and trial thereafter ensued, with the prosecution presenting three witnesses, namely, the
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDGAR LEGASPI y
LIBAO, accused-appellant.
DECISION
MELO, J.:
On February 17, 1997, accused-appellant Edgar Legaspi y Libao was charged with the
crimes of rape and robbery in two separate Informations filed with Branch 170 of the Regional
Trial Court National Capital Judicial Region stationed in Malabon. The Informations
respectively read as follows:
Criminal Case No. 17640-MN
That on or about the 11th day of February, 1997, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused while
armed with a bladed weapon, with lewd design and by means of force and intimidation, did,
then and there, wilfully, unlawfully and feloniously have sexual intercourse with HONORATA
ONG Y GUEVARRRA, against her will and without her consent.
CONTRARY TO LAW.
Criminal Case No. 17641-MN
That on or about the 11th day of February, 1997, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused while
armed with bladed weapon, with intent to gain and by means of force, violation and intimidation,
did, then and there, wilfully, unlawfully and feloniously take, rob and divest cash money in the
amount of P500.00 to the damage and prejudice of the said HONORATA ONG Y
GUEVARRRA in the aforementioned amount of P500.00.
CONTRARY TO LAW.
(Rollo, pp. 4-5.)
Since the charges were related, the prosecutions motion that the two cases be jointly tried
was granted. For its part, the defense pointed out that accused-appellant had been previously
treated at the National Center for Mental Health from February 28 to March 2, 1996. It moved
that the arraignment of accused-appellant be deferred pending determination by the Center as to
whether accused-appellant was mentally fit to stand the rigors of trial. This motion was likewise
granted.
Accused-appellant was finally arraigned on November 18, 1997, following submission of
the report dated September 1, 1997 of the National Center for Mental Health stating that
accused-appellant could stand trial. Upon his arraignment, accused-appellant pleaded not guilty
complainant Honorata Ong, NBI Medico-Legal officer Dr. Ronaldo Mendez, and barangay
tanod Gerardo Ocampo. The defense, on the other hand, presented accused-appellant and SPO4
Salvador Ibo.
On November 6, 1998, the trial court rendered a decision, disposing:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. In Criminal Case No. 17640-MN, the Court finds accused Edgar Legaspi y Libao guilty
beyond reasonable doubt of the crime of RAPE, and considering the presence of the aggravating
circumstance of dwelling and nighttime, hereby sentences him to suffer the penalty of DEATH,
and to pay Honorata Ong the sum of P50,000.00 as moral damages and P30,000.00 as exemplary
damages plus cost of the suit;
2. In Criminal Case No. 17641-MN, the Court finds accused Edgar Legaspi y Libao guilty
beyond reasonable doubt of the crime of ROBBERY and there being the presence of the
aggravating circumstance of dwelling, hereby sentences him to suffer an indeterminate penalty
of six (6) months of arresto mayor, as minimum, to nine (9) years of prision mayor, as
maximum and to pay Honorata Ong the sum of P500.00 plus cost of suit;
SO ORDERED.
(Rollo, p. 18.)
The supreme penalty of death having been imposed for the rape, the case is now before
this Court on automatic review. As for accused-appellants conviction for robbery, accused-
appellant did not appeal therefrom, thus, as to that portion of the judgment against him, the same
has become final and executory (Section 3[c], Rule 122).
The facts, as shown by the records, are as follows:
At around 2:00 in the morning of February 11, 1997, complainant Honorata Ong, who
was then sleeping inside her house with her three daughters, was awakened by the sound of their
door opening. She initially thought that it was her husband coming home from work. When
Honorata opened her eyes, however, she saw a man armed with a knife standing by her feet.
More terrifying, the man already had his pants and briefs down on his knees and he was pointing
to her eldest daughter. Alarmed, Honorata told the man not to touch her daughter. The man
poked his knife at her and told her to stand up and then was made to lie down on the adjacent
sofa. Thereafter, the man removed Honoratas panties and had sex with her. All this time, he had
his knife at Honoratas neck. Honorata noticed that the man reeked of alcohol. After slaking his
lust, Honoratas assailant stood up then asked for money. Since the man still had his knife pointed
at her, Honorata could do nothing but comply. She gave him the only money she had, several
bills amounting to P500.00.
After threatening Honorata and her daughters with death if she reports the incident, the
man left. Honorata, out of fear, could do nothing but close the door. Later that day, however,
Honorata mustered enough courage to narrate her defilement to her sister-in-law and upon
1
describing him, Honoratas sister-in-law exclaimed that she knew a person living in Manapat
Street fitting the description.
That afternoon, Honorata, together with her husband, reported the incident to the barangay
captain. Thereafter, the captain, along with two tanods patrolled the area and, on the next day,
they managed to nab a person who fits the description given by Honorata of her assailant. When
the suspect was brought to the barangay hall for confrontation, he was positively identified by
Honorata as the rapist. This person, later identified as accused-appellant Edgar Legaspi y Libao,
was thus detained by the police.
The next day, Honorata had herself medically examined at the NBI but no evident signs
of extragenital physical injuries were found on her body.
On the other hand, all that accused-appellant could interpose as defenses were denial and
alibi, stating that at the time of the alleged incident, he was at his home in Manapat Street
sleeping. Accused-appellant also testified that he had been previously convicted of homicide
and Roberto Eugenio, the victim therein, was a resident of the exact same address where
complainant Honorata was living. Accused-appellant hinted at the possibility that relatives of
Roberto Eugenio had conspired with complainant Honorata to get rid of him.
Incidentally, Rivera Street where the alleged crime occurred is only two streets away from
Manapat. Moreover, aside from Honoratas address, accused-appellant did not present proof that
the relatives of Roberto Eugenio knew complainant Honorata.
Given the above circumstances, the trial court, as earlier mentioned, found accused-
appellant guilty of rape aggravated by dwelling and nighttime, and of robbery aggravated by
dwelling; and thereupon, imposed upon him the supreme penalty of death for the rape, and an
indeterminate penalty of six months to nine years for the robbery.
Accused-appellants plea for reversal is founded on the arguments that his guilt was not
shown beyond reasonable doubt, and that complainant Honoratas testimony is replete with
inconsistencies. He also insists on his alibi and alleged insanity.
We have carefully reviewed the record and we find the above contentions devoid of merit.
In support of his first, second, and third assigned errors, which accused-appellant
discussed jointly, he points to the discrepancies between Honoratas testimony in open court and
the entry in the police blotter. Accused-appellant harps on the fact that as described in the blotter,
the alleged rapist had an ala Babalu face (having an attenuated chin similar to that of the late
comedian Babalu) and a mole on the upper left part of his lips, while accused-appellant is
not Babalu and his mole is located not on the left but on the right side of his face.
That the facial features of accused-appellant differ from the description of Honoratas
assailant as found in the police blotter detracts not a whit from the credibility of Honoratas
testimony. It must be kept in mind that Honorata positively identified accused-appellant as her
rapist, not only during the investigation conducted by the police on the morning of January 15,
but also during the trial. At the Malabon Police Station, Honorata identified accused-appellant
thus:
T: Bakit naman po kayo nandito ngayon sa aming himpilan at nagbigay ng malaya at
kusang loob na salaysay?
S: Para po ipagharap ng reklamo ang taong ito (affiant pointing/identifying person of
EDGAR LEGASPI y LIBAO, @ EGAY, 29 years old, single, jobless, and residing at
No. 86 Manapat Street, Barangay Taong, Malabon, MM who is presently inside this
room).
T: Ito po bang taong ito ay dati na ninyong kilala?
S: Hindi po.
T: Bakit naman po ninyo gustong ipagharap ng reklamo ang taong ito?
S: Ni rape niya ako.
(Original Record, p. 80.)
During the trial, Honorata likewise identified accused-appellant as the person who
sexually violated her. She testified that she was able to recognize accused-appellant because the
fluorescent lamp inside her house was lit at the time of the incident.
Q: It was dark. Why were you able to see that person?
A: Because the light inside the house is on, sir.
Q: And you saw that person?
A: Yes, sir.
(tsn, August 18, 1998, p. 3.)
Likewise, we have heretofore held that a man and a woman cannot be physically closer to
each other than during the sexual act (People vs. Fuertes, 296 SCRA 602 [1998]). We thus have
on record Honoratas positive identification of accused-appellant as her assailant. Coupled with
the oft-quoted doctrine that entries in police blotters, though regularly done in the course of the
performance of official duty, are not conclusive proof of the truth stated in such entries since
they are usually incomplete and inaccurate (People vs. Padlan, 290 SCRA 388 [1998]), we hold
that any discrepancy in the police blotter entry and the open court testimony of Honorata does
not affect her credibility.
It must also be remembered that the entry in the police blotter was made at 6:30 on the
morning of February 12, 1997, only a few hours after the rape and robbery. At that time,
Honorata may not have yet fully recovered from the traumatic ordeal she had gone through,
resulting in an inaccurate entry in the police blotter. Besides, minor lapses are to be expected
when a person is recounting details of a traumatic experience too painful to recall (People vs.
Sta. Ana, 291 SCRA 188 [1998]).
On the other hand, accused-appellant claims that if Honorata were indeed raped on the
sofa of her one-room house, the creaking of the sofa and her moans would have awakened her
three sleeping daughters. He asserts that, strangely, this did not happen.
That Honoratas daughters, aged 3, 6, and 9 years, did not wake up during the assault is
not as incredible as accused-appellant would make it out. The failure of the three children to
wake up during the commission of the rape was probably due to the fact that they were sound
asleep. It is not unusual for children of tender ages to be moved from their sleeping mats and
transferred to another bed without eliciting the least protest from them, much less, awakening
2
them (People vs. Mustacisa, 159 SCRA 227 [1988]). It is also to be noted that among poor
couples with big families living in small quarters, copulation does not seem to be a problem
despite the presence of other persons around them. One may also suppose that growing children
sleep more soundly than grown-ups and are not easily awakened by adult exertions and
suspirations in the night (People vs. Ignacio, 233 SCRA 1 [1994]).
As to accused-appellants submission that the absence of spermatozoa in Honoratas organ
negates the commission of rape, the same rings hollow, the presence or absence of spermatozoa
being immaterial in the prosecution of a rape case, as it is well-settled that it is penetration,
however slight, and not ejaculation, that constitutes rape (People vs. dela Paz, Jr., 299 SCRA
86 [1998]). That there was penetration is shown by Honoratas testimony, thus:
Q: When he removed your panty what did he do next?
A: He inserted his organ in mine, sir.
Q: How did you come to know it was his penis that entered your private part?
A: I felt pain, sir.
(tsn, August 18, 1998, p. 5.)
Finally, accused-appellant contends that Honorata lied when she claimed not having
known accused-appellant or his family prior to the incident. Accused-appellant takes this to be
indicative that Honorata plotted with the family of Roberto Eugenio to get rid of him. As proof
of Honoratas alleged prevarication, accused-appellant presented the voters registration record
of a certain Roberto Eugenio, allegedly accused-appellants victim in a homicide case four years
prior to the incident in question, indicating that Robertos address was 27-D Rivera Street, Taong,
Malabon, Metro Manila, the exact same address of Honorata.
Accused-appellant has not presented proof that Honorata knew Roberto Eugenio or his
relatives. Neither has he shown that any relative of Eugenio still resides at Honoratas address,
27-D Rivera Street. Moreover, mere residence at the same address is not proof that Honorata
conspired with the relatives of Roberto Eugenio in an attempt to get rid of accused-
appellant. False testimony or incriminatory machinations must be proved by evidence more
substantial than a voters registration record.
In his defense, accused-appellant raises the defense of alibi, claiming that he was asleep
at his house at #86 Manapat Street, Taong, Malabon at the time of the incident. Accused-
appellants defense of alibi must, however, be looked upon with suspicion, not only because it is
inherently weak and unreliable, but also because it can be easily fabricated and concocted
(People vs. Tulop, 289 SCRA 316 [1998]). For alibi to prosper, the accused must prove not only
that he was at some other place at the time of the commission of the crime, but also that it was
physically impossible for him to be at the locus delicti or within its immediate vicinity (People
vs. Ballesteros, 285 SCRA 438 [1998]).
In the case at bar, accused-appellant has failed to meet both requisites. Aside from his
testimony that he was asleep at the time of the incident, no other witness came forward to
corroborate his version. Moreover, Manapat Street is only two streets away from Rodriguez
Street, the scene of the crime. Accused-appellant even admitted during the trial that this was
only a five-minute walk from his residence. Counterbalanced against Honoratas conduct
immediately after the incident and her positive identification of accused-appellant as her
assailant, accused-appellants defense of alibi is unavailing. In the words of the trial court:
Honorata did not know the accused before the incident. She immediately revealed the fate that
befell on her to her sister-in-law. They then reported the incident to the barangay and thereafter
to the police authorities; executed a sworn statement; submitted herself to a physical
examination by a Medico-Legal Officer of the NBI; and subscribed and swore to a complaint
for rape which would necessarily result in her exposure to the rigors of public trial. The
spontaneity of these acts clearly demonstrates her sincere desire to bring the accused to justice.
Moreover, no married woman in her right mind would subject herself to public scrutiny and
humiliation in order to perpetuate a falsehood. Neither would she take the risk of being alienated
from her husband and family had she not been violated and robbed of her money.
(RTC Decision, p. 4-5.)
In accused-appellants last assignment of error, he claims that the court a quo erred in not
ruling that he is entitled to the exempting circumstance of insanity. For insanity to be considered,
Paragraph 1, Article 12 of the Revised Penal Code requires a complete deprivation of rationality
in committing the act, i.e., that the accused be deprived of reason, that there be no consciousness
of responsibility for his acts, or that there be complete absence of the power to discern. The
defense of insanity or imbecility must be clearly proved, however, for there is a presumption
that acts penalized by law are voluntary (People vs. Medina, 286 SCRA 44 [1998]).
To prove his insanity, accused-appellants counsel points to his confinement at the
National Center for Mental Health prior to the incident in question. Likewise, his counsel claims
that when Honorata saw accused-appellant, the latters pants and briefs were already down on
his knees. He takes this to be an indicium of insanity.
Mere prior confinement does not prove that accused-appellant was deprived of reason at
the time of the incident. Firstly, accused-appellant did not submit proof that he was adjudged
insane by the National Center for Mental Health, only that he had been confined therein. Note
also that accused-appellant had already been discharged from the Center prior to the incident.
Even if accused-appellant were adjudged insane prior to the incident, his discharge implies that
he was already considered well. In fact, the psychiatric evaluation report of accused-appellant
states that his disorder runs a chronic course with periods of exacerbations and remissions. If
the insanity is only occasional or intermittent in nature, the presumption of its continuance does
not arise. He who relies on such insanity proved at another time must prove its existence also at
the time of the commission of the offense (People vs. Bonoan, 64 Phil. 87). This, accused-
appellant has failed to do.
Neither does having ones pants and briefs on ones knees indicate deprivation of reason. If
anything else, it shows the lechery and depravity of accused-appellant. Mental depravity which
results not from any disease of the mind, but from a perverted condition of the moral system,
where the person is mentally sane, does not exempt one from responsibility for crimes
committed under its influence (People vs. Medina, supra). The Court cannot, therefore,
appreciate the defense of insanity brought by accused-appellant.
3
 In sum, we find that the trial court did not err in finding Honoratas testimony to be clear,
straightforward, and worthy of credence, and consequently, in finding accused-appellant guilty
beyond reasonable doubt of the crime of rape.
We now come to the proper penalty. Under Article 335 (now Article 266-B) of the
Revised Penal Code, whenever the crime of rape is committed with the use of a deadly weapon
or by two or more persons, the penalty shall be reclusion perpetuato death.
According to the trial court:
The rape charge was committed in the victims dwelling at nighttime. Dwelling and nighttime
are aggravating circumstances in rape (People vs. Padilla 242 SCRA 629). On the other hand,
the aggravating circumstance of nighttime cannot be appreciated in the robbery charge because
of (sic) the notion to commit the crime was conceived only shortly when the rape was committed
at darkness. However, the aggravating circumstance of dwelling is a different story and should
be considered. Dwelling is aggravating in robbery with violence against or intimidation of
person because this class of robbery can be committed without the necessity of trespassing the
sanctity of the offended partys house. Entrance into the dwelling house of the offended party is
not an element of the offense (People vs. Cabato 160 SCRA 98). Finally, for sexually assaulting
a married woman thereby grievously wronged (sic) the institution of marriage, the imposition
of exemplary damages by way of example to deter others from committing the crime is just (sic)
warranted.
(RTC Decision, pp. 5-6.)
Considering the presence of the aggravating circumstances of nighttime and dwelling, the
trial court imposed the supreme penalty of death on accused-appellant for the crime of rape.
However, a cursory examination of the Information filed against accused-appellant would
show that the aggravating circumstances of nighttime and dwelling are not specified
therein. Now, at the time the trial court rendered its decision, the non-allegation of generic
aggravating circumstances in the information was immaterial, since the rule then prevailing was
that generic aggravating circumstances duly proven in the course of the trial could be taken into
account by the trial court in determining the proper imposable penalty even if such
circumstances were not alleged in the information (People vs. Deberto, 205 SCRA 291 [1992]).
Nonetheless, it is to be noted that the appreciation by the trial court of the aggravating
circumstances of dwelling and nighttime, despite the non-allegation thereof in the Information,
resulted in the imposition of the supreme penalty of death upon accused-appellant. In People v.
Gallego (G.R. No. 130603, August 15, 2000), We had occasion to rule, thus:
In People v. Albert (251 SCRA 136 [1995]), we admonished courts to proceed with more care
where the possible punishment is in its severest form death because the execution of such a
sentence is irrevocable. Any decision authorizing the State to take life must be as error-free as
possible, hence it is the bounden duty of the Court to exercise extreme caution in reviewing the
parties evidence. Safeguards designed to reduce to a minimum, if not eliminate, the grain of
human fault ought not to be ignored in a case involving the imposition of capital punishment for
an erroneous conviction will leave a lasting stain in our escutcheon of justice. The accused must
thence be afforded every opportunity to present his defense on an aggravating circumstance that
would spell the difference between life and death in order for the Court to properly exercise
extreme caution in reviewing the parties evidence. This, the accused can do only if he is
appraised of the aggravating circumstance raising the penalty imposable upon him to
death. Such aggravating circumstance must be alleged in the information, otherwise the Court
cannot appreciate it. The death sentence being irrevocable, we cannot allow the decision to take
away life to hinge on the inadvertence or keenness of the accused in predicting what aggravating
circumstance will be appreciated against him.
In a series of cases under the regime of Rep. Act No. 7659, the Court did not appreciate the
aggravating circumstance of dwelling which would have increased the imposable penalty to
death when such circumstance was not alleged in the information. In People v. Gaspar, et
al. (318 SCRA 649 [1999]), the Court found that apart from treachery, dwelling also attended
the killing of the victim. Despite this finding and the absence of any mitigating circumstance,
the Court nonetheless did not appreciate dwelling and imposed the penalty of reclusion
perpetua and not the greater penalty of death. Hence, in the case at bar, considering that the
aggravating circumstance of dwelling was not alleged in the information, we cannot appreciate
it and raise the penalty imposed upon Raul Gallego from reclusion perpetua to death.
(Italics supplied.)
The principle above-enunciated is applicable to the case at bar. Consequently, we hold
that due to their non-allegation in the Information for rape filed against accused-appellant, the
aggravating circumstances of nighttime and dwelling cannot be considered in raising the penalty
imposable upon accused-appellant from reclusion perpetua to death.
Parenthetically, the above rule is inapplicable for the crime of robbery committed by
accused-appellant, the same not involving the imposition of the death penalty. For said crime,
what remains applicable is the old rule that generic aggravating circumstances if duly proven in
the course of the trial could be taken into account by the trial court in determining the proper
imposable penalty, even if such circumstances were not alleged in the Information. Thus, for
the crime of robbery, the trial court correctly imposed an indeterminate penalty of six (6) months
of arresto mayor, as minimum, to nine (9) years of prision mayor, as maximum.
It is to be noted carefully that the rule on generic aggravating circumstances has now been
formalized in the Revised Rules of Criminal Procedure, which took effect on December 1,
2000. Section 8 of Rule 110 now provide that:
Sec. 8. Designation of the offense. The complaint or information shall state the designation of
the offense given by the statute, aver the acts or omissions constituting the offense, and specify
its qualifying and aggravating circumstances. If there is no designation of the offense, reference
shall be made to the section or subsection of the statute punishing it.
(Italics supplied.)
Likewise, Section 9 of the same Rule provides:
4
Sec. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense suffered. Moreover, the fact that the victim was raped inside her house in the presence of her
and the qualifying and aggravating circumstances must be stated in ordinary and concise children justifies the trial courts imposition of exemplary damages.
language and not necessarily in the language used in the statute but in terms sufficient to enable
a person of common understanding to know what offense is being charged as well as its WHEREFORE, premises considered, the decision under review finding accused-
qualifying and aggravating circumstances and for the court to pronounce judgment. appellant EDGAR LEGASPI y LIBAO guilty beyond reasonable doubt of the crime of rape in
Criminal Case No. 17640-MN is AFFIRMED with the MODIFICATION that he is sentenced
to suffer the reduced penalty of reclusion perpetua and to pay Honorata Ong the sum of Fifty
(Italics supplied.) Thousand pesos as civil indemnity, another Fifty Thousand Pesos (P50,000.00) as moral
damages and Thirty Thousand Pesos (P30,000.00) as exemplary damages.
Sections 8 and 9 were discussed by this Court En Banc on June 20, 2000. According to
the minutes of said session: No special pronouncement is made as to costs.
SO ORDERED.
Justice Puno then invited the attention of the Court to Sections 8 and 9 of Rule 110. He explained
that the proposal requiring the allegation of qualifying circumstances in the information reflects
the recent decisions of the Court, especially in heinous crimes. However, the Court concerned
itself with the proposed requirement of likewise alleging aggravating circumstances in the
information. Justice Panganiban raised the question of what to do with an aggravating
circumstance which was not alleged but was proved and not objected to during trial. Justice
Melo answered that it cannot be used to increase the penalty if it was not alleged even if
proved. Justice Puno explained that the proposal strengthens the right to due process of an
accused, part of which is to be shielded from surprises.

Chief Justice Davide and Justice Panganiban agreed and emphasized that the presence of
aggravating circumstances can make the difference between life and death where the imposable
penalty is reclusion temporal maximum to death or reclusion perpetua to death. Justice
Panganiban added that the prosecutors will now be compelled to prepare well-worded
informations.

To make sure that the circumstances that need to be alleged are not missed out in the
information, Justice Mendoza suggested that the Court can prescribe an updated form in the
Rules of Court.

(Emphasis supplied.)

Thus, the Rules now require qualifying as well as aggravating circumstances to be

expressly and specifically alleged in the Complaint or Information, otherwise the same will not
be considered by the court even if proved during the trial. And this principle is applicable in all
criminal cases, not only in cases were the aggravating circumstance would increase the penalty
to death. With this, the Court gives fair warning to prosecutors that henceforth, they must
prepare well-crafted informations that allege the circumstances qualifying and aggravating the
crimes charged, otherwise the same will not be considered by the court in determining the proper
imposable penalty.
The Court further notes that while the trial court awarded the victim the sum of P50,000.00
as moral damages and P30,000.00 as exemplary damages, it failed to award civil indemnity to
the victim. Prevailing jurisprudence holds that in rape cases, the victim should be awarded
P50,000.00 as civil indemnity and another P50,000.00 as moral damages for the injury evidently

5
G.R. No. L-38297 October 23, 1982
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARIO CAPALAC, defendant-appellant.
FERNANDO, C.J.:
It was not unexpected, considering the close family ties so traditional among Filipinos. that the
stabbing, apparently without provocation, of one Moises Capalac by Jimmy Magaso, would be
attended with serious, if not tragic, consequences. It happened on September 20, 1970 at around
2:00 o'clock in the afternoon, the scene of the gory incident being a duly licensed cockpit in the
City of Iligan. The aggressor, attempting to escape, was confronted by two brothers of Moises,
Jesus Capalac, originally included in the information but now deceased, and appellant Mario
Capalac. The attempt of Magaso to board a jeep was unsuccessful, he having alighted after two
shots were fired in succession. Knowing that he was completely at the mercy of the two brothers,
he raised his hands as a sign of surrender, but they were not to be appeased. He was pistol-
whipped by appellant Mario Capalac, being dealt several blows on the head and the face. After
he had fallen to the ground, Jesus Capalac stabbed the deceased on the chest three or tour times.
He was brought to the hospital where he died, the cause, according to the coroner's report, being
"hemorrhagic shock due to a wound of the heart."
The above facts are not open to dispute, the decision of the lower court and the briefs for both
appellant and appellee being substantially in agreement. After trial duly held, Mario Capalac
was convicted of murder. The lower court found that the crime was committed with evident
premeditation and treachery. The lower court also held that appellant took advantage of his
position as a police officer and employed means or brought about circumstances which added
ignominy to the natural effects of his act. It sentenced him to suffer the death penalty. Hence,
this case is before this Tribunal for automatic review. 1
The brief for the appellant prays for the reversal of the judgment and assigns four errors as
having been committed by the lower court. The first error speaks of the absence of conspiracy.
The second and the third deny the existence of the qualifying as well as the aggravating
circumstances, Lastly, the brief imputes as error of the lower court what it referred to as
"discarding the ante mortem statement of the victim." As will be shown, there is no basis for
reversal. The judgment, however, calls for modification. Murder was committed, the qualifying
circumstance of alevosia being quite evident. The aggravating circumstances, however, were
not proved. Moreover, the lower court did not take into consideration the existence of the
mitigating circumstance of the immediate vindication of a grave offense. Hence, the imposition
of the death penalty was not warranted.
1. The circumstances indicative of the manner by which the two brothers, as well as their two
companions, who apparently were not apprehended as they were not included in the information,
attacked the hapless victim, would suffice to show conspiracy. They apparently had one purpose
in mind, to avenge the stabbing of Moises Capalac. Such a reaction, as noted at the outset, is
quite understandable. It was not to be expected that they would even bother to inquire why their
brother was stabbed. It was enough that it was done. They were impelled by a common purpose.
They acted in concert. There is sufficient basis for the finding of conspiracy then. As far back
as United States v. Magcamot, 2 a 1909 decision, Justice Mapa stressed as the essential element
for conspiracy to exist the "concurrence of wills" and "unity of action and purpose." 3 A recent
decision is partial to the phrase, "tacit and spontaneous coordination," in the assault. 4 A careful
analysis of the evidence by the lower court can yield no other conclusion but that conspiracy
was duly proved.
2. crime was one of murder, the qualifying circumstance of treachery being present. The specific
language of the Revised 'Penal Code calls for application: "There is treachery when the offender
commits any of the crimes against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make. 5 Magaso's situation was
hopeless. Any defense he could have put up would be futile and unavailing. His hands were
raised in surrender. That notwithstanding, he was pistol-whipped. When lying prostrate on the
ground, he was stabbed. It must be remembered that, according to the testimonial evidence,
there were two other persons assisting the brothers Capalac. If they were not included in the
information, the explanation would appear to be that they managed to elude capture. There was
no risk, therefore, to the aggressors, no hope for the victim. 6 The trial court committed no error
then in appreciating the circumstance of treachery as being present.
3. The lower court erred, however, in finding the aggravating circumstances of evident
premeditation, of means being employed or circumstances brought about to add ignominy to the
natural effects of the act, and of the crime being committed with the offender taking advantage
of his official position as having attended the commission of the crime. As early as 1903, Justice
Mapa, in United States v. Alvares, 7 made clear that an aggravating circumstance must be "as
fully proven as the crime itself. 8 He added: "Without clear and evident proof of their presence,
the penalty fixed by the law for the punishment of the crime cannot be increased. 9 Moreover,
insofar as evident premeditation is concerned, there is this relevant excerpt from the same
opinion: "The record contains no evidence showing that the defendant had, prior to the moment
of its execution, resolved to commit the crime, nor is there proof that this resolution was the
result of meditation, calculation and persistence. 10 In People v. Mendova, 11 it was emphasized
that it should not be "premeditation" merely; it is "evident" premeditation. 12 A recent
decision, People v. Anin, 13 ruled that the perpetration of a criminal act "evidently made in the
heat of anger" did not call for a finding that there was evident premeditation. 14 What is required
is that the offense was "the result of cool and serene reflection." 15 What was done by the
brothers of Capala, cannot be categorized as falling within the norm of means being employed
or circumstances being brought about to add ignominy to the natural effects of the act. It is well
to stress that they were prompted by their desire to avenge their brother, They went after
Magaso, the victim. They assaulted him, relying on the weapons they carried with them. Jesus
stabbed him and appellant Mario pistol-whipped him. They did what they felt they had to do to
redress a grievance. It cannot be said, therefore, that they deliberately employed means to add
ignominy to the natural effects of the act. It is quite apparent that all they were interested in was
to assure that there be retribution for what was done to their brother. The mere fact that appellant
Mario Capalac is a member of the police force certainly did not of itself justify that the
aggravating circumstance of advantage being taken by the offender of his public position be
considered as present. He acted like a brother, instinctively reacting to what was undoubtedly a
6
vicious assault on his kin that could cause the death of a loved one. It would be an affront to
reason to state that at a time like that and reacting as he did, he purposely relied on his being a
policeman to commit the act. He pistol-whipped the deceased because he had his pistol with
him. It came in handy and he acted accordingly. 16 That he was a policeman is of no relevance
in assessing his criminal responsibility.

4. There is another aspect of the decision that calls for correction. The mitigating circumstance
of immediate vindication of a grave offense was not considered. There is no ambiguity in the
language of the Revised Penal Code: "That the act was committed in the immediate vindication
of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants,
legitimate, natural, or adopted brothers or sisters, or relatives by affinity within the same
degree. 17 What was done was an immediate vindication of the stabbing perpetrated by Magaso
on appellant's brother Moises. For relatively less serious crimes than this, this Court has taken
into consideration this mitigating circumstance. 18 Certainly it seems probable that the reason
why, the lower court failed to do so was the fact that appellant was a member of the police force.
That is not conclusive. What is decisive is the fact that the brothers Capalac, responsive to what
is a traditional norm of conduct, reacted in a manner which for them was necessary under the
circumstances. That was a fulfillment of what family honor and affection require. The aggressor
who did them wrong should not go unpunished. This is not to justify what was done. It offers
though an explanation. At the same time, the rule of law, which frowns on an individual taking
matters into his own hands, requires that every circumstance in favor of an accused should not
be ignored. That is to render justice according to law. This mitigating circumstance calls for
application.

5. There is no point in discussing the fourth assigned error, namely, that the ante mortem
statement of the victim should have been given weight by the Court. Such exhibit, 19 even if
considered a dying declaration, would not call for a reversal. It consisted of seven questions and
answers. The answers to the second and the third questions referred to what happened to Magaso
and who was responsible. His answer was that he was stabbed, and that it was done by Jesus
Capalac. The other questions dealt with when and where it happened as well as whether or not
he was in possession of his senses, and a rather unnecessary question as to whether he was
aggrieved.<re||an1w> This Court, as was the lower court, is aware that the stabbing was
by Jesus Capalac, not by appellant. It does not thereby mean that no criminal liability was
incurred by him. In the light of the foregoing, and following the case of People v. Rosel 20 where
the murder was qualified by the circumstance of treachery and there was likewise considered
the mitigating circumstance of immediate vindication of a grave offense, the penalty imposed
on the accused should be "ten years and one day of prision mayor to seventeen years, four
months and one day of reclusion temporal." 21

WHEREFORE, the accused is found guilty of murder, but the decision of the lower court is
hereby modified. The accused is sentenced to ten years and one day of prision mayor minimum
to seventeen years, four months and one day of reclusion temporal maximum. In all other
respects, the lower court decision stands affirmed.

7

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CIC LORETO GAPASIN, PC NICANOR SALUDARES, LORENZO
SORIANO, alias "Olit", AMOR SALUDARES, FRANK SALUDARES, BEL SALUDARES,
and NICK SALUDARES, accused, CIC LORETO GAPASIN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Silvestre Br. Bello for accused-appellant.
QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court, Branch XVI, Isabela in
Criminal Case No. IV-781, finding appellant guilty beyond reasonable doubt of murder
qualified by treachery, with the attendance of the mitigating circumstance of voluntary
surrender, and the aggravating circumstances of taking advantage of public position and
evident premeditation. The trial court sentenced him to suffer the penalty of reclusion
perpetua and to pay to the heirs of the late Jerry Calpito, Sr., the sum of P88,596.00 as actual
or compensatory damages; P30,000.00 as death indemnity; P20,000.00 as moral damages;
P30,000.00 as exemplary damages; and the costs.
I of the accused; (b) the issuance of the warrants of arrest for all the accused except for Nicanor
The information in Criminal Case No. IV-781 reads as follows:
That on or about the 6th day of October, 1979, at Barangay San Jose,
municipality of Roxas, province of Isabela, Philippines, and within the
jurisdiction of this Honorable Court, the accused CIC LORETO
GAPASIN, PC NICANOR SALUDARES, LORENZO SORIANO alias
Olit, AMOR SALUDARES, FRANK SALUDARES, BEL
SALUDARES, and NICK SALUDARES, conspiring and confederating
together and all helping one another, with evident premeditation and
treachery, did then and there wilfully, unlawfully, criminally and
feloniously, with intent to kill, attack and shoot Jerry Calpito, with an
Armalite rifle SN No. 3267485
Cal. 5.56 duly issued to the accused PC soldier under Memorandum
Receipt dated September 17, 1979 by the 118th PC Company, inflicting
multiple gunshot wounds on the body of the latter, step and kick (sic) the
victim several times, causing his instantaneous death due to hemorrhage
secondary to gunshot wounds, to the damage and prejudice of the heirs of
the deceased Jerry Calpito in the amount of P12,000.00, Philippine
Currency.
That the crime was committed with the aggravating circumstances of (1)
ignominy, the accused having stepped and kicked the body of the
deceased; (2) abuse of superior strength, and (3) taking advantage of
public position, with respect to the accused CIC Loreto Gapasin who is a
PC soldier" (Rollo, pp. 35-36).
A warrant for the arrest of all the accused was issued on December 14, 1980. However, as of
January 10, 1980, only Nicanor Saludares and appellant had been arrested. On January 17,
1980, the trial court granted the petition for bail of the two accused and fixed the same at
P20,000.00 each. Having posted bail, Nicanor Saludares was ordered released on January 22,
1980. On the
other hand, appellant was ordered by the court to remain in the custody of
Capt. Alexander M. Bellen, commanding officer of the 118th Constabulary Company, in
Roxas, Isabela.
On February 4, 1980, Frank, Bel and Amor, all surnamed Saludares, were arrested. Lorenzo
Soriano, alias Olit, was arrested the following day. They were all allowed to post bail bonds in
the amount of P20,000.00 each and thereafter they were released from custody.
On the strength of LOI No. 947, as amended by LOI No. 1011, vesting jurisdiction on the
Military Tribunals of all crimes against persons and property committed with the use of
unlicensed firearms, the provincial fiscal filed a motion praying that Criminal Case No. IV-
781 be transferred to the Military Tribunal and that the bail bonds posted be cancelled. The
prosecution reiterated the motion in a manifestation dated August 21, 1980.
Accordingly, on August 27, 1980, the trial court ordered: (a) the cancellation of the bail bonds
Saludares, who was reported to have died; (c) the turn over of appellant to the Provincial
Warden of Isabela as he was not entitled to technical rearrest under Executive Order No. 106;
(d) the turn over to the said Provincial Warden of all the other accused upon their rearrest; and
(e) thereafter, the turn over of the case and the accused to the Military Tribunal thru the
Provincial Commander of the PC/INP, Ilagan, Isabela for further proceedings.
Pursuant to the endorsement dated September 19, 1980 of Lt. Col. Oscar M. Florendo, Isabela
Provincial Commander, appellant, together with Lorenzo Soriano, Amor Saludares and Bel
Saludares, was rearrested; while Nick and Frank Saludares remained at-large. On September
29, 1980, the trial court ordered the dismissal of the case against Nicanor Saludares on account
of his death on June 7, 1980.
The accused, however, filed a motion for the reconsideration of the Order of August 27, 1980
on the grounds that the case was not covered by LOI
No. 947, the crime having been committed on October 6, 1979 or several days before the
issuance of said LOI. The trial court denied their motion.
By virtue of General Order No. 69 dated January 12, 1981, the records of the case were
transferred back to the trial court from the Military Tribunal. On April 1, 1981, the prosecution
moved for the recommitment of the accused to the provincial jail. The defense opposed the
8
motion fearing retaliation from a provincial jail guard, who was a relative of the victim. On
May 12, 1981, the trial court denied the motion and set the arraignment of the accused on June
1, 1981.
On May 18, 1981, Col. Florendo informed the trial court that Bel and Amor Saludares have
escaped from the Rehabilitation Center of the Provincial Command on April 10, 1981.
On May 29, 1981, the provincial fiscal moved for the reconsideration of the Order of May 12,
1981, alleging that the accused were not actually detained at the PC Headquarters and that,
except for appellant, the accused have absconded. Hence, to prevent a miscarriage of justice,
the provincial fiscal prayed for the recommitment of accused Soriano and appellant at the
provincial jail and for the issuance of the warrants of arrest for Amor, Bel and Frank
Saludares.
The trial court granted the motion and issued warrants of arrest. Despite diligent efforts,
however, the other accused were not rearrested and hence, trial proceeded against accused
Soriano and appellant only. On June 1, 1981, they both pleaded not guilty.
Two years later, on June 1, 1983, the trial court denied appellant's application for bail but
granted that of accused Soriano, whose bail bond was fixed at P30,000.00. Being so persistent,
appellant filed a second motion for bail, which was denied by the trial court on June 1, 1984.
He filed a third motion to fix bail, which was likewise denied.
Relying on the provisions of Section 4 of P.D. No. 1850, appellant filed an urgent motion
praying that he be transferred to the custody of Col. Alfonso M. Mesa, then Provincial
Commander of Isabela. The trial court denied the motion. His motion for reconsideration
having been denied, appellant filed a petition for certiorari before the then Intermediate
Appellate Court, alleging that the trial court acted with grave abuse of discretion in refusing to
apply Section 4 of P.D. No. 1850. The appellate court granted the petition and ordered the
immediate transfer of appellant to the custody of his military commander.
Meanwhile, accused Frank Saludares was arrested and he entered a plea of not guilty at his
arraignment. He was later allowed to post bail. Since Soriano and Frank Saludares were both
out on bail, the defense opted to present evidence on behalf of appellant only and to submit the
case for decision as soon as possible. Thus, after almost six years, trial on the case ensued.
II
According to prosecution witness Alberto Carrido, he and Rodrigo Ballad left the house of
Enteng Teppang at about 2:00 P.M. of October 6, 1979 after attending the "pamisa" for the
deceased father of Teppang. Jerry Calpito followed them. While they were walking along the
barangay road, Calpito was shot by appellant with an armalite rifle. When Calpito fell on the
ground, appellant fired more shots at him. Thereafter, accused Amor Saludares planted a .22
caliber revolver on the left hand of Calpito. Upon hearing the shots, Faustina Calpito ran to
succor her fallen husband.
Accused Nicanor Saludares pointed his gun at Faustina while accused Soriano fired his gun
upwards. Saludares warned that he would kill any relative of Jerry Calpito who would come
near him. Faustina and the other relatives of the victim scampered away as the Saludares'
group chased them.
The body of Calpito was autopsied by Dr. Bernardo Layugan, who found that the victim
sustained four bullet wounds: (1) on the right lateral side of the arm fracturing the humerus;
(2) on the right lateral side of the thorax between the 7th and 8th ribs with exit wound at the
sternum; (3) on the left side of the thorax, anterior, between the 5th and 6th ribs; and (4) on the
right fronto-parietal portion of the head "severing the skull and brain tissues" (Exh. "F"). Dr.
Layugan opined that the victim was in a standing position when he was shot by someone
positioned at his right.
Appellant invoked self-defense. He testified that he was issued a mission order on September
23, 1979 to investigate a report regarding the presence of unidentified armed men in Barrio
San Jose, Roxas, Isabela. The following day, he was instructed by Sgt. Dominador Ignacio to
get in touch with Nicanor Saludares who may be able to give him information on the identities
of the persons with unlicensed firearms in the place. When appellant met Nicanor Saludares
on September 29, 1979, he was informed that Jerry Calpito had an unlicensed firearm.
On October 5, 1979, Nicanor Saludares went to the P.C. Headquarters in Roxas and told
appellant that it would be best for him to see Jerry Calpito the following day as a relative of
the latter would be buried. The next day, appellant went to Barangay San Jose, arriving there
at 12 noon. Instead of going to the cemetery, he went to the house of Nicanor Saludares. From
there, they went to the house of Enteng Teppang to attend the "pamisa." While they were
having lunch, Nick Saludares advised appellant against confronting Calpito because it would
create a disturbance at the "pamisa." He also told appellant that Calpito would surely pass his
(Saludares) house on his way home.
Appellant and Nicanor Saludares positioned themselves inside the yard of the latter. When
appellant saw Calpito, he went out of the yard into the barangay road. When Calpito was about
three meters away from him, appellant asked him what was bulging in his waist. Instead of
answering, Calpito took a step backward, drew his firearm from the waist and fired twice at
appellant. He missed because appellant dropped to the ground simultaneously firing his
armalite.
After fifteen minutes, the police arrived and took the body of the victim to the morgue.
Appellant was brought to the P.C. Headquarters in Roxas, where he was investigated.
III
The appeal hinges primarily on the credibility of the prosecution witnesses. Appellant claims
that the prosecution witnesses, all of them being relatives of the victim, were naturally biased
against him.
9
This Court has time and again reiterated the principle that it will not interfere with the findings
of the trial court on the issue of credibility of witnesses and their testimonies unless the trial
court has plainly overlooked undisputed facts of substance and value which would have
altered the result of the case (People v. Matrimonio, 215 SCRA 613 [1992]). Findings of the
trial court are generally accorded great respect by an appellate tribunal for the latter can only
read in cold print the testimonies of the witnesses.
In the trial before the lower court, the eye-witnesses testified in their local dialect and their
testimonies had to be translated to English. In the process of converting into written form the
testimonies of the witnesses, not only the fine nuances but a world of meaning apparent only
to the trial judge, may escape the reader of the translated words (People v. Baslot, 209 SCRA
537 [1992]).
The fact that the prosecution witnesses are relatives of the victim does not necessarily indicate
that they were biased as to impair their credibility. In the absence of proof of ill motive on the
part of witnesses, relationship between them and the victim does not undermine their
credibility. On the contrary, it would be unnatural for persons such as the relatives of the
victim who themselves seek justice to commit the injustice by imputing the crime on persons
other than those who are actually responsible (People v. De Paz, 212 SCRA 56 [1992]).
Appellant's claim of self-defense is belied by the finding of the trial court that the victim was
shot by someone who was standing on his right side. Appellant's version that he was in front
of the victim when the latter fired a shot at him and that he retaliated while dropping on the
ground, crumbles in the face of the physical evidence that the victim sustained two gunshot
wounds which entered the right side of his body and a gunshot wound on the right side of his
head. The nature and number of wounds inflicted by the appellant disprove the plea of self-
defense (People v. Bigcas, 211 SCRA 631 [1992]).
Had appellant and Nicanor Saludares, Sr. not intended to harm the victim, they could have
simply apprehended him. Or, having verified that Calpito possessed an unlicensed firearm,
appellant could have reported the matter to his superiors so that warrants for Calpito's arrest
and the seizure of his unlicensed firearm could have been obtained.
Appellant contended that the crime committed is homicide. The trial court correctly ruled that
the crime of murder under Article 248 of the Revised Penal Code was indeed committed.
Treachery attended the commission of the crime. The two conditions to constitute treachery
were present in the case at bench, to wit: (a) the employment of means of execution that gives
the person who is attacked no opportunity to defend himself or to retaliate; and (b) the means
of execution were deliberately or consciously adopted (People v. Narit, 197 SCRA 334
[1991]).
Appellant deliberately executed the act in such a way that his quarry was unaware and
helpless. This can be gleaned from his act of waiting for the victim behind the hollow-block
fence of Nicanor Saludares and shooting the victim from his right side.
Evident premeditation was indubitably proven by the evidence showing that the execution of
the criminal case was preceded by cool thought and reflection. Appellant's resolution to carry
out the criminal intent during the space of time sufficient to arrive at a clear judgment was
shown (People v. Castor, 216 SCRA 410 [1992]).
In view of the presence of treachery which qualified the killing as murder, the evident
premeditation should be considered only as a generic aggravating circumstance (People v.
Fabros, 214 SCRA 694 [1992]).
The information alleged three other generic aggravating circumstances: ignominy, abuse of
superior strength and taking advantage of public position. The trial court correctly ruled out
ignominy on the strength of the autopsy conducted by the doctor who failed to find any other
injuries such as bruises and contusions which may indicate that the victim was kicked by his
assailants. It also correctly held that treachery absorbed abuse of superior strength (People v.
Moral, 132 SCRA 474 [1984]).
The trial court properly appreciated taking advantage of public position as an aggravating
circumstance. Appellant, a member of the Philippine Constabulary, committed the crime with
an armalite which was issued to him when he received the mission order (People v. Madrid, 88
Phil. 1 [1951]).
Voluntary surrender may be considered in appellant's favor but this is offset by the
aggravating circumstance of taking advantage of public position. Therefore, only the generic
aggravating circumstance of evident premeditation may be appreciated against appellant. As
such, the correct penalty would have been death in accordance with Articles 248 and 64(3) of
the Revised Penal Code Were it not for the fact that such penalty is constitutionally abhorrent.
Hence, the proper penalty is reclusion perpetua.
The trial court correctly exercised its discretion in imposing moral, compensatory and
exemplary damages (People v. Rabanes, 208 SCRA 768 [1992]; People v. Quilaton, 205
SCRA 279 [1992]).
WHEREFORE, the decision appealed from is AFFIRMED.
SO ORDERED.
10
G.R. Nos. L-35123-24 July 25, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUDY TIONGSON, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Felipe L. Gozon for defendant-appellant.
CONCEPCION JR., J.:
At about 5:30 o'clock in the afternoon of October 26, 1971, the accused Rudy Tiongson
escaped from the Municipal Jail of Bulalacao, Oriental Mindoro, together with George de la
Cruz and Rolando Santiago, where they were detained under the charge of Attempted
Homicide. While in the act of escaping, the said Rudy Tiongson killed Pat. Zosimo Gelera, a
member of the police force of Bulalacao, Oriental Mindoro, who was guarding the said
accused, and PC Constable Aurelio Canela of the PC Detachment stationed in Bulalacao,
Oriental Mindoro, who went in pursuit of them.
By reason thereof, Rudy Tiongson was charged with Murder, in two separate informations,
committed as follows:
1. Crim. Case No. R-DJC-243:
That on the 26th day of October, 1971, at 6:00 o'clock in the evening,
more or less, at Rizal, of the Municipality of Bulalacao, Province of
Oriental Mindoro, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, RUDY TIONGSON,
conspiring and confederating with Rolando Santiago and George de la
Cruz, who are both at large by reason of their forced escape, and with
treachery, wilfully, unlawfully and feloniously waited in ambush, waylaid
and shot one C2C AURELIO M. CANELA, a member of the local
Philippine Constabulary Command, while the latter was in hot pursuit of
said accused who had earlier escaped from custody, thus fatefully
resulting to the instantaneous death of the victim.
That the commission of the offense was qualified by the circumstance of
treachery, and aggravated by the circumstances of evident premeditation,
in contempt of or with ingult to the public authorities, nocturnity,
committed in an uninhabited place and with abuse of superior strength.
2. Crim. Case No.R-DJC-244
That on the 26th day of October, 1971, at 5:30 o'clock in the afternoon,
more or less, inside of the Municipal Building, of the Municipality of
Bulalacao, Province of Oriental Mindoro, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, RUDY
TIONGSON, conspiring and confederating with George de la Cruz and
Rolando Santiago, and under the pretext that they would answer the call of
nature, convinced Police First Class Patrolman Zosimo Gelera to allow
them to go out from their being confined and detained in the Municipal
Jail of same Municipality by virtue of a previous offense, and while still
hardly out of said jail ganged up said Zosimo Gelera, took the latter's
service pistol and with it, with treachery, shot point blank said police
officer at his right cheek, tragically resulting to the victim's instantaneous
death and thereafter, made good their escape.
That the offense is qualified by the circumstance of treachery, and
aggravated by the circumstances of evident premeditation, in contempt of
or with insult to the public authorities and with abuse of superior strength.
Upon arraignment, the said accused, assisted by counsel de oficio, pleaded guilty to both
informations. The trial court, however, did not render judgment outright, but ordered the
prosecution to present its evidence, after which, it sentenced the said accused to suffer the
death penalty in each case, to indemnify the heirs of the victims in the amount of P12,000.00
and to pay the costs.
The death penalty having been imposed, the cases are now before the Court for mandatory
review.
1. Able counsel appointed for the accused first claims that the acceptance of the plea of guilty
was precipitate since the trial judge did not ascertain from the accused that the latter was
aware of the consequences of his plea of guilty and that he fully understood the significance
and meaning thereof. Wherefore, he prays that the cases be returned to the court below for
proper proceedings.
The norm that should be followed where a plea of guilty is entered by the defendant,
especially in cases where the capital penalty may be imposed, is that the court should be sure
that defendant fully understands the nature of the charges preferred against him and the
character of the punishment provided by law before it is imposed. For this reason, the Court
requires that in every case under a plea of guilty, where the penalty may be death, the trial
court should call witnesses for the purpose of establishing the guilt and degree of culpability
of the defendant and not only to satisfy the trial judge but to aid the Supreme Court in
determining whether accuse understood and comprehended the meaning, full significance and
consequences of his plea. 1
In the instant case, the trial judge required the taking of testimony as to the circumstances
under which the crime was committed before passing judgment so that the resulting verdict
cannot in any way be branded as deficient.
11
2. Counsel also contends that the evidence presented by the prosecution does not warrant, nor
support, the finding that the killing of Pat. Zosimo Gelera was qualified by treachery since the
prosecution failed to present any eyewitness who directly saw the killing of Pat. Gelera. The
Solicitor General agrees with counsel for the accused.
According to the Revised Penal Code, 2 "there is treachery when the offender commits any of
the crimes against the person, employing means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to himself arising from
the defense which the offended party might make."
In the instant case, it does not appear how and in what position the victim was when he was
killed so that it cannot be said for certain that the accused had adopted a mode or means of
attack tending directly to insure or facilitate the commission of the offense without risk to
himself arising from the defense or retaliation which the victim might put up.
Pat. Nicandro Garcia of the Bulalacao police force merely declared that he was in his house,
about 15 meters away from the municipal building when the accused Rudy Tiongson and his
companions escaped from prison , 3 and he did not see the accused shoot Pat. Gelera. 4
Police Chief Edwardo Borwangga did not also see the accused Rudy Tiongson shoot Pat.
Gelera. He declared that Pat. Gelera was already dead when he arrived at the municipal
building in the afternoon of October 26, 1971. 5
PC Sgt. Teotimo Saway, who led the pursuit of the escaped detainees, declared that he was in
one of the, stores in front of the Bulalacao municipal building, about 60 meters away, when he
heard two (2) gunshots coming from the direction of the municipal building, 6 and Pat. Gelera
was already dead when he saw him. 7
The circumstances qualifying or aggravating the act of killing a human being must be proved
in an evident and incontestable manner, mere presumptions or deductions from hypothetical
facts not being sufficient to consider them justified. Thus, in the case of U.S. vs. Barbosa, 8 the
Court said that "since the case does not furnish any evidence to the effect that Barbosa had
formed the deliberate, premiditated intention to take the life of his wife, and there was no
eyewitness as to the manner in which the deceased was strangled, consequently there is no
provision of law under which we can hold that the crime was committed with treachery, and it
must be borne in mind that the qualifying circumstances of a crime in its commission, in order
to be considered, must be established by competent evidence as well as the crime to which
they relate.
In the case of U.S. vs. Perdon, 9 the Court said that since "neither this witness nor any other
gives any particulars whatever as to the manner in which the aggression was made, nor how
the act which resulted in the death of the deceased began and developed; and this being the
case, it can not be established from mere suppositions, drawn from circumstances prior to the
very moment of the aggression, that the accused had employed means tending to insure its
success without any danger to his person, which constitutes treachery (alevosia) as defined by
the Penal Code. The circumstances specifying an offense or aggravating the penalty thereof
must be proved as conclusively as the act itself, mere suppositions or presumptions being
insufficient to establish their presence according to law. No matter how truthful these
suppositions or presumptions may seem, they must not and can not produce the effect of
aggravating the condition of the defendant."
The Court, in U. S. vs. Asilo, 10 I also ruled that since it was not established "that the
aggressors employed any means which might have rendered all defenses impossible for the
deceased, inasmuch as no one witnessed the very act of aggression, there is not sufficient
ground to establish the conclusion that the attempt which deprived Anastacio Claridad of his
life was made with treachery (alevosia). The treachery can in no way be presumed, but must
be fully proven in order to be appreciated for the effects of the Penal Code."
In People vs. Ramiscal, 11 the Court rejected the claim that treachery was present because "at
the time that the accused inflicted the wound upon the deceased there was not a single
eyewitness, for when the witnesses Umali and Chua Chuan entered the store the wound had
already been inflicted."
The Solicitor General also agreed with the defendant's counsel that treachery is not present in
the killing of PC Constable Aurelio M. Canela since the deceased was actually warned by PC
Sgt. Saway not to remain standing but seek cover because of the known presence of the
accused in the vicinity, but that the said deceased disregarded the warning.The pertinent
portion of the testimony of PC Sgt. Saway reads, as follows:
FISCAL SADICON:
Q Were you alone while you were pursuing those
three escaping prisoners?
A No, sir.
Q Who was your companion if there was any?
A Pat. Nicandro Garcia, sir.
Q While you were pursuing these prisoners what
happened next?
A When we were already along the mountain then
watching for the appearance of the three escapees, I
saw C2C Aurelio Canela, sir.
Q What does this C2C mean?
A Constable Second Class, sir.
12
 Q After seeing C2C Aurelio Canela approaching while
you were waiting for the three escapees what did you
do?
A I signaled him to lie flat and indicated to him where
the escapees seem to be moving, sir.
Q Then what did C2C Canela do upon your signal?
A He continued walking towards me and at the precise
moment I signaled him again to lie down because the
escapees-prisoners were there, sir.
Q After that what happened?
A He did not heed my instruction and because of that I
approached him and tried to hold him instructing him
to lie down but on that precise moment two shots were
fired, sir.
Q From what direction those two shots came from?
A From my left approximately 4 meters away from
me, sir,
Q What happened after hearing those two shots?
A I saw Canela already hit and shouting "aruy", sir. 12
Considering that PC Constable Canela had been sufficiently forewarned of the presence of the
appellant in the vicinity and that he was not completely deprived of an opportunity to prepare
and repel or avoid the aggression, treachery cannot be appreciated.
Since treachery, which would qualify the killing of Pat. Gelera and PC Constable Canela to
Murder, was not present, the crimes may only be punished as Homicide. It may be true that a
judicial confession of guilt admits all the material facts alleged in the information, including
the aggravating circumstances listed therein, as stated by the trial judge, yet where there has
been a hearing and such circumstances are disproven by the evidence, they should be
disallowed in the judgment. 13
3. We also agree with the parties that the aggravating circumstances of (1) evident
premeditation, (2) in contempt of or with insult to public authorities, (3) uninhabited place,
and (4) abuse of superior strength were not present in the commission of the crimes.
Evident premeditation must be ruled out in view of the absence of sufficient proof that a plan
to kill the victims existed, the execution of which was preceded by deliberate thought and
reflection. Besides, with respect to the killing of PC Constable Canela, only ten minutes
passed from the time the accused escaped from the Municipal Jail up to the time he shot PC
Constable Canela near the cemetery, 14 so that there was no lapse of time during which he
could have deliberately planned the killing of the said PC Constable and meditated on the
consequences of his act.
The aggravating circumstance that the crimes were committed in contempt of or with insult to
the public authorities cannot also be appreciated since Pat. Gelera and PC Constable Canela
were the very ones against whom the crime were committed. Besides, Pat. Gelera and PC
Constable Canela are not persons in authority, but merely agents of a person in authority. 15
5. The lower court also found that the killing of PC Constable Canela was committed in an
uninhabited place. It has not been shown, however, that the offense was committed in an
isolated place, far from human habitation. In order that the aggravating circumstance of the
commission of a crime in an uninhabited place may be considered, it is necessary that the
place of occurrence be where there are no houses at all, a considerable distance from the
village or town, or where the houses are a great distance apart. 16 Here, PC Sgt. Saway merely
declared that the place where PC Constable Canela was shot was about 700 meters away from
the Municipal Building of Bulalacao, Oriental Mindoro, 17 which does not satisfy the
requirement. Besides, the record does not show that the place was intentionally sought by the
accused to facilitate the commission of the crime. The accused was trying to evade his
pursuers, PC Constable Canela among them, and their encounter was purely by chance. The
lower court, therefore, erred in finding that the crime was committed in an uninhabited place.
6. Finally, the aggravating circumstance of abuse of superior strength must also be ruled out
since there is no direct evidence that the accused employed superior strength in the killing of
Pat. Gelera. The accused was then a detainee and was unarmed while Pat. Gelera had his
service pistol with him. With respect to PC Constable Canela, the accused was alone against
three armed pursuers, namely: PC Sgt. Saway, PC Constable Canela, and Pat Nicandro Garcia,
and a civilian by the name of Fred Barcelona. 18
As heretofore stated, the accused is guilty only of the crime of Homicide in the killing of PC
Constable Canela and Pat. Gelera. The Solicitor General recommends that the accused should
be sentenced to suffer imprisonment of from 8 years and 1 day to 14 years and 8 months, with
the accessory penalties, for each homicide committed by him. The penalty recommended is
within the range provided by law.
WHEREFORE, with the modification that the accused Rudy Tiongson should be sentenced to
suffer imprisonment of from eight (8) years and one (1) day of prision mayor, as minimum, to
fourteen (14) years and eight (8) months of reclusion temporal, as maximum, for each
homicide committed by him, the judgment appealed from should be, as it is hereby,
AFFIRMED. The indemnity to be paid to the heirs of the victims is hereby increased to
P30,000.00 in each case.
SO ORDERED.
13
G.R. No. L-24002 January 21, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO DIAZ and GERARDO DIAZ, defendants-appellants
AQUINO, J.:1wph1.t
This is an appeal of defendants Francisco Diaz and Gerardo Diaz from the decision of the
Court of First Instance of Samar convicting them of murder.
Gerardo was sentenced to reclusion perpetua, while Francisco was sentenced to an
indeterminate penalty of ten (10) years and one (1) day of prision mayor to seventeen (17)
years of reclusion temporal. Both appellants were ordered to pay solidarily to the heirs of
Quintin Tadia an indemnity in the sum of six thousand pesos (P6,000) and to pay the costs
proportionately. (Criminal Case No. 202-CC).
There should be no difficulty in resolving the appeal. The case is classic in its simplicity. The
prosecution's evidence consists of eyewitness testimony or direct evidence, not deceptive
circumstantial evidence. Appellant Francisco Diaz admits that he killed Tadia. He justifies the
killing on the ground of self-defense. His younger brother Gerardo denies any participation in
the killing. He has set up the easily contrivable defense of alibi.
So, the main issue is whether credence can be accorded to Francisco Diaz's plea of self-
defense and Gerardo's alibi.
The alternative issues are whether the brothers conspired to kill the victim and whether
treachery and evident premeditation should qualify the killing as murder. The trial court did
not pass upon those ancillary issues.
The evidence for the prosecution shows that at about two o'clock in the afternoon of
September 4, 1963 Remegia Carasos, a fourteen-year old girl, and her first cousin, Anita
Pacaira (Pakaira), eleven years old, were gathering camotes in a farm located at a place
fittingly called Sitio Camotian, Barrio Perito, municipality of Sta. Margarita, Western Samar.
In that peaceful, rustic scene, there suddenly appeared Francisco Diaz (Ansing or Francing), a
twenty-four year old unmarried farmer of that place, whom Remegia and Anita had known for
many years. Without any preliminaries, he embraced Remegia from behind and against her
will and held her breast. He knelt behind her while she was gathering camotes. She shouted for
help, saying: "Anita (Aning), help me because I am being embraced". Reacting to Remegia's
cry for help, Anita, with a bolo, struck Francisco on the head and hands. Francisco released
Remegia and fled. He suffered some injuries in consequence of those blows. The injuries were
treated at the puericulture center by the sanitary inspector (Exh. D and D-1).
The two girls left the camote farm and hastened to the house of Quintin Tadia (Tadya), their
grandfather, in Sitio Ilawod. They informed him that Francisco Diaz had embraced and abused
Remegia. Remegia had been brought up by her grandfather. She was then staying with him.
Anita was living with her parents in a house about six brazas from Tadia's house.
Tadia immediately reported the incident to the barrio lieutenant. He gave Tadia a note for the
municipal authorities so that the proper complaint could be filed against Francisco Diaz.
At around seven o'clock in the morning of the following day, September 5th, Tadia,
accompanied by his teenage granddaughters, Remegia and Anita, was on his way to
the poblacion of Sta. Margarita to file complaint. He was unarmed. He was carrying on his
back a catopis, an oblong basket about four by two "palms' length" containing provisions of
boiled camotes. He was walking ahead, followed by Remegia and Anita one braza behind
him.
While they were ascending the hill or cliff ( pangpang in Waray dialect) in Sitio Ilawod,
Francisco Diaz and his younger brother Gerardo (Adong), twenty-one years old, appeared on
the crest of the hill. Both were wearing denim pants and white shirts. Gerardo was armed with
a locally made shotgun called bardog (Exh. C), about fifty inches long. He immediately fired
sidewise at Tadia while about four meters from the latter, hitting him in the neck. The shot
felled Tadia. He rolled down the lower part of the cliff near the Alao Creek and lay there flat
on his back with his catopis.
Then, the brothers jumped to the lower part of the cliff. Gerardo told his brother: "Go ahead,
Francisco, stab that fellow". Francisco placed his foot on the prostrate body of Quintin Tadia,
bent over him and repeatedly stabbed him in different parts of his body. Francisco was armed
with a bolo commonly called utak which is used in gathering firewood.
After witnessing the assault, Remegia Carasos ran in the direction of her house. Anita Pacairo
hid herself among the bushes or tall grasses "sitting, crouching and peeping" and "seeing all
that was happening" (78 tsn.). Tadia died on the spot where he fell. Gerardo placed
his bardog on a moss-covered stone calledpalanas about three brazas from Tadia's body.
Remegia informed her father and the inhabitants of the barrio about the ambuscade and the
killing of her grandfather. Gerardo Diaz went home while Francisco surrendered to the
authorities.
Doctor Tecla Tagle Valley, the town's municipal health officer, performed an autopsy on the
body of the deceased Quintin Tadia. Her medical findings indicate that the following injuries
caused the death of the sixty-two year old victim:
1. Internal hemorrhage due to penetrating wounds on the chest about two
and one-half inches long and five inches in depth, penetrating the lower
lobe of the right lung, superior vena cava and the right ventricle of the
heart.
2. Punctured wound, one inch long and one inch in depth, left mandibular
region.
14
 3. Stab wound, one inch long and one half inch in depth below left ear.
4. Penetrating wound, four inches in depth, about one centimeter in
circumference, occipital region.
5. Penetrating wound, four inches and one half in depth, about one
centimeter in circumference at the nape.
6. Stab wound, one-half inch in depth and three inches long, left shoulder.
7. Punctured wound, left leg, about two inches long, penetrating thru the
side portion. (Exh. A).
Doctor Valley found two pellets ( perdigones or birdshot) in the two gunshot wounds. The
pellet found in the nape is Exhibit B.
On September 6, 1963 Gerardo Diaz was arrested in Barrio Perito by Policemen Venancio
Melka and Simplicio Calibo. He did not resist arrest. He was in good physical condition. On
September 9, 1963, or four days after the killing, Remegia and Anita executed before the
municipal judge sworn statements wherein they recounted the antecedents and details of the
killing (pages 3 to 8 of the Record). On that same date the chief of police filed in the
municipal court a complaint for murder against the Diaz brothers.
They waived the preliminary investigation. The case was remanded to the Court of First
Instance at Calbayog City where, on November 6, 1963, the fiscal filed against them an
information for murder.
As already noted, appellant Francisco Diaz, while assuming sole responsibility for the killing,
set up the exculpatory plea of self-defense. His version was that he and Tadia were neighbors.
Because he did not accede to Tadia' request for a pig, Tadia allegedly followed him to his
abaca plantation near the Alao River. When Francisco again refused to grant Tadia's request
for the pig, the latter allegedly hacked Francisco with his bolo, wounding him the hand
between the middle and index fingers and in the left side of his head. Francisco retreated, but
when he was cornered, "he pulled the trigger of" his shotgun, causing Tadia "to release his
bolo". Francisco then picked up Tadia's bolo (note that Francisco himself had his own bolo).
He threw away his gun and repeatedly stabbed Tadia. After the stabbing he surrendered to the
authorities.
The inveracity of Francisco's version is quite apparent. The wounds, which according to
Francisco were inflicted on him by Tadia, were the injuries which were inflicted on him on the
preceding day by Anita Pacairo (Exh. D-1). The improbable facets of his story induce
disbelief. A trivial cause may possibly provoke a man to assault another person. But it was
unlikely in this case that Tadia, a sexagenarian grandfather, would have gone to the extent of
assaulting the twenty-four year old Francisco Diaz who was armed with a gun and a bolo, just
because the latter refused to give him a pig.
The prosecution eyewitnesses, Remegia Carasos and Anita Pacaira, positively identified
Gerardo Diaz as the gun wielder who with his brother, Francisco, ambushed Tadia on the cliff.
Such an unmistakable identification can be negated by the alibi interposed by Gerardo Diaz.
He claimed that on September 5, 1963 he was in his house "having a headache and his bones
were aching" (p. 7, Appellant's Brief). He said that he was treated by Honorio Albite. His
mother said that Gerardo was treated by Liloy Diaz. Gerardo said that he was already sick on
September 2, 1963. His mother, who does not know the months of the year, said that he got
sick on September 4th. These discrepancies weaken Gerardo's alibi. Modesto Diaz, the father
of Gerardo, tried to corroborate his alibi. Modesto, "hopelessly illiterate" person, did not know
the month and year when Gerardo was sick.
Gerardo's supposed indisposition could not have prevented him from going to the cliff with
Francisco and waylaying the unsuspecting and unfortunate Tadia. To establish an alibi, the
accused must show that he was at another place for such a period of time that it was
impossible for him to have been at the place where the crime was committed at the time of its
commission (People vs. Resayaga, L-23234, December 26, 1973; People vs. Lumantas, L-
28355, July 17, 1969, 28 SCRA 764, 768).<re||an1w> The alibi of Gerardo Diaz cannot
be sustained. His counsel de oficio agrees "that the defense of alibi is inherently weak and is
generally received with caution". In this case, it was evidently a manufactured alibi.
The trial court carefully observed the demeanor of Remegia Carasos and Anita Pacaira while
testifying. It found them to be "candid and trustworthy" eyewitnesses. The killing was
perpetrated in broad daylight. Remegia was even able to recollect the garments worn by the
Diaz brothers.
As appropriately observed by the trial court, the brothers conspired to kill Tadia to prevent
him from filing a charge of abusos deshonestos. Moreover, Francisco Diaz might have felt
aggrieved because Anita Pacaira had hit him with a bolo and wounded him in the head and
hand (Exh. D-1).
The alternative contention of appellant Gerardo Diaz is that he did not conspire with his
brother Francisco in assaulting Tadia and that he should be held liable only for lesiones for
shooting the victim. That contention is belied by the record.
Doctor Valley found that two gunshots wounds were inflicted. One was a penetrating wound
in the occipital region and another was a penetrating wound in the nape (Nos. 4 and 5, Exh.
A). She testified that, because those wounds were not treated, they contributed to the victim's
death. Gerardo was the one who inflicted those wounds. He used a deadly weapon. He fired at
the vital parts of the victim's body. He desisted from firing further because the victim had
fallen on the river bank below the cliff as a result of the first shot and was beyond the range of
his gun, which was intended for hunting birds.
The conspiracy between the brothers to kill Tadia may be inferred from the antecedents and
circumstances surrounding the killing. The lascivious or vexatious act committed by Francisco
Diaz on Remegia Carasos was reported to the barrio lieutenant. He advised Tadia to go to
town and lodge a complaint with the proper authorities. That fact must have been known to
Francisco Diaz. He wanted to forestall that eventuality. To accomplish that objective, he
15
decided to liquidate Tadia. It was natural or probable that he should seek the collaboration of
his younger brother Gerardo.
The two brothers appeared together on the cliff on that fateful morning of September 5, 1963
to ambush Tadia. Gerardo was armed with a deadly weapon that could be employed at a
distance without exposing himself to any immediate retaliatory act of the victim. He
commenced the assault by firing at Tadia. Then, when Tadia fell down the cliff, Gerardo
maliciously induced or instructed Francisco to continue the assault by stabbing the fallen
Tadia. Francisco obeyed that injunction by inflicting five stab wounds on the defenseless
victim. These circumstances reveal that the brothers acted in concert, impelled by their
common design to kill Tadia. Their liability for the killing is collective, not individual or
separate.
The appellants' defenses are untenable in their transparent flimsiness and fabricated character.
It results that the strong, clear and convincing evidence of the prosecution on the felonious
killing perpetrated by the appellants may be regarded as conclusive. Their guilt has been
established beyond reasonable doubt.
The crime committed by the appellants is murder qualified by treachery as alleged in the
information. There was treachery (alevosia) because the brothers made a deliberate surprise or
unexpected assault on Tadia. They literally ambushed him. They waited for him on the cliff, a
high ground which rendered it difficult for him to flee or maneuver in his defense. Tadia was
shot sidewise while he was ascending the hill or cliff burdened by his catopis or food basket.
That was another circumstance which handicapped him in resisting the assault. The initial
attack was successful. Tadia fell and rolled down the cliff and landed near the creek below. In
that helpless state, he was ruthlessly stabbed by Francisco Diaz.
The appellants resorted to means of execution which directly and specially insured the killing
without any risk to themselves arising from any defense which the victim could have made.
Actually, he was not able to make any defense, unarmed and attacked unaware as he was. The
treacherous mode of attack is incontrovertible (Par. 16, Art. 14 and Art. 248, Revised Penal
Code).
The attack was also attended with abuse of superiority. Two armed young men unexpectedly
assaulted an unarmed sexagenarian. However, abuse of superior strength is merged with
treachery.
The circumstance of old age cannot be considered aggravating. There was no evidence that the
accused deliberately intended to offend or insult the age of the victim. That circumstance may
be absorbed in treachery (People vs. Gervacio, L-21565, August 30, 1968, 24 SCRA 960;
People vs. Mangsant, 65 Phil. 548; People vs. Limaco, 88 Phil. 35, 44).
The trial court did not make any finding as to the degree of instruction of the offenders.
Hence, on appeal, that alternative circumstance cannot be considered in fixing the penalty on
the appellants (People vs. Casillar, L-28132, November 25, 1969, 30 SCRA 352, 358).
As to Francisco Diaz, evident premeditation should be appreciated. It should be recalled that
the embracing incident was reported by Tadia to the barrio lieutenant after two o'clock in the
afternoon of September 4, 1963. That functionary advised Tadia to file a complaint with the
authorities in the town of Sta. Margarita. It may reasonably be assumed that Francisco Diaz
became aware that same afternoon that Tadia, who was his neighbor, was going to
the poblacion to lodge a complaint against him. That would explain why early in the morning
of the next day, September 5th, at about seven o'clock, he and his brother were already in the
hill or cliff waiting for Tadia who was on his way to town. The trial court said:
Francisco having been boloed on the head, he and his younger brother
must have decided to, and thus conspired, to retaliate. For this purpose
they armed themselves. Second, having come to know that the deceased
was going to the poblacion, in company with Remegia Carasos and Anita
Pacaira to file the corresponding complaint against Francisco Diaz for
abusing Remegia Carasos, both accused must have decided and, so
deciding must have confabulated, to waylay the deceased so as to prevent
him from pursuing his plan.
Thus, there was a sufficient interval of time, more than one-half day, within which appellant
Francisco Diaz had full opportunity for meditation and reflection and to allow his conscience
to overcome the resolution of his will (vencer las determinaciones de la voluntad) had he
desired to hearken to its warnings (U.S. vs. Gil, 13 Phil. 530, 547).
However, with respect to Gerardo Diaz, premeditacion conocida should not be appreciated.
Obviously, he participated in the assault in order to help his elder brother who exercised some
moral ascendancy over him and who was the one directly affected by the embracing incident
which preceded the killing (People vs. Talok, 65 Phil. 696, 707; Art. 62, Revised Penal Code).
Premeditation, which was alleged in the information as a qualifying circumstance, should be
considered only as generic aggravating circumstance with respect to Francisco Diaz since
treachery has already been used to qualify the killing as murder (See People vs. Ubia, 97
Phil. 515, 535). In his case, it is offset by the mitigating circumstance of voluntary surrender to
the authorities.
The penalty for murder, which is reclusion temporal maximum to death, should be imposed in
its medium period on Francisco Diaz. He should be sentenced to reclusion perpetua (Arts.
64[4] and 248, Revised Penal Code).
With respect to Gerardo Diaz, as no generic aggravating and mitigating circumstances can be
considered in his case, he was properly sentenced by the trial court to reclusion
perpetua (Arts. 64[1] and 248, Revised Penal Code).
The indemnity which the appellants should pay to the heirs of Quintin Tadia should be raised
to twelve thousand pesos (P12,000).
16
The ironical twist in this case is that an old man paid with life for his attempt to abide by the
law, that is, to vindicate his granddaughter's honor through lawful means. He lost his life
because the appellants chose to take the law into their own hands. For such flagitious
lawlessness, full and condign retributory punishment should be meted.

Accordingly, the judgment of the trial court should be modified. Francisco Diaz is sentenced
to reclusion perpetua with its accessory penalties. The appellants are ordered to pay solidarily
to the heirs of Quintin Tadia the sum of P12,000 as indemnity (Art. 110, Revised Penal Code).
In other respects, the trial court's judgment is affirmed with costs against the appellants.

The benefits of article 29 of the Revised Penal Code, regarding preventive imprisonment, may
be extended to the appellants if the conditions laid down in Republic Act No. 6127 are
satisfied. So ordered.

17
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLARITO ARIZOBAL (at
large), ERLY LIGNES and TWO (2) JOHN DOES, accused-appellants.
DECISION
PER CURIAM:
Man in his inordinate pursuit of lucre oft equates human life with mere chattels and
plunges himself into the bottomless pit of his own folly. He is thus driven to plunder and kill,
crimes which are most reprehensible and ignominious as the criminal apparently leans towards
material gains than to the inestimable value of human life. Clarito Arizobal and Erly Lignes
come to us to assert and prove, if they must, that they are not cast of that mold.
The factual backdrop: On 12 August 1994 two (2) separate Informations were filed before
the Regional Trial Court of Cataingnan, Masbate, charging Clarito Arizobal, Erly Lignes,
Rogelio Gemino and two (2) John Does with Robbery in Band with Homicide for robbing and
slaying Laurencio Gimenez[1], Original Records.1 and his son Jimmy Gimenez.[2]
After arraignment, the two (2) cases were tried jointly. However, on 14 May 1997, upon
motion of accused Rogelio Gimeno, without objection from the prosecution, the two (2)
Informations were dismissed as against him for lack of evidence. But the same cases remained
as against accused Erly Lignes and Clarito Arizobal. Only accused Lignes appeared at the trial
until its termination as Arizobal escaped from detention and had to be tried in absentia.[3] The
two (2) John Does were never apprehended as they were not sufficiently identified.
The prosecution presented, among others, Clementina Gimenez, wife of victim Laurencio
Gimenez. She testified that on 24 March 1994 she together with her husband Laurencio
Gimenez and a grandchild were sound asleep in their house in Tuybo, Cataingan, Masbate. At
around 9:30 in the evening, Laurencio roused her from sleep and told her to open the door
because there were persons outside the house. Since it was pitch-dark she lit a kerosene lamp
and stood up to open the door. She was suddenly confronted by three (3) armed men pointing
their guns at her. She recognized two (2) of them as Clarito Arizobal and Erly Lignes but failed
to recognize the third person who was wearing a maskara. She readily identified Clarito because
she used to pass by his house in San Rafael while Erly was also a familiar face as he was a
regular habitue of the flea market.
According to Clementina, Clarito asked her husband, "Tay, where is your gun." But she
promptly interjected, "We have no gun, not even a bolo. If you want, you can look around for
it."[4] While the man in maskara stood guard at the door, Clarito and Lignes barged into the
master's bedroom and forcibly opened the aparador. The terrified couple could not raise a finger
in protest but had to leave their fate to the whims of their assailants. The intruders ransacked
their cabinet and scattered everything on the floor until they found P8,000.00 among sheets of
paper. Before leaving with their loot they ordered Laurencio to go with them to Jimmy's house
because "we have something to talk about."[5] Against his will, Laurencio went with
them. Clementina recalled that shortly after the group left she heard a volley of shots. Her
grandchild, as if sensing what befell her grandfather, could only mutter in fear, "Lolo is already
dead!"
Erlinda Gimenez, wife of Jimmy Gimenez, narrated that on 24 March 1994, after she and
her son had taken supper, her husband Jimmy with one Francisco Gimenez arrived. Jimmy
informed Erlinda that they had already bought a carabao. After he handed her the certificate of
large cattle, and while he was in the process of skinning a chicken for their supper, three (3)
men suddenly appeared and ordered them to lie face down. One of them pushed her to the
ground while the others tied Francisco and Jimmy as they whipped the latter with an armalite
rifle. She noticed one of them wearing a mask, another a hat, and still another, a bonnet. [6]
Realizing the utter helplessness of their victims, the robbers took the liberty of consuming
the food and cigarettes Erlinda was selling in her sari-sari store. Finding no softdrinks to
complete their snack, two (2) of the intruders ordered Erlinda to buy coke for them at the
neighboring store. But they warned her not to make any noise, much less alert the vendor. When
they returned to the house of Jimmy, the robbers proceeded to ransack the household in search
for valuables. They took around P1,000.00 from her sari-sari store and told them to
produce P100,000.00 in exchange for Jimmy's life. Since the couple could not produce such a
big amount in so short a time, Erlinda offered to give their certificate of large cattle. The culprits
however would not fall for the ruse and threw the document back to her. Three (3) masked men
then dragged Jimmy outside the house and together with Laurencio brought them some fifty
(50) meters away while leaving behind Clarito Arizobal and Erly Lignes to guard Francisco and
Erlinda's son. Moments later she heard a burst of gunfire which reverberated through the
stillness of the night.
When the masked men returned to Jimmy's house, one of them informed Erlinda that her
husband and father-in-law had been killed for trying to escape. Upon hearing this, Erlinda, as if
the heavens had fallen on her, slowly lost consciousness.
The post-mortem examination report prepared by Dr. Allen Ching showed that Jimmy
Gimenez sustained injuries: (a) a gunshot wound located at the victim's zygomatic area (right
side near the ear) which may have caused brain hemorrhage; (b) a non-serious gunshot wound
at the upper back right side (armpit area); (c) a wound located at the middle side of the trunk -
considered as exit of wound No. 2; (d) gunshot wound at the right forearm; and, (e) a wound
considered as a complication of the trajectory point of wound No. 4 that caused the fracturing
of a bone and exited as lacerated bone at the posterior.[7]
The medico-legal examination conducted on Laurencio Gimenez also showed: (a) a chest
wound penetrating the pericardium; (b) gunshot wound at the right thigh exiting at the lumbar
area, back; (c) gunshot wound at the left thigh below the knee; and, (d) cause of death was
respiratory arrest secondary to gunshot wounds.[8]
Erly Lignes who testified in his defense explained that on 24 March 1994 at around 9:30
in the evening he was at the house of a neighbor, one Noli Hermosa, attending a house blessing
in San Pedro, Cataingan, Masbate.He helped as cook and food server. The occasion was
attended by around twenty (20) well-wishers who feasted on fried chicken and tuba. In fact, two
(2) of his friends, Andres Lapay and Alberto Senelong, were among the group of drinkers. The
celebration finally ended at 1:00 o'clock in the morning. Early that morning he went home,
which was only about a hundred meters away.[9]
Erly Lignes also presented Andres Lapay who confirmed his defense of alibi. Andres
recounted that at 9:30 in the evening of 24 March 1994 he was at the house of Noli Hermosa for
the latter's house blessing. There he saw Erly in the kitchen preparing food and drinks for the
visitors. He also attended to Andres' group whenever they needed additional food
and tuba. According to witness Andres, he was certain that from the time of his arrival at 7:00
o'clock in the evening to 11:00 o'clock Erly never went out of the house of Hermosa. When
18
asked whether he knew where Tuybo was, Andres answered in the affirmative. He also clarified
that it would take a person about one and a-half (1-) hours by foot and about one hour (1) by
horseback to travel from San Pedro to Tuybo.
On 30 March 1994 Erly Lignes was arrested in the house of Noli Hermosa and then
detained at the Cataingan Municipal Jail. Erlinda Gimenez, accompanied by three (3)
policemen, later went to the municipal jail and pointed to Clarito Arizobal as one of the suspects
in the robbing and killing of Laurencio and Jimmy Gimenez. Erly insisted that he was not
implicated by Erlinda as a suspect in the crime.
But the trial court gave full credence to the testimony of the prosecution witnesses and
rejected the alibi of accused-appellant Erly Lignes. On 7 July 1998 the court found both accused
Clarito Arizobal and Erly Lignes guilty of robbery with homicide, sentenced them to suffer the
supreme penalty of Death and to indemnify the legal heirs of Laurencio Gimenez P50,000.00
for his death and P20,000.00 for moral damages, and the legal heirs of Jimmy
Gimenez P50,000.00 also for his death and P20,000.00 for moral damages, plus P30,000.00 for
exemplary damages.[10] Their cases are now before us on automatic review in view of the penalty
imposed.
As the lower court explained -
x x x x There is direct relation and intimate connection between the robbery and the
killing. The accused were positively identified as perpetrators of the crime by witnesses
Clementina Gimenez and Erlinda Gimenez who have no motive to falsely testify x x x x
Inasmuch as no improper motive have (sic) been ascribed to prosecution witnesses and no
shadow of evidence appears on record to blacken their credibility, their testimony is worthy of
full faith and credit x x x x[11]
Going to the denial and alibi interposed by accused Erly Lignes that he was at San Pedro,
Cataingnan, Masbate, helping as cook and food server of his neighbor Noli Hermosa during a
house blessing at the time of the robbing and killing and his belief that he was not identified
(Exh. "2") by witnesses (especially Erlinda Gimenez), and that he did not know Clarito
Arizobal, the same cannot be given any credence in the face of the testimony of Clementina
Gimenez and Erlinda Gimenez positively identifying him (Erly Lignes) and his co-accused
Clarito Arizobal as the culprits x x x x The place of the crime is only about six kilometers and
more or less one and a half hour travel by foot from the place where the accused Erly Lignes
was at the time of the commission of the crime.
The robbery with killing was aggravated: 1) By a band because the malefactors were more
than three armed robbers acting together; 2) With treachery because the robbers tied the hand
of the victims before killing them; 3) By nighttime (nocturnity) because the accused took
advantage of the night; and, 4) By dwelling because the robbery is (sic) committed with
violence against or intimidation of persons x x x and the commission of the crime begun in the
dwelling x x x x[12]
Accused-appellant Erly Lignes attempted to discredit the testimonies of the prosecution
witnesses by underscoring their alleged inconsistent, conflicting and incredible statements. He
pointed out that: (a) Clementina testified on direct examination that she saw Erly Lignes in the
flea market four (4) times, but on cross-examination she averred that she saw the accused at the
flea market in only three (3) occasions; (b) she stated that three (3) persons entered their house
and recognized Arizobal and Lignes because they lighted a kerosene lamp and that she did not
recognize the third person because he was wearing a mask thus implying that Arizobal and
Lignes were not wearing masks, in utter disregard of the risk of being identified; (c) she failed
to witness the actual killing when she stated in her testimony that she came to know of it only
the following morning after she was informed by a neighbor thus implying that accused-
appellant Erly Lignes was not positively identified as the killer of the two (2) victims; and, (d)
Erlinda Gimenez stated that three (3) robbers were not wearing masks while two (2) were
wearing masks but later contradicted herself when she stated that three (3) of the masked robbers
executed her husband and father-in-law.[13]
In essence, the issues raised are factual and involve the credibility of the witnesses. It is
doctrinally settled that in the absence of any showing that the trial court's calibration of factual
issues, particularly on the matter of credibility, is flawed this Court is bound by its
assessment. The rationale is the presumption that the trial court is in a better position to decide
the question, having heard the witnesses and observed their deportment and manner of testifying
during the trial.[14] We find no plausible reason to deviate therefrom.
Admittedly, the prosecution witnesses did not give a consistent account of the whole gut-
wrenching episode, particularly on the matter of the number of times Clementina allegedly saw
the accused-appellant at the flea market; the exact number of masked robbers and other minor
details. These lapses however are not so serious as to warrant the reversal of the verdict of
conviction of accused-appellant and his co-accused who, as the record shows, were categorically
identified as two (2) of the perpetrators of the crime.
Accused-appellant Erly Lignes asserts that the failure of Clementina Gimenez to actually
witness the killing of her son and her husband is adequate proof that she failed to identify him
as the killer. We do not agree.Accused-appellant seems to have overlooked the significance of
conspiracy, as a rule for collective criminal liability, where it is not necessary to show that all
the conspirators actually hit and killed the victim; what is important is that all participants
performed specific acts with such closeness and coordination as unmistakably to indicate a
common purpose or design in bringing about the death of the victim.[15] The fact that accused-
appellant conspired in the commission of the crime charged was sufficiently and convincingly
shown by his active participation in ransacking the belongings of the two (2) Gimenez families,
tying and holding Francisco and Erlinda's son immobile while the others led the two (2) hapless
victims to the threshold of their obliteration.
Alibi, as it has been repeatedly held, is one of the weakest defenses as it is easy to concoct
although difficult to prove. In the face of positive identification by credible prosecution
witnesses, accused-appellant's defense of alibi must necessarily crumble. For alibi to be
believed, credible and tangible proof of physical impossibility for the accused to be at the scene
of the crime is indispensable.[16]
The trial court is correct in appreciating dwelling as an aggravating
circumstance. Generally, dwelling is considered inherent in the crimes which can only be
committed in the abode of the victim, such as trespass to dwelling and robbery in an inhabited
place. However, in robbery with homicide the authors thereof can commit the heinous crime
without transgressing the sanctity of the victim's domicile.[17] In the case at bar, the robbers
demonstrated an impudent disregard of the inviolability of the victims' abode when they forced
their way in, looted their houses, intimidated and coerced their inhabitants into submission,
19
disabled Laurencio and Jimmy by tying their hands before dragging them out of the house to be Q: But you have not seen them armed with any firearm, is that correct?
killed.
A: They have.
But treachery was incorrectly considered by the trial court. The accused stand charged
with, tried and convicted of robbery with homicide. This special complex crime is primarily Q: Who were armed with firearms?
classified in this jurisdiction as a crime against property, and not against persons, homicide A: Clarito Arizobal and Erly Lignes.
being merely an incident of robbery with the latter being the main purpose and object of the
criminals. As such, treachery cannot be validly appreciated as an aggravating circumstance Q: What kind of firearm?
under Art. 14 of The Revised Penal Code.[18] This is completely a reversal of the previous
jurisprudence on the matter decided in a litany of cases before People v. Bariquit.[19] A: Short arm.

While it appears that at least five (5) malefactors took part in the commission of the crime, Q: And where was the third person who was wearing mask at the time these two accused
the evidence on record does not disclose that "more than three" persons were armed, and robbery Erly Lignes and Clarito Arizobal ransacked your aparador and got the money?
in "band" means "more than three armed malefactors united in the commission of robbery."
A: At the door of our house.
Nowhere in the records can we gather that more than three (3) of the robbers were armed. Hence,
"band" cannnot be aggravating where no proof is adduced that at least four (4) of the five (5) Q: What was he doing?
perpetrators involved in this case were armed. In this regard, we are quoting pertinent portions
of Clementina Gimenez's testimony - A: On guard.

Q: While you were in your house do you still remember of any unusual incident that Q: Was he armed?
happened?
A: Bringing a long gun, masked.[21]
A: Yes, sir.
For her part, Erlinda Gimenez testified -
Q: What was that incident about?
Q: Did you see who killed your husband?
A: Armed persons entered our house.
A: My husband was brought towards a distance about 50 meters because it could be seen
Q: How many? from where I was and then I heard a burst of firearm thereafter the one who brought
him told me that he ran so that they have (sic) to kill him.
A: Three (3).
Q: Who told you?
Q: You said that these 3 persons were armed, will you tell this Honorable Court the kind
of weapon or arms they were bringing with them at that time? A: The one wearing mask.

A: One person carrying a long firearm. Q: Where were accused Clarito Arizobal and Erly Lignes at that time?

Q: How about the other two? A: The two (2) took guard on Boboy Gimenez (referring to Francisco) and my son.

A: One person standing at the door carrying a long firearm and the two went upstairs. Q: Were they armed?

Q: Were they carrying weapons? A: Yes sir, short gun, sir.

A: They have (sic) both of them were carrying short firearms.[20] Q: When your husband was brought by three of these five (5) persons, your son and
Francisco Gimenez were left behind?
On cross examination she further clarified -
A: Yes sir, because they were tied.[22]
Q: Where were you when you saw that the two accused Clarito Arizobal and Erly Lignes
got the money? We likewise hold that the aggravating circumstance of nighttime did not attend the
commission of the crime. The fact that the offense was committed at 9:30 in the evening does
A: At the sala. not suffice to sustain nocturnidad for, by itself, nighttime is not an aggavating
circumstance.[23] To be properly so considered, it must be shown that nocturnidad was
Q: When they ransacked your aparador you did not object?
deliberately and intentionally sought by accused-appellants to help them realize their evil
A: They let us sit and warned us not to move. intentions.[24]Nowhere can we infer from the records that the malefactors sought the cover of

20
darkness to facilitate the accomplishment of their devious design. On the contrary, the locus Code, when the crime is attended by an aggravating circumstance with no circumstance
criminis was well lighted and nighttime was merely an incidental element to the whole drama. mitigating it, the higher penalty shall be imposed.
First. The houses of the victims were adequately lighted by kerosene lamps when the Four (4) members of the Court are steadfast in their adherence to the view that RA 7659
robbers entered and went about their looting spree. In People v. Pallarco[25] this Court clarified is unconstitutional insofar as it prescribes the death penalty. However, they bow to the majority
this modifying circumstance thus - opinion that the aforesaid law is constitutional and, therefore, the penalty prescribed thereunder
has to be imposed.
Nor can the aggravating circumstance of nighttime be appreciated, for the prosecution failed to WHEREFORE, the Decision of the Regional Trial Court of Cataingan, Masbate, finding
demonstrate (a) that the malefactor particularly sought or took advantage of the darkness to accused-appellant ERLY LIGNES and accused CLARITO ARIZOBAL GUILTY of Robbery
commit the offense, or (b) that nighttime facilitated the commission of the crime. In any event, with Homicide and imposing upon both of them the penalty of DEATH, is AFFIRMED with
the prosecution presented no evidence to establish the fact that nocturnidad attended the the MODIFICATION that accused-appellant ERLY LIGNES and his co-accused CLARITO
killing. Nighttime cannot be considered if it is shown that the place was adequately lighted. In ARIZOBAL (who is still at large) are ordered in addition: (a) to pay jointly and solidarily the
this case, it was established that the place was sufficiently illuminated by a kerosene lamp. legal heirs of Laurencio Gimenez and Jimmy Gimenez P50,000.00 for civil indemnity,
another P50,000.00 for moral damages, and P20,000.00 for exemplary damages, for each set of
Second. The robbers, particularly referring to accused-appellant and his co-accused, heirs; and, (b) to pay jointly and solidarily the legal heirs of Laurencio Gimenez P8,000.00 and
lingered in the locus criminis and even conversed with their intended victims for an appreciable those of Jimmy Gimenez P1,000.00 representing their respective actual damages.
period of time inside the well-lit houses.As Erlinda Gimenez testified, the place where the
victims were gunned down was adequately illuminated by the moonlight, although for
undisclosed reasons she did not see the actual shooting.[26] In accordance with Sec. 25 of RA 7659 amending Art. 83 of The Revised Penal
All these taken together belie the assumption that the culprits took advantage of the Code, upon the finality of this Decision, let the records of the case be forwarded to His
intrinsic impunity afforded by the cover of darkness and made the same as an ally to accomplish Excellency, the President of the Philippines, for the possible exercise of his pardoning
their nefarious plan. Nocturnity lures those who crave for blood to yield to their baser impulses power. Costs against both accused.
with the false courage borne out of the belief that their identity would not be brought in the SO ORDERED.
open. We do not discern any such intention in this case.
We also note with approval the view of the trial court that the offenders did not commit
two (2) separate counts of robbery with homicide but only a delito continuado, as the ransacking
of the two (2) houses and the killing of the victims were not entirely disconnected and distinct
acts of depredation. They arose from a single criminal impulse and intent, "there being unity of
purpose and of right violated."[27]
As to actual damages, it was proved that the robbers took the amount of P8,000.00 from
the family of the deceased Laurencio Gimenez and P1,000.00 from that of Jimmy
Gimenez. Their legal heirs must therefore be indemnified for these losses. However, the award
of the trial court of P20,00.00 for moral damages and P30,000.00 for exemplary damages must
be modified to P50,000.00 and P20,000.00 for moral damages and exemplary damages,
respectively for the legal heirs of each victim.
The trial court correctly found accused-appellant and his co-accused Clarito Arizobal
guilty of the crime of robbery with homicide as defined in Art. 294, par. (1), of The Revised
Penal Code. The prosecution has established beyond any scintilla of doubt through the
prosecution witnesses that Erly Lignes in conspiracy with Clarito Arizobal and three (3) other
unidentified persons used violence and intimidation against the members of the two (2) Gimenez
families in carrying out the robbery and on the occasion thereof killed Laurencio and Jimmy
Gimenez.
The special complex crime of robbery with homicide carries with it the penalty
of reclusion perpetua to death. In conformity with Art. 63, par. (1), of The Revised Penal

21
G.R. No. L-40330 November 20, 1978
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADO DANIEL alias "AMADO ATO", accused-appellant.
Eraulio D. Yaranon for appellant.
Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and
Solicitor Rosalio A. de Leon for appellee.
MUOZ PALMA, J:
This case originated from the Court of First Instance of Baguio City by virtue of a complaint
filed by 13-year old Margarita Paleng accusing Amado Daniel alias "Amado Ato" of rape
alleged to have been committed as follows:
That on or about the 20th day of September, 1965, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the herein
accused, armed with a sharp instrument and by means of force and
intimidation, did then and there willfully, unlawfully and feloniously have
carnal knowledge of the undersignedcomplaint, against her will, and in her
own room situated at No. 25 Interior, Pinsao, Guisad, Baguio City.
That in the commission of the crime, the aggravating circumstance that it
was committed in the dwelling of the offended party, the latter not having
givenprovocation for it, is present. (p. 1, CFI record)
The trial court, presided then by Hon. Feliciano Belmonte, after due trial rendered its decision
on May 30, 1966, finding the accused guilty and sentencing him to suffer "not more than
TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal and not less than SIX (6)
YEARS and ONE (1) DAY of prision mayor, and to pay the costs." 1
His motion for reconsideration and new trial having been denied, accused filed a notice of
appeal; forthwith the case was forwarded to the Court of Appeals.
On September 23, 1974, the Court of Appeals through its Tenth Division rendered
a decision the dispositive portion of which follows:
PREMISES CONSIDERED, We find that the guilt of the accused Amado
Daniel has been proven beyond reasonable doubt, and he should
accordingly suffer the penalty for the crime herein charged.
We find, however, that the sentence imposed the accused in the judgment
appealed from is not in accordance with law.
Republic Act No. 4111, which took effect on June 20, 1964, amended
Article 335 of the Revised Penal Code, providing that
The crime of rape shall be punished by reclusion
perpetua.
Whenever the crime of rape is committed with the use
of a deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.
Under Section 17 of Chapter 11 of the Judiciary Act of 1948 (Republic
Act No. 296, as amended)
The Supreme Court shall have exclusive jurisdiction to review, revise,
reverse, modify or affirm on appeal, as the law or rules of court may
provide, final judgments and decrees of inferior courts as herein provided,
in
(1) All criminal cases involving offenses for which the penalty imposed is
death or life imprisonment; ...
WHEREFORE, We hereby certify this case to the Supreme Court for
appropriate further proceedings pursuant to law. 2
By virtue of the foregoing decision of the Court of Appeals the case was certified to this Court
and in a Resolution of March 6, 1975, the same was ordered docketed. 3
Preliminary question
The certification of the case to Us poses a preliminary question which strikes at the very root
of a long standing practice and procedure evoked for the last forty years or so since the
creation of the Court of Appeals. 4
Is the Supreme Court with jurisdiction to act on an appeal in a criminal case where the offense
is punishable by reclusion perpetua or death certified to it by the Court of Appeals with
findings of facts and of the guilt of the accused, but without imposing the penalty of reclusion
perpetua or death on the appellant pursuant to Rule 124, Section 12, paragraph 2, of the Rules
of Court?5
Mr. Chief Justice Fred Ruiz Castro, joined by other ,Justices, expresses the view that for this
Court to acquire jurisdiction over the appeal, the decision before Us must have imposed on the
appellant the penalty either of reclusion perpetua or death as the facts warranted.
22
The rest of the Justices together with the writer of this Opinion, believe otherwise and hold the
view that the dispositive portion of the decision as written and rendered is in accordance with
the Constitution and the law, and vests jurisdiction on the Court to act on the appeal.
A. In People v. Ramos, decided on November 28, 1947, 6 a case was certified to this Court by
the Court of Appeals without findings of facts and simply on the ground that it was "on the
opinion that the penalty that should be imposed ill this case is reclusion perpetua, as
recommended by the Solicitor-General, and not reclusion temporal, as imposed by tile lower
court." The question arose as to the proper procedure to be followed by the appellate court in
certifying cases to this Court under Section 145-K of the Revised Administrative Code as
amended by Republic Act No. 52 which read:
Whenever in any criminal cases submitted to a division the said division
should be of the opinion that the penalty of death or life imprisonment
should be imposed, the said Court shall refrain from entering judgment
thereon and shall forthwith certify the case to the Supreme Court for final
determination, as if the case had been brought before it on appeal.
In disposing of the issue several matters came up which evoked different, and We may say,
strong reactions from the Justices then composing the Court, but for brevity we shall not dwell
on them. Simply stated, it is was ruled that the Court of Appeals was duty bound to make its
findings of facts to support its opinion that the penalty to the imposed upon the appellant was
either life imprisonment or death so as to bring the case within the jurisdiction of this Court.
From the Resolution written for the Court by then Mr. Chief Justice Manuel V. Moran, We
quoted the following pertinent portions:
The jurisdiction of this Court predicated upon the opinion of the Court of
Appeals, as provided in the above-quoted provisions of the law, must of
necessity defend upon the correctness of that opi nion There is nothing in
the law precluding this Court from exercising ing its authority to pass
upon such question which concerns its own jurisdiction. And in order that
this Court may exercise its power of review the Court of appeals is bound
to make in its order f certification such findings of facts as are necessary
to support its conclusion that either life imprisonment or death is the
penalty to be imposed. This is indeed covered by Rule 52, section 3, which
provides th where a court to which an appeal has been taken has no
appellate jurisdiction over lic case and it certifies the same to the proper
court, it must do so "with a specific and clear statement of grounds
therefor." the requirement of with and specific grounds is precisely a
device to prevent erroneous transmissions of jurisdiction from a lower to a
superior court.
Furthermore, the words "shall refrain from entering judgment thereon"
appearing in the provision above quoted, are sufficient indication that the
Court of Appeals, at the time of certifying the case to this Court, had
already examined the evidence and was ready to render judgment on the
merits, but having found from the facts established by proof that the
penalty to be imposed is either death or life imprisonment, instead of
entering judgment thereon , it certifies the case to the Supreme Court for
final determination. Since the Certification is the only ground for
determining our jurisdiction, it must contain not only conclusions of law
but also findings of fact, the latter being more important than the former
for they supply the real basis for determining jurisdiction ...
The instant case cannot be compared with cases coming directly from a
Court of First Instance wherein either life imprisonment or death penalty
is imposed, for in such cases, if we assume jurisdiction even where the
judgment appears to be erroneous on its face, it is because the Court of
First Instance has already exhausted its jurisdiction by rendering
judgment on the merits containing both findings of fact and conclusions of
law, and under such circumstance it is more practical for the
administration of the law that this Court should exercise its appellate
jurisdiction by examining the evidence and correcting all errors both of
fact and of law that might have been committed by the trial court. But
here, the Court of Appeals is refraining from rendering judgment on the
merits and is refusing to complete the exercise of appellate jurisdiction
because it believes that such jurisdiction belongs to the Supreme Court
and thus, it proceeds to transfer the case to this Court. lt is in that transfer
that we believe we may intervene in order to prevent an erroneous
transfer,
xxx xxx xxx
Section 145-K of the Administrative Code is merely a method designed to
make effective the appellate jurisdiction of both the Court of Appeals and
this Court, as defined by law. According to the law of jurisdiction (section
138, Revised Administrative Code, as amended by Commonwealth Acts
Nos. 3 and 259), offenses, for which the penalty imposed is death or life
imprisonment, including offenses arising from the same occurrence or
committed on the same occasion, come within the appellate jurisdiction of
the Supreme Court, and the remaining offenses fall within the appellate
jurisdiction of the Court of Appeals ...
We are of the opinion and so hold, therefore, that in a case like this, the
Court of Appeals, in certifying it to this Court, must state its findings of
fact necessary to support its conclusion that the penalty to be imposed is
either life imprisonment or death. While this Court will not review the
findings of fact, it will pass upon the correctness of the legal conclusions
derived therefrom. And if this Court finds the conclusions to be correct, it
will assume jurisdiction. If it finds them to be wrong, the case will be
returned to the Court of Appeals. (pp. 613-616, supra, emphasis supplied)
23
In Ramos, the case was accepted because the Court considered that there was substantial
compliance with the law as the order of certification made reference to the opinion and
recommendation of the Solicitor General whose brief contained sufficient findings of fact to
warrant the conclusion that life imprisonment should be imposed upon the appellant. Justices
Paras, Feria, Pablo, Hilado and Briones concurred in the Resolution.
Justice Gregorio Perfecto in a separate opinion concurred with the principle that the Court of
Appeals is bound to make its findings of fact and study the evidence so as to determine
whether the appellant is guilty or not, but dissented from that portion of the Resolution which
accepted the case as he was of the opinion that the case should have been remanded to the
Court of Appeals.7
Justice Pedro Tuason wrote a separate opinion and dissented from the majority insofar as it
held that it was necessary for the Court of Appeals or a division thereof to state the reasons for
its opinion that death penalty or life imprisonment should be imposed. He particularly
dissented from statements that if this Court found the conclusions of the Court of Appeals to
be wrong, the case should be returned to the Court of Appeals for further proceedings.
According to Justice Tuason when a case is certified to this Court it is placed, by force of the
Court of Appeals' opinion, within the jurisdiction of the Supreme Court for the latter to decide
the appeal on the merits; findings of fact of the Court of Appeals are neither essential nor
necessary. Justice Tuason was joined in his dissent by Justice Cesar Bengzon who later
became Chief Justice of this Court and Justice Sabino Padilla.8
B. The theory is now advanced that We go one step further than that ruled in Ramos that is,
for the Court of Appeals not only to make its findings of fact and finding of guilt, but also to
impose the penalty either of reclusion perpetua or death as the facts warrant in order that We
may exercise Our appellate jurisdiction.
We believe that such a judicial ruling will be violence to the letter and spirit of the law which
confers on the Supreme Court the exclusive prerogative to review on appeal and impose the
corresponding penalty in criminal cases where the offense is punishable by reclusion
perpetua or death.
Both the 1935 and the 1973 Constitutions vest upon the Supreme Court appellate jurisdiction,
in "(A)ll criminal cases in which the penalty imposed is death or life imprisonment."9 This
jurisdiction is constitutional: the Supreme Court ma not be deprived thereof by, Congress then,
now the National Assembly. 10
Section 17 of the Judiciary Act 1948 as amended in turn provides that the foregoing appellate
jurisdiction of the Supreme Court is exclusive.
Basically therefore, the objection to this new theory is one of jurisdiction - the lack of
jurisdiction of the Court of Appeals to impose the penalty of reclusion perpetua or death.
The present controversy springs from the construction given to the second paragraph of Sec.
12, Rule 124, Rules of Court 11 more particularly to the use of the phrases "should be
imposed" and "shall refrain from entering judgment", viz:
xxx xxx xxx
Whenever in any criminal case submitted to a division the said division
should be of the opinion that the penalty of death or life imprisonment
should be imposed, the said court shall refrain from entering
judgment thereon and shall forthwith certify the case to the Supreme Court
for final determination, as if the case had been brought before it on appeal.
(Emphasis supplied)
As we construe it, the Rule cited does not charge the appellate court with
the duty of imposing the penalty of reclusion perpetua or death. All that
the Rule requires is that should the Court of Appeals be of the opinion that
death or life imprisonment should be imposed, it "shall refrain from
entering judgment thereon ...
The clause "entering judgment" means "rendering judgment". Thus, the Court of Appeals shall
refrain from rendering judgment if and when it is of the opinion that reclusion perpetua or
death is the proper penalty for the crime committed. This can be the only logical interpretation
considering that the Court of Appeals is without jurisdiction to impose the penalties
concerned. The phrase "entering judgment" is not to be equated with an "entry of judgment" as
the latter is understood in Rule 36 in relation to Section 8, Rule 121 and Section 16, Rule 124,
Rules of Court. "Entry of judgment" presupposes a final judgment final in the sense that no
appeal was taken from the decision of the trial or appellate court within the reglementary
period. A judgment in a criminal case becomes final after the lapse of the period for perfecting
an appeal, or when the sentence has been partially or totally satisfied or served, or the
defendant has expressly waived in writing his right to appeal. 12 It is only then that there is a
judgment which is to be entered or recorded in the book of entries of judgments. 13
It would be incongruous or absurd to state that Section 12, second paragraph, Rule 124 enjoins
the Court of Appeals from entering judgment" when there is no judgment to be entered .
But then the argument is advanced what is there to be reviewed by the Supreme Court
when the decision being certified contains no penalty or sentence, as distinguished from
appeals from the Court of First Instance where there is a complete judgment to be passed
upon. The answer is simple. Section 12 itself states that the case is for final determination by
the Supreme Court as if the case had been brought before it on appeal. Hence, based on the
findings of facts of the appellate court which as a rule are conclusive and binding on Us, this
Court "will pass upon the correctness of the legal conclusions derived therefrom" (People v.
Ramos, supra) and impose the correct penalty for the offense committed.
We realize that had Section 12, Rule 124 used the phrase shall refrain
from rendering judgment " there would be no cause for any ambiguity. We can only assume
that the intent of the Rule was so clear to the Court when it drafted the Revised Rules of Court
24
that it did not envision a possible contrary or adverse interpretation or ambiguity in its
implementation under the phraseology used. It is incumbent upon Us to construe the Rule in
the spirit and intent it was conceived and in harmony with pertinent laws and jurisprudence.
On the merits of the appeal
1. Generally in a case of this nature, the evidence of the prosecution consists solely of the
testimony of the offended party. Here We have the declaration of the victim, who at the time
of the incident was a little less than 13 years of age, on the basis of which the trial court found
the charge of rape duly established. The happenings are briefly summarized in the People's
brief as follows:
The offended party in this case is Margarita Paleng who was born on
November 20, 1952 (p. 3, t.s.n., Manipon). She is a native of Balangabang
Tublay, Mountain Province (pp. 3, 12, Id.) At the time of the incident in
question on September 20, 1965, complainant was temporarily boarding at
a house located at Pinsao Guisad Baguio City, as she was then a first year
high school student at the Baguio Eastern High School (pp. 3, 12, 20, Id.;
p. 36, Estigoy).
On September 20, 1965, at about three o'clock in the afternoon, she had
just arrived in the City from Tublay in a Dangwa bus (p. 3, Manipon).
Because it was then raining and the bus was parked several meters away
from the bus station, she waited inside the bus (pp. 3, 22, Id.). After about
three minutes of waiting, the accused came and started molesting her by
inquiring her name and getting hold of her bag (pp. 4, 22-24, Id.). But she
did not allow him to hold her bag (p. 24, Id.). She called the attention of
the bus driver and the conductor about the actuation of the accused, but it
seemed that the former were also afraid of him (pp. 24-25, Id.).
Despite the rain, she left the bus and went to ride in a jeep parked some
100 meters away (pp. 4, 25, Id.). The accused closely followed her (p.
4, Id.). When the jeep started to go, the accused also rode and sat beside
her (p. 5, Id.).
When the jeep reached Guisad, she alighted on the road but she still had to
negotiate a distance of ten meters (p. 5, Id.). The accused also alighted and
again he tried to carry her bag (p. 5, Id.). Although he was not allowed to
carry her bag, her was adamant in following her (p. 5, Id.).
Reaching her boarding house, she opened the door and was about to close
it when the accused dashed in and closed the door behind him (pp. 31-
32, Id.). When she entered her room, the accused went in (p. 7, Id.). He
pulled a dagger eight inches long and threatened her: "If you will talk, 1
will kill you". (p. 7, Id.). Margarita was stunned into silence because of
her fear (p. i Id.). Thereupon, the accused held her hair with his left hand
and forced her Lo lie down in bed (p. 7, Id.) He also placed his left hand
with a handkerchief in Margarita's mouth, at the same time holding the
dagger and her neck with his right hand (pp. 7-8, Id.). She was forcibly
made to the down and, at this moment, the accused removed the buttons of
his pants (p. 8, Id.). He then put down the dagger on tile bed (p. 8, Id.).
Her attempts to extricate herself from the accused was to no avail assile
was only 4 ft. and 8 inches tall and weighed about 95 to 100 pounds (p.
35, Id.) while the accused was 5 ft. and 7 inches tall and weighed about
126 pounds (pp. 8, 59, Id.). He then held his penis (pp. 8. 36, Id.), used his
thigh to separate the legs of Margarita (p. 38, Id.). tried, but failed. to
remove her panty (p. 36, Id.). He nonetheless guided his penis and inserted
it inside the vagina of the complainant after prying open the part of her
panty covering her private parts (pp. 9, 36, Id.). Then he succeeded in
having carnal knowledge of the offended party (p. 9, Id.). Margarita lost
consciousness. When she recovered, he was already gone (p. 9, Id.).
The following morning, her father came to visit her. She confided to him
the terrible misfortune which befell her (pp. 9-10, Id.). She was
immediately brought to the Baguio General Hospital where she was
examined (p. 10, Id.). Then they proceeded to the Police Department. The
Chief of Police accompanied them to the Health Center where she was
again examined by Dr. Perfecto O. Micu who thereafter submitted his
medical report (Exh. C; p. 3, rec.; pp. 11, 14-16, Id.). Margarita and her
father gave their respective statements before the police authorities (Exh.
B, pp, 5-6, rec.; p. 11, t.s.n.). She signed her criminal complaint prepared
by the Fiscal's Office of Baguio (Exh. A; p. 1, rec.; p. 11, t.s.n. (pp. 2-4,
Brief at p. 83, rollo
The City Medico-Legal Officer, Dr. Perfecto Micu was called to the witness stand and he
testified on the physical examination conducted on the person of Margarita Paleng on
September 23, 1965 and his findings as contained in the report were as follows:
1. Hymen-circular-stellate type with healing lacerations at 6:00, 8:00, 9:00
and 11:00 o'clock positions in the face of a clock.
2. Contusions at the base of the hymen at 3:00 & 9:00 o'clock regions.
3. Vaginal Orifice - tight and hardly admits 2 fingers.
4. Vaginal wall tight and vaginal folds are prominent.
5. Vaginal smear negative for spermatozoa and for gram negative intra
or extra-cellular diplococci. (Exh. "C", p. 3, CFI record)
Dr. Micu concluded that "defloration was recent". He further declared that the condition of the
hymen revealed that Margarita Paleng was a virgin before the incident complained of, and that
25
the number of lacerations and contusions at the base of the hymen indicated the degree of
force exerted to effect the sexual act. 14
For his defense, appellant claimed that he and Margarita were acquainted with each other
since 1963, and there were occasions when they rode together in a bus; that the incident of
September 20, 1965 inside the room of Margarita was with the latter's consent, and in fact it
was the second time he had carnal knowledge with her, the first time having occurred inside a
shack; that he promised Margarita that he would marry her, but to his surprise, she filed the
instant complaint against him. 15
2. The issue being one of credibility, We find no cogent reasons for discarding the findings of
facts of the trial court which were sustained by the Court of Appeals after the latter had
examined the evidence as a result of which it certified the case to this Court.
Appellant assails the veracity of the testimony of the complainant. But what possible motive
could a thirteen-year old girl barely in her teens have in fabricating a story that could only
bring down on her and her family shame and humiliation and make her an object of gossip and
curiosity among her classmates and the people of her hometown. It cannot be denied that a
public trial involving a crime of this nature subjects the victim to what can be a harrowing
experience of submitting to a physical examination of her body, an investigation by police
authorities, appearance in court for the hearing where she has to unravel lewd and hideous
details of a painful event which she would prefer to forget and leave it unknown to others. If
Margarita did forego all these and preferred to face the cruel realities of the situation it was
due to her simple and natural instincts of speaking out the truth.
The insinuation that this complaint was filed because appellant had not married the girl
although he promised to marry her, is preposterous. On September 20, 1965, Margarita was
only twelve years and ten months old and was not of marriageable age, hence, marriage was a
legal impossibility. And as regards appellant's testimony that the complaint was instigated by
the Chief of Police of Tublay who was Margarita's uncle, the trial court did not give credit to
such a declaration.
Counsel for appellant stresses that notwithstanding that Margarita had the opportunity to ask
for help or attract the attention of other people before she reached her boarding house, she
failed to do so. According to counsel there were people at the Dangwa station, in the busy
streets, in the market place, in the jeepney parking place where the girl took a jeep to proceed
to the boarding house, and in the neighboring houses the closest of which was about 5 meters
away, but no attempt was ever made by complainant to seek help so as to prevent appellant
from molesting her. 16
Appellant's contention presupposes that Margarita was well aware all the time from the
moment she saw the appellate inside the bus that the latter had intentions of abusing or raping
her. All that the appellant did inside the bus was to hold her bag and she caged the attention of
the driver and the conductor to the impertinence of appellant but the two did not do anything
about it. 17 And when Margarita walked from the bus to the jeepney station, although she saw
appellant walking behind her she did not suspect that he was following her. To a question
propounded by His Honor whether she suspected that appellant was following her, Margarita
answered: "No sir, I did not suspect." 18 All along Margarita could not call the attention of the
people in the street or shout for help inasmuch as at that particular moment the appellant was
not doing anything against her. And when Margarita reached the boarding house there were no
persons around 19 and in fact she went straight to her room and it was at that particular
moment when appellant barged into the room before she could close the door. In short, the
Poor girl was simply taken by surprise by the forced entrance of appellant who immediately
took out an 8-inch long dagger and said "If you will talk I will kill you."
Persons can have different reactions to a situation like that some may manifest an
aggressive or violent attitude of confronting a molesting or impertinent fellow while others,
like 12-year old Margarita, may assume a silent. fearful attitude.
Appellant's counsel also claims that Margarita did not offer any resistance to the acts of the
accused at the time the latter was allegedly forcing himself on her as shown by the medical
findings that there were no signs of extra-genital injuries on the girl's body, and no blood
stains on her dress and underwear.
The foregoing arguments are inadequate to weaken and destroy the veracity of Margarita's
straightforward and positive declaration as to how appellant, a 22-year old farmer in the prime
of his manhood, weighing 126 lbs and five feet 21 and six inches tall,20 overpowered her and
succeeded in accomplishing the sexual act despite her resistance. Margarita was less than 13
years of age, was 4' 8 " in height, and weighed around 95 lbs.21
In a crime of rape, force need not be irresistible; "it need but be present, and so long as it
brings about the desired result, all consideration of whether it was more or less irresistible, is
beside the point. 22
All that is necessary is that the force used by the accused is sufficient for him to consummate
his evil purpose. In U.S. v. Villarosa, 1905, there was a similar situation. A 12 year old girl
was sexually abused in the woods by a man of superior physical strength. In holding the
accused Villarosa guilty of rape the Court held:
It is a doctrine well established by the courts that in order to consider the
existence of the crime of rape it is not necessary that the force employed in
accomplishing it be so great or of such character as could not be resisted;
it is only necessary that the force used by the guilty party be sufficient to
consummate the purpose which he had in view. (4 Phil. 434, 437 citing
Judgment May 14, 1878, Supreme Court of Spain. The Villarosa doctrine
has been followed in numerous cases involving the crime of rape and one
of the latest is People v. Equec, 1977, per Justice Enrique Fernando, 70
SCRA 665.)
And as stated in People v. Savellano, per Justice Ramon Aquino, the force or violence
necessary in rape is naturally a relative term, depending on the age, size, and strength of the
parties and their relation to each other. 23
26
Rape is likewise committed when intimidation is used on the victim and the latter submits SO ORDERED.
herself against her will because of fear for her life and personal safety. In this case of
Margarita Paleng, appellant was armed with a dagger and with it threatened to kill the girl if Teehankee, J., concurs.
she would talk or scream for help. Her fear naturally weakened whatever resistance Margarita
could muster at the time and as a result appellant was able to consummate his coitus on the
victim. 24 Barredo, Antonio, Concepcion, Jr. and Santos, JJ., concur in the result on the merits.

One last point raised by the able counsel of appellant, Atty. Braulio D. Yaranon, who at the Castro, C.J., Makasiar, Fernando and Fernandez, JJ., took no part.
time of the trial in 1965 was the Vice-Mayor of Baguio City, was that appellant voluntarily
submitted to a lie detector test with the National Bureau of Investigation and the report of the Guerrero, J., is on leave.
lie detector examiner is in appellant's favor, that is, the latter was telling the truth on the
questions propounded to him one of which was whether he forced Margarita Paleng into
having sexual intercourse with him and the reply was "No". 25

On this matter We find the trial Judge's observations and conclusions meritorious and We
quote from his decision the following:

As to the N.B.I. lie detector test report, the Court does not put much faith
and credit on it. It is well known that the same is not conclusive. Its
efficacy depends upon the time, place and circumstances when taken and
the nature of the subject. If subject is hard and the circumstances, as in this
instant, were not conducive to affect the subject emotionally, the test will
fail. The subject had nothing more to fear because the trial was over. He
was not confronted by the victim or other persons whom he had a reason
to fear. Naturally, his reaction to the questions propounded was normal
and unaffected and the apparatus could not detect it. (pp. 172-173, CFI
record)

To conclude, the crime committed by the appellant is rape with the use of a deadly weapon
with the aggravating circumstance of having been committed in the dwelling of the offended
party. Although Margarita was merely renting a bedspace in a boarding house, her room
constituted for all intents and purposes a "dwelling" as the term is used in Article 14(3),
Revised Penal Code. It is not necessary, under the law, that the victim owns the place where
he lives or dwells. Be he a lessee, a boarder, or a bed-spacer, the place is his home the sanctity
of which the law seeks to protect and uphold.

Hence, the correct penalty for the crime committed is death pursuant to Article 335 of the
Revised Penal Code as amended. However, for lack of the necessary number of votes, the
penalty next lower in degree is to be applied.

PREMISES CONSIDERED, We affirm the judgment of conviction of Amado Daniel for the
crime of rape as charged, and We sentence him to suffer the penalty of reclusion perpetua and
order him to indemnify Margarita Paleng by way of moral damages in the amount of Twelve
Thousand Pesos (P12,000.00) and pay the costs.

Decision Modified.

27
 EN BANC
G.R. No. L-19491 August 30, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
APOLONIO APDUHAN, JR. alias JUNIOR, ET AL., defendants,
APOLONIO APDUHAN, JR. alias JUNIOR, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Alberto M. Meer for defendant-appellant.
CASTRO, J.:
This is an automatic review of the judgment rendered on August 30, 1961 by the Court of First
Instance of Bohol (Judge Hipolito Alo presiding) convicting Apolonio Apduhan, Jr. of robbery
with homicide and sentencing him to death and "to idemnify the heirs of the deceased
Geronimo Miano in the amount of P6,000.00, to indemnify the heirs of the other deceased
Norberto Aton in the same amount of P6,000.00 ..."
On August 2, 1961 the accused Apduhan, then represented by Atty. David Ocangas, together
with his co-accused Rodulfo Huiso and Felipe Quimson, both represented by Atty. David
Tirol, pleaded not guilty to a second amended information which recites:.
The undersigned Provincial Fiscal accuses Apolonio Apduhan, Jr., alias Junior,
Rodulfo Huiso and Felipe Quimson of the crime of Robbery with Homicide,
committed as follows:
That on or about the 23rd day of May, 1961, at about 7:00 o'clock in the evening, in
the Municipality of Mabini, Province of Bohol, Philippines, the above-named
accused and five (5) other persons whose true names are not yet known (they are
presently known only with their aliases of Bernabe Miano, Rudy, Angel-Angi,
Romeo and Tony) and who are still at large (they will be charged in separate
information or informations as soon as they are arrested and preliminary
proceedings in Crim. Case No. 176 completed before the Justice of the Peace Court),
all of them armed with different unlicensed firearms, daggers, and other deadly
weapons, conspiring, confederating and helping one another, with intent of gain, did
then and there willfully, unlawfully and feloniously enter, by means of violence, the
dwelling house of the spouses Honorato Miano and Antonia Miano, which was also
the dwelling house of their children, the spouses Geronimo Miano and Herminigilda
de Miano; and, once inside the said dwelling house, the above-named accused with
their five (5) other companions, did attack, hack and shoot Geronimo Miano and
another person by the name of Norberto Aton, who happened to be also in the said
dwelling house, thereby inflicting upon the said two (2) persons physical injuries
which caused their death; and thereafter the same accused and their five (5) other
companions, did take and carry way from said dwelling house cash money
amounting to Three Hundred Twenty-two Pesos (P322.00), Philippine Currency,
belonging to Honorato Miano and Geronimo Miano, to the damage and prejudice of
the said Honorato Miano and the heirs of the deceased Geronimo Miano in the sum
of Three Hundred Twenty-two Pesos (P322.00) with respect to the amount robbed,
and also to the damage and prejudice of the heirs of deceased Geronimo Miano and
Norberto Aton by reason of the death of these two persons.
Act committed contrary to the provisions of Art. 294, par. 1, of the Revised Penal
Code with the special aggravating circumstance that the crime was committed by a
band with the use of unlicensed firearms (Art. 296, Rev. Penal Code), and other
aggravating circumstances, as follows:
1. That the crime was committed in the dwelling of the offended parties without any
provocation from the latter;
2. That nighttime was purposely sought to facilitate the commission of the crime;
and.
3. That advantage was taken of superior strength, accused and their companions,
who were fully armed, being numerically superior to the offended parties who were
unarmed and defenseless.
When the case was called for trial on August 9, 1961, Atty. Tirol informed the court a quo that
he was appearing also for Apduhan, but only as counsel de oficio. In view of this
manifestation, the trial court appointed Atty. Tirol as counsel de oficio for the said accused.
Forthwith, Atty. Tirol manifested that Apduhan would change his former plea of not guilty to
a plea of guilty. The record discloses that after the trial, judge had repeatedly apprised
Apduhan of the severity of the offense for which he was indicted and the strong possibility
that the capital penalty might be imposed upon him despite a plea of guilty, Apduhan persisted
in his intention to plead guilty with the request, however, that the death penalty be not
imposed. Then after hearing the arguments of Provincial Fiscal Jesus N. Borromeo and Atty.
Tirol on the effect of articles 295 and 296 of the Revised Penal Code on the case at bar, the
trial judge advised the herein accused anew that he could be sentenced to death
notwithstanding his projected plea of guilty, but the latter reiterated his desire to confess his
guilt on the specific condition that he be sentenced to life imprisonment. Eventually, however,
Apduhan desisted from pleading guilty and let his previous plea stand on record after further
warnings that he faced the grave danger of being sentenced to death in view of the
circumstances of his case. But the aforesaid desistance was merely momentary as it did not
end the accused's equivocation on the matter of his plea. After a five-minute recess requested
by Atty. Tirol in order to confer with the accused, the former informed the court a quo that his
client would insist on entering a plea of guilty. The following appears on record:
Atty. D. TIROL:
Your Honor, please, I had a conference with the accused and I apprised him with the
situation of the case and after hearing our apprisal he manifested that he will insist
28
 on his entering a plea of guilty, Your Honor. I made it clear to him that we are not
forcing him to enter the plea of guilty.
COURT (To accused Apolonio Apduhan, Jr.)
Q. Is it true that you are withdrawing your plea of not guilty?
A. I will just enter the plea of guilty.
Q. Have you been forced to enter the plea of guilty by your lawyer?.
A. No, Sir.
Q. And why do you said "I will JUST enter the plea of not guilty"?
A. I have proposed to enter the plea of guilty even before.
Q. Now the Court warns you again. Are you conscious of the fact that
notwithstanding your plea of guilty the Court may impose upon you the penalty of
death?
A. I will just enter the plea of guilty, at the discretion of the Court.
Q. Even with all those dangers mentioned by the Court to you? .
A. Yes, Sir. (t.s.n. pp. 23-25).
Subsequently the prosecuting fiscal and the counsel de oficio resumed their oral arguments
regarding the effect on the instant case of articles 295 and 296, particularly the use of
unlicensed firearm as a special aggravating circumstance under the latter article. Also discuss
were the existence and effect of the alleged mitigating and aggravating circumstances. All of
these points will be later analyzed.
When the lower court subsequently reviewed the proceedings, it found that the accused's plea
of guilty was ambiguous. Hence, on August 30, 1961, the case was reopened with respect to
Apduhan, and on said date the latter entered a categorical plea of guilty, as evidenced by the
record:
COURT (To Accused Apduhan, Jr.):
The Court reopened this case because after a review of the proceedings it found that your plea
was not definite. In answer to a question of the Court you simply said "I will just enter the plea
of guilty". The Court wants to know whether you enter the plea of guilty of the crime charged
in the second amended information.
ACCUSED APDUHAN:.
I enter the plea of guilty.
COURT (To same accused Apduhan):
Q. Therefore, you admit that you have committed the crime charged in the second
information?
A. Yes, Your Honor.
Q. Is it necessary for you that the second amended information be read again?
A. No more; it is not necessary.
Q. Do you want that the second amended information be read to you again?
A. No more, Your Honor. (t.s.n. pp. 50-51).
On the same day, the court a quo rendered its decision, the pertinent dispositive portion of
which reads:.
PREMISES CONSIDERED, the Court renders judgment finding accused Apolonio
Apduhan, Jr., alias Junior guilty of the complex crime of robbery with homicide,
punished by Article 294 of the Revised Penal Code, in relation to Article 296 of the
game Code, as amended, and sentences him to suffer the penalty of death.
Considering that Apduhan had voluntarily confessed his guilt in open court, then the only
aspect of the case properly subject to review is the correctness of the penalty imposed by the
court a quo. In this respect, the appreciation of the use of unlicensed firearm as a special
aggravating circumstance (art. 296) in fixing the appropriate penalty for robbery with
homicide (Art, 294 [1]) committed by a band with the use of unlicensed firearms, and the
interplay and counter-balancing of the attendant mitigating and aggravating circumstances,
would determine the severity of the penalty imposable.
The disposition of the question at hand necessitates a discussion of the interrelation among
articles 294, 295 and 296 of the Revised Penal Code. For this purpose the said articles are
hereunder quoted:
ART. 294. Robbery with violence against or intimidation of persons Penalties.
Any person guilty of robbery with the use of violence against or intimidation of
any person shall suffer:
29
 1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed.
2. The penalty of reclusion temporal in its medium period to reclusion
perpetua, when the robbery shall have been accompanied by rape or
intentional mutilation, or if by reason or on occasion of such robbery, any
of the physical injuries penalized in subdivision 1 of article 263 shall have
been inflicted.
3. The penalty of reclusion temporal, when by reason or on occasion of
the robbery, any of the physical injuries penalized in subdivision 2 of the
article mentioned in the next preceding paragraph, shall have been
inflicted.
4. The penalty of prision mayor in its maximum period to reclusion
temporal in its medium period, if the violence or intimidation employed in
the commission of the robbery shall have been carried to a degree clearly
unnecessary for the commission of the crime, or when in the course of the
execution, the offender shall have inflicted upon any person not
responsible for its commission any of the physical injuries covered by
subdivisions 3 and 4 of said article 263.
5. The penalty of prision correccional in its maximum period to prision
mayor in its medium period in other cases. (As amended by Rep. Act 18.).
ART 295. Robbery with physical injuries, committed in an uninhabited place and by
a band, or with the use of firearm on a street, road or alley. If the offenses
mentioned in subdivisions three, four, and five of the next preceding article shall
have been committed in an uninhabited place or by a band, or by attacking a moving
train, street car, motor vehicle or airship, or by entering the passengers'
compartments in a train or, in any manner, taking the passengers thereof by surprise
in the respective conveyances, or on a street, road highway, or alley, and the
intimidation is made with the use of a firearm, the offender shall be punished by the
maximum period of the proper penalties. (As amended by Rep. Acts Nos. 12 and
373.) (Emphasis supplied) .
ART. 296. Definition of a band and penalty incurred by the members thereof.
When more than three armed malefactors take part in the commission of a robbery,
it shall be deemed to have been committed by a band. When any of the arms used in
the commission of the offense be an unlicensed firearm the penalty to be imposed
upon all the malefactors shall be the maximum of the corresponding penalty
provided by law, without prejudice to the criminal liability for illegal possession of
such unlicensed firearm.
Any member of a band who is present at the commission of a robbery by the band,
shall be punished as principal of any of the assaults committed by the band, unless it
be shown that he attempted to prevent the same. (As amended by Rep. Act No. 12).
(Emphasis supplied).
The afore-quoted art. 294 enumerates five classes of robbery with violence against
or intimidation of persons and prescribes the corresponding penalties. The case at
bar falls under art. 294(1) which defines robbery with homicide and fixes the penalty
from reclusion perpetua to death.
Article 295 provides, inter alia, that when the offenses described in subdivisions 3, 4 and 5 of
art. 294 are committed by a band, the proper penalties must be imposed in the maximum
periods. The circumstance of band is therefore qualifying only in robbery punished by
subdivisions 3, 4, and 5 of art. 294. Consequently, art. 295 is inapplicable to robbery with
homicide, rape, intentional mutilation, and lesiones graves resulting in insanity, imbecility,
impotency or blindness. If the foregoing classes of robbery which are described in art. 294(1)
and (2) are perpetrated by a band, they would not be punishable under art. 295, but
then cuadrilla would be a generic aggravating under Art. 14 of the Code.1 Hence, with the
present wording of art. 2952 there is no crime as "robbery with homicide in band." If robbery
with homicide is committed by a band, the indictable offense would still be denominated as
"robbery with homicide" under art. 294(1), but the element of band, as stated above, would be
appreciated as an ordinary aggravating circumstance.
Article 296, as quoted above, defines "band", creates the special aggravating circumstance of
use of unlicensed firearm, and provides the criminal liability incurred by the members of the
band. The ascertainment of the definite function and range of applicability of this article in
relation to articles 294 and 295 is essential in the disposition of the case at bar.
In imposing the death penalty, the trial court appears to have accorded validity to the
Provincial Fiscal's contention that in robbery with homicide committed by a band, the use of
unlicensed firearm must be appreciated as a special aggravating circumstance pursuant to art.
296. Thus convinced, the trial judge stressed in his decision that "under the express mandate of
the law, we cannot escape the arduous task of imposing the death penalty." Subscribing to the
said position, the Solicitor General adds that the "penalty for robbery under the circumstances
mentioned in Articles 294, paragraph 1, and 296 of the Code is the maximum of reclusion
perpetua to death, or the supreme penalty of death. This is mandatory." .
On the other hand, Atty. Alberto M. Meer, the accused's counsel de oficio in the present
review, contends that the use of unlicensed firearm, if ever appreciated in the case at bar, must
be considered a generic aggravating factor which "may be off-set by the existence of
mitigating circumstances so that the penalty to be imposed should be the penalty of reclusion
perpetua." .
Both the foregoing contentions are untenable.
After a perceptive analysis of the provisions of art. 296, we reach the considered opinion that
the said article is exclusively linked and singularly applicable to the immediately antecedent
provision of art. 295 on robbery in band, as the latter article, in turn, is explicitly limited in
scope to subdivisions 3, 4, and 5 of art. 294. Consequently, although the use of unlicensed
30
firearm is a special aggravating circumstance under art. 296, as amended by Rep. Act 12, 3 it
cannot be appreciated as such in relation to robbery with homicide, described and penalized
under paragraph 1 of art. 294.
As previously stated, art. 295 provides that if any of the classes of robbery described in
subdivisions 3, 4, and 5 of art. 294 is committed by a band, the offender shall be punished by
the maximum period of the proper penalty. Correspondingly, the immediately following
provisions of art. 296 define the term "band", prescribe the collective liability of the members
of the band, and state that "when any of the arms used in the commission of the offense be in
unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum
of the corresponding penalty provided by law." Viewed from the contextual relation of articles
295 and 296, the word "offense" mentioned in the above-quoted portion of the latter article
logically means the crime of robbery committed by a band, as the phrase "all the malefactors"
indubitably refers to the members of the band and the phrase "the corresponding penalty
provided by law" relates to the offenses of robbery described in the last three subdivisions of
art. 294 which are all encompassed within the ambit of art. 295. Evidently, therefore, art. 296
in its entirety is designed to amplify and modify the provision on robbery in band which is
nowhere to be found but in art. 295 in relation to subdivisions 3, 4, and 5 of art. 294. Verily, in
order that the aforesaid special aggravating circumstance of use of unlicensed firearm may be
appreciated to justify the imposition of the maximum period of the proper penalty it is a
condition sine qua non that the offense charged be robbery committed by a band within the
contemplation of art. 295. To reiterate, since art. 295, does not apply to subdivision 1 and 2 of
art. 294, then the special aggravating factor in question, which is solely applicable to robbery
in band under art. 295, cannot be considered in fixing the penalty imposable for robbery with
homicide under art. 294(1), even if the said crime was committed by a band with the use of
unlicensed firearms.
The legislative intent of making art. 296 corollary to art. 295 with respect to robbery in band
was unmistakably articulated by Congressman Albano in his sponsorship speech on H. B. No.
124 (subsequently enacted as Rep. Act No. 12, amending, among others, articles 295 and 296
of the Revised Penal Code). Said Congressman Albano: "Article 296 as a corollary of Article
295 would change the definition heretofore known of the term "band" under the law. The
purpose of this amendment is to inject therein the element of aggravation, when any member
of the band carries an unlicensed firearm . ." 4.
The special aggravating circumstance of use of unlicensed firearm, however, was initially
applicable to all the subdivisions of art. 294 since the said Rep. Act No. 12 also amended art.
295 to include within its scope all the classes of robbery described in art. 294. With the then
enlarged coverage of art. 295, art. 296, being corollary to the former, was perforce made
applicable to robbery with homicide (art. 294[1]). Thus, in People vs. Bersamin, 5 this Court,
in passing, opined: "The use of unlicensed firearm is a special aggravating
circumstanceapplicable only in cases of robbery in band (Art. 296, Revised Penal Code, as
amended by Section 3, Republic Act No. 12)." .
In the said case, this Court declared in effect that in robo con homicidio the use of unlicensed
firearm is not a special aggravating circumstance when the said offense is not committed by a
band. Inferentially, had the robbery with homicide in Bersamin been perpetrated by a band,
the use of unlicensed firearm would have been appreciated. This implied pronouncement
would have been justified under art. 296 in relation to art. 295, as amended by Rep. Act 12.
But the aforesaid inference lost all legal moorings in 1949 with the enactment of Rep. Act 373
which excluded subdivisions 1 and 2 of art. 294 from the coverage of art. 295. Since art. 296,
as repeatedly emphasized above, is corollary to art. 295, the diminution of the latter's scope
correspondingly reduced the former's extent of applicability. In other words, the passage of the
foregoing amendment did not only jettison the first two subdivisions of art. 294 from the
periphery of art. 295 but also removed the said subdivisions (which pertain, inter alia, to the
offense of robbery with homicide) from the effective range of art. 296.
Notwithstanding that the special aggravating circumstance of use of unlicensed firearm cannot
be appreciated in the instant case, we are constrained, in the final analysis, to observe that the
imposition of the death penalty on the accused Apduhan would appear to be a logical legal
consequence, because as against the attendant mitigating circumstances the aggravating
circumstances numerically and qualitatively preponderate.
After Apduhan had pleaded guilty, the defense counsel offered for consideration three
mitigating circumstances, namely, plea of guilty, intoxication, and lack of intent to commit so
grave a wrong. Subsequently, however, the defense withdrew the last mentioned mitigating
circumstance after the prosecution had withdrawn the aggravating circumstance of abuse of
superior strength. The following manifestations appear on record: .
"FISCAL BORROMEO: .
"In fairness to the accused, because the crime charged is robbery in band (the case at
bar is actually robbery with homicide), it is natural that in robbery in band there is
already abuse of superior strength, so we will just withdraw that superior strength.
"COURT (To Atty. D. Tirol): .
"What do you say now? .
"ATTY. D. TIROL: .
"Such being the case, we will not insist on presenting evidence in support of our
contention that the accused did not intend to commit so grave a wrong.
"COURT: .
"Moreover by the mere use of firearm the accused cannot claim that he did not
intend to commit so grave a wrong as that committed. So now you withdraw your
petition that you be allowed to present evidence to that effect? .
"ATTY. D. TIROL: .
"Yes, Your Honor." (t.s.n. pp. 47-48).
31
Thus, only two alleged mitigating circumstances remain for consideration.
Anent the plea of guilty, we believe that under art. 13 (7) its appreciation in the case
at bar is beyond controversion.
However, apropos the alternative circumstance of intoxication, we find no evidence
on record to support the defense's claim that it should be considered as a mitigating
factor. This absence of proof can be attributed to the defense's erroneous belief that
it was not anymore its burden to establish the state of intoxication of the accused
when he committed the offense charged since anyway the prosecution had already
admitted the attendance of the said mitigating circumstance on the ground that the
State did not have strong evidence to overthrow the accused's claim of non-
habituality to drinking. The record discloses the following pertinent discussion: .
"COURT (To Fiscal Borromeo):.
"Do you agree, Mr. Fiscal, that the non-habitual intoxication of the accused be also
taken into account in his favor as a mitigating circumstance? "FISCAL
BORROMEO: .
"We have no evidence exactly to know at this time that the accused was intoxicated,
but his affidavit states that before the commission of the crime they took young
coconuts and there is no mention about the taking of any liquor, so that, as it is now,
we are constrained to object.
"COURT (To the Fiscal): .
"But do you have evidence to counteract that allegation? .
"FISCAL BORROMEO: .
"We do not have any evidence to counteract that.
"COURT (To the Fiscal): .
"But do you not admit the attendance of that circumstance? .
"FISCAL BORROMEO: With that manifestation we submit because actually we do
not have evidence to counteract that he was a habitual drinker. "COURT (To the
Fiscal): .
"But do you prefer to admit that mitigating circumstance or you need that evidence
be presented to that effect? "FISCAL BORROMEO: .
"Inasmuch as we do not have strong evidence to contradict that circumstance in
fairness to the accused, we would rather submit.
"COURT (To the Fiscal): .
"The attendance of the mitigating circumstance of non-habitual intoxication? .
"FISCAL BORROMEO: .
"Yes, Your Honor." (t.s.n. pp. 7-9) (Emphasis supplied) .
From the above proceedings in the trial court, it would appear that what the prosecution
actually intended to admit was the non-habituality of the accused to drinking liquor, not as a
matter of fact, but due to the State's inability to disprove the same. The prosecution apparently
did not concede the actual intoxication of the accused. We are of the firm conviction that,
under the environmental circumstances, the defense was not relieved of its burden to prove the
accused's actual state of intoxication. Otherwise, to appreciate the attendance of a mitigating
factor on the mere allegation of the accused, coupled with the dubious acquiescence of the
prosecution, would open wide the avenue for unscrupulous and deceitful collusion between
defense and prosecution in order to unduly and unjustly minimize the penalty imposable upon
the accused.
The last paragraph of art. 15 of the Code provides:.
"The intoxication of the offender shall be taken into consideration as a mitigating
circumstance when the offender has committed a felony in a state of intoxication, if the same
is not habitual or subsequent to the plan to commit said felony but when the intoxication is
habitual or intentional it shall be considered as an aggravating circumstance. (Emphasis
supplied).
Under the foregoing provision, intoxication is mitigating when it is not habitual or intentional,
that is, not subsequent to the plan to commit the crime. However, to be mitigating the
accused's state of intoxication must be proved. 6 Once intoxication is established by
satisfactory evidence, 7 then in the absence of proof to the contrary" it is presumed to be non-
habitual or unintentional. 8 .
In People vs. Noble 9 the defendant testified that before the murder he took a bottle of wine
and drank little by little until he got drunk. The policeman who arrested the accused testified
that the latter smelled wine and vomited. The Court held that the evidence presented was not
satisfactory to warrant a mitigation of the penalty. Intoxication was likewise not competently
proved in a case 10 where the only evidence was that the defendant had a gallon of tuba with
him at the time he committed the crime.
In the case at bar the accused merely alleged that when he committed the offense charged he
was intoxicated although he was "not used to be drunk," 11This self-serving statement stands
uncorroborated. Obviously, it is devoid of any probative value.
32
To recapitulate, the accused has in his favor only one mitigating circumstance: plea of guilty.
As aforementioned, the defense withdrew its claim of "lack of intent to commit so grave a
wrong" and failed to substantiate its contention that intoxication should be considered
mitigating.
While an unqualified plea of guilty is mitigating, it at the same time constitutes an admission
of all the material facts alleged in the information, including the aggravating circumstances
therein recited. 12 The four aggravating circumstances are (1) band; (2) dwelling; (3)
nighttime; and (4) abuse of superior strength. The circumstance of abuse of superiority was,
however, withdrawn by the prosecution on the ground that since the offense of robbery with
homicide was committed by a band, the element of cuadrilla necessarily absorbs the
circumstance of abuse of superior strength. We believe that said withdrawal was ill-advised
since the circumstances of band and abuse of superiority are separate and distinct legal
concepts. The element of band is appreciated when the offense is committed by more than
three armed malefactors regardless of the comparative strength of the victim or victims.
Hence, the indispensable components of cuadrilla are (1) at least four malefactors and (2) all
of the four malefactors are armed. On the other hand, the gravamen of abuse of superiority is
the taking advantage by the culprits of their collective strength to overpower their relatively
weaker victim or victims. Hence, in the latter aggravating factor, what is taken into account is
not the number of aggressors nor the fact that they are armed, but their relative physical might
vis-a-vis the offended party.
Granting, however, that the said withdrawal was valid, there still remain three aggravating
circumstances which render inutile the solitary extenuating circumstance of plea of guilty. The
prosecution does not need to prove the said three circumstances (all alleged in the second
amended information) since the accused by his plea of guilty, has supplied the requisite proof.
13 Hence, we will not belabor our discussion of the attendance aggravating circumstances.
The settled rule is that dwelling is aggravating in robbery with violence or intimidation of
persons, 14 like the offense at bar. The rationale behind this pronouncement is that this class
of robbery could be committed without the necessity of transgressing the sanctity of the home.
Morada is inherent only in crimes which could be committed in no other place than in the
house of another, such as trespass and robbery in an inhabited house. 15 This Court in People
vs. Pinca, 16 citing People vs. Valdez, 17 ruled that the "circumstances (of dwelling and
scaling) were certainly not inherent in the crime committed, because, the crime being robbery
with violence or intimidation against persons (specifically, robbery with homicide) the authors
thereof could have committed it without the necessity of violating or scaling the domicile of
their victim." Cuello Calon opines that the commission of the crime in another's dwelling
shows greater perversity in the accused and produces greater alarm. 18.
Nocturnity is aggravating when it is purposely and deliberately sought by the accused to
facilitate the commission of the crime 19 or to prevent their being recognized or to insure
unmolested escape. 20 Nocturnidad must concur with the intent and design of the offender to
capitalize on the intrinsic impunity afforded by the darkness of night. 21 In the case at bar, the
affidavit (exh. I-1) of the accused Apduhan shows that he and his co-malefactors took
advantage of the nighttime in the perpetration of the offense as they waited until it was dark
before they came out of their hiding place to consummate their criminal designs.
In his decision, the trial judge recommends to, the President of the Republic the commutation
of the death sentence which he imposed on the accused to life imprisonment. The Solicitor
General supports this recommendation for executive clemency.
We find no compelling reason to justify such recommendation. Contrary to the trial judge's
observation, the accused's plea of guilty was far from "spontaneous" and "insistent". It will be
recalled that his initial plea was one of not guilty. Later, he changed his plea but with the
persistent condition that he be sentenced to life imprisonment, not death. It was only after
much equivocation that he finally decided to "just" plead guilty. Because his plea was still
ambiguous, the court a quo had to reopen the case to ascertain its real nature. Conceding,
however, that his plea was "spontaneous" and "insistent," such manifestation of sincere
repentance cannot serve to obliterate the attendant aggravating circumstances which patently
reveal the accused's criminal perversity.
It appears from a cursory reading of the decision under review that the trial judge also
anchored his recommendation on the ground that there is "the possibility that the firearm was
used in order to counteract the resistance of the deceased." This is no justification at all for
executive clemency. Firstly, the above observation is a mere conjecture - in the language of
the presiding judge, a "possibility." Secondly, even granting that the said observation relates to
the actual happening, to employ a firearm in subduing the lawful resistance of innocent
persons is a criminal act by any standard.
Even as we purge the decision under review of its errors, we must hasten to commend the trial
judge, the Hon. Hipolito Alo, for his earnest and patient efforts to forestall the entry of an
improvident plea of guilty by the accused Apduhan, notwithstanding that the latter was already
represented by a counsel de oficio and hence presumed to have been advised properly. Judge
Alo made sure that the accused clearly and fully understood the seriousness of the offense
charged and the severity of the penalty attached to it. When the accused proposed to confess
his guilt, Judge Alo repeatedly warned him that the death penalty might be imposed despite his
plea of guilty. As aforementioned, when it appeared that Apduhan's plea of guilty was
ambiguous, Judge Alo reopened the case to determine with definitiveness the nature of his
plea.
The virtue of Judge Alo's efforts in ascertaining whether Apduhan pleaded guilty with full
knowledge of the significance and consequences of his act, recommends itself to all trial
judges who must refrain from accepting with alacrity an accused's plea of guilty, for while
justice demands a speedy administration, judges are duty bound to be extra solicitous in seeing
to it that when an accused pleads guilty he understands fully the meaning of his plea and the
import of an inevitable conviction.
As a final commentary on the criminal conduct of the accused herein, it must be emphasized
that the instant review was delayed for several years because he escaped from the New Bilibid
Prisons on June 17, 1963, less than six months after he was committed to the said penitentiary.
He was recommitted on July 10, 1964 with a new mittimus from the Court of First Instance of
Leyte for robbery in band in criminal case 10099, for which he was sentenced to serve a prison
term of from 8 years and 1 day to 12 years and 1 day commencing on October 31, 1963. 22
His recommitment was reported to this Court only on July 5, 1966.
33
Notwithstanding the foregoing disquisition, for failure to secure the required number of votes,
the penalty of death cannot be legally imposed. The penalty next lower in degree - reclusion
perpetua - should consequently be imposed on the accused.

ACCORDINGLY, with the modification that the death sentence imposed upon Apolonio
Apduhan, Jr. by the court a quo is reduced to reclusion perpetua, the judgment a quo is
affirmed in all other respects, without pronouncement as to costs.

34
 EN BANC
G.R. No. L-51304-05 June 28, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARTIN MANDOLADO and JULIAN ORTILLANO, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Basilio V. Lanoria for defendants-appellants.
GUERRERO, J.:
The judgment of conviction rendered by the Court of First Instance of Cotabato, Branch I I,
Cotabato City dated June 28, 1979 sentencing the accused Martin Mandolado to the supreme
penalty of death in each case and the accused Julian Ortillano to imprisonment of six (6) years
of prision correccional as minimum to seventeen (17) years of prision mayor as maximum,
being merely an accessory, is before Us for mandatory review.
Under two (2) separate criminal informations dated January 5, 1978 filed by First Assistant
Provincial Fiscal Ismael G. Bagundang, the two accused- appellants, Martin Mandolado and
Julian Ortillano, draftees assigned with the Alpha Company, 3rd Infantry Battalion, Second
Infantry Division, Philippine Army with station at Pikit, North Cotabato, together with
Anacleto Simon and Conrado Erinada, trainees attached to the Headquarters & Headquarters
Company, 3rd Infantry Battalion, 2nd Infantry Division, Philippine Army, stationed at the
Army Detachment along Simuay Junction, Simuay, Sultan Kudarat, Maguindanao, were
accused of murder for the death of the victims Herminigildo Tenorio and his driver Nolasco
Mendoza with the use of their firearms in the afternoon of October 3. 1977 at Sultan Kudarat,
Maguindanao, qualified with the aggravating circumstances of treachery, evident
premeditation and abuse of superior strength.
Specifically, in Criminal Case No. 561, the information charged the accused as follows:
That on or about October 3, 1977 in the afternoon, in the Municipality of
Sultan Kudarat, Province of Maguindanao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused with intent
to kill, conspiring, confederating and helping one another with treachery,
evident premeditation and the use of superior strength all armed with high
powered weapons did then and there willfully, unlawfully, and
feloniously, and with the use of their guns shoot Mr. Nolasco Mendoza
hitting the latter on the different parts of his body causing his
instantaneous death.
Contrary to law with the aggravating circumstances of treachery, evident
premeditation, and the use of superior strength.
Similarly, in Criminal Case No. 562, the information reads:
That on or about October 3, 1977, in the afternoon, in the Municipality of
Sultan Kudarat, Province of Maguindanao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent
to kill, conspiring, confederating and helping one another with treachery,
evident premeditation and the use of superior strength all armed with high-
powered weapons did then and there willfully, unlawfully, and
feloniously, and with the use of their guns shoot Mr. Herminigildo Fajardo
Tenorio hitting the latter on the different parts of his body causing his
instantaneous death.
Contrary to law with the aggravating circumstances of treachery, evident
premeditation, and the use of superior strength.
The charges having been allegedly committed at the same place and occasion and involving all
the four (4) accused in each instance were jointly tried per order of the trial court dated
February 28, 1978 and after completion thereof, the two herein accused-appellants were found
guilty while the remaining two accused, Anacleto Simon and Conrado Erinada were acquitted.
We quote hereunder the dispositive portion of the decision now under review, to wit:
WHEREFORE, Martin Mandolado is found guilty beyond reasonable
doubt of the crime of murder in Criminal Case No. 562 for the killing of
Herminigildo Fajardo Tenorio, and also in Criminal Case No. 561 for the
killing of Nolasco Mendoza, with the aggravating circumstances of (1)
'advantage was taken of his being a draftee in the Philippine Army,' and
(2) 'abuse of confidence or obvious ungratefulness' without the presence of
any mitigating circumstances and is meted the following penalty, to wit;
In Criminal Case No. 562, for the killing of Herminigildo Tenorio, he is
sentenced to suffer the penalty of the crime in its maximum degree which
is death.
He shall pay the heirs of the deceased the amount of P12,000.00 for the
death of this victim, and the amount of P20,000.00 as moral and
exemplary damages.
In Criminal Case No. 561 for the killing of the driver, Nolasco Mendoza,
he is similarly sentenced to death.
He is to pay the heirs of said deceased the amount of P50,000.00 for the
death of said victim, and the amount of P100,000.00 as moral and
exemplary damages.
35
 In both Criminal Cases Nos. 561 and 562, on the grounds of reasonable
doubt, Anacleto Simon and Conrado Erinada are both found not guilty.
This case against them (Anacleto Simon and Conrado Erinada) is hereby
dismissed.
In Criminal Cases Nos. 561 and 562, Julian Ortillano was found guilty as
an accessory. He fired his M-16 armalite whenever Martin Mandolado
fired his machine gun and this could be for no other purpose than to
conceal or destroy the body of the crime in making it appear the victims
were fighting them or running away or that somebody else like the MNLF,
rebels, NPA or bandits committed the crime. Furthermore, in his own
admission, the purpose of their attempt to leave Mindanao for Bulacan
after this incident was to hide and wait for the time when Martin
Mandolado could succeed in settling this case which is evidence that he
assisted in the escape of the principal of the crime.
He is hereby sentenced in each of both cases to serve an imprisonment
term of six (6) years of Prision Correccional as the
minimum penalty, to seventeen (17) years of Prision Mayor as the maximum penalty.
Martin Mandolado and Julian Ortillano are to pay jointly and solidarily the
cost of this litigation.
SO ORDERED.
Given in the City of Cotabato, Philippines, the 28th day of June, 1979.
The facts are as stated in the People's Brief as follows:
In the morning of October 3, 1977, Julian Ortillano, Martin Mandolado,
Conrado Erinada and Anacleto Simon, trainees/draftees of the Armed
Forces of the Philippines and assigned to the 3rd Infantry Battalion of the
Philippine Army, were passengers of a bus bound for Midsayap, North
Cotabato (p. 8, t.s.n., Feb. 21, 1979). They alighted at the bus terminal in
Midsayap. Being all in uniform, armed and belonging to the same military
outfit, they got acquainted and decided to drink ESQ rum, at the said bus
terminal (pp. 10-11, Supra).
While drinking, Conrado Erinada and Anacleto Simon decided to join appellants in going to
Pikit, North Cotabato, home base of appellants (p. 59, Id.). After drinking for about an hour,
appellant Mandolado got drunk and went inside the public market. Subsequently, he returned,
grabbed his .30 caliber machine gun and started firing. His companions tried to dissuade him
but he nonetheless continued firing his gun (pp. 11-12, Supra).
Sensing trouble, Conrado Erinada and Anacleto Simon ran away, hailed and boarded a passing
Ford Fiera with some passengers on board. Appellants followed and boarded also the vehicle
(pp, 13-15, Supra). The soldiers forced the driver of the Ford Fiera to bring them to the
Midsayap crossing (p. 58, t.s.n., July 24,1978).
On their way, appellant Mandolado got his knife and tried to attack the driver (pp. 61-
62, Supra). After appellants alighted at said crossing, the Ford Fiera sped away. Appellant
Mandolado fired his .30 caliber machine gun at the speeding vehicle (p. 51, t.s.n., Jan. 17,
1979) hitting the right side of the back of the driver's sister who was then on board said
vehicle (p. 64, t.s.n., July 24, 1978).
While waiting for a ride at the Midsayap crossing a privately owned jeep, driven by
(
Herminigildo Tenorio, passed by. On board said jeep which was bound for Cotabato City were
Nolasco Mendoza S and two (2) others, but the latter two alighted at said crossing. Conrado
G
Erinada and Anacleto Simon boarded the jeep. Thereafter, appellants ran after the jeep, shout
at HerminigildoDTenorio the driver thereof, to stop the vehicle and subsequently, both
.
appellants Mandolado and Ortillano boarded the jeep (p. 34, Supra). On the way, both
appellants kept)firing their guns (pp. 54-55, t.s.n., Jan. 17, 1979) prompting Herminigildo
A "Kung hindi kayo tatahimik, ibabangga ko itong jeep" (Sworn Statement,
Tenorio to remark,
L
Exh. Q., Mandolado) which literally means, "if you will not stop firing your guns, I will ram
E
this jeep into something. "
J
A
Upon learning N that the jeep was bound for Cotabato City and not Pikit, North Cotabato,
appellant Mandolado
D got angry, "cocked" his gun and ordered the driver to stop (pp. 36-
38, Supra). While
R the jeep was coming to a full stop, Conrado Simon and Anacleto Erinada
immediately jumped
O off the jeep and ran towards their detachment camp located some two
hundred fifty meters
R away. Appellants also got off the jeep. Thereupon, appellant Mandolado
fired his .30 caliber
. machine gun at and hit the occupants of the jeep (Sworn Statement, Exh.
Q, Mandolado).e Appellant Ortillano likewise, fired his armalite, not at the occupants of said
jeep but downwards hitting the ground. These bursts of gunfire were heard by both Conrado
36
Erinada and Anacleto Simon who were then already about fifty meters away from the jeep
while running towards their detachment camp (pp. 38 and 42, t.s.n., Feb. 21, 1979). Although
it was then raining torrentially, Anacleto Simon recognized the bursts of gunfire as those of a
machine gun (p. 43, Supra).
Appellants ran away from the scene and boarded another vehicle, alighting at Pinaring
crossing. Appellant Mandolado proceeded to a house where he left his belongings and
changed his wet uniform (p. 104, Supra). After about an hour, they rode in a "Hino" passenger
bus bound for Midsayap. On board said bus was a certain Mr. Leopoldo Jalandoni who was
seated in front of the appellants.
The postmortem examination conducted by Dr. Taeb Zailon, Municipal Health Officer of
Sultan Kudarat, Maguindanao, upon the bodies of Tenorio and Mendoza on October 3, 1977,
were reduced into writing and reads as follows:
POST-MORTEM EXAMINATION REPORT
Post-mortem examination was performed at the Rural Health Center, Sultan Kudarat,
Maguindanao on October 3, 1977 at around 3:30 p.m. in the presence of police officers of
Sultan Kudarat, Maguindanao and personnel of the Health Center and other persons in the
vicinity.

Upon reaching a BPH building near Nuling, Sultan Kudarat, the passengers of said bus were PERTINENT PERSONAL DATA:
ordered to alight at the military check point but appellant Mandolado did not alight (pp. 10-13,
t.s.n., Oct. 5, 1975). As the bus was not proceeding to Pikit, North Cotabato and upon advice
of Mr. Jalandoni, appellants alighted at the Midsayap crossing and waited for a bus bound for Name: HERMINIGILDO TENORIO
Pikit (pp. 19-20, Supra).
Sex: Male
Appellants were able to ride on a sand and gravel truck which took them to Pikit, North
Cotabato, arriving thereat at about 3:00 o'clock in the afternoon. At their camp, appellants Age: 55 yrs. old
returned their firearms, but did not report the incident. In the evening, appellants attended a
party at the Pikit Elementary School (pp. 32-35, t.s.n., April 16, 1979). The following day, Height: 5'5'
appellants proceeded to Davao City but stopped at Kavocan where they stayed overnight.

Weight: 145 lbs.

Arriving at Davao City, the following morning, appellants went to see a movie and afterwards
proceeded to the Office of Doa Ana, a shipping firm (p. 40, Supra), where they saw a certain
Sgt. Villanueva who was then leaving for Luzon. Sgt. Villanueva informed the appellants that C.S.: Married
they were suspects in the Tenorio and Mendoza killings. Immediately thereafter, appellant
Mandolado purchased two passenger tickets for Manila. The other ticket was for appellant Residence: Midsayap, N. Cotabato
Ortillano (pp. 120-123, Supra). However, before appellants could board the ship bound for
Manila, they were apprehended by a team led by Lt. Licas (p. 45, Supra). Appellants were
Place of Death: Sultan Kudarat, Maguindanao
brought to Pikit, North Cotabato where they were investigated by Lts. Licas and Maburang
about the aforesaid killings. The following day, appellants were brought to the headquarters of
the 2nd MP Battalion at P.C. Hill, Cotabato City where they were again investigated. In said POST-MORTEM EXAMINATION FINDINGS
investigation, after appellants were duly apprised of their constitutional rights, they executed
and signed their respective sworn statements (Exhs. "O" and "R"). Appellant Mandolado 1. Avulsed cranial content at the level of forehead including eyeballs;
admitted the killing of Tenorio and Mendoza (Exh. "Q"); whereas appellant Ortillano admitted
his presence at said killings and of his having fired his armalite downwards after appellant
2. Wound-circular lacerate 3 inches in diameter T-T at lateral side of right deltoie region;
Mandolado fired upon the killed the afore-named victims (Exh. "R ").

3. Wound-1 in. circular wound at the right forearm T-T 4 inches below the elbow;
Silverio Balderosa, on October 3, 1977, at about 12:30 p.m., was on board a "Pinoy" jeep. On
his way home to Midsayap, he passed a jeep parked along the highway towards the direction
of Cotabato City and about 250 meters away from the BPH building. The parked jeep was 4. Comminuted fracture at right leg just below the knee cap;
surrounded by several persons. Alighting from the "pinoy" jeep, he went near the parked jeep
to see what happened. He saw the lifeless bodies of two persons, one sprawled along the 5. Comminuted fracture at right leg just above ankle;
highway whom he recognized as Nolasco Mendoza and the other whom he recognized as Mr.
Tenorio slumped on the wheel of the parked jeep (pp. 13-15, t.s.n., July 24, 1978).
6. Wound-1 in. circular non-penetrating at lateral side left arm;

37
7. Wound-1/2in.circularnon-penetrating at left region. 3. Wound-Circular, 3/4 inch wide, upper aspect of right deltoid muscle;

PROBABLE CAUSE OF DEATH 4. Wound-Circular, 1 1/2 inch wide, lateral aspect of right deltoid muscle; and

Hemorrhage severe secondary to multiple gunshot wounds. 5. Wound-Circular, 1 1/2 inch wide, lateral aspect of right breast 3 inches below arm pit.

Respectfully submitted: PROBABLE CAUSE OF DEATH

(SGD.) TAEB ZAILON, M.D. Wounds, gunshot, multiple shock, secondary hemorrhage, external-internal, extensive
Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. "N") Respectfully submitted:

POST-MORTEM EXAMINATION REPORT (SGD.) TAEB A. ZAILON, M.D.

Municipal Health Officer
Post-mortem examination report was performed at the Rural Health Center, Sultan Kudarat, Sultan Kudarat, Maguindanao (Exh. "P")
Maguindanao on October 3, 1977 at 3:30 p.m. in the presence of police officers, personnel of
the health center and other civilians. Acting upon the letter request of the commanding officer, Lt. Rodolfo Villanueva, a ballistic
test was conducted by Sgt. Leon Platoon of the P.C. Crime Laboratory at Cotabato City, on the
PERTINENT PERSONAL DATA: firearms issued to appellant Mandolado, Anacleto Simon and Conrado Erinada. In said test,
bullets were fired from said guns and the empty shells, called test specimen (T05-1 to T-05-3),
Name: NOLASCO MENDOZA together with the empty shells recovered from the scene of the crime called specimen
evidence, and the 10 links of cal. 30 machine gun, were forwarded to Camp Crame for
Ballistic Examination (pp. 20-24, t.s.n., October 6, 1978). Sgt. Platoon marked the 8 shells of
Sex: Male .30 caliber recovered from the scene of the crime as HT-1 to HT-8 and the armalite shells as
CM-9 to CM-13.
Age: 45 years old
In the ballistic examination conducted by Reynaldo Pasatiempo of the Camp Crame Criminal
Height: 5'4" Laboratory, it was found that the caliber .30 shells recovered from the scene of the crime (Exh.
"HT-1" to "HT-8 ") reveal Identical impressions as the test specimens of five empty shells
Weight: 135 lbs. ("T-05-1 to "T-05-3 ") fired from appellant Mandolado's machine gun. Whereas the armalite
shells recovered from the scene of the crime reveal non-identical impressions with the shells
fired from the armalites of Conrado Simon and Anacleto Erinada. He then concluded that the
C.S.: Married .30 caliber shells recovered from the scene of the crime were fired from the same machine gun
issued to appellant Mandolado (pp. 60-62, t.s.n., October 6, 1978).
Residence: Midsayap, North Cotabato
Appellants submit only one assigned error and that is, that the trial court erred in convicting
Place of Death: Sultan Kudarat, Maguindanao appellants Martin Mandolado and Julian Ortillano beyond reasonable doubt as principal and
accessory, respectively, of the crimes charged on the strength of the prosecution's evidence
totally disregarding the evidence of the defense. Appellants contend that their guilt was not
POST-MORTEM EXAMINATION FINDINGS
proven beyond reasonable doubt inasmuch as the circumstantial evidence of the prosecution
merely proved the fact of the deaths of Tenorio and Mendoza and not as to the actual
1. Wound -Circular, one inch wide, one inch above right eyebrow; perpetrators of the crime; that the evidence of the prosecution being weak on its own, the only
link of the appellant Mandolado to the killings is his extra-judicial sworn confession, Exhibit
2. Wound-Circular, 1/2 inch wide, lateral part of left side of neck: "Q", which he stoutly repudiates for being unlawfully taken under force and duress and in the
failure of the investigator to apprise him of his constitutional right to remain silent and to be
assisted by counsel.
38
It is contended by the defense that although the ballistic expert and the firearm examiner
testified that they conducted ballistic and firearm examinations, respectively and that their
finding was that the caliber .30 empty shells were fired from the machine gun issued to Martin
Mandolado, the prosecution failed to prove that the "evidence specimen" (Exh. "HT-1" " to
Exh. "HT-8") were the empty shells recovered from the scene of the crime, the prosecution not
having presented any witness who recovered these empty shells. It was not shown that these
empty shells were recovered from the scene of the crime nor that the slugs of these empty
shells caused the gunshot wounds which resulted in the death of the victims, Hence, the only
link of appellant Martin Mandolado with the empty caliber .30 shells was the fact that these
shells were fired from his machine gun, yet the records disclose that Mandolado accidentally
fired his machine gun at the Mintranco Terminal in Midsayap, North Cotabato, which is not
the scene of the crime, when he threatened the person who tried to steal his bag.
Appellant Mandolado's claim that he was not previously apprised of his constitutional rights
before he executed his extra-judicial confession, Exh. "Q ", deserves scant consideration. His
claim is clearly belied by the opening statements appearing in his sworn statement, which
reads, thus:
Preliminaries: Dft Martin Mandolado please be informed that you are now
under investigation by this unit in connection with the Shooting incident
that happened at National Highway particularly near the vicinity of the
BPH Office at Sultan Kudarat, Maguindanao on or about 031300H
October 1977. Before I ask you any questions, you must understand your
legal rights to wit: You have the right to remain silent. Anything you say
maybe used for or against you as evidence. You have the right to the
services of a lawyer of your own choice. If you cannot afford a lawyer and
you want one, a lawyer will be appointed for you before I ask you any
questions.
Question: Are these all clearly understood by you?
Answer: Yes, sir.
2. Q Do you wish now to proceed with this
investigation ever. in the absence of a lawyer of your
own choice?
A Yes sir.
3. Q Are you willing to give your statement without
being forced, coerced, intimidated or promised of any
reward whatsoever?
A Yes sir.
4. Q Now that you are about to testify under oath,
do you swear to tell the truth?
A Yes sir.
WAIVER
I have been advised of my legal right to remain silent; that anything I say
maybe used as evidence against me, and that I have the right to a lawyer to
be present with me while I am being questioned.
I understand these rights and I am willing to make a statement and answer
to questions. I do not want the assistance of a counsel and I understand
and know what I am doing. No promises or threats have been made to me
and no force or pressure of any kind have been used against me.t)
And with respect to the accused-appellant Julian Ortillano, the same preliminary questions
were made to him before his investigation and he answered similarly as his co-accused
Mandolado which is shown in Exhibit "R" and said Ortillano likewise executed the same
waiver as that of his co- accused, which is marked Exhibit "R-A".
The contention of both appellants that they signed their sworn statements (Exhibits Q and R)
because they were maltreated and forced, cannot be believed, not only for failure on their part
to present any evidence of compulsion, duress or violence but also because they even failed to
Identify their investigators who allegedly inflicted maltreatment to them, much less
complained to the officials who administered the oaths to their sworn statements of such
maltreatment, if any. Moreover, the sworn statements themselves contain significant and
important details which the affiants alone could have furnished, thereby clearly revealing the
voluntariness of said statements and rendering the same admissible as evidence. (People vs.
Rosales, 108 SCRA 339; People vs. Regular, 108 SCRA 23, 39; People vs. Tintero, 111
SCRA 714; People vs. Estero, 91 SCRA 93,99).
The conviction of appellant Mandolado for double murder appears to be based not only on his
extra-judicial confession (Exhibit Q) but also upon the following circumstances which proved
that he did shot and kill the victims, Tenorio and Mendoza, beyond peradventure of doubt.
And these are listed in the People's Brief, to wit: "(1) he repeatedly fired his .30 caliber
machine gun while intoxicated at the bus terminal in Midsayap (pp. 11-12, t.s.n., February 21,
1979); (2) that he fired at the Ford Fierra which took them in the Midsayap junction (p. 51,
Supra) hitting one of its passengers (p. 64, t.s.n., July 24, 1978); (3) that Anacleto Simon while
running away from the jeep driven by the deceased, heard a burst of machine gun fire coming
from the direction of the jeep (p. 42, t.s.n., February 21, 1979); (4) the result of the Ballistic
examination showing that the shells recovered from the scene of the crime were fired from the
gun issued to appellant Mandolado (pp. 60-62, t.s.n., October 16, 1978); (5) the attempted
flight of both appellants from justice (pp. 120-123, t.s.n., April 16, 1979) and which act clearly
indicates guilt for the 'wicked teeth where no man pursueth but the righteous are as bold as the
lion, and lastly (6) appellant's own admission before the lower court that he killed Tenorio and
Mendoza although he claims the same to be accidental (pp. 7-8, t.s.n., October 6, 1978). "
39
The killing of the two victims in the case at bar is correctly qualified as murder, there being
present the qualifying circumstance of treachery which is alleged in the informations. There is
treachery when the offender commits any of the crimes against the person, employing means,
methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might
make. (Art. 14, paragraph 16, Revised Penal Code). The prosecution evidence is quite clear
and explicit that when appellants alighted from the jeep, the accused Mandolado immediately
fired his .30 caliber machine gun at the occupants of the jeep, the victims Nolasco Mendoza
and Herminigildo Tenorio, and both of them died instantaneously on the spot, and from this
sudden means or manner of attack, it can reasonably be concluded that it tended directly to
insure its execution without risk to the appellant-assailant and also deprive the victims of any
chance or opportunity to defend themselves. We also rule that the particular means or manner
employed by the appellant-assailant was consciously or deliberately sought and not a mere
accidental circumstance resorted to on the spur of the moment on the basis of the evidence that
the appellant had previously and repeatedly fired his .30 caliber machine gun at the bus
terminal in Midsayap and had also fired the machine gun at the Ford Fiera which took them to
Midsayap junction and that appellants waited for sometime riding on board the jeep driven by
Tenorio before they ordered the jeep to stop, alight therefrom and then shoot the occupants
therein.
While the informations allege as aggravating circumstances that of evident premeditation and
the use of superior strength, aside from treachery, We cannot agree with the finding of the trial
court that the aggravating circumstances of (1) advantage was taken of his being a Draftee in
the Philippine Army, and (2) abuse of confidence or obvious ungratefulness were present in
the commission of the crime.
While it may be true that a soldier in the Armed Forces of the Philippines is deemed as one
who holds public position (U.S. vs. Gimenea, 24 Phil. 464, where a constabulary soldier was
held to be a public officer), there is no persuasive showing that herein appellants being
draftees of the Army, in full military uniform and carrying their high-powered firearms,
facilitated the commission of the crimes they were charged. It may be conceded that as
draftees, the accused could easily hitch hike with private vehicles, as in the case of the
deceased Tenorio's owner-type jeep, but there is no evidence that when they stopped the jeep
the accused already intended to shoot the occupants of the vehicle. As it was held in People
Pantoja, 25 SCRA 468, 471 which We reiterate that "There is nothing to show that the
appellant took advantage of his being a sergeant in the Philippine Army in order to commit the
crimes. The mere fact that he was in fatigue uniform and had an army rifle at the time is not
sufficient to establish that he misused his public position in the commission of the crimes ... "
There is also merit in appellants' contention that there could be no abuse of confidence as the
evidence on record showed the lack of confidence by the victims to the appellants, that this
confidence was abused, and that the abuse of the confidence facilitated the commission of the
crimes. In order that abuse of confidence be deemed as aggravating, it is necessary that "there
exists a relation of trust and confidence between the accused and one against whom the crime
was committed and the accused made use of such a relationship to commit the crime." (People
vs. Comendador, 100 SCRA 155, 172). It is also essential that the confidence between the
parties must be immediate and personal such as would give that accused some advantage or
make it easier for him to commit the crime; that such confidence was a means of facilitating
the commission of the crime, the culprit taking advantage of the offended party's belief that
the former would not abuse said confidence (People vs. Hanasan, 29 SCRA 534). In the
instant case, there is absolutely no showing of any personal or immediate relationship upon
which confidence might rest between the victims and the assailants who had just met each
other then. Consequently, no confidence and abuse thereof could have facilitated the crimes.
Similarly, there could have been no obvious ungratefulness in the commission of the crime for
the simple reason that the requisite trust of the victims upon the accused prior to the criminal
act and the breach thereof as contemplated under Article 14, par. 4 of the Revised Penal Code
are manifestly lacking or non-existent. In all likelihood, the accused Army men in their
uniforms and holding their high-powered firearms cowed the victims into boarding their jeep
for a ride at machine gun point which certainly is no source of gratefulness or appreciation.
The finding of the trial court that: "There is no doubt about Martin Mandolado's state of
intoxication. He was so drunk that even his three (3) companions armed with M-16 armalite
feared him. The same thing was true with the MPs," should credit said accused with the
mitigating circumstance of drunkenness but which the trial court decision failed to appreciate
in his favor. Accordingly, the penalty to be imposed upon the accused-appellant Mandolado
shall be reduced in the computation thereof.
With respect to the accused-appellant Julian Ortillano who was found guilty as an accessory in
Criminal Cases No. 561 and No. 562 for having fired his M-16 armalite whenever Martin
Mandolado fired his machine gun and, according to the court, this could be for no other
purpose than to conceal or destroy the body of the crime and making it appear that the victims
were fighting them or running away or that somebody else like the MNLF, rebels, NPA or
bandits committed the crime, and for assisting in the escape of the principal Martin
Mandolado) of the crime and sentenced in each of both cases to serve imprisonment for a term
of six (6) years of prision correccional as minimum to seventeen (17) years of prision
mayor as maximum, We find and hold that the accused-appellant Julian Ortillano should be
convicted, not as an accessory, but as an accomplice.
An accomplice cooperates in the execution of the offense by previous or simultaneous acts,
provided he has no direct participation in its execution or does not force or induce others to
commit it, or his cooperation is not indispensable to its accomplishment (Art. 18, Revised
Penal Code).
To hold him liable, upon the other hand, as an accomplice, it must be
shown that he had knowledge of the criminal intention of the principal,
which may be demonstrated by previous or simultaneous acts which
contributes to the commission of the offense as aid thereto whether
physical or moral (People vs. Silvestre, et al., 56 Phil, 353, 356). As aptly
stated in People vs. Tamayo (44 Phil. 38, 49): 'It is an essential condition
to the existence of complicity, not only that there should be a relation
between the acts done by the principal and those attributed to the person
charged as accomplice, but it is further necessary that the latter, with
knowledge of the criminal intent, should cooperate with the intention of
40
 supplying material or moral aid in the execution of the crime in an
efficacious way. (People vs. Custodia, 47 SCRA 289,303 [19721).
In the case at bar, Ortillano, by his acts, showed knowledge of the criminal design of
Mandolado. He was present when Mandolado tried to attack the driver of the Ford Fierra with
a knife and fired at the vehicle hitting a female passenger (p. 4, Decision). When Mandolado
got angry and "cocked" his gun and ordered Tenorio to stop the jeep, their two other
companions, Simon and Erinada, immediately jumped off the jeep and ran away, but Ortillano
stayed. In a display of unity with Mandolado, Ortillano fired his armalite while they were
riding in the jeep of the victim (p. 5, Decision). And Ortillano's act of firing his gun towards
the ground manifested his concurrence with the criminal intent. In other words, Ortillano's
simultaneous acts supplied, if not material, moral aid in the execution of the crime in an
efficacious way. Ortillano's presence served to encourage Mandolado, the principal, or to
increase the odds against the victims (U.S. vs. Guevara, 2 Phil. 528 [1903]; People vs.
Silvestre and Atienza, 56 Phil. 353 [1931]).
In convicting the accused Ortillano as an accomplice, We, however, appreciate the mitigating
circumstance of drunkenness in his favor, the same as We did to his co-accused Martin
Mandolado, the principal defendant.
In resume, the crime committed by the accused-appellant Martin Mandolado is murder,
qualified by treachery. There being no aggravating circumstance but having found and
appreciated drunkenness which is not habitual as a mitigating circumstance, the penalty
prescribed under Article 248 of the Revised Penal Code which is reclusion temporal in its
maximum period to death shall be imposed in its minimum period. Applying the Indeterminate
Sentence Law, the accused shall be sentenced to imprisonment of ten (10) years and one (;)
day of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day
of reclusion temporal as maximum in each case.
As to the accused-appellant Julian Ortillano, convicted as an accomplice to the crime of
murder, and appreciating in his favor the mitigating circumstance of drunkenness which is not
habitual, the penalty to be imposed upon him shall be one degree lower than that imposed for
murder (Article 52, Revised Penal Code), which will be in the minimum period. Applying the
Indeterminate Sentence Law, the accused Ortillano shall be sentenced to imprisonment of four
(4) years, two (2) months of prision correccional as minimum to ten (10) years and one (1) day
of prision mayor as maximum in each case.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the trial court is
hereby MODIFIED. The accused-appellant Martin Mandolado is hereby found guilty beyond
reasonable doubt of the crime of murder in Criminal Case No. 561 for the killing of Nolasco
Mendoza and in Criminal Case No. 562, for the killing of Herminigildo Tenorio. There being
no aggravating circumstance but having found and appreciated drunkenness which is not
habitual as a mitigating circumstance, said accused is hereby sentenced to suffer imprisonment
of ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four
(4) months and one (1) day ofreclusion temporal as maximum in each of the two cases.
The accused-appellant Julian Ortillano is hereby found guilty beyond reasonable doubt as
accomplice in the crime of murder in Criminal Case No. 561 for the killing of Nolasco
Mendoza and in Criminal Case No. 562 for the killing of Herminigildo Tenorio. Similarly,
there being no aggravating circumstance but having found and appreciated the mitigating
circumstance of drunkenness which is not habitual in his favor, said accused is hereby
sentenced to suffer imprisonment of four (4) years, two (2) months of prision correccional as
minimum to ten (10) years and one (1) day of prision mayor as maximum in each case.
In Criminal Case No. 561 for the killing of Nolasco Mendoza, We sentence both accused to
pay the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 as moral
damages. The liability of the accused shall be in solidum.
In Criminal Case No. 562 for the killing of Herminigildo Tenorio, We sentence both accused
to pay the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 for moral
damages. The liability of the accused shall also be in solidum.
Costs against the appellants. Judgment modified.
SO ORDERED.

With respect to damages, for the death of Herminigildo Tenorio, the award of P12,000.00 as
compensatory damages and P 20,000.00 for moral damages is hereby affirmed.

For the death of Nolasco Mendoza, We reduce the award of P50,000.00 as compensatory
damages to P12,000.00 We also reduce the award of P100,000.00 as moral damages to
P20,000.00.

The liability of the appellants for the above damages which shall be paid to the heirs of the
victims shall be in solidum (Article 110, par. 1, Revised Penal Code).

41
Manila
EN BANC
G.R. No. L-30449 October 31, 1979
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO GARCIA Y CABARSE alias "TONY MANOK" and REYNALDO ARVISO
V REBELLEZA alias "RENE BISUGO," defendants-appellants.
Wenceslao B. Trinidad for appellants.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and
Solicitor Adolfo J. Diaz for appellee.
ABAD SANTOS, J.:
This is an appeal from the decision of April 17, 1969 by the Circuit Criminal Court at Pasig,
Rizal, which found the accused guilty of murder and sentenced them to the death penalty.
The legal verdict hinges on the testimony of the lone eyewitness for the prosecution, Mrs.
Corazon Dioquino Paterno, sister of the deceased, Apolonio Dioquino, Jr. She testified that at
the time of the incident, she resided at Ventanilla Street, Pasay City. She lived at Pasay City
for about five months before moving to another dwelling at Timog Avenue, Quezon City.
While residing at Pasay City, she conceived a child and during this period, it was not unusual
for her, accompanied by her husband, to step out of the house in the wee hours of the morning.
They set out on these irregular walks about five times.
During her residence at Pasay City, her brother Apolonio visited her family for about twenty
times. Sometimes her brother would stay instead at their parents' house at Muntinlupa, Rizal.
He usually spent his weekends in his residence at Bo. Balubad, Porac, Pampanga. Apolonio
and her husband were very close to each other; whenever Apolonio paid them a visit, he
usually slept in the house and sought their help on various problems.
Before the incident which gave rise to this case, Corazon's husband informed her that he saw
Apolonio engaged in a drinking spree with his gang in front of an establishment known as
Bill's Place at M. de la Cruz Street. Pasay City. In her sworn statement before the Pasay City
Police executed on November 3, 1968, Corazon surmised that her husband must have been
painting the town red ("nag good time") in that same place. Upon learning this information
from her husband, Corazon obtained permission to leave the house at 3:00 a.m. so she could
fetch her brother. At that time, she had not been aware that Apolonio was in Pasay City; she
had been of the belief that he was with his family in Pampanga. She went to fetch him because
she wanted him to escape the untoward influence of his gang. In explaining the rationale for
her noctural mission, she employed in her sworn statement the following language: "Dahil
itong si Junior ay meron na kaming nabalitaan na naaakay ng barkada niya sa paggawa ng
hindi mabuti."
On her way, as she rounded the corner of P.C. Santos Street, Corazon saw her brother fleeing
a group of about seven persons, including the two accused, Antonio Garcia and Reynaldo
Arviso. She recognized the two accused because they were former gangmates of her brother;
in fact, she knew them before the incident by their aliases of "Tony Manok" and "Rene
Bisugo, " respectively.
Corazon saw that the chase was led by the two accused, with Antonio carrying a long sharp
instrument. Later, in the course of giving her sworn statement before the Pasay City Police on
, November 3, 1968, Corazon positively Identified Antonio and Reynaldo, who were then at
the office of the General Investigation Section, Secret Service Division, Pasay City Police
Department. She also stated that if she saw the other members of the group again, perhaps she
could likewise Identify them. At the trial, Corazon likewise pointed out the two accused.
During the incident, she exerted efforts to Identify the other group members, taking care to
conceal herself as she did so. She heard a gunshot which caused her to seek cover.
When she ventured to look from where she was hiding, about 20 meters away, she saw the
group catch up with her brother and maltreat him. Some beat him with pieces of wood, others
boxed him. Immediately afterwards, the group scampered away in different directions.
Antonio was left behind. He was sitting astride the prostrate figure of Apolonio, stabbing the
latter in the back with his long knife. Corazon was not able to observe where Antonio later
fled, for she could hardly bear to witness the scene.
When Corazon mustered the courage to approach her brother, she saw that he was bathed in a
pool of his own blood. The incident threw her in a state of nervous confusion, and she
resolved to report the incident to her younger sister, who lived at Lakandula Street, Pasay City.
Her sister in turn decided to break the news to their father at Muntinlupa.
Subsequently, Corazon learned that the police authorities were searching for her brother's
gangmates for having killed him. She also learned that the suspects were in hiding. On the
same day October 19, 1968 accompanied by her family, she went at 2:00 p.m. to the
Police Department to inquire about her brother's corpse. They were directed to the Funeraria
Popular, where an autopsy was held. Sometime later, on November 1, 1968, she transferred
residence to Quezon City.
Dr. Mariano Cueva, Jr. testified that he conducted a post-mortem examination on the cadaver
of the decedent Apolonio, and that he prepared the corresponding Necropsy Report. Dr. Cueva
found that the deceased suffered 22 stab wounds in the different portions of his hips; in the
front portion of the chest and neck; in the back portion of the torso; and in the right hand. He
testified that the wounds sustained by the deceased brought about a massive hemorrhage
which caused death. He also testified that it is possible that the instrument marked as Exhibit
"B" could have been used in inflicting the multiple stab wounds sustained by the deceased,
except the stab wounds on the neck.
42
Both the accused took refuge in the defense of alibi. Antonio Garcia claimed that at that time
of the incident starting with the chase and ending with the victim's death in the morning
of October 19, 1968, he was at a place called Pacita's Canteen which adjoins Bill's Place at M,
de la Cruz Street. Reynaldo Arviso claimed that in the evening of the preceding night (October
18, 1968) he went on a drinking spree with his friends at Pacita's Canteen. He went home at
10:30 p.m. and slept up to 7:00 a.m. of October 19, 1968. From 7:00 a.m. of that day, he
performed his duties as a bus conductor by calling for passengers near Pacita's Canteen.
The trial court pinpointed the issue as revolving around the Identity of the persons who
participated in the killing of the deceased. it banked on the testimony of the witness, Corazon
Dioquino, who positively Identified the accused as participants in the attack. Noting that "the
defense did not even attempt to present any evil motive on the part of the witness," the court
concluded that "the two accused took part in the perpetuation of the crime charged." It gave
short shrift to the defense of alibi presented by the two accused, noting that, by their own
admission, the two accused were residents of the vicinity of the crime.
In respect of the circumstances attending the crime it said:
But considering the aggravating circumstances of nighttime; superior
strength; and treachery, which three aggravating circumstances had been
sufficiently established by the prosecution, the same cannot be offset by
said voluntary surrender to a person in authority of his agent, plus the
uncontested fact that deceased, Apolonio Dioquino, Jr. suffered no less
than 22 stab wounds, convincing evidence of the apparent criminal
perversity of the accused, the court, therefore, has no alternative but to
impose the supreme penalty.
And rendered judgment as follows:
IN VIEW OF THE FOREGOING, the Court finds the accused, Antonio
Garcia v Cabarse and Reynaldo Arviso y Rebelleza, GUILTY, beyond
reasonable doubt, of the crime of Murder under Article 248, of the
Revised Penal Code, as charged under Article 248, of the Revised Penal
Code, as charged in the information, and considering the aggravating
circumstances surrounding the commission of the crime, each one of them
is hereby sentenced to suffer the penalty of DEATH.
The two accused are further ordered to indemnify, the heirs of the
deceased, Apolonio Dioquino, Jr. in the amount of TWELVE
'THOUSAND (P12,000,00) PESOS, jointly and severally and to pay their
proportionate share of the costs.
In their Brief, the accused contended that the lower court erred: in not considering nighttime
and superior strength as absorbed in treachery: in finding nighttime as an aggravating
circumstance despite absolute absence of evidence that nighttime was purposely sought to
insure the execution of the crime; in finding superior strength as an aggravating circumstance
despite absence of evidence to sustain such a finding; in finding treachery as an aggravating
circumstance despite absence of evidence to that effect; in not stating the qualifying
circumstance of the alleged crime; in holding that the accused Reynaldo Arviso stabbed and
hit the victim when there is no evidence as to the participation of the said accused Arviso in
the execution of the alleged crime; and in failing to consider the material inconsistencies,
prejudice and other circumstances in the uncorroborated testimony of the only eyewitness,
rendering said testimony not worthy of belief.
The assignment of errors by the accused is anchored on their attempt to discredit the lone
eyewitness for the prosecution, a function which, if successfully undertaken, would totally
obliterate the nexus between the accused and the crime. The defense vigorously maintained
that the testimony of the only eyewitness is a fabrication, and that she was in fact absent from
the scene which she described in both her sworn statement and in her testimony at the trial.
The defense asserted that Corazon Dioquino's testimony was riddled by material
inconsistencies. The defense sought to capitalize on the discrepancy of a sketch made by
Corazon and the sketch made by Pasay City Electrical Engineer Jaime Arriola. Corazon's
sketch shows Juan Sumulong Elementary School to be right in front of P.C. Santos Street;
while Arriola's sketch shows that the school is about 135 meters from the corner of the street.
The defense contended that the discrepancy was a deliberate falsehood on the part of the
witness,
Corazon testified that she was near the corner of P.C. Santos Street when she saw her brother
under chase in front of the school, and that she met the group in front of the school in a matter
of five seconds, more or less. The defense assailed her testimony on this point as incredible on
the ground that the distance between the point where she saw her brother being chased, up to
the point where she met them, is 135 meters, and no human being can cover that distance in
five seconds. Moreover, Corazon testified that she was 20 meters away from the place where
the accused caught up with her brother. Again, the defense criticized her testimony in this
respect by pointing out that the true distance is 175 meters.
The defense insisted that Corazon's sketch of the locale of the crime (Exhibit "1") constitutes
"the high point of falsity of her testimony." The defense sought to substantiate this claim by
arguing that from her sketch, it appears that she never crossed paths with her brother or his
pursuers. The witness testified that she saw her brother at the point which is four to five meters
from the corner of P.C. Santos Street. Yet she also testified that she saw the incident from 20
meters. The witness claimed she hid after hearing the shot at a point which is 170 meters from
the scene of the crime. The defense argued that she could not have covered the distance in
such a short time, and that this belies her claim that she was only 20 meters from the scene of
the crime. The defense pointed out that Arriola's sketch (Exhibit "2") shows that the school is
135 meters from the scene of the crime, and the point where the witness claimed she viewed
the crime is 170 meters from the scene of the crime thus giving the lie to her claim that she
was 20 meters away.
The alleged inconsistencies in Corazon's testimony which the defense makes much of
are not irreconcilable with the physical facts, At the outset, it should not be overlooked that
Corazon was testifying as an eyewitness to the traumatic incident by which her brother met a
violent death at the hands of a mob. Naturally, Corazon can not be expected to deliver a
43
testimony which passes microscopic scrutiny and scrupulous armchair analysis of the facts,
conducted under circumstances far removed from the turbulence and emotional color of the
event as it actually transpired. Al contrario, if Corazon's testimony were meticulously accurate
with respect to distance covered and the time taken to negotiate it, an impartial observer would
wonder whether such exactitude were not the product of previous rehearsal, if not of
fabrication. In times of stress, the human mind is frequently overpowered by the ebb and flow
of emotions in turmoil; and it is only judicious to take into consideration the natural
manifestations of human conduct, when the physical senses are subdued by the psychological
state of the individual.
Corazon was a resident of Pasay City for only about five months. She testified that she is not
familiar with the streets along M. de la Cruz Street. Moreover, Corazon did not categorically
testify that she covered the distance of 135 meters in five seconds. Mole accurately, she
testified that she walked for a period of from five to ten seconds, more or less. Put in this way,
the period was sufficient to allow her to negotiate the distance. Moreover, Corazon did not
stay rooted to one spot while the incident was taking place, but surreptitiously edged her way
up to Magtibay Street, which is closer to the place of the killing.
The defense also claims that the delay which Corazon allowed to transpire, before reporting
the crime to the authorities and giving her sworn statement (on November 3, 1968), is
indicative of fabrication. The killing took place before dawn of October 19, 1968, In the
afternoon of the same day, Corazon and her family went to the Police Department to inquire
about the remains of her brother. Corazon already knew that the police were taking steps to
round up the killers. She incurred no fault in waiting until the culprits were arrested before
confronting them and giving her statement. It would have been the better part of legal
procedure if she had given her statement earlier; but since she was only a 22-year old
housekeeper at that tune, she can not be held to a higher standard of discretion.
The defense further contends that the failure to present Corazon's husband in court indicates
that Corazon was not actually at the scene of the crime at 3:00 o'clock in the morning. It the
defense felt that the husband had a contribution to make in the cause of truth, there was
nothing which prevented them from compelling his process by summons. This they failed to
do; and their omission should not be taken to reflect adversely on the prosecution, who
evidently believed that the husband's testimony was unnecessary,
Finally, the defense claims that it was unnatural for Corazon, after viewing her brother's body,
to proceed to her sister's house one kilometer away, instead of returning to her own house,
which was just a block or so away. It is not unnatural for a witness to a gruesome event, to
choose to confer with a person bound to her by ties of consanguinity, even if such a
conference necessitates that she traverse a longer distance. The exercise of judgment, on the
spot, should not be gauged by reason applied in hindsight with a metrical yard stick.
The next major burden which the defense undertook to assume was to contend that the
accused Reynaldo Arviso is innocent because there is no evidence as to his participation in the
execution of the crime. It is claimed that there is absolute absence of evidence to show that
Reynaldo was a direct participant and that the only evidence against him is that he was seen
pursuing the victim. However, the finding of Reynaldo's guilt stems, not from his direct
participation in the criminal execution, but from his participation in the conspiracy to kill the
deceased. His participation in the conspiracy is supported by Corazon's testimony that he and
Antonio were the leaders of the pack following closely at the heels of the victim.
It is well established that conspiracy may be inferred from the acts of the accused themselves,
when such acts point to a joint purpose and design. A concerted assault upon the victim by the
defendants may indicate conspiracy. (PP v. Monroy & Idica, L-11177, Oct. 30, 1958, 104 Phil.
759). Conspiracy exists if, at the time of the commission of the offense, the defendants had the
same criminal purpose and were united in its execution. (PP v. Datu Dima Binahasing, L-
4837, April 28, 1956, 98 Phil. 902). Those who are members of the band of malefactors by
which a murder is committed and are present at the time and place of the commission of the
crime, thus contributing by their presence to augment the power of the band and to aid in the
successful realization of the crime, are guilty as principals even if they took no part in the
material act of killing the deceased. (US v. Abelinde, No. 945, Dec. 10, 1902, 1 Phil. 568;
People v. Carunungan, L-13283, Sept. 30, 1960, 109 Phil. 534). To establish conspiracy, it is
not essential that there be proof as to previous agreement to commit a crime. It is sufficient
that the malefactors have acted in concert, pursuant to the same objective. (PP vs. San Luis, L-
2365, May 29, 1950, 86 Phil. 485).
Conspiracy need not be established by direct evidence of acts charged, but may and generally
must be proven by a number of indefinite acts, conditions and circumstances which vary
according to the purpose to be accomplished. If it be proved that two or more persons aimed
by their acts towards accomplishment of the same unlawful object, each doing a part. so that
their acts, though apparently independent, were in fact connected and cooperative, indicating a
closeness of personal association and concurrence of sentiment, a conspiracy maybe inferred
though no actual meeting among them to concert is proven (PP v. Colman L-6652-54, Feb. 28,
1958, 103 Phil. 6). A conspiracy may be entered into after the commencement of overt acts
leading to the consummation of the crime. (PP v. Barredo, L-2728, Dec. 29, 1950, 87 Phil.
800). Conspiracy implies concert of design and not participation in every detail of execution
(PP v. Carbonel, L-24177, March 15, 1926, 48 Phil. 868; PP v. Danan, L-1766, March 31,
1949, 83 Phil. 252).
When a group of seven men, more or less, give chase to a single unarmed individual running
for his life, and they overtake him and inflict wounds on his body by means of shooting,
stabbing, and hitting with pieces of wood, there is conspiracy to kill; and it does not detract
from their status as conspirators that there is no evidence of previous agreement, it being
sufficient that their wills have concurred and they labored to achieve the same end.
The defense submits that the failure of the lower court to specify the qualifying circumstance
in the crime of murder is violative of the Constitution and the Rules of Court. We find no such
infirmity. Since the principle concerned is "readily understood from the facts, the conclusion
and the penalty posed., an express specification of the statute or exposition of the law is not
necessary." (People vs. Silo, L-7916, May 25, 1956, 99 Phil. 216). In the absence of a
specification by the trial court, the defense surmised that the qualifying circumstance in this
case is evident premeditation: but the defense argued that evident premeditation was not
shown. We agree. Under normal conditions, conspiracy generally presupposes premeditation.
But in the case of implied conspiracy, evident premeditation may not be appreciated, in the
absence of proof as to how and when the plan to kill the victim was hatched or what time
44
elapsed before it was carried out, so that it can not be determined if the accused had "sufficient
time between its inception and its fulfillment dispassionately to consider and accept the
consequences." There should be a showing that the accused had the opportunity for reflection
and persisted in executing his criminal design. (PP v. Custodia, L-7442, October 24,1955, 97
Phil. 698; PP v. Mendoza and Sinu-ag, L-4146 and L-4147, March 28, 1952, 91 Phil. 58; PP v.
Yturiaga, L-2816, May 31, 1950, 86 Phil. 534; PP v. Lozada, No. 46998, Nov. 16, 1940, 70
Phil. 525; PP v. Upao Moro, L-6771, May 28, 1957, Phil. 101 Phil. 1226; PP v. Sakam, No.
41566, Dec. 7, 1934, 61 Phil. 27: PP v. Peralta, L-19069, Oct. 29, 1968, 25 SCRA 759; PP v.
Pareja, L-21937, Nov. 29, 1969, 30 SCRA 693).
Even in the absence of evident premeditation, the crime of murder in this case might still be
qualified by treachery, which is alleged in the information. But the defense argued that
treachery was not present. We are so convinced. It is an elementary axiom that treachery can
in no way be presumed but must be fully proven. (US v. Asilo, No. 1957, Jan. 30, 1905, 4
Phil, 175; US v. Arciga, No. 1129, April 6, 1903, 2 Phil. 110; PP v. Durante, No. 31101, Aug.
23, 1929, 53 Phil. 363; PP v. Pelago, L-24884, Aug. 31, 1968, 24 SCRA 1027), Where the
manner of the attack was not proven, the defendant should be given the benefit of the doubt,
and the crime should be considered homicide only. (Carpio, 83 Phil. 509; Amansec, So Phil,
424).
In People vs. Metran (L-4205, July 27, 1951, 89 Phil. 543). the aggravating circumstances of
aid of armed men, abuse of superiority, and nocturnity, were considered as constituting
treachery, which qualified the crime as murder, since there was no direct evidence as to the
manner of the attack. However, in this case we believe that the correct qualifying circumstance
is not treachery, but abuse of superiority. Here we are confronted with a helpless victim killed
by assailants superior to him in arms and in numbers. But the attack was not sudden nor
unexpected, and the element of surprise was lacking. The victim could have made a defense;
hence, the assault involved some risk to the assailants. There being no showing when the
intent to kill was formed, it can not be said that treachery has been proven. We believe the
correct rule is found in People vs. Proceso Bustos (No. 17763, July 23, 1923, 45 Phil. 9),
where alevosia was not appreciated because it was deemed included in abuse of superiority.
We find that abuse of superiority attended the offense, following a long line of cases which
made this finding on parallel facts Our jurisprudence is exemplified by the holding that where
four persons attacked an unarmed victim but there was no proof as to how the attack
commenced and treachery was not proven, the fact that there were four assailants would
constitute abuse of superiority. (People vs. Lasada, No. 6742, Jan. 26, 1912, 21 Phil. 287; US
v. Banagale, No. 7870, Jan. 10, 1913, 24 Phil. 69). However, the information does not allege
the qualifying circumstance of abuse of superiority; hence, this circumstance can only be
Created as generic aggravating. (People v. Acusar, L-1798, Dee. 29, 1948, 82 Phil. 490;
People v. Beje, L-8245, July 19, 1956, 99 Phil. 1052; People v. Bautista, L-23303, May 20,
1969, 28 SCRA 184).
The offense took place at 3:00 o'clock in the morning. It may therefore be said that it was
committed at night, which covers the period from sunset to sunrise, according to the New
Civil Code, Article 13. Is this basis for finding that nocturnity is aggravating? The Revised
Penal Code, Article 14, provides that it is an aggravating circumstance when the crime is
committed in the nighttime, whenever nocturnity may facilitate the commission of the offense.
There are two tests for nocturnity as an aggravating circumstance: the objective test, under
which nocturnity is aggravating because it facilitates the commission of the offense; and
the subjective test, under which nocturnity is aggravating because it was purposely sought by
the offender. These two tests should be applied in the alternative.
In this case, the subjective test is not passed because there is no showing that the accused
purposely sought the cover of night time. Next, we proceed and apply the objective test, to
determine whether nocturnity facilitated the killing of the victim. A group of men were
engaged in a drinking spree, in the course of which one of them fled, chased by seven others.
The criminal assault on the victim at 3:00 a.m. was invited by nocturnal cover, which
handicapped the view of eyewitnesses and encouraged impunity by persuading the malefactors
that it would be difficult to determine their Identity because of the darkness and the relative
scarcity of people in the streets. There circumstances combine to pass the objective test, and e
find that nocturnity is aggravating because it facilitated the commission of the offense.
Nocturnity enticed those with the lust to kill to follow their impulses with the false courage
born out of the belief that they could not be readily Identified.
The information alleges that the crime of murder was attended by the two qualifying
circumstances of treachery and evident premeditation. Neither of these qualifying
circumstances was proved; hence, the killing can not be qualified into murder, and constitutes
instead the crime of homicide, which is punished by reclusion temporal. It is not controverted
that the accused voluntarily surrendered to the authorities; they are therefore entitled to the
mitigating circumstance of voluntary surrender. This lone mitigating circumstance offset by
the two generic aggravating circumstances of abuse of superiority and nocturnity, produces the
result that in the crime of homicide, one aggravating circumstance remains.
WHEREFORE, the judgment of the court a quo is hereby modified in that the two accused,
Antonio Garcia y Cabarse and Reynaldo Arviso y Rebelleza, are sentenced to undergo an
indeterminate imprisonment of 10 years as minimum to 18 years as maximum, but in all other
respects affirmed.
SO ORDERED.
45
 FIRST DIVISION
PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,
- versus -
ARMANDO RODAS[1] and JOSE RODAS, SR.,[2]
Accused-Appellants.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the Decision[3] of the Court of Appeals in CA-G.R. CR-HC No.
00289 which affirmed in toto the decision[4] of the Regional Trial Court (RTC) of Sindangan,
Zamboanga del Norte, Branch XI, convicting accused-appellants Armando Rodas and Jose
Rodas, Sr. of the crime of Murder.
For the death of one Titing Asenda, accused-appellant Jose Rodas, Sr., together with
his sons Charlito, Armando, and Jose Jr., all surnamed Rodas, were charged with murder in an
information which reads:
That, in the evening, on or about the 9th day of August, 1996, in the
municipality of Siayan, Zamboanga del Norte, within the jurisdiction of this
Honorable Court, the above-named accused, armed with a hunting knife,
firearm, chako and bolo, conspiring, confederating together and mutually
helping one another, with intent to kill, by means of treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously
attack, assault, beat, stab and hack one TITING ASENDA, thereby
inflicting upon him multiple wounds on the vital parts of his body which
caused his death shortly thereafter; that as a result of the commission of the
said crime the heirs of the herein victim suffered the following damages,
viz:
a) Indemnity for victims death . . . P50,000.00
b) Loss of earning capacity . . . . . . . P30,000.00
P80,000.00
CONTRARY TO LAW (Viol. of Art. 248, Revised Penal Code), with the
aggravating circumstances of nocturnity and abuse of superior strength. [5]
G.R. No. 175881
Present: When arraigned on 22 November 1996, the four accused, assisted by counsel de oficio, pleaded
YNARES-SANTIAGO, not guilty to the crime charged.[6]
Chairperson,
AUSTRIA-MARTINEZ, By agreement of the parties, pre-trial conference was terminated on 6 December
CHICO-NAZARIO, 1996.[7] Thereafter, trial on the merits commenced.
NACHURA, and
REYES, JJ. The prosecution presented five witnesses, namely: Alberto Asonda, Danilo Asenda, Ernie
Anggot, Blessie Antiquina and PO1 Pablo Yosores.
Promulgated: Before the prosecution could rest its case, accused Charlito Rodas[8] and Jose Rodas,
Jr. [9] withdrew their previous pleas of NOT GUILTY and entered their respective pleas of
August 28, 2007 GUILTY for the lesser crime of Homicide. Both were sentenced to suffer the indeterminate
penalty of 17 years, 4 months and 1 day to 20 years and were each ordered to indemnify the
heirs of the victim in the amount of P12,500.00 as damages.[10]
The prosecution formally offered Exhibits A to H, inclusive, with sub-markings.[11]
From the evidence adduced, the prosecutions version of the killing is as follows:
On 9 August 1996, Titing Asenda, a resident of Boyos, Sindangan, Zamboanga del Norte, was
at Milaub, Denoyan, Zamboanga del Norte, to help his brother, Danilo Asenda, in the
harvesting of the latters corn.
On the same day, at around 8:00 in the evening, a benefit dance at Milaub, which was sponsored
by Boboy Raquilme,[12] was being held. Among those roaming in the vicinity of the dance hall
were Alberto Asonda and Ernie Anggot. They stopped and hung out near the fence to watch the
affair. Titing Asenda was standing near them. They saw Charlito Rodas, Armando Rodas,
Jose Rodas, Jr., and Jose Rodas, Sr. surround Titing Asenda. Suddenly, without a
word, Charlito Rodas, armed with a hunting knife, stabbed Titing at the
back. Armando Rodas then clubbed Titing with a chako hitting him at the left side of the nape
causing him to fall. Thereafter, Jose Rodas, Sr. handed to Jose Rodas, Jr. a bolo which the latter
used in hacking Titing, hitting him on the left elbow. Alberto Asonda and Ernie Anggot tried to
help Titing but Armando Rodas prevented them by pointing a gun at them and firing it towards
the sky.
After the assailants left, Alberto Asonda and Ernie Anggot approached Titing Asenda who was
already dead. They informed Danilo Asenda that his brother was killed. The police arrived the
following day after being informed of the incident.
On the part of the defense, accused-appellants Armando Rodas and Jose Rodas, Sr., and Vilma
Rodas, the formers wife, took the witness stand. The defense rested its case without marking
and offering any documentary evidence.
46
 Defense evidence showed that only Charlito Rodas and Jose Rodas, Jr.
killed Titing Asenda. Appellant Jose Rodas, Sr. denied any participation in the killing
of Titing Asenda claiming he was not present in the benefit dance and that he was in his home
with his wife and infant granddaughter when the killing happened. He revealed that on the night
of the killing, his son, Charlito Rodas, who was carrying a hunting knife, arrived and told him
he killed somebody. He then brought his son to the municipal building of Siayan to surrender
him to the police authorities.
Appellant Armando Rodas likewise denied he was one of those who
killed Titing Asenda. He claimed that at the time of the killing, he was in his house sleeping
with his children. He denied using a chakoand firing a gun. He insisted it was his
brothers, Charlito and Jose Jr., who killed Titing Asenda because they pleaded guilty.
To bolster the testimony of the appellants, Vilma Rodas testified that she was at the
benefit dance when the killing happened. Armando and Jose Sr., she claimed, did not participate
in the killing. She said Charlito stabbed Titing while Jose Jr. merely punched the victim.
On 9 July 1998, the trial court promulgated its decision finding accused-appellants
Armando Rodas and Jose Rodas, Sr. guilty of the crime of Murder. The decretal portion of the
decision reads:
WHEREFORE, the Court finds the accused Jose Rodas, Sr. and Armando
Rodas guilty beyond reasonable doubt of MURDER as defined and
penalized under the Revised Penal Code, as amended under Section 6 of
Republic Act No. 7659 and hereby sentenced them to RECLUSION
PERPETUA each and to indemnify the heirs of the deceased, Titing
Asenda, P12,500.00 each or a total of P25,000.00.
COST de oficio.[13]
In finding accused-appellants guilty, the trial court gave credence to the testimonies
of eyewitnesses Alberto Asonda and Ernie Anggot. It found accused-appellants and the other
two accused conspired in the killing of the victim and that treachery attended the same. It gave
no weight to accused-appellants defense of alibi and denial arguing that they were positively
identified as the perpetrators and that they failed to adduce evidence that it was physically
impossible for them to be present at the crime scene when the killing happened. It added that
their unsubstantiated denial will not be given greater evidentiary value over the testimonies of
credible witnesses who testified on affirmative matters.
With a Notice of Appeal[14] filed by accused-appellants, the trial court forwarded the
entire records of the case to this Court.[15] However, pursuant to our ruling in People v.
Mateo,[16] the case was remanded to the Court of Appeals for appropriate action and disposition.
In its decision dated 28 July 2006, the Court of Appeals
affirmed in toto the RTCs decision.[17]
With the Court of Appeals affirmance of their convictions, accused-appellants are
now before this Court via a notice of appeal. With the appeal being timely filed, the records of
the case were elevated to this Court.
In our Resolution[18] dated 19 February 2007, the parties were required to file their
respective supplemental briefs, if they so desired, within 30 days from notice. Accused-
appellants manifested that since they had already filed the Appellants Brief, as well as Reply
and Supplemental Reply Brief, they are dispensing with the filing of the Supplemental Brief
because the latter will merely contain a reiteration of the arguments substantially discussed in
the former.[19] On the part of the Office of the Solicitor General, it manifested that considering
that the guilt of the appellants had already been discussed in the Appellees Brief, it was waiving
its right to file a Supplemental Brief.[20]
Accused-Appellants assign as errors the following:
I
THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-
APPELLANTS WERE ALSO PRESENT AT THE DANCE AND
PARTICIPATED IN ATTACKING THE VICTIM.
II
ASSUMING ARGUENDO THAT THE ACCUSED ARE GUILTY,
THEY ARE ONLY LIABLE FOR THE CRIME OF HOMICIDE.
On the first assigned error, appellants contend that the testimonies of prosecution witnesses
Alberto Asonda and Ernie Anggot should not be believed because they did not see the start of
the assault on Titing, and all they saw was him injured and lying down on the floor. They insist
that Asonda and Anggot could not have seen the killing because only a Petromax lighted the
place.
After a careful and meticulous review of the records of the case, we find no reason to
reverse the findings of the trial court, as affirmed by the Court of Appeals. We affirm appellants
conviction.
We find the evidence of the prosecution to be more credible than that adduced by
appellants. When it comes to credibility, the trial courts assessment deserves great weight, and
is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence. The reason is obvious. Having the full opportunity to
observe directly the witnesses deportment and manner of testifying, the trial court is in a better
position than the appellate court to evaluate properly testimonial evidence.[21]
It is to be noted that the Court of Appeals affirmed the findings of the RTC. In this
regard, it is settled that when the trial courts findings have been affirmed by the appellate court,
said findings are generally conclusive and binding upon this Court.[22] We find no compelling
reason to deviate from their findings.
The Court finds that Alberto Asonda and Ernie Anggot witnessed the killing
of Titing Asenda by Charlito Rodas, Armando Rodas, Jose Rodas, Jr. and Jose Rodas,
Sr. When Titing was killed, Asonda and Anggot were near him. Contrary to the claim of the
defense that the place where the killing occurred was not lighted enough for the assailants to be
identified, the place was sufficiently lighted by a Petromax as testified to by Vilma Rodas.[23]
47

Appellants make a big issue about the absence of a medical examination. Should they
be exonerated because of this? The answer is no.
A medical examination or a medical certificate is not indispensable in the case at
bar. Its absence will not prove that appellants did not commit the cime charged. They can still
be convicted by mere testimonial evidence, if the same is convincing. In the case at bar, the
testimonies of the two eyewitnesses, which the Court found to be credible, are sufficient to prove
the crime and its perpetrators.
Appellants defense of denial and alibi must likewise fail. Mere denial, if
unsubstantiated by clear and convincing evidence, has no weight in law and cannot be given
greater evidentiary value than the positive testimony of a victim.[24] Denial is intrinsically weak,
being a negative and self-serving assertion.[25]
Denial cannot prevail over the positive testimonies of prosecution witnesses who were
not shown to have any ill motive to testify against appellants. Absence of improper motive
makes the testimony worthy of full faith and credence.[26] In this case, appellants, who were
positively identified, testified that Asonda and Anggot had no ill motive to testify against
them.[27] Moreover, ill motive has no bearing when accused were positively identified by
credible eyewitnesses. Motive gains importance only when the identity of the culprit is
doubtful.[28]
Appellants also interposed the defense of alibi. No jurisprudence in criminal law is
more settled than that alibi is the weakest of all defenses for it is easy to contrive and difficult
to disprove, and for which reason it is generally rejected. [29] For the defense of alibi to prosper,
it is imperative that the accused establish two elements: (1) he was not at the locus criminis at
the time the offense was committed; and (2) it was physically impossible for him to be at the
scene at the time of its commission.[30] Appellants failed to do so.
In the case at bar, both appellants claimed that on the night Titing Asenda was killed,
they were one kilometer away. Thus, it was not possible for them to have been at the scene of
the crime when the crime was committed. The defense witnesses, however, gave conflicting
testimonies. Appellant Armando said his residence was more or less one kilometer away from
the crime scene[31] but Jose Sr. said it was only 50 meters away.[32] Jose Sr.[33] said the house
of Charlito was only 50 meters away from the crime scene but Armando said it was one
kilometer away.[34] Armando said his wife was in Dipolog City when the killing
happened,[35] but his wife said she witnessed the killing.[36] Armando said he and all the other
accused lived in separate houses,[37] but his wife revealed that Charlito lives with Jose
Sr.[38] Vilma Rodassaid after the killing, she immediately went home and told Armando that his
brothers killed somebody[39] but her husband said he only learned of it the next
morning.[40] What is more incredible is the fact that despite the testimony of Vilma Rodas that
she informed Armando of the killing, the latter never testified to this effect. All these negate
appellants claim that they were not at the crime scene when the killing took place.
The information alleged that appellants, together with Charlito and Jose Jr., conspired
in killing Titing Asenda. Article 8 of the Revised Penal Code provides that there is conspiracy
when two or more persons agree to commit a crime and decide to commit it. It is hornbook
doctrine that conspiracy must be proved by positive and convincing evidence, the same quantum
of evidence as the crime itself.[41] Indeed, proof of previous agreement among the malefactors
to commit the crime is not essential to prove conspiracy. It is not necessary to show that all the
conspirators actually hit and killed the victim; what is primordial is that all the participants
performed specific acts with such closeness and coordination as to indicate a common purpose
or design to bring about the victims death.[42] Once conspiracy is established, all the conspirators
are answerable as co-principals regardless of their degree of participation. In the contemplation
of the law, the act of one becomes the act of all, and it matters not who among the accused
inflicted the fatal blow on the victim.[43]
In this case, conspiracy was convincingly proven beyond reasonable doubt. All the
accused had the same purpose and acted in unison when they assaulted the victim. Surrounding
the victim, Charlito stabbed Titing Asenda at the back with a hunting knife. Armando next
clubbed the victim with a chako, hitting him on the left side of the nape, causing him to fall to
the ground. Jose Sr. then handed a bolo to Jose Jr. who used it in hacking the victim.
On the second assigned error, appellants argue that assuming arguendo they are
guilty, they are liable only for the crime of homicide, not murder. They contend that treachery
was absent since they, together with Charlito and Jose Jr., met the victim casually in the dance
hall.
The qualifying circumstance of treachery attended the killing. The essence of
treachery is the sudden and unexpected attack by the aggressor on an unsuspecting victim,
depriving the latter of any real chance to defend himself, thereby ensuring its commission
without risk to the aggressor, and without the slightest provocation on the part of the
victim.[44] In People v. Villonez,[45] we ruled that treachery may still be appreciated even when
the victim was forewarned of danger to his person. What is decisive is that the execution of the
attack made it impossible for the victim to defend himself or to retaliate.
In the case under review, the victim was completely unaware that he was going to be
attacked.[46] He was not forewarned of any danger to himself as there was no altercation or
disagreement between the accused and the victim. If treachery may be appreciated even when
the victim was forewarned, more so should it be appreciated when the victim was not, as in the
case at bar. The suddenness of the attack, the number of the accused and their use of weapons
against the unarmed victim prevent the possibility of any defense or retaliation by the
victim. The fact that the victim was already sprawled on the ground and still Jose Jr. hacked
him with a bolo clearly constitutes treachery.
The information also alleged that evident premeditation, nocturnity and abuse of
superior strength attended the killing.
For evident premeditation to be appreciated, the following elements must be
established: (1) the time when the accused decided to commit the crime; (2) an overt act
manifestly indicating that he has clung to his determination; and (3) sufficient lapse of time
between decision and execution to allow the accused to reflect upon the consequences of his
act.[47] Like any other circumstance that qualifies a killing as murder, evident premeditation
must be established by clear and positive proof; that is, by proof beyond reasonable
doubt.[48] The essence of premeditation is that the execution of the criminal act was preceded
by cool thought and reflection upon the resolution to carry out the criminal intent during a
space of time sufficient to arrive at a calm judgment. [49] In the case at bar, the prosecution
failed to show the presence of any of these elements.
48
 The aggravating circumstance of nocturnity cannot be considered against
appellants. This circumstance is considered aggravating only when it facilitated the
commission of the crime, or was especially sought or taken advantage of by the accused for
the purpose of impunity. The essence of this aggravating circumstance is
the obscuridad afforded by, and not merely the chronological onset of, nighttime. Although
the offense was committed at night, nocturnity does not become a modifying factor when the
place is adequately lighted and, thus, could no longer insure the offenders immunity from
identification or capture.[50]In the instant case, the prosecution failed to show that nighttime
facilitated the commission of the crime, or was especially sought or taken advantage of by the
accused for the purpose of impunity. The crime scene was sufficiently lighted by
a Petromax which led to the identification of all the accused.
The aggravating circumstance of abuse of superior strength attended the
killing. There was glaring disparity of strength between the victim and the four accused. The
victim was unarmed while the accused were armed with a hunting knife, chako and bolo. It is
evident that the accused took advantage of their combined strength to consummate the
offense. This aggravating circumstance, though, cannot be separately appreciated
because it is absorbed in treachery. In People v. Parreno,[51] we decreed:
As regards the aggravating circumstance of abuse of superior strength, what
should be considered is not that there were three, four, or more assailants as
against one victim, but whether the aggressors took advantage of their
combined strength in order to consummate the offense. While it is true that
superiority in number does not per se mean superiority in strength, the
appellants in this case did not only enjoy superiority in number, but were
armed with a weapon, while the victim had no means with which to defend
himself. Thus, there was obvious physical disparity between the
protagonists and abuse of superior strength on the part of the
appellants. Abuse of superior strength attended the killing when the
offenders took advantage of their combined strength in order to
consummate the offense. However, the circumstance of abuse of superior
strength cannot be appreciated separately, it being necessarily absorbed in
treachery.
As a final attempt to lower their conviction to Homicide, appellants, citing People v.
Alba,[52] argue that although treachery was alleged in the Information and proven according to
the trial court, the same was not specified as a qualifying circumstance. Such argument fails.
In People v. Aquino,[53] we have held that even after the recent amendments to the
Rules of Criminal Procedure, qualifying circumstances need not be preceded by descriptive
words such as qualifying or qualified by to properly qualify an offense. We explained:
Section 8 of Rule 110 requires that the Information shall state the
designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating
circumstances. Section 8 merely requires the Information to specify the
circumstances. Section 8 does not require the use of the words qualifying or
qualified by to refer to the circumstances which raise the category of an
offense. It is not the use of the words qualifying or qualified by that raises
a crime to a higher category, but the specific allegation of an attendant
circumstance which adds the essential element raising the crime to a higher
category.
In the instant case, the attendant circumstances of minority and
relationship were specifically alleged in the Information precisely to qualify
the offense of simple rape to qualified rape. The absence of the words
qualifying or qualified by cannot prevent the rape from qualifying as a
heinous crime provided these two circumstances are specifically alleged in
the Information and proved beyond reasonable doubt.
We therefore reiterate that Sections 8 and 9 of Rule 110 merely
require that the Information allege, specify or enumerate the attendant
circumstances mentioned in the law to qualify the offense. These
circumstances need not be preceded by the words aggravating/qualifying,
qualifying, or qualified by to be considered as qualifying circumstances. It
is sufficient that these circumstances be specified in the Information to
apprise the accused of the charges against him to enable him to prepare fully
for his defense, thus precluding surprises during the trial. When the
prosecution specifically alleges in the Information the circumstances
mentioned in the law as qualifying the crime, and succeeds in proving them
beyond reasonable doubt, the Court is constrained to impose the higher
penalty mandated by law. This includes the death penalty in proper cases.
xxxx
To guide the bench and the bar, this Resolution clarifies and
resolves the issue of how to allege or specify qualifying or aggravating
circumstances in the Information. The words aggravating/qualifying,
qualifying, qualified by, aggravating, or aggravated by need not be
expressly stated as long as the particular attendant circumstances are
specified in the Information.[54]
Under Article 248 of the Revised Penal Code, as amended by Republic Act No.
7659,[55] murder is punishable by reclusion perpetua to death. There being neither mitigating
nor aggravating circumstance in the commission of the felony, appellants should be sentenced
to reclusion perpetua, conformably to Article 63(2) of the Revised Penal Code.
We now go to the award of damages. When death occurs due to a crime, the following
damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual
or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate
damages.[56]
Civil indemnity is mandatory and granted to the heirs of the victim without need of
proof other than the commission of the crime.[57] We affirm the award of civil indemnity given
by the trial court and the Court of Appeals. Under prevailing jurisprudence,[58] the award
of P50,000.00 to the heirs of the victim as civil indemnity is in order. Both the trial court and
the Court of Appeals awarded P25,000.00 as civil indemnity because the two accused who
pleaded guilty to the lower offense of homicide were ordered to pay P25,000.00 or half of
49
the P50,000.00 civil indemnity. Considering that half of the P50,000.00 was already paid,
appellants should therefore pay only the difference.

As to actual damages, the heirs of the victim are not entitled thereto because said
damages were not duly proved with reasonable degree of certainty. [59] However, the award
of P25,000.00 in temperate damages in homicide or murder cases is proper when no evidence
of burial and funeral expenses is presented in the trial court. [60] Under Article 2224 of the Civil
Code, temperate damages may be recovered as it cannot be denied that the heirs of the victim
suffered pecuniary loss although the exact amount was not proved.[61]

Anent moral damages, the same is mandatory in cases of murder and homicide,
without need of allegation and proof other than the death of the victim.[62] The award
of P50,000.00 as moral damages is in order.

The heirs of the victim are likewise entitled to exemplary damages in the amount
of P25,000.00 since the qualifying circumstance of treachery was firmly established. [63]

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in
CA-G.R. CR-HC No. 00289 is AFFIRMED WITH MODIFICATION. Appellants
Armando Rodas and Jose Rodas, Sr. are found GUILTY beyond reasonable doubt of murder as
defined in Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659,
qualified by treachery. There being no aggravating or mitigating circumstance in the
commission of the crime, they are hereby sentenced to suffer the penalty
of reclusion perpetua. The appellants are ORDERED to pay, jointly and severally, the heirs
of TitingAsenda the amount of P25,000.00 as civil indemnity, P50,000.00 as moral
damages, P25,000.00 as temperate damages and P25,000.00 as exemplary damages. Costs
against the appellants.

SO ORDERED.

50
 EN BANC willfully, unlawfully and feloniously, with intent to gain, take, steal and
carry away with them the following.
G.R. No. L-30116 November 20, 1978
PROPERTY OF DONATA REBOLLEDO:
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. One jacket valued at P25.00
FAUSTO DAMASO, VICTORIANO EUGENIO, alias TURING, ESTANISLAO
GREGORIO alias ISLAO, LORENZO ALVIAR alias ORING AND BONIFACIO One necklace valued at 50.00
ESPEJO alias MARCIA, defendants, FAUSTO DAMASO, LORENZO ALVIAR,
BONIFACIO ESPEJO AND VICTORIANO EUGENIO, defendants-appellants. One earring valued at 25.00

One ring valued at 15.00

G.R. No. L-30117 November 20, 1978
One hat valued at. 5.00
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. Three scythes valued at . 3.60
LORENZO ALVIAR alias ORING, defendant-appellant.
A document valued at 2.30

Carlos, Valdez, Ibarra & Caunan Law Offices for appellants. Total. P125.90

Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Dominador L. Quiroz PROPERTY OF VICTORIANO DE LA CRUZ
and Solicitor Concepcion T. Agapinan for appellees.

Cash money in the amount P15.00

of
PER CURIAM:
PROPERTY OF SUSANA SABADO:
The penalty of death imposed on Fausto Damaso, Victoriano Eugenio Lorenzo Alviar and
Bonifacio Espejo by the Court of First Instance of Tarlac in its Criminal Case No. 2253 for
"robbery with double homicide" is now before this Court on automatic review together with a Cash money in the amount of 15.00
related case No. 2293 "for illegal possession of firearm and ammunition" involving only the
Ten bottles of liquor Bicolana;
accused, Lorenzo Alviar.
Six bottles of Cana Rum;
The Information in Criminal Case No. 2253 charged the accused therein of "robbery with
double homicide" alleged to have been committed as follows: One dozen Ligo Sardines;

One dozen Eatwell Sardines;

That on or about the 21st day of November, 1959, at nighttime, in the
Municipality of Victoria, Province of Tarlac, Philippines, and within the Six packages of Golden Star
jurisdiction of this Honorable Court, the above named accused, four of cigarettes;
whom are armed with a scythe and firearms, namely: Fausto Damaso with
a rifle, springfield Cal. 30, Victoriano Eugenio with a paltik Cal. 12 ga., three packages of cigarettes (Inyog);
Estanislao Gregorio with a scythe, and Lorenzo Alviar with a paltik Cal.
22, confederating, conspiring, helping and aiding one another, by means of and four packages of cigarettes
force, violence, threats and intimidation upon the persons of Donata
(La Ventaja) with a total value of. P21.02
Rebolledo, Victoriano de la Cruz and Susana Sabado, did then and there,
Total. P36.02
51
 Grand Total P176.92
to the damage and prejudice of the said owners in the respective amounts
of P125.90, P15.00 and P36,02, Philippine currency; that the said accused,
on the occasion of the commission of the crime above-mentioned, held
and brought Catalina Sabado and Susana Sabado, daughters of the said
Donata Rebolledo, to a sugarcane field which is a secluded and
uninhabited place, at Barrio Bangar, Victoria, Tarlac, and once there and
after tying together the respective forearms of the said Catatina Sabado
and Susana Sabado, in pursuance of their concerted conspiracy, by means
of force and grave abuse of superior strength, the said accused did then
and there, willfully, unlawfully and feloniously, stab the said Catalina
Sabado and Susana Sabado on different parts of their body and cut their
necks with a sharp pointed instrument (scythe), as a result of which the
latter died instantly.
That in the commission of the crime above mentioned, there concurred the
aggravating circumstances of (1) abuse of superior strength, (2) nighttime,
(3) uninhabited place, (4) by a band, (5) treachery, and (6) disregard of
sex. (pp. 116-117, rollo)
In Criminal Case No. 2293 Lorenzo Alviar was also charged of illegal possession of firearm
and ammunition, viz.
That on or about November 24, 1959, in the Municipality of Victoria,
Province of Tarlac, Philippines, and within the jurisdiction of this
Honorable Court, the above named accused, without authority of law, did
then and there, willfully, unlawfully and feloniously have in his
posssession and under his control a firearm, to wit; a paltik revolver
caliber 22 with eight (8) rounds of ammunition, without first obtaining the
corresponding license or permit to keep and possess the same. (pp. 117-
118, Ibid.)
The two cases were jointly heard by the trial court. In a joint decision rendered on December
10, 1968, by then Presiding Judge, Hon. Arturo B. Santos, all the accused were found guilty as
charged. In Criminal Case No. 2253 (robbery with double homicide) the accused Fausto
Damaso, Lorenzo Alviar, Bonifacio Espejo and Victoriano Eugenio were each sentenced to
suffer the "penalty of death, to indemnify the legal heirs of the victims, Catalina Sabado and
Susana Sabado, jointly and severally in the amount of P12,000.00 for each of the victims, plus
the sum of P15,00 which was the money taken by the accused, and to pay the costs, share and
share alike." One of the accused, Estanislao Gregorio, was no longer included in the sentence
because he died on April 6, 1967 while the cases were still undergoing trial.
In Criminal Case No. 2293, accused Lorenzo Alviar was sentenced "to three years
imprisonment and to pay the costs," 1
The evidence of the prosecution as found by the trial court establish the following incidents: 2
Donata Rebolledo and her son-in-law, Victoriano de la Cruz were residents of Barrio Bangar,
municipality of Victoria, province of Tarlac. At about 9 o'clock in the evening of November
21, 1959, Donata and Victoriano heard the barkings of dogs outside their house. Shortly, two
men armed with guns, entered, pointed their weapons at them, tied up the hands of Victoriano,
covered him with a blanket and asked Donata for the wereabouts of her daughter Catalina
Sabado. Stricken by fear, Donata kept silent and blocked the door leading to her daughter's
room but was promptly pushed aside. Donata was then ordered to open an "aparador" from
which the two men took valuables like jewelry, clothing, documents, and cutting instruments.
All the while, Donata and Victoriano could hear the movements and voices of some three to
four other persons beneath the house. The two men brought Catalina Sabado down from the
house and then asked where they could find Susana Sabado, Donata's other daughter who was
then in her store located about five meters away in the same house. Thereafter, Donata heard
the men opening the door to Susana's store. After several minutes, feeling that the intruders
had left, Donata untied the hands of Victoriano and asked him to go to the store to see if her
daughters were there. When the two women could not be found, Donata sent Victoriano to the
barrio lieutenant to report the incident. Accordingly, Victoriano went to the barrio lieutenant
and the two later went to town to inform the police of the occurrence.
On the same night, Chief of Police Pedro Valdez with the aid of several policemen and a
handful of civilians went out in search for the Sabado sisters. It was only the following
morning when the two women were found already dead with wounds in several parts of their
bodies. They were found in a sugar plantation belonging to one Ignacio Fabros, located about
one hundred meters from Donata Rebolledo's house.
Dr. Carlos Briones, Municipal Health Officer of Victoria performed the autopsy on the two
bodies and reported that the deaths were caused by profuse hemorrhage due to a fatal, big,
wide, gaping and deep lacerated wound just above the Adam's apple. He also testified in court
that the death weapon must have been a sharp instrument with a pointed tip, like a scythe.
A few days after the incident, Donata Rebolledo singled out the accused Fausto Damaso from
a police line-up as one of the men who went up to her house on that evening. She and
Victoriano had recognized Damaso because of the light coming from a kerosene lamp placed
on a small table near the "aparador." Damaso, however, initially denied ever having been to
Donata's house that night. Later, the PC rounded up four other suspects in the persons of co-
accused Gregorio, Eugenio Alviar and Espejo.
As further evidence, the prosecution presented separate extrajudicial statements, sworn to
before Municipal Judge Conrado de Gracia of Paniqui, Tarlac, wherein au the five accused
admitted having participated in the crime.
In his sworm statement marked as Exhibit "J", Fausto Damaso stated that he was with his co-
accused Gregorio, Eugenio, Alviar and Espejo on the night the Sabado sisters were killed; that
he never went into the house of Donata Rebolledo as Eugenio and Gregorio were the ones who
did; that it was Gregorio and Eugenio who actually did the killing while he, Alviar and Espejo
merely stood by; that the victims were stabbed and their throats cut with a reaping knife
52
(pangapas or lait); that the killing was motivated by the failure of the older woman (Catalina)
to pay for a carabao bought from Gregorio; and that on that evening, Gregorio, Eugenio,
Alviar and Espejo were carrying caliber .45 pistols while he was unarmed.
In a subsequent statement marked as Exhibit "P", Damaso reiterated his claim that it was
Gregorio who actually stabbed and cut the throats of the victims in the presence of all the
accused; that Catalina was killed ahead of Susana; that Gregorio killed Susana as she was
being held by Eugenio; and that while still in the house, they were able to get P15 from
Susana's store. Contrary to what he confessed in his previous sworn statements, he admitted
that it was he and Eugenio who went up to Donata Rebolledo's house and not Eugenio and
Gregorio. He also changed his theory as to the motive for the killings, declaring this time that
the two women were killed because the latter had already recognized them. He further stated
that on that night, he was armed with a caliber .22 (paltik) revolver, Eugenio with a 12-gauge
paltik, Gregorio with two reaping knives (lait), Lorenzo with a long firearm and Espejo with
two stones.
In this sworn statement, Exhibit "O", Victoriano Eugenio likewise admitted that he was a party
to the commission of the offense: that it was Gregorio who conceived of the plot to commit
the crime; that it was also Gregorio who killed the two women with a reaping knife; that after
Catalina was killed he held Susana by the arms as Gregorio stabbed her and cut her throat; that
Alviar, Damaso and Lorenzo were also with them that night; that he did not know what
motivated Gregorio to kill the victims; that he had no previous agreement with his co-accused
to kill the two women; that he and Damaso were the ones who entered Donata's house, took
P15 from the "aparador," brought down Catalina and also got Susana from another portion of
the house; that he was then armed with a 12- gauge paltik, Damaso with a caliber.22 paltik
revolver, Alviar with a Springfield caliber .30 rifle, Gregorio with a reaping knife and Espejo
with two stones; and that he was with the group that night because at about 7 o'clock in the
evening, Gregorio dropped by his house and invited him to Barrio Bangar where the crime
was committed.
In his separate statement (Exhibit "Q"), Estanislao Gregorio narrated that in the afternoon of
November 21, 1959, his four co-accused came and informed him of a plan to rob the Sabado
sisters, to which plan he agreed; that Damaso and Eugenio went up Donata Rebolledo's house,
got P15 in cash and brought out Catalina and Susana by force; that he stabbed and cut the
throats of the victims with all his co-accused present; that Eugenio held Catalina while
Damaso held Susana as he killed them both with a reaping knife; that the two women were
killed because they had recognized Eugenio and Damaso and might testify against them in
court; that during the commission of the crime, his only weapon was a reaping knife while
Alviar was carrying a caliber .22 paltik revolver, Damaso, a Springfield caliber .30 rifle,
Eugenio a 12-gauge single shot paltik and Espejo was unarmed.
Exhibit "N" is Bonifacio Espejo's sworn statement. Here he declared that he happened to be
with the group because Damaso and Eugenio invited him to Barrio Bangar and they dropped
by the houses of Alviar and Gregorio before actually proceeding to the barrio; that they had a
previous agreement to commit the crime; that they planned the same in a lot owned by a
certain Don Juan Garcia in Barrio Bangar; that it was Damaso and Eugenio who entered
Donata Rebolledo's house while he, Alviar and Gregorio were left downstairs to keep watch;
that they were able to get P15 from the house; that it was Gregorio who actually killed the two
women; and that Damaso and Eugenio were armed with a 12-gauge paltik and another long
arm the caliber of which he did not know; that Alviar had a caliber .22 paltik revolver,
Gregorio a knife and he had two big stones.
Substantially similar were the admissions of Lorenzo Alviar in his sworn statement (Exhibit
"R"). He likewise declared that he and his co-accused took P15 from the house of the victims;
that it was Gregorio who stabbed and cut the throats of the victims with a reaping knife; that
the killing was done in a sugarcane plantation between 10:00 and 11:00 o'clock in the evening
of November 21, 1959; that Catalina was killed before Susana; that he was armed with a
caliber .22 paltik revolver, Eugenio with a single shot, 12-gauge paltik, Damaso with a
Springfield caliber .30 rifle and Espejo with two stones. He claimed, however, that he was
only forced and intimidated by his co-accused to join the group.
At the trial, the five accused set up the defense of alibi and repudiated their respective sworn
statements alleging that these were obtained from them through duress, force and intimidation.
Instances of the use of third degree methods like boxing, pouring of "7-up" into the nostrils,
stripping of clothes, pricking of the penis, kicking and slapping of the ears were narrated by
the accused on the witness stand, all of which were not believed by the trial court.
The accused-appellants are here represented by a counsel de oficio, Atty. Clemente A.
Madarang, Jr., who filed an exhaustive brief for the accused.
Taken as a whole, the assigned errors boil down to the question of credibility and sufficiency
of the evidence to sustain the conviction of appellants for the special complex crime of
robbery with double homicide. It is argued that (a) there is no evidence of the alleged robbery;
(b) that the homicide was not committed by reason or on occasion of the robbery; and (c) that
the crime was not attended by the aggravating circumstances of armed band, treachery and
uninhabited place.
There is no merit to appellants' submittal.
1. That robbery was committed is evident from the declaration of prosecution witness Donata
Rebolledo who testified that the two men who barged into her house, one of whom she
recognized as Fausto Damaso, ordered her to open her "aparador" and then they took
therefrom the following items with their respective values a jacket-P25; a necklace P50;
earrings P25; a ring-P15; a hat-P5; scythes-P3.60; and documents worth P2.30. 3 Moreover
the appellants admitted in their separate statements that they were able to get P15 from
Donata's house. On this point, We agree with the Solicitor General that it matters not from
what part of the house the accused got the P15. What is important is that the culprits carried
away personal property belonging to another by the use of force, intimidation or violence. 4
2. Counsel points out that because there was a motive, at least on the part of Gregorio, for the
killing of the Sabado sisters, the double homicide could not have been "committed by reason
or on occasion of the robbery" as the law contemplates. He calls Our attention to the sworn
statement wherein Fausto Damaso declared that Gregorio killed Catalina and Susana because
Catalina bought a carabao from him and did not pay for it. Harping further on this motive
theory, counsel mentions such circumstances as why the accused specifically asked for
53
Catalina and Susana upon entering Donata Rebolledo's house and why Donata and Victoriano
were not killed together with the sisters if the purpose was to remove all opposition to the
robbery or to eliminate witnesses thereto.
As to Damaso's declaration, it should be noted that Damaso himself, in his subsequent sworn
statement, changed his motive theory and stated that the victims were killed in order to
eliminate witnesses to the crime. This was corroborated by Gregorio in the latter's own written
confession. Even assuming, however, that such a motive for vengeance existed on the part of
Gregorio, it does not necessarily exclude the fact that he and co-accused also intended, when
they went to Donata's house that night, to rob the family. In a complex crime of robbery with
homicide, while an intent to commit robbery must precede the taking of human life, the fact
that the intent of the culprit was tempered with a desire also to avenge grievances against the
person killed does not prevent the punishment of the accused for the complex crime. 5
3. Counsel for appellants also argues that the trial court erred in its appreciation of the
aggravating circumstances of armed band, treachery and uninhabited place.
The aggravating circumstance of band exists whenever more than three armed malefactors act
together in the commission of an offense. 6 Counsel concedes that at least three of the accused-
appellants, namely Eugenio, Alviar, and Gregorio, ,were armed during the commission of the
crime. He doubts, however, whether accused Damaso carried any weapon and whether the
"two stones" carried by accused Espejo fall under the category of "arms." But even granting
that Espejo's stones do not constitute arms, the prosecution presented the following evidence
to show that Damaso was also armed and, as such, there were more than three of the accused
who were armed: (1) that extrajudicial confession of Damaso himself (Exhibit "P") that he was
carrying a caliber .22 paltik revolver; (2) the sworn statement of accused Eugenio (Exhibit
"O") that Damaso had a caliber .22 paltik revolver; (3) the separate written confessions of
Alviar, Gregorio and Espejo (Exhibits R, Q, and "N") that Damaso had a caliber .30
Springfield rifle; and (4) the testimonies of Donata Rebolledo and Victoriano de la Cruz that
both men who entered their house (one of whom they later Identified as Damaso) were
carrying firearms. It is clear from the above, that Damaso was armed during the night of the
commission of the crime, and it is immaterial what kind of firearm he carried, the only
important thing being that he was armed. In this case, the presence of an armed band is to be
considered as a generic aggravating circumstance under Article 14(6) of the Revised Penal
Code inasmuch as the crime committed was that provided for and penalized in Article 294,
paragraph 1 and not under Article 295, Revised Penal Code (see People v. Apduhan, Jr., per
Justice, now Chief Justice Fred Ruiz Castro, 24 SCRA 798)
Treachery is present if the victim is killed while bound in such a manner as to be deprived of
the opportunity to repel the attack or escape with any possibility of success. 7 The fact that the
bodies of Catalina and Susana were found dead with their arms tied behind their backs as well
as the admission of Gregorio in his confession (Exhibit "Q") that he killed the sisters while
their arms were held by Eugenio and Damaso lead Us to conclude that the killing of the two
women was done under treacherous circumstances.
Anent the circumstances of uninhabited place, counsel disclaims its existence by pointing to
the proximity of the sugarcane field where the victims were killed to the national highway as
well as to certain houses in the barrio. The uninhabitedness of a place is determined not by the
distance of the nearest house to the scene of the crime, but whether or not in the place of
commission, there was reasonable possibility of the victim receiving some help. 8Considering
that the killing was done during nighttime and the sugarcane in the field was tall enough to
obstruct the view of neighbors and passersby, there was no reasonable possibility for the
victims to receive any assistance. That the accused deliberately sought the solitude of the place
is clearly shown by the fact that they brought the victims to the sugarcane field although they
could have disposed of them right in the house of Donata Rebolledo where they were found.
Thus, in People v. Saguing, the Court considered the crime as having been committed in an
uninhabited place because the killing was done in a secluded place at the foot of a hill,
forested, and uninhabited. 9
The trial court considered separately the three circumstances of armed band, treachery and
uninhabited place where under other situations one may be considered absorbed or inherent in
the other. There is ample justification for this. The elements of each circumstance subsist
independently and can be distinctly perceived thereby revealing a greater degree of perversity
on the part of the accused.
4. In the third assignment of error, defense counsel assails the sufficiency of the evidence for
the prosecution. He urges that the extrajudicial confessions, having been repudiated during the
trial, are insufficient to sustain the trial court's judgment of conviction, specially so since no
direct evidence was introduced of any conspiracy or of the involvement of appellants in the
crime in question.
Regarding this matter, the following are strongly persuasive. First, the appellants' separate
extrajudicial confessions were subscribed and sworn to before Municipal Judge Conrado de
Gracia of Paniqui, Tarlac. On the witness stand, Judge de Gracia testified as to the authenticity
and due execution of the statements. He declared that before the statements were sworn to
before him, he had the appellants' PC escorts excluded from the room. He then took pains in
translating and explaining to the appellants the contents of their written statements and got
their assurance that such statements were freely and voluntarily made. 10 If it were true that
appellants were forced or intimidated into making the confessions, they could have easily
manifested before the judge that they did not voluntarily give the same. Certainly, they could
have then been afforded the necessary protection from any untoward incident that could
happen. Their failure there and then to air any injustice or misdeed committed upon them
belies their stories of maltreatment. Too, there is no credible proof of the alleged maltreatment
that they suffered in the hands of the police or other authorities as a result of which they
executed the confessions. Considering that repudiation of confessions comes very easily, the
same must be taken with a grain of salt. it occurs all too often that guilty persons, after
confession to crime, experience a change of heart and repudiate their confessions in the hope
of escaping liability.
Secondly, there was the reenactment of the robbery and the killings. The movements
reconstructed by the appellants conform substantially with the details set forth in their
individual sworn statements. The reenactment was done in the presence of people, including a
photographer who had no connection with the police or the prosecution.
54
Fiscal Magin Taedo who was present during the reenactment testified that the entire
proceeding was spontaneous and free from coercion. On several occasions, appellants, even
corrected themselves in certain details. Nobody directed the whole show except the appellants
themselves. 11
Fiscal Taedo's testimony was corroborated by photographer Manuel Gamalinda who also
declared that there was no dictation, violence, force or intimidation employed upon the
appellants during the reenactment. 12 Gamalinda also testified as to the authenticity of the
pictures he took during the reenactment, which the prosecution also submitted as evidence. 13
Again, concerning the confessions, other circumstances are equally significant. Some of the
statements made, specifically the one of accused Alviar, were exculpatory in nature and would
not have been included had the confessant been coerced into making his confession. Others
cite plausible facts and details which only actual participants in the crime could have known.
Also, partial corroboration of appellants' statements are found in the testimonies of Donata
Rebolledo and Victoriano de la Cruz, more particularly, as to the robbery. As such, the
confessions, coupled by evidence of the corpus delictithe human remains of Catalina and
Susana Sabado, are sufficient bases for the trial court's declaration of guilt.
5. With regards to the defense of alibi, We find no justifiable reason for discarding the
findings of the trial court on this matter. In People v. Berdida, et al., this Court held that the
defense of alibi is an issue of fact that hinges on credibility, which depends much on the
credibility of the witnesses who seek to establish it. In this respect the relative weight which
the trial judge assigns to the testimony of the witnesses must, unless patently and clearly
inconsistent with the evidence on record, be accepted. The defense of alibi is worthless in the
face of positive Identification by prosecution witnesses, pointing to the accused as participants
in the crime. (17 SCRA 520, citing People v. Tansiangco,
L-19448, February 28,1964; People v. Rivera, L-14077, March 31, 1964)
6. As to conspiracy, the trial court's inference as to the existence of the same is well-founded
and is amply discussed in its decision. Said His Honor:
From the simultaneous and cooperative acts of the accused, the Court
finds and so holds that there was conspiracy among them. For conspiracy
to exist, direct proof is not essential The same may be inferred from the
acts of the conspirators in the commission of the offense. It is not essential
that each conspirator takes part in every act or that he should know the
exact part to be performed by the others in the execution of the conspiracy.
Conspiracy merely implies concert of design and does not require
participation in every detail of execution. Neither is it necessary to show
any previous plan or that the parties should actually come together and
agree in express terms in pursuing a common design. It is sufficient if it is
proved that the acts of the conspirators were in fact connected and
cooperative in accomplishing the unlawful object, thereby indicating a
closeness of personal association and concurrence of sentiments.
In the case of the accused herein, they got together and planned the
criminal act shortly before its execution; they proceeded together to the
house of the victims and, while Damaso and Eugenio went upstairs, the
other accused stayed under the house as lookout; once inside the house,
the two asked and demanded for the victims, forcibly dragged them
downstairs, handed them to those waiting under the house and, together as
a group, they brought the victims to the sugarcane field and mercilessly
stabbed them to death. Clearly, there was a concert of acts among the
accused aimed at one common design, and each act was connected to and
cooperative with the others.
The basic rule is that when conspiracy is established, like in the present case, the act of one
conspirator is imputable to the others and the criminal liability of each participant is the same
as those of the others.
7. On the matter of accused Lorenzo Alviar's conviction for illegal possession of firearms in
Criminal Case No. 2293, two errors are assigned. First, that the trial court had no jurisdiction
over the case because the same having been previously filed before the Justice of the Peace
Court of Victoria, Tarlac, which also acquired jurisdiction over the person of the accused, the
latter court acquired jurisdiction to the exclusion of all other courts.
This is untenable. That the Justice of the Peace Court has concurrent jurisdiction with the
Court of First Instance in this case is not questioned. It, however, appears from the order of the
justice of the Peace Court forwarding the records of the case to the Court of First
Instance 14 that the case was brought before the former court merely for purposes of a
preliminary investigation. Where a Justice of the Peace acquires jurisdiction for the purpose of
preliminary investigation and not for trial on the merits, such court does not necessarily
acquire exclusive jurisdiction to try the case on the merits. 15
In the second assigned error, counsel attacks the flimsiness of the evidence for the prosecution.
He questions the sufficiency of a document (Exhibit "B"), purportedly a receipt issued to
Alviar upon the confiscation from him of the alleged firearm. It is argued that from the manner
the receipt is worded as well as from the fact that it is thumb marked by Alviar and not signed
by the person confiscating, it appears to be a confession rather than a receipt.
The controversial receipt, however, is not the only evidence presented by the prosecution. Sgt.
Melencio Fiesta of the Philippine Constabulary also declared on the witness stand that Alviar
verbally confessed to him his (Alviar's) possession of a caliber .22 paltik revolver. 16 He
further stated that he properly translated from English to Ilocano the contents of the receipt
before Alviar affixed his thumbmark on the same. 17 Whether Exhibit " B " is taken as a
receipt or as a confession, it has its own weight as an evidence against appellant Alviar.
Still on the illegal possession of firearm, the prosecution also presented as evidence Exhibit
"C" properly sworn to before Judge Conrado de Gracia, wherein Alviar confessed that he did
own and possess a caliber .22 paltik which he carried on the night the robbery and killings
were committed. The voluntariness of this confession has not been disproved.
55
8. In conclusion, the crime committed by appellants in Criminal Case No. 2253 is robbery
with homicide defined in Article 294, paragraph 1, Revised Penal Code, to wit:

Robbery with violence against or intimidation of persons Penalties - Any

person guilty of robbery with the use of violence against or intimidation of
any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on

occasion of the robbery, the crime of homicide shall have been committed.

xxx xxx xxx

The penalty is to be imposed in its maximum period by reason of the presence of three
aggravating circumstances found by the trial court, to wit: that the robbery was committed by
a band, 18 with treachery, 19 and in an uninhabited place. 20 There is likewise the additional
aggravating circumstance that the robbery was committed in the dwelling of the victim.
Donata Rebolledo which although not alleged in the Information is however established by the
evidence.

IN VIEW OF THE FOREGOING CONSIDERATIONS, We hereby affirm in toto the

decision of the trial court in the two cases.

Without pronouncement as to costs at this instance.

SO ORDERED.

56
G.R. No. L-2390 April 24, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO BALDERA, MIGUEL BLAY, JOSE DE LA CRUZ, and FOUR
OTHERS, defendants.
PEDRO BALDERA, appellant.
August Francisco for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Florencio Villamor for
appellee.
REYES, J.:
We are called upon to review the sentence of death passed upon the appellant Pedro Baldera,
who was found guilty of robbery in band with homicide and serious and less serious physical
injuries by the Court of First Instance of Batangas.
The evidence shows that at about 4 a.m. on December 23, 1947, a Casa Manila bus loaded
with passenger left Batangas, Batangas, bound for Manila. On the highway in barrio
Calansayan, municipality of San Jose, same province, it was held up by a group of five or six
armed men. One of these, later identified as herein appellant Pedro Baldera, who was then
armed with a .45 caliber pistol, fired a shot, and this was followed by a hail of bullets coming
from different directions. As a result, several passengers, among them Jose Cabrera, Jose
Pastor and Francisco Mendoza, were wounded. After the firing had ceased, appellant got on
the bus and, threatening the passengers with his gun, took P90 from Jose Pastor and P34 from
Ponciana Villena. Another passenger named Francisco Mendoza was also relieved of his P3.
Appellant then alighted and ordered the bus to proceed, whereupon the driver headed for the
municipal building of San Jose and there reported the incident to the authorities. The wounded
were taken to the hospital, where Jose Cabrera died from his wounds on the following day.
Jose Pastor, who was wounded in the left leg, was cured in two months, while Francisco
Mendoza's gunshot wound in the right shoulder healed in 15 days.
For the above crime four persons were prosecuted and tried under an information charging
"robo en cuadrilla con homicidio y lesiones graves y lesiones menos graves." The case was
dismissed as to two of the accused due to insufficiency of evidence. But the other two, Pedro
Baldera and Miguel Blay, were, after trial, found guilty as charged and sentenced, the first to
capital punishment, and the second to life imprisonment, both to pay the corresponding
indemnity and proportionate costs.
Only the case against Pedro Baldera is now before us.
There is no dispute as to the perpetration of the crime. The only question is as to the
identification of this appellant as one of the authors thereof. On this point the evidence for the
prosecution shows that shortly after the commission of this crime, appellant was arrested in
the municipality of Batangas in connection with the theft of a radio, and as his features tallied
with the personal description of one of the highway men given to the chief of police by some
of the passengers of the held-up bus, he was also investigated in connection with the hold-up,
and he then made a confession, which was reduced to writing and later subscribed by him
before the justice of the peace, admitting his participation in the crime as the one who, armed
with a pistol, boarded the bus and though intimidation relieved Ponciana Villena of her
money.
At the trial, Ponciana also identified appellant as the one who relieved her of her money at
gunpoint, saying that she had a good look at his face for she was watching him closely for fear
that he might fire at her. She also declared that when she was sent for by the chief of police to
identify appellant, the latter approached her as she came into the office of said officer and
asked her forgiveness. Two other passengers of the bus declared at the trial that appellant
resembles the one who stopped the bus and robbed its passengers.
Testifying in his own defense, appellant denies participation in the crime charged, declaring
that he passed the night in question in a house of prostitution in Batangas, where he was
employed by the prostitutes for drawing water. But this alibi is without corroboration and can
not stand up against the clear and positive testimony of Ponciano Villena, who has not shown
to have any motive for falsely testifying against him.
Counsel de oficio impugns the admissibility of appellant's confession on the ground that the
same was made on a promise to render him protection from his co-accused and also to utilize
him as a government witness. But appellant himself denied that such a promise was ever made
and the record shows that, when the confession was offered in evidence, it was objected to the
sole ground that "it was taken through force and intimidation," which, however, was not
proved. Moreover, this court has already held that "where one of several codefendants turns
state's evidence on a promise of immunity ... but later retracts and fails to keep his part of the
agreement, his confession made under such promise may then be used against him."
(People vs. Panaligan and Andulan, 43 Phil., 131.) In any event, even without the said
confession, we find that appellant's participation in the crime herein charged has been clearly
and satisfactorily proved.
Counsel also contends that the lower court erred in holding that the crime committed is
robbery in band, alleging that there was no sufficient proof that the perpetrators thereof
numbered more than three armed men. The fact, however, that there were more than three
armed men in the group that held up the bus appears in appellant's own confession and is also
established by the uncontradicted testimony of one of the government witnesses. And the point
is really not material because in the crime of robbery with homicide it is not essential that the
robbery be in band, although that circumstance may be taken into account as an aggravation in
the imposition of the penalty. And even if it be not be taken into account as such in this case,
there would still remain the other aggravating circumstance that the robbery was perpetrated
by attacking a vehicle (art. 295, R. P. C.), which is not offset by any mitigating circumstance.
The lower court did, however, err in appreciating against the accused the circumstance of
recidivism by reason of his previous conviction for theft, it appearing that crime was
committed on or about December 30, 1947 (Exhibit E) while the offense now charged took
place seven days before that date.
57
In conclusion, we find appellant guilty of the crime of robbery with homicide and serious and
less serious physical injuries with two aggravating circumstances. But there being no
sufficient vote to impose the extreme penalty, appellant can be sentenced to life imprisonment
only.

Wherefore, reducing appellant's sentence to life imprisonment but increasing the indemnity to
be paid by him to the heirs of the deceased Jose Cabrera to P6,000, the judgement below as so
modified is affirmed, with costs against the appellant.

58
G.R. No. L-39913 December 19, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
RICARDO MELENDREZ Y NIETO, ET AL., defendants.
RICARDO MELENDREZ Y NIETO, appellant.
Consorio Gallego for appellant.
Office of the Solicitor-General Hilado for appellee.
AVANCEA, C.J.:
The text of the information filed against Ricardo Melendrez y Nieto and Elias Martinez in this
case, reads as follows:
That on or about the 15th day of June, 1933, in the municipality of Pasay, Province
of Rizal, Philippine Islands, within two and one-half (2 ) miles from the limits of
the City of Manila and within the jurisdiction of this court, the said accused
conspiring together and helping each other willfully, unlawfully and feloniously
forcibly broke open the door of the store located at No. 85 Cementina, Pasay, an
inhabited house belonging to and occupied by Tin Bun Boc, and once inside the said
store, with intent of gain and without the consent of the owner thereof, took, stole
and carried away therefrom the following personal properties of the said Tin Buc
Boc:
Money amounting to
One(1) Elgin watch, gold plated and a gold filled chain, valued at
One(1) Chinese ring, signet solid gold, valued at
One(1) buntal hat, valued at
Nine (9) small packages of "Camel" cigarettes
Nine (9) small packages of "Chesterfield" cigarettes
Three (3) cans of Milkmaid, valued at
Total
to the damage and prejudice of the said Tin Buc Boc in the total sum of seventy-six
pesos and sixty-eight centavos (P76.68), Philippine currency.
That the accused Ricardo Melendrez y Nieto is a habitual delinquent, he having been
previously convicted by final judgment of competent courts twice of the crime of
theft and once of the crime of estafa and having been last convicted of the crime
of estafa on September 3, 1932.
On the date of the trial of this case, Elias Martinez had not been yet apprehended, for which
reason only the other defendant Ricardo Melendrez y Nieto, who pleaded guilty to the charge,
was arraigned. Whereupon, the court found him guilty of the crime charged in the information
and sentenced him to eight years and one day of prision mayor, and to serve an additional
penalty of six years and one day of prision mayor for being a habitual delinquent. From this
judgment Ricardo Melendrez y Nieto appealed.
In this instance, counsel for the appellant contends that lack of instruction on the part of the
appellant should be considered as a mitigating circumstance in the commission of the crime.
However, aside from the fact that this court has repeatedly held in its various decisions that
lack of instruction cannot be considered as a mitigating circumstance in crimes of robbery, the
records of the case do not afford any basis on which to judge the degree of instruction of the
appellant inasmuch as no evidence was taken relative thereto, he having pleaded guilty.
However, the fact that the appellant pleaded guilty upon arraignment is a mitigating
circumstance which should be considered in his favor.
On the other hand, the fiscal contends that the aggravating circumstance of recidivism should
be taken into account against the appellant. This claim of the fiscal is in accordance with the
judgment rendered by this court in banc in the case of People vs. Aguinaldo (47 Phil., 728)
while the old Penal Code was in force. But the enforcement of the Revised Penal Code has
resulted in a difference of opinion regarding this point on the part of the members of this court.
For this reason, after reviewing all the decisions affecting the matter, rendered by this court
both in banc and in division, it is now held that the aggravating circumstance of recidivism
should be taken into account in imposing the principal penalty in its corresponding degree,
notwithstanding the fact that the defendant is also sentenced to suffer an additional penalty as
P30.26 a habitual delinquent.
25.00
The facts alleged in the information constitute the crime of robbery committed without the use
13.50
of arms in an inhabited house, the value of the articles taken being less than P250. In
4.50 accordance with article 299 of the Revised Penal Code, the penalty prescribed for said crime
1.35 is prision correccional in its medium degree. Inasmuch as there is a concurrence therein of
1.26 one mitigating and one aggravating circumstance, this penalty should be imposed in its
medium degree.
.81
Wherefore, it being understood that the principal penalty imposed upon the appellant is two
76.68 years, eleven months and eleven days, the judgment appealed from is hereby affirmed, in all
other respects with costs. So ordered.
Street, Malcolm, Villa-Real, Hull, Vickers, Imperial, Butte, and Diaz, JJ., concur.
59
Separate Opinions

ABAD SANTOS, J., concurring in part and dissenting in part:

I can not give my assent to the proposition that in the imposition of the penalty prescribed by
law for the crime committed by the appellant, the aggravating circumstance of recidivism
should be taken into consideration. The appellant is a habitual delinquent, and under our law
and upon the facts of this particular case, recidivism is an inherent element of habitual
delinquency.

Article 14, paragraph 9, of the Revised Penal Code, defines a recidivist as follows:

A recidivist is one who, at the time of his trial for one crime, shall have been
previously convicted by final judgment of another crime embraced in the same title
of this Code.

And article 62, paragraph 5 (c), of the same Code, defines a habitual delinquent as follows:

For the purposes of this article, a person shall be deemed to be habitual delinquent,
if within a period of ten years from the date of his release or last conviction of the
crimes of robo, hurto, estafa, or falsification, he is found guilty of any said crimes a
third time or oftener.

It seems clear from the provisions of law above quoted that if, within a period of ten years
from the date of his release or last conviction of the crime of robo, hurto, estafa,
or falsification, a person be found guilty of the same crime for the second time, he would be a
recidivist; and if he be found guilty for the third time or oftener, he would be deemed a
habitual delinquent. The law determines the effect to be given to a second conviction, and it
also determines the effect to be given to a second conviction, and it also determines the effect
of a third, fourth, and fifth conviction. In imposing the penalty prescribed for the third, fourth
or fifth conviction of any of the crimes mentioned, it seems to me beyond the purpose of the
law to take again into consideration the legal effect of the previous, second conviction.

Except as above stated, I agree with the decision of the court.

60
 EN BANC
G.R. L-No. 5292 August 28, 1909
THE UNITED STATES, plaintiff,
vs.
THE MORO MANALINDE, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Ramon Diokno for defendant.
TORRES, J.:
Between 2 and 3 o'clock on the afternoon of the 19th of January, 1909, while Juan Igual, a
Spaniard, was seated on a chair in the doorway of Sousa's store in Cotabato, Moro Province,
he suddenly received a wound on the head delivered from behind and inflicted with a kris.
Ricardo Doroteo, a clerk in the said store, who was standing behind the counter, upon hearing
the noise and the cry of the wounded man, ran to his assistance and found him lying on the
ground. Meanwhile the aggressor, the Moro Manalinde, approached a Chinaman named Choa,
who was passing along the street, and just as the latter was putting down his load in front of
the door of a store and was about to enter, attacked him with the same weapon, inflicting a
severe wound in the left shoulder, on account of which he fell to the ground. The Moro, who
came from the rancheria of Dupit and had entered the town carrying his weapon wrapped up in
banana leaves, in the meantime escaped by running away from the town. Both wounded men,
the Chinaman and the Spaniard, were taken to the hospital, where the former died within an
hour, the record not stating the result of the wound inflicted on the Spaniard Juan Igual.
In view of the above a complaint was filed by the provincial fiscal with the district court
charging Manalinde with the crime of murder, and proceedings having been instituted, the trial
judge, in view of the evidence adduced, rendered judgment on the 5th of February of said
year, sentencing the accused to the penalty of death, to indemnify the heirs of the deceased in
the sum of P1,000, and to pay the costs. The case has been submitted to this court for review.
From the above facts fully substantiated in this case, it appears beyond doubt that the crime of
murder, defined and punished by article 403 of the Penal Code, was committed on the person
of the Chinaman Choa, in that the deceased was unexpectedly and suddenly attacked,
receiving a deep cut on the left shoulder at the moment when he had just put down the load
that he was carrying and was about to start for the door of the store in front of which he
stopped for the purpose of entering therein. As a result of the tremendous wound inflicted
upon him by the heavy and unexpected blow, he was unable, not only to defend himself, apart
from the fact that he was unarmed, but even to flee from the danger, and falling to the ground,
died in an hour's time. It is unquestionable that by the means and form employed in the attack
the violent death of the said Chinaman was consummated with deceit and treachery (alevosia),
one of the five qualifying circumstances enumerated in the aforesaid article as calling for the
greatest punishment.
When Manalinde was arrested he pleaded guilty and confessed that he had perpetrated the
crime herein mentioned, stating that his wife had died about one hundred days before and that
he had come from his home in Catumaldu by order of the Datto Rajamudah Mupuck, who had
directed him to go juramentado in Cotabato in order to kill somebody, because the said
Mupuck had certain grievances to avenge against a lieutenant and a sergeant, the said datto
further stating that if he, Manalinde, was successful in the matter, he would give him a pretty
woman on his return, but that in case he was captured he was to say that he performed the
killing by order of Maticayo, Datto Piang, Tambal and Inug. In order to carry out his intention
to kill two persons in the town of Cotabato he provided himself with a kris, which he
concealed in banana leaves, and, traveling for a day and a night from his home, upon reaching
the town, attacked from behind a Spaniard who was seated in front of a store and, wounding
him, immediately after attacked a Chinaman, who was close by, just as the latter was placing a
tin that he was carrying on the ground and he was about to enter a store near by, cutting him
on the left shoulder and fleeing at once; he further stated that he had no quarrel with the
assaulted persons.
From the statements made by the accused his culpability as the sole-confessed and self-
convicted author of the crime in question has been unquestionably established, nor can his
allegation that he acted by order of Datto Mupuck and that therefore he was not responsible
exculpate him, because it was not a matter of proper obedience. The excuse that he
went juramentado by order of the said datto and on that account killed only two persons,
whereas if he had taken the oath of his own volition he would have killed many more, because
it is the barbarous and savage custom of a juramentado to kill anyone without any motive or
reason whatever, can not under any consideration be accepted or considered under the laws of
civilized nations; such exhibitions of ferocity and savagery must be restrained, especially as
the very people who up to the present time have been practicing such acts are well aware that
the established authorities in this country can never allow them to go unpunished, and as has
happened a number of times in towns where juramentados are in the habit of appearing, the
punishment of the author has followed every crime so committed.
In the commission of the crime of murder the presence of aggravating circumstances 3 and 7
of article 10 of the Penal Code should be taken into consideration in that promise of reward
and premeditation are present, which in the present case are held to be generic, since the crime
has already been qualified as committed with the treachery, because the accused confessed
that he voluntarily obeyed the order given him by Datto Mupuck to go juramentadoand kill
some one in the town of Cotabato, with the promise that if he escaped punishment he would be
rewarded with a pretty woman. Upon complying with the order the accused undoubtedly acted
of his own volition and with the knowledge that he would inflict irreparable injury on some of
his fellow-beings, depriving them of life without any reason whatever, well knowing that he
was about to commit a most serious deed which the laws in force in this country and the
constituted authorities could by no means permit. Datto Mupuck, who ordered and induced
him to commit the crimes, as well as the accused knew perfectly well that he might be caught
and punished in the act of committing them.
As to the other circumstance it is also unquestionable that the accused, upon accepting the
order and undertaking the journey in order to comply therewith, deliberately considered and
carefully and thoughtfully meditated over the nature and the consequences of the acts which,
under orders received from the said datto, he was about to carry out, and to that end provided
61
himself with a weapon, concealing it by wrapping it up, and started on a journey of a day and
a night for the sole purpose of taking the life of two unfortunate persons whom he did not
know, and with whom he had never had any trouble; nor did there exist any reason which, to a
certain extent, might warrant his perverse deed. The fact that the arrangement between the
instigator and the tool considered the killing of unknown persons, the first encountered, does
not bar the consideration of the circumstance of premeditation. The nature and the
circumstances which characterize the crime, the perversity of the culprit, and the material and
moral injury are the same, and the fact that the victim was not predetermined does not affect
nor alter the nature of the crime. The person having been deprived of his life by deeds
executed with deliberate intent, the crime is considered a premeditated one as the firm and
persistent intention of the accused from the moment, before said death, when he received the
order until the crime was committed in manifestly evident. Even though in a crime committed
upon offer of money, reward or promise, premeditation is sometimes present, the latter not
being inherent in the former, and there existing no incompatibility between the two,
premeditation can not necessarily be considered as included merely because an offer of
money, reward or promise was made, for the latter might have existed without the former, the
one being independent of the other. In the present case there can be no doubt that after the
crime was agreed upon by means of a promise of reward, the criminal by his subsequent
conduct showed a persistency and firm intent in his plan to carry out the crime which he
intentionally agreed to execute, it being immaterial whether Datto Mupuck did or did not
conceive the crime, once Manalinde obeyed the inducement and voluntarily executed it.

The facts in this case are quite different from those in the proceedings instituted by the United
States vs. Caranto et al., wherein the decision on page 256 of Volume IV of the Philippine
Reports was rendered, as may be seen from the mere perusal of the statement of facts. It is also
different from the case where a criminal who has made up his mind to kill a certain individual
kills a person other than the object of his criminal intent. On going to Cotabato the Moro
Manalinde intended to and did kill the first two persons he encountered, and the fact that the
victim was not predetermined does not alter the nature, conditions, or circumstances of the
crime, for the reason that to cause the violent death of a human being without any reasonable
motive is always punishable with a more or less grave penalty according to the nature of the
concurrent circumstances.

For the above reasons and in view of the fact that no mitigating circumstance is present to
neutralize the effects of the aggravating ones, it is our opinion that the judgment appealed
from should be affirmed with costs provided however, that the penalty imposed on the culprit
shall be executed in accordance with the provisions of Acts. Nos. 451 and 1577, and that in the
event of a pardon being granted he shall likewise be sentenced to suffer the accessory
penalties imposed by article 53 of the Penal Code. So ordered.

62
G.R. No. 94308 June 16, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN E. ILAOA and ROGELIO E. ILAOA, accused-appellants.
The Solicitor General for plaintiff- appellee.
Buen Zamar for accused- appellants.
BELLOSILLO, J.:
Pfc. Reynaldo P. Angeles was dispatched in the early morning of 5 November 1987 to Tinio
St., Sta. Maria Phase I, Balibago, Angeles City, where the decapitated body of a man, later
identified through his voters identification card as Nestor de Loyola, was found in a grassy
portion thereof. Apart from the decapitation, the deceased bore forty-three (43) stab wounds in
the chest as well as slight burns all over the body. The head was found some two (2) feet away
from the corpse.
Five persons, Ruben E. Ilaoa, Rogelio E. Ilaoa, Rodel E. Ilaoa, Julius Eliginio and Edwin
Tapang, were charged for the gruesome murder of Nestor de Loyola. However, only the
brothers Ruben and Rogelio stood trial since the other accused escaped and were never
apprehended.
On 15 June 1990, the Regional Trial Court of Angeles City found Ruben and Rogelio guilty of
murder with the attendant circumstances of evident premeditation, abuse of superior strength
and cruelty, and imposed upon them the penalty of "life imprisonment." 1 The conviction was
based on the following circumstantial evidence:
One. The deceased Nestor de Loyola was seen at about eleven oclock in the evening of 4
November 1987, in a drinking session with his compadre Ruben Ilaoa together with Julius
Eliginio, Edwin Tapang and a certain "Nang Kwang" outside Rubens apartment. 2
Two. The drunken voices of Ruben and Nestor engaged in an apparent argument were later on
heard. 3 Nestor was then seen being kicked and mauled by Ruben and his brother Rodel, Julius
Eliginio and Edwin Tapang. 4 Nestor was crying all the while, "Pare, aray, aray!" Afterwards,
Nestor, who appeared drunk, was seen being "dragged" 5 into Ruben Ilaoas apartment. Nestor
was heard saying, "Pare, bakit ninyo ako ginaganito, hirap na hirap na ako!" 6
Three. Ruben Ilaoa and Julius Eliginio borrowed Alex Villamils tricycle at about two oclock
the following morning allegedly for the purpose of bringing to the hospital a neighbor who
was about to give birth. Ruben was seen driving the tricycle alone, with a sack which looked
as though it contained a human body, placed in the sidecar. The tricycle was returned an hour
later to Alex who noticed bloodstains on the floor. The latter thought that they were those of
the pregnant woman.
Four. Blood was found on Rubens shirt when he was asked to lift it during the investigation
by the police. 7Moreover, Rubens hair near his right forehead was found partly burned and his
shoes were splattered with blood. 8Susan Ocampo, Rubens live-in partner, was likewise seen
in the early morning of 5 November 1987 sweeping what appeared to be blood at the entrance
of their apartment. 9
In this appeal, brothers Ruben and Rogelio Ilaoa argue for their acquittal. They contend that
the circumstantial evidence relied upon by the trial court for their conviction failed to establish
their guilt beyond reasonable doubt. Specifically, they assail the finding of evident
premeditation, abuse of superior strength and cruelty as totally unwarranted.
We affirm Ruben Ilaoas guilt having been satisfactorily established by the evidence on hand,
albeit circumstantial. However, we reverse the conviction of Rogelio as we find it patently
baseless.
In finding Rogelio guilty of murder, the court a quo relied solely on the testimony that he
helped his brother Ruben drag Nestor de Loyola inside Rubens apartment where the deceased
was last seen alive. Apart from such testimony, however, there is nothing else to link Rogelio
to the killing.
To warrant a conviction on the basis of circumstantial evidence, three requisites must concur:
(a) there must be more than one circumstance; (b) the circumstances from which the
inferences are derived are proven; and, (c) the combination of all the circumstances is such as
to prove the guilt of the accused beyond reasonable doubt. 10 In the case at bench, it does not
require much analysis to conclude that the circumstance relied upon to establish Rogelio
Ilaoas guilt, i.e., the alleged dragging of the deceased to his brothers apartment, is totally
inadequate for a conviction, having miserably failed to meet the criteria. This is especially so
where the veracity of such circumstance is even open to question. While Antonio Ramos and
Abdulia Logan testified that Rogelio Ilaoa helped his brother drag the deceased to his
apartment, Eustancia Bie who claimed to have witnessed the same incident positively testified
that it was Ruben Ilaoa and Julius Eliginio who did so. 11 Rogelio Ilaoa was not mentioned.
Not having been adequately established, in addition to being uncorroborated, such
circumstance alone cannot be the basis of Rogelios conviction.
Rubens case, however, is a totally different matter. Unlike that of his brother, Ruben Ilaoas
fate was most definitely assured by the unbroken chain of circumstances which culminated in
the discovery of Nestor de Loyolas decapitated body in the early morning of 5 November
1987.
As found by the trial court, in the late evening of 4 November 1987, appellant Ruben Ilaoa
was engaged in a drinking session with the deceased Nestor de Loyola together with several
others. Ruben was heard arguing with Nestor. A few moments later, Ruben mauled and kicked
the deceased with the help of their drinking companions just outside Rubens apartment. As
the deceased cried "Aray! Aray!" and "Pare, bakit nyo ako ginaganito? Hirap na hirap na
63
ako!" appellant dragged the deceased with the help of Julius Eliginio to the apartment from
where a mans cries were continued to be heard later. To further seal the case against him,
Ruben borrowed Alex Villamils tricycle at two oclock in the morning of 5 November 1987
on the pretext that a neighbor was about to give birth and had to be rushed to the hospital.
However, he was seen driving the tricycle alone with a sack placed in the sidecar. The sack
looked as if it contained a human body. 12 Then, an hour later, or at three oclock in the
morning, the tricycle was returned with bloodstains on the floor.
For his defense, appellant Ruben Ilaoa does not dispute the testimony of an eyewitness that he
was driving the tricycle at past two oclock in the morning with the sack in the sidecar.
However, he claims that the sack contained buntot ng pusa, a local term for marijuana, not a
human body, which he delivered to a designated place in Fields Avenue as a favor to
his compadre Nestor de Loyola whom he could not refuse. Moreover, it was the vomit
discharged by his drinking companions that was being swept clean by his girlfriend at the
entrance of their apartment in the early morning of 5 November 1987, not blood as the
witnesses asseverated.
We find the version of the prosecution more persuasive than the defense. The fact that
appellant quarreled with the deceased, then mauled and pulled him to the apartment where the
latter was last seen alive, in addition to borrowing a tricycle which was found with bloodstains
when returned, sufficiently point to Ruben as the culprit responsible for the crime. The fact
that the deceased was his compadre, hence, presumably would have no motive to kill the
latter, is not enough to exculpate appellant. It is a matter of judicial knowledge that persons
have been killed or assaulted for no apparent reason at all, 13 and that friendship or even
relationship is no deterrent to the commission of a crime. 14
If we are to believe appellant Ruben, we will not be able to account for the blood found on the
floor of the tricycle after it was brought back to the owner. Ruben himself could not explain
away such testimony for he belied the excuse that the tricycle was needed to rush a pregnant
woman to the hospital, which was the explanation he gave to Alex Villamil when he borrowed
it. We cannot even consider that the story about the blood on the tricycle was simply
concocted by Alex Villamil to incriminate Ruben because the latter was his friend, as Ruben
himself has admitted. 15In fact he could think of no reason for Alex Villamil to testify falsely
against him. 16
Despite the foregoing, however, we hold appellant liable only for homicide, not murder, on the
ground that the qualifying circumstances alleged in the information, namely, abuse of superior
strength, cruelty and evident premeditation, were not sufficiently proved to be appreciated
against appellant.
Abuse of superior strength cannot be considered because there was no evidence whatsoever
that appellant was physically superior to the deceased and that the former took advantage of
such superior physical strength to overcome the latters resistance to consummate the
offense. 17 The fact that Nestor de Loyolas decapitated body bearing forty-three (43) stab
wounds, twenty-four (24) of which were fatal, 18 was found dumped in the street is not
sufficient for a finding of cruelty where there is no showing that appellant Ruben Ilaoa, for his
pleasure and satisfaction, caused Nestor de Loyola to suffer slowly and painfully and inflicted
on him unnecessary physical and moral pain. 19 Number of wounds alone is not the criterion
for the appreciation of cruelty as an aggravating circumstance. 20 Neither can it be inferred
from the mere fact that the victims dead body was dismembered. 21Evident premeditation
cannot likewise be considered. There is nothing in the records to show that appellant, prior to
the night in question, resolved to kill Nestor de Loyola, nor is there proof to show that such
killing was the result of meditation, calculation or resolution on his part. On the contrary, the
evidence tends to show that the series of circumstances which culminated in the killing
constitutes an unbroken chain of events with no interval of time separating them for
calculation and meditation. Absent any qualifying circumstance, Ruben Ilaoa should only be
held liable for homicide.
The penalty prescribed for homicide in Art. 249 of the Revised Penal Code is reclusion
temporal. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or
aggravating circumstances, the maximum shall be taken from the medium period of reclusion
temporal, which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17)
years and four (4) months, while the minimum shall be taken from the penalty next lower in
degree, which is prision mayor, in any of its periods, the range of which is six (6) years and
one (1) day to twelve (12) years.
In line with present jurisprudence, the civil indemnity fixed by the court a quo for the death of
Nestor de Loyola is increased from P30,000.00 to P50,000.00.
WHEREFORE, the judgment finding accused RUBEN E. ILAOA guilty beyond reasonable
doubt is AFFIRMED but only for homicide, instead of murder. Consequently, he is sentenced
to an indeterminate prison term of eight (8) years, ten (10) months and twenty (20) days
of prision mayor medium, as minimum, to sixteen (16) years, four (4) months and ten (10)
days of reclusion temporal medium as maximum. In addition, accused-appellant RUBEN E.
ILAOA is ordered to pay the heirs of Nestor de Loyola P50,000.00 as civil indemnity and, as
fixed by the court a quo, P46,765.00 as actual damages, P10,000.00 as reasonable attorneys
fees and expenses of litigation, and P10,000.00 for moral damages.
Accused-appellant ROGELIO E. ILAOA, however, is ACQUITTED of the crime charged for
obvious insufficiency of evidence.
SO ORDERED.
64

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GARI BIBAT
DESCARGAR, defendant-appellant.
DECISION
PURISIMA, J.:
Appeal interposed by accused Gari Bibat y Descargar from the judgment rendered by
Branch IV of the Regional Trial Court of Manila, finding him guilty of the crime of Murder in
Criminal Case No. 93-123648.
Filed on July 23, 1993 by Assistant Prosecutor Alfeo T. Siccuon, the Information indicting
accused for Murder, alleges:
That on or about October 14, 1992, in the City of Manila, Philippines, the said
accused, conspiring and confederating with others whose true names, identities and present
whereabouts are still unknown and helping one another did then and there willfully,
unlawfully and feloniously, with intent to kill and with treachery and evident premeditation,
attack, assault and use personal violence upon the person of one LLOYD DEL ROSARIO Y
CABRERA, by then and there stabbing him with bladed weapon hitting him on the chest and
abdomen, thereby inflicting upon the latter mortal stab wounds, which are necessarily fatal
and which where the direct and immediate cause of his death thereafter.
Contrary to law.
With the accused entering a negative plea upon arraignment thereunder, with assistance
of the counsel de oficio, Atty. Alejandro G. Yrreborre, Jr., trial ensued with the prosecution
presenting Nona Avila Cinco, P03 Julian Bustamante, Florencio Castro and Rogelio Robles, as
its witnesses.
Aside from accused, Marte Soriano, Lino Asuncion III, and Rogelio Robles (who was
recalled to the stand by the defense), testified for the defense.
As synthesized by the trial court of origin :
From the record and evidence presented, it appears that the accused Gari Bibat stabbed
to death one Lloyd del Rosario on October 12, 1992 at around 1:30 p.m. along G.
Tuazon cor. Ma. Cristina Sts., Sampaloc, Manila. The victim was on his way to school
waiting for a ride when he was stabbed. Thereafter the suspect fled while the victim was
brought to the United Doctors Medical Center (UDMC) where he was pronounced dead
on arrival.
The incident was witnessed by Nona Avila Cinco, a laundry woman, who testified that
on October 14, 1992, while she was at Funeraria Gloria waiting for her bettor, she saw a
person about one meter away talking to the accused. Said person told the accused O
pare, anduon na. Puntahan mo na. Siguruhin mo lang na itumba mo na. to which the
accused answered: Oo ba. Ganito ba, ganito ba? (as the witness was speaking, she was
demonstrating with her arms.)[1]
Y
After hearing the accused, she (witness) left towards Honrades Street to see another
bettor. She first went inside a house and after a while, she went outside where she saw
the accused along Honrades Street, entering an alley. She walked along with the
accused. She and the accused were even able to look at each other.
While the victim was going out of a gate, the accused hurried towards the victim
and took a pointed object from a notebook, then stabbed the victim in the left
chest twice.
She was only about 4 to 5 meters away from the scene of the crime.
Thereafter, the accused fled, the victim shouted for help. Upon hearing the shouts of the
victim, the accused returned and stabbed the victim again in the middle part of the
chest. She (witness) then left the scene of the crime after the accused ran away.
She reported the matter to the authorities only on July 20, 1993 because she was
afraid.[2]
xxx
Florencio Castro testified among others that he saw the accused together with four
others inside the Gloria Memorial Homes along G. Tuason St. on October 14, 1992. One
of them used the phone inside said place to call somebody. The rest stayed beside the one
calling. He saw one of them open a notebook where a stainless knife was inserted. He
heard the one using the phone, asking kung nasaan. Thereafter, the group went out and
left towards the direction of Balic-Balic.
Rogelio Robles, testified among others that the accused Gari Bibat had been going
to his place at 424 Berdad St., Sampaloc, Manila, for a long time already because their
Samahang Ilocano (SI) president, Tonton Montero, is his (witness) neighbor. Before the
incident occurred, Tonton Montero told him (witness) about a rumble in school whereby
somebody died. The group of the accused was planning to take revenge against the victim,
Lloyd del Rosario (see TSN, pp. 7-8, 6/30/94), thus:
PROS. EUGENIO:
Q - Now, do you know personally what this group of Gari Bibat and his companions plan
to do regarding that trouble related to you by your neighbor, Tonton Montero?
A -What I know, the person against whom they will take revenge is living from a far
place. I did not know that he is from our place.
Q -Did they ever mention, during that meeting the name of the person whom they will take
revenge?
A -In the beginning, no, sir, but later they told me.
65
Q -What was the name, if they did mention to you the name?
A -The one who was killed, Lloyd, sir.
Q -The same Lloyd del Rosario, the victim in this case?
A -Yes, sir, Lloyd del Rosario.
He further testified that he (witness) only knows Lloyd del Rosario by the face because
the latter is from his place. He only knew what had happened to Lloyd after that fateful
incident because 6 or 7 of the members of the group arrived, all with a tusok and they
even kept two (2) guns in his (witness) house. Gari Bibat was one of the 6 or 7 people
he saw on that day, with a tres-cantos or veinte nueve tucked in his (Bibats) waistline.
(see pp. 11-12, TSN, 6/30/94). He further narrated that he actually saw the killing of the
victim, (see pp. 22-24, Ibid). that even before the day Lloyd died, they (accused and
companions) already hid some guns and tusok in his house. (see pp. 20, TSN, Ibid.)
xxx xxx xxx
Accused Gari Bibat testified among others that on October 14, 1992, he was staying in
his house at 629 Reten St., Sampaloc, Manila; at that time it was his mothers birthday;
that he was reviewing his lessons from 7:00 oclock to 10:00 oclock in the morning in
preparation for his final oral exams on October 14, 1992; that Marte Soriano, a friend of
his and a neighbor were in his house; that after lunch, they (he and Marte Soriano) left
for school at 12:35 noon; that they did not pass by Funeraria Gloria; that he and his
friend were able to reach the school; that he had a review of with his classmates up to
1:45 oclock in the afternoon, afterwhich they proceeded to their room for the final
exams; that their examination lasted from 7:30 to 4:30 oclock in the afternoon; that he
passed the subject with a grade of 2.25; that he does not know Nona Cinco but only later
in the precinct; that he saw Rogelio Robles who was also detained at the Manila City
Jail; that when he asked why Rogelio Robles testified against him, Robles told him that
it was merely concocted because the complainant is Robles neighbor whom he cannot
refuse; that he does not know Tonton Montero; that he did frequent Verdad St., near
Rogelio Robles house, neither did he go there on October 14, 1992 between 1:00 and
2:00 oclock in the afternoon; that he is not a member of Samahang Ilocano fraternity but
the United Ilocandia fraternity, a school fraternity; that he could not remember of his
fraternity being involved in any school rumble as the same is a very peaceful group
which promotes brotherhood; that they did not have a quarrel with the victim who is
already dead because the latter is not studying at Arellano University;that with respect
to the death of Lloyd del Rosario, the same is an added charge (ipinatong) to him and
that he was just implicated therein; that he knows nothing about it.
On cross examination, he testified that he neither saw the two prosecution witnesses
before nor did he know of any grudge which said witnesses have against him; and that
he does not know of any reason why they would testify against him and identify him as
one of the killers of Lloyd del Rosario.
Marte Soriano, testified among others that he was at the house of Gari Bibat at Reten
St., Sampaloc, Manila, attending the birthday (party) of Garis mother on October 14,
1992; that Gari Bibat was reviewing his studies at that time in preparation for an oral
examination. After taking lunch, he, together with Gari, went to school (Arellano
University) at around 12:00 noon. There, he reviewed his lessons in preparation for his
exams while Gari Bibat had a group study with his classmates until 2:00 P.M. when
Gari went inside the classroom. He knew that Gari Bibat had an exam that day at 2:00
P.M. because he (witness) is also studying at Arellano University. The next time he saw
the accused was two (2) days after October 14, 1992.
Lino Asuncion III, testified among others: that he is a classmate of Gari Bibat at
Arellano University; that their common subject on MWF is Math 2, English 2,
Computer 2; that they had a last/final oral examination in Computer 2 on October 14,
1992; that he saw Gari Bibat in school on that day at about 1:00 P.M.; that he and Gari
Bibat took the said last final oral exam; that they both left the room at the same time at
4:30 P.M.
Rogelio Robles - (was recalled to the stand to testify contrary to what he had previously
stated in court). He testified inter alia that he did not really see what transpired on
October 14, 1992 at 1:30 oclock in 6the (sic) afternoon; that he only assisted the parents
of the victim because they come from the same place; that the father of the victim
handed to him the handwritten statement which he (witness) based his previous
testimony; that he did not actually see the killing.
On December 27, 1995, the court a quo handed down its decision in question; disposing,
thus:
Wherefore, with all the foregoing, the Court finds the accused GARI BIBAT Y
Descargar, guilty beyond reasonable doubt of the crime of MURDER and hereby
sentences him to suffer the penalty of reclusion perpetua; to indemnify the heirs of the
victim in the amount of P49,786.14 as actual damages; and to pay P50,000.00 as and for
moral damages, with costs.
SO ORDERED.
Appellant places reliance on the assignment of errors, that:
I
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE
TESTIMONIES OF THE ALLEGED EYEWITNESSES NONA AVILA CINCO AND
ROGELIO ROBLES.
II
66
 THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE VERSION OF
ACCUSED-APPELLANT THAT HE WAS NOT AT THE SCENE OF THE CRIME
WHEN THE SAME HAPPENED.
III
THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING
CIRCUMSTANCE OF EVIDENT PREMEDITATION.
FIRST ISSUE:
CREDIBILITY OF PROSECUTION WITNESSES
The Court discerns no basis for disturbing the finding and conclusion arrived at below on
the credibility of the prosecution witnesses.
In the matter of credibility of witnesses, we reiterate the familiar and well-entrenched
rule that the factual findings of the trial court should be respected. The judge a quo was
in a better position to pass judgment on the credibility of witnesses, having personally
heard them when they testified and observed their deportment and manner of
testifying. It is doctrinally settled that the evaluation of the testimony of the witnesses
by the trial court is received on appeal with the highest respect, because it had the
opportunity to observe the witnesses on the stand and detect if they were telling the
truth. This assessment is binding upon the appellate court in the absence of a clear
showing that it was reached arbitrarily or that the trial court had plainly overlooked
certain facts of substance or value that if considered might affect the result of the case. [3]
As well explained by the Solicitor General, Persons do not necessarily react uniformly to
a given situation, for what is natural to one may be strange to another. [4] Verily, there is no
standard form of human behavioral response when one is confronted with a strange and startling
experience.[5]
It was thus natural for Nona Cinco to just have stayed at the sidelines. She is a woman
who could not have prevented the armed appellant from stabbing the victim, anyway. The
suddenness of the happening and Nona Cincos fear for her own life must have prevented her
from shouting for help.[6]
Delay in divulging the name of the perpetrator of the crime, if sufficiently reasoned out,
does not impair the credibility of a witness and his testimony nor destroy its probative value. It
has become judicial notice that fear of reprisal is a valid cause for the momentary silence of the
prosecution witness.[7]
In the case at bench, witness Nona Avila Cinco gave an eyewitness account of the killing
complained of in a categorical and straightforward manner.
Appellant belittles the fact that Nona Cinco remembers the stabbing incident to the
minutest details. According to him, this is alright if the crime just happened, or after the
happening of the crime, the witness FORTHWITH reported the matter to the proper
authorities. Unfortunately, the witness reported the said incident after NINE (9) LONG
MONTHS.
It does not appear that it was impossible for Nona Cinco to have a detailed recollection of
the stabbing sued upon. Even before the incident, she already saw the accused with some
companions inside Funeraria Gloria and overheard the plan to kill someone. At that time, she
was only about one (1) meter from the accused and his companions. And when she proceeded
to Honrades Street, she and the accused walked along with and even looked at each other.
At the time when the stabbing in question was taking place, Nona Cinco was only four to
five meters away. The possibility of her recalling even the minutest details cannot therefore be
ruled out.
Appellant faults Nona Cinco for reporting the stabbing incident to the police authorities
only after nine (9) months, and for her apparent indifference during the incident, doing nothing
even while witnessing a cruel and gruesome crime.
Appellant also theorizes that Nona Cinco was lying when she testified that she was taking
bets for a PBA game on October 14,1992, a Wednesday. Claiming that PBA games are held
only on Tuesdays, Thursdays and Saturdays; appellant concludes that She lies on a simple or
minor thing, all the more, she can lie on a bigger scale.
On the other hand, the Solicitor General pointed out that: There are 100 combinations
which bettors can try their luck on the so-called PBA game ending and, therefore, 100
corresponding bets should be collected for maximum profit. It was not farfetched, therefore, for
Nona Cinco to collect bets a day or two before the actual PBA games which would decide the
winning bet.
Besides, the lie alluded pertains to an insignificant matter which does not affect the
material details of the stabbing incident, and the unequivocal eyewitness account of the killing
of the victim, Lloyd del Rosario. The maxim or rule falsus in unos, falsus in omnibus does not
lay down a categorical test of credibility. It is not a positive rule of law of universal
application. It should not be applied to portions of the testimony corroborated by other evidence
particularly where the false portions could be innocent mistakes. Moreover, the rule is not
mandatory but merely sanctions a disregard of the testimony of the witness if the circumstances
so warrant. To completely disregard all the testimony of a witness on this ground, his testimony
must have been false as to a material point, and the witness must have a conscious and deliberate
intention to falsify a material point.[8]
SECOND ISSUE:
THE DEFENSE OF ALIBI
The accused relies on the defense of alibi, an inherently weak defense. [9] In a long line of
cases, this court has held that alibi is generally considered a weak defense because of the facility
with which it can be fabricated.Thus, courts have always looked upon it with suspicion. Well-
settled is the rule that for alibi to prevail, it must be established by positive, clear and satisfactory
67
proof that it was physically impossible for the accused to have been at the scene of the crime at
the time of its commission, and not merely that he was somewhere else. [10]
Appellant failed to convince the court that it was physically impossible for him to be at
the scene of the crime at G. Tuazon cor. Ma. Cristina Sts. He claimed that during the stabbing
incident at around 1:30 p.m., he was reviewing for an oral examination in his subject of
Computer 2 at the Arellano University. But as the trial court noted, the situs of the crime was
not far from Arellano University such that granting arguendo that the accused was initially at
the Arellano University, he could have easily sneaked back to the scene of the crime considering
that the two places are just near each other.[11]
To buttress his theory that he was actually reviewing for his final oral examination in
Computer 2 at the very time the crime occurred, he alleged that he received a grade of 2.25 in
said subject. But aside from his testimony and that of Lino Asuncion, no other evidence was
presented to substantiate this submission. Appellant should have, at least, exhibited his class
card or grading sheet to show that he did really take an examination in that subject.
Furthermore, positive identification, where categorical and consistent and without any
showing of ill motive on the part of the eyewitness testifying on the matter, prevails over alibi
and denial which, if not substantiated by clear and convincing evidence, are negative and self-
serving evidence undeserving of weight in law.[12]
In the instant case, prosecution witness Nona Cinco positively identified appellant as the
culprit. Another prosecution witness, Rogelio Robles, testified to the actual killing of the victim
by appellant. Although the latter recanted, the lower court correctly held that the later retraction
made by Rogelio Robles does not by itself render his previous testimony false or perjured
because the same testimony appears to be credible and worthy of belief.[13] Then too, affidavits
of recantation are considered as exceedingly unreliable because they can be easily secured from
poor and ignorant witnesses usually for monetary consideration and most likely to be repudiated
afterwards.[14]
THIRD ISSUE:
THE PRESENCE OR ABSENCE OF EVIDENT PREMEDITATION
Appellant argues that the trial court erroneously appreciated evident premeditation against
him. Assuming for the sake of argument that he is the felon, the crime he committed is not
MURDER but HOMICIDE,[15] he maintains.
Appellant correctly states the rule that the circumstance which would qualify the killing
to murder must be proved as convincingly as the crime itself. [16]
Here, we are of the irresistible conclusion that the attendance of evident premeditation to
qualify the killing complained of to murder is borne out by the evidence.
There is evident premeditation when the following requisites are met:
1. The time when the offender determined (conceived) to commit the
crime;
2. An act manifestly indicating that the culprit has clung to his
determination; and
3. A sufficient lapse of time between the determination and
execution to allow him to reflect upon the consequences of his act. [17]
The essence of premeditation is that the execution of the criminal act is preceded by cool
thought and reflection upon the resolution to carry out the criminal intent during the space of
time sufficient to arrive at a calm judgment.[18]
The appellant, in his brief, implies that the first requisite of evident premeditation was not
sufficiently proven, contending, that:
xxx the aggravating circumstance of evident premeditation was appreciated by the trial
court based solely on the testimony of witness Rogelio Robles. The said witness
testified that accused-appellant and several others often met in his (Rogelio Robles)
house. In one of their meetings, accused-appellant and his companions hid some guns
and tusok in the said witness house. Other than these testimonies, the trial court
proffered no other rationale to justify the application of evident premeditation.[19]
At first glance, it may seem that the first requisite of evident premeditation, [i.e. the time
when the offender determined (conceived) to commit the crime], was appreciated by the lower
court solely on the basis of the testimony of Rogelio Robles.
Appellant theorizes that the testimony of Robles is not believable; ratiocinating, thus :
xxx such testimonies which were retracted by Rogelio Robles cannot by any yardstick
be considered credible in itself. It simply defy human experience. For evidence to be
believed, it is basic that it must not only proceed from the mouth of a credible witness,
but it must be CREDIBLE IN ITSELF. (Emphasis supplied; Layug v. Sandiganbayan
and People of the Phil., supra; Tuason v. C.A., supra; Lee Eng Hong v. C.A., 241 SCRA
392) If it were true that accused-appellant and several others planned the subject killing,
they would not be crazy enough to have openly discussed the same in the presence of
another person (TSN, June 30, 1994, p. 9). They would be very discreet about it because
even the most unlearned or unschooled person would know that killing is against the
law of man and of God. If indeed they have planned it, they did it in complete
secrecy. More, there is no explanation why of all places, accused-appellant and his
group met at Rogelio Robles house. The latter is only the neighbor of the alleged
president of the formers organization. Worse, accused-appellant and his group hid some
guns (Ibid., p. 11) and tusoks (Ibid., p. 22), in Rogelio Robles house. Any person who is
in his right frame of mind would not allow anybody to use his house as an armory so to
speak or for any illegal purposes.
Appellant faults Rogelio Robles for his utter lack of concern knowing fully well that the
appellant and his companions were planning to kill someone and even allowed them to hide
guns and tusok in his house. But the reason for the apparent indifference of Robles could be
gleaned from the following revelation :
ATTY. CALIMAG:
68
 Q - And when they left your house and took the tusok and left the guns, you know very well its perpetration. In the case under examination, two hours had elapsed from the time appellant
from Tonton Montero that they are going to kill somebody, am I right? clung to his determination to kill the victim up to the actual perpetration of the crime.
A - In school. I did not know that the one they will kill is from my place. WHEREFORE, the Decision appealed from is hereby AFFIRMED. Costs against
accused-appellant.
Q - Now, my question you know that they are going to kill somebody, what did you do, if
any as a concerned citizen? SO ORDERED.
A - What if they turn their ire on me.
COURT:
Aside from that English translation, you put on record the Tagalog answer of the
witness: a Eh, kung ako naman ang pagbalingan.
ATTY. CALIMAG
Q - Now, Mr. Witness, why it took you so long to come out and testify, if you really know
the truth about this matter?
A - Because the parents of the victim were still mad or angry, what would happen to me if
I tell them early, what if they said that I am a part of it.
Q - Why, what do you think about yourself, are you not a part of it, Mr. Witness? Because
you failed to report this matter immediately to the police officer?
A - I kept it to myself for fear that my brother and sisters might be involved, what will
happen to me.
Fully aware that the appellant and his companions were armed with guns and tusok, it was
but natural for Robles to just observe the protagonists and not get involved. Fear for his own life
and that of his family may have overcome whatever humanitarian inclination he had as a
concerned citizen.
Besides, even without the testimony of Rogelio Robles, the presence of the first requisite
of evident premeditation appears to have been thoroughly and sufficiently established. The
determination or conception of the plan to kill the victim could be deduced from the outward
circumstances that happened on the fateful day of October 14, 1992. Records show that at 11:30
in the morning of October 14, 1992, prosecution witness Nona Cinco saw the accused with some
companions at Funeraria Gloria. She personally heard the plan to kill someone. Another
prosecution witness, Florencio Castro, who works at the Funeraria Gloria also saw the group of
Gari Bibat in the said place. At around 1:30 in the afternoon, Nona Cinco saw the appellant for
the second time. She saw the appellant hurry towards the victim, take a pointed thing from a
notebook and with the use of such weapon, stabbed the victim on the chest. These overt acts
clearly evinced that the appellant clung to his resolution to kill the victim.
From the time Nona Cinco heard the plan to kill someone at 11:30 up to the killing incident
at 1:30 in the afternoon of the same day, there was a sufficient lapse of time for appellant to
reflect on the consequences of his dastardly act.
As held in the case of People v. Dumdum[20] the killing of the deceased was aggravated
by evident premeditation, because the accused conceived of the assault at least one hour before

69

G.R. No. 95756 May 14, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CRISOLOGO EMPACIS, accused-appellant.
The Solicitor General for plaintiff-appellee.
Antonio A. Almirante, Jr. for accused-appellant.
NARVASA, C.J.:
In the Regional Trial Court of Cebu City,1 five men, namely: Crisologo Empacis, Romualdo
Langomez, Zacarias Solis, Carlito Antiga, and Bebe Antiga, were indicated for the crime of
robbery with homicide under Article 294 (1), in relation to Article 296, of the Revised Penal
Code.2 The indictment reads as follows:
That on the 16th day of September, 1986 at 9:00 o'clock in the evening,
more or less, in Barangay Kanguha, Municipality of dumanjug, Province
of Debu . . . (said) accused, all armed with carbines and bladed weapons,
conspiring, confederating and mutually helping one another, with evident
premeditation and intent to kill, treacherously attack, assault and use
personal violence upon FIDEL SAROMINES by stabbing him on
different parts of his body and as a result of which FIDEL SAROMINES
died; that on the occassion of the said killing, in pursuance of their
conspiracy, . . . (the) accused did then and there wilfully, unlawfully and
feloniously, and by means of violence, with intent to gain and against the
will of FIDEL SAROMINES, TAKE, STEAL AND CARRY AWAY the
sum of TWELVE THOUSAND (P12,000.00) PESOS, Philippine
Currency, belonging to the latter.
That the crime was committed by a band, all the accused being armed with
carbines and bladed weapons (Article 296, RPC).
IN VIOLATION of and contrary to ARTICLE 294 paragraph 1 of the
Revised Penal Code.
All the accused, except Romualdo Langomez, were thereafter taken into custody. Langomez
disappeared, and was never apprehended and brought to trial. 3 In due course, the other accused
were arrainged and tried.
Sometime in December, 1987, during the trial, Carlito Antiga died from a gunshot wound. 4
The trial eventuated in a verdict of conviction against Crisologo Empacis, and of acquittal as
regards Zacarias Solis and Bebe Antiga. The Trial Court's judgment, dated October 24, 1989,
made the following final disposition:5
WHEREFORE, the Court finds the accused Crisologo Empacis guilty of
robbery with homicide as defined and penalized under Article 294 (1) of
the Revised Penal Code, and considering the attendance of the four
generic aggravating circumstances of dwelling, nighttime, craft or fraud
and superior strength, not offset by any mitigating or extenuating
circumstance, hereby sentences the said accused Crisologo Empacis to the
supreme penalty of death. In view of the fact, however, that the death
penalty has been abolished by Section 19(1), Article III of the 1987
Constitution,6 the accused Crisologo Empacis is hereby sentenced
to reclusion perpetua, to suffer the accessory penalties prescribed by law
and to pay the heirs of Fidel Saromines the amount of THIRTY
THOUSAND PESOS (P30,000.00) by way of death indemnity, without
subsidiary imprisonment in case of insolvency in view of the principal
penalty. He shall also pay the costs of these proceedings.
The accused Crisologo Empacis is hereby immediately ordered arrested
and held in the custody of the law pending appeal or review of this
decision, should the accused wish to appeal from or take up on review this
decision.
The other two accused Zacarias or Caring Solis and Bebe Antiga are
hereby acquitted of the charges against them, their guilt not having been
proved beyond a reasonable doubt.
Let a bench warrant issue against the fifth accused in this case, Romualdo
a.k.a. Maldo Langomez so that he can be brought to court to be dealt with
accordingly.
The Trial Court accorded superior credit to the evidence of the prosecution in so far as it
established Empacis' direct participation in the felony charged, to wit: the testimony of the
widow of victim, Camila Saromines; of their son, Peter Saromines; and of a neighbor, Balbino
Bulak, which the Court found to be corroborated inter alia by the Post Mortem Report dated
September 17, 1986 of the Rural Health Physician at Dumanjug, Cebu (Dr. Octavio Ortiz),
and even by the testimony of accused Crisologo Empacis himself. 7
Following is the story narrated to the Trail Court by the Government witnesses.
At about 9 o'clock on the night of September 16, 1986, as Fidel Saromines and his wife,
Camila, were about to close to their small store, located in their house at Kanguha, Dumanjug,
Cebu, two men came and asked to buy some sardines and rice. They were Romualdo (or
70
Maldo) Langomez and Crisologo Empacis. Camila served them and they proceeded to make a
meal of the rice and sardines.
After they finished eating, Romualdo told Fidel to sell him cigarettes. As Fidel was handing
over the cigarettes, Romualdo announced a "hold-up" and commanded Fidel to give up his
money. As it happened, Fidel then had P12,000.00 in his house, wrapped in cellophane. This
he started to give to Romualdo but as the latter was taking hold of the packet, Fidel suddenly
decided to fight to keep his money. A struggle followed in the course of which Romualdo
stabbed Fidel about three times. Crisologo joined in and with his own knife also stabbed Fidel.
At this time, gunshots were heard outside of the house; and a neighbor of the Saromineses,
Balbino Bulak, recognized one of those doing the shooting as certain Carlito Antiga. 8 A voice
was heard from below saying, "Stab him!"9 to which Langomez replied, "I already stabbed
(him)."10
From his little sister's room, Fidel's thirteen-year odl son, Peter, saw his father fighting for his
life with Romualdo and Crisologo Empacis. Heeding his father's cry, "Peter, help me!"
(Suportahe ko, Peter!), Peter took hold of a "pinuti" (a long bolo), and rushed to his father's
defense. He struck out at Crisologo and inflicted two wounds on him, one at the right
shoulder, and the other, in the neck. Romualdo and Crisologo jumped out of the house and
fled, with the sound of Peter's defiant shout trailing them, "Come back, if you are brave!"
Peter then turned to his wounded father, but found him already dead from his injuries.
The post-mortem examination conducted by Dr. Octavio Ortiz, Rural Health Physician,
disclosed four (4) stab wounds on the deceased, all in the upper back. Two of these, which
penetraded the lungs and heart, were
fatal.11
Crisologo Empacis repaired to the clinic of Dr. Eustaquio Deiparine at the poblacion of
Sibonga, Cebu, for treatment of the wounds inflicted on him by Peter, arriving there between
10 and 11 o'clock that same night. The doctor found Crisologo's wounds described by him
as a "(hacking) wound on the right side of the neck and the right shoulder" "so serious" as
to require further treatment, even after they had been sutured. Dr. Deiparine asked Crisologo
how he had come by these wounds. Crisologo said that at around 6 to 7 o'clock that evening,
near the Papan Market, he was assaulted without warning by a young man, who injured him
with a bolo.
Police officers came to Dr. Deiparine's clinic the following morning, looking for a man might
have been treated for wounds from a bladed weapon. They were directed to the public market
where they came upon Crisologo, taking breakfast. They arrested him and brought him to the
Dumanjug INP Station. There, Crisologo was interrogated by the Station Commander, P/Pfc.
Rogelio Abrea, and gave a sworn statement.
Crisologo was later brought to Municipal Judge Gerardo Gestopa, before whom he took oath
on his affidavit. Before admnistering the oath, the Judge had a law graduate, one Victor
Esguerra, called to assist Crisologo and verify if he had voluntarily executed his sworn
statement.
The three (3) accused all took the witness stand in their defense,12 and gave stories different
from that of the prosecution witnesses.
Empacis confirmed the facts established by the prosecution witnesses, up to a point. He
admitted that he and Romualdo Langomez had indeed gone to the store of Fidel Saromines on
the night in question, and had there partaken of a meal of sardines and rice. He also
acknowledged that after taking their supper, Romualdo Langomez had gone upstairs to buy
some cigarettes from Fidel, and it was there the moments later, he saw Romualdo and Fidel
grappling with each other. He denies having joined Romualdo in attacking Fidel. He claims
that when he saw Romualdo pull out a knife, he tried to stop Romualdo from using the knife
on his adversary; that nonetheless, Romualdo succeeded in stabbing Fidel twice; that a teen-
age boy came with a bolo and lashed out at Romualdo but the latter was not hit because he
pulled him to one side, and instead it was he (Empacis) who was struck at the right side of the
neck; that he then ran away towards his barrio and from there he was brought by his neighbors
to the clinic of Dr. Deiparine; that he was arrested by the police the following morning; that
while being investigated at the municipal hall of Dumanjug, he told the investigator he wished
to avail of the assistance of counsel but his request went unheeded; and that while being
interrogated, some policemen were inflicting pain on him by squeezing his injured back in
order to force him to admit his participation in the robbery-homicide at Kanguha, Dumanjug.13
The other two accused, Zacarias Solis and Bebe Antiga, denied any participation whatever in
the crime. They were both absolved by the Trial Court, which agreed with them that the
prosecution had indeed failed to clearly and positively and their complicity in the offense. 14
The Court a quo rejected (quite correctly, it may be said) the sworn statement purpotedly
execute by Empacis on September 17, 1986, offered by the prosecution, condemning it was
"null and void, . . . offensive to Art. III, Section 20, of the New Constitution and the teachings
of the Supreme Court
. . . ."15 It ruled however that the other proofs of the prosecution overwhelmingly demonstrated
Crisologo Empacis' guilt of the crime charged, and accordingly entered a judgment of
conviction against him. It ruled that Empacis had committed the offense in conspiracy with
Romualdo Langomez (who was then and to this day remains at large); that both of them knew
Fidel to be in possession of a sizable amount of money at the time, and their concerted acts
proved their agreement to rob Fidel and if necessary, kill him. It also ruled that the crime was
attended by several aggravating circumstances, i. e., having been perpetrated (a) "in the
dwelling of the offended party . . . (the latter not having) given provocation," 16 (b) "in the
nighttime;"17 (c) with employment of "craft of fraud;"18 and (d) with advantage being taken of
superior strength.19
From this judgment Empacis has appealed to this Court. His basic thesis is that the evidence of
the prosecution does not actually prove his guilt of the felony of which he is accused beyond
reasonable doubt.
A painstaking review of the record fails to reveal to this Court any error on the part of the
Trial Court of sufficient gravity to justify reversal or modification of its verdict. This Court is
unable to perceive any reason to doubt the veracity of the testimony of the victim's widow and
son respecting the identity of Romualdo Langomez and Crisologo Empacis as the persons who
71
attacked and killed Fidel Saromines in their effort to make off with the latter's money
amounting to P12,000.00, and the acts individually done by Romualdo and Crisologo in
pursuance of their common nefarious objective. Indeed, the narrative of the widow and son is,
as already pointed out, confirmed for the most part by the testimony of Crisologo Empacis
himself. The latter's attempt to exculpate himself, by portraying himself as a frustrated
protector of Fidel Saromines, cannot be taken at face value, as against the more credible
declarations of the victims widow and son, specially considering that Crisologo's credit as a
witness has been gravely enfeebled by his having obviously lied to the physician treating him,
as regards the cause of his
injuries.20
The Court has been cited to no plausible cause for Fidel's widow and son to testify falsely
against Crisologo if it be true, as the latter insinuates, that either they had not seen the actual
killing or, having witnessed it, had seen Crisologo actually try to stop Romualdo from
stabbing Fidel. No reason exists, therefore, to disbelieve them. 21 The fact that the victim's son,
Peter, had to correct his statement on direct examination that Romualdo Langomez stabbed his
father five (5) times, declaring, on cross-examination, that in truth Romualdo stabbed his
father only about three times while Crisologo Empacis stabbed the victim once which the
appellant seeks to make capital is not sufficient warrant to reject and discard Peter's
evidence. The discrepacy is at best a minor one, not all destructive of Peter's credibility as an
unrehearsed witness. This Court agrees that the Trial Court has correctly assessed the credit
that should be accorded to the evidence of the prosecution witnesses.
This Court also agrees that conspiracy is adequately proven by the evidence. Langomez and
Crisologo Empacis came to Fidel's store late at night, acting as bona fide customers.
Immediately after finishing their supper, they demanded the delivery to them of Fidel's money,
of which they evidently had prior knowledge, Crisologo lending silent support to his
companion's order for Fidel to turn over the money to them; they helped each other wrest the
money away from Fidel and subdue him by deadly knife thrusts; Romualdo stabbing Fidel
thrice, Crisologo, once; they had obviously arranged for shots to be fired from outside Fidel's
store as a means of frightening Fidel to submit to their command; and they fled from the
scene, together. They acted in concert, helping and cooperating with one another (and others)
by simultaneous acts, evidently in pursuit of a common objective.22
The aggravating circumstance of craft or fraud23 was properly appreciated against Empacis.
He and Romualdo pretended to be bona fide customers of the victim's store and on his pretext
gained entry into the latter's store and later, into another part of his dwelling. This Court has
held stratagems and ruses of this sort to constitute the aggravating circumstance of fraud or
craft, e.g: where the accused
a) pretended to be constabulary soldiers and by that ploy gained entry into
the residence of their prey whom they thereafter robbed and killed;24
b) pretended to be needful of medical treatment, and through this artifice,
entered the house of the victim whom they thereupon robbed and killed; 25
c) pretended to be wayfarers who had lost their way and by this means
gained entry into a house, in which they then perpetrated the crime of
robbery with homicide;26
d) pretended to be customer wanting to buy a bottle of wine;27
e) pretended to be co-passengers of the victim in a public utility vehicle;28
f) posed as customers wishing to buy cigarettes; and as being thristy,
asking for drink of water.29
The Court also agrees that nighttime was properly appreciated as an aggravating circumstance
against the accused. To be sure, nighttime is not per se aggravating.30 It must be shown that
nocturnity was deliberately and purposely sought to facilitate, or that it actually facilitated, the
commission of the crime.31 In the case at bar, the lateness of the hour no doubt precluded the
presence of other customers who could have deterred the felons, or come to the aid of the
victim. All things considered, there is adequate showing that nocturnity was deliberately
sought by the robbers and did in reality facilitate the perpetration of the felony.
For the aggravating circumstance of superior strength to be deemed present in a case, it does
not suffice to prove superiority in number on the part of the malefactors; 32 it must appear that
they purposely employed excessive force, force out of proportion to the means of defense
available to the person attacked.33 In this case, the evidence shows that Empacis helped his co-
accused by also stabbing the victim; he and his companion took advantage of their combined
strength and their bladed weapons to overcome their unarmed victim and assure the success of
their felonious design to make off with his money.
That the crime was "committed in the dwelling of the offended party, . . . the latter . . . not
(having) given provacation," was also correctly appreciated as an aggravating circumstance. 34
This Court thus sees no cause to deviate from the established axiom that the factual findings of
the Trial Court are accorded the highest respect on appeal, if not indeed regarded as
conclusive, absent any persuasive showing that material facts have been overlooked or ignored
which might otherwise dictate a different verdict.35
The Court a quo sentenced a Crisologo Empacis to pay the heirs of Fidel Saromines in the
amount of Thirty Thousand Pesos (P30,000.00) "by way of death indemnity." Pursuant to
prevailing case law,36 this indemnity must be increased to Fifty Thousand Pesos (P50,000.00).
On the other hand, despite the evidence given by Fidel Saromines' widow establishing the
forcible taking from her husband of the amount of P12,000.00 by Crisologo and
Romualdo,37 the Trial Court somehow omitted to require the return of said stolen money, as
required by law.38
WHEREFORE, with the modification that the indemnity for death payable to the heirs of
Saromines is increased to P50.000.00 and restitution of the amount of P12,000.00 shall be
72
made by the accused, jointly and severally, the Decision of the Trial Court subject of this
appeal is hereby AFFIRMED.

IT IS SO ORDERED.

73