G.R. No.

75267 September 10, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARLOS DELA CRUZ y VENANCIO alias "BOSYO", accused-appellant.

The Solicitor General for plaintiff-appellee.

Ponciano G. Hernandez for accused-appellant.

FELICIANO, J.:

There are not many crimes more morally repugnant than the sexual violation of a young child.
This case involves such a crime: rape committed, with the bravado of evil, in a place dedicated
to prayer and worship of the Supreme Being. Accused-appellant was charged with raping a 7-year
old girl in Criminal Case No. SM-2219 in a complaint which read as follows:

Criminal Complaint

The undersigned complainant, Marciano Venancio, father of the minor, Brigida

Venancio accuses Carlos dela Cruz y Venancio alias "Bosyo" of the crime of rape,
penalized under the provisions of paragraph 3, Art. 335 of the Revised Penal
Code, committed as follows:

That on or about the 6th day of September, 1980, in the municipality of Sta.
Maria, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Carlos dela Cruz y Venancio alias "Bosyo", with
lewd designs, did then and there wilfully, lawfully and feloniously had carnal
knowledge with a seven-year old girl, Brigida C. Venancio, against her will and
consent committed with force and violence.

Contrary to law. 1
(Emphasis supplied)

The accused during the arraignment pleaded not guilty. After trial and in due course of time, on
20 February 1985, the trial court rendered a decision, the dispositive portion of which stated:

WHEREFORE, finding the accused Carlos dela Cruz y Venancio, guilty beyond
reasonable doubt of the crime of rape defined and penalized under Article 335
(3) of the Revised Penal Code, as amended, he is hereby sentenced to Reclusion
Perpetua. He is furthermore ordered to indemnify the victim Brigida Venancio, in
the amount of P30,000.00.

SO ORDERED. 2

The evidence of the prosecution tended to establish the following:

At about 8:00 o'clock p.m. on 6 September 1980, Brigida Venancio—then barely seven (7)
years old 3
— was walking through a heavy rain, alone and without an umbrella, bound for her
grandparents' house. While Brigida was passing by the Chapel in Sta. Cruz, Sta. Maria, Bulacan,
the accused Carlos dela Cruz y Venancio, a blood relative of Brigida (the record does not disclose
in what civil degree), suddenly reached out from the doorway and grabbed Brigida's arm and
pulled her inside the Chapel. In the Chapel, where it was dark the lights being off, the accused
led her to the last pew, pinned her down on the pew and removed her panty. 4
Accused also
removed his pants and immediately introjected or sought to introject his penis into little
Brigida's private organ. While so engaged, the accused covered Brigida's mouth with his one hand
twisted her arm with his other arm. Accused succeeded in placing his organ on top and at least
partially into Brigida's private part. 5
Shortly, thereafter, while the two (2) lay down on the
pew, head to head, with panty and pants on, respectively, two (2) young parishioners
Luzviminda Mendoza and Marilou Carpio, entered the Chapel for a scheduled prayer rally and
switched on the lights. Luzviminda Mendoza saw Brigida, who immediately stood up almost
simultaneously with the accused, dazed and soaking wet. 6
Another parishioner Mrs. Francisca
Mendoza, Brigida's teacher in Grade I primary school, arrived in the Chapel a little later. She too
saw Brigida and the accused and wondered why she was still abroad rather than at home at such
a late hour. 7
Mrs. Mendoza advised Brigida to go home immediately which Brigida did. On her
way back to her parents' house, Brigida met Luzviminda Mendoza's father, Mang Domeng, who
on noticing her dazed condition accompanied her home to her doorstep.8

After the rally, Luzviminda who was an aunt of Brigida, did not go home directly but went to
the house of Brigida's parents 9
and asked the mother why Brigida was soaking wet and still not
at home at that late hour. After Luzviminda had left, the mother asked Brigida what had
happened. Brigida then told her mother she had been violated by Carlos "Bosyo" dela Cruz. 10

The next day, 7 September 1980, Brigida and her parents and accompanied by Marilou Carpio
went to the office of the Police Station Commander of Sta. Maria, Bulacan, and reported the
rape of Brigida by the accused and had the matter reflected on the police blotter. 11
In the
afternoon of the same day, Brigida was brought by her parents to the National Bureau of
Investigation ("NBI") office in Manila for medical examination. 12
The examination was conducted
by Dr. Nieto M. Salvador who issued a Medico Legal Report dated 7 September 1980 which set
forth the following

FINDINGS

General Physical Examination:

Height: 67 cms. Weight: 20 kgs.

Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory

subject.

Breasts infantile.

No evident sign of extragenital physical injuries noted.

Genital Examination:

Pubic hair, absent. Labia majora and minora, coaptated. Fourchette tense.
Vestibule, reddish and congested. Hymen, intact. Hymenal orifice, minular admits
a tube 0.5 c.m. diameter.
 Conclusion:

Hymen intact. 13

Brigida's parents, however, did not think very much of the medical examination
conducted by Dr. Salvador. Brigida's mother later testified in court that she
believed the examination had been done hurriedly and cursorily and
haphazardly. 14
Notwithstanding the conclusion of Dr. Salvador's report that
Brigida's "hymen [was] intact", Brigida's parents were determined to pursue their
complaint on behalf of Brigida. They were not, however, able to lodge one
immediately against the accused, since the police investigator was not in his office
whenever they went to the police station. 15
Thus, on 18 September 1980,
Brigida and her mother went to the Philippine Constabulary Criminal Investigation
Service (CIS) at Camp Crame for assistance. There, Brigida was again examined by
PC Medico-Legal officer Dr. Desiderio Moraleda who made the following

FINDINGS:

General and Extragenital:

Fairly developed, fairly nourished and coherent female subject. Breasts are
undeveloped. Abdomen is flat and tight. There are not external signs of recent
application of any form of trauma.

Genital:

There is absence of pubic hair. Labia majora are full, convex and gaping with the
pale brown labia minora presenting in between. On separating the same are
disclosed a congested vulvar mucosa, a tight and intact fourchette and an elastic,
fleshy-type hymen with a deep, healed laceration at 6 and shallow, healed
laceration at 3 and 9 o'clock. External vaginal orifice offers strong resistance to
the introduction of the examining index finger.

Vaginal and peri-urethral smears are negative for gram-negative diplococci and for
spermatozoa.

Remarks:

Subject is in non-virgin state physically. 16

The defense's version of the facts was simply that the rape never happened. The accused
testified that he had come from work and stopped by and stayed at the Chapel waiting for the
rain to stop. 17
He dozed off, he said, and upon waking up, found a child sleeping on a pew some
little distance from where he himself had fallen asleep. He testified that he saw Mrs. Francisca
Mendoza talk to the child; that he had not done anything to Brigida; that he had not inserted
his organ into Brigida's private part; and he had not removed her panty nor lain on top of
her. 18

The accused's bare denial was not corroborated by any other witness. Luzviminda Mendoza's
testimony, even if presented by the defense, strongly suggested that something out of the
ordinary had happened on the evening of 6 September 1980 inside the Sta. Cruz Chapel; for, as
noted, she proceeded to Brigida's home right after the prayer rally, indicating that finding the
child Brigida with the accused in the Chapel in such a condition—soaked to the skin and dazed—
had aroused her concern.

Upon the other hand, the testimony of the child Brigida in open court was starkly simple and
straightforward. She said:

Atty. Regalado:

Q Brigida, do you know a person by the name of Carlos dela Cruz

or "Bosyo"?

A Yes, sir.

Q If he is inside this courtroom, can you point to him?

A That man (witness pointing to a man who responded to the

name of Carlos dela Cruz).

xxx xxx xxx

Q Ida, you earlier said that you have a complaint please tell us
what that complain was? You are complaining against whom?

A Bosyo, sir.

Q Why? Ida, did you also complain to your mother about Bosyo?

A Yes, sir.

Q What did you complain to your mother about?

A Bosyo undressed me, sir.

Q Are you also making the same complaint here or what?

A The same, sir.

xxx xxx xxx

Court:

Proceed.

[Atty. Regalado:]

Q On the night that you reported to your mother, what exactly

did you tell your mother on the night you reported it to your
mother?
 A That Bosyo "hinubaran po ako ni Bosyo at inilabas niya and
kanyang titi at inilagay sa kiki ko po".

Q What else did he do to you?

A He covered my mouth with his hands.

Q What else?

A He twisted my arm, sir.

Q Will you please show the Honorable Court how your arm was
twisted by the accused?

A This way, sir. (Witness holding her right wrist by her left hand
and twisting the same.)

Q Now Bosyo you said "hinubaran ka. . . "

Court:

Was the panty removed?

Atty. Hernandez:

We agree to that translation, your Honor.

Court:

Go ahead.

Atty. Regalado:

Q When Bosyo pulled down your panty, will you please state before
this Honorable Court how he put down your panty?

A (Witness showing that her panty was being put down.)

Q When your panty was down already, what did Bosyo do, if any ?

A He put his penis on my vagina, sir. (Witness demonstrated by

movements)

Court:

Q Were you sitting or standing at the time or were you lying?

A I was lying sir.

Q And how did he do it?

 A (Witness demonstrated the manner how Bosyo laid on top of
her.)

Court:

Proceed:

Atty. Regalado:

Q At the time, what place was that where you said you were
lying?

A On a long bench, sir.

Q Approximately, if you can remember what time was that in the

evening?

A Around 8:30 in the evening, sir.

Q Where did the incident happen?

A Inside the chapel, sir.

Q You said chapel, what chapel was that?

A Sta. Cruz, Sta. Maria, Bulacan, sir.

Court:

Aside from you and Bosyo, were there other persons there?

A None, sir.

Atty. Regalado:

Q How many minutes did this Bosyo had the opportunity of

putting his penis in your vagina?

A Quite a few seconds, sir.

xxx xxx xxx 19

(Emphasis supplied)

The trial court which heard Brigida's testimony from beginning to end, found that her
statements had the ring of truth and were convincing. The trial court said:

The Court is not unmindful of that judicial pronouncement deeply embedded in

jurisprudence that the accusation for rape is easily made, hard to prove, but
harder to be defended by the party accused, though innocent. (U.S. v. Flores, 26
Phil. 262). In this case, however, it is inconceivable and it is extremely difficult
 for the Court to believe that a seven year old girl, unmotivated and so blissfully
innocent could concoct a narration such as she testified to in Court . That she did
not complain to her Aunt or to her teacher when the two found her in the
Chapel with the accused is understandable. She was so young, just a child. She
must have been shocked by what has been done to her by the accused. No
wonder she was speechless. She could not comprehend what happened. The pain in
her vagina when she urinated upon reaching home however must have been such
that constrained her to tell her mother what the accused did to her.

Against the narration of a guileless 7 year old girl, the mere denial and
protestation of innocence of a 25 year old man cannot prevail. The Court is
thoroughly convinced of the truth of Brigida Venancio's story. No more need be
said. 20
(Emphasis supplied)

We find no basis for disagreeing with the evaluation of the trial court.

The appellant, however, insists that the charge against him had not been established beyond
reasonable doubt. He urges that there is significant variance between the result of the medical
examination conducted on Brigida by the NBI doctor, Dr. Nieto M. Salvador, who found Brigida's
hymen to have been "intact" and the result of the examination conducted a few days later by
the Philippine Constabulary CIS physician, Dr. Desiderio Moraleda who concluded that Brigida was
then "in a non-virgin state". Accused submits that the finding of Dr. Salvador should prevail over
that of Dr. Moraleda since the findings of the former were obtained barely twenty-four (24)
hours after the alleged rape had occurred while Dr. Moraleda examined Brigida some eleven (11)
days after the violation. Accused further argues that even assuming the truth of Brigida's
testimony in open court, such testimony indicated that the accused's male member was merely
placed on top of the private part of the victim Brigida and had not passed into
it, 21
and that there was no proof at all that his male member had penetrated into the female
opening of the victim.

Apropos the above argument, we note, firstly, that medical findings are not indispensable in the
prosecution of the crime of rape. 22
We note, secondly, that the fact that a woman's hymen is
found intact does not show that there had been no penetration by an accused's male organ. It is
well-settled doctrine that the slightest penetration of the pudenda is quite sufficient for the
consummation of the crime of rape. In People v. Abonada, 23
the Court pointed out that "the
medical finding that the hymen is intact does not negate rape. Penetration of the penis by
entry into the lips of the female organ even without rupture or laceration of the hymen suffices
to warrant conviction for rape." 24
Moreover, Dr. Salvador testified that he had found physical
evidence of "manipulation" of the vagina or the vestibule thereof, which is consistent with entry
into the lips of the female part of Brigida:

Court:

Q You use the word manipulation, what was manipulated?

A The attempt to insert a finger or in some other cases

wherein the man attempts to insert his erected penis on the child
whose genitalia is not yet ripe, with that particular act, there is
no way that the penis can go inside the vaginal opening because at
this age, the vaginal opening is still narrow, normal, .5 cms.
 Q In this particular case of Brigida, there were signs that there
were manipulations?

A I think so because the appearance is reddish which is not

normal, it should be pinkish. (Emphasis supplied)
25

Dr. Moraleda's finding, upon the other hand, was that Brigida's hymen had in fact been
lacerated, showing that there must have been some penetration. The fact that Dr. Moraleda's
examination of Brigida took place eleven (11) days after the examination by Dr. Salvador does
not impair the credit worthiness of Dr. Moraleda's findings. It is important to note, moreover,
that the testimony of the child Brigida herself is quite consistent with the findings and
testimony of both Dr. Salvador and Dr. Moraleda that there had been some penetration at least
of the labia of Brigida's female part. Brigida's testimony stated, in relevant part:

Court:

Q Ida, you said he put his penis into your vagina, does his penis
get into your vagina or not?

A Only on top, sir.

Q It did not go in.

A No, sir.

Q And did you feel any pain or you did not feel any pain?

A Yes, sir, I felt pain, sir.

Q Why did you feel pain, what pain? Where was the pain on your
vagina or your body as a whole?

A In my vagina, sir.

Q Was medical report?

Fiscal:

The record of the fiscal's office show there were two medical
examinations.

Court:

Q Ida, you said a short time did you urinate at that time?

A Yes, sir.

Q What about this Bosyo did he urinate?

A No, sir.
 Q How do you know you urinated?

A (Witness does not answer.)

Q Did you know whether something came out from the penis of
Bosyo?

A Sticky fluid and dropped on my thigh.

Q But you said you urinated, when did you urinate at the time or
when?

A When I went home, sir.

Q Did you notice any or rather did you notice whether or not
there was blood around the area of your vagina?

A No, sir. 26
(Emphasis supplied)

Brigida's statement that she had felt pain in her private part would have been
incomprehensible if there had been absolutely no penetration, not even of the labia by
the accused's male organ. It appears to the Court that the 7-year old Brigida was much
too young to be capable of distinguishing between the penis merely lying outside the
vagina and on top of the pubes, from the erect penis poking into the labia in the effort
to get into the vaginal canal, but being unable to do so because of the unripe or infantile
condition of the canal. We agree with the conclusion of the trial court that there had in
fact been some penetration at least of the labia and that consequently, the crime that
was committed was consummated rape.

It was proven at the trial that the violation of the child Brigida took place in the Sta. Cruz
Chapel in Sta. Maria, Bulacan, a building dedicated to and actively used for religious worship. The
criminal information did not apparently specify the place of the commission of the rape.
Nonetheless, the trial court could have and should have found the presence of the generic
aggravating circumstance of commission of the offense in a place dedicated to religious
worship. 27
The trial court made no mention of such aggravating circumstance in its decision.
Because the appropriately imposable penalty of reclusion perpetua is an indivisible penalty, and
was in fact imposed by the trial court, the finding that we here make of the presence of this
generic aggravating circumstance, does not impact upon the imposable penalty. 28

WHEREFORE, the Decision of the trial court dated 20 February 1985 must be, as it is hereby,
AFFIRMED. Costs against appellant.

SO ORDERED.

G.R. No. L-49761 September 21, 1987

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ESPERIDION ALEGARBES, JR., defendant-appellant.

YAP, J.:

In a decision dated December 15, 1978, the then Court of First Instance of Lanao del Norte,
Branch III, Iligan City, convicted the accused Esperidion Alegarbes, Jr. for the murder of
Arlington Rara and sentenced him to death, and to pay the heirs of the victim the amount of
P12,000.00 by way of compensation for the death of the victim, and P10,000.00 by way of
moral damages.

This case is before us on automatic review on account of the death penalty imposed on the
accused.

The prosecution's version is as follows: The crime was committed at about 8:30 o'clock in the
evening of April 23, 1978 right in the poblacion of Bacolod, Lanao del Norte. Earlier that
evening, the victim Arlington Rara was mauled by a group of men led by a certain Gorio Balani.
Rara was still lying in the middle of the road when two soldiers, in the company of some
civilians who reported the incident, arrived. The two soldiers raised Rara up and led him to a
store nearby where he could sit. They investigated Rara about the incident. Rara could not
Identify his assailants as he was not a resident of the place, so the two soldiers decided to bring
Rara to their checkpoint to rest.

Before they could take Rara to the checkpoint, the accused Esperidion Alegarbes, Jr., who was
then a soldier connected with the 40th Infantry Battalion and designated as Assistant Chief of
the Military Police assigned in Bacolod, Lanao del Norte, arrived. Alegarbes Jr. started
investigating Rara. When Rara could not Identify the persons who mauled him, being a stranger
to the place, Alegarbes immediately hit Rara with the back of his left hand, causing the latter
to fall to the ground. Alegarbes pulled the victim's hair with his left hand and raised him.
Thereafter, Alegarbes fired his revolver at the side of Rara, but not hitting him, and again asked
him for the Identity of the person who mauled him. When Rara could not name his attackers,
Alegarbes took off the victim's belt and whipped him with it until its buckle was taken off.

Rara knelt before Alegarbes and asked forgiveness. That act apparently angered Alegarbes and he
asked the victim why he should ask for forgiveness from him when he was not God and he was
not the one who mauled him. Immediately after saying this to the victim who was still kneeling
before him, Alegarbes Pulled his hair with his left hand and simultaneously drew his revolver with
his right hand and shot the victim pointblank, hitting him on the neck. The victim fell down,
sitting on the ground, with head bent downward.

One of the soldiers present approached the victim and verified where he was hit. Alegarbes must
have come to his senses, for he ordered those present to take Rara to a doctor. Rara was
already hovering between life and death when he was brought to the clinic of Dr. Daranan, where
he died shortly thereafter despite efforts to save his life.
The victim's cadaver was brought to the Municipal Auditorium where it was autopsied by Dr.
Guillermo Layos, the Municipal Health Officer of Bacolod, Lanao del Norte. The doctor issued a
post-mortem report 1 wherein he stated the following findings:

1. Wound bullet about 1/3 cm. diameter, edge inward, over the anterior aspect
neck, about 1 cm. below the adam's apple, on probing it is directed slightly
posteriosly upward.

2. Powder burns over the exterior aspect of neck.

According to the doctor, who testified at the trial, the presence of powder burns on the neck
of the victim showed that the gun was fired only about one (1) foot away by his assailant.

The version of the defense was as follows: At 9:00 o'clock in the evening of April 23, 1978, he
was on patrol in the market place of the poblacion of Bacolod, Lanao del Norte. When he was at
the checkpoint, a civilian reported that a person was being mauled by a group of men. When the
accused was told that a person was lying on the road, he got his service rifle (Armalite) and
proceeded to the place. He was also armed with a hand grenade. He had no other firearm When
he was on his way to the place where the person was allegedly mauled, the accused heard a
shot. By experience, he knew that the shot was from a.22 caliber firearm. When he arrived at
the place, he was informed that five persons participated in the mauling. Then, a person passed
at his back and tried to assault him, so he blocked him with his Armalite and fired a warning
shot upward. Another civilian told appellant that his warning shot hit somebody and he answered
that it was impossible for him to hit anybody because he fired his shot upward with his
Armalite. The accused then inspected the victim and when he saw the wound in the neck, he
ordered that the victim be brought to the clinic.

From the evidence adduced by the prosecution and the defense, the court a quo made the
following findings: In the evening of April 23, 1978 at around 7:00 o'clock, the victim Arlington
Rara, was seen lying unconscious on the road at the poblacion of Bacolod near the house of
Pablita Mejorada who informed the persons in the store of Martin Pumicpic, who was her
neighbor, about the man lying on the road. Two persons, namely, Damian Argao and Andres
Pumicpic, who were then in the store went to the MP Detachment which was around 100
meters away to inform the soldiers of the presence of a man lying on the road. Two soldiers
from the detachment responded and went to the place where the man was lying unconscious on
the road and brought him to the premises of the store of Martin Pumicpic. They tried to find
out from the victim who were responsible for mauling him. He answered them that he did not
know. The two army men were about to bring him to the MP Checkpoint when the accused,
Esperidion Alegarbes, Jr. arrived at the scene. The accused was wearing short pants and a white
T-shirt. Alegarbes proceeded to investigate the victim Rara as to who mauled him. Rara could
not give the Identity of the person who mauled him. After repeated questioning by Alegarbes
and the same answer was given by Rara that he did not know who mauled him, the former
struck the latter with the back of his left hand, causing the latter to fall on the ground.
Alegarbes then followed this by pulling the victim's hair up, and, taking his revolver from his
waist, he fired toward the side of the victim but not hitting him. Still not getting an answer
from the victim as to who mauled him, Alegarbes then got hold of the belt of the victim and
whipped him 5 times at the back. The victim knelt before the accused and asked forgiveness.
Alegarbes answered, "Why should you ask forgiveness from me when I am not God and I was not
the one who mauled you?" Then he pulled up Rara by the hair and while doing so, he again took
his revolver from his waist and shot Rara hitting him on the neck, below the Adam's apple.

The trial court did not give credence to the accuser's defense that the victim tried to assault
him, firstly because the victim was already groggy after having been mauled by unknown persons.
Secondly, the three prosecution's eyewitnesses, namely, Damian Argao, Andres Pumicpic and Rey
Salvacion, belied the claim of the accused that the victim tried to assault him.

Appellant's assigned errors are as follows:

1. Lower court erreed in holding the accused responsible for the death of Arlington Rara, and in
convicting the accused of the crime of murder;

2. That, assuming the accused to be responsible for the death of Arlington Rara, the lower
court erred in considering against the accused the qualifying circumstance of treachery;

3. That, assuming the accused to be responsible for the death of Arlington Rara, the lower
court erred in considering against the accused the ordinary aggravating circumstances of abuse of
public position and cruelty;

4. That, assuming the accused to be responsible for the death of Arlington Rara, the lower
court erred in not considering in favor of the accused the mitigating circumstances of lack of
intention to commit so grave a wrong as that committed and voluntary surrender.

We find no merit in appellant's assignments of error.

The court's finding that the killing of the victim by the appellant was deliberate, intentional,
cruel and treacherous is supported by the testimonies of Damian Argao, Andres Pumicpic and Rey
Salvacion, who were eyewitnesses to the incident. None of the three had reason to testify
falsely against the appellant. The trial court believed the testimonies of these three witnesses,
and we have no reason to disturb its findings.

On the other hand, appellant's version was not corroborated. No witnesses, including his soldier
companions, testified for him.

It could not be true, as alleged by appellant, that he heard a shot when he was on his way to
the checkpoint. His version made it appear that the victim was already shot at the time he
arrived on the scene. But, according to the appellant, when he arrived at the scene, someone
tried to attack him from behind and he fired a warning shot upwards with his Armalite, which
probably hit the victim. The appellant's version is inconsistent. Besides, appellant's
uncorroborated version cannot prevail over the testimonies of three eyewitnesses who narrated
the true version of the incident.

Treachery was present in the killing, because the victim was not in a position to defend himself
when he was unexpectedly shot by the accused. Unarmed, he was a helpless victim of the
senseless assault by the accused.

The trial court likewise did not err in considering both aggravating circumstances of abuse of
public position and cruelty. Appellant undoubtedly took advantage of his public position as a
soldier, when he maltreated and killed a civilian victim of mauling, whom he was supposed to
protect in the performance of his duties.

The cruelty inflicted on the victim before the accused shot him, boxing him, belting him with his
(the victim's) own belt, threatening him by firing his pistol in the air, is abundantly clear. The
victim was kneeling and helpless, and yet the appellant with abuse of superior strength,
consciously and deliberately did everything to torture and intimidate him. His actuations showed
the appellant to be heartless and without mercy. He knew that the deceased was not the
aggressor, but was the victim of a physical assault by unknown persons, and yet for the flimsy
reason that the victim could not Identify those who mauled him, appellant decided to turn his
inexplicable ire on him.

The mitigating circumstance of voluntary surrender cannot be considered in his favor, because it
is not shown that there was a spontaneous acknowledgment by the accused of his guilt, or that
he wished to save the authorities from the trouble and expense incurred in his capture. In the
case at bar, appellant did not actually surrender to the police; what he did was merely to
inform the police headquarters about the incident. In fact, appellant tried to mislead the
authorities by claiming that he was not the one who shot the victim.

We find no reversible errors committed by the trial court in finding the accused guilty of the
offense charged beyond reasonable doubt.

Accordingly, the decision appealed from is hereby affirmed, with the modification that the
penalty imposed is reclusion perpetua, instead of death, in view of the provisions of the 1987
Constitution, and the indemnity is increased to P30,000.00. No costs.

SO ORDERED.

G.R. No. L-30956 November 23, 1971

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENCIO ORDIALES, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

N. Cruz Jr. for defendant-appellant.

REYES, J.B.L., J.:

Direct appeal to this Court in view of the capital punishment imposed against accused-appellant,
Florencio Ordiales, by the Court of First Instance of Rizal, Branch VII Pasay City, in its Criminal
Case No. 8114-P. The dispositive position of the said court's decision follows:
 WHEREFORE, this Court after having thus consider very carefully the evidence of
the prosecution and the defense, both testimonial and documentary, and the
exhaustive Memorandum of the Defense, finds accused FLORENCIO ORDIALES
guilty beyond reasonable doubt of the crime of murder, punishable under Art.
248 of the Revised Penal Code, committed with the aggravating and the
mitigating circumstances above mentioned and hereby sentences him to suffer the
penalty of death in the manner provided by law, to indemnify the heirs of
deceased Vicente Bayona in the amount of TWELVE THOUSAND PESOS
(P12,000.00) and to pay the costs.

The Amended Information charged accused-appellant Florencio Ordiales of the crime of murder
committed as follows:

That on or about the 4th day of November, 1968, in Pasay City, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused,
Florencio Ordiales y Abaro, being then a Confidential Agent of the City Mayor,
Pasay City, duly appointed and qualified as such, taking advantage of his public
position, with deliberate intent to kill, and with evident premeditation, and
treachery aforethought suddenly and unexpectedly, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot for several times on the vital
parts of the body, unarmed, Vicente Bayona, with a carbine the herein accused
was then provided with, which treacherous acts, tended to directly and specially
insure its execution, without risk to himself, from the defense that Vicente
Bayona may make, thereby inflicting upon the latter several mortal wounds, which
caused his instantaneous death.

That at the time of the commission of this offense the accused-Florencio Ordiales
y Abaro was provided with a motor vehicle, while he took advantage of, to
facilitate his escape from the scene of the crime.

All contrary to law, with qualifying circumstance of alevosia, and the aggravating
circumstances of (1) his public position (2) evident premeditation, and (3) the
use of a motor vehicle.

The evidence for the prosecution shows that on 4 November 1968, at 5:30 in the afternoon,
Vicente Bayona, with two companions, Daniel Brown Jr., and Rolando Cruz, were at the air-
conditioned room of Nad's restaurant, Libertad Street, Pasay City. While they were starting to
drink pepsi-cola and gin, accused-appellant Florencio Ordiales entered, asking Vicente Bayona, " Sino
ba ang minumura mo?" immediately firing at the latter a U.S. carbine, caliber .30, in rapid
succession. The victim was unable to answer because he was hit. Accused-appellant then put
down his firearm to look at Bayona, after which he left the restaurant and boarded a yellow
jeep parked outside. Two other persons were in the said jeep by the names of Bayani and
Magsakay.

Daniel Brown, Jr., ran away after the first shot, while the victim's other companion, Rolando
Cruz, was literally frozen with fear in his seat. Vicente Bayona died of multiple gunshot wounds
at 6:10 that same afternoon upon arrival at San Juan de Dios Hospital, Pasay City.1 The
assailant shot him at a distance of two and a half (2 ½ yards), more or less. 2 The slaying is
admitted by the accused.
The defense's own version of the incident was that accused- appellant saw Lt. Delfin Hernandez
at the lobby of the Pasay City Hall in the morning of 4 November 1968. The former asked the
latter if he could have, his carbin M-1 converted to an automatic one or M-2. Since the
accused-appellant did not have the carbine with him at the time, they agreed to meet at Nad's
restaurant at 5:30 that afternoon so he could deliver the carbine.

At past five of the said afternoon, accused-appellant went to the Nad's restaurant to keep the
appointment. While accused-appellant was looking for a place to sit in the air-conditioned room,
Vicente Bayona whistled at him, motioning him to come near. As soon as accused-appellant
approached Bayona, the latter said, "Tell the mayor the next year he will lose." Accused-
appellant answered, "Huwag naman ganon. Bakit hindi kayo magkasundo. Dati kayo magkasama ."
Vicente Bayona, however, shouted "Bastat sabihin mo talo na siya sa isang taon!" Accused-
appellant shouted back, saying, "Why don't you tell him? You are sending me to tell him!"

Vicente Bayona suddenly stood up with hands on waist and was able to approach accused-
appellant, holding the barrel of the latter's carbine. The victim's two companion also rushed at
accused-appellant whereupon, the latter stepped backward and fired at Bayona. The said
companion ran away after Bayona was fired upon.

Accused-appellant left the restaurant after Bayona fell and took a taxi at Taft Avenue near
Pasay Commercial Center with the intention of surrendering to the mayor. In the corner of
Malibay, accused appellant met Francisco Villa (who was going to be appointed Chief of Police
Pasay City later), so he stopped and told him that he shoot somebody and that he was going
to surrender. Villa, however, advised him to surrender instead to the NBI. Accused-appellant,
accompanied by Mr. Villa, then proceeded to Bankal to see NBI agent Mr. Aragon. Mr. Aragon,
who arrived in his house later was told what happened. He, in turn, accompanied accused-
appellant to the NBI where the latter surrendered to one Mr. Bayani with the carbine used in
the shooting.

The Court a quo found the aggravating circumstances of (a) abuse of official position, (b)
evident premeditation, and (c) use of superior force. However, it considered the use of superior
force as absorbed by the qualifying circumstance of treachery. The said court also found the
mitigating circumstance of voluntary surrender, offsetting one of the two remaining aggravating
circumstances. Hence, the death penalty was imposed. The use of motor vehicle which was
likewise alleged in the Amended Information was not appreciated by the court a quo for the
reason that the jeep was not used as a means to commit the murder.

The following are assigned as errors in accused-appellant's brief: The lower court erred in —

1. Convicting accused-appellant of the crime of murder qualified by treachery;

2. Giving full credence to the testimonies of the witnesses for the prosecution
which are full of serious and material contradictions, inconsistencies and manifestly
false assertions;

3. Sentencing accused-appellant to suffer the penalty of death;

4. Finding that the aggravating circumstances of (1) abuse of official position and
(2) evident premeditation are present in the commission of the offense;
 5. Not acquitting accused-appellant of the crime charged on the ground of self-
defense; and

6. Not acquitting accused-appellant on the ground of reasonable doubt.

There is nothing on record to warrant a reversal of the court a quo's finding that treachery
attended the killing of the deceased. The sudden and unexpected shooting of the victim with a
carbine constituted treachery. Authorities are clear that even when an attack or aggression is
made face to face, treachery or alevosia is nevertheless present when the attack is sudden and
unexpected to the point of incapacitating the victim to repel or escape it.3 Accused-appellant's
account as to what precipitated the shooting could not be believed. The statement, "Tell the
mayor that next year he will lose," or "Basta sabihin mo talo siya sa isang taon", could not be
attributed to the deceased who, being an avid campaigner of local mayoralty candidates, at least
from Mayor Cuneta's time up to the election of Mayor Jovito Claudio, certainly could not have
ignored that 1969 was not a mayoralty election year. On the other hand, it is admitted by the
prosecution that the deceased and his twin brother, Reynaldo, had repeatedly slandered the
incumbent mayor, since the latter disregarded the promise to make Reynaldo the chief of his
confidential agent stating that the promise was merely a joke. In fact, on the afternoon before
the shooting and when the brother met at Shanghai restaurant, Pasay City, the victim told
Reynaldo that he slandered the mayor again because the mayor refused to sign something which
the victim asked him to sign. The version of the prosecution that it was accused-appellant who
first confronted the victim with, " Sino ba ang minumura mo?" becomes more believable in the
light of what happened, and specially since it is not disputed that accused-appellant was present
at least in one of those occasions when the mayor was slandered. Defense witness Pedrito
Caballes impliedly so admitted by quoting Vicente Bayona as saying to accused-appellant before he
was shot "huwag mo akong pakialaman." Finally, prosecution witnesses Daniel Brown, Jr., and
Rolando Cruz corroborated each other in quoting accused-appellant as having said "Sino ba ang
minumura mo?" as against the lone denial of accused-appellant.

It is true that the deceased had two companions while accused-appellant was alone, but
superiority in number do not necessarily mean superiority in strength.4 These three men were all
seated and unarmed, and their movement was impeded by the table at which they sat. Their
positions even gave accused-appellant more advantage especially since he carried two firearms, a
carbine and a revolver. However, as correctly held by the lower court, abuse of superior strength
is absorbed in treachery and is inherent in the same.5

It is accused-appellant's contention, and error was assigned in this regard, that the testimonies
of the prosecution witnesses should not be given full credence because of alleged serious and
material contradictions, inconsistencies and manifestly false assertions. Our review of the evidence
demonstrates that the contractions were not on material points. The rule is settled in this
jurisdiction that appellate courts seldom disturb a trial court's appreciation of the credibility of
witnesses, in view of its opportunity to observe the demeanor and conduct of the witnesses
while testifying on the witness stand; and that said appreciation of the court below will
generally be accepted and acted upon favorably by the appellate courts, unless there is a material
circumstance which consequently might affect the result of the case.6 As already noted earlier,
the exeption does not obtain this case, hence, the finding of treachery is sustained.

We come next to the question of whether the aggravating circumstances of abuse of public
position and evident premeditation really attended the commission of the crime as found by the
court a quo. For abuse of public position under Article 14, paragraph 1, Revised Penal Code,7 to
be appreciated, it is not only necessary that the person committing the crime be a public
official; he must also use the influence, prestige or ascendency which such office gives him as a
means by which he realized his purpose. The essence of the matter is presented in the inquiry,
"Did the accused abuse his office in order to commit the crime?" 8 It is not shown that accused-
appellant took advantage of his position as confidential agent of Mayor Claudio in shooting the
victim, or that he used his "influence, prestige or ascendency" in killing the deceased. Accused-
appellant could have shot by Bayona without having finding occupied the said position. Thus, in
the absence proof that advantage was taken by accused-appellant his being a confidential agent,
the aggravating circumstance of abuse of public position could not be properly appreciated against
him. The Solicitor General also concedes this.9 The court a quo's finding that the said aggravating
circumstance is present can not, therefore, be sustained.

The aggravating circumstance of evident premeditation has not likewise been proven beyond
reasonable doubt. The mere fact that accused-appellant killed Bayona does not necessarily prove
in itself that the former hatched a plan to kill the latter. As there was no direct evidence of
the planning or preparation, the court's conclusion may not be endorsed, since it is not enough
that premeditation be suspected or surmised, but the criminal intent must be evidenced by
notorious outward acts evincing the determination to commit the crime. 10
Much less is there a
showing of opportunity for reflection and the persistence in the criminal intent that characterize
the aggravating circumstance of evident premeditation. 11
The court a quo therefore erred in
appreciating the said aggravating circumstance against accused-appellant. The Solicitor General
likewise concedes this finding. 12

As regards the plea of self-defense under Article 11, paragraph 1, of the Revised Penal Code, the
rule is that the same must be proved by clear and convincing evidence. 13
The three concurring
requisites should be present, namely, (a) unlawful aggression on the part of the victim; (b)
reasonable necessity of the means employed to repel the aggression; and (c) lack of sufficient
provocation on the part of the accused. 14

We find no proof of unlawful aggression, on the part of the victim. He was seated and unarmed.
This Court finds it hard to believe that he suddenly stood up with hands at his waist, which
allegedly led accused-appellant to think that the former would draw a gun. The victim, fully
aware that he was not armed, and knowing that his adversary carried a carbine, would not bluff
at so great a risk. We find it still harder to believe that the victim arose and approached or
rushed at accused-appellant, and suddenly held the barrel of the latter's carbine without first
being shot at, for the reasons that (a) a table obstructed his way; 15
(b) accused-appellant was
at least 2 ½ yards away from the victim, which distance could not have been easily and quickly
16

traversed from where the alleged aggressor was seated, considering the obstruction; and (c)
according to his own version, accused-appellant already warned that he would shot if the victim
approached him. It would have been foolhardy and suicidal for the victim to act in the manner
that accused-appellant would like this Court to believe, knowing that the accused-appellant was
poised to shoot if the victim should make a move to approach him, and this holds likewise of
the victim's companions, who were not themselves armed. Yet, accused-appellant would like Us
to believe that he shot the victim only after the latter held the barrel of the gun and only
after he had first stepped backward. The statement of Daniel Brown, Jr., 17
that the victim fell
from his seat to the cement floor like "a burning candle", belies further the claim of accused-
appellant that the deceased was shot only after he approached accused-appellant. Under the
circumstances, accused-appellant's plea of self-defense can not be sustained, since he was himself
the aggressor.

We are convinced that the guilt of accused-appellant has been proven beyond reasonable doubt.
However, the death penalty should be reduced in the absence of the aggravating circumstances of
abuse of public position and evident pre-meditation which were erroneously found by the court a
quo.

Under Article 248 of the Revised Penal Code, 18

the penalty for murder is reclusion temporal in
its maximum period to death. There being only one mitigating circumstance, that of voluntary
surrender, and no aggravating circumstance to offset the same, the imposable penalty is the
minimum pursuant to Article 64, paragraph 2, of the same Code, which is the maximum period
of reclusion temporal under Article 248, supra. The Indeterminate Sentence Law (Act 4103, as
amended by Act 4225) applies in view of the nature of the penalty. Under this law, the
judgment sentencing the accused to a prison term provides for a minimum within the range of
the penalty next lower in degree to be fixed in any of its periods in the discretion of the
court. 19
Under Article 61, paragraph 3, of the Revised Penal Code when the penalty prescribed
for the crime is composed of one or two indivisible penalties and the maximum period of another
divisible penalty, as in this case, the penalty next lower in degree shall be composed of the
medium and minimum periods of the proper divisible penalty and the maximum of that
immediately following in said respective scale. The penalty next lower in degree in the instant
case therefore ranges from the maximum of prision mayor to the medium degree of reclusion
temporal.

FOR THE FOREGOING REASONS, the decision appealed from is accordingly modified, sentencing
accused-appellant to suffer an imprisonment of 14 years, 8 months and 1 day of reclusion
temporal as minimum to 20 years of reclusion temporal as maximum. Said decision is affirmed in
all other respects. Costs against appellant.

G.R. No. L-68699 September 22, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
HERMOGENES MAGDUEÑO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Donato T. Faylona for accused-appellant.

PER CURIAM:

Before us for automatic review is the decision of the Regional Trial Court of Palawan and Puerto
Princesa City finding accused-appellant Hermogenes Magdueño guilty beyond reasonable doubt of
the crime of Murder qualified by treachery and evident premeditation and aggravated by price or
reward and by the crime being committed in contempt of/or with insult to public authority. The
court sentenced Magdueno to suffer the penalty of DEATH with all the accessory penalties
provided by law and to pay the costs; and to indemnify the heirs of the victim, Fernando M.
Dilig in the sum of P130,000.00 as actual damages and P20,000.00 as moral damages.

The amended information charged Hermogenes Magdueno, Apolinario Sison, Teodorico Ramirez,
Alejandro Guevarra, Alfredo Guevarra, and Edgardo Casabay with having committed the crime of
murder as follows:

That on or about the 15th day of October, 1980, and for sometime prior and
subsequent thereto, in the City of Puerto Princesa, Philippines and in Aborlan,
Province of Palawan and within the jurisdiction of this Honorable Court, the said
accused, conspiring and confederating together and mutually helping one another,
did then and there wilfully, unlawfully and feloniously have in their possession,
custody and control a firearm, to wit: one (1) 9MM automatic pistol, without
having secured the necessary license and/or permit to possess the same from the
proper authorities; that at the aforementioned time and place while the said
accused were in possession of the afore-described firearm, conspiring and
confederating together and mutually helping one another, with treachery and
evident premeditation, with intent to kill and while armed with said firearm, did
then and there wilfully, unlawfully and feloniously attack, assault and shoot one
FERNANDO M. DILIG, City Fiscal of Puerto Princesa City, thereby inflicting upon
the latter mortal wounds which were the direct and immediate cause of his
death, to the damage and prejudice of his death, (sic) to the damage and
prejudice of his heirs in the amount of TWO HUNDRED FIFTY THOUSAND
(P250,000.00) PESOS, Philippine Currency.

CONTRARY TO LAW and committed with the aggravating circumstance of

treachery, evident premeditation that the crime was committed in consideration
of a price, reward or promise; and that the crime was committed in contempt of
or with insult to public authorities.

The facts established by the prosecution and accepted by the lower court as basis for the
decision are summarized as follows:

On October 15, 1980, a few minutes past 8:00 o'clock in the morning, as soon
as the late Fiscal Fernando M. Dilig had placed himself at the driver's seat inside
his jeep parked near his house at the corner Roxas and D. Mendoza Streets,
Puerto Princesa City, all of a sudden, two successive gunshots burst into the air,
as the gunman coming from his left side aimed and poured said shots into his
body, inflicting two fatal wounds (Exhibit N) that instantaneously caused his
death, The autopsy report of Dr. Rufino P. Ynzon, Puerto Princesa City Health
Officer, described the wounds as follows:

1. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by contusion

collar, 0.3 cm. in width almost evenly distributed around the gunshot wound,
located at the lateral aspect, neck, left, lower portion, directed medially, slightly
anteriorly, and upwards penetrating the subcutaneous tissues and muscles,
involving the left lateral portion of the esophagus, then the right lateral portion
of the thyroid bone, the right common Carotid Artery, the right jugular vein, and
piercing the sterno-cleido Mastoid Muscle, then making a wound (exit), 1.3 cm.
 located at the lateral aspect, neck, right, about 1 1/2 inches below the angle of
the mandible.

2. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by Contusion

Collar, 0.3 cm. in width almost evenly distributed around the gunshot wound,
located at the lumbar region, left about 2 inches posteriorly from the Mid-
axillary line directed medially, slight anteriorly and slightly upwards penetrating
the sub-cutaneous tissues and muscles, then to the abdominal cavity and involving
the upper portion of the descending colon, and the two loops of small intestines,
then piercing the right abdominal muscles, making a wound, (exit), 1.5 cm.
located at the lumbar region, right, about 1 1/2 inches anterior to the mid-
axillary line, right.

Three witnesses positively identified the assailant as accused Hermogenes

Magdueño: (1) Elena Adion Lim, while sitted (sic) at the gate of her fence,
about 20 to 30 meters away from the house of Fiscal Dilig, saw the gunman
coming from where she heard two successive shots when he passed by her house,
bringing a short gun in his right hand and a clutch bag while hurriedly proceeding
towards Liwanag Street. On October 30, 1980, she identified accused Magdueno
as the man she saw that early morning of October 15, 1980; (2) Ernesto Mari Y
Gonzales, a security guard of the Malaria Eradication Service, this City, while on
board a tricycle, passing in front of the house of Fiscal Dilig, on his way home,
likewise heard the two gunshots coming from the direction of Fiscal Dilig's house,
prompting him to order the driver to stop. He described the gunman as wearing a
white polo shirt, blue pants and a hat, still holding the gun pointed at Fiscal
Dilig. When the gunman turned to his left side, Mari saw a scar on his left
temple below his left eyebrow. The man was still holding the gun in his right
hand while walking in a limping manner towards Mendoza Street. On the witness
chamber, he positively identified accused Hermogenes Magdueno as the gunman;
(3) Cynthia Canto a taxi dancer, residing at Jose Abad Santos, this City, while
in front of the store of Aling Charing near the house of Fiscal Dilig, waiting for a
tricycle, saw the gunman standing by for a quite time, then went nearer Fiscal
Dilig who was then sitted (sic) on the driver's seat of his jeep and fired two
successive shots to the latter, exiting towards Mendoza Street. She could not be
mistaken that accused Hermogenes Magdueno was the gunman and when she came
face to face with him at the invitation of the police in Plaridel, Aborlan,
Palawan, she readily Identified Magdueño as the killer.

Magdueño also executed an extra-judicial confession wherein he admitted that he killed Fiscal Dilig
for a price or reward and implicated Leonardo Senas and Mauricio de Leon to the commission of
the crime. However, both Senas and de Leon were later dropped from the amended information
for lack of a prima facie case against them.

All the other accused were acquitted for insufficiency of evidence.

Gloria S. Dilig, the widow of the victim was presented as witness to prove the civil aspects of
the case. She testified on the actual damages the family incurred and the moral damages she
suffered as a result of the death of Fiscal Dilig.
The dispositive portion of the trial court's decision states:

WHEREFORE, judgment is hereby rendered finding:

1) Accused Hermogenes Magdueno guilty beyond reasonable doubt of the crime of

murder qualified by treachery and evident premeditation and aggravated by price
or reward and that the crime was committed in contempt of/or with insult of
public authority, and hereby sentences him to suffer the SUPREME PENALTY OF
DEATH, with all the accessory penalties provided for by law, and to pay the
costs. He is likewise ordered to indemnify the heirs of the late Fernando M. Dilig
in the sum of P130,000.00, as actual damages and P20,000.00, as moral
damages.

2) Accused Alejandro Guevarra, Teodorico Ramirez, Jr., Edgardo Caabay,

Apolinario Sison and Alfredo Guevarra, not guilty of the crime of murder and
hereby acquits them of the charge against them. The bailbond posted for the
provisional liberty of accused Alejandro Guevarra, Teodorico Ramirez, Jr., Edgardo
Caabay and Alfredo Guevarra is hereby ordered cancelled and the immediate release
of accused Apolinario Sison is likewise ordered unless held for any other cause.

The appellant assigns the following errors allegedly committed by the lower court:

I THE COURT A QUO ERRED IN CONVICTING THE ACCUSED FOR MURDER.

II THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE ACCUSED'S

EXTRA-JUDICIAL CONFESSION.

We are convinced from the records that the appellant was the assailant of the late Fiscal
Fernando Dilig. The lower court did not err as alleged.

The appellant was a stranger in the town and was not known by the three eyewitnesses before
the incident. However, he was readily and positively Identified by the three eyewitnesses upon
confrontation. They could not have mistaken the appellant's Identity because they had a clear
view of him at the time and the incident happened in broad daylight. Any doubt of his Identity
is erased by the testimony of Ernesto Mari Gonzales, one of the eyewitnesses, to the effect
that the man he saw pointing a gun to the late Fiscal Dilig had a scar on his left temple below
his left eyebrow. The appellant, as observed by the lower court, has a scar below his left eye
and above the left eye at the eyebrow in the shape of a letter "J" and at the end of the left
eye somewhat shaped like the letter "V", perpendicular to the eyebrow.

The defense failed to show any motive on the part of these eyewitnesses to falsely accuse the
appellant as having committed the crime. The appellant's accusation that Cynthia Canto, one of
the eyewitnesses testified against him "to claim a reward" is not supported by any evidence on
record.

In the light of the positive identification of the appellant as the perpetrator of the crime, his
defense of alibi necessarily falls. His assertion that on the day of the incident, he was at the
house of Leonardo Senas in Plaridel, Aborlan, Palawan deserves no credit. The appellant has not
shown that it was impossible for him to have been at the place of the incident at the time the
crime was committed. Moreover, as the lower court observed a bus ride from Aborlan, Palawan,
would take only a little more than two hours to the city.

Treachery in the commission of the crime is clearly established by the record.

The appellant fired two successive shots at the defenseless Fiscal Dilig while the latter was still
seated in his jeep, hitting him at the neck and lumbar region. According to Dr. Rufino P. Ynzon,
who performed the autopsy, on the victim; both wounds were fatal and that "death will
definitely occur." Immediately after the shooting, the appellant fled still holding his firearm.

The manner of the execution was such that the appellant deliberately and consciously adopted
means and ways of committing the crime and insured its execution without risk to himself arising
from any defense Fiscal Dilig might make. The two conditions necessary for treachery to exist are
present. (People v. Macariola, 120 SCRA 92; People v. Rhoda, 122 SCRA 909; People v.
Mahusay, 138 SCRA 452; and People v. Radomes, 141 SCRA 548).

The fact that the appellant called out, "Fiscal" before shooting the victim does not negate the
presence of treachery in the commission of the crime. Since the appellant was a hired killer, he
wanted to insure that he was shooting the correct person. When Dilig turned his face to find
out who was calling him, the appellant fired immediately rendering no opportunity for Dilig to
defend himself.

The attendant circumstance of treachery qualifies the crime to murder. The first assigned error
is without merit.

The second assignment of error questions the trial court's finding that the extra-judicial
confession was admissible.

The lower court quoted Section 20, Article IV of the Bill of Rights and took pains to explain
why there was compliance with its mandate. The court commented on the. imbalance present
during custodial interrogations, the strange and unfamiliar surroundings where seasoned and well-
trained investigators do their work, and then rejected the appellant's allegations that it was
extracted through violence and torture. The trial court stated:

But a cursory evaluation of the evidence shows that accused Magdueno was
properly informed of his constitutional rights to remain silent and to counsel and
that any statement he might make could be used against him He was allowed to
communicate with, and was even given, a lawyer in the person of Atty. Clarito A.
Demaala, Jr. of the CLAO in this City. As certified to by Atty. Demaala, Jr., he
assisted and was present when the accused was placed under custodial
investigation. Even before it started, Atty. Demaala interviewed the accused and
informed him of his constitutional rights. NBI Officer-in- Charge Celso A. Castillo,
affirmed this particular fact. He was allowed to converse with his counsel in his
cell and the statement thus obtained from him, signed and subscribed by him as
true, whether inculpatory or exculpatory, in whole and in part, shall be, as it is
hereby, considered admissible in evidence. (Morales, et al: v. Ponce Enrile, et al.
L-61016; Moncupa, Jr. v. Ponce Enrile, et al. L-61107, April 26, 1983.) It is
presumed voluntary and no contrary evidence was shown. (People v. Dorado, L-
23464, 36 SCRA 452). There is spontaneity and voluntariness in his extra-
judicial confession which contains details that cannot be furnished by the
 investigators on how the killing was planned, the reward to be received and the
scenario of the killing (People v. Opiniano, 22 SCRA 177). Furthermore, it was
corroborated by other evidence which recites the true sequence of events. (People
v. Pontanosal, 20 SCRA 249).

With the admission of, and conformably to what the accused Hermogenes
Magdueno alleged in, his extra-judicial confession, the court finds that accused
Magdueno was hired by a 'mysterious mastermind' with whose representative he
agreed to kill Fiscal Dilig for a fee of P80,000.00, of which he will receive a
clean bill of P 30,000.00. Sometime during the last week of September, 1980,
at his residence in Divisoria, Metro Manila, he agreed to the proposition. The
representative of the mastermind,' Leonardo Senas, gave him the advance
payment of P5,000.00, with the balance of P25,000.00 to be paid after he
accomplished the mission. As to the gun he used, it was a 9mm. automatic
revolver. This confirms the finding of the NBI. ...

The records show that the CLAO lawyer, Atty. Clarito Demaala, entered his appearance as
counsel for the accused during the interrogation and was present from the start of the
investigation until it was finished.

The evidence showing that the appellant was a contract or hired killer especially contacted in
Manila to do a job in Puerto Princesa is strengthened by testimony.

Magdueño himself testified that he was formerly an inmate of Muntinglupa who was later
transferred to Sta. Lucia Sub-Colony and released in 1973. He stated that after his release, he
lived with relatives in Divisoria and worked with an aunt as sidewalk vendor. He explained his
presence in Palawan on the day of the killing by claiming that sometime in 1979 Leonardo Senas
accidentally passed by their place in Tabora and suggested that the appellant bring assorted
merchandize to Aborlan, Palawan where Senas resides. He, therefore, left for Palawan on board
the M/V Leon on September 28, 1980 (or shortly before the killing) and visited Mauricio de
Leon at Quito, Puerto Princesa, saw head-nurse Mrs. Fernandez at Sta. Lucia, spent a night
with a Mr. Obid at the Inagawan Sub-Colony and proceeded to Aborlan, Palawan. He claims that
at the time of the shooting, he was in the house of Senas in Aborlan and learned only from the
radio about the killing of Fiscal Dilig.

One of the prosecution witnesses, Andres Factors, testified that he was formerly an inmate in
Muntinglupa since October 26, 1955 and that while serving a sentence for triple death penalty,
he met Magdueno, a leader of the Sputnik Gang, also on death row. Magdueño was nicknamed
"Mande" and served as an attendant in the prison hospital Factors stated that Magdueño was
known as a TIRADOR or killer while in prison He further testified that while he was in Sta.
Lucia Sub-Colony in 1980, he saw Magdueño on October 12 or 13 at the gate of Palawan
Apitong. The reason given by the appellant for his being there was that he was in the business
of bangus fry.

There is plenty of other testimony about the participation of the appellant and the other
accused and the defenses they presented. The trial court summarized in its decision the
testimonies of sixteen (16) prosecution witnesses and twenty-one (21) witnesses for the
defense.
We have carefully examined the records and considering the testimony of the three eyewitnesses
to the shooting, their positive and categorical Identification of the appellant as the assailant,
the corroborative evidence on the circumstances of the killing, and the more than coincidental
presence of Magdueño in Palawan when he should have been in Manila, we see no error in the
lower court's finding that the appellant committed the crime of murder qualified by treachery
and evident premeditation and aggravated by price and reward. Magdueño, in effect, also
admitted that he was a recidivist at the time of his trial. However, recidivism was not alleged in
the information and makes no difference in the determination of the penalty in this case.

However, the aggravating circumstance of commission of a crime with insult to public authority
does not seem to be borne by the records. For this aggravating circumstance to be considered it
must not only be shown that the crime was not committed in the presence of the public
authority but also that the crime was not committed against the public authority himself. (U.S.
v. Rodriguez, 19 Phil. 150; People v. Rizal, 103 SCRA 282). In the instant case Fiscal Dilig, the
public authority involved in the crime, was the victim. Hence, the lower court, erred in including
commission of the crime with insult to public authority as an aggravating circumstance.

Considering the presence of an aggravating circumstance and the absence of any mitigating
circumstance attending the offense, the lower court imposed the proper penalty on the
appellant. The crime in this case is a particularly heinous one. The appellant is shown by the
records as a heartless contract killer. Upon being paid for a job, he had no compunctions about
traveling all the way to Palawan from Manila, stalking and liquidating an unwary victim whose
only fault was to perform his duties faithfully.

WHEREFORE, the lower court's judgment is hereby AFFIRMED.

SO ORDERED.

G.R. No. 126124 January 20, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ZALDY P. PADILLA, accused-appellant.

MENDOZA, J.:

For review in this case is a decision, dated May 8, 1997, of the Regional Trial Court, Branch
XLV, at Urdaneta City, Pangasinan, finding accused-appellant Zaldy P. Padilla guilty of rape and
imposing on him the penalty of death. The trial court also ordered accused-appellant Padilla to
indemnify the offended party, Maria Aurora B. Bautista, in the amount of P50,000.00 and to
pay the costs.

The evidence for the prosecution shows that at around 5 o'clock in the afternoon on April 27,
1995, Maria Aurora, a 13-year old retardate, was in the citrus farm owned by a neighbor, Jose
Sagun, when accused-appellant accosted her. The latter, who is married with two children, was
then 26 years old and employed by Sagun as a farmhand. Armed with a scythe and a knife,
accused-appellant forced Maria Aurora to undress and lie down on the grass. As she lay on there,
accused-appellant forced himself on her, saying: "Kantot tayo" ("Let's have sexual intercourse").
Maria Aurora resisted accused-appellant's advances, but she proved to be no match for him.
Accused-appellant succeeded in ravishing her.1âwphi1.nêt

Maria Aurora told her father, Engracio L. Bautista, what happened to her in the evening. She
was taken to the Governor Teofilo Sison Memorial Hospital, where she was examined by Dr.
Luisa F. Cayabyab. Afterwards, the matter was reported to the Pozorrubio Police Station. 1

On May 2, 1995, Engracio filed a complaint 2

in the Municipal Circuit Trial Court, Pozorrubio,
Pangasinan. After a preliminary investigation, the court found probable cause that the crime had
been committed and that accused-appellant was guilty thereof. Accordingly, the case was referred
to the Office of the Provincial Prosecutor, Urdaneta City, Pangasinan which on May 26, 1995
filed an information 3
for rape in the Regional Trial Court, Branch XLV, at Urdaneta City against
accused-appellant, the pertinent portion of which reads:

The undersigned upon previous complaint sworn to by the father of the offended
party accuses ZALDY PADILLA Y PILONGO alias "LABO", of the crime of RAPE,
committed as follows:

That on or about the 27th day of April, 1995 at Barangay

Bobonan East, Municipality of Pozorrubio, Province of Pangasinan
and within the jurisdiction of this Honorable Court, the above-
named accused, by means of force and intimidation, did then and
there wilfully, unlawfully and feloniously have carnal knowledge of
the complainant, Maria Aurora Bautista, a minor of about 13 years
old, against the latter's will.

CONTRARY to Article 335, Revised Penal Code.

Urdaneta, Pangasinan, May 26, 1995.

Upon being arraigned, accused-appellant pleaded not guilty to the charge, whereupon hearings
were held on December 6, 1995, January 23, January 31, February 22, and March 27, 1996.
On May 8, 1996, judgment was rendered finding accused-appellant Zaldy Padilla guilty of rape
and sentencing him to death:

WHEREFORE, the Court finds the accused ZALDY PADILLA Y PILONGO GUILTY
beyond reasonable doubt of the crime of RAPE defined and penalized under
Republic Act No. 7659, the offense having been committed with the attendant
circumstances of use of a deadly weapon, disregard of the respect due to the
offended party on account of her age, and abuse of superior strength; and hereby
sentences him to suffer the supreme penalty of DEATH, to be executed pursuant
to R.A. No. 8177, otherwise known as the Lethal Injection Law, and to pay the
complainant MA. AURORA BAUTISTA in the amount of P50,000.00 as damages,
and to pay the costs.

Hence, this appeal. Accused-appellant raises this lone assignment of error:

 THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE AGAINST THE
ACCUSED-APPELLANT THE TESTIMONY OF THE ALLEGED VICTIM DESPITE
THE FACT THAT THE LATTER IS INCOMPETENT TO TESTIFY DUE TO HER
MENTAL HANDICAP.

Accused-appellant's contention is without merit.

First. The basic test of a witness' qualification is of course whether he can perceive and,
perceiving, can make known his perception to others. 4
Negatively put, Rule 130, §21 of the
Revised Rules of Court provides:

The following persons cannot be witnesses:

(a) Those whose mental condition, at the time of their production

for examination, is such that they are incapable of intelligently
making known their perception to others;

(b) Children whose mental maturity is such as to render them

incapable of perceiving the facts respecting which they are
examined and relating them truthfully.

Hence, a mental retardate is not, by reason of such handicap alone, disqualified from testifying
in court. He or she can be a witness, depending on his or her ability to relate what he or she
knows. If the testimony of a mental retardate is coherent, the same is admissible in
court. 5
Thus, we have in several cases 6
upheld the conviction of the accused based mainly on
statements given in court by the victim who was a mental retardate.

Trial courts, which have the opportunity to observe the facial expressions, gestures, and tone of
voice of a witness while testifying, are competent to determine whether his or her testimony
will be
given credence. 7
In the instant case, the trial court accorded weight to the testimony of Maria
Aurora. Indeed, the complainant's truthfulness is evident in her testimony:

Prosecutor Emiliano M. Matro:

Now, on April 27, 1995, between 4 and 5 o'clock in the

afternoon, can you recall where you were?

A: I was at the calamansi orchard.

Q: Who owns that calamansi orchard?

A: Tiaging.

Q: What were you doing there at that time?

A: I was looking for my scythe.

Q: What happened, did you find your scythe?

A: I was undressed.
Q: Who undressed you?

A: Labo.

Q: Do you know the real name of Labo?

A: Zaldy Padilla.

Q: If Zaldy Padilla alias Labo is now in the courtroom, can you

identify him?

A: That person.

(The witness pointed at a person who, when asked his name,

answered "Zaldy Padilla.")

Q: You mentioned something about a scythe. Were you able to

find it?

A: It was in the possession of Labo.

Q: You said that Zaldy Padilla alias Labo undressed you. What did
you do after that?

A: He pulled me.

Judge Costales:

At this point, the public is hereby directed to go outside. Close

the door. Even the father and mother of the complainant should
go outside.

Q: After Labo pulled you, what did you do, if anything?

A: He brought out a knife and tried to stab me.

x x x x x x x x x

Q: You were undressed at that time?

A: Yes.

Q: After that, what did you do?

A: He told me, "Kantot tayo."

Q: Did he have sexual intercourse with you?

A: Yes.

Q: How did he do that with you?

 A: He made me lie down.

Judge Costales:

How about the knife?

A: I bled.

Q: Where did you bleed?

A: Here. (The witness pointed at her vagina).

Q: What did you feel while Labo was having sexual intercourse with
you?

A: It hurt. It was painful.

Q: How long did Labo had (sic) sexual intercourse with you?

A: For a short time only.

Q: After that, what did he do?

A: Nothing more.

x x x x x x x x x

Q: Will you describe the organ of Labo?

A: It was big. (The witness demonstrated a length of about 4 to

5 inches)

x x x x x x x x x

Q: Did you scream when he inserted his penis?

A: Yes. 8

The complainant's testimony is corroborated by the finding of Dr. Luisa F. Cayabyab, who
examined Maria Aurora in the evening of April 27, 1995. Dr. Cayabyab found fresh lacerations in
her hymen, most probably caused by the entrance of a hardened penis. 9
The relevant portions
of the medical
certificate, 10
dated April 28, 1995, which Dr. Cayabyab issued after examining Maria Aurora
read:

Perineum : no sign of external injury

Hymen : with fresh lacerations at 3 and 9 o'clock positions

Vagina : admits 1 finger

Cervix : close
 Uterus : small

Spermatozoa : negative

Second. During the trial, the prosecution presented evidence tending to show that Maria Aurora
is a mental retardate.11 Significantly, accused-appellant also admitted this point during his direct
examination. 12
It is settled that sexual intercourse with a woman who is a mental retardate
constitutes statutory rape, which does not require proof that the accused used force or
intimidation in having carnal knowledge of the victim for conviction. 13
However, this fact was
not alleged in the information 14
in this case and, therefore, cannot be the basis for conviction.
At any rate, there is adequate evidence to show that the accused-appellant used force and
intimidation in committing the crime of rape in this case.

The defense makes much of Maria Aurora's admission that she did not put up a determined
resistance against accused-appellant. For instance, she answered at one point that she did not
fight back when accused-appellant laid her down on the grass. 15
However, the law does not
impose a burden on the rape victim to prove resistance. 16
The fact that the victim did not
resist the accused by struggling or shouting for help does not negate the use of force and
intimidation. 17
The use of a knife and the threat of harm may be sufficient to intimidate the
victim to obedience. 18

Maria Aurora, a minor, cannot be expected to react under such circumstances like a mature
woman. Because of her immaturity, she can be easily intimidated, subdued, and terrified by a
strong man like accused-appellant Padilla. 19
There can be no doubt that Maria Aurora was forced
by accused-appellant to have sexual intercourse with him, and that she eventually submitted to
him out of fear from the following answers she gave to the trial court:

Q: Why did you not fight Labo?

A: I was afraid, he might maul me.

x x x x x x x x x

Q: Where was the knife or the scythe you were mentioning at

that time?

A: It was in his possession, sir.

Q: He was holding it?

A: Yes.

Q: What hand?

A: Right hand.

Q: Was it a knife or a scythe?

A: Scythe. No, he had no scythe in his possession.

Q: When he was having sexual intercourse with you?

 A: Yes.

Q: However, he had a knife at that time, only he laid it on the

ground when he had sexual intercourse with you.

A: Yes.

Q: And because he had a scythe, you were afraid that he might kill
you if you resist?

A: Yes. 20

There are minor inconsistencies in the testimony of Maria Aurora, such as her confusion whether
it was a knife or a scythe which accused-appellant placed on the grass above her head after he
had forced her to lie down. However, as we have held in a number of cases, such inconsequential
lapses can be expected of a young girl who was raped, in view of the harrowing experience she is
called upon to recall. 21
Such minor inconsistencies, far from detracting from the veracity of her
testimony, in fact tend to bolster it. 22

Third. To rebut the evidence presented against him, accused-appellant claimed that, at the time
of the rape, he was in their hut preparing supper with two other farmhands. 23
One of the
farmhands, Santiago Sagun, corroborated accused-appellant's claim. 24
This claim cannot prevail
over the positive identification of accused-appellant. 25
In the instant case, Maria Aurora pointed
out accused-appellant in open court as the person who had molested her. Furthermore, for the
26

defense of alibi to be given weight, it must be shown that it was impossible for the accused to
have been present at the place where the crime was perpetrated at the time of its
commission. 27
But in this case, the hut where accused-appellant claimed he was in with the two
other farmhands is only a short distance from the scene of the rape. 28
Hence, the trial court
correctly rejected his alibi.

The trial court also correctly found that the rape was committed with the use of a deadly
weapon and, therefore, the imposable penalty is reclusion perpetua to death. 29
However, it
erred in appreciating the aggravating circumstances of disregard of the respect due to the victim
by reason of his or her age and abuse of superior strength. Although disregard of the respect
due to the victim by reason of his or her age can be taken into account where the victim is of
old age as well as of tender age,30 the same can be considered only in cases of crimes against
persons and honor. 31
At the time of the rape on April 27, 1995, rape was classified as a crime
against chastity. R.A. No. 8353 classifying it as a crime against persons took effect only on
October 22, 1997 and cannot therefore be given retroactive effect so as to justify the
consideration of disregard of the respect due to the victim by reason of his or her age. Even if
such aggravating circumstance could be considered in this case, it nonetheless cannot be
appreciated because nothing appears in the record from which it may be presumed that in the
commission of the crime, accused-appellant deliberately intended to offend or insult the age of
the offended party. 32
Nor can the aggravating circumstance of abuse of superior strength be
appreciated as the trial court did, since the consideration of the same requires evidence of the
relative physical conditions of the assailant and the victim, which the prosecution failed to
present. 33
As the penalty for rape when committed with the use of a deadly weapon
is reclusion perpetua to death, the penalty of reclusion perpetua should be imposed in the
absence of any aggravating circumstances.34
It is also to be noted that the trial court ordered accused-appellant to pay the complainant only
the civil liability arising from the offense in the amount of P50,000,00. This is equivalent to
actual or compensatory damages in civil law. However, in addition to such amount the offended
party is entitled to moral damages, which is automatically granted in rape cases without need of
any proof. Currently, moral damages for rape is fixed P50,000.00. 35
Hence, the additional sum
of P50,000.00 should be awarded to Maria Aurora B. Bautista.

WHEREFORE, the decision dated May 8, 1996 of the Regional Trial Court, Branch XLV,
Urdaneta City, Pangasinan is hereby AFFIRMED, with the modification that accused-appellant is
sentenced to reclusion perpetua and is ordered to pay P50,000.00 to Maria Aurora B. Bautista
by way of moral damages in addition to the amount of P50,000.00 which the trial court
ordered accused-appellant to pay as indemnity.1âwphi1.nêt

SO ORDERED.