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[G.R. No. 128966.

August 18, 1999]

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 th.
Later at around 10:30 am, Kenneth 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 9th).
During the night, an inmate named 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 9th), Edwin was taken out of the cell 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 APPELLANTS 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.

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(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.
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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.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.
Vitug, J., Please see separate opinion.

SEPARATE OPINION

VITUG, J.:

I share the ponencia of my colleagues in its affirmance of the conviction of appellants except, with all due respect,
insofar as it has concluded that appellant De Vera is guilty merely as an accomplice.
There is conspiracy under Article 8 of the Revised penal Code when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Conspiracy of, course, by itself is legally inconsequential
unless the criminal plot is, in fact, carried out. Once the offense is perpetrated, the responsibility of the conspirators is
collective, not individual, that render, all of them equally liable regardless of the extent of their respective participations,
the act of one being deemed to be the act of the other or the others, in the commission of the felony. An accomplice, under
Article 18 of the same Code, is one who, not being a principal who (a) takes a direct part in the execution of the act, (b)
directly forces or induces others to commit, (c) cooperates in the commission of the offense by another act without which
the offense would not have been accomplished (per Article 17 of the Code), collaborates in the execution of the offense by
previous or simultaneous acts.
In the case at bar, De Vera, 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 (ponencia).
I cannot bring myself to accept any material variance between the terms to decide, on the one hand, and to concur or
to assent, on the other hand, in defining, i.e., whether as a conspirator or as an accomplice, the specific criminal liability of
the criminal offender. Where there is concurrence or assent by one to a plan, even when previously hatched by another or
others, to commit a felony which concurrence or assent is made prior to the actual perpetration of the offense, and he then
actually participates in its commission, regardless of the extent of such participation, his liability should be deemed, in my
view, that of a conspirator rather than that of an accomplice. I would equate the liability of an accomplice to one who,
knowing of the criminal design, but neither concurring nor assenting to it, cooperates in the execution of the crime short
of taking a direct part in, and short of taking an indispensable act for, the commission of the offense. In the last two
instances (taking a direct part in, or taking an indispensable act for, the commission of the felony), his participation would
be that of a principal under Article 17 of the Revised Penal Code.
When appellant De Vera, aware of the plan to kill the victim, agreed to be lookout during the commission of the
crime which, in fact, so took place as planned, he rendered himself liable no less than that incurred by his co-accused.
G.R. No. 208170 August 20, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
PETRUS YAU a.k.a. "John" and "Ricky" and SUSANA YAU y SUMOGBA a.k.a. "Susan", Accused-Appellants.

DECISION

MENDOZA, J.:

This is an appeal from the September 7, 2012 Decision1 of the Court of Appeals (CA), in CA-G.R. CR-I-IC No. 03446,
which affirmed the December 14, 2007 Decision2 of the Regional Trial Court, Branch 214, Mandaluyong City (RTC). in
Criminal Case No. MC-04-7923. The RTC found accused-appellant Petrus Yau (Petrus) guilty beyond reasonable doubt
as principal of the crime of kidnapping for ransom and serious illegal detention, as defined and penalized in Article 267 of
the Revised Penal Code (RPC), as amended by Republic Act No. 7659, (R.A. No. 7659), and convicted accused-appellant
Susana Yau y Sumogba (Susana)as an accomplice to the commission of the same crime.

The Facts

Petrus and Susana were charged with the crime of Kidnapping For Ransom in the Information,3 dated February 13, 2004,
the accusatory portion of which reads:

That on or about January 20, 2004, at around 2:00 P.M. in the vicinity of Shoemart Mega Mall, Mandaluyong City, the
abovenamed accused, conspiring, confederating and mutually helping one another, with the use of a sleeping substance,
did then and there, willfully, unlawfully and feloniously kidnap and take away ALASTAIR JOSEPH ONGLINGSWAM
inthe following manner, to wit: while said ALASTAIR JOSEPH ONGLINGSWAM was on board a white Toyota taxi cab
with plate number PVD-115 being driven by the above-named accused Petrus Yau a.k.a. "John" and "Ricky" and the taxi
cab was travelling along Epifanio Delos Santos (EDSA) Avenue, he suddenly fell unconscious and upon regaining
consciousness he was already handcuffed and in chains inside a house located at B23, L2, Ponsettia St., Camilla Sorrento
Homes, Panapaan IV, Bacoor, Cavite, where he was kept for twenty two (22) days, which house is owned by accused
Susana Yau y Sumogba and while therein he was maltreated; that ransom in the amount of SIX HUNDRED THOUSAND
DOLLARS (US$600,000.00) and TWENTY THOUSAND PESOS (Php20,000.00) for each day of detention was
demanded in exchangefor his safe release until he was finally rescued on February 11,2004, by PACER operatives of the
Philippine National Police.

CONTRARY TO LAW.

Version of the Prosecution

In the Appellee’s Brief,4 the Office of the Solicitor General (OSG) presented the following narration of the kidnapping:

On January 20, 2004, at around 1:30 in the afternoon, private complainant Alastair Onglingswam, who is a practicing
lawyer and businessman from the United States, went out of Makati Shangrila Hotel, where he was billeted, and hailed a
white Toyota taxi cab with plate number PVD-115 to take him from the said hotel to Virra Mall Shopping Center in San
Juan, Metro Manila. While the said taxicab was plying along EDSA, and within the vicinity of SM Megamall, private
complainant received a phone call from his associate Kelly Wei in Hong Kong. He noted that while he was on the phone
conversing with his associate, appellant Petrus Yau, whom he noted to have short black hair, a moustache and gold
framed eyeglasses, would from time to time turn to him and talk as if he was also being spoken to. Thereafter, he felt
groggy and decided to hang-up his phone. He no longer knew what transpired except that when he woke up lying down,
his head was already covered with a plastic bag and he was handcuffed and chained.

When private complainant complained that the handcuffs were too tight, a man who was wearing a red mask and
introduced himself as "John" approached him and removed the plastic bag from his head and loosened his handcuff. John
informed him that he was being kidnapped for ransom and that he will be allowed to make phone calls to his family and
friends. Hours later, John returned with telephony equipment, tape recorder, phone and a special antennae cap for the
cellphone. With these equipment, private complainant was allowed to call his girlfriend and father and asked them for the
PIN of his ATM cards and for money, however, with instructions not to inform them that he was kidnapped. A day after,
he was told by his captor to call his girlfriend and father to tell them thathe was still alive as well as to reveal to them that
he was kidnapped for ransom and his kidnappers were demanding Six Hundred Thousand Dollars (US$600,000.00) as
ransom and Twenty Thousand Pesos (Php20,000.00) a day as room and board fee.

The private complainant’s family, girlfriend (Iris Chau) and friends received a text message purportedly from the former
informing them that he was kidnapped and ransom for his liberty was demanded.

On January 21, 2004, the family of the victim informed the United States Embassy in Manila about the situation and a
meeting with the representatives of the Philippine National Police was arranged.

Subsequently, Chau received an email from the purported kidnapper demanding US$2,000.00. Chau then wired
US$1,000.00, upon instructions, to Ong Kwai Ping thru Metro Bank and Trust Company. Likewise, private complainant’s
brother Aaron Onglingswam made eight (8) deposits to Ong Kwai Ping’s account in Metro Bank, amounting to Two
Hundred Thousand Pesos (Php200,000.00), to ensure his brother’s safety and eventual release.

During private complainant’s twenty-two (22) days of captivity, while he was allowed to communicate with his family
almost daily to prove that he was still alive and was served with meals almost five times a day either by John or the other
accused Susan Yau, he was also maltreated i.e. beaten with sticks, made to lay-down biting a piece of wood which was
made as target for a rifle.

On February 10, 2004, the PACER received information that a taxi with plate number PVD 115 plying along Bacoor was
victimizing passengers. Upon instructions of P/Supt. Isagani Nerez, members of the Police Anti-Crimeand Emergency
Response Task Force (PACER) were ordered to proceed to Bacoor, Cavite to look for Toyota Corolla White Taxicab with
Plate No. PVD 115. On February 11, 2004, at around 4:00 o’clock in the morning, the PACER group proceeded to Bacoor
and positioned themselves along Aguinaldo Highway under the overpass fronting SM Bacoor. Not having caught sight of
the taxi, after three hours, the group moved to a different location along the Aguinaldo Highway where they were able to
chance upon the said vehicle. Thus, they followed it, then flagged it down and approached the driver. The driver was
asked to scroll down his window and was told that the vehicle was being used to victimize foreign nationals. Appellant
did not offer to make any comment. Hence, this prompted the officers to ask for his name and since he answered that he
was Petrus Yau, a British national, they asked him for his driver’s license and car registration but appellant was not able to
produce any. Since he could not produce any driver’s license and car registration, they were supposed to bring him to the
police station for investigation, however, when shown a picture of private complainant and asked if he knew him, he
answered that the man is being kept in his house. He was immediately informed that he was being placed under arrest for
kidnapping private complainant Alastair Onglingswam after being informed of his constitutional rights. Thereafter,
appellant’s cellphones, a QTEK Palmtop and Sony Erickson were confiscated. Upon instructions of P/Supt. Nerez,
[appellant] was brought to the parking lot of SM City Bacoor for a possible rescue operations of the victim.

Appellant led the team to his house and after opening the gate of his residence, hewas led back to the police car. The rest
of the members of PACER proceeded inside the house and found a man sitting on the floor chained and handcuffed. The
man later identified himself as Alastair Onglingswam.

During the trial of the case, private complainant positively identified Petrus Yau as his captor and the taxi driver. Test
conducted by the United States Federal Bureau of Investigation reveals that the DNA found in the mask used by private
complainant’s captor matched that of appellant Petrus Yau.5

Version of the Defense

Petrus and Susana denied the accusation, and stated the following in their Brief6 to substantiate their claim of innocence:

Accused Petrus Yau denied having committed the crime. He averred that the supposed kidnap victim coordinated with the
police to set up the subject case against him and his family. He is a British national. He had been in the Philippines for
many times since he was 14 years old. He came to the country in July 2001 for a vacation and had not left since then. On
September 2001, he got married to Susana Yau. Prior thereto, he was in Singapore running some businesses. On January
20, 2004, at around 2:00 o’clock in the afternoon (the date and time the victim was kidnapped), Petrus Yau was at home
sleeping.

On February 11, 2004 (the date the victim was allegedly rescued) at around 8:30 – 9:00 o’clock in the morning, he went to
his wife Susana in her shop and got money to be deposited to the Asia Trust Bank. He parked his car outside the bank.
After he alighted from his car, three (3) men bigger than him held his hands: one (1) of them held his neck. They pushed
him inside their van. They tied his hands with packing tape, covered his eyes with the same tape, and his head with a
plastic bag. They kicked and beat him until he became unconscious.

When he regained consciousness, he was inside an airconditioned room. His hands were handcuffed and he felt very cold
because his body was wet. His head was still being covered. He shouted asking where he was. People came in and he
heard them talking in Tagalog. They kicked him for about twenty (20) seconds. Later, he was made to sit, as he was lying
on the floor. He said that he could not see anything, thus, someone removed the cover of his head. They accused him of
being a kidnapper, to which he replied that he was not. He pleaded to them to allow him to make a call to the British
Embassy, his friends and his wife, but to no avail.

When he was taken into custody, he had his wedding ring, watch and a waist bag containing his British passport, alien
certificate, driver’s license, Asia Trust bankbook in the name of Susana Yau, ATM Cards (in his name) of Metrobank,
PCI Equitable Bank and Banco de Oro, VISA Card, and some cash given to him by his wife . He lost those personal
properties.

After four (4) to five (5) hours, he was transferred to another room without a window. The following day, he was brought
to and detained at the PACER Custodial Center.

Petrus Yau can speak English but he is better in the Chinese language, both Mandarin and Cantonese. He bought the taxi
he was driving in August 2003 for Eighty Five Thousand Pesos (Php85,000.00) for personal use and/or for resale. It had a
defective engine (usually overheats), without an aircon and cannot travel for long journey. He does not drive a taxi to earn
a living. He had police friends who told him that he cannot drive a taxi as an occupation since his driver’s license is non-
professional.

Sometime on June 2003, he and his wife Susana had a heated argument over his womanizing. Hence, she decided to live
separately from him (though she was pregnant at that time) and moved to another house (Block 5, Lot 4, Tulip Street,
Andrea Village, Bacoor, Cavite). Sometimes, she would visit him.

Petrus claimed that his house does not have a basement, contrary to the victim’s testimony that he was placed in the
basement. He was not in his house when the police officers allegedly rescued the kidnapped victim. He left his house in
good condition in the morning before his arrest. The white Toyota Corolla taxi he was driving had markings of faded
grey, not black, as claimed by Alastair.

During the inquest proceedings, Petrus Yau was not assisted by a counsel and was not informedof his constitutional rights.

Susana Sumogba Yau denied the accusation that she was in the company of the kidnapper every time the latter served
Alastair’s food (lunch and dinner). She is legally married to Petrus Yau. They have two (2) children named Charlie and
Vivian. On February 11, 2004, she lived at Block 5, Lot 4, Tulips Street, Andrea Village, Bacoor, Cavite, while Petrus
Yau lived at Block 23, Lot 2, Ponsettia Street, Sorrento Town Homes, Bacoor, Cavite, with his girlfriend. Susana and
Petrus were separated since June 2003.

On February 11, 2004, she called him to pick up the amount of Php7,000.00 (earnings of her sari-sari store) and to deposit
it in her account at Asia Trust Bank. She would request Petrus to do such errand for her as she does not trust her
househelp. Petrus came to her at around 7:00 o’clock in the morning. At around 11:00 o’clock a.m. of the same day,
four(4) to five (5) policemen arrived at her residence and told her to come with them to the hospital where Petrus was
brought because he met a vehicular accident along Aguinaldo Highway.

Susana, together with her children and helpers, went with them, and rode in their van. They, however, were not brought to
the hospital but to an office. Thereat, Susana saw her husband (almost dead) inside a small room with a one-way mirror.
She was not able to talk to him. She, together with her children and helpers, were detained for three (3) days inside a small
room. After three (3) days, her children and helpers were released and they went home. At that time, she was not provided
with the assistance of a counsel.

Susana stated that her husband’s name is Petrus Yau. He is not known either as John or Ong Kwai Ping. He is engaged in
the business of buying cars for resale. They owned three (3) houses and lots, all registered in her name. At the time she
was taken into custody by the police, she had withher Five Thousand Pesos cash, Allied Bank passbook and ATM Cards
(Allied Bank and Asia Trust Bank), VISA card, passport, wedding ring, necklace and cellphone, which were taken away
by persons whom she does not know.7

The Ruling of the RTC

In its judgment, dated December 14,2007, the RTC convicted Petrus Yau, as principal, of the crime of kidnapping for
ransom and serious illegal detention, and Susana Yau,as an accomplice to the commission thereof. The RTC found the
testimonies of the prosecution witnesses credible and sufficient, with their versions of the incident dovetailing with each
other even on minor details. It observed that Petrus failed to rebut his positive identification by the victim, Alastair and his
brother Aaron John Onglingswam (Aaron John), with whom he talked for several times over the phone. It stated that the
circumstantial evidence proffered by the prosecution had adequately reinforced its theory that Petrus was the perpetrator
of the heinous act.

With respect to Susana, the RTC wrote that she was positively identified by Alastair as the Filipino woman who fed him
or accompanied Petrus in bringing him food during his 22 days of captivity and, for said reason, should be held liable as
an accomplice.

The RTC rejected the twin defenses of alibi and frame-up submitted by Petrus and Susana because the same were
unsubstantiated by clear and convincing evidence. The dispositive portion of the said decision states:

WHEREFORE, this court renders judgment finding the accused Petrus Yau GUILTY BEYOND REASONABLE
DOUBT as principal of the crime of kidnapping for ransom and serious illegal detention and pursuant to Republic Act No.
9346, he is hereby sentenced to suffer the prison term of RECLUSION PERPETUA. The court also finds the accused
Susana Yau GUILTY BEYOND REASONABLE DOUBT as accomplice to the commission of the crime of kidnapping
for ransom and serious illegal detention and applying to her the benefit of the Indeterminate Sentence Law wherein her
minimum penalty shall be taken from the penalty next lower in degree of the imposable penalty of RECLUSION
TEMPORAL which is prision mayor, she is hereby therefore sentenced to suffer the prison term of EIGHT (8) YEARS
and ONE (1) DAY of PRISION MAYOR MINIMUM AS MINIMUM to TWELVE (12) YEARS and TEN (10)
MONTHS of RECLUSION TEMPORAL MINIMUM AS MAXIMUM.Accused are credited in full of the preventive
imprisonment they have already served in confinement.

Further, both accused are sentenced to pay, jointly and severally, the victim ALASTAIR JOSEPH ONGLINGSWAM
actual damages of Two Hundred Seventy Three Thousand and One Hundred Thirty Two Pesos (273, 132.00) plus interest
from the filing of the information until full payment, moral damages of One Million Pesos (1,000,000.00), and exemplary
damages of Two Hundred Thousand Pesos (200,000.00).

SO ORDERED.8

Unfazed, Petrus and Susana appealed the RTC judgment of conviction before the CA.

The Ruling of the CA

The CA affirmed the conviction of Petrus and Susana.9 The appellate court likewise lent credence to the testimonies of the
prosecution witnesses, who were able to establish with certitude the commission of the crime and the identities of the
culprits thereof.

Hence, this appeal.


ASSIGNED ERRORS:

THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT WAS
ILLEGALLY ARRESTED AND AS SUCH, THE PIECES OF OBJECT EVIDENCE ALLEGEDLY SEIZED ARE
INADMISSIBLE.

II

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE WAS POSITIVE IDENTIFICATION OF THE
ACCUSEDAPPELLANT AS THE ALLEGED KIDNAPPER.

III

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED.10

Susana insisted that the trial court erred: 1] in not giving credence to her claim that she was living separately with her
husband, Petrus Yau; 2] in not considering that she was not mentioned in the sworn statement executed by Alastair, dated
February 12, 2004, even when said victim was asked if there was another person assisting Petrus in the perpetration of the
crime; 3] in not considering the Resolution of the Department of Justice, dated February 13, 2004, finding probable cause
against her because she is the registered owner of the house where Alastair was held captive and not because she served
food on the victim; and 4] in convicting her as an accomplice.11

On September 11, 2013, the Court issued a resolution12 notifying the parties that they could file their respective
supplemental briefs if they so desire. The People of the Philippines, represented by the OSG, opted not to file any
supplemental brief, maintaining its positions and arguments in its brief earlier filed in CA-G.R. CR-H.C. No.
03446.13Petrus filed his Supplemental Brief14 on December 27, 2013 in amplification of his arguments raised in his brief
filed before the CA.

The Court’s Ruling

The appeal is bereft of merit.

Encapsulated, the issues herein focus on: (a) the credibility of the prosecution witnesses; (b) the sufficiency of the
prosecution evidence to prove the commission of kidnapping for ransom and the identity of the culprits thereof; and (c)
the degree of responsibility of each accusedappellant for the crime of kidnapping for ransom.

Worth reiterating on the issue of the credibility of the witnesses is the ruling of the Court in People v. Maxion15 that:

The issue raised by accused-appellant involves the credibility of witness, which is best addressed by the trial court, it
being in a better position to decide such question, having heard the witness and observed his demeanor, conduct, and
attitude under grueling examination. These are the most significant factors in evaluating the sincerity of witnesses and in
unearthing the truth, especially in the face of conflicting testimonies.Through its observations during the entire
proceedings, the trial court can be expected to determine, with reasonable discretion, whose testimony to accept and
which witness to believe. Verily, findings of the trial court on such matters will not be disturbed on appeal unless some
facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the
disposition of the case.16

It has been an established rule in appellate review that the trial court’s factual findings, such as its assessment of the
credibility of the witnesses, the probative weight of their testimonies, and the conclusions drawn from the factual findings,
are accorded great respect and have even conclusive effect. Such factual findings and conclusions assume even greater
weight when they are affirmed by the CA17
In the case at bench, the RTC gavemore weight and credence to the testimonies of the prosecution witnesses compared to
those of the accusedappellants. After a judicious review of the evidence on record, the Court finds no cogent reason to
deviate from the factual findings of the RTC and the CA, and their respective assessment and calibration of the credibility
of the prosecution witnesses.

In every criminal case, the task ofthe prosecution is always two-fold, that is, (1) to prove beyond reasonable doubt the
commission of the crime charged; and (2) to establish with the same quantumof proof the identity of the person or persons
responsible therefor, because, evenif the commission of the crime is a given, there can be no conviction without the
identity of the malefactor being likewise clearly ascertained.18 Here, the prosecution was able to satisfactorily discharge
this burden.

Victim Alastair positively identified Petrus as the driver of the white Toyota Corolla taxicab with Plate No. PVD 115
which he boarded before he lost consciousness on the afternoon ofJanuary 20, 2004. He claimed that while he was
conversing with his business associate Kelly Wei over his phone inside the taxicab, Petrus would turn his face towards
him, from time to time, and would talk as if he was being spoken to. Alastair claimed that he had a good look and an
ample opportunity toremember the facial features of the driver as to be able to recognize and identify him in court. It is the
most natural reaction for victims of crimes to strive to remember the faces of their accosters and the manner in which the
craven acts are committed.19

Alastair also recognized the voice behind the red mask used by his kidnapper as belonging to Petrus. It was established
that from the first to the twentieth day of Alastair’s captivity,his kidnapper would meet him five times a day and would
talk to him for an hour, thus, enabling him to remember the culprit’s voice which had a unique tone and noticeable
Chinese accent. Alastair declared with certainty that it was the voice of Petrus. Witness Aaron John insisted that the
person who introduced himself as Ong Kwai Ping and with whom he had talked over the phone for three weeks,
demanding necessity money and ransom for the release of his brother Alastair, was Petrus because of the distinct tone of
his voice with Chinese accent. There was no showing that Alastair and Aaron John had any ill motive to falsely testify
against Petrus. As a rule, absent any evidence showing any reason or motive for prosecution witnesses to perjure, the
logical conclusion is that no suchimproper motive exists, and their testimonies are, thus, worthy of full faith and credit. 20

Further, the prosecution presented credible and sufficient pieces of circumstantial evidence that led tothe inescapable and
reasonable conclusion that Petrus committed the crime charged. The settled rule is that a judgment of conviction based on
circumstantial evidence can be upheld only if the following requisites concur: (1) there is more than one circumstance; (2)
the facts from which the inferencesare derived are proven; and (3) the combination of all the circumstances is such as to
produce conviction beyond reasonable doubt.21 The corollary rule is that the circumstances proven must constitute an
unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as
the guilty person.22

The combination of the following established facts and circumstances affirm the findings of guilt by the RTC and the CA:

1] The victim was rescued by the police inside the house owned by Petrus and Susana, located at Block 23, Lot 2,
Ponsettia St., Camella Sorrento Homes, Bacoor, Cavite;

2] The Toyota Corolla white taxicab bearing Plate No. PVD 115, which the victim recalled boarding in going to
Virra Mall Greenhills Shopping Center on the afternoon of January 20, 2004 and where he lost consciousness,
was found in the possession of the accused-appellant Petrus on February 11, 2004;

3] The driver’s license of Petrus and an ATM card in the name of Ong Kwai Ping were recovered inside the
Toyota Corolla taxicab of Petrus Yau;

4] In the house where the victim was rescued, the following evidence were found: one (1) chain with padlock;
handcuffs; short broken chain; checkered pajama; black blazer; one (1) Onesimus black coat; two (2) video
camera cartridges, one showing the victim in lying down position and family footages, and the other one labeled
"sex scandal"; eight (8) pieces of cellphones; notebook; two (2) Talk n Tex SIM cards; Globe SIM card; two (2)
Transfer Certificates of Title for two pieces of land in Bacoor, Cavite, under the name of Susana Sumogba;
original copy of the OfficialReceipts and Certificate of Registration of a Suzuki 1993 motorcycle bearing Plate
No. 2M9748; business license and mayor’s permit issued to Susana Yau; marriage contract of Petrus Yau and
Susana Yau; birth certificate of Susana Sumogba; birth certificates of their children; ACR of Petrus Yau; Meralco
bills; Asia Trust deposit slips; five ATM deposit slips; and PLDT bills;

5] Two (2) cellphones, a QTEK Palmtop and a Sony Erickson were found in the possession of Petrus.
Incidentally, it was reported that the owner ofthe QTEK Palmtop cellphone was a certain Jasper Beltran, also a
kidnapped victim whose whereabouts had not been known yet; and

6] The DNA examination on the red mask worn by the kidnapper that was recovered inside the house and on the
buccal swab taken from Petrus showed that both DNA profiles matched.23

The Court agrees with the findings of the RTC and the CA that the foregoing pieces of circumstantial evidence, when
analyzed and taken together, definitely lead to no other conclusion than that Petrus was the author of the kidnapping for
ransom. When viewed as a whole, the prosecution evidence effectively established his guilt beyond reasonable doubt.

The elements of Kidnapping For Ransom under Article 267 of the RPC, as amended by R.A. No. 7659, are asfollows: (a)
intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; and
(c) motive of the accused, which is extorting ransom for the release of the victim.24

All of the foregoing elements were duly established by the testimonial and documentary evidences for the prosecution in
the case at bench. First, Petrus is a private individual. Second, Petrus kidnapped Alastair by using sleeping substance
which rendered the latter unconscious while inside a taxicab driven by the said accused-appellant. Third, Petrus took and
detained Alastair inside the house owned by him and Susana Yau in Bacoor, Cavite, where said victim was handcuffed
and chained, and hence, deprived of his liberty. Fourth, Alastair was taken against his will. And fifth, Petrus made
demands for the delivery of a ransomin the amount of US$600,000.00 for the release of the victim.

Anent the criminal liability of eachaccused-appellant, there is no doubt that Petrus is liable as principal of the crime of
kidnapping for ransom. Susana, on the other hand, is liable only as an accomplice to the crime as correctly found by the
lower courts. It must be emphasized that there was no evidence indubitably proving that Susanaparticipated in the
decision to commit the criminal act. The only evidence the prosecution had against her was the testimony of Alastair to
the effect that he remembered her as the woman who gave food to him or who accompanied his kidnapper whenever he
would bring food to him every breakfast, lunch and dinner. Jurisprudence25 is instructive of the elements required, in
accordance with Article 18 of the RPC, in order that a person may be considered an accomplice, namely, (1) that there bea
community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the
latter in his purpose; (2) that he cooperates in the execution by previous or simultaneous act, with the intention of
supplying material or moral aid in the execution of the crime in an efficacious way; and (3) that there be a relation
between the acts done by the principal and those attributed to the person charged as accomplice.

In the case at bench, Susana knew of the criminal design of her husband, Petrus, but she kept quiet and never reported the
incident to the police authorities. Instead, she stayed with Petrus inside the house and gave food to the victim or
accompanied her husband when he brought food to the victim. Susana not only countenancedPetrus’ illegal act, but also
supplied him with material and moral aid. It has been held that being present and giving moral support when a crime is
being committed make a person responsible as an accomplice in the crime committed.26 As keenly observed by the RTC,
the act of giving food by Susana to the victim was not essential and indispensable for the perpetration ofthe crime of
kidnapping for ransom but merely an expression of sympathy orfeeling of support to her husband.27 Moreover, this Court
is guided by the ruling in People v. De Vera,28 where it was stressed that in case of doubt, the participation of the offender
will be considered as that of an accomplice rather thanthat of a principal.

Alastair’s positive identification of Susana is not in any bit prejudiced by his failure to mention her name in his sworn
statement, dated February 12, 2004. It is well-settled that affidavits, being ex parte, are almost always incomplete and
often inaccurate, butdo not really detract from the credibility of witnesses.29 Oftentimes, the allegationscontained in
affidavits involved mere passive mention of details anchored entirely on the investigator’s questions. The discrepancies
between a sworn statement and a testimony in court do not outrightly justify the acquittal ofan accused, as testimonial
evidence carries moreweight than an affidavit.30 Testimonies given during the trial are more exact and elaborate. Besides,
sworn statements are often executed when an affiant’s mental faculties are not in such a state as to afford the affiant a fair
opportunity of narrating in full the incident which transpired.31
Given the overwhelming picture of their complicity in the crime, this Court cannot accept the defenses of alibi and frame-
up interposed by the accused-appellants. Alibi is the weakest of all defenses, for it is easy to contrive and difficult to
prove. Alibi must be proven by the accused with clear and convincing evidence; otherwise it cannot prevail over the
positive testimonies of credible witnesses who testify on affirmative matters.32 The defense of frame-up, like alibi, has
been invariably viewed by this Court with disfavor, for it can easily be concocted but is difficult to prove.1âwphi1 In
order to prosper, the defense of frame-up must be proven by the accused with clear and convincing evidence.33 Apart from
their bare allegations, no competent and independent evidence was adduced by the accused-appellants to substantiate their
twin defenses of alibi and frame-up and, thus, remain selfserving and do not merit any evidentiary value. More
importantly, nowhere in the records does it show of any dubious reasons or improper motive that could have impelled the
prosecution witnesses, particularly victim Alastair Onglingswam, to falsely testify and fabricate documentary or object
evidence just to implicate accused-appellants in such a heinous crime as kidnapping for ransom. Their only motive was to
see to it that the kidnapper be brought to justice and sentencedwith the appropriate penalty.

As a last-ditch effort to exculpate themselves from any criminal culpability, the accused-appellants questioned the legality
of their warrantless arrests. This too must fail.

Any objection to the procedure followed in the matter of the acquisition by a court of jurisdiction over the person of the
accused must be opportunely raised before he enters his plea; otherwise, the objection is deemed waived.34 The accused-
appellants never objected to or questioned the legality of their warrantless arrests or the acquisition of jurisdiction by the
RTC over their persons before theyentered their respective pleas to the kidnapping for ransom charge. Considering this
lapse and coupled with their full and active participation in the trial of the case, accused-appellants were deemed to have
waived any objection to their warrantless arrests. The accused-appellants voluntarily submitted to the jurisdiction of the
RTC thereby curing whatever defects that might have attended their arrest. It bears stressing that the legality of the arrest
affects only the jurisdiction of the court over their persons.35Their warrantless arrests cannot, by themselves, be the bases
of their acquittal.

Even assuming arguendo that the accused-appellants made a timely objection to their warrantless arrests, jurisprudence is
replete with rulings that support the view that their conviction was proper despite being illegally arrested without a
warrant. In People v. Manlulu,36 the Court ruled that the illegality of the warrantless arrest cannot deprive the State of its
right to prosecute the guilty when all other facts on record point to their culpability. Indeed, the illegal arrest of an accused
is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from
error.37

With respect to the penalty, the Court finds that the RTC was correct in imposing the penalty of reclusion perpetuawithout
eligibility of parole against Petrus as principal in the charge of kidnapping for ransom in view of R.A. No. 9346,
prohibiting the death penalty. Also, the Court finds that the penalty of eight (8) years and one (1) day of prision mayor, as
minimum, to twelve (12) years and ten (10) months of reclusion temporal, as maximum, meted out against Susana, an
accomplice, to be proper.

The Court also sustains the RTC in awarding actual damages in the amount of 273,132.00 plus interest committed from
the filing of the information until fully paid. As regards the moral damages against the accused-appellants, the Court
findsthe award of ₱1,000,000.00 to be exorbitant. Hence, the same is being reduced to ₱200,000.00, as the reasonable
compensation for the ignominy and sufferings that Alastair and his family endured because of the accused-appellants’
inhumane acts of detaining him in handcuffs and chains, and mentally torturing him and his family to raise the ransom
money. The fact that they suffered the trauma from mental, physical and psychologicalordeal which constitutes the basis
for moral damages under Article 2219 of the Civil Code is too obvious to still require its recital at the trial through the
superfluity of a testimonial charade. The Court also finds the award of exemplary damages to be in order in view of the
presence of the qualifying circumstance of demand for ransom, and to serve as an example and deterrence for the public
good. The Court, however, reduces the amount from ₱200,000.00 to ₱100,000.00 in line with prevailing jurisprudence.38

The RTC, however, erred in ruling that Susana was solidarily liable with Petrus for the payment of damages. This is an
erroneous apportionment of the damages awarded because it does not take into account the difference in the nature and
degree of participation between the principal, Petrus, and the accomplice, Susana. The ruling of this Court in People v.
Montesclaros39 is instructive on the apportionment of civil liabilities among all the accusedappellants. The entire amount
of the civil liabilities should be apportioned among all those who cooperated in the commission of the crime according to
the degrees of their liability, respective responsibilities and actual participation. Accordingly, Petrus should shoulder a
greater share in the total amount of damages than Susana who was adjudged only as an accomplice.

In fine, the accused-appellants are ordered to pay the victim, Alastair Onglingswam actual damages in the amount of
₱273, 132.00; moral damages in the amount of ₱200,000.00; and exemplary damages in the amount of ₱100,000.00, or a
total amount of ₱573, 132.00. Taking into consideration the degree of their participation, the principal, Petrus, should be
liable for two-thirds (2/3) of the total amount of the damages (₱573, 132.00 x 213) or ₱382,088.00; and the accomplice,
Susana, should be ordered to pay the remaining one-third (1/3) or ₱191,044.00. Specifically, Petrus shall be liable for
actual damages in the amount of P 182,088.00; moral damages in the amount of ₱133,333.33; and exemplary damages in
the amount or ₱66,666.6 7; and Susana for the amount of ₱91,044.00 as actual damages; ₱66,666.67 as moral damages;
and ₱33,333.33 as exemplary damages.

WHEREFORE, the September 7, 2012 Decisi0n of the Court of Appeals in CA-G.R. CR-H.C. No. 03446 is AFFIRMED
with MODIFICATION in that accused-appellants Petrus Yau and Susana Yau y Sumogba are ordered to pay the victim
Alastair Joseph Onglingswam moral damages in the amount of ₱200,000.00 and exemplary damages in the amount of Pl
00,000.00. The award of actual damages in the amount or ₱273, 132.00 is maintained. The civil liabilities of the accused-
appellants shall be apportioned as follows:

1] Petrus Yau is directed to pay actual damages in the amount of ₱182,088.00; moral damages in the amount of P
133,333.33; and exemplary damages in the amount of ₱66,666.67; and

2] Susana Yau y Sumogba is directed to pay actual damages in the amount of ₱91,044.00, moral damages in the
amount of ₱66,666.67 and exemplary damages in the amount of ₱33,333.33.

SO ORDERED.
[G.R. No. 135784. December 15, 2000]

RICARDO FORTUNA Y GRAGASIN, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

DECISION
BELLOSILLO, J . :

Perhaps no other profession in the country has gone through incessant maligning by the public in general than its
own police force. Much has been heard about the notoriety of this profession for excessive use and illegal discharge of
power. The present case is yet another excuse for such vilification.
On 21 July 1992 at about 5:00 oclock in the afternoon, while Diosdada Montecillo and her brother Mario Montecillo
were standing at the corner of Mabini and Harrison Streets waiting for a ride home, a mobile patrol car of the Western
Police District with three (3) policemen on board stopped in front of them. The policeman seated on the right at the front
seat alighted and without a word frisked Mario. He took Marios belt, pointed to a supposedly blunt object in its buckle and
uttered the word "evidence."[1] Then he motioned to Mario to board the car. The terrified Mario obeyed and seated himself
at the back together with another policeman. Diosdada instinctively followed suit and sat beside Mario.
They cruised towards Roxas Boulevard. The driver then asked Mario why he was carrying a "deadly weapon," to
which Mario answered, "for self-defense since he was a polio victim."[2]The driver and another policeman who were both
seated in front grilled Mario. They frightened him by telling him that for carrying a deadly weapon outside his residence
he would be brought to the Bicutan police station where he would be interrogated by the police, mauled by other prisoners
and heckled by the press. As they approached Ospital ng Maynila, the mobile car pulled over and the two (2) policemen in
front told the Montecillos that the bailbond for carrying a "deadly weapon" was P12,000.00. At this point, the driver asked
how much money they had. Without answering, Mario gave his P1,000.00 to Diosdada who placed the money inside her
wallet.
Diosdada was then made to alight from the car. She was followed by the driver and was told to go behind the
vehicle. There, the driver forced her to take out her wallet and rummaged through its contents. He counted her money. She
had P5,000.00 in her wallet. The driver took P1,500.00 and left her P3,500.00. He instructed her to tell his companions
that all she had was P3,500.00. While going back to the car the driver demanded from her any piece of jewelry that could
be pawned. Ruefully, she removed her wristwatch and offered it to him. The driver declined saying, "Never mind,"[3] and
proceeded to board the car. Diosdada, still fearing for the safety of her brother, followed and sat beside him in the car.
Once in the car, Diosdada was directed by the policeman at the front passenger seat to place all her money on the
console box near the gearshift. The car then proceeded to Harrison Plaza where the Montecillos were told to
disembark. From there, their dreadful experience over, they went home to Imus, Cavite.
The following day Diosdada recounted her harrowing story to her employer Manuel Felix who readily accompanied
her and her brother Mario to the office of General Diokno where they lodged their complaint. Gen. Diokno directed one of
his men, a certain Lt. Ronas, to assist the complainants in looking for the erring policemen. They boarded the police patrol
car and scoured the Mabini area for the culprits. They did not find them.
When they returned to the police station, a line-up of policemen was immediately assembled. Diosdada readily
recognized one of them as the policeman who was seated beside them in the back of the car. She trembled at the sight of
him. She then rushed to Lt. Ronas and told him that she saw the policeman who sat beside them in the car. He was
identified by Lt. Ronas as PO2 Ricardo Fortuna. A few minutes later, Gen. Diokno summoned the complainants. As they
approached the General, they at once saw PO2 Eduardo Garcia whom they recognized as the policeman who frisked
Mario. The following day, they met the last of their tormentors, the driver of the mobile car who played heavily on their
nerves - PO3 Ramon Pablo.
The three (3) policemen were accordingly charged with robbery. After trial, they were found guilty of having
conspired in committing the crime with intimidation of persons. They were each sentenced to a prison term of six (6)
years and one (1) day to ten (10) years of prision mayor, to restitute in favor of private complainants Diosdada Montecillo
and Mario Montecillo the sum of P5,000.00, and to indemnify them in the amount of P20,000.00 for moral damages
and P15,000.00 for attorneys fees.[4]
The accused separately appealed to the Court of Appeals. On 31 March 1997 the appellate court affirmed the lower
court's verdict.[5] Accused-appellant Ricardo Fortuna moved for reconsideration but the motion was denied. Hence, this
petition by Fortuna alone under Rule 45 of the Rules of Court. He contends that the appellate court erred in holding that
private complainants gave the money to the accused under duress, the same being negated by the prosecutions evidence,
and in affirming the decision of the court below. He argued that the evidence presented by the prosecution did not support
the theory of conspiracy as against him.[6]
The issues raised by accused-appellant, as correctly observed by the Solicitor General, are purely factual. We have
consistently stressed that in a petition for review on certiorari this Court does not sit as an arbiter of facts. As such, it is
not our function to re-examine every appreciation of facts made by the trial and appellate courts unless the evidence on
record does not support their findings or the judgment is based on a misappreciation of facts. [7] The ascertainment of what
actually happened in a controverted situation is the function of the lower courts. If we are to re-examine every factual
finding made by them, we would not only be prolonging the judicial process but would also be imposing upon the heavily
clogged dockets of this Court.
We do not see any infirmity in the present case justifying a departure from this well-settled rule. On the contrary, we
are convinced that the trial and appellate courts did not err in holding that accused-appellant Fortuna conspired with the
accused Pablo and Garcia in intimidating private complainants to give them their money.
We are convinced that there was indeed sufficient intimidation applied on the offended parties as the acts performed
by the three (3) accused, coupled with the circumstances under which they were executed, engendered fear in the minds of
their victims and hindered the free exercise of their will. The three (3) accused succeeded in coercing them to choose
between two (2) alternatives, to wit: to part with their money or suffer the burden and humiliation of being taken to the
police station.
To our mind, the success of the accused in taking their victims' money was premised on threats of prosecution and
arrest. This intense infusion of fear was intimidation, plain and simple.
Accused-appellant further argues that assuming arguendo that the element of intimidation did exist, the lower court
erred in holding that he conspired with his companions in perpetrating the offense charged.
This indeed is easy to assert, for conspiracy is something which exists only in the minds of the conspirators, which
can easily be denied. However, conspiracy may be detected and deduced from the circumstances of the case which when
pieced together will indubitably indicate that they form part of a common design to commit a felony; and, to establish
conspiracy, it is not essential that there be actual proof evincing that all of the conspirators took a direct part in every act,
it being sufficient that they acted in concert pursuant to the same objective.[8]
In the present case, accused-appellant would want to impress upon this Court that his silence inside the car during
Marios interrogation confirmed his claim that he did not participate in the offense.
We do not agree. As a police officer, it is his primary duty to avert by all means the commission of an offense. As
such, he should not have kept his silence but, instead, should have protected the Montecillos from his mulcting
colleagues. This accused-appellant failed to do. His silence then could only be viewed as a form of moral support which
he zealously lent to his co-conspirators.
In one case, we ruled that in conspiracy all those who in one way or another helped and cooperated in the
consummation of a felony were co-conspirators.[9] Hence, all of the three (3) accused in the present case should be held
guilty of robbery with intimidation against persons.
We however observe that the courts below failed to appreciate the aggravating circumstance of "abuse of public
position."[10] The mere fact that the three (3) accused were all police officers at the time of the robbery placed them in a
position to perpetrate the offense. If they were not police officers they could not have terrified the Montecillos into
boarding the mobile patrol car and forced them to hand over their money. Precisely it was on account of their authority
that the Montecillos believed that Mario had in fact committed a crime and would be brought to the police station for
investigation unless they gave them what they demanded.
Accordingly, the penalty imposed should be modified. Under Art. 294, par. (5), of The Revised Penal Code, the
penalty for simple robbery is prision correccional in its maximum period to prision mayor in its medium period. In view
of the aggravating circumstance of abuse of public position, the penalty should be imposed in its maximum
period[11] while the minimum shall be taken from the penalty next lower in degree, which is arresto mayor maximum
to prision correccional medium in any of its periods the range of which is four (4) months and one (1) day to four (4)
years and two (2) months.
WHEREFORE, the Decision of the Court of Appeals which affirmed that of the trial court finding accused-appellant
Ricardo Fortuna guilty of robbery and ordering him to pay complaining witnesses Diosdada Montecillo and Mario
Montecillo P5,000.00 representing the money taken from them, P20,000.00 for moral damages and P15,000.00 for
attorney's fees, isAFFIRMED with the modification that accused-appellant Ricardo Fortuna is SENTENCED to the
indeterminate prison term of two (2) years four (4) months and twenty (20) days of the medium period of arresto
mayor maximum to prision correccional medium, as minimum, to eight (8) years two (2) months and ten (10) days of the
maximum period of prision correccionalmaximum to prision mayor medium, as maximum.
Costs against accused-appellant Ricardo Fortuna.
SO ORDERED.
G.R. No. 100805 March 24, 1994

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
OPINIADO DOLAR y EVALLA and REYNALDO MONTALBO y GUTIERREZ, accused-appellants.

The Solicitor General for plaintiff-appellee.

Antonio R. Canlas for accused-appellant.

PUNO, J.:

In an Information,1 dated October 27, 1987, accused REYNALDO MONTALBO and OPINIADO DOLAR were charged
with ROBBERY WITH RAPE, allegedly committed as follows:

That on or about October 24, 1987, in the City of Manila, Philippines, the said accused, conspiring and
confederating together and mutually helping each other, did then and there willfully, unlawfully and
feloniously, with intent of (sic) gain and by means of force, violence and intimidation, to wit: by then and
there poking a knife at Danilo Permison y Rosalin and Leny Reli y Santualia, threatening them with death
should they make an outcry and thereafter striking the former with the knife, hitting him on the left hand,
take steal and carry away one wallet containing cash money of P270.00 and one Citizen wristwatch worth
P880.00, belonging to said Danilo Permison y Rosalin and cash money of P20.00, belonging to Leny Reli
y Santualia, all in the total amount of P1,170.00, against their will, to the damage and prejudice of said
owners in the said sum of P1,170.00 Philippine Currency; that on said occasion, the said robbery was
accompanied by rape in that said Opiniado Dolar y Evalla in pursuance of their conspiracy with each
other, did then and there willfully, unlawfully and feloniously, by means of force, violence and
intimidation to wit: by then and there poking the knife at the neck of said Leny Reli y Santualia,
succeed(ed) in having carnal knowledge of her, against her will and consent. (emphasis ours)

Contrary to law.

Upon their arraignment on December 11, 1987, the accused pleaded not guilty2 and underwent trial.

The prosecution's evidence show that at around eight-thirty in the evening of October 24, 1987, Danilo Permison and his
nineteen year-old girlfriend,
Leny Reli, were walking along Bonifacio Drive, Port Area, Manila. From Anda Circle, they headed towards the
Philippine Coast Guard headquarters. Across the Bonifacio Drive was the lighted NAPOCOR building. Suddenly,
Reynaldo Montalbo and Opiniado Dolar darted from a dark portion of the area. Sensing danger, Danilo and Levy evaded
the two. However, it was too late. Dolar collared and poked a fan knife (balisong) on Danilo. Montalbo, on the other hand,
poked a fan knife on Leny. Both accused warned them: "Huwag (kayong) sisigaw at baka papatayin namin kayo." (Don't
shout or we will kill you).3

Danilo and Leny were dragged to the darker portion of the area. The hold-uppers, again, threatened to kill them should
they refuse to give them their money and jewelry. They obeyed. As Danilo was getting the wallet from his pocket,
accused Dolar lunged at him saying: "Ang bagal mo," injuring the left thumb of Danilo in the process. Irritated, Dolar
pinned down Danilo on the ground with his face down. He took Danilo's wallet, containing cash in the sum of P270.00,
and his Citizen watch worth P880.00. Leny was also made to lie on the ground. A twenty peso bill was taken from her by
Montalbo. Thereafter, Danilo and Leny were ordered to lie on the ground with their face up.4

After Danilo and Leny were divested of their money and jewelry, accused Montalbo fled towards the squatters' area
nearby, leaving behind Dolar. Apparently, Dolar had other sinister intent in mind. He sat on Danilo's belly and, with the
fan knife poked on Danilo's chest, warned: "Huwag kang kikilos, ibabaon ko ito."5
Dolar ordered Leny to come nearer. She obliged. He asked her to kiss him and threatened to kill Danilo if she refuse to do
so. Fearful for the life of her boyfriend, she closed her eyes and allowed accused Dolar to kiss her on the lips. Dolar
pressed her down on the ground beside Danilo. With his left hand, he unbuttoned, unzipped and pulled down
Leny's maong pants. Thereafter, he removed her panty. He did all these while the knife, which he held with his right hand,
was poked on Danilo's chest. Danilo helplessly watched as Dolar was touching and biting Leny's private part. His lust still
unsatisfied, Dolar lowered his pants and brief to his knees, pointed the knife at Leny's throat and then went on top of her.
Dolar cautioned Danilo not to move, otherwise, he would kill Leny. Danilo waited for his chance to escape. Finally, when
accused kneeled to satisfy his lust, Danilo immediately stood up and ran towards the NAPOCOR building for help.6 While
Danilo was gone, Dolar continued ravishing Leny. Soon after, he fled towards the squatter's area.

After her rapist had left, Leny stood up and put on her panty and pants. She was crying as she proceeded towards the
NAPOCOR building. With the help of the security guards on duty, the policemen were informed of the incident.

That same evening, policemen from the Western Police District conducted a saturation drive in the squatters' area. More
or less, fifteen (15) men, including accused Opiniado Dolar and Reynaldo Montalbo, were gathered by the policemen and
brought to Precinct No. 5 of the Western Police District in Manila. A police line-up was formed. Without hesitation,
Danilo and Leny identified accused Reynaldo Montalbo and Opiniado Dolar as the culprits. Thereafter, the sworn
statements of Danilo Permison, Leny Reli and one Miriam Castro, alleged owner of the house where accused were found
hiding, were taken. It was then twelve thirty in the morning of October 25, 1987.

The defense was anchored on alibi. Reynaldo Montalbo, a truck helper and resident of 20th Street, Bonifacio Drive, Port
Area, Manila, averred that on October 24, 1987, he reported for work from one o'clock until five o'clock in the afternoon.
At around six o'clock in the evening, he went home. He was resting on his rented room, owned by the father of Miriam
Castro, when the policemen arrived at eight thirty in the evening that same day. The policemen gathered fifteen (15) men
from the 20th Street. Subsequently, he and several other men were taken to Precinct No. 5. At the station, a police line-up,
consisting of fifteen (15) men, including himself and Dolar whom he saw for the first time, was formed. Danilo and Leny
identified him and Dolar from the line-up. He alleged that Leny was merely coached by Danilo to get even.

For his part, Opiniado Dolar asserted that at around five o'clock in the afternoon of October 24, 1987, he paid a visit to his
friend, Reynaldo Improgo Dumarao, at the latter's residence at 20th Street, Port Area, Manila. They talked until nine
o'clock in the evening. The policemen then arrived and ordered them to step out of the house. Fifteen (15) men, including
himself and Dumarao, were brought to the police station. He denied knowing Reynaldo Montalbo. He and Montalbo were,
thereafter, identified from the police line-up by Danilo Permison.

Defense witness Reynaldo Improgo Dumarao corroborated the testimony of his friend, Opiniado Dolar, that the latter
visited him between four thirty and five o'clock in the afternoon of October 24, 1987. It was alleged that on
October 24, 1987, Dolar had just arrived in Manila, from their hometown Bacolod. They engaged in conversation. At
around nine o'clock in the evening, the policemen came. The policemen brought fifteen (15) men to the precinct. After
Dolar and Montalbo were identified from the police line-up, they
(accused Dolar and Montalbo) were jailed.

In its Decision, dated August 15, 1989, the trial court found accused Dolar and Montalbo guilty as charged of robbery.
The trial court, however, ruled that there was no conspiracy to commit the crime of rape. The dispositive portion of trial
court's decision, reads:

WHEREFORE, the Prosecution having proven beyond reasonable doubt the guilt of the accused
Opiniado Dolar y Evalla of the crime of robbery with rape, sentences him to suffer the penalty of Life
Imprisonment; to pay Danilo Permison the sum of One Thousand one Hundred Fifty (P1,150.00) as
damages, and to pay Leny Reli the sum of Ten Thousand (P10,000.00) Pesos as damages.

Accused Reynaldo Montalbo y Gutierrez is likewise found guilty beyond reasonable doubt not of the
crime of robbery with rape, but only a simple robbery, and sentences him to suffer the penalty of FOUR
(4) YEARS, TWO (2) MONTHS, and ONE (1) DAY to SIX (6) YEARS IMPRISONMENT; to pay Leny
the sum of One Thousand (P1,000.00) Pesos as damages, he is entitled to the full term he was under
detention.
SO ORDERED.

Accused Reynaldo Montalbo did not appeal from the foregoing judgment. On February 1, 1990, he was granted a six-year
probation by the trial court.

For his part, Opiniado Dolar appealed, raising this error:

THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT OPINIADO DOLAR GUILTY


BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH RAPE.

We affirm the judgment of conviction.

We are aware of the trial court's difficult task of weighing the testimony of the prosecution witnesses vis-a-vis the
testimony of defense witnesses, particularly in rape cases. The issue, thus, boils down to the credibility of witnesses.

In the case at bench, two (2) prosecution witnesses, Danilo Permison and Leny Rely, positively identified accused-
appellant Dolar as the hold-upper and the rapist. Danilo Permison testified as follows:

FISCAL DELOS REYES:

Q: Mr. Danilo Permison, on October 24, 1987, on or about 8:00 in the evening, will you
tell us where you were then?

DANILO PERMISON:

A: I was walking towards the headquarters of the Philippine Coast Guard together with
Leny Reli.

xxx xxx xxx

Q: While you were walking with Leny, your girlfriend . . . , was there any unusual
incident that happened?

A: While (we were) walking, we met two (2) men.

Q: What happened after meeting these two men?

xxx xxx xxx

A: We evaded them, because I noticed that they had bad intention.

Q: What else happened after you are trying to evade them?

A: After we evade (sic) them, I was collared and a bladed weapon was poked on my
waist.

xxx xxx xxx

Q: These two men that you met that evening, will you be able to recognize them if you
see them again?

A: Yes, sir.

Q: If they are in this court room right now, will you kindly point them out?
INTERPRETER:

Witness pointing to . . . Opiniado Dolar and Reynaldo Montalbo.

Q: Which of these two men that you pointed before this Court collared you?

INTERPRETER:

Witness pointing to a person who answers in the name of Opiniado Dolar.

Q: Which of these two persons pointed out poked a Batangas Knife at your breast?

A: That same person Opiniado Dolar.

xxx xxx xxx

Q: What else happened if any after you and your companion were poked with a knife
with these two people?

A: I was told not to shout.

xxx xxx xxx

Q: What else happened after they told you not to shout?

A: They told us to produce our money and jewelries (sic), otherwise they will kill us.

Q: What did you do then after you were told to bring out your money and jewelries,
otherwise they will kill you?

A: Having dragged on me, I cannot do anything and we are (sic) made to lie down face
down and took our money.

Q: How much money was taken from you?

A: P270.00.

Q: How about jewelries (sic), were there any jewelries taken from you?

A: One Citizen wristwatch.

xxx xxx xxx

Q: How much is the value of your wristwatch?

A: P880.00.

Q: Who among these two accused took your wallet?

A: Opiniado Dolar was the one who took my wallet and then turned it over to Montalbo.

Q: How about your wristwatch, who took it from you?

A: He was the one also.


xxx xxx xxx

(TSN, April 21, 1988, pp. 3-5).

Leny Reli corroborated the testimony of her boyfriend. She further testified that accused Reynaldo Montalbo, took her
money in the amount of twenty pesos (P20.00). Thereafter, accused Montalbo fled to the squatters' area.

Leny vividly recalled how she was violated by accused-appellant in the presence of her boyfriend. She testified:

FISCAL:

Q: Miss Reli, this morning, you testified that after one of the accused (took) your money
he scampered away and thereafter, the other accused who was seated on top of the belly
of Danilo Permison ordered you to come closer to him, did you follow the order of the
accused?

COURT:

He already said that.

Q: When you come close to that accused seated on top of the belly of your boyfriend
about you, what happened when you came close to him?

A: He ordered me to kiss him.

Q: Did you follow his order to kiss him?

A: Yes, sir.

xxx xxx xxx

Q: How many times did you kiss him?

A: He was the one who kissed me, I just closed my eyes.

Q: After the accused kissed you, what happened next?

A: He removed my pants, sir.

xxx xxx xxx

Q: When the zipper of your pants was pulled down, what happened?

A: He also removed the panty, sir.

Q: What was your position when the button, when your pants was unbuttoned and the
zipper was pulled down?

A: I was lying, sir.

Q: How come you were lying on the ground when your pants and panty was (sic)
removed?

A: I was made to lie down, sir.


Q: How?

A: I was pressed to lie down, sir.

Q: What was the position of the accused when you were pressed and ordered to lie down?

A: He was still on top of my boyfriend Danilo Permison and his knife was still poked at
him.

xxx xxx xxx

Q: After you were ordered to come nearer to the accused, what happened next?

A: He begun kissing my private parts, sir, and he inserted his finger in my private parts.

xxx xxx xxx

Q: After the accused Dolar did this, . . . , what else happened?

A: He removed his pants and then rode on top of me.

xxx xxx xxx

Q: Where was your boyfriend Danilo Permison while the accused Dolar inserted his
private parts into yours . . . ?

A: He ran towards Napocor building to ask (for) help.

Q: You mean, you were left behind?

A: Yes, sir.

Q: When your companion, Danilo left and went to Napocor building, was it after the
accused had already inserted his private parts into yours or was it before?

xxx xxx xxx

A: He was in the process of entering his private parts into mine when my boyfriend
Danilo Permison ran towards Napocor.

(TSN, July 28, 1988, pp. 10-14).

We agree with the trial court's finding that Danilo and Leny told the truth when they testified in open court. Their
testimonies are not only consistent in all material aspects, they are also replete with minutiae of the incident.

There is no cogent reason for us to depart from the established doctrine that the findings of the trial court pertaining to the
credibility of witnesses deserve great respect since it had the opportunity to observe the demeanor of the witnesses as they
testified on the witness stand and, therefore, it could discern if the witnesses had told the truth or not.7

Accused-appellant contends that it was not possible for Danilo and Leny to recognize the culprits since the place of
incident was dark. He further alleges that Bonifacio Drive is not a busy street, particularly at night, and very few cars pass
by to illuminate the area. This argument is untenable.
We note that the Napocor building, some thirty meters from the place of incident, was lighted at the time Danilo and Leny
were held up. Accused-appellant was seen at close range by Danilo and Leny before they were dragged. Further, Danilo
and Leny testified that the light from the passing vehicles illuminated the area, thus, they managed to recognize the
culprits. The identification of accused-appellant, a few hours after the incident, bolstered the allegations of Danilo and
Leny on Dolar's participation in the crime. Judging from their testimonies in open court, Danilo and Leny had retained
their senses despite the horrible experience they had gone through. Thus, we held: "It is the most natural reaction for
victims of criminal violence to strive to see the looks and faces of their assailants and observe the manner in which the
crime was committed. Most often the face of the assailant and body movements thereof, create a lasting impression which
cannot be easily erased from their memory."8

We examined the evidence for accused-appellant which consist of his testimony and that of his childhood friend,
Reynaldo Dumarao.

Reynaldo Dumarao claimed that he was with accused-appellant on the date and time of commission of the offense. He
testified:

ATTY. CAWED:

Q: Now, where is Opiniado Dolar staying on October 24, 1987, if you know?

A: I do not know where he lives, but he came from Bacolod on


October 24, 1987.

Q: You said that the accused Opiniado Dolar arrived from Bacolod on October 24, 1987,
what time did he arrive then?

A: About 4:30 to 5:30 in the afternoon.

Q: Would you know where the accused was between 8:00 and
9:00 o'clock in the evening of October 24, 1987, the whereabouts of Opiniado Dolar?

A: He is in my house, he just came from the province and we were conversing.

Q: Now, when Opiniado Dolar arrived on October 14, 1987, at about 4:30 in the
afternoon, would you remember if he went out of your house on that particular date?

A: No. sir.

(TSN, May 11, 1989, pp. 4-5).

The defense would like to impress the court that accused-appellant did not commit the offense charged since he had just
arrived from Bacolod on the date and time in question. We are not persuaded.

The testimony of defense witness Reynaldo Dumarao was contradicted by accused-appellant on cross-examination.
Accused-appellant testified:

FISCAL:

Q: Now, . . . you mentioned a certain address as 4044-A Asteroid,


Sun Valley, Parañaque, what is that address that you gave?

A: That is the house of my wife.


Q: Are you telling the Court that before the resident (sic) took place on October 24, 1987,
you were living with your family in Sun Valley?

A: Yes, sir.

xxx xxx xxx

Q: Are you telling the Court that you have been living in that place for about a year
before October 24, 1987.

A: I go there.

Q: When (sic) you mean to say that you have been living there less than a year?

A: Yes, sir.

Q: Would you say that you have been living there for about six (6) months?

A: More than a month.

Q: And therefore, you (sic) on the night of October 24, 1987, you are just paying a visit
to your friend?

A: Yes, sir.

Q: And that was the exact time when you were apprehended by the police?

A: Yes, sir.

(TSN, May 11, 1989, pp. 20-21).

Alibi is a weak defense, particularly, when it is not physically impossible for accused to be at the scene of the crime at the
time of its commission.9 In the case at bench, accused-appellant was at his friend's house, some eight meters away from
the place of the incident. He was arrested at nine o'clock, or thirty minutes after the robbery and rape had been committed.
It was, thus, not impossible for him to be at the scene of the crime.

All things considered, we hold that Opiniado Dolar is guilty beyond reasonable doubt of the crime of robbery with rape.
We note, however, that the trial court erred in sentencing him to life imprisonment. The penalty for
Robbery with Rape, pursuant to Article 294 (2) of the Revised Penal Code, is reclusion perpetua to death. The penalty
of reclusion perpetua is not synonymous with life imprisonment as the former entails imprisonment for at least thirty (30)
years and carries with it accessory penalties, whereas, the latter has no definite duration and does not carry any accessory
penalty.10

WHEREFORE, premises considered, the appealed decision is AFFIRMED WITH MODIFICATION that accused-
appellant Opiniado Dolar is meted the penalty of reclusion perpetua. Considering the perversity of the accused-appellant,
the civil indemnity in favor of Leny Reli is increased to forty thousand pesos (P40,000.00).11 Costs against accused-
appellant.

SO ORDERED.
[G.R. No. 116736. July 24, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN ORTEGA, JR. y CONJE, MANUEL
GARCIA y RIVERA and JOHN DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL
GARCIA y RIVERA, accused-appellants.

DECISION
PANGANIBAN, J.:

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

Statement of the Case

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

The Facts
Evidence for the Prosecution

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

Evidence for the Appellants

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

The Trial Courts Discussion

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

The Issues

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

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

The Courts Ruling

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

First Issue: Liability of Appellant Ortega

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

Murder or Homicide?

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

Second Issue: Liability of Appellant Manuel Garcia

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

Penalty and Damages

The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former amount was proven
both by documentary evidence and by the testimony of Melba Lozano, a sister of the victim.[40] Of the expenses alleged to
have been incurred, the Court can give credence only to those that are supported by receipts and appear to have been
genuinely incurred in connection with the death of the victim.[41] However, in line with current jurisprudence,[42] Appellant
Ortega shall also indemnify the heirs of the deceased in the sum of P50,000.00. Indemnity requires no proof other than the
fact of death and appellants responsibility therefor.[43]
The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which is imposable in
its medium period, absent any aggravating or mitigating circumstance, as in the case of Appellant Ortega. Because he is
entitled to the benefits of the Indeterminate Sentence Law, the minimum term shall be one degree lower, that is, prision
mayor.
WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is
found GUILTY of homicide and sentenced to ten (10) years of prision mayor medium, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is
also ORDERED to pay the heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant
Manuel Garcia is ACQUITTED. His immediate release from confinement is ORDERED unless he is detained for some
other valid cause.
SO ORDERED.
G.R. No. 211977, October 12, 2016

MARIANO LIM, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO JR., J.:

The Case

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Decision 1 dated
July 30, 2013 and Resolution2 dated February 28, 2014 of the Court of Appeals (CA), which affirmed the Decision3 dated
February 17, 2009 of the Regional Trial Court (RTC), Branch 8 in Davao City, convicting petitioner Mariano Lim (Lim)
for violating Presidential Decree No. 1612 (PD 1612), otherwise known as the Anti-Fencing Law of 1979.

The Facts

An Information dated June 27, 1997 charged Lim with the following:

chanRoblesvirtualLawlibrary
That on or about January 16, 1997, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court,
the above-mentioned accused, being then the proprietor of Basco Metal Supply located at Matina, Davao City, with intent
to gain for himself, wilfully (sic), unlawfully and feloniously purchased and received for P400,000.00 one (1); unit
komatsu Road Grader with Chassis Model and Serial No. GD-51R-100049 and bearing an (sic) Engine Serial Number
6D951-55845 owned by Second Rural Road Improvement Project (SRRIP) PMO-DPWH of Isulan, Sultan Kudarat, being
lodged for repair at the Facoma Compound of Poblacion Norala, South Cotabato, and possessed the same, knowing that
said Komatsu Road Grader was stolen, thereby committing an act of fencing in violation of the Anti-Fencing Law of
1979, to the damage and prejudice of the aforesaid complainant in its true value of P2,000[,]000.00.

CONTRARY TO LAW.4

Upon arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued.5chanrobleslaw

Version of the Prosecution

The prosecution presented two witnesses: (1) Engr. Herminio Gulmatico, the project engineer of the Second Rural Road
Improvement Project (SRRIP) PMO-DPWH of Isulan, Sultan Kudarat; and (2) SPO4 Alfredo T. Santillana. The
testimonies of the prosecution witnesses were summarized by the trial court, as follows:

chanRoblesvirtualLawlibrary
SPO4; Santillana testified that i. [S]ometime in January 1997, he was an investigator of the theft and robbery section of
Police Precinct No. 3, Talomo, Davao City; ii. [I]n the afternoon of January 31, 1997, Engr. Herminio Gulmatico went to
his office to seek assistance in the recovery of a Komatsu Road Grader bearing Engine Serial Number 6D951-55 845 and
Chassis No. GD-51R-100[0]49; iii. [H]e was informed by Gulmatico that said heavy equipment could be found at Basco
Metal Metal (sic) Supply along Me Arthur Highway, Davao City; iv. [T]his information was caused to be verified by the
station commander of said Police Precinct and after finding out that it was accurate, a search warrant was applied for; and
v. [T]he search warrant was served on Basco Metal Supply where the aforedescribed heavy equipment was found.

Engr. Gulmatico for his part testified that: i. [H]e is the project engineer of the [SRRIP] PMO-DPWH of Isulan, Sultan
Kudarat; ii. [O]n July 1, 1996, he received from Engineer Ireneo Veracion, the former project engineer, the aforesaid
heavy equipment; iii. [S]ometime in June of 1997 the heavy equipment was in the Facoma Compound in Norala, South
Cotabato undergoing repairs; iv. [Ajround the third week of January, ; 1997, he was. informed that the heavy equipment
was removed from that n compound by-Petronilo Banosing; v. [H]e was also told that the heavy equipment was loaded on
a ten wheeler truck and brought to DaVao City particularly at Km. 3 Me Arthur Highway; vi. [A]rmed with this
information tie proceeded to Davao City and sought the assistance of Talomo Police Precinct; vii. [T]he consequent
search warrant applied for by the police officers of that precinct was served on Basco Metal Supply where the heavy
equipment was found.6

Version of the Defense

On the other hand, petitioner was presented as the sole witness for the defense. The trial court summarized petitioner's
testimony, to wit:

chanRoblesvirtualLawlibrary
Accused Mariano Lim did not present testimonial evidence other than his and testified, thus: i. [H]e bought the heavy
equipment from Petronilo Banosing for Four Hundred Thousand (P400,000.00) Pesos; ii. Banosingsshowed him a
Certificate of Ownership that stated that the heavy equipment is his; and, iii. [H]e checked with the DPWH in Manila and
found out that the subject heavy equipment is not included in the inventory
ofequipmentoftheDPWH.7chanroblesvirtuallawlibrary

Ruling of the RTC

The RTC found Lim guilty beyond reasonable doubt of the crime of fencing under PD 1612, to wit:

chanRoblesvirtualLawlibrary
FOR THE FOREGOING[,] this Court finds accused[,] MARIANO LIM[,] GUILTY beyond reasonable doubt for
violation of Presidential Decree No. 1612 otherwise known as the Anti-Fencing Law of 1979 and applying the
Indeterminate Sentence Law, he is hereby sentenced to suffer the indeterminate penalty of imprisonment of
from TWELVE (12) YEARS of PRISION MAYOR as Minimum to EIGHTEEN (18) YEARS of RECLUSION
TEMPORAL as Maximum. Accused is also directed to indemnify the DPWH the amount of One Hundred Thousand
(P100,000.00) Pesos.

SO ORDERED.8

In imposing the penalty, the trial court applied the Indeterminate Sentence Law in relation to Section 3(a) of PD 1612,
based on its own valuation of the heavy equipment considering that the prosecution did not present any evidence on this
matter. The trial court set the value of the heavy equipment at one hundred thousand pesos (P100,000) after finding that
essential parts of the engine were already removed at the time of its discovery.

Aggrieved, petitioner appealed the case to the CA.

Ruling of the CA

On July 30, 2013, the appellate court rendered the assailed Decision upholding me filings of the trial court, the dispositive
portion of which reads:

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WHEREFORE, premises considered, the decision appealed from is hereby AFFIRMED in toto.

SO ORDERED.9chanroblesvirtuallawlibrary

Petitioner filed a Motion for Reconsideration but the CA denied the same in the assailed Resolution, ruling that the
arguments raised had already been considered and thoroughly discussed in the assailed Decision.

Hence, the present petition.

The Issues

Petitioner raised the following assignment of errors:

chanRoblesvirtualLawlibrary
I.
WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING THE PETITIONER
FOR VIOLATION OF PRESIDENTIAL DECREE NO. 1612, OTHERWISE KNOWN AS THE ANTI-FENCING LAW
OF 1979 BECAUSE THE CRIME OF THEFT HAS NOT BEEN PROVEN IN COURT AND THE PERSON ACCUSED
OF THEFT IS AT-LARGE OR A FUGITIVE FROM JUSTICE.

II.

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING THE PETITIONER
NOTWITHSTANDING THE FACT THAT HE IS A PURCHASER FOR VALUE AND IN GOOD FAITH, WITHOUT
INTENT TO GAIN.

III.

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED WHEN IT CONSIDERED THE
MEMORANDUM RECEIPT OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS AS EVIDENCE OF
OWNERSHIP OF THE KOMATSU ROAD GRADER.

IV.

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING THE PETITIONER
EVEN IF HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.10

In its Comment,11 public respondent raised the following issues:

chanRoblesvirtualLawlibrary
I.

ALL THE ELEMENTS FOR THE OFFENSE OF VIOLATION OF THE ANTI-FENCING LAW AND THE GUILT OF
PETITIONER WERE ESTABLISHED AND PROVED BY THE PROSECUTION BEYOND REASONABLE DOUBT.

II.

THE FACTUAL ISSUES RAISED BY PETITIONER DO NOT FALL UNDER THE RECOGNIZED EXCEPTIONS
TO THE RULE THAT ONLY QUESTIONS OF LAW MAY BE ENTERTAINED IN A PETITION FOR REVIEW ON
CERTIORARI UNDER RULE 45 OF THE RULES OF COURT.

The basic issue in the instant case is whether or not the CA erred in sustaining the petitioner's conviction. Central to
resolving this issue is determining whether or not the elements of the crime of fencing were established by the
prosecution.

The Court's Ruling

The petition is impressed with merit.

The following are the essential elements of the crime of fencing:

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1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object
or anything of value, which has been derived from the proceeds of the said crime;

3. The accused knows or should have known that the said article, item, object or anything of value has been derived from
the proceeds of the crime of robbery or theft; and:
chanRoblesvirtualLawlibrary4. There is on the part of the accused, intent to gain for himself or for another.12

In the present case, the trial court relied heavily on the testimony of Engr. Gulmatico in finding that all elements of
fencing exist. The trial court said:

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In the instant case the Court finds that the prosecution has established the existence of the first, second, third and fourth
elements. A theft was committed when Petronilo Banosing took subject (sic) heavy equipment from Facoma Compound
in Norala, South Cotabato on January 16, 1997 and a Case for Theft or Criminal Case No. 275 was filed. The stolen heavy
Equipment, after a search warrant was issued, was found in the premises of Basco Metal Supply owned by the accused,
Mariano Lim, located at Km 3, Matina, Davao City. Basco Metal Supply is in the business of buying used
equipment.13chanroblesvirtuallawlibrary

This Court has honored the principle that an appeal in a criminal case opens the whole action for review on any question
including those not raised by the parties. The reason for this rule is that every circumstance in favor of the accused should
be considered.14chanrobleslaw

After a careful and thorough review of the records, we are convinced that the trial court erred in convicting herein
petitioner.

On the first element, we find that the prosecution failed to establish that theft had been committed.

Theft tinder Article 308 of the Revised Penal Code has been defined as the taking of someone's property without the
owner's consent, for his personal gain, and Without committing any violence against or intimidation of persons or force,
upon things. The elements of theft are: (1) that there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and
(5) that the taking be accomplished without the Use of violence against or intimidation of persons or force upon
things.15chanrobleslaw

While the CA correctly ruled that conviction of the principal in the crime of theft is not necessary for an accused to be
found guilty of the crime of fencing, we disagree with its ruling that the prosecution sufficiently proved the DPWH's
ownership of the Komatsu Grader.

During trial, the prosecution presented the testimony of Engr. Gulmatico, the project engineer for the SRRIP of the
DPWH. Engr. Gulmatico testified on his discovery of the theft of one unit lyomatsu Road Grader with engine number
GD95L-558I45 allegedly owned by the DPWH. However, except for his statement that the subject' grader was procured
by his office, Engr. Gulmatico failed to establish his or his office's ownership over the subject grader. Thus:

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PROS. BELO

Q The subject of this case for violation of Anti Fencing law against the person of Mr. Mariano Lim is a one unit
Komatsu Road Grader with engine number GD95L-55845, can you tell us if you are familiar with this particular unit?

A Actually, this grader was assigned to us sometime [in] 1989 it [was] lost 10 years after.

Q Tell us who was the accountable officer of this particular unit when it was lost?

A It was already M.R. to me during that time.

Q Do you have any evidence that the same unit (sic) or there was a Memorandum Receipt already issued to you?

A Yes, sir.

Q I am showing to you a document already marked as Exhibit "A" for the prosecution, tell us if this is the document,
[M]emorandum Receipt you are referring to?

A Yes, sir.

Q May we pray, Your Honor, that the item indicated/described in this Memorandum Receipt be ordered marked as
Exhibit "A-1". (So marked)

Q From whom did you receive this unit of which a Memorandum Receipt was issued to you?

A From the previous project engineer, sir.

Q There is a signature appearing over the name GERMENIO GULMATICO, tell us whose signature that, is that your
signature?

A Yes, sir, that is my signature.

Q This signature indicates that you received the item under your accountability?

A Yes, sir.16

On cross-examination, Engr. Gulmatico admitted that he received no confirmation from the DPWH Manila office as to
who purchased the subject grader:

chanRoblesvirtualLawlibrary
ATTY. CHUA

Q You [are] also aware Mr. Witness that there are no markings because the unit was originally purchased by the World
Bank?

A Actually, sir, there are markings we have engraved before but because the equipment was continuously used, it got
erased, sir, we have three dump trucks, we have many equipments and we have marked it DPWH but because of the
time that had past it got erased and considering the manner and the job that we are using it. Actuary, the front of the
grader [is] marked SRRIP, during that time but at that time that it was lost, it was erased when it was turned over to
us.

Q But [can you] reiterate the fact that when it was MR to you there was no identification marks?

A Yes.

Q And of course you are not the person who erased those marks?

A Yes.

Q And you also admit going back to my earlier question that this unit was purchased by the World Bank?

A I don't know, sir what was the condition with our Office at Manila but as far as I know that our project was funded by
the World Bank and I mink the procurement was done in Manila, so it might be the World Bank or at the request of
our office as funded by the World Bank.

Q But you will admit that this particular SRRIP project was funded by the World Bank?

A Yes, sir.

Q Did you try to check with your DEPO in Cotabato City or in your Port Area Office in Manila whether this particular
unit was one of those listed in the inventory of the DPWH, did you check?

A Actually, sir, I have some request in Manila that they will furnish u^ the original acquisition cost but the people in
Manila do hot give us time to that thing (sic), perhaps this might be the third time that I will have to request so that
our Office can avail of those things and we can say further about it, sir.

Q Did you not try to write or inquire from the Project Director Paliamen Mamaente of the Project Management Office
of your department in port area whether this unit w,as actually purchased by the World Bank?

A Yes, I have, sir.

Q What was the reply of project Director Mamaente, if any?

A I did not receive any [reply], sir.17 x x x

Even the Memorandum Receipt submitted by the prosecution and relied upon by the trial court is wanting. Nowhere in the
Memorandum Receipt does it state that the subject grader is owned by the DPWH. The portions which should show the
date acquired, property number, classification number, and unit value for the grader, were left blank. At best, the
Memorandum Receipt is a mere indicator that the subject grader was received by Engr. Gulmatico for his safekeeping arid
responsibility.

Being the government agency in charge of construction projects, the DPWH is expected to have a database of all
equipment and materials it uses for easy reference of its employees. The prosecution's failure to present a sufficient proof
of ownership of the grader despite the many opportunities it had to do so places doubt on the DPWH's claim of
ownership. Thus, it cannot be said that the first element of fencing had been established.

In fact, the prosecution even failed to conclusively establish that the grader had been stolen. Engr. Gulmatico's testimony
on the alleged act of theft should not be given any weight considering that he had no personal knowledge of the actual
theft. Most, if not his entire testimony, consisted of hearsay evidence as he relied mostly on the information given to him
by various persons, to wit:

chanRoblesvirtualLawlibrary
PROS. BELO

Q While under your accountability, can you recall if anything happened [with] this particular unit?

A On January 26, 1997, I was informed by my driver that this said grader was previously lodged for repair in the
compound of Petronilo Banosing in the evening of January 26, 1997.

Q Can you still recall who informed you of the taking of this unit by one Petronilo Banosing?

A Yes, sir, it was my driver because I [told] him to visit once in a while our area in Nohralla.

Q Can you tell us what is the name of the driver?

A Yes, Venecio Calderon.

xxxx

Q After you were informed of the fact that the item subject of this case was stolen, what action if any, did you take?

A During, the filing of the case, we [waited] for almost two days and during that time, Mr. Basilio Elaga, owner of the
Pakoma Compound informed me that a Ten Wheeler Truck coming from Isulan was the transportation used in
taking that grader, so after two days of filing, we contacted all operators in Isulan and we found out a ten wheeler
truck with plate no. MB8116 driven by Mr. Ricardo Mamon and being assisted by Mr. Digdigan as the grader was
being transported to [an] unknown place.

Q Were you able to determine thereafter as to where the item was brought?
A When I conducted a thorough investigation and inquiries to the truck helper, heinformed me that said grader was
transported to Davao City, particularly it was dropped down at Km. 3, Mac Arthur Highway, Matina, Davao City.18x
x x (Emphasis supplied)

Even upon clarificatory questioning by the trial court judge, Engr. Gulmatico's answers were still based on information
provided to him by third persons, as follows:

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COURT

Q You said that you first learned of the fact of its having been stolen when your driver informed you that it
was so stolen?

A Yes.

Q After you received this information from your driver, ybu made inquiries as regards how it was stolen from the
Pacoma Compound?

A Yes.

Q And the results of your inquiries showed that it was taken by a [ten] wheeler driven by Ricardo Mamon who
[was] accompanied by Ronnie Digdigan?

Q After receiving this information, you were able to talk to this people?

A No, it was only Ronnie Digdigan, the helper.

Q This Digdigan informed you that the grader was transported to Davao City?

A Yes.

Q He specified to whom it was delivered?

A Yes, he told us that he dropped it at the compound near Robin Marketing at Km. 3, Matina, Davao City.

Q Did you ask from Digdigan who hired them to transport this grader?

A Yes.

Q What did Digdigan tell you?

A He told me that it was Nilo Banosing who, hired them to get it from Pacoma.19 x x x (Emphasis supplied)

Sec. 36, Rule 130 of the Rules of Court provides that witnesses can testify only with regard to facts of which they have
personal knowledge; otherwise, their testimonies would be inadmissible for being hearsay.20 Evidence is hearsay when its
probative force depends on the competency and credibility of some persons other than the witness by whom it is sought to
be produced. The exclusion of hearsay evidence is anchored on three reasons: (1) absence of cross-examination; (2)
absence of demeanor evidence; and (3) absence of oath.21chanrobleslaw

Consequently, hearsay evidence, whether objected to or not, has no probative value unless it is shown that the evidence
falls within any of the exceptions to the hearsay rule as provided in the Rules of Court.22 However, none of the exceptions
applies to the present case.

A cursory reading of Engr. Gulmatico's testimony shows that his statements pertaining to the alleged theft are all based on
information which he claims to have received from third persons, all of whom were never presented to testify under oath
in court. Thus, it was erroneous for the trial court to give probative value on Engr. Gulmatico's testimony considering that
the truth and credibility of such statements cannot be ascertained for being mere hearsay.

Even assuming arguendo that theft had been committed, the third element of fencing is wanting in this case.

In ruling that petitioner knew or should have known that the grader was the object of theft, the trial court held that
petitioner was unable to rebut the presumption under PD 1612, thus:

chanRoblesvirtualLawlibrary
Accused was unable to rebut the presumption under PD1612. The Certificate of Ownership executed by seller is
unavailing. Suffice it to state that said document being self-serving should not have been relied upon by the accused. It
might even be stated that this document should have made him even more wary that the seller did not own the heavy
equipment sold to him. The unauthenticated list of equipment purportedly prepared by the DPWH that did not include the
heavy equipment and submitted by the accused as part of his defense is also unavailing. Put simply, he verified with the
DPWH its ownership of the heavy equipment long after the instant case was filed. What is more, the list he presented was
merely a photocopy whose authenticity is doubtful. Under Section 6 of PD 1612, what he should have done was to secure
a clearance/permit from the police.23

The trial court ruled that petitioner should not have relied upon the Certificate of Ownership presented by Banosing as it is
self-serving. Instead, petitioner should have secured a clearance or permit from the police, in compliance with Sec. 6 of
PD 1612.

The CA went even further and placed the burden on petitioner, stating:

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In this, case, the accused-appellant is engaged in buying and selling equipment as[ the proprietor of Basco Metal Supply.
As a businessman who regularly engaged in buying and selling equipment, the accused-appellant should have exercised
more diligence and prudence in ascertaining whether Petronilo Ban[o]sing was indeed the real owner of the Komatsu
Grader. Moreover, the circumstances of the sale should have put the accused-appellant on guard and should have impelled
him to exercise more caution in dealing with Petronilo Ban[o]sing who was selling not an ordinary run down equipment
but a heavy duty Komatsu grader which can only be owned by a select few who engage in land development. Instead, the
accused-appellant simply relied on the Affidavit of Ownership and the representations of Petronilo Ban[o]sing that he was
a contractor, which is but a last ditch attempt, albeit futile, to exculpate himself from criminal liability.24

We disagree.

On the presumption that fencing had been committed as provided by Sec. 5 of PD 1612, we rule that petitioner was able to
overcome the same upon his presentation of the Affidavit of Ownership which he secured from, Petronilo Banosing.

Both the RTC and the CA failed to consider that the Affidavit of Ownership given by Petronilo Banosing to petitioner was
a duly notarized document which, by virtue of its notarization, enjoys a presumption of regularity, as elaborated
in Ocampo v. Land Bank of the Philippines:

It is well settled that a document acknowledged before a notary public is a public document that enjoys the presumption of
regularity. It is a prima facie evidence of the truth of the facts stated therein and a conclusive presumption of its existence
and due execution. To overcome this presumption, there must be presented evidence that is clear and convincing. Absent
such evidence, the presumption must be upheld. In addition, one who denies the due execution of a deed where one's
signature appears has the burden of proving that contrary to the recital in the jurat, one never appeared before the notary
public arid acknowledged the deed to be a voluntary act. We have also held that a notarized instrument is admissible in
evidence without further proof of its due execution and is Conclusive as to the truthfulness of Its contents, and has in its
favor the presumption of regularity.25cralawred (citations omitted)

Respondent argues that the presumption of regularity of the notarized Affidavit of Ownership had been overturned. We
rule otherwise. As pointed out by respondent, to overcome the presumption of regularity of notarized documents, it is
necessary to contradict it with "evidence that is clear, convincing and more than merely preponderant." Contrary to
respondent's assertion, the ownership of the subject grader was not conclusively established by the prosecution As earlier
stated, Engr. Gulmatico was unable to confirm its ownership in his testimony. Further, the Memorandum Receipt also
failed to establish this. Despite the many opportunities to submit additional proof of ownership, the prosecution failed to
do so.

The trial court also erred in applying Sec. 6 of PD 1612 to the present case:

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While one who is in possession of the proceeds of robbery or theft is presumed to have knowledge of the fact that said
items were Stolen or (sic) PD 1612 provides a safeguard or a protection for a would be buyer of second hand articles.
Thus, Section 6 of said law provides:ChanRoblesVirtualawlibrary
"SEC. 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this Act, all stores, establishments or
entities dealing in the buy and sell of any good, article item, object of anything of value obtained from an unlicensed
dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit
from the station commander of the Integrated National Police in the town or city where such store, establishment or entity
is located. The Chief of Constabulary/Director General, Integrated National Police shall promulgate such rules and
regulations to carry out the provisions of this section. Any person who fails to secure the clearance or permit required by
this section or who violates any of the provisions of the rules and regulations promulgated thereunder shall upon
conviction be punished as a fence."
The aforequoted section simply means that a person who is engaged in the buying and selling of an item from an
unlicensed dealer or supplier shall, before offering the same for sale to the public[,] secure the necessary clearance or
permit from the station commander of the Integrated National Police in the town or city where such establishment or
entity is located and any person who fails to secure the clearance or permit required by |his section, shall upon conviction
be punished as a fence, (underscoring in the original)

x x x Under Section 6 of PD 1612, what he should have done was to secure a clearance/permit from the police.26

It appears that both the RTC and the CA ruled that petitioner should have first secured a Clearance or a permit from the
police, in compliance with Sec. 6 of PD 1612. However, said provision is inapplicable to the present case.

Sec. 6 of PD 1612 provides:

chanRoblesvirtualLawlibrarySEC. 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this Act, all
stores, establishments or entities dealing in the buy and sell of any good, article, item, object or anything of
value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public,
secure the necessary clearance or permit from the station commander of the Integrated National Police in" the town or city
where such store, establishment or entity is located. The Chief of Constabulary/Director General, Integrated National
Police shall promulgate such rules and regulations to carry out the provisions of this section. Any person who fails to
secure the clearance or permit required by this, section or who violates any of the provisions of the rules and regulations
promulgated thereunder shall upon conviction be punished as a fence, (Emphasis supplied)

Clearly, the clearance stated in Sec. 6 of PD 1612 is only required if several conditions, are met: first, that the person,
store, establishment or entity is in the business of buying and selling of any good, articles item object, or anything of
value; second, that such thing of value was obtained from an unlicensed dealer or supplier thereof; and third, that such
thing of value is to be offered for sale to the public.

In the present case, the first and third requisites were not met. Nowhere was it established that petitioner was engaged in
the business of buy and sell. Neither was the prosecution able to establish that petitioner intended to sell or was actually
selling the subject grader to the public.

During his cross-examination, petitioner testified:

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PROS. SEPULVEDA

Q What business are you engaged in?

A I am buying used equipment.


Q Such as grader?

A Yes.27

Despite the lack of evidence supporting such conclusion, the CA even made a presumption that petitioner was engaged in
the business of buy and sell in the assailed Decision, thereby erroneously applying Sec. 6, to wit:

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In this case, the accused-appellant is engaged in buying and selling equipment as the proprietor of Basco Metal
Supply. As a businessman who regularly engaged in buying and selling equipment, the accused-appellant should have
exercised more diligence and prudence in ascertaining whether Petronilo Ban[o]sing was indeed the real owner of the
Komatsu Grader, x x x

xxx The accused-appellant, who is engaged in the business of buying and selling equipment, clearly purchased the
Komatsu Grader (sic) with the intention of re-selling the grader and its parts for profit.28

It is puzzling how the CA arrived at this conclusion when nowhere in the testimonies of the witnesses was it shown that
petitioner intended to resell the subject grader to the public. The fact that the subject grader was not intended to be sold to
the public is even further bolstered by the prosecution's witnesses' discovery that the grader was found in several pieces
and in different locations within petitioner's compound. Thus, it was erroneous for the CA to make such a conclusion
when the evidence presented does not support it.

Furthermore, requiring petitioner to secure the police certification is an act of futility considering that at the time when the
subject grader was being offered to petitioner, no police report of the alleged theft has yet been made. To recall, petitioner
purchased the subject grader from Petronilo Banosing on January 17, 1997, as evidenced by the Deed of Sale of the same
date.29 Yet, it was only on January 26, 1997 that Engr. Gulmatico discovered the alleged theft:

chanRoblesvirtualLawlibrary

PROS. BELO

Q While under your accountability, can you recall if anything happened in this particular unit?

A On January 26, 1997, Iwas informed by my driver that this said graderr was previously lodged for repair in the
compound of Petronilo Banosing in the evening of January 26, 1997.30

Engr. Gulrriatico further testified that he only reported the matter to the police on January 27, 1997, or 10 days after the
subject grader was already sold to herein petitioner, as follows:

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PROS. BELO

Q After you were informed that this was taken by somebody, what action, if any, did you take?

A January 26 was a Monday so I went to the district the next day to file a case or gather information (sic) about the
Nohralla and after the inquest there we found out that one Petronilo Banosing was the culprit and we filefd] a case
against him before Judge Ayko.31

Thus, 'even if petitioner had secured -the police clearance in compliance with Sec. 6 of PD 1612, it would not have shown
that the grader was stolen since no theft had yet been reported at that time.

It is also worthy to note that, due to the prosecution's failure to present any evidence on the grader's actual value, the trial
court assessed its value at one hundred thousand pesos (P100,000) since parts of the engine were already, missing at the
time of its recovery. However, petitioner testified that he paid Petronilo Banosing the amount of four hundred thousand
pesos (P400,000). The disparity in the assessed value of the grader and the amount paid by petitioner would show that
petitioner believed in good faith in the representations of Petronilo Banosing. Indeed, it is contrary to common human
experience for a businessman to pay a consideration much higher than the actual value of an item unless he was made to
believe otherwise.

Finally, we- find that the conviction of petitioner violated his constitutional right to be informed of the nature and cause of
tne accusation against him.

In Ariddya v. People of the Philippines,32 we ruled that:

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It is fundamental that every element constituting Jhe offense must be alleged in the information. The main purpose of
requiring the various elements of a crime to be set out in the information is to enable the accused to suitably prepare his
defense because he is presumed to have no independent knowledge of the facts that constitute the offense. The allegations
of facts constituting the offense charged are substantial matters and an accused's right to question his conviction based on
facts not alleged in the information cannot be waived. No matter how conclusive and convincing the evidence of guilt
may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is
necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the
ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the
information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused
so much so that it affects his substantial rights.

The Information charging petitioner reads:

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That on or about January 16, 1997, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court,
the above-mentioned accused, being then the proprietor of Basco Metal Supply located at Matina, Davao City, with intent
to gain for himself, wilfully (sic), unlawfully and feloniously purchased and received for P400,000.00 one (1) unit
Komatsu Road Grader with Chassis Model and Serial No. GD-51R-100049 and bearing an (sic) Engine Serial Number
6D951-55845 owned by Second Rural Road Improvement Project (SRRIP) PMO-DPWH of Isulan, Sultan Kudarat, being
lodged for repair at the' Facoma Compound of Poblacion Norala, South Cotobato, and possessed the same, knowing that
said Komatsu Road Grader was stolen, thereby committing an act of fencing in violation of the Anti-Fencing Law of
1979, to the damage and prejudice of the aforesaid complainant in its true value of P2,000[,]000.00.

CONTRARY TO LAW.33 (Emphasis supplied)

The Information presumes that petitioner knew of the alleged theft of the subject grader, pertaining to the first part of the
third element of the crime of fencing, to wit:

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3. The accused knows or should have known that the said article, item, object or anything of value has been derived
from, the proceeds of the crime of robbery or theft.34(Emphasis supplied)

The trial court, however, convicted petitioner on the ground that he should have known that the subject grader was derived
from the proceeds of theft, pertaining to the second part of the third element:

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Accused was unable to rebut the presumption under PD1612. The Certificate of Ownership executed by seller is
unavailing. Suffice it to state that said document being self-serving should not have been relied upon by the Reused. It
might even be stated that this document should have made him even more wary that the seller did not own the
heavy equipment sold to him. The unauthenticated list of equipment purportedly prepared by the DPWH that did not
include the heavy equipment aid submitted by the accused as part of his defense is also unavailing. Put simply, he verified
with the DPWH its ownership of the heavy equipment long after the instant case was filed. What is more, the list he
presented was merely a photocopy whose authenticity is doubtful. Under Section 6 of PD 1612, what he should have done
was to secure a clearance/permit from the police.35(Emphasis supplied)
From the foregoing, we find that the CA erred in affirming the trial court's findings and in convicting herein petitioner. It
is necessary to remember that in all criminal prosecutions, the burden of proof is on the prosecution to establish the guilt
of the accused beyond reasonable doubt. It has the duty to prove each and every element of the crime charged in the
information to warrant a finding of guilt for the said crime.36 Furthermore, the information must correctly reflect the
charges against the accused before any conviction may be made.

In the case at bar, the prosecution failed to prove the first and third essential element of the crime charged in the
information. Thus, petitioner should be acquitted due to insufficiency of evidence and reasonable doubt.

WHEREFORE, the Decision dated July 30, 2013 and the Resolution dated February 28, 2014 of the Court of Appeals in
CA-G.R. CR No. 00740-MIN, affirming the Decision dated February 17, 2009 issued by the Regional Trial Court of
Davao City, Branch 8, which found petitioner Mariano Lim guilty beyond reasonable doubt of violating Presidential
Decree No. 1612, otherwise known as the Anti-Fencing Law of 1979, are hereby REVERSED and SET ASIDE.
Petitioner Mariano Lim is hereby ACQUITTED based on insufficiency of evidence and reasonable doubt.

SO ORDERED.chanRoblesvirtualLawlibrary