Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 137520-22

May 9, 2002

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ALFREDO BAROY and FELICISIMO NACIONAL, appellant.
PANGANIBAN, J.:
Where no aggravating circumstance is alleged in the information and proven during the trial, the
crime of rape through the use of a deadly weapon may be penalized only with reclusion
perpetua, not death.
The Case
Before us for automatic review is the January 20, 1999 Decision1 of the Regional Trial Court of
Paraaque City (Branch 259) in Criminal Case Nos. 98-355/7, finding Alfredo Baroy and
Felicisimo Nacional guilty beyond reasonable doubt of three (3) counts of qualified rape and
sentencing them to death for each offense. The dispositive portion of the assailed Decision
reads as follows:
"WHEREFORE, PREMISES CONSIDERED, this Court finds accused Alfredo Baroy and
Felicisimo Nacional GUILTY beyond reasonable doubt [of] the crime of rape (three
counts) in Crim. Case Nos. 98-355/7 as defined and penalized under Republic Act. 8353
Art. 266-A and Art. 266 B through the use of force[,] threat or intimidation with a deadly
weapon upon the person of Emeliza Bueno with the aggravating circumstances of
nightime and confederation and there being no mitigating circumstances, both accused
are hereby sentenced [for] each count of rape (three counts) the penalty of DEATH by
lethal injection and to suffer the accessory penalties provided by law specifically Art. 40
of the RPC. For the civil liability each accused is hereby further condemned to indemnify
the private complainant the amount of P50,000.00 in each of the three counts of rape in
line with existing jurisprudence; P50,000.00 each for three counts for moral damages
and P50,000.00 each for exemplary damages for each count."2
With the assistance of their counsel de oficio,3 appellants pleaded not guilty during their
arraignment on April 16, 1998.4 In three (3) separate identically worded Informations,5 they were
accused of sexually assaulting Emeliza Bueno allegedly as follows:
"That on or about the 2nd day of March[,] 1998 in the Municipality of Paranaque, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court[,] the above-named
accused ALFREDO GORRE BAROY, conspiring and confederating with accused
FELICISIMO HAMTIG NACIONAL, by means of force and intimidation, with the use of a
chisel, did then and there willfully, unlawfully and feloniously have carnal knowledge of
one Emeliza Bueno, against her will and consent."6
The Facts
Version of the Prosecution

The prosecution's version of the factual antecedents of the case are presented by the Office of
the Solicitor General (OSG) as follows:
"Sometime on March 2, 1998 at around 2:30 in the morning, Emeliza Bueno, a guest
relations officer of Ringo Japanese Karaoke Bar in Pasay Road, Makati, left the place of
her work and proceeded to her home in Camella, Paraaque. While on board a tricycle
along U.N. St., Better Living Subd., two armed men who later on were identified as
appellants Alfredo Baroy and Felicisimo Nacional blocked the path being traversed by
the tricycle. Then, they asked money from the driver and pulled Emeliza out from the
tricycle.
"The tricycle driver however was able to escape but appellants succeeded in taking
Emeliza to a vacant lot. There, Emeliza begged for mercy but her pleas fell on deaf ears.
She struggled to get loose but appellants overpowered her. Baroy took off her pants and
underwear and pointing a chisel towards the victim succeeded in having carnal
knowledge with her while Nacional served as a lookout.
"After Baroy finished raping Emeliza, Nacional took turn in raping her. Afterwards,
Nacional left leaving behind Baroy who raped Emeliza x x x for the second
time.1wphi1.nt
"The tricycle driver Alfredo Vinuya who was able to escape proceeded to the guardhouse
of Better Living Subd. at 1618 Levitown and informed the guards of the incident. Vinuya
was able to convince the security guards to accompany him to the place of the incident
to look for the victim. When they searched the place, one of the security guards noticed
that someone went out of the bushes and there, they saw the victim Emeliza and
appellant Baroy. The guards apprehended Baroy while Vinuya boarded the victim to his
tricycle. Baroy was taken to the Barangay Hall and thereafter to the police station where
the police learned from him the place where Felicisimo Nacional could be
arrested."7 (Citations omitted)
Version of the Defense
On the other hand, appellants give the following account:
"On the part of accused Felicisimo Nacional, it appeared that he was working as a stayin driver of a certain Mr. Vicente Saldana with residence at Betterliving Subdivision. On
the early morning of March 1, 1998, he delivered some garments at Taytay, Rizal and
went back after lunch. At around 1:30 p.m., he drove for Mr. Saldana, who went to
several factories and they returned home at around 10:00 o' clock in the evening. At
around 11:00 p.m., he again drove for Mr. Saldana, who went to his friend in Merville. On
the same night, he had a drinking spree with Alfredo Baroy at a Videoke Bar. He left
earlier, since he had work the next day. He rode in a tricycle to his employer's house,
however, when he arrived the door was already closed. He went to the guard house in
order to sleep there. He was awaken(ed) when someone kicked the folding bed in which
he was sleeping and he was arrested by the police. He was being accused of committing
rape. He denied the charge and stated that the only time he saw the victim was in the
courtroom.
"On the part of accused Afredo Baroy, it appeared that he was working for a certain Atty.
Galicia as caretaker of his chickens. He met the accused Nacional, when the latter went
to their barracks and asked him if he wants to work as a delivery boy. On March 1, 1998
at around 10:00 p.., they had a drinking spree (in) a store at Singapore Street. Nacional
invited him to a nearby farm in order for a drink, however it was already closed, so they
went back to his barracks. While they were walking at around 11:00 p.m. they passed by

a videoke and they had a drinking and singing session. They rode a tricycle and
disembarked at U.N. Avenue where he slept in a nearby store which was already closed.
Nacional left and blocked a passing tricycle. Nacional asked him to guard the driver and
the former pulled down the woman passenger after which he took her to a vacant lot.
While Nacional was pulling the woman towards the vacant lot, Baroy returned to the
store. He heard the woman crying and asking for help, so he went to the place and saw
the woman lying down with her pants pulled down. Nacional had already left. He helped
the woman to put on her pants and asked her what happened, but she could not speak.
He accompanied the woman in waiting for a tricycle in order to take her home. The first
tricycle which passed by did not stopped [sic]. The second one stopped and turned out
to be the tricycle earlier blocked by Nacional. The said tricycle was loaded with barangay
tanods, who thinking that he will escape, started to beat him and apprehended him."8
Ruling of the Trial Court
The RTC gave full credence to the positive and unequivocal testimony of complainant that
appellants had taken turns in raping her. Corroborating her testimony was the tricycle driver,
who said that appellants had forcibly taken her from his vehicle after holding him up. The RTC
found the denial by appellants, who had given conflicting statements regarding their
participation in the crime, "totally bereft of merit, self-serving and not deserving of any
credibility."9
Hence, this automatic review.10
The Issues
In their Brief, appellants submit the following assignment of errors for our consideration:
"I
The court a quo gravely erred in finding the accused-appellants guilty beyond
reasonable doubt of three (3) counts of rape.
"II
The court a quo gravely erred in considering the existence of nightime and confederation
as aggravating circumstances.
"III
The court a quo gravely erred in not appreciating the privilege mitigating circumstance of
minority in favor of accused-appellant Alfredo Baroy."11
The Court's Ruling
The appeal is partly meritorious; the penalty should be reduced to reclusion perpetua.
Main Issue:
Sufficiency of the Prosecution's Evidence
Appellants assert that the evidence presented by the prosecution was insufficient to establish
their guilt beyond reasonable doubt. They point to some alleged flaws and inconsistencies in the
testimonies of the prosecution witnesses, particularly with respect to the exact location of the
scene of the crime and the recovery of the chisel used in its commission. According to them,

highly doubtful is the claim of the victim that she was raped on a vacant lot about 10 "arms
length" away from the place where the tricycle was blocked, because neither the victim nor any
of the accused was supposedly found in that place when the tricycle driver and the security
guards returned there.
Likewise, appellants harp on the supposed contradictory statements of the prosecution
witnesses with regard to where the chisel was actually recovered. They argue that these
inconsistencies and contradictions render the prosecution evidence unreliable and insufficient to
warrant a conviction.
We are not persuaded. We have carefully scrutinized the records of the case. Contrary to the
assertion of appellants, the prosecution was able to establish clearly their acts of rape as well as
their participation in its commission. The alleged inconsistencies on matters relating to where
exactly the rapes were committed and where the chisel was recovered are minor details that do
not form part of the elements of the crime charged. By no means can we disturb the findings
and conclusions of the trial court on the basis of these contentions which do not in any way
contradict or, at the very least, cast serious doubt on the rape charge.
Whether the rapes were committed within the vicinity where the tricycle was stopped or at a
considerable distance therefrom is of no moment in proving the existence of the crime.
Likewise, regardless of whether the chisel was recovered from the crime scene or from
Appellant Baroy does not obscure, much less contravene, the unequivocal and undeniable fact
that appellants had carnal knowledge of the victim against her will by means of force and
intimidation.
Inconsistencies in minor details and collateral matters do not affect the weight, the substance or
the veracity of a witness' testimony as a whole12 with respect to material and important
facts.13 Such inconsistencies even serve to strengthen rather than destroy one's credibility.14
Verily, to be crucial to or determinative of the culpability of the accused, the discrepancies
should touch on significant facts.15 As long as there is consistency in the positive identification of
the accused and in the narration of the principal occurrence, the credibility of a witness is not
impaired.16 And the testimony of the rape victim deserves full faith and credit provided it is plain,
straightforward, to the point, and unflawed by any material or significant inconsistency.17
As can be gleaned from the foregoing testimony, the victim rendered a clear, coherent and
consistent account of the rape incidents and positively identified appellants as the perpetrators.
Indeed, she could not have been motivated by any persuasion other than to prosecute the real
culprits who had violated her. As a rule, a rape victim will not come out in the open if her motive
is not to seek redress and obtain justice.19 Neither would she allow herself to suffer the social
scourge and the psychological stigma of rape if her testimony as to the identities of the
perpetrators are false or fabricated. It is an accepted doctrine that in the absence of improper
motive on the part of the victim of rape to falsely testify against the accused, her testimony
deserves utmost credence.20
On the other hand, appellants present divergent accounts that only reflect the feigned and
perfidious nature of their testimonies. Appellant Nacional denies having had any knowledge of
the circumstances leading to the rape incidents; Appellant Baroy, however, readily admits their
participation therein, pointing to his co-appellant as the one who had raped the victim.
The denials resorted to by appellants are not supported by clear and convincing
evidence.22 Moreover, their discordant and irreconcilable testimonies only indicate a tendency to
prevaricate and a desperate attempt to distort an otherwise unequivocal factual scenario
established by the prosecution. Bare denials by the accused, unsubstantiated by convincing
evidence, are not enough to engender reasonable doubt in the light of sufficiently telling proof of

guilt presented by the prosecution.23 When the latter's evidence convincing connects the crime
and the culprit, the probative value of denial becomes quite negligible.24
It is well-settled that denial, if unsubstantiated by clear and convincing evidence, is a negative
self-serving assertion that deserves no weight in law.25 Between the positive assertions of the
prosecution witnesses and the negative averments of the accused, the former indisputably
deserve more credence and are entitled to greater evidentiary weight.26 Thus, the categorical
statements of the prosecution witnesses must perforce prevail over the bare denials of
appellants.27
Indeed, the Court will not interfere with the judgment of the trial court in passing upon the
credibility of the witnesses or the veracity of their testimonies unless a material fact or
circumstance has been overlooked which, if considered, would affect the outcome of the case.28
Second and Third Issues:
Qualifying and Aggravating Circumstances
The trial court found appellants guilty of three (3) counts of qualified rape with the use of a
deadly weapon as the qualifying circumstance the prescribed penalty for which is reclusion
perpetua to death. In imposing the maximum penalty of death, it considered the aggravating
circumstances of nighttime and confederation. Now appellants question the appreciation of
these circumstances and argue that the imposition of the death penalty was erroneous and
unjustified. We agree.
It is worthy to note that confederation is not enumerated as an aggravating circumstance under
Article 14 of the Revised Penal Code. Like conspiracy which must be alleged in and not merely
inferred from the information, confederation is but a mode of incurring criminal liability and may
not be considered criminal in itself unless specifically provided by law.29 Nether may
confederation be treated as an aggravating circumstance in the absence of any law defining or
classifying it as such.30 Thus, the trial court erred in appreciating it for the purpose of imposing
the maximum penalty.
On the other hand, nighttime is considered an aggravating circumstance only when it is
deliberately sought to prevent the accused from being recognized or to ensure their escape.
There must be proof that this was intentionally sought to ensure the commission of the crime,
and that appellants took advantage of it. In the instant case, there is paucity of evidence that
nighttime was purposely and deliberately sought by appellants.31
The records reveal that they did not utilize the circumstance of nighttime to conceal their
identities, as there was sufficient illumination at the scene of the crime that enabled both the
tricycle driver and the victim to recognize them easily.32 Moreover, the fact that they committed
the crime at nighttime did not at all facilitate it or ensure their escape, considering that they were
immediately apprehended soon after. Clearly then, they did not specifically or purposely seek
the cover of darkness, which was merely incidental, in the advancement of their criminal pursuit.
Nocturnity is not aggravating when, other than the time, there is nothing on record or even in the
testimonies of the witnesses from which it may be inferred that the accused particularly took
advantage of the darkness of the night to facilitate their criminal design.33 Certainly, the mere
fact that the offense was committed at night will not suffice to sustain a finding of nocturnity.34
Where rape is alleged and proven to have been committed with a deadly weapon and by two
persons, it is held to be qualified rape (due to the use of such weapon) with the aggravating
circumstance of superior strength (there being two rapists acting in concert).35 However, like
nighttime and confederation, the use of superior strength was not alleged in the Information.

Under the present Rules,36 aggravating circumstances must be alleged; otherwise, they cannot
be appreciated. Being favorable to the accused, this new procedure may be given retroactive
effect.37
Furthermore, the trial court likewise overlooked the mitigating circumstance of intoxication. A
perusal of the records of the case, as well as the testimonies of the witnesses of both the
prosecution and the defense, shows that appellants were indeed intoxicated when they
committed the crime. Amidst the maze of absurdly disjunctive statements they made, the only
semblance of consistency was in their consumption of several bottle of beer prior to the incident.
While Appellant Baroy38 stated in his testimony that they had drunk about eight (8) bottles of
beer, Appellant Nacional39 admitted to having downed seven (7). Moreover, the tricycle driver
affirmed this fact in his testimony when he said that appellants' eyes were flaring when they
blocked the path of the tricycle.40 Indeed, under normal circumstances, a glass of beer is not so
intoxicating as to diminish a man's rational capacity.41 But in this case, the quantity consumed by
appellants could certainly have affected their capacity to realize or contemplate the
wrongfulness of their actions.1wphi1.nt
Article 15, paragraph 3 of the Revised Penal Code, explicitly provides as follows:
"The intoxication of the offender shall be taken into consideration as a mitigating
circumstance when the offender has committed a felony in a state of intoxication, if the
same is not habitual or subsequent to the plan to commit said felony; but when the
intoxication is habitual or intentional, it shall be considered as an aggravating
circumstance."
Intoxication, according to this article, is mitigating if not habitual or subsequent to the plan to
commit the felony; having been accidental and prior to any criminal resolve, it was more out of
impulse or delusion born of alcohol that the offender committed the crime.42
Drunkenness or intoxication is mitigating if accidental, not habitual or intentional; that is, not
subsequent to the plan to commit the crime.43 To be mitigating, the state of intoxication of the
accused must be proved or established by sufficient evidence.44 But if intoxication is proved,
then in the absence of truth to the contrary, it is presumed to be unintentional or not
habitual.45 In People v. Vega,46 the Court ruled that intoxication was present when the rape was
committed, because the evidence had not established that the drunkenness of the accused was
intentional or habitual.
Hence, this mitigating circumstance should be appreciated where the accused committed the
felony in a state of intoxication, and there was no sufficient proof that it was habitual or
subsequent to the plan to commit the felony.47Furthermore, a finding of this circumstance has
the effect of decreasing the penalty, as long as it meets these twin requiremens.48 This finding
buttresses our opinion that reclusion perpetua, not death, is the proper penalty.
In regard to the minority claimed by Appellant Baroy, an examination of the records of the case
shows that when the presiding judge inquired about his age, he admitted to having been
coached by his mother to lie about it. He testified thus:
"Q
Sa iyong mukha, ang tingin ng husgado ay 20 anyos ka nang mahigit. Ano ba
talaga ang totoo sa kapanganakan mo?
A
Kasi sabi po sa akin ng nanay ko, pag daw may nagtanong sasabihin ko ang
birthday ko ay January 19.
Q

Ano'ng taon iyon?

Hindi ko po alam.

Di ba ang sabi mo ngayong umaga 17 years old ka?

Opo.

Pero doon sa Piskalya sinabi mong 18 years old ka.

Opo.

Bakit ganun' ang sinabi mo doon sa pulis, na 18 years old ka na?

A
Kasi ho noong nakakulong na ako, dinalaw ako ng nanay ko. Tapos sabi sa akin
ng nanay ko pag tinanong daw kung ilang taon na ako ay sasabihin kong 17 years old
ako."49 (Italics ours)
Having been obviously fabricated, minority cannot be appreciated as a mitigating
circumstance.Finally, we take note of the observation of the trial court regarding the
deviousness and the criminal propensity of Appellant Baroy, as well as its recommendation as to
the appropriate penalty to be imposed. We quote from its ruling:
"x x x. One final word on accused Baroy, this Court has observed hundred, nay even
thousands of persons suspected or accused of having committed crimes but never has
anyone made an imprint of deviousness as said accused and if for any reason he is able
to escape the claws of death for his pernicious acts, then the court recommends that he
be not given a day of freedom more than what is necessary to make him pay for his
crime."50
WHEREFORE, the appeal is PARTLY GRANTED; the appealed Decision is
hereby AFFIRMED, with theMODIFICATION that the penalty of death to reclusion perpetua for
each count of rape. The civil awards are alsoAFFIRMED, consistent with prevailing
jurisprudence.51 No pronouncement as to costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GARIO ALBA alias
"MARIO ALBA",Accused-Appellant.
DECISION
QUISUMBING, J.:
Before us is an appeal from a decision 1 dated March 24, 1997, of the Regional Trial
Court, Branch 33, in Dumaguete City, in Criminal Case No. 10632, convicting
appellant Gario Alba alias "Mario Alba" of the crime of murder under Article 248 of
the Revised Penal Code, before its amendment by Republic Act No.
7659.chanrob1es virtua1 1aw 1ibrary
On February 9, 1993, an Information was filed against Alba, charging him with
murder allegedly committed as follows:chanrob1es virtual 1aw library
That at about 5:30 oclock in the afternoon of January 31, 1993, at sitio Pananlayaan, barangay Datagon, municipality of Pamplona, province of Negros Oriental,
Philippines and within the jurisdiction of this Honorable Court, that above-named

accused with intent to kill, treachery and evident premeditation, did then and there
wilfully, unlawfully, and feloniously attack, assault and stab one Ricky Aguilar with
the use of knife with which the accused was then armed and provided thereby
inflicting upon the body of the victim, the hereunder injuries:chanrob1es virtual
1aw library
Stab wound, 2 cm., 6th intercostal space, anterior, axillary line, right
Stab wound, 6 cm., level of the 1st and 2nd lumbar vertebra which injuries caused
the instantaneous death of victim, Ricky Aguilar.
Contrary to Article 248 of the Revised Penal Code. 2
During the arraignment, counsel for appellant manifested that his client was willing
to enter a plea of guilty to the lesser offense of homicide. This was rejected by the
prosecution. Thus, he pleaded not guilty to the offense charged.
Trial thereafter ensued. The prosecution presented as witnesses Dr. Quintin C.
Bascos, senior resident physician of Bais District Hospital; Esterlito Anion, Aguilars
friend; and Roland Ybasan, a pedicab driver; and the victims father, Valentin
Aguilar.
DR. QUINTIN BASCOS testified that he conducted a post-mortem examination on
the body of the victim, Ricky Aguilar. His findings showed that the victim suffered
two (2) stab wounds as follows: stab wound no. 1, which was located in front, right
side, about 15 inches from the top of the right shoulder; and stab wound no. 2,
which was found at the right of his back, 2 inches from the vertebral lumbar.
According to Dr. Bascos, the cause of death of the victim was massive bleeding due
to the injury to the artery supplying the right kidney and the injury of the right lung
causing the lung to collapse as well as the bleeding at the right thoracic region. 3
He testified that these wounds were inflicted by a sharp-bladed instrument. 4
ESTERLITO ANION testified that on January 31, 1993, at about 5:30 in the
afternoon, the victim (Ricky Aguilar) and he were having a drinking spree at
Paterno Flordelizas store located at Pananlaya-an, Datagon, Pamplona, Negros
Oriental. Aguilar ordered a bottle of Aejo rum. They had alternate shots of the rum
from a single glass. According to the witness, when his turn to drink came, he saw
appellant behind Aguilar, and suddenly appellant stabbed Aguilar at the back with a
knife that appellant held by his left hand. He saw the knife pierce the front of the
victims chest. Appellant immediately fled the scene while Roland Ybasan, a pedicab
driver, rushed the victim to the house of Iluminada Manahon. He explained he was
not able to warn Aguilar because he was too stunned, and his first instinct was to
run for cover lest he be the next victim.
ROLAND YBASAN 5 essentially corroborated the testimony of Anion. 6 He testified
that he recognized the appellant as one of the regular passengers in his pedicab. He
recalled that from where he stood, some 5 meters away, he saw appellant stab the
victim once "at the right side of his back and the weapon penetrated the right side
of the front chest." Ybasan touched his back and his front a few inches below the
right nipple, to demonstrate the location of the victims wound. 7
The last witness for the prosecution was VALENTIN AGUILAR, father of the victim,
who testified that he incurred P9,500 for the victims coffin, the wake and the
burial, and other miscellaneous expenses. 8
Appellant Gario Alba, Ricardo Imbo, a laborer; and Wilfredo Jabar Rodriguez, a
barangay councilman, were presented as witnesses for the defense. The defense
version of the incident showed that appellant killed the victim allegedly in selfdefense.chanrob1es virtua1 1aw 1ibrary

Appellant testified 9 that in the morning of January 31, 1993, he was alone, on his
way home via Hacuton, Mamburao, Pamplona, Negros Oriental. He took this route
because the Tanjay River, where he usually passed, was inundated due to heavy
downpour. According to him, he had with him a hunting knife for his protection from
marauders, who frequented the area. He said he did not know that the carrying of
weapons outside residences was prohibited. Upon reaching Pananlaya-an in
Barangay Datagon, at around 3:00 or 4:30 P.M., he took shelter by the side of a
store. There were other people also taking shelter in that area, among them, Ricky
Aguilar. According to appellant, Aguilar approached him and asked, "What is your
purpose in passing here? Are you going to take revenge against me?" Appellant
said in reply that he passed by the place because his usual route was flooded.
Thereupon, according to appellant, Aguilar boxed him in the jaw which caused him
to fall to the ground. As he lay, he saw Aguilar about to pull out a hunting knife, so
he immediately stood up, pulled out his hunting knife, and stabbed Aguilar twice.
RICARDO IMBO, a laborer of Del Prado Ledesma Sugar Plantation, testified to
corroborate appellants story. A resident of Layawan, Tanjay, Negros Oriental, Imbo
testified that at the time of the incident, he was at sitio Pananlaya-an, Datagon, to
look for a pig to buy for his brothers wedding. He left his house after lunch and
arrived at Pananlaya-an at about 3 oclock in the afternoon on January 31, 1993. He
had a snack in a store along the road. Because of the heavy rain, he remained in
the stores waiting shed. He noted other people taking shelter in the shed. He also
noticed appellant Alba, alone on the other side of the road, taking shelter in a
house. He said that Alba was approximately fifty (50) meters away from him. At
around 5:30 P.M., as he was leaving, he saw a stranger box Alba at the base of the
latters right arm. He noticed Alba reel and almost slump on the ground. Alba then
stood up, pulled out a knife, and stabbed the person who boxed him. 10
WILFREDO JABAR RODRIGUEZ, a barangay councilman, testified that appellant Alba
sought his advice about the incident and he told him to surrender. Rodriguez
accompanied Alba to the barangay captain who escorted the appellant to the
authorities. 11
On March 24, 1997, the trial court found appellant guilty, sentencing him as
follows:chanrob1es virtual 1aw library
WHEREFORE, this Court finds the accused GUILTY beyond reasonable doubt of the
offense charged in the information of MURDER, with one (1) mitigating
circumstance of voluntary surrender and the penalty imposable consisting of one
(1) divisible penalty of reclusion temporal and two (2) indivisible penalties, that of
reclusion perpetua to death, the accused is hereby sentenced to a determinate
penalty of RECLUSION PERPETUA; to indemnify the heirs of the victim Ricky Aguilar,
the sum of Fifty Thousand (P50,000.00) Pesos; Thirty Thousand (P30,000.00) Pesos
as moral damages; Twenty Thousand (P20,000.00) Pesos as exemplary damages,
and to suffer the accessory penalties imposed by law.

SO ORDERED. 12
From the above decision, appellant timely appealed. In his brief, he impugns that
decision on the basis of a lone assignment of error, that:chanrob1es virtual 1aw

library
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GARIO ALBA
GUILTY OF MURDER DESPITE CLEAR AND CONVINCING EVIDENCE THAT
TREACHERY WAS NOT PRESENT IN THE COMMISSION OF THE CRIME. 13
Appellant essentially owns up to the killing of the victim but claims that he did so in
self-defense. 14 He says that he stabbed the victim twice when the latter boxed
him. He adds that he was in front of the victim when he stabbed him. According to
appellant, an eye-witness, one Ricardo Imbo, 15 corroborated his testimony.
For the State, the Office of the Solicitor General contends that appellants claim of
self-defense pales against the clear testimony of the prosecution witnesses.
According to the OSG, stealth attended the attack against the victim, Ricky Aguilar.
The OSG concludes that appellants conviction should be affirmed.
To exculpate an accused from any criminal liability on the ground of self-defense,
the burden of proof shifts to the accused. He must prove the following elements of
self-defense by clear and convincing evidence: (1) unlawful aggression on the part
of the victim; (2) reasonable necessity of the means employed to prevent or repel
it; and (3) lack of sufficient provocation on the part of the person defending
himself. 16
After careful consideration of the evidence on record, we are convinced that
unlawful aggression on the part of the victim has not been shown. Appellant failed
to overcome the evidence of the prosecution that appellant stabbed the victim,
Ricky Aguilar, from behind without any provocation at all. His claim that he had a
frontal encounter with the victim was belied by witnesses Anion and Ybasan, who
testified that they saw appellant suddenly stab the victim from behind, with the
knife penetrating from the back to the victims front chest, on the right side. We
note that although Ricardo Imbo, a bystander at the scene of the crime, tried to
corroborate Albas story, the trial court was unimpressed. Instead, the court gave
credence to the testimony of prosecution witnesses Anion and Ybasan. The
assessment of the trial court is generally received with great respect and is
conclusive on appeal, barring any showing of any arbitrariness or oversight of
material facts that could change the result. For it is the trial judge who directly
observed the witnesses on the stand and could detect from their conduct "the
furtive lie that will expose the hidden truth." 17
The trial judge gave little weight to the testimony of Imbo, because it was peppered
with improbabilities and inconsistencies. Imbo could not even tell for sure if
appellant had companions at the time of the incident. As observed by the trial court
with alacrity, Imbo in his first testimony declared that the appellant was alone when
he saw him at the time the incident happened. 18 In the succeeding direct
examination, Imbo changed his account and declared that Alba had companions. 19
But, upon further questioning, Imbo retracted his statement, saying that appellant
had arrived alone walking but was caught in the rain. 20 Equally incredulous was
Imbos testimony that appellant was on the other side of the road, some 50 meters
away 21 from where he was standing, when he saw someone punch appellant at
the base of his right arm. 22 From his vantage point 50 meters away from the
appellant, it is doubtful if he could clearly see the victim hit at the base of his right
arm. Significantly, this version by Imbo runs counter to appellants own testimony
that he was hit at the lower jaw. 23
Imbos declaration that he saw appellant stab the victim on the chest and on the
side 24 is contradicted by the autopsy report revealing two wounds. The autopsy
result revealed one at the back as the entrance wound, and the other in front of the
victims chest as the exit wound, both caused by one knife thrust. The report of Dr.
Bascos did not support the testimony of Imbo that appellant stabbed the victim

twice while face to face, and not from behind.

The trial court gave credence to the testimony of eyewitness Esterlito Anion,
instead. He categorically declared that he saw the appellant stab the victim once
from behind, with the knife piercing "through and through," so that the point of the
knife exited in the frontal area, at the right side of the victim, that is to say, the
chest of the deceased. Anions narration dovetails with the physical evidence
presented and explained by Dr. Bascos who testified that there were two stab
wounds found in the deceaseds body inflicted by a sharp-bladed instrument. 25
One wound is 2 cm. located at the sixth interscostal space, anterior 26 (front),
axillary line, right, which Dr. Bascos explained to be located at the right side of the
victim about 18 inches from the top of the shoulder going downwards. 27 The other
wound is a 6-cm. stab wound found at the first and second lumbar vertebra, which
Dr. Bascos demonstrated to be found at the right of the back about two inches from
the vertebral lumbar. 28 These findings are consistent with the testimony of Anion
that appellant stabbed the victim from behind at the right side, with the knife
piercing "through and through" until the tip of the knife exited in the frontal right
side of the victim. This also explains why the wound at the front (exit wound) is
much smaller (2 cms.) than the entry wound, which is 6 centimeters wide found at
the victims back, corresponding to the bigger blade near the handle of the
knife.chanrob1es virtua1 1aw 1ibrary
That there was stealth in the execution of the attack from behind, not frontally,
appears clear from Anions testimony. This point was corroborated by prosecution
witness, Roland Ybasan, who also witnessed the incident. 29 Anion and Ybasan
had no ulterior motive to implicate appellant, much less to falsely testify against
him. That is why their testimonies were given full faith and credit by the trial court.
Under these circumstances, the claim of self-defense by appellant has no leg to
stand on. Clearly there was no unlawful aggression. Nor was there sufficient
provocation shown on the part of the victim. Appellants attack from behind
succeeded to mortally wound the victim, Ricky Aguilar, who had no weapon to
defend himself nor any one to rush to his aid.
Thus, this Court is in full accord with the conclusion of the trial court that treachery
attended the commission of the crime by appellant. As hereafter explained,
however, in this case such treachery is only an aggravating, and not a qualifying
circumstance.
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 specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. 30 Its essence lies in the adoption of
ways that avoid or neutralize any resistance which may be put up by the offended
party.
Anion and Ybasan testified on how the attack on the victim by appellant
commenced and progressed. The nature and extent of the stab wounds confirm the
treacherous attack on appellant. In People v. Delgado, 31 there was treachery, as
the stabbing was from behind, done in a sudden and unexpected manner while the
deceased was sitting and his head down on his hands. And, in People v. Melgar, 32
alevosia attended the killing where the victim was suddenly and without warning
stabbed at the back of his nape by the assailant from behind with a double-bladed
knife. That treachery qualified the killing in this case is indubitable as the attack
was done from behind and in such manner as to completely surprise the victim and
makes him a defenseless target. 33
We note however, that treachery, though stated in the information, was not alleged
with specificity as qualifying the killing to murder. Sections 8 and 9 of the Revised

Rules of Criminal Procedure which took effect on December 1, 2000,

provide:chanrob1es virtual 1aw library
Sec. 8. Designation of the offense. The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it.
Sec. 9. Cause of the accusation. The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common understanding to
know what offense is being charged as well as it qualifying and aggravating
circumstances and for the court to pronounce judgment.
Pursuant to the aforequoted provisions of the Revised Rules of Criminal Procedure,
the information should state not only the designation of the offense and the acts
and omissions constituting it but shall also specify its qualifying and aggravating
circumstances. Guided by the established rule that when a penal statute, whether
substantive or remedial and procedural, is favorable to the accused, the courts shall
give it a retroactive application. 34 Thus, we held that since the information in this
case failed to specify treachery as a circumstance qualifying the killing to murder,
under the present Revised Rules of Criminal Procedure, treachery has to be
considered a generic aggravating circumstance only.chanrob1es virtua1 1aw 1ibrary
Anent the issue on evident premeditation, we agree with the trial court that such
was not clearly established. There is no sufficient evidence to show (a) the time
when the offender determined to commit the crime, (b) that the culprit had clung to
his determination, and (c) a sufficient interval of time between the determination
and execution of the crime to allow him to reflect upon the consequences of his act.
35 These elements of evident premeditation must be established with equal
certainty and clarity as the criminal act itself before it can be appreciated as a
qualifying circumstance. 36
In sum, the crime committed by appellant is homicide and not murder. The penalty
for homicide under Article 249 37 of the Revised Penal Code is reclusion temporal.
There being one mitigating circumstance of voluntary surrender and one
aggravating circumstance of treachery, the penalty should be imposed in its
medium period. Applying the Indeterminate Sentence Law, appellants sentence
should be within the range of prision mayor as minimum, and reclusion temporal
medium as maximum.
With respect to damages, pursuant to prevailing jurisprudence, the award of moral
damages for P30,000 must be increased to P50,000. The award of P20,000 as
exemplary damages is justified by the presence of an aggravating circumstance.
38
WHEREFORE, the judgment of the trial court is set aside and a new one entered
finding appellant Gario Alba guilty of the crime of homicide, and sentencing him to
suffer the penalty of nine (9) years of prision mayor as minimum and fifteen (15)
years of reclusion temporal medium as maximum, 39 to pay the heirs of the victim
the amount of P50,000 as death indemnity, P50,000 as moral damages and
P20,000 as exemplary damages. Costs de oficio.
SO ORDERED.

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

ORDIALES, Defendant-Appellant.
The Solicitor General for Plaintiff-Appellee.
N. Cruz, Jr., for Defendant-Appellant.
SYLLABUS
1. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; PRESENT IN CASE
AT BAR EVEN WHEN ATTACK WAS FRONTAL. The sudden and unexpected
shooting of the victim with a carbine constituted treachery. Authorities are clear
that even when an attack or aggression is made face to face, treachery or alevosia
is nevertheless present when the attack is sudden and unexpected to the point of
incapacitating the victim to repel or escape it.
2. ID.; AGGRAVATING CIRCUMSTANCES; ABUSE OF SUPERIOR STRENGTH,
ABSORBED IN TREACHERY AND INHERENT IN THE SAME. It is true that the
deceased had two companions while accused-appellant was alone, but superiority in
number does not necessarily mean superiority in strength. These three men were
all seated and unarmed, and their movement was impeded by the table at which
they sat. Their positions even gave accused-appellant more advantage especially

since he carried two firearms, a carbine and a revolver. However, as correctly held
by the lower court, abuse of superior strength is absorbed in treachery and is
inherent in the same.
3. REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY THEREOF GENERALLY
ACCEPTED BY APPELLATE COURTS. The rule is settled in this jurisdiction that
appellate courts seldom disturb a trial courts appreciation of the credibility of
witnesses, in view of its opportunity to observe the demeanor and conduct of the
witnesses while testifying on the witness stand; and that said appreciation of the
court below will generally be accepted and acted upon favorably by the appellate
courts, unless there is a material circumstance which consequently might affect the
result of the case.
4. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; ABUSE OF PUBLIC POSITION
NOT APPRECIATED IN CASE AT BAR. For abuse of public position under Article
14, paragraph 1, Revised Penal Code, to be appreciated, it is not only necessary
that the person committing the crime be a public official; he must also use the
influence, prestige or ascendency which such office gives him as a means by which
he realized his purpose. The essence of the matter is presented in the inquiry, "Did
the accused abuse his office in order to commit the crime?" It is not shown that
accused-appellant took advantage of his position as confidential agent of Mayor
Claudio in shooting the victim, or that he used his influence, prestige or
ascendency" in killing the deceased. Accused-appellant could have shot Bayona
without having occupied the said position. Thus, in the absence of proof that
advantage was taken by accused-appellant of his being a confidential agent, the
aggravating circumstance of abuse of public position could not be properly
appreciated against him.
5. ID.; QUALIFYING CIRCUMSTANCES; EVIDENT PREMEDITATION; ABSENCE OF
DIRECT EVIDENCE OF PLANNING OR PREPARATION NEGATIVES THE SAME. The
aggravating circumstance of evident premeditation has not likewise been proven
beyond reasonable doubt. The mere fact that accused-appellant killed Bayona does
not necessarily prove in itself that the former hatched a plan to kill the latter. As
there was no direct evidence of the planning or preparation, the courts conclusion
may not be endorsed, since it is not enough that premeditation be suspected or
surmised, but the criminal intent must be evidenced by notorious outward acts
evincing the determination to commit the crime.
6. ID.; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE, REQUIREMENTS THEREOF
CITED. As regards the plea of self-defense under Article 11, paragraph 1, of the
Revised Penal Code, the rule is that the same must be proved by clear and
convincing evidence. The three concurring requisites should be present, namely, (a)
(unlawful aggression on the part of the victim; (b) reasonable necessity of the
means employed to repel the aggression; and (c) lack of sufficient provocation on
the part of the accused.
DECISION
REYES, J.B.L., J.:
Direct appeal to this Court in view of the capital punishment imposed against
accused-appellant, Florencio Ordiales, by the Court of First Instance of Rizal, Branch
VII, Pasay City, in its Criminal Case No. 8114-P. The dispositive portion of the said
courts decision follows:jgc:chanrobles.com.ph
"WHEREFORE, this Court after having thus considered very carefully the evidence of

the prosecution and the defense, both testimonial and documentary, and the
exhaustive Memorandum of the Defense, finds accused FLORENCIO ORDIALES
guilty beyond reasonable doubt of the crime of murder, punishable under Art. 248
of the Revised Penal Code, committed with the aggravating and the mitigating
circumstances above mentioned, and hereby sentences him to suffer the penalty of
death in the manner provided by law, to indemnify the heirs of the deceased
Vicente Bayona in the amount of TWELVE THOUSAND PESOS (P12,000.00) and to
pay the costs."cralaw virtua1aw library
The Amended Information charged accused-appellant Florencio Ordiales of the
crime of murder committed as follows:jgc:chanrobles.com.ph
"That on or about the 4th day of November, 1968, in Pasay City, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, Florencio
Ordiales y Abaro, being then a Confidential Agent of the City Mayor, Pasay City, duly
appointed and qualified as such, taking advantage of his public position, with
deliberate intent to kill, and with evident premeditation, and treachery aforethought
suddenly and unexpectedly, did then and there wilfully, unlawfully and feloniously
attack, assault and shoot for several times on the vital parts of the body, unarmed,
Vicente Bayona, with a carbine the herein accused was then provided with, which
treacherous acts, tended to directly and specially insure its execution, without risk
to himself, from the defense that Vicente Bayona may make, thereby inflicting upon
the latter several mortal wounds, which caused his instantaneous death.
That at the time of the commission of this offense the accused-Florencio Ordiales y
Abaro was provided with a motor vehicle, which he took advantage of, to facilitate
his escape from the scene of the crime.
All contrary to law, with qualifying circumstance of alevosia, and the aggravating
circumstances of (1) his public position, (2) evident premeditation, and (3) the use
of a motor vehicle."cralaw virtua1aw library
The evidence for the prosecution shows that on 4 November 1968, at 5:30 in the
afternoon, Vicente Bayona, with two companions, Daniel Brown, Jr., and Rolando
Cruz, were at the airconditioned room of Nads restaurant, Libertad Street, Pasay
City. While they were starting to drink pepsi-cola and gin,Accused-appellant
Florencio Ordiales entered, asking Vicente Bayona, "Sino ba ang minumura mo?"
immediately firing at the latter a U.S. carbine, caliber .30, in rapid succession. The
victim was unable to answer because he was hit. Accused-appellant then put down
his firearm to look at Bayona, after which he left the restaurant and boarded a
yellow jeep parked outside. Two other persons were in the said jeep by the names
of Bayani and Masakay.
Daniel Brown, Jr., ran away after the first shot, while the victims other companion,
Rolando Cruz, was literally frozen with fear in his seat. Vicente Bayona died of
multiple gunshot wounds at 6:10 that same afternoon upon arrival at San Juan de
Dios Hospital, Pasay City. 1 The assailant shot him at a distance of two and a half
(2 1/2) yards, more or less. 2 The slaying is admitted by the accused.
The defenses own version of the incident was that accused-appellant saw Lt. Delfin
Hernandez at the lobby of the Pasay City Hall in the morning of 4 November 1968.
The former asked the latter if he could have his carbine M-1 converted to an
automatic one or M-2. Since the accused-appellant did not have the carbine with
him at the time, they agreed to meet at Nads restaurant at 5:30 that afternoon so
he could deliver the carbine.
At past five of the said afternoon, Accused-appellant went to the Nads restaurant to
keep the appointment. While accused-appellant was looking for a place to sit in the
airconditioned room, Vicente Bayona whistled at him, motioning him to come near.

As soon as accused-appellant approached Bayona, the latter said, "Tell the mayor
that next year he will lose." Accused-appellant answered, "Huwag naman ganon.
Bakit hindi kayo magkasundo. Dati kayo magkasama." Vicente Bayona, however,
shouted, "Bastat sabihin mo talo na siya sa isang taon!" Accused-appellant shouted
back, saying, "Why dont you tell him? You are sending me to tell him!"
Vicente Bayona suddenly stood up with hands on waist and was able to approach
accused-appellant, holding the barrel of the latters carbine. The victims two
companions also rushed at accused-appellant whereupon, the latter stepped
backward and fired at Bayona. The said companions ran away after Bayona was
fired upon.
Accused-appellant left the restaurant after Bayona fell and took a taxi at Taft
Avenue near Pasay Commercial Center with the intention of surrendering to the
mayor. In the corner of Malibay,Accused-appellant met Francisco Villa (who was
going to be appointed Chief of Police of Pasay City later), so he stopped and told
him that he shot somebody and that he was going to surrender. Villa, however,
advised him to surrender instead to the NBI. Accused-appellant, accompanied by
Mr. Villa, then proceeded to Bankal to see NBI agent Mr. Aragon. Mr. Aragon, who
arrived in his house later was told what happened. He, in turn, accompanied
accused-appellant to the NBI where the latter surrendered to one Mr. Bayani with
the carbine used in the shooting.
The Court a quo found the aggravating circumstances of (a) abuse of official
position, (b) evident premeditation, and (c) use of superior force. However, it
considered the use of superior force as absorbed by the qualifying circumstance of
treachery. The said-court also found the mitigating circumstance of voluntary
surrender, offsetting one of the two remaining aggravating circumstances. Hence,
the death penalty was imposed. The use of motor vehicle which was likewise
alleged in the Amended Information was not appreciated by the court a quo for the
reason that the jeep was not used as a means to commit the murder.
The following are assigned as errors in accused-appellants brief: The lower court
erred in
1. Convicting accused-appellant of the crime of murder qualified by treachery;
2. Giving full credence to the testimonies of the witnesses for the prosecution which
are full of serious and material contradictions, inconsistencies and manifestly false
assertions;
3. Sentencing accused-appellant to suffer the penalty of death;
4. Finding that the aggravating circumstances of (1) abuse of official position and
(2) evident premeditation are present in the commission of the offense;
5. Not acquitting accused-appellant of the crime charged on the ground of selfdefense; and
6. Not acquitting accused-appellant on the ground of reasonable doubt.
There is nothing on record to warrant a reversal of the court a quos finding that
treachery attended the killing of the deceased. The sudden and unexpected
shooting of the victim with a carbine constituted treachery. Authorities are clear
that even when an attack or aggression is made face to face, treachery or alevosia
is nevertheless present when the attack is sudden and unexpected to the point of
incapacitating the victim to repel or escape it. 3 Accused-appellants account as to
what precipitated the shooting could not be believed. The Statement, "Tell the
mayor that next year he will lose," or "Basta sabihin mo talo na siya sa isang taon",

could not be attributed to the deceased, who, being an avid campaigner of local
mayoralty candidates, at least from Mayor Cunetas time up to the election of Mayor
Jovito Claudio, certainly could not have ignored that 1969 was not a mayoralty
election year. On the other hand, it is admitted by the prosecution that the
deceased and his twin brother, Reynaldo, had repeatedly slandered the incumbent
mayor, since the latter disregarded the promise to make Reynaldo the chief of his
confidential agents stating that the promise was merely a joke. In fact, on the
afternoon before the shooting and when the brothers met at Shanghai restaurant,
Pasay City, the victim told Reynaldo that he slandered the mayor again because the
mayor refused to sign something which the victim asked him to sign. The version of
the prosecution that it was accused-appellant who first confronted the victim with,
"Sino ba ang minumura mo?" becomes more believably in the light of what
happened, and specially since it is not disputed that accused-appellant was present
at least in one of those occasions when the mayor was slandered. Defense witness
Pedrito Caballes impliedly so admitted by quoting Vicente Bayona as saying to
accused-appellant before he was shot, "huwag mo akong pakialaman." Finally,
prosecution witnesses Daniel Brown, Jr., and Rolando Cruz corroborated each other
in quoting accused-appellant as having said, "Sino ba ang minumura mo?" as
against the lone denial of Accused-Appellant.
It is true that the deceased had two companions while accused-appellant was alone,
but superiority in number does not necessarily mean superiority in strength. 4
These three men were all seated and unarmed, and their movement was impeded
by the table at which they sat. Their positions even gave accused-appellant more
advantage especially since he carried two firearms, a carbine and a revolver.
However, as correctly held by the lower court, abuse of superior strength is
absorbed in treachery and is inherent in the same. 5
It is accused-appellants contention, and error was assigned in this regard, that the
testimonies of the prosecution witnesses should not be given full credence because
of alleged serious and material contradictions, inconsistencies and manifestly false
assertions. Our review of the evidence demonstrates that the contractions were not
on material points. The rule is settled in third jurisdiction that appellate courts
seldom disturb a trial courts appreciation of the credibility of witnesses, in view of
its opportunity to observe the demeanor and conduct of the witnesses while
testifying on the witness stand; and that said appreciation of the court below will
generally be accepted and acted upon favorably by the appellate courts, unless
there is a material circumstance which consequently might affect the result of the
case. 6 As already noted earlier, the exception does not obtain this case, hence, the
finding of treachery is sustained.
We come next to the question of whether the aggravating circumstances of abuse
of public position and evident pre-meditation really attended the commission of the
crime as found by the court a quo. For abuse of public position under Article 14,
paragraph 1, Revised Penal Code, 7 to be appreciated, it is not only necessary that
the person committing the crime be a public official; he must also use the influence,
prestige or ascendency which such office gives him as a means by which he realized
his purpose. The essence of the matter is presented in the inquiry, "Did the accused
abuse his office in order to commit the crime?" 8 It is not shown that accusedappellant took advantage of his position as confidential agent of Mayor Claudio in
shooting the victim, or that he used his "influence, prestige or ascendency" in killing
the deceased. Accused-appellant could have shot by Bayona without having
occupied the said position. Thus, in the absence of proof that advantage was taken
by accused-appellant of his being a confidential agent, the aggravating
circumstance of abuse of public position could not be properly appreciated against
him. The Solicitor General also concedes this. 9 The court a quos finding that the
said aggravating circumstance is present can not, therefore, be sustained.
The aggravating circumstance of evident premeditation has not likewise been

proven beyond reasonable doubt. The mere fact that accused-appellant killed
Bayona does not necessarily prove in itself that the former hatched a plan to kill the
latter. As there was no direct evidence of the planning or preparation, the courts
conclusion may not be endorsed, since it is not enough that premeditation be
suspected or surmised, but the criminal intent must be evidenced by notorious
outward acts evincing the determination to commit the crime. 10 Much less is there
a showing of opportunity for reflection and the persistence in the criminal intent
that characterize the aggravating circumstance of evident premeditation 11 The
court a quo therefore erred in appreciating the said aggravating circumstance
against Accused-Appellant. The Solicitor General likewise concedes this finding. 12
As regards the plea of self-defense under Article 11, paragraph 1, of the Revised
Penal Code, the rule is that the same must be proved by clear and convincing
evidence. 13 The three concurring requisites should be present, namely, (a)
unlawful aggression on the part of the victim; (b) reasonable necessity of the
means employed to repel the aggression; and (c) lack of sufficient provocation on
the part of the accused. 14
We find no proof of unlawful aggression on the part of the victim. He was seated
and unarmed. This Court finds it hard to believe that he suddenly stood up with
hands at his waist, which allegedly led accused-appellant to think that the former
would draw a gun. The victim, fully aware that he was not armed, and knowing that
his adversary carried a carbine, would not bluff at so great a risk. We find it still
harder to believe that the victim arose and approached or rushed at accusedappellant, and suddenly held the barrel of the latters carbine without first being
shot at, for the reasons that (a) a table obstructed his way; 15 (b) accusedappellant was at least 2 1/2 yards away from the victim, 16 which distance could
not have been easily and quickly traversed from where the alleged aggressor was
seated, considering the obstruction; and (c) according to his own version, Accusedappellant already warned that he would shoot if the victim approached him. It
would have been foolhardy and suicidal for the victim to act in the manner that
accused-appellant would like this Court to believe, knowing that the accusedappellant was poised to shoot if the victim should make a move to approach him,
and this holds likewise of the victims companions, who were not themselves
armed. Yet,Accused-appellant would like Us to believe that he shot the victim only
after the latter held the barrel of the gun and only after he had first stepped
backward. The statement of Daniel Brown, Jr., 17 that the victim fell from his seat
to the cement floor like "a burning candle", belies further the claim of accusedappellant that the deceased was shot only after he approached Accused-Appellant.
Under the circumstances, Accused-appellants plea of self-defense can not be
sustained, since he was himself the aggressor.
We are convinced that the guilt of accused-appellant has been proven beyond
reasonable doubt. However. the death penalty should be reduced in the absence of
the aggravating circumstances of abuse of public position and evident
premeditation which were erroneously found by the court a quo.
Under Article 248 of the Revised Penal Code, 18 the penalty for murder is reclusion
temporal in its maximum period to death. There being only one mitigating
circumstance, that of voluntary surrender, and no aggravating circumstance to
offset the same, the imposable penalty is the minimum pursuant to Article 64,
paragraph 2, of the same Code, which is the maximum period of reclusion temporal
under Article 248, supra. The Indeterminate Sentence Law (Act 4103, as amended
by Act 4225) applies in view of the nature of the penalty. Under this law, the
judgment sentencing the accused to a prison term provides for a minimum within
the range of the penalty next lower in degree to be fixed in any of its periods in the
discretion of the court. 19 Under Article 61, paragraph 3, of the Revised Penal Code
when the penalty prescribed for the crime is composed of one or two indivisible
penalties and the maximum period of another divisible penalty, as in this case, the

penalty next lower in degree shall be composed of the medium and minimum
periods of the proper divisible penalty and the maximum of that immediately
following in said respective scale. The penalty next lower in degree in the instant
case therefore ranges from the maximum of prision mayor to the medium degree of
reclusion temporal.
FOR THE FOREGOING REASONS, the decision appealed from is accordingly
modified, sentencing accused-appellant to suffer an imprisonment of 14 years, 8
months and 1 day of reclusion temporal as minimum to 20 years of reclusion
temporal as maximum. Said decision is affirmed in all other respects. Costs
against Appellant.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo,
Villamor and Makasiar,JJ., concur.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ESPERIDION ALEGARBES, JR., defendant-appellant.

YAP, J.:
In a decision dated December 15, 1978, the then Court of First Instance of Lanao del Norte, Branch
III, Iligan City, convicted the accused Esperidion Alegarbes, Jr. for the murder of Arlington Rara and
sentenced him to death, and to pay the heirs of the victim the amount of P12,000.00 by way of
compensation for the death of the victim, and P10,000.00 by way of moral damages.
This case is before us on automatic review on account of the death penalty imposed on the accused.
The prosecution's version is as follows: The crime was committed at about 8:30 o'clock in the
evening of April 23, 1978 right in the poblacion of Bacolod, Lanao del Norte. Earlier that evening, the
victim Arlington Rara was mauled by a group of men led by a certain Gorio Balani. Rara was still
lying in the middle of the road when two soldiers, in the company of some civilians who reported the
incident, arrived. The two soldiers raised Rara up and led him to a store nearby where he could sit.
They investigated Rara about the incident. Rara could not Identify his assailants as he was not a
resident of the place, so the two soldiers decided to bring Rara to their checkpoint to rest.

Before they could take Rara to the checkpoint, the accused Esperidion Alegarbes, Jr., who was then
a soldier connected with the 40th Infantry Battalion and designated as Assistant Chief of the Military
Police assigned in Bacolod, Lanao del Norte, arrived. Alegarbes Jr. started investigating Rara. When
Rara could not Identify the persons who mauled him, being a stranger to the place, Alegarbes
immediately hit Rara with the back of his left hand, causing the latter to fall to the ground. Alegarbes
pulled the victim's hair with his left hand and raised him. Thereafter, Alegarbes fired his revolver at
the side of Rara, but not hitting him, and again asked him for the Identity of the person who mauled
him. When Rara could not name his attackers, Alegarbes took off the victim's belt and whipped him
with it until its buckle was taken off.
Rara knelt before Alegarbes and asked forgiveness. That act apparently angered Alegarbes and he
asked the victim why he should ask for forgiveness from him when he was not God and he was not
the one who mauled him. Immediately after saying this to the victim who was still kneeling before
him, Alegarbes Pulled his hair with his left hand and simultaneously drew his revolver with his right
hand and shot the victim pointblank, hitting him on the neck. The victim fell down, sitting on the
ground, with head bent downward.
One of the soldiers present approached the victim and verified where he was hit. Alegarbes must
have come to his senses, for he ordered those present to take Rara to a doctor. Rara was already
hovering between life and death when he was brought to the clinic of Dr. Daranan, where he died
shortly thereafter despite efforts to save his life.
The victim's cadaver was brought to the Municipal Auditorium where it was autopsied by Dr.
Guillermo Layos, the Municipal Health Officer of Bacolod, Lanao del Norte. The doctor issued a postmortem report 1 wherein he stated the following findings:
1. Wound bullet about 1/3 cm. diameter, edge inward, over the anterior aspect neck,
about 1 cm. below the adam's apple, on probing it is directed slightly posteriosly
upward.
2. Powder burns over the exterior aspect of neck.
According to the doctor, who testified at the trial, the presence of powder burns on the neck of the
victim showed that the gun was fired only about one (1) foot away by his assailant.
The version of the defense was as follows: At 9:00 o'clock in the evening of April 23, 1978, he was
on patrol in the market place of the poblacion of Bacolod, Lanao del Norte. When he was at the
checkpoint, a civilian reported that a person was being mauled by a group of men. When the
accused was told that a person was lying on the road, he got his service rifle (Armalite) and
proceeded to the place. He was also armed with a hand grenade. He had no other firearm When he
was on his way to the place where the person was allegedly mauled, the accused heard a shot. By
experience, he knew that the shot was from a.22 caliber firearm. When he arrived at the place, he
was informed that five persons participated in the mauling. Then, a person passed at his back and
tried to assault him, so he blocked him with his Armalite and fired a warning shot upward. Another
civilian told appellant that his warning shot hit somebody and he answered that it was impossible for
him to hit anybody because he fired his shot upward with his Armalite. The accused then inspected
the victim and when he saw the wound in the neck, he ordered that the victim be brought to the
clinic.
From the evidence adduced by the prosecution and the defense, the court a quo made the following
findings: In the evening of April 23, 1978 at around 7:00 o'clock, the victim Arlington Rara, was seen
lying unconscious on the road at the poblacion of Bacolod near the house of Pablita Mejorada who
informed the persons in the store of Martin Pumicpic, who was her neighbor, about the man lying on
the road. Two persons, namely, Damian Argao and Andres Pumicpic, who were then in the store
went to the MP Detachment which was around 100 meters away to inform the soldiers of the
presence of a man lying on the road. Two soldiers from the detachment responded and went to the
place where the man was lying unconscious on the road and brought him to the premises of the

store of Martin Pumicpic. They tried to find out from the victim who were responsible for mauling him.
He answered them that he did not know. The two army men were about to bring him to the MP
Checkpoint when the accused, Esperidion Alegarbes, Jr. arrived at the scene. The accused was
wearing short pants and a white T-shirt. Alegarbes proceeded to investigate the victim Rara as to
who mauled him. Rara could not give the Identity of the person who mauled him. After repeated
questioning by Alegarbes and the same answer was given by Rara that he did not know who mauled
him, the former struck the latter with the back of his left hand, causing the latter to fall on the ground.
Alegarbes then followed this by pulling the victim's hair up, and, taking his revolver from his waist, he
fired toward the side of the victim but not hitting him. Still not getting an answer from the victim as to
who mauled him, Alegarbes then got hold of the belt of the victim and whipped him 5 times at the
back. The victim knelt before the accused and asked forgiveness. Alegarbes answered, "Why should
you ask forgiveness from me when I am not God and I was not the one who mauled you?" Then he
pulled up Rara by the hair and while doing so, he again took his revolver from his waist and shot
Rara hitting him on the neck, below the Adam's apple.
The trial court did not give credence to the accuser's defense that the victim tried to assault him,
firstly because the victim was already groggy after having been mauled by unknown persons.
Secondly, the three prosecution's eyewitnesses, namely, Damian Argao, Andres Pumicpic and Rey
Salvacion, belied the claim of the accused that the victim tried to assault him.
Appellant's assigned errors are as follows:
1. Lower court erreed in holding the accused responsible for the death of Arlington Rara, and in
convicting the accused of the crime of murder;
2. That, assuming the accused to be responsible for the death of Arlington Rara, the lower court
erred in considering against the accused the qualifying circumstance of treachery;
3. That, assuming the accused to be responsible for the death of Arlington Rara, the lower court
erred in considering against the accused the ordinary aggravating circumstances of abuse of public
position and cruelty;
4. That, assuming the accused to be responsible for the death of Arlington Rara, the lower court
erred in not considering in favor of the accused the mitigating circumstances of lack of intention to
commit so grave a wrong as that committed and voluntary surrender.
We find no merit in appellant's assignments of error.
The court's finding that the killing of the victim by the appellant was deliberate, intentional, cruel and
treacherous is supported by the testimonies of Damian Argao, Andres Pumicpic and Rey Salvacion,
who were eyewitnesses to the incident. None of the three had reason to testify falsely against the
appellant. The trial court believed the testimonies of these three witnesses, and we have no reason
to disturb its findings.
On the other hand, appellant's version was not corroborated. No witnesses, including his soldier
companions, testified for him.
It could not be true, as alleged by appellant, that he heard a shot when he was on his way to the
checkpoint. His version made it appear that the victim was already shot at the time he arrived on the
scene. But, according to the appellant, when he arrived at the scene, someone tried to attack him
from behind and he fired a warning shot upwards with his Armalite, which probably hit the victim. The
appellant's version is inconsistent. Besides, appellant's uncorroborated version cannot prevail over
the testimonies of three eyewitnesses who narrated the true version of the incident.
Treachery was present in the killing, because the victim was not in a position to defend himself when
he was unexpectedly shot by the accused. Unarmed, he was a helpless victim of the senseless
assault by the accused.

The trial court likewise did not err in considering both aggravating circumstances of abuse of public
position and cruelty. Appellant undoubtedly took advantage of his public position as a soldier, when
he maltreated and killed a civilian victim of mauling, whom he was supposed to protect in the
performance of his duties.
The cruelty inflicted on the victim before the accused shot him, boxing him, belting him with his (the
victim's) own belt, threatening him by firing his pistol in the air, is abundantly clear. The victim was
kneeling and helpless, and yet the appellant with abuse of superior strength, consciously and
deliberately did everything to torture and intimidate him. His actuations showed the appellant to be
heartless and without mercy. He knew that the deceased was not the aggressor, but was the victim
of a physical assault by unknown persons, and yet for the flimsy reason that the victim could not
Identify those who mauled him, appellant decided to turn his inexplicable ire on him.
The mitigating circumstance of voluntary surrender cannot be considered in his favor, because it is
not shown that there was a spontaneous acknowledgment by the accused of his guilt, or that he
wished to save the authorities from the trouble and expense incurred in his capture. In the case at
bar, appellant did not actually surrender to the police; what he did was merely to inform the police
headquarters about the incident. In fact, appellant tried to mislead the authorities by claiming that he
was not the one who shot the victim.
We find no reversible errors committed by the trial court in finding the accused guilty of the offense
charged beyond reasonable doubt.
Accordingly, the decision appealed from is hereby affirmed, with the modification that the penalty
imposed isreclusion perpetua, instead of death, in view of the provisions of the 1987 Constitution,
and the indemnity is increased to P30,000.00. No costs.
SO ORDERED.

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

MAGDUEO, Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Donato T. Faylona for Accused-Appellant.

SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ALIBI; CANNOT
PREVAIL OVER THE POSITIVE IDENTIFICATION OF ACCUSED. In the light of the
positive identification of the appellant as the perpetrator of the crime, his defense
of alibi necessarily falls. His assertion that on the day of the incident, he was at the
house of Leonardo Senas in Plaridel, Aborlan, Palawan deserves no credit. The
appellant has not shown that it was impossible for him to have been at the place of
the incident at the crime was committed. Moreover, as the lower court observed a
bus ride from Aborlan, Palawan, would take only a little more than two hours to the
city.
2. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; TREACHERY; PRESENT IN THE
CASE AT BAR. Treachery in the commission of the crime is clearly established by
the record. The appellant fired two successive shots at the defenseless Fiscal Dilig
while the latter was still seated in his jeep, hitting him at the neck and lumber
region. According to Dr. Rufino P. Yuson, who performed the autopsy on the victim,
both wounds were fatal and that "death will definitely occur." Immediately after the
shooting, the appellant fled still holding his firearm. The manner of the executive
was such that the appellant deliberately and consciously adopted means and ways
of committing the crime and insured its execution without risk to himself arising
from any defense Fiscal Dilig might make. The two conditions necessary for
treachery to exist are present (People v. Macariola, 120 SCRA 92; People v. Rhoda,
122 SCRA 909; People v. Mahusay, 138 SCRA 452; and People v. Radomes, 141
SCRA 548).
3. ID.; ID.; ID.; PRESENCE THEREOF QUALIFIES CRIME TO MURDER. The fact
that the appellant called out, "Fiscal" before shooting the victim does not negate
the presence of treachery in the commission of the crime. Since the appellant was a
hired killer, he wanted to insure that he was shooting the correct person. When Dilig
turned his face to find out who was calling him, the appellant fired immediately
rendering no opportunity for Dilig to defend himself. The attendant circumstance of
treachery qualifies the crime to murder. The first assigned error is without merit.
4. ID.; ID.; INSULT TO PUBLIC AUTHORITY; NOT APPLICABLE WHEN COMMITTED
AGAINST PUBLIC AUTHORITY HIMSELF. The aggravating circumstance of
commission of a crime with insult to public authority does not seem to be borne by
the records. For this aggravating circumstance to be considered it must not only be
shown that the crime was committed in the presence of the public authority but
also that the crime was not committed against the public authority himself. (U.S. v.
Rodriguez, 19 Phil. 150; People v. Rizal, 103 SCRA 282). In the instant case Fiscal
Dilig, the public authority involved in the crime, was the victim. Hence, the lower
court, erred in including commission of the crime with insult to public authority as
an aggravating circumstance.
DECISION
PER CURIAM:
Before us for automatic review is the decision of the Regional Trial Court of Palawan
and Puerto Princesa City finding accused-appellant Hermogenes Magdueo guilty
beyond reasonable doubt of the crime of Murder qualified by treachery and evident
premeditation and aggravated by price or reward and by the crime being committed
in contempt of/or with insult to public authority. The court sentenced Magdueo to
suffer the penalty of DEATH with all the accessory penalties provided by law and to

pay the costs; and to indemnify the heirs of the victim, Fernando M. Dilig in the
sum of P130,000.00 as actual damages and P20,000,00 as moral damages.
The amended information charged Hermogenes Magdueo, Apolinario Sison,
Teodorico Ramirez, Alejandro Guevarra, Alfredo Guevarra, and Edgardo Casabay
with having committed the crime of murder as follows:jgc:chanrobles.com.ph
"That on or about the 15th day of October, 1980, and for sometime prior and
subsequent thereto, in the City of Puerto Princesa, Philippines and in Aborlan,
Province of Palawan and within the jurisdiction of this Honorable Court, the said
accused, conspiring and confederating together and mutually helping one another,
did then and there wilfully, unlawfully and feloniously have in their possession,
custody and control a firearm to wit: one (1) 9MM automatic pistol, without having
secured the necessary license and or permit to possess the same from the proper
authorities; that at the aforementioned time and place while the said accused were
in possession of the afore-described firearm, conspiring and confederating together
and mutually helping one another, with treachery and evident premeditation, with
intent to kill and while armed with said firearm, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot one FERNANDO M. DILIG, City
Fiscal of Puerto Princesa City, thereby inflicting upon the latter mortal wounds which
were the direct and immediate cause of his death, to the damage and prejudice of
his death, (sic) to the damage and prejudice of his heirs in the amount of TWO
HUNDRED FIFTY THOUSAND (P250,000.00) PESOS, Philippine Currency.
"CONTRARY TO LAW and committed with the aggravating circumstance of
treachery, evident premeditation that the crime was committed in consideration of a
price, reward or promise; and that the crime was committed in contempt of or with
insult to public authorities."cralaw virtua1aw library
The facts established by the prosecution and accepted by the lower court as basis
for the decision are summarized as follows:chanrobles.com.ph : virtual law library
"On October 15, 1980, a few minutes past 8:00 oclock in the morning, as soon as
the late Fiscal Fernando M. Dilig had placed himself at the drivers seat inside his
jeep parked near his house at the corner Roxas and D. Mendoza Streets, Puerto
Princesa City, all of a sudden, two successive gunshots `burst into the air, as the
gunman coming from his left side aimed and poured said shots into his body,
inflicting two fatal wounds (Exhibit N) that instantaneously caused his death. The
autopsy report of Dr. Rufino P. Yuzon, Puerto Princesa City Health Officer, described
the wounds as follows:jgc:chanrobles.com.ph
"1. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by contusion
collar, 0.3 cm. in width almost evenly distributed around the gunshot wound,
located at the lateral aspect, neck, left, lower portion, directed medially, slightly
anteriorly, and upwards penetrating the subcutaneous tissues and muscles,
involving the left lateral portion of the esophagus, then the right lateral portion of
the hyroid bone, the right common Carotid Artery, the right jugular vein, and
piercing the sterno-cleido Mastoid Muscle, then making a wound (exit), 1.3 cm.
located at the lateral aspect, neck, right, about 1 1/2 inches below the angle of the
mandible.
"2. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by Contusion
Collar, 0.3 cm. in width almost evenly distributed around the gunshot wound,
located at the lumbar region, left about 2 inches posteriorly from the Mid-axillary
line directed medially, slight anteriorly and slightly upwards penetrating the subcutaneous tissues and muscles, then to the abdominal cavity and involving the
upper portion of the descending colon, and the two loops of small intestines, then
piercing the right abdominal muscles, making a wound, (exit), 1.5 cm. located at
the lumbar region, right, about 1 1/2 inches anterior to the mid-axillary line, right.

"Three witnesses positively identified the assailant as accused Hermogenes

Magdueo: (1) Elena Adion Lim, while sitted (sic) at the gate of her fence, about 20
to 30 meters away from the house of Fiscal Dilig, saw the gunman coming from
where she heard two successive shots when he passed by her house, bringing a
short gun in his right hand and a clutch bag while hurriedly proceeding towards
Liwanag Street. On October 30, 1980, she identified accused Magdueo as the man
she saw that early morning of October 15, 1980; (2) Ernesto Mari Y Gonzales, a
security guard of the Malaria Eradication Service, this City, while on board a
tricycle, passing in front of the house of Fiscal Dilig on his way home, likewise heard
the two gunshots coming from the direction of Fiscal Diligs house, prompting him
to order the driver to stop. He described the gunman as wearing a white polo shirt,
blue pants and a hat, still holding the gun pointed at Fiscal Dilig. When the gunman
turned to his left side, Mari saw a scar on his left temple below his left eyebrow.
The man was still holding the gun in his right hand while walking in a limping
manner towards Mendoza Street. On the witness chamber, he positively identified
accused Hermogenes Magdueo as the gunman; (3) Cynthia Canto, a taxi dancer,
residing at Jose Abad Santos, this City, while in front of the store of Aling Charing
near the house of Fiscal Dilig, waiting for a tricycle, saw the gunman standing by for
a quite time, then went nearer Fiscal Dilig who was then sitted (sic) on the drivers
seat of his jeep and fired two successive shots to the latter, exiting towards
Mendoza Street. She could not be mistaken that accused Hermogenes Magdueo
was the gunman and when she came face to face with him at the invitation of the
police in Plaridel, Aborlan, Palawan, the readily identified Magdueo as the killer.
Magdueo also executed an extra-judicial confession wherein he admitted that he
killed Fiscal Dilig for a price or reward and implicated Leonardo Senas and Mauricio
de Leon to the commission of the crime. However, both Senas and de Leon were
later dropped from the amended information for lack of a prima facie case against
them.
All the other accused were acquitted for insufficiency of evidence.
Gloria S. Dilig, the widow of the victim was presented as witness to prove the civil
aspects of the case. She testified on the actual damages the family incurred and the
moral damages she suffered as a result of the death of Fiscal
Dilig.chanroblesvirtualawlibrary
The dispositive portion of the trial courts decision states:jgc:chanrobles.com.ph
"WHEREFORE, judgment is hereby rendered finding:jgc:chanrobles.com.ph
"1) Accused Hermogenes Magdueo guilty beyond reasonable doubt of the crime of
murder qualified by treachery and evident premeditation and aggravated by price or
reward and that the crime was committed in contempt of/or with insult of public
authority, and hereby sentences him to suffer the SUPREME PENALTY OF DEATH,
with all the accessory penalties provided for by law, and to pay the costs. He is
likewise ordered to indemnify the heirs of the late Fernando M. Dilig in the sum of
P130,000.00, as actual damages and P20,000.00, as moral damages.
"2) Accused Alejandro Guevarra, Teodorico Ramirez, Jr., Edgardo Caabay, Apolinario
Sison and Abredo Guevarra, not guilty of the crime of murder and hereby acquits
them of the charge against them. The bailbond posted for the provisional liberty of
accused Alejandro Guevarra, Teodorico Ramirez, Jr., Edgardo Caabay and Alfredo
Guevarra is hereby ordered cancelled and the immediate release of accused
Apolinario Sison is likewise ordered unless held for any other cause."cralaw
virtua1aw library
The appellant assigns the following errors allegedly committed by the lower

court:chanrob1es virtual 1aw library

I THE COURT A QUO ERRED IN CONVICTING THE ACCUSED FOR MURDER.
II THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE ACCUSEDS EXTRAJUDICIAL CONFESSION.
We are convinced from the records that the appellant was the assailant of the late
Fiscal Fernando Dilig. The lower court did not err as alleged.
The appellant was a stranger in the town and was not known by the three
eyewitnesses before the incident. However, he was readily and positively identified
by the three eyewitnesses upon confrontation. They could not have mistaken the
appellants identity because they had a clear view of him at the time and the
incident happened in broad daylight. Any doubt of his identity is erased by the
testimony of Ernesto Mari Gonzales, one of the eyewitnesses, to the effect that the
man he saw pointing a gun to the late Fiscal Dilig had a scar on his left temple
below his left eyebrow. The appellant, as observed by the lower court, has a scar
below his left eye and above the left eye at the eyebrow in the shape of a letter "J"
and at the end of the left eye somewhat shaped like the letter "V", perpendicular to
the eyebrow.
The defense failed to show any motive on the part of these eyewitnesses to falsely
accuse the appellant as having committed the crime. The appellants accusation
that Cynthia Canto, one of the eyewitnesses testified against him "to claim a
reward" is not supported by any evidence on record.
In the light of the positive identification of the appellant as the perpetrator of the
crime, his defense of alibi necessarily falls. His assertion that on the day of the
incident, he was at the house of Leonardo Senas in Plaridel, Aborlan, Palawan
deserves no credit. The appellant has not shown that it was impossible for him to
have been at the place of the incident at the time the crime was committed.
Moreover, as the lower court observed a bus ride from Aborlan, Palawan, would take
only a little more than two hours to the city.
Treachery in the commission of the crime is clearly established by the record.
The appellant fired two successive shots at the defenseless Fiscal Dilig while the
latter was still seated in his jeep, hitting him at the neck and lumbar region.
According to Dr. Rufino P. Yuzon, who performed the autopsy, on the victim; both
wounds were fatal and that "death will definitely occur." Immediately after the
shooting, the appellant fled still holding his firearm.chanrobles virtual lawlibrary
The manner of the execution was such that the appellant deliberately and
consciously adopted means and ways of committing the crime and insured its
execution without risk to himself arising from any defense Fiscal Dilig might make.
The two conditions necessary for treachery to exist are present (People v,
Macariola, 120 SCRA 92; People v. Rhoda, 122 SCRA 909; People v. Mahusay, 138
SCRA 452; and People v. Radomes, 141 SCRA 548).
The fact that the appellant called out, "Fiscal" before shooting the victim does not
negate the presence of treachery in the commission of the crime. Since the
appellant was a hired killer, he wanted to insure that he was shooting the correct
person. When Dilig turned his face to find out who was calling him, the appellant
fired immediately rendering no opportunity for Dilig to defend himself.
The attendant circumstance of treachery qualifies the crime to murder. The first
assigned error is without merit.

The second assignment of error questions the trial courts finding that the extrajudicial confession was admissible.
The lower court quoted Section 20, Article IV of the Bill of Rights and took pains to
explain why there was compliance with its mandate. The court commented on the
imbalance present during custodial interrogations, the strange and unfamiliar
surroundings where seasoned and well-trained investigators do their work, and then
rejected the appellants allegations that it was extracted through violence and
torture.
The trial court stated:jgc:chanrobles.com.ph
"But a cursory evaluation of the evidence shows that accused Magdueo was
properly informed of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him. He was allowed to
communicate with, and was even given, a lawyer in the person of Atty. Clarito A.
Demaala, Jr. of the CLAO in this City. As certified to by Atty. Demaala, Jr., he
assisted and was present when the accused was placed under custodial
investigation. Even before it started, Atty. Demaala interviewed the accused and
informed him of his constitutional rights. NBI Officer-in-Charge Celso A. Castillo,
affirmed this particular fact. He was allowed to converse with his counsel in his cell
and the statement thus obtained from him, signed and subscribed by him as true,
whether inculpatory or exculpatory, in whole and in part, shall be, as it is hereby,
considered admissible in evidence. (Morales, Et. Al. v. Ponce Enrile, Et. Al. L-61016;
Moncupa, Jr. v. Ponce Enrile, Et. Al. L-61107, April 26, 1983.) It is presumed
voluntary and no contrary evidence was shown. (People v. Dorado, L-23464, 36
SCRA 452). There is spontaneity and voluntariness in his extra-judicial confession
which contains details that cannot be furnished by the investigators on how the
killing was planned, the reward to be received and the scenario of the killing.
(People v. Opiniano, 22 SCRA 177). Furthermore, it was corroborated by other
evidence which recites the true sequence of events. (People v. Pontanosa, 20 SCRA
249).
"With the admission of, and conformably to what the accused Hermogenes
Magdueo alleged in, his extra-judicial confession, the court finds that accused
Magdueo was hired by a mysterious mastermind with whose representative he
agreed to kill Fiscal Dilig for a fee of P80,000.00, of which he will receive a clean bill
of P30,000.00. Sometime during the last week of September, 1980, at his residence
in Divisoria, Metro Manila, he agreed to the proposition. The representative of the
mastermind, Leonardo Senas, gave him the advance payment of P5,000.00, with
the balance of P25,000.00 to be paid after he accomplished the mission. As to the
gun he used, it was a 9mm. automatic revolver. This confirms the finding of the
NBI. . . ."cralaw virtua1aw library
The records show that the CLAO lawyer, Atty. Clarito Demaala, entered his
appearance as counsel for the accused during the interrogation and was present
from the start of the investigation until it was finished.
The evidence showing that the appellant was a contract or hired killer especially
contacted in Manila to do a job in Puerto Princesa is strengthened by testimony.
Magdueo himself testified that he was formerly an inmate of Muntinlupa who was
later transferred to Sta. Lucia Sub-Colony and released in 1973. He stated that
after his release, he lived with relatives in Divisoria and worked with an aunt as
sidewalk vendor. He explained his presence in Palawan on the day of the killing by
claiming that sometime in 1979 Leonardo Senas accidentally passed by their place
in Tabora and suggested that the appellant bring assorted merchandize to Aborlan,
Palawan where Senas resides. He, therefore, left for Palawan on board the M/V
Leon on September 28, 1980 (or shortly before the killing) and visited Mauricio de

Leon at Quito, Puerto Princesa, saw head-nurse Mrs. Fernandez at Sta. Lucia, spent
a night with a Mr. Obid at the Inagawan Sub-Colony and proceeded to Aborlan,
Palawan He claims that at the time of the shooting, he was in the house of Senas in
Aborlan and learned only from the radio about the killing of Fiscal Dilig.
One of the prosecution witnesses, Andres Factora, testified that he was formerly an
inmate in Muntinlupa since October 26, 1955 and that while serving a sentence for
triple death penalty, he met Magdueo, a leader of the Sputnik Gang, also on death
row. Magdueo was nicknamed "Mande" and served as an attendant in the prison
hospital. Factora stated that Magdueo was known as a TIRADOR or killer while in
prison. He further testified that while he was in Sta. Lucia Sub-Colony in 1980, he
saw Magdueo on October 12 or 13 at the gate of Palawan Apitong. The reason
given by the appellant for his being there was that he was in the business of bangus
fry.chanrobles virtual lawlibrary
There is plenty of other testimony about the participation of the appellant and the
other accused and the defenses they presented. The trial court summarized in its
decision the testimonies of sixteen (16) prosecution witnesses and twenty-one (21)
witnesses for the defense.
We have carefully examined the records and considering the testimony of the three
eyewitnesses to the shooting, their positive and categorical identification of the
appellant as the assailant, the corroborative evidence on the circumstances of the
killing, and the more than coincidental presence of Magdueo in Palawan when he
should have been in Manila, we see no error in the lower courts finding that the
appellant committed the crime of murder qualified by treachery and evident
premeditation and aggravated by price and reward. Magdueo, in effect, also
admitted that he was a recidivist at the tune of his trial. However, recidivism was
not alleged in the information and makes no difference in the determination of the
penalty in this case.
However, the aggravating circumstance of commission of a crime with insult to
public authority does not seem to be borne by the records. For this aggravating
circumstance to be considered it must not only be shown that the crime was
committed in the presence of the public authority but also that the crime was not
committed against the public authority himself. (U.S. v. Rodriguez, 19 Phil. 150;
People v. Rizal, 103 SCRA 282). In the instant case Fiscal Dilig, the public authority
involved in the crime, was the victim. Hence, the lower court, erred in including
commission of the crime with insult to public authority as an aggravating
circumstance.
Considering the presence of an aggravating circumstance and the absence of any
mitigating circumstance attending the offense, the lower court imposed the proper
penalty on the appellant. The crime in this case is a particularly heinous one. The
appellant is shown by the records as a heartless contract killer. Upon being paid for
a job, he had no compunctions about traveling all the way to Palawan from Manila,
stalking and liquidating an unwary victim whose only fault was to perform his duties
faithfully.
WHEREFORE, the lower courts judgment is hereby AFFIRMED.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ERNESTO GA Y
ESPLANADA, ALFREDO ENDENCIO Y SALVADOR and REYNALDO RUGA Y
RESURRECCION alias REYNALDO BUSTAMANTE Y MUTAS, Defendants.
ERNESTO GA Y ESPLANADA, Defendant-Appellant.
DECISION

GANCAYCO, J.:
This case involves the dastardly killing of an old couple in Forbes Park and their
house mate and serious injury to a daughter in the course of a robbery of a
wristwatch worth P100.00 and a transistor radio worth P60.00. It reached this Court
on mandatory review of the judgment promulgated on 10 August 1977 by the
Circuit Criminal Court of the Seventh Judicial District, Pasig, 1 convicting the
accused of the crime of Robbery with Triple Homicide and Frustrated Homicide and
imposing the penalties of three death sentences for each of the accused.
In a Resolution dated 27 August 1987 this Court en banc directed that all pending
death penalty cases be remanded for adjudication to the respective division of the
Court to which the member to whom they have been preliminarily assigned for
reporting purposes pertains, considering that under Section 1 9(1), Article III of the
Constitution, any death penalty already imposed shall be reduced to reclusion
perpetua. 2 On 21 April 1988 the Clerk of Court notified the accused in this case
and gave them 30 days within which to file a written statement personally signed
by them with the assistance of counsel or in the presence of prison authorities on
whether or not they wished to continue with the case as an appealed case, with the
caveat that failure to do so will cause the dismissal of the case which shall
thereafter be remanded to the trial court for execution of judgment. 3
Accused Alfredo Endencio and Reynaldo Ruga complied and in a letter received by
the Court on 18 May 1988 manifested that they were willing to accept the sentence
of reclusion perpetua. 4 In a Resolution dated 1 June 1988 the First Division of this
Court noted the manifestation of the two accused and remanded the case to the
lower court for execution of judgment as to them, while the appeal of Ernesto Ga
continued. 5
Appellant Ga does not dispute the findings of fact of the trial court. In his appeal,
appellant questions only the application of certain aggravating circumstances and
the exclusion of some mitigating circumstances by the court a quo, which found the
facts attendant to the commission of the crime charged as
follows:jgc:chanrobles.com.ph
". . . That at about 8:00 A.M. of July 29,1977, the above-named accused met at the
residence of Reynaldo Ruga at Project 7, Quezon City, and planned to buy a
motorcycle to rob the residence of the Gonzaga family. That they borrowed a
travelling bag from a friend of Ruga, and they proceeded to Cubao, where Ernesto
Ga withdrew from the Savings Bank of Manila, Cubao Branch, the sum of P55.00
out of his savings deposit, and they bought a kitchen knife and a dagger (Exhs. Y
and Z). Then, the three went to the Ocean Theater, and inside said theater, they
planned to rob the said residence, wherein they planned to hogtie all the occupants
and would kill who ever (sic) will stop them. At about 7:30 in the evening of July
29, 1977, the three accused went out of the movie house and bought a bottle of
White Castle whiskey; boarded a taxi and proceeded to the residence of the
Gonzaga family in Forbes Park, where they invited Bonifacio Marteja, Andres Larion
and Francisco Melorin to a drinking spree in the servants quarters of the Gonzaga
residence. While in that quarter (sic), Ruga brought [out] another bottle of liquor,
this time, gin, and they continued drinking up to midnight of July 29. At this time,
Andres Larion, who was heavily drunk already became unruly and boisterous. At
this juncture, Endencio kicked the feet of Ga making a sign of their plan,
simultaneously stood up, pulled out the kitchen knife from the bag, and stated,
"hold-up ito" (sic). Alfredo Endencio took some pieces of cord and torn clothes and
hog-tied Larion, Marteja and Melorin, and the accused went out to proceed to the
main door of the entrance of said residence. Due to their failure to open the
entrance, they went back to the servants quarters and took Bonifacio Marteja with
them to lead them in entering inside (sic) the Gonzaga residence. Inside the
servants quarters, they saw Larion being unruly and scandalous, and fearing that

neighbors would hear them, they gagged him, and then, Endencio kicked Larion on
him body, and when Ernesto Ga saw blood coming out from (sic) the mouth of
Andres Larion, he stabbed Larion on his stomach with the use of the dagger (Exh.
Z) which they bought from Farmers Market. Endencio got the key from Marteja and
he managed to enter inside (sic) the residence thru the back door. Later on, the
three accused, together with Bonifacio Marteja, who was still hog-tied, entered the
room of Ester Gonzaga, but upon seeing that she is [a] cripple, they did not harm
her. Then, they entered the masters bedroom, leaving Ruga behind to guard Ester
Gonzaga; that when Alfredo Endencio saw that Doa Juliana Gonzaga was awake,
he shouted to Ga that she was awake, and then Endencio approached Doa Juliana
and stabbed her mercilessly with the kitchen knife (Exh. Y). Don Julio Gonzaga,
who was sleeping on the other bed inside the masters bedroom, was awakened by
the violence near him and stood up, but he was met by Ernesto Ga and was told to
calm down. But Rogelia Gonzaga came rushing towards her parents room,
shouting. Because of that reaction, Ernesto Ga stabbed Don Julio with a dagger and
after stabbing him, rushed to the door where accused Endencio, who also met Don
Julio, who was then going out of the bedroom, stabbed Julio Gonzaga also. The
accused Endencio and Ga met Rogelia Gonzaga [by] the door and they also stabbed
her on the face and several parts of her body. Rogelia Gonzaga, though wounded,
managed to call the Forbes Park security guards for help. Lt. Lope Celestial and
Victorino Sindayon and Cesario Pabillaran called the Makati Medical Center
ambulance that took Rogelia Gonzaga and Doa Juliana Gonzaga to the said
hospital.
"The weapons used by Ernesto Ga and Alfredo Endencio were thrown by them near
the concrete wall of the Gonzaga residence and at the servants quarters, and they
managed to escape through Tamarind Road, passing Pili Road, where they spent the
night at the ground floor of the residence of Mr. Malulis, unnoticed by the
occupants; that at about 5:30 A.M. of July 30, 1977, they jumped off the wall of
that residence and they fled . . ." 6
The information filed on 3 August 1977 in the court quo charging Ernesto Ga y
Esplanada, Alfredo Endencio y Salvador and Reynaldo Ruga y Resurreccion alias
Reynaldo Bustamante y Mutas, reads as follows:jgc:chanrobles.com.ph
"That on or about the 30th day of July, 1977, in the municipality of Makati, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating together and mutually helping and
aiding one another, at nighttime, a circumstance deliberately sought to insure
success in the commission of the crime, with intent of gain, and by means of force,
violence and intimidation upon the person of one Bonifacio Marteja y Juntilla, a
houseboy, while in his dwelling, did, then and there, willfully, unlawfully and
feloniously take, steal and carry away one (1) wristwatch worth P100.00 and one
(1) transistor radio worth P60.00, belonging to one Bonifacio Marteja y Juntilla,
thereby causing damage and prejudice to the latter in the aforesaid amount of
P160.00;
"That by reason or on the occasion of said robbery and for the purpose of enabling
them (accused) to take, steal and carry away the aforesaid articles in pursuance of
their conspiracy and for the purpose of enabling (sic) the success of their criminal
act, with intent to kill, did, then and there, willfully, unlawfully and feloniously
attack, assault and stab with a kitchen knife and a dagger the following, to wit:
Juliana Gonzaga y de la Rama, Julio Gonzaga y Cuison, and Andres Larion alias
Jessica, thereby inflicting upon the aforesaid persons mortal stab wounds which
directly caused their death and inflicting stab wounds to one Rogelia Gonzaga y de
la Rama, thus performing all the acts of execution which would have produced the
crime of homicide as a consequence but nevertheless did not produce it by reason
of cause or causes independent of their will, that is, due to the timely and able
medical attendance rendered to said Rogelia Gonzaga y de la Rama which

prevented her death.

"Contrary to law." 7
Upon arraignment, the above accused, being duly assisted by counsel de oficio,
pleaded guilty to the Information. 8 Evidence was presented to determine the
degree of culpability of the accused. 9 The defense submitted Gas birth certificate
(Exh. 1-Ga) and baptismal certificate (Exh. 5-Ga) to show that he was one day
short of his 17th birthday at the time of the commission of the offense. The lower
court appreciated against all accused the aggravating circumstances of superior
strength, insult or disregard of the respect due the victims on account of their ages,
nighttime and commission by a band. It also took into consideration their
intoxication, habitual delinquency and recidivism, based on records presented that
showed that they have been previously convicted of the crimes of serious physical
injuries and of theft. 10
On 10 August 1977 they were found GUILTY beyond reasonable doubt of the crime
of Robbery with Triple Homicide and Frustrated Homicide and sentenced to each
suffer the penalty of DEATH THRICE. They were also ordered to jointly and severally
indemnify the heirs of the victims in the amount of P200,000.00; to pay moral
damages in the amount of P10,000.00; and another P10,000.00 as exemplary
damages, jointly and severally; and to pay their proportionate shares of the costs.
11
In his appeal of the decision appellant Ernesto Ga through counsel raised the
following errors:jgc:chanrobles.com.ph
"1. THE TRIAL COURT ERRED IN CONSIDERING COMMISSION OF A CRIME BY A
BAND AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE.
"2. THE TRIAL COURT ERRED IN CONSIDERING INSULT OR DISREGARD OF THE
RESPECT DUE THE VICTIMS ON ACCOUNT OF AGE AS AN AGGRAVATING
CIRCUMSTANCE IN THIS CASE.
"3. THE TRIAL COURT ERRED IN CONSIDERING NIGHTTIME AS AN AGGRAVATING
CIRCUMSTANCE IN THIS CASE.
"4. THE TRIAL COURT ERRED IN CONSIDERING INTOXICATION AS AN
AGGRAVATING CIRCUMSTANCE IN THIS CASE.
"5. THE TRIAL COURT ERRED IN CONSIDERING RECIDIVISM AND HABITUAL
DELINQUENCY AS AGGRAVATING CIRCUMSTANCES IN THIS CASE.
"6. THE TRIAL COURT ERRED IN FAILING TO CONSIDER PLEA OF GUILTY AS A
MITIGATING CIRCUMSTANCE IN THIS CASE.
"7. THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE MINORITY OF
APPELLANT GA AS A PRIVILEGED MITIGATING CIRCUMSTANCE IN THIS CASE
"8. THE ACCUSED GA AND ENDENCIO BEING MINORS AT THE TIME OF THE
COMMISSION OF THE CRIME, SHOULD HAVE BEEN ENTITLED TO THE BENEFITS
UNDER PRESIDENTIAL DECREE NO. 603, OTHERWISE KNOWN AS THE CHILD AND
YOUTH WELFARE CODE.
"9. THE TRIAL COURT ERRED IN SENTENCING APPELLANTS TO DEATH." 12
Because the accused pleaded guilty to the crime charged, the only aspect of the
case properly subject to review is the correctness of the penalty imposed by the
court a quo. 13 In doing so We shall resolved the assigned errors in sequence.

As to the first assigned error, We find merit in appellants contention that the
aggravating circumstance of commission of a crime by a band should not have been
appreciated against them. A band (en cuadrilla) consists of at least four malefactors
who are all armed. 14 In this case there were only three perpetrators and two
weapons, a kitchen knife (Exh. "Y") and a dagger (Exh. "Z"). Clearly, the terrible
threesome of the accused did not constitute a band.
Appellant next alleges that insult or disregard of the respect due the victims on
account of their ages was not present in the commission of the crime. The Solicitor
General agrees that this deserves consideration "because no evidence was
presented and nothing appears in the judgment to indicate that, in the commission
of the crime, the appellants deliberately intended to offend or insult the sex or age
of the victims," 15 citing People v. Mangsant. 16 While the conclusion reached is
correct, the applicable doctrine should be that enunciated in People v. Pagal 17 and
reiterated in People v. Ang 18 and People v. Nabaluna, 19
that:jgc:chanrobles.com.ph
"The aggravating circumstance that the crime was committed with insult or in
disregard of the respect due the offended party on account of his rank, age or sex
may be taken in account only in crimes against persons or honor, when in the
commission of the crime there is some insult or disrespect shown to rank, age, or
sex (Albert, Revised Penal Code, 1946 Ed., p. 109; Reyes, Revised Penal Code,
1974 Ed., Vol. I, p. 297). It is not proper to consider this aggravating circumstance
in crimes against property (Aquino, Revised Penal Code, 1976 Ed., Vol. I, p. 286,
citing U.S. v. Samonte, 8 Phil. 286). Robbery with homicide is primarily a crime
against property and not against persons. Homicide is a mere incident of the
robbery, the latter being the main purpose and object of the criminal (Ibid., Vol. III,
1976 Ed., p. 1434, citing U.S. v. Ipil, 27 Phil. 530, 535). The trial court erred in
taking into account this aggravating circumstance." 20
Note, further, that what was involved in Mangsant was a crime against persons: the
murder of a girl fourteen years of age. While it may be understandable that the
prosecution alleged the aggravating circumstance of insult or disregard of the sex of
the victim in the information, nevertheless, the Court finds that such aggravating
circumstance is not present in this case.
Appellant also assails the appreciation of nighttime as an aggravating circumstance
on the ground that, while nighttime may be the factual setting of the crime, it does
not appear to have been especially or deliberately sought by the accused in order to
facilitate its commission. Citing People v. Apduhan, Jr. 21 and People v. Flores, 22
appellant argues that nocturnidad must concur with the intent and design of the
offender to capitalize on the intrinsic impunity afforded by the darkness of the
night. 23
Appellants reliance on these two cases is misplaced. Rather, these two cases
support the correct position taken by the Solicitor General that a plea of guilty is
not only an admission of guilt but also of the material facts alleged in the complaint
or information. 24
In Flores, the ruling touched on nocturnity merely to illustrate that it was a term
with legal significance not ordinarily understandable by a layman unless explained
to him. 25 The case dwelt more on whether or not the accused, in pleading guilty,
fully understood the nature of the charges against him and the character of the
punishment provided by law before it is imposed. It was then ordered that a new
arraignment of the defendant with the assistance of counsel and with the
precautions therein indicated be conducted by the lower court.
On the other hand, in Apduhan Jr. the Court ruled that:jgc:chanrobles.com.ph

"While an unqualified plea of guilty is mitigating, it at the same time constitutes an

admission of all the material facts alleged in the information, including the
aggravating circumstances therein recited (People v. Egido, 90 Phil. 762; People v.
Santos and Vicente, 105 Phil. 40) . . .
". . . The prosecution does not need to prove the said three circumstances (all
alleged in the second amended information) since the accused, by his plea of guilty,
has supplied the requisite proof (People v. Acosta, 98 Phil. 642; People v. Rapirap,
102 Phil. 863). Hence we will not belabor our discussion of the attendant
aggravating circumstances." 26
It has been established that the accused pleaded guilty to the Information, which
reads in part that the crime was committed "at nighttime, a circumstance
deliberately sought to insure success in the commission of the crime, . . . ." Further,
a claim of an improvident plea was never part of the defense strategy. Appellant
does not question the effect of his plea of guilty to the crime charged. He merely
disputes the appreciation against him of an aggravating circumstance duly alleged
in the information. Applying the aforestated general rule, therefore, there is no
need for the prosecution to prove the attendance of said circumstance.
The facts in the Formentera case are not obtaining here. In that case, We
considered the trial court as having committed certain lapses when it.
". . . did not require the prosecuting fiscal to present evidence to determine the
exact degree of the accuseds culpability. It merely relied on his plea of guilty and
the manifestation of his counsel de oficio that the only mitigating circumstances
(sic) was his plea of guilty. Thus, the court below took into account the aggravating
circumstances of nighttime, dwelling, abuse of superior strength and recidivism, as
"gathered" from the information. It did not require the fiscal to prove that the
"wee" hours alleged in the information referred to nighttime, or that the same was
purposely sought by the accused to better accomplish their purpose or to afford
impunity . . ." 27
Furthermore, in his brief appellant does not support his claim that nighttime is not
obtaining. On the contrary, aside from being alleged in the information, the facts as
found by the trial court clearly establish that the accused waited until midnight to
execute their designs and took advantage of the cover of darkness to avoid
discovery, minimize the risk of capture and facilitate their escape. The application of
nocturnity is proper. 28
The next assigned error is the appreciation against the accused of the alternative
circumstance of intoxication as aggravating Appellant argues that, while the
evidence shows that prior to the commission of the crime the three accused drank
liquor, it has not been proven that they were in a state of intoxication at the time
the crime was actually committed. He cites the case of U.S. v. Dowdell, Et Al., 29
where it was held that intoxication cannot be considered mitigating where the
accused were sufficiently sober to know what they were doing when committing the
unlawful act. He claims that his ability to give a detailed account of how the crime
was committed shows that he was not in a state of intoxication.
Intoxication is mitigating when it affects the mental faculties of the accused. 30
Appellants line of argument therefore is supportive of not appreciating drunkenness
as a mitigating circumstance in his favor. Appellant should have attempted to prove
instead that the evidence presented is not sufficient to indicate that his inebriated
state was habitual or intentional, these being the bases for the considering
intoxication an aggravating circumstance. 31 On the other hand, the records
indicate that after they had planned the crime, the accused went on a drinking
spree first with whiskey then with gin with some of their would-be victims. In

this instance, intoxication is aggravating because it was intentional, i.e., it was

subsequent to the plan to commit the crime. 32 The accused drank to embolden
themselves in the commission of the offense.
Appellant next contends that the trial court erred in appreciating recidivism and
habitual delinquency as aggravating circumstances against him. We agree with the
Solicitor General in the merit of this contention considering that the evidence for
the prosecution consisted merely of photo-copies of the NBI criminal records of
appellant which were neither certified nor identified by a witness and no
explanation was given as to why the original copies were not produced. As we held
in People v. Ang:jgc:chanrobles.com.ph
"To find recidivism against an accused, the same must be alleged in the Information
and certified copies of the sentences rendered must be adduced at the trial and
admitted as evidence with knowledge of the accused (People v. Hermosilla, 122
SCRA 905 [1983]; People v. Scott, 62 Phil. 553 [1935]). However, even if it is not
alleged, the same may be appreciated if proven by evidence (People v. Perez, 106
SCRA 436 [1981]), or if admitted by the accused during the trial (People v.
Carzano, 95 SCRA 146 [1980]). In this case, recidivism was not alleged in the
Information, much less was there any admission by the accused, nor was there
sufficient proof of the same." 33
The sixth assigned error is the failure of the trial court to consider the plea of guilty
as a mitigating circumstance in favor of appellant. In line with Our ruling in People
v. Crisostomo, 34 We find no reason to controvert the recommendation of the
Solicitor General 35 that the same be appreciated as the records show that
appellant spontaneously pleaded guilty to the crime charged in the Information
immediately upon arraignment before the competent court that is to try the case
and prior to the presentation of evidence for the prosecution. 36
As to the seventh assigned error, appellant assails the failure of the trial court to
consider his minority as a privileged mitigating circumstance inspite of the
presentation of his birth certificate (Exhibit 1-Ga) and baptismal certificate (Exh. 5Ga) indicating that he was born on 1 August 1960, and therefore one day short of
his 17th birthday at the time of the commission of the offense. While appellant cites
the Court of Appeals case of People v. Ibaez Jr., 37 to show that the birth
certificate would be the best evidence of age, the Solicitor General points out that
the birth certificate was discredited by the trial court because it was full of erasures
and alterations. 38 We understand, then, why the trial court had to resort to the
Social Security System identification card (Exh. "D"), the drivers license (Exh. "N"),
and the Medicare identification card (Exh "O") of appellant, all of which show that
he was born on 1 August 1956. Therefore, as proven by other equally admissible
and more competent evidence indicating that when appellant committed the crime
he was 20 years, 11 months and 29 days old, minority as a privileged mitigating
circumstance under Article 68 of the Revised Penal Code should not be considered
in his favor.
Regarding the penultimate assigned error on the entitlement of the appellant to the
benefits under Presidential Decree No. 603, otherwise known as the Child and Youth
Welfare Code, suffice it to say that, in any event, recourse to the benefit of a
suspended sentence as a youthful offender in accordance with said law has become
moot and academic inasmuch as appellant is now above 21 years of age, and the
rule is that if an accused reaches the age of majority during appeal, he is no longer
entitled to a suspended sentence. 39
In People v. Casiguran 40 We held that.
"The purpose of articles 189 and 192 of the Child and Youth Welfare Code is the
same as that of article 80 (of the Revised Penal Code) and that is to avoid a

situation where juvenile offenders would commingle with ordinary criminals in

prison. So, instead of imposing a condemnatory sentence on them, they are
confined in a beneficent institution for their care, correction and education (People
v. Estefa, 86 Phil. 104, 110).
"Article 192 should be interpreted in the same manner as article 80. Under the
original provisions of Article 80 (before it was amended by Republic Act No. 47
which reduced the age of eighteen years to sixteen years), it was held that if at the
time the crime was committed the accused was below eighteen years but at the
time of the trial or conviction he was no longer a minor, he is not entitled anymore
to a suspended sentence because he is not a juvenile offender but already an adult.
The reason for the suspended sentence does not apply to him (People v. Celespara,
82 Phil. 399; People v. Nuez, 85 Phil. 448; People v. 13 Estefa, supra; People v.
Lingcuan, 93 Phil. 9; People v. Doria, L-26189 and two other cases, January 31,
1974, 55 SCRA 435, 450; People v. Pedro, L-18997, January 31, 1966, 16 SCRA 57,
67)."cralaw virtua1aw library
Finally, appellant argues that the lower court erred in sentencing him to death.
Under the Revised Penal Code, when by reason or on the occasion of a robbery, the
crime of homicide shall have been committed, the penalty of reclusion perpetua to
death is imposable. 41 Based on the foregoing disquisition, it is clear that the
imposition of the death penalty is correct, 42 there being three aggravating
circumstances: abuse of superior strength, 43 nighttime and intoxication, and only
one mitigating circumstance; the voluntary plea of guilty. However, consistent with
the Constitution and Our ruling in People v. Millora, Et Al., 44 to the effect that
Section 19(1), Article III of the Constitution does not declare the abolition of the
capital punishment but merely prohibits its imposition, the penalty to be imposed
on appellant Ga is reduced to reclusion perpetua.
The lower court, however, was in error when it convicted the accused of "the crimes
of Robbery with Triple Homicide, and Frustrated Homicide," and in imposing on each
of the accused the death penalty three times. We reiterate at this point Our ruling
in People v. Cario, 45 that
"there is no crime of Robbery with Homicide and Frustrated Homicide. The term
Homicide in paragraph 1, Art. 294 is to be understood in its generic sense. It
includes murder and slight physical injuries committed during the occasion of the
robbery which crimes are merged in the crime of robbery with homicide as defined
in paragraph 1 of Article 294 of the Revised Penal Code (People v. Saquing 30 SCRA
834)."cralaw virtua1aw library
Notwithstanding the fact that three persons were killed and one seriously injured in
the commission of the robbery, the charge should have been only for robbery with
homicide. 46
WHEREFORE, the decision appealed from is AFFIRMED with the modification that
the accused is hereby held guilty of a single offense of robbery with homicide and
imposed the corresponding penalty ofreclusion perpetua. The civil indemnity for
each of the three victims is reduced to P30,000.00, to be paid to their heirs. No
pronouncement as to costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ZALDY P.
PADILLA, Accused-Appellant.
DECISION
MENDOZA, J.:

For review in this case is a decision, dated May 8, 1997, of the Regional Trial Court,
Branch XLV, at Urdaneta City, Pangasinan, finding accused-appellant Zaldy P. Padilla
guilty of rape and imposing on him the penalty of death. The trial court also ordered
accused-appellant Padilla to indemnify the offended party, Maria Aurora B. Bautista,
in the amount of P50,000.00 and to pay the costs.chanroblesvirtual|awlibrary
The evidence for the prosecution shows that at around 5 oclock in the afternoon on
April 27, 1995, Maria Aurora, a 13-year old retardate, was in the citrus farm owned
by a neighbor, Jose Sagun, when accused-appellant accosted her. The latter, who is
married with two children, was then 26 years old and employed by Sagun as a
farmhand. Armed with a scythe and a knife, Accused-appellant forced Maria Aurora
to undress and lie down on the grass. As she lay on there, Accused-appellant forced
himself on her, saying: "Kantot tayo" ("Lets have sexual intercourse"). Maria Aurora
resisted accused-appellants advances, but she proved to be no match for him.
Accused-appellant succeeded in ravishing her.
Maria Aurora told her father, Engracio L. Bautista, what happened to her in the
evening. She was taken to the Governor Teofilo Sison Memorial Hospital, where she
was examined by Dr. Luisa F. Cayabyab. Afterwards, the matter was reported to the
Pozorrubio Police Station. 1
On May 2, 1995, Engracio filed a complaint 2 in the Municipal Circuit Trial Court,
Pozorrubio, Pangasinan. After a preliminary investigation, the court found probable
cause that the crime had been committed and that accused-appellant was guilty
thereof. Accordingly, the case was referred to the Office of the Provincial Prosecutor,
Urdaneta City, Pangasinan which on May 26, 1995 filed an information 3 for rape in
the Regional Trial Court, Branch XLV, at Urdaneta City against accused-appellant,
the pertinent portion of which reads:chanrob1es virtual 1aw library
The undersigned upon previous complaint sworn to by the father of the offended
party accuses ZALDY PADILLA Y PILONGO alias "LABO", of the crime of RAPE,
committed as follows:chanroblesvirtuallawlibrary
That on or about the 27th day of April, 1995 at Barangay Bobonan East,
Municipality of Pozorrubio, Province of Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force and intimidation,
did then and there wilfully, unlawfully and feloniously have carnal knowledge of the
complainant, Maria Aurora Bautista, a minor of about 13 years old, against the
latters will.
CONTRARY to Article 335, Revised Penal Code.
Urdaneta, Pangasinan, May 26, 1995.
Upon being arraigned, Accused-appellant pleaded not guilty to the charge,
whereupon hearings were held on December 6, 1995, January 23, January 31,
February 22, and March 27, 1996. On May 8, 1996, judgment was rendered finding
accused-appellant Zaldy Padilla guilty of rape and sentencing him to
death:chanrob1es virtual 1aw library
WHEREFORE, the Court finds the accused ZALDY PADILLA Y PILONGO GUILTY
beyond reasonable doubt of the crime of RAPE defined and penalized under
Republic Act No. 7659, the offense having been committed with the attendant
circumstances of use of a deadly weapon, disregard of the respect due to the
offended party on account of her age, and abuse of superior strength; and hereby
sentences him to suffer the supreme penalty of DEATH, to be executed pursuant to
R.A. No. 8177, otherwise known as the Lethal Injection Law, and to pay the

complainant MA. AURORA BAUTISTA in the amount of P50,000.00 as damages, and

to pay the costs.
Hence, this appeal. Accused-appellant raises this lone assignment of
error:chanrob1es virtual 1aw library
THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE AGAINST THE ACCUSEDAPPELLANT THE TESTIMONY OF THE ALLEGED VICTIM DESPITE THE FACT THAT
THE LATTER IS INCOMPETENT TO TESTIFY DUE TO HER MENTAL HANDICAP.
Accused-appellants contention is without merit.
First. The basic test of a witness qualification is of course whether he can perceive
and, perceiving, can make known his perception to others. 4 Negatively put, Rule
130, 21 of the Revised Rules of Court provides:chanroblesvirtuallawlibrary
The following persons cannot be witnesses:chanrob1es virtual 1aw library
(a) Those whose mental condition, at the time of their production for examination,
is such that they are incapable of intelligently making known their perception to
others;
(b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and relating them
truthfully.
Hence, a mental retardate is not, by reason of such handicap alone, disqualified
from testifying in court. He or she can be a witness, depending on his or her ability
to relate what he or she knows. If the testimony of a mental retardate is coherent,
the same is admissible in court. 5 Thus, we have in several cases 6 upheld the
conviction of the accused based mainly on statements given in court by the victim
who was a mental retardate.
Trial courts, which have the opportunity to observe the facial expressions, gestures,
and tone of voice of a witness while testifying, are competent to determine whether
his or her testimony will be given credence. 7 In the instant case, the trial court
accorded weight to the testimony of Maria Aurora. Indeed, the complainants
truthfulness is evident in her testimony:chanrob1es virtual 1aw library

The complainants testimony is corroborated by the finding of Dr. Luisa F. Cayabyab,

who examined Maria Aurora in the evening of April 27, 1995. Dr. Cayabyab found
fresh lacerations in her hymen most probably caused by the entrance of a hardened
penis. 9 The relevant portions of the medical certificate, 10 dated April 28, 1995,
which Dr. Cayabyab issued after examining Maria Aurora read:chanroblesvirtual|
awlibrary
Perineum : no sign of external injury
Hymen : with fresh lacerations at 3 to 9 oclock positions
Vagina : admits 1 finger
Cervix : close
Uterus : small
Spermatozoa : negative

Second. During the trial, the prosecution presented evidence tending to show that
Maria Aurora is a mental retardate. 11 Significantly, Accused-appellant also
admitted this point during his direct examination. 12 It is settled that sexual
intercourse with a woman who is a mental retardate constitutes statutory rape,
which does not require proof that the accused used force or intimidation in having
carnal knowledge of the victim for conviction. 13 However, this fact was not alleged
in the information 14 in this case and, therefore, cannot be the basis for conviction.
At any rate, there is adequate evidence to show that the accused-appellant used
force and intimidation in committing the crime of rape in this
case.chanroblesvirtuallawlibrary:red
The defense makes much of Maria Auroras admission that she did not put up a
determined resistance against Accused-Appellant. For instance, she answered at
one point that she did not fight back when accused-appellant laid her down on the
grass. 15 However, the law does not impose a burden on the rape victim to prove
resistance. 16 The fact that the victim did not resist the accused by struggling or
shouting for help does not negate the use of force and intimidation. 17 The use of a
knife and the threat of harm may be sufficient to intimidate the victim to obedience.
18
Maria Aurora, a minor, cannot be expected to react under such circumstances like a
mature woman. Because of her immaturity, she can be easily intimidated, subdued,
and terrified by a strong man like accused-appellant Padilla. 19 There can be no
doubt that Maria Aurora was forced by accused-appellant to have sexual intercourse
with him, and that she eventually submitted to him out of fear from the following
answers she gave to the trial court:chanrob1es virtual 1aw library
There are minor inconsistencies in the testimony of Maria Aurora, such as her
confusion whether it was a knife or a scythe which accused-appellant placed on the
grass above her head after he had forced her to lie down. However, as we have held
in a number of cases, such inconsequential lapses can be expected of a young girl
who was raped, in view of the harrowing experience she is called upon to recall. 21
Such minor inconsistencies, far from detracting from the veracity of her testimony,
in fact tend to bolster it. 22
Third. To rebut the evidence presented against him, Accused-appellant claimed
that, at the time of the rape, he was in their hut preparing supper with two other
farmhands. 23 One of the farmhands, Santiago Sagun, corroborated accusedappellants claim. 24 This claim cannot prevail over the positive identification
of Accused-Appellant. 25 In the instant case, Maria Aurora pointed out accusedappellant in open court as the person who had molested her. 26 Furthermore, for
the defense of alibi to be given weight, it must be shown that it was impossible for
the accused to have been present at the place where the crime was perpetrated at
the time of its commission. 27 But in this case, the hut where accused-appellant
claimed he was in with the two other farmhands is only a short distance from the
scene of the rape. 28 Hence, the trial court correctly rejected his alibi.
The trial court also correctly found that the rape was committed with the use of a
deadly weapon and, therefore, the imposable penalty is reclusion perpetua to
death. 29 However, it erred in appreciating the aggravating circumstances of
disregard of the respect due to the victim by reason of his or her age and abuse of
superior strength. Although disregard of the respect due to the victim by reason of
his or her age can be taken into account where the victim is of old age as well as of
tender age, 30 the same can be considered only in cases of crimes against persons
and honor. 31 At the time of the rape on April 27, 1995, rape was classified as a
crime against chastity. R.A. No. 8353 classifying it as a crime against persons took
effect only on October 22, 1997 and cannot therefore be given retroactive effect so

as to justify the consideration of disregard of the respect due to the victim by

reason of his or her age. Even if such aggravating circumstance could be considered
in this case, it nonetheless cannot be appreciated because nothing appears in the
record from which it may be presumed that in the commission of the
crime, Accused-appellant deliberately intended to offend or insult the age of the
offended party. 32 Nor can the aggravating circumstance of abuse of superior
strength be appreciated as the trial court did, since the consideration of the same
requires evidence of the relative physical conditions of the assailant and the victim,
which the prosecution failed to present. 33 As the penalty for rape when committed
with the use of a deadly weapon is reclusion perpetua to death, the penalty
ofreclusion perpetua should be imposed in the absence of any aggravating
circumstances. 34
It is also to be noted that the trial court ordered accused-appellant to pay the
complainant only the civil liability arising from the offense in the amount of
P50,000.00. This is equivalent to actual or compensatory damages in civil law.
However, in addition to such amount the offended party is entitled to moral
damages, which is automatically granted in rape cases without need of any proof.
Currently, moral damages for rape is fixed at P50,000.00. 35 Hence, the additional
sum of P50,000.00 should be awarded to Maria Aurora B. Bautista.
WHEREFORE, the decision dated May 8, 1996 of the Regional Trial Court, Branch
XLV, Urdaneta City, Pangasinan is hereby AFFIRMED, with the modification that
accused-appellant is sentenced to reclusion perpetua and is ordered to pay
P50,000.00 to Maria Aurora B. Bautista by way of moral damages in addition to the
amount of P50,000.00 which the trial court ordered accused-appellant to pay as
indemnity.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JESUS DELA CRUZ,

DEMEROLD AYADO and ABECIDUEO AJEDO, JR., Accused-Appellants.
The Solicitor General for Plaintiff-Appellee.
Public Attorneys Office for Accused-Appellants.
SYLLABUS

1. REMEDIAL LAW; ACTION; NEW TRIAL; GROUNDS. The trial court correctly
denied the petition for new trial. Under Section 2, Rule 121 of the Rules of Court, a
new trial may be granted based on any of the following grounds: "a) That errors of
law or irregularities have been committed during the trial prejudicial to the
substantial rights of the defendant; and b) That new and material evidence has
been discovered which the defendant could not with reasonable diligence have
discovered and produced at the trial, and which if introduced and admitted, would
probably change the judgment."cralaw virtua1aw library
2. ID.; ID.; ID.; NEWLY DISCOVERED EVIDENCE; REQUISITES. The second
ground, which is invoked by the accused-appellants, has the following requisites:
(a) the evidence was discovered after the trial; (b) such evidence could not have
been discovered and produced at the trial even with the exercise of reasonable
diligence; and (c) that it is material, not merely cumulative, corroborative or
impeaching, and is of such weight that, if admitted, will probably change the
judgment.
3. ID.; ID.; ID.; ID.; DENIAL OF MOTION, PROPER WHERE SAME IS MERELY
CORROBORATIVE. None of these requisites is present in the instant case.
Accused-appellants knew all the while that Millo had executed a sworn statement,
Exhibit "I," which was duly attached to the records. This is the best evidence of the
nature of his testimony. Accordingly, if they honestly believed that his testimony
was vital for the defense, they should have presented him. The records do not at all
show that diligent efforts were exerted by the accused-appellants to bring the
witness before the court. As an after-thought, they now ascribe to their previous
counsel acts of impropriety and negligence in not presenting Millo. A painstaking
review of the records fails to disclose any basis for such an unfair accusation. More
importantly, Accused-appellants themselves openly admit that the testimony of
Millo would only be corroborative of the testimony or version of Jesus dela Cruz.
Such a statement is fatal to their cause because it amounts to an admission that
the third requisite for a new trial is absent. Being merely corroborative, the
testimony of Millo can be dispensed with.
4. ID.; ID.; APPEAL; PERFECTED UPON THE FILING OF NOTICE OF APPEAL; EFFECT.
In criminal cases, an appeal is deemed perfected upon the filing of the notice of
appeal. Upon the perfection of the appeal, the trial court loses its power to modify
or set aside the decision, or order a new trial. All it can do is to issue orders for the
protection and preservation of the rights of the parties which do not involve any
matter litigated in the appeal. This does not mean, however, that an accused is
thereafter forever barred from filing a petition for new trial. In an appropriate case,
he may file it with the appellate court.
5. ID.; ID.; ID.; NOTICE OF APPEAL; ONCE FILED, CANNOT BE VALIDLY
WITHDRAWN. A notice of appeal, once filed, cannot be validly withdrawn to give
way to a motion for reconsideration or a petition for new trial since, as above
stated, the filing of the notice perfected the appeal and the court thereby lost its
jurisdiction over the case; hence, it can no longer act on either the motion or the
petition. The only valid withdrawal of an appeal would be one where an accused
decides to serve the sentence.
6. ID.; EVIDENCE; CREDIBILITY; NOT AFFECTED BY MERE RELATIONSHIP.
Antonia Naturas relation to the victim does not necessarily disqualify her on the
grounds of bias and undue interest. There is absolutely nothing in our laws to
disqualify a person from testifying in a criminal case in which the said persons
relative was involved, if the former was really at the scene of the crime and was a
witness to the execution of the criminal act.

7. ID.; ID.; WEIGHT AND SUFFICIENCY; TESTIMONY OF A SINGLE WITNESS IF

POSITIVE AND CREDIBLE, SUFFICIENT TO CONVICT. The testimony of a lone
eyewitness, if positive, reasonable and credible, is sufficient to support a conviction
especially if the testimony bears the earmarks of truth and sincerity and had been
delivered spontaneously, naturally and in a straightforward manner.
8. ID.; ID.; CORROBORATIVE EVIDENCE; NECESSARY WHEN THERE ARE REASONS
TO BELIEVE THAT THE OBSERVATION OF A WITNESS HAD BEEN INACCURATE.
Corroborative evidence is necessary only when there are reasons to warrant the
suspicion that the witness falsified the truth or that his observation had been
inaccurate. In the case at bar, the trial court found the testimony of Antonia Natura
convincing and trustworthy enough to warrant a conviction. We find no reason to
disturb such finding as there is no showing that exceptions to the rule on
conclusiveness of findings of facts of trial courts exist.
9. ID.; ID.; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL JUDGE WHO PENNED
THE DECISION BUT DID NOT HEAR THE CASE IN ITS ENTIRETY, UPHELD ON
APPEAL. The fact that the judge who penned the decision did not hear the case in
its entirety he only had the chance to hear and observe the defense witnesses -is not a compelling reason to jettison his findings and conclusion considering that
the full record was available to him for his perusal. (People v. Abaya, 185 SCRA 419
[1990])
10. ID.; ID.; ID.; ALIBI; UNAVAILING WHERE ACCUSED IS POSITIVELY
IDENTIFIED. Alibi is an inherently weak defense especially when the accused is
positively identified.
11. ID.; ID; ID.; ID.; REQUISITE TO PROSPER AS A DEFENSE. For the defense of
alibi to prosper, it is enough that the accused-appellants are able to show that they
were somewhere else when the crime was committed; they must likewise
demonstrate that it was physically impossible for them to have been at the scene of
the crime. In the instant case, Ajedo and Ayado were positively identified by a
witness; furthermore, the trial court concluded that the place where they
supposedly were at the time of the incident is only five (5) kilometers away from
the scene of the crime, a distance which they could easily negotiate in one (1) hour
by hiking. It was not, therefore, impossible for the two to be at the scene of the
crime.
12. REMEDIAL LAW; EVIDENCE; IN SELF DEFENSE, THE BURDEN OF PROOF IS ON
THE ACCUSED. This Court cannot likewise accept the plea of self-defense of
accused-appellant Jesus dela Cruz. In a long line of cases, it has been held that
where the accused admits to the killing of the victim but invokes self-defense, it is
incumbent upon him to prove by clear and convincing evidence that he indeed
acted in defense of himself. As the burden of proof is shifted to him, he must rely
on the strength of his own evidence and not on the weakness of that of the
prosecution.
13. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; SELF-DEFENSE; REQUISITES.
For the plea of self-defense to prosper, it is necessary that the following
circumstances must concur: (a) unlawful aggression, (b) reasonable necessity of
the means employed to prevent or repel it, and (c) lack of sufficient provocation on
the part of the person defending himself.
14. ID.; CONSPIRACY; MAY BE INFERRED FROM THE CONCERTED ACTS OF ALL THE
ACCUSED. Conspiracy need not be established by direct evidence but may be
inferred and proven from the acts of the accused themselves when said acts point
to a joint purpose and design, concerted action and community of interest.
Otherwise stated, it may be deduced from the mode and manner in which the
offense was perpetrated.

15. ID.; ID.; LIABILITY; THE ACT OF ONE IS THE ACT OF ALL. The convergence
of wills of the accused-appellants in carrying out a common unlawful purpose amply
justified the imputation to all of them the act of any one of them.
16. ID.; QUALIFYING CIRCUMSTANCE; EVIDENT PREMEDITATION; ELEMENTS.
The elements of evident premeditation, are to wit: (a) the time when the accused
determined to commit the crime, (b) an act manifestly indicating that the accused
had clung to his felonious determination, and (c) a lapse of time between the
determination and execution sufficient to allow the accused to reflect upon the
consequences of his act.
17. ID.; ID.; TREACHERY; WHEN APPRECIATED. Treachery is present when a
crime against a person is committed employing means, methods or forms in the
execution thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might make. For
treachery to be present, two (2) conditions must concur: (a) the employment of
means of execution that gives the person attacked no opportunity to defend himself
or to retaliate, and (b) that said means of execution was deliberately or consciously
adopted.
18. ID.; AGGRAVATING CIRCUMSTANCES; SUPERIOR STRENGTH AND NIGHTTIME
ABSORBED IN TREACHERY. While indeed there was abuse of superior strength,
this aggravating circumstance should, however, be deemed absorbed in treachery.
The same goes for the circumstance of nighttime.
19. ID.; ID.; DISREGARD OF AGE; THERE MUST BE PROOF THAT ACCUSED
DELIBERATELY INTEND TO OFFEND OR INSULT THE VICTIM BY REASON OF HIS
AGE. The aggravating circumstance of disregard of age may not likewise be
taken into account. Although at the time of his death, the victim was 50 years old
and the accused-appellants Dela Cruz, Ayado and Ajedo were 29, 18 and 18 years
of age, respectively, there is no sufficient evidence to prove that they deliberately
intended to offend or insult the age of the victim. For this aggravating circumstance
to be appreciated, it is necessary that there be such a deliberate intent.
20. ID.; MURDER; PENALTY IN THE ABSENCE OF MITIGATING OR AGGRAVATING
CIRCUMSTANCES. The crime of murder is punished by reclusion temporal
maximum to death. There being no mitigating or aggravating circumstances
obtaining in this case, and following the doctrine enunciated in People v. Muoz, the
medium of the penalty, which is reclusion perpetua, should be imposed upon
theAccused-Appellants.
21. CIVIL LAW; DAMAGES; INDEMNITY FOR DEATH RAISED TO P50,000. The
indemnity is hereby increased from P30,000.00 to P50,000.00.
DECISION
DAVIDE, JR., J.:
In an information filed with the then Court of First Instance (now Regional Trial
Court) of Cabarroguis, Quirino, on 28 October 1982, Accused-appellants Jesus dela
Cruz, Demerold Ayado and Abecidueo Ajedo, Jr. were charged with the crime of
Murder as defined and penalized under Article 248 of the Revised Penal Code,
committed as follows:chanrobles.com.ph : virtual law library
"That on or about the 21st day of July, 1982, in the municipality of Diffun, Province

of Quirino, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused Jesus dela Cruz, Demerold Ayado and Abecidueo Ajedo, did
then and there, wilfully, unlawfully and feloniously by conspiring together and
mutually helping one another and by means of treachery and evident premeditation
and with the use of bladed instruments and stones attack, assault, strike and stab
one Felipe Natura by inflicting upon the latter multiple wounds resulting to (sic) the
death of said Felipe Natura therefore.
That the commission of the offense was aggravated by the following
circumstances:chanrob1es virtual 1aw library
1. That accused took advantage of their superiority in numbers (sic);
2. That the crime was committed with insult to or disregard to (sic) the respect due
to offended party by reason of his age;
3. That the crime was committed in the (sic) nighttime to facilitate its commission.
CONTRARY TO LAW." 1
The case was docketed as Criminal Case No. 380.
Upon arraignment, each of the accused entered a plea of not guilty. 2
At the trial of the case on its merits, the prosecution presented eight (8) witnesses,
including eyewitness Antonia Natura, wife of the victim, Felipe Natura. The other
prosecution witnesses were Dr. Luis Bergado, Elpidio Baao, Rolando Natura, Perla
Minia, Judge Jose Guirnela, Archibal Afan and Pat. Bienvenido Gumpal. 3 On the
other hand, the defense presented the following witnesses: Rodolfo Mabanta, Jessie
Tubay, Abecidueo Ajedo, Sr. and accused Jesus dela Cruz. 4
On 28 May 1984, the trial court promulgated its decision 5 convicting the accusedappellants of the crime charged. The dispositive portion thereof reads as
follows:jgc:chanrobles.com.ph
"IN VIEW OF ALL THE FOREGOING CONSIDERATION (sic), there is no doubt in the
mind of the Court that the crime of murder has been committed and that the
accused Jesus dela Cruz, Demerold Ayado and Abecidueo Ajedo, Jr. are guilty
beyond reasonable doubt.
WHEREFORE, this Court hereby sentences Jesus dela Cruz, Demerold Ayado and
Abecedueo Ajedo, Jr. to suffer the penalty of reclusion perpetua and to indemnify
the heirs of the victim in the amount of Thirty Thousand Pesos (P30,000.00) jointly
and severally following the precedent set forth in People v. Dela Fuente, (G.R. Nos.
6351-52) and reiterated in the case of People v. Romeo Villanueva, et. al., (G.R. No.
L-32274), without subsidiary imprisonment in case of insolvency. The detention of
the accused shall be fully credited in their favor."cralaw virtua1aw library
In rendering its verdict and imposing upon the accused-appellants the penalty
of reclusion perpetua, the trial court made the following
pronouncement:jgc:chanrobles.com.ph
"The evidence would show that aggravating circumstances were attendant in the
commission of the offense. Evidence was taken (sic) of superior strength and the
accused employed means to weaken or deprive the victim from a (sic) possible
defense Jesus Dela Cruz with pretense to be friendly, greeted the victim,
approached and accosted him, suddenly grabbed from his waist the scythe while
the accused Demerold Ayado tapped the victims shoulder. The accused Jesus Dela
Cruz, Demerold Ayado and Abecedueo Ajedo, Jr., acting in concert, mauled and

stabbed the victim mercilessly. The victim is an old man although with his helpless
wife, is no match to three armed, young men who conspired to maul and stab him
to death.
The crime was committed at night time to facilitate its commission. The victim with
his wife was (sic) on their way home about 10:00 oclock in the evening of July 21,
1982. They were surprisingly accosted along the stony road by the accused. It was
dead dark that night although the victims wife was holding a lamp. With the lamp
(sic), the wife was holding, would place the victim to (sic) a more vulnerable
assault or attack as it has happened.
It was clearly established from the evidence that the accused Jesus Dela Cruz, his
co-accused Demerold Ayado and Abecedueo Ajedo, Jr. would point to an evil
purpose and design (sic) that of mercilessly stabbing and mauling the victim to
death.
There is no mitigating circumstance to offset the two aggravating circumstances of
taking advantage of superior strength (sic) and night time to facilitate its
commission."cralaw virtua1aw library
Accused-appellants filed a notice of appeal on 4 June 1984. 6 However, on 5 June
1984, they filed a petition for new trial alleging therein excusable neglect on their
part in looking for the other eyewitness, Dionisio B. Millo, whose "new address is
newly discovered," and that the testimony of said witness is so vital and important
that it could alter the judgment of conviction. 7 On 8 June 1984, they filed a motion
to withdraw their appeal as the same was incompatible with their petition for new
trial. They also prayed that their petition for new trial be given due course. 8
On 6 July 1984, the trial court denied 9 the petition for new trial since the
statement or affidavit of Dionisio B. Millo could not be considered newly discovered
evidence as it "existed during all the time when the case was heard;" besides, even
if it were to be admitted, it would not alter the judgment of conviction.chanrobles
lawlibrary : rednad
Hence, on 20 July 1984, Accused-appellants re-filed their notice of appeal.
The antecedent facts, as succinctly stated in the Appellees Brief, 10 are as
follows:jgc:chanrobles.com.ph
"In the evening of July 21, 1982, Antonio (sic) Natura and her husband, Felipe
Natura, went to the house of Councilman Francisco Ponseja located at Barangay
Magsaysay, Diffun, Quirino. They were accompanied by Perla Minia (pp. 5-6, tsn,
Dec. 13, 1982).
They arrived at Councilman Ponsejas house, but he was not around so they
conversed with Councilman Ponsejas wife who was there (p. 6, tsn, Ibid.).
Afterwards, Antonia Natura, her husband Felipe Natura and Perla Minia left
Ponsejas house and returned to their house (p. 7, tsn, Ibid.).
On their way home, they met the three accused, Jesus de la Cruz, Demerold Ayado
and Abecedueno Ajedo, who were standing by the road (p. 7, tsn, Ibid.). Antonia
Natura recognized them as she was carrying an oil lamp.
Upon meeting them, Accused Jesus de la Cruz said, Good evening (Tatang) father.
Felipe Natura answered, Good evening my son (Barok) (p. 7, tsn, Ibid.).
Then, Jesus de la Cruz said to Felipe Natura, you, after the election, as if you hate
me already. Felipe Natura answered, No my son, you forget that already. At this

juncture, Accused Demerold Ayado tapped the shoulder of Felipe Natura, while
Jesus de la Cruz at that same moment shouted, Vulva of your mother and
suddenly boxed Felipe Natura. Demerold Ayado, joined by Abecedueno Ajedo,
likewise, boxed Felipe Natura. While the three accused were boxing and mauling
Felipe, Antonia Natura pleaded for the three accused to stop but the three accused
did not listen to her (pp. 8-9, tsn, Ibid.).
When Antonias pleas remained unheeded, she shouted for help, but nobody came
to their succor. At that juncture, Accused Demerold Ayado took hold of the front
dress of Antonia and shouted at her saying, Vulva of your mother, we are going to
kill you now. You ask help from your sons-in-law (p. 11, tsn, Ibid.).
Antonia struggled to free herself and when her front dress was released from the
hands of Demerold Ayado, she ran back to the house of Ponseja for help (p. 11, tsn,
Ibid.).
When no one was around the house to help her, Antonia returned to the place
where her husband Felipe Natura was being mauled and maltreated. Demerold
Ayado, upon seeing Antonia ran after her, and so the latter ran away again (p. 12,
tsn, Ibid.).
After the lapse of several minutes, when Antonia noticed that everything was quiet,
she returned to the place where her husband was, but the three accused, were no
longer there. She embraced her husband and noticed blood on his face and body.
She ran again to look for help. This time she went to the house of her godson,
Elpidio Banao, who was at home. She informed him that her husband was mauled
by the three accused. When Elpidio Baao and Antonia Natura returned to the
scene of the crime, her husband was no longer there (pp. 13-14, tsn, Ibid.).
She began to shout. Meanwhile, her godson looked around, and noticed that there
was light in the house of Councilman Ponseja and he learned that Felipe Natura was
brought there (p. 15, tsn, Ibid.).
Elpidio and Antonia went to the house of Ponseja and there she saw her husband
prostrate with blood all over his face and body (p. 15, tsn, Ibid.).
When Elpidio noticed that Felipe Natura was still breathing, he hired a vehicle and
brought Felipe to the Quirino Provincial Hospital (p. 15, tsn, Ibid.).
The next morning, Felipe Natura died (p. 18, tsn, Ibid.)."cralaw virtua1aw library
Accused-appellants Demerold Ayado and Abecidueo Ajedo, Jr. put up the defense
of alibi, while accused-appellant Jesus dela Cruz interposed the justifying
circumstance of self-defense. 11
In this appeal, Accused-appellants assign the following errors: 12
"I
THE TRIAL COURT ERRED IN DENYING THE MOTION FOR NEW TRIAL BECAUSE THE
HEREIN ACCUSED-APPELLANTS WERE PREJUDICED AND PREVENTED FROM FAIRLY
PRESENTING THEIR DEFENSE DUE TO THE SERIOUS ERROR ON THE PART OF
THEIR ATTORNEY WHO FAILED TO EXERT SUFFICIENT EFFORTS TO BRING THE
VITAL WITNESS TO TESTIFY IN COURT.
"II
THE TRIAL COURT ERRED IN CONVICTING ALL THE HEREIN ACCUSED-APPELLANTS
FOR (sic) MURDER AND IMPOSING A SENTENCE OF LIFE IMPRISONMENT ON THE
STRENGTH OF THE TESTIMONY OF A LONE WOMAN WITNESS, THE WIFE OF THE
DECEASED, AND THAT NOBODY CORROBORATED HER TESTIMONY OR VERSION OF
THE CASE.
"III

THE TRIAL COURT ERRED IN ITS FINDINGS AND CONCLUSION THAT A

CONSPIRACY EXISTED AMONG THE APPELLANTS IN THE COMMISSION OF MURDER
BECAUSE THE PREVAILING DOCTRINE IN OUR JURISDICTION IS THAT
CONSPIRACY MUST BE SHOWN TO EXIST AS CLEARLY AND CONVINCINGLY AS THE
COMMISSION OF THE OFFENSE ITSELF.
"IV
THE TRIAL COURT ERRED IN INCLUDING THE HEREIN APPELLANTS: DEMEROLD
AYADO AND ABECIDUEO AJEDO IN THE CONVICTION OF THE CRIME OF MURDER
NOTWITHSTANDING AN INSUFFICIENCY OF EVIDENCE ADDUCED AND PRESENTED
AGAINST THEM AS IN FACT THE PROSECUTION FAILED TO PROVE THEIR GUILT
BEYOND REASONABLE DOUBT."cralaw virtua1aw library
1. The first assigned error is without merit. Accused-appellants candidly admit in
their Brief that the main objective of their petition for new trial is "to present either
Dionisio Millo or Teofilo Cielo to testify and corroborate the version of Jesus dela
Cruz." The latter is a witness for the defense. 13 In their petition for new trial,
however, Accused-appellants mention only the name of Dionisio Millo Millo appears
to have been investigated by police corporal Bienvenido Gumpal on 26 July 1982.
He signed a sworn statement on said date before the Municipal Judge of Diffun,
Quirino, 14 which the prosecution marked and offered in evidence as Exhibit "I." 15
They invoke excusable negligence for their failure to present Millo as a witness
allegedly because he could not be reached by the subpoena issued on March 1984
as he had changed his address. 16 The records disclose, however, that at the
hearing on 11 April 1984 for the continuation of the presentation of evidence for the
defense, counsel for the accused-appellants, upon resting his case, expressly
waived the presentation of Millo and any other witness.
Thus:jgc:chanrobles.com.ph
"ATTY. RUBEN Z. FLORES
I am intending to present one witness for the defense, your Honor, but I think that
he is not yet in Court so we are constrained to rest this case, your Honor. With the
presentation of the witnesses for the accused, witness no. 1 Rodolfo Mabanta,
no. 2 Jessie Tubay, no. 3 Abecedueo Ajedo, Sr. and the accused Jesus dela
Cruz without any documentary evidence, your Honor, we are resting our case for
the defense." 17
The trial court correctly denied the petition for new trial. Under Section 2, Rule 121
of the Rules of Court, a new trial may be granted based on any of the following
grounds:jgc:chanrobles.com.ph
"a) That errors of law or irregularities have been committed during the trial
prejudicial to the substantial rights of the defendant; and
b) That new and material evidence has been discovered which the defendant could
not with reasonable diligence have discovered and produced at the trial, and which
if introduced and admitted, would probably change the judgment."cralaw virtua1aw
library
The second ground, which is invoked by the accused-appellants, has the following
requisites: (a) the evidence was discovered after the trial; (b) such evidence could
not have been discovered and produced at the trial even with the exercise of
reasonable diligence; and (c) that it is material, not merely cumulative,
corroborative or impeaching, and is of such weight that, if admitted, will probably
change the judgment. 18

None of these requisites is present in the instant case. Accused-appellants knew all
the while that Millo had executed a sworn statement, Exhibit "I", which was duly
attached to the records. This is the best evidence of the nature of his testimony.
Accordingly, if they honestly believed that his testimony was vital for the defense,
they should have presented him. The records do not at all show that diligent efforts
were exerted by the accused-appellants to bring the witness before the court. As an
after-thought, they now ascribe to their previous counsel acts of impropriety and
negligence in not presenting Millo. A painstaking review of the records fails to
disclose any basis for such an unfair accusation. More importantly, Accusedappellants themselves openly admit that the testimony of Millo would only be
corroborative of the testimony or version of Jesus dela Cruz. Such a statement is
fatal to their cause because it amounts to an admission that the third requisite for a
new trial is absent. Being merely corroborative, the testimony of Millo can be
dispensed with.chanrobles virtual lawlibrary
There is, moreover, another insurmountable obstacle which prevented favorable
action on the petition for new trial. As stated earlier, Accused-appellants filed their
Notice of Appeal on 4 June 1984, a copy of which was received by the Office of the
Provincial Fiscal on that same day. 19 The following day, the accused-appellants
filed their petition for new trial. In criminal cases, an appeal is deemed perfected
upon the filing of the notice of appeal. Upon the perfection of the appeal, the trial
court loses its power to modify or set aside the decision, or order a new trial. 20 All
it can do is to issue orders for the protection and preservation of the rights of the
parties which do not involve any matter litigated in the appeal. 21 This does not
mean, however, that an accused is thereafter forever barred from filing a petition
for new trial. In an appropriate case, he may file it with the appellate court. 22
While it is true that accused-appellants filed on 8 June 1984 a motion to withdraw
their appeal to save their petition for review, the records do not show that the trial
court favorably acted on it. Besides, a notice of appeal, once filed, cannot be validly
withdrawn to give way to a motion for reconsideration or a petition for new trial
since, as above stated, the filing of the notice perfected the appeal and the court
thereby lost its jurisdiction over the case; hence, it can no longer act on either the
motion or the petition. The only valid withdrawal of an appeal would be one where
an accused decides to serve the sentence. 23
2. Being interrelated, as they hinge on the issue of credibility of witnesses, the
second and fourth assigned errors shall be discussed jointly. Under these assigned
errors accused-appellants claim that the testimony of Antonia Nature, the lone
eyewitness, should not have been believed because of the bias and prejudice that
would result from her being the victims wife; moreover, the judge who penned the
decision only heard the witnesses for the defense, while two (2) other judges heard
the evidence for the prosecution Hence, the former could not have observed the
demeanor of the prosecution s lone eyewitness. It is further claimed that accusedappellants Demerold Ayado and Abecidueo Ajedo. Jr. were not positively identified;
thus, their defense of alibi should have been given credence by the trial court.
There is no merit to these claims.
Antonia Naturas relation to the victim does not necessarily disqualify her on the
grounds of bias and undue interest. 24 There is absolutely nothing in our laws to
disqualify a person from testifying in a criminal case in which the said persons
relative was involved, if the former was really at the scene of the crime and was a
witness to the execution of the criminal act.25cralaw:red
Additionally, the testimony of a lone eyewitness, if positive, reasonable and
credible, is sufficient to support a conviction especially if the testimony bears the
earmarks of truth and sincerity and had been delivered spontaneously, naturally
and in a straightforward manner. 26 Corroborative evidence is necessary only when

there are reasons to warrant the suspicion that the witness falsified the truth or
that his observation had been inaccurate 27 In the case at bar, the trial court found
the testimony of Antonia Natura convincing and trustworthy enough to warrant a
conviction. We find no reason to disturb such finding as there is no showing that
exceptions to the rule on conclusiveness of findings of facts of trial courts exist.
The fact that the judge who penned the decision did not hear the case in its entirety
he only had the chance to hear and observe the defense witnesses is not a
compelling reason to jettison his findings and conclusion considering that the full
record was available to him for his perusal. 28 In the case of People v. Abaya, 29
We said:jgc:chanrobles.com.ph
". . . And the mere fact that Judge Alfredo C. Flores did not preside at the trial of
this case in its entirety, having taken over only when the last defense witness was
to be presented, did not detract from the validity, much less the correctness, of his
decision. The full record was available to him. It is evident from the knowledgeable
and analytical decision he has written that he thoroughly examined the testimonial
and documentary evidence before him and carefully assessed the credibility of the
witnesses with the seasoned perceptiveness he has developed as a trial
judge."cralaw virtua1aw library
An examination of the trial judges decision reveals that he meticulously and
carefully examined each and every testimony of all the witnesses. This is readily
apparent from his sixty-seven (67) page decision where the testimonies of all the
witnesses were summarized and evaluated.
The defense of alibi of accused-appellants Abecidueo Ajedo, Jr. and Demerold
Ayado was dismissed by the trial court in this wise: 30
"The accused Demerold Ayado and Abecedueno Ajedo, Jr. would want the Court to
believe that at the time of the commission of the offense charged in the evening of
July 21, 1982 (sic), were at Campamento, Diffun, Quirino, about five (5) kilometers
away from Magsaysay, Diffun, Quirino. It was established, however, that the
distance could be negotiated by hiking in just an hour. The defense, to bolster the
theory, presented Rodolfo Mabanta, stating that Demerold Ayado and Abecedueno
Ajedo, Jr. did not leave the house (house of Abecedueno Ajedo, Jr.) in Campamento,
Diffun, Quirino, on the evening of July 21, 1982, because of an existing barangay
curfew ordinance that nobody could go out at night. However, according to the
same witness, this presumption was just his opinion and belief. Defense presented
another witness in the person of Abecedueno Ajedo, Sr., father of the accused
Abecedueno Ajedo, Jr., and incumbent Barangay Captain of Campamento, Diffun,
Quirino, who testified of (sic) the existence of a Barangay curfew ordinanceresolution No. 4-81 marked as Exhibit "1" for the defense, that the accused
Demerold Ayado and Abecedueno Ajedo, Jr. slept and stayed in his house for three
(3) days and remembers (sic) that in the evening of July 21, 1982, he was in his
house together with the accused Demerold Ayado and Abecedueno Ajedo, Jr.
Witness further remembers of (sic) two violators of said curfew ordinanceResolution No. 4-81 who were accordingly punished. He further stated that
Demerold Ayado and his son, Abecedueno Ajedo, Jr. never went out of the house at
night during their stay for three days in his house because they were tired. In the
evening of July 21, 1982, he presumed that Demerold Ayado and Abecedueno
Ajedo, Jr. to have (sic) slept in their room in his house because he himself that time
was asleep.
The Court took note of the fact that the witness Abecedueno Ajedo, Sr. is the father
of the accused Abecedueno Ajedo, Jr. and the distance between Campamento,
Diffun, Quirino and Magsaysay, Diffun, Quirino, is just five (5) kilometers which
could be negotiated by hiking for just an hour. This puts to nought (sic) the defense
of alibi."cralaw virtua1aw library

It is a well-entrenched doctrine that alibi is an inherently weak defense especially

when the accused is positively identified. 31 Furthermore, for the defense of alibi to
prosper, it is not enough that the accused-appellants are able to show that they
were somewhere else when the crime was committed; they must likewise
demonstrate that it was physically impossible for them to have been at the scene of
the crime. 32 In the instant case, Ajedo and Ayado were positively identified by a
witness, furthermore, the trial court concluded that the place where they
supposedly were at the time of the incident is only five (5) kilometers away from
the scene of the crime, a distance which they could easily negotiate in one (1) hour
by hiking. It was not, therefore, impossible for the two to be at the scene of the
crime.
This Court cannot likewise accept the plea of self-defense of accused-appellant
Jesus dela Cruz. In a long line of cases, it has been held that where the accused
admits to the killing of the victim but invokes self-defense, it is incumbent upon him
to prove by clear and convincing evidence that he indeed acted in defense of
himself. 33 As the burden of proof is shifted to him, he must rely on the strength of
his own evidence and not on the weakness of that of the prosecution. 34
The version of Jesus dela Cruz on what transpired that fateful night is summarized
by the trial court as follows: 35
"With respect to the accused Jesus Dela Cruz, he invoked self-defense. This is his
version. In the evening of July 21, 1982, coming from the house of one Anikki,
followed (sic) the victim Felipe Natura and his wife, Antonia Natura Greeting (sic)
the victim good evening only to be answered angrily you are the man whom I
have been waiting for a long time. Immediately, the victim grabbed his waist,
boxed his forehead and fell down. He (accused) stood up and tried to run away but
the victim holding a scythe, chased him, hitting him on his left arm. Accused and
the victim grappled for the possession of the scythe and in the course of the
grappling, the victim was stabbed. He did not know, however, how he stabbed the
victim. The victim could no longer stand up because of what he did to him. During
the grappling between him and victim Felipe Natura, Antonia Natura, wife of the
victim, held his shirt and boxed him. That Felipe Natura wanted to kill him because
he turned down the request of the victim to kill his political adversary, Rubenciano
Ayado (accuseds stepfather), before the barangay election held on May 17,
1982."cralaw virtua1aw library
For the plea of self-defense to prosper, it is necessary that the following
circumstances must concur: (a) unlawful aggression, (b) reasonable necessity of
the means employed to prevent or repel it, and (c) lack of sufficient provocation on
the part of the person defending himself. 36
In the instant case, the unlawful aggression came not from the victim but from
the Accused-Appellants. The version of Dela Cruz is simply incredible. If We were to
subscribe to it, then the victim would have sustained only one (1) injury the stab
wound.
According to Dr. Luis Bergado, the stab wound could have been caused by a knife or
sharp-pointed instruments, while the other injuries could have been caused by
severe blows from blunt instruments such as a piece of wood, bare fists, or a stone.
38
On the other hand, Dela Cruz claimed that since he merely sustained a wound on
his left thumb, he did not bother to seek medical treatment. 39 This claim of injury,
however, does not inspire belief. As correctly held by the trial
court:jgc:chanrobles.com.ph

"He merely reported the alleged wound to a Policeman of Diffun, Quirino. He could
not remember the Policeman to whom he reported. There was no medical certificate
to prove the wound allegedly sustained by him. During the trial when he testified,
he tried to show to the Court a very insignificant scar on the left hand between the
thumb and the forefinger. The alleged scar, the Court observed, is very insignificant
and almost unnoticeable It is not improbable that the scar might be the scar of a
self-inflicted wound. Again, the Court hardly believe (sic) this version."cralaw
virtua1aw library
3. The trial court was correct in holding that there existed a conspiracy among
the Accused-Appellants.
Conspiracy need not be established by direct evidence but may be inferred and
proven from the acts of the accused themselves when said acts point to a joint
purpose and design, concerted action and community of interest. 40 Otherwise
stated, it may be deduced from the mode and manner in which the offense was
perpetrated. 41
The following established facts, as correctly summarized by the People in its Brief,
establish beyond reasonable doubt the presence of
conspiracy:jgc:chanrobles.com.ph
"1. The crime was committed at night time to facilitate its commission. The victim
and his wife were on their way home at 10:00 oclock in the evening when they
were accosted by the three accused who were together (p. 7, tsn, Dec. 13, 1982).
2. Jesus de la Cruz, pretended to be friendly with Felipe Natura by greeting him. He
then drew out his scythe (kumpay) from his waist with which he hacked the victim
while the other accused Demerold Ayado tapped the victims shoulder (pp. 8-9, tsn,
Ibid.).
3. Then the three accused, acting in concert, mauled and stabbed the victim
mercilessly (pp. 8-9, tsn, Ibid.).
4. While the victim was being mauled, his wife began to plead for mercy, but
instead, one of the accused, Demerold Ayado, took hold of her dress and told her
that he is going to kill her, and because of this she ran away (p. 11, tsn, Ibid.).
5. While she was running, she was chased by Demerold Ayado, but she was able to
evade him (p. 11, tsn, Ibid.).
6. Accused Demerold Ayado returned to the place where the victim was and joined
his co-accused in beating the victim.
7. The three accused then left together leaving behind them the dying victim (p.
12, tsn, Ibid.).
Thus, the convergence of wills of the accused-appellants in carrying out a common
unlawful purpose amply justified the imputation to all of them the act of any one of
them. 42
The information alleges evident premeditation and treachery as the qualifying
circumstances and superiority, nighttime and disregard of age as generic
aggravating circumstances.
The evidence for the prosecution is insufficient to establish the elements of evident
premeditation, to wit: (a) the time when the accused determined to commit the
crime, (b) an act manifestly indicating that the accused had clung to his felonious
determination, and (c) a lapse of time between the determination and execution

sufficient to allow the accused to reflect upon the consequences of his act. 43
Treachery, however, was duly established.
Treachery is present when a crime against a person is committed employing means,
methods or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the
offended party might make. 44 For treachery to be present, two (2) conditions
must concur: (a) the employment of means of execution that gives the person
attacked no opportunity to defend himself or to retaliate, and (b) that said means
of execution was deliberately or consciously adopted. 45 As adverted to
above, Accused-appellant Dela Cruz initially pretended to be friendly with the
victim; he then suddenly grabbed the scythe from the victims waist while accusedappellant Ayado tapped the victim on his shoulder. Thereupon, they mauled and
stabbed the victim. The friendly gesture was a clever ploy to gain the trust of the
victim, remove from his mind any suspicion as to the motive of the accusedappellants or make him feel secure in the thought that nothing untoward would
happen to him, and place him in utter helplessness and complete inability to
prepare for any defense or offer any resistance, thus insuring themselves against
the possible risk of harm arising from any defense which the victim may put
up.chanrobles.com:cralaw:red
While indeed there was abuse of superior strength, this aggravating circumstance
should, however, be deemed absorbed in treachery. 46 The same goes for the
circumstance of nighttime. 47
The aggravating circumstance of disregard of age may not likewise be taken into
account. Although at the time of his death, the victim was 50 years old 48 and the
accused-appellants Dela Cruz, Ayado and Ajedo were 29, 18 and 18 years of age,
respectively, 49 there is no sufficient evidence to prove that they deliberately
intended to offend or insult the age of the victim. For this aggravating circumstance
to be appreciated, it is necessary that there be such a deliberate intent. 50
It follows, therefore, that no generic aggravating circumstance may be appreciated
against theAccused-Appellants. Upon the other hand, they failed to prove any
mitigating circumstance.
The crime of murder is punished by reclusion temporal maximum to death. 51
There being no mitigating or aggravating circumstances obtaining in this case, and
following the doctrine enunciated in People v. Muoz, 52 the medium of the penalty,
which is reclusion perpetua, should be imposed upon the Accused-Appellants. 53
The trial course is correct in this regard. Per recent rulings of this Court, the
indemnity should, however, be increased to P50,000.00. 54
WHEREFORE, the decision appealed from is hereby AFFIRMED, subject to the
modification as to the indemnity which is hereby increased from P30,000.00 to
P50,000.00.
Costs against the Accused-Appellants.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BERNIDO DETUYA,
GREGORIO LOZANO, and FELICIANO NAVALES, Accused-Appellants.
DECISION
SARMIENTO, J.:

This is an appeal from the decision of the then Court of First Instance of
Zamboanga del Sur, Branch II, in Criminal Case No. 94, promulgated on July 17,
1974, the dispositive portion of which reads:chanrob1es virtual 1aw library
In view of all the foregoing, the Court hereby finds the accused BERNIDO DETUYA
and FELICIANO NAVALES guilty beyond reasonable doubt of the crime of robbery
with rape (there were eight rapes committed) penalized under the provision of
Article 294, paragraph 2.
WHEREFORE, appreciating the aggravating circumstances of band, dwelling,
nighttime and ignominy, without having been off-set by any mitigating
circumstance, the Court hereby sentences both the accused BERNIDO DETUYA and
FELICIANO NAVALES to LIFE IMPRISONMENT, to be served at the National
Penitentiary, Muntinglupa, Rizal, with the accessory penalties prescribed by law, to
indemnify, jointly and severally, the offended parties Indin Subana and Graciana
Jumalon in the sum of Twelve Thousand (P12,000.00) Pesos for each and Bernaldo
Jumalon in the total sum of Five Hundred Eighty-Four (P584.00) Pesos,
representing the total amount robbed; to acknowledge and support the offspring of
Graciana Jumalon should there be any, and to pay proportionate costs.
The accused, being detention prisoners, shall be credited with four-fifths (4/5) of
the preventive imprisonment already undergone by them. 1
x

In an Information dated September 16, 1970, Bernido Detuya, Feliciano Navales,

Gregorio Lozano, Patricio Rafols, and Rolando Rafols were charged as
follows:chanrob1es virtual 1aw library
That on March 4, 1970 at about 2:00 oclock dawn, in the barrio of Ditulan,
Municipality of Dumingag, Province of Zamboanga del Sur, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the abovenamed
accused armed with a revolver and hunting knifes, taking advantage of the
nighttime in order to facilitate the commission of the crime, conspiring,
confederating and helping one another, with intent of gain, by force, did, then and
there wilfully and feloniously enter the house of one BERNARDO JUMALON, once
inside, with violence and intimidation, hogtied Bernardo and his children, kick them,
stab them, demanded for money; and with force and intimidation have carnal
knowledge with Indin Subana a 14-year old wife of Bernardo and Graciana Jumalon
a 17-year old daughter of Bernardo, taking turns one after the other against their
will, then, take, steal and carry away cash money in the amount of P500.00, 2 gold
rings worth P45.00, a ladys wrist watch costing P30.00, 3 chickens worth P7.50 all
belonging to Mr. and Mrs. Bernardo Jumalon without their consent and against their
will to the damage and prejudice of the latter in the total amount of P583.50
Philippine Currency.
CONTRARY TO LAW. 2
In the court a quo, all of the five accused pleaded "not guilt" to the crime charged
in the information. However, the accused Patricio Rafols and Rolando Rafols escaped
from detention while the trial was still underway, and are still at large. Of the three
remaining accused, only Gregorio Lozano was actually acquitted due to the failure
of the prosecution to prove this culpability beyond reasonable doubt. 3
Subsequent to the aforequoted judgment of conviction, Bernido Detuya and
Feliciano Navales appealed to this court.

On February 7, 1984, a Motion to Withdraw Appeal was filed by Feliciano Navales

thru his counsel de officio, officially manifesting his voluntary decision to withdraw
his appeal in full awareness of his legal rights and the import of such a withdrawal.
We granted the motion in our resolution dated February 29, 1984. 4 Therefore, as
to him, the judgment has become final.
On the other hand, Bernido Detuya submitted his brief, as well as his reply brief,
(both prepared by his counsel de officio, Atty. Jejomar C. Binay), therein reciting
the errors allegedly committed by the lower court, to wit:chanrob1es virtual 1aw
library
1. THE TRIAL COURT GRAVELY ERRED IN GIVING UNDUE AND UNDESERVED
CREDENCE TO THE TESTIMONIES OF THE PROSECUTlONs WITNESSES,
PARTICULARLY BERNARDO JUMALON, ALEJANDRO LABANG AND GRACIANA
JUMALON, REGARDING THE IDENTIFICATION OF ACCUSED-APPELLANT BERNIDO
DETUYA AND THE COMMISSION OF THE ALLEGED RAPE, WHICH ARE REPLETE AND
SHOT THROUGH WITH GLARING INCONSISTENCIES, CONTRADICTIONS AND
IMPROBABILITIES;
2. THE LOWER COURT SERIOUSLY ERRED IN NOT GIVING CREDENCE TO ACCUSEDAPPELLANT BERNIDO DETUYAS DEFENSE OF DENIAL AND ALIBI IN THE FACE OF
THE WEAK, UNRELIABLE, INCONCLUSIVE AND DOUBTFUL EVIDENCE OF THE
PROSECUTION ON SAID ACCUSED-APPELLANTS IDENTIFICATION AND ON THE
COMMISSION OF THE RAPE.
3. THE COURT A QUO COMMITTED SERIOUS ERROR IN CONVICTING ACCUSEDAPPELLANT BERNIDO DETUYA OF THE CRIME OF ROBBERY WITH RAPE AND
SENTENCING HIM TO LIFE IMPRISONMENT. 5
After a careful assessment of all the evidence on record, we are impelled to affirm,
as we hereby affirm, the judgment of the trial court.
The following facts are established by the evidence on hand:chanrob1es virtual 1aw
library
At about 2 oclock in the morning of March 4, 1970 in Barrio Ditulan, Dumingag,
Zamboanga del Sur, Bernardo Jumalon was roused from his sleep by the barking of
dogs. He then lighted two lamps, one inside his room and another in the living
room, and proceeded to an adjoining portion of his house to relieve himself. Upon
reaching this extension of his house, Bernardo felt the presence of somebody in the
kitchen which made him nervous so that he returned to his room, lighted a cigar,
cleared his throat, and made some sounds. Feeling a bit braver, he went back to
urinate, but on the way he was met by five persons, the accused in this case, four
of whom were armed with hunting knives and one with a revolver. Bernardo
immediately recognized two faces those of Bernido Detuya and Feliciano Navales.
The accused pointed their knives at Bernardo, at the same time demanding to know
where his money was hidden. Denying that he had any money, Bernardo retreated
towards his room but he was blocked by Bernido Detuya. He stumbled and fell on
the floor. Thereupon he was made to lie flat on his stomach; his two hands were
tied at his back; and he was placed in a corner of the house. 6
Thereafter, the accused went inside the room where Bernardo Jumalons commonlaw wife, Indin Subana, and his four children were sleeping. After blindfolding Indin,
then only fourteen years young, appellant Bernido Detuya and Feliciano Navales
proceeded to rape her. Graciana Jumalon, a daughter of Bernardo Jumalon, who at
that time was only 15 years of age, was also raped by all five of the accused. 7
Subsequently, Graciana Jumalon was brought downstairs where a companion of the

accused also raped her. 8

Finally, the accused ransacked the house, getting P500 from the trunk, a wristwatch
worth P30.00, two rings worth P45.00, and three hens valued at P3.00 each. 9
Before fleeing, they warned Bernardo and his family not to shout otherwise they will
come back to kill all of them. 10
After the accused had gone, Bernardo wasted no time in reporting the incident to
the barrio captain, who promptly inspected the scene of the crime.
Upon the latters advice, Bernardo proceeded to the town proper and reported the
incident to the police authorities, who, after investigations, ordered the arrest of
Bernido Detuya and Feliciano Navales who were both identified to the police
authorities by the victims.chanrobles.com.ph : virtual law library
On that same day, Graciana Jumalon and Indin Subana were accompanied by
Bernardo Jumalon and Police Lt. Felipe Robles to the house of Dr. Tagaloguin where
both women underwent physical examination. The findings disclosed some
contusions in Gracianas vaginal wall and bleeding lacerations in her hymen.
Moreover, Dr. Tagaloguin was able to gather a whitish substance from her vagina
but which he was not able to examine under the microscope.chanrobles law
library : red
Like in the case of Graciana Jumalon, Dr. Tagaloguin also found some contusions
and whitish substance in Indins vaginal wall. 11
Anent his first assignment of error, the appellant argues that the testimonies of
Bernardo Jumalon, Alejandro Labang, and Graciana Jumalon are replete and shot
through with glaring inconsistencies, contradictions, and exaggerations and because
their testimonies constitute the only proof linking him to the crime charged,
accordingly, he deserves to be acquitted.
We do not agree.
Contrary to the appellants claims, he was categorically and unequivocably
identified by the three principal witnesses for the prosecution as being one of the
five persons who robbed and raped the victims.
The testimony of Graciana Jumalon reveals not only the fact of Bernidos presence
at the scene of the crime on that fateful morning but, even more importantly, the
extent of his participation therein. She explained that it was the appellant, in
particular, who tied her and demanded for their money; it was the appellant who
removed her panty and sexually abused her; and after all the other malefactors had
finished raping her, it was the appellant who brought her downstairs where she was
again raped by another of his companions; it was also the appellant who brought
her back uptairs and who warned her not to shout, otherwise she would be killed.
12
Bernardo Jumalons testimony complements and confirms the declarations of his
daughter Graciana. His recognition of the appellant as one of the perpetrators of the
crime is positive and absolute. He testified that the appellant, specifically, blocked
his path while he was retreating towards his room, and minutes later raped his wife
and daughter. 13
Confirming further the statements of Graciana and Bernardo, Alejandro Labang,
who was only eleven years old when he witnessed the commission of the dastardly
crime, testified that he recognized the appellant as being one among those who
entered his uncles house in the early morning of March 4, 1970. According to him,

the appellant and his companions took turns in raping Graciana after which the
appellant and Feliciano Navales raped Indin. 14
All these principal witnesses testified that after raping the women, the appellant
and his cohorts robbed them of cash and other belongings. All of them likewise
testified that even prior to the incident in question the appellant and Feliciano
Navales were already quite known to them by face as well as by name.chanrobles
law library
As explicitly stated by Alejandro Labang:chanrob1es virtual 1aw library
x

FISCAL FERNANDEZ: Since when did you come to know Bernido Detuya and Fely
Navales?
A I know two of them for a long time already.
Q Why do you know them?
A They usually go to the mountain because they have a farm there. 15
x

The appellant would want to impress upon us that it was impossible for these
prosecution witnesses to make an accurate identification of him because firstly, the
place was not illuminated, as shown by the absence of proof as to what kind of
lamps were used and when the lights were put out, and secondly, the culprits
admittedly blackened their faces.
There is no basis for these assertions. On the contrary, the testimony on crossexamination of Graciana Jumalon, which were corroborated by that of Alejandro
Labang during his own cross-examination, dispels any doubt on this score.
Thus:chanrob1es virtual 1aw library
ATTY. RAFOLS: Did you say that at the time you woke up and went out of your
room whether there was light in your room at that time?
GRACIANA: I can tell.
Q Please tell.
A Inside our house and inside our room there were lights.
Q What was the light inside your room when you said you woke up and stood up?
A It was a lamparahan.
Q And will you describe before this court what what do you mean by lamparahan?
A I can.
Q Please tell the court.A That is made of tube with wick.
Q Will you tell this court what was the tube made of?
A It is an empty can.

Q After the robbers left and they were already away, what did you do?
A Just before they left they put out the lights. 16
x

Admittedly, the culprits blackened their faces but apparently this camouflage did
not preclude the recognition of the appellant by his victims, who were already
accustomed to his facial features and mannerisms.
Besides, an aptly described by Graciana Jumalon: "I was able to recognize because
their faces were not so painted with dirts." 17
Equally without merit is the appellants contention that the commission of rape was
impossible under the facts narrated by the prosecution witnesses so that, in truth, it
was not satisfactorily established.
Although the room where the rapes were committed is quite small, around five
meters by five meters, it is, however, sufficient to accomodate four or five people
herded in one corner, plus two persons sprawled on the floor, and five others
standing. As stated by Graciana Jumalon:chanrob1es virtual 1aw library
x

ATTY. RAFOLS: And that you would like to impress upon this court that all these
persons concentrated at you without going to other places of your room, am I
right?
A When they took turns, (in raping me) I noticed that some of them were also
going around. 18
x

The appellant would have us believe that with this number of people inside the
room it is impossible to have sex with anybody because one would naturally feel too
self-conscious to have any erection, much less libido. But while that may be true to
a normal person, one with a criminal mind is so bereft of inhibitions or of any sense
of modesty or propriety as to be able, even if he wanted to, to depress a compelling
sexual urge for then he turns into a craving animal. The matter of decency would
surely be the least of the concerns of one who is capable of committing such
despicable crimes as robbery with force upon persons and multiple rape.chanrobles
law library
Neither is it so inconceivable for five men to rape a single woman in twenty-five
minutes, as argued by the appellant. As a matter of fact, it is quite possible for a
man in similar circumstances to consummate rape in one minute.
Additionally, the appellant insists that rape could not have been committed because
the legs of Graciana and Indin were tied as allegedly admitted by them. This
assertion is completely belied by the responses of Graciana to the questions
propounded by the court a quo, one of which would suffice to illustrate:chanrob1es
virtual 1aw library

COURT:chanrob1es virtual 1aw library

Q What do you mean, do you want to tell this court that at the time when Detuya
had sexual intercourse with you, your eyes were blindfolded and your legs were tied
together?
A No. 19
In the case of Indin, she explained how her legs were tied in a manner that could
not hinder, but could in fact facilitate, the commission of rape against
her:chanrob1es virtual 1aw library
x

FISCAL CADELINIA: Were your legs tied?

A They held my legs apart.
Q By the way, you feel it how many persons held your legs apart?
A My legal were tied with piece of cloth like this. (The witness demonstrated by
placing her legs apart whereas her feet are together.)
COURT:chanrob1es virtual 1aw library
Q What part of your legs were tied?
A My legs were tied to the bench.
Q Were your legs tied together or only one to the bench?
A Only one. 20
x

As pointed out by the appellant, there are, indeed, a few discrepancies and
inconsistencies in the testimonies of the witnesses for the prosecution.
Nevertheless, these are not of a nature and magnitude that would impair the
credibility of the said witnesses. The alleged inconsistencies refer to minor details
and "do not, in actuality, touch upon the basic aspects of the who, the how and the
when, of the crimes committed." 21 On the contrary, minor discrepancies in the
testimonies of two or more witnesses are but natural and would even enhance their
credibility as witnesses, because these indicate that the responses given were
honest and unrehearsed. 22
Furthermore, it is hard to believe that a woman would undergo the expense,
trouble, and inconvenience of a public trial, not to mention the scandal,
embarrassment, and humiliation it inevitably entails, and allow an examination of
her private parts, if her motive was not to bring to justice the person(s) who had
abused her. 23
Besides, the contusions and lacerations found inside Graciana and Indins sexual
organs confirm vividly their testimonies on their being raped. 24
The other eyewitness, fourteen-year old Alejandro Labang, (he was eleven years of
age when the crime was committed) had no reason to testify falsely against the
appellant, explicitly and implicitly accusing him of a capital offense. No ulterior

motive was imputed to him, and thus, the presumption is that he was not actuated
by improper motive and his testimony is entitled to full faith and
credit.25cralaw:red
Everything considered, there is no doubt in our mind of the truthfulness of the
testimonies of the three eyewitnesses. Equally, we are morally certain of the guilt of
the appellant from the evidence on record. Verily, the quantum of proof beyond
reasonable doubt has been fully satisfied in this case.
The second assignment of error pertains to the supposed error of the trial court in
not giving credence to the appellants defense of denial and alibi in the face of the
weak, unreliable, and inconclusive evidence of the prosecution. In the words of the
trial court:chanrob1es virtual 1aw library
The evidence for the accused Bernido Detuya shows that on March 4, 1970, the
said accused was in his house located at Mahayahay, Dumingag, Zamboanga del
Sur, with his wife and other persons whom they invited to attend the house warning
of their house which was newly finished; that after the house warning, there was a
dance and merry making in the house; that among the guests present were Nap
Nazareno, Gonzalo Gutano, Dalmacio Egot, Tunang Ebarle, Erenio Manada, Dodo
Rosal, Mrs. Rosal, Gerning Maglasan, Santos Salcedo, Pastor Hinoguin, Berting
Maglasan, Mrs. Maglasan, Jesus Baulos, Margarita Detuya, Pedro Manada and
others; that they served food to their visitors at about 9:00 oclock in the evening
and they finished eating at about 10:00 oclock; that the party ended at about
12:00 oclock at night and thereafter the accused Bernido Detuya who has drunk
more than enough asked permission to go to bed and left his wife to attend to his
guests; the accused further maintained that his wife is a school teacher and that he
is a farmer and it is impossible for him to have committed the crime charged at
2:00 oclock in the morning of May 4, 1970, considering that he was in the house at
Mahayahay asleep, which house is approximately three (3) kilometers to Ditulan
where the incident complained of took place; that the reason why he is charged as
an accused in this case is because sometime about the end of the year 1969, he
was about to box Bernardo Jumalon when Bernardo Jumalon and others were about
to box Feliciano Navales. 26
Well-settled is the rule that alibi as a defense is weak and that it cannot prevail over
the positive identification by the prosecutions witnesses of the accused as the
perpetrator of the crime especially when there was no physical impossibility for the
accused to be at the scene of the crime at the time of its commission. 27
It is not at all improbable that after the appellant excused himself from the party,
presumning arguendo that there really was one, he then proceeded with his
companions to the house of Bernardo Jumalon in Ditulan. Even if they travelled by
foot, it would not have taken them an hour to reach Ditulan which is only around
three kilometers from Mahayahay.
Furthermore, the motive that the appellant ascribes to Bernardo Jumalon which
is revenge, because sometime in 1969 the appellant was about to punch Bernardo
who, together with some others, were about to hit Feliciano Navales is too
shallow to be accorded credence. In the first place, the alleged "feud" was between
Bernardo and Feliciano, not the appellant he merely intervened. In the second
place, there were no actual exchange of blows. Since no harm came to Bernardo,
there is no reason to expect any kind of retaliation on his part, especially revenge
by falsely accusing the appellant of a very grave crime. The absurdity of such a
motive is only too apparent especially if we consider that by so falsely accusing the
appellant of said crimes Bernardo would be putting his own wife and daughter to
great shame and scandal before the public.chanrobles law library : red
The two witnesses, himself excluded, presented by the appellant contribute
practically nothing to strengthen his case. Rather, they succeeded only in

weakening his already weak alibi. The first witness is his wife; naturally, human
nature being what it is, she is expected to come to her husbands aid; hence, her
testimony, if at all, carries very little weight. The appellants second witness,
Dalmacio Egot, similarly testified on the facts constituting his alibi. However, in the
course of Dalmacios cross-examination, the prosecution was able to establish the
witness marked propensity to testify in all kinds of cases where he was not himself
directly involved as a party or as one who might suffer substantial injury from the
decision of the court. For this reason, Dalmacios credibility as a witness as well as
the "believability" of his testimony has been considerably impaired.
Further, "alibi is at best a weak defense and easy of fabrication especially between
parents and children, relatives, and even those not so related." 28
At any rate, these witnesses testimonies alone cannot overcome the weight of the
prosecution evidence clearly pointing to the appellant as one of the
culprits.chanrobles virtual lawlibrary
The appellants third assignment of error is a mere consequence of the first and
second.
From the facts established, we find the appellant guilty beyond reasonable doubt of
the crime of robbery with rape penalized under the provisions of Art. 294,
paragraph 2 of the Revised Penal Code, attended by the aggravating circumstances
of dwelling, nighttime, and ignominy. Band has been correctly appreciated by the
trial court only as a generic aggravating circumstance.
Nighttime is appreciated as an aggravating circumstance in that it facilitated the
commission of the crime. 29 As previously shown, the appellant and his
companions blackened their faces so that they could easily blend with the darkness
thereby making them even more indistinguishable.
Additionally, the aggravating circumstance of ignominy is present in this case
inasmuch as firstly, Indin Subana was raped in the presence of her husband,
Bernardo Jumalon, and secondly, Graciana Jumalon was successively raped by five
men these circumstances made the effects of the crime more humiliating. 30
Present, likewise, is the aggravating circumstance of dwelling, considering that the
crimes were committed in the home of the victims who have not given provocation
to the appellant and his cohorts.chanrobles virtual lawlibrary
In view of the presence of four aggravating circumstances without any mitigating
circumstance, the penalty imposed should have been death, which is the greater
penalty. However, in the light of the provisions of the 1987 Constitution 31
abolishing the death penalty, the imposable penalty on the appellant is reclusion
perpetua.
WHEREFORE, the judgment appealed from is hereby AFFIRMED with the
MODIFICATION that the indemnity is increased to TWENTY-FIVE THOUSAND
(P25,000) PESOS each to Indin Subana and to Graciana Jumalon. With costs
against the Appellant.
SO ORDERED.