometime in 1991 when she was already 10
years of age the accused started having lustful desire on her. The accused then inserted his finger into
her vagina. She told her grandmother about this but her grandmother did not believe her. She was then
told by her grandmother, Trinidad Mejos, that what her grandfather did to her was just a manifestation
of fatherly concern. She continued staying with her grandmother and her common law husband
Alejandro Atop, the herein accused.
On October 9, 1992, she was called by the accused Alejandro Atop to do something for him. When she
approached him the accused rushed towards her, removed her panty and inserted his male organ into
her vagina. She was not able to do anything to resist him because the accused gagged her mouth and
was carrying a knife with him. She was then 12 years old when the first rape was committed to her and
at that time her grandmother was then attending a delivery since her grandmother was a hilot. When
her grandmother returned home she told her what the accused did to her but her grandmother, again,
refused to believe her. She also remember [sic] of another incident wherein she was raped again by the
accused Alejandro Atop. It was in the year 1993 but she could not recall the month when it was
committed. Only she and the accused were then at their house at Barangay Santa Rosa, Matag-ob, Leyte
as her grandmother was at San Vicente attending to a delivery. Again, she told her grandmother about
the heinous acts that the accused did to her but her Lola refused to believe her.

On December 26, 1994, the accused again raped her. She could not ask for help because her mouth was
gagged by the accused. Aside from gagging her, the accused also carried a knife which he placed at his
side.

On December 31, 1994, while she together with her Aunt Gloria Montealto and her two (2) nieces
Rubilen and Jubilen Atop were about to go to sleep, she noticed that the accused was looking for her.
Upon seeing her the accused rushed towards her and was about to lay on top of her. She kicked him.
After that, the accused caressed and touched his nieces but his nieces also kicked him. Thereafter, the
accused stopped molesting her and his nieces and went to sleep instead. In the following morning,
January 1, 1995, she went to the barrio to go to school. She then forgot that there were no classes. She
was not able to get a ride towards the school, so she went directly to the house of her grandfather
Zacarias Geva. While she was at the house of her Lolo Geva, the accused arrived and immediately
entered the house of her grandfather. The accused was met by Rubilen Atop who was about to box him
but they immediately went out of the house and the accused followed them. The accused wanted to
bring her back to their house but she refused. So, the accused pulled her. The accused kept on holding
her until they reached the waiting shed were the accused smashed her to the concrete wall.

She reported the incidents of rape that happened in 1992, 1993 and 1994 only in January 1995. It took
her so long to report the said incidents because she was afraid. The accused threatened to kill her
should she tell anybody about the incidents. She was accompanied by her Aunts Fe Decio and Rosenda
Andales in reporting the said incidents to the police. Her statement was taken by the police at the police
headquarters. Thereafter, she filed a complaint with the Municipal Trial Judge of Matag-ob, Leyte. x x x
In her sworn statement which was also marked as Exhibit 1 for the defense, she only stated therein that
what was inserted into her vagina on July 1991 was only the finger of the accused. Out of fear, she
deliberately concealed from the investigator what actually had happened to her because at that time,
because the accused was not yet apprehended and she was afraid that the accused would kill her. Then
she filed complaints with the Office of the Provincial Prosecutor and requested the fiscal to make a re-
investigation in these cases. She told the Fiscal the truth of what was done to her by the accused
because at that time the accused was already arrested. x x x

xxx

Another prosecution witness Fe Decio, an aunt of the private offended party Regina Guafin, testified
that she knows the accused Alejandro Atop, the latter being her stepfather. She pointed in court the
said accused. She testified also that when her niece Regina Guafin went to her residence at Himarco,
Palompon, Leyte on January 2, 1995, she noticed that Regina Guafin had abrasions on her body and was
then crying. She asked her the reason why she cried and Regina told her that on January 1, 1995 the
accused again tried to rape her but did not succeed because she fought back and was able to resist. The
abrasions in her body was the result of the maltreatments made by the accused who forcibly pulled her
back to their house. Further, Regina told her that the said accused Alejandro Atop had raped her 3 to 4
times. She was told by Regina when the said incidents happened but she forgot the actual dates that the
latter told to her. She accompanied Regina to the police authorities of Matag-ob, Leyte and reported the
said incidents. During the time that Regina was investigated by the police authorities, the accused had
also fled. Thereafter, she submitted Regina for a medical examination at the Ormoc District Hospital.
Then, Regina Guafin filed a complaint at the MCTC of Matag-ob, Leyte.

On cross examination, she testified that they offer no objection with the relationship of the accused to
her mother. In fact during the time that the accused and her mother were living together, they were in
good terms with the accused. She denied the fact of sending her mother to Manila for the purpose of
separating her from the accused Alejandro Atop because it was only the decision of her mother to have
a vacation in Manila. She testified also that the age of her mother is more than 50 years old. 7

The third prosecution witness, Dr. Judith V. Lomocso who was a resident gynecologist at the Ormoc
District Hospital, testified that she examined Regina Guafin. Her findings were reduced in writing, as
follows:

External Findings:

1. Incised wound with scab formation (L) middle finger.

2. Tenderness (L) breast.

OB-Gyne Findings:

External genetalia [sic] - grossly normal

- negative pubic hair

Vaginal canal - admits 2 fingers with ease

hymen - healed laceration

uterus - small

LMP - December 4, 19948

Version of the Defense

Appellant denied the accusations of Guafin and imputed ill motive upon her aunts, who were the
daughters of his live-in partner.9 The trial court summed up his testimony this wise:

Accused Alejandro Atop [then 37 years old] testified that he and Trinidad Mejos had been living together
as husband and wife for about 10 years already. When they started living together, Trinidad Mejos was
already a widow with eight (8) children of her previous marriage. When he started to live with Trinidad
Mejos the latters children became mad at him because their mother was already old and he was still
young. He personally knew Regina Guafin, the latter being their adopted child. Regina Guafin was still 2
years old when he and his wife took care of her. That Regina Guafin continuously resided at Sta. Rosa,
Matag-ob, Leyte. The other persons who also lived with them aside from Regina Guafin, were the three
sons of Trinidad and his two (2) nieces whom he took from Butuan City and sent them to school. He
denied committing rape against Regina Guafin on October 9, 1992, in the year 1993 and on December
26, 1994. On December 31, 1994, while he was at his house, Regina went to the barrio proper to go to
school. In the afternoon of the same date, he went to fetch Regina Guafin because at that time classes
were not regular yet. At that time, the companions of Regina were Jovelyn and Rubilyn. He also denied
committing an offense against Regina Guafin on December 31, 1994. He testified also that he did not
evade arrest by going out of Matag-ob, Leyte because during that time he was working in Hideco as a
laborer. The reason why Regina Guafin filed a case against him because the said private complainant
was coached by her aunt who wanted him and his wife Trinidad to be separated.

On cross examination, he testified also that he was told by his cousin Nicolas Valencia that her [sic] wife
Trinidad was prevented by her children from visiting him in jail upon her arrival from Manila.10

Ruling of the Trial Court

The court a quo evaluated the testimony of the offended party in this manner:

x x x this court observed both the complainant and the accused when both were on the witness stand.
The tears that spontaneously flowed from the private complainants eyes and the sobs that punctuated
complainants testimony when asked about her experience with the accused eloquently conveyed the
hurt, the pain, and the anguish the private complainant has suffered and lived with during all the years.
When she told the court that she was raped by the accused she said it all with candor. The mixed
expression of sadness and anger shown in the private complainants face during her testimony convinced
this court that she was telling the truth. This court then found nothing in the evidence which would
indicate in any way that the said Regina Guafin was motivated in narrating to the court her ordeal other
than her quest for justice. The defenses claim that Regina was coached by her aunts to fabricate her
rape story in order to force their mother Trinidad Mejos to separate from the accused is nothing but a
mere speculation [upon] which this court found no probative value. This court then gives the testimony
of the private offended party full faith and credit.11cräläwvirtualibräry

The trial court also ruled that the circumstances of nighttime and relationship aggravated all the three
incidents of rape, but that there was no sufficient evidence proving attempted rape on December 31,
1994. Considering that the last rape occurred after the effectivity of RA 7659, the death penalty law, the
court meted out the capital punishment to accused-appellant.

Issues

In his appeal12 before us, appellant assigns the following errors:13cräläwvirtualibräry

I. The trial court erred in appreciating the circumstances of nighttime and relationship as aggravating the
penalty imposable for the rape allegedly committed on October 9, 1992, in 1993 and on December 26,
1994.
II. The trial court erred in finding accused guilty beyond reasonable doubt of the crimes charged.

The Courts Ruling

The appeal is partly meritorious. We find that the alleged aggravating circumstances were not duly
proved.

First Issue: Nighttime and Relationship

The time-settled rule is that nocturnity, as an aggravating circumstance, must have been deliberately
sought by the offender to facilitate the crime or prevent its discovery or evade his capture or facilitate
his escape.14 The culprit must have purposely taken advantage of the cover of night as an indispensable
factor to attain his criminal purpose.15cräläwvirtualibräry

We find merit in Appellant Atops contention, to which the solicitor general agrees, that the prosecution
failed to prove that nighttime was deliberately sought by appellant to facilitate his dastardly acts. In fact,
the prosecution failed to show that appellant consummated his carnal designs at night, except only for
the December 26, 1994 incident which the victim said occurred at 11:00 p.m.16 Much less is there any
evidence substantiating the trial courts conclusion that appellant intentionally sought the darkness to
advance his criminal exploits.

Neither can we appreciate relationship as an aggravating circumstance. The scope of relationship as

defined by law encompasses (1) the spouse, (2) an ascendant, (3) a descendant, (4) a legitimate, natural
or adopted brother or sister, or (5) a relative by affinity in the same degree.17 Relationship by affinity
refers to a relation by virtue of a legal bond such as marriage. Relatives by affinity therefore are those
commonly referred to as in-laws, or stepfather, stepmother, stepchild and the like; in contrast to
relatives by consanguinity or blood relatives encompassed under the second, third and fourth
enumeration above. The law cannot be stretched to include persons attached by common-law relations.
Here, there is no blood relationship or legal bond that links the appellant to his victim. Thus, the
modifying circumstance of relationship cannot be considered against him.

Neither is the following provision of Sec. 11, RA 7659 applicable:

Sec. 11. Article 335 of the [Revised Penal] Code is hereby amended to read as follows:

xxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law
spouse of the parent of the victim.

xxx
Undisputed is the fact that appellant is not the common law spouse of the parent of the victim. He is the
common law husband of the girls grandmother. Needless to state, neither is appellant the victims
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree. Hence, he is not encompassed in any of the relationships expressly enumerated in the
aforecited provision.

It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the
accused.18 Courts must not bring cases within the provision of a law which are not clearly embraced by
it. No act can be pronounced criminal which is not clearly made so by statute; so, too, no person who is
not clearly within the terms of a statute can be brought within them.19 Any reasonable doubt must be
resolved in favor of the accused.20

Second Issue: Sufficiency of Prosecution Evidence

However, we do not agree with the claim of appellant that the prosecution evidence was not sufficient
to prove his guilt. In the main, appellant relies on the disparity between, on the one hand, the
allegations of Regina in her sworn statement21 executed before MCTC Judge Aquilino A. Inopiquez Jr. of
Matag-ob, Leyte which merely prove acts of lasciviousness; and, on the other, her testimony in court
showing three counts of rape.

Such disparity, which at first glance may raise some doubts on the truthfulness of complainants
statements, was cogently and satisfactorily explained by her thus:

Q x x x why did you state in your affidavit that only the finger that [sic] was inserted into your vagina?

A Because during the time of the investigation, I did not tell what was really true because he was not yet
apprehended, sir.

Q So, you deliberately conceal[ed] from the investigator what actually happened out of fear?

A Yes, your Honor.

CONTINUE

PROSECUTOR

Q And when you appeared before the Office of the Provl. Fiscal, were you investigated?

A Yes, maam.

Q And did you tell the Fiscal the truth of what had this accused done to you?

A Yes, maam.

Q And what was that statement you have given to the Fiscal?

A I told the Fiscal the truth because the accused was already arrested.
Q And what was the truth?

A The truth that it was his penis that was inserted to my vagina.

Q How many times did the accused inserted [sic] his penis into your vagina?

A Many times maam but I can remember only three (3) to four (4) times.

Q And the first time that [sic] was on October 9, 1992?

A Yes, maam.

Q When was the second time he inserted his penis into your vagina?

A In the year 1993.

Q And the third time?

A On December 26, 1994. 22cräläwvirtualibräry

From the testimony of Regina, the crimes evidently committed by appellant on the aforestated dates
were consummated rapes, not merely acts of lasciviousness. Initially, she hesitated to completely
divulge her ravishment by appellant because of his threats to kill her should she tell anybody of his
assaults.23 With his arrest and detention, she mustered the courage to finally and completely reveal her
embarrassing story.

No simple barrio lass would so candidly admit before the public that a man who had lived as common-
law husband to her grandmother had inserted his penis in her vagina for so many times in the past. It is
unthinkable that complainant, a young lady of fifteen years, would allow her private parts to be
examined and would withstand the rigors of a public trial -- along with the shame, humiliation and
dishonor of exposing her own mortifying defilement -- if she was not in fact ravished. A careful
examination of her testimony does not reveal any hint of prevarication. Rather, her straightforward and
unequivocal statements, during both her direct and her cross-examinations, show indelible badges of
truth. As the trial judge keenly observed, The tears that spontaneously flowed from the private
complainants eyes and the sobs that punctuated [her] testimony when asked about her experience with
the accused eloquently conveyed the hurt, the pain, and the anguish the private complainant has
suffered and lived with during all the years. When she told the court that she was raped by the accused,
she said it all with candor. The mixed expression of sadness and anger shown in the private
complainants face during her testimony convinced this court that she was telling the truth.24 We find it
apt to say once again that when a woman, especially a minor, says that she has been raped, she says in
effect all that is necessary to show that the crime was committed.25cräläwvirtualibräry

Appellants contention that private complainant was merely induced by her aunts who had objected to
his relationship with their mother, Trinidad Mejos, is a trite defense that is completely undeserving of
credit. It is unnatural and unbelievable for Reginas aunts to concoct a story of rape of their own very
young niece, that would bring shame and scandal not only to her but to the entire family, especially to
their mother. There could have been so many ways to alienate appellant from their mother, so many
crimes to impute to him without dragging the familys honor into it. The preposterousness of appellants
assertion becomes more obvious in light of the fact that this case was instituted only after ten (10) years
of his illegitimate union with Reginas grandmother. If Reginas aunts truly wanted them to discontinue
such relationship, the long wait is inexplicable.

Consequently, in the face of private complainants positive and unequivocal testimony, appellants plain
denial of the accusations against him cannot prevail.26 It is well-settled that denial, if unsubstantiated by
clear and convincing evidence, is a negative self-serving assertion which deserves no weight in law.27 The
recognized rule is that testimonies of rape victims who are young and immature are each worthy of full
credence.28cräläwvirtualibräry

Time and again, we have also held that when the question deals with the credibility of witnesses and
their testimonies, the trial courts observations and conclusions deserve great respect and are often
accorded finality, unless there appears in the record some fact or circumstance of weight which the
lower court may have overlooked, misunderstood or misappreciated and which, if properly considered,
would alter the results of the case.29 The trial judge has the valuable edge of observing the witness
deportment and manner of testifying, her furtive glance, blush of conscious shame, hesitation, flippant
or sneering tone, calmness, sigh, or the scant or full realization of an oath30 -- all of which are useful aids
for an accurate determination of a witness honesty and sincerity. After a thorough review of all the
evidence on record, the Court finds no reason to reverse the trial courts findings on the guilt of
appellant.

Penalties Imposable

For the rape incidents on October 9, 1992 and sometime in 1993, the court a quo correctly imposed the
penalty of reclusion perpetua for each of the two criminal acts. The third rape incident, however,
occurred after the effectivity of RA 7659, the law which imposed the death penalty on certain heinous
crimes. Under this amendatory law, the penalty for rape committed with the use of a deadly weapon
is reclusion perpetua to death.31 This provision is applicable in the instant case, since private
complainant was threatened with a knife when appellant consummated his beastly acts on
her.32cräläwvirtualibräry

In cases where the penalty prescribed is composed of two indivisible penalties and there is neither an
aggravating nor a mitigating circumstance in the commission of the felony, the lesser penalty should be
applied.33 Since there was no modifying circumstance even in the third rape, the penalty therefor should
be reclusion perpetua, not the graver penalty of death as imposed by the court a quo. As earlier
explained, the attendant relationships enumerated under Sec. 11 of RA 7659 do not apply either.

Consistent with prevailing jurisprudence,34 we increase the civil indemnity imposed upon appellant by
the trial court to P50,000 for each count of rape. The Court notes that, for appellants third conviction,
the trial court ordered him to indemnify the victim in the amount of P30,000 as moral damages. Civil
indemnity under Art. 10035 of the Revised Penal Code is separate and distinct from moral damages
under Arts. 2217 and 2219 of the Civil Code.36 Conformably, Appellant Atop should indemnify Regina
Guafin in the total amount of P150,000 for the three counts of rape -- separately from payment of moral
damages which we find justified under the circumstances. The moral sufferings of private complainant
were obvious during the court proceedings where, as observed by the trial judge and also noted in the
transcripts, she spontaneously cried and sobbed, and showed a mixed expression of sadness, pain and
anger.
WHEREFORE, the Decision appealed from is hereby AFFIRMED, with the MODIFICATION that Appellant
Alejandro Atop shall not suffer the penalty of death but shall SERVE three (3) terms of reclusion
perpetua, one for each of the three (3) counts of rape for which he was found GUILTY by the trial court,
and is ordered to PAY Regina Guafin indemnity in the amount of P150,000 plus moral damages
of P50,000.

SO ORDERED.

2. US v. McMann, G.R. No. L-2229, 1 July 1905, 4 Phil. 561

G.R. No. 2229 July 1, 1905

THE UNITED STATES,Plaintiff-Appellee, vs. ROBERT MCMANN,Defendant-Appellant.

W. A. Kincaid for appellant.

Office of the Solicitor-General Araneta for appellee.

WILLARD, J.:

The defendant, McMann, and one McKay were packers at Camp Vicars in Mindanao, employed by the
Quartermaster's Department of the Army. On the day in question the defendant had charge of some
mules about one and one half miles from the camp. McKay was not on guard at the time, but, for some
reason which does not appear, was near the place where the defendant was stationed with the mules.
McKay went to the house of a Moro, Amay Pindolonan, for the purpose of getting matches with which
to light his cigar. With his revolver in his hand he attempted to enter the house, but the owner would
not allow him to do so. A few moments later the defendant arrived at the same house. He attempted to
enter, but was unable to do so on account of the opposition of the owner. He also carried his revolver in
his hand with the hammer raised ready to be discharged. A Moro named Master, who was there at the
time, was carving the head of a bolo with one hand, holding the blade in the other. The defendant
snatched the bolo from him, cutting his fingers. This Moro left for the camp to report the matter to the
authorities. Soon after this McKay and the Moro Pindolonan, being seated side by side at a distance of
from 3 to 6 feet from the defendant, who was either standing or sitting on the stairway which led into
the house, the latter raised his pistol and fired at McKay. The bullet struck him in the back of the head
and killed him instantly. The Moro at once jumped up, looked around to see where the shot came from,
and started to run, whereupon the defendant shot him. The exact nature of his injuries does not
appear,, but it appears that at the time of the trial, about a month after the event, he was still in the
hospital. At some time, probably after the killing of McKay, although the defendant says it was before,
the latter killed a dog which was on the premises. The defendant and McKay were both drunk at this
time.

That the defendant fired the shot which killed McKay is practically admitted by him in his testimony and
the fact is also proved by three or four eyewitnesses. It is accidental and that he had no intention of
killing McKay. In the face of the positive testimony of the witnesses there is no ground for saying that
the shooting was accidental. Two of the Moros testified that they saw him discharge his revolver at
McKay. In view of the fact that McKay and the Moro were sitting side by side, it may perhaps have been
difficult for the witnesses to have known at which one of the two the defendant aimed, but their
testimony makes it plain that in no event was the discharge of the revolver accidental.

As to the second claim of the defendant that he had no intention of killing McKay, the only evidence in
support of it is the proof that the defendant and McKay were good friends prior to the occurrence and
that no reason is shown why he should have committed such an act. It may be difficult to state what the
exact cause was. It appears from the testimony that while they were in the position above stated the
defendant was talking to McKay, but McKay said nothing in reply. The cause for the commission of the
crime might be found perhaps in this conversation, if we knew what it was. Or perhaps the defendant
killed McKay because he, the defendant, was drunk. But whatever the cause may have been it is not
absolutely necessary for us to find a motive therefor. The question of motive is of course very important
in cases where there is doubt as to whether the defendant is or is not the person who committed the
act, but in this case, where it is proved beyond all doubt that the defendant was the one who caused the
death of McKay, it is not so important to know the exact reason for the deed.

The defendant also claims that the court below erred in holding that the crime was committed
with alevosia. The judge below based his holding upon the fact that McKay was shot from behind. The
authorities cited by the defendant from the supreme court of Spain may be divided into two classes.
One class includes cases in which the evidence did not show by eyewitnesses the exact way in which the
crime was committed. The court held that under these circumstances alevosia could not be presumed
from the condition in which the body was found or from proof that the shot must have come from
behind. These cases have no application to the case at bar, for here the proof shows exactly how the
offense was committed. The second class of cases includes those in which, after a struggle has
commenced between the parties on one side and on the other, and after each side is notified of the
intention of the other side to do them injury, a member of one party is killed by a member from the
other by a blow from behind. These cases have no application to the case at bar, for here before any
struggle between McKay and McMann had commenced, or before there was any indication, so far as
the evidence goes, of any trouble between them, and without any warning, the defendant shot McKay
in the back of the head.

We do not understand that the defendant claims that he intended to shoot the Moro when he killed
McKay, but even if this claim were made and supported, we do not see how it could change the result in
view of the fact that McKay was shot from behind without any warning and with no intimation that an
attack was to be made upon him or the Moro. What the rule would be had McKay been facing McMann
when the latter fired at the back of the Moro, we do not, therefore, have to decide.

The court below held that the defendant was drunk at the time the act was committed, but held also
that drunkenness was habitual with him and therefore his condition could not be taken into
consideration for the purpose of lessening the sentence. The defendant in this court claims that the
court erred in holding that drunkenness was habitual with the defendant. The testimony upon that point
furnished by one of the witnesses for the defendant is as follows:

Q. Did you say that you saws the accused and McKay drinking together on the night before the day of
the occurrence? -

A. Yes, sir.
Q. Is it not true that the said night was the first time you saw the accused drinking?

A. No, sir. It is not true. I have seen him drink before.

Q. But you never saw him drunk before? -

A. Yes, sir.

Q. How many times had you seen the accused drunk before?

A. That is a difficult question to answer; I have seen him drunk many times. The first time I knew the
accused I saw him drunk twelve or more times.

Q. Then you mean to say that drunkenness was habitual with the accused?

A. When I have seen him drinking, usually he retired drunk to the quarters.

Q. How many times have you seen the accused drinking during the time you have known him?

A. I could not say; too may times to recollect.

Q. Are you sure of this?

A. Yes, sir.

We think this testimony justifies the court below in its holding in view of what is said in some of the
decisions cited by the defendant in his brief. In the case of Commonwealth vs. Whitney (5 Gray; 85) the
court said:

The exact degree of intemperance which constitutes a drunkard it may not be easy to define, but
speaking in general terms, and with the accuracy of which the matter is susceptible, he is a drunkard
whose habit is to get drunk, "whose ebriety has become habitual." To convict a man of the offense of
being a common drunkard it is, at the least, necessary to show that he is an habitual drunkard. Indeed
the terms 'drunkard' and 'habitual drunkard' mean the same thing.

In the case of Ludwick vs. Commonwealth (18 Penn. St., 172) the court said:

A man may be an habitual drunkard, and yet be sober for days and weeks together. The only rule is, Has
he a fixed habit of drunkenness? Was he habituated to intemperance whenever the opportunity
offered?

The judgment of the court below is affirmed with the costs of this instance against the
3. People v. San Pedro, G.R. No. L-44274, 22 January 1980, 95 SCRA 306

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LUISITO SAN PEDRO, et al., accused, ARTEMIO BANASIHAN, defendant-appellant.

Haydee B. Yorac for appellant.

Office of the Solicitor General for appellee.

PER CURIAM:

Automatic review of the death penalty imposed on appellant by the Court of First Instance of Laguna,
for the crime of robbery with homicide, committed, according to the evidence, and as stated in the
appellant's brief, which We quote, as follows:

In the afternoon of June 2, 1970, the lifeless body of a person was found somewhere
between the barrios of Masaya and Paciano Rizal Municipality of Bay, Laguna. The body
was brought to the municipal building of Bay for autopsy. Dr. Fe Manansala-Pantas, in
her autopsy report, Exh. B, noted that the deceased died of profuse hemorrhage due to
23 lacerated and stab wounds and multiple abrasions found on the different parts of the
body of the deceased.

The deceased was identified to be Felimon Rivera, a driver of a passenger jeep

belonging to Pablito delos Reyes, a fruit vendor. Earlier in the day, Rivera was out driving
the jeep. But that was to be the last time for him to drive the jeep for on that same day,
he was killed, and his jeep was no longer found or recovered.

It was not until June 11, 1971, that the police authorities found a concrete lead to the
solution of the case. Rodrigo Esguerra, when apprehended and interviewed by the
police, admitted his participation and named his companions. He gave a written
statement, Exh. F. Soon the police began rounding up the other suspects.

Artemio Banasihan was apprehended sometime in 1972. On March 3 of said year, he

was investigated by Sgt. Juan Tolentino of the Philippine Constabulary. He gave a
statement which was sworn to before the Acting Municipal Judge of Los Baños, Laguna,
confessing his participation in the robbery and killing of Felimon Rivera (Exh. H). In said
statement, Banasihan recounted that four days before June 2, 1970, he and his co-
accused met and planned to get the jeep driven by the deceased. Carrying out their
plan, he and Luisito San Pedro approached Rivera in the afternoon of June 2, 1970 and
on the pretext of hiring Rivera's jeep to haul coconuts, they proceeded to Bo. Puypuy in
Bay, Laguna, where they were joined by Salvador Litan and Rodrigo Esguerra. Esguerra
was then carrying a water pipe wrapped in paper. Upon reaching a river between the
barrios of Mainit and Puypuy San Pedro ordered Rivera to stop. Whereupon, at
 Esguerra's signal, Litan hit Rivera at the nape with the water pipe. Rivera jumped out of
the jeep but was chased by San Pedro and Litan who stabbed him at the back several
times with a dagger. Esguerra then drove the jeep and the group proceeded to Makati,
Rizal, He then joined Nelson Piso and Antonio Borja. The jeep was brought to Cavite City
where it was sold for P2,000.00. Four days later, Piso went to Los Baños and gave San
Pedro, Litan and Banasihan P50.00 each, with the promise that the balance would be
given later. However, the promised balance was not given them.

As synthesized above, the facts of the instant case are as also found by the trial court, which appellant,
through counsel de oficio, confesses inability to dispute. Admitting thus the accuracy of the factual
finding of the court a quo, appellant raises only questions of law, particularly in the appreciation of the
modifying circumstances proven by the evidence, with a view to reducing the penalty of death as
imposed, to reclusion perpetua as prayed for. This notwithstanding, We did not relieve ourselves of the
duty of reviewing the evidence, for the purpose of the proceedings before Us is to discover any possible
error, specifically in the appreciation of the evidence, that might have been committed by the trial court
that led to an improper imposition of the supreme penalty. After undertaking the task, We express
complete agreement that no reversible error has been committed by the trial court as to the culpable
participation of the appellant as one of the perpetrators of the capital offense charged.

Specifically, the legal questions raised affecting the degree of culpability of appellant is whether the
aggravating circumstance of craft is absorbed by treachery, and whether the resulting single aggravating
circumstance of treachery should be offset by the mitigating circumstance of lack of instruction, as
appellant claims should be appreciated in his favor, thereby calling for the reduction of the death
penalty to that of life imprisonment.

We cannot subscribe to the theory of craft being absorbed by treachery, as nighttime and abuse of
superior strength may be so absorbed, as held in numerous decisions of this Court.' In the instant case,
craft was employed not with a view to making treachery more effective as nighttime and abuse of
superior strength would in the killing of the victim. It was directed actually towards facilitating the taking
of the jeep in the robbery scheme as planned by the culprits. From the definition of treachery, it is
manifest that the element of defense against bodily injury makes treachery proper for consideration
only in crimes against person as so explicitly provided by the Revised Penal Code (Art. 14[16]).

Aside from the foregoing observation, decisional rulings argue against appellant's submission. Thus in
the case of U.S. vs. Gampona, et al., 36 Phil. 817 (1917) where the crime charged was murder, qualified
by treachery, craft was considered separately to aggravate the killing. Note that in this cited case, the
crime was killing alone, which has a weightier rationale. for, merging the two aggravating circumstances,
than when, as in crime of robbery with homicide, craft has a very distinct application to the crime of
robbery, separate and independent of the homicide. Yet, it was held that craft and treachery were
separate and distinct aggravating circumstances. The same ruling was announced in People vs. Sakam, et
al., 61 Phil. 27 (1934).

In People v. Malig, 83 Phil. 804, (1949) craft which consisted in luring the victim to another barrio, was
considered absorbed by treachery. This may be so because craft enhanced the effectiveness of the
means, method or form adopted in the execution of the crime, one against persons, "which tend directly
and specially to insure its execution, without risk to himself arising from the defense which the offended
party might make." Even so, the Court was divided in the inclusion or absorption of craft by treachery.
And again, the offense charged was one solely against persons.
With the presence of two aggravating circumstances, craft and treachery, it would make no difference
even if the mitigating circumstance of lack of instruction were appreciated in appellant's favor which is
even doubtful from the fact alone, as was allegedly proven by the testimony of appellant that he cannot
read and write but can only sign his name (P. 9, t. s. n. Sept. 1, 1975). This, apart from the fact that as
held categorically in the case of People vs. Enot, 6 SCRA 325 (1962) lack of instruction is not applicable
to crimes of theft and robbery, much less to the crime of homicide. The reason is that robbery and killing
are, by their nature, wrongful acts, and are manifestly so to the enlightened, equally as to the ignorant
(People vs. Salip Manla et al., 30 SCRA 389 [1969]).

As recently held by this Court, speaking through Justice Hermogenes Concepcion, Jr., the "criteria in
determining lack of instruction is not illiteracy alone, but rather lack of sufficient intelligence." It is
significant that neither to the trial court nor to the appellant's counsel has the mitigating circumstance
of lack of instruction entered the mind. No attempt was made to prove it, as direct proof, not mere
inference, is required, and must be invoked in the court below (People vs. Mongado, et al., 28 SCRA 642,
[1969]), the reason being that the trial court can best gauge a person's level of intelligence from his
manner of answering questions in court (People v. Manuel, 29 SCRA 337 [1969]). If the trial court did not
consider the mitigating circumstance invoked for the first time here on appeal, it must be because from
appellant's testimony, and even more so from his given occupation as a merchant (T.S.N., p. 3, Sept. 1,
1975), his alleged lack of intelligence never suggested itself to the trial court or to his lawyer, as entitling
him to the mitigating circumstance of lack of instruction.

WHEREFORE, there being no error committed by the trial court, its decision imposing the death penalty,
together with the indemnity awarded, has to be, as it is hereby, affirmed.

SO ORDERED.

II. Persons Criminally Liable

a. Art. 16 to 20, RPC
b. Presidential Decree No. 1612

PRESIDENTIAL DECREE No. 1612

ANTI-FENCING LAW OF 1979

WHEREAS, reports from law enforcement agencies reveal that there is rampant robbery and thievery of
government and private properties;

WHEREAS, such robbery and thievery have become profitable on the part of the lawless elements
because of the existence of ready buyers, commonly known as fence, of stolen properties;

WHEREAS, under existing law, a fence can be prosecuted only as an accessory after the fact and
punished lightly;

WHEREAS, is imperative to impose heavy penalties on persons who profit by the effects of the crimes of
robbery and theft.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers
vested in me by the Constitution, do hereby order and decree as part of the law of the land the
following:

Section 1. Title. This decree shall be known as the Anti-Fencing Law.

Section 2. Definition of Terms. The following terms shall mean as follows:

(a) "Fencing" is the act of any person who, with intent to gain for himself or for another, shall
buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any
other manner deal in any article, item, object or anything of value which he knows, or should be
known to him, to have been derived from the proceeds of the crime of robbery or theft.

(b) "Fence" includes any person, firm, association corporation or partnership or other
organization who/which commits the act of fencing.

Section 3. Penalties. Any person guilty of fencing shall be punished as hereunder indicated:

(a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos
but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period, adding one year for
each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory
penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.

(b) The penalty of prision correccional in its medium and maximum periods, if the value of the
property robbed or stolen is more than 6,000 pesos but not exceeding 12,000 pesos.

(c) The penalty of prision correccional in its minimum and medium periods, if the value of the
property involved is more than 200 pesos but not exceeding 6,000 pesos.

(d) The penalty of arresto mayor in its medium period to prision correccional in its minimum
period, if the value of the property involved is over 50 pesos but not exceeding 200 pesos.
 (e) The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not
exceeding 50 pesos.

(f) The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos.

Section 4. Liability of Officials of Juridical Persons. If the fence is a partnership, firm, corporation or
association, the president or the manager or any officer thereof who knows or should have known the
commission of the offense shall be liable.

Section 5. Presumption of Fencing. Mere possession of any good, article, item, object, or anything of
value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.

Section 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this Act, all stores,
establishments or entities dealing in the buy and sell of any good, article item, object of anything of
value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to
the public, secure the necessary clearance or permit from the station commander of the Integrated
National Police in the town or city where such store, establishment or entity is located. The Chief of
Constabulary/Director General, Integrated National Police shall promulgate such rules and regulations
to carry out the provisions of this section. Any person who fails to secure the clearance or permit
required by this section or who violates any of the provisions of the rules and regulations promulgated
thereunder shall upon conviction be punished as a fence.

Section 7. Repealing Clause. All laws or parts thereof, which are inconsistent with the provisions of this
Decree are hereby repealed or modified accordingly.

Section 8. Effectivity. This Decree shall take effect upon approval.

Done in the City of Manila, this 2nd day of March, in the year of Our Lord, nineteen hundred and
seventy-nine.

RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF SECTION 6 OF PRESIDENTIAL DECREE
NO. 1612, KNOWN AS THE ANTI-FENCING LAW.

Pursuant to Section 6 of Presidential Decree No. 1612, known as the Anti-Fencing Law, the following
rules and regulations are hereby promulgated to govern the issuance of clearances/permits to sell used
secondhand articles obtained from an unlicensed dealer or supplier thereof:

I. Definition of Terms

1. "Used secondhand article" shall refer to any goods, article, item, object or anything of value
obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or
in fact been used.

2. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm, corporation,

association or any other entity or establishment not licensed by the government to engage in
the business of dealing in or of supplying the articles defined in the preceding paragraph.
 3. "Store", "establishment" or "entity" shall be construed to include any individual dealing in the
buying and selling used secondhand articles, as defined in paragraph hereof.

4. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles for
the purpose of resale to third persons.

5. "Station Commander" shall refer to the Station Commander of the Integrated National Police
within the territorial limits of the town or city district where the store, establishment or entity
dealing in the buying and selling of used secondhand articles is located.

II. Duty to Procure Clearance or Permit

1. No person shall sell or offer to sell to the public any used secondhand article as defined herein
without first securing a clearance or permit for the purpose from the proper Station
Commander of the Integrated National Police.

2. If the person seeking the clearance or permit is a partnership, firm, corporation, or

association or group of individuals, the clearance or permit shall be obtained by or in the name
of the president, manager or other responsible officer-in-charge thereof.

3. If a store, firm, corporation, partnership, association or other establishment or entity has a

branch or subsidiary and the used secondhand article is acquired by such branch or subsidiary
for sale to the public, the said branch or subsidiary shall secure the required clearance or permit.

4. Any goods, article, item, or object or anything of value acquired from any source for which no
receipt or equivalent document evidencing the legality of its acquisition could be presented by
the present possessor or holder thereof, or the covering receipt, or equivalent document, of
which is fake, falsified or irregularly obtained, shall be presumed as having been acquired from
an unlicensed dealer or supplier and the possessor or holder thereof must secure the required
clearance or permit before the same can be sold or offered for sale to the public.

III. Procedure for Procurement of Clearances or Permits

1. The Station Commanders concerned shall require the owner of a store or the president,
manager or responsible officer-in-charge of a firm, establishment or other entity located within
their respective jurisdictions and in possession of or having in stock used secondhand articles as
defined herein, to submit an initial affidavit within thirty (30) days from receipt of notice for the
purpose thereof and subsequent affidavits once every fifteen (15) days within five (5) days after
the period covered, which shall contain:

(a) A complete inventory of such articles acquired daily from whatever source and the
names and addresses of the persons from whom such articles were acquired.

(b) A full list of articles to be sold or offered for sale as well as the place where the date
when the sale or offer for sale shall commence.

(c) The place where the articles are presently deposited or kept in stock.
The Station Commander may, at his discretion when the circumstances of each case warrant,
require that the affidavit submitted be accompanied by other documents showing proof of
legitimacy of the acquisition of the articles.

2. A party required to secure a clearance or permit under these rules and regulations shall file an
application therefor with the Station Commander concerned. The application shall state:

(a) The name, address and other pertinent circumstances of the persons, in case of an
individual or, in the case of a firm, corporation, association, partnership or other entity,
the name, address and other pertinent circumstances of the president, manager or
officer-in-charge.

(b) The article to be sold or offered for sale to the public and the name and address of
the unlicensed dealer or supplier from whom such article was acquired.

In support of the application, there shall be attached to it the corresponding receipt or other
equivalent document to show proof of the legitimacy of acquisition of the article.

3. The Station Commander shall examine the documents attached to the application and may
require the presentation of other additional documents, if necessary, to show satisfactory proof
of the legitimacy of acquisition of the article, subject to the following conditions:

(a) If the legitimacy of acquisition of any article from an unlicensed source cannot be
satisfactorily established by the documents presented, the Station Commander shall,
upon approval of the INP Superintendent in the district and at the expense of the party
seeking the clearance/permit, cause the publication of a notice in a newspaper of
general circulation for two (2) successive days enumerating therein the articles acquired
from an unlicensed dealer or supplier, the names and addresses of the persons from
whom they were acquired and shall state that such articles are to be sold or offered for
sale to the public at the address of the store, establishment or other entity seeking the
clearance/permit. In places where no newspapers are in general circulation, the party
seeking the clearance or permit shall, instead, post a notice daily for one week on the
bulletin board of the municipal building of the town where the store, firm,
establishment or entity concerned is located or, in the case of an individual, where the
articles in his possession are to be sold or offered for sale.

(b) If after 15 days, upon expiration of the period of publication or of the notice referred
to in the preceding paragraph, no claim is made with respect to any of the articles
enumerated in the notice, the Station Commander shall issue the clearance or permit
sought.

(c) If, before expiration of the same period for publication of the notice or its posting, it
shall appear that any of the articles in question is stolen property, the Station
Commander shall hold the article in restraint as evidence in any appropriate case to be
filed. Articles held in restraint shall be kept and disposed of as the circumstances of each
case permit, taking into account all considerations of right and justice in the case. In any
case where any article is held in restraint, it shall be the duty of the Station Commander
 concerned to advise/notify the Commission on Audit of the case and comply with such
procedure as may be proper under applicable existing laws, rules and regulations.

4. The Station Commander concerned shall, within seventy-two (72) hours from receipt of the
application, act thereon by either issuing the clearance/permit requested or denying the same.
Denial of an application shall be in writing and shall state in brief the reason/s therefor.

5. The application, clearance/permit or the denial thereof, including such other documents as
may be pertinent in the implementation of Section 6 of P.D. No. 1612 shall be in the forms
prescribed in Annexes "A", "B", "C", "D", and "E" hereof, which are made integral parts of these
rules and regulations.

6. For the issuance of clearances/permit required under Section 6 of P.D. No. 1612, no fee shall
be charged.

IV. Appeals

Any party aggrieved by the action taken by the Station Commander may elevate the decision taken in
the case to the proper INP District Superintendent and, if he is still dissatisfied therewith may take the
same on appeal to the INP Director. The decision of the INP Director may also be appealed to the INP
Director-General whose decision may likewise be appealed to the Minister of National Defense. The
decision of the Minister of National Defense on the case shall be final. The appeal against the decision
taken by a Commander lower than the INP Director-General should be filed to the next higher
Commander within ten (10) days from receipt of notice of the decision. The decision of the INP Director-
General should be appealed within fifteen (15) days from receipt of notice of the decision.

V. Penalties

1. Any person who fails to secure the clearance or permit required by Section 6 of P.D. 1612 or
who violates any of the provisions of these rules and regulations shall upon conviction be
punished as a fence.

2. The INP Director-General shall recommend to the proper authority the cancellation of the
business license of the erring individual, store, establishment or the entity concerned.

3. Articles obtained from unlicensed sources for sale or offered for sale without prior
compliance with the provisions of Section 6 of P.D. No. 1612 and with these rules and
regulations shall be held in restraint until satisfactory evidence or legitimacy of acquisition has
been established.

4. Articles for which no satisfactory evidence of legitimacy of acquisition is established and

which are found to be stolen property shall likewise be held under restraint and shall,
furthermore, be subject to confiscation as evidence in the appropriate case to be filed. If, upon
termination of the case, the same is not claimed by their legitimate owners, the article/s shall be
forfeited in favor of the government and made subject to disposition as the circumstances
warrant in accordance with applicable existing laws, rules and regulations. The Commission on
Audit shall, in all cases, be notified.
 5. Any personnel of the Integrated National Police found violating the provisions of Section 6 of
P.D. No. 1612 or any of its implementing rules and regulations or who, in any manner
whatsoever, connives with or through his negligence or inaction makes possible the commission
of such violations by any party required to comply with the law and its implementing rules and
regulations, shall be prosecuted criminally without prejudice to the imposition of administrative
penalties.

VI. Visitorial Power

It shall be the duty of the owner of the store or of the president, manager or responsible officer-in-
charge of any firm, establishment or other entity or of an individual having in his premises articles to be
sold or offered for sale to the public to allow the Station Commander or his authorized representative to
exercise visitorial powers. For this purpose, however, the power to conduct visitations shall be exercise
only during office or business hours and upon authority in writing from and by the INP Superintendent in
the district and for the sole purpose of determining whether articles are kept in possession or stock
contrary to the intents of Section 6 of P.D. No. 1612 and of these rules and regulations.

VII. Other Duties Imposed Upon Station Commanders and INP District Superintendent and Directors
Following Action on Applications for Clearances or Permits

1. At the end of each month, it shall be the duty of the Station Commander concerned to:

(a) Make and maintain a file in his office of all clearances/permit issued by him.

(b) Submit a full report to the INP District Superintendent on the number of applications
for clearances or permits processed by his office, indicating therein the number of
clearances/permits issued and the number of applications denied. The report shall state
the reasons for denial of an application and the corresponding follow-up actions taken
and shall be accompanied by an inventory of the articles to be sold or offered for sale in
his jurisdiction.

2. The INP District Superintendent shall, on the basis of the reports submitted by the Station
Commander, in turn submit quarterly reports to the appropriate INP Director containing a
consolidation of the information stated in the reports of Station Commanders in his jurisdiction.

3. Reports from INP District Superintendent shall serve as basis for a consolidated report to be
submitted semi-annually by INP Directors to the Director-General, Integrated National Police.

4. In all cases, reports emanating from the different levels of the Integrated National Police shall
be accompanied with full and accurate inventories of the articles acquired from unlicensed
dealers or suppliers and proposed to be sold or offered for sale in the jurisdictions covered by
the report.

These implementing rules and regulations, having been published in a newspaper of national circulation,
shall take effect on June 15, 1979.

FOR THE CHIEF OF CONSTABULARY DIRECTOR-GENERAL, INP:

c. Presidential Decree No. 1829

PRESIDENTIAL DECREE No. 1829

PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS

WHEREAS, crime and violence continue to proliferate despite the sustained vigorous efforts of the
government to effectively contain them;

WHEREAS, to discourage public indifference or apathy towards the apprehension and prosecution of
criminal offenders, it is necessary to penalize acts which obstruct or frustrate or tend to obstruct or
frustrate the successful apprehension and prosecution of criminal offenders;

NOW, THEREFORE, I, FERDINAND, E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by law do hereby decree and order the following:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:

(a) preventing witnesses from testifying in any criminal proceeding or from reporting the
commission of any offense or the identity of any offender/s by means of bribery,
misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with
intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any
investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or
official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable
ground to believe or suspect, has committed any offense under existing penal laws in order to
prevent his arrest prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or
the execution of a judgment, or concealing his true name and other personal circumstances for
the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or court
orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or object with knowledge of its
falsity and with intent to affect the course or outcome of the investigation of, or official
proceedings in, criminal cases;
 (g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from,
discounting, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his person,
honor or property or that of any immediate member or members of his family in order to
prevent such person from appearing in the investigation of, or official proceedings in, criminal
cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from
appearing in the investigation of or in official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement agencies
from apprehending the offender or from protecting the life or property of the victim; or
fabricating information from the data gathered in confidence by investigating authorities for
purposes of background information and not for publication and publishing or disseminating the
same to mislead the investigator or to the court.

If any of the acts mentioned herein is penalized by any other law with a higher penalty, the higher
penalty shall be imposed.

Section 2. If any of the foregoing acts is committed by a public official or employee, he shall in addition
to the penalties provided thereunder, suffer perpetual disqualification from holding public office.

Section 3. This Decree shall take effect immediately.

Done in the City of Manila, this 16th day of January, in the year of Our Lord, nineteen hundred and
eighty-one.

d. Art. 50 to 57, RPC

4. People v. Yanson-Dumancas, G.R. No. 133527-28, 13 December 1999, 320 SCRA 584

G.R. No. 133527-28 December 13, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JEANETTE (GINETTE) YANSON-DUMANCAS, POL. COL. NICOLAS TORRES, POL. INSP. ADONIS ABETO,
POL. OFFICER MARIO LAMIS Y FERNANDEZ, DOMINADOR GEROCHE Y MAHUSAY, JAIME
GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, CESAR PECHA,
CHARLES DUMANCAS (Acquitted), POL. OFFICER JOSE PAHAYUPAN (Acquitted), VICENTE CANUDAY,
JR. (Acquitted), accused, JEANETTE (GINETTE) YANSON-DUMANCAS, POL. COL. NICOLAS TORRES, POL.
INSP. ADONIS ABETO, POL. OFFICER MARIO LAMIS Y FERNANDEZ, DOMINADOR GEROCHE Y
MAHUSAY, JAIME GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO,
CESAR PECHA, accused-appellants.

MELO, J.:
Accused-appellants were charged with Kidnapping for Ransom with Murder under two Informations
which pertinently read:

CRIMINAL CASE NO. 94-15562

The undersigned hereby accuses JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS,

(BOTH AS PRINCIPALS BY INDUCTION), POLICE COL. NICOLAS M. TORRES (AS PRINCIPAL
BY INDUCTION AND BY DIRECT AND/OR INDISPENSABLE COOPERATION), POLICE
INSPECTOR ADONIS C. ABETO, POLICE OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE
PAHAYUPAN, VICENTE CANUDAY, JR., DOMINADOR GEROCHE Y MAHUSAY, JAIME
GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, ALL
AS PRINCIPALS BY PARTICIPATION, CESAR PECHA, and EDGAR HILADO, BOTH AS
ACCESSORIES, of the crime of KIDNAPPING FOR RANSOM WITH MURDER, committed as
follows:

That during the period beginning in the late morning of August 6, 1992 and ending the
late evening of the following day in Sitio Pedrosa, Barangay Alijes, Bacolod City,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and concurring in a common criminal intent and
execution thereof with one another, save for the accessories, for the purpose of
extracting or extorting the sum of P353,000.00, did, then and there willfully, unlawfully,
and feloniously, to wit:

Acting upon the inducement of spouses Jeanette Yanson-Dumancas and Charles

Dumancas, under the direction cooperation and undue influence, exerted by P/Col.
Nicolas M. Torres, taking advantage of his position as the Station Commander of the
Philippine National Police, Bacolod City Station, with the direct participation and
cooperation of Police Inspector Adonis C. Abeto, other police officers Vicente Canuday,
Jr., Jose Pahayupan, Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin
Divinagracia, Teody Delgado, Jaime Gargallano, also taking advantage of their respective
positions, and Dominador Geroche, concurring and affirming in the said criminal design,
with the use of motor vehicle abduct, kidnap and detain one RUFINO GARGAR, JR. and
shortly thereafter at around 11 o'clock in the evening of August 7, 1993 (1992), failing in
their aforesaid common purpose to extort money and in furtherance of said conspiracy,
with evident premeditation and treachery nocturnity and the use of motor vehicle, did
then and there shot and kill the said victim, while being handcuffed and blindfolded;
that accused Cesar Pecha and Edgar Hilado, with knowledge that said Gargar was victim
of violence, did then and there secretly bury the corpse in a makeshift shallow grave or
the purpose of concealing the crime of murder in order to prevent its discovery for a fee
of P500.00 each; aforesaid act or acts has caused damage and prejudice to the heirs of
said victim, to wit:

P50,000.00 — as indemnity for death;

50,000.00 — actual damages;

300,000.00 — compensatory damages (lost income);

 100,000.00 — moral damages;

50,000.00 — exemplary damages.

CONTRARY TO LAW.

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CRIMINAL CASE NO. 94-15563

The undersigned hereby accused JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS

(BOTH AS PRINCIPALS BY INDUCTION), POLICE COL. NICOLAS M. TORRES (AS PRINCIPAL
BY INDUCTION AND BY DIRECTION AND/OR INDISPENSABLE COOPERATION), POLICE
INSPECTOR ADONIS C. ABETO, POLICE OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE
PAHAYUPAN, VICENTE CANUDAY, JR., DOMINADOR GEROCHE Y MAHUSAY, JAIME
GARGALLANO, ROLANDO B. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, ALL
AS PRINCIPALS BY PARTICIPATION, CESAR PECHA and EDGAR HILADO, BOTH AS
ACCESSORIES, of the crime of KIDNAPPING FOR RANSOM WITH MURDER, committed as
follows:

That during the period beginning in the late morning of August 6, 1992 and ending the
late evening of the following day in Sitio Pedrosa, Barangay Alijes, Bacolod City,
Philippines and within the jurisdiction of this Honorable Court, above-named accused,
conspiring, confederating and concurring in a common criminal intent and execution
thereof with one another, save for the accessories, for the purpose of extracting or
extorting the sum of P353,000.00, did, then and there willfully, unlawfully, and
feloniously, to wit:
Acting upon the inducement of spouse Jeanette Yanson-Dumancas and Charles
Dumancas, under the direction, cooperation and undue influence, exerted by P/Col.
Nicolas M. Torres, taking advantage of his position as the Station Commander of the
Philippine National Police, Bacolod City Station, with the direct participation and
cooperation of Police Inspector Adonis C. Abeto, other police officers Vicente Canuday,
Jr., Jose Pahayupan, Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin
Divinagracia, Teody Delgado, Jaime Gargallano, also taking advantage of their respective
positions, and Dominador Geroche, concurring and affirming in the said criminal design,
with the use of motor vehicle abduct, kidnap and detain one DANILO LUMANGYAO and
shortly thereafter at around 11 o'clock in the evening of August 7, 1993 (1992), failing in
their aforesaid common purpose to extort money and in furtherance of said conspiracy,
with evident premeditation and treachery nocturnity and the use of motor vehicle, did
then and there shot and kill the said victim, while being handcuffed and blindfolded,
that accused CESAR PECHA and EDGAR HILADO, with knowledge that said Lumangyao
was victim of violence, did then and there secretly bury the corpse in a makeshift
shallow grave for the purpose of concealing the crime of murder in order to prevent its
discovery for a fee of P500.00 each; aforesaid act or acts has caused damage and
prejudice to the heirs of said victim, to wit:

P150,000.00 — as indemnity for death;

50,000.00 — actual damages;

300,000.00 — compensatory damages (lost

income);

100,000.00 — moral damages;

P50,000.00 — exemplary damages.

CONTRARY TO LAW.

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All thirteen accused (excluding Edgar Hilado, who was then still at large) entered pleas of NOT GUILTY
upon arraignment conducted on February 14, 1994 (per Certificates of Arraignment, Record Vol. I-A, pp.
372-384). After a joint trial (excluding accused Edgar Hilado, who upon arraignment on April 11, 1994,
pleaded NOT GUILTY [Record, Vol. II, p. 866], was tried separately), judgment was rendered acquitting
Charles Dumancas, Police Officers Jose Pahayupan and Vicente Canuday, Jr., but convicting the rest of
the accused for the crime charged, to wit:

Wherefore, finding the first nine (9) Accused herein —

1. JEANNETTE (GINNETTE) YANSON-DUMANCAS

2. POL. COL. NICOLAS TORRES

3. POL. INSP. ADONIS ABETO

4. POL. OFFICER MARIO LAMIS Y FERNANDEZ

5. DOMINADOR GEROCHE Y MAHUSAY

6. JAIME GARGALLANO

7. ROLANDO R. FERNANDEZ

8. EDWIN DIVINAGRACIA

9. TEODY DELGADO and

10. CESAR PECHA

GUILTY BEYOND REASONABLE DOUBT AS PRINCIPALS and CESAR PECHA as accessory in

the two (2) informations filed in these cases, JUDGMENT is hereby rendered against
them, as follows:

1. In CRIMINAL CASE NO. 94-15562, each of the Accused charged as principal is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA, with all the accessories of the
law; to indemnify, jointly and severally, the Heirs of Rufino Gargar Jr. in the amount of
P50,000.00 as indemnity for death; P25,000.00 as actual damages; P300,000.00 for
compensatory damages (lost income); P100,000.00 in moral damages and P50,000.00 as
exemplary damages; and to pay the cost. Accused CESAR PECHA who is charged as an
 accessory is hereby sentenced to suffer the penalty of imprisonment of two (2) years
four (4) months and one (1) day of Prision Correccional as minimum to eight years and
one day of Prision Mayor as maximum and to pay one-tenth of the cost;

2. In CRIMINAL CASE NO. 94-15563, each of the Accused charged as principal is hereby
sentenced to suffer the penalty of Reclusion Perpetua, with all the accessories of the
law, indemnify jointly and severally, the Heirs of DANILO LUMANGYAO in the amount of
P50,000.00 as indemnity for death; P25,000.00 as actual damages; P100,000.00 as
compensatory damages (lost income); P100,000.00 as moral damages; P50,000.00 as
exemplary damages; and to pay the cost. Accused CESAR PECHA who is charged as an
accessory is hereby sentenced to suffer the penalty of imprisonment of two (2) years
four (4) months and one (1) day of prision correccional as minimum to eight (8) years
and one (1) day of Prision Mayor as maximum and to pay one-tenth of the cost.

Accused CHARLES DUMANCAS, Police Officers JOSE PAHAYUPAN and VICENTE CANUDAY
JR. are hereby Acquitted of the crime charged for failure of the prosecution to prove
their guilt beyond reasonable doubt, with cost de officio.

SO ORDERED.

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All ten accused filed their respective notices of appeal, and are now before us on review. After going
through the voluminous record of the case, the Court adopts the following summary of facts by the
court a quo, to wit:

February 20, 1992

Jeanette Yanson Dumancas was swindled in a fake gold bar transaction losing P352,000
to Danilo Lumangyao and his cohort.

10:30 A.M. August 5, 1992 present in the house of Rolando Fernandez were:

a) Dominador Geroche

b) Rolando Fernandez

c) Jaime Gargallano

d) Edwin Divinagracia

e) Teody Delgado

f) Mario Lamis and

g) Moises Grandeza

On this occasion Mario Lamis brought out the plan to abduct Danilo Lumangyao and
Rufino Gargar, Jr. because they swindled the Dumancas family.

4:30 P.M. August 5, 1992

The group of:

a) Dominador Geroche

b) Mario Lamis

c) Rolando Fernandez

d) Jaime Gargallano

e) Edwin Divinagracia

f) Teody Delgado

g) Moises Grandeza

went to the office of Col. Nicolas Torres at PNP Headquarters where they met the
colonel who told them that if you find these two people (referring to Lumangyao and
Gargar) to bring and hide them at Dragon Lodge Motel.

8:30 A.M., August 6, 1992

State witness Moises Grandeza went to the house of Helen Tortocion to invite Danilo
Lumangyao and Rufino Gargar Jr. to "Tinolahan Eatery" at Shopping Center Terminal but
found only Gargar Jr., as Lumangyao went to the house of a certain Bardot at BBB
Avenue, this City.

Moises Grandeza together with Gargar Jr. proceeded to the house of Bardot where they
found Lumangyao and thereafter the three of them went to "Tinolahan Eatery".

9:00-10:00 A.M. August 6, 1992

The three arrived at "Tinulahan Eatery". Waiting for them were:

a) Dominador Geroche

b) Jaime Gargallano

c) Edwin Divinagracia

d) Rolando Fernandez

e) Teody Delgado; and

f) Mario Lamis

Then a) Fernandez b) Geroche and c) Lamis entered "Tinulahan" and handcuffed

Lumangyao and Gargar.

Waiting in the red Toyota Land Cruiser (Plate No. 689) were:

a) Gargallano

b) Divinagracia; and

c) Delgado

10:30 A.M. August 6, 1992

Lumangyao and Gargar were brought to the Office of Jeanette at Ceres Compound on
board red toyota land cruiser by:

a) Moises Grandeza

b) Gargallano

c) Lamis

d) Geroche
 e) Divinagracia

f) Delgado, and

g) Fernandez

It was there that a) Divinagracia and, b) Fernandez manhandled Lumangyao and Gargar.
Jeanette then investigated the two victims on the whereabouts of the money that they
swindled from her and the two answered that it was already spent.

It was then that Jeanette ordered Doming (Geroche) to take care of the two
(Lumangyao and Gargar).

3:00 P.M. August 6, 1992

From Ceres Compound and while the group, together with the two victims, were
already at Dragon Lodge Motel, thereafter,

a) Abeto

b) Pahayupan, and

c) Canuday

arrived and investigated the two victims regarding the whereabouts of the gold bar and
the two replied that it was with Helen Tortocion.

4·:00 P.M. August 6, 1992

a) Moises Grandeza

b) Fernandez, and

c) Geroche

went to the office of Col. Torres to inform him that Lumangyao and Gargar were already
captured. So Col. Torres ordered them to keep the two victims so that nobody would
see them. After receiving this instructions they went back to Dragon Lodge. Meanwhile,
Geroche again interrogated the victims on where the money was — if there was still any
let and Geroche received the same negative reply.

Past 6:00 p.m. August 6, 1992

The group, with the two captives transferred to D'Hacienda Motel.

9:00 P.M. August 6, 1992

At D'Hacienda Motel, Jeanette and Charles Dumancas, together with Rose Ines arrived.
Jeanette and Rose Ines investigated the victims where they kept the money that they
swindled and the two gave the same reply that it was already gone. Jeanette then
reiterated her order to Geroche to take care of the two.

9:30 P.M. August 6, 1992

The group transferred to Moonlight Inn Motel.

3:00 A.M. August 7, 1992

The group transferred again to Casamel Lodge Motel.

10:00 A.M. August 7, 1992

The group returned to D'Hacienda Motel and it was there that the plan was pursued to
liquidate the two victims at 12:00 midnight.

The persons who conceived of this plan were:

a) Geroche, and

b) Fernandez

4:30 P.M. August 7, 1992

1) Canuday

2) Abeto

3) Dudero

4) Lesaca, and

5) Arollado

searched the residence of Helen Tortocion for the gold dust and simulated gold bar per
search warrant 014-92 (Exh. "D") but the search was fruitless.

7:30 P.M. August 7, 1992

The group, including the victims, partook of supper which was charged to Roy Yanson.

Then a) Abeto

b) Canuday, and
 c) Pahayupan

entered the room and asked Fernandez what they are going to do with the two victims
to which Fernandez, replied that he will be responsible for the two.

11:00 P.M. August 7, 1992

a) Geroche

b) Lamis

c) Fernandez, and

d) Moises Grandeza

rode on the red Toyota Land Cruiser to conduct Geroche to his house. The victims were
left behind.

From his house Geroche took an armalite rifle and the group then went back to
D'Hacienda Motel.

12:00 P.M. August 7, 1992

a) Fernandez, and

b) Lamis

blindfolded and handcuffed Lumangyao and Gargar (Exh. "A" and "A-1") and have them
board a vehicle, with

a) Gargallano the driver

b) Geroche sitting in front, and with

c) Moises Grandeza also seated inside.

From D'Hacienda Motel, the group rode on the red toyota land cruiser. They proceeded
to Hda. Pedrosa in Brgy. Alijis. When they arrived there the two victims were ordered to
alight and sit by the side of the road. Geroche then asked Moises Grandeza to hold the
hands of Lumangyao and then Gargar behind their backs. After that —

a) Gargallano was the first to shoot. He shot Gargar at the back of his head (Exh. K) using
a baby armalite. Then

b) Geroche followed suit by shooting Lumangyao with a .45 cal. Pistol at his right lower
jaw (Exh. L).
Thereafter, the two dead bodies were loaded on board the land cruiser and brought to
Hda. Siason where Pecha and Hilado buried them in the shallow grave they dug.

August 8, 1992

In Sitio Cabalagnan were recovered

a) Three (3) empty shells of armalite rifle and one .45 cal. Empty shell (Exh. "G", "G-2")

In Hda. Siason were recovered

a) the dead bodies of Rufino Gargar, Jr. and Danilo Lumangyao

b) Both of the two victims hands were handcuffed (Exh. "A" and "A-1").

August 9, 1992

The same group again went to see Col. Torres in his office and reported the
extermination of the two and Col. Torres promptly gave the instruction that "you who
are here inside, nobody knows what you have done but you have to hide because the
NBI are after you.

August 10, 1992

a) Lamis

b) Geroche

c) Fernandez

d) Divinagracia

e) Gargallano

f) Delgado, and

g) Moises Grandeza

went back to the office of Col. Torres and this time he told the group "to hide because
the NBI are now investigating".

4:00 P.M. August 12, 1992

The same group that liquidated Lumangyao and Gargar again went back to the office of
Col. Torres where they were asked by Col. Torres to escort him to Ceres Compound
because he would like to borrow money from Ricardo Yanson as Col. Torres said that he
has huge debts to pay. Col. Torres was able on this occasion, to meet Ricardo Yanson.
On this same day,

a) Moises Grandeza

b) Lamis, and

c) Geroche

were picked up in a land cruiser by the driver of the Yansons' to go to the house of
Fernandez where Geroche will give the money to the group. Each member of the group,
after the check, which was drawn by Yanson, was encashed were given the amount of
P1,700.00 each.

August 13, 1992

Nenita Bello went to the office of Col. Torres to plead for his help in regard to the death
of her relatives Lumangyao and Gargar but was promptly turned down by Colonel Torres
with the curt remark that her case was very difficult because it involves the "military"
and some "big times".

The Sangguniang Panlungsod of Bacolod City also passed, on this day, Resolution No.
328, series of 1992 urging the National Bureau of Investigation (NBI) to conduct an
investigation on the death of "salvage victims" Danilo Lumangyao and Rufino Gargar, Jr.
as soon as possible (Exh. "I").

September 24, 1992

The bodies of Rufino Gargar Jr. and Danilo Lumangyao were exhumed at Brgy.
Buenavista Cemetery, Balintawak, Escalante, Negros Occidental and autopsies were
conducted (Exhs. "M" and "N") by Dr. Ricardo Jaboneta, Medico Legal Officer of the NBI.

a) Found on the body of Rufino Gargar, Jr. (per examination report, Exh. "M") among
others, were ligature marks, wrist joint, right side (Exh. "M-2"), and

b) Gunshot wound (Exh. "M-1")

As to Danilo Lumangyao, the exhumation report (Exh. "N" disclose

a) Ligature marks, right wrist (Exh. "N-2") and among others, and

b) Gunshot wound (Exh. "N-1")

After the National Bureau of Investigation, Bacolod Office, conducted its investigation,
the State Prosecutors of the Department of Justice took over and the result were the
filing of these two criminal cases of Kidnapping with Murder against the above-named
accused.
 (pp. 73-85, Decision;
pp. 202-214, Rollo.)

After a thorough review of the factual findings of the trial court vis-à-vis the evidence on record, we find
ourselves unable to agree with the conclusions arrived at by the trial court convicting all 10 accused-
appellants; rather, we concur in the suggestion of the Solicitor General, that accused-appellants
Jeanette Yanson-Dumancas and Police Inspector Adonis Abeto should be acquitted. Too, by reason of his
supervening death, accused-appellant Police Col. Nicolas Torres is acquitted. The judgment of conviction
of the rest of the accused-appellants is to be affirmed.

A. Jeanette (Ginette) Yanson-Dumancas

On the case of accused-appellant Jeanette Yanson-Dumancas (Jeanette, for short), the information
charged her of the crime of kidnapping for ransom with murder as principal by induction together with
her husband, Charles, who was found by the trial court not guilty of the crime.

Art. 17, Revised Penal Code, provides:

Art. 17. Principals. — The following are considered principals:

1. Those who take a direct part in the execution of the act;

2. Those who directly force or induce others to commit it.

3. Those who cooperate in the commission of the offense by another act without which
it would not have been accomplished.

What the Court now has to examine is whether or not sufficient evidence was adduced by the
prosecution to prove beyond reasonable doubt that Jeanette indeed performed any of the following
acts: (a) directly forcing the killers to commit the crime, or (b) directly inducing them to commit the
crime.

There are 2 ways of directly forcing another to commit a crime, namely: (i) by using irresistible force, or
(ii) by causing uncontrollable fear. Upon review of the testimony of all the witnesses of the prosecution,
we find nothing to conclude that Jeanette used irresistible force or caused uncontrollable fear upon the
other accused-appellants. From the factual findings of the trial court, it is patent that the plan to abduct
and liquidate the victims was hatched on August 5, 1992 (10:30 A.M.) without Jeanette's involvement or
participation whatsoever (p. 202, Rollo). The record is entirely bereft of any evidence to show that
Jeanette directly forced the participants of the said meeting to come up with such plan, by either using
irresistible force or causing uncontrollable fear. The only basis relied upon by the trial court in arriving at
its conclusion that Jeanette is guilty of the crime as principal by inducement, is the supposed
"commands" or order given by her to accused-appellant Dominador Geroche on two occasions (one
inside the Ceres Compound: p. 205, Rollo, and the other in D'Hacienda Motel: p. 207, Rollo). By no
stretch of the imagination may these so-called "commands", standing alone, be considered as
constituting irresistible force or causing uncontrollable fear.
Likewise, there are 2 ways of directly inducing another to commit a crime, namely: (i) by giving a price,
or offering reward or promise, and (ii) by using words of command. The Court finds no evidence, as did
the trial court, to show that Jeanette offered any price, reward, or promise to the rest of accused-
appellants should they abduct and later kill the victims in this case. If at all, the prosecution witness
mentioned the name of Ricardo Yanson as having lent money to accused-appellant Col. Torres to be
used for paying the latter's debts or obligations. But definitely, no money ever came from Jeanette
herself. The trial court's surmise that the money delivered by Ricardo Yanson to the group was with the
knowledge and approval of Jeanette in completely baseless.

The only matter left for consideration is whether the order supposedly given by Jeanette to accused-
appellant Geroche "to take care of the two" constitutes words of command which may be considered
sufficient basis to convict Jeanette as principal by inducement.

In order that a person may be convicted as principal by inducement, the following must be present: (1)
the inducement be made with the intention of procuring the commission of the crime, and (2) such
inducement be the determining cause of the commission by the material executor (U.S. vs. Indanan, 24
Phil. 203 [1913]). To constitute inducement, there must exist on the part of the inducer the most
positive resolution and the most persistent effort to secure the commission of the crime, together with
the presentation to the person induced of the very strongest kind of temptation to commit the crime.

By the foregoing standards, the remark of Jeanette to "take care of the two" does not constitute the
command required by law to justify a finding that she is guilty as a principal by inducement. As we held
in U.S. vs. Indanan, supra, "a chance word spoken without reflection, a wrong appreciation of a
situation, an ironical phrase, a thoughtless act, may give birth to a thought of, or even a resolution to
crime in the mind of one for some independent reason predisposed thereto without the one who spoke
the word or performed the act having any expectation that his suggestion would be followed or any real
intention that it produce the result. In such case, while the expression was imprudent and the results of
it grave in the extreme, he (the one who spoke the word or performed the act) would not be guilty of
the crime committed" (p. 219).

Furthermore, the utterance which was supposedly the act of inducement, should precede the
commission of the crime itself (People vs. Castillo, July 26, [1966]). In the case at bar, the abduction,
which is an essential element of the crime charged (kidnapping for ransom with murder) has already
taken place when Jeanette allegedly told accused-appellant Geroche to "take care of the two." Said
utterance could, therefore, not have been the inducement to commit the crime charged in this case.

Most importantly, it was duly proven by no less than the prosecution witness himself, Moises Grandeza,
that the intention of Jeanette was but to allow the law to its course, when in his cross-examination, the
following transpired:

ATTY. PARREÑO:

Q. And according to your testimony this morning, Jeanette Dumancas

said, what more can we do that swindling transpired four months ago,
definitely that money could nowhere be around. Would you confirm
that you testified that this morning before this Court? Is that correct?
 A. Yes, sir.

Q. Mr. Witness, this is very important. Please make a vivid recall. When
Danilo Lumangyao made that answer that the money was not around
and Jeanette Dumancas said what's the use, the money is now nowhere
to be found as four months have already transpired, did not Jeanette
Dumancas tell Doming: "Doming, bring these two to the PC or police and
I will call Atty. Geocadin so that proper cases could be filed against
them?" Kindly make a recall on that.

A. Yes, sir.

(pp. 54-
55, tsn
Feb. 14,
1994)

Thus, even the veracity of the allegation that Jeanette uttered the words: "take care of the two" is put to
some reasonable doubt by the prosecution witness himself. The remark, if made at all, cannot by any
stretch of the imagination, be basis for the conviction of Jeanette.

People vs. Manambit (271 SCRA 344 [1997]) finds apt application, to wit:

In criminal law, the quantum of evidence for conviction is that which produces moral
certainty in an unprejudiced mind that the accused is guilty beyond reasonable doubt,
But, if the evidence is susceptible of two interpretations, one consistent with the
innocence of the accused and the other consistent with his guilt, the accused must be
acquitted.

B. Police Inspector Adonis Abeto

With respect to accused-appellant Abeto, we quote with approval the observations of the Solicitor
General as follows:

Police Inspector Adonis C. Abeto's appeal is meritorious. Be it remembered that Abeto's

only participation was to serve the search warrant on Helen Tortocion's residence and
the subsequent interrogation of the two victims at the Hacienda Motel. He was never
part of the conspiracy to abduct and liquidate the two victims. He is similarly situated as
that of Canuday and Pahayupan.
 The trial court, in acquitting Canuday and Pahayupan had this to say:

The evidence against Officer CANUDAY, JR. shows that in the afternoon
of August 6, 1992, together with Officers ABETO and PAHAYUPAN, they
went to Dragon Lodge Motel to investigate LUMANGYAO and GARGAR,
JR. as to the whereabouts of the gold (fake) bar used in swindling
JEANE'TTE. The two captives answered that it is with HELEN
TORTOCION. A subsequent search of Tortocion's house led by Officer
ABETO yielded no fake gold bar. Meanwhile, in the evening of August 7,
1992, Officers ABETO, CANUDAY, JR., and PAHAYUPAN showed up at
D'Hacienda Motel to inquire from FERNANDEZ what he is going to do
with the two.

Like Officer Pahayupan, his being in the company of Officers Abeto, on

the two occasions can not give rise, to without proof of previous
agreement, a conspiracy. Thus, being present at the scene of the crime
is not by itself sufficient to establish conspiracy, as already averted to
previously. So does mere companionship.

(
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After due consideration of accused-appellant Abeto's constitutional right to the presumption of

innocence, coupled with the presumption of regularity in the performance of his official functions
having simply followed the order of his superior officers, much is left to be desired before the Court can
sustain the trial court's conviction of accused-appellant Abeto. The two presumptions negate the
inadequate proof adduced against accused-appellant Abeto, who must perforce be acquitted, in much
the same manner that accused Canuday, Jr. and Pahayupan, who being similarly situated, were cleared
and absolved.
 C. Police Col. Nicolas M. Torres

As for accused-appellant Col. Torres, who passed away during the pendency of this appeal, the following
rule laid down by this Court in People vs. Bayotas (236 SCRA 239 [1994]) applies:

1. Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. As opined by Justice Regalado,
in this regard, "the death of the accused prior to final judgment terminates his criminal
liability and only the civil liability directly arising from and based solely on the offense
committed, i.e., civil liability ex delicto in senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if
the same may also be predicated on a source of obligation other than delict. Article
1157 of the Civil Code enumerates these other sources of obligation from which the civil
liability may arise as a result of the same act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) xxx xxx xxx

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil action and
subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This
separate civil action may be enforced either against the executor/administrator of the
estate of the accused, depending on the source of obligation upon which the same is
based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file a
separate civil action by prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private-offended party instituted together
therewith the civil action. In such case, the statute of limitations on the civil liability is
deemed interrupted during the pendency of the criminal case, conformably with
provisions of Article 1155 of the Civil Code, that should thereby avoid any apprehension
on possible privation of right by prescription.
With the application of the above set of rules to accused-appellant Torres, we hold that his death
extinguished his criminal liability and the civil liability solely based thereon. Accordingly, the appeal of
accused-appellant Torres is forthwith dismissed, such dismissal having the force and effect of an
acquittal.

D. Pol. Officer Mario Lamis y Fernandez, Dominador Geroche y Mahusay, Jaime

Gargallano, Rolando R. Fernandez, Edwin Divinagracia, Teody Delgado, and Cesar Pecha

Now, in regard to the other accused-appellants, after a careful review of the evidence, we find the same
sufficient to affirm their conviction.

These accused-appellants assail the credence given by the trial court to the eyewitness account of
Moises Grandeza. Even after a thorough perusal of their main appellants' brief (pp. 327-498, Rollo), plus
the separate briefs of accused-appellants Geroche (pp. 1453-1627) and Pecha (pp. 828-1009, Rollo), we
find no cogent reason to depart from the well settled rule that when it comes to the issue of credibility
of witnesses, the factual findings of the trial court is generally accorded great weight. In People
vs. Tañedo (266 SCRA 34 [1997]) the Court had occasion to reiterate the ruling that findings of fact of the
trial court pertaining to the credibility of witnesses command great respect since it had the opportunity
to observe their demeanor while they testified in court. The briefs of accused-appellants Lamis, et al. are
replete with generalities and legal principles relating to the issue, but are utterly wanting in relevant
particulars which may be the basis to rule that indeed, the trial court erred in lending full credence to
the testimony of witness Grandeza on the matter. As held in People vs. Ramirez 266 SCRA 335 [1997]),
unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might
affect the result of the case, his assessment on credibility must be respected.

In an attempt to buttress the contention that witness Grandeza's testimony should not have been given
credence by the court a quo, accused-appellants referred to supposed inconsistencies between
Grandeza's sworn statements before investigators vis-à-vis his testimony in court (pp. 349-359, Rollo;
and 1465-1468, Rollo). The Court, however, is not impressed. This will not be the first occasion for us to
hold that discrepancies between the statements of the affiant in his affidavit and those made by him on
the witness stand do not necessarily discredit him since ex-parte affidavits are generally incomplete —
affidavits are generally subordinated in importance to open court declarations (People vs. Padao, 267
SCRA 64 [1997]). A contradiction between a witness' affidavit and his testimony in open court may
almost be explained by the fact that, being taken ex parte, an affidavit is often incomplete and
inaccurate, sometimes from partial suggestions, and sometimes from the want of suggestions and
inquiries (Sumalpong vs. Court of Appeals, 268 SCRA 764 [1997]). Grandeza's perceived failure to
mention anything in his 3 affidavits pertaining to the supposed meetings where the criminal plot was
hatched, does not necessarily render his testimony in court unworthy of credit.

In his brief, accused-appellant Geroche cites Grandeza's failure to identify one of their co-accused,
Charles Dumancas, in open court, and the variance on the alleged instructions given by Jeanette, and
the failure by Grandeza to mention the supposed meetings in his previous affidavits, as grounds to
totally disregard Grandeza's entire testimony for being unworthy of credence (pp. 1461-1469, Rollo).
Indirectly, accused-appellant Geroche wants this Court to apply the maxim falsus in uno, falsus in
omnibus. In this regard, we held in People vs. Pacis (130 SCRA 540 [1984]):

The maxim of "falsus in uno falsus in omnibus," however, is not a positive rule of law.
Neither is it an inflexible one of universal application. If a part of a witness' testimony is
found true, it cannot be disregarded entirely. The testimony of a witness may be
believed in part and disbelieved in part.

Also in People vs. Li Bun Juan (17 SCRA 934 [1966]) we ruled:

. . . In this connection it must be borne in mind that the principle falsus

in uno falsus in omnibus is not an absolute one, and that it is perfectly
reasonable to believe the testimony of a witness with respect to some
facts and disbelieve it with respect to other facts. In People vs. Keller, 46
O.G. No. 7, pp. 3222-3223, the following was quoted with approval by
the Court of Appeals from 1 Moore on Facts, p. 23:

18. Testimony may be partly credited and partly rejected. — Trier of

facts are not bound to believe all that any witness has said; they may
accept some portions of his testimony and reject other portions,
according to what seems to them, upon other facts and circumstances
to be the truth . . . Even when witnesses are found to have deliberately
falsified in some material particulars, the jury are not required to reject
the whole of their uncorroborated testimony, but may credit such
portions as they deem worthy of belief.

The grounds relied upon by accused-appellant Geroche do not, therefore, constitute cogent reasons to
discredit the testimony of eyewitness Grandeza in its entirety.
As regards accused-appellant Geroche's defense of alibi, it is settled that alibi cannot prevail over
positive identification (People vs. Garma, 271 SCRA 517 [1997]). Being easy to fabricate and difficult to
disprove, alibi cannot prevail over and is worthless in the face of the positive identification of the
accused-appellant (People vs. Datun, 272 SCRA 380 [1997]). Besides, the record is bereft of strong and
convincing evidence that accused-appellant could not have been at the scene of the crime because the
certification proffered in support thereof stated that he was in Mt. Calandog only after the commission
of the crime. And, as aptly stated by the Solicitor General in the People's brief, "the trial court expressed
puzzlement why this supposed fact was not mentioned in his July 3, 1993 affidavit . . . The first impulse
of an innocent man when accused of a wrongdoing is to express his innocence at the first opportune
time. The People can only conclude that Geroche's defense of alibi is but an afterthought" (p.
1723, Rollo).

As to accused-appellant Cesar Pecha's case, the Court finds it difficult to believe that he had no
knowledge that the 2 victims he was burying were victims of violence. The deceased were surely
bloodied from their gunshot wounds and were in fact still handcuffed when exhumed from their shallow
grave. It becomes almost impossible for accused-appellant Pecha not to at least, entertain doubts as to
the absence of foul play in this case. He is thus guilty as an accessory to the crime committed under
Paragraph 2, Article 19, of the Revised Penal Code, to wit:

Art. 19. Accessories. — Accessories are those who, having knowledge of the commission
of the crime, and without having participated therein, either as principals or
accomplices, take part subsequent to its commission in any of the following manners:

1. By profiting themselves or assisting the offender to profit by the effects of the crime;

2. By concealing or destroying the body of the crime or the effects or instruments

thereof, in order to prevent its discovery;

3. By harboring, concealing, or assisting in the escape of the principal of the crime,

provided the accessory acts with abuse of his public functions or whenever the author
of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the
Chief Executive, or is known to habitually guilty of some other crime.

All told, there are only reasons to affirm, and none to reverse, the trial court's conviction of accused-
appellants Pol. Officer Mario Lamis y Fernandez, Dominador Geroche y Mahusay, Jaime Gargallano,
Rolando R. Fernandez, Edwin Divinagracia, and Teody Delgado as principals by direct participation of the
crime of kidnapping for ransom with murder, and that of Cesar Pecha as accessory thereto.

Under Article 267 of the Revised Penal Code, when the crime of kidnapping is committed for the
purpose of extorting ransom from the victims, the penalty is death. However, since the crime was
committed before the re-imposition of the death penalty, only reclusion perpetua is imposable upon all
the accused-appellant found guilty of the crime as principals. Accused-appellant Pecha's penalty, as
accessory is 2 degrees lower, which is prision mayor. Applying the indeterminate sentence law, the
penalty to be imposed is 6 months and 1 day (the minimum of prision correccional), as minimum, up to 8
years (within the minimum period of prision mayor), as the maximum.
On the civil liabilities, accused-appellants who are herein convicted of the crime as principals are held
solidarily liable for the amount of P50,000.00 to the heirs of each of the victims, as indemnity for their
death. The amount of P50,000.00, each, by way moral damages and P25,000.00, each, as exemplary
damages are already deemed sufficient. Accused-appellant Cesar Pecha is held liable for one-tenth of
the above amounts. The appealed judgment is silent as to any justification for the other damages
awarded and can therefore not be sustained on appeal.

WHEREFORE, accused-appellants JEANETTE YANSON-DUMANCAS and ADONIS ABETO are hereby

ACQUITTED and forthwith ordered released from detention unless there may be reason for their further
detention on other criminal cases. The case and appeal of NICOLAS TORRES is DISMISSED by reason of
his death. The convictions of all the other accused-appellants for each case filed are AFFIRMED except
for the modification that accused-appellant CESAR PECHA is sentenced for each case to an
indeterminate prison term of six (6) months and one (1) day of prision correccional, as minimum up to
eight (8) years of prision mayor, as maximum. Joint and several civil liability for the accused-appellants
found guilty as principals, is reduced to P50,000.00 for each case, as indemnity for the death of each
victim, P50,000.00 for each case, by way moral damages, and P25,000.00 for each case, by way of
exemplary damages. The civil liability of accused-appellant Cesar Pecha is maintained at one-tenth of
the above amount.

No special pronouncement is made as to costs.

SO ORDERED.

5. People v. Maluenda, G.R. No. 115351, 27 March 1998

G.R. No. 115351. March 27, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DANIEL MALUENDA alias DONGKOY; GIL BUENO;
RAUL MONDAGA alias BOBONG; and RODRIGO LEGARTO, DANIEL MALUENDA and RODRIGO
LEGARTO, Accused-Appellants.

DECISION

PANGANIBAN, J.:

Conspiracy and/or direct participation in a crime may be proven by circumstantial evidence. However,
the comprising circumstances must be duly proven, consistent with each other and lead with moral
certainty to only one conclusion: that the accused is guilty. If the totality of such circumstances
eliminates beyond reasonable doubt the possibility of innocence, conviction is proper; otherwise, the
accused must be acquitted. If said accused, however, took advantage of the effects of the crime and
profited thereby, he can be held criminally liable as an accessory.

The Case
This is an appeal from the March 18, 1994 Decision1 of the Regional Trial Court of Lianga, Surigao del
Sur, Branch 28, in Criminal Case No. L-1174, convicting Raul Mondaga, Rodrigo Legarto and Daniel
Maluenda of kidnapping and sentencing them to reclusin perpetua.

In an Information dated November 20, 1992, Mondaga, Maluenda and Legarto, together with a certain
Gil Bueno, were charged by Prosecutor II Florito G. Cuartero with kidnapping, committed as follows:2

That on the 19th day of August 1992, at about 9:00 oclock in the evening, more or less, at [B]arangay
Diatagon, [M]unicipality of Lianga, [P]rovince of Surigao del Sur, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one
another, did, then and there, willfully, unlawfully and feloniously kidnap Engr. Miguel Resus for the
purpose of extorting money from Engr. & Mrs. Resus, and detaining said Engr. Miguel Resus for a period
of four (4) days, to the damage and prejudice of the victim in the amount of P200,000.00, Philippine
Currency.

CONTRARY TO LAW. (In violation of Article 267 of the Revised Penal Code).

Warrants of arrest for the four accused were issued by the trial court, but Bueno eluded the authorities
and remained at large.3 At their arraignment and with the assistance of counsel, Legarto, Maluenda and
Mondaga pleaded not guilty.4cräläwvirtualibräry

After trial in due course, the lower court found the three accused guilty as charged and disposed as
follows:5

WHEREFORE, consistent with all the foregoing findings, this Court finds all the accuseds [sic], namely,
Raul Mondaga, alias Bobong Gonzaga, 21 years old, single, driver by occupation, as alleged, and resident
of Tagongon, Tagbina, Surigao del Sur; Rodrigo Legarto alias Rudy, 37 years old, married to Magdalena C.
Legarto, gas man of the bankrupt Lianga Bay Logging Co., Inc. and a resident of New Highway, Purok III,
Diatagon, Lianga, Surigao del Sur and Daniel Maluenda, Alias Commander Dongkoy, 22 years old, single,
and a farmer and goldminer, and resident of Purok 1, Barobo, Surigao del Sur, all guilty beyond
reasonable doubt as co-principals of the crime of Kidnapping for Ransom, defined and penalized under
the last paragraph of Article 267 of the Revised Penal Code as charged in the Information, and are
hereby sentenced to suffer the penalty of reclusion perpetua, with all the accessory penalties provided
by law, and to restitute to the private complainants, Engr. Miguel E. Resus and Dra. Bernardita R. Resus,
jointly and severally, the amount of P200,000.00 corresponding to the aggregate of the money in cash
and medicines extorted as per the demand of the accuseds [sic] and given by the kidnap victims wife,
including the subject motorcycle which has been paid for by the victims ransom money; (Exh. E) with the
down payment as per agreement advanced by the couple Resus for a total cost price of P46,895.00 (Exh.
F) and to pay the costs.

Immediately after promulgation of this decision, so as not to render the sentence imposed ineffectual
with respect to accused Rodrigo Legarto, alias Rudy, the bail bond posted for his provisional release is
hereby cancelled and said accused ordered committed to the custody of the Provincial Warden of
Surigao del Sur at Tandag, Surigao del Sur, preparatory to the service of his sentence.
In the service of this sentence, all the accused are ordered immediately turned over to the custody of
the Director, Bureau of Corrections, at Muntinlupa, Metro Manila, pursuant to the mandate of Supreme
Court Circular No. 4-92-A dated April 20, 1992.

Finally, let [an] alias warrant of arrest issue against accused Gil Bueno for distribution to the different
investigative and law-enforcement agencies of the Government for their possible execution and return,
and hereby consigning this case, with respect to said GIL BUENO, to the ARCHIVES to be reinstated to
the active files of criminal cases upon his arrest.

In view of the penalty imposed, Legarto, Maluenda and Mondaga interposed this appeal directly before
this Court.6 However, on March 30, 1995, Mondaga withdrew his appeal.7 Hence, this Court will now
pass upon the criminal liability of Legarto and Maluenda only.

The Facts Version of the Prosecution

In the Appellees Brief, the solicitor general presents the following narration of the kidnapping:8

On August 19, 1992 at around 9:45 in the evening, Engr. Miguel E. Resus (Engr. Resus) and his wife, Dr.
Bernardita B. Resus (Dr. Resus), arrived at their residence/clinic at Diatagon, Lianga, Surigao del Sur,
from a novena they attended. Waiting for the Resus spouses at the clinic which adjoins the Resus
spouses residence were three men who identified themselves as Commander Bobong Gonzaga (who is
actually Raul Mondaga), Commander Bongkoy (who is actually Maluenda) and alias Alex. Upon the
arrival of the Resus spouses, Mondaga declared that they came upon orders of a certain Father Simon,
an alleged NPA Commander, with his directive to solicit money and medicines needed for the victims of
the recent military-NPA encounter at Melale, Agusan del Sur. The trio demanded from the couple
medicines and money in the amount of P20,000.00, but when the couple told them that they did not
have such an amount, they lowered their demand to P10,000.00, and reduced it still to P5,000.00 when
the couple still could not produce the said amount. Finally, the demand was lowered to any amount the
Resus couple could provide. The latter gave the amount of P500.00 plus assorted medicines
worth P800.00. After they were given the money and medicines, the trio demanded that they be driven
by Engr. Resus in his Volkswagen car to San Roque, Barobo, Surigao del Sur, but the couple begged off
reasoning that their car [did] have any sufficient gasoline and that the car was not in good running
condition to travel that night. Mondaga then demanded that very early in the morning, the couple
should prepare the vehicle so Engr. Resus [could] drive them to San Roque, Barobo, Surigao del Sur.
They left the clinic with [a] threat not to tell anybody about their coming, otherwise they [would] kill all
the members of their family and blow-up the clinic.

The next day or on August 20, 1992 at around 5:00 oclock in the morning, Mondaga arrived at the
residence of the Resus couple. Mondaga hurried up Engr. Resus as he [would] meet his companions who
were ferried by Legarto. Engr. Resus then drove Mondaga to Andanan. As the two passed along
Andanan, they met Legarto, who was on his way back to Diatogon after his passengers, i.e., Maluenda
and Alex, alighted from his motorcycle and [waited] for Mondaga and Engr. Resus at Andanan.
Maluenda and Alex then rode with Mondaga and Engr. Resus to Barobo. Upon reaching Barobo,
Mondaga told Engr. Resus that they [would] go to San Francisco instead of going to San Roque. They,
however, did not reach San Francisco, and instead they stopped at Alegria. Upon reaching Alegria,
Mondaga ordered Engr. Resus that he had to go with them. Against his will, Engr. Resus went with the
three. They went to the mountain hiking for almost two (2) hours between the boundary of Cardon and
Alegria. Upon reaching a hut, Mondaga told him that he had forgotten something and had to go back
and that Engr. Resus had to stay there. So Engr. Resus, Maluenda, Alex and Gil Bueno passed the night in
the farmhut.

Meanwhile at the house of the Resus couple, Dr. Resus was informed by the midwife that Mondaga
came at around 4:00 p.m. when Dr. Resus was out. Mondaga told the midwife that he [would] come
back. Mondaga arrived at the Resus clinic at around 7:00 in the evening. Mondaga demanded from Dr.
Resus the amount of P300,000.00 for the release of Engr. Resus. Dr. Resus told Mondaga that she
[could] only produce P10,000.00. Mondaga told Dr. Resus to reserve the amount for he [would] get it
the following morning. He also instructed Dr. Resus to look for the firearm of her husband. Dr. Resus
then searched for the gun (Exh. H) of her husband and after finding it in the cabinet in their room, gave
the same to Mondaga. After [the gun was given to him], Mondaga demanded for the use of Engr. Resus
motorcycle, but Dr. Resus told him that the motorcycle [was] out of order. So Mondaga instructed Dr.
Resus to get the motorcycle of Legarto, which Dr. Resus did.

On August 21, 1992, at around 4:45 a.m. Mondaga arrived at Dr. Resus clinic. Shortly thereafter, Legarto
also arrived in his motorcycle. Mondaga demanded that Dr. Resus go with them but the latter made
excuses particularly her health. Dr. Resus asked that her helper Maria Abne go instead to which
Mondaga agreed. At exactly 5:00 a.m., Mondaga, Legarto and Maria Abne left Dr. Resus clinic, bringing
with them the P10,000.00 Dr. Resus gave and the Magnum 22 of Engr. Resus. The three arrived at
Alegria, San Francisco, Agusan del Sur at around 7:00 a.m. Legarto then safely kept his motorcycle after
which they walked to the forest for about 2 hours until they reached a carabao crossing where Mondaga
left Legarto and Maria Abne for 30 minutes. Mondaga went to the hut where he left Engr. Resus with a
note from Dr. Resus which state[d], Daddy, I have committed only P10,000.00. He gave the note to Engr.
Resus but told Engr. Resus that you can afford P300,000.00. Engr. Resus pleaded with Mondaga that
they [did] not have such amount so Mondaga lowered his demand to P200,000.00. Engr. Resus then
signed the note stating, Mommy, it is up to you to produce this amount. With the note, Mondaga and
Legarto went back to Alegria, while Abne was left with Engr. Resus. Legarto who was driving Engr. Resus
car, went to the house of Nora Gubantes where Dr. Resus was at that time and informed her that
Mondaga [was] waiting [for] her at SSIFA, St. Christine. Dr. Resus went with Legarto at SSIFA, St.
Christine where they met Mondaga, who joined them at the car after which the three proceeded to a
deserted place. Mondaga then handed to Dr. Resus the note written by Engr. Resus where it was written
the P200,000.00 ransom. [sic] Dr. Resus told Mondaga that she [could] only produce P100,000.00
Mondaga agreed to the P100,000.00 on the additional condition that he [would] no longer return the
motorcycle of Legarto and instead to give to Legarto the amount of P50,000.00 as payment for the
motorcycle. Mondaga also instructed Legarto to deliver the amount of P100,000.00 and the original
license of the motorcycle. Dr. Resus and Legarto then went back to the clinic leaving Mondaga behind.

At around 1:30 p.m. of August 21, 1992, Dr. Resus, together with Nora Gubantes, went to Lianga to
secure money from the relatives of Dr. Resus. Since Dr. Resus cousins were out of town, the two
proceeded to San Francisco, Agusan del Sur to see Dr. Presentacion Manatad, the mayor of San
Francisco. Dr. Resus informed Mayor Manatad about the incident and asked the mayor to give her an
amount of P150,000.00 in return for a PNB Check Dr. Resus [would] issue. Mayor Manatad gave her the
amount after Dr. Resus issued PNB Check No. 621330-AJ in the amount of P150,000.00 (Exh. B). Dr.
Resus gave the money to Nora Gubantes with the instruction to give the same to Legarto. Upon reaching
Diatogon, Nora Gubantes gave the money to her husband with the instruction to give the money to
Legarto. Legarto acknowledged receiving the money from Mr. Gubantes on August 22, 1992.
On August 22, 1992, Mondaga arrived at the hut where Engr. Resus was and told that [sic] the latter that
he would be released but that he [would] come back to get the balance of the P300,000.00 in three
months. In the afternoon of August 22, 1992, Engr. Resus and Maria Abne were released. The two were
driven by Legarto in Engr. Resus[] car.

Mondaga, Maluenda and Legarto were later arrested by the police.

Version of the Defense

Appellant Legarto, the Resus couples former part-time driver, denies any criminal involvement in the
kidnapping. He avows that he participated only in the delivery of the ransom money at the insistence of
Dr. Resus herself. In Legartos Supplemental Brief, his counsel submits the following counter-statement
of facts:9

On August 19, 1992, at 9:45 in the evening, Engr. Miguel E. Resus and wife Dr. Bernardita B. Resus,
arrived at their clinic near their residence at Diatagon, Lianga, Surigao del Sur after attending a novena.
(TSN, March 16, 1993, p. 3). There were three (3) men who were waiting for them at the clinic, later
identified as Commander Bobong Gonzaga (Raul Mondaga), Commander Bongkoy (Daniel Maluenda),
and a certain Alex (ibid.. p. 5). Mondaga, upon arrival of the spouses, solicited money and medicines
from them, upon orders of a certain Father Simon, an NPA Commander (ibid.. p. 7). These money and
medicines were needed for the victims of the recent military-NPA encounter at Melale, Agusan del Sur.
(ibid..). At first, the three asked for P20,000.00 (ibid.. p. 8) but lowered it to P10,000.00, and still reduced
it to P5,000.00. Finally, the Resus spouses could only give P500.00 together with P800.00 worth of
medicines. (TSN, March 17, 1993 p. 42).

After the money and medicines were handed to them, the three people demanded that they be driven
by Engr. Resus in his Volkswagen car to San Roque, Barobo, Surigao del Sur, but Engr. Resus declined
saying that he could not drive them at 12:00 midnight because he [did] not have enough gasoline and
that his service car [was] not in good condition to travel in the evening. (TSN, March 16, 1993, p. 8). But
one person, Mondaga, insisted that the next morning, a vehicle should be prepared for a trip to San
Roque, Barobo, Surigao del Sur. (TSN, March 17, 1993, p. 43)

At about 4:45 in the morning of August 20, 1992, Mondaga knocked at the door of the clinic. Engr. Resus
was just busy preparing the vehicle, securing gasoline. (ibid., p. 44.) Mondaga rode in the vehicle of Engr.
Resus and met his two companions at Andanan. (ibid..)

Instead of San Roque, the vehicle stopped at Alegria (TSN, March 16, 1993, p. 11). The three (Mondaga,
Maluenda and Alex) asked Engr. Resus to go with them. (ibid..) They went to the mountains and hiked
for almost two (2) hours between the boundary of Gordon and Alegria. (ibid..) When they reached the
area, Mondaga went back to Alegria, leaving behind the three who passed the night in the area. (ibid., p.
12)

Mondaga arrived at around 4:00 in the afternoon at the clinic of Dr. Resus. (TSN, March 17, 1993, p. 47)
Dr. Resus was out, but when Mondaga later came back at 7:00 in the evening and saw Dr. Resus (ibid., p.
48), he demanded the amount of P300,000.00. But since Dr. Resus had only P10,000.00, Mondaga told
her to reserve it and he [would] get it the next morning. (ibid.., pp. 48-49) After asking for the firearm of
Engr. Resus, (ibid., p. 51) Mondaga demanded to use the motorcycle of Engr. Resus. (ibid..) Dr. Resus
said that it was out of order. (ibid..) Mondaga ordered her to secure a motorcycle. (ibid.) Dr. Resus,
together with her maid, Maria Abne, went to the house of their driver, Rudy Legarto. (TSN, November
23, 1993, p. 22) Dr. Resus requested Rudy Legarto to drive for Maria Abne and Mondaga in his
motorcycle to Alegria and on his return, to drive for his Manong Mike. (ibid.) Legarto refused because of
his work. (ibid.) But when Dr. Resus insisted and when told that it was very important to conduct Maria
Abne and Mondaga, and because she was his boss, he agreed. (ibid..) He was asked to file a leave of
absence from his job. (ibid..) It is important to note that it was [Dr.] Resus who got Legarto involved in
this drama.

At around 5:00 in the morning of August 21, 1992, Legarto drove for Maria Abne and Mondaga to
Alegria at the behest of Dr. Resus. (ibid., p. 23) At Alegria, the three proceeded of [sic] Dr. Resus (ibid., p.
23) to a hilly side. (ibid..) Legarto and Maria Abne were left behind and Mondaga told them that he
[would] inform his commander to release Engr. Resus. (ibid..) They were also warned not to escape
because they were guarded. (ibid..)

At about 9:00 in the evening, Engr. Resus, together with Mondaga, arrived. Legarto was told by Engr.
Resus not to worry as he was treated well. (ibid..) Engr. Resus told Mondaga that Legarto was his driver
and Maria Abne was his helper. (ibid..) [O]n the way back, Legarto and Abne walked five (5) meters
ahead while Mondaga and Engr. Resus walked side by side. Legarto and Abne heard their conversations
(ibid., pp. 23-24) and Mondaga was demanding P300,000.00. Engr. Resus pleaded that he [did not] have
that amount. (ibid.) Mondaga them ordered Engr. Resus to make a note to his wife, Dr. Resus stating
that P300,000.00 be given. (ibid.) After the note was signed, Mondaga got the keys of the Volkswagen
car and the motorcycle while Legarto was brought along to Alegria. (ibid., p. 25) Engr. Resus and Maria
Abne were left behind. (ibid.) When they arrived at Alegria, Mondaga ordered him to drive the
Volkswagen in going back to Diatagon while Mondaga drove the motorcycle of Legarto. (ibid..)

However, at Diatagon, Mondaga stopped Legarto near the School of Fisheries. (ibid..) He was ordered to
fetch Dr. Resus and bring her to Mondaga for final negotiation. (ibid..) There was a threat not to
disseminate the information because if he [did], then Legartos family [would] be killed, including
himself. (ibid..)

He was able to find Dr. Resus at the house of a certain Nora Gubantes and told her he was ordered to
fetch her. Legarto asked Dr. Resus what [was] this incident about and Legarto was told immediately to
shut up. (ibid., p. 26) Legarto asked her of her decision but was told to shut up again. (ibid..)

Dr. Resus rode with him in the Volkswagen car towards the area near the Fisheries School at St.
Catherine, Lianga, Surigao del Sur. (ibid..) At some point Mondaga joined them in the car. Dr. Resus
allowed Mondaga to sit at the back while she sat in front seat beside Legarto. They talked about the
money, and Dr. Resus pleaded that she [could] only produce P100,000.00. (ibid., p. 27) Mondaga agreed,
provided the motorcycle of Legarto be included. (ibid..) Legarto, at this point, intervened and told Dr.
Resus not to include in the negotiation his motorcycle because the installment was not yet fully paid.
(ibid..) Dr. Resus then told him to just give his motorcycle. (ibid..) Then, Mondaga told Dr. Resus that
Legarto would be the one who [would] bring the money to Alegria. He agreed again because Dr. Resus
was his boss. (ibid..)

On August 22, 1992, at 4:00 in the afternoon, Eslao Gubantes and his son delivered P136,000.00 to
Legarto plus P200.00 for gasoline (ibid., p. 28). The P36,000.00 [was] to be paid as partial payment for
his motorcycle. (ibid.)
When he filed his leave of his [sic] absence, he talked to his Superintendent Virgilio Fernandez and
others who told him he should have filed his leave of absence ahead because nobody was detailed at
the depot, (ibid., p. 29) but he told them that, there was an emergency because Engr. Resus was held
hostage and he [would] deliver the money. (ibid..)

On his way to Alegria, he met Dr. Resus together with her nephew riding a police car (ibid.). He was
asked by Dra. Resus where the money [was] but he answered, he brought along with him P100,000.00.
(ibid..) Dr. Resus told him to bring also the P36,000.00 and another P14,000.00 which was about to be
given by Dr. Resus. (ibid..) However, he advised Dr. Resus that he would bring only P100,000.00 because
that was what they [had] agreed upon. (ibid.) If Mondaga objects [sic] he [would] just come back. (ibid..)
This was confirmed by Dr. Resus nephew (ibid..)

Legarto proceeded to Alegria and subsequently delivered the money to Mondaga, which resulted [in]
the release of Engr. Resus, together with Maria Abne. (ibid., p. 30) Engr. Resus and Maria Abne were
brought back to Lianga, where they met Dr. Resus. Mayor Layno of Lianga commented that if not for
your driver and Maria Abne, Engr. Resus [would] not be rescued. (ibid..) Engr. Resus and Dr. Resus
remained at Lianga, while he and Maria Abne proceeded to Diatagon. (ibid..)

On September 18, 1992, Legarto and Maria Abne were brought to the municipal building to act as
witnesses for Engr. and Dr. Resus. (ibid., p. 31) However, after executing his affidavit before the
Municipal Judge, he was arrested just when he went out from the office (ibid., p. 31). He was brought to
Patin-ay, Agusan del Sur, where he was detained. (ibid., p. 32) While there, he wrote a letter to Engr.
and Dr. Resus for help. (ibid..) The letter expressed his sentiment and dismay that in spite of his help, he
was included in the case. (ibid., p. 33) He denied having driven Mondaga alias Bobong Gonzaga at any
other time.

Similarly, Maluenda denies knowledge of Mondagas plan to commit the said crime. He accompanied the
latter to Mahilom only to mine for gold and not to plan, much less commit, any crime. He alleges that he
guarded the victim at the hut only because Mondaga threatened to kill him and his family. Through
counsel, Maluenda presents his own version of the facts, as follows:10

Daniel Maluenda testified that on August 20, 1992 at around 10:00 oclock in the evening, he was in his
house at Barobo when Raul Mondaga came over. Mondaga told him that he [had] a tunnel in Mahilom
and offered Maluenda a fifty-fifty proposition to gold mine the tunnel. Maluenda, who [was] a farmer
and at the same time a gold miner, agreed to the proposition.

On August 21, 1992 at around 7:00 oclock in the morning, Maluenda together with Mondaga proceeded
to Sitio Mahilom. Upon reaching Garden, Tambis, Surigao del Sur, Mondaga tried to give Maluenda a
pistol and grenade but Maluenda questioned Mondagas purpose for bringing the same since they were
just looking for gold inside the tunnel. Mondaga in turn told Maluenda to just follow what he [ordered]
so that nothing will happen to him, and that Mondaga [would] not hesitate to kill a person, so Maluenda
merely followed Mondaga as he was afraid.

Arriving at Mahilom, Mondaga and Maluenda proceeded to a hut where the latter saw Engr. Resus and
some other persons. Mondaga ordered Maluenda to stay in the hut and feed these persons. Maluenda
in turn retorted that their agreement was to mine for gold, but Mondaga told him to just follow my
order so that nothing will happen to you, or else I will blast your head and kill your family. Inside the hut,
Maluenda and Engr. Resus talked and planned to escape.

The next day at around 2:00 in the afternoon, Maluenda, together with Engr. Resus, left but when they
reached Alegria, they met Mondaga. Mondaga approached Engr. Resus, held his hand and said, do not
be afraid because you can go home. Mondaga also told Maluenda not to report the matter to the
authorities otherwise, they [would] all be killed.

Maluenda denied that he was at the clinic of Dra. Resus on August 19, 1992. Furthermore, he denied
having received any money from Mondaga. (TSN, November 24, 1993, pp. 50-59)

Ruling of the Trial Court

The trial court convicted Legarto, Maluenda and Mondaga, holding that they successfully perpetrated a
clear case of kidnapping. It gave complete credence to the testimony of the prosecution witnesses
whom it deemed unquestionably reliable, sincere and candid. The lower court held that Mondaga was
the mastermind of the kidnapping. While Appellant Legarto portrayed himself as a good Samaritan to
the Resus couple, the trial court stated that he was a wolf in sheeps clothing and described his
testimony as evasive, false and shallow.

The court a quo held: [A]s to how accused Raul Mondaga came to know that the Resus couple could pay
ransom, the finger of suspicion points to Legarto as source.11 Legarto failed to satisfactorily explain why
he did not testify against Mondaga in the criminal case for carnapping involving his motorcycle. His
actuations from the outset until the time he delivered the ransom money betrayed his active
participation as a co-principal by indispensable cooperation in the crime. Of the P136,000 handed to him
for delivery to the kidnappers, Legarto kept P36,000 for himself. Legarto confidently refused to
accept P14,000 more from Dr. Resus, saying that what he had was already sufficient. He further failed to
report the incident to the police when he had the opportunity to do so.

The trial court also noted the following pieces of evidence which proved Legartos participation in the
crime:

1. Witness Sanchez testified that she saw Mondaga frequenting Legartos house in Diatagon, and she
even saw him and Mondaga riding on his motorcycle.

2. On August 20, 1992, Engineer Resus saw him convey Maluenda and Alex to Andanan, where
Maluenda and Alex boarded Engineer Resuss car.

3. He drove the victims car back to Diatagon from Alegria.

4. He delivered Mondagas ransom notes to Dr. Resus.

5. He also delivered the ransom money to the kidnappers.

6. He used P36,000 of the ransom money to pay the balance of the purchase price of his motorcycle.
All these allegedly show Legartos participation as a co-principal by indispensable cooperation in the
crime.

Through the same witnesses for the prosecution, Maluenda, who introduced himself as Commander
Dongkoy, was positively identified as one of the men who went to Dr. Resus clinic on August 19, 1992.
The kidnap victim also identified him as the guard at the hideout in Alegria. Hence, the trial court
convicted him as a co-principal.

Assignment of Errors

Legarto assigns the following errors allegedly committed by the trial court:12

I- The lower court erred in finding that, as to how accused Raul Mondaga came to know
that the Resus couple could pay ransom, the finger of suspicion points to Legarto, as
source.
II- The lower court erred in giving credence to the testimony of Norma Sanchez.
III- The lower court erred in finding that, with respect to accused Rodrigo Legarto, there
were several instances noted by the court which lead [sic] it to conclude that this
particular accused was part of the criminal scheme to commits [sic] said kidnapping.
IV- The lower court erred in holding, that he has all the opportunity to report such criminal
scheme to the police or military authorities, if he wanted to and his failure to do so
plainly indicated his part in the criminal plan; and his actuations from the outset in a
criminal plan was put to an [sic] effect, up to his rule [sic] in hand carrying the
ransom money which he turned over to Mondaga at the mountain hideout which he
know [sic] inevitably, shows his active participation as a co-principal by
[indispensable] cooperation.
V- The lower court erred in not giving credence to the testimony of Rodrigo Legarto.
VI- The lower court erred in convicting the accused-appellant as co-principal of the crime
of kidnapping for ransom defined and penalized under the last par. of Art. 267 of the
Revised Penal Code as charged in the information and [in sentencing him] to suffer
the penalty of reclusion perpetua, with all the accessory penalties provided by law.
VII- The lower court erred in ordering the confiscation of appellants motorcycle.

In the Supplemental Brief, Legartos other counsel adds the following issues:13

I. The participation of Legarto was not proven beyond reasonable doubt.

II. Legarto was convicted on mere suspicion of one prosecution witness.
III. Legarto [had] no motive in kidnapping Engr. Resus.
IV. Lower court erred in holding that Legarto [was] a co-principal by indispensable
cooperation.
V. The lower court erred in ordering the confiscation of the motorcycle of Legarto.
For his part, Maluenda submits the following as his lone assignment of error:14

The trial court erred in finding the accused guilty of the crime charged despite the fact that his guilt was
not proven beyond reasonable doubt.

For clarity and order, the Court will separately discuss the participation of the appellants, and the
probative value of the evidence presented against each of them.

The Courts Ruling

The appeal is partially meritorious as regards Legarto who, in the light of the evidence presented, should
be held liable only as an accessory. In contrast, Maluendas conviction deserves affirmation, as his
culpability in the kidnapping was clearly proven.

Legartos Culpability

Sufficiency of Circumstantial Evidence

The solicitor general argues for the affirmation of Legartos conviction on the ground that the trial courts
assessment of the credibility of the prosecution witnesses is generally accorded great respect on appeal.
However, the Court believes that the resolution of this appeal transcends the issue of the credibility of
the witnesses. There is need to evaluate the sufficiency of the circumstantial evidence presented to
sustain Legartos conviction.

The trial court found Legarto guilty as a principal by indispensable cooperation on the basis of several
pieces of circumstantial evidence, which the solicitor general depicts as clearly demonstrating his
participation. On the other hand, Legarto asserts that the same set of evidence is frail and inconclusive.

Legartos contention merits consideration. A principal by indispensable cooperation is defined by Article

17 of the Revised Penal Code thus:

ART. 17. Principals. The following are considered principals:

xxx

3. Those who cooperate in the commission of the offense by another act without which it would not
have been accomplished.

Legarto cannot be convicted under this definition because the prosecution failed to allege, much less
prove, any overt act on his part showing direct participation in the kidnapping itself, his participation in
the incident being limited to acts committed after the abduction was already consummated. He was not
with the kidnappers (1) when they forcibly solicited money and medicine from the Resus couple, (2)
when they brought the kidnap victim to Alegria, and (3) when Mondaga demanded ransom for the
victims release. Together with the Resus housemaid, he accompanied Mondaga to the hideout in Alegria
only upon Dr. Resus request. In short, the prosecution failed to piece together a clear story as to how
Legarto figured in the kidnapping caper.
Admittedly, circumstantial evidence may be sufficient to convict an accused as a principal by
indispensable cooperation in accordance with Sec. 4, Rule 133 of the Rules of Court.15 It may also show
conspiracy. Thus, this Court meticulously examined the pleadings, the records and the assailed Decision,
in order to evaluate the sufficiency of Legartos conviction. The pieces of circumstantial evidence used by
the prosecution and accepted by the trial court are enumerated and evaluated seriatim.

Acquaintance Is Inconclusive Proof of Participation

That Mondaga frequented the house of Legarto in Diatagon proves that he knew the latter. Witness
Sanchez testified that she even saw them riding Legartos motorcycle during the town fiesta on June 24,
1992. However, this event occurred about two months before the kidnapping on August 19 to 22, 1992.
Considering that the prosecution did not present any evidence to show that the plan to kidnap Engineer
Resus was hatched as early as June 24, 1992, the fact that Legarto and Mondaga were together during
the town fiesta should not be considered as proof of Legartos direct participation in the crime. Likewise,
that Legarto was acquainted with Mondaga does not prove that the former had a hand in the
kidnapping.

Conveying Maluenda and Bueno Does Not Conclusively Prove Participation

The solicitor general harps on the fact that, on August 20, 1992, Legarto was seen transporting
Maluenda and Alex to Andanan on his motorcycle. He claims that this is strong proof of Legartos
complicity, as it shows that Legarto had knowledge of the plan to kidnap Engineer Resus. The trial court,
for its part, said that this fact points to the clear perception that xxx he was part of the dubious criminal
plan. The fact relied upon by the solicitor general and the trial court, however, is a mere speculation.
This is clear from Engineer Resus testimony, the pertinent portion of which is reproduced
below:16cräläwvirtualibräry

Q On the following day, August 20, 1992, where were you?

A I was at my residence, sir.

Q While you were in your residence, what transpired, if there was any?

A I got ready of [sic] my car, at the same time Raul Mondaga came in, sir.

Q What time did Raul Mondaga enter your residence?

A At about 5:00 oclock early in the morning, sir.

xxx

Q Where was the accused Maluenda at that time?

A At that time Maluenda was not around, sir.

Q Now, while you were preparing your car, what happened next?
A I parked my car infront [sic] of the clinic, sir.

Q Then what happened next after parking your car infront [sic] of your clinic?

A Raul Mondaga hurried me up to go with his companion who was ferried by Rudy Legarto, sir.

xxx

Q When you arrived at Andanan, what happened?

A As we passed along Andanan, I met Rudy Legarto on the way going back to Diatagon, with his two (2)
passengers already alighted from his motorcycle and waiting for us at Andanan and then took a ride
with us on our way to Barobo, sir. (Underscoring supplied.)

Engineer Resus merely said that he saw Legarto heading back to Diatagon. He did not witness Maluenda
and Alex on board Legartos motorcycle or alighting therefrom; he only saw the two at Andanan waiting
for Mondaga and him. In fact, Engineer Resus did not actually see Legarto transport Mondagas
companions. Hence, the statement that Legarto did so is a conclusion unsupported by Resus testimony,
a mere speculation of the event that might have preceded what Engineer Resus saw. Its true nature as a
conjecture is evident from the averment of the trial court that xxx they were conveyed there by Rodrigo
Legarto with the use of his motorcycle, as he was even encountered on the road on his return back to
Diatagon that morning by Engr. Resus.

From the foregoing, it is clear that Legartos alleged direct participation in the kidnapping is without
factual basis; it is nothing more than an inference drawn from a presumption. And because
circumstantial evidence not adequately established cannot become the basis of conviction, such
inference cannot be given evidentiary weight to support Legartos conviction as a principal by
indispensable cooperation.17

No Specific Demand for Legartos Motorcycle

The solicitor general avers that Mondagas instruction to Dr. Resus to requisition Legartos motorcycle
proves Legartos complicity in the felonious scheme. The averment is inaccurate because Mondaga, in
accordance with Dr. Resus testimony, had originally requisitioned the victims motorcycle, but the latter
told him that it was out of order.18 So, Mondaga asked for Legartos motorcycle instead.

That Mondaga chose Legartos motorcycle when he could have demanded any other two-wheel vehicle
can be explained by the fact that, several times prior to the kidnapping, he had taken a ride on the said
motorcycle. Note that Legarto used the motorcycle as a vehicle for hire in the area.

Delivering the Ransom Money and Keeping Part of It

Do Not Prove Conspiracy

The solicitor general avers that the complete trust of Mondaga in Legarto, whom the former designated
as collector of the ransom money, proves the latters participation. The trial court, on the same point,
said:19
xxx His subsequent direct involvement in the negotiations with Dra. Resus when he was made to drive
the Volkswagen car to Diatagon, contact Dra. Resus in the final negotiations, and delivery of the ransom
money agreed upon [sic] to Raul Mondaga, admitting having withheld at his house a part of the ransom
money amounting to P36,000.00(?) and paying off the balance of the motorcycle with it, as evidenced
by the receipt of payment, demonstrates very strongly and beyond doubt to [sic] his participation in that
criminal act, as now charged. xxxx.

These averments, however, are sufficiently rebutted by Legartos allegation that, out of loyalty to his
former boss, he participated in the release of the kidnap victim, not in his detention. The testimony of
Engineer Resus -- that Legarto was at Alegria in order to fetch the former -- is cited by the defense as
follows:20cräläwvirtualibräry

Q Do you confirm x x x the statements in these affidavits which you subscribed and sworn [sic] to before
Judge Ricardo L. Mosquerra III on September 18, 1992 and September 23, 1992?

A Yes, Sir.

Q In your affidavit on September 16, 1992 subscribed before Judge Mosquerra, you never mentioned
Rudy Legarto as one of the kidnappers, am I correct?

A Yes, Sir.

Q In fact, you will agree [with] me that the presence of Maria Abne and Rudy Legarto was for them to
fetch you. Am I correct?

A Yes, Sir.

xxx.

Regarding the P36,000 which he kept, Legarto alleges that this was payment for his motorcycle which
was taken by Mondaga. He claims that he had initially refused to give his motorcycle to Mondaga, but
was prevailed upon by Dr. Resus who told him that she would replace it.21 Confirming this, Dr. Resus
testified that she told Mrs. Gubantes that the money was payment for Legartos motorcycle,22 not his
share in the ransom. Thus, such payment could not rationally constitute evidence of direct participation
or of conspiracy in the kidnapping.

Non-appearance at the Hearings of the Carnapping Case

The solicitor general and the trial court posit that direct participation was established by the failure of
Legarto to testify against Mondaga in the criminal case for the carnapping of Legartos motorcycle. The
excuses of Legarto for his inability to attend the hearings -- that he did not have transportation and that
he had stomach ache -- were branded by the solicitor general as flimsy and incredible. After all, Legarto
was able to appear sans such problems when the trial court ordered the release of the motorcycle.

The contention is untenable. Legartos lack of interest in pursuing the criminal case against Mondaga
may be less than laudable, but it does not necessarily show direct participation in the kidnapping.
Dismissal of cases due to failure to prosecute is a common legal experience. Legartos excuses for failing
to prosecute may be dubious, but they cannot become the basis for his conviction as a principal by
indispensable cooperation in this case.

Finger of Accusation Was Baseless

In the assailed Decision, the trial court states, As to how accused Raul Mondaga came to know that the
Resus couple could pay [the] ransom, the finger of suspicion points to Legarto as [the]
source.23 However, an examination of the transcripts of stenographic notes reveals no testimony that
Legarto provided the kidnappers with information regarding the spouses finances. This was pure
speculation or suspicion nothing more, nothing less.

Elements Required to Convict By Circumstantial Evidence

A conviction based on circumstantial evidence requires the concurrence of the following elements: (a)
there is more than one circumstance; (b) the facts from which the inferences are derived are proven;
and (c) the combination of all the circumstances produces a conviction beyond reasonable doubt.24 For
such a conviction to withstand judicial scrutiny, the prosecution must further show that all the
circumstances are inconsistent with the hypothesis that the accused is innocent or with any other
rational hypothesis except that of his guilt.25cräläwvirtualibräry

In this case, the totality of the pieces of circumstantial evidence being imputed to Legarto does not
foreclose the possibility that he took no part in the criminal enterprise and does not, therefore,
overcome his constitutional right to be presumed innocent.26cräläwvirtualibräry

The presumption of innocence is founded upon substantive law and basic principles of justice. It serves
to balance the scales of justice in what would otherwise be an uneven contest between a single
individual accused of a crime and the prosecution which has all the resources of the government at its
command. Thus, this presumption cannot be overcome by mere suspicion or conjecture that the
defendant probably committed the crime or that he had the opportunity to do so. The prosecution is
required to prove the guilt of the accused beyond reasonable doubt. Otherwise, the accused must be
set free in accordance with the rule that conflicts in and insufficiency of evidence must be resolved in
favor of the theory of innocence rather than the theory of guilt.27

Same Circumstances Do Not Conclusively Show Conspiracy

Although the trial court did not pass upon conspiracy as a source of Legartos culpability, we deem it
proper to do so, since it was alleged in the Information. In theory, conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it.28 Once
established, the act of one becomes the act of all. Further, conspiracy must be shown to exist as clearly
as the commission of the offense itself, although direct proof is not essential.29 Prior agreement or
assent to the crime is usually inferred from the acts of the accused showing concerted action, common
design and objective, actual cooperation, concurrence of sentiments, or community of interest.30 In
most cases, like the one at bar, proof of conspiracy is frequently made by evidence of a chain of
circumstances only.31 But such proof must always be established by evidence that satisfies the
requirement of proof beyond reasonable doubt.32cräläwvirtualibräry
In Legartos case, conspiracy was not at all established by the prosecution. The familiarity between
Legarto and Mondaga is insufficient proof, as conspiracy transcends companionship.33 Moreover,
Mondagas act of meeting Legarto on the road to Andanan does not show conspiracy, because a merely
casual or unintended meeting, like passive presence, is not proof of conspiracy.34 Similarly insufficient as
circumstantial evidence to prove conspiracy were Mondagas demand for the use of Legartos
motorcycle, Legartos collecting the ransom money and delivering part of it, and Legartos failure to
testify against Mondaga due to either refusal or neglect. We stress that conspiracy must be founded on
facts, not on mere inferences and conjectures.35 Without an allegation of any overt act showing
community with the kidnappers, inferences do not adequately establish participation in a criminal
conspiracy.36

Legartos Criminal Liability

Despite its belief that Legarto was not a co-principal or a co-conspirator, this Court cannot completely
free him from criminal liability. Established by the prosecution are the following: (1) he reported the loss
of the motorcycle to the police authorities despite the fact that it had been given to Mondaga as part of
the ransom; (2) he had received P36,000 for it; (3) he paid the balance of the purchase price of the
motorcycle with the said money; and (4) he claimed, regained and retained its possession.

Legarto may not have had a direct hand in the kidnapping, but he received part of the ransom and used
it to pay off his arrears in his motorcycle loan. Thus, having knowledge of the kidnapping for ransom and
without having directly participated therein, he took part in the crime subsequent to its commission by
profiting from its effects.37 He may not be the devil with the face of an angel that the trial court
described, but he is definitely not a saint. He is criminally liable as an accessory to the crime of
kidnapping for ransom.

Under Article 19 of the Revised Penal Code, accessories are defined as those who (1) have knowledge of
the commission of the crime, (2) did not take part in its commission as principal or accomplice, but (3)
took part in it subsequent to its commission by any of the three modes enumerated in this article,38 one
of which is by profiting or by assisting the offender to profit from the effects of the crime.39 These
elements are all present and proven in Legartos case.

As an accessory to the consummated crime of kidnapping, the penalty imposable upon Legarto is two
degrees lower than that prescribed by law under Article 267 of the said Code.40 Since no modifying
circumstance is appreciated for or against him, the imposable penalty should be in the medium period
of the indeterminate sentence applicable under RA 4103, as amended.41

Affirmation of Maluendas Conviction

Acquittal is sought by Maluenda on the ground that only Mondaga executed the acts constituting
kidnapping with ransom; i.e., demanding and receiving money, medicine and ransom from the Resus
couple and detaining Engineer Resus. He avers that his presence at the hideout in Alegria was
involuntary because Mondaga had threatened his life and the lives of the members of his family.

Such contention is patently bereft of merit. Maluendas conviction deserves affirmation based on the
precept that actions speak louder than words. Established by the prosecution beyond cavil was his direct
participation in the criminal conspiracy to kidnap Engineer Resus, who testified that Maluenda was one
of the men who had, on the night of August 19, 1992, extorted money and medicine from him and his
wife, who corroborated this story.42 Engineer Resus testified:43cräläwvirtualibräry

Q: So what time did you arrive at your residence?

A: About 9:45 in the evening, more or less, sir.

xxx

ATTY ALVIZO:

Q: When you arrived [at] your residence, what happened, if any?

WITNESS:

A: When I arrived at our house, the midwife on duty told us that we [had] visitors, sir.

xxx

Q: Who were your visitors?

A: Alias Bobong Gonzaga but his true name, after interrogation by the police which I happened to know
later, is Raul Mondaga, sir. And the other one is Dongkoy but after interrogation by the police, they told
me that the true name is Daniel Maluenda; then alias Alex whose identity is still unknown because he is
not yet arrested. These were the three (3) people in my residence at that time, sir.

xxx

Q: What happened, after introducing themselves to you?

xxx

A: This Raul Mondaga drew his revolver and also his grenade ready to be blown-up and intoduced
himself to us that NPA Commander Father Simon [had] instructed them to solicit funds for the victims in
the recent Melali, Agusan del Sur, military-NPA encounter, sir.

The kidnap victim also testified that he conducted Maluenda and his companions to Alegria in his car the
following day:44cräläwvirtualibräry

Q: When you arrived [at] Andanan, what happened?

WITNESS:

A: As we passed along Andana, I met Rudy Legarto on the way going back toDiatagon [sic], with his two
(2) passengers already alighted from his motorcycle and waiting for us at Andanan and then took a ride
with us on our way to Barobo, sir.
Q: Who were your passengers then when you reached Barobo?

A: Raul Mondaga, Maluenda and alias Alex, sir.

Maluenda also guarded the victim at the farm hut in Alegria.45cräläwvirtualibräry

Q: (PROS. CALVIZO)

Where did you go?

A: (ENGR. RESUS)

We went to the mountain and hiked for almost two (2) hours between the boundary of Garden and
Alegria, sir.

xxx

Q: While you were there, what happened next, if any?

A: Raul Mondaga told me that he [had] forgotten something, he [had] to go back and I [had] to stay
there because the camp of the NPA still further away and that we [had] to pass the night in that NPA
hut, sir.

Q: Who were your companions in that place?

A: Daniel Maluenda and Alex plus another reinforcement, Gil Bueno, sir.

xxx

Q: In the following morning, August 21, 1992, what happened next?

xxx

A: When Raul Mondaga arrived with a note from my wife and that was the time when they started to
grind me, sir.

xxx

ATTY. ALVIZO:

Q: After the accused Raul Mondaga took the note from you, what happened next?

xxx

WITNESS:

A: I waited at the farmhut where I was guarded by the three (3) persons, sir.
Q: Who were guarding you at that time?

A: Daniel Maluenda, Alex and Gil Bueno were guarding me at that time, sir.

Engineer Resus testimony that Maluenda guarded the kidnappers hideout was corroborated by Abne,
the housemaid, as follows:46cräläwvirtualibräry

Q: Where were you bound for with your companions, Rudy Legarto and Bobong Gonzaga?

A: To the forest where Engr. Resus was kept or held, sir.

xxx

Q: Did you see Engr. Resus?

A: Yes, sir.

xxx

Q: And what happened, after that?

A: Bobong Gonzaga and Rudy Legarto went back to Alegria, sir.

xxx

Q: What about you, where were you?

A: I and Engr. Resus were left in theforest [sic] with the guards, Alias Dongkoy and Alex, sir.

Q: And where did you spend your night on August 21, 1992?

A: In the forest, sir.

xxx

Q: And who was one of the guards?

A: Alias Dongkoy, Alias Alex and Alias Gil, sir.

Although only Mondaga verbally extorted money and demanded ransom from the Resus couple, it is
evident that the kidnapping was committed with Maluendas participation. Beyond reasonable doubt,
Maluendas actions exhibited a community of interest and a concurrence of sentiment with Mondaga.
Consequently inevitable as they relate to Maluenda are the following holdings of the trial court:47

xxx Simply stated, the witnesses for the prosecution, in contrast to that [of] the defense, are, in
the Courts assessment, unquestionably reliable, sincere and candor [sic] in their testimonies
which [were] very logical and credible.
xxx

and, as between the affirmative testimony of the prosecution witnesses and that of the
negative versions of the defense, the former [was] more stronger [sic]. The accuseds [sic]
resorted to unfounded denials.

xxx

To summarize, the Court finds that a clear case of kidnapping for ransom [had] been
successfully committed by all the accuseds [sic] charged in the information, who are all private
individuals; that the victim of that heinous crime [was] Engr. Miguel E. Resus; that ransom
money was actually paid in consideration of his release on the third day that he was forcibly
deprived of his liberty; xxx.
Accused Raul Mondaga, alias Bobong Gonzaga, and Accused Daniel Maluenda, alias
Commander Dongkoy have both been positively identified as among the active perpetrators. x
x x x.

Insofar as Maluenda is concerned, we find applicable the well-entrenched rule that the factual findings
of the trial court are binding on the appellate court.48 In this light, our earlier holding negating the trial
courts assessment of the circumstantial evidence pertains only to Appellant Legarto, not to Appellant
Maluenda.

WHEREFORE, the appeal is partially granted. The assailed Decision is hereby AFFIRMED as regards
Maluenda, but MODIFIED as regards Legarto. Legarto is hereby found GUILTY as an ACCESSORY only and
is ORDERED to serve the indeterminate sentence of two (2) years, four (4) months and one day of prisin
correccional, as minimum, to eight (8) years and one day of prisin mayor, as maximum. He is further
ordered to RETURN to Engineer and Dr. Miguel E. Resus the amount of thirty-six thousand pesos
(P36,000) corresponding to the amount he used to pay his loan arrears. The amount which the trial
court ordered to be restituted by Mondaga and Maluenda is accordingly reduced by said amount.

SO ORDERED.

6. People v. Montealegre, G.R. No. L-67948, 31 May 1988

G.R. No. L-67948 May 31, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NAPOLEON MONTEALEGRE, defendant-appellant.
The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for defendant-appellant.

CRUZ, J.:

It is a settled rule in this jurisdiction that the conviction of the accused, who is constitutionally presumed
innocent, depends upon the strength of the prosecution and not the weakness of the defense.
Unfortunately for the accused in this case, his prosecution for murder with assault upon a person in
authority, undoubtedly already strong, was made even stronger by the defense itself.

As the trial court * which convicted him saw it, the crime imputed to Napoleon Montealegre was
committed as follows:

At about 11:30 in the evening of March 11, 1983, while Edmundo Abadilia was eating at the Meding's
Restaurant in Cavite City, he detected the smell of marijuana smoke coming from a nearby table.
Intending to call a policeman, he quietly went outside and saw Pfc. Renato Camantigue in his car whom
he hailed to report the matter. After parking his vehicle, Camantigue joined Abadilla in the restaurant
and soon thereafter the two smelled marijuana smoke from the table occupied by Vicente Capalad and
the accused-appellant. Camantigue then approached the two and collared both of them, saying
"Nagmamarijuana kayo, ano?' Forcing them up, he asked the waitress ff she knew them but the waitress
said she did not. 1 Then the mayhem began.

While Camantigue was holding the two, Montealegre with this right hand and Capalad with his left
hand, Capalad suddenly and surreptitiously pulled out a knife from a scabbard tucked in the right side of
his waist and started stabbed Camantigue in the back. 2 Camantigue let loose Montealegre to draw the
gun from his holster but Montealegre, thus released, restrained Camantigue's hand to prevent the latter
from defending himself Montealegre used both his hands for his purpose 3 as Capalad continued
stabbing the Victim. 4 While they were thus grappling, the three fen to the floor and Capalad, freed from
Camantigue's grip, rose and scampered toward the door. Camantigue fired and, continuing the pursuit
outside, fired again. 5 Capalad fled into a dark alley. Camantigue abandoned the chase and asked to be
brought to a hospital. Capalad was later found slumped in the alley with a bullet wound in Ms chest.
Neither Camantigue nor Capalad survived, both expiring the following day. 6

The accused-appellant, for his part, escaped during the confusion. 7 Having been informed of the
incident, Capt. Cipriano Gilera of the Cavite police immediately organized a team that went to look for
him that very night. 8 They did not find him in his house then but he was apprehended in the morning of
March 12,1983, on board a vehicle bound for Baclaran. He gave his name as Alegre but later admitted
he was the fugitive being sought. 9

Dr. Regalado Sosa, reporting on the autopsy of the Camantigue's body, testified that death was caused
by shock due to massive internal hemorrhage caused by seven stab wounds affecting the heart, lungs,
liver, stomach, pancreas, and diaphragm.10 The weapon used was 6" in length and about 2 to 2.5 cm. in
width and the blood found on it was analyzed as human.11 The stabbing incident was narrated in detail
at the trial by Abadilla, 12 who was corroborated by Generoso San Juan. 13
On direct examination, Abadilla testified that Montealegre prevented Camantigue from drawing his
pistol while he was being stabbed by Capalad, demonstrating with the aid of court personnel the relative
positions of the three during the incident. 14

On cross-examination, he reiterated his previous declaration even more emphatically, thus:

Q. When accused Montealegre held the hand of Pfc. Camantigue upon

drawing his gun, what happened to Camantigue?

A. He could not move, sir. He could not make any defense because he
was being held by Montealegre and he was being stabbed at the back. 15

He replied as follows to questions on re-direct to stress the participation of the accused-appellant —

Q. When accused Capalad started stabbing Pfc. Camantigue at the back,

accused Montealegre was being held by Pfc. Camantigue at that time?

A. Yes, sir.

Q And in fact Montealegre was very close to the right of Camantigue at

that time?

A. Yes sir.

Q And Montealegre was aware that Capalad was stabbing Pfc.

Camantigue?

A. Yes, sir, he knew. 16

In answer to clarificatory questions from the court, he declared:

Q. And when Montealegre saw that Camantigue was about to draw gun,
Montealegre grabbed the hand of Camantigue?

A. Yes, sir.

Q. With what hand?

A. Both hands, sir.

Q. And was Camantigue able to pull out from his waist the gun?

A. No. sir.

Q. Why?

A. Because Montealegre was holding his hand, Your Honor.

 Q. With both hands?

A. Yes, sir.

Q. Montealegre was holding with both hands rights hand of

Camantigue?

A. Yes, sir.

Q. And at this moment when Montealegre was holding with both hands
the hand of Camantigue, what was Capalad doing?

A. Capalad was still stabbing Camantigue, Your Honor. 17

San Juan was equally categorical in his testimony, saying on direct examination.

Q. When Camantigue was being stabbed, where was Montealegre?

A. He was on the right side.

Q. What was he doing at that time?

A. When Camantigue was being stabbed, he tried to pull his gun but
Montealegre held his hand.

Q. Was Camantigue able to draw his gun?

A. No. sir.

Q. What happened when Camantigue failed to draw his gun? They

slammed down on the floor and when they were already on the floor, I
ran away because I was already figures lightened. 18

The cause of the defense did not improve when on cross-examination, he insisted:

A. When Camantigue was about to draw his gun, Montealegre suddenly

held the hand of Camantigue.

Q. And when Montealegre suddenly held the hand of Camantigue, what

happened to Camantigue?

A. He could not draw his gun because while Montealegre was holding
his hand, Capalad was stabbing him at the back. 19

And to the court, the witness maintained his testimony as follows:

 Q. So Camantigue was hit many times by Capalad while Montealegre
was holding the right hand of the policeman to prevent him from
drawing his gun?

A. Yes, sir. 20

The accused-appellant, testifying on his behalf, only succeeded in confinning his own guilt. He claimed
he ran away before the stabbing but his testimony, consisting of denials, evasions, contradictions, claims
of ignorance and forgetfulness and protestations of innocence, does not have the ring of truth. The
following excerpts are reflective of the kind of defense he offered to exculpate himself from the charge
established against him by the prosecution.

Q. Now, while Pfc. Camantigue was arresting Vicente Capalad, what

happened if any?

A. Camantigue pulled his gun.

Q. What happened after that?

A. Nothing, I did not see anymore what happened. 21

xxx xxx xxx

A. I cannot say anything about that. I did not see what really happened.

Q. Did you see Capalad stabbing Pfc. Camantigue?

A. I did not see. 22

xxx xxx xxx

Q. From whom did you come to know that Pfb. Camantigue shot and
killed Vicente Capalad?

A. From the witness Abadilla. I have heard from him that Camantigue
killed Capalad. 23

xxx xxx xxx

Q. Mr. Montealegre, did you notice while Pfc.Camantigue was holding

both of you, did you notice that Vicente Capalad stabbed Pfc.
Camantigue?

A. I did not see anything. 24

xxx xxx xxx

 Q. And you were standing on the right side of Pfc. Camantigue while
Capalad was on the left side?

A. I am not sure whether I was standing at the right or at the left.

Q. But the fact is that you were standing on the right side of
Camantigue?

A. I am not sure if that is the right side.

Q. But you were standing on the side where his gun and holster were
placed?

A. I cannot remember. 25

It is simply unbelievable that the accused-appellant did not know what was happening on that evening
of March 11, 1983. As one of the principal figures of the stabbing incident, he could not have not known,
nor could he later not remember, that startling event that even more onlookers could not forget. The
evidence has established that the accused-appellant was directly and personally involved and was in fact
one of the two persons held by the victim when he was stabbed. Yet Montealegre would now insist,
quite incredibly, that he was unaware of what had transpired that night.

If it is true, as he says, that he ran away before the stabbing, there would have been less likelihood of
Capalad's attack as Camantigue's attention would have been fully concentrated on his lone captive.
Moreover, there would have been nothing to restrain the policeman from drawing his pistol and
defending himself against Capalad if the accused-appellant had, by his own account, already escaped
before the stabbing.

It is also worth noting that, instead of reporting to the authorities, what the accused-appellant did was
attempt to hide, only to be found the following morning on board a bus bound for outside Cavite City.
When apprehended, he first gave a false name before he finally admitted his Identity, thus beginning
the mesh of contradictions, admissions and denials, in which he would enshare himself.

The Court accepts the evidence established by the prosecution that at the time of the stabbing, the
victim was in uniform and, therefore, could easily be recognized as a person in authority. Several
witnesses testified as to his attire when he was killed. 26 And even assuming that the victim was in
civilian clothes on that tragic night, the record shows that no less than the accused-appellant himself,
replying to questions put to him by the prosecution, declared twice that he knew the victim to be a
policeman. 27

The accused-appellant was correctly considered a co-principal for having collaborated with Capalad in
the killing of the police officer. The two acted in concert, with Capalad actually stabbing Camantigue
seven times and the accused-appellant holding on to the victim's hands to prevent him from drawing his
pistol and defending himself. While it is true that the accused- appellant did not himself commit the act
of stabbing, he was nonetheless equally guilty thereof for having prevented Camantigue from resisting
the attack against him. The accused-appellant was a principal by indispensable cooperation under
Article 17, par. 3, of the Revised Penal Code.
As correctly interpreted, the requisites of this provision are: "(1) participating in the criminal resolution,
that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before
the commission of the crime charged; and (2) cooperation in the commission of the offense by
performing another act without which it would not have been accomplished.

The prosecution contends that although there was no evidence correspondence of a prior agreement
between Capalad and Montealegre, their subsequent acts should prove the presence of such conspiracy.
The Court sustains this view, which conforms to our consistent holding on this matter:

Conspiracy need not be established by direct proof as it can be inferred from the acts of
the appellants. It is enough that, at the time the offense was committed, participants
had the same purpose and were united in its execution; as may be inferred from the
attendant circiumstances. 29

xxx xxx xxx

We agree that there is no evidence to show a previous plan to kill Regino Bautista. The
whole incident happened because the accused came upon Bautista and Mallabo fishing
within or near the fishpond enclosure of Carlo Aquino which was under the care of
Vicente Cercano.

But for a collective responsibility among the herein accused to be established, it is not
necessary or essential that there be a previous plan or agreement to commit the
assault; it is sufficient that at the time of the aggression all the accused by their acts
manifested a common intent or desire to attack Bautista and Mallabo, so that the act of
one accused became the act of all. 30

xxx xxx xxx

If it be proved that two or more persons aimed by their acts towards accomplishment of
the same unlawful object, each doing a part so that their acts, though apparently
independent, were in fact connected and cooperative, indicating a closeness of personal
association and concurrence of sentiment, a conspiracy may be inferred though no
actual meeting among them to concert is proven. A conspiracy only be entered into
after the commencement of overt acts leading to the consummation of the crime. 31

As for the second requirement, the Court has held that:

There can be no question that appellant's act in holding the victim from behind when
the latter was stabbed by his collaborated Victor Buduan, was a positive act towards the
realization of a common criminal intent, although the intent can be classified as
instantaneous. It can be safely assumed that had not appellant held both arms of the
victim from behind, the latter could have partied the thrust or even run away from his
assailant. By immobilizing the two hands of the victim from behind, and although there
was no anterior conspiracy , the two cousins showed unity of criminal purpose and
intent immediateIy before the actual stabbing. 32
 xxx xxx xxx

It has been sufficiently established that appellant Cabiles seized the running decedent in
such a manner that the latter could not even move or tum around. This enabled the
pursuing Labis, who was armed with a drawn bolo and was barely five meters away
from the decedent, to finally overtake him and stab him at the back with hardly any risk
at all. Cabiles therefore performed another act-holding the decedent—without which
the crime would not have been accomplished. This makes him a principal by
indispensable cooperation. 33

The above requisites having been established, the accused-appellant was correctly convicted of the
complex crime of murder, as qualified by treachery, with assault upon a person in authority.
Accordingly, he must suffer the penalty imposed upon him, to wit, reclusion perpetua, there being no
aggravating and mitigating circumstances, plus the civil indemnity, which is hereby increased to
P30,000.00, and the actual, mectical and fimeral expenses in the sum of P37,380.00 as proved at the
trial.

Pfc. Renato Camantigue was only 34 years old when he died in line of duty while enforcing the law
against the abuse of dangerous drugs. He was struck down with no less than seven vicious stabs by a
man who, by his own admission, was at the time of the incident "burned" on marijuana. The kiner also
eventually succumbed, and that made the second life needlessly lost to the wickedness of drug
addiction. There was another Iife also ruined, this time of the 28 year-old accused-appellant himself,
although, fortunately for him, his loss is not irretrievable nor is his future forever foreclosed. In the
somber shadows of the prison bars, as he ponders the wrong he has done, he may yet find his ultimate
redemption in rehabilitation and remorse.

WHEREFORE, the appealed judgment is AFFIRMED as above modified, without any pronouncement as to
costs. It is so ordered.

7. People v. Madali, G.R. No. L-67803, 30 July 1990

G.R. Nos. L-67803-04 July 30, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
Pat. RICARTE MADALI and ANNIE MORTEL MADALI, defendants-appellants.
The Solicitor General for plaintiff-appellee.

Juan B. Soliven for defendants-appellants.

FERNAN, C.J.:

Husband and wife Patrolman Ricarte Madali and Annie Mortel Madali appeal from a decision of the
Regional Trial Court of Romblon, Branch LXXXI 1 finding them guilty beyond reasonable doubt of killing
father and son Cipriano and Felix Gasang, and seriously wounding Agustin Reloj and Cipriano's daughter,
Merlinda. The dispositive portion of the decision states:

WHEREFORE, the Court hereby finds the guilt of accused Ricarte Madali and Annie
Mortel Madali beyond reasonable doubt of the following offenses and sentences each
of them as follows:

(1) For the frustrated murder of Agustin Reloj, each accused is meted an indeterminate
penalty of SIX (6) YEARS of prision correccional, as minimum to TWELVE (12) YEARS and
ONE (1) DAY of reclusion temporal, as maximum. (E)ach of them is also sentenced to
suffer all the accessory penalties provided for by law, and each is ordered to pay in
solidum the offended party, Agustin Reloj, the sum of P200.00 as reimbursement of
medical and hospitalization expenses.

(2) For the murder of Felix Gasang, each accused is sentenced the penalty of reclusion
perpetua and each of them is likewise sentenced to suffer the accessory penalties
provided for by law, and each is also ordered to pay in solidum to the heirs of Felix
Gasang, the sum of P12,000, as death indemnity.

(3) For the murder of Cipriano Gasang and the mortal (sic) wounding of Merlinda
Gasang (which has been converted into a complex crime of murder with frustrated
murder) each accused is sentenced to the penalty of reclusion perpetua together with
the accessory penalties provided for by law and to indemnify in solidum the heirs of
Cipriano Gasang the sum of P12,000.00 and each is also ordered to pay in solidum,
Merlinda Gasang the sum of P6,000 for reimbursement of medical and hospitalization
expenses.

Each of the accused is likewise ordered to pay in solidum the heirs of deceased, Cipriano
Gasang and Felix Gasang, the sum of P50,000.00, which amount represents the value of
the loss (sic) earning capacity of deceased Cipriano and Felix, both surnamed Gasang,
and the sum of P30,000.00 as moral damages, and the sum of P10,000.00 as exemplary
damages.

The sentences of reclusion perpetua and the indeterminate penalty imposed upon each
accused should be served successively, with proportionate costs.

IT IS SO ORDERED.2
According to the prosecution, said crimes stemmed from an altercation between the son of the Madali
spouses, Ramon, and the group of Felix Gasang, who was twenty years old when he was killed. 3 It
appears that on October 26, 1979, Felix figured in a fist-fight with someone who was a friend of Ramon.
The latter interceded and mauled Felix with a "chako" 4 One of Felix's companions then was Agustin
Reloj. 5

The following day, the police summoned Felix to the municipal building. Felix's mother, Desamparada
Gasang, went with him. 6 At the police station, Ricarte Madali, a police officer, angrily scolded Felix and
his cousin, Arnaldo Fadriquilan, and told them that because they were "very brave", he would put them
in jail for twelve hours. Madali added after asking about Felix's age that he would "sow bullets" in the
body of Felix. 7 According to witness policeman Aristeo Fetalino, Madali also uttered, "Kailangan sa imo
lubongan bala" which means, what you need is a bullet embedded in you. 8 Madali's father-in-law,
Agustin Mortel, who arrived at the police station, agreed with Madali that Felix and his group must be
"sown with bullets" to eradicate them. 9 Another group mate of Felix was detained at the municipal jail
but Felix was sent home with his mother. 10

At around 9:00 o'clock in the evening of October 31, 1979, Felix and his cousin, Agustin Reloj, went
home together from the town plaza. Their houses were located near each other in sitio Marawi,
barangay Cagbo-aya, San Agustin, Romblon.

Felix and Agustin parted ways at the Marawi bridge. Felix dropped by the store of Coroy Mangao to buy
cigarettes while Agustin proceeded home. Around fifteen meters from the house of Ricarte Madali, the
latter accosted, him, held him by his arm and said, "So you are here, you devil, now you are finished. I
have been waiting for you. I have been watching for you for three nights already. 11 Then Madali
dragged Agustin towards the gate of his (Madali's) house. When Agustin asked Madali why he was
dragging him, Madali said that the reason was because Agustin helped in fighting his son.

As one of Agustin's feet stepped over the knee-high fence at the gate of the Madali residence, he was
clubbed by Annie Madali with a piece of wood. Annie struck him first on the left shoulder and would
have given him another blow had not Agustin freed himself from Madali's hold. Annie landed that blow
on Madali instead. 12

Agustin was looking back as he ran away when Madali shot him. He was hit below his right hip. He fell to
the ground and did not get up fearing that Madali might shoot him again. Agustin was still lying down on
the ground with his eyes focused on Madali when Felix Gasang arrived. He saw Annie beamed her
flashlight at Felix and she said, "Here comes another." 13

Agustin saw Felix raising his hands as Annie focused her flashlight on Felix. Felix told Madali that he
would not fight with him but then Madali shot Felix twice. Felix fell to the ground. Madali was still near
the gate of his house when Cipriano Gasang arrived. Annie beamed her flashlight at Cipriano and she
said, "Here comes, here comes another, fire upon him. 14 Madali shot Cipriano who fell to the ground.
Merlinda Gasang, who was with her father Cipriano, clung to the fence nearby and shouted that she was
also hit. Then Desamparada Gasang arrived and shouted for help. One Romeo Manes came and carried
away Merlinda. Agustin slowly stood up and as he walked towards his house, he saw Roman Galicia
(Galicha) and the Madali spouses who were then entering their gate. 15
Merlinda Gasang * was at home when she heard an explosion. Her father, Cipriano, was also at home
then but after the second shot, he went out of the house towards the direction of the source of the
gunfire. There was a minute interval between the first and the second shots but only a second elapsed
between the second and the third shots. The fourth shot came about two minutes later. 16

Cipriano was "beyond the gate" of the Madali residence when he was shot by Madali. Merlinda was
around three meters from her father.17 She saw Annie focused her flashlight at Cipriano and she heard
Annie say, "Yara pa, yara, pa, barila" meaning "Here comes another one, here comes another one,
shoot." 18 That was when the fourth explosion occurred and Merlinda heard her father exclaim that he
was hit. Merlinda felt that she was also hit. 19 She did not fall to the ground because she was able to take
hold of the wooden fence. 20 She saw both her brother Felix and Agustin lying flat on the ground with
the latter's head turned to one side. 21

Merlinda shouted for help. Romeo Manes came and brought her to the Tablas Island Emergency
Hospital. 22 She did not notice anymore where Ricarte Madali was at that time because she was looking
towards the direction of their house. She saw her mother running to her. 23

Desamparada Gasang was washing the dishes after supper when she heard the first shot. After the
fourth shot, she became apprehensive because a policeman was mad at her family. 24 She proceeded to
where she heard the gunbursts and she met her daughter Merlinda who informed her that she was shot
by Madali and that she saw Annie focused a flashlight on her. Then Desamparada saw her husband
crawling on the ground. She asked him to stand up but he could not do so. Cipriano told her, "Ging
iwagan ako ni Annie Madali cag ging baril ako ni Ricarte Madali" (Annie focused a light on me and
Ricarte Madali shot me.) She then went back to her daughter and shouted for help.

The bodies of Cipriano and Felix Gasang were not removed from the road until around midnight. They
were brought to the Gasang residence for autopsy. 25 The rural health physician who conducted the
postmortem examinations on both Cipriano and Felix found that Cipriano sustained a gunshot wound at
the right lower quadrant of the abdomen along the mammary line. From that point of entry, the bullet
followed an obliquely downward course penetrating the small and large intestines and the urinary
bladder, and exited at the middle of the left buttock. Cipriano's death was caused by hemorrhage due to
the gunshot wound.26

Felix also died of hemorrhage resulting from the gunshot wound at the right second intercostal space
within the mid-clavicular line of the chest. The bullet veered backwards towards the left hitting the right
lung, its blood vessels and the fourth cervical vertebra. The second gunshot wound was at the right side
of the abdomen at about the level of the navel and within the right anterior axillary line. The bullet hit
the subcutaneous tissues and exited at the posterior axillary line. 27

Merlyn (Merlinda) Gasang sustained a gunshot wound at the anterior upper third portion of her right leg
with no exit wound and which would incapacitate her for ten to fifteen days 28 However, she stayed for
treatment at the emergency hospital in San Agustin for 39 days. Later, she was brought to the hospital in
Romblon for extraction of the slug lodged in her leg. For the treatment of her wound, Merlinda spent
P6,200.00. She could not go to school for three months. 29

Agustin Reloj suffered a gunshot wound at the glutael region of the right thigh. The bullet entered the
lateral aspect of the upper third of the right thigh and exited at the posterior aspect of the gluteus
maximus muscle. The attending physician certified that Agustin's injury would incapacitate him for
seven to nine days, 30 Agustin, who was then a laborer, stayed one week at the hospital and spent P200
for the treatment of his wound. For his pain and anxiety he stated, that he should be compensated in
the amount of P500.00. 31

Madali voluntarily surrendered to the San Agustin police. 32 He handed his .38 caliber service revolver to
the policemen who arrived at the scene of the crime and they noted that there were only two remaining
bullets in the revolver. 33 He was placed under technical arrest by the provincial commander of the
Philippine Constabulary. 34

After the investigation, on February 1, 1980, two informations were filed against Patrolman Madali and
his wife, Annie Mortel Madali. In Criminal Case No. 981, said spouses were charged with multiple
murder for the killing of Felix and Cipriano Gasang. The information alleged that they conspired,
confederated and mutually helped each other in killing Felix and Cipriano treacherously, with evident
premeditation and with the use of a .38 caliber revolver. 35

In the separate information for multiple frustrated murder in Criminal Case No. 982, conspiracy,
treachery and evident premeditation were also alleged as having attended the felonious assault with the
use of a .38 caliber revolver on Merlinda Gasang and Agustin Reloj which could have resulted in the
crime of murder had not timely and able medical assistance intervened. 36

At the trial, both Madali and his wife, who had pleaded not guilty to the crimes charged, testified in their
own defense. According to Madali, at around 9:00 o'clock in the evening of October 31, 1979, he and his
family were about to sleep when a stone was hurled at their house. His wife said that it could have been
a stray stone. But then, three other stones landed on the GI sidings, and the lawanit and bamboo walls
of their house. Madali went to their porch where he noticed a person crouching near their gabi plants.
He could not identify the person because of the fog so he went inside their room and dressed up in his
fatigue trousers and jacket. He went down the house and noticed that there was no one in the gabi
plants anymore.

Madali was behind their kitchen and about to go back to his house when someone hit his left shoulder.
The person struck him again but he was able to catch the club aimed at him and strike the person with
his nightstick. Madali was about to give him another blow with his nightstick but the person caught it.
They tried to get each other's club.

They were in that position when Madali's foot stepped into a low canal, causing him to fall down flat on
his back. The intruder fell with him and landed on Madali's stomach. The person shouted at someone in
the vicinity what the latter was tarrying about. As Madali tried to get up, he heard his wife call, "Carte,
Carte." Just then he kicked the intruder on the stomach and the latter fell to the ground.

Madali hurriedly stood up, pulled his gun and fired at the intruder. He noticed two other persons
approaching him. One person had a club and the other had what looked like a knife. He warned them,
"This is a policeman. Do not come near." One of the persons proceeded to strike him and Madali was hit
on his forehead by the man with the club. Madali in turn dealt him with a blow by swinging back his left
forearm. The man with a club fell down.
When the man with the knife was about to stab him, Madali fired his gun at him. As that man was still
closing in on him, Madali shot him again. The man with the knife retreated to the gate and fell just
outside of it.

After firing two shots, Madali turned sideward and saw the man with the club about to strike him. So,
Madali shot him. The man walked away. Madali later identified the man crouching amidst their gabi
plants as Agustin Reloj. 37

Annie Mortel Madali corroborated her husband's testimony from the stoning of their house until he
dressed up, got his gun and nightstick, and went out of the house. When she heard Madali opening the
door to the stairs, Annie got up and went to their balcony to peep. She saw her husband going around
their house in a clockwise direction. When he was near their kitchen, Annie saw him grappling with
someone over the possession of a club. Her husband and his protagonist fell into a canal, trampling the
gabi plants. She heard the man say, "Hay, naga tanga pa kamo dira!" meaning "What are you still
waiting for!"

Annie then saw two persons rushing inside their premises. One person was holding a club while the
other one had something which he appeared to thrust forward. Losing her composure, Annie warned
her husband by calling out his name, "Carte, Carte!" Then she heard a gunshot and the person holding a
club who grappled with her husband ran out of the premises.

Annie heard her husband say, "Pulis ini, ayaw maglapit" meaning "This is a policeman do not come
near." After that, she heard three more gunshots. The two who came rushing inside their premises
scampered away and out of their fence. She could not recognize the three intruders. Madali then
walked towards her and asked her to call the police. Annie went inside their sala and told her daughter
Agnes to summon the police. 38

Policeman Numeriano Galang who heard the gun reports, met Agnes on his way to sitio Marawi. When
he arrived at the Madali residence, he found Madali with his face and jacket smeared with mud and with
a swollen forehead. 39 Galang asked Madali what happened but he did not put his investigation in
writing. 40 At the yard, he found stones, two slippers and a nightstick. 41 He did not find bloodstains in
the yard because it was drizzling. 42 Neither did he find bloodstains outside the yard because he
inspected only the areas surrounding the Madali house. 43

Policeman Antonio Morales arrived at the scene of the crime with two other policemen. He found Felix
Gasang lying flat on his belly about one foot from the gate. 44 To identify him, they turned Felix's body
face up and found that his right hand was holding a knife. 45 Later, that knife was turned over to police
investigator Pfc. Ernesto Solano. 46 The other victim (Cipriano) was found about five to six meters from
the body of Felix. 47 Like Galang, Morales saw pieces of stones which were different from the stones
found in Madali's yard which were mere corals or "boga," two pairs of slippers and the gabi plants which
appeared to have been trampled upon. 48

To prove aggression on the part of his victims, Madali presented a medical certificate stating that on
November 1, 1979, he was examined at the Tablas Island Emergency Hospital for a vertical contusion
(hematoma) on his left forehead and another contusion on the left deltoid region. 49
The lower court gave full faith and credit to the evidence of the prosecution, especially the testimonies
of eyewitnesses-victims Agustin Reloj and Merlinda Gasang. It found that the concerted acts of Madali
and his wife while committing the crimes proved conspiracy between them thereby making their
criminal responsibility collective. While finding that the prosecution failed to prove evident
premeditation, the lower court positively appreciated treachery to qualify as murder the killing of both
Cipriano and Felix Gasang. It noted, however, that the prosecution erred in charging as the separate
crimes of murder and frustrated murder the killing of Cipriano and the wounding of Merlinda. Observing
that only one bullet hit Cipriano and his daughter, Merlinda, the lower court concluded that the Madali
spouses should have been charged with the complex crime of murder and frustrated murder.
Accordingly, it imposed the penalties set out above for the crimes of frustrated murder, murder and the
complex crime of murder and frustrated murder.

In this appeal, the Madali spouses pray for their acquittal arguing that the lower court erred in: [a]
finding Annie Mortel Madali guilty as principal by direct participation; [b] not finding that the Gasangs
and their kins were motivated by revenge; [c] not finding that Ricarte Madali acted in self-defense; and
[d] in giving credence and/or adopting the theory of the prosecution instead of that of the defense.

The prosecution of these cases was highlighted by notable developments. Firstly, before the defense
could present its evidence, on September 6, 1980, the capitol building of Romblon was razed to the
ground. All court records were lost. The records of Criminal Cases Nos. 981 and 982 were, however,
reconstituted and the accused arraigned anew. 50 Secondly, prosecution eyewitness, Roman Galicia
recanted his testimony and appeared for the defense claiming that he did not see the gunwielder. 51 He
alleged that he testified for the prosecution for fear that the special prosecutor would revive the rape
case against him. 52 The lower court thereafter disregarded his entire testimony inasmuch as only the
transcript of his cross-examination as prosecution witness could be reproduced. 53 Thirdly, only the
testimony of Ricarte Madali was heard by the ponente below as the previous presiding judge was
transferred to another sala. 54

In view of the disqualification of Roman Galicia as a witness, the issue of the credibility of the
eyewitnesses has gained importance in this case. Significantly, it is the word of the accused Madali
spouses as against that of the surviving victims, Agustin Reloj and Merlinda Gasang. Both prosecution
and defense failed to present corroborative witnesses to buttress their testimonies.

Matters of credibility are ordinarily addressed to the discretion and discernment of the trial court which
is presumed to have observed the demeanor of the witnesses at the stand. While the ponente of the
decision below was able to hear only the testimony of accused Ricarte Madali, the Court sees no reason
for not giving sufficient weight to his factual findings considering that he took pains in thoroughly
studying the case even to the extent of conducting an ocular inspection of the scene of the crimes and
hearing part of the cross-examination of Madali thereat. 55

The defense is anchored on the justifying circumstance of self-defense. In order that such plea can
prosper, it must be positively shown that there was a previous unlawful and unprovoked attack that
placed the defendant's life in danger and forced him to inflict more or less severe wounds upon his
assailant, employing therefor reasonable means to resist the said attack. 56

The defense miserably failed to pass said test. Its allegation that the Madali residence was hurled with
stones before Madali confronted the Gasang group, was not credibly established. No one was able to
positively identify the stone-throwers. Not even Madali and his wife, Annie. There is no proof that the
stones found in the Madali yard were indeed the stones thrown at their house. It is interesting to note
that even defense witness Antonio Morales, a fellow policeman of Madali, testified that he did not have
personal knowledge on where the stones were discovered because he was only informed by Galang
(another policeman) "who in turn was only told by Ricarte that the latter was stoned. 57

Indeed, the defense story is riddled with contradictions and loopholes which the appellants failed to
rectify. At the trial, Agustin Reloj sketched a map of the neighborhood and placed Felix Gasang's body on
a spot across the road from the Madali gate. 58 The defense tried to discredit Reloj's sketch and his
testimony thereon by presenting policemen Morales and Galang who testified that Felix's body was
found close to the gate of the Madali residence. However, the testimonies of said policemen clashed
with each other. Morales testified that both the two dead bodies were found close to the gate while
Galang swore that while one body was near the gate, the other body was five meters away from the
Madali fence. 59 It should be noted that ten days after the alleged commission of the crime, police
investigator Fetalino found blood stains in the middle of the street indicating that a blood-drenched
body had been dragged across the
street. 60

If it were really true that both Agustin and Cipriano were armed with clubs, at least Cipriano's club
would have been found as he died on the spot. The nightstick found by the police could not have been
the one used by any of the victims. According to defense witness policeman Galang, the nightstick was
similar to that of a policeman. 61 Hence, it could have been the same nightstick which Madali admittedly
used in striking one of the intruders. 62

Granting that Agustin Reloj and Felix and Cipriano Gasang were armed with clubs and a knife, Madali's
means of resisting them was unreasonable under the circumstance. Having known that an interloper
was inside his yard, Madali, being a policeman, should have first fired a warning shot to deter said
intruder from executing whatever vicious plans he had. As it were, he fired directly at his victims and all
four shots hit their targets.

Moreover, if Agustin, Felix and Cipriano were the intruders, then they should be credited for their
extraordinary bravery in entering the Madali yard. They were neighbors and they must have known that
as a policeman, Madali possessed a service revolver. The lower court, which saw for itself the Madali
yard considered it "rather inconceivable" for people like the victims to ever dare go inside the premises
armed only with a knife and clubs. 63

The lower court is correct in characterizing the felonious assault on Agustin Reloj as frustrated murder.
While Agustin Reloj was hit only below his right hip, Madali's act of shooting was plainly attended by an
intent to kill. This is evidenced by the revealing statements of Madali while accosting Agustin Reloj some
fifteen (15) meters from Madali's house, thus: "So you are here, you devil, now you are finished. I have
been waiting for you. I have been waiting for you for three nights already. 64 The statements "now you
are finished" and "I have been waiting for you for three nights already" sufficiently show that Madali not
only intended to do away with Agustin Reloj but also that the crime had been premeditated. They
satisfactorily prove that Madali had formed a determination to commit the crime prior to the moment
of its execution; that he had clung to his determination and that there was sufficient interval of time
between the determination and the execution of the crime to allow him to reflect upon the
consequences of his act. 65
Moreover, after uttering those damaging statements, Madali dragged Reloj towards his gate. Annie then
clubbed Reloj who, however, succeeded in freeing himself from Madali's hold. Reloj was running away
when Madali shot him, hitting him below the right hip. 66

Indeed, firing at his fleeing victim and subsequently shooting to death two (2) other persons on the
same occasion, to our mind, evince quite clearly the intent to kill being then entertained by Madali.

There is likewise no doubt that Madali committed murder when he shot Felix Gasang twice in the body.
Treachery qualified the killing to murder punishable under Article 248 of the Revised Penal Code. There
was treachery because of the suddenness of the attack. Felix was raising his hands, 67 and saying that he
would not fight back when Madali feloniously fired at him twice. Annie Madali's uttering "Here comes
another" before Madali shot Felix may not be considered sufficient warning so as to rule out suddenness
of the attack. 68 However, no generic aggravating circumstance has been sufficiency proven.

We agree with the trial court that with respect to the killing of Cipriano Gasang and the wounding of
Merlinda Gasang, the crime committed was the complex crime of murder with frustrated murder
inasmuch as a single shot hit them both. 69 It is immaterial that Merlinda Gasang was wounded on the
leg and not on a vital part of her body. What is of primordial consideration is the fact that the criminal
act which killed Cipriano also caused Merlinda's injury. 70 As in the kiling of Felix, treachery qualified the
killing of Cipriano to murder because of the suddenness of the attack.

Annie Mortel Madali's defense strategy is to deny participation in the commission of the crimes and to
interpose an alibi. She insists that like any other wife, her natural reaction to situations which involve
risk is "to stay away, meditate and to shout and warn her husband of the intruders rushing towards
him. 71 She bewails the fact that the prosecution has pictured her as "a brave, pugnacious and aggressive
wife like the heroine of the pre-war movie "Annie of the Indies". 72 Indeed, Annie's role in the
commission of the crimes may appear to be straight out of an action picture were it not for the fact that
her denials and uncorroborated alibi cannot stand against the categorical declarations of prosecution
eyewitnesses Agustin Reloj and Merlinda Gasang on her participation therein. 73 She should have
presented witnesses to support her story. As she herself admitted, she and her husband were not alone
in their house when they were allegedly stoned. Six of their children were home then. 74 Some of them
must have been within the age of discernment inasmuch as their eldest child was 21 years old and
therefore, any one of them could have corroborated her story.

Nevertheless, the Court finds that proof beyond reasonable doubt has not been established as to the
existence of conspiracy between the Madali spouses. While direct proof is not essential to prove
conspiracy as it may be shown by acts and circumstances from which may logically be inferred the
existence of a common design among the accused to commit the offense(s) charged, the evidence to
prove the same must be positive and convincing considering that conspiracy is a facile devise by which
an accused may be ensnared and kept within the penal fold. 75 With this and the principle that in
criminal prosecution, doubts must be resolved in favor of the accused, as guides, the Court rules that
the liability of Annie Mortel Madali with respect to the crimes committed herein, is only that of an
accomplice.i•t•c-aüsl

Annie's participation in the shooting of the victims consisted of beaming her flashlight at them and
warning her husband of the presence of other persons in the vicinity. By beaming her flashlight at a
victim, Annie assisted her husband in taking a good aim. However, such assistance merely facilitated the
commission of the felonious acts of shooting. Considering that, according to both of the Madali spouses,
"it was not so dark nor too bright 76 that night or that "brightness and darkness were equally of the same
intensity. 77 Ricarte Madali could have nevertheless accomplished his criminal acts without Annie's
cooperation and assistance.

Neither may Annie's shouts of "here comes, here comes another, shoot" be considered as having incited
Ricarte to fire at the victims to make Annie a principal by inducement. There is no proof that those
inciting words had great dominance and influence over Madali as to become the determining cause of
the crimes. 78 The rapidity with which Madali admittedly fired the shots 79 eliminated the necessity of
encouraging words such as those uttered by Annie.

The fact that Annie dealt a blow on Agustin while he was being dragged by Madali to their yard does not
make her a principal by direct participation. Annie's act, being previous to Madali's act of shooting
Agustin, was actually not indispensable to the crime committed against Agustin. 80

Proof of motive is unnecessary where there is a clear identification of the accused. 81 More so in this
case where the principal accused does not deny having fired the fatal shots. But the Madali spouses
must have harbored a deep resentment against the Gasang family to put into action Madali's threat of
"sowing bullets" on them. What makes Madali's crimes even more reprehensible is the fact that he
claims to have committed them in the pursuit of his task as a peace officer. He even went to the extent
of wearing his fatigue jacket and trousers to create a facade of performance of an official function.
Sadly, he misused his authority and his wife, harboring an improper sense of connubial cooperation, did
not even try to dissuade him.

Under Article 48 of the Revised Penal Code, the penalty for a complex crime shall be the maximum
period of the penalty for the most serious crime. The death penalty being the maximum period of the
penalty for murder of reclusion temporal maximum to death under Article 248 of the same Code, the
death penalty should be imposed for the complex crime of murder with frustrated murder considering
that under Article 63, an indivisible penalty cannot be affected by the presence of any mitigating or
aggravating circumstance. It should be noted that under the ruling in People v. Muñoz, L-38968-70,
February 9, 1989, Article III, Section 19(1) of the 1987 Constitution does not change the period of the
penalty for murder except only insofar as it prohibits the imposition of the death penalty and reduces it
to reclusion perpetua. Hence, the lower court correctly imposed the penalty of reclusion perpetua on
Ricarte Madali for said complex crime.

The mitigating circumstance of voluntary surrender which was proven but not appreciated in favor of
Ricarte Madali by the trial court, should be considered in imposing on him the penalty for the murder of
Felix Gasang. The presence of this mitigating circumstance without any aggravating circumstance to
offset the same justified the imposition of the minimum period of the penalty for murder pursuant to
Article 64(2) of the Revised Penal Code. Accordingly, the proper penalty should be the indeterminate
sentence of not less than ten (10) years and one (1) day of prision mayor as minimum and not more than
twenty (20) years of reclusion temporal as maximum. 82

The same mitigating circumstance should be considered in the imposition of the penalty on Ricarte
Madali for the crime of frustrated murder committed against Agustin Reloj. The penalty for frustrated
murder in accordance with Article 50 in relation to Article 248 is prision mayor in its maximum period
to reclusion temporal in its medium period. Taking into consideration the mitigating circumstance of
voluntary surrender and applying the Indeterminate Sentence Law, the penalty imposed on Ricarte
Madali is four (4) years, two (2) months and one (1) day of prision correccional as minimum to 12 years
of prision mayor as maximum.

As an accomplice, Annie Mortel Madali should be imposed the penalty next lower in degree than that
prescribed by law for the consummated felonies. 83 For the complex crime of murder and frustrated
murder, like her husband, she shall be imposed the penalty of reclusion perpetua, 84 considering that the
penalty prescribed by law for Ricarte Madali is the death penalty. For the murder of Felix Gasang, the
penalty imposable on her is prision mayor maximum to reclusion temporal medium, 85 and there being
no aggravating nor mitigating circumstances, the penalty should be reclusion
temporal minimum. 86 Applying the Indeterminate Sentence Law, Annie Mortel Madali should therefore
be meted the penalty of six (6) years and one (1) day of prision mayor as minimum to fourteen (14)
years and eight (8) months of reclusion temporal as maximum. For the crime of frustrated murder
committed against Agustin Reloj, Annie Mortel Madali shall be sentenced to an indeterminate penalty of
from six (6) months and one (1) day of prision correccional as minimum to six (6) years and one (1) day
of prision mayor as maximum.

Ricarte Madali and Annie Mortel Madali shall also be liable to the heirs of Cipriano and Felix Gasang for
indemnity in the total amount of sixty thousand pesos (P60,000) in the proportion of 2:1 (2 shares for
Ricarte Madali as principal and 1 share for Annie Mortel Madali as accomplice), with each accused-
appellant being subsidiarily liable for the other in case of insolvency. The Court sees no reason to disturb
the lower court's findings on the reimbursement of hospitalization and medical expenses in favor of
Merlinda Gasang and Agustin Reloj as well as the award of damages, except to clarify that payment
thereof shall likewise be in the proportion of 2:1 as above stated and with each accused being
subsidiarily liable for the other in case of insolvency.

WHEREFORE, except as hereinabove modified, the decision of the lower court is hereby affirmed. Costs
against the appellants.

SO ORDERED.

8. Abejuela v. People, G.R. No. 80130, 19 August 1991

[G.R. No. 80130. August 9, 1991.]

BENJAMIN ABEJUELA, Petitioner, v. PEOPLE OF THE PHILIPPINES and COURT OF

APPEALS, Respondents.

Vicente Y. Bayani for petitioner.

DECISION
FERNAN, J.:

In this petition for review by certiorari, petitioner seeks a reversal of the decision of the Court of Appeals
dated September 16, 1987 which affirmed in toto the decision of the Regional Trial Court, Branch VII of
Palo, Leyte, dated January 11, 1984, convicting him as an accomplice in the complex crime of estafa thru
falsification of a commercial document under Article 315, paragraph 2 (a) of the Revised Penal Code in
relation to Article 172 thereof. 1

The facts of this case are uncontroverted.

Petitioner Benjamin Abejuela, a businessman engaged in the manufacture and fabrication of hand
tractors and other agricultural equipment, had a savings deposit with Banco Filipino, Tacloban Branch.
Sometime in April or May 1978, petitioner was befriended by Glicerio Balo, Jr., an employee of Banco
Filipino in the same Tacloban Branch. On several occasions, petitioner Abejuela and Balo would dine
together, go to nightclubs or have drinking sprees. 2 They became close friends. Balo even became the
godfather of Abejuela’s daughter. 3 Moreover, Balo offered Abejuela financial assistance in the latter’s
welding business, claiming that he was expecting a large sum of money out of the insurance policy of his
late father.

On August 3, 1978, Balo went to Abejuela’s welding shop to borrow the latter’s passbook. Abejuela was
surprised and thought that it was not possible for Balo to use his passbook. Balo showed Abejuela some
checks purporting to be the proceeds of his father’s insurance policy. He wanted to deposit the checks in
Abejuela’s account with Banco Filipino. Abejuela then suggested that Balo open his own account.
However, Balo explained that he was prohibited from opening an account with Banco Filipino since he
was employed with that bank as a savings bookkeeper. Abejuela advised Balo to open an account
instead with another bank but Balo insisted that he wanted the checks deposited with Banco Filipino so
that he could facilitate their immediate encashment as well as avail himself of some privileges. Balo
assured Abejuela that there was nothing wrong in allowing him to use his passbook and even reassured
Abejuela that he would accompany him to the bank to make the deposit.

Accepting Balo’s explanations and assurances, Abejuela entrusted his passbook to Balo. On August 8,
1978, Balo returned Abejuela’s passbook where a deposit in the amount of P20,000.00 was already
reflected. Once again, Balo assured Abejuela that there was nothing wrong with the deposit, and stated
that he just deposited one of his checks. On the same, day Balo requested Abejuela himself to withdraw,
in the former’s behalf, money from his account with Banco Filipino. Again with assurances from Balo,
Abejuela reluctantly agreed. He went to Banco Filipino and withdrew the amount of P15,000.00 which
he gave to Balo at a restaurant called Felisa’s Cafe.

Balo’s practice of depositing and withdrawing money using Abejuela’s passbook continued for quite
some time. During the month of August 1978, the account of Abejuela with Banco Filipino reflected a
total deposits of P176,145.00 and a total withdrawal of P175,607.96.

In the meantime, Abejuela borrowed P20,000.00 from Balo, payable within 90 days from August 9,
1978. But feeling apprehensive over Balo’s constant use of his passbook, Abejuela decided to pay his
loan on August 31, 1978 by borrowing P10,000.00 from his father and taking the other P10,000.00 from
his business profits. 4 Abejuela also closed his account with Banco Filipino by surrendering his passbook
and withdrawing the balance of his deposit.

Thereafter, the bank’s accountant and interest bookkeeper discovered a discrepancy between the
interest reconciliation balance and the subsidiary ledger balance. The interest bookkeeper could not
locate the posting reconciliation and the proof reconciliation. He also notice that Account No. 6701-0160
in the name of Benjamin Abejuela reflected four (4) large deposits on various dates from August 3, 1978
to August 23, 1978, totaling P176,145.25, but the deposits slips thereof could not be located.
After further examination of the bank records, the manager, accountant and interest bookkeeper were
convinced that the irregularities were caused by Balo who was the savings bookkeeper at that time and
who had access to Abejuela savings account ledger. They concluded that Balo was able to manipulate
the ledger, by posting the fictitious deposits after banking hours when the posting machine was already
closed and cleared by the bank accountant.

The bank officials confronted Balo, who feigned ignorance and initially denied the accusations, but later
admitted having posted the false deposits. Petitioner Abejuela was also implicated because he was the
owner of the passbook used by Balo in accomplishing his fraudulent scheme. On December 5, 1978, an
information was filed against Glicerio Balo, Jr. and Benjamin Abejuela for the crime of estafa thru
falsification of commercial documents. 5 Separately arraigned, both pleaded "not guilty" to the crime
charged. 6 Trial followed.

On May 29, 1979, acting on an application by Banco Filipino, the trial court issued an order of
preliminary attachment against all the properties of accused Glicerio Balo, Jr. and Benjamin Abejuela not
exceeding P176,145.25 in value, the amount allegedly embezzled or misappropriated. On September 4,
1979, the Deputy Sheriff of Palo, Leyte, filed a return of service and submitted an inventory of the goods
taken from the two accused and which goods were placed in the custody of the National Bureau of
Investigation. While the refrigerator and television set taken from the residence of Abejuela would not
command a good price on account of their poor condition, the goods seized from Balo were appraised at
P62,295.00. 7

In the meantime, Accused Glicerio Balo, Jr. was reported killed by members of the New People’s Army in
the mountains of Mat-i, Balangkayan, Eastern Samar, on suspicion that he was a PC informer and a
collaborator. This information came from a rattan gatherer and former NPA member whose testimony
before the court a quo was never impeached. Consequently, on February 25, 1981, the trial court
dismissed the case against Glicerio Balo, Jr., pursuant to Article 89 of the Revised Penal Code, but
without prejudice to a civil action for recovery of damages arising from the offense which may be
instituted by Banco Filipino and without prejudice also to the reinstatement of the instant criminal
action in the event the accused would turn out to be alive. 8 On September 7, 1981, Banco Filipino filed
a motion praying for the forfeiture in its favor of the goods seized from the accused which were in the
custody of the National Bureau of investigation. On November 5, 1981, the trial court, thru District
Judge Auxencio C. Dacuycuy, granted the motion and ordered the National Bureau of Investigation to
deliver the seized goods to Banco Filipino. In addition, the bank was authorized to withdraw the savings
deposit of Glicerio Balo, Jr. for eventual reversion to said bank. 9

Thereafter, trial continued with respect to petitioner Abejuela. On January 11, 1984, the lower court
adjudged petitioner Abejuela guilty. The dispositive portion of the decision reads:

"WHEREFORE, the court finds the accused Benjamin Abejuela guilty beyond reasonable doubt as
accomplice of the complex crime of estafa thru falsification of a commercial document under Art. 315,
par. 2(a) of the Revised Penal Code in relation to Art. 172 thereof and as the amount involved is more
than P22,000 he is hereby sentenced to an indeterminate penalty of not less than fifteen (15) years,
three months and 11 days to not more than sixteen (16) years, eight months and 21 days of reclusion
temporal, to indemnify Banco Filipino, Tacloban Branch, in the sum of One Hundred Seventy Six
Thousand One Hundred Forty Five Pesos and Twenty Five Centavos (P176, 145.25), without subsidiary
imprisonment in case of insolvency, and to pay one half of the costs.
"On May 29, 1979, the court issued a writ of preliminary attachment of the properties of defendants
Glicerio Balo, Jr. and Benjamin Abejuela. This Attachment is hereby made permanent." 10

Abejuela appealed to the Court of Appeals. On September 16, 1987, the Appellate Court affirmed the
decision of the trial court. 11 A motion for reconsideration filed by petitioner was denied in a resolution
dated October 7, 1987. Hence the instant appeal.

Petitioner Abejuela contends that the Appellate Court erred in not acquitting him for the following
reasons:

"(1) Accused-petitioner has no knowledge of the criminal intent of his co-accused, Glicerio Balo, Jr.,
hence, there being no conspiracy, he cannot be convicted as principal, neither as accomplice, nor did he
benefit from the effects of the crime, hence, he cannot be convicted even as an accessory.

"(2) The lending of the accused-petitioner of his passbook was made in good faith, and after he was
deceived by co-accused Glicerio Balo, Jr. that it is necessary because as employee of Banco Filipino he
cannot deposit in the said Bank.

"(3) The presumption of innocence and the ‘equipoise rule’ apply in favor of accused-petitioner." 12

Respondents, in their comment, maintain that petitioner Abejuela had knowledge of the fraudulent acts
of Glicerio Balo, Jr. They asseverate that petitioner is an intelligent individual who can take care of his
concerns, considering that he is a businessman who finished third (3rd) year college (commerce). 13

Respondent also point out that Abejuela should not only have been convicted as an accomplice but as a
principal by indispensable cooperation, because without the withdrawal slips which he executed
allegedly in spite of his many doubts and apprehensions, Glicerio Balo, Jr. could not have succeeded in
his scheme.

Petitioner, on the other hand, claims that he had no knowledge at all of the fraudulent machinations of
Balo, and that his act of lending his passbook was done in good faith.

After carefully weighing the arguments of both parties as well as taking into consideration the evidence
on record, we are inclined to believe that petitioner Abejuela was completely unaware of the
malevolent scheme of Balo. From Balo’s own admissions, it was he who deceived Abejuela through
sweet talk, assurances, drinking sprees and parties and cajoled him into giving in to his requests.
Furthermore, during that time, nobody would have questioned Balo’s source of money and since he had
a perfect alibi, i.e. the insurance proceeds of his later father. When Balo showed Abejuela some checks
purporting to be his father’s insurance proceeds, Abejuela was hoodwinked into believing that Balo
indeed had money. Balo’s request to borrow Abejuela’s passbook in order to facilitate the encashment
of the checks seemed reasonable enough, considering that they were close friends and "compadres",
Abejuela’s acquiescence to Balo’s overtures is understandable.

Furthermore, the court takes judicial notice of the practice of banks in allowing anybody to deposit in an
account even without the owner’s passbook, as long as the account number is known. Thus, even
without Abejuela’s passbook, the false deposits could still have been posted by Balo in the savings
account ledger of Abejuela. After all, the ledger is the record of the bank reflecting the transactions of
the depositor, while the passbook is the record of the depositor. More often than not, it is the ledger
which is more accurate and up-to-date. This is the reason why depositors have their passbooks updated
for unrecorded transactions like interests, checks deposited beyond clearance cut-off time and bank
charges.

In the instant case, the evidence of the prosecution clearly points at Balo as the one who had posted the
bogus deposits in Abejuela’s ledger. He was also the one who wisely manipulated petitioner Abejuela in
order that the fictitious deposits could be placed at his (Balo) disposal. Thus, when Balo requested
Abejuela to withdraw the amount he had earlier placed in the latter’s account, Abejuela had no choice
but to give in. He actually believed that the money was really owned by Balo and he did not want Balo to
think that he was interested in it. Thus, the prosecution miserably failed to prove beyond reasonable
doubt that Abejuela had knowledge of the fraudulent scheme of Balo. The most that could be attributed
to Abejuela was his negligence in lending his passbook and his utter gullibility.

Knowledge of the criminal intent of the principal (in this case, Glicerio Balo, Jr.) is essential in order that
petitioner Abejuela can be convicted as an accomplice in the crime of estafa thru falsification of
commercial document. To be convicted as an accomplice, there must be cooperation in the execution of
the offense by previous or simultaneous acts. However, the cooperation which the law punishes is the
assistance rendered knowingly or intentionally, which assistance cannot be said to exist without the
prior cognizance of the offense intended to be committed.

In a number of cases decided by this Court, it has been held that knowledge of the criminal intention of
the principal is indispensable in order to hold a person liable as an accomplice. Thus:

"It appearing that the accused who drove the taxicab in which the other accused rode did not actually
take part in the conspiracy to commit the crime of robbery but only furnished the means through which
the robbery could be perpetrated, with knowledge of the said criminal design, he is not guilty as
principal of the crime of robbery with homicide but is an accomplice therein." 14

"There is no evidence that appellant had conspired with the malefactors, nor that he actually
participated in the commission of the crime. He cannot, therefore, be considered as a principal. But in
going with them, knowing their criminal intention and in staying outside of the house with them while
the others went inside the store to rob and kill, appellant effectively supplied the criminals with material
and moral and, making him guilty as an accomplice." 15

It is axiomatic that in criminal proceedings, proof beyond reasonable doubt is necessary before a
judgment of conviction can be rendered. Not an iota of doubt must cloud the Court’s mind. A conviction
of a criminal offense must be based on clear and positive evidence and not on mere assumptions. 16

In the light of the facts and the evidence on record, we believe that the guilt of petitioner Abejuela has
not been established beyond a reasonable doubt for which reason he must be acquitted. The question
that must be resolved now is the effect of Abejuela’s acquittal on his civil liability.

The Rules provide: "The extinction of the penal action does not carry with it extinction of the civil, unless
the extinction proceeds from a declaration in a final judgment that the fact from which the civil might
arise did not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction
and in the manner provided by law against the person who may be liable for restitution of the thing and
reparation or indemnity for the damage suffered." 17
We decree the acquittal of Abejuela because we seriously doubt whether he had knowledge of the plan
of Balo to defraud Banco Filipino by means of posting false deposits and withdrawing these later.
Because of this doubt, however, his exoneration will not extinguish his civil liability. Thus, the civil
liability is not extinguished by acquittal where the same is based on reasonable doubt as only
preponderance of evidence is required in civil cases, or where the court has expressly declared that the
liability of the accused is not criminal but only civil in nature.

In Banal v. Tadeo, Jr., 19 we declared:

"While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so
much because it is a crime but because it caused damage to another. Viewing things pragmatically, we
can readily see that what gives rise to the civil liability is really the obligation and moral duty of everyone
to repair or make whole the damage caused to another by reason of his own act or omission, done
intentionally or negligently, whether or not the same be punishable by law."

It has been satisfactorily established that Banco Filipino suffered damage in the amount of P176,145.25
representing the fictitious deposits posted by Glicerio Balo, Jr. and systematically withdrawn through
the passbook of petitioner Abejuela. Although Abejuela, was unaware of the criminal workings in the
mind of Balo, he nevertheless unwittingly contributed to their eventual consummation by recklessly
entrusting his passbook to Balo and by signing the withdrawal slips. Abejuela failed to exercise prudence
and care. Therefore, he must be held civilly accountable.

WHEREFORE, on reasonable doubt, Benjamin Abejuela is hereby ACQUITTED of the complex crime of
estafa thru falsification of commercial documents. However, the writ of preliminary attachment issued
by the Regional Trial Court of Leyte on May 29, 1979 against petitioner’s properties and those of his co-
accused Glicerio Balo, Jr. to satisfy their civil obligation in the amount of P176,145.25 and which was
subsequently made permanent by the said court stands. No pronouncement as to costs.

SO ORDERED.

9. People v. Doble, G.R. No. L-30028, 31 May 1982

G.R. No. L-30028 May 3l, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CRESENCIO DOBLE, ET AL defendants, CRESENCIO DOBLE, SIMEON DOBLE and ANTONIO
ROMAQUIN, defendants-appellants.

DE CASTRO, J.:

This case refers to a bank robbery committed in band, with multiple homicide, multiple frustrated
homicide and assault upon agents of persons in authority, on June 14, 1966, in Navotas, Rizal. Only five
of ten accused were brought to trial, the other five named only as "John Does" in the information having
remained at large. Two of the five accused who stood trial, Mateo Raga and Celso Aquino were
acquitted, while the trial court, the Court of first Instance of Rizal, imposed the death penalty on the
appellants herein, Cresencio Doble, Simeon Doble and Antonio Romaquin The decision of the trial court
is now before Us for review for having imposed the death penalty.

Both the de ficio counsel for appellants and the then Solicitor General, Hon. Felix Q. Antonio, a retired
Justice of this Court, agree that as so narrated in the appealed decision, and as quoted in appellants'
brief, the relevant and material facts accurately reflect the evidence presented, except only as to the
fact that there were eight malefactors, with respect to which appellants are not in full conformity (p. 2,
Appellants' Brief).

As stated in the decision under review, the crime was committed as follows:

Late in the night of June 13, 1966, ten (10) men, almost all of them heavily armed with
pistols, carbines and Thompsons, left the shores of Manila in a motor banca and
proceeded to Navotas, Rizal. "Their mission: to rob the Navotas Branch of the Prudential
Bank and Trust Company. Once in Navotas and taking advantage of the darkness of the
night, eight (8) men disembarked from the banca and proceeded to the beach in the
direction of the branch bank. Within a few minutes, shots were heard throwing the
people around in panic. As confusion reigned, the people ran in different directions
scampering for safety. As time went on, the shots grew in intensity. As the commotion
died down, the eight men returned to their banca, still fully armed and some of them
carrying what looked like "bayongs". "They boarded the waiting motor banca and sped
away. As a result of the shooting, many people got killed and some injured. Among
those who were killed were agents of the law, like Sgt. Alejandro Alcala of the Philippine
Constabulary, Sgt. Eugenio Aguilos and Cpl. Teofilo Evangelista of the Navotas Police
Department. Dominador Estrella, a market collector, was also killed. 'Those who were
injured were Pat. Armando Ocampo, Exequiel Manalus Jose Fabian, Rosalina Fuerten
and Pedro de la Cruz.

The Prudential Bank and Trust Company branch office located at the North hay
Boulevard, Navotas, Rizal, the object of the bloody mission, has an unusual banking
hours. It opens at midnight and closes at 8:00 in the morning. The bank has ten
employees, more or less, including a security guard. It has two cages or compartments
for tellers. One cage was under the care of Melvin Domingo and the other one under
the care of Alejandro San Juan. At around 12:30 a.m. of June 14, 1966, Cesar Reyes,
assistant cashier of the bank, was near the cage of Domingo when two men entered the
bank asking that their money be changed. Domingo refused, saying that they had no
small denominations. Suddenly, three men armed with long guns barged in and fired at
the ceiling and the wall of the bank. They ordered the employees to lie down, face
downward and then demanded the key to the vault. When Reyes answered that they do
not have the key, the armed men aimed their guns at the vault and fired upon it until its
doors were opened. They entered the vault and found that they could not get anything
as the compartments inside the said vault were locked. Not being able to get anything
from the vault, the armed men went to the two teller cages and took whatever they
could lay their hands on. Not long afterwards, the men left, carrying with them the sum
of P10,439.95.

Just beside the bank was a police outpost. On the night in question, Pat. Nicolas Antonio
was in the outpost, together with Sgt. Aguilos, Pats. Pangan, Burgos, Rosal Ocampo and
 Cpl. Evangelists. were on duty watching the fish landing. Suddenly, Antonio said, at
around 1:30 a.m., he heard a burst which he believed came from a Thompson. He said
he saw a man pointing a Thompson upwards while he was in front of the banca
Afterwards, Antonio said, he heard another burst coming from the same direction.
Antonio and his companions then went to the middle of the road and again they heard
shots, and this time they were successive, coming from their left. Antonio could not see
who was firing the shots. Suddenly, he said, he saw one of this companions Cpl.
Evangelista topple down. He saw also Dominador Estrella sitting down folding his
stomach. They were both felled by the shots coming from the left side of the bank.
Antonio told Ocampo to go beside the outpost and held Sgt. Aguilos by the arm. Sgt.
Aguilos, however, collapsed and fell down. He was hit. Later on, Antonio said, he went
to the outpost and told Pat. Ocampo to go too. He said that from the outpost he heard
some more shots. Then he saw Ocampo hit in the thigh. After the firing ceased, Antonio
saw his wounded companions placed in a vehicle, together with Evangelista and Aguilos
who were already dead. Later on, he said he saw Sgt. Alcala, a member of the PC, lying
prostrate in the ground already dead. (pp. 83-85, Rollo).

It is noteworthy that from the above narration as to how the robbery and the killing that followed in its
wake were actually committed, the three appellants had no participation. It is not surprising that the
Solicitor General has recommended the acquittal of one of the appellants, Simeon Doble. With this
recommendation, it might be well to take up the case of this appellant ahead of the other two,
appellants Antonio Romaquin and Cresencio Doble.

In recommending Simeon Doble's acquittal, the Solicitor General made the following observation:

As to appellant Simeon, the evidence shows only that the malefactors met in his house
to discuss the plan to rob the Prudential Bank This circumstance, standing alone, does
not conclude his guilt beyond reasonable doubt. The facts do not show that he
performed any act tending to the perpetration of the robbery, nor that he took a direct
part therein or induced other persons to commit, or that he cooperated in its
consummation by some act without which it would not have been committed. It could
be that Simeon was present at the meeting held in his house and entered no opposition
to the nefarious scheme but, aside from this, he did not cooperate in the commission of
the robbery perpetrated by the others. At most, his act amounted to joining in a
conspiracy which is not punishable. Mere knowledge, acquiescence, or approval of the
act, without cooperation or agreement to cooperate, is not enough to constitute one a
party to a conspiracy, but that there must be intentional participation in the transaction
with a view to the furtherance of the common design and purpose (15 CJS 1062).

We are, therefore, unable to agree with the finding of the lower court that Simeon was
a principal both by agreement and encouragement, despite his non-participation in the
commission of the crime. Nor was it clearly proved that Simeon received a part of the
looted money as to make him an accessory. Romaquin's testimony that the day after the
robbery he gave P2.00 to Simeon who had asked for cigarettes (p. 5, t.s.n., May 25,
1967) could hardly be considered as the latter's share of the loot. It is significant that in
his statement he claimed he had not yet received his share. (pp. 10-11, Appellee's Brief;
p. 146, Rollo).
A review of the evidence of record shows the foregoing observation of the Solicitor General to be with
convincing rationality it is only that portion in which is cited Simeon's statement made before the
Navotas Police Department (Exh. I pp. 28-29, Folder of Exhibits) that "he has not yet received his share"
that detracts from the solidity of the Solicitor General's recommendation, for it gives the impression
that Simeon had given material or moral support or encouragement to the malefactors (referring to
those still at large as the principal culprits) as to entitle him to a share in the loot. However, a reading of
his whole extra-judicial statement would erase that impression, and reveals the true import of that
statement as intended only to show that Simeon had nothing to do with commission of the crime and
therefore did not receive any share of the fruits thereof. Thus, to quote pertinent portions Of his
statement. on custodial investigation:

3. T — Ano ang dahilan at ikaw ay naririto?

S — Dahil po sa aking pagkakasangkot sa holdapan dito sa isang Bangko

sa Navotas, Rizal at ako ay hinuli ng mga tauhan ng M. P. D.

4. T — Kailan ka hinuli?

S — Noon pong Miyerkules ng madaling araw, hindi ko alam ang petsa

pero nito pong buwan na ito.

5. T — Mayroon ka bang nalalaman tungkol sa pagkakaholdap ng isang

bangko dito sa Navotas?

S — Ang nalalaman ko po ay doon nagpulong sa aming bahay ang mga

taong nangholdap dito sa Navotas.

6. T — Sino-sino o ilang tao ang mga nagpulong sa inyong bahay?

S — Pirmero po ay walo (8), pagkatapos ay may dumating na dalawa pa

at ang mga kilala ko lamang po ay sina Tony na may an ng bangka, si Joe
Rondina Cresencio Doble at narinig kong may tinawag pang Erning. lyon
pong iba ay hindi ko alam ang pangalan pero makikilala ko Pag aking
nakitang muli.

7. T — Gaano katagal na nagpulong sa inyong bahay ang mga taong ito?

S — Mahigit pong mga isang (1) oras pero hatinggabi na nong Lunes ng
gabi (June 13, 1966).

8. T — Ano ang mga bagay na pinagpulongan sa inyong bahay?

S — Tungkol sa kanilang lakad na pagpunta sa isang bangko sa Navotas,

9. T — Sino ang nangunguna sa pulong na iyon?

S — Iyan po (witness pointing to the picture of Rodolfo Dizon, after
being shown five (5) other pictures).

10. T — Ano-ano ang mga narinig mong pinagpulongan?

S — Tungkol po doon sa gagawing pagnanakaw sa isang Bangko sa

Navotas, Rizal.

11. T — Samantalang sila ay nagpupulong, ano ang iyong ginagawa?

S — Wala po, hindi ko sila sinasaway at hindi ako kumikibo bastat ako ay
nakikinig lamang.

12. T — Bukod sa narinig mong magnanakaw sa bangko na usapan, ano

pa ang iba mong mga narinig?

S — Sinabi nito (witness pointing to the picture of Rodolfo Dizon) at ni

Jose Rondina na "MALAKING KUARTA TO, PERO MASYADONG
MAPANGANIB, AT KAILANGAN AY HANDA TAYO."

13. T — Ano pa ang sumunod?

S — Nagbubulong-bulongan ang iba tungkol doon sa gagawing

paglaban.

14. T — Ano pa ang nangyari?

S — Maya-maya po ay lumakad na sila, hindi ako sumama.

15. T — Pagkatapos?

S — Makaraan po ang mahigit na isang (1) oras ay nagbalik silang lahat.

16. T — Ano ang nangyari ng magbalik na sila?

S — Matapos po silang bumaba doon sa malapit sa aming bahay ay

nagmamadali na silang umalis dahil sa may tama ang isa sa kanila. At
noon pong umaga ng araw na iyon ay nagpunta ako kay Tony (Antonio
Romaquin at kumuha ng dalawang piso (P2.00) dahil iyong aking parte
ay hindi pa naibibigay sa akin. Pagkatapos po ay umuwi na ako sa amin.

17. T — Ano pa ang iyong masasabi kaugnay ng pangyayaring ito. Ikaw

ba ay mayroong nais na alisin o dili kaya ay baguhin sa salaysay mong
ito?

S — Mayroon pa po akong ibig na sabihin.

 18. T — Ano pa ang ibig mong sabihin?

S — Bago po tuluyang umalis sila sa aking bahay ay nag-usap-usap silang

lahat at ako ay sumama sa kanilang pag-uusap at nakapagbigay pa ako
ng mungkahi na ako na lamang ang maghihintay sa kanila dahil sa ako ay
may pinsala sa paa at maaaring hindi ako makatakbo at qqqmahuh
lamang.

19. T — Iyan bang pinsala mo sa kaliwang paa ay matagal na?

S — Opo, may limang (5) taon na.

20. T — Samantalang nag-uusap sa loob ng bahay mo, nasaan ka?

S — Kasama po sa loob ng aking bahay.

21. T — Ano pa ang masasabi mo?

S — Wala na po.

The only link between Simeon and the crime is his house having been used as the meeting place of the
malefactors for their final conference before proceeding to Navotas to rob the Prudential Bank branch
thereat. He did not join them because of a qqq5yeat old foot injury which would make him only a
liability, not one who can help in the devilish venture. To the malefactors he was most unwanted to join
them. If they met at his house it was only because it was near the landing place of the banca, and so he
invited them to his house while waiting for the banca to arrive. His mere presence in his house where
the conspirators met, and for merely telling them that he could not join them because of his foot injury,
and will just wait for them; evidently as a mere gesture of politeness in not being able to join them in
their criminal purpose, for he could not be of any help in the attainment thereof, and also to avoid being
suspected that he was against their vicious plan for which they may harm him, Simeon is by no means a
co-conspirator, not having even taken active part in the talks among the malefactors in his house.

Like the Solicitor General, We, therefore, find no culpable participation of Simeon Doble in the
commission of the crime, for, indeed, by his physical condition alone, he could not in any way be of help
to the malefactors in the pursuit of their criminal design, nor could he have been desired by the latter to
be one of them.

Taking up next the case of appellants Antonio Romaquin and Cresencio Doble, their main contention is
that their extrajudicial statements upon which their conviction was principally made to rest, are
inadmissible for having been allegedly obtained by force and intimidation, and in violation of basic
constitutional rights to counsel and against self-incrimination. In support of this contention, appellants
have only their own self-serving testimony to rely upon.

Thus, Cresencio Doble testified that while at the Navotas police department someone he could not
name boxed him on the chest, while one Sgt. Lacson hit him on the left side with the butt of a gun
causing him to lose consciousness; that he was made to lie on a narrow table and peppery liquid was
poured over his face, his eyesight then becoming dim, and it was then that he was made to sign a piece
of paper which he could not read because of his blurred eyesight.

Romaquin gave a similar story of torture and maltreatment in order to force him to admit culpable
participation in the heist. The inquiry must, accordingly, be whether the claim of violence and
involuntariness of their statements is true as to render said statements inadmissible in evidence.

Disputing the allegation of maltreatment in the execution of the custodial statements (Exhibits E, F, F-1,
G, H-1), the Solicitor General argues that the same is negated by how the details as given by both
appellants in their respective statements fit into each other, at least as to the part played by each from
the time Cresencio went to Romaquin's place to procure the latter's banca up to their get-away from the
scene of the crime. Thus, while Romaquin claimed in his statement that although he wanted to escape
from the scene after his passengers have disembarked for their evil mission, he could not do so because
Cresencio had a gun pointed at him to prevent his escape, as was the order given Cresencio by the rest
of the gang. The latter denied this allegation when he testified that he returned the gun given him
because he did not know how to use or manipulate it, although in his extra- judicial statement (Exhibit
M, p. 35, Record of Exhibits), he stated that he accepted the gun.

The statement of Romaquin as just cited in an attempt to exculpate himself which is generally taken as
an indication of lack of undue pressure exerted on one while giving his statement on custodial
interrogation. (People vs. Palencia, 71 SCRA 679).

The Solicitor General also observed, in disputing the claim of violent maltreatment to which appellant's
were subjected to, that neither one of the appellants presented medical certificate to attest to the
injuries allegedly inflicted (p. 3, Appellee's Brief) which disproves the claim (People vs. Tuazon, 6 SCRA
249; People vs. Dela Cruz, 88 Phil. 79). He also points to the fact that in his extrajudicial statement
(Exhibit M, p. 35, Record of Exhibits), Celso Aquino, one of the accused, made no admission of his
participation in the bold bank robbery, and in his testimony in court, he admitted that no violence was
applied to him when he gave his statement (p. 12, t.s.n., July 12, 1967; p. 4, Appellee's Brief). 'This is
evidence enough that the appellants could not have been dealt with differently as their co-accused
Aquino who was allowed to give his statement freely without the employment of force or intimidation
upon him. The evidence also disclosed a note (Exhibit E) of Cresencio addressed to Romaquin asking the
latter not to reveal the names of their companions. This means that the names of the members of the
band led by Joe Intsik must have been known to both appellants. That the Identity of five of those
charged in this case has remained only as "John Does" indicate the non-employment of any coercive
means with which to force them into revealing the names of their companions in the robbery, again
negating the claim of torture and violence.

It is, likewise, to be noted that appellants Romaquin and Cresencio virtually confirmed their extra-
judicial statements when they testified in court. By all the proofs as cited, persuasive enough to show
the voluntariness of their custodial statements plus the positive denial of Sgt. Lacson, the only one
named among the alleged torturers, that any violence was practiced by the investigators, specifically,
the alleged delivery of fist blows on Cresencio. (pp. 3, 6, 7, 18, t.s.n., October 27, 1967) the alleged
involuntariness of the extra-judicial statements is fully discredited.

It is hinted that the killing of suspect Rodolfo Dizon while allegedly attempting to escape could have
instilled fear in the minds of the appellants which affected their freedom of will in giving their own
statements (p. 12, Appellant's Brief). This is a far-fetched argument to prove involuntariness in the giving
of the statements, the killing having taken place after their interrogation. In his supplemental statement
dated July 5, 1966 Exhibits F-2, p. 20, Record of Exhibits), Romaquin pointed to the person of Rodolfo
Dizon. His death therefore, took place long after appellants have given their main statements, all in mid
June, 1966. If counsel de oficio had only bothered to check the dates of the main statements of both
appellants which were given not later than just past the middle of June, 1966, and that of the
supplementary statement of Romaquin which is July 5, 1966, he would not have probably come forth
with this argument.

Counsel de oficio, invoking a ruling in an American case, Miranda vs. Arizona, 16 L. Ed. 2nd. 694, harps
on the inadmissibility of appellants' custodial statements, for their having been unaided by counsel, nor
informed of their right thereto during the interrogation. 'There might be merit in this contention were
the right to counsel during custodial interrogation one of constitutional grant as is provided in our 1973
Constitution, before which the right was given only to an accused, not to a mere suspect during in-
custody police interrogation (Magtoto vs. Manguera 63 SCRA 4; People vs. Dumdum Jr. G. R. No. L-
35279, July 30, 1979). At the time of their custodial interrogation in 1966, however, the requisite of
assistance of counsel was not yet made a matter of constitutional right, as it has been granted only by
the new 1973 Constitution.

The right against self-incrimination, as invoked by appellants, can neither be appreciated to impair the
admissibility of their extra-judicial statements. It is the voluntariness of an admission or confession that
determines its admissibility, for no principle of law or constitutional precept should stand on the way of
allowing voluntary admission of one's guilt, the only requisite justly demanded being that ample
safeguard be taken against involuntary confessions. Once the element of voluntariness is convincingly
established, which, incidentally, is even presumed, the admissibility of an extra-judicial confession,
admission or statement becomes unquestionable. 1

The extra-judicial statements of appellants, however, when evaluated with the testimony they gave in
court, would convince Us that their liability is less than that of a co-principal by conspiracy or by actual
participation, as as was the holding of the trial court. The most damaging admission made in the extra-
judicial statements of Cresencio is that he was asked by Joe Intsik, the gang leader, at 8:00 o'clock in the
evening of June 13, 1966, if he could procure a banca for his use, and that Joe Intsik, on being asked by
Cresencio, allegedly told him that the banca would be used for robbery. Cresencio gave an affirmative
answer to Joe Intsik's query, having in mind Tony Romaquin who had a banca. Cresencio accompanied
Joe Intsik to Romaquin at 12:00 in the evening. In Romaquin's statement (Exh. C also Exh. 1, Romaquin,
p. 15, Record of Exhibits), Cresencio allegedly asked him to bring his friends in his banca, to board a
launch for a trip to Palawan. The discrepancy between the statements of Cresencio and Romaquin as to
the intended use of the banca is at once apparent, for while according to the former, it was for the
commission of robbery, according to the latter, it was to bring Cresencio's friends to board a launch for a
trip to Palawan. What is demonstrated thereby is the full freedom with which both appellants were
allowed to give their respective statements while in custodial interrogation.

Cresencio's consenting to look for a banca, however, did not necessarily make him a co-conspirator.
Neither would it appear that Joe Intsik wanted to draft Cresencio into his band of malefactors that
would commit the robbery more than just asking his help to look for a banca. Joe Intsik had enough men
all with arms and weapons to perpetrate the crime, the commission of which needed planning and men
to execute the plan with full mutual confidence of each other, which is not shown with respect to
appellants by the way they were asked to look and provide for a banca just a few hours before the
actual robbery.
Romaquin, for his part, appears not to be known to the principal malefactors still at large, to be asked to
join actively in the conspiracy. The amount received by Romaquin who alone was given money by the
malefactors in the sum of P441.00, indicate that the latter did not consider appellant as their
confederate in the same character as those constituting the band of robbers. The sum given to
Romaquin could very well represent only the rental of his banca, and for the cooperation he extended to
the malefactors, which, by no means, is an indispensable one. Cresencio, on the other hand, was not
given any part of the loot. It was only Romaquin who gave him P4 1.00, clearly not what should
represent his share if he were a full-fledged ally or confederate.

The apprehension of the malefactors that upon realizing the full impact of their vicious misdeeds,
Romaquin might speed away from the scene in fear of being implicated, as shown by the measure they
had taken to prevent his escape, is further proof that Romaquin was not considered a co-conspirator,
who is one who should not be looked upon with mistrust. For his part, Cresencio testified that while he
was given a gun with which to cover Romaquin who might escape, he returned the gun because he did
not know how to use it, and so one of the malefactors was left near the beach to prevent appellants
fleeing from the scene of the crime with banca. In his statement, however, (Exh. M, p. 35, Record of
Exhibits), he refused to accept the gun, but they gave it just the same, and he received it.

The circumstances pointed out would not make appellants liable as co-principals in the crime charged.
At the most their liability would be that of mere accomplices. They joined in the criminal design when
Cresencio consented to look for a banca and Romaquin provided it when asked by the gang leader Joe
Intsik, and then brought the malefactors to the scene of the robbery, despite knowledge of the evil
purpose for which the banca was to be used. It was the banca that brought the malefactors to the bank
to be robbed and carried them away from the scene after the robbery to prevent their apprehension.
Appellants thus cooperated but not in an indispensable manner. Even without appellants providing the
banca, the robbery could have been committed, specially with the boldness and determination shown
by the robbers in committing the crime.

The complicity of appellant Cresencio is further shown by his note (Exhibit "H", p. 26, Record of Exhibits)
addressed to Romaquin asking him not to reveal to the police the names of their companions. He went
to Romaquin and asked for money which the latter gave in the sum of P41.00, as if to show that he had
helped in some material way to deserve a share in the loot.

As to Romaquin, while he testified that the malefactors gave a gun to Cresencio with which the latter
would prevent Romaquin from fleeing away from the scene, evidently to show that he never joined in
the criminal purpose, and that all his acts were in fear of bodily harm and therefore, not voluntary, the
measure taken by the malefactors to prevent his escape, could have been just an extra precaution, lest
he would be stricken with fear in the course of the commission of the crime specially if attended by
shootings as it was really so. If it is true that he never voluntarily made the trip with knowledge of the
planned robbery, and with Cresencio saying that he returned the gun given him with which to prevent
Romaquin from speeding away, Romaquin could have tried a get-away, as should have been his natural
impulse had he not joined in the criminal design. His act of hiding the money he received from the
malefactors, and repainting his boat, all attest to his guilty conscience arising from the act of
cooperation he knowingly extended to the principal culprit to achieve their criminal purpose.

An accomplice is one who, not being principal as defined in Article 17 of the Revised Penal Code,
cooperates in the execution of the offense by previous or simultaneous acts (Art. 18, Revised Penal
Code). There must be a Community of unlawful purpose between the principal and accomplice and
assistance knowingly and intentionally given (U.S. vs. Belco 11 Phil. 526), to supply material and moral
aid in the consummation of the offense and in as efficacious way (People vs. Tamayo, 44 Phil. 38). In this
case, appellants' cooperation is like that of a driver of a car used for abduction which makes the driver a
mere accomplice, as held in People vs. Batalan 45 Phil. 573, citing the case of U.S. vs. Lagmay, G.R. No.
L-15009.

It is however, not established by the evidence that in the meeting held in the house of Simeon Doble,
the malefactors had agreed to kill, if necessary to carry out successfully the plan to rob. What appellants
may be said to have joined is the criminal design to rob, which makes them accomplices. Their
complicity must, accordingly, be limited to the robbery, not with the killing. Having been left in the
banca, they could not have tried to prevent the killing, as is required of one seeking relief from liability
for assaults committed during the robbery (Art. 296. Revised Penal Code). 2

The finding that appellants are liable as mere accomplices may appear too lenient considering the
gravity and viciousness of the offense with which they were charged. The evidence, however, fails to
establish their complicity by a previous conspiracy with the real malefactors who actually robbed the
bank and killed and injured several persons, including peace officers. The failure to bring to justice the
real and actual culprits of so heinous a crime should not bring the wrath of the victims nor of the
outraged public, upon the heads of appellants whose participation has not been shown to be as
abominable as those who had gone into hiding. The desire to bring extreme punishment to the real
culprits should not blind Us in meting out a penalty to appellants more than what they justly deserve,
and as the evidence warrants.

Accordingly, We find appellants Cresencio Doble and Antonio Romaquin guilty beyond reasonable
doubt, but only as accomplices for the crime of robbery in band. 3 As discussed earlier, appellant Simeon
Doble is entitled to acquittal as so recommended by the Solicitor General who finds no sufficient
evidence, to which We agree, to establish his guilt beyond reasonable doubt.

The penalty imposable upon appellants Cresencio Doble and Antonio Romaquin, as accomplices for the
crime of robbery in band is prision mayor minimum which has a range of 6 years, 1 day to 8 years as
provided ill Article 295 of the Revised Penal Code in relation to Article 294, paragraph 5 of the same
code. The commission of the crime was aggravated by nighttime and the use of a motorized banca.
There being no mitigating circumstance, both appellants should each be sentenced to an indeterminate
penalty of from five (5) years, four (4) months, twenty-one (21) days of prision correccional to eight (8)
years of prision mayor as maximum, and to indemnify the heirs of each of the deceased in the sum of
1112,000.00 not P6,000.00 as imposed by the trial court.

WHEREFORE, modified as above indicated, the judgment appealed from is affirmed in all other respects.
The immediate release of Simeon Doble who is hereby acquitted is ordered, unless he should be
continued in confinement for some other legal cause. Proportionate costs against Cresencio Doble and
Antonio Romaquin.

SO ORDERED.

10. People v. Doctolero, G.R. No. 34386, 7 February 1991

G.R. No. 34386 February 7, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LUDOVICO C. DOCTOLERO alias "ECOY," CONRADO C. DOCTOLERO alias "CONDRING," and VIRGILIO C.
DOCTOLERO alias "VERGEL," accused-appellants.

The Solicitor General for plaintiff-appellee.

Hermogenes S. Decano for accused-appellants.

REGALADO, J.:

Accused-appellants Ludovico Doctolero and his brothers, Conrado and Virgilio Doctolero, charged with
and convicted in the then Court of First Instance, Branch II, Pangasinan, of the crime of multiple murder
and unspecified physical injuries, appealed from the decision of the court a quo the decretal portion of
which reads:

WHEREFORE, in view of the foregoing, the court finds the accused Ludovico Doctolero guilty as
principal, and his co-accused Conrado Doctolero and Virgilio Doctolero guilty as accomplices, in
committing the crime of Murder, which caused the death of Epifania Escosio, Lolita de Guzman
Oviedo and Marcelo Doctolero, and in inflicting physical injury on the minor child, Jonathan
Oviedo. Accordingly, in the absence of other circumstances to mitigate the penalty, the accused
Ludovico Doctolero is sentenced to suffer the penalty of three (3) LIFE IMPRISONMENTS
(CADENA PERPETUA) for the deaths of Epifania Escosio, Lolita de Guzman Oviedo and Marcelo
Doctolero, and the additional penalty of 4 Months and 1 Day to 6 Months of arresto mayor, for
inflicting slight physical injury to (sic) the minor child, Jonathan Oviedo. The accused Conrado
Doctolero and Virgilio Doctolero, as accomplices, are sentenced to suffer the penalty of 10 years
and 1 Day of prision mayor to 17 Years and 4 months of reclusion temporal, for the death of
Epifania Escosio; the penalty of 10 Years and 1 Day of prision mayor to 17 Years and 4 Months
of reclusion temporal, for the death of Lolita de Guzman Oviedo: the penalty of 10 Years and 1
Day of prision mayor to 17 Years and 4 Months of reclusion temporal, for the death of Marcelo
Doctolero; and the additional penalty of 2 Months and 1 Day to 4 Months of arresto mayor for
the slight physical injury suffered by the minor child, Jonathan Oviedo. All accused Ludovico,
Conrado and Virgilio all surnamed Doctolero, are ordered to indemnify the heirs of the deceased
Epifania Escosio, in the sum of P12,000.00; the heirs of the deceased Lolita de Guzman Oviedo,
in the sum of P12,000.00; and the heirs of the deceased Marcelo Doctolero, in the sum of
P12,000.00; and to pay three-fourths (3/4) of the costs. The accused Antonio Doctolero is
acquitted, with one-fourth (1/4) cost de oficio.1

The information filed against appellants alleges that the crime was committed as follows:

That on or about the 8th day of November, 1970, in barrio Binday, municipality of San Fabian,
province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, armed with bolos, went up the house of Marcial Sagun and once thereat,
conspiring together and mutually aiding one another, with intent to kill and with evident
premeditation and treachery, with abuse of superior strength and with extreme cruelty, did,
then and there, wilfully, unlawfully and feloniously attack, assault, hack, stab and strike Lolita de
 Guzman Oviedo, Epifania Escosio and Jonathan Oviedo and immediately thereafter, the same
accused while already on the road, conspiring together and mutually aiding one another, with
intent to kill and with evident premeditation and treachery, attack, assault, hack and stab
Marcelo Doctolero, thereby inflicting upon him multiple mortal wounds which caused his
death.2

Upon arraignment, all the appellants pleaded not guilty to the crimes charged. In its decision, the trial
court made the following findings and a summary of the evidence for the prosecution thus:

It is undisputed that on the evening of November 8, 1970, Epifania Escosio and Lolita de Guzman
were killed in the house of Marcial Sagun in Sitio Binday, municipality of San Fabian, province of
Pangasinan, where they were living. Jonathan Oviedo, 1 1/2 year old child of Lolita de Guzman,
was on the same occasion, slightly injured while being fed on the breast of his mother. On the
road, a few meters from the house of Marcial Sagun, Marcelo Doctolero, 81 years old, was
fatally injured. He was taken to the Pangasinan Provincial Hospital but he died on the way. . . .

The evidence for the prosecution tend to show that the three (3) accused, Ludovico, Conrado
and Virgilio, all surnamed Doctolero, were responsible for the death(s) of Epifania Escosio and
Lolita de Guzman, and in inflicting physical injuries to (sic) Jonathan Oviedo. And immediately
thereafter, with their father and co-accused, Antonio Doctolero, they hacked Marcelo
Doctolero, with their bolos which caused the death of the latter.

The principal witnesses for the prosecution are: Marcial Sagun, his wife Maria Sagun, and
Paciencia Sagun-Diamoy. According to Marcial Sagun, at about 6:30 in the evening on November
8, 1970, he and his wife, Maria Oviedo-Sagun and Lolita de Guzman-Oviedo (sister-in-law of
Maria Oviedo-Sagun) were on their way home to Barrio Binday. They came from the field where
they bundled their harvests. Upon reaching a crossing of the road in Bo. Binday they met the
accused Ludovico Doctolero who, without warning and without cause or reason, held the left
shoulder of Marcial Sagun with his left hand and struck Marcial Sagun with a bolo. The latter
evaded that blow and wrestled with Ludovico Doctolero for possession of the bolo of the latter.
Lolita de Guzman-Oviedo became frightened when Ludovico Doctolero and Marcial Sagun were
wrestling for the possession of the bolo of the former, so she ran away in the direction of the
house in Sitio Binday.

Paciencia Sagun-Diamoy (sister of Marcial Sagun) testified that while she was cleaning palay in
the yard of her uncle, the deceased Marcelo Doctolero, she saw the accused, Ludovico. Conrado
and Virgilio (all surnamed Doctolero) throw stones at the house of Marcial Sagun. While
throwing stones, Ludovico allegedly shouted for the man in the house to come out. Paciencia
Sagun-Diamoy went towards the house of Marcial Sagun and saw the three accused, Ludovico,
Conrado and Virgilio, coming down from the house going towards her. She told them: "Why
can't you be patient and forget?" But she was asked not to interfere. At about that time,
Marcelo Doctolero, half-brother of Antonio Doctolero, and uncle of the three accused was going
towards the house of Marcial Sagun, when he met the three accused, Ludovico, Conrado and
Virgilio. Marcelo Doctolero told them why they can't be patient and forget, but the three
accused replied "Vulva of your mother, we will also kill you." Then they struck Marcelo
Doctolero several times with their bolos. And when their father Antonio Doctolero arrived, he
also struck Marcelo Doctolero with a bolo on the head. Marcelo Doctolero fell and then all the
accused ran away.
 The testimony of Paciencia Sagun-Diamoy is sought to be corroborated by the testimony of
Maria Oviedo-Sagun (wife of Marcial Sagun) who declared that while she was in the house of
Marcelo Doctolero, to whom she reported the incident between Ludovico Doctolero and
Marcial Sagun, she saw the three accused Ludovico, Conrado and Virgilio throwing stones at
their house and called to all the men in the house to come out. She was about to go to their
house to get her children but she saw the three accused Ludovico, Conrado and Virgilio going
up. So she hid behind the palm tree, a few meters away from their house. While there, she
heard Epifania Escosio (her adopted mother) shouting at her, saying "Enieng, your children."
Then she saw the three accused coming down from the house, going towards the road where
they met Marcelo Doctolero whom they also boloed several times until he fell. When Antonio
Doctolero arrived, he also struck Marcelo Doctolero with a bolo. Then they all left.3

On the other hand, appellants present the following version:

On November 8, 1970, at about 6:00 o'clock in the evening, Ludovico Doctolero met at the
crossing of Bo. Banana and Binday road, San Fabian, Pangasinan. Marcial Sagun, who was with
his wife, Maria Oviedo, Antonio Oviedo and the latter's wife, Lolita de Guzman. Antonio Oviedo
is the brother-in-law of Marcial Sagun, he being the brother of Maria Oviedo. (tsn, p. 7 hearing,
February 17, 1971-Somera). Marcial Sagun and company were on their way home. (p. 8, Ibid).

Ludovico greeted Marcial Sagun: "Where have you been cousin." (p. 8, ibid) He noticed,
however, Antonio Oviedo holding his bolo on his waist. So, he asked his cousin Marcial Sagun
why Antonio Oviedo was like that. The latter unsheathed his bolo and boloed Ludovico with a
downward swing. He parried the bolo with his left hand (p. 9, ibid), but he was hurt in the
process (p. 10, ibid).

At that juncture, Marcial Sagun unsheathed his bolo and Ludovico Doctolero also unsheathed his
bolo. They watched each other's step (p. 10, ibid) with the two women, Lolita de Guzman and
Maria Oviedo, hitting the back of Ludovico with a wood (sic). The latter ignored them, as his
eyes were towards Marcial Sagun and his brother-in-law, Antonio Oviedo (p. 11, ibid).

Realizing that he could not afford to fight both Marcial Sagun and Antonio Oviedo, Ludovico
tried to escape by boloing Maria Oviedo, whom he hit at the back. He retreated and then run
(sic) away, with Marcial Sagun and Antonio Oviedo throwing stones at him. (p. 12, ibid).

Ludovico went to the house of his father, Antonio Doctolero. The latter was eating his meal,
together with his small children upstairs, while accused-appellant, Conrado Doctolero was in the
kitchen downstairs also eating his meal, when Ludovico arrived (p. 13, ibid; p. 4, hearing June 8,
1971-Salazar).

He told his father that he was wounded and asked him to look after his children as he might
meet something bad that night. He did not enter the house anymore: he was only until the door.
Then he ran away. His father asked him what happened, but he did not answer anymore. (p.
14, ibid, p. 4, Salazar).

He ran towards his house, taking a short cut by passing through the house of his cousins, Juanito
and Cresencia Doctolero. As he came near his house, he saw the house of Marcial Sagun, who
 was also his immediate neighbor. His blood boiled. He went to Marcial's house calling him to get
down. When Marcial did not get down, he peeped and noticed that Marcial Sagun was not
there. So he went upstairs to ask Epifania Escosio, who told him that Marcial Sagun went
towards the South. He was about to leave when the old woman hit him at the back of his neck,
causing him to see darkness and (he) boloed her several times (p. 13-19, tsn, hearing, February
17, 1971).

Ludovico went downstairs to look for Marcial Sagun. He stayed a while at the trunk of the buri
tree, thinking that he might be ambushed. Here, he did not notice anyone coming from the
south or the east. So he tried to move, but as he did so, he noticed someone approaching him
coming from the yard of Marcelo Doctolero. As it was dark he did not recognize the man and
thinking that it was Marcial Sagun, he met him. It turned out however, that the man was
Marcelo Doctolero. So he returned the bolo he was holding in its scabbard. He asked Marcelo
Doctolero where Marcial Sagun was, but Marcelo Doctolero answered him, "because of your
foolishness" and hit him on the shoulder, but in the process of evading the blow, Ludovico
Doctolero was hit at the back. As Marcelo Doctolero tried to hit him for a second time he took a
side step and took hold of the stick and pulled it away, causing Marcelo Doctolero to fall on his
knees. He was able to get the club, but Marcelo Doctolero unsheathed Ms bolo. When the latter
insisted on unsheathing his bolo, Ludovico Doctolero boloed him many times. (pp. 19-26, ibid).4

The police were then informed of the brutal murders as well as the injury caused to the child. A doctor
and a photographer went to the scene of the crime and pictures were then taken.5

Quoting from the findings of the Rural Health Officer of San Fabian, the court below established that ––

. . . nine (9) wounds were inflicted on the body of Marcelo Doctolero, namely:

xxx xxx xxx

(1) Incised wound, 5 inches from the upper border of the left ear to the side of the forehead.
There is fracture of the underlying skull.

(2) Incised wound 6 inches in length 1 1/2 inches above the 1st wound with fracture of the
underlying skull.

(3) Incised wound 4 inches in length 1/2 inch above the 2nd wound with fracture of the
underlying skull.

(4) Incised wound 6 inches in length from the upper border of the left eyebrow to the right
eyebrow. There is also fracture of the underlying skull.

(5) Incised wound –– 3 1/2 inches in length 1 1/2 from the angle of the month towards the lower
border of the right ear. The lower lobe of the ear is detached.

(6) The lower third of the left small finger is almost cut off.
 (7) Incised wound at the median portion of the left hand. There is a severance from the level of
the middle finger.

(8) Incised wound –– 1 1/2 inches long at the median portion and distal 3rd of the forearm, left.

(9) Incised wound 1 1/2 inches long above the 8th wound.

xxx xxx xxx

One wound was inflicted on the body of Lolita de Guzman, namely, "stab wound around 3 cms.
long and 4 inches in depth at the 2nd intercostal space just at the left border of the sternal
bone." (Exh. C). And nine (9) wounds were inflicted on the body of Epifania, namely:

xxx xxx xxx

(1) Stab wound around 4 cms. in length and around 5 inches deep penetrating the sternal bone
at the level of the 2nd intercostal space.

(2) Incised wound 3 inches in length just skin deep at the level of the right clavicular region.

(3) Incised wound 2 inches in length also skin deep one inch below the second wound.

(4) Chopping wound 3 inches in circumference with fracture of the underlying skull at the right
frontal portion of the head.

(5) Incised wound around one inch length at the left frontal portion of the head.

(6) Incised wound 3 inches long just at the level of the shoulder joint, exposing the bony portion,
left.

(7) Incised wound one inch long 1/2 inch below the sixth wound.

(8) Incised wound one inch long 4 inches below the seventh wound.

(9) Incised wound around 3 inches in length at the base and lateral portion of the hand right.
There was fracture of some of the underlying bones.6

Regarding the wounds inflicted upon Jonathan Oviedo, the resident physician at the Pangasinan
Provincial Hospital, Dr. Rodolfo Ramirez, explained the same as follows: "Stab wound, thru and thru,
about 1 1/2 inches on the lateral aspect of the dischartered forearm, right. Then, there was another
about 1 inch of the middle aspect of the right forearm. There was also an incised wound, about 1/2 inch,
temporal right." He further testified that the child was admitted to the hospital on November 8, 1970
and was discharged completely healed fifteen (15) days later.7

During the pendency of the present petition and on motion of appellant Ludovico Doctolero, on May 17,
1976 the Court resolved to grant the withdrawal of his appeal8
and entry of judgment with regard to said accused was made on the same day.9

In a resolution dated June 28, 1988, the Court noted the manifestation of counsel for accused-
appellants, dated May 9, 1988, stating that Virgilio Doctolero died on October 22, 1983 as per death
certificate attached thereto as Annex "A".10 Hence, this review is only with respect to the liability of
appellant Conrado Doctolero.

The trial court correctly found that appellant Conrado Doctolero participated as an accomplice in the
commission of the crimes charged. In his defense, appellant denies having participated in the
commission thereof and raises the effete defense of alibi, contending that he was not at the place
where the crimes were committed. Appellant's pretension, however, was not corroborated by any
evidence other than the testimony of the other erstwhile appellants. While the testimony of a co-
conspirator or an accomplice is admissible, such testimony comes from a polluted source and must be
scrutinized with great caution as it is subject to travel suspicion.11

This uncorroborated denial of his participation cannot overthrow the positive and categorical testimony
of the principal witnesses of the prosecution, and between the positive declarations of the prosecution
Witness and the negative statements of the accused, the former deserves more credence.12

There is no showing that the witnesses had any motive to testify falsely against appellants. The only
imputed grudge that Paciencia Sagun-Diamoy may have had against appellants occurred years ago and
she was, at the time she testified, on good terms with appellants as shown by the following testimony of
Ludovico Doctolero himself:

Q And even before Paciencia Sagun Diamoy testified as one of the prosecution witness (sic) your
relationship with her was harmonious and rather very closed (sic) being your cousin?

A Yes, sir.

Q As a matter of fact, whenever she goes to San Fabian to visit her relatives she did not fail to
see you in your house?

A Yes, sir sometimes she slept in my house.13

As to Maria Sagun, we agree with the court a quo when it held that "Maria Sagun (wife of Marcial
Sagun) pointed to the three accused. Ludovico, Conrado and Virgilio, all surnamed Doctolero, as the
persons who went up her house that night of November 8, 1970. While Maria Sagun may have a grudge
against the accused Ludovico Doctolero by reason of that previous incident at the crossing yet, no
reason or motive is shown why Maria Sagun should also implicate Conrado and Virgilio Doctolero in the
commission of the crime."14

When there is nothing in the records which would show a motive or reason on the part of the witnesses
to falsely implicate the accused, identification should be given full credit.15

And when there is no evidence and nothing to indicate that the principal witness for the prosecution
was moved by improper motives, the presumption is that he was not so moved, and his testimony is
entitled to full faith and credit.16
In an attempt to disprove the findings of the trial court, appellant points to certain inconsistencies that
allegedly render the testimonies of the prosecution witnesses incredible. These inconsistencies,
however, are not so substantial as to destroy their credibility. As correctly explained by the People, the
seeming contradictions and minor inconsistencies in the testimonies of the prosecution witness pointed
out by the appellants in their brief are mere inconsequential variations on the part of each observer in
relating his own observation of the same incident. Contradictions and inconsistencies of witnesses in
regard to the details of an incident far from demonstrating falsehood constitute evidence of good faith.
Not all persons who witness an incident are impressed by it in the same manner and it is but natural that
said eyewitnesses should disagree on minor details.17

In fact, inconsistences and contradictions in the testimony of the prosecution witnesses which refer to
minor details cannot destroy the credibility of the prosecution witnesses.18 And where the prosecution
witnesses were able to positively identify the appellants as the authors of the crime and the testimonies
were, on the whole, consistent oil material points, the contradictions become insignificant.19

Nor can appellant successfully assail the testimony of Sgt. Delfin Ronquillo who conducted the
investigation himself and personally examined the scenes of the multiple killings. Credence is accorded
to the testimonies of prosecution witnesses who are law enforcers for it is presumed that they have
regularly performed their duties in the absence of convincing proof to the contrary. Appellants have not
shown that this prosecution witness was motivated by an improper motive other than that of
accomplishing his mission.20

Sgt. Ronquillo established that the reports which were received at the police department of San Fabian,
Pangasinan shortly after the crimes were committed were to the effect that the Doctoleros were
involved. He further testified that when he immediately proceeded to the scene of the crime and
investigated Paciencia Sagun-Diamoy she told him that the accused Doctoleros came with bolos from
the house of Marcial Sagun.21

In fine, Sgt. Ronquillo merely testified objectively on the results of his investigation and the weight to be
accorded to his findings was properly addressed to the trial court.

The lower court held that Conrado Doctolero and his brother, Virgilio, participated as accomplices in the
slaying of the women and the infliction of injuries on the child. We agree with its findings and the
ratiocination of the Solicitor General with its evidentiary substantiation:

Now, there is no question that while the three appellants were still stoning and hurling
challenges at the house of Marcial Sagun, they must have already heard the two women thereat
protesting what they were doing and shouting back at them (pp. 39-41, 97, 119, tsn. Jan. 13,
1971: pp. 144-146, tsn., Jan. 14, 1971), after which all the three appellants went up the house.
Under these facts, it is impossible that both appellants Virgilio Doctolero and Conrado Doctolero
did not know or were not aware when their brother Ludovico was brutally killing the two
women Lolita de Guzman-Oviedo and Epifania Escosio and wounding the child Jonathan Oviedo
inside the room of said house. Furthermore, from the nature, number, and locations of the
many wounds sustained by the two women and child (Exhs. A, C, D, and D-1), it could not have
been possible for Ludovico's two brothers Virgilio and Conrado (assuming that they did not go
inside the house) not to hear either the screams of pain of their brother's victims or the contact
between the blade of his bolo and their bodies when their brother Ludovico was ruthlessly
hacking them several times. . . . Under these circumstances, it is obvious that appellants
 Conrado Doctolero and Virgilio themselves knew what was going on inside the room of the
house at the time, but they just stood by and did nothing to stop their brother Ludovico
Doctolero from brutally hacking his women victims to death. It is, therefore, reasonable to
believe that the two appellants, Conrado and Virgilio, merely stood by as their brother Ludovico
Doctolero was murdering the two deceased women, ready to lend assistance. Indeed, there is
no question that the presence of these two appellants upstairs in the house of Marcial Sagun
gave their brother Ludovico Doctolero the encouragement and reliance to proceed as he did
proceed, in committing the heinous crimes against two defenseless women and a child.22

We have held that where one goes with the principals, and in staying outside of the house while the
others went inside to rob and kill the victim, the former effectively supplied the criminals with material
and moral aid, making him guilty as an accomplice.23

Appellants contend that the murders occurred as a consequence of a sudden thought or impulse, thus
negating a common criminal design in their minds. This pretension must be rejected since one can be an
accomplice even if he did not know of the actual crime intended by the principal provided he was aware
that it was an illicit act.24

This is a doctrine that dates back to the ruling in U.S. vs. De Jesus25 that where the accomplices therein
consented to help in the commission of forcible abduction, they were responsible for the resulting
homicide even if the purpose of the principal to commit homicide was unknown to the accomplices.

Whatever doubt the court a quo entertained on the criminal responsibility of appellants Conrado and
Virgilio Doctolero did not refer to whether or not they were liable but only with regard to the extent of
their participation. There being ample evidence of their criminal participation, but a doubt exists on the
nature of their liability, the courts should favor the milder form of liability or responsibility which is that
of being mere accomplices,26

no evidence of conspiracy among the appellants having been shown.

The court below, however, erred in the penalty imposed for the physical injuries inflicted on Jonathan
Oviedo. The child required medical attention for fifteen (15) days, hence the liability of appellants
therefor is for less serious physical injuries punished with arresto mayor under Article 265 of the Revised
Penal Code. There being no modifying circumstances, a penalty of twenty (20) days of arresto
menor should be imposed for said offense on appellant Conrado Doctolero as an accomplice.

The death of appellant Virgilio Doctolero during the pendency of this appeal terminated only his criminal
liability but not his civil liability.27

Also, while the death indemnity has been increased to P50,000.00 under current case law, the same
should not apply to Ludovico Doctolero, he having heretofore withdrawn his appeal and the judgment
rendered by the trial court having long since become final and executory with respect to him.

WHEREFORE, the decision of the trial court is MODIFIED and judgment is hereby rendered IMPOSING on
appellant Conrado Doctolero three (3) indeterminate sentences of ten (10) years of prision mayor to
seventeen (17) years and four (4) months of reclusion temporal each for the death of Epifania Escosio,
Lolita de Guzman Oviedo and Marcelo Doctolero, and a penalty of twenty (20) days of arresto menor for
the less serious physical injuries inflicted on Jonathan Oviedo. Appellant Conrado Doctolero and the
estate of Virgilio Doctolero are ORDERED to indemnify, in the sum of P50,000.00 for each set or group of
heirs, the respective heirs of Epifania Escosio, Lolita de Guzman Oviedo and Marcelo Doctolero, and to
pay one-half (1/2) of the costs.

SO ORDERED.

11. People v. De Vera, G.R. No. 128966, 18 August 1999

[G.R. No. 128966. August 18, 1999]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDWIN DE VERA y GARCIA, RODERICK

GARCIA y GALAMGAM, KENNETH FLORENDO and ELMER CASTRO, accused, EDWIN DE
VERA y GARCIA, Appellant.

DECISION

PANGANIBAN, J.:

When is a lookout deemed an accomplice and when a conspirator? What is the distinction between the
two?

Statement of the Case

These are the main questions passed upon by the Court in resolving the present appeal, which assails
the March 12, 1997 Decision[1 of the Regional Trial Court of Quezon City (Branch 57) in Criminal Case
No. Q-92-31323, finding Appellant Edwin De Vera and Accused Roderick Garcia guilty beyond reasonable
doubt of murder and sentencing them to reclusion perpetua.

In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged with murder
Appellant Edwin De Vera, together with Roderick Garcia and two other persons who were subsequently
identified during the trial as Kenneth Florendo and Elmer Castro. The crime was allegedly committed as
follows:

That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring
[and] confederating [with] and helping xxx two (2) other persons, did then and there wilfully, unlawfully
and feloniously with intent to kill, with evident premeditation, treachery and use of superior strength,
attack, assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by
then and there shooting him with the use of a .22 cal. with trade mark Paspar Armas bearing SN-29069
with five (5) pieces of caliber 22 ammo inside, hitting him between his eyes and striking him with the use
of a baseball bat in the mouth, thereby inflicting upon him serious and mortal wounds which were the
direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of the said
Frederick Capulong y Dizon.[2cräläwvirtualibräry
On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the Information to
include the use of a .32 caliber firearm in the killing of Frederick Capulong. The trial court granted the
Motion, and the Amended Information now reads as follows:

That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring
[and] confederating [with] and helping xxx two (2) other persons, did then and there wilfully, unlawfully
and feloniously with intent to kill, with evident premeditation, treachery and use of superior strength,
attack, assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by
then and there shooting him with the use of a .22 cal. with trade mark Paspar Armas bearing SN-29069
with five (5) pieces of caliber 22 ammo inside and a .32 cal. firearm of still undetermined make, hitting
him between his eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting
upon him serious and mortal wounds which were the direct and immediate cause of his untimely death,
to the damage and prejudice of the heirs of the said Frederick Capulong y Dizon.[3cräläwvirtualibräry

On their arraignment, Appellant Edwin De Vera[4 and Roderick Garcia[5 pleaded not guilty. The other
two accused were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter,
the trial court rendered the assailed Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA y GARCIA and
RODERICK GARCIA y GALAMGAM guilty beyond reasonable doubt of the crime of MURDER and they are
hereby accordingly sentenced to suffer reclusion perpetua, including all its accessory penalties; to
indemnify the heirs of Frederick Capulong y Dizon, as follows:

a) P50,000.00, as death indemnity;

b) P211,670.00, as compensatory damages;

c) P600,000.00, as indemnification for loss of earning capacity;

d) P500,000.00, as moral damages;

e) Interest at the legal rate on a) and b), hereof from the filing of the information until full payment; and,

f) Costs of suit.[6cräläwvirtualibräry

Only Edwin De Vera filed a Notice of Appeal.[7

The Facts

Version of the Prosecution

In its Brief,[8 the Office of the Solicitor General presented the following narration of
facts:[9cräläwvirtualibräry

As earlier stated, the prosecution presented an eyewitness in the person of Bernardino Cacao, a resident
of Denver Loop Street, Filinvest II, Quezon City before he moved to No. 58 Elisa Street, Caloocan City. He
was residing at Filinvest II, together with his wife and children, at the time of the incident on June 28,
1992 in the house owned by David Lim. He was then employed at a Kodak branch in Caloocan City, while
his wife served as secretary of the homeowners association.

About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the witness saw a car
passing by, driven by victim Frederick Capulong together with four (4) other passengers. He knew the
victim by name who was a resident of the subdivision. He recognized and identified two of the
passengers as Kenneth Florendo and Roderick Garcia, both familiar in the subdivision.

Cacao did not at first notice anything unusual inside the car while it passed by him, but then he heard
unintelligible voices coming from the car as it was cruising around Denver Loop Street, a circular road
whose entrance and exit were through the same point (ibid, p. 12). His curiosity taking [the] better part
of him, Cacao walked to the opposite side of the road from where he saw the car already parked.
Moments later, he saw the victim dragged out of the car by Florendo and brought to a grassy place.
Florendo was holding a gun (ibid, p. 13). Upon reaching the grassy spot, Florendo aimed and fired the
gun at the victim, hitting him between the eyes. After the shooting, Florendo and his companions fled in
different directions.

When he submitted a sworn statement to the investigating prosecutor, Cacao attached a sketch of the
crime scene prepared by police officers, indicating therein his relative position at the time of the
incident. While testifying in court, Cacao identified Garcia and pointed to appellant as among the
companions of Florendo.

Ten minutes later, or about 2:40 in the afternoon, the desk officer of the Investigation Division, Station
5, Central Police District, Quezon City received a report about the shooting incident from a security
guard of the subdivision. The officer immediately dispatched a team to Filinvest II, composed of PO2
Armando Garcia, PO3 Armando Junio, and PO3 Jovencio Villacorte, to investigate and gather evidence
(TSN, p. 5, September 13, 1993). A security guard guided the team to the corner of Denver and Doa
Justina Streets, site of the shooting, where they discovered blood stains and damaged grass (ibid, p. 6).
The guard informed them that the victim was rushed to the East Avenue Medical Center by other
security guards. The policemen then found a color red sports car with plate no. NBZ 869, with engine
still running and its doors opened. They recovered inside the car several class cards and a license
belonging to one Ric Capulong, who was later identified as Frederick Capulong.

The policemen went around the subdivision to look for possible suspects. They came upon a person
wearing muddied maong pants and white t-shirt standing and walking around near the clubhouse of the
subdivision. When asked his name, the person identified himself as Edwin de Vera, herein appellant.
Explaining the mud stains on his pants, appellant declared that he was a victim of a hold-up. Suspicious
[of] his conduct, the policemen brought appellant to Station 5 and turned him over to the desk officer
for investigation.

Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989, was assigned to
investigate the shooting of Frederick Capulong. He was assisted by SPO4 Pablito Selvido, SPO2 Armando
Rivera, SPO3 Jovencio Villacorte, SPO3 Rolando Gacute, SPO3 Danilo Castro and other police officers.

Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue Medical Center
where he saw the victim lying inside the intensive care unit receiving medical treatment. The victim was
unconscious. After conferring with the victims parents and relatives, SPO3 Guspid returned to Station 5.
On his arrival, the desk officer referred appellant to him for questioning. He was told that appellant was
picked up near the crime scene acting suspiciously. When appellant was asked about his participation in
the shooting, he was reluctant at first to talk, but later relented after SPO3 Guspid told him that his
conscience would bother him less if he would tell the truth.

Without any hesitation, appellant admitted being [with the] group which perpetrated the crime, and
implicated Roderick Garcia. He was then persuaded to accompany a group of policemen to the
residence of Garcia, which turned out to be at Doa Justina Street, Filinvest II Subdivision. Finding Garcia
at home, SPO3 Guspid informed him that he was implicated by appellant [in] the crime. He was then
invited to the station to shed light [on] the incident. Garcia consented.

At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the interview, Garcia
revealed the place where he hid a .22 caliber gun, black t-shirt and black cap. According to Garcia,
Florendo asked them to wear black t-shirts. With the revelation, SPO3 Guspid, SPO2 Rivera, SPO3
Gacute and SPO3 Castro, together with the suspects, went back to the subdivision and proceeded to a
grassy portion near the boundary of Filinvest II and San Mateo, Rizal. The place was near a creek and
about 50 meters away from the residence of Garcia (TSN, pp. 9-14, September 30, 1993). Truly, the
policemen recovered a .22 caliber revolver, black t-shirt and black cap (TSN, pp. 12-13, August 24, 1993).
While there, SPO3 Guspid and SPO2 Rivera prepared a sketch of the crime scene to reflect the
explanations and answers given by appellant and Garcia in response to their questions. As identifying
marks, SPO3 Gacute placed his initials OG (acronym for his first name and family name) between the
handle and cylinder of the gun, and on the neck of the t-shirt, as well as in the inner lining of the black
cap.

From the crime site, the policemen and the suspects returned to Station 5 where SPO3 Guspid asked
them if they were willing to give their written statements, to which they assented. Consequently, they
were brought to the Integrated Bar of the Philippines, Quezon City Chapter, at Malakas Street, Diliman,
Quezon City. They were then introduced to Atty. Confesor Sansano, the [c]hairman of the Free Legal Aid
of the IBP. Also, present at that time were appellants relatives, including his mother and sisters, and
other lawyers of the IBP.

SPO3 Guspid inquired from them if they would agree to be assisted by Atty. Sansano, a competent
lawyer. They replied in the affirmative. Thereafter, the two conferred with Atty. Sansano.

Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the suspects [i]n his
office, he requested the policemen, as a matter of policy, to step outside the building in order to assure
that no pressure would be exerted on the suspects even by their mere presence (TSN, p. 6, November 6,
1996). After they left, Atty. Sansano interviewed the suspects for about twenty minutes, informing them
of their rights under the constitution and inquiring from them if they indeed wanted to give voluntary
statements. To the query, the suspects answered positively. They also affirmed their earlier declaration
that they were willing to be assisted by the IBP (ibid, pp. 8-9). He further advised them of their right
during the investigation to answer or not to answer the questions which they thought would incriminate
them, but they retorted that they fully understood their right.

Satisfied that they were not coerced or threatened to give their statements, Atty. Sansano requested
the suspects to show their upper bodies to enable him to determine any telltale signs of torture or
bodily harm. Finding no such signs, he then summoned the policemen to re-enter the building. The
investigators readied two typewriters and each suspect was assigned to an investigator. He served as
the lawyer of the suspects, cautioning them against answering questions that they did not understand,
and to seek xxx a clarification, if needed.

According to Atty. Sansano, the interrogation took place in his office, a single separate room from where
his five staff members were visible. He sat between the two tables used by the investigators for typing
the questions and answers, involving himself from beginning to end of the investigation until the signing
of the statements. He never left the office to attend to anything else, consistent with [the] standing
policy of the IBP to properly safeguard the rights of suspects during investigation.

He recalled that the investigators first typed the headings of the statements, then informed the suspects
before starting the investigation about their rights under the constitution, specifically, the right of the
suspects to have a lawyer of their own choice; if not, the police would provide them with one who
would assist them; that they could answer or refuse to answer the questions. The investigators also
asked him if he was willing to serve as counsel of the suspects. They also asked the suspects if they were
willing to accept him as their counsel. They agreed expressly by saying: Oho.

SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They conducted the
question and answer investigation in Pilipino. The statement of appellant was marked as Exhibit O and
that of Garcia was marked as Exhibit N. The statements were signed by the suspects and Atty. Sansano.

For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking the statements of the
suspects (TSN, p. 4, June 29, 1993). He took the statement of appellant in the presence of Atty. Sansano.
Before proceeding, he reminded appellant of the constitutional warnings, consisting of four (4)
questions under the heading Paunawa, to which the latter gave positive answers. The statement was
signed by appellant and Atty. Sansano. After taking down the statement, he turned over appellant to
SPO3 Guspid.

Following the investigation, the policemen brought the suspects to the Philippine National Police Crime
Laboratory for paraffin testing. The result: both hands of Edwin de Vera y Garcia @ Boy/Bong gave
positive results [in] the test for gunpowder nitrates while both hands of Roderick Garcia y Galamgam @
Deo gave negative result [in] the test for gunpowder nitrates.

After coming from the crime laboratory, SPO3 Guspid contacted the mother of the victim to get her own
statement. Next, he obtained a death certificate and prepared a referral to the Quezon City Prosecution
Office which was signed by Senior Inspector Ernesto Collado, Chief of the Station Investigation Division.
During the inquest, the prosecutor asked the suspects some clarificatory questions.

Surveillance and follow-up operations were conducted against Florendo and his other companion, Elmer
Castro. However, the two were never arrested and brought to trial.

Version of the Defense

Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who had shot the
victim. He avers that he merely accompanied to Filinvest the other accused and Florendo, who was his
friend, upon the latters request. A few hours after the shooting incident, appellant was picked up by the
police, who subsequently tortured and coerced him into signing his Statement regarding the incident.
The trial court summarized appellants evidence in this wise:[10cräläwvirtualibräry
Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were already close friends for
about a year, sometimes sleeping in the latters house at No 106 Kamias Road, Quezon City. His own
residence at the time was at No. 7 Bignay Street, Project 2, Quezon City. That was also the address of
Elmer Castro, his and Kenneths friend.

Edwin had slept in Kenneths house on Kamias Road from June 6 to June 8, 1992 and went home at 7:00
am of June 8th. Later at around 10:30 am, Kenneth passed by Edwins house to invite him back to [the
formers] house that morning and to bring Elmer along. Kenneth mentioned that he, his girlfriend, and
Deo, who were then with him, would be going somewhere first. Deo, or Roderick Garcia, was another
friend of Kenneths.

Edwin and Elmer later went to and arrived at Kenneths house at 11:00 am. Kenneth, his girlfriend, and
Deo were already taking lunch, and invited the two to lunch. After lunch, Kenneth asked Edwin to go
with him to Filinvest without telling why. It was Deo who mentioned to Edwin that Kenneth was going to
see a friend. Edwin was not aware if Kenneth had also asked the others to go with him to Filinvest, but
the four of them Kenneth, Edwin, Elmer, and Deo later proceeded to Filinvest [i]n Kenneths car. Edwin
sat at the back seat. The time was past 12:00 noon.

Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the four of them
alighted in front of the house. Edwin did not know whose house it was. Kenneth and Elmer told Edwin
and Deo to wait near the car because they were going to see a friend. At that point in time, Edwin knew
the person[,] whom Kenneth and Elmer went to see[,] by name, never having met him personally before
then. From his conversation with Deo, Edwin found out that the house was where Deo stayed.

Then, Edwin heard the voices of Kenneth and his friend and they appeared to be arguing (x x x x parang
nagtatalo sila). The voices came from some twenty-two (22) meters away. Not before long, Edwin also
heard a gunshot which came from where Kenneth and Elmer had gone to. He was shocked because he
was not used to hearing gunfire. Frightened, he panicked and ran away from the place. His singular
thought while running was to get out of Filinvest. Deo also ran away.

Edwin denied that either he or Deo carried any firearm on that occasion.

Edwin was arrested by the police at past 2:00 pm when he was already outside of Filinvest subdivision in
front of Batasan. He was brought to Station 5 where four (4) persons in civilian attire tortured him by
forcing him to lie down on a bench, tying his feet together and binding his hands from his back with
handcuffs, and then covering his face with a piece of dirty cloth into which water was poured little by
little into his face and mouth, while one of them sat on his thighs. This maltreatment lasted for about 20
or 25 minutes, because they wanted him to admit something and to name my companions but he
refused to admit or to name anyone. They next took him outside to a mango tree where they repeated
his ordeal for 30 minutes. At one point during the torture, a policeman untied his feet and hands and
poked a gun to his temple, telling him to run as it was his chance to escape, but he did not escape
because he could see that they were merely frightening him.

None of the policemen told him that he could xxx get a lawyer[;] instead, one of them, whose name he
[did] not know, told him that I should listen only to them and not to anyone else. He claimed that he saw
one [of] his tormentors in court, and he identified him as police officer Rivera. Guspid did not participate
in his torture, because he merely took down his statement. His tormentors were not drunk or under the
influence of drugs, but Guspid seemed to be under the influence of drugs when he took his statement
because of his troubled appearance.

Edwin was not advised to inform or call any of his relatives. Before his torture, his request to contact his
relatives or lawyer was turned down. His intimidation continued (x x x x puro pananakot and ginawa nila
sa akin). After his torture at the mango tree, he was returned inside and thrown into a cell, where he
remained until the following day (June 9th). During the night, an inmate named Cesar boxed him once in
the upper body upon instruction of a policeman. He was not given any dinner.

At around noontime of the next day (June 9th), Edwin was taken out of the cell and brought to the IBP
office by police officers Guspid and Selvido. Also with them were Deo Garcia and two other police
officers. At the IBP office, the officers talked with one of the lawyers there, whom Edwin came to know
to be Atty. Sansano only after the lawyer was introduced (present) to him and Deo. That was the first he
met and saw Atty. Sansano.

Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk or not. Edwin
could not make any comment because wala po ako sa sarili ko. Then, Atty. Sansano warned Edwin
substantially that: Alam nyo ba na ang salaysay na ito ay maaring hindi ninyo sumpaan, referring to the
statement taken from Edwin by officers Guspid at around past 8 pm until 9 pm on the day before (June
8, 1992) at the police station. He was not assisted by counsel, and had no relatives present. Guspid
appeared to be like drunk or tipsy, when he took down Edwins statement that night.

At the IBP office, Edwins and Deos statement were taken separately by Guspid and Selvido, respectively.
At the time, Edwin and Deo were about six (6) meters from each other, but he could hear what was
being asked of Deo. Guspid asked the questions and typed both the questions and his answers, which
were given in Tagalog. All the while, Atty. Sansano was inside his office, which was about seven (7)
meters away from where he and Guspid were situated. The office of Atty. Sansano was separated by a
divider, so that he could not see what Atty. Sansano was doing at the time. After the questioning, he
signed a paper which he was not able to read. He did not see Atty. Sansano sign the paper.

xxx

On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng sinumpaang salaysay, which he
swore to before Prosecutor Tobia of Quezon City, for the purpose of recanting his statements given at
the precinct in the evening of June 8, 1992 and at the IBP office on June 9, 1992 on the ground that they
were given under coercion, intimidation, and in violation of his constitutional rights.

Ruling of the Trial Court

Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was indeed Kenneth
Florendo who had actually shot the victim, Roderick Capulong. It convicted appellant as a principal,
however, because the scientific and forensic findings on the criminal incident directly and substantially
confirmed the existence of conspiracy among the four [accused], namely, Kenneth Florendo, Elmer
Castro, Edwin de Vera, and Roderick Garcia.[11

The Issues
Appellant submits for the consideration of this Court the following alleged errors:

THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-WITNESS BERNARDO CACAO HAD
TESTIFIED TO NO CRIMINAL ACT OF APPELLANT;

II

THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE WAS A CONSPIRACY TO KILL THE
VICTIM AND THAT APPELLANT WAS A CO- CONSPIRATOR;

III

THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT O, ALLEGED STATEMENT OF APPELLANT; AND IN NOT
DECLARING THE SAME AS AN INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC MANNER UNDER
WHICH IT WAS EXTRACTED/OBTAINED FROM THE APPELLANT WHICH VIOLATED THE LATTERS
CONSTITUTIONAL RIGHTS;

IV

THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE PROSECUTION HAS NOT PROVED
THE APPELLANTS GUILT BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING THE
APPELLANT.[12cräläwvirtualibräry

In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution evidence, (2)
the admissibility of appellants extrajudicial statement, and (3) the nature of his liability.

The Courts Ruling

The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not as a principal.

First and Third Issues:

Sufficiency of Prosecution Evidence and Appellants Liability

Because the first and the third questions mentioned above are interrelated, they shall be discussed
jointly.

Eyewitness Account

In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De Vera, the trial
court relied mainly on the testimony of Eyewitness Cacao. Specifically, it based its conclusions on the
following facts: appellant was seen with the other accused inside the victims car; the victim was clearly
struck with a blunt object while inside the car, and it was unlikely for Florendo to have done it all by
himself; moreover, it was impossible for De Vera and Garcia to have been unaware of Florendos dark
design on Roderick.
We disagree. It is axiomatic that the prosecution must establish conspiracy beyond reasonable
doubt.[13 In the present case, the bare testimony of Cacao fails to do so.

Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred.
Thereafter, he saw Florendo drag out of the vehicle an apparently disabled Capulong and shoot the
victim in the head moments later.

Cacaos testimony contains nothing that could inculpate appellant. Aside from the fact that he was inside
the car, no other act was imputed to him. Mere presence does not amount to conspiracy.[14 Indeed, the
trial court based its finding of conspiracy on mere presumptions, and not on solid facts indubitably
indicating a common design to commit murder. Such suppositions do not constitute proof beyond
reasonable doubt. As the Court has repeatedly stated, criminal conspiracy must be founded on facts, not
on mere surmises or conjectures. Clearly, Cacaos testimony does not establish appellants culpability.

Appellants Extrajudicial Statement

Aside from the testimony of Cacao, the prosecution also presented Appellant De Veras extrajudicial
statement, which established three points.

First, appellant knew of Kenneth Florendos malevolent intention.

T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?

S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang
at napilitan akong sumama.[15cräläwvirtualibräry

Second, appellants companions were armed that day, a fact which revealed the unmistakable plan of the
group.

T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?

S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,] sina Deo at
Elmer ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang baril niya kay Deo
at itong si Elmer ay mayroong nang dalang baseball bat.

Third, he cooperated with the other accused in the commission of the crime by placing himself at a
certain distance from Kenneth and the victim in order to act as a lookout. This is clear from the following
portion of his statement:

S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw ng June 08,
1992 ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil [mayroon] daw po kaming
lakad. Pagkaraan ng ilang oras ay dumating naman itong si Roderick Garcia @ Deo at may sinabi sa
kanya itong si Kenneth at sinabi naman ito sa akin ni Deo na kaysa raw maunahan siya ni Frederick
Sumulong [sic] ay uunahan na raw po niya ito. Umalis po itong si Kenneth na kasama ang kanyang nobya
at itong si Deo, para ihatid ang kanyang [sic] sa hospital at bago sila umalis ay sinabihan ako ni Kenneth
na sunduin ko raw itong si Elmer Castro at magbhihai [magbihis] na rin daw ako at pagdating nila ay xxx
lalakad na raw po kami. Mga ilang oras pa ay sinundo ko na itong si Elmer Castro at pagdating namin sa
bahay nila Kenneth ay naroroon na itong si Kenneth at Deo. Matapos magpalit ng damit itong si Kenneth
ay sumakay na kami sa kanilang kotse at nagtuloy sa kanilang katabing bahay at doon ay kumain kami.
Pagkatapos noon ay umalis na kami at nagtuloy sa F[i]l-Invest. P[a]gdating namin sa isang lugar doon sa
medyo malayo-layo sa bahay nila Deo ay bumaba na itong si Deo at Elmer at sila ay nagpunta doon sa
lugar ng pinagbarilan para kunin ang bayad sa utang ni Fred[er]ick Capulong sa tiyuhin ni
Deo. P[a]gkaraan ng ilang minuto ay sumunod po kami ni Kenn[e]th sa lugar at ako ay naiwan nang
medyo malayo-layo sa lugar upang tignan kung mayroong darating na tao. Samantalang si Kenneth ay
lumapit kina Deo at Frederick at kasunod noon ay nagkaroon ng sagutan itong si Kenneth at Frederick at
nakita kong inaawat ni Deo itong si Kenneth. Hindi nakapagpigil itong si Kenneth at nasipa niya s[i]
Frederick at kasunod noon ay binunot niya ang kanyang baril na kalibre .38 at pinaputukan niya ng isang
beses itong si Frederick na noong tamaan ay natumba sa lupa. Lumapit si Elmer kina Kenneth habang
binabatak ni Kenneth itong si Frederick at kasunod po noon ay lumapit sa akin si Deo at sinabihan ako na
tumakbo na kami. Tumakbo na po kami, pero ako po ay nahuli ng mga security guard ng Subdivision at
itong si Deo ay nahuli naman sa kanilang bahay. Itong sina Kenneth at Elmer ay hindi pa nahuhuli.[16

Appellant an Accomplice, Not a Conspirator

In other words, appellants presence was not innocuous. Knowing that Florendo intended to kill the
victim and that the three co-accused were carrying weapons, he had acted as a lookout to watch for
passersby. He was not an innocent spectator; he was at the locus criminis in order to aid and abet the
commission of the crime. These facts, however, did not make him a conspirator; at most, he was only an
accomplice.

The Revised Penal Code provides that a conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it.[17 To prove conspiracy, the
prosecution must establish the following three requisites: (1) that two or more persons came to an
agreement, (2) that the agreement concerned the commission of a crime, and (3) that the execution of
the felony [was] decided upon.[18 Except in the case of the mastermind of a crime, it must also be
shown that the accused performed an overt act in furtherance of the conspiracy.[19 The Court has held
that in most instances, direct proof of a previous agreement need not be established, for conspiracy
may be deduced from the acts of the accused pointing to a joint purpose, concerted action and
community of interest.[20cräläwvirtualibräry

On the other hand, the Revised Penal Code defines accomplices as those persons who, not being
included in Article 17,[21 cooperate in the execution of the offense by previous or simultaneous
acts.[22 The Court has held that an accomplice is one who knows the criminal design of the principal and
cooperates knowingly or intentionally therewith by an act which, even if not rendered, the crime would
be committed just the same.[23 To hold a person liable as an accomplice, two elements must be
present: (1) the community of criminal design; that is, knowing the criminal design of the principal by
direct participation, he concurs with the latter in his purpose; and (2) the performance of previous or
simultaneous acts that are not indispensable to the commission of the crime.[24cräläwvirtualibräry

The distinction between the two concepts needs to be underscored, in view of its effect on appellants
penalty. Once conspiracy is proven, the liability is collective and not individual. The act of one of them is
deemed the act of all.[25 In the case of an accomplice, the liability is one degree lower than that of a
principal.
Conspirators and accomplices have one thing in common: they know and agree with the criminal design.
Conspirators, however, know the criminal intention because they themselves have decided upon such
course of action. Accomplices come to know about it after the principals have reached the decision, and
only then do they agree to cooperate in its execution. Conspirators decide that a crime should be
committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be
committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the
authors of a crime; accomplices are merely their instruments who perform acts not essential to the
perpetration of the offense.

Thus, in People v. Castro,[26 the Court convicted Rufino Cinco, together with two others, as a principal,
although he had acted merely as a lookout. The Court held that their concerted action in going armed
and together to their victims house, and there, while one stayed as a lookout, the other two entered
and shot the mayor and his wife, leaving again together afterwards, admits no other rational
explanation but conspiracy. It may be noted further that Cinco executed a Sworn Statement that the
three of them, together with some others, had planned to kill the victim on the promise of a P5,000
reward.

In People v. Tawat et al.,[27 the lookout, Nestor Rojo, was convicted as a principal for conspiring with
two others. The Court ruled that the conspiracy was shown by their conduct before, during and after the
commission of the crime. The Court also noted that, upon their arrest, they disclosed that they had
intended to rob the victims store and that they did so in accordance with their plan. In that case, it was
clear that all three of them, including the lookout, were the authors of the crime.

In People v. Loreno,[28 the Supreme Court convicted all the accused as principals because they had
acted in band. In acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators,
and he gave his companions effective means and encouragement to commit the crime of robbery and
rape.

Upon the other hand, in People v. Corbes,[29 the Court noted that Manuel Vergel knew of the criminal
design to commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from
the crime scene. In convicting him as an accomplice and not as a conspirator, the Court observed that he
was merely approached by one of the robbers who was tasked to look for a getaway vehicle. He was not
with the robbers when they resolved to commit a robbery. When his services were requested, the
decision to commit the crime had already been made.

In People v. Tatlonghari,[30 the Court was asked to resolve the responsibility of some appellants who
knowingly aid[ed] the actual killers by casting stones at the victim, and distracting his attention. The
Court ruled that they were accomplices and not co-conspirators, [i]n the absence of clear proof that the
killing was in fact envisaged by them.

In People v. Suarez et al.,[31 Wilfredo Lara merely introduced the gang of Reyes to Suarez who intended
to perpetrate the crime with the help of the said group. In ruling that he was merely an accomplice, the
Court noted that there was no evidence showing that he took part in the planning or execution of the
crime, or any proof indicating that he profited from the fruits of the crime, or of acts indicative of
confederacy on his part.
In People v. Balili,[32 the Court convicted appellant as an accomplice, holding that in going with them,
knowing their criminal intention, and in staying outside of the house with them while the others went
inside the store to rob and kill, [he] effectively supplied the criminals with material and moral aid,
making him guilty as an accompliance. The Court noted that there was no evidence that he had
conspired with the malefactors, nor that he actually participated in the commission of the crime.

In People v. Doble,[33 the Court held that Cresencio Doble did not become a conspirator when he looked
for a banca that was eventually used by the robbers. Ruled the Court: Neither would it appear that Joe
Intsik wanted to draft Crescencio into his band of malefactors that would commit the robbery more than
just asking his help to look for a banca. Joe Intsik had enough men, all with arms and weapons to
perpetrate the crime, the commission of which needed planning and men to execute the plan with full
mutual confidence of each other, which [was] not shown with respect to appellants by the way they
were asked to look and provide for a banca just a few hours before the actual robbery.

In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill Capulong at the
time, and he cooperated with the latter. But he himself did not participate in the decision to kill
Capulong; that decision was made by Florendo and the others. He joined them that afternoon after the
decision to kill had already been agreed upon; he was there because nagkahiyaan na. This is clear from
his statement, which we quote again for the sake of clarity:

T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?

S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang
at napilitan akong sumama.[34cräläwvirtualibräry

Significantly, the plan to kill could have been accomplished without him. It should be noted further that
he alone was unarmed that afternoon. Florendo and Garcia had guns, and Castro had a baseball bat.

In any event, the prosecution evidence has not established that appellant was part of the conspiracy to
kill the victim. His participation, as culled from his own Statement, was made, after the decision to kill
was already a fait accompli. Thus, in several cases, the Court has held:

[L]ack of complete evidence of conspiracy, that creates the doubt whether they had acted as principals
or accomplices in the perpetration of the offense, impels this Court to resolve in their favor the
question, by holding x x x that they were guilty of the milder form of responsibility, i.e., guilty as mere
accomplices.[35

Second Issue:

Admissibility of Extrajudicial Statement

Extrajudicial confessions must conform to constitutional requirements. Section 12, Article III of the
Constitution, 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.

xxx

(3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in
evidence against him.

If the confession meets these requirements, it is subsequently tested for voluntariness, i.e., if it was
given freely -- without coercion, intimidation, inducement, or false promises; and credibility, i.e., if it was
consistent with the normal experience of mankind. [36cräläwvirtualibräry

Appellant claims that his extrajudicial statement was inadmissible, because it was not made in the
presence of counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid Committee
purportedly assisted him and his co-accused in the execution of their extrajudicial Statements, appellant
asserts that the lawyer was in his office, not with them, at the time. Appellant adds that he was
tortured.

Appellants claims must be rejected. Atty. Sansano testified that he did not leave them at any time.

Q: You were involved in the interrogation from the very start?

A: Yes, from the beginning to the end of the interview until the boys signed their statements.

Q: Did you recall having at any time left your office to attend to some official matters?

A: I never left the office to attend to anything.

Q: Is that the usual manner by which you assist persons referred to you by the police insofar as custodial
investigation is concerned?

A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of the
accused or suspects are properly [protected] during the course of the entire
interrogation.[37cräläwvirtualibräry

In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera, and Garcia
and interviewed the two to make sure that they understood what they were doing.

Q: What was your purpose in asking the police officers to leave the room?

A: My purpose in asking the police officers to step out of the building was to assure myself that no
pressure could be exerted on the two boys by the presence of the police officers during my personal
interview. Before we allow any police officers to take the statements of people brought before us[,] we
see to it [that] we interview the persons personally out of hearing and sight of any police officer.

Q: After the police officers left the room, completely left the room[,] you were able to interview the two
accused namely Mr. de Vera and Mr. Garcia?
A: Yes, I spent about 15 to 20 minutes interviewing the boys.

Q: What was the nature of your initial interview with these two accused?

A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own
statements to the police?

Q: And what did they say?

A: They said yes, sir.

Q: What was your reaction to that?

A: Routinely[,] I informed them about their rights under the constitution.

xxx

Q: Having obtained their answers, what next transpired?

A: After telling them the statements they may give to the police could be used against them for a [sic] in
any court of the Phil., I was satisfied that nobody coerced them, that they were never threatened by
anybody much less by the police officers to give these statements. Casually I asked the two boys to raise
their upper clothes.

xxx

Q: What was your purpose in requiring these persons to show you or remove their upper clothing?

A: I wanted to assure myself that there were no telltale signs of torture or bodily harm committed on
the[m] prior to their [being brought] to the office. In spite of their [personal] assurances xxx, verbal
assurance that they were never hurt.[38cräläwvirtualibräry

The right to counsel is enshrined in the Constitution in order to address, among others, the use of duress
and undue influence in the execution of extrajudicial confessions.[39 In the present case, the Court is
satisfied that Atty. Sansano sufficiently fulfilled the objective of this constitutional mandate. Moreover,
appellants allegations of torture must be disregarded for being unsubstantiated. To hold otherwise is to
facilitate the retraction of solemnly made statements at the mere allegation of torture, without any
proof whatsoever.

When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence
of a high order, because of the strong presumption that no person of normal mind would deliberately
and knowingly confess to a crime unless prompted by truth and conscience.[40 The defense has the
burden of proving that it was extracted by means of force, duress or promise of reward.[41 Appellant
failed to overcome the overwhelming prosecution evidence to the contrary.

Section 3, Rule 133 of the Rules of Court, provides that [a]n extrajudicial confession made by an accused
shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. In the
present case, the prosecution presented other evidence to prove the two elements of corpus delicti: (a)
a certain result has been proven for example, a man has died; and (b) some person is criminally
responsible.[42 It is indubitable that a crime has been committed, and that the other pieces of
prosecution evidence clearly show that appellant had conspired with the other accused to commit the
crime. He himself does not deny that he was at the crime scene. In fact, he was seen by the prosecution
eyewitness in the company of the gunman. Furthermore, Atty. Sansano and the police officers testified
to the voluntariness of his confession. It must be stressed that the aforementioned rule merely requires
that there should be some other evidence tending to show the commission of the crime apart from the
confession. [43

Criminal and Civil Liability

In ruling that the crime committed was murder, the trial court found that the killing was attended by
treachery, evident premeditation and abuse of superior strength. One of these was enough to qualify
the crime as murder; the two others constituted generic aggravating circumstances. The lower court
explained that the evidence established evident premeditation, for Florendos group acted with
deliberate forethought and tenacious persistence in the accomplishment of the criminal design.
Treachery was also proven, because the attack was planned and performed in such a way as to
guarantee the execution of the criminal design without risk to the group. There was also abuse of
superior strength, because the attackers took advantage of their superiority in numbers and weapons.

We disagree with the court a quo in appreciating two generic aggravating circumstances, because
treachery absorbs abuse of superior strength.[44 Hence, there is only one generic aggravating
circumstance, not two. Notwithstanding the presence of a generic aggravating circumstance, we cannot
impose the death penalty, because the crime was committed before the effectivity of the Death Penalty
Law.

In the present case, the penalty of appellant as an accomplice is one degree lower than that of a
principal, which in murder cases is reclusion temporal in its maximum period to death. He is also entitled
to the benefits of the Indeterminate Sentence Law.

We sustain the trial courts grant of P50,000 as indemnity ex delicto, which may be awarded without
need of proof other than the commission of the crime. The award of P211,670 as compensatory
damages was duly supported by evidence. Based on the evidence presented, moral damages is also
warranted, but only in the amount of P50,000, not P500,000 as fixed by the trial court. Furthermore, we
affirm the payment of interest.[45 However, the grant of P600,000 for loss of earning capacity lacks
factual basis. Such indemnification partakes of the nature of actual damages, which must be duly
proven.[46 In this case, the trial court merely presumed the amount of Capulongs earnings. Since the
prosecution did not present evidence of the current income of the deceased, the indemnity for lost
earnings must be rejected.

WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera is CONVICTEDas an

accomplice, not as a principal, in the crime of murder. He is sentenced to an indeterminate prison term
of 8 years and 1 day of prision mayor as minimum, to 14 years 8 months and 1 day of reclusion
temporal as maximum. We AFFIRMthe awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as
compensatory damages and (c) interest of six percent per annum on these two amounts. The award of
moral damages is however REDUCED to P50,000 and the award for the loss of earning capacity
is DELETED. No pronouncement as to costs.
SO ORDERED.

12. Garces v. People, G.R. No. 173858, 17 July 2007

G.R. No. 173858 July 17, 2007

ERNESTO GARCES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

YNARES-SANTIAGO, J.:

This Petition for Review on Certiorari assails the Decision1 dated January 31, 2006 of the Court of
Appeals which affirmed with modification the Judgment2 rendered by Branch 1 of the Regional Trial
Court of Bangued, Abra, finding petitioner Ernesto Garces guilty as an accessory to the crime of Forcible
Abduction with Rape. Also assailed is the Resolution3 dated July 27, 2006 denying petitioner’s motion for
reconsideration.

In an Information dated December 10, 1992, Rosendo Pacursa, Senando Garces, Antonio Pira, Jr.,
Aurelio Pira, and petitioner Ernesto Garces, were charged with Forcible Abduction with Rape committed
as follows:

That on or about the 2nd day of August, 1992, in the evening, at x x x, Province of Abra, Philippines and
within the jurisdiction of this Honorable Court, the said accused, conspiring, confederating and mutually
helping one another, with criminal and carnal intent, with lewd design and by means of force, accused
Rosendo Pacursa, did, then and there, willfully, unlawfully and feloniously, after covering her mouth,
forcibly abduct, pull and take away one AAA while walking to the church to the tobacco flue-curing barn
and while inside the barn lie and succeeded in having sexual intercourse and carnal knowledge of the
offended party; that accused Ernesto Garces later on covered the mouth of AAA and take her out of the
barn; that accused Senando Garces, Antonio Pira, Jr. and Aurelio Pira stand guard outside the barn while
Rosendo Pacursa is raping AAA; to the damage and prejudice of the offended party.

CONTRARY TO LAW with the aggravating circumstances of: (1) uninhabited place, and (2)
nighttime.4 (Emphasis supplied)

All the accused, except Senando Garces who is still at large, pleaded not guilty.

The prosecution’s version of the incident is as follows:

On August 2, 1992, between 8:00 and 9:00 o’clock in the evening, AAA was on her way to the chapel
when the five accused suddenly appeared and approached her. Rosendo Pacursa covered her mouth
with his hands and told her not to shout or she will be killed. He then brought her inside a nearby
tobacco barn while his four companions stood guard outside.5
Inside the barn, Pacursa started kissing AAA. Private complainant fought back but to no avail.
Thereafter, Pacursa succeeded in having carnal knowledge of her. After a while, they heard people
shouting and calling the name of AAA. At this point, petitioner Ernesto Garces entered the barn, covered
AAA’s mouth, then dragged her outside. He also threatened to kill her if she reports the incident.6

Upon reaching the house of Florentino Garces, petitioner released AAA. Shortly afterwards, AAA’s
relatives found her crying, wearing only one slipper and her hair was disheveled. They brought her home
but when asked what happened, AAA could not answer because she was in a state of shock. After a
while, she was able to recount the incident.7

Rosendo Pacursa denied that he raped the victim, while his co-accused presented alibis as their defense.

Pacursa testified that he and AAA were sweethearts for almost a year prior to the incident. On the night
of August 2, 1992, he was on his way to the house of Antonio Pira, Jr. to watch a televised basketball
game when he saw AAA. The latter allegedly wanted to have a talk with him so he led her to the tobacco
barn about 15 meters away, so that no one might see them. They were alone by the door of the barn
talking, embracing and kissing. They only parted ways when he saw the relatives of AAA. He denied
having sexual intercourse with her. After the incident, he received a letter8 from AAA asking him to
elope.9

On the other hand, petitioner, Antonio Pira, Jr., and Aurelio Pira, testified that they were watching a
televised basketball game at the house of Antonio Pira, Jr. at the time the alleged rape transpired. They
denied seeing Pacursa that night.10

After trial on the merits, the trial court rendered its decision finding Pacursa guilty of Forcible Abduction
with Rape while petitioner Garces was found guilty as an accessory to the crime. Antonio Pira, Jr. and
Aurelio Pira were acquitted for insufficiency of evidence.11

The dispositive portion of the decision reads:

WHEREFORE, PREMISES CONSIDERED, accused ROSENDO PACURSA and ERNESTO GARCES are hereby
found guilty of the crime of Forcible Abduction With Rape punishable under the Revised Penal Code
committed upon the person of AAA. The other accused ANTONIO PIRA, JR. and AURELIO PIRA are
hereby ACQUITTED as accessory for the crime of Forcible Abduction With Rape.

ROSENDO PACURSA, the principal accused in this case is hereby sentenced to one degree lower than
that prescribed by law for the offense, for being 16 years old at the time of the commission of the crime
pursuant to Art. 68 of the Revised Penal Code. Taking into consideration the aggravating circumstances
of uninhabited place and nighttime, he is hereby sentenced to suffer an indeterminate penalty of 11
years of prision mayor as minimum to 18 years of reclusion temporal as maximum.

Ernesto Garces, being an accessory to the commission of the crime is hereby penalized two degrees
lower than that prescribed by law for the offense. Accordingly, he is hereby sentenced to suffer an
indeterminate penalty of 4 years of prision correccional as minimum to 8 years of prision mayor as
maximum.
Both accused are jointly and solidarily liable to pay the victim the amount of ₱50,000.00 as and by way
of actual and moral damages plus the cost of this suit.

SO ORDERED.12

Both Pacursa and petitioner appealed the decision with the Court of Appeals. However, Pacursa
subsequently withdrew his appeal.

On January 31, 2006, the Court of Appeals rendered its Decision affirming with modification the decision
of the trial court, thus:

WHEREFORE, premises considered, the appealed Decision convicting accused ROSENDO PACURSA as
principal and accused-appellant ERNESTO GARCES as accessory of the crime of forcible abduction with
rape is AFFIRMED.

However, accused-appellant Ernesto Garces’ sentence is MODIFIED in that he is to suffer the

indeterminate penalty of imprisonment ranging from FOUR (4) YEARS of prision correccional, as
minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum.

SO ORDERED.13

Petitioner filed a motion for reconsideration but same was denied. Hence, the instant petition for review
on certiorari.

Petitioner claims that no rape was committed and that there is no evidence to show that he covered the
mouth of the complainant when he brought her out of the barn.

The petition lacks merit.

It has been established that Pacursa forcibly took AAA against her will and by use of force and
intimidation, had carnal knowledge of her. The trial court found complainant’s testimony to be credible,
consistent and unwavering even during cross-examination.

Regarding the letter she wrote to Pacursa asking him to elope with her, she explained that she felt
uncertain at that time and was trying to avoid the possible trouble or scandal the incident might bring
upon her,14 which we find plausible. In pursuing the case, she had to transfer to another school because
of the threats of her assailants and their persistence in settling the case. Furthermore, no improper
motive was shown why she would accuse and testify against Pacursa who was her boyfriend, and the
other accused, who are her relatives.15

Prosecution witness Grace Liberto likewise corroborated the testimony of complainant when she
testified that she saw the latter crying, wearing only one slipper, and her hair disheveled,16 immediately
after the incident. The medico-legal findings of Dr. Herminio Venus also showed that there was a
laceration in complainant’s private parts possibly caused by sexual contact.17

Pacursa, however, could not be convicted of the crime of forcible abduction with rape because the
crime committed was only simple rape. Forcible abduction is absorbed in the crime of rape if the real
objective of the accused is to rape the victim.18 Based on the evidence presented, the accused intended
to rape the victim when he took her to the tobacco barn. Hence, forcible abduction is absorbed in the
crime of rape.19

We also note that the trial court failed to make any definitive finding as to the existence of aggravating
circumstances. However, we find that the aggravating circumstances of nighttime and uninhabited place
did not attend the commission of the crime.

Nocturnity is aggravating when it is deliberately sought to prevent the accused from being recognized or
to ensure his unmolested escape.20 The mere fact that the rape was committed at nighttime does not
make nocturnity an aggravating circumstance.21 In the instant case, other than the fact that the crime
was committed at night, there is no other evidence that the peculiar advantage of nighttime was
purposely and deliberately sought by the accused.

The aggravating circumstance of uninhabited place cannot likewise be appreciated in the absence of
evidence that the accused actually sought an isolated place to better execute their purpose.22 The
records do not show that solitude was purposely sought or taken advantage of to facilitate the
commission of the crime.

Although Pacursa has withdrawn his appeal, the Court’s ruling that the crime committed is simple rape
and not forcible abduction with rape, shall apply to him. Section 11 (a), Rule 122 of the Rules of Court
specifically provides that an appeal taken by one or more of several accused shall not affect those who
did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the
latter.

As regards petitioner’s complicity, his defense of alibi cannot prevail over complainant’s positive
identification of her assailants. Denial and alibi are inherently weak defenses and constitute self-serving
negative evidence which can not be accorded greater evidentiary weight than the positive declaration of
credible witnesses.23

For alibi to prosper, the accused must establish by clear and convincing evidence (a) his presence at
another place at the time of the perpetration of the offense and (b) the physical impossibility of his
presence at the scene of the crime.24 Petitioner alleged he was watching television at Aurelio Pira’s
house, which is about 20 meters away from the barn at the time of the incident. However, it will only
take one minute for him to reach the barn from the house.25 Thus, it was not physically impossible for
him to be at the scene of the crime at the time of its commission.

Contrary to petitioner’s contention, there is proof that petitioner covered AAA’s mouth when he
dragged her out of the barn. Complainant executed a sworn statement recounting her harrowing
experience which she identified during her direct examination and offered as Exhibits A, A-1, and A-
226 for the prosecution and admitted by the trial court.27 In her sworn statement, AAA narrated thus:

Q - Will you relate carefully the manner by which Rosendo Pacursa raped you?

A - x x x Then someone came inside the barn, shut-off my mouth, then brought me out and
away southward and when we reach the house of Florentino Garces he released me and as I
walked down the path my uncle Bartolome Florendo was able to light me with his flashlight
 xxxx

Q - Who was that person who later came inside the barn who brought you out shutting-off your
mouth then took you away southward?

A - Ernesto Garces also from our place, sir.

Q - Why, has Rosendo Pacursa other companions?

A - He has, sir. They are Ernesto Garces, Senando Garces, Antonio Pira, Jr. and Aurelio Pira.

Q - What did these companions of Rosendo Pacursa do?

A - They stayed outside the barn but it was Ernesto Garces who brought me out, sir.28

Complainant’s failure to testify during her direct examination that her mouth was covered by petitioner
when she was pulled out of the barn does not preclude resort to her sworn statement to provide the
missing details, since said sworn statement forms part of her testimony. As held in People v. Servano:29

Evidence in criminal cases is not limited to the declarations made in open court; it includes all
documents, affidavits or sworn statements of the witnesses, and other supporting evidence. It
comprehends something more than just the mere testimony of a witness. Thus, when a sworn
statement has been formally offered as evidence, it forms an integral part of the prosecution evidence
which should not be ignored for it complements and completes the testimony on the witness stand. A
sworn statement is a written declaration of facts to which the declarant has sworn before an officer
authorized to administer oaths. This oath vests credibility and trustworthiness on the document. The
fact that a witness fails to reiterate, during trial, the contents of his sworn statement should not affect
his credibility and render the sworn statement useless and insignificant, as long as it is presented as
evidence in open court. This is not to say, however, that the sworn statement should be given more
probative value than the actual testimony. Rather, the sworn statement and the open court declarations
must be evaluated and examined together in toto so that a full and thorough determination of the
merits of the case may be achieved. Giving weight to a witness’ oral testimony during the trial should
not mean being oblivious to the other pieces of available evidence such as the sworn statement. In like
manner, the court cannot give probative value to the sworn statement to the exclusion of the oral
testimony. In every case, the court should review, assess and weigh the totality of the evidence
presented by the parties. It should not confine itself to oral testimony during trial. x x x30

Petitioner also faults the court a quo in finding that he threatened AAA while leading her out of the
barn. He argues that complainant failed to positively identify the person who issued the threats because
she vaguely referred to said person merely as "they".

The contention lacks merit.

The use of the word "they" in referring to the person who threatened complainant is of no moment.
When the threats were issued, both Pacursa and petitioner were inside the barn; thus, it is logical to
conclude that the threats came from both of them.
Petitioner likewise cannot take refuge in the acquittal of Antonio and Aurelio Pira. Both were acquitted
because there was no evidence to show their participation in the crime. Complainant only testified that
she heard their voices which the trial court considered insufficient. However, in the case of petitioner,
complainant positively identified him as one of the companions of Pacursa who remained outside the
barn and who eventually entered upon noting the presence of AAA’s relatives nearby. He thereafter
covered complainant’s mouth and led her out of the barn. All these circumstances demonstrate
petitioner’s complicity.

We do not agree, however, that petitioner should be convicted as an accessory to the crime.

It is a settled rule that an appeal in a criminal proceeding throws the whole case open for review and it
becomes the duty of the Court to correct any error in the appealed judgment, whether it is made the
subject of an assignment of error or not. Such an appeal confers upon the appellate court full
jurisdiction and renders it competent to examine the records, revise the judgment appealed from,
increase the penalty and cite the proper provision of the penal law.31

In finding petitioner guilty as an accessory, the Court of Appeals found that his participation was after or
subsequent to the rape and that his acts were employed as a means of concealing the commission of
the crime and assisting Rosendo to escape.

We find otherwise. The facts show that petitioner participated in the commission of the crime even
before complainant was raped. He was present when Pacursa abducted complainant and when he
brought her to the barn. He positioned himself outside the barn together with the other accused as a
lookout. When he heard the shouts of people looking for complainant, he entered the barn and took
complainant away from Pacursa.

Having known of the criminal design and thereafter acting as a lookout, petitioner is liable as an
accomplice,32 there being insufficient evidence to prove conspiracy,33 and not merely as an accessory. As
defined in the Revised Penal Code, accomplices are those who, not being included in Article 17,
cooperate in the execution of the offense by previous or simultaneous acts.34 The two elements
necessary to hold petitioner liable as an accomplice are present: (1) community of criminal design, that
is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his
purpose; and (2) performance of previous or simultaneous acts that are not indispensable to the
commission of the crime.35

The crime committed in the case at bar is simple rape, the penalty for which under the Revised Penal
Code is reclusion perpetua. Since Pacursa was a minor when the crime was committed, the penalty must
be reduced by one degree, to reclusion temporal.36 Applying the Indeterminate Sentence Law and in the
absence of aggravating and mitigating circumstances, the maximum of the penalty shall be within the
medium range of reclusion temporal, or fourteen (14) years, eight (8) months and one (1) day to
seventeen (17) years and four (4) months. The minimum of the indeterminate penalty shall be within
the range of the penalty next lower in degree, which is prision mayor, ranging from six (6) years and one
(1) day to twelve (12) years.37

With respect to petitioner, the penalty imposed upon accomplices in a consummated crime is the
penalty next lower in degree than that prescribed for the felony.38 Since simple rape is punishable with
reclusion perpetua, the penalty of reclusion temporal should also be imposed on petitioner in its
medium period in the absence of any aggravating or mitigating circumstances. Applying the
Indeterminate Sentence Law, the imposable penalty should range from prision mayor, as minimum,
to reclusion temporal in its medium period, as maximum.

Every person criminally liable for a felony is also civilly liable.39 If there are two or more persons civilly
liable for a felony, as in this case, the court shall determine the amount for which each must
respond40 to be enforced in accordance with Article 110 of the Revised Penal Code. Thus, the amount of
damages to be awarded must be apportioned according to the respective responsibilities of the accused
to be paid by them solidarily within their respective class and subsidiarily for the others.41

Consistent with prevailing jurisprudence, the complainant in rape cases is entitled to an award of
₱50,000.00 as civil indemnity ex delicto and another ₱50,000.00 as moral damages. Civil indemnity ex
delicto is mandatory upon finding of the fact of rape which is distinct from moral damages awarded
upon such finding without need of further proof because it is assumed that a rape victim has actually
suffered moral injuries entitling the victim to such award.42

In determining the civil liability of petitioner, a clarification of the trial court’s decision is necessary. The
dispositive portion of the trial court’s decision held Pacursa and petitioner "jointly and solidarily liable to
pay the victim the amount of ₱50,000.00 as and by way of actual and moral damages plus the cost of
suit." For our purposes, we shall treat the amount of ₱50,000.00 awarded by the trial court as the civil
indemnity ex delicto for which, as an accomplice, petitioner should be solidarily liable with Pacursa only
for one-half of the said amount, or ₱25,000.00, and is subsidiarily liable for the other ₱25,000.00 in case
the principal is found insolvent.43

In addition, complainant must be awarded another ₱50,000.00 as moral damages. However, this
additional award should not apply to Pacursa who has withdrawn his appeal as the same is not favorable
to him.44 Hence, the additional monetary award can only be imposed upon petitioner who pursued the
present appeal.45

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals finding Rosendo Pacursa
guilty as principal by direct participation, and petitioner Ernesto Garces as an accessory, to the crime of
Forcible Abduction with Rape, is MODIFIED. Accused Rosendo Pacursa is found GUILTY beyond
reasonable doubt of the crime of RAPE, and being a minor at the time the crime was committed, is
sentenced to suffer an indeterminate penalty ranging from eight (8) years and one (1) day of prision
mayor, as minimum, to 15 years of reclusion temporal, as maximum. Petitioner Ernesto Garces is found
guilty as an accomplice to the crime of rape, and is also sentenced to suffer an indeterminate penalty
ranging from eight (8) years and one (1) day of prision mayor, as minimum, to 15 years of reclusion
temporal, as maximum.

Rosendo Pacursa and Petitioner Ernesto Garces are ORDERED to pay complainant ₱50,000.00 as civil
indemnity ex delicto. Being an accomplice, petitioner is held solidarily liable with the principal only for
half of the amount or ₱25,000.00 and their subsidiary liability shall be enforced in accordance with
Article 110 of the Revised Penal Code. Petitioner is likewise ordered to pay complainant ₱50,000.00 as
moral damages.

SO ORDERED.
13. People v. Talingdan, G.R. No. L-32126, 6 July 1978, 84 SCRA 19

G.R. No. L-32126 July 6, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NEMESIO TALINGDAN, MAGELLAN TOBIAS, AUGUSTO BERRAS, PEDRO BIDES and TERESA
DOMOGMA, accused-appellants.

PER CURIAM:

Appeal from the conviction for the crime of murder and the sentence of life imprisonment, with
indemnity to the offended party, the heirs of the deceased Bernardo Bagabag, in the amount of
P12,000, rendered by the Court of First Instance of Abra in its Criminal Case No. 686, of all the accused
the namely, Nemesio Talingdan, Magellan Tobias, Augusta Berras, Pedro Bides and Teresa Domogma,
the last being the supposed wife of the deceased, who, because no certificate nor any other proof of
their marriage could be presented by the prosecution, could not be charged with parricide.

Prior to the violent death of Bernardo Bagabag on the night of June 24, 1967, he and appellant Teresa
Domogma and their children, arrived together in their house at Sobosob, Salapadan, Abra, some 100
meters distant from the municipal building of the place. For sometime, however, their relationship had
been strained and beset with troubles, for Teresa had deserted their family home a couple of times and
each time Bernardo took time out to look for her. On two (2) different occasions, appellant Nemesis
Talingdan had visited Teresa in their house while Bernardo was out at work, and during those visits
Teresa had made Corazon, their then 12-year old daughter living with them, go down the house and
leave them. Somehow, Bernardo had gotten wind that illicit relationship was going on between
Talingdan and Teresa, and during a quarrel between him and Teresa, he directly charged the latter that
should she get pregnant, the child would not be his. About a month or so before Bernardo was killed,
Teresa had again left their house and did not come back for a period of more than three (3) weeks, and
Bernardo came to know later that she and Talingdan were seen together in the town of Tayum Abra
during that time; then on Thursday night, just two (2) days before he was gunned down, Bernardo and
Teresa had a violent quarrel; Bernardo slapped Teresa several times; the latter went down the house
and sought the help of the police, and shortly thereafter, accused Talingdan came to the vicinity of
Bernardo's house and called him to come down; but Bernardo ignored him, for accused Talingdan was a
policeman at the time and was armed, so the latter left the place, but not without warning Bernardo
that someday he would kin him. Between 10:00 and 11:00 o'clock the following Friday morning,
Bernardo's daughter, Corazon, who was then in a creek to wash clothes saw her mother, Teresa,
meeting with Talingdan and their co-appellants Magellan Tobias, Augusto Berras and Pedro Bides in a
small hut owned by Bernardo, some 300 to 400 meters away from the latter's house; as she approached
them, she heard one of them say "Could he elude a bullet"; and when accused Teresa Domogma noticed
the presence of her daughter, she shoved her away saying "You tell your father that we will kill him".
Shortly after the sun had set on the following day, a Saturday, June 24, 1967, while the same 12-year old
daughter of Bernardo was cooking food for supper in the kitchen of their house, she saw her mother go
down the house through the stairs and go to the yard where she again met with the other appellants. As
they were barely 3-4 meters from the place where the child was in the "batalan", she heard them
conversing in subdued tones, although she could not discern what they were saying. She was able to
recognize all of them through the light coming from the lamp in the kitchen through the open "batalan"
and she knows them well for they are all residents of Sobosob and she used to see them almost
everytime. She noted that the appellants had long guns at the time. Their meeting did not last long,
after about two (2) minutes Teresa came up the house and proceeded to her room, while the other
appellants went under an avocado tree nearby. As supper was then ready, the child caged her parents
to eat, Bernardo who was in the room adjoining the kitchen did not heed his daughter's call to supper
but continued working on a plow, while Teresa also excused herself by saying she would first put her
small baby to sleep. So Corazon ate supper alone, and as soon as she was through she again called her
parents to eat. This time, she informed her father about the presence of persons downstairs, but
Bernardo paid no heed to what she said. He proceeded to the kitchen and sat himself on the floor near
the door. Corazon stayed nearby watching him. At that moment, he was suddenly fired upon from
below the stairs of the "batalan". The four accused then climbed the stairs of the "batalan" carrying
their long guns and seeing that Bernardo was still alive, Talingdan and Tobias fired at him again. Bides
and Berras did not fire their guns at that precise time, but when Corazon tried to call for help Bides
warned her, saying "You call for help and I will kill you", so she kept silent. The assailants then fled from
the scene, going towards the east.

The first to come to the aid of the family was Corazon's male teacher who lived nearby. Teresa came out
of her "silid" later; she pulled Corazon aside and questioned her, and when Corazon informed her that
she recognized the killers of her father to be her co-appellants herein, she warned her not to reveal the
matter to anyone, threatening to kill her if she ever did so. Still later on, other persons arrived and
helped fix and dress the lifeless body of the victim, Bernardo, autopsy on which was performed in his
own house by the Municipal Health Officer of the place on June 26, 1967, about 36 hours after death;
burial took place on the same day. The victim's brother who came from Manila arrived one day after the
burial followed by their mother who came from La Paz, Abra where she resides. Corazon, who had not
earlier revealed the Identities of the killers of her father because she was afraid of her own mother, was
somehow able to reveal the circumstances surrounding his killing to these immediate relatives of hers,
and the sworn statement she thereafter executed on August 5, 1967 (Exh. B) finally led to the filing of
the information for murder against the herein five (5) appellants.

On the other hand, according to the evidence for the defense: Teresa prior to her marriage with
Bernardo, was a resident of the town of Manabo, Abra. She has a sister in Manila and two (2) brothers in
America who love her dearly, that is why said brothers of hers had been continuously and regularly
sending her monthly $100.00 in checks, starting from the time she was still single up to the time of her
husband's violent death on June 24, 1967, and thereafter. After their marriage, they moved to and
resided in her husband's place in Sallapadan, Abra, bringing with them three (3) carabaos and two (2)
horses, which Bernardo and she used in tilling a parcel of land in said place, separate and distinct from
the parcel of land worked on by Bernardo's parents and their other children. She and Bernardo lived in
their own house which was about 4-5 meters away from the house of her parents-in-law. She loved
Bernardo dearly, they never quarreled, and her husband never maltreated her; although sometimes she
had to talk to Bernardo when he quarrels with his own mother who wanted that Bernardo's earnings be
given to her, (the mother) which Bernardo never did, and at those times, Bernardo would admonish
Teresa "You leave me alone". Her in-laws also hated her because her mother-in-law could not get the
earnings of Bernardo for the support of her other son, Juanito, in his schooling. On his part, Juanito also
disliked her because she did not give him any of the carpentry tools which her brothers in America were
sending over to her. She never left their conjugal home for any long period of time as charged by her
mother-in-law, and if she ever did leave the house to go to other places they were only during those
times when she had to go to Bangued to cash her dollar checks with the PNB branch there, and even on
said trips, she was sometimes accompanied by Bernardo, or if she had to go alone and leaves Sallapadan
in the morning, she rode in a weapons carrier along with merchants going to Bangued in the morning
and always rode back with them to Sallapadan in the afternoon of the same day because the weapons
carrier is owned by a resident of Sallapadan who waits for them. Teresa came to know Talingdan only
when the latter became a policeman in Sallapadan, as whenever any of the carabaos and horses they
brought from Manabo to Sallapadan got lost, she and Bernardo would go and report the matter to the
Mayor who would then refer the matter to his policemen, one of whom is Talingdan, so that they may
help locate the lost animals; Teresa knew Talingdan well because they are neighbors, the latter's home
being only about 250-300 meters away from theirs. But illicit relationship had never existed between
them.

Early in the evening of June 24, 1967, Teresa was in the kitchen of their house cooking their food for
supper. Two of the children, Corazon and Judit, were with her. Her husband, Bernardo, was then in the
adjoining room making a plow. He had to make the plow at that time of the night because at daytime he
worked as a carpenter in the convent. As soon as the food was ready, she and the children moved over
to the adjoining room where Bernardo was to call him for supper, and he then proceeded to the kitchen
to eat. Teresa and the two children were about to follow him to the kitchen when suddenly they heard
more than five (5) or six (6) successive gun shots coming from near their "batalan". They were all so
terrified that they immediately cried for help, albeit she did not know yet at that precise time that her
husband was shot, as she and the children were still in the other room on their way to the kitchen,
about three (3) meters away from Bernardo. But soon Teresa heard her husband crying in pain, and as
soon as she reached him, she took Bernardo into her arms. She did not see the killers of her husband, as
the night was then very dark and it was raining. Bernardo was in her arms when the first group of people
who responded to their cry for help arrived. Among them were the chief of police, some members of
the municipal council and appellant Tobias who even advised Teresa not to carry the lifeless body of
Bernardo to avoid abortion as she was then six (6) months pregnant. The chief of police then conducted
an investigation of the surroundings and he found some empty shells and foot prints on the ground
some meters away from the "batalan". He also found some bullet holes on the southern walls of said
"batalan" and on the nothern wallings of the kitchen. Later, Teresa requested some persons to relay the
information about the death of her husband to her relatives in Manabo, Abra, and they in turn passed
on the news to Bernardo's mother and her family in La Paz, Abra, where they were then residing, as they
have left their house in Sallapadan about two (2) months previous after they lost the land they used to
till there in a case with the natives called Tingians. Two (2) PC soldiers arrived in the afternoon of June
26, 1967, and after Bernardo's remains was autopsied and he was buried under their house, they
conducted an investigation, but she did not give them any information relative to the Identity of the
persons who shot her husband because she did not really see them. Her mother-in-law and a brother-in-
law, Juanita Bagabag, arrived later, the former from the town of La Paz, Abra, and the latter from
Manila, and after the usual nine (9) days mourning was over, they left Sallapadan, taking Teresa's
children under their custody. Teresa suspects that since her mother-in-law and her brother-in-law have
axes to grind against her and they have her daughter, Corazon, under their custody, they had forced the
said child to testify against her. She further declared that her late husband, Bernardo, had enemies
during his lifetime, as he had quarrels with some people over the land they work on.
Furthermore, the defense presented evidence to the effect that: Talingdan was not in Sallapadan at the
time of the killing of Bernardo on June 24, 1967; being a policeman of the place at the time, he was one
of the two (2) policemen who escorted and acted as bodyguard of the Mayor, when the latter attended
the cursillo in Bangued, all of them leaving Sallapadan on June 22 and returning thereto four (4) days
later on June 26, hence, he could not have anything to do with the said killing. On the other hand, Tobias
claimed to be in the house of one Mrs. Bayongan in Sallapadan on the date of said killing, but he was
one of the persons who was called upon by the chief of police of the place to accompany him in answer
to the call for help of the wife of the victim. The other two appellants Bides and Berras also alleged that
they were in the same house of Mrs. Bayongan on that date; they are tillers of the land of said Mrs.
Bayongan and had been staying in her house for a long time. They were sleeping when the chief of
police came that evening and asked Tobias, who was then municipal secretary, to accompany him to the
place of the shooting. They did not join them, but continued sleeping. They never left the said house of
Mrs. Bayongan, which is about 250-300 meters away from the place of the killing, that evening of June
24, 1967.

After carefully weighing the foregoing conflicting evidence of the prosecution and defense, We have no
doubt in Our mind that in that fatal evening of June 24, 1967, appellants Nemesio Talingdan, Magellan
Tobias, Augusto Berras and Pedro Bides, all armed with long firearms and acting inconspiracy with each
other gunned down Bernardo as the latter was sitting by the supper table in their house at Sobosob,
Sallapadan, Abra. They were actually seen committing the offense by the witness Corazon. She was the
one who prepared the food and was watching her father nearby. They were all known to her, for they
were all residents of Sobosob and she used to see them often before that night. Although only Talingdan
and Tobias continued firing at her father after they had climbed the stairs of the "batalan", it was Bides
who threatened her that he would kill her if she called for help. Berras did not fire any shot then. But
even before the four appellants went up the "batalan", they already fired shots from downstairs.

We also fully believe Corazon's testimony that two nights before, or on Thursday, June 22, 1967, the
deceased Bernardo and appellant Teresa had a violent quarrel during which he slapped her several
times. She went to seek the help of the police, and it was appellant Talingdan, a policeman of their
town, who went to the vicinity of their house and challenged her father to come down, but the latter
refused because the former was a policeman and was armed. And so, Talingdan left after shouting to
her father that "If I will find you someday, I will kill you."

We likewise accept as truthful, Corazon's declaration regarding the amorous relationship between her
mother and appellant Talingdan, as already related earlier above. So also her testimony that in the
morning following the quarrel between her father and her mother and the threat made by Talingdan to
the former, between 10:00 and 11:00 o'clock, she saw all the herein four male accused-appellants
meeting with her mother in a small hut some 300 or 400 meters away from their house, near where she
was then washing clothes, and that on said occasion she overheard one of them ask "Could (sic) he
elude a bullet?", We have our doubts, however, as to whether or not her mother did say to her in
shoving her away upon seeing her approach, "You tell your father we will kill him." If it were true that
there was really such a message, it is to be wondered why she never relayed the same to her father,
specially when she again saw the said appellants on the very night in question shortly before the
shooting talking together in subdued tones with her mother and holding long arms. Moreover, it is quite
unnatural that such a warning could have been done in such a manner.

Accordingly, it is Our conclusion from the evidence related above and which We have carefully reviewed
that appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides are guilty of
murder qualified by treachery, as charged, and that they committed the said offense in conspiracy with
each other, with evident premeditation and in the dwelling of the offended party. In other words, two
aggravating circumstances attended the commission of the offense, namely, evident premeditation and
that it was committed in the dwelling of the victim. No mitigating circumstance has been proven.

Appellants insist in their brief that the lone testimony of Corazon suffered from vital contradictions and
inconsistencies and badges of falsehood because of patently unnatural circumstances alleged by her.
We do not agree. As the Solicitor General has well pointed out, the fact that the witness varied on cross-
examination the exact time of some of the occurrences she witnessed, such as, (1) whether it was
before or after Bernardo had began eating when he was shot; (2) whether it was before or after seeing
her mother's meeting with her co-accused in the morning of Friday, June 23, 1967, that she went to
wash clothes; and (3) whether or not the accused were already upstairs or still downstairs when they
first fired their guns, cannot alter the veracity of her having seen appellants in the act of mercilessly and
cold-bloodedly shooting her father to death.

Contrary to the contention of appellants, there was nothing inherently unnatural in the circumstances
related by her. We agree with the following rebuttal of the Solicitor General:

Appellants also attempt to buttress their attack against the credibility of Corazon
Bagabag by pointing out five supposed unnatural declarations in her testimony; First,
she said that her father, appeared unconcerned when she informed him of the presence
of people downstairs. But as correctly observed by the prosecuting fiscal the witness
does not know then "the mentality of her father" (p. 62, t.s.n., hearing of March 29,
1968). Second, Corazon also declared that the accused conversed that Saturday night
preceding the day the crime charged was committed in a lighted place although there
was a place which was unlighted in the same premises. But this only proves that the
accused were too engrossed in their conversation, unmindful of whether the place
where they were talking was lighted or not, and unmindful even of the risk of
recognition. Third, witness declared that Pedro Bides and Augusto Berras did not fire
their guns. Even if these accused did withhold their fire, however, since they were
privies to the same criminal design, would this alter their culpability? Should the witness
Corazon Bagabag be discredited for merely stating an observation on her part which is
not inherently unnatural? Fourth, Corazon also declared that only three bullets from the
guns of the four male accused found their mark on the body of her father. But would
this not merely prove that not all the accused were good shots? And fifth, the witness
declared that her father was still able to talk after he was shot yet Dr. Jose Dalisan
declared that his death was instantaneous It is respectfully submitted, however, that the
doctor's opinion could yield to the positive testimony of Corazon Bagabag in this regard
without in the least affecting the findings of said doctor as regards the cause of the
death of the deceased. As thus viewed, there are no evident badges of falsehood in the
whole breadth and length of Corazon Bagabag's testimony. (Pp. 9-10, People's Brief.)

Why and how Corazon could have concocted her version of the killing of her father, if it were not
basically true, is hardly conceivable, considering she was hardly thirteen (13) years old when she
testified, an age when according to Moore, a child , is, as a rule, but little influenced by the suggestion of
others" because "he has already got some principles, lying is distasteful to him, because he thinks it is
mean, he is no stranger to the sentiment of self- respect, and he never loses an opportunity of being
right in what he affirms." (II Moore on Facts, pp. 1055-1056.) No cogent explanation has been offered
why she would attribute the assault on her father to three other men, aside from Talingdan whom she
knew had relations with her mother, were she merely making-up her account of how he was shot, no
motive for her to do so having been shown.

Demolishing the theory of the accused that such testimony was taught to her by her uncle, His Honor
pointed out that said "testimony, both direct and cross, would show that she was constant, firm and
steady in her answers to questions directed to her." We have Ourselves read said testimony and We are
convinced of the sincerity and truthfulness of the witness. We cannot, therefore, share appellants'
apprehension in their Seventh Assignment of Error that the grave imputation of a mother's infidelity and
her suggested participation in the killing of her husband, would if consistently impressed in the mind of
their child, constitute a vicious poison enough to make the child, right or wrong, a willing instrument in
any scheme to get even with her wicked mother. We feel Corazon was too young to he affected by the
infidelity of her mother in the manner the defense suggests. We are convinced from a reading of her
whole testimony that it could not have been a fabrication. On the whole, it is too consistent for a child
of thirteen years to be able to substantially maintain throughout her stay on the witness stand without
any fatal flaw, in the face of severe and long cross-interrogations, if she had not actually witnessed the
event she had described. We reject the possibility of her having been "brainwashed or coached" to
testify as she did.

The second to the sixth assignments of error in the appeal brief do not merit serious consideration.
Anent these alleged errors, suffice it to say that the following refutations of the Solicitor General are
well taken:

Appellants also decry that the trial court allegedly failed to consider the testimony of Dr.
Dalisan that the distance between the assailants and the deceased could have been 4 to
5 meters when the shots were fired. But the appellants overlook the testimony of
Corazon Bagabag that when the first shot was fired, the gunman was about 3-½ meters
from her father (p. 60, t.s.n., hearing of March 29, 1968), which disproves the theory of
the defense that the killers fired from a stonepile under an avocado tree some 4 to 5
meters away from the deceased's house. Appellants also insist that the Court a
quo ignored the testimonies of defense witness Cpl. Bonifacio Hall and Chief of Police
Rafael Berras on their having found bullet marks on the southern walling of the house of
the deceased, as well as empty cal. 30 carbine shells under the aforementioned avocado
tree. The trial court, however, made the following apt observations on the testimony of
defense witness Cpl. Bonifacio Hall:

This witness stated that we went to the house of the deceased to investigate the crime
after the deceased had already been buried; that he investigated the widow as well as
the surroundings of the house where the deceased was shot. He found empty shells of
carbine under the avocado tree. He stated that the 'batalan' of the house of the
deceased has a siding of about 1-½ meters high and that he saw bullet holes on the top
portion of the wall directly pointing to the open door of the 'batalan' of the house of the
deceased. When the court asked the witness what could have been the position of the
assailant in shooting the deceased, he stated that the assailant might have been
standing. The assailant could not have made a bullet hole on the top portion of the
sidings of the 'batalan' because the 'batalan' is only 1-½ meters high, and further, when
asked as to the level of the ground in relation to the top sidings of the 'batalan,' he
answered that it is in the same level with the ground. If this is true, it is impossible for
 the assailant to make a bullet hole at the top portion sidings of the 'batalan,' hence, the
testimony of this witness who is a PC corporal is of no consequence and without merit.
The court is puzzled to find a PC corporal testifying for the defense in this case, which
case was filed by another PC sergeant belonging to the same unit and assigned in the
same province of Abra (pp. 324- 325, rec.).

As regards the empty shells also found in the vicinity of the shooting, suffice it to state
that no testimony has been presented, expert or otherwise, linking said shells to the
bullets that were fired during the shooting incident. Surmises in this respect surely
would not overcome the positive testimony of Corazon Bagabag that the accused shot
her father as they came up the 'batalan' of their house. (Pp. 11-12, People's Brief.)

At the trial, the four male appellants tried to prove that they were not at the scene of the crime when it
happened. This defense of alibi was duly considered by the trial court, but it was properly brushed aside
as untenable. In their brief, no mention thereof is made, which goes to show that in the mind of the
defense itself,. it cannot be successfully maintained and they do not, therefore, insist on it. Nonetheless,
it would do well for this Court to specifically affirm the apt pertinent ratiocination of His Honor in
reference thereto thus:

This defense, therefore, is alibi which, in the opinion of the court, can not stand firmly in
the face of a positive and unwavering testimony of the prosecution witness who pointed
out to the accused as the authors of the crime. This is so because, first, according to the
three accused — Bides, Tobias and Berras — they were sleeping at 8:00 o'clock that
night in the house of Mrs. Bayongan which is only 250 meters away from the scene of
the crime. Granting, for the sake of argument, but without admitting, that they were
already sleeping at 8:00 o'clock in the house of Mrs. Bayongan, Corazon Bagabag clearly
stated that her father was gunned down at sunset which is approximately between 6:00
and 6:30 in the evening, hence, the accused Tobias, Berras and Bides could have
committed the crime and went home to sleep in the house of Mrs. Bayongan after the
commission of the crime. According to Pedro Bides, the house of Mrs. Bayongan is only
250 meters away from the house of the victim. Second, the three accused have failed
miserably to present the testimony of Mrs. Bayongan, the owner of the house where
they slept that night to corroborate or bolster their defense of alibi. (Pp. 27A-28A,
Annex of Appellants' Brief.)

xxx xxx xxx

Nemesio Talingdan, alias Oming, the last of the accused, also in his defense of alibi,
stated that on June 22, 1967, he accompanied Mayor Gregorio Banawa of Sallapadan to
Bangued, together with policeman Cresencio Martinez for the purpose of attending a
cursillo in Bangued They started in Sallapadan in the early morning of June 22, 1967 and
arrived in Bangued the same day. According to him, he went to accompany the mayor to
the cursillo house near the Bangued Cathedral and after conducting the mayor to the
cursillo house, he went to board in the house of the cousin of Mayor Banawa near the
Filoil Station at Bangued, Abra. From that time, he never saw the mayor until after they
went home to Sallapadan on June 26th.
 This kind of alibi could not gain much weight because he could have returned anytime
on the evening of June 22 or anytime before the commission of the offense to
Sallapadan and commit the crime on the 24th at sunset, then returned to Bangued, Abra
to fetch the mayor and bring him back to Sallapadan on the 26th.

The irony of this defense of alibi is that the mayor who was alleged to have been
accompanied by witness-accused is still living and very much alive. As a matter of fact,
Mayor Gregorio Banawa is still the mayor of Sallapadan, Abra, and also policeman
Cresencio Martinez, another policeman who accompanied the mayor to Bangued, is also
still living and still a policeman of Sallapadan. Why were not the mayor and the
policeman presented to corroborate or deny the testimony of Nemesio Talingdan?

Conrado B. Venus, Municipal Judge of Penarrubia Abra, and a member of the Cursillo
Movement, was presented as rebuttal witness for the prosecution. On the witness
stand, he stated that he belongs to Cursillo No. 3 of the Parish of Bangued, Abra, and
said cursillo was held on October 20 to 23, 1966, at the St. Joseph Seminary in Galicia,
Pidigan Abra, and not on June 23 to 26, 1967. As a matter of fact, Mayor Banawa of
Sallapadan also attended the cursillo held on October 20 to 23, 1966, as could be seen in
his 'Guide Book' where the signature of Gregorio Banawa appears because they both
attended Cursillo No. 3 of the Parish of Bangued.

(To) this testimony of the rebuttal witness belies partly, if not in full, the testimony of
accused Nemesio Talingdan. (Pp. 29A-30A, Annex of Appellants' Brief.)

Coming now to the particular case of appellant Teresa Domogma, as to whom the Solicitor General has
submitted a recommendation of acquittal, We find that she is not as wholly innocent in law as she
appears to the Counsel of the People. It is contended that there is no evidence proving that she actually
joined in the conspiracy to kill her husband because there is no showing of 'actual cooperation" on her
part with her co-appellants in their culpable acts that led to his death. If at all, what is apparent, it is
claimed, is "mere cognizance, acquiescence or approval" thereof on her part, which it is argued is less
than what is required for her conviction as a conspirator per People vs. Mahlon, 99 Phil. 1068. We do not
see it exactly that way.

True it is that the proof of her direct participation in the conspiracy is not beyond reasonable doubt, for
which reason, sue cannot have the same liability as her co-appellants. Indeed, she had no hand at all in
the actual shooting of her husband. Neither is it clear that she helped directly in the planning and
preparation thereof, albeit We are convinced that she knew it was going to be done and did not object.
(U.S. vs. Romulo, 15 Phil. 408, 411-414.) It is not definitely shown that she masterminded it either by
herself alone or together with her co-appellant Talingdan. At best, such conclusion could be plain
surmise, suspicion and conjecture, not really includible. After all, she had been having her own
unworthy ways with him for quite a long time, seemingly without any need of his complete elimination.
Why go to so much trouble for something she was already enjoying, and not even very surreptitiously?
In fact, the only remark Bernardo had occasion to make to Teresa one time was "If you become
pregnant, the one in your womb is not my child." The worst he did to her for all her faults was just to
slap her.

But this is not saying that she is entirely free from criminal liability. There is in the record morally
convincing proof that she is at the very least an accessory to the offense committed by her co-accused.
She was inside the room when her husband was shot. As she came out after the shooting, she inquired
from Corazon if she was able to recognize the assailants of her father. When Corazon Identified
appellants Talingdan, Tobias, Berras and Bides as the culprits, Teresa did not only enjoin her daughter
not to reveal what she knew to anyone, she went to the extent of warning her, "Don't tell it to anyone. I
will kill you if you tell this to somebody." Later, when the peace officers who repaired to their house to
investigate what happened, instead of helping them with the information given to her by Corazon, she
claimed she had no suspects in mind. In other words, whereas, before the actual shooting of her
husband, she was more or less passive in her attitude regarding her co-appellants' conspiracy, known to
her, to do away with him, after Bernardo was killed, she became active in her cooperation with them.
These subsequent acts of her constitute "concealing or assisting in the escape of the principal in the
crime" which makes her liable as an accessory after the fact under paragraph 3 of Article 19 of the
Revised Penal Code.

As already indicated earlier, the offense committed by appellants was murder qualified by treachery. It
being obvious that appellants deliberately chose nighttime to suddenly and without warning assault
their victim, taking advantage of their number and arms, it is manifest that they employed treachery to
insure success in attaining their malevolent objective. In addition, it is indisputable that appellants acted
with evident premeditation. Talingdan made the threat to kill Bernardo Thursday night, then he met
with his co-accused to work out their conspiracy Friday and again on Saturday evening just before the
actual shooting. In other words, they had motive Talingdan's taking up the cudgels for his paramour,
Teresa and enough time to meditate, and desist, if they were not resolved to proceed with their
objective. Finally, they committed the offense in the dwelling of the offended party.

In these premises, the crime committed by the male appellants being murder, qualified by treachery,
and attended by the generic aggravating circumstances of evident premeditation and that the offense
was committed in the dwelling of the offended party, the Court has no alternative under the law but to
impose upon them the capital penalty. However, as to appellant Teresa, she is hereby found guilty only
as an accessory to the same murder.

WHEREFORE, with the above finding of guilt beyond reasonable doubt of the appellants Nemesio
Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides of the crime of murder with two
aggravating circumstances, without any mitigating circumstance to offset them, they are each hereby
sentenced to DEATH to be executed in accordance with law. Guilty beyond reasonable doubt as
accessory to the same murder, appellant Teresa Domogma is hereby sentenced to suffer the
indeterminate penalty of five (5) years of prision correccional as minimum to eight (8) years of prision
mayor as maximum, with the accessory penalties of the law. In all other respects, the judgment of the
trial court is affirmed, with costs against appellants.

14. Dizon-Pamintuan v. People, G.R. No. 111426, 11 July 1994

[G.R. No. 111426. July 11, 1994.]

NORMA DIZON-PAMINTUAN, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION
DAVIDE, JR., J.:
The chief issue presented for our determination in this petition for review under Rule 45 of the Rules of
Court is the correctness of the decision of 29 March 1993 of the Court of Appeals in C A-G.R. CR No.
11024 1 which affirmed the decision of Branch 20 of the Regional Trial Court of Manila in Criminal Case
No. 88-64954 2 finding the petitioner guilty of the violation of the Anti-Fencing Law (P.D. No. 1612) but
set aside the penalty imposed and ordered the trial court to receive additional evidence on the "correct
valuation" of the pieces of jewelry involved for the sole purpose of determining the penalty to be
imposed.

The information in Criminal Case No. 88-64954 charged the petitioner with the violation of the Anti-
Fencing Law in that

"on or about and during the period from February 12, to February 24, 1988, inclusive, in the City of
Manila, Philippines, the said accused, with intent of gain for herself or for another, did then and there
wilfully, unlawfully and knowingly buy and keep in her possession and/or sell or dispose of the following
jewelries, to wit: one (1) set of earings, a ring studded with diamond sin a triangular style, one (1) set of
earrings (diamond studded) and one (1) diamond-studded crucifix, or all valued at P105,000.00, which
she knew or should have known to have been derived from the proceeds of the crime of robbery
committed by Joselito Sacdalan Salinas against the owner Teodoro and Luzviminda Encarnacion." 3

On the basis of the testimonies of prosecution witnesses Teodoro Encarnacion (one of the offended
parties), Cp. Ignacio Jao, Jr., and Pfc. Emmanuel Sanchez, both of the Western Police District, the trial
court promulgated on 16 November 1990 its decision, the dispositive portion of which reads:

"WHEREFORE, the prosecuting having proved the guilt of the accused for violation of Presidential
Decree No. 1612 beyond reasonable doubt, the accused Norma Dizon-Pamintuan is hereby sentenced to
suffer an indeterminate penalty of imprisonment from FOURTEEN (14) YEARS of prison mayor to
NINETEEN (19) YEARS of reclusion temporal.

No civil liability in view of the recovery of the items, subject-matter of this case.

With costs."

The evidence of the prosecution is summarized by the trial court as follows:

"Teodoro Encarnacion, Undersecretary, Department of Public Works and Highways testified that he has
just arrived at his residence located at Better Living Subdivision, Parañaque at around 9:45 p.m. of
February 12, 1988 coming from the Airport and immediately proceeded inside the house, leaving behind
his driver and two housemaids outside to pick-up his personal belongings from his case. It was at this
point that five unidentified masked armed persons appeared from the grassy portion of the lot beside
the house and poked their guns to his driver and two helpers and dragged them inside his house. That
the men pointed a gun at him and was made to lie face down on the floor. Thereafter, the robbers
ransacked the house and took away jewelries and other personal properties including cash. After the
intruders left the house he reported the matter immediately to the police. He was then interviewed by
the Parañaque police and was informed that an operation group would be assigned to the case.

He likewise reported the matter to the Western Police District on February 15, 1988. Two days later, a
group of WPD operatives came over to his house and he was asked to prepare a list of items of jewelry
and other valuables that were lost including a sketch of distinctive items. He was later told that some of
the lost items were in Chinatown area as tipped by the informer the police had dispatched. That an
entrapment would be made with their participation, on February 14, 1988. As such, they went to Camp
Crame at around 9:00 a.m. and arrived at the vicinity of 733 Florentino Torres Street, Sta. Cruz, Manila
at about 10:00 a.m.; that he is with his wife posed as a buyer and were able to recognize items of the
jewelry stolen displayed at the stall being tended by Norma Dizon Pamintuan; the pieces were: 1 earring
and ring studded with diamonds worth P75,000 bought from estimator Nancy Bacud (Exh. "C-2"), 1 set
of earring diamond worth P15,000 (Exh. "C-3") and 1 gold chain with crucifix worth P3,000 (Exh. "C-4").

Corporal Ignacio Jao, Jr. of the WPD testified that he was with the spouses Teodoro Encarnacion, Jr. in
the morning of February 24, 1988 and they proceeded to Florentino Torres Street, Sta. Cruz, Manila at
the stall of Norma Dizon-Pamintuan together with Sgt. Perez. After the spouses Encarnacion recognized
the items subject matter of the robbery at the display window of the stall being tended by the herein
accused, they invited the latter to the precinct and investigated the same. They likewise brought the
said showcase to the WPD station. He further testified that he has no prior knowledge of the stolen
jewelries of the private complainant from one store to another.

Pfc. Emmanuel Sanchez of the WPD testified that he reported for duty on February 24, 1988; that he
was with the group who accompanied the spouses Encarnacion in Sta. Cruz, Manila and was around
when the couple saw some of the lost jewelries in the display stall of the accused. He was likewise
present during the early part of the investigation of the WPD station." 5

The recovery of the pieces of jewelry, on the basis of which the trial court ruled that no civil liability
should be adjudged against the petitioner, took place when, as testified to by Teodoro Encarnacion, the
petitioner "admitted that she got the items but she did not know they were stolen [and that] she
surrendered the items and gave them to [his] wife." 6

On the other hand, the version of the defense, as testified to by Rosito Dizon-Pamintuan, is summarized
by the trial court thus:

"The defense presented only the testimony of Rosito Dizon-Pamintuan who testified that he is the
brother of Norma Dizon-Pamintuan and that sometime around 11:00 a.m. of February 24, 1985, he,
together with the accused went infront of the Carinderia along Florentino Torres Street, Sta. Cruz,
Manila waiting for a vacancy therein to eat lunch. Suddenly, three persons arrived and he overheard
that Cpl. Jao told her sister to get the jewelry from inside the display window but her sister requested to
wait for Fredo, the owner of the stall. But ten minutes later when said Fredo did not show up, the police
officer opened the display stall was hauled to a passenger jeepney and the same, together with the
accused were taken to the police headquarters. He likewise testified that he accompanied his sister to
the station and after investigation was sent home." 7

In convicting the petitioner, the trial court made the following findings:

"The prosecution was able to prove by evidence that the recovered items were part of the loot and such
recovered items belong to the spouses Encarnacion, the herein private complainants. That such items
were recovered by the Police Officers from the stall being tended by the accused at that time. Of
importance, is that the law provides a disputable presumption of fencing under Section 5 thereof, to wit:

‘Mere possession of any goods, article, item object, or anything of value which has been the subject of
robbery of thievery shall be prima facie evidence of fencing.’

There is no doubt that the recovered items were found in the possession of the accused and she was not
able to rebut the presumption though the evidence for the defense alleged that the stall is owned by
one Fredo. A distinction should likewise be made between ownership and possession in relation to the
act of fencing. Moreover, as to the value of the jewelries recovered, the prosecution was able to show
that the same is Ninety Three Thousand Pesos (P93,000.00)." 8

The petitioner then appealed her conviction to the Court of Appeals (CA-G.R. CR No. 11024) where she
raised two issues: (1) that the judgment was based on a mere presumption, and (2) that the prosecution
failed to show that the value of the jewelry recovered is P93,000.00.

In its challenged decision of 29 March 1993, the Court of Appeals disposed of the first issue in this wise:

"The guilt of accused-appellant was established beyond reasonable doubt. All the elements of the crime
of fencing in violation of the Anti-Fencing Law of 1979 (P.D. No. 1612), to wit:

1. A crime of robbery of theft has been committed;

2. A person, not a participant in said crime, buys, receives, possesses, keeps, acquires, conceals, sells or
disposes, or buys and sells; or in any manner deals in any article or item, object or anything of value;

3. With personal knowledge, or should be known to said person that said item, object or anything of
value has been derived from the proceeds of the crime of robbery of theft;

4. With intent to gain for himself or for another;

have been established by positive and convincing evidence of the prosecution . . .

x x x

The fact that a crime of robbery has been committed on February 12, 1988 is established by the
testimony of private complainant Teodoro T. Encarnacion who immediately reported the same to
Parañaque Police Station of the Southern Police District (TSN, Hearings of October 3, 1988, November 9,
1988 and January 11, 1989; Exh. A) and submitted a list and sketches of the jewelries robbed, among
other things, from their residence located at Better Living Subdivision, Parañaque, Metro Manila (Exh. C,
C-1 to C-4 and D).

The second element is likewise established by convincing evidence. On February 24, 1988, Accused-
appellant was found selling the jewelries (Exhs. C-2, C-3 and C-4) which was displayed in a showcase in a
stall located at Florentino Street, Sta. Cruz, Manila [Testimonies of Teodoro Encarnacion (id. supra); Cpl.
Ignacio Jao (TSN, Hearing of February 13, 1989) and Pfc. Emmanuel Sanchez (TSN, Hearing of June 4,
1989)].

On the element of knowledge that the items are derived from the proceeds of the crime of robbery and
of intent to gain for herself or for another, the Anti-Fencing Law provides:
‘SECTION 5. Presumption of Fencing. — Mere possession of any good, article, item, object, or anything
of value which has been the subject of robbery of thievery shall be prima facie evidence of fencing.’

Knowledge and intent to gain are proven by the fact that these jewelries were found in possession of
appellant and they were displayed for sale in a showcase being tended by her in a stall along Florentino
Street, Sta. Cruz, Manila." 9

Nevertheless, the Court of Appeals was of the opinion that there was not enough evidence to prove the
value of the pieces of jewelry recovered, which is essential to the imposition of the proper penalty under
Section 3 of P.D. No. 1612. It opined that the trial court erred in concluding that "the value of the
recovered jewelries is P93,000.00 based on the bare testimony of the private complainant and the self-
serving list he submitted (Exhs. C, C-2 and C-4, TSN, Hearing of October 3, 1993)." 10

The dispositive portion of the Court of Appeals’ decision reads:

"WHEREFORE, finding that the trial court did not commit any reversible error, its decision dated October
26, 1990 convicting accused appellant is hereby AFFIRMED with the modification that the penalty
imposed is SET ASIDE and the Regional Trial Court (Branch 20) of Manila is ordered to receive evidence
with respect to the correct valuation of the properties involved in this case, marked as Exhibits "C", "C-
2" and "C-4" for the sole purpose of determining the proper penalty to be meted out against accused
under Section 3, P.D. No. 1612. Let the original records be remanded immediately."

Hence, this petition wherein the petitioner contends that:

"I

PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN AFFIRMING THE DECISION OF PUBLIC
RESPONDENT JUDGE CAÑEBA, IN BLATANT DISREGARD OF APPLICABLE LAW AND WELL-ESTABLISHED
JURISPRUDENCE.

II

PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN REMANDING THE CASE TO THE COURT
A QUO FOR RECEPTION OF EVIDENCE FOR THE PURPOSE OF DETERMINING THE CORRECT PENALTY TO
BE IMPOSED." 12

On 23 February 1994, after the public respondents had filed their Comment and the petitioner her Reply
to the Comment, this Court gave due course to the petition and required the parties to submit their
respective memoranda, which they subsequently complied with.

The first assigned error is without merit.

Fencing, as defined in Section 2 of P.D. No. 1612 (Anti-Fencing Law), is "the act of any person who, with
intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or
dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value
which he knows, or should be known to him, to have been derived from the proceeds of the crime of
robbery or theft."

Before P.D. No. 1612, a fence could only be prosecuted for and held liable as an accessory, as the term is
defined in Article 19 of the Revised Penal Code. The penalty applicable to an accessory is obviously light
under the rules prescribed in Articles 53, 55, and 57 of the Revised Penal Code, subject to the
qualification set forth in Article 60 thereof. Noting, however, the reports from law enforcement agencies
that "there is rampant robbery and thievery of government and private properties" and that "such
robbery and thievery have become profitable on the part of the lawless elements because of the
existence of ready buyers, commonly known as fence, of stolen properties," P.D. No. 1612 was enacted
to "impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft."
Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the
Revised Penal Code or under P.D. No. 1612. However, in the latter case, he ceases to be a mere
accessory but becomes a principal in the crime of fencing. Elsewise stated, the crimes of robbery and
theft, on the one hand, and fencing, on the other, are separate and distinct offenses. 13 The state may
thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the
preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and
P.D. No. 1612 creates a presumption of fencing 14 and prescribes a higher penalty based on the value of
the property. 15

The elements of the crime of fencing are:

1. A crime of robbery of theft has been committed;

2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft,
buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner
deals in any article, item, object or anything of value, which has been derived from the proceeds of the
said crime;

3. The accused knows or should have known that the said article, item, object or anything of value has
been derived from the proceeds of the crime of robbery or theft; and

4. There is, on the part of the accused, intent to gain for himself or for another.

In the instant case, there is no doubt that the first, second, and fourth elements were duly established. A
robbery was committed on 12 February 1988 in the house of the private complainants who afterwards
reported the incident to the Parañaque Police, the Western Police District, the NBI, and the CIS, and
submitted a list of the lost items and sketches of the jewelry taken from them (Exhibits "C" and "D").
Three of these items stolen, viz., (a) a pair of earrings and ring studded with diamonds worth P75,000.00
(Exhibit "C-w"); (b) one set of earrings worth P15,000.00 (Exhibit "C-3"); and (c) a chain with crucifix
worth P3,000.00 (Exhibit "C-4"), were displayed for sale at a stall tended to by the petitioner in
Florentino Torres Street, Sta. Cruz, Manila. The public display of the articles for sale clearly manifested
an intent to gain on the part of the petitioner.

The more crucial issue to be resolved is whether the prosecution proved the existence of the third
element: that the accused know or should have known that the items recovered from here were the
proceeds of the crime of robbery of theft.

One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof,
of is aware of the existence of something, or has the acquaintance with facts, or if he has something
within the mind’s grasp with certitude and clarity. 16 When knowledge of the existence of a particular
fact is an element of an offense, such knowledge is established if a person is aware of a high probability
of its existence unless he actually believes that it does not exist. 17 On the other hand, the words
"should know" denote the fact that a person of reasonable prudence and intelligence would ascertain
the fact in performance of his duty to another or would govern his conduct upon assumption that such
fact exists. 18 Knowledge refers to a mental state of awareness about a fact. Since the court cannot
penetrate the mind of an accused and state with certainty what is contained therein, it must determine
such knowledge with care from the overt acts of that person. And given two equally plausible states of
cognition or mental awareness, the court should choose the one which sustains the constitutional
presumption of innocence. 19

Since Section 5 of P.D. No. 1612 expressly provides that" [m]ere possession of any good, article, item,
object, or anything of value which has been the subject of robbery or thievery shall be prima facie
evidence of fencing," it follows that the petitioner is presumed to have knowledge of the fact that the
items found in her possession were the proceeds of robbery or theft. The presumption is reasonable for
no other natural or logical inference can arise from the established fact of her possession of the
proceeds of the crime of robbery or theft. This presumption does not offend the presumption of
innocence enshrined in the fundamental law. 20 In the early case of United States v. Luling, 21 this Court
held:

"It has been frequently decided, in case of statutory crimes, that no constitutional provision is violated
by a statute providing that proof by the state of some material fact or facts shall constitute prima facie
evidence of guilt, and that then the burden is shifted to the defendant for the purpose of showing that
such act or acts are innocent and are committed without unlawful intention. (Commonwealth v. Minor,
88 Ky., 422.)

In some of the States, as well as in England, there exist what are known as common law offenses. In the
Philippine Islands no act is a crime unless it is made so by statute. The state having the right to declare
what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall
constitute a crime, as well as what act or acts shall constitute a crime, as well as what proof shall
constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that
such act or acts are innocent and are not committed with any criminal intent or intention."

In his book on constitutional law, 22 Mr. Justice Isagani A. Cruz said:

"Nevertheless, the constitutional presumption of innocence may be overcome by contrary presumptions

based on the experience of human conduct [People v. Labara, April 20, 1954]. Unexplained flight, for
example, may lead to an inference of guilt, as ‘the wicked flee when no man pursueth, but the righteous
is as bold as a lion.’ Failure on the part of the accused to explain his possession of stolen property may
give rise to the reasonable presumption that it was he himself who had stolen it [U.S. v. Espia, 16 Phil.
506]. Under our Revised Penal Code, the inability of an accountable officer to produce funds or property
entrusted to him will be considered prima facie evidence that he has appropriate them to his personal
use [Art. 217]. According to Cooley, the constitutional presumption will not apply as long as there is
‘some rational connection between the fact proved and the ultimate fact presumed, and the inference
of one fact from proof of another shall not be so unreasonable as to be purely arbitrary mandate’ [1
Cooley, 639]."
The petitioner was unable to rebut the presumption under P.D. No. 1612. She relied solely on the
testimony of her brother which was insufficient to overcome the presumption, and, on the contrary,
even disclosed that the petitioner was engaged in the purchase and sale of jewelry and that she used to
buy from a certain Fredo. 23

Fredo was not presented as a witness and it was not established that he was a licensed dealer or
supplier of jewelry. Section 6 of P.D. No. 1612 provides that "all stores, establishments or entities
dealing in the buy and sell of any good, article, item, object or anything of value obtained from an
unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the
necessary clearance or permit from the station commander of the Integrated National Police in the town
or city where such store, establishment or entity is located." Under the Rules and Regulations 24
promulgated to carry out the provisions of Section 6, an unlicensed dealer/supplier refers to any person,
partnership, firm, corporation, association or any other entity or establishment not licensed by the
government to engage in the business of dealing in or supplying "used secondhand articles," which
refers to any good, article, item, object or anything of value obtained from an unlicensed dealer or
supplier, regardless of whether the same has actually or in fact been used.

We do not, however, agree with the Court of Appeals that there is insufficient evidence to prove the
actual value of the recovered articles.

As found by the trial court, the recovered articles had a total value of P93,000.00, broken down as
follows:

"a) one earring and ring studded with diamonds (Exh. "C-2") — P75,000.00

b) one set of earring (Exh. "C-3") — P15,000.00

c) one gold chain with crucifix (Exh. "C-4") — P3,000.00" .

These findings are based on the testimony of Mr. Encarnacion 25 and on Exhibit "C," 26 a list of the
items which were taken by the robbers on 12 February 1988, together with the corresponding valuation
thereof. On cross-examination, Mr. Encarnacion re-affirmed his testimony on direct examination that
the value of the pieces of jewelry described in Exhibit "C-2" is P75,000.00 27 and that the value of the
items described in Exhibit "C-3" is P15,000.00, although he admitted that only one earring — and not
the pair — was recovered. 28 The cross-examination withheld any question on the gold chain with
crucifix described in Exhibit "C-4." In view, however, of the admission that only one earring was
recovered of the jewelry described in Exhibit "C-3," it would be reasonable to reduce the value from
P15,000.00 to P7,500.00. Accordingly, the total value of the pieces of jewelry displayed for sale by the
petitioner and established to be part of the proceeds of the robbery on 12 February 1988 would be
P87,000.00.

Section 3(a) of P.D. No. 1612 provides that the penalty of prision mayor shall be imposed upon the
accused if the value of the property involved is more than P12,000.00 but does not exceed P22,000.00,
and if the value of such property exceeds the latter sum, the penalty of prision mayor should be
imposed in its maximum period, adding one year for each additional P10,000.00; the total penalty which
may be imposed, however, shall not exceed twenty years. In such cases, the penalty shall be termed
reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code
shall also be imposed. The maximum penalty that can be imposed in this case would then be eighteen
(18) years and five (5) months, which is within the range of reclusion temporal maximum. Applying the
Indeterminate Sentence Law which allows the imposition of an indeterminate penalty which, with
respect to offenses penalized by a special law, shall range from a minimum which shall not be lower
than the minimum prescribed by the special law to a maximum which should not exceed the maximum
provided therein, the petitioner can thus be sentenced to an indeterminate penalty ranging from ten
(10) years and one (1) day of prision mayor maximum as minimum to eighteen (18) years and five (5)
months of reclusion temporal maximum as maximum, with the accessory penalties corresponding to the
latter.

In the light of the foregoing, the Court of Appeals erred in setting aside the penalty imposed by the trial
court and in remanding the case to the trial court for further reception of evidence to determine the
actual value of the pieces of jewelry recovered from the petitioner and for the imposition of the
appropriate penalty.

We do not agree with the petitioner’s contention, though, that a remand for further reception of
evidence would place her in double jeopardy. There is double jeopardy when the following requisites
court: (1) the first jeopardy must have attached prior to the second, (2) the first jeopardy must have
validly been terminated, and (3) the second jeopardy must before the same offense as that in the first.
29 Such a concurrence would not occur assuming that the case was remanded to the trial court.

WHEREFORE, the instant petition is party GRANTED by setting aside the challenged decision of the Court
of Appeals in CA-G.R. Cr No. 11024 insofar as it sets aside the penalty imposed by Branch 20 of the
Regional Trial Court of Manila in Criminal Case No. 88-64954 and orders the remand of the case for the
trial court to receive evidence with respect to the correct value of the properties involved. The decision
of the Regional Trial Court is AFFIRMED subject to the modification of the penalty which is hereby
reduced to an indeterminate penalty ranging from Ten (10) years and One (1) day of Prision Mayor
maximum as minimum to Eighteen (18) years and Five (5) months of Reclusion Temporal maximum as
maximum, with the accessory penalties if the latter.

SO ORDERED.