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Decision

EN BANC

[G.R. No. 153559. June 8, 2004.]

PEOPLE OF THE
PHILIPPINES, appellee, vs. ANTONIO
COMADRE, GEORGE COMADRE and
DANILO LOZANO, appellants.
 DECISION

PER CURIAM : p

Appellants Antonio Comadre, George Comadre and

Danilo Lozano were charged with Murder with Multiple
Frustrated Murder in an information which reads:
That on or about the 6th of August 1995,
at Brgy. San Pedro, Lupao, Nueva Ecija,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring, confederating and mutually helping
one another, with intent to kill and by means of
treachery and evident premeditation, availing of
nighttime to afford impunity, and with the use of
an explosive, did there and then willfully,
unlawfully and feloniously lob a hand grenade
that landed and eventually exploded at the roof
of the house of Jaime Agbanlog trajecting
deadly shrapnels that hit and killed one
ROBERT AGBANLOG, per the death certificate,
and causing Jerry Bullanday, Jimmy Wabe,
Lorenzo Eugenio, Rey Camat, Emelita
Agbanlog and Elena Agbanlog to suffer
shrapnel wounds on their bodies, per the
medical certificates; thus, to the latter victims,
the accused commenced all the acts of
execution that would have produced the crime
of Multiple Murder as consequences thereof but
nevertheless did not produce them by reason of
the timely and able medical and surgical
interventions of physicians, to the damage and
prejudice of the deceased’s heirs and the other
victims.
CONTRARY TO LAW. 1
On arraignment, appellants pleaded “not
guilty”. 2 Trial on the merits then ensued.
As culled from the records, at around 7:00 in the
evening of August 6, 1995, Robert Agbanlog, Jimmy
Wabe, Gerry Bullanday, 3 Rey Camat and Lorenzo
Eugenio were having a drinking spree on the terrace of
the house of Robert’s father, Barangay Councilman Jaime
Agbanlog, situated in Barangay San Pedro, Lupao, Nueva
Ecija. Jaime Agbanlog was seated on the banister of the
terrace listening to the conversation of the companions of
his son. 4
As the drinking session went on, Robert and the
others noticed appellants Antonio Comadre, George
Comadre and Danilo Lozano walking. The three stopped
in front of the house. While his companions looked on,
Antonio suddenly lobbed an object which fell on the roof of
the terrace. Appellants immediately fled by scaling the
fence of a nearby school. 5
The object, which turned out to be a hand grenade,
exploded ripping a hole in the roof of the house. Robert
Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and
Lorenzo Eugenio were hit by shrapnel and slumped
unconscious on the floor. 6 They were all rushed to the
San Jose General Hospital in Lupao, Nueva Ecija for
medical treatment. However, Robert Agbanlog died
before reaching the hospital. 7TaDSHC

Dr. Tirso de los Santos, the medico-legal officer

who conducted the autopsy on the cadaver of Robert
Agbanlog, certified that the wounds sustained by the
victim were consistent with the injuries inflicted by a
grenade explosion and that the direct cause of death was
hypovolemic shock due to hand grenade explosion. 8 The
surviving victims, Jimmy Wabe, Rey Camat, Jaime
Agbanlog and Gerry Bullanday sustained shrapnel
injuries. 9
SPO3 John Barraceros of the Lupao Municipal
Police Station, who investigated the scene of the crime,
recovered metallic fragments at the terrace of the
Agbanlog house. These fragments were forwarded to the
Explosive Ordinance Disposal Division in Camp Crame,
Quezon City, where SPO2 Jesus Q. Mamaril, a specialist
in said division, identified them as shrapnel of an MK2
hand grenade. 10
Denying the charges against him, appellant Antonio
Comadre claimed that on the night of August 6, 1995, he
was with his wife and children watching television in the
house of his father, Patricio, and his brother, Rogelio. He
denied any participation in the incident and claimed that
he was surprised when three policemen from the Lupao
Municipal Police Station went to his house the following
morning of August 7, 1995 and asked him to go with them
to the police station, where he has been detained since. 11
 Appellant George Comadre, for his part, testified
that he is the brother of Antonio Comadre and the
brother-in-law of Danilo Lozano. He also denied any
involvement in the grenade-throwing incident, claiming
that he was at home when it happened. He stated that he
is a friend of Rey Camat and Jimmy Wabe, and that he
had no animosity towards them whatsoever. Appellant
also claimed to be in good terms with the Agbanlogs so he
has no reason to cause them any grief. 12
Appellant Danilo Lozano similarly denied any
complicity in the crime. He declared that he was at home
with his ten year-old son on the night of August 6, 1995.
He added that he did not see Antonio and George
Comadre that night and has not seen them for quite
sometime, either before or after the incident. Like the two
other appellants, Lozano denied having any
misunderstanding with Jaime Agbanlog, Robert Agbanlog
and Jimmy Wabe. 13
Antonio’s father, Patricio, and his wife, Lolita,
corroborated his claim that he was at home watching
television with them during the night in question. 14 Josie
Comadre, George’s wife, testified that her husband could
not have been among those who threw a hand grenade at
the house of the Agbanlogs because on the evening of
August 6, 1995, they were resting inside their house after
working all day in the farm. 15
After trial, the court a quo gave credence to the
prosecution’s evidence and convicted appellants of the
complex crime of Murder with Multiple Attempted
Murder, 16 the dispositive portion of which states:
WHEREFORE, in view of the foregoing,
judgment is hereby rendered:
1. Finding accused Antonio Comadre, George
Comadre and Danilo Lozano GUILTY
beyond reasonable doubt of the complex
crime of Murder with Multiple Attempted
Murder and sentencing them to suffer
the imposable penalty of death;
2. Ordering Antonio Comadre, George
Comadre and Danilo Lozano to pay
jointly and severally the heirs of Robert
Agbanlog P50,000.00 as indemnification
for his death, P35,000.00 as
 compensatory damages and P20,000.00
as moral damages;
3. Ordering accused Antonio Comadre, George
Comadre and Danilo Lozano to pay
jointly and severally Jimmy Wabe, Rey
Camat, Gerry Bullanday and Jaime
Agbanlog P30,000.00 as indemnity for
their attempted murder.
Costs against the accused.
SO ORDERED.
Hence, this automatic review pursuant to Article 47
of the Revised Penal Code, as amended. Appellants
contend that the trial court erred: (1) when it did not
correctly and judiciously interpret and appreciate the
evidence and thus, the miscarriage of justice was
obviously omnipresent; (2) when it imposed on the
accused-appellants the supreme penalty of death despite
the evident lack of the quantum of evidence to convict
them of the crime charged beyond reasonable doubt; and
(3) when it did not apply the law and jurisprudence for the
acquittal of the accused-appellants of the crime
charged. 17
Appellants point to the inconsistencies in the sworn
statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio
and Gerry Bullanday in identifying the perpetrators. Wabe,
Camat and Eugenio initially executed a Sinumpaang
Salaysay on August 7, 1995 at the hospital wherein they
did not categorically state who the culprit was but merely
named Antonio Comadre as a suspect. Gerry Bullanday
declared that he suspected Antonio Comadre as one of
the culprits because he saw the latter's ten year-old son
bring something in the nearby store before the explosion
occurred.
On August 27, 1995, or twenty days later, they went
to the police station to give a more detailed account of the
incident, this time identifying Antonio Comadre as the
perpetrator together with George Comadre and Danilo
Lozano.
A closer scrutiny of the records shows that no
contradiction actually exists, as all sworn statements
pointed to the same perpetrators, namely, Antonio
Comadre, George Comadre and Danilo Lozano.
Moreover, it appears that the first statement was executed
a day after the incident, when Jimmy Wabe, Rey Camat
and Lorenzo Eugenio were still in the hospital for the
injuries they sustained. Coherence could not thus be
expected in view of their condition. It is therefore not
surprising for the witnesses to come up with a more
exhaustive account of the incident after they have
regained their equanimity. The lapse of twenty days
between the two statements is immaterial because said
period even helped them recall some facts which they
may have initially overlooked.
Witnesses cannot be expected to remember all the
details of the harrowing event which unfolded before their
eyes. Minor discrepancies might be found in their
testimony, but they do not damage the essential integrity
of the evidence in its material whole, nor should they
reflect adversely on the witness’ credibility as they erase
suspicion that the same was perjured. 18 Honest
inconsistencies on minor and trivial matters serve to
strengthen rather than destroy the credibility of a witness
to a crime, especially so when, as in the instant case, the
crime is shocking to the conscience and numbing to the
senses. 19
Moreover, it was not shown that witnesses Jimmy
Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday
had any motive to testify falsely against appellants.
Absent evidence showing any reason or motive for
prosecution witnesses to perjure, the logical conclusion is
that no such improper motive exists, and their testimony is
thus worthy of full faith and credit.
The trial court is likewise correct in disregarding
appellants’ defense of alibi and denial. For the defense of
alibi to prosper, the accused must prove not only that he
was at some other place at the time of the commission of
the crime but also that it was physically impossible for him
to be at the locus delicti or within its immediate vicinity. 20

Apart from testifying with respect to the distance of

their houses from that of Jaime Agbanlog's residence,
appellants were unable to give any explanation and
neither were they able to show that it was physically
impossible for them to be at the scene of the crime. Hence,
the positive identification of the appellants by
eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat
and Gerry Bullanday prevails over their defense of alibi
and denial. 21
It was established that prior to the grenade
explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe and
Gerry Bullanday were able to identify the culprits, namely,
appellants Antonio Comadre, George Comadre and
Danilo Lozano because there was a lamppost in front of
the house and the moon was bright. 22
Appellants’ argument that Judge Bayani V. Vargas,
the Presiding Judge of the Regional Trial Court of San
Jose City, Branch 38 erred in rendering the decision
because he was not the judge who heard and tried the
case is not well taken.
It is not unusual for a judge who did not try a case to
decide it on the basis of the record for the trial judge might
have died, resigned, retired, transferred, and so
forth. 23 As far back as the case of Co Tao v. Court of
Appeals 24 we have held: “The fact that the judge who
heard the evidence is not the one who rendered the
judgment and that for that reason the latter did not have
the opportunity to observe the demeanor of the witnesses
during the trial but merely relied on the records of the case
does not render the judgment erroneous.” This rule had
been followed for quite a long time, and there is no reason
to go against the principle now. 25
However, the trial court’s finding of conspiracy will
have to be reassessed. The undisputed facts show that
when Antonio Comadre was in the act of throwing the
hand grenade, George Comadre and Danilo Lozano
merely looked on without uttering a single word of
encouragement or performed any act to assist him. The
trial court held that the mere presence of George
Comadre and Danilo Lozano provided encouragement
and a sense of security to Antonio Comadre, thus proving
the existence of conspiracy.
We disagree.
Similar to the physical act constituting the crime
itself, the elements of conspiracy must be proven beyond
reasonable doubt. Settled is the rule that to establish
conspiracy, evidence of actual cooperation rather than
mere cognizance or approval of an illegal act is
required. 26
 A conspiracy must be established by positive and
conclusive evidence. It must be shown to exist as clearly
and convincingly as the commission of the crime itself.
Mere presence of a person at the scene of the crime does
not make him a conspirator for conspiracy transcends
companionship. 27
The evidence shows that George Comadre and
Danilo Lozano did not have any participation in the
commission of the crime and must therefore be set free.
Their mere presence at the scene of the crime as well as
their close relationship with Antonio are insufficient to
establish conspiracy considering that they performed no
positive act in furtherance of the crime.
Neither was it proven that their act of running away
with Antonio was an act of giving moral assistance to his
criminal act. The ratiocination of the trial court that “their
presence provided encouragement and sense of security
to Antonio,” is devoid of any factual basis. Such finding is
not supported by the evidence on record and cannot
therefore be a valid basis of a finding of conspiracy.
Time and again we have been guided by the
principle that it would be better to set free ten men who
might be probably guilty of the crime charged than to
convict one innocent man for a crime he did not
commit. 28 There being no conspiracy, only Antonio
Comadre must answer for the crime.
Coming now to Antonio’s liability, we find that the
trial court correctly ruled that treachery attended the
commission of the crime. For treachery to be appreciated
two conditions must concur: (1) the means, method and
form of execution employed gave the person attacked no
opportunity to defend himself or retaliate; and (2) such
means, methods and form of execution was deliberately
and consciously adopted by the accused. Its essence lies
in the adoption of ways to minimize or neutralize any
resistance, which may be put up by the offended party.
Appellant lobbed a grenade which fell on the roof of
the terrace where the unsuspecting victims were having a
drinking spree. The suddenness of the attack coupled with
the instantaneous combustion and the tremendous impact
of the explosion did not afford the victims sufficient time to
scamper for safety, much less defend themselves; thus
insuring the execution of the crime without risk of reprisal
or resistance on their part. Treachery therefore attended
the commission of the crime.
It is significant to note that aside from treachery, the
information also alleges the “use of an explosive” 29 as an
aggravating circumstance. Since both attendant
circumstances can qualify the killing to murder
under Article 248 of the Revised Penal Code, 30 we
should determine which of the two circumstances will
qualify the killing in this case.
When the killing is perpetrated with treachery and
by means of explosives, the latter shall be considered as
a qualifying circumstance. Not only does
jurisprudence 31 support this view but also, since the use
of explosives is the principal mode of attack, reason
dictates that this attendant circumstance should qualify
the offense instead of treachery which will then be
relegated merely as a generic aggravating
circumstance. 32
Incidentally, with the enactment on June 6, 1997
of Republic Act No. 8294 33 which also considers the use
of explosives as an aggravating circumstance, there is a
need to make the necessary clarification insofar as the
legal implications of the said amendatory law vis-à-vis the
qualifying circumstance of “by means of explosion” under
Article 248 of the Revised Penal Code are concerned.
Corollary thereto is the issue of which law should be
applied in the instant case.
R.A. No. 8294 was a reaction to the onerous and
anachronistic penalties imposed under the old illegal
possession of firearms law, P.D. 1866, which prevailed
during the tumultuous years of the Marcos dictatorship.
The amendatory law was enacted, not to decriminalize
illegal possession of firearms and explosives, but to lower
their penalties in order to rationalize them into more
acceptable and realistic levels. 34
This legislative intent is conspicuously reflected in
the reduction of the corresponding penalties for illegal
possession of firearms, or ammunitions and other related
crimes under the amendatory law. Under Section 2 of the
said law, the penalties for unlawful possession of
explosives are also lowered. Specifically, when the
illegally possessed explosives are used to commit any of
the crimes under the Revised Penal Code, which result in
the death of a person, the penalty is no longer death,
unlike in P.D. No. 1866, but it shall be considered only as
an aggravating circumstance. Section 3 of P.D. No. 1866
as amended by Section 2 of R.A. 8294 now reads:
Section 2. Section 3 of Presidential
Decree No. 1866, as amended, is hereby
further amended to read as follows:
Section 3. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of
Explosives. The penalty of prision mayor in its
maximum period to reclusion temporal and a
fine of not less than Fifty thousand pesos
(P50,000.00) shall be imposed upon any
person who shall unlawfully manufacture,
assemble, deal in, acquire, dispose or possess
hand grenade(s), rifle grenade(s), and other
explosives, including but not limited to “pillbox,”
“molotov cocktail bombs,” “fire bombs,” or other
incendiary devices capable of producing
destructive effect on contiguous objects or
causing injury or death to any person.
When a person commits any of the
crimes defined in the Revised Penal Code or
special law with the use of the aforementioned
explosives, detonation agents or incendiary
devises, which results in the death of any
person or persons, the use of such explosives,
detonation agents or incendiary devices shall
be considered as an aggravating circumstance.
(shall be punished with the penalty of death is
DELETED.)
xxx xxx xxx
With the removal of death as a penalty and the
insertion of the term “. . . as an aggravating circumstance,”
the unmistakable import is to downgrade the penalty for
illegal possession of explosives and consider its use
merely as an aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to
reduce the penalty for illegal possession of firearms and
explosives. Also, Congress clearly intended RA No.
8294 to consider as aggravating circumstance, instead of
a separate offense, illegal possession of firearms and
explosives when such possession is used to commit other
crimes under the Revised Penal Code.
 It must be made clear, however, that RA No.
8294 did not amend the definition of murder under Article
248, but merely made the use of explosives an
aggravating circumstance when resorted to in committing
“any of the crimes defined in the Revised Penal Code.”
The legislative purpose is to do away with the use of
explosives as a separate crime and to make such use
merely an aggravating circumstance in the commission of
any crime already defined in the Revised Penal Code.
Thus, RA No. 8294 merely added the use of unlicensed
explosives as one of the aggravating circumstances
specified in Article 14 of the Revised Penal Code. Like the
aggravating circumstance of “explosion” in paragraph 12,
“evident premeditation” in paragraph 13, or “treachery” in
paragraph 16 of Article 14, the new aggravating
circumstance added by RA No. 8294 does not change the
definition of murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A.
No. 8294 still cannot be made applicable in this case.
Before the use of unlawfully possessed explosives can be
properly appreciated as an aggravating circumstance, it
must be adequately established that the possession was
illegal or unlawful, i.e., the accused is without the
corresponding authority or permit to possess. This follows
the same requisites in the prosecution of crimes involving
illegal possession of firearm 35 which is a kindred or
related offense under P.D. 1866, as amended. This proof
does not obtain in the present case. Not only was it not
alleged in the information, but no evidence was adduced
by the prosecution to show that the possession by
appellant of the explosive was unlawful. TIDHCc

It is worthy to note that the above requirement of

illegality is borne out by the provisions of the law itself, in
conjunction with the pertinent tenets of legal
hermeneutics.
A reading of the title 36 of R.A. No. 8294 will show
that the qualifier “illegal/unlawful . . . possession” is
followed by “of firearms, ammunition, or explosives or
instruments. . .” Although the term ammunition is
separated from “explosives” by the disjunctive word “or”, it
does not mean that “explosives” are no longer included in
the items which can be illegally/unlawfully possessed. In
this context, the disjunctive word “or” is not used to
separate but to signify a succession or to conjoin the
enumerated items together. 37 Moreover, Section 2 of R.A.
8294, 38 subtitled: “Section. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of Explosives”,
clearly refers to the unlawful manufacture, sale, or
possession of explosives.
What the law emphasizes is the act’s lack of
authority. Thus, when the second paragraph of Section
3, P.D. No. 1866, as amended by RA No. 8294 speaks of
“the use of the aforementioned explosives, etc.” as an
aggravating circumstance in the commission of crimes, it
refers to those explosives, etc. “unlawfully” manufactured,
assembled, dealt in, acquired, disposed or possessed
mentioned in the first paragraph of the same section.
What is per se aggravating is the use of unlawfully
“manufactured. . . or possessed” explosives. The mere
use of explosives is not.
The information in this case does not allege that
appellant Antonio Comadre had unlawfully possessed or
that he had no authority to possess the grenade that he
used in the killing and attempted killings. Even if it were
alleged, its presence was not proven by the prosecution
beyond reasonable doubt. Rule 110 of the 2000 Revised
Rules on Criminal Procedure requires the averment of
aggravating circumstances for their application. 39
The inapplicability of R.A. 8294 having been made
manifest, the crime committed is Murder committed “by
means of explosion” in accordance with Article 248(3) of
the Revised Penal Code. The same, having been alleged
in the Information, may be properly considered as
appellant was sufficiently informed of the nature of the
accusation against him. 40
The trial court found appellant guilty of the complex
crime of murder with multiple attempted murder
under Article 48 of the Revised Penal Code, which
provides:
Art. 48. Penalty for complex crimes. —
When a single act constitutes two or more
grave or less grave felonies, or when an
offense is a necessary means of committing the
other, the penalty for the most serious crime
shall be imposed, the same to be applied in its
maximum period.
 The underlying philosophy of complex crimes in the
Revised Penal Code, which follows the pro reo principle,
is intended to favor the accused by imposing a single
penalty irrespective of the crimes committed. The
rationale being, that the accused who commits two crimes
with single criminal impulse demonstrates lesser
perversity than when the crimes are committed by
different acts and several criminal resolutions.
The single act by appellant of detonating a hand
grenade may quantitatively constitute a cluster of several
separate and distinct offenses, yet these component
criminal offenses should be considered only as a single
crime in law on which a single penalty is imposed because
the offender was impelled by a “single criminal impulse”
which shows his lesser degree of perversity. 41
Under the aforecited article, when a single act
constitutes two or more grave or less grave felonies the
penalty for the most serious crime shall be imposed, the
same to be applied in its maximum period irrespective of
the presence of modifying circumstances, including the
generic aggravating circumstance of treachery in this
case. 42 Applying the aforesaid provision of law, the
maximum penalty for the most serious crime (murder) is
death. The trial court, therefore, correctly imposed the
death penalty.
Three justices of the Court, however, continue to
maintain the unconstitutionality of R.A. 7659 insofar as it
prescribes the death penalty. Nevertheless, they submit to
the ruling of the majority to the effect that the law is
constitutional and that the death penalty can be lawfully
imposed in the case at bar.
Finally, the trial court awarded to the parents of the
victim Robert Agbanlog civil indemnity in the amount of
P50,000.00, P35,000.00 as compensatory damages and
P20,000.00 as moral damages. Pursuant to existing
jurisprudence 43 the award of civil indemnity is proper.
However, the actual damages awarded to the heirs of
Robert Agbanlog should be modified, considering that the
prosecution was able to substantiate only the amount of
P18,000.00 as funeral expenses. 44
The award of moral damages is appropriate there
being evidence to show emotional suffering on the part of
the heirs of the deceased, but the same must be
increased to P50,000.00 in accordance with prevailing
judicial policy. 45
With respect to the surviving victims Jaime
Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday,
the trial court awarded P30,000.00 each for the injuries
they sustained. We find this award inappropriate because
they were not able to present a single receipt to
substantiate their claims. Nonetheless, since it appears
that they are entitled to actual damages although the
amount thereof cannot be determined, they should be
awarded temperate damages of P25,000.00 each. 46
WHEREFORE, in view of all the foregoing, the
appealed decision of the Regional Trial Court of San Jose
City, Branch 39 in Criminal Case No. L-16(95) is
AFFIRMED insofar as appellant Antonio Comadre is
convicted of the complex crime of Murder with Multiple
Attempted Murder and sentenced to suffer the penalty of
death. He is ordered to pay the heirs of the victim the
amount of P50,000.00 as civil indemnity, P50,000.00 as
moral damages and P18,000.00 as actual damages and
likewise ordered to pay the surviving victims, Jaime
Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday,
P25,000.00 each as temperate damages for the injuries
they sustained. Appellants Gregorio Comadre and Danilo
Lozano are ACQUITTED for lack of evidence to establish
conspiracy, and they are hereby ordered immediately
RELEASED from confinement unless they are lawfully
held in custody for another cause. Costs de oficio.
In accordance with Section 25 of Republic Act
7659 amending Article 83 of the Revised Penal Code,
upon finality of this Decision, let the records of this case
be forwarded to the Office of the President for possible
exercise of pardoning power. aEACcS

SO ORDERED.
Davide, Jr., C .J ., Puno, Vitug, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales,
Azcuna and Tinga, JJ ., concur.
Callejo, Sr., J ., pls. see my concurring and
dissenting opinion.

Footnotes
1.Rollo, p. 17.
2.Record, pp. 27-29.
3.Also referred to as Jerry Bullanday in the records.
4.TSN, October 12, 1995, p. 4; March 6, 1996, p. 3; March 21,
1996, p. 2; July 10, 1996, pp. 2-3.
5.TSN, October 12, 1995, p. 5; March 6, 1996, pp. 2-3; July
10, 1996, pp. 2-4.
6.TSN, October 12, 1995, pp. 5-7; March 6, 1996, pp. 4-5;
March 21, 1996, p. 3; July 10, 1996, p. 3.
7.TSN, March 21, 1996, pp. 4-6.
8.Record, pp. 10-11.
9.TSN, October 12, 1995, p. 10; March 6, 1996, p. 10; March
21, 1996, p. 5; July 10, 1996, pp. 6-7.
10.Record, p. 299.
11.TSN, August 28, 1998, pp. 7-9.
12.TSN, August 5, 1998, pp. 2-8.
13.TSN, December 3, 1998, pp. 3-10.
14.TSN, January 7, 1999, pp. 7-8; April 9, 1999, pp. 6-8.
15.TSN, July 30, 1999, pp. 3-5.
16.Penned by Judge Bayani V. Vargas of the Regional Trial
Court of San Jose City, Branch 39.
17.Rollo, pp. 67-68.
18.People v. Del Valle, G.R. No. 119616, 14 December 2001,
372 SCRA 297.
19.People v. Patalin, G.R. No. 125539, 27 July 1999, 311
SCRA 186; citing People v. Agunias, G.R. No. 121993,
12 September 1997, 279 SCRA 52.
20.People v. Abundo, G.R. No. 138233, 18 January 2001,
349 SCRA 577.
21.People v. Francisco, G.R. Nos. 134566-67, 22 January
2001, 350 SCRA 55.
22.TSN, July 10, 1996, p. 4; March 21, 1996, p. 4.
23.People v. Escalante, G.R. No. L-37147, 22 August 1984,
131 SCRA 237.
24.101 Phil. 188, 194 (1957).
25.People v. Rabutin, G.R. Nos. 118131-32, 5 May 1997,
272 SCRA 197.
26.People v. Tabuso, G.R. No. 113708, 26 October 1999,
317 SCRA 454.
27.People v. Bolivar, G.R. No. 108174, 28 October 1999, 317
SCRA 577.
28.People v. Capili, G.R. No. 130588, 8 June 2000, 333
SCRA 354.
29.Defined as — a sudden and rapid combustion, causing
violent expansion of the air, and accompanied by a
report. United Life, Fire and Marine Insurance, Inc. v.
Foote, 22 Ohio St. 348, 10 Am Rep 735, cited in
Bouvier's Law Dictionary, Third Revision, Vol. 1; also
defined in Wadsworth v. Marshall, 88 Me 263, 34 A 30,
as a “bursting with violence and loud noise, caused by
internal pressure.”
30.Art. 248. Murder. — Any person who, not falling within the
provisions of Article 246 shall kill another, shall be
guilty of murder and shall be punished by reclusion
perpetua to death if committed with any of the
following attendant circumstances:
xxx xxx xxx
1. With treachery, taking advantage of superior strength,
with aid of armed men, or employing means to
weaken the defense, or of means or persons to insure
or afford impunity;
xxx xxx xxx
3. By means of inundation, fire, poison, explosion,
shipwreck, stranding or a vessel, derailment or assault
upon a railroad, fall of an airship, or by means of motor
vehicles, or with the use of any other means involving
great waste and ruin. (emphasis supplied)
31.People v. Tayo, G.R. No. L-52798, 19 February 1986, 141
SCRA 393, citing People v. Guillen, 85 Phil.
307; People v. Gallego and Soriano, 82 Phil.
335; People v. Agcaoili, 86 Phil. 549; People v.
Francisco, 94 Phil. 975.
32.People v. Tintero, G.R. No. L-30435, 15 February 1982,
111 SCRA 704; People v. Asibar, G.R. No. L-37255,
23 October 1982, 117 SCRA 856.
33.Entitled: An Act Amending the Provisions of Presidential
Decree No. 1866, As Amended, Entitled “Codifying
the Laws on Illegal/Unlawful Possession, Manufacture,
Dealing in, Acquisition or Disposition of Firearms,
Ammunition or Explosives or Instruments Used in the
Manufacture of Firearms, Ammunition or Explosives,
and Imposing Stiffer Penalties for Certain Violations
Thereof, and for Relevant Purposes.”
34.Representative Roilo Golez, in his sponsorship speech,
laid down two basic amendments under House Bill No.
8820, nowR.A. 8294:
1. reduction of penalties for simple illegal possession of
firearms or explosives from the existing reclusion
perpetuato prision correccional or prision mayor,
depending upon the type of firearm possessed;
2. repeal of the incongruous provision imposing capital
punishment for the offense of illegal possession of
firearms and explosives in furtherance of or in pursuit
of rebellion or insurrection.
The same rationale was the moving force behind Senate Bill
1148 as articulated by then Senator Miriam Defensor
Santiago in her sponsorship speech:
The issue of disproportion is conspicuous not only when we
make a comparison with the other laws, but also when
we make a comparison of the various offenses defined
within the existing law itself. Under P.D. No. 1866, the
offense of simple possession is punished with the
same penalty as that imposed for much more serious
offenses such as unlawful manufacture, sale, or
disposition of firearms and ammunition.
xxx xxx xxx
It was only during the years of martial law — 1972 and 1983
— that the penalty for illegal possession made a
stratospheric leap. Under P.D. No. 9 promulgated in
1972 — the first year of martial law — the penalty
suddenly became the mandatory penalty of death, if
the unlicensed firearm was used in the commission of
crimes. Subsequently, under P.D. No. 1866,
promulgated in 1983 — during the last few years of
 martial law — the penalty was set at its present
onerous level.
The lesson of history is that a democratic, constitutional,
and civilian government imposes a very low penalty
for simple possession. It is only an undemocratic
martial law regime — a law unto itself — which
imposes an extremely harsh penalty for simple
possession.
35.In crimes involving illegal possession of firearm, two
requisites must be established, viz.: (1) the existence
of the subject firearm and, (2) the fact that the accused
who owned or possessed the firearm does not have
the corresponding license or permit to possess.
See: People v. Solayao, G.R. No. 119220, 20
September 1996; People v. Lualhati, 234 SCRA 325
(1994); People v. Damaso, 212 SCRA 547 (1992).
36.An Act Amending the Provisions of Presidential Decree
No. 1866, as amended, entitled “Codifying the Laws
on Illegal/Unlawful Possession, Manufacture, Dealing
in, Acquisition or Disposition of Firearms, Ammunition
or Explosives or Instruments Used in the Manufacture
of Firearms, Ammunition or Explosives, and Imposing
Stiffer Penalties for Certain Violations Thereof, and
For Relevant Purposes.”
37.This follows a similar construction used in Article 344 of
the Revised Penal Code which states in part that “the
offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon
complaint by the offended party or her parents,
grandparents, or guardian, nor in any case, if the
offender has been expressly pardoned by the
above-mentioned persons, as the case may be.” In
this context, “or” has the same effect as the
conjunctive term “and.”
38.Subtitled: “Section 3. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of Explosives”
where the modifier “unlawful” describes the
manufacture, sale, etc. of, among others, explosives.
39.Sec. 8. Designation of the offense. — The complaint or
information shall state the designation of the offense
given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation
 of the offenses, reference shall be made to the section
or subsection of the statute punishing it.
Sec. 9. Cause of the accusation. — The acts or omissions
complained of as constituting the offense and the
qualifying and aggravating circumstances must be
stated in ordinary and concise language and not
necessarily in the language used in the statute but in
terms sufficient to enable a person of common
understanding to know what offenses is being charged
as well as its qualifying and aggravating
circumstances and for the court to pronounce
judgment.
40.People v. Manansala, G.R. No. 147149, 9 July
2003; People v. Paulino, G.R. No. 148810, 18
November 2003.
41.People v. Sakam, 61 Phil. 27; People v. Manantan, 94
Phil. 831.
42.People v. Guillen, G.R. No. L-1477, 18 January 1950.
43.People v. Delim, G.R. No. 142773, 28 January 2003.
44.RTC Record, Vol. 1, p. 170, Exhibit ‘J’; TSN, 21 March
1996, p. 10.
45.People v. Caballero, G.R. Nos. 149028-30, 2 April
2003; People v. Galvez, G.R. No. 1300397, 17
January 2002; TSN, March 21, 1996, p. 11.
46.People v. Abrazaldo, G.R. No. 124392, 7 February 2003.

||| (People v. Comadre, G.R. No. 153559, [June 8, 2004])

SECOND DIVISION

[G.R. No. 148699. November 15, 2002.]

THE PEOPLE OF THE

PHILIPPINES, plaintiff-appellee, vs. AM WILSON
MANIJAS y LIM, accused-appellant.

The Solicitor General for plaintiff-appellee.

 Melchor Rey K. Sadain for accused-appellant.

SYNOPSIS

Appellant was found guilty of murder for blowing off the head of his
victim with the use of an M16 Baby Armalite, and was sentenced to
suffer reclusion perpetua. In this appeal, the Court affirmed the
conviction.aIcSED

Appellant was positively identified by prosecution witnesses as the

assailant. This is more than sufficient to convict appellant of the crime
charged. The paraffin test which showed that appellant's right hand was
positive for gunpowder nitrates was corroborative evidence of his guilt.
The Court ruled that treachery qualified the crime to murder as the attack
was sudden, and the same was aggravated by the use of an unlicensed
firearm. The same, however, was offset by the mitigating circumstance of
voluntary surrender, as after learning that appellant was found positive of
gunpowder, he lost no time in reporting to the authorities and surrendered
himself.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES,

UPHELD. — The trial court correctly relied on the testimonies of T/Sgt.
Bona and M/Sgt. Agadier for its findings. Their narration of the events
dovetailed on pertinent points. These witnesses were candid and
remained steadfast under rigorous cross-examination. Moreover, no
reason has been shown why these witnesses would testify falsely against
accused-appellant. Their testimonies were worthy of the full faith and
credit accorded to them by the trial court.
2. ID.; ID.; PRESUMPTIONS; REGULAR PERFORMANCE OF
OFFICIAL DUTY. — It must be presumed that official duty was regularly
performed. Strong evidence is necessary to rebut this presumption. In
this case, accused-appellant has not presented any evidence to show
that the paraffin testing done on his person was falsified. Nor can it be
said that the persons who conducted the examination had any ill motive
or intention to falsely implicate accused-appellant.
3. CRIMINAL LAW; MURDER; ABSENCE OF NITRATE
POWDER ON THE HANDS OF A SUSPECT IS NOT CONCLUSIVE
PROOF THAT HE DID NOT FIRE A GUN. — There are several reasons
why no nitrate powder may be found on the hands of a suspect. We
recognized several factors which may account for such absence of
gunpowder nitrates on the hands of the gunman, e.g., because the
assailant had washed his hands after firing the gun or had worn gloves or
the direction of a strong wind was against the gunman at the time of firing.
In these cases, the Court ruled that the absence of nitrates in a suspect's
hand is not conclusive proof that he did not fire a gun.
4. ID.; ID.; POSITIVE RESULT OF PARAFFIN TEST IS MERELY
CORROBORATIVE. — The paraffin test which in this case showed
accused-appellant's right hand to be positive for nitrates, constitutes only
corroborative evidence of his guilt. Even without the paraffin test, the
positive identification by prosecution witnesses T/Sgt. Bona and M/Sgt.
Agadier of accused-appellant as the assailant is more than sufficient to
convict him of the crime charged.
5. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT PREVAIL
OVER POSITIVE IDENTIFICATION OF ASSAILANT. — Alibi may be
considered exculpatory when the guilt of the accused is not established
beyond cavil. In such a case, the accused must not only prove that he
was elsewhere at the time of the commission of the crime but that it was
physically impossible for him to have been at the scene when the crime
took place. Here, however, accused-appellant was positively identified as
the assailant.
6. CRIMINAL LAW; CONSPIRACY; NOT APPRECIATED IN THE
ABSENCE OF SUFFICIENT EVIDENCE. — We agree that the
prosecution failed to prove conspiracy. This must be shown as clearly
and conclusively as the commission of the crime itself. Mere suspicion,
speculation, relationship, association, and companionship do not prove
conspiracy. T/Sgt. Bona testified that the crime was "planned," but no
proof was adduced to support this allegation or to explain how, why and
when such connivance was contrived.
7. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY;
PRESENT IN CASE AT BAR. — Treachery is a sudden and unexpected
attack, without the slightest provocation on the part of the victim. It exists
when any of the crimes against person is committed with the employment
of means, methods or forms which tend directly and specially to insure its
execution without risk to the offender arising from the defense which the
offended party might make. In the case at bar, the attack was so sudden
that the victim M/Sgt. Malit was not even able to draw the gun tucked in
his waistband. What is more, the weapon used, an M16 Baby Armalite,
almost certainly made it impossible for the victim to defend himself with
his 45-caliber pistol.
 8. ID.; MURDER; PROPER PENALTY WHERE AGGRAVATING
CIRCUMSTANCE OF USE OF UNLICENSED FIREARM IS OFFSET BY
MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER. —
The crime committed by accused-appellant Wilson Manijas is murder
qualified by treachery. Under Article 248 of the Revised Penal Code, the
penalty for murder is reclusion perpetua to death. The aggravating
circumstance of use of an unlicensed firearm, an M16 Baby Armalite rifle,
attended the commission of the crime. This circumstance is offset by the
mitigating circumstance of voluntary surrender: As already noted, after
learning that he had been found positive for gunpowder,
accused-appellant lost no time in reporting to the authorities and
surrendered. We agree, therefore, that the mitigating circumstance of
voluntary surrender should be appreciated in accused-appellant's
favor.THDIaC

DECISION

MENDOZA, J : p

This is an appeal from the decision 1 of the Regional Trial Court,

Branch 16, Zamboanga City, finding accused-appellant AM Wilson
Manijas y Lim guilty beyond reasonable doubt of the crime of murder for
the killing of M/Sgt. Emerme S. Malit and sentencing him to suffer the
penalty of reclusion perpetua, to pay the heirs of the victim P50,000.00 as
indemnity, P30,000.00 as moral damages, P20,000.00 as exemplary
damages and to pay the costs.
The information against accused-appellant alleged —
That on or about May 28, 1999, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, AM WILSON MANIJAS y LIM,
being then a member of the Philippine Air Force, 3rd Air Wing
Base, this City, and as such armed with a Baby Armalite,
conspiring and confederating together, mutually aiding and
assisting with his unidentified companion, by means of
treachery and with intent to kill, did then and there wilfully and
feloniously, suddenly attack and shoot, with the use of such
weapon that they were then armed with, at the person of M/SGT.
EMERME S. MALIT, thereby inflicting mortal gunshot wounds
on the fatal parts of the latter's, body, which directly caused his
death, to the damage and prejudice of the heirs of the said
victim.
 CONTRARY TO LAW. 2
Upon arraignment, accused-appellant Manijas entered a plea of
not guilty, whereupon he was tried.
Nine witnesses were presented by the prosecution, namely: (1) Dr.
Owen Jaen Lebaquin, M.D.; (2) T/Sgt. Henry Bona; (3) M/Sgt. Armando
Agadier; (4) SPO2 Jesus Ortega; (5) M/Sgt. Myrna A. Malit; (6) Sr. Ins.
Mercedes Delfin Diestro; (7) Ma. Lilia L. Urmanita; (8) Capt. Jose Torres,
Jr. (Ret.); and (9) SPO1 Elmer Acuña.
T/Sgt. Henry Almogera Bona testified that he was a member of the
Philippine Air Force (PAF) assigned with the Composite Tactical Group 9
at Jolo, Sulu. Upon receiving a telegram that his father was very ill in
Sorsogon, he went to Zamboanga City from Jolo in the afternoon of May
27, 1999 with the intention of boarding a C-130 plane of the Philippine Air
Force bound for Manila and from there go home to Sorsogon. At about 5
o'clock in the afternoon of the same day, he met the victim M/Sgt.
Emerme Malit, who was escorting his daughter to the C-130 so that the
latter could go to Manila to study. Malit arrived in Zamboanga City from
Jolo one day ahead of T/Sgt. Bona. T/Sgt. Bona had known M/Sgt. Malit
for nineteen (19) years since they had both been assigned to Jolo since
1979. 3
That same day, T/Sgt. Bona and M/Sgt. Malit drank liquor with
M/Sgt. Armando Agadier in the barracks. They consumed two bottles of
Tanduay (lapad) until 10 o'clock in the evening. At about 11 o'clock in the
evening, they went out of the barracks and proceeded to the "Real
Meeting Place," a karaoke bar near Edwin Andrews Air Base, where they
sang and drank beer. T/Sgt. Bona and M/Sgt. Malit drank four (4) bottles
of beer each, while M/Sgt. Agadier finished only one bottle as he was not
fond of drinking. They left the karaoke bar at around 2:40 o'clock in the
morning of May 28, 1999. M/Sgt. Malit was then wearing a white T-shirt,
short maong pants and Topsider leather shoes. He had a service firearm
since he was on a mission in Zamboanga City, but the same was hidden
by his shirt. T/Sgt. Bona and M/Sgt. Agadier were not armed. 4
From the karaoke bar, the group proceeded to the "Roadside
Snack House" for tapsilog. The snack house was made of wooden slabs
attached to the cemented wall of the fence of the air base fronting Gov.
Camins Road, which led to the Zamboanga International Airport. The
walls on the left and right sides were made of wooden slabs placed side
by side. The snack house had only one (1) door about one meter wide.
On the lower portion of the walls, the slabs were placed close to each
other while at the upper portion there were slits between the slabs. 5 The
door of the snack house was about one meter from the shoulder of Gov.
Camins Road. At the side of the snack house were bougainvillea plants.
The place was well-lighted by two fluorescent lamps.
When T/Sgt. Bona and his companions arrived, no other persons
were in the vicinity of the snack house. After eating, Malit, Bona and
Agadier stood up to leave. M/Sgt. Malit stepped out first, intending to call
a tricycle. T/Sgt. Bona followed about a meter behind him. Suddenly,
T/Sgt. Bona heard a burst of gunfire coming from the right side of the door
of the snack house. He saw M/Sgt. Malit fall down on the shoulder of the
road. Instinctively, he dropped to the ground and crawled inside the
snack house for cover. He peeped through the slits to see who had shot
M/Sgt. Malit and saw accused-appellant Manijas holding a Baby Armalite
rifle. It appears that accused-appellant Manijas came from the right side
of the snack house where there were bougainvillea plants, about three
meters away from the spot where M/Sgt. Malit fell. Accused-appellant
Manijas got the .45-caliber pistol tucked on M/Sgt. Malit's waist and
walked towards his companion who was waiting for him. T/Sgt. Bona
recognized accused-appellant Manijas because of the street lamp in front
of the snack house across the road. He testified that accused-appellant
was wearing a white T-shirt with the words "United States of America"
printed on it, light blue maongpants and rubber shoes. T/Sgt. Bona knew
accused-appellant Manijas because the latter was his cadet at Mindanao
State University in Jolo, Sulu, where T/Sgt. Bona was in charge of the
ROTC in 1996 and 1997. Accused-appellant Manijas enlisted in the
Philippine Air Force in 1998. T/Sgt. Bona did not recognize
accused-appellant's companion because the latter's back was towards
him (T/Sgt. Bona). According to T/Sgt. Bona, accused-appellant's
companion was taller than he (accused-appellant) and had short hair.
Accused-appellant and his companion boarded a blue tricycle which then
sped towards the Zamboanga International Airport. The tricycle, with
plate number JU-2068, was only seven meters away from T/Sgt. Bona. 6
After accused-appellant Manijas and his companion had left, T/Sgt.
Bona told M/Sgt. Agadier to guard the body of M/Sgt. Malit as he (Bona)
took a tricycle to the base to ask for help. T/Sgt. Bona reported to Captain
Jose Torres, Jr., the duty officer on that day, that M/Sgt. Malit had been
shot and killed at the "Roadside Snack House" by accused-appellant
Wilson Manijas.
A team of seven soldiers proceeded to the crime scene. When they
arrived, they found M/Sgt. Malit's body sprawled on the edge of the road
with its head blown off. There was an ambulance and several policemen
at the scene. The policemen took T/Sgt. Bona's testimony at the police
station but he did not reveal the identity of the one who shot M/Sgt. Malit
because he feared for his own life. He testified: "What I did [at the Central
Police Station], I did not give the name of the one who killed my
companion [M/Sgt. Malit] because I am afraid I might die. I know that the
incident was planned and if I will go home, I might be killed and the case
will be no more." 7 T/Sgt. Bona found himself alone as his companion,
M/Sgt. Agadier, suffered hypertension and had to be taken home. After
T/Sgt. Bona's statement 8 was taken at the Central Police Station, he was
allowed to go home to the air base on board a tricycle in the early morning
of May 28, 1999. 9
That same day, at the investigation section of the air base, T/Sgt.
Bona revealed to M/Sgt. Nonilo Aquino that M/Sgt. Malit had been shot
by accused-appellant Wilson Manijas. Based on his information,
accused-appellant Manijas was picked up for paraffin examination. M/Sgt.
Aquino took T/Sgt. Henry A. Bona's statement at the Wing Intelligence
Office on or about 1425-H (2:25 p.m.) of May 28, 1999. The statement
was sworn to before Major Vera T. Vergara, (JAGS), Wing Legal
Officer. 10
In the afternoon of May 29, 1999, T/Sgt. Bona boarded a C-130
plane for Manila. He returned to Zamboanga City on June 15, 1999. He
reported to the investigation section of the air base and, on June 16, 1999,
signed an Affidavit, 11 which was sworn to before 3rd Asst. City
Prosecutor Juan G. Florendo of Zamboanga City, in which he again
pointed to accused-appellant Wilson Manijas as the assailant. 12
The next witness for the prosecution, M/Sgt. Armando Agadier, is a
member of the Philippine Air Force assigned at the Composite Tactical
Group 9, Jolo, Sulu. Agadier corroborated the testimony of T/Sgt.
Bona. 13 He testified that from the karaoke bar, they proceeded to the
"Roadside Snack House" to eat. It was then about 3 o'clock in the
morning of May 28, 1999. M/Sgt. Malit paid their bill and then went out,
followed by T/Sgt. Bona. M/Sgt. Agadier was still inside the snack house
when he heard a burst of gunfire. He recognized the sound as that
coming from an M16 Armalite rifle. He was surprised (nabigla) and was
not able to seek cover. He just covered his face with both arms. Then,
M/Sgt. Agadier said, he peeped through an opening near the door of the
snack house and saw M/ Sgt. Malit sprawled on the ground face up. The
top of his head had been blown off. M/Sgt. Agadier saw
accused-appellant Manijas leaving the place holding a Baby Armalite rifle.
M/Sgt. Agadier knew accused-appellant Manijas because the latter had
been his neighbor at the Airman's Village at Satag, Jolo, Sulu since the
1990's. As he was walking away, accused-appellant Manijas turned
around and M/Sgt. Agadier clearly saw his face. The place was
illuminated by two streetlights, one near the dead body of the victim and
the other, farther away. There were no other armed persons near the
crime scene except accused-appellant and another one standing near a
tricycle, who was taller than accused-appellant Manijas.
Accused-appellant Manijas and the other man then boarded the tricycle
and left. T/Sgt. Bona told Agadier to keep watch over the body of M/Sgt.
Malit while Bona reported the incident to their headquarters at the air
base. Minutes later, air force enlisted personnel, headed by Captain Jose
Torres, Jr., arrived. M/Sgt. Agadier had to be taken to the barracks for
medical attention because he was suffering from hypertension. On June
17, 1999, M/Sgt. Agadier executed an Affidavit 14 which was sworn to
before State Prosecutor II Peter C. Medalle. In his affidavit, M/Sgt.
Agadier identified the assailant of M/Sgt. Malit as accused-appellant
Wilson Manijas. 15
Captain Jose C. Torres, Jr., PAF (Ret.), testified that on May 28,
1999, he was officer of the day at the Edwin Andrews Air Base. At past 3
o'clock in the morning, T/Sgt. Henry Bona, an air force enlisted personnel
assigned in Jolo, Sulu, reported to him that his companion, M/Sgt.
Emerme Malit, had been shot to death at a roadside eatery along Gov.
Camins Road and that the assailant was accused-appellant Wilson
Manijas. Upon receipt of the report, Captain Torres said he formed a
team of Air Police personnel headed by M/Sgt. Orio which proceeded to
the crime scene. They saw the dead body of M/Sgt. Emerme Malit.
Several policemen and people were already at the crime scene. Captain
Torres saw M/Sgt. Agadier, who was trembling and speechless, and took
the latter to the air force hospital where he was confined. Captain Torres
relayed to Maj. Eugenio Ornido, Wing Action Officer, the information
given by T/Sgt. Bona that it was accused-appellant Wilson Manijas who
shot and killed M/Sgt. Malit. He later reported this information to Captain
Edwin Ganitnit, the Director for Intelligence, who was to investigate the
matter. 16
SPO1 Acuña testified that the shooting incident was reported to the
Zamboanga City Police Office at 3:05 o'clock in the morning through a
telephone call by a concerned citizen. The report was recorded in a
complaint/assignment sheet. 17 Upon receipt of the report, SPO1 Acuña
proceeded to the crime scene with PO3 Montenegro. When he arrived,
SPO1 Acuña saw the victim lying on the roadside in a pool of blood.
SPO1 Acuña recovered six (6) empty shells 5.56 M16 rifle 18 at the crime
scene. M/Sgt. Malit's companion, T/Sgt. Henry Bona, was invited to the
police station. During the investigation at the police station, T/Sgt. Bona
did not identify the assailant. The sworn affidavits of T/Sgt. Henry Bona
and M/Sgt. Armando Agadier were turned over to the police by elements
of the Philippine Air Force on June 22, 1999. 19
P/Sr. Insp. Mercedes Delfin-Diestro, a Forensic Chemist, testified
that on May 28, 1999, at the request of Captain Edgardo Lorenzo,
Director for Intelligence of the Philippine Air Force, a paraffin test was
conducted on accused-appellant Wilson Manijas. SPO1 Godofredo
Grafia conducted paraffin casting on both hands of accused-appellant
Wilson Manijas. Sr. Insp. Diestro examined the paraffin cast on May 31,
1999. The examination showed accused-appellant's right hand positive
for gunpowder nitrates. 20 Diestro testified that the positive result of the
presence of gunpowder nitrates on the right hand of accused-appellant
indicated the possibility that he may have fired a gun. 21
On the other hand, Mrs. Myrna Annudin Malit, widow of the late
M/Sgt. Emerme Malit, testified that she knew accused-appellant Wilson
Manijas because they were neighbors in Jolo, Sulu. She testified that she
spent P50,000.00 for her husband's coffin and around P30,000.00 for the
funeral services. She also spent P100,000.00 for the nine-day prayer.
Her husband was earning almost P14,000.00 at the time of his death. 22
Mrs. Ma. Lilia Urmanita y Lubaton, Supply Accountable Officer of
the Airborne 530th Airbase Wing of the Philippine Air Force at Edwin
Andrews Air Base, testified that accused-appellant Wilson Manijas had
not been issued a government firearm. She issued a Certification 23 to
this effect. 24
Her testimony was corroborated by SPO4 Jesus Guray Ortega,
officer in charge of processing applications for firearm licenses of the
PNP Regional Office 9 in Zamboanga City. 25
A postmortem examination conducted by Dr. Owen Jaen Lebaquin,
Police Chief Inspector, Regional Chief and Medico-Legal Officer, PNP
Regional Crime Laboratory Office 9, Zamboanga City showed the
following: 26
FINDINGS:
Fairly nourished, fairly developed, male cadaver, in rigor
mortis with postmortem lividity at the dependent portions of the
body. Lips are pale.
HEAD TRUNK AND EXTREMITIES:
(1) Avulsion frontal area of the head extending to the
occipital area of the head, measuring 18 x 13 cm. bisected by its
anterior midline.
 (2) Gunshot wound, thru and thru, point of entry, right
supraorbital area, measuring 0.4 x 0.2 cm. 7 cm. from its
anterior midline, with an abraded collar measuring 0.3 cm
laterally, 0.1 cm medially, 0.2 cm superiorly and 0.1 cm interiorly
directed posteriorwards, downwards, lateralwards and making
a point of exit at the right occipital area of the head measuring 5
x 2 cm, 5 cm from its posterior midline.
(3) Gunshot wound, point of entry, right deltoid area,
measuring 0.4 cm x 0.3 cm, 5 cm to its anterior midline, with an
abraded collar measuring 0.3 cm superiorly, 0.2 cm laterally,
directed posteriorwards, downwards, medial-wards fracturing
the 2nd and 3rd thoracic ribs lacerating the upper lobe of the
right lung, thoracic aorta and nicking to 3rd, 4th and 5th thoracic
vertebra with a metallic fragment recovered thereat.
(4) Gunshot wound, point of entry, upper 3rd of the right
arm, measuring 0.4 cm x 0.2 cm, 9 cm lateral to its anterior
midline with an abraded collar measuring 0.3 cm superiorly, 0.2
cm lateral and 0.1 cm interiorly and medially directed
posteriorwards, downwards, medialwards fracturing to 2nd and
3rd right thoracic ribs and lacerating the upper and middle lobes
of the right lung a metallic fragment recovered thereat. CSIHDA

(5) Gunshot wound, point of entry, right axillary area,

measuring 0.4 cm x 0.3 cm, 24 cm from its anterior midline with
an abraded collar measuring 0.2 cm superiorly and 0.1 cm
inferiorly, medially and laterally directed posterior-wards,
downwards, medialwards fracturing the 6, 7, 8th thoracic ribs
lacerating the lower lobe of the right lung and the liver with a
metallic fragment recovered thereat.
There are about 800 cc of blood and blood clots at the
thoracic and abdominal cavities.
Stomach is empty.
CONCLUSION:
Cause of death is hemorrhage due to multiple gunshot
wounds to the head and the body.
The defense then presented accused-appellant Wilson Manijas.
He testified that he was a member of the Philippine Air Force since June
16, 1997. At 6 o'clock in the evening of May 27, 1999, he said, he was
with his classmate Airman Allan Artazo at the air base. They went to
Shoppers Square to meet with Artazo's girlfriend and from there they
went to the house of the latter at Tugbungan. There, they consumed one
and a half (1-1/2) cases of beer with the uncle of Artazo's girlfriend until
past 11 o'clock in the evening. From there, accused-appellant Manijas
and Artazo went to the "Daishita Karaoke Bar." Accused-appellant said
he and Artazo drank half a case of beer. At 2:30 o'clock in the morning,
Artazo excused himself and went back to the air base. Accused-appellant
Manijas stayed behind to wait for his girlfriend, Allen Ampalaya, but she
did not come. He left the place at 3:30 o'clock in the morning. He rode a
tricycle to the house of his cousin Yasser Halil in Baliwasan Chico. He did
not go home to his house in Guiwan because he knew the gate and the
house would already be closed and their door bell was then out of order.
He arrived at his cousin's house at Baliwasan Chico at a quarter to 4
o'clock in the morning. When he arrived, the occupants of the house were
asleep. No one opened the door when he knocked, so he left and went
home to Guiwan. On his way, he passed by Gov. Camins Road and saw
several people on the road and a police vehicle that was parked on the
side. He did not recognize anyone. He arrived at his house in Guiwan at
about 5 o'clock in the morning. 27
Continuing his testimony, accused-appellant said that in the
morning of May 28, 1999, he took a bath, reported to the air base at 7
o'clock in the morning and attended the flag ceremony. There was
already news in the air base that a member of the air force was shot.
During the formation after the flag ceremony, the First Sergeant informed
them that M/Sgt. Emerme Malit had been shot. While awaiting the arrival
of M/Sgt. Malit's remains, accused-appellant Manijas cleaned the M16
Armalite rifle issued to him as an honor guard. He dismantled and
cleaned it, wiping its barrel and bolt with a piece of cloth.
Accused-appellant was not able to witness the arrival of M/Sgt. Malit's
remains because, at 4 o'clock in the afternoon, he was picked up by
members of the Intelligence Unit of the Air Force, headed by Captain
Edgardo Lorenzo, PAF Director for Intelligence. Accused-appellant was
taken to the PNP Regional Crime Laboratory Office 9 for paraffin
examination of both his hands. At past 7 o'clock in the evening of May 28,
1999, accused-appellant received a message from his brother that their
mother was seriously ill in Jolo. He wanted to ask permission from his
superior to go to Jolo. Accused-appellant Manijas left for Jolo on board
the boat Danica Joy at around 8 o'clock in the evening, without his
superior's permission. When he arrived in Jolo in the morning of May 29,
1999, he immediately proceeded to the Sulu Provincial Hospital where
his mother was confined. Accused-appellant Manijas stayed in Jolo until
September 1999. As a result, he was declared to have been absent
without leave (AWOL). In late September, accused-appellant said he
received information from his aunt, Mutmaina Kamlon, that he was found
positive for gunpowder nitrates and that a warrant for his arrest had been
issued. Hence on October 3, 1999, he returned to Zamboanga City. On
October 5, 1999, he was accompanied by Atty. Melchor Sadain to Edwin
Andrews Air Base where a warrant of arrest was served on him, after
which he was committed to the City Jail. 28
AM Allan Artazo was presented to corroborate the testimony of
accused-appellant Manijas. AM Artazo said that he was a classmate of
accused-appellant Wilson Manijas in the Philippine Air Force. In May
1999, he was assigned at the Edwin Andrews Air Base in Zamboanga
City. AM Artazo said that he was with accused-appellant Manijas from 6
o'clock in the evening of May 27, 1999 to around 2:30 o'clock in the
morning of May 28, 1999. After that time, he left accused-appellant at the
"Daishita Karaoke Bar" in Canelar, Zamboanga City, and returned to
Edwin Andrews Air Base. 29
Surina Manijas y Isahac, wife of accused-appellant Manijas,
testified that in the morning of May 27, 1999, her husband reported for
work at the Edwin Andrews Air Base. It was about 4:50 o'clock in the
morning of May 28, 1999 when accused-appellant came home. At around
7 o'clock in the morning of said day, accused-appellant left for work at the
Air Base and returned home at around 8 o'clock in the evening. At 8:30
o'clock that evening, he left for Jolo. 30
Based on the parties' evidence, the trial court rendered a decision
on February 1, 2001, finding accused-appellant Manijas guilty beyond
reasonable doubt. In his appeal, accused-appellant assigned the
following errors against the trial court:
I. THE TRIAL COURT ERRED IN CONVICTING
APPELLANT OF THE CRIME CHARGED
NOTWITHSTANDING THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
II. THE TRIAL COURT ERRED IN GIVING FULL WEIGHT
AND CREDENCE TO PROSECUTION'S EXHIBIT
"I" (Physical Science Report # [C-026]-99) AND ITS
SUB-MARKINGS. IT ALSO ERRED IN NOT
GIVING EXCULPATORY WEIGHT TO THE
EVIDENCE ADDUCED BY THE DEFENSE.
First. Accused-appellant Airman Manijas argues that there are
serious doubts concerning the truthfulness of the statements of T/Sgt.
Henry Bona and M/Sgt. Armando Agadier and that it was error for the trial
court to rely on their testimonies.
Accused-appellant points out the conflicting statements of T/Sgt.
Bona. In his affidavit, T/Sgt. Bona stated that it was "quite dim" or "dark"
and for this reason did not recognize the assailant, but in his testimony in
court he claimed that the crime scene was sufficiently illuminated by two
lamp posts and he recognized the assailant to be accused-appellant.
Later, however, T/Sgt. Bona said that he said in his affidavit that it was
dark and that he did not recognize the killer because he was afraid and he
was concerned about his personal safety. Thus, he testified: 31
PROSECUTOR DIABO:
Q: Here, you said it was "quite dim" or "dark." But yesterday
during the direct examination before this Court, you said,
the vicinity was "clear" because of the light coming from
the street post. Which is now correct Mr. Witness?
A: The one that was correct is that one I said, that "it's clear"?
Q: And, why did you say this in the police station that, it was
"dim" or "dark"?
A: Well, I said that in the police station that it was "dim" or "dark"
considering that I told that, I do not know the assailant
"para makatugma ang statement ko na, hindi ko kilala
ang assailant."
INTERPRETER:
So that my statement will coincide with my statement that I did
not recognize the assailant.
COURT:
Q: In plain words, you lied as to the identity of the assailant and
as to the lighting condition?
A: Yes.
Q: And, to make your lies more believable you said, the lighting
condition was quite "dim"? aHIEcS

A: Yes.
Proceed.
PROSECUTOR DIABO:
Q: Why did you say that to the Police? . . . Why did you lie to the
Police?
ATTY. SADAIN:
Already answered Your Honor.
COURT:
 Yes, already answered. He said, because he was alone, from
the police station on his way, he will be returning alone
so, he said that this crime was planned and he was afraid
that, he might also be a victim.
Accused-appellant makes much of the fact that the incident
reported by T/Sgt. Bona to Captain Torres was not recorded in the
logbook of the Edwin Andrews Air Base. Captain Torres stated that T/Sgt.
Bona reported the shooting incident to him and further told him who the
assailant was. He testified: 32
FISCAL CABARON:
Q: Now, Mr. Witness, about [pass] three o' clock in the early
dawn on May 28, 1999 could you tell the Honorable
Court if you received a report?
A: Henry Bona reported to me that a shooting incident [occurred]
during that time.
Q: Who is this Henry Bona, Mr. Witness?
A: Philippine Air Force who is assigned in Jolo, Sulu.
Q: Do you know him personally?
A: Of course, I personally know him since we were then
companion (sic) in Jolo, Sulu way back 1970 to 1983.
Q: Where did he give you this report, about the shooting
incident?
A: Inside our office, Air Operation Center.
Q: And what exactly did he tell you about this shooting incident?
A: He came and told me that his companion, M/Sgt. Emerme
Malit, was shot to [death].
Q: Where?
A: At [the roadside] eatery, at Gov. Camins [Road].
Q: And what else did he tell you?
A: And he told me that Airman Manijas was the perpetrator or
the one who [shot] M/Sgt. Emerme Malit.
Accused-appellant likewise cites the following testimony of T/Sgt.
Bona which he claims is doubtful: 33
Q: So, if you were there squatting, facing the wall of the Snack
House, how were you able to see thru the railings?
 A: At first when I dived or dropped myself, I was in a squatting
position and I was hiding. After a few seconds, that was
the time that I peeped.
Q: You are only saying it now. Earlier you said that, all the while
you were peeping while inside the Roadside Snack
House, you were in a squatting position?
A: Well, what I did, I proceeded to the side and I was in a
squatting position and at the same time hiding and later
on I peeped that was the time I saw the assailant.
He tries to discredit the testimony of M/Sgt. Armando Agadier by
referring to the latter's inability to describe what the assailant was
wearing on the night of the incident.
The records show that T/Sgt. Bona and M/Sgt. Agadier were
actually able to witness the incident and recognize accused-appellant. As
T/Sgt. Bona explained, after ducking he tried to find out what was
happening by looking through the slits in the wooden slabs on the
walls. 34 On the other hand, M/Sgt. Agadier saw the incident before he
suffered from hypertension. 35
The trial court thus correctly relied on the testimonies of T/Sgt.
Bona and M/Sgt. Agadier for its findings. Their narration of the events
dovetailed on pertinent points. These witnesses were candid and
remained steadfast under rigorous cross-examination. Moreover, no
reason has been shown why these witnesses would testify falsely against
accused-appellant. Their testimonies were worthy of the full faith and
credit accorded to them by the trial court. 36
Second. Accused-appellant assails the Report #C-026-99 on the
result of the paraffin test which shows his right hand to be positive for
gunpowder nitrates. Accused-appellant contends that the person who
examined the paraffin cast was not present when the cast was taken and,
therefore, was incompetent to testify on the findings or results. He also
claims that the results of the examination were inconsistent with the
allegation that an M16 Baby Armalite was used in the killing of the victim.
To begin with, it must be presumed that official duty was regularly
performed. 37 Strong evidence is necessary to rebut this
presumption. 38 In this case, accused-appellant has not presented any
evidence to show that the paraffin testing done on his person was
falsified. Nor can it be said that the persons who conducted the
examination had any ill motive or intention to falsely implicate
accused-appellant. ISEHTa
 Accused-appellant contends that firing an M16 Baby Armalite
requires the use of both hands. Since only his right hand was positive for
gunpowder nitrates, he could not have been the assailant. The contention
has no merit. There are several reasons which may explain why the
paraffin results came out as such. Forensic Chemist and Police Senior
Inspector Mercedes Diestro testified: 39
Q: Normally madam witness as a soldier or PNP personnel, in
firing an Armalite rifle, how many hands do they use, in
firing an Armalite rifle?
COURT:
No longer as a Forensic Chemist but as PNP officer.
A: One hand is at the trigger, one in the barrel.
ATTY. SADAIN:
Q: So, both hands are used?
A: Yes.
Q: So that madam witness if these two hands of certain person
are used in firing the Armalite and if you will conduct
paraffin test on these two hands will it be positive of gun
powder nitrates, both hands?
A: It could be.
COURT:
So, what is your explanation why there was no gun powder
nitrates on the left hand?
A: On this particular case, maybe Manijas or what, there are so
many factors why there is negative on the other side, the
other side is positive, either he uses his both hands on
that trigger wherein there is overlapping on one hands
before the other.
ATTY. SADAIN:
So that in that particular case only one hand will be affected by
the gun powder nitrates?
A: Yes.
Q: Despite the fact two hands are in the trigger?
A: Yes, because it is overlapping.
COURT:
One is covered by the other?
 A: Yes, Your Honor.
As pointed out by the Solicitor General, the victim sustained
gunshot wounds in his liver, second and third ribs and right lung, upper
right arm, and on the head which severed his scalp. The fact that different
parts of his body were hit shows that the assailant did not have control of
the armalite when he pulled the trigger. This raises the possibility that
only one hand was used when the trigger of the armalite was pulled.
Moreover, the paraffin testing on accused-appellant was done more than
twelve hours after the incident occurred. Hence, the partial or total
absence of nitrates on his hands is possible. 40
Indeed, there are several reasons why no nitrate powder may be
found on the hands of a suspect. We recognized several factors which
may account for such absence of gunpowder nitrates on the hands of the
gunman, e.g., because the assailant had washed his hands after firing
the gun or had worn gloves or the direction of a strong wind was against
the gunman at the time of firing. 41 In these cases, the Court ruled that the
absence of nitrates in a suspect's hand is not conclusive proof that he did
not fire a gun. 42
In any event, the paraffin test which in this case showed
accused-appellant's right hand to be positive for nitrates, constitutes only
corroborative evidence of his guilt. 43 Even without the paraffin test, the
positive identification by prosecution witnesses T/Sgt. Bona and M/Sgt.
Agadier of accused-appellant as the assailant is more than sufficient to
convict him of the crime charged.
Third. Accused-appellant Manijas asks why Frank Anuddin,
brother-in-law of victim M/Sgt. Malit, was not investigated, when the fact
is that he was the initial suspect in this case and the results of paraffin
testing showed both his hands to be positive for gunpowder nitrates.
SPO1 Acuña explained that no case was filed against Frank Anuddin
because there were no witnesses against him. On the other hand, as
already stated, accused-appellant was positively identified as having
been at the scene of the crime by two witnesses who have not been
shown to be biased. Neither did the family of the victim believe that
Anuddin had any participation in the incident. 44 In any event, the fact that
Anuddin was involved in the shooting does not rule out the participation of
accused-appellant. After all, as T/Sgt. Henry Bona and M/Sgt. Armando
Agadier said, they saw another man beside accused-appellant although
they did not recognize him. The man fled from the scene of the crime
together with accused-appellant.
Fourth. Accused-appellant's defense is anchored on denial and
alibi. He claims that, at the time of the shooting, he was in the company of
Airman Artazo at the "Daishita Karaoke Bar," and that afterwards he went
to his cousin's house in Baliwasan Chico before finally going home to
Edwin Andrews Air Base. aAEHCI

Alibi may be considered exculpatory when the guilt of the accused

is not established beyond cavil. 45 In such a case, the accused must not
only prove that he was elsewhere at the time of the commission of the
crime but that it was physically impossible for him to have been at the
scene when the crime took place. 46 Here, however, accused-appellant
was positively identified as the assailant. In addition, his own witness,
Airman Artazo, testified that he left accused-appellant Manijas at
the karaoke bar at around 2:30 o'clock in the morning. Accused-appellant
claimed that from the "Daishita Karaoke Bar" he went to his cousin's
house at Baliwasan Chico, but that when he got there he found the entire
household already asleep. Accordingly, he went home to the air base.
There was thus no witness where accused-appellant was between 2:30
o'clock to 3:30 o'clock in the morning of May 28, 2000 when the crime
was committed as he was all by himself. However, no one could
corroborate his story.
Nor was it shown that it was physically impossible for him to have
been at the scene of the crime. It was entirely possible that he went
directly to the vicinity of the snack house from the karaoke bar where
Airman Artazo had left him. The places in which accused-appellant
claimed he was were not far from the crime scene. In fact, according to
accused-appellant himself, he passed by Gov. Camins Road where the
crime was committed when he went home to the air base.
Fifth. We agree, however, that the prosecution failed to prove
conspiracy. This must be shown as clearly and conclusively as the
commission of the crime itself. 47 Mere suspicion, speculation,
relationship, association, and companionship do not prove
conspiracy. 48 T/Sgt. Bona testified that the crime was "planned," but no
proof was adduced to support this allegation or to explain how, why and
when such connivance was contrived.
We find, however, that there was treachery in the commission of
the crime. Treachery is a sudden and unexpected attack, without the
slightest provocation on the part of the victim. It exists when any of the
crimes against person is committed with the employment of means,
methods or forms which tend directly and specially to insure its execution
without risk to the offender arising from the defense which the offended
party might make. 49 In the case at bar, the attack was so sudden that the
victim M/Sgt. Malit was not even able to draw the gun tucked in his
waistband. What is more, the weapon used, an M16 Baby Armalite,
almost certainly made it impossible for the victim to defend himself with
his 45-caliber pistol.
The crime committed by accused-appellant Wilson Manijas is
murder qualified by treachery. Under Article 248 of the Revised Penal
Code, the penalty for murder is reclusion perpetua to death. The
aggravating circumstance of use of an unlicensed firearm, an M16 Baby
Armalite rifle, attended the commission of the crime.
This circumstance is offset by the mitigating circumstance of
voluntary surrender. As already noted, after learning that he had been
found positive for gunpowder, accused-appellant lost no time in reporting
to the authorities and surrendered. We agree, therefore, that the
mitigating circumstance of voluntary surrender should be appreciated in
accused-appellant's favor.
WHEREFORE, the decision of the Regional Trial Court,
Zamboanga City, Branch 16, is AFFIRMED.
SO ORDERED.
(People v. Manijas y Lim, G.R. No. 148699, [November 15, 2002], 440
|||

PHIL 425-448)

FIRST DIVISION

[G.R. No. 112990. May 28, 2001.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

LEMUEL COMPO @ DODONG and MAURICIO
GONZAGA @ LONGLONG, accused.

LEMUEL COMPO @ DODONG, accused-appellant.

DECISION

PARDO, J : p

Accused Lemuel Compo appeals from the decision of the

Regional Trial Court, Bohol, Branch 1, Tagbilaran City, finding him
guilty beyond reasonable doubt of murder and sentencing him
to reclusion perpetua and to indemnify the heirs of Procopio Dales in
the amount of fifty thousand pesos (P50,000.00) and twenty thousand
pesos (P20,000.00) as moral and exemplary damages. 1
On March 17, 1992, Second Assistant Provincial Prosecutor of
Bohol Rodolfo R. Ligason filed with the Regional Trial Court, an
information charging Mauricio Gonzaga and Lemuel Compo with
murder, committed as follows: ASICDH

"That on or about the 1st day of March, 1992, in the

municipality of Loboc, province of Bohol, Philippines and within
the jurisdiction of this Honorable Court, the above named
accused, conspiring, confederating and mutually helping with
one another, with intent to kill and without justifiable cause, with
evident premeditation, treachery and abuse of superior strength,
did then and there willfully, unlawfully and feloniously attack,
assault and shoot with the use of a small arrow locally known as
"Indian Pana" and stab with the use of a small sharp-pointed
bolo one Procopio Dales who was unarmed and unaware of the
attack, thereby inflicting mortal injuries on the victim's body
which resulted in the death of the said Procopio Dales; to the
damage and prejudice of the heirs of the deceased in the
amount to be proved during the trial.
"Acts committed contrary to the provisions of Article 248
of the Revised Penal Code, as amended." 2
Upon arraignment on July 9, 1992, the two accused pleaded not
guilty. 3 Trial on the merits ensued.
In the evening of February 29, 1992, Gilberto Libardo 4 , a
conductor of a passenger bus, went to a disco place located at sitio
Tambis, barangay Oy, Loboc, Bohol. On March 1, 1992, around 1:00
in the morning, Libardo with three companions left the disco house
and while they were walking toward his house, Mauricio
Gonzaga alias "Lolong" and Lemuel Compo alias "Dodong" suddenly
accosted him and asked whether he had seen Procopio
Dales alias"Opiong". He answered that Opiong was still in the disco
house. Mauricio was carrying a small bolo in his right hand and a
scabbard in his left hand. Accused Compo was holding an "Indian
Pana" and a flashlight. On their way home to Calunasan, Norte, Loboc,
Bohol, they saw Procopio Dales standing in the middle of the road
holding a piece of wood. Lemuel lighted his flashlight toward the
direction where Procopio was standing. When Procopio Dales tried to
attack Mauricio with a piece of wood, he picked up a piece of stone
and hit Dales in the right shoulder causing the latter to stagger and
rush toward him with small bolo in his hand. He took another piece of
stone and hit Dales again causing the small bolo to drop to the ground.
Mauricio picked up the small bolo and stabbed Procopio Dales several
times until he fell to the ground. Finding several "Indian Pana" in the
possession of Procopio Dales, he took one of them and hit Dales with
the "Indian Pana," which imbedded in his neck. At the time of the
stabbing incident, Lemuel Compo was not lighting his flashlight toward
the body of Procopio Dales. Lemuel Compo only used the flashlight
when Mauricio Gonzaga threw a stone at Procopio Dales. 5
PO3 Pedro Wate of Lila Police Station testified that at around
2:30 in the morning of March 1, 1992, Antonina Gonzaga, the mother
of Mauricio Gonzaga, went to the house of PO3 Wate at Barangay
Calunasan, Loboc, Bohol, asking his help in surrendering her son who
had stabbed someone. While on their way to the Gonzaga's residence,
they met Mauricio and Lemuel. Mauricio immediately confessed that
he killed Procopio Dales. After Mauricio handed the bolo to PO3 Wate,
the latter brought Mauricio and Lemuel to Loboc Police Station and
turned them over to station guard PO3 Aliceto Torreon.6
Dr. Evangeline B. Delfin who examined the victim testified that
he sustained 13 wounds five (5) were classified as fatal wounds while
seven (7) were non-fatal wounds. 7 The autopsy report 8 states:
"xxx xxx xxx
"II. Post-Mortem Findings:
"A male, fairly nourished, fairly developed, about 5 ft. or less in
height, lying in supine position with multiple stab wounds on his
face, neck, chest, abdomen and back. SCHIcT

"III. Regional Findings:

"Face: a) At the left side a stab wound, entrance 1.5 cm.
in dia. at mandibular area.
"b) Stab wound 2.5 cm. in dia. at the left side of the face
near auricle.
"Neck: a) Stab wound 2 cm. in dia. at anterior triangle of
the neck left side hitting the common carotid
artery, jugular vein, vagus nerve.
"b) Punctured wound .5 cm. in dia. at left supraclavicular
fossa hitting the left subclavian artery, common
carotid artery.
"Chest: a) Stab wound 2.5 cm. in dia. left, chest, anterior
axillary hitting the lateral side of the heart.
"Abdomen: a) Stab wound 2.5 cm. in dia. Left
hypochondrium.
 "b) Stab wound 2 cm. in dia. at left lumbar hitting the
descending colon.
"c) Stab wound 1 cm. in dia. at right subcostal area
through and through to the back, exit, hitting the
transverse colon, partly the right, lobe of the liver.
"Back: a) Stab wound 1 cm. in diameter at posterior
axillary area.
b) Left Scapular Area
a) 2 cm. in dia. — superior angle
b) 3cm. in dia. — body of the scapula
c) 2.5 cm. in dia. — inferior angle
"Conclusion:
Cause of death: Hypovolemic shock secondary to severe
hemorrhage due to laceration of the blood vessels that supply
the brain, heart, & destruction of the liver (partly), transverse
colon, Descending colon."
Accused Lemuel Compo interposed the defense of alibi and
denial. He claimed that on March 1, 1992, at around 7:00 p. m., he
was in the store of Pedro Wate to watch a betamax show. Mauricio
Gonzaga invited him to go to the disco house. They arrived at the
disco house at around 12:00 midnight, shortly afterwhich, they
decided to go home. On their way home, they saw a person standing
in the middle of the road whom Mauricio identified as Opiong. Lemuel
focused his flashlight on the person and he recognized Procopio
Dales before the latter got lost on the road. When they reached the
corner of the road, they met Gilberto Libardo together with three
companions. Mauricio asked Libardo whether he saw Procopio Dales
and the former answered no. Lemuel and Mauricio walked toward a
lower portion of the road where Lemuel focused his flashlight and they
saw Procopio Dales carrying a piece of wood. They moved backward
while Lemuel focused his flashlight toward Procopio Dales whom he
saw. Suddenly Lemuel stumbled. He ran away and went home. He
took his supper and went to sleep. In the meantime, Mauricio
Gonzaga arrived at his house and woke him up telling him that he
stabbed to death Procopio Dales. Mauricio Gonzaga asked him to
accompany him to surrender to the authorities when Pedro Wate and
Mauricio's mother arrived. 9
On May 11, 1993, the trial court rendered a decision, the
dispositive portion of which reads as follows:
 "PREMISES CONSIDERED, the Court finds the accused
Mauricio Gonzaga and Lemuel Compo guilty of the crime of
murder punished under Article 248 of the Revised Penal Code
and hereby sentences each one of them to suffer an
imprisonment of Reclusion Perpetua, with the accessories of
the law and to pay the cost.
"The accused Mauricio Gonzaga and Lemuel Compo are
further ordered each to indemnify the heirs of the late Procopio
Dales in the amount of Fifty Thousand Pesos (P50,000.00)
each, and Twenty Thousand Pesos (P20,000.00) each
representing moral and exemplary damages and in both
instance without subsidiary imprisonment in case of insolvency,
with the accessories of the law and to pay cost.
"The bolo used in the commission of the crime is hereby
ordered forfeited in favor of the government.
"SO ORDERED. aSCDcH

"(Sgd.)
"Antonio H. Bautista
Judge." 10
On May 26, 1993, accused Lemuel Compo filed with the trial
court a notice of appeal. 11
In this appeal, accused-appellant imputes a single assignment
of error to the trial court, 12 thus: "The trial court erred in finding the
accused-appellant guilty beyond reasonable doubt of the crime of
murder." 13
Lemuel, as related by witness Mauricio Gonzaga, was merely
present before the stabbing incident, holding a flashlight. No other
overt act was established to prove that Lemuel shared and concurred
with the criminal design of Mauricio. The mere presence of Lemuel,
who was not shown to be armed, at the scene of the crime does not
connote conspiracy. Singularity of purpose and unity in the execution
of the unlawful objective are essential to establish conspiracy. 14
Mere knowledge, acquiescence, or agreement to cooperate, is
not enough to constitute one as a party to a conspiracy, absent any
active participation in the commission of the crime, with a view to the
furtherance of the common design and purpose. 15 Conspiracy
transcends companionship.16 The presence and company of Lemuel
were not necessary or essential to the perpetration of the murder.
Neither can Lemuel be considered an accomplice. Article 18 of
the Revised Penal Code provides that an accomplice is one who, not
 being a principal, cooperates in the execution of the offense by
previous or simultaneous acts. To be convicted as such, it is
necessary that he be aware of the criminal intent of the principal and
then cooperate knowingly or intentionally by supplying material or
moral aid for the efficacious execution of the crime. 17 The prosecution,
however, failed to present convincing evidence establishing that
accused-appellant Lemuel knew of the other accused's intent to kill
Dales. Again, his mere presence at the scene of the crime and his
flight therefrom with the other accused are not proof of his
participation in the crime. The quantum of proof required in criminal
prosecution to support a conviction has not been reached with regard
to accused-appellant Lemuel. The oft-repeated truism that the
conviction of an accused must rest not on the weakness of the
defense but on the strength of the prosecution's evidence
applies.18 He must, therefore, be acquitted on reasonable doubt. AaEcDS

We are convinced that the prosecution failed to overcome the

constitutional presumption of innocence. Basically, accused-appellant
Lemuel was convicted based on the testimony of the conductor of
passenger bus Gilberto Libardo who saw Lemuel carrying an "Indian
Pana" and a flashlight. Without any testimony positively identifying
accused-appellant as the assailant nor any evidence directly linking
him as the author of the crime, Lemuel Compo can not be convicted of
the murder of Dales. The accused-appellant deserves an acquittal
and must forthwith be given back his liberty.
WHEREFORE, on reasonable doubt, the appealed decision is
REVERSED and accused-appellant Lemuel Compo @ Dodong is
hereby ACQUITTED and ordered RELEASED immediately, unless he
is detained for some other legal cause.
The Director, Bureau of Corrections is ordered to show to this
Court proof of compliance herewith within ten (10) days.
Costs de oficio.
SO ORDERED.
(People v. Compo, G.R. No. 112990, [May 28, 2001], 410 PHIL
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514-522)