G.R. No. 126123 March 9, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENATO PLATILLA, accused-appellant. KAPUNAN, J.

: In an information filed on October 14, 1988, Joaquin Platilla and Renato Platilla were charged before the Regional Trial Court of Palo Leyte, in Criminal Case No. 8734, with the crime of murder allegedly committed as follows: That on or about the 9th day of September, 1988, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping each other, with intent to kill and with evident premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault, stab and wound one CESARIO LABITA with the use of bolos which the accused had provided themselves for the purpose, thereby inflicting upon him several wounds on the different parts of his body which caused his instantaneous death. 1 Joaquin Platilla was arrested on the same day the stabbing incident took place. He admitted his culpability and pleaded guilty to the lesser offense of Homicide. 2 He was sentenced by the trial court to a penalty of (twelve) 12 years and (one) 1 day to (fourteen) 14 years and (eight) 8 months of reclusion temporal, and was asked to indemnify the heirs of Cesario Labita the amount of P30,000.00 without subsidiary imprisonment in case of insolvency. 3 Accused-appellant Renato Platilla, on the other hand, was apprehended only on 2 March 1994, almost six years after the incident took place. 4 Upon arraignment, he pleaded Not Guilty and waived pre-trial. 5 Thereafter, trial ensued. The prosecution 6 presented evidence establishing the following: In the afternoon of 9 September 1988, Eduardo Andalahao employed the services of Cesario Labita to transport by means of his pedicab the rice bran which the former intended to purchase in Cocomart, Marasbaras, Tacloban City. On their way back to Barangay San Jose after buying the rice bran, Labita and Andalahao, together with another passenger, took the route via the Coca-Cola plant. While Labita was driving, accused-appellant suddenly appeared, carrying a long bolo, and pursued the former from a distance of ten (10) meters. 7 Labita pedalled faster but the weight of the pedicab's load prevented him from securing a safe distance from accused-appellant. At the beginning of the chase, accused-appellant failed to catch up with Labita who jumped out of the pedicab and ran. Fearing that the pedicab, now without a driver, would absolutely go out of control, Andalahao grabbed hold of its handlebar and tried to keep it on course. Meanwhile, Labita continued to run towards the direction of Burayan, San Jose. He already gained some distance from accused-appellant when he was blocked on his path by accused-appellant's brother, Joaquin, who was standing by his parked pedicab. 8 Armed with a long bolo, locally known as "sundang," Joaquin stabbed Labita, deeply piercing his chest. 9 Before Joaquin could pull out the bolo from Labita's body, accused-appellant arrived, and stabbed Labita on the side of his body with his long bolo. 10 With the two bolos still punctured in his body, Labita fell into a ditch together with his two (2) assailants. There, appellant and Joaquin removed their bolos from the body of Labita. Afterwards, they took turns in wounding Labita. 11

Andalahao witnessed all these from just across the street where Labita's pedicab, after continuously moving under Andalahao's control, grinded to a halt. While all these were happening a policeman riding a motorcycle passed by. Andalahao called his attention and informed him about the incident and the participation of accusedappellant and Joaquin in the stabbing of Labita. 12 Joaquin surrendered himself and the two (2) bolos to the policeman claiming sole authorship and responsibility for the incident. For this reason the policeman brought only Joaquin to the police station for further investigation. Accused-appellant, on the other hand, left the scene of the crime and brought with him his brother's pedicab. Andalahao went to the San Jose police station and reported the occurrence. Labita was left behind lying in the ditch. In the meantime, an unknown caller informed the Tacloban City Police Station about the stabbing incident. In response, SP03 Nestor Manocsoc with some companions went to the scene of the crime in Burayan and found Labita lying by the roadside. They brought Labita to the Tacloban City Hospital where he was pronounced dead on arrival. Prosecution witness Encarnacion Labita testified that she was the mother of the victim. She disclosed that her son was married and had three children. She related that the wife of Labita went to Manila to work. She said that she spent a total of P4,800.00 for the burial of her son. On the other hand, the defense interposed a different version of the incident. Accused-appellant testified that at around 3:00 p.m. of 9 September 1988, he was at their place in Dulag, harvesting the palay at the ricefield of one Wilfredo Dasugbo. 13 He alleged that he worked that day from 7:00 a.m. to 12:00 noon and from 2:00 p.m. to 5:00 p.m. He further stressed that he did not go to San Jose, Tacloban City, on 9 September 1988. Accused-appellant contended that he was implicated in this case because he was the cause of an incident which involved his brother Joaquin. According to him, both he and Labita were pedicab drivers. Sometime in August, 1988, he drove two passengers to the airport. When these passengers alighted, they left their bag in his pedicab. Labita, who was behind accused-appellant on the way to the airport, saw this. Labita allegedly approached accused-appellant and asked the latter to give him the bag because he knew the passengers. Accused-appellant gave the bag to Labita without question. Afterwards, Labita returned the bag to accused-appellant who did not know that certain things from the bag were already missing. According to accused-appellant, these were a pair of pants and a jacket. The owner of the bag, one of the passengers, came to see him for the missing bag. He gave back the bag with the missing articles. When the owner found out that there were items missing in his bag he became angry with accused-appellant. However, despite this, he did not inform the owner of the cause of the lost. Accused-appellant told his brother Joaquin about this incident. His brother got angry upon learning about it and advised him to go to Dulag. Accused-appellant testified that after Labita returned the bag to him he never saw him again. Accused-appellant declared that he came to know that Joaquin stabbed Labita to death when he visited him in jail, four (4) days after the occurrence. 14 He further averred that he never left Dulag after he was advised by Joaquin to go home. He was apprehended only on 2 March 1994, at Manlurip, San Jose. 15 Accused-appellant testified that Joaquin never told him that he was included in the charge even while the latter was at the Abuyog Penal Colony or even after he was paroled. On 20 November 1995, the trial court 16 rendered judgment convicting the appellant of the crime charged. The dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered finding accused RENATO PLATILLA guilty beyond reasonable doubt of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code and there being no mitigating or aggravating circumstance to offset the same, the Court hereby sentences said accused to suffer the penalty of Reclusion Perpetua and to reimburse the heirs of said victim the consequential damages suffered by them as a result of the death of Cesario Labita. Furthermore, the accused is hereby ordered to pay the heirs of the victim the amount of P50,000.00 by way of moral damages and to pay the costs. 17 Accused-appellant thereafter interposed the present appeal to this Court, assigning this lone error: THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. 18 In support of the above contention, accused-appellant argues that from the reading of the testimony of Eduardo Andalahao it is doubtful if he really saw the stabbing of Labita. He also puts up the defense of alibi and denies having participated in the commission of the crime. He maintains that his delayed arrest and the lack of interest of the police to apprehend him weakened the prosecution's theory regarding his involvement in the killing of Labita. Finally, he asserts that he should be made liable only for homicide and not for the higher offense of murder since the prosecution failed to establish the presence of evident premeditation in the commission of the crime. The Office of the Solicitor General, on the other hand, contends that the prosecution has clearly established the guilt of accused-appellant beyond reasonable doubt. Moreover, the unwavering and unqualified testimony of prosecution witness Eduardo Andalahao clearly established appellant's culpability. We affirm the conviction of the accused but only for the crime of Homicide. Appellant assails the credibility of prosecution witness Eduardo Andalahao. He disputes that Andalahao could not have been a real eyewitness to the killing of Labita because while the physical evidence shows that the victim suffered from so many wounds (16 stabs), Andalahao merely mentioned that Labita was stabbed only twice, once each by appellant and Joaquin. The testimony of Andalahao belies this averment, Andalahao, the lone eyewitness for the prosecution, testified in clear and unequivocal terms that he saw both appellant and his brother Joaquin help each other in wounding Labita, to wit: Q: You said you used the road passing Cocacola plant, on your way, was there an unusual incident that happened? A: Yes, on our way home. Q: What was this unusual incident? A: Renato Platilla ran after us carrying a long bolo locally known as Sundang. Q: How do you know that you were being chased by Renato Platilla who was carrying a long bolo? A: Because we were the only ones who passed. Q: How far were you when you first saw Renato Platilla carrying a long bolo and chasing you?

A: About 10 meters more or less away. Court: Was Renato Platilla able to catch up with you? A: No, your Honor, because Cesario Labita jumped from the pedicab. xxx xxx xxx Q: When Cesario Labita jumped from the pedicab, how far was Renato Platilla who was chasing him? A: He was further away already. He could have been very far if Renato's older brother did not block the way. xxx xxx xxx Q: Will you tell the Court why Joaquin Platilla blocked the way of Cesario Labita? A: Cesario was running towards another pedicab which was parked and Joaquin was the driver of said pedicab. When Cesario passed the place where Joaquin was, he was the first one to stab Cesing. Q: With (sic) what kind of weapon was used in stabbing Cesario Labita by Joaquin? A: Sundang, the same weapon, a long bolo or Sundang. xxx xxx xxx Q: That time when Cesario Labita was stabbed by Joaquin Platilla, how far was Renato Platilla? A: He was running towards them. Q: How far was he during the stabbing of Cesario Labita? A: Before the long bolo embedded into the body of Cesario was taken out, Renato also stabbed Cesario. Q: With (sic) what kind of weapon was used by Renato in stabbing Cesario? A: Sundang, a long bolo, the same long bolo as the other one. Q: What part of the body of Cesario was hit when Renato hit Cesario? A: On the side through and through. Q: Why do you say through and through, did you see the tip of the bolo?

A: Yes, Sir. Before the same long bolo was taken out from the body of the victim, the three of them fell to the ditch. Q: When the three of them fell to the ditch, do you know what happened? A: The two helped each other in wounding the victim. 19 It is evident from the foregoing declarations of Andalahao that accused-appellant and Joaquin dealt much more than two (2) stab blows on the victim, and, this is consistent with the findings on Labita's death certificate 20 and the medico-legal necropsy report. 21 The medico-legal necropsy report submitted by Major Angel A. Cordero, Chief Medico-Legal Officer of Camp Sec. Ruperto Kangleon, PC Hills, Palo, Leyte, indicated that the contusions, lacerations and stabbed wounds found on the body of the deceased corresponded with Andalahao's narration of how the accused had acted together in attacking the victim; viz: 1. Incised wound, mid forehead, vertical in appearance measuring 8 cms in length, 1cm in width, with exposure of the skull. 2. Incised wound, right cheek, measuring 5 x 4 x 2 cms AML. 3. Abrasion, left mandibular region, 10 cms in length. 4. Punctured wound, upper third of the left arm, measuring 1x 1 cms, muscle deep. 5. Abrasion, left side of the anterior chest measuring 9 cms in length. 6. Abrasion, at the lower portion of the left heart measuring 2 cms in length. 7. Stab wound, lower portion of the left chest, anterior, at the level of the 7th ICS, measuring 2 x 1 x 4 AML, 10 cms in depth, puncturing the lower lobe of the left lung. 8. Stab wound, through from the left lateral side of the neck to the left part of the base of the skull, measuring 2 x 1 x 3 cms PML. 9. Stab wound, at the lateral chest, at the left 7th ICS, of the left chest, measuring 4 x 2 x 14 cms AML, 11 cms in depth, directed laterally and superiorly puncturing the left lung and the pericardial sac. 10. Stab wound, right thigh, measuring 7 x 2 cms, through from the anterior to the posterior part of the right thigh at its middle third. 11. Lacerated wound, left patellar bone measuring 4 cms exposing the left patella. 12. Stab wound, right infrascapular region, measuring 2 x 2 x 4 PML, 10 cms in depth, directed inwards and anteriorly puncturing the upper lobe of the right lung. 13. Stab wound, basal posterior of the skull, left part measuring 2 x 2 x 2 cms PML, exposing the skull. 14. Stab wound, left portion of the chest, left anterior measuring 2 x 2 x 4 cms AML, directed lateralwards puncturing the left lung lower lobe.

15. Lacerated wound, small finger, middle finger, left hand. 16. There were around 1,000 c.c. of blood and blood clots at the thoracic cavity. Shock and hemorrhage due to multiple stab wounds of the chest, anterior portion puncturing the heart and lungs. 22 As borne by the records, Andalahao was able to fully witness the commission of the crime from start to finish. From his vantage point, he could clearly see what was going on: Q: How far were you when this stabbing incident occurred? Can you point the place here from where you are standing? Interpreter. From the witness stand to the opposite door of the window inside the court room measuring 7 to 8 meters away. Q: Why that far only? A: When the pedicab stopped, they were just across. Q: You mean the pedicab you were riding continued to drive because you were holding the driver's handle? A: Yes, Sir. 23 Since he was just across the street where the crime was committed he was able to identify Labita's assailants. He further testified that he knew accused-appellant and his brother even before the stabbing incident took place, thus: Q: Do you know the name of that older brother? A: Joaquin. Q: You seem to know Renato Platilla and Joaquin Platilla, will you tell the court why? A: This Renato Platilla usually visit (sic) our barangay. Q: That was before this incident happened? A: Yes, Sir. 24 The stenographic transcript shows that Andalahao did not waiver on the stand regarding what he saw on that fateful day. His testimony was replete with all the details establishing how the offense was perpetrated. Based on the foregoing, the trial court correctly gave weight and credence to the testimony of prosecution witness Andalahao. Moreover, settled in this jurisdiction is the doctrine that the Court accords great respect to the factual findings of the trial court, which is in a better position than an appellate court to properly evaluate testimonial evidence,

such as observing directly the witnesses' deportment and manner of testifying, absent any palpable error or arbitrariness in their findings. 25 After carefully examining the records of the case, we the find no reason to depart from this principle. Likewise, the Court has already determined that the testimony of a single eyewitness is sufficient to support a conviction, so long as it is clear, straightforward and worthy of credence by the trial court, 26 as in this case. Witnesses are to be weighed, not numbered. 27 Nowhere is it required that the testimony of a witness be corroborated for it to be credible. 28 At any rate, it does not change the fact that Andalahao witnessed a crime that day and that he saw accusedappellant Renato as one of those who committed it. This witness saw the incident from a distance of about 7 to 8 meters. 29 He knew accused-appellant very well, and he recognized him easily on the day in question. 30 Finally, it was not shown that witness Andalahao had any motive to testify falsely against accused-appellant. Absent any evidence showing any reason or motive for prosecution witness to perjure, the logical conclusion is that no such improper motive exists, and his testimony is thus worthy of full faith and credit. 31 Against the detailed and impartial testimony of the witness for the prosecution accused-appellant interposed the defense of alibi. According to him, at the time of the commission of the offense on 9 September 1988, he was working in the farm of a certain Wilfredo Dasugbo. However, he did not present Wilfredo Dasugbo or any other witness to confirm his testimony. Thus, his alibi stood uncorroborated. For this reason, we brush aside his defense. Alibi is always considered with suspicion and received with caution, not only because it is inherently weak and unreliable, but also because it is easily fabricated and concocted. 32 Alibi is a weak defense and it should be rejected when the identity of the accused was sufficiently and positively established by an eyewitness to the offense. 33 Andalahao's testimony gave a complete account of the killing of Labita, and positively identified accused-appellant as one of the perpetrators of the crime. This testimony definitely cannot be overcome by a self-serving declaration of accused-appellant which was not even corroborated by any other evidence. As consistently enunciated by this Court, the established doctrine is that, for the defense of alibi to prosper, the accused must prove, not only that he was at some other place at the time of the commission of the crime, but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity. 34 While accused-appellant testified that he was in Dulag, Leyte at the time of the commission of the offense, his testimony is bereft of any explanation that it was physically impossible for him to be present at the scene of the crime. Therefore, his alibi cannot prosper against the positive identification of Andalahao that he was one of the perpetrators of the crime. In order to exculpate himself, accused-appellant also claims that he was implicated in the killing of Labita because he had an altercation with the deceased regarding a bag which was left by one of his passengers in his pedicab. The trial court refused to believe the allegation of accused-appellant on this matter. According to the trial court, accused-appellant's reasoning that he gave the bag to Labita because of the latter's representation that he knew the owner of the bag was not convincing, considering that Labita did not even mention the name of the owner to accused-appellant. The trial court held that there was no cogent or compelling reason for accusedappellant to surrender the bag to Labita. We sustain the ruling of the trial court. The actuation of accusedappellant in giving the bag to Labita without question is not in accord with human nature. No person in his right mind would give someone else's belongings to another person upon the latter's request without inquiring why he was asking for it. The only logical conclusion is that accused-appellant's testimony is false and should not be given faith and credit. Accused-appellant makes much of the argument that lack of interest of the police in pursuing him weakened the theory of the prosecution. This contention is untenable. As correctly pointed out by the Solicitor-General, the apparent inefficiency of the authorities does not make accused-appellant innocent or less guilty; neither does it

demolish the case of the prosecution. 35 The lack of interest on the part of the police in pursuing accusedappellant has no connection whatsoever on his guilt or innocence. It has no bearing on the case at all. The positive identification of accused-appellant as one of the culprits by the witness for the prosecution is all that matters. Whatever incompetence may be ascribed to the police does not alter this fact. For his final argument, accused-appellant asserts that if found guilty, he should only be made liable for the crime of homicide and not for the higher offense of murder. He claims that the prosecution failed to prove the existence of the qualifying circumstance of evident premeditation. On this score, we agree with accusedappellant. The presence of evident premeditation in the commission of the crime was not established by the prosecution. Thus, it was an error on the part of the trialcourt to consider this qualifying circumstance in raising the killing to murder. The trial court merely relied on the contention of the prosecution that evident premeditation attended the killing without explaining the basis for such a conclusion. This cannot be allowed. In order to establish evident premeditation the prosecution must show the following requisites, viz: (a) the time when the accused determined to commit the crime, (b) an act manifestly indicating that the accused has clung to his determination, and (c) a lapse of time, between the determination to commit the crime and the execution thereof, sufficient to allow him to reflect upon the consequences of his act. 36 In the case at bar, there is no evidence as to when and how accused-appellant planned and prepared for the killing of his victim. There is no act indicating that accused-appellant persisted in his plan. Nor is there any evidence of the lapse of time between the determination and execution of the same. Evident premeditation cannot be appreciated to qualify the killing to murder in the absence of direct evidence showing the planning and preparations in killing the victim, 37 as in the case at bar. Thus, accused-appellant should only be convicted for homicide under Article 249 38 of the Revised Penal Code. What was actually established by the evidence of the prosecution was the aggravating circumstance of abuse of superior strength. As regards this aggravating circumstance, what should be considered is not that there were three, four or more assailants as against one victim, but whether the aggressors took advantage of their combined strength in order to consummate the offense. 39 It is, therefore, necessary to show that the attackers cooperated in such a way as to secure advantage of their superiority in strength. In the case at bar, not only was there a greater number of assailants with deadly weapons, but the aggressors obviously took advantage of their combined strength when they took turns in stabbing the victim who was unarmed. The number of stab wounds sustained by Labita confirm this. But that as it may, abuse of superior strength cannot qualify the killing to murder. While the information charged the accused with murder, it contained no allegation of abuse of superior strength. A qualifying aggravating circumstance, being an integral part of the offense, must be alleged in the information; otherwise, it is a generic aggravating circumstance only. 40 Accordingly, since abuse of superior strength was not alleged in the information, it must be treated only as a generic aggravating circumstance. The penalty for Homicide in the Revised Penal Code is reclusion temporal. There being one aggravating circumstance and no mitigating circumstance, the maximum imposable penalty should be reclusion temporal maximum. Applying the Indeterminate Sentence Law, the minimum imposable penalty is any period within the penalty next lower, which is prision mayor. WHEREFORE, premises considered, the appealed Decision is MODIFIED. Appellant is hereby found GUILTY beyond reasonable doubt of homicide. He is SENTENCED to serve ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum. The civil indemnity of P50,000.00 is AFFIRMED. SO ORDERED. Davide, Jr., C.J., Melo and Pardo, JJ., concur.

G.R. No. 118331 May 3, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODRIGO AGSUNOD, JR. y BIBAY, accused-appellant. QUISUMBING, J.: This is an appeal from the decision 1 dated September 28, 1994 of the Regional Trial Court of Tuguegarao, Cagayan, Branch 5, in Criminal Case No. 6180 convicting accused-appellant Rodrigo Agsunod, Jr. y Bibay of the crime of Murder attended by the qualifying circumstance of abuse of superior strength, and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties provided under Article 41 of the Revised Penal Code, to pay the heirs of the victim P50,000.00 as indemnity and to pay the costs. Appellant Rodrigo B. Agsunod, Jr. is a farmer, married a father of five children, and resident of Nabbotuan, Solana, Cagayan. At the time of the incident, the victim Rodolfo D. Sebastian, was a municipal councilor, and a resident of Barangay Parog-Parog, 2 Solana, which is about a thirty-minutes walk from Nabbotuan. The victim's son, Reymundo 3 Sebastian, who witnessed the killing, is a member of Civilian Armed Forces Geographical Unit (CAFGU) attached to the Philippine Army Detachment at Callilliauan, 4 Solana. The facts as found by the Office of the Solicitor-General, 5 which we find to be duly supported by the records, are as follows: At about 6 o'clock in the evening of July 7, 1992, appellant Rodrigo Agsunod, Jr. his five (5) companions, who wore fatigue uniforms and were armed with the armalite rifles, arrived at the house of Rodolfo Sebastian, a barangay councilman, in Barangay Parug-Parug, Solana, Cagayan. Appellant inquired from Raymundo Sebastian, son of Rodolfo Sebastian and a CAFGU member, as to the whereabouts of his father. After being told that Rodolfo was not around, appellant waited a while. Late, appellant called Raymundo and asked him to accompany them to the house of Ex-Barangay Captain Evaristo Julian which was located nearby. Raymundo was forced to accompany appellant and two (2) of his companions.1wphi1.nt Upon arrival at the house of Evaristo Julian, the group entered and found Evaristo taking with his family. Appellant asked Evaristo to bring out his guns. Evaristo Julian answered that his firearms were all licensed, that his .38 caliber pistol was in the custody of the PNP of Solana, Cagayan, and that only a .22 caliber rifle was left in his possession. Appellant asked to see the rifle. Evaristo brought it out. Thereupon, the group left taking with them Evaristo's .22 caliber rifle (TSN, November 10, 1993, p. 6; TSN, November 24, 1993, pp. 4-7). The group returned to the house of Rodolfo Sebastian. There, they saw Rodolfo Sebastian, who had just arrived, conversing with appellant's three (3) other companions in the yard of his house. Upon seeing appellant and his armed companions, Rodolfo Sebastian rushed towards his house. Instantaneously, appellant fired at Rodolfo Sebastian using Evaristo's .22 caliber rifle. The bullet grazed Rodolfo's chest. Wounded, Rodolfo Sebastian nonetheless tried to reach his house but appellant's companions fired their armalite rifles at him killing Rodolfo Sebastian on the spot. (TSN, November 10, 1993, pp. 6-10; TSN, November 17, 1993, pp. 3-15). Ten (10) months later, or on May 27, 1993, appellant was arrested in Tuguegarao, Cagayan by operatives of the Philippine Army (PA) Detachment in Calilauan, Solana, Cagayan. Thereupon, appellant was brought to the PA Detachment in Calilauan where he was positively identified by Raymundo Sebastian and Purificacion Sebastian as among the killers of Rodolfo Sebastian. In

that confrontation, Raymundo Sebastian and Purificacion Sebastian came to know for the first time that appellant's name was Rodrigo Agsunod, Jr. (TSN, November 17, 1993, p. 6; TSN, April 21, 1994, pp. 6-10). Among the assailants, only appellant was identified and arrested. Hence, in an Information dated July 1, 1993, Provincial Prosecutor Alejandro A. Pulido III charged Rodrigo B. Agsunod, Jr. with the crime of Murder, committed as follows: That on or about July 7, 1992, in the Municipality of Solana, Cagayan, and within the jurisdiction of this Honorable Court, the said accused Rodrigo Agsunod, Jr. Y Bibay, together with several John Does, who were not identified, armed with guns, conspiring together and helping one another, with intent to kill, with evident premeditation, with treachery, taking advantage of superior strength, and with aid of armed men, did then and there wilfully (sic), unlawfully attack, assaults and shoot one, Rodolfo Sebastian, inflicting upon him several gunshot wounds on the different parts of his body which caused his death. Contrary to law. Arraigned on October 20, 1993, appellant, duly assisted by counsel de oficio Atty. Antonio N. Laggui, entered a plea of NOT GUILTY. Trial on the merits ensued. The prosecution presented three (3) witnesses: (1) Purificacion Sebastian, the wife of the victim, and (2) Reymundo Sebastian, the son of the victim, who both witnessed the killing, and (3) Evaristo Julian, the former barangay captain, who corroborated the testimonies of the eyewitnesses as to the events leading to the killing. On December 17, 1993, appellant, through counsel, filed a Motion for Leave to file Demurrer to Evidence, which was granted. The Demurrer 6 alleged that the prosecution failed to prove conspiracy; that the shooting of the victim by the accused is doubtful, and that there was no proof of cause of death of the victim nor was there a police report of the incident, hence accused was entitled to an acquittal. The prosecution duly filed its Opposition to the Demurrer. In the meantime, on February 9, 1994, Atty. Antonio N. Laggui manifested in open court that he was withdrawing as counsel de oficio on the ground that he and accused could not agree on the theory of the defense, and the court appointed Atty. Raul S. Morales as counsel de oficio for the accused. Trial continued for the reception of evidence. The defense presented the following as witnesses: (1) Rodrigo B. Agsunod, Jr., accused-appellant himself, who claimed that he was at home "resting" on the night of July 7, 1992; 7 (2) Angelito Dieza, who testified that he had a drinking session with appellant until around 5:00 o'clock in the afternoon of July 7, 1992; 8 (3) Gloria Agsunod, the wife of appellant, who likewise testified that appellant never left their house on the night of the incident since he was stone drunk at that time; 9 (4) Balbina Viernes, who testified that she went to the house of the appellant on the night of the incident where she heard appellant's wife berating him for getting drunk; 10 and (5) Fatima Macatuggal, Special Investigator of the Commission of Human Rights, who testified that their office conducted an investigation in connection with the death of the victim but later archived the case because the perpetrators were allegedly unidentified members of the New People's Army. 11 On September 28, 1994, the trial court rendered a decision 12 finding accused Rodrigo B. Agsunod, Jr., guilty as charged. The trial court found that conspiracy existed among the appellant and the other John Does, and that the killing was attended by abuse of superior strength which qualified the killing to murder. Finding no mitigating or generic aggravating circumstances, the trial court imposed the penalty of reclusion perpetua. The dispositive portion of the decision states: WHEREFORE, the court finds accused Rodrigo Agsunod, Jr. y Bibay guilty beyond reasonable doubt of the crime of Murder and sentences him to suffer the penalty of Reclusion Perpetua

together with the accessory penalties provided for in Art. 41 of the Revised Penal Code and to pay the heirs of Rodolfo Sebastian a civil indemnity of Fifty Thousand (P50,000.00) Pesos and to pay the cost. On October 4, 1994, appellant filed a Notice of Appeal 13 from the aforesaid decision. Appellant claims that the trial court gravely erred in: I. . . . CONVICTING ACCUSED-APPELLANT OF MURDER DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II. . . . GIVING FULL WEIGHT AND CREDENCE TO CONFLICTING, UNBELIEVABLE, IMPROBABLE, AND INCONSISTENT TESTIMONIES OF THE PROSECUTION WITNESSES. The resolution of this appeal hinges on the determination of credibility of the testimonies of the prosecution witnesses. Appellant contends that a careful perusal of the testimonies of the prosecution witnesses would show these are not only tainted with glaring inconsistencies but are likewise unbelievable and improbable, viz: (1) Reymundo Sebastian testified that when appellant went to their house, he was carrying an armalite. Appellant argues that he could not have carried the armalite, and fire at the victim with the "borrowed" .22 cal. rifle. (2) Purificacion Sebastian could not have identified the type of weapon used in shooting her husband since she did not have any military background; (3) Evaristo Julian testified that appellant's group held hostage his grandchild, but Reymundo Sebastian never mentioned such fact in his testimony. (4) While the Death Certificate of Rodolfo Sebastian was presented in evidence, appellant contends that this merely proved the fact of death, not the cause of death of the victim. (5) While the incident occurred on July 7, 1992, the investigation was conducted only on May 31, 1993. The suspicious delay in reporting the incident to the authorities showed that the prosecution had no concrete evidence against appellant, who was merely a fall guy. The inconsistencies alleged by appellant appear to be more imagined than real. First, a review of the testimony of Reymundo Sebastian does not disclose that appellant was carrying an armalite rifle when he shot the victim with the .22 cal. rifle of Evaristo Julian. It was actually the companions of appellant who were carrying the armalite rifles. Purificacion Sebastian corroborated Reymundo's observation that appellant was armed with a .22 cal. rifle while the other five companions of appellant were armed with armalite rifles. 14 Second, Purificacion Sebastian already explained that she was familiar with firearms because military soldiers often dropped by their house. 15 Third, Evaristo Julian's testimony regarding the holding of his grandchild as hostage by appellant and his companions had no bearing on the killing of the victim, but in fact showed that Evaristo was coerced by appellant to hand over his .22 cal. rifle.

Fourth, the Certificate of Death of Rodolfo D. Sebastian 16 indicates the cause of death as "shock, multiple gunshot wounds on the body" which is consistent with the testimonies of the prosecution witnesses and the circumstances attending the killing of the victim. In this case, the corpus delicti was duly proven. Corpus delicti means the fact of a specific injury or loss sustained; and in murder, the fact of death is the corpus delicti. 17 Corpus delecti is the fact of the commission of the crime which may be proved by the testimony of eyewitnesses who saw it. 18 It has even been held that "[i]n a case of murder or homicide, it is not necessary to recover the body or to show where it can be found. There are cases like death at sea, where the finding or recovery of the body is impossible. It is enough that the death and the criminal agency causing it be proven, 19 to satisfy the requirement of corpus delicti. Fifth, the delay in reporting the incident could be explained by the fact that accused and his companions were total strangers to the prosecution witnesses, who could not give out the names of the assailants, but only describe them. Delay in revealing the identity of the perpetrators of a crime does not necessarily impair the credibility of a witness, especially where such witness gives a sufficient explanation. 20 Both Purificacion and Reymundo maintained that although they did not know the names of the suspects, they could readily identify them if they saw them again. 21 Knowing the identity of an accused is different from knowing his name. Hence, the positive identification of the malefactors should not be disregarded just because the name of the appellant was supplied to the eyewitness after the former was identified at the police station. For the weight of the eyewitness account is premised on the fact that the said witness saw the accused commit the crime, and not because he or she knew their names. 22 Besides, no strong ill-motive was attributed to the prosecution witnesses to make this Court conclude that they wanted to have the wrong men callously sent to jail merely to avenge the killing of a loved one. Lastly, Reymundo Sebastian testified in a categorical and straightforward manner as to the events leading to the death of his father. We quote: 23 Q: (Prosecutor Sagucio) Do you recall where were you on the night of July 7, 1992? A: Yes, sir. Q: Where were you? A: I was then in our house, sir. xxx xxx xxx Q: What were you doing in your house? A: On the night of July 7, I was then actually repairing our radio, sir. Q: When you were then repairing your radio in your house, do you recall if there is any unusual incident that transpired? A: There is, sir. Q: Will you tell this honorable court what was that event all about?

A: On the night of July 7, 1992, Rodrigo Agsunod and companions arrived in our house, sir. Q: About what time when Rodrigo Agsunod and his companions arrived in your house? A: Around 6:00 o'clock, sir. Q: And how many were they including Rodrigo Agsunod? A: They are six in all, sir. Q: When Rodrigo Agsunod and his five companions arrived, what happened? A: They were asking the whereabouts of my father, sir. Q: What is the name of your father? A: Rodolfo Sebastian, sir. Q: Who among the six who arrived in your house asked for the whereabouts of your father? A: Rodrigo Agsunod, sir. Q: What exactly did Rodrigo Agsunod tell you or ask from you? A: They asked the whereabouts of my father, sir. Q: And what was your answer? A: He is not around, sir. Q: And when you said that your father was not around, what happened next? A: Because when we could not wait for my father Rodrigo Agsunod called me and two of his companions, sir. Q: And what did he tell you when he called for you? A: He told me sir that we will go to the house of the ex-barangay captain, sir. Q: What is the name of the barangay captain? A: Evaristo Julian, sir. Q: And did you actually go to the house of ex-barangay captain Evaristo Julian? A: I was forced to go with them because they poked their gun to me, sir. Q: And you reached the house of Evaristo Julian?

A: Yes, sir. Q: When you were in the house of Evaristo Julian, what happened? A: They entered the house and after which they took the .22 caliber of the exbarangay captain, sir. Q: How far is your house away from the house of Evaristo Julian? A: Around fourteen (14) meters, sir. Q: And after Rodrigo Agsunod and his two companions took that caliber 22 rifle from the house of Evaristo Julian, what did you do? A: We went back to our house, sir. Q: Together with Rodrigo Agsunod and his companions? A: Yes, sir. Q: When you arrived in your house, what happened? A: Then my father is already there in our house who just arrived, sir. Q: Were there companions of your father when you arrived in your house? A: Yes the three companions of Rodrigo Agsunod that were left behind, sir. Q: After you arrived together with your two companions in your house, what happened? A: Upon our arrival sir then my father and the three companions of Rodrigo Agsunod who were left behind were then conversing with each other and then upon our arrival and upon seeing Rodrigo Agsunod and his companions then my father sensed something wrong so he went inside our house and at that instance Rodrigo Agsunod fired his gun to my father, sir. ATTY. LAGGUI: May we pray that the answer be stricken off the record being not responsive. COURT: Let it remain in the records. COURT: Proceed. PROS. SAGUCIO: Q: By the way, when you arrived in your house coming from the house together with Rodrigo Agsunod and his two companions coming from the house of Evaristo Julian, where were your father and the three (3) companions of Rodrigo Agsunod actually conversing with each other?

A: Within the yard of our house, sir. Q: How far is your house and that to the house of your father? A: Around three (3) meters, sir. Q: What gun was used by Rodrigo Agsunod in firing at your father? A: 22 caliber, sir. Q: That was the same gun he took from the house of Evaristo Julian? ATTY. LAGGUI: Leading your Honor. COURT: Sustained. PROS. SAGUCIO: Q: Was your father hit when he fired your father? ATTY. LAGGUI: Leading your Honor. COURT: Q: What happened when your father was fired upon? A: When he was fired upon by Rodrigo Agsunod my father directly went inside the house then he was followed by two of Rodrigo Agsunod's companions, sir. COURT: Proceed. PROS. SAGUCIO: Q: And when your father went inside your house and he was followed by the two companions of Rodrigo Agsunod, what happened? A: Then they again fired my father with M-16 rifle, sir. COURT: Q: Who did that? A: The companions of Rodrigo Agsunod, sir. COURT: Proceed. PROS. SAGUCIO: Q: Was your father hit when he was fired upon? A: Yes, sir.

Q: What parts of his body were hit? A: The witness is pointing to his abdomen and his right thigh sir. Q: Do you know how many gun shot wounds sustained or received by your father? ATTY. LAGGUI: Objection. COURT: The autopsy report is the best evidence. PROS. SAGUCIO: I withdraw the question. Q: Now, you said a while ago that Rodrigo Agsunod fired at your father with the use of a caliber 22 rifle, was your father hit when he fired they gun? COURT: Q: What happened to your father when he was fired upon? A: He was hit on the chest (daplis). COURT: Proceed. PROS. SAGUCIO: Q: What happened to your father when he was fired upon? A: He died, sir. Q: If that Rodrigo Agsunod is in court whom you said who first fired at your father is in court, can you point at him? A: Yes, sir. INTERPRETER: The witness went down to the witness stand and pointed to a person who gave his name as Rodrigo Agsunod. PROS. SAGUCIO: Q: Do you know the names of the five companions of Rodrigo Agsunod? A: No, sir. Q: But were you able to identify them? A: Yes I could identify them if I can see them, sir COURT: Why only Rodrigo Agsunod was accused here?

PROS. SAGUCIO: Yes your Honor because the other five the names were not known. COURT: Proceed. PROS. SAGUCIO: That will be all for the witness your Honor. Purificacion Sebastian likewise testified in a categorical, straight-forward manner which bears the earmarks of truth and certainty: 24 DIRECT EXAMINATION: Q: When you were giving your personal circumstances, you stated that you are a widow, when did your husband die? A: July 7, 1992, sir. Q: In what particular place did your husband die? A: Within our yard, sir. Q: Why, where is your house located? A: Parog-Parog, sir. Q: What town and province? A: Solana, Cagayan, sir. Q: What was the cause of the death of your husband? ATTY. LAGGUI: Incompetent, your Honor. PROS. SAGUCIO. If she knows, your Honor. COURT: May answer. A: He was shot, sir. PROS. SAGUCIO: Q: Who shot him? A: Rodrigo Agsunod, sir. Q: If that Rodrigo Agsunod who shot your husband is in the courtroom, will you be able to point at him? A: Yes, sir. Q: Will you please point to accused Rodrigo Agsunod?

MR. BIRUNG: The witness pointed to the accused who gave his name as Rodrigo Agsunod. PROS. SAGUCIO: Q: The accused shot your husband, do you know what kind of firearm did he use? A: I know, sir. Q: What kind of firearm did he use? A: .22 Caliber rifle, sir. Q: Was Rodrigo Agsunod alone in shooting your husband? A: He was the one who shot my husband but he has companions, sir. Q: Your husband was shot by Rodrigo Agsunod, what part of the body of your husband was hit? A: The chest and the thigh, sir. Q: How many were the companions of Rodrigo Agsunod? A: There are six in all, sir. Q: About what time when your husband was shot? A: 7:30 o'clock in the evening, sir. Q: It was already 7:30 o'clock in the evening, how were you able to recognize the accused? A: It was then bright at that time, sir. Q: Do you know the names of the five companions of Rodrigo Agsunod? A: If I could see them, I could still identify them, sir. xxx xxx xxx This Court has repeatedly stressed, "factual findings of the trial court, as well as its assessment of the credibility of witnesses are entitled to great weight and are even conclusive and binding, barring arbitrariness and oversight of some fact or circumstance of weight and substance. 25 The assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court. 26 As this Court has reiterated often enough, the matter of assigning values to declarations at the witness stand is best and most competently performed or carried out by a trial judge who, unlike appellate magistrates, can weigh such testimony in light of the accused's behavior, demeanor, conduct and attitude at trial. 27 Nothing in this case compels us to depart from this salutary rule. Appellant's invocation of denial and alibi is strained, and merits scant consideration. For alibi to prosper, accused-appellant must prove that he was not present at the scene of the crime but also that it was physically

impossible for him to have been present there at the time the offense was committed. 28 This appellant failed to do. While appellant himself testified that on the night of July 7, 1992, he was at home, "resting" without any mention as to his drunken state, 29 the other defense witnesses, in particular his wife, testified that appellant was at home, stone drunk. 30 Indeed, if appellant was truly drunk at the time of the incident, he would have surely pointed out his inebriated state during his testimony in court. Such glaring inconsistency between the testimony of the appellant and his witnesses casts serious doubts as to the veracity of his alibi. Considering further that appellant's residence in Barangay Nabbotuan is a mere thirty-minute walk from the locus criminis in Parog-Parog, Solana, it was not physically impossible for appellant to have committed the killing and then gone home afterwards. Well-entrenched is the rule that positive and categorical identification of the appellant as one of the assailants cannot prevail over his alibi that he was merely at home at the time of the incident. 31 Appellant was identified by no less than two eyewitnesses, Purificacion Sebastian and Reymundo Sebastian, whose testimonies were corroborated by the testimony of Evaristo Julian, and their testimonies examined as a whole present an airtight narration of the events leading to the killing of the victim by appellant and his five companions. The trial court correctly appreciated the qualifying circumstance of abuse of superior strength. To take advantage of superior strength is to use excessive force out of proportion to the means available to the person attacked to defend himself. 32 In order to be appreciated it must be clearly shown that there was deliberate intent on the part of the malefactors to take advantage thereof. 33 In this case, appellant and his companions purposely used their superior and combined strength in committing the crime. The victim, who was unarmed, was clearly no match for his six assailants who were wearing military fatigues, five of whom were armed with armalite rifles, while appellant was armed with a .22 cal. rifle. The notorious inequality of forces between the victim and aggressors was adequately shown. Pursuant to existing jurisprudence, we likewise affirm the ruling of the trial court awarding the amount of P50,000.00 as civil indemnity to the heirs of the victim. 34 At the time of the commission of the crime, the penalty for Murder under Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to death. In the absence of any mitigating or aggravating circumstance, the penalty was correctly imposed in its medium period, which is reclusion perpetua. 35 WHEREFORE, the instant appeal is hereby DENIED, and the decision of the Regional Trial Court of Tuguegarao, Cagayan, Branch 5, convicting accused-appellant Rodrigo Agsunod, Jr. y Bibay of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua, is hereby AFFIRMED. Costs against appellant.1wphi1.nt SO ORDERED. Bellosillo, Puno, Mendoza and Buena, JJ., concur.

G.R. No. 126047 September 16, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEOPOLDO AQUINO alias Poldong and LORETO AQUINO, accused-appellants. BELLOSILLO, J.: LEOPOLDO AQUINO alias Poldong and LORETO AQUINO, brothers, appeal from the Decision of the Regional Trial Court, Br. 32, Agoo, La Union, finding them guilty of murder and sentencing them to reclusion perpetua, to pay the heirs of Loreto Cecilio P50,000.00 as civil indemnity, P21,596.00 for actual expenses, P100,000.00 as moral damages, and the costs. 1 On the night of 23 December 1988 Loreto Cecilio attended a Christmas dance in Bgy. Dulao, Aringay, La Union. Prosecution witness Pablo Medriano Jr. narrated in court that on the same evening he and three (3) lady friends were having snacks in a store near the dance hall. Loreto Cecilio was also at the store conversing with Ronald Medriano. Witness Pedro Medriano Jr. knew Loreto Cecilio because the latter was a friend of his brother Julito Medriano. At the back of the store were the accused Leopoldo Aquino and Loreto Aquino who were drinking liquor. While having their snacks, witness Medriano learned that a fight erupted between two (2) groups, one from Bgy. Dulao, and the other, from Bgy. Alaska. But the protagonists were immediately pacified. Shortly thereafter, the Aquino brothers approached Pablo Medriano and challenged him to a fight. They asked him if he could still remember the time when he stoned them, but Pablo replied in the negative. For fear of his life Pablo Medriano ran towards the house of Liberato Madriaga, his uncle, to seek shelter and help. Upon reaching the yard of his uncle, Pablo turned back to see if he was still being pursued by the Aquino brothers; instead, he saw them mauling Loreto Cecilio. Leopoldo Aquino was hugging Loreto Cecilio from behind while Loreto Aquino was boxing and hitting their victim. Already dazed and beaten, Loreto Cecilio was hit by Leopoldo with a stone on the neck causing him to fall down.1wphi1.nt Upon reaching the house of his uncle Liberato, Pablo was met by his mother who hid him from his attackers until some people carried the lifeless body of Loreto Cecilio to the yard of the house. The victim was rushed to the hospital but was pronounced dead on arrival. On 4 January 1989 Dr. Arturo Llavore, medico-legal officer of the National Bureau of Investigation in San Fernando, La Union, conducted a post-mortem examination of the exhumed body of Loreto Cecilio. In his report, Dr. Llavore concluded that the death of Loreto Cecilio was caused by a very strong force from a blunt object delivered on the right side of the neck. This conclusion confirmed the testimony of Pablo Medriano that Loreto Cecilio was hit by Leopoldo Aquino on the neck with a stone. As expected, the defense gave a different account of the events. According to accused-appellants, after 11 o'clock in the evening of 23 December 1988, they were drinking beer at the store of a certain Virgilio Bautista. The group of Pablo Medriano and that of the victim Loreto Cecilio were behind the store also drinking liquor. After 30 minutes past midnight of 23 December 1988, the two (2) camps started throwing stones at each other and a free-for-all ensued. The Aquino brothers denied participation in the melee. Instead, they pointed to prosecution witness Pablo Medriano and his companions as the ones who figured in the brawl. In view of the fight, they thought it prudent to go home and stay away from trouble. The following morning they were arrested and questioned for the killing of Loreto Cecilio. They were later released after being detained by the police for a couple of hours. Both

vehemently denied any involvement in the death of Loreto Cecilio. They claimed that the victim was a stranger and they had no grudge against him. There was no reason for them to kill or harm him. To buttress their defense, accused-appellants presented Ambrocio Caoile who testified that he was also at the Christmas dance that night of 23 December 1988. According to him, he stayed and roamed around the area looking for his friends from 10:00 o'clock in the evening of 23 December up to 2 o'clock the following morning. He confirmed that a fight broke out between two (2) groups, one from Bgy. Dulao, and the other from Bgy. Alaska. Caoile admitted seeing the Aquino brothers in front of the store of Virgilio Bautista. However, he denied having seen them figure in any altercation, mauling, or killing. In fact, according to Caoile, he did not observe any unusual incident during the dance except for the fracas between the two (2) groups; and, that he only learned about the death of Loreto Cecilio the next morning. In convicting the Aquino brothers of murder, the trial court ratiocinated thus The identity of the two accused has been established beyond reasonable doubt by the testimony of Pablo Medriano, Jr. He knew the two accused since he was still young as they all came from Dulao, Aringay, La Union . . . . Pablo Medriano could have seen clearly the mauling of Loreto Cecilio as the place of the mauling was well lighted. There was light from the store and the dance hall. The place of the mauling was just 10 to 12 meters from the store and the dance hall. On the other hand, the defense of the accused consisted merely of denials. They admitted they were at the scene of the incident. They also admitted that Pablo Medriano Jr. and Loreto CeciIio were also present near the store. But they tried to project a saintly poise of indifference to the fight between the two groups and smugly claims that they went home. Their witness Ambrocio Caoile also testified in the same manner by saying that there was no mauling incident involving Loreto Cecilio as he did not witness any mauling during all the time he was near the store . . . . The testimony of Pablo Medriano Jr. is a positive narration of the facts surrounding the killing of Loreto Cecilio. The testimonies of the accused and their lone witness are mere denials hence negative. The testimony of Pablo Medriano Jr. being a positive narration of facts must be given greater weight than the negative testimonies of the defense witness of the two accused. Accused-appellants impute the following alleged errors to the lower court: (1) in considering the existence of conspiracy and the attendance of the qualifying circumstance of abuse of superior strength; (2) in disregarding the mitigating circumstance of voluntary surrender in favor of the accused; (3) in admitting in evidence the exhumation report/postmortem findings to show the injuries sustained by the deceased Loreto Cecilio; (4) in relying on the uncorroborated testimony of a single witness in convicting the two (2) accused and in not acquitting them on reasonable doubt; and, (5) in acting more like a prosecutor and/or failed to observe the neutrality of an impartial tribunal. We affirm the Decision of the court below. First. Accused-appellants submit that they could not have conspired to harm and kill Loreto Cecilio as the latter was a stranger to them and they had nothing against him. Their meeting was merely accidental. This argument is misplaced. Conspiracy exists when two (2) or more persons come to an agreement concerning the commission of a felony and decide to commit it. 2 What is fundamental for conspiracy is the unity of purpose and unity in the execution. 3 Direct proof of the accused's previous agreement to commit a crime is not indispensable. This fact may be deduced from the mode and manner in which the offense was perpetrated. 4 It is not required that there be an agreement for an appreciable period prior to the occurrence. It is sufficient that at the time of the commission of the offense, the accused had the same purpose and were united in its execution. 5 A conspiracy may be inferred without need of showing that the parties actually came together and agreed in express terms to enter into and pursue a common design. 6 As found by the trial court

. . . [the accused-appellants'] behavior and participation as narrated by Pablo Medriano, Jr. clearly shows that there [was a] conspiracy by and between them in the commission of the crime. They aided each other in perpetrating the crime. They [had] the same common purpose, and they pursued it . . . . 7 Accused-appellants likewise claim that the trial court erred in considering the qualifying circumstance of abuse of superior strength. They insist that "the alleged mauling was a spur of the moment impulse, hence, it may not be said that the accused had cooperated and intended to use or secure advantage from such superior strength, or had specifically contrived or deliberately intended and prepared to take advantage of superior strength in a projected assault against the victim." 8 This contention is without merit. To appreciate the attendant circumstance of abuse of superior strength, what should be considered is whether the aggressors took advantage of their combined strength in order to consummate the offense. 9 The circumstance of superiority depends on the age, size and strength of the parties. It is considered whenever there is a notorious inequality of forces between the victim and the aggressor, assessing a superiority of strength notoriously advantageous for the aggressor which is selected or taken advantage of by him in the commission of the crime. 10 It is not necessary that a premeditated plan to use superior force against the victim be proved. It is enough that the facts show that this leverage in strength was employed of by the accused in the commission of the crime. In the instant case, the records show that accused-appellants took advantage of their combined strength against the unarmed and helpless Loreto Cecilio. Leopoldo Aquino embraced and held on to the victim while his brother Loreto Aquino hit and boxed the victim. Thus, even if the killing was a result of a chance encounter, the manner by which the crime was committed clearly indicates that accused-appellants made good use of their dominant strength. Second. Accused-appellants contend that the lower court should have appreciated the mitigating circumstance of voluntary surrender as they freely submitted themselves to the police on 19 September 1992 without any warrant of arrest having been served on them. We do not agree. For the mitigating circumstance of voluntary surrender to be properly appreciated, the following requisites must concur: (a) the offender was not actually arrested; (b) he surrendered to a person in authority or to an agent of a person in authority; and, (c) his surrender was voluntary. 11 In the instant case, the surrender of accused-appellants was far from voluntary. The first warrant of arrest issued on 5 January 1989 was returned unserved because they could not be found. 12 Thereafter, several alias warrants of arrest were issued stating therein the possible whereabouts of accused-appellants in La Union, Ilocos Sur, and Pangasinan. The warrant officer in Sta. Cruz, Ilocos Sur, again returned the warrant of arrest unserved because of failure to locate them. As to the warrant of arrest sent to Pangasinan, no return appeared on record. Despite these outstanding warrants of arrest, the Aquino brothers successfully managed to elude the long arm of the law until their surrender to the police through the municipal mayor of Aringay, La Union, on 19 September 1992 or more than three (3) years since the first warrant of arrest was issued. Besides, the mitigating circumstance of voluntary surrender should be appreciated only where there is nothing on record to show that the warrant of arrest had actually been served on the accused, or that it had been returned unserved for failure of the server to locate the accused, and there is direct evidence to show that the accused voluntarily presented himself to the police when he was taken into custody. 13 In People v. de la Cruz 14 we held that the search for the accused, which lasted four (4) years, belies the spontaneity of the surrender. Third. Accused-appellants aver that the trial court should not have admitted the exhumation report because the exhumed body was not properly identified to be that of the victim Loreto Cecilio. This averment is clearly without basis. As correctly argued by the Solicitor General

Dr. Arturo Llavore testified that Carlito Cecilio, brother of the deceased Loreto Cecilio, actually made the request for the exhumation of the latter's cadaver. In fact, Carlito identified the cadaver as that of his deceased brother, as shown in a photograph taken immediately after the exhumation. Fourth. Accused-appellants insist that the crime charged against them was not proven beyond reasonable doubt; and, that the reliance by the trial court on a single and uncorroborated witness was not sufficient to warrant a conviction. This Court is not persuaded. A doctrine of long standing in this jurisdiction is that the testimony of a lone eyewitness, if credible and positive, is sufficient to convict an accused. 15 The testimony of a single witness, free from any signs of impropriety or falsehood, is sufficient for conviction, even if uncorroborated. 16 This Court accords the highest respect to the findings of the trial court on the issue of credibility of witnesses. 17 In fact, jurisprudence is replete with cases declaring that the assessment by the lower court of the credibility of an eyewitness deserves the highest respect of the Supreme Court considering that it had the direct opportunity to observe his deportment and manner of testifying and availed of the various aids to determine whether he was telling the truth or simply concocting lies. 18 As observed by the court a quo The Honorable Court noted that Pablo Medriano, Jr. is an engineering student or graduate and appears to be intelligent. The Honorable Court intently observed the deportment and behavior of Pablo Medriano, Jr. and concludes that he is telling the truth. Pablo Medriano, Jr., testified in a spontaneous and straightforward manner. So that in the light of the declarant's demeanor, conduct and attitude, his version of the incident is more believable and credible. 19 Absent any consequential argument or proof to the contrary, we see no reason to disturb the findings of the court below. Corollarily, accused-appellants parry the imputation of guilt on their part by advancing different theories and arguments with respect to the commission of the crime. They even pointed to the eyewitness Pablo Medriano Jr., and his brother Julito Medriano as the ones responsible for the death of Loreto Cecilio. Unfortunately, this feeble attempt at exoneration not only appears to be incredible but is likewise unsupported by facts and evidence on record. Clearly, what stands on record is the fact that the eyewitness, Pablo Medriano Jr., positively identified accusedappellants as the perpetrators of the crime. Accused-appellants failed to prove any motive on the part of Pablo Medriano Jr. to falsely accuse them of the crime charged. Thus, his testimony must stand. On the other hand, the defense of accused-appellants consists merely of denials as against the positive identification by the prosecution eyewitness. We have ruled often enough that positive identification by an independent witness who has not been shown to have any reason to falsely testify must prevail over the simple denials and unacceptable alibi of the accused. 20 The murder of Loreto Cecilio by Leopoldo Aquino and Loreto Aquino was indeed established beyond reasonable doubt. Fifth. A conscientious perusal of the records yields no proof that the trial judge acted partially and improperly. That he asked questions in the course of the trial does not make him a biased judge. In fact, the questions he propounded were merely clarificatory aimed at elucidating the issues of the case. We ruled in People v. Manalo. 21 It is not only the right but oft-times the duty of a trial judge to examine witnesses when it appears necessary for the elucidation of the record. Under the system of legal procedure in vogue in this oft-times expedient or necessary in the due and faithful administration of justice for the presiding

judge to re-examine a witness in order that his judgment when rendered may rest upon a full and clear understanding of the facts. WHEREFORE, the Decision of the Regional Trial Court, Agoo, La Union, finding accused-appellants LEOPOLDO AQUINO and LORETO AQUINO GUILTY of MURDER and sentencing each of them to suffer the penalty of reclusion perpetua and to pay the heirs of Loreto Cecilio P50,000.00 as death indemnity and P21,596.00 for actual damages, is AFFIRMED with the MODIFICATION that the award of moral damages is REDUCED from P100,000.00 to P50,000.00 in line with prevailing jurisprudence. 22 Costs against accusedappellants.1wphi1.nt SO ORDERED.

G.R. No. 127663 March 11, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO VALDEZ, accused-appellant. MELO, J.: Accused-appellant Rolando Valdez seeks reversal of the judgment of conviction promulgated by Branch 45 of the Regional Trial Court of the First Judicial Region stationed in Urdaneta, Pangasinan, on October 24, 1996 sentencing him to death for the complex crime of Multiple Murder with Double Frustrated Murder, and likewise separately sentencing him to suffer the prison term of reclusion perpetua for the crime of Illegal Possession of Firearms and Ammunition (Presidential Decree No. 1866). The information against accused-appellant, Bernardo Castro, and one John Doe for the complex crime of Multiple Murder with Double Frustrated Murder charged: That on or about 8:30 o'clock in the evening of September 17, 1995, at Sitio Cabaoangan, barangay Nalsian, municipality of Manaoag, province of Pangasinan, and within and jurisdiction of this Honorable Court, the said accused conspiring, confederating and mutually helping one another with intent to kill, and each armed with caliber .30 carbines did then and there willfully, unlawfully and feloniously, with evident premeditation, abuse of superior strength and treachery, simultaneously attacked and fired their caliber .30 carbines at Ramon Garcia, Jr., Jean Marie Garcia, Willy Acosta, Sandra Montano, William Montano and Randy Tibule while they were on board a tricycle, on their way to a dance party, hitting them in the different parts of their bodies which caused the instantaneous death of Ramon Garcia, Jr., Jean Marie Garcia, Willy Acosta and Sandra Montano, to the damage and prejudice of then respective heirs, and inflicting fatal injuries to William Montano and Randy Tibule, in the different parts of their bodies, having thus performed all the acts which would have produced the crime of murder with respect to both but which did not by reason of causes independent of the will of the accused, namely, the able and timely medical assistance given the said victims William Montano and Randy Tibule, which prevented their death. Contrary to Article 248 in Relation to Article 48 and Article 6 of the RPC. (pp. 1-2, Record of Crim. Case No. U-8747) The Information for illegal Possession of Firearms and Ammunitions permently averred: That on or about 8:30 o'clock in the evening of September 17, 1995 at Sitio Cabaoangan, Barangay, Nalsian, Municipality of Manaoag, province of Pangasinan and within and jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and feloniously, have in his possession, custody and control, a firearm, to wit: Caliber .30 carbine without first having secured the proper license thereof from the authorities and which he used in committing the offense of multiple murder and double frustrated murder. Contrary to Presidential Decree 1866. (p. 1, Record of Crim. Case No. U8739)

The inculpatory facts adduced by the prosecution during trial are succinctly summarized in the People's brief as follows: On September 17, 1995, at around 8:00 in the evening, William Montano (16 years old), Randy Tibule (17 years old), Jean Maria Garcia, Willie Acosta, Sandra Montano and Ramon Garcia, Jr. were at the house of Randy Tibule in Manaoag, Pangasinan. They were discussing how to go to the wedding party of Jean Marie's cousin in Sitio Cabaoangan (TSN June 11, 1996, pp. 7-8; June 18, 1996, pp. 23-24). After discussion, they rode in the tricycle driven by Ramon Garcia going to Cabaoangan. Behind Garcia were Tibule and Willie. Jean was seated inside the side car with Sandra and William Montano (TSN June 11, 1996, pp. 7-11; TSN June 18, 1996. pp. 23-25). After making a turn along the barangay road leading to Sitio Cabaoangan they met appellant Rolando Valdez and his companions who were armed with guns. The tricycle's headlight flashed on their faces. Without warning, they pointed their guns and fired at Montano's group. Thereafter, after uttering the words, "nataydan, mapan tayon" (They are already dead. Let us go), Valdez and companions left (TSN June 11, 1996, pp. 11-14). The shooting incident left Ramon Garcia, Jean Marie Garcia, Sandra Montano and Willie Acosta dead (TSN June 11, 1991, pp. 14-16). They sustained the following injuries: Jean Marie Garcia: gunshot wound .5 cm. in diameter, 1 inch lateral of the nipple right through and through trajecting the middle lobe of the lungs, it ventricle of the heart, middle lobe of the lung, left with point of exit 1 inch in diameter 1 inch lateral of the nipple, left.

Ramon Garcia: gunshot wound, .5 cm. in diameter point of entrance ear canal left thru and thru trajecting the skull brain substance with point of exit temporal area light. another gunshot wound .5 cm in diameter point of entrance anterior axilliary line left at the lable nipple trajecting the lung (left) heart ventricle and lung (right) with point of exit 1 cm. in diameter, 1 inch lateral the nipple right.

Sandra Montano: gunshot wound .6 cm. in diameter, point of entrance at the temporal area left, penetrating the skin, skull minigas, brain substance (right) (tempral regis) where the slug lodge.

Willie Acosta: gunshot wound, .5 cm. in diameter below coastal arch point of entrance trajecting the upper 3rd of the stomach thru and thru trajecting the upper third of the stomach of thoracic vein with the point of exit 1 cm. in diameter at the level of the 7th thorasic vertebrae.

On the other hand, William Montano and Randy Tibule survived the attack. They suffered serious gunshot injuries that could have caused their death were it not for the timely medical attention given them (TSN July 3, 1996, p. 6). Montano sustained several gunshot wounds on the left arm, two on the left upperback, another on the left shoulder and middle right finger (TSN June 25, 1996, p. 608). Tibule sustained two gunshot wounds, one at the fifth upper quadrant (stomach) and the other at the left periumbelical (TSN July 3, 1996, pp. 7-8).

(pp. 215219, Rollo.) In its decision dated October 24, 1996, the trial court rendered a judgment of conviction in the two cases, finding and disposing: IN CRIMINAL CASE NO. U-8747: the accused ROLANDO VALDEZ y LIPURDA, GUILTY beyond reasonable doubt of the crime of MULTIPLE MURDER WITH DOUBLE FRUSTRATED MURDER defined and penalized under Republic Act No. 7659 otherwise known as the Heinous Crime Law, the offense having been a complex crime the penalty of which is in the maximum, and with the attendant aggravating circumstances of evident premeditation and abuse of superior strength, hereby sentences him the ultimum suplicum of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law, to pay the heirs of the deceased RAMON GARCIA, JR., WILLIE ACOSTA, JEMARIE GARCIA and SANDRA MONTANO and the injured victims WILLIAM MONTANO and RANDY TIBULE, as follows: 1). To the heirs of the deceased Ramon Garcia, Jr.: a) P50,000 as indemnity b) P53,116.00 as actual damages c) P500,000.00 as moral damages. 2) To the heirs of the deceased WILLIE ACOSTA: a) P50,000 as indemnity b) P26,358.00 as actual damages c) P500,000.00 as moral damages 3) To the heirs of the deceased JEMARIE GARCIA: a) P50,000 as indemnity b) P500,000 as moral damages 4) To the heirs or the deceased Sandra Montano: a) P50,000 as indemnity b) P48,269.80 as actual damages c) P500,000.00 as moral damages 5) To the victim WILLIAM MONTANO:

a) P38,133.92 as actual damages b) P 100,000.00 as moral damages 6) To the victim RANDY TIBULE: a) P36,233.65 as actual damages b) P100,000.00 as moral damages and to pay the costs. WITH RESPECT TO CRIMINAL CASE NO. U-8749: the accused ROLANDO VALDEZ y LIPURDA GUILTY beyond reasonable doubt of the crime of ILLEGAL POSSESSION OF FIREARM AND AMMUNITIONS (Presidential Decree No. 1866) and hereby sentences him to suffer imprisonment of RECLUSION PERPETUA and to pay the costs. Finally, it is said: "Dura lex, sed lex," translated as: "The law is harsh, but that is the law!" SO ORDERED. (pp. 180l81, Rollo.) Hence, the instant review, with accused-appellant anchoring his plea for reversal on the following assigned errors: I THE TRIAL COURT ERRED FAILING TO CONSIDER THE MATERIAL SUBSTANTIAL, IMPORTANT AND SIGNIFICANT, DISCREPANCIES IN THE AFFIDAVITS OF PROSECUTION WITNESSES AND THEIR TESTIMONIES IN COURT; II THE TRIAL COURT ERRED IN UPHOLDING THE RECANTATIONS OF PROSECUTION WITNESSES; III THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE SERIOUS DOUBTS ON THE IDENTITY OF ACCUSED, ROLANDO VALDEZ AS THE GUNMAN; IV THE TRIAL COURT ERRED IN FAILING TO CONSIDER MOTIVE ON THE PART OF BERNARDO CASTRO TO FIRE AT, AS HE ACTUALLY FIRED AT THE OCCUPANTS OF MOTORIZED TRICYCLE; V THE TRIAL COURT ERRED FAILING TO APPRECIATE AGAINST THE PROSECUTION ITS DELIBERATE FAILURE TO PRESENT THE POLICE INVESTIGATORS WHO INVESTIGATED THE INCIDENT AND IT WAS THE DEFENSE WHICH PRESENTED SAID POLICE INVESTIGATORS;

VI THE TRIAL COURT ERRED IN DECLARING THAT ACCUSED ROLANDO VALDEZ DID NOT DENY THE ACCUSATION AGAINST HIM VIOLATION OF P.D. 1866 BECAUSE HE DID NOT ALLEGEDLY TOUCHED IT IN HIS MEMORANDUM. (pp. 106-107, Rollo) After a painstaking review of the record and a deliberate consideration of the arguments of accused-appellant, the Court does not find enough basis to reverse. Accused-appellant claims that the trial court in failing to consider what he says are material, substantial, important and significant discrepancies between the affidavits of prosecution witnesses and their testimonies in court. Accused-appellant points to the Statement of William Montano, taken by SPO1 Mario Suratos on September 20, 1995 (Exhibit 1: p. 238, record), and the Statement taken on September 24, 1995 (Exhibit 4: p. 291, Record), both in Villaflor Hospital, Dagupan City where William Montano specifically named Bernard Castro as the person who flagged down the motorized tricycle he and the other victims were riding. This, he claims, is inconsistent with his testimony during the where he stated: ATTY. RANCHEZ: Q. Now, were you able to reach Sitio Cabauangan, Nalsian, Manaoag Pangasinan?. A. No, sir. Q. Why? A. When we were entering the road at Sitio Cabauangan at around ten to fifteen meters, somebody plugged (sic) down the tricycle, sir. Q. And what happened next after somebody plugged (sic) down your tricycle? A. Somebody standing was lighted by the headlight of our motorcycle, sir. Q. Now, what happened next, if any? A. The one who was standing and was lighted with the headlight was immediately recognized by me, sir. Q. Who was that person whom you saw and you immediately recognized? A. That one, sir. ACTG. INTERPRETER: Witness pointing to a person wearing white t-shirt seated at the bench for the accused, and when asked his name, gave his name as Ronaldo Valdez. (pp. 11-12, tsn,

June 1, 1996) We are not persuaded. In his Statements dated September 20, 1995 (Exhibit 1) and September 24, 1995 (Exhibit 4), William Montano pointed to Bernard Castro as the person who flagged down the motorized tricycle ridden by the victims. On November 8, 1995, William and his co-victim/survivor Randy Tibule executed a "Pinagsamang Salaysay sa Pag-uurong ng Demanda" where they disclaimed having been Bernard Castro at the scene of the crime. They declared that after a more thorough consideration of what transpired, they have realized that the filing of the complaint against Bernard Castro was a mistake and the result of misunderstanding or misapprehension of what actually happened. In his testimony in court, William, however, identified accused-appellant as the person illuminated by the headlight of the tricycle, for which reason William readily recognized him. We, therefore, find nothing inconsistent between his declarations during the investigation and his testimony in court. The lack of precision with which he distinguished between the person who flagged down the tricycle and the other person whom he recognized because of the headlight of the tricycle cannot be considered as inconsistency at all. The same holds true with discrepancies between the statement of Randy Tibule during the investigation and his testimony in court. Accused-appellant stubbornly insists that following the withdrawal or retraction of the accusation of several witness against Bernard Castro, these same witnesses' accusation against accused-appeallant becomes doubtful. We are not convinced. In all references by accused-appellant in pages 10-12 of his brief to the sworn declaration of prosecution witnesses made during the investigation of the case. Bernard Castro may have been identified and named as one of the gunmen. It may readily be noted in these very same references, however, that all these prosecution witnesses referred to two other companions, then unidentified, of Bernard Castro. Even in the Joint Affidavit (Exhibit "7") referred to in page 11 of the brief, the police investigators categorically referred to "Bernard Castro y Nazareno, alias Toti as one of the suspect or assailants involved in the shooting incident" (p. 112, Rollo). The logical conclusion that may be drawn therefrom is that there is at least one other assailant in addition to Bernard Castro, and as it developed, accused-appellant was subsequently and positively named as such. Withal, we cannot subscribe to accused-appellant's ratiocination that if the witnesses pointed to Bernard Castro as one of the perpetrators of the crime, then it follows that accused-appellant cannot be one other and additional perpetrators anymore. Accused-appellant's reasoning on this point is absolutely flawed. It is totally unacceptable. Accused-appellant likewise seeks shelter in the mysterious withdrawal of the victims' charges against Bernardo Castro. He insinuates that such recantation should not have been given any consideration. But, this is water under the bridge. Anyway, even in the remotest posibility that the retraction of the accusation against Bernardo Castro may be reversed, it does not get accused-appellant of the hook. Considering that accused-appellant had himself been positively identified, together with Bernard Castro, as one of the other perpetrators of the crime, his conviction may still stand independently and regardless of whether or not Castro is indicted or remains unprosecuted. Accused-appellant further argues that it is not he but Castro who had the motive to shoot and fire at the occupants of the motorized tricycle, mistaking one of the occupants thereof for Isidro Capistrano, Castro's former classmate and with whom he earlier had an altercation. It is very clear in his brief, however, that accused-appellant predicates this argument on the mistaken premise that he was not positively identified in the case at bar although he admits that it is established that it is established that he was at the scene of the crime (p. 114, Rollo). This argument will not hold simply because it is settled that accused-appellant had been positively identified by eyewitnesses and victims William Montano and Randy Tibule. It is basic and fundamental rule

that proof of motive is necessary for conviction only when there is doubt as to the identity of the accused, not when accused has been positively identified as in the present case (People vs. Caggauan, 94 Phil . 118 [1953]; People vs. Realon, 99 SCRA 422 [1980]; People vs. Pano, 257 SCRA 274 [1996]). Besides, it is also to be noted that lack of motive for committing the crime does not preclude conviction, considering that, nowadays, it is a matter of judicial knowledge that persons have killed or committed serious offense for no reason at all (People vs. Cabodoc, 263 SCRA 187 [1996]). Accused-appellant further contends that the prosecution's deliberate intentional failure to present the investigating police officers and their Joint Affidavit (Exhibit "7") constitutes culpable suppression of evidence which, if duly taken into account, will merit his acquittal. The argument is puerile, simply because the defense itself was able to present the police officer and Exhibit "7" (p.116, Rollo). It is to be further noted that as earlier pointed out, the declaration of SPO1 Suratos and SPO1 Carbonel did not categorically rule out the possibility of convicting other persons as co-principal of Castro. On the contrary, it is clear from such affidavit that there was more than just one perpetrator of the crime. It even confirms and corroborates the eyewitness accounts of William Montano and Randy Tibule pointing to accusedappellant as one of the other companions of Castro. After meticulously and carefully going through each and every piece of evidence on record, the Court finds no reason to depart from the trial court's accord of credence to the eyewitness accounts of William Montano and Randy Tibule who positively identified accused-appellant as one of the persons who shot and fired at them and their companions that fateful night. We agree with the trial court that evidence points beyond reasonable doubt that accused-appellant was one of those principally responsible for the death of the four victims in this case and the wounding of two others. There is also sufficient evidence that the aggravating circumstances of treachery attended the killing, thus, qualifying the same to murder. Under paragraph 16, Article 4 of the Revised Penal Code, the qualifying circumstance of treachery is present when the offender employs means, methods, or forms in the execution of the crime which tend directly and especially to ensure its execution without risk to himself arising from any defensive or retaliatory act which the victim might make (People vs. Santos, 270 SCRA 650 [1997]). The settled rule is that treachery can exist even if the attack is frontal if its is sudden and unexpected, giving the victim no opportunity to repel it or defend himself against attack. What is decisive is that the execution of the attack, without the slightest provocation from the victim who is unarmed, made it impossible for the victim to defend himself or to retaliate (People vs. Javier, 269 SCRA 181 [1997]). The trial court ruled that evident premeditation is likewise present. After reviewing the evidence, however, we do not find any showing of evident premeditation on the part of accused-appellant. While there may be testimonial evidence pointing to an altercation between Bernard Castro and a certain Capistrano, it does sufficiently prove the attendance of the aggravating circumstance of evident premeditation. It is not enough that evident premeditation is suspected or surmised, but criminal intent must be evidenced by notorious outward acts evidencing determination to commit the crime. In order to be considered an aggravation of the offense, the circumstance must not merely be "premeditation"; it must be "evident premeditation" (People vs. Tojeras, 43 SCRA 158 [1972]). To establish the existence of evident premeditation, the following have to be proved: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the offender had clung to his determination; and (3) sufficient lapse of time between the determination and the execution to allow the offender to reflect on the consequences of his act (People vs. Juan, 254 SCRA 478 [1996]). Establishing a basis or motive for the commission of the crime does not constitute sufficient ground to consider the existence of evident premeditation. At best, it may indicate the time when the offenders determined to commit the crime (the first element). Their act of arming themselves wit caliber .30 carbines and thereafter

waiting for their supposed victims at ambush position may have also indicate that they clung to their determination to commit the crime (the second element). More important that these two elements id the proof that a sufficient period of time had elapsed between the outward act evidencing intent and actual commission of the offense (the third element). There must have been enough opportunity for the initial impulse to subside. This element is indispensable for circumstance of evident premeditation to aggravate the crime. In People vs. Canial, 46 SCRA 134 [1972], this Court reiterates: In other words, this circumstance can be taken into account only when there had been a cold and deep meditation, and a tenacious persistence in the accomplishment of the criminal act. There must be 'an opportunity to coolly and serenely think and deliberate on the meaning and the consequences of what they had planned to do, an interval long enough for the conscience and better judgment to overcome the evil desire and scheme.... (p. 649) As early as in People vs. Durante, 53 Phil. 363 [1929], the Court had stressed the importance of sufficient time between the criminal act and the resolution to carry out the criminal intent, affording such opportunity for cool thought and reflection to arrive at a calm judgment. Obviously, this element is wanting in the case at bar. Right after the supposed heated argument between Bernard Castro and Capistrano, Castro and company went to get the firearms and not long thereafter mounted the assault. There was no chance for the anger to subside. The culprits in the case at bar had no opportunity for cool thought and reflection to arrive at a calm judgment. The other aggravating circumstance considered by the trial court is that of abuse of superior strength. This contravenes the very basic and elementary doctrine in our jurisdiction that the aggravating circumstance of abuse of superior strength is absorbed in treachery (People vs. Mobe, 81 Phil. 58 [1948]; People vs. Nierra, 96 SCRA 1 [1980]; People vs. Torrefiel, 256 SCRA 369 [1996]). Notwithstanding the absence of any aggravating circumstances, if we were to uphold the trial courts' premises on the complex nature of the crime committed, the death sentence, being the maximum penalty for murder, would still have been the impossible penalty under Article 48 of the Revised Penal Code. The Court however, finds compelling reasons to reduce the sentence from one death penalty (for the complex crime of multiple murder with double frustrated murder) and one reclusion perpetua (for the crime of illegal possession of firearms and ammunitions) to four counts of reclusion perpetua (for 4 murders) and two indeterminate sentences of prision mayor to reclusion temporal (for the 2 frustrated murders). The recommendation of the Solicitor General in the People's brief that accused-appellant should instead be convicted of four counts of murder and two counts of frustrated murder is well taken. The trial court erred when it allowed itself to be carried away by the erroneous Information filed by the Office of the Provincial Prosecutor of Pangasinan charging the complex crime of multiple murder and double frustrated murder (p. 1, Records: Crim. Case No. U-8747). It may be noted that in his Resolution dated September 26, 1995, the investigating municipal trial court judge of Manaoag, Pangasinan, found a prima facie case for four separate counts of murder (pp. 101-102, Ibid.) Too, the same investigating judge in his Resolution dated October 31, 1995 found prima facie for two counts of frustrated murder (pp. 43-44, Ibid.). It was upon reinvestigation by the Office of the Provincial Prosecutor of Pangasinan that a case for the complex crime of murder with double frustrated murder was instead filed per its Joint Resolution dated November 17, 1995 (pp. 4-6, Ibid.). The concept of a complex crime is defined in Article 48 of the Revised Penal Code, to wit: Art. 48. Penalty for complex crimes When a single act constitutes two or more grave or less grave felonies or when an offense is a necessary means for committing the other, the penalty for

the most serious crime shall be imposed, the same to be applied in its maximum period. (As amended by Act No. 4000.) The case at bar does not fall under any of the two instances defined above. The Office of the Provincial Prosecutor of Pangasinan erroneously considered the case as falling under the first. It is clear from the evidence on record, however, that the four crimes of murder resulted not from a single act but from several individual and distinct acts. For one thing, the evidence indicates that there was more than one gunman involved, and the act of each gunman is distinct from that of the other. It cannot be said therefore, that there is but a single act of firing a single firearm. There were also several empty bullet shell recovered from the scene of the crime. This confirms the fact that several shots were fired. Furthermore, considering the relative position of the gunmen and their victims, some of whom were riding the motorized tricycle itself while the others were seated inside the sidecar thereof, it was absolutely impossible for the four victims to have been hit and killed by a single bullet. Each act by each gunman pulling the trigger of their respective firearms, aiming each particular moment at different persons constitute distinct and individual acts which cannot give rise to the complex crime of multiple murder. We therefore rule that accused-appellant is guilty, not of a complex crime of multiple murder, but of four counts of murder for the death of the four victims in this case. In the same manner, accused-appellant is likewise held guilty for two counts of frustrated murder. Art. 248 of the Revised Penal Code, as amended, provides the penalty of reclusion perpetua to death for the crime of murder. Without any mitigating or aggravating circumstance attendant in the commission of the crime, the medium penalty is the lower indivisible penalty of reclusion perpetua. In the case at bar, accused-appellant, being guilty of four separate counts of murder, the proper penalty should be four sentences of reclusion perpetua. In addition, he being guilty of two counts of frustrated murder, accused-appellant must be meted out an indeterminate sentence ranging from a minimum of 6 years and 1 day of prison mayor to maximum of 12 years and 1 day of reclusion perpetua for each offense. Now, to the matter of accused-appellant's conviction for illegal possession of unlicensed firearm under Presidential Decree No. 1866. It was recently held in the case entitled People vs. Molina (G.R. No. 115835-36, July 22, 1998), and reiterated in People vs. Feloteo (G.R. No. 124212, September 17, 1998), that there can be no separate conviction of the crime of illegal possession of firearms under Presidential Decree No. 1866 in view of the amendments introduced by Republic Act No. 8294. Instead, illegal possession of firearms is merely to be taken as an aggravating circumstance per Section 1 of Republic Act No. 8294, which in part, provides: If homicide or murders is committed with the use of unlicensed firearm, such of an unlicensed firearm shall be considered as an aggravating circumstance. Republic Act No. 8294 took effect on July 6, 1997, fifteen days after its publication on July 21, 1997. The crimes involved in the case at bar were committed on September 17, 1995. As in the case of any penal law, the provisions of Republic Act No. 8294 will generally have prospective application. In cases, however, where the new law will be advantageous to the accused, the law may be given retroactive application (Article 22, Revised Penal Code). Insofar as it will spare accused-appellant in the case at bar from a separate conviction for the crime of illegal possession of firearms, Republic Act No. 8294 may be given retroactive application in Criminal Case No. U-8749 (for Illegal Possession of Firearm) subject of this present review. As a word of caution, however, the dismissal of the present case for illegal possession of firearm should not be misinterpreted as meaning that there can no longer be any prosecution for the crime of illegal possession of firearm. In general, all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved (murder or homicide under Section 1, and rebellion, insurrection, sedition or attempted coup d'etat under Section 3).

However, the use of an unlicensed firearm in the case at bar cannot be considered as a special aggravating circumstance in Criminal Case No. U-8747 (for Complex Crime of Multiple Murder), also under review herein, because it will unduly raise the penalty for the four counts of murder from four reclusion perpetua to that of four-fold death. Insofar as this particular provision of Republic Act No. 8294 is not beneficial to accusedappellant because it unduly aggravates the crime, this new law will not be given retroactive application, lest it might acquire the character of an ex-post facto law. WHEREFORE, premises considered, the decision with respect to Criminal Case No. U-8747 is hereby MODIFIED. Accused-appellant is found guilty beyond reasonable doubt of four counts of murder and hereby sentenced to suffer the penalty of four sentences of reclusion perpetua. He is also found guilty beyond reasonable doubt of two counts of frustrated murder and hereby meted two indeterminate sentences, each, ranging from six (6) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum. The appealed judgment relating to the civil liabilities of accused-appellant towards the six victims is AFFIRMED. Criminal Case No. U-8747 involving Presidential Decree No. 1866 is hereby dismissed. No special pronouncement is made as to costs. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisma, Pardo, Buena and Gonzaga-Reyes, JJ., concur. Panganiban, J., in the result.

G.R. Nos. 76416 and 94312 July 5, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUSTOM BERMAS y BETITO and GALMA ARCILLA, accused-appellants.

YNARES-SANTIAGO, J.: On April 20, 1985 at around 8:30 in the evening, Catalino Bellen, Arturo Abion, Teodoro Cas, Antonio Abion, Renato Abion, Jesus Lotera and Expedito Bonaobra were aboard their fishing boat Sagrada Familia tending to their fishing nets when bursts of gunfire from a high-powered automatic rifle shattered the air killing Catalino Bellen and Teodoro Cas while mortally wounding Arturo Abion. Renato Abion, Jesus Lotera and Expedito Bonaobra sustained serious gunshot wounds which too would have caused the deaths of Lotera and Bonaobra had it not been for the intervention of timely medical assistance. For the crime, accused Rustom Bermas y Betito and one John Doe were indicted for Multiple Murder with Multiple Frustrated Murder in an Information 1 alleging That on or about the 20th day of April 1985 at 8:30 o'clock in the evening, more or less, at the sea of Barangay Namanday, Municipality of Bacacay, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with evident premeditation, conspiring, confederating and helping one another, with treachery, taking advantage of nighttime, employing means to afford impunity, with the use of high powered firearms and with intent to kill, did then and there willfully, unlawfully, feloniously, suddenly and unexpectedly attack, fire and shoot with automatic firearms CATALINO BELLEN, ARTURO ABION, TEODORO CAS, ANTONIO ABION, RENATO ABION, JESUS LUTERA and EXPEDITO BONAOBRA while all the latter were on board their fishing boat, "Sagrada Familia", and tending their fishing net, thereby causing the instantaneous death of CATALINO BELLEN, ARTURO ABION, and TEODORO CAS, and serious wounds to ANTONIO ABION, RENATO ABION, JESUS LOTERA and EXPEDITO BONAOBRA, which injuries could have caused the subsequent death of the aforenamed four victims thereby accused performing all the direct acts of execution which could have produced the crime of consummated murder insofar as the latter named persons are concerned, but, nevertheless, did not produce it by reasons of timely and able medical assistance rendered to them.1wphi1.nt CONTRARY TO LAW. Upon arraignment, accused Rustom Bermas, assisted by counsel de parte, entered a plea of "Not guilty" to the crime charged. 2 During the pre-trial scheduled on June 5, 1985, the prosecution and the defense stipulated 1. That the defense admits the identity of the accused; 2. That the defense admits the death of Catalino Bellen, Arturo Abion and Teodoro Cas at Namanday, Bacacay, Albay; and that the cause of their deaths are gunshot wounds (only for the fact of death); 3. That the other names of the victims appearing in the information were also present during the incident who also sustained injuries as a result thereof;

4. That the accused has a brother by the name of Sgt. Bonifacio Bermas; The prosecution admitted: 1.) That the affidavits which are all contained in the records will be the basis of the testimonies, except for some details; 2. That the middle name of Jose Abion and the other Abions in the information is Barrameda; 3. That it was a certain P.C. Constable enlisted personnel Arcilla who had an altercation with Santiago Abion, Jr. which was in October 10; 4. That the accused is a Barangay Councilman of Barangay Liwan, Rapu-rapu, Province of Albay; and finally; 5. The prosecution admits that the accused is an employee of the Asian for Generation Resources. 3 During the course of the proceedings, the Assistant Provincial Fiscal moved to amend the Information claiming that the John Doe described therein strongly shows that said person was CIC Galma Arcilla of the 255th PC Company stationed at Cale, Tiwi, Albay. 4 The motion was granted by the trial court 5 which, however, stressed that it would be without jurisdiction to try Arcilla unless the quondam Minister of National Defense or the President of the Philippines waives jurisdiction to have the accused tried by a Military Tribunal and that they agree to let the civil courts try him. 6 A copy of the order together with the records was sent to the Judge Advocate General's Office (JAGO) for appropriate action. 7 Trial, meanwhile, proceeded with regard to accused Bermas. On September 25, 1986 8 the court a quo rendered judgment, the dispositive portion of which reads: WHEREFORE, and finding the accused RUSTOM BERMAS of Barangay Liguan, Rapu-Rapu, Albay GUILTY beyond reasonable doubt of the crime of MURDER WITH MULTIPLE FRUSTRATED MURDER and ATTEMPTED MURDER, as charged and as found during the trial, after a painstaking scrutiny of all the evidences presented, and considering all the attendant circumstances, this court hereby sentences said accused to suffer the penalty of RECLUSION PERPETUA, with all the accessories of the law. Said accused is further ordered to pay jointly and severally with whoever is found guilty as his co-principal in the commission of the crime, the following: To the heirs of the late CATALINO BELLEN, namely Lydia Bellen, widow, and children Mary Rose, Rey, Zenaida and Queenie: 1. The sum of THIRTY THOUSAND (P30,000.00) PESOS for the death of Catalino Bellen; 2. The sum of ONE HUNDRED EIGHTY TWO THOUSAND SEVEN HUNDRED FIFTY (P182,750.00) PESOS consisting of the future earnings which the heirs mentioned were deprived of had the victim lived up to the age of sixty (60) years; 3. The sum of SEVEN THOUSAND (P7,000.00) PESOS for funeral wake and burial expenses;

4. The sum of TWENTY FIVE THOUSAND (P25,000.00) PESOS for and as moral damages. To the heirs of the late TEODORO CAS, namely: Antonia Cas, widow and children: Maria Veronica, Weldy and Honey Bee: 1. The sum of THIRTY THOUSAND (P30,000.00) PESOS for and as indemnity for the death of the victim; 2. The sum of ONE HUNDRED THIRTY NINE THOUSAND EIGHT HUNDRED THIRTY SIX PESOS AND SEVENTY FIVE CENTAVOS (P139,836.75) consisting of the future earnings which the heirs mentioned were deprived of had the victim lived up to the age of sixty (60) years; 3. The sum of TWENTY FIVE THOUSAND (P25,000.00) PESOS for and as moral damages; 4. The sum of SIXTEEN THOUSAND SEVEN HUNDRED (P16,700.00) for and as funeral wake and burial expenses; To the heirs of the late ARTURO ABION, namely Arsenia Abion, widow and the children: Renato, Armando, Antonio, Nestor and Rebecca: 1. The sum of THIRTY THOUSAND (P30,000.00) PESOS for and as civil indemnity for the death of Arturo Abion; 2. The sum of TWENTY FIVE THOUSAND (P25,000.00) PESOS for and as moral damages; 3. The sum of NINETY ONE THOUSAND TWO HUNDRED FIFTY (P91,250.00) PESOS consisting of the future earnings which the heirs mentioned were deprived of had the victim lived up to the age of sixty (60) years; 4. The sum of NINE THOUSAND (P9,000.00) PESOS for and as wake, funeral and burial expenses; To EXPEDITO BONAOBRA, the following: 1. The sum of TWO THOUSAND (P2,000.00) PESOS for and as medical and hospitalization expenses; 2. The sum of FIVE THOUSAND (P5,000.00) PESOS for and as moral damages; 3. The sum of FOUR THOUSAND FIVE HUNDRED (P4,500.00) PESOS for and as unrealized earnings during the period of his incapacity; To JESUS LOTERA, the following: 1. The sum of TWO THOUSAND (P2,000.00) PESOS for medical and hospitalization expenses;

2. The sum of FIVE THOUSAND (P5,000.00) PESOS for and as moral damages; 3. The sum of FOUR THOUSAND FIVE HUNDRED (P4,500.00) PESOS for unrealized earnings during the period of his incapacity; To ANTONIO ABION, the following: 1. The sum of ONE THOUSAND FIVE HUNDRED (P1,500.00) PESOS for and as medical and hospital expenses; 2. The sum of THREE THOUSAND (P3,000.00) PESOS for and moral damages; 3. The sum of THREE THOUSAND (P3,000.00) PESOS for and as unrealized earnings during the period of his incapacity. Proportionate cost against accused Rustom Bermas. SO ORDERED. 9 Meanwhile, the JAGO sent a letter to the trial court dated September 2, 1986 10 informing the latter that the waiver of military jurisdiction over the person and the case of accused Galma Arcilla as required under P.D. No. 1850, as amended, was no longer necessary as said accused had been discharged from military service effective August 15, 1986 per Special Order No. 150 dated August 28, 1986 issued by the General Headquarters of the New Armed Forces of the Philippines. 11 Considering that Arcilla was indicted together with Bermas with the amendment of the information identifying him as Bermas' co-accused and that custody over him was turned over to the trial court by the Philippine Constabulary, Region V Command, 12 he was thereafter arraigned and with the assistance of counsel entered a plea of "Not guilty." 13 During the pre-trial on October 3, 1986, the accused and the prosecution stipulated 1. That Galma Arcilla was once a member of the 255th Philippine Constabulary Company of the Armed Forces of the Philippines stationed at Cale, Tiwi, Albay; 2. That on April 20, 1985 he was still a member of the 255th PC Company; 3. That he knows Sgt. Rody Madrilejos, the Supply Officer of 255th PC Company stationed at Cale, Tiwi, Albay; and 4. That he knows his co-accused Rustom Bermas and a certain Expedito Bonaobra, Barangay Captain of Cawayan, Bacacay, Albay. 14 The case thereafter proceeded to trial. On November 20, 1989, the court a quo rendered judgment 15 against accused Arcilla, the dispositive portion of which reads: WHEREFORE, and finding the accused GALMA ARCILLA GUILTY beyond reasonable doubt of the crime of MULTIPLE MURDER WITH MULTIPLE FRUSTRATED MURDER, as charged and as found during the trial, after a painstaking scrutiny of all evidences presented, and considering all the attendant circumstances, this Court hereby sentences said accused to suffer the penalty of RECLUSION PERPETUA, with all the accessories of the law.

Said accused was further ordered to pay jointly and severally with Rustom Bermas, who was earlier found guilty of the charges and sentenced accordingly, the monetary awards set forth in the earlier Decision dated September 25, 1986. 16 Bermas and Arcilla thereafter interposed separate appeals seeking the reversal of the trial court's judgment. Bermas' appeal was docketed as G.R. No. 76414 while Arcilla's was docketed as G.R. No. 94312. Upon motion of the Solicitor General 17 the Court resolved to consolidate the appeals per its Resolution dated January 28, 1991. 18 Insisting on his innocence, accused-appellant Galma Arcilla alleges that I THE TRIAL COURT GRAVELY ERRED IN DECLARING THAT THE MASKED COMPANION OF RUSTOM BERMAS WHO FIRED THE ARMALITE RIFLE TO THE VICTIMS (sic) WHO WERE THEN AT SEA IN A BANCA (BASNIGAN) AT NAMANDAY, BACACAY, ALBAY WAS NO OTHER THAN ACCUSED GALMA ARCILLA, DESPITE THE FAILURE OF THE PROSECUTION WITNESSES TO IDENTIFY THAT GALMA ARCILLA IS THE SAME MAN. II THE TRIAL COURT GRAVELY ERRED IN DECLARING THAT THE ARMALITE RIFLE M-16 CAL. 5.56 OF THE ACCUSED WAS USED IN THE COMMISSION OF THE CRIME ON APRIL 20, 1985. III THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE DEATH THREAT MADE BY RUSTOM BERMAS, JAIME VIBAL AND ANGEL DAYTO ON APRIL 4, 1985 TO THE ABION FAMILY . . . IV THE TRIAL COURT GRAVELY ERRED IN GIVING WEIGHT TO THE BALLISTIC REPORT B-146-85, EXHIBIT K, [WHICH IS] FAVORABLE TO THE PROSECUTION, AND WITH DISFAVOR TO THE ACCUSED WHICH IS MARKED AS EXHIBIT 2 AND 2-A. V THE TRIAL COURT GRAVELY ERRED IN NOT GIVING WEIGHT TO THE OPEN COURT TESTIMONY OF PROSECUTION WITNESS SGT. RUDY MADRILEJOS THAT HE SEIZED AND GOT THE ARMALITE RIFLE M-16 CAL. 5.56 OF THE ACCUSED FROM THE POSSESSION OF SGT. NONITO LODOR. VI THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE TESTIMONY OF [THE] PROSECUTION REBUTTAL WITNESS THAT RUSTOM BERMAS HAS A BROTHER WHO IS A MILITARY MAN WITH AN ARMALITE AND RUBEN URSABIA

WHO IS ALSO A MILITARY MAN, [AND IS] A CONSTANT COMPANION OF RUSTOM BERMAS. VII THE TRIAL COURT GRAVELY ERRED IN STATING THAT "IT IS ON RECORD THAT CERTAIN INCIDENTS HAPPENED LEADING TO THE FAMILY OF THE ABIONS THE SUBJECT OF AN EXISTING BAD BLOOD WITH THE ACCUSED, GALMA ARCILLA . . . VIII THE TRIAL COURT GRAVELY ERRED IN STATING THAT "IT WAS CLEARLY SHOWN DURING AND IMMEDIATELY BEFORE THE COMMISSION OF THE CRIME WHEN THE ACCUSED HIMSELF ASKED THE INMATES OF THE BOAT, BASNIGAN, THAT THEY WERE LOOKING FOR SOMEBODY ELSE AND INQUIRING AS TO WHO OWNS THE BASNIGAN IN QUESTION: THAT WHEN HE WAS INFORMED THAT IT WAS OWNED BY JOSE ABION, THE OUTBURST OF BULLETS FROM THE ARMALITE OF THE ACCUSED COMMENCED INFLICTING DEATHS (sic) AND INJURIES UPON THE INMATES WHOSE NAMES WERE MENTIONED EARLIES (sic) IN THIS DECISION. IX THE TRIAL COURT ERRED IN STATING THAT THE THRUST OF THE DEFENSE OF THE ACCUSED IS AN ALIBI. 19 For his part, accused-appellant Rustom Bermas avers that I WITHOUT THE EVIDENCE AS AGAINST THE APPELLANT AND COMPANY TO THE EVIDENCE ON RECORD, THE TRIAL COURT FOUND REVENGE OR ILLFEELINGS AT THE ABION FAMILY AS THE MOTIVE BEHIND THE COMMISSION OF THE CRIME CHARGED. II THE TRIAL COURT ERRED IN ITS FINDING THAT THE APPELLANT WAS "A CONSPIRATOR, A PRINCIPAL BY INDISPENSABLE COOPERATION OR EVEN BY DIRECT PARTICIPATION. 20 On the other hand, the Solicitor General recommends that, save for the modifications that: a.] the accusedappellants be meted penalties of reclusion perpetua for each crime of murder and ten (10) years of Prision Mayor, as minimum to seventeen (17) years and four (4) months of Reclusion Temporal, as maximum, for each crime of frustrated murder and two (2) years, four (4) months and one (1) day of prision correcional, as minimum to eight (8) years of Prision Mayor, as maximum for attempted murder; and b.] the civil indemnity should be increased to fifty thousand (P50,000.00) pesos, the decisions dated September 25, 1986 and November 20, 1989 be affirmed in all other respects. 21 The prosecution's version of the incident with regard to accused Rustom Bermas's participation therein is summed thus by the Solicitor General in the People's brief 22 dated April 30, 1997: On April 20, 1985, around 8:30 p.m., at the sea of Namanday, Bacacay, Albay, Expedito Bonaobra, barangay captain of Cawayan, Bacacay, Albay, 23 together with Arturo Abion, Catalino Bellen, Renato Abion, Antonio Abion, Jesus Lotera and Teodoro Cas were on board a fishing boat (basnigan) named "Sagrada Familia" owned by Jose Abion 24 They intended to catch

fish that night and brought with them two (2) pressure gas lamps, a fishing net, rope and a pole used for the net. 25 Subsequently, a small paddled boat (sibiran or sibid-sibid) with two (2) men on board approached the fishing boat. The sibiran proceeded to the prow of the fishing boat and went around it four (4) times. 26 As the sibiran circled the fishing boat the second time, Bonaobra and Renato recognized appellant (Bermas) as the one paddling the sibiran. 27 he was wearing a denim (maong) jacket and denim pants. 28 Thereupon, Bonaobra ordered Arturo Abion to remove the shade of the gas lamp so that they could recognize appellant's campanion (sic). 29 After Arturo removed the shade (pantalla), the sibiran went around the fishing boat two (2) more times. 30 Those notwithstanding, appellant's (Bermas) companion could not be recognized because his face was covered with a mask and only his eyes could be seen. Appellant's (Bermas) companion was then wearing a blue long-sleeved jacket and maong pants. 31 Bonaobra asked appellant if he and his companion were going to catch fish (magpadarao man kamo). Appellant answered in the affirmative and told Bonaobra that they were looking for somebody. Appellant then asked Bonaobra who owned the fishing boat and Bonaobra informed him that Jose Abion owned it. Thereafter, appellant and his companion pretended to paddle away. When the sibiran was about seven (7) meters away from the fishing boat, appellant's companion fired his Armalite rifle at Bonaobra and his companions. They heard two (20) volleys fired at them. 32 They lay down but they could not avoid the attack. The fishing boat was hit and so was one of the pressure gas lamps. 33 After five (5) minutes, Arturo Abion, Renato's father, said that one of them must find a way to enable them to leave that place. Renato crawled towards the prow of the fishing boat and turned off the remaining pressure gas lamp. He then loosened the rope tied to the boat's anchor. After that Renato lost consciousness. 34 The fishing boat was carried away by the currents of the sea towards the shore of Galicia, Rapu-Rapu. Jose, Rudy and Santiago Abion found them the following morning. 35 Arturo Abion and Catalino Bellen were already dead while Antonio Abion, Renato Abion, Jesus Lotera and Bonaobra were seriously wounded. 36 The body of Teodoro Cas was missing. Rudy and Jose transferred those injured to a kumpit, a small basnigan or fishing boat run by motor while Santiago was left with the dead bodies of Arturo and Bellen. Rudy and Jose maneuvered the kumpit to Bacacay, Albay where they brought those injured to [the] Albay Provincial Hospital. 37 On their way to Bacacay, Albay, Jose asked Bonaobra who shot them and he answered that it was appellant (Bermas) and a companion. Upon their arrival at the shore of Bacacay, Albay, Rudy also asked Bonaobra who shot them. Bonaobra told him that they had been shot by appellant (Bermas) and a companion. 38 Santiago Abion brought the fishing boat to Sitio Cagbulacao where Station Commander Saliao took the bodies of Arturo and Bellen for autopsy. When Station Commander Saliao left, Santiago emptied the fishing boat of sea water. In the process, he found two (2) slugs inside the fishing boat, one already deformed and the other still round in shape. He took the slugs and gave it to his brother Jose five (5) days later. Jose in turn brought the two (2) slugs to the police station. The body of Teodoro Cas was found on April 23, 1895 (sic) in Guinangayan, Albay. 39 The autopsy conducted by Dr. Evelyn A. Amador, Municipal Health Officer, Bacacay, Albay, on the bodies of Arturo Abion, Catalino Bellen and Teodoro Cas revealed the following: Arturo Abion

Date, time and place of autopsy: April 22, 1985; 10:30 A.M., INP Compound, Bacacay, Albay. Findings: External: 1. Body with signs of decomposition Internal: 2. Wound, avulsed, macerated 21 x 10 cm. left lower lateral thigh shattering and fragmenting muscles nerves other tissues and bones in the area. Cause of death: Shock due to hemorrhage of wound, left lower lateral thigh. (Record, p. 8) Catalino Bellen Date, time and place of autopsy: April 22, 1985, 10:30 A.M., INP Compound, Bacacay, Albay Findings: External: 1. Body with signs of decomposition Internal: 2. Wound, gunshot mid forehead 1 x 1 cm., with contusion collar and brain tissues protruding, this wound also pierce[d] the frontal bone underneath the wound and bone, lacerated. 3. Wound, stabbed, approximately 6 cm. left lower back, with intestines protruding Cause of death: Brain injury/Hemorrhage secondary to stab wound (Record, p. 1) Teodoro Cas Date, time and place of autopsy: April 24, 1985, 6:00 A.M., INP, Bacacay Compound Findings:

External and Internal: Body bloated in decomposing stage, emitting a very foul smell. Right lateral and back of the head, scalp and skull avulsed. The brain tissues are absent. Cause of death: Severe brain injuries. (Record, p. 9) Dr. Cesar Ong Chua, resident physician at the Albay Provincial Hospital, Legaspi City treated the injuries of Bonaobra, Renato, Jesus and Antonio. The medical certificates he issued to these persons stated the following findings: Antonio Abion Gunshot wound macerated around 5 x 6 cm., P3rd Right leg, posterior aspect. multiple abrasion ranging from 2-4 cm., P3rd, right thigh, posterior aspect. Operations: Debridement and ligation of bleeder (Record, p. 218) Expedito Bonaobra Gunshot wound macerated wound, 4 x 6 cm. right shoulder fracture, acromias, right shoulder A-C separation, right shoulder. (Record, p. 214) Renato Abion Gunshot wound lacerated wound, 2 cm., 2 cm., lateral to the sternal border, 5th ICS, with skin blasting ranging from 0.5 to 1 cm. anterior chest. P.O. entry 2 cm., P3rd, left forearm, anterior aspect. P.O. exit 4 x 4 cm., P3rd, posterior-lateral aspect, left forearm.

 macerated wound 4 x 5 cm. bone deep and massive tissue injury, right hand dorsum. lacerated wound, 2 x 1 cm. (Record, p. 219) Jesus Lotera Gunshot wound point of entry 1cm. D3rd, lateral aspect, left thigh. point of exit 7 x 4 cm., D3rd, posterior aspect, left thigh lacerated wound 8 x 4 cm., P3d, left thigh, posterior aspect. Operations: Debridement and ligation of bleeders. (Record, p. 219) Dr. Chua testified that the injuries inflicted on Bonaobra, Antonio and Jesus would have caused their death without timely medical attention, while those inflicted on Renato would not have killed him even without timely medical intervention. 40 Vicente R. De Vera, a ballistician of the Philippine Constabulary Crime Laboratory Service, Camp Crame, Quezon City, declared that an examination of [the] Armalite rifle M16 with serial number 3265859 41 and two (2) fired bullets, recovered from the fishing boat marked as T and T1, shows that the bullets were fired from said rifle. 42 Sgt. Rudy Madrilejos, a supply sargeant of 255 PC Company Station at Calo, Tiwi, Albay, testified that a rifle caliber 5.56 mm m16 with serial number 3265859 had been issued to Galma Arcilla. 43 Santiago Abion testified that on October 13, 1984, he and his wife Nelly went to a public dance at Namanday, Bacacay, Albay. He saw appellant (Bermas), Arcilla and Ruben Ursabin drinking gin about five arms length away. 44 He and his wife went home at about 9:30 o'clock p.m. the following day, at apimd (sic) 2:00 o'clock in the afternoon, Daniel Abion went to Santiago's house Daniel warned Santiago that he was being suspected by Arcilla as the person who had mauled him. However, Daniel admitted that he was the one who mauled Arcilla after the latter had beaten up Leopoldo. 45 On October 15, 1984, Santiago went to the house of his brother Rudy. 46 Rudy was not there as he was selling fish. 47 Suddenly, six (6) armed men barged into Santiago's house and asked Nelly, who was then pregnant, the whereabouts of her husband. According to Santiago, he saw the armed men, because he peeped through the window of Rudy's house. He also recognized one of the armed as Ruben Ursabin. Santiago's wife, Nelly was so scared that she suffered a miscarriage. 48 On April 4, 1985, at around 8:30 o'clock p.m., Santiago bought cigarettes from the store of Asterio Bellen. On his way home, he saw appellant (Bermas), Angel Daybo and Jaime Sibal. He passed by his cousin's house. Salvador Abion called him and asked for a cigarette. Later

appellant (Bermas), Daybo and Sibal entered the house of Salvador. Appellant pounded his palm on the table, hit the wall, pointed his finger at Santiago and uttered "babalonan co an mga baraca pag oli co" (I will bring the baraca when I go home). "Baraca" is the appellation of the Abion family. 49 The People's account with regard to accused Galma Arcilla's participation in the incident, which was dubbed as the "Namanday Massacre," 50 is identical with the above-quoted factual narrative. Additionally, in the appellee's brief dated September 3, 1993, 51 the prosecution narrated . . . that sometime in October 1984, while appellant was drinking with Rustom Bermas, Ruben Ursabia and Angel Dayto inside the dance hall of Namanday, Bacacay, Albay, appellant was involved in a fistfight, where he boxed Leopoldo Abion on the chest. 52 When Leopoldo Abion's brother Daniel Abion, arrived, appellant went out of the dance hall. 53 Daniel Abion, however, was able to hit appellant on the face with a piece of wood. 54 Santiago Abion corroborated the testimony of Renato Abion that on October 13, 1984, at about 8:30 p.m., appellant, Rustom Bermas and Ruben Ursabia were drinking inside the dance hall of Namanday, Bacacay, Albay. 55 Santiago Abion further testified that: a) on October 14, 1984, at about 2:00 p.m., Ruben Ursabia and five other armed persons who were looking for him (Santiago Abion) went to his house, but they did not find him there because he was at the nearby house of his brother; b) on April 4, 1985, at about 8:30 p.m., when Santiago Abion was at the door of the house of his cousin, Salvador Abion, Rustom Bermas pounded on a table and said to Santiago Abion "Balunon co an mga baraka sa pag-uli co" (I will bring home the baraka), the baraka being the death threat to the Abion family; 56 and c) a day after the "Namanday Massacre", or on April 21, 1985, Santiago Abion found two (2) slugs inside the fishing boat, "Sagrada Familia", which were submitted to the police authorities for examination. 57 xxx xxx xxx Sgt. Rudy Madrilejos testified that on February 14, 1985, he issued to appellant an Armalite rifle, which is particularly described as rifle caliber 5.56 MM M16 with Serial Number 3265859. 58 Sgt. Rudy Madrilejos further testified that when he was ordered by the Provincial headquarters of the Philippine Constabulary (PC) to bring back said Armalite rifle for ballistic examination, he got it from Sgt. Nonito Lodor on April 2, 22 or 23, 1985. 59 Cpl. Teodoro Berango testified that the investigation conducted by the military on the "Namanday Massacre" found appellant as the principal suspect of the crime. 60 Cpl. Berango then requested the Provincial Commander to recall the Armalite rifle issued to appellant. 61 In the course of the investigation, Cpl. Berango was informed that appellant and Rustom Bermas had a drinking spree on April 20, 1985 at Liguan, Rapu-Rapu, Albay, which is only two (2) kilometers away from Namanday, Bacacay, Albay. 62 Gracia Dagcel testified that sometime in April 1989, one Capt. Mapalo and other persons went to her house at Liguan, Rapu-Rapu, Albay to apprehend her for illegal possession of firearms; on that occasion appellant, then a constable in the Philippine Constabulary, wore a mask." 63 The accused-appellants, on the other hand, presented a contrasting picture. Accused-appellant Galma Arcilla insists, in sum, that he was some place else at the time of the commission of the crime.

He testified that he is a resident of Malilipot, Albay and was a member of the 255th PC Company stationed at Cale, Tiwi, Albay where he held the position of Assistant Detachment Commander of the Pamal Checkpoint at Tiwi. 64 As a member of the Armed Forces of the Philippines (AFP), he was issued an Armalite M-16, Cal. 5.56 automatic rifle 65 by the Philippine Constabulary (PC) through Sgt. Rudy Madrilejos. 66 At the time of the incident, his rifle was in the possession of Sgt. Nonito Lodor, Commander of the Intelligence Operations Post (IOP) Detachment at Capantagan, Tiwi, Albay 67 to whom he usually entrusts it whenever he goes home to see his family. 68 It was in the possession of Lodor on the said date because on April 17, 1985, he went home upon being informed by the uncle of his wife that his wife was sick 69 and stayed there up to April 24, 1985. 70 At the time of the commission of the felony on April 20, 1985 and at about 8:00 p.m., he was at his house in Santicon, San Antonio, Malilipot, Albay, drinking with his friends Benito Bobiles, Filoteo Bobiles, and Florencio Berchez who came to his house bringing with them three (3) round bottles of gin and chicken 71 to commemorate the death anniversary of Benito Bobiles' father. They celebrated the occasion at Arcilla's house instead of the Bobiles residence because Arcilla's wife was sick with flu and fever at that time and Arcilla could not leave because he had to tend to her as well as the household chores. 72 They started drinking at 6:00 p.m. and ended at 11:00 p.m. 73 Arcilla subsequently sent his brother-in-law to buy two (2) more bottles of gin after they consumed the three (3) brought by Benito, Filoteo and Florencio. 74 During the drinking session, the only times Arcilla and his companions went out were those times when they had to attend to their personal needs. 75 After the drinking session ended at 11:00 p.m., Arcilla's visitors went home while Arcilla himself never went out after they finished drinking because he went to bed. 76 Rustom Bermas, who is employed as a "spotter" working eight-hour shifts at a local mining firm and a councilman of Barangay Liguan 77 had a similar story to tell. As gleaned from his testimony and that of his co-witnesses Manuel Balbastro, Vicente Bonaobra and Jose Belir, on April 20, 1984, he was already working at 7:00 a.m. having reported for work at 6:00 a.m. 78 At the end of his work shift, he and his co-workers dispersed. 79 Outside the workplace, he met with Manuel Balbastro, Vicente Bonaobra, Nestor Semeniano and Jose Belir. 80 Upon meeting, the group decided to drink 81 with each of them initially pitching in to buy liquor. 82 They started drinking at past 5:00 p.m. 83 at Bermas' house. 84 They left Bermas' house at past 7:00 p.m. after consuming two (2) bottles of gin 85 and proceeded to the store of Solano Mecaller where they stayed up to 9:00 p.m. 86 At the Mecaller store, they consumed one (1) flat bottle (lapad) of Andy Player whisky. 87 From the Mecaller store, they proceeded to a boat or sampan which was docked at the pantalan or pier 88 where they consumed one (1) "long neck" of Andy Player whisky. 89 While they were at the sampan nobody went out to buy liquor because they bought what they consumed at the Mecaller store. 90 They stayed there up to past 1:00 a.m. after which they parted ways. 91 In fine, accused-appellant Galma Arcilla insists he is innocent because: 1.] none of the twelve (12) prosecution witnesses identified him as the masked man who fired at the victims; 2.] the automatic rifle used in the felony is not the firearm issued to him; 3.] he was not in possession of the rifle at the time of the commission of the crime; 4.] Rustom Bermas together with Jaime Vibal and Angel Dayto threatened the Abion Family with death before the commission of the crime; 5.] Rustom Bermas has a brother who is a member of the PC as well as a constant companion who are both PC soldiers similarly armed with automatic Armalite rifles and such firearms could have been the ones used by Bermas and his masked companion in the perpetration of the felony. We disagree. That indeed the prosecution witnesses may not have identified the masked man who fired the automatic rifle at the victims is of no moment. Well-settled is the rule that direct evidence of the commission of the crime is not

the only matrix whence a trial court may draw its conclusions and findings of guilt. 92 The evidence is replete with enough proven details to sustain the guilt of accused-appellant Galma Arcilla at the very least on the basis of circumstantial evidence. The totality of such evidence would be sufficient 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 these circumstances is such as to warrant a finding of guilt beyond reasonable doubt. 93 A judgment of conviction based on circumstantial evidence can be sustained when the circumstances proven form an unbroken chain which leads to a fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the malefactor. These circumstances proven must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilt. 94 Assaying the facts against the foregoing legal yardsticks, We defer to exhaustive findings of the trial court which pointedly observed that: It is on record that certain incidents happened leading to the family of the Abions the subject of an existing bad blood with the accused, Galma Arcilla, viz: a) A fist fight during a dance at Namanday on October 13, 1985 where accused Galma Arcilla was the aggressor and Leopoldo Abion was subjected to fist blows by him hitting the latter on his chest, this writhing in pain and sitting on a corner of the dance hall at Namanday when moments later, the brother of Leopoldo, Daniel Abion, arrived and hit Galma Arcilla with a piece of wood; thus, an even situation transpired that accused Galma Arcilla kept on looking for an opportunity of revenge against the Abions. After Daniel left, Rustom Bermas, the usual confederate and companion of the accused, arrived for the purpose of getting even with the Abions, but luckily nothing happened because Daniel had left already; b) The apparent show of bad blood with the Abions when on October 14, 1985, Galma Arcilla was with a group of men forced open the window of the house of Santiago Abion with the use of the tip of a gun, looking for the latter, thus his wife got scared and was hospitalized. This incident was reported to the PC-INP of Bacacay, Albay, showing the abuses of these men in uniform including the accused in this case; c) The accused, being a PC enlisted man and with authority to possess firearm, a healthy and well-built fellow in the prime of his life, will never allow himself to be outdone and controlled by anybody, such as this simple family of fishermen of the same barangay as the accused; d) At the precise moment of the multiple killing and frustrated murder with the use of an Armalite rifle, the accused availing of the mantle of darkness, masking himself beyond recognition and looking for his prey, the family with whom he entertained rancor and grudge for the purpose of revenge, thus accused himself, before firing, asserted for himself that indeed the subject of his prey the Abions were there, thus the moment of truth happened. The accused made manifest that they were looking for someone else and asked for the owner of the "basnigan"; that when informed that the same is owned by Jose Abion, the family they were looking for, without delay, the burst of fire was made upon the helpless fishermen consisting mostly of the persons coming from the said Abion clan, leading to the multiple killing of three

men, namely Catalino Bellen, Arturo Abion and Teodoro Cas as shown by their respective autopsy reports, Exhibits "F," "G, and "H," and injuries to four persons, namely Antonio Abion, Jesus Lotera, Renato Abion and Expedito Bonaobra where all were medically attended to as shown by their respective medical certificates, Exhibits "Q," "R," "P" and "O''. The treacherous killing of the three victims and four who were seriously injured are indeed the physical evidence constituting this case. Physical evidence is the highest order which speaks more eloquently than all witnesses put together, Pp. v. Bardaje, 99 SCRA 3881; Pp. v. Caudillo, GR 45266, Nov. 24, 1988. In all these incidents, the two accused were always seen together. No iota of doubt prevails that the same masked man during the night of April 20, 1984, the person who fired the armalite rifle was no other than Galma Arcilla, the owner of the armalite ballistically examined, a trained sharpshooter being a member of the PC Command, responsible for the commission of the crime of murder charged. The Court noted that the maximum efficiency of the result when the volley of fire coming from accused's armalite rifle when fired was no doubt due to his efficiency in handling guns, being properly oriented in the use of his rifle as a PC enlisted man, which accused himself admitted in his testimonies. This is proven by the fact that for his volley of fire made during the commission of the crime, it resulted to three deaths and four seriously injured. The ballistician, Vicente de Vera, Chief Ballistician of the PC-INP, clearly testified that the two bullet slugs subjected for ballistic examination were indeed fired from no other armalite rifle, except the M-16 rifle, Caliber .223 with serial number 3265859, the very weapon issued to Galma Arcilla, as shown by the records of the PC and specifically testified to by Sgt. Rodolfo Madrilejos. The gun was issued to Galma Arcilla as testified to by Sgt. Despabiladeras and Sgt. Madrilejos as supported by the records of the office. From the time the gun in question was placed in his custody for purposes of the ballistic examination, the same was well handled, kept and taken care of until the result was released. He took the gun and kept it without anybody having access to it until it was delivered to Col. Averilla. Moreover, Sgt. Despabiladeras, custodian of the rifle, testified that replacement of the parts of the gun could not have been made while the same was in his custody. Furthermore, he testified clearly that the specimens in question were taken care of carefully until it was delivered to Col. Averilla for ballistic examination. It should be noted that there was no other suspect to the supposed killing, thus there was no evidence shown by the accused that other persons were interested in the suppression of evidence or passing the buck to him as a scapegoat to the perpetration of the heinous offense charged. Sgt. Rodolfo Madrilejos emphatically declared that Armalite rifle M-16, Serial No. 3265859 is the very rifle as a whole issued to the accused and the same parts are all intact; that the gun was never fired after retrieved and taken from Sgt. Lodor. And furthermore, the ammunitions which the accused alleged to have been kept in a locker were never produced when demanded; the pretext of an alleged encounter that happened in Bantayan, Tabaco, where these ammunitions were used appears a hoax for said encounter never existed as a fact for there were no dissident

harassments in the area in the year 1984. All these facts weakened the defense of the accused more specifically as to its credibility. On the date in question, April 20, 1984, the accused Galma Arcilla, then a PC enlisted man, was on leave as admitted by him. An alibi was presented that he was in his barangay, San Antonio, Santicon, Malilipot, Albay, instead of Namanday, Bacacay, Albay where the crime was committed. No impossibility for him to go to Namanday was shown on the records and more so because alibi is a weak offense.1wphi1.nt Emphatic denial of accused Galma Arcilla on his being at the place of the commission of the offense at Namanday was made and putting as alibi that he was at San Antonio, Santicon, Malilipot, Albay, attending to his sick wife. This fact was vouched and testified to by his neighbor friends, Benito Bobiles and Florentino Berchez, likewise residents of San Antonio, Santicon, Malilipot, Albay. The accused denied the charge, claiming that on the 20th day of April 1985, he was at his headquarters and that specifically from 6:00 o'clock to 11:00 o'clock in the evening of said date, he was hosting a drinking party at his house with several friends, such that it would be impossible for him to be at Namanday, Bacacay, Albay. In fine, the defense is alibi, not being at the place of the commission of the offense but at such other place. He has not shown proofs that it would be physically impossible for him to be at the place of Namanday where the offense was committed. Namanday, Bacacay, Albay and San Antonio, Santicon, Malilipot, Albay could be traveled by a motorboat easily within a few hours, if need be. His claim to be at the headquarters on that date is belied by the record for he left the camp on April 17, 1985 and only to return to his place of work at Cale, Tiwi, Albay, so that on April 20, 1985, he was then set free to go to any place of his own accord. He alleged that he could not have inflicted such heinous crime as charged because there was no motive nor existing misunderstanding between him and the victims. The records as shown above abound on the fact that an existing bad blood harbored by the accused Galma Arcilla against the family of the Abions were clearly shown and proven by the evidence. It was clearly shown during and immediately before the commission of the crime when the accused himself asked the inmates on the boat, a "basnigan," that they were looking for somebody else and inquiring further as to who owns the "basnigan" in question; that when he was informed that it was owned by Jose Abion, the outburst of bullets from the armalite of the accused commenced inflicting deaths (sic) and injuries upon the inmates whose names were mentioned earlier in this decision. As to the firearm in question, he denied that Armalite rifle M-16, Caliber .223 is not the gun issued to him. He alleged that Armalite Caliber 5.56 with a different serial number was the very rifle under his custody. This fact was belied by the testimony of the issuing officer and by the records that what was indeed issued to the accused Galma Arcilla, in this respect, is the former described gun, rather than Caliber 5.56. It is amazing to note that the accused, before leaving the camp on April 17, 1985, entrusted the gun in question to Sgt. Nonito Lodor, at the latter's house at Capantagan, Cale, Tiwi, Albay, rather than at the headquarters which is but a distance of about a few meters, more or less, to his place of work. The headquarters of the 255th PC Company where said rifle could have been kept and/or entrusted would be a safer place aside from it being secured and in consonance with military requirement. This was not well explained by the accused why instead of leaving said rifle at the proper office, the headquarters of the 255th PC Company, the same was entrusted to Sgt. Nonito Lodor, in the latter's house. Again, his leaving his armalite rifle to Sgt. Nonito Lodor in the latter's house with a distance of over five (5) kilometers from his detachment office in Capantagan, compared to the distance of

the 255th PC Command Headquarters in Cale, Tiwi, Albay, of only over 100 meters is a matter which the accused failed to explain to the satisfaction of the Court. Military regulations dictate that firearms as the gun in this instance should be placed more safely with the duly authorized enlisted men of the command in taking custody of the rifles in the headquarters, rather than entrusting it to anyone to be kept in a private house, as what the accused had done in this instance when he allegedly left the gun in the house of Sgt. Lodor. It is perplexing to note that per accused testimony, it was Sgt. Nonito Lodor himself who informed him for the first time that accused was a suspect in this crime and that the armalite rifle issued to him was the one involved during the shooting. If it is true, as alleged by Galma Arcilla, that same gun was deposited and was in the custody of Sgt. Lodor, the latter would not confront him as now testified to by accused. On the 375 ammunitions borne out by the records to have been issued to the accused, the latter was only able to return 191 of said ammunitions; thus, 184 were missing. He attributed the missing 184 ammunitions to an alleged encounter with dissidents at Bantayan, Tabaco, Albay, which was not borne out by the records of his command, nor supported by witnesses coming from the 255th PC Company as to the existence of said encounter with the dissidents. The accused at first, claimed that the 184 missing ammunitions were said to be left in a house and promised to return the same, but he failed to do so. The records also show that the said ammunitions were left in a locker, supposed to be returned to the issuing officer when required, but said accused failed to account for the same. Again, the version of the use of the ammunitions with an encounter with the dissidents is mysteriously put up. There is thus, therefore, a suspicion logical enough that the missing ammunitions were indeed used in the commission of the crime adverted to. The accused further maintained that some parts of the armalite rifle issued to him, such as the stock group and the handguard were replaced by other parts coming from a different armalite for the purpose of tampering the evidence leading to his involvement in the crime at issue. But he failed to show or present any person interested for that matter. Moreover, the same had been disproved by the officer entrusted with the custody of the armalite rifle, as well as its ammunitions when the same were recalled for ballistic examination. The claim that the barrel receiver group of the gun in question is replaced on the pretext of an alleged hole on his gun issued to him and a detachable red cloth attached to the tip of said firearm are matters hard to believe. Accused Galma could not pinpoint to anyone else responsible for the insertions and/or replacement of the stock group of his gun to the barrel receiver of another, if only to implicate him of the crime. This defense is elaborate, well orchestrated scheme and designed to exculpate an accused which is deserving of no credence, Pp. v. Magdaraog, GR-40988, April 15, 1988. Accused claimed that he could not commit such crime of which he is being charged because he is receiving sufficient salary as a PC enlisted man of P2,000.00 or even more per month, is beside the issue in this case. The Court cannot agree with this reasoning that because he is financially well-off, he could not have committed the crime of which he is present charged. He was evasive to mention the fact having gone to the place where the incident in question happened, such as in Namanday, Bacacay, Albay or Liguan, Rapu-Rapu, Albay, thus, testifying in his defense that his residence is in Sabang, Legazpi City, which, upon his marriage, he

transferred to San Antonio Santicon, Malilipot, Albay; that he had never gone to Liguan, RapuRapu, Albay, except once in 1982. This pretension was disproved by abundant evidence on the part of the prosecution that the accused had been seen before, during and after the incident in question at Liguan, Rapu-Rapu, Albay with his co-accused and other companions drinking liquor at the same place. He even led a raiding party for the purpose of serving a search warrant to the family of Gracia Estevez Dagcel. In all these pretentions, the Court ultimately found that the accused had committed abundant falsities in his claim to exculpate himself as shown by his perjured testimonies in Court under oath. It should be relevant to note that the person who actually was responsible in the firing was one of the same build, height and physic as Rustom Bermas, a man who was in "maong" pants but with a vest and a mask purposely made so as not to have himself identified. The same incident was repeated when the accused guided a raiding party for the purpose of serving a search warrant when he was again using the same mask and vest for himself, but later on unveiled himself to be identified as the present Galma Arcilla in this case. The saying goes that crime does not pay which, in this instance, may be relevant and worthwhile repeating with respect to the actuations of the accused hereof. He alleged that despite the party held in San Antonio Santicon, Malilipot, Albay in the afternoon of April 20, 1985 in memory of the death anniversary of Benito Bobiles' father who died many years ago and which was being held at the latter's house, accused transferred the venue of said party from Benito's residence to his house, if only to accommodate him. This is far from the accepted norm prevailing in this locality as the Court may judicially notice. His pretentions not having gone to Liguan, Rapu-Rapu for a long, long time, except once in 1982 and no longer thereafter, his denial of having any relative in said place, his having not known the family of Rustom Bermas, his co-accused, were all belied by witnesses who testified to have seen him in Liguan many times, as well as Solomon Arcilla being a close relative of his in Liguan and that most of the time, he was with Rustom Bermas, his co-accused, before, during and after the commission of the crime in question. Gracia Estevez Dagcel belied most of the allegations of the accused as follows: On the denial of Galma Arcilla having not gone to Liguan, Rapu-Rapu, Albay, this witness categorically declared that accused was seen many times in 1989 in Liguan and that he even went to her house where he was served and entertained by this witness to drink liquor together with his friends and companions. The accused denied having gone to Liguan during the service of the search warrant. However, this witness, Gracia Dagcel testified that accused indeed was there that the search warrant was served by him on a Friday and again the following day, a Saturday, a confrontation with accused was made when she blamed him for the search in this instance. The accused was seen in Liguan on several occasions with Ruben Ursabia conducting the search of a gun allegedly owned by the husband of Gracia. That on such occasion, the accused was with other military men, including Capt. Romeo Mapalo, conducting the search, and Galma Arcilla was again wearing his mask with a hood for purposes of avoiding recognition for himself, but he was recognized on that occasion. Accused disclaiming any participation in the search application and its issuance are belied by abundant evidence, such as exhibits "X" and "Y-1", his application for the search warrant, Exhibit "Z", his affidavit supporting the application, Exhibits "BB" and "BB-1", the search warrant itself where the accused was a witness, Exhibits "CC" and "CC-1" to "CC-19", reflecting the accused telling lies to the Court of his alleged non-participation to the proceedings, and

Exhibits "DD", "DD-1" to "DD-3", a group picture depicting accused, Galma Arcilla, with other men in Liguan, Rapu-Rapu, Albay. Accused's pretentions in the sur-rebuttal by presenting his witness in the person of the Provincial Warden with whom he was supposed to be in custody as a detention prisoner were shown that Galma was indeed allowed to leave his detention upon the request of Capt. Mapalo for this particular incident. Instances when detention prisoners, as the accused herein, were allowed to leave detention, aside from the orders of the Court, were on requests of lawyers or military personnel for that matter. Moreover, accused's denial to be present in that dance at Namanday, Bacacay, Albay on October 13, 1985, was belied by the fact when he inflicted fistic blows upon Leopoldo Abion, and consequently that incident led to his being hit also by a piece of wood by Daniel Abion, brother of Leopoldo. In fine, all if not most of accused's pretentions in his defense were shattered by the foregoing elucidated facts as borne out by the records either directly or circumstantially the evidence abounds in support of a proof beyond reasonable doubt that the crime charged against Galma Arcilla, has certainly been proven as above discussed and shown. (Emphasis upplied) In addition to the foregoing, it is interesting to note that for all Arcilla's protestations that an M-16 Cal. 5.56 Armalite is different from an M-16 Cal. .223, the records disclose that there is, in fact, no difference between the two firearms. Particularly illuminating on this point is the following testimony of Vicente De Vera, Chief Ballistician of the PC Crime Laboratory at Camp Crame, Quezon City who declared that both .233 and 5.56 calibers refer to the same rifle despite repeated attempts of defense counsel to throw him off track: ATTY. REOLO: Q According to the evidence of the prosecution which is a memorandum receipt marked in evidence as Exhibit "A" the firearm issued to accused is 5.56 M-16 Armalite rifle with serial no. 3265859. My question is you have not performed microscopic examination and comparison on the 5.56 caliber M-16 Armalite with serial no. 3265859 because what you have examined thru (sic) your microscopic examination for comparison is .223 caliber M-16 Armalite rifle with serial no. 3265859 as shown in your ballistic report, is that correct? A That is not correct because 5.56 M-16 is in military parlance while .223 caliber is in commercial parlance. In other words they are the same. Q I am asking you whether you performed microscopic examination and comparison on 5.56 M-16 Armalite rifle and .223 caliber in your ballistic report. A Anyway 5.56 is not the subject matter in the case. I need not to make the necessary microscopic examination. Q What I am objecting to was the coming (sic) from 5.56 M-16 with the Serial No. 3265859. But you have not mentioned in ballistic report marked as Exhibit "K" that you have performed [a microscopic examination on an] 5.56 caliber M16 Armalite rifle, is that correct? A That is not correct to mention, that is [a] redundancy.

Q By the way, .223 caliber is the same as that of 5.56 caliber M-16 and the .223 is the commercial parlance. Will you not agree with me [that] there are several calibers like 5.56, 7.52 and .223 calibers? A I will not agree with you Ma'am. Q You will not agree. But there are different calibers of an Armalite M-16 those which I have mentioned, is it not? A 7.62 a different caliber. Q Is not that in a firearm or sidearm there are different calibers? A Yes, ma'am. Q We have the caliber .45, .38, .22 so that on the said firearm there is a difference in the caliber? A Insofar as the caliber in the firearm is concerned. M-16 has only one caliber either designated 5.56 caliber MM is the European version. In other words, .223 caliber and 5.56 MM are one at the same. 95 All these circumstances, evident from the recital of facts heretofore given, clearly yield a fair and reasonable conclusion pointing to herein accused-appellant Galma Arcilla as the malefactor who fired the high-powered automatic rifle at the victims. 96 Rustom Bermas, in professing his innocence, claims that: 1.] He has no motive to kill the victims because he has no quarrel with the Abion Family; and 2.] Conspiracy was not proven. These claims are, likewise, bereft of merit. Rustom Bernas' pretext that he has not ill motive to kill the victims pales into insignificance vis-a-vis his positive identification by prosecution witnesses Expedito Bonaobra and Renato Abion. The trial court which had the opportunity and directly hear the testimony of these two (2) prosecution witnesses, gave credence to their assertion that they saw Bermas paddling the sibid-sibid which approach the prow of their basnigan. 97 Time and again, this Court has stated that "[t]he credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and note their demeanor, conduct and attitude. Findings of the trial court on such matter are binding and conclusive on the appellate court, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted." 98 Appellants have shown no cogent reason to depart from this well-settled doctrine and this Courts finds none. Furthermore, it equally bears stressing that proof of ill-motive to commit the crime becomes irrelevant with the positive identification of the accused. Therefore, attributing to accused Bermas the motive of the vengeance is unnecessary where he was positively identified as the one of the malefactors. 99 Motives assumes significance only where there is no showing of who the perpetrators of the crime were. 100 Verily Positive identification where the categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matters prevails over a denial which, if not substantiated by a clear and convincing evidence is negative and self-serving evidence

undeserving of weight in law. They cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters. 101 Even , however, were this Court to delve into the motive which may have actuated the accused-appellant to commit such crimes, a circumspect scrutiny of the record will readily disclose abundant proof that accusedappellants had an axe to grind against the Abions despite Bermas' pretensions to the contrary. The existence of such a feud between the accused-appellants and the Abions is underscored by the fact that Bermas together with Jaime Vibal and Angel Dayto barged into Santiago Abion's house where he pounded the table, hit the wall and pointed his finger at Santiago uttering the threat "Babalonan co an mga baraca pag oli co." 102 The threat came to fruition several days later on that fateful night when the victims were mercilessly strafed with an Armalite rifle by Arcilla while they were on board their basnigan. In an attempt to undetermined the cause of the prosecution and to exculpate himself, accused Bermas further insist that "his paddling of the banca to and from the scene of the incident is insufficient proof conspiracy." 103 The paucity of the argument is at once evident. In conspiracy, direct proof of a previous agreement to commit a crime is not necessary. 104 It may be deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of the accused themselves when such point to a joint purpose and designs, concerted action and community of interest. 105 The records clearly bear out that with the armed and hooded Arcilla on board, Bermas maneuvered their sibid-sibid up close to the victims' basnigan. He watched in stolid silence, nary raising a whimper of protest even when Arcilla commenced firing at the victims. After the carnage, he calmly paddled the banca away from the crime scene. Given such peculiar facts obtaining in this case, Bermas' paddling of the sibiran to and from the scene of the crime, on the contrary, underscores his community of designs, interest and purpose in the perpetration of the felonies. Apparent then from the foregoing facts is the unity of purpose and designs in the execution of the unlawful act. 106 Where, as in this case, conspiracy is shown, the precise modality or extent of participation of each accused becomes secondary and the act of one may be imputed to all the conspirators. 107 In other words, a person found in a conspiracy with the actual perpetrator of the crime by performing specific acts with such closeness and coordination as the one who executed the criminal act is equally guilty as the latter 108 because in the eyes of the law, each conspirator is a co-principal and is equally guilty with the other members of the plot. 109 In their defense, both accused-appellant interposed alibi. No jurisprudence in criminal law is more settled than that alibi is the weakest of all defense for it is easy to contrive and difficult to disprove and for which reason it is generally rejected. 110 Viewed against the factual backdrop of the case, accused-appellants' defense of alibi easily crumbles under the weight of the evidence arrayed against them. With regard to the offenses committed, accused-appellants have been convicted of multiple murder with multiple frustrated murder. As alleged in the Information, the perpetration of the felonies was qualified by treachery and evident premeditation. For alevosia to qualify the crime to murder, it must be shown that: a] the malefactor employed such means, method or manner of execution as to ensure his or her safety from the defensive or retaliatory acts of the victim; and b] the said means, method and manner of execution was deliberately adopted. 111 Treachery exists when any of the crimes against persons is committed with the employment of means, methods or forms that tend directly and especially to insure its execution, such that the offender faces no risk that may arise from the defense which the offended party might make. 112 The essence of treachery is the swift and unexpected attack on an unsuspecting and unarmed victim who does not give the slightest provocation. 113 In the case at bench, the concurrence of the foregoing conditions are firmly anchored on the testimonial declarations of the prosecution witnesses Expedito Bonaobra and Renato Abion which are consistent with the autopsy findings of Dr. Evelyn A. Amador on the bodies of Arturo Abion, Catalino Bellen and Teodoro Cas as

well as the medical certificates issued by Dr. Cesar Ong Chua who treated the injuries sustained by Jesus Lotera, Antonio Abion, Expedito Benaobra and Renato Abion. It need not be overemphasized that the sudden and unanticipated volley of gunfire from a high-powered automatic rifle at the unsuspecting and unarmed victims coupled with other means resorted to which tended directly and especially to insure the success of the assault 114 underscores the existence of treachery. To reiterate, a deliberate, unexpected and sudden attack under circumstances which render the hapless victim unable and unprepared to defend himself or to afford him any chance to escape by reason of the suddenness and severity of the assault constitutes alevosia. 115 With regard to nighttime, it needs be stressed that the mere fact that the mere fact that the offense was committed at night will not suffice to sustain a finding a noctrunity. 116 By and of itself, nighttime is not an aggravating circumstances; it becomes so only when: 1.] it is specially sought by the offender; 2.] it was taken advantage of by him; or 3.] it facilitates the commission of the crime by insuring the offender's immunity from capture. 117 In the case at bench, other than the time of the occurrence of the felony, nothing else suggests that it was consciously resorted to by accused-appellants to facilitate the commission of the crime or that it was availed of for the purpose of impunity. 118 Indeed, the records show that the scene of the crime was well illuminated by two (2) pressure gas lamps which were on board the basnigan 119 and that Expedito Bonaobra, in fact, even ordered Arturo Abion to remove the shade (pantalla) of the gas lamp so that they could recognize accused Bermas' companion. 120 Be that as it may, nocturnity is absorbed in treachery and can not be appreciated as a generic aggravating circumstance. 121 Likewise abuse of superior strength is absorbed in treachery, hence, it can not be appreciated as an independent aggravating circumstance when treachery is already present. 122 The generic aggravating circumstance of disguise (disfraz) must, however, be appreciated in case at bench. There is disguise when some uses some device to prevent recognition. 123 Where a malefactor wore a mask to conceal his identity during the commission of the crime, as is what happened in this case where accused Arcilla wore a hood at that time he strafed the victims with his Armalite rifle, disguise is present and considered a generic aggravating circumstance. 124 While this Court is convinced that treachery attended the commission of the felonies, evident premeditation has not been proven. It has been stated time and again in a litany of cases that for this circumstance to be appreciated, the following elements must be clearly proved as the commission of the crime itself, namely: a.] the time when the offender decided to commit the crime; b.] an act manifestly indicating that he clung to his determination to commit it; and c.] a sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act and for his conscience to overcome the resolution of his will had he desired to hearken to its warning. 125 In the case at bench, there has been no showing that prior to the commission of the offenses, the accused-appellants resolved to kill the victims nor was there proof that their acts were the result of a cold and dispassionate calculation of their part. Absent such a showing, evident premeditation can not be appreciated against them. 126 With regard to the number of crimes committed, the Solicitor General contends that the trial court erred in convicting the accused-appellants of the complex crime of multiple murder and multiple frustrated murder and asserts that the killing of Catalino Bellen, Arturo Abion and Teodoro Cas as well as the shooting of Antonio Abion, Renato Abion, Jesus Loreta and Expedito Bonaobra are distinct and several acts. Thus, accusedappellants committed three (3) crimes of murder, three (3) crimes of frustrated murder and one (1) attempted murder in the case of Renato Abion. We agree.

Dr. Cesar Ong Chua who treated the survivors of the massacre declared that the nature and seriousness of the injuries sustained by Renato Abion would not have caused his death even without the medical attention. 127 The concept of a complex crime is defined in Article 48 of the Revised Penal Code which states that Art. 48. Penalty for complex crimes When a single act constitutes two or more grave or less grave felonies or when an offense is a necessary means of committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. (As amended by Act. No. 4000) The cases at bench clearly do not fall under the any of the two instances of complex crimes. The evidence on record, in fact, discloses the two (2) volleys were fired at the victims. 128 It can not be said, therefore, that there was a single act of firing a firearm although it is not disputed that one high-powered automatic rifle used in the crime. The recovery of two (2) slugs inside the fishing boat 129 further confirms the fact that several shots were fired. In People v. Vargas, Jr., 130 this Court held that: Evidently, this is a case where several persons were killed and others injured by successive shots. In the case of People v. Mones, 131 the Supreme Court found the accused guilty of three distinct and separate murders, each qualified by treachery, when said accused fired a series of shots killing three persons attending a school commencement exercise. Similarly, in the case of People v. Desierto, C.A. 45 O.G. 4542, it was ruled that several shots from a Thompson sub-machinegun causing several deaths, although caused by a single act of pressing the trigger, are considered several acts. Although each burst of shot was caused by one special mechanism the person firing it only has to keep pressing the trigger of the sub-machinegun, with his finger and it would fire continually. Hence, it is not the act of pressing the trigger which should be considered as producing several felonies, but the number of bullets which actually produced them (L.B. Reyes, The Revised Penal Code, pp. 559-560, Book I, 1971 Revised Ed.). . . Consequently, the accused should be held responsible for each of the resultant crimes instead of the complex crime of double murder under Article 48 of the Revised Penal Code. At the time of the commission of the offenses in question, the penalty of murder under Article 248 of the Revised Penal Code was Reclusion Temporal in its maximum period of death. No mitigating circumstance was proven, and insofar as accused-appellant Galma Arcilla is concerned, the aggravating circumstance of disguise shall have to be appreciated against him. Accordingly, the medium period of the penalty prescribed by law made be imposed on accused-appellant Rustom Bermas, while the maximum period thereof may be imposed on accused-appellant Galma Arcilla pursuant to Article 64 of the Revised Penal Code. Therefore, for the killing of Catalino Bellen, Arturo Abion and Teodoro Cas, the penalty of reclusion perpetua the medium of the prescribed penalty shall be imposed on Rustom Bermas. The penalty of death would have been the proper penalty of Galma Arcilla, but fortunately for him, Section 19(1) of Article III of the Constitution prohibited its imposition. Hence, only reclusion perpetua may be imposed. The penalty for frustrated murder was prision mayor maximum to reclusion temporal medium pursuant to Article 50 of the Revised Penal Code, while the penalty for attempted murder was prision correccional maximum to prision mayor medium per Article 51. The Indeterminate Sentence Law applies to both the frustrated and attempted murder cases. Counting one degree lower from the penalties prescribed by the Revised Penal Code for frustrated murder, the minimum term for the indeterminate sentence shall be within the range of prision correccional in its maximum period to prision mayor in its medium period which has a period ranging from four (4) years, two (2) moths and one (1) day to ten (100 years 132 while for attempted murder, the minimum term under the Indeterminate Sentence Law is arresto mayor in its maximum period to prision correccional in its medium period which ranges from four (4) moths and one (1) day to four (4) years and two (2) months. 133

Considering the wide latitude of discretions given the courts to fix the minimum term of the indeterminate sentence anywhere within the range provided by the law 134 vis-a-vis the peculiar facts prevailing in the case at bench, the penalty for each frustrated murder is set at four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to twelve (12) years and one (1) of reclusion temporal, as maximum; and for the attempted murder, four (4) moths and one (1) day of prision correccional, as maximum. We find the lower court's award of moral damages reasonable under the circumstances bearing in mind that such damages, which include physical suffering and mental anguish, may be recovered in criminal offenses resulting in physical injuries or the victim's death, as in this case. 135 We, likewise, see no reason to disturb the trial court's award of damages for the loss of earning capacity by the victims. The fact that the prosecution did not present documentary evidence to support the claim for damages for loss of earning capacity of the victims does not preclude recovery of the said damages. 136 The testimonies of the deceased's wives as well as the surviving victims themselves sufficiently establishes the bases for making such award. The life expectancies of each deceased victim was, however, not correctly computed as they were arbitrarily based on sixty (60) years. The records shows that at the time of his death, Catalino Bellen was thirty (30) years old, 137 Teodoro Cas was thirty-seven (37) 138 while Arturo Abion was forty-five (45). 139 In the absence of any clear showing as to how much they were actually earnings, the trial court pegged their earning capacities at Fifty Pesos (P50.00) a day which would amount to Eighteen Thousand per annum. Hence, in accordance with the American Expectancy Table of Mortality adopted in several cases, 140 the loss of their earnings capacities should be computed using the following formula: gross less living net earning capacity (x) = life expectancy x annual expenses income (50% of gross annual income) Catalino Bellen x = 2(80-30) x [18,000.00-9,000.00] 3 = 33.33 x 9,000.00 = P299,970.00 Teodoro Cas x = 2(80-37) x [18,000.00-9,000.00] 3 = 28.67 x 9,000.00 = P258,030.00 Arturo Abion x = 2(80-45) x [18,000.00-9,000.00] 3 = 23.33 x 9,000.00

= P209,970.00 The awards made to the surviving victims namely, Expedito Bonaobra who was forty-two (42) years old, 141 Antonio Abion, who was thirteen (13), 142 Jesus Lotera, twenty-four (24) 143 and Renato Abion, eighteen (18), 144 are reasonable given the prevailing facts of the case and will not be disturbed. However, the civil indemnity awarded for the death of the three victims should be increased to P50,000.00 consistent with the controlling case law. 145 WHEREFORE, with the modification that 1.] The civil indemnity awarded to the heirs of the victims be increased to P50,000.00 consistent with the current jurisprudence; 2.] The accused-appellant are hereby sentenced to suffer: (a) the penalty of Reclusion Perpetua for each of the three (3) crimes of murder for the killing of Catalino Bellen, Arturo Abion and Teodoro Cas; (b) Four (4) years, Two (2) Months and One (1) Day of Prision Correccional, as minimum, to Twelve (12) Years and One (1) day of Reclusion Temporal, as maximum, for each of the three (3) crimes of frustrated murder for the shooting of Antonio Abion, Jesus Lotera and Expedito Bonaobra; and (c) Four (4) months and One (1) day of Arresto Mayor, as minimum, to Six (6) years and One (1) day of Prision Mayor, as maximum, for attempted murder for the shooting of Renato Abion; 3.] The award for loss of earning capacity of the three deceased victims be reduced to (a) P299,970.00 for Catalino Bellen; (b) 258,030.00 for Teodoro Cas; and P209,970.00 for Arturo Abion; the challenged judgments are hereby AFFIRMED in all other respects. SO ORDERED.1wphi1.nt Davide, Jr., C.J. Melo, Kapunan and Pardo, JJ., concur.

G.R. No. 130612 May 11, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDINO DOMANTAY, @ "JUNIOR OTOT," accused-appellant. MENDOZA, J.: This case is here on appeal from the decision 1 of the Regional Trial Court of Dagupan City (Branch 57), finding accused-appellant guilty of rape with homicide and sentencing him to death, and to indemnify the heirs of the victim in the amount of P480,000.00, and to pay the costs. The facts hark back to the afternoon of October 17, 1996, at around 4 o'clock, when the body of six-year old Jennifer Domantay was found sprawled amidst a bamboo grove in Guilig, Malasiqui, Pangasinan. The child's body bore several stab wounds. Jennifer had been missing since lunch time. The medical examination conducted the following day by Dr. Ma. Fe Leticia Macaranas, the rural health physician of Malasiqui, showed that Jennifer died of multiple organ failure and hypovolemic shock secondary to 38 stab wounds at the back. Dr. Macaranas found no lacerations or signs of inflammation of the outer and inner labia and the vaginal walls of the victim's genitalia, although the vaginal canal easily admitted the little finger with minimal resistance. Noting possible commission of acts of lasciviousness, Dr. Macaranas recommended an autopsy by a medico-legal expert of the NBI. 2 The investigation by the Malasiqui police pointed to accused-appellant Bernardino Domantay, a cousin of the victim's grandfather, as the lone suspect in the gruesome crime. At around 6:30 in the evening of that day, police officers Montemayor, de la Cruz, and de Guzman of the Malasiqui Philippine National Police (PNP) picked up accused-appellant at the Malasiqui public market and took him to the police station where accusedappellant, upon questioning by SPO1 Antonio Espinoza, confessed to killing Jennifer Domantay. He likewise disclosed that at around 3:30 that afternoon, he had given the fatal weapon used, a bayonet, to Elsa and Jorge Casingal, his aunt and uncle respectively, in Poblacion Sur, Bayambang, Pangasinan. The next day, October 18, 1996, SPO1 Espinoza and another policeman took accused-appellant to Bayambang and recovered the bayonet from a tricycle belonging to the Casingal spouses. The police officers executed a receipt to evidence the confiscation of the weapon. 3 On the basis of the post-mortem findings of Dr. Macaranas, SPO4 Juan Carpizo, the Philippine National Police chief investigator at Malasiqui, filed, on October 21, 1996, a criminal complaint for murder against accusedappellant before the Municipal Trial Court (MTC) of Malasiqui. On October 25, 1996, Dr. Ronald Bandonill, medico-legal expert of the NBI, performed an autopsy on the embalmed body of Jennifer. The result of his examination of the victim's genitalia indicated that the child's hymen had been completely lacerated on the right side. Based on this finding, SPO4 Carpizo amended the criminal complaint against accused-appellant to rape with homicide. Subsequently, the following information was filed: 4 That on or about the 17th day of October, 1996, in the afternoon, in barangay Guilig, Municipality of Malasiqui, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and armed with a bayonnete, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with Jennifer Domantay, a minor of 6 years old against her will and consent, and on the same occasion, the said accused with intent to kill, then and there, wilfully, unlawfully and feloniously stab with the use of a bayonnete, the said Jennifer Domantay, inflicting upon her multiple stab wounds, which resulted to her death, to the damage and prejudice of her heirs.

At the trial, the prosecution presented seven witnesses, namely, Edward, Jiezl, Lorenzo, all surnamed Domantay, Joselito Mejia, Antonio Espinoza, Celso Manuel, and Dr. Ronald Bandonill, to establish its charge that accused-appellant had raped and killed Jennifer Domantay. Edward Domantay testified that in the morning of October 17, 1996, accused-appellant and his two brothers-inlaw, Jaime Caballero and Daudencio Macasaeb, had a round of drinks in front of the latter's house in Guilig, Malasiqui, Pangasinan. Edward Domantay said that he was in front of Macasaeb's house, tending to some pigeons in his yard. 5 After the group had consumed several bottles of San Miguel gin, accused-appellant gave money to Edward Domantay and asked him to buy two bottles of gin and a bottle of Sprite. 6 Edward said he joined the group and sat between Daudencio Macasaeb and accused-appellant. 7 Edward said that accusedappellant, who, apparently had one too many then, rolled up his shirt and said: "No diad Antipolo tan L[i]pa et walay massacre, diad Guilig wala, walay massacren kod dia, walay onakis-akis" ("In Antipolo and Lipa, there were massacres; here in Guilig, there will also be a massacre. I will massacre somebody here, and they will cry and cry"). Edward Domantay saw that tucked in the left side of accused-appellant's waistline was a bayonet without a cover handle. 8 It was not the first time that Edward had seen accused-appellant with the knife as the latter usually carried it with him. 9 Jiezl Domantay, 10, likewise testified. She said that, at about 2 o'clock in the afternoon on October 17, 1996, she and four other children were playing in front of their house in Guilig, Malasiqui, Pangasinan. Jiezl saw accused-appellant and Jennifer Domantay walking towards the bamboo grove of Amparo Domantay where Jennifer's body was later found. Accused-appellant was about two meters ahead of Jennifer. The bamboo grove was about 8 to 10 meters from the house of Jiezl Domantay. 10 Lorenzo Domantay, a relative of the victim, corroborated Jiezl's testimony that accused-appellant had gone to Amparo Domantay's bamboo grove in the afternoon of October 17, 1996. Lorenzo said that afternoon, on his way to his farm, he saw accused-appellant about 30 meters away, standing at the spot in the bamboo grove where Jennifer's body was later found. Accused-appellant appeared restless and worried as he kept looking around. However, as Lorenzo was in a hurry, he did not try to find out why accused-appellant appeared to be nervous. 11 Prosecution witness Joselito Mejia, a tricycle driver, said that, in the afternoon of October 17, 1996, he was about to take his lunch at home in Alacan, a neighboring barangay about half a kilometer from Guilig, when accused-appellant implored Mejia to take him to Malasiqui at once. Mejia told accused-appellant that he was going to take his lunch first, but the latter pleaded with him, saying they will not be gone for long. Mejia, therefore, agreed. Mejia noticed that accused-appellant was nervous and afraid. Accused-appellant later changed his mind. Instead of going to the town proper, he alighted near the Mormon's church, outside Malasiqui. 12 In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel who testified that, on separate occasions, accused-appellant had confessed to the brutal killing of Jennifer Domantay. SPO1 Espinoza testified that he investigated accused-appellant after the latter had been brought to the Malasiqui police station in the evening of October 17, 1996. Before he commenced his questioning, he apprised accusedappellant of his constitutional right to remain silent and to have competent and independent counsel, in English, which was later translated into Pangasinense. 13 According to SPO1 Espinoza, accused-appellant agreed to answer the questions of the investigator even in the absence of counsel and admitted killing the victim. Accused-appellant also disclosed the location of the bayonet he used in killing the victim. 14 On crossexamination, Espinoza admitted that at no time during the course of his questioning was accused-appellant assisted by counsel. Neither was accused-appellant's confession reduced in writing. 15 Espinoza's testimony was admitted by the trial court over the objection of the defense.

Celso Manuel, for his part, testified that he is a radio reporter of station DWPR, an AM station based in Dagupan City. He covers the third district of Pangasinan, including Malasiqui. Sometime in October 1996, an uncle of the victim came to Dagupan City and informed the station about Jennifer Domantay's case. 16 On October 23, 1996, Manuel went to Malasiqui to interview accused-appellant who was then detained in the municipal jail. He described what transpired during the interview thus: 17 PROS. QUINIT: Q Did you introduce yourself as a media practitioner? A Yes, sir. Q How did you introduce yourself to the accused? A I showed to Bernardino Domantay alias "Junior Otot" my I.D. card and I presented myself as a media practitioner with my tape recorder [in] my hand, sir. Q What was his reaction to your request for an interview? A He was willing to state what had happened, sir. Q What are those matters which you brought out in that interview with the accused Bernardino Domantay alias "Junior Otot"? A I asked him what was his purpose for human interest's sake as a reporter, why did he commit that alleged crime. And I asked also if he committed the crime and he answered "yes." That's it. xxx xxx xxx PROS. QUINIT: Q You mentioned about accused admitting to you on the commi[ssion] of the crime, how did you ask him that? A I asked him very politely. Q More or less what have you asked him on that particular matter? A I asked "Junior Otot," Bernardino Domantay, "Kung pinagsisisihan mo ba ang iyong ginawa?" "Opo" sabi niya, "Ibig mo bang sabihin Jun, ikaw ang pumatay kay Jennifer?", "Ako nga po" The [l]ast part of my interview, "Kung nakikinig ang mga magulang ni Jennifer, ano ang gusto mong iparating?", "kung gusto nilang makamtan ang hustisya ay tatanggapin ko". That is what he said, and I also asked Junior Otot, what was his purpose, and he said, it was about the boundary dispute, and he used that little girl in his revenge. On cross-examination, Manuel explained that the interview was conducted in the jail, about two to three meters away from the police station. An uncle of the victim was with him and the nearest policemen present were about two to three meters from him, including those who were in the radio room. 18 There was no lawyer present. Before interviewing accused-appellant, Manuel said he talked to the chief of police and asked permission to

interview accused-appellant. 19 On questioning by the court, Manuel said that it was the first time he had been called to testify regarding an interview he had conducted. 20 As in the case of the testimony of SPO1 Espinoza, the defense objected to the admission of Manuel's testimony, but the lower court allowed it. Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the victim on October 25, 1996, testified that Jennifer Domantay died as a result of the numerous stab wounds she sustained on her back, 21 the average depth of which was six inches. 22 He opined that the wounds were probably caused by a "pointed sharp-edged instrument." 23 He also noted on the aforehead, neck, and breast bone of the victim. 24 As for the results of the genital examination of the victim, Dr. Bandonill said he found that the laceration on the right side of the hymen was caused within 24 hours of her death. He added that the genital area showed signs of inflammation. 25 Pacifico Bulatao, the photographer who took the pictures of the scene of the crime and of the victim after the latter's body was brought to her parents' house, identified and authenticated the five pictures (Exhibits A, B, C, D, and E) offered by the prosecution. The defense then presented accused-appellant as its lone witness. Accused-appellant denied the allegation against him. He testified he is an uncle of Jennifer Domantay (he and her grandfather are cousins) and that he worked as a janitor at the Malasiqui Municipal Hall. He said that at around 1 o'clock in the afternoon of October 17, 1996, he was bathing his pigs outside in the house of his brother-in-law Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He confirmed that Daudencio was then having drinks in front of his (Macasaeb's) house. Accused-appellant claimed, however, that he did not join in the drinking and that it was Edward Domantay, whom the prosecution had presented as witness, and a certain Jaime Caballero who joined the party. He also claimed that it was he whom Macasaeb had requested to buy some more liquor, for which reason he gave money to Edward Domantay so that the latter could get two bottles of gin, a bottle of Sprite, and a pack of cigarettes. 26 He denied Edward Domantay's claim that he (accused-appellant) had raised his shirt to show a bayonet tucked in his waistline and that he had said he would massacre someone in Guilig. 27 Accused-appellant also confirmed that, at about 2 o'clock in the afternoon, he went to Alacan passing on the trail beside the bamboo grove of Amparo Domantay. But he said he did not know that Jennifer Domantay was following him. He further confirmed that in Alacan, he took a tricycle to Malasiqui. The tricycle was driven by Joselito Mejia. He said he alighted near the Mormon church, just outside of the town proper of Malasiqui to meet his brother. As his brother did not come, accused-appellant proceeded to town and reported for work. That night, while he was in the Malasiqui public market, he was picked up by three policemen and brought to the Malasiqui police station where he was interrogated by SPO1 Espinoza regarding the killing of Jennifer Domantay. He denied having owned to the killing of Jennifer Domantay to SPO1 Espinoza. He denied he had a grudge against the victim's parents because of a boundary dispute. 28 With respect to his extrajudicial confession to Celso Manuel, he admitted that he had been interviewed by the latter, but he denied that he ever admitted anything to the former. 29 As already stated, the trial court found accused-appellant guilty as charged. The dispositive portion of its decision reads: 30 WHEREFORE, in light of all the foregoing, the Court hereby finds the accused, Bernardino Domantay @ "Junior Otot" guilty beyond reasonable doubt with the crime of Rape with Homicide defined and penalized under Article 335 of the Revised Penal Code in relation and as amended by Republic Act No. 7659 and accordingly, the Court hereby sentences him to suffer the penalty of death by lethal injection, and to indemnify the heirs of the victim in the total amount of Four Hundred Eighty Thousand Pesos (P480,000.00), 31 and to pay the costs. SO ORDERED. In this appeal, accused-appellant alleges that: 32

I THE COURT A QUO ERRED IN APPRECIATING THE EXTRAJUDICIAL CONFESSION[S] MADE BY THE ACCUSED-APPELLANT. II THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. First. Accused-appellant contends that his alleged confessions to SPO1 Antonio Espinoza and Celso Manuel are inadmissible in evidence because they had been obtained in violation of Art. III, 12(1) of the Constitution and that, with these vital pieces of evidence excluded, the remaining proof of his alleged guilt, consisting of circumstantial evidence, is inadequate to establish his guilt beyond reasonable doubt. 33 Art. III, 12 of the Constitution in part provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx (3) Any confession or admission obtained in violation of this section or section 17 hereof shall be inadmissible in evidence. This provision applies to the stage of custodial investigation, that is, "when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect." 34 R.A. No. 7438 has extended the constitutional guarantee to situations in which an individual has not been formally arrested but has merely been "invited" for questioning. 35 Decisions 36 of this Court hold that for an extrajudicial confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. In the case at bar, when accused-appellant was brought to the Malasiqui police station in the evening of October 17, 1996, 37 he was already a suspect, in fact the only one, in the brutal slaying of Jennifer Domantay. He was, therefore, already under custodial investigation and the rights guaranteed in Art. III, 12(1) of the Constitution applied to him. SPO1 Espinoza narrated what transpired during accused-appellant's interrogation: 38 [I] interrogated Bernardino Domantay, prior to the interrogation conducted to him, I informed him of his constitutional right as follows; that he has the right to remain silent; that he has the right to a competent lawyer of his own choice and if he can not afford [a counsel] then he will be provided with one, and further informed [him] that all he will say will be reduced into writing and will be used the same in the proceedings of the case, but he told me that he will cooperate even in the absence of his counsel; that he admitted to me that he killed Jennifer Domantay, and he revealed also the weapon used [and] where he gave [it] to. But though he waived the assistance of counsel, the waiver was neither put in writing nor made in the presence of counsel. For this reason, the waiver is invalid and his confession is inadmissible. SPO1 Espinoza's testimony

on the alleged confession of accused-appellant should have been excluded by the trial court. So is the bayonet inadmissible in evidence, being, as it were, the "fruit of the poisonous tree." As explained in People v. Alicando:
39

. . . According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegal obtained evidence taints all evidence subsequently obtained. We agree with the Solicitor General, however, that accused-appellant's confession to the radio reporter, Celso Manuel, is admissible. In People v. Andan, 40 the accused in a rape with homicide case confessed to the crime during interviews with the media. In holding the confession admissible, despite the fact that the accused gave his answers without the assistance of counsel, this Court said: 41 [A]ppellant's [oral] confessions to the newsmen are not covered by Section 12(1) and (3) of Article III of the Constitution. The Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State. The prohibitions therein are primarily addressed to the State and its agents. Accused-appellant claims, however, that the atmosphere in the jail when he was interviewed was "tense and intimidating" and was similar to that which prevails in a custodial investigation. 42 We are not persuaded. Accused-appellant was interviewed while he was inside his cell. The interviewer stayed outside the cell and the only person besides him was an uncle of the victim. Accused-appellant could have refused to be interviewed, but instead, he agreed. He answered questions freely and spontaneously. According to Celso Manuel, he said he was willing to accept the consequences of his act. Celso Manuel admitted that there were indeed some police officers around because about two to three meters from the jail were the police station and the radio room. 43 We do not think the presence of the police officers exerted any undue pressure or influence on accused-appellant and coerced him into giving his confession. Accused-appellant contends that "it is . . . not altogether improbable for the police investigators to ask the police reporter (Manuel) to try to elicit some incriminating information from the accused." 44 This is pure conjecture. Although he testified that he had interviewed inmates before, there is no evidence to show that Celso was a police beat reporter. Even assuming that he was, it has not been shown that, in conducting the interview in question, his purpose was to elicit incriminating information from accused-appellant. To the contrary, the media are known to take an opposite stance against the government by exposing official wrongdoings. Indeed, there is no showing that the radio reporter was acting for the police or that the interview was conducted under circumstances where it is apparent that accused-appellant confessed to the killing our of fear. As already stated, the interview was conducted on October 23, 1996, 6 days after accused-appellant had already confessed to the killing to the police. Accused-appellant's extrajudicial confession is corroborated by evidence of corpus delicti, namely, the fact of death of Jennifer Domantay. In addition, the circumstantial evidence furnished by the other prosecution witnesses dovetails in material points with his confession. He was seen walking toward the bamboo grove, followed by the victim. Later, he was seen standing near the bamboo grove where the child's body was found. Rule 133 of the Revised Rules on Evidence provides:

3. Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. 4. Evidence necessary in treason cases. No person charged with treason shall be convicted unless on the testimony of two witnesses to the same overt act, or on confession in open court. Accused-appellant argues that it was improbable for a brutal killing to have been committed without the children who were playing about eight to ten meters from Amparo Domantay's grove, where the crime took place, having heard any commotion. 45 The contention has no merit. Accused-appellant could have covered the young child's mouth to prevent her from making any sound. In fact, Dr. Bandonill noted a five by two inch (5" x 2") contusion on the left side of the victim's forehead, which he said could have been caused by a hard blunt instrument or by impact as her head hit the ground. 46 The blow could have rendered her unconscious, thus precluding her from shouting or crying. Accused-appellant also contends that the testimony of Jiezl Domantay contradicts that of Lorenzo Domantay because while Jiezl said she had seen accused-appellant walking towards the bamboo grove, followed by the victim, at around 2 o'clock in the afternoon on October 17, 1996. Lorenzo said he saw accused-appellant standing near the bamboo grove at about the same time. These witnesses, however, did not testify concerning what they saw exactly the same time. What they told the court was what they had seen "at around" 2 o'clock in the afternoon. There could have been a between difference in time, however little it was, between the time Jiezl saw accused-appellant and the victim walking and the time Lorenzo saw accused-appellant near the place where the victim's body was later found. Far from contradicting each other, these witnesses confirmed what each had said each one saw. What is striking about their testimonies is that while Jiezl said she saw accused-appellant going toward the bamboo grove followed by the victim "at around" 2 o'clock in the afternoon on October 17, 1996, Lorenzo said he had seen accusedappellant near the bamboo grove "at around" that time. He described accused-appellant as nervous and worried. There is no reason to doubt the claim of these witnesses. Lorenzo is a relative of accused-appellant. There is no reason he would testified falsely against the latter. Jiezl, on the other hand, is also surnamed Domantay and could also be related to accused-appellant and has not been shown to have any reason to testify falsely against accused-appellant. At the time of the incident, she was only 10 years old. For the foregoing reasons, the Court is convinced of accused-appellant's guilt with respect to the killing of the child. It is clear that the prosecution has proven beyond reasonable doubt that accused-appellant is guilty of homicide. Art. 249 of the Revised Penal Code provides: Any person who, not falling within the provisions of Article 246 [parricide] shall kill another without the attendance of any of the circumstances enumerated in the next preceding article [murder], shall be deemed guilty of homicide and be punished by reclusion temporal. The killing was committed with the generic aggravating circumstance of abuse of superior strength. The record shows that the victim, Jennifer Domantay, was six years old at the time of the killing. She was a child of small build, 46" in height. 47 It is clear then that she could not have put up much of a defense against accusedappellant's assault, the latter being a fully grown man of 29 years. Indeed, the physical evidence supports a finding of abuse of superior strength: accused-appellant had a weapon, while the victim was not shown to have had any; there were 38 stab wounds; and all the knife wounds are located at the back of Jennifer's body. But we think the lower court erred in finding that the killing was committed with cruelty. 48 The trial court appears to have been led to this conclusion by the number of wounds inflicted on the victim. But the number of wounds is not a test for determining whether there was circumstance. 49 "The rest . . . is whether the accused deliberately and sadistically augmented the victim's suffering thus . . . there must be proof that the victim was

made to agonize before the [the accused] rendered the blow which snuffed out [her] life." 50 In this case, there is no such proof of cruelty. Dr. Bandonill testified that any of the major wounds on the victim's back could have caused her death as they penetrated her heart, lungs and liver, kidney and intestines. 51 Second. There is, however, no sufficient evidence to hold accused-appellant guilty of raping Jennifer Domantay. Art. 335. of the Revised Penal Code, as amended, in part provides: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprive of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. As the victim here was six years old, only carnal knowledge had to be proved to establish rape. Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily connections with a woman. 52 For this purpose, it is enough if there was even the slightest contact of the male sex organ with the labia of the victim's genitalia. 53 However, there must be proof, by direct or indirect evidence, of such contact. Dr. Ronald Bandonill's report on the genital examination he had performed on the deceased reads: 54 GENITAL EXAMINATION; showed a complete laceration of the right side of the hymen. The surrounding genital area shows signs of inflammation. xxx xxx xxx REMARKS: 1) Findings at the genital area indicate the probability of penetration of that area by a hard, rigid instrument. Hymenal laceration is not necessary to prove rape; 55 neither does its presence prove its commission. As held in People v. Ulili, 56 a medical certificate or the testimony of the physician is presented not to prove that the victim was raped but to show that the latter had lost her virginity. Consequently, standing alone, a physician's finding that the hymen of the alleged victim was lacerated does not prove rape. It is only when this is corroborated by other evidence proving carnal knowledge that rape may be deemed to have been established. 57 This conclusion is based on the medically accepted fact that a hymenal tear may be caused by objects other than the male sex organ 58 or may arise from other causes. 59 Dr. Bandonill himself admitted this. He testified that the right side of the victim's hymen had been completely lacerated while the surrounding genital area showed signs of inflammation. 60 He opined that the laceration had been inflicted within 24 hours of the victim's death and that the inflammation was due to a trauma in that area. 61 When asked by the private prosecutor whether the lacerations of the hymen could have been caused by the insertion of a male organ he said this was possible. But he also said when questioned by the defense that the lacerations could have been caused by something blunt other than the male organ. Thus, he testified: 62 PROS. F. QUINIT: Q Now, what might have caused the complete laceration of the right side of the hymen, doctor?

A Well, sir, if you look at my report there is a remark and it says there; findings at the genital area indicated the probability of penetration of that area by a hard rigid instrument. Q Could it have been caused by a human organ? A If the human male organ is erect, fully erect and hard then it is possible, sir. xxx xxx xxx ATTY. VALDEZ: Q In your remarks; finding at the genital area indicates the probability of penetration of that area by a hard rigid instrument, this may have also been caused by a dagger used in the killing of Jennifer Domantay is that correct? A Well, sir when I say hard rigid instrument it should not be sharp pointed and share rigid, it should be a hard bl[u]nt instrument. Q Do you consider a bolo a bl[u] instrument, or a dagger? A The dagger is a sharp rigid but it is not a bl[u]nt instrument, sir. Q This Genital Examination showed a complete laceration of the right side of the hymen, this may have been possibly caused by a dagger, is it not? A No, sir. I won't say that this would have been caused by a dagger, because a dagger would have made at its incision . . . not a laceration, sir. Q But this laceration may also have been caused by other factors other the human male organ, is that correct? A A hard bl[u]nt instrument, sir could show. Q My question is other than the human male organ? A Possible, sir. xxx xxx xxx COURT: Q You mentioned that the hymen was lacerated on the right side? A Yes, your Honor. Q And if there is a complete erection by a human organ is this possible that the laceration can only be on the right side of the hymen? A Yes, your Honor, its possible.

Q How about if the penetration was done by a finger, was it the same as the human organ? A Well, it defends on the size of the finger that penetrat[es] that organ, if the finger is small it could the superficial laceration, and if the finger is large then it is possible your honor. Q How about two fingers? A Possible, sir. To be sure, this Court has sustained a number of convictions for rape with homicide based on purely circumstantial evidence. In those instances, however, the prosecution was able to present other tell-tale signs of rape such as the location and description of the victim's clothings, especially her undergarments, the position of the body when found and the like. 63 In People v. Macalino, 64 for instance, the Court affirmed a conviction for the rape of a two-year old child on the basis of circumstantial evidence. 65 The Court notes that the testimony or medical opinion of Dr. Gajardo that the fresh laceration had been produced by sexual intercourse is corroborated by the testimony given by complainant. Elizabeth that when she rushed upstairs upon hearing her daughter suddenly cry out, she found appellant Macalino beside the child buttoning his own pants and that she found some sticky fluid on the child's buttocks and some blood on her private part.(Emphasis in the original) In contrast, in the case at bar, there is no circumstantial evidence from which to infer that accused-appellant sexually abused the victim. The only circumstance from which such inference might be made is that accusedappellant was seen with the victim walking toward the place where the girl's body was found. Maybe he raped the girl. Maybe he did not. Maybe he simply inserted a blunt object into her organ, thus causing the lacerations in the hymen. Otherwise, there is no circumstance from which it might reasonably be inferred that he abused her, e.g., that he was zipping up his pants, that there was spermatozoa in the girl's vaginal canal. Indeed, the very autopsy report of Dr. Bandonill militates against the finding of rape. In describing the stab wounds on the body of the victim, he testified: 66 [A]fter examining the body I took note that were several stab wounds . . . these were all found at the back area sir . . . extending from the back shoulder down to the lower back area from the left to the right. Considering the relative physical positions of the accused and the victim in crimes of rape, the usual location of the external bodily injuries of the victim is on the face, 67 neck, 68 and anterior portion 69 of her body. Although it is not unnatural to find contusions on the posterior side, these are usually caused by the downward pressure on the victim's body during the sexual assault. 70 It is unquestionably different when, as in this case, all the stab wounds (except for a minor cut in the lower left leg) had their entry points at the back running from the upper left shoulder to the lower right buttocks. It is noteworthy that the deceased was fully clothed in blue shorts and white shirt when her body was immediately after it was found. 71 Furthermore, there is a huge bloodstain in the back portion of her shorts. 72 This must be because she wearing this piece of clothing when the stab wounds were inflicated or immediately thereafter, thus allowing the blood to seep into her shorts to such an extent. As accused-appellant would naturally have to pull down the girl's lower garments in order to consummate the rape, then, he must have, regardless of when the stab wounds were inflicted, pulled up the victim's shorts and undergarments after the alleged rape, otherwise, the victim's shorts would not have been stained so extensively. Again, this is contrary to ordinary human experience.

Even assuming that Jennifer had been raped, there is no sufficient proof that it was accused-appellant who had raped her. He did not confess to having raped the victim. From the foregoing, we cannot find that accused-appellant also committed rape. In the special complex crime of rape with homicide, both the rape and the homicide must be established beyond reasonable doubt. 73 Third. The trial court ordered accused-appellant to pay the heirs of Jennifer Domantay the amount of P30,000.00 as actual damages. However, the list of expenses produced by the victim's father, Jaime Domantay, only totaled P28,430.00. Of this amount, only P12,000.00 was supported by a receipt. Art. 2199 of the Civil Code provides that a party may recover actual or compensatory damages only for such loss as he has duly proved. Therefore, the award of actual damages should be reduced to P12,000.00. In addition, the heirs of Jennifer Domantay are entitled to recover exemplary damages in view of the presence of the aggravating circumstance of abuse of superior strength. Art. 2230 of the Civil Code provides for the payment of exemplary damages when the crime is committed with one or more aggravating circumstance. An amount of P25,000.00 is deemed appropriate. 74 In accordance with our rulings in People v. Robles 75 and People v. Mengote, 76 the indemnity should be fixed at P50,000.00 and the moral damages at P50,000.00. 77 WHEREFORE, the judgment of the trial court is SET ASIDE and another one is rendered FINDING accusedappellant guilty of homicide with the aggravating circumstance of abuse of superior strength and sentencing him to a prison term of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and ORDERING him to pay the heirs of Jennifer Domantay the amounts of P50,000.00, as indemnity, P50,000.00, as moral damages, P25,000.00, as exemplary damages, and P12,000.00, as actual damages, and the costs.1wphi1.nt SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, GonzagaReyes and Ynares-Santiago, JJ., concur. Purisima and Buena, JJ., no took part.

G.R. Nos. 127125 & 138952 July 6, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEX PANIDA, ERNESTO ECLERA, and ALEX HORA, accused-appellants.

MENDOZA, J.: Accused-appellants were charged with the slaying of a tricycle driver and the taking of his vehicle on April 11, 1994 in two informations filed with the Regional Trial Court of Pangasinan. The information for the crime of carnapping charges: 1 That on or about the 11th day of April, 1994 at Poblacion, municipality of Asingan, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another with intent to gain, did then and there wilfully and unlawfully and feloniously take, steal and carry away one (1) motorcycle (Suzuki), bearing Plate No. 2N-13220-92, Motor No. GP 100278040 and Chassis No. Spg-100 UN-110614, worth P57,000.00 belonging to Sylvia Eclera without her knowledge and consent, thereafter, said accused brought said motorcycle to Agoo, La Union and mortgaged it to Romulo de Vera in the amount of P4,000.00, to the damage and prejudice of the said owner in the aforestated amount of P57,000.00. CONTRARY to Republic Act No. 6539 in relation to Art. 19 of the Revised Penal Code. That charging the crime of murder reads: 2 That on or about the 11th day of April, 1994 at barangay Lomboy, municipality of San Manuel, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, with intent to kill, with treachery and evident premeditation, abuse of superior strength and armed with knives and stone, did then and there willfully, unlawfully and feloniously attack, assault and stab one ANDRES ILDEFONSO, inflicting upon him fatal wounds in the different parts of his body which directly caused his instantaneous death, to the damage and prejudice of his heirs. CONTRARY to Art. 248 of the Revised Penal Code. The case for carnapping was originally tried before Branch 38 of the Regional Trial Court at Lingayen, Pangasinan. The case was later transferred to Branch 47 of the same court at Urdaneta. 3 On the other hand, the case for murder was assigned to Branch 46 of the court, also at Urdaneta. On motion of accused-appellants, the case was consolidated with the carnapping case pending before Branch 47 of the Regional Trial Court of Urdaneta. 4 Accused-appellants, who had pleaded not guilty to the charge of carnapping when the case was still pending in Branch 38 at Lingayen, likewise pleaded not guilty to the charge of murder. Thereafter, the two cases were jointly tried. 5

At the initial presentation of evidence by the prosecution relative to the carnapping case before Branch 38 at Lingayen, Pangasinan, three witnesses testified for the prosecution. Their testimonies are summarized in the following portion of the decision of the trial court: 1) ROCKY ECLERA, 16 years old, a resident of San Vicente West, Asingan, Pangasinan, testified that on 11 April 1994 at about 7:00 A.M., while he and the accused ALEX HORA, ALEX PANIDA and ERNESTO ECLERA were at the Poblacion of Asingan, Pangasinan, ALEX HORA invited the group to go to San Manuel, Pangasinan. They took a motorized tricycle for their ride from Asingan to San Manuel. It was driven by ANDRES ILDEFONSO. Somewhere in Barangay Lomboy, San Manuel, a more or less deserted place, accused ALEX HORA ordered the tricycle driver to stop the vehicle. Suddenly and unexpectedly ALEX HORA repeatedly stabbed the tricycle driver with the use of a knife. Afterwards when the driver appears to be still alive, hit the head of the driver with stone. Thereafter, Alex Hora called the witness and the others, and they boarded the same tricycle with Alex Hora as the driver. They proceeded to the irrigation dike at Macalong, Urdaneta, Pangasinan. At such place, ALEX HORA, with the help of ALEX PANIDA and ERNESTO ECLERA detached the sidecar. After the sidecar was detached, they (all four of them) boarded the motorcycle and went to Balite, Tarlac.1wphi1.nt They stayed at Tarlac for three days and three nights. On the third day, upon his urging, he was accompanied by accused ALEX PANIDA to Urdaneta, Pangasinan. At Urdaneta, he parted ways with Alex Panida. Accused ALEX HORA and ERNESTO ECLERA were left behind at Tarlac. In connection with the cases, he remembered having executed a sworn statement given at the police station at Asingan, Pangasinan. He identified a xerox copy of the same and admitted having signed the statement (EXHIBITS "D", and "D-1", the same exhibit was marked in evidence by the accused as EXHIBIT "1"). He identified pictures of a motorcycle and a sidecar. The pictures admittedly show the motorcycle stolen and the sidecar that was detached. 2) ROMULO DE VERA, 38 years old, market vendor, married and a resident of San Nicolas, Agoo, La Union, testified that on May 2, 1994, he saw accused ALEX HORA with VIOLETA BAUTISTA talking with his uncle, Alfredo Gali. The latter informed him that Alex Hora and Violeta Bautista were mortgaging to him a motorcycle, but he does not have money. So Alex Hora and Violeta Bautista pleaded that he instead take the mortgage. The two were badly in need of money. He agreed. The motorcycle allegedly was first mortgaged to one Mariano Kuan, a resident of San Nicolas Central, Agoo, La Union for P2,000.00. So what they did was to first pay Mariano Kuan the mortgage obligation of P2,000.00. He gave ALEX HORA another P2,000.00, as he was willing to give P4,000.00 only for the mortgage. He and ALEX HORA executed a mortgage document notarized by Arturo dela Rosa. Alex Hora signed for the registered owner Gilbert Eclera because the latter was allegedly arrested at Dagupan City, precisely it was for this predicament that they needed the money.

On May 22, 1994, police officers from Asingan, Pangasinan accompanied by a police officer from Agoo, went to his place looking for a motorcycle which was allegedly lost. He admitted that the motorcycle that they were looking for was in his possession. It was brought to the police station of Agoo. Thereat, he signed a document known as RECEIPT OF CONFISCATION. 3) ALFREDO GALI, 64 years old, married, retired government employee, and a resident of San Nicolas Norte, Agoo, La Union, testified that on 02 May 1994, ALEX HORA and Violeta Bautista went to his residence and offered to mortgage a motorcycle. Since he did not have money at that time, when he saw his nephew Romulo de Vera passed by, he called him and informed him of the purpose of Alex Hora and Violeta Bautista. He asked if Romulo had money. The latter answered in the affirmative. So they went to a notary public. At the office of the Notary Public, ALEX HORA and ROMULO DE VERA signed a mortgage document. He was there to witness the mortgage. He was the parties signed the document. (Citations omitted) The prosecution wanted to present Rocky Eclera 6 as witness also in the murder case, but he could not be served with subpoena. Despite an order issued by the trial court for his arrest, the prosecution was not able to present him as witness. 7 For this reason, the prosecution simply adopted the testimony of Rocky Eclera in Criminal Case No. U-8202 (carnapping) as its evidence in the murder case. The defense did not object. 8 The prosecution then presented two additional witnesses, whose testimonies are set forth in the trial court's decision, thus: 9 The other witness presented by the prosecution with respect to the carnapping case was SYLVIA ECLERA, 38 years old, married and a resident of Poblacion, Asingan, Pangasinan. She testified that she is the owner of a Suzuki motorcycle with Plate No. 2N-13220-92. The vehicle was registered in the name of her husband Gilbert Eclera. At about 10:00 P.M., on 11 April 1994, she received a report from Investigator Sonaco of the PNP Asingan that her tricycle driver was missing. PNP Asingan was informed by PNP Urdaneta that a sidecar was located at Macalong, Urdaneta. PNP Asingan sought the help of PNP Urdaneta. With the help of the PNP Urdaneta, they were brought to Macalong, Urdaneta, where the sidecar of the tricycle was located. The motorcycle was missing. On the following day, they located the dead body of the driver of the tricycle at Lomboy, San Manuel, Pangasinan. The cadaver of the driver was taken by Funeraria Mercado to Asingan Municipal Cemetery. The name of the driver was ANDRES ILDEFONSO. On 18 May 1994 she was informed by PNP Asingan that her motorcycle was in Agoo, La Union. Together with some elements of PNP Asingan, they proceeded to Agoo, La Union. The motorcycle was in the possession of one Romulo de Vera. The latter claimed that the motorcycle was mortgaged to him by one Alex Hora, one of the accused in these cases. This Romulo de Vera showed her a written mortgage contract or Salda in Ilocano, which was the same as Exh. "A". For the recovery of the motorcycle, she was asked to sign a receipt by Romulo de Vera. In connection with the funeral and church services of her deceased driver, she spent about P20,650.00. She also spent about P5,000.00 in connection with the recovery of the motorcycle. She was deprived of the use of her tricycle for more than one year. She received a daily income from the operation of the vehicles in the amount of P100.00. The motorcycle was bought for P43,000.00 and the cost of the sidecar was P14,000.00. DR. LEONARDO GUERRERO, the Rural Health Officer of the Municipality of Asingan was presented as witness to testify on the Medico-Legal Autopsy Report relative to the autopsy he conducted on the deceased ANDRES ILDEFONSO. The defense in respect to the offer of his

testimony, admitted the same. Accordingly, his testimony was dispensed with. (Citations omitted) Thereafter, the prosecution offered its documentary exhibits to which the defense did not interpose any objection. 10 Accordingly, all exhibits of the prosecution were admitted for the purpose for which they were offered and as part of the testimonies of the witnesses who identified them. 11 Among the documentary evidence was Exhibit D which is a sworn statement given by Rocky Eclera to the police of Asingan on May 20, 1994, in which he pointed to all of the accused-appellants as the ones who killed the tricycle driver, Andres Ildefonso, and took his vehicle. Accused-appellants Alex Panida and Ernesto Eclera testified in their defense. They likewise presented Rocky Eclera who had previously testified for the prosecution. Their testimonies are summarized in the trial court's decision as follows: 12 ROCKY ECLERA substantially testified that on 11 April 1994 while he and the accused, namely, ALEX PANIDA, ALEX HORA and ERNESTO ECLERA were at the Poblacion of Asingan to attend the town fiesta, accused ALEX HORA invited them to go to San Manuel, Pangasinan to attend the birthday of one of his friends. When he asked where in San Miguel, Alex Hora just responded, "just come with me and I'll take care of our ride." They took a tricycle at the parking area in Poblacion, Asingan for their ride to San Manuel. He, Alex Panida and Ernesto Eclera rode inside the cab, while Alex Hora sat at the rear of the tricycle driver. On their way to San Manuel, they again asked Alex Hora where they were going, but the latter just said they will go to the house of his friend who is celebrating his birthday. After passing the town proper of San Manuel, and when they were near the slope of the mountain, and while the tricycle was still running, Alex Hora suddenly stabbed the driver with the use of a knife. When the tricycle stopped, the witness ran away. The other accused, Alex Panida and Ernesto Eclera tried to pacify Alex Hora, but the latter faced them menacingly with his knife. The tricycle driver uttered pleading words like no more sir ("Saanen Apo" in the Ilocano dialect). Thereafter, Alex Hora pulled the prostrate body of the driver at the slope of the mountain. Then he hit the head of the driver with a big stone. The stone was as big as man's head. All the time that the driver was being stabbed and then hit with a stone, the other accused, Alex Panida and Ernesto Eclera were inside the tricycle. They did not inflict any blow to the driver. On the other hand, the witness ran to the mountain and hid himself. After the killing of the driver, Alex Hora called his companions to board the tricycle as they will proceed to his best friend in Tarlac. Witness did not know the place. They went to the irrigation dike site at Urdaneta, where Alex Hora detached the side car of the tricycle. Alex Hora alone detached the side car as nobody helped him. Thereafter, all four of them proceeded to Tarlac at the residence of Alex Hora's friend. They stayed there for three days. Then he asked Alex Panida to accompany him home, Alex Panida accompanied him up to Urdaneta. They took a mini bus as ride to Urdaneta. At Urdaneta, he proceeded home to Asingan, while Alex Panida told him that he will watch a movie in Urdaneta. Alex Hora and Ernesto Eclera were left at Tarlac.

He was subsequently arrested at Sison, Pangasinan by police officers of Asingan Police Department, he was investigated. His statement was taken, which he signed. His statement was written in English, which he did not understand. The contents of his statement were not translated in Ilocano dialect by the police investigator. He was never informed of his constitutional rights. His parents or relatives were not informed when he was investigated and when his statement was taken. The statement was marked as EXHIBIT "1". He was confined for about eight (8) weeks at the municipal jail of Asingan. He admitted having testified before the Court in Lingayen, Pangasinan in connection with the carnapping case. Accused ERNESTO ECLERA, 21 years old, single, student and resident of San Vicente West, Asingan, Pangasinan testified that on 11 April 1994, he, Rocky Eclera and his co-accused Alex Hora and Alex Panida were at the Poblacion of Asingan. They were there to attend the town fiesta. While there, Alex Hora invited the group to proceed to San Manuel to attend a drinking spree at his friend's place. While they were in San Manuel, they asked Alex Hora where they were going and he just said: "Just keep quiet and I will tell you later." They were not able to reach the place of Alex Hora's friend because Alex Hora stabbed the tricycle driver. They got off the tricycle to pacify Alex Hora but he faced them menacingly. They tried to grab his hand, but Alex Hora shouted don't intervene if you don't want to be involved like this man I am killing. They even told Alex Hora: "Don't stab him," "Have mercy on him," but Alex Hora told them not to interfere. Alex Hora used a FAN KNIFE, or a knife locally known as balisong, and one ice-pick in stabbing the driver many times. After the killing of the driver, they were invited by Alex Hora to go to Urdaneta. They rode on the same tricycle. They reached Consolacion, Urdaneta, where Alex Hora detached the side car of the tricycle. After detaching the side car, again Alex Hora told them to board the motorcycle and they proceeded to Tarlac. The four of them went to Tarlac on board the detached motorcycle with Alex Hora as the driver. They stayed with an uncle of Alex Hora in San Miguel, Tarlac. They stayed there for three days and three nights. On the third day, Rocky Eclera and Alex Panida returned to Urdaneta. While he proceeded to Manila. Alex Hora was left at San Miguel, Tarlac with the motorcycle. Before parting for Manila, he was warned by Alex Hora not to divulge that he killed the tricycle driver. Accused ALEX PANIDA, 23 years old, single, farmer and resident of San Vicente West, Asingan, Pangasinan testified that on 11 April 1994 at about 7:00 A.M., he was with Rocky Eclera and his co-accused Alex Hora and Ernesto Eclera at the town proper of Asingan to attend the town fiesta. While they were there, accused Alex Hora invited them to go to San Manuel at the place of his friend. They took a tricycle and proceeded to San Manuel. He, Ernesto Eclera and Rocky Eclera were seated inside the cab, while Alex Hora rode at the rear of the tricycle driver. They were not able to reach the place of Alex Hora's friend in San Manuel because Alex Hora stabbed the tricycle driver many times with the use of a knife about seven inches in length. While Alex Hora was stabbing the driver, witness asked Alex Hora why was he stabbing the driver, but Hora told him to leave him alone. Ernesto Eclera also told Alex Hora: "Don't do that to him." Rocky Eclera on the other hand ran near the slope of the mountain. When Alex Hora repeatedly stabbed the driver, the tricycle was still running.

After the stabbing incident, Alex Hora ordered them to ride on the tricycle and they proceeded to the irrigation dike at Urdaneta. At that place, Alex Hora detached the side car of the tricycle. He alone did the detaching. After the side car was detached, they proceeded to sitio Balite at Tarlac, Tarlac. They rode on the motorcycle that was detached. Alex Hora was the driver. They stayed there for three days and three nights. On the third day, he asked permission from Alex Hora that Rocky Eclera already wanted to go home. Alex Hora warned them not to squeal on what happened, otherwise, he will kill them all. He accompanied Rocky Eclera back to Urdaneta, where he parted ways with Rocky Eclera. He proceeded to a friend's house to borrow some money as fare in going to Baguio. Alex Hora and Ernesto Eclera were left at Tarlac. He did not return anymore to Tarlac. He eventually saw them at the Provincial Jail in Lingayen, Pangasinan. (Citations omitted) For his part, accused-appellant Hora presented SPO2 Romeo Mababa and Vice Mayor Guillermo Piso as his witnesses. He also testified in his behalf. Their testimonies are as follows: 13 Accused ALEX HORA, 26 years old, construction worker, married and resident of San Vicente West, Asingan, Pangasinan testifying for his defense stated that in the evening of 10 April 1994, he, together with Alex Panida, Ernesto Eclera and Rocky Eclera were at the town proper of Asingan strolling. They stayed there the whole night. On the following day, 11 April 1994 at about 7:00 A.M., Alex Panida invited him to go with them, referring to the other companions of Alex Panida, to Lomboy, San Manuel. They will go to Alex Panida's aunt thereat. Alex Panida will hire the tricycle of his aunt, Sylvia Eclera. Alex Panida was able to hire the tricycle of her aunt Sylvia Eclera which they used for ride in going to Lomboy, San Manuel. They reached the residence of his auntie at Lomboy, San Manuel. Alex Panida and Ernesto Eclera alighted and went to the house of Alex Panida's aunt. When Alex Panida returned, he approached the tricycle driver and poked a knife against the latter. Suddenly he stabbed the driver. After Alex Panida stabbed the driver, witness and the other two companions, Rocky Eclera and Ernesto Eclera ran towards the slope of the mountain. Alex Panida yelled and shouted at them to help him. He threatened them to help him. If they will not help him (PANIDA), he will kill them. When they returned to the tricycle, they saw the driver face down and already dead. When he saw that the driver was already dead, he was shocked and cannot move. He fainted and lost consciousness. His companions boarded him on the tricycle. He was awakened by Alex Panida when they reached the town proper of Binalonan, Pangasinan. They proceeded to the irrigation dike at Urdaneta where they detached the side car of the tricycle. It was Alex Panida who detached the side car. He and the others only helped the former. After the side car was detached, they rode on the motorcycle and they proceeded to Balite, Tarlac at the residence of Alex Panida's uncle. Alex Panida drove the motorcycle. They stayed there for three days and three nights. While they were sleeping, Alex Panida told his uncle that he and Rocky Eclera will just go out. When he inquired from Panida's uncle the latter told them that Panida used the motorcycle in going back to PMA-Baguio. Afterwards, he and Ernesto Eclera also parted ways. He returned home to Asingan, while Ernesto Eclera went to Magalang, Pampanga to borrow money from his uncle there for his fare to Manila.

Four days after he returned from Tarlac, Alex Panida dropped by his residence and invited him to go to Agoo, La Union so that they will mortgage the motorcycle as Alex Panida was badly in need of money. He was able to mortgage the motorcycle with one Romulo de Vera for P4,000.00. However, the P2,000.00 was first given to Mariano Huan who was the first mortgagee of the motorcycle and the balance of P2,000.00 was given to him. xxx xxx xxx SPO2 ROMEO MABABA, a member of the Philippine National Police of Asingan, Pangasinan testified that he was the same SPO2 Romeo Mababa who took the statement of ROCKY ECLERA on May 20, 1994. When he took the statement of Rocky Eclera he informed him of his constitutional rights and explained to him his rights. When his statement was taken his father and the vice mayor of the municipality of Asingan were present. After he took the statement of Rocky Eclera, he translated same in the Ilocano dialect which he fully understood. Thereafter, he signed his statement. Then he brought him to Judge Suller of the Municipal Circuit Court of Asingan, before whom Eclera took his oath in respect to his statement. GUILLERMO PISO, the vice-mayor of the municipality of municipality of Asingan, testified that together with police elements of the municipality of Asingan, they arrested ROCKY ECLERA and ALEX PANIDA somewhere in La Union in connection with the death of Andres Ildefonso, a relative. After their arrest, they were brought to Asingan. At the Asingan Police Department, Rocky Eclera was investigated and he voluntarily gave a sworn statement. During the taking of Rocky Eclera's sworn statement, he was present. So also was Rocky Eclera's father. When he was informed of his constitutional rights, Eclera said that he was not interested. He merely asked that his father be present. So his father was fetched. His father advised him to tell the truth. The police investigator translated his statement written in English to Ilocano. After his statement was translated, he signed the same. It was the parent of Alex Panida who informed the Asingan PNP of the whereabouts of ALEX PANIDA and ROCKY ECLERA. (Citations omitted) After the defense finished presenting its evidence, the prosecution presented Dr. Leonardo Guerrero, the rural health officer of Asingan, as rebuttal witness. He testified that 14 he was the one who conducted autopsy on the deceased ANDRES ILDEFONSO. He committed an honest mistake in his Medico-Legal Autopsy Report. The lacerated wounds should be incised wounds. There were about 44 15 stab wounds and several incised wounds inflicted on the deceased. These could have been caused possibly by several persons, with the use of different weapons. (Citations omitted) On August 23, 1996, the trial court rendered its decision 16 finding all accused-appellants guilty beyond reasonable doubt of carnapping and murder. The dispositive portion of its decisions reads: 17

WHEREFORE, premises considered, judgment is hereby rendered as follows: IN CRIMINAL CASE NO. U-8202 a) Finding the accused ALEX PANIDA, ERNESTO ECLERA and ALEX HORA GUILTY beyond reasonable doubt of the crime of CARNAPPING under R.A. 6539, the Court sentences them to suffer imprisonment of SEVENTEEN (17) YEARS; b) Ordering the accused to pay jointly and severally spouses GILBERT and SYLVIA ECLERA the sum of P20,650.00 representing burial and funeral expenses incurred by them in connection with the death of their driver of the motorized tricycle; the sum of P5,000.00 representing expenses incurred in the recovery of the motorcycle and side car; and to pay the costs. IN CRIMINAL CASE NO. U-8203 a) Finding the accused ALEX PANIDA, ERNESTO ECLERA and ALEX HORA GUILTY beyond reasonable doubt of the crime of MURDER with the generic aggravating circumstance of cruelty, the Court sentences them to suffer the penalty of DEATH; b) Ordering the accused to pay jointly and severally the heirs of ANDRES ILDEFONSO P50,000.00 as indemnity and the additional sum of P50,000.00 as moral damages and to pay the costs. SO ORDERED. Hence, this appeal. Accused-appellants Panida and Ernesto Eclera contend: 18 I. THE TRIAL COURT ERRED IN CONVICTING ALEX PANIDA AND ERNESTO ECLERA, INSTEAD OF ACQUITTING THEM IN BOTH CRIMES OF MURDER AND CARNAPPING, FOR NON-COMPLICITY. II. AT BEST, THE PROSECUTION EVIDENCE IS SHORT OF THE QUANTUM OF PROOF BEYOND REASONABLE DOUBT. III. ASSUMING GUILT ARGUENDO, APPELLANTS PANIDA AND ECLERA ARE LIABLE ONLY AS ACCESSORIES FOR CARNAPPING AND HOMICIDE, NOT MURDER. Accused-appellant Hora, on the other hand, contends: 19 I. THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCONSISTENT AND CONFLICTING TESTIMONIES OF ROCKY ECLERA IN HIS SWORN STATEMENT AND THOSE TESTIFIED TO BY HIM DURING THE TRIAL. II THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT ALEX HORA GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES OF CARNAPPING AND MURDER BASED SOLELY ON THE CONFLICTING TESTIMONIES OF ROCKY ECLERA. Participation of Accused-Appellants

in the Commission of the Crimes Accused-appellants Alex Panida and Ernesto Eclera cite the testimony of Rocky Eclera that Alex Hora alone hired the tricycle to go to San Manuel, he alone stabbed its driver, and he alone detached the sidecar from the motorcycle in Urdaneta. They make capital of the fact that Rocky categorically stated that they did not have any part in detaching the sidecar and in killing the victim but, on the contrary, even tried to stop Hora from committing the crimes. 20 Accused-appellant Hora, on the other hand, questions the reliability of Rocky Eclera's testimonies and sworn statement 21 which he claims are inconsistent and conflicting. 22 Hora points out the following: 23 (1) Rocky Eclera testified in his testimony in the carnapping case that Alex Hora asked the driver to stop the tricycle, then he repeatedly stabbed the driver. (TSN, Nov. 15, 1994, pp. 4, 10). While in his testimony for the defense of accused Alex Panida and Ernesto Eclera, accused Alex Hora repeatedly stabbed the driver while the tricycle was still running. (TSN, February 12, 1996, p. 13). (2) In the carnapping case, accused-appellant Alex, with the help of Panida and Ernesto Eclera, detached the side car of the motorcycle (TSN, Nov. 15, 1994, p. 5) while in his testimony for the defense, it was only Alex Hora who detached the side car (TSN, Feb. 12, 1996, p. 23). (3) In his testimony during the stabbing of the driver by Alex Hora, the other co-accused alighted from the tricycle and tried to pacify Alex Hora (TSN, Nov. 15, 1994, p. 10) while in his testimony for the defense, at the time that Alex Hora was stabbing the driver, the two co-accused were inside the tricycle (TSN, 12 February 1994, pp. 17-19). (4) In his testimony for the defense of accused Panida and Eclera, Rocky Eclera recanted his implication of the said two co-accused in the killing of the tricycle driver in his sworn statement given to the Asingan PNP and pointed to accused-appellant Alex Hora as the only solely responsible for the crimes committed. Moreover, he claims that his account of what happened on April 11, 1994 is more credible than that of accused-appellants Panida and Ernesto Eclera and witness Rocky Eclera. 24 Thus, put simply, accused-appellants Alex Panida and Ernesto Eclera, on the one hand, and accused-appellant Alex Hora, on the other, accuse each other of the crimes. They do not claim that other persons were involved. Neither is there any dispute as to the relevant facts. On the contrary, all of them agree that They were together in the morning of April 11, 1994, immediately prior to the commission of the crimes. 25 They all rode on the tricycle driven by the victim to go to San Manuel where the latter was killed. 26 The victim was stabbed several times as the autopsy report states. 27 They were all present when the victim was stabbed; no one else was with them. 28 After the stabbing, all of them rode on the tricycle to go to Urdaneta where the sidecar was detached. 29 After the sidecar had been detached, they all rode on the motorcycle to go to Tarlac where they stayed together for three (3) more days. 30

 Not one of accused-appellants reported the matter to the police. 31 Accused-appellant Hora tries to extricate himself by claiming that he did not know what the others (Alex Panida and Ernesto Eclera) were planning to do and that he was so shocked he fainted at the sight of Andres Ildefonso being killed. However, he could have escaped from the two. Instead, he stayed with them for three more days after the commission of the crimes. Even more telling is the fact that he was the one who mortgaged the very motorcycle taken from the victim, which he admits. 32 On the other hand, accused-appellants Panida and Ernesto Eclera claim it was accused-appellant Hora who alone killed the victim and detached the sidecar from the motorcycle. 33 However, when asked why they did not leave accused-appellant Hora if they did really not agree with what he did despite opportunities to do so, the two merely claimed it was because they were scared. 34 This is incredible as the two of them, with Rocky Eclera, could have easily overpowered accusedappellant Hora. At the very least, they could have escaped from him. After all, there is no showing that accusedappellant Hora guarded them every minute of the day. Accused-appellant Panida in fact admitted they were free to go to any place during the time they were together after the killing. 35 Moreover, if Ernesto Eclera were to be believed, accused-appellant Hora used two kinds of weapons in stabbing the victim 43 times. This is not, however, likely. That three men inflicted 43 stab wounds with the use of more than one weapon is more plausible than that only one person inflicted such wounds with two different weapons. Nor does the claim of accused-appellants Panida and Ernesto Eclera that accused-appellant Hora alone detached the sidecar 36 inspire belief. It is not easy to detach a sidecar alone. Moreover, a specific tool is needed in order to unscrew the bolts holding the sidecar to the motorcycle, which cannot be assumed that the victim Andres Ildefonso would normally carry around with him on a normal day while plying his route. It is apparent that the respective versions of accused-appellants have only one purpose, to escape liability by laying the blame on the other. Considering the relevant facts, the ineluctable conclusion is that all of accusedappellants are guilty of the two crimes. Indeed, in his statement given earlier to the police, the eyewitness Rocky Eclera named all accused-appellants as the perpetrators of the crimes. It is noteworthy that this statement was presented in evidence not only by the prosecution (Exh. D) but also by all of the accused-appellants (Exh. 1). The statement, which was made under oath, reads in full: PRELIMINARY : Mr Rocky Eclera, I would like to inform you that you were being investigated for your involvement in a commission of a crime. I would like also to inform you that under the New Constitution, you have the right to remain silent, the right of the assistance of a counsel of your own choice and that all statement you give in this investigation will be used in your favor and for against you in any Court of justice in the Philippines. Is this clearly understood by you? ANSWER : Yes, sir. QUESTION : Mr. Rocky Eclera, after having been informed of your rights under the New Constitution, do you still wish to be investigated? ANSWER : Yes, sir. QUESTION : Do you still need the assistance of a counsel of your own choice? ANSWER : No more, sir.

QUESTION : Mr. Rocky Eclera, if you can not afford to have a counsel the government will provide you a counsel? ANSWER : No more, sir. QUESTION : Do you likewise need the presence of your relatives, your father, mother, brother or any trusted relatives of yours to be present in this investigation? ANSWER : Yes, sir, I want my father. QUESTION : Now that your father was here, are you now ready to give your statement voluntarily in this investigation? ANSWER : Yes, sir. 01. Q If so, please state your name, age and other personal circumstances? A I am Rocky Eclera y Layos, 16 years old, single, jobless and a resident of Brgy San Vicente, Asingan, Pangasinan, sir. 02. Q Do you know why are you being investigated in this Investigation Office of the Asingan Police Station, Asingan, Pangasinan this 20th day of May, 1994? A Yes, sir. 03. Q What is the reason why you are being investigated by this office? A For being one of the four suspects in the carnapping of a motorized tricycle and the death of the driver, sir. 04. Q You have stated above that you are one of the four suspects of the incident, can you state the names of the three? A Yes, sir. 05. Q Who are they? A They are, Alex Panida, Alex Hora and Ernesto Eclera, sir. 06. Q When and where did you carnapped the motorized tricycle killed the driver? A On April 11, 1994 at about 7:00 o'clock in the morning at Poblacion West, Asingan, Pangasinan and the driver was being brought to a certain barangay in San Manuel, Pangasinan where he was being killed. 07. Q You have stated a while ago that the incident was happened on 11 of April 1994, can [you] state briefly how it happened? A Yes, sir. This is the way. On April 11, 1994 at about 7:00 o'clock in the morning, Alex Panida, Alex Hora, Ernesto Eclera and I were at Poblacion West, Asingan,

Pangasinan near the Police Outpost waiting for a ride going home. A few minutes later a Suzuki motorized tricycle arrived and we hired it and we proceeded at a certain barangay of San Manuel, Pangasinan which I do not know. When we arrived at the place, Ernesto Eclera pointed out his knife against the driver and stabbed the driver many times. Then Alex Panida and Alex Hora alighted from the tricycle also both armed with a knife and the two stabbed the driver for many times also until the driver fell on the ground and when they noticed that the driver was still alive, Alex Hora took a big piece of stone and hit the head of the driver then Alex Panida and Alex Hora [p]ulled the body of the driver and put it on the slope of the mountain. 08. Q Do you know the driver of the motorized tricycle? A Yes, sir it was Andres Ildefonso. 09. Q Do you also know the owner of the motorized tricycle? A Yes, sir it was Mrs. Sylvia Eclera. 10. Q After knowing that the driver was already lifeless and was put on the slope of the mountain, what did you do next? A We boarded on the tricycle and proceeded to Urdaneta at Brgy. Macalong wherein Alex Panida, Alex Hora and Ernesto Eclera detached the sidecar and abandoned it near the irrigation dike. 11. Q Then where did you go? A We proceeded to Tarlac with the motorcycle, sir. 12. Q When you were in Tarlac, what happen[ed] next if any? A Alex Panida drove the motorcycle and returned me at Brgy. San Vicente West, Asingan, Pangasinan, sir. 13. Q So, Ernesto Eclera and Alex Hora left behind in Tarlac? A Yes, sir. 14. Q Now, do you know if Alex Panida return in Tarlac? A Yes, sir. 15. Q Do you also know where Alex Panida, Alex Hora and Ernesto Eclera brought the motorcycle? A I do not know anymore, sir. 16. Q I have no more questions to ask, can you say more? A No more for the present time, sir.

17. Q Are you willing to sign your statement and also willing to testify in Court? A Yes, sir. 37 When he testified in court, first as witness for the prosecution and later as witness for accused-appellants Alex Panida and Ernesto Eclera, Rocky Eclera reiterated all the relevant points in this sworn statement, to wit: 1. that all three accused-appellants and himself were together prior to the commission of the crime 38 2. that they were all present when the victim was stabbed and no one else was there 39 3. that they all rode the tricycle again after the stabbing 40 4. that all three accused-appellants took part in detaching the sidecar 41 5. that they stayed together for three days after the crimes were committed going from place to place. 42 The only part of the statement which Rocky Eclera retracted was that naming all accused-appellants as the perpetrators of the crimes. In his testimony in court, he pointed to accused-appellant Hora alone as the one who committed the two crimes. However, there are reasons for giving his sworn statement weight and believing that what he said in his sworn statement was the truth not what he stated in court as to who were guilty of the crimes. The reasons are: First. Rocky Eclera claims that his statement was actually made by SPO2 Mababa; that it was not translated to him (Rocky Eclera) in Ilocano; and that he was not informed of his constitutional rights. SPO2 Mababa, however, denied this and likewise pointed out that Rocky Eclera was actually accompanied to the police station by his father and Vice Mayor Guillermo Piso of the Municipality of Asingan. 43 Rocky's father in fact urged Rocky to tell the truth according to Vice Mayor Piso. 44 Vice Mayor Piso himself also debunked Rocky's claims that he did not make the statement in question and that he was simply asked to sign it without first having it explained to him in the Ilocano dialect. 45 With respect to the claim that Eclera's statement was obtained by the police without giving him the Miranda warnings, 46 suffice it to say that the statement, as quoted above, shows that he was warned of his rights. At all events, the reliance on Art. III, 12 of the Constitution is baseless since the statement is not being used against the person who made it. It is not in fact a confession of guilt on Rocky's part. Indeed, there is nothing in the record to show that Rocky ever complained against policemen who allegedly coerced him to give the sworn statement in question or in any way violated his constitutional rights when he appeared before Judge Suller of the Municipal Circuit Trial Court of Asingan to swear to his statement. Neither does Rocky claim that policemen had ill-motive to implicate accused-appellants Panida and Ernesto Eclera. Second. The sworn statement was in fact offered in evidence not just by the prosecution as its Exhibit D, but also by all accused-appellants as their Exhibit 1. Moreover, the affiant, Rocky Eclera, was presented as witness by both prosecution and the defense. 47 A sworn statement is hearsay only when the affiant is not presented in court. 48 Both sides had opportunity to cross-examine Rocky Eclera. The defense presented Rocky to dispute his own statement, but the trial court, in a well-reasoned decision, supported by evidence on record, 49 found Rocky's retraction to be without merit. The determination of the credibility of witnesses is a task best left to trial courts, given their unparalleled opportunity for observation of the deportment of witnesses on the stand. For this reason, their findings are accorded great respect in the absence of any compelling reasons for concluding otherwise. 50

Third. Rocky Eclera tried to retract his statement naming all of accused-appellants as the culprits by pointing to accused-appellant Hora alone as the guilty party, because accused-appellants Alex Panida and Ernesto Eclera are his relatives. Rocky's father and Ernesto's father are cousins, while Alex Panida's mother and Rocky's father are likewise cousins. 51 Rocky Eclera also testified that he is closer to accused-appellants Panida and Ernesto Eclera and that he only recently met accused-appellant Hora. 52 This explains why Rocky Eclera refused to testify for the prosecution in the murder case after once testifying in the carnapping case. As the trial court noted: 53 The Court observes that when presented as witness for the accused ALEX PANIDA and ERNESTO ECLERA, Rocky Eclera evinced hesitancy in his answers. He generalized his denials as to inculpatory matters respecting accused ALEX PANIDA and ERNESTO ECLERA as due to his being confused and frightened. This witness comparatively, was the youngest of the group. He was only 16 years old when he testified in Lingayen, Pangasinan before Branch 38. After more than one year, he was presented anew not as witness for the prosecution, but as witness for the defense. His recantation was not unexpected, considering his reticence and recalcitrance to testify for the State. In fact, during the time that he testified recanting his testimony in Court as well as his damaging and inculpatory declarations in his sworn statement against the other accused Alex Panida and Ernesto Eclera, he oftenly stammered, pondering with difficulty his recantation. In recanting having stated that accused Alex Panida and Ernesto Eclera helped detached the side car of the motorcycle as declared in Court, he wants to ascribe falsification in court proceedings. He claims that the testimony was never made. The ease with which he ascribes falsification in so far as his cousins are concerned, but with steadfastness in so far as accused ALEX HORA is concerned, reveals he is being manipulated to pollute the truth inceptually disclosed by him in his Sworn Statement. Forth. A witness' prior inconsistent statement can be used to impeach his credibility, but the converse does not necessarily follow. Retractions are disfavored in law. As this Court held in People v. Ubia: 54 The theory of the defense that Francisco's previous testimony is false, as he subsequently declared it to be so, is as illogical as it is dangerous. Merely because a witness says that what he had declared is false and that what he now says is true, is not sufficient ground for concluding that the previous testimony is false. No such reasoning has ever crystallized into a rule of credibility. The rule is that a witness may be impeached by a previous contradictory statement; not that a previous statement is presumed to be false merely because the witness now says that the same is not true. The jurisprudence of this Court has always been otherwise, i.e. that contradictory testimony given subsequently does not necessarily discredit the previous testimony if the contradictions are satisfactorily explained. We have also held that if a previous confession of an accused were to be rejected simply because the latter subsequently makes another confession, all that an accused would do to acquit himself would be to make another confession out of harmony with the previous one. Similarly, it would be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them later on change their mind for one reason or another, for such rule would make solemn trials a mockery and place the investigation of truth at the mercy of unscrupulous witnesses. If Francisco says that when he testified for the prosecution he was paid P700, what can prevent the court from presuming that subsequently he testified for the defense because the defendants also paid him to testify for them? The rule should be that a testimony solely given in court should not

be lightly set aside and that before this can be done, both the previous testimony and the subsequent one be carefully compared, the circumstances under which each given carefully scrutinized, the reasons or motives for the change carefully scrutinized in other words, all the expedients devised by man to determine the credibility of witnesses should be utilized to determine which of the contradictory testimonies represents the truth. (Citations omitted) Fifth. Rocky Eclera's testimony is basically the same as his sworn statement. His testimony that only accusedappellant Hora is guilty can be disregarded and his statement that actually all three accused-appellants committed the crimes believed. For courts may believe one part of the testimony of a witness and disbelieve another part because courts are not required to accept or reject the whole testimony of a particular witness. 55 In the present case, the particular circumstances enumerated above convince us that Rocky's claim that all three accused-appellants participated in the commission of the crimes as embodied in his sworn statements is the truth and is the more credible. Coupled with admissions by accused-appellants themselves which corroborate and dovetail with Rocky's sworn statement and testimony in relevant aspects, including the elements of the crimes, they fully justify the trial court in giving much weight to Rocky's story in his sworn statement. Existence of Conspiracy The evidence on record indeed indicates, as the trial court correctly found, that there was conspiracy in the case at bar. Conspiracy need not be proved by direct evidence and may be inferred from the conduct of all the accused before, during, and after the commission of the crime. 56 In the present cases, the totality of the evidence shows that: accused-appellants together took the tricycle driven by the victim; they were all present at the time of killing and the taking of the tricycle; the victim was stabbed several times and they were all there when it happened; after the killing, all of the accused-appellants rode the tricycle to Urdaneta and then to Tarlac, and stayed together for three days; all of them took part in detaching the sidecar from the motorcycle; all three accused-appellants stabbed the victim; and the victim suffered 43 stab wounds suggesting they were inflicted by more than one person. Clearly, the inevitable conclusion is that accused-appellants acted in concert.1wphi1.nt Conspiracy being present, all of accused-appellants are liable for the crimes in these cases. For where there is conspiracy, evidence as to who among the accused rendered the fatal blow is not necessary. All conspirators are liable as co-principals regardless of the intent and the character of their participation, because the act of one is the act of all. 57 It remains to determine whether the prosecution has proven all the elements of both crimes in order to justify conviction of accused-appellants. Liability of Accused-Appellants for Murder Art. 248 of the Revised Penal Code in part provides: Any person who, not falling within the provisions of Art. 246 [parricide], shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. xxx xxx xxx

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. The trial court found all of accused-appellants guilty of murder. Indeed, there is no doubt that the unlawful killing of the victim in the present case has been proven. The autopsy report shows that the victim suffered 43 stab wounds and that as a result he died. Accused-Appellants themselves and witness Rocky Eclera admitted that the victim stabbed several times and hit on the head with a big stone to finish him off. They all admit that the body was pulled towards the mountain immediately thereafter. They likewise admit that the victim was merely bringing them to their destination and was caught by surprise when stabbed. There was no claim of selfdefense or accident. Thus, the only question to be determined is whether such killing can be considered murder. Accused-appellants Panida and Ernesto Eclera contend that it is homicide, though without specifying the reason why, while the trial court maintains it is murder in view of the qualifying circumstance of treachery. To appreciate treachery, two conditions must be present, to wit: (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate and (2) the means of execution were deliberately or consciously adopted. 58 In these cases, there is no question that the means of execution employed by accused-appellants was such that the victim had no opportunity to defend himself. The victim was unsuspecting; as far as he was concerned, he was merely taking passengers from one place to another. He was stabbed with suddenness and from behind, leaving him totally defenseless. All these, coupled with the fact that the victim was unarmed and had no opportunity to defend himself, indubitably demonstrate the treacherous nature of the attack. As regards the second requisite, the following facts lead us to no other conclusion than that accused-appellants consciously adopted a mode which would ensure the realization of their purpose without danger to themselves: accused-appellants were already carrying weapons when they rode the tricycle; the victim was first stabbed from behind while he was sitting on the tricycle and thus already wounded and disoriented before he was attacked by all the rest; all three accused-appellants attacked him; he was stabbed 43 times; they continued stabbing him even he was defenseless and begging for his life; lastly, the victim was stabbed on different part of his body. Accused-appellants could not have inflicted so many wounds and on different parts of the victim's body had they not consciously adopted such manner of attack. The manner in which the victim was killed and the aforementioned external manifestations of accused-appellants clearly show that they consciously and deliberately adopted the particular method or form of attack to insure the accomplishment of their purpose. 59 However, we do not agree with the trial court that the killing was committed with cruelty. The trial court considered the number of wounds and the final blow to head as basis for its finding. But the number of wounds is not a test for determining whether cruelty is present. The test is whether that accused deliberately and sadistically augmented the victim's suffering. Consequently, there must be proof that the victim was made to agonize before he was killed. 60 Here, there is no such proof of cruelty. Accused-Appellants' Liability of Carnapping Under R.A. No. 6539, as amended, carnapping is defined as "the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons or by using force upon things." In the case at bar, the prosecution has proven through the testimonies of Sylvia Eclera, Rocky Eclera, and accused-appellants themselves that accused-appellants took the tricycle of Sylvia Eclera. Although only accused-appellant Hora appears to have mortgaged the motorcycle, the intent to gain on the part of all the accused-appellants can be inferred from the unlawful taking of tricycle by them. Moreover, it has been held that it is enough that the other accused intended that any one of them should benefit from the taking. 61

Accused-Appellants' Liability for Damages In Criminal Case No. U-8202 for carnapping, the trial court ordered accused-appellants to pay the spouses Eclera P20,650.00 representing burial and funeral expenses and P5,000.00 representing expenses incurred in the recovery of the motorcycle and the sidecar. The evidence in the record fully supports the award of damages concerning these items. 62 In Criminal Case No. U-8203 for murder, the trial court correctly awarded the heirs of the victim P50,000.00 as indemnity. 63 When death occurs as a result of a crime, the heirs of the deceased are entitled to the amount of P50,000.00 as indemnity for the death of the victim without need of any evidence or proof of damages. The trial court likewise appropriately awarded P50,000.00 as moral damages to the heirs of the victim. 64 In addition, the evidence in the record sufficiently establishes the basis for an award of unearned income to the heirs of the victim. 65 The employer of the victim testified that the latter's monthly income is P3,000.00. 66 The autopsy report 67 shows that the victim was 43 years old at the time of his death. The deceased's unearned income is as follows: 68 net gross living expenses earning (x) = life expectancy x annual less (50% of gross capacity income annual income) x = 2(80-43) x [36,000-18,000] 3 = 24.67 x 18,000 = P444,060.00 The Appropriate Penalties In view of our finding that the aggravating circumstance of cruelty does not exist, the penalty imposed by the trial court must be reduced to reclusion perpetua. 69 As for the penalty imposed on the accusedappellants for the crime of carnapping, the trial court erred in imposing a straight penalty of 17 years. Under the Indeterminate Sentence Law, if the offense is punished by a special law, the court shall sentence the accused to an indeterminate penalty, the maximum term of which shall not exceed the maximum fixed by said law and the minimum term shall not be less than the minimum prescribed by the same. 70 Thus, the penalty imposed must be a range. The charge being simple carnapping, the imposable penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months. 71 There can be no suppletory effect of the rules for the application of penalties under the Revised Penal Code or by other relevant statutory provisions based on, or applicable only to, the rules for felonies under the Code. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to

Republic Act No. 6539 and special laws of the same formulation. 72 For this reason, we hold that the proper penalty to be imposed on each of accused-appellants is an indeterminate sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum. WHEREFORE, the decision of the Regional Trial Court of Urdaneta, Pangasinan, Branch 47 in Criminal Case Nos. U-8202 and U-8203 is AFFIRMED with the following MODIFICATIONS: 1. In Criminal Case No. U-8202, accused-appellants are sentenced to suffer an indeterminate sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum. 2. In Criminal Case No. U-8203, accused-appellants' sentence is reduced to reclusion perpetua. 3. In Criminal Case No. U-8203, accused-appellants are ordered to pay the heirs of the victim the amount of P444,060.00 as unearned income. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur. Romero J., Abroad on official business.

G.R. No. 129793 December 15, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AUGUSTO TANZON y DELOS REYES, accused-appellant. YNARES-SANTIAGO, J.: Before us is an appeal from a decision rendered by the Regional Trial Court, Branch 83 of Quezon City, 1 convicting accused-appellant, Augusto Tanzon y De los Reyes of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua. The facts of the case as culled from the records are as follows: In the evening of November 19, 1994, the deceased Lemuel Juanillo y Egeron was walking home from work with his common-law wife, Liza Quilang, when they happened to pass by accused-appellant Augusto Tanzon and four of his friends having a drinking spree in front of accused-appellant's home in No. 28 A. Tanzon Street, Area 6, Sitio Cabuyao, Barangay Sauyo, Novaliches, Quezon City. Accused-appellant invited the deceased for a drink but the latter refused since he already had some drinks earlier at his place of work and he just wanted to get home to rest. When Liza, who was seven (7) arms length ahead of the deceased, turned to look back at her husband, she was horrified to see accused-appellant Augusto Tanzon let out a burst of gunfire from a long metal pipe he was holding, hitting the deceased from behind and causing him to fall immediately. As another-shot rang out, Liza shouted invectives at the accused-appellant and his friends and told them to stop shooting, but her protestations fell on deaf ears. Accused-appellant's companions dragged the deceased seven (7) meters away from where he lay. 2 Accused-appellant then entered his house and after a short interval came out, this time holding a small gun which he used to shoot the deceased who was lying prostrate on the ground. Accused-appellant's friends then kicked, punched and slumped a chair on the deceased. Liza started screaming again at her husband's assailants but one of the men just told her, "Wala kang nakita." 3 When the men left, Liza tried to approach her husband but one of them returned and began to shoot. He shot Liza thrice but Liza escaped unscathed because she ran "zigzagging" on the street towards the house of her inlaws located at the upper portion of the street, fifty (50) meters away. 4 It was only after an hour, when the policemen arrived, that Liza and her mother-in-law were able to approach the body of the deceased. 5 The policemen brought the body of the deceased to the funeral parlor while Liza went to the precinct together with the other policemen to file a complaint against the accused-appellant. 6 Liza's story is corroborated by Paz Tumbagahan, a neighbor, who testified that on the night in question, at about 11:30 o'clock in the evening, she heard a gunshot. Curious as to where the shot originated, Paz went out of her house and stood near a NAWASA tank when she saw Augusto Tanzon with some friends poking a long metal pipe at someone whom she could not identify because the latter was in a dim corner of the street. Paz had no trouble ascertaining the identity of accused-appellant since he and his group were standing in a portion which was well lighted. 7 When another shot rang out, Paz heard a woman scream. As this was followed by one more shot, she saw Liza Quilang running in a zigzag manner, being chased by Alex Tanzon, the son of accusedappellant. 8 Alex fired three shots after which he stopped chasing Liza. Having failed to overtake her, he turned his ire on the other onlookers saying, "Bumaba ang matapang." 9 On December 2, 1994, an information was filed against accused-appellant which reads: The undersigned accuses AUGUSTO TANZON Y DE LOS REYES of the crime of MURDER, committed as follows:

That on or about the 19th of November, 1994, in Quezon city, Philippines, the above-named accused, conspiring, confederating with one other persons whose true names, identities and whereabouts have not as yet been ascertained and mutually helping one another, with intent to kill, and without justifiable cause, with treachery and abuse of superior strength did then and there wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one LEMUEL JUANILLO y EGERON in the manner as follows: Accused Augusto Tanzon y de los Reyes shot said victim with a long gun and causing him to fall to the ground and again shot the fallen body at the back with a short gun which was the direct and immediate cause of his untimely death, that in the furtherance thereof, and to augment his sufferings, with evident premeditation and cruelty, his co-accused deliberately kicked, slapped and dragged the victim and after which accused Augusto Tanzon y de los Reyes shot again the victim's body with a handgun, to the damage and prejudice of the heirs of the offended party. CONTRARY TO LAW. 10 Accused-appellant pleaded not guilty at his arraignment. His defense is as follows: On the evening of November 19, 1994, specifically from 7:00 o'clock to 11:00 o'clock, accused-appellant was in his house along A. Tanzon Street, Novaliches Quezon City tending to the guests of his daughter, Cristina, who was celebrating her birthday. The party proceeded smoothly, with some of the guests singing and dancing. Accused-appellant joined the revelry by lighting some firecrackers which was brought by a guest. At around 11:00 o'clock in the evening, two persons, whom he recognized as Mike Tumbagahan and a certain Tino, entered their compound and started to have an altercation with the guests. Fortunately, the Barangay Secretary, Vic Arcayna, was around and he approached the two men, and asked them not to create any scene. At this point, a shot, coming from the upper part of A. Tanzon Street was heard, creating panic among the guests. Accused-appellant immediately gathered all the guests together and herded them into his house. Nobody ventured out into the street until after some policemen arrived. 11 It was only then that accused-appellant was informed that somebody had been shot dead in the street right in front of his house. To his surprise, the policemen informed him that he had been charged by the wife of the deceased as the perpetrator of the crime. Accused-appellant acceded to the request of the policemen to go with them to the precinct for questioning. At the police station, accused-appellant was no longer interrogated but was simply detained after he executed a sworn statement in the presence of the fiscal. 12 Accused-appellant's testimony is corroborated by Victor Arcayna, the barangay secretary who, at the time of the incident, was one of the guests at Cristina's birthday party. Arcayna testified that he arrived at the Tanzon residence between 7:00 o'clock and 7:30 o'clock in the evening on November 19, 1994, accompanied by two barangay tanods. 13 Subsequently, at around 11:00 o'clock in the evening of the same day, two persons, who were later identified as Miguel Tumbagahan and Tino, arrived. Since the two persons were not invited, Arcayna approached them and cautioned them not to make trouble. As Arcayna turned to go back to his table, the two had an altercation with the guests. Panic ensued among the guests when somebody shouted, "May mga taong pababa rito, armado yon ang sabi." 14 Arcayna and accused-appellant then herded the guests into the house where everyone remained until some policemen arrived. 15 While inside the house, from the street. 16 Liza Amanos, one of the guests invited to the birthday party, testified that she and her husband were among the fourteen (14) guests who joined Cristina in the celebration. 17 At around 11:00 o'clock of the night in question, she saw two men enter the yard of the Tanzon residence. A commotion thereafter ensued and several shots were heard prompting accused-appellant to usher the guests inside his house. 18 Cristina Tanzon, the daughter of accused-appellant, who was celebrating her the night of the incident also testified that she held her party on the grounds of their house in 28-A Tanzon Street, Area Sitio, Sauyo, Novaliches, Quezon City. There were around 30 guests 19 including eight (8) children. The celebration started at

around 8:00 o'clock in the evening and proceeded smoothly with some of the guests dancing and singing. Cristina's father even lit some firecrackers to celebrate the occasion. 20 At around 10:30 o'clock in the evening, she heard a shot coming from the upper part of Tanzon Street. The next thing she saw was her father and Mr. Arcayna herding the guests into the house. Accused-appellant reportedly told the guests, "Huwag kayong lalabas, may kaguluhan sa labas." At around 12:00 o'clock midnight, she learned from a policeman that a person was killed outside. 21 Rosita Panes, a neighbor of accused-appellant, testified that from 9:00 o'clock to 11:00 o'clock on the night in question, she was in front of her house which was five (5) meters away from the Tanzon residence, watching Cristina's birthday celebration. 22 Although she was invited, she decided not to attend the party since there was no one to take care of her small children. 23 While watching the celebration in front of her house, Rosita saw some men running from the elevated portion of Tanzon Street carrying guns and shouting. When she heard some shots being fired, Rosita hurried back to her house and locked the door. 24 On June 30, 1997, the trial court rendered judgment against accused-appellant, the dispositive portion of which reads as follows: WHEREFORE, the prosecution having established the guilt of Augusto Tanzon y de los Reyes beyond reasonable doubt of the offense of Murder, this Court finds him GUILTY thereof and hereby sentences him to suffer a prison term of reclusion perpetua and to pay the costs. Accused Augusto Tanzon is hereby further ordered to pay the heirs of deceased Lemuel Juanillo the following: a) Fifty Thousand Pesos (P50,000.00) as indemnification for his death; b) Fifteen Thousand Pesos (P15,000.00) as actual damages representing expenses for his funeral services; and c) Fifty Thousand pesos (P50,000.00) as moral damages. The other claims for damages are hereby DENIED. SO ORDERED. 25 In his appeal, accused-appellant contends that the testimonies of the witnesses for the prosecution are full of inconsistencies to be worthy of any credence. According to him, Liza Quilang's testimony that he shot her husband twice with a shotgun is inconsistent with the autopsy report that the nine (9) shotgun wounds found in the body of the victim was caused by a single bullet from a shotgun commonly known as "sumpak." Accusedappellant also asserts that it would not have been possible for Paz Tumbagahan to witness the shooting incident while standing near the NAWASA tank which was located ninety (90) meters away from where the crime happened. We are not convinced. The rule is settled that in the absence of any fact or circumstance of weight and influence which has been overlooked or the significance of which has been misconstrued as to impeach the findings of the trial court, the appellate courts will not interfere with the trial court's findings on the credibility of the witnesses or set aside its judgment considering that it is in a better position to decide the question having heard the witnesses themselves during trial. 26

Accused-appellant assails the credibility of Liza Quilang saying that her testimony that he shot her husband twice with a long gun is inconsistent with the autopsy report which revealed that the shotgun wounds found on the body of the victim is caused by a single bullet from a shotgun commonly known as "sumpak." He alleges that assuming that the second shot might have missed hitting the victim, then "the victim would have scurried off at the first gunfire." An autopsy conducted on the deceased by Chief Inspector Florante F. Baltazar showed that he sustained (9) shotgun wounds and a gunshot wound, presumably, from a.38 caliber gun. 27 According to Dr. Baltazar, the nine wounds came from a shotgun because the five (5) pellets recovered are ordinarily used in a shotgun commonly known as sumpak. 28 Although there were nine (9) wounds, they were caused by a single shot which burst in different directions. Dr. Baltazar said that only five (5) pellets were recovered since the other wounds had exits. 29 It appears that the entry points of all the gunshot wounds were found at the back of the victim, consistent with Liza's testimony that her husband was shot from behind. Moreover, Liza's testimony that the companions of accused-appellant dragged the body of the deceased after he was shot is corroborated by the multiple abrasions found on the abdominal region, arms and right knee of the deceased. 30 Dr. Baltazar testified that the abrasions could have been caused by the body of the victim having come in contact with a rough surface. 31 It has also been established that accused-appellant's right hand was found to have been positive for gun powder nitrates, which could have only been caused by the firing or discharge of a gun. Mrs. De Villa, the forensic chemist who conducted a paraffin test on the accused-appellant, dismissed any possibility that the traces of gun powder nitrate on the right hand of accused-appellant could have been caused by the firecrackers he lit on the night of November 19, 1994 considering that the same traces of the gun powder nitrates can be detected only if the firecracker exploded while in accused-appellant's hands. 32 Clearly, Liza's testimony is materially corroborated by the autopsy conducted on the deceased. The most honest witness may make mistakes sometimes but such honest lapses do not necessarily impair his credibility or destroy the essential integrity of the prosecution as a whole. 33 Accused-appellant, however, dismisses the findings of the trial court that the gun powder nitrate found on his right hand is evidence of his having fired a gun. He points out that the murder weapons used, i.e., the shotgun and the handgun, were never presented by the prosecution in evidence. Accused-appellant's assertion deserves scant consideration inasmuch as the presentation of the murder weapons is not indispensable to the prosecution of the accused. Verily, the non-presentation by the prosecution of the items which the accused is charged of having armed himself with in attacking, assaulting, stoning and stabbing the victim is not fatal where the accused has been positively identified. 34 As to accused-appellant's contention that it would have been impossible for Paz Tumbagahan to have witnessed the shooting incident ninety (90) meters away from where she stood, there is nothing in the records which supports accused-appellant's assertion that the NAWASA tank was ninety (90) meters away from the place of the incident. On the contrary, the ocular inspection conducted by the trial court shows that the NAWASA tank is only forty-five (45) meters away from the place where the incident took place and it was not impossible for a person standing near the tank to have observed any incident that might have taken place on the street fronting accused-appellant's home. 35 Even if we are to disregard the testimony of Paz Tumbagahan, we are not completely left without an eyewitness to the crime because Liza Quilang was just seven arms length away from her husband when he was shot by accused-appellant. The place where the incident happened was well-lighted. Liza knew the accused-appellant since they lived in the same barangay and accused-appellant's son was said to be a friend of the deceased. Thus, she could not have been mistaken in identifying the accused-appellant as one of the men who shot her husband. Considering that accused-appellant himself admitted that he never had any misunderstanding or quarrel with the family of the deceased prior to the incident, we find no reason not to give any credence to the private complainant's testimony. 36

The testimonies of the witnesses for the defense, on the other hand, present a study in contradictions. While accused-appellant and Vic Arcayna insist that trouble started when two uninvited guests arrived at Cristina's birthday party, the birthday celebrant herself could recall no such incident. 37 It was only about three weeks later, when Cristina again took the witness stand, that she conveniently remembered the trouble that started on the night in question when the two uninvited guests arrived. 38 While a neighbor, Rosita Panes, who supposedly watched the whole celebration from 9:00 o'clock to 11:00 o'clock in the evening positively stated that Cristina's visitors were all adults, 39 the birthday celebrant herself said that eight (8) children were invited as guests. 40 While Cristina said there were around thirty (30) guests on the night in question, another witness, Liza Amatos, claimed there were only fourteen (14). The fact that the people who were supposedly present at the scene of the crime could not even agree as to the simple details relating to the incident on the night in question inevitably casts doubt on their credibility. Also, we find it strange that the Barangay Secretary has not bothered to intervene and ascertain the identity of the deceased who was shot just in front of the house where he was at the time of the incident. Admittedly, Arcayna never exerted any effort to attend to the family of the deceased who were gathered near accused-appellant's home after the commotion died down. 41 With regard to the moral damages awarded by the trial court, the sum of P50,000.00 granted to the heirs of the deceased is proper in line with the prevailing jurisprudence. 42 The trial court, however, erred in failing to award the sum of P50,000.00 as civil indemnity to the heirs of the deceased in addition to the grant of moral damages. It is settled that civil indemnity ex delicto can be awarded forthwith to the heirs of the victim by proof alone of such fact of death. 43 One final note. Cruelty can neither be appreciated as aggravating circumstance nor attendant circumstance in the case at bar since it has not been shown that accused-appellant and his companions deliberately employed means to augment the suffering of the deceased. It bears emphasis that the nature of the aggravating circumstance of cruelty lies in the fact that the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is unnecessary for the consummation of the criminal act which he intended to commit, a fact which does not obtain in the case at bar. WHEREFORE, the decision of the Regional Trial Court of Quezon City, Branch 83, in Criminal Case No. Q94-59623, convicting accused-appellant Augusto Tanzon y de los Reyes of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that accusedappellant is ordered to pay the heirs of the deceased an additional sum of P50,000.00 by way of civil indemnity. SO ORDERED. Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

G.R. No. 126124 January 20, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ZALDY P. PADILLA, accused-appellant. MENDOZA, J.: For review in this case is a decision, dated May 8, 1997, of the Regional Trial Court, Branch XLV, at Urdaneta City, Pangasinan, finding accused-appellant Zaldy P. Padilla guilty of rape and imposing on him the penalty of death. The trial court also ordered accused-appellant Padilla to indemnify the offended party, Maria Aurora B. Bautista, in the amount of P50,000.00 and to pay the costs. The evidence for the prosecution shows that at around 5 o'clock in the afternoon on April 27, 1995, Maria Aurora, a 13-year old retardate, was in the citrus farm owned by a neighbor, Jose Sagun, when accusedappellant accosted her. The latter, who is married with two children, was then 26 years old and employed by Sagun as a farmhand. Armed with a scythe and a knife, accused-appellant forced Maria Aurora to undress and lie down on the grass. As she lay on there, accused-appellant forced himself on her, saying: "Kantot tayo" ("Let's have sexual intercourse"). Maria Aurora resisted accused-appellant's advances, but she proved to be no match for him. Accused-appellant succeeded in ravishing her.1wphi1.nt Maria Aurora told her father, Engracio L. Bautista, what happened to her in the evening. She was taken to the Governor Teofilo Sison Memorial Hospital, where she was examined by Dr. Luisa F. Cayabyab. Afterwards, the matter was reported to the Pozorrubio Police Station. 1 On May 2, 1995, Engracio filed a complaint 2 in the Municipal Circuit Trial Court, Pozorrubio, Pangasinan. After a preliminary investigation, the court found probable cause that the crime had been committed and that accused-appellant was guilty thereof. Accordingly, the case was referred to the Office of the Provincial Prosecutor, Urdaneta City, Pangasinan which on May 26, 1995 filed an information 3 for rape in the Regional Trial Court, Branch XLV, at Urdaneta City against accused-appellant, the pertinent portion of which reads: The undersigned upon previous complaint sworn to by the father of the offended party accuses ZALDY PADILLA Y PILONGO alias "LABO", of the crime of RAPE, committed as follows: That on or about the 27th day of April, 1995 at Barangay Bobonan East, Municipality of Pozorrubio, Province of Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the complainant, Maria Aurora Bautista, a minor of about 13 years old, against the latter's will. CONTRARY to Article 335, Revised Penal Code. Urdaneta, Pangasinan, May 26, 1995. Upon being arraigned, accused-appellant pleaded not guilty to the charge, whereupon hearings were held on December 6, 1995, January 23, January 31, February 22, and March 27, 1996. On May 8, 1996, judgment was rendered finding accused-appellant Zaldy Padilla guilty of rape and sentencing him to death: WHEREFORE, the Court finds the accused ZALDY PADILLA Y PILONGO GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized under Republic Act No. 7659, the offense having been committed with the attendant circumstances of use of a deadly weapon,

disregard of the respect due to the offended party on account of her age, and abuse of superior strength; and hereby sentences him to suffer the supreme penalty of DEATH, to be executed pursuant to R.A. No. 8177, otherwise known as the Lethal Injection Law, and to pay the complainant MA. AURORA BAUTISTA in the amount of P50,000.00 as damages, and to pay the costs. Hence, this appeal. Accused-appellant raises this lone assignment of error: THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE AGAINST THE ACCUSEDAPPELLANT THE TESTIMONY OF THE ALLEGED VICTIM DESPITE THE FACT THAT THE LATTER IS INCOMPETENT TO TESTIFY DUE TO HER MENTAL HANDICAP. Accused-appellant's contention is without merit. First. The basic test of a witness' qualification is of course whether he can perceive and, perceiving, can make known his perception to others. 4 Negatively put, Rule 130, 21 of the Revised Rules of Court provides: The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and relating them truthfully. Hence, a mental retardate is not, by reason of such handicap alone, disqualified from testifying in court. He or she can be a witness, depending on his or her ability to relate what he or she knows. If the testimony of a mental retardate is coherent, the same is admissible in court. 5 Thus, we have in several cases 6 upheld the conviction of the accused based mainly on statements given in court by the victim who was a mental retardate. Trial courts, which have the opportunity to observe the facial expressions, gestures, and tone of voice of a witness while testifying, are competent to determine whether his or her testimony will be given credence. 7 In the instant case, the trial court accorded weight to the testimony of Maria Aurora. Indeed, the complainant's truthfulness is evident in her testimony: Prosecutor Emiliano M. Matro: Now, on April 27, 1995, between 4 and 5 o'clock in the afternoon, can you recall where you were? A: I was at the calamansi orchard. Q: Who owns that calamansi orchard? A: Tiaging. Q: What were you doing there at that time? A: I was looking for my scythe.

Q: What happened, did you find your scythe? A: I was undressed. Q: Who undressed you? A: Labo. Q: Do you know the real name of Labo? A: Zaldy Padilla. Q: If Zaldy Padilla alias Labo is now in the courtroom, can you identify him? A: That person. (The witness pointed at a person who, when asked his name, answered "Zaldy Padilla.") Q: You mentioned something about a scythe. Were you able to find it? A: It was in the possession of Labo. Q: You said that Zaldy Padilla alias Labo undressed you. What did you do after that? A: He pulled me. Judge Costales: At this point, the public is hereby directed to go outside. Close the door. Even the father and mother of the complainant should go outside. Q: After Labo pulled you, what did you do, if anything? A: He brought out a knife and tried to stab me. xxx xxx xxx Q: You were undressed at that time? A: Yes. Q: After that, what did you do? A: He told me, "Kantot tayo." Q: Did he have sexual intercourse with you? A: Yes.

Q: How did he do that with you? A: He made me lie down. Judge Costales: How about the knife? A: I bled. Q: Where did you bleed? A: Here. (The witness pointed at her vagina). Q: What did you feel while Labo was having sexual intercourse with you? A: It hurt. It was painful. Q: How long did Labo had (sic) sexual intercourse with you? A: For a short time only. Q: After that, what did he do? A: Nothing more. xxx xxx xxx Q: Will you describe the organ of Labo? A: It was big. (The witness demonstrated a length of about 4 to 5 inches) xxx xxx xxx Q: Did you scream when he inserted his penis? A: Yes. 8 The complainant's testimony is corroborated by the finding of Dr. Luisa F. Cayabyab, who examined Maria Aurora in the evening of April 27, 1995. Dr. Cayabyab found fresh lacerations in her hymen, most probably caused by the entrance of a hardened penis. 9 The relevant portions of the medical certificate, 10 dated April 28, 1995, which Dr. Cayabyab issued after examining Maria Aurora read: Perineum : no sign of external injury Hymen : with fresh lacerations at 3 and 9 o'clock positions Vagina : admits 1 finger Cervix : close

Uterus : small Spermatozoa : negative Second. During the trial, the prosecution presented evidence tending to show that Maria Aurora is a mental retardate. 11 Significantly, accused-appellant also admitted this point during his direct examination. 12 It is settled that sexual intercourse with a woman who is a mental retardate constitutes statutory rape, which does not require proof that the accused used force or intimidation in having carnal knowledge of the victim for conviction. 13 However, this fact was not alleged in the information 14 in this case and, therefore, cannot be the basis for conviction. At any rate, there is adequate evidence to show that the accused-appellant used force and intimidation in committing the crime of rape in this case. The defense makes much of Maria Aurora's admission that she did not put up a determined resistance against accused-appellant. For instance, she answered at one point that she did not fight back when accused-appellant laid her down on the grass. 15 However, the law does not impose a burden on the rape victim to prove resistance. 16 The fact that the victim did not resist the accused by struggling or shouting for help does not negate the use of force and intimidation. 17 The use of a knife and the threat of harm may be sufficient to intimidate the victim to obedience. 18 Maria Aurora, a minor, cannot be expected to react under such circumstances like a mature woman. Because of her immaturity, she can be easily intimidated, subdued, and terrified by a strong man like accused-appellant Padilla. 19 There can be no doubt that Maria Aurora was forced by accused-appellant to have sexual intercourse with him, and that she eventually submitted to him out of fear from the following answers she gave to the trial court: Q: Why did you not fight Labo? A: I was afraid, he might maul me. xxx xxx xxx Q: Where was the knife or the scythe you were mentioning at that time? A: It was in his possession, sir. Q: He was holding it? A: Yes. Q: What hand? A: Right hand. Q: Was it a knife or a scythe? A: Scythe. No, he had no scythe in his possession. Q: When he was having sexual intercourse with you? A: Yes.

Q: However, he had a knife at that time, only he laid it on the ground when he had sexual intercourse with you. A: Yes. Q: And because he had a scythe, you were afraid that he might kill you if you resist? A: Yes. 20 There are minor inconsistencies in the testimony of Maria Aurora, such as her confusion whether it was a knife or a scythe which accused-appellant placed on the grass above her head after he had forced her to lie down. However, as we have held in a number of cases, such inconsequential lapses can be expected of a young girl who was raped, in view of the harrowing experience she is called upon to recall. 21 Such minor inconsistencies, far from detracting from the veracity of her testimony, in fact tend to bolster it. 22 Third. To rebut the evidence presented against him, accused-appellant claimed that, at the time of the rape, he was in their hut preparing supper with two other farmhands. 23 One of the farmhands, Santiago Sagun, corroborated accused-appellant's claim. 24 This claim cannot prevail over the positive identification of accusedappellant. 25 In the instant case, Maria Aurora pointed out accused-appellant in open court as the person who had molested her. 26 Furthermore, for the defense of alibi to be given weight, it must be shown that it was impossible for the accused to have been present at the place where the crime was perpetrated at the time of its commission. 27 But in this case, the hut where accused-appellant claimed he was in with the two other farmhands is only a short distance from the scene of the rape. 28 Hence, the trial court correctly rejected his alibi. The trial court also correctly found that the rape was committed with the use of a deadly weapon and, therefore, the imposable penalty is reclusion perpetua to death. 29 However, it erred in appreciating the aggravating circumstances of disregard of the respect due to the victim by reason of his or her age and abuse of superior strength. Although disregard of the respect due to the victim by reason of his or her age can be taken into account where the victim is of old age as well as of tender age, 30 the same can be considered only in cases of crimes against persons and honor. 31 At the time of the rape on April 27, 1995, rape was classified as a crime against chastity. R.A. No. 8353 classifying it as a crime against persons took effect only on October 22, 1997 and cannot therefore be given retroactive effect so as to justify the consideration of disregard of the respect due to the victim by reason of his or her age. Even if such aggravating circumstance could be considered in this case, it nonetheless cannot be appreciated because nothing appears in the record from which it may be presumed that in the commission of the crime, accused-appellant deliberately intended to offend or insult the age of the offended party. 32 Nor can the aggravating circumstance of abuse of superior strength be appreciated as the trial court did, since the consideration of the same requires evidence of the relative physical conditions of the assailant and the victim, which the prosecution failed to present. 33 As the penalty for rape when committed with the use of a deadly weapon is reclusion perpetua to death, the penalty of reclusion perpetua should be imposed in the absence of any aggravating circumstances. 34 It is also to be noted that the trial court ordered accused-appellant to pay the complainant only the civil liability arising from the offense in the amount of P50,000,00. This is equivalent to actual or compensatory damages in civil law. However, in addition to such amount the offended party is entitled to moral damages, which is automatically granted in rape cases without need of any proof. Currently, moral damages for rape is fixed P50,000.00. 35 Hence, the additional sum of P50,000.00 should be awarded to Maria Aurora B. Bautista. WHEREFORE, the decision dated May 8, 1996 of the Regional Trial Court, Branch XLV, Urdaneta City, Pangasinan is hereby AFFIRMED, with the modification that accused-appellant is sentenced to reclusion

perpetua and is ordered to pay P50,000.00 to Maria Aurora B. Bautista by way of moral damages in addition to the amount of P50,000.00 which the trial court ordered accused-appellant to pay as indemnity.1wphi1.nt SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug and Kapunan, Panganiban, Martinez, Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.

G.R. No. 116281 February 8, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 ROMULO GUTIERREZ, JR., accused-appellant. MENDOZA, J.: This is an appeal from the decision, 1 dated February 15, 1994, of Branch 42 of the Regional Trial Court of Pinamalayan, Oriental Mindoro, the dispositive portion of which reads: WHEREFORE, premises considered, this Court finds accused SPO1 ROMULO GUTIERREZ, JR. guilty beyond reasonable doubt of the crime of MURDER defined and punished under Article 248 paragraph 5 of the Revised Penal Code as charged with aggravating circumstances of abuse of superior strength, that advantage was taken by the accused of his public position, and that the crime was committed in contempt of or without insult to public authority, one of which is offset by the mitigating circumstance of voluntary surrender, the imposable penalty should have been death, but said penalty was, abolished under the 1987 constitution by reason thereof, this Court sentences him to suffer the penalty of RECLUSION PERPETUA, and he is hereby ordered to pay to the heirs of Antonio Mercene, Jr. the following: 1) P50,000.00 as indemnity for the death of Antonio Mercene, Jr.; 2) P224,000.00 as compensation for the victim's loss of earning as a duly elected Municipal Councilor of Pola, Oriental Mindoro during the May 11, 1992 Local Elections; 3) P90,000.00 as reimbursement of the expenses incurred for the wake, burial and funeral services for the deceased Antonio Mercene, Jr.; 4) P150,000.00 as support in the form of expenses for education of the two (2) minor children of the deceased; 5) P100,000.00 as moral damages for the mental anguish suffered by the heirs of said deceased; and 6) to pay the costs. SPO1 Romulo Gutierrez, Jr., having been convicted of the crime of murder, the property bond posted by bondsmen Constancio Gutierrez, Virgilio Diona, and Feneta Lavalos-Diona for his provisional liberty is hereby cancelled and released, and authority is hereby given to the Acting Branch Clerk of Court of this Court to detach from the records the certificates of titles, and return them to the bondsmen, duly receipted. SO ORDERED. The information 2 in this case charged That on or about the 17th day of October, 1992 at 2:30 o'clock in the afternoon, more or less, in barangay Batuhan, municipality of Pola, province of Oriental Mindoro, Philippines and within

the jurisdiction of this Honorable Court, the above-named accused, a Police Officer, while armed with a revolver and with a decided purpose to kill, did then and there, wilfully, unlawfully and feloniously attack, assault and shoot therewith ANTONIO MERCENE JR. a duly elected municipal councilor, inflicting upon the latter a gunshot wound and multiple abrasions and laceration indifferent parts of the body which caused his untimely and instantaneous death. That in the commission of the crime, the qualifying circumstances of treachery and evident premeditation and the aggravating circumstances of abuse of superior strength, that advantage was taken by the accused of his public position, that the crime was committed in contempt of or with insult to public authorities, are attendant. Accused-appellant at first pleaded "not guilty," 3 but later, through a new counsel, withdrew his plea and moved for modification of the order of trial pursuant to Rule 119, 3(e) of the Rules on Criminal Procedure invoking his plea of self-defense. The trial court ruled that accused-appellant was actually entering a conditional plea of guilty and thus entered a plea of not guilty for him. At the same time, it denied accused-appellant's motion for a modification of the order of trial. 4 The prosecution's first witness was Dr. Alita H. Fetizanan, Municipal Health Officer of Pola, Oriental Mindoro. She testified that on October 17, 1992 at 6 p.m. she performed an autopsy on Mercene, Jr. She submitted an autopsy report (Exh. A) which contains the following findings: FINDINGS 1. Abrasion, 5 cms. in length, 1 cm. in width, above the right eyebrow, temporal side 2. Abrasion, 1.5 cms. in length, 1 cm. in width, beside the right eyebrow, temporal side 3. Abrasion 1 cm. in length, 0.5, cm. in width, 1 cm, below the second lesion 4. Linear laceration, 0.9 cm. in length, 0.2 cm. in depth lower right lip 5. Elliptical abrasion, 4 cms. in length, 1.5 cms, in width, region of the left scapula. 6. Gunshot wound, 0.4 cm. in diameter, oval in shape, edges inverted, with blackening around the gunshot wound and contusion collar, 5.5 cms. in diameter, behind the left ear. This wound is the entrance wound, penetrating the left anterolateral neck muscles, transecting the left carotid vessels, with formation of hematoma at the left lateral neck, hitting the apex of the left lung, perforating the ascending aorta and fracturing the 2nd and 3rd rib, about 3.5 cms. from the midsternal region. 7. Hemothorax, with evacuation of about 1.5 liters in the chest cavity. CONCLUSION:

That the cause of death was due to acute hemorrhagic shock secondary to gunshot wound, transecting the left carotid vessels and perforating the ascending aorta. 5 She likewise issued a death certificate (Exh. B) 6 which states the following: CAUSE OF DEATH: 1. Immediate cause: a. Acute Hemorrhagic Shock Antecedent cause: b. Gunshot wound, left post auricular The prosecution's next witness was Arnel Marasigan Aranas, a fellow member of the deceased Antonio Mercene, Jr. in the Sangguniang Bayan of Pola. Aranas knew both Mercene, Jr. and accused-appellant. He testified 7 that Mercene, Jr. was a member of the Task Force Dagat of the Sangguniang Bayan. According to him, Mercene; Jr. wrote to SP04 Romeo V. Delmo, accused-appellant's superior, charging accused-appellant with grave misconduct (Exh. C). 8 Mercene, Jr.'s complaint was based on an incident which happened on August 25, 1992. Aranas said that he and Rosie Rivas accompanied the deceased on an inspection trip along the Casiligan river in Pola because of Rivas' complaint that accused-appellant had been poaching in the area in which she had been granted the exclusive right to catch lapu-lapu. Rivas had asked Mercene, Jr. for assistance. Aranas said that they saw accused-appellant with companions at the riverbank, and that Rosie Rivas alighted from the banca they were riding on to talk to accused-appellant. Aranas said he heard accused-appellant telling Rivas, "Bakit may kasama ka pang Konsehal fry at CAFGU fry" ("Why do you have to be accompanied by a councilor and CAFGU fry")? Later, according to Aranas, they again met accused-appellant's group in the middle of the river. Accused-appellant shouted invectives at them, "Putang ina ninyo, mga Konsehal fry at CAFGU fry, masisira ang aming lambat" ("You s.o.b. Councilor and CAFGU fry. Our fishing nets are going to be destroyed"). Because of that incident, Mercene, Jr. also wrote a letter (Exh. D) 9 on September 14, 1992 to the People's Law Enforcement Board (PLEB), complaining against accused-appellant for blocking their way with fishing nets and shouting expletives at them. Aranas said accused-appellant was at that time under the influence of liquor. Continuing, Aranas testified that the deceased also filed a complaint against accused-appellant with the Philippine National Police (PNP) Provincial Command. PNP Chief Inspector Edwin I. Corvera sent for both accused-appellant and Rosie Rivas, as a result of which they signed an agreement (Exh. F), 10 dated October 16, 1992, whereby accused-appellant agreed not to catch fish within the area of Rosie Rivas' concession. In exchange, Rosie Rivas agreed not to press charges of illegal fishing against accused-appellant. But a day later, Aranas said, he learned from Rosie Rivas that accused-appellant had killed Mercene, Jr. The prosecution presented two other witnesses to the shooting: Dante Pajaron, a supplier of gravel and sand, and his helper Jose Advincula. Jose Advincula was first to testify. 11 He told the court that in the afternoon of October 17, 1992, at around 2:30 p.m., he went with Dante Pajaron to deliver gravel and sand to a certain Evelyn in Barangay Batuhan, Pola, Oriental Mindoro. While their truck was parked and he was on top of the sand loaded on it, he heard a commotion. Looking to his right, he saw two persons, one had a gun (whom he identified as accused-appellant), while the other (whom he identified as Mercene, Jr.) had none. Advincula said that while Mercene, Jr. was lighting a cigarette, accused-appellant kicked him, causing him to fall to the ground with both hands touching the ground. As Mercene, Jr. tried to stand up, accused-appellant boxed him, causing him to fall again to the ground. Again Mercene, Jr. tried to get up, but accused-appellant hit him on the shoulder, causing Mercene, Jr. to fall with his hands and knees to the ground. Accused-appellant then aimed his gun (about two inches away) towards the back of Mercene, Jr.'s left ear and fired. Mercene, Jr. fell face downwards. In fright, according to

Advincula, Dante Pajaron backed out the truck around 12 meters and then they unloaded their cargo of gravel and sand as fast as they could. Testifying in his turn, Dante Pajaron corroborated the testimony or his helper. He said 12 that while they were delivering gravel and sand, he saw two persons at his right side, around 7-8 meters away, having an argument. One of them had a gun. He recognized the person with a gun as ''Mulong" (accused-appellant's nickname). Fearing for his safety, Pajaron said he got off the truck and sought cover. Less than a minute later, he heard a gunshot. He peeped through his hiding place and saw the person with whom "Mulong" was having an argument drop to the ground. "Mulong" then went inside his house still holding the gun. Pajaron said he and his helpers then unloaded the sand from their truck and then left as quickly as they could. SPO1 Froilan Rivera of the PNP at Pola was one of the investigators. He and SP02 Ferdinand Abog and a photographer went to the scene of the crime. He said 13 that they found the deceased sprawled on the ground ("nakabulagta"). They took pictures of Mercene, Jr. (Exhs. H-H-4). 14 Together with Abog, Rivera made a sketch of the scene of the crime (Exh. J). 15 Rivera testified that they found no gun or deadly weapon on Mercene, Jr.'s person. Oscar Coballes is a crime investigator of the Criminal Investigation Service Command (CIS) stationed at Calapan, Oriental Mindoro. He testified 16 that upon the request of Mercene, Jr.'s widow, he conducted an investigation of the killing. The gun (Exh. O) which accused-appellant had surrendered was given to him. It had four bullets and one empty shell (Exh. P). Coballes prepared a report (Exh. Q). 17 which became the basis of the criminal complaint filed in the Office of the Provincial Prosecutor of Calapan, Oriental Mindoro against accused-appellant (Exh. R). 18 The widow of the deceased, Alita Patulot Mercene, testified 19 that they have two children, aged 9 and 5; that her husband was a B.S.E. and B.S.E.Ed graduate, a former teacher, and, at the time of his death, a municipal councilor receiving P6,000.00/month; that she spent P40,000.00 for the six-day wake for her husband and P50,000.00 for his coffin and funeral services; that for this case she hired the services of the private prosecutor who charged P20,000.00 for his acceptance fee and P2,000.00 for his appearance fee; that her children faced an uncertain future because of the loss of their father; and that after her husband's death, she had trouble sleeping "because it is really difficult to be alone." Accused-appellant testified in his behalf. 20 He said that at 2 p.m. on October 17, 1992, he met Mercene, Jr., "who was a little bit drunk," as he was about to leave for work. He claimed that Mercene, Jr. threatened to kill him, saying "Putang Ina mo Patrolman, papatayin kita ngayon" ("You s.o.b. Patrolman, I'll kill you now"). Accused-appellant said he raised his hands and begged the deceased for mercy, saying "Huwag po konsehal, maawa ka sa aking mga anak, at maliliit pa ang mga anak ko" ("Don't kill me Councilor. Have pity on my children, they are still so young"). He said he then turned to open the door to his house with his left hand, his right hand still raised. However, the deceased threw a box of matches at him and tried to grab his service pistol which was tucked at his waist. Accused-appellant said he held the cylinder of his revolver with his right hand. As accused-appellant and the deceased grappled for possession of the gun, they fell to the ground. According to accused-appellant, the deceased tried to put his finger on the trigger but he was not able to do so because accused-appellant had a finger inside the trigger guard. He claimed that as they were lying, his right hand was holding the barrel of the gun while his left hand was holding the right hand of the deceased. Mercene Jr.'s left hand was allegedly holding accused-appellant's right waist. Accused-appellant said he tried to point the barrel of the gun upwards, even as Mercene, Jr. tried to point it towards accused-appellant. At that point, the gun went off, hitting Mercene, Jr. on the left nape below the ear. According to accused-appellant, at that time, the deceased's finger was on the trigger. Accused-appellant said he then picked up the gun and tucked it at his waist, and stepped out towards the road. Accused-appellant saw SP04 Meynard Ramos and asked him to help him bring Mercene, Jr. to the hospital. But Ramos told him to report instead to the police station and he would take care of Mercene, Jr.

Accused-appellant reported the matter to his station commander, SP03 Rafael Tagulalap, saying that Mercene, Jr. had accidentally shot himself, and surrendered the fatal gun. Accused-appellant claimed that although he was placed inside the jail, it was more to protect him from relatives of the deceased rather than to prevent him from escaping because they believed he committed a crime. Accused-appellant denied blocking Mercene, Jr.'s passage through the river on August 25, 1992. He claimed he placed the nets to catch Fish. Accused-appellant complained that the spot report of the incident transmitted by his station to the PNP Provincial Commander in Calapan was different from the version he gave to his station commander because in the spot report it was stated that he drew his revolver and shot Mercene, Jr. as the latter was about to attack him (accused-appellant). The spot report (Exh. U) reads: FROM: OIC POLA PNP TO: PD MDO OR PNP TEXT: PPSE 1017-13 PD SPOT REPT RE SHOOTING INCIDENT PD THAT ON OR ABT 171430h OCT 1992 CMM A SHOOTING INCIDENT TRANSPIRED IN BGY BATUHAN CMM THIS MPLTY RESULTING TO THE DEATH OF ONE ANTONIO MERCENE CMM AN ELECTED MUNICIPAL COUNCILOR OF THIS TOWN CMM MARRIED CMM AND RES OF BGY BAYANAN POLA THIS PROVINCE PD INITIAL INVESTIGATION CONDUCTED BY THE ELEMENTS OF THIS STN REVEALED THAT ON SAID TIME AND DATE VICTIM WHO APPARENTLY DRUNK WITH INTOXICATION LIQUOR ALIGHTED FROM A PEDICAB JUST IN FRONT OF THE HOUSE OF ONE SPO1 ROMULO L. GUTIERREZ JR PNP IN BGY BATUHAN CMM AND WITHOUT THE KNOWLEDGE OF SID POLICEMAN ENTERED THE PREMISES OF SAID HOUSE PD AT THIS JUNCTURE CMM SUBJECT POLICEMAN WHO IS SITTING INSIDE THEIR SALA/GUESTROOM NOTICE THE PRESENCE OF THE VICTIM DOES HE CONFRONTED THE SAID VICTIM AND A HEATED ARGUMENT AROUSE BETWEEN THE TWO PD AT THIS JUNCTURE VICTIM ACTED AS IF HE WILL ASSAULT THE SUSPECT DOES SAID POLICEMAN DRAW HIS SERVICE REVOLVER CMM A .38 CALIBER WITH SERIAL NUMBER 924532 AND MADE SB CMM FROM HIS WAISTLINE AND FIRED IT AT CLOSED RANGE TO THE VICTIM CMM HITTING SAID VICTIM ON HIS HEAD NEAR THE LEFT EAR RESULTING TO THE ENSTANEOUS [sic] DEATH OF SAID VICTIM . . . . (SIGNED) OFFL: TAGULALAP, R E JR, SPO111, PNP, OIC 21 He claimed that it was actually Mercene, Jr. who pulled the trigger thus accidentally shooting himself: Bonifacio Nagulom, a copramaker, corroborated accused-appellant's account. He testified 22 that he witnessed the incident as he was on his way to the public market. The testimony of Menardo Ramos was dispensed with as the prosecution agreed that if he testified this witness would say he was the one who took Mercene, Jr. to the hospital. 23 Romelyn Merjan also testified. 24 He said that while on his way to the bus terminal, he noticed somebody cursing "Putang Ina mo, Mulong mag-away tayo" ("You s.o.b. Mulong, let's fight") even as accused-appellant, with his hands raised, pleaded, "Huwag ho konsehal maawa ka sa mga anak ko, kaliliitan pa" ("Don't councilor,

have pity on my young children"). Merjan said he noticed a gun tucked at accused-appellant's waist as he raised his hands. As accused-appellant turned away to go inside his house, Mercene, Jr. threw something at him and then tried to seize accused-appellant's gun. Both of them fell as they grappled for possession of the gun. A moment later, Merjan heard a gunshot. He noticed Mercene, Jr. trying to stand up only to fall down again. Enrique Dajoyag, a member of the Philippine National Police of Pola, testified 25 that he was the one who took down the report of the incident in the police blotter because the investigator, Alvin de Ramos, who interviewed accused-appellant, had poor eyesight. Pages of the blotter containing the report were later found missing and the Station Commander, Romeo Delmo, in a memorandum (Exh. T), 26 stated his belief that the loss of the missing pages was not accidental. However, testifying in his turn, 27 Alvin de Ramos could not recall whether he had asked Dajoyag to write the investigation report in the police blotter for him. Nor could he explain the fact that the pages of the police blotter containing his alleged report were missing. He remembered that what accused-appellant said was that Mercene, Jr. went to his house and that they had an argument and grappled for the possession of accusedappellant's firearm. On rebuttal, the prosecution presented Mercene, Jr.'s widow Alita and SP03 Rafael Tagulalap. Alita testified 28 that the Municipality of Pola is a sixth class municipality and that the salary of councilors is P7,095.00 a month. Tagulalap for his part identified the spot report (Exh. U) referred to in accused-appellant's testimony as the one sent by him to the PNP Provincial Director and said that it was in fact prepared by SP02 Alvin de Ramos. 29 The trial court found accused-appellant guilty. It noted that the witnesses for the prosecution were frank and straightforward and credible. Hence, this appeal. Accused-appellant contends that the trial court erred I. In not allowing the accused in presenting his defense in an inverted order of trial upon his counsel's motion as he invoked self-defense; II. In failing to appreciate the fact that the elements required to invoke self-defense are present in this instant case; III. In being biased in the appreciation of the testimonies of the two eyewitnesses who could have not been present at the scene of the incident. Order of Trial Rule 119, 3 of the Rules of Criminal Procedure provides: The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil case liability. (b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case. (c) The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.

(d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda. (e) However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly. Accused-appellant invokes this provision and contends that the trial court should have modified the order of the trial. The contention has no merit. To begin with, the Court understands accused-appellant's contention to be that he should have been heard first in his defense before the prosecution presented its evidence because of his plea of self-defense. The present rule is a response to the early case of Alejandro v. Pepito 30 in which we ruled that even in situations where the plea of self-defense is raised, the constitutional provision that no person shall be held to answer for a criminal offense without due process still requires that in the presentation of evidence the prosecution must go forward and present all its proof in the first instance before the accused is required to substantiate his defense because the latter is presumed innocent until the contrary is proved. The change found in the present rule is based on the theory that by pleading self-defense, the accused admits the killing and, therefore, the burden of justification is now on him. Rule 119, 3(e), however, does not require such a change in the order of trial but only allows it in the discretion of the court. This can be seen in the use of the permissive "may." At any rate, in the case at bar, although accused-appellant pleaded self-defense, he did not really admit the killing because his claim was that it was the deceased who accidentally shot himself. There is, therefore, no basis for reversing the order of trial. The burden was on the prosecution to prove that it was accused-appellant who really fired his gun at the deceased. Credibility of Prosecution Witnesses Accused-appellant assails the testimony of the principal prosecution eyewitness, Jose Advincula, claiming it to be riddled with inconsistencies showing that he did not actually witness the incident: 1. According to accused-appellant, Advincula testified that he did not know the names of the two persons he saw, yet he identified accused-appellant Gutierrez, Jr. by name as the man he saw holding a gun. Advincula's testimony is as follows: Q. Before this incident which you had witnessed, could you be able to tell this Honorable Court if you had seen Romulo Gutierrez before? A. Yes, sir. Q. Why have you seen him? A. I saw him that he is a policeman of Pola. I do not only know his name. Q. What about this Antonio Mercene, have you seen this man before the incident in question? A. Yes, sir. I know him long before. I have seen his face but I do not know his name. 31

There is no inconsistency between Advincula's testimony that he did not know the names of the persons he saw in the afternoon of October 17, 1992 and the fact that he later identified accused-appellant as the assailant. Obviously, Advincula only came to know accused-appellant's name after witnessing the incident. Even if at the time of the killing he did not know accused-appellant's name, he was familiar with the latter, having seen accused-appellant before and in fact knew that accused-appellant was a policeman in Pola. More importantly, in the courtroom, Advincula positively identified accused-appellant as the person whom he saw shoot Mercene, Jr.
32

2. Accused-appellant claims that Advincula was inconsistent because at first he testified that he could not remember whether it was Mercene, Jr.'s left or right shoulder which accused-appellant hit with his gun but later this witness said it was the left shoulder which was hit. This contention is also without merit. Advincula never said accused-appellant hit the deceased on the left shoulder. What he said was that the accused-appellant aimed his gun at the left shoulder of deceased. Here is what Advincula said: A. When Antonio Mercene was about to stand up, he was hit by the gun Romulo was holding, on the shoulder, I do not know only whether it was left or right shoulder. xxx xxx xxx Q. What happened next? A. Romulo Gutierrez shot Antonio Mercene, sir. Q. How far was Romulo Gutierrez from Antonio Mercene when he fired his gun? A. "Tutok po ang baril". COURT: Q. Where was it "nakatutok"? A. On his left shoulder, your honor. 33 3. Another alleged inconsistency in Advincula's testimony is that he said he saw the deceased and accusedappellant talking "on the road outside the house" but later he said that the two were "at the side of the road." Advincula's testimony is as follows, and it belies accused-appellant's claim that it is inconsistent: ATTY. JUNIO: Q- You said that when you were about 12 meters away from the place where the incident happened, did you notice that the two persons were just very close the door of the house? A- They were talking on the road outside the house, sir. Q- So, when Councilor Mercene was allegedly shot, he was shot on the road? A- He was slumped on the road, sir.

ATTY. JUNIO: The witness is not answering directly the question. Q- Prior to my last question, you said that the two, the deceased councilor Mercene and accused Romulo Gutierrez were on the road. So when councilor Mercene was shot, he was on the road? A- At the side of the road, sir. Q- How far to the side of the road? A- At the very side of the road, sir. 34 What Advincula actually testified to was that he saw accused-appellant talking with Mercene, Jr. on the road but that the latter was shot at the very side of the road. Indeed, this testimony is consistent with the sketch (Exh. J) 35 of the crime scene, which shows the deceased's body on the shoulder of the road and his foot about 15 inches from the road indicating that if accused-appellant and the deceased did not have their initial confrontation on the road, it was at least quite near the same. 4. According to accused-appellant, Advincula's testimony that accused-appellant was situated obliquely on the left side of Mercene, Jr.'s head when he shot the latter was belied by the testimony of the medico-legal witness Dr. Fetizanan. This is not so. Dr. Alita Fetizanan's testimony in fact corroborates Advincula's testimony. She said: It could be possible that the victim at the time he was shot was either stooping or sitting down and the assailant is positioned in such a way that he is higher than the victim. It is also possible that the assailant is located on the left posterior lateral position in relation to the victim, sir. 36 (5) Finally, accused-appellant contends that Advincula lied when he testified that the distance between the deceased's body and the wall of accused-appellant's house was 5 meters since, according to SPO1 Froilan Rivera, the distance of the deceased's body from the wall of accused-appellant's house was only 5 feet or 1 1/2 meters. Advincula's estimate regarding the distance between the place where the deceased was shot and the wall of appellant's house is from 4 to 5 meters. While this is belied by the sketch (Exh. J) 37 of SPO1 Rivera and the latter's testimony 38 to the effect that the distance between the head of the deceased and the main door of appellant's house was 59 inches, the erroneous estimate of Advincula may have been caused by fright. At all events, this is an error concerning a minor point. Far from detracting from the merit of his testimony, it in fact even bolsters its credibility for it indicates that his testimony was unrehearsed. 39 Turning to Dante Pajaron's testimony, accused-appellant contends that it is of doubtful veracity because Pajaron testified that he had two companions at the time of the shooting, Jose Advincula and Ramil de los Reyes, but in his earlier affidavit (Exh. 1) 40 he stated that a certain Teddy Boy and John-John were also with him. We have observed many times before that affidavits taken ex parte are often incomplete and inaccurate, sometimes because of suggestion and at other times because of want of suggestion and inquiries. For this reason, they are generally considered inferior to testimony given in open court. 41 Moreover, Dante Pajaron clarified during his cross-examination that Teddy Boy and John-John were with them when they were gathering sand and that they were left behind in the quarry to pile the same while he, Jose Advincula, and Ramil de los Reyes proceeded to Pola. 42

We find the findings of fact of the trial court to be in accordance with the evidence. With two credible eyewitnesses and the documentary evidence corroborating their testimonies, the prosecution has clearly discharged its burden of proving accused-appellant's guilt beyond reasonable doubt. 43 It should be added that the trial court had the opportunity to observe first-hand the demeanor and deportment of all the witnesses and its findings that the witnesses for the prosecution are to be believed over those of the defense are entitled to great weight. 44 Improbability of Defense Version Indeed, it is undisputed that accused-appellant was armed while the deceased was not. It would be foolhardy for the deceased to challenge accused-appellant while in such a position of obvious weakness. Accused-appellant claimed that Mercene, Jr. was a "little bit drunk." This circumstance, assuming it to be true, is insufficient to make him throw caution to the winds and challenge an armed adversary. Equally improbable is accusedappellant's claim that the deceased threatened to kill him and he had to beg for the latter's mercy. Accusedappellant was armed while Mercene, Jr. was not. It is hard to believe that he could be intimidated by the deceased. This is not the only improbability in accused-appellant's testimony. His narration of the alleged struggle for the possession of his gun is too detailed for a struggle that accused-appellant himself admits lasted for only a few seconds. 45 One wonders how he could remember what he was doing with his left and right hands and what Mercene was doing with his own hands. This total recall is highly improbable under the circumstances. 46 There is also the matter of the spot report transmitted by the Pola Station to the PNP headquarters in Calapan which accused-appellant himself admits is at variance with his self-defense theory as the spot report states that accused-appellant shot Mercene, Jr. because the latter "acted as if he will assault" him. Accused-appellant says he cannot understand how the spot report could differ from the story he gave to his station commander which is also the same as his testimony in the trial court. He claims that he does not know who prepared the spot report. 47 But the source of the information used in the spot report could have only been accused-appellant himself considering that he was the one who in fact reported the shooting to his station and his admission that he was still in Pola when the report was transmitted to Calapan. Finally, it is noteworthy that accused-appellant suffered no injury, not even a scratch, as a result of the incident, while the autopsy report reveals that the deceased suffered seven injuries. Yet he claims that he and the deceased fought for possession of the gun. Defendant's Liability We now come to the circumstances attending the commission of the crime. The information alleged two qualifying circumstances (evident premeditation and treachery) and three aggravating circumstances (abuse of superior strength, that advantage was taken by the accused of his public position, and that the crime was committed in contempt of or with insult to public authority). For evident premeditation to exist, the following requisites must be established: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused had clung to his determination; and (c) sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act. 48 The trial court found that there was evident premeditation based one fact that, before the shooting, there was an incident between the parties the Casiligan river, for which several-complaints were filed by the deceased against accused-appellant. Assuming that these caused ill-feeling the part of the latter, accused-appellant did not know that he would see the deceased on October 17, 1992 and, therefore, could not have planned to kill him then.

The qualifying circumstance of treachery, however, is present in the case as the two conditions for the same are present, i.e., (1) that at the time of the attack, the victim was not in a position to defend himself and (2) that the offender consciously adopted the particular means, method, or form of attack employed by him. 49 According to the eyewitness account of Jose Advincula, accused-appellant took Mercene, Jr. by surprise because the latter was lighting a cigarette when, without warning, accused-appellant kicked and boxed him, causing Mercene, Jr. to fall. As Mercene, Jr. was trying to get up from the ground, accusedappellant took aim at him and shot him near his left ear. Treachery absorbs the aggravating circumstance of abuse of superior strength so the same need not be appreciated separately. 50 Neither can the aggravating circumstance that the crime was committed with insult to public authority be appreciated as the crime was committed against the public authority himself. 51 The aggravating circumstance of taking advantage of one's public position, however, is present since the gun used by accused-appellant was the service revolver issued to him. 52 The trial court likewise erred in appreciating the mitigating circumstance of voluntary surrender in this case as it appears that accused-appellant did not really go to his station to surrender and thus save the authorities the time and trouble of arresting him but rather to merely report the incident. 53 The crime, therefore, is murder with the aggravating circumstance of taking advantage of accused-appellant's office. At the time when the crime was committed in 1992, the penalty for murder was reclusion temporal maximum to death. The presence of an aggravating circumstance would call for the imposition of the maximum penalty, i.e., death. However, in view of Art. III, 19(1) of the Constitution, the imposition of the death penalty then was prohibited. It was only on December 31, 1993 when, by virtue of R.A. No. 7659, the penalty of death was imposed for certain heinous offense; in view of the compelling necessity for imposing the supreme penalty. Accordingly, the penalty next lower to death, i.e., reclusion perpetua, should be imposed in this case. 54 Award of Damages to the Heirs Anent the award of actual damages, the Court must disallow the P90,000.00 as reimbursement for the expenses incurred for the wake, burial, and funeral services for Mercene, Jr.. Aside from the bare assertion of the widow, Alita Mercene, no evidence to prove the same was presented. The Court can only give credit for expenses supported by receipts. Here, since the actual amount of the funeral expenses was not substantiated, no award for the same can be granted. 55 The award of P150,000,00 for support for the educational expenses of the two minor children of the deceased must also be disallowed, the recipients being Mercene, Jr.'s children who are his intestate heirs under Art. 980 of the Civil Code, Art. 2206(2) of the Civil Code provides that support for education may only be demanded from a person convicted of a crime if he is obliged to give support according to the provisions of Art. 291, "the recipient [not being] an heir called to the decedent's inheritance by the law of testate or intestate succession." (Emphasis added) Although the prosecution did not present evidence to support the widow's claim for loss of earning capacity, such failure does not necessarily prevent recovery of the damages if the testimony of the surviving spouse is sufficient to establish a basis from which the court can make a fair and reasonable estimate of the damages for the loss of earning capacity of the victim. 56 In this case, Alita Mercene testified 57 that her husband was 34 years old at the time of his death and that he had B.S.E. and B.S.E.Ed degrees. Prior to his election as municipal councilor of Pola, he was a substitute teacher at Pahilahan and later a permanent teacher at Matulatula for two years. His monthly salary as councilor was P7,095.00. 58 While in her direct examination Alita Mercene testified that her husband's salary was P6,000,00, we think it proper to use the higher figure as it appears that she was recalled to the witness stand to correct her previous estimate and accused-appellant did not question the higher figure.

The deceased's loss of earning capacity would then be as follows: 59 gross less net earning capacity (x)= life expectancy x annual living income expenses (50% of gross annual income) x = 2(80-34) ___________ x [85,140-42,570.00] 3 = 30.67 x 42,570.00 = P1,305,621.90 An award of P20,000.00 as exemplary damages is also justified under Art. 2230 of the Civil Code which provides: ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. The award of moral damages and attorney's fees 60 is also justified under Arts. 2219(1) and 2206(3), and 2208(1) and (11) of the Civil Code, respectively. However, the amount of P100,000.00 for moral damages, which the trial court ordered accused-appellant to pay, is excessive, in light of the purpose for making such award, which is to compensate the heirs for injuries to their feelings and not to enrich them. An award of P50,000.00 would be adequate for the purpose. 61 WHEREFORE, the decision of the Regional Trial Court of Pinamalayan, Oriental Mindoro (Branch 42) is SET ASIDE and another one is RENDERED finding accused-appellant guilty of murder with the aggravating circumstance of abuse of public position and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of Antonio Mercene, Jr., the amounts of P50,000.00 as indemnity for his death; P1,305,621.90 for loss of earnings; P20,000.00 as exemplary damages; P50,000.00 as moral damages; and P20,000.00 as attorney's fees; and the costs. SO ORDERED. Bellosillo, Puno, Quisumbing and Buena, JJ., concur.

G.R. No. 126787 May 24, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANOLITO MONSAYAC y LABRADOR, accused-appellant. MELO, J.: Before us on automatic review is the decision of the Regional Trial Court of the National Capital Region (Branch 95, Quezon City), the Honorable Diosdado N. Peralta presiding, in its Criminal Case No. Q-95-64327, convicting herein accused-appellant of Attempted Rape With Homicide, with one aggravating circumstance, and sentencing him to suffer the supreme penalty of death. The undisputed facts show that at around 4 o'clock in the morning of December 19, 1995, the victim, MARY JANE IBIAS y UBALDE was found dead inside her room with several stab wounds on her neck, and although she was fully clothed, her shirt was pulled up revealing her breasts. Mary Jane, or Baby as she was commonly called, was living inside the motorshop of her brother, Roger Ibias, at No. 375 Quirino Highway, Sangandaan, Barangay Talipapa, Quezon City at the time of the incident. She was 20 years old and was working as a computer programmer. Also living inside the shop premises were two men, Teodorico Villarico and accused-appellant Manolito Monsayac, both helpers-mechanics of her brother. They stayed in separate living quarters, each adjacent to the other, with Baby's room in the middle. Inside accusedappellant's room is a door leading to Baby's, although said door always remained locked from Baby's side. Two days after Baby's death, or on December 21, 1995, an Information was filed against accused-appellant Manolito Monsayac charging him with the crime of Attempted Rape with Homicide allegedly committed as follows: That on or about the 19th day of December, 1995, in Quezon City, Philippines, the above-named accused, with lewd design, by means of force and intimidation, did then and there willfully, unlawfully and feloniously commence the commission of the crime of Rape directly by overt acts, by attempting to have carnal knowledge to one MARY JANE IBIAS y UBALDE who was then asleep at the time, by laying on top of her while pointing a kitchen knife on her neck, however, the said accused did not perform all the acts of execution which would produce the crime of rape by reason of some causes other than his spontaneous desistance; that on the occasion thereof, the said accused, with intent to kill, attack, assault and employ personal violence upon the person of said victim, by then and there stabbing her on the neck with the said kitchen knife, thereby inflicting upon her serious and mortal wound which was the direct and immediate cause of her untimely death, to the damage and prejudice of the heirs of the said victim.

Upon arraignment, accused-appellant pleaded not guilty and after the case was re-raffled to the court a quo, trial ensured. The evidence for the prosecution consists of the testimony of P03 Crisanto Lamsin, Senior Inspector Ma Cristina Freyra, Romeo Lascano, Atty. Engracio Icasiano, and Teodorico Villarico, which tend to establish the following sequence of events, thusly: At half an hour past midnight, on December 19, 1995, Roger Ibias and accused-appellant arrived in the Sangandaan motorshop from Bulacan where they had repaired a customer's car. At around 4 o'clock that same morning, witness Teodorico Villarico, who was sleeping in his room, was awakened by moaning sounds coming from Baby's room, crying for help - "Kuya Teddy, tulungan mo ako." Teodorico went out of his room and tried to open Baby's door by kicking it but it would not open. He then ran to the police headquarters of Sangandaan which was near the motorshop but found the policemen sleeping. So he decided to go to the house of a certain Ambet, Roger's kumpadre, who lived a few meters away from the motorshop. He woke up Ambet and the two of them proceeded towards the motorshop calling out, "Pulis! Pulis" Their cries awakened P03 Crisanto Lamsin and another policeman and they all proceeded towards the motorshop. When they were already in front of the motorshop, PO3 Lamsin asked why it was dark and accused-appellant suddenly emerged from the shell of a wrecked vehicle, naked from the waist up, wearing only denim short pants. P03 Lamsin ordered accused-appellant to switch on the light which he did. With the place illuminated, Lamsin noticed that accusedappellant was sweating profusely, although it was a chilly December morning. Lamsin saw Mary Jane's lifeless body and noticed that her T-shirt was raised up to her breasts. Without any instructions from anyone, accused-appellant suddenly ran towards Baby's room, entering through the broken door that connects his room to Baby's, and lifted Baby's lifeless body. Suspicious of accused-appellant's erratic behavior, Lamsin ordered him to put down Baby's body. He then looked around for pieces of evidence of the crime and found a knife with bloodstains wrapped with a glove, also with bloodstains, inside the kitchen of the motorshop. Lamsin likewise found a blue T-shirt beside a trash can. Lamsin also noticed several scratches on the chest of accused- appellant and blood on his right index finger. He then apprehended accused-appellant and brought him to the police station for investigation. Meanwhile, Roger Ibias had arrived and he took pictures of the room and of Baby's lifeless body, after which, he brought Baby's body to a funeral parlor and made the necessary arrangements for her internment. In the police station, accused-appellant was ordered to take off his short pants which were found to be stained with blood. Inside the pocket of his pants was a handkerchief with three holes. These were brought to the Philippine National Police (PNP) Crime Laboratory for examination and the results showed that the stains were human blood identical to that of the victim. Accused-appellant denied killing Baby. He pointed instead at Teodorico as the perpetrator of the crime. The following is his story: Accused-appellant was a helper-mechanic in the motorshop of Roger Ibias, Baby's elder brother. Roger's mother-in-law is accused-appellant's sister and a relative by affinity, he was tasked to look after Baby. The day before Baby's death, or on December 18, 1995, accused-appellant was working in the motorshop and he carried asbestos and an engine of a motor vehicle which caused scratches on his chest and a cut in his right index finger. At 12 o'clock midnight, he and Roger arrived from Meycauayan, Bulacan where they had repaired a customer's car. They proceeded to Ambet's house which was near the motorshop and had a drinking spree

until 3:30 o'clock in the morning of the following day, December 19. Roger then brought him back to the motorshop; he took off his shirt and slept in a wrecked vehicle around 4 A.M., he was awakened by a commotion people shouting, "Pulis! Pulis! He came out from the wrecked vehicle where he was sleeping and was surprised to see inside the motorshop Teodorico Villarico and Ambet with P03 Crisanto Lamsin and another policeman. Ambet pleaded with him to enter Baby's room saying, "Amang, look at Baby if you could bring her to the hospital." Teodorico likewise told him, Amang, tingnan natin si Baby." Without wasting time, he ran towards Baby's room and tried to open the door but it was locked. He then decided to enter through the adjoining door between his and Baby's room by kicking the same and destroying it. After successfully breaking open the door, he carried Baby so he could bring her to the hospital for possible treatment. PO3 Lamsin felt Baby's pulse and declared that she was already dead and should be brought to a funeral parlor instead. So he put Baby back on the floor. He was then arrested by Lamsin and detained at the police station. Accused-appellant admitted that the short pants and the T-shirt that were found at the scene of the crime were his. They were stained with blood because he carried the bloodied body of Baby, he argued. He, however, denied ownership of the bloodstained kitchen knife and glove, claiming that these were Teodorico's. He also denied that the handkerchief with three holes was his. Accused-appellant was made to sign an extrajudicial confession admitting authorship of the crime. This confession was, however, correctly discarded by the trial court because it was executed without the assistance of an independent and competent counsel as strictly required by the Constitution. The same was a ready-made confession prepared by one Atty. Engracio Icasiano whom accused-appellant did not even know. The contents thereof were supplied by said Atty. Icasiano and all accused-appellant did was to sign the same. On August 28, 1996, the trial court rendered judgment, the decretal portion of which reads: WHEREFORE, judgment is hereby rendered finding the accused Manolito Monsayac y Labrador GUILTY beyond reasonable doubt of the crime of Attempted Rape with Homicide as defined in and penalized by Article 335 of the Revised Penal Code, as amended. There being one (1) aggravating circumstance, the said accused is hereby sentenced to suffer the penalty of DEATH and ordered to indemnify the heirs of the victim Mary Jane Ibias the amounts of P50,000.00, for the death of Mary Jane Ibias; P50,000.00, as moral damages; P40,000.00, as actual damages; and P20,000.00, as exemplary damages (Article 2230, New Civil Code). The Court cannot award loss of earnings as the prosecution failed to offer sufficient evidence in the recovery of the same. The said accused is further ordered to pay the costs. IT IS SO ORDERED.

A single assigned error, the catch-all, shot-gun type of argument that the evidence of the prosecution is insufficient to prove accused-appellant's guilt is put forward by accused-appellant. It is a well-entrenched rule that even in the absence of direct evidence, conviction can be had if the established circumstances constitute an unbroken chain, consistent with each other and with the hypothesis that the accused is guilty, to the exclusion of all other hypotheses that he is not (People vs. Maliput, 252 SCRA 519 [1996). The following requisites must be met before circumstantial evidence can sustain conviction, to wit: (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 (People vs. Danao, 253 SCRA 146 [1996]; People vs. Prado, 254 SCRA 531 [1996]. In the case at hand, the circumstantial evidence leads to no other conclusion than that accused-appellant is responsible for Baby's death. Telling are the bloodstains in his short pants and T-shirt that were found to be identical with Baby's. Accused-appellant tried to explain that his T-shirt was stained with Baby's blood because he carried her purportedly to bring her to the hospital. This is not only highly improbable but also impossible, considering the fact that when he held Baby's lifeless body, he was naked from the waist up. In other words, he did not have his T-shirt on as he had earlier thrown said bloodstained shirt near a trash can plainly in an effort to conceal the same. Another piece of circumstantial evidence pointing to accused-appellant's guilt is that he had access to Baby's room as there was an adjoining door between his room and that of Baby's. While it is true that said door was locked from Baby's side, it was discovered at the time of the incident, that the hinges of the connecting door were removed from accused-appellant's side, thus allowing him easy access into Baby's room. We also take note of the fact that when first seen by P03 Lamsin immediately after Baby was killed, the scratches on accused-appellant's chest and the cut on his right index finger, were fresh. The same could not have been inflicted the day before when he was working in the shop as he alleged. The most plausible explanation is that they were caused by Baby's struggle as reflected in the post mortem report. Accused-appellant's profuse sweating on a chilly December morning is a further sign of his guilt. Accused-appellant would have us believe that it was Teodorico who killed Baby. He claimed that Teodorico had lustful designs on Baby and that the kitchen knife that was used to kill Baby belonged to Teodorico. Aside from these self- serving assertions, he had no other proof that Teodorico indeed killed Baby. Denial, if unsubstantiated by clear and convincing evidence, is negative and self serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testified on affirmative matters (People vs. Amaguin, 229 SCRA 166 [1994]). In a further attempt to exculpate himself, accused-appellant interposed the defense of alibi. Alibi is one of the weakest defenses that can be resorted to by an accused, not only because it is inherently weak and unreliable but also because of easy fabrication (People vs. Maozca, 269 SCRA 513 [1997]). Here, accused-appellant's claim that he was drinking with Roger and Ambet during the crucial hours between 12:30 to 3:30 in the morning of December 19, 1995 when Baby was killed, was not corroborated by his alleged drinking buddies. His defense of alibi necessarily falls flat on its face. Even if we were to assume for the sake of argument that accused-appellant was out drinking in Ambet's house in the wee hours of December 19, 1995, the latter's house is only a few meters away from the motorshop, hence, it was not physically impossible for accused-appellant to have been at the motorshop when Baby was killed. In fact, he was the only one found within the vicinity of the crime when Teodorico arrived with Ambet and the policemen in answer to Baby's cries for help. Well-settled is the rule that for the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time the crime was committed but that it was

likewise physically impossible for him to be at the locus criminis at the time of the alleged crime (People vs. Umali, 242 SCRA 17 [1995]; People vs. Rivera, 242 SCRA 26 [1995]). We do not, however, believe, as did the trial court, that the crime of attempted rape was proved beyond the shadow of a doubt. The only evidence that the prosecution presented to show that accused-appellant attempted to rape Baby is the fact that her shirt was pulled up, revealing her breasts. In attempted rape, the offender commences the commission of the felony directly by overt acts, but does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance (People vs. Gavarra, 155 SCRA 327 [1987]). As the evidence discloses, when Baby's body was found, she still had her panties on and her jogging pants on. The post mortem report also revealed that Baby's was "in (a) virgin state physically." There is no evidence to show that accused-appellant attempted to have carnal knowledge with the victim. Hence, accused-appellant can only be held guilty of the crime of homicide aggravated not by nighttime, as erroneously found by the trial court, but by dwelling. By and of itself, nighttime is not an aggravating circumstance. It becomes so only when (1) it is especially sought by the offender; or (2) it is taken advantage of by him; or (3) it facilitates the commission of the crime by ensuring the offender's immunity from capture. It is not especially sought when the notion to commit the crime was conceived only shortly before its commission or when the crime was committed at night upon a mere casual encounter (People vs. Cayabyab, 274 SCRA 387 [1997]). Here, other than the time of the crime, there is nothing else to suggest that accused-appellant deliberately availed himself of, or took advantage of the circumstance of nighttime. The aggravating circumstance of dwelling should, however, be taken into account. Accused-appellant killed Baby inside her room. Although the same was a makeshift room inside her brother's motorshop, said room constituted for all intents and purposes a dwelling as the term is used in Article 14(3) of the Revised Penal Code. It is not necessary, under the law, that the victim own the place. Be she a lessee, a boarder, or a bedspacer, the place is her home, the sanctity of which the law seeks to protect and uphold(People vs. Daniel, 86 SCRA 511 [1978]). Dwelling is considered an aggravating circumstance primarily because of the sanctity of privacy the law accords to human abode. According to one commentator, one's dwelling place is a sanctuary worthy of respect and that one who slanders another in the latter's house is more guilty than he who offends him elsewhere. Cuello Calon says that the commission of the crime in another's dwelling shows greater perversity in the accused and produces greater alarm. (Aquino, Revised Penal Code, Vol. I, p. 315 [1987 Ed]; People vs. Parazo, 272 SCRA 512[1997]). WHEREFORE, the decision under review is hereby MODIIFIED. Accused-appellant MANOLITO MONSAYAC y LABRADOR is hereby found guilty beyond reasonable doubt only of the crime of HOMICIDE as defined and penalized under Article 249 of the Revised Penal Code and there being one aggravating circumstance, the imposable penalty is reclusion temporal in its maximum period. Accused-appellant is, however, entitled to the benefits of the Indeterminate Sentence Law. Accordingly, accused-appellant is hereby sentenced to an indeterminate penalty ranging from Eight (8) Years and One (1) Day of prison mayor, as minimum, to Seventeen (17) Years, Four (4) Months and One (1) Day of reclusion temporal, as maximum. The awards in the amounts of P50,000.00 for death indemnity, P40,000.00 for actual damages, and P50,000.00 for moral damages are hereby AFFIRMED. We likewise uphold the award of exemplary damages in the amount of P20,000.00, the rule being that where the crime was committed with the aggravating circumstance of dwelling, exemplary damages should be awarded (People vs. Sol, 272 SCRA 392 [1997]; People vs. Esguerra, 256 SCRA 657 [1996]); People vs. Patrolla, Jr., 254 SCRA 467 [1996]; see also People vs. Maguikay, 237 SCRA 587 [1994).1wphi1.nt SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, JJ., concur. Purisima, J., is on leave.

G.R. No. 126051 January 21, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNOLD REALIN, NELSON REALIN, and EDWIN REALIN, accused. DAVIDE, JR., C.J.: Accused-appellant Arnold Realin (hereafter ARNOLD) appeals from the decision 1 of the Regional Trial Court of Tagudin, Ilocos Sur, Branch 25, in Criminal Case No. 348-T, finding him guilty of murder. The dispositive portion of the decision reads as follows: Thus we find Arnold Realin guilty of the crime of Murder and hereby sentences [sic] him to suffer the penalty of reclusion perpetua and to pay to the heirs of the victim, particularly Jesus [Leiza], the following: 1. Fifty Thousand Pesos (P50,000.00) Pesos for the death of James [Leiza]; 2. Twenty Thousand (P20,000.00) Pesos for his [interment]; 3. Fifty Thousand (P50,000.00) Pesos for his death in the hands of Arnold Realin and payable by him [sic]. The information filed on 31 October 1989 charged ARNOLD and his brothers, Nelson and Edwin Realin, with murder, which was allegedly committed as follows: That on or about the 11th day of June, 1988, in the municipality of Cervantes, province of Ilocos Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with treachery and evident premeditation and with intent to kill, did then and there wilfully, unlawfully and feloniously assault, attack and strike with an ax-like instrument one James [Leiza], thereby inflicting upon the latter mortal wounds on his body, which wounds necessarily produced the death of said James [Leizal]. 2 ARNOLD and Nelson Realin pleaded not guilty upon arraignment 3 Edwin Realin remains at large. The witnesses presented by the prosecution were Angeles de la Cruz, Perlita Candelario; Mauro Sison, Jr.; Barangay Captain Ricardo Alvister; Police Investigator Prudencio Garcia; and Dr. Gaudencio Bustillo. The witnesses presented by the defense were Tony Rapisura, Mateo Abaya, Donald Abaya, Cecilia Realin, and ARNOLD. Angeles de la Cruz testified that in the late afternoon of 11 June 1988 drinking session was going on in the house of James Leiza (hereafter JAMES) and lasted till evening. ARNOLD and Alfonso Padilla were among the guests. At about 10:30 p.m., she heard an argument between ARNOLD and Alfonso. She left her house to pacify the men in JAMES's house. ARNOLD was outside the house with Nelson Realin and some friends daring Alfonso to come out of the house. She saw JAMES angry and berating one of the men for quarreling in his house. The man, in turn, threatened JAMES, who was provoked into attacking him. However, she and two other person pacified him. JAMES told the men, "You would have your day." Minutes later, Edwin Realin and his mother arrived. The other guests had gone home by then. 4

Later that evening, while she was at home watching a mahjong session, Angeles heard a dog bark from JAMES's house, which was nine meters away from her house. She looked to the house and saw persons opening the front door. She then left her home and proceeded towards JAMES's house until she reached a canal located about five meters from the house. At that instant, she saw ARNOLD club JAMES with an ax-like instrument. She likewise heard someone mutter, "That is your end." ARNOLD had three companions, two of whom stood outside the door. She immediately returned to her house and informed the mahjong players there that something had just happened in JAMES's house. They ignored her; and Mateo Abaya, one of the mahjong players, replied that they would hold a peace talk the following day. 5 Angeles could not sleep that night. When the mahjong session ended at 4:30 a.m. the next day, she immediately visited her friend Perlita Candelario, sister of JAMES, and inquired whether the latter had seen the incident since Angeles saw her near the canal that night. Perlita just cried. Angeles advised her to fetch her father, which she did. Thereafter, neighbors and relatives arrived and called the police. Perlita was questioned by the police. She followed the police as they entered the house of JAMES where they saw the lifeless and bloodied body of JAMES. The ax was recovered from the canal. 6 Angeles admitted that she was an aunt of JAMES and a distant relative of the brothers ARNOLD and Nelson Realin. She was certain of what she saw because from where she stood there was no obstruction to her view and the place was illuminated by two kerosene lamps. 7 Perlita Candelario, whose house was eighteen meters from JAMES's, testified that in the late evening of 11 June 1988 she was in her house. ARNOLD, JAMES, Nelson Realin, Alfonso Padilla, and some others were drinking in JAMES's house. Trouble erupted, and most of the drinkers went out of the house. Nelson and Alfonso had an altercation. JAMES thus ordered them out of his house. This angered Nelson, who then threatened JAMES before stepping out. JAMES retaliated by throwing the bottles outside his house and towards the canal. Nelson, in turn, threw stones at JAMES. The neighbors, including the barangay captain, immediately arrived and pacified JAMES. While they remained inside, the brothers ARNOLD, Nelson, and Edwin repeatedly dared JAMES to come out. Minutes later, ARNOLD's group left. 8 After the commotion Perlita went out of her house and proceeded to the canal, located about thirteen meters away from JAMES's house. Her aunt, Angeles de la Cruz, was also by the canal. She then saw ARNOLD enter the house of JAMES. ARNOLD's three companions remained outside the house. ARNOLD proceeded to the toolbox and got an ax-like instrument, which he swung towards JAMES. She, however, did not see whether the weapon hit JAMES. ARNOLD and his companions then left the house. 9 Perlita claimed that she could not react because she was scared. She knew that ARNOLD usually carried a gun. The following morning, she and Angeles went to JAMES's house and saw his bloodied body inside. JAMES was already dead. She immediately searched for her father and called the police. 10 Mauro Sison, Jr., a nephew of JAMES and whose house was twenty meters away across JAMES's house, declared that in that fateful night he was in JAMES's house where a drinking spree was going on. Among those present were ARNOLD, Nelson Realin, and Alfonso Padilla. Thereafter, Nelson dared Alfonso to come out of the house. When Alfonso did, a fistfight between the two ensued. This angered JAMES, then inside his house, and he threw a bottle at them. ARNOLD and Nelson then dared JAMES to come out. However, Mauro, as well as his uncle and aunt, prevented JAMES from going out, Edwin Realin also dared JAMES to come out, and he uttered: "You [would] have your day." The guests left, and JAMES eventually fell asleep. Mauro and his uncle left JAMES alone, waited at the road, and after a few minutes, proceeded home. 11 However, just as Mauro got back to his house, he heard the dog barking, and he saw people entering the house of JAMES. He recognized ARNOLD with three other companions. ARNOLD and another entered the house,

while two others stood by the door. The group stayed for a few minutes, then left and proceeded westward, in the direction of ARNOLD's house. When Mauro awoke early next morning, he was told to fetch the police. He learned that JAMES was found dead in his home. 12 Barangay Captain Ricardo Alvister declared that he was at home on the night JAMES was killed. Prior to JAMES's death, a fight between ARNOLD and JAMES occurred. He went to JAMES's house to pacify the two, and he advised ARNOLD to go home. The following morning, he learned of JAMES's death. 13 Prudencio Garcia, the police investigator who responded to the reported death of JAMES, declared that Mauro Sison came to report the incident in the early morning of 12 June 1988. He obtained statements from Mauro, Perlita Candelario, and Erwin Leiza (father of JAMES). He took some pictures 14 of the scene of the crime. He learned that the probable suspects were ARNOLD and his brothers, Nelson and Erwin. The weapon used, an ax, 15 was recovered by JAMES's father from the canal nearby the following day. It was presented to Garcia already wiped of bloodstains. Garcia then made a report on the matter. 16 Dr. Gaudencio Bustillo was presented to interpret the report on the autopsy 17 conducted on JAMES's cadaver by Dr. Jerome V. Raceli. The latter was no longer available to testify thereon for having ceased to be employed by the hospital where the autopsy was conducted. Dr. Bustillo identified both the autopsy report and the signature of Dr. Raceli. 18 In March 1993, the prosecution formally offered its evidence. Nearly a year after, but prior to the defense's presentation of evidence, a demurrer to evidence on behalf of accused Nelson and Edwin Realin was filed with leave of court. 19 They argued that the prosecution failed to prove their participation and guilt beyond reasonable doubt, as the witnesses did not positively identify them as ARNOLD's companions at the time the latter allegedly hacked JAMES. They were thus entitled to an acquittal. In its order of I7 March 1994, 20 the trial court dismissed the case against Nelson and Edwin Realin for lack of evidence. ARNOLD offered alibi. According to him on 11 June 1988 he was on duty in the hospital from 7:00 a.m. to 12:00 noon. At around 5:00 p.m. he was in the hospital to see some friends. After the visit, he chanced upon JAMES, who invited him for a drink along the street. ARNOLD obliged. Afterwards they invited their friends from the hospital. The group bought bottles of gin and proceeded to JAMES's house. They were later joined by several friends. Among the drinkers were his brother Nelson and Alfonso Padilla. A singing session took place. When it was JAMES's turn to sing, Alfonso sang in his behalf. While Alfonso was singing, JAMES got angry and ordered the group to go home. Nelson remarked to JAMES, "How could you be like that?" Thus, they all left leaving behind JAMES with his father and Mauro Sison. When he got home at around 8:30 p.m. he heard JAMES screaming. Thereafter, his friends arrived and invited him for a visit to the hospital. He joined the group. From the hospital he went home to eat, and slept at about 9:00 p.m. He was informed of JAMES's death when he woke up the following morning. 21 ARNOLD further testified that policemen came to his place and invited him to execute a statement 22 in connection with the death of JAMES. A year later, he was arrested for the death of JAMES. He did not resist. Prior to that he remained in his hometown and continued with his work in the hospital. He saw no reason to leave town because he had no participation at all in the death of JAMES. 23 ARNOLD admitted that JAMES was a relative; as were Angeles de la Cruz, Mauro Sison, and Perlita Candelario. He denied any altercation between him and JAMES, and emphasized that it was his brother Nelson who had a misunderstanding with Alfonso Padilla. 24 ARNOLD's wife, Cecilia Realin, testified that she was at home that night of 11 June 1988. ARNOLD arrived home with some friends at about 8:00 p.m. He ate supper and slept afterwards. She awoke early the following

morning while ARNOLD remained asleep. It was then that she learned from her neighbor that JAMES had died. She was certain that ARNOLD could not have been involved because in the several times she awoke that night to nurse their baby, ARNOLD was sound asleep. 25 ARNOLD's witnesses, Tony Rapisura and Mateo Abaya, tried to discredit Angeles de la Cruz. Tony Rapisura testified that at around 5:00 p.m. of 11 June 1988 he was in the house of Angeles de la Cruz playing mahjong. The mahjong session continued until 5.00 a.m. the following day. He could not recall that Angeles left her house at any time. Neither did she mention to any of the players that an incident occurred in JAMES's house. He only learned of the death of JAMES from his wife when he got home after the mahjong session. 26 Mateo Abaya testified that he was also playing mahjong at the house of Angeles de la Cruz on the night JAMES died. He rebutted Angeles's testimony that she remarked about an incident in JAMES's house and that he replied that a peace talk would take place the following day. He only remembered her think out loud why the dogs were barking that night, to which he replied that it was only natural. He left at Angeles's house at around 5:00 a.m. the following morning. When he got home his wife informed him of JAMES's death. 27 Arnold's last witness, Donald Abaya, declared that he knew ARNOLD and JAMES, who were both his neighbors. On the night of JAMES's death he was at home with Edwin Realin. At around 8:00 p.m., ARNOLD came with Nelson Realin and some friends. They arrived after he heard persons shouting from the direction of JAMES's house. The group invited him and Edwin to the hospital to visit a friend, Mulong. They thus proceeded to the hospital. On their way, they passed by the house of JAMES where they saw Erwin Leiza and Mauro Sison. They went straight to the hospital and stayed there. On their way back home they met the barangay captain who told them, "That was enough," and advised them to go home. He learned of the death of JAMES when he woke up the following day. 28 In its decision of 26 March 1996, 29 the trial court convicted ARNOLD of murder, with evident premeditation as the qualifying circumstance. It gave credence to the testimonies of the eyewitnesses of the prosecution. It found that ARNOLD, after his quarrel with JAMES, left the latter's home but later returned and, carrying with him an ax, killed JAMES who was then asleep. After filing his notice of appeal, ARNOLD moved for the reconsideration of the decision, contending that the burden of proof beyond reasonable doubt was not satisfied and that evident premeditation was not proved. He claimed that, in any event, he was entitled to the mitigating circumstance of voluntary surrender. In its order of 10 June 1996, 30 the trial court explained that evident premeditation was present; thus: There was evident premeditation because the killer had a chance to think of what he intended to do when he failed to kill [JAMES] earlier and he went with his companions to the hospital. It was on his way back home from the hospital that he went to the house of James with the help of his relatives and friends, three (3) of them, that he decided to end James Laisa's life by hitting him with an ax-like instrument in the presence of three of his companions that caused the death of James Laisa. It rejected the claim of the mitigating circumstance of voluntary surrender because of lack of evidence. In his Appellant's Brief ARNOLD claims the trial court erred in 1. . . . FINDING ACCUSED ARNOLD REALIN GUILTY OF THE CRIME CHARGED THERE BEING NO SUFFICIENT AND CLEAR EVIDENCE TO WARRANT CONVICTION.

2. . . . GIVING MORE CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESSES WHICH WERE OBVIOUSLY BIAS [ sic] AND PREJUDICED, AND INCREDIBLE INSTEAD OF THE TESTIMONIES OF THE ACCUSED AND HIS WITNESSES WHICH WERE MORE CREDIBLE, NATURAL AND, STRAIGHTFORWARD. 3. . . . NOT CONSIDERING THE DEFENSE OF DENIAL INTERPOSED BY THE ACCUSED WHICH WERE [sic] SUFFICIENTLY CORROBORATED. ARNOLD assails the credibility of the three eyewitnesses for the prosecution, who were all relatives of JAMES. Their testimonies were contradictory in material points, particularly in that when Angeles de la Cruz informed the mahjong players that something had happened to JAMES, she failed to inform them that Perlita Candelario was also by the canal. It was only in the following morning that Angeles inquired from Perlita whether she had witnessed the incident. However, when Perlita testified she claimed that she was standing by the canal with Angeles when she saw ARNOLD swing the ax towards JAMES. Thereafter, she informed Angeles that something had happened in the house of JAMES. Also, Mauro Sison testified that for that particular night he decided to sleep at the house of his mother, Perlita. Yet, Perlita claimed that Mauro was in the house of her other brother, Alexander Cruz, whose house was also across that of JAMES. ARNOLD claims that the eyewitnesses fabricated their story if only to indict him. He imputes a bias against him by the said witnesses due to their blood relation with the victim. More significantly, he questions the immediate conduct of Angeles and Perlita after witnessing the incident. They all remained silent and did not bother to seek help, considering that it was a blood relative who was in danger of death. Their failure to immediately report the matter to anyone is contrary to human experience and behavior. Angeles's testimony that she informed the mahjong players thereafter was belied by the players themselves. Moreover, when the police investigated the death of JAMES the day after, these witnesses did not bother to reveal what they had seen. It was only two months later did these witnesses implicate him without any explanation for the delay. His arrest followed only in November 1989. In between, he remained in his hometown and continued with his job at the hospital; he never fled the place. The Office of the Solicitor General supports ARNOLD's conviction. It affirms the credibility of the witnesses for the prosecution. The fact that the eyewitnesses were relatives of the murdered victim does not necessarily impair their credibility. It debunks the argument that their testimonies were contradictory especially that both Angeles de la Cruz and Perlita Candelario positively identified ARNOLD as the assailant of the victim. It sees no reason to overturn the factual findings of the trial court, for the evidence clearly established the guilt of ARNOLD. Treachery was present because ARNOLD attacked JAMES while the latter was asleep and defenseless. Moreover ARNOLD's defense of alibi must be rejected because it cannot prevail over the positive identification of ARNOLD as the person who swung the ax, which caused the death of JAMES. We shall jointly discuss the first two assignments of error. ARNOLD disputes the sufficiency of evidence to warrant his conviction, particularly the testimony of the eyewitnesses for the prosecution which was made the basis of his conviction. He claims that the said witnesses' blood relationship with the victim taints their credibility. We are not persuaded. It is well-settled that the credibility of the witnesses is best left to the discretion of the trial court. This is so because the trial court is in an advantageous position in determining the actual conduct of the witness. Thus, as a general rule on appeal, its evaluation of the testimony of the witnesses is accorded great respect and finality in the absence of any indication that it overlooked certain facts or circumstances of weight and influence, which if reconsidered, would alter the result of the case. 31 There is no compelling reason for us to depart from this rule, as ARNOLD's arguments are not supported by the law and evidence on record.

First, blood relationship between a witness and the victim does not, by itself, impair the credibility of the witness. 32 On the contrary, relationship strengthens credibility, for it is unnatural for an aggrieved relative to falsely accuse someone other than the actual culprit. The earnest desire to seek justice for a dead kin is not served should the witness abandon his conscience and prudence and blame one who is innocent of the crime. 33 Nonetheless, it is not disputed that Angeles de la Cruz, one of the eyewitnesses who pointed to ARNOLD as the assailant, is a relative of both ARNOLD and the victim. In such a predicament we are more convinced that she could only be telling the truth for her to testify against her own relative. In the absence of any evidence that would suggest an improper motive against the said witness, we sustain the conclusion that none existed and that her testimony is worthy of credence. 34 Second, the discrepancies pointed out it the testimony of the eyewitnesses are not relevant and material enough to overturn the positive identification of ARNOLD as the person who hacked JAMES to death. While the record shows that in her affidavit 35 Angeles de la Cruz denied having informed anyone of what she had just seen while she was by the canal, such omission cannot detract from the fact that she actually saw ARNOLD hack JAMES. It bears emphasis that two eyewitnesses pointed to ARNOLD as the assailant. We have ruled that minor discrepancies in the testimony of witnesses do not affect the credibility of the said witnesses. Such inconsistencies even enhance the credibility of the witnesses, for they remove any suspicion that their testimonies were contrived or rehearsed. 36 The test is whether their testimonies agree on the essential facts and substantially corroborate a consistent and coherent whole. Third, the two-month delay in reporting the account of the eyewitnesses, while not explained by the prosecution, is not too significant as to give rise to any doubt on the veracity thereof. The belated report and the reluctance of witnesses to testify in criminal actions is a matter of judicial notice. 37 Nonetheless, a thorough evaluation of the transcript of the stenographic notes indicates that these eyewitnesses testified in a candid and straightforward manner. Perlita Candelario revealed her fear of ARNOLD. As to Angeles de la Cruz, we can only surmise that her blood relationship with both the victim and the accused prevented her from immediately reporting what she had witnessed. Besides, ARNOLD, the victim JAMES, and all the eyewitnesses were neighbors and knew each other. The dilemma faced by these witnesses certainly placed them in a compromising situation. Fourth, the failure of both Angeles de la Cruz and Perlita Candelario to immediately seek help does not necessarily deviate from natural human conduct. Fear has its bizarre way of rendering people immobile even in life-and-death situations. 38 Not every witness to a crime is expected to act reasonably and conformably under normal circumstances. Indeed, there is no standard form of human behavior when one is confronted with a strange, startling, or frightful experience. 39 Perlita Candelario explained that upon seeing ARNOLD swing the ax, she was overwhelmed with fear and could not immediately act on her own, since she was afraid of him. She knew that ARNOLD usually carried a gun. Angeles and Perlita testified that they could not sleep that evening. In fact, to satisfy her nagging curiosity Angeles sought out Perlita early the following morning and they both proceeded to the house of JAMES, albeit belatedly. Upon seeing the dead body of JAMES, Perlita sought the help of the police. 41 Verily, it cannot be gainsaid that their subsequent conduct was in accord with human experience. ARNOLD's appeal is hinged on his defense of alibi. Well-settled is the rule that alibi is the weakest of all defenses, for it is easy to contrive and difficult to disprove. The positive testimony of the eyewitnesses prevails over ARNOLD's defense of alibi. 42 For such a defense to prosper, it is not enough that he prove that he was somewhere else when the crime occurred, but he must also demonstrate that it was physically impossible for him to have been at the scene of the crime. 43 ARNOLD miserably failed to prove this point. He claimed that he was asleep at his home the night JAMES was killed.

However, the distance between his home and JAMES's was about 100 meters. 44 It would take only a few minutes to traverse said distance by foot. Nevertheless, we rule that the crime committed was homicide, not murder as found by the trial court. The qualifying circumstances of evident premeditation and treachery alleged in the information were not substantiated by the evidence on record. We disagree with the trial court's finding of evident premeditation. For it to be appreciated as a qualifying aggravating circumstance, the following requisites must exist: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the accused has clung to his determination; and (3) sufficient lapse of time between such determination and execution to allow him to reflect upon the circumstances of his act. 45 The trial court concluded that ARNOLD intended the death of JAMES but failed the first time when he and his group were pacified by the neighbors. Accordingly, it was only after his visit to the hospital did ARNOLD and his companions conspire to finish off JAMES for which reason they returned to the house of JAMES. The testimonies of the prosecution witnesses are bereft of any indication that ARNOLD intended the death of JAMES in their altercation. There was no verbal or physical threat of death at all. What took place was a simple exchange of words. Significantly, neither of the parties suffered any physical injury due to the timely intervention of concerned neighbors. In the absence of any basis arising from the testimonies of the witnesses for the prosecution, such findings and conclusions of the trial court are simply speculative and must be overturned. Thus, the finding of evident premeditation must be rejected. Neither are we are not persuaded by the argument of the Office of the Solicitor General that the killing of JAMES was attended by treachery. Treachery exists where the offender commits any of the crimes against persons employing means or methods which directly and specially insure its execution thereof without risk to himself arising from the defense the offended party might make. 46 For treachery to be present to conditions must concur: (1) the employment of means of execution that gives the person attacked no opportunuty to defend himself or retaliate; and (2) the deliberate and conscious adoption of defend himself or relaliate; and (2) the deliberate and conscious adoption of the means of execution. 47 A through study of the record shows that the last persons to see JAMES alive and asleep were Mauro Sison and Erwin Leiza. They remained outside the house. Three to five minutes later Mauro saw ARNOLD's group heading east. When it began to drizzle Mauro and Erwin eventually proceeded home, which was just twenty meters across JAMES's house. 48 When Mauro got home he noticed ARNOLD and his group back at JAMES's palce, with ARNOLD and another entering the said house. After a short while, they went out and proceeded westward. Indeed, JAMES might have been asleep when his father and Mauro left him alone. However, whether he remained asleep at the time he was killed is not established. The other witnesses limited their testimony to the fact that they saw ARNOLD swing the ax once. Angeles de la Cruz positively saw the ax hit JAMES, whereas Perlita Candelario failed to see who the intended victim was. Neither testified that JAMES was asleep, thus, casting a doubt on the matter of treachery. We reject ARNOLD's plea of voluntary surrender as a mitigating circumstance. What the record reveals is that he admitted having been arrested by the police. 49 This is not voluntary surrender as contemplated by the law. We, therefore, rule that ARNOLD is guilty beyond reasonable doubt of homicide, which is punishable by reclusion temporal under Article 249 of the Revised Penal Code. Since neither mitigating nor aggravating circumstance has been proved, the imposable penalty would be the medium period of reclusion temporal pursuant to Article 64 of the Revised Penal Code. He is, however, entitled to the benefits of the Indeterminate Sentence Law. Accordingly, ARNOLD can be sentenced to an indeterminate penalty ranging from ten (10)

years of prison mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. The award of actual damages in the sum of P20,000, representing interment expenses, is deleted for the failure of the heirs of JAMES to prove the said amount. The record is bereft of any allegation or testimony to that effect. Likewise, we delete the third award of damages of P50,000 for the death of the victim. Said award is already recognized under number 1 of the dispositive portion of the trial court's decision. WHEREFORE, the decision of the Regional Trial Court of Tagudin, Ilocos Sur, Branch 25, in Criminal Case No. 348-T is hereby MODIFIED. As modified, accused-appellant ARNOLD REALIN is found guilty beyond reasonable doubt as principal of the crime of homicide as defined and penalized under Article 249 of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty ranging from TEN (10) YEARS of prison mayor as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion temporal as maximum, with all its accessory penalties. The awards for damages in the amounts of (1) P20,000 representing interment expenses; and (2) P50,000 for the death of James Leiza in the hands of Arnold Realin under number 3 of the dispositive portion are set aside. In all other aspects, the challenged decision stands.1wphi1.nt Costs against the accused-appellant. SO ORDERED. Melo, Kapunan, Martinez and Pardo, JJ., concur.

G.R. No. 91999 February 25, 1999 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO PIAMONTE, accused-appellant.

MENDOZA, J.: This is an appeal from the decision, 1 dated December 26, 1989, of the Regional Trial Court (Branch 47) in Puerto Princesa City, Palawan, finding accused-appellant Antonio Piamonte guilty of murder and sentencing him to reclusion perpetua and to pay the heirs of the victim Benjamin Sarmiento P30,000.00 as civil indemnity and the costs. The information alleged That on or about the 17th day of September, 1988, at Barangay Pagkakaisa, City of Puerto Princesa, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, and while armed with a bladed weapon, did then and there willfully, unlawfully and feloniously assault, attack and stab therewith one BENJAMIN SARMIENTO, hitting him on the different parts of his body, thereby inflicting upon him multiple stab wounds, which were the direct and immediate cause of his death. CONTRARY TO LAW. 2 Two alleged eyewitnesses and the doctor who performed the autopsy on the deceased were presented by the prosecution in support of its case. First to testify was David Morte, first cousin of the deceased Benjamin Sarmiento. 3 Morte testified that he is a resident of Barangay Pagkakaisa, Cuyito, Puerto Princesa City; that in the evening of September 17, 1988, he asked the deceased to accompany him to the latter's cumpadre, Conrado Aryo, who owned a fishing boat; that between 8:30 and 9:00 that evening, while he, the deceased, and a certain Antonio were on their way to the house of Aryo, accused-appellant Antonio Piamonte suddenly appeared and attacked the deceased, stabbing him on the chest with a one-foot knife; that they were so shocked by what they saw that he and Antonio ran; that although it was "somewhat dark," he was able to see the stabbing because of the light coming from the place they were going to; that he had known both accused-appellant and the deceased for a long time; that accusedappellant was alone when he stabbed the deceased; and that he did not know of any quarrel between the deceased and accused-appellant. 4 On cross-examination, Morte said that his brother, Elino Morte, had been convicted of killing the brother of accused-appellant, although he claimed he bore accused-appellant and the latter's family no ill will. 5 On re-direct examination, Morte said that at the time of the incident, he and his companions were on their way to the house of the deceased's cumpadre, Conrado Aryo, when accused-appellant suddenly appeared "on the bridge coming from the house." 6 On re-cross, 7 Morte testified that when he and his companions saw accusedappellant for the first time, the latter was not yet actually holding the knife. 8 The other prosecution witness, Antonio Nito, claimed that in the evening of September 17, 1988, he and David Morte went to see the deceased to ask him to recommend them to Aryo for a job as a pumpboat operator; that they were not able to reach Aryo's house because on their way Benjamin Sarmiento was stabbed; that while he

saw the assailant, he did not recognize him because it was dark and the deceased did not call the name of accused-appellant; and that in his sworn statement (Exh. A) 9 he identified accused-appellant as the assailant based on "the shape of his body." 10 On cross-examination, Antonio Nito testified that he did not report the incident to the police "[b]ecause I have my work to do [food processing of marine products];" that the stabbing took place at an alley between two houses with no light from the houses; and that he did not know accused-appellant's motive in stabbing the deceased. 11 Dr. Rudolph Baladad, Medical Officer II of the Puerto Princesa City Health Department, also testified. He said he performed an autopsy on the deceased on September 18, 1988 and found that he had suffered two fatal stab wounds, one of which penetrated the lungs and the other, the spleen; and that in his opinion, both wounds were inflicted by the assailant while facing the deceased. He explained that there was only one knife used judging from the fact that the two wounds had the "same measurement and clean edges" and that the knife must be a double-bladed one because the edges of the wounds were cleancut, and that it must be two inches wide, and at least more than five inches long because it was able to penetrate the abdominal wall and anterior chest. 12 The autopsy report (Exh. B) prepared by him described the fatal wounds, thus: POST MORTEM FINDINGS 1. STAB WOUND, Clean-Cut Edges Measuring, about 2 inches located over the 4th intercostal space right, anterior chest wall, parallel to right nipple. 2. STAB WOUND, Measuring about 2 inches, located over the left abdomen, between the right hypochondriac region and umbilicus. 13 Dr. Baladad issued a death certificate (Exh. C) stating the cause of death to be "Shock 2 to Hemorrhage due to Multiple Stab wounds." 14 Accused-appellant Antonio Piamonte testified in his defense. He admitted stabbing the deceased twice but claimed that it was the deceased Benjamin Sarmiento and his two companions who attacked him and he merely acted in self-defense after wresting the knife from the deceased. Accused-appellant claimed that at around six in the evening of September 17, 1988, while he was home in Barangay Pagkakaisa making arrows, Benjamin Sarmiento, David Mene, and another man whose name he did not know, came and beat him up; that the three were drunk; that the deceased warned him, "Hindi kita patatagalin, papatayin kita" ("I won't let you live long, I'll kill you"); and that the three then left, but, at around nine that evening, they returned and called on him to come out; that as he refused, they dragged him out of his house and beat him, while telling him that he had only until midnight to live. Then, according to accused-appellant, the deceased drew his knife and lunged at him, but he was able to avoid the thrust and seize the knife from the deceased, and to stab the latter. Accused-appellant said he was not able to surrender the knife to the police because he threw it away. As he felt dizzy, he did not notice where he had thrown it and that he "could no longer find [the knife] because there are many seaweed's in the sea where [he] threw it."15 Accused-appellant admitted that bad blood existed between his family and that of the deceased as a result of the killing of his (accused-appellant's) brother by David Morte's brother, a first cousin of the deceased. He claimed he was not able to file a case against David Morte for the alleged attack on him because he had been put in jail. On cross-examination, accused-appellant testified that David Morte, though shorter, was bigger than he, and that the third man was also bigger; that when the three men first attacked him, Benjamin Sarmiento did not have a knife but when they returned, Sarmiento already had a knife which he tried to use against him (accusedappellant). Accused-appellant claimed he was able to get the knife from the deceased and that he only used it against the latter because he had already been badly hurt. Accused-appellant admitted, however, that he did not

report the incident to the authorities or tell the inquest fiscal that he killed the deceased in self-defense. He said he did not run when the deceased and his companions returned because "[t]hat's already my house." 16 Accused-appellant's testimony was corroborated by Juanito Araneta, whose house is just two arm lengths from that of the deceased. 17 He testified that in the evening of September 17, 1988, just after supper he heard a commotion outside his house; that when he checked, he saw accused-appellant being attacked by the deceased, David Morte, and another person whom he did not know but whose face was familiar; that he shouted at the assailants to stop but was told to shut up and mind his own business ("Huwag kang makialam dito"); that the three then went away only to come back later and call on accused-appellant to come out; that when accusedappellant came out from his house he was again beaten up; that he then saw the deceased pull out a five-inch knife, but accused-appellant was able to wrest it from the deceased; that after seeing accused-appellant get the knife, he (the witness): "was not interested anymore" in seeing what would happen next and so he went inside his house and slep; that the place where the incident took place was a walk or a bridge; and that while there were people in the neighborhood, they were asleep and it was only he who saw the incident. 18 On cross-examination, Juanito Araneta said that the first attack preceded the stabbing incident by three hours; that each of the men who assaulted accused-appellant was bigger than he; that despite this and the fact that one was holding accused-appellant while the others were boxing him, accused-appellant was nevertheless able to wrest the knife from the deceased; that he (Juanito Araneta) volunteered to testify in accused-appellant's behalf; and that accused-appellant was badly hurt in the first attack. 19 Dr. Rudolph Baladad, who testified for the prosecution, also testified for the defense. He treated accusedappellant on September 20, 1988 for the following injuries stated in the medical certificate (Exh. 1) he issued: 1. Abrasion, right madibular region 2. Pain & tenderness, neck, right side 3. Pain & tenderness Hypogastric region and testicular region. 30 Dr. Baladad opined that the injuries could have been caused "by a fall, by a mauling incident, or by a vehicular accident"; that he noticed no external injuries, hematoma, successive blows on the, body of accused-appellant but "just pain and tenderness" and "abrasion or a scratch"; that the said abrasion could be caused by one or two persons; and that accused-appellant was not limping when he came to see him. 21 On the basis of the foregoing testimonies, the trial court held that, initially, the deceased and his companions were the aggressors. One of them subjected him to fist blows, as shown by an abrasion on his neck and tenderness in other parts of his body. In retaliation for what had been done to him, he waited for the group to pass by his house again. When he saw them three hours later, accused-appellant attacked Benjamin Sarmiento with a knife. Hence, the trial court found accused-appellant guilty of murder qualified by evident premeditation and treachery. Its analysis of the testimonies of the witnesses is as follows: It appears to the Court that there is more truth to the version that the accused was first boxed or mauled by the victim or by one of his companions at about 6:00 o'clock that afternoon of September 17, 1998, and that explains why he suffered mere abrasions in his neck which, according to Dr. Rudolph V. Baladad, Sr. could have been caused by falling, or he could have been mauled by a person. Three persons mauling him would have been too much; he could have suffered extensive and more serious bodily injuries than mere abrasions. The defense exaggerated and blew up his defense clearly beyond believable proportion.

To the mind of the Court, the accused had entertained ill-feeling and grudge against the victim when the latter assaulted him earlier that day, or at about 6:00 o'clock in the afternoon of September 17, 1988, evidenced by his Medical Certificate (Exhibits "1" and "1-A") which conclusively proves that he was indeed hurt. With the injury and wounded feelings he nursed, he decided and planned to retaliate, so he armed himself with a sharp-bladed weapon and prepared for an occasion where he could vent his ire and hit back at the victim, for he could not tackle him in a frontal or face-to-face fist fight. Since he has an impelling motive to revenge and as premeditated and perfected laid out by him, which is in accord with the testimonies of the prosecution eyewitnesses, the accused waited for the victim to pass by his house that same neight or any day thereafter and when the opportunity presented itself, he grabbed it by treacherously, deliberately, suddenly and unexpectedly stabbing the victim in his chest and abdomen. He hit the delicate parts of the victim's body to insure that he gets killed without being able to defend him from the assault. The accused really intended to kill the victim as shown by the deadly weapon he used, the fatal area he hit and the repetition by which he struck him. 22 Accordingly, the trial court held: WHEREFORE, viewed from the foregoing facts, reasons and considerations and with the accused's voluntary admission that he stabbed the victim, Benjamin Sarmiento in the manner and method hereinabove described that caused his death, the Court holds and finds the herein accused, Antonio Piamonte, guilty beyond reasonable doubt of the crime of Murder charged against him by the prosecution as defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA: to pay the family or heirs of the victim civil indemnity amounting to P30,000.00; and to pay the Costs. 23 Hence, this appeal. Accused-appellant contends: I. THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPELLANT ACTED IN LAWFUL SELF-DEFENSE. II. THE LOWER COURT ERRED IN DECLARING. APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND BY IMPOSING HIM TO SUFFER AN IMPRISONMENT OF RECLUSION PERPETUA 24 Accused-appellant's contentions are without merit. I. Having admitted killing the deceased, accused-appellant has the burden of proving that he acted in self-defense by showing (1) unlawful aggression on the part of the deceased; (2) reasonable necessity of the means employed by him to prevent or repel the aggression; and (3) lack of sufficient provocation on his part in defending himself. Accused-appellant has failed to discharge this burden. A. His version of how he was able to wrest the knife from the deceased is incredible. He alleges that he fought three men, all of whom were bigger than he, with one (the deceased Benjamin Sarmiento) even armed with a knife. How despite these odds he was able to parry the knife thrust of the deceased and eventually wrest the knife from him is hard to understand. How he was able to wound his adversary not just once but twice, hitting him in vital portions of the body, although he was allegedly down, 25 is even harder to fathom. The location and the nature of the wounds (deep with clean edges) suggest that accused-appellant was not just defending himself but was actually attacking his victim with intent to kill. 26 Moreover, as held in People v. Jotoy, 27 the fact that

he threw the knife away instead of surrendering it to the authorities and reporting the incident negates the claim of self-defense. B. The defense presented a witness, Juanito Araneta, whose testimony was, if not contradictory, ridiculous. His testimony raises serious doubts as to whether he really saw the incident. Accused-appellant claims that the deceased and his companions came back at around nine in the evening in order to carry out their earlier threat to kill him 28 and dragged him out of his house because he refused to come out. Juanito Araneta's version is that "the deceased and his companions told Antonio Piamonte to come down and when he went down, they again helped each [other] in mauling [him]." 29 In his attempt to show that accused-appellant was the victim, not the aggressor, Araneta only succeeded in making his testimony incredible. Araneta testified that after seeing accused-appellant succeed in wresting the knife from the deceased he (Araneta) lost further interest in watching the fight and so went inside his house and slept. 30Later, on cross-examination, 31 he testified that he did not go to sleep; he actually went fishing. Araneta also claimed he saw the incident because he had been drawn to it by a commotion. Yet, only he heard the commotion and went out of the house to see what was going on. His neighbors, according to him, were all asleep.32 How could only he, and not his neighbors, have heard the commotion? Thus, having failed to show that he acted in self-defense, accused-appellant must be adjudged guilty of the killing of Benjamin Sarmiento. II. As already stated, the trial court found that accused-appellant had been beaten up by Benjamin Sarmiento and his group and that, in revenge, he waited for the group to pass by his house again and, upon seeing them, he assaulted Sarmiento and stabbed him twice. On the basis of this finding, the trial court held the killing to be murder, qualified by evident premeditation and treachery. It is now settled that qualifying and aggravating circumstances, which are taken into consideration for the purpose of increasing the degree of penalty to be imposed, must be proven with equal certainty as the commission of the act charged as criminal offense. 33 With respect to the qualifying circumstance of evident premeditation, the following must be shown: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused had clung to his determination; and (c) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act. 34 In this case, evident premeditation cannot be appreciated because there is no direct proof showing when accused-appellant conceived the plan to kill the deceased, that he clung to his determination to kill the deceased, and that sufficient time had elapsed between the determination and execution of the crime to allow his conscience to overcome the resolution of his will. In People v. Sol, 35 it was held that a finding of evident premeditation cannot be based on mere lapse of time. In People v. Timblor, 36 where the accused had a fistfight with the victim and after an hour, he came back with a bolo and killed his adversary, it was held that proof that after the fistfight the accused came back with a bolo cannot be considered proof that he had determined to kill his adversary. Nor could it be inferred from this circumstance that the accused had sought revenge. All that the evidence showed was that he sought his antagonist after their earlier fight. The Court reiterated earlier rulings that a qualifying circumstance like evident

premeditation must be clearly shown just as the crime itself. Every element of the qualifying circumstance must be shown beyond reasonable doubt and cannot be left to speculation. On the other hand, treachery requires proof of the following: (1) the employment of means of execution which gives the person attacked no opportunity to defend or to retaliate; and (2) that said means of execution were deliberately or consciously adopted. 37 In this case, while the main prosecution witness David Morte testified during his direct examination that accused-appellant "suddenly appeared and suddenly stabbed" the deceased, on cross-examination he admitted that they saw accused-appellant when they were "still very far" although they did not then recognize him. We are not prepared to say that the stabbing of the deceased was sudden, unexpected, and unforeseen. 38 Nor is there proof that he employed such means as would ensure the commission of the crime without risk to himself since he knew that the deceased had two companions with him, both of whom were bigger than he (accusedappellant) while all he had was a knife. There was thus no qualifying circumstance, so that the crime committed was homicide, the penalty for which under Art. 249 of the Revised Penal Code is reclusion temporal. As there was no modifying circumstance (either aggravating or mitigating), the penalty should be fixed in its medium period. In accordance with current jurisprudence, the death indemnity should be raised from P30,000 to P50,000.00. 39 WHEREFORE, the decision of the Regional Trial Court of Puerto Princesa City (Branch 47) is MODIFIED and accused-appellant Antonio Piamonte is hereby found guilty of homicide and sentenced to suffer a prison term of 10 years of prision mayor, as minimum, to 17 years and 4 months of reclusion temporal, as minimum, and to pay the heirs of the victim Benjamin Sarmiento P50,000.00 as death indemnity and the cost. SO ORDERED. Bellosillo, Puno, Quisumbing, and Buena, JJ., concur.

G.R. No. 113787 January 28, 1999 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CEFERINO GUILLERMO, accused-appellant. MENDOZA, J.: This is an appeal from a decision 1 of the Regional Trial Court of Alfonso Lista, Ifugao finding accusedappellant Ceferino Guillermo guilty of murder complexed with frustrated murder and sentencing him to suffer the penalty of reclusion perpetua and to indemnify Michael de la Cruz and the heirs of Ronnie de la Cruz, and to pay the damages. The information against accused-appellant alleged That on or about 8 o'clock in the evening of December 15, 1991, at Barangay Uban, Aguinaldo, Ifugao Province, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and with the use of treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously shot Ronnie de la Cruz which caused the instant death of the latter which bullet perforated the body of said victim and hit Michael de la Cruz which would have caused his death were it not for the timely medical treatment rendered to him. In its decision, the trial court found the following facts: Accused-appellant Ceferino Guillermo is a second-degree cousin of the deceased Ronnie de la Cruz. 2 Before her marriage to accused-appellant, Carmen Guillermo and deceased Ronnie de la Cruz were friends. After the marriage, accused-appellant suspected Carmen to be carrying on an illicit relationship with Ronnie de la Cruz. 3 For this reason, accused-appellant harbored a grudge against Ronnie, Ronnie's father, Eusebio de la Cruz, Sr., tried to reconcile the cousins and sought the help of Barangay Chairman Carlos Dinamman, but their efforts were unsuccessful. 4 In fact, accused-appellant and deceased had an altercation because of some utterances made by the latter. 5 To prevent a similar incident, Eusebio de la Cruz, Sr. sent his son Ronnie to live with the latter's aunt in Tubtubob, Alfonso Lista, Ifugao. 6 The elder de la Cruz feared for the life of his son. After a year, however Ronnie returned home to help his father tend their farm. 7 On the evening of December 15, 1991, at around 8 o'clock, a fellowship wars held in the premises of the Pentecostal Church of Ubao, Aguinaldo, Ifugao. 8 Among those present were Ronnie de la Cruz, Eusebio de la Cruz, Jr., Michael de la Cruz, and Jeny Bumagat. Ronnie and Michael de la Cruz went out of the church to relieve themselves. 9 But after doing so, they did not go back and just remained outside. Suddenly, accused-appellant appeared and shot Ronnie point blank with a Garand rifle. 10 Ronnie was hit on the right breast and the upper part of his thigh. 11 The two bullets which hit Ronnie also hit Michael, who was two meters behind him. Michael was hit on the back and the left leg. 12 In convicting accused-appellant, the trial court relied on the testimonies of witnesses who pointed at accusedappellant as the person who shot and killed Ronnie. The first witness, Michael de la Cruz, testified that Ceferino Guillermo shot Ronnie de la Cruz. 13 Another witness, Eusebio de la Cruz, Jr., also pointed out accusedappellant as the one who shot and killed Ronnie and wounded Michael. 14 The court also considered the testimony of Darlina Guillermo who testified that when she heard the gunshots she ran towards the church to find out the cause of such gunshots. On the way, she met accused-appellant

running from the church towards his house. He had a long gun and was followed by his white dog. Darlina said that upon reaching the church, she found Ronnie dead on the ground. 15 On the other hand, SPO3 Delfin Bullan testified that accused-appellant surrendered the Garand rifle used by him in shooting Ronnie and Michael de la Cruz and that the rifle had been issued to accused-appellant as member of the Citizen Forces Geographical Unit (CAFGU). 16 The trial court dismissed allegations that the witnesses, Darlina Guillermo, Michael de la Cruz, and Eusebio de la Cruz, Jr., were biased because of their relationship to the deceased, pointing out that accused-appellant is likewise related to these witnesses. The lower court said it could not find any reason why the witnesses would falsely testify against accused-appellant. The trial court likewise rejected accused-appellant's claim that at the time of the commission of the crime he had to be brought home by Vicente Bilagot because he was drunk. Noting that alibi could easily be fabricated, the trial court stated that it does not suffice for accused-appellant merely to prove that he was at some other place at the time of the killing but likewise that the place where he was allegedly was so far as to preclude the possibility that he could be at the scene of the crime at the time of the killing. Accused-appellant failed to show this, according to the trial court, since the place where he allegedly was at the time of the commission of the crime was only a stone's throw away from the church where the killing took, place. Hence, it was hot impossible for him to be at the scene of the crime. Moreover, it was held that alibi could not prevail over the positive identification of accused-appellant by the prosecution witnesses. Accordingly, the trial court found accused-appellant guilty of murder complexed with frustrated murder and sentenced him as follows: AS A CONSEQUENCE OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable doubt of the crime of Murder complexed with Frustrated Murder provided for and penalized by Article 248 of the Revised Penal Code in relation to Article 6 and 48 of the same Code, and hereby sentences him to reclusion perpetua, together with all the accessory penalties provided for by law, to pay the heirs of Ronnie de la Cruz the sum FIFTY THOUSAND PESOS (P50,000.00) and EIGHTEEN THOUSAND PESOS (P18,000.00) as actual expenses for the wake and burial of the victim, to pay Michael dela Cruz ONE THOUSAND FIVE HUNDRED PESOS (P1,500.00) as medical expenses, incurred for his medical treatment, without however, subsidiary imprisonment in case of insolvency, and to pay the costs. Hence, this appeal. I. First. Accused-appellant questions the credibility of the prosecution witnesses. He points out that Michael de la Cruz did not immediately give a statement to the authorities regarding the incident and testified only after one (1) year and three (3) months had elapsed from the time of the incident. Accused-appellant cites cases 17 to the effect that the delay in reporting a crime to the authorities, not caused by threat, intimidation, or coercion, renders the testimony of the person doubtful, and should not be given weight. Accused-appellant further contends that the testimony of Michael is inconsistent in material points as shown by the fact that during his direct examination, Michael said he and Ronnie de la Cruz were outside the church when Ceferino Guillermo shot them, but on cross-examination, he claimed they were inside the church when this happened. With respect to the testimony of Darlina Guillermo, accused-appellant points out that this witness claimed she saw a person fleeing from the scene of the crime and she was certain it was accused-appellant because of the

dog accompanying him. Accused-appellant says the assailant may be identified by his face, his physical features, or his voice, but not by the dog he keeps in his company. 18 The testimony in question reads: 19 Q: You said you recognize him because of his dog, what about his face did you not see his face? A: I know that he was the one because whenever he moves, his dog follows him. Q: My question is, were you able to recognize his face when you met him? A: I did not recognize his face but I only know him because of his dog. Q: And on December 15, 1991, what is the condition of the night, was it dark or bright? A: Bright, sir. Q: And when you met somebody you did not recognize the face of the person you met, is that correct? A: Even if I did not recognize, I recognized his dog. Anent the testimony of Eusebio de la Cruz, Jr., accused-appellant contends that it should not be given credence because according to this witness his brother's assailant was wearing a bonnet which covered his entire face, and therefore the witness could not have recognized the culprit. Accused-appellant claims that both Darlina and Eusebio Jr. are biased witnesses because they are related to both Ronnie and Michael de la Cruz, Eusebio Jr. was the brother of the deceased, while Darlina was his aunt, being the sister of his father. Accused-appellant points to the fact that a prosecution witness, Rogelio Guillermo, retracted his sworn statement after alleging that he had been induced to testify for the prosecution after being promised P5,000.00 by Eusebio Sr. These contentions are without merit. 1. Accused-appellant says Michael de la Cruz kept quiet about what he allegedly knew for more than a year before he finally testified in court and gave no statement to the police immediately after the incident. We have several times before held that the failure of witnesses to volunteer information to law enforcement officers does not necessarily impair a witness' credibility. 20 Part of the reason for this is the reticence and fear of some people of getting involved in a criminal case. Moreover, during the trial of the case, the defense did not raise this question. If the defense thought this matter important, it should have raised it during the trial, particularly during the cross-examination of Michael de la Cruz. This is important because there could be an explanation for Michael de la Cruz' silence for over a year before finally testifying. It could be that Michael was just a minor, nine years of age at the time of the incident and was prevented from saying anything in public by his parents. Anent the claim that Michael gave inconsistent testimony, we hold that such is not the case. As already stated, Michael was a young boy. At the time of the incident he was only eight (8) old. When he testified in court, he was just ten (10). Michael had not gone beyond Grade III. Given these facts, it is not unlikely that he committed

the inconsistencies concerning the exact place where he and Ronnie de la Cruz were when they were allegedly fired upon by accused-appellant, i.e., whether they were inside or outside the church. What is important is that Michael was himself wounded when Ronnie de la Cruz was shot. Michael saw the person who shot them and he pointed to accused-appellant as the assailant. It is noteworthy that although he said during the cross-examination that he was inside the church when the accused-appellant fired at them, thus contradicting his earlier statement during the direct examination that they were then outside the church, Michael corrected himself and said that he and Ronnie de la Cruz were actually shot outside the church. This is what Michael said: 21 Q What about you, what were you doing there near Ronnie dela Cruz at the time of shooting incident? A I was sitting down, sir. Q Sitting down on a chair or wood? A I was sitted (sic) on a chair, sir. Q You said that you were outside of the church, were there chairs outside of the church at night? A I was sitting inside the church, sir. Q You were inside the Pentecostal church at the time of the shooting incident? A Yes, sir. Q Who was near you inside the church when there was shooting incident? A It's manong Ronnie, sir. Q And Ronnie was also sitting in the church at the time of the shooting incident, is that correct? A No, sir. Q Which is then correct, Ronnie was sitting besides (sic) you at the time of the shooting incident or Ronnie was outside of the church? A He was outside of the church during the shooting incident, sir. Q And you were also inside of the church at the time of the shooting? A No, sir. COURT: Q Where were you then, when you were shot? A I was outside the church, sir.

This inconsistency on a minor point aside, Michael was steadfast in his assertion that it was accused-appellant who shot Ronnie de la Cruz. He testified: 22 ATTY. PINE: Q But to my previous question witness, you said that you felt pain, in your left thigh and that Ronnie dela Cruz already dead, did I get you right? A Yes, sir. Q And you were 2 meters away from him? A Yes, sir. Q With the distance of two meters away from Ronnie dela Cruz, will you tell the Court why Ronnie dela Cruz died? A Yes, sir. Q Why? A Ceferino Guillermo shot him, sir. In several cases, 23 this Court has held that the testimonies of children of sound mind are likely to be more correct and truthful than those of older persons. As already noted, the alleged contradictions being raised by the defense can be considered minor inconsistencies which do not affect Michael's credibility. On the contrary, they may even tend to strengthen it. 24 Such inconsistencies could reasonably be attributed to his tender age and the fact that he is a bit mentally slow. For that matter, when asked where Ronnie de la Cruz was, he said Ronnie was at home in Ubao when the fact was that the latter was already dead by then. Witness the following portion of his testimony: 25 ATTY. PINE: Q Did, you not say awhile ago that he [Ronnie de la Cruz] is in Ubao, Aguinaldo, Ifugao? A Yes, sir Q Where at Ubao? INTERPRETER: (Witness did not answer.) PROSECUTOR BAGUILAT: At this juncture your Honor, we pray that the witness is a minor and we can find that his mentality is very low. COURT:

Q You said that Ronnie dela Cruz is now in Ubao. In Ubao, is he staying in a house where somewhere else? A He is at a house, sir. Q Did you not say awhile ago that Ronnie dela Cruz is buried and on top of his grave is a roofing? A There is a roofing, sir. Otherwise, the testimony of Michael is reliable. 2. As for the claim of accused-appellant that the testimony of Darlina Guillermo is unreliable because it is based on mere conjecture, drawn from the fact that the person she saw fleeing was followed by accused-appellant's dog, the said testimony can be considered corroborative of the testimonies of the other witnesses who positively identified accused-appellant. These were Eusebio de la Cruz, Jr. and Michael de la Cruz. It is not unlikely that Darlina recognized the man through the dog which was following him, because unless it is chasing the man, a dog usually follows his master. 3. Accused-appellant contends that Eusebio de la Cruz, Jr.'s testimony should not given weight. Accusedappellant wonders how Eusebio Jr. could have recognized the assailant if his face was covered by a bonnet. As Eusebio Jr. said, however, he was able to identify accused-appellant because he and accused-appellant had been childhood friends and neighbors. Thus he testified: 26 Atty. Tabangay: Q: So with the bonnet, you did not recognize the person of the accused that night? Eusebio dela Cruz, Jr.: A: I can, sir we have been childmate and neighbor (sic). Q: Do you think your strength of seeing will not make a mistake in identifying a person under that circumstances being night time and he is even wearing a bonnet? A: Yes, sir, I can still recognize him. On re-direct, it was established that he and accused-appellant are even second-degree cousins. Clearly, Eusebio, Jr. was quite familiar with accused-appellant. 27 4. Accused-appellant makes much of the fact that one of the witnesses of the prosecution, Rogelio Guillermo, retracted his sworn statement when called to the witness stand. Guillermo testified that he was promised P5,000.00 in exchange for his sworn statement pointing to accused-appellant as the author of the crime. However, according to Guillermo, he repudiated his statement because Eusebio de la Cruz, Sr., the father of the deceased, requested him to testify in addition to making the sworn statement. Be that as it may, even discounting the testimony of this witness, there were other witnesses who pointed to accused-appellant as the person who had shot Ronnie de la Cruz. Their positive, identification of the accused-appellant was sufficient to convict the latter.

We also note that although the crime happened during the night, it was established that the place where the shooting took place was well-illuminated. The moon was shining and there were two petromax lamps in the church. 28 There is thus no question that the prosecution witnesses could easily have seen the incident and identified the assailant. Second. Accused-appellant questions the qualification of some of the prosecution witnesses. He points out that Darlina and Eusebio Jr. are related to the deceased. This fact does not, however, necessarily make them biased witnesses. As the trial court noted, for that matter accused-appellant is likewise related to these witnesses. Be that as it may, it is settled that in the absence of a showing of improper motive on the part of witnesses, their testimonies are not affected by their relationship to the victim. 29 Third. Accused-appellant finds fault in the prosecution's attempt to establish jealousy on the part of accusedappellant as possible motive for him to commit the crime, considering the prosecution's claim that accusedappellant was positively identified as the assailant. This contention is without merit. Although proof of motive is unnecessary where there is a positive identification of the accused, 30 the establishment of motive even though there has already been positive identification does not put in doubt such positive identification. In this case, proof of motive in fact strengthens the case against accused-appellant by reinforcing the prosecution witnesses positive identification. It was pointed out by the prosecution that accused-appellant was extremely jealous of Ronnie de la Cruz since he believed that the latter and his wife Carmen, who had been friends even prior to accused-appellant's marriage to his wife, were having an affair. Moreover, accused-appellant and Ronnie had a history of altercations, culminating even in a confrontation before the Barangay Captain. Clearly, there was bad blood between them and there was no other person with so clear a motive as accused-appellant. II. The accused-appellant contends that the trial court erred in convicting him of murder complexed with frustrated murder when the crime should have been homicide complexed with frustrated homicide. Accused-appellant contends that there is no treachery in this case because the attack was frontal. He cites 31 cases to the effect that there is treachery if the attack is from behind. The fact that treachery may be shown if the victim is attacked from behind does not mean it cannot also be appreciated if the attack is frontally launched. The requisite for treachery are (1) that, at the time of the attack, the victim was not in a position to defend himself and (2) that the offender consciously adopted the means, method, or form of attack employed by him. 32 The first requisite is present in this case because the facts show that the deceased was shot while he was attending a church fellowship, totally unaware that harm was impending when accused-appellant appeared from nowhere and then fired at him at close range. The victim was completely taken by surprise, Though made face to face, the attack was sudden and was made in a most unlikely place, thus practically leaving the victim at the mercy of the assailant. The second requisite is also present. There is no question that accused-appellant consciously adopted the particular means, method, or form of attack employed by him. The fact that he was wearing a bonnet which effectively covered his face when he attacked the deceased showed preparation to ensure the accomplishment of the crime. Accused-appellant also contends that there is no evident premeditation in this case because there was no evidence presented to prove that the accused-appellant "coldly and calculatingly" planned to kill the deceased. The fact that the accused-appellant may have been driven by jealousy is not enough to prove evident premeditation.

We agree with the accused-appellant. The trial court did not explain why the qualifying circumstance of evident premeditation was appreciated. To appreciate this circumstance, the following requisites must be shown: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; (3) a sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act. None of these was shown. There was no evidence presented showing the time when the accused-appellant decided to commit the crime. The date and, if possible, the time, when the offender determined to commit the crime are essential. In this case the prosecution evidence mainly dealt with the actual shooting without showing the events prior to the incident, which could show whether accused-appellant had determined and planned to commit the crime. The only evidence the prosecution presented was the alleged altercation between accused-appellant and the deceased before the barangay chairman. That took place, however, about four (4) years prior to the incident in question. Hence, it cannot be considered essential to the establishment of evident premeditation. Anent the second requisite, the prosecution also failed to prove acts indicating that accused-appellant had clung to his original determination. The fact that he was carrying a gun prior to and during the incident cannot be considered the "act" contemplated by law. He was a member of the CAFGU and that was the reason he was carrying a gun. In fact, according to prosecution witness Darlina Guillermo, accused-appellant was always carrying a gun. 33 The carrying of arms, if customary, does not indicate the existence of the second requisite. 34 Since the first requisite, i.e., time when the offender determined to commit the crime, has not been shown, the third requisite, i.e., that there be a sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act, cannot be determined. On the basis of the foregoing, we hold that evident premeditation had not been established in this case. Nevertheless, since the qualifying circumstance of treachery is present in this case, the crime remains to be murder complexed with another offense. The evidence shows that Michael de la Cruz was only eight at the time of the incident and suffered from two gunshot wounds. There is no denying that the wounds wound have resulted in the death of the victim had it not been for the proper medical attention given to him. It cannot be said of the crime committed against him, however, that it was qualified by treachery since he was hurt solely because he was at the wrong place at the wrong time. Thus, in killing and injuring two people, accusedappellant committed two grave felonies. Since they were the result of one single act, a complex crime was committed that of murder with frustrated homicide. 35 Art. 48 of the Revised Penal Code provides: Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be allied in its maximum period. (As amended by Act No. 4000.) The penalty for the complex crime of murder with frustrated homicide, in accordance with this provision, is death. However, in 1991, when the crime was committed, the imposition by the courts of the death penalty was prohibited in view of Art. III, 19(1) of the Constitution. It was only on December 31, 1993 when, by virtue of R.A. No. 7659, the penalty of death was imposed for heinous offenses. Accordingly, the penalty next lower to death, i.e., reclusion perpetua, should be imposed. To justify an award of actual damages, there must be competent proof of the actual amount of loss. Credence can be given only to claims which are duly supported by receipts. 36 In this case, both the P18,000.00 being claimed by the family of the deceased Ronnie de la Cruz as death expenses (actual damages) and the P1,500.00 being claimed by the injured Michael de la Cruz as hospital expenses (actual damages) were not supported by proper receipts. Hence, these items should not be allowed.

WHEREFORE, the decision of the trial court is AFFIRMED with the modification that the accused-appellant is found guilty of the complex crime of murder with frustrated homicide and the award for actual damages in the amount of P18,000.00 in favor of the heirs of the deceased and P1,500.00 in favor of Michael de la Cruz is deleted.1wphi1.nt SO ORDERED. Bellosillo, Puno, Quisumbing and Buena, JJ., concur.

G.R. No. 125318 April 13, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HILARIO REBAMONTAN alias "AYONG," accused-appellant. PANGANIBAN, J It is an elementary rule in criminal law that where two indivisible penalties are prescribed for an offense and there are neither mitigating nor aggravating circumstances in the commission of the crime, the lesser penalty shall be applied. Article 248 of the Revised Penal Code, as amended, prescribes the penalty range of "reclusion perpetua to death" for murder. There being no generic aggravating circumstance present in the case at bar, the trial court erroneously imposed the death penalty upon the appellant. The Case Before us for automatic review is the February 8, 1996 Decision 1 of the Regional Trial Court, Branch I 2 of Borongan, Eastern Samar, finding Hilario Rebamontan alias "Ayong" guilty of murder beyond reasonable doubt, for which it sentenced him to death. The Information 3 dated May 25, 1994, signed by Second Assistant Provincial Prosecutor Rosendo C. Tejero Jr., charged accused-appellant as follows: That on April 22, 1994, at about 6:00 o'clock in the evening, at Barangay No. 3, Poblacion San Julian, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with evident premeditation and treachery, did then and there wilfully, unlawfully and feloniously attack, assault, stab and wound PEDRO CAGRADO, JR., with the use of [a] sharp bladed weapon (Depang), which the accused provided himself for the purpose, thereby inflicting injuries upon the latter, which injuries caused the death of Pedro Cagrado, Jr., to the damage and prejudice of the heirs of the victim. Upon his arraignment on July 18, 1994, accused-appellant, assisted by counsel, pleaded not guilty to the above charge. 4 After trial in due course, the court a quo found him guilty and sentenced him thus: 5 WHEREFORE, IN VIEW OF THE FOREGOING FACTS AND CIRCUMSTANCES, Accused HILARIO REBAMONTAN is hereby found guilty of the crime of murder defined and penalized by Section 6, of R.A. No. 7659, otherwise known as "An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, and for other purposes." Accordingly, Accused HILARIO REBAMONTAN is hereby sentenced to suffer the maximum penalty of [d]eath and to indemnify the heirs of PEDRO CAGRADO, JR. the sum of FIFTY THOUSAND (P50,000.00) PESOS, for his death and to pay the cost. xxx xxx xxx The Facts Version of the Prosecution The solicitor general presents the antecedent facts as follows: 6

Around 6:00 in the evening of April 22, 1994, Lucas and his neighbors, Maria Nena Aguilar, Raul Mendova and Julian Balbaboco were conversing at the corner of Jacinto and Mabini Street[s], Poblacion, San Julian, Eastern Samar (tsn, November 29, 1994, p. 3; tsn, January 18, 1995, p. 4). About thirty (30) meters away was a basketball court (tsn, November 29, 1994, p. 5). While his attention towards the direction of the basketball court, Lucas suddenly saw appellant stabbing Pedro Cagrado, Jr. with a small sharp bolo, locally known as "dipang" (tsn, November 29, 1994, p. 3). Appellant was initially positioned behind Pedro, but when the former was about to thrust the bolo, the latter turned around and was hit in the right chest just below his right nipple (ibid., p. 4; tsn, January 18, 1995, pp. 21-22). Pedro was not able to parry the thrust because he was not aware that appellant intended to injure him (tsn, January 18, 1995, pp. 2223). Appellant used his left hand in stabbing Pedro (tsn, November 29, 1994, p. 4; tsn, August 8, 1995, p. 4). Oozing with blood, Pedro ran towards the direction of Lucas and company (tsn, November 29, 1994, pp. 4-5; tsn, January 18, 1995, p. 17; tsn, August 8, 1995, pp. 4-5). Appellant gave chase (tsn, August 8, 1995, p. 4). As Pedro reached the house fence of Lucas, he fell and died (tsn, January 18, 1995, p. 8; tsn, August 8, 1995, p. 5). Thereupon, appellant stopped and headed towards the direction of Barangay 3, Campalao, San Julian, Eastern Samar (tsn, January 18, 1995, p. 17). Lucas then frightfully went inside his house (ibid.). Meanwhile, Nina Cagrado, Pedro's cousin, informed SPO4 Nandino Doligon, a neighbor, about the incident (tsn, November 27, 1995, p. 37). SPO4 Nandino immediately responded and went to the scene of the incident (ibid., p. 38). He was informed by the people around that appellant was on Lakandula Street, Poblacion, San Julian, Eastern Samar (ibid., pp. 38-39). SPO4 Nandino proceeded there but did not see appellant (ibid., p. 44). Nonetheless, appellant was subsequently arrested on Burgos Street and brought to the municipal police station by SPO4 Nandino (ibid., pp. 40-41). On the following day, post-mortem examination of the cadaver of Pedro Cagrado was conducted by Dr. Andy Gimpaya, a medico-legal expert. His Post-Mortem Examination Report revealed that the cause of death was severe hemorrhage in the thoracic cavity due to stab wound 1-1/2 inches penetrating, mid axillary line between 6 to 7 intercostal space with complete fracture of the 7th rib (tsn, July 20, 1995, pp. 2-3). Version of the Defense On the other hand, accused-appellant narrates the incidents in the following manner: 7 . . . [O]n April 22, 1994, [appellant] went to the public market of San Julian, Eastern Samar to sell fish. He left the market at about 6:00 o'clock in the evening and walked towards home. On his way, he met Pedro Cagrado together with Rolando Sabulao. That when Pedro Cagrado, Jr. got near him, the former stabbed him, but he was not hit. Pedro Cagrado, Jr. told him . . . "Pagpinaca-opay-opay nim, pagpinakasiga-siganim, in English, "You are boastful and [a] toughie." Then, Pedro Cagrado, Jr. stabbed him for the second time which also did not hit him [;] he then drew his "depang" or sharp weapon used by him in slicing fish at the market, and stabbed Pedro Cagrado, Jr., hitting him. He surrendered to the police authorities after the incident. That Pedro Cagrado, Jr., had [a] grudge against him because one time Pedro Cagrado, Jr., asked permission to drink in his house which he did not grant. (TSN, October 25, 1995, pp. 18-23). Ruling of the Trial Court

In its judgment, the court a quo took into account the accused-appellant's admission of "having killed Pedro Cagrado [Jr.] in self-defense." This admission, the trial court stated, shifted to the appellant the burden of proving the justifying circumstance mentioned. Evaluating the evidence proffered by the defense, the trial court held: . . . [A]ccused testified that it was the victim Pedro Cagrado, Jr. who unlawfully attacked him on his way home from the public market. The court is surprised that [the] accused did not even suffer a scratch as a result of the stabbing blows of the victim, assuming accused['s] allegation to be true. The defense has clearly failed to prove by convincing evidence that it was unlawful aggressor. . . . This court believes the prosecution that [the] victim was unarmed and if indeed he was armed, [the] accused should have recovered the weapon used by the victim in stabbing him and presented it as evidence to bolster his theory of self-defense. As to the attendance of the qualifying circumstances of treachery and evident premeditation, the trial court ruled: 9 In this case, the attack delivered by the accused to the victim was sudden and Pedro Cagrado, Jr. did not expect that Hilario Rebamontan would attack him. The deceased did not have the slightest suspicion that he would be assaulted. . . . There is therefore the presence of treachery in the killing of Pedro Cagrado, Jr. There is treachery when the offender commits any of the crimes against person[s,] employing means, methods or forms of execution thereof which tend directly and specially to insure its execution. . . without risk to himself arising from the defense which the offended party might take. In this case, the attack was sudden and the victim did not expect [that] the accused [would] end his life [on] that fateful day. xxx xxx xxx The prosecution alleged evident premeditation as a qualifying circumstance. However, the case is bereft of any indication that accused prepared and planned to kill Pedro Cagrado, Jr. previous to the fatal stabbing. Time and again it has been held by the Supreme Court that evident premeditation cannot be appreciated to qualify a killing to murder in the absence of direct evidence of the planning and preparation to kill when the plan was conceived. The trial judge refused to credit the appellant with the mitigating circumstance of voluntary surrender, viz.: 10 The accused alleged voluntary surrender as a mitigating circumstance. In order that voluntary surrender as a mitigating circumstance be appreciated, it is necessary that it be spontaneous and be made in such a manner that it shows that intent of the accused to surrender unconditionally to the authorities, either because he acknowledge[s] his guilt or he wishes to save the trouble and expenses necessarily incurred in his search . . . . In this case Hilario Rebamontan was picked up by Police Officer Four Nandino Doligon after the latter inquired from eyewitnesses on the same day . . . Pedro Cagrado, Jr. was killed by the accused. The fact alone that Hilario Rebamontan did not resist arrest but peacefully went with the police officer does not mean that he voluntarily surrendered. Disbelieving accused-appellant's plea of self-defense and appreciating the qualifying circumstance of treachery, the trial court convicted Rebamontan of murder and sentenced him to death. Hence, this Court's automatic review of the case. 11

Issues In his Brief, 12 accused-appellant abandons his self-defense theory and simply assails the trial court's (1) appreciation of treachery, (2) disregard of voluntary surrender, and (3) imposition of the death penalty. Thus, he submits: I THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF MURDER. II THE TRIAL COURT ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH ON ACCUSED-APPELLANT AND IN NOT TAKING INTO CONSIDERATION THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER. The Court's Ruling The Court finds no generic aggravating circumstance in the commission of the murder. Therefore, the penalty should be reclusion perpetua, not death. First Issue: Treachery Citing the prosecution witnesses themselves, appellant contends that there was no treachery, because he and his victim were facing each other when the stabbing took place. Hence, the attack could not have been sudden and unexpected. The solicitor general, on the other hand, admits that the stabbing itself was frontal, but counters that the attack commenced from behind the victim, who was unaware of appellant's criminal design. Had the victim not turned around at that particular moment, his back would surely have been stabbed. He had absolutely no opportunity to parry the blow. These circumstances, according to the government counsel, "demonstrate the treacherous nature of the assault." There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof, which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make. The essence of treachery is the swiftness and the unexpectedness of the attack upon the unsuspecting and unarmed victim, who does not give the slightest provocation. 13 Two conditions must concur: (1) the malefactor employs such means, method or manner of execution that ensures his or her safety from the defensive or retaliatory act of the victim; and (2) such means, method or form of execution is consciously and deliberately adopted by the accused. 14 We find both conditions present in the case at bar. The following is the graphic testimony of Eyewitness Lucas Calinaya as to what he witnessed on the fateful day Victim Cagrado Jr. was stabbed by accused-appellant: 15

Q: You stated in your affidavit executed before the Hon. Crisanto B. Afable that you were about 40 meters [from] the place where Pedro Cagrado, Jr. was allege[d]ly stabbed by Hilario Rebamontan, is that correct? A: Yes, sir. Q: Can you demonstrate to the Hon. Court, how far is the distance of 40 meters? [(]A distance of 30 to 35 meters as pointed to by the witness.[)] Q: Was there any object that obstructed you from seeing the two (2)? A: None, because that is a municipal road. xxx xxx xxx Q: Let's go back to the stabbing, how many times was he stabbed by Hilario Rebamontan? A: Once. Q: Did you hear any noise between the two (2) while you were with the group? A: I did not hear of any noise between the two (2). xxx xxx xxx Q: Because you know the assailant Hilario Rebamontan and also the victim, will you please tell the court, when Hilario Rebamontan was about to stab the victim Pedro Cagrado, Jr. in your honest observation, was the victim Pedro Cagrado, Jr. aware that he was going to be stabbed by Hilario Rebamontan? A: To my observation the victim [did] not know that he was going to be stabbed by Hilario. xxx xxx xxx Q: Now in your personal observation because you are not a relative of the aggrieve[d] party and your interest is to tell the truth, will you please tell the court, why did you make the conclusion or opinion that the victim Pedro Cagrado, Jr. was not aware that he was going to be stabbed by the herein assailant? A: This respondent Hilario Rebamontan just came from the sari-sari store of one Sinoy Robiene, and he passed by in front of the victim Pedro Cagrado, Jr., then when he was at the back of Pedro Cagrado, Jr. and at the moment Pedro was turning and facing him[,] immediately Hilario delivered [the] stabbing blow. Q: Now, you said that the herein respondent just came from the sari-sari store of Sinoy Robiene[;] was he already bringing with him his alleged weapon that was used in stabbing the victim?

A: I did not notice that the respondent was bringing with him already that dipang. Q: What was your approximate distance to the alleged incident? A: Approximately 40 meters. Q: So [from] that distance you cannot actually see the weapon that was used by the accused in stabbing the victim, could I get it from you, Mr. Witness? A: It was clear[,] even [to] the one playing basketball it [was] clear. Q: Now, could I take it from you that when the respondent delivered or stabbed the victim, the victim was already facing . . . the assailant? A: Yes, the victim was already facing the assailant when he was stabbed. Q: In your personal observation, Mr. Calinaya[,] was the blow delivered by the respondent Hilario Rebamontan sudden? A: Yes, sir[,] that was sudden. Q: In your personal observation when you saw the incident, did Pedro Cagrado, Jr. parry the stabbing blow of Rebamontan? A: The victim did not parry. Q: Why is it that the victim was unable to parry the stabbing blow of Hilario Rebamontan? A: The victim [did] not know that he was going to be stabbed. Clearly, Cagrado Jr. had nary an inkling that a death blow was looming on him. Rebamontan inconspicuously walked first in front of him, without any manifestation of his criminal plan. Only when the assailant got behind the unsuspecting victim did he commit his murderous act. Obviously, such a wily scheme of assault was deliberately adopted to ensure its success and to give no chance to the victim to elude it, much less to retaliate. The fact that Cagrado Jr. was facing him at the same moment as the latter's attack did not erase its treacherous nature. Even if the assault were frontal, the fact that it was sudden or totally unexpected, thus giving the victim no opportunity at all to defend himself or to retaliate, definitely points to the presence of treachery. 16 Second Issue: Voluntary Surrender For voluntary surrender to be considered a mitigating circumstance, the following requisites must concur: (1) the offender has not actually been arrested; (2) the offender surrenders to a person in authority or to the latter's agent; and (3) the surrender is voluntary. 17 In the instant case, Police Officer Nandino Doligon relates how the authorities took appellant into custody: 18 Q. So when you arrived [at] the scene you were only, you only saw the victim, is that correct? A. There were many people there.

Q. And then after that what did you do? A. I asked the people who stabbed Junior, meaning Pedro Cagrado, even if I was told already by Nia Cagrado. Then they informed me that it was Hilario Rebamontan and when I asked [where was] Hilario Rebamontan[,] they answered pointing to Lakandula Street, poblacion, San Julian, Eastern Samar. xxx xxx xxx ATTY. MOSCARE: Q. Is that to the direction of the municipality? A. Going north. Q. And what did you do when you were informed? A. I went there to that Lakandula Street. When I reached Lakandula Street[,] Hilario Rebamontan was not there and [when] I asked information if they saw Ayong, the people pointed to Burgos Street also in the poblacion of San Julian, Eastern Samar. xxx xxx xxx COURT: Is that Burgos Street going to the municipal hall of San Julian? A. To the direction of the National highway but when I saw Hilario Rebamontan he was already [i]n the direction going to the north. Q. What did you do when you saw him? A. I got near him about 10 meters away then turned I towards the direction [of] the highway and I called him saying, "Paniya," as we [were] friends[;] I called him twice. When he looked at me he at once got near me. Q. What did he inform you when he came near you? A. I first told him[,] according to the information of the people you stabbed Junior, is that so? Q. What was his response? A. He answered, yes, I was the one who stabbed Pedro Cagrado. Q. And then you brought him to the municipality? PROSECUTOR: I think he is cross-examining the witness.

A. First I got the weapon which was tucked [in] his waist. ATTY. MOSCARE: Q. Did you inform him that you [were] arresting him? A. Yes, sir. Q. What was the information you relayed to him? A. I said, "Paniya," I am arresting you. Q. What was his action or response to you when you said, you were arresting him? A. Why is it that it is you. Q. What was your response when he said that? A. I got his left hand and placed the handcuffs. Q. Then you brought him immediately to the municipal headquarters? A. Yes, sir. It is clear from the above circumstances that it was police officer who went looking for accused-appellant immediately after obtaining information from the eyewitnesses as to who had perpetrated the crime. The mere fact that he did not resist his arrest or deny his criminal act cannot be equated with voluntary surrender. His arrest was already imminent. To be voluntary, a surrender must be spontaneous and deliberate; that is, there must be an intent to submit oneself unconditionally to the authorities. 19 Third Issue: Proper Penalty Even if the killing was qualified with treachery, without the attendance of any other aggravating circumstances, the death penalty cannot be imposed upon the appellant. In murder, the imposition of death is not automatic. The law prescribes the penalty range of "reclusion perpetua to death." 20 It is an elementary rule in criminal law that where two indivisible penalties are prescribed for an offense, and there are neither mitigating nor aggravating circumstances in the commission of the crime, the lesser penalty shall be applied. 21 The solicitor general is correct in asserting that the trial court erred in imposing the death sentence upon appellant. 22 WHEREFORE, the assailed Decision is hereby AFFIRMED, with the MODIFICATION that appellant is sentenced to reclusion perpetua, instead of death. No pronouncement as to costs.1wphi1.nt SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.