G.R. No.

L-74324 November 17, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-
appellants.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellants.

MEDIALDEA, J.:

For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN
SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-
82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an information which
reads as follows:

That on or about May 19, 1982 at the town plaza of the Municipality of Rosario,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually helping and
assisting one another, with treachery and evident premeditation, taking advantage
of their superior strength, and with the decided purpose to kill, poured gasoline, a
combustible liquid to the body of Bayani Miranda and with the use of fire did then
and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani
Miranda which caused his subsequent death, to the damage and prejudice of the
heirs of the aforenamed Bayani Miranda.

That the crime was committed with the qualifying circumstance of treachery and
the aggravating circumstances of evident premeditation and superior strength, and
the means employed was to weaken the defense; that the wrong done in the
commission of the crime was deliberately augmented by causing another wrong,
that is the burning of the body of Bayani Miranda.

CONTRARY TO LAW (p. 1, Records).

Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial
court rendered a decision finding both accused guilty on the crime of murder but crediting in favor
of the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong,
the dispositive portion of which reads as follows:

WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y

Magdalena are pronounced guilty beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of Bayani Miranda, and
appreciating the aforestated mitigating circumstance in favor of Pugay, he is
sentenced to a prison term ranging from twelve (12) years of prision mayor, as
minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson
to suffer the penalty of reclusion perpetua together with the accessories of the law
 for both of them. The accused are solidarily held liable to indemnify the heirs of the
victim in the amount of P13,940.00 plus moral damages of P10,000.00 and
exemplary damages of P5,000.00.

Let the preventive imprisonment of Pugay be deducted from the principal penalty.

Cost against both accused.

SO ORDERED (p. 248, Records).

Not satisfied with the decision, both accused interposed the present appeal and assigned the
following errors committed by the court a quo:

1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF

ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS
ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A
COUNSEL DURING THE CUSTODIAL INVESTIGATION.

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY

THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE

TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY
SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48,
Rollo).

The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda
used to run errands for Pugay and at times they slept together. On the evening of May 19, 1982,
a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride
and one was a ferris wheel.

Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and
reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several
companions arrived. These persons appeared to be drunk as they were all happy and noisy. As
the group saw the deceased walking nearby, they started making fun of him. They made the
deceased dance by tickling him with a piece of wood.

Not content with what they were doing with the deceased, the accused Pugay suddenly took a
can of gasoline from under the engine of the ferns wheel and poured its contents on the body of
the former. Gabion told Pugay not to do so while the latter was already in the process of pouring
the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him.

The ferris wheel operator later arrived and doused with water the burning body of the deceased.
Some people around also poured sand on the burning body and others wrapped the same with
rags to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando Silangcruz and other police
officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who
were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and
Samson as the authors thereof.

The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police
officers brought Gabion, the two accused and five other persons to the Rosario municipal building
for interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the
two accused, after which Gabion was released. The two accused remained in custody.

After a careful review of the records, We find the grounds relied upon by the accused-appellants
for the reversal of the decision of the court a quo to be without merit.

It bears emphasis that barely a few hours after the incident, accused-appellants gave their written
statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured
a can of gasoline on the deceased believing that the contents thereof was water and then the
accused Samson set the deceased on fire. The accused Samson, on the other hand, alleged in
his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set
him on fire. Worthy of note is the fact that both statements did not impute any participation of
eyewitness Gabion in the commission of the offense.

While testifying on their defense, the accused-appellants repudiated their written statements
alleging that they were extracted by force. They claimed that the police maltreated them into
admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on
Gabion for the commission of the offense.

Thus, while it is true that the written statements of the accused-appellants were mentioned and
discussed in the decision of the court a quo, the contents thereof were not utilized as the sole
basis for the findings of facts in the decision rendered. The said court categorically stated that
"even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing
testimony which remains unaffected by the uncorroborated, self-serving and unrealiable
testimonies of Pugay and Samson" (p. 247, Records).

Accused-appellants next assert that the prosecution suppressed the testimonies of other
eyewitnesses to the incident. They claim that despite the fact that there were other persons
investigated by the police, only Gabion was presented as an eyewitness during the trial of the
case. They argue that the deliberate non- presentation of these persons raises the presumption
that their testimonies would be adverse to the prosecution.

There is no dispute that there were other persons who witnessed the commission of the crime. In
fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes
and one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of
gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in
open court. They were listed as prosecution witnesses in the information filed. Considering that
their testimonies would be merely corroborative, their non-presentation does not give rise to the
presumption that evidence wilfully suppressed would be adverse if produced. This presumption
does not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil.
797).<re||an1w> Besides, the matter as to whom to utilize as witness is for the prosecution to
decide.
Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was
the latter requested by the mother of the deceased to testify for the prosecution in exchange for
his absolution from liability but also because his testimony that he was reading a comic book
during an unusual event is contrary to human behavior and experience.

Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify
and state the truth about the incident. The mother of the deceased likewise testified that she never
talked to Gabion and that she saw the latter for the first time when the instant case was tried.
Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other
accused Samson testified that they had no previous misunderstanding with Gabion. Clearly,
Gabion had no reason to testify falsely against them.

In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline
on the deceased and then Samson set him on fire is incredible, the accused-appellants quote
Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on the
deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was
on fire that he noticed a commotion.

However, explaining this testimony on re-direct examination, Gabion stated:

Q. Mr. Gabion, you told the Court on cross-examination that you

were reading comics when you saw Pugay poured gasoline unto
Bayani Miranda and lighted by Samson. How could you possibly
see that incident while you were reading comics?

A. I put down the comics which I am reading and I saw what they
were doing.

Q. According to you also before Bayani was poured with gasoline

and lighted and burned later you had a talk with Pugay, is that
correct?

A. When he was pouring gasoline on Bayani Miranda I was trying

to prevent him from doing so.

Q. We want to clarify. According to you a while ago you had a talk

with Pugay and as a matter of fact, you told him not to pour gasoline.
That is what I want to know from you, if that is true?

A. Yes, sir.

Q. Aside from Bayani being tickled with a stick on his ass, do you
mean to say you come to know that Pugay will pour gasoline unto
him?

A. I do not know that would be that incident.

Q. Why did you as(k) Pugay in the first place not to pour gasoline
before he did that actually?
 A. Because I pity Bayani, sir.

Q. When you saw Pugay tickling Bayani with a stick on his ass you
tried according to you to ask him not to and then later you said you
asked not to pour gasoline. Did Pugay tell you he was going to pour
gasoline on Bayani?

A. I was not told, sir.

Q. Did you come to know..... how did you come to know he was
going to pour gasoline that is why you prevent him?

A. Because he was holding on a container of gasoline. I thought it

was water but it was gasoline.

Q. It is clear that while Pugay was tickling Bayani with a stick on his
ass, he later got hold of a can of gasoline, is that correct?

A. Yes, sir.

Q. And when he pick up the can of gasoline, was that the time you
told him not to pour gasoline when he merely pick up the can of
gasoline.

A. I saw him pouring the gasoline on the body of Joe.

Q. So, it is clear when you told Pugay not to pour gasoline he was
already in the process of pouring gasoline on the body of Bayani?

A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).

It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion
stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw
Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay
was in the process of pouring the gasoline on the body of the deceased when Gabion warned him
not to do so; and that Gabion later saw Samson set the deceased on fire.

However, there is nothing in the records showing that there was previous conspiracy or unity of
criminal purpose and intention between the two accused-appellants immediately before the
commission of the crime. There was no animosity between the deceased and the accused Pugay
or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the
accused Pugay and his group merely wanted to make fun of the deceased. Hence, the respective
criminal responsibility of Pugay and Samson arising from different acts directed against the
deceased is individual and not collective, and each of them is liable only for the act committed by
him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).

The next question to be determined is the criminal responsibility of the accused Pugay. Having
taken the can from under the engine of the ferris wheel and holding it before pouring its contents
on the body of the deceased, this accused knew that the can contained gasoline. The stinging
smell of this flammable liquid could not have escaped his notice even before pouring the same.
Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence
arising from any act that may be committed by his companions who at the time were making fun
of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide
through reckless imprudence defined in Article 365 of the Revised Penal Code, as amended.
In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:

A man must use common sense and exercise due reflection in all his acts; it is his
duty to be cautious, careful, and prudent, if not from instinct, then through fear of
incurring punishment. He is responsible for such results as anyone might foresee
and for acts which no one would have performed except through culpable
abandon. Otherwise his own person, rights and property, all those of his fellow-
beings, would ever be exposed to all manner of danger and injury.

The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four
(4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision
correccional, as maximum. With respect to the accused Samson, the Solicitor General in his brief
contends that "his conviction of murder, is proper considering that his act in setting the deceased
on fire knowing that gasoline had just been poured on him is characterized by treachery as the
victim was left completely helpless to defend and protect himself against such an outrage" (p.
57, Rollo). We do not agree.

There is entire absence of proof in the record that the accused Samson had some reason to kill
the deceased before the incident. On the contrary, there is adequate evidence showing that his
act was merely a part of their fun-making that evening. For the circumstance of treachery to exist,
the attack must be deliberate and the culprit employed means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without risk to himself arising from
any defense which the offended party might make.

There can be no doubt that the accused Samson knew very well that the liquid poured on the
body of the deceased was gasoline and a flammable substance for he would not have committed
the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be
conceded that as part of their fun-making he merely intended to set the deceased's clothes on
fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the
victim would cause at the very least some kind of physical injuries on his person, a felony defined
in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the
instant case, he must be held responsible therefor. Article 4 of the aforesaid code provides, inter
alia, that criminal liability shall be incurred by any person committing a felony (delito) although the
wrongful act done be different from that which he intended.

As no sufficient evidence appears in the record establishing any qualifying circumstances, the
accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of
the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary
mitigating circumstance of no intention to commit so grave a wrong as that committed as there is
evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified
that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn,
June 1, 1983, pp. 16-17).<re||an1w>
The proper penalty that the accused Samson must suffer is an indeterminate one ranging from
eight (8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as
maximum.

The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's
parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence,
the indemnity to the heirs of the deceased Miranda is increased to P43,940.00.

Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00
as moral damages and P5,000.00 as exemplary damages as found by the court a quo.

Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the
accused-appellants.

SO ORDERED.

Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

G.R. No. L-49430 March 30, 1982

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BELINDA LORA Y VEQUIZO alias LORENA SUMILEW, accused-appellant.

PER CURIAM:

The defendant Belinda Lora y Vequizo alias Lorena Sumilew was accused in the Court of First
Instance of Davao of serious illegal detention with murder in an amended information which reads
as follows:

The undersigned accuses the above-named accused of the crime of Serious Illegal Detention
with Murder under Art. 267 in relation to Articles 248 and 48 of the Revised Penal Code,
committed as follows:

That on or about May 28, 1976, in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the abovementioned accused being then a private person, wilfully, unlawfully
and feloniously and for the purpose of extorting ransom from spouses Ricardo Yap and Myrna
Yap, illegally detained their three (3) year old child Oliver Yap, a minor, from May 28 to 29, 1975
and with treachery, evident premeditation and with intent to kill wilfully, unlawfully and feloniously
attacked, assaulted Oliver Yap by tying his mouth with stocking, placing him inside a Pallmall
cigarette box, covering the said box with a mat and piece of sack and filing the same with other
boxes in the third floor (bodega) of the house owned by said spouses Ricardo Yap and Myrna
Yap, thereby inflicting upon said Oliver Yap the following to wit: Asphyxia due to suffocation"
which caused the death of said Oliver Yap.

That the commission of the foregoing offense was attended by the following aggravating
circumstances: (1) taking advantage of superior strength; (2) disregard of the respect due the
offended party on account of his age; (3) that the crime was committed in the dwelling of the
offended party; (4) that the crime was committed with abuse of confidence, she being a domestic
helper (maid) or obvious ungratefulness; (5) that craft, fraud and disguise was employed; and (6)
that the crime was committed with cruelty, by deliberately and inhumanly augmenting the suffering
of the victim.

Contrary to law.

According to the trial judge, "he has appointed as counsel de oficio Atty. Hildegardo Inigo a bar
topnotcher with considerable practice," in view of the gravity of the offense.

Upon motion of the counsel for the accused, the arraignment was postponed to enable him to
study the charge against the accused. Thereafter, after being arraigned, the accused Belinda
Lora in the presence and with the assistance of her counsel, entered a plea of guilty in Visayan
dialect, which is her native dialect.

The Court thereafter directed the prosecution to present its evidence and the counsel for the
"accused manifested that the evidence of the defense would be presented only for proving
mitigating circumstances.

Eight witnesses for the prosecution, namely: Myrna Yap, David Cortez, Fidencio Bisnar, Ricardo
Yap, Agaton Bonahos, Emmanuel Mesias, Rolando Estillori and Juan Abear, Jr. were presented.

The facts are undisputed.

On May 26, 1975, accused Belinda Lora using the name "Lorena Sumilew", applied as a
housemaid in the household of the spouses Ricardo Yap and Myrna Yap at 373 Ramon
Magsaysay Avenue, Davao City. The spouses had a store on the ground floor; a mezzanine floor
was used as their residence; while the third floor was used as a bodega for their stocks. They had
two children, Emily and Oliver Yap. Oliver was 3 years and five months old. 1

Belinda Lora was accepted as a housemaid in the residence of the Yaps and reported for work
the following day, May 27, 1975. Her duties were to wash clothes and to look after Oliver Yap. 2

On May 28, 1975, Mrs. Myrna Yap returned home from the market to find her mother-in-law and
her husband panicky because their son, Oliver, and the maid, accused Belinda Lora were missing.
The mother-in-law had found a ransom note at the stairway to the mezzanine floor. The note said
that Oliver was to be sold to a couple and that the writer (defendant herein) needed money for
her mother's hospitalization. 3 Four pieces of residence certificates were also found inside the
paper bag of the maid. One residence certificate bore the No. 1941785 with the name Sumiliw,
Lorena Pamintil. 4

The incident was reported immediately to the police. Mrs. Yap, accompanied by one Mrs. Erlinda
Velez, went to look for Oliver and the housemaid. Not finding them in Davao City, they went to
Digos and Bansalan (Davao) and looked in the hospitals there. The residence certificate in the
name of Lorena Sumiliw was issued in Digos and the ransom letter stated that the mother of the
defendant was very sick. 5

In the evening of May 28, 1975, the Yaps received two telephone calls at their residence. The first
call was received by Mrs. Yaps's mother-in-law while the second call was received by Ricardo
Yap. Lorena Sumiliw (defendant), the caller, instructed Ricardo Yap to bring the amount of
P3,000.00 to the island infront of the (Davao) Regional Hospital and to go there alone without any
policeman or companion, after which his son (Oliver) would be left to the security guard of the
hospital at the emergency exit. 6

The Yaps borrowed the amount of P3,000.00. Upon instructions of the NBI, the money was
marked with Mrs. Yap's initials "MY". 7

Ricardo Yap wrapped the P3,000.00 in a piece of paper and went to the Regional Hospital at 9:30
in the evening of May 28, 1975. He placed the money near the Imelda Playground. He proceeded
to the hospital and looked for his child from the security guard. However, the security guard said
nobody left a boy with him. 8 Ricardo Yap stayed at a corner looking and calling for his child but
could not locate him. After ten minutes, he went back to where he had placed the money but the
money was not there anymore. He waited until 11:00 o'clock, after which he went home. 9

The following morning, May 29, 1975, Mrs. Yap received a phone call from the accused informing
her that her son was at the Minrapco Terminal and that she was asking for another P 3,000.00.
Mrs. Yap proceeded to the terminal whereupon she learned that the terminal had moved to a
place near a theatre. When Myrna Yap arrived at the place, she saw the accused board a Minica
bus. She followed and grabbed the accused. 10 As the accused said that Mrs. Yap's son was
brought to the Regional Hospital they proceeded there. Upon arriving there, a couple, Mr. and
Mrs. Bonahos said that the Yap son was in Panacan. Mrs. Yap and the accused went to Panacan.
After arriving at Panacan the accused told Mrs. Yap that her son was in the custody of a woman
whom she paid P 100.00 and that the woman would return her son at 6:00 o'clock P.M. that day.
Mrs. Yap therefore, made the accused sign a promissory note that she would return Oliver on the
same day. 11 After the accused boarded a bus for Surigao, Mrs. Yap listed down the bus number
and the seat number and reported to Lt. Mesias of the Davao City Police Force that the
"kidnapper" was on board the Surigao bus. 12

Lt. Mesias stopped the bus and placed the accused under arrest. From the body of the accused
was taken an improvised pouch containing 36 pieces of P 50.00 bills and 24 pieces of P 20.00
bills. The money had initials reading "MY" below the serial numbers. 13

The following morning, May 30, 1975, upon waking up at around 6 o'clock in his house, Ricardo
Yap noticed that blood was dripping from the ceiling. He went upstairs, which was being utilized
as a bodega, to verify, and found his son placed inside the carton of Marlboro cigarettes. The
head of the child was inside the carton while his feet protruded outside. 14 His mouth was tied with
stockings. 15 The child was already dead. 16 He had died of "asphyxhia due to suffocation. 17

The defendant presented evidence only for the purpose of proving alleged mitigating
circumstances. She claims that she did not intend to kill the child. 18

To support her plea for mercy, she stated that she had three children aged from one to five years
whom she left in Pagadian. 19 On objection to the materiality of the evidence, the appellant's
counsel pleaded that she be allowed to prove those facts for "humanitarian consideration" which
might enable the Supreme Court to review the penalty with compassion. 20

The defendant capped her testimony with the following plea:

A I would request the Honorable Court that LIFE IMPRISONMENT

will be the penalty imposed upon me because I really committed the
crime. I did not really intend to kill the child.

Q Would you like to make any further appeal?

A I really repent to what I have done, sir. 21

On cross-examination, the defendant admitted that she gagged the child's mouth with stockings;
placed the child inside the box with head down and legs up; that she covered the box with some
sacks and boxes and left the child in that condition inside the storeroom of the house of Ricardo
Yap. 22

When the defendant left the store room, the voice of the child, who was previously shouting, "was
already slow and to make sure that his voice would not be heard I closed the door. 23

On the basis of the plea of guilt of the defendant and the evidence of the prosecution, the court
convicted the defendant with complex crime of serious illegal detention with murder and imposed,
among others, the extreme penalty of death.

Hence, this automatic review.

The guilt of the defendant is so patent that there is no further need to discuss the evidence. The
only task remaining after the plea of guilty and the presentation of the undisputed evidence for
the prosecution is to determine the crime committed, the penalty to be imposed and the
aggravating and mitigating circumstances to be appreciated. The crime actually committed is not
the complex crime of kidnapping with murder, as found by the trial court, but the simple crime of
murder qualified by treachery.

Kidnapping is a crime against liberty defined in Article 267, Title IX, Book 11 of the Revised Penal
Code. The essence of kidnapping or serious illegal detention is the actual confinement or restraint
of the victim or the deprivation of his liberty. 24

Where there is no showing that the accused intended to deprive their victims of
their liberty for some time and for some purpose, and there being no appreciable
interval between their being taken and their being shot from which kidnapping may
be inferred, the crimes committed were murder and frustrated murder and not the
complex crimes of kidnapping with murder and kidnapping with frustrated
murder. 25

In the instant case. the gagging of the child with stockings, placing him in a box with head down
and legs upward and covering the box with some sacks and other boxes were only the methods
of the defendant to commit murder. The child instantly died of suffocation. This is evident from
the testimony of Dr. Juan Abear, Jr. who performed the autopsy on May 30, 1975 at 8 o' clock in
the morning. When Dr. Abear conducted the autopsy, the body of the child was already in a state
of decomposition. Dr. Abear opined that the child must have died three days before the
autopsy. 26 In other words, the child died practically on the very day that the child was stuffed into
the box on May 28,1975.

The demand for ransom did not convert the offense into kidnapping with murder. The defendant
was well aware that the child would be suffocated to death in a few moments after she left. The
demand for ransom is only a part of the diabolic scheme of the defendant to murder the child, to
conceal his body and then demand money before the discovery of the cadaver.

There is treachery because the victim is only a 3-year old child. 27 The commission of the offense
was attended with the aggravating circumstances of lack of respect due to the age of the victim,
cruelty and abuse of confidence.

The circumstance of lack of respect due to age applies in cases where the victim is of tender age
as well as of old age. This circumstance was applied in a case where one of the victims in a
murder case was a 12-year-old boy. 28In the instant case, the victim was only 3 years old. The
gagging of the mouth of a three-year-old child with stockings, dumping him with head downwards
into a box, and covering the box with sacks and other boxes, thereby causing slow suffocation, is
cruelty. There was also abuse of confidence because the victim was entrusted to the care of the
appellant. The appellant's main duty in the household is to take care of the minor child. There
existed a relation of trust and confidence between the appellant and the one against whom the
crime was committed and the appellant made use of such relation to commit the crime.

When the killer of the child is the domestic servant of the family and was sometimes the deceased
child's amah the aggravating circumstance of grave abuse of confidence is present. 29

On the other hand, the defendant invokes the following as mitigating circumstances, namely; (1)
she pleaded guilty; (2) she did not intend to commit so grave a wrong, (3) she was overcome by
fear that her mother will die unless she is able to raise money for her mother's hospitalization,
thus; she committed kidnaping for ransom (4) the appellant should live so that her children who
are of tender years would not be deprived of a mother; and (5) we have a compassionate
society. 30

The only mitigating circumstance that may be appreciated in favor of the defendant is her
voluntary plea of guilt. Her contention that she had no intention to kill the child lacks merit. The
defendant was well aware that her act of gagging the mouth of the child with stockings, placing
him with head down and feet up in a box and covering the box with sacks and other boxes would
result to the instant suffocation of the child.

There being three aggravating circumstances, namely, lack of respect due to the tender age of
the victim, cruelty and abuse of confidence and only one mitigating circumstance in favor of the
defendant, she deserves the death penalty imposed upon her by the lower court.

WHEREFORE, the defendant is guilty beyond reasonable doubt of the crime of murder qualified
with treachery and appreciating the aggravating circumstances already indicated above, We
hereby impose the penalty of death with costs de oficio.

With this modification, the rest of the decision is hereby affirmed.

Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro, Melencio-
Herrera, Ericta, Plana and Escolin, JJ., concur.

Fernando, CJ., took no part.

Teehankee, J., concur in the result.

G.R. No. L-50905 September 23, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FRANCISCO JUMAWAN alias "KIKO", CESARIO JUMAWAN alias "SARIO", MANUEL
JUMAWAN alias "OWEL" and PRESENTACION JUMAWAN-MAGNAYE alias
"ESEN" accused-appellants.

ABAD SANTOS, J.:

On the basis of a written statement made by Vicente Recepeda on July 18, 1976, and an affidavit
executed by Trinidad Alcantara on July 19, 1976, a complaint for murder was filed in the Municipal
Court of Sariaya, Quezon, on July 19, 1976, by Station Commander Sisenando P. Alcantara, Jr.
against Francisco Jumawan, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan
for the death of Rodolfo Magnaye.

The affidavit of Trinidad Alcantara clearly states that her son Rodolfo Magnaye was married to
Presentacion Jumawan albeit they had been living separately from each other. (During the trial
Presentacion admitted her marriage to Rodolfo. See t.s.n., pp. 811-812.) The Station Commander
can perhaps be excused for not accusing Presentacion of parricide but when the case was
elevated to the Court of First Instance of Quezon where it was docketed as Criminal Case No.
1408, the Provincial Fiscal perpetuated the mistake by filing an information for murder against all
the accused. The information reads:

The undersigned Provincial Fiscal accuses CESARIO JUMAWAN alias 'Sario,'

MANUEL JUMAWAN alias 'Owel', FRANCISCO JUMAWAN alias 'Kiko' and
PRESENTACION JUMAWAN alias 'ESEN', of the crime of murder, defined and
punished under Article 248 of the Revised Penal Code, committed as follows:

That on or about the 19th day of June 1976, in the Municipality of Sariaya, Province
of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a bolo (gulukan), conspiring and confederating
together and mutually helping one another, with intent to kill and with evident
premeditation and treachery, taking advantage of their superior strength, did then
and there wilfully, unlawfully and feloniously attack, assault and stab with the said
bolo one Rodolfo Magnaye alias 'Digo', thereby inflicting upon the latter a stab
wound on the chest, which directly caused his death.
After a long trial and 1,211 pages of stenographic transcript, the trial court rendered the following
judgment:

Wherefore, the Court finds Cesario Jumawan, Presentacion Jumawan-Magnaye,

Manuel Jumawan, and Francisco Jumawan guilty as principals beyond reasonable
doubt of the crime of Murder as defined and punished under Art. 248 of the Revised
Penal Code and hereby sentences each of them to suffer a penalty of life
imprisonment and to indemnify jointly and severally the parents of the victim in the
amount of Twenty-four Thousand (P24,000.00) Pesos.

The case is now before this Court on appeal.

The brief of the appellants gives the following:

STATEMENT OF FACTS

The Accused:

Francisco Jumawan is the father of his co-accused, namely, Cesario Jumawan,

Manuel Jumawan and Presentacion Jumawan.

Presentacion Jumawan was married to Rodolfo Magnaye.

Death of Rodolfo Magnaye:

As described by the lower court, '... when Rodolfo Magnaye did not return home in
(that) evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public
market to look for him on the following day. She met four (4) children who told her
that they saw a man near the water. They accompanied her to the place and she
recognized the dead man as her son Rodolfo Magnaye. She then proceeded to
the police headquarters to report the matter. ...' (page 5, Judgment).

For the death of Rodolfo Magnaye, the accused stand charged of the crime of
MURDER.

The People's brief, on the other hand, merely reproduces the trial court's findings of facts as
follows:

It appears from the evidence adduced during the trial that Rodolfo Magnaye was
married on 26 January 1974 to Presentacion Jumawan, one of the accused in the
above entitled criminal case. Presentacion Jumawan-Magnaye left the conjugal
home and stayed with her sister Sebastiana Jumawan. Rodolfo Magnaye, on the
other hand, went and stayed with his mother Trinidad Alcantara.

The mother of Mrs. Presentacion Jumawan-Magnaye made several attempts to

secure the signature of Rodolfo Magnaye on a document agreeing to a separation
from his wife so that both he and his wife will be free to marry again but Rodolfo
Magnaye persisted in refusing to sign said document.
On one occasion the mother of Mrs. Presentacion Jumawan-Magnaye even
brought Rodolfo Magnaye and his mother to the Provincial Constabulary
Command to ask for the assistance of Sgt. Mortilla to assist her daughter in
securing a separation from Rodolfo Magnaye but they were told by Sgt. Mortilla
that it cannot be legally done.

Between 5:00 and 6:00 o'clock in the afternoon of 19 June 1976 while Trinidad
Alcantara was in her house, her son Rodolfo Magnaye was dressing up and told
her that he was going to the public market because his wife asked him to fetch her.
He asked his mother to prepare food because they are going to talk about their
lives. He left home at about 6:00 o'clock in the evening.

At about 9:30 o'clock in the evening of 19 June 1976 one Mr. Vicente Recepeda
came from the Aglipayan fiesta in Sariaya, Quezon and after eating at the Sariling
Atin eating place he went to the former BLTB station at Sariaya, Quezon. While he
was infront of the public market on the way to the former BLTB station he heard
the noise of pigs being butchered and being in the business of buying pigs and
chicken he went to the direction of [the] slaughter house to inquire about the prices
of pigs and chicken.

Before reaching the slaughter house he heard the noise (sic) of a person being
attacked by three (3) persons and a woman inside a store which was lighted. He
saw accused Francisco Jumawan holding the hands of Rodolfo Magnaye while
accused Manuel Jumawan was behind Rodolfo Magnaye with his arm around the
neck of Rodolfo Magnaye while Cesario Jumawan was infront of Rodolfo Magnaye
with his left hand holding the collar of Rodolfo Magnaye and in his right hand he
was holding a small pointed bolo with which he stabbed Rodolfo Magnaye below
the right nipple.

At about 11:00 o'clock in that evening a certain Mr. Policarpio Trinidad who also
came from the Aglipayan fiesta in Sariaya, Quezon was waiting infront of a
gasoline station across the old station of the BLTB waiting for a ride home when
he saw Cesario Jumawan and Manuel Jumawan with Rodolfo Magnaye between
them while they were crossing the national highway towards the south to a road
opposite the Emil Welding Shop. They went on walking after crossing the highway.
At that time the head of Rodolfo Magnaye was bowed infront while his two (2) arms
were on the shoulder of Cesario and Manuel Jumawan. Rodolfo Magnaye was not
walking.

At about 11:45 o'clock in the evening of 19 June 1976 Presentacion Jumawan-

Magnaye reported to Patrolman Marcial Baera and Patrolman Albufera that the
store of Bastiana (Sebastiana) Jumawan where she works is threatened to be
robbed by Rodolfo Magnaye. When asked by Patrolman Baera Presentacion
Jumawan-Magnaye denied being related to Rodolfo Magnaye. He went to
investigate the reported attempt to rob the store of Sebastiana Jumawan and he
saw one of the panels used to close the store was destroyed but nothing appears
to have been taken from the store.

Presentacion Jumawan-Magnaye and her companions Tita Daez and Anabelle

Jumawan told Patrolman Baera that they will file charges against Rodolfo
Magnaye. Patrolman Baera entered the report of Presentacion Jumawan-
Magnaye in the police record book.

When Rodolfo Magnaye did not return home in that evening of 19 June 1976, his
mother (Trinidad Alcantara) went to the public market to look for him on the
following day. She met four (4) children who told her that they saw a man near the
water. They accompanied her to the place and she recognized the dead man as
her son Rodolfo Magnaye. She then proceeded to the police headquarters to
report the matter.

The two Patrolmen Baera and Albufera went to the place and they saw the dead
man without a shirt and wearing black pants with white shoes. They noticed a stab
wound on the lower portion of the right breast. The dead man was lying face up.

In the afternoon of the same day Patrolman Loreto Galeon went to the store of
Sebastiana Jumawan located at the public market of Sariaya to follow up the
investigation of the reported attempted robbery case against Magnaye. He asked
the storekeeper for permission to look at the wood panels which are used to close
the store. He found traces of blood in one of the wooden panels. He reported what
he saw to Sgt. Labitigan when he returned to the police headquarters.

The following day he was ordered by the chief of police to look again at the wooden
panel with traces of blood but he saw that the wooden panels were already planed
('kinatam') and the traces of blood could no longer be seen.

On 23 June 1976, Patrolman Rodrigo Cedonio was ordered to look for Tita Daez
in Barrio Mamala Sariaya, Quezon because Tita Daez was allegedly in the store
at the time of the alleged attempted robbery and at the time Rodolfo Magnaye was
allegedly killed.

Patrolman Cedonio was informed by the mother of Tita Daez that she had not
gone to her home at barrio Mamala. She accompanied Patrolman Cedonio in trying
to locate Tita Danez. They first went to the store of Sebastiana Jumawan which
turned out to be closed on that day. They then went at Muntingbayan, Tayabas,
Quezon where they were able to find Tita Danez together with Francisco
Jumawan, Bienvenido Jumawan and Rosita Abratiga.

Mr. Cesario Jumawan, one of the accused in the above entitled criminal case and
a brother-in-law of the victim, set up the defense of alibi when he testified that
between 3:00 and 4:00 o'clock in the afternoon of 19 June 1976 he was at Barrio
Sampaloc, Sariaya, Quezon which is more or less three (3) kilometers away from
the poblacion of Sariaya, Quezon. He went home to Barrio Pili of the same town
early in the afternoon of the following day. He did not go anywhere else since 3:00
to 4:00 o'clock in the afternoon of 19 June 1976 up to and until he returned to
Barrio Pili.

Mr. Manuel Jumawan, another accused in the above entitled criminal case who is
also a brother-in-law of the victim, likewise set up the defense of alibi when he
testified that on 19 June 1976 he was in his house at Barrio Pili, Sariaya, Quezon
which is about five (5) kilometers from the poblacion of Sariaya, Quezon. He went
to bed at about 7:00 o'clock in the evening of 19 June 1976. He woke up at about
6:30 o'clock in the morning.

He further claims that he suffers from an abnormality of the left arm which he
cannot raise in a normal way and that he was suffering from said disability since
childhood when he fell from a cow continuously up to the present.

Said accused presented a medical certificate, Exhibit 7, issued by Dr. Concepcion

dela Merced, a radiologist of the National Orthopedic Hospital certifying to the fact
that Manuel Jumawan is negative for fracture dislocation and that he suffers from
a deformity of the proximal and left humerous probably from a previous fracture.
There is no showing that Manuel Jumawan is incapable of raising his left arm
around the neck of Rodolfo Magnaye whose actual height was not established by
the evidence nor was Dr. Concepcion dela Merced presented to testify on her
findings.

Presentacion Jumawan-Magnaye claims that in the evening of 19 June 1976 she

was in the store of Sebastiana Jumawan together with Anabelle Jumawan and Tita
Daez when she heard a person who wanted to enter the store. She shouted
'thieves' ('magnanakaw'). In response to her shouts several people arrived and
chased the person who wanted to enter the store. She then went to the house of
Sebastiana Jumawan where hats are being made and where her father Francisco
Jumawan was staying that night.

While she was in the house where her father was staying, their adjoining neighbor,
a certain Mateo Diamante informed her that the person being chased by several
men was Rodolfo Magnaye. She, however, did not talk with any of the person who
chased her husband nor does she know any of them. She then went with her
father, Francisco Jumawan, to report the matter to the police whom they met at the
Filipina Restaurant.

While Presentacion Jumawan-Magnaye gave the name of Rodolfo Magnaye as

the suspect in the attempted robbery, she did not reveal to the investigating
policemen that he was her husband even if she was asked why they knew his
name, neither did she inform the police that her husband was chased by several
persons nor did she give the direction where her husband supposedly ran.

The two policemen, Patrolmen Baera and Albufera, actually went to the store of
Sebastiana Jumawan and after looking at the store, these two patrolmen told
Presentacion Jumawan-Magnaye that because nothing happened they will
continue the investigation on the next day.

None of those who allegedly chased her husband that evening was even
presented as a witness.

Mr. Francisco Jumawan, who is the father of his three (3) other co-accused,
likewise set up the defense of alibi when he testified that in the evening of 19 June
1976 at about 8:00 o'clock more or less he was alone in the house of Sebastiana
Jumawan situated near the former garage of the BLTB in Sariaya, Quezon and
 that he was awakened only when his daughter Presentacion woke him up to ten
him that someone was trying to enter the store of Sebastiana Jumawan.

In a brief which is more noteworthy for legal rhetoric rather than a critical analysis of the evidence,
the appellants claim that the trial court committed the following errors:

THE LOWER COURT ERRED IN NOT FOCUSING OBJECTIVELY AND

IMPARTIALLY THE EVIDENCE FOR THE PROSECUTION EVEN AS IT
FOCUSED SUBJECTIVELY AND UNFAIRLY ON SUPPOSED WEAKNESS OF
THE EVIDENCE FOR THE DEFENSE.

THE CONSTITUTIONAL GUARANTEE THAT THE ACCUSED ARE PRESUMED

INNOCENT OF THE CRIME CHARGED AND ARE ENTITLED TO A RIGHT TO
A DAY IN COURT CANNOT BE OVERTURNED BY THE DOCTRINE THAT
APPELLATE COURTS ARE NOT PRONE TO DISTURB THE FINDINGS OF THE
TRIAL COURT WITH RESPECT TO THE CREDIBILITY OF WITNESSES.

THE LOWER COURT ERRED IN NOT FINDING AND TAKING INTO SERIOUS
ACCOUNT THE FATAL WEAKNESSES OF THE EVIDENCE FOR THE
PROSECUTION IN TERMS OF IMPROBABILITIES, GROSS
INCONSISTENCIES AND IRRECONCILABLE CONTRADICTIONS.

THE LOWER COURT ERRED IN GIVING CREDIT AND CREDENCE TO THE

TESTIMONIES OF THE STAR PROSECUTION WITNESS CONSIDERING THE
GLARING WEAKNESS THEREOF, EVEN AS THE LOWER COURT
CONVENIENTLY DENIED THE DEFENSE REASONABLE OPPORTUNITY OF
THE PROSECUTION WITNESSES.

THE LOWER COURT ERRED IN ITS ERRONEOUS APPROACH TO AND

APPLICATION OF THE PRINCIPLES CONCERNING THE DEFENSE OF ALIBI
IN THE CASE AT BAR. SPECIALLY IN THE LIGHT OF THE FACT THAT THERE
WAS NO POSITIVE IdENTIFICATION OF ACCUSED AND ALSO THAT THE
PROSECUTION FAILED TO EFFECTIVELY REBUT THE DEFENSES OF ALIBI
WHICH WOULD HAVE BEEN EASY TO DO IF SUCH DEFENSES WERE
REALLY CONCOCTIONS.

The foregoing assignment of errors can be reduced to the simple proposition whether the
evidence against the accused, independent of their alibis, has overcome the presumption of
innocence in their favor and created a moral certainty as to their guilt.

Except for Vicente Recepeda and Policarpio Trinidad, the appellants do not question the
credibility of the witnesses for the prosecution. Hence, the testimony of these witnesses deserves
scrutiny.

Vicente Recepeda was 67 years old, jobless and a resident of Lucena City when he first testified
on April 29, 1977. He testified that on June 19, 1976, he went to Sariaya, Quezon, to attend the
Aglipayan fiesta; he arrived there at about 5:00 o'clock and thereafter did the following: listened
to the music and singing, went to the Aglipayan church and the "perya," ate at a restaurant, and
walked to the public market where there was a former BLTB station. While he was waiting for a
trip to Lucena, he heard the shriek of pigs being killed so he walked toward the butchers for the
purpose of asking the price of pigs since he was then engaged in the business of buying and
selling pigs. In fact, at one time Rodolfo Magnaye, the deceased, tied the feet of a pig which he
had bought. He was not able to talk to the butchers because an unusual event intervened which
in his own words was:

Q. At about 9:30 o'clock in the evening of June 19, 1976, do you

remember where were you?

A. Yes sir.

Q. Where were you on that particular date and hour?

A. I was in the public market of Sariaya, Quezon, sir.

Q. While you were in the market of Sariaya, Quezon, on that

particular date and hour, do you remember if there was any unusual
incident that you witnessed?

A. There was, sir.

Q. What was that unusual incident that happened on that particular

place and hour?

A. I saw a person being attacked by three persons, sir.

Q. What else did you see there on that particular occasion, aside
from a person being attacked by three persons?

A. There was a woman who ordered the three persons to stab and
kill the person being attacked by these three persons, sir.

Q. Where in particular in the public market of Sariaya, Quezon did

you see this incident happen?

A. Inside the store within the public market of Sariaya, Quezon, sir.

Q. Did you recognize, or did you come to know these three persons
whom you said were inside the store within the public market of
Sariaya, Quezon at about 9:30 o'clock in the evening of June 19,
1976?

A. I recognize their faces, sir.

Q. Did you come to know their names later on?

A. Yes sir.

Q. What is the name of the woman whom you said was there on
that particular occasion?
 A. Presentacion Jumawan, sir.

Q. If you will see that Presentacion Jumawan again, will you be able
to Identify her?

A. Yes, sir.

Q. Will you please look around the courtroom and point to

Presentacion Jumawan if she is here.

A. She is here sir.

Q. Please point her out to this Honorable Court.

A. That one sir.

ATTY. ALCALA:

May we respectfully ask if your honor please that the person pointed to by the
witness Identify herself.

COURT:

Ask the person to Identify herself.

INTERPRETER:

What is your name?

A. Presentacion Jumawan.

INTERPRETER:

The person pointed to by the witness your honor, Identified herself

as Presentacion Jumawan.

ATTY. ALCALA:

And what is the name of the person whom you said was being
attacked by the three men on that particular occasion inside the
store?

A. Rodolfo Magnaye, sir.

Q. And what are the names of the three persons attacking Rodolfo
Magnaye, will you please state it before this Honorable Court?

A. Yes, sir, one is Francisco Jumawan, Manuel Jumawan and the

other one is Cesario Jumawan.
Q. That Francisco Jumawan whom you said was one of the persons
attacking Rodolfo Magnaye, on that particular occasion, will you be
able to recognize him if you will see him again?

A. Yes, sir.

Q. If this Francisco Jumawan is inside the courtroom, will you

please point him out before this Honorable Court?

A. Yes, sir.

Q. Please do so.

A. That one sir.

ATTY. ALCALA:

Your honor please may we ask that the person pointed to by the
witness Identify himself.

COURT:

Ask the Identity of the person pointed to by the witness.

INTERPRETER:

What is your name?

A. Francisco Jumawan.

INTERPRETER:

The person pointed to by the witness your honor Identify himself as

Francisco Jumawan.

Q. And that person whom you said the name as Manuel Jumawan
will you be able to recognize him if you will see him again?

A. Yes, sir.

Q. Please look around the courtroom and point out to this

Honorable Court if Manuel Jumawan is here inside the courtroom.

A. Yes, sir, that one.

ATTY. ALCALA:

May we ask Your Honor that the person pointed to by the witness
be made to Identify himself.
COURT:

Ask the person pointed to by the witness to Identify himself.

INTERPRETER:

What is your name?

A. Manuel Jumawan.

INTERPRETER:

The person pointed to by the witness Your Honor Identified himself

as Manuel Jumawan.

Q. And that person whom you mentioned is named Cesario

Jumawan, will you be able to Identify him if you will him again?

A. Yes, sir.

Q. Please look around the courtroom and point to this Honorable

Court the person whom you said is Cesario Jumawan.

That one sir.

ATTY. ALCALA:

May we request your honor that the person pointed to by the

witness Identify himself.

COURT:

Ask the person pointed to by the witness to Identify himself.

INTERPRETER:

What is your name?

A. Cesario Jumawan.

INTERPRETER:

The person pointed to by the witness Identify himself as Cesario

Jumawan Your Honor.

Q. On that occasion what was Francisco Jumawan doing at that

time you saw him?
A. He was standing besides Rodolfo Magnaye and holding his
hands.

Q. Who was holding his hands?

A. Francisco Jumawan was holding the hands of Rodolfo Magnaye,

sir.

Q. How about Manuel Jumawan, what was he doing?

A. Manuel Jumawan was at the back of Rodolfo Magnaye with his

arm around the neck of Rodolfo Magnaye, sir.

Q. How about Cesario Jumawan what was he doing on that

particular occasion?

A. He was in front of Rodolfo Magnaye, his left hand is holding the

collar of Rodolfo Magnaye and his right hand holding a bolo, sir.

Q. How about Presentacion Jumawan, what was she doing on that

particular occasion?

A. She was standing inside the store ordering the three persons to
stab and kill Rodolfo Magnaye, sir.

Q. What happened when Presentacion Jumawan give that order?

A. Rodolfo Magnaye was stabbed, sir.

Q. Who stabbed Rodolfo Magnaye on that occasion?

A. Cesario Jumawan, sir.

Q. At that time that Cesario Jumawan stabbed Rodolfo Magnaye

on that particular occasion, what were Francisco Jumawan and
Manuel Jumawan doing.?

A. Francisco Jumawan was holding the hands of Rodolfo Magnaye

with his arms around the neck of Rodolfo Magnaye, sir.

Q. What happened to Rodolfo Magnaye when he was stabbed by

Cesario Jumawan on that occasion?

A. He was hit by the stab, sir.

Q. Where was Rodolfo Magnaye hit by the stab of Cesario

Jumawan on that occasion?

A. Under the right nipple, sir. Below the right nipple.

 Q. What did Rodolfo Magnaye do on that particular occasion after
he was hit?

A. He said, why did you stab me.

Q. What did you do after that?

A. I left, sir.

Q. While you were walking away did you hear anything?

.A. Yes, sir.

Q. What did you hear?

A. A voice of a woman shouting, thief, thief.

Q. What did you do when you heard the shout of a woman?

A. I hurriedly walked away, sir.

Q. Did you finally came to know what happened to Rodolfo

Magnaye as a result of that incident?

A. Yes, sir.

Q. What happened to him?

A. He died, sir. (t.s.n., pp. 494-509.)

Policarpio Trinidad was 28 years old and a laborer at the time he first testified on June 27, 1977.
He testified that he knew Manuel Jumawan, Cesario Jumawan and Rodolfo Magnaye; that on
June 19, 1976, at about 11:00 p.m., he was in Sariaya, Quezon, near the old station of the BLTB;
and on that occasion he saw the aforesaid persons thus:

Q. Will you please describe before this Honorable Court their

position when you saw them?

A. Their hands were on the shoulders of each other.

Q. And who was in the middle?

A. Rodolfo Magnaye, sir.

Q. Will you please tell this Honorable Court the appearance of

Rodolfo Magnaye when you saw him being in the middle of Cesario
Jumawan and Manuel Jumawan on that occasion?
 A. His head falls and his two hands were on the shoulder of Cesario
Jumawan and Manuel Jumawan.

Q. Did you see where these persons were going on that particular
occasion when you said you saw them?

ATTY. CUARTOY

Objection Your Honor, that has already been answered, that they
are going out of the old BLTB station.

COURT:

Witness may answer.

A. They cross the highway, sir.

Q. In what particular place did they go when they cross the

highway?

A.. They went to the road opposite the Emil Welding Shop, sir.

Q. Did you see on that particular occasion whether Rodolfo

Magnaye was walking?

A. He was not walking and he cannot step his feet, sir.

Q. When they went to that place, near the Emil Welding Shop, did
they go any further?

A. They proceeded walking, sir.

Q. Where did you go upon seeing them?

A. I went directly to my house, sir.

(t.s.n., pp. 628-631.)

The testimony of Vicente Recepeda linked to that of Trinidad Alcantara and Policarpio Trinidad
shows that the four appellants conspired and cooperated in the assassination of Rodolfo
Magnaye.

The victim and his wife had a rendezvous in the evening of June 19, 1976, in order to discuss the
fate of their marriage. While it is not known if they actually conversed, the purpose of the
rendezvous was in fact accomplished; the marriage was terminated by the murder of the husband.

The report to the police by Presentacion that Rodolfo Magnaye had attempted to rob the store of
Sebastiana Jumawan was a crude diversionary tactic to enable Cesario and Manuel to transfer
the cadaver to another place.
The alibis of Francisco, Cesario and Manuela are for naught.

Francisco claimed that in the evening of June 19, 1976, he was in the house of Sebastiana
Jumawan, not in her store. Cesario said that while his residence was Barrio Pili, Sariaya, on the
night of June 19, 1976, he and his wife were in Barrio Sampaloc, Sariaya, visiting his brother
Benigno Jumawan and they did not return to Pili until the next day. Manuel said that on the night
of June 19, 1976, he was in his house at Barrio Pili.

These alibi cannot prevail for the following reasons: (a) Francisco, Cesario and Manuel were
positively Identified to be at the scene of the crime by Vicente Recepeda and Cesario and Manuel
were similarly Identified by Policarpio Trinidad; and (b) the places where they claimed to be were
not far from the scene of the crimeso that it was not impossible fro them to be there. Sebastiana
Jumawan's house where Francisco was supposed to be is within walking distance from the
former's store. Barrio Sampaloc, where Cesario claimed he was, is only about three kilometers
from the poblacion of Sariaya. Barrio Pili, where Manuel said he slept that night, is about five
kilometers from the same poblacion.

Presentacion should have been accused of parricide but as it is, since her relationship to the
deceased is not alleged in the information, she, like the others, can be convicted of murder only
qualified by abuse of superior strength.

Although not alleged in the information, relationship as an aggravating circumstance should be

assigned against the appellants. True, relationship is inherent in parricide, but Presentacion
stands convicted of murder. And as to the others, the relationships of father-in-law and brother-
in-law aggravate the crime. (Aquino, Penal Code, Vol. I. p. 406 [1976].)

The penalty for murder with an aggravating circumstances is death. However, for lack of
necessary votes, the penalty is reduced to reclusion perpetua.

WHEREFORE, the jugment of the court a quo is hereby affirmed in toto. No costs.

SO ORDERED.

G.R. No. 78781-82 October 15, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN,
NICOLAS GUADALUPE AND HERMIE PAHIT, accused-appellants.

The Solicitor General for plaintiff-appellee.

Robert J. Landas for acussed-appellants.

GUTIERREZ, JR., J.:

The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas Guadalupe and
Hermie Pahit appeal the two (2) judgments of the Regional Trial Court of Tandag, Surigao del
Sur, Branch 27, which convicted them of murder of one Reynaldo Cabrera Gaurano and of
frustrated murder of Joey Lugatiman.

In the murder case (Criminal Case No. 1187), each of the accused was sentenced to serve the
penalty of reclusion perpetua and to severally pay an indemnity of P25,000.00 to the mother of
the victim. In the frustrated murder case (Criminal Case No. 1194), each of them was sentenced
to serve the penalty of imprisonment ranging from eight (8) years and one (1) day of prision
mayor as minimum to ten (10) years of prision mayor as maximum.

The accused were all charged with kidnapping with murder and kidnapping with frustrated murder.
However, the trial court found accused-appellants guilty only of murder and frustrated murder as
convicted. The accused Josen Ravelo and Jerry Ravelo are still at large.

The present petition was originally one that sought the issuance of a writ of habeas corpus. The
Court instead resolved to treat it as an appeal in view of the near capital nature of the crimes for
which the appellants were convicted.

The accused-appellants are all membersof the Civilian Home Defense Force (CHDF) stationed
at a checkpoint near the airport at Awasian in Mabua, Tandag,Surigao del Sur. The prosecution
alleged that they stopped the two (2) victims for questioning on the suspicion that the latter were
insurgents or members of the New People's Army. (NPA).

In Criminal Case No. 1187, the accused-appellants were charged with having committed
kidnapping with murder in the following manner:

That at approximately 6:30 o'clock in the evening, May 21, 1984, in Barangay Dawis, San
Agustin Sur, municipality of Tandag, province of Surigao del Sur, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, PEDRO RAVELO,
JERRY RAVELO, BONIFACIO `Patyong' PADILLA, ROMEO ASPIRIN, NICOLAS
GUADALUPE, HERMIE PAHIT and JOSEN RAVELO, conspiring, confederating, and
mutually helping each other did, then and there, wilfully, unlawfully and feloniously take,
pick-up, kidnap by meansof force, one REYNALDO CABRERA GAURANO, a minor, while
the latter was walking along Tandag Bridge at barangay Dawis, San Agustin Sur, then the
above-named accused carried away the said, Reynaldo Cabrera Gaurano to barangay
Awasian and detained, kept and locked him in a room at the house of Pedro Ravelo, one
of the accused herein, from 7:00 o'clock in the evening, May 21, 1984 to 4:00 o'clock
dawn, May 22, 1984, or a period of 10 hours under restraint and against the will of said
minor, Reynaldo Cabrera Gaurano and that the above named accused during the said
period of kidnapping, maltreated and refused to release said Reynaldo Cabrera Gaurano,
and while on the same period of time at about 4:00 o'clock dawn, May 22, 1984, at
barangay Awasian, Tandag, Surigao del Sur and within the jurisdiction of this Honorable
Court, the above-named accused, Pedro Ravelo, Jerry Ravelo, Bonifacio `Patyong'
Padilla, Romeo Aspirin, Nicolas Guadalupe, Hermie Pahit, and Josen Ravelo, conspiring,
confederating, and mutually helping each other, armed with a pistol, armalites, and
carbines, with intent to kill, with treachery and evident premeditation did, then and there
wilfully, unlawfully and feloniously, assault, attack, cut, slash, and burn, the said Reynaldo
Cabrera Guarano, hitting and inflicting upon the latter, the following wounds or injuries:
 1. Blisters formation noted all over the body reddish in color, which easily peel off on
pressure; containing clear fluids; with hemorrhagic reaction beneath blisters;

2. Swollen face with contusion and hematoma formation; loosening of hair notes; right ear
missing with circular incised wound around;

3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx, arteries
and veins; up to the 2nd cervical bone in depth;

4. Contusions and hematomas noted anterior chest wall, abdomen and at the back; upper
and lower extremeties of different sizes and forms. (Rollo, pp. 8-9)

In Criminal Case No. 1194, they werecharged with kidnapping with frustrated murder committed
as follows:

That on or about 1:00 o'clock in the morning on May 22, 1984 in barangay Awasian,
municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction
of this Honorable Court, the above named accused PEDRO RAVELO, HERMIE PAHIT,
BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, JERRY RAVELO
AND JOSEN RAVELO, conspiring, confederating and mutually aiding one another armed
with the deadly weapons such as pistols, armalite and carbine, did then and there wilfully,
unlawfully and feloniously by means of force and at gun point stop the hauler truck of the
South Sea Merchant Company which was on the way to Tandag, Surigao del Sur from
sitio Lumbayagan, Barangay Maticdom, municipality of Tandag, Surigao del Sur and
kidnap one JOEY LUGATIMAN, who is on board the said hauler truck by forcibly taking
said Joey Lugatiman and carry him to the house of accused Pedro Ravelo then to the
Airborne Headquarters at Mabua, Tandag, Surigao del Sur, and while thereat and in
pursuance of their conspiracy, with intent to kill, with evident premeditation and treachery
and by taking advantage of their superior strength being armed with deadly weapon did
then and there wilfully, unlawfully and feloniously assault, by hitting and inflicting upon the
latter the following wounds or injuries:

1. Small abrasion and hematoma, both wrist and left ankle;

2. Multiple small abrasions, chest and right neck and right ankle;

3. Multiple small abrasions and small hematoma, back;

4. Abrasion, upper left lips. (Rollo, pp.18-19)

The trial court based its findings on evidence presented by the prosecution at the trial proper
which commenced several months after the informations were filed. The prosecution evidence in
Criminal Case No. 1187 are quoted from the judgment, thus:

Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified that he
knew all the accused Pedro Ravelo, Bonifacio Padilla, Romeo Aspirin, Nicolas Guadalupe
and Hermie Pahit. On May 21, 1984 at 5:30 in the afternoon, he was with a certain Diego
Gallardo and Reynaldo Cabrera Gaurano walking from Dawis to Dagocdoc to attend a
dance. The dance not having began being too early yet, they decided to go back to Dawis.
On their way back while crossing the Tandag bridge across the Tandag river, the accused
Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie
Pahit and Nicolas Guadalupe stopped them by pointing their guns. He and Diego Gallardo
ran away towards a group of old junk tractors and hid there. He saw Reynaldo Gaurano
chased by all the accused. He saw Reynaldo Gaurano ran up to the house of a certain
Fernando Cortes which was just opposite the tractors they were hiding, and which was
just across the road in front of the house of Fernando Cortes. Reynaldo Gaurano was
caught up in the house by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. He saw
Reynaldo Gaurano forced and dragged down to a waiting pick-up on the road by Jerry
Ravelo, Bonifacio Padilla and Nicolas Guadalupe. Reynaldo Gaurano was loaded on the
pick-up owned and driven by the accused Pedro Ravelo. All the accused, together with
Reynaldo Gaurano rode on the pick-up towards the Tandag airport at Awasian. After
Reynaldo Gaurano disappeared, he and Diego Gallardo went to the police and reported
the matter that Reynaldo Gaurano was brought by the accused to the airport.

On May 23, 1984, he was with the group who exhumed the body of Reynaldo Gaurano
under a mango tree near the Tandag airport and pointed to the investigator that that was
the body of Reynaldo Gaurano with blisters, without ear and a big wound on the neck.
Placed on the mat the cadaver was brought to the Mata Funeral Parlor at Tandag, Surigao
del Sur in that morning of May 23, 1984.

Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified that he
knew very well all the accused and that he personally saw them in the early dawn of May
22, 1984. He declared that he was at the Awasian creek near a mango tree catching crabs
with the use of a "panggal", a bamboo knitted trap. From a distance of around twenty
meters away, he saw a man hanging from the mango tree over a fire. He saw the accused
Jerry Ravelo placed fire on the hanging person and the accused Romeo Aspirin placed a
burning torch made of dried coconut leaves at the back of the hanging person. The man
hanging was not known to him. The man hanged was also surrounded by Pedro Ravelo,
Josen Ravelo, Nicolas Guadalupe, Hermie Pahit and Bonifacio Padilla. For five minutes
watching, he saw the clothing and body burned, he heard the moanings of the person and
heard the laughters of the accused. After witnessing that horrible incident he went home
hurriedly. On cross examination he further stated that he saw for the first time the man
already hanging under a fire (sic).

Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies that all the
accused are known to him for a long time. On May 21, 1984, with ten companions they
went to a place in the interior called Maticdum, Tandag, Surigao del Sur. After five hours
stay, he, together with his companions left Maticdum past midnight for Tandag on a
loggingtruck. As soon as they passed by the airport, they were stopped by the accused
and were told to go down from the truck for questioning. He was brought to the house of
the accused Pedro Ravelo near the checkpoint. He was asked if he was Joey Lugatiman
and if he knew Reynaldo Gaurano. There at the headquarters, he was asked if he was an
NPA. For almost an hour stay at the headquarters he was boxed, kicked and manhandled
by Pedro Ravelo and by the other accused with the use of their guns until he became
almost unconscious. Then, from the headquarters at Mabua on that early dawn he was
brought again back in the same pick-up to Awasian airport, to the house of Pedro Ravelo
and then to the house of Bonifacio Padilla. Before proceeding to the house of Bonifacio
Padilla, he saw his friend Reynaldo Gaurano, one meter away, already weak with bruises
on his face, hands tied at the back and with a gag around the mouth, moving as if in the
act of trying to free himself, with a bleeding mouth. When he reached the house of
Bonifacio Padilla, he was chained and tied to the wall near the window of the house. Alone,
he peeped through the window and saw Reynaldo Gaurano hanging up the mango tree
with fire below him. He heard the moanings of Reynaldo Gaurano while hanging from the
mango tree thirty meters away from the window of the house of Bonifacio Padilla. He saw
Pedro Ravelo and Josen Ravelo set fire on the body of Reynaldo Gaurano. At 5:00 o'clock
a.m. May 22, 1984, when alone, after being told that he would be killed at 9:00 o'clock in
the evening at the Awasian bridge, he escaped by being able to untie himself at 10:00
o'clock in the morning of May 22, 1984. He reported what happened to him and to
Reynaldo Gaurano, to his parents and then to the police authorities and later submitted
for physical examination on that day, May 22, 1984 and finally was investigated on May
23, 1984 in connection with this case. On cross examination he said that he knew all the
accused. He knew that all the accused are members of the CHDF.

Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag, testified that
she is the mother of Reynaldo Gaurano. Her son Reynaldo Gaurano left Cebu City on
April 12, 1984 for Tandag. On May 22, 1984 she received a telegram from her sister
Remedios Fernandez that her son Reynaldo is dead. She left for Tandag upon receipt of
the telegram and arrived at Tandag on May 24, 1984. Upon her arrival she went to the
Mata Funeral Parlor and then she found the dead body of her son Reynaldo Gaurano
inside the coffin and she saw many parts of the body of her son with burns. She suffered
moral damages and other expenses to the tune of P64,350.00.

Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of Tandag
testified that Reynaldo Gaurano is her nephew because his mother Zosima is her younger
sister. Her nephew Reynaldo Gaurano was here in Tandag on vacation. On May 20, 1984,
with two companions, Diego Gallardo and Edilberto Salazar, he failed to go home to the
house of her sister. After the second day, May 22, 1984 at around 5:00 o'clock in the
afternoon Edilberto Salazar and Diego Gallardo informed her that Reynaldo Gaurano was
kidnapped by Pedro Ravelo and his men. The message was relayed to her to Atty.
Buenaflor and to Col. Jesus Hermosa. On the following day, May 23, 1984, Col. Hermosa,
with other officers inspected the house of Pedro Ravelo and the nearby surroundings at
Awasian. She was made to Identify an exhumed body at the back of the house of Pedro
Ravelo near the Mango tree. She saw the dead body of her nephew Reynaldo Gaurano
without an ear, the neck was almost cut, entire body with blisters, and naked. His body
was pictured and later on brought to the Mata Funeral Parlor at Tandag. She requested
Dr. Romeo delos Reyes of the Tandag Provincial Hospital to conduct an autopsy and after
which the dead body of Reynaldo Gaurano was embalmed to await the arrival of the
mother from Cebu City.

Witness Dr. Romeo delos Reyes, a senior Resident physician of the Tandag Provincial
Hospital testified that he conducted an autopsy on the dead body of a certain Reynaldo
Gaurano, Exhibit "A", at the Mata Funeral Parlor. He found blisters formation caused by
fire burns throughout; the body was reddish and skin peels off easily; swollen face,
hematoma, contusion, losing of hair, wound around the neck; and these injuries could
have been inflicted 36 to 48 hours before the autopsy. Death certificate, Exhibit "B" was
issued. The burns and the injuries above stated were suffered before Reynaldo Gaurano
died.

Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years, is a
photographer at Tandag, testified that he took the pictures of a dead man inside a hole
 upon orders of Col. Hermosa at Awasian near the airport. He took pictures as shown in
Exhibit "C", "C-1"; he took 8 positions of the dead body. While yet inside the holeexhibit
"D" and as shown in Exhibit "E" and "F", that was the dead body of Reynaldo Gaurano
near the mango tree; Exhibit "G", while the cadaver was inside the hole and Exhibit "H" is
the picture while the body was lying on the mat.

Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force, testified that
at around 8:00 o'clock in the morning of May 23, 1984, he was the assistant team leader
of the group that proceeded to Tambacan, Awasian, Tandag to look for and inspect the
place where a certain Reynaldo Gaurano was kidnapped. Under a mango tree and about
25 meters near the house of Bonifacio Padilla the group recovered a P.25 coin, a small
comb, two zippers and burned pieces ofcloth and burned coconut leaves, together with
new excavated soil. Further search under the mango tree led to the very place where the
body of Reynaldo Gaurano was buried. At around 10:00 o'clock a.m., May 23, 1984, they
exhumed the dead body which was buried under a depth of around one meter under the
mango tree which was around 25 meters from the house of Bonifacio Padilla and around
150 meters from the house of Pedro Ravelo. The cadaver was first Identified to be that of
Reynaldo Gaurano by Edilberto Salazar. A photographer was called and pictures were
taken of the dead body of Reynaldo Gaurano from the hole and then the body was brought
to the surface and placed on the mat. Not one of the accused was present during the
period while the group was searching and exhuming the body of Reynaldo Gaurano. The
body of Reynaldo Gaurano shows signs of burns and several injuries, and was finally
brought to the funeral parlor at Tandag.

As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at Awasian,
Tandag, Surigao del Sur. His death was the result of the shock secondary to the wound
around the neck, Exhibit "A", and occurred while he was hanged by the accused with
hands tied to a branch of a mango tree. Sufferings of pains, through his moanings, were
augmented and aggravated by the tortures inflicted as vividly seen through the removal of
the right ear, the wound around the neck and placing of fires on his body, and the fire
below his feet. Not only were these acts brutal and cruel but also heartless and savage
acts of the accused, devoid of an iota of sympathy, who, instead, were happy and
delighted to see the miseries suffered by their victim. Further, it was shown that they
helped one another or conspired with one another in torturing with the use of their firearms,
and in killing Reynaldo Gaurano. (Rollo, pp. 10-16)

Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows:

The evidence of the prosecution consisted of the testimonies of the witnesses and the
Medical Certificate. Witness Joey Lugatiman, 22 years old, resident of Dawis, Tandag,
Surigao del Sur testified that he personally knew all the accused for quite a long time. On
May 21, 1984 with ten companions he went to a place called Maticdom, Tandag, Surigao
del Sur. After staying at Maticdum for five hours he went home on board on a cargo truck.
On the way near the Tandag Airport they were stopped by all the accused. They, including
himself, were ordered by the accused Pedro Ravelo to come down from the truck. Then
he was brought to the nearby house of Pedro Ravelo and there he was asked if he was
Joey Lugatiman and if he knows Reynaldo Gaurano.

His companions were ordered to proceed to Tandag while he was loaded on a service
pick up driven by the accused Pedro Ravelo. He was brought by all the accused to the
Headquarters of the Airborne Company at Mabua, Tandag, Surigao del Sur. In the
Headquarters of the Airborne, he was interrogated if he was an NPA. After hearing his
denial of being an NPA he was boxed, kicked and pistol whipped by the accused Pedro
Ravelo and his co-accused. He was manhandled by the accused with the use of the
firearms for almost an hour. Later he was brought back again to Awasian Airport to the
house of Pedro Ravell (should be Ravelo) then to the house of Bonifacio Padilla. But
before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano
one meter away, already weak with bruises on the face, hands, tied at the back and
gagged around the mouth. Reynaldo Gaurano could not talk and he was moving in the act
to free himself and with a bleeding mouth. Upon arriving in the house of Bonifacio Padilla
he was chained and hogtied near the open window by the companions of Pedro Ravelo.
Not long after, through the window, he saw Reynaldo Gaurano hanging up the mango tree
and a big fire was set on the ground. He heard the groaning and moaning of Reynaldo
Gaurano. He saw Pedro Ravelo and Jerry Ravelo setting fire on the right and left side of
Reynaldo Gaurano with the use of dried coconut leaves. He saw all the accused
surrounding and watching the hanging and burning of Reynaldo Gaurano. It was Pedro
Ravelo who cut the right ear and who also slashed the neck of Reynaldo Gaurano. He
could not shout because he was afraid. While lying down after he saw the horrible incident
he fell asleep. At around 5:00 o'clock in the morning of May 22, 1984 he awoke and saw
Bonifacio Padilla bringing nylon line with which he was tied to a piece of wood; while
Nicolas Gaudalupe gagged him, and he was blind folded by Hermie Pahit. While the three
were about to leave him behind, he heard them saying that they will kill him at the Awasian
bridge at 9:00 o'clock in the evening of May 22, 1984. When he was left alone in that
house he successfully freed himself. He jumped out of the window and escaped via the
nipa palm grove. As consequences of the manhandling of the accused, he suffered
several bruises on the breast, at the back and his mouth. He was physically examined by
a doctor in the Provincial Hospital on that day, Exhibit "A", "A-1" and "A-2" which is Exhibit
"1" and "2", "1-A", and "1-B" for the defense. On cross examination, he testified that he
escaped at around 10:00 o'clock in the morning from the house of Bonifacio Padilla, and
that he knew all the accused to be members of the Civilian Home Defense Force (CHDF).
He testified that the house of Pedro Ravelo and the house of Bonifacio Padilla is around
one hundred (100) meters away from each other.

Witness Dr. Petronila Montero testified that she is a resident physician of the Provincial
Hospital, and on May 22, 1984 she examined Joey Lugatiman and she issued a medical
certificate, Exhibit "A". All her findings were placed down in Exhibit "A". Upon being cross-
examined, she testified that the hematomas, small abrasions will not cause death. When
she examined Joey Lugatiman, she found that he was weak and haggard caused by the
injuries mentioned in Exhibit "A".

Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag testified that
while he was tendering his carabao near the house of Bonifacio Padilla he was surprised
to see Joey Lugatiman, wearing blue t-shirt and a jogging pants jumped out of the window
of the house of Bonifacio Padilla, twelve meters away from him. He saw Joey Lugatiman
ran towards the nipa palm then ran towards the airport. He knew Joey Lugatiman because
during the barrio fiesta Joey used to stay in his house at Awasian.

Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified that on
May 22, 1984 he was in Maticdom together with Joey Lugatiman, Miguel, Gregorio
Urbiztondo, Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the driver and a helper
 from 5:00 o'clock in the afternoon and started to go home at around 11:00 o'clock p.m. for
Tandag. On the way, near the airport, he, together with his companions on a logging truck
was stopped by the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Hermie Pahit,
Bonifacio Padilla, Romeo Aspirin and Nicolas Guadalupe. They were ordered to come
down and were made to identify each other. He saw Bonifacio Padilla dragged Joey
Lugatiman to the house of Pedro Ravelo. It was Pedro Ravelo who later brought Joey
Lugatiman to the pick-up. They were ordered to board on the truck except Joey Lugatiman
who loaded in the pick-up driven by Pedro Ravelo. Then, the accused Bonifacio Padilla
ordered the group to proceed to Tandag while Joey Lugatiman was left behind. He
reported to the police authorities that his companion Joey Lugatiman was being held under
arrest at Awasian and that he knows all the accused before this incident. (Rollo, pp. 21-
24)

The accused-appellants were not able to or did not present evidence on their behalf, nor were
they themselves able to confront the prosecution witnesses who testified against them except
through a counsel de oficio appointed by the trial judge to represent them namely, Atty. Pretextato
Montenegro and Atty. Florito Cuartero, in place of their defense counsel, Atty. Eliseo Cruz.

The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made requests
for postponements by telegrams stating his inability to appear for health reasons, led to the refusal
by the accused-appellants to be present at the trial. The accused-appellants alleged that Atty.
Cruz left an instruction that they will not submit themselves to trial without him.

The accused-appellants now maintain that they did not "waive" their right to be present during the
trial because their refusal was not done by their own free will but only in accordance with their
lawyer's instructions.

The Court notes that Atty. Cruz resorted to several other delaying tactics aside from sending
telegraphic notes requesting for postponements. He filed a petition for change of place of
detention and venue for trial before this Court, which denied it; a first petition for habeas corpus
on the ground that they should be tried by a military tribunal, which petition was denied; and a
motion for new trial on the ground of lack of due process due to improper waiver of presence at
the trial. This motion for new trial was granted to give the accused-appellants a last chance to be
heard and be present. Still, the defense counsel failed to appear and so did the appellants.

In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz failed to
file the required brief. The Court then appointed a new counsel de oficio for the accused-
appellants.

Accused-appellants raised the following alleged errors of the trial court:

THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF

FRUSTRATED MURDER HAS NO BASIS IN FACT AND IN LAW.

II

THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS

WAIVED THEIR RIGHTS TO BE PRESENT DURING THE TRIALS AND TO PRESENT
 EVIDENCE TO PROVE THEIR INNOCENCE (Brief for Appellants, pp. 10-11; Rollo, p.
144)

It is contended that there can be no frustrated murder committed in Criminal Case No. 1194
absent any proof of intent to kill, which is an essential element of the offense of frustrated murder.

Appellants aver that the trial court erroneously based its conclusion on the fact that when
Lugatiman was tied and gagged, the latter heard one of the accused-appellants utter that they
would kill him at Awasianbridge.

The trial court made the following inference which we find to be erroneous:

To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00 in the
morning of May 22, 1984 when the accused Bonifacio Padilla together with Hermie Pahit
and Nicolas Guadalupe tied his hands to the wall with a nylon line and gagged him; and
when the accused said they will kill him (Joey Lugatiman) at 9:00 o'clock p.m. at Awasian
bridge. These final and parting words uttered to Joey Lugatiman eloquently expressed
intent to kill. Killing, however, was not consummated because Joey Lugatiman was able
to escape at around 10:00 o'clock in the morning of May 22, 1984. (Rollo, p. 25)

The facts and evidence on record do not show anything from which intent to kill could be deduced
to warrant a conviction for frustrated murder. A mere statement by the accused stating that
Lugatiman would be killed is not sufficient proof of intent to kill to convict a person of frustrated
murder.

In a crime of murder or an attempt or frustration thereof, the offender must have the intent or the
actual design to kill (US v. Burns, 41 Phil. 418 [1921]) which must be manifested by external acts.
For there to be frustrated murder, the offender must perform all the acts of execution that would
produce the felony as a consequence, but the felony is not thereby produced by reason of causes
independent of the will of the perpetrator. A verbal expression that Lugatiman would be killed
sixteen (16) hours after such statement was made is not sufficient to show an actual design to
perpetrate the act. Intent must be shown not only by a statement by the aggressor of the purpose
to kill, but also by the execution of all acts and the use of means necessary to deliver a fatal blow
while the victim is not placed in a position to defend himself. However, after the performance of
the last act necessary, or after the subjective phase of the criminal act was passed, the crime is
not produced by reason of forces outside of the will of the aggressor. (People v. Borinaga, 55
Phil., 433 [1930]).

Tying the victim's left leg with a chain on a 2" by 3" piece of wood and leaving him inside the
house of accused-appellant, Bonifacio Padilla are not acts that would result in death. These were
done only to restrain his liberty of movement for the period of time the accused-appellants were
busy hanging and burning the body of Reynaldo Gaurano some thirty (30) meters away from
where Lugatiman was left. Also, tying Lugatiman's hands behind his back and his whole body to
the wall, and blindfolding him were for the purpose of restraining his liberty until the evening of
May 22, 1984 came.

Accused-appellants also maintain that the injuries sustained by Lugatiman from the manhandling
at the Headquarters of the Airborne Company were not fatal as stated by the prosecution's expert
witness, Dr. Petronila Montero; hence, there can be no frustrated murder. This is supported by
the records (Exhibit "A-2", Records of Criminal Case No. 1194, p. 21; TSN, June 4, 1985, pp. 24-
26) Lugatiman did not lose consciousness as a result of the blows he sustained (TSN, May 31,
1985, p. 49, Record, p. 115)

It is worthy to note that the trial court, in concluding the existence of frustrated murder, did not
even use as its basis, the manhandling of Lugatiman. The trial court in fact concedes that the real
purpose of the manhandling or torture was to have Lugatiman admit and confess his being a
member of the New People's Army (NPA) and the activities of the NPA's. It was the statement
made by the accused-appellant NicolasGuadalupe that Lugatiman would later be killed, that was
the basis of the court for inferring the commission of frustrated murder. According to the trial court,
murder was not committed because of the timely escape. Escape from the aggressors cannot
establish frustrated murder without first showing that the aggressors intended to kill and that they
really attacked the victim.

Under the circumstances, accused-appellants could not even be convicted of an attempt to

commit murder. There was no commencement of the criminal act by over acts which have a direct
connection with the crime of murder intended to be committed. As stated earlier the manhandling,
express statement of purpose, and the restraint of liberty were not such as to put the victim in
danger of an imminent death. The small abrasions and hematomas of the victim resulting from
the torture by the accused were not mortal. After the victim was restrained of his liberty
immediately before Gaurano was killed, he was able to watch how Gaurano was burned hanging
upside down from a mango tree near the Awasian bridge. Due to his fatigue and extreme
weakness, he was even able to lie down and sleep after looking at the horrible incident. (TSN,
May 31, 1985, pp. 22-23)

During the long period of time Lugatiman was informed that "he would be killed" and was left
behind (5:00 in the morning) until he was able to escape at 10:00 in the morning, it was not
certain whether or not appellants would really kill him as they did to Gaurano. Anything could have
happened in between. There was no distinct evidence to prove that the accused appellants were
really decided on killing him at the time specified.

The records show that Lugatiman himself was not sure that the accused-appellants would pursue
it.

The uncertainty can be seen from Lugatiman's testimony on cross-examination, thus:

xxx xxx xxx

Q. Why did you say a while ago that "I will be the next one to be hung and to be
killed by Ravelo and his group"?

A. I was just afraid that I will be the next.

Q. Now, when you saw these persons burning the body of Reynaldo, did you hear
also what the people around Reynaldo were talking of?

A. What I heard was their laughing and the moaning.

Q. And you heard their laughing?

 A. Yes.

Q. Why did you know that they were laughing?

A. Because I heard it.

Q. Their appearance you can see?

A. Their appearance is clear because there is a big light.

Q. And your name was never mentioned that you will be the next to be hung?

A. I did not hear them saying.

Q. There were also no other people like you who were apprehended or being
detained by Pedro Ravelo and his group?

A. I did not see.

Q. You only saw Reynaldo Gaurano, including yourself detained by Ravelo and
his group on May 21, in the early morning rather, on May 22, 1984 dawn?

A. Yes. (TSN, May 31, 1985, pp. 54-55)

After a review of the allegations of the information in Criminal Case No. 1194 and the
evidence received and admitted by the court a quo, the Court is of the view that accused-
appellants are not guilty of frustrated murder but only the crime of slight physical injuries.
There is evidence to show that the several small abrasions on the chest, right neck and
right ankle of Lugatiman as well as the hematoma at his back was due to the hitting by a
rough, hard object like a butt of a gun. The prosecution witness, Dr. Montero testified that
the injuries were inflicted by some other persons aside from the victim, and needed
medical treatment of four (4) to five (5) days to avoid infection. (TSN, June 4, 1985, pp.
21-26)

Accused-appellants aver that there was no deliberate waiver on their part of their right to
be present at the scheduled hearing dates because they "did not appear to know the
import of their decision not to appear in the trials." According to them, the judge should
have explained to them the meaning and the consequences of their decision not to appear.

The issue of due process had been fully considered by this Court when we acted on the
habeas corpus petition. In our May 8, 1988 resolution, we outlined in detail the reasons
for our finding of dilatory tactics on the part of the petitioners and their counsel and why
the lower court correctly proceeded with trial.

After stating the various incidents characterizing the initial proceedings and the trial of the
case, we stated:

xxx xxx xxx

 The petitioners are members of the Civilian Home Defense Force (CHDF) who
have been convicted of murder and frustrated murder committed under particularly
brutal circumstances. A notice of appeal was filed thirty-nine (39) days from the
promulgation of judgment and was clearly out of time. A motion for new trial was
also characterized by plainly dilatory tactics in its handling.

Were it not for the effectivity of the present Constitution, there is a likelihood that
the petitioners would have been sentenced to capital punishment. The near-capital
nature of the crimes for which the petitioners were convicted and the rather
unusual circumstances surrounding the trial of the two cases and the failure to
appeal, however, call for a closer look at the judgments of conviction. This can best
be done by calling for all the records of the case including the transcripts of
stenographic notes. If, after the consideration of the cases as appealed cases,
there appears to have been a miscarriage of justice or a need for further evidence,
the case can always be remanded for further proceedings as instructed.
Otherwise, the judgment will have to be affirmed or reversed on the basis of all the
present records. (Rollo, p. 73)

For purposes of this decision, we emphasize that in the morning of May 30, 1985, the date
of the first day of the trial proper, or after five (5) postponements, the accused-appellants
came to court without their counsel of record, Atty. Eliseo Cruz. Atty. Cruz allegedly sent
a telegram through one Mrs. Delfina Cruz indicating that he met a vehicular accident and
requesting a resetting of the hearing date. The several instances in which the Court
received similar telegrams including one where he claimed a "very sick heart ailment" led
the trial court to doubt and disregard the last request of the defense. The court had earlier
categorically stated that it wouldentertain no further requests for postponement.

The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30,
1988 and in appointing two (2) counsels de oficio for the accused-appellants did not only
consider the right of the accused to speedy trial which should not be abused by the
defense by willful delays, but more so, the rights of public justice. (Mercado v. Santos, 66
Phil. 215 [1938]). Despite their new counsels who appeared to be doing their best, the
accused-appellants insisted on absenting themselves stating that they cannot and would
not appear without Atty. Cruz and allegedly for fear that they would be harassed by
members of the New People's Army. At this point, the Court informed them of (1) the
importance of the appointment of competent counsels de oficio considering the gravity of
the offense and the difficulty of the questions that may arise during the trial; and (2) the
fact that there is no legal obstacle to proceeding with the reception of prosecution evidence
in their absence.

Absence at the trial did not deprive the accused-appellants of cross-examination except
the right to personally confront the prosecution witnesses face to face. Notwithstanding
their absence, they were represented by the counsels de oficio who took turns in cross-
examining each of the prosecution witnesses.

Accused-appellants also maintain that they did not actually refuse to present evidence on
their behalf. They argued that the counsels de oficio misapprehended a telegram of Atty.
Cruz which stated that he (Atty. Cruz) cannot attend the June 20 and 21, 1985 trial
because he had a prior engagement in another court in Ilocos Sur on those dates. They
also contend that their failure to appear and present evidence was "simply because of
their misplaced trust and obedience to the instructions of their counsel, Atty. Eliseo Cruz,
whose negligence and lack of vigilance in the handling of the cases, despite the
seriousness of the crimes charged, had caused injustice to the accused-appellants." They
ask this Court to take their case as an exception to the rule that a client shall suffer the
consequences of negligence or incompetence of his counsel.

The actual desire of the accused-appellants to testify and present other evidence is not
manifest from a thorough review of the records of the case. If it were true that they wanted
to present evidence, they should have taken advantage of the opportunity to be present,
to be heard and to testify in open court with the assistance of their appointed lawyers. As
a matter of fact, they were able to convince the lower court to grant them a chance to have
a new trial. However, they still failed to make use of their last opportunity. They cannot
now claim that they were denied their right to be present and to present evidence. This
Court upholds the lower court's position that the accused-appellants were given more than
generous time and opportunity to exercise their constitutional rights which should not be
overemphasized at the expense of public policy.

The circumstances of the case do not preclude the application of the rule that a client is
bound by the acts of his counsel who represents him. Nevertheless, at the time when the
lower court appointed the de oficio counsels, the court already had ample notice of the
futility of waiting for Atty. Cruz to come and appear for the defense. From the time the
accused-appellants were represented by Atty. Montenegro and Atty. Cuartero, their
decision not to attend the trial nor to present evidence is clearly a product of their own free
will.

WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are
hereby, respectively, affirmed and modified as to the crime proven. The accused-
appellants PEDRO RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN,
NICOLAS GUADALUPE and HERMIE PAHIT are hereby sentenced:

(1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of FIFTY
THOUSAND PESOS (P50,000.00) in Criminal Case No. 1187 solidarily; and

(2) To serve the penalty of arresto menor in Criminal Case No. 1194.

SO ORDERED.
G.R. No. 86941. March 3, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEODORO BASAY @ "DORO" and

JAIME RAMIREZ @ "NEBOY", accused. JAIME RAMIREZ @ "NEBOY", accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO REMAIN SILENT AND TO COUNSEL

AND TO BE INFORMED OF SUCH RIGHTS; WAIVER THEREOF; CUSTODIAL
INVESTIGATION; DEFINED; PROCEDURAL SAFEGUARDS TO BE EMPLOYED. ". . . " . . .
The landmark opinion of Miranda vs. Arizona, decided in 1966, as noted above, the source of this
constitutional provision, emphasized that statements made during the period of custodial
interrogation to be admissible require a clear intelligent waiver of constitutional rights, the suspect
being warned prior to questioning that he has a right to remain silent, that any utterance may be
used against him, and that he has the right to the presence of a counsel, either retained or
appointed. In the language of Chief Justice Warren: 'Our holding will be spelled out with some
specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way. As for the procedural safeguards to be employed, unless
other fully effective means are devised to inform accused persons of their right of silence and to
assure a continuous opportunity to exercise it, the following measures are required. Prior to any
questioning, the person must be warned that he has a right to remain silent, that any statement
he does not make (sic) may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed. The defendant may waive effectuation of
those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he
indicates in any manner and at any stage of the process that he wishes to consult with an attorney
before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in
any manner that he does not wish to be interrogated, the police may not question him. The mere
fact that he may have answered some questions or volunteered some statements on his own
does not deprive him of the right to refrain from answering any further inquiries until he has
consulted with an attorney and thereafter consents to be questioned.'"

2. ID.; ID.; ID.; PROCEDURE TO BE FOLLOWED BY PEACE OFFICERS WHEN MAKING

ARREST AND WHEN CONDUCTING CUSTODIAL INVESTIGATION. In Morales vs. Enrile,
in the light of the said Section 20, prescribed the procedure to be followed by peace officers when
making an arrest and when conducting a custodial investigation. Thus: "7. At the time a person is
arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and
he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to
remain silent and to counsel, and that any statement he might make could be used against him.
The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he
chooses by the most expedient means by telephone if possible or by letter or messenger.
It shall be the responsibility of the arresting officer to see to it that this is accomplished. No
custodial investigation shall be conducted unless it be in the presence of counsel engaged by the
reason arrested, by any person on his behalf, or appointed by the court upon petition either of the
detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel. Any statement obtained in violation
of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall
be inadmissible in evidence."

3. ID.; ID.; ID.; PHRASE "RIGHT TO BE INFORMED OF SUCH RIGHTS" EXPLAINED; CASE
AT BAR. In People vs. Nicandro, this Court declared that one's right to be informed of the right
to remain silent and to counsel contemplates "the transmission of meaningful information rather
than just the ceremonial and perfunctory recitation of an abstract constitutional principle." Thus,
is not enough for the interrogator to merely repeat to the person under investigation the provisions
of section 20, Article IV of the 1973 Constitution, now Section 12, Article III of the 1987
Constitution; the former must also explain the effects of such provision in practical terms e.g.,
what the person under interrogation may or may not do - and in a language the subject fairly
understands. The right "to be informed" carries with it a correlative obligation on the part of the
police investigator to explain, and contemplates effective communication which results in the
subject's understanding of what is conveyed. Since it is comprehension that is sought to be
attained, the degree of explanation required will necessarily vary and depend on the education,
intelligence and other relevant personal circumstances of the person undergoing investigation. In
further ensuring the right to counsel, it is not enough that the subject is informed of such right; he
should also be asked if he wants to avail of the same and should be told that he could ask for
counsel if he so desired or that one could be provided him at his request. If he decides not to
retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive
his right to counsel, such waiver, to be valid and effective, must still be made with the assistance
of counsel. That counsel must be a lawyer. . . . the kind of "advice" proffered by the unidentified
interrogator belongs to that stereotyped class a long question by the investigator informing the
appellant of his right followed by a monosyllabic answer which this Court has condemned for
being unsatisfactory. The investigator gave his advice perfunctorily or in a pro-forma manner,
obviously to pay mere lip service to the prescribed norms. As this Court observed in People vs.
Newman, this stereotyped "advice": " . . . has assumed the nature of a 'legal form' or model. Its
tired, punctilious, fixed and artificially stately style does not create an impression of voluntariness
or even understanding on the part of the accused. The showing of a spontaneous, free and
unconstrained giving up of a right is missing."

4. ID.; ID.; ID.; PRIMARY OF RIGHT TO COUNSEL STRESSED IN 1987 CONSTITUTION.

"SEC 12(1). Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of counsel.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him." The adjectives competent and independent, which qualify
the kind of counsel an accused is entitled to during investigation, were not found in the previous
Constitution. Their incorporation in the 1987 Constitution was thus meant to stress the primacy of
this right to counsel.

5. REMEDIAL LAW; EVIDENCE; COMPETENCY OF WITNESSES; IN CASE AT BAR,

CONDITION OF WITNESS AT TIME SHE SUPPOSEDLY GAVE STATEMENT RENDERED
EFFECTIVE COMMUNICATION IMPOSSIBLE. We harbor very serious doubts about the
alleged statement given by Bombie Toting to Sgt. Tabanao and Jaime Saguban identifying the
appellant and Teodoro Basay as the perpetrators of the heinous crime. In the first place, the trial
court itself ruled that Bombie was not a competent witness. We agree with such a conclusion, not
necessarily because she was only six (6) years old, but because her condition at the time she
supposedly gave her statement made it impossible for her to have communicated effectively. She
suffered the following injuries: "Infected hack wound from the right anterior lumbar area
transecting mid abdomen, inguinal area left to the medial thigh left through and through, with
necrotic transected muscle." She was taken from the crime scene only on 6 March 1986, or two
(2) days after the commission of the crime, and died in the hospital on 7 March 1986. The doctor
who first attended to her when she arrived at the Provincial Hospital, a certain Dr. Sy, was not
presented as a witness. On the other hand, the doctor who attended to her before she died, Dr.
Edgar Cantalao, testified that when he last saw Bombie alive, she could not talk.

6. ID.; ID.; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT FOR CONVICTION; CASE AT

BAR. While it may be true that the appellant ran away when he first saw the armed law officers,
he did so merely out of fear of them. This act should not be considered as the flight which is
indicative of guilt. The appellant had not left his house or barangay since 4 March 1986, the day
the crime was committed. If he were indeed one of the perpetrators and had the intention to flee
in order to avoid arrest, he should have vanished sooner and should not have remained in his
house. Besides, if indeed his running away could be construed as flight, it could only be
considered as circumstantial evidence. Such evidence would still be insufficient for a conviction.
Under Section 4, Rule 133 of the Rules of Court, in order that circumstantial evidence may sustain
a conviction, there must, inter alia, be more than one (1) circumstance. No other circumstance
was established in this case.

DECISION

DAVIDE, JR., J p:

Teodoro Basay and Jaime Ramirez were charged with Multiple Murder with Arson in a criminal
complaint 1 filed on 24 March 1986 with the Municipal Circuit Trial Court (MCTC) of Pamplona-
Amlan-San Jose in the Province of Negros Oriental for having allegedly killed the spouses Zosimo
and Beatrice Toting and their six-year old daughter, Bombie, and for having burned the said
spouses' house to conceal the crime; as a consequence of such fire, the spouses' other daughter,
Manolita, was burned to death.

On 31 March 1986, the MCTC issued a warrant for the arrest of the accused; no bail was
recommended. 2 It appears, however, that the accused had earlier been apprehended on 6 March
1986 by elements of the Philippine Constabulary (PC) and Civilian Home Defense Forces (CHDF)
and were detained at the Pamplona municipal jail.

On 15 April 1986, the accused filed a Waiver of Preliminary Investigation 3 which prompted the
MCTC, the following day, to order the clerk of court to forward the records of the case to the Office
of the Provincial Fiscal. 4

Meanwhile, on 14 August 1986, the Integrated National Police (INP) Station Commander of
Pamplona amended the complaint by including therein the name of another victim, Manolo Toting,
who suffered second and third degree burns because of the burning of the house. 5

On 11 December 1986, the Second Assistant Provincial Fiscal of Negros Oriental filed with the
Regional Trial Court (RTC) of Negros Oriental an Information for Multiple Murder and Frustrated
Murder with Arson 6 against the accused. The accusatory portion of the Information reads:
xxx xxx xxx

"That on or about March 4, 1986, at sitio Tigbao, Barangay Banawe, Pamplona, Negros Oriental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and acting in common accord, with intent to kill, evident
premeditation and treachery, did then and there willfully, unlawfully and feloniously assault, attack,
stab and hack with the use of a bolo and sickle, with which the accused were then respectively
armed and provided, one ZOSIMO TOTING, SR., thereby inflicting upon the victim hack wound,
neck posterior area 5" long, 3" depth, hack wounds, left upper back 3" long, 4" depth, stab wound,
thru and thru, lower abdomen, 4" width , exit lower back 1" width, 90% 2nd and 3rd degree burns
of the body, and which wounds caused the death of said Zosimo Toting, Sr., immediately
thereafter; one BEATRICE TOTING, thereby inflicting upon the victim hacking (sic) wound, neck
posterior area, 5" long, 6" depth, incised wound, epigastric area 11" long, 4" depth, exposing vital
organs, lower abdomen, 11" long, 4" depth exposing intestines, 90% 2nd and 3rd degree burns
of the body, and which wounds caused the death of said Beatrice Toting immediately thereafter;
one BOMBIE TOTING, thereby inflicting upon the victim infected hack wound from the right
anterior lumbar area transecting mid-abdomen, inguial area left to the medial thigh left, through
and through, with necrotic transected muscle, and which wounds caused the death of said Bombie
Toting shortly thereafter; and in order to cover-up the heinous crime committed, the above-named
accused, conspiring and confederating together and acting in common accord, did then and there
willfully, unlawfully and feloniously set to fire the house of the aforesaid victim (sic) spouses
Zosimo Toting, Sr. and Beatrice Toting, thereby razing it to the ground, and as a consequence
thereto MANOLITA TOTING suffered Third degree burns, all burn (sic) body, head, extremities
or 100% burns, and which wounds caused the death of said Manolita Toting immediately
thereafter and also causing injuries to MANOLO TOTING, to wit: 20% 2nd and 3rd degree burns
on the upper extremity bilateral, posterior shoulder, left and back, and which wounds would have
caused the death of victim Manolo Toting, thus performing all the overt acts of execution which
would have produced the crime of Murder as a consequence, but nevertheless did not produce it
by reason of causes independent of the will of the perpetrator, that is, the timely medical
assistance extended to said Manolo Toting which prevented his death.

Contrary to Article 248 in relation to Articles 6, 48 and 50 of the Revised Penal Code."

The case was docketed as Criminal Case No. 7411 and was raffled off to Branch 40 of the said
court.

After both accused entered a not guilty plea during their arraignment on 23 February 1987, 7 trial
on the merits ensued. The prosecution presented Dr. Edgardo Barredo, MCTC Judge Teopisto
Calumpang, Jaime Saguban, Sgt. Reynaldo Tabanao, Dr. Edgar Gantalao and Dr. Lucio Togonon
as its witnesses for the evidence in chief, and Judge Calumpang and Elpedio Catacutan in
rebuttal; for its surrebuttal, Pfc. Urbano Cavallida was presented. On the other hand, the accused
testified for the defense together with witnesses Joven Lopez and Maxima Basay. Accused
Ramirez took the witness stand again in surrebuttal.

On 15 December 1988, the trial court promulgated its Decision, dated 14 December 1988,
acquitting accused Teodoro Basay but convicting accused Jaime Ramirez. 8 Its dispositive
portion reads:

WHEREFORE, the prosecution having failed to prove the guilt of the accused beyond reasonable
doubt for the crime of Multiple Murder, Frustrated Murder With Arson against the accused
Teodoro Basay, this Court hereby finds said accused Teodoro Basay NOT GUILTY and orders
his immediate release from detention.

The prosecution has proven the guilt of the accused beyond reasonable doubt for the crime of
Multiple Murder, Frustrated Murder With Arson against accused Jaime Ramirez (sic), this Court
finds him GUILTY to (sic) said crime and hereby sentences him to suffer the penalty of life
imprisonment and to indemnify the heirs of the victims in the sum of Thirty Thousand (P30,000.00)
Pesos as his civil indemnity.

SO ORDERED." 9

The evidence for the prosecution upon which the decision is based is summarized in detail in the
trial court's decision and is further condensed in the Appellee's Brief 10 as follows:

"On March 6, 1986, Zosimo Toting Jr. reported to the Nabalabag Philippine Constabulary Patrol
at Pamplona, Negros Oriental, that his parents had been killed and their house at Tigbaw,
[Pamplona] Negros Oriental, burned. This prompted PC Sgt. Reynaldo Tabanao, Sgt. Nestorio
Rubia, Jaime Saguban and three members of the Civilian Home Defense Force to go to Tigbaw,
[Pamplona] Negros Oriental, to investigate the incident (TSN, January 20, 1988, p. 5).

Upon arriving at Tigbaw, they found a burned house and several dead bodies. The trial court
identified the four (4) fatalities and their injuries as follows:

(1) Zosimo Toting, Sr., with hack wound neck, posterior area, . . . hack wound, left upper back . .
. stab wound, through and through, lower abdomen, . . . 90% second and third degree burns of
the body;

(2) Beatrice Toting, hack wound, neck posterior are . . . incised wound, epigastric area . . .
exposing vital organs, lower abdomen . . . exist (sic) lower back, 90% second and third degree
burns of the body;

(3) Bombie Toting, inflicted hack wound from the anterior lumbar area transecting mid-abdomen,
inguial area left to the medial thigh left, through and through, with necrotic transected muscle;

(4) Manolita Toting, third degree burns, all burned body, head, extrimities (sic) or 100% burns;

Manolo Toting did not die but suffered 20% second and third degree burns on the upper extremity
bilateral, posterior shoulder, left and back (Records, p. 213).

Zosimo Toting, Sr, Beatrice Toting, Manolita Toting and Manolo Toting were found near the
vicinity of the burned house. About forty (40) meters away, the investigating officers found six
year old Bombie Toting suffering from serious hack wounds (TSN, January 20, 1988, p. 18). The
young girl said that she had been in this condition for one and a half days already.

Bombie Toting related to Sgt. Tabanao that on March 4, 1986 at 7:00 o'clock in the evening,
appellant and Teodoro Basay killed her parents and burned their house (TSN, January 20, 1988,
p. 18, Records, p. 9).
On the same day the investigating officers went to the appellant's house. They saw appellant
fixing the roof of his house and when appellant saw them, he went down and tried to ran (sic)
away (TSN, January, 20, 1988, p. 22). Appellant was turned over to the Pamplona Police Station
(TSN, January 20, 1988, p. 25).

Bombie Toting was brought to the hospital but due to the gravity of her injuries she died on March
7, 1986 at 1:40 P.M. (Records, p. 12, Exhibit I).

Appellant was brought into the chamber of Judge Teopisto Calumpang, the municipal circuit trial
judge of Pamplona, Amlan, and San Jose, on March 14, 1986. He was accompanied by Mr.
Elpedio Catacutan who acted as appellant's counsel (TSN, June 6, 1988, p. 6). They brought with
them an affidavit previously typed by a police investigating officer. The Judge then made the court
interpreter translate the allegations of the sworn statement into the local dialect for appellant
(TSN, June 6, 1988). Thereafter, in the presence of the Judge, appellant and Mr. Catacutan
signed the affidavit. (TSN, January 20, 1988, p. 14). Appellant and counsel also signed the
vernacular translation of Exhibit F (Records, p . 12)."

Upon the other hand, the evidence for accused Jaime Ramirez is substantially summarized in the
Appellant's Brief 11 in this wise:

"Evidence for the Defense:

xxx xxx xxx

Accused Jaime Ramirez testified that he was cooking food for the pig when the armed uniformed
men arrested him on March 5, 1986 and was brought (sic) to the Nabalabag PC Detachment
where he was maltreated. Later, he was brought to Municipal (sic) Jail where he stayed for one
month and 23 days.

Queried on the 'Joint Waiver', this witness said he did not read it because he did not know how to
read. When it was read to him, he did not understand it because it was read in English. Elpedio
Catacutan was not his lawyer and he did not know him (TSN, March 5, pp. 3, 5-6, 9-10).

On cross-examination, this witness said he reached Grade II and knows how to write his name.
He was alone at the time he was arrested. He was arrested ahead of Teodoro Basay and those
who arrested him where (sic) not the same persons who arrested Teodoro Basay.

He first saw Elpedio Catacutan in the Pamplona Municipal Hall when Elpedio was going upstairs.
When he signed Exhibit "F", Catacutan was in front of him. They did not converse with each others
(sic). He did not engage Catacutan to assist him, nor solicit his services. He does know (sic) any
one who solicited Catacutan's services for him. He did not ask the Judge (Calumpang) that a
lawyer be designated to help him in connection with the affidavit. The Pamplona Judge did not
offer to give him a lawyer to assist him in the execution of the affidavit (TSN, October 4, 1988,
p.4)." 12

Jaime Ramirez is a farmer and at the time he testified on 8 March 1988, was nineteen (19) years
old and single. 13 The prosecution did not rebut his claim that he had only finished Grade II and
that he does not know how to read. He, however, understands the Cebuano dialect. 14
The Exhibit "F" referred to above is the Sworn Statement, 15 in English, of accused Jaime
Ramirez taken in the Pamplona police station on 7 March 1986 and subscribed and sworn to only
on 14 March 1986 before Judge Teopisto L. Calumpang of the MCTC of Pamplona-Amlan-San
Jose. The trial court described this document as the Extra-Judicial Confession 16 of Ramirez.

The Joint Waiver (Exhibit "G") mentioned the testimony of Jaime Ramirez is in the Cebuano
dialect and was signed by accused Basay and Ramirez on 7 March 1986. Both accused state
therein that for their safety and security, they voluntarily decided to be detained and that they
killed the spouses Zosimo Toting and Betty Toting and thereafter burned the spouses' house; this
fire resulted in the death of one and the hospitalization of two Toting children. 17

The trial court disregarded this Joint Waiver insofar as it tended to incriminate the accused
"because when they signed said Joint Waiver, they were not represented by counsel;" thus, the
same was prepared in violation of "Section 12, Article 3 of the Bill of Rights of the 1987
Constitution." 18 There being no other evidence against Basay, the trial court acquitted him.
However, it admitted in evidence the so-called extra-judicial confession of Jaime Ramirez,
considered as part of the res gestae the alleged statement given by Bombie Toting to PC Sgt.
Reynaldo Tabanao and Jaime Saguban identifying Ramirez and Basay as the perpetrators of the
crime and considered as flight which is indicative of guilt Ramirez's running away when he
saw the law enforcers on 6 March 1986. It further ruled that the latter signed the extra-judicial
confession voluntarily and in the presence of Elpedio Catacutan, the COMELEC registrar of
Pamplona "a barister (sic) who appeared as counsel for accused Jaime Ramirez;" hence it is
admissible against the latter. 19

On the other hand, the trial court did not admit the statement of Bombie Toting as a dying
declaration but merely as part of the res gestae because the prosecution failed to prove two (2)
of the requisites for the admissibility of a dying declaration, viz., that the statement was given
under consciousness of an impending death and that Bombie Toting is a competent witness. 20

Accused Jaime Ramirez neither filed a notice of appeal nor orally manifested his intention to
appeal. However, on 31 January 1983, the trial court handed down an order directing the clerk of
court to transmit to this Court the entire records of the case because in view of the penalty
imposed life imprisonment "such Decision is subject for automatic review by the Supreme
Court." 21 This of course is erroneous as, pursuant to Section 10, Rule 122 of the Rules of Court,
the automatic review of a criminal case is applicable only where the penalty of death has been
imposed which, nevertheless, is now banned under Section 19(1), Article III of the 1987
Constitution.

In the interest of justice, however, We accepted the appeal in the Resolution of 8 May 1989. 22

In his Appellant's Brief, 23 Jaime Ramirez, hereinafter referred to as the Appellant, imputes upon
the trial court the commission of this lone error:

"THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY AS CHARGED ON THE
BASIS OF EXHIBIT "F" (AFFIDAVIT) WHICH WAS EXECUTED IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS AND ON THE BASIS OF HEARSAY EVIDENCE AND ON THE
PRESUMPTION OF GUILT."

Appellant contends that his so-called extra-judicial confession, Exhibit "F", was executed in
blatant disregard of his constitutional right to counsel and to remain silent during custodial
investigation. It is therefore inadmissible in evidence. 24 Without the said confession, the only
piece of evidence which seems to point to his guilt is the alleged statement of Bombie Toting.
Appellant asserts, however, that the said statement was "very doubtful and . . . no reasonable
mind would conclude that she was candidly truthful;" hence, her statement, besides being hearsay
as it came from a person who was not presented in court to testify, should not have been taken
at "face value against any of the accused, much less against the appellant." 25 Besides, the
appellant asserts that the same statement was not used against his co-accused Basay who was,
unlike him, acquitted by the trial court. As to his having run away upon seeing the armed law
enforcers, appellant claims that he did so out of fear as the latter were armed. 26

On the other hand, it is maintained by the People, in the Appellee's Brief 27 submitted by the
Office of the Solicitor General, that the appellant executed the extra-judicial confession voluntarily
and without duress; in signing such confession, he was accompanied by a certain Mr. Catacutan,
a non-lawyer, inside the chambers of Judge Calumpang "an environment . . . other than
vindictive and oppressive which the courts desired to guard against in Miranda vs. Arizona, 384
US 436." 28 As to Bombie's statement, it is claimed that the same should be considered as a
dying declaration.

We find merit in the appeal.

1. Jaime Ramirez's sworn statement or extra-judicial confession was prepared on 7 March 1986
at about 11:00 o'clock in the morning in the Pamplona police station. Pertinent portions thereof
read as follows:

"PRELIMINARY MR. JAIME RAMIREZ, you are now under investigation in connection with the
death of the couple and the burning of their house, ZOSIMO TOTING and BEATRICE TOTING
alias BETTY TOTING on March 4, 1986 at about 7:00 o'clock in the evening at sitio Togbao,
Barangay Banawe, Pamplona, Negros Oriental. You are also informed that under our new
constitution you have the right to remain silent and not to answer questions which will incriminate
you and to have a counsel of your own choice to assist you in this investigation, do (sic) you aware
of this?

ANSWER Yes.

Q You are also informed that whatever statement you may offer in this investigation it (sic)
might be used as evidence in your favor or against you in the future, do (sic) you aware of this
this (sic)?

A Yes.

Q After you have informed (sic) of your rights are you willing to proceed with this investigation
of yours even if you have no counsel of your own choice that will assist you in this investigation?

A Yes. I don't need any counsel in this investigation because I will just tell the truth.

1. Question If so, please state your name, age and other personal circumstances?

Answer Jaime Ramirez y Tano, 19 years old, single, Filipino, farmer and a resident of sitio
Palale, Barangay San Isidro, Pamplona, Negros Oriental.
xxx xxx xxx

11. Q What more can you say?

A No more. I proved that my statement is correct I signed this 7 March 1986 (sic), at Pamplona,
Negros Oriental.

(Sgd.) JAIME T. RAMIREZ

(TYP) JAIME T. RAMIREZ

Affiant

NOTE: ASSISTED BY:

(Sgd.) ELPEDIO B. CATACUTAN

(TYP) ELPEDIO B. CATACUTAN

Counsel of the accused

SUBSCRIBED AND SWORN to before me this 14th day of March 1986, at Pamplona, Negros
Oriental, Philippines.

(Sgd.) TEOPISTO L. CALUMPANG

(TYP) TEOPISTO L. GALUMPANG

Mun Trial Circuit Judge

CERTIFICATION

I HEREBY CERTIFY that I have personally examined the affiant and that I am satisfied that he
voluntarily executed and understood his affidavit.

(Sgd.) TEOPISTO L. CALUMPANG

(TYP) TEOPISTO L. CALUMPANG

Mun Trial Circuit Judge" 29

We do not hesitate to rule that this purported extra-judicial confession belonging to appellant
Jaime Ramirez and obtained during custodial interrogation was taken in blatant disregard of his
right to counsel, to remain silent and to be informed of such rights, guaranteed by Section 20,
Article IV of the 1973 Constitution the governing law at that time. Said section reads:

"SECTION 20. No person shall be compelled to be a witness against himself. Any person under
investigation for the commission of an offense shall have the right to remain silent and to counsel,
and to be informed of such right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence."

The source of this provision is Miranda vs. Arizona, 30 in connection therewith, this Court stated
in People vs. Caguioa 31 that:

" . . . The landmark opinion of Miranda vs. Arizona, decided in 1966, as noted above, the source
of this constitutional provision, emphasized that statements made during the period of custodial
interrogation to be admissible require a clear intelligent waiver of constitutional rights, the suspect
being warned prior to questioning that he has a right to remain silent, that any utterance may be
used against him, and that he has the right to the presence of a counsel, either retained or
appointed. In the language of Chief Justice Warren: 'Our holding will be spelled out with some
specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way. As for the procedural safeguards to be employed, unless
other fully effective means are devised to inform accused persons of their right of silence and to
assure a continuous opportunity to exercise it, the following measures are required. Prior to any
questioning, the person must be warned that he has a right to remain silent, that any statement
he does not make (sic) may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed. The defendant may waive effectuation of
those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he
indicates in any manner and at any stage of the process that he wishes to consult with an attorney
before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in
any manner that he does not wish to be interrogated, the police may not question him. The mere
fact that he may have answered some questions or volunteered some statements on his own
does not deprive him of the right to refrain from answering any further inquiries until he has
consulted with an attorney and thereafter consents to be questioned.'" (citations omitted).

Then, in Morales vs. Enrile, 32 in the light of the said Section 20, prescribed the procedure to be
followed by peace officers when making an arrest and when conducting a custodial investigation.
Thus:

"7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the
reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of
his constitutional rights to remain silent and to counsel, and that any statement he might make
could be used against him. The person arrested shall have the right to communicate with his
lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible
or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that
this is accomplished. No custodial investigation shall be conducted unless it be in the presence
of counsel engaged by the reason arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel
may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any
statement obtained in violation of the procedure herein laid down, whether exculpatory or
inculpatory, in whole or in part, shall be inadmissible in evidence."

This was reiterated in People vs. Galit. 33

In People vs. Nicandro, 34 this Court declared that one's right to be informed of the right to remain
silent and to counsel contemplates "the transmission of meaningful information rather than just
the ceremonial and perfunctory recitation of an abstract constitutional principle." Thus, is not
enough for the interrogator to merely repeat to the person under investigation the provisions of
section 20, Article IV of the 1973 Constitution, now Section 12, Article III of the 1987 Constitution;
the former must also explain the effects of such provision in practical terms e.g., what the
person under interrogation may or may not do - and in a language the subject fairly understands.
The right "to be informed" carries with it a correlative obligation on the part of the police
investigator to explain, and contemplates effective communication which results in the subject's
understanding of what is conveyed. Since it is comprehension that is sought to be attained, the
degree of explanation required will necessarily vary and depend on the education, intelligence
and other relevant personal circumstances of the person undergoing investigation. In further
ensuring the right to counsel, it is not enough that the subject is informed of such right; he should
also be asked if he wants to avail of the same and should be told that he could ask for counsel if
he so desired or that one could be provided him at his request. 35 If he decides not to retain
counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his
right to counsel, such waiver, to be valid and effective, must still be made with the assistance of
counsel. 36 That counsel must be a lawyer. 37

The foregoing pronouncements are now synthesized in paragraphs 1 and 3, Section 12, Article
III of the 1987 Constitution, to wit:

"SECTION 12(1). Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him."

The adjectives competent and independent, which qualify the kind of counsel an accused is
entitled to during investigation, were not found in the previous Constitution. Their incorporation in
the 1987 Constitution was thus meant to stress the primacy of this right to counsel.

A close scrutiny of the questioned extra-judicial confession in the case at bar reveals all possible
violations of the appellant's right to remain silent, to counsel and to be informed of such rights,
and of the safeguards prescribed by this Court for the holding of custodial interrogations.

(a) The interrogation was the conducted and the confession was written in English a language
the appellant, a farmer in a remote barangay of Pamplona, cannot speak and does not
understand; he only finished Grade II. There is no evidence to show that the interrogator, who
was not even presented as a witness and remains unidentified, translated the questions and the
answers into a dialect known and fairly understood by the appellant.

(b) Appellant was not told that he could retain a counsel of choice and that if he cannot afford to
do so, he could be provided with one.

(c) He did not sign any waiver of his right to remain silent and to counsel.
(d) He was not assisted by any counsel during the investigation. Instead, a certain Elpedio
Catacutan, who claimed to have appeared for him as a "friend-counsel," 38 was present only at
the time that appellant was brought to the office of Judge Catacutan for the preparation of the
jurat. It was precisely for this reason that the following notations were inserted above the jurat of
the so-called extra-judicial confession:

"NOTE: ASSISTED BY:

(Sgd.) ELPEDIO B. CATACUTAN

(TYP) ELPEDIO B. CATACUTAN"

In reality, Catacutan signed not as counsel, but only as a witness. Thus:

"Q Do you recall having signed as a witness of an affidavit of one Jaime (sic) T. Ramirez which
affidavit is now marked as Exhibit "F"?

A Yes.

Q Can you tell the court where did you sign that Exhibit "F"?

A I signed this affidavit in the office of the Municipal Judge of Pamplona." 39

Moreover, it is to be observed that the appellant does not even know the said Elpedio Catacutan.
40

(e) Assuming arguendo that Elpedio Catacutan may have been summoned to act as appellant's
counsel, he was, nevertheless, not present during the custodial interrogation which, by the way,
was conducted exactly a week before he appeared or more correctly, was made to appear
before Judge Calumpang. His presence before the latter did not change the situation. As this
Court stated in People vs. Burgos, 41 the securing of counsel to help the accused when the latter
subscribed under oath to his statement at the Fiscal's Office was too late and had no palliative
effect; it did not cure the absence of counsel at the time of the custodial investigation when the
extra-judicial statement was being taken.

(f) Furthermore, Elpedio Calumpang is not a lawyer; according to the trial court, he is "a barister
(sic)." In fact, he candidly admitted that he is not a lawyer but that he obtained a law degree from
the Siliman University in 1959. Unfortunately, however, he failed in three Bar Examinations. 42

(g) There is no showing that the so-called extra-judicial confession, which is in English, was
correctly explained and translated to the appellant by Judge Calumpang. Although the latter
claimed in his testimony on direct examination that he translated the same in the local dialect to
the appellant before the latter affixed his signature thereto, 43 Elpedio Catacutan categorically
declared that it was the interpreter, one Pedro Rodriguez, who translated it to the appellant. Thus:

"Q Who is the interpreter who made the translation?

A Pedro Rodriguez.
Q Were you there when the translation was made?

A Sure.

Q So it was not the Judge who made the translation, is that what you mean?

A The translation was course (sic) through the interpreter." 44

(h) Finally, the kind of "advice" proffered by the unidentified interrogator belongs to that
stereotyped class a long question by the investigator informing the appellant of his right
followed by a monosyllabic answer which this Court has condemned for being unsatisfactory.
45 The investigator gave his advice perfunctorily or in a pro-forma manner, obviously to pay mere
lip service to the prescribed norms. As this Court observed in People vs. Newman, 46 this
stereotyped "advice":

" . . . has assumed the nature of a 'legal form' or model. Its tired, punctilious, fixed and artificially
stately style does not create an impression of voluntariness or even understanding on the part of
the accused. The showing of a spontaneous, free and unconstrained giving up of a right is
missing."

Consequently, Exhibit "F", which is indisputably an uncounselled confession or admission, is

inadmissible in evidence. The trial court, therefore, committed a fatal error in admitting it.

2. We harbor very serious doubts about the alleged statement given by Bombie Toting to Sgt.
Tabanao and Jaime Saguban identifying the appellant and Teodoro Basay as the perpetrators of
the heinous crime. In the first place, the trial court itself ruled that Bombie was not a competent
witness. We agree with such a conclusion, not necessarily because she was only six (6) years
old, but because her condition at the time she supposedly gave her statement made it impossible
for her to have communicated effectively. She suffered the following injuries:

"Infected hack wound from the right anterior lumbar area transecting mid abdomen, inguinal area
left to the medial thigh left through and through, with necrotic transected muscle." 47

She was taken from the crime scene only on 6 March 1986, or two (2) days after the commission
of the crime, and died in the hospital on 7 March 1986. The doctor who first attended to her when
she arrived at the Provincial Hospital, a certain Dr. Sy, was not presented as a witness. On the
other hand, the doctor who attended to her before she died, Dr. Edgar Cantalao, testified that
when he last saw Bombie alive, she could not talk. 48 It was this inability to talk which led the trial
court to express its doubts on the veracity of the latter's supposed statement:

" . . . Although persons of tender age are prone to tell the truth, however, the Court must be
cautious in appreciating said testimony where the person had a serious wound and had not eaten
for one day and one night. There is no evidence to show that Bombie Toting told the doctor as to
who were the perpetrators of the crime; neither did she tell her own brother, Zosimo Toting, Jr.
that it was the accused, Teodoro Basay and Jaime Ramirez who killed her parents and her brother
and sisters and burned their house. . . . The Court cannot understand why P.C. Sgt. Tabano did
not ask Bombie Toting questions concerning the commission of the crime by the accused. Neither
did the P.C. or (sic) the police take any statement from her on her way to the hospital or at the
hospital. Surprisingly, Bombie Toting did not even tell her own brother, Zosimo Toting, Jr. that it
was the accused who committed the crime. Had the statement of Bombie Toting been made to
the doctor or to the barangay captain or to any reputable member of the community where the
incident happened, the Court will have to put weight and consider her statement as a dying
declaration. Our experience has shown that persons in authority are prone to fabricate or
misrepresent the facts to serve their own purpose. Innocent people had been charged in Court
simply by the false statements of peace officers. The Court therefore has to be cautious when
these peace officers testify in Court." 49

In the second place, as a result of the foregoing observations, the trial court completely
disregarded Bombie Toting's so-called statement as against Teodoro Basay. We therefore see
neither rhyme nor reason for the trial court's admission of the same as against the appellant.

3. While it may be true that the appellant ran away when he first saw the armed law officers, he
did so merely out of fear of them. This act should not be considered as the flight which is indicative
of guilt. The appellant had not left his house or barangay since 4 March 1986, the day the crime
was committed. If he were indeed one of the perpetrators and had the intention to flee in order to
avoid arrest, he should have vanished sooner and should not have remained in his house.
Besides, if indeed his running away could be construed as flight, it could only be considered as
circumstantial evidence. Such evidence would still be insufficient for a conviction. Under Section
4, Rule 133 of the Rules of Court, in order that circumstantial evidence may sustain a conviction,
there must, inter alia, be more than one (1) circumstance. No other circumstance was established
in this case.

Hence, the appellant's guilt was not established with moral certainty. He should be acquitted.

We cannot, however, close this case without making some observations about the legal
conclusions of the trial court anent the crimes committed and the penalty imposed. The facts
indisputably establish that Zosimo Toting, Sr., Beatrice Toting and Bombie Toting were stabbed
and hacked before their house was burned. Zosimo and Beatrice died immediately while Bombie
lived for a few days. As a matter of fact, the thesis of the prosecution is that the house was burned
to conceal the stabbing and hacking. As a result of this fire, Manolita Toting and Manolo Toting
suffered burns which caused the death of the former; the latter, however, survived due to timely
medical attention. Four (4) crimes were therefore committed, viz.: three (3) separate murders
under Article 248 of the Revised Penal Code 50 for the deaths of Zosimo, Beatrice and Bombie,
and arson as punished under Section 5 of P.D. No. 1613 51 for the death of Manolita and the
injuries sustained by Manolo as a consequence of the burning of the house. The aforementioned
Section 5 reads:

"SECTION 5. Where Death Results from Arson. If by reason of or on the occasion of the arson
death results, the penalty of Reclusion Perpetua to death shall be imposed."

Also, the information that was filed is clearly duplicitous and thus vulnerable to a motion to quash
under Section 3(e), Rule 117 of the Rules of Court. No such motion having been filed, appellant
is deemed to have waived the defect.

Finally, We have time and again said that life imprisonment is not a penalty provided for in the
Revised Penal Code and is not the same as reclusion perpetua. 52 Unfortunately, the trial court
still disregarded this pronouncement. It is hoped that it will not happen again.
WHEREFORE, the challenged Decision in Criminal Case No. 7411 of Branch 40 of the Regional
Trial Court of Negros Oriental is REVERSED and appellant JAIME RAMIREZ alias "NEBOY" is
hereby ACQUITTED with costs de oficio. His immediate release from detention is hereby ordered.

SO ORDERED.

[G.R. Nos. 112620-21. May 14, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOLI PAGAL y LAMQUI and
ADOLFO LAMQUI y NATIVIDAD, accused-appellants.

DECISION
ROMERO, J.:

Before this Court comes a case replete with all the elements of a blockbuster action movie:
Violence, motives and alibis. The law in dispensing justice is, however, constrained to detach
itself from sensationalism and, instead, look at the facts dispassionately as presented and proven
in a court of law.
This is an appeal from the decision dated September 23, 1993, of the Regional Trial Court
(RTC) of Tayug, Pangasinan, Branch 51, convicting accused Noli Pagal and Adolfo "Boy" Lamqui
of the crimes of murder and attempted murder and sentencing them to reclusion perpetua and
imprisonment of two years, ten months and twenty days of prision correcional, as minimum, to
eight years and twenty days of prision mayor, as maximum, respectively.
The two cases were initially filed before the RTC of Lingayen as Criminal Case No. L-4253,
for murder, and Criminal Case No. L-4252 for frustrated murder. Upon motion of the prosecution,
the cases were later transferred to the Tayug RTC and respectively re-docketed as Criminal Case
Nos. T-1086 and 1061.
The relevant facts gathered from the records follow:
Paquito Medrano and Jose Rebujio were partners in the business of buying and selling cattle.
On March 23, 1990, between the hours of nine and ten in the morning, they decided to go to
Cabuaan, Natividad, Pangasinan to look at a cow that was up for sale. Medrano drove a
motorcycle with Rebujio riding tandem. They, however, never reached their destination as they
were ambushed along the way. Somewhere between Barangay San Miguel and Sitio Tulin of said
town, they noticed two bamboo poles obstructing the road some three (3) meters ahead of them.
As they were slowing down, they both noticed, crouched in the canal on the left side of the road,
two men who stood up silently, one after the other, and without a word started firing at them with
an armalite rifle and a short firearm. They later identified the malefactors as Noli Pagal and Adolfo
"Boy" Lamqui. Despite the injuries sustained from the firing, Medrano was able to drive faster and
proceed to the hospital while his companion hung on.
As evidenced by two medical certificates both dated March 27, 1990, and reiterated on the
witness stand by the attending physician, Dr. Cesar Bulosan, Medrano and Rebujio were confined
and treated at the Eastern Pangasinan District Hospital. Dr. Bulosan treated Medrano for gunshot
wounds on the left upper abdomen, right upper abdomen, left chest below the nipple and on the
right arm near the wrist and Rebujio for a through-and-through gunshot wound at the left thigh,
and gunshot wounds at the right buttock below the waistline, right forearm and back of the upper
right forearm. After considering the nature and the appearance of the wounds at the time of the
examination, he opined that an automatic rifle could have been used and such must have been
fired at close range because of the presence of multiple powder burns.[1]
Rebujio was subsequently transferred to the Armed Forces of the Philippines Medical Center
(AFPMC) where he died on March 25, 1990. The cause of his death was cardiorespiratory arrest
due to massive internal hemorrhage resulting from the through-and-through gunshot wound at
the left thigh, as stated in the medico-legal report[2] issued by Dr. Perfecto Tebangin, the Municipal
Health Officer of Natividad, Pangasinan.
Upon learning of the incident at around 10:30 in the morning of the fateful day, prosecution
witness Patrolman Orlando Arciaga immediately proceeded to the Eastern Pangasinan District
Hospital and was able to interview the victims who divulged the identities of their assailants,
namely, Noli Pagal and Boy Lamqui.[3] Said investigation was taken down in writing and was
presented in evidence as the ante-mortemstatement of Rebujio.
Medrano took the stand and positively identified the assailants, corroborating the statement
of the late Rebujio.[4] He knew the assailants well because Pagal is his nephew, and he, Rebujio
and the Pagals have been partners in the business of buying and selling cattle since their
childhood.[5] Their cordial relationship deteriorated after a slaying incident in 1988 involving the
members of the Medrano and Pagal families.[6]Although, the matter was amicably settled within
the same year, the relationship between the Medrano and Pagal family has since been strained.
Accused-appellants interposed the defense of denial and alibi. They declared that from eight
to eleven in the morning of March 23, 1990, they were in Barangay Calapugan, helping in the
construction of a certain Hermenegildo Pate's house. They stressed that they never left said site
until they were called by Pagal's brother at eleven o'clock a.m. because members of the Philippine
Constabulary were looking for them.[7] To corroborate their story, they presented Jun de Guzman,
one of the workers in the construction site, and Pagal's father Arturo.
After trial, Judge Ulysses R. Butuyan rendered a decision dated September 23, 1993, finding
accused-appellants guilty of murder and attempted murder. The dispositive portion thereof states,
thus:

"WHEREFORE, in Criminal Case No. T-1061, the Court finds the accused NOLI PAGAL y Lamqui
and the accused ADOLFO LAMQUI y Natividad alias "Boy" guilty beyond reasonable doubt of the
crime of Attempted Murder, defined and penalized under Article 248 of the Revised Penal Code
in relation to the third paragraph of Article 6 of the same Code, as co-principals, and hereby
sentences them to each suffer the penalty of imprisonment of Two (2) years, Ten (10) months
and Twenty (20) days of prision correccional as minimum to Eight (8) years and Twenty (20) days
of prision mayor as maximum, together with the accessory penalties provided by law, and to
solidarily indemnify the private complainant Paquito Medrano or his heirs, in a proper case, for
actual damages in the amount of P8,000.00 plus moral damages which the Court hereby fixes
at P100,000.00 and to pay the costs.

In Criminal Case No. T-1086, the Court finds the aforenamed accused guilty beyond reasonable
doubt of the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code,
as co-principals, and hereby sentences them to each suffer the penalty of reclusion perpetua,
together with the accessory penalties provided by law, and to solidarily indemnify the heirs of the
late Jose Rebujio for actual damages of P61,200.00 plus moral damages which the Court hereby
fixes at P300,000.00 and to pay the costs.

SO ORDERED."[8]

Aggrieved, accused-appellants come to this Court seeking the reversal of their conviction on
the ground that the trial court erred in finding both of them guilty of murder and attempted murder.
We find the appeal bereft of merit.
Accused-appellants argue that at a distance beyond eighteen inches from the barrel of a
firearm, it would be impossible for powder burns to be present in the bodies of the victims.
Dr. Bulosan, however, testified that a high caliber firearm like an armalite can leave powder
burns on the target although situated eighteen inches away.[9] It is specious reasoning for
accused-appellants to conclude that it is impossible for powder burns to be present in the bodies
of victims shot from a distance beyond eighteen inches considering the undisputed fact that it was
an armalite rifle which was used in the commission of the crimes.
Next, they contend that the results of the paraffin test show that they are innocent of the
crimes for which they were charged. This Court agrees with the court a quo in not giving much
weight to the National Bureau of Investigation (NBI) Chemistry Report finding Lamqui negative
for powder burns and Pagal positive for powder burns only on his palm.[10] Well-settled is the rule
that a negative finding on paraffin test is not a conclusive proof that one has not fired a
gun,[11] because it is possible for a person to fire a gun and yet bear no traces of nitrates or
gunpowder, as when the hands are bathed in perspiration or washed afterwards.[12] The trial court
also correctly rejected the results of said exam for having been taken eighteen days after the
commission of the crime.[13]
Accused-appellants likewise fault the lower court for lending credence to the testimony of
Medrano. They aver that his testimony that the gunmen were at the right side of the victims is
belied by the gunshot wounds located in front of the bodies of the victims, indicating a face-to-
face encounter.[14] Medrano, however, testified that accused-appellants were already firing at him
and Rebujio from a distance of three meters while on board the moving motorcycle. [15] That they
were moving targets would explain the different locations of the wounds in their bodies.
They further question the failure of the prosecution to present the result of the ballistic
examination of Pagal's firearm, an omission which they perceive to be tantamount to suppression
of adverse evidence.
We disagree.
To begin with, the adverse presumption arising from suppression of evidence is not
applicable when the evidence is merely corroborative or cumulative and/or likewise available to
the defense, as in the case at bar.[16] Furthermore, there is no suppression of evidence to speak
of insofar as the ballistic examination of Pagal's firearm is concerned. The prosecution has
established, and Pagal has admitted, that he is a member of the CAFGU and was issued an
armalite rifle with serial number 629161. Exhibit "E" for the prosecution is the original of the
memorandum receipt dated March 21, 1989, showing the issuance to Noli Pagal of one U.S. rifle
7.62 MN M14 with serial number 629161. Exhibit "F" is NBI Forensic Chemistry Report No. C-90-
388 in regard to a specimen known as one M14 armalite rifle with serial number 629161 submitted
on April 10, 1990, and indicating the following findings: "Chemical and microscopic examinations
conducted on the above-mentioned firearm showed the presence of soot, black particles and
nitrates. Test firing showed that the firearm could have been fired more than two (2) weeks prior
to the date of examination on April 11, 1990."[17]
Lastly, accused-appellants assail the admission by the court of Rebujio's statement as his
dying declaration when such was not given under the consciousness of an impending death.
This argument is off-tangent and without basis.
The record does not show that the trial court considered the statement of Rebujio as a dying
declaration. In fact, it was expressly disqualified as such and was instead admitted as part of
the res gestae, as sanctioned by Section 36 (now Section 42), Rule 130 of the Rules of
Court.[18]This Court has held that although an ante-mortem statement may not be considered as
a dying declaration because it was not given under the consciousness of an impending death, it
is admissible as part of the res gestae if such declaration was made at the time of, or immediately
after, the commission of the crime, or at a time when the exciting influence of the startling
occurrence still continued in the declarant's mind, as in the case at bar.[19]
Having ruled on accused-appellants' assignment of errors, we now resolve the main issue of
whether they were convicted by the trial court based on the evidence presented at the trial.
The Court finds that, not only was the evidence of the defense weak, but that of the
prosecution was sufficient to support the charges against accused-appellants.
The defense of alibi and denial is unavailing in view of the positive identification of accused-
appellants and there being no physical impossibility for them to commit the crimes charged. [20] It
is well-settled that alibi is a defense which is inherently weak and difficult to begin with, and it
cannot stand against the positive identification of accused-appellants as the perpetrators of the
crimes by victims Medrano and Rebujio through the latter's ante-mortem statement.[21] Moreover,
there is no dispute that it was not physically impossible for accused-appellants to be present at
the time and place of the incident. Defense witness Jun de Guzman testified on the proximity of
Barangay Calapugan, where accused-appellants supposedly were, to Barangay San Miguel,
where the ambush took place. According to him, at the time of the incident, the distance between
the two barangays is less than a kilometer and it takes less than five minutes to walk from one
barangay to the other. He also stated that a road connects these adjoining barangays.[22] Pagal's
father Arturo, for his part, said that the distance is more or less three kilometers which could be
traversed in fifteen minutes. The discrepancy does little to alter the finding of the court a quo that
the two barangays are so close to each other as not to preclude the possibility of the accused
being present at the place where the ambush was committed. For the defense of alibi to prosper,
the accused must prove not only that he was at some other place at the time the crime was
committed but that it was likewise physically impossible for him to be at the locus criminis at the
time of the alleged crime.[23]
The evidence for the prosecution, on the other hand, is solid and convincing. Medrano was
not only an eyewitness to the incident but was a victim himself. He has categorically identified
accused-appellants as those who staged the ambush because he saw their faces clearly when
he slowed down to avoid a road obstruction which, in all probability, was deliberately placed by
the latter who were crouching in the canal on the left side of the road before splattering their
victims with a volley of gunfire.[24] At a distance of approximately three meters only, it is not
impossible for a man of clear eyesight to positively identify persons at such range especially in
broad daylight, persons who are not casual acquaintances but kinfolk and former business
partners of the victims.
The testimony of Medrano is supported by the physical evidence and the separate
testimonies of Dr. Bulosan, Rebujio's widow, and Pat. Arciaga. The ante-mortem statement,
admitted in evidence as part of the res gestae, further revealed that the late Rebujio named one
of the assailants as "Boy" Lamqui, which was never disputed by the defense throughout the entire
proceeding, hence, proving familiarity between accused-appellants and their victims.
The Court agrees with the trial court that for the death of Rebujio, accused-appellants are
guilty of murder. The allegations of treachery, evident premeditation, and craft charged in the
information were duly proved by the prosecution and never refuted by the defense. The court
a quo also correctly convicted them for attempted murder of Paquito Medrano, instead of
frustrated murder as charged in the information, because the injuries sustained by Medrano were
merely superficial and not capable of causing his death even without timely medical intervention.
No mortal wound having been inflicted upon the victim, the offenders failed to perform all the acts
of execution which would have produced the felony. They are, therefore, guilty only of attempted
murder.[25]
WHEREFORE, the decision appealed from is hereby AFFIRMED, with the modification as to
the award of moral damages which is hereby reduced to P10,000.00 in Criminal Case No. T-1061
and to P50,000.00 in Criminal Case No. T-1086.
SO ORDERED.
Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

[G.R. No. 106582. July 31, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUPERTO BALDERAS y

CABUSOG, accused-appellant.

DECISION
MENDOZA, J.:

This is an appeal from the decision dated July 10, 1992 of the Regional Trial Court at
Dumaguete City (Branch 30), finding accused-appellant Ruperto Balderas y Cabusog guilty of the
murder and sentencing accused-appellant to reclusion perpetua, and ordering him to indemnify
the heirs of the victim Gilbert Cadiente in the amount of P50,000.00 and to pay costs.[1]
It appears that in the evening of March 16, 1991 (not March 17, 1991 as some of the
witnesses had mistakenly testified), William Devila met accused-appellant Ruperto Balderas and
the latters companions, Mckinly Diada and Samuel Casido, as the latter were on their way home
from work in Sitio Matambok, Barangay Mandalupang in the Municipality of Manjuyod, Negros
Oriental. The three, who are sugar cane plantation workers, were carrying their lading or cane
knives.[2] William Devila invited the three to go with him to the Mayflower dance at Sitio Matambok
and enjoy themselves a little. The three agreed. They arrived at the dance hall at 8:00 in the
evening and proceeded to a store beside the place where the dance was to be held and there
had a drinking session. They consumed one flat bottle of Aejo Rhum compliments of accused-
appellant.
What happened afterwards is subject of divergent accounts by the prosecution and the
defense. The prosecutions version is as follows:
 Per the testimony of Vicente Calidguid,[3] at around midnight, there was an altercation
between Samuel Casido and Rudy Cadiente. The two were grappling for the hunting knife held
by Casido. Calidguid saw Gilbert Cadiente approaching, presumably to help his brother Rudy, but
Gilbert was struck from behind with a cane knife by accused-appellant Ruperto Balderas. Gilbert
was hit on the back of the head. Seriously wounded, he ran towards the house of his brother Rudy
which was 12 meters away. Calidguid said he was three to four meters away from the protagonists
and that he was unaware of any previous quarrel between the deceased and the accused.
For his part, Rudy Cadiente, a barangay tanod, testified[4] that at around midnight of March
16, 1991, he saw Samuel Casido pull out a hunting knife in the middle of the dance floor. As he
tried to disarm Casido, William Devila intervened and told him to leave Casido alone and he
(Devila) would take care of Casido. As Rudy released Casidos hand, however, the latter boxed
him. They then wrestled for possession of the hunting knife. As the two fought each other, the
Petromax lamp nearby went off, rendering the place partly dark. Knowing that Casido had
companions who were armed, Rudy Cadiente ran away and went home. He identified Casidos
companions as accused-appellant Ruperto Balderas, Mckinly Diada, and William Devila. Upon
reaching his house, Rudy saw his brother downstairs wounded. He had injuries on the nape, right
foot, and in the middle of the chest. He took Gilbert to the Bais Emergency Hospital, but Gilbert
was dead on arrival. In his cross-examination, Rudy Cadiente said that he did not see his brother
attacked.[5]
Dr. Norberto J. Baldado, Jr., resident physician of the Bais General Hospital, issued a medical
certificate[6] which listed the wounds suffered by Gilbert as follows:

1) Stab wound, 1 cm., penetrating 6th ICS along left parasternal line;

2) Incised wound, 3 cm., right foot distal third anterior;

3) Lacerated wound, 5 cm., occiput.

Dr. Baldado, Jr. testified[7] that Injury No. 1[8] located just below the nipple on the left side of
the breast bone was penetrating and most probably . . . fatal as it most probably injured the blood
vessels of the heart. Injury No. 2,[9] located on the right foot, was considered by Dr. Baldado, Jr.
not fatal unless complications set in. Injury No. 3 [10] at the back part of the head was also
considered by Dr. Baldado, Jr. not fatal because it only lacerated the soft tissue of the head and
did not fracture the skull. According to Dr. Baldado, Jr., damage to the brain as a result of this
injury was possible but quite remote.
Accused-appellants defense is basically alibi. He testified[11] that in the evening of March 16,
1991, while he, Samuel Casido, and Mckinly Diada were on their way to Cagihayan, Lamugong,
Manjuyod, after coming from work in Alangilan, they met William Devila who invited them to go to
the dance in Sitio Matambok. They decided to go with Devila, bringing with them their cane knives,
which they used for work, wrapped in the sleeves of their jackets. Accused-appellant and his
companions arrived at the dance at around 8:00 p.m. They proceeded to a small store where they
had some drinks and stayed there until 10:00 p.m. Accused-appellant then went home with
Mckinly Diada. Samuel Casido had gone with his uncle Vicente Calidguid, while William Devila
had joined his gang. Accused-appellants residence is four kilometers away from Sitio
Matambok. Upon arriving at his house, accused-appellant went to sleep. Diada proceeded to his
house farther down the road. The following morning, accused-appellant was told by Julio Palagtiw
that he and Diada were wanted for the killing of Gilbert Cadiente. For this reason, he and Diada
went to the Office of the Chief of Police of Manjuyod to verify the information, but no sooner had
they arrived than they were taken into custody. Samuel Casido, who had earlier been arrested,
pointed to them as his companions. Accused-appellant and Diada stayed in jail from March 19 to
24 until they were released on the 25th upon the intercession of Alberto and Rudy Cadiente and
Devila. Accused-appellants alibi was corroborated by Mckinly Diada[12] and William Devila.[13]
Devilas testimony added further details regarding the fight between Samuel Casido and Rudy
Cadiente. He testified that after failing to stop the fight, he left the protagonists, but, as he stepped
back, he bumped the lamp post and as a result the light was extinguished. He moved over to a
place 30 meters away where there was a light and saw the fight break up as Samuel Casido ran
away and Rudy Cadiente went home, although before going Rudy hurled a stone at
Casido.[14] Rudy Cadientes house could be seen from where the witness was. The people in the
house were agog as they found Gilbert Cadiente crawling on the ground wounded.[15]
In his cross-examination, Devila was shown the affidavit he executed dated March 20, 1991.
He denied having made the answer to Question No. 3, in which he pointed to Samuel Casido as
having stabbed Gilbert Cadiente. He said that he had merely been made to make the answer by
Rudy Cadiente.[16]
The defense also called as witness SPO1 Jaime Tolete, who had filed the original criminal
complaint against accused-appellant. Tolete testified concerning entries in the police blotter of
the PNP Police Station of Manjuyod. The entries read:[17]

A (Witness reads) Brgy. Capt. Jesus Cadalso Balasabas of Brgy. Mandalupang, reported to
this unit at about 1701H March 1991 while holding a benefit dance on the above-
mentioned barangay and after the dance ended they found outside the dancing hall that
one Gilbert Cadiente, 17 years old, single and a resident of Sitio Matambok, Manjuyod
was lying on the ground between life and death and thereby his elder brother, Rudy
Cadiente saw him and found out that said victim has stab wound at the center of his
breast and allegedly stabbed by unknown person/persons and said victim was rushed to
the hospital for treatment but already died while on the way to the hospital.
Sgd. Dominador Acabal.

In reference to Entry 0582 brother of victim, Rudy Cadiente, a Brgy. Ronda came to this
office and told the investigator that he allegedly saw the assailants of his younger brother
wherein he further stated that these persons were seen at the dancing area of said brgy.
and were making trouble thereat. The ff. were (1) Samuel Casido (2) Perto Balderas (3)
Misoy (surname unknown) Sgd. SPO3 Errol Pineda.

Upon follow-up by elements of this unit, Samuel Casido was picked up at this residence
and stated that he was at the scene with the ff. persons that were his companions,
namely: William Devila, Perto Balderas and Mckinly Diada, all residents of Sit.
Cagihayan, Brgy. Lamogong, this municipality. He further stated that this William Devila
struck first the petromax that gave light to the dancing area. Samuel Casido is detained
in jail for further investigation.

Another entry: In reference to Entry 0582, page 090 re murder case that on or about
0345H 18 March 1991 one Restituto Palagtiw, a Brgy. Ronda of Brgy. Lamogong, this
municipality, brought to this station 2 persons in the name of Mckinly Diada and Ruperto
Balderas, all of Sit. Cagihayan, Brgy. Lamogong this municipality. Subject persons were
the subject of said murder case and were detained for further investigation.
 Another entry: In reference to Entry 0582, 0584 and 0585 dtd. 17 March 1991 re hacking
and stabbing to death of one Gilbert Cadiente, suspect was apprehended by element of
this unit one William Devila y Picante and detained for further investigation.

Reference to Entry 0582, 0584, 0585, 0588 and 0592 dtd. 17 & 18 March 1991 re murder
case at Mandalupang this municipality, turned over to this unit a plastic bag with cane
knife, clothing and 2 plastic plates owned by Samuel Casido by Brgy. Ronda Rudy
Cadiente. Sgd. Dominador Acabal. That is all.

On July 29, 1992, the trial court rendered judgment finding accused-appellant guilty beyond
reasonable doubt of murder and sentencing him to reclusion perpetua, and ordering him to
indemnify the heirs of Gilbert Cadiente in the amount of P50,000.00 and to pay costs.
In its decision, the RTC disregarded Exhs. 1-4 of the defense, which were the affidavits taken
during the preliminary investigation. Exh. 1 was William Devilas affidavit in the dialect dated May
22, 1991, retracting his affidavit dated March 20, 1991 (Exh. 1-a). Exh. 2 was Alberto Cadientes
affidavit, while Exh. 3 was that of Rudy Cadiente. Xerox copies of certain pages of the police
blotter (Exhs. 4 and 4-a) were likewise excluded.[18] The court explained that -

Exhibit 1 is inadmissible as evidence as it is not accompanied by a translation in an official

language as required by Section 33, Rule 132 of the Revised Rules on Evidence. Exhibits 1-
a, 2 and 3 which are alleged affidavits are not only unidentified by the affiants, but have not
been testified to as authentic by the person who certified therein that they are true
copies. Exhibit 4 is not certified as a faithful reproduction of the original entries which it
purports to represent. It is, therefore, worthless as secondary evidence.

Exhibits 1 to 4, therefore, cannot be considered in favor of Accused by reason of the foregoing

infirmities.

With the exception of Devilas affidavit, the affidavits pointed to Samuel Casido as the person
who assaulted Gilbert Cadiente during the dance. In its decision, the RTC stated:

While the evidence has amply shown the treacherous participation of Accused Ruperto Balderas
in inflicting injuries on Gilbert Cadiente, justice has not been fully served by the absence of a
determination of the author or authors of the other injuries sustained by said victim as found by
the medical officer. During the trial the prosecution has passed sub-silencio the matter of the stab
wound in particular which the medical officer described as most probably fatal among the three
injuries. It must have been the active cause of the death of Gilbert Cadiente, yet no one has been
called upon to answer for it. This is a sad commentary on the criminal justice system in this
jurisdiction. Accused Ruperto Balderas should not suffer alone for the killing of Gilbert Cadiente,
for all that he may have done to said victim. A little extra effort, one that is sincere, well-meaning
and diligent, is all that is needed approximate the administration of justice to the people of the
State who have been offended by the criminal killing of one of them.

It is, therefore, suggested that another inquiry by the Police and by the office of the Provincial
Prosecutor be undertaken for the purpose of identifying the person or persons responsible for the
infliction of the stab wound and the incised wound which contributed to the death of Gilbert
Cadiente so that he or they may be made to answer for the same.
 Accused-appellant appealed, assigning the following errors as having been committed by the
trial court:

I. THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND

REASONABLE DOUBT OF THE CRIME OF MURDER.

II. GRANTING WITHOUT ADMITTING THAT THE ACCUSED HACKED THE VICTIM ONCE
AT THE BACK OF HIS HEAD ACCORDING TO THE LONE TESTIMONY OF VICENTE
CALIDGUID, THE SAME WAS NOT A FATAL WOUND AS TESTIFIED BY THE
DOCTOR.

Accused-appellant lays store by the fact that, during preliminary investigation, witnesses
including the victims brother Rudy Cadiente, pointed to Samuel Casido as the one who attacked
the victim with a cane knife and an icepick. He argues that even granting that he indeed hacked
the victim, he could not be held liable for murder as the wound he inflicted was not fatal.
First. As in all criminal prosecutions, the conviction must be based on the strength of the
prosecutions evidence and not on the weakness or absence of evidence of the defense.[19] In this
case, the only prosecution eyewitness, Vicente Calidguid, testified that accused-appellant struck
the victim Gilbert Cadiente with a cane knife once, hitting him on the nape. The wound inflicted,
which the doctor identified as Wound No. 3, was according to him not a fatal one.
The Solicitor General argues that infliction of this wound is sufficient to convict accused-
appellant of murder, because it could have caused brain injury as admitted by the attending
physician [and] contributed as cause of the death of the victim.[20]
This possibility, however, is a remote one as the following testimony of Dr. Norberto Baldado,
Jr. explains:[21]
Q Let us proceed to Finding No. 3 doctor, please elaborate.
A Lacerated wound, 5 cm. occiput, it is somewhere here (witness indicating in the
sketch).
Q Please indicate that in your head.
A (Witness touching the back part of his head).
Q What instrument could have caused this type of wound, doctor?
A A sharp-bladed instrument.
Q Are you familiar with the bolo used in cutting sugar cane?
A Yes.
Q Is it possible that that type of instrument could have caused this kind of injury?
A It is possible because it is a bladed instrument.
Q And do you consider this as a fatal wound, doctor?
A No, it is not fatal.
Q Did you try to find out doctor, if there was any fracture of the skull as a result of the
injury?
A Yes, and I found that there was no fracture underlying the injury.
 Q Did you try to find out doctor, other fractures that might have resulted in this kind of
injury, your third finding?
A Well, it is a head injury although how subtle, the victim might sustain a cerebral or brain
injury such as hemorrhage or hematoma formation.
Q In this particular case doctor, did you try to find out whether probably that type of injury
precipitated the death of the victim?
A It is possible although it may be remote because this type of injury has not caused a
skull fracture as such.
Q Is it almost necessary that in this type of injury especially located on the head, is it
almost necessary that there should be a fracture of the skull that brain injury will not
...?
A It is not necessary that the fracture should sustain a brain injury. However in this case,
the instrument used was a bladed instrument and it seems improbable that the head
was hit so hard by the instrument the skull was not fractured, it was only the soft
tissue there that was lacerated, the soft tissue sustained by the victim.
Q But as you said there was a possibility that as a result of this injury and considering its
nature, brain damage could result?
A More so with the blunt injury.
Q And by that answer doctor, you mean that it is possible?
A It is possible but quite remote.
The Court cannot convict accused-appellant of murder on this remote possibility that Injury
No. 3 could have caused accused-appellants death. Indeed, the prosecutions evidence in this
regard, consisting of Dr. Baldado, Jr.s testimony, fails to establish that the act of the accused-
appellant produced the injury constituting the penal offense for which he stands convicted, i.e.,
murder.[22]
Dr. Baldado, Jr. found it was Injury No. 1, the stab wound located on the left side of the victims
chest, which was penetrating and most probably . . . fatal because right beneath that area [are]
the blood vessels of the heart and there are many blood vessels there and most probably it was
injured by that stab wound.[23]
Since there is no eyewitness account regarding the infliction of the fatal wound, it becomes
necessary to consider if there is circumstantial evidence to make accused responsible for the
same. The circumstances that might possibly tie accused-appellant to this wound are the
following: (1) the fact that accused-appellant attacked Gilbert Cadiente and wounded him on the
back of his head; (2) the fact that the fatal wound on the chest was caused by a pointed
instrument;[24] and (3) the fact that accused-appellants lading or cane knife was a pointed
instrument.
These circumstances must be appraised in light of the requirements of the Rules of Court for
sufficiency of circumstantial evidence, i.e., (1) there is more than one circumstance; (2) the facts
from which the inferences are derived are proven; and (3) the combination of all the circumstances
is such as to produce a conviction beyond reasonable doubt.[25] The circumstances must form an
unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to
the exclusion of all others, as the guilty person.[26]
 First of all the fact that accused-appellant wounded Gilbert Cadiente does not necessarily
mean that he also inflicted all the wounds which the victim was found to have suffered. Indeed
Vicente Calidguids testimony was that accused-appellant hit Gilbert only once after which both
he and his victim ran away. Calidguids testimony was as follows:[27]
FISCAL HERMOSA:
Q: How many times did Ruperto Balderas hack Gilbert Cadiente?
A: Once.
Q: What happened to Gilbert Cadiente upon being hit by the hack of Ruperto Balderas?
A: He went to the house of his brother Rudy Cadiente.
Q: What about Ruperto Balderas, what did he do after hacking Gilbert Cadiente?
A: They ran away.
Q: You said they, whom are you referring as they?
A: He (witness pointing to the accused).
xxx xxx xxx
ATTY. GARCIA:
Q: And Gilbert Cadiente upon being hit by the blow of the cane knife at his head went
towards the house of his elder brother, am I right?
A: Yes.
Q: And where was the accused then at that time when this Gilbert Cadiente went to the
house of his elder brother?
A: He ran.
Q: Towards where?
A: He went home.
Q: How about the cane knife, where was it?
A: He brought it along with him.
It is quite possible that after hitting the victim once, accused-appellant ran after the victim and
wounded him again. But this is a conjecture and a surmise which cannot stand for proof, much
less be the basis of a conviction. Another person could have inflicted the fatal stab. In fact the trial
court suspected there was at least another person responsible for Gilbert Cadientes killing and it
said so in its decision quoted above.
We next go to the matter of the weapon used to inflict the wound in question, a sharp-pointed
instrument which penetrated to the heart of the victim. There were a number of persons present
at the dance who also had cane knives, among whom were accused-appellants companions,
Samuel Casido and Mckinly Diada.
Moreover, the medical certificate describes the fatal wound as 1 cm. long. It is doubtful
whether a cane knife which has a maximum width of five inches, although possessing a sharp
pointed end, can leave a surface wound of that minuscule length if it had to penetrate to the heart,
thereby damaging the blood vessels thereof. A more probable weapon would be an icepick.
 In sum, the circumstantial evidence in this case does not point with certainty to accused-
appellant as responsible for the fatal wound suffered by Gilbert Cadiente. In this, as in all criminal
cases, speculation and probabilities cannot take the place of proof required to establish guilt of
an accused beyond reasonable doubt.[28] Suspicion, no matter how strong, can not sway
judgment.[29] Here, the means and the opportunity to inflict the fatal wound were not accused-
appellants alone to the exclusion of all others.
Second. The trial court nonetheless found accused-appellant guilty of the murder of Gilbert
Cadiente because of his treacherous participation in inflicting injuries on Gilbert Cadiente. This
would be correct if there was a conspiracy. But, as noted by the Solicitor General, the information
did not allege conspiracy and the number of the author/authors of the other injuries as in fact, it
charged accused-appellant of having inflicted all the wounds.[30]
At any rate, conspiracy must be proven beyond reasonable doubt.[31] In this case not only
was there no evidence of prior agreement. There was also no showing of concerted action taken
to kill Gilbert Cadiente.
Third. Although there were many present at the dance who could possibly have witnessed
the killing of Gilbert Cadiente, the prosecution was able to present only one eyewitness, Vicente
Calidguid, and that was only with respect to Injury No. 3, a non-fatal wound. The police seized a
cane knife and certain clothing in relation to the incident,[32] but for one reason or another they did
not produce them during trial. On the other hand, the doctor who executed a medical certificate
could only talk of probabilities as to the cause of the victims death for lack of an autopsy.[33]This
gap in the prosecutions evidence moved the trial court to call for zeal and diligence in investigative
work by the law enforcement officials concerned.
Fourth. Can accused-appellant totally escape criminal liability in this case?
The answer is in the negative. Accused-appellants main defense is alibi. For alibi to prosper,
he must prove not only that he was not present at the scene of the crime but also that it was
physically impossible for him to have been present there at the time the offense was
committed.[34]This accused-appellant failed to do.
By his own account, he left the dance at around 10:00 in the evening to go to his home four
kilometers away.[35] Walking with Mckinly Diada, he arrived home at past 11:00 oclock.[36] (Per
Diadas testimony, he looked at his watch and determined accused-appellants arrival to be at
about 11 p.m.)[37] Thus it was possible, assuming that accused-appellant had indeed gone home,
for him to return to the dance and be present when Rudy Cadiente and Samuel Casido had an
altercation at past midnight.
Moreover, there are contradictions in accused-appellants alibi. He testified that when he left
the dance at around 10:00 with Mckinly Diada, Samuel Casido was no longer there, having earlier
gone with his uncle, Vicente Calidguid.[38] But William Devila, who was called to corroborate
accused-appellants alibi, belied the latters claim by stating that Casido left with Vicente
Calidguid two minutes after accused-appellant and Mckinly Diada had left. [39]It was therefore
possible that accused-appellant stayed in the place until the time when the fight between Rudy
Cadiente and Samuel Casido took place. Hence the testimony of Calidguid that accused-
appellant actually struck Gilbert Cadiente with his cane knife.
There is also variance between accused-appellants testimony and Mckinly Diadas account
of the state of accused-appellants household when accused-appellant arrived home. Accused-
appellant claimed that when he arrived home, everybody was asleep already,[40] but Mckinly
Diada said accused-appellants wife and children were still awake because his youngest child is
an abnormal child which caused so much inconvenience because he is premature.[41]
 Nor can accused-appellant profit from the affidavits of William Devila dated March 20, 1991
(Exh. 1-a), Alberto Cadiente (Exh. 2), and Rudy Cadiente (Exh. 3), which allegedly point to Casido
as the assailant. Devila retracted his affidavit. For its part, the trial court, as already stated,
excluded the affidavits from evidence for the reason that they had not been identified by the
affiants.
Indeed, because Alberto Cadiente was not presented to testify, his affidavit could only
constitute hearsay evidence. On the other hand, Rudy Cadiente was not confronted with his
affidavit in which he allegedly stated that Samuel Casido was his brothers assailant which would
cast doubt on his testimony in court that he did not see who his brothers assailant was. Thus
Calidguids eyewitness account that accused-appellant assaulted Gilbert Cadiente from behind
stands unrebutted.[42]
Fifth. We go now to the determination of accused-appellants criminal liability. We agree with
the Solicitor General that the weapon used and the location of the wound which is at the back of
the head, a vital part of the body, unmistakably show an intent to kill. However for some reason
other than his own desistance, accused-appellant was not able to perform all the acts of execution
necessary to consummate the killing, since the wound he had inflicted was not fatal. Accused-
appellant ran away after delivering the blow to the back of the head of the victim. As all acts of
execution necessary to produce the felony were not done, the crime for which he can be held
liable is only that of attempted murder.[43]
Accused-appellants attack was sudden and done without any provocation. Because it was
made from behind, the victim was unable to defend himself. This circumstance constitutes
treachery [44] which qualifies the crime to attempted murder.
Under Art. 51 of the Revised Penal Code, the penalty to be imposed upon the principal of an
attempted crime shall be lower by two degrees than that prescribed for the consummated
felony. Prior to its amendment by R.A. No. 7659, Art. 248 provided that the crime of murder shall
be punished by reclusion temporal in its maximum period to death. In accordance with Art. 61(3),
the penalty two degrees lower would be prision correccional maximum to prision
mayor medium. Since there is no modifying circumstance, the medium period of the penalty,
which is prision mayor minimum, should be imposed as the maximum penalty. Under
Indeterminate Sentence Law, accused-appellant is entitled to a minimum penalty of arresto
mayor in its maximum period to prision correccional in its medium period as the penalty next lower
than the penalty for attempted murder.
WHEREFORE, the appealed decision is hereby MODIFIED, finding accused-appellant
Ruperto Balderas y Cabusog guilty of attempted murder only and sentencing him to an
indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum,
to eight (8)years of prision mayor, as maximum, with the accessory penalties provided by law,
and to pay costs.
SO ORDERED.
Regalado, (Chairman), Romero, and Puno, JJ., concur.
Torres, Jr., J., on leave.
[G.R. No. 116736. July 24, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN ORTEGA, JR. y CONJE,

MANUEL GARCIA y RIVERA and JOHN DOE, accused, BENJAMIN ORTEGA,
JR. y CONJE and MANUEL GARCIA y RIVERA, accused-appellants.

DECISION
PANGANIBAN, J.:

A person who commits a felony is liable for the direct, natural and logical consequences of
his wrongful act even where the resulting crime is more serious than that intended. Hence, an
accused who originally intended to conceal and to bury what he thought was the lifeless body of
the victim can be held liable as a principal, not simply as an accessory, where it is proven that the
said victim was actually alive but subsequently died as a direct result of such concealment and
burial. Nonetheless, in the present case, Appellant Garcia can not be held liable as a principal
because the prosecution failed to allege such death through drowning in the Information. Neither
may said appellant be held liable as an accessory due to his relationship with the principal killer,
Appellant Ortega, who is his brother-in-law.

Statement of the Case

This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and
Manuel Garcia from the Decision,[1] dated February 9, 1994 written by Judge Adriano R.
Osorio,[2] finding them guilty of murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an Information[3] dated
October 19, 1992, as follows:
That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring together
and mutually helping one another, without any justifiable cause, with treachery and
evident premeditation and with abuse of superior strenght (sic) and with deliberate intent
to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab
repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR
MASANGKAY y ABLOLA, thereby inflicting upon the latter serious physical injuries which
directly caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio,[4] pleaded
not guilty to the charge.[5] Accused John Doe was then at large.[6] After trial in due course, the
court a quo promulgated the questioned Decision. The dispositive portion reads:[7]
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y
Rivera [g]uilty beyond reasonable doubt of the crime charged, the Court hereby
sentenced (sic) them to suffer the penalty of RECLUSION PERPETUA and to pay the
costs of suit.
Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral
expenses of deceased Andre Mar Masangkay and death indemnity of P50,000.00.
 The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria[8] who
took over from the Public Attorneys Office as counsel for the accused.

The Facts
Evidence for the Prosecution

The trial court summarized the testimonies of the prosecution witnesses as follows:[9]
Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the
afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo Ortega, Roberto
San Andres were having a drinking spree in the compound near the house of Benjamin
Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while they were
drinking, accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk
arrived and joined them. That victim Andre Mar Masangkay answered the call of nature
and went to the back portion of the house. That accused Benjamin Ortega, Jr. followed
him and later they [referring to the participants in the drinking session] heard the victim
Andre Mar shouted, Dont, help me! (Huwag, tulungan ninyo ako!) That he and Ariel
Caranto ran towards the back portion of the house and [they] saw accused Benjamin
Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal with his face
up and stabbing the latter with a long bladed weapon. That Ariel Caranto ran and fetched
Benjamin Ortega, Sr., the father of accused Benjamin, Jr. That he [Quitlong] went to
Romeo Ortega in the place where they were having the drinking session [for the latter]
to pacify his brother Benjamin, Jr. That Romeo Ortega went to the place of the stabbing
and together with Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay
from the canal and brought Andre Mar to the well and dropped the latter inside the
well. That Romeo Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones
measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight to the body
of Andre Mar Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not
to tell anybody of what he saw. That he answered in the affirmative and he was allowed
to go home. That his house is about 200 meters from Romeo Ortegas house. That upon
reaching home, his conscience bothered him and he told his mother what he
witnessed. That he went to the residence of Col. Leonardo Orig and reported the
matter. That Col. Orig accompanied him to the Valenzuela Police Station and some
police officers went with them to the crime scene. That accused Benjamin Ortega, Jr. and
Manuel Garcia were apprehended and were brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before he was presented
as witness in this case. That he narrated the incident to his mother on the night he
witnessed the killing on October 15, 1992. That on October 15, 1992 at 5:30 in the
afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and
one Boyet were already having [a] drinking spree and he joined them. That accused
Benjamin Ortega, Jr. and Manuel Garcia were not yet in the place. That the stabbing
happened between 12:00 midnight and 12:30 a.m. That they drank gin with finger foods
such as pork and shell fish. That he met the victim Andre Mar Masangkay only on that
occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined them at about
11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel
Garcia in one hand and Andre Mar Masangkay, during the drinking session. That at about
12:30 a.m. Andre Mar Masangkay answered the call of nature and went to the back
portion of the house. That he cannot see Andre Mar Masangkay from the place they were
having the drinking session. That he did not see what happened to Andre Mar
Masangkay. That he only heard Masangkay asking for help. That accused Manuel
Garcia was still in the drinking session when he heard Masangkay was asking for
help. That Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors. That
when he heard Andre Mar Masangkay was asking for help, he and Ariel Caranto ran to
the back portion of the house and saw Benjamin Ortega, Jr. on top of Andre Mar
Masangkay and stabbing the latter. That Andre Mar Masangkay was lying down with his
back in the canal and Benjamin Ortega, Jr. on top stabbing the former. That he did not
see any injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his
brother Benjamin, Jr. That he did not do anything to separate Benjamin Ortega, Jr. and
Masangkay.That he knows that Andre Mar Masangkay was courting Raquel Ortega. That
Raquel Ortega asked permission from Andre Mar Masangkay when she left between
8:00 and 9:00 p.m. That there was no trouble that occurred during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his
neighbor for about 9 years. That on October 16, 1992 at 5:00 in the morning, he was
summoned by Diosdado Quitlong and reported to him the stabbing incident that occurred
at Daangbakal near the subdivision he is living.That he relayed the information to the
Valenzuela Police Station and a police team under police officer Param accompanied
them to the place. That he asked the police officers to verify if there is a body of person
inside the well. That the well was covered with stones and he asked the police officers to
seek the help of theneighbors (sic) to remove the stones inside the well. That after the
stones were removed, the body of the victim was found inside the well. That the lifeless
body was pulled out from the well. That the body has several stab wounds. That he came
to know the victim as Andre Mar Masangkay. That two men were arrested by the police
officers.
On cross-examination, he said that he saw the body when taken out of the well with
several stab wounds. That Diosdado Quitlong told him that he was drinking with the victim
and the assailants at the time of the incident. That Benjamin Ortega, Jr. stabbed the
victim while the latter was answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted
[an] autopsy on the cadaver of Andre Mar Masangkay on October 16, 1992 at the
Valenzuela Memorial Homes located at Macarthur Highway. That he prepared the
autopsy report and the sketch of human head and body indicating the location of the stab
wounds. That the cause of death is multiple stab wounds, contributory, [a]sphyxia by
submersion in water. That there were 13 stab wounds, 8 of which were on the frontal part
of the body, 2 at the back and there were contused abrasions around the neck and on
the left arm. There was stab wound at the left side of the neck. That the contused
abrasion could be produced by cord or wire or rope. That there is (an) incised wound on
the left forearm. That the stab wounds which were backward downward of the body
involved the lungs. That the victim was in front of the assailant. That the stab wound on
the upper left shoulder was caused when the assailant was in front of the victim. That the
assailant was in front of the victim when the stab wound near the upper left armpit was
inflicted as well as the stab wound on the left chest wall. That the stab wound on the back
left side of the body and the stab wound on the back right portion of the body may be
produced when the assailant was at the back of the victim. That the assailant was in front
of the victim when the stab wound[s] on the left elbow and left arm were inflicted. That
the large airway is filled with muddy particles indicating that the victim was alive when
the victim inhaled the muddy particles. The heart is filled with multiple hemorrhage, loss
of blood or decreased of blood. The lungs is filled with water or muddy particles. The
 brain is pale due to loss of blood. The stomach is one half filled with muddy particles
which could [have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of the
victim. That he cannot tell if the assailant or the victim were standing. That it is possible
that the stab wounds was (sic) inflicted when both [referring to participants] were standing
or the victim was lying down and the assailant was on top. That he cannot tell the number
of the assailants.

Evidence for the Appellants

Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his
wife, Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency
Hospital. He left the hospital at seven o clock in the morning, went home, changed his clothes
and went to work.[10] After office hours, he and Benjamin Ortega, Jr. passed by the canteen at
their place of work. After drinking beer, they left at eight o clock in the evening and headed
home. En route, they chanced on Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay,
who invited them to join their own drinking spree. Thereupon, Appellant Garcias wife came and
asked him to go home because their daughter was still sick.To alleviate his daughters illness, he
fetched his mother-in-law who performed a ritual called tawas. After the ritual, he remained at
home and attended to his sick daughter. He then fell asleep but was awakened by police officers
at six o clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her husband. She however
added two other participants in the drinking session aside from Diosdado Quitlong alias Mac-mac
and Andre Mar Masangkay, namely, a Mang Serafin and Boyet Santos.[11]
Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel
Garcia.[12] According to him, between eleven and twelve o clock in the evening, Masangkay left
the drinking session. Thirty (30) minutes after Masangkay left, he also left the drinking place to
urinate.[13] He went behind the house where he saw Masangkay peeping through the room of his
sister Raquel. He ignored Masangkay and continued urinating.[14] After he was through,
Masangkay approached him and asked where his sister was. He answered that he did not
know.Without warning, Masangkay allegedly boxed him in the mouth, an attack that induced
bleeding and caused him to fall on his back. When he was about to stand up, Masangkay drew a
knife and stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then
gripped his neck with his left arm and threatened to kill him. Unable to move, Ortega shouted for
help. Quitlong came and, to avoid being stabbed, grabbed Masangkays right hand which was
holding the knife. Quitlong was able to wrest the knife from Masangkay and, with it, he stabbed
Masangkay ten (10) times successively, in the left chest and in the middle of the stomach. When
the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit. [15] Quitlong
chased Masangkay who ran towards the direction of the well. Thereafter, Ortega went home and
treated his injured left armpit and lips. Then, he slept.
When he woke up at six o clock the following morning, he saw police officers in front of his
house. Taking him with them, the lawmen proceeded to the well. From the railroad tracks where
he was asked to sit, he saw the police officers lift the body of a dead person from the well.He
came to know the identity of the dead person only after the body was taken to the police
headquarters.[16]
The Trial Courts Discussion

The trial court explained its basis for appellants conviction as follows:[17]
The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel
Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping the victim Andre Mar
Masangkay who was still alive and breathing inside the deep well filled with water, head
first and threw big stones/rocks inside the well to cover the victim is a clear indication of
the community of design to finish/kill victim Andre Mar Masangkay. Wounded and
unarmed victim Andre Mar Masangkay was in no position to flee and/or defend himself
against the three malefactors. Conspiracy and the taking advantage of superior strength
were in attendance. The crime committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and manner in
which assistance is rendered to the person inflicting the fatal wound may determine
complicity where it would not otherwise be evidence (People vs. Yu, 80 SCRA 382
(1977)).
Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse
the heirs of victim Andre Mar Masangkay the amount of P35,000.00 for the funeral
expenses of the deceased.

The Issues

In their ten-page brief, appellants fault the trial court with the following: [18]
I. The trial court erred in holding that there is conspiracy on the basis of the
prosecutions evidence that at the time both accused and one Romeo Ortega
lifted the body of Andrew Masangkay from where he succumbed due to stab
wounds and brought and drop said body of Andrew Masangkay to the well to
commit murder;
II. The trial court erred in finding and holding that Andrew Masangkay was still alive
at the time his body was dropped in the well;
III. The trial court erred in convicting Manuel Garcia and in not acquitting the latter of
the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only
of homicide alone.

On the basis of the records and the arguments raised by the appellants and the People, we
believe that the question to be resolved could be simplified thus: What are the criminal liabilities,
if any, of Appellants Ortega and Garcia?

The Courts Ruling

We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant
Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega

The witnesses for the prosecution and defense presented conflicting narrations. The
prosecution witnesses described the commission of the crime and positively identified appellants
as the perpetrators. The witnesses for the defense, on the other hand, attempted to prove denial
and alibi. As to which of the two contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this regard, the trial court held:[19]
The Court has listened intently to the narration of the accused and their witnesses and
the prosecution witnesses and has keenly observed their behavior and demeanor on the
witness stand and is convinced that the story of the prosecution is the more believable
version. Prosecution eyewitness Diosdado Quitlong appeared and sounded credible and
his credibility is reinforced by the fact that he has no reason to testify falsely against the
accused. It was Diosdado Quitlong who reported the stabbing incident to the police
authorities. If Quitlong stabbed and killed the victim Masangkay, he will keep away from
the police authorities and will go in hiding. x x x
Because the trial court had the opportunity to observe the witnesses demeanor and
deportment on the stand as they rendered their testimonies, its evaluation of the credibility of
witnesses is entitled to the highest respect. Therefore, unless the trial judge plainly overlooked
certain facts of substance and value which, if considered, might affect the result of the case, his
assessment of credibility must be respected.[20]
In the instant case, we have meticulously scoured the records and found no reason to reverse
the trial courts assessment of the credibility of the witnesses and their testimonies[21] insofar as
Appellant Ortega is concerned. The narration of Eyewitness Diosdado Quitlong appears to be
spontaneous and consistent. It is straightforward, detailed, vivid and logical. Thus, it clearly
deserves full credence.
On the other hand, in asserting alibi and denial, the defense bordered on the
unbelievable. Appellant Ortega claimed that after he was able to free himself from Masangkays
grip, he went home, treated his injuries and slept.[22] This is not the ordinary reaction of a person
assaulted. If Ortegas version of the assault was true, he should have immediately reported the
matter to the police authorities, if only out of gratitude to Quitlong who came to his
rescue. Likewise, it is difficult to believe that a man would just sleep after someone was stabbed
in his own backyard.Further, we deem it incredible that Diosdado Quitlong would stab Masangkay
ten (10) times successively, completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that Masangkay persisted
in choking him instead of defending himself from the alleged successive stabbing of
Quitlong.[23] The natural tendency of a person under attack is to defend himself and not to persist
in choking a defenseless third person.

Murder or Homicide?

Although treachery, evident premeditation and abuse of superior strength were alleged in the
information, the trial court found the presence only of abuse of superior strength.
We disagree with the trial courts finding. Abuse of superior strength requires deliberate intent
on the part of the accused to take advantage of such superiority. It must be shown that the
accused purposely used excessive force that was manifestly out of proportion to the means
available to the victims defense.[24] In this light, it is necessary to evaluate not only the physical
condition and weapon of the protagonists but also the various incidents of the event.[25]
In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortegas
availment of force excessively out of proportion to the means of defense available to the victim to
defend himself. Quitlong described the assault made by Appellant Ortega as follows:[26]
ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a drinking spree with
Andrew Masangkay and where you witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the
house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr. and
the house of his son Benjamin Ortega, Jr. are near each other.
xxx xxx xxx
Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel
Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y Ducay, Roberto
San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk
and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted by Atty. Altuna)
Q Who is that we?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega,
Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay answer
to a call of nature and went to the back portion of the house, and Benjamin Ortega,
Jr. followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the shout said Huwag, tulungan nyo ako.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and
after you heard huwag, tulungan nyo ako coming from the mouth of the late Andrew
Masangkay, what happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
 A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was
stabbing Andrew Masangkay.
Q Will you please demonstrate to the Honorable Court how the stabbing was done telling
us the particular position of the late Andrew Masangkay and how Benjamin Ortega,
Jr proceeded with the stabbing against the late victim, Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega,
Jr. was nakakabayo and with his right hand with closed fist holding the weapon, he
was thrusting this weapon on the body of the victim, he was making downward and
upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A I cannot count the number of times.
It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr.
was only five feet and five inches tall.[27] There was no testimony as to how the attack was
initiated. The accused and the victim were already grappling when Quitlong arrived. Nothing in
the foregoing testimony and circumstances can be interpreted as abuse of superior
strength. Hence, Ortega is liable only for homicide, not murder.

Second Issue: Liability of Appellant Manuel Garcia

Appellants argue that the finding of conspiracy by the trial court is based on mere assumption
and conjecture x x x.[28] Allegedly, the medico-legal finding that the large airway was filled with
muddy particles indicating that the victim was alive when the victim inhaled the muddy particles
did not necessarily mean that such muddy particles entered the body of the victim while he was
still alive. The Sinumpaang Salaysay of Quitlong stated, Nilubayan lang nang saksak nang
mapatay na si Andrew ni Benjamin Ortega, Jr. Thus, the prosecution evidence shows Masangkay
was already dead when he was lifted and dumped into the well. Hence, Garcia could be held
liable only as an accessory.[29]
We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code
states that criminal liability shall be incurred by any person committing a felony (delito) although
the wrongful act done be different from that which he intended. The essential requisites for the
application of this provision are that (a) the intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit graver wrong was primarily caused by the actors
wrongful acts. In assisting Appellant Ortega, Jr. carry the body of Masangkay to the well,
Appellant Garcia was committing a felony. The offense was that of concealing the body of the
crime to prevent its discovery, i.e. that of being an accessory in the crime of homicide.[30] Although
Appellant Garcia may have been unaware that the victim was still alive when he assisted Ortega
in throwing the body into the well, he is still liable for the direct and natural consequence of his
felonious act, even if the resulting offense is worse than that intended.
True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy
conducted by the NBI medico-legal officer showed that the victim at that time was still alive, and
that he died subsequently of drowning.[31] That drowning was the immediate cause of death was
medically demonstrated by the muddy particles found in the victims airway, lungs and
stomach.[32] This is evident from the expert testimony given by the medico-legal officer, quoted
below:[33]
ATTY. ALTUNA:
Q Will you please explain this in simple language the last portion of Exhibit N, beginning
with tracheo-bronchial tree, that is sentence immediately after paragraph 10, 2.5
cms. Will you please explain this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be inhaled.
Q So, in short, you are telling or saying to us that if there is no inhaling or the taking or
receiving of muddy particles at that time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the anterior surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of blood going to the
heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs
have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of blood.
Q And, of course, loss of blood could be attributed to the stab wound which is number
13?
 A Yes, sir.
Q And the last one, under the particular point hemothorax?
A It indicates at the right side. There are around 1,400 cc of blood that accumulate at the
thoraxic cavity and this was admixed with granular materials?
Q And what cause the admixing with granular materials on said particular portion of the
body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?
A Its due to stab wounds those muddy particles which set-in thru the stab wounds.
Q So, because of the opening of the stab wounds, the muddy particles now came in, in
that particular portion of the body and caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will you please explain
the same?
A The hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same?
A The victim could have taken these when he was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Underscoring supplied)
A Filipino authority on forensic medicine opines that any of the following medical findings may
show that drowning is the cause of death:[34]
1. The presence of materials or foreign bodies in the hands of the victim. The
clenching of the hands is a manifestation of cadaveric spasm in the effort of
the victim to save himself from drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs (edema
aquosum).
3. Presence of water and fluid in the stomach contents corresponding to the medium
where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage found in the medium
where the victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim Masangkay. It was proven that
his airpassage, or specifically his tracheo-bronchial tree, was filled with muddy particles which
were residues at the bottom of the well. Even his stomach was half-filled with such muddy
particles. The unrebutted testimony of the medico-legal officer that all these muddy particles were
ingested when the victim was still alive proved that the victim died of drowning inside the well.
The drowning was the direct, natural and logical consequence of the felony that Appellant
Garcia had intended to commit; it exemplifies praeter intentionem covered by Article 4, par. 1, of
the Revised Penal Code. Under this paragraph, a person may be convicted of homicide although
he had no original intent to kill.[35]
In spite of the evidence showing that Appellant Garcia could be held liable as principal in the
crime of homicide, there are, however, two legal obstacles barring his conviction, even as an
accessory as prayed for by appellants counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of attack[ing],
assault[ing], and stab[bing] repeatedly with a pointed weapon on the different parts of the body
one ANDRE MAR MASANGKAY y ABLOLA The prosecutions evidence itself shows that Garcia
had nothing to do with the stabbing which was solely perpetrated by Appellant Ortega. His
responsibility relates only to the attempted concealment of the crime and the resulting drowning
of Victim Masangkay. The hornbook doctrine in our jurisdiction is that an accused cannot be
convicted of an offense, unless it is clearly charged in the complaint or
information. Constitutionally, he has a right to be informed of the nature and cause of the
accusation against him. To convict him of an offense other than that charged in the complaint or
information would be a violation of this constitutional right.[36] Section 14, par. 2, of the 1987
Constitution explicitly guarantees the following:
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have a speedy, impartial, and
public trial, to meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is unjustifiable. (Underscoring
supplied)
In People vs. Pailano,[37] this Court ruled that there can be no conviction for rape on a woman
deprived of reason or otherwise unconscious where the information charged the accused of
sexual assault by using force or intimidation, thus:
The criminal complaint in this case alleged the commission of the crime through the first
method although the prosecution sought to establish at the trial that the complainant was
a mental retardate. Its purpose in doing so is not clear. But whatever it was, it has not
succeeded.
If the prosecution was seeking to convict the accused-appellant on the ground that he
violated Anita while she was deprived of reason or unconscious, such conviction could
not have been possible under the criminal complaint as worded. This described the
offense as having been committed by Antonio Pailano, being then provided with a scythe,
by means of violence and intimidation, (who) did, then and there, wilfully, unlawfully and
feloniously have carnal knowledge of the complainant, Anita Ibaez, 15 years of age,
against her will. No mention was made of the second circumstance.
 Conviction of the accused-appellant on the finding that he had raped Anita while she was
unconscious or otherwise deprived of reason -- and not through force and intimidation,
which was the method alleged -- would have violated his right to be informed of the nature
and cause of the accusation against him.[Article IV, Sec. 19, Constitution of 1973; now
Article III, Sec. 14(2)] This right is safeguarded by the Constitution to every accused so
he can prepare an adequate defense against the charge against him. Convicting him of
a ground not alleged while he is concentrating his defense against the ground alleged
would plainly be unfair and underhanded. This right was, of course, available to the
herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could
not be found guilty of qualified seduction, which had not been alleged in the criminal
complaint against him. In the case of People vs. Montes, [fn: 122 SCRA 409] the Court
did not permit the conviction for homicide of a person held responsible for the suicide of
the woman he was supposed to have raped, as the crime he was accused of -- and
acquitted -- was not homicide but rape. More to the point is Tubb v. People of the
Philippines, [fn: 101 Phil. 114] where the accused was charged with the misappropriation
of funds held by him in trust with the obligation to return the same under Article 315,
paragraph 1(b) of the Revised Penal Code, but was convicted of swindling by means of
false pretenses, under paragraph 2(b) of the said Article, which was not alleged in the
information. The Court said such conviction would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning
in an information that charges murder by means of stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia assisted in
concealing x x x the body of the crime, x x x in order to prevent its discovery, he can neither be
convicted as an accessory after the fact defined under Article 19, par. 2, of the Revised Penal
Code. The records show that Appellant Garcia is a brother-in-law of Appellant Ortega,[38] the
latters sister, Maritess, being his wife.[39] Such relationship exempts Appellant Garcia from
criminal liability as provided by Article 20 of the Revised Penal Code:
ART. 20. Accessories who are exempt from criminal liability. -- The penalties prescribed
for accessories shall not be imposed upon those who are such with respect to their
spouses, ascendants, descendants, legitimate, natural, and adopted brothers and
sisters, or relatives by affinity within the same degrees with the single exception of
accessories falling within the provisions of paragraph 1 of the next preceding article.
On the other hand, the next preceding article provides:
ART. 19. Accessories. Accessories are those who, having knowledge of the commission
of the crime, and without having participated therein, either as principals or accomplices,
take part subsequent to its commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of the
crime.
2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principal of the
crime, provided the accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason, parricide, murder, or
an attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.
 Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin
Ortega, Jr., is legally entitled to the aforequoted exempting provision of the Revised Penal
Code. This Court is thus mandated by law to acquit him.

Penalty and Damages

The award of actual damages should be reduced to P31,790.00 from P35,000.00. The
former amount was proven both by documentary evidence and by the testimony of Melba Lozano,
a sister of the victim.[40] Of the expenses alleged to have been incurred, the Court can give
credence only to those that are supported by receipts and appear to have been genuinely incurred
in connection with the death of the victim.[41]However, in line with current
jurisprudence,[42] Appellant Ortega shall also indemnify the heirs of the deceased in the sum
of P50,000.00.Indemnity requires no proof other than the fact of death and appellants
responsibility therefor.[43]
The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal
Code, which is imposable in its medium period, absent any aggravating or mitigating
circumstance, as in the case of Appellant Ortega. Because he is entitled to the benefits of the
Indeterminate Sentence Law, the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant
Benjamin Ortega, Jr. is found GUILTY of homicide and sentenced to ten (10) years of prision
mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to pay the heirs of the
victim P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant Manuel Garcia
is ACQUITTED. His immediate release from confinement is ORDERED unless he is detained for
some other valid cause.
SO ORDERED.
Narvasa C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

G.R. Nos. 114003-06. January 14, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO VIOLIN, REMEGIO YAZAR,
CESAR ALLEGO (at large) and EUTIQUIO CHERRIGUENE, accused.
ANTONIO VIOLIN, REMEGIO YAZAR and EUTIQUIO CHERRIGUENE, accused-appellants.

DECISION
BELLOSILLO, J.:

On 1 January 1986 Dioscoro Astorga Jr. was killed while his brother Darmo Astorga was
wounded in Bgy. San Jose in the island of Daram, Samar. Thereafter, two (2) informations[1] were
filed in the Regional Trial Court of Catbalogan, Samar, charging Antonio Violin, Eutiquio
Cherriguene, Cesar Allego, Remegio Yazar, Cata Doe and Peter Doe with murder for the killing
of Dioscoro Astorga Jr.,[2] and frustrated murder for the wounding of Darmo Astorga. [3] On 21
September 1989 Catalino Figueroa (Cata Doe) and Miguel Figueroa (Peter Doe) were separately
charged with murder[4] and frustrated murder[5] in connection with the same incident.[6]
Except for Cesar Allego, all the accused pleaded not guilty to the charges. Cesar Allego to
this date has remained at large.
The four (4) cases, docketed as Crim. Cases Nos. 3030, 3031, 3186 and 3187, were jointly
tried.
On 22 December 1993 two (2) decisions were rendered by the trial court in the four (4)
cases[7] finding Antonio Violin, Eutiquio Cherriguene and Remegio Yazar guilty of murder and
frustrated murder, and acquitting Catalino Figueroa and Miguel Figueroa for insufficiency of
evidence.
All three (3) accused convicted in Crim. Cases Nos. 3030 and 3031 are now before us on
appeal.
These cases demand a thorough examination and analysis, having been lengthily heard in
succession by five (5) judges of the Regional Trial Court.[8]
The evidence discloses that on 31 December 1985 Darmo Astorga was at the house of his
sister in Bgy. Muoz, Catbalogan, Samar, together with Dolores Bolos Astorga, Dioscoro Astorga
Jr. and Benito Astorga. Dioscoro Jr. was the Commander of the Police Station of Daram. At
around 6:00 o'clock in the evening, Cesar Allego, Punong Barangay of San Jose, Daram, arrived
seeking the help of Dioscoro Jr. in settling a dispute he had with a certain Mrs. Agas, also a
resident of Bgy. San Jose. Acceding to Allego's request on the condition that he be conducted
back to Catbalogan that same night, Dioscoro Jr. left for Bgy. San Jose with his brother Darmo
and Cesar Allego. But before leaving they stopped by the wharf and drank three (3) bottles of
beer each. While the Astorga brothers were drinking, Allego walked to a motorboat docked nearby
and conversed with Antonio Violin, Eutiquio Cherriguene and Remegio Yazar.
The Astorgas and Allegos left for Bgy. San Jose at around 9:00 o'clock that evening on board
the motorboat owned by Violin who together with Cherriguene and Yazar was among the
passengers of the boat. Upon reaching Bgy. Pait, Violin disembarked but agreed to meet Cesar
Allego later at a public dance in Bgy. San Jose. Dioscoro Jr., Darmo, Allego, Cherriguene and
Yazar proceeded to Bgy. San Jose and arrived there at around 11:30 o'clock in the evening.
Yazar and Cherriguene went with the group to the house of Allego but left immediately after the
latter promised to follow them to the public dance later that evening. Allego then summoned Mrs.
Agas to a meeting; unfortunately she had not yet returned from the sea where she had gone
fishing. Since there was nothing else to do, Dioscoro Jr. requested Allego to take him and his
brother back to Catbalogan but Allego refused purportedly due to lack of transportation. Left with
no recourse Dioscoro Jr. and Darmo were constrained to spend the night in Bgy. San Jose at the
house of Allego who left them to attend the public dance.
The following morning, at around four o'clock, 1 January 1986, Dioscoro Jr. and Darmo were
roused from their sleep by Allego who invited them to partake of some food and liquor. At that
time Violin, Cherriguene and Yazar were already drinking beer in the kitchen. After a few rounds
Allego asked Violin to buy more beer. Violin left followed by Cherriguene and Yazar.
Shortly after Dioscoro Jr. stood up to urinate but was told by Allego to relieve himself outside
the house because he would be using the comfort room himself. Dioscoro Jr. went out leaving
Darmo alone in the kitchen. All of a sudden Darmo heard several gunshots. Alarmed, he ran
towards the door but was met on the way by Dioscoro Jr. who was bleeding, staggering and about
to fall. Dioscoro Jr. told him to hide or he might also be shot by the three Violin, Cherriguene and
Yazar. Darmo then crawled and hid himself under a table measuring about three (3) feet wide,
seven (7) feet long and two (2) feet and four-and-a-half (4-1/2) inches tall. From this position he
saw violin standing at the kitchen door, firing at Dioscoro Jr. and shouting Tapos ka, ayos na an
singkwenta mil pesos (P50,000.00) nga bayad ni Cata (You are already through, the fifty thousand
pesos (P50,000.00) paid by Cata is already finished.)[9] A stray bullet fired from the firearm of
Violin grazed the right side of Darmo's head. At that instant, Yazar also fired at Dioscoro Jr. saying
Kapitan, waray na kamo kuntra hit election, waray na kuntra iton mga Figueroa.[10]Cherriguene
who positioned himself outside the kitchen window also fired at Dioscoro Jr. The three (3)
assailants then looked for Darmo but could not find him. Failing thus, they left towards the direction
of the coconut trees behind the house.
When Darmo came out of his hiding place and saw his brother dead he looked for the latter's
firearm but could not find it. He proceeded to the kitchen where he found a bolo. Then he went
out of the house searching for the three (3) malefactors. When he could not find them he went
back to the house and saw Allego sprawled inside the bathroom crying. Darmo asked Allego to
bring him to Catbalogan but the latter did not respond. Not long after, people milled around the
crime scene. One of them, a barangay councilor, assisted Darmo and took him back to
Catbalogan where the latter informed relatives about what happened to him and his brother, after
which he proceeded to the hospital for treatment.
Dr. Honorata L. Gabon autopsied the cadaver of Dioscoro Astorga Jr. and ascertained the
cause of death as cardiorespiratory failure secondary to severe hemorrhage resulting from his
multiple gunshot wounds.[11]
Darmo asserted that the murder of his brother was politically motivated. Their father was at
that time the mayor of Daram and the deceased Dioscoro Astorga Jr. was being groomed to take
his place. The ex-mayor of Daram, Miguel Figueroa, was planning a political comeback while
Violin, Cherriguene and Yazar, aside from being employees of the Figueroas, were his avid
followers. Cesar Allego was the nephew of vice-mayoralty candidate Emilio Allego who was
supposed to run under the ticket of Miguel Figueroa.
In support of this theory, the prosecution offered the testimonies of Mateo Villaganes and
Nestor Pahayahay to the effect that Miguel Figueroa and Catalino Figueroa had earlier
approached hit men for a contract on Dioscoro Jr.'s head.[12]
The defense tells a different story, invoking alibi for all the accused-appellants. Accused
Remegio Yazar, overseer of the coconut plantation and the cattle ranch of Catalino Figueroa,
claims that he could not have participated in the killing of Dioscoro Jr. on 1 January 1986 as he
was in Manila from 23 December 1985 to the first week of February 1986. Cherriguene, another
caretaker of the ranch, avowed innocence in the killing saying that he attended a birthday
celebration of his friend Francisco Decallos in the evening of 31 December 1985 and stayed there
up to five o'clock the following morning, 1 January 1986. Beatriz Donaire, the 80-year old aunt of
the Figueroas, and Antonio Coo, a guest at the birthday celebration, confirmed the narration of
Cherriguene.
The accused Antonio Violin testified that on 31 December 1985 he boarded a motorboat
together with Allego and the Astorga brothers en route to Bgy. San Jose. The boat was piloted by
Cesar Allego. However, Violin disembarked at Bgy. Pait where he resided and spent the whole
night of 31 December 1985 at his house drinking with some friends. He denied that he proceeded
to Bgy. San Jose that evening, claiming that he learned of the murder of Dioscoro Astorga Jr. only
at around 11:00 o'clock the following morning when Allego dropped by his house after
accompanying Darmo Astorga to a hospital in Catbalogan. He insisted that he was implicated in
the criminal cases because his father was a diehard follower of the Figueroas. He admitted
however that he owned the motorboat used by the Astorgas for Bgy. San Jose and that Allego
was his boat mechanic and pilot. Violin's testimony was corroborated by Diosdado Panis.
We have ruled, time and again, that alibi is the weakest of all defenses and cannot stand
against strong and positive identification. The testimonies of the accused herein and that of their
witnesses aside from being self-serving fall flat in the face of the clear and categorical account
given by Darmo Astorga. As correctly observed by the trial court -

x x x there is no doubt in our mind that positive identification of herein defendants by a survivor of
the attack has not been shaken. It is of no moment that the prosecution presented a lone witness.
If Darmo's uncorroborated testimony is credible and positive, it is sufficient to justify a
conviction.[13]

While accused-appellants feign bafflement that Darmo would crawl under the table instead
of seeking cover outside the house, there is nothing strange or unnatural about this behavior.
Darmo's act appears to be spontaneous and instinctive in that after the gunshots he ran towards
the door where he was met by his brother who was already bleeding and about to fall, and who
told him to hide otherwise he might also be shot. For him to go out of the house would have been
illogical and suicidal since the attackers of his brother were still outside. The only recourse
available at that very moment was to seek cover inside the house, and he found one under a
table.[14]
The defense speaks of the impossibility of Darmo crawling and hiding under a table
measuring only about three (3) feet wide, seven (7) feet long, and two feet and four inches high
(2'4") considering that he stands five feet and five inches (5'5") tall. A small table such as that
described by Darmo could not have provided ample protection for him, for squatting underneath
it would entail great difficulty. While the proposition may sound plausible we are not persuaded
that it was impossible. Truly, Darmo did not have the luxury of time and choice. He could not at
leisure studiously reflect upon the situation and scout around for a good and comfortable hiding
place. His very life was at stake. Safety was his immediate and only concern, not convenience.
Moreover, it does not follow that "since Darmo's head and shoulders would have touched the top
of the table, his vision would be severely inhibited by the breadth and width of the table." [15] To
conclude that because of his position "he could have only seen the lower parts of the attackers'
bodies," and consequently, could not have seen the faces and identified the attackers[16] is
specious and delusive because it erroneously assumes the validity of a false premise.
Darmo identified with ease the weapons used by the three appellants considering that at the
time of the incident he was a member of the Civilian Home Defense Force (CHDF) and therefore
knowledgeable if not trained in the identification and use of firearms. He was able to recall what
each of the assailants said during the incident because they attacked Dioscoro Jr. alternately so
that Darmo's attention was focused on each perpetrator's act and utterance. As eyewitness to the
killing of his brother Dioscoro Jr., Darmo narrated the harrowing occurrence in vivid detail. Surely,
this could not have been the fictive product of a highly imaginative mind.
Appellants also postulate that Darmo was drunk and therefore incapable of accurate
perception. They anchor their hypothesis on the fact: that the night before the killing Darmo drank
three (3) bottles of beer before he and Dioscoro Jr. left for Bgy. San Jose and, right before the
shooting of 1 January 1986, Darmo drank beer again. This is pure conjecture for no evidence was
shown that Darmo was intoxicated to such degree as to deprive him of his perceptive faculties.
On the contrary, his detailed account of the killing shows that he was fully aware of what transpired
around him.
 Additionally, the defense attempts to destroy the credibility of Darmo by harping on his
alleged confusion in certain aspects of his testimonies, e.g., the number of doors of Allego's
house, whether it was Dioscoro Jr. who walked ahead of Allego in going to the kitchen to eat
breakfast, and whether Violin, Yazar and Cherriguene were standing or sitting in the kitchen at
that time. We find these matters to be minor and inconsequential as to change substantially the
findings in the case at bar.
The lower court found the killing to be qualified by treachery and aggravated by craft and
abuse of superior strength.[17] We disagree. For craft cannot be considered aggravating herein
since the use of intellectual trickery or cunning on the part of the accused[18] was not established.
There is no showing that the accused employed stealth and covert machinations to camouflage
their evil intentions.
We sustain however the finding that the attack was attended with treachery. The victim was
not afforded the opportunity to defend himself while the assailants themselves ensured that the
crime would be consummated with the least risk to their persons. The three (3) conspirators
pounced upon their victim as soon as he stepped out of the house. The latter had no inkling at all
that he would be assaulted by them considering that they were all guests of Cesar Allego. This is
indicative of treachery which qualifies the crime to murder. On this score the trial court should not
have factored in abuse of superior strength as an independent aggravating circumstance. When
treachery qualifies the crime of murder, the generic aggravating circumstance of abuse of superior
strength is necessarily included in the former. This we ruled as early as 1914.[19]
The court in the frustrated murder charge found

The defendant Antonio Violin in firing his armalite rifle at Dioscoro Astorga Jr. also hit his younger
brother Darmo on his head particularly on the right parietal region which injury would have caused
his death had it not been for the timely medical assistance rendered him. The crime committed is
frustrated murder because there was treachery and the defendants who conspired to kill the
Figueroa[20] brothers performed all the acts of execution but did not produce the result, the death
of Darmo Astorga, due to a cause entirely independent of their will.[21]

Again we cannot agree. The crime of slight physical injuries[22], not frustrated murder, was
committed against Darmo Astorga. Antonio Violin fired at Dioscoro Astorga Jr. and not at Darmo.
There is not the slightest indication that at that time Violin knew that Darmo was hiding under a
table. Darmo himself admitted that he was injured by a stray bullet[23] which grazed the right
parietal region of his head. The wound was diagnosed as superficial [24] and required treatment
only for three (3) days.[25]
WHEREFORE, the decision of the court a quo dated 24 November 1993 in Crim. Case No.
3030 finding ANTONIO VIOLIN, EUTIQUIO CHERRIGUENE and REMEGIO YAZAR guilty of
murder qualified by treachery and aggravated by craft and abuse of superior strength
is MODIFIED. The crime committed by the accused was murder qualified by treachery. They are
therefore sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of
Dioscoro Astorga Jr. the sum of P50,000.00, and to pay the costs. The decision in Crim. Case
No. 3031 for frustrated murder is likewise MODIFIED. Accused ANTONIO VIOLIN is found guilty
only of the crime of slight physical injuries and is accordingly sentenced to suffer a straight prison
term of ten (10) days of arresto menor, and to pay the costs.
SO ORDERED.
Padilla, (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.
G.R. No. 112092 March 1, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROBERT NUEZ y LAGASCA, accused-appellant.

QUISUMBING, J.:

On appeal is the decision1 dated May 26, 1993, of the Regional Trial Court of Urdaneta,
Pangasinan, Branch 48, convicting appellant of the crime of qualified illegal possession of
firearms, sentencing him to life imprisonment, and ordering him to pay the costs.

The facts are as follows:

On March 6, 1992, at around 2:00 to 3:00 P.M., in Palina Sur, Urdaneta, Pangasinan, four (4)
persons, namely Teofilo Pacquing, Calixto Pacorza,2 Marlito Parias and Roy Tolentino were
riding a tricycle driven by Jerry Almendrez.3 When they passed by the gate of appellant's family
compound, appellant fired at them from a distance of about twenty (20) meters, hitting Pacquing
on the right toe, Almendrez on the left breast, and Pacorza resulting to his death. The records do
not indicate the injuries sustained by Pacorza, but merely state that he died as a result of the
shooting incident.4

The victims were brought to the Urdaneta Sacred Heart Hospital for treatment. Teofilo
Pacquing5 reported the incident to the police. SPO1 Ernesto C. Gancea, a member of the
Investigation and Intelligence Operations of the Philippine National Police (PNP) investigated the
incident. Teofilo Pacquing informed him that it was appellant who fired at them. Thereafter, SPO1
Gancea, accompanied by PO3 Asterio Dismaya, and SPO1 Henry R. Kang proceeded to the
scene of the incident. When they arrived at appellant's house, SPO1 Gancea talked to appellant
who readily admitted that he was the one who shot Pacorza. SPO1 Kang recovered a caliber .22,
long rifle, "Squibman," model 116 MK with serial no. A-320554 with telescope from appellant.
When asked for the permit for the firearm, appellant could not produce any. Appellant was
thereafter brought to the Urdaneta Police Station for investigation. He refused to give any
statement to the police. The incident was entered in the police blotter by desk officer Romulo
Dutong.6

For the shooting of Almendrez and Pacquing and the death of Pacorza, appellant was charged
under four (4) separate Informations for (1) homicide, (2) frustrated homicide, (3) frustrated
homicide and (4) illegal possession of firearms docketed as Criminal Case No. U-6449. The cases
were raffled to the different branches. Only the Illegal Possession of Firearms case is before us.

The Information for Illegal Possession of Firearms reads:7

That on or about the 6th day of March, 1992, at barangay Palina Sur, municipality of
Urdaneta, province of Pangasinan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully, unlawfully and
feloniously have in his possession, control and custody one (1) Caliber .22 Rifle 116MK,
bearing Serial No. A320554, with trademark "Kassnar Squibman" and with magazine and
nine (9) live ammunition, without first securing the necessary permit or license from lawful
authorities, which said firearm was used by the accused in the commission of the crime of
 homicide and double frustrated homicide against the persons of Calixto Pacursa (sic),
Jerry Armendez (sic) and Teofilo Pacquing.

CONTRARY to Presidential Decree No. 1866.

Urdaneta, Pangasinan, June 16, 1992.

On September 10, 1992, upon arraignment, appellant, duly assisted by counsel de parte, pleaded
not guilty.8 Pre-trial conference was waived. Trial then commenced.

The prosecution presented the four (4) members of the PNP, Urdaneta, Pangasinan, who were
involved in the investigation, and one of the victims, Teofilo Pacquing.

SPO1 Ernesto C. Gancea testified that he conducted the investigation and that appellant
admitted to him that he shot the victim, Pacorza.9 PO2 Asterio Dismaya, corroborated the
testimony of SPO1 Gancea.10 SPO1 Henry R. Kang, testified that he was the one who recovered
the firearm from appellant.11 SPO1 Nestor G. Manongsong, responding to a subpoena duces
tecum, testified that he could not bring the police blotter, but presented the complaint/assignment
sheet,12 and the spot report13 pertaining to the incident.14 Teofilo Pacquing testified on the
circumstances surrounding the attack, and identified appellant as the assailant.15

On the other hand, the defense presented five (5) witnesses, namely: (1) appellant, (2) Salvador
Paz, a carpenter working in the house of Alvaro Nuez; (3) Eugene Nuez, a neighbor of the aunt
of appellant who allegedly witnessed the shooting incident; (4) Cesar Nuez Celeste, a cousin of
appellant and the owner of the subject firearm and (5) SPO4 Benito Opguar, of the Provincial
Headquarters, PNP Command, Lingayen, Pangasinan, who testified that Cesar Celeste had a
temporary license to possess the subject firearm, but at the time of the shooting incident, the
temporary license had already lapsed.16

The defense claims that the shooting incident did not happen on the road, but inside the living
room of the house of appellant's aunt, Magdalena Celeste. Appellant claims that he shot at the
victims in self-defense. He narrates his version of the incident as follows:17

That on March 6, 1992, the accused-appellant was busy sticking tobacco leaves when six
(6) armed men namely: Calixto Pacursa, Gerry Almendrez, Teofilo Tolentino, Teofilo
Pacquing, Nick Gascon and Carlito Parnas, arrived in their compound and went inside
their compound and stoned the houses of his grandmother, Maxima Nuez, his uncle
Mariano Nuez and his aunt Magdalena Celeste. When the six (6) men noticed him, they
shouted at him so the accused-appellant ran towards the north and since they ran after
him, the accused-appellant hid behind the santol tree, then the six men left the place
boarding on the same tricycle and proceeded towards the west. In the afternoon between
3:00 and 4:00 o'clock of the same date, while he is unloading tobacco leaves, Gerry
Almendrez and his companions came back and they shouted at him and he heard one
gunshot so he ran inside the compound where his grandfather's house were being
constructed and that was then the time that Cesar Celeste and Juanito Nuez went to
town to report the said incident.

Calixto Pacursa armed with a .38 caliber met the accused-appellant so he ran towards the
house of his aunt Magdalena Celeste and hide (sic) inside the bathroom since Calixto
Pacursa continued chasing him. When Calixto Pacursa was about to go the second floor,
 he saw the .22 caliber that was placed on top of the bed of Cesar Celeste and he got the
said firearm and when he went out he was still holding the .38 caliber and at the same
time holding the .22 caliber firearm. When the accused-appellant saw Calixto Pacurza
tucked his .38 caliber firearm in his waist and loaded the .22 caliber rifle that was the time
accused-appellant went out from the bathroom and grappled with Calixto Pacurza and the
accused-appellant was able to retrieve the subject firearm from Calixto Pacurza. The
accused-appellant move two steps backward but Calixto Pacurza drew his .38 caliber
firearm from his waist and that was the time that accused-appellant fired the .22 caliber
rifle at Calixto Pacurza. The accused-appellant and Gerry Almendrez had a
misunderstanding because the former noticed that some parts of the motorcycle driven by
the latter had been replaced.

The testimony of herein accused-appellant were corroborated by Salvador Paz, a laborer

in the on-going construction of the house of Alvaro Nuez, and Eugene Nuez, who at
that time were inside the kitchen of Magdalena Celeste, the former was pouring hot water
in a thermos while the latter went inside the kitchen to light his cigarette.

Cesar Celeste declared that he is the owner of the subject firearm and he brought outside
the said firearm when Teofilo Pacquing and his companions arrived and stoned the
houses in their compound. And before he and Juanito Nuez went to town to report to the
police authorities, he left the licensed firearm on top of his bed. He applied a license to
possess the firearm through First Continental Co., Inc., and had paid the firearm bond.

After presentation of prosecution evidence in the illegal possession case, appellant filed a motion
for consolidation of the four cases. Upon the opposition of the public prosecutor, the trial court
denied the motion.18 Subsequently, on May 26, 1993, the trial court rendered a
decision19 convicting appellant, the dispositive portion of which provides:

WHEREFORE, this court finds the accused guilty of Illegal possession of firearm resulting
to the death of the victim and pursuant to P.D. 1866 in relation to the 1987 Constitution
the court sentences the said accused Robert Nuez to suffer the penalty of life
imprisonment and with costs.

SO ORDERED.20

Appellant now assigns the following errors:21

I. THE LOWER COURT GRAVELY ERRED IN FINDING HEREIN ACCUSED-

APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL
POSSESSION OF FIREARM DESPITE THE FACT THAT THE SAME WAS NOT
RECOVERED FROM HIS POSSESSION AS TESTIFIED TO ON REBUTTAL BY
PROSECUTION WITNESS PO3 HENRY KANG.

II. THE LOWER COURT GRAVELY ERRED IN GIVING GREAT WEIGHT TO THE
INCONSISTENT AND UNCORROBORATED TESTIMONIES OF THE PROSECUTION
WITNESSES AND IN NOT GIVING CREDENCE TO THE CORROBORATED AND
CREDIBLE TESTIMONIES OF THE DEFENSE WITNESSES.

III. THE LOWER COURT GRAVELY ERRED IN SHIFTING THE BURDEN OF PROOF
TO THE ACCUSED APPELLANT.
 IV. THE LOWER COURT GRAVELY ERRED IN ADMITTING IN EVIDENCE THE
ALLEGED EXTRAJUDICIAL CONFESSION OF THE ACCUSED-APPELLANT
WITHOUT THE ASSISTANCE OF A COUNSEL AND IN ADMITTING THE FIREARM IN
ISSUE WHICH WAS SEARCHED AND SEIZED WITHOUT A VALID WARRANT.

In support of his first and second assignment of errors, appellant points out major inconsistencies
in the testimonies of the prosecution witnesses. SPO1 Gancea testified that appellant was inside
his house when the police arrived at the crime scene and the rifle was located "beside" appellant,
and it was SPO1 Kang who got the rifle from appellant. SPO3 Dismaya, however, testified that
appellant was actually in the yard when they arrived and that appellant was the one who got the
rifle from the house and handed it to SPO2 Kang. SPO2 Kang testified during direct examination
that it was appellant who gave him the gun, but during rebuttal, he said that it was one of
appellant's cousins who handed to him the gun.

In support of his third assignment of error, appellant claims that it was error for the trial court to
shift the burden of proof to the defense when he invoked self-defense.

In support of his fourth assignment of error, appellant contends that his alleged "extrajudicial
confession" to SPO1 Gancea is inadmissible since he was not assisted by counsel at the time it
was made. Further, the rifle was seized without a search warrant and therefore, inadmissible in
evidence.

The Office of the Solicitor General, on the other hand, points out that it is of no moment who
among the responding policemen received the fatal weapon. What is important is that he admitted
possession of the firearm at the time the victim was shot. His conviction was based not on his
alleged "extrajudicial confession," but on his admissions in open court. The rifle was not seized
from appellant, but was surrendered by him to the policemen.

Simply put, the issues pertain to (1) the assessment of credibility of witnesses, and (2) the
sufficiency of the evidence to convict appellant of the crime charged.

It is well-settled that, generally, appellate courts will not interfere with the judgment of trial courts
in passing upon the credibility of the witnesses unless there appears in the record some facts or
circumstances of weight and significance which the trial court has overlooked or the significance
of which it has misapprehended or misinterpreted.22 After a careful examination of the records of
the case, we are inclined to give credence to the version of the prosecution. The alleged
inconsistencies as to who recovered the firearm from appellant, in our view, do not pertain to a
material matter. What is important is that one of the police officers recovered the firearm from
appellant, who does not deny his possession of said firearm. Further, the presumption of regularity
in the performance of official functions, insofar as the policemen are concerned, has not been
overturned. Credence should be given to the narration of an incident by prosecution witnesses
who are police officers and presumed to have performed their duties in a regular manner, in the
absence of evidence to the contrary.23

Anent the second issue, we have held that in crimes involving illegal possession of firearm, the
prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject
firearm and (b) the fact that the accused who owned or possessed it does not have the license or
permit to possess the same.24 The prosecution was able to prove both elements. First,
prosecution witness Pacquing categorically stated that he saw appellant fire at them with a long
gun from a distance of 20 meters.25 Appellant would make us believe that his possession of the
firearm was "transient" possession. He claims that he merely acquired it during the scuffle with
the victim. Having given credence to the version presented by the prosecution, this argument
deserves scant consideration. Second, the defense presented SPO4 Opguar, who testified that
a temporary license of the rifle was issued in the name of Cesar Celeste, the owner thereof, but
said license already lapsed. Clearly, appellant had no license to possess the rifle.

Appellant was convicted of "illegal possession of firearms resulting to the death of the victim." At
the time of the commission of the crime, the existing jurisprudence was People v. Quijada.26 This
Court held then that the use of an unlicensed firearm in a killing results in two separate crimes
one for the aggravated form of illegal possession of firearm and two, for homicide or murder. In
the meantime, however, Congress passed Republic Act No. 8294,27 which lowered the penalties
for illegal possession of firearms. Further, Section 1, third par. of R.A. No. 8294 provides

If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.

Thus in People v. Molina, 292 SCRA 742 (1998), this Court held that the use of an unlicensed
weapon in the commission of homicide or murder should now be considered simply as an
aggravating circumstance and no longer a separate offense. The Molina ruling,28 however, is not
applicable to the present case. In Molina, separate Informations for murder, frustrated murder and
illegal possessions were filed, but the cases were eventually consolidated and jointly tried and
decided. In the present case, there were four cases filed against appellant which were all
separately tried.29 Hence, the evidence as to the homicide and frustrated homicide cases were
neither adopted nor presented before the trial court trying the illegal possession case. For this
reason, there is a dearth of evidence on record to support the finding of homicide and/or frustrated
homicide.

Accordingly, appellant should only be convicted of simple illegal possession of firearms. The
lowered penalties as provided in R.A. No. 8294, being favorable to the accused, should be applied
retroactively.30 Under R.A. No. 8294, the penalty for simple illegal possession of a low-powered
firearm is prision correccional in its maximum period, which is four (4) years, two (2) months and
one (1) day to six (6) years, and a fine of not less than P15,000.00. It will not be amiss to point
out that R.A. No. 8294 contains the proviso: "Provided, That no other crime was committed."
However, as explained earlier, the facts obtaining in this case do not indubitably prove the
frustrated murder cases or the murder case in relation to the illegal possession case. Hence, we
find it proper to convict appellant only of the crime of simple illegal possession of firearms.
Applying the Indeterminate Sentence Law, appellant should be sentenced to two (2) years, four
(4) months, and one (1) day of prision correccionalmedium as minimum, to five (5) years, four (4)
months, and twenty (20) days of prision correccional maximum as maximum, and ordered to pay
a fine of P15,000.00.31

WHEREFORE, the decision of the Regional Trial Court of Urdaneta, Pangasinan, Branch 48, in
Criminal Case No. U-6449, is hereby AFFIRMED WITH MODIFICATIONS. Appellant is hereby
convicted of the crime of illegal possession of firearms and sentenced to two (2) years, four (4)
months, and one (1) day of prision correccionalmedium as minimum, to five (5) years, four (4)
months, and twenty (20) days of prision correccional maximum as maximum, and ordered to pay
a fine of P15,000.00 and the costs.

SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ ., concur.

[G.R. Nos. 136149-51. September 19, 2000]

PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL alias

WARPAN, appellant.

DECISION
PANGANIBAN, J.:

Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the
person arrested committed no other crime. Furthermore, if the person is held liable for murder or
homicide, illegal possession of firearms is an aggravating circumstance, but not a separate
offense. Hence, where an accused was convicted of direct assault with multiple attempted
homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a search
warrant, he cannot be held guilty of the separate offense of illegal possession of firearms. Neither
can such unlawful act be considered to have aggravated the direct assault.

The Case

Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September 17,
1998 Decision[1] of the Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found
him guilty of three out of the four charges lodged against him.
Filed against appellant were four Informations,[2] all signed by Assistant Regional State
Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Information[3] was for
maintaining a den for the use of regulated drugs. It reads as follows:

That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Walpan Ladjaalam being then the
owner of a residential house located at Rio Hondo,[4] this City, conspiring and confederating
together, mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad
Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house
as a den, where regulated drug [was] used in any form.[5]

The second Information[6] charged appellant with illegal possession of firearms and
ammunition. We quote it below:

That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together, mutually aiding and assisting with one another, without any justifiable reason or purpose
other than to use it in the commission of crime, did then and there, wilfully, unlawfully, and
feloniously have in their possession and under their custody and control, the following weapons,
to wit: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live ammunition;
two (2) magazines with twenty (20) and twenty[-one] (21) rounds of live [ammunition]; one (1)
homemade caliber .38 revolver with five (5) live ammunition; one (1) M-79 (single) rifle with pouch
and with five (5) empty shell[s]; one (1) home made caliber .38 with SN-311092 with five live
ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik
revolver with Serial Number 311092 and one defaced M79 grenade launcher paltik, without first
having obtained the necessary license and or permit therefor from authorities concerned, in
flagrant violation of the aforementioned law.[7]

The third Information,[8] for multiple attempted murder with direct assault, was worded thus:

That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused being then armed with M-14
Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, conspiring and
confederating together, mutually aiding and assisting x x x one another and with intent to kill, did
then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES,
JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J.
LACASTESANTOS, in the following manner, to wit: by then and there firing their M-14 x x x
Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, aimed and
directed at the fatal parts of the bodies of the above-named police officers, well known to the
accused as members of the Philippine National Police, Zamboanga City Police Office, and as
such, agents of a person in authority, who at the time of the attack were engaged in the
performance of their duties, that is, on the occasion when said officers were about to serve the
Search Warrant legally issued by the Regional Trial Court, this City, to the person of the accused
thus commencing the commission of crime of multiple murder directly by overt acts, and if the
accused did not accomplish their unlawful purpose, that is, to kill the above-named Police Officers,
it was not by reason of their own voluntary desistance but rather because of the fact that all the
above-named police officers were able to seek cover during the firing and were not hit by the
bullets and explosives fired by the accused and also by the fact said police officers were able to
wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. Warpan and Ahmad
Sailabbi y Hajairani, who were subdued and subsequently placed under arrest; whereas accused
PO2 Nurhakim T. Hadjula was able to make good his escape and has remained at-large.[9]

In the fourth Information, appellant was charged with illegal possession of drugs.[10]
On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini
were dismissed upon motion of the Office of the City Prosecutor, which had conducted a
reinvestigation of the cases as ordered by the lower court. The accused were consequently
released from jail.
The arraignment of appellant on all four (4) charges took place on January 6, 1998, during
which he entered a plea of not guilty.[11] After pretrial, the assailed Decision was rendered, the
dispositive part of which reads:

WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. WARPAN -

1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section
15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972,
as amended, and SENTENCES said accused to the penalty of RECLUSION PERPETUA and to
pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) and to pay the costs;
2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to
Section 21, Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of
1972, as amended, and ACQUITS him of said crime with costs de oficio;

3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Illegal
Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866, as
amended by Republic Act. No. 8294, and SENTENCES said accused to suffer an indeterminate
penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8) YEARS of prision
mayor as maximum and to pay a fine [of] THIRTY THOUSAND (P30,000.00) and pay the costs;

4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Direct
Assault with Multiple Attempted Homicide and SENTENCES said accused to an indeterminate
penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX
(6) YEARSof prision correccional as maximum and to pay a fine of ONE THOUSAND
(P1,000.00) and to pay the costs. (emphasis in the original)

Hence, this appeal.[12]

The Facts

Prosecutions Version

In its Brief,[13] the Office of the Solicitor General presents the facts in this wise:

At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance
of a search warrant against appellant, his wife and some John Does (Exh. C). After the search
warrant was issued about 2:30 p.m. of the same day, a briefing was conducted inside the office
of the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office in connection with the service
of the search warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the Anti-
Vice/Narcotics Unit. During the briefing, PO3 Renato Dela Pea was assigned as presentor of the
warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were designated to conduct the
search. Other policemen were assigned as perimeter guards (TSN, March 3, 1998, pp. 33-36).

After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin
Soledad proceeded to the house of appellant and his wife at Rio Hondo on board several police
vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reach appellants
house, three (3) persons sitting at a nearby store ran towards the house shouting, [P]olice, raid,
raid (Ibid., March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about
ten (10) meters from the main gate of the house, they were met by a rapid burst of gunfire coming
from the second floor of the house. There was also gunfire at the back of the house (Ibid., March
5, 1998, pp. 14-16).

SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Pea who were with the first
group of policemen saw appellant fire an M14 rifle towards them.They all knew appellant. When
they were fired upon, the group, together with SPO2 Gaganting, PO3 Obut and Superintendent
Soledad, sought cover at the concrete fence to observe the movements at the second floor of the
house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51).
In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46,
57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut entered the door of the
extension building. Gaganting opened the main (steel) gate of the house. The other members of
the team then entered. Lacastesantos and Mirasol entered the house through the main door and
went inside the sala of the ground floor while other policemen surrounded the house. Two (2) old
women were in the sala together with a young girl and three (3) children. One of the old women
took the children to the second floor while the young girl remained seated at the corner (Ibid., pp.
19-21).

Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing
an M14 rifle at them through the window. While they were going upstairs, appellant noticed their
presence. He went inside the bedroom and, after breaking and removing the jalousies, jumped
from the window to the roof of a neighboring house. Seeing this, Mirasol rushed downstairs and
asked help from the other members of the raiding team to arrest appellant. Lacastesantos went
to the second floor and shouted to the policemen outside not to fire in the direction of the second
floor because there were children. Mirasol and SPO1 Cesar Rabuya arrested appellant at the
back of his house after a brief chase (Ibid., pp. 21-23).

At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa
at the sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the
magazine from the rifle and the bullet inside the chamber of the rifle. He counted seventeen (17)
live ammunition inside the magazine.He saw two (2) more M14 rifle magazines on the sofa, one
with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition
(Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner at the second
floor (TSN, March 5, 1998, pp. 23-32, 53-57).

After Lacastesantos and Mirasol entered appellants house, Rivera, Dela Pea, Gregorio and Obut
followed and entered the house. After identifying themselves as members of the PNP Anti-
Vice/Narcotics Unit, Obut presented to the old women a copy of the search warrant. Dela Pea
and Rivera then searched appellants room on the ground floor in the presence of Punong
Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J)
with fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing methamphetamine
hydrochloride or shabu.

Other items were found during the search, namely, assorted coins in different denominations
(Exh. W; TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with
five (5) live [ammunition], one (1) M79 single rifle with [a] pouch containing five (5) empty shells
of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-
32).

Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga
Police. [O]n the morning of September 24, 1997, he was instructed by SPO2 Gaganting to go to
appellants house to buy shabu. Locson knew appellant as a seller of shabu (TSN, April 22, 1998,
p. 5) and had been to appellants house about fifteen (15) times before. He went to Rio Hondo
and arrived at appellants house at 3:20 p.m. He bought P300.00 worth of shabu from
appellant. The latter got three (3) decks of shabu from his waist bag. Appellant instructed Locson
to go behind the curtain where there was a table. There were six (6) persons already
smoking. There was a lighted kerosene lamp made of a medicine bottle placed on the table. They
asked Locson to smoke shabu and Locson obliged. He placed the three (3) decks of shabu he
bought on the table (Ibid., pp. 8-15).
While they were smoking shabu, Locson heard gunfire coming from appellants house. They all
stood and entered appellants compound but were instructed to pass [through] the other side. They
met appellant at the back of his house. Appellant told them to escape because the police are
already here. They scampered and ran away because there were already shots. Locson jumped
over the fence and ran towards the seashore. Upon reaching a place near the Fisheries School,
he took a tricycle and went home (Ibid., pp. 17-19).

The following day, September 25, 1997, he went to the police station and executed an affidavit
(Exh. M) narrating what transpired at appellants house [o]n the afternoon of September 24, 1997.

After the search and before returning to the police station, P03 Dela Pea prepared a Receipt for
Property Seized (Exh. P & 3) listing the properties seized during the search. The receipt was
signed by Dela Pea as the seizure officer, and by Punong Barangay Hadji Hussin Elhano and
radio reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he
refused to acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12).

An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP
Crime Laboratory Service Office 9, on the paraffin casts taken from both hands of appellant
yielded positive for gunpowder nitrates (Exh. A-3), giving rise to the possibility that appellant had
fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations
conducted on September 26, 1997 showed that the following firearms were fired (Exh. B-5): a .38
caliber revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber revolver
(homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No.
1555225 (Exh. B-3), and an M79 rifle without a serial number (Exh. B-4). They were fired within
five (5) days prior to the examination (TSN, March 3, 1998, pp. 16-21).

With respect to the crystalline substances, an examination conducted by Police Inspector Susan
M. Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the
fifty (50) pieces of folded aluminum foils each containing white crystalline granules with a total
weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of
methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1)
crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results for the presence of
methamphetamine hydrochloride (Exh. L).

The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive
Section show that appellant had not applied/filed any application for license to possess firearm
and ammunition or x x x been given authority to carry [a] firearm outside of his residence (Exh.
X)[14]

Defenses Version

Appellant Ladjaalam agrees with the narration of facts given by the lower court.[15] Hence, we
quote the pertinent parts of the assailed Decision:

Accused Walpan Ladjaalam y Mihajil a.k.a. Warpan, 30 years old, married, gave his occupation
as smuggling (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia and bring cigarettes
to the Philippines without paying taxes (tsn, pp. 40-41, id). He said that his true name [was] Abdul
Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his alias. However, he
admitted that more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser
Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n the afternoon of September 24,
1997, when he was arrested by the police, he was sleeping in the house of Dandao, a relative of
his wife. He was alone. He slept in Dandaos house and not in his house because they ha[d] a
sort of a conference as Dandaos daughter was leaving for Saudi Arabia. He noticed the presence
of policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up and
went out of the house and that was the time that he was arrested. He said he was arrested xxx
[at] the other side of my house; at the other side of the fence where I was sleeping. xxx.At the
back of my house (tsn, p. 7, id.). He does not know who arrested him considering that the one
who arrested me does not have nameplate. He was arrested by four (4) persons. Not one of those
who arrested him testified in Court. He was handcuffed and placed inside a jeep parked at Rio
Hondo Elementary School. According to him, he did not fire a gun at the policemen from [t]he
second floor of his house. He said the policemen [were] the one[s] who fire[d] at us(tsn, p. 5,
id.). If he fired a gun at the policemen for sure they [would] die [b]ecause the door is very near x
x x the vicinity of my house. He does not own the M14 rifle (Exh. B-3) which according to
policemen, he used in firing at them. The gun does not belong to him. He does not have a gun
like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but he does not know the policeman
(tsn, pp. 16-17, id). He said that the M79 rifle (Exh. B-4), the three (3) empty M16 rifle magazines
(Exh. G; G-1 to G-2), the two (2) M14 magazines with live ammunition (Exh. G-3; G-4); the two
(2) caliber .38 revolvers (Exhs. B-1; B-2), the fifty (50) aluminum foils each containing shabu
(Exhs. J-1 to J-50) placed inside a pencil case (Exh. J, the assorted coins placed inside a blue
bag (Exh. W) and the white crystalline stone (Exh. K) all do not belong to him. He said that the
policemen just produced those things as their evidence. The firearms do not belong to him. They
were brought by the policemen (tsn, p. 43, May 4, 1998). Regarding the blue bag containing
assorted coins, he said: that is not ours, I think this (is) theirs, xxx they just brought that as their
evidence (tsn, pp. 15-24, id.)

Walpan Ladjaalam declared there were occupants who were renting his extension house. He
affirmed that he owns that house. Four (4) persons were staying in the extension house. He could
only recognize the husband whose name is Momoy. They are from Jolo. They left the place
already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4,
1998). He does not know prosecution witness Rino Locson y Bartolome. Although Locson
recognized him, in his case he does not know Locson and he does not recognize him (tsn, p.11,
id). He did not sell anything to Locson and did not entertain him. He is not selling shabu but he
knows for a fact that there are plenty of person who are engaged in selling shabu in that place, in
that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id).

After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day
and one night before he was transferred to the City jail. While at the police station, he was not
able to take a bath. He smokes two packs of cigarette a day. While he was at the police station,
he smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with [a] match.
From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where
he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998).

During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar
(Sikkal) Usman, the younger brother of his wife were killed. Walpan Ladjaalam said that he saw
that it was the policeman who shot them[,] only I do not know his name. They were killed at the
back of his house. He said that no charges were filed against the one responsible for their death
(tsn, pp. 30-33- May 4, 1998).
Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam
whom he calls Hadji Id at the time the police raided the house. She is the mother of Ahma
Sailabbi. She was together with Babo Dandan, two small children and a helper
when soldiers entered the house. (W)hen they arrived, they kept on firing (their guns) even inside
the house (tsn, p.5, May 5, 1998). They were armed with short and long firearms. They searched
the house and scattered things and got what they wanted. They entered the room of Walpan
Ladjaalam. They tried to open a bag containing jewelry. When Anilhawa tried to bring the bag
outside the room, they grabbed the bag from her and poked a gun at her. At that time Walpan
Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house. A Search Warrant
was shown to Anilhawa after the search was conducted and just before the policemen left the
place. Anilhawa Ahamad said that it was already late in the afternoon[;] before they left that was
the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano (tsn, pp.6-
8, May 5, 1998). Barangay Chairman Elhano arrived already late in the afternoon, almost
sundown (tsn, p. 9, id). Anilhaw declared that aside from a bag containing jewelry and a bag full
of money, she had not seen anything else that was taken from Walpan Ladjaalams house (tsn,
pp. 9-12, id).

Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 oclock [o]n the afternoon
of September 24, 1997, ha was standing in front of his house when policemen arrived and
immediately arrested him. He was about to go to the City Proper to buy articles he was intending
to bring to Sabah. He had around P50,000.00 placed inside a waist bag tied around his waist. The
policemen told him to lie down in prone position and a policeman searched his back. They pulled
his waist bag and took his DiaStar wrist watch. He was shot three times and was hit on the
forehead leaving a scar. His injury was not treated. He was taken to the police station where he
was detained for one day and one night. He was detained at the City Jail for three months and
five days after which he was released (tsn, pp. 25-29, May 5, 1998).

Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she
was in the house of her parents lying together with her husband Sikkal Usma. There is only one
house between her parents house and the house of Walpan Ladjaalam. Her husband Sikkal
Usman is the brother of Nur-in Ladjaalam, Walpans wife. When Melba heard shots, she went
downstairs. A policeman was looking for her husband. The policeman called her husband. When
her husband went down, he was instructed by the policeman to lie down in prone position. Then
the policeman shot her husband. The policeman had two other companions who also shot her
husband while he was lying down in prone position (tsn, pp.2-7, May 5, 1998).

Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997,
she was sitting at the door of her house watching her children playing when a motorcyle, driven
by a person, stopped near her house. The driver was Gaganting whom she called a soldier. He
went down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised
her hands. She got her children and when she was about to enter the room of her house,
Gaganting again poked a gun at her and there was a shot. As a result of firing, three persons
died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998).

Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o clock [o]n the
afternoon of September 24, 1997, he was fetched by two policemen at Catabangan where he was
attending a seminar. Because of traffic along the way, they arrived at the Rio Hondo already late
in the afternoon. He saw policemen were already inside the house. Upon entering the gate, he
saw Walpan at the gate already handcuffed. Walpan called him but the police advised him not to
approach Walpan. The search was already over and things were already taken inside the house.
When he went inside the house, he saw the things that they (policemen) searched, the firearms
and the shabu (tsn, p. 17. May 8, 1998). He did not see the Search Warrant. What was shown to
him were the things recovered during the search which were being listed. They were being
counted and placed on a table. Upon seeing the things that were recovered during the search, I
just signed the receipt (Exh. P; P-1) of the things x x x taken during the search (tsn, pp. 17-18. May
8, 1998). He saw three dead bodies at the side of the fence when he went to the other side of the
house. The three persons were killed outside the fence of Walpan Ladjaalam (tsn, p. 18, id).[16]

The Trial Courts Ruling

The trial court observed that the house of appellant was raided on September 24, 1997 by
virtue of Search Warrant No. 20 issued on the same day. However, the lower court nullified the
said Warrant because it had been issued for more than one specific offense, [17] in violation of
Section 3, Rule 126 of the Rules of Court.[18] The court a quo ruled:

It should be stated at the outset that Search Warrant No. 20 is totally null and void because it was
issued for more than one specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of
Court which provides that A search warrant shall not issue but upon probable cause in connection
with one specific offense xxx. In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court
ruled that a search warrant for more than one offense - a scatter shot warrant - violates Section
3, Rule 126 of the [R]evised Rules of Court and is totally null and void.[19] (emphasis in the original)

Nevertheless, the trial court deemed appellants arrest as valid. It emphasized that he had
shot at the officers who were trying to serve the void search warrant. This fact was established
by the testimonies of several police officers,[20] who were participants in the raid, and confirmed
by the laboratory report on the paraffin tests conducted on the firearms and
appellant.[21] Additionally, the judge noted that Appellant Ladjaalam, based on his statements in
his Counter Affidavit, impliedly contradicted his assertions in open court that there had been no
exchange of gunfire during the raid.[22] The trial court concluded that the testimonies of these
officers must prevail over appellants narration that he was not in his house when the raid was
conducted.
Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus:

Under the circumstances, the policemen had authority to pursue and arrest Walpan Ladjaalam
and confiscate the firearm he used in shooting at the policemen and to enter his house to effect
said arrest and confiscation of the firearm. Under Rule 113, Section 5 (a), of the Rules of Court, A
peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in his
presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense. An offense is committed in the presence or within the view of an officer, within
the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense,
although at a distance, or hears the disturbances created thereby and proceeds at once to the
scene thereof. At the time the policemen entered the house of accused Walpan Ladjaalam after
he had fired shots at the policemen who intended to serve the Search Warrant to him, the accused
was engaged in the commission of a crime, and was pursued and arrested after he committed
the crime of shooting at the policemen who were about to serve the Search Warrant.[23]

As a consequence of the legal arrest, the seizure of the following was also deemed valid: the
M14 rifle (with a magazine containing seventeen live ammunition)[24] used by appellant against
the police elements, two M14 magazines, and three other M16 rifle magazines. [25] The trial court
observed that these items were in plain view of the pursuing police officers. Moreover, it added
that these same items were evidence [of] the commission of a crime and/or contraband and
therefore, subject to seizure[26] since appellant had not applied for a license to possess firearm
and had not been given authority to carry firearm outside his residence.[27]
For being incredible and unsupported by evidence, appellants claim that the items that were
seized by the police officers had been planted was disbelieved by the trial court. It ruled that if the
police officers wanted to plant evidence to incriminate him, they could have done so during the
previous raids or those conducted after his arrest. To its mind, it was unbelievable that they would
choose to plant evidence, when they were accompanied by the barangay chairman and a radio
reporter who might testify against them. It then dismissed these allegations, saying that frame-
up, like alibi, was an inherently weak defense.[28]
The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned
as follows:

The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and
SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and maintained a
drug den in his extension house where shabu or methamphetamine hydrochloride, a regulated
drug, was sold, and where persons or customers bought and used shabu or methamphetamine
hydrochloride by burning the said regulated drug and sniffing its smoke with the use of an
aluminum foil tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are
used in any form or are found. Its existence [may be] proved not only by direct evidence but may
also be established by proof of facts and circumstances, including evidence of the general
reputation of the house, or its general reputation among police officers. The uncorroborated
testimony of accused Walpan Ladjaalam a.k.a. Warpan that he did not maintain an extension
house or a room where drug users who allegedly buy shabu from him inhales or smokes shabu
cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He
admitted that he is the owner of the extension house but he alleged that there were four (4)
occupants who rented that extension house. He knew the name of only one of the four occupants
who are allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorroborated,
Walpans testimony was not elaborated by evidence as to when or for how long was the extension
house rented, the amount of rental paid, or by any other document showing that the extension
house was in fact rented.The defense of denial put up by accused Walpan Ladjaalam
a.k.a. 'Warpan is a weak defense. Denial is the weakest defense and cannot prevail over the
positive and categorical testimonies of the prosecution witnesses. Denials, if unsubstantiated by
clear and convincing evidence, are negative and self-serving evidence which deserve no weight
in law and cannot be given evidentiary weight over the testimony of credible witnesses who testify
on affirmative matters. As between the positive declaration of the prosecution witnesses and the
negative statements of the accused, the former deserve more credence.[29]

In conclusion, the trial court explained appellants liability in this manner:

x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his
house to serve a search warrant constitutes the crime of direct assault with multiple attempted
homicide[,] not multiple attempted murder with direct assault[,] considering that no policeman was
hit and injured by the accused and no circumstance was proved to qualify the attempted killing to
attempted murder.
The accused Walpan Ladjaalam a.k.a. Warpan cannot be held liable [for] the crime of Violation
of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act 6425 otherwise known
as the Dangerous Drugs Act of 1992, as amended, because the fifty (50) pieces of folded
aluminum foils having a total weight of 1.7426 grams all containing methamphetamine
hydrochloride or shabu allegedly found in his house are inadmissible as evidence against him
considering that they were seized after [a] search conducted by virtue of Search Warrant No. 20
which is totally null and void as it was issued for more than one offense, and were not found
in plain view of the police officers who seized them. Neither could the accused be held liable for
illegal possession of firearms and ammunition except for the (1) M14 rifle with Serial Number
1555225 and with magazine containing fifteen (15) live ammunition and two more M14 rifle
magazines with twenty (20) and twenty-one (21) live ammunition respectively considering that the
policemen who recovered or seized the other firearms and ammunition did not testify in court. The
blue bag containing assorted coins cannot be returned to the accused Walpan Ladjaalam
a.k.a. Warpan because according to the accused the blue bag and assorted coins do not belong
to him[;] instead the said assorted coins should be turned over to the National Treasury.[30]

The Issues

In his Brief, appellant submits the following Assignment of Errors:

I

The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first
at the police officers who went to his house to serve a search warrant upon him which led to an
exchange of fire between Ladjaalam and the police officer.

II

The trial court erred when it denied the appellant the right and opportunity for an ocular inspection
of the scene of the firefight and where the house of the appellant [was] located.

III

The trial court erred when it ruled that the presumption of regularity in the performance of their
duties [excluded] the claim of the appellant that the firearms and methamphetamine hydrochloride
(i.e. shabu) were planted by the police.[31]

In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request
for ocular inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-
up. In addition, we shall also discuss the proper crimes and penalties to be imposed on appellant.

The Courts Ruling

The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection

Appellant insists that the trial court erred in denying his request for an ocular inspection of
the Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court
a better perspective and an idea with respect to the scene of the crime.[32] We do not agree.
We fail to see the need for an ocular inspection in this case, especially in the light of the clear
testimonies of the prosecution witnesses.[33]We note in particular that the defense had even
requested SPO1 Amado Mirasol Jr. to sketch the subject premises to give the lower court a fairly
good idea of appellants house.[34] Viewing the site of the raid would have only delayed the
proceedings.[35] Moreover, the question whether to view the setting of a relevant event has long
been recognized to be within the discretion of the trial judge.[36] Here, there is no reason to disturb
the exercise of that discretion.[37]

Second Issue: Credibility of Prosecution Witnesses

Appellant, in essence, questions the credibility of the prosecution witnesses.[38] Suffice it to

state that the trial courts assessment of their credibility is generally accorded respect, even
finality.[39] After carefully examining the records and finding no material inconsistencies to support
appellants claim, we cannot exempt this case from the general rule.[40] Quite the contrary, the
testimonies of these witnesses positively showed that appellant had fired upon the approaching
police elements, and that he had subsequently attempted to escape. SPO1 Amado Mirasol
Jr.[41]testified thus:
PROSECUTOR NUVAL:
Q: And, this trail is towards the front of the house of the accused?
A: Yes.
Q: And its there where you were met by a volley of fire?
A: Yes, Your Honor.
COURT:
Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You
said you were fired upon?
A: More or less, five (5) meters.
xxxxxxxxx
PROSECUTOR NUVAL:
Q: Now, you said you were able to enter the house after the gate was opened by your colleague
Felipe Gaganting ... I will reform that question.
Q: Who opened the gate Mr. Witness?
A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.
Q: And, at that time you were hiding at the concrete fence?
A: Yes.
 Q: Now, when this gate was opened, you said you went inside the house, right?
A: Yes.
Q: What did you see inside the house?
A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran
[sic] Ladjaalam at the ground floor. We went inside the sala on the ground floor of his
house[;] I saw two old woman.
xxxxxxxxx
PROSECUTOR NUVAL:
Q: Now, what did you do with these two old women?
A: I did not mind those two old women because those two women were sitting on the ground
floor. I was concentrating on the second floor because Ladjaalam was firing towards our
group so, I, together with Ricardo Lacastesantos, went upstairs to the second floor of the
house.
Q: Were you able to go to the second floor of the house?
A: Yes.
Q: What happened when you were already on the second floor?
A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence
and immediately went inside the bedroom [o]n the second floor and he went immediately
and jumped from the window of his house x x x leading to the roof of the neighbors house.
xxxxxxxxx
COURT:
Reform. That is leading
Q: What happened when you entered and he jumped to the roofing of the neighbors house?
A: Immediately, I myself, we immediately went downstairs and asked the assistance of the
members of the raiding team to arrest Walfan Ladjaalam.
xxxxxxxxx
PROSECUTOR NUVAL:
Q: Were you able to go down?
A: Yes.
Q: What happened when you were there?
A: We immediately went out and I asked the assistance of the members of the raiding team
and the investigator of the unit especially SPO1 Cesar Rabuya. I was able to manage to
arrest Walfan Ladjaalam.[42]
What happened thereafter was narrated by Senior Police Officer Ricardo
Lacastesantos,[43] as follows:
Q: What did you notice [o]n the second floor?
 A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside,
do not fire at the second floor because there [are] a lot of children here.
Q: Now, that rifle you said [was an] M14, where did you find this?
A: At the sala set.
Q: This sala set where is this located?
A: Located [on] the second floor of the house.
Q: Is there a sala [o]n the second floor?
A: Yes.
Q: Can you still identify that M14 rifle which you said you recovered from the sale set?
A: Yes.
Q: Why can you identify that?
A: The Serial No. of M14 is 1555225 and I marked it with my initial.
Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this?
A: 1555225 and I put my initial, RJL.
FISCAL NUVAL:
This is already marked as our Exhibit B-3 with magazine, one magazine and seven round
[ammunition].
Q: After recovering this, what did you do with this firearm?
A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine
and I turned it over to the investigator.
Q: Where did you turn it over?
A: At the crime scene.
Q: Now, that magazine, can you still identify this?
A: Yes.
Q: Why?
A: I put x x x markings.
xxxxxxxxx
COURT:
So, a[si]de from the magazine attached to the M14 rifle you found six more magazines?
A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14.
Q: The M16 magazines [were] empty?
A: Empty.
Q: How about the M14?
A: Found with [ammunition].
xxxxxxxxx
Q: So, where are the three M16 magazines?
A: In the corner.
Q: What did you do with [these] three magazines of M16?
A: I turned [them] over to the investigator.
Q: Can you identify them?
A: Yes, because of my initials[.]
Q: Where are your initials?
A: On the magazines.
Q: RJL?
A: RJL.[44]
These were confirmed by the results of the paraffin tests conducted on appellant and on the
weapons seized during the raid. Both of his hands as well as the weapons, particularly the M-14
which he had used, were positive for gunpowder nitrate. Police Inspector Mercedes Delfin-Diestro
explained in open court:
Q: Okay. Now, what was the result of your examination, Madam Witness?
A: The result of the examination [was] that both hands of the subject person, ha[d] presence
of gun powder nitrates.
Q: What do you mean Madam Witness, what does that indicate?
A: It indicates there is presence of powder nitrates.
Q: Can we conclude that he fired a gun?
A: I cannot conclude that he fired a gun because there are so many circumstances [why] a
person [would be] positive on his hands for gun powder nitrates.
Q: But, most likely, he fired a gun?
A: Yes.
xxxxxxxxx
PROSECUTOR NUVAL:
Q: What about, Madam Witness this Exhibit B-3, which is the M14 rifle. What did you do with
this?
A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there
[were] black and traces of brown residue on the bolt, chamber and in the barrel.
Q: And, that indicates Madam Witness...?
A: It indicates that the gun was fired.
Q: Recently?
 A: Because of the traces of brown residue, it could be possible that the gun was fired before
the incident x x x.
COURT:
Q: There is also black residue?
A: Yes.
Q: What does it indicate?
A: It indicates that the firearm was recently fired.
Q: And, where is this swab used at the time of the swabbing of this Exhibit?
A: This one.
PROSECUTOR NUVAL:
May we ask that this be marked as Exhibit B-3-A.
COURT:
Q: The firing there indicates that the gun was recently fired, during the incident?
A: Yes.
Q: And also before the incident it was fired because of the brown residue?
A: Yes, Your Honor.[45] (emphasis supplied)
Duly proven from the foregoing were the two elements[46] of the crime of illegal possession of
firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the
approaching police officers clearly showed the existence of the firearm or weapon and his
possession thereof. Sufficing to satisfy the second element was the prosecutions
Certification[47] stating that he had not filed any application for license to possess a firearm, and
that he had not been given authority to carry any outside his residence.[48] Further, it should be
pointed out that his possession and use of an M-14 rifle were obviously unauthorized because
this weapon could not be licensed in favor of, or carried by, a private individual.[49]

Third Issue: Defense of Frame-up

From the convoluted arguments strewn before us by appellant, we gather that the main
defense he raises is frame-up. He claims that the items seized from his house were planted, and
that the entire Zamboanga police force was out to get him at all cost.
This Court has invariably held that the defense of frame-up is inherently weak, since it is easy
to fabricate, but terribly difficult to disprove.[50]Absent any showing of an improper motive on the
part of the police officers,[51] coupled with the presumption of regularity in the performance of their
duty, such defense cannot be given much credence.[52] Indeed, after examining the records of this
case, we conclude that appellant has failed to substantiate his claim. On the contrary, his
statements in his Counter Affidavit are inconsistent with his testimony during the trial. [53] He
testified thus:
Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit?
 A I could not remember.
Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day
of December 1997[;] tell us whose signature is this appearing above the typewritten name
FISCAL NUVAL:
Q . . . . Walpan Ladjaalam, whose signature is this?
(Showing)
A Yes, Sir. This is mine.
Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote:
that I was resting and sleeping when I heard the gunshots and I noticed that the shots
were directed towards our house.. and I inspected and x x x we were attacked by armed
persons.. and I was apprehended by the persons who attacked x x x our house; [the]
house you are referring to [in] this paragraph, whose house [are you] referring to, is this
[what] you are referring to [as] your house or the house of your neighbors [from] which you
said you heard gunshots?
A Our house.
Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: that [o]n that afternoon
of September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo. Campo Muslim,
my companions in my house [were] the two old women and my children, is this correct?
A They were not there.
Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at
Aplaya, Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house or
you were in your neighbors[] house at that time when you heard gunshots?
A I was in the house near my house.
Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home
in [your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct?
A Yes, Sir. This is not correct.[54]

Crime and Punishment

The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct
assault with attempted homicide, and (3) illegal possession of firearms. We will discuss each of
these.

Maintenance of a Drug Den

We agree with the trial court that appellant was guilty of maintenance of a drug den, an
offense for which he was correctly sentenced to reclusion perpetua. His guilt was clearly
established by the testimony of Prosecution Witness Rino Bartolome Locson, who himself had
used the extension house of appellant as a drug den on several occasions, including the time of
the raid. The formers testimony was corroborated by all the raiding police officers who testified
before the court. That appellant did not deny ownership of the house and its extension lent
credence to the prosecutions story.

Direct Assault with Multiple Attempted Homicide

The trial court was also correct in convicting appellant of direct assault[55] with multiple counts
of attempted homicide. It found that [t]he act of the accused [of] firing an M14 rifle [at] the
policemen[,] who were about to enter his house to serve a search warrant x x x constituted such
complex crime.[56]
We note that direct assault with the use of a weapon carries the penalty of prision
correccional in its medium and maximum periods, while attempted homicide carries the penalty
of prision correccional.[57] Hence, for the present complex crime, the penalty for direct assault,
which constitutes the most serious crime, should be imposed and applied in its maximum
period.[58]

Illegal Possession of Firearms

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial
court convicted him also of the separate offense of illegal possession of firearms under PD 1866,
as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years
of prision mayor.
The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should
not have applied the new law. It contends that under the facts of the case, the applicable law
should have been PD 1866, as worded prior to its amendment by RA 8294.
The trial courts ruling and the OSGs submission exemplify the legal communitys difficulty in
grappling with the changes brought about by RA 8294. Hence, before us now are opposing views
on how to interpret Section 1 of the new law, which provides as follows:

SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended
to read as follows:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000)
shall be imposed if the firearm is classified as high powered firearm which includes those with
bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and
also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22
centerfire magnum and other firearms with firing capability of full automatic and by burst of two or
three:Provided, however, That no other crime was committed by the person arrested.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.

If the violation of this Section is in furtherance of or incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an
element of the crime of rebellion or insurrection, sedition, or attempted coup detat.

The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall willfully
or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be
used by any person or persons found guilty of violating the provisions of the preceding paragraphs
or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal
authority to be carried outside of their residence in the course of their employment.

The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed
firearm outside his residence without legal authority therefor.

Citing People v. Jayson,[59] the OSG argues that the foregoing provision does not cover the
specific facts of this case. Since another crime -- direct assault with multiple unlawful homicide --
was committed, appellant cannot be convicted of simple illegal possession of firearms under the
second paragraph of the aforecited provision. Furthermore, since there was no killing in this
case, illegal possession cannot be deemed as an aggravating circumstance under the third
paragraph of the provision. Based on these premises, the OSG concludes that the applicable law
is not RA 8294, but PD 1866 which, as worded prior the new law, penalizes simple illegal
possession of firearms even if another crime is committed at the same time.[60]
Applying a different interpretation, the trial court posits that appellant should be convicted of
illegal possession of firearms, in addition to direct assault with multiple attempted homicide. It did
not explain its ruling, however. Considering that it could not have been ignorant of the proviso[61] in
the second paragraph, it seemed to have construed no other crime as referring only to homicide
and murder, in both of which illegal possession of firearms is an aggravating circumstance. In
other words, if a crime other than murder or homicide is committed, a person may still be convicted
of illegal possession of firearms. In this case, the other crime committed was direct assault with
multiple attempted homicide; hence, the trial court found appellant guilty of illegal possession of
firearms.
We cannot accept either of these interpretations because they ignore the plain language of
the statute. A simple reading thereof shows that if an unlicensed firearm is used in the commission
of any crime, there can be no separate offense of simple illegal possession of firearms.Hence, if
the other crime is murder or homicide, illegal possession of firearms becomes merely an
aggravating circumstance, not a separate offense. Since direct assault with multiple attempted
homicide was committed in this case, appellant can no longer be held liable for illegal possession
of firearms.
Moreover, penal laws are construed liberally in favor of the accused.[62] In this case, the plain
meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other
interpretation is justified, for the language of the new law demonstrates the legislative intent to
favor the accused.[63] Accordingly, appellant cannot be convicted of two separate offenses of
illegal possession of firearms and direct assault with attempted homicide. Moreover, since the
crime committed was direct assault and not homicide or murder, illegal possession of firearms
cannot be deemed an aggravating circumstance.
We reject the OSGs contention that PD 1866, as worded prior to its amendment by RA 8294,
should be applied in this case. When the crime was committed on September 24, 1997, the
original language of PD 1866 had already been expressly superseded by RA 8294 which took
effect on July 6, 1997.[64] In other words, no longer in existence was the earlier provision of PD
1866, which justified a conviction for illegal possession of firearms separate from any other
crime. It was replaced by RA 8294 which, among other amendments to PD 1866, contained the
specific proviso that no other crime was committed.
Furthermore, the OSGs reliance on People v. Jayson[65] is misplaced. True, this Court
sustained the conviction of appellant for illegal possession of firearms, although he had also
committed homicide. We explained, however, that the criminal case for homicide [was] not before
us for consideration.
Just as unacceptable is the interpretation of the trial court. We find no justification for limiting
the proviso in the second paragraph to murder and homicide. The law is clear: the accused can
be convicted of simple illegal possession of firearms, provided that no other crime was committed
by the person arrested. If the intention of the law in the second paragraph were to refer only to
homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily,
where the law does not distinguish, neither should we.
The Court is aware that this ruling effectively exonerates appellant of illegal possession of an
M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While
the penalty for the first is prision mayor, for the second it is only prision correccional. Indeed, the
accused may evade conviction for illegal possession of firearms by using such weapons in
committing an even lighter offense,[66] like alarm and scandal[67] or slight physical injuries,[68] both
of which are punishable by arresto menor.[69] This consequence, however, necessarily arises from
the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception that
the result reached here appears unwise should be addressed to Congress. Indeed, the Court has
no discretion to give statutes a new meaning detached from the manifest intendment and
language of the legislature. Our task is constitutionally confined only to applying the law and
jurisprudence[70] to the proven facts, and we have done so in this case.
WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that
appellant is found guilty only of two offenses: (1) direct assault and multiple attempted homicide
with the use of a weapon, for which he is sentenced to 2 years and 4 months to 6 years of prision
correccional; and (2) maintaining a drug den, for which he was correctly sentenced by the trial
court to reclusion perpetua. Costs against appellant.
Let a copy of this Decision be furnished the Congress of the Philippines for a possible review,
at its sound discretion, of RA 8294.
SO ORDERED.
Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.
[G.R. No. 117033. February 15, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL AVECILLA y

MOBIDO, accused-appellant.

DECISION
YNARES-SANTIAGO, J.:

Accused-appellant was charged with the crime of Qualified Illegal Possession of Firearm,
committed as follows:

That on or about December 24, 1991, in the City of Manila, Philippines, the said accused, not
being allowed or authorized by law to keep, possess and carry a firearm, did then and there
wilfully, unlawfully, and knowingly have in his possession, control and custody a firearm, to wit:

One (1) .38 Caliber Revolver Colt (Paltik) marked made in USA

without first obtaining the necessary license and/or permit to carry and possess the same and in
connection and by reason of such possession, did then and there wilfully, unlawfully and
feloniously, with intent to kill, fire and shoot one Macario Afable, Jr. y Canqui, thus inflicting upon
the latter mortal gunshots and injuries which caused the death of the latter as a consequence.[1]

It appears from the records that at about 11:00 oclock in the evening of December 24, 1991,
accused-appellant arrived at the basketball court located on Dapo Street, Pandacan, Manila, and,
for no apparent reason, suddenly fired a gun in the air. He then went to a nearby alley and,
minutes later, proceeded to the closed store about four (4) meters away from the basketball
court. There, he initiated an argument with the group of Boy Manalaysay, Jimmy Tolentino and
Macario Afable, Jr. Afable tried to pacify accused-appellant, whereupon, the latter placed his left
arm around Afables neck and shot him pointblank on the abdomen. Afable ran toward the alley
and accused-appellant ran after him. Another shot rang out, so one of the bystanders, Carlos
Taganas, went to the alley and there, he saw accused-appellant and Afable grappling for
possession of the gun. The Chief Barangay Tanod arrived and was able to wrest the gun away
from accused-appellant, who immediately fled from the scene of the incident. Afable was rushed
to the Philippine General Hospital, where he eventually expired.
On June 21, 1994, the Regional Trial Court of Manila, Branch 38, rendered judgment
convicting accused-appellant of the crime of Qualified Illegal Possession of Firearm, sentencing
him to suffer the penalty of reclusion perpetua, and ordering him to indemnify and pay damages
to the victims heirs.[2] Hence, this appeal filed by accused-appellant.
The records and the evidence show that the elements of the offense of qualified illegal
possession of firearms, defined in the second paragraph of Section 1, Presidential Decree No.
1866, are present in this case. Specifically, there are:
1. there must be a firearm;
2. the gun was possessed by the accused;
3. the accused had no license from the government; and
 4. homicide or murder was committed by the accused with the use of said firearm.[3]
The prosecution sufficiently established by evidence that accused-appellant had in his
custody and possession the following firearms and ammunitions:
1. One (1) .38 cal. Rev., Colt paltik without serial number, nickel plated with brown
handle, two and one half inches barrel and marked BC;
2. Three (3) .38 Caliber cartridge cases marked BC-1, BC-2, BC-3;
3. Two (2) .38 cal. Ammo. (used for test);
4. One (1) .38 cal. slug (deformed) marked F from Medico legal.[4]
Likewise, per Certification of the Firearms and Explosives Office dated September 1,
1992,[5] it was proved that accused-appellant was not a licensed or registered firearm holder of
any kind and caliber.
Finally, there was an eyewitness account positively asserting that accused-appellant had the
subject firearm in his possession and used it in shooting the victim.[6]The medical examination on
the victim disclosed that the gunshot wounds he sustained were caused by the same unlicensed
firearm in accused-appellants possession, and that the same were the direct cause of the death
of the victim. The ballistics report established that the deformed .38 caliber slugs found in the
victims body were fired from the subject firearm.[7] The victims cause of death was determined as
cardio-respiratory arrest due to shock and hemorrhage secondary to gunshot wound, left antero-
lateral thorax.[8]
However, the law on illegal possession of firearms has been amended by Republic Act No.
8294, which took effect on July 6, 1994. The pertinent provision of the said law provides:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, that no other crime was committed.

xxxxxxxxx

If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.

If the violation of this Section is in furtherance of or incident to, or in connection with the crime
of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as
an element of the crime of rebellion, or insurrection, sedition, or attempted coup detat.
(Underscoring provided)

It is clear from the foregoing that where murder or homicide results from the use of an
unlicensed firearm, the crime is no longer qualified illegal possession, but murder or homicide, as
the case may be. In such a case, the use of the unlicensed firearm is not considered as a separate
crime but shall be appreciated as a mere aggravating circumstance. In view of the amendments
introduced by Republic Act No. 8294 to Presidential Decree No. 1866, separate prosecutions for
homicide and illegal possession are no longer in order. Instead, illegal possession of firearms is
merely to be taken as an aggravating circumstance in the homicide case.[9]
Thus, in People v. Nepomuceno, Jr.,[10] we stated:

But, pursuant to the amendment, the use of an unlicensed firearm in the commission of
murder or homicide is treated as an aggravating circumstance. There, the illegal possession
or use of the unlicensed firearm is no longer separately punished. This Court emphatically
said so in People v. Bergante (286 SCRA 629 [1998]), thus:

The violation of P.D. No. 1866 should have been punished separately conformably with our ruling
in People v. Quijada. Nevertheless, fortunately for appellant Rex Bergante, P.D. No. 1866 was
recently amended by Republic Act. No. 8294, otherwise known as An Act Amending the
Provisions of Presidential Decree No. 1866, as Amended. The third paragraph of Section 1 of
said Act provides that if homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating circumstance. In short,
only one offense should be punished, viz., either homicide or murder, and the use of the
unlicensed firearm should only be considered as an aggravating circumstance. Being favorable
to Rex Bergante, this provision may be given retroactive effect pursuant to Article 22 of the
Revised Penal Code, he not being a habitual criminal.

The crime of illegal possession of firearm, in its simple form, is committed only where the
unlicensed firearm is not used to commit any of the crimes of murder, homicide, rebellion,
insurrection, sedition or attempted coup detat. Otherwise, the use of unlicensed firearm would be
treated either: (1) as an essential ingredient in the crimes of rebellion, insurrection, sedition or
attempted coup detat; or (2) as an aggravating circumstance in murder or homicide.

With respect to the conviction of accused-appellant for illegal possession of firearms under P. D.
No. 1866, it was held in the case of People vs. Molina (292 SCRA 742) and reiterated in the recent
case of People vs. Ronaldo Valdez (G.R. No. 127663, March 11, 1999, 304 SCRA 611), that in
cases where murder or homicide is committed with the use of an unlicensed firearm, there can
be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in
view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed
firearm in murder or homicide is simply considered as an aggravating circumstance in the murder
or homicide and no longer as a separate offense. Furthermore, the penalty for illegal possession
of firearms shall be imposed provided that no other crime is committed (Section 1 of R.A. No.
8294). In other words, where murder or homicide was committed, the penalty for illegal
possession of firearms is no longer imposable since it becomes merely a special aggravating
circumstance (People v. Molina, supra, at p. 782).

It bears stressing, however, that the dismissal of the present case for illegal possession of firearm
should not be misinterpreted to mean that there can no longer be any prosecution for the offense
of illegal possession of firearms. In general, all pending cases involving illegal possession of
firearms should continue to be prosecuted and tried if no other crimes expressly provided in R. A.
No. 8294 are involved (murder or homicide, under Section 1, and rebellion, insurrection, sedition
or attempted coup d etat, under Section 3) (People v. Valdez, supra).[11]

Inasmuch as the amendatory law is favorable to accused-appellant in this case, the same
may be retroactively applied. This new law applies even to violations that occurred prior to its
effectivity as it may be given retroactive effect under Article 22 of the Revised Penal Code.[12]
R.A. 8294 took effect on July 6, 1997. The crime involved in the case at bench was committed on
May 5, 1991. As a general rule, penal laws will generally have prospective application except
where the new law will be advantageous to the accused. In this case R.A. 8294 will spare
accused-appellant from a separate conviction for the crime of illegal possession of
firearm. Accordingly, said law should be given retroactive application.[13]

Neither can accused-appellant be charged with simple illegal possession. As stated above,
the same may only done where no other crime is committed.[14]
With more reason, accused-appellant cannot be convicted of homicide or murder with the
use of the unlicensed firearm as aggravating, inasmuch as said felonies are not charged in the
information but merely mentioned as the result of the use of the unlicensed firearm. Accused-
appellant was not arraigned for homicide or murder. Hence, he cannot be convicted of any of
these crimes without violating his right to be informed of the nature and cause of the accusation
against him, not to mention his right to due process.
WHEREFORE, in view of the foregoing, the appealed decision is REVERSED. Criminal Case
No. 92-105691, for Qualified Illegal Possession of Firearm, is DISMISSED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

G.R. No. 159703 March 3, 2008

CEDRIC SAYCO y VILLANUEVA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the May 23, 2003 Resolution1 of the Court Appeals (CA) which affirmed the conviction
of Cedric Sayco y Villanueva2(petitioner) for violation of Section 1, Presidential Decree (P.D.) No.
1866, as amended by Republic Act (R.A.) No. 8294; as well as the August 7, 2003 CA
Resolution3 which denied his Motion for Reconsideration.

The facts are not disputed.

Petitioner was charged before the Municipal Trial Court in Cities (MTCC), Bais City with illegal
possession of firearms under an Information which reads:

The undersigned Prosecutor II hereby accuses ZEDRIC SAYCO Y VILLANUEVA of the

crime of Illegal Possession of Firearm and Ammunitions penalized and defined under
Section 1 of Presidential Decree Number 1866 as amended by Republic Act Number
8294, committed as follows:
 That on or about January 3, 1999, at Bais City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, did, then and there willfully, unlawfully
and feloniously possess and carry away one (1) caliber 9MM marked "SIGSAUER P229"
with fourteen (14) live ammunitions and with Serial Number AE 25171, without first having
obtained the proper license or authority to possess the same.

An act contrary.4

Upon arraignment, petitioner entered a plea of "Not Guilty".5

On August 2, 2002, the MTCC rendered a Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the Court finds that the evidence presented has
sufficiently established the guilt of the accused beyond reasonable doubt. The accused
Zedric V. Sayco is convicted for violation of Section 1 of Presidential Decree No. 1866, as
amended by Republic Act No. 8294. There being no modifying circumstances, and
applying the Indeterminate Sentence Law, the Court sentences the accused to a prison
term ranging from THREE YEARS, SIX MONTHS AND TWENTY DAYS of Prision
Correccional Medium as minimum, to FIVE YEARS, FOUR MONTHS and TWENTY
DAYS of Prision Correccional Maximum as maximum, and to pay a fine of FIFTEEN
THOUSAND PESOS. The firearm (Exhibit A) and the ammunitions (Exhibit B) are forfeited
in favor of the government, to be disposed of in accordance with law.

IT IS SO ORDERED.6

On appeal, the Regional Trial Court (RTC), Bais City issued a Decision dated March 14, 2003,
affirming the conviction of petitioner but lowering his penalty as follows:

WHEREFORE, premises considered, the Judgment dated August 2, 2002 rendered by

the Municipal Trial Court in Cities, Bais City in Criminal Case No. 99-001 is hereby affirmed
in all respects subject only to the modification with respect to the penalty imposed by the
trial court. The herein accused-appellant is hereby sentenced to the indeterminate penalty
of four (4) months of arresto mayor as maximum [sic] to two (2) years, four (4) months and
one (1) day of prision correccional as maximum [sic].

SO ORDERED.7

Petitioner filed with the CA a Petition for Review but the same was denied in the May 23, 2003
CA Resolution assailed herein. Petitioner's Motion for Reconsideration8 was also denied by the
CA in its August 7, 2003 Resolution.

Hence, the present Petition raising the following issues:

Whether the lower court erred in convicting the petitioner for violation of P.D. 1866, as
amended by RA 8294, despite the latter's proof of authority to possess the subject firearm.

II
 Whether the prosecution's evidence proved the petitioner's guilt beyond reasonable
doubt.9

As summarized by the RTC and MTCC, the evidence for the prosecution consisted of the
following:

EVIDENCE OF THE PROSECUTION

The first prosecution witness in the person of PO3 Mariano Labe testified on January 17,
2002. He declared that on or about 3:35 in the afternoon of January 3, 1999, while they
were at the Police Station, they received a telephone call from a concerned citizen from
Tavera Street, Bais City, informing them that one unidentified person was inside Abueva's
Repair Shop located at Tavera Street, tucking a handgun on his waist. They immediately
went to the aforementioned place, and upon their arrival thereat, they saw one unidentified
person tucking a handgun on his right side waistline. They approached the unidentified
person and asked him if he had a license to possess said firearm, but the answer
was in the negative. At this juncture, they immediately effected the arrest, and
confiscated from his possession and custody a Caliber 9MM marked "SIGSAUER P299"
with 14 live ammunitions with Serial No. AE 25171. The arrested person was identified as
Zedric Sayco y Villanueva, a resident of Binalbagan, Negros Occidental.

SPO2 VALENTINO ZAMORA, member of the PNP Bais City, testified on February 26,
2002. He was presented to corroborate the testimony of Mariano Labe. He further
declared that during the incident, they talked to the accused in Cebuano, but they found
out then that the latter is an Ilonggo, so they spoke to him in English.

SPO2 VICENTE DORADO also testified on February 26, 2002. He corroborated the
testimony of SPO2 Valentino Zamora and PO2 Mariano Labe.

The following exhibits were admitted as part of the evidence of the prosecution:

Exhibit A - one (1) 9 mm pistol with serial no. 25171.

Exhibit B - fourteen (14) pieces live ammunition and one (1) magazine placed in a black
plastic bag.

Exhibit C - Joint Affidavit of the police officers.10 (Emphasis supplied)

For his defense, petitioner does not deny that he was in possession of the subject firearm and
ammunitions when he was apprehended on January 3, 1999 in Bais City, but he insists that he
had the requisite permits to carry the same, specifically:

1) Memorandum Receipt for Equipment (Non-expendable Property), which reads:

Hqs Field Station 743, 7ISU, ISG, PA, Camp Montelibano Sr., Bacolod City,
Philippines, 01 January 1999. I acknowledge to have received from MAJOR
RICARDO B. BAYHON (INF) PA, Commanding Officer, FS743, 7ISU, ISG, PA the
following property for which I am responsible, subject to the provision of the
accounting law and which will be used in the office of FS 7431.
 QTY UNIT NAME OF DESCRIPTION CLASSI UNIT PRICE TOTAL
FICATION
1 ea Cal 9mm (SIG SAUER) Pistol
SN: AE 25171
2 ea Mags for Cal 9mm pistol
24 ea Ctgs for 9mm Ammo

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x- NOTHING FOLLOWS -x-x-x-x-x-x-x-x-x-x-x-x-

x-x-x-x-x-x

Basis: For use of subject EP in connection with his official duties/mission in the
AOR.

NOTED BY: APPROVED BY:

Nolasco B. James (SGD) RICARDO B BAYHON (SGD)

SSg (Inf) PA Major (INF) PA
FS Supply NCO Commanding Officer
CA Zedric V. Zayco (SGD)
Confidential Agent;11

and 2) Mission Order dated January 1, 1999, thus:

Mission Orders

Number: FS743-A-241

TO: CA Cedric V. Zayco

I. DESTINATION Negros Island

II. PURPOSE C O N F I D E N T I A L

III. DURATION 01 January 1999 to 31 March 1999

IV. AUTHORIZED ATTIRE/UNIFORM

GOA ( ) BDA ( ) Civilian (x)

V. AUTHORIZED TO CARRY FIREARMS: (x) Yes ( ) No.

Caliber Make Kind Serial Nr MR/License Nr Nr Ammo

9mm Sig Pistol AE25171 ISG Prop 24 rds
Sauer
 VI. SPECIFIC INSTRUCTIONS:

a. For personnel in uniform, the firearms shall be placed in holster securely

attached to the belt. Personnel in uniform without holster and personnel in
civilian attire will ensure that their firearms are concealed unless in actual
and lawful use.

xxxx

RICARDO B. BAYHON (SGD)

Major (INF) PA
FS 743 Commander12

The RTC and MTCC gave no significance to the foregoing documents. The MTCC held that the
Memorandum Receipt and Mission Order do not constitute the license required by law because
"they were not issued by the Philippine National Police (PNP) Firearms and Explosives Unit, but
by the Commanding Officer of the Philippine Army who is not authorized by law to issue licenses
to civilians to possess firearms and ammunitions."13 The RTC added that, as held in Pastrano v.
Court of Appeals14and Belga v. Buban,15 said documents cannot take the place of the requisite
license.16

The CA wholly concurred with both courts.

In the present Petition, petitioner insists that he is a confidential agent of the Armed Forces of the
Philippines (AFP), and it was in that capacity that he received the subject firearm and ammunitions
from the AFP. As said firearm and ammunitions are government property duly licensed to the
Intelligence Security Group (ISG) of the AFP, the same could not be licensed under his
name;17instead, what he obtained were a Memorandum Receipt and a Mission Order whereby
ISG entrusted to him the subject firearm and ammunitions and authorized him to carry the same
around Bacolod City. Petitioner further argues that he merely acted in good faith when he relied
on the Memorandum Receipt and Mission Order for authority to carry said firearm and
ammunitions; thus, it would be a grave injustice if he were to be punished for the deficiency of
said documents.18

The Solicitor General filed his Comment,19pointing out that good faith is not a valid defense in the
crime of illegal possession of firearms.20

The arguments of petitioner are not tenable.

The corpus delicti in the crime of illegal possession of firearms is the accused's lack of license or
permit to possess or carry the firearm, as possession itself is not prohibited by law.21 To establish
the corpus delicti, the prosecution has the burden of proving that the firearm exists and that the
accused who owned or possessed it does not have the corresponding license or permit to possess
or carry the same.22

There is no dispute over these key facts: first, that the subject firearm and ammunitions exist;
second, that petitioner had possession thereof at the time of his apprehension; third, that
petitioner is a confidential agent of the ISG-AFP; fourth, that petitioner lacks a license issued by
the Firearms and Explosives Unit of the PNP; and fifth, that petitioner holds a Memorandum
Receipt and Mission Order covering the subject firearm and ammunitions. Thus, the issue to be
resolved is confined to whether petitioner's Memorandum Receipt and Mission Order constitute
sufficient authority for him to possess the subject firearm and ammunitions and carry the same
outside of his residence, without violating P.D. No. 1866, as amended by R.A. No. 8294.

As correctly cited by the Solicitor General, it is a settled jurisprudence that a memorandum receipt
and mission order cannot take the place of a duly issued firearms license,23 and an accused who
relies on said documents cannot invoke good faith as a defense against a prosecution for illegal
possession of firearms, as this is a malum prohibitum.24 Petitioner interposed no new argument
that would convince this Court to abandon a deep-rooted jurisprudence.

However, rather than outrightly dismiss the present petition in the light of existing jurisprudence,
this Court finds it opportune to examine the rules governing the issuance of memorandum receipts
and mission orders covering government-owned firearms to special and confidential civilian
agents, in order to pave the way for a more effective regulation of the proliferation of such firearms
and the abatement of crimes, such as extra-judicial killings, attendant to such phenomenon.

In 1901, the United States Philippine Commission enacted Act No. 175, providing for the
organization of an Insular Constabulary. Section 6 vested in the Chief of the Insular Constabulary
the following authority over the distribution of firearms:

Section 6. The Insular Chief shall prescribe for the Insular Constabulary suitable arms,
uniform, and equipment and shall report to the Commission, through the Civil Governor,
his action in this regard, together with a statement of the cost, to the end that appropriation
may be made to defray the cost thereof. The guns, revolvers, and ammunitions needed
to equip the insular and municipal police shall be purchased by the Insular
Purchasing Agent on the order of the Chief of Insular Constabulary, by whom they
shall be distributed to the provinces and municipalities as they may be needed. The
Chief of the Insular Constabulary shall keep a record of the guns and revolvers
distributed, by their numbers, to municipalities and provinces x x x. (Emphasis
supplied)

Firearms owned by the government may therefore be distributed by the Chief of the Insular
Constabulary to the members of the insular and municipal police, with merely a record of the
distribution being required.

Shortly, the Philippine Commission enacted Act No. 178025 regulating possession of firearms:

Section 1. It shall be unlawful for any person, firm, or corporation, for purposes of sale, to
import, buy or otherwise acquire, dispose of, possess, or have the custody of any rifle,
musket, carbine, shotgun, revolver, pistol, or air rifle, except air rifles of small caliber and
limited range used as toys, or any other deadly weapon x x x unless and until such
person, firm, or corporation shall secure a license, pay the license fee, and execute
a bond and otherwise comply with the requirements of this Act and the rules and
regulations issued in executive orders by the Governor-General pursuant to the provisions
of this Act x x x. (Emphasis supplied)

but exempted therefrom the following government-owned firearms:

 Section 16. The foregoing provisions of this Act shall not apply to firearms and ammunition
therefor regularly and lawfully issued to officers, soldiers, sailors, or marines of the
United States Army and Navy, the Constabulary, guards in the employ of the Bureau
of Prisons, the police force of the City of Manila, provincial prisoners and jails when
such firearms are in possession of such officials and public servants for use in the
performance of their official duties. (Emphasis supplied)

The 1917 Revised Administrative Code26retained the foregoing exemption:

Section 879. Exemption as to firearms and ammunition used by military and naval forces
or by peace officers. - This article shall not apply to firearms and ammunition
regularly and lawfully issued to officers, soldiers, sailors, or marines of the Unites
States Army and Navy, the Philippine Constabulary, guards in the employment of
the Bureau of Prisons, municipal police, provincial governors, lieutenant
governors, provincial treasurers, municipal police, provincial governors, lieutenant
governors, provincial treasurers, municipal treasurers, municipal presidents, and
guards of provincial prisoners and jails, when such firearms are in possession of
such officials and public servants for use in the performance of their official
duties. (Emphasis supplied)

In People of the Philippines v. Macarandang,27 we interpreted Section 879 of the 1917 Revised
Administrative Code as applicable to a secret agent appointed by a governor as said agent holds
a position equivalent to that of peace officer or member of the municipal police. We reiterated this
ruling in People of the Philippines v. Licera.28

In People v. Asa,29 we acquitted a civilian guard from a charge of illegal possession of firearms
on the ground that he acted in good faith in bearing the firearms issued to him by his superior.

Two years later, in People v. Mapa,30the Court, speaking through Justice Fernando, overhauled
its interpretation of Section 879, thus:

The law is explicit that except as thereafter specially allowed, "it shall be unlawful for any
person to x x x possess any firearm, detached parts of firearms or ammunition therefor,
or any instrument or implement used or intended to be used in the manufacture of firearms,
parts of firearms, or ammunition." The next section provides that "firearms and ammunition
regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces
of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau
of Prisons, municipal police, provincial governors, lieutenant governors, provincial
treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and
jails," are not covered "when such firearms are in possession of such officials and public
servants for use in the performance of their official duties."

The law cannot be any clearer. No provision is made for a secret agent. As such he
is not exempt. Our task is equally clear. The first and fundamental duty of courts is to
apply the law. "Construction and interpretation come only after it has been demonstrated
that application is impossible or inadequate without them." The conviction of the accused
must stand. It cannot be set aside.

Accused however would rely on People v. Macarandang, where a secret agent was
acquitted on appeal on the assumption that the appointment "of the accused as a secret
 agent to assist in the maintenance of peace and order campaigns and detection of crimes,
sufficiently put him within the category of a "peace officer" equivalent even to a member
of the municipal police expressly covered by section 879." Such reliance is misplaced.
It is not within the power of this Court to set aside the clear and explicit mandate of
a statutory provision. To the extent therefore that this decision conflicts with what
was held in People v. Macarandang, it no longer speaks with authority.31 (Emphasis
supplied)

We also abandoned the view that good faith is a defense against a prosecution for illegal
possession of firearms.32

On June 29, 1983, P.D. No. 1866 was issued, imposing stiffer penalties on illegal possession of
firearms. It also added the following separate requirement for carrying firearms:

Section 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms

and ammunition or implements used or intended to be used in the manufacture of firearms
or ammunition. - x x x The penalty of prision mayor shall be imposed upon any person
who shall carry any licensed firearm outside his residence without legal authority therefor.

xxxx

Section 7. Unauthorized issuance of authority to carry firearms and/or ammunition outside

of residence. - The penalty of prision correccional shall be imposed upon any person,
civilian or military, who shall issue authority to carry firearm and/or ammunition outside of
residence without authority therefor.

P.D. No. 1866 was later amended by R.A. No. 8294,33 which lowered the imposable penalties for
illegal possession of firearm when no other crime is committed. However, neither law amended
or repealed Section 879 of the 1917 Revised Administrative Code. Even Executive Order No.
292, otherwise known as the 1987 Administrative Code,34left Section 879 untouched.

As matters stand, therefore, Section 879, as construed by this Court in Mapa and Neri, and
reinforced by paragraph 6, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, is still the
basic law on the issuance, possession and carrying of government-owned firearms.

In exercise of its rule-making authority under Section 835of P.D. No. 1866, the Chief of the
Philippine Constabulary issued The Implementing Rules and Regulations of P.D. No. 1866, which
includes the following provisions salient to the issuance, possession and carrying of government-
owned firearms:

Section 1. Definition of terms. - For purposes of Presidential Decree No. 1866, the
following terms shall mean and be interpreted as hereinafter defined:

xxxx

d. "Mission Order" - is a written directive or order issued by government authority as

enumerated in Section 5 hereof to persons who are under his supervision and control for
a definite purpose or objective during a specified period and to such place or places as
therein mentioned which may entitle the bearer thereof to carry his duly issued or
licensed firearm outside of his residence when so specified therein.
 e. "Permit to Carry Firearm Outside of Residence" - is a written authority issued to any
person by the Chief of Constabulary which entitles such person to carry his licensed or
lawfully issued firearms outside of residence for the duration and purpose specified
therein.

f. "Residence" - refers to that place where the firearm and ammunition are being
permanently kept. It includes the office or house where they are kept and the premises of
the house enclosed by walls and gates separating said premises from adjacent
properties. For firearms covered by a regular license or special permit, their residence
shall be that specified in the license or permit; and those covered by a Certificate of
Registration ora Memorandum Receipt, their residence in the office/station to which
the grantee belongs.

xxxx

Section 5. Authority to issue mission order involving the carrying of firearm. - The following
are authorized to issue mission orders with provisions which may entitle the bearer thereof
to carry his issued/licensed firearm and ammunition for the duration of such mission:

a. For officers, men and regular civilian agents of the Ministry of National Defense
(MOND)/Armed Forces of the Philippines (AFP) including members of the ICHDF:

xxxx

(8) Provincial commanders, METRODISCOM commanders, company commanders and

their equivalent in the Philippine Air Force and Philippine Navy.

xxxx

Section 6. Specific guidelines in the carrying of firearms outside of residence. - The

following specific guidelines shall be strictly observed in the carrying of firearm outside of
residence:

a. Lawful Holders of Firearm Lawful holders of firearm (regular licenses, special permit,
certificate of registration or M/R) are prohibited from carrying their firearms outside of
residence except when they have been issued by the Chief of Constabulary a permit to
carry firearm outside of their residence as provided for in Section hereof or in actual
performance of duty or official mission under Section 4 and 5 hereof. (Emphasis
supplied.)

Section 6 (a) of the Implementing Rules and Regulations was later amended to read as follows:

a-1. Mission Order. - x x x No Mission Order shall be issued to any civilian agent
authorizing the same to carry firearms outside of residence unless he/she is included in
the regular plantilla of the government agency involved in law enforcement and
is receiving regular compensation for the services he/she is rendering in the agency.
Further, the civilian agent must be included in a specific law
enforcement/police/intelligence project proposal or special project which specifically
requires the use of firearm(s) to insure its accomplishment and that the project is duly
 approved at the PC Regional Command level or its equivalent level in other major services
of the AFP, INP and NBI, or at higher level of command. (Emphasis supplied)

The Ministry of Justice also issued Memorandum Circular No. 8 dated October 16, 1986, further
strengthening the foregoing Implementing Rules and Regulations, to wit:

x x x It is unlawful for any person or office to issue a mission order authorizing the carrying
of firearms by any person unless the following conditions are met:

1. That the AFP officer is authorized by the law to issue the mission order.

2. That the recipient or addressee of the mission order is also authorized by the law to
have a mission order, i.e., he must be an organic member of the command/unit of the AFP
officer issuing the mission order.If mission orders are issued to civilians (not members
of the uniformed service), they must be civilian agents included in the regular
plantilla of the government agency involved in law enforcement and are receiving
regular compensation for services they are rendering. (Emphasis supplied)

Earlier, a Letter Directive dated May 19, 198436 was issued to the Chief of Staff of the AFP,
prohibiting the issuance of government-owned firearms to civilians, viz:

4. The Implementing Rules and Regulations of P.D. 1866 which codifies all the laws on
firearms and explosives clarify the following:

xxxx

b. Section 5 identifies the officials/officers of the MOND/AFP who are authorized to issue
Mission Orders to enable AFP officers, men and regular civilian agents carry their firearms
in the performance of their duties. Regular civilian agents are those who are covered by
Permanent or Temporary Civil Service attested appointments in the plantilla of civilian
employees. Special or confidential civilian agents or the like are not regular civilian
agents and are therefore violating the law when they carry firearms (personal-
owned or government-issued) with Mission Orders.

c. There are no other laws or AFP regulations authorizing the loan of AFP-owned firearms
to private firms and individuals. (Emphasis supplied)

It is noted that the Implementing Rules and Regulations of P.D. No. 1866, as amended, allude to
"memorandum receipts" covering government-owned firearms. While said rules do not define the
term, we can derive its meaning from Section 492 of the Government Auditing and Accounting
Manual (Volume I: Government Auditing Rules and Regulations)37 to wit:

Section 492. Issues of equipment to officers and employees. - Equipment issued by the
property officer for official use of officials and employees shall be covered by
Memorandum Receipt for Equipment (MR) which shall be renewed every January of
the third year after issue. MRs not renewed after three years shall not be considered in
making physical count of the equipment. (Emphasis supplied)
From the foregoing discussion, therefore, the rules governing memorandum receipts and mission
orders covering the issuance to and the possession and/or carrying of government-owned
firearms by special or confidential civilian agents may be synthesized as follows:

First, special or confidential civilian agents who are not included in the regular plantilla of any
government agency involved in law enforcement or receiving regular compensation for services
rendered are not exempt from the requirements under P.D. No. 1866, as amended by R.A. No.
8294, of a regular license to possess firearms and a permit to carry the same outside of residence;

Second, said special or confidential civilian agents are not qualified to receive, obtain and possess
government-owned firearms. Their ineligibility will not be cured by the issuance of a memorandum
receipt for equipment covering said government-owned firearms. Neither will they qualify for
exemption from the requirements of a regular firearms license and a permit to carry firearms by
the mere issuance to them of a government-owned firearms covered by a memorandum receipt;
and

Third, said special or confidential civilian agents do not qualify for mission orders to carry firearms
(whether private-owned or government-owned) outside of their residence.

The foregoing rules do not apply to special or confidential civilian agents in possession of or
bearing private-owned firearms that are duly licensed and covered by permits to carry the same
outside of residence.

Set against the foregoing rules, it is clear that petitioner is not authorized to possess and carry
the subject firearm and ammunition, notwithstanding the memorandum receipt and mission order
which were illegally issued to him. Petitioner is a planter38 who was recruited to assist in the
counter-insurgency campaign of the AFP.39 However, as he offered no evidence that he is in the
regular plantilla of the AFP or that he is receiving regular compensation from said agency, he
cannot be considered a regular civilian agent but a mere confidential civilian agent as defined
under Section 6(a) of the Implementing Rules and Regulations of P.D. No. 1866. As such, he was
not authorized to receive the subject government-owned firearm and ammunitions. The
memorandum receipt he signed to account for said government properties did not legitimize his
possession thereof.

Neither was petitioner authorized to bear the subject firearm and ammunitions outside of his
residence. The mission order issued to petitioner was illegal, given that he is not a regular civilian
agent but a mere confidential civilian agent. Worse, petitioner was not even acting as such
confidential civilian agent at the time he was carrying the subject firearm and ammunitions.
Petitioner testified that at that time, he was not on an official mission in Bais City but had merely
visited the place to attend to a family emergency.40

While this Court sustains the conviction of petitioner for illegal possession of firearms, we re-
examine the imprisonment term to which petitioner was sentenced by the RTC, as affirmed by
the CA.

The MTCC imposed on petitioner the penalty of imprisonment for three (3) years, six (6) months
and twenty (20) days of prision correccional medium as minimum, to five (5) years, four (4)
months and twenty (20) days of prision correccional maximum as maximum.41 Applying the
Indeterminate Sentence Law, the RTC lowered the penalty to four (4) months of arresto mayor as
minimum, to two (2) years, four (4) months and one (1) day of prision correccional as
maximum.42 The CA affirmed the RTC.

A further revision of the penalty is warranted in view of the special provision in the Indeterminate
Sentence Law applicable to crimes penalized by a special law, to wit:

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the

Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said Code, and
the minimum which shall be within the range of the penalty next lower to that prescribed
by the Code for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the same. (Emphasis supplied)

P.D. No. 1866 imposed the penalty of reclusion temporal in its maximum period to reclusion
perpetua for illegal possession of firearms. R.A. No. 8294 lowered the penalty, as follows:

Section 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further

amended to read as follows:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of

Firearms or Ammunition or Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its
maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall
be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32
and other firearm of similar firepower, part of firearm, ammunition, or machinery,
tool or instrument used or intended to be used in the manufacture of any firearm
or ammunition: Provided, That no other crime was committed. (Emphasis
supplied.)

Under Article 27 of the Revised Penal Code, prision correccional in its maximum period ranges
from four (4) years, two (2) months and one (1) day, to six (6) years. As prescribed under Section
1 of the Indeterminate Sentence Law, the appropriate penalty that can be imposed on petitioner
should keep within said range. Thus, there being no attendant mitigating or aggravating
circumstance, and considering that petitioner accepted the subject firearm and ammunitions from
the government under the erroneous notion that the memorandum receipt and mission order
issued to him legitimized his possession thereof, the appropriate indeterminate penalty is four (4)
years, two (2) months and one (1) day as minimum to five (5) years, four (4) months and twenty-
one (21) days as maximum.

WHEREFORE, the petition is DENIED. However, for reasons stated in the text of herein Decision,
the Resolutions dated May 23, 2003 and August 7, 2003 of the Court of Appeals in CA-G.R. SP
No. 27228 together with the Decision dated March 14, 2003 of the Regional Trial Court of Bais
City are MODIFIED insofar only as the penalty of imprisonment is concerned. Petitioner Cedric
Sayco y Villanueva is sentenced to serve an indeterminate penalty of four (4) years, two (2)
months and one (1) day of prision correccional as minimum, to five (5) years, four (4) months and
twenty-one (21) days of prision correccional as maximum.
SO ORDERED.

Ynares-Santiago, Chairperson, Chico-Nazario, Nachura, Reyes, JJ., concur.