G.R. No.

103119 October 21, 1992

SULPICIO INTOD, petitioner,

vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court
of Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch
XIV, Oroquieta City, finding him guilty of the crime of attempted murder.

From the records, we gathered the following facts.

In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos

Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan,
Lopez Jaena, Misamis Occidental and asked him to go with them to the house of
Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio
and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he
wanted Palangpangan to be killed because of a land dispute between them and
that Mandaya should accompany the four (4) men, otherwise, he would also be
killed.

At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at
Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said
room. It turned out, however, that Palangpangan was in another City and her
home was then occupied by her son-in-law and his family. No one was in the
room when the accused fired the shots. No one was hit by the gun fire.

Petitioner and his companions were positively identified by witnesses. One

witness testified that before the five men left the premises, they shouted: "We will
kill you (the witness) and especially Bernardina Palangpangan and we will come
back if (sic) you were not injured". 2

After trial, the Regional Trial Court convicted Intod of attempted murder. The
court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was
guilty of attempted murder. Petitioner seeks from this Court a modification of the
judgment by holding him liable only for an impossible crime, citing Article 4(2) of
the Revised Penal Code which provides:
 Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility
shall be incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense

against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the

night he and his companions riddled it with bullets made the crime
inherently impossible.

On the other hand, Respondent People of the Philippines argues that the crime
was not impossible. Instead, the facts were sufficient to constitute an attempt and
to convict Intod for attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out that:

. . . The crime of murder was not consummated, not because of the

inherent impossibility of its accomplishment (Art. 4(2), Revised
Penal Code), but due to a cause or accident other than petitioner's
and his accused's own spontaneous desistance (Art. 3., Ibid.)
Palangpangan did not sleep at her house at that time. Had it not
been for this fact, the crime is possible, not impossible. 3

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks

to remedy the void in the Old Penal Code where:

. . . it was necessary that the execution of the act has been

commenced, that the person conceiving the idea should have set
about doing the deed, employing appropriate means in order that
his intent might become a reality, and finally, that the result or end
contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him
criminally liable. 5

This legal doctrine left social interests entirely unprotected. 6 The Revised Penal
Code, inspired by the Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were it not aimed at something
quite impossible or carried out with means which prove inadequate, would
constitute a felony against person or against property. 8 The rationale of Article
4(2) is to punish such criminal tendencies. 9

Under this article, the act performed by the offender cannot produce an offense
against person or property because: (1) the commission of the offense is
inherently impossible of accomplishment: or (2) the means employed is either (a)
inadequate or (b) ineffectual. 10

That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its
nature one impossible of accomplishment. 11 There must be either impossibility
of accomplishing the intended act 12 in order to qualify the act an impossible
crime.

Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime. 13 Thus:

Legal impossibility would apply to those circumstances where (1)

the motive, desire and expectation is to perform an act in violation
of the law; (2) there is intention to perform the physical act; (3)
there is a performance of the intended physical act; and (4) the
consequence resulting from the intended act does not amount to a
crime. 14

The impossibility of killing a person already dead 15 falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances

unknown to the actor or beyond his control prevent the consummation of the
intended crime. 16 One example is the man who puts his hand in the coat pocket
of another with the intention to steal the latter's wallet and finds the pocket
empty. 17

The case at bar belongs to this category. Petitioner shoots the place where he
thought his victim would be, although in reality, the victim was not present in said
place and thus, the petitioner failed to accomplish his end.

One American case had facts almost exactly the same as this one. In People
vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot
where he thought the police officer would be. It turned out, however, that the
latter was in a different place. The accused failed to hit him and to achieve his
intent. The Court convicted the accused of an attempt to kill. It held that:

The fact that the officer was not at the spot where the attacking
party imagined where he was, and where the bullet pierced the
roof, renders it no less an attempt to kill. It is well settled principle of
criminal law in this country that where the criminal result of an
attempt is not accomplished simply because of an obstruction in the
way of the thing to be operated upon, and these facts are unknown
to the aggressor at the time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his
intent to kill the victim because the latter did not pass by the place where he was
lying-in wait, the court held him liable for attempted murder. The court explained
that:

It was no fault of Strokes that the crime was not committed. . . . It

only became impossible by reason of the extraneous circumstance
that Lane did not go that way; and further, that he was arrested and
prevented from committing the murder. This rule of the law has
application only where it is inherently impossible to commit the
crime. It has no application to a case where it becomes impossible
for the crime to be committed, either by outside interference or
because of miscalculation as to a supposed opportunity to commit
the crime which fails to materialize; in short it has no application to
the case when the impossibility grows out of extraneous acts not
within the control of the party.

In the case of Clark vs. State, 20 the court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the case, the court
quoted Mr. Justice Bishop, to wit:

It being an accepted truth that defendant deserves punishment by

reason of his criminal intent, no one can seriously doubt that the
protection of the public requires the punishment to be administered,
equally whether in the unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The community suffers
from the mere alarm of crime. Again: Where the thing intended
(attempted) as a crime and what is done is a sort to create alarm, in
other words, excite apprehension that the evil; intention will be
carried out, the incipient act which the law of attempt takes
cognizance of is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of
victim's room thinking that the latter was inside. However, at that moment, the
victim was in another part of the house. The court convicted the accused of
attempted murder.

The aforecited cases are the same cases which have been relied upon by
Respondent to make this Court sustain the judgment of attempted murder
against Petitioner. However, we cannot rely upon these decisions to resolve the
issue at hand. There is a difference between the Philippine and the American
laws regarding the concept and appreciation of impossible crimes.

In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for
impossible crimes and made the punishable. Whereas, in the United States, the
Code of Crimes and Criminal Procedure is silent regarding this matter. What it
provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard, commentators and the
cases generally divide the impossibility defense into two categories: legal versus
factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that:

. . . factual impossibility of the commission of the crime is not a

defense. If the crime could have been committed had the
circumstances been as the defendant believed them to be, it is no
defense that in reality the crime was impossible of commission.

Legal impossibility, on the other hand, is a defense which can be invoked to

avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was
indicated for attempting to smuggle letters into and out of prison. The law
governing the matter made the act criminal if done without knowledge and
consent of the warden. In this case, the offender intended to send a letter without
the latter's knowledge and consent and the act was performed. However,
unknown to him, the transmittal was achieved with the warden's knowledge and
consent. The lower court held the accused liable for attempt but the appellate
court reversed. It held unacceptable the contention of the state that "elimination
of impossibility as a defense to a charge of criminal attempt, as suggested by the
Model Penal Code and the proposed federal legislation, is consistent with the
overwhelming modern view". In disposing of this contention, the Court held that
the federal statutes did not contain such provision, and thus, following the
principle of legality, no person could be criminally liable for an act which was not
made criminal by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus
act plus conduct constitutes the offense of attempt irrespective of
legal impossibility until such time as such legislative changes in the
law take place, this court will not fashion a new non-statutory law of
criminal attempt.

To restate, in the United States, where the offense sought to be committed is

factually impossible or accomplishment, the offender cannot escape criminal
liability. He can be convicted of an attempt to commit the substantive crime
where the elements of attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to commit a crime. On
the other hand, where the offense is legally impossible of accomplishment, the
actor cannot be held liable for any crime — neither for an attempt not for an
impossible crime. The only reason for this is that in American law, there is no
such thing as an impossible crime. Instead, it only recognizes impossibility as a
defense to a crime charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not merely a
defense, but an act penalized by itself. Furthermore, the phrase "inherent
impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi
lex non distinguit nec nos distinguere debemos.

The factual situation in the case at bar present a physical impossibility which
rendered the intended crime impossible of accomplishment. And under Article 4,
paragraph 2 of the Revised Penal Code, such is sufficient to make the act an
impossible crime.

To uphold the contention of respondent that the offense was Attempted Murder
because the absence of Palangpangan was a supervening cause independent of
the actor's will, will render useless the provision in Article 4, which makes a
person criminally liable for an act "which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment . . ." In
that case all circumstances which prevented the consummation of the offense
will be treated as an accident independent of the actor's will which is an element
of attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED,

the decision of respondent Court of Appeals holding Petitioner guilty of
Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an
impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of
the Revised Penal Code, respectively. Having in mind the social danger and
degree of criminality shown by Petitioner, this Court sentences him to suffer the
penalty of six (6) months of arresto mayor, together with the accessory penalties
provided by the law, and to pay the costs.

SO ORDERED.

G.R. No. 188551 February 27, 2013

EDMUNDO ESCAMILLA y JUGO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari 1 dated 20 August 2009. It seeks a review of the 10
June 2009 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR. No. 30456, which
denied the Motion for Reconsideration3of the 10 November 2008 CA Decision4 affirming the
conviction of Edmundo Escamilla (petitioner) for frustrated homicide.

BACKGROUND
The facts of this case, culled from the records, are as follows:

Petitioner has a house with a sari-sari store along Arellano Street, Manila.5 The victim,
Virgilio Mendol (Mendol), is a tricycle driver whose route traverses the road where
petitioner's store is located.6

Around 2:00 a.m. of 01 August 1999, a brawl ensued at the comer of Estrada and Arellano
Streets, Manila.7 Mendol was about to ride his tricycle at this intersection while facing
Arellano Street.8 Petitioner, who was standing in front of his store, 30 meters away from
Mendol,9 shot the latter four times, hitting him once in the upper right portion of his
chest.10 The victim was brought to Ospital ng Makati for treatment11 and survived because of
timely medical attention.12

The Assistant City Prosecutor of Manila filed an Information13 dated 01 December 1999
charging petitioner with frustrated homicide. The Information reads:

That on or about August 1, 1999, in the City of Manila, Philippines, the said accused, with
intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and use
personal violence upon the person of one Virgilio Mendol, by then and there shooting the
latter with a .9mm Tekarev pistol with Serial No. 40283 hitting him on the upper right portion
of his chest, thereby inflicting upon him gunshot wound which is necessarily fatal and mortal,
thus performing all the acts of execution which should have produced the crime of Homicide
as a consequence, but nevertheless did not produce it by reason of causes, independent of
his will, that is, by the timely and able medical assistance rendered to said Virgilio Mendol
which prevented his death.

CONTRARY TO LAW.

Upon arraignment, petitioner pleaded not guilty.14 During trial, the prosecution presented the
testimonies of Mendol, Joseph Velasco (Velasco) and Iluminado Garcelazo (Garcelazo), who
all positively identified him as the shooter of Mendol.15 The doctor who attended to the victim
also testified.16 The documentary evidence presented included a sketch of the crime scene,
the Medical Certificate issued by the physician, and receipts of the medical expenses of
Mendol when the latter was treated for the gunshot wound.17 In the course of the
presentation of the prosecution witnesses, the defense requested an ocular inspection of the
crime scene, a request that was granted by the court.18 On the other hand, the defense
witnesses are petitioner himself, his wife, Velasco and Barangay Tanod George Asumbrado
(Asumbrado).19 The defense offered the results of the paraffin test of petitioner and the
transcript of stenographic notes taken during the court’s ocular inspection of the crime
scene.20

The Regional Trial Court (RTC) held that the positive testimonies of eyewitnesses deserve
far more weight and credence than the defense of alibi.21 Thus, it found petitioner guilty of
frustrated homicide.22 The dispositive portion reads:

WHEREFORE, the Court finds the accused Edmund Escamilla Y Jugo GUILTY beyond
reasonable doubt of the crime of Frustrated Homicide under Articles 249 and 50 [sic] of the
Revised Penal Code, and hereby sentences the accused to suffer an indeterminate sentence
of six (6) months and one (1) day of prision correccional as minimum, to eight (8) years and
one (1) day of prision mayor as maximum. Accused is hereby ordered to indemnify
complainant Virgilio Mendol the sum of ₱34,305.16 for actual damages, ₱30,000.00 for
moral damages.
SO ORDERED.23

Petitioner filed a Notice of Appeal dated 14 July 2006.24 In the brief that the CA required him
to file,25 he questioned the credibility of the prosecution witnesses over that of the
defense.26 On the other hand, the Appellee’s Brief27posited that the prosecution witnesses
were credible, because there were no serious discrepancies in their testimonies.28 Petitioner,
in his Reply brief,29 said that the prosecution witnesses did not actually see him fire the
gun.30 Furthermore, his paraffin test yielded a negative result.31

The CA, ruling against petitioner, held that the issue of the credibility of witnesses is within
the domain of the trial court, which is in a better position to observe their demeanor.32 Thus,
the CA upheld the RTC’s appreciation of the credibility of the prosecution witnesses in the
present case.33 Also, the CA ruled that the victim’s positive and unequivocal identification of
petitioner totally destroyed his defense of alibi. Hence, it found no reason to disbelieve
Mendol’s testimony.34 In addition, it said that a paraffin test is not a conclusive proof that a
person has not fired a gun and is inconsequential when there is a positive identification of
petitioner.35

A Motion for Reconsideration36 dated 08 December 2008 was filed by petitioner, who
asserted that the defense was able to discredit the testimony of the victim.37

In its 10 June 2009 Resolution,38 the CA denied petitioner’s Motion for Reconsideration for
being without merit, because the matters discussed therein had already been resolved in its
10 November 2008 Decision.39

Hence, this Petition40 assailing the application to this case of the rule that the positive
identification of the accused has more weight than the defense of alibi.41 This Court resolved
to require the prosecution to comment on the Petition.42 In his Comment43 dated 15
December 2009, the victim said that his positive identification of petitioner was a direct
evidence that the latter was the author of the crime.44 Furthermore, what petitioner raised
was allegedly a question of fact, which is proscribed by a Rule 45 petition.45 Thus, the victim
alleged, there being no new or substantial matter or question of law raised, the Petition
should be denied.46

We then obliged petitioner to file a reply.47 In his Reply dated 01 March 2010,48 he assigned
as an error the application by the CA of the rule that the positive identification of the accused
has more weight than the defense of alibi.49 He posits that the lower court manifestly
overlooked relevant facts not disputed by the parties, but if properly considered would justify
a different conclusion.50 This Court, he said, should then admit an exception to the general
rule that the findings of fact of the CA are binding upon the Supreme Court.51

ISSUES

The questions before us are as follows:

I. Whether the prosecution established petitioner’s guilt beyond reasonable doubt.52

II. Whether a defense of alibi, when corroborated by a disinterested party, overcomes the
positive identification by three witnesses.53

COURT’S RULING
We deny the Petition.

I. The prosecution proved petitioner’s guilt beyond reasonable doubt.

A. Petitioner was positively identified by three witnesses.

Petitioner argues that there was reasonable doubt as to the identity of the shooter.54 He is
wrong. As correctly held by the RTC and affirmed by the CA, the identity of the assailant was
proved with moral certainty by the prosecution, which presented three witnesses – the victim
Mendol, Velasco, and Garcelazo – who all positively identified him as the shooter.55 We have
held that a categorical and consistently positive identification of the accused, without any
showing of ill motive on the part of the eyewitnesses, prevails over denial.56 All the three
witnesses were unswerving in their testimonies pointing to him as the shooter. None of them
had any ulterior motive to testify against him.

Mendol said that he was about to ride his tricycle at the corner of Arellano and Estrada
Streets, when petitioner, who was in front of the former’s store, shot him.57 The first shot hit
its target, but petitioner continued to fire at the victim three more times, and the latter then
started to run away.58

Velasco, who was also at the corner of Estrada and Arellano Streets, heard the first shot,
looked around, then saw petitioner firing at Mendol three more times.59

Lastly, Garcelazo testified that while he was buying bread from a bakery at that same street
corner, he heard three shots before he turned his head and saw petitioner pointing a gun at
the direction of the victim, who was bloodied in the right chest.60 Garcelazo was just an arm’s
length away from him.61

The three witnesses had a front view of the face of petitioner, because they were all facing
Arellano Street from its intersection with Estrada Street, which was the locus
criminis.62 Although the crime happened in the wee hours of the morning, there was a street
lamp five meters from where petitioner was standing when he shot the victim, thus allowing a
clear view of the assailant’s face.63 They all knew petitioner, because they either bought from
or passed by his store.64

B. The intent to kill was shown by the continuous firing at the victim even after he was
hit.

Petitioner claims that the prosecution was unable to prove his intent to kill.65 He is mistaken.
The intent to kill, as an essential element of homicide at whatever stage, may be before or
simultaneous with the infliction of injuries.66 The evidence to prove intent to kill may consist
of, inter alia, the means used; the nature, location and number of wounds sustained by the
victim; and the conduct of the malefactors before, at the time of, or immediately after the
killing of the victim.67

Petitioner’s intent to kill was simultaneous with the infliction of injuries. Using a gun,68 he shot
the victim in the chest. 69 Despite a bloodied right upper torso, the latter still managed to run
towards his house to ask for help. 70Nonetheless, petitioner continued to shoot at him three
more times,71 albeit unsuccessfully.72 While running, the victim saw his nephew in front of the
house and asked for help.73 The victim was immediately brought to the hospital on board an
owner-type jeep.74 The attending physician, finding that the bullet had no point of exit, did not
attempt to extract it; its extraction would just have caused further damage.75 The doctor
further said that the victim would have died if the latter were not brought immediately to the
hospital.76 All these facts belie the absence of petitioner’s intent to kill the victim.

II. Denial and alibi were not proven.

In order for alibi to prosper, petitioner must establish by clear and convincing evidence
that, first, he was in another place at the time of the offense; and, second, it was physically
impossible for him to be at the scene of the crime. 77The appreciation of the defense of alibi
is pegged against this standard and nothing else. Petitioner, as found by both the RTC and
CA, failed to prove the presence of these two requisite conditions. Hence, he was wrong in
asserting that alibi, when corroborated by other witnesses, succeeds as a defense over
positive identification.78

A. Petitioner was unable to establish that he was at home at the time of the offense.

The alibi of petitioner was that he was at home asleep with his wife when Mendol was
shot.79 To support his claim, petitioner presented the testimonies of his wife and
Asumbrado.80

1. The wife of petitioner did not know if he was at home when the shooting happened.

The wife of petitioner testified that both of them went to sleep at 9:00 p.m. and were
awakened at 3:00 a.m. by the banging on their door.81 However, she also said that she did
not know if petitioner stayed inside their house, or if he went somewhere else during the
entire time she was asleep.82 Her testimony does not show that he was indeed at home
when the crime happened. At the most, it only establishes that he was at home before and
after the shooting. Her lack of knowledge regarding his whereabouts between 1:00 a.m. and
3:00 a.m. belies the credibility of his alibi. Even so, the testimonies of relatives deserve scant
consideration, especially when there is positive identification83by three witnesses.

2. Asumbrano did not see the entire face of the shooter.

Petitioner is questioning why neither the RTC nor the CA took into account the testimony of
Asumbrado, the Barangay Tanod on duty that night.84 Both courts were correct in not giving
weight to his testimony.

Asumbrado said that he was there when the victim was shot, not by appellant, but by a big
man who was in his twenties.85 This assertion was based only on a back view of the man
who fired the gun 12 meters away from Asumbrado.86 The latter never saw the shooter’s
entire face.87 Neither did the witness see the victim when the latter was hit.88 Asumbrado also
affirmed that he was hiding when the riot took place. 89 These declarations question his
competence to unequivocally state that indeed it was not petitioner who fired at Mendol.

B. Petitioner's home was just in front of the street where the shooting occurred.

Physical impossibility refers to the distance between the place where the accused was when
the crime transpired and the place where it was committed, as well as the facility of access
between the two places. 90 Petitioner failed to prove the physical impossibility of his being at
the scene of the crime at the time in question.
Both the prosecution and the defense witnesses referred to the front of appellant's house or
store whenever they testified on the location of the shooter. Petitioner was in front of his
house when he shot the victim, according to Velasco's testimony.91 Meanwhile the statement
of Asumbrado that the gate of the store of the petitioner was closed when the shooting
happened92 can only mean that the latter's house and store were both located in front of the
scene of the crime.1âwphi1

Petitioner proffers the alibi that he was at home, instead of showing the impossibility of his
authorship of the crime. His alibi actually bolsters the prosecution's claim that he was the
shooter, because it placed him just a few steps away from the scene of the crime. The
charge is further bolstered by the testimony of his wife, who could not say with certainty that
he was at home at 2:00a.m.- the approximate time when the victim was shot.

Based on the foregoing, it cannot be said that the lower courts overlooked any fact that could
have justified a different conclusion. Hence, the CA was correct in affirming the R TC 's
Decision that petitioner, beyond reasonable doubt, was the assailant.

WHEREFORE, in view of the foregoing, the Petition is DENIED. The 10 June 2009
Resolution93 and 10 November 2008 Decision94 of the Court of Appeals in CA-G.R. CR. No.
30456 are hereby AFFIRMED in toto.

SO ORDERED

EN BANC

[G.R. No. 129433. March 30, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y

BELLO, accused.

DECISION

BELLOSILLO, J.:

On 3 April 1990 this Court in People v. Orita finally did away with
[1]

frustrated rape and allowed only attempted rape and consummated

[2]

rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by
considering almost every attempt at sexual violation of a woman as
consummated rape, that is, if the contrary view were to be adopted. The
danger there is that that concept may send the wrong signal to every
roaming lothario, whenever the opportunity bares itself, to better intrude
with climactic gusto, sans any restraint, since after all any attempted
fornication would be considered consummated rape and punished as
such. A mere strafing of the citadel of passion would then be considered
a deadly fait accompli, which is absurd.

In Orita we held that rape was consummated from the moment the
offender had carnal knowledge of the victim since by it he attained his
objective. All the elements of the offense were already present and
nothing more was left for the offender to do, having performed all the
acts necessary to produce the crime and accomplish it. We ruled then
that perfect penetration was not essential; any penetration of the female
organ by the male organ, however slight, was sufficient. The Court
further held that entry of the labia or lips of the female organ, even
without rupture of the hymen or laceration of the vagina, was sufficient
to warrant conviction for consummated rape. We distinguished
consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution were
performed as the offender merely commenced the commission of a
felony directly by overt acts. The inference that may be derived
[3]

therefrom is that complete or full penetration of the vagina is not

required for rape to be consummated. Any penetration, in whatever
degree, is enough to raise the crime to its consummated stage.

But the Court in Orita clarified the concept of penetration in rape by

requiring entry into the labia or lips of the female organ, even if there be
no rupture of the hymen or laceration of the vagina, to warrant a
conviction for consummated rape. While the entry of the penis into the
lips of the female organ was considered synonymous with mere
touching of the external genitalia, e.g., labia majora, labia minora,
etc., the crucial doctrinal bottom line is
[4]

that touching must be inextricably viewed in light of, in relation to, or as

an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be
tacked to the penetration itself. The importance of the requirement of
penetration, however slight, cannot be gainsaid because where entry
into the labia or the lips of the female genitalia has not been
established, the crime committed amounts merely to attempted rape.

Verily, this should be the indicium of the Court in determining whether

rape has been committed either in its attempted or in its consummated
stage; otherwise, no substantial distinction would exist between the two,
despite the fact that penalty-wise, this distinction, threadbare as it may
seem, irrevocably spells the difference between life and death for the
accused - a reclusive life that is not even perpetua but only temporal on
one hand, and the ultimate extermination of life on the other. And,
arguing on another level, if the case at bar cannot be deemed attempted
but consummated rape, what then would constitute attempted rape?
Must our field of choice be thus limited only to consummated rape and
acts of lasciviousness since attempted rape would no longer be possible
in light of the view of those who disagree with this ponencia?

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory

rape and sentenced by the court a quo to the extreme penalty of
death, hence this case before us on automatic review under Art. 335 of
[5]

the Revised Penal Code as amended by RA 7659. [6]

As may be culled from the evidence on record, on 25 April 1996, at

around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of
four (4)-year old Crysthel Pamintuan, went down from the second floor
of their house to prepare Milo chocolate drinks for her two (2) children.
At the ground floor she met Primo Campuhan who was then busy filling
small plastic bags with water to be frozen into ice in the freezer located
at the second floor. Primo was a helper of Conrado Plata Jr., brother of
Corazon. As Corazon was busy preparing the drinks, she heard one of
her daughters cry, "Ayo'ko, ayo'ko!" prompting Corazon to rush
[7]

upstairs. Thereupon, she saw Primo Campuhan inside her childrens

room kneeling before Crysthel whose pajamas or "jogging pants" and
panty were already removed, while his short pants were down to his
knees.

According to Corazon, Primo was forcing his penis into Crysthels

vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko
iyan!" and boxed him several times. He evaded her blows and pulled up
his pants. He pushed Corazon aside when she tried to block his path.
Corazon then ran out and shouted for help thus prompting her brother, a
cousin and an uncle who were living within their compound, to chase
the accused. Seconds later, Primo was apprehended by those who
[8]

answered Corazon's call for help. They held the accused at the back of
their compound until they were advised by their neighbors to call
the barangay officials instead of detaining him for his misdeed. Physical
examination of the victim yielded negative results. No evident sign of
extra-genital physical injury was noted by the medico-legal officer on
Crysthels body as her hymen was intact and its orifice was only 0.5 cm.
in diameter.
Primo Campuhan had only himself for a witness in his defense. He
maintained his innocence and assailed the charge as a mere scheme of
Crysthel's mother who allegedly harbored ill will against him for his
refusal to run an errand for her. He asserted that in truth Crysthel was
[9]

in a playing mood and wanted to ride on his back when she suddenly
pulled him down causing both of them to fall down on the floor. It was in
this fallen position that Corazon chanced upon them and became
hysterical. Corazon slapped him and accused him of raping her child.
He got mad but restrained himself from hitting back when he realized
she was a woman. Corazon called for help from her brothers to stop him
as he ran down from the second floor.

Vicente, Corazon's brother, timely responded to her call for help and
accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of
Conrado Plata but Vicente followed him there. Primo pleaded for a
chance to explain as he reasoned out that the accusation was not true.
But Vicente kicked him instead. When Primo saw Vicente holding a
piece of lead pipe, Primo raised his hands and turned his back to avoid
the blow. At this moment, the relatives and neighbors of Vicente
prevailed upon him to take Primo to the barangay hall instead, and not
to maul or possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on

27 May 1997 found him guilty of statutory rape, sentenced him to the
extreme penalty of death, and ordered him to pay his victim P50,000.00
for moral damages, P25,000.00 for exemplary damages, and the costs.

The accused Primo Campuhan seriously assails the credibility of Ma.

Corazon Pamintuan. He argues that her narration should not be given
any weight or credence since it was punctured with implausible
statements and improbabilities so inconsistent with human nature and
experience. He claims that it was truly inconceivable for him to commit
the rape considering that Crysthels younger sister was also in the room
playing while Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the fact
that the episode happened within the family compound where a call for
assistance could easily be heard and responded to, would have been
enough to deter him from committing the crime. Besides, the door of the
room was wide open for anybody to see what could be taking place
inside. Primo insists that it was almost inconceivable that Corazon could
give such a vivid description of the alleged sexual contact when from
where she stood she could not have possibly seen the
alleged touching of the sexual organs of the accused and his victim. He
asserts that the absence of any external signs of physical injuries or of
penetration of Crysthels private parts more than bolsters his innocence.

In convicting the accused, the trial court relied quite heavily on the
testimony of Corazon that she saw Primo with his short pants down to
his knees kneeling before Crysthel whose pajamas and panty were
supposedly "already removed" and that Primo was "forcing his penis
into Crysthels vagina." The gravamen of the offense of statutory rape is
carnal knowledge of a woman below twelve (12), as provided in Art.
335, par. (3), of the Revised Penal Code. Crysthel was only four (4)
years old when sexually molested, thus raising the penalty,
from reclusion perpetua to death, to the single indivisible penalty of
death under RA 7659, Sec. 11, the offended party being below seven
(7) years old. We have said often enough that in concluding that carnal
knowledge took place, full penetration of the vaginal orifice is not an
essential ingredient, nor is the rupture of the hymen necessary;
the mere touching of the external genitalia by the penis capable of
consummating the sexual act is sufficient to constitute carnal
knowledge. But the act of touching should be understood here as
[10]

inherently part of the entry of the penis into the labias of the female
organ and not mere touching alone of the mons pubis or the pudendum.

In People v. De la Pea we clarified that the decisions finding a case for

[11]

rape even if the attackers penis merely touched the external portions of
the female genitalia were made in the context of the presence or
existence of an erect penis capable of full penetration. Where the
accused failed to achieve an erection, had a limp or flaccid penis, or an
oversized penis which could not fit into the victim's vagina, the Court
nonetheless held that rape was consummated on the basis of the
victim's testimony that the accused repeatedly tried, but in vain, to insert
his penis into her vagina and in all likelihood reached the labia of
her pudendum as the victim felt his organ on the lips of her vulva, or
[12]

that the penis of the accused touched the middle part of her
vagina. Thus, touching when applied to rape cases does not simply
[13]

mean mere epidermal contact, stroking or grazing of organs, a slight

brush or a scrape of the penis on the external layer of the victims
vagina, or the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or slid into the
female organ, and not merely stroked the external surface thereof, for
an accused to be convicted of consummated rape. As [14]

the labias, which are required to be "touched" by the penis, are by their
natural situs or location beneath the mons pubis or the vaginal surface,
to touch them with the penis is to attain some degree of penetration
beneath the surface, hence, the conclusion that touching the labia
majora or the labia minora of the pudendum constitutes consummated
rape.

The pudendum or vulva is the collective term for the female genital
organs that are visible in the perineal area, e.g., mons pubis, labia
majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc.
The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is
the labia majora or the outer lips of the female organ composed of the
outer convex surface and the inner surface. The skin of the outer
convex surface is covered with hair follicles and is pigmented, while the
inner surface is a thin skin which does not have any hair but has many
sebaceous glands. Directly beneath the labia majora is the labia
minora. Jurisprudence dictates that the labia majora must
[15]

be entered for rape to be consummated, and not merely for the penis
[16]

to stroke the surface of the female organ. Thus, a grazing of the surface
of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the
slightest penetration of the female organ, i.e., touching of either labia of
the pudendum by the penis, there can be no consummated rape; at
most, it can only be attempted rape, if not acts of lasciviousness.

Judicial depiction of consummated rape has not been confined to the

oft-quoted "touching of the female organ," but has also progressed into
[17]

being described as "the introduction of the male organ into the labia of
the pudendum," or "the bombardment of the drawbridge." But, to our
[18] [19]

mind, the case at bar merely constitutes a "shelling of the castle of

orgasmic potency," or as earlier stated, a "strafing of the citadel of
passion."

A review of the records clearly discloses that the prosecution utterly

failed to discharge its onus of proving that Primos penis was able to
penetrate Crysthels vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of sexually
molesting her daughter, we seriously doubt the veracity of her claim that
she saw the inter-genital contact between Primo and Crysthel. When
asked what she saw upon entering her childrens room Corazon plunged
into saying that she saw Primo poking his penis on the vagina of
Crysthel without explaining her relative position to them as to enable her
to see clearly and sufficiently, in automotive lingo, the contact point. It
should be recalled that when Corazon chanced upon Primo and
Crysthel, the former was allegedly in a kneeling position, which Corazon
described thus:

Q: How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the

chest of the accused is pinning down the victim, while his
right hand is holding his penis and his left hand is spreading
the legs of the victim).

It can reasonably be drawn from the foregoing narration that Primos

kneeling position rendered an unbridled observation impossible. Not
even a vantage point from the side of the accused and the victim would
have provided Corazon an unobstructed view of Primos penis
supposedly reaching Crysthels external genitalia, i.e., labia
majora, labia minora, hymen, clitoris, etc., since the legs and arms of
Primo would have hidden his movements from Corazons sight, not to
discount the fact that Primos right hand was allegedly holding his penis
thereby blocking it from Corazons view. It is the burden of the
prosecution to establish how Corazon could have seen the sexual
contact and to shove her account into the permissive sphere of
credibility. It is not enough that she claims that she saw what was done
to her daughter. It is required that her claim be properly demonstrated to
inspire belief. The prosecution failed in this respect, thus we cannot
conclude without any taint of serious doubt that inter-genital contact was
at all achieved. To hold otherwise would be to resolve the doubt in favor
of the prosecution but to run roughshod over the constitutional right of
the accused to be presumed innocent.

Corazon insists that Primo did not restrain himself from pursuing his
wicked intention despite her timely appearance, thus giving her the
opportunity to fully witness his beastly act.

We are not persuaded. It is inconsistent with mans instinct of self-

preservation to remain where he is and persist in satisfying his lust even
when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For,
the normal behavior or reaction of Primo upon learning of Corazons
presence would have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although relatively short,
provided more than enough opportunity for Primo not only to desist from
but even to conceal his evil design.

What appears to be the basis of the conviction of the accused was

Crysthel's answer to the question of the court -

Q: Did the penis of Primo touch your organ?

A: Yes, sir.

But when asked further whether his penis penetrated her organ, she
readily said, "No." Thus -

Q: But did his penis penetrate your organ?

A: No, sir.
[20]

This testimony alone should dissipate the mist of confusion that

enshrouds the question of whether rape in this case was consummated.
It has foreclosed the possibility of Primos penis penetrating her vagina,
however slight. Crysthel made a categorical statement denying
penetration, obviously induced by a question propounded to her who
[21]

could not have been aware of the finer distinctions

between touching and penetration. Consequently, it is improper and
unfair to attach to this reply of a four (4)-year old child, whose
vocabulary is yet as underdeveloped as her sex and whose language is
bereft of worldly sophistication, an adult interpretation that because the
penis of the accused touched her organ there was sexual entry. Nor can
it be deduced that in trying to penetrate the victim's organ the penis of
the accused touched the middle portion of her vagina and entered
the labia of her pudendum as the prosecution failed to establish
sufficiently that Primo made efforts to penetrate Crysthel. Corazon did
[22]

not say, nay, not even hint that Primo's penis was erect or that he
responded with an erection. On the contrary, Corazon even narrated
[23]

that Primo had to hold his penis with his right hand, thus showing that
he had yet to attain an erection to be able to penetrate his victim.

Antithetically, the possibility of Primos penis having breached Crysthels

vagina is belied by the child's own assertion that she resisted Primos
advances by putting her legs close together; consequently, she did not
[24]
feel any intense pain but just felt "not happy" about what Primo did to
her. Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In
[25]

cases where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated on
the victim's testimony that she felt pain, or the medico-legal finding
of discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer
visible. None was shown in this case. Although a child's testimony
[26]

must be received with due consideration on account of her tender age,

the Court endeavors at the same time to harness only what in her story
appears to be true, acutely aware of the equally guaranteed rights of the
accused. Thus, we have to conclude that even on the basis of the
testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.

Lastly, it is pertinent to mention the medico legal officer's finding in this

case that there were no external signs of physical injuries on
complaining witness body to conclude from a medical perspective that
penetration had taken place. As Dr. Aurea P. Villena explained,
although the absence of complete penetration of the hymen does not
negate the possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the accused and
the victim. [27]

In cases of rape where there is a positive testimony and a medical

certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter disregard of
the manifest variance in the medical certificate, would be productive of
unwarranted or even mischievous results. It is necessary to carefully
ascertain whether the penis of the accused in reality entered the
labial threshold of the female organ to accurately conclude that rape
was consummated. Failing in this, the thin line that separates attempted
rape from consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape
directly by overt acts, and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or
accident other than his own spontaneous desistance. All the elements
of attempted rape - and only of attempted rape - are present in the
instant case, hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the
imposable penalty of death for the offense charged, which is statutory
rape of a minor below seven (7) years. Two (2) degrees lower
is reclusion temporal, the range of which is twelve (12) years and one
(1) day to twenty (20) years. Applying the Indeterminate Sentence Law,
and in the absence of any mitigating or aggravating circumstance, the
maximum of the penalty to be imposed upon the accused shall be taken
from the medium period of reclusion temporal, the range of which is
fourteen (14) years, eight (8) months and (1) day to seventeen (17)
years and four (4) months, while the minimum shall be taken from the
penalty next lower in degree, which is prision mayor, the range of which
is from six (6) years and one (1) day to twelve (12) years, in any of its
periods.

WHEREFORE, the Decision of the court a quo finding accused PRIMO

"SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing
him to death and to pay damages is MODIFIED. He is instead found
guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison
term of eight (8) years four (4) months and ten (10) days of prision
mayor medium as minimum, to fourteen (14) years ten (10) months and
twenty (20) days of reclusion temporal medium as maximum. Costs de
oficio.

SO ORDERED.

G.R. No. L-21860 February 28, 1974

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VIOLETO VILLACORTE, alias BONGING, et al., defendants. CRISANTO INOFERIO Y
ALINDAO alias SANTE, and MARCIANO YUSAY alias MANCING (appeal withdrawn
res. of 7/10/67), defendants-appellants.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Bernardo
P. Pardo and Solicitor Jesus V. Diaz, for plaintiff-appellee.

Peralta Law Offices for defendants-appellants.

FERNANDEZ, J.:p

The charge in this case was for robbery with homicide and the penalty imposed upon the appellant Crisanto Inoferio and his co-
accused Violeto Villacorte and Marciano Yusay was reclusion perpetua and the payment of indemnity to the heirs of the deceased
Benito Ching in the sum of P6,000.00. This case is now before this Court only on the appeal of Inoferio, because although the
lower court convicted him and his co-accused Villacorte and Yusay (Alfredo Handig, a fourth accused was acquitted), Villacorte
did not appeal, while the appeal of Yusay was withdrawn upon his motion which was granted by this Court on July 10, 1967.

In the evening of August 27, 1959, Benito Ching, a Chinese merchant, left his sari-sari store
in the public market of Caloocan1 to go home, bringing with him the proceeds of his sales of
the day which were placed in a paper bag. He was accompanied by his two employees,
Pedro Libantino and Modesto Galvez, who acted as his bodyguards. On the way towards his
home located at 133 F. Roxas, Grace Park, Caloocan, Benito Ching and his two companions
were accosted by four persons near the corner of an alley at F. Roxas street. At that time,
Libantino was some three or four meters in front of Ching, while Galvez was walking directly
behind the Chinese merchant.

One of the holduppers pointed a .45 cal. pistol at Ching. Another placed his left arm around
the neck of Galvez, while the third held both his arms. The first who pointed a pistol at Ching
snatched from him the paper bag containing the money. The fourth got that paper bag from
the snatcher.

Ching shouted for help, crying aloud "Pedie, Pedie"; his companion Libantino turned around
to respond to his employer's call; but upon seeing the bag snatcher pointing a pistol at
Ching, Libantino fled. When Ching shouted: "Pedie, Pedie," the pistol-holder fired at him.
Galvez, Ching's other companion, was able to free himself from two of the holduppers
holding him, and he too ran away. Ching fell down sprawled on the street and the four
holduppers ran away. Benito Ching, notwithstanding his wound, was able to walk, staggering
towards his home. His common-law wife immediately called for a taxicab, brought Ching to
the North General Hospital in Manila where he died the following day.

Later that evening when Galvez was interrogated by police officers of Caloocan who were
investigating the incident, the interrogation proved fruitless for Galvez was able to furnish the
investigators any information on the identities of the holduppers. But when investigated by
the CIS, Philippine Constabulary, at Camp Crame on September 11, 1959, Galvez declared
that Ching was accosted by three persons, one of them pointing his pistol at the right ribs of
his employer. He identified the gunman as Violeto Villacorte alias Bonging and even
described the shirt and pants the gunman was then wearing. He could not identify the two
other companions of Villacorte.

Libantino, when examined by the investigators of the Caloocan police department on the
same night of August 27, 1959, declared that the holdup and shooting incident took place in
a dark "kalyehon" and that he could not identify the gunman nor the latter's companions. But,
in his written statement taken by the CIS at Camp Crame, Quezon City on September 11,
1959, he declared positively that he saw Violeto Villacorte alias Bonging as the person who
grabbed the paper bag containing money from Ching and fired a pistol at Ching. He further
said that aside from Villacorte he saw three other persons, two of them were holding the
hands of his companion, Galvez. He admitted however, that he could not recognize the two
persons who were holding Galvez.

Villacorte who, in the meantime, had been positively identified by Galvez and Libantino as
the bag snatcher and as the gunman who shot down Ching, when interrogated by the
investigators of the Criminal Investigation Service at Camp Crame on September 12, 1959
admitted that he was the one who snatched the paper bag from Benito Ching and shot him.
He identified his companions as "Roque", "Sante" and "Fred".
In the information for robbery with homicide filed in the Court of First Instance of Rizal on
September 12, 1959, Violeto Villacorte was so named therein; "Roque" and "Fred" were
already identified as Roque Guerrero and Alfredo Handig, respectively while "Sante" was not
yet identified and was named "John Doe alias Sante". On September 24 of the same year,
the information was amended by changing the name of the accused John Doe alias Sante to
Crisanto Inoferio y Alindao; and another person, Marciano Yusay, was included among the
accused. Before the trial, upon motion, the trial court discharged Roque Guerrero to be used
as a State witness.

As already above stated, the trial court, in its decision of May 15, 1963, acquitted Handig,
convicted Villacorte who did not appeal, and Yusay who appealed but who withdrew his
appeal, and Inoferio who pursued his appeal.

Upon a careful review of the evidence, We hold that the accused-appellant Crisanto Inoferio
should be acquitted upon the ground that although his defense, in the nature of an alibi, is
inherently a weak defense, it should be considered sufficient as in this case, to tilt the scale
of justice in favor of the accused because the evidence for the prosecution is itself weak and
unconvincing and, therefore, by and large, insufficient to prove the guilt of the accused
beyond reasonable doubt.

Only Modesto Galvez and the State witness, Roque Guerrero, identified the appellant
Inoferio as one of the holduppers. So, let us now review and analyze their testimonies,
especially insofar as they refer to Inoferio, on the one hand, and the evidence of Inoferio, on
the other.

At the time he testified in Court, Modesto Galvez was 21 years old, married and unemployed.
In synthesis, he declared that: In August, 1957, he was working as a helper in the store of
Benito Ching inside the market in Grace Park. Between 7 and 8 o'clock in the evening of
August 27 that year, he and another store helper, Pedro Libantino accompanied Ching in
going home. While they were at F. Roxas Street, they were waylaid by four men.2

He was able to recognize two of them, namely Villacorte and the herein appellant Crisanto
Inoferio who were pointed to by him in open court. Villacorte snatched the bag from Benito
Ching and fired at him once. The bag contained money. Two persons held him. Inoferio was
one of them. He did not know the other one. Inoferio held him, Inoferio was behind and to the
right of Galvez, placing his left hand over the nape of the latter. He was able to recognize
Inoferio because he looked at his left, removed his hand around the front part of his neck,
and he saw tattoo on his forearm. It was the figure of a woman with a bird. The place where
they were waylaid was bright. 3

On cross examination, Galvez admitted that he saw accused-appellant Inoferio for the first
time only on that night of August 27, 1959. The place was lighted from two electric posts; one
in the alley and the other east of the alley, corner of the alley and F. Roxas street. He was
scared at the time he was held up. When he was held by two persons, one at his back (by
appellant Inoferio) and another at his front, he was scared. He did not move nor run away
until they released him. Inoferio was holding him with his left arm, held him tight around the
neck; it was difficult to unloose his hold; the left forearm was so close to his neck that he
could hardly breathe; and immediately after being released, he ran away.4

On further cross examination, the witness testified: The morning following August 27, 1959,
he went to the police station in Caloocan. Three officers interrogated him. He was still scared
and was not able to tell them anything.5
On September 11, 1957, he was brought by some PC officers to the CIS office, Camp
Crame. He was interrogated by agents Rodolfo Estevez and Florencio Suela. They asked
him to relate the details of the incident as best as he could. His statement was taken down in
writing. He signed that statement under oath before Assistant Fiscal Castillo. The last
question asked of him was: "Do you have anything more to say?" And his answer was: "No
more". In that investigation, he said that he saw only three holduppers. In that sworn
statement, although he did not mention the name of Inoferio, he stated that he saw a tattoo
on the arm of the person who held his neck that night. His sworn statement consisting of two
pages has been marked as Exh. "1-Inoferio".

Reading the sworn statement of Modesto Galvez (Exh. "1-Inoferio"), it appears that it was
taken on September 11, 1959 but subscribed and sworn to before Assistant Fiscal Jose
Castillo on September 12, 1959. It is a fact that in this statement, he mentioned that they
were held up only by three persons. But, contrary to his statement in Court, he did not
mention in this sworn statement (Exh. "1-Inoferio") that the one who held him by the neck
had a tattoo on his arm.

Let us now go to the testimony of Roque Guerrero. On direct examination, he declared: He

knows the accused Violeto Villacorte. He had known him for a long time already. He knows
the accused Alfredo Handig. He also knows the accused Crisanto Inoferio alias "Sante". He
came to know him because they used to play cara y cruz in 1959. As far as he knows,
Crisanto Inoferio is a Visayan. He also knows the accused Marciano Yusay.

In July, 1959, while he was driving a tricycle, Violeto Villacorte called him and asked if he
wanted to make some money by waylaying somebody. He did not agree and he continued
driving the tricycle. After two weeks, they saw each other again when he was driving a
tricycle. Villacorte again asked him if he wanted to make some money. He did not agree.
Then, in the afternoon of August 29, 1959, Villacorte met him again. His companions then
were Alfredo Handig, Marciano Yusay and "Sante". Villacorte asked him if he was not really
going with them. His answer was how could he go when "Sante" did not want to tell him the
person to be waylaid. Handig told him to go. "Sante" also told him that he go with them.
Yusay even pulled out his .45 caliber gun and threatened him, telling him: "Don't be afraid,
this is what we are going to use." Guerrero told them that he could not go with them because
"he is my kuya," referring to Benito Ching. When Villacorte told him that they were going to
rob Ching, he left them but Alfredo Handig and "Sante" followed him. They told him that they
would kill him if he would approach anybody. He continued driving his tricycle but they
followed him. They left already however at about 7 o'clock that evening.6

On cross examination, Guerrero declared: At the time he met "Sante", he was dressed in
long sleeve — he was always wearing long sleeve shirt in the same manner that he was
dressed while Inoferio was in Court at the time this witness was cross examined.7

On the night of August 8, 1959, he was arrested in connection with an attempt to rob the
store of Benito Ching. He was prosecuted for vagrancy and he pleaded guilty. He was
sentenced to ten days imprisonment. Subsequently, he was charged with attempted robbery.
When investigated by the CIS agents, he did not reveal to them anything. He gave a written
statement at Camp Crame on September 21, 1959. In that statement, he told "the entire truth
of what you (Guerrero) knew about the entire case."8 In this statement, Guerrero mentioned
only "Sante" as among those who talked to him, but did not mention his name Crisanto
Inoferio.
The appellant Crisanto Inoferio, testifying in his defense, stated that he was 39 years old,
single, house painter, and a resident of 1691 Alvarez St., Sta. Cruz, Manila.9 He came to
know the accused Violeto Villacorte for the first time only in Camp Crame on September 12,
1959. He came to know the accused Alfredo Handig for the first time also on September 12,
1959 but in the Caloocan Police Department. He came to know the accused who became a
State witness, Roque Guerrero, for the first time sometime before August, 1959 at Caloocan.
He used to ride in his tricycle and they often played cara y cruz together. 10

He had been to the CIS office at Camp Crame two times. The first was on September 12,
1959. In the morning of that date, he was invited by the policemen of Caloocan to go to their
headquarters. He was made to wait there because some CIS agents would come. They
came at about 1 to 2 o'clock in the afternoon. The Caloocan police officers and the CIS
agents talked to each other. After a while, the CIS said that they would bring him to their
headquarters. The Caloocan police officers answered that they themselves would take him
to Camp Crame which they did. They were Pat. Cadoy, Cpl. Mauricio and another police
lieutenant whom he did not know. He was brought to the CIS headquarters at Camp Crame
at about 3 o'clock already that afternoon. 11

When he, Inoferio, was brought upstairs, the accused Villacorte was going down. He did not
mind him because he did not know him then. Upon reaching the office of Capt. Calderon, he
was made to sit down. Later on, Villacorte and his companion came in. His companion asked
Villacorte if he knew him (Inoferio) and Villacorte answered in the negative. He was also
asked if he knew Villacorte and his answer was in the negative. Then the accused Handig
was brought and in the confrontation, both of them stated that they did not know each
other. 12

Then he was brought to another room by the CIS agent who said: "You are lucky you don't
know those people. "After that, he told them that he was not "Sante" because his nickname
was "Santing." 13

Towards the afternoon, he was given food to eat. While he was eating, the Caloocan
policemen told him not to finish eating anymore as they were going home. And they left
Camp Crame at about past 6 o'clock in the afternoon of September 12, 1959. When they
reached Grace Park, Caloocan, the Policemen told him to go home because he had no
case. 14

The second time he was at Camp Crame was on September 21, 1959. At about 2 o'clock in
the afternoon, some CIS agents went to his house and upon their invitation, he went with
them to Camp Crame. They arrived there at about 5 o'clock in the afternoon. While they
were walking at the corridor, they saw Capt. Calderon talking with Roque Guerrero. The CIS
agent asked him if he knew Guerrero and he said yes. Guerrero was asked if he knew him
and he answered in the affirmative. Then he was brought to a cell at the groundfloor. At
about 6 o'clock in the afternoon, CIS agent Morales came and brought him upstairs. He was
asked if he was drinking wine and when he answered in the affirmative, wine was brought.
Morales opened the bottle and he was asked to drink. While he was drinking, Morales told
him: "I want to help you but you also help me." His answer was: "What help can I do?" And
the reply was: "I'll make you a witness for the government." He asked Morales what he would
testify and the answer was: "At the trial, point to Violeto Villacorte, Alfredo Handig and Roque
Guerrero as the persons who robbed the Chinese and that they were inviting you to join
them." His answer was: "That is bad Mr. Morales. I do not know anything about the case you
are talking about. I even do not know Alfredo Handig and Violeto Villacorte." Morales stood
up, took him downstairs and told him to think about the matter. He was again brought to his
cell. 15

The following morning, after Inoferio had just taken his breakfast, Morales came and told
him: "What about the matter we talked about last night, have you come to think about it?" He
said: "I am sorry, I cannot do what you are asking me." Then Morales replied: "You might
regret, I can also secure another witness," and he left. At about 11 o'clock that morning,
Morales returned with somebody named Galvez whom he did not know. Morales then told
him to take off his clothes. After he had taken off his shirt, Morales saw the tattoo on his
arms (anterior portion of his left forearm). Morales then told him to show his arm with the
tattoo to Galvez. After a few minutes, Morales and Galvez left. At about 5 o'clock in the
afternoon, Morales came, brought him out of his cell and conducted him upstairs. While they
were inside a room, Morales asked him questions which he, the latter, typed. Whenever he
would not be able to answer Morales, Morales would slap him. Morales even tied his belt
around his neck and whenever he could not answer the questions, Morales would just pull
the belt. After the questioning by Morales in that afternoon of September 22, 1959, he was
made to sign his statement. At that time, Capt. Calderon was passing by the corridor. Then
he was placed in his cell. 16

The next day, he was brought out his cell, was brought to the stockade and then afterwards,
to the provincial jail in Pasig. 17

Inoferio categorically denied the testimony of Roque Guerrero that he was with Handig,
Yusay, and Villacorte on August 27, 1959, and that before that date, he and his companions
were inviting him (Guerrero) to join them to holdup somebody. And the reason why Roque
Guerrero testified against him was that Guerrero thought that he was arrested because
Inoferio pointed to him when they met at Camp Crame. But Inoferio said that he pointed to
Guerrero only when he was asked by the CIS where Guerrero was. 18

Inoferio denied the testimony of Galvez that he (Inoferio) was one of those that embraced
him (Galvez) during the holdup. 19 He categorically stated that he had not known Galvez nor
have met him prior to August 27, 1959. He came to know Villacorte for the first time on
September 12, 1959 when they met at the stairway of a building Camp Crame where he was
interrogated. It was while he was coming up said stairway when he met Violeto Villacorte for
the first time. Villacorte was then coming down the stairs. He admitted that before August,
1959, he already knew Roque Guerrero. 20

Violeto Villacorte, the person identified as the bag snatcher and the one who shot Benito
Ching, declared: He came to know Crisanto Inoferio for the first time when he met at Camp
Crame on September 12, 1959. Before August 27, 1959, he had not yet met Inoferio. 21

Another co-accused, Alfredo Handig, testified that he came to know Crisanto Inoferio for the
first time on September 12, 1959 in the municipal building of Caloocan. He categorically
declared that prior to this date, he did not know said Crisanto Inoferio. 22

By way of background to our findings of facts which justify the acquittal of appellant Inoferio,
we now recapitulate the evidence against the accused Violeto Villacorte, Marciano Yusay,
and Alfredo Handig.

Violeto Villacorte was positively identified by prosecution witnesses Libantino and Galvez.
And in an extrajudicial statement secured from him by CIS investigators and which he signed
and swore to before the Assistant Fiscal of Rizal in Pasig, Villacorte admitted his role as
mastermind of the plan to waylay Benito Ching and his having grabbed the paper bag
containing the proceeds of the sales of the sari-sari store of the Chinaman. He likewise
admitted responsibility for firing the pistol that snuffed the life of Benito Ching.

Marciano Yusay was equally identified positively by Pedro Libantino and Modesto Galvez as
one of those present when Villacorte was planning the holdup and at the time of the holdup.
And in the ante mortem statement of Benito Ching made to his wife Candida Pasion, he said
that Marciano Yusay was one of those who held him up.

Alfredo Handig, on the other hand, although mentioned by accused Villacorte as one of his
companions in the planning and in the execution of the robbery, prosecution witnesses
Libantino and Galvez never identified him positively because of which he was acquitted by
the trial court.

With respect to the herein appellant Crisanto Inoferio, the evidence of the prosecution to the
effect that he was one of the holduppers is weak and unconvincing.

In the investigations conducted by the Caloocan Police Department, both Modesto Galvez
and Pedro Libantino never mentioned appellant Inoferio as one of those who either planned
or executed the robbery and killing although the name of Villacorte was mentioned by
Libantino. In the examination conducted by the CIS investigators at Camp Crame, again
Inoferio's name was never mentioned by both prosecution witnesses although Villacorte's
and Yusay's names were now mentioned and linked to the crime.

When the accused Villacorte was subjected to a thorough investigation by the CIS agents,
he admitted his part in the planning and in the commission of the crime and named Marciano
Yusay, Alfredo Handig and a certain "Sante". Again, Inoferio at this stage of the investigation
had as yet to be linked to this person called "Sante" and to the crime.

In court, Libantino never identified Inoferio. More than that, he contradicted Galvez, for while
the latter testified that the man who had his arm around his neck was Inoferio, Libantino who
was the one face to face with the man who had his arm around Galvez, said that it was the
accused Marciano Yusay. 23 And Libantino declared that the place where the holdup and the
shooting incident took place was in a dark "kalyehon," that was why he could not identify the
gunman nor the latter's companions. This contradicts the testimony of Galvez that the place
where the holdup and the shooting took place, was lighted from electric posts. Libantino said
that these two electric posts were quite far from the scene of the crime; they were 10 meters
away.

And as we consider the testimony of Modesto Galvez, even by itself, we conclude that he
was not able to see the face of the man who held him around his neck and therefore could
not possibly identify him. He was scared at the time. The one holding him by the neck was at
his back. And immediately after he was released, he ran away.

Let us now go to the telltale tattoo, the figure of a woman with a bird, on the left forearm of
Inoferio. Yes, Inoferio has that tattoo. And according to Galvez, the one who held him around
his neck was Inoferio because he saw the tattoo of Inoferio when he looked at his left and
tried to remove the arm of the man holding him by his neck. But any other person could have
that kind of a tattoo, the figure of a woman with a bird. But it may be asked: How did Galvez
come to know that Inoferio had that tattoo? The answer is furnished by the testimony of
Inoferio. We have taken pains to give the synthesis of his entire testimony, and we are
satisfied that he told the truth, particularly on the point that when he was brought to Camp
Crame for the second time on September 21, 1959, he was told to remove his clothes and
show his arm with the tattoo to Galvez.

On top of all of these, there is the testimony in open court by Galvez that as early as
September 11, 1959, when he was investigated at the CIS office in Camp Crame, he already
stated and specifically in his sworn statement given on that date but subscribed and sworn to
before Assistant Fiscal Castillo the following day, that the one who held him by the neck had
a tattoo on his arm. We have gone over this written sworn statement and we do not see any
mention therein by Galvez of a tattoo on the arm of person that held him.

And how could Galvez have seen the tattoo on the arm of the man who held him by the neck
when according to Guerrero, "Sante" was dressed in long sleeve in the afternoon of the
holdup (the prosecution would want to prove that "Sante" is the accused Crisanto Inoferio).

Therefore, the authorities cited by the prosecution that written statements of witnesses to
police authorities are usually sketchy and incomplete; that as a matter of fact, it is natural for
even material matters to be left out when a person gives a sworn statement during a criminal
investigation, do not here apply. The fact is that Galvez told a lie when he said that in his
written statement he declared that the man who held him had a tattoo.

How about the testimony of Roque Guerrero, the second and the only other witness linking
the appellant Inoferio to the robbery holdup in question? He was not there at the scene of the
crime. All that he said was that he was asked three times before the robbery holdup took
place to go with the holduppers. But Villacorte, Yusay and Handig denied this testimony of
Guerrero. And of course, Inoferio also denied it.

But what is most significant is the fact that all along, he was referring to "Sante" as the one
who was with the group when he was asked to join them in the robbery holdup. As early as
in his written statement given at Camp Crame on September 21, 1959, he referred to one of
the holduppers as "Sante"; he never mentioned therein the name of Crisanto Inoferio; and
yet it is a fact, admitted by both Guerrero and Inoferio, that they had known each other long
before the robbery holdup took place on August 27, 1959. Therefore, if Inoferio was the
"Sante" with the group of the holduppers, Guerrero should have referred to him as Inoferio in
his written statement of September 21, 1959.

And Crisanto Inoferio is not "Sante". He is the best witness to testify on his nickname and he
said that his nickname is "Santing".

Furthermore, this witness Guerrero has very poor credentials as far as his credibility is
concerned. He was, at the time he testified, 18 years old, single and unemployed. And on
cross examination, he admitted that on August 1959, he was arrested in an attempt to rob
the store of Benito Ching; he was prosecuted for vagrancy; pleaded guilty and sentenced to
ten days imprisonment. Subsequently, he was charged with attempted robbery.

And assuming that appellant Inoferio was the "Sante" who took part in the planning of the
robbery holdup in question, which is not the fact in this case, that in itself would not make
him incur any criminal liability if later on there is not that sufficient evidence to prove that he
actually took part in the robbery holdup. For after taking part in the planning, he could have
desisted from taking part in the actual commission of the crime by listening to the call of his
conscience. This exempts him from criminal liability whatsoever.
Against the weak and unconvincing evidence of the prosecution regarding appellant Inoferio
are his testimony and those of the witnesses who corroborated him.

At the time he testified, Inoferio was 39 years old, single, and a house painter. The flow of
events as related by him in his testimony, a synopsis of which we have already given earlier,
is so natural and convincing as to set at ease the mind and the conscience of the Court that
he was telling the truth. He denied any participation in the robbery holdup in question.
Moreover, that he did not know co-accused Villacorte and Handig at the time the crime was
committed on August 27, 1959. He came to know them only when these two were already
arrested, a fact corroborated by Villacorte and Handig. Even at the confrontation before
police officers and CIS agents, Inoferio, on one hand, and his two co-accused, on the other,
already denied having known each other earlier.

The motive of Guerrero in testifying against Inoferio was explained by the latter, and that is,
that Guerrero thought, when Inoferio pointed to him at Camp Crame that Inoferio was
implicating Guerrero in the robbery holdup. And Galvez, who never implicated Inoferio when
investigated by the Caloocan police officers in the evening of August 27, 1959 and when
investigated by the CIS Camp Crame on September 11, 1959, must have based his
testimony in court, where he identified Inoferio, on the erroneous information supplied to him
that "Sante" (one of the holduppers) was Inoferio.

This is good a time as any to emphasize the fact that courts should not at once look with
disfavor at the defense of alibi. Although inherently weak and easily fabricated, the evidence
presented by an accused in support of that defense must be scrutinized with the same care
that evidence supporting other defenses deserves. When an accused puts up the defense of
alibi, the court should not at once have a mental prejudice against him. For, taken in the light
of all the evidence on record, it may be sufficient to acquit him, as in the case of appellant
Inoferio.

WHEREFORE, the decision appealed from convicting the accused-appellant Crisanto

Inoferio is hereby reversed and he is hereby acquitted with costs de oficio. It appearing that
he is at present detained at the New Bilibid Prisons at Muntinlupa, his immediate release is
hereby ordered. So ordered.

[G.R. No. L-19069. October 29, 1968.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. AMADEO PERALTA ET

AL., Defendants. ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, AMADEO
PERALTA, FLORENCIO LUNA and GERVASIO LARITA, defendants-review.

Assistant Solicitor General Vicente A. Torres and Antonio Ibarra for Plaintiff-Appellee.

J.R. Nuguid for defendants-review.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; ALIBI; MERE DENIAL CANNOT PREVAIL OVER POSITIVE
IDENTIFICATION OF ACCUSED BY PROSECUTION WITNESSES. — The defense of alibi is generally
weak since it is easy to concoct. For this reason, courts view it with no small amount of caution and
accept it only when proved by positive, clear and satisfactory evidence. In the case at bar, if
Parumog and Larita were really confined in me police trustee brigade for investigation on the day of
the incident, there should have been a record of the alleged investigation. But none was presented.
The rule is settled that the defense of alibi is worthless in the face of positive identification by
prosecution witnesses pointing to the accused as particeps criminis. Moreover, the defense of alibi is
an issue of fact the resolution of which depends almost entirely on the credibility of witnesses who
seek to establish it. In this respect the relative weight which the trial judge accords to the testimony
of the witnesses must, unless patently inconsistent with the evidence on record, be accepted. In the
case at bar, the trial court, in dismissing the case of Parumog, Larita and Luna, said that "their mere
denial cannot prevail over the positive testimony of the witnesses who saw them participate directly
in the execution of the conspiracy to kill Barbosa, Carriego and Santos Cruz." cralaw virtua 1aw lib rary

2. CRIMINAL LAW; CONSPIRACY; DOCTRINE. — A conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it. Generally,
conspiracy is not a crime except when the law specifically provides for a penalty therefore as in
treason, rebellion and sedition. The crime of conspiracy known to the common law is not an
indictable offense in the Philippines. An agreement to commit a crime is a reprehensible act from
the viewpoint of morality, but as long as the conspirators do not perform overt acts in furtherance
of their malevolent design, the sovereignty of the State is not outraged and the tranquillity of the
public remains undisturbed. However, when in resolute execution of a common scheme, a felony is
committed by two or more malefactors, the existence of conspiracy assumes pivotal importance in
the determination of liability of the perpetrators.

3. ID.; ID.; EXPRESS OR IMPLIED CONSPIRACY WHEN PROVED MAKES THE CONSPIRATORS LIABLE
AS CO-PRINCIPAL. — Once an express or implied conspiracy is proved, all of the conspirators are
liable as co- principals regardless of the extent and character of their respective active participation
in the commission of the crime or crimes perpetrated in furtherance of the conspiracy because in
contemplation of law the act of one is the act of all. When two or more persons unite to accomplish
a criminal object, whether through the physical volition of one, or all, proceeding severally or
collectively, each individual whose evil will actively contribute to the wrong-doing is in law
responsible for the whole, the same as though performed by himself alone. Although it is axiomatic
that no one is liable for acts other than his own. "when two-or more persons agree or conspire to
commit a crime, each is responsible for al the acts of the others, done in furtherance of the
agreement or conspiracy." The moment it is established that the malefactors conspired and
confederated in the commission of the felony proved, collective liability of the accused conspirators
attaches by reason of the conspiracy, and the court shall not speculate nor even investigate as to
the actual degree of participation of each of the perpetrators present at the scene of the crime. As
to any conspirator who was remote from the situs of aggression, he could be drawn within the
enveloping ambit of the conspiracy if it be proved that through his moral ascendancy over the rest
of the conspirators the latter were moved or impelled to carry out the conspiracy. In fine, the
convergence of the wills of the conspirators in the scheming and execution of the crime amply
justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy is
generally viewed not as a separate indictable offense, but a rule for collectivising criminal liability.

4. ID.; ID.; PRESENCE THEREOF IN MALVERSATION. — The crime of malversation is generally

committed by an accountable public officer who misappropriates public funds or public property
under his trust. However, in the classic case of People v. Ponte this Court unequivocally held that a
janitor and five municipal policemen, all of whom were not accountable public officers, who
conspired and aided a municipal treasurer in the malversation of public funds under the latter’s
custody, were principally liable with the said municipal treasurer for the crime of malversation. By
reason of conspiracy, the felonious act of the accountable public officer was imputable to his co-
conspirators, although the latter were not similarly situated with the former in relation to the object
of the crime committed. Furthermore, "the private party does not act independently from the public
officer: rather, he knows that the funds of which he wishes to get possession are in the latter’s
charge, and instead of trying to abstract them by circumventing the others’ vigilance he resorts to
corruption, and in the officer’s unfaithfulness seeks and finds the most reprehensible means of
accomplishing a deed which by having a public officer as its moral instrument assumes the
character of a social crime." In an earlier case a non-accountable officer of the Philippine
Constabulary who conspired with his superior, a military supply officer, in the malversation of public
funds was adjudged guilty of as co-principal in the crime of malversation, although it was not
alleged, and in fact it clearly appeared, that the funds misappropriated were not in his custody but
were under the trust of his superior, as accountable public officer.

5. ID.; ID.; PRESENCE THEREOF IN RAPE. — In rape, a conspirator is guilty not only of the sexual
assault he personally commits but also of the separate and distinct crimes of rape perpetrated by
his conspirators. He may have had carnal knowledge of the offended woman only once but his
liability includes that pertaining to all the rapes committed in furtherance of the conspiracy.

6. ID.; ID.; PRESENCE THEREOF IN ROBBERY IN BAND. — With respect to robbery in band, the law
presumes the attendance of conspiracy so much so that "any member of a band who is present at
the commission of a robbery by the band, shall be punished as principal of any of the assaults
committed by the band, unless it be shown that he attempted to prevent the sine. In this instance,
conspiracy need not be proved, as long as the existence of a band is clearly established.
Nevertheless, the liability of a member of the band for the assaults committed by his group is
likewise anchored on the rule that the act of one is the act of all.

7. ID.; ID.; PROOF OF CONSPIRACY. — While conspiracy to commit a crime must be established by
positive evidence, direct proof is not essential to show conspiracy. Since by its nature, conspiracy is
planned in utmost secrecy, it can seldom be proved by direct evidence. Consequently, competent
and convincing circumstantial evidence will suffice to establish conspiracy. Conspiracy presupposes
the existence of a preconceived plan or agreement. However, to establish conspiracy, "it is not
essential that there be proof as to previous agreement to commit a crime, it being sufficient that
the malefactors shall have acted in concert pursuant to the sine objective. Hence, conspiracy is
proved if there is convincing evidence to sustain a finding that the malefactors committed an
offense in furtherance of a common objective pursued in concert.

8. ID.; ID.; LIABILITY OF CONSPIRATORS. — A time-honored rule in the corpus of our

jurisprudence is that once conspiracy is proved, all of the conspirators who acted in furtherance of
the common design are liable as co-principals. This rule of collective criminal liability emanates from
the snaring nature of conspiracy. The concerted action of the conspirators in consummating their
common purpose is a patent display of their evil partnership, and for the consequences of such
criminal enterprise they must be held solidarily liable. To hold an accused guilty as co-principal by
reason of conspiracy, it must be established that he performed an overt act in furtherance of the
conspiracy, either by actively participating in the actual commission of the crime, or by lending
moral assistance to his co-conspirators by being present at the scene of the crime, or by exerting
moral ascendency over the rest of the conspirators as to move them to executing the conspiracy.
The difference between an accused who is a principal under any of the three categories enumerated
in Art. 17 of the Revised Penal Code and a co-conspirator who is also a principal is that while the
former’s criminal liability is limited to his own acts, as a general rule, the latter’s responsibility
includes the acts of his fellow conspirators.

9. ID.; ID.; IMPOSITION OF MULTIPLE PENALTIES WHERE CONSPIRATORS COMMIT MORE THAN
ONE OFFENSE. — Since in conspiracy, the act of one is the act of all, then, perforce, each of the
conspirators is liable for all of the crimes committed in furtherance of the conspiracy. Consequently,
if the conspirators commit three separate and distinct crimes of murder in effecting their common
design and purpose, each of them is guilty of three murders and shall suffer the corresponding
penalty for each offense.

10. ID.; ID.; LEGALITY AND PRACTICALITY OF IMPOSING MULTIPLE DEATH PENALTIES UPON
CONSPIRATORS. — There appears to be no legal reason why conspirators may not be sentenced to
multiple death penalties corresponding to the nature and number of crimes they commit in
furtherance of a conspiracy. Since it is the settled rule that once conspiracy is established, the act of
one conspirator is attributable to all, then each conspirator must be held liable for each of the
felonious acts committed as a result of the conspiracy, regardless of the nature and severity of the
appropriate penalties prescribed by law.

11. ID.; ID.; ID.; EXCEPTIONS TO THE IMPOSITION OF MULTIPLE PENALTIES. — The two
conceptual exceptions are the complex crime under Article 48 of the Revised Penal Code and the
special complex crimes (like robbery with homicide). Anent in ordinary complex crime falling under
article 48, regardless of the multiplicity of offenses committed, there is only one imposable penalty
— the penalty for the most serious offense applied in its maximum period. Similarly, in special
complex crimes, there is but a single penalty prescribed by law notwithstanding the number of
separate felonies committed.

12. ID.; ID.; EVIDENT PREMEDITATION IS NOT ALWAYS INHERENT AND PRESENT IN EVERY
CONSPIRACY. — Evident premeditation is not inherent in conspiracy as the absence of the former
does not necessarily negate the existence of the latter. Unlike in evident premeditation where a
sufficient period of the must elapse to afford full opportunity for meditation and reflection for the
perpetrator to deliberate on the consequences of his intended deed, conspiracy arises at the very
instant the plotters agree, expressly or impliedly, to commit the felony and forthwith decide to
commit it.

13. ID.; PENALTY; IMPOSITION OF A PENALTY DISTINGUISHED FROM THE SERVICE OF A

SENTENCE. — The imposition of a penalty and the service of a sentence are two distinct, though
related, concepts. The imposition of the proper penalty or penalties is determined by the nature,
gravity and number of offenses charged and proved, whereas service of sentence is determined by
the severity and character of the penalty or penalties imposed. In the imposition of the proper
penalty or penalties, the court does not concern itself with the possibility or practicality of the
service of the sentence, since actual service is a contingency subject to varied factors like successful
escape of the convict, grant of executive elemency or natural death of the prisoner. All that go into
the imposition of the proper penalty or penalties, are the nature, gravity and number of the
offenses charged and proved and the corresponding penalties prescribed by law.

DECISION

PER CURIAM:

In the decision in criminal case 7705 of the Court of First Instance of Rizal, subject of the present
automatic review, Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita
and Florencio Luna (six among the twenty-two defendants 1 charged therein with multiple murder)
were pronounced guilty, and all sentenced to death, to indemnify jointly and severally the heirs of
each of the victims, namely, Jose Carriego, Eugenio Barbosa and Santos Cruz, in the sum of P6,000,
and each to pay his corresponding share of the costs.

The information recites.

"That on or about the 16th day of February, 1958, in the municipality of Muntinlupa, province of
Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
who are convicts confined in the New Bilibid Prisons by virtue of final judgments, conspiring,
confederating and mutually helping and aiding one another, with evident premeditation and
treachery, all armed with deadly weapons, did, then and there, willfully, unlawfully and feloniously
kill Jose Carriego, Eugenio Barbosa and Santos Cruz, also convicts confined in the sine institution,
by hitting, stabbing and striking them with ice picks, clubs and other improvised weapons, pointed
and/or sharpened, thereby inflicting upon the victims multiple serious injuries which directly caused
their deaths;

"That the aggravating circumstance of quasi-recidivism is present in the commission of the crime in
that the crime was committed after the accused have been convicted by final judgments and while
they are serving the said judgments in the New Bilibid Prisons.

"Contrary to law with the following aggravating circumstances: jgc:chanrob les.co m.ph

"1. That the crime was committed with insult to public authorities;

"2. That the crime was committed by a band;

"3. That the crime was committed by armed men or persons who insure or afforded impunity;

"4. That use of superior strength or means was employed to weaken the defense;

"5. That as a means of the commission of the crime doors and windows have been broken;

"6. That means was employed which add ignominy to the natural effects of the act;

"7. That the crime was committed where public authorities were engaged in the discharge of their
duties." cralaw virtua1aw l ibra ry

Upon motion of the provincial fiscal before trial, the lower court dismissed the charge against one of
the accused 2 for lack of evidence. After the prosecution had rested its case, the charges against six
of the accused 3 were dismissed for failure of the prosecution to establish a prima facie case against
them. One of the defendants died 4 during the pendency of the case. After trial, the court a quo
acquitted eight 5 of the remaining defendants.

As early as in 1956, a great number of inmates confined in the national penitentiary at Muntinglupa
arrayed themselves into two warring gangs, the "Sigue-Sigue" and the "OXO," the former composed
predominantly of Tagalog inmates, the latter comprised mainly of prisoners from the Visayas and
Mindanao. Since then the prison compound has been rocked time and time again by bloody riots
resulting in the death of many of their members and suspected sympathizers. In an effort to avert
violent clashes between the contending groups, prison officials segregated known members of the
"Sigue-Sigue" from those of the "OXO." Building 1 housed "Sigue-Sigue" members, while a majority
of the prisoners confined in Bldg. 4 belonged to the "OXO." Even in Bldg. 4, which is composed of
four brigades, namely, 4-A and 4-B (upper floor) and 4-C and 4-D (first floor), inmates from Visayas
and Mindanao, from whom the "OXO" drew most of its members, were confined in 4-A.

It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary were
preparing to attend Sunday mass, that a fight between two rival members of the "Sigue-Sigue" and
"OXO" gangs occurred in the plaza where the prisoners were assembled, causing a big commotion.
The fight was, however, quelled, and those involved were led away for investigation, while the rest
of the prisoners were ordered to return to their respective quarters. Hardly had conditions returned
to normal when a riot broke out in Bldg. 1, a known lair of the "Sigue-Sigue." The inmates thereof
tried to invade Bldg. 4, where many members and sympathizers of the "OXO" gang were confined.
The timely arrival of the guards forced the invading inmates to retreat and return to Bldg. 1.
Moments later, another riot erupted in Bldg. 4, as the inmates of brigade 4-A destroyed the lock of
their door and then rampaged from one brigade to another. The invading prisoners from 4-A,
mostly "OXO" members and sympathizers, clubbed and stabbed to death Jose Carriego, an inmate
of 4-B. Afterwards, they forcibly opened the door of 4-C, and killed two more inmates, namely,
Eugenio Barbosa and Santos Cruz.

The three victims sustained injuries which swiftly resulted in their death — before they could be
brought to the hospital.

Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm. in depth; (b)
contusion and hematoma of the back of the neck, about 2 inches in diameter; and (c) — five
punctured wounds in the chest, penetrating the lungs. Cause of death: internal hemorrhage from
multiple fatal wounds in the chest.

Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1 cm. in depth;
(b) two penetrating wounds in the abdomen, puncturing the intestines; (c) lacerated wounds on the
right oxilla, 3 cm. in length and 2 cm. in depth; and (d) several bruises at the right and left lower
extremities. Cause of death: shock, secondary to internal hemorrhage in the abdomen.

Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull; (c) wound on
the upper lip cutting the lip in two; (d) seven punctured wounds in the chest, two of which were
penetrating; (e) hematoma on the right hand; and (f) three punctured wounds on the left hand.
Cause of death: fractured skull.

Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while he was
taking his breakfast with Jose Carriego, who was at the time the representative of the prisoners
confined in 4-B to the inmate carcel, he "suddenly heard commotion" near the door of their brigade;
that his fellow prisoners started shouting "pinapasok na tayo," as the invading inmates from brigade
4-A stampeded into 4-B; that he and Carriego took hold of their clubs and stood at the end of the
passageway; that he saw Carriego surrender his club to Andres Factora, an "OXO" member from 4-
A; that as Carriego started to walk away, Factora clubbed Carriego on the nape causing the latter to
fall; that Factora turned up the face of his fallen victim and struck him again in the face; that while
Carriego was in this prostrate position, Amadeo Peralta and Leonardo Dosal, companions of Factora,
repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points by Juanito Marayoc and Avelino
Sauza, both inmates of 4-B. These two prosecution witnesses identified Factora, Peralta and Dosal
as the assailants of Carriego.

From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According to Oscar
Fontillas, an inmate of 4-C, he saw the prisoners from 4-A rushing toward their brigade; that among
the invading inmates who forced open the door of 4-C, with help from the inside provided by
Visayan prisoners confined in 4-C, were Factora, Dosal, Angel Parumog, Gervasio Larita, Ernesto
Fernandez and Jose Tariman; that he saw Factora, Larita and Fernandez kill Barbosa, while the rest
of their companions instructed the Visayans to leave their cell and ordered the "Manila boys"
(Tagalogs) to remain. Antonio Pabarlan, another inmate of 4-C, declared that he saw Peralta stab
Barbosa, as Dosal, Larita, Florencio Luna, Parumog and Factora clubbed the hapless victim. Another
inmate of 4-C, Jose Halili, not only corroborated the testimony of Fontillas and Pabarlan but as well
added grim details. He declared that while Barbosa was trying to hide under a cot, he was beaten
and stabbed to death by Dosal, Parumog, Factora and Fernandez, with Luna, Larita, Pedro Cogol
and Eilel Tuyaga standing guard, armed with clubs and sharp instruments, in readiness to repel any
intervention from the Tagalog inmates. Carlos Espino, also confined in 4-C, declared that he saw
Parumog, Peralta, Factora and Larita assault and kill Barbosa.

The same witnesses for the prosecution testified that after killing Barbosa, the invading "OXO"
members and sympathizers proceeded to hunt for Santos Cruz, another Tagalog like Carriego and
Barbosa. Halili testified that he saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to 4-A from
4-C; that Santos Cruz knelt down and pleaded for his life, saying, "Maawa kayo sa akin. Marami
akong anak;" that Luna and Peralta were unmoved as they stabbed Santos Cruz to death. Pabarlan
declared that after the death of Barbosa, Santos Cruz was brought to 4-A by the invading inmates
but Cruz was able to slip back to his cell only to be recaptured by Factora, Dosal and Luna and
brought to near the fire escape where he was clubbed and stabbed to death by Parumog, Dosal,
Factora and Peralta. Fontillas and Espino corroborated the declarations of Halili and Pabarlan with
respect to the killing of Santos Cruz, and both mentioned Larita as one of the assailants of Cruz.

The trial judge summarized the evidence for the prosecution, thus: jgc:chanrob les.co m.ph

". . . . it clearly appears that the three killings in question were an offshoot of the rivalry between
the two organizations. All those who were killed, namely, Barbosa, Carriego and Santos Cruz, were
Tagalogs and well known as members if not sympathizers of the Sigue Sigue, while the accused so
charged with their killing were mostly members if not sympathizers of the Oxo organization. These
three killings were sparked by the commotion that happened in the plaza between 8:00 and 9:00 in
the morning, while the prisoners were preparing to go to mass . . . It was evident that the clash
that occurred in the plaza produced a chain reaction among the members and followers of the two
organizations. The inmates of Building No. 1, known lair of the Sigue Sigues, bolted the door of their
cells and tried to invade Building No. 4 where a big number of the Oxo members and their
sympathizers were confined, but, however, were forced to retreat by the timely arrival of the guards
who sent them back to their building. When the members of the Oxo in Building No. 4 learned about
this, they went on a rampage looking for members of the Sigue Sigue or their sympathizers who
were confined with them in the same building. As the evidence of the prosecution shows, the
accused who were confined in Brigade 4-A of Building No. 4 led the attack. They destroyed the lock
of their dormitories and with the help of their companions succeeded in bolting the door of the
different brigades, and once they succeeded in bolting the doors of the different brigades, they went
inside and tried to segregate the Tagalogs from their group; that as soon as they discovered their
enemies they clubbed and stabbed them to death . . ." cralaw virtua1 aw libra ry

Admitting that he was one among several who killed Jose Carriego, Peralta nevertheless claims self-
defense. He testified that on the morning of the riot he was attacked by Carriego and Juan Estrella
near the door of 4-A while he was returning to his brigade from the chapel with some companions;
that Carriego clubbed him on the head; that he was able to parry the second blow of Carriego and
then succeeded in squeezing Carriego’s head with his hands; that forthwith he whipped out an
improvised ice pick and stabbed Carriego several times; that when he (Peralta) was already dizzy
due to the head wound he sustained from the clubbing, Carriego managed to slip away; that he
then became unconscious, and when he regained consciousness he found himself on a tarima, with
his head bandaged.

Peralta’s declarations do not inspire belief. The impressive array of prosecution witnesses who saw
him actively participate in the killing of the three victims pointed to him as the aggressor, not the
aggrieved. Pineda, Marayoc and Sauza positively identified him as one of the assailants of Carriego.
Contrary to the pretensions of Peralta, Carriego, an alleged "Sigue-Sigue" member would not have
attacked him, knowing fully well that Building No. 4 was an "OXO" lair where the "Sigue-Sigue"
members were outnumbered. Anent the killing of Barbosa and Santos Cruz, Peralta failed to offer
any explicit defense to rebut the inculpatory declarations of prosecution witnesses Pabarlan and
Espino who saw him participate in the killing of Barbosa and those of Halili, Fontillas and Espino who
identified him as one of the murderers of Santos Cruz.

For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-defense in
exculpation. He declared that Santos Cruz, Jose Carriego, Juanito Espino, Carlos Espino and Oscar
Fontillas invaded 4-A where he was confined; that a free-for-all forthwith ensued; that he then
heard Santos Cruz call Carlos Espino, and advise the latter to go away as "I will be the one to kill
that person (Dosal);" that with a sharp instrument, Cruz hit him on the head and then on the nose;
that as Cruz was about to hit him again, he got hold of his ice pick and stabbed Cruz repeatedly
until the latter fell.

Dosal’s avowal is clearly belied by the positive testimonies of Pabarlan, Halili and Espino who saw
him participate in the killing of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-
defense when the latter together with his companions supposedly invaded Dosal’s brigade (4-A),
why is it that the body of Santos Cruz was found at the fire escape near the pasillo between 4-C and
4-D of the first floor of Bldg. 1 instead of in 4-A which is located in the upper floor? Moreover, Dosal
failed to explain why he was seen in 4-C, which he does not deny, since he was an inmate of 4A
where he was allegedly attacked. With respect to the murder of Carriego and Barbosa with which
Dosal was also charged, he did not offer any evidence in his behalf. Hence, the testimonies of
Pineda, Marayoc and Sauza identifying him as one of the killers of Carriego, and those of Pabarlan,
Halili and Espino implicating him in the death of Santos Cruz, stand unrebutted.

Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion of his co-
accused who threatened to kill him if he disobeyed their order; that he did not hit Barbosa anymore
because the latter was already dead; that it was his co-accused who actually killed the three
victims. Again, the declarations of the prosecution witnesses, which were accorded full credence by
the trial court, exposes the guilt of Factora beyond reasonable doubt. In fact, according to Pineda,
whose testimony was corroborated by Marayoc, it was Factora who started the mass assault by
clubbing Carriego treacherously. Fontillas, Halili, Pabarlan and Espino pointed to Factora as one of
the killers of Barbosa, while at least three prosecution witnesses, namely, Pabarlan, Fontillas and
Espino, saw Factora participate in the slaying of Santos Cruz. The active participation of Factora in
the killing, which is a clear index of voluntariness, thus negates his claim of compulsion and fear
allegedly engendered by his co-accused.

Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory device of alibi.
Parumog testified that he did not participate in the killing of the three inmates because he stayed
during that entire hapless day in the office of the trustees for investigation after the flight in the
plaza; that he was implicated in the killing by the prosecution witnesses because of his refusal to
accede to their request to testify against his co-accused; that he is not a Visayan but a Tagalog
from Nueva Ecija. Larita claims that he did not know about the killing until he was informed that
three inmates had died; that on the day in question he was brought to the police trustee brigade for
investigation after the incident in the plaza; that he was escorted back to his brigade only in the
afternoon. Luna likewise disclaims any knowledge of the killing and asserts that for the entire
duration of the riot he remained in his cell (brigade 4-A).

The alibis of Parumog, Larita and Luna merit no credence when set against the positive testimonies
of prosecution witnesses identifying them as participants in the killing of Barbosa and Santos Cruz.
Pabarlan, Espino and Fontillas declared that Larita was one of the killers of Barbosa; Espino and
Fontillas declared that they saw Larita kill Santos Cruz; Pabarlan, and Halili and Espino testified that
they saw Parumog participate in the murder of Barbosa; Espino, Fontillas and Pabarlan stated that
Parumog took part in the killing of Santos Cruz. Pabarlan and Halili declared that Luna participated
in the fatal assault on Barbosa and Santos Cruz.

The alibis of the accused are thus sufficiently overcome by strong evidence to the contrary. The
defense of alibi is generally weak since it is easy to concoct. For this reason, courts view it with no
small amount of caution and accept it only when proved by positive, clear and satisfactory evidence
6 In the case at bar, if Parumog and Larita were really confined in the police trustee brigade for
investigation on the day of the incident, there should have been a record of the alleged
investigation. But none was presented. The testimony of Luna that throughout the riot he stayed in
his cell is quite unnatural. He claims that he did not even help his cell-mates barricade their brigade
with tarimas in order to delay if not prevent the entry of the invading inmates. According to him, he
"just waited in one corner."cralaw virtua1aw lib ra ry

The rule is settled that the defense of alibi is worthless in the face of positive identification by
prosecution witnesses pointing to the accused as particeps criminis. 7 Moreover, the defense of alibi
is an issue of fact the resolution of which depends almost entirely on the credibility of witnesses who
seek to establish it. In this respect the relative weight which the trial judge accords to the testimony
of the witnesses must, unless patently inconsistent with the evidence on record, be accepted. 8 In
the case at bar, the trial court, in dismissing the alibis of Parumog, Larita and Luna, said that "their
mere denial cannot prevail over the positive testimony of the witnesses who saw them participate
directly in the execution of the conspiracy to kill Barbosa, Carriego and Santos Cruz." cralaw vi rtua 1aw lib rary

The killing of Carriego constitutes the offense of murder because of the presence of treachery as a
qualifying circumstance. Carriego was clubbed by Factora from behind, and as he lay prostrate and
defenseless, Peralta and Dosal stabbed him repeatedly on the chest. The blow on the nape and the
penetrating chest wounds were all fatal, according to Dr. Bartolome Miraflor. Abuse of superior
strength qualified the killing of Barbosa and Santos Cruz to the category of murder. The victims,
who were attacked individually, were completely overwhelmed by their assailants’ superiority in
number and weapons and had absolutely no chance at all to repel or elude the attack. All the
attackers were armed with clubs or sharp instruments while the victims were unarmed, as so found
by the trial court. In fact, Halili testified that Barbosa was clubbed and stabbed to death while he
was trying to hide under a cot, and Santos Cruz was killed while he was on his knees pleading for
his life.

The essential issue that next confronts us is whether conspiracy attended the commission of the
murders. The resolution of this issue is of marked importance because upon it depends the quantity
and quality of penalties that must be imposed upon each of the appellants.

For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with particular
emphasis on the facets relating to its nature, the quantum of proof required, the scope and extent
of the criminal liability of the conspirators, and the penalties imposable by mandate of applicable
law.

Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. 9 Generally, conspiracy is not a crime except when
the law specifically provides a penalty therefor as in treason, 10 rebellion 11 and sedition. 12 The
crime of conspiracy known to the common law is not an indictable offense in the Philippines. 3 An
agreement to commit a crime is a reprehensible act from the viewpoint of morality, but as long as
the conspirators do not perform overt acts in furtherance of their malevolent design, the
sovereignty of the State is not outraged and the tranquillity of the public remains undisturbed.
However, when in resolute execution of a common scheme, a felony is committed by two or more
malefactors, the existence of a conspiracy assumes pivotal importance in the determination of the
liability of the perpetrators. In stressing the significance of conspiracy in criminal law, this Court in
U.S. v. Infante and Barreto 14 opined that

"While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a
crime unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a
conspiracy to commit a crime is in many cases a fact of vital importance, when considered together
with the other evidence of record, in establishing the existence of the consummated crime and its
commission by me conspirators." cralaw virt ua1aw li bra ry

Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals
regardless of the extent and character of their respective active participation in the commission of
the crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law
the act of one is the act of one is the all. 15 The foregoing rule is anchored on the sound principle
that "when two or more persons unite to accomplish a criminal object, whether through the physical
volition of one, or all, proceeding severally or collectively, each individual whose evil will actively
contributes to the wrong-doing is in law responsible for the whole, the same as though performed
by himself alone." 16 Although it is axiomatic that no one is liable for acts other than his own,
"when two or more persons agree or conspire to commit a crime, each is responsible for all the acts
of the others, done in furtherance of the agreement or conspiracy." 17 The imposition of collective
liability upon the conspirators is clearly explained in one case 18 where this Court held that.

". . . it is impossible to graduate the separate liability of each (conspirator) without taking into
consideration the close and inseparable relation of each of them with the criminal act, for the
commission of which they all acted by common agreement . . . The crime must therefore in view of
the solidarity of the act and intent which existed between the . . . accused, be regarded as the act
of the band or party created by them, and they are all equally responsible . . ." cralaw virtua 1aw lib rary

Verily, the moment it is established that the malefactors conspired and confederated in the
commission of the felony proved, collective liability of the accused conspirators attaches by reason
of the conspiracy, and the court shall not speculate nor even investigate as to the actual degree of
participation of each of the perpetrators present at the scene of the crime. Of course, as to any
conspirator who was remote from the situs of aggression, he could be drawn within the enveloping
ambit of the conspiracy if it be proved that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out the conspiracy.

In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime
amply justifies the imputation to all of them the act of any one of them. It is in this light that
conspiracy is generally viewed not as a separate indictable offense, but a rule for collectivizing
criminal liability.

The ensnaring nature of conspiracy is projected in bold relief in the cases of malversation and rape
committed in furtherance of a common design.

The crime of malversation is generally committed by an accountable public officer who

misappropriates public funds or public property under his trust." 19 However, in the classic case of
People v. Ponte 20 this Court unequivocally held that a janitor and five municipal policemen, all of
whom were not accountable public officers, who conspired and aided a municipal treasurer in the
malversation of public funds under the latter’s custody, were principally liable with the said
municipal treasurer for the crime of malversation. By reason of conspiracy, the felonious act of the
accountable public officer was imputable to his co-conspirators, although the latter were not
similarly situated with the former in relation to the object of the crime committed. Furthermore, in
the words of Groizard, "the private party does not act independently from the public officer: rather,
he knows that the funds which he wishes to get possession are in the latter’s charge, and instead of
trying to abstract them by circumventing the other’s vigilance he resorts to corruption, and in the
officer’s unfaithfulness seeks and finds the most reprehensible means of accomplishing a deed
which by having a public officer as its moral instrument assumes the character of a social crime." 21
In an earlier case 22 a non-accountable officer of the Philippine Constabulary who conspired with his
superior, a military supply officer, in the malversation of public funds was adjudged guilty as co-
principal in the crime of malversation, although it was not alleged, and in fact it clearly appeared,
that the funds misappropriated were not in his custody but were under the trust of his superior, an
accountable public officer.

In rape, a conspirator is guilty not only of the sexual assault he personally commits but also of the
separate and distinct crimes of rape perpetrated by his co-conspirators. He may have had carnal
knowledge of the offended woman only once but his liability includes that pertaining to all the rapes
committed in furtherance of the conspiracy. Thus, in People v. Villa, 23 this Court held that.

". . . from the acts performed by the defendants from the time they arrived at Consolacion’s house
to the consummation of the offense of rape on her person by each and everyone of them, it clearly
appears that they conspired together to rape their victim, and therefore each one is responsible not
only for the rape committed personally by him, but also that committed by the others, because each
sexual intercourse had, through force, by each one of the defendants with the offended party was
consummated separately and independently from that had by the others, for which each and
everyone is also responsible because of the conspiracy." cralaw virtua1aw l ibra ry

The rule enunciated in People v. Villa was reiterated in People v. Quitain 24 where the appellant
Teofilo Anchita was convicted of forcible abduction with double rape for having conspired and
cooperated in the sexual assault of the aggrieved woman, although he himself did not actually rape
the victim. This Court observed: jgc:cha nrob les.com. ph

"We have no doubt all in all that Teofilo Anchita took part in the sexual assault . . . the accused
inserted his fingers in the woman’s organ, and widened it. Whether he acted out of lewdness or to
help his brother-in-law consummate the act, is immaterial: it was both maybe. Yet, surely, by his
conduct, this prisoner conspired and cooperated, and is guilty." cralaw vi rtua 1aw lib rary

With respect to robbery in band, the law presumes the attendance of conspiracy so much so that
"any member of a band who is present at the commission of a robbery by the band, shall be
punished as principal of any of the assaults committed by the band, unless it be shown that he
attempted to prevent the same." 25 In this instance, conspiracy need not be proved, as long as the
existence of a band is clearly established. Nevertheless, the liability of a member of the band for the
assaults committed by his group is likewise anchored on the rule that the act of one is the act of all.

Proof of conspiracy. While conspiracy to commit a crime must be established by positive evidence,
26 direct proof is not essential to show conspiracy. 27 Since by its nature, conspiracy is planned in
utmost secrecy, it can seldom be proved by direct evidence. 28 Consequently, competent and
convincing circumstantial evidence will suffice to establish conspiracy. According to People v.
Cabrera, 29 "conspiracies are generally proved by a number of indefinite acts, conditions, and
circumstances which vary according to the purposes to be accomplished. If it be proved that the
defendants pursued by their acts the same object, one performing one part and another part of the
same, so as to complete it, with a view to the attainment of the same object, one will be justified in
the conclusion that they were engaged in a conspiracy to effect the object." Or as elucidated in
People v. Carbonel, 30 the presence of the concurrence of minds which is involved in conspiracy
may be inferred from "proofs of facts and circumstances which, taken together, apparently indicate
that they are merely parts of some complete whole. If it is proved that two or more persons aimed
by their acts towards the accomplishment of the same unlawful object, each doing a part so that
their acts, though apparently independent, were in fact connected and cooperative, indicating a
closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred
though no actual meeting among to concert means is proved . . ." In two recent cases, 31 this
Court ruled that where the acts of the accused, collectively and individually, clearly demonstrate the
existence of a common design toward the accomplishment of the same unlawful purpose,
conspiracy is evident.

Conspiracy presupposes the existence of a preconceived plan or agreement; however, to establish

conspiracy, "it is not essential that there be proof as to previous agreement to commit a crime, it
being sufficient that the malefactors shall have acted in concert pursuant to the same objective." 32
Hence, conspiracy is proved if there is convincing evidence to sustain a finding that the malefactors
committed an offense in furtherance of a common objective pursued in concert.

Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that once
conspiracy is proved, all of the conspirators who acted in furtherance of the common design are
liable as co-principals. 33 This rule of collective criminal liability emanates from the ensnaring
nature of conspiracy. The concerted action of the conspirators in consummating their common
purpose is a patent display of their evil partnership, and for the consequences of such criminal
enterprise they must be held solidarily liable.

However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be

established that he performed an overt act in furtherance of the conspiracy, either by actively
participating in the actual commission of the crime, or by lending moral assistance to his co-
conspirators by being present at the scene of the crime, or by exerting moral ascendancy over the
rest of the conspirators as to move them to executing the conspiracy. The difference between an
accused who is a principal under any of the three categories enumerated in Art. 17 of the Revised
Penal Code and a co-conspirator who is also a principal is that while the former’s criminal ability is
limited to his own acts, as a general rule, the latter’s responsibility includes the acts of his fellow
conspirators.

In People v. Izon, Et Al., 34 this Court acquitted appellant Francisco Robles, Jr., who was convicted
by the trial court of robbery with homicide as a conspirator, on the ground that although he may
have been present when the conspiracy to rob was proposed and made, "Robles uttered not a word
either of approval or disapproval. There are authorities to the effect that mere presence at the
discussion of a conspiracy, even approval of it, without any active participation in the same, is not
enough for purposes of conviction." In a more recent case, 35 this Court, in exonerating one of the
appellants, said:jgc:chan robles. com.ph

"There is ample and positive evidence on record that appellant Jose Guico was absent not only from
the second meeting but likewise from the robbery itself. To be sure, not even the decision under
appeal determined otherwise. Consequently, even if Guico’s participation in the first meeting
sufficiently involved him with the conspiracy (as he was the one who explained the location of the
house to be robbed in relation to the surrounding streets and the points thereof through which
entrance and exit should be effected), such participation and involvement, however, would be
inadequate to render him criminally liable as a conspirator. Conspiracy alone, without the execution
of its purpose, is not a crime punishable by law, except in special instances (Article 8, Revised Penal
Code) which, however, do not include robbery." c ralaw virtua1aw l ibra ry

Imposition of multiple penalties where conspirators commit more than one offense. Since in
conspiracy, the act of one is the act of all, then, perforce, each of the conspirators is liable for all of
the crimes committed in furtherance of the conspiracy. Consequently, if the conspirators commit
three separate and distinct crimes of murder in effecting their common design and purpose, each of
them is guilty of three murders and shall suffer the corresponding penalty for each offense. Thus in
People v. Masin, 36 this Court held: jgc:c hanrobles. com.ph

". . . it being alleged in the information that three crimes were committed not simultaneously indeed
but successively, in as much as there was, at least, solution of continuity between each other, the
accused (seven in all) should be held responsible for said crimes. This court holds that the crimes
are murder . . . . In view of all these circumstances and of the frequently reiterated doctrine that
once conspiracy is proven each and every one of the conspirators must answer for the acts of the
others, provided said acts are the result of the common plan or purpose . . . it would seem evident
that the penalty that should be imposed upon each of the appellants for each of their crimes should
be the same, and this is the death penalty . . ." (Emphasis supplied).

In the aforesaid case, however, the projected imposition of three death penalties upon each of the
conspirators for the three murders committed was not carried out due to the lack of the then
requisite unanimity in the imposition of the capital penalty.

In another case, 37 this Court, after finding that conspiracy attended the commission of eleven
murders, said through Mr. Justice Tuason: jgc:chanroble s.com.p h

"Some members of this Court opine that the proper penalty is death, under the circumstances of
the case, but they fall short of the required number for the imposition of this punishment. The
sentence consequently is reclusion perpetua; but each appellant is guilty of as many crimes of
murder as there were deaths (eleven) and should be sentenced to life imprisonment for each crime,
although this may be a useless formality for in no case can imprisonment exceed forty years."
(Emphasis supplied.)

In People v. Masani, 38 the decision of the trial court imposing only one life imprisonment for each
of the accused was modified by this Court on appeal on the ground that "inasmuch as their (the
conspirators’) combined attack resulted in the killing of three persons, they should be sentenced to
suffer said penalty (reclusion perpetua) for each of the three victims (crimes)." (Emphasis
supplied.)

It is significant to note that in the abovementioned cases, this Court consistently stressed that once
conspiracy is ascertained, the culpability of the conspirators is not only solidary (all co-principals)
but also multiple in relation to the number of felonies committed in furtherance of the conspiracy. It
can also be said that had there been a unanimous Court in the Masim and Macaso cases, multiple
death penalties would have been imposed upon all the conspirators.

Legality and practically of imposing multiple death penalties upon conspirators. An accused who was
charged with three distinct crimes of murder in a single information was sentenced to two death
penalties for two murders, 39 and another accused to thirteen (13) separate death penalties for the
13 killings he perpetrated. 40 Therefore there appears to be no legal reason why conspirators may
not be sentenced to multiple death penalties corresponding to the nature and number of crimes
they commit in furtherance of a conspiracy. Since it is the settled rule that once conspiracy is
established, the act of one conspirator is attributable to all, then each conspirator must be held
liable for each of the felonious acts committed as a result of the conspiracy, regardless of the nature
and severity of the appropriate penalties prescribed by law.

The rule on the imposition of multiple penalties where the accused is found guilty of two or more
separate and distinct crimes charged in one information, the accused not having interposed any
objection to the multiplicity of the charges, was enunciated in the leading case of U.S. v. Balaba, 41
thus: Upon conviction of two or more offenses charged in the complaint or information, the
prescribed penalties for each and all of such offenses may be imposed, to be executed in conformity
with the provisions of article 87 of the Penal Code [now article 70 of the Revised Penal Code]. In
other words, all the penalties corresponding to the several violations of law should be imposed.
Conviction for multiple felonies demands the imposition of multiple penalties.

The two conceptual exceptions to the foregoing rule are the complex crime under article 48 of the
Revised Penal Code and the special complex crime (like robbery with homicide). Anent an ordinary
complex crime falling under article 48, regardless of the multiplicity of offenses committed, there is
only one imposable penalty — the penalty for the most serious offense applied in its maximum
period. Similarly, in special complex crimes, there is but a single penalty prescribed by law
notwithstanding the number of separate felonies committed. For instance, in the special complex
crime of robbery with homicide the imposable penalty is reclusion perpetua to death 42 irrespective
of the number of homicides perpetrated by reason or on occasion of the robbery.

In Balaba, the information charged the accused with triple murder. The accused went to trial
without objection to said information which charged him with more than one offense. The trial court
found the accused guilty of two murders and one homicide but it imposed only one death penalty.
In its review en conculta, this Court modified the judgment by imposing separate penalties for each
of the three offenses committed. The Court, thru Mr. Justice Carson (with Mr. Justice Malcolm
dissenting with respect to the imposition of two death penalties), held:jgc:c han robles. com.ph

"The trial judge was erroneously of the opinion that the prescribed penalties for the offenses of
which the accused was convicted should be imposed in accord with the provisions of article 89 of
the Penal Code. That article is only applicable to cases wherein a single act constitutes two or more
crimes, or when one offense is a necessary means for committing the other. (U.S. v. Ferrer, 1 Phil.
Rep., 56)

"It becomes our duty, therefore, to determine what penalty or penalties should have been imposed
upon the accused upon conviction of the accused of three separate felonies charged in the
information.

"There can be no reasonable doubt as to the guilt of the convict of two separate crimes of asesinato
(murder) marked with the generic aggravating circumstances mentioned in the decision of the trial
judge . . . It follows that the death penalty must and should be imposed for each of these offenses.
...

"Unless the accused should be acquitted hereafter on appeal of one or both the asesinatos with
which he is charged in the information, it would seem to be a useless formality to impose separate
penalties for each of the offenses of which he was convicted, in view of the nature of the principal
penalty; but having in mind the possibility that the Chief Executive may deem it proper to grant a
pardon for one or more of the offenses without taking action on the others; and having in mind also
the express provisions of the above cited article 87 of the Penal Code, we deem it proper to modify
the judgment entered in the court below by substituting for the penalty imposed by the trial judge
under the provisions of article 89 of the Code, the death penalty prescribed to law for each of the
two separate asesinatos of which he stands convicted and the penalty of 14 years 8 months and 1
day of reclusion temporal (for the separate crime of homicide) . . . these separate penalties to be
executed in accord with the provisions of article 87 of the Penal Code." (Emphasis supplied.)

The doctrine in Balaba was reiterated in U.S. v. Jamad 43 where a unanimous Court, speaking again
thru Mr. Justice Carson (with Mr. Justice Malcolm concurring in the result in view of the Balaba
ruling), opined:
jgc:cha nro bles.c om.ph

"For all the offenses of which the accused were convicted in the court below, the trial judge imposed
the death penalty, that is to say the penalty prescribed for the most serious crime committed, in its
maximum degree, and for this purpose made use of the provisions of article 89 of the Penal Code
[now article 48 of the Revised Penal Code]. But as indicated in the case of the United States v.
Balaba, recently decided wherein the controlling facts were substantially similar to those in the case
at bar, ‘all of the penalties corresponding to the several violations of law’ should have been imposed
under the express provisions of article 87 [now engrafted in article 70 of the Revised Penal Code]
and under the ruling in that case, the trial court erred in applying the provisions of article 89 of the
code.

"We conclude that the judgment entered in the court below should be reversed, . . . and that the
following separate penalties should be imposed upon him [the accused Jamad], to be executed in
accordance with article 87 of the Penal Code: (1) The penalty of death for the parricide of his wife
Aring; (2) the penalty of life imprisonment for the murder of Labonete; (3) the penalty of life
imprisonment for the murder of Torres; (4) the penalty of 12 years and one day of cadena temporal
for the frustrated murder of Taclind. . . ."
cralaw virt ua1aw lib rary

The doctrine in Balaba was reechoed in People v. Guzman, 44 which applied the pertinent provisions
of the Revised Penal Code, where this Court, after finding the accused liable as co-principals
because they acted in conspiracy, proceeded to stress that where an "information charges the
defendants with the commission of several crimes of murder and frustrated murder, as they failed
to object to the multiplicity of the charges made in the information, they can be found guilty thereof
and sentenced accordingly for as many crimes the information charges them provided that they are
duly established and proved by the evidence on record." (Emphasis supplied.)

The legal and statutory justification advanced by the majority in Balaba for imposing all the
penalties (two deaths and one life imprisonment) corresponding to the offense charged and proved
was article 87 of the old Penal Code which provided: jgc:c hanrobles. com.ph

"When a person is found guilty of two or more felonies or misdemeanors, all the penalties
corresponding to the several violations of law shall be imposed, the same to be simultaneously
served, if possible, according to the nature and effects of such penalties." cralaw virtua 1aw lib rary

in relation to article 88 of the old Code which read: jgc:cha nrob les.com. ph

"When all or any of the penalties corresponding to the several violations of the law can not be
simultaneously executed, the following rules shall be observed with regard thereto: jg c:chan robles. com.ph

"1. In the imposition of the penalties, the order of their respective severity shall be followed so that
they may be executed successively or as nearly as may be possible, should a pardon have been
granted as to the penalty or penalties first imposed, or should they have been served out." cralaw virtua 1aw lib rary

The essence and language, with some alterations in form and in the words used by reason of style,
of the abovecited provisions have been preserved in article 70 of the Revised Penal Code which is
the product of the merger of articles 87 and 88 of the old Penal Code. Article 70 provides: jgc:c hanro bles. com.ph

"When the culprit has to serve two or more penalties, he shall serve them simultaneously if the
nature of the penalties will so permit; otherwise, the following rules shall be observed: jgc:chan roble s.com. ph

"In the imposition of the penalties, the order of their respective severity shall be followed so that
they may be executed successively or as nearly as may be possible, should a pardon have been
granted as to the penalty or penalties first imposed, or should they have been served out." cralaw virtua 1aw lib rary

Although article 70 does not specifically command, as the former article 87 clearly did, that "all the
penalties corresponding to the several violations of law shall be imposed," it is unmistakable,
however, that article 70 presupposes that courts have the power to impose multiple penalties,
which multiple penal sanctions should be served either simultaneously or successively. This
presumption of the existence of judicial power to impose all the penalties corresponding to the
number and nature of the offenses charged and proved is manifest in the opening sentence of
article 70: "When the culprit has to served two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit . . ." (Italics supplied) Obviously, the two
or more penalties which the culprit has to serve are those legally imposed by the proper court.
Another reference to the said judicial prerogative is found in the second paragraph of article 70
which provides that "in the imposition of the penalties, the order of their respective severity shall be
followed . . ." Even without the authority provided by article 70, courts can still impose as many
penalties as there are separate and distinct offenses committed, since for every individual crime
committed, a corresponding penalty is prescribed by law. Each single crime is an outrage against
the State for which the latter, thru the courts of justice, has the power to impose the appropriate
penal sanctions.

With respect to the imposition of multiple death penalties, there is no statutory prohibition or
jurisprudential injunction against it. On the contrary, article 70 of the Revised Penal Code presumes
that courts have the power to mete out multiple penalties without distinction as to the nature and
severity of the penalties. Moreover, our jurisprudence supports the imposition of multiple death
penalties as initially advocated in Balaba and thunderously reechoed in Salazar where the accused
was sentenced on appeal to thirteen (13) death penalties. Significantly, the Court in Balaba imposed
upon the single accused mixed multiple penalties of two deaths and one life imprisonment.

The imposition of multiple death penalties is decried by some as a useless formality, an exercise in
futility. It is contended, undeniably enough, that a death convict, like all mortals, has only one life
to forfeit. And because of this physiological and biological attribute of man, it is reasoned that the
imposition of multiple death penalties is impractical and futile because after the service of one
capital penalty, the execution of the rest of the death penalties will naturally be rendered
impossible. The foregoing opposition to the multiple imposition of death penalties suffers from four
basic flaws: (1) it fails to consider the legality of imposing multiple capital penalties; (2) it fails to
distinguish between imposition of penalty and service of sentence; (3) it ignores the fact that
multiple death sentences could be served simultaneously; and (4) it overlooks the practical merits
of imposing multiple death penalties.

The imposition of a penalty and the service of a sentence are two distinct, though related, concepts.
The imposition of the proper penalty or penalties is determined by the nature, gravity and number
of offenses charged and proved, whereas service of sentence is determined by the severity and
character of the penalty or penalties imposed. In the imposition of the proper penalty or penalties,
the court does not concern itself with the possibility or practicality of the service of the sentence,
since actual service is a contingency subject to varied factors like successful escape of the convict,
grant of executive clemency or natural death of the prisoner. All that go into the imposition of the
proper penalty or penalties, to reiterate, are the nature, gravity and number of the offenses charged
and proved and the corresponding penalties prescribed by law.

Multiple death penalties are not impossible to serve because they will have to be executed
simultaneously. A cursory reading of article 70 will show that there are only two modes of serving
two or more (multiple) penalties: simultaneously or successively. The first rule is that two or more
penalties shall be served simultaneously if the nature of the penalties will so permit. In the case of
multiple capital penalties, the nature of said penal sanctions does not only permit but actually
necessitates simultaneous service.

The imposition of multiple death penalties, far from being a useless formality, has practical
importance. The sentencing of an accused to several capital penalties is an indelible badge of his
extreme criminal perversity, which may not be accurately projected by the imposition of only one
death sentence irrespective of the number of capital felonies for which he is liable. Showing thus the
reprehensible character of the convict in its real dimensions, the possibility of a grant of executive
clemency is justifiably reduced in no small measure. Hence, the imposition of multiple death
penalties could effectively serve as a deterrent to an improvident grant of pardon or commutation.
Faced with the utter delinquency of such a convict, the proper penitentiary authorities would
exercise judicious restraint in recommending clemency or leniency in his behalf.

Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon
(one of the presidential prerogatives which is almost absolute) deems it proper to commute the
multiple death penalties to multiple life imprisonments, then the practical effect is that the convict
has to serve the maximum of forty (40) years of multiple life sentences. If only one death penalty is
imposed, and then is commuted to life imprisonments, the convict will have to serve a maximum of
only thirty years corresponding to a single life sentence.

Reverting now to the case at bar, it is our considered view that the trial court correctly ruled that
conspiracy attended the commission of the murders. We quote with approval the following incisive
observations of the court a quo in this respect: jgc:cha nro bles. com.ph
"Although, there is no direct evidence of conspiracy, the Court can safely say that there are several
circumstances to show that the crime committed by the accused was planned. The following
circumstances show beyond any doubt the acts of conspiracy: First, all those who were killed,
Barbosa, Santos Cruz and Carriego, were Tagalogs. Although there were many Tagalogs like them
confined in Building 4, these three were singled out and killed thereby showing what their killing has
been planned. Second, the accused were all armed with improvised weapons showing that they
really prepared for the occasion. Third, the accused accomplished the killing with team work
precision going from one brigade to another and attacking the same men whom they have
previously marked for liquidation and lastly, almost the same people took part in the killing of
Carriego, Barboso and Santos Cruz." cralaw virtua1aw l ibra ry

It is also important to note that all the accused were inmates of brigade 4-A; that all were from
either the Visayas or Mindanao except Peralta who is from Masbate and Parumog who hails from
Nueva Ecija; that all were either "OXO" members or sympathizers; and that all the victims were
members of the "Sigue-Sigue" gang.

The evidence on record proves beyond peradventure that the accused acted in concert from the
moment they bolted their common brigade, up until the time they killed their last victim, Santos
Cruz. While it is true that Parumog, Larita and Luna did not participate in the actual killing of
Carriego, nonetheless, as co-conspirators they are equally guilty and collectively liable for in
conspiracy the act of one is the act of all. It is not indispensable that a co-conspirator should take a
direct part in every act and should know the part which the others have to perform. Conspiracy is
the common design to commit a felony; it is not participation in all the details of the execution of
the crime. All those who in one way or another help and cooperate in the consummation of a felony
previously planned are co-principals. 45 Hence, all of the six accused are guilty of the slaughter of
Carriego, Barbosa and Santos Cruz — each is guilty of three separate and distinct crimes of murder.

We cannot agree, however, with the trial court that evident premeditation was also present. The
facts on record and the established jurisprudence on the matter do not support the conclusion of the
court a quo that evident premeditation "is always present and inherent in every conspiracy." Evident
premeditation is not inherent in conspiracy as the absence of the former does not necessarily
negate the existence of the latter. 46 Unlike in evident premeditation where a sufficient period of
time must elapse to afford full opportunity for meditation and reflection for the perpetrator to
deliberate on the consequences of his intended deed, conspiracy arises at the very instant the
plotters agree, expressly or impliedly, to commit the felony and forthwith decide to commit it. 47
This view finds added support in People v. Custodio, 48 wherein this Court stated: jgc:chanro bles. com. ph

"Under normal conditions, where the act of conspiracy is directly established, with proof of the
attendant deliberation and selection of the method, time and means of executing the crime, the
existence of evident premeditation can be taken for granted. In the case before us, however, no
such evidence exists; the conspiracy is merely inferred from the acts of the accused in the
perpetration of the crime. There is no proof how and when the plan to kill Melanio Balancio was
hatched, or what time elapsed before it was carried out; we are, therefore, unable to determine if
the appellants enjoyed sufficient time between its inception and its fulfillment dispassionately to
consider and accept the consequences.’ (cf. People v. Bangug, 52 Phil. 91). In other words, there is
no showing of the opportunity for reflection and the persistence in the criminal intent that
characterize the aggravating circumstance of evident premeditation (People v. Mendoza, 91 Phil.
58; People v. Iturriaga, 47 Off. Gaz., [Supp. to No. 12] 166; People v. Lesada, 70 Phil. 525.)"

Not a single extenuating circumstance could be appreciated in favor of any of the six accused, as
they did neither allege nor prove any.

In view of the attendance of the special aggravating circumstance of quasi-recidivism, as all of the
six accused at the time of the commission of the offenses were serving sentences 49 in the New
Bilibid Prison at Muntinlupa, by virtue of convictions by final judgments, the penalty for each offense
must be imposed in its maximum period, which is the mandate of the first paragraph of article 160
of the Revised Penal Code. Viada observes, in apposition, that the severe penalty imposed on a
quasi-recidivist is justified because of his perversity and incorrigibility. 50

ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres Factora,
Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are each pronounced guilty of
three separate and distinct crimes of murder, and are each sentence to three death penalties; all of
them shall, jointly and severally, indemnify the heirs of each of the three deceased victims in the
sum of P12,000; 51 each will pay one-sixth of the costs.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN DE

VERA y GARCIA, RODERICK GARCIA y GALAMGAM,
KENNETH FLORENDO and ELMER CASTRO, accused,
EDWIN DE VERA y GARCIA, appellant.

DECISION
PANGANIBAN, J.:

When is a lookout deemed an accomplice and when a conspirator? What is the

distinction between the two?

Statement of the Case

These are the main questions passed upon by the Court in resolving the present
appeal, which assails the March 12, 1997 Decision[1] of the Regional Trial Court of
Quezon City (Branch 57) in Criminal Case No. Q-92-31323, finding Appellant Edwin De
Vera and Accused Roderick Garcia guilty beyond reasonable doubt of murder and
sentencing them to reclusion perpetua.
In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero
charged with murder Appellant Edwin De Vera, together with Roderick Garcia and two
other persons who were subsequently identified during the trial as Kenneth Florendo and
Elmer Castro. The crime was allegedly committed as follows:

That on or about the 8th day of June, 1992, in Quezon City, Philippines, the
said accused, conspiring [and] confederating [with] and helping xxx two (2)
other persons, did then and there wilfully, unlawfully and feloniously with
intent to kill, with evident premeditation, treachery and use of superior strength,
attack, assault and employ personal violence upon the person of one
FREDERICK CAPULONG y DIZON, by then and there shooting him with the
use of a .22 cal. with trade mark Paspar Armas bearing SN-29069 with five (5)
pieces of caliber 22 ammo inside, hitting him between his eyes and striking him
with the use of a baseball bat in the mouth, thereby inflicting upon him serious
and mortal wounds which were the direct and immediate cause of his untimely
death, to the damage and prejudice of the heirs of the said Frederick Capulong
y Dizon.[2]
 On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to
Amend the Information to include the use of a .32 caliber firearm in the killing of
Frederick Capulong. The trial court granted the Motion, and the Amended Information
now reads as follows:

That on or about the 8th day of June, 1992, in Quezon City, Philippines, the
said accused, conspiring [and] confederating [with] and helping xxx two (2)
other persons, did then and there wilfully, unlawfully and feloniously with
intent to kill, with evident premeditation, treachery and use of superior strength,
attack, assault and employ personal violence upon the person of one
FREDERICK CAPULONG y DIZON, by then and there shooting him with the
use of a .22 cal. with trade mark Paspar Armas bearing SN-29069 with five (5)
pieces of caliber 22 ammo inside and a .32 cal. firearm of still undetermined
make, hitting him between his eyes and striking him with the use of a baseball
bat in the mouth, thereby inflicting upon him serious and mortal wounds which
were the direct and immediate cause of his untimely death, to the damage and
prejudice of the heirs of the said Frederick Capulong y Dizon.[3]

On their arraignment, Appellant Edwin De Vera[4] and Roderick Garcia[5] pleaded not guilty.
The other two accused were at large. Trial in due course proceeded only against De Vera and Garcia.
Thereafter, the trial court rendered the assailed Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE

VERA y GARCIA and RODERICK GARCIA y GALAMGAM guilty beyond
reasonable doubt of the crime of MURDER and they are hereby accordingly
sentenced to suffer reclusion perpetua, including all its accessory penalties; to
indemnify the heirs of Frederick Capulong y Dizon, as follows:

a) P50,000.00, as death indemnity;

b) P211,670.00, as compensatory damages;
c) P600,000.00, as indemnification for loss of earning capacity;
d) P500,000.00, as moral damages;
e) Interest at the legal rate on a) and b), hereof from the filing of the information until
full payment; and,
f) Costs of suit.[6]
Only Edwin De Vera filed a Notice of Appeal.[7]

The Facts

Version of the Prosecution

 In its Brief,[8] the Office of the Solicitor General presented the following narration of facts:[9]

As earlier stated, the prosecution presented an eyewitness in the person of

Bernardino Cacao, a resident of Denver Loop Street, Filinvest II, Quezon City
before he moved to No. 58 Elisa Street, Caloocan City. He was residing at
Filinvest II, together with his wife and children, at the time of the incident on
June 28, 1992 in the house owned by David Lim. He was then employed at a
Kodak branch in Caloocan City, while his wife served as secretary of the
homeowners association.

About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage,
the witness saw a car passing by, driven by victim Frederick Capulong together
with four (4) other passengers. He knew the victim by name who was a resident
of the subdivision. He recognized and identified two of the passengers as
Kenneth Florendo and Roderick Garcia, both familiar in the subdivision.

Cacao did not at first notice anything unusual inside the car while it passed by
him, but then he heard unintelligible voices coming from the car as it was
cruising around Denver Loop Street, a circular road whose entrance and exit
were through the same point (ibid, p. 12). His curiosity taking [the] better part
of him, Cacao walked to the opposite side of the road from where he saw the
car already parked. Moments later, he saw the victim dragged out of the car by
Florendo and brought to a grassy place. Florendo was holding a gun (ibid, p.
13). Upon reaching the grassy spot, Florendo aimed and fired the gun at the
victim, hitting him between the eyes. After the shooting, Florendo and his
companions fled in different directions.

When he submitted a sworn statement to the investigating prosecutor, Cacao

attached a sketch of the crime scene prepared by police officers, indicating
therein his relative position at the time of the incident. While testifying in court,
Cacao identified Garcia and pointed to appellant as among the companions of
Florendo.

Ten minutes later, or about 2:40 in the afternoon, the desk officer of the
Investigation Division, Station 5, Central Police District, Quezon City received
a report about the shooting incident from a security guard of the subdivision.
The officer immediately dispatched a team to Filinvest II, composed of PO2
Armando Garcia, PO3 Armando Junio, and PO3 Jovencio Villacorte, to
investigate and gather evidence (TSN, p. 5, September 13, 1993). A security
guard guided the team to the corner of Denver and Doa Justina Streets, site of
the shooting, where they discovered blood stains and damaged grass (ibid, p.
6). The guard informed them that the victim was rushed to the East Avenue
Medical Center by other security guards. The policemen then found a color red
sports car with plate no. NBZ 869, with engine still running and its doors
opened. They recovered inside the car several class cards and a license
belonging to one Ric Capulong, who was later identified as Frederick
Capulong.

The policemen went around the subdivision to look for possible suspects. They
came upon a person wearing muddied maong pants and white t-shirt standing
and walking around near the clubhouse of the subdivision. When asked his
name, the person identified himself as Edwin de Vera, herein appellant.
Explaining the mud stains on his pants, appellant declared that he was a victim
of a hold-up. Suspicious [of] his conduct, the policemen brought appellant to
Station 5 and turned him over to the desk officer for investigation.

Another prosecution witness, SPO3 Mario Guspid, a police investigator since

1989, was assigned to investigate the shooting of Frederick Capulong. He was
assisted by SPO4 Pablito Selvido, SPO2 Armando Rivera, SPO3 Jovencio
Villacorte, SPO3 Rolando Gacute, SPO3 Danilo Castro and other police
officers.

Upon receiving his assignment, SPO3 Guspid immediately went to the East
Avenue Medical Center where he saw the victim lying inside the intensive care
unit receiving medical treatment. The victim was unconscious. After conferring
with the victims parents and relatives, SPO3 Guspid returned to Station 5. On
his arrival, the desk officer referred appellant to him for questioning. He was
told that appellant was picked up near the crime scene acting suspiciously.
When appellant was asked about his participation in the shooting, he was
reluctant at first to talk, but later relented after SPO3 Guspid told him that his
conscience would bother him less if he would tell the truth.

Without any hesitation, appellant admitted being [with the] group which
perpetrated the crime, and implicated Roderick Garcia. He was then persuaded
to accompany a group of policemen to the residence of Garcia, which turned
out to be at Doa Justina Street, Filinvest II Subdivision. Finding Garcia at
home, SPO3 Guspid informed him that he was implicated by appellant [in] the
crime. He was then invited to the station to shed light [on] the incident. Garcia
consented.

At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of

the interview, Garcia revealed the place where he hid a .22 caliber gun, black t-
shirt and black cap. According to Garcia, Florendo asked them to wear black t-
shirts. With the revelation, SPO3 Guspid, SPO2 Rivera, SPO3 Gacute and
SPO3 Castro, together with the suspects, went back to the subdivision and
proceeded to a grassy portion near the boundary of Filinvest II and San Mateo,
Rizal. The place was near a creek and about 50 meters away from the residence
of Garcia (TSN, pp. 9-14, September 30, 1993). Truly, the policemen recovered
a .22 caliber revolver, black t-shirt and black cap (TSN, pp. 12-13, August 24,
1993). While there, SPO3 Guspid and SPO2 Rivera prepared a sketch of the
crime scene to reflect the explanations and answers given by appellant and
Garcia in response to their questions. As identifying marks, SPO3 Gacute
placed his initials OG (acronym for his first name and family name) between
the handle and cylinder of the gun, and on the neck of the t-shirt, as well as in
the inner lining of the black cap.

From the crime site, the policemen and the suspects returned to Station 5 where
SPO3 Guspid asked them if they were willing to give their written statements,
to which they assented. Consequently, they were brought to the Integrated Bar
of the Philippines, Quezon City Chapter, at Malakas Street, Diliman, Quezon
City. They were then introduced to Atty. Confesor Sansano, the [c]hairman of
the Free Legal Aid of the IBP. Also, present at that time were appellants
relatives, including his mother and sisters, and other lawyers of the IBP.

SPO3 Guspid inquired from them if they would agree to be assisted by Atty.
Sansano, a competent lawyer. They replied in the affirmative. Thereafter, the
two conferred with Atty. Sansano.

Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival
of the suspects [i]n his office, he requested the policemen, as a matter of policy,
to step outside the building in order to assure that no pressure would be exerted
on the suspects even by their mere presence (TSN, p. 6, November 6, 1996).
After they left, Atty. Sansano interviewed the suspects for about twenty
minutes, informing them of their rights under the constitution and inquiring
from them if they indeed wanted to give voluntary statements. To the query, the
suspects answered positively. They also affirmed their earlier declaration that
they were willing to be assisted by the IBP (ibid, pp. 8-9). He further advised
them of their right during the investigation to answer or not to answer the
questions which they thought would incriminate them, but they retorted that
they fully understood their right.

Satisfied that they were not coerced or threatened to give their statements, Atty.
Sansano requested the suspects to show their upper bodies to enable him to
determine any telltale signs of torture or bodily harm. Finding no such signs, he
then summoned the policemen to re-enter the building. The investigators
readied two typewriters and each suspect was assigned to an investigator. He
served as the lawyer of the suspects, cautioning them against answering
questions that they did not understand, and to seek xxx a clarification, if
needed.

According to Atty. Sansano, the interrogation took place in his office, a single
separate room from where his five staff members were visible. He sat between
the two tables used by the investigators for typing the questions and answers,
involving himself from beginning to end of the investigation until the signing
of the statements. He never left the office to attend to anything else, consistent
with [the] standing policy of the IBP to properly safeguard the rights of
suspects during investigation.

He recalled that the investigators first typed the headings of the statements,
then informed the suspects before starting the investigation about their rights
under the constitution, specifically, the right of the suspects to have a lawyer of
their own choice; if not, the police would provide them with one who would
assist them; that they could answer or refuse to answer the questions. The
investigators also asked him if he was willing to serve as counsel of the
suspects. They also asked the suspects if they were willing to accept him as
their counsel. They agreed expressly by saying: Oho.

SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant.

They conducted the question and answer investigation in Pilipino. The
statement of appellant was marked as Exhibit O and that of Garcia was marked
as Exhibit N. The statements were signed by the suspects and Atty. Sansano.

For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in
taking the statements of the suspects (TSN, p. 4, June 29, 1993). He took the
statement of appellant in the presence of Atty. Sansano. Before proceeding, he
reminded appellant of the constitutional warnings, consisting of four (4)
questions under the heading Paunawa, to which the latter gave positive
answers. The statement was signed by appellant and Atty. Sansano. After
taking down the statement, he turned over appellant to SPO3 Guspid.

Following the investigation, the policemen brought the suspects to the

Philippine National Police Crime Laboratory for paraffin testing. The result:
both hands of Edwin de Vera y Garcia @ Boy/Bong gave positive results [in]
the test for gunpowder nitrates while both hands of Roderick Garcia y
Galamgam @ Deo gave negative result [in] the test for gunpowder nitrates.

After coming from the crime laboratory, SPO3 Guspid contacted the mother of
the victim to get her own statement. Next, he obtained a death certificate and
prepared a referral to the Quezon City Prosecution Office which was signed by
Senior Inspector Ernesto Collado, Chief of the Station Investigation Division.
During the inquest, the prosecutor asked the suspects some clarificatory
questions.

Surveillance and follow-up operations were conducted against Florendo and his
other companion, Elmer Castro. However, the two were never arrested and
brought to trial.

Version of the Defense

Appellant claims that he had no part in the killing, and that it was Kenneth Florendo
who had shot the victim. He avers that he merely accompanied to Filinvest the other
accused and Florendo, who was his friend, upon the latters request. A few hours after the
shooting incident, appellant was picked up by the police, who subsequently tortured and
coerced him into signing his Statement regarding the incident. The trial court summarized
appellants evidence in this wise:[10]

Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo

were already close friends for about a year, sometimes sleeping in the latters
house at No 106 Kamias Road, Quezon City. His own residence at the time was
at No. 7 Bignay Street, Project 2, Quezon City. That was also the address of
Elmer Castro, his and Kenneths friend.

Edwin had slept in Kenneths house on Kamias Road from June 6 to June 8,
1992 and went home at 7:00 am of June 8 . Later at around 10:30 am, Kenneth
th

passed by Edwins house to invite him back to [the formers] house that morning
and to bring Elmer along. Kenneth mentioned that he, his girlfriend, and Deo,
who were then with him, would be going somewhere first. Deo, or Roderick
Garcia, was another friend of Kenneths.

Edwin and Elmer later went to and arrived at Kenneths house at 11:00 am.
Kenneth, his girlfriend, and Deo were already taking lunch, and invited the two
to lunch. After lunch, Kenneth asked Edwin to go with him to Filinvest without
telling why. It was Deo who mentioned to Edwin that Kenneth was going to see
a friend. Edwin was not aware if Kenneth had also asked the others to go with
him to Filinvest, but the four of them Kenneth, Edwin, Elmer, and Deo later
proceeded to Filinvest [i]n Kenneths car. Edwin sat at the back seat. The time
was past 12:00 noon.
Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house
and the four of them alighted in front of the house. Edwin did not know whose
house it was. Kenneth and Elmer told Edwin and Deo to wait near the car
because they were going to see a friend. At that point in time, Edwin knew the
person[,] whom Kenneth and Elmer went to see[,] by name, never having met
him personally before then. From his conversation with Deo, Edwin found out
that the house was where Deo stayed.

Then, Edwin heard the voices of Kenneth and his friend and they appeared to
be arguing (x x x x parang nagtatalo sila). The voices came from some twenty-
two (22) meters away. Not before long, Edwin also heard a gunshot which
came from where Kenneth and Elmer had gone to. He was shocked because he
was not used to hearing gunfire. Frightened, he panicked and ran away from the
place. His singular thought while running was to get out of Filinvest. Deo also
ran away.

Edwin denied that either he or Deo carried any firearm on that occasion.

Edwin was arrested by the police at past 2:00 pm when he was already outside
of Filinvest subdivision in front of Batasan. He was brought to Station 5 where
four (4) persons in civilian attire tortured him by forcing him to lie down on a
bench, tying his feet together and binding his hands from his back with
handcuffs, and then covering his face with a piece of dirty cloth into which
water was poured little by little into his face and mouth, while one of them sat
on his thighs. This maltreatment lasted for about 20 or 25 minutes, because
they wanted him to admit something and to name my companions but he
refused to admit or to name anyone. They next took him outside to a mango
tree where they repeated his ordeal for 30 minutes. At one point during the
torture, a policeman untied his feet and hands and poked a gun to his temple,
telling him to run as it was his chance to escape, but he did not escape because
he could see that they were merely frightening him.

None of the policemen told him that he could xxx get a lawyer[;] instead, one
of them, whose name he [did] not know, told him that I should listen only to
them and not to anyone else. He claimed that he saw one [of] his tormentors in
court, and he identified him as police officer Rivera. Guspid did not participate
in his torture, because he merely took down his statement. His tormentors were
not drunk or under the influence of drugs, but Guspid seemed to be under the
influence of drugs when he took his statement because of his troubled
appearance.
Edwin was not advised to inform or call any of his relatives. Before his torture,
his request to contact his relatives or lawyer was turned down. His intimidation
continued (x x x x puro pananakot and ginawa nila sa akin). After his torture at
the mango tree, he was returned inside and thrown into a cell, where he
remained until the following day (June 9 ). During the night, an inmate named
th

Cesar boxed him once in the upper body upon instruction of a policeman. He
was not given any dinner.

At around noontime of the next day (June 9 ), Edwin was taken out of the cell
th

and brought to the IBP office by police officers Guspid and Selvido. Also with
them were Deo Garcia and two other police officers. At the IBP office, the
officers talked with one of the lawyers there, whom Edwin came to know to be
Atty. Sansano only after the lawyer was introduced (present) to him and Deo.
That was the first he met and saw Atty. Sansano.

Atty. Sansano informed both Edwin and Deo that they had the choice whether
to talk or not. Edwin could not make any comment because wala po ako sa
sarili ko. Then, Atty. Sansano warned Edwin substantially that: Alam nyo ba na
ang salaysay na ito ay maaring hindi ninyo sumpaan, referring to the statement
taken from Edwin by officers Guspid at around past 8 pm until 9 pm on the day
before (June 8, 1992) at the police station. He was not assisted by counsel, and
had no relatives present. Guspid appeared to be like drunk or tipsy, when he
took down Edwins statement that night.

At the IBP office, Edwins and Deos statement were taken separately by Guspid
and Selvido, respectively. At the time, Edwin and Deo were about six (6)
meters from each other, but he could hear what was being asked of Deo.
Guspid asked the questions and typed both the questions and his answers,
which were given in Tagalog. All the while, Atty. Sansano was inside his
office, which was about seven (7) meters away from where he and Guspid were
situated. The office of Atty. Sansano was separated by a divider, so that he
could not see what Atty. Sansano was doing at the time. After the questioning,
he signed a paper which he was not able to read. He did not see Atty. Sansano
sign the paper.

xxxxxxxxx

On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng

sinumpaang salaysay, which he swore to before Prosecutor Tobia of Quezon
City, for the purpose of recanting his statements given at the precinct in the
evening of June 8, 1992 and at the IBP office on June 9, 1992 on the ground
that they were given under coercion, intimidation, and in violation of his
constitutional rights.

Ruling of the Trial Court

Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it
was indeed Kenneth Florendo who had actually shot the victim, Roderick Capulong. It
convicted appellant as a principal, however, because the scientific and forensic findings
on the criminal incident directly and substantially confirmed the existence of conspiracy
among the four [accused], namely, Kenneth Florendo, Elmer Castro, Edwin de Vera, and
Roderick Garcia.[11]

The Issues

Appellant submits for the consideration of this Court the following alleged errors:
I

THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION

EYE-WITNESS BERNARDO CACAO HAD TESTIFIED TO NO
CRIMINAL ACT OF APPELLANT;
II

THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT

THERE WAS A CONSPIRACY TO KILL THE VICTIM AND THAT
APPELLANT WAS A CO- CONSPIRATOR;
III

THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT O, ALLEGED

STATEMENT OF APPELLANT; AND IN NOT DECLARING THE SAME
AS AN INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC
MANNER UNDER WHICH IT WAS EXTRACTED/OBTAINED FROM
THE APPELLANT WHICH VIOLATED THE LATTERS
CONSTITUTIONAL RIGHTS;
IV

THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT

THE PROSECUTION HAS NOT PROVED THE APPELLANT’S GUILT
BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING THE
APPELLANT.[12]

In the main, the Court will resolve three questions: (1) the sufficiency of the
prosecution evidence, (2) the admissibility of appellants extrajudicial statement, and (3)
the nature of his liability.

The Courts Ruling

The appeal is partly meritorious. Appellant should be convicted only as an

accomplice, not as a principal.

First and Third Issues:

Sufficiency of Prosecution Evidence and Appellants Liability

Because the first and the third questions mentioned above are interrelated, they shall
be discussed jointly.

Eyewitness Account

In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant
De Vera, the trial court relied mainly on the testimony of Eyewitness Cacao. Specifically,
it based its conclusions on the following facts: appellant was seen with the other accused
inside the victims car; the victim was clearly struck with a blunt object while inside the
car, and it was unlikely for Florendo to have done it all by himself; moreover, it was
impossible for De Vera and Garcia to have been unaware of Florendos dark design on
Roderick.
We disagree. It is axiomatic that the prosecution must establish conspiracy beyond
reasonable doubt.[13] In the present case, the bare testimony of Cacao fails to do so.
Cacao testified that he saw Appellant De Vera in the car, where an altercation later
occurred. Thereafter, he saw Florendo drag out of the vehicle an apparently disabled
Capulong and shoot the victim in the head moments later.
Cacaos testimony contains nothing that could inculpate appellant. Aside from the
fact that he was inside the car, no other act was imputed to him. Mere presence does not
amount to conspiracy.[14] Indeed, the trial court based its finding of conspiracy on mere presumptions,
and not on solid facts indubitably indicating a common design to commit murder. Such suppositions do not
constitute proof beyond reasonable doubt. As the Court has repeatedly stated, criminal conspiracy must be
founded on facts, not on mere surmises or conjectures. Clearly, Cacaos testimony does not establish
appellants culpability.
 Appellants Extrajudicial Statement

Aside from the testimony of Cacao, the prosecution also presented Appellant De
Veras extrajudicial statement, which established three points.
First, appellant knew of Kenneth Florendos malevolent intention.
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag
kang maging kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan
na lamang at napilitan akong sumama.[15]
Second, appellants companions were armed that day, a fact which revealed the
unmistakable plan of the group.
T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?
S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,]
sina Deo at Elmer ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth
ang isang baril niya kay Deo at itong si Elmer ay mayroong nang dalang baseball bat.
Third, he cooperated with the other accused in the commission of the crime by
placing himself at a certain distance from Kenneth and the victim in order to act as a
lookout. This is clear from the following portion of his statement:
S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw
ng June 08, 1992 ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil
[mayroon] daw po kaming lakad. Pagkaraan ng ilang oras ay dumating naman itong si
Roderick Garcia @ Deo at may sinabi sa kanya itong si Kenneth at sinabi naman ito sa
akin ni Deo na kaysa raw maunahan siya ni Frederick Sumulong [sic] ay uunahan na raw
po niya ito. Umalis po itong si Kenneth na kasama ang kanyang nobya at itong si Deo,
para ihatid ang kanyang [sic] sa hospital at bago sila umalis ay sinabihan ako ni Kenneth
na sunduin ko raw itong si Elmer Castro at magbhihai [magbihis] na rin daw ako at
pagdating nila ay xxx lalakad na raw po kami. Mga ilang oras pa ay sinundo ko na itong
si Elmer Castro at pagdating namin sa bahay nila Kenneth ay naroroon na itong si
Kenneth at Deo. Matapos magpalit ng damit itong si Kenneth ay sumakay na kami sa
kanilang kotse at nagtuloy sa kanilang katabing bahay at doon ay kumain kami.
Pagkatapos noon ay umalis na kami at nagtuloy sa F[i]l-Invest. P[a]gdating namin sa
isang lugar doon sa medyo malayo-layo sa bahay nila Deo ay bumaba na itong si Deo at
Elmer at sila ay nagpunta doon sa lugar ng pinagbarilan para kunin ang bayad sa utang ni
Fred[er]ick Capulong sa tiyuhin ni Deo. P[a]gkaraan ng ilang minuto ay sumunod po
kami ni Kenn[e]th sa lugar at ako ay naiwan nang medyo malayo-layo sa lugar upang
tignan kung mayroong darating na tao. Samantalang si Kenneth ay lumapit kina Deo at
Frederick at kasunod noon ay nagkaroon ng sagutan itong si Kenneth at Frederick at
nakita kong inaawat ni Deo itong si Kenneth. Hindi nakapagpigil itong si Kenneth at
nasipa niya s[i] Frederick at kasunod noon ay binunot niya ang kanyang baril na kalibre
.38 at pinaputukan niya ng isang beses itong si Frederick na noong tamaan ay natumba sa
lupa. Lumapit si Elmer kina Kenneth habang binabatak ni Kenneth itong si Frederick at
kasunod po noon ay lumapit sa akin si Deo at sinabihan ako na tumakbo na kami.
Tumakbo na po kami, pero ako po ay nahuli ng mga security guard ng Subdivision at
itong si Deo ay nahuli naman sa kanilang bahay. Itong sina Kenneth at Elmer ay hindi pa
nahuhuli.[16]
 Appellant an Accomplice, Not a Conspirator

In other words, appellants presence was not innocuous. Knowing that Florendo
intended to kill the victim and that the three co-accused were carrying weapons, he had
acted as a lookout to watch for passersby. He was not an innocent spectator; he was at
the locus criminis in order to aid and abet the commission of the crime. These facts,
however, did not make him a conspirator; at most, he was only an accomplice.
The Revised Penal Code provides that a conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit
it.[17] To prove conspiracy, the prosecution must establish the following three requisites:
(1) that two or more persons came to an agreement, (2) that the agreement concerned the
commission of a crime, and (3) that the execution of the felony [was] decided
upon.[18] Except in the case of the mastermind of a crime, it must also be shown that the
accused performed an overt act in furtherance of the conspiracy.[19] The Court has held
that in most instances, direct proof of a previous agreement need not be established, for
conspiracy may be deduced from the acts of the accused pointing to a joint purpose,
concerted action and community of interest.[20]
On the other hand, the Revised Penal Code defines accomplices as those persons
who, not being included in Article 17,[21] cooperate in the execution of the offense by
previous or simultaneous acts.[22] The Court has held that an accomplice is one who
knows the criminal design of the principal and cooperates knowingly or intentionally
therewith by an act which, even if not rendered, the crime would be committed just the
same.[23] To hold a person liable as an accomplice, two elements must be present: (1) the
community of criminal design; that is, knowing the criminal design of the principal by
direct participation, he concurs with the latter in his purpose; and (2) the performance of
previous or simultaneous acts that are not indispensable to the commission of the
crime.[24]
The distinction between the two concepts needs to be underscored, in view of its
effect on appellants penalty. Once conspiracy is proven, the liability is collective and not
individual. The act of one of them is deemed the act of all.[25] In the case of an
accomplice, the liability is one degree lower than that of a principal.
Conspirators and accomplices have one thing in common: they know and agree with
the criminal design. Conspirators, however, know the criminal intention because they
themselves have decided upon such course of action. Accomplices come to know about it
after the principals have reached the decision, and only then do they agree to cooperate in
its execution. Conspirators decide that a crime should be committed; accomplices merely
concur in it. Accomplices do not decide whether the crime should be committed; they
merely assent to the plan and cooperate in its accomplishment. Conspirators are the
authors of a crime; accomplices are merely their instruments who perform acts not
essential to the perpetration of the offense.
Thus, in People v. Castro,[26] the Court convicted Rufino Cinco, together with two
others, as a principal, although he had acted merely as a lookout. The Court held that
their concerted action in going armed and together to their victims house, and there, while
one stayed as a lookout, the other two entered and shot the mayor and his wife, leaving
again together afterwards, admits no other rational explanation but conspiracy. It may be
noted further that Cinco executed a Sworn Statement that the three of them, together with
some others, had planned to kill the victim on the promise of a P5,000 reward.
In People v. Tawat et al.,[27] the lookout, Nestor Rojo, was convicted as a principal
for conspiring with two others. The Court ruled that the conspiracy was shown by their
conduct before, during and after the commission of the crime. The Court also noted that,
upon their arrest, they disclosed that they had intended to rob the victims store and that
they did so in accordance with their plan. In that case, it was clear that all three of them,
including the lookout, were the authors of the crime.
In People v. Loreno,[28] the Supreme Court convicted all the accused as principals
because they had acted in band. In acting as a lookout, Jimmy Marantal was armed at the
time like the other conspirators, and he gave his companions effective means and
encouragement to commit the crime of robbery and rape.
Upon the other hand, in People v. Corbes,[29] the Court noted that Manuel Vergel
knew of the criminal design to commit a robbery, and that he cooperated with the robbers
by driving the vehicle to and from the crime scene. In convicting him as an accomplice
and not as a conspirator, the Court observed that he was merely approached by one of the
robbers who was tasked to look for a getaway vehicle. He was not with the robbers when
they resolved to commit a robbery. When his services were requested, the decision to
commit the crime had already been made.
In People v. Tatlonghari,[30] the Court was asked to resolve the responsibility of some
appellants who knowingly aid[ed] the actual killers by casting stones at the victim, and
distracting his attention. The Court ruled that they were accomplices and not co-
conspirators, [i]n the absence of clear proof that the killing was in fact envisaged by
them.
In People v. Suarez et al.,[31] Wilfredo Lara merely introduced the gang of Reyes to
Suarez who intended to perpetrate the crime with the help of the said group. In ruling that
he was merely an accomplice, the Court noted that there was no evidence showing that he
took part in the planning or execution of the crime, or any proof indicating that he
profited from the fruits of the crime, or of acts indicative of confederacy on his part.
In People v. Balili,[32] the Court convicted appellant as an accomplice, holding that in
going with them, knowing their criminal intention, and in staying outside of the house
with them while the others went inside the store to rob and kill, [he] effectively supplied
the criminals with material and moral aid, making him guilty as an accompliance. The
Court noted that there was no evidence that he had conspired with the malefactors, nor
that he actually participated in the commission of the crime.
In People v. Doble,[33] the Court held that Cresencio Doble did not become a
conspirator when he looked for a banca that was eventually used by the robbers. Ruled
the Court: Neither would it appear that Joe Intsik wanted to draft Crescencio into his
band of malefactors that would commit the robbery more than just asking his help to look
for a banca. Joe Intsik had enough men, all with arms and weapons to perpetrate the
crime, the commission of which needed planning and men to execute the plan with full
mutual confidence of each other, which [was] not shown with respect to appellants by the
way they were asked to look and provide for a banca just a few hours before the actual
robbery.
In the present case, Appellant De Vera knew that Kenneth Florendo had intended to
kill Capulong at the time, and he cooperated with the latter. But he himself did not
participate in the decision to kill Capulong; that decision was made by Florendo and the
others. He joined them that afternoon after the decision to kill had already been agreed
upon; he was there because nagkahiyaan na. This is clear from his statement, which we
quote again for the sake of clarity:
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag
kang maging kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan
na lamang at napilitan akong sumama.[34]
Significantly, the plan to kill could have been accomplished without him. It should
be noted further that he alone was unarmed that afternoon. Florendo and Garcia had guns,
and Castro had a baseball bat.
In any event, the prosecution evidence has not established that appellant was part of
the conspiracy to kill the victim. His participation, as culled from his own Statement, was
made, after the decision to kill was already a fait accompli. Thus, in several cases, the
Court has held:

[L]ack of complete evidence of conspiracy, that creates the doubt whether they
had acted as principals or accomplices in the perpetration of the offense, impels
this Court to resolve in their favor the question, by holding x x x that they were
guilty of the milder form of responsibility, i.e., guilty as mere accomplices.[35]

Second Issue:

Admissibility of Extrajudicial Statement

Extrajudicial confessions must conform to constitutional requirements. Section 12,

Article III of the Constitution, 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.

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

If the confession meets these requirements, it is subsequently tested for

voluntariness, i.e., if it was given freely -- without coercion, intimidation, inducement, or
false promises; and credibility, i.e., if it was consistent with the normal experience of
mankind. [36]
Appellant claims that his extrajudicial statement was inadmissible, because it was
not made in the presence of counsel. Although Atty. Confesor Sansano of the Quezon
City IBP Legal Aid Committee purportedly assisted him and his co-accused in the
execution of their extrajudicial Statements, appellant asserts that the lawyer was in his
office, not with them, at the time. Appellant adds that he was tortured.
Appellants claims must be rejected. Atty. Sansano testified that he did not leave them
at any time.
Q: You were involved in the interrogation from the very start?
A: Yes, from the beginning to the end of the interview until the boys signed their statements.
Q: Did you recall having at any time left your office to attend to some official matters?
A: I never left the office to attend to anything.
Q: Is that the usual manner by which you assist persons referred to you by the police insofar as
custodial investigation is concerned?
A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of
the accused or suspects are properly [protected] during the course of the entire
interrogation.[37]
In fact, Atty. Sansano even checked to see if there were torture marks on Appellant
De Vera, and Garcia and interviewed the two to make sure that they understood what
they were doing.
Q: What was your purpose in asking the police officers to leave the room?
A: My purpose in asking the police officers to step out of the building was to assure myself
that no pressure could be exerted on the two boys by the presence of the police officers
during my personal interview. Before we allow any police officers to take the statements
of people brought before us[,] we see to it [that] we interview the persons personally out
of hearing and sight of any police officer.
Q: After the police officers left the room, completely left the room[,] you were able to
interview the two accused namely Mr. de Vera and Mr. Garcia?
A: Yes, I spent about 15 to 20 minutes interviewing the boys.
Q: What was the nature of your initial interview with these two accused?
A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their
own statements to the police?
Q: And what did they say?
 A: They said yes, sir.
Q: What was your reaction to that?
A: Routinely[,] I informed them about their rights under the constitution.
xxxxxxxxx
Q: Having obtained their answers, what next transpired?
A: After telling them the statements they may give to the police could be used against them for
a [sic] in any court of the Phil., I was satisfied that nobody coerced them, that they were
never threatened by anybody much less by the police officers to give these statements.
Casually I asked the two boys to raise their upper clothes.
xxxxxxxxx
Q: What was your purpose in requiring these persons to show you or remove their upper
clothing?
A: I wanted to assure myself that there were no telltale signs of torture or bodily harm
committed on the[m] prior to their [being brought] to the office. In spite of their
[personal] assurances xxx, verbal assurance that they were never hurt.[38]
The right to counsel is enshrined in the Constitution in order to address, among
others, the use of duress and undue influence in the execution of extrajudicial
confessions.[39] In the present case, the Court is satisfied that Atty. Sansano sufficiently
fulfilled the objective of this constitutional mandate. Moreover, appellants allegations of
torture must be disregarded for being unsubstantiated. To hold otherwise is to facilitate
the retraction of solemnly made statements at the mere allegation of torture, without any
proof whatsoever.
When an extrajudicial statement satisfies the requirements of the Constitution, it
constitutes evidence of a high order, because of the strong presumption that no person of
normal mind would deliberately and knowingly confess to a crime unless prompted by
truth and conscience.[40] The defense has the burden of proving that it was extracted by
means of force, duress or promise of reward.[41] Appellant failed to overcome the
overwhelming prosecution evidence to the contrary.
Section 3, Rule 133 of the Rules of Court, provides that [a]n extrajudicial confession
made by an accused shall not be sufficient ground for conviction, unless corroborated by
evidence of corpus delicti. In the present case, the prosecution presented other evidence
to prove the two elements of corpus delicti: (a) a certain result has been proven for
example, a man has died; and (b) some person is criminally responsible.[42] It is
indubitable that a crime has been committed, and that the other pieces of prosecution
evidence clearly show that appellant had conspired with the other accused to commit the
crime. He himself does not deny that he was at the crime scene. In fact, he was seen by
the prosecution eyewitness in the company of the gunman. Furthermore, Atty. Sansano
and the police officers testified to the voluntariness of his confession. It must be stressed
that the aforementioned rule merely requires that there should be some other
evidence tending to show the commission of the crime apart from the confession. [43]
 Criminal and Civil Liability

In ruling that the crime committed was murder, the trial court found that the killing
was attended by treachery, evident premeditation and abuse of superior strength. One of
these was enough to qualify the crime as murder; the two others constituted generic
aggravating circumstances. The lower court explained that the evidence established
evident premeditation, for Florendos group acted with deliberate forethought and
tenacious persistence in the accomplishment of the criminal design. Treachery was also
proven, because the attack was planned and performed in such a way as to guarantee the
execution of the criminal design without risk to the group. There was also abuse of
superior strength, because the attackers took advantage of their superiority in numbers
and weapons.
We disagree with the court a quo in appreciating two generic aggravating
circumstances, because treachery absorbs abuse of superior strength.[44] Hence, there is
only one generic aggravating circumstance, not two. Notwithstanding the presence of a
generic aggravating circumstance, we cannot impose the death penalty, because the crime
was committed before the effectivity of the Death Penalty Law.
In the present case, the penalty of appellant as an accomplice is one degree lower
than that of a principal, which in murder cases is reclusion temporal in its maximum
period to death. He is also entitled to the benefits of the Indeterminate Sentence Law.
We sustain the trial courts grant of P50,000 as indemnity ex delicto, which may be
awarded without need of proof other than the commission of the crime. The award of
P211,670 as compensatory damages was duly supported by evidence. Based on the
evidence presented, moral damages is also warranted, but only in the amount of P50,000,
not P500,000 as fixed by the trial court. Furthermore, we affirm the payment of
interest.[45] However, the grant of P600,000 for loss of earning capacity lacks factual
basis. Such indemnification partakes of the nature of actual damages, which must be duly
proven.[46] In this case, the trial court merely presumed the amount of Capulongs earnings.
Since the prosecution did not present evidence of the current income of the deceased, the
indemnity for lost earnings must be rejected.
WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera
is CONVICTED as an accomplice, not as a principal, in the crime of murder. He is
sentenced to an indeterminate prison term of 8 years and 1 day of prision mayor as
minimum, to 14 years 8 months and 1 day of reclusion temporal as maximum.
We AFFIRM the awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as
compensatory damages and (c) interest of six percent per annum on these two amounts.
The award of moral damages is however REDUCED to P50,000 and the award for the
loss of earning capacity is DELETED. No pronouncement as to costs.
SO ORDERED.

G.R. No. 202867 July 15, 2013

PEOPLE OF THE PHILIPPINES, Appellee,
vs.
REGIE LABIAGA, Appellant.

DECISION

CARPIO, J.:

The Case

Before the Court is an appeal assailing the Decision1 dated 18 October 2011 of the Court of
Appeals-Cebu (CA-Cebu) in CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed with
modification the Joint Decision2 dated 10 March 2008 of the Regional Trial Court of Barotac
Viejo, Iloilo, Branch 66 (RTC), in Criminal Case No. 2001-155) convicting Regie Labiaga
alias "Banok" (appellant) of murder and Criminal Case No. 2002-1777 convicting appellant of
frustrated murder.

The Facts

In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas
and Cristy Demapanag (Demapanag), was charged with Murder with the Use of Unlicensed
Firearm under an Information3 which reads:

That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, armed with unlicensed firearm, with
deliberate intent and decided purpose to kill, by means of treachery and with evident
premeditation, did then and there willfully, unlawfully and feloniously attack, assault and
shoot JUDY CONDE alias ‘JOJO’ with said unlicensed firearm, hitting her and inflicting
gunshot wounds on the different parts of her breast which caused her death thereafter.

CONTRARY TO LAW.

The same individuals were charged with Frustrated Murder with the Use of Unlicensed
Firearm in Criminal Case No. 2002-1777, under an Information4 which states:

That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, armed with unlicensed firearm, with
deliberate intent and decided purpose to kill, by means of treachery and with evident
premeditation, did then and there willfully, unlawfully and feloniously attack, assault and
shoot Gregorio Conde with said unlicensed firearm, hitting him on the posterior aspect,
middle third right forearm 1 cm. In diameter; thereby performing all the acts of execution
which would produce the crime of Murder as a consequence, but nevertheless did not
produce it by reason of causes independent of the will of the accused; that is by the timely
and able medical assistance rendered to said Gregorio Conde which prevented his death.

CONTRARY TO LAW.

Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not guilty in
both cases and joint trial ensued thereafter. The prosecution presented four witnesses:
Gregorio Conde, the victim in Criminal Case No. 2002-1777; Glenelyn Conde, his daughter;
and Dr. Jeremiah Obañana and Dr. Edwin Jose Figura, the physicians at the Sara District
Hospital where the victims were admitted. The defense, on the other hand, presented
appellant, Demapanag, and the latter’s brother, Frederick.

Version of the prosecution

The prosecution’s version of the facts is as follows: At around 7:00 p.m. on 23 December
2000, Gregorio Conde, and his two daughters, Judy and Glenelyn Conde, were in their home
at Barangay Malayu-an, Ajuy, Iloilo. Thereafter, Gregorio stepped outside. Glenelyn was in
their store, which was part of their house.

Shortly thereafter, appellant, who was approximately five meters away from Gregorio, shot
the latter. Gregorio called Judy for help. When Judy and Glenelyn rushed to Gregorio’s aid,
appellant shot Judy in the abdomen. The two other accused were standing behind the
appellant. Appellant said, "she is already dead," and the three fled the crime scene.

Gregorio and Judy were rushed to the Sara District Hospital. Judy was pronounced dead on
arrival while Gregorio made a full recovery after treatment of his gunshot wound.

Dr. Jeremiah Obañana conducted the autopsy of Judy. His report stated that her death was
caused by "cardiopulmonary arrest secondary to Cardiac Tamponade due to gunshot
wound."5

Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the incident. He found
that Gregorio sustained a gunshot wound measuring one centimeter in diameter in his right
forearm and "abrasion wounds hematoma formation" in his right shoulder.6

Version of the defense

Appellant admitted that he was present during the shooting incident on 23 December 2000.
He claimed, however, that he acted in self-defense. Gregorio, armed with a shotgun,
challenged him to a fight. He attempted to shoot appellant, but the shotgun jammed.
Appellant tried to wrest the shotgun from Gregorio, and during the struggle, the shotgun
fired. He claimed that he did not know if anyone was hit by that gunshot.

Demapanag claimed that at the time of the shooting, he was in D&D Ricemill, which is
approximately 14 kilometers away from the crime scene. This was corroborated by
Frederick, Demapanag’s brother.

The Ruling of the RTC

In its Joint Decision, the RTC acquitted Demapanag due to insufficiency of evidence.
Appellant, however, was convicted of murder and frustrated murder. The dispositive portion
of the Joint Decision reads:

WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @
"Banok" GUILTY beyond reasonable doubt of the Crime of Murder in Crim. Case No. 2001-
1555 and hereby sentences the said accused to reclusion perpetua together with accessory
penalty provided by law, to pay the heirs of Judy Conde ₱50,000.00 as civil indemnity,
without subsidiary imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok" GUILTY
beyond reasonable doubt of the crime of Frustrated Murder and hereby sentences the said
accused to a prison term ranging from six (6) years and one (1) day of prision mayor as
minimum to ten (10) years and one (1) day of reclusion temporal as maximum, together with
the necessary penalty provided by law and without subsidiary imprisonment in case of
insolvency and to pay the costs.

Accused’s entire period of detention shall be deducted from the penalty herein imposed
when the accused serves his sentence.

For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes
charged in both cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is
hereby directed to release accused Cristy Demapanag from custody unless he is being held
for some other valid or lawful cause.

SO ORDERED.7

The Ruling of the CA-Cebu

Appellant impugned the RTC’s Joint Decision, claiming that "the RTC gravely erred in
convicting the appellant of the crime charged despite failure of the prosecution to prove his
guilt beyond reasonable doubt."8 The CA-Cebu, however, upheld the conviction for murder
and frustrated murder.

The CA-Cebu also modified the Joint Decision by imposing the payment of moral and
exemplary damages in both criminal cases. The CA-Cebu made a distinction between the
civil indemnity awarded by the RTC in Criminal Case No. 2001-1555 and the moral
damages. The CA-Cebu pointed out that:

The trial court granted the amount of ₱50,000.00 as civil indemnity in Criminal Case No.
2001-1555. It did not award moral damages. Nonetheless, the trial court should have
awarded both, considering that they are two different kinds of damages. For death indemnity,
the amount of ₱50,000.00 is fixed "pursuant to the current judicial policy on the matter,
without need of any evidence or proof of damages. Likewise, the mental anguish of the
surviving family should be assuaged by the award of appropriate and reasonable moral
damages."9

The dispositive portion of the Decision of the CA-Cebu reads:

WHEREFORE, premises considered, the appeal is DENIED. The Joint Decision dated
March 10, 2008 of the Regional Trial Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED
with MODIFICATIONS. The dispositive portion of the said Joint Decision should now read as
follows:

WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @
"Banok" GUILTY beyond reasonable doubt of the crime of Murder in Crim. Case No. 2001-
1555 and hereby sentences the said accused to reclusion perpetua together with the
accessory penalty provided by law, to pay the heirs of Judy Conde ₱50,000.00 as civil
indemnity, ₱50,000.00 as moral damages and ₱25,000.00 as exemplary damages, without
subsidiary imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @ "Banok" GUILTY
beyond reasonable doubt of the crime of Frustrated Murder and hereby sentences the said
accused to suffer the indeterminate penalty of eight (8) years and one (1) day of prision
mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as
maximum, together with the accessory penalty provided by law, to pay Gregorio Conde
₱25,000.00 as moral damages and ₱25,000.00 as exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs Accused(’s) entire period of
detention shall be deducted from the penalty herein imposed when the accused serves his
sentence.

For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s)
charged in both cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is
hereby directed to release accused Cristy Demapanag from custody unless he is being held
for some other valid or lawful cause.

SO ORDERED.

SO ORDERED.10

Hence, this appeal.

The Ruling of the Court

Our review of the records of Criminal Case No. 2002-1777 convinces us that appellant is
guilty of attempted murder and not frustrated murder. We uphold appellant’s conviction in
Criminal Case No. 2001-1555 for murder, but modify the civil indemnity awarded in Criminal
Case No. 2001-1555, as well as the award of moral and exemplary damages in both cases.

Justifying circumstance of self-defense

Appellant’s feeble attempt to invoke self-defense in both cases was correctly rejected by the
RTC and the CA-Cebu. This Court, in People v. Damitan,11 explained that:

When the accused admits killing a person but pleads self-defense, the burden of evidence
shifts to him to prove by clear and convincing evidence the elements of his defense.
However, appellant’s version of the incident was uncorroborated. His bare and self-serving
assertions cannot prevail over the positive identification of the two (2) principal witnesses of
the prosecution.

Appellant’s failure to present any other eyewitness to corroborate his testimony and his
unconvincing demonstration of the struggle between him and Gregorio before the RTC lead
us to reject his claim of self-defense. Also, as correctly pointed out by the CA-Cebu,
appellant’s theory of self-defense is belied by the fact that:

x x x The appellant did not even bother to report to the police Gregorio’s alleged unlawful
aggression and that it was Gregorio who owned the gun, as appellant claimed. And, when
appellant was arrested the following morning, he did not also inform the police that what
happened to Gregorio was merely accidental.13

Appellant’s claim that he did not know whether Gregorio was hit when the shotgun
accidentally fired is also implausible.
In contrast, we find that the Condes’ account of the incident is persuasive. Both the CA-Cebu
and the RTC found that the testimonies of the Condes were credible and presented in a clear
and convincing manner. This Court has consistently put much weight on the trial court’s
assessment of the credibility of witnesses, especially when affirmed by the appellate
court.14 In People v. Mangune,15 we stated that:

It is well settled that the evaluation of the credibility of witnesses and their testimonies is a
matter best undertaken by the trial court because of its unique opportunity to observe the
witnesses first hand and to note their demeanor, conduct, and attitude under grilling
examination. These are important in determining the truthfulness of witnesses and in
unearthing the truth, especially in the face of conflicting testimonies. For, indeed, the
emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness’
credibility, and the trial court has the opportunity to take advantage of these aids.16

Since the conclusions made by the RTC regarding the credibility of the witnesses were not
tainted with arbitrariness or oversight or misapprehension of relevant facts, the same must
be sustained by this Court.

Attempted and Frustrated Murder

Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack is one
in which the victim was not afforded any opportunity to defend himself or resist the
attack.17 The existence of treachery is not solely determined by the type of weapon used. If it
appears that the weapon was deliberately chosen to insure the execution of the crime, and to
render the victim defenseless, then treachery may be properly appreciated against the
accused.18

In the instant case, the Condes were unarmed when they were shot by appellant. The use of
a 12-gauge shotgun against two unarmed victims is undoubtedly treacherous, as it denies
the victims the chance to fend off the offender.

We note, however, that appellant should be convicted of attempted murder, and not
frustrated murder in Criminal Case No. 2002-1777.

Article 6 of the Revised Penal Code defines the stages in the commission of felonies:

Art. 6. Consummated, frustrated, and attempted felonies.— Consummated felonies as well

as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance.

In Serrano v. People,19 we distinguished a frustrated felony from an attempted felony in this

manner:
 1.) In a frustrated felony, the offender has performed all the acts of execution which
should produce the felony as a consequence; whereas in an attempted felony, the
offender merely commences the commission of a felony directly by overt acts and
does not perform all the acts of execution.

2.) In a frustrated felony, the reason for the non-accomplishment of the crime is some
cause independent of the will of the perpetrator; on the other hand, in an attempted
felony, the reason for the non-fulfillment of the crime is a cause or accident other
than the offender’s own spontaneous desistance.20

In frustrated murder, there must be evidence showing that the wound would have been fatal
were it not for timely medical intervention.21 If the evidence fails to convince the court that the
wound sustained would have caused the victim’s death without timely medical attention, the
accused should be convicted of attempted murder and not frustrated murder.

In the instant case, it does not appear that the wound sustained by Gregorio Conde was
mortal. This was admitted by Dr. Edwin Figura, who examined Gregorio after the shooting
incident:

Prosecutor Con-El:

Q: When you examined the person of Gregorio Conde, can you tell the court what was the
situation of the patient when you examined him?

A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.

xxxx

Court (to the witness)

Q: The nature of these injuries, not serious?

A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the
anterior aspect right shoulder.22

Since Gregorio’s gunshot wound was not mortal, we hold that appellant should be convicted
of attempted murder and not frustrated murder. Under Article 51 of the Revised Penal Code,
the corresponding penalty for attempted murder shall be two degrees lower than that
prescribed for consummated murder under Article 248, that is, prision correccional in its
maximum period to prision mayor in its medium period. Section 1 of the Indeterminate
Sentence Law provides:

x x x the court shall sentence the accused to an indeterminate sentence the maximum term
of which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the Revised Penal Code, and the minimum which shall be within
the range of the penalty next lower to that prescribed by the Code for the offense. 1âwphi1

Thus, appellant should serve an indeterminate sentence ranging from two (2) years, four (4)
months and one (1) day of prision correccional in its medium period to eight (8) years and
one (1) day of prision mayor in its medium period.
Award of damages

In light of recent jurisprudence, we deem it proper to increase the amount of damages

imposed by the lower court in both cases. In Criminal Case No. 2001-1555, this Court hereby
awards ₱75,000.00 as civil indemnity23 and ₱30,000.00 as exemplary damages.24 The award
of ₱50,000.00 as moral damages in the foregoing case is sustained. Appellant is also liable
to pay ₱40,000.00 as moral damages and ₱30,000.00 as exemplary damages, in relation to
Criminal Case No. 2002-1777.

WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-Cebu in

CA-G.R. CEB CR-HC No. 01000 with MODIFICATIONS. In Criminal Case No. 2002-1777,
we find that appellant Regie Labiaga is GUILTY of Attempted Murder and shall suffer an
indeterminate sentence ranging from two (2) years, four (4) months and one (1) day of
prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as
maximum, and pay ₱40,000.00 as moral damages and ₱30,000.00 as exemplary damages.
In Criminal Case No. 2001-1555, appellant shall pay ₱75,000.00 as civil indemnity,
₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages.

SO ORDERED.

xxx skipped one case. GMA case. FIND THAT.

[G.R. No. 123979 : December 03, 1998]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS., ALIPIO SANTIANO, JOSE

SANDIGAN, ARMENIA PILLUETA AND JOSE VICENTE (JOVY) CHANCO ACCUSED-
APPELLANTS.

DECISION

VITUG, J.:

Accused-appellants Alipio Santiano, Jose Sandigan, Armenia Pillueta and Jose Vicente (Jovy) Chanco
were indicted for the kidnapping with murder of Ramon John Dy Kow, Jr., a detention prisoner at
the Naga City Jail, in an amended Information, docketed Criminal Case No. P-2319, filed with the
Regional Trial Court ("RTC) of Pili, Branch 32, Camarines Sur.

When arraigned, the four accused pleaded not guilty to the charge. The trial thereupon ensued.

The evidence submitted by the prosecution, disclosing its version of the case, is narrated by the
Solicitor General in the Peoples brief.
"On May 13, 1993, the kidnap victim, Ramon John Dy Kow, Jr. and his live-in partner, Loida
Navidad, were arrested by appellants Jose Sandigan and Armenia Pillueta and several other
NARCOM agents for alleged illegal possession of marijuana (p. 32, TSN, April 20, 1994).

After the arrest, they were brought to the NARCOM Office situated at the compound of the
Philippine National Police (PNP) Headquarters, Naga City (p. 32, ibid.). Thereat, they were at first
warned by appellant Pillueta not to contact a lawyer (p. 35, ibid.). Appellant Pillueta likewise
reminded them that it is only a matter of P10,000.00" (p. 35, ibid.).

"When Navidads brother nonetheless arrived accompanied by a lawyer, appellant Pillueta got angry
(p. 38, ibid.). At once, the victim and Natividad were dragged to the Naga City Jail situated at a
distance of six (6) to seven (7) meters from the Narcom Office (pp. 10, 38-39, ibid.). Since their
arrest, they were detained at the Naga City Jail (ibid.).

"Sometime in July 1993, appellant Alipio Santiano was detained at the Naga City Jail (pp. 4-
5, ibid.). He was detained in the same cell occupied by the victim (p. 6, ibid.). When appellant
Santiano was mauled by the inmates of Cell 3, the victim was one of those who participated in
mauling him (p. 16, ibid.).

After the release of Santiano, he returned to the City Jail in November 1993 accompanied by one Lt.
Dimaano (pp. 7-8, ibid.). Thereat, the victim was pointed to by appellant Santiano as the one who
mastermind his mauling (ibid.).

On December 27, 1993, at about 6:00 oclock in the evening, the victim asked permission from a jail
trustee to allow him to buy viand outside the jail (pp. 7-9, ibid.). When he left, the victim was
wearing a fatigue jacket and short pants (p. 9, ibid.).

"As the victim emerged from the PNP store, he was accosted by appellants Sandigan and Santiano
(p. 7, TSN, April 25, 1994). The two (2) appellants held the victim between them and thereafter
hurriedly proceeded towards the NARCOM Office Situated at a distance of about twenty-five (25)
meters away (pp. 7, 38-41, ibid.). Upon reaching the door of the NARCOM office, the victim was
pushed inside (pp. 7-8, ibid.). Once the victim was already inside the NARCOM Office, appellant
Sandigan proceeded to and took his place at Plaza Barlin facing the PNP Police Station (pp. 8-
12, ibid.). The victim was made to sit and thereafter mauled by appellant Santiano (pp. 8-11, ibid.).
Santiano got hold of a handkerchief, rolled it around his fists and continued to punch the victim for
almost fifteen (15) minutes (p. 16, ibid.). As the victim was being mauled, appellant Pillueta stood
by the door of the Narcom office, her both hands inside her pockets while looking to her right and
left, acting as a lookout (ibid.).

"At this time, appellant Chanco who owned and drove his trimobile, parked it in front of the door of
the NARCOM Office (pp. 15, 17, TSN, April 25, 1994). Thereafter, he proceeded inside the NARCOM
Office (pp. 15, 17, ibid.).

"After a few minutes, appellant Chanco went out of the NARCOM Office and started the trimobile (p.
21, ibid.). His co-appellant Santiano and Pillueta followed him. Inside the trimobile, appellant
Pillueta occupied the back seat (p. 21, ibid.). Santiano occupied the reversed seat in front of the
passenger seat which was occupied by the victim (ibid.).

"As appellant Chanco was about to start his trimobile, appellant Sandigan, who was at Plaza Barlin,
transferred to and stationed himself at the Century Fox in front of the GSIS building situated at the
corner of General Luna and Arana Streets (. 23, ibid.).

"The trimobile proceeded towards the direction of San Francisco Church (p. 40, TSN, April 23,
1994). When it passed the Panganiban Drive, Naga City, on its way towards the direction of
Palestina, Pili, Camarines Sur, the victim was still aboard the trimobile at the passenger seat
nearest the driver (p. 4, TSN, May 24, 1994).

"When prosecution witness Rañola heard over the radio that a person was found dead at the canal
in Palestina, Pili, Camarines Sur, he lost no time in informing a policeman Prila of the Pili Police
Department that the descriptions of the dead person he heard over the radio fit not only the person
he saw being hauled to and thereafter mauled at the NARCOM Office but likewise the same person
who was on board the trimobile driven by the appellant Chanco (p. 13, TSN. May 6, 1994).

"Robert Dy Kow identified the man found dead in Palestina, Pili, Camarines Sur, as his brother
Ramon John Dy Kow, Jr."[1]

The defense presented its own account of the facts hereunder expounded by it; viz:
"Accused-appellant Armenia Pillueta is an organic member of the NARCOM, Naga City, Command.
Accused-appellant Jose Sandigan is a regular member of the PNP but, he was a former organic
member of the NARCOM. On the other hand, Accused Alipio Santiano and Jose Vicente Jovi Chanco
are amongst the active Civilian Volunteer/Assists of the NARCOM.

"That at or about 5:00 oclock P.M. of December 27, 1993, accused-appellant Sandigan was in front
of the Advent theater; that while thereat, he saw accused-appellant Santiano and he invited the
latter for a snack at the Mang Donalds a burger house, situated just beside the Advent theater; that
after taking their snacks, they decided to go to the NARCOM office; that while on their way to the
NARCOM office, they saw accused-appellant Chanco emerging from the Nehrus Department Store
where the latter bought something; that this Nehrus Department Store is located in front of the
Naga City Police Head Quarters which is also near the NARCOM office; that the three of them
(Sandigan, Santiano and Chanco) proceeded to the NARCOM office; that when they arrived,
accused-appellant Pillueta, SPO3 Lorna Onang" Fernandez, Tet Deniega and the NARCOM, District
Commander P/INSP. Del Socorro were at the NARCOM office while accused-appellant Chancos
trimobile was parked in front of the NARCOM office; that while in the NARCOM office, accused-
appellant Santiano and Chanco were joking with each other, like kids, such that accused-appellants
Santiano would sling accused-appellant Chanco with his handkerchief; that, as it was intermittently
raining, accused-appellants Sandigan, Santiano and Chanco left the NARCOM office past 6:00 P.M.
aboard the trimobile of accused-appellants Chanco, while accused-appellant Pillueta togethjer with
SPO3 Lorna Fernandez and Tet Deniega left the Narcom office at or about 8:00 P.M. and proceeded
to the Sampaguita Music Lounge, to watch a lady band performing at he Sampaguita Music Lounge,
leaving behind P/Insp. Nelson Del Socorro at the NARCOM office.

"That upon leaving the NARCOM office and while on board the trimobile accused-appellants
Sandigan, Santiano and Chanco were deciding whether to see a movie or have a round of drink and,
after failing to decide whether to see a movie or a round of drink, accused-appellants Sandigan and
Chanco conducted accused-appellants Santiano to the jeepney terminal for Milaor, Camarines Sur
and thereupon, accused-appellant Chanco also conducted accused-appellant Sandigan to the
Philtranco terminal where the latter boarded a bus to Bato, Camarines Sur where he resides.

"That between 6:30 and 7:00 o'clock P.M. of the same date, accused-appellant Santiano was in
Milaor, Camarines Sur, a Municipality less than four kilometers away from Naga City, and fetched
Ms. Arcadia Paz, a traditional mid-wife (komadrona), from the latters residence to conduct/perform
a pre-natal therapy (hilot) upon his (Santiano) pregrant wife; that Ms. Paz and accused-appellant
Santiano proceeded to and arrived at the latters house in Naga City and about past 7:00 o'clock in
the evening where Ms. Paz conducted a pre-natal therapy upon appellant Santianos wife; that Ms.
Paz finished the pre-natal therapy at or about 9:00 o'clock P.M.; that she (Paz) left the house of
accused-appellant Santiano and was accompanied for home by latter at or about 10:00 o'clock of
the same evening; that from past 7:00 o'clock when Paz and Santiano arrived at the latters house
until past 10:00 o'clock when they left Santianos house, accused-appellant Santiano was all the
time present at and never left his house.

"That on the other hand, SPO3 Fernandez, Deniega and accused-appellant Pillueta, upon leaving the
NARCOM office, went directly to the Sampaguita Music lounge and watched the lady band perform
thereat; that Roy Cabral, a common acquaintance of SPO3 Fernandez, Deniega and accused-
appellant Pillueta, even saw and approached them at their table inside the Sampaguita Music
Lounge; that the three of them (SPO3 Fernandez, Deniega and Pillueta) left the Sampaguita Music
Lounge at or about 2:00 A.M. of December 28, 1993, and thereupon, they went to their respective
homes.

"That on December 27, 1993, at any time of the day, the late Ramon John Dy Kow, Jr. was neither
seen by the accused-appellants nor was he in the NARCOM office more specifically and particularly
between 6:00 to 7:00 P.M. of the same date; that the late Ramon John Dy Kow, Jr. was known to
SPO3 Fernandez and his (Dy Kow, Jr.) height and body built is almost the same or similarly the
same as that of accused-appellant Chanco; that she (SPO3 Fernandez) also known William Rañola
whom she usually see drunk/under the influence of liquor;

"That in the first week of January, 1994, during the investigation of the case conducted by the PNP
Pili, Camarines Sur, SPO3 Fernandez was asked by major Ernesto Idian, chief of PNP Pili, Camarines
Sur, of accused-appellant Pilluetas whereabouts in the night of December 27, 1993, where she
(SPO3 Fernandez) told Major Idian that accused-appellant Pillueta was with her (SPO3 Fernandez)
at the Sampauita Music Lounge; that Major Idian did not ask her (SPO3 Fernandez) to execute an
affidavit of what she told him instead, Major Idian requested her not to tell accused-appellant
Pillueta about what he asked her.

"That on January 20, 1994, accused-appellants Pillueta, Santiano and Chanco, reported and
submitted themselves to their superior officer, Col. Norberto Manaog, Deputy Director of the
NARCOM at Camp Crame, Quezon City, wherein they reported that they were suspected of having
killed Ramon John Dy Kow, Jr. and requested that they be placed under his custody; that Col.
Manaog referred to them to the legal officer of the NARCOM, Major Acpal; that after being informed
by accused-appellants Pillueta, Santiano and Chanco that they did not have any idea of whatever a
warrant of arrest was already issued against them, Col. Manaog, in consultation with Major Acpal,
told them that there is no yet basis for them to be placed under the custody, so that, Col. Manaog
instructed them just get in touch with him so that if a warrant of arrest comes out, the same could
be served upon them; that Col. Manaog directed Major Acpal to proceed to Pili, Camarines Sur to
determine the status of the investigation and to know whether a warrant of arrest was already
issued; that on January 24, 1994, Major Acpal went to Pili, Camarines Sur and found out that a
warrant of arrest against accused-appellants, Sandigan, who was already arrested, Pillueta and
Santiano has been issued on January 21, 1994; that on January 25, 1994, Major Acpal, being a
lawyer and the Legal officer of the NARCOM filed before the Municipal Trial Court, Pili, Camarines
Sur, a motion to quash the warrant of arrest; that on January 23, 1994 accused-appellant Pillueta
informed Col. Manaog that she was hospitalized due to a car accident and that she may be placed
under his custody should a warrant for her arrest be issued; on January 26, 1994, she was placed
under the custody of her superior, Col. Manaog of the NARCOM. On the other hand, accused-
appellants, Santiano and Chanco were, from time to time, contacting Col. Manaog to determine
whether a warrant of arrest was already issued but, since Col. Manaog was always out of his office,
they were able to contact, via telephone facility, Col. Manaog only on April 16, 1994; and accused-
appellants Chanco and Santiano went to the office of Narcom, Camp Crame, Quezon City,
voluntarily surrendered, and Maj. Acpal placed them under the custody of the NARCOM and were
detained at PNP NARCOM Cell, Camp Crame, Quezon City. The records of this case show that no
warrant of arrest was issued against accused-appellant Chanco (Order dated Sept 5, 1994),
however, he voluntarily surrendered and submitted to the custody of the NARCOM and to the trial
court."[2]
Appellant Jovy Chanco had this further statement in his supplemental appeal brief; thus:
"On December 28, 1993, a cadaver of an unknown person was discovered somewhere in the vicinity
of Barangay Palestina, Municipality of Pili, Province of Camarines, by Danilo Camba, the Barangay
Captain of said locality. The corpse was later on identified by Robert Dy Kow as that one of his
brother, Ramon John Dy Kow, Jr."[3]
Dr. Thomas S. Gonzales performed an autopsy on the cadaver of the victim. His findings revealed
that Dy Kow, Jr., had fatally sustained the following injuries:
"Eye: Contusion, upper lid extending to the outer canthus, right;

"Ear: lacerated wound ripping off the lowest pole of the lobule, right; serrated border

"Sub-occipital region: lacerated wound, 0.9 cms. In length, centrally located;

"Neck: punctured wound, 3-4 mm deep, semi-circular with serrated border, base of neck at the
sternomastoid border, right;

"Chest: Gunshot wound

point of entrance: 2nd ICS, sternal border, right, 12 mm in diameter

Bullet route: From the point of entrance extending backwards to the left, piercing the heart and left
lung and lodging on the anterior aspect or surface of the sub scapular area, left.

"Point of exist: None

"Bullet slug: Recovered

"CAUSE OF DEATH: INTERNAL HEMORRHAGE SECONDARY TO GUNSHOT WOUND."[4]

Evaluating the evidence before it, the trial court found all four accused guilty beyond reasonable
doubt of kidnapping, defined and penalized under Article 267 of the Revised Penal Code; the court
adjudged:
"UPON THE FOREGOING CONSIDERATIONS, this Court FINDS FOR THE PEOPLE OF THE
PHILIPPINES, and finds all of the accused, Jose Sandigan, Armenia, aka Armie Pillueta, Alipio
Santiano, and Jose Vicente Chanco, aka Jovy, guilty beyond reasonable doubt of the crime of
KIDNAPPING as defined and penalized under Art. 267 of the Revised Penal Code, and there being no
mitigating or aggravating circumstances, hereby sentences each and all of them to suffer
imprisonment, RECLUSION PERPETUA, with all the accessories of the penalty, and to indemnify the
heirs of Ramon John Dy Kow, Jr. the sum of Fifty Thousand Pesos, and to pay the cost; they are
credited in full for the preventive imprisonment.[5]
Accused-appellants filed the instant appeal.
Assailing the decision of the court a quo, appellants would insist that the amended information
under which they were arraigned, tried and convicted, although so captioned as an indictment for
the complex crime of kidnapping with murder, was, in reality, a mere indictment for murder.
According to appellants, the use of the words "abducted" and "kidnapping" in the amended
information was not in itself indicative of the crime of kidnapping being charged but that, from the
averments of the information, it could be apparent that Ramon John Dy Kow, Jr., was "abducted or
kidnapped" not for the purpose of detaining but of liquidating him. Hence, the defense theorized,
the conviction for kidnapping had no legal ground to stand on.

Let it not be said that the contention lacks remarkableness; nevertheless, it is a legal proposition
that can here hardly be accepted. The amended information reads:
"The undersigned 1st Assistant Provincial Prosecutor of Camarines Sur accuses JOSE SANDIGAN,
ALIPIO SANTIANO, ARMIE PILLUETA and JOVY CHANCO of the crime of KIDNAPPING WITH
MURDER, defined and penalized under Article 267 and Article 248 of the Revised Penal Code,
committed as follows:

"That on or about the 27th day of December 1993 between 6:00 o'clock to 7:00 o'clock in the
evening at Barangay Palestina, Municipality of Pili, Province of Camarines Sur, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and
mutually helping one another with intent to kill, with treachery, superior strength and evident
premeditation, did then and there, willfully, unlawfully and feloniously abduct, kidnap and bring into
a secluded place at Palestina, Pili Camarines Sur, one RAMON JOHN DY KOW, JR. and while thereat
attack and shoot with firearm the said Ramon John Dy Kow, Jr. for several times hitting him on the
different parts of his body causing his instantaneous death.

"That as a consequence of the death of the victim Ramon John Dy Kow, Jr. his heirs suffered
damages."[6]

The information is not so wanting as to render it legally inadequate for the purpose it has been
intended by the prosecution. It should be sufficient for an information to distinctly state the
statutory designation of the offense and the acts or omissions complained of as being constitutive of
that offense.[7] A reading of the amended information readily reveals that the charge is for
"kidnapping with murder, defined and penalized under Article 267 (Kidnapping and Serious Illegal
Detention) and Article 248 (Murder) of the Revised Penal Code." Evidently, appellants have been
properly apprised of the charges; the information did go on to state thus "
"That on or about the 27th day of December 1993 between 6:00 o'clock to 7:00 o'clock in the
evening at Barangay Palestina, Municipality of Pili, Province of Camarines Sur, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and
mutually helping one another with intent to kill, with treachery, superior strength and evident
premeditation, did then and there, wilfully, unlawfully and feloniously abduct, kidnap and bring into
a secluded place at Palestina, Pili, Camarines Sur, one RAMON JOHN DY KOW, JR. and while thereat
attack and shoot with firearm the said Ramon John Dy Kow, Jr. for several times hitting him on the
different parts of his body causing his instantaneous death."[8]
The accused have gone through trial without any objection thereover. Exceptions relative to the
statement or recital of fact constituting the offense charged ought be presented before the trial
court; if none is taken and the defective or even omitted averments are supplied by competent
proof, it would not be error for an appellate court to reject those exceptions on appeal.[9]

The issue is next posed: When a complex crime has been charged in an information and the
evidence fails to support the charge on one of the component offenses, can the defendant still be
separately convicted of the other offense? The question has long been answered in the affirmative.
In United States vs. Lahoylahoy and Madanlog,[10] the Court has ruled to be legally feasible the
conviction of an accused on one of the offenses included in a complex crime charged, when properly
established, despite the failure of evidence to hold the accused of the other charge.

Article 267 of the Revised Penal Code, prior to its amendment by Section 8 of Republic Act
7659,[11]reads:
"Art. 267. Kidnapping and serious illegal detention.- Any private individual who shall kidnap or
detain another, or in any other manner deprive him of his liberty, shall suffer the penalty
of reclusion perpetua to death;

"1. If the kidnapping or detention shall have lasted more than five days.
"2. If it shall have been committed simulating public authority.

"3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained;
or if threats to kill him shall have been made.

"4. If the person kidnapped or detained shall be a minor, female, or a public officer.

"The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above
mentioned were present in the commission of the offense."
The elements of the offense, here adequately shown, are (a) that the offender is a private
individual; (b) that he kidnaps or detains another, or in any other manner deprives the latter of his
liberty; (c) that the act of detention or kidnapping is illegal; and (d) that, in the commission of the
offense, any of the following circumstances is present, i.e., (I) that the kidnapping or detention lasts
for more then 5 days, or (ii) that it is committed simulating public authority, or (iii) that any serious
physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made,
or (iv) that the person kidnapped or detained is a minor, female, or a public officer.[12]

Prosecution witness William Rañola testified that he had seen the victim being accosted, held and
thereafter dragged to the NARCOM office by appellants Santiago and Sandigan. Inside the NARCOM
office, the victim was mauled by Santiano. For several minutes, Santiano continued to batter him
with punches while Pillueta stood by the door and so acted as the "lookout." The appellants then
took the victim away on a trimobile owned and driven by Chanco. Rañola positively identified the
fatigue jacket worn by the victim on the evening of his abduction on 27 December 1993 and when
his lifeless body was found in the morning of 28 December 1993. Don Gumba corroborated Rañolas
testimony. Gumba was positive that he had seen the victim at around eight o'clock in the evening of
27 December 1993 with appellants Santiano and Pillueta on Board the trimobile driven by appellant
Chanco on its way towards the direction of Palestina, Pili, Camarines Sur, where, the following
morning, the victim was found evidently after succumbing to several gunshot wounds.

Appellants have not shown any nefarious motive on the part of the witnesses that might have
influenced them to declare falsely against appellants, the Court sees no justification to thereby deny
faith and credit to their testimony.[13] The Court likewise shares the view of the Solicitor General in
pointing out that -
"1. There is no question that the victim, who was on the date in question detained at the Naga City
Jail, asked permission from the jail trustee in order to buy viand outside. It was while he was
emerging from the PNP store that he was accosted by appellants Santiano and Sandigan

"2. From the moment that the victim was accosted in Naga City, he was at first dragged to the
NARCOM Office where he was mauled. This circumstance indicated the intention to deprive him of
his liberty for sometime, an essential element of the crime of kidnapping.

"3. The victim did not only sustain serious physical injuries but likewise died as indicated in the
autopsy report, thus, belying appellants claim that none of the circumstances in Article 267 of the
Revised Penal Code was present.

"4. Witness Don Gumba was positive when he declared that he saw the victim at about 8:00 o'clock
in the evening of December 27, 1993 with appellants Santiano and Pillueta on board the trimobile
driven by appellant Chanco on its way towards the direction of Palestina, Pili, Camarines Sur where
the victim was found dead."[14]
The fact alone that appellant Pillueta is "an organic member of the NARCOM" and appellant
Sandigan "a regular member of the PNP" would not exempt them from the criminal liability for
kidnapping.[15] It is quite clear that in abducting and taking away the victim, appellants did so
neither in furtherance of official function nor in the pursuit of authority vested in them. It is not, in
fine, in relation to their office, but in purely private capacity, that they have acted in concert with
their co-appellants Santiano and Chanco.

The crime of kidnapping cannot be here absorbed by the charge of murder since the detention of
the victim is not shown to have been for the purpose of liquidating him. Appellants themselves, in
fact, all deny having killed the victim. And while the evidence may have thus been found to be
wanting by the trial court so as to equally hold appellants responsible for the death of the victim,
the Court is convinced that the court a quo did not err in making them account for kidnapping. The
circumstances heretofore recited indicate the attendance of conspiracy among the appellants
thereby making them each liable for the offense.

The claim of appellants that they cannot be held liable for indemnity in the amount of P50,000.00
because the prosecution did not present evidence to prove damages is without merit. The indemnity
awarded by the trial court clearly refers to the civil indemnity for the offense[16] and not for actual
damages sustained.

WHEREFORE, the appealed decision of the trial court is AFFIRMED. Costs against appellants.

SO ORDERED.

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MAMERTO NARVAEZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch
I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the
conviction of the accused in a decision rendered on September 8, 1970, with the following
pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the

aggravating circumstance of evident premeditation offset by the mitigating
circumstance of voluntary surrender. The proper penalty imposable,
therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal
Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the

crime of murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION

PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the
sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral
damages, P 2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION

PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the
sum of P12,000.00 as compensatory damages, P10,000.00 as moral
damages, P2,000.00 as attorney's fees, the offended party having been
represent by a private prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus
Verano and Cesar Ibanez together with the two deceased Davis Fleischer
and Flaviano Rubia, were fencing the land of George Fleischer, father of
deceased Davis Fleischer. The place was in the boundary of the highway
and the hacienda owned by George Fleischer. This is located in the
municipality of Maitum, South Cotabato. At the place of the fencing is the
house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza
II). At that time, appellant was taking his rest, but when he heard that the
walls of his house were being chiselled, he arose and there he saw the
fencing going on. If the fencing would go on, appellant would be prevented
from getting into his house and the bodega of his ricemill. So he addressed
the group, saying 'Pare, if possible you stop destroying my house and if
possible we will talk it over what is good,' addressing the deceased Rubia,
who is appellant's compadre. The deceased Fleischer, however, answered:
'No, gademit, proceed, go ahead.' Appellant apparently lost his equilibrium
and he got his gun and shot Fleischer, hitting him. As Fleischer fell down,
Rubia ran towards the jeep, and knowing there is a gun on the jeep,
appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-
14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle
between the Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer
and deceased Rubia the assistant manager, on the one hand, and the land settlers of
Cotabato, among whom was appellant.

From the available records of the related cases which had been brought to the Court of
Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-
26757 and L-45504), WE take judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao
in 1937 and settled in Maitum, a former sitio of Kiamba and now a separate municipality of
South Cotabato. He established his residence therein, built his house, cultivated the area,
and was among those who petitioned then President Manuel L. Quezon to order the
subdivision of the defunct Celebes Plantation and nearby Kalaong Plantation totalling about
2,000 hectares, for distribution among the settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American

landowner in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the
same area formerly leased and later abandoned by Celebes Plantation Company, covering
1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in
1941 but the survey report was not submitted until 1946 because of the outbreak of the
second world war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26
and 38, Ps. 176 Kiamba, were set aside for Sales Application No. 21983, while the rest were
subdivided into sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-
33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was declared
open for disposition, appraised and advertised for public auction. At the public auction held in
Manila on August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But
because of protests from the settlers the corresponding award in its favor was held in
abeyance, while an investigator was sent by the Director of Lands to Kiamba in the person of
Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable settlement
signed by the representative of the settlers. This amicable settlement was later repudiated by
the settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved the
same and ordered the formal award of the land in question to Fleischer and Company. The
settlers appealed to the Secretary of Agriculture and Natural Resources, who, however,
affirmed the decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of
Cotabato which then consisted only of one sala, for the purpose of annulling the order of the
Secretary of Agriculture and Natural Resources which affirmed the order of the Director of
Lands awarding the contested land to the company. The settlers as plaintiffs, lost that case
in view of the amicable settlement which they had repudiated as resulting from threats and
intimidation, deceit, misrepresentation and fraudulent machination on the part of the
company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise
affirmed on August 16, 1965 the decision of the Court of First Instance in favor of the
company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated
September 24, 1966, from the land which they had been occupying for about 30 years.
Among those ejected was the appellant who, to avoid trouble, voluntarily dismantled his
house, built in 1947 at a cost of around P20,000.00, and transferred to his other house which
he built in 1962 or 1963 near the highway. The second house is not far from the site of the
dismantled house. Its ground floor has a store operated by Mrs. June Talens who was
renting a portion thereof. He also transferred his store from his former residence to the house
near the highway. Aside from the store, he also had a rice mill located about 15 meters east
of the house and a concrete pavement between the rice mill and the house, which is used for
drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa
and other leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch
I. to obtain an injunction or annulment of the order of award with prayer for preliminary
injunction. During the pendency of this case, appellant on February 21, 1967 entered into a
contract of lease with the company whereby he agreed to lease an area of approximately
100 to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for
Defense) for a consideration of P16.00 monthly. According to him, he signed the contract
although the ownership of the land was still uncertain, in order to avoid trouble, until the
question of ownership could be decided. He never paid the agreed rental, although he
alleges that the milling job they did for Rubia was considered payment. On June 25, 1968,
deceased Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion
of land in which your house and ricemill are located as per agreement
executed on February 21, 1967. You have not paid as as even after repeated
attempts of collection made by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have
no alternative but to terminate our agreement on this date.
 I am giving you six months to remove your house, ricemill, bodega, and water
pitcher pumps from the land of Fleischers & Co., Inc. This six- month period
shall expire on December 31, 1966.

In the event the above constructions have not been removed within the six-
month period, the company shall cause their immediate demolition (Exhibit
10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38
by putting bamboo posts along the property line parallel to the highway. Some posts were
planted right on the concrete drier of appellant, thereby cutting diagonally across its center
(pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p. 231,
t.s.n., supra). The fence, when finished, would have the effect of shutting off the accessibility
to appellant's house and rice mill from the highway, since the door of the same opens to the
Fleischers' side. The fencing continued on that fateful day of August 22, 1968, with the
installation of four strands of barbed wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm
all morning, was awakened by some noise as if the wall of his house was being chiselled.
Getting up and looking out of the window, he found that one of the laborers of Fleischer was
indeed chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased
Rubia was nailing the barbed wire and deceased Fleischer was commanding his laborers.
The jeep used by the deceased was parked on the highway. The rest of the incident is
narrated in the People's Brief as above-quoted. Appellant surrendered to the police
thereafter, bringing with him shotgun No. 1119576 and claiming he shot two persons (Exh.
Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-
appellant despite the fact that he acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting
defendant-appellant although he acted in defense of his rights (p. 20 of
Appellant's Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having
shot them from the window of his house with the shotgun which he surrendered to the police
authorities. He claims, however, that he did so in defense of his person and of his rights, and
therefore he should be exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1
of the Revised Penal Code, but in order for it to be appreciated, the following requisites must
occur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending

himself (Art. 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased Fleischer of the
following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to
his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan
natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having
been awakened to see the wall of his house being chiselled. The verbal exchange took place
while the two deceased were on the ground doing the fencing and the appellant was up in
his house looking out of his window (pp. 225-227, supra). According to appellant, Fleischer's
remarks caused this reaction in him: "As if, I lost my senses and unknowingly I took the gun
on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.
Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing
the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down,
Mr. Rubia ran towards the jeep and knowing that there was a firearm in the
jeep and thinking that if he will take that firearm he will kill me, I shot at him
(p. 132, supra, Emphasis supplied).

The foregoing statements of appellant were never controverted by the prosecution. They
claim, however, that the deceased were in lawful exercise of their rights of ownership over
the land in question, when they did the fencing that sealed off appellant's access to the
highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five
persons, consisting of the deceased and their three laborers, were doing the fencing and
chiselling of the walls of appellant's house. The fence they were putting up was made of
bamboo posts to which were being nailed strands of barbed wire in several layers.
Obviously, they were using tools which could be lethal weapons, such as nail and hammer,
bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not
disputed that the jeep which they used in going to the place was parked just a few steps
away, and in it there was a gun leaning near the steering wheel. When the appellant woke up
to the sound of the chiselling on his walls, his first reaction was to look out of the window.
Then he saw the damage being done to his house, compounded by the fact that his house
and rice mill will be shut off from the highway by the fence once it is finished. He therefore
appealed to his compadre, the deceased Rubia, to stop what they were doing and to talk
things over with him. But deceased Fleischer answered angrily with 'gademit' and directed
his men to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would
have resulted in the further chiselling of the walls of appellant's house as well as the closure
of the access to and from his house and rice mill-which were not only imminent but were
actually in progress. There is no question, therefore, that there was aggression on the part of
the victims: Fleischer was ordering, and Rubia was actually participating in the fencing. This
was indeed aggression, not on the person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence
off the contested property, to destroy appellant's house and to shut off his ingress and
egress to his residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land
or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of
the order of award to Fleischer and Company was still pending in the Court of First Instance
of Cotabato. The parties could not have known that the case would be dismissed over a year
after the incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground
of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No.
240 filed in 1950 for the annulment of the award to the company, between the same parties,
which the company won by virtue of the compromise agreement in spite of the subsequent
repudiation by the settlers of said compromise agreement; and that such 1970 dismissal also
carried the dismissal of the supplemental petition filed by the Republic of the Philippines on
November 28, 1968 to annul the sales patent and to cancel the corresponding certificate of
title issued to the company, on the ground that the Director of Lands had no authority to
conduct the sale due to his failure to comply with the mandatory requirements for publication.
The dismissal of the government's supplemental petition was premised on the ground that
after its filing on November 28, 1968, nothing more was done by the petitioner Republic of
the Philippines except to adopt all the evidence and arguments of plaintiffs with whom it
joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment
in Civil Case No. 755 filed on November 14, 1966 and his execution of the contract of lease
on February 21, 1967 was just to avoid trouble. This was explained by him during cross-
examination on January 21, 1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the
place because even though we do not know who really owns this portion to
avoid trouble. To avoid trouble we better pay while waiting for the case
because at that time, it was not known who is the right owner of the place. So
we decided until things will clear up and determine who is really the owner,
we decided to pay rentals (p. 169, t.s.n., Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense
Exhibits) within which to vacate the land. He should have allowed appellant the peaceful
enjoyment of his properties up to that time, instead of chiselling the walls of his house and
closing appellant's entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or

intimidation as long as there is a possessor who objects thereto. He who
believes that he has an action or a right to deprive another of the holding of a
thing must invoke the aid of the competent court, if the holder should refuse
to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and
should he be disturbed therein he shall be protected in or restored to said
possession by the means established by the laws and the Rules of Court
(Articles 536 and 539, Civil Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause
damage to appellant's house, nor to close his accessibility to the highway while he was
pleading with them to stop and talk things over with him. The assault on appellant's property,
therefore, amounts to unlawful aggression as contemplated by law.
 Illegal aggression is equivalent to assault or at least threatened assault of
immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had
the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude
any person from the enjoyment and disposal thereof. For this purpose, he
may use such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of

self-defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code.
When the appellant fired his shotgun from his window, killing his two victims, his resistance
was disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of
sufficient provocation on the part of appellant who was defending his property. As a matter of
fact, there was no provocation at all on his part, since he was asleep at first and was only
awakened by the noise produced by the victims and their laborers. His plea for the deceased
and their men to stop and talk things over with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the
elements for justification are present. He should therefore be held responsible for the death
of his victims, but he could be credited with the special mitigating circumstance of incomplete
defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery
cannot be appreciated in this case because of the presence of provocation on the part of the
deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a
sudden unprovoked attack is therefore lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault
adopted by the aggressor was deliberately chosen with a special view to the accomplishment
of the act without risk to the assailant from any defense that the party assailed might have
made. This cannot be said of a situation where the slayer acted instantaneously ..." (People
vs. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not

sufficiently established. The only evidence presented to prove this circumstance was the
testimony of Crisanto Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and
a laborer of Fleischer and Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he
was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the
crossing, Maitum, South Cotabato, when the accused and his wife talked to
him. Mrs. Narvaez asked him to help them, as he was working in the
hacienda. She further told him that if they fenced their house, there is a head
that will be broken. Mamerto Narvaez added 'Noy, it is better that you will tell
Mr. Fleischer because there will be nobody who will break his head but I will
be the one.' He relayed this to Mr. Flaviano Rubia, but the latter told him not
 to believe as they were only Idle threats designed to get him out of the
hacienda (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance
of evident premeditation. As WE have consistently held, there must be "direct evidence of
the planning or preparation to kill the victim, .... it is not enough that premeditation be
suspected or surmised, but the criminal intent must be evidenced by notorious outward acts
evincing the determination to commit the crime" (People vs. Ordioles, 42 SCRA 238).
Besides, there must be a "showing" that the accused premeditated the killing; that the culprit
clung to their (his) premeditated act; and that there was sufficient interval between the
premeditation and the execution of the crime to allow them (him) to reflect upon the
consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis
Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill
the victims nor that the accused premeditated the killing, and clung to his premeditated act,
the trial court's conclusion as to the presence of such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the
fencing and destroying his house and to talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of
voluntary surrender, it appearing that appellant surrendered to the authorities soon after the
shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The
appellant awoke to find his house being damaged and its accessibility to the highway as well
as of his rice mill bodega being closed. Not only was his house being unlawfully violated; his
business was also in danger of closing down for lack of access to the highway. These
circumstances, coming so near to the time when his first house was dismantled, thus forcing
him to transfer to his only remaining house, must have so aggravated his obfuscation that he
lost momentarily all reason causing him to reach for his shotgun and fire at the victims in
defense of his rights. Considering the antecedent facts of this case, where appellant had
thirty years earlier migrated to this so-called "land of promise" with dreams and hopes of
relative prosperity and tranquility, only to find his castle crumbling at the hands of the
deceased, his dispassionate plea going unheeded-all these could be too much for any man-
he should be credited with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being
attended by any qualifying nor aggravating circumstance, but extenuated by the privileged
mitigating circumstance of incomplete defense-in view of the presence of unlawful
aggression on the part of the victims and lack of sufficient provocation on the part of the
appellant-and by two generic mitigating circumstance of voluntary surrender and passion and
obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion
temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be
imposed if the deed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same. Considering that the majority of the requirements for defense of
property are present, the penalty may be lowered by two degrees, i.e., to prision
correccional And under paragraph 5 of Article 64, the same may further be reduced by one
degree, i.e., arresto mayor, because of the presence of two mitigating circumstances and no
aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American
World Airways (43 SCRA 397), the award for moral damages was reduced because the
plaintiff contributed to the gravity of defendant's reaction. In the case at bar, the victims not
only contributed but they actually provoked the attack by damaging appellant's properties
and business. Considering appellant's standing in the community, being married to a
municipal councilor, the victims' actuations were apparently designed to humiliate him and
destroy his reputation. The records disclose that his wife, councilor Feliza Narvaez, was also
charged in these two cases and detained without bail despite the absence of evidence
linking her to the killings. She was dropped as a defendant only upon motion of the
prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted
upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and
Company, despite its extensive landholdings in a Central Visayan province, to extend its
accumulation of public lands to the resettlement areas of Cotabato. Since it had the
capability-financial and otherwise-to carry out its land accumulation scheme, the lowly
settlers, who uprooted their families from their native soil in Luzon to take advantage of the
government's resettlement program, but had no sufficient means to fight the big landowners,
were the ones prejudiced. Thus, the moral and material suffering of appellant and his family
deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
correccional or arrests mayor and fine who has no property with which to meet his civil
liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50.
However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made the
provisions of Art. 39 applicable to fines only and not to reparation of the damage caused,
indemnification of consequential damages and costs of proceedings. Considering that
Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it may be
given retroactive effect pursuant to Article 22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY

TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC
MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION,
WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY
SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO
MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF
FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT
SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES
AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST

FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST
22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.
G.R. No. 181354 February 27, 2013

SIMON A. FLORES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to
annul and set aside the August 2 7, 2004 Decision1 of the Sandiganbayan, First
Division (Sandiganbayan), in Criminal Case No. 16946, finding petitioner Simon A.
Flores (Flores) guilty beyond reasonable doubt of the crime of Homicide, and its November
29, 2007 Resolution2 denying his motion for reconsideration.

Flores was charged with the crime of Homicide in an Information, dated July 9, 1991, filed
before the Sandiganbayan which reads:

That on or about the 15th day of August, 1989, at nighttime, in the Municipality of Alaminos,
Province of Laguna, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, a public officer, being then the Barangay Chairman of San Roque,
Alaminos, Laguna, while in the performance of his official functions and committing the
offense in relation to his office, did then and there willfully, unlawfully, feloniously and with
intent to kill, shoot one JESUS AVENIDO with an M-16 Armalite Rifle, thereby inflicting upon
him several gunshot wounds in different parts of his body, which caused his instantaneous
death, to the damage and prejudice of the heirs of said JESUS AVENIDO.

CONTRARY TO LAW.3

During his arraignment, on August 26, 1991, Flores pleaded "Not Guilty" and waived the pre-
trial. Thereafter, the prosecution presented four (4) witnesses, namely: Paulito Duran, one of
the visitors (Duran); Gerry Avenido (Gerry), son of the victim; Elisa Avenido (Elisa), wife of
the victim; and Dr. Ruben Escueta, the physician who performed the autopsy on the cadaver
of the victim, Jesus Avenido (Jesus).

For its part, the defense presented as witnesses, the accused Flores himself; his companion-
members of the Civilian Action Force Group Unit (CAFGU), Romulo Alquizar and Maximo H.
Manalo; and Dr. Rene Bagamasbad, resident physician of San Pablo City District Hospital.

The Version of the Prosecution

On August 15, 1989, on the eve of the barangay fiesta in San Roque, Alaminos, Laguna,
certain visitors, Ronnie de Mesa, Noli de Mesa, Marvin Avenido, and Duran, were drinking at
the terrace of the house of Jesus. They started drinking at 8:30 o’clock in the evening. Jesus,
however, joined his visitors only at around 11:00 o’clock after he and his wife arrived from
Sta. Rosa, Laguna, where they tried to settle a problem regarding a vehicular accident
involving one of their children. The drinking at the terrace was ongoing when Flores arrived
with an M-16 armalite rifle.
Duran testified that Jesus stood up from his seat and met Flores who was heading towards
the terrace. After glancing at the two, who began talking to each other near the terrace,
Duran focused his attention back to the table. Suddenly, he heard several gunshots
prompting him to duck under the table. Right after the shooting, he looked around and saw
the bloodied body of Jesus lying on the ground. By then, Flores was no longer in sight.5

Duran immediately helped board Jesus in an owner-type jeep to be brought to a hospital.

Thereafter, Duran, Ronnie de Mesa and Noli de Mesa went home. Jesus was brought to the
hospital by his wife and children. Duran did not, at any time during the occasion, notice the
victim carrying a gun with him.6

Gerry narrated that he was going in and out of their house before the shooting incident took
place, anxiously waiting for the arrival of his parents from Sta. Rosa, Laguna. His parents
were then attending to his problem regarding a vehicular accident. When they arrived, Gerry
had a short conversation with his father, who later joined their visitors at the terrace.7

Gerry was outside their house when he saw Flores across the street in the company of some
members of the CAFGU. He was on his way back to the house when he saw Flores and his
father talking to each other from a distance of about six (6) meters. Suddenly, Flores shot his
father, hitting him on the right shoulder. Flores continued shooting even as Jesus was
already lying flat on the ground. Gerry testified that he felt hurt to have lost his father.8

Elisa related that she was on her way from the kitchen to serve "pulutan" to their visitors
when she saw Flores, from their window, approaching the terrace. By the time she reached
the terrace, her husband was already lying on the ground and still being shot by Flores. After
the latter had left, she and her children rushed him to the hospital where he was pronounced
dead on arrival.9

As a consequence of her husband’s untimely demise, she suffered emotionally. She testified
that Jesus had an average monthly income of Twenty Thousand Pesos (₱20,000.00) before
he died at the age of forty-one (41). He left four (4) children. Although she had no receipt,
Elisa asked for actual damages consisting of lawyer’s fees in the amount of Fifteen
Thousand Pesos (₱15,000.00) plus Five Hundred Pesos (₱500.00) for every hearing, and
Six Thousand Five Hundred Pesos (₱6,500.00) for the funeral expenses.10

Dr. Ruben Escueta (Dr. Escueta) testified that on August 17, 1989, he conducted an autopsy
on the cadaver of Jesus, whom he assessed to have died at least six (6) hours before his
body was brought to him.11

Based on the Autopsy Report,12 it appeared that the victim suffered four gunshot wounds in
the different parts of his body, specifically: on the medial portion of the left shoulder, between
the clavicle and the first rib; on the left hypogastric region through the upper right quadrant of
the abdomen; on the tip of the left buttocks to the tip of the sacral bone or hip bone; and on
the right flank towards the umbilicus. The victim died of massive intra-abdominal hemorrhage
due to laceration of the liver.

The Version of the Defense

To avoid criminal liability, Flores interposed self-defense.

Flores claimed that in the evening of August 15, 1989, he, together with four members of the
CAFGU and Civil Service Unit (CSU), Maximo Manalo, Maximo Latayan (Latayan), Ronilo
Haballa, and Romulo Alquizar, upon the instructions of Mayor Samuel Bueser of Alaminos,
Laguna, conducted a ronda in Barangay San Roque which was celebrating the eve of its
fiesta.13

At around midnight, the group was about 15 meters from the house of Jesus, who had earlier
invited them for some "bisperas" snacks, when they heard gunshots seemingly emanating
from his house. Flores asked the group to stay behind as he would try to talk to Jesus, his
cousin, to spare the shooting practice for the fiesta celebration the following day. As he
started walking towards the house, he was stopped by Latayan and handed him a baby
armalite. He initially refused but was prevailed upon by Latayan who placed the weapon over
his right shoulder, with its barrel or nozzle pointed to the ground. Latayan convinced Flores
that such posture would gain respect from the people in the house of Jesus.14

Flores then proceeded to the terrace of the house of Jesus, who was having a drinking spree
with four others. In a calm and courteous manner, Flores asked Jesus and his guests to
cease firing their guns as it was already late at night and to save their shots for the following
day’s fiesta procession. Flores claimed that despite his polite, unprovocative request and the
fact that he was a relative of Jesus and the barangay chairman, a person in authority
performing a regular routine duty, he was met with hostility by Jesus and his guests. Jesus,
who appeared drunk, immediately stood up and approached

him as he was standing near the entrance of the terrace. Jesus abruptly drew his magnum
pistol and poked it directly at his chest and then fired it. By a twist of fate, he was able to
partially parry Jesus’ right hand, which was holding the pistol, and was hit on his upper right
shoulder.15

With fierce determination, however, Jesus again aimed his gun at Flores, but the latter was
able to instinctively take hold of Jesus’ right hand, which was holding the gun. As they
wrestled, Jesus again fired his gun, hitting Flores’ left hand.16

Twice hit by bullets from Jesus’ magnum pistol and profusely bleeding from his two wounds,
Flores, with his life and limb at great peril, instinctively swung with his right hand the baby
armalite dangling on his right shoulder towards Jesus and squeezed its trigger. When he
noticed Jesus already lying prostrate on the floor, he immediately withdrew from the house.
As he ran towards the coconut groves, bleeding and utterly bewildered over the unfortunate
incident that just transpired between him and his cousin Jesus, he heard more gunshots.
Thus, he continued running for fear of more untoward incidents that could follow. He
proceeded to the Mayor’s house in Barangay San Gregorio, Alaminos, Laguna, to report
what had happened. There, he found his ronda groupmates.17

The incident was also reported the following day to the CAFGU Superior, Sgt. Alfredo Sta.
Ana.

Decision of the Sandiganbayan

On August 27, 2004, after due proceedings, the Sandiganbayan issued the assailed
decision18 finding Flores guilty of the offense charged. The Sandiganbayan rejected Flores’
claim that the shooting was justified for failure to prove self-defense. It gave credence to the
consistent testimonies of the prosecution witnesses that Flores shot Jesus with an armalite
rifle (M16) which resulted in his death. According to the Sandiganbayan, there was no
reason to doubt the testimonies of the said witnesses who appeared to have no ill motive to
falsely testify against Flores. The dispositive portion of the said decision reads:
WHEREFORE, judgment is hereby rendered in Criminal Case No. 16946 finding the
accused Simon A. Flores GUILTY beyond reasonable doubt of the crime of homicide and to
suffer the penalty of 10 years and 1 day of prision mayor maximum, as minimum, to 17
years, and 4 months of reclusion temporal medium, as maximum. The accused is hereby
ordered to pay the heirs of the victim Fifty Thousand Pesos (₱50,000.00) as civil indemnity
for the death of Jesus Avenido, another Fifty Thousand Pesos (₱50,000.00) as moral
damages, and Six Thousand Five Hundred Pesos (₱6,500.00) as actual or compensatory
damages.

SO ORDERED.19

Flores filed a motion for the reconsideration. As the motion did not contain any notice of
hearing, the Prosecution filed its Motion to Expunge from the Records Accused’s Motion for
Reconsideration."20

In its Resolution, dated November 29, 2007, the Sandiganbayan denied the motion for being
a mere scrap of paper as it did not contain a notice of hearing and disposed as follows:

WHEREFORE, in view of the foregoing, the Motion for Reconsideration of accused Flores is
considered pro forma which did not toll the running of the period to appeal, and thus, the
assailed judgment of this Court has become FINAL and EXECUTORY.

SO ORDERED.21

Hence, Flores filed the present petition before this Court on the ground that the
Sandiganbayan committed reversible errors involving questions of substantive and
procedural laws and jurisprudence. Specifically, Flores raises the following

ISSUES

(I)

WHETHER THE SANDIGANBAYAN, FIRST DIVISION, GRAVELY ERRED IN NOT

GIVING DUE CREDIT TO PETITIONER’S CLAIM OF SELF-DEFENSE

(II)

WHETHER THE SANDIGANBAYAN, FIRST DIVISION, COMMITTED SERIOUS BUT

REVERSIBLE ERRORS IN ARRIVING AT ITS FINDINGS AND CONCLUSIONS

(III)

WHETHER THE SANDIGANBAYAN, FIRST DIVISION, COMMITTED A GRAVE ERROR

IN NOT ACQUITTING PETITIONER OF THE CRIME CHARGED22

The Court will first resolve the procedural issue raised by Flores in this petition.

Flores claims that the outright denial of his motion for reconsideration by the Sandiganbayan
on a mere technicality amounts to a violation of his right to due process. The dismissal
rendered final and executory the assailed decision which was replete with baseless
conjectures and conclusions that were contrary to the evidence on record. He points out that
a relaxation of procedural rules is justified by the merits of this case as the facts, viewed from
the proper and objective perspective, indubitably demonstrate selfdefense on his part.

Flores argues that he fully complied with the requirements of Section 2 of Rule 37 and
Section 4 of Rule 121 of the Rules of Court when the motion itself was served upon the
prosecution and the latter, in fact, admitted receiving a copy. For Flores, such judicial
admission amounts to giving due notice of the motion which is the intent behind the said
rules. He further argues that a hearing on a motion for reconsideration is not necessary as
no further proceeding, such as a hearing, is required under Section 3 of Rule 121.

Flores’ argument fails to persuade this Court.

Section 5, Rule 15 of the Rules of Court reads:

SECTION 5. Notice of hearing. – The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing which must not be later than
ten (10) days after the filing of the motion.

Section 2, Rule 37 provides:

SEC. 2. Contents of motion for new trial or reconsideration and notice thereof. – The motion
shall be made in writing stating the ground or grounds therefore, a written notice of which
shall be served by the movant on the adverse party.

xxxx

A pro forma motion for new trial or reconsideration shall not toll the reglementary period of
appeal.

Section 4, Rule 121 states:

SEC. 4. Form of motion and notice to the prosecutor. – The motion for a new trial or
reconsideration shall be in writing and shall state the grounds on which it is based. X x x.
Notice of the motion for new trial or reconsideration shall be given to the prosecutor.

As correctly stated by the Office of the Special Prosecutor (OSP), Sec. 2 of Rule 37 and Sec.
4 of Rule 121 should be read in conjunction with Sec. 5 of Rule 15 of the Rules of Court.
Basic is the rule that every motion must be set for hearing by the movant except for those
motions which the court may act upon without prejudice to the rights of the adverse
party.23 The notice of hearing must be addressed to all parties and must specify the time and
date of the hearing, with proof of service.

This Court has indeed held, time and again, that under Sections 4 and 5 of Rule 15 of the
Rules of Court, the requirement is mandatory. Failure to comply with the requirement renders
the motion defective. "As a rule, a motion without a notice of hearing is considered pro
forma and does not affect the reglementary period for the appeal or the filing of the requisite
pleading."24

In this case, as Flores committed a procedural lapse in failing to include a notice of hearing,
his motion was a worthless piece of paper with no legal effect whatsoever. Thus, his motion
was properly dismissed by the Sandiganbayan.
Flores invokes the exercise by the Court of its discretionary power to review the factual
findings of the Sandiganbayan. He avers that the ponente as well as the other members of
the First Division who rendered the assailed decision, were not able to observe the
witnesses or their manner of testifying as they were not present during the trial.25 He, thus,
argues that there was palpable misapprehension of the facts that led to wrong conclusions of
law resulting in his unfounded conviction.

His contention is likewise devoid of merit.

"It is often held that the validity of a decision is not necessarily impaired by the fact that
the ponente only took over from a colleague who had earlier presided at the trial, unless
there is a showing of grave abuse of discretion in the factual findings reached by him."26

"Moreover, it should be stressed that the Sandiganbayan, which functions in divisions of

three Justices each, is a collegial body which arrives at its decisions only after deliberation,
the exchange of view and ideas, and the concurrence of the required majority vote."27

In the present case, Flores has not convinced the Court that there was misapprehension or
misinterpretation of the material facts nor was the defense able to adduce evidence to
establish that the factual findings were arrived at with grave abuse of discretion. Thus, the
Court sustains the Sandiganbayan’s conclusion that Flores shot Jesus and continued riddling
his body with bullets even after he was already lying helpless on the ground.

Flores insists that the evidence of this case clearly established all the elements of self-
defense. According to him, there was an unlawful aggression on the part of Jesus. He was
just at the entrance of Jesus’ terrace merely advising him and his guests to reserve their
shooting for the fiesta when Jesus approached him, drew a magnum pistol and fired at him.
The attack by Jesus was sudden, unexpected and instantaneous. The intent to kill was
present because Jesus kept pointing the gun directly at him. As he tried to parry Jesus’
hand, which was holding the gun, the latter kept firing. Left with no choice, he was compelled
to use the baby armalite he was carrying to repel the attack. He asserts that there was lack
of sufficient provocation on his part as he merely requested Jesus and his drinking buddies
to reserve their shooting for the following day as it was already late at night and the
neighbors were already asleep.

In effect, Flores faults the Sandiganbayan in not giving weight to the justifying circumstance
of self-defense interposed by him and in relying on the testimonies of the prosecution
witnesses instead.

His argument deserves scant consideration.

The issue of whether Flores indeed acted in self-defense is basically a question of fact. In
appeals to this Court, only questions of law may be raised and not issues of fact. The factual
findings of the Sandiganbayan are, thus, binding upon this Court.28 This Court, nevertheless,
finds no reason to disturb the finding of the Sandiganbayan that Flores utterly failed to prove
the existence of self-defense.

Generally, "the burden lies upon the prosecution to prove the guilt of the accused beyond
reasonable doubt rather than upon the accused that he was in fact innocent." If the accused,
however, admits killing the victim, but pleads self-defense, the burden of evidence is shifted
to him to prove such defense by clear, satisfactory and convincing evidence that excludes
any vestige of criminal aggression on his part. To escape liability, it now becomes incumbent
upon the accused to prove by clear and convincing evidence all the elements of that
justifying circumstance.29

In this case, Flores does not dispute that he perpetrated the killing of Jesus by shooting him
with an M16 armalite rifle. To justify his shooting of Jesus, he invoked self-defense. By
interposing self-defense, Flores, in effect, admits the authorship of the crime. Thus, it was
incumbent upon him to prove that the killing was legally justified under the circumstances.

To successfully claim self-defense, the accused must satisfactorily prove the concurrence of
the elements of self-defense. Under Article 11 of the Revised Penal Code, any person who
acts in defense of his person or rights does not incur any criminal liability provided that the
following circumstances concur: (1) unlawful aggression; (2) reasonable necessity of the
means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of
the person defending himself.

The most important among all the elements is unlawful aggression. "There can be no self-
defense, whether complete or incomplete, unless the victim had committed unlawful
aggression against the person who resorted to self-defense." "Unlawful aggression is defined
as an actual physical assault, or at least a threat to inflict real imminent injury, upon a
person. In case of threat, it must be offensive and strong, positively showing the wrongful
intent to cause injury. It presupposes actual, sudden, unexpected or imminent danger––not
merely threatening and intimidating action. It is present only when the one attacked faces
real and immediate threat to one’s life." "Aggression, if not continuous, does not constitute
aggression warranting self-defense."

In this case, Flores failed to discharge his burden.

The Court agrees with the Sandiganbayan’s assessment of the credibility of witnesses and
the probative value of evidence on record. As correctly noted by the Sandiganbayan, the
defense evidence, both testimonial and documentary, were crowded with flaws which raised
serious doubt as to its credibility, to wit:

First, the accused claims that Jesus Avenido shot him on his right shoulder with a magnum
handgun from a distance of about one (1) meter. With such a powerful weapon, at such
close range, and without hitting any hard portion of his body, it is quite incredible that the
bullet did not exit through the accused’s shoulder. On the contrary, if he were hit on the part
where the ball and socket were located, as he tried to make it appear later in the trial, it
would be very impossible for the bullet not to have hit any of the bones located in that area of
his shoulder.

Second, Simon Flores executed an affidavit on September 2, 1989. Significantly, he did not
mention anything about a bullet remaining on his shoulder. If indeed a bullet remained
lodged in his shoulder at the time he executed his affidavit, it defies logic why he kept mum
during the preliminary investigation when it was crucial to divulge such fact if only to avoid
the trouble of going through litigation. To wait for trial before finally divulging such a very
material information, as he claimed, simply stretches credulity.

Third, in his feverish effort of gathering evidence to establish medical treatment on his right
shoulder, the accused surprisingly did not bother to secure the x-ray plate or any medical
records from the hospital. Such valuable pieces of evidence would have most likely
supported his case of self-defense, even during the preliminary investigation, if they actually
existed and had he properly presented them. The utter lack of interest of the accused in
retrieving the alleged x-ray plate or any medical record from the hospital militate against the
veracity of his version of the incident.

Fourth, the T-shirt presented by the accused in court had a hole, apparently from a hard
object, such as a bullet, that pierced through the same. However, the blood stain is visibly
concentrated only on the area around the hole forming a circular shape. Within five (5) hours
and a half from 12:00 o’clock midnight when he was allegedly shot, to 5:35 a.m. in the early
morning of August 16, 1989, when his wounds were treated, the blood would naturally have
dripped down to the hem. The blood on the shirt was not even definitively shown to be
human blood.

Fifth, Jesus Avenido arrived at his house and joined his visitors who were drinking only at
11:00 o’clock in the evening. Both parties claim that the shooting incident happened more or
less 12:00 midnight. Hence, it is very possible that Jesus Avenido was not yet drunk when
the incident in question occurred. Defense witnesses themselves noted that the victim Jesus
Avenido was bigger in built and taller than the accused. Moreover, the victim was familiar
and very much experienced with guns, having previously worked as a policeman. In 1âwphi 1

addition, the latter was relatively young, at the age of 41, when the incident happened. The
Court therefore finds it difficult to accept how the victim could miss when he allegedly shot
the accused at such close range if, indeed, he really had a gun and intended to harm the
accused. We find it much less acceptable to believe how the accused allegedly overpowered
the victim so easily and wrestled the gun from the latter, despite allegedly having been hit
earlier on his right shoulder.

Finally, it hardly inspires belief for the accused to have allegedly unlocked, with such ease,
the armalite rifle (M16) he held with one hand, over which he claims to have no experience
handling, while his right shoulder was wounded and he was grappling with the
victim.33 (Underscoring supplied citations omitted)

The foregoing circumstances indeed tainted Flores’ credibility and reliability, his story being
contrary to ordinary human experience. "Settled is the rule that testimonial evidence to be
believed must not only proceed from the mouth of a credible witness but must foremost be
credible in itself. Hence, the test to determine the value or credibility of the testimony of a
witness is whether the same is in conformity with common knowledge and is consistent with
the experience of mankind."34

The Court also sustains the finding that the testimony of Dr. Bagamasbad, adduced to prove
that Flores was shot by Jesus, has no probative weight for being hearsay. As correctly found
by the Sandiganbayan:

The testimony of defense witness Dr. Bagamasbad, cannot be of any help either since the
same is in the nature of hearsay evidence. Dr. Bagamasbad’s testimony was a mere re-
statement of what appeared as entries in the hospital logbook (EXH. "8-a"), over which he
admitted to possess no personal knowledge. The photocopy of the logbook itself does not
possess any evidentiary value since it was not established by the defense that such
evidence falls under any of the exceptions enumerated in Section 3, Rule 130, which pertain
to the rules on the admissibility of evidence.35 x x x

Granting for the sake of argument that unlawful aggression was initially staged by Jesus, the
same ceased to exist when Jesus was first shot on the shoulder and fell to the ground. At
that point, the perceived threat to Flores’ life was no longer attendant. The latter had no
reason to pump more bullets on Jesus’ abdomen and buttocks.
Indeed, the nature and number of the gunshot wounds inflicted upon Jesus further negate
the claim of self-defense by the accused. Records show that Jesus suffered four (4) gunshot
wounds in the different parts of his body, specifically: on the medial portion of the left
shoulder, between the clavicle and the first rib; on the left hypogastric region through the
upper right quadrant of the abdomen; on the tip of the left buttocks to the tip of the sacral
bone or hip bone; and on the right flank towards the umbilicus. According to Dr. Ruben
Escueta, who performed the autopsy on the victim, the latter died of massive intra-abdominal
hemorrhage due to laceration of the liver.36 If there was any truth to Flores’ claim that he
merely acted in self-defense, his first shot on Jesus’ shoulder, which already caused the
latter to fall on the ground, would have been sufficient to repel the attack allegedly initiated
by the latter. But Flores continued shooting Jesus. Considering the number of gunshot
wounds sustained by the victim, the Court finds it difficult to believe that Flores acted to
defend himself to preserve his own life. "It has been held in this regard that the location and
presence of several wounds on the body of the victim provide physical evidence that
eloquently refutes allegations of self-defense."37

"When unlawful aggression ceases, the defender no longer has any justification to kill or
wound the original aggressor. The assailant is no longer acting in self-defense but in
retaliation against the original aggressor."38Retaliation is not the same as self-defense. In
retaliation, the aggression that was begun by the injured party already ceased when the
accused attacked him, while in self-defense the aggression still existed when the aggressor
was injured by the accused.39

The Court quotes with approval the following findings of the Sandiganbayan, thus:

x x x. The difference in the location of the entry and exit points of this bullet wound was about
two to three inches. From the entry point of the bullet, the shooting could not have taken
place when accused and his victim were standing and facing each other. Another bullet
entered through the medial portion of the victim's buttocks and exited through his abdominal
cavity. A third bullet entered through the left hypogastric region and exited at the upper right
quadrant of the victim's abdomen. The respective trajectory of these wounds are consistent
with the testimony of prosecution witnesses Elisa B. Avenido and Arvin B. Aveniclo that the
accused shot Jesus Avenido while the latter was already lying on the ground. Moreover,
according to Arvin Avenido, the first shot hit his father on the right shoulder making him fall to
the ground. Hence, even on the assumption that unlawful aggression initially existed, the
same had effectively ceased after the victim was first shot and fell to the ground. There was
no more reason for the accused to pull the trigger, at least three times more, and continue
shooting at the victim.40 (Emphasis in the original)

The means employed by a person claiming self-defense must be commensurate to the

nature and the extent of the attack sought to be averted, and must be rationally necessary to
prevent or repel an unlawful aggression.41 In this case, the continuous shooting by Flores
which caused the fatal gunshot wounds were not necessary and reasonable to prevent the
claimed unlawful aggression from Jesus as the latter was already lying flat on the ground
after he was first shot on the shoulder.

In fine, the Sandiganbayan committed no reversible error in finding accused Flores guilty
beyond reasonable doubt of the crime of homicide.

WHEREFORE, the petition is DENIED.

SO ORDERED.
[G.R. No. 109614-15. March 29, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADRONICO GREGORIO and

RICARDO GREGORIO, defendants-appellants.

DECISION

KAPUNAN, J.:

The instant appeal seeks the reversal of the joint decision of

the Regional Trial Court of Bacolod City, Branch 43, rendered on April 20, 1992, in Criminal
Cases Nos. 428 and 6307 finding both appellants guilty beyond reasonable doubt of the
crime of murder.

The facts of the case as established by the evidence for the prosecution are faithfully
summarized in the People’s brief, to wit:

Around 8:00 oclock in the evening of May 7, 1986, Carlos Catorse together with his fifteen
year old son Romeo Catorse arrived at the house (the house is composed of two storeys) of
appellant Adronico Gregorio at Sitio Bug-as, Barangay Sta. Cruz, Murcia, Negros Occidental,
to attend the wake of the latters grandson (TSN March 24, 1987, pp. 3-4).

When Carlos and his son arrived, there were already people attending the wake. Jovito
Nicavera, Marcelo Lo and Adronico were conversing downstairs while upstairs, some were
playing pusoy (russian poker), among them were Jerry Nicavera, Renato Calabas, Tunggak,
(son of Adronico) and Ricardo Gregorio (brother and co-appellant of Adronico). Kibitzing and
at times betting in the game were John Villarosa, Remolito Calabas, Carmelo Alubaga and
Crispin Calalas (I.D., pp. 5; TSN, May 30, 1989, pp. 12-13).

Persons attending the wake were requested by appellant Adronico to deposit with him any
weapon in their possession for safekeeping so as to avoid trouble. Complying therewith,
Carlos Catorse handed over his samurai, John Villarosa and Remolito Calalas, their
respective knives, to Adronico (TSN, May 30, 1989, pp. 16-19; TSN, November 14, 1989, pp.
22-23).

Around 1:00 oclock in the morning of May 8, 1986, while the game of pusoy was still in
progress, appellant Ricardo, in a very loud voice, reprimanded Tunggak from (sic) peeping at
the cards of other players. In response, Tunggak stood up and also in a very loud voice
ordered the game stopped (TSN, May 30, 1989, pp. 25-27; TSN, November 14, 1987,
pp. 45-50).

Overhearing the incident, Adronico ordered Tunggak downstairs and right there and then
Adronico scolded and boxed him (Tunggak) several times (TSN, May 30, 1989, pp. 27-30;
TSN, November 14, 1989, pp. 51-55).

While Adronico was severely beating Tunggak, Carlos Catorse approached and begged
Adronico from further hurting his son so as not to put him to shame before the crowd. Carlos
was in this act of pacifying the matter between the father and son when suddenly appellant
Ricardo stealthily stabbed Carlos from behind with a samurai (the same samurai deposited
by Carlos to Adronico) and thereafter hacked and stabbed him several times more in
different parts of his body: Right after Carlos fell to the ground, Adronico, for his part,
repeatedly hacked the victim with a bolo. (TSN, May 30, 1989, pp. 30-31; November 14,
1989, pp. 57-65).

Terrified, Romeo Catorse, son of Carlos Catorse, ran out of the house. Jovito Nicavera also
tried to get out of the house but Adronico hacked him instead with a bolo hitting his left
shoulder. Marcelo Lo tried to help his uncle Jovito but Ricardo, with the same samurai used
against Carlos hacked him on his forearm. Adronico immediately followed and using a bolo
hacked Marcelo on the nape. Although wounded, Marcelo was able to run out of the house
but Adronico ran after and overtook him. Adronico then hacked him again. When Ricardo
followed the two, the visitors attending the wake scampered out of the house (TSN, May 30,
1989, pp. 44-56; TSN, November 14, 1989, pp. 66-77).

Later, Romeo Catorse together with his sister and younger brother returned to the house of
Adronico where they found their father lying prostrate and dead. Nobody was around. Later
on, the family of Jovito Nicavera arrived and brought the latter to a hospital in Bacolod (TSN,
March 24, 1987, pp. 8-10).

Around 9:00 oclock of the same morning of May 8, 1987, police authorities arrived at
Adronicos place to investigate the killing incident. The bodies of Carlos Catorse and Marcelo
Lo were found inside the house and at the yard of Adronico, respectively (TSN, November
14, 1989, pp. 76-78). The investigation revealed that appellants Adronico and Ricardo fled to
Sitio Anangge, Barangay Buenavista, Murcia, Negros Occidental, about 4 kilometers away
from the situs of the crime. The authorities pursued and succeeded in apprehending the
appellants. Appellants were thereafter brought and investigated at Murcia Police
Headquarters (TSN, April 5, 1991, pp. 9-10).

The post-mortem examination on the cadaver of the victims reveals that Carlos Catorse
sustained twelve hack and four stab wounds while Marcelo Lo sustained six hack
wounds. Both victims died of cardio respiratory arrest due to multiple wounds (Exhibits A, B,
C & D).[1]

Accordingly, an information for the murder of Carlos Catorse was filed against Adronico
Gregorio and Ricardo Gregorio before the Regional Trial Court of Negros Occidental, Branch
LXII, Bago City. The indictment, docketed as Criminal Case No. 428, reads:

That on or about the 8th day of May 1986, in the Municipality of Murcia, Province of Negros
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, armed with a samurai and a bolo, conspiring, confederating and mutually helping
each other, with evident premeditation and treachery, and with intent to kill, did then and
there, willfully, unlawfully and feloniously attack, assault, stab and hack one, CARLOS
CATORSE y APELYEDO, thereby inflicting multiple stab and hack wounds upon the body of
the latter, which caused the death of said victim.

CONTRARY TO LAW.[2]

Upon arraignment, both accused entered separate pleas of not guilty.[3]

Another information for the murder of Marcelo Lo was instituted against Adronico Gregorio,
this time, before the Regional Trial Court of Negros Occidental, Branch
43, Bacolod City. Docketed as Criminal Case No. 6307, the accusatory portion of the
information reads:
That on or about the 8th day of May, 1986, in the Municipality of Murcia, Province of Negros
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, armed with a bladed weapon, with intent to kill, with evident premeditation and
treachery, did then and there, willfully, unlawfully and feloniously attack, assault and hack
one MARCELO LO Y NICA VERA, thereby inflicting multiple injuries upon the body of the
latter which caused the death of the said victim.

CONTRARY TO LAW.[4]

On arraignment, Adronico Gregorio entered a plea of not guilty to the offense charged.[5]

Later, the two cases were consolidated and tried jointly by the Regional Trial Court of Negros
Occidental, Bacolod City, Branch 43.

On April 20, 1992 as aforestated, the trial court rendered a joint decision, the dispositive
portion of which reads:

WHEREFORE, premises considered, the Court finds and so holds the two (2) accused
Adronico Gregorio and Ricardo Gregorio GUILTY beyond reasonable doubt as principals of
having committed the crime of Murder in Crim. Case No. 428 and hereby sentences each to
life imprisonment and to solidarily indemnify the heirs of Carlos Catorse the sum of THIRTY
THOUSAND (P30,000.00) PESOS with no subsidiary imprisonment in case of insolvency.

In Crim. Case No. 6307 (2292) (sic) the Court finds the same Adronico Gregorio GUILTY
beyond reasonable doubt of having committed Murder and hereby sentences him to another
life imprisonment and to indemnify the heirs of Marcelo Lo the sum of THIRTY THOUSAND
(P30,000.00) PESOS with no subsidiary imprisonment in case of insolvency.

Further, the two (2) accused shall be credited with the full term of their preventive
confinement.

No cost.

SO ORDERED.[6]

Hence, this appeal.

In their brief, appellants raised the following errors, to wit:

THE TRIAL COURT GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE
THEORY OF THE PROSECUTION AND IN DISREGARDING THAT OF THE DEFENSE.

II

THE TRIAL COURT GRAVELY ERRED IN REJECTING APPELLANTS DEFENSE OF

SELF-DEFENSE.

III
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE EXIST CONSPIRACY
AND TREACHERY IN THE CASE AT BAR.

IV

THE TRIAL COURT GRAVELY ERRED IN FINDING BOTH THE ACCUSED GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.[7]

However, before the Office of the Solicitor General could file its Appellees Brief, appellant
Ricardo Gregorio died on December 12, 1993. Consequently, his criminal liability as well as
his civil liability based solely thereon is extinguished.[8] Evidently, this appeal will proceed
only with respect to appellant Adronico Gregorio.

After a careful perusal and evaluation of the case, this court is not inclined to disturb the
findings and conclusion of the court below, there being no cogent reason therefor. For, aside
from the well-settled rule that the factual findings of the trial judge who had the opportunity to
observe the demeanor of the witnesses and assess their credibility is entitled to the highest
degree of respect,[9] there appears to be no strong reason to depart from the said doctrine
since the decision is fully supported by the evidence on record.

Appellant Adronico Gregorio interposed self-defense to exculpate himself from criminal

liability. However, the trial court, skeptic of the said plea, rejected the same, reasoning that
appellant failed to establish self-defense by clear and convincing evidence. We agree. In
numerous cases decided by this Court, the guiding jurisprudential principle has always been
that when an accused invokes the justifying circumstance of self-defense, the burden of
proof is shifted to him to prove the elements of that claim; otherwise, having admitted the
killing, conviction is inescapable.[10] Concomitantly, he must rely on the strength of his own
evidence and not on the weakness of the prosecution.[11] Having admitted the killing,
appellant has to justify his taking of a life by the exacting standards of the law.

It is axiomatic that for self-defense to prosper, the following requisites must concur: (1) there
must be unlawful aggression by the victim; (2) that the means employed to prevent or repel
such aggression were reasonable; and (3) that there was lack of sufficient provocation on the
part of the person defending himself.[12]

In the case at bench, appellants claim of self-defense must fail. For one, the physical
evidence tells us a different story. Dr. Emmanuel Boado, the medico-legal officer who
conducted the autopsy on the cadavers of Carlos Catorse and Marcelo Lo, submitted the
following post-mortem reports and attested to the veracity and authenticity of the same, thus:

Cadaver of Carlos Catorse:

EXTERNAL FINDINGS:

1. Hack wound 5 inches bong, left temporal going backward with chip fractured (sic) of the
skull.

2. Hack wound 8 inches long, from the base of the left Nose, going backward below the left
ear.
3. Hack wound 7 inches long, neck left side going backward with complete chip fractured
(sic) of the fourth vertebrae cutting blood vessels.

4. Stab wound 2 inches wide, 4 inches deep anterior abdomen, below the 10th rib, left side.

5. Stab wound 1 1/2 inches wide, 4 inches deep at the side of the navel left.

6. Hack wound, base of the palm, 3 inches bong posterior side, cutting bones.

7. Hack wound, cutting left small finger.

8. Hack wound, 3 inches bong upper 3rd right forearm running anteroposteriorly, chip
fracture of bones.

9. Hack wound left shoulder back 4 inches bong going downward with chip fracture of the
shoulder joint.

10. Hack wound 5 inches long posteriorly left joint with chip fracture of the bones.

11. Hack wound 3 inches long posteriorly forearm below the elbow joint chip fracture of the
bones.

12. Hack wound 3 inches long middle 3rd forearm, posterior surface, with chip fracture of the
bones.

13. Stab wound 4 inches wide left back level of the 11th embracio rib, back side through and
through of the level of 12th rib right.

14. Hack wound 2 1/2 inches bong with chip fracture of the 11th lobar vertebrae.

15. Hack wound middle right arm posterior side 4 inches long with chip fracture of bone.

16. Stab wound 1 inch wide hitting the vertebral bones, 5th thoracic vertebrae.

INTERNAL FINDINGS:

1. Stab wound, liver, large intestine, small intestine

2. Massive abdominal bleeding.

CAUSE OF DEATH:

Cardio Respiratory Arrest due to Multiple hack and Stab wounds.[13]

Cadaver of Marcelo Lo:

EXTERNAL FINDINGS:

1. Hack wound 6 inches long left temporal area going occiput, chip fracture skull.
2. Hack wound, left face going back ward base of the skull, brain tissue coming out, with chip
fracture of the skull.

3. Hack wound, right 4 inches long right back cutting the scapular bones.

4. Hack wound 6 inches long, with chip fracture of the Vertebrae bones.

5. Hack wound 4 inches long cutting the 1st thoracic rib; scapular bones.

6. Hack wound 4 inches long, below the left scapular bones, cutting ribs.

INTERNAL FINDINGS:

1. Cerebral Hemorrhage, Massive

2. Thoracic Hemorrhage, Massive

CAUSE OF DEATH:

Cardio Respiratory Arrest due to multiple hack wounds.[14]

If Adronico Gregorio and Ricardo Gregorio stabbed Carlos Catorse and Marcelo Lo merely to
defend themselves, it certainly defies reason why they had to inflict sixteen stab wounds on
Carlos and six on Marcelo. The location, number and gravity of the wounds inflicted on the
victims belie the appellants contention that they acted in self-defense.[15]The rube is settled
that the nature and extent of the wounds inflicted on a victim negate an accuseds claim of
self-defense.[16]

The futility of invoking self-defense is likewise revealed in the testimonies of accused Ricardo
Gregorio and appellant Adronico Gregorio. Ricardo Gregorio testified that at around 9:00
oclock in the evening of May 7, 1986, Carlos Catorse suddenly kicked, from the outside, the
front door of the house of Adronico, then ran towards Eduardo (nephew of Ricardo) and
boxed the latter; that he intervened to pacify Carlos but the latter drew his samurai and
attempted to attack him and Eduardo; that he grappled for possession of the samurai and
was able to turn its point back to Carlos who was hit in the stomach and then fell on the
ground; and thereafter he left the victim, then went home.[17]

On his part, appellant Adronico Gregorio declared that at the same time his son, Eduardo,
and brother, Ricardo, were being attacked by Carlos, he was in the kitchen preparing food
for the people attending the wake of his grandson; that suddenly Marcelo Lo and Jovito
Nicavera destroyed the bamboo walls of his kitchen, entered threat and assaulted him; that
Marcelo attacked him with a bob but he was able to parry the latters hand and the bolo
instead landed and struck the wooden rail of the kitchen sink; that Jovito in turn pointed a
gun at him but without wasting time, he dislodged the bolo from the wooden rail of the sink
and slashed Jovitos hand; that because of the injury sustained, Jovito dropped the gun and
ran out of the house; that he turned to Marcelo and struck him with a bolo until the latter fell
outside of the kitchen; and that he never knew what happened next to Marcelo until the
following morning when he learned that the latter died.[18]

Not only are the foregoing declarations incredible and incredulous but are innately false and
fatuous.
By making said allegations, appellant and deceased accused would want to impress upon
this Court that both were able to inflict only a single stab wound on deceased Carlos Catorse
and Marcelo Lo. Curiously, however, none of their empty claims could explain the physical
evidence and findings of the autopsy reports that Carlos Catorse sustained a total of 16 hack
and stab wounds while Marcelo Lo, 6 mortal hack wounds.[19] Moreover, the prosecution
witnesses were unanimous in their declaration that it was the appellant and his brother
Ricardo who started the skirmish. There was no unlawful aggression on the part of Carlos
Catorse who only wanted to help pacify Adronico nor on Marcelo Los part, who was only
trying to flee from the melee when he was attacked and hacked to death. Likewise extant
from the records is the absence of any act on the part of the victims giving sufficient
provocation for the attack.

Likewise telling is the fact that appellant and his brother fled from their homes soon after the
incident instead of reporting the matter to the police. Their flight negates self-defense and
indicates guilt.[20] As we have repeatedly held, flight evidences guilt and a guilty conscience;
the same strongly indicates a guilty mind and betrays the existence of a guilty conscience.[21]

Appellant also challenges the court a quos finding that there was conspiracy between him
and his brother Ricardo. Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.[22] However, direct proof is
not essential to prove conspiracy,[23] as it may be deduced from the mode and manner in
which the offense was perpetrated, or inferred from the acts of the accused.[24] Where the
acts of the accused collectively and individually demonstrate the existence of a common
design towards the accomplishment of the same unlawful purpose, conspiracy is evident,
and regardless of the fact, the perpetrators will be liable as principals.[25]

In the case at bench, although there is no proof as to a previous agreement by the assailants
to commit the crime charged, conspiracy is evident from the manner of its
perpetration.[26] After Ricardo lunged at Carlos with a samurai from behind several times,
Adronico attacked him in turn with a bolo. Likewise, appellants successively hacked Marcelo
using the weapons they used against Carlos. The incident happened in split seconds, so to
speak. Under the circumstances, it is evident that Adronico and Ricardo acted in unison and
cooperated with each other towards the accomplishment of a common felonious objective.
In People v. Regalario[27] cited in People v. Lopez,[28] we held:

An indicium of conspiracy is when the acts of the accused are aimed at the same object, one
performing one part and another performing another part so as to complete it with a view to
the attainment of the same object, and their acts though apparently independent were in fact
concerted and cooperative, indicating closeness of personal association, concerted action
and concurrence of sentiments. The evidence need not establish the actual agreement which
shows the pre-conceived plan, motive, interest, or purpose in the commission of the crime;
conspiracy is shown by the coordinated acts of the assailants.[29]

Certainly, there was conspiracy between the brothers Adronico and Ricardo, and it was not
necessary to prove a previous agreement to commit the crime since from their overt acts, it
was clear that they acted in concert in the pursuit of their unlawful design or common goal
which was to kill the victims.[30]

We agree with the trial court that the aggravating circumstance of treachery (alevosia) may
be appreciated against the appellants. Treachery exists when an offender commits any of
the crimes against persons, employing means, methods or forms in the execution thereof
which tend to directly and specially insure its execution, without risk to himself arising from
the defense which the offended party might make.[31] In this case, it was clearly established
that Ricardo stealthily stabbed Carlos from behind, and repeatedly hacked him in different
parts of his body, with a samurai. As Carlos fell to the ground, Adronico followed suit,
repeatedly hacking the victim with a bolo. Though the assault upon Marcelo was preceded
by appellants assault upon Carlos and Jovito, the incident happened in a span of seconds
only. Terrified by what he witnessed, Jovito Nicavera tried to run out of the house but
Adronico hacked him instead. Instinctively, Marcelo Lo came to help his uncle Jovito but
Ricardo followed by Adronico hacked him using the same samurai and bob they used
against Carlos. Defenseless and severely wounded Marcelo tried to run but Adronico
finished him off by more mortal hacks. From all indications, the mode of attack adopted by
the appellant and his brother qualifies the killing to murder as the same rendered the victims
who were unarmed at that time defenseless and helpless, without any opportunity to defend
themselves from their assailants unreasonable and unexpected assault. The attack was
sudden and was specially employed by the assailants to insure the execution of the said
crime without risk to themselves arising from the defense which the victims might make.

Indeed, the use against Carlos Catorse and Marcelo Lo of the samurai and bolo, both deadly
weapons, the traitorous manner in which they were assaulted, and the number of wounds
inflicted on them, all demonstrate a deliberate, determined assault with intent to
kill. Appellant is guilty of murder.

Some last notes. The fallo of the assailed decision sentences the appellant to suffer the
penalty of life imprisonment and to indemnify the heirs of Carlos Catorse and Marcelo Lo the
sum of P30.000.00 each. The correct penalty, however, should be reclusion perpetua in
accordance with Article 248 of the Revised Penal Code. As we have held time and again, life
imprisonment and reclusion perpetua are different and distinct from each other. In People v.
Ruelan,[32] we outlined the distinction thusly:

As noted from the dispositive portion of the assailed decision, the trial court imposed the
penalty of life imprisonment for the crime of murder. Evidently, the said court failed to
appreciate the substantial difference between Reclusion Perpetua under the Revised Penal
Code and Life Imprisonment when imposed as a penalty by special law. These two penalties
are different and distinct from each other. Hence, we would like to reiterate our admonition in
the case of People v. Penillos, likewise quoted under Administrative Circular No. 6-A-92
amending Administrative Circular No. 6-92 dated October 12, 1992 re: the correct application
of the penalties of reclusion perpetua and life imprisonment, thus:

As noted from the dispositive portion of the challenged decision, the trial court imposed the
penalty of reclusion perpetua or life imprisonment. Evidently, it considered the batter as the
English translation of the former, which is not the case. Both are different and distinct
penalties. In the recent case of People v. Baguio, this Court held:

The Code does not prescribe the penalty of life imprisonment for any of the felonies therein
defined, that penalty being invariably imposed for serious offenses penalized not by the
Revised Penal Code but by special laws. Reclusion perpetua entails imprisonment for at
least thirty (30) years after which the convict becomes eligible for pardon, it also carries with
it accessory penalties, namely: perpetual special disqualification, etc. It is not the same as
life imprisonment which, for one thing, does not carry with it any accessory penalty, and for
another, does not appear to have any definite extent or duration.

As early as 1948, in People vs. Mobe, reiterated in People vs. Pilones, and in the concurring
opinion of Justice Ramon Aquino in People vs. Sumadic, this Court already made it clear
that reclusion perpetua, is not the same as imprisonment for life or life imprisonment. Every
judge should take note of the distinction and this Court expects that, henceforth, no trial
judge should mistake one for the other.[33]

Finally, conformably with the stated policy of this Court and pursuant to People v.
Sison,[34] the civil indemnity for the death of a victim is increased to P50,000.00.
Consequently, the heirs of Carlos Catorse and Marcelo Lo are entitled to P50,000.00 each.

WHEREFORE, except for the modification that appellant Adronico Gregorio is to suffer the
penalty of reclusion perpetua and to indemnify the heirs of Carlos Catorse and Marcelo Lo
the sum of P50,000.00 each, the judgment appealed from is hereby AFFIRMED in all
respects. As aforestated, the death of Ricardo Gregorio extinguished both his criminal and
civil liability arising from said crime.

SO ORDERED.