Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.

Antonio Z. Oanis in his own behalf.

Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.

MORAN, J.:

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto
Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively,
were, after due trial, found guilty by the lower court of homicide through reckless imprudence and
were sentenced each to an indeterminate penalty of from one year and six months to two years and
two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in
the amount of P1,000. Defendants appealed separately from this judgment.

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial
Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor:
"Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get
him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be
given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio
Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial
Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping
containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to
follow the instruction contained in the telegram. The same instruction was given to the chief of police
Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked
whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same
name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to
guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of
them he volunteered to go with the party. The Provincial Inspector divided the party into two groups
with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to
the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis
approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's
room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with
her paramour. Brigida trembling, immediately returned to her own room which was very near that
occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene,
and an seeing a man sleeping with his back towards the door where they were, simultaneously or
successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene
saw her paramour already wounded, and looking at the door where the shots came, she saw the
defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the
person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent
citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing,
repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to
himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial
hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and
a .45 caliber revolvers were found on Tecson's body which caused his death.

These are the facts as found by the trial court and fully supported by the evidence, particularly by the
testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According
to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida
where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts
of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room
thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand
up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in
bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and
shouted: "That is Balagtas." Galanta then fired at Tecson.

On the other hand, Oanis testified that after he had opened the curtain covering the door and after
having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas,
while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it
was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who
was then apparently watching and picking up something from the floor, he fired at him.

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only
because they are vitiated by a natural urge to exculpate themselves of the crime, but also because
they are materially contradictory. Oasis averred that be fired at Tecson when the latter was
apparently watching somebody in an attitudes of picking up something from the floor; on the other
hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately
after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas,
when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter
was still lying on bed. It is apparent from these contradictions that when each of the appellants tries
to exculpate himself of the crime charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea.
It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot
to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in
their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed
about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot
Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had
the opportunity to observe her demeanor on the stand, we believe and so hold that no error was
committed in accepting her testimony and in rejecting the exculpatory pretensions of the two
appellants. Furthermore, a careful examination of Irene's testimony will show not only that her
version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-
examination, even misleading questions had been put which were unsuccessful, the witness having
stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel
ourselves justified in disturbing the findings of fact made by the trial court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back
towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing
him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his
identity. And the question is whether or not they may, upon such fact, be held responsible for the
death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in
the honest performance of their official duties, both of them believing that Tecson was Balagtas, they
incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them
guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that,
under the circumstances of the case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the
case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only
when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant
therein after having gone to bed was awakened by someone trying to open the door. He called out
twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from
his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he
was struck by a chair which had been placed against the door and believing that he was then being
attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be
his room-mate. A common illustration of innocent mistake of fact is the case of a man who was
marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with
leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that
the attack was real, that the pistol leveled at his head was loaded and that his life and property were
in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of
fact committed without any fault or carelessness because the accused, having no time or opportunity
to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative
but to take the facts as they then appeared to him, and such facts justified his act of killing. In the
instant case, appellants, unlike the accused in the instances cited, found no circumstances
whatsoever which would press them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity without hazard to themselves,
and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the
victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of
action for appellants to follow even if the victim was really Balagtas, as they were instructed not to
kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is
offered by him.

Although an officer in making a lawful arrest is justified in using such force as is reasonably
necessary to secure and detain the offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738),
yet he is never justified in using unnecessary force or in treating him with wanton violence, or in
resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p.
612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable
force shall be used in making an arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot
claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest
(5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a
notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community,
but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no
resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).

It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his
right to life which he has by such notoriety already forfeited. We may approve of this standard of
official conduct where the criminal offers resistance or does something which places his captors in
danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of
notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety
rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate
action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an
innocent life and there exist no circumstances whatsoever to warrant action of such character in the
mind of a reasonably prudent man, condemnation — not condonation — should be the rule;
otherwise we should offer a premium to crime in the shelter of official actuation.

The crime committed by appellants is not merely criminal negligence, the killing being intentional and
not accidental. In criminal negligence, the injury caused to another should be unintentional, it being
simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en
el malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del
delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta
gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And,
as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16),
and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot
be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of
mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying
circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the
incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According
to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or
in the lawful exercise of a right or office. There are two requisites in order that the circumstance may
be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful
exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the
due performance of such duty or the lawful exercise of such right or office. In the instance case, only
the first requisite is present — appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the necessary consequence of a due
performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance
is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire
to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom
they believed to be Balagtas without any resistance from him and without making any previous
inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one
or two degrees than that prescribed by law shall, in such case, be imposed.

For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder
with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with
the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally
an indemnity of P2,000, with costs.

Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions

PARAS, J., dissenting:

Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to
the provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan,
Nueva Ecija, the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan
by telegram dispatched on December 25, 1938, to get Balagtas "dead or alive". Among those
assigned to the task of carrying out the said order, were Antonio Z. Oanis, chief of police of
Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram received by the
Provincial Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta and a
Constabulary private, after being told by the Provincial Inspector to gather information about
Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in the telegram,"
proceeded to the place where the house of Irene was located. Upon arriving thereat, Oanis
approached Brigida Mallari, who was then gathering banana stalks in the yard, and inquired for the
room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell where Irene's
paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon
reaching the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are
Balagtas," started shooting the man who was found by them lying down beside a woman. The man
was thereby killed, but Balagtas was still alive, for it turned out that the person shot by Oanis and
Galanta was one Serapio Tecson.

Consequently, Oanis and Galanta were charged with having committed murder. The Court of First
Instance of Nueva Ecija, however, convicted them only of homicide through reckless imprudence
and sentenced them each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years
and 2 months of prision correctional, to jointly and severally indemnify the heirs of Serapio Tecson in
the amount of P1,000, and to pay the costs. Oanis and Galanta have appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed the
order issued by the Constabulary authorities in Manila requiring the Provincial Inspector in
Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo
Balagtas. As the latter became a fugitive criminal, with revolvers in his possession and a record that
made him extremely dangerous and a public terror, the Constabulary authorities were justified in
ordering his arrest, whether dead or alive. In view of said order and the danger faced by the
appellants in carrying it out, they cannot be said to have acted feloniously in shooting the person
honestly believed by them to be the wanted man. Conscious of the fact that Balagtas would rather
kill than be captured, the appellants did not want to take chances and should not be penalized for
such prudence. On the contrary, they should be commended for their bravery and courage bordering
on recklessness because, without knowing or ascertaining whether the wanted man was in fact
asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to
danger.

The Solicitor-General, however, contends that the appellants were authorized to use their revolvers
only after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial
Inspector to that effect, was in violation of the express order given by the Constabulary authorities in
Manila and which was shown to the appellants. In the second place, it would indeed be suicidal for
the appellants or, for that matter, any agent of the authority to have waited until they have been
overpowered before trying to put our such a character as Balagtas. In the third place, it is immaterial
whether or not the instruction given by the Provincial Inspector was legitimate and proper, because
the facts exist that the appellants acted in conformity with the express order of superior Constabulary
authorities, the legality or propriety of which is not herein questioned.

The theory of the prosecution has acquired some plausibility, though quite psychological or
sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an "innocent
man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in
time will be consoled by the realization that the life of Serapio Tecson was not vainly sacrificed, for
the incident will always serve as a loud warning to any one desiring to follow in the footsteps of
Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order, enforce
the summary forfeiture of his life.

In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in
fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience
to an order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and
6). They also cannot be held criminally liable even if the person killed by them was not Anselmo
Balagtas, but Serapio Tecson, because they did so under an honest mistake of fact not due to
negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).

It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person
committing a felony although the wrongful act done be different from that which he intended; but said
article is clearly inapplicable since the killing of the person who was believed to be Balagtas was, as
already stated, not wrongful or felonious.

The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point,
inasmuch as the defendant therein, who intended to injure Hilario Lauigan with whom he had a
quarrel, but killed another by mistake, would not be exempted from criminal liability if he actually
injured or killed Hilario Lauigan, there being a malicious design on his part. The other case involved
by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, as it appears that the
defendants therein killed one Pedro Almasan after he had already surrendered and allowed himself
to be bound and that the said defendants did not have lawful instructions from superior authorities to
capture Almasan dead or alive.

The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and
Alberto Galanta, acquitted, with costs de oficio.

HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must
be taken by storm without regard to his life which he has, by his conduct, already forfeited,"
whenever said criminal offers resistance or does something which places his captors in danger of
imminent attack. Precisely, the situation which confronted the accused-appellants Antonio Z. Oanis
and Alberto Galanta in the afternoon of December 24, 1938, was very similar to this. It must be
remembered that both officers received instructions to get Balagtas "dead or alive" and according to
the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial
inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis to the first
part; namely, to take him dead. It appears in the record that after the shooting, and having been
informed of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what they
had done. That was when all parties concerned honestly believed that the dead person was
Balagtas himself, a dangerous criminal who had escaped from his guards and was supposedly
armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon arriving at
the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was
upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If
you are Balagtas stand up," But the supposed criminal showed his intention to attack the appellants,
a conduct easily explained by the fact that he should have felt offended by the intrusion of persons in
the room where he was peacefully lying down with his mistress. In such predicament, it was nothing
but human on the part of the appellants to employ force and to make use of their weapons in order
to repel the imminent attack by a person who, according to their belief, was Balagtas It was
unfortunate, however that an innocent man was actually killed. But taking into consideration the facts
of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid down in
the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an
innocent mistake of fact committed without any fault or carelessness on the part of the accused, who
having no time to make a further inquiry, had no alternative but to take the facts as they appeared to
them and act immediately.
The decision of the majority, in recognition of the special circumstances of this case which favored
the accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be
invoked, and therefore, according to Article 69 of the Revised Penal Code, the imposable penalty
should be one which is lower by one or two degrees than that prescribed by law. This incomplete
justifying circumstance is that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a
person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." I believe that
the application of this circumstance is not proper. Article 69 of the Revised Penal Code provides as
follows:

Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A
penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed
is not wholly excusable by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12,
provided that the majority of such conditions be present. The courts shall impose the penalty
in the period which may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking.

This provision has been copied almost verbatim from Article 84 of the old Penal Code of the
Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870.

Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order
No. 94 of the Department of Justice for the drafting of the Revised Penal Code, in commenting on
Article 69, said that the justifying circumstances and circumstances exempting from liability which
are the subject matter of this article are the following: self-defense, defense of relatives, defense of
strangers, state of necessity and injury caused by mere accident. Accordingly, justifying
circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or the lawful exercise of a right,
calling or office, cannot be placed within its scope.

The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish
Penal Code of 1870 which is the source of Article 69 of our Code says:

Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra

violentado por una fuerza inrresistible o impulsado por miedo insuperable de un mal igual o
mayor, o en cumplimiento de un deber, o en el ejercito legitimo de un derecho, oficio o
cargo, o en virtud de obediencia debida, ni del que incurre en alguna omision hallandose
impedido por causa legitima o insuperable, puede tener aplicacion al articulo que
comentamos. Y la razon es obvia. En ninguna de estas execiones hay pluralidad de
requisitos. La irrespondabilidad depende de una sola condicion. Hay o no perturbacion de la
razon; el autor del hecho es o no menor de nueve años; existe o no violencia material o
moral irresistible, etc., etc.; tal es lo que respectivamente hay que examinar y resolver para
declarar la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el
texto que va al frente de estas lineas rquiere, para que se imponga al autor del hecho la
penalidad excepcional que establece; esto es, que falten algunos requisitos de los que la ley
exige para eximir de responsabilidad, y que concurran el mayor numero de ellos, toda vez
que, en los casos referidos, la ley no exige multiples condiciones.

It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees
than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required by the law to justify the same or exempt from criminal liability.
The word "conditions" should not be confused with the word "requisites". In dealing with justifying
circumstance No. 5 Judge Guevara states: "There are two requisites in order that this circumstance
may be taken into account: (a) That the offender acted in the performance of his duty or in the lawful
exercise of a right; and (b) That the injury or offense committed be the necessary consequence of
the performance of a duty or the lawful exercise of a right or office." It is evident that these two
requisites concur in the present case if we consider the intimate connection between the order given
to the appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas
who was with a bailarina named Irene, the conduct of said appellants in questioning Brigida Mallari
and giving a warning to the supposed criminal when both found him with Irene, and the statement
made by Capt. Monsod after the shooting.

If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons
in favor of the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired
by this accused ever hit Serapio Tecson. Galanta was armed in the afternoon of December 24,
1938, with a .45 caliber revolver (Exhibit L). He so testified and was corroborated by the
unchallenged testimony of his superior officer Sgt. Valeriano Serafica. According to this witness,
since Galanta was made a corporal of the Constabulary he was given, as part of his equipment,
revolver Exhibit L with a serial No. 37121. This gun had been constantly used by Galanta, and,
according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his trunk in
the barracks on the night of December 24, 1938, upon order of Captain Monsod, it was the same
revolver which was given to the witness with five .45 caliber bullets and one empty shell. Fourteen
unused bullets were also taken from Galanta by Sergeant Serafica, thus completing his regular
equipment of twenty bullets which he had on the morning of December 24, 1938, when Sergeant
Serafica made the usual inspection of the firearms in the possession of the non-commissioned
officers and privates of the constabulary post at Cabanatuan. Galanta stated that he had fired only
one shot and missed. This testimony is corroborated by that of a ballistic expert who testified that
bullets exhibits F and O, — the first being extracted from the head of the deceased, causing wound
No. 3 of autopsy report Exhibit C and the second found at the place of the shooting, — had not been
fired from revolver Exhibit L nor from any other revolver of the constabulary station in Cabanatuan. It
was impossible for the accused Galanta to have substituted his revolver because when Exhibit L
was taken from him nobody in the barracks doubted that the deceased was none other than
Balagtas. Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta
should carry along another gun, according to the natural course of things. On the other hand, aside
from wound No. 3 as above stated, no other wound may be said to have been caused by a .45
caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been
caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2
must have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's
entrance was only 8 mm., the caliber should be .32 and not .45, because according to the medico-
legal expert who testified in this case, a bullet of a .45 caliber will produce a wound entrance with
either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who performed the
autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can be
stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no
reason why he should be declared criminally responsible for said death.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the
accused himself, because from the very nature of these facts and from the circumstances
surrounding the incident upon which these proceedings rest, no other evidence as to these facts was
available either to the prosecution or to the defense. We think, however, that, giving the accused the
benefit of the doubt as to the weight of the evidence touching those details of the incident as to
which there can be said to be any doubt, the following statement of the material facts disclose by the
record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley,
Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one
slept in the house except the two servants, who jointly occupied a small room toward the rear of the
building, the door of which opened upon a narrow porch running along the side of the building, by
which communication was had with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch
on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there was but one small window, which,
like the door, opened on the porch. Aside from the door and window, there were no other openings
of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night,
was suddenly awakened by some trying to force open the door of the room. He sat up in bed and
called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door
that it was being pushed open by someone bent upon forcing his way into the room. Due to the
heavy growth of vines along the front of the porch, the room was very dark, and the defendant,
fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the knee by the edge of the chair
which had been placed against the door. In the darkness and confusion the defendant thought that
the blow had been inflicted by the person who had forced the door open, whom he supposed to be a
burglar, though in the light of after events, it is probable that the chair was merely thrown back into
the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife
which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards
turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps
in a desperately wounded condition, followed by the defendant, who immediately recognized him in
the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just
described, one of which took place in a house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his
personal protection.
The deceased and the accused, who roomed together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at night,
he should knock at the door and acquiant his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez,
servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three
returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No.
28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and
Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it
under the impression that Pascual was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless
it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to
frightened him by forcing his way into the room, refusing to give his name or say who he was, in
order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital,
where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court
of simple homicide, with extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto,
but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the
defendant believed him to be. No one, under such circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the
intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from
such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts
and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity"
for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged
(e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the circumstances demand a conviction
under the penal provisions touching criminal negligence; and in cases where, under the provisions of
article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability
for any wrongful act committed by him, even though it be different from that which he intended to
commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases
cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32
N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the crimes
of homicide and assassination as defined and penalized in the Penal Code. It has been said that
since the definitions there given of these as well as most other crimes and offense therein defined,
do not specifically and expressly declare that the acts constituting the crime or offense must be
committed with malice or with criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to the penalties described
therein, unless it appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as
set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent
is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code
clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and
offense therein defined, in the absence of express provisions modifying the general rule, such as are
those touching liability resulting from acts negligently or imprudently committed, and acts done by
one voluntarily committing a crime or misdemeanor, where the act committed is different from that
which he intended to commit. And it is to be observed that even these exceptions are more apparent
than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies
the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition to do harm
that one of them may very well be looked upon as the measure of the other. Since, therefore, the
guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same proportion; it is greater or less according
as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the
contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in
this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there can be no crime; and that the
word "voluntary" implies and includes the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt
from criminal responsibility when the act which was actually intended to be done was in itself a lawful
one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without intention there can be
no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by
Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no
intention there is no crime . . . in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall within the sphere of ethics if
there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is
supposed from the operation of the will and an intent to cause the injury which may be the
object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be
the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in
the parochial church, there can be no crime because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence
in the commission of an act defined and punished by law as criminal, is not a necessary
question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the
various crimes and misdemeanors therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion,
without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is
equal to or less than those contained in the first paragraph thereof, in which case the courts
shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent,"
and the direct inference from its provisions is that the commission of the acts contemplated therein,
in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning
the word "willful" as used in English and American statute to designate a form of criminal intent. It
has been said that while the word "willful" sometimes means little more than intentionally or
designedly, yet it is more frequently understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case
it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words,
corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously,"
and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not often being understood to
require general malevolence toward a particular individual, and signifying rather the intent from our
legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of
the various modes generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with
numerous citations from the decided cases, thus forcely present this doctrine:
 In no one thing does criminal jurisprudence differ more from civil than in the rule as to the
intent. In controversies between private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is
the sentence of wickedness, without which it can not be. And neither in philosophical
speculation nor in religious or mortal sentiment would any people in any age allow that a
man should be deemed guilty unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of an offense is the wrongful intent,
without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this
subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens
sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my act;" and others of
the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we
inculpate or exculpate others or ourselves without any respect to the happiness or misery
actually produced. Let the result of an action be what it may, we hold a man guilty simply on
the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment
of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance
takes the place of justice, every guard around the innocent is cast down. But with the return
of reason comes the public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one
deems another to deserve punishment for what he did from an upright mind, destitute of
every form of evil. And whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil mark upon him, it elevates him
to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the utmost confidence that the plea, if
its truth is credited, will be accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other
doctrines, because first in nature from which the law itself proceeds, that no man is to be
punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs.
286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in
our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make
their commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always held that unless
the intention of the lawmaker to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so construed (cases cited in
Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has
been said not to be a real departure from the law's fundamental principle that crime exists only
where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it
is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and
cases cited.)
But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring
mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is,
in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability provided always there is no fault or negligence on his part; and as laid
down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear
to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb.,
342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made,
and the effect which the surrounding circumstances might reasonably be expected to have on his
mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing — or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or carelessness he does believe them
— he is legally guiltless of the homicide; though he mistook the facts, and so the life of an
innocent person is unfortunately extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled concerning them, and
defends himself correctly according to what he thus supposes the facts to be the law will not
punish him though they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there
cited.)

The common illustration in the American and English textbooks of the application of this rule is the
case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by
his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one
will doubt that if the facts were such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability, although if he knew the real state
of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes
at the same time the presumption established in article 1 of the code, that the "act punished by law"
was committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious
design against him, and under that supposition killed him, although it should afterwards
appear that there was no such design, it will not be murder, but it will be either manslaughter
or excusable homicide, according to the degree of caution used and the probable grounds of
 such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's
report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same attitude, A, who has a club in his
hand, strikes B over the head before or at the instant the pistol is discharged; and of the
wound B dies. It turns out the pistol was loaded with powder only, and that the real design of
B was only to terrify A. Will any reasonable man say that A is more criminal that he would
have been if there had been a bullet in the pistol? Those who hold such doctrine must
require that a man so attacked must, before he strikes the assailant, stop and ascertain how
the pistol is loaded — a doctrine which would entirely take away the essential right of self-
defense. And when it is considered that the jury who try the cause, and not the party killing,
are to judge of the reasonable grounds of his apprehension, no danger can be supposed to
flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of
which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in
company only of his wife, without other light than reflected from the fire, and that the man
with his back to the door was attending to the fire, there suddenly entered a person whom he
did not see or know, who struck him one or two blows, producing a contusion on the
shoulder, because of which he turned, seized the person and took from his the stick with
which he had undoubtedly been struck, and gave the unknown person a blow, knocking him
to the floor, and afterwards striking him another blow on the head, leaving the unknown lying
on the floor, and left the house. It turned out the unknown person was his father-in-law, to
whom he rendered assistance as soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations with his father-in-law, whom he
visited during his sickness, demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity for the employment of the force
used, and in accordance with articles 419 and 87 of the Penal Code condemned him to
twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been proven, that the accused
was surprised from behind, at night, in his house beside his wife who was nursing her child,
was attacked, struck, and beaten, without being able to distinguish with which they might
have executed their criminal intent, because of the there was no other than fire light in the
room, and considering that in such a situation and when the acts executed demonstrated
that they might endanger his existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should have defended himself, and in
doing so with the same stick with which he was attacked, he did not exceed the limits of self-
defense, nor did he use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant, and was
capable of producing death, and in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not given him to known or distinguish
whether there was one or more assailants, nor the arms which they might bear, not that
 which they might accomplish, and considering that the lower court did not find from the
accepted facts that there existed rational necessity for the means employed, and that it did
not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme
court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired
part of the city, upon arriving at a point where there was no light, heard the voice of a man, at
a distance of some 8 paces, saying: "Face down, hand over you money!" because of which,
and almost at the same money, he fired two shots from his pistol, distinguishing immediately
the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they
have killed me," and hastening to his assistance, finding the body lying upon the ground, he
cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the
victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he
retired from the place. Shall he be declared exempt in toto from responsibility as the author
of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not
so find, but only found in favor of the accused two of the requisites of said article, but not that
of the reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc. The supreme court
acquitted the accused on his appeal from this sentence, holding that the accused was acting
under a justifiable and excusable mistake of fact as to the identity of the person calling to
him, and that under the circumstances, the darkness and remoteness, etc., the means
employed were rational and the shooting justifiable. (Sentence supreme court, March 17,
1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a
large stone thrown against his window — at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all of his money, otherwise his
house would be burned" — because of which, and observing in an alley adjacent to the mill
four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the
men, who, on the next morning was found dead on the same spot. Shall this man be
declared exempt from criminal responsibility as having acted in just self-defense with all of
the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but not that of reasonable necessity for
the means, employed, and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the supreme court acquitted the
condemned, finding that the accused, in firing at the malefactors, who attack his mill at night
in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant
Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril,
both of his life and of his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising
his legitimate right of self-defense; that had the facts been as he believed them to be he would have
been wholly exempt from criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the
facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the
merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568
of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and
while the act was done without malice or criminal intent it was, however, executed with real
negligence, for the acts committed by the deceased could not warrant the aggression by the
defendant under the erroneous belief on the part of the accused that the person who assaulted him
was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person
who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused
should be sentenced to the penalty of one year and one month of prision correctional, to suffer the
accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the
deceased, with the costs of both instances, thereby reversing the judgment appealed from.
 SECOND DIVISION

[G.R. No. 127818. November 11, 1998]

PEOPLE OF THE PHILIPPINES. plaintiff-appellee, vs. GUILLERMO

NEPOMUCENO, JR, accused-appellant .

DECISION
MELO, J.:

Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant appeal in regard to
the decision dated November 20, 1996 of the Regional Trial Court of the National Capital Judicial
Region (Manila, Branch 46) which decreed:

Wherefore, the court hereby renders judgment finding the accused guilty beyond
reasonable doubt of the crime of parricide as defined and penalized under Article 246
of the Revised Penal Code as amended by Republic Act No. 7659 for the death of
Grace Nepomuceno and hereby sentences him to suffer imprisonment of Forty (40)
years of reclusion perpetua and to pay the heirs of the deceased the sum of P50,000.00
with costs against him.

Pursuant to Article 921, paragraph (1) of the Civil Code, the court declares the
accused ineligible to inherit from his wife. The entire estate should go to his son,
Giordan Benitez Nepomuceno.

(pp. 20-21, Rollo)

The Information against accused-appellant charged:

That on or about May 2, 1994, in the City of Manila, Philippines, the said accused, 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 GRACE NEPOMUCENO Y BENITEZ, his wife, with whom he
was married in lawful wedlock, by then and there shooting her with a gun of unknown
caliber hitting her on the left hip, thereby inflicting upon the said GRACE
NEPOMUCENO Y BENITEZ gunshot wound which was necessarily fatal and which
was the direct and immediate cause of her death thereafter.

(p. 5, Rollo)
 Upon arraignment, accused-appellant, entered a plea of not guilty and trial ensued in due
course. Thereafter, the trial court rendered the judgment of conviction now on appeal.
The prosecution presented seven witnesses, namely, Eden Ontog, SPO2 Rodolfo Rival,
Forensic Chemist Mary Ann Aranas, Medico-Legal Examiner Floresto Arizala, Monserrat De
Leon, Ballistic Expert Isabelo Silvestre, Jr. and Romeo Pabalan.
Eden Ontog declared that on May 2, 1994, she was the housemaid of the spouses Guillermo
Nepomuceno, Jr. and Grace Nepomuceno, having started as such since May 31, 1993. At around
11 o'clock on the evening of May 2, 1994, accused-appellant, who was drunk, arrived and went to
their bedroom where Eden and her ward Giordan the one-year old son of the couple, were
sleeping. She was awakened by the loud voices of the spouses who were arguing. She saw
accused-appellant get a gun from a drawer, so she went out of the room because of fear. After a
few moments and while she was outside the room, she heard Grace Nepomuceno say: "Sige
patayin mo ako, patayin mo na kami ng anak ko." Then Eden heard a gunshot. She was so scared
that she went out of the house, reaching the door of the house of Barangay Chairman Congen
Leonardo which is 5 meters away. After ten minutes, she saw accused-appellant coming out of the
room. He told her to get a taxi so he could bring the wounded Grace to the hospital. She was left
behind in their room to take care of baby Giordan. She tried to call up Monserrat de Leon, the
sister of Grace in Pasig to inform her of the incident, but she could not get any connection (tsn,
July 27, 1994, pp. 4-17; 24-42).
Mary Ann T. Aranas, a chemist of the National Bureau of Investigation Chemistry Division,
declared that she conducted paraffin examination on both hands of the victim and those of accused-
appellant. She found the victim's hands negative of nitrates, but found accused-appellant's right
hand positive thereof. She gave the opinion that in view of the absence of nitrates on the hands of
the victim, it is probable that she did not fire a gun and that accused-appellant, being positive of
nitrates, did really fire a gun (tsn, August 31, 1994, pp. 17, 22; tsn, July 8, 1996, p. 6).
Dr. Floresto Arizala, Jr., the Medico~Legal Officer of the NBI who conducted a second-
post mortem examination of the victim on May 7, 1994 at the Capitol Memorial Chapels, found
that the victim died due to a gunshot wound, with the slug hitting the left internal iliac artery and
the small intestines and thereafter resting between the uterus and the sacrum of the victim. He
testified that taking into consideration the location of the wound, if the victim were in a sitting or
lying position, the trajectory of the slug was upward coming from right to left; and if the victim
were in a standing position, the muzzle of the gun should have pointed up. The witness declared
that the muzzle of the gun could not have been less that one foot from the victim. He opined that
grappling for possession of the gun was impossible because the trajectory of the bullet was going
upwards and there were no smudges or signs of close firing. He believed that the victim could have
survived if the surgeons had operated immediately (tsn, July 23, 1996, pp. 15-30).
Monserrat de Leon, sister of the victim, declared that Grace would confide to her that accused-
appellant was jobless and that Grace had problems with the low income of the store she owned at
Zurbaran Mart as compared to her expenses. Accused-appellant would force sex on Grace
especially when he was drunk. Her sister had two miscarriages after their first child and it was
during one of these miscarriages that she saw accused-appellant carrying a gun in the Mary Chiles
Hospital where her sister was confined (tsn, August 12, 1996, pp. 3-28).
 Upon the other hand, the defense presented accused~appellant himself as its lone witness. His
story was quoted by the trial court thus:

Two days before the incident on May 2, 1994, Grace, the deceased was very much
worried about the check (sic) she issued which was post dated May 2, 1994. She
would have no funds for the checks. She had been nagging him, displaying her
tantrums (nagdadabog) pestering him to do something to be able to fund the checks.

In the noon time of May 2, 1994, he left her spouse in their store and went to his
mother's house in San Andres Bukid, Manila. This day was the day after the accused-
appellant and his wife, and in-laws arrived from Batangas to attend a town fiesta.

He left the store to avoid further nagging, tantrums and pestering of his wife about his
inability to produce money to be able to fund the postdated checks (sic).

At about 11:00 P.M. after dropping at a friend's house, he decided to go home,

thinking his wife has already cooled off.

When his wife opened the door, she greeted the husband: 'You left in the store and
you room (roam) around, where you able to find money.' He replied, 'where would I
get money, do you expect me to hold up people?' (tsn, October 5, 1994, p. 18)

They had some arguments and Eden Ontog went out of their bedroom, and the
arguments continued. There was a point in the argument when the wife told the
accused thus: 'Wala akong silbi, bakit pa ako nag-asawa sa kanya.'

Because of these continued pestering and nagging of his wife he thought of

separation. Perhaps it would be better if he should end his life. He then took a gun
from their child's drawer. He sat on the bed holding that gun, engrossed in his thinking
what to do. The gun was pointed towards the floor of their room.

In that situation, his wife continued with his nagging and pestering. He just remained
silent.

And then Guillermo asked her wife: 'How come you do not treat me as a husband,
why do you treat me like this.'

It was at this point that Guillermo decided to end his life. Perhaps seriously, perhaps
just to scare his wife to stop all the pestering and tantrums. Surely not only a few
husbands would thought (sic) as what that Guillermo was thinking then, he felt
desperate. He wanted to finish his life. (p. 24, TSN, October 5, 1994)
It was during that time that their son, Jordan woke up, walked to the space between
them (husband and wife) and Nepomuceno block his son's way with his right knee. In
the process, he wanted to totally force Grace from taking possession and control of the
gun. He raised his arm holding the gun passing over the left leg of Grace.

The gun went off.

(pp. 16-17, Rollo)

Aggrieved by the decision of the trial court, accused-appellant assigns the following errors:
I

THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS

ACCIDENTAL, AND THAT THE DECEASED WAS EXEMPT FROM CRIMINAL
LIABILITY.
II

ASSUMING THE ACCUSED IS CRIMINALLY LIABLE, THE TRIAL COURT

ERRED IN NOT FINDING THE KILLING WAS RESULT OF SIMPLE
NEGLIGENCE.
III

THE TRIAL COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED
WAS PROVEN BEYOND REASONABLE DOUBT.

(p. 5, Appellant's Brief.)

In support of the first assigned error, accused-appellant contends that he did not have the least
intention of killing his wife. He urges the Court to consider the circumstances attendant to the
killing, which, according to him negate all inferences and deductions, that he would kill his
wife. First, the deceased was hit in the upper leg, not in any vital organ. If he had the intention of
killing the deceased, he would have shot her at the most vital part of her body.
Secondly, the reaction of the deceased after she was hit was contrary to ordinary and usual
human behavior, if her husband really intended to kill her. The deceased just uttered, "Masakit
Papa", she did not curse nor mouth evil and harsh language against accused-appellant to show
hatred and anger.
Thirdly, if accused-appellant really intended to kill his wife, why did he call a taxi and bring
her to the hospital for immediate medical attention?
Fourthly, why should accused-appellant voluntarily surrender to the police, if the incident was
not accidental?
 Accused-appellant claims exemption from criminal liability under Paragraph 4, Article 12 of
the Revised Penal Code because, according to him, the incident occurred when he tried to prevent
his wife from killing herself, and he and his wife grappled for possession of the gun.
After a painstaking review of the evidence and record of this case, the Court finds itself unable
to reach conclusions identical to those put forward by accused-appellant.
First, accused-appellant cannot invoke the benevolent provisions of Paragraph 4, Article 12
of the Revised Penal Code in order to be exempted from criminal liability arising from the death
of his wife, Grace Nepomuceno. Said provision pertinently states:

Art. 12. Circumstances which exempt from criminal liability. The following are
exempt from criminal liability:

xxx
xxx
xxx

4. Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intention of causing it.

At all events, accident to be exempting, presupposes that the act done is lawful. Here,
however, the act of accused-appellant of drawing a weapon in the course of a quarrel, the same not
being in self-defense, is unlawful -- it at least constitutes light threats (Article 285, par. 1, Revised
Penal Code). There is thus no room for the invocation of accident as a ground for
exemption(People vs. Reyta, Jr., 13 CAR (25) 1190; 1195 [1968]).
The gun which accused-appellant took from his child's drawer was not even licensed or
registered in his name as shown by the Certification of the Firearms and Explosives Office of the
Philippine National Police, hence, he could have been charged with illegal possession of a firearm.
Secondly, accused~appellant's claim that the shooting happened when he tried to prevent his
wife from killing herself and he and his wife grappled for the possession of the gun is belied by
the expert testimony of Dr. Floresto Arizala, Jr. of the NBI who conducted a second post mortem
examination on the cadaver of Grace Nepomuceno. He declared:
Q. Now, is it possible Doctor, considering the location of the wound, the entrance wound and the
trajectory of the bullet upwards, would you say Doctor, that both parties, I mean the victim and the
assailant were grappling for the possession of said gun and it went off accidentally, is that possible,
Mr. Witness?
A. Well, I have to be convinced as to the grappling between the victim and the assailant, because if we
were to be re-construct of the scenario that the gun have been fired, the muzzle of the gun could
not have been closer than twelve (12) inches and considering that the gun was held by a hand, it
farther places the assailant farther from the victim and farther the victim is, from the assailant, then
the more impossible for the grappling for the gun. (tsn, July 23, 1996, pp. 19~20).
Thirdly, accused-appellant, testifying on the relative positions of the victim and himself when
the gun discharged, stated:
 Q. Please tell the court your relative position and the victim when the gun actually went off?
A. When I was in the act of trying to dispossess Grace with that gun and I was trying to let my right
hand pass through my right side but because Grace was struggling, the butt of the gun hit a part of
her upper leg and it exploded.
Q. So when the gun actually fired, you were holding that gun, what part of your arm being held by
Grace?
A. Witness pointing the upper forearm and the lower portion of her upper arm."
(tsn, Oct. 5, 1994, p. 28.)
If Grace were holding the upper forearm and lower portion of the upper arm of accused-
appellant when the gun fired, then at least the hand of Grace that held the upper forearm of
appellant would have traces of nitrate considering its nearness to the exploding gun. However, in
the paraffin test conducted by the Forensic Chemistry Division of the National Bureau of
Investigation on Grace Nepomuceno's both hands, no traces of nitrates were found- while accused-
appellant's right hand was positive of nitrates. The absence of nitrates on the victim's hands is
convincing proof that she did not grapple with accused-appellant for the possession of the gun. It
also proves that she was shot at a distance.
The fact that the victim was not shot in the head, or in any vital part of her body does not
negate intent to kill. The Post Mortem findings on the cadaver of Grace Nepomuceno by Dr.
Arizala shows that the bullet entered "the left thigh, lateral aspect, upper third . . . directed slight
forwards, slightly upwards and from left to right initially involving the skin and subcutaneous
tissue, then taking an intramascular route into the pelvic cavity thru the left obturator foramen,
partially transecting the left internal iliac artery and the small intestines with the slug lodging just
underneath the uterus in front of the sacrum where it was recovered." The extent of the physical
injury inflicted on Grace, as above proved, manifests intention to extinguish life (People vs.
Dawandawan, 184 SCRA 264 [1994]). Moreover, Dr. Arizala likewise declared that the bullet
injured a vital organ of the victim (tsn, July 23, 1996, p. 9).
The fact that Grace, upon being shot, uttered, "Masakit, Papa" and did not use harsh language
against accused-appellant does not, in any way, negate intent to kill. The utterance of a victim
made immediately after sustaining serious injuries may be considered as pure emanations of the
incident or the incident speaking through the victim (People vs. Morin, 241 SCRA 709; 710
[1995]). Thus, by the word "Papa", Grace was in effect, saying that it was accused-appellant who
shot her.
We agree with the Solicitor General that the act of accused-appellant ordering Eden Ontog to
call a taxi in which he brought the wounded Grace to the hospital is "merely an indication or act
of repentance or contrition on the part of appellant" (Appellee's Brief, p. 71, Rollo).
Accused-appellant's voluntary surrender is not sufficient ground to exculpate him
from criminal liability. The law does not find unusual the voluntary surrender of criminal
offenders; it merely considers such act as a mitigating circumstance. Non-flight is not proof of
innocence (People vs. Quijada, 259 SCRA 191 [1996]).
Under the second assigned error, accused-appellant claims that even assuming that the killing
was not totally accidental, his acts would constitute only simple negligence. He asserts that he had
established that the gun went off while he was grappling with his wife for its possession. He was
preventing his wife from taking her own life. He might not have exercised the necessary due care
in wrestling for the gun that resulted in the injury of his wife, but he could be charged only with
parricide through simple negligence. So he says.
It has been held that a deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Oanis, et al., 74 Phil 257 (1943); People
vs. Nanquil, 43 Phil 232 [1922]). What qualifies an act of reckless or simple negligence or
imprudence is the lack of malice or criminal intent in the execution thereof (United States
vs. Maleza, 14 Phil 468, 471 [1909]). Otherwise stated, in criminal negligence, the injury caused
to another should be unintentional, it being simply the incident of another act done without malice
but with lack of foresight, or with carelessness or negligence, and which has harmed society or an
individual (People vs. Castillo, Jr., (275 SCRA 752 [1997]).
The argument of accused-appellant finds no support in the physical evidence. As already
discussed, if the version of grappling for the gun were to be believed, there should have been
nitrates on both hands of Grace. And if it was when accused-appellant placed the barrel of the gun
at the base of his head that Grace grabbed his hand holding the gun and in the struggle for its
possession his hand holding the gun was pushed down so that its butt hit the upper leg of Grace
causing it to fire, then the trajectory of the slug should be downwards, through the upper thigh of
Grace where it entered. Yet, the autopsy report of Dr. Arizala, Jr. showed the bullet entered the
left thigh of Grace directed slightly upwards and from left to right, taking an intramascular route
into the pelvic cavity, instead of a downward direction if accused-appellant's version were to be
believed.
Thus, over and above the testimony of accused-appellant, these physical evidence, the lack of
powder burns or nitrates on the hands of Grace and the trajectory of the bullet that entered her left
thigh being slightly upwards and from left to right instead of downwards, repudiate accused-
appellant's claim of simple negligence. Physical evidence is mute but an eloquent manifestation of
truth and rates high in our hierarchy of trustworthy evidence (People vs. Uycoqua, 246 SCRA 769
[1995]).
Lastly, accused-appellant, perhaps in desperation, resorts to the shotgun type of argument that
his guilt has not been proved beyond reasonable doubt. The argument is bereft of merit.
The prosecution has sufficiently established the elements of parricide by its evidence. These
elements are: (1) the death of the deceased; (2) that she was killed by the accused; and (3) that the
deceased was a legitimate ascendant or descendant, or the legitimate spouse of the accused (Article
246, Revised Penal Code; People vs. Embalido, 58 Phil 154 (1933)].
The first and third elements were stipulated during the pre~trial stage of the case, thus:

1. that the victim and the accused are legally married. Said civil marriage took place
on July 5, 1990;

xxx

5. that immediately after the shooting, the accused voluntarily and bodily carried the
victim into a taxicab and proceeded to UERM Hospital where she died on the
operating table." (Pre-Trial Order of July 11, 1994, Record, p. 6)
 The only issue then is whether accused-appellant intentionally killed Grace Nepomuceno, his
legally wedded wife.
In convicting accused-appellant, the trial court relied heavily on the testimony of the
prosecution witnesses. This Court finds no reason to do otherwise. It is a fundamental and settled
rule that the trial court's assessment in regard to the credibility of witnesses is entitled to the highest
degree of respect and will not be disturbed on appeal, as the trial court was in a better position to
examine real evidence as well as to observe the demeanor of the witnesses (People
vs. Dominguez, 217 SCRA 170 [1993]; People vs. Camaddo, 217 SCRA 162 [1993]; People
vs. Vallena (244 SCRA 685 [1995]).
The Court agrees with the conclusions of the trial court as they are founded on the dictum that
evidence to be believed must not only proceed from the mouth of a credible witness, but must be
credible in itself - such as the common experience of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except in conformity with our
knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous
and is outside of judicial cognizance (People vs. Escalante, 238 SCRA 554 [1994]).
Further, accused-appellant having admitted that he shot his wife, he has the burden of proof
of establishing the presence of any circumstance which may relieve him of responsibility, and to
prove justification he must rely on the strength of his own evidence and not on the weakness of
that of the prosecution, for even if this be weak, it can not be disbelieved after the accused has
admitted the killing (People vs. Bautista, 254 SCRA 621 [1996). Unfortunately for accused-
appellant, he has miserably failed to discharge this task.
The trial court correctly appreciated the voluntary surrender of accused-appellant as a
mitigating circumstance, this fact having been stipulated by the parties at the pre-trial stage of
this case (Pre~Trial Order, Stipulation No. 10 Record, p. 17)
The penalty for the crime of parricide is reclusion perpetua to death; however, there being
one mitigating circumstance but no aggravating circumstance, the lower of the two indivisible
penalties should be imposed. The penalty cannot be further reduced by one degree as the
Indeterminate Sentence Law does not find application, the penalties involved being indivisible.
WHEREFORE, the assailed decision convicting accused-appellant GUILLERMO
NEPOMUCENO, JR. of the crime of Parricide is hereby AFFIRMED with the slight modification
that his sentence shall be simply reclusion perpetua not "imprisonment of Forty (40) Years
of reclusion perpetua" as stated by the trial court.
SO ORDERED.
Puno and Mendoza, JJ., concur.
Martinez, J., no part, on official leave.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-25366 March 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSE BUAN, accused-appellant.

Office of the Solicitor General for plaintiff-appellee.

Felipe C. Magat and Amado D. Dyoco for accused-appellant.

REYES, J.B.L., Actg. C.J.:

Direct appeal by the accused from an order of the Court of First Instance of Bulacan, in its
Criminal Case No. 5243 (for serious physical injuries and damage to property through reckless
imprudence), overruling a motion to quash on the ground of double jeopardy.

Stripped to essentials, the case arose in this wise:

The accused was driving a passenger bus of the La Mallorca Company on July 23, 1962,
along the MacArthur Highway in the municipality of Guiguinto, Bulacan. Allegedly because of his
negligence — and recklessness, the vehicle driven by him struck and collided with the passenger
jeep of Sergio Lumidao, damaging said jeep and causing it to turn turtle, and injuring its passengers.
Six of the latter suffered slight physical injuries requiring medical attendance for 5 to 9 days: three
other riders came out with serious bodily injuries that needed medical attention for 30 to 45 days;
while the jeep was damaged to the extent of P1,395.00.

A charge was filed against the accused-appellant, one for slight physical injuries through
reckless imprudence, in the Justice of the Peace Court of Guiguinto, for which he was tried and
acquitted on December 16, 1963. Prior to this acquittal, however, the Provincial Fiscal of Bulacan
filed in the Court of First Instance the information in the case now before us, for serious physical
injuries, and damage to property through reckless imprudence. Admittedly, both charges referred to
the same highway collision.

When the accused was arraigned in the Court of First Instance, his counsel moved to quash
the charges on the ground that he had already been acquitted of the same offense by the Justice of
the Peace Court. The prosecution opposed the motion and the Court denied the motion quash.
Unable to secure reconsideration, the accused appealed to this Court.

Sole issue before us, therefore, is whether the second case placed the appellant twice in
jeopardy for the same offense, and is barred by the previous acquittal.

We agree with the appellant that the Court below erred in not dismissing the information for
"serious physical injuries and damage to property through reckless imprudence," in view of the
appellant's previous acquittal by the Justice of the Peace Court of Guiguinto, Bulacan, for the same
imprudence.
 Reason and precedent both coincide in that once convicted or acquitted of a specific act of
reckless imprudence, the accused may not be prosecuted again for that same act. For the essence
of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can not be
split into different crimes and prosecutions. This has been the constant ruling of the Spanish
Supreme Court, and is also that of this Court in its most recent decisions on the matter.

Thus, in People vs. Silva, L-15974, January 30, 1962, where as the result of the same
vehicular accident one man died, two persons were seriously injured while another three suffered
only slight physical injuries, we ruled that the acquittal on a charge of slight physical injuries through
reckless imprudence, was a bar to another prosecution for homicide through reckless imprudence.
In People vs. Diaz, L-6518, March 30, 1954, the ruling was that the dismissal by the Municipal Court
of a charge of reckless driving barred a second information of damage to property through reckless
imprudence based on the same negligent act of the accused. In People vs, Belga, 100 Phil. 996,
dismissal of an information for physical injuries through needless imprudence as a result of a
collision between two automobiles was declared, to block two other prosecutions, one for damage to
property through reckless imprudence and another for multiple physical injuries arising from the
same collision. The same doctrine was reasserted in Yap vs. Lutero, et al., L-12669, April 30, 1959.
In none of the cases cited did the Supreme Court regard as material that the various offenses
charged for the same occurrence were triable in Courts of differing category, or that the
complainants were not the individuals.

As for the Spanish jurisprudence, Cuello Calon, in his Derecho Penal (12th Ed.), Vol. I, p. 439,
has this to say:
1äw phï1.ñët

Aun cuando de un solo hecho imprudente se originen males diversos, como el hecho
culposo es uno solo, existe un solo delito de imprudencia. Esta es jurisprudencia constante
del Tribunal Supremo. De acuerdo con esta doctrinael automovilista imprudente que
atropella y causa lesiones a dos personas y ademas daños, no respondera de dos delitos de
lesiones y uno de daños por imprudencia, sino de un solo delito culposo.

The said author cites in support of the text the following decisions of the Supreme Court of
Spain (footnotes 2 and 3).

8 octubre 1887, 18 octubre 1927.

Si con el hecho imprudente se causa la muerte de una persona y ademas se

ocasionan daños, existe un solo hecho punible, pues uno solo fue el acto, aun cuando
deben apreciarse dos enorden a la responsabilidad civil, 14 diciembre 1931 si a
consecuencia de un solo acto imprudente se produjeron tres delitos, dos de homicidio y uno
de daños, como todos son consecuencia de un solo acto culposo, no cabe penarlos por
separado, 2 abril 1932.

The Solicitor General stresses in his brief that the charge for slight physical injuries through
reckless imprudence could not be joined with the accusation for serious physical injuries through
reckless imprudence, because Article 48 of the Revised Penal Code allows only the complexing of
grave or less grave felonies. This same argument was considered and rejected by this Court in the
case of People vs. Diaz, supra:
 ... The prosecution's contention might be true. But neither was the prosecution obliged
to first prosecute the accused for slight physical injuries through reckless imprudence before
pressing the more serious charge of homicide with serious physical injuries through reckless
imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the
Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting
attorney is not now in a position to press in this case the more serious charge of homicide
with serious physical injuries through reckless imprudence which arose out of the same
alleged reckless imprudence of which the defendant has been previously cleared by the
inferior court.

In view of the foregoing, we must perforce rule that the exoneration of this appellant, Jose
Buan, by the Justice of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of
slight physical injuries through reckless imprudence, prevents his being prosecuted for serious
physical injuries through reckless imprudence in the Court of First Instance of the province, where
both charges are derived from the consequences of one and the same vehicular accident, because
the second accusation places the appellant in second jeopardy for the same offense.

WHEREFORE, the order appealed from is reversed, and the Court of First Instance of
Bulacan is directed to quash and dismiss the charge in its Criminal Case No. 5243. No costs. So
ordered.

Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.
Castro, J., took no part.
 SECOND DIVISION

[G.R. No. 137268. March 26, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUTIQUIA

CARMEN @ Mother Perpetuala, CELEDONIA FABIE @ Isabel Fabie,
DELIA SIBONGA @ Deding Sibonga, ALEXANDER SIBONGA @
Nonoy Sibonga, and REYNARIO NUEZ @ Rey Nuez, accused-
appellants.

DECISION
MENDOZA, J.:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 14, Cebu City,
finding accused-appellants Eutiquia Carmen @ Mother Perpetuala, Celedonia Fabie @ Isabel
Fabie, Delia Sibonga @ Deding Sibonga, Alexander Sibonga @ Nonoy Sibonga, and Reynario
Nuez @ Rey Nuez guilty of murder and sentencing them to suffer the penalty of reclusion
perpetua and to pay the heirs of the victim the amount of P50,000.00 as indemnity as well as the
costs.
The information[2] against accused-appellants alleged:

That on or about the 27th day of January, 1997 at about 2:00 oclock p.m., in the City
of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, conniving and confederating together and mutually helping one another, with
deliberate intent, with intent to kill, with treachery and evident premeditation, did then
and there inflict fatal physical injuries on one Randy Luntayao which injuries caused
the death of the said Randy Luntayao.

Accused-appellants pleaded not guilty to the charge, whereupon they were tried.
The prosecution presented evidence showing the following: At around 2 oclock in the
afternoon of January 27, 1997, Honey Fe Abella, 10, and her friend Frances Claire Rivera, 7, were
playing takyan in front of the house of one Bebing Lastimoso in Quiot, Pardo, Cebu City, when
suddenly they heard a child shout, Tabang ma! (Help mother!). The cry came from the direction
of the house of accused-appellant Carmen, who is also known in their neighborhood as Mother
Perpetuala. The two children ran towards Mother Perpetualas house.[3] What Honey Fe saw on
which she testified in court, is summarized in the decision of the trial court, to wit:

While there[,] she saw a boy, whose name . . . she [later] came to know as one Randy
Luntayao, . . . being immersed head first in a drum of water. Accused Alexander
Sibonga was holding the waist of the body while accused Reynario Nuez held the
hands of the boy at the back. Accused Eutiquia Carmen, Delia Sibonga, and Celedonia
Fabie were pushing down the boys head into the water. She heard the boy shouting
Ma, help for two times. Later, she saw accused Reynario or Rey Nuez tie the boy on
the bench with a green rope as big as her little finger. . . . After that Eutiquia Carmen
poured [water from] a plastic container (galon) . . . into the mouth of the boy. Each
time the boy struggled to raise his head, accused Alexander Sibonga banged the boys
head against the bench [to] which the boy was tied down. She even heard the banging
sound everytime the boys head hit the bench. For about five times she heard
it. According to this witness after forcing the boy to drink water, Eutiquia Carmen and
accused Celedonia Fabie alias Isabel Fabie took turns in pounding the boys chest with
their clenched fists. All the time Rey Nuez held down the boys feet to the bench. She
also witnessed . . . Celedonia Fabie dropped her weight, buttocks first, on the body of
the boy. Later on, Eutiquia Carmen ordered Delia or Deding Sibonga to get a knife
from the kitchen. Eutiquia Carmen then slowly plunged the stainless knife on the left
side of the boys body and with the use of a plastic gallon container, the top portion of
which was cut out, Eutiquia Carmen [caught] the blood dripping from the left side of
the boys body. Honey Fe heard the moaning coming from the tortured boy. Much later
she saw Nonoy or Alexander Sibonga, Reynario Nuez, Delia Sibonga, Celedonia
Fabie, and Eutiquia Carmen carry the boy into the house.[4]

Eddie Luntayao, father of the victim, testified that he has five children, the eldest of whom,
Randy, was 13 years old at the time of the incident. On November 20, 1996, Randy had a nervous
breakdown which Eddie thought was due to Randy having to skip meals whenever he took the boy
with him to the farm. According to Eddie, his son started talking to himself and laughing. On
January 26, 1997, upon the suggestion of accused-appellant Reynario Nuez, Eddie and his wife
Perlita and their three children (Randy, Jesrel, 7, and Lesyl, 1) went with accused-appellant Nuez
to Cebu. They arrived in Cebu at around 1 oclock in the afternoon of the same day and spent the
night in Nuezs house in Tangke, Talisay.
The following day, they went to the house of accused-appellant Carmen in Quiot,
Pardo,[5] where all of the accused-appellants were present. Eddie talked to accused-appellant
Carmen regarding his sons condition. He was told that the boy was possessed by a bad spirit, which
accused-appellant Carmen said she could exorcise. She warned, however, that as the spirit might
transfer to Eddie, it was best to conduct the healing prayer without him. Accused-appellants then
led Randy out of the house, while Eddie and his wife and two daughters were locked inside a room
in the house.[6]
After a while, Eddie heard his son twice shout Ma, tabang! (Mother, help!). Eddie tried to go
out of the room to find out what was happening to his son, but the door was locked. After about
an hour, the Luntayaos were transferred to the prayer room which was located near the main door
of the house.[7]
A few hours later, at around 5 oclock in the afternoon, accused-appellants carried Randy into
the prayer room and placed him on the altar. Eddie was shocked by what he saw. Randys face was
bluish and contused, while his tongue was sticking out of his mouth. It was clear to Eddie that his
son was already dead. He wanted to see his sons body, but he was stopped from doing so by
accused-appellant Eutiquia Carmen who told him not to go near his son because the latter would
be resurrected at 7 oclock that evening.[8]
After 7 oclock that evening, accused-appellant Carmen asked a member of her group to call
the funeral parlor and bring a coffin as the child was already dead. It was arranged that the body
would be transferred to the house of accused-appellant Nuez. Thus, that night, the Luntayao
family, accompanied by accused-appellant Nuez, took Randys body to Nunezs house in Tangke,
Talisay. The following day, January 28, 1997, accused-appellant Nuez told Eddie to go with him
to the Talisay Municipal Health Office to report Randys death and told him to keep quiet or they
might not be able to get the necessary papers for his sons burial. Nuez took care of securing the
death certificate which Eddie signed.[9]
At around 3 oclock in the afternoon of January 28, 1997, accused-appellant Carmen went to
Tangke, Talisay to ensure that the body was buried. Eddie and his wife told her that they preferred
to bring their sons body with them to Sikatuna, Isabela, Negros Occidental but they were told by
accused-appellant Carmen that this was not possible as she and the other accused-appellants might
be arrested. That same afternoon, Randy Luntayao was buried in Tangke, Talisay.[10]
After Eddie and his family had returned home to Negros Occidental, Eddie sought assistance
from the Bombo Radyo station in Bacolod City which referred him to the regional office of the
National Bureau of Investigation (NBI) in the city. On February 3, 1997, Eddie filed a complaint
for murder against accused-appellant Nuez and the other members of his group.[11] He also asked
for the exhumation and autopsy of the remains of his son.[12] As the incident took place in Cebu,
his complaint was referred to the NBI office in Cebu City.
Modesto Cajita, head of NBI, Region VII (Cebu), took over the investigation of the case. He
testified that he met with Eddie Luntayao and supervised the exhumation and autopsy of the body
of Randy Luntayao.[13] Cajita testified that he also met with accused-appellant Carmen and after
admitting that she and the other accused-appellants conducted a pray-over healing session on the
victim on January 27, 1997, accused-appellant Carmen refused to give any further
statement. Cajita noticed a wooden bench in the kitchen of Carmens house, which, with Carmens
permission, he took with him to the NBI office for examination. Cajita admitted he did not know
the results of the examination.[14]
Dr. Ronaldo B. Mendez, the NBI medico-legal officer who conducted the autopsy on Randy
Luntayao, testified that he, the victims father, and some NBI agents, exhumed the victims body on
February 20, 1997 at Tangke Catholic Cemetery in the Tangke, Talisay, Cebu. He conducted the
autopsy on the same day and later submitted the following report (Exhs. E and F):[15]

FINDINGS

Body in advanced stage of decomposition wearing a white shirt and shorts wrapped in
printed blanket (white and orange) placed in white wooden coffin and buried
underground about 4 feet deep.

Contusion, 3.0 x 4.0 cms. chest, anterior, left side.

Fracture, 3rd rib, left, mid-clavicular line.

Fracture, linear, occipital bone right side extending to the bases of middle cranial
fossae right to left down to the occipital bone, left side.

Fracture, diastatic, lamboidal suture, bilateral.

Internal organs in advanced stage of decomposition.

Cranial vault almost empty.

CAUSE OF DEATH: [The victim] could have died due to the internal effects of a
traumatic head injury and/or traumatic chest injury.

Dr. Mendez testified that the contusion on the victims chest was caused by contact with a hard
blunt instrument. He added that the fracture on the rib was complete while that found on the base
of the skull followed a serrated or uneven pattern. He said that the latter injury could have been
caused by the forcible contact of that part of the body with a blunt object such as a wooden bench.[16]
On cross-examination, Dr. Mendez admitted that he did not find any stab wound on the victims
body but explained that this could be due to the fact that at the time the body was exhumed and
examined, it was already in an advanced state of decomposition rendering such wound, if present,
unrecognizable.[17]
Accused-appellants did not testify. Instead, the defense presented: (a) Ritsel Blase, an alleged
eyewitness to the incident; (b) Maria Lilina Jimenez, Visitacion Seniega, and Josefina Abing,
alleged former patients of accused-appellant Carmen; (c) Dr. Milagros Carloto, the municipal
health officer of Talisay, Cebu and; (d) Atty. Salvador Solima of the Cebu City Prosecutors Office.
Ritsel Blase, 21, testified that since 1987 she had been with the group of accused-appellant
Carmen, whom she calls Mother Perpetuala. She recounted that at around 2 oclock in the afternoon
of January 27, 1997, while she was in the house of accused-appellant Carmen, she saw Eddie
Luntayao talking with the latter regarding the treatment of his son. The boy was later led to the
kitchen and given a bath prior to treatment. After water was poured on the boy, he became unruly
prompting accused-appellant Carmen to decide not to continue with the treatment, but the boys
parents allegedly prevailed upon her to continue. As the boy continued to resist, accused-appellant
Carmen told accused-appellants Delia Sibonga and Celedonia Fabie to help her (Carmen) lay the
boy on a bench. As the child resisted all the more, Eddie Luntayao allegedly told the group to tie
the boy to the bench. Accused-appellant Delia Sibonga got hold of a nylon rope which was used
to tie the child to the bench. Then Carmen, Delia Sibonga, and Fabie prayed over the child, but as
the latter started hitting his head against the bench, Carmen asked Nuez to place his hands under
the boys head to cushion the impact of the blow everytime the child brought down his head. To
stop the boy from struggling, accused-appellant Fabie held the boys legs, while accused-appellant
Nuez held his shoulders. After praying over the boy, the latter was released and carried inside the
house. Accused-appellant Alexander Sibonga, who had arrived, helped carry the boy inside. After
this, Blase said she no longer knew what happened inside the house as she stayed outside to finish
the laundry.[18]
 Blase testified that the parents of Randy Luntayao witnessed the pray-over of their son from
beginning to end. She denied that accused-appellants Fabie and Delia Sibonga struck the victim
on his chest with their fists. According to her, neither did accused-appellant Carmen stab the
boy. She claimed that Randy was still alive when he was taken inside the house.[19]
The defense presented Maria Lilia Jimenez, 20, Visitacion Seniega, 39, and Josefina Abing,
39, who testified that accused-appellant Carmen had cured them of their illnesses by merely
praying over them and without applying any form of physical violence on them.[20]
Milagros Carloto, Municipal Health Officer of Talisay, Cebu, was also presented by the
defense to testify on the death certificate she issued in which she indicated that Randy Luntayao
died of pneumonia. According to her, Eddie Luntayao came to her office on January 28, 1997 to
ask for the issuance of a death certificate for his son Randy Luntayao who had allegedly suffered
from cough and fever.[21]
On cross-examination, Dr. Carloto admitted that she never saw the body of the victim as she
merely relied on what she had been told by Eddie Luntayao. She said that it was a midwife, Mrs.
Revina Laviosa, who examined the victims body.[22]
The last witness for the defense, Assistant City Prosecutor Salvador Solima, was presented to
identify the resolution he had prepared (Exh. 8)[23] on the re-investigation of the case in which he
recommended the dismissal of the charge against accused-appellants. His testimony was dispensed
with, however, as the prosecution stipulated on the matters Solima was going to testify with the
qualification that Solimas recommendation was disapproved by City Prosecutor Primo Miro.[24]
The prosecution recalled Eddie Luntayao to the stand to rebut the testimonies of Ritsel Blase
and Dr. Milagros Carloto. Eddie denied having witnessed what accused-appellants did to his
son. He reiterated his earlier claim that after accused-appellants had taken Randy, he and his wife
and two daughters were locked inside a room. He disputed Blases statement that his son was still
alive when he was brought into the prayer room. He said he saw that his sons head slumped while
being carried by accused-appellants.[25]
As for the testimony of Dr. Carloto, Eddie admitted having talked with her when he and
accused-appellant Nuez went to her office on January 28, 1997. However, he denied having told
her that his son was suffering from fever and cough as he told her that Randy had a nervous
breakdown. He took exception to Dr. Carlotos statement that he was alone when he went to her
office because it was Nuez who insisted that he (Eddie) accompany him in order to secure the
death certificate.[26]
On November 18, 1998, the trial court rendered a decision, the dispositive portion of which
states:

WHEREFORE, in view of the foregoing facts and circumstances, [the] accused are all
found guilty beyond reasonable doubt of the crime of Murder and are hereby
[sentenced] to suffer the penalty of RECLUSION PERPETUA, with the accessory
penalties of the law; to indemnify jointly and severally the heirs of the deceased
Randy Luntayao in the sum of P50,000.00; and to pay the costs. The accused, are,
however, credited in full during the whole period of their detention provided they will
signify in writing that they will abide by all the rules and regulations of the
penitentiary.[27]

In finding accused-appellants guilty of murder, the trial court stated:

Killing a person with treachery is murder even if there is no intent to kill. When death
occurs, it is presumed to be the natural consequence of physical injuries
inflicted. Since the defendant did commit the crime with treachery, he is guilty of
murder, because of the voluntary presence of the qualifying circumstance of treachery
(P v. Cagoco, 58 Phil. 530). All the accused in the case at bar had contributed
different acts in mercilessly inflicting injuries to the victim. For having immersed the
head of the victim into the barrel of water, all the herein accused should be held
responsible for all the consequences even if the result be different from that which
was intended (Art. 4, par. 1, RPC). It is pointed out that in P. v. Cagoco, 58 Phil. 524,
even if there was no intent to kill[,] in inflicting physical injuries with treachery, the
accused in that case was convicted of murder. In murder qualified by treachery, it is
required only that there is treachery in the attack, and this is true even if the offender
has no intent to kill the person assaulted. Under the guise of a ritual or treatment, the
accused should not have intentionally immersed upside down the head of Randy
Luntayao into a barrel of water; banged his head against the bench; pounded his chest
with fists, or plunged a kitchen knife to his side so that blood would come out for
these acts would surely cause death to the victim. . . .

One who commits an intentional felony is responsible for all the consequences which
may naturally and logically result therefrom, whether foreseen or intended or
not. Ordinarily, when a person commits a felony with malice, he intends the
consequences of his felonious act. In view of paragraph 1 of Art. 4, a person
committing a felony is criminally liable although the consequences of his felonious
acts are not intended by him. . . .

....

Intent is presumed from the commission of an unlawful act. The presumption of

criminal intent may arise from the proof of the criminal act and it is for the accused to
rebut this presumption. In the case at bar, there is enough evidence that the accused
confederated with one another in inflicting physical harm to the victim (an illegal
act). These acts were intentional, and the wrong done resulted in the death of their
victim. Hence, they are liable for all the direct and natural consequences of their
unlawful act, even if the ultimate result had not been intended.[28]

Hence, this appeal. Accused-appellants allege that the trial court erred in convicting them of
murder.[29]
 First. It would appear that accused-appellants are members of a cult and that the bizarre ritual
performed over the victim was consented to by the victims parents. With the permission of the
victims parents, accused-appellant Carmen, together with the other accused-appellants, proceeded
to subject the boy to a treatment calculated to drive the bad spirit from the boys
body.Unfortunately, the strange procedure resulted in the death of the boy. Thus, accused-
appellants had no criminal intent to kill the boy. Their liability arises from their reckless
imprudence because they ought that to know their actions would not bring about the cure. They
are, therefore, guilty of reckless imprudence resulting in homicide and not of murder.
Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in
voluntarily, but without malice, doing or failing to do an act from which material damage results
by reason of inexcusable lack of precaution on the part of the person performing such
act. Compared to intentional felonies, such as homicide or murder, what takes the place of the
element of malice or intention to commit a wrong or evil is the failure of the offender to take
precautions due to lack of skill taking into account his employment, or occupation, degree of
intelligence, physical condition, and other circumstances regarding persons, time, and place.
The elements of reckless imprudence are apparent in the acts done by accused-appellants
which, because of their lack of medical skill in treating the victim of his alleged ailment, resulted
in the latters death. As already stated, accused-appellants, none of whom is a medical practitioner,
belong to a religious group, known as the Missionaries of Our Lady of Fatima, which is engaged
in faith healing.
In United States v. Divino,[30] the accused, who was not a licensed physician, in an attempt to
cure the victim of ulcers in her feet, wrapped a piece of clothing which had been soaked in
petroleum around the victims feet and then lighted the clothing, thereby causing injuries to the
victim. The Court held the accused liable for reckless imprudence resulting in physical injuries. It
was noted that the accused had no intention to cause an evil but rather to remedy the victims
ailment.
In another case, People v. Vda. de Golez,[31] the Court ruled that the proper charge to file
against a non-medical practitioner, who had treated the victim despite the fact that she did not
possess the necessary technical knowledge or skill to do so and caused the latters death, was
homicide through reckless imprudence.
The trial courts reliance on the rule that criminal intent is presumed from the commission of
an unlawful act is untenable because such presumption only holds in the absence of proof to the
contrary.[32] The facts of the case indubitably show the absence of intent to kill on the part of the
accused-appellants. Indeed, the trial courts findings can be sustained only if the circumstances of
the case are ignored and the Court limits itself to the time when accused-appellants undertook their
unauthorized treatment of the victim. Obviously, such an evaluation of the case cannot be allowed.
Consequently, treachery cannot be appreciated for in the absence of intent to kill, there is no
treachery or the deliberate employment of means, methods, and manner of execution to ensure the
safety of the accused from the defensive or retaliatory attacks coming from the victim.[33] Viewed
in this light, the acts which the trial court saw as manifestations of treachery in fact relate to efforts
by accused-appellants to restrain Randy Luntayao so that they can effect the cure on him.
On the other hand, there is no merit in accused-appellants contention that the testimony of
prosecution eyewitness Honey Fe Abella is not credible. The Court is more than convinced of
Honey Fes credibility. Her testimony is clear, straightforward, and is far from having been coached
or contrived. She was only a few meters away from the kitchen where accused-appellants
conducted their pray-over healing session not to mention that she had a good vantage point as the
kitchen had no roof nor walls but only a pantry. Her testimony was corroborated by the autopsy
findings of Dr. Mendez who, consistent with Honey Fes testimony, noted fractures on the third left
rib and on the base of the victims skull. With regard to Dr. Mendezs failure to find any stab wound
in the victims body, he himself had explained that such could be due to the fact that at the time the
autopsy was conducted, the cadaver was already in an advanced state of decomposition.Randy
Luntayaos cadaver was exhumed 24 days after it had been buried. Considering the length of time
which had elapsed and the fact that the cadaver had not been embalmed, it was very likely that the
soft tissues had so decomposed that, as Dr. Mendez said, it was no longer possible to determine
whether there was a stab wound. As for the other points raised by accused-appellants to detract the
credibility of Honey Fes testimony, the same appear to be only minor and trivial at best.
Accused-appellants contend that the failure of the prosecution to present the testimony of
Frances Claire Rivera as well as the knife used in stabbing Randy Luntayao puts in doubt the
prosecutions evidence. We do not think so. The presentation of the knife in evidence is not
indispensable.[34]
Finally, accused-appellants make much of the fact that although the case was tried under Judge
Renato C. Dacudao, the decision was rendered by Judge Galicano Arriesgado who took over the
case after the prosecution and the defense had rested their cases.[35] However, the fact that the judge
who wrote the decision did not hear the testimonies of the witnesses does not make him less
competent to render a decision, since his ruling is based on the records of the case and the transcript
of stenographic notes of the testimonies of the witnesses.[36]
Second. The question now is whether accused-appellants can be held liable for reckless
imprudence resulting in homicide, considering that the information charges them with murder. We
hold that they can.
Rule 120 of the Revised Rules of Criminal Procedure provides in pertinent parts:

SEC. 4. Judgment in case of variance between allegation and proof. When there is
variance between the offense charged in the complaint or information and that proved,
and the offense as charged is included in or necessarily includes the offense proved,
the accused shall be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another. An offense charged

necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute the
latter. And an offense charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those constituting the
latter.

In Samson v. Court of Appeals,[37] the accused were charged with, and convicted of, estafa
through falsification of public document. The Court of Appeals modified the judgment and held
one of the accused liable for estafa through falsification by negligence. On appeal, it was
contended that the appeals court erred in holding the accused liable for estafa through negligence
because the information charged him with having wilfully committed estafa. In overruling this
contention, the Court held:

While a criminal negligent act is not a simple modality of a willful crime, as we held
in Quizon v. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1955, but a
distinct crime in itself, designated as a quasi offense in our Penal Code, it may
however be said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory that the
greater includes the lesser offense. This is the situation that obtains in the present
case. Appellant was charged with willful falsification but from the evidence submitted
by the parties, the Court of Appeals found that in effecting the falsification which
made possible the cashing of the checks in question, appellant did not act with
criminal intent but merely failed to take proper and adequate means to assure himself
of the identity of the real claimants as an ordinary prudent man would do. In other
words, the information alleges acts which charge willful falsification but which turned
out to be not willful but negligent. This is a case covered by the rule when there is a
variance between the allegation and proof. . . .

The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the evidence
submitted by appellant himself and the result has proven beneficial to him. Certainly,
having alleged that the falsification has been willful, it would be incongruous to allege
at the same time that it was committed with imprudence for a charge of criminal intent
is incompatible with the concept of negligence.

In People v. Fernando,[38] the accused was charged with, and convicted of, murder by the trial
court. On appeal, this Court modified the judgment and held the accused liable for reckless
imprudence resulting in homicide after finding that he did not act with criminal intent.
Third. Coming now to the imposable penalty, under Art. 365, reckless imprudence resulting
in homicide is punishable by arresto mayor in its maximum period to prision correccional in its
medium period. In this case, taking into account the pertinent provisions of Indeterminate Sentence
Law, the accused-appellants should suffer the penalty of four (4) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional, as maximum.
As to their civil liability, accused-appellants should pay the heirs of Randy Luntayao an
indemnity in the amount of P50,000.00 and moral damages also in the amount of P50,000.00.[39] In
addition, they should pay exemplary damages in the amount of P30,000.00 in view of accused-
appellants gross negligence in attempting to cure the victim without a license to practice medicine
and to give an example or correction for the public good.[40]
WHEREFORE, the decision of the Regional Trial Court, Branch 14, Cebu City, is
AFFIRMED with the MODIFICATION that accused-appellants are hereby declared guilty of
reckless imprudence resulting in homicide and are each sentenced to suffer an indeterminate prison
term of four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months
of prision correccional, as maximum. In addition, accused-appellants are ORDERED jointly and
severally to pay the heirs of Randy Luntayao indemnity in the amount of P50,000.00, moral
damages in the amount of P50,000.00, and exemplary damages in the amount of P30,000.00.
SO ORDERED.
Bellosillo, (Chairman), Buena, and De Leon, Jr., JJ., concur
Quisumbing, J., on leave.

[1]
Per Judge Galicano N. Arriesgado.
[2]
Records, pp. 1-2.
[3]
TSN (Honey Fe Abella), pp. 12-15, Dec. 23, 1997.
[4]
Decision, p. 2; Rollo, p. 17.
[5]
TSN (Eddie Luntayao), pp. 5-7, Jan. 21, 1998; TSN (Ronaldo Mendez), p. 19, Jan. 20, 1998.
[6]
TSN (Eddie Luntayao), pp. 7-8, 19, Jan. 21, 1998; TSN, pp. 11-12, July 27, 1998.
[7]
Id., pp. 8-9; id., pp. 13-15.
[8]
TSN (Eddie Luntayao), pp. 9-10, Jan. 21, 1998.
[9]
TSN (Eddie Luntayao), pp. 10-12, Jan. 21, 1998.
[10]
Id., pp. 11-12.
[11]
TSN (Eddie Luntayao), p. 12, Jan. 21, 1998; Exh. I; Records, pp. 110-114.
[12]
Exh. C; Records, p. 110-B.
[13]
TSN (Modesto Cajita), pp. 4, 7-8, 20, Feb. 3, 1998.
[14]
Id., pp. 8-10, 14-15, 17.
[15]
Records, pp. 110-D and E.
[16]
TSN (Ronaldo Mendez), pp. 7, 9-13, Jan. 20, 1998.
[17]
Id., pp. 15, 19.
[18]
TSN (Ritsel Blase), pp. 3-11, 22-23, March 3, 1998.
[19]
Id., pp. 10-11.
[20]
TSN (Maria Lilia Jimenez), pp. 15-17; Feb. 27, 1998; TSN (Visitacion Seniega), pp. 3-5, Feb. 27, 1998; and TSN
(Josefina Abing), pp. 8-9, Feb. 27, 1998.
[21]
TSN (Milagros Carloto), pp. 4-5, Feb. 25, 1998.
[22]
Id., pp. 7-9, 15-18.
[23]
Records, pp. 47-48.
[24]
TSN (Salvador Solima), pp. 2-3, July 27, 1998.
[25]
TSN (Eddie Luntayao), pp. 4-7, July 27, 1998.
[26]
Id., pp. 2-3.
[27]
Decision, p. 13; Rollo, p. 28.
[28]
Decision, pp. 9-11; Rollo, pp. 24-26.
[29]
Rollo, p. 69.
[30]
12 Phil. 175 (1908).
[31]
108 Phil. 855 (1960).
[32]
People v. Sia Teb Ban, 54 Phil. 52 (1929).
[33]
See People v. Suplito, 314 SCRA 493 (1999); People v. Gatchalian, 300 SCRA 1 (1998).
[34]
People v. Dela Cruz, G.R. No. 118967, July 14, 2000.
[35]
Appellants Brief, pp. 14-15; Rollo, pp. 70-71
[36]
People v. Ulzoron, 286 SCRA 741 (1998).
[37]
103 Phil. 277 (1958); Cabella v. Sandiganbayan, 197 SCRA 94 (1991).
[38]
49 Phil. 75 (1926).
[39]
Civil Code, Arts. 2206(3) and 2219(1); See People v. Silva, 321 SCRA 647 (1999); People v. Silvestre, 307 SCRA
60 (1999).
[40]
Civil Code, Arts. 2229 and 2231; See People v. Medroso, Jr., 62 SCRA 245 (1975).
 THIRD DIVISION

[G.R. No. 145803. June 30, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. BENJIE PABIONA,

ROSELO BASALATAN, ANTONIO SILARCA, ROBERTO METANO,
and CHRISTOPHER DELOS REYES (at large), accused,
BENJIE PABIONA, ROSELO BASALATAN, ROBERTO METANO and
ANTONIO SILARCA, appellants.

DECISION
CARPIO MORALES, J.:

On appeal is the May 30, 2000 Decision[1] of the Regional Trial Court of Iloilo City,
Branch 23 convicting appellants Benjie Pabiona, Roselo Basalatan, Roberto Metano and
Antonio Silarca of the crime of murder, sentencing them to suffer the penalty of reclusion
perpetua, and ordering them to pay the heirs of the victim, Robert Pagayon, the amounts
of P232,100.00 as actual damages and P50,000.00 as civil indemnity.
The Information[2] dated May 31, 1997 charging the appellants and accused
Christopher de los Reyes with murder reads as follows:

That on or about the 20th day of November, 1996, in the Municipality of Passi,
Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping each other,
with treachery and deliberate intent to kill, did then and there willfully, unlawfully
and feloniously, attack and assault ROBERT PAGAYON with fist and kick blows and
bamboo poles, as a result of which the said Robert Pagayon suffered multiple physical
injuries on his body which caused his death thereafter.

CONTRARY TO LAW.

Upon arraignment[3] on June 30, 1997, appellants pleaded not guilty to the offense
charged. Trial thereafter ensued. Their co-accused, Christopher de los Reyes, has
remained at large.
The prosecution presented the following witnesses whose testimonies follow after
their respective names:
Michael Pagayon (Michael), a cousin of the victim, testified that on November 20,
1996, at about 9 p.m. at Barangay Agtambo, Passi, Iloilo, while he was on his way to the
house of his aunt, Rosalina Padernal, he heard a cry for help emanating from a nearby
river.[4] When he was about ten (10) meters from the river, he saw appellants, including
accused Christopher de los Reyes, wielding bamboo poles. All of the accused were
striking and kicking an unidentified man who was crawling. He then heard appellant
Pabiona say, What did you tell, ha?[5] Michael then proceeded to his aunts house and
spent the night there.
The following morning, at about 6 a.m., Michael left his aunts house. On his way to
work at Villa, Iloilo, he passed by the place where he saw appellants beating up the
unidentified man. He saw two men at the area but he kept on walking and was not able
to identify them.[6]
Two weeks later, he heard a radio news report that his cousin Robert died at
Barangay Agtambo after falling into a well on the date he witnessed appellants mauling
an unknown victim.[7] He then narrated what he saw on the night of November 20, 1996 to
his wife. Two months after hearing the radio report, he recounted what he witnessed to
the mother of the victim, Marina Pagayon.[8]
Marina Pagayon (Marina) who, like the rest of the accused, was a member of
appellant Pabionas religious group, Catholic Movement of Jesus and Mary (CMJM),
testified that at about 7 p.m. on November 20, 1996, appellant Pabiona and his brother
Popoy went to her house at Gines Viejo, Passi, Iloilo and asked her to spend the night at
his house in Dorillo Street, Passi, Iloilo and that Robert go along with them and resume
work at his well. She acquiesced. Later that evening, appellant Basalatan, his wife
Teresita and two others arrived at the Pagayon house and they all boarded appellant
Basalatans jeepney and headed for appellant Pabionas house at Dorillo where she and
Popoy Pabiona alighted. Appellant Basalatan and the rest of the passengers then
proceeded to the well at Barangay Agtambo.
The morning after, Marina went back to her house to attend to her grandson. At
about 11 a.m., Popoy Pabiona and Annie Ardales arrived at her house and told her to go
to Barangay Agtambo.[9] Upon arriving thereat, she saw appellants Pabiona, Metano,
Silarca, appellant Pabionas mother Avelina, and a certain Cheryl Pampag at Pabionas
nipa hut. She then saw the lifeless body of her son-the victim on the floor of the hut. She
cried and asked appellant Pabiona what had happened. Appellant Pabiona told her that
her son died after falling into the well at about 9 a.m. She then asked why they did not
bring him to a hospital to which appellant Pabiona replied that the victim was already dead
when they found him. Marina then noticed that her sons body was clean and he was
wearing a pair of shorts which did not belong to him, prompting her to ask appellant
Pabiona, If he fell why is it there is no mud on the body and he is already clean. Appellant
Pabiona replied that they already bathed Robert before she arrived. [10]
A jeepney from Funeraria Pamplona later arrived to take the victims body. While on
the jeepney, appellant Pabiona instructed Marina to keep quiet and not cry loudly as other
people might hear her. He likewise instructed her to cover the victim with a blanket and
made to sit beside the driver so that other people would not know that he was
dead. Because the victims body had already hardened, however, he was laid down on
the jeepney. His body was then taken to Funeraria Pamplona.
 As Marina had misgivings about the cause of her sons death, she went to appellant
Pabionas house to talk to him and ask him again about what really transpired before the
victim died. Appellant Pabiona told her to accept that what happened was an accident
and suggested that there be no autopsy conducted on the victims body as it might cause
trouble. Avelina, appellant Pabionas mother, then told her that she should not be
saddened as they would shoulder all the funeral expenses. [11] As she still could not think
clearly, she agreed to everything that appellant Pabiona and his mother had told her.
Emma Pagayon (Emma), the victims sister-in-law, testified that at about 6:30
a.m. on November 22, 1996, she was informed by Tessie Basalatan (Tessie), the wife of
appellant Basalatan, and Gina Panerio (Gina), a member of CMJM, that the victim died
after falling from the roof of appellant Pabionas nipa hut in Barangay Agtambo. [12]Emma
thus woke up her husband Renato Pagayon and they interrogated Tessie and Gina about
the circumstances surrounding the victims alleged fall from the roof. They were told that
Robert fell face down on the ground and hit a hard object, [13] and that he was no longer
brought to a hospital as he died immediately. Upon further questioning by the Pagayons,
Tessie and Gina told them that nobody reported the incident to the police as all of them
were demoralized by the victims death.[14]
Emma thereupon repaired to Funeraria Pamplona and had photographs of her
brother-in-law taken as she planned to request for an autopsy of his body. When she
broached the idea of subjecting the victims body to an autopsy to Marina, the latter initially
refused because of appellant Pabionas instructions. She later agreed upon Emmas
prodding.
Emma then went to Dr. Leonardo Deza, the municipal health officer of Passi, Iloilo,
and requested for an autopsy of the victims body. Dr. Deza was astonished and told
Emma that he had already released the victims death certificate [15] upon processing by
an unidentified woman.[16] He then immediately caused the cancellation[17] of the death
certificate at the Office of the Civil Registrar. Upon examination of the cancelled death
certificate, Emma noticed that her mother-in-laws signature therein was forged.[18]
On November 25, 1996, Emma went to Dr. Owen Jaen Lebaquin, medico-legal officer
of the Philippine National Police Crime Laboratory Service in Camp Delgado, IloiloCity,
and requested for an autopsy of the victims body.
Gathered from the postmortem examination conducted on the body of the victim
on December 2, 1996 by Dr. Lebaquin are the following:

FINDINGS:

Fairly nourished, fairly developed previously embalmed male cadaver. Embalming

incision sites are noted at the right lateral of the neck and at the umbilical area.

HEAD, TRUNK AND EXTREMITIES:

1) Hematoma, left periorbital area, measuring 4 x 4 cm, 5 cm from its anterior

midline.
2) Abrasion, left mandibular area, measuring 2 x 0.5 cm, 9 cm from its anterior
midline.

3) Area of multiple abrasion, right infraclavicular area, measuring 11 x 6 cm, 5 cm

from its anterior midline.

4) Area of multiple abrasion, sternal notch area extending to the left supraclavicular
area, measuring 8 x 6 cm, 5 cm from its anterior midline.

5) Area of multiple abrasion, left parasternal area extending to the left clavicular area,
measuring 24 x 6 cm, 13 cm from its anterior midline.

6) Area of multiple abrasion, right costal margin extending to the epigastric area,
measuring 29 x 11 cm, 9 cm from its anterior midline.

7) Abrasion, left iliac area, measuring 6 x 5 cm, 11 cm from its anterior midline.

8) Abrasion, distal 3rd of the right thigh, measuring 9 x 3 cm, 7 cm medial to its
anterior midline.

9) Abrasion, umbilical area, measuring 7 x 5 cm, 3 cm from its anterior midline.

10) Area of Multiple Abrasion, nape area along the paravertebral area extending to the
lumbar area, measuring 30 x 13 cm bisected by its posterior midline.

A linear fracture is noted at the left sphenoid.

A blood clot measuring 2 x 1 cm at the parietal lobe of the brain left side is noted.

Scalp hematoma is noted at the occipital area of the head.

Hemorrhagic areas are likewise noted at the underlying tissue of the left clavicular
area.

Stomach is full of partially digested food consisting mostly of rice.

CONCLUSION:

Cause of death is Cardiorespiratory arrest due to shock and hemorrhage as a result of

multiple traumatic injuries to the body.[19]

Upon the other hand, the defense presented appellants and Rosalina Padernal
whose testimonies follow after their respective names:
 Appellant Pabiona testified that at about 7 p.m. on November 20, 1996, he was told
by his mother that Marina went to their house earlier to inform him that her son-the victim
would resume work at his well.[20] He thereupon asked his brother to accompany him in
fetching the victim. On arrival at the Pagayon house at about 7:30 p.m., Marinatold them
to wait while she prepared Roberts belongings. In the meantime, appellant Basalatan,
together with his wife Teresita, arrived. The six of them, on board appellant Basalatans
jeepney, then left for appellant Pabionas house where Marina and appellant Pabionas
brother alighted as they were to spend the night there. The rest of them proceeded to
appellant Pabionas farm in Barangay Agtambo at about 9 p.m. as they planned to
continue digging at the well the following day.[21]
Appellant Pabiona and company arrived at the farm at about 9:30 p.m. and
proceeded to a nipa hut, ten (10) meters away from the well, where they met appellants
Metano, Silarca and accused de los Reyes.[22] They took supper after which appellant
Basalatan and his wife Teresita left for home. The five remaining men then slept at the
nipa hut.
Appellant Pabiona woke up the next day at about 5:45 a.m. and joined his
companions who were drinking coffee. At around 7 a.m., he told them to stay at the nipa
hut while he walked around the farm. His companions then told him that they would start
digging shortly after he leaves.
At around 11:00 a.m., when appellant Pabiona was about 500 meters from the nipa
hut, he was startled to find appellant Silarca running towards him, shouting that the victim
fell down the well.[23] Both of them thus repaired to the well and found appellant Metano
crying while accused de los Reyes was inside the well cradling the victim.Appellant
Pabiona then instructed appellants Metano and Silarca to help the victim. After much
difficulty, the victim being heavy, they were finally able to lift him from the 15 meter deep
well by spreading his legs, placing him astride appellant Silarcas shoulders, tying a
blanket which was connected to a rope around his armpits, pulling the rope (by appellant
Pabiona) as appellant Metano and accused de los Reyes helped appellant Silarca climb
the bamboo ladder inside the well.
After lifting the victim from the well, appellant Silarca performed mouth to mouth
resuscitation in order to revive Robert, but to no avail.[24] They thereupon brought him to
the nipa hut. Appellant Pabiona instructed accused de los Reyes to look for a vehicle so
they could bring Robert to a doctor. He likewise ordered him to inform Marina that her son
was involved in an accident.[25]
At about 12 noon, Marina, together with Annie Ardales, arrived at the nipa
hut. Appellant Pabiona left for home at about 2:30 p.m.[26] while appellants Metano and
Silarca remained in the hut with Marina and Annie.
Appellant Silarca testified that at about 9:30 p.m. on November 20, 1996, he, together
with appellant Metano and accused de los Reyes, was at appellant Pabionas nipa hut at
Barangay Agtambo to work on the nearby well when appellants Pabiona and Basalatan,
Teresita Basalatan and the victim arrived.[27] He then substantially corroborated appellant
Pabionas testimony regarding the events that transpired that night.
 The following morning, with appellant Metano, accused de los Reyes and the victim,
appellant Silarca prepared to work on the well. An iron bar, two bamboo poles and a
shovel were inside the well.[28] While the victim was going down the bamboo ladder, he
slipped on one of the rungs and let out a cry. [29] Appellants Silarca and accused de los
Reyes were about seven meters away while appellant Metano was about a meter away
when the victim slipped. Accused de los Reyes and appellant Metano went down the well
to help the victim who fell on the objects earlier placed therein while he ran to find
appellant Pabiona. He then corroborated appellant Pabionas version of the events that
transpired thereafter, adding only that they washed the victims body after lifting him from
the well in order to check his injuries, his body being covered by mud from the well.[30]
Appellant Basalatan corroborated his co-appellants version of what happened on the
night of November 20, 1996 and added that he and his wife Teresita left the nipa hut at
Barangay Agtambo at about 11:30 p.m. and proceeded to their home. [31] The following
day, at about 6:30 a.m., he traveled to Iloilo City for some business and went home to
Passi, Iloilo at about 4 p.m. He was then informed by his wife that the victim died after
falling from the well at appellant Pabionas farm.[32]
Appellant Metano corroborated his co-appellants testimonies.
Rosalina Padernal, the aunt of Michael Pagayon, testified that, contrary to her
nephews testimony, Michael did not spend the night at her house on November 20,
1996.[33]She likewise testified that sometime in April 1997, Michael, together with a
companion, went to her house and told her that if anyone asks whether he spent the night
at her place on November 20, 1996, she should answer in the affirmative.[34]
By Decision of May 30, 2000, the trial court found appellants guilty of murder. The
dispositive portion reads, quoted verbatim:

WHEREFORE, premises considered and in the light of the facts obtaining and the
jurisprudence aforecited, judgment is hereby rendered finding the accused Benjie
Pabiona, Roselo Basalatan, Antonio Silarca and Roberto Metano GUILTY beyond
reasonable doubt of the crime of MURDER hereby sentencing the aforenamed
accused to a penalty of RECLUSION PERPETUA and further condemning all of the
said accused to indemnify the heirs of the victim actual damages in the amount of
P232,100.00 and death compensation in the sum of P50,000.00

The bail bond posted by the accused are ordered cancelled and their subsequent arrest
and confinement is ordered. The Jail Warden, Iloilo Rehabilitation Center, is ordered
to remit (sic) National Penitentiary, New Bilibid Prison, Muntinlupa City at the
earliest opportunity.

Let there be issued an alias order of arrest to the accused Christopher de los Reyes
who remained (sic) at-large up to the present time.

SO ORDERED.[35]
 Dissatisfied with the decision, the four appellants filed their Notice of
Appeal[36] on July 20, 2000.
In their joint brief of February 4, 2002, appellants Basalatan and Silarca assign the
following as errors of the trial court:
I

THE HONORABLE TRIAL COURT ERRED IN GIVEN (sic) CREDENCE TO

THE UNCORROBORATED TESTIMONY OF THE LONE WITNESS OF THE
PROSECUTION MICHAEL PAGAYON

II

THE PROSECUTION EVIDENCE IS PURELY CIRCUMSTANTIAL AND DOES

NOT SATISFY THE REQUIREMENTS FOR SUFFICIENCY OF
CIRCUMSTANTIAL EVIDENCE TO CONVICT THE ACCUSED

III

THE PROSECUTION HAS NOT OVERCOME THE BURDEN OF PROVING THE

GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT[37]

In his brief of March 9, 2002, appellant Pabiona imputes the following errors:
I

THE HONORABLE TRIAL COURT ERRED IN GIVING WEIGHT AND

CREDENCE TO THE UNCORROBORATED TESTIMONY OF LONE EYE-
WITNESS MICHAEL PAGAYON

II

THE HONORABLE TRIAL COURT ERRED IN HOLDING THAT, IN THE

ALTERNATIVE, THERE IS CIRCUMSTANTIAL EVIDENCE SUFFICIENT TO
WARRANT CONVICTION OF THE ACCUSED

III

THE HONORABLE TRIAL COURT ERRED IN FINDING THE ACCUSED

GUILTY OF THE CRIME OF MURDER BEYOND REASONABLE DOUBT[38]

Per certification[39] dated April 9, 2003 issued by Assistant Director Joselito A.

Fajardo of the Bureau of Corrections, Muntinlupa City, this Court was informed of the
death of appellant Metano on August 30, 2002.[40]
 In rendering its decision, the trial court disregarded appellants version of what
transpired and relied on circumstantial evidence culled from the testimonies of the
prosecution witnesses, which it enumerated as follows:

a) the accused Benjie Pabiona and Roselo Basalatan personally brought the victim
Robert Pagayon to the crime scene in the evening of November 20, 1996 situated on
the property of the Pabiona family;

b) the presence of all the accused in the scene of the crime immediately before, during
and immediately after the incident;

c) no one reported the death of the victim to the police authorities nor to any barangay
officials;

d) the victim was not brought by the accused to the hospital immediately after the
incident;

e) the driver and a laborer of Pamplona Funeral Homes were instructed not to bring
any casket when they got the cadaver of the victim from the crime scene;

f) the cadaver of the victim was washed by the accused and seen by the victims
mother naked with his clothes nowhere to be found except for a stripe (sic) short pants
on not belonging to the victim;

g) the well where the victim accidentally fell as claimed by the accused is only five
(5) meters deep with sandy soil and one (1) foot deep water at the bottom thereof; and

h) no other person/persons were present before, during and after the incident except
the five (5) accused.[41]

The trial court likewise relied upon the testimony of Michael Pagayon, the pertinent
portions of which read:
Q: Because you said you slept in the house of your aunt Rosalina Padernal because you
were not able to catch up (sic) a ride at 6:00 oclock, at 9:00 oclock in the evening,
where were you specifically at Brgy. Agtambo?
A: At around 9:00 oclock I went to a store to buy cigarettes but the store was already
closed.
Q: Because the store was already closed at 9:00 oclock when you intended to buy
cigarettes, what happened next?
A: I walked home because there was no cigarettes.
Q: From the store where you intended to buy cigarettes from the house of your aunt
Rosalina Padernal, how far is that in terms of meters, more or less?
A: About 300 meters.
xxx
Q: When you were walking from the store where you intended to buy cigarettes back to
your house, to the house of your aunt Rosalina Padernal, did you notice of (sic) any
unusual incident?
A: Yes, sir.
Q: What was that about?
A: I heard a shout asking for help.
Q: When you heard a shout asking for help, what did you do?
A: I went near.
Q: From where [did] that shout of help came (sic) from?
A: From the river.
Q: From where you were standing at that time towards the place in the river where the
shout came from, how far from (sic) you?
A: 10 meters.
Q: Were you able to reach the river where the shout for help came from?
A: No, sir.
Q: You said you were not able to reach the river where the shout came from, how many
meters more or less were you from the place where the shout came from?
A: 10 meters.
xxx
Q: You said you saw them mauling and kicking a person, why were you able to see those
people mauling and kicking a person?
A: Because I went there.
xxx
Q: How many people were mauling that person?
A: Five.
Q: How many persons were being mauled and kicked?
A: One.
Q: Do you know these persons who mauled the person?
A: Yes, sir.
Q: Can you mention their names?
A: Yes, sir.
Q: Please tell the Court?
A: Benjie Pabiona, Antonio Silarcan (sic), Roberto Metano (Witness pointing to persons
seated on the accused bench), Roselo Basalatan, Christopher delos Reyes.
Q: This Benjie Pabiona that you mentioned, is he inside the Courtroom?
A: Yes, sir.
Q: Please point to him? (Witness pointing to a person inside the Courtroom who when
asked answered to the name of Benjie Pabiona.
Q: How about Antonio Silarca, is he inside the Courtroom?
A: Yes, sir.
Q: Please point to the accused. (Witness pointing to a person when asked answered to
the name of Antonio Silarca).
Q: How about Roselo Basalatan? (Witness pointing to a person when asked answered
to the name of Roselo Basalatan).
Q: How about Roberto Metano? (Witness pointing to a person who answered to the
name of Roberto Metano).
Q: How about Christopher delos Reyes, is he inside the Courtroom?
A: No, sir.
Q: You said that these people were mauling aperson (sic), what was Benjie Pabiona
particularly doing at that time you saw (sic)?
A: Holding a bamboo.
Q: What was he doing with the bamboo?
A: Striking.
Q: While he was striking the person with the bamboo, was he saying anything?
A: Yes, sir.
Q: What did he say?
A: What I have heard, What did you tell, ha?
Q: How about this Antonio Silarca, what was he doing actually?
A: Also holding a bamboo.
Q: What was he doing with the bamboo?
A: Striking with the bamboo.
Q: How about Roselo Basalatan, what was he doing at that time?
A: Also holding a bamboo.
Q: What was he doing?
A: Also hitting.
Q: How about Roberto Metano, what was he doing at that time?
A: Also the same.
Q: How about Christopher delos Reyes, what was he doing at that time?
A: Also the same.
Q: Have you seen how big is the bamboo being held by Benjie Pabiona?
A: Yes, sir.
Q: Will you please show?
A: As big as my wrist which is about 2 inches in diameter.
xxx
Q: At thattime (sic), at about 9:00 oclock in the evening that you saw these people
mauling the person, do you know the person being mauled at that time?
A: No, sir.
Q: Because that night you did not know who the person being mauled (sic), what did you
do?
A: I went home.
Q: You went home to whose house?
A: Antie (sic) Saling.
Q: The following morning what time did you wake up?
A: 6:00 oclock.
Q: When you woke up where did you go?
A: I went back to Iloilo to my work.
xxx
Q: Were you present when Robert Pagayon died?
A: No, sir.
Q: So you do not personally know at what time did Robert Pagayon die?
A: No, sir.
Q: Also you do not know on what date Robert Pagayon died because you were not
there?
A: I do not know the time, place on November 21 and November 20 when he died.
Q: Also you do not know the actual circumstances and how Robert Pagayon died
because you were not there?
A: I know.
Q: You were there when Robert Pagayon died?
A: No, sir.
Q: So how did you know how Robert Pagayon died because you said you do (sic) were
not there?
 A: When he was mauled he is not yet dead.
Q: Did you see Robert Pagayon being mauled?
A: Yes, sir.
Q: You are very positive that you saw Robert Pagayon being mauled?
A: Yes, sir.
Q: You said that because you saw the person being mauled?
A: The one being mauled I do not know him when he was being mauled.
Q: And you are saying that you are merely making a conclusion and your opinion that
the person mauled was Robert Pagayon?
A: Yes, sir.
Q: That is your own belief?
A: Yes, sir.[42]
The fundamental issue in the instant appeal is whether or not there is sufficient
circumstantial evidence to sustain the trial courts judgment finding appellants guilty
beyond reasonable doubt.
Circumstantial evidence is that evidence which proves a fact or series of facts from
which the facts in issue may be established by inference.[43] Such evidence is founded on
experience and observed facts and coincidences establishing a connection between the
known and proven facts and the facts sought to be proved.[44]
Section 4 of Rule 133 of the Rules on Evidence provides that circumstantial evidence
is sufficient for conviction if the following requisites are complied with: (1) there is more
than one circumstance; (2) the facts from which the inferences are derived are proven;
and (3) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. With respect to the third requisite, the circumstantial evidence
presented must constitute an unbroken chain which leads to one fair and reasonable
conclusion pointing to the accused, to the exclusion of others, as the guilty person. [45] All
the circumstances must be consistent with each other, consistent with the hypothesis that
the accused is guilty, and at the same time inconsistent with the hypothesis that he is
innocent and with every other rational hypothesis except that of guilt. [46]
From a considered scrutiny of the evidence in the case at bar in light of the standards
set forth above, this Court holds that the evidence adduced by the prosecution does not
prove the guilt beyond reasonable doubt of appellants.
The evidence does not rule out the possibility that there had only been an accidental
death. Hitting ones head on a hard object such as an iron bar or shovel after accidentally
slipping could account for the fracture, blood clot and scalp hematoma found on the back
of the victims head which, in turn, could have caused his death soon thereafter. As
testified to by Dr. Lebaquin:
Q: Of these injuries mentioned, what could have been considered as the fatal injury
which caused the death?
 A: Fracture of the skull.
xxx
Q: In terms of minutes, how many minutes or hours will death occur after these injuries
were sustained?
A: There was a blood clot. I think immediately, it is possible the victim could have died
minutes after.
Q: 5 minutes?
A: Possible.
Q: 10 minutes?
A: Possible.[47]
The victims injuries, contrary to the trial courts evaluation, are more consistent with
appellants version of the events that transpired on November 21, 1996. While the victim
sustained a fracture, a hematoma and a blood clot on his head, the rest of the injuries on
his body are mere abrasions.[48] Abrasions are injuries characterized by the removal of
the superficial epithelial layer of the skin caused by rubbing or friction against a hard rough
surface.[49] Such abrasions found on the victims body are more likely to have been caused
by his slipping from the bamboo ladder and falling into the well rather than by force applied
by five able-bodied men striking him with bamboo poles and kicking him as claimed by
the prosecution. As testified to by Dr. Lebaquin:
Q: Next item, Injury No. 2. Abrasion, left mandibular area, measuring 2 x 0.5 cm. 9 cm.
from its anterior midline. Please point to the Court where is this situated?
A: Left jaw.
Q: In the laymans language, please kindly explain to the Court this injury?
A: In our dialect this is called gasgas, caused by rubbing in a rough surface.
Q: Please explain what could have caused this?
A: Rubbing of the skin at hard object.[50]
The mere presence of appellants at an alleged locus criminis does not suffice to
implicate them in a crime,[51] more so as in the case at bar where appellants presence
was sufficiently explained to have been due to their digging of the well on appellant
Pabionas property which commenced long before November 20, 1996.
While the motive of the accused in a criminal case is generally held to be immaterial,
not being an element of the crime, motive becomes important when, as in this case, the
evidence of the commission of the crime is purely circumstantial or inconclusive and there
is some doubt on whether a crime has been committed or whether the accused has
committed it.[52]
In the case at bar, the prosecution was unable to establish motive of the appellants
in allegedly perpetrating the offense charged. In fact, prosecution eyewitness Michael
Pagayon testified:
 Q: Before November 20, 1996, do you know if there was any misunderstanding or
quarrel between Robert Pagayon on the one hand and any or all of the accused
here in Court?
A: No, sir, he has no enemy.[53]
The records reveal, on the other hand, that the Pagayons enjoyed close relations with
appellants, Marina being, as reflected above, a co-member of the appellants in CMJM. It
was even shown that she was accustomed to sleeping over at the Pabiona residence at
every opportunity.[54]
This Court likewise notes prosecution eyewitness Michael Pagayons inordinate delay
in reporting what he allegedly saw on the night of November 20, 1996. Even after hearing
the radio news report on his cousin-the victims death on December 1, 1996 and deducing
that he was the victim of the mauling that he claimed to have witnessed, he only reported
such incident to his aunt Marina and the authorities two months later. It is but logical for
a relative who was an eyewitness to a crime to promptly and audaciously take the
necessary steps to bring the culprit into the hands of the law and seek justice for the poor
victim.[55]
It may be relevant to note too that while in his direct examination, Michael
categorically declared that he saw only five persons mauling an unidentified man, [56] in
his cross examination, he testified that there were actually seven men:
Q: In this affidavit of yours you stated that aside from the five accused here, there were
2 other persons because you said there were seven (7) persons mauling another,
do you remember that?
xxx
A: I saw the two but I do not know them.
Q: But during the direct examination you said there were five (5) persons who mauled
(sic)?
A: Yes, sir.[57]
That appellants were the malefactors cannot be simply inferred from the mere fact
that appellant Pabiona and his family offered to shoulder the expenses for the burial of
Robert. As the victim was in appellant Pabionas employ and died while working at his
well, it was not unnatural for him to make an offer to bear the expenses that Marina would
incur attendant to the burial of her son.
Nor can appellants failure to report the victims death to police authorities and
barangay officials be considered as an indication of their guilt, as the records show that
they, through their relatives,[58] immediately informed the victims mother and brother that
he died.
The other circumstances enumerated by the trial court are too equivocal to establish
appellants guilt beyond reasonable doubt.
In People v. Capili,[59] this Court similarly ruled that the circumstantial evidence
adduced by the prosecution was utterly inadequate to justify a judgment of conviction:
In fact, there is even some possibility that Baduas identification of accused-appellant
as the perpetrator was a mere afterthought, there being no definite lead as to the
identity of the author of the crime even after the lapse of several days following the
finding of the cadaver of the victim by the riverside on October 7, 1994. The
foregoing considerations taken together cast reasonable doubt on the culpability of
accused-appellant as killer of Alberto Capili. The evidence which stands on record
does not eliminate the possibility of absence of foul-play, i.e., that there had been only
an accidental death by drowning. Striking a rock after accidentally slipping could
cause contusions similar to those found at the back of the victims head and shoulders
and result in the loss of consciousness leading to drowning. Only by proof beyond
reasonable doubt, which requires moral certainty, may the presumption of innocence
be overcome. Moral certainty has been defined as a certainty that convinces and
satisfies the reason and conscience of those who are to act upon it. Absent the moral
certainty that accused-appellant caused the death of the victim, acquittal perforce
follows.[60]

It is a basic principle in criminal law that where the evidence is capable of two or more
inferences, one of which is consistent with the presumption of innocence and the other
compatible with a finding of guilt, the court must acquit the accused because the evidence
does not fulfill the test of moral certainty and therefore is insufficient to support a judgment
of conviction.[61] Where the evidence on an issue of fact is in equipoise or there is doubt
on which side the evidence preponderates, the party having the burden of proof loses.[62]
In the case at bar, two antithetical interpretations may be inferred from the evidence
presented. The pieces of circumstantial evidence do not inexorably lead to the conclusion
that appellants are guilty of the crime charged.
The circumstances proffered by the prosecution and relied upon by the trial court only
create suspicion that appellants probably perpetrated the crime charged. However, it is
not sufficient for a conviction that the evidence establishes a strong suspicion or
probability of guilt.[63]
The basis of acquittal in this case is reasonable doubt, the evidence for the
prosecution not being sufficient to sustain and prove the guilt of appellants with moral
certainty.By reasonable doubt is not meant that which of possibility may arise but it is that
doubt engendered by an investigation of the whole proof and an inability, after such an
investigation, to let the mind rest easy upon the certainty of guilt.[64] An acquittal based on
reasonable doubt will prosper even though the appellants innocence may be doubted, for
a criminal conviction rests on the strength of the evidence of the prosecution and not
on the weakness of the evidence of the defense.[65]
WHEREFORE, the May 30, 2000 decision of the Regional Trial Court of Iloilo City,
Branch 23 is hereby REVERSED and SET ASIDE. Appellants Benjie Pabiona, Roselo
Basalatan, and Antonio Silarca are ACQUITTED of the charge of murder on the ground
of reasonable doubt. Their immediate release from custody is hereby ordered unless they
are being held for other lawful causes.
 SO ORDERED.
Sandoval-Gutierrez, and Corona, JJ., concur.
Vitug, J., (Chairman), on official leave.

[1] Rollo at 29-64.

[2] Id. at 13.
[3] Records at 206.
[4] TSN, August 12, 1997 at 8.
[5] Id. at 15.
[6] Id. at 62.
[7] Id. at 19-20.
[8] Id. at 25.
[9] TSN, October 7, 1997 at 23.
[10] Id. at 31.
[11] Id. at 37.
[12] TSN, August 25, 1997 at 4.
[13] Id. at 6.
[14] Id. at 7.
[15] Exhibit G, Records at 7.
[16] TSN, August 26, 1997 at 6.
[17] Exhibit I, Records at 9.
[18] TSN, August 25, 1997 at 15.
[19] Exhibit A, Records at 1-2.
[20] TSN, August 3, 1999 at 6.
[21] Id. at 10.
[22] Id. at 12-13.
[23] Id. at 20-21.
[24] Id. at 25, TSN, November 12, 1998 at 21.
[25] TSN, August 31, 1999 at 4.
[26] TSN, August 3, 1999 at 28.
[27] TSN, November 12, 1998 at 4-5.
[28] Id. at 18.
[29] Id. at 10.
[30] Id. at 20-21.
[31] TSN, May 4, 1999 at 19.
[32] Id. at 21.
[33] TSN, September 15, 1998 at 7.
[34] Id. at 8.
[35] Rollo at 63-64.
[36] Id. at 65.
[37] Id. at 166.
[38] Id. at 112.
[39] Id. at 361.
[40] Id. at 362.
[41] Id. at 62-63.
[42] TSN, August 12, 1997 at 7-82.
[43] People v. Ayola, 364 SCRA 451, 461 (2001), People v. Lugod, 352 SCRA 498, 515 (citation
omitted), People v. Rondero 320 SCRA 383, 396 (1999) (citation omitted).
[44] People v. Ayola, 364 SCRA 451, 461 (2001) (citations omitted).
[45] People v. Sevilleno, G.R. No. 152954, March 10, 2004 (citation omitted), People v. Leao, 366 SCRA
774, 786 (2001), People v. Balderas, 276 SCRA 470, 483 (1997) (citation omitted).
[46] People v. Espina, 326 SCRA 753, 763 (2000) (citations omitted), Abad v. Court of Appeals, 291 SCRA
56, 61 (1998) (citations omitted), People v. De Guzman, 250 SCRA 118, 125-126 (1995) (citations
omitted).
[47] TSN, August 11, 1997 at 22-23.
[48] Exhibit A, Records at 1.
[49] P. SOLIS, LEGAL MEDICINE 260 (1987).
[50] TSN, August 11, 1997 at 10.
[51] Abad v. Court of Appeals, 291 SCRA 56, 62 (1998) (citations omitted), People v. Parel, 261 SCRA 720,
734-735 (1996).
[52] People v. Leao, 366 SCRA 774, 791 (2001), People v. Galano, 327 SCRA 462, 473-474 (2000).
[53] TSN, August 12, 1997 at 80.
[54] TSN, August 3, 1999 at 9-10.
[55] People v. Capili, 333 SCRA 354, 365 (2000).
[56] TSN, August 12, 1997 at 12.
[57] Id. at 77.
[58] TSN, August 25, 1997 at 3, TSN, October 7, 1997 at 23.
[59] 333 SCRA 354, 366 (2000).
[60] Id. at 366 (citations omitted).
[61] People v. Caete, G.R. No. 128321, March 11, 2004, People v. Leao, 366 SCRA 774, 791
(2001), People v. Ayola, 364 SCRA 451, 463 (2001) (citation omitted), People v. Mijares, 297
SCRA 520, 531 (1998) (citation omitted), People v. Cawaling, 293 SCRA 267, 307 (1998) (citation
omitted), People v. De Guzman, 250 SCRA 118, 126 (1995) (citation omitted).
[62] Tin v. People, 362 SCRA 594, 605 (2001) (citation omitted).
[63] People v. Morada, 307 SCRA 362, 380 (1999).
[64] People v. Caete, G.R. No. 128321, March 11, 2004.
[65] People v. Leao, 366 SCRA 774, 792 (2001).
 EN BANC

[G.R. No. 142773. January 28, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON DELIM,

LEON DELIM, MANUEL DELIM alias BONG (At Large), ROBERT
DELIM (At Large), and RONALD DELIM alias BONG, accused-
appellants.

DECISION
CALLEJO, SR., J.:

Before the Court on automatic review is the Decision,[1] dated January 14, 2000, of
the Regional Trial Court, Branch 46, Urdaneta City, finding accused-appellants Marlon
Delim, Leon Delim and Ronald Delim guilty beyond reasonable doubt of the crime of
murder and sentencing them to suffer the supreme penalty of death. The court also
ordered accused-appellants to pay, jointly and severally, the heirs of the victim the sums
of P75,000.00 as moral damages and P25,000.00 as exemplary damages.
Accused-appellants Marlon, Ronald and Leon, together with Manuel alias Bong and
Robert, all surnamed Delim, were indicted for murder under an Information dated May 4,
1999 which reads:

That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan,
and within the jurisdiction of this Honorable Court, the above-named accused, armed
with short firearms barged-in and entered the house of Modesto Delim and once
inside with intent to kill, treachery, evident premedidation (sic), conspiring with one
another, did then and there, wilfully, unlawfully and feloniously grab, hold, hogtie,
gag with a piece of cloth, brought out and abduct Modesto Delim, accused Leon
Delim and Manuel Delim stayed in the house guarded and prevented the wife and son
of Modesto Delim from helping the latter, thereafter with abuse of superior strength
stabbed and killed said Modesto Delim, to the damage and prejudice of his heirs.

CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act
No. 7659. [2]

Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim,
were apprehended. Accused Robert and Manuel remain at-large.
At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel,
pleaded not guilty to the charge.
 At the trial, the prosecution established the following relevant facts [3]
Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim
and Ronald Delim. Modesto Manalo Bantas, the victim, was an Igorot and a carpenter.He
took the surname Delim after he was adopted by the father of Marlon, Manuel and
Robert. However, Modestos wife, Rita, an illiterate, and their 16-year old son, Randy,
continued using Manalo Bantas as their surname. Modesto, Rita and Randy considered
Marlon, Robert, Ronald, Manuel and Leon as their relatives. Manuel and Leon were the
neighbors of Modesto. Marlon, Robert and Ronald used to visit Modesto and his
family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison,
Pangasinan.
On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were
preparing to have their supper in their home. Joining them were Modesto and Ritas two
young grandchildren, aged 5 and 7 years old. They were about to eat their dinner when
Marlon, Robert and Ronald suddenly barged into the house and closed the door. Each of
the three intruders was armed with a short handgun. Marlon poked his gun at Modesto
while Robert and Ronald simultaneously grabbed and hog-tied the victim. A piece of cloth
was placed in the mouth of Modesto.[4] Marlon, Robert and Ronald herded Modesto out of
the house on their way towards the direction of Paldit, Sison, Pangasinan. Rita and Randy
were warned by the intruders not to leave the house. Leon and Manuel, who were also
armed with short handguns, stayed put by the door to the house of Modesto and ordered
Rita and Randy to stay where they were. Leon and Manuel left the house of Modesto only
at around 7:00 a.m. the following day, January 24, 1999.
As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin
Nio, at Sitio Labayog, informed the latter of the incident the night before and sought his
help for the retrieval of Modesto. Randy was advised to report the matter to the police
authorities. However, Randy opted to first look for his father. He and his other relatives
scoured the vicinity to locate Modesto to no avail. They proceeded to Paldit, Sison,
Pangasinan, around 200 meters away from Modestos house, to locate Modesto but failed
to find him there. On January 25, 1999, Randy and his relatives returned to the housing
project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him
there.On January 26, 1999, Randy reported the incident to the police authorities.
At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his
relatives, Nida Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the
housing project in Paldit, Sison, Pangasinan and this time they found Modesto under thick
bushes in a grassy area. He was already dead. The cadaver was bloated and in the state
of decomposition. It exuded a bad odor. Tiny white worms swarmed over and feasted on
the cadaver. Randy and his relatives immediately rushed to the police station to report
the incident and to seek assistance.
When informed of the discovery of Modestos cadaver, the local chief of police and
SPO2 Jovencio Fajarito and other policemen rushed to the scene and saw the cadaver
under the thick bushes. Pictures were taken of the cadaver.[5] Rita and Randy divulged to
the police investigators the names and addresses of Marlon, Ronald, Robert, Leon and
Manuel, whom they claimed were responsible for the death of Modesto. Rita and Randy
were at a loss why the five malefactors seized Modesto and killed him. Rita and Randy
gave their respective sworn statements to the police investigators. [6] Police authorities
proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but failed to find them in
their respective houses. The police officers scoured the mountainous parts of Barangays
Immalog and Labayog to no avail.
The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy
report, which reads:

SIGNIFICANT EXTERNAL FINDINGS:

- Body - both upper extremities are flexed

- both lower extremities are flexed

- (+) body decomposition

- (+) worms coming out from injuries

- 10 x 10 ml. GSW, pre-auricular area, right

- 20 x 20 ml. GSW, mandibular areas, right

- 10 x 10 ml. GSW, maxillary area, right

- 10 x 10 ml. GSW, below middle nose, directed upward (POE)

- 30 x 40 ml. GSW, mid parieto occipital area (POEx)

- 2 x 1 cms. lacerated wound, right cheek

- 1 x 1 cm. stabbed wound, axillary area, left

- 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm

- 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm

- 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm

- 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm

- #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left
forearm

- 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm

 - 10 x 6 cms. Inflamed scrotum

- penis inflamed

SIGNIFICANT INTERNAL FINDINGS:

- no significant internal findings

CAUSE OF DEATH:

GUN SHOT WOUND, HEAD. [7]

The stab wounds sustained by Modesto on his left arm and forearm were defensive
wounds. The police investigators were able to confirm that Marlon, Ronald, Robert, Leon
and Manuel had no licenses for their firearms.[8]
Records of the PNP Criminal Investigation and Detection Group in Baguio City show
that Marlon had pending cases for robbery in the Regional Trial Court of Baguio City in
Criminal Case No. 16193-R, and for robbery in band in Criminal Cases Nos. 9801 and
9802 pending with the Regional Trial Court in Urdaneta, Pangasinan.[9]
To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi.[10]
Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his
brothers and sisters were in their house at Asan Norte, Sison, Pangasinan about two
kilometers away from Modestos house.
He denied having been in the house of Modesto on January 23, 1999 and of
abducting and killing him. He theorized that Rita and Randy falsely implicated him upon
the coaching of Melchor Javier who allegedly had a quarrel with him concerning politics.
Leon for his part averred that on January 23, 1999, he was in the house of his sister,
Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living
since 1997 after leaving Asan Norte, Sison, Pangasinan. Since then, he had been
working for Sally Asuncion at a hollow-block factory in that city where he was a stay-in
worker.
Sally Asuncion corroborated Leons alibi. She testified that Leon Delim never went
home to his hometown in Pangasinan during his employment. His sister, Hermelita
Estabillo, likewise averred that on January 23, 1999, his brother was at her house to give
her his laundry. She claimed that the distance between Laoag City and Bila, Sison,
Pangasinan can be traversed in six hours by bus. Leon presented a Barangay Certificate
to prove that he was a resident of Laoag City from January 1998 up to February 1999. [11]
Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998
up to January 29, 1999. During his stay there, he lived with his sister, Francisca
Delim. Upon his return to Manila on January 29, 1999, he immediately proceeded to
Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after his
sojourn in Dumaguete City.
 The trial court rendered judgment finding accused-appellants guilty of murder. The
dispositive portion of the trial courts decision reads:

WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby

rendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commission
of Aggravated Murder, an offense defined and penalized under Article 248 of the
Revised Penal Code, as amended by R.A. 7659 and the Court sentences Marlon
Delim, Ronald Delim and Leon Delim to suffer the penalty of DEATH, to be
implemented in the manner as provided for by law; the Court likewise orders the
accused, jointly and solidarily, to indemnify the heirs of Modesto Delim the sum of
P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary damages.

The Branch Clerk of Court is hereby ordered to transmit the entire records of this case
to the Honorable Supreme Court, and to prepare the mittimus fifteen (15) days from
date of promulgation.

The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail,
Urdaneta City is hereby ordered to transmit the persons of Marlon, Ronald and Leon,
all surnamed Delim to the New Bilibid Prisons, Muntinlupa City, fifteen days from
receipt of this decision.

SO ORDERED. [12]

The trial court appreciated treachery as a qualifying circumstance and of taking

advantage of superior strength, nighttime and use of unlicensed firearms as separate of
aggravating circumstances in the commission of the crime. Marlon, Ronald and Leon, in
their appeal brief, assail the decision alleging that:
I

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY

EXISTED IN THE CASE AT BAR.

III

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND

CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF ALIBI. [13]
 Before resolving the merits of the case at bar, we first resolve the matter of whether
the crime charged in the Information is murder or kidnapping. During the deliberation,
some distinguished members of the Court opined that under the Information, Marlon,
Ronald and Leon are charged with kidnapping under Article 267 of the Revised Penal
Code and not with murder in its aggravated form in light of the allegation therein that the
accused willfully, unlawfully and feloniously grab(bed), h(e)ld, hog-tie(d), gag(ged), with
a piece of cloth, brought out and abduct(ed) Modesto Delim (while) Leon Delim and
Manuel Delim stayed in the house (and) guarded and prevented the wife and son of
Modesto Delim from helping the latter. They submit that the foregoing allegation
constitutes the act of deprivation of liberty of the victim, the gravamen in the crime of
kidnapping. They contend that the fact that the Information went further to charge
accused with the killing of the victim should be of no moment, the real nature of the
criminal charge being determined not from the caption or the preamble of the Information
nor from the specification of the law alleged to have been violated these being conclusions
of law but by the actual recital of facts in the complaint or information. They further submit
that since the prosecution failed to prove motive on the part of Marlon, Ronald and Leon
to kill Modesto, they are not criminally liable for the death of the victim but only for
kidnapping the victim.
It bears stressing that in determining what crime is charged in an information, the
material inculpatory facts recited therein describing the crime charged in relation to the
penal law violated are controlling. Where the specific intent of the malefactor is
determinative of the crime charged such specific intent must be alleged in the
information and proved by the prosecution. A decade ago, this Court held in People
v. Isabelo Puno, et al.,[14] that for kidnapping to exist, there must be indubitable proof that
the actual specific intent of the malefactor is to deprive the offended party of his liberty
and not where such restraint of his freedom of action is merely an incident in the
commission of another offense primarily intended by the malefactor. This Court further
held:

x x x. Hence, as early as United States vs. Ancheta, and consistently reiterated

thereafter, it has been held that the detention and/or forcible taking away of the
victims by the accused, even for an appreciable period of time but for the primary and
ultimate purpose of killing them, holds the offenders liable for taking their lives or
such other offenses they committed in relation thereto, but the incidental deprivation
of the victims liberty does not constitute kidnapping or serious illegal detention. [15]

If the primary and ultimate purpose of the accused is to kill the victim, the incidental
deprivation of the victims liberty does not constitute the felony of kidnapping but is merely
a preparatory act to the killing, and hence, is merged into, or absorbed by, the killing of
the victim.[16] The crime committed would either be homicide or murder.
What is primordial then is the specific intent of the malefactors as disclosed in
the information or criminal complaint that is determinative of what crime the
accused is charged with--that of murder or kidnapping.
 Philippine and American penal laws have a common thread on the concept of specific
intent as an essential element of specific intent crimes. Specific intent is used to describe
a state of mind which exists where circumstances indicate that an offender actively
desired certain criminal consequences or objectively desired a specific result to follow his
act or failure to act.[17] Specific intent involves a state of the mind. It is the particular
purpose or specific intention in doing the prohibited act. Specific intent must be alleged in
the Information and proved by the state in a prosecution for a crime requiring specific
intent.[18] Kidnapping and murder are specific intent crimes.
Specific intent may be proved by direct evidence or by circumstantial evidence. It may
be inferred from the circumstances of the actions of the accused as established by the
evidence on record.[19]
Specific intent is not synonymous with motive. Motive generally is referred to as the
reason which prompts the accused to engage in a particular criminal activity. Motive is
not an essential element of a crime and hence the prosecution need not prove the
same. As a general rule, proof of motive for the commission of the offense charged does
not show guilt and absence of proof of such motive does not establish the innocence of
accused for the crime charged such as murder.[20] The history of crimes shows that
murders are generally committed from motives comparatively trivial. [21] Crime is rarely
rational. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent
is to deprive the victim of his/her liberty. If there is no motive for the crime, the accused
cannot be convicted for kidnapping.[22] In kidnapping for ransom, the motive is
ransom. Where accused kills the victim to avenge the death of a loved one, the motive is
revenge.
In this case, it is evident on the face of the Information that the specific intent of the
malefactors in barging into the house of Modesto was to kill him and that he was seized
precisely to kill him with the attendant modifying circumstances. The act of the
malefactors of abducting Modesto was merely incidental to their primary purpose of killing
him.Moreover, there is no specific allegation in the information that the primary
intent of the malefactors was to deprive Modesto of his freedom or liberty and that
killing him was merely incidental to kidnapping.[23] Irrefragably then, the crime charged
in the Information is Murder under Article 248 of the Revised Penal Code and not
Kidnapping under Article 268 thereof.
The threshold issue that now comes to fore is whether or not the prosecution
mustered the requisite quantum of evidence to prove that Marlon, Ronald and Leon are
guilty of murder.
In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused
beyond cavil of doubt. The prosecution must rely on the strength of its own evidence and
not on the weakness of the evidence of the accused. The proof against the accused must
survive the test of reason; the strongest suspicion must not be permitted to sway
judgment.[24]
In the case at bar, the prosecution was burdened to prove the corpus delicti which
consists of two things: first, the criminal act and second, defendants agency in the
commission of the act.[25] Wharton says that corpus delicti includes two things: first, the
objective; second, the subjective element of crimes.[26] In homicide (by dolo) and in murder
cases, the prosecution is burdened to prove: (a) the death of the party alleged to be
dead; (b) that the death was produced by the criminal act of some other than the
deceased and was not the result of accident, natural cause or suicide; and (c) that
defendant committed the criminal act or was in some way criminally responsible for the
act which produced the death.[27] To prove the felony of homicide or murder, there must
be incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed
(with malice); in other words, that there was intent to kill. Such evidence may consist inter
alia in the use of weapons by the malefactors, the nature, location and number of wounds
sustained by the victim and the words uttered by the malefactors before, at the time or
immediately after the killing of the victim. If the victim dies because of a deliberate act of
the malefactor, intent to kill is conclusively presumed.
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either
by direct evidence or by circumstantial or presumptive evidence.[28]
In the case at bar, the prosecution adduced the requisite quantum of proof of corpus
delicti. Modesto sustained five (5) gunshot wounds. He also sustained seven (7) stab
wounds,[29] defensive in nature. The use by the malefactors of deadly weapons, more
specifically handguns and knives, in the killing of the victim as well as the nature, number
and location of the wounds sustained by said victim are evidence of the intent by the
malefactors to kill the victim with all the consequences flowing therefrom. [30] As the State
Supreme Court of Wisconsin held in Cupps v. State:[31]

This rule, that every person is presumed to contemplate the ordinary and natural
consequences of his own acts, is applied even in capital cases. Because men generally
act deliberately and by the determination of their own will, and not from the impulse
of blind passion, the law presumes that every man always thus acts, until the contrary
appears. Therefore, when one man is found to have killed another, if the
circumstances of the homicide do not of themselves show that it was not intended, but
was accidental, it is presumed that the death of the deceased was designed by the
slayer; and the burden of proof is on him to show that it was otherwise.

The prosecution did not present direct evidence to prove the authors of the killing of
Modesto. It relied on circumstantial evidence to discharge its burden of proving the guilt
of accused-appellants of murder. Circumstantial evidence consists of proof of collateral
facts and circumstances from which the existence of the main fact may be inferred
according to reason and common experience.[32] What was once a rule of account
respectability is now entombed in Section 4, Rule 133 of the Revised Rules of Evidence
which states that circumstantial evidence, sometimes referred to as indirect or
presumptive evidence, is sufficient as anchor for a judgment of conviction if the following
requisites concur:

x x x if (a) there is more than one circumstance; (b) the facts from which the
inferences are derived have been established; and (c) the combination of all the
circumstances is such as to warrant a finding of guilt beyond reasonable doubt. [33]
 The prosecution is burdened to prove the essential events which constitute a compact
mass of circumstantial evidence, and the proof of each being confirmed by the proof of
the other, and all without exception leading by mutual support to but one conclusion: the
guilt of accused for the offense charged.[34] For circumstantial evidence to be sufficient to
support a conviction, all the circumstances must be consistent with each other, consistent
with the hypothesis that accused is guilty and at the same time inconsistent with the
hypothesis that he is innocent, and with every other rational hypothesis except that of
guilt.[35] If the prosecution adduced the requisite circumstantial evidence to prove the guilt
of accused beyond reasonable doubt, the burden of evidence shifts to the accused to
controvert the evidence of the prosecution.
In the present case, the prosecution mustered the requisite quantum of circumstantial
evidence to prove that accused-appellants, in confabulation with their co-accused,
conspired to kill and did kill Modesto:
1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto,
each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied
Modesto. They then seized Modesto and herded him out of his house:
FISCAL TOMBOC: What were you doing then at that time in your house?
A We were eating, sir.
Q You said we, who were your companions eating then at that time?
A My father, my mother and the two children and myself, sir.
Q While taking your supper that time, do you recall if there was anything unusual that
happened at that time?
A When we were about to start to eat three armed men entered our house.
Q Do you know these three armed men who entered your house?
A Yes, sir.
Q Who are they, name them one by one?
A Marlon Delim, Robert Delim and Ronald Delim.
Q Are these three persons inside the courtroom now?
A Two of them, sir.
Q Who are these two who are inside the courtroom?
A Marlon and Ronald, sir.
Q Will you please stand up and point to them?
A (Witness is pointing to a person seated on the bench inside the courtroom, who, when
his name was asked answered Marlon Delim. Likewise, witness is pointing unto a
person seated on the bench inside the courtroom, who, when his name was asked
he answered Ronald Delim).
Q You said that these two armed persons entered your house, what kind of arm were
they carrying at that time?
A Short handgun, sir.
Q When these three armed persons whom you have mentioned, armed with short
firearms, what did they do then when they entered your house?
A They took my father, sir.
Q Who took your father?
A Marlon Delim, Robert Delim and Ronald Delim, sir.
Q When these three persons took your father, what did you do then?
A None, sir.
COURT: How did they get your father?
A They poked a gun and brought him outside the house, sir.
FISCAL TOMBOC: Who poked a gun?
A Marlon Delim, sir.
Q Again, Mr. Witness, will you point to the person who poked a gun?
A (Witness is pointing to Malon (sic) Delim, one of the accused).
Q After bringing your father out from your house, what transpired next?
A Manuel Delim and Leon Delim said, Stay in your house, and guarded us.
COURT: You said your father was taken out, who?
A Marlon, Robert and Ronald, sir.
FISCAL TOMBOC: Where did these three persons bring your father?
A I do not know where they brought my father, sir.
COURT: Was your father taken inside your house or outside?
A Inside our house, sir.
Q You said that Marlon poked a gun at your father, is that correct?
A Yes, sir.
Q What did Ronald and Robert do while Marlon was poking his gun to your father?
A Ronald and Robert were the ones who pulled my father out, sir.[36]
Randys account of the incident was corroborated by his mother, Rita, who testified:
PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999
at around 6:30 in the evening while preparing for your supper three (3) armed men
entered inside your house, who were these three (3) men who entered your house?
A I know, Marlon, Bongbong and Robert, sir.
ATTY. FLORENDO: We just make of record that the witness is taking her time to answer,
Your Honor.
 PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong
entered your house, are these three (3) persons who entered your house in Court
now?
A They are here except the other one, sir.
Q Will you please step down and point to the persons who entered your house?
A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is
Ronald Delim.
Q After these three (3) armed men entered your house, what happened then?
A My husband was brought out, sir.
Q What is the name of your husband?
A Modesto Delim, sir.[37]
2. Randy said that when Marlon and Ronald barged into their house, Leon, armed
with a handgun, acted as a lookout when he stood guard by the door of the house of
Modesto and remained thereat until 7:00 a.m. of the next day:
FISCAL TOMBOC: When your father was pulled out from your house by these three
persons, what did you and your mother do while these three persons were taking
out of your house?
A We did not do anything because Manuel and Leon Delim guarded us.
COURT: Where, in your house?
A Yes, sir.
FISCAL TOMBOC: From that very time that your father was pulled out by these three
persons Marlon, Robert and Ronal (sic), where were Leon and Manuel then?
A They were at the door, sir.
COURT: Why do you know that they were guarding you?
A Because they were at the door, sir.
FISCAL TOMBOC: What was their appearance that time when these two persons were
guarding you, these Leon and Manuel?
A They were armed, sir.
Q What do you mean by armed?
A They have gun, sir.
Q What kind of firearm?
A Short firearm, sir.
Q By the way, where are these Leon and Manuel now, if you know?
A Leon is here, sir.
Q About Manuel?
A None, sir.
 Q Will you please stand up and point at Leon, Mr. Witness?
A (Witness pointed to a person seated on the bench inside the courtroom, who when his
name was asked, answered, Leon Delim).[38]
3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon
left the house with Modesto in tow. Rita and Randy were detained in their house up to
7:00 a.m. of January 24, 1999 to prevent them from seeking help from their relatives and
police authorities.
4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver
of Modesto was found under the thick bushes in a grassy area in the housing project
located about 200 meters away from the house of Modesto. The cadaver exuded bad
odor and was already in the state of decomposition:
Q So what did you do then on January 27, where did you look for your father?
A The same place and at 3:00 oclock P.M., we were able to find my father.
COURT: Where?
A At the housing project at Paldit, Sison, Pangasinan, sir.
FISCAL TOMBOC: Do you have companions at that time when you were able to look for
your father on January 27, 1999 at 3:00 oclock P.M.?
A Yes, sir.
Q Who?
A My Aunt, sir.
Q What is the name of your Aunt?
A Nida Pucal, sir.
Q Who else?
A Pepito Pucal, Bernard Osias and Daniel Delim, sir.
COURT: When you found your father, what was his condition?
A He was dead, sir.
COURT: Go ahead.
FISCAL TOMBOC: You said that he was already dead, what was his appearance then
when you saw him dead?
A He has bad odor, sir, in the state of decompsition (sic).[39]
The testimony of Randy was corroborated by Dr. de Guzman who testified that the
cadaver of Modesto was in a state of decomposition, with tiny white worms crawling from
his wounds, and that his penis and scrotum were inflamed. The victim sustained five
gunshot wounds and defensive wounds on the left arm and forearm:
PROS. TOMBOC:
Q Will you please tell the Honorable Court your findings, Doctora?
 WITNESS:
A First finding: Upon seeing the cadaver, this is the position of the body, both upper
extremities are flexed and both lower extremities are flexed (Nakakukot).
Q How many days had already elapsed when you autopsied the cadaver of the victim,
Doctora?
A Four (4) days upon the recovery of the body, sir.
Q And what was your findings Doctora?
A The body was already under the state of decomposition, sir, with foul odor and there
were so many worms coming out from the injuries, there were tiny white worms, sir.
Q What else did you observe Doctora?
A Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the victim
was an igorot (sic) and they have tradition that they will bury immediately. Whether
they like it or not I should do it, sir.
Q What else Doctora?
A And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.
And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was
also 20 ml x 20 ml. GSW, mandibular area, right; I cannot also determine the exit.
Q So there were two (2) gunshot wounds (GSW) Doctora?
A Yes sir.
And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml.
GSW, below middle nose, directed upward (POE); and there was also 30 x 40 ml.
GSW, mid parieto-occipital area (POEx).
Q How many all in all are the gunshot wound?
A Five (5) sir.
And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed wound,
axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x 1 cm.
stabbed wound lateral aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial
aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm; and
#3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left
forearm.
Q How many stabbed wound are there Doctora?
A There were seven (7) stabbed wounds, sir.
Q Those stabbed wounds were defensive wounds, Doctora?
A Yes sir.[40]
The state of decomposition of the cadaver, with tiny white worms swarming and
feasting on it and the distention of his scrotum and penis are evidence that the cadaver
was in the stage of putrefaction and that the victim had been dead for a period ranging
from three to six days.[41] Admittedly, there are variant factors determinative of the exact
death of the victim. An equally persuasive authority states:

Chronological Sequence of Putrefactive Changes Occurring in Tropical Region:

Time Since Death Condition of the Body

48 hours Ova of flies seen.

Trunk bloated. Face discolored and swollen. Blisters

present.

Moving maggots seen.

72 hours Whole body grossly swollen and

disfigured. Hair and nails loose.

Tissues soft and discolored. [42]

The lapse of two or three to four days from the seizure of the victim in the evening of
January 23, 1999 to the discovery of his cadaver which was already in the state of
putrefaction in the afternoon of January 27, 1999, about 200 meters away from his house,
is consistent with and confirmatory of the contention of the prosecution that the victim was
killed precisely by the very malefactors who seized him on January 23, 1999.
5. When police authorities went to the residences of all the malefactors, the latter had
flown the coop and were nowhere to be found:
COURT: In connection with this case, you investigated the wife and son of Modesto
Delim?
A Yes, sir.
Q In the course of the investigation did you come to know who were the suspects?
A Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his
brothers, sir.
Q What are the names of the brothers?
A Manuel Delim, Leon Delim I cannot remember the others, sir.
Q By reason of that information were you able to apprehend any of them for
investigation?
A No, sir.
Q Why?
A Because when we were dispatched by the Chief of Police no Delim brothers could be
found, they all left the place, sir.
 Q In what place did you look for the brothers Delim?
A Within the vicinity, sir.
Q In what place?
A Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place
where the cadaver was found in Paldit, sir.
Q Where did you look for the Delim brothers?
A Nearby barangays, Immalog, sir.
Q Wherelse (sic)?
A Labayog, Sison, sir.
Q Wherelse?
A In mountainous part of Immalog, part of Tuba Benguet, sir.
Q What was the result?
A Negative result, sir.[43]
6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go
to the house of Modesto and Rita:
COURT: These Leon and Manuel Delim are they known to you prior to that day, January
23, 1999?
A Yes, sir, I know them.
Q Why do you know Manuel and Leon prior to January 23, 1999?
A They are my neighbors, sir.
Q How about Marlon, Robert and Bongbong do you know them before January 23,
1999?
A I know them, sir.
Q Why do you know them?
A They used to go to our house, sir.
Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your
husbands name is Modesto Delim are they related with each other?
A Yes, sir.[44]
The sudden disappearance of Marlon, Ronald and Leon from their houses in
Barangay Bila, Sison is strong circumstantial evidence of their guilt for the death of
Modesto.Although flight after the commission of an offense does not create a legal
presumption of guilt, nevertheless, the same is admissible in evidence against them and
if not satisfactorily explained in a manner consistent with their innocence, will tend to show
that they, in fact, killed Modesto.[45]
It is true that the prosecution failed to prove motive on the part of the malefactors to
abduct and kill Modesto. Indeed, Randy and Rita testified that they were not aware of any
misunderstanding or grudge between Modesto on the one hand and Marlon, Ronald and
Leon and their co-accused on the other before the incident, or any motivation on the part
of the three malefactors to cause harm to Modesto. Nonetheless, it cannot thereby be
concluded that a person or persons other than Marlon, Ronald and Leon were criminally
responsible for the death of the victim. It is a matter of judicial notice that nowadays
persons have killed or committed serious crimes for no reason at all. [46] In this case, the
inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun,
forcibly took Modesto from his house at the gunpoint, hogtied, put a piece of cloth in his
mouth and after Ronald and Marlon had left the house with Modesto in tow, Rita heard
three gunshots or so and the cadaver of Modesto was found concealed under the bushes
and already in a state of putrefaction in the afternoon of January 27, 1999. Modesto
sustained several gunshot wounds and died because of a gunshot wound on the
head. The criminal acts and the connection of Marlon, Ronald and Leon with said acts
having been proved by the prosecution beyond reasonable doubt, the act itself furnishes
the evidence, that to its perpetration there was some causes or influences moving the
mind.[47] The remarkable tapestry intricately woven by the prosecution should not be
trashed simply because the malefactors had no motive to kill Modesto.
Ranged against the evidence of the prosecution, the burden of evidence shifted on
Marlon, Ronald and Leon to rebut the same and explain what happened to the victim after
taking him from his house in the evening of January 23, 1999. They may have freed the
victim shortly after taking him, or the victim may have been able to escape and that
thereafter a person or some other persons may have killed him. However, Marlon, Ronald
and Leon failed to give any explanation. Instead, they merely denied having seized and
killed the victim and interposed alibi as their defense.
Leon is equally guilty for the death of Modesto because the evidence on record shows
that he conspired with accused-appellants Marlon and Ronald and accused Robert and
Manuel in killing the victim.
There is conspiracy when two or more persons agree to commit a felony and decide
to commit it.[48] Conspiracy must be proven with the same quantum of evidence as the
felony itself, more specifically by proof beyond reasonable doubt. Conspiracy is not
presumed. It may be proved by direct evidence or by circumstantial evidence. Conspiracy
is deducible from the acts of the malefactors before, during and after the commission of
the crime which are indicative of a joint purpose, concerted action and concurrence of
sentiment.[49] To establish conspiracy, it is not essential that there be proof as to the
existence of a previous agreement to commit a crime.[50] It is sufficient if, at the time of the
commission of the crime, the accused had the same purpose and were united in its
execution. If conspiracy is established, the act of one is deemed the act of all. It matters
not who among the accused actually shot and killed the victim. [51] This is based on the
theory of a joint or mutual agency ad hoc for the prosecution of the common plan:

x x x The acts and declarations of an agent, within the scope of his authority, are
considered and treated as the acts and declarations of his principal. What is so done by
an agent, is done by the principal through him, as his mere instrument. Franklin Bank
of Baltimore v. Pennsylvania D. & M. Steam Navigation Co., 11 G. & J. 28, 33
(1839). If the conspiracy be proved to have existed, or rather if evidence be given to
the jury of its existence, the acts of one in furtherance of the common design are the
acts of all; and whatever one does in furtherance of the common design, he does as the
agent of the co-conspirators. R. v. OConnell, 5 St.Tr. (N.S.) 1, 710. [52]

In the eyes of the law, conspirators are one man, they breathe one breath, they speak
one voice, they wield one arm and the law says that the acts, words and declaration of
each, while in the pursuit of the common design, are the acts, words and declarations of
all.[53]
In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto,
each armed with a handgun. Marlon and Ronald barged into said house while Leon stood
guard by the door thereof. After Marlon and Ronald had left with Modesto in tow, Leon
stood by the door and warned Randy and Rita not to leave the house. Leon stood guard
by the door of the house until 7:00 a.m. of January 24, 1999 when he left the house. The
overt acts of all the malefactors were so synchronized and executed with precision
evincing a preconceived plan or design of all the malefactors to achieve a common
purpose, namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in the
commission of the crime were (a) to act as a lookout; (b) to ensure that Rita and Randy
remain in their house to prevent them from seeking assistance from police authorities and
their relatives before their mission to kill Modesto shall have been a fait accompli as well
as the escape of Marlon and Ronald.[54] Patently, Leon, a lookout for the group, is guilty of
the killing of Modesto.[55] Leon may not have been at the situs criminis when Modesto was
killed by Marlon and Ronald nevertheless he is a principal by direct participation. [56] If part
of a crime has been committed in one place and part in another, each person concerned
in the commission of either part is liable as principal. No matter how wide may be the
separation of the conspirators, if they are all engaged in a common plan for the execution
of a felony and all take their part in furtherance of the common design, all are liable as
principals. Actual presence is not necessary if there is a direct connection between the
actor and the crime. [57]
Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging
that the same were marred by inconsistencies:
1. Randy initially stated that he did not know where the assailants brought his
father. Later however, Randy claimed that the malefactors proceeded to the direction
of Paldit, Sison, Pangasinan;
2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into
their house. She later changed her testimony and declared that it was Robert,
together with Marlon and Ronald who barged into the house;
3. Rita likewise testified that two men stood outside the house guarding them. Later, she
testified that after the three men brought out the victim, the two other accused entered
the house and guarded them there;
4. Rita claimed that she went out to look for her husband the next day, or on January 25,
1999, and she was accompanied by her son Randy. However, Randy testified that he
was alone when he looked for his father from January 24 to 26, 1999.[58]
 We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of
facts of the trial court, its calibration of the collective testimonies of witnesses and its
assessment of the probative weight thereof and its conclusions culled from its findings
are accorded by the appellate court great respect, if not conclusive effect, because of its
unique advantage of observing at close range the demeanor, deportment and conduct of
the witnesses as they give their testimonies before the court. In the present case, the trial
court gave credence and full probative weight to the testimonies of the witnesses of the
prosecution. Moreover, there is no evidence on record that Randy and Rita were moved
by any improper or ill motive in testifying against the malefactors and the other accused;
hence, their testimonies must be given full credit and probative weight. [59] The
inconsistencies in the testimonies of Rita and Randy do not render them incredible or
their testimonies barren of probative weight. It must be borne in mind that human memory
is not as unerring as a photograph and a persons sense of observation is impaired by
many factors including the shocking effect of a crime. A truth-telling witness is not always
expected to give an error-free testimony considering the lapse of time and the treachery
of human memory. What is primordial is that the mass of testimony jibes on material
points, the slight clashing of statements dilute neither the witnesses credibility nor the
veracity of his testimony.[60] Variations on the testimony of witnesses on the same side with
respect to minor, collateral or incidental matters do not impair the weight of their united
testimony to the prominent facts.[61] Inconsistencies on minor and trivial matters only serve
to strengthen rather than weaken the credibility of witnesses for they erase the suspicion
of rehearsed testimony.[62]
Moreover, the testimony of a witness should be construed in its entirety and not in
truncated terms and the true meaning of answers to isolated questions propounded to a
witness is to be ascertained by due consideration of all the questions propounded to the
witness and his answers thereto.[63]
Randys testimony that he did know where the malefactors brought his father is not
inconsistent with his testimony that Ronald and Marlon brought his father towards the
direction of Paldit, Sison, Pangasinan. Randy may not have known the destination of
accused-appellants but he saw the direction to which they went. While it may be true that
when asked to identify the three who barged into their house, Rita pointed to Leon as one
of them, however, Rita had been consistent throughout her testimony that those who
barged into their house were Ronald and Marlon. Leons counsel never cross-examined
Rita and impeached her testimony on her identification of Leon as one of those who
barged into their house to give her an opportunity to explain her perceived inconsistency
conformably with Rule 132, Section 13 of the Revised Rules of Evidence which reads:

Before a witness can be impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the statements must be related to
him, with the circumstances of the times and places and the persons present, and he
must be asked whether he made such statements, and if so, allowed to explain them. If
the statements be in writing they must be shown to the witness before any question is
put to him concerning them. [64]
 Hence, the presentation of the inconsistent statements made by Rita is insufficient
for the desired impeachment of her.[65] As to whether Rita and Randy were together in
looking for Modesto or Leon merely stood guard by the door of the house or entered the
house are inconsequential. The fact is that Leon stood guard throughout the night to
prevent Rita and Randy from seeking assistance for the seizure and killing of Modesto.
This Court is convinced, as the trial court was, that the respective testimonies of
Randy and Rita bear the earmarks of truth and sincerity. Despite intense and grueling
cross-examination, they responded with consistency upon material details that could only
come from a firsthand knowledge of the shocking events which unfolded before their
eyes. The Court thus finds no cogent reason to disregard the findings of the trial court
regarding their credibility.
Marlon, Ronald and Leon contend that the trial court committed a reversible error in
not giving credence and probative weight to their evidence to prove their defense of
alibi. They aver that their collective evidence to prove their defense is strong.
We do not agree. Case law has it that the defense of alibi is one of the weakest of
defenses in criminal prosecution because the same is easy to concoct between relatives,
friends and even those not related to the offender. [66] It is hard for the prosecution to
disprove. For alibi to merit approbation by the trial court and this Court, Marlon, Ronald
and Leon are burdened to prove with clear and convincing evidence that they were in a
place other than the situs criminis at the time of the commission of the crime; that it was
physically impossible for them to have committed the said crime.[67] They failed to
discharge their burden. Moreover, Rita and Randy positively and spontaneously identified
Marlon, Ronald and Leon as the culprits. The house of Ronald, where he claimed he was
when the crime was committed, was only two kilometers away from the house of Modesto
and can be negotiated by a tricycle. Leon failed to adduce any documentary evidence to
prove his employment by Sally Asuncion. The barefaced fact that he was a resident of
Laoag City does not constitute proof that he was in Laoag City on the day of the
commission of the crime. With respect to Marlon, he failed to adduce evidence aside from
his self-serving testimony that he resided in, left Dumaguete City and arrived in Manila on
January 29, 1999.
The trial court convicted Marlon, Ronald and Leon of murder with the qualifying
circumstance of treachery in the killing of Modesto. The trial court likewise appreciated
nighttime and abuse of superior strength and the use of unlicensed firearms as separate
aggravating circumstances. The Office of the Solicitor General contends that indeed
treachery was attendant in the killing of Modesto. Hence, Marlon, Ronald and Leon are
guilty of murder defined in and penalized by Article 248 of the Revised Penal Code.
The Court however finds that Marlon, Ronald and Leon are guilty only of homicide
defined in and penalized by Article 248 of the Revised Penal Code.
Qualifying circumstances such as treachery and abuse of superior strength must be
alleged and proved clearly and conclusively as the crime itself. Mere conjectures,
suppositions or presumptions are utterly insufficient and cannot produce the effect of
qualifying the crime.[68] As this Court held: No matter how truthful these suppositions or
presumptions may seem, they must not and cannot produce the effect of aggravating the
condition of defendant.[69] Article 14, paragraph 16 of the Revised Penal Code provides
that 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
especially to insure its execution, without risk to himself arising from the defense which
the offended party might make. For treachery to be appreciated as a qualifying
circumstance, the prosecution is burdened to prove the following elements: (a) the
employment of means of execution which gives the person attacked no opportunity to
defend himself or retaliate; (b) the means of execution is deliberately or consciously
adopted.[70] Although the victim may have been defenseless at the time he was seized but
there is no evidence as to the particulars of how he was assaulted and killed, treachery
cannot be appreciated against the accused.[71] In this case, the victim was defenseless
when seized by Marlon and Ronald. However, the prosecution failed to present any
witness or conclusive evidence that Modesto was defenseless immediately before and
when he was attacked and killed. It cannot be presumed that although he was
defenseless when he was seized the victim was in the same situation when he was
attacked, shot and stabbed by the malefactors. To take advantage of superior strength
means to purposely use force that is out of proportion to the means of defense available
to the person attacked.[72] What is primordial, this Court held in People v. Rogelio
Francisco[73] is that the assailants deliberately took advantage of their combined
strength in order to consummate the crime. It is necessary to show that the
malefactors cooperated in such a way as to secure advantage from their superiority in
strength.[74] In this case, the prosecution failed to adduce evidence that Marlon and Ronald
deliberately took advantage of their numerical superiority when Modesto was killed. The
barefaced facts that the malefactors outnumbered Modesto and were armed while
Modesto was not does not constitute proof that the three took advantage of their
numerical superioty and their handguns when Modesto was shot and stabbed. [75]
In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide
defined in and penalized by Article 249 of the Revised Penal Code with reclusion
temporalin its full period.
Although the special aggravating circumstance of the use of unlicensed firearms was
proven during the trial, there is no allegation in the Information that Marlon, Ronald and
Leon had no license to possess the firearm. Lack of license to possess a firearm is an
essential element of the crime of violation of PD1866 as amended by Republic Act No.
8294, or as a special aggravating circumstance in the felony of homicide or
murder.[76] Neither can dwelling, although proven, aggravate the crime because said
circumstance was not alleged in the Information as required by Rule 110, Section 8 of the
Revised Rules of Court.[77] Although this rule took effect on December 1, 2000, after the
commission of the offense in this case, nonetheless it had been given retroactive effect
considering that the rule is favorable to the accused.[78]
There being no modifying circumstances in the commission of homicide, Marlon,
Ronald and Leon should be meted an indeterminate penalty, the minimum of which shall
be taken from the entirety of prision mayor, ranging from 6 years and one day to 12 years
and the maximum period of which shall be taken from the medium period of reclusion
temporal, ranging from 14 years, 8 months and one day to 17 years and 4 months.
 Consequently, the award for damages in favor of the heirs of the victim should be
modified. The sum of P75,000.00 awarded as moral damages should be reduced
to P50,000.00 in accordance with prevailing jurisprudence. [79] The amount of P25,000.00
as exemplary damages is in order.[80] In addition, civil indemnity in the amount
of P50,000.00 should be awarded without need of proof, likewise in consonance with
prevailing jurisprudence.[81]
IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED
with MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim
are hereby found guilty beyond reasonable doubt of the felony of Homicide defined in and
penalized by Article 249 of the Revised Penal Code. There being no modifying
circumstances in the commission of the crime, each of accused-appellants is hereby
meted an indeterminate penalty of from ten (10) years and one (1) day of prision mayor in
its maximum period as minimum to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal in its medium period as maximum. Accused-appellants are hereby
ordered to pay, jointly and severally, to the heirs of the victim the amount of P50,000.00
by way of civil indemnity, the amount of P50,000.00 by way of moral damages and the
amount of P25,000.00 by way of exemplary damages.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio,
Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.
Vitug, J., see separate opinion.
Ynares-Santiago, and Sandoval-Gutierrez, JJ., joins the dissent of J. Vitug.

[1]
Penned by Judge Modesto C. Juanson.
[2]
Records, p. 1.
[3]
Prosecution presented four witnesses, namely, Rita Bantas, Randy Bantas, Dra. Maria Fe de Guzman
and SPO2 Jovencio Fajarito.
[4]
Records, Exhibit C.
[5]
Records, Exhibits C and C-1.
[6]
Records, Exhibits D and B.
[7]
Records, Exhibit A.
[8]
Records, Exhibit E.
[9]
Records, p. 34.
[10]
Accused-appellants testified and presented, as witnesses, Sally Asuncion, Hermelita Estabillo, Estelita
Delim and Flor Delim.
[11]
Records, Exhibit 2.
[12]
RTC Decision, pp. 9-10; Records, pp. 166-167.
[13]
Rollo, p. 51.
[14]
219 SCRA 85 (1993).
[15]
People v. Puno, et al., supra.
[16]
In People v. Ancheta, et al., 1 Phil. 165 (1902), it was held that where the victim was kidnapped by the
malefactors and brought to a place where he was killed by another malefactor, the crime was
murder because the primary intention of the malefactors was to kill him. In People v. Cajayon, et
al., 2 Phil. 570, the victim was taken from his house and brought to another province where he was
killed, the Court ruled that the malefactors were guilty of murder. In People v. Quinto, 82 Phil. 467,
the victim was taken by the malefactors from his house in Floridablanca, Pampanga and brought
to Gumain River where he was killed, this Court held that the crime was murder. In People v. Juan
Bulatao, 82 Phil. 743, the victim was taken from his house and was found dead the following
morning, this Court held that the malefactors were guilty of murder. In People v. Francisco Moreno,
85 Phil. 731, the victim was taken from his house in Aguilar, Pangasinan and brought to
Mangatarem, Pangasinan where he was killed, we ruled that the offenders were guilty of murder,
not kidnapping.
[17]
People v. Garland, 627 NE 2d 377.
[18]
State v. Mundy, 650 NE 2d 502.
[19]
21 Am Jur 2d, Criminal Law, pp. 214-215.
[20]
Cupps v. State, 97 Northwestern Reports, 210.
[21]
Wharton, Criminal Law, Vol. 1, p. 215.
[22]
People v. Manliguez, et al., 206 SCRA 812 (1992).
[23]
Records, p. 1.
[24]
People v. Dramayo, et al., 42 SCRA 59 (1971).
[25]
Gay v. State, 60 Southwestern Reporter, 771 (1901).
[26]
Ibid., note 22.
[27]
Wharton, Criminal Law, Vol. 1, pp. 473-474, citing Lovelady v. State, 14 Tex. App. 545).
[28]
People v. William Fulinara, et al., 247 SCRA 28 (1995).
[29]
Records, Exhibit A.
[30]
Warren v. State, 41 Southern Reporter 2d 201 (1949); State v. Roger, 182 Southwestern Reporter 2d
525 (1949).
[31]
97 Northwestern Reporter, 210 (1903).
[32]
Francisco, the Revised Rules of Court of the Philippines, Part II, Vol. VII, 1991 ed.
[33]
Supra.
[34]
People v. Elizaga, et al., 23 SCRA 449 (1968).
[35]
People v. Casingal, et al., 243 SCRA 37 (1995).
[36]
TSN, Bantas, pp. 4-6, August 18, 1999.
[37]
TSN, Delim, pp. 2-3, September 21, 1999.
[38]
Ibid., pp. 7-8, August 18, 1999.
[39]
TSN, Bantas, pp. 12-13, August 18, 1999.
[40]
TSN, De Guzman, pp. 5-6, August 16, 1999.
[41]
Wharton & Stille, Medical Jurisprudence, Vol. III, p. 39.
[42]
Casper, Forensic Medicine, cited by Modi, Medical Jurisprudence and Toxicology, 12 ed., 157, p. 134.
[43]
TSN, Fajarito, pp. 5-6, August 17, 1999.
[44]
TSN, Delim, p. 5, September 21, 1999.
[45]
People v. Erardo, 277 SCRA 643 (1997).
[46]
People v. Valdez, 304 SCRA 611 (1999).
[47]
Cupps v. State, supra.
[48]
Article 8, Revised Penal Code.
[49]
People v. Abordo, et al., 321 SCRA 23 (1999).
[50]
People v. Naredo, et al., 276 SCRA 489 (1997).
[51]
People v. Sequio, et al., 264 SCRA 79 (1996).
[52]
State v. Carbonne, et al., 91 Atlantic Reporter, A.2d 571.
[53]
Territory v. Goto, 27 Hawaii 65 (1923).
[54]
The detention of Rita and Randy in their house was only incidental to the consummation of the killing of
Modesto. Hence Marlon, Ronald and Leon are not liable for serious illegal detention (United
States v. Sol, et al., 9 Phil. 265 (1907).
[55]
People v. Diaz, et al., 167 SCRA 239 (1988).
[56]
People v. Santos, 84 Phil. 97 (1949); People v. Escober, 157 SCRA 541 (1988); People v. Nacional, 248
SCRA 122 (1995).
[57]
Wharton, Criminal Law, Vol. 1, p. 341.
[58]
Supra, p. 15; Rollo, p. 65.
[59]
People v. Estepano, et al., 307 SCRA 701 (1999).
[60]
People v. Bias, 320 SCRA 22 (1999).
[61]
People v. Lucena, 356 SCRA 90, 102 (2001).
[62]
People v. Dando, 325 SCRA 406, 424 (2000).
[63]
Francisco, Revised Rules of Court, Part II, Vol. VII, 1991 ed.
[64]
Supra.
[65]
People v. De Guzman, 288 SCRA 346 (1998).
[66]
Naval v. Panday, et al., 275 SCRA 654 (1997).
[67]
People v. Caete, et al., 287 SCRA 490 (1998).
[68]
People v. Garcia, 258 SCRA 422 (1996).
[69]
United States v. Perdon, 4 Phil. 143 (1905) cited in People v. Torejas, 43 SCRA 158 (1972).
[70]
People v. Silvestre, 307 SCRA 68 (1999).
[71]
People v. Durante, 53 Phil. 363 (1929); People v. Amanse, 80 Phil. 424 (1948); People v. Villaruel, 87
Phil. 826 (1950); People v. Silvestre, supra.
[72]
Alberts Commentaries on the Revised Penal Code, 1981 ed., Vol. 1, p. 396.
[73]
234 SCRA 333 (1994).
[74]
People v. Elizaga, 86 Phil. 365 (1950).
[75]
People v. Ibaez, Jr., 56 SCRA 210 (1974).
[76]
People v. Ave, G.R. No. 137274-75, October 18, 2002.
[77]
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.
[78]
People v. Salvador, G.R. No. 132481, August 14, 2002, p. 15.
[79]
People v. Agunias, et al., 279 SCRA 52 (1997).
[80]
People v. Catubig, 363 SCRA 621 (2001).
[81]
People v. Mejares, supra, p. 13.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-68969 January 22, 1988

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
USMAN HASSAN y AYUN, respondent.

SARMIENTO, J.:

This is a pauper's appeal of the decision 1 of the Regional Trial Court of Zamboanga City, Ninth Judicial Region Branch XIII, dated January
25, 1984, which "finds the accused USMAN HASSAN y AYUN guilty beyond reasonable doubt as principal of the Crime of MURDER, and
there being neither aggravating nor mitigating circumstance attending the commission of the crime, and pursuant to Paragraph No. 1 of
Article 64 of the Revised Penal Code, hereby imposes upon the said accused the penalty of RECLUSION PERPETUA and all its accessory
penalties; to indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the amount of P12,000.00 and to pay the costs." 2

Usman Hassan was accused of murder for stabbing to death Ramon Pichel, Jr. y Uro, 24, single,
and a resident of Zamboanga City. 3 At the time of his death on July 23,1981, the deceased was
employed as manager of the sand and gravel business of his father. On the other hand, Hassan was
an illiterate, 15-year-old pushcart cargador. 4

The quality of justice and the majesty of the law shine ever brightest when they are applied with
more jealousy to the poor, the marginalized, and the disadvantaged. Usman Hassan, the herein
accused-appellant, belongs to this class. At the time of the alleged commission of the crime, he was
poor, marginalized, and disadvantaged. He was a flotsam in a sea of violence, following the odyssey
of his widowed mother from one poverty-stricken area to another in order to escape the ravages of
internicine war and rebellion in Zamboanga del Sur. In the 15 years of Hassan's existence, he and
his family had to evacuate to other places for fear of their lives, six times. His existence in this world
has not even been officially recorded; his birth has not been registered in the Registry of Births
because the Samal tribe, to which he belongs, does not see the importance of registering births and
deaths.

Usman was convicted on the bases of the testimony of a lone eyewitness for the prosecution and
the sloppiness of the investigation conducted by the police investigator, Police Corporal Rogelio
Carpio of the Homicide and Arson Section of the Zamboanga City Police Station, who also testified
for the prosecution.

We rule that Usman Hassan's guilt was not proved beyond reasonable doubt and that Usman
Hassan must, therefore, be set free.

The lone eyewitness for the prosecution is Jose Samson, 24 years old when he testified, married,
and a resident of Zamboanga City. On the day of the killing, he was employed at the sand and
gravel business of the father of the deceased but was jobless at the time of his examination-in-chief
on February 3, 1982.

He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in the evening of July 23, 1981;
that he was a backrider in the motorcycle of Ramon when they went to buy mangoes at Fruit
Paradise near the Barter Trade Zone in Zamboanga City that while he was selecting mangoes, he
saw a person stab Ramon who was seated at his red Honda motorcycle which was parked about
two or three meters from the fruit stand where he Samson) was selecting mangoes; that he saw the
assailant stab Ramon "only once" and that after the stabbing, the assailant ran towards the PNB
Building. When asked at the cross-examination if he knew the assailant, Samson said, "I know him
by face but I do not know his name." 5

This sole eyewitness recounted the stabbing thus: "While Ramoncito Pichel, Jr. was holding the
motorcycle with both of his hands, the assailant come from behind, held his left hand and stabbed
him from behind on his chest while the victim was sitting on the motorcycle." He claimed that he was
able to see the assailant because it was very bright there that Ramon was facing the light of a
petromax lamp, and that all these happened in front of the fruit stand a — distance of about 6 to 7
meters from the side of the road.

Samson described the assailant as wearing a white, short-sleeved t-shirt and maong pants, but "he
did not see if the aggressor was wearing shoes," that the assailant stabbed Ramon with a knife but
"he did not exactly see what kind of knife it was, and he did not see how long the knife was He said
he brought the wounded Ramon to the Zamboanga City General Hospital in a tricycle.

On cross-examination, Samson testified:

xxx xxx xxx

Q When you rushed Ramon Pichel, Jr. to the hospital you came to
know that he was already dead, is that correct?

A Yes, sir, I learned that he was already dead.

Q In the hospital, were you investigated by the police?

A They just asked the description of that person as to his attire and
his appearance.

Q And it was while in the hospital that you told them the description of
the one who stabbed Ramon Pichel, Jr.?

A Yes, Sir.

Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La Merced?

A Yes, sir,

Q Can you recall what time was that?

A I do not know what time was that.

Q And it was all La Merced Funeraria that the police brought to you the accused?

A...
 Q For Identification?

A Yes, sir.

Q And he was alone when you Identified him?

A Yes he was alone.

Q Aside from working with the Pichel family in their sand and gravel business, do you
have any blood relationship with them?

A Yes. sir. 6

(Emphasis supplied)

xxx xxx xxx

What comes as a surprise is that Samson's statement 7 which was taken only on July 25, 1981, two
days after the stabbing, and sworn to only on July 27, 1981, also two days after it was taken, or four
days after the killing, was never presented or mentioned by the prosecution at all. The information
was practically forced out of Police Corporal Rogelio P. Carpio, a witness for the People, during his
cross-examination. 8 The sworn statement contained the following questions and answers:

xxx xxx xxx

Q-14. What and please narrate it to me briefly in your own words, the
incident you are referring?

A-14. While I was busy selecting some mangoes, I saw unidentified

person whom I can recognize by face if seen again embraced my
companion Ramon Pitcher Jr. while the latter was aboard his
motorcycle parked within the area. That this person without much
ado, and armed with a knife suddenly stabbed him (Ramon). That by
coincidence to this incident, our eye met each other and immediately
thereafter, he fled the area toward the Philippine National Bank
(PNB). That this unidentified person was sporting a semi-long hair,
dressed in White Polo-Shirt (Short sleeve), maong pants height to
more or less 5'5, Dark Complexion. That as this unidentified person
fled the area I immediately came to aid my companion, Ramon
Pitcher, Jr., and rushed him to Zamboanga General Hospital, on
board a Tricycle. That may companion (Ramon) did not whispered
(sic) any words to me for he was in serious condition and few minutes
later, he expired.

Q-15. Was tills unidentified person was with companion when he

attack (sic) Ramon Pitcher Jr.?

A-15. He was alone Sir.

 Q-16. Can you really Identified (sic) this person who attacked and
stabbed your companion, Ramon Pitcher, Jr., that evening in
question?

A-16. Yes, Sir,

Q-17. Do you still remember that confrontation we made at the Office

of La Merced Funeral Homes, wherein you were confronted with one
Usman Hassan, whom this Officer brought along?

A-17. Yes, Sir.

Q-18. Was he the very person, who attacked and stabbed your
companion, Ramon Pitcher, Jr.?

A-18. Yes, Sir, he was the very person who attacked and stabbed my
companion, Ramon Pitcher, Jr., that evening in question.

Q-19. Why?

A-19. Because his face and other physical appearance were fully
noted by me and this I cannot forget for the rest of my life.

Q-20. Before this incident, was there any altercation that had ensued
while in the process of buying some mangoes in that area?

A-20. None Sir.

Q-21. Were you able to note what kind of knife used by said Usman
Hassan in stabbing your companion, Ramon Pitcher Jr.?

A-21: None Sir,

Q-22. Well, I have nothing more to ask of you, do you have anything
more to say, add or alter in this statement?

A-22. No more Sir.

Q-23. Are you willing to give a supplemental statement if needed in

the future?

A-23. Yes, Sir. 9

(Emphasis supplied)

xxx xxx xxx

The version of the sole eyewitness appearing in his statement 10 is substantially the same as that
embodied in the "Case Report," Exhibit it "C", by Police Corporal Carpio, also admitted a s Exhibit
"2." This exhibit for the prosecution confirms the sworn statement of witness Samson that an
unidentified person, whom he recognized only by face, appeared and without any provocation, the
latter embraced the victim and stabbed the same allegedly with a knife." The rest of the Case
Report: is also significant in that it confirms the confrontation between the accused and Jose
Samson in the funeral parlor arranged by the police Investigator and prosecution witness, Corporal
Carpio.

xxx xxx xxx

From this end, a follow-up was made within the premises of the Old Barter Trade,
wherein the person of USMAN HASSAN Y AYUN, of Paso Bolong, this City, was
arrested in connection with the above stated incident. That this Officer and
companions arrested this person Usman due to his physical appearance, which was
fully described by victim's companion. Jose Samson. During his arrest, a knife,
measuring to more or less seven (7) inches in blade was confiscated in his
possession. The person of Usman Hassan was brought along at the La Merced
Funeral Homes for a confrontation with victims companion, Jose Samson and in this
confrontation, Jose Samson positively Identified said Usman Hassan as the very
person who stabbed the victim.

Usman Hassan, on the other hand, denied the charges levelled against hub and
admitted ownership of said knife; claiming among other things that he used said knife
for slicing mangoes. 11

xxx xxx xxx

We hold that the evidence for the prosecution in its entirety does not satisfy the quantum of proof —
beyond reasonable doubt — required by the Constitution, the law, and applicable jurisprudence to
convict an accused person. The said evidence denies us the moral certainty which would allow us to
pronounce, without uneasiness of conscience. Usman Hassan y Ayun guilty of the killing of the
deceased Ramon Pichel, Jr. y Uro, and condemn him to life imprisonment and in effect turning him
into a flotsam again in a sea of convicted felons in which he would be a very young stranger.

In evaluating the worth of the testimony of the lone eyewitness for the prosecution against the denial
and alibi of the accused, value judgment must not be separated from the constitutionally guaranteed
presumption of innocence.

When the evidence for the prosecution and the evidence for the accused are
weighed, the scales must be tipped in favor of the latter. This is because of the
constitutional presumtion of innocence the accused enjoys as a counter-foil to the
awesome authority of the State that is prosecuting him.

The element of doubt, if reasonable in this case, must operate against the inference
of guilt the prosecution would draw from its evidence. That evidence, as it happens,
consists only of the uncorroborated statement of the two policemen which, as
previously observed, is flawed and therefore suspect. 12

The testimony of Jose Samson, the lone eyewitness, is weak and unconvincing. And so with the
evidence sought to be introduced by Police Corporal Carpio. We discover, for example, that the
expert testimony of the medico-legal officer of the National Bureau of Investigation, Dr. Valentin
Bernalez, presented by the prosecution, contradicted, on material points, the testimony of the one
eyewitness, Jose Samson. While Samson averred on the witness stand that he saw the assailant
stab the deceased "from behind on his chest" 13 only once, the NBI medico-legal officer Identified two
stab wounds, one at the front portion of the chest at the level and third rib, (sic) and another stab
wound located at the left arm posterior aspect." 14 The same medical expert also concluded from the
nature and location of the chest wound, which was the cause of death, that the same was inflicted
on the victim while the alleged accused was in front of him." 15

The investigation of this case by the Homicide/Arson Section of the Zamboanga Southern Police
Sector, 16 at Zamboanga City, particularly by Police Corporal Rogelio P. Carpio, leaves much to be
desired. For one, we are not satisfied with the procedure adopted by the police investigators in the
Identification of the accused as the assailant. We have no doubt that Usman Hassan was
"presented" alone 17 to Jose Samson by the police investigator and prosecution witness, Police
Corporal Carpio, and his police companions, at the office of the La Merced Funeral Homes in
Zamboanga City. As correctly termed by the very evidence 18 of the prosecution, the procedure
adopted by the police investigators was a confrontation" between Jose Samson, Jr. and Usman.
Earlier, on direct examination, Corporal Carpio testified that Usman was alone when he was brought
to Samson for confrontation in the funeral parlor. However, on cross-examination, Carpio made a
turnabout by saying that the accused was Identified by Samson in a "police line-up;" this
tergiversation we dare say, was an afterthought, more the result of an over or careless cross-
examination, augmented by the leading questions 19 of the trial judge rather than a fastidiousness if
not sincerity, on the part of the police investigator, to honestly correct erroneous statements in his
examination-in-chief. The fact remains that both Samson and the accused testified clearly and
unequivocably that Usman was alone when presented to Samson by Carpio. There was no such
police line-up as the police investigator, to honestly correct erreoneous statements in his
examination-in-chief. The fact remains that both Samson and the accused testified clearly and
unequivocably that Usman was alone when presented to Samson by Carpio. There was no such
police investigator claimed on second thought.

The manner by which Jose Samson, Jr. was made to confront and Identify the accused alone at the
funeral parlor, without being placed in the police line-up, was "pointedly suggsestive, generated
confidence where there was none, activated visual imagination, and, all told, subserted his reliability
as eyewitness. This unusual, coarse, and highly singular method of Identification, which revolts
against the accepted principles of scientific crime detection, alienates the esteem of every just man,
and commands neither our respect nor acceptance." 20

Moreover, the confrontation arranged by the police investigator between the self-proclaimed
eyewitness and the accused did violence to the right of the latter to counsel in all stages of the
investigation into the commission of a crime especially at its most crucial stage — the Identification
of the accused.

As it turned out, the method of Identification became just a confrontation. At that critical and decisive
moment, the scales of justice tipped unevenly against the young, poor, and disadvantaged accused.
The police procedure adopted in this case in which only the accused was presented to witness
Samson, in the funeral parlor, and in the presence of the grieving relatives of the victim, is as tainted
as an uncounselled confession and thus falls within the same ambit of the constitutionally
entrenched protection. For this infringement alone, the accused-appellant should be acquitted.

Moreover, aside from this slipshod Identification procedure, the rest of the investigation of the crime
and the preparation of the evidence for prosecution were done haphazardly, perfunctorily, and
superficially. Samson was not investigated thoroughly and immediately after the incident. As
previously mentioned, his statement was taken by the investigator only two days after the murder of
Ramon Pichel, Jr. and sworn only two days after it had been taken. Similarly, there is nothing in the
record to show that the fruit vendor—from whom Samson and the deceased were buying mangoes
that fateful evening and who certainly must have witnessed the fatal stabbing—was investigated, or
why he was not investigated. Nor is any explanation given as to why the companion 21 of the accused
at the time Corporal Carpio arrested him (accused) 'sitting on a pushcart " 22 at about 8:00 P.M.
(around 7:00 P.M., according to Usman) of that same evening near the scene of the crime, was not
also investigated when he could have been a material witness of the killing or of the innocence of the
accused. In addition, the knife and its scabbard, 23Confiscated by Carpio from Usman (tucked on the
right side of his waist") at the time of his arrest, were not even subjected to any testing at all to
determine the presence of human blood which could be typed and compared with the blood type of
the deceased. A crime laboratory test — had Carpio or the prosecuting fiscal, or even the trial judge,
insisted on it — would have revealed whether or not the knife in question (confiscated from the
accused by Carpio one hour after the alleged commission of the crime) had indeed been the weapon
used to kill Ramon. The police investigator instead nonchalantly dismissed this sin of omission by
saying that the knife could have been cleaned or the bloodstain could have been taken away. 24 This
presumption of the deadly weapon's having been "cleaned" of bloodstains is tantamount to
pronouncing the accused of being guilty.

Our doubt about the guilt of the accused is further deepened by a resolution, 25 in a separate
case, 26 of Assistant City Fiscal of Zamboanga City and deputized Tanod bayan Prosecutor Pablo
Murillo, which clearly reveals that on July 24, 1981, a day after the killing of Ramon Pichel, Jr., a
similar stabbing took place at Plaza Pershing near the place of the earlier incident, with the suspect
in that frustrated homicide case being a certain Benhar Isa, 'a notorious and a deadly police
character" in Zamboanga City, with a long record of arrests. In that resolution, Fiscal Murillo said the
same Benhar Isa was tagged as 'also a suspect in the stabbing of Ramon Pichel, Jr. to death and
the stabbing of Pastor Henry Villagracia at the Fruit Paradise, this City." The said resolution further
states that "with regards to this incident or witnesses ever testified for fear of possible reprisals." 27

The trial of Usman Hassan began on October 27, 1981. Benhar Isa himself was killed by a
policeman on August 28, 1981, while he (Isa) "was apparently under the influence of liquor armed
with a knife (was) molesting and extorting money from innocent civilians' and "making trouble." 28 The
records of the case at bar do not show any attempt on the part of Corporal Carpio, or any other
police officer, to investigate or question Benhar Isa in connection with the killing of Pichel, Jr. Was it
fear of the notorious police character that made the police officers disregard the possible connection
between the slaying of Ramon and that of the person (Harun Acan y Arang of the Ministry of
National Defense) 29 who was allegedly stabbed by Benhar Isa a day after the killing of Ramon Jr.?
And yet questioning Isa might have provided that vital link to the resolution of Usman's guilt or
innocence. But why should the police officers investigate Isa when Usman Hassan was already in
custody and could be an available fall guy? Usman Hassan, instead, became a victim of a grave
injustice. Indeed, Usman Hassan is too poor to wage a legal fight to prove his innocence. And he is
so marginalized as to claim and deserve an honest-to-goodness, thorough, and fair police
investigation with all angles and leads pursued to their logical, if not scientific, conclusions. Sadly
circumstanced as he is, the authority of the State was too awesome for him to counteract.

The appealed decision made much ado of the admission by Usman "that he was arrested at the
former barter trade, which is a place just across the place of the stabbing at the Fruit
Paradise." 30 The trial judge found it "therefore strange that on the very evening of the stabbing
incident he was still at the barter trade area by 8:00 o'clock in the evening when he usually comes to
the city proper at about 6:00 o'clock in the morning and goes home at past 5:00 o'clock and
sometimes 6:00 o'clock in the afternoon." 31 Usman's explanation — that, at around 7:00 o'clock
P.M., he was waiting for transportation to take him home — was found by the trial court as 'flimsy
and weak since he did not explain why he had to go home late that evening." 32 But the whole trouble
is nobody asked him. The trial judge did not propound any single question to the accused, and only
three to his mother on innocuous matters, by way of clarification, if only to put on record what the
mother and son could articulate with clarity. Taking into account their poverty and illiteracy, the
mother and son needed as much, if not more, help, than the trial judge extended to the prosecution
witnesses during their examination by asking them clarificatory and mostly leading questions. In that
sense and to that extent, the accused was disadvantaged.

A fact that looms large, though mutely to testify on the innocence of the accused but the importance
of which was brushed away by the trial judge was the presence of the accused near the scene
(about 100 to 150 meters away) soon after the stabbing (he testified at around 7:00 P.M. although
Police Corporal Carpio stated it was 8:00 P.M.) where he was found sitting on his pushcart with a
companion. If he were the assailant, he would have fled. But the trial court instead indulged in
conjecture, foisting the probability that the accused 'was lulled by a false sense of security in
returning to the place (of the stabbing), when no police officers immediately responded and
appeared at the scene of the crime," adding 'there are numerous cases in the past where criminals
return to the scene of their crimes, for reasons only psychologist can explain." 33 It must have
escaped the trial court's attention that Usman has no criminal record, and, therefore, he could not be
generally classed with criminals. In the second place, the trial court's rationalization ignores the
biblical truism recognized by human nature and endorsed with approval by this Court that "(T)he
wicked flee when no man pursueth but the righteous are as bold as a lion." 34

And now as a penultimate observation, we could not help but note the total absence of motive
ascribed to Usman for stabbing Ramon, a complete stranger to him. While, as a general rule, motive
is not essential in order to arrive at a conviction, because, after all, motive is a state of
mind, 35 procedurally, however, for purposes of complying with the requirement that a judgment of
guilty must stem from proof beyond reasonable doubt, the lack of motive on the part of the accused
plays a pivotal role towards his acquittal. This is especially true where there is doubt as to the
Identity of the culprit 36 as when 'the Identification is extremely tenuous," 37 as in this case.

We can not end this travail without adverting to the cavalier manner in which the trial court
disregarded the claimed young age of Usman Hassan.

The defense claims that the accused Usman Hassan is a minor, basing such claim
on the testimony of Lahunay Hassan, the mother of said accused, who declared that
her son Usman Hassan, who is one of her four (4) children, was born in the year
1967. She testified that she was just told by a person coming from their place about
the year of the birth of her son Usman. However on cross-examination, Lahunay
Hassan cannot even remember the date or year of birth of her other children. The
failure of Lahunay Hassan to remember the date or year of birth of her children is of
course understandable, considering that she is unschooled and she belongs to a
tribe that does not register births, deaths or marriages, however, it is strange that she
only took pains to find out the year of birth of her son Usman. For this reason, the
Court granted a motion of the defense on September 13, 1982, to have the herein
accused examined by a competent dentist to determine his age. However, the
findings of the dentist of Zamboanga General Hospital which is marked as Exhibit "5"
shows the following: "age cannot be determined accurately under present mouth
conditions. Approximately, he can be from 14 to 21 years of age." This simply means
that the herein accused could either be 14 years of age or 21 years of age, or any
age in between those aforestated years. From the observation of this court, the
accused Usman Hassan was about 18 years of age at the time he committed this
crime and this observation is based on his personal appearance, his size and facial
features and other personal characteristics, hence he can not be classified as a
youthful offender under Article. 189 of Presendential Decree No. 603, as ammended
by Presedential Decree No. 1179. In the case of U.S. vs. Mallari, 29 Phil. 13 and
People vs. Reyes and Panganiban, CA 48 O.G. 1022, cited in the Edition, Page 680,
it was ruled by the Supreme Court that "In cases where the age of the culprit is at
 issue as a basis for claiming an exempting mitigating circumstance, it is incumbent
upon the accused to establish that circumstance ad any other elements of defense. 38

Considering that the age of the accused could exempt him from punishment or cause the
suspension of his sentence under Articles 12 and 80, respectively of the Revised Penal Code, if
found guilty, more meticulousness and care should have been demanded of medical or scientific
sources, and less reliance on the observation of the judge as had happened in this case. The
preliminary findings of the dentist that the accused could be anywhere between fourteen to twenty
one years, despite the difficulty of arriving at an accurate determination due to Hassan's mouth
condition, would have placed the trial judge on notice that there is the probability that the accused
might be exempted from criminal liability due to his young age. All the foregoing indicates that the
accused had not been granted the concern and compassion with which the poor, marginalized, and
disadvantaged so critically deserve. It is when judicial and police processes and procedures are
thoughtlessly and haphazardly observed that cries of the law and justice being denied the poor are
heard. In any event, all this would not be of any moment now, considering the acquittal of the
accused herein ordered.

WHEREFORE, the decision is hereby REVERSED, and the accused Usman Hassan y Ayun is
ACQUITTED of the crime charged. His release from confinement is hereby Ordered, unless he is
held for another legal cause. With costs de oficio.

SO ORDERED.

Yap (Chairman), Paras and Padilla, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

That the testimony of the lone eyewitness is weak and unconvincing.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

That the testimony of the lone eyewitness is weak and unconvincing.

Footnotes

1 Rendered by the Honorable Carlito A. Eisma, Regional Trial Judge.

2 Decision, 12; Rollo, 35.

3 Exhibit "A", Death Certificate.

4 T.S.N., 2, July 28,1982.

5 T.S.N., 5 February 3, 1982.

6 T.S.N.,., 11 February 10, 1982.

7 Exhibit "I", Original Records, 4-5.

8 T.S.N., S. April 28, 1982.

9 Exhibit "1", Id.

10 Id.

11 Exhibit "C", (also Exhibit "2').

12 (Sec. 19, Art. IV, 1973 Constitution, Identical with Sec. 14(2), Art. III, 1987
Constitution; People vs. Pecardal, No. L-71381, November 24,1986,145 SCRA 652-
653; People v. Opida, No. L-46272, June 13, 1986, 142 SCRA 295; Liwanag Aguirre
v. People, G.R. No. 56013, October 30, 1987.

13 T.S.N., 5-6, February 3, 1982.

14 T.S.N., 7, October 27, 1981, Exhibit "B."

15 Id., 10.

16 Exhibits "C" and "D".

17 T.s.n. 11 February 10, 1982. T.s.n., 4 April 28, 1982, Exh. "1", Original
Records, Id.

18 Exh. "C", T.s.n., April 28,1982, Id.

19 T.S.N. 10-11, Id.

20 People v. Cruz. No. L-24424, March 30, 1970, 32 SCRA 181, 186; People vs.
Olvis, et al., No. L-71092, September 30, 1987; Chavez Court of Appeals. No. L-
29169, 24 SCRA 663, 679.

21 T.S.N., 4, April 28,1982.

22 Id.

23 Exhibits "E" and "E-1", respectively.

 24 T.S.N., 9, April 28, 1982.

25 Exhibit "4".

26 People of the Philippines, Complainant, versus Pat. Hamid Akbar, Respondent,

Slip No. 734-81 for HOMICIDE."

27 Id.

28 Id.

29 Id.

30 Decision, 10, Original Records, 113.

31 Id.

32 Id.

33 Decision, 8 Original Records 111.

34 People of the Philippines vs. Rolly Anquillano alias Dagol, G.R. No. 72318, 4.

35 People vs. Jacinto, L-51908, November 29, 1984, 133 SCRA 498.

36 People vs. Verzo, L-22517, December 26, 1967, 21 SCRA 1403; People vs.
Pajenado, L-26458, January 30, 1976, 69 SCRA 172; People vs. Dueno L-31102,
May 5, 1979, 90 SCRA 23; People vs. Manalo, L-45088, February 28, 1985, 135
SCRA 84.

37 People vs. Pervelo, L-50631, June 29, 1981, 105 SCRA 236, 238.

38 Decision, 9, Original Records, 112.

epublic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-66884 May 28, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VICENTE TEMBLOR alias "RONALD," defendant-appellant.

The Solicitor General for plaintiff-appellee.

Wilfred D. Asis for defendant-appellant.

GRIÑO-AQUINO, J.:

The accused-appellant Vicente Temblor alias "Ronald" was charged with the crime of murder in Criminal Case No. 1809 of the Court of First
Instance (now Regional Trial Court) of Agusan del Norte and Butuan City for shooting to death Julius Cagampang. The information alleged:

That on or about the evening of December 30, 1980 at Talo-ao, Buenavista, Agusan
del Norte, Philippines and within the jurisdiction of this Honorable Court, the said
accused conspiring, and confederating with one another with Anecito Ellevera who is
at large, did then and there wilfully, unlawfully and feloniously, with treachery and
with intent to kill, attack, assault and shoot with firearms one Julius Cagampang,
hitting the latter on the vital parts of the body thereby inflicting mortal wounds,
causing the direct and instantaneous death of the said Julius Cagampang.

CONTRARY TO LAW: Article 248 of the Revised Penal Code.

Upon arraignment on June 8, 1982, he entered a plea of not guilty. After trial, he was convicted and
sentenced to suffer the penalty of reclusion perpetua, with the accessory penalties thereof under
Articles 41 and 42 of the Revised Penal Code, and to indemnify the heirs of the victim in the amount
of P12,000 without subsidiary imprisonment in case of insolvency. He appealed.

The evidence of the prosecution showed that at about 7:30 in the evening of December 30, 1980,
while Cagampang, his wife and their two children, were conversing in the store adjacent to their
house in Barangay Talo-ao, Buenavista, Province of Agusan del Norte, the accused Vicente
Temblor alias Ronald, arrived and asked to buy a half-pack of Hope cigarettes. While Cagampang
was opening a pack of cigarettes, there was a sudden burst of gunfire and Cagampang instantly fell
on the floor, wounded and bleeding on the head. His wife Victorina, upon seeing that her husband
had been shot, shouted her husband's name "Jul" Two persons, one of whom she later Identified as
the accused, barged into the interior of the store through the main door and demanded that she
brings out her husband's firearm. "Igawas mo ang iyang armas!" ("You let out his firearm!") they
shouted. The accused fired two more shots at the fallen victim. Terrified, Victorina hurried to get the
"maleta" (suitcase) where her husband's firearm was hidden. She gave the suitcase to the accused
who, after inspecting its contents, took her husband's .38 caliber revolver, and fled.

In 1981, some months after the incident, Victorina was summoned to the Buenavista police station
by the Station Commander Milan, where she saw and Identified the accused as the man who killed
her husband.

The accused's defense was an alibi. He alleged that from 4:00 o'clock in the afternoon of December
30, 1980, he and his father had been in the house of Silverio Perol in Barangay Camagong, Nasipit,
Agusan del Norte, where they spent the night drinking over a slaughtered dog as "pulutan," until 8:00
o'clock in the morning of the following day, December 31, 1980.

The accused and his companion, admittedly members of the dreaded NPA (New People's Army)
were not apprehended earlier because they hid in the mountains of Malapong with other members-
followers of the New People's Army. Temblor surrendered to Mayor Dick Carmona of Nasipit during
the mass surrender of dissidents in August, 1981. He was arrested by the Buenavista Police at the
Buenavista public market on November 26, 1981 and detained at the Buenavista municipal jail.

The accused capitalized the fact that the victim's widow, Victorina, did not know him by name. That
circumstance allegedly renders the Identification of the accused, as the perpetrator of her husband's
killing, insufficient. However, during the trial, the accused was positively identified by the widow who
recognized him because she was less than a meter away from him inside the store which was well
lighted inside by a 40-watt flourescent lamp and by an incandescent lamp outside. Her testimony
was corroborated by another prosecution witness — a tricycle driver, Claudio Sabanal — who was a
long-time acquaintance of the accused and who knew him as "Ronald." He saw the accused in the
store of Cagampang at about 7:30 o'clock in the evening of December 30, 1980. He heard the
gunshots coming from inside the store, and saw the people scampering away.

Dr. Alfredo Salonga who issued the post-mortem examination report certified that the victim
sustained three (3) gunshot wounds.

Rebutting the accused's alibi, the prosecution presented a Certification of the Nasipit Lumber
Company's Personnel Officer, Jose F. Tinga (Exh. D), and the NALCO Daily Time Record of Silverio
Perol (Exh. D), showing that Perol was not at home drinking with the accused and his father, but was
at work on December 30, 1980 from 10:50 o'clock in the evening up to 7:00 o'clock in the morning of
December 31, 1980. The accused did not bother to overcome this piece of rebuttal evidence.

In this appeal, the appellant alleges that the court a quo erred:

1. in finding that he was positively identified by the prosecution witness as the killer of
the deceased Julius Cagampang; and

2. in rejecting his defense of allbi.

The appeal deserves no merit. Was the accused positively Identified as the killer of Cagampang?
The settled rule is that the trial court's assessment of the credibility of witnesses while testifying is
generally binding on the appellate court because of its superior advantage in observing their conduct
and demeanor and its findings, when supported by convincingly credible evidence as in the case at
bar, shall not be disturbed on appeal (People vs. Dava, 149 SCRA, 582). <äre||anº• 1àw>

The minor inconsistencies in the testimony of the eyewitness Victorina Vda. de Cagampang did not
diminish her credibility, especially because she had positively Identified the accused as her
husband's assailant, and her testimony is corroborated by the other witnesses. Her testimony is
credible, probable and entirely in accord with human experience.

Appellant's self-serving and uncorroborated alibi cannot prevail over the positive Identification made
by the prosecution witnesses who had no base motives to falsely accuse him of the crime.
Furthermore, the rule is that in order for an alibi to be acceptable as a defense, it is not enough that
the appellant was somewhere else when the crime was committed; it must be demonstrated beyond
doubt that it was physically impossible for him to be at the scene of the crime. Here it was admitted
that Perol's house in barrio Camagong, Nasipit is accessible to barrio Talo-ao in Buenavista by jeep
or tricycle via a well-paved road in a matter of 15 to 20 minutes. The testimony of the witnesses who
had positively Identified him could not be overcome by the defendant's alibi. (People vs. Mercado, 97
SCRA 232; People vs. Venancio Ramilo, 146 SCRA 258.)

Appellant's alleged lack of motive for killing Cagampang was rejected by the trial court which opined
that the defendant's knowledge that Cagampang possessed a firearm was motive enough to kill him
as killings perpetrated by members of the New People's Army for the sole purpose of acquiring more
arms and ammunition for their group are prevalent not only in Agusan del Norte but elsewhere in the
country. It is known as the NPA's "agaw armas" campaign. Moreover, proof of motive is not essential
when the culprit has been positively Identified (People vs. Tan, Jr., 145 SCRA 615).
The records further show that the accused and his companion fled after killing Cagampang and
taking his firearm. They hid in the mountains of Agusan del Norte. Their flight was an implied
admission of guilt (People vs. Dante Astor, 149 SCRA 325; People vs. Realon, 99 SCRA 422).

WHEREFORE, the judgment appealed from is affirmed in all respects, except as to the civil
indemnity payable to the heirs of the Julius Cagampang which is increased to P30,000.00.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.