G.R. No.

109279 January 18, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
OCTAVIO MENDOZA y LANDICHO, accused-appellant.

He is further ordered to pay to Alipio Eusebio the amount of P66,000.00 for the funeral, wake, burial and
incidental expenses that said Alipio Eusebio spent by reason of the death of his daughter Cecilia Eusebio
Mendoza.
And to Charmaine Mendoza the accused is hereby ordered to pay her the following
1. P50,000.00 for causing the death of her mother Cecilia Eusebio Mendoza;

MELO, J.:

2. P100,000.00 for and as moral damages;

On the night of November 11, 1988, one Cecilia Eusebio Mendoza was shot to death. The trial court found her
husband, Octavio Mendoza, responsible for her death. However the real victim of this unfortunate occurrence
is the spouses' only minor child, Charmaine Mendoza, who is now left to the care of her maternal
grandparents.

3. P25,000.00 for and as attorney's fees.

For the death of his wife Cecilia Mendoza, accused-appellant Octavio Mendoza was separately charged with
parricide and illegal possession of firearm and ammunition under two Informations, to wit:
Criminal Case No. 636
That on or about the 11th day of November, 1988, in the Municipality of Las Pias, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and without
justifiable motive, did, then and there wilfully, unlawfully and feloniously attack, assault and shot with a .38
caliber revolver one Cecilia Eusebio Mendoza, his wife, thereby inflicting upon her serious and mortal
gunshot wounds which directly caused her death.
CONTRARY TO LAW.
Criminal Case No. 637
That on or about the 11th day of November, 1988, in the municipality of Las Pias, Metro Manila, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there wilfully,
unlawfully and feloniously have in his possession, control and direct custody a firearm one .38 caliber
revolver, Colt with Serial No. 41001 and four (4) live ammunitions use in the crime of parricide, without first
securing the necessary license or permit therefor.

Plus costs of the proceedings.

Accused Octavio Mendoza y Landicho is further deprived of his civil and parental rights over his child
Charmaine Mendoza and he cannot inherit from her.
2. In Criminal Case No. 637, and finding the accused Octavio Mendoza y Landicho guilty beyond reasonable
doubt of the crime of Illegal Possession of Firearm and Ammunitions, used in the Commission of Parricide,
defined and penalized under Secton 1 of Presidential Decree No. 1866 as amended by Presidential decree No.
1878-A said accused is hereby sentenced to suffer the penalty of Reclusion Perpetua, with all the accessories
of the law.
The firearms and ammunitions used, a Colt Revolver Cal. 38, with a Serial Number 41001 is hereby forfeited
in favor of the government together with all the ammunitions.
With costs against the accused.
Conformably with the Circular of the Honorable Supreme Court, the accused is hereby ordered committed to
the Bureau of Corrections.
The accused, if he appeals the decision entitled to Bail.
SO ORDERED

CONTRARY TO LAW.

(pp. 76-77, Rollo.)

(pp. 38-39, Rollo.)

Dissatisfied, accused-appellant has interposed the instant appeal, arguing that the trial court erred in

Accused-appellant pleaded not guilty to both charges, whereupon a joint trial on the merits commenced,
following which, a judgment of conviction was rendered, disposing:

WHEREFORE, premises considered:

1. In Criminal Case No. 636, and finding accused Octavio Mendoza y Landicho guilty beyond reasonable
doubt of the crime of PARRICIDE, defined and penalized under Article 246 of the Revised Penal Code, he is
hereby sentenced to suffer the penalty of Reclusion Perpetua, with all the accessory penalties attendant
thereto.

. . . substantially and almost totally relying on illegally procured and/or inadmissible, unauthenticated,
questionable documents, in grave violation of accused's constitutional right to privacy of communication and
papers, and/or his right against unreasonable search and seizure.
II

. . . almost substantially and wholly relying in the incredibly coached and unreliable direct testimony of the
minor daughter of accused and victim, Charmaine Mendoza, despite the evident grave conflicts or
contradictions thereof to the facts clearly and decisively testified by and/or findings of the police investigators.

Charmaine ran towards her gasping and bleeding mother and held her. Then, accused-appellant asked
Charmaine to call her Aunt Dolores Mendoza to inform her of the death of Cecilia. Dolores could not believe
Charmaine and talked to accused-appellant instead (Ibid.).

III

Meanwhile, the victim bled to death on the floor.

. . . not believing the decisively clear and straight forward testimony of the accused as corroborated by his
witness.

Accused-appellant subsequently called his brother-in-law, Sgt. Antonio Gabac, and told him that Cecilia had
been shot and is already dead. Gabac, on the other line, told accused-appellant not to touch anything and that
he would be arriving shortly. When Gabac finally arrived, he and accused-appellant carried the lifeless body of
Cecilia into accused-appellant's car and brought her to the Perpetual Help Hospital.

IV
. . . ultimately convicting accused for the separate offenses of parricide and Illegal Possession of Firearms
despite the police investigator's undisturbed findings of a shooting and stabbing incident, a situation consistent
with the decisively clear postulate of the defense.
V
. . . not considering, even assuming merely for the sake of argument, but without conceding, that the crime of
parricide was committed, the law and doctrine that if a firearm is used in the commission of a killing
(Homicide, parricide, etc.) the same, as now mandated by Republic Act No. 8294 (known as Revilla Law)
must only be considered an aggravating circumstance. This is consistent to the rule that Penal laws favorable
to the accused shall have retroactive effects.

Cecilia Mendoza was pronounced dead on arrival. The autopsy report indicated the cause of death as follows:
Hemorrhage, severe, secondary to gunshot wounds of the back and left shoulder.
Upon receiving information about the shooting incident, Chief Investigator Cpl. Leopoldo Africa, together
with investigators Cpl. Prudencio Parejas, Cpl. Gorgonio Nortales, and Pfc. Rolando Almario, proceeded to
the hospital to investigate the incident, but accused-appellant refused to give any statement or comment.
Thereafter, the policemen invited Antonio Gabac to accompany them to the crime scene at No. 2 Tramo Street,
Camella Homes, Phase III, Pamplona, Las Pias. While they were inspecting the premises, Cpl. Africa noticed
something tucked inside Gabac's waist. He promptly told Gabac "Pare, pakisurrender mo nga iyang baril."
Gabac immediately handed Cpl. Africa a .38 caliber revolver with Serial No. 41001 and with two empty shells
and two live rounds. Gabac informed Africa that the gun was handed to him by accused-appellant when Gabac
arrived at the crime scene to respond to the call of accused-appellant for assistance (p. 7, Ibid.)

The facts as established by the evidence for the prosecution are as follows.
On November 11, 1988, accused-appellant, his wife Cecilia Mendoza, and their then 10-year-old daughter
attended the birthday party of a relative of accused-appellant held at McDonald's in Harrison Plaza. While the
party was going on, accused-appellant letf and proceeded to Kentucky Fried Chicken Restaurant where he had
some beer. When it was time for Cecilia and Charmaine to go home, they could not find accused-appellant,
hence, they decided to just leave, proceeding directly to their residence at No. 2 Tramo Street, Camella
Homes, Phase III, Pamplona, Las Pias (p. 4, Appellee's Brief).
Cecilia and Charmaine arrived home at around 7 o'clock in the evening but accused-appellant was not yet
there. After a while, mother and daughter left for the house of Cecilia's parents in Bacoor, Cavite to bring
some perfume for Cecilia's brother, Francisco (p. 5, Ibid. ).
At about 9 o'clock in the evening, Cecilia and Charmaine left Bacoor. They rode a jeepney and at the gate of
the subdivision where they live, they saw the car of Rowena Hernandez, Cecilia's god-daughter, and they
hitched a ride home. Finally home, they saw their car already parked in the garage of their neighbor. All the
lights in their house were on but the screen door was locked. They knocked at the window but accusedappellant did not respond. A moment later, however, accused-appellant opened the back door and mother and
daughter went straight to the master's bedroom (Ibid.).
While inside the master's bedroom, accused-appellant who was drunk instructed Charmaine to get cold water
and to douse him. She willingly obliged, after which she was told to go to her room. She changed her clothes
and readied herself for bed. While in her room, Charmaine heard her parents quarrelling over the issue of
Cecilia and Charmaine having left accused-appellant at the party. Thereafter, Charmaine suddenly heard three
gunshots. Running out of her room, Charmaine saw her mother Cecilia down on the floor of their living room,
bleeding profusely. Charmaine saw accused-appellant hiding a gun under the bed in her parents' room (pp. 56, Ibid.).

Cecilia's father, Alipio Eusebio, having been informed of his daughter's death, and that valuables were being
taken out of his daughter's house, decided to remove, together with his sons, the remaining pieces of property
therein, including accused-appellant's personal effects (p. 8, Ibid.)
From the aforestated personal effects of accused-appellant, Alipio found Mission Order No. 86-580-893 dated
November 7, 1986 issued to accused-appellant by Col. Eladio Gonzales, PAF (GSC), Acting Wing
Commander, 580th Aircraft Central Warning Wing, Villamor Airbase, Pasay City, which authorized accusedappellant to carry a Colt Revolver, 38 Caliber with Serial No. 41001 from November 15, 1986 to December
15, 1986. There was also a Memorandum Receipt for Equipment, dated November 10, 1986, approved by
Captain Luis L. Salanguit of the Philippine Air Force and Lt. Col. Ramon Bandong and issued to one Octavio
L. Mendoza, Captain, PAF, Assistant Director for Personnel which described the firearm as "One Colt
Revolver SN 41001" (p. 52, Rollo).
Accused-appellant tested positive for the presence of nitrates (p. 50, Ibid.).
Accused-appellant's own account of the incident is to the effect that before the shooting incident on the night
of November 11, 1988, he and his wife Cecilia were arguing about the latter carrying an unlicensed .38 caliber
revolver, and that a few weeks earlier they likewise argued because he found out that his wife was still
supporting her parents as well as her brothers and sisters.
Further, accused-appellant claimed that he saw men roaming near their house and that he had received death
threats over the telephone because Cecilia owed $35,000.00 to some people, in relation to her jewelry and
perfumes business. She also allegedly owed people some cash which was coursed through her by workers
from Saudi Arabia to be sent to their relatives in the Philippines (tsn, November 16, 1992, pp. 14-19).
Accused-appellant claimed that he went home alone at around 7 o'clock on the night of November 11, 1988,
after his wife, Cecilia, and daughter, Charmaine, had left him at the party. When his wife and Charmaine
2

arrived, they proceeded to the master's bedroom, after which, her daughter kissed him goodnight. He and his
wife were then left alone in their room and at that moment, his wife showed him some money and uttered
"Dad, okey na". She also brought out the .38 caliber revolver from her bag then changed her clothes, and went
to the bathroom, and he fell asleep (tsn, November 16, 1992, pp. 21-28).
Thereafter, accused-appellant declared, he was suddenly awakened by an unusual sound or shot outside their
room. When he went out, he saw his wife wounded and bleeding, and he felt and heard somebody run from the
backdoor of their house which banged. Consequently, he ran outside and pursued the intruder who ran from
the backdoor, but accused-appellant claimed that he only went up to their gate because of his concern over his
wife's condition.
When he went back, he woke up Charmaine, and seeing the condition of Cecilia, both of them cried. After a
while, he called up his brother-in-law, policeman Antonio Gabac (tsn, November 16, 1992, p. 32, p. 34, p. 37)
and the two of them then brought Cecilia to the hospital.
In the hospital, some police investigators from the Las Pias Police Station asked accused-appellant about the
incident, but he refused to comment. He was later invited to the police station for investigation, but due to the
advice of his relative, Fiscal Castillo, he never gave any statement to the police about the incident.
Accused-appellant denied the charges against him. While he admitted having been married to Cecilia on
February 28, 1976, he claimed that his wife was killed by somebody else. Further, even as he denied
possession of a .38 caliber revolver, he admitted to have been authorized to carry a .45 caliber between the
years 1968 and 1969 (tsn, November 16, 1992, pp. 7 and 68).
Accused-appellant swore that he had no reason to kill his wife because he loved her. However, he admitted to
have sired children by another woman (tsn, November 16, 1992, p. 51).
The trial court did not give credence and weight to the defense's theory that the victim was engaged in illegal
activities which supposedly led to her death. Rather, the trial court found that accused-appellant had the
opportunity and the propensity to commit the crime (pp. 66-67, Rollo).
Accordingly, although the evidence was partly circumstantial, the trial court made a pronouncement that all
elements which were needed to arrive at a conclusion that accused-appellant killed his wife were present and
that no proof had been established by him to overturn its findings (p. 67, ibid.).
After going through the evidentiary record, we find no reasons to disagree with the trial court and are
convinced that the guilt of accused-appellant Octavio Mendoza has been duly established.
Although the judgment of conviction is based on circumstantial evidence, conviction is proper if the
circumstances proven constitute an unbroken chain which lead to one fair and reasonable conclusion pointing
to the accused, to the exclusion of all others, as the guilty person (Pecho v. People, 262 SCRA 518 [1996]).
Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its
conclusion and finding of guilt (People vs. Damao, 253 SCRA 146 [1996]).
During the trial of the case, it was duly established that the only persons residing at No. 2 Tramo Street,
Camella Homes, Phase III, Pamplona, Las Pias, were the Mendozas, namely, accused-appellant Octavio, his
daughter Charmaine, and his now deceased wife Cecilia. On the night Cecilia was shot to death, no one was
there except these three person. Accused-appellant struggled to persuade the trial court of his innocence by
denying that the killed his wife, insinuating that another person is the killer. This stance of denial is negative
self-serving evidence which deserves no evidentiary weight (People v. Gondora, 265 SCRA 408 [1996]). The
insinuation of accused-appellant that some convenient intruder perpetrated the killing is absolutely without
basis and unsubstantiated. It is plainly an afterthought, a devised plot to escape just punishment. In fact,

accused-appellant even refused to give any statement or comment to the police investigators to enlighten them
about the shooting incident. If indeed, Cecilia was shot and killed by somebody else as claimed by accusedappellant, it would surely have been but natural for him, as a husband to cooperate with police authorities for
the speedy apprehension of the gunman, by informing them immediately of the alleged intruder-killer. But he
did not and instead, he took the advice of his relative, Fiscal Castillo, to keep silent about the incident when
the police conducted the investigation, which is rather odd if he really were innocent. Verily it was only on
November 16, 1992, or 2 years after the incident that he came out with the story about the handy intruder. He
kept silent for two long years.
Accused-appellant strives to persuade us that the trial court erred in giving full credence to the testimony of his
father-in-law, Alipio Eusebio, and his own daughter, Charmaine Mendoza. But having been in a better
position to observe the witnesses, the trial court's appreciation of their testimony, truthfulness, honesty, and
candor, deserves the highest respect (People vs. Del Prado, 253 SCRA 731 [1996]).
As established by the prosecution, and this is admitted by accused-appellant, even before he and his family
went to the birthday party of his relative, he and the victim had already several occasions of altercation. Such
fact was shown when accused-appellant left his wife and daughter at the party without informing them where
he would be. The victim's father, Alipio Eusebio, attested to the fact that accused-appellant and his daughter,
Cecilia, had been quarrelling. Accused-appellant suspected that Cecilia was having an illicit relationship with
another man. He contends that Alipio is not a credible witness for the prosecution in view of his relationship
with the victim and that Alipio resents him on account of his having children with another woman.
It is basic precept that relationship per se of a witness with the victim does not necessarily mean he is biased.
The Court finds improbable and contrary to human experience accused-appellant's claim that Alipio testified
for no other purpose but revenge. It was not shown that Alipio was actuated by improper motive, thus, his
testimony is entitled to full faith and credit.
The testimony of Charmaine that she saw accused-appellant, her father, hide a gun under his bed, leads us to
believe that accused-appellant killed his own wife. Accused-appellant cannot escape criminal liability on his
theory that when Charmaine testified for the prosecution, her testimony did not appear to be a naturally
spontaneous narration, but rather evidently a coached one. According to him, this theory was bolstered when
she cried and suddenly, embraced accused-appellant in public view.
On the contrary, the fact that Charmaine cried during her testimony is mute evidence of her credibility, this,
being in accord with human behavior and nature. It must have been a most traumatic and painful experience
for her, at a very tender age, to testify in court against her own father whom she loves and respects as shown
by the act of embracing him.
Accused-appellant virtually banks, for acquittal, on Charmaine's retraction. But the trial court correctly
disregarded the same. The first time Charmaine took the witness stand was in December, 1988, barely a month
after her mother's death. Her recantation was made two years later when she was already in the custody of
accused-appellant who was allowed to go out on bail. Charmaine's first testimony was to the effect that she
saw her father, accused-appellant, hiding a gun under the bed, and her subsequent testimony was that she saw
no such act. Such contradictory statements should not discredit Charmaine as a witness. The present rule is
that testimony of a witness may be believed in part and disbelieved in part, depending upon the corroborative
evidence and probabilities and improbabilities of the case (People vs. Cura, 240 SCRA 234 [1995]).
Moreover, mere retraction by a prosecution witness does not necessarily vitiate the original testimony.
Testimony solemnly given in court should not be set aside and disregarded lightly, and before this can be
done, both the previous testimony and the subsequent one should be carefully compared and juxtaposed, the
circumstances under which each was made carefully and keenly scrutinized, and the reasons or motives for the
change discriminalingly analyzed (Molina v. People, 259 SCRA 138 [1996]).
The trial court believed that the testimony given by Charmaine for the defense did not alter her former
testimony for the prosecution. The second declaration was received with caution, and it did not impressed the
3

trial court. Neither are we persuaded to hold otherwise for it must be borne in mind that Charmaine was living
with and defendent upon her father, accused-appellant, at the time she gave her second declaration.
Another fact which militates against accused-appellant's denial that he killed his wife is that the palaffin test
conducted on him yielded positive results. Notably, this test was conducted a day after the shooting incident.
Accused-appellant also denied having and possessed the .38 colt revolver with Serial Number 41001, the fatal
weapon, and even implied that the, gun belongs to the victim. According to accused-appellant, there had been
a dispute between him and his wife over the unlicensed .38 caliber gun which his wife carried wherever she
went, and not about the fact that his wife was having an illicit relationship with another man.
But this claim is belied by the overwhelming evidence pointing to accussed-appellant as the possessor of the
fatal weapon. Charmaine testified thal the fatal gun, when exhibited in court, was the gun she saw on the night
her mother was not shot. And weeks earlier, she said, it was the same gun which she saw with his father.
Defense witness, Antonio Gabac, when asked by the Las Pias police investigators to surrender the gun,
claimed that the same was surrendered to him by accused-appellant shortly after the shooting incident. The
possession of the fatal gun by accused-appellant is further established by the memorandum receipt signed by
accused-appellant himself and a mission order authorizing him to carry the said weapon (p. 66, Rollo). But
accused-appellant claims that these documents were illegally procured in grave violation of his constitutional
right to privacy of communication and papers, and/or his right against unreasonable search and seizure (p.
154, ibid.).
The Solicitor General is correct in explaining that such rights applies as a restraint directed only against the
government and its agencies. The case in piont is People vs. Marti (193 SCRA 57 [1991]) where this Court
had the occasion to rule that the constitutional protection against unreasonable searches and seizures refers to
the immunity of one's person from interference by government and it cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion.
In the instant case, the memorandum receipt and mission order were discovered by accused-appellant's fatherin-law Alipio Eusebio, a private citizen. Certainly, a search warrant is dispensable.
Finally, contrary to accused-appellant's claim that he was licensed and authorized to carry a .45 caliber pistol,
the certification of Captain Abraham Garcillano, Chief, Records, Legal and Research Branch of the Firearm
and Explosive Unit, dated December 29, 1989, shows that accused-appellant is not a licensed fiream holder of
any kind (p. 69, Rollo).
While admittedly there is no direct evidence presented by the prosecution on the killing of Cecilia by accusedappellant, the establishment abovestated, however, constitute an unbroken chain, consistent with each other
and with the hypotheses that accused-appellant is guilty, to the exclusion of all other hypotheses that he is not.
And when circumstancial evidence constitutes an unbroken chain of natural and rational circumstances
corroborating each other, it cannot be overcome by inconcrete and doubtful evidence submitted by the accused
(People vs. Verano, 264 SCRA 546 [1996]). The unbelievable story of accused-appellant that the killing was
perpetrated by the "smuggling syndicate's man" is all too plainly a mere concoction of accused-appellant
designed to exculpate himself from criminal liability.
Although the prosecution duly established that the crime of illegal possession of firearm under Presidential
Decree No. 1866 was committed, fortunately for accussed-appellant, Republic Act No 8294 which took effect
on July 7, 1997 amended the said decree and the law now merely considers the use of an unlicensed firearm as
an aggravating circumstance in murder or homicide, and not as a separate offense (People vs. Molina, G.R.
No. 115835-36, July 22, 1998 ).
Withal, accused-apppellant may be held liable only for parricide with the special aggravating circumstance of
use of an unlicensed firearm. This notwitastanding, that is, despite the presence of such aggravating

circumstance, the penalty imposed for the crime of parricide which is reclusion perpetua, may no longer be
increased. The death penalty cannot be imposed upon accused-appellant since the killing occurred in
November, 1988, when the imposition of the capital penalty was still proscribed.
WHEREFORE, except as above modified, the appealed decision is hereby AFFIRMED, without special
pronouncement as to costs.1wphi1.nt
SO ORDERED.
G.R. No. 119005 December 2, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SABAS RAQUEL, VALERIANO RAQUEL and AMADO PONCE, accused.
SABAS RAQUEL and VALERIANO RAQUEL, accused-appellants.
REGALADO, J.:p
The court a quo found herein accused-appellants Sabas Raquel and Valeriano Raquel, as well as accused
Amado Ponce, guilty of the crime of robbery with homicide and sentenced them to suffer the penalty
ofreclusion perpetua, to pay the heirs of Agapito Gambalan, Jr. the sum of P50,000.00 as indemnity for his
death, and the amount of P1,500.00 representing the value of the stolen revolver. 1 The Raquel brothers now
plead for their absolution in this appellate review.
In an information dated August 27, 1986, the aforementioned accused were indicted for robbery with homicide
before the Regional Trial Court of Kabacan, Cotabato, Branch 16, 2 allegedly committed on July 4, 1986 in
Barangay Osias of the Municipality of Kabacan.
Upon arraignment thereafter, all the accused pleaded not guilty. While trial was in progress, however, and
before he could give his testimony, accused Amado Ponce escaped from jail. 3
The factual antecedents of the case for the People, as borne out by the evidence of record and with page
references to the transcripts of the court hearings, are summarized by the Solicitor General in the appellee's
brief:
At midnight of July 4, 1986, tragedy visited the peaceful lives of spouses Juliet and Agapito Gambalan, Jr.
Thinking of a neighbor in need, Agapito attended to the person knocking at the backdoor of their kitchen.
Much to his surprise, heavily armed men emerged at the door, declared a hold-up and fired their guns at him.
(pp. 4-6, TSN, January 25, 1988)
Juliet went out of their room after hearing gunshots and saw her husband's lifeless (sic) while a man took her
husband's gun and left hurriedly. (p. 7, ibid.)
She shouted for help at their window and saw a man fall beside their water pump while two (2) other men ran
away. (p. 9, ibid.)
George Jovillano responded to Juliet's plea for help. He reported the incident to the police. The police came
and found one of the perpetrators of the crime wounded and lying at about 8 meters from the victim's house.
He was identified as Amado Ponce. (pp. 5-7, TSN, October 21, 1987; pp. 8-9, TSN, March 21, 1988)
4

Amado Ponce was first treated at a clinic before he was brought to the police station. (p. 27, ibid.)
Amado Ponce revealed to P/Sgt. Andal S. Pangato that appellants Sabas and Valeriano Raquel were the
perpetrators of the crime and that they may be found in their residence. However, the police failed to find them
there since appellants fled immediately after the shooting incident. (pp. 12-14, ibid.)

Q: You said you shouted right after the incident and pip (sic) at the window, did you see any when you pip
(sic) at the window?
A; Yes, sir.
Q: What did you see if you were able to see anything?

Appellants were later on apprehended on different occasions. (pp. 5-6, TSN, April 2, 1991) 4
Upon the other hand, appellants relied on alibi as their defense, on the bases of facts which are presented in
their brief in this wise:
Accused Valeriano Raquel testified that on July 2, 1986, with the permission of his parents he left Paatan,
Kabacan, Cotabato and went to Tunggol Pagalungan, Maguindanao. He stayed in the house of his sister-inlaw, the wife of his deceased brother. Together with Boy Madriaga and Corazon Corpuz, he harvested palay
on July 3 and 4. On July 5, while he was still asle(ep), police authorities accompanied by his father arrested
him and brought him to the municipal jail of Kabacan, Cotabato. He already heard the name of accused
Amado Ponce, to be an owner of a parcel of land in Paatan.
On cross-examination, he admitted that their house and that of Gambalan are located in the same Barangay.
Before July 4, he entertained no grudge against victim Agapito Gambalan. (TSN, April 2, 1991, pp. 2-20).

A: I saw a person who fel(l) down beside the water pump and I saw again two (2) persons who were running
away, sir.
Q: Were you able to identify this persons who fel(l) down near the jetmatic pump and two (2) persons running
away?
xxx xxx xxx
Q: Now, you said somebody fel(l) down near the jetmatic pump, who is this person?
A: I do not know sir. I have known that he was Amado Ponce when the Police arrived. 10(emphasis ours.)
On cross-examination she further testified:

Antonio Raquel, 64 years old, testified that on July 2, 1986 he was at home when his son Valeriano Raquel
told him that he was going to Tungol, Pagalungan, Maguindanao to harvest palay. On (the) same date, his
other son, Sabas Raquel, also asked his permission to leave since the latter, a soldier, was going to his place of
assignment at Pagadian. On July 5, 1986, several policemen came over to his house, looking for his two (2)
sons. He gave them pictures of his sons and even accompanied them to Tungol where they arrested his son
Valeriano. (TSN, April 3, 1991, pp. 3-26).
T/Sgt. Natalio Zafra, of the 102 Brigade, Aurora, Zamboanga, testified that on July 4, 1986, he was assigned
in the 2nd Infantry Battalion, First Infantry Division, Maria Cristina, Iligan City. Sabas Raquel was under his
division then, and was on duty on July 4, 1986. (TSN, Nov. 6, 1992, pp. 2-20). 5
On August 10, 1993, the trial court, as stated at the outset, rendered judgment finding all of the accused guilty
beyond reasonable doubt of the crime charged and sentenced them accordingly. 6
Not satisfied therewith, herein appellants filed a notice of appeal wherein they manifested that they were
appealing the decision to the Court of Appeals. 7 The lower court ordered the transmittal of the records of the
case to the Court of Appeals. 8 In view of the penalty imposed, the Court of Appeals properly forwarded the
same to us. 9

Q: For the first time when you shouted for help, where were you?
A: I was at the Veranda sir and I started shouting while going to our room.
Q: In fact you have no way (of) identifying that one person who was mask(ed) and got the gun of your
husband because he was mask(ed), is that not right?
A: Yes, sir.
Q: In fact, you saw only this one person got inside to your house and got this gun?
A: Yes, sir.
Q: And this Amado Ponce cannot be the person who have got this gun inside?
FISCAL DIZON:

Before us, the defense submits a lone assignment of error, i.e., that the trial court erred in convicting accused
Sabas Raquel and Valeriano Raquel of the crime charged, despite absence of evidence positively implicating
them as the perpetrators of the crime.

Already answered.

We find such submission to be meritorious. A careful review and objective appraisal of the evidence
convinces us that the prosecution failed to establish beyond reasonable doubt the real identities of the
perpetrators of, much less the participation of herein appellants in, the crime charged.

She was not able to identify, your Honor.

The lone eyewitness, Juliet Gambalan, was not able to identify the assailants of her husband. In her testimony
on direct examination in court she declared as follows:

A: Yes, sir. 11

Q: You only saw this Amado Ponce when (h)e was presented to you by the police, is that right?

xxx xxx xxx

5

Q: You testified in direct testimony you pip (sic) in jalousie after you shouted for help and you saw two (2)
person(s) running, is that right?
A: Yes, sir.
Q: Now, you saw these persons running on the road, is that not right?
A: I saw them running sir going around.
Q: These two (2) persons were running going around?
A: They were running towards the road.

Extreme caution should be exercised by the courts in dealing with the confession of an accused which
implicates his co-accused. A distinction, obviously, should be made between extrajudicial and judicial
confessions. The former deprives the other accused of the opportunity to cross-examine the confessant, while
in the latter his confession is thrown wide open for cross-examination and rebuttal. 15
The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or
omission of another. An extrajudicial confession is binding only upon the confessant and is not admissible
against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a
man's own acts are binding upon himself, and are evidence against him. So are his conduct and declarations.
Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the
acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought
their acts or conduct be used as evidence against him. 16
Although the above-stated rule admits of certain jurisprudential exceptions, 17 those exceptions do not
however apply to the present case.

ATTY. DIVINO:
Going to the road.
Q: And you cannot identify these two (2) persons running towards the road?
A: No, sir. 12 (Emphases supplied.)
Even the corroborating witness, George Jovillano, in his testimony made no mention of who shot Agapito
Gambalan. In fact, in his sworn statement executed in the Investigation Section of the Kabacan Police Station
on July 5, 1986, he declared that:
19Q: By the way, when you saw three persons passing about 5 meters away from where you were then
drinking, what have you noticed about them, if you ever noticed any?
A: I noticed that one of the men ha(d) long firearm which was partly covered by a maong jacket. The other one
wore a hat locally known as "kipis" meaning a hat made of cloth with leaves protruding above the forehead
and seemed to be holding something which I failed to recognize. The other one wore a shortpant with a
somewhat white T-shirt with markings and there was a white T-shirt covering his head and a part of his face as
he was head-down during that time.
20Q: Did you recognized any of these men?
A: No. Because they walked fast. 13 (Emphasis supplied.)

Firstly, except for that extrajudicial statement of accused Amado Ponce, there exists no evidence whatsoever
linking appellants to the crime. In fact, the testimony of police Sgt. Andal S. Pangato that appellant Sabas
Raquel was wounded and went to the clinic of Dr. Anulao for treatment using the name Dante
Clemente, 18 was negated by Dr. Anulao himself who testified that he treated no person by the name of Danny
Clemente. 19
Secondly, this extrajudicial statement, ironically relied upon as prosecution evidence, was made in violation of
the constitutional rights of accused Amado Ponce. This was unwittingly admitted in the testimony of the same
Sgt. Andal S. Pangato who was the chief of the intelligence and investigation section of their police station:
Q: During the investigation did you inform him (of) his constitutional right while on the process of
investigation?
A: No sir, because my purpose was only to get the information from him . . . And after that I checked the
information that he gave.
Q: Of course, you know very well that the accused should be assisted by counsel?
A: What I know is if when a person is under investigation you have in mind to investigate as to against (sic)
him, and you have to inform his constitutional right but if the purpose is to interrogate him to acquire
information which will lead to the identity of the other accused we do not need to inform him.
Q: Don't you know that under the case of PP vs. Galit; the accused should be (re)presented by counsel that is
the ruling of the Supreme Court?

A thorough review of the records of this case readily revealed that the identification of herein appellants as the
culprits was based chiefly on the extrajudicial statement of accused Amado Ponce pointing to them as his coperpetrators of the crime. As earlier stated, the said accused escaped from jail before he could testify in court
and he has been at large since then.

A: I do not know if it is actually the same as this case.

The extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter,
unless these are repeated in open court. If the accused never had the opportunity to cross-examine his coaccused on the latter's extrajudicial statements, it is elementary that the same are hearsay as against said
accused. 14 That is exactly the situation, and the disadvantaged plight of appellants, in the case at bar.

A: No sir.

Q: But it is a fact that you did not even inform him (of) his right?

Q: At the time when you asked him he has no counsel.

A: No counsel, Sir. 20
6

Extrajudicial statements made during custodial investigation without the assistance of counsel are inadmissible
and cannot be considered in the adjudication of the case. While the right to counsel may be waived, such
waiver must be made with the assistance of counsel. 21 These rights, both constitutional and statutory in source
and foundation, were never observed.
A conviction in a criminal case must rest on nothing less than a moral certainty of guilt. 22 Without the positive
identification of appellants, the evidence of the prosecution is not sufficient to overcome the presumption of
innocence guaranteed by the Bill of Rights to them. 23 While admittedly the alibi of appellants may be
assailable, the evidence of the prosecution is probatively low in substance and evidentiarily barred in part. The
prosecution cannot use the weakness of the defense to enhance its case; it must rely on the strength of its own
evidence. In fact, alibi need not be inquired into where the prosecution's evidence is weak. 24
It would not even have been necessary to stress that every reasonable doubt in criminal cases must be resolved
in favor of the accused. The requirement of proof beyond reasonable doubt calls for moral certainty of guilt. In
the instant case, the test of moral certainty was neither met nor were the standards therefor fulfilled.
WHEREFORE, on reasonable doubt, the appealed judgment is REVERSED and accused-appellants Sabas
Raquel and Valeriano Raquel are hereby ACQUITTED of the offense charged, with costs de oficio.

3. Later that day, at around four o'clock in the afternoon, Barangay Captain Aristeo Allarey of Barangay
Ilayang Tayuman was visited in his house by Mila de la Cruz, Dyesebel's mother, who reported that her
daughter was missing. Allarey sought the assistance of his constituents and organized a search party composed
of the members of the Sangguniang Barangay, a Barangay Tanod, Dyesebel's father Gonzalo dela Cruz, and
other residents of the barangay. Prosecution witnesses Bayani Samadan, a Kagawad of the Sangguniang
Barangay and Reynaldo Merle, a "barangay tanod," were among the searchers (pp. 10-13, tsn, Allarey,
February 5, 1991; p. 24, tsn, De la Cruz, February 5, 1991; pp. 6-7, tsn, Merle, July 18, 1991; pp. 4-7, tsn,
Samadan, September 17, 1991).
4. Barangay Captain Allarey learned from Gonzalo de la Cruz that, earlier, Dyesebel was in the company of
accused-appellant Vicente Valla, and that both of them were tasked to watch the ricefield. They went to the
ricefield but appellant was not there. Allarey learned from a barangay tanod that appellant was drinking liquor
in the house of a friend within the same barangay. He summoned appellant but the latter failed to immediately
report to him. (pp. 14-15, and 20, tsn, Allarey, February 5, 1991).1wphi1.nt
5. That afternoon, Allarey and his party started their search but they had to stop at around 6:30 in the evening
since it was already dark. The following day, they continued their search for Dyesebel, (p. 12, tsn, Allarey,
February 5, 1991; pp. 7-8, tsn, Merle, July 18, 1991).

SO ORDERED.
G.R. No. 111285

headed for. After discharging her bananas at the crossing, she went home. (pp. 5-6, tsn, Pines, February 5,
1991).

January 24, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VICENTE VALLA1, accused-appellant.
QUISUMBING, J.:
On appeal is the decision dated March 29, 1993 of the Regional Trial Court of Gumaca, Quezon, Branch 62,
convicting appellant of the crime of rape with homicide, imposing upon him the penalty of reclusion perpetua,
and ordering him to pay the heirs of the victim the amount of P50,000.00 as indemnity and P30,000.00 as
actual and moral damages.
Appellant was 28 years old, married, cousin of the victim, and resident of Barangay Tayuman, San Francisco,
Quezon, at the time of incident. The victim was an eight (8) year-old girl, Dyesebel "Gigi" de la Cruz, who
was reported missing and the following day found raped and strangled to death near the riverbank of the
Tayuman river in Quezon province.
The facts, as summarized by the Office of the Solicitor General, which we find to be supported by the records,
are as follows:
1. On April 14, 1991, at around nine o'clock in the morning, Myra Pines, a twelve-year old girl, was passing
by the ricefield near the road located at Barangay Ilayang Tayuman in the Municipality of San Francisco,
Quezon Province. She was carrying bananas on her way to the crossing in said municipality. (pp. 3-6, Pines,
February 5, 1991).
2. As she passed by the ricefield, she heard a voice coming from the direction of the forested area of the place
and it seemed to her that someone was being strangled. Listening closely, she recognized the voice as
belonging to her friend and playmate, Dyesebel de la Cruz, an eight-year old girl. Frightened at the thought
that Dyesebel was being strangled, Myra scampered and proceeded to the crossing where she was originally

6. While Allarey, De la Cruz and the rest of their companions were searching for Dyesebel, they were joined
by appellant who trailed behind them. Earlier, appellant spoke to Allarey and told him that he knew nothing
about Dyesebel's whereabouts. (pp. 15-16, tsn, Allarey, February 5, 1991; p. 24, tsn, De la Cruz, February 5,
1991; p. 13, tsn, Merle, July 18, 1991; pp. 8-9, tsn, Samadan, September 17, 1991).
7. At around 11:00 o'clock in the morning of that day, they finally found Dyesebel. Her body was found near
the river with her neck blackened and her vagina bloodied. She was still wearing her dress but her panty had
been pulled down to her mid-thigh. (pp. 13-14, tsn, Allarey, February 5, 1991; p. 23, tsn, De la Cruz, February
5, 1991; pp. 8-9, tsn, Merle, July 18, 1991; pp. 7-8, tsn, Samadan, September 17, 1991).
8. Allarey and his companions immediately confronted appellant who, out of remorse, admitted that he raped
and killed Dyesebel. Thereafter, he addressed Dyesebel's father, in the presence of Allarey and company,
offering his own daughter in payment of Dyesebel's life which he took and begged for forgiveness. De la Cruz
told appellant that he cannot accept appellant's daughter and, thereafter, tried to unsheath his bolo. But before
De la Cruz could attack appellant, he was held back by the people around him. Appellant was ordered arrested
by Allarey. (pp. 16-17 and 21, tsn, Allarey, February 5, 1991; pp. 24-26 and 28, tsn, De la Cruz, February 5,
1991; pp. 11 and 18, tsn, Merle, July 18, 1991; pp. 9-11 and 13-14, tsn, Samadan, September 17, 1991).
9. That same day, at around one o'clock in the afternoon, Allarey, accompanied by Samadan, Merle, De la
Cruz, and one Abelardo Rego, brought appellant to the police headquarters in San Francisco, Quezon. (pp. 5-6,
tsn, Rosales, November 6, 1991; p. 17, tsn, Allarey, February 5, 1991).
10. Dyesebel's body was brought to the Bondoc Peninsula District Hospital in Catanauan, Quezon, where an
autopsy was performed. Dyesebel's skull bore a depression on the left temporal area which resulted from being
struck with a hard object. Her pubic area bore blisters brought about by a contact with a lighted cigarette. Her
hymen bore several lacerations indicative of repeated rape before and possibly, after she was killed. (pp. 4-6,
tsn, Madatu, January 14, 1992).2
On August 14, 1990, appellant was charged with the crime of "rape with murder" under the following
Information:3
7

The undersigned upon complaint originally filed with the Municipal Circuit Trial Court of San Francisco-San
Andres, by Gonzalo de la Cruz, father of the offended party Dyesebel de la Cruz, accuses Vicente Valla
(prisoner, (sic) of the crime of rape with murder, committed as follows:
That on or about the 14th day of April 1990, at Barangay Ilayang Tayuman, in the Municipality of San
Francisco, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused with lewd design, by means of force and violence, did then and there willfully, unlawfully and
feloniously have carnal knowledge of one Dyesebel de la Cruz, a minor, 8 years of age, against her will; that
by reason, and on the occasion of said rape, the said accused with intent to kill and with treachery and taking
advantage of his superior strength, did then and there willfully, unlawfully and feloniously attack, assault and
employ violence against said Dyesebel de la Cruz, thereby inflicting upon the latter injuries on vital parts of
her body, which directly caused her death.
Contrary to law.
Upon arraignment, appellant, duly assisted by counsel de oficio Atty. Ronaldo Salamillas, entered a plea of not
guilty to the crime charged.4 Trial on the merits ensued.
The prosecution presented the following witnesses: (1) Myra Pines, the victim's 12 year-old playmate, who
heard the victim's cries as she was being strangled, but became afraid and went home instead; (2) Aristeo
Allarey, the Barangay Captain of Ilayang, Tayuman, San Francisco, Quezon, who organized a search party
upon report of the mother that her daughter was missing, and before whom, appellant admitted that he raped
and killed the victim, and even offered his (appellant's) daughter in return; (3) Gonzalo de la Cruz, father of
the victim, who took part in the search party, and who witnessed appellant's confession to the commission of
the crime; (4) Reynaldo Merle, Barangay Tanod of Barangay Ilayang, Tayuman, San Francisco, Quezon,
another member of the search party; (5) Bayani Samadan, Kagawad of the Barangay, also a member of the
search party; (6) Rodolfo Rosales, police investigator of San Francisco, Quezon, Philippine National Police;
(7) Dr. Araceli R. Madatu, Senior Resident Physician of Bondoc Peninsula District Hospital, Catanauan,
Quezon, who testified that when the cadaver was brought for examination, it was in cadaveric rigidity, the legs
were spread like a woman about to give birth ("parang nanganganak"), the tongue sticking out ("nakalawit"),
the skull crushed ("basag"), and the pubic area had blisters resulting from cigarette burns, ("pinagpapaso ng
sigarilyo"), and the vagina had a laceration up to the anus, evidencing that the child was raped.5
In addition to the oral evidence, the prosecution offered as documentary evidence the sworn statements of
Barangay Captain Aristeo Allarey and Gonzalo de la Cruz, the Criminal Complaints filed with the Municipal
Trial Court of San Francisco, San Andres, Quezon, and the Medico-legal Certificate signed by Dr. Madatu.
On the other hand, the defense presented as its witnesses (1) appellant himself who bluntly denied any
participation in the rape/killing of the victim, or that he made any confessions to the barangay captain; he
interposed the defense of alibi that at the time of the alleged rape/killing, he was at his house in Barangay
Ilayang Tayuman, San Francisco, Quezon together with his wife, their child and his brother, caring for his sick
child,6 and (2) his father Emilio Valla, who corroborated his story.7 The defense offered no documentary
evidence.
On March 29, 1993, the trial court rendered a decision 8 finding appellant guilty of the crime of "rape with
homicide," the dispositive portion of which reads:
WHEREFORE, premises considered, the fact that the government has proved beyond an iota of a doubt that
the accused is guilty, sentences him to suffer an imprisonment of RECLUSION PERPETUA.
Further the accused is ordered to indemnify the heirs of the late Dyesebel de la Cruz the sum of P50,000.00 for
her death and P30,000.00 for actual and moral damages.

SO ORDERED.
Hence, the present appeal. Appellant assigns the following errors:9
I. THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE CONFLICTING
AND IMPROBABLE TESTIMONIES OF THE PROSECUTION WITNESSES.
II. THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE
DOUBT DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.
In his brief, appellant claims that the testimony of prosecution witness Allarey was inconsistent since on direct
examination, Allarey narrated that when he summoned appellant, the latter did not immediately appear, 10 but
on cross-examination, he said that appellant immediately reported to him. 11 Appellant also contends that
Merle's testimony that appellant was "tulala" at the time he confessed to the commission of the crime12 was
inconsistent with appellant's alleged begging for forgiveness far the crime. 13 Further, appellant adds that his
statement offering to exchange his own daughter for the victim was made because of compulsion from the
crowd. Appellant further insists that his alibi should be given due consideration since the prosecution failed to
overturn his alibi which was duly corroborated by the testimony of his father.
The Office of the Solicitor General, on the other hand, recommends affirmance of the judgment in toto. The
OSG contends that the alleged inconsistencies, assuming them to be so, are too minor and insignificant to
destroy the credibility of said prosecution witnesses, particularly where the testimonies of all the prosecution
witnesses are consistent and compatible with each other on material points. Anent the defense of alibi, the
OSG points out that appellant's house is located within the same barangay where the incident took place,
therefore there is no physical impossibility regarding his commission of the crime.
In sum, the crucial issue centers on the assessment of credibility of the witnesses. In this case, the trial court
gave full faith and credence to the testimonies of the prosecution witnesses. We find no reason to disturb this
finding. As consistently held by the Court, the trial judge's evaluation of the testimony of a witness is
generally accorded not only the highest aspect, but also finality, unless some weighty circumstance has been
ignored or misunderstood but which could change the result. Having had the direct opportunity to observe the
witness on the stand, the trial judge was in a vantage position to assess his demeanor, and determine if he was
telling
the
truth
or
not.14
The alleged inconsistency in the testimony of Allarey as to whether appellant immediately reported to him
after being summoned, and in the testimony of Merle that appellant was "tulala" at the time he admitted
responsibility for the crime, merely refer to minor details which do not in actuality touch upon the "whys" and
"wherefores" of the crime committed.15 Inconsistencies in the testimony of witnesses when referring only to
minor details and collateral matters do not affect the substance of their declaration, their veracity, or the
weight of their testimony. Although there may be inconsistencies on minor details, the same do not impair the
credibility of the witnesses where there is consistency in relating the principal occurrence and positive
identification of the assailants.16 In fact, some minor inconsistencies could show that the witness was not
previously coached so as to tailor his testimony, and thus they serve as badges of credibility.
Further, the prosecution witnesses, particularly the barangay officials, had no motive to falsely testify against
appellant, who is their townmate, nor did they have any reason to impute such a heinous crime against
appellant if it were not true. Appellant's claim that he was implicated in the crime "because he did not
immediately accomplish the cutting of the grass in the ricefield"17 is too preposterous to even merit
consideration.

More importantly, the declaration of appellant acknowledging his guilt of the offense may be given in
evidence against him under Section 33 of Rule 130 of the Revised Rules of Court. Note that his extrajudicial
confession is corroborated by the corpus delicti as required by Section 3 of Rule 133. The Rules do not require
that all the elements of the crime must be clearly established by evidence independent of the
confession. Corpus delicti only means that there should be some concrete evidence tending to show the
commission of the crime apart from the confession. In this case, the fact of the crime was sufficiently proven
through the testimonies by witnesses such as Myra Pines, who heard the cries of the victim, and the other
members of the search party who found the body of the victim, and witnessed the confession of the appellant,
as well as documentary evidence presented during trial such as the medico-legal certificate (Exhibit "D")
attesting that the victim had been raped and killed.
The statement of the accused asking for forgiveness and even offering his own daughter in exchange for his
crime18 may also be regarded as part of the res gestae under Section 42 of Rule 130 of the Rules of Court. Res
gestae means "things done".19 There are three requisites to admit evidence as part of the res gestae: (1) that the
principal act, the res gestae, be a startling occurrence, in this case the discovery of the body of the victim; (2)
the statements were made before the declarant had the time to contrive or devise a falsehood, in this case,
appellant had begged for forgiveness immediately after the body was found; and (3) that the statements must
concern the occurrence in question and its immediate attending circumstances, in this case, appellant had
admitted to raping and killing the victim, and even "offered" his daughter in exchange for the victim.20
Appellant's defense of denial and alibi is likewise riddled with glaring inconsistencies. During his testimony,
he claimed that on the night of the incident, he was at home with his wife and brother, taking care of his sick
child, and emphatically declared that nobody else was with them. 21 However, appellant's father testified that he
was also with appellant at the time of the incident, creating a doubt regarding his alibi. Although appellant's
father initially denied knowing the victim, he later admitted that he knew her as the daughter of Gonzalo de la
Cruz.22 Evidently, appellant's defense was fabricated in a desperate attempt to exculpate him.
As to the crime committed, the trial court correctly convicted appellant of the special complex crime of "rape
with homicide," and not "rape with murder" as designated in the Information, since "homicide" is herein taken
in its generic sense.
The aggravating circumstance of ignominy under Article 14, No. 17 of the Revised Penal Code should be
appreciated considering that the medico-legal officer testified that the pubic area of the victim bore blisters
brought about by a contact with a lighted cigarette. This circumstance added disgrace and obloquy to the
material injury inflicted upon the victim of the crime.23
At the time of the commission of the crime, Art. 335 of the Revised Penal Code imposed the penalty of death
when by reason or on the occasion of the rape, homicide is committed. However, the 1987 Constitution
suspended the imposition of death penalty, and therefore, the trial court correctly imposed the penalty
of reclusion perpetua.
As to the amount of damages, however, the trial court erred in awarding P50,000.00 only as indemnity and
P30,000.00 for actual and moral damages. Hence, correction is called for. This being a case of rape with
homicide, civil indemnity in the amount of P100,000.00 should be awarded, pursuant to current
jurisprudence.24Moral damages in the amount of P50,000.00 should also be awarded to the heirs of the victim,
without need of further proof.25 In view of the attendance of one aggravating circumstance, exemplary
damages in the amount of P20,000.00 should likewise be awarded, pursuant to Article 2230 of the New Civil
Code. But the award of actual damages cannot be allowed for lack of supporting evidence.

SO ORDERED.
G.R. No. 110290 January 25, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME "JIMMY" AGUSTIN, WILFREDO "SONNY QUIAO, MANUEL "JUN" ABENOJA, JR.,
and FREDDIE "BOY" CARTEL, accused. JAIME "JIMMY" AGUSTIN, accused-appellant.

DAVIDE, JR., J.:

In five separate informations filed on 22 May 1987 with the Regional Trial Court (RTC), Branch 3, Baguio
City, the accused were charged with murder in Criminal Cases Nos. 4647-R and 4648-R, with frustrated
murder in Criminal Case No. 4649-R, and with attempted murder in Criminal Cases Nos. 4650-R and 4651-R.
The crimes were allegedly committed on 6 September 1986 in Baguio City and resulted in the deaths of Dr.
Napoleon Bayquen and Anna Theresa Francisco and the wounding of Anthony Bayquen, Dominic Bayquen,
and Danny Ancheta.
The informations in the murder cases charged that the accused acted in conspiracy and alleged the presence of
the qualifying circumstance of treachery and the ordinary aggravating circumstances of evident premeditation
and price. 1
Only the appellant and Wilfredo Quiao were arrested. However, before Quiao could be arraigned, he
escaped on 12 July 1987 while under the custody of the Philippine Constabulary/PNP Regional Command I at
Camp Dangwa, La Trinidad, Benguet. 2 The cases, which were consolidated and jointly tried, proceeded only
against the appellant.
After the appellant pleaded not guilty at his arraignment on 4 September 1987, trial on the merits was held on
various dates from 11 May 1988 until 10 January 1990.
On 30 May 1990, the trial court promulgated its decision 3 in the consolidated cases acquitting the appellant in
Criminal Case No. 4649-R (frustrated murder) and Criminal Cases Nos. 4650-R and 4651-R (attempted
murder) for insufficiency of evidence but convicting him in the two murder cases, Criminal Cases Nos. 4647R and 4648-R, with treachery as the qualifying circumstance. 4 It also ruled that the aggravating circumstances
of evident premeditation and price had been duly established. It then sentenced the appellant as follows:
Upon these premises, the accused Jaime Agustin is found GUILTY of two (2) counts of murder, the
prosecution having proven his guilt beyond reasonable doubt. In each of the criminal cases aforesaid, he
should be sentenced to the maximum penalty of Death, there being two aggravating circumstances. However,
since the death penalty is not imposable at this time, the accused is sentenced to Reclusion Perpetua. He is
further ordered to indemnify the heirs of the victims; Anna Theresa Francisco the sum of sixty Three
Thousand Pesos (P63,000.00) as actual damages (Exhibits "F," "I" and "G"); and Dr. Napoleon Bayquen, the
sum of Thirty Thousand Pesos (P30,000.00). With costs against the accused, Jaime Agustin.
SO ORDERED. 5

WHEREFORE, the assailed decision of the Regional Trial Court of Gumaca, Quezon, Branch 62 is
AFFIRMED with MODIFICATIONS. Appellant VICENTE VALLA is hereby sentenced to reclusion
perpetua and ordered to pay the heirs of the victim the amount of P100,000.00 as civil indemnity, P50,000.00
as moral damages, and P20,000.00 as exemplary damages. Costs against appellant.1wphi1.nt

The version of the prosecution is based on the testimonies of (1) Isidoro Magpantay, a member of the Baguio
City Police Force, who identified the initial report (Exhibit "A"); (2) Christie Napeas, a stenographic reporter
in the Office of the City Fiscal of Baguio City, who took down the stenographic notes of City Fiscal Erdolfo
9

Balajadia's investigations of accused Wilfredo Quiao (Exhibit "D") on 30 January 1987 and of the appellant
on 10 February 1987, and who identified her stenographic notes containing the statement of the appellant
(Exhibit "B") and the transcript of said stenographic notes (Exhibit "C"); (3) Dominic Bayquen, the victim in
Criminal Case No. 4650-R, who testified on how they were shot; (5) Eulogio Francisco, the father of Anna
Theresa Francisco, who identified her death certificate (Exhibit "I") and testified on the list of expenses
(Exhibit "G"); (6) Rogelio Mumar, a supervising ballistics expert, who declared that the fourteen shell
recovered from the scene of the crime were not fired from any of the three armalite rifles submitted to him; (7)
Atty. Reynaldo Cajucom, who testified that he was the lawyer who assisted the appellant and accused
Wilfredo Quiao while they were being investigated by City Fiscal Balajadia; and (8) Lilian San Luis
Bayquen, wife of Dr. Napoleon Bayquen and mother of Dominic Bayquen, who testified on what she did after
Dominic informed her by telephone about the shooting incident.
The evidence for the prosecution established the following facts. At past 7:30 p.m. of 6 September 1986 in
Baguio City, Dr. Napoleon Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend, Anna
Theresa Francisco; his daughter, Dominic; and Danny Ancheta, a family friend, were on their way aboard their
Brasilia to the doctor's residence at Trancoville at 21-D Malvar Street, Baguio City, from his driving the car.
While they were cruising along Malvar Street and nearing the Baptist church, a man came out from the right
side of a car parked about two meters to the church. The man approached the Brasilia, aimed his armalite rifle
through its window, and fired at the passengers. The Brasilia swerved and hit a fence. The gunman
immediately returned to the parked car which then sped away.
All those in the car were hit and Dr. Bayquen and Anna Theresa died on the spot. Dr. Bayquen's head was
blown off. Dominic was bale to get out of the Brasilia to run to the Alabanza store where she telephoned her
mother and told her what had happened. Later, she and her mother brought her father and Anthony to the
hospital. 6 Danny Ancheta went home and was then brought to the Notre Dame Hospital for treatment. 7 Anna
Theresa Francisco was brought to the funeral parlor. 8 The police later arrived at the crime scene and
conducted an investigation. they recovered some empty shells of an armalite rifle. 9
On 30 January 1987, accused Wilfredo "Sonny" Quiao, an alleged former military agent or "asset" who had
been picked up in La Union by the police authorities, confessed during the investigation conducted by Baguio
City Fiscal Erdolfo Balajadia in his office that he was the triggerman in the fatal shooting of Dr. Bayquen and
Anna Theresa Francisco. He implicated Manuel "Jun" Abenoja, Jr., allegedly a fellow military agent and the
"bagman" who engaged him to kill Dr. Bayquen for a fee, Freddie "Boy" Cartel, who provided the armalite,
and a certain "Jimmy." During the investigation, Wilfredo Quiao was assisted by Atty. Reynaldo Cajucom, a
representative of the Integrated bar of the Philippines (IBP). Ms. Christie Napeas, a stenographic notes of the
proceedings during the investigation. 10 Thereafter, she transcribed the notes and the transcription became the
sworn statement of Wilfredo Quiao which he signed, with the assistance of Atty. Cajucom, and swore to
before City Fiscal Balajadia. 11
In the morning of 10 February 1987, "Jimmy," who turned out to be appellant Jaime Agustin, was picked up in
Sto. Tomas, Pangasinan, by military personnel and brought to Baguio city. At 4:00 p.m. of that date, he was
taken to the office of City Fiscal Erdolfo Balajadia where he was investigated in connection with the crime.
Atty. Reynaldo Cajucom assisted the appellant during the investigation. Ms. Christie Napeas took down
stenographic notes of the proceedings during the investigation. The stenographic notes consisted of 22 pages
(Exhibit "B"), each of which was signed afterwards by the appellant and Atty. Cajucom. Ms. Napeas
subsequently transcribed these notes which the prosecution marked as Exhibit "C." The appellant narrated
therein his knowledge of the shooting of Dr. Bayquen and revealed the identities of his cohorts in the crime. In
a confrontation two days later, he identified Quiao as "Sony," the triggerman.
The defense presented the appellant and his wife, Elizabeth Agustin. The appellant, who is a farmer and whose
highest educational attainment was grad four, impugned the validity of his extrajudicial statement. he alleged
that in the morning of 10 February 1987, he went to Carmen, Pangasinan, to buy some fertilizer and upon his
return he was met by two armed men who took him to their car where two other companions, armed with
armalites, were waiting. They then brought him out of Pangasinan. He later learned that they were on their
way to Baguio City.

Inside the car, he was asked if he knew Boy and Jun, and he answered that he did not. Along Kennon Road, he
was made to stoop down at the back seat whenever they would reach a toll booth, and then brought out three
times near the ravines and made to kneel at gunpoint in order to force him to admit his involvement in the
shooting, which he finally did out of fear. Then he was brought to the Office of the City Fiscal of Baguio City.
While he was giving his statement at the fical's office, the armed men stayed with him and their presence
deterred him from telling the investigating fiscal that he was being threatened. He further declared that
although he was given a lawyer, Atty. Reynaldo Cajucom, to assist him, he, nevertheless, asked for his uncle
who is a lawyer, Atty. Oliver Tabin, and that Atty. Cajucom interviewed him from only two minutes in
English and Tagalog but not in Ilocano, the dialect he understands. Then later, at Camp Dangwa to where he
was taken, he told his wife to get in touch and talk with Atty. Tabin. Finally, he asserted that he was promised
by his captors that he would be discharged as a state witness if he cooperates, but the plan did not push
through because his co-accused, Quiao, escaped. 12
Elizabeth Agustin corroborated her husband's story that he went to Carmen in the morning of 10 February
1987 to buy some fertilizer and that he failed to return. Her efforts to locate him proved futile until days later
when she finally learned that he was detained at Camp Dangwa. 13
The trial court admitted the appellant's extrajudicial statement and gave scant consideration to his claim of
force, intimidation, and other irregularities because of the following reasons: (a) the presence of material
improbabilities in his tale of when and how he was allegedly taken at gunpoint from his hometown in
Pangasinan; (b) it was improbable that he was made to kneel thrice at gunpoint along Kennon Road
considering the vehicles which were passing along that road; (c) it was unbelievable that when he was in the
Fiscal's Office he asked for his uncle, Atty. Tabin if he could not go home for a period of one month; (d) no
less than the city Fiscal of Baguio City interrogated him and yet he did not tell the fiscal that he was being
forced to give a statement; (e) the fiscal even provided him with a lawyer who conferred with him and
apprised him of his rights; (f) he signed each and every page of the stenographic notes of his statement and this
was witnessed by no less than the City Fiscal of Baguio and the lawyer who assisted him; and (g) he disclosed
in his statement that he voluntarily gave it because of his ill feeling against his co-accused who did not give
him any money.
The trial court then concluded that "[t]here was conspiracy and the accused was a direct participant in the
crime," and that while he tried to minimize his culpability, his "extrajudicial confession" shows that "he was in
on the plan," and even "expected to be paid, to be rewarded monetarily"; and that he "decided to give a
statement only when he was not given the money." Since the proof of corpus delicti required in Section 3,
Rule 133 of the Rules of Court was established by the prosecution's evidence, it found his conviction for
murder inevitable.
The appellant filed a notice of appeal. In this brief, he imputes upon the trial court the commission of this lone
error:
THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN CONSIDERING ACCUSEDAPPELLANT'S EXTRAJUDICIAL CONFESSION AS ADMISSIBLE EVIDENCE AGAINST HIM. 14
The appellant insists that his extrajudicial confession was taken in violation of his rights under Section 11,
Article III of the constitution. He argues that the lawyer who assisted him, Atty. Reynaldo Cajucom, was not
of his own choice but was foisted upon him by the city Fiscal. Worse, the said lawyer is a law partner of the
private prosecutor, Atty. Arthur Galace, and conferred with him in English and Tagalog although he
understood only Ilocano. Moreover, when Atty. Cajucom briefly conferred with him and when the city Fiscal
interrogated him, his military escorts were present.
He stresses that the lawyer "who assists the suspect under custodial interrogation should be of the latter's
choice, not one foisted on him by the police investigator or other parties," 15 and that where there are serious
10

doubts on the voluntariness of the extrajudicial confession, the doubts must be resolved in favor of the
accused. 16 He then concludes that his extrajudicial confession is inadmissible and his conviction cannot stand,
there being no other evidence linking him to the crimes charged.
In its brief, 17 the appellee, reiterating the reasons of the trial court in upholding the validity of the confession,
prays for the affirmance of the appealed decision.
After a careful study of the records of Criminal Cases Nos. 4647-R and 4648-R and a painstaking evaluation
of the evidence, we find this appeal to be impressed with merit. Indeed, the extrajudicial admission not
extrajudicial confession of the appellant, which is the only evidence of the prosecution linking him to the
commission of the crime charged, is wholly inadmissible because it was taken in violation of Section 12,
Article III of the Constitution. We also see in these cases a blatant disregard of the appellant's right under
Section 2 of Article III when he was unlawfully arrested.
Before we go any further, it should be pointed out that, contrary to the pronouncement of the trial court and the
characterization given by the appellant himself, the assailed extrajudicial statement is not
extrajudicial confession. It is only an extrajudicial admission. We take this opportunity to once more
distinguish one from the other. Sections 26 and 33, rule 30 of the Rules of
Court 18 clearly show such a distinction.
In a confession, there is an acknowledgment of guilt of the accused or of the criminal intent to commit the
offense with which he is charged. 19 Wharton 20 defines a confession as follows:
A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime
charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and
tending, in connection with proof of other facts, to prove his guilt. In other words, and admission is something
less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is
insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt.
We have examined the assailed extrajudicial statement of the appellant, and we are satisfied that nothing
therein indicates that he expressly acknowledged his guilt; he merely admitted some facts or circumstances
which in themselves are insufficient to authorize a conviction and which can only tend to establish the ultimate
fact of guilt. Nevertheless, when what is involved is the issue of admissibly in evidence under Section 12,
Article III of the Constitution, the distinction is irrelevant because Paragraph 3 thereof expressly refers to both
confession and admission. Thus:
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
The first two paragraphs of Section 12 read:

Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right.
No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against
him. Any confession obtained in violation of this section shall be inadmissible in evidence.
The first two paragraphs of Section 12, Article III of the present Constitution have broadened the aforesaid
Section 20 in these respects: (1) the right to counsel means not just any counsel, but a "competent and
independent counsel, preferably of his own choice"; (2) the right to remain silent and to counsel can only be
waived in writing and in the presence of counsel; and (3) the rule on inadmissibility expressly
includes admissions, not just confessions.
In Morales vs. Enrile, 21 this Court, applying Section 20, Article IV of the 1973 Constitution, laid down the
duties of an investigator during custodial investigation and ruled that the waiver of the right to counsel would
not be valid unless made with the assistance of counsel:
At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the
arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to
remain silent and to counsel, and that any statement he might make could be used against him. The person
arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most
expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the
arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be
in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be
waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in
violation of the procedure herein laid down, whether exculpatory of inculpatory, in whole or in part, shall be
inadmissible in evidence.
We reiterated the above ruling in People vs. Galit, 22 People vs. Lumayok, 23 People vs. Albofera, 24 People vs.
Marquez, 25 People vs. Penillos, 26 and People vs. Basay, 27 among other cases.
The right to be informed of the right to remain silent and to counsel contemplates "the transmission of
meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional
principle." 28 It is not enough for the investigator to merely repeat to the person under investigation the
provisions of Section 20, Article IV of the 1973 Constitution or Section 12, Article III of the present
Constitution; the former must also explain the effects of such provision in practical terms, e.g., what the
person under investigation may or may not do, and in language the subject fairly understands. The right to be
informed carries with it a correlative obligation on the part of the investigator to explain, and contemplates
effective communication which results in the subject understanding what is conveyed. Since it is
comprehension that is sought to be attained, the degree of explanation required will necessarily vary and
depend on the education, intelligence, and other relevant personal circumstances of the person undergoing the
investigation.

Sec. 12. (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.

In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should
also be asked if he wants to avail of the same and should be told that he can ask for counsel if he so desires or
that one will be provided him at his request. If he decides not to retain counsel of his choice or avail of one to
be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and
effective, must be made with the assistance of counsel. That counsel must be a lawyer. 29

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used
against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are
prohibited.

The waiver of the right to counsel must be voluntary, knowing, and intelligent. 30 Consequently, even if the
confession of an accused speaks the truth, if it was made without the assistance off counsel, it is inadmissible
in evidence regardless of the absence of coercion or even if it had been voluntarily given. 31

These first and second paragraphs are taken from Section 20, Article IV (Bill of Rights) of the 1973
Constitution which read:
11

The extrajudicial admission of the appellant, 32 contained in twenty-two pages of yellow pad, does, indeed,
appear to be signed by him and Atty. Reynaldo Cajucom. what we find in these yellow pads are stenographic
notes. these were transcribed by the stenographer who took down the stenographic notes, but for reasons not
explained in the records, the transcript of the notes (Exhibit "C"), which consists of twelve pages, 33 was not
signed by the appellant since it does not indicate any jurat. On the other hand, the same stenographic reporter,
who took down the stenographic notes when accused Wilfredo Quiao was being investigated by City Fiscal
Balajadia, transcribed the notes, and the transcription 34 was subscribed and sworn to by the accused before
City Fiscal Balajadia and also signed by Atty. Cajucom, who represented the accused in the investigation.
Since we cannot even reads or decipher the stenographic notes in the yellow pads, we cannot expect the
appellant, who is a farmer and who reached only the fourth grade, to read or decipher its contents. We have to
rely solely on the transcript and presume its accuracy. A perusal of the transcript convinces us that the
appellant was not given a fair deal and was deprived of his rights under Section 12(1), Article III of the
Constitution. Firstly, he was not fully and properly informed of his rights. The transcript (Exhibit "C") shows
the following preliminary questions of the City Fiscal and the answers of the appellant:
01. QUESTION Mr. Jaime Agustin, I am informing you that
you are under investigation in connection
with the death of Dr. Nap Bayquen of which
you are one of the principal suspects. I am
informing you of your constitutional rights
before you give any statement. First, you
have the right to remain silent meaning, you
may give a statement or you may not give
any statement. If you will not give a
statement, you will not be forced to do so,
do you understand this right?
ANSWER I understand, sir.
02. Q If you will give a statement, you have the
right to be assisted by a lawyer of your own
choice, if you cannot afford to secure the
services of a lawyer the government will
provide a lawyer for you, do you understand
this right?
A I understand, sir.
03. Q Now, do you want to be assisted by a
lawyer?
A Yes, sir.
04. Q I am now informing you that a lawyer in the
person of Atty. Reynaldo Cajucom is now
present in this investigation room, do you
wish to avail of his assistance in connection
with this investigation?
A I want, sir.

05. Q I am also informing you that whatever you

say in this investigation can be used as
evidence in your favor and it can also be
used as evidence against you in any criminal
or civil case, do you understand that?
A Yes, sir, I understand.
06. Q After informing you of your constitutional
rights, are you now willing to give a
statement?
A Yes, sir, I agree.
Investigator Atty. Reynaldo Cajucom, the witness or
respondent Jaime Agustin has chosen you to
give him assistance in this investigation, are
you willing to assist him?
Answer I am willing, fiscal, to assist the witness.
Investigator Have you appraised [sic] him of his
constitutional rights?
Answer Yes, fiscal.
Investigator Do you know after examining him whether
or not he is giving a free and voluntary
statement of his own volition without any
intimidation or force exerted on him?
A As stated by him, fiscal, he is willing to give
a free and voluntary statement in relation to
what really happened.
It is at once observed that the appellant was not explicitly told of his right to have
a competent and independentcounsel of his choice, specifically asked if he had in mind any such counsel and,
if so, whether he could afford to hire his services, and, if he could not, whether he would agree to be assisted
by one to be provided for him. He was not categorically informed that he could waive his rights to remain
silent and to counsel and that this waiver must be in writing and in the presence of his counsel. He had, in fact,
waived his right to remain silent by agreeing to be investigated. Yet, no written waiver of such right appears in
the transcript and no other independent evidence was offered to prove its existence.
Secondly, Atty. Cajucom can hardly be said to have been voluntarily and intelligently "accepted" by the
appellant as his counsel to assist him in the investigation. Atty. Cajucom's presence in the Office of the City
fiscal at the time the appellant was brought there for investigation is unclear to us. At least two possibilities
may explain it: it was a mere coincidence in the sense that he happened to be attending to some professional
matter, or he was earlier called by the City Fiscal for the purpose of giving free legal aid to the appellant.
These possibilities are not remote but whether it was one or the other, it is clear to us that Atty. Cajucom was
in fact foisted upon the appellant, for as shown in the above-quoted portion of Exhibit "C," the city fiscal
immediately suggested the availability of Atty. Cajucom without first distinctly asking the appellant if he had
a counsel of his own choice and if he had one, whether he could hire such counsel; and if he could not,
12

whether he would simply exercise his right to remain silent and to counsel. In short, after the appellant said
that he wanted to be assisted by counsel, the City fiscal, through suggestive language, immediately informed
him that Atty. Cajucom was ready to assist him.

So in other words when you appraised [sic] him of his constitutional rights using English Language and
Tagalog Dialect you did not have any Ilocano dialect Interpreter. . . .
xxx xxx xxx

While it is true that in custodial investigations the party to be investigated has the final choice of counsel and
may reject the counsel chosen for him by the investigator and ask for another one, 35 the circumstances
obtaining in the custodial interrogation of the appellant left him no freedom to intelligently and freely do so.
For as earlier stated, he was not even asked if he had a lawyer of his own choice and whether he could afford
to hire such lawyer; on the other hand, the city Fiscal clearly suggested the availability of Atty. Cajucom. then
too, present at that time were Capt. Antonio Ayat and Sgt. Roberto Rambac, military officers of RUC I, who
brought him to the City Fiscal's Office for investigation in the afternoon of the day when he was unlawfully
arrested in Sto. Tomas, Pangasinan. Along Kennon road, on the way to Baguio City, he was coerced and
threatened with death if he would not admit knowing "Jun" and "Sonny" and hi participation in the crime. This
testimony was unrebutted by the prosecution. The presence of the military officers and the continuing fear that
if he did not cooperate, something would happen to him, was like a Damocles sword which vitiated his free
will.
Why it was the City Fiscal who had to conduct the custodial investigation is beyond us. Nothing in the records
shows that at that time the criminal cases against the culprits had already been filed with the City Fiscal's
Office for preliminary investigation and had, therefore, ceased to be a police matter. If they had been so filed,
then the City Fiscal should have followed the usual course of procedure in preliminary investigations. It
appears, however, from the informations in Criminal Cases Nos. 4647-R and 46648-R that it was Assistant
City Fiscal Octavio M. Banta who conducted the preliminary investigation and who prepared, signed, and
certified the informations. city Fiscal Balajadia merely approved them and administered the jurat in the
certification. the conclusion then is inevitable that he did not conduct the preliminary investigation.
Even assuming for the sake of argument that the appellant voluntarily agreed to be assisted by Atty. Cajucom,
we doubt it very much if he was an independent counsel. While we wish to give him the benefit of the doubt
because he is an officer of the court upon whose shoulders lies the responsibility to see to it that protection be
accorded the appellant and that no injustice be committed to him, 36 and, moreover, he generally has in his
favor the presumption of regularity in the performance of his duties, 37 there are special circumstances in these
cases which convince us that he was unable to assist the appellant in a satisfactory manner. For one, he
admitted on cross-examination that at that time, and even until the time he took the witness stand, he was an
associate of the private prosecutor, Atty. Arthur Galace, in these and the companion cases. Thus:
Q Mr. Witness, at the time you assisted the accused you belonged to the office of Atty. Galace, you were an
associate at the time when you assisted the accused?

WITNESS:
As far as I can remember, I explained it in Tagalog and English. 39
And when asked whether he was sure if the appellant understood him, Atty. Cajucom merely answered:
A At least I put everything as far as I could give to him to appraise [sic] him of his constitutional rights.

Then too, even if he were fully understood by the appellant, we are not satisfied that his explanations were
adequate. On direct examination, he gave the following answers:
Q Did you explain the constitutional rights of the accused to
caution him of the consequences of his statement?
A I explained to him that he has the right to remain silent, to
confront in person the witnesses against him and that he has
the right to choose a counsel to assist him in the hearing of
the case which was being investigated then.
Q And what was his reply regarding the consequences of this
statement?
A He told me that he is willing to give a truthful statement and
in order to shed light. 41
It appears to us that Atty. Cajucom did not actually impress upon the appellant that he was one of the accused;
rather, Atty. Cajucom made the appellant believe that he was only a witness. Thus:
Q [by the prosecutor]

A I was represented [sic] then as IBP Legal Aid.

Q The question is not answered, we are only requesting him if he was an associate of Atty. Galace up to the
present?

But, nevertheless, you gave the precautionary measure

entitled to any witness?
A Yes, sir.

A Yes. 38
Q Why do you say that it was given voluntarily?
Then we have misgivings on whether Atty. Cajucom was in fact understood by the appellant when the former
informed the appellant of his constitutional rights in English and Tagalog considering that the appellant, a
fourth grader and a farmer, could only understand Ilocano. Thus:
ATTY. TABIN:

40

A Before presenting him to the investigation we were given

time to talk personally without any other people and that
was the time that I explained to him all his rights and
consequences pertaining to him as witness to this case. 42
On cross-examination, Atty. Cajucom also declared:
13

ATTY. TABIN:
That is why I am requesting him how he explained in that language, Your Honor.

triggerman as having ordered for a price the murder of Dr. Bayquen, remain at large and the records do not
show any diligent effort to effect their arrest. The triggerman escaped while in the custody of the PC/INP at
Camp Dangwa. The City Prosecutor's Office of Baguio City should then use all the resources at its command,
in coordination with the law-enforcement agencies of the Government, such as the National Bureau of
Investigation and the Philippine National Police, to immediately arrest the other accused.

WITNESS:
I told him that this is a grave case which he would be giving some narrations as a witnessand his involvement
would mean the most grievous offense and if found guilty will bring him for some years in jail and I told him
that I could help him if he will be presenting the truth and narrate is the truth. This is in combination, English
and Tagalog, and most of the time, I made it in Tagalog. 43

WHEREFORE, judgment is hereby rendered REVERSING the challenged judgment of the Regional Trial
Court, branch 3, Baguio City, in Criminal Case No. 4647-R and Criminal Case No. 4648-R, and
ACQUITTING appellant JAIME "JIMMY" AGUSTIN. His immediate release from confinement is hereby
ORDERED unless for some other lawful cause his continued detention is warranted.
[G.R. No. 116487. December 15, 1997]

Moreover, considering that the appellant is familiar only with Ilocano, the Court has serious doubts about his
ability to understand Atty. Cajucom's explanation of his constitutional rights since Atty. Cajucom did so in
English and Tagalog.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GUILLERMO ARINGUE y AMOGUIS

alias Along, MICHAEL CABAL y DUMADAG, alias Gonggong, and
PERCIVERANDO PITAO y GUMAPAC, alias Bebot, accused. MICHAEL CABAL y
DUMADAG and PERCIVERANDO PITAO y GUMAPAC, accused-appellants.

Finally, Atty. Cajucom knew, as admitted by him on cross-examination, that the appellant was picked up on
10 February 1987 by military men in Pangasinan without a warrant for his arrest. 44 Since the crimes with
which the appellant was charged were allegedly committed on 6 September 1986 or more than five months
earlier, no arrest without a warrant could have been legally and validly effected. a warrantless arrest should
comply with the conditions prescribed in Section 5, rule 113 of the Rules of Court. Said section provides:

DECISION
PUNO, J.:
On August 22, 1989, an information was filed before the Regional Trial Court, 10th Judicial
Region, Branch 1, Butuan City, charging Guillermo Aringue y Amoguis alias "Along", Michael
Cabal y Dumadag alias "Gonggong" and Perciverando Pitao y Gumapac alias "Bebot" of
murder committed as follows:

Sec. 5. Arrest without warrant when lawful. A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;

"That on or about the 5th day of August, 1989, at about 8:45 o'clock in the evening more or less, in the City
of Butuan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in
consideration of a prize, reward or promise by accused Guillermo A. Aringue, conniving and confederating
together and mutually helping one another, with the use of unlicensed firearms, with deliberate intent to kill,
taking advantage of superior strength, with treachery and evident premeditation, accused Perciverando G.
Pitao alias Bebot and Michael Cabal alias "Gonggong", did then and there willfully, unlawfully and
feloniously attack, assault and shot one NICOMEDES SALAS hitting the latter on the chest (left side) and
head (left side) and inflicting upon him the following physical injuries to wit:

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that
the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he
is serving final judgment or temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.

"Internal hemorrhage due to gunshot wounds" and as a consequence of said injuries, Nicomedes A. Salas
died almost instantaneously."[1]

None of these exceptional circumstances were present at the time the appellant was arrested on 10 February
1987. The prosecution did not even insinuate that the crimes were committed in the presence of the arresting
officers (for otherwise they could have arrested the appellant on 6 September 1986 yet) or that the appellant
was a prisoner who had escaped from his place of detention; or that the crimes had just been committed for
they were in fact committed more than five months earlier. Atty. Cajucom knew or ought to have known that
the arrest was unlawful. If he were then truly moved by his duty to fully assist the appellant, he should have
forthwith taken the appropriate measures for the immediate release of the appellant instead of allowing the
City Fiscal to investigate him. Needless to say, the conduct of Atty. Cajucom under the circumstances only
strengthen our belief that the appellant had all the cards stacked against him.

The three (3) pleaded not guilty when arraigned on November 21, 1989.[2]
The prosecution established that: On August 5, 1989, the victim Nicomedes A. Salas,
together with his wife Leticia and daughter Lotlot attended a school party at St. Joseph Institute of
Technology (SJIT) of which he was President. At 8:45 in the evening, they left SJIT and proceeded
to their jeep, a stainless, open (doorless) type, parked in front of the school's main gate. The place
was illuminated by two (2) fluorescent lights at the gate of the building and four (4) mercury lights in
the center island of Montilla Boulevard.[3]

Thus, we do not hesitate to declare the appellant's extrajudicial statement inadmissible in evidence because it
was obtained in violation of Section 12 (1), Article III of the Constitution. since it is the only evidence which
links him to the crimes of which he was convicted, he must then be acquitted.

Outside SJIT, Mr. Salas called his driver Rogelio Amora. Amora took the driver's seat and
started the engine. Lotlot sat at the rear seat. Mrs. Salas was about to board the jeep when she
heard a gunshot coming from her left side. She turned her head towards that direction and saw her
husband fall on the ground face down. At the same time, she noticed a man running away. The
man was 2 to 2 1/2 meters away from her. In a split second, another man, 1 1/2 meters away,
pointed his gun at her. Startled, she pointed her finger at him and shouted, "Hoy, hoy!". The man
did not shoot her, but fired at Mr. Salas, hitting him on the chest. Amora also saw the shooting.

His acquittal must not write finis to these murder cases. These crimes must be solved and the triggerman and
the mastermind apprehended. We see in these cases the failure of the Government to exert the necessary
efforts to bring the guilty parties to the bar of justice. Until now, the accused, who were implicated by the
14

The man fled towards La Viva, Montilla Boulevard. Mrs. Salas and Amora identified the man as
Perciverando Pitao.[4] Amora alighted from the jeep and ran towards the victim. They brought Mr.
Salas to Santos Clinic where he died at 9:30 p.m.

On August 21, 1989, Judge Jose C. Adao issued a Warrant of Arrest against accused
Aringue, Cabal and Pitao.[15] They were apprehended and detained at the Butuan City Jail.[16] On
May 17, 1990, accused Cabal and Pitao escaped. Pitao was re-arrested on June 26, 1990, while
Cabal surrendered on July 5, 1990.

On August 6, 1989, Dr. Reinerio Durano, the City Health Officer of Butuan City, autopsied
the victim's body. He found the cause of death as severe internal hemorrhage due to two (2)
gunshot wounds. One of the bullets hit the left side of the chest, two inches below the midclavicular line and passed through the chest and abdomen. It wounded the lungs, stomach, spleen
and intestines and pierced the left lateral abdominal wall. The other bullet hit his head between the
mastoid bone and the occipital prominence and wounded the left hemisphere of the brain. Both
wounds were fatal.[5]

To avoid conviction, the three accused offered alibi and repudiated their extrajudicial
confessions during the trial.
In his defense accused CABAL testified he was in his house the whole day and night of
August 5, 1989. On August 8, 1989, he was playing basketball when several armed men
approached him. One of them, Sgt. Amora, held his hands while another poked a firearm at his
back. Sgt. Amora removed the six bullets from his revolver, inserted one bullet into the drum,
turned it, and asked him whether he killed Nicomedes Salas. When he denied the killing, Sgt.
Amora pointed his gun at him and played with the trigger. The police officers kept on asking him to
confess. He became frightened and gave a confession. He was brought at the police station and
placed inside a dark room. Sgt. Amora then ordered him to point at Aringue as the mastermind
because the latter had a serious disagreement with Nicomedes Salas. When Mrs. Salas arrived at
the station, she was told by Sgt. Amora that the killer already confessed. [17]

On August 8, 1989, at about six o'clock in the evening, Sgt. Leonardo Amora of the
Philippine Constabulary's 103rd Criminal Investigation Service (CIS) Field Office, received
information that the suspects in the killing of Nicomedes Salas were in Barangay Sumilihon. Sgt.
Amora, along with some members of the Butuan City Police proceeded to Sumilihon where they
found accused Pitao and Cabal playing basketball. Upon request of Sgt. Amora, accused Pitao
and Cabal voluntarily went to the Butuan City police station.[6]
At about 11 o'clock in the evening of the same day, Cpl. Cipriano Cabaitan investigated
accused Cabal. Atty. Roldan Torralba (IBP - Agusan del Norte and Butuan City Chapter) was
asked by the police to assist in the investigation. [7] The investigation was conducted in the Visayan
dialect but was typewritten in English. After the investigation, Cpl. Cabaitan read and translated in
Visayan what he had typed to accused Cabal. Atty. Torralba, Capt. Arturo Pojas, and the Station
Commander were present as the statement was read to accused Cabal. In his statement, Cabal
admitted he killed Salas forP5,000.00. He implicated accused Pitao as the other assailant and
accused Aringue as the mastermind. Accused Cabal affixed his signature to the statement after
Atty. Torralba had signed it.[8]

On the other hand, accused PITAO maintains he was not present at the scene of the crime
for he was working at their farm in Sumilihon.[18] He denied leaving Sumilihon, except when he
attended a bible seminar in Sto. Tomas, Davao del Norte. His diploma showed the seminar ended
on June 12, 1988.[19]
On August 8, 1989, at about 5:00 p.m., he was playing basketball in Sumilihon, when Sgt.
Amora, together with armed men in military uniform, took him and Cabal to the Butuan Central
Police Station on a Tamaraw jeep. Inside the jeep, Sgt. Amora asked him whether he participated
in killing Nicomedes Salas. He denied it. At the police station, Sgt. Amora slapped him, held his
chin up and poured 7-up softdrink on his face. When he could no longer breathe, he admitted
killing Nicomedes Salas. When Leticia Salas arrived, Sgt. Amora told her the killer had been
arrested. Mrs. Salas slapped him.[20]

With accused Cabal's revelation, accused Aringue was invited for questioning. Cpl. Cabaitan
asked accused Aringue whether he was willing to accept Atty. Torralba as counsel. When accused
Aringue acceded, Cpl. Cabaitan took his statement. The investigation was conducted in Visayan
but typewritten in English. After the investigation, the statement was read to accused
Aringue.[9] Accused Aringue declared he planned the assassination of his half brother Nicomedes
Salas. Allegedly, Salas refused to deliver his share in the profits of San Jose Institute of
Technology (SJIT), notwithstanding that it was established with his money. He admitted providing
the firearms used in the killing.[10]

On August 9, 1989, between 8:00 and 9:00 a.m., Vicente "Boy" Montederamos, a radio
reporter, interviewed him in the presence of police officers. Sgt. Amora instructed him to give the
same answers to Montederamos as he had given to the police at the station. He was handcuffed
to a chair during the interview. When it was over, Sgt. Amora told him to go outside and point to
the alleged getaway car. He was made to hold a gun while his picture was being taken. At 10:00
a.m., he was brought to the Office of the Fiscal. He told the fiscal that his statement was
untrue. He did not sign it. Back at the police station, Corporal Cabaitan tore the statement to
pieces and told Mrs. Salas to just identify Pitao.[21] He escaped while detained at the City Jail as
somebody told him he would be liquidated.[22]

On August 9, 1989, between 6:00 to 7:00 in the morning, radio reporter Vicente "Boy"
Montederamos went to the Butuan City Police Station when he learned that the suspects in the
Salas' killing had been arrested. The Chief of Police gave him permission to interview the
suspects. In the tape recorded interview, the three accused admitted they killed Nicomedes
Salas. Montederamos made a transcription[11] of the taped interview and submitted it before the
court.[12]
At 9:00 a.m. of the same day, accused Pitao and Cabal, and some members of the Butuan
City Police went to Barangay Sumilihon to recover the firearms used in the shooting. Dionetela
Pitao, sister of accused Pitao turned over two .38 cal. Smith and Wesson revolvers and ten (10)
live ammunitions. Capt. Ernesto Muescan of the Philippine Constabulary (PC) Crime Laboratory,
Camp Evangelista, Cagayan de Oro City found that the bullet recovered from the body of
Nicomedes Salas, marked NS-1, and three (3) test bullets marked TD-1 to TD-3 (Exhs. R, R-1, R2) turned over by Dionetela, were fired from the same firearm. He likewise found that the bullet
marked as NS-2 also recovered from the body of the victim, and three (3) test bullets marked T-631, T-63-2 and T-63-4 (Exhs. R-3, R-4 and R-5) also among the bullets turned over by Dionetela,
were fired from the same firearm.[13]

Accused ARINGUE testified that on August 8, 1989, at about 8 o'clock in the evening,
policemen came at his house and brought him to the police station. After his fingerprints were
taken, he was made to sit on a chair while handcuffed to an old folding bed. A policeman with
armalite guarded him. Later, Pfc. Ferdinand Dacillo entered the room and asked another
policeman to start the interrogation. The policeman approached him and pointed the armalite at his
temple. The policeman asked him to confess. He said that accused Cabal and Pitao had already
confessed. Then, they threatened to shoot him. Frightened, he admitted the crime. Then the
policemen led him to the second floor. He asked for Atty. Wilfred Asis and Corporal Cabaitan
assured him that Atty. Asis would be contacted. However, he was interrogated at 12:00 midnight
despite the absence of Atty. Asis. The investigation lasted for two (2) hours. Then, he was brought
to the office of Col. Polientes where he found Cpl. Cabaitan, Pfc. Dacillo, Sgt. Amora and Atty.
Torralba inside. Atty. Torralba asked him why he confessed. He told him he was afraid of the
policemen.[23]

In the evening of August 9, 1989, Mrs. Salas arrived at the police station. Escorted by a
police officer to the room where accused Pitao and Cabal were detained, she identified accused
Pitao as the second man who fired at her husband.[14]

On August 9, 1989, the police brought him to the office of Fiscal Ernesto Brocoy. The fiscal
read the statement to him in Visayan dialect and asked him whether he understood its
contents. He said yes and he was asked to sign it.[24]
15

The trial court rendered a decision dated December 10, 1993 convicting accused Pitao and
Cabal of murder and acquitting accused Aringue. The dispositive portion of the decision reads:

"Q: What did you do with your forefinger?

"WHEREFORE, in view of all the foregoing, this Court finds accused Michael Cabal and Perciverando Pitao
guilty beyond reasonable doubt of the crime of murder and hereby sentences them to suffer imprisonment
of reclusion perpetua; to indemnify, jointly and severally, the heirs of the victim Nicomedes A. Salas in the
sum of P536,113.00 as actual damages, P2,000,000.00 as moral damages, and to pay the costs.

"Q: And what did this man do after you pointed your finger to him calling him `Hoy,
hoy!'.

"Accused Guillermo Aringue is hereby acquitted on reasonable doubt. The immediate release of Guillermo
Aringue is hereby ordered only as it affects this case and for as long as there is no order requiring his
continued detention.

"x x x.

"SO ORDERED." [25]

"A: Very near.

"A: I pointed at him, I said `Hoy, hoy!'.

"A: He triggered (sic) his gun and shot my husband here who was lying down
(witness pointing at her left chest indicating the location of the gunshot wound.)

"Q: Mrs. Salas, how far was that person from you when you saw him pointing his
gun?

"Q: Very near and how far is very near?

On December 22, 1993, accused Pitao and Cabal filed their Notice of Appeal. In their Brief,
they contended that:

"A: He must have been there at this distance (interpreter estimating...).

"I

INTERPRETER
A distance of 1 1/2 meters, more or less.

"THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS INSPITE (sic)

THEIR INADMISSIBLE CONFESSION.

"x x x." [28]

Appellant Pitao questions the accuracy of Mrs. Salas' identification. He contends that it was
at the police station where Mrs. Salas saw him for the first time and it was the police who
suggested to her that he was the killer. We are unpersuaded. On the contrary, Mrs. Salas testified
she saw Pitao clearly at the scene of the crime:

"II
"THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS BASED ON FACTS
WHICH ARE CONTRARY TO THE TESTIMONY OF THE WITNESSES, BOTH BY THE
PROSECUTION AND BY THE DEFENSE." [26]

"Q: Will you please describe the lighting facilities in the vicinity where your husband
was shot?

The appeal has no merit.

"A: There were two (2) lights at the gate and there were four (4) big lights in the island
without water.

It is incorrect for appellants to make it appear that they were convicted solely on the basis of
their extrajudicial confessions. In truth, the trial court disregarded their confessions after finding
that they were extracted without the assistance of a competent and independent counsel. [27] But,
even without their confessions, the trial court found enough evidence to convict them.

"x x x.
"Q: How many?
"A: There were four (4) big lamps and they were lighted at that time.

Appellant Pitao was positively identified by Leticia Salas and Rogelio Amora, the wife and the
driver of the victim, respectively. The trial court noted that Mrs. Salas was face to face with Pitao
when the latter pointed his gun at her:

"x x x.
"Q: How about the lighting at the gate of SJIT, what kind of lights were they?

"ATTY. ROSALES (Private Prosecutor):

"A: There were two (2) big flourescent lamps at the gate and there was one big light
of the computer at the third floor which can light down which is about 40 watts
and there were lights in the building and in the high school building about five of
them. (sic)

"Q: What else did you observe after seeing Mr. Salas fallen down with face up (sic), if
there was any?
"MRS. LETICIA SALAS:

"Q: Were you able to look at the face of the person whom you said pointed a gun at
you?

"A: I saw one man running away and I saw another man pointing his gun at me.
"Q: What was your reaction when you saw that man pointing his gun at you?

"x x x.

"A: I shouted at him.

COURT:

"Q: What did you shout?

That person pointing a gun at a distance of 1 1/2 meters, did you see him?

"A: I shouted `hoy, hoy?' with my forefinger (sic).

"A: Yes, sir.

16

"x x x.

"Q: What is your name?

"Q: Kindly go and point to him? (Witness descending from the witness stand and
pointed to a person who upon being asked answered with the name
PERCIVERANDO PITAO." [29]

"A: Perciverando Pitao. [31]

On the other hand, ample circumstantial evidence proves beyond reasonable doubt that
Cabal is one of Nicomedes Salas' two assailants. First, Leticia Salas testified she saw two (2) men
fire at her husband, although she was unable to recognize the first one who was already running
when she caught sight of him.[32]

And on cross-examination, Mrs. Salas belied Pitao's claim that she pointed to him on police
behest:
"Q: So, you went to the police in order to pinpoint to (sic) the man. Is that correct?

Secondly, prosecution witness Armando Bernal testified that a few minutes after the
shooting, Pitao and Cabal requested him to transport them from Butuan City to Sumilihon.[33]

"A: Nobody ordered me, Attorney.

Thirdly, while detained at the Butuan City Jail, Cabal freely admitted his complicity to radio
reporter, Vicente "Boy" Montederamos:

"Q: But, who told you to go to the police station?

"A: They asked me if I could identify.

"BOY MONTEDERAMOS:

"Q: That's it?

"Q: Who ordered you to kill Nicomedes Salas?

"A: So, they did not order me that is the one. No, I was the one who said that is the
man." [30]

"MICHAEL CABAL:
"A: Guillermo Aringue.

To corroborate Mrs. Salas' testimony, Amora testified it was Pitao whom he saw shoot
Nicomedes Salas:

"Q: What was your agreement?

"ATTY. ROSALES (Private Prosecutor):

"A: According to him, he would give us five thousand then he will have us land a job
and afterwards we would receive an award.

"Q: Upon arriving at the jeep and you were already seated down, what did this three
(3) persons or anyone of them do, Mr. Salas, Mrs. Salas, Lotlot Salas, if any?

"Q: After you killed Nick Salas, where you given something in fulfillment of your
agreement?

"AMORA:

"A: None.

"A: Lotlot Salas got inside the jeep first.

"Q: Who gave you the firearm which you used in shooting Salas?

"Q: And who followed her next?

"A: Guillermo Aringue."[34]

"A: Followed by Mrs. Salas but before she could get inside the jeep, I heard a shout.

His confession to Montederamos, a private person, is admissible against him, not having
been extracted under custodial investigation.[35]

"Q: Who was that person shouting?

"A: Mrs. Salas.

And last, Cabal escaped while detained at the Butuan City Jail. Escape is evidence of
guilt.[36]

"Q: What words did she utter when she shouted?

Appellants' alibi is unconvincing. Both alleged they were in Sumilihon when Nicomedes
Salas was killed in Butuan City. However, not a single person corroborated their alibi. [37] On the
contrary, Pitao was positively identified[38] while Cabal was seen by witness Bernal in Butuan City
on that fatal night:

"A: Hoy! Hoy!

"Q: And what happened then after you heard those two words "Hoy! Hoy?"
"A: I turned my head towards the voice and I saw a person who fired upon Mr. Salas.

"ATTY. ROSALES (Private Prosecutor):

"x x x.

"Q: In what place did this two persons request you to take them away from the City
Proper (sic)?

"Q: Were you able to see that person? If you can see that person again will you be
able to recognize him, that person who fired the shot?

"A: They were inside the house of my boss.

"A: Yes, sir.

"Q: And where is that house of your boss located?

"Q: Now look around this courtroom and tell us whether that person whom you said
you saw fire that shot inside the courtroom?

"A: At Guingona, 1st Street, Butuan City.

"A: That fellow wearing an orange T-shirt.

"Q: At what time when they went to see you on August 5, 1989 to request you to take
them out of Butuan City?

"Interpreter:
17

"A: I could not exactly state the exact time when they requested me to conduct them
outside of Butuan City but maybe it was around 9:00 o'clock because at that time
we were busy because there was a birthday celebration.[39]
Reviewing the award of indemnity to the heirs of the victim, we note that the trial judge
lumped together the awards of moral damages, attorney's fees and lost earnings of the victim for a
total sum of two million pesos (P2,000,000.00). This is an error, for the aforementioned awards are
different in nature, and hence require separate determination.
Leticia Salas testified that the victim was 49 years old at the time he died. [40] He was serving
the first year of his three-year term, as member of the Sangguniang Panlalawigan, for which he
received a monthly salary of P14,185.00.[41] His gross income for the next three years would
be P553,215.00.[42] Allowing a deduction of 50%[43] from his gross income as his reasonable and
necessary living expense, his lost earnings as councilor for three years would be P276,607.50. As
president and founder of San Jose Institute of Technology (SJIT), the victim received an income
of P5,000.00 a month.[44] His gross annual income would amount to P65,000. Applying the
formula[45] net earning capacity = life expectancy[46] x [gross annual income - reasonable and
necessary living expenses (50%)], we determine his lost earnings to be P671,666.64. In its totality,
the lost earnings of the victim amount to P948,274.14.[47]
We set aside the award of P536,113.00 as actual damages for lack of basis. During the trial,
private complainant Leticia Salas testified that the following amounts were spent as a consequence
of her husband's untimely death: P33,000.00 for food during the eleven (11) days of
prayer; P70,000.00 for the funeral parlor; P30,000.00 for food during the burial; P500.00 for fees to
the church; P5,000.00 for mourning clothes; P20,000.00 for food during the 40th day
service; P5,000.00 for tomb construction; P1,000.00 for gasoline; P495.00 for the hospitalization of
Nicomedes Salas; and P200.00 for telegrams. These expenses totalled P165,195.00.
We find the award of P2,000,000.00 as moral damages to be excessive. Although no proof
of pecuniary loss is required in the assessment of moral damages, the award is essentially by way
of indemnity or reparation.[48] Moral damages are not awarded to punish the defendant but to
compensate the victim.[49] The award is not meant to enrich the victim at the expense of the
defendant.[50] We find that an award of P50,000.00 is commensurate to the emotional suffering of
the victim's heirs. Additionally, we award P50,000.00 as indemnity by reason of the death of the
victim in accord with Article 2206 of the Civil Code and prevailing jurisprudence. [51] The award of
attorney's fees is set at P25,000.00 which is reasonable considering that the proceedings at the
lower court lasted four years.[52]
IN VIEW WHEREOF, the decision of the Regional Trial Court is AFFIRMED with the
modification that the monetary award shall be in the following sums: P50,000.00 as indemnity for
the death of Nicomedes Salas; P948,274.14 as lost earnings of the victim; P165,195.00 as actual
damages; P50,000.00 as moral damages; and P25,000.00 as attorney's fees. Costs against
appellants.

The rights of a person under custodial investigation, particularly the right to remain silent and to counsel, have
been explained, echoed and stressed no end by this Court. They are no less constitutionally enshrined.[1]
Innumerable court decisions[2] have been rendered, evincing the great importance with which the state regards
them. A law[3] was recently enacted defining the rights of persons arrested, detained or under custodial
investigation as well as the duties of the arresting, detaining and investigating officers; and penalizing
violations thereof. In spite of these clear constitutional, jurisprudential and statutory guidelines, one still finds
persistent infractions by public investigators and police authorities that have resulted in acquittals which
oftentimes are not understood or appreciated by the public at large.
In the present case, the issue confronts us once more. As we have held in similar cases, a voluntary
extrajudicial confession of an accused, even where it reflects the truth, if given without the assistance of
counsel and without a valid waiver thereof, is inadmissible in evidence against him.[4]
Of course, where the statements in the uncounselled confession are reiterated in open court, or where other
conclusive evidence proves the guilt of the accused beyond reasonable doubt, the court should not hesitate to
convict and mete the proper penalty.[5]
In an Information[6] dated October 28, 1988, First Assistant Provincial Fiscal Andres B. Barsaga, Jr. charged
Accused-appellants Noli Salcedo, Edison Banculo, Juanito Sual, Jr. and Danilo Laurio, together with Nonoy
(Teodulo, Jr.) Esquilona, Reynaldo Cortes, Paco (Romarico) Manlapaz, Gemo Ibaez, Bolodoy Calderon, Gil
Rapsing, Jose Fernandez, Noe Albao, Ely Rapsing and Norie Huelva, with the crime of murder committed as
follows:
That on or about June 20, 1988, in the evening thereof, at Barangay Gabi, Municipality of Baleno, Province
of Masbate, Philippines, within the jurisdiction of this Court, the said accused, conspiring together and
mutually helping one another, with intent to kill, evident premeditation(,) treachery and superiority of strenght
(sic) and taking advantage of nighttime, did, then and there willfully, unlawfully and feloniously attack,
assault and shot with a gun(,) hack with a bolo one Honorio Aparejado y Fideles, hitting the latter on the
different parts of the body, thereby inflicting wounds which directly caused his instantaneous death.
On September 12, 1989, Accused Noli Salcedo, Juanito Sual, Jr., Edison Banculo, Danilo Laurio, Reynaldo
Cortes and Nonoy Esquilona, assisted by Attys. Ricardo Merdegia and Jose Medina, pleaded not guilty to the
above charge, while Accused Romarico Manlapaz, assisted by Atty. Ruben Songco, entered the same plea on
January 23, 1990.[7] The rest of the accused remained at large. Trial ensued insofar as those apprehended and
arraigned were concerned. On May 6, 1991, the trial judge rendered judgment convicting Salcedo as
principal; and Banculo, Sual, Jr. and Laurio as accomplices in the crime of murder. Esquilona, Jr., Cortes and
Manlapaz were acquitted.[8]
The Facts

[G.R. No. 100920. June 17, 1997]

Evidence for the Prosecution

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOLI SALCEDO @ "KA TONY," GEMO IBAEZ
@ "KA TITING," BOLODOY CALDERON, JUANITO SUAL, JR., EDISON BANCULO, NONOY
ESQUILONA, GIL RAPSING, JOSE FERNANDEZ, REYNALDO CORTEZ, NOE ALBAO, ELY
RAPSING, PACO MANLAPAZ, DANILO LAURIO and NORIE HUELVA, accused,

The principal witness for the prosecution, Edwin Cortes, a 30-year old farmer, resident of Gabi, Baleno,
Masbate, and brother-in-law of the victim, Honorio Aparejado, identified and affirmed his statement[9] given
on June 30, 1988 relative to the incident which he had subscribed to before Municipal Circuit Trial Judge
Vicente Lim Yu on July 11, 1988. The gist of Cortes testimony[10] is as follows:

NOLI SALCEDO, EDISON BANCULO, JUAN SUAL, JR., and DANILO LAURIO, accused-appellants.

About 8:00 oclock in the evening of June 20, 1988, he was in his house together with his wife, their four
children and the victim when several armed men led by Accused Noli Salcedo arrived. Salcedo shouted for
him and the victim to come out of the house. Once outside, Cortes and Aparejado were ordered to lie on the
ground; then they were hogtied. Thereafter, they were told to get up and were led to the other side of a creek,
about twenty (20) meters from the house, where they were ordered to lie down again. While the witness and
the victim were in such position about two or three meters apart, Salcedo shot Aparejado twice, then hacked

DECISION
PANGANIBAN, J.:

18

him. Salcedos companions likewise hacked the victim. Afterwards, they turned Aparejados body around,
opened his stomach and took out his liver. His kneecap was also removed. Then all the accused left, bringing
with them the victims liver and kneecap. Cortes claimed to have witnessed all these since the accused had a
flashlight and the moon was just rising.
After the accused had left, Cortes ran towards a grassy area where he was able to untie his hands. The
following morning, he informed the relatives of the victim about the incident and likewise reported the same to
police authorities at Baleno, Masbate. Cortes further stated that he had known Salcedo for about a year prior
to the incident and that he had no knowledge of any reason why the accused had killed Aparejado. Although
he admitted not knowing the identities of Salcedos companions at the time of the murder, he identified each
of the accused before the trial court and said that they were the ones who killed Aparejado.

admitted that the three were not assisted by counsel when they signed their respective waivers--neither during
the investigation nor at the time they affixed their signatures to their respective statements.[16]
Pfc. Wencell[17] Esquilona, member of the INP (now PNP) Baleno Police Station, was presented as a rebuttal
witness for the prosecution. He stated that he had effected the arrest of six of the accused, namely: Manlapaz,
Cortes, Esquilona, Jr., Laurio, Banculo and Sual. As to the latter three, Esquilona admitted that he was not
armed with a warrant for their arrest but that he had only received a wire from the headquarters that the three
were suspects in the murder of Aparejado. At the time of the arrest, he likewise recovered one lantaka, an
armalite revolver and fatigue uniforms at the house where the three were arrested. He stated further that he
did not maltreat any of them and was not present during their investigation conducted by Sgt. Jose Bajar.[18]
Evidence for the Defense

Municipal Health Officer Conchita Ulanday conducted the postmortem examination on the body of the victim.
Her findings included:
Signs of violence:
(1)
Incised wound with a zigzag appearance 11 penetrating exposing the stomach and a portion of the
intestines, located at the epigastric area (Rt.) up to the level of the navel.
(2)
Incised wound slightly curving in appearance(,) 7 penetrating exposing a portion of the intestines
crossing the wound #1 at the level of the navel.
(3)
Gunshot wound point of entry #2, 1 cm. circular each 1 apart pre-axillary line at the level of the 4th
and 5th (illegible) with the presence of tattoing (sic) (powder burns) around the wound(,) back, left, with a
downward-inward in (sic) direction.
(4)
Gunshot wound point of entry 1 cm. circular, scapular line, (with) tattoing (sic) around the wound,
lower back, left.
(5)
body.
(6)

Hack wound at the level of the nape of the neck, almost completely detaching the head from the

A emulsion (sic) knee cartilage, Rt.

Due to the above-mentioned post mortem findings (sic) was made that death was caused by hack, gunshot and
incised wounds.[11]
Dr. Ulanday described the first, second and last wounds as serious but not fatal, although they might have been
secondary to infection. However, the three other wounds were fatal since they injured vital organs such as
the lungs, heart and liver.[12]
Witness Lydia Aparejado, widow of the victim, testified on how she learned of the killing of her husband. At
that time, she was in Baleno attending to the needs of their children who were studying there. She further
testified to the actual expenses incurred as a consequence of the death of her husband, amounting to
P5,000.00. She also demanded indemnification for the physical and mental anguish she felt due to the killing
of her husband, in an amount she left to the discretion of the court.[13]
P/Sgt. Jose Bajar of the Aroroy Police Station testified that he had conducted the investigation of Accused
Danilo Laurio, Juan[14] Sual, Jr. and Edison Banculo on August 22, 1988. The investigation was in the form
of questions and answers in the vernacular which were reduced into writing.[15] During cross-examination, he

Accused Edison Banculo testified that he had been in Balite, Aroroy, Masbate, sleeping in the house of his
adoptive parents, Celia[19] Laydo and Angel Entines,[20] on the night the incident occurred. His adoptive
parents and co-accused Danilo Laurio were also in the same house at that time. He declared that he had signed
Exhibit G, purportedly his confession of his participation in the killing of Aparejado, only because he could
not bear the physical maltreatment by the police who had further threatened to kill him. He confirmed that he
was not assisted by counsel or apprised of his rights to remain silent and to be assisted by counsel of his own
choice during his investigation.[21]
Another accused, Teodulo Esquilona, Jr., testified that he had been in Masbate, Masbate, learning the art of
wood lamination from a certain Eduardo Marabe, on the day the incident took place. Among his co-accused,
he knew only Reynaldo Cortes while he met the others for the first time in court. He testified further that,
contrary to the assertion of Prosecution Witness Edwin Cortes, he personally knew the latter who had been his
neighbor in the poblacion of Baleno, Masbate from 1978 to 1986. Besides, his wife was the cousin of
Edwin.[22]
Accused Reynaldo Cortes corroborated the alibi of Teodulo, Jr., stating that he slept in the latters house on
the night of June 20, 1988 at Lagta, Baleno, Masbate. The latter had left early morning of that day and came
back only the following day. He denied having known the other accused previous to the filing of the case
except for Romarico Manlapaz who was a neighbor of Teodulo, Jr. He claimed to be a cousin of the victims
father but knew no enmity or ill feeling between them. He likewise claimed to have been physically
maltreated by the police during his investigation.[23]
The principal suspect, Noli Salcedo, likewise denied complicity in the murder of Aparejado. He claimed to
have been in Manila working as a construction laborer from 1987 until August 1988. When asked the name of
his employer and of the firm where he worked, he could not, however, name either. At the latter date, he went
back to Bantigue (in Masbate) to attend the fiesta. He was later arrested in his hometown of Kinamaligan. At
the time of his arrest, he had tried to escape, as a result of which he was shot by one of the police officers. He
denied knowing the Aparejados and his other co-accused.[24]
Another accused, Romarico Manlapaz, also claimed that he had been in Manila from May 10, 1988 until
February 1989 when he returned to Lagta, Baleno. He admitted knowing, among his co-accused, Teodulo
Esquilona, Jr. and Reynaldo Cortes who were his neighbors in Lagta. As to the rest, he only met them in jail.
He also denied knowing the victim or his widow.[25]
Juanito Sual, Jr. stated that he was in his house in Gabi, Baleno, Masbate during the night of the incident. He
admitted affixing his signature to the statement marked Exhibit F for the prosecution, but only because he
could no longer bear the maltreatment of Policeman Wencell Esquilona. He confirmed that he had not been
assisted by counsel during his investigation, and denied that he had been informed of his rights to remain silent
and to be assisted by counsel of his own choice. He also claimed that at the time he was apprehended, there
was no warrant for his arrest. He denied having been in the company of Noli Salcedo, whom he allegedly met
19

in jail only in the evening of June 20, 1988. He said that, among the other accused, he knew only Edison
Banculo, Danilo Laurio and Reynaldo Cortes prior to this case.[26]
Danilo Laurio stated that he was sleeping at the house of his adoptive parents in Balite, Aroroy, Masbate, on
the night that Honorio Aparejado was killed. At that time, his co-accused Edison Banculo was in the same
house. He controverted the statement of Prosecution Witness Edwin Cortes that he was one of those who had
killed Aparejado. He further denied having known the victim or the latters wife prior to his murder. He also
stated that at the time of his arrest, the arresting officer was not armed with a warrant. Although he admitted
having signed his alleged sworn statement presented by the prosecution, he claimed that he was forced to do
so after having been physically abused by Policeman Wencell Esquilona.[27]
The adoptive mother of Accused Banculo and Laurio, Celia Laydo Entines, testified that she and the two went
gold-panning in her land at Baliti (or Balite), Aroroy, Masbate on June 20, 1988 at daytime. About 7:00
oclock in the evening, they all went to sleep and woke up about 5:00 oclock the following morning. To her
knowledge, her two adopted sons did not leave the house that night.[28]
Two other witnesses were presented, corroborating the alibi of Cortes and Esquilona, Jr., and also attesting to
their good character.
Ruling of the Trial Court

The full dispositive portion of the questioned Decision reads as follows:

WHEREFORE, the Court finds accused NOLI SALCEDO guilty beyond reasonable doubt of the crime of
Murder and is sentenced to suffer the penalty of RECLUSION PERPETUA and to pay the heirs of the victim
in the amount of FIFTY THOUSAND (P50,000.00) PESOS.
Accused Edison Banculo, Juan Sual Jr. and Danilo Laurio as Accomplice (sic) in the crime of Murder, they
are hereby sentenced to suffer Indeterminate Penalty of EIGHT (8) YEARS and ONE (1) DAY of Prision
Mayor, as minimum, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of Reclusion Temporal, as
maximum, in the absence of any mitigating circumstance.
All instruments seized from the accused are hereby confiscated in favor of the government, to wit:
Exh. I - lantaka (homemade gun) long barrel;

In discrediting Accused-appellant Noli Salcedos sole defense of alibi, the court a quo reasoned thus:

Exh. L - armalite revolver, Smith and Wesson, US made;

Accused Noli Salcedo has been clearly and positively identified by lone witness Edwin Cortes. His alibi
therefore, that he was in Manila at the time the heinous crime was perpetrated, cannot be sustained. Moreover,
after examining the evidence in support of his defense, the Court finds that his alibi has the aspect of
fabrication.
xxx

However, the trial court noted that the inclusion of Accused Romarico (Paco) Manlapaz, Reynaldo Cortes and
Teodulo Esquilona, Jr. in the charge was based solely on the extrajudicial confessions of Edison Banculo, Juan
Sual, Jr. and Danilo Laurio which, absent independent proof of conspiracy, were not admissible evidence
against alleged co-conspirators[31] under Section 27, Rule 130 of the Rules of Court. Thus, a judgment of
acquittal was rendered in favor of Manlapaz, Cortes and Esquilona, Jr.

xxx

xxx

When asked by the prosecution the firm or the name of his employer where he was working in Manila, he
could not remember the construction firm neither the name of his employer. This is highly impossible,
considering the fact that he reports to work daily. While he may in the remote probability forget one, he could
not forget both."[29]
With respect to the other accused, the trial court explained their complicity this wise:

Exh. L-1, L-2, L-3, L-4 - live ammos; and

Exh. L-5 and L-6 - empty shells.
In the service of their sentence, accused Edison Banculo, Juan Sual Jr. and Danilo Laurio shall be given the
full credit of their detention.
Accused Teodulo Esquilona, Jr., Reynaldo Cortes and Paco Manlapaz are hereby ACQUITTED.
Let an alias warrant of arrest be issued for the apprehension of the other accused who remain at large up to
the present, namely: Gemo Ibaez, Bolodoy Calderon, Gil Rapsing, Jose Fernandez, Noe Albao, Ely Rapsing
and Norie Huelva.[32]

It is to be remembered that Edwin Cortes, witness for the prosecution knew only Noli Salcedo and Bolodoy
Calderon of the eight (8) who came to his house. x x x

Issues

The other accused were merely referred to by the witness as companions of Noli Salcedo and Bolodoy
Calderon. That he was able to pinpoint the other accused in Court is understandable considering that when the
above-named accused were under custodial interrogation, he was present. Under such circumstances, he could
well remember the faces of the six (6) accused for purposes of implicating them.

In their appeal before us, accused-appellants aver that the trial court erred in not acquitting them on the ground
of reasonable doubt and in not giving due credit to their defense of denial and alibi.[33] They claim that the
prosecution failed to present clear and conclusive proof of conspiracy and of the presence of all elements of
the crime (without, however, specifying which element was not proved). Thus, although alibi is an inherently
weak defense, faced with the improbabilities and uncertainties of the prosecutions evidence, it suffices to
raise reasonable doubt as to the accuseds responsibility.

Their participation in the criminal act appears to be limited to being present in the premises where the acts of
co-defendants who, other than being present, giving moral support to the principal accused, cannot be said to
constitute direct participation in the acts of execution and their presence and company were not necessary and
essential to the perpetration of the murder in question. Such co-defendants may only be considered guilty as
accomplices x x x.[30]

The Solicitor General views Appellant Salcedos alibi as futile because he failed to prove that it was
physically impossible for him to have been at the scene of the crime at the time of its commission. Further,
the prosecution eyewitness positive identification of him as one of the culprits pulverizes his already weak
defense. The state counsel recommends, however, the acquittal of Appellants Banculo, Sual, Jr. and Laurio on
the ground that their extrajudicial confessions were executed without the assistance of counsel and are, hence,
20

inadmissible in evidence. He further states that since the only evidence implicating them in the crime are
these uncounselled confessions, the constitutional presumption of innocence must be resolved in their
favor.[34]
The Courts Ruling
After a careful scrutiny of the records, we find the recommendation of the Solicitor General justified. Thus,
we partially grant this appeal insofar as the conviction of Appellants Juanito Sual, Jr., Edison Banculo and
Danilo Laurio is concerned. However, with regard to Appellant Noli Salcedo, in the face of the clear and
categorical testimony of Prosecution Witness Edwin Cortes who related in minutiae the extent of Salcedos
participation in the vicious slaughtering of the hapless victim, his conviction must stand.
First Issue: Sufficiency of Prosecution Evidence
Against Appellants Banculo, Sual, Jr. and Laurio
Appellants Banculo, Sual, Jr. and Laurio deny complicity in the murder of Aparejado and refute the
voluntariness of the execution of their purported confessions. The three claim to have been physically
maltreated by the apprehending officer and forced to sign the statements prepared by the police investigator.
The trial judge, however, gave no credit to their allegations of maltreatment, and further ruled against the
objections of the defense counsel to the admissibility of appellants statements on the ground that they had
been taken without the assistance of counsel.
Significantly, the absence of counsel at the time of the investigation of the three above-named appellants was
confirmed by the police investigator himself, thus:

inviolability of the constitutional rights of a person under custodial investigation and we find our
pronouncement in People vs. Parel once more worth repeating:
Under Sec. 12, par. 1, Art. III, of the 1987 Constitution, any person under custodial 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. The right to be informed carries with it the correlative obligation on the part of the investigator to
explain, and contemplates effective communication which results in the subject understanding what is being
conveyed. Since what is sought to be attained is comprehension, the degree of explanation required will vary
and depend on education, intelligence and other relevant personal circumstances of the person being
investigated. In further ensuring the right to counsel of the person being investigated, it is not enough that the
subject be informed of that right; he should also be asked whether he wants to avail himself of the same and
should be told that he can hire a counsel of his own choice if he so desires or that one will be provided him at
his request. If he decides not to retain a counsel of his choice or avail himself of one to be provided him and,
therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the
assistance of counsel. That counsel must be a lawyer.
Even assuming that in the instant case the extrajudicial confession made by appellant spoke the truth and was
not extracted through violence or intimidation, still the failure of the police investigators to inform appellant of
his right to remain silent, coupled with the denial of his right to a competent and independent counsel or the
absence of effective legal assistance when he waived his constitutional rights, rendered the confession
inadmissible under Sec. 12, par. 3, Art. III, of the 1987 Constitution.[36] (Underscoring supplied.)
In People vs. Januario,[37] we reemphasized our unwavering commitment to safeguard our peoples rights,
particularly the right to counsel of persons under custodial investigation, as follows:

Q (When) Danilo Laurio signed the waiver, was he assisted by counsel?

No, sir.

The 1987 Constitution was crafted and ordained at a historic time when our nation was reeling from ghastly
memories of atrocities, excesses and outright violations of our peoples rights to life, liberty and property.
Hence, our bill of rights was worded to emphasize the sanctity of human liberty and specifically to protect
persons undergoing custodial investigations from ignorant, overzealous and/or incompetent peace officers.
The Constitution so dearly values freedom and voluntariness that, inter alia, it unequivocally guarantees a
person undergoing investigation for the commission of an offense not only the services of counsel, but a
lawyer who is not merely (a) competent but also (b) independent and (c) preferably of his own choice as
well.

When he signed the entire body of your investigation was he also assisted by counsel?

xxx

No, sir.

How about Edison Banculo when he signed the waiver, was he assisted by counsel?

He was not assisted.

The Court understands the difficulties faced by law enforcement agencies in apprehending violators of the
law x x x. It sympathizes with the public clamor for the bringing of criminals before the altar of justice.
However, quick solution of crimes and the consequent apprehension of malefactors are not the end-all and beall of law enforcement. Enforcers of the law must follow the procedure mandated by the Constitution and the
law. Otherwise, their efforts would be meaningless. And their expenses in trying to solve crimes would
constitute needless expenditures of taxpayers money.

When he signed the entire investigation that you made?

Yes, sir.[35]

No, sir.

Q How about Juanito Sual, when he signed Exhibit F, his waiver, when he signed the waiver on Exhibit F,
was he assisted by his counsel?

Under these circumstances, this Court is left with no choice but to exclude the sworn statements of Laurio,
Sual, Jr., and Banculo from the evidence against them. We recently had occasion to discourse on the

xxx

xxx

This Court values liberty and will always insist on the observance of basic constitutional rights as a condition
sine qua non against the awesome investigative and prosecutory powers of government.
The constitutionally infirm confessions of appellants, therefore, cannot be given any iota of consideration.
And without such statements, the remaining prosecution evidence is sorely inadequate to prove the
participation of Banculo, Sual, Jr. and Laurio in the crime. The lone prosecution eyewitness, Edwin Cortes,
21

tried to implicate all the accused by describing the kind of weapon each had been armed with during the night
of the incident.[38] His statements relative thereto are, however, suspect. In the rest of his testimony, he
referred to the accused, other than Salcedo, merely as Salcedos companions. On a specific question
proffered by the public prosecutor, Cortes admitted not knowing the identities of the other accused, thus:

Was Honorio Aparejado hit?

Yes, sir.

Q Do you want to impress to this Honorable Court that you do not know the rest of the accused at the time
when this victim was killed?

How far were you when you saw Honorio Aparejado ... Noli Salcedo when he shot Honorio Aparejado?

Just near, about two meters.

Yes, sir.[39]
Q

How were you able to see that it was Noli Salcedo who shot Honorio Aparejado when it was nighttime?

Even during his earlier investigation by the police, he had already claimed not to have recognized the other
assailants. The relevant part of his sworn statement is as follows:

I could recognize his voice and his physical built.

Q How many persons all in all did you see?

Was there a light at that time?

Eight.

Yes, sir.

Of these eight persons were you able to recognize any one of them?

xxx

Yes, sir.

How many times did Noli Salcedo shoot Honorio Aparejado?

Who are they?

Two times.

Noli Salcedo and Bolodoy Calderon.

Then after shooting Honorio Aparejado, what else transpired?

How about the six, do you know them?

He was hacked.

I do not know them.[40]

Do you want to tell us that Honorio Aparejado was again hacked?

Yes, sir.

Without knowing the other accused at the time of the incident, it is quite unbelievable that the witness could
recall exactly what kind of weapon each carried that night. No sufficient and credible evidence is in the
records to overturn another constitutional right of the accused: the right to be presumed innocent of any
offense until the contrary is proved beyond reasonable doubt. Every circumstance favoring their innocence
must be taken into account and proof against them must survive the test of reason.[41] Under the above
circumstances, the prosecution failed to adduce that quantum of evidence required to warrant a conviction.
Hence, the three appellants deserve an acquittal.[42]

xxx

Q By whom
A

The companions of Noli Salcedo.

How about Noli Salcedo, did he hack Honorio Aparejado?

Against Appellant Salcedo

A

Yes, sir.

We cannot hold the same for Appellant Salcedo. He was positively and consistently identified by Witness
Edwin Cortes as the principal culprit. Upon the groups arrival at the witness house, it was Salcedo who
shouted for Cortes and Aparejado to get down from the house. He was the one who gave orders for them to lie
down on the ground, to be hogtied and to proceed to the other side of the creek.[43] The witness was
categorical in declaring that it was Salcedo who shot Aparejado twice and hacked him after that. He testified:

How many times?

Only once.[44]

Q When you were already lying flat on the ground near that creek what happened?

His testimony essentially affirmed his statements during the police investigation, thus:

QUESTION

Noli Salcedo shot Honorio Aparejado.

22

Last June 20, 1988 at about 8:00 oclock in the evening where were you?

xxx

ANSWER I was in my house at Gabi, Baleno, Masbate.

xxx

xxx

xxx

Q While you were in your house on that date and time, do you remember of (sic) any unusual incident that
happened?
A

Yes sir.

Tell us what happened.

During that date and time several persons arrived and told us to go down.

How many persons all in all did you see?

Eight.

Of these eight persons were you able to recognize any one of them?

Yes sir.

Who are they?

With respect to Appellant Salcedo, his defense of alibi, juxtaposed with the positive identification made by
Witness Cortes, pales in probative value and is totally inadequate to justify an exoneration. Salcedo tried to
establish that it was physically impossible for him to have been at the scene of the crime since he was
supposedly working in Manila at that time. But when asked by the public prosecutor the name of his employer
in Manila, he simply replied that he could not remember anymore.[48] As aptly observed by the trial court, it
is highly impossible for one not to remember either the name of his employer or the firm where he had
worked.[49] Salcedo did not even attempt to try to recall either name. This lends grave doubt as to the
truthfulness of his defense. The inherent weakness of alibi as a defense was not overcome. Indubitably, it
cannot prevail over the positive identification made by the prosecution witness.[50]
Treachery
Although the trial court stated that the killing was qualified by treachery, it did not explain what circumstances
of treachery were present. Nonetheless, the facts established during trial unmistakably point to the presence of
means, method or form employed by the accused which tended directly and specially to ensure the execution
of the offense without risk to himself arising from the defense that the offended party might make. The Court
is satisfied that these essential requirements of treachery were proven by clear and convincing evidence as
conclusively as the killing itself.[51]
In the case before us, there were eight assailants, at least one of whom was armed with a gun and a bolo. It
was sufficiently established by the prosecution that the victim had first been hogtied and then made to lie
down facing the ground. And it was in such position that Salcedo fatally shot and hacked him. Obviously, the
killing was attended by alevosia. Aparejado was rendered defenseless and absolutely with no means to repel or
evade the attack.[52] This qualifies the killing to murder.
Damages

Noli Salcedo and Bolodoy Calderon.

xxx

xxx

What happened after you were told to lay flat faced down?

While we were lying down, Noli Salcedo shot Norie Aparejado.

Was Norie Aparejado hit?

Yes sir.[45]

xxx

Appellant Salcedo, instead of introducing evidence to show that the witness had evil motive in imputing the
crime to him, even admitted that he knew of no reason why Edwin Cortes would testify falsely against
him.[46] Consequently, Cortes positive and clear identification of Salcedo is sufficient to convict him. It has
been repeatedly held that the testimony of a single witness, if credible and positive and satisfies the court as to
the guilt of the accused beyond reasonable doubt, is sufficient to convict.[47]
Second Issue: Alibi
In the light of the prior discussion exculpating Appellants Banculo, Sual, Jr. and Laurio from the murder of
Aparejado, we shall no longer discuss the sufficiency and worthiness of their alibi.

This Court observes that the trial court did not rule on the damages sought to be recovered by the widow of the
victim. Lydia Aparejado testified that she incurred expenses for the embalmment, the coffin and funeral lot in
the estimated amount of P5,000.00. Of such expenses, the Court can only give credence to those supported
by receipts and which appear to have been genuinely incurred in connection with the death, wake and burial
of the victim.[53] We scoured the records for any receipt in support of her claim but found none. Actual
damages cannot, therefore, be granted to the victims heirs. However, we affirm the civil indemnity in the
amount of P50,000.00 given by the trial court. This is automatically awarded without need of further evidence
other than the fact of the victims death.
Anent moral damages, the victims widow did state that she suffered headaches due to the death of her
husband; with him gone, she worried about how to support her children. Moral damages, which include
physical suffering and mental anguish, may be recovered in criminal offenses resulting in physical injuries[54]
or the victims death, as in this case. The amount of moral damages is left to the discretion of the court. Since
the court a quo did not exercise such discretion, this Court may do so because an appeal in a criminal case
opens the whole case for review. This Court now deems justified the award of moral damages in the amount of
P50,000.00 to Lydia, the wife of Honorio Aparejado.
WHEREFORE, premises considered, the appeal is partially GRANTED. Appellants Edison Banculo, Juanito
Sual, Jr. and Danilo Laurio are hereby ACQUITTED on reasonable doubt and are ordered RELEASED
immediately unless they are being detained for some other legal cause. The assailed Decision finding Noli
Salcedo GUILTY beyond reasonable doubt of murder and imposing on him the penalty of reclusion perpetua
as well as the payment of the sum of P50,000.00 as indemnity to the heirs of the victim, Honorio Aparejado y
Fideles, is AFFIRMED. Furthermore, accused-appellant is also ordered to pay moral damages in the amount
of P50,000.00 to the victims wife, Lydia Aparejado. The other parts of the said Decision, insofar as they are
not inconsistent with the foregoing, are hereby also AFFIRMED.

23

G.R. No. 110107

January 26, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOLORES LORENZO Y CORSINO, accusedappellant.

DAVIDE, JR., J.:
For having allegedly killed her husband on 30 July 1990, accused-appellant Dolores Lorenzo y Corsino, a
policewoman, was charged with the crime of parricide in an information 1 filed with the Regional Trial Court
(RTC), Tuguegarao, Cagayan, on 30 March 1992. The information was docketed as Criminal Case No. 206092-TUG and raffled to Branch 5. The accusatory portion thereof reads as follows:
That on or about July 30, 1990, in the Municipality of Tuguegarao, Province of Cagayan, and within the
jurisdiction of this Honorable Court, the said accused, PO1 Dolores C. Lorenzo, armed with a bolo and a fan
knife, with intent to kill, with evident premeditation and with treachery did then and there wilfully, unlawfully
and feloniously attack, assault, stab, hack and chop one, Agapito Lorenzo, her own husband, inflicting upon
him several injuries on the different parts of his body which caused his death.
That in the commission of the offense, the aggravating circumstance of cruelty was present.
After due trial, the trial court promulgated on 24 February 1993 2 its judgment finding the appellant guilty of
the crime of parricide and sentencing her to suffer the penalty of reclusion perpetua and to pay the heirs of the
victim P50,000.00.
At the trial, the prosecution presented barangay captain Isabelo Liban and SPO1 Jose Eclipse as its witnesses.
The defense presented the appellant herself and Romeo Racheta. The versions of both the prosecution and the
defense are summarized by the trial court as follows:
The prosecution's evidence tells the following story:
Agapito Lorenzo and accused Dolores Lorenzo were spouses residing in Looban, Barangay 12, Balzain,
Tuguegarao, Cagayan. Among their neighbors are Barangay Captain Isabelo Liban, Romeo Racheta and
Robert Santos.
In the evening of July 30, 1990, SPO1 Jose Eclipse of the Tuguegarao PNP Station was in Balzain,
Tuguegarao, Cagayan because that was his post for the night. At about a little past 10:00 o'clock that evening,
a tricycle driver went to Policeman Eclipse and reported to him a stabbing incident in said Barangay 12;
Policeman Eclipse rushed to the reported crime scene. On his way, he met PO1 Dolores Lorenzo, a
policewoman of his own Station who immediately surrendered to him a blood-stained bolo and a fan knife and
told him, "I killed my husband".
The two proceeded to where the victim was. In front of the store of Barangay Captain Isabelo Liban,
Policeman Eclipse saw Agapito sprawled on the ground with blood all over his body.
Policeman Eclipse called for Barangay Captain Liban to come out of his house. In the presence and within the
hearing of said barangay official, Policewoman Lorenzo again said, "I'm surrendering because I killed my
husband".

Policeman Eclipse ordered somebody to get a tricycle to bring the lifeless body of Agapito Lorenzo to a
funeral parlor while he and Policewoman Lorenzo went to the Tuguegarao PNP Station. Policeman Eclipse
turned over Policewoman Lorenzo together with the bolo and knife to the Desk Officer, SPO3 Urbano Aquino.
Eclipse then orally made his report to the Desk Officer which was noted down in the Police Blotter.
The defense painted another picture of the incident. It's theory is that it was not Policewoman Lorenzo but a
certain Robert Santos who killed Agapito. Here is the defense's version of the incident.
In the afternoon of July 30, 1990, Agapito Lorenzo and his neighbor Robert Santos were in the former's house
passing the time over a bottle of beer grande. When Policewoman Lorenzo arrived home from work, Agapito,
in the presence of Robert Santos, met her with the following intemperate questions: "Your mother's cunt, why
do you arrive only now? Where did you come from? To avoid further scandal, Policewoman Lorenzo just keep
quiet, went to change her clothes and proceeded to the kitchen to prepare supper. Finding nothing to cook, she
asked permission from her husband to go to market.
Policewoman went to market and then immediately went back home to cook what she bought. While cooking
in the kitchen, she heard a heated exchange of words between Robert Santos and her husband in the sala of
their house pertaining to some bullets and a hand grenade which the latter gave Robert Santos.
Policewoman Lorenzo went to the sala to pacify the quarelling men only to meet Robert Santos running out of
the house with a bolo and being chased by Agapito Lorenzo who was holding a knife in his hand and whose
clothes were splattered with blood. When Agapito overtook Robert, a struggle for the possession of the bolo
ensued between the two men.
While wrestling, Agapito dropped his knife. Policewoman Lorenzo picked it up and tried to stab Robert with it
but she was so overwhelmed by nervousness that she collapsed into unconsciousness. Seconds later on, she
regained consciousness and found herself beside her dying husband.
Policewoman Lorenzo stood and picked up the knife and bolo. It was at this precise time when Policeman
Eclipse arrived at the scene of the incident.
Policewoman Lorenzo gave the knife and bolo to Policeman Eclipse. The Policeman invited her to go with
him to the Tuguegarao PNP Station. She obliged. When the two arrived at the police station, Policeman
Eclipse, in the presence of Policewoman Lorenzo, reported to the Desk Officer that the latter killed her
husband. Since the policewoman had not yet fully recovered her composure, she did not say anything. 3
The trial court gave full faith and credit to the testimonies of the prosecution witnesses. It found nothing on
record which showed that their impartiality had been vitiated or compromised or that they had any motive to
falsely impute upon the appellant the commission of the crime. It further declared that when the appellant
surrendered the knife and bolo to SPO1 Eclipse and volunteered the information that she killed her husband,
she made an extrajudicial confession and nothing more was needed to prove her culpability. 4 The trial court
held that the confession was admissible for it was not made in violation of paragraph 1, Section 12, Article III
of the Constitution. 5 The appellant was neither under police custody nor under investigation in connection
with the killing of her husband.
The trial court rejected the story of the defense and characterized it as "palpably a put-up scenario . . . . [A]
story which runs against the grain of ordinary reality, controverts logic and assails common sense." 6
First, accused Policewoman Lorenzo testified that it is not true that she confessed to Policeman Eclipse in the
presence of Barangay Captain Liban that she killed her husband. If her denial is true, why did she not correct
or even protest when Policeman Eclipse reported to the Desk Officer that she confessed having killed her
husband? Why did she not even try to correct the entry in the police blotter containing said inculpatory report?
24

On the contrary, by some inexplicable quirk, she even let the cat out when she presented in evidence Exhibit
"1".
Second, accused put forth the theory of her defense: it was not she but Robert Santos who did her husband in.
This theory is shot. If this is true, why did she not tell it to Policeman Eclipse and Barangay Captain Liban at
the scene of the crime? Why did she withhold such a very vital information when she was brought to the
Tuguegarao PNP Station shortly after the incident? But the biggest "why" is: Why did not the accused, wife of
the slain man and policewoman at that, file a criminal case against Robert Santos?
The accused's explanation was: she was still uncomposed when she turned over the knife and bolo to
Policeman Eclipse and even when she was in the police station. She did not also file a case against Robert
Santos because she found herself the suspect and later on the accused.
These reasons do not cut ice. They are for the birds. No one with an ordinary intelligence would buy such
reasons.
Third, the accused never filed a counter-affidavit during the preliminary investigation of this case. Not that a
counter-affidavit is obligatory but that it afforded the accused the best opportunity to explain her innocence
and to identify the "real killer" of her husband. Why did she not grab this chance as normal people in the
same situation would have done?
Fourth, accused version is simply implausible. According to Policewoman Lorenzo, when she saw her
husband Agapito chasing Robert out of the house, Agapito's clothes were already bloodied. Since there is no
proof at all that Robert ever sustained any wound, the implication is that Agapito was already hacked and
stabbed by Robert inside the former's house.
It is therefore, difficult to believe that Agapito who already sustained several wounds could chase Robert
and even harder to imagine that he wrestled with Robert for the possession of the latter's bolo. But why, it may
be asked, should Agapito still try to divest Robert of his bolo when he (Agapito) was holding a knife which he
could have easily used against the latter during the alleged clinching between the two?
Finally, it is very unnatural for "assailant" Robert to have left his bolo before running away from the scene of
the crime. This is a concoction to provide an explanation for the possession of the accused of a knife and a
bolo.
Fifth, the version of accused and her witness Romeo Racheta are even at variance at a very vital point. Thus,
Policewoman Lorenzo said that when Agapito was able to overtake Robert in front of the store of Barangay
Captain Liban, the two struggled for the possession of the bolo of Robert. Witness Racheta however said that
when Agapito chased Robert, he caught up with him when he was already cornered. When Robert could no
longer run anywhere else, he turned around, faced Agapito and hacked and stabbed him many times. Such
inconsistency in the version of the two defense witnesses cannot but heighten one's conviction that the defense
theory is a conjured one. 7
The appellant appealed from the judgment to this Court and in her brief 8 contends that the trial court erred in:
I. . . . GIVING CREDENCE TO THE TESTIMONIES OF PROSECUTION WITNESSES ISABELO
LIBAN AND SPO1 JOSE ECLIPSE.
II. . . . NOT HOLDING THAT THE GUILT OF THE ACCUSED WAS NOT PROVED BEYOND
REASONABLE DOUBT." 9

She discusses these jointly and, in support thereof, she asseverates that the testimonies of Liban and Eclipse
are inconsistent on material points, for while Liban declared in court and stated in his sworn statement that he
(Liban) came out of his house and heard the appellant confess to Eclipse that she killed her husband, Eclipse
testified that Liban did not come out of his house. One of them, she continues, did not tell the truth and argues
that a testimony on her alleged confession, which would be devoid of any evidentiary value without
corroboration.
She pleads that this Court discredit both Liban and Eclipse because the testimony of Liban was improbable
while that of Eclipse "was not so firm and resolute as to what was actually allegedly told him by the accused."
At one time, while testifying, he declared that the appellant told him that she "accidentally injured her
husband," but on another, he testified that the appellant told him that she "killed her husband." 10 Also, as
shown in the entry in the police blotter, 11 Eclipse was reported to have disclosed that the appellant
"voluntarily surrendered and asked him to bring her to the police station because she allegedly killed her
husband named Agapito Lorenzo, Jr. together with Robert Santos who first stabbed him"; yet, in his testimony
in court he pinned down only the appellant and mentioned nothing about Santos. Furthermore, she charges the
prosecution with suppression of evidence in not presenting as a witness another police officer who Eclipse said
accompanied him to the scene of the crime and who used a vehicle which they rode in going to the police
station. 12
Meeting squarely the ratiocinations of the trial court in describing the story of the defense as a "probably putup scenario," the appellant asserts that it was error for the trial court to hold her failure to correct the entry in
the police blotter against her since there is nothing in the records which clearly shows that she heard Eclipse
making the report to the desk officer and that she saw the entry. The appellant also contends that the trial court
erred when it made capital of her alleged failure to file a criminal complaint against Robert Santos since it was
the police's duty to arrest and prosecute Robert Santos, Eclipse having known of Robert Santos' killing of her
husband. Besides, she was in detention all throughout and suffering from trauma. She avers that the trial court
erred when it held against her the failure to file her counter-affidavit, since that was not obligatory and her
non-filing was in accord with her constitutional right to remain silent. Finally, she contends that the
conclusions drawn by the trial court in its evaluation of her testimony and that of her witnesses are mere
speculations.
The appellee agrees with the findings of fact and conclusions of the trial court and prays that the challenged
decision be affirmed.
The pith of the assigned errors and the focus of the appellant's arguments is the issue of the witnesses'
credibility. It is a well-entrenched rule that when such is the issue, appellate courts will generally not disturb
the findings of the trial court considering that the latter is in a better position to decide the question, having
heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless
certain facts of value have been plainly overlooked which, if considered, might affect the result of the case. 13
The trial court has the singular opportunity to observe and consider certain potent aids in understanding and
weighing the testimony of witnesses, such as the emphasis, gesture, and inflection of the voice of the witnesses
while they are on the witness stand. As these are not incorporated into the record, the appellate court cannot
avail of them and must therefore rely on the good judgment of the trial court. 14 The appellant has not
convinced us that the trial court plainly overlooked proved facts or circumstances which, if considered, may
affect the result of this case. We thus accept its assessment of the evidence as correct and consider it binding,
there being no showing that it was reached arbitrarily. 15 Our own evaluation thereof yields no cause for the
application of the exception to the settled rule.
We agree with the trial court that prosecution witness SPO1 Jose Eclipse told the truth when he declared under
oath that the appellant surrendered to him a blood-stained bolo and a fan knife and told him that she killed her
husband. Eclipse happened to be on his way to the scene of the stabbing incident which was reported to him
by a tricycle driver while he was in the performance of his official duty at his assigned post in Barangay
Balzain, Tuguegarao, Cagayan. Eclipse and the appellant both belonged to the same police unit, the PNP at the
Tuguegarao station. There is nothing in the records, and more specifically in the cross-examination of Eclipse
25

and the direct examination of the appellant, which suggests, even remotely, that Eclipse had any improper
motive to implicate a fellow police officer in the commission of a serious crime or the slightest bias against the
appellant which would blemish his objectivity and truthfulness.
If there was any bias, it should have been, logically, in favor of the appellant because of esprit de corps.
Eclipse did not allow that sentiment to compromise his official and public duty as a peace officer. It is settled
that the absence of evidence as to an improper motive strongly tends to sustain the conclusion that none
existed and that the testimony is worthy of full faith and credit, for, indeed, if an accused had nothing to do
with the crime, it would be against the natural order of events and of human nature and against the
presumption of good faith for a prosecution witness to falsely testify against the accused. 16
The appellant's emphasis on the inconsistency in the testimony of Eclipse as to what she actually told him, i.e.,
that she "injured" her husband or "killed" him, is misplaced; the latter word was used when the court asked
him for the precise term used by the appellant. 17
Nor is there merit to the claim that Isabelo Liban's testimony must corroborate Eclipse's testimony or the
confession of the appellant since without such corroboration Eclipse's testimony would have no probative
value. This theory could only be a product of a misunderstanding of Section 3, Rule 133 of the Rules of Court
which provides:
Sec. 3.
Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession
made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus
delicti.
Note that what must be corroborated is the extrajudicial confession and not the testimony of the person to
whom the confession is made, and the corroborative evidence required is not the testimony of another person
who heard the confession but the evidence of corpus delicti. Except when expressly required by law, 18 the
testimony of a single person, if credible and positive and if it satisfies the court as to the guilt of the accused
beyond reasonable doubt, is sufficient to convict. 19 In determining the value and credibility of evidence,
witnesses are to be weighed, not numbered. 20
As to the corroborative evidence of corpus delicti, the appellant herself does not question its presence because
she knows that it has been overwhelmingly established in this case. Corpus delicti is the body (material
substance) upon which a crime has been committed, e.g., the corpse of a murdered man or the charred remains
of a house burned down. In a derivative sense, it means the substantial fact that a crime was committed. It is
made up of two elements: (a) that a certain result has been proved, for example a man has died or a building
has been burned, and (b) that some person is criminally responsible for the act. Section 3, Rule 133 of the
Rules of Court does not mean that every element of the crime charged must be clearly established by
independent evidence apart from the confession. It means merely that there should be some evidence tending
to show the commission of the crime apart from the confession. Otherwise, the utility of the confession as a
species of proof would vanish if it were necessary, in addition to the confession, to adduce other evidence
sufficient to justify conviction independently of such confession. Otherwise stated, the other evidence need
not, independently of the confession, establish the corpus delicti beyond a reasonable doubt. 21
Since the corroboration of Isabelo Liban's testimony was unnecessary, we need not discuss its intrinsic merits,
more especially on its alleged inconsistencies vis-a-vis the testimony of Eclipse which inconsistencies we,
nevertheless, find to be on minor matters. Minor inconsistencies do not affect the credibility of witnesses; on
the contrary, they even tend to strengthen rather than weaken their credibility because they erase any suspicion
of rehearsed testimony. 22
The claim of suppression of evidence has no merit. The testimony of the other policeman whom Eclipse
requested to get a vehicle could only be corroborative in some respects but not of the fact of the surrender of
the blood-stained bolo and fan knife and of the appellant's telling Eclipse that she killed her husband since it

was explicitly shown that he was with Eclipse at the precise time of the surrender. The prosecutor and the
defense counsel asked no further questions of Eclipse to elicit more on the presence of the other policeman. In
any event, even if the latter were present, his testimony would only be corroborative. Furthermore, it has never
been shown that the said policeman was not available to the defense. The presumption laid down in Section
3(e), Rule 131 of the Rules of Court that "evidence willfully suppressed would be adverse if produced" does
not apply when the testimony of the witness not produced would only be corroborative, or when the said
witness is available to the defense because then the evidence would have the same weight against one party as
against the other. 23
We do not, however, agree with the trial court's characterization of the appellant's declaration that she killed
her husband as an extrajudicial confession. It is only an admission. It is clear from Sections 26 and 33, Rule
130 of the Rules of Court that there is a distinction between an admission and a confession. These sections
reads as follows:
Sec. 26.
Admission of a party. The act, declaration or admission of a party as to a relevant fact may be
given in evidence against him.
xxx

xxx

xxx

Sec. 33.
Confession. The declaration of an accused acknowledging his guilt of the offense charged, or
of any offense necessarily included therein, may be given in evidence against him.
In a confession. there is an acknowledgment of guilt. Admission is usually applied in criminal cases to
statements of fact by the accused which do not directly involve an acknowledgment of guilt of the accused or
of the criminal intent to commit the offense with which he is charged. 24 Wharton 25 defines confession as
follows:
A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime
charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and
tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something
less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is
insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt.
Underhill 26 distinguishes a confession from an admission as follows:
A confession is defined as an acknowledgment of guilt of the crime charged or of the facts which constitute
the crime; but it is an admission and not a confession if the facts acknowledged raise an inference of guilt only
when considered with other facts.
While Wigmore 27 says:
A confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the
guilty fact charged or of some essential part of it. 28
Nevertheless, whether it was a confession or an admission, it was admissible against the appellant and, having
been duly proved, together with the other facts and circumstances, the burden of the evidence was shifted to
the appellant to disprove, by strong evidence, that she made the admission or, admitting it, to prove that she
was not guilty of killing her husband. As earlier shown, the trial court characterized her story as "palpably a
put-up scenario

26

. . . . [A] story which runs against the grain of ordinary reality, controverts logic and assails common sense."
The five reasons enumerated by it to support this conclusion are founded on or are inferred from facts duly
established by the prosecution or are otherwise solidly based on common experience, logic, and common
sense.
The trial court had stated that if indeed the appellant never confessed to Eclipse that she killed her husband,
she should have protested when Eclipse reported to the desk officer that she had confessed to the killing of her
husband or she should have attempted to correct the entry in the police blotter containing this inculpatory
report. The appellant demonstrated her penchant for falsehood when, in order to refute this statement, she
asserted in her brief that nothing in the record clearly shows that she heard Eclipse making the report and that
she read the entry in the police blotter. She conveniently forgot that on cross-examination she admitted having
heard Eclipse making the report but claiming that she did not protest because she was not in her right senses
and was in a state of shock at the time. Thus:
Prosecutor Saguncio:
Q Did the desk officer ever talk to you?

Q You heard this and you did not make any comment?
A Yes, sir, but because at this time I was not in my right senses because I was then shocked at that time.
The appellant's failure to assert, at any part of the entire event, from the time she went with Eclipse to the
police station up to the time she was committed to jail and even thereafter until she took the witness stand, that
it was not she who killed her husband only serves to reinforce and strengthen this Court's respect for the trial
court's finding that her story that "it was not she but Robert Santos who did her husband in, "is shot." We find
it incredible that a peace officer and a wife of the victim would not forthwith denounce or reveal the identity of
the assailant if it were true that it was not she who killed her husband. This Court has held that the testimony
of the accused is not credible where he has adopted an attitude of indifference relative to the crime he is
accused of and where he failed to inform the police authorities and the fiscal during the investigation that it
was not he but somebody else who committed the murder. 30
Even granting for the sake of argument that the appellant only surrendered a blood-stained bolo and a fan knife
but did not admit that she killed her husband, we find in this case several circumstances whose concordant
combination and cumulative effect 31 point to the appellant, to the exclusion of all others, as the guilty party.
These circumstances are the following:

A No, sir.
Q So it was only PFC Eclipse who talked to the desk officer?

1. A tricycle driver reported to Eclipse a stabbing incident and the latter immediately proceeded to where it
took place
2. Eclipse met the appellant who had with her a blood-stained bolo and a fan knife;

A Yes, Sir.
Q Within your hearing and you heard PFC Eclipse talked to the desk officer?

3. The appellant surrendered to Eclipse the blood-stained bolo and the fan knife;
4. The appellant's husband lay dead nearby with nine chop wounds, thirteen stab wounds, and nine incised
wounds on different parts of his body, with abrasions and multiple contusions as well; 32

A Yes, Sir.
Q And what did PFC Eclipse report to the desk officer?
A The one that is appearing in the excerpt of the police blotter, sir.

5. Eclipse accompanied the appellant to the police station and, in her presence, the former reported to the desk
officer that she surrendered to him and told him that she had killed her husband; the desk officer then entered
this report in the police blotter;

xxx

6. Although the appellant heard the report, she did not protest to Eclipse or except to the report; and

xxx

xxx

Court:
Q When you said that you heard Pat. Eclipse reported to the desk officer you meant to say that you heard him
telling the police officer that you killed your husband Agapito Lorenzo, Jr. together with Robert Santos who
first stabbed him, is that not so?
A Yes, sir.

7. The appellant never asked the police authorities to investigate Robert Santos for his complicity in the
killing of her husband; despite the unhampered opportunities for her to denounce Santos as the alleged killer
of her husband, she implicated Santos only when she testified on 21 January 1993, 33 or after the lapse of
nearly two and one-half years after the incident.
These circumstances constitute an unbroken chain which leads to one fair and reasonable conclusion that
points to the appellant, to the exclusion of all others, as the guilty person. The requirements then of Section 4,
Rule 133 34 of the Rules of Court on the sufficiency of circumstantial evidence to convict the appellant are
present. 35

Court:
Proceed.
Pros. Saguncio:

To be appreciated in the appellant's favor, however, is the mitigating circumstance of voluntary surrender. The
penalty for parricide under Article 246 of the Revised Penal Code is reclusion perpetua to death, which are
both indivisible penalties. In the light of the mitigating circumstance, the proper penalty which should be
imposed upon the appellant should be reclusion perpetua, pursuant to Rule 3, Article 63 of the Revised Penal
Code.
27

The challenged decision is then in accordance with the facts and the applicable laws.
WHEREFORE, the appealed decision of Branch 5 of the Regional Trial Court of Tuguegarao, Cagayan in
Criminal Case No. 2060-92-TUG is AFFIRMED
Costs against the appellant.
[G.R. No. 118607. March 4, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULITO FRANCO y TIANSON, accused-appellant.
DECISION

The trial court convicted the appellant on the basis principally of his alleged extra-judicial confession.[8] This
is evident from the assailed decision which even quoted the pertinent portions of the aforementioned extrajudicial confession.[9] But gospel truth as it may seem, we cannot stamp with approval the trial court's undue
consideration and reliance on this extra-judicial confession for, as the records reveal, the same was not offered
in evidence by the prosecution.[10] Neither were its contents recited by the appellant in his testimony.[11] It
was a grave error for the trial court, therefore, to have considered the same, let alone be the basis of appellant's
conviction.
We thus reiterate the rule hat the court shall consider no evidence which has not been formally offered.[12] So
fundamental is this injunction that litigants alike are corollarily enjoined to formally offer any evidence which
they desire the court to consider.[13] Mr. Chief Justice Moran explained the rationale behind the rule in this
wise:
x x x "the offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only
and strictly upon the evidence offered by the parties to the suit."[14]

FRANCISCO, J.:
Appellant JULITO FRANCO y TIANSON was charged with[1] and convicted[2] of the crime of robbery with
homicide.[3] He was sentenced to reclusion perpetua and directed to indemnify Dunkin' Donut and the heirs of
Aurelio Cuya, in the amounts of P12,000.00 and P30,000.00, respectively. Contending "that the trial court
erred in convicting x x x him x x x [based] on evidence illegally obtained,"[4] appellant now interposes this
appeal. For its part, the Solicitor General recommended appellant's acquittal on the ground that "his guilt was
not proven beyond reasonable doubt."[5]
The appeal is impressed with merit.
Quoted hereunder is the narration of the factual antecedents of this case, as summarized by the Solicitor
General in its Manifestation,[6] and duly supported by the evidence on record:
On August 9, 1991 at around 6:45 a.m., Angelo Tongko, then an employee of Dunkin Donut located at
Quintin Paredes [Street], Binondo, Manila, discovered the lifeless body of Aurelio Cuya, a security guard of
the said establishment (tsn, Nov. 19, 1991, pp. 2-3). Upon discovery of the lifeless body, Tongko informed his
co-workers, (ibid, p. 3) who then reported the matter to the police (ibid. p, 3).
Upon investigation by the police, the branch supervisor of Dunkin Donut informed the police that the total
sales of the establishment on August 8, 1991 in the amount of P10,000.00 and which was allegedly kept in the
safety locker in the same place where the dead body was found, was missing (ibid, p., 7, Exh. K). The
supervisor of the security agency where the victim was employed also informed the police that he suspected
the appellant as the culprit (ibid, p. 15, Exh. K). Acting on this allegation by the supervisor, the police
proceeded to the place of appellant and were able to interview Maribel Diong ("Diong") and Hilda Dolera
("Dolera") (ibid, p. 15; Exh. L). The police then tried to convince Diong and Dolera, who allegedly told the
police that appellant allegedly confessed to them that he killed somebody in the evening of August 8, 1991
(ibid). Diong and Dolera were not presented in court to substantiate their affidavits.
Based on the alleged statements of Diong and Dolera, the police formed a team to apprehend the appellant
who allegedly had an agreement to meet Dolera (Exh. L). On August 10, 1991, appellant was apprehended by
the police in front of Jollibee Restaurant in Caloocan City (ibid, pp. 9, 16). Allegedly recovered from the
appellant were the amount of P2,415.00 and one handgun which was in his cousin's residence (ibid, p. 16).
Thereafter, appellant was brought to the police headquarters where his confession (Exh. N) was taken on
August 12, 1991 allegedly on his freewill and with the assistance of a lawyer (ibid, pp. 13-14). A booking and
arrest report was also prepared by Pat. Nestor Napao-it on August 12, 1991 (Exh. J).[7]

It cannot be argued either that since the extra-judicial confession has been identified and marked as Exhibit
"N" by the prosecution in the course of the cross-examination of the appellant,[15] then it may now be validly
considered by the trial court. Indeed, there is a significant distinction between identification of documentary
evidence and its formal offer.[16] The former is done in the course of the trial and is accompanied by the
marking of the evidence as an exhibit, while the latter is done only when the party rests its case. Our settled
rule incidentally is that the mere fact that a particular document is identified and marked as an exhibit does not
mean that it has thereby already been offered as part of the evidence of a party.[17]
From the records, it appears that not a single person witnessed the incident. In fact, aside from the testimony of
police investigator Pat. Nestor Napao-it, none of the other three prosecution witnesses, to wit: (1) Angelo
Tongko a Dunkin' Donut employee who testified to have found the body of Aurelio Cuya inside the
supervisor's room of the establishment in the early morning of August 9, 1991,[18] (2) Dr. Marcial Cenido
the physician who autopsied the body of Aurelio Cuya, and who testified on the cause of the latter's death;[19]
and (3) Teresita Cuya the wife of Aurelio Cuya who testified on the civil aspect of the case,[20] ever
imputed, directly or indirectly, to the appellant the commission of the crime. With respect to the testimony of
Pat. Nestor Napao-it,[21] there is no dispute that his testimony on the conduct of the investigation is
admissible in evidence because he has personal knowledge of the same.[22] However, his testimony on
appellant's alleged separate confession/admission to Hilda Dolera and Maribel Diong, which the trial court
invariably considered in its decision as establishing the truth of the facts asserted therein, is hearsay. In the
terse language of Woodroffes, said testimony is "the evidence not of what the witness knows himself but of
what he has heard from others"[23] And whether objected to or not, as in this case, said testimony has no
probative value[24]. To repeat, the failure of the defense to object to the presentation of incompetent evidence,
like hearsay, does not give such evidence any probative value.
Anent the issue of admissibility of Exhibits "F"[25] and "G"[26] original and additional sworn statements
of Maribel Diong, and Exhibits "H"[27] and "I"[28] original and additional sworn statements of Hilda
Dolera, it assumes significance to note that their admission in evidence has been seasonably objected to by the
appellant on the ground that they are hearsay.[29] The trial court nonetheless admitted them "as part of the
testimony of Pat. Nestor Napao-it".[30] While we agree that these exhibits are admissible in evidence, their
admission should be for the purpose merely of establishing that they were in fact executed [31] They do not
establish the truth of the facts asserted therein.[32] In this case, our reading of the assailed decision, however,
reveals that the foregoing exhibits were undoubtedly considered by the trial court as establishing the truth of
the facts asserted therein. And herein lies another fatal error committed by the trial court because, without
Maribel Diong and Hilda Dolera being called to the witness stand to affirm the contents of their sworn
statements, the allegations therein are necessarily hearsay[33] and therefore inadmissible. A contrary rule
would render nugatory appellant's constitutional right of confrontation which guarantees him the right to
cross-examine the witnesses for the prosecution.

28

China Banking Check No. 303100 dated October 7, 1987 in the amount of P3,267,911.10 was
payable to the Municipal Treasurer of Pasig and was drawn by one "D. Noble". The check bears
ENRIQUEZs indorsement at the back and was accompanied by a statement of checks also
bearing the initials of ENRIQUEZ. The subject check was transmitted from the Pasig Treasury to
the Quezon City Treasury as the official district treasury for municipal deposits. According to Benito
Buenviaje, a casual janitor of the Pasig Treasury, on October 15, 1987, ENRIQUEZ instructed him
to get the bundled checks from his table and to deliver them to the Quezon City Treasury. He could
not recall how many checks were taken from the table of the municipal treasurer because they
were already bundled. Benito Buenviaje was issued two official receipts, one of which, O. R. No.
279451, was in the amount of P3,308,774.44, and included the amount of the dishonored check.

Truly, it is our policy to accord proper deference to the factual findings of the court below especially when the
issue pertains to credibility of witnesses. But no such issue is involved here. Instead, the principal issue raised
herein is whether or not the evidence adduced by the prosecution are sufficient to overcome appellant's
constitutional right to be presumed innocent. We believe in the negative, hence, we acquit.
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 33, convicting the appellant of the
crime of robbery with homicide is REVERSED. Appellant JULITO FRANCO y TIANSON is hereby
ACQUITTED and his immediate release from prison is ordered unless he is being held on other legal grounds.
No costs.
[G.R. No. 119239. May 9, 2000]

Several days after, the Quezon City Treasury informed the Pasig Treasury of the dishonor of CBC
Check No. 303100. The check was deposited by the Quezon City Treasury under Account No. 6
with the PNB, Cubao Branch, for credit to the Pasig Treasury but it was dishonored and returned
on October 21, 1987 for the reasons above-mentioned.

FRANCISCO ENRIQUEZ y CRUZ, petitioner, vs. PEOPLE OF THE PHILIPPINES, and

SANDIGANBAYAN, respondents.

The then Mayor Mario Raymundo of Pasig sent a letter-request to the NBI to conduct an
investigation of the alleged shortage and Atty. Federico Opinion, Jr., Chief of the Special Action
Unit of the NBI was designated, together with two (2) other agents to conduct the investigation. As
found by the NBI, the drawer of subject check was a certain "D. Noble", with the account (CBC No.
0026813-6) registered in the name of one Leonora Reyes of EDSA Home Improvement Center,
Inc. In the course of the investigation, Atty. Opinion furnished Eliodoro Constantino, Senior
Document Examiner of the NBI, the initials of accused Enriquez appearing in the subject check and
the statement of checks, together with standards of comparison consisting of several documents. A
comparative examination by the NBI Questioned Document Expert of the specimens submitted
revealed that the questioned and standard sample specimen initials of ENRIQUEZ were not written
by one and the same person. Xsc

[G.R. No. 119285. May 9, 2000]

CARMENCITA G. ESPINOSA, petitioner, vs. The HONORABLE SANDIGANBAYAN, and
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
GONZAGA_REYES, J.:
The instant petitions for review on certiorari seek the reversal of the Sandiganbayans decision of
February 28, 1995, in Criminal Case No. 14385, convicting herein petitioners Francisco C.
Enriquez (ENRIQUEZ) and Carmencita G. Espinosa (ESPINOSA) of the crime of malversation of
public funds, defined in Article 217(4) of the Revised Penal Code.

It appears that less than a month before the dishonor of the subject check or on September 23,
1987, ESPINOSA herself had gone to the Quezon City Treasury to make a deposit of checks and
statement of checks. Felisa Cervantes, Computer Operator of the Quezon City Treasury, accepted
the checks and the corresponding statements and issued Official Receipt No. 279339 in the
amount of P3,583,084.18. ESPINOSA later returned to Felisa Cervantes and requested her to
cross-out the first figure "3" on the official receipt to conform with the actual amount of P583,084.18
deposited therein.

The essential antecedents as can be gathered from the documentary and testimonial evidence are
the following: Sclex
ENRIQUEZ was Municipal Treasurer, while ESPINOSA was Administrative Officer and acting
Municipal Cashier of the Office of the Municipal Treasurer of Pasig (Pasig Treasury). By virtue of
Local Government Audit Order No. 88-01-3, an audit team headed by Carmencita Antasuda as
team leader conducted an audit examination of the cash and accounts of the Pasig Treasury
covering the period from May 4, 1987 to November 30, 1987. The audit disclosed, among other
things, "accused Enriquezs accounts contained a shortage amounting to P3,178,777.41, which
shortage was mainly due to a dishonored China Banking Check No. 303100 dated October 7, 1987
in the amount of P3,267,911.10." Said check was deposited with the Quezon City District Treasury
Office (Quezon City Treasury) as part of the collections of the Pasig Treasury. The check was
dishonored for the following reasons: (a) it was not received in payment of any tax; (b) it was not
acknowledged by an official receipt; (c) the account against which it was drawn was under
garnishment; (d) the signatory therein was not authorized to sign; and (e) it was drawn against
insufficient funds. Xlaw

In an Information dated February 5, 1990, ENRIQUEZ together with ESPINOSA were charged with
Malversation of Public Funds committed as follows: Sc
"That during the period from May 4, 1987 to November 30, 1987, or on dates
subsequent thereto, in the Municipality of Pasig, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the said accused Francisco C.
Enriquez being then the Municipal Treasurer of Pasig, Metro Manila,
Carmencita Espinosa then the Administrative Officer I and designated as
Cashier in the Office of the Municipal Treasurer of Pasig, Metro Manila and
Belinda Santos[1], a Clerk in the Realty Tax Section and designated as Asst.
Cashier in the Treasurers Office of Pasig, Metro Manila, duly
appointed/designated and qualified as such, hence, all accountable officers by
reason of the duties of their respective offices, accountable for the funds and
properties received by them in their official positions as such, conspiring and
confederating with each other and taking advantage of their official positions
with wanton disregard of auditing laws, rules and regulations, did then and
there willfully, unlawfully and feloniously and with grave abuse of confidence,
misappropriate, misapply and convert to their own personal use and benefit
the amount of THREE MILLION ONE HUNDRED SEVENTY EIGHT

On December 3, 1987, a letter of demand was sent to ENRIQUEZ by the Commission on Audit
(COA) to restitute the value of the dishonored check. In a reply dated December 5, 1987,
ENRIQUEZ denied responsibility for the shortage and pointed to ESPINOSA as the one to whom
the letter of demand should be addressed as the custodian of said check

29

the municipal treasurers accounts of a check in the amount of P3,267,911.10

drawn against the China Banking Corporation, dated October 7, 1987 (Exhibit
E). As testified to by prosecution witness Auditor Carmelita Antasuda, said
check was made to form part of the collections of the municipal treasurer,
sometime in October 1987, despite the fact that there was no official receipt
appearing to have been issued for it and neither does it appear to have been
issued in payment of taxes or obligations due to the municipality of Pasig.
Afterwards, said check, bearing accused Enriquez indorsement at the back,
was included in a statement of checks (Exhibit P) prepared in the Pasig
Municipal Treasurers Office for transmittal to, and deposit with, the Quezon
City Treasurers Office, the latter being the official district treasury for municipal
deposits. Missc

THOUSAND SEVEN HUNDRED SEVENTY-SEVEN AND 41/100

(P3,178,777.41), Philippine currency, from the said public funds received by
them in their respective official positions aforementioned in the Office of the
Municipal Treasurer of Pasig, Metro Manila , to the damage and prejudice of
the government.
CONTRARY TO LAW."[2]
When arraigned, on April 23, 1990, ENRIQUEZ and ESPINOSA pleaded not guilty to the charge.
After trial, the Sandiganbayan rendered its judgment, promulgated on February 28, 1995,
convicting ENRIQUEZ and ESPINOSA, thusly: Scmis

The statement of the checks (Exhibit P), together with the check in question
(Exhibit E), and another statement of checks (Exhibit 7-Espinosa) was
admittedly brought by Benito Buenviaje, a casual janitor in the municipal
treasurers office, upon the instruction of accused Enriquez to the Quezon City
Treasurers Office and received thereat on October 15, 1987. Buenviaje was
issued two official receipts, one of which, O. R. No. 279451 (Exhibit 7-bEnriquez), was in the amount of P3,308,774.44, which included the dishonored
check (Exhibit M-1, Page 2 par. 3). The check was deposited by the Quezon
City Treasury Office under Account No. 6 with the PNB, Cubao, Branch, for
credit to the Pasig municipal treasury but it was dishonored and returned on
October 21, 1987 because the account was under garnishment and the check
had an unauthorized signatory (Exhibit E-2). As found by the NBI, the drawer
of the said check was a certain "D. Noble", with the account (CBC No.
0026813) being in the name of one Leonora Reyes of EDSA Home
Improvement Center, Inc. (Exhibit M-1, page 3, par. 5).

"WHEREFORE, judgment is hereby rendered finding both accused Francisco

Enriquez y Cruz and Carmencita Espinosa y Gonzales GUILTY beyond
reasonable doubt as co-principals in the offense of Malversation of Public
Funds, as defined and penalized under Article 217, paragraph 4 of the Revised
Penal Code and crediting each of them with the mitigating circumstance of
voluntary surrender, without any aggravating circumstance in offset, and
applying the Indeterminate Sentence Law, each of them is hereby sentenced
to suffer the indeterminate penalty ranging from TEN (10) YEARS and ONE (1)
DAY of prision mayor, as the minimum, to SEVENTEEN (17) YEARS, FOUR
(4) MONTHS and ONE (1) DAY of reclusion temporal, as the maximum; to
further suffer perpetual special disqualification; to pay, jointly and severally, the
Government of the Republic of the Philippines in the same amount
of P3,178,177.41, and to pay their proportional share of the costs of the action.
SO ORDERED."[3]

Hence, as of October 15, 1987, the municipal collections had a virus fatally
imbedded within it, a wayward private check which cannot lawfully be credited
to the municipal treasury or to the accountability of either of the accused
herein, as primary and secondary accountable officers. Worse, on September
23, 1987, accused Espinosa had tried to foist a similar scam by personally
bringing to the District Treasury in Quezon City bundles of checks listed in
three (3) statements of checks, dated September 15, 1987 and signed by
accused Enriquez, totaling P583,084.18 (Exhibits 22, 22-a and 22-bEspinosa). While the total amount on the adding machine tapes when
presented, was P3,583,084.18, as testified to by Maria Felisa Cervantes (TSN,
pp. 6-31, May 21, 1991), with accused Espinosa being issued Official Receipt
No. 279339 (Exhibits 11-to11-d-Enriquez), she later returned to Cervantes and
said she had committed a mistake and had Cervantes cross out the figure 3"
in said receipt to conform with the actual amount of the checks which was
P583,084.18 only.

Accused ENRIQUEZ and ESPINOSA blamed each other for the shortage. ENRIQUEZ tried to
show that he is not the custodian of the funds of the municipality and that it is ESPINOSA and the
deceased co-accused Belinda Santos who had custody and safekeeping over the funds and the
keys to the vault. For her part, ESPINOSA claimed that it was accused ENRIQUEZ and Imelda San
Agustin, the duly appointed cashier who are the ones responsible for the alleged shortage. The
Sandiganbayan found that ENRIQUEZ and ESPINOSA in conspiracy with each other
misappropriated public funds in their custody and sought to cover up the shortages already existing
in the municipal treasurys collections by depositing the subject China Banking Corporation check
in the amount of P3,178,777.41. The Sandiganbayan, in its assailed decision, ratiocinated thus:
"xxx xxx xxx.
From the narration of the evidence, testimonial and documentary, adduced by
both accused Enriquez and Espinosa in their defense, it appears that certain
circumstances of paramount importance have been ignored or overlooked by
the defense, considering the foregoing admitted facts on record, which are,
that the instant prosecution is for Malversation of Public funds and that once a
shortage in said funds had been established, it is the accountable officer (or
officers) who bear(s) the obligation to submit a satisfactory explanation as to
why he (or they) should not be held accountable therefor (Article 217, Revised
Penal Code).

Coupled with the same scenario that transpired on October 15, 1987 with
respect to the dishonored CBC Check in the amount of P3,267,911.10 (Exhibit
E), which likewise reached the Quezon City Treasurers Office thru a
statement of checks signed by accused Enriquez (Exhibit P), then it can
logically be presumed that during the months of September and October,
1987, both accused Enriquez and Espinosa were already aware of an
impending shortage in their accountabilities in the neighborhood of P3-million
and were attempting to conceal or cover-up this shortage through the
same modus operandi. Misspped

These circumstances have not been thoroughly nor diligently delved into by
either of the accused, who were apparently more concentrated in pointing to
each other and shifting the blame for the appearance and/or introduction into
30

The audit examination which was conducted on December 1, 1987 (Exhibit D)

covered the period from May 4, 1987 to November 30, 1987. The shortage
of P3,178,777.41 was arrived at as follows:

Underfooting of collections ( .80

Total P 3,178,777.42

"Accountability:

It would appear probable, therefore, that even as early as May and prior to
October 15, 1987, the shortage had already existed in the municipal accounts,
traceable to and aggravated by over-recording/under-recording of withdrawals,
under-remittance/over-remittance or collections, over-recording of deposits,
over-footing of expenditures, over-footing/underfooting of collections and, most
importantly, the dishonored CBC Check for P3,267,911.10 (Exhibit E). Since
the total accountability of P7,475,651.30, as found by the audit team less cash
and valid cash items amount to P4,296,873.89 still resulted in a shortage
of P3,178,777.42 then the only logical and plausible conclusion to be arrived at
is that collections were, indeed, short between May 4, 1987 and November 30,
1987 and, consequently, efforts had to be exerted by accused Enriquez and
Espinosa, even including resort to extra-legal measures, to conceal and/or
cover-up the missing public funds. Naturally, such measures can only be
resorted to and utilized by the personnel therein who would be held
responsible for any shortage that would ultimately be found. They are accused
Enriquez, the primary accountable officer, being the municipal treasurer, and
accused Espinosa and the late accused Belinda Tuao-Santos, whom he had
designated as Cashier and Assistant Cashier as early as December 3, 1984
(Exhibit C-1), and who performed the duties appurtenant thereto despite the
appointment of Imelda San Agustin as Cashier on July 1, 1987 (Exhibit 1Espinosa). As to why accused Enriquez still allowed accused Espinosa, and
the late accused Santos, whose actual appointments were those of
Administrative Officer I and Revenue Collection Clerk, respectively (Exhibits C
and A), to continue discharging the duties and functions of Cashier and Asst.
Cashier after July 1, 1987, only he can explain. The burden, likewise, is on him
to explain why he allowed all three of them (San Agustin, Espinosa and
Santos) to perform over-lapping work and permitted a situation to arise where
accountability could not be pin-pointed for collections, cash-counts and
remittances." Spped

Beginning Balance, May

4, 1987 P 17,843,0007.26
Add: Collections and
Withdrawals 184,065.858.18
Total P 201,908,865.44
Less: Disbursements and
Deposits 194,433,214.14
Balance of Accountability P 7,475,651.30
Cash and Valid Cash Items 4,296,873.89
Shortage P 3,178,177.41
The shortage is accounted for as follows:
Disallowed cash item CBC

xxx xxx xxx

Check #303100 P 3,267,911.10

"As reflected on the record, accused Enriquez and Espinosa were engaged in
mutual recriminations, with the former pointing to the latter, and the latter
pointing to the former and Imelda San Agustin, as the ones responsible for the
irregular entry and receipt of the dishonored CBC Check for P3,278,161.10
(Exhibit E) as part of the municipal collections, with accused Enriquez even
denying his signatures/initials on the check itself and the statement of check
(Exhibit P), through which said dishonored check was remitted to the Quezon
City Treasurers Office. But, as We have previously pointed out, for purposes
of the instant prosecution, it is completely and entirely immaterial and
irrelevant as to who received said CBC check and who remitted the same as
part of the municipal collections. What should be explained is why no official
receipt was issued therefor and wherein will be seen the nature and purpose
for the issuance of the check and why it had to be utilized for covering up
shortages already existing in the municipal treasurys collections.

Overrecording of withdrawals ( 100,018.10)

Underrecording of withdrawals 10,001.18
Underremittance of collections 1,410.55
Overremittance of collections ( 539.00)
Overrecording of deposits 10.40
Overfooting of expenditures .53

There being no evidence on record to the contrary, then We can logically

presume that the dishonored check (Exhibit E) had been utilized for either of
these objectives, to wit: (a) it was surreptitiously encashed with the municipal
treasury through a revenue collection clerk or someone performing collection

Overfooting of collections ( .04)

31

tasks, most probably accused Santos, and after which the check was included
in the Daily Statements of Collections, or (b) it was borrowed from the account
holder, Leonora Reyes, or from one D. Noble who was in possession thereof,
for the specific purpose of covering-up missing collections in the municipal
treasury. Either way, the transaction was irregular and improper, as were other
transactions in said office. As pointed out by Auditor Antasuda in her
Memorandum for the Chairman, COA, dated July 15, 1988 (Exhibit F-1), the
audit examination revealed that not all the checks in the municipal treasury
were deposited intact; there were delayed deposits of collections; it took one
month or more for collections to be deposited with the District Treasurer; the
cash balances always exceeded the cash reserve limit; cash was transferred
from one fund to another with check collections being used to replace the
transferred cash; there were loose controls and no control records in the
handling of dishonored checks, and delayed issuance of receipts on check
payments, among many other defects and deficiencies (Exhibit F-1 a)."[4]

The crime of malversation for which ENRIQUEZ and ESPINOSA had been charged is defined
under Article 217 of the Revised Penal Code, its pertinent provisions read:
"ART. 217. Malversation of public funds or property Presumption of
malversation. - Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall
take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or
property, wholly or partially, or shall otherwise be guilty of the misappropriation
or malversation of such funds or property, xxx."
xxx xxx xxx.
The failure of the public officer to have duly forthcoming such public funds or
property, upon demand by a duly authorized officer, "shall be prima
facie evidence that he has put such missing funds or property to personal use."

xxx xxx xxx.

Through their separate petitions for review, ENRIQUEZ and ESPINOSA come to this Court for
relief respectively raising numerous and lengthy assigned errors which we shall summarize herein.
For ENRIQUEZ, that the Sandiganbayan erred in convicting him: 1. despite absence of proof of the
missing funds; 2. despite the overwhelming and unrebutted evidence that he had no participation in
the negotiation of the subject check; and 3. despite the inherent weakness of the prosecution
evidence. For ESPINOSA, that the Sandiganbayan erred in convicting her: 1. considering she was
not an accountable officer at the time the alleged shortage was incurred; 2. there was no proof that
she tried to conceal or cover-up the missing public funds; 3. there was no proof that she collected,
misappropriated or spent the missing funds for her own personal benefit; and 4. the prosecution
failed to prove her guilt beyond reasonable doubt. Jospped

The elements of malversation under the above penal provision are:

(a) That the offender is a public officer.
(b) That he has the custody or control of funds or property by reason of the
duties of his office.
(c) That those funds or property are public funds or property for which he is
accountable.

The arguments boil down to whether or not ENRIQUEZ and ESPINOSA had incurred a shortage in
their accounts as Municipal Treasurer and Administrative Officer/designated as Acting Cashier,
respectively, which they had attempted to conceal through a bad check. Sppedjo

(d) That he appropriated, took, misappropriated or consented or, through

abandonment or negligence, permitted another person to take them. [7]
Verily, the first two elements are present in this case. The findings of the Sandiganbayan that
ENRIQUEZ and ESPINOSA are public officers who have the custody or control of funds or
property by reason of the duties of their office are duly supported by the evidence. It is the last two
elements, i.e., whether or not the amount represented in the dishonored check constituted public
funds and whether ENRIQUEZ and/or ESPINOSA really misappropriated said public funds, where
the instant petitions focus themselves. We are constrained to conclude that the prosecution, upon
whose burden was laden the task of establishing proof beyond reasonable doubt that petitioners
had committed the offense charged, failed to discharge this obligation. The Sandiganbayan found
the denials of the accused and their acts of shifting the blame and passing the responsibility for the
dishonored check to each other as unacceptable and indicative of their guilt. However, it must be
emphasized that although the evidence for the defense may be characterized as weak, criminal
conviction must come from the strength of the prosecutions evidence and not from the weakness
of the defense.[8] We are not convinced that the evidence in this case has proven beyond
reasonable doubt that the accused are guilty of the crime charged for reasons stated
hereunder: Nexold

In Diaz vs. Sandiganbayan,[5] this Court held:

"Generally, the factual findings of the Sandiganbayan are conclusive upon this
Court but there are established exceptions to that rule, such
as, sans preclusion:, when (1) the conclusion is a finding grounded entirely on
speculation, surmise and conjecture; (2) the inference made is manifestly an
error or founded on a mistake; (3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of facts; and (5) the findings of fact are
premised on a want of evidence and/or contradicted by evidence on record. In
these instances, this Court is bound to review the facts in order to avoid a
miscarriage of justice."[6]
We could do no less than to re-examine the evidence on record considering that the decision of the
Sandiganbayan, pertinent portions of which we have quoted earlier, appears to be grounded on
probabilities and conjecture. Miso

First. There is no evidence to prove that the Pasig Treasury incurred a cash shortage in the amount
of P3,178,777.41, which amount, incidentally, is even less than the amount of the dishonored
check. As per report of the audit team, the alleged shortage was computed and based on the value
of the dishonored check. We reproduce again the pertinent portion of the audit examination relied
upon by the Sandiganbayan to establish the shortage:

After an assiduous scrutiny of the pleadings and the evidence, testimonial and documentary, the
Court is convinced that the acquittal of ENRIQUEZ and ESPINOSA must be decreed.

32

"The shortage is accounted for as follows:

Q: In other words from the months of May, June, July, August and September,
there was not shown or you were not able to discover whether there had been
losses already during those months?

Disallowed cash item CBC

A: No sir.

Check #303100 P 3,267,911.10

Q: In your testimony last Friday you related to us that only checks were
remitted from Pasig to Quezon City Treasury and the cash collections were
retained in Pasig to take care of payments for local obligations, is that right?

Overrecording of withdrawals ( 100,018.10)

Underrecording of withdrawals 10,001.18

A: Yes sir.
Underremittance of collections 1,410.55
Overremittance of collections ( 539.00)

Q: Now, you also stated that you were not able to determine whether checks
or cash or whether just cash was supposed to have been lost; is that right?

Overrecording of deposits 10.40

A: Yes sir.

Overfooting of expenditures .53

Q: Now, if a check, as you also said is payable always to the Municipal

Treasury of Pasig, is that right?

Overfooting of collections ( .04)

A: Yes sir.
Underfooting of collections ( .80
Total P3,178,777.42"

Q: If a check was lost, the record of the Municipal Treasurer of Pasig would
record the payment as record the obligations of the payee as unpaid; is that
right?

[9]

As stated in the assailed decision, it was only the drawn check, based on the audit examination
that brought about the shortage. It was palpable error for the Sandiganbayan to conclude that the
check which the audit team had pinpointed as the shortage due to its dishonor was at the same
time, intended and used by ENRIQUEZ and ESPINOSA to "cover up" shortages in the funds
allegedly in their custody. The shortage must be clearly established as a fact, i.e., that over and
above the funds found by the auditor in the actual possession of the accountable officers, there is
an additional amount of P3,178.777.42 which could no longer be produced or accounted for at the
time of audit. Evidence of shortage is necessary before there could be any taking, appropriation,
conversion, or loss of public funds that would amount to malversation. It makes no sense for any
bogus check to be produced to "cover up" an inexistent malversation. [10]

A: When was the check was lost.

Indeed, no less than the sole witness for the prosecution, audit team leader, Carmelita Antasuda,
who conducted the cash count and cash examination of the Pasig Treasury, testified that based on
their audit examination, it was only the subject check that brought about the shortage. Her
testimony on this point goes:

ATTY. SANCHEZ:

Q: Supposing a check was paid to the Municipal Treasurer of Pasig was lost or
was not encashed?
JUSTICE ESCAREAL:
Q: While in the possession of?

Q: Of the Treasurer of Pasig, meaning it did not enter the cash collections, the
encashment of the checks did not enter the treasurer of Pasig would not the
obligation for which that amount in check was paid be recorded as still unpaid?

Q: Now, your examination covered the months from May to November, 1987,
were you able to determine whether in May there were already missing funds
from the Treasury of Pasig?

A: I would like to clear that. When payments are made in the Municipal
Treasurer of Pasig through checks it is automatically issued an official receipt
for that payment and the check and. and the fact that it is already issued an
official receipt it follows that the taxpayer had already paid the amount of his
tax.

A: In our examination we cannot determine if there were missing funds prior to

our cut-off date.

JUSTICE ESCAREAL:
33

Q: In this particular case, did you find any official receipt issued for the check?

"At this juncture, it may not be amiss to state that considering the gravity of the
offense of Malversation of Public Funds, just as government treasurers are
held to strict accountability as regards funds entrusted to them in a fiduciary
capacity, so also should examining COA auditors act with greater care and
caution in the audit of the accounts of such accountable officers to avoid the
perpetration of any injustice. Accounts should be examined carefully and
thoroughly "to the last detail," "with absolute certainty" in strict compliance with
the Manual of Instructions. x x x."

A: None, Your Honor. There has been no official receipt issued to that
particular check.
Q: In the name of the drawer Dean Noble you did not find any official receipt?
A; No sir.

Apparently, the Sandiganbayan relied on the statutory presumption that the "[f]ailure of a public
officer to have duly forthcoming any public funds with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put such missing funds or
property to personal uses." It must be emphasized that the prima facie presumption arises only if
there is no issue as to the accuracy, correctness, and regularity of the audit findings and if the fact
that funds are missing is indubitably established.[15] In the instant case, audit team leader Carmelita
Antasuda could not even equivocally state whether it was cash or check that was lost, if at all there
was any, belying the accuracy and correctness of the teams audit report.

Q: There was no receipt for Mr. Noble in the record of the Treasury of Pasig?
A: None, Your Honor.
JUSTICE ESCAREAL:
You may now proceed.

Second. There is no evidence that ENRIQUEZ or ESPINOSA had received such an amount which
they could no longer produce or account for at the time of the audit. The Sandiganbayan merely
speculated that it was "surreptitiously encashed with the municipal treasury through a revenue
collection clerk or someone performing collection tasks" or "it was borrowed from the account
holder for the purpose of covering-up missing collections." In its own words the subject check was
a "wayward private check which cannot lawfully be credited to the municipal treasury or to the
accountability of either of the accused herein, as primary and secondary accountable
officers."[16] For this reason, the Sandiganbayan had to rely on its cover-up theory which is not
plausible from the evidence on record. Maniks

ATTY. SANCHEZ:
Q: Now, if these cash collections were lost where the object of whatever
manipulation that was done according to the charge in this case only cash
collections is not the basis of your statement in your recommendation number
1 in Exhibit F, your report is not the basis of that recommendation of yours the
fact that these cash collections were lost?

Third. There is no showing that the subject check was received by the Pasig Treasury in an official
capacity; that there was a duty to receive or collect the said amount; and that there was an
obligation to account for the same. The evidence submitted, just to the contrary, would point out
that the subject check was not issued in payment of taxes or obligations due to the municipality and
consequently no official receipt was issued for it. Indeed, the subject check never formed a portion
of the public funds of the municipality for which either ENRIQUEZ or ESPINOSA are accountable
for. Manikan

A: In our examination, sir the result that the shortage was on a check
corresponding to the amount of the check and it is that check which we
disallowed so we do not know if it was cash or it was that check that was
cashed that was taken only that we know that it was that check that we
disallowed in audit and it is that check that resulted in the shortage."[11]
Equally revealing from the above-quoted testimony of Carmelita Antasuda is her declaration that
they could not identify whether it was cash or check that was lost. This admission by the audit team
leader necessarily weakens the reliability of the audit findings. The respondent court itself gathered
from Antasudas cross-examination as follows: Manikx

Fourth. The Sandiganbayan clearly erred in inferring from the incident that transpired on
September 23, 1987, wherein ESPINOSA deposited checks with the Quezon City Treasury for
which she was issued an official receipt in the amount of P3,583,084.18, but which she later
corrected to conform to the actual amount of the checks as P583,084.18, as indicative of a modus
operandi to cover-up a shortage in the amount of P3 million. ESPINOSA has explained, and her
testimony remains unrebutted, that she requested that the correction be made because she
discovered 15 minutes after she was issued the official receipt that the checks and the
accompanying statements of checks[17] had not been endorsed and signed by ENRIQUEZ.
Moreover, the general rule is that the law will not consider evidence that a person has done a
certain act at a particular time as probative of a contention that he has done a similar act at another
time. This is the rule of res inter alios acta[18] found in Section 34, Rule 130 of the Rules of Court,
as amended.[19] Said incident could not even sufficiently establish a plan or scheme between
ENRIQUEZ and ESPINOSA to cover-up a shortage that has never been proven. Oldmiso

"The cashbook that they examined covered the months of May to November
1987 and they conduct cash examinations twice a year. Based on their review,
Auditor Diche conducted two cash counts from May to November 1987, one in
September 23, 1987 and another on October 9, 1987 but she does not know
what were the results of her cash counts. They were not able to find out as to
when the check (Exhibit E) was actually entered in the municipal treasury
because the collection voucher does not bear any collection pertaining to said
check. Neither were they able to discover whether there had been losses
during the months from May to September 1987. In fact, there has been no
official receipt issued for the said check. They did not find anything irregular in
the statements of checks turned over to them by Imelda Augustin.xxx"[12]

In view of the foregoing, the presumption is that ENRIQUEZ and ESPINOSA are innocent, and the
presumption continues up to the moment their guilt is proved beyond reasonable doubt. To justify
their conviction of the offense charged, the evidence must establish their guilt to a moral certainty.
In the instant case, the proofs on record fall short of that required criterion. Consequently, the

Evidently, the audit examination lacked the thoroughness and completeness required by the
Manual of Instructions to Treasurers and Auditors and Other Guidelines. [13] In People vs. Tinga[14],
the Court had occasion to state:
34

degree of moral certainty required to justify conviction for this particular offense is sorely wanting
and petitioners acquittal thereof must be adjudged.

Petitioner Norberto Feria y Pacquing has been under detention since May 21, 1981, up to
present[1] by reason of his conviction of the crime of Robbery with Homicide, in Criminal Case No.
60677, by the Regional Trial Court of Manila, Branch 2, for the jeepney hold-up and killing of United
States Peace Corps Volunteer Margaret Viviene Carmona.

To repeat, the only facts established by the evidence against ENRIQUEZ is that he instructed
Benito Buenviaje to deliver the bundled checks placed on his desk which apparently included the
bogus check. His intials appearing thereon were found to be forged by the NBI. On the other hand,
the acts established against ESPINOSA consisted of what transpired at the Quezon City Treasury
on September 23, 1987. We cannot, however, derive from these circumstances, without more, a
conclusion that ENRIQUEZ and ESPINOSA pocketed an amount of more than 3 million pesos from
the funds in their capacity as accountable public officers and, to prevent discovery, had caused the
issuance of the bogus check to cover up the shortage. Ncm

Some twelve (12) years later, or on June 9, 1993, petitioner sought to be transferred from the
Manila City Jail to the Bureau of Corrections in Muntinlupa City,[2] but the Jail Warden of the Manila
City Jail informed the Presiding Judge of the RTC-Manila, Branch 2, that the transfer cannot be
effected without the submission of the requirements, namely, the Commitment Order or Mittimus,
Decision, and Information.[3] It was then discovered that the entire records of the case, including the
copy of the judgment, were missing. In response to the inquiries made by counsel of petitioner,
both the Office of the City Prosecutor of Manila and the Clerk of Court of Regional Trial Court of
Manila, Branch 2 attested to the fact that the records of Criminal Case No. 60677 could not be
found in their respective offices. Upon further inquiries, the entire records appear to have been lost
or destroyed in the fire which occurred at the second and third floor of the Manila City Hall on
November 3, 1986.[4]

There would appear to have been lapses or deficiencies in the observance of auditing rules and
regulations in the handling of the funds of the municipal treasury e. g. delay in deposits of
collections, cash balances exceeding cash reserve limit, loose controls and no control records, etc.
as pointed out by the audit team, and questions as to how a private check was bundled together
with legitimate collections of the Pasig Treasury for transmittal to the Quezon City Treasury, but the
same do not warrant a finding of criminal culpability, which requires proof beyond reasonable doubt
on the part of ENRIQUEZ and ESPINOSA. However, the Chairman of the Commission on Audit
should be apprised of this decision for whatever action he may deem appropriate.

On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus[5] with
the Supreme Court against the Jail Warden of the Manila City Jail, the Presiding Judge of Branch
2, Regional Trial Court of Manila, and the City Prosecutor of Manila, praying for his discharge from
confinement on the ground that his continued detention without any valid judgment is illegal and
violative of his constitutional right to due process.

WHEREFORE, the decision of the Sandiganbayan (Second Division) promulgated on February 28,
1995 is REVERSED and SET ASIDE, and the petitioners Francisco C. Enriquez and Carmencita
G. Espinosa are ACQUITTED of the charge of malversation of public funds under Article 217(4) of
the Revised Penal Code. The Division Clerk of Court is directed to furnish the Chairman of the
Commission on Audit copies of this decision.

In its Resolution dated October 10, 1994,[6] the Second Division of this Court resolved " x x x (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive
Judge of the Regional Trial Court of Manila to conduct an immediate RAFFLE
of this case among the incumbent judges thereof; and (c) to REQUIRE [1] the
Judge to whom this case is raffled to SET the case for HEARING on Thursday,
October 13, 1994 at 8:30 A.M., try and decide the same on the merits and
thereafter FURNISH this Court with a copy of his decision thereon; [2] the
respondents to make a RETURN of the Writ on or before the close of office
hours on Wednesday, October 12, 1994 and APPEAR PERSONALLY and
PRODUCE the person of Norberto Feria y Pa[c]quing on the aforesaid date
and time of hearing to the Judge to whom this case is raffled, and [3] the
Director General, Philippine National Police, through his duly authorized
representative(s) to SERVE the Writ and Petition, and make a RETURN
thereof as provided by law and, specifically, his duly authorized
representative(s) to APPEAR PERSONALLY and ESCORT the person of
Norberto Feria y Pa[c]quing at the aforesaid date and time of hearing."

[G.R. No. 122954. February 15, 2000]

NORBERTO FERIA Y PACQUING, petitioner, vs. THE COURT OF APPEALS, THE DIRECTOR
OF THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE
JAIL WARDEN OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH II,
REGIONAL TRIAL COURT OF MANILA, and THE CITY PROSECUTOR, CITY OF
MANILA, respondents.
DECISION
QUISUMBING, J.:
The mere loss or destruction of the records of a criminal case subsequent to conviction of the
accused will not render the judgment of conviction void, nor will it warrant the release of the convict
by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of judicial records
which is as much a duty of the prosecution as of the defense.

The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which on November
15, 1994, after hearing, issued an Order[7] dismissing the case on the ground that the mere loss of
the records of the case does not invalidate the judgment or commitment nor authorize the release
of the petitioner, and that the proper remedy would be reconstitution of the records of the case
which should be filed with the court which rendered the decision.

Subject of this petition for review on certiorari are (1) the Decision dated April 28, 1995, of the
Eighth Division of the Court of Appeals, which affirmed the dismissal of the petition for habeas
corpus filed by petitioner, and (2) the Resolution of the Court of Appeals dated December 1, 1995,
which denied the Motion for Reconsideration. As hereafter elucidated, we sustain the judgment of
respondent appellate court.

Petitioner duly appealed said Order to the Court of Appeals, which on April 28, 1995, rendered the
assailed Decision[8] affirming the decision of the trial court with the modification that "in the interest
of orderly administration of justice" and "under the peculiar facts of the case" petitioner may be
transferred to the Bureau of Corrections in Muntinlupa City without submission of the requirements
(Mittimus, Decision and Information) but without prejudice to the reconstitution of the original
records.

Based on the available records and the admissions of the parties, the antecedents of the present
petition are as follows:
35

In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding that -[16]

The Motion for Reconsideration of the aforesaid Order having been denied for lack of
merit,[9] petitioner is now before us on certiorari, assigning the following errors of law:[10]

"During the trial and on manifestation and arguments made by the accused,
his learned counsel and Solicitor Alexander G. Gesmundo who appeared for
the respondents, it appears clear and indubitable that:

I. WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF

THIS CASE, WHERE THE RECORDS OF CONVICTION WERE LOST, THE
PETITIONERS CONTINUED INCARCERATION IS JUSTIFIED UNDER THE
LAW.

(A) Petitioner had been charged with Robbery with

Homicide in Criminal Case No. 60677, Illegal Possession
of Firearm in Criminal Case No. 60678 and Robbery in
Band in Criminal Case No. 60867. ... In Criminal Case No.
60677 (Robbery with Homicide) the accused admitted in
open Court that a decision was read to him in open
Court by a personnel of the respondent Court (RTC
Branch II) sentencing him to Life Imprisonment
(Habang buhay)..." (emphasis supplied)

COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS

RESOLUTION, AFFIRMING THE DENIAL OF HEREIN APPELLANTS
PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A
JUDGMENT OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS
A SUFFICIENT BASIS FOR HIS INCARCERATION.
II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS
LOST/DESTROYED SHOULD BE INITIATED BY THE GOVERNMENT AND
ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE PRISONER,
WHOSE LIBERTY IS RESTRAINED.

Further, in the Urgent Motion for the Issuance of Commitment Order of the Above Entitled Criminal
Case dated June 8, 1993,[17] petitioner himself stated that -

Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as
required by Sections 1 and 2 of Rule 120 of the Rules of Court,[11] and that the evidence considered
by the trial court and Court of Appeals in the habeas corpus proceedings did not establish
the contents of such judgment. Petitioner further contends that our ruling in Gunabe v. Director of
Prisons, 77 Phil. 993, 995 (1947), that "reconstitution is as much the duty of the prosecution as of
the defense" has been modified or abandoned in the subsequent case of Ordonez v. Director of
Prisons, 235 SCRA 152, 155 (1994), wherein we held that "[i]t is not the fault of the prisoners that
the records cannot now be found. If anyone is to be blamed, it surely cannot be the prisoners, who
were not the custodians of those records."

"COMES NOW, the undersigned accused in the above entitled criminal case
and unto this Honorable Court most respectfully move:

In its Comment,[12] the Office of the Solicitor General contends that the sole inquiry in this habeas
corpus proceeding is whether or not there is legal basis to detain petitioner. The OSG maintains
that public respondents have more than sufficiently shown the existence of a legal ground for
petitioners continued incarceration, viz., his conviction by final judgment, and under Section 4 of
Rule 102 of the Rules of Court, the discharge of a person suffering imprisonment under lawful
judgment is not authorized. Petitioners remedy, therefore, is not a petition for habeas corpus but a
proceeding for the reconstitution of judicial records.

3. That after the sentence was promulgated, the Presiding Judge told the
councel (sic) that accused has the right to appeal the decision;

The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best
and only sufficient defense of personal freedom.[13] It secures to a prisoner the right to have the
cause of his detention examined and determined by a court of justice, and to have the issue
ascertained as to whether he is held under lawful authority. [14] Consequently, the writ may also be
availed of where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction to impose
the sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such
excess.[15] Petitioners claim is anchored on the first ground considering, as he claims, that his
continued detention, notwithstanding the lack of a copy of a valid judgment of conviction, is
violative of his constitutional right to due process.

5. That everytime there is change of Warden at the Manila City Jail attempts
were made to get the Commitment Order so that transfer of the accused to the
Bureau of Corrections can be affected, but all in vain;"

1. That in 1981 the accused was charge of (sic) Robbery with Homicide;
2. That after four years of trial, the court found the accused guilty and
given a Life Sentence in a promulgation handed down in 1985; (emphasis
supplied)

4. That whether the de oficio counsel appealed the decision is beyond the
accused comprehension (sic) because the last time he saw the counsel was
when the decision was promulgated.

Petitioners declarations as to a relevant fact may be given in evidence against him under Section
23 of Rule 130 of the Rules of Court. This rule is based upon the presumption that no man would
declare anything against himself, unless such declaration were true, [18] particularly with respect to
such grave matter as his conviction for the crime of Robbery with Homicide. Further, under Section
4 of Rule 129, "[a]n admission, verbal or written, made by a party in the course of the proceedings
in the same case, does not require proof. The admission may be contradicted only by a showing
that it was made through palpable mistake or that no such admission was made." Petitioner does
not claim any mistake nor does he deny making such admissions.

Based on the records and the hearing conducted by the trial court, there is sufficient evidence on
record to establish the fact of conviction of petitioner which serves as the legal basis for his
detention. Petitioner made judicial admissions, both verbal and written, that he was charged with
and convicted of the crime of Robbery with Homicide, and sentenced to suffer imprisonment
"habang buhay".

The records also contain a certified true copy of the Monthly Report dated January 1985 [19] of then
Judge Rosalio A. De Leon, attesting to the fact that petitioner was convicted of the crime of
Robbery with Homicide on January 11, 1985. Such Monthly Report constitutes an entry in official
36

records under Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima
facie evidence of facts therein stated.

Note further that, in the present case, there is also no showing that petitioner duly appealed his
conviction of the crime of Robbery with Homicide, hence for all intents and purposes, such
judgment has already become final and executory. When a court has jurisdiction of the offense
charged and of the party who is so charged, its judgment, order, or decree is not subject to
collateral attack by habeas corpus.[24] Put another way, in order that a judgment may be subject to
collateral attack by habeas corpus, it must be void for lack of jurisdiction.[25] Thus, petitioners
invocation of our ruling in Reyes v. Director of Prisons, supra, is misplaced. In the Reyes case, we
granted the writ and ordered the release of the prisoner on the ground that "[i]t does not appear
that the prisoner has been sentenced by any tribunal duly established by a competent authority
during the enemy occupation" and not because there were no copies of the decision and
information. Here, a copy of the mittimus is available. And, indeed, petitioner does not raise any
jurisdictional issue.

Public respondents likewise presented a certified true copy of Peoples Journal dated January 18,
1985, page 2,[20] issued by the National Library, containing a short news article that petitioner was
convicted of the crime of Robbery with Homicide and was sentenced to "life imprisonment."
However, newspaper articles amount to "hearsay evidence, twice removed"[21] and are therefore
not only inadmissible but without any probative value at all whether objected to or not, [22] unless
offered for a purpose other than proving the truth of the matter asserted. In this case, the news
article is admissible only as evidence that such publication does exist with the tenor of the news
therein stated.
As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner
who attacks such restraint. In other words, where the return is not subject to exception, that is,
where it sets forth process which on its face shows good ground for the detention of the prisoner, it
is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent
effect of such process.[23]If the detention of the prisoner is by reason of lawful public authority, the
return is considered prima facie evidence of the validity of the restraint and the petitioner has the
burden of proof to show that the restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of
Court provides:

The proper remedy in this case is for either petitioner or public respondents to initiate the
reconstitution of the judgment of the case under either Act No. 3110, [26] the general law governing
reconstitution of judicial records, or under the inherent power of courts to reconstitute at any time
the records of their finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of
Court.[27] Judicial records are subject to reconstitution without exception, whether they refer to
pending cases or finished cases.[28] There is no sense in limiting reconstitution to pending cases;
finished cases are just as important as pending ones, as evidence of rights and obligations finally
adjudicated.[29]

"SEC. 13. When the return evidence, and when only a plea.If it appears that
the prisoner is in custody under a warrant of commitment in pursuance of law,
the return shall be considered prima facie evidence of the cause of restraint,
but if he is restrained of his liberty by any alleged private authority, the return
shall be considered only as a plea of the facts therein set forth, and the party
claiming the custody must prove such facts."

Petitioner belabors the fact that no initiative was taken by the Government to reconstitute the
missing records of the trial court. We reiterate, however, that "reconstitution is as much the duty of
the prosecution as of the defense."[30] Petitioners invocation of Ordoez v. Director of Prisons, 235
SCRA 152 (1994), is misplaced since the grant of the petition for habeas corpus therein was
premised on the loss of records prior to the filing of Informations against the prisoners, and
therefore "[t]he government has failed to show that their continued detention is supported by a valid
conviction or by the pendency of charges against them or by any legitimate cause whatsoever." In
this case, the records were lost after petitioner, by his own admission, was already convicted by the
trial court of the offense charged. Further, the same incident which gave rise to the filing of the
Information for Robbery with Homicide also gave rise to another case for Illegal Possession of
Firearm,[31] the records of which could be of assistance in the reconstitution of the present case.

Public respondents having sufficiently shown good ground for the detention, petitioners release
from confinement is not warranted under Section 4 of Rule 102 of the Rules of Court which
provides that "Sec. 4. When writ not allowed or discharge authorized. - If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order of
a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be allowed;
or if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment, or
order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment."

WHEREFORE, the petition is DENIED for lack of merit, and the decision of the Court of Appeals is
AFFIRMED.
[Adm. Matter No. MTJ-00-1241. January 20, 2000]
ATTY.
NAPOLEON
S.
BELLOSILLO, respondent

VALENZUELA, complainant vs.

JUDGE

REYNALDO

B.

DECISION
In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), accused was convicted by the trial
court of the crime of rape, and was committed to the New Bilibid Prison. Pending appeal with the
Court of Appeals, the records of the case were, for reasons undisclosed, completely destroyed or
lost. Accused then filed a petition for the issuance of the writ of habeas corpus with the Supreme
Court. The Court denied the petition, ruling thus:

PURISIMA, J.:
The Affidavit-Complaint dated October 17, 1997 of Attorney Napoleon S. Valenzuela charged respondent
Judge Reynaldo Blanco Bellosillo of Branch 34 of the Metropolitan Trial Court of Quezon City with gross
violation of the constitutional right of subject accused to assistance by counsel of her own choice, gross
misconduct, oppression, partiality and violation of the Code of Judicial Ethics; averring:

"The petition does not make out a case. The Director of Prisons is holding the
prisoner under process issued by a competent court in pursuance of a lawful,
subsisting judgment. The prisoner himself admits the legality of his detention.
The mere loss or destruction of the record of the case does not invalidate the
judgment or the commitment, or authorize the prisoners release."

"2. That on September 4, 1997, I was hired as counsel for the accused in Criminal Case
No. 65382-86 entitled People of the Philippines vs. Ms. Meriam V. Colapo for
37

Violation of B.P. 22 which case is being heard before Quezon City Metropolitan Trial
Court Branch 34, presided by Hon. Judge Reynaldo Blanco Bellosillo;

3. That out of delicadeza and in recognition of Complainants right to practice the law
profession, respondent never talked to him about it;

3. That subsequently, I then filed a Manifestation praying for the Honorable Court to
allow the accused to post bail; a copy of the Manifestation is hereto attached as Annex
A and A-1 and made as integral parts hereof;

4. That the Motion to Withdraw filed by Complainant with the Conformity of his
Accused Client Witness, Meriam V. Colapo, is a matter strictly just between the two of
them, to which respondent was never a privy;

4. That Judge Reynaldo Bellosillo as was his custom, talked to my client before
granting bail for her provisional liberty inside his chambers and in my absence;

5. That had Complainant been more prudent, he could have just verified from the
respondent the veracity of his clients statements which for legal intents and purposes
are inadmissible for being hearsay, thus, this unfounded time consuming Complaint
could have been avoided;

5. That the next day, September 5, 1997, my client Meriam Colapo informed me that
Judge Reynaldo B. Bellosillo had angrily ordered her to remove me as counsel and
even suggested one Atty. Puhawan of the PALAO QUEZON CITY as my
replacement; xxx

6. That respondent discharges his functions with all integrity and good faith and
without fear or favor knowing that justice must never be distorted as to do so would
make even the wise blind and subvert tha [sic] cause of the innocent;

6. That as a consequence thereof, the undersigned had no recourse but to file a Notice
of Withdrawal with the conformity of my client Meriam V. Colapo xxx;

xxx"[2]
In the Resolution[3] issued on June 16, 1999, this Third Division referred the Complaint to the Executive
Judge of the Regional Trial Court of Quezon City, for investigation, report and recommendation.

7. That although I was aghast and flabbergasted with the unfathomable actuation of
Judge Bellosillo, I can think of no reason what impelled him with anger to order my
client for my replacement;

On September 22, 1999, Executive Judge Perlita J. Tria Tirona sent in the following Report and
Recommendation, to wit:

7. [sic] That the actuation of Judge Reynaldo Blanco Bellosillo is certainly oppressive,
arrogant, and a gross misconduct affecting his integrity and efficiency which merits a
dismissal from the service;

"Complainant alleged that: on September 4, 1997, he filed a motion praying that his
client Meriam V. Colapo accused in a BP 22 case then pending in Metropolitan Trial
Court, Branch 34, Quezon City, presided over at that time by respondent, be allowed
to post bail for her provisional liberty. Respondent before acting on the Motion
allegedly talked to the accused and ordered her to replace her counsel, herein
complainant, with Atty. Puhawan from PALAO, Quezon City. Accused Colapo
informed him of this incident and told him she was terminating his services pursuant to
the instructions of the respondent.

8. That such despotic act of Judge Bellosillo is likewise indicative of partiality and
gross ignorance of the Constitution and the constitutional right of accused Meriam
Colapo to choose her own counsel to defend her in court;
9. That such arrogant act of Judge Bellosillo would certainly violate and kill my right
to earn and practice law;

In deference to his clients wishes, complainant filed a Notice of Withdrawal of his

appearance with his clients (Colapos) conformity.

xxx."[1]
The Answer, dated February 16, 1998, of respondent Judge denied the allegations of the complaint, branded
the same without any legal and factual basis; theorizing:

According to complainant, he could not think of any reason for respondent to order his
client to replace him.

"1. That when Complainants Accused Client and Witness, Meriam J. [sic] Colapo,
appeared before the undersigned respondent to post Bail she was unassisted by
Complainant-Counsel and upon inquiry informed that she is allegedly changing him
not having liked the idea of being referred by a Metro-TC Branch 34 Personnel to its
PAO Lawyer Joseph B. Sia, who rejected her due to the Prohibitive policy of his office
to represent an Accused in BP 22 Cases and instead referred her to the ComplainantLawyer, Napoleon S. Valenzuela, a former PAO Employee, who allegedly changed
[sic] her unreasonably for the preparation of a mere Manifestation To Post Bail;

On cross examination, complainant stated that he worked with the Public Attorneys
Office for seven (7) to eight (8) years. He resigned in 1995. Complainants wife used
to be an officemate of respondent at the Public Attorneys Office in Makati in 1988.
Complainant admitted that his client Colapo was referred to him by Atty. Sia, his
friend, who is with the Public Attorneys Office (PAO) where he used to work. He is
aware of the PAO/PALAO policy not to represent any person charged with BP 22.
Complainant likewise admitted that he filed his notice of withdrawal on the basis of
what his client Colapo told him. However, he did not confront the respondent about it.
He believed his client because she was agitated. According to his client Colapo,
respondent recommended Atty. Puhawan and he right away filed his withdrawal as
counsel.

2. That respondent could not have referred Complainants Accused Client Witness to
tha [sic] PALAO knowing its Prohibitive Policy to also represent Accused in BP 22
Cases as previously made clear by its Chief, Atty. Jose Puhawan;
38

Respondent likewise denied that he ever referred Ms. Colapo, complainants client to
the PALAO knowing fully well that the PALAO does not represent an accused in a BP
22 case. Besides, according to respondent, it was none of his business whether Colapo
would want to change her counsel. He (respondent) stated that he is not aware whether
Atty. Gusapos, the lawyer who replaced the complainant, is a PALAO lawyer since he
used his private or residential address when he entered his appearance."

At first, complainant stated that the affidavit of his client Colapo was prepared by the
Notary Public Lino Soriano. Then he stated that he assisted her in the preparation of
the same.
Complainant further alleged that it was also on September 5, 1997 (when his clients
bond was approved) that Colapo informed him that respondent wanted him changed as
counsel.

Prescinding from the foregoing, Judge Tirona concluded:

However, in his Notice of Withdrawal as counsel which he filed in Court, he stated
that he was informed by his client Colapo on September 7, 1997, which complainant
again claims to be a typographical error.

"The undersigned finds the evidence adduced by the complainant insufficient to

substantiate his charges against respondent Judge Bellosillo.
The basis of complainants complaint is the affidavit of his client Meriam Colapo to
the effect that respondent Judge suggested to her (Meriam Colapo) that she should
change her counsel (herein complainant), and that respondent recommended Atty.
Puhawan of the PALAO.

Complainant further admitted that his Notice of Withdrawal was with the conformity
of his client Colapo.
No other witness was presented by the complainant.

However, Meriam Colapo was not presented by complainant to testify because she is
presently in Brunei. While complainant claims that Meriam Colapo is willing to
testify, said willingness is not sufficient to lend credence to the present charge since
respondent has every right to cross examine said witness.

Respondent Judge Bellosillo, testified that he does not personally know Miriam [sic]
Colapo. He first met her when she appeared before him in his Court for the approval of
her bail bond. She was allowed to post bail on the basis of the manifestation filed by
her counsel on record, complainant Atty. Napoleon S. Valenzuela. At that time she
was notassisted [sic] by her counsel (complainant was absent) but he (respondent)
allowed her just the same to post bail because according to him he personally knows
Colapos counsel complainant Atty. Valenzuela.

It should likewise be noted that the lawyer who replaced complainant as counsel for
Meriam Colapo was not Atty. Puhawan, the lawyer allegedly suggested by respondent
but one Atty. Gusapos allegedly of the PALAO, although no evidence was presented
by complainant to show that indeed Atty. Gusapos is also with PALAO
notwithstanding the fact that he promised to submit a certification from PALAO that
Atty. Gusapos is indeed an employee of said office.

Respondent further stated that when he inquired from Ms. Colapo where her lawyer
was, Ms. Colapo, in a very disappointing mood said that she was going to change her
counsel because she did not like the idea of paying somebody who could not appear
for her at the time she needed him most. Later on he was informed of the notice of
withdrawal filed by complainant Napoleon Valenzuela with the conformity of his
client Colapo. He did not bother to read the withdrawal anymore because anyway it
contained the conformity of his client Colapo. It was only when he received the 1st
indorsement of the Court Administrator which contained the complaint and the
annexes to the complaint of Atty. Valenzuela that he came to read the notice of
withdrawal. Had he read the notice of withdrawal earlier, he could have called them
for a conference, and confront both of them, considering that the information given to
him (complainant) by Colapo is different from what appeared in the notice of
withdrawal as counsel, filed by herein complainant. Respondent likewise stated that in
all honesty and good faith, he honored the entry of appearance of the new counsel and
dismissed the case against Ms. Colapo on the basis of the Affidavit of Desistance filed
by the complaining witness in the case against Colapo.

If Meriam Colapo has to discharge complainant as allegedly suggested by respondent

so as not to antagonize said respondent judge, why did they not engage the services of
Atty. Puhawan, the lawyer allegedly suggested by respondent to take complainants
place as counsel?
On the other hand, respondent in denying the charge, stated that he could not have
even suggested Atty. Puhawan of PALAO to take complainants place as counsel since
PALAO lawyers are not allowed to represent an accused in a BP 22 case.
Besides, even complainant himself could see no reason why respondent would suggest
to Meriam Colapo to change complainant as counsel and instead to engage the services
of Atty. Puhawan.

On cross examination, respondent admitted that he talked to accused Colapo before he

approved the bail, who was then not assisted by her counsel, to find out if she is the
one who appears in the picture attached to the bail bond, and to inform her of her
undertaking under the bail, and when he inquired from Colapo where her lawyer was,
she answered in a very disappointed manner that she was going to change her counsel
because she did not like the idea of paying somebody who could not represent her at
the time she needed him most and because of the fact that she was referred to one Atty.
Sia of the PAO Office who in turn referred her (Colapo) to complainant who allegedly
charged her (complainant) so much for the preparation of the manifestation.

Thus, the only evidence of the complainant, which is the Affidavit of his client
Meriam Colapo, cannot be the basis of a finding of guilt even in an administrative
case.
In view of the foregoing, the undersigned respectfully recommends that the charges
against respondent Judge Reynaldo B. Bellosillo be dismissed for lack of evidence."
All the facts of the case studiedly considered, with a thorough evaluation of the records on hand, the Court
finds merit in the findings and recommendations of Executive Judge Tirona, absent any discernible basis for
adjudging respondent Judge Bellosillo liable under the premises.
39

short while, then saw the man with a gun fire two more times at the fallen man. She boarded a jeep after
the last two shots were fired. While boarding, she heard someone say binaril na ni Jojo si Palencia.

Apart from his testimony and affidavit-complaint, complainant did not adduce enough evidence to prove his
charges. He did not even present his primary witness, Meriam Colapo, to support the charge that respondent
Judge Bellosillo pressured the latter to replace him as defense counsel. The affidavit [4] of Meriam Colapo
cannot be given credence and is inadmissible without the said affiant placed on the witness stand to give the
respondent Judge an opportunity to test the veracity of affiants allegations.[5] An affidavit is hearsay unless
the affiant is presented for cross-examination.[6]

On February 5, 1996, she went to the branch office of P.L.D.T. in Malabon to pay for the telephone
bill of her employer. While there, she overheard that no one was willing to testify about the shooting. She
informed one of the employees that she was a witness to the incident, and was brought to the manager who
asked her to testify as one of the witnesses in the case. On the same day, she was accompanied by a certain
Jun, an employee of the P.L.D.T., to the police station to give her statement.

Sans the testimony of witness Meriam Colapo, to corroborate complainants allegations and submission, the
case against the respondent judge cannot prosper. The employment or profession of a person is a property
right within the constitutional guaranty of due process of law. [7] Respondent judge cannot therefore be
adjudged guilty of the charges against him without affording him a chance to confront the said witness,
Meriam Colapo; otherwise, his right to due process would be infringed.

At the police station, she identified the only person presented to her for purposes of identification as
the assailant. She was later informed that this person was Jojo Bungo. In court, Torres also identified the
accused Jojo Bungo, whose real name is Jose Silvestre, as the assailant.[5]
The parties dispensed with the presentation of Dr. Alberto Bondoc by making admissions concerning
the manner and nature of his testimony, to wit:

WHEREFORE, for insufficiency of evidence, the Complaint at bar against respondent Judge Reynaldo
Blanco Bellosillo is hereby DISMISSED.

1. that he is duly qualified and competent as a physician and medico-legal officer who had conducted an
autopsy examination;

[G.R. No. 127573. May 12, 1999]

2. that he conducted the actual autopsy on the cadaver of the victim in this case by the name of Luisito
Palencia to be marked as Exhibit B;

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE SILVESTRE y CRUZ, accusedappellant.

3. that in the course of the autopsy examination the witness prepared a sketch of the human body showing the
locations and number of gunshot wounds sustained by the victim marked as Exhibit C;

DECISION
GONZAGA-REYES, J.:

4. that in the course of its examination he extracted a slug embedded on the said victim which cannot be
traced to any gun because there was no ballistic examination; and,

This is an appeal from the decision[1] of the Regional Trial Court (RTC) of Malabon, Branch 72, dated
August 7, 1996, finding the accusedappellant Jose Silvestre y Cruz alias Jojo Bungo guilty beyond
reasonable doubt of the crime of murder in Criminal Case No. 16579-MN.

5. that the final report containing the findings and conclusions particularly with respect to the fact and cause
of death was prepared, thereby dispensing with the actual presentation of Dr. Bondoc as a prosecution
witness.[6]

The accused, Jose Silvestre y Cruz alias Jojo Bungo, was charged with the crime of murder in an
information[2] that reads:

The prosecutions last witness was SPO2 Benjamin Querubin who testified that on February 5, 1996,
Jojo Bungo was arrested outside his residence at Bagong Bantay, Quezon City after a six-hour stakeout. At
the time of arrest, a .38 snub nose paltik revolver was recovered from Silvestre after he was frisked. He
also identified Jojo Bungo in court.

That on or about the 18th day of January, 1996, in the Municipality of Malabon, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and with
treachery and evident premeditation while armed with a gun, did then and there, willfully, unlawfully and
feloniously shoot one LUISITO PALENCIA y TOBIAS hitting him four (4) times on the different parts of
his body, as a consequence said LUISITO PALENCIA y TOBIAS, sustained injuries which directly caused
his death.

On cross-examination, Querubin testified that there was a witness who gave her statement regarding
the crime committed on January 18, 1996 but that she did not cooperate and even failed to subscribe to her
statement.[7]

On April 24, 1996, accused-appellant was arraigned whereupon he entered a plea of not guilty to the
crime charged.[3]

The defense presented SPO2 Angelito Balacaa, the investigating officer, who testified [8] that he was
the officer who took the statement of Felicitas Torres. On cross-examination, he stated that there was no
line-up made when Torres identified the accused because when Torres statement was taken, she readily
mentioned the name of the suspect. When he presented the suspect to Felicitas, the latter identified him as
the one who shot Luisito Palencia.

The prosecution presented three witnesses: the victims widow, Marina Palencia; an eyewitness to the
shooting, Felicitas Torres; and the arresting officer, SPO2 Benjamin Querubin.
Marina Palencia testified that she was the widow of the victim, Luisito Palencia; that they have three
children: Harry, 18; Regine, 16; and Carmille, 11; and that when he was alive, he was employed as an
installer and repairman of P.L.D.T. earning P14,877.00 a month. As a consequence of the death of her
husband, she had incurred actual expenses in the amount of P66,500.00.[4]

The defense next called SPO1 Crizaldo Castillo who did not appear despite his being subpoenaed.
Castillo was supposed to testify on a statement made by a certain Bernadette Matias, a witness to the
shooting, who was not presented at the trial. His testimony was dispensed with when the prosecution
admitted the existence and the contents of her written statement after the Court persuaded both parties to
stipulate on his testimony.[9]

Felicitas Torres testified that on 11:45 a.m. of January 18, 1996, she bought bread from the
Concepcion Bakery in Malabon, Metro Manila. While waiting for a ride in front of the said bakery, she
observed a man and a woman talking with each other. She then heard two shots fired. When she turned her
head, she saw a man on the ground face down and beside him, a man holding a gun. She sought cover for a

The defense rested its case and made its offer of evidence as follows:

40

I will no longer present the accused. I am offering Exh. 1, 1-A and 1-A-1 a statement taken by SPO1
Castillo immediately after the incident took the statement of witness Bernadette Matias on 18 of January,
1996 at 1:00 oclock in the afternoon and in that affidavit statement the witness stated that the suspect that
she does know the name of the suspect and he is 55 between 120 to 130 ang bigat and kulot ang mabuhok,
maiksi ang buhok, brushed up, likewise Exh. 1-A-1 the word kayumanggi on Question No. 7 answer of the
witness is to prove the person whom the eyewitness saw who shot the victim was a kayumanggi likewise
offering this affidavit as part of his testimony of the witness. [10]

VI.
THE COURT A QUO ERRED IN ORDERING PAYMENT OF ACTUAL, MORAL
DAMAGES, LOST OF INCOME ABSENCE OF PROOF IN SUPPORT THEREOF OR FORMALLY
OFFERED IN EVIDENCE.[12]
The accused-appellant argues that the lower court erred in finding the accused guilty beyond
reasonable doubt on the basis of the lone testimony of Felicitas Torres. According to the accused-appellant,
Torres testified that she did not actually witness the accused shooting the victim because she merely heard
two shots fired and sought cover for a short while, and hence it was doubtful whether she saw the man with a
gun shooting at the fallen man two more times. As it was a startling or frightful experience for a woman, it
was not probable that she was brave enough to witness the shooting which was merely five arms length
away from her; and that the prosecution witness merely speculated on the identity of the perpetrator from
what she heard i.e., binaril na ni Jojo si Palencia.[13]

The prosecution objected to the purpose for which the exhibit was offered since the affidavit was not
presented for identification; and the Court admitted it only as proof of its existence and contents.
On August 7, 1996, the Regional Trial Court rendered its decision finding the accused guilty beyond
reasonable doubt of the crime of murder. The dispositive portion of the decision reads:

Moreover, accused-appellant claims that there was an inconsistency between the sworn statement of
Torres and her testimony in Court. In her sworn statement, she had stated that xxx nakita ko ang isang lalaki
na natumba at isa pang lalaki na nakatayo sa harapan noong natumba xxx[14] while in her direct testimony,
she testified that: xxx I saw a man slumped head face down xxx besides that man slumped on the ground a
man with a gun.[15] He also avers that the identification made by Torres was not positive and was
a suggested identification since no police line-up was conducted when she identified him at the police
station.[16]

WHEREFORE, premises considered, judgment is hereby rendered finding accused Jose Silvestre y Cruz @
Jojo Bungo GUILTY beyond reasonable doubt of the crime of murder and he is hereby accordingly
sentenced to the prison term of reclusion perpetua.
Accused Silvestre is also ordered to pay Mrs. Marina Palencia, the following amounts:
(1) P66,500.00 for the actual expenses spent in connection with the death and burial of Luisito;
(2) P50,000.00 for the loss of Luisitos life; (3) P100,000.00 by way of moral damages for the pain and
anguish suffered by the victims family due to the untimely death of Luisito and an additional amount
equivalent to three (3) years salary computed at the rate ofP14,877.00 a month corresponding to Luisitos
monthly salary by way of lost income.

In addition, appellant argues that the lower court erred in treating the statement of Bernadette Matias
as hearsay despite the fact that the prosecution admitted the existence and contents of her statement. He
claims that he vigorously tried to secure subpoenas ad testificandum for the witnesses, Bernadette Matias and
SPO1 Crizaldo Castillo but the trial court opted instead to have the parties stipulate on their testimonies. It is
alleged that the trial courts insistence that the parties stipulate on Matias declaration led him to believe that
it was not necessary to present her to testify under oath as the contents thereof were already admitted.

Costs against accused Silvestre.

Lastly, the accused-appellant contends that the lower court erred in appreciating the qualifying
circumstances of treachery and evident premeditation, and in the absence of these circumstances, the crime is
not murder but simple homicide. He finally argues that the lower court erred in awarding actual and moral
damages despite the absence of proof of the factual basis therefor, and despite the absence of a formal offer
of evidence.

SO ORDERED.
Malabon, Metro Manila, August 7, 1996.[11]

The appellee, on the other hand, posits that the guilt of the accused has been proven
beyond reasonable doubt.

Hence, this appeal where accused assigns the following errors:

First, Felicitas Torres positively identified the accused as the man who shot Luisito Palencia as she
had witnessed the shooting in broad daylight, while she was merely five (5) arms length away from the
accused.

I. THE GUILT OF THE ACCUSED WAS NOT ESTABLISHED BY PROOF BEYOND REASONABLE
DOUBT OR PROSECUTION EVIDENCE HAS NOT OVER-COME ACCUSED CONSTITUTIONAL
PRESUMPTION OF INNOCENCE.

Second, Felicitas testimony is consistent with the findings of the autopsy report which shows that the
victim sustained four (4) gunshot wounds.

II. THE COURT A QUO ERRED WHEN IT CONVICTED THE ACCUSED SOLELY BASED ON THE
LONE TESTIMONY OF PROSECUTIONS PRINCIPAL WITNESS WHO IS NOT CREDIBLE AND
POSITIVE.

Third, the defense did not show any improper motive on the part of Torres to falsely impute the
murder against the appellant. It was not shown that she knew the victims family nor the accused prior to the
incident.

III.
THE COURT A QUO GRAVELY ERRED IN TREATING JUDICIAL ADMISSION OF THE
PARTIES AS HEARSAY IN CHARACTER.

Fourth, as regards the alleged contradictory statements of Felicitas, the prosecution argues that from
the viewpoint of a stunned witness, the appellant could well be standing beside or in front of the
victim. Assuming her statements were in fact inconsistent, such inconsistency pertains to a trivial matter as
there was no inconsistency with respect to the fact of the shooting.

IV.
THE COURT A QUO ERRED IN APPRECIATING EVIDENT PREMEDITATION AND
TREACHERY FOR WANT OF EVIDENCE.

The appellee also argues that there is no law requiring a police line-up as a requisite for proper
identification. Moreover, accused was not entitled to have counsel present at the time he was identified since
he was not subjected to any investigation or interrogation.[17]

THE COURT A QUO ERRED IN SENTENCING ACCUSED OF A PRISON TERM OF RECLUSION

PERPETUA.

41

As regards the affidavit of Bernadette Matias, the same is hearsay as she was not presented as
witness. Finally, the appellee contends that the presence of treachery as shown by the sudden and
unexpected assault upon the defenseless victim qualified the crime to murder.

Q.

What happened after seeking cover?

A.

Then I saw that man with a gun shot the man two times more.

The first issue to be resolved is whether Felicitas Torres, the lone witness to the killing was a credible
witness. We have carefully gone over the records and find nothing in her account of the events that shows
that her testimony suffers from incredibility. Felicitas Torres testified as follows:

Q.

Now who was this man whom you saw fired twice more the man who was slumped face down.

A.

I do not know him personally but I recognized him.

Q.

Now, if you see this man were you be able to identify him?

A.

Yes, sir.

DIRECT EXAMINATION BY FISCAL ACUA:

Q.

Now, at 11:45 in the morning of January 18, 1996, do you remember where you were?

Q.

Now, look around and point him to us if he is inside the Court room?

A.

I was then near Concepcion Bakery.

A.

Witness pointing to the person, step down and approached the person whom she pointed to and
when asked to stand and asked his name, he answered Jose Silvestre.

Q.

Will you please tell us in what municipality is this Concepcion Bakery located?
Q.

A.

Malabon, Metro Manila.

Now, after firing two more shots at the man whom you saw pasubsob, what then did the accused
do if any?

Q.

Now, what were you doing at that time?

A.

I do not know anymore because I boarded a jeep after he fired the last two shots.

A.

Buying bread, sir.

Q.

Q.

Were you able to buy bread?

Now, while you were boarding that vehicle that you take home did you hear anything on that
occasion?

A.

Yes, sir.

A.

There was a commotion and then I heard binaril na ni Jojo si Palencia.

Q.

After buying bread what did you do, if any?

Q.

When did you come to know the complete name of Palencia?

A.

I waited for a tricycle to go home.

A.

When I went to PLDT office.

Q.

And you said you were waiting for a tricycle in going home when you said going home you are
referring to Hulo, Malabon?

Q.

When was that?

A.

February 5, 1996.

Q.

Do you recall what happened when you went to the PLDT before that which place of PLDT did you
go on February 5?

A.

Malabon office, sir.

Q.

Now, do you remember what happened when you went at PLDT branch in Malabon?

A.

I heard that no one wanted to testify for Palencia.

Q.

From whom did you hear this?

A.

From the PLDT personnel.

Q.

So, what then did you do, if any?

A.

I approached one of them.

Q.

For what purpose did you approach this PLDT employee?

A.

I told him about the killing incident that I witnessed.

Q.

What did this PLDT employee do, if any?

A.

He brought me to the office of PLDT at the second floor.

Q.

What happened at the second floor of PLDT office at Malabon?

A.

I said I will testify.

A.

Yes, sir.

Q.

While you were waiting what happened while you were waiting for a ride?

A.

I noticed something, sir.

Q.

What was that you noticed?

A.

I noticed a man and a woman talking with each other.

Q.

How far were you more or less from this man and woman who was conversing with each other?

A.

More or less five arms length.

Q.

Now, what happened after that, if any?

A.

I heard two shots then I turned my head.

Q.

Now, when you turned your head after hearing two shots, what did you see if any?

A.

And then I saw a man slumped head face down.

Q.

What else did you see?

A.

Then I saw besides that man slumped on the ground a man with a gun.

Q.

What then did you do if any after that?

A.

I sought cover for a short while.

42

Q.

What then happened after that?

A.

The complainant was called as she is a resident of Bulacan.

Q.

Now, did the complainant arrive?

A.

In the afternoon, sir.

Q.

Now, after the arrival, by the way, who was that person who arrived?

A.

Mrs. Palencia, sir.

Q.

After Mrs. Palencia arrived what happened, if any?

A.

The PLDT employee told her that I will be the one to testify in their favor.

Q.

After that what happened?

A.

Then after that we proceeded to the Malabon police station.

Q.

What happened at the headquarters of Malabon?

A.

My statement was taken down.[18]

4.2 POE: nape, level of C5, right, 8 x 8 mm., directed anteriorly, inferiorly and slightly
medially, fracturing T1;
POX: none. The slug embedded within the spinal canal.
4.3 POE: abdomen, AAL, just above the anterior iliac spine, right, 10 x 12 mm., directed
posteriorly, inferiorly and medially;
POX: none. The slug was embedded deep within the muscle tissues of the right thigh.
4.4 POE: abdomen, MAL, just above the iliac crest, left, 10 x 12 mm., directed posteriorly,
inferiorly and medially;
POX: none. The slug was embedded deep within the muscle tissues of the left thigh.
5. Hemopericardium, massive.
6. Hemoperitoneum, moderate.
CAUSE OF DEATH:
Cardiorespiratory Arrest due to Hemorrhagic Shock due to Multiple Gunshot
Wounds, Back and Nape.
The autopsy report shows that the victim sustained four (4) gunshot wounds. This tallies with the
testimony of Torres whose account of the events reveals that a total of four shots was fired.

Felicitas Torres categorically stated that she saw the accused Jose Silvestre whom she identified in Court,
shoot at the fallen man two times after hearing two gunshots. While she did not see the accused-appellant
actually fire the first two shots, she turned her head upon hearing the two gunshots and saw a man slumped
on the ground and a man with a gun beside him. After seeking cover for a short while, she saw the man with
the gun shoot the fallen man two more times moments after the first two shots were fired. This leads to no
other logical conclusion than that the accused-appellant was the one who fired them.[19]

This Court has ruled on countless occasions that the trial court is in the best position to determine facts
and to assess the credibility of witnesses as it is in a unique position to observe the witnesses deportment
while testifying which opportunity the appellate court is denied on appeal; this Court will respect the findings
and conclusions of the trial court provided that they are supported by substantial evidence on record. [21] We
find no cogent reason to disturb the trial courts appreciation of the evidence and find no basis in the
record to rule that Felicitas Torres testimony was not credible.

Her testimony is corroborated by the autopsy report [20] prepared by Dr. Alberto Bondoc, the findings
of which are:

With regard to appellants argument that there was an inconsistency between Torres sworn statement
and her testimony in court, we agree with appellee that the alleged inconsistency pertains to a trivial
matter. While she stated in her sworn statement that the accused was in front of (sa harapan) the victim she
thereafter testified that the gunman was beside the victim. This statement refers only to how the accused
stood in relation to the victim and is not sufficient to weaken her positive assertion that she saw the accused
shoot the victim two times after hearing two shots previously fired. This Court has repeatedly ruled that
inconsistencies between the sworn statements and direct testimony given in open court do not necessarily
discredit the witness since affidavits are oftentimes incomplete and are generally inferior to the testimony of
the witness in open court.[22]

FINDINGS:
1 Abrasions/Contusions: forehead, left.
2 Lacerated Wound: eyebrow, left, 22 mm.

In addition, the appellant has failed to show any improper motive on the part of Torres to falsely
impute such a terrible crime to him. Torres did not know either the appellant or the victim prior to the
shooting on January 18, 1996.[23] The testimony of a single witness, when credible and trustworthy, is
sufficient to convict[24] and must be given full faith and credence when no reason to falsely testify is
shown.[25]

3 Stabbed Wounds:
3.1

angle of mandible, left, 9 mm., directed superiorly, posteriorly and medially.

As regards the lack of a police line-up when Torres identified Jose Silvestre as the assailant, we agree
with appellee that there is no law which requires a police line-up as essential to a proper identification
provided that the identification was not suggested to the witness by the police. [26] In the present case, there is
no showing that the identification made by Torres in the police station was suggested to her. In her sworn
statement,[27] Torres stated that:

3.2 back, level of L2, PVL, left, 11 mm., directed anteriorly, superiorly and slightly laterally, nonpenetrating.
4 Gunshot Wounds:
4.1 POE: back, level of L2, PVL, right, 8 x 10 mm., directed anteriorly, superiorly and
medially, puncturing the right lobe of the liver from inferior to superior, puncturing the
diaphragm, and lacerating the heart from the posterior wall of the right ventricle to the anterior
wall of the left atrium, and puncturing the anterior chest wall;
POX: none. A metallic slug, 9 x 18 mm. was recovered from the subcutaneous tissues of the
anterior chest wall, along the 2nd ICS, MCL, left.

Question # 22.
T: Inihaharap ko ngayon sa iyo ang taong ito, ano ang masasabi mo sa kanya? (This investigator
confronting affiant with the suspect who is presently under detention at the Malabon Municipal
Jail.)
43

S: Siya nga ho ang nakita kong bumaril kay Tito Palencia. (Affiant pointing to the suspect Jojo Bungo
whose real identity is JOSE SILVESTRE Y CRUZ, 40 yrs. old, married, jobless, and res at 240 C.
Arellano St., Baritan, Malabon, Metro-Manila.)

There is nothing in the testimony of Torres nor in her sworn statement that would show that the police
suggested that the suspect to be presented to her was Jojo Bungo. The police merely asked what she could
say about the person presented to her, and she spontaneously answered that he was the one who shot Luisito
Palencia. She was only informed that the person presented was Jojo Bungo after she had already pointed him
out. She could not have been mistaken in her identification of the gunman as she was only five arms length
away from them when the shooting occurred. During her cross-examination, she explained how she was able
to see the face of the gunman as follows:

While on cross-examination, Torres testified that:

Q. Now when you were already at the police station of Malabon with the employee of PLDT in the
name of Jun whom did you talk to?
A.

Jun asked them who is the investigator because I was going to give a statement.

Q.

Then where were you when Jun asked about the investigator?

A.

I was at the lobby, sir.

Q.

You were left by Jun at the lobby of the police station?

A.

Yes, sir.

Q.

And Jun went somewhere else inside the police station.

A.

Yes, sir.

Q.

So, at the time Jojo the alleged assailant was not still around?

A.

Yes, sir.

Q.

When Jun the police investigator came out they were already or Jun was already with them?

A.

I gave the statement first.

Q.

Now, while you are giving your statement to the police investigator who was with you?

A.

No one because I was told to enter the room alone.

Q. xxx when you arrived there at the headquarters you were already confronted with the suspect Jojo?

Now Jojo Bungo was eventually presented to you, is that not correct?

A.

Yes, sir.

Q.

Did you point him the assailant face to face?

A.

Yes, sir.

Q.

And what was his reaction as being pointed to you as the assailant?

Nothing.

Q.

Did he not deny the accusation against him?

A.

He did not, sir.

Now, when he was presented for your identification he was alone?

A.

Yes, sir.

Q.

And you were told that this was Jojo Bungo?

Q.

And that was only the first time that you saw his face?

Misleading.
COURT:
Witness may answer.
WITNESS:
A.

No, because I saw him when he shot the victim.

ATTY. SIRUELO:
Q.

You testified that during those dates that you saw the assailant at the actual place of incident thru
his back only, is that not correct?

FISCAL ACUA:
That is misleading.
COURT:
Let us put this way.
Q.

On direct examination you said you saw a person who turned out to be Jojo Bungo shooting at the
victim who was already lying on the ground face down. On direct examination you said that
when you again saw the assailant Jojo for the first time his back was turned to you. Now, the
question is: how then did you see his face or recognize him as you claim?

A.

Because he was turning his head from side to side.[29]

Appellant also argues that the court a quo erred in treating the judicial admission of the statement
of Bernadette Matias made by the prosecution as hearsay. The records show that the prosecution
only admitted the existence and contents of the supposed statement made by Bernadette Matias as shown by
the following excerpt from the transcript:
Atty. Siruelo:

ATTY. SIRUELO:
Q.

Yes, sir.

FISCAL ACUA:

COURT:
Q.

A.

My next witness is SPO1 Crizaldo Castillo he was subpoenaed, Your Honor.

Court:
Can we not have stipulation or admissions concerning the testimony of Castillo as corroborative only of
that of Balacaa?

Yes, sir.[28]

Atty.:
No, Your Honor, very material on our defense on the conflicting testimony of the witness.
44

Court:

We find the evidence of the prosecution insufficient to prove treachery as a qualifying

circumstance. The fact that Torres saw the accused-appellant shoot the victim while he was already on the
ground does not mean that that was the only assault made by the accused-appellant on the victim.[39] When
Torres saw the accused-appellant shoot the victim, she had already heard two shots fired. The autopsy report
shows that the victim also sustained two unexplained stab wounds. Given these facts, Torres cannot be
considered as having testified as to how the incident began since she saw the incident already in
progress.[40] Treachery cannot be considered when the witness did not see the commencement of the
assault.[41]

Do you have a copy thereof?

Atty.:
I am referring to the witness, Bernadette Matias. I have a statement of the other witness.
Court:

Moreover, treachery cannot be appreciated when no particulars are known with respect to the manner
by which the aggression was made or how the act began or developed [42] or when the evidence lacks any
details showing the manner of attack, its suddenness or unexpectedness, the relative positions of the victim
and his assailant, and the victims defenselessness.[43]

Then show it to the Fiscal and probably the Fiscal can admit it.
Fiscal:
The reason why we did not present the witness because she was afraid in fact that was sworn to.

Lastly, although the fatal wounds were found at the back of the victim, this does not, of itself, compel
a finding of treachery.[44] We disagree with the Regional Trial Courts ratiocination that a person who, after
falling to the ground head first, was shot two more times indicates the treacherous plan to kill him as it does
not prove the suddenness of the attack which prevented the victim from defending himself or retaliating. The
conclusion is speculative and based on a presumption not on the evidence. It is a basic precept that treachery
must be proven as indubitably as the killing itself and it cannot be deduced from mere presumption or sheer
speculation.[45]

Court:
The existence and contents you can admit it Fiscal?
Fiscal:
Yes, Your Honor.

The court a quo also appreciated evident premeditation as a qualifying circumstance. For evident
premeditation to be appreciated, the following must be proved:

Court:
So we can dispense with the testimony of Castillo.

[30]

1.) the time when the accused determined to commit the crime;

The appellees admission only referred to the fact that the statement was made by Matias. In People
vs. Gaddi,[31] it was ruled that when testimony is presented to establish not the truth but the tenor of the
statement or the fact that the statement was made, it is not hearsay. [32] The lower court was therefore correct
in admitting only the existence and contents and not the truth or veracity of the unsworn statement of Matias
as an independently relevant statement[33] This statement cannot be used to establish the veracity of it; it
would be hearsay as Matias was not presented in Court.

2.) an act manifestly indicating that the accused has clung to his determination; and
3.) sufficient time between such determination and execution to allow him to reflect upon the
consequences of his act.[46]
Neither are we convinced that evident premeditation was proven. The records are bereft of evidence
of any of the above requisites of evident premeditation. There is absolutely no proof of the time the accused
decided to commit the crime. There is no showing how the accused, Jose Silvestre, planned the killing of the
victim, Luisito Palencia. Neither is there any showing of how much time elapsed before he executed his
plan. Absent all these, evident premeditation cannot be appreciated.[47]

Appellant cannot fault the prosecution for the failure to present Bernadette Matias. The prosecution
has discretion to decide on who to call as witness during trial and its failure to do so did not give rise to the
presumption that evidence willfully suppressed would be adverse if produced[34] since the evidence was at
the disposal of both parties.[35] If the defense believed that the testimony of Bernadette Matias was important
to its case, it should have insisted on presenting her as a witness, or as the appellee points out, made a tender
of excluded evidence of the witness in question under Section 40, Rule 132 of the Rules of Court. The same
may be said of Joanna Santiago, another supposed witness to the shooting, who was also not presented during
trial.

Since both treachery and evident premeditation cannot be appreciated to qualify the crime into murder,
the accused-appellant can only be convicted of the crime of homicide.[48] Article 249 of the Revised Penal
Code provides that the penalty for homicide is reclusion temporal. Since there are no mitigating nor
aggravating circumstances in the present case, the penalty that should be imposed on the accused-appellant
is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, the accused-appellant
is sentenced to prision mayor, as the minimum, and reclusion temporal in its medium period, as the
maximum.[49]

The next issue to settle is whether treachery and evident premeditation can be appreciated to qualify
the crime into murder. In finding the presence of treachery and evident premeditation, the court a quo ruled
that:

The last issue to be resolved is whether the heirs of Luisito Palencia are entitled to actual and moral
damages and loss of income which would have been earned had it not been for the victims untimely death.

A person being shot at while standing in a public place and talking to a woman must have been shot with
evident premeditation and treachery because he was unaware of the impending attack which prevented him
from putting up a defense that will repel the attack that will also place the attacker under some sort of
risk by reason of said defense. After having fallen to the ground head first, said persons being shot two
times more would have been indicative of the treacherous plan to kill him. [36]

We cannot sustain the award of P66,500.00 as actual damages in favor of the heirs of Luisito
Palencia. The records show that the prosecution failed to substantiate the bare assertion of the widow,
Marina Palencia, with other corroborative evidence. The Court can only grant such amount for expenses if
they are supported by receipts.[50] In the absence thereof, no award for actual damages can be granted.
We affirm the award of P50,000.00 as indemnity for the loss of Luisitos life as this is in accord with
prevailing jurisprudence.[51] However, the award of moral damages must be reduced from P100,000.00
to P50,000.00[52] as the purpose of this award is not to enrich the heirs of the victim but to compensate them
for the injuries to their feelings.[53]

There is treachery when the offender commits any of the crimes against persons, employing means,
methods, or forms in the execution thereof which tend directly and specifically to insure its execution without
risk to himself arising from the defense which the offended party might make.[37] For treachery to be
appreciated as a qualifying circumstance, two elements must concur: (1) the employment of means of
execution which gives the person attacked no opportunity to defend himself or retaliate; and (2) the means of
execution is deliberately or consciously adopted.[38]
45

We must also modify the award for loss of earning capacity. The absence of documentary evidence to
substantiate the widows claim for the loss will not preclude recovery for said amount. [54] Marina Palencia
testified that her deceased husband earned P14,877.00 per month as a P.L.D.T. repairman and installer.[55] It
was also established that at the time of his death, the victim was forty-four (44) years old.[56] Loss of earning
capacity is computed based on the following formula:[57]
Net Earning
Capacity (x)

life expectancy
[2/3(80-age at
death)]

Gross
Annual
Income
(GAI)

2(80-44)
3

178,524.00

x
=
24
Net Earning Capacity = P 2,142,288.00

89,262.00

That on or about the 11th day of April, 1994 at barangay Lomboy, municipality of San Manuel, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, with intent to kill, with treachery and evident
premeditation, abuse of superior strength and armed with knives and stone, did then and there willfully,
unlawfully and feloniously attack, assault and stab one ANDRES ILDEFONSO, inflicting upon him fatal
wounds in the different parts of his body which directly caused his instantaneous death, to the damage and
prejudice of his heirs.

living expenses
(50% of GAI)

CONTRARY to Art. 248 of the Revised Penal Code.

-

89,262.00

The case for carnapping was originally tried before Branch 38 of the Regional Trial Court at
Lingayen, Pangasinan. The case was later transferred to Branch 47 of the same court at Urdaneta.[3]
On the other hand, the case for murder was assigned to Branch 46 of the court, also at Urdaneta. On
motion of accused-appellants, the case was consolidated with the carnapping case pending before Branch 47
of the Regional Trial Court of Urdaneta.[4]

WHEREFORE, the appealed decision of the Regional Trial Court is hereby MODIFIED, and the
accused-appellant is found GUILTY OF HOMICIDE and sentenced to an indeterminate penalty of ten (10)
years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, as maximum.[58] Accused-appellant is further ordered to pay the heirs of the victim the
following: (1). death indemnityP50,000.00, (2). moral damages P50,000.00, (3). loss of earning
capacity P2,142,288.00.

Accused-appellants, who had pleaded not guilty to the charge of carnapping when the case was still
pending in Branch 38 at Lingayen, likewise pleaded not guilty to the charge of murder. Thereafter, the two
cases were jointly tried.[5]
At the initial presentation of evidence by the prosecution relative to the carnapping case before Branch
38 at Lingayen, Pangasinan, three witnesses testified for the prosecution. Their testimonies are summarized
in the following portion of the decision of the trial court:
1) ROCKY ECLERA, 16 years old, a resident of San Vicente West, Asingan, Pangasinan,
testified that on 11 April 1994 at about 7:00 A.M., while he and the accused ALEX HORA,
ALEX PANIDA and ERNESTO ECLERA were at the Poblacion of Asingan, Pangasinan,
ALEX HORA invited the group to go to San Manuel, Pangasinan. They took a motorized
tricycle for their ride from Asingan to San Manuel. It was driven by ANDRES
ILDEFONSO.

[G.R. Nos. 127125 & 138952. July 6, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEX PANIDA, ERNESTO ECLERA, and
ALEX HORA, accused-appellants.

Somewhere in Barangay Lomboy, San Manuel, a more or less deserted place, accused ALEX
HORA ordered the tricycle driver to stop the vehicle. Suddenly and unexpectedly ALEX
HORA repeatedly stabbed the tricycle driver with the use of a knife. Afterwards when the
driver appears to be still alive, hit the head of the driver with stone. Thereafter, Alex Hora
called the witness and the others, and they boarded the same tricycle with Alex Hora as the
driver.

DECISION
MENDOZA, J.:

They proceeded to the irrigation dike at Macalong, Urdaneta, Pangasinan. At such place,
ALEX HORA, with the help of ALEX PANIDA and ERNESTO ECLERA detached the
sidecar. After the sidecar was detached, they (all four of them) boarded the motorcycle and
went to Balite, Tarlac.

Accused-appellants were charged with the slaying of a tricycle driver and the taking of his vehicle on
April 11, 1994 in two informations filed with the Regional Trial Court of Pangasinan.
The information for the crime of carnapping charges:[1]

They stayed at Tarlac for three days and three nights. On the third day, upon his urging, he was
accompanied by accused ALEX PANIDA to Urdaneta, Pangasinan. At Urdaneta, he
parted ways with Alex Panida.

That on or about the 11th day of April, 1994 at Poblacion, municipality of Asingan, province of Pangasinan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and helping one another with intent to gain, did then and there wilfully and unlawfully and
feloniously take, steal and carry away one (1) motorcycle (Suzuki), bearing Plate No. 2N-13220-92, Motor
No. GP 100278040 and Chassis No. Spg-100 UN-110614, worth P57,000.00 belonging to Sylvia Eclera
without her knowledge and consent, thereafter, said accused brought said motorcycle to Agoo, La Union and
mortgaged it to Romulo de Vera in the amount ofP4,000.00, to the damage and prejudice of the said owner in
the aforestated amount of P57,000.00.

Accused ALEX HORA and ERNESTO ECLERA were left behind at Tarlac.
In connection with the cases, he remembered having executed a sworn statement given at the
police station at Asingan, Pangasinan. He identified a xerox copy of the same and admitted
having signed the statement (EXHIBITS D, and D-1, the same exhibit was marked in
evidence by the accused as EXHIBIT 1).
He identified pictures of a motorcycle and a sidecar. The pictures admittedly show the
motorcycle stolen and the sidecar that was detached.

CONTRARY to Republic Act No. 6539 in relation to Art. 19 of the Revised Penal Code.
That charging the crime of murder reads:[2]
46

2) ROMULO DE VERA, 38 years old, market vendor, married and a resident of San Nicolas,
Agoo, La Union, testified that on May 2, 1994, he saw accused ALEX HORA with
VIOLETA BAUTISTA talking with his uncle, Alfredo Gali. The latter informed him that
Alex Hora and Violeta Bautista were mortgaging to him a motorcycle, but he does not have
money. So Alex Hora and Violeta Bautista pleaded that he instead take the mortgage. The
two were badly in need of money. He agreed.

Alex Hora, one of the accused in these cases. This Romulo de Vera showed her a written mortgage contract
or Salda in Ilocano, which was the same as Exh. A. For the recovery of the motorcycle, she was asked to
sign a receipt by Romulo de Vera.
In connection with the funeral and church services of her deceased driver, she spent about P20,650.00. She
also spent about P5,000.00 in connection with the recovery of the motorcycle. She was deprived of the use
of her tricycle for more than one year. She received a daily income from the operation of the vehicles in the
amount of P100.00. The motorcycle was bought for P43,000.00 and the cost of the sidecar was P14,000.00.

The motorcycle allegedly was first mortgaged to one Mariano Kuan, a resident of San Nicolas
Central, Agoo, La Union for P2,000.00. So what they did was to first pay Mariano Kuan
the mortgage obligation of P2,000.00. He gave ALEX HORA another P2,000.00, as he
was willing to give P4,000.00 only for the mortgage.

DR. LEONARDO GUERRERO, the Rural Health Officer of the Municipality of Asingan was presented as
witness to testify on the Medico-Legal Autopsy Report relative to the autopsy he conducted on the deceased
ANDRES ILDEFONSO. The defense in respect to the offer of his testimony, admitted the
same. Accordingly, his testimony was dispensed with. (Citations omitted)

He and ALEX HORA executed a mortgage document notarized by Arturo dela Rosa. Alex
Hora signed for the registered owner Gilbert Eclera because the latter was allegedly
arrested at Dagupan City, precisely it was for this predicament that they needed the money.
On May 22, 1994, police officers from Asingan, Pangasinan accompanied by a police officer
from Agoo, went to his place looking for a motorcycle which was allegedly lost. He
admitted that the motorcycle that they were looking for was in his possession. It was
brought to the police station of Agoo. Thereat, he signed a document known as RECEIPT
OF CONFISCATION.

Thereafter, the prosecution offered its documentary exhibits to which the defense did not interpose any
objection.[10] Accordingly, all exhibits of the prosecution were admitted for the purpose for which they were
offered and as part of the testimonies of the witnesses who identified them.[11] Among the documentary
evidence was Exhibit D which is a sworn statement given by Rocky Eclera to the police of Asingan on May
20, 1994, in which he pointed to all of the accused-appellants as the ones who killed the tricycle driver,
Andres Ildefonso, and took his vehicle.

3) ALFREDO GALI, 64 years old, married, retired government employee, and a resident of San
Nicolas Norte, Agoo, La Union, testified that on 02 May 1994, ALEX HORA and Violeta
Bautista went to his residence and offered to mortgage a motorcycle. Since he did not have
money at that time, when he saw his nephew Romulo de Vera passed by, he called him and
informed him of the purpose of Alex Hora and Violeta Bautista. He asked if Romulo had
money. The latter answered in the affirmative. So they went to a notary public. At the
office of the Notary Public, ALEX HORA and ROMULO DE VERA signed a mortgage
document. He was there to witness the mortgage. He saw the parties signed the
document. (Citations omitted)

Accused-appellants Alex Panida and Ernesto Eclera testified in their defense. They likewise presented
Rocky Eclera who had previously testified for the prosecution. Their testimonies are summarized in the trial
courts decision as follows:[12]
ROCKY ECLERA substantially testified that on 11 April 1994 while he and the accused, namely, ALEX
PANIDA, ALEX HORA and ERNESTO ECLERA were at the Poblacion of Asingan to attend the town
fiesta, accused ALEX HORA invited them to go to San Manuel, Pangasinan to attend the birthday of one of
his friends. When he asked where in San Miguel, Alex Hora just responded, just come with me and Ill take
care of our ride.

The prosecution wanted to present Rocky Eclera[6] as witness also in the murder case, but he could not
be served with subpoena. Despite an order issued by the trial court for his arrest, the prosecution was not
able to present him as witness.[7] For this reason, the prosecution simply adopted the testimony of Rocky
Eclera in Criminal Case No. U-8202 (carnapping) as its evidence in the murder case. The defense did not
object.[8] The prosecution then presented two additional witnesses, whose testimonies are set forth in the trial
courts decision, thus:[9]

They took a tricycle at the parking area in Poblacion, Asingan for their ride to San Manuel. He, Alex Panida
and Ernesto Eclera rode inside the cab, while Alex Hora sat at the rear of the tricycle driver.
On their way to San Manuel, they again asked Alex Hora where they were going, but the latter just said they
will go to the house of his friend who is celebrating his birthday.

The other witness presented by the prosecution with respect to the carnapping case was SYLVIA ECLERA,
38 years old, married and a resident of Poblacion, Asingan, Pangasinan. She testified that she is the owner of
a Suzuki motorcycle with Plate No. 2N-13220-92. The vehicle was registered in the name of her husband
Gilbert Eclera.

After passing the town proper of San Manuel, and when they were near the slope of the mountain, and while
the tricycle was still running, Alex Hora suddenly stabbed the driver with the use of a knife. When the
tricycle stopped, the witness ran away. The other accused, Alex Panida and Ernesto Eclera tried to pacify
Alex Hora, but the latter faced them menacingly with his knife.

At about 10:00 P.M., on 11 April 1994, she received a report from Investigator Sonaco of the PNP Asingan
that her tricycle driver was missing. PNP Asingan was informed by PNP Urdaneta that a sidecar was located
at Macalong, Urdaneta. PNP Asingan sought the help of PNP Urdaneta. With the help of the PNP Urdaneta,
they were brought to Macalong, Urdaneta, where the sidecar of the tricycle was located. The motorcycle was
missing.

The tricycle driver uttered pleading words like no more sir (Saanen Apo in the Ilocano dialect). Thereafter,
Alex Hora pulled the prostrate body of the driver at the slope of the mountain. Then he hit the head of the
driver with a big stone. The stone was as big as a mans head.

On the following day, they located the dead body of the driver of the tricycle at Lomboy, San Manuel,
Pangasinan. The cadaver of the driver was taken by Funeraria Mercado to Asingan Municipal
Cemetery. The name of the driver was ANDRES ILDEFONSO.

All the time that the driver was being stabbed and then hit with a stone, the other accused, Alex Panida and
Ernesto Eclera were inside the tricycle. They did not inflict any blow to the driver. On the other hand, the
witness ran to the mountain and hid himself.

On 18 May 1994 she was informed by PNP Asingan that her motorcycle was in Agoo, La Union. Together
with some elements of PNP Asingan, they proceeded to Agoo, La Union. The motorcycle was in the
possession of one Romulo de Vera. The latter claimed that the motorcycle was mortgaged to him by one

After the killing of the driver, Alex Hora called his companions to board the tricycle as they will proceed to
his best friend in Tarlac. Witness did not know the place.
47

They went to the irrigation dike site at Urdaneta, where Alex Hora detached the side car of the tricycle. Alex
Hora alone detached the side car as nobody helped him. Thereafter, all four of them proceeded to Tarlac at
the residence of Alex Horas friend.

Manuel because Alex Hora stabbed the tricycle driver many times with the use of a knife about seven inches
in length. While Alex Hora was stabbing the driver, witness asked Alex Hora why was he stabbing the
driver, but Hora told him to leave him alone. Ernesto Eclera also told Alex Hora: Dont do that to him.
Rocky Eclera on the other hand ran near the slope of the mountain. When Alex Hora repeatedly stabbed the
driver, the tricycle was still running.

They stayed there for three days. Then he asked Alex Panida to accompany him home, Alex Panida
accompanied him up to Urdaneta. They took a mini bus as ride to Urdaneta. At Urdaneta, he proceeded
home to Asingan, while Alex Panida told him that he will watch a movie in Urdaneta. Alex Hora and
Ernesto Eclera were left at Tarlac.

After the stabbing incident, Alex Hora ordered them to ride on the tricycle and they proceeded to the
irrigation dike at Urdaneta. At that place, Alex Hora detached the side car of the tricycle. He alone did the
detaching. After the side car was detached, they proceeded to sitio Balite at Tarlac, Tarlac. They rode on the
motorcycle that was detached. Alex Hora was the driver. They stayed there for three days and three nights.

He was subsequently arrested at Sison, Pangasinan by police officers of Asingan Police Department, he was
investigated. His statement was taken, which he signed. His statement was written in English, which he did
not understand. The contents of his statement were not translated in Ilocano dialect by the police
investigator. He was never informed of his constitutional rights. His parents or relatives were not informed
when he was investigated and when his statement was taken. The statement was marked as EXHIBIT 1.

On the third day, he asked permission from Alex Hora that Rocky Eclera already wanted to go home. Alex
Hora warned them not to squeal on what happened, otherwise, he will kill them all. He accompanied Rocky
Eclera back to Urdaneta, where he parted ways with Rocky Eclera. He proceeded to a friends house to
borrow some money as fare in going to Baguio. Alex Hora and Ernesto Eclera were left at Tarlac. He did
not return anymore to Tarlac. He eventually saw them at the Provincial Jail in Lingayen,
Pangasinan. (Citations omitted)

He was confined for about eight (8) weeks at the municipal jail of Asingan.
He admitted having testified before the Court in Lingayen, Pangasinan in connection with the carnapping
case.

For his part, accused-appellant Hora presented SPO2 Romeo Mababa and Vice Mayor Guillermo Piso
as his witnesses. He also testified in his behalf. Their testimonies are as follows:[13]

Accused ERNESTO ECLERA, 21 years old, single, student and resident of San Vicente West, Asingan,
Pangasinan testified that on 11 April 1994, he, Rocky Eclera and his co-accused Alex Hora and Alex Panida
were at the Poblacion of Asingan. They were there to attend the town fiesta. While there, Alex Hora invited
the group to proceed to San Manuel to attend a drinking spree at his friends place. While they were in San
Manuel, they asked Alex Hora where they were going and he just said: Just keep quiet and I will tell you
later.

Accused ALEX HORA, 26 years old, construction worker, married and resident of San Vicente West,
Asingan, Pangasinan testifying for his defense stated that in the evening of 10 April 1994, he, together with
Alex Panida, Ernesto Eclera and Rocky Eclera were at the town proper of Asingan strolling. They stayed
there the whole night.
On the following day, 11 April 1994 at about 7:00 A.M., Alex Panida invited him to go with them, referring
to the other companions of Alex Panida, to Lomboy, San Manuel. They will go to Alex Panidas aunt
thereat. Alex Panida will hire the tricycle of his aunt, Sylvia Eclera. Alex Panida was able to hire the
tricycle of her aunt Sylvia Eclera which they used for ride in going to Lomboy, San Manuel. They reached
the residence of his auntie at Lomboy, San Manuel. Alex Panida and Ernesto Eclera alighted and went to the
house of Alex Panidas aunt. When Alex Panida returned, he approached the tricycle driver and poked a
knife against the latter. Suddenly he stabbed the driver.

They were not able to reach the place of Alex Horas friend because Alex Hora stabbed the tricycle
driver. They got off the tricycle to pacify Alex Hora but he faced them menacingly. They tried to grab his
hand, but Alex Hora shouted dont intervene if you dont want to be involved like this man I am
killing. They even told Alex Hora: Dont stab him, Have mercy on him, but Alex Hora told them not to
interfere.
Alex Hora used a FAN KNIFE, or a knife locally known as balisong, and one ice-pick in stabbing the driver
many times.

After Alex Panida stabbed the driver, witness and the other two companions, Rocky Eclera and Ernesto
Eclera ran towards the slope of the mountain. Alex Panida yelled and shouted at them to help him. He
threatened them to help him. If they will not help him (PANIDA), he will kill them. When they returned to
the tricycle, they saw the driver face down and already dead.

After the killing of the driver, they were invited by Alex Hora to go to Urdaneta. They rode on the same
tricycle. They reached Consolacion, Urdaneta, where Alex Hora detached the side car of the tricycle. After
detaching the side car, again Alex Hora told them to board the motorcycle and they proceeded to Tarlac. The
four of them went to Tarlac on board the detached motorcycle with Alex Hora as the driver.

When he saw that the driver was already dead, he was shocked and cannot move. He fainted and lost
consciousness. His companions boarded him on the tricycle. He was awakened by Alex Panida when they
reached the town proper of Binalonan, Pangasinan.

They stayed with an uncle of Alex Hora in San Miguel, Tarlac. They stayed there for three days and three
nights. On the third day, Rocky Eclera and Alex Panida returned to Urdaneta. While he proceeded to
Manila. Alex Hora was left at San Miguel, Tarlac with the motorcycle. Before parting for Manila, he was
warned by Alex Hora not to divulge that he killed the tricycle driver.

They proceeded to the irrigation dike at Urdaneta where they detached the side car of the tricycle. It was
Alex Panida who detached the side car. He and the others only helped the former. After the side car was
detached, they rode on the motorcycle and they proceeded to Balite, Tarlac at the residence of Alex Panidas
uncle. Alex Panida drove the motorcycle.

Accused ALEX PANIDA, 23 years old, single, farmer and resident of San Vicente West, Asingan,
Pangasinan testified that on 11 April 1994 at about 7:00 A.M., he was with Rocky Eclera and his co-accused
Alex Hora and Ernesto Eclera at the town proper of Asingan to attend the town fiesta. While they were there,
accused Alex Hora invited them to go to San Manuel at the place of his friend. They took a tricycle and
proceeded to San Manuel. He, Ernesto Eclera and Rocky Eclera were seated inside the cab, while Alex Hora
rode at the rear of the tricycle driver. They were not able to reach the place of Alex Horas friend in San

They stayed there for three days and three nights. While they were sleeping, Alex Panida told his uncle that
he and Rocky Eclera will just go out. When he inquired from Panidas uncle the latter told them that Panida
used the motorcycle in going back to PMA-Baguio.

48

WHEREFORE, premises considered, judgment is hereby rendered as follows:

Afterwards, he and Ernesto Eclera also parted ways. He returned home to Asingan, while Ernesto Eclera
went to Magalang, Pampanga to borrow money from his uncle there for his fare to Manila.

IN CRIMINAL CASE NO. U-8202

Four days after he returned from Tarlac, Alex Panida dropped by his residence and invited him to go to
Agoo, La Union so that they will mortgage the motorcycle as Alex Panida was badly in need of money.

a) Finding the accused ALEX PANIDA, ERNESTO ECLERA and ALEX HORA GUILTY beyond
reasonable doubt of the crime of CARNAPPING under R.A. 6539, the Court sentences them to suffer
imprisonment of SEVENTEEN (17) YEARS;

He was able to mortgage the motorcycle with one Romulo de Vera for P4,000.00. However, the P2,000.00
was first given to Mariano Huan who was the first mortgagee of the motorcycle and the balance of P2,000.00
was given to him.

b) Ordering the accused to pay jointly and severally spouses GILBERT and SYLVIA ECLERA the sum
of P20,650.00 representing burial and funeral expenses incurred by them in connection with the death of their
driver of the motorized tricycle; the sum of P5,000.00 representing expenses incurred in the recovery of the
motorcycle and side car; and to pay the costs.

....
SPO2 ROMEO MABABA, a member of the Philippine National Police of Asingan, Pangasinan testified that
he was the same SPO2 Romeo Mababa who took the statement of ROCKY ECLERA on May 20,
1994. When he took the statement of Rocky Eclera he informed him of his constitutional rights and
explained to him his rights. When his statement was taken his father and the vice mayor of the municipality
of Asingan were present.

IN CRIMINAL CASE NO. U-8203

a) Finding the accused ALEX PANIDA, ERNESTO ECLERA and ALEX HORA GUILTY beyond
reasonable doubt of the crime of MURDER with the generic aggravating circumstance of cruelty, the Court
sentences them to suffer the penalty of DEATH;

After he took the statement of Rocky Eclera, he translated same in the Ilocano dialect which he fully
understood. Thereafter, he signed his statement. Then he brought him to Judge Suller of the Municipal
Circuit Court of Asingan, before whom Eclera took his oath in respect to his statement.

b) Ordering the accused to pay jointly and severally the heirs of ANDRES ILDEFONSO P50,000.00 as
indemnity and the additional sum of P50,000.00 as moral damages and to pay the costs.

GUILLERMO PISO, the vice-mayor of the municipality of Asingan, testified that together with police
elements of the municipality of Asingan, they arrested ROCKY ECLERA and ALEX PANIDA somewhere
in La Union in connection with the death of Andres Ildefonso, a relative.

SO ORDERED.
Hence, this appeal.

After their arrest, they were brought to Asingan. At the Asingan Police Department, Rocky Eclera was
investigated and he voluntarily gave a sworn statement. During the taking of Rocky Ecleras sworn
statement, he was present. So also was Rocky Ecleras father. When he was informed of his constitutional
rights, Eclera said that he was not interested. He merely asked that his father be present. So his father was
fetched. His father advised him to tell the truth.

Accused-appellants Panida and Ernesto Eclera contend:[18]

I. THE TRIAL COURT ERRED IN CONVICTING ALEX PANIDA AND ERNESTO
ECLERA, INSTEAD OF ACQUITTING THEM IN BOTH CRIMES OF MURDER AND
CARNAPPING, FOR NON-COMPLICITY.
II. AT BEST, THE PROSECUTION EVIDENCE IS SHORT OF THE QUANTUM OF
PROOF BEYOND REASONABLE DOUBT.

The police investigator translated his statement written in English to Ilocano. After his statement was
translated, he signed the same.

III.
It was the parents of Alex Panida who informed the Asingan PNP of the whereabouts of ALEX PANIDA and
ROCKY ECLERA. (Citations omitted)

ASSUMING GUILT ARGUENDO, APPELLANTS PANIDA AND ECLERA ARE

LIABLE ONLY AS ACCESSORIES FOR CARNAPPING AND HOMICIDE, NOT
MURDER.

Accused-appellant Hora, on the other hand, contends:[19]

After the defense finished presenting its evidence, the prosecution presented Dr. Leonardo Guerrero,
the rural health officer of Asingan, as rebuttal witness. He testified that[14]-

I. THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE
INCONSISTENT AND CONFLICTING TESTIMONIES OF ROCKY ECLERA IN HIS
SWORN STATEMENT AND THOSE TESTIFIED TO BY HIM DURING THE TRIAL.

he was the one who conducted autopsy on the deceased ANDRES ILDEFONSO. He committed an honest
mistake in his Medico-Legal Autopsy Report. The lacerated wounds should be incised wounds.

II. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT ALEX HORA

GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES OF CARNAPPING
AND MURDER BASED SOLELY ON THE CONFLICTING TESTIMONIES OF
ROCKY ECLERA.

There were about 44[15] stab wounds and several incised wounds inflicted on the deceased. These could have
been caused possibly by several persons, with the use of different weapons. (Citations omitted)
On August 23, 1996, the trial court rendered its decision[16] finding all accused-appellants guilty
beyond reasonable doubt of carnapping and murder. The dispositive portion of its decisions reads:[17]

Participation of Accused-Appellants in the Commission of the Crimes

49

Accused-appellants Alex Panida and Ernesto Eclera cite the testimony of Rocky Eclera that Alex Hora
alone hired the tricycle to go to San Manuel, he alone stabbed its driver, and he alone detached the sidecar
from the motorcycle in Urdaneta. They make capital of the fact that Rocky categorically stated that they did
not have any part in detaching the sidecar and in killing the victim but, on the contrary, even tried to stop
Hora from committing the crimes.[20]

Andres Ildefonso being killed. However, he could have escaped from the two. Instead, he stayed with them
for three more days after the commission of the crimes. Even more telling is the fact that he was the one who
mortgaged the very motorcycle taken from the victim, which he admits.[32]
On the other hand, accused-appellants Panida and Ernesto Eclera claim it was accused-appellant Hora
who alone killed the victim and detached the sidecar from the motorcycle.[33] However, when asked why they
did not leave accused-appellant Hora if they did really not agree with what he did despite opportunities to do
so, the two merely claimed it was because they were scared. [34] This is incredible as the two of them, with
Rocky Eclera, could have easily overpowered accused-appellant Hora. At the very least, they could have
escaped from him. After all, there is no showing that accused-appellant Hora guarded them every minute of
the day. Accused-appellant Panida in fact admitted they were free to go to any place during the time they
were together after the killing.[35]

Accused-appellant Hora, on the other hand, questions the reliability of Rocky Ecleras testimonies and
sworn statement[21] which he claims are inconsistent and conflicting.[22] Hora points out the following:[23]
(1) Rocky Eclera testified in his testimony in the carnapping case that Alex Hora asked the
driver to stop the tricycle, then he repeatedly stabbed the driver. (TSN, Nov. 15, 1994, pp.
4, 10). While in his testimony for the defense of accused Alex Panida and Ernesto Eclera,
accused Alex Hora repeatedly stabbed the driver while the tricycle was still running. (TSN,
February 12, 1996, p. 13).

Moreover, if Ernesto Eclera were to be believed, accused-appellant Hora used two kinds of weapons
in stabbing the victim 43 times. This is not, however, likely. That three men inflicted 43 stab wounds with
the use of more than one weapon is more plausible than that only one person inflicted such wounds with two
different weapons.

(2) In the carnapping case, accused-appellant Alex, with the help of Panida and Ernesto Eclera,
detached the side car of the motorcycle (TSN, Nov. 15, 1994, p. 5) while in his testimony
for the defense, it was only Alex Hora who detached the side car (TSN, Feb. 12, 1996, p.
23).

Nor does the claim of accused-appellants Panida and Ernesto Eclera that accused-appellant Hora alone
detached the sidecar[36] inspire belief. It is not easy to detach a sidecar alone. Moreover, a specific tool is
needed in order to unscrew the bolts holding the sidecar to the motorcycle, which cannot be assumed that the
victim Andres Ildefonso would normally carry around with him on a normal day while plying his route.

(3) In his testimony during the stabbing of the driver by Alex Hora, the other co-accused
alighted from the tricycle and tried to pacify Alex Hora (TSN, Nov. 15, 1994, p. 10) while
in his testimony for the defense, at the time that Alex Hora was stabbing the driver, the two
co-accused were inside the tricycle (TSN, 12 February 1994, pp. 17-19).

It is apparent that the respective versions of accused-appellants have only one purpose, to escape
liability by laying the blame on the other. Considering the relevant facts, the ineluctable conclusion is that all
of accused-appellants are guilty of the two crimes. Indeed, in his statement given earlier to the police, the
eyewitness Rocky Eclera named all accused-appellants as the perpetrators of the crimes. It is noteworthy that
this statement was presented in evidence not only by the prosecution (Exh. D) but also by all of the accusedappellants (Exh. 1). The statement, which was made under oath, reads in full:

(4) In his testimony for the defense of accused Panida and Eclera, Rocky Eclera recanted his
implication of the said two co-accused in the killing of the tricycle driver in his sworn
statement given to the Asingan PNP and pointed to accused-appellant Alex Hora as the
only solely responsible for the crimes committed.
Moreover, he claims that his account of what happened on April 11, 1994 is more credible than that of
accused-appellants Panida and Ernesto Eclera and witness Rocky Eclera.[24]

PRELIMINARY
:
Mr. Rocky Eclera, I would like to inform you that you were being
investigated for your involvement in a commission of a crime. I would like also to inform you
that under the New Constitution, you have the right to remain silent, the right of the assistance of
a counsel of your own choice and that all statement you give in this investigation will be used in
your favor and for against you in any Court of justice in the Philippines. Is this clearly understood
by you?

Thus, put simply, accused-appellants Alex Panida and Ernesto Eclera, on the one hand, and accusedappellant Alex Hora, on the other, accuse each other of the crimes. They do not claim that other persons
were involved. Neither is there any dispute as to the relevant facts. On the contrary, all of them agree that

ANSWER

They were together in the morning of April 11, 1994, immediately prior to the commission of the
crimes.[25]

Yes, sir.

QUESTION :
Mr. Rocky Eclera, after having been informed of your rights under the New
Constitution, do you still wish to be investigated?

They all rode on the tricycle driven by the victim to go to San Manuel where the latter was killed.[26]

ANSWER

The victim was stabbed several times as the autopsy report states.[27]
They were all present when the victim was stabbed; no one else was with them. [28]

Yes, sir.

QUESTION :

Do you still need the assistance of a counsel of your own choice?

ANSWER

No more, sir.

QUESTION :
Mr. Rocky Eclera, if you can not afford to have a counsel the government will
provide you a counsel?

After the stabbing, all of them rode on the tricycle to go to Urdaneta where the sidecar was detached.[29]

ANSWER
After the sidecar had been detached, they all rode on the motorcycle to go to Tarlac where they stayed
together for three (3) more days.[30]

No more, sir.

QUESTION :
Do you likewise need the presence of your relatives, your father, mother, brother or
any trusted relatives of yours to be present in this investigation?
ANSWER

Not one of accused-appellants reported the matter to the police.[31]

Yes, sir, I want my father.

QUESTION :
Now that your father was here, are you now ready to give your statement voluntarily
in this investigation?

Accused-appellant Hora tries to extricate himself by claiming that he did not know what the others
(Alex Panida and Ernesto Eclera) were planning to do and that he was so shocked he fainted at the sight of
50

ANSWER

Yes, sir.

We proceeded to Tarlac with the motorcycle, sir.

01. Q - If so, please state your name, age and other personal circumstances?

12. Q

I am Rocky Eclera y Layos, 16 years old, single, jobless and a resident of Brgy San Vicente,
Asingan, Pangasinan, sir.

02. Q
Do you know why are you being investigated in this Investigation Office of the
Asingan Police Station, Asingan, Pangasinan this 20th day of May, 1994?
A

Yes, sir.

03. Q
A

What is the reason why you are being investigated by this office?

For being one of the four suspects in the carnapping of a motorized tricycle and the death of
the driver, sir.

When you were in Tarlac, what happen[ed] next if any?

Alex Panida drove the motorcycle and returned me at Brgy. San Vicente West, Asingan,
Pangasinan, sir.

13. Q

Yes, sir.

So, Ernesto Eclera and Alex Hora left behind in Tarlac?

14. Q

Yes, sir.

Now, do you know if Alex Panida return in Tarlac?

15. Q
Do you also know where Alex Panida, Alex Hora and Ernesto Eclera brought the
motorcycle?

04. Q
You have stated above that you are one of the four suspects of the incident, can you
state the names of the three?

Yes, sir.

16. Q

05. Q

No more for the present time, sir.

They are, Alex Panida, Alex Hora and Ernesto Eclera, sir.

17. Q

Yes, sir.[37]

06. Q
A

Who are they?

When and where did you carnapped the motorized tricycle killed the driver?

Yes, sir it was Andres Ildefonso.

Yes, sir it was Mrs. Sylvia Eclera.

3. that they all rode the tricycle again after the stabbing[40]
4. that all three accused-appellants took part in detaching the sidecar[41]
5. that they stayed together for three days after the crimes were committed going from place to
place.[42]
The only part of the statement which Rocky Eclera retracted was that naming all accused-appellants as
the perpetrators of the crimes. In his testimony in court, he pointed to accused-appellant Hora alone as the
one who committed the two crimes. However, there are reasons for giving his sworn statement weight and
believing that what he said in his sworn statement was the truth not what he stated in court as to who
were guilty of the crimes. The reasons are:
First. Rocky Eclera claims that his statement was actually made by SPO2 Mababa; that it was not
translated to him (Rocky Eclera) in Ilocano; and that he was not informed of his constitutional rights. SPO2
Mababa, however, denied this and likewise pointed out that Rocky Eclera was actually accompanied to the
police station by his father and Vice Mayor Guillermo Piso of the Municipality of Asingan.[43] Rockys father
in fact urged Rocky to tell the truth according to Vice Mayor Piso. [44] Vice Mayor Piso himself also debunked
Rockys claims that he did not make the statement in question and that he was simply asked to sign it without
first having it explained to him in the Ilocano dialect.[45]

Do you also know the owner of the motorized tricycle?

10. Q
After knowing that the driver was already lifeless and was put on the slope of the
mountain, what did you do next?
A

We boarded on the tricycle and proceeded to Urdaneta at Brgy. Macalong wherein Alex
Panida, Alex Hora and Ernesto Eclera detached the sidecar and abandoned it near the irrigation
dike.

11. Q

Are you willing to sign your statement and also willing to testify in Court?

2. that they were all present when the victim was stabbed and no one else was there[39]

Do you know the driver of the motorized tricycle?

09. Q

I have no more questions to ask, can you say more?

1. that all three accused-appellants and himself were together prior to the commission of the
crime[38]

Yes, sir. This is the way. On April 11, 1994 at about 7:00 oclock in the morning, Alex
Panida, Alex Hora, Ernesto Eclera and I were at Poblacion West, Asingan, Pangasinan near the
Police Outpost waiting for a ride going home. A few minutes later a Suzuki motorized tricycle
arrived and we hired it and we proceeded at a certain barangay of San Manuel, Pangasinan which
I do not know. When we arrived at the place, Ernesto Eclera pointed out his knife against the
driver and stabbed the driver many times. Then Alex Panida and Alex Hora alighted from the
tricycle also both armed with a knife and the two stabbed the driver for many times also until the
driver fell on the ground and when they noticed that the driver was still alive, Alex Hora took a
big piece of stone and hit the head of the driver then Alex Panida and Alex Hora [p]ulled the body
of the driver and put it on the slope of the mountain.

08. Q

I do not know anymore, sir.

When he testified in court, first as witness for the prosecution and later as witness for accusedappellants Alex Panida and Ernesto Eclera, Rocky Eclera reiterated all the relevant points in this sworn
statement, to wit:

On April 11, 1994 at about 7:00 oclock in the morning at Poblacion West, Asingan,
Pangasinan and the driver was being brought to a certain barangay in San Manuel, Pangasinan
where he was being killed.

07. Q
You have stated a while ago that the incident was happened on 11 of April 1994, can
[you] state briefly how it happened?
A

With respect to the claim that Ecleras statement was obtained by the police without giving him the
Miranda warnings,[46] suffice it to say that the statement, as quoted above, shows that he was warned of his
rights. At all events, the reliance on Art. III, 12 of the Constitution is baseless since the statement is not
being used against the person who made it. It is not in fact a confession of guilt on Rockys part.

Then where did you go?

51

Indeed, there is nothing in the record to show that Rocky ever complained against policemen who
allegedly coerced him to give the sworn statement in question or in any way violated his constitutional rights
when he appeared before Judge Suller of the Municipal Circuit Trial Court of Asingan to swear to his
statement. Neither does Rocky claim that policemen had ill-motive to implicate accused-appellants Panida
and Ernesto Eclera.

a previous contradictory statement; not that a previous statement is presumed to be false merely because the
witness now says that the same is not true. The jurisprudence of this Court has always been otherwise, i.e.
that contradictory testimony given subsequently does not necessarily discredit the previous testimony if the
contradictions are satisfactorily explained. We have also held that if a previous confession of an accused
were to be rejected simply because the latter subsequently makes another confession, all that an accused
would do to acquit himself would be to make another confession out of harmony with the previous
one. Similarly, it would be a dangerous rule for courts to reject testimonies solemnly taken before courts of
justice simply because the witnesses who had given them later on change their mind for one reason or
another, for such rule would make solemn trials a mockery and place the investigation of truth at the mercy
of unscrupulous witnesses. If Francisco says that when he testified for the prosecution he was paid P700,
what can prevent the court from presuming that subsequently he testified for the defense because the
defendants also paid him to testify for them? The rule should be that a testimony solely given in court should
not be lightly set aside and that before this can be done, both the previous testimony and the subsequent one
be carefully compared, the circumstances under which each given carefully scrutinized, the reasons or
motives for the change carefully scrutinized - in other words, all the expedients devised by man to determine
the credibility of witnesses should be utilized to determine which of the contradictory testimonies represents
the truth. (Citations omitted)

Second. The sworn statement was in fact offered in evidence not just by the prosecution as its Exhibit
D, but also by all accused-appellants as their Exhibit 1. Moreover, the affiant, Rocky Eclera, was presented
as witness by both prosecution and the defense.[47] A sworn statement is hearsay only when the affiant is not
presented in court.[48] Both sides had opportunity to cross-examine Rocky Eclera. The defense presented
Rocky to dispute his own statement, but the trial court, in a well-reasoned decision, supported by evidence on
record,[49] found Rockys retraction to be without merit. The determination of the credibility of witnesses is a
task best left to trial courts, given their unparalled opportunity for observation of the deportment of witnesses
on the stand. For this reason, their findings are accorded great respect in the absence of any compelling
reasons for concluding otherwise.[50]
Third. Rocky Eclera tried to retract his statement naming all of accused-appellants as the culprits by
pointing to accused-appellant Hora alone as the guilty party, because accused-appellants Alex Panida and
Ernesto Eclera are his relatives. Rockys father and Ernestos father are cousins, while Alex Panidas mother
and Rockys father are likewise cousins.[51] Rocky Eclera also testified that he is closer to accused-appellants
Panida and Ernesto Eclera and that he only recently met accused-appellant Hora.[52]

Fifth. Rocky Ecleras testimony is basically the same as his sworn statement. His testimony that only
accused-appellant Hora is guilty can be disregarded and his statement that actually all three accusedappellants committed the crimes believed. For courts may believe one part of the testimony of a witness and
disbelieve another part because courts are not required to accept or reject the whole testimony of a particular
witness.[55]

This explains why Rocky Eclera refused to testify for the prosecution in the murder case after once
testifying in the carnapping case. As the trial court noted:[53]

In the present case, the particular circumstances enumerated above convince us that Rockys claim
that all three accused-appellants participated in the commission of the crimes as embodied in his sworn
statement is the truth and is the more credible. Coupled with admissions by accused-appellants themselves
which corroborate and dovetail with Rockys sworn statement and testimony in relevant aspects, including
the elements of the crimes, they fully justify the trial court in giving much weight to Rockys story in his
sworn statement.

The Court observes that when presented as witness for the accused ALEX PANIDA and ERNESTO
ECLERA, Rocky Eclera evinced hesitancy in his answers. He generalized his denials as to inculpatory
matters respecting accused ALEX PANIDA and ERNESTO ECLERA as due to his being confused and
frightened.
This witness comparatively, was the youngest of the group. He was only 16 years old when he testified in
Lingayen, Pangasinan before Branch 38. After more than one year, he was presented anew not as witness for
the prosecution, but as witness for the defense.

The Existence of Conspiracy

His recantation was not unexpected, considering his reticence and recalcitrance to testify for the State. In
fact, during the time that he testified recanting his testimony in Court as well as his damaging and inculpatory
declarations in his sworn statement against the other accused Alex Panida and Ernesto Eclera, he oftenly
stammered, pondering with difficulty his recantation.

The evidence on record indeed indicates, as the trial court correctly found, that there was conspiracy in
the case at bar.
Conspiracy need not be proved by direct evidence and may be inferred from the conduct of all the
accused before, during, and after the commission of the crime. [56] In the present cases, the totality of the
evidence shows that: accused-appellants together took the tricycle driven by the victim; they were all present
at the time of the killing and the taking of the tricycle; the victim was stabbed several times and they were all
there when it happened; after the killing, all of the accused-appellants rode the tricycle to Urdaneta and then
to Tarlac, and stayed together for three days; all of them took part in detaching the sidecar from the
motorcycle; all three accused-appellants stabbed the victim; and the victim suffered 43 stab wounds
suggesting they were inflicted by more than one person. Clearly, the inevitable conclusion is that accusedappellants acted in concert.

In recanting having stated that accused Alex Panida and Ernesto Eclera helped detached the side car of the
motorcycle as declared in Court, he wants to ascribe falsification in court proceedings. He claims that the
testimony was never made.
The ease with which he ascribes falsification in so far as his cousins are concerned, but with steadfastness in
so far as accused ALEX HORA is concerned, reveals he is being manipulated to pollute the truth inceptually
disclosed by him in his Sworn Statement.
Fourth. A witness prior inconsistent statement can be used to impeach his credibility, but the
converse does not necessarily follow. Retractions are disfavored in law. As this Court held in People v.
Ubia:[54]

Conspiracy being present, all of accused-appellants are liable for the crimes in these cases. For where
there is conspiracy, evidence as to who among the accused rendered the fatal blow is not necessary. All
conspirators are liable as co-principals regardless of the intent and the character of their participation,
because the act of one is the act of all.[57]

The theory of the defense that Franciscos previous testimony is false, as he subsequently declared it to be so,
is as illogical as it is dangerous. Merely because a witness says that what he had declared is false and that
what he now says is true, is not sufficient ground for concluding that the previous testimony is false. No
such reasoning has ever crystallized into a rule of credibility. The rule is that a witness may be impeached by

It remains to determine whether the prosecution has proven all the elements of both crimes in order to
justify conviction of accused-appellants.

52

Accused-Appellants Liability for Carnapping

Liability of Accused-Appellants for Murder

Under R.A. No. 6539, as amended, carnapping is defined as the taking, with intent to gain, of a motor
vehicle belonging to another without the latters consent, or by means of violence against or intimidation of
persons or by using force upon things.

Art. 248 of the Revised Penal Code in part provides:

Any person who, not falling within the provisions of Art. 246 [parricide], shall kill another, shall be guilty of
murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant
circumstances:

In the case at bar, the prosecution has proven through the testimonies of Sylvia Eclera, Rocky Eclera,
and accused-appellants themselves that accused-appellants took the tricycle of Sylvia Eclera. Although only
accused-appellant Hora appears to have mortgaged the motorcycle, the intent to gain on the part of all the
accused-appellants can be inferred from the unlawful taking of tricycle by them. Moreover, it has been held
that it is enough that the other accused intended that any one of them should benefit from the taking. [61]

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to
weaken the defense or of means or persons to insure or afford impunity.
...

Accused-Appellants Liability for Damages

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse.
In Criminal Case No. U-8202 for carnapping, the trial court ordered accused-appellants to pay the
spouses Eclera P20,650.00 representing burial and funeral expenses and P5,000.00 representing expenses
incurred in the recovery of the motorcycle and the sidecar.

The trial court found all of accused-appellants guilty of murder. Indeed, there is no doubt that the
unlawful killing of the victim in the present case has been proven. The autopsy report shows that the victim
suffered 43 stab wounds and that as a result he died. Accused-appellants themselves and witness Rocky
Eclera admitted that the victim was stabbed several times and hit on the head with a big stone to finish him
off. They all admit that the body was pulled towards the mountain immediately thereafter. They likewise
admit that the victim was merely bringing them to their destination and was caught by surprise when
stabbed. There was no claim of self-defense or accident. Thus, the only question to be determined is
whether such killing can be considered murder. Accused-appellants Panida and Ernesto Eclera contend that
it is homicide, though without specifying the reason why, while the trial court maintains it is murder in view
of the qualifying circumstance of treachery.

The evidence in the record fully supports the award of damages concerning these items. [62]
In Criminal Case No. U-8203 for murder, the trial court correctly awarded the heirs of the victim
P50,000.00 as indemnity.[63] When death occurs as a result of a crime, the heirs of the deceased are entitled to
the amount of P50,000.00 as indemnity for the death of the victim without need of any evidence or proof of
damages. The trial court likewise appropriately awarded P50,000.00 as moral damages to the heirs of the
victim.[64]
In addition, the evidence in the record sufficiently establishes the basis for an award of unearned
income to the heirs of the victim.[65] The employer of the victim testified that the latters monthly income is
P3,000.00.[66] The autopsy report[67] shows that the victim was 43 years old at the time of his death. The
deceaseds unearned income is as follows:[68]

To appreciate treachery, two conditions must be present, to wit: (1) the employment of means of
execution that give the person attacked no opportunity to defend himself or to retaliate and (2) the means of
execution were deliberately or consciously adopted.[58]
In these cases, there is no question that the means of execution employed by accused-appellants was
such that the victim had no opportunity to defend himself. The victim was unsuspecting; as far as he was
concerned, he was merely taking passengers from one place to another. He was stabbed with suddenness and
from behind, leaving him totally defenseless. All these, coupled with the fact that the victim was unarmed
and had no opportunity to defend himself, indubitably demonstrate the treacherous nature of the attack.

net
earning

As regards the second requisite, the following facts lead us to no other conclusion than that accusedappellants consciously adopted a mode which would ensure the realization of their purpose without danger to
themselves: accused-appellants were already carrying weapons when they rode the tricycle; the victim was
first stabbed from behind while he was sitting on the tricycle and thus already wounded and disoriented
before he was attacked by all the rest; all three accused-appellants attacked him; he was stabbed 43 times;
they continued stabbing him even as he was defenseless and begging for his life; lastly, the victim was
stabbed on different parts of his body. Accused-appellants could not have inflicted so many wounds and on
different parts of the victims body had they not consciously adopted such manner of attack. The manner in
which the victim was killed and the aforementioned external manifestations of accused-appellants clearly
show that they consciously and deliberately adopted the particular method or form of attack to insure the
accomplishment of their purpose.[59]

gross
(x) = life expectancy x

capacity

annual
income

x =

2(80-43)
3

x [36,000-18,000]

= 24.67 x 18,000
= P444,060.00

However, we do not agree with the trial court that the killing was committed with cruelty. The trial
court considered the number of wounds and the final blow to the head as basis for its finding. But the
number of wounds is not a test for determining whether cruelty is present. The test is whether the accused
deliberately and sadistically augmented the victims suffering. Consequently, there must be proof that the
victim was made to agonize before he was killed.[60] Here, there is no such proof of cruelty.

The Appropriate Penalties

53

living expenses
less

(50% of gross
annual income)

In view of our finding that the aggravating circumstance of cruelty does not exist, the penalty imposed
by the trial court must be reduced to reclusion perpetua.[69] As for the penalty imposed on the accusedappellants for the crime of carnapping, the trial court erred in imposing a straight penalty of 17 years. Under
the Indeterminate Sentence Law, if the offense is punished by a special law, the court shall sentence the
accused to an indeterminate penalty, the maximum term of which shall not exceed the maximum fixed by
said law and the minimum term shall not be less than the minimum prescribed by the same. [70] Thus, the
penalty imposed must be a range.

by her father, the accused in this case. The accused then started scolding Sheryl for her coming late. (pp. 6-7,
tsn, ibid.) The accused who appeared tipsy, started undressing Sheryl by lifting her T-shirt, as a form of
punishment for her coming home late, which punishment she has been experiencing from the accused since
she was 13 years old. After lifting Sheryl's T-shirt, as she was not then wearing any bra, the accused started
holding Sheryl's breast at the same time kissing it. As Sheryl was practically leaning on the bed, the accused
dragged Sheryl at the edge of the bed so that she would be facing the accused a little bit. The accused then
knelt down on the floor and continued holding the breast of Sheryl with one hand while the other hand was
holding the private organ of Sheryl. Sheryl tried to prevent the accused from doing what he was doing but
the accused told Sheryl you did something wrong and I told you I would do that as a punishment to you (p.
7, tsn. ibid.). Despite the pleas of Sheryl, the accused continued kissing her breasts. Afterwards, the accused
pulled Sheryl at the side of the bed and the accused removed her pair of short pants and panty. After
removing the pair of short pants and panty of Sheryl, the accused grasped the hips and waist of Sheryl and
pulled her towards him. Thereafter, when the accused was already in between the thighs of Sheryl, the
accused started kissing the private organ of Sheryl, the accused was at the same time inserting his finger into
Sheryl's vagina (p. 8, tsn, ibid.). Thereafter, the accused stood up a bit, pulled down his short pants and knelt
down at the side of the bed. The accused then got a hold of Sheryl's two feet and placed them on top of his
shoulders. The accused once again grasped the hips of Sheryl and pulled her nearer to him. When Sheryl
was pulled nearer to the accused, the accused inserted his private organ into Sheryl's private organ. Although
'Sheryl tried to free herself by pushing the shoulders of the accused with her two feet and telling the accused
to stop what he was doing to her, the accused, in order to have a full grip, got hold of the legs of Sheryl and
placed them in between the arms of the accused (pp. 8-9, tsn, ibid.). After inserting the accused's private
organ into the private organ of Sheryl, the accused performed a pumping motion. Subsequently, the accused's
private organ was removed from the private organ of Sheryl and the accused rubbed his organ with the
private organ of Sheryl. Thereafter, Sheryl felt something cold which was a sticky liquid emitted from the
private organ of the accused and which the accused scattered in between Sheryl's private organ and on her
stomach. Later on, the accused got a tissue paper and wiped the liquid-like substance. The accused then put
on his pair of pants and left the room (pp. 9-11, tsn, ibid.). The following morning, Sheryl went to school at
Jose Abad santos Memorial School (JASMS) in Quezon City.

The charge being simple carnapping, the imposable penalty is imprisonment for not less than 14 years
and 8 months and not more than 17 years and 4 months.[71] There can be no suppletory effect of the rules for
the application of penalties under the Revised Penal Code or by other relevant statutory provisions based on,
or applicable only to, the rules for felonies under the Code. While it is true that the penalty of 14 years and 8
months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion
temporal, such technical term under the Revised Penal Code is not given to that penalty for
carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in
the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot
suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. [72] For this reason, we
hold that the proper penalty to be imposed on each of accused-appellants is an indeterminate sentence of 14
years and 8 months, as minimum, to 17 years and 4 months, as maximum.
WHEREFORE, the decision of the Regional Trial Court of Urdaneta, Pangasinan, Branch 47 in
Criminal Case Nos. U-8202 and U-8203 is AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. U-8202, accused-appellants are sentenced to suffer an indeterminate
sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum.
2. In Criminal Case No. U-8203, accused-appellants sentence is reduced to reclusion
perpetua.
3. In Criminal Case No. U-8203, accused-appellants are ordered to pay the heirs of the victim
the amount of P444,060.00 as unearned income.

On February 12, Sheryl who could no longer bear the punishment in the form of sexual abuse she had
been getting from her father as in fact she was first raped when she was thirteen (13) years of age, left their
house at Scout Rallos, Quezon City, and stayed at her maternal grandmother's house at Scout Lozano,
Quezon City. When she was asked to go back to her parents' house at and settle her differences with the
accused, Sheryl confided to her mother and grandmother the real reason why she did not like to go back to
their house. Thereupon, her mother and grandmother immediately sought the assistance of General Hercules
Catalua, Chief of the Central Police District Command, who happens to be married to a cousin of the
mother of Sheryl.[1]

[G.R. No. 127356. June 29, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAVID SILVANO y HAYAG, accused-appellant.
DECISION
PER CURIAM:
It is not for human to ravish what they produced. The rape committed by a father against his own
daughter regardless of whether it is done under the cloak of parental discipline has no place in our
society. That is why, it is considered as a heinous felony meted with the supreme penalty of termination of
the assailant's life. For indeed those who lust must not last.

Consequently, appellant was charged with rape by his own daughter to which he pleaded not guilty
when arraigned. Prior to the presentation of evidence for the prosecution, the complaint was amended
without objection from appellant, who when re-arraigned entered the same plea. The amended complaint
reads:

Once again the Court is saddled with another nightmare of lustful and incestuous defloration
committed by one from whom the victim expects protection. The facts given credence by the trial court and
quoted by both the prosecution (with page reference) and the defense in their respective Briefs, which are
ably supported by evidence on record happened this wise:*

That on or about the 23rd day of January, 1996 in Quezon City, Philippines, the said accused who is the
father of the Complainant by means of force and intimidation, to wit: then and there wilfully, unlawfully and
feloniously, undressing the undersigned complainant who is under eighteen (18) years of age and putting her
legs on top of his shoulders, and thereafter have carnal knowledge with the undersigned complainant against
her will and without her consent.[2]

Sheryl Silvano is a beautiful mestiza (as may be shown in the pictures, Exhs. T to T-5), and already 5'6
tall at her age of sixteen (16) years, having been born on January 20, 1980. (Exhs. F and F-1) Her height
have been inherited from her parents as her father is 6'2 tall and her mother is a mestiza. She is the legitimate
daughter of David Silvano y Hayag, the accused in this case, and Shirley Ann G. Pedrosa, as evidenced by a
marriage contract (Exhs. E & E-1). Sheryl is the eldest and the only girl with two brothers, namely: John
David, who was born on July 29, 1984 and Noel William, who was born on April 16, 1986. (pp. 1-5, tsn,
August 14, 1996)

After the prosecution presented its case, appellant filed a motion for leave to file demurrer to evidence
on the ground that his guilt was not proven beyond reasonable doubt, which motion, however, was denied by
the lower court. Appellant thus presented evidence for his defense. Thereafter, the lower court rendered
judgment convicting appellant of the crime charged, sentenced him to suffer the penalty of death, and ordered
him to indemnify the victim. The dispositive portion of the decision a quo states:

On January 23, 1996 at 10:30 in the evening, while Sheryl was sleeping in her room at the second floor of
their house located at 134-C Scout Rallos Street, Barangay Sacred Heart, Quezon City,** she was awakened
54

WHEREFORE, this court finds the accused David Silvano y Hayag guilty beyond reasonable doubt of the
crime of rape defined in and penalized by Article 335 of the Revised Penal Code, as amended, and sentences
him to suffer the penalty of death and to pay the costs. The accused is hereby ordered to indemnify the
victim, Sheryl P. Silvano, the amount of P50,000.00, as moral damages, and P30,000.00 as exemplary
damages.

1.) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim;
2.) When the victim is under the custody of the police or military authorities;
3.) When the rape is committed in full view of the husband, parent, any of the children or other
relatives within the third degree of consanguinity;

SO ORDERED.[3]

4.) When the victim is a religious or a child below seven (7) years old;

Upon automatic appeal to this Court,[4] appellant assails his conviction by insisting on his
innocence. He denied the accusation arguing that the charge leveled against him was a mere ploy of his wife
and the latter's relatives for the purpose of severing their marital relationship.

5.) When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS)
disease;

In the review of death cases, foremost in the mind of the Court is the heavy penalty which an accused
faces. Aware that life once taken, is like virginity which once defiled, can never be restored,[5] a thorough
scrutiny of the case is in order. Against the proffered excuses of appellant, however, and guided by the three
principles in the review of rape cases, to wit:[6]

6.) When committed by any member of the Armed Forces of the Philippines or Philippine National
Police or any law enforcement agency;
7.) When by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation. (emphasis supplied)[10]

a.) An accusation for rape can be made with facility; it is difficult to prove but more difficult for
the person accused, though innocent, to disprove;

In proving such felony, the prosecution must allege and prove the ordinary elements of 1.) sexual
congress 2.) with a woman 3.) by force and without consent, [11] and in order to warrant the imposition of
death penalty, the additional elements that 4.) the victim is under 18 years of age at the time of the rape and
5.) the offender is a parent (whether legitimate, illegitimate or adopted) of the victim should also be alleged
and proven. All such elements are undisputedly present in this case. The victim herein at the age of sixteen
(16) years was subjected to forced sexual intercourse by appellant, as duly shown in her testimony:

b.) In view of the intrinsic nature of the crime of rape, where only two persons are usually
involved, the testimony of the complainant is scrutinized with extreme caution; and
c.) The evidence of the prosecution stands or falls on its own merits and cannot be allowed to
draw strength from the weakness of the defense.

Q. While you were sleeping at 10:30 in the evening of January 23, 1996, what happen?***

The fundamental presumption of innocence[7] enjoyed by appellant was overcome with the requisite
quantum of proof in criminal cases and his guilt sufficiently established by proof beyond reasonable doubt. [8]

ATTY. UMINGA:
Objection, your Honor, the question is misleading, while you were sleeping it does not mean
established that she was sleeping.

The qualified rape of an underaged relative for which appellant was charged is classified as a heinous
crime and penalized under Section 335 of the Revised Penal code (RPC), as amended by Section 11,
Republic Act (R.A.) 7659,[9] which provides:

COURT:
When and how rape is committed - Rape is committed by having carnal knowledge of a woman under any
of the following circumstances.

Witness may answer.

A. I was awakened by my father.

1.) By using force or intimidation;

Q. When your father woke you up, what happened?

2.) When the woman is deprived of reason or otherwise unconscious; and

A. He was scolding me.

3.) When the woman is under twelve years of age or is demented.

Q. What did he say?

The crime of rape shall be punished by reclusion perpetua.

A. He was asking me why I came home late. That I knew that I had a punishment.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.

Q. What else did your father do, if there was any aside from scolding you?
A. He was trying to undress me, particularly my shirt.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be
death.

Q. Was he able to undress you?

When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.

A. Yes, he was able to lift up my shirt.

Q. And then what happen?

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

A. He was holding my breast and he was kissing my breast.

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

Q. What else did he do?

55

A. I was leaning on the bed, he dragged me on the side ways, so that, I will be facing him a bit and then he
knelt down on the floor.

A. He grasped me by my hips, he pulled me nearer to him and he placed his organ inside my organ.
Q. After the accused, your father, placed his organ inside your organ, what else happen?

Q. After he knelt down on the floor, what else did he do?

COURT:

A. He continued kissing and holding my breast, while he was holding his other hand to my breast and he was
kissing it, he was holding my private organ his other hand.

Put on record that the witness is crying.

Q. And what were you wearing at that time?

ATTY. MENDOZA: (to the witness)

A. I was wearing t-shirt without bra.

Q. After your father put his organ inside your organ, what else did he do?

Q. And when he was holding your private organ, what happened?

A. He just put his organ inside my organ. He was almost on top of me.
COURT: (to the witness)

A. I was trying to tell him, not to do this to me, but he insisted and said that you did something wrong, and I
told you that I would do that punishment to you but I said that I did not agree.

Q. What about you, what did you do, when your father, the accused in this case placed his organ inside your
organ?

Q. And then what did he do if any, after he was holding your private part and he was holding and kissing
your breast?
A. He told me and he insisted that, he would do that to me, but I said no, please don't.

A. I was trying to remove my two feet on top of his shoulder, I was pushing him by his shoulder with my
two feet and I was telling him to stop doing it to me.

Q. When you answered him stop, what did he do?

Q. And what was the response of your father?

A. He still continued kissing my breast and kissing my private organ.

A. He kept on grasping my hips nearer to him.

Q. After than, what happened?

COURT: (to Atty. Mendoza)

A. He pulled me at the side of the bed.

Go ahead.

Q. When he pulled you at the side of the bed, what did your father do?

ATTY. MENDOZA: (to the witness)

Q. So, while you were trying to free yourself, and your father continued grasping your hips closer to him,
what else happen?

A. He undressed my shorts and panty.

Q. After your father removed your shorts and panty, what else did he do?

A. I was able to remove my feet a bit but in order for me not to break free, he placed my legs in between his
arms and both feet and then he gripped it.

A. He grasped me by my hips, he grasped me by my waist, and he pulled me towards him.

Q. And where was his position when he pulled you towards him?

Q. When you were able to free your legs from the shoulder of your father, he grabbed your legs and grasped
it with his arms, what happen?

A. He was at the side of the bed.

A.

He placed his organ in my organ.

Q.

And was he able to put his organ inside your vagina?

A.

Yes, then I felt pain.

Q.

After that, what happen?

A.

I tried again resisting him, moving again my two feet from his grasp. I tried to get far from the edge
of the bed, far from him.

A. He was putting his finger inside my vagina hole or opening and he continued kissing it.

Q.

And you were able to remove his arms from your legs?

Q. After putting his finger inside your private organ, what else did he do?

A.

No, sir.

A. He stood up a bit, he removed or lowered down his pants and then he knelt down at the side of the bed.

Q.

So, what happen?

Q. After removing his pants, after lowering down his pants, and kneeling down a bit, what did your father
do?

A.

His organ removed from my organ, but he tried to put it but since he can't.

Q.

Since he can't, what did he do?

A.

He placed his organ on top of my organ.

Q. And in relation to you, where was he located?

A. In between my thighs.
Q. What did he do after that?
A. He started kissing my private organ.
Q. When he was kissing your private organ, what else did he do?

A. He got my two feet and placed him on top of his shoulder.

Q. After putting your two feet on top of his shoulder, what did he do?
56

Q.

GENERAL AND EXTRAGENITAL

And then, what did he do?

Rubbing it on top of my organ.

Fairly developed, fairly nourished and coherent female subject. Breasts are hemispherical with pinkish
brown areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft.

Q. and what were you saying in tagalog?

A.

kinikiskis po.

Q.

And then, what did you do?

A.

And then, I still tried telling him stop doing to me.

Q.

You cannot free yourself from your father?

A.

No, sir.

Q.

And after that, he was rubbing his organ with your organ, what happen?

A.

I felt cold, liquid-like substance on top of my organ and somewhere in between my stomach.

Q.

And then, after that, what happen?

A.

He got his shoe (should be tissue) and then he wiped it.

GENITAL:
There is abundant growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish brown
labia minora presenting in between. On separating the same, disclosed an elastic, fleshy-type hymen with
deep healed lacerations at 3, 7 and 9 o'clock positions. External vaginal orifice offers moderate resistance to
the introduction of the examining index finger and the virgin-sized vaginal speculum. Vaginal canal is
narrow with prominent rugosities. Cervix is normal in size, color and consistency.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of recent application of any form of trauma at the time of examination.

COURT: (to the witness)

Q.

Where did that fluid came from?

A.

It came from his organ.

Q.

Did you see?

A.

Yes, your Honor.

REMARKS:
Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa. (emphasis
supplied)[13]
It is settled that carnal knowledge is consummated by the mere touching of the woman's labia of the
pudendum by the male sex organ.[14] The briefest contact of penile invasion is as serious as full penetration
and thus, rapture of the hymen is not required.[15] In addition, the absence of fresh lacerations does not
disprove rape.[16] Appellant could have been held liable for instrument or object rape under R.A. 8353
when he inserted his tongue and finger into her daughters vaginal orifice. Luckily for him, at the time he
committed such act, instrument or object rape was not yet punishable.

ATTY. MENDOZA: (to the witness)

Q.

Will you please tell to the Honorable Court whether the place while your father was doing this to you
was lighted?

A.

Yes, sir.

Q.

What was the lighting?

A.

Flourescent light.

Q.

And who put the lights on?

A.

He opened it.

Q.

After that, what did your father do?

A.

He stood up and wore his underpants.

Q.

And where did he go?

A.

He went out of the room.

Q.

And what did you do?

A.

I wore my underpants too then I covered my face with the pillow. (italics supplied)[12]

For his defense, appellant claims among others, that the victim offered only a token resistance when
the alleged sexual acts were being done. Be that as it may, the failure to shout or offer tenacious resistance
cannot be construed as a voluntary submission to appellant's desires. [17] It is enough if the prosecution had
proven that force or intimidation concurred in the commission of the crime as in this case. The law does not
impose upon a rape victim the burden of proving resistance.[18] Moreover, physical resistance need not be
established in rape when intimidation is exercised upon the victim and she submits herself against her will to
the rapist's lust because of fear for her life or personal safety. [19] The force, violence or intimidation in rape is
a relative term, depending not only on the age, size, and strength of the parties but also on their relationship
with each other.[20] Herein victim is only 16 years old, about 5'6 and weighs 128 lbs. As compared to her
father who is his early 40's, about 6'2 weighs 210 lbs. [21] And a former driver/messenger in the Italian
embassy.[22] Considering also that the assailant is no less than the victim's own father who wields parental
influence over her person, the crime undoubtedly was committed with facility.[23] The latter's moral
ascendancy over the former substitutes for violence or intimidation. [24] A woman at such young age like the
victim herein can only cower in fear and yield into submission. Rape is nothing more or less than a
conscious process of intimidation by which a man keeps a woman in a state of fear and humiliation. Thus, it
is not even impossible for a victim of rape not to make an outcry against an unarmed assailant. [25]
Appelant's contention that he could not have possibly raped her own daughter in the room where the
latter was sleeping on the night of the incident considering that it was small, is not a reason to exculpate him
from his barbaric and prurient desires. There is also no merit in his assertion that the victim's two younger
brothers - one of whom is deaf - who were sleeping in the same room, would have been awakened when she
struggled against the advances of appellant. Suffice it to say, however, that while the brutish sexual assault

The victim's claim that she was ravished is corroborated by the medical findings of the physician who
examined her, to wit:
57

strong evidence of non-culpability to merit credibility.[53] Otherwise, the same is self-serving and deserves no
greater evidentiary value.[54] It should be noted that affirmative testimony, like that of the victims, is stronger
than a negative one.[55] His excuse regarding support is non-sequitur. The fact that he supports her does not
give him the license to rape her. It is his obligation to give support to her daughter as provided in Article
195(2,3) as well as his right and duty under Article 220(1) of the Family Code which expressly provides:[56]

on the victim was being committed under the cloak of the night and disguised as a form of parental sanction,
it is not impossible nor incredible for the members of the complainant's family to be in deep slumber and not
to be awakened.[26] because rape can be committed in the same room where other members of the family are
also sleeping.[27] His argument that it is unusual and improbable for the rape to occur at about 10:30 in
the evening since people are not yet soundly sleep[28] lacks merit. Evidence without argument is worth
more than argument without evidence. In their union they are inseparable.[29] In any case, as consistently
ruled by the Court, lust is no respecter of time and place[30] and also of kinship. Non-consensual acts of sex
can be done even in places where people congregate, in parks, along the roadsides, in school premises, in a
house where there are other occupants,[31] and even in places which to many, would appear unlikely and high
risk venues for its commission.[32] In any case, there is no rule that rape can be committed only in
seclusion.[33]

Article 195. Subject to the provisions of the succeeding Articles, the following are obliged to support each
other to the whole extent set forth in the preceding Article:
xxx xxx

Appellant alludes as rather unusual for him to rape his own daughter by scolding her first, as it
would certainly cause some noise.[34] This is no excuse for a rapacious parent. Precisely, he scolded her to
make a good pretext that any noise created thereafter was nothing but part of the parental sanction and
discipline on an allegedly erring child and thus, distract, if not mislead, possible assistance once he performs
his evil instincts. Appellant likewise argues that the rape is implausible, improbable if not
impossible[35] considering that the series of acts allegedly lasted for about 40 minutes - 15 minutes for
kissing and sucking her breast and nipples, 15 minutes for kissing her private parts and about 15 to 20
minutes for doing the motion. This is a trivial matter which does not go into the why's and wherefore's
of the crime.[36] On the contrary, it strengthened rather than diminished the victim's credibility[37] as they
erased suspicion of a rehearsed testimony.[38] Lust may be consummated in a matter of seconds or it could
last for hours depending on the parties and the circumstances. To the helpless victim, every second of the
monstrous act is transformed into a long period of agony. Besides, it is too much to demand from the rape
victim to keep track of the exact duration of every humiliating act done to her or to make an accurate account
or her traumatic experience.[39] Errorless testimony cannot be expected of her[40] for she may not be able to
remember and recount every ugly detail of the harrowing experience and appalling outrage, especially so
since she might in fact be trying not to remember them, [41] as they are painful to recall.[42] In any case, the
undisputed fact remains that the copulation was against the victims will. If somewhere along the motion,
she stopped resisting, it is not unreasonable to conclude that the fear is still there or that fatigue had
intervened in her tenacity to fight the rapacity. A victim who cries rape, more so if she is a minor, almost
always says all that is needed to signify that the crime has been committed. [43] The intimate flow of
revelations from a daughter to a mother of a fathers outrageous conduct impelled them to seek assistance
from their relatives including a police General. In turn, the latter ordered his men to invite the appellant to
the precinct without any warrant of arrest, an illegal act which would render all evidence obtained in
violation of his right against a warrantless arrest inadmissible.[44]

xxx

(2). Legitimate ascendants and descendants;

(3). Parents and their legitimate children
Article 220. The parents x x x shall have with respect to their unemancipated children or wards the
following rights and duties:
(1). To x x x support (emphasis supplied).
The victim testified that appellant told her that she will be punished for coming home late at night and
the punishment is to have sex with him. This ratiocination is the product of a sick mind of an equally sick
parent who does not deserve to be such. It is clear from the provisions of Article 209 of the Family Code that
from the mere status of being a parent flows ones natural right and duty not only of the caring for and
the rearing of their unemancipated children but above all the development of their moral, mental, and
physical character and well-being. Although the Family Code recognizes the parents rights and duties to
impose discipline on their unemancipated children; Supervise their activities, recreation and association
with others x x x; and prevent them from acquiring habits detrimental to their x x x morals, [57] it does not
authorize them to force their offspring to copulate with them under the mask of discipline, or invade their
honor and violate their dignity nor does it give them the license to ravish the product of their marital
union. Appellants way of punishment comes not in the form of correction but of an insane sexual
gratification. Sex with ones own child is per se abhorrent and can never be justified as a form of parental
punishment. The practice of sexual exploitation of the youth in the guise of disciplinary action is not a
solution to juvenile curiosity which is part of growing up. His gratification instills an unnamed trauma in the
childs innocent mind when she still cannot understand the meaning of sexual behavior. [58] Moreover, instead
of instructing and educating his own daughter with the right precept and good example, appellant provided
her with perversed and distorted moral and spiritual guidance[59] to the extent of brainwashing her that sex
with ones father is nothing but a disciplinary sanction and part of sex education [60] which the latter teaches
her. Worse, the daughter herein even entertained doubts as to the normality and abnormality of her fathers
deplorable acts.[61] It is also appellants duty under the Family Code to give her love and affection, advice
and counsel, companionship and understanding.[62] Yet what she got was the humiliation and the destruction
of her life, good future and the very essence of her existence.

Under R.A. No. 7438, the so-called invitation of a person in connection with an offense he is
suspected to have committed is a prohibited act for which the inviting officer may be held liable. [45] Be that as
it may, in accordance with settled jurisprudence, any objection, defect or irregularity attending an arrest must
be made before the accused enters his plea.[46] Appellant pleaded without making such objection and the
court has to call the attention to appellants counsel on whether he is going to challenge the validity to the
arrest. Despite his manifestation that he will do so, nothing was filed nor initiated to that effect after
probably realizing the futility to such action. In addition thereto, appellants failure to quash the information,
his participation in the trial and by presenting evidence in his behalf, placed him in estoppel to make such
challenge.[47] He has patently waived any objection or irregularites and is deemed as having submitted
himself to the jurisdiction to the court.[48] It should be noted that the legality of arrest affects only the
jurisdiction of court over the person of the accused. [49] Consequently, if objection on such ground is waived
the illegality of the arrest is not sufficient reason for setting aside an otherwise valid judgment rendered after
the trial, free from error.[50] The technicality cannot render the subsequent proceedings void and deprive the
State of its right to convict the guilty when the facts on the record point to the culpability of the accused. [51] In
any case, appellant is not herein convicted on the basis of whatever was illegally obtained by the police out of
the invitation but by the admissible proof presented by the prosecution particularly, the victims credible
testimony.

Appellant further contends that her daughters acts after the alleged rape, such as going to school the
next day, leaving their home after more than two weeks had lapsed since the incident and reporting the same
only when confronted by her mother are inconsistent with the behavior of a rape victim. The contention is
without merit. The behavior and reaction of every person cannot be predicted with accuracy. It is a timehonored precept that different people react differently to a given situation or type of situation and there is no
standard form of behavioral response when one is confronted with a strange or startling or frightful
experience.[63] Not every rape victim can be expected to act conformably to the usual expectations of every
one.[64] Some may shout; some may faint; and some may be shocked into insensibility; while others may
openly welcome the intrusion.[65]

When charged before the court, appellant denied the accusation and prefaced such denial with the
assertion that he is giving her financial, material and educational support. With respect to his denial, it is
inherently a weak defense which cannot prevail over positive identifications. [52] It must be buttressed by
58

The failure of the victim to immediately reveal his fathers incestuous acts is not indicative of
fabricated charges. It should be noted that:

Apparent from the Courts decisions in rape cases with the offended parties being young and immature girls
from the ages of twelve to sixteen, x x x is (the) considerable receptivity on the part of this Tribunal to lend
credence to their version of what transpired, considering not only their relative vulnerability but also the
shame and embarrassment to which such a grueling experience as a court trial, where they are called upon to
lay bare what perhaps should be shrouded in secrecy, did expose them to. This is not to say that an uncritical
acceptance should be the rule. It is only to emphasize that skepticism should be kept under control. [87]

Many victims of rape never complain or file criminal charges against their rapists. They prefer to bear the
ignominy and pain rather than reveal their shame to the world or risk rapists making good their threats to kill
or hurt their victims.[66]

Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Jurisprudential annals
is replete with the rule that the findings of facts and assessment of credibility of witnesses is a matter best left
to the trial court because of its unique position of having observed that elusive and incommunicable evidence
of the witnesses deportment on the stand while testifying, which opportunity is denied to the appellate
courts[88] subject to certain exceptions,[89] none of which, however, is attendant in this case. Trial courts deal
with live witnesses while appellate tribunals rely on the cold pages of the written records. [90] In this case, the
lower courts findings, conclusions and evaluation of the testimony of witnesses is received on appeal with
the highest respect,[91] the same being supported by substantial evidence on record. No cogent reason was
shown that the court a quo had overlooked or disregarded material facts and circumstances which when
considered would have affected the result of this case[92] or justify a departure from its assessments and
findings.[93]

The victim herein is in no case different. Her shame and genuine fear of what appellant might do to
her or her brothers had temporarily sealed her lips. This is why she left their home, the scene of her
defilement where her appellant father resides and went to her maternal grandmothers place. Only when
confronted why she would not come back to their house did she reveal the avalanche of shame and
degradation that had befallen her at that tender age of 16 years from her very own father. It is not uncommon
for a young girl at such age to be intimidated into silence and conceal for sometime the violation of her
honor, even by the mildest threat against her life. [67] Silence is not an odd behavior of rape victims who do
not always immediately go to the rooftop and denounce their assailants. [68] This natural reticence or aversion
of the victims to reveal the humiliation attaching to the crime is a stigma they will have to bear indefinitely
thereafter.[69] The fear of these young victims of reprisals upon them or their families easily cows them into
submission and silence. Worse, in incestuous rape, that fear which compels non-revelation is further
reinforced by the moral ascendancy of the rapist over his ravished relative.[70] As the father of the victim,
appellant whom she called Daddy had assumed parental authority over her during her formative
years. Undisputedly, he exerts strong moral influence over complainant.[71]

Coming now to the award of damages. Under the latest jurisprudence, a victim of simple rape is
entitled to a civil indemnity of Fifty Thousand Pesos (P50,000.00) but if the commission of the crime of rape
is effectively qualified by any of the circumstances under which the death penalty may be imposed, the
civil indemnity for the victim shall be not less than Seventy-Five Thousand Pesos (P75,000.00)[94] In
addition to such indemnity, the victim or her heirs, as the case may be, can also recover moral damages
pursuant to Article 2219 of the Civil Code[95] in such amount as the court deems just, without the necessity
for pleading or proof of the basis thereof.[96] Civil indemnity is different from the award of moral and
exemplary damages.[97] The requirement of proof of mental and physical suffering provided in Article 2217
of the Civil Code is dispensed with because it is recognized that the victims injury is inherently
concomitant with and necessarily resulting from the odious crime of rape to warrant per se the award of
moral damages.[98] Thus, it was held that a conviction for rape carries with it the award of moral damages to
the victim without need for pleading or proof of the basis thereof[99] other than the fact of the commission of
the offense.[100] Rape victims whose age ranges between 13 to 19 years are entitled to moral
damages.[101] Under the circumstances of this case, appellant is liable to the victim for the amount of
P75,000.00 as civil indemnity and P50,000.00 as moral damages.

The imputation by appellant of wrongful motive to his wife who allegedly used their daughter as an
instrument in concocting the rape just to sever their marital ties is too shallow. It is unnatural for a parent to
use her offspring as an engine of malice especially if it will subject her to embarrassment and even
stigma.[72] No mother in her right mind would subject her child to the humiliation, disgrace and trauma
attendant to a prosecution for rape, if she were not motivated solely by the desire to incarcerate the person
responsible for her childs defilement[73] or if the same is not true.[74] In the same vein, a mother would not
expose her daughter to such an ignominy merely to end her relationship with her husband or to retaliate
against him for his transgressions as a family man.[75] And it is unbelievable for a daughter to charge her own
father with rape at the expense of being ridiculed.[76] Accordingly, as the defense failed to prove that the
principal witness was moved by improper motive, the presumption is that she was not so moved and her
testimony entitled to full faith and credit.[77]
The contention that he cannot be convicted on the sole testimony of his daughter with respect to the
rape[78] easily crumbles in the light of the doctrine that only two people are privy to the crime of rape and the
evaluation of the evidence presented ultimately resolves around the credibility of complainant. [79] The trial
court, giving full faith and credence to the victims testimony found it to be logical, straightforward and
candid manner, without any artificialities or pretensions that would tarnish the credibility of her
testimony.[80] It even observed that she shamelessly cried as she was narrating the tragic experience and
her stern demeanor evinces the hatred she had for the accused.[81]Notwithstanding that the victims
testimony is uncorroborated, the accused may be convicted solely on the basis thereof so long as it meets the
test of credibility,[82] and the prosecution is not bound to present witnesses other than the victim. [83]

With respect to the penalty, the sentence imposed by the trial court is proper. Under Article 335 of the
RPC, as amended by R.A. 7659, this kind of qualified rape when concurred in by any of the 7 [102] qualifying
circumstances enumerated in the law carries the penalty of death, provided that such circumstance is alleged
and proven.
In the case at bench, there is no dispute that appellant is the father of the victim, a fact which he even
admitted during his direct examination[103] and is further corroborated by the victims duly certified
Certificate of Live Birth which indicates appellant as her father.[104] Moreover, such admission is sufficient to
establish paternity without further proof. This is so because, acts and declarations about pedigree which
includes relationship is an admissible hearsay under the rules. [105] Besides, appellant interposed no
objection to the victims testimony when she positively identified the former as the one who raped her on
January 23, 1996.[106] Such relationship of father-daughter in rape cases is considered an aggravating
circumstance under Article 15 of the RPC.[107]

It is highly unlikely that the victim, a 16-year old high school student, presumably a virgin, an
innocent and unsophisticated girl, unexposed to the ways of the world, would concoct a reprehensible story
of defloration, no less than against her own father, allow an examination of her private parts and then subject
herself to the rigors, trouble, inconvenience, ridicule and scandal of a public trial, where she has to bare her
harrowing and traumatic experience, and be subjected to harassment, embarrassment and humiliation during
cross-examination, unless she was in fact raped and deeply motivated by her sincere desire to do so solely to
seek justice and obtain redress for the unforgivable and wicked acts committed upon her.[84] This Court has
repeatedly ruled that no young and decent Filipina would publicly admit that she was ravished unless that is
the truth for it is her natural instinct to protect her honor.[85]

Death being a single indivisible penalty and the only penalty prescribed by law for the crime of rape
when the victim is under eighteen (18) years of age and the offender is a parent, the court has no option but
to apply the same regardless of any mitigating or aggravating circumstance that may have attended the
commission of the crime[108] in accordance with Article 63 of the RPC, as amended. [109] In similar per
curiam cases, involving the rape by a father of his minor daughter, the Court had imposed the penalty of
death.[110] The case at bench carries with it the penalty of death which is mandatorily imposed by
law[111] within the import of Article 47 of the RPC, as amended, which provides:

Complainants tender age further lends to her credibility.[86] Thus:

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The death penalty shall be imposed in all cases in which it must be imposed under existing
laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the
crime or is more than seventy years of age or when upon appeal or automatic review of the case by the
Supreme Court, the required majority vote is not obtained for the imposition of the death penalty, in which
cases the penalty shall be reclusion perpetua.
In an apparent, but futile attempt to mislead this Court, appellant quoted the amended complaint in its
Brief underscoring the words eighteen (18) years of age[112] but omitted the word under to show that the
victim was already at least 18 years old at the time of the rape. And, it is neither controverted nor contested
that the victim was below 18 years of age when her father raped her on January 23, 1996. It can be easily
verified from the records that his daughter was born at about 5:30 a.m. on January 20, 1980 as shown in the
latters authenticated Certificate of Live Birth.[113] Simple arithmetic would show that on the day she was
raped, only three days has just lapsed since the victim celebrated her sixteenth (16) birthday. Besides,
appellant did not object to the victims testimony that she was 16 years old. [114] The testimony of a person as
to her age is admissible although another hearsay, though she can have no personal knowledge of the date of
her birth, as all knowledge as to ones age is acquired from whatever is told by the parents or relative[115]
and such testimony constitute an assertion of family tradition.[116] It is not also unreasonable to conclude that
such was her age considering that her parents were married sometime in July, 1979 [117] and that their first
offspring, the victim herein, would probably be born within the next year.
Four justices of the Court, however, have continued to maintain the unconstitutionality of Republic
Act 7659 insofar as it prescribes the death penalty; nevertheless they submit to the ruling of the majority to
the effect that this law is constitutional and that the death penalty can be lawfully imposed in the case at bar.
WHEREFORE, the conviction of appellant is hereby AFFIRMED with the MODIFICATIONS that
appellant is ordered to pay his daughter P75,000.00 as civil indemnity, in addition to the moral damages of
P50,000.00 awarded by the trial court. The award of exemplary damages is deleted for lack of legal basis.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal
Code, upon finality of this decision, let certified true copies thereof, as well as the records of this case be
forwarded without delay to the Office of the President for possible exercise of the clemency or pardoning
power.

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