EN BANC

[G.R. Nos. 136164-65. April 20, 2001.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . EDGAR

LEGASPI y LIBAO , accused-appellant.

DECISION

MELO , J : p

On February 17, 1997, accused-appellant Edgar Legaspi y Libao was charged with
the crimes of rape and robbery in two separate Informations led with Branch 170 of the
Regional Trial Court National Capital Judicial Region stationed in Malabon. The
Informations respectively read as follows:
Criminal Case No. 17640-MN
That on or about the 11th day of February, 1997, in the Municipality of
Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused while armed with a bladed weapon, with lewd
design and by means of force and intimidation, did, then and there, wilfully,
unlawfully and feloniously have sexual intercourse with HONORATA ONG Y
GUEVARRA, against her will and without her consent.

CONTRARY TO LAW.
Criminal Case No. 17641-MN
That on or about the 11th day of February, 1997, in the Municipality of
Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused while armed with bladed weapon, with intent to
gain and by means of force, violation and intimidation, did, then and there,
wilfully, unlawfully and feloniously take, rob and divest cash money in the
amount of P500.00 to the damage and prejudice of the said HONORATA ONG Y
GUEVARRA in the aforementioned amount of P500.00.

CONTRARY TO LAW.

(Rollo, pp. 4-5.)

Since the charges were related, the prosecution's motion that the two cases be
jointly tried was granted. For its part, the defense pointed out that accused-appellant had
been previously treated at the National Center for Mental Health from February 28 to
March 2, 1996. It moved that the arraignment of accused-appellant be deferred pending
determination by the Center as to whether accused-appellant was mentally t to stand the
rigors of trial. This motion was likewise granted.
Accused-appellant was nally arraigned on November 18, 1997, following
submission of the report dated September 1, 1997 of the National Center for Mental
Health stating that accused-appellant could stand trial. Upon his arraignment, accused-
appellant pleaded not guilty and trial thereafter ensued, with the prosecution presenting
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three witnesses, namely, the complainant Honorata Ong, NBI Medico-Legal o cer Dr.
Ronaldo Mendez, and barangay tanod Gerardo Ocampo. The defense, on the other hand,
presented accused-appellant and SPO4 Salvador Ibo.
On November 6, 1998, the trial court rendered a decision, disposing:
WHEREFORE, premises considered, judgment is hereby rendered as
follows:

1. In Criminal Case No. 17640-MN, the Court nds accused Edgar

Legaspi y Libao guilty beyond reasonable doubt of the crime of RAPE, and
considering the presence of the aggravating circumstance of dwelling and
nighttime, hereby sentences him to suffer the penalty of DEATH, and to pay
Honorata Ong the sum of P50,000.00 as moral damages and P30,000.00 as
exemplary damages plus cost of the suit;

2. In Criminal Case No. 17641-MN, the Court nds accused Edgar

Legaspi y Libao guilty beyond reasonable doubt of the crime of ROBBERY and
there being the presence of the aggravating circumstance of dwelling, hereby
sentences him to suffer an indeterminate penalty of six (6) months of arresto
mayor, as minimum, to nine (9) years of prision mayor, as maximum and to pay
Honorata Ong the sum of P500.00 plus cost of suit;

SO ORDERED.

(Rollo, p. 18.)

The supreme penalty of death having been imposed for the rape, the case is now
before this Court on automatic review. As for accused-appellant's conviction for robbery,
accused-appellant did not appeal therefrom, thus, as to that portion of the judgment
against him, the same has become final and executory (Section 3[c], Rule 122).
The facts, as shown by the records, are as follows:
At around 2:00 in the morning of February 11, 1997, complainant Honorata Ong, who
was then sleeping inside her house with her three daughters, was awakened by the sound
of their door opening. She initially thought that it was her husband coming home from
work. When Honorata opened her eyes, however, she saw a man armed with a knife
standing by her feet. More terrifying, the man already had his pants and briefs down on his
knees and he was pointing to her eldest daughter. Alarmed, Honorata told the man not to
touch her daughter. The man poked his knife at her and told her to stand up and then was
made to lie down on the adjacent sofa. Thereafter, the man removed Honorata's panties
and had sex with her. All this time, he had his knife at Honorata's neck. Honorata noticed
that the man reeked of alcohol. After slaking his lust, Honorata's assailant stood up then
asked for money. Since the man still had his knife pointed at her, Honorata could do
nothing but comply. She gave him the only money she had, several bills amounting to
P500.00. DAHEaT

After threatening Honorata and her daughters with death if she reports the incident,
the man left. Honorata, out of fear, could do nothing but close the door. Later that day,
however, Honorata mustered enough courage to narrate her de lement to her sister-in-law
and upon describing him, Honorata's sister-in-law exclaimed that she knew a person living
in Manapat Street fitting the description.
That afternoon, Honorata, together with her husband, reported the incident to the
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barangay captain. Thereafter, the captain, along with two tanods patrolled the area and, on
the next day, they managed to nab a person who ts the description given by Honorata of
her assailant. When the suspect was brought to the barangay hall for confrontation, he was
positively identi ed by Honorata as the rapist. This person, later identi ed as accused-
appellant Edgar Legaspi y Libao, was thus detained by the police.
The next day, Honorata had herself medically examined at the NBI but no evident
signs of extra-genital physical injuries were found on her body.
On the other hand, all that accused-appellant could interpose as defenses were
denial and alibi, stating that at the time of the alleged incident, he was at his home in
Manapat Street sleeping. Accused-appellant also testi ed that he had been previously
convicted of homicide and Roberto Eugenio, the victim therein, was a resident of the exact
same address where complainant Honorata was living. Accused-appellant hinted at the
possibility that relatives of Roberto Eugenio had conspired with complainant Honorata to
get rid of him.
Incidentally, Rivera Street where the alleged crime occurred is only two streets away
from Manapat. Moreover, aside from Honorata's address, accused-appellant did not
present proof that the relatives of Roberto Eugenio knew complainant Honorata.
Given the above circumstances, the trial court, as earlier mentioned, found accused-
appellant guilty of rape aggravated by dwelling and nighttime, and of robbery aggravated
by dwelling; and thereupon, imposed upon him the supreme penalty of death for the rape,
and an indeterminate penalty of six months to nine years for the robbery.
Accused-appellant's plea for reversal is founded on the arguments that his guilt was
not shown beyond reasonable doubt, and that complainant Honorata's testimony is replete
with inconsistencies. He also insists on his alibi and alleged insanity.
We have carefully reviewed the record and we nd the above contentions devoid of
merit.
In support of his rst, second, and third assigned errors, which accused-appellant
discussed jointly, he points to the discrepancies between Honorata's testimony in open
court and the entry in the police blotter. Accused-appellant harps on the fact that as
described in the blotter, the alleged rapist had an "ala Babalu face" (having an attenuated
chin similar to that of the late comedian Babalu) and a mole on the upper left part of his
lips, while accused-appellant is not "Babalu" and his mole is located not on the left but on
the right side of his face.
That the facial features of accused-appellant differ from the description of
Honorata's assailant as found in the police blotter detracts not a whit from the credibility
of Honorata's testimony. It must be kept in mind that Honorata positively identi ed
accused-appellant as her rapist, not only during the investigation conducted by the police
on the morning of January 15, but also during the trial. At the Malabon Police Station,
Honorata identified accused-appellant thus:
T: Bakit naman po kayo nandito ngayon sa aming himpilan at nagbigay ng
malaya at kusang loob na salaysay?
S: Para po ipagharap ng reklamo ang taong ito (a ant pointing/identifying
person of EDGAR LEGASPI y LIBAO, @ EGAY, 29 years old, single, jobless,
and residing at No. 86 Manapat Street, Barangay Tanong, Malabon, MM
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who is presently inside this room).
T: Ito po bang taong ito ay dati na ninyong kilala?
S: Hindi po.
T: Bakit naman po ninyo gustong ipagharap ng reklamo ang taong ito?
S: Ni rape niya ako.
(Original Record, p. 80.)

During the trial, Honorata likewise identi ed accused-appellant as the person who
sexually violated her. She testi ed that she was able to recognize accused-appellant
because the fluorescent lamp inside her house was lit at the time of the incident.
Q: It was dark. Why were you able to see that person?
A: Because the light inside the house is on, sir.

Q: And you saw that person?

A: Yes, sir.

(tsn, August 18, 1998, p. 3.)

Likewise, we have heretofore held that a man and a woman cannot be physically
closer to each other than during the sexual act (People vs. Fuertes, 296 SCRA 602 [1998]).
We thus have on record Honorata's positive identi cation of accused-appellant as her
assailant. Coupled with the oft-quoted doctrine that entries in police blotters, though
regularly done in the course of the performance of o cial duty, are not conclusive proof of
the truth stated in such entries since they are usually incomplete and inaccurate (People
vs. Padlan, 290 SCRA 388 [1998]), we hold that any discrepancy in the police blotter entry
and the open court testimony of Honorata does not affect her credibility.
It must also be remembered that the entry in the police blotter was made at 6:30 on
the morning of February 12, 1997, only a few hours after the rape and robbery. At that time,
Honorata may not have yet fully recovered from the traumatic ordeal she had gone
through, resulting in an inaccurate entry in the police blotter: Besides, minor lapses are to
be expected when a person is recounting details of a traumatic experience too painful to
recall (People vs. Sta. Ana, 291 SCRA 188 [1998]).
On the other hand, accused-appellant claims that if Honorata were indeed raped on
the sofa of her one-room house, the creaking of the sofa and her moans would have
awakened her three sleeping daughters. He asserts that, strangely, this did not happen.
That Honorata's daughters, aged 3, 6, and 9 years, did not wake up during the
assault is not as incredible as accused-appellant would make it out. The failure of the three
children to wake up during the commission of the rape was probably due to the fact that
they were sound asleep. It is not unusual for children of tender ages to be moved from
their sleeping mats and transferred to another bed without eliciting the least protest from
them, much less, awakening them (People vs. Mustacisa, 159 SCRA 227 [1988]). It is also
to be noted that among poor couples with big families living in small quarters, copulation
does not seem to be a problem despite the presence of other persons around them. One
may also suppose that growing children sleep more soundly than grown-ups and are not
easily awakened by adult exertions and suspirations in the night (People vs. Ignacio, 233
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SCRA 1 [1994]).
As to accused-appellant's submission that the absence of spermatozoa in
Honorata's organ negates the commission of rape, the same rings hollow, the presence or
absence of spermatozoa being immaterial in the prosecution of a rape case, as it is well-
settled that it is penetration, however slight, and not ejaculation, that constitutes rape
(People vs. dela Paz, Jr., 299 SCRA 86 [1998]). That there was penetration is shown by
Honorata's testimony, thus:
Q: When he removed your panty what did he do next?

A: He inserted his organ in mine, sir.

Q: How did you come to know it was his penis that entered your private part?
A: I felt pain, sir.

(tsn, August 18, 1998, p. 5.)

Finally, accused-appellant contends that Honorata lied when she claimed not having
known accused-appellant or his family prior to the incident. Accused-appellant takes this
to be indicative that Honorata plotted with the family of Roberto Eugenio to get rid of him.
As proof of Honorata's alleged prevarication, accused-appellant presented the voter's
registration record of a certain Roberto Eugenio, allegedly accused-appellant's victim in a
homicide case four years prior to the incident in question, indicating that Roberto's
address was 27-D Rivera Street, Tañong, Malabon, Metro Manila, the exact same address
of Honorata.
Accused-appellant has not presented proof that Honorata knew Roberto Eugenio or
his relatives. Neither has he shown that any relative of Eugenio still resides at Honorata's
address, 27-D Rivera Street. Moreover, mere residence at the same address is not proof
that Honorata conspired with the relatives of Roberto Eugenio in an attempt to get rid of
accused-appellant. False testimony or incriminatory machinations must be proved by
evidence more substantial than a voter's registration record.
In his defense, accused-appellant raises the defense of alibi, claiming that he was
asleep at his house at #86 Manapat Street, Tañong, Malabon at the time of the incident.
Accused-appellant's defense of alibi must, however, be looked upon with suspicion, not
only because it is inherently weak and unreliable, but also because it can be easily
fabricated and concocted (People vs. Tulop , 289 SCRA 316 [1998]). For 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 (People vs. Ballesteros, 285 SCRA 438 [1998]).
HITEaS

In the case at bar, accused-appellant has failed to meet both requisites. Aside from
his testimony that he was asleep at the time of the incident, no other witness came
forward to corroborate his version. Moreover, Manapat Street is only two streets away
from Rodriguez Street, the scene of the crime. Accused-appellant even admitted during the
trial that this was only a ve-minute walk from his residence. Counterbalanced against
Honorata's conduct immediately after the incident and her positive identi cation of
accused-appellant as her assailant, accused-appellant's defense of alibi is unavailing. In
the words of the trial court:
Honorata did not know the accused before the incident. She immediately
revealed the fate that befell on her to her sister-in-law. They then reported the
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incident to the barangay and thereafter to the police authorities; executed a sworn
statement; submitted herself to a physical examination by a Medico-Legal O cer
of the NBI; and subscribed and swore to a complaint for rape which would
necessarily result in her exposure to the rigors of public trial. The spontaneity of
these acts clearly demonstrates her sincere desire to bring the accused to justice.
Moreover, no married woman in her right mind would subject herself to public
scrutiny and humiliation in order to perpetuate a falsehood. Neither would she
take the risk of being alienated from her husband and family had she not been
violated and robbed of her money.
(RTC Decision, p. 4-5.)

In accused-appellant's last assignment of error, he claims that the court a quo erred
in not ruling that he is entitled to the exempting circumstance of insanity. For insanity to be
considered, Paragraph 1, Article 12 of the Revised Penal Code requires a complete
deprivation of rationality in committing the act, i.e., that the accused be deprived of reason,
that there be no consciousness of responsibility for his acts, or that there be complete
absence of the power to discern. The defense of insanity or imbecility must be clearly
proved, however, for there is a presumption that acts penalized by law are voluntary
(People vs. Medina, 286 SCRA 44 [1998]).
To prove his insanity, accused-appellant's counsel points to his con nement at the
National Center for Mental Health prior to the incident in question. Likewise, his counsel
claims that when Honorata saw accused-appellant, the latter's pants and briefs were
already down on his knees. He takes this to be an indicium of insanity. DCSTAH

Mere prior con nement does not prove that accused-appellant was deprived of
reason at the time of the incident. Firstly, accused-appellant did not submit proof that he
was adjudged insane by the National Center for Mental Health, only that he had been
con ned therein. Note also that accused-appellant had already been discharged from the
Center prior to the incident. Even if accused-appellant were adjudged insane prior to the
incident, his discharge implies that he was already considered well. In fact, the psychiatric
evaluation report of accused-appellant states that his disorder "runs a chronic course with
periods of exacerbations and remissions." If the insanity is only occasional or intermittent
in nature, the presumption of its continuance does not arise. He who relies on such insanity
proved at another time must prove its existence also at the time of the commission of the
offense (People vs. Bonoan, 64 Phil. 87). This, accused-appellant has failed to do.
Neither does having one's pants and briefs on one's knees indicate deprivation of
reason. If anything else, it shows the lechery and depravity of accused-appellant. Mental
depravity which results not from any disease of the mind, but from a perverted condition
of the moral system, where the person is mentally sane, does not exempt one from
responsibility for crimes committed under its in uence (People vs. Medina, supra). The
Court cannot, therefore, appreciate the defense of insanity brought by accused-appellant.
In sum, we nd that the trial court did not err in nding Honorata's testimony to be
clear, straightforward, and worthy of credence, and consequently, in nding accused-
appellant guilty beyond reasonable doubt of the crime of rape.
We now come to the proper penalty. Under Article 335 (now Article 266-B) of the
Revised Penal Code, "whenever the crime of rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be reclusion perpetua to death."
According to the trial court:
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The rape charge was committed in the victim's dwelling at nighttime.
Dwelling and nighttime are aggravating circumstances in rape (People vs. Padilla
242 SCRA 629). On the other hand, the aggravating circumstance of nighttime
cannot be appreciated in the robbery charge because of (sic) the notion to
commit the crime was conceived only shortly when the rape was committed at
darkness. However, the aggravating circumstance of dwelling is a different story
and should be considered. Dwelling is aggravating in robbery with violence
against or intimidation of person because this class of robbery can be committed
without the necessity of trespassing the sanctity of the offended party's house.
Entrance into the dwelling house of the offended party is not an element of the
offense (People vs. Cabato 160 SCRA 98). Finally, for sexually assaulting a
married woman thereby grievously wronged (sic) the institution of marriage, the
imposition of exemplary damages by way of example to deter others from
committing the crime is just (sic) warranted.
(RTC Decision, pp. 5-6.)

Considering the presence of the aggravating circumstances of nighttime and

dwelling, the trial court imposed the supreme penalty of death on accused-appellant for
the crime of rape.
However, a cursory examination of the Information led against accused-appellant
would show that the aggravating circumstances of nighttime and dwelling are not
speci ed therein. Now, at the time the trial court rendered its decision, the non-allegation
of generic aggravating circumstances in the information was immaterial, since the rule
then prevailing was that generic aggravating circumstances duly proven in the course of
the trial could be taken into account by the trial court in determining the proper imposable
penalty even if such circumstances were not alleged in the information (People vs.
Deberto, 205 SCRA 291 [1992]).
Nonetheless, it is to be noted that the appreciation by the trial court of the
aggravating circumstances of dwelling and nighttime, despite the non-allegation thereof in
the Information, resulted in the imposition of the supreme penalty of death upon accused-
appellant. In People v. Gallego (G.R. No. 130603, August 15, 2000), We had occasion to
rule, thus:
I n People v. Albert (251 SCRA 136 [1995]), we admonished courts to
proceed with more care where the possible punishment is in its severest form —
death — because the execution of such a sentence is irrevocable. Any decision
authorizing the State to take life must be as error-free as possible, hence it is the
bounden duty of the Court to exercise extreme caution in reviewing the parties'
evidence. Safeguards designed to reduce to a minimum, if not eliminate, the grain
of human fault ought not to be ignored in a case involving the imposition of
capital punishment for an erroneous conviction "will leave a lasting stain in our
escutcheon of justice." The accused must thence be afforded every opportunity to
present his defense on an aggravating circumstance that would spell the
difference between life and death in order for the Court to properly "exercise
extreme caution in reviewing the parties' evidence." This, the accused can do only
if he is appraised of the aggravating circumstance raising the penalty imposable
upon him to death. Such aggravating circumstance must be alleged in the
information, otherwise the Court cannot appreciate it. The death sentence being
irrevocable, we cannot allow the decision to take away life to hinge on the
inadvertence or keenness of the accused in predicting what aggravating
circumstance will be appreciated against him.
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In a series of cases under the regime of Rep. Act No. 7659, the Court did
not appreciate the aggravating circumstance of dwelling which would have
increased the imposable penalty to death when such circumstance was not
alleged in the information. In People v. Gaspar, et al. (318 SCRA 649 [1999]), the
Court found that apart from treachery, dwelling also attended the killing of the
victim. Despite this nding and the absence of any mitigating circumstance, the
Court nonetheless did not appreciate dwelling and-imposed the penalty of
reclusion perpetua and not the greater penalty of death. Hence, in the case at bar,
considering that the aggravating circumstance of dwelling was not alleged in the
information, we cannot appreciate it and raise the penalty imposed upon Raul
Gallego from reclusion perpetuato death.

(Emphasis supplied.)

The principle above-enunciated is applicable to the case at bar. Consequently, we

hold that due to their non-allegation in the Information for rape led against accused-
appellant, the aggravating circumstances of nighttime and dwelling cannot be considered
in raising the penalty imposable upon accused-appellant from reclusion perpetua to death.
Parenthetically, the above rule is inapplicable for the crime of robbery committed by
accused-appellant, the same not involving the imposition of the death penalty. For said
crime, what remains applicable is the old rule that generic aggravating circumstances if
duly proven in the course of the trial could be taken into account by the trial court in
determining the proper imposable penalty, even if such circumstances were not alleged in
the Information. Thus, for the crime of robbery, the trial court correctly imposed an
indeterminate penalty of six (6) months of arresto mayor, as minimum, to nine (9) years of
prision mayor, as maximum.
It is to be noted carefully that the rule on generic aggravating circumstances has
now been formalized in the Revised Rules of Criminal Procedure, which took effect on
December 1, 2000. Section 8 of Rule 110 now provide that:
SECTION 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 offense, reference
shall be made to the section or subsection of the statute punishing it.
(Emphasis supplied.)

Likewise, Section 9 of the same Rule provides:

SECTION 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 su cient to enable a
person of common understanding to know what offense is being charged as well
as its qualifying and aggravating circumstances and for the court to pronounce
judgment.
(Emphasis supplied.)

Sections 8 and 9 were discussed by this Court En Banc on June 20, 2000. According
to the minutes of said session:
Justice Puno then invited the attention of the Court to Sections 8 and 9 of
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Rule 110. He explained that the proposal requiring the allegation of qualifying
circumstances in the information re ects the recent decisions of the Court,
especially in heinous crimes. However, the Court concerned itself with the
proposed requirement of likewise alleging aggravating circumstances in the
information. Justice Panganiban raised the question of what to do with an
aggravating circumstance which was not alleged but was proved and not
objected to during trial. Justice Melo answered that it cannot be used to increase
the penalty if it was not alleged even if proved. Justice Puno explained that the
proposal strengthens the right to due process of an accused, part of which is to
be shielded from surprises.

Chief Justice Davide and Justice Panganiban agreed and emphasized that
the presence of aggravating circumstances can make the difference between life
and death where the imposable penalty is reclusion temporal maximum to death
o r reclusion perpetua to death. Justice Panganiban added that the prosecutors
will now be compelled to prepare well-worded information. cHAIES

To make sure that the circumstances that need to be alleged are not
missed out in the information, Justice Mendoza suggested that the Court can
prescribe an updated form in the Rules of Court.
(Emphasis supplied.)

Thus, the Rules now require qualifying as well as aggravating circumstances to be

expressly and speci cally alleged in the Complaint or Information, otherwise the same will
not be considered by the court even if proved during the trial. And this principle is
applicable in all criminal cases, not only in cases were the aggravating circumstance would
increase the penalty to death. With this, the Court gives fair warning to prosecutors that
henceforth, they must prepare well-crafted information that allege the circumstances
qualifying and aggravating the crimes charged, otherwise the same will not be considered
by the court in determining the proper imposable penalty.
The Court further notes that while the trial court awarded the victim the sum of
P50,000.00 as moral damages and P30,000.00 as exemplary damages, it failed to award
civil indemnity to the victim. Prevailing jurisprudence holds that in rape cases, the victim
should be awarded P50,000.00 as civil indemnity and another P50,000.00 as moral
damages for the injury evidently suffered. Moreover, the fact that the victim was raped
inside her house in the presence of her children justi es the trial court's imposition of
exemplary damages.
WHEREFORE, premises considered, the decision under review nding accused-
appellant EDGAR LEGASPI y LIBAO guilty beyond reasonable doubt of the crime of rape in
Criminal Case No. 17640-MN is AFFIRMED with the MODIFICATION that he is sentenced to
suffer the reduced penalty of reclusion perpetua and to pay Honorata Ong the sum of Fifty
Thousand pesos as civil indemnity, another Fifty Thousand Pesos (P50,000.00) as moral
damages and Thirty Thousand Pesos (P30,000.00) as exemplary damages.
No special pronouncement is made as to costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago and Sandoval-Gutierrez, JJ.,
concur.

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Pardo, J., on sick leave.
De Leon, Jr., J., is on leave.

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EN BANC

[G.R. No. L-38297. October 23, 1982.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. MARIO

CAPALAC , defendant-appellant.

The Solicitor General for plaintiff-appellee.

Pio A. Sepulveda for defendant-appellant.

SYNOPSIS

Mario Capalac was convicted of murder for the death of Jimmy Mag-aso
committed with evident premeditation and treachery with the accused taking
advantage of his position as a police o cer and employing means which added
ignominy to the natural effects of his fact. He was sentenced to suffer the death
penalty. The similar charge against his brother, Jesus, who, together with him attacked
the victim after the latter had stabbed their brother Moises, was dismissed as he had
died in the meanwhile.
In praying for the reversal of the judgment, appellant averred that the lower court
erred in appreciating conspiracy, and the qualifying as well as the aggravating
circumstances, all to his disadvantage.
On automatic review, the Supreme Court held that the lower court correctly held
that the crime was one of murder, the qualifying circumstance of treachery being
present. Appellant was assisted by three others; the victim was unable to put up any
defense as his hands were raised in surrender; he was pistol-whipped and lying
prostrate on the ground when he was stabbed; and there was no risk at all to the
aggressors. Conspiracy was attendant to the commission of the crime as indicated by
the manner by which the appellant, his brother and 2 other companions attacked the
victim. Their purpose was to avenge the stabbing of Moises Capalac and this common
purpose impelled them to act in concert to perpetuate their objective. The Supreme
Court however held that the aggravating circumstances of evident premeditation, of
means being employed or circumstances brought about to add ignominy to the natural
effects of the act, and of the crime being committed with the offender taking
advantage of his o cial position were not duly proved. The criminal act, evidently made
in the heat of anger, did not call for a nding that there was evident premeditation.
Appellant and his brother, who were prompted by their desire to avenge their brother,
assaulted the victim relying on the weapons they carried with them cannot be said to
have deliberately employed means to add ignominy to the natural effects of the act as
all they were interested in was that there be retribution for what was done to their
brother. The fact that appellant was a member of the police force did not of itself
justify that the aggravating circumstance of advantage being taken by the offender of
his public position be considered as present. He acted instinctively to aid his brother
who was assaulted and he did not purposely rely on his being a policeman to commit
the act.
The Supreme Court held that the lower court failed to take in to consideration the
existence of the mitigating circumstance of the immediate vindication of a grave
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offense for what was done was an immediate vindication of the stabbing perpetrated
by the victim on appellant's brother.
In view of the foregoing considerations, the crime of murder having been
quali ed by treachery and mitigated by the circumstance of immediate vindication of a
grave offense, the imposition of the death penalty was not warranted and the
imposable penalty should be ten years and one day of prision mayor to seventeen
years, four months and one day of reclusion temporal.
Judgment modified.

SYLLABUS

1. CRIMINAL LAW: CONSPIRACY: PRESENT IN MURDER WHERE ACCUSED

ACTED IN CONCERT IMPELLED BY A COMMON PURPOSE. — The circumstances
indicative of the manner by which the two brothers, as well as their two companions.
who apparently were not apprehended as they were not included in the information,
attacked the hapless victim, would su ce to show conspiracy. They apparently had
one purpose in mind, to avenge the stabbing of Moises Capalac. Such a reaction, as
noted at the outset, is quite understandable. It was not to be expected that they would
even bother to inquire why their brother was stabbed. It was enough that it was done.
They were impelled by a common purpose. They acted in concert. There is su cient
basis for the finding of conspiracy then.
2. ID.; ID.; ESSENTIAL ELEMENTS. — As far back as United States v.
Magcamot (13 Phil. 386), a 1909 decision, Justice Mapa stressed as the essential
element for conspiracy to exist the "concurrence of wills" and "unity to action and
purpose." A recent decision is partial to the phrase, "tacit and spontaneous
coordination," in the assault. (People v. Aleta, L-40694, August 31, 1976, 72 SCRA 542,
per Aquino, J.). A careful analysis of the evidence by the lower court can yield no other
conclusion but that conspiracy was duly proved.
3. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; HOW COMMITTED. —
"There is treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution there of which tend directly and
specially to insure its execution, without risk to himself arising from the defense which
the offended party might make." (Article 14, par. 16 of the Revised Penal Code.)
4. ID.; ID.; ID.; CRIME COMMITTED IS MURDER QUALIFIED BY TREACHERY. —
Mag-aso's situation was hopeless. Any defense he could have put up would be futile
and unavailing. His hands were raised in surrender. That notwithstanding, he was pistol-
whipped. When lying prostate on the ground, he was stabbed. It must be remembered
that, according to the testimonial evidence, there were two other persons assisting the
brothers Capalac. If they were not included in the information. the explanation would
appear to be that they managed to elude capture. There was no risk, therefore, to the
aggressors, no hope for the victim. The trial court committed no error then in
appreciating the circumstances of treachery as being present.
5. ID.; AGGRAVATING CIRCUMSTANCES; PROOF REQUIRED. — As early as
1903, Justice Mapa, in United States v. Alvarez, (3 Phil. 24), made clear that an
aggravating circumstance must be "as fully proven as the crime it self." He added:
"Without clear and evident proof of their presence, the penalty xed by the law for the
punishment of the crime cannot be increased."
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6. ID.; ID.; EVIDENT PREMEDITATION; NOT PRESENT IN MURDER WHEN
CRIME COMMITTED IN THE HEAT OF ANGER. — Where there is no evidence showing
that the defendant had, prior to the moment of its execution, resolved to commit the
crime, nor is there proof that this resolution was the result of meditation, calculation
and persistence. evident premeditation cannot be said so have attended the
commission of the crime. In People v. Mendoza, (100 Phil. 811 [1957]) it was
emphasized that it should not be "premeditation" merely; it is "evident" premeditation. A
recent decision, People v. Anin, (L-39046, June 30, 1975, 64 SCRA 729) ruled that the
perpetration of a criminal act "evidently made in the heat of anger did not call for a
nding that there was evident premeditation. What is required is that the offense was
"the result of cool and serene reflection."
7. ID.; ID.; EMPLOYING MEANS TO ADD IGNOMINY TO THE NATURAL
EFFECTS OF THE ACT; NOT PRESENT IN CASE AT BAR. — What was done by the
brothers of Capalac cannot be categorized as falling within the norm of means being
employed or circumstances being brought about to add ignominy to the natural effects
of the act. It is well to stress that they were prompted by their desire to avenge their
brother. They went after Mag-aso, the victim. They assaulted him, relying on the
weapons they carried with them. Jesus stabbed him and appellant Mario pistol-
whipped him. They did what they felt they had to do to redress a grievance. It cannot be
said, therefore, that they deliberately employed means to add ignominy to the natural
effects of the act. It is quite apparent that all they were interested in was to assure that
there be retribution for what was done to their brother.
8. ID.; ID.; TAKING ADVANTAGE OF OFFICIAL POSITION; NOT PRESENT
WHERE APPELLANT DID NOT PURPOSELY RELY ON HIS BEING A POLICEMAN TO
COMMIT THE ACT. — The mere fact that appellant Mario Capalac is a member of the
police force certainly did not of itself justify the aggravating circumstance of advantage
being taken by the offender of his public position be considered as present. He acted
like a brother, instinctively reacting to what was undoubtedly a vicious assault on his kin
that could cause the death of a loved one. It would be an affront to reason to state that
at a time like that and reacting as he did, he purposely relied on his being a policeman
to commit the act. He pistol-whipped the deceased because he had his pistol with him.
It came in handy and he acted accordingly. (Cf. United States v. Rodriguez, 19 Phil. 150
(1911); People v. Yturriaga, 86 Phil. 534(1950); Peoples v. Ordiales, L-30956,
November 23, 1971,42 SCRA 239.) That he was a policeman of no relevance in
assessing his criminal responsibility.
9. ID.; MITIGATING CIRCUMSTANCE; IMMEDIATE VINDICATION OF A GRAVE
OFFENSE; CONSIDERATION THEREOF IN FAVOR OF THE APPELLANT WHO
IMMEDIATELY SOUGHT RETRIBUTION FOR THE OFFENSE COMMITTED ON HIS
BROTHER. — What was done was an immediate vindication of the stabbing perpetrated
by Mag-aso on appellant's brother Moises. For relatively less serious crimes than this,
this Court has taken into consideration this mitigating circumstance. Certainly it seems
probable that the reason why the lower court failed to do so was the fact that appellant
was a member of the police force. That is not conclusive. What is decisive is the fact
that the brothers Capalac, responsive to what is a traditional norm of conduct, reacted
in a manner which for them was necessary under the circumstances. That was a
ful llment of what family honor and affection require. The aggressor who did them
wrong should not go unpunished. This is not to justify what was done. It offers though
an explanation. At the same time, the rule of law, which frowns on an individual taking
matters into his own hands, requires that every circumstances in favor of an accused
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should not be ignored. That, to render justice according to law. This mitigating
circumstance calls for application.
10. ID.; MURDER; IMPOSABLE PENALTY IN CASE AT BAR. — Where the
murder was quali ed by the circumstance of treachery and there was likewise
considered the mitigating circumstance of immediate vidication of a grave offense, the
penalty imposed on the accused should be "ten years and one day of prision mayor to
seventeen years, four months and one day of reclusion temporal."

DECISION

FERNANDO , C.J : p

It was not unexpected, considering the close family ties so traditional among
Filipinos, that the stabbing, apparently without provocation, of one Moises Capalac by
Jimmy Magaso, would be attended with serious, if not tragic, consequences. It
happened on September 20, 1970 at around 2:00 o'clock in the afternoon, the scene of
the gory incident being a duly licensed cockpit in the City of Iligan. The aggressor,
attempting to escape, was confronted by two brothers of Moises, Jesus Capalac,
originally included in the information but now deceased, and appellant Mario Capalac.
The attempt of Magaso to board a jeep was unsuccessful, he having alighted after two
shots were red in succession. Knowing that he was completely at the mercy of the
two brothers, he raised his hands as a sign of surrender, but they were not to be
appeased. He was pistol-whipped by appellant Mario Capalac, being dealt several
blows on the head and the face. After he had fallen to the ground, Jesus Capalac
stabbed the deceased on the chest three or four times. He was brought to the hospital
where he died, the cause, according to the coroner's report, being "hemorrhagic shock
due to a wound of the heart."
The above facts are not open to dispute, the decision of the lower court and the
briefs for both appellant and appellee being substantially in agreement. After trial duly
held, Mario Capalac was convicted of murder. The lower court found that the crime was
committed with evident premeditation and treachery. The lower court also held that
appellant took advantage of his position as a police o cer and employed means or
brought about circumstances which added ignominy to the natural effects of his act. It
sentenced him to suffer the death penalty. Hence, this case is before this Tribunal for
automatic review. 1
The brief for the appellant prays for the reversal of the judgment and assigns
four errors as having been committed by the lower court. The rst error speaks of the
absence of conspiracy. The second and the third deny the existence of the qualifying as
well as the aggravating circumstances. Lastly, the brief imputes as error of the lower
court what it referred to as "discarding the ante mortem statement of the victim." As
will be shown, there is no basis for reversal. The judgment, however, calls for
modi cation. Murder was committed, the qualifying circumstance of alevosia being
quite evident. The aggravating circumstances, however, were not proved. Moreover, the
lower court did not take into consideration the existence of the mitigating
circumstance of the immediate vindication of a grave offense. Hence, the imposition of
the death penalty was not warranted. cdrep

1. The circumstances indicative of the manner by which the two brothers, as

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well as their two companions, who apparently were not apprehended as they were not
included in the information, attacked the hapless victim, would su ce to show
conspiracy. They apparently had one purpose in mind, to avenge the stabbing of
Moises Capalac. Such a reaction, as noted at the outset, is quite understandable. It was
not to be expected that they would even bother to inquire why their brother was
stabbed. It was enough that it was done. They were impelled by a common purpose.
They acted in concert. There is su cient basis for the nding of conspiracy then. As far
back as United States v. Magcamot, 2 a 1909 decision, Justice Mapa stressed as the
essential element for conspiracy to exist the "concurrence of wills" and "unity of action
and purpose." 3 A recent decision is partial to the phrase, "tacit and spontaneous
coordination," in the assault. 4 A careful analysis of the evidence by the lower court can
yield no other conclusion but that conspiracy was duly proved.
2. From the facts as narrated above, there can be no other conclusion except
that the crime was one of murder, the qualifying circumstance of treachery being
present. The speci c language of the Revised Final Code calls for application: "There is
treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the offended
party might make." 5 Mag-aso's situation was hopeless. Any defense he could have put
up would be futile and unavailing. His hands were raised in surrender. That
notwithstanding, he was pistol-whipped. When lying prostrate on the ground, he was
stabbed. It must be remembered that, according to the testimonial evidence, there
were two other persons assisting the brothers Capalac. If they were not included in the
information, the explanation would appear to be that they managed to elude capture.
There was no risk, therefore, to the aggressors, no hope for the victim. 6 The trial court
committed no error then in appreciating the circumstance of treachery as being
present.
3. The lower court erred, however, in nding the aggravating circumstances
of evident premeditation, of means being employed or circumstances brought about to
add ignominy to the natural effects of the act, and of the crime being committed with
the offender taking advantage of his o cial position as having attended the
commission of the crime. As early as 1903, Justice Mapa, in United States v. Alvares, 7
made clear that an aggravating circumstance must be "as fully proven as the crime
itself." 8 He added: "Without clear and evident proof of their presence, the penalty xed
by the law for the punishment of the crime cannot be increased." 9 Moreover, insofar as
evident premeditation is concerned, there is this relevant excerpt from the same
opinion: "The record contains no evidence showing that the defendant had, prior to the
moment of its execution, resolved to commit the crime, nor is there proof that this
resolution was the result of meditation, calculation and persistence. 1 0 In People v.
Mendova, 1 1 it was emphasized that it should not be "premeditation" merely; it is
"evident" premeditation. 1 2 A recent decision, People v. Anin, 1 3 ruled that the
perpetration of a criminal act "evidently made in the heat of anger" did not call for a
nding that there was evident premeditation. 1 4 What is required is that the offense
was "the result of cool and serene re ection." 1 5 What was done by the brothers of
Capalac cannot be categorized as falling within the norm of means being employed or
circumstances being brought about to add ignominy to the natural effects of the act. It
is well to stress that they were prompted by their desire, to avenge their brother. They
went after Mag-aso, the victim. They assaulted him, relying on the weapons they carried
with them. Jesus stabbed him and appellant Mario pistol-whipped him. They did what
they felt they had to do to redress a grievance. It cannot be said, therefore, that they
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deliberately employed means to add ignominy to the natural effects of the act. It is
quite apparent that all they were interested in was to assure that there be retribution for
what was done to their brother. The mere fact that appellant Mario Capalac is a
member of the police force certainly did not of itself justify that the aggravating
circumstance of advantage being taken by the offender of his public position be
considered as present. He acted like a brother, instinctively reacting to what was
undoubtedly a vicious assault on his kin that could cause the death of a loved one. It
would be an affront to reason to state that at a time like that and reacting as he did, he
purposely relied on his being a policeman to commit the act. He pistol-whipped the
deceased because he had his pistol with him. It came in handy and he acted
accordingly. 1 6 That he was a policeman is of no relevance in assessing his criminal
responsibility.
4. There is another aspect of the decision that calls for correction. The
mitigating circumstance of immediate vindication of a grave offense was not
considered. There is no ambiguity in the language of the Revised Penal Code. That the
act was committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural,
or adopted brothers or sisters, or relatives by a nity within the same degree." 1 7 What
was done was an immediate vindication of the stabbing perpetrated by Magaso on
appellant's brother Moises. For relatively less serious crimes than this, this Court has
taken into consideration this mitigating circumstance. 1 8 Certainly it seems probable
that the reason why the lower court failed to do so was the fact that appellant was a
member of the police force. That is not conclusive. What is decisive is the fact that the
brothers Capalac, responsive to what is a traditional norm of conduct, reacted in a
manner which for them was necessary under the circumstances. That was a ful llment
of what family honor and affection require. The aggressor who did them wrong should
not go unpunished. This is not to justify what was done. It offers though an explanation.
At the same time, the rule of law, which frowns on an individual taking matters into his
own hands, requires that every circumstance in favor of an accused should not be
ignored. That is to render justice according to law. This mitigating circumstance calls
for application. cdll

5. There is no point in discussing the fourth assigned error, namely, that the
ante mortem statement of the victim should have been given weight by the Court. Such
exhibit, 1 9 even if considered a dying declaration, would not call for a reversal. It
consisted of seven questions and answers. The answers to the second and the third
questions referred to what happened to Magaso and who was responsible. His answer
was that he was stabbed, and that it was done by Jesus Capalac. The other questions
dealt with when and where it happened as well as whether or not he was in possession
of his senses, and a rather unnecessary question as to whether he was aggrieved. This
Court, as was the lower court, is aware that the stabbing was by Jesus Capalac, not by
appellant. It does not thereby mean that no criminal liability was incurred by him. In the
light of the foregoing, and following the case of People v. Rosel 2 0 where the murder
was quali ed by the circumstance of treachery and there was likewise considered the
mitigating circumstance of immediate vindication of a grave offense, the penalty
imposed on the accused should be "ten years and one day of prision mayor to
seventeen years, four months and one day of reclusion temporal." 2 1
WHEREFORE, the accused is found guilty of murder, but the decision of the lower
court is hereby modi ed. The accused is sentenced to ten years and one day of prision
mayor minimum to seventeen years, four months and one day of reclusion temporal
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maximum. In all other respects, the lower court decision stands affirmed.
Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, and
Relova JJ., concur.
Makasiar and Vasquez, JJ., I reserve my vote.
Aquino and Gutierrez, JJ., took no part.
De Castro, J., concurs in the result.
Teehankee, J., is on leave.

Footnotes
1. He remained the sole accused, there being an order of the lower court of February 12,
1972 dismissing the charge against his brother, Jesus, who, had died in the meanwhile.
2. 13 Phil. 336.
3. Ibid.
4. People v. Aleta, L-40694, August 31, 1976, 72 SCRA 542, per Aquino, J.
5. Article 14, par. 16 of the Revised Penal Code.

6. Cf. People v. Ong, L-34497, Jan. 30, 1975, 62 SCRA 174; People v. Mabuyo, L-29129, May
8, 1975, 63 SCRA 532; People v. Bautista, L-38624, July 25, 1975, 65 SCRA 460 (where
deceased had no chance to defend himself); People v. Tizon, L-29724, Aug. 29, 1975, 66
SCRA 372; People v. Payao, L-29364, Nov. 21, 1975, 68 SCRA 70; People v. Pajenado, L-
26548, Jan. 30, 1976, 69 SCRA 172; People v. Mojica, L-30742, April 30, 1976, 70 SCRA
502; People v. Palencia, L-38957, April 30, 1976, 71 SCRA 679; People v. Benito, L-32042,
Dec. 17, 1976, 74 SCRA 271; People v. Pascual, L-29893, Feb. 23, 1978, 81 SCRA 548;
People v. Plateros, L-37162, May 30, 1978, 83 SCRA 401; People v. Alegria, L-40392, Aug
18, 1978, 84 SCRA 614; People v. Cuadra, L-27973, Oct. 23, 1978, 85 SCRA 576; People v.
Barbosa, L-39779, Nov. 7, 1978, 86 SCRA 217; People v. Damaso, L-30116, Nov. 20,
1978, 86 SCRA 370.
7. 3 Phil. 24.
8. Ibid, 32.

9. Ibid.
10. Ibid, 31-32.
11. 100 Phil. 811 (1957).
12. Ibid, 818.
13. L-39046, June 30, 1975, 64 SCRA 729. .

14. Ibid, 734.

15. Ibid.
16. Cf. United States v. Rodriguez, 19 Phil. 150 (1911); People v. Yturriaga, 86 Phil. 534
(1950); People v. Ordiales, L-30956, November 23, 1971, 42 SCRA 239.
17. Article 13, par. 5 of the Revised Penal Code.
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18. Cf. United States v. Ampar, 37 Phil. 201 (1917); People v. Diokno, 63 Phil. 601 (1936);
People v. Rosel, 66 Phil. 323 (1938); People v. Domingo, 118 Phil. 1384 (1962) only
alternatively.
19. Exhibit 1.
20. 66 Phil. 323 (1938).
21. Ibid, 326.

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FIRST DIVISION

[G.R. No. 73489. April 25, 1994.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. CIC LORETO

GAPASIN, PC NICANOR SALUDARES, LORENZO SORIANO, alias
"Olit", AMOR SALUDARES, FRANK SALUDARES, BEL SALUDARES, and
NICK SALUDARES , accused, CIC LORETO GAPASIN , accused-appellant.

DECISION

QUIASON , J : p

This is an appeal from the decision of the Regional Trial Court, Branch XVI, Isabela in
Criminal Case No. IV-781, nding appellant guilty beyond reasonable doubt of murder
quali ed by treachery, with the attendance of the mitigating circumstance of voluntary
surrender, and the aggravating circumstances of taking advantage of public position and
evident premeditation. The trial court sentenced him to suffer the penalty of reclusion
perpetua and to pay to the heirs of the late Jerry Calpito, Sr., the sum of P88,596.00 as
actual or compensatory damages; P30,000.00 as death indemnity; P20,000.00 as moral
damages; P30,000.00 as exemplary damages; and the costs. cdrep

I
The information in Criminal Case No. IV-781 reads as follows:
"That on or about the 6th day of October, 1979, at Barangay San Jose,
municipality of Roxas, province of Isabela, Philippines, and within the jurisdiction
of this Honorable Court, the accused CIC LORETO GAPASIN, PC NICANOR
SALUDARES, LORENZO SORIANO alias Olit, AMOR SALUDARES, FRANK
SALUDARES, BEL SALUDARES, and NICK SALUDARES, conspiring and
confederating together and all helping one another, with evident premeditation
and treachery, did then and there willfully, unlawfully, criminally and feloniously,
with intent to kill, attack and shoot Jerry Calpito, with an Armalite ri e SN No.
3267485 Cal. 5.56 duly issued to the accused PC soldier under Memorandum
Receipt dated September 17, 1979 by the 118th PC Company, in icting multiple
gunshot wounds on the body of the latter, step and kick (sic) the victim several
times, causing his instantaneous death due to hemorrhage secondary to gunshot
wounds, to the damage and prejudice of the heirs of the deceased Jerry Calpito in
the amount of P12,000.00, Philippine Currency. prcd

That the crime was committed with the aggravating circumstances of (1)
ignominy, the accused having stepped and kicked the body of the deceased; (2)
abuse of superior strength, and (3) taking advantage of public position, with
respect to the accused CIC Loreto Gapasin who is a PC soldier" (Rollo, pp. 35-36).

A warrant for the arrest of all the accused was issued on December 14, 1980.
However, as of January 10, 1980, only Nicanor Saludares and appellant had been arrested.
On January 17, 1980, the trial court granted the petition for bail of the two accused and
xed the same at P20,000.00 each. Having posted bail, Nicanor Saludares was ordered
released on January 22, 1980. On the other hand, appellant was ordered by the court to
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remain in the custody of Capt. Alexander M. Bellen, commanding o cer of the 118th
Constabulary Company, in Roxas, Isabela.
On February 4, 1980, Frank, Bel and Amor, all surnamed Saludares, were arrested.
Lorenzo Soriano, alias Olit, was arrested the following day. They were all allowed to post
bail bonds in the amount of P20,000.00 each and thereafter they were released from
custody.
On the strength of LOI No. 947, as amended by LOI No. 1011, vesting jurisdiction on
the Military Tribunals of all crimes against persons and property committed with the use
of unlicensed rearms, the provincial scal led a motion praying that Criminal Case No.
IV-781 be transferred to the Military Tribunal and that the bail bonds posted be cancelled.
The prosecution reiterated the motion in a manifestation dated August 21, 1980. cdrep

Accordingly, on August 27, 1980, the trial court ordered: (a) the cancellation of the
bail bonds of the accused; (b) the issuance of the warrants of arrest for all the accused
except for Nicanor Saludares, who was reported to have died; (c) the turn over of appellant
to the Provincial Warden of Isabela as he was not entitled to technical rearrest under
Executive Order No. 106; (d) the turn over to the said Provincial Warden of all the other
accused upon their rearrest; and (e) thereafter, the turn over of the case and the accused
to the Military Tribunal thru the Provincial Commander of the PC/INP, Ilagan, Isabela for
further proceedings.
Pursuant to the endorsement dated September 19, 1980 of Lt. Col. Oscar M.
Florendo, Isabela Provincial Commander, appellant, together with Lorenzo Soriano, Amor
Saludares and Bel Saludares, was rearrested; while Nick and Frank Saludares remained at-
large. On September 29, 1980, the trial court ordered the dismissal of the case against
Nicanor Saludares on account of his death on June 7, 1980.
The accused, however, led a motion for the reconsideration of the Order of August
27, 1980 on the grounds that the case was not covered by LOI No. 947, the crime having
been committed on October 6, 1979 or several days before the issuance of said LOI. The
trial court denied their motion.
By virtue of General Order No. 69 dated January 12, 1981, the records of the case
were transferred back to the trial court from the Military Tribunal. On April 1, 1981, the
prosecution moved for the recommitment of the accused to the provincial jail. The
defense opposed the motion fearing retaliation from a provincial jail guard, who was a
relative of the victim. On May 12, 1981, the trial court denied the motion and set the
arraignment of the accused on June 1, 1981. llcd

On May 18, 1981, Col. Florendo informed the trial court that Bel and Amor Saludares
have escaped from the Rehabilitation Center of the Provincial Command on April 10, 1981.
On May 29, 1981, the provincial scal moved for the reconsideration of the Order of
May 12, 1981, alleging that the accused were not actually detained at the PC Headquarters
and that, except for appellant, the accused have absconded. Hence, to prevent a
miscarriage of justice, the provincial scal prayed for the recommitment of accused
Soriano and appellant at the provincial jail and for the issuance of the warrants of arrest for
Amor, Bel and Frank Saludares.
The trial court granted the motion and issued warrants of arrest. Despite diligent
efforts, however, the other accused were not rearrested and hence, trial proceeded against
accused Soriano and appellant only. On June 1, 1981, they both pleaded not guilty.
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Two years later, on June 1, 1983, the trial court denied appellant's application for
bail but granted that of accused Soriano, whose bail bond was xed at P30,000.00. Being
so persistent, appellant led a second motion for bail, which was denied by the trial court
on June 1, 1984. He filed a third motion to fix bail, which was likewise denied.
Relying on the provisions of Section 4 of P.D. No. 1850, appellant led an urgent
motion praying that he be transferred to the custody of Col. Alfonso M. Mesa, then
Provincial Commander of Isabela. The trial court denied the motion. His motion for
reconsideration having been denied, appellant led a petition for certiorari before the then
Intermediate Appellate Court, alleging that the trial court acted with grave abuse of
discretion in refusing to apply Section 4 of P.D. No. 1850. The appellate court granted the
petition and ordered the immediate transfer of appellant to the custody of his military
commander. LLphil

Meanwhile, accused Frank Saludares was arrested and he entered a plea of not
guilty at his arraignment. He was later allowed to post bail. Since Soriano and Frank
Saludares were both out on bail, the defense opted to present evidence on behalf of
appellant only and to submit the case for decision as soon as possible. Thus, after almost
six years, trial on the case ensued.
II
According to prosecution witness Alberto Carrido, he and Rodrigo Ballad left the
house of Enteng Teppang at about 2:00 P.M. of October 6, 1979 after attending the
"pamisa" for the deceased father of Teppang. Jerry Calpito followed them. While they were
walking along the barangay road, Calpito was shot by appellant with an armalite ri e. When
Calpito fell on the ground, appellant red more shots at him. Thereafter, accused Amor
Saludares planted a .22 caliber revolver on the left hand of Calpito. Upon hearing the shots,
Faustina Calpito ran to succor her fallen husband.
Accused Nicanor Saludares pointed his gun at Faustina while accused Soriano red
his gun upwards. Saludares warned that he would kill any relative of Jerry Calpito who
would come near him. Faustina and the other relatives of the victim scampered away as
the Saludares' group chased them.
The body of Calpito was autopsied by Dr. Bernardo Layugan, who found that the
victim sustained four bullet wounds: (1) on the right lateral side of the arm fracturing the
humerus; (2) on the right lateral side of the thorax between the 7th and 8th ribs with exit
wound at the sternum; (3) on the left side of the thorax, anterior, between the 5th and 6th
ribs; and (4) on the right
fronto-parietal portion of the head "severing the skull and brain tissues" (Exh. "F"). Dr.
Layugan opined that the victim was in a standing position when he was shot by someone
positioned at his right. LexLib

Appellant invoked self-defense. He testi ed that he was issued a mission order on

September 23, 1979 to investigate a report regarding the presence of unidenti ed armed
men in Barrio San Jose, Roxas, Isabela. The following day, he was instructed by Sgt.
Dominador Ignacio to get in touch with Nicanor Saludares who may be able to give him
information on the identities of the persons with unlicensed rearms in the place. When
appellant met Nicanor Saludares on September 29, 1979, he was informed that Jerry
Calpito had an unlicensed firearm. LLphil

On October 5, 1979, Nicanor Saludares went to the P.C. Headquarters in Roxas and
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told appellant that it would be best for him to see Jerry Calpito the following day as a
relative of the latter would be buried. The next day, appellant went to Barangay San Jose,
arriving there at 12 noon. Instead of going to the cemetery, he went to the house of
Nicanor Saludares. From there, they went to the house of Enteng Teppang to attend the
"pamisa." While they were having lunch, Nick Saludares advised appellant against
confronting Calpito because it would create a disturbance at the "pamisa." He also told
appellant that Calpito would surely pass his (Saludares) house on his way home.
Appellant and Nicanor Saludares positioned themselves inside the yard of the latter.
When appellant saw Calpito, he went out of the yard into the barangay road. When Calpito
was about three meters away from him, appellant asked him what was bulging in his waist.
Instead of answering, Calpito took a step backward, drew his rearm from the waist and
red twice at appellant. He missed because appellant dropped to the ground
simultaneously firing his armalite. Cdpr

After fteen minutes, the police arrived and took the body of the victim to the
morgue. Appellant was brought to the P.C. Headquarters in Roxas, where he was
investigated.
III
The appeal hinges primarily on the credibility of the prosecution witnesses.
Appellant claims that the prosecution witnesses, all of them being relatives of the victim,
were naturally biased against him.
This Court has time and again reiterated the principle that it will not interfere with
the ndings of the trial court on the issue of credibility of witnesses and their testimonies
unless the trial court has plainly overlooked undisputed facts of substance and value which
would have altered the result of the case (People v. Matrimonio , 215 SCRA 613 [1992]).
Findings of the trial court are generally accorded great respect by an appellate tribunal for
the latter can only read in cold print the testimonies of the witnesses.
In the trial before the lower court, the eye-witnesses testi ed in their local dialect
and their testimonies had to be translated to English. In the process of converting into
written form the testimonies of the witnesses, not only the ne nuances but a world of
meaning apparent only to the trial judge, may escape the reader of the translated words
(People v. Baslot, 209 SCRA 537 [1992]).
The fact that the prosecution witnesses are relatives of the victim does not
necessarily indicate that they were biased as to impair their credibility. In the absence of
proof of ill motive on the part of witnesses, relationship between them and the victim does
not undermine their credibility. On the contrary, it would be unnatural for persons such as
the relatives of the victim who themselves seek justice to commit the injustice by imputing
the crime on persons other than those who are actually responsible (People v. De Paz , 212
SCRA 56 [1992]). prcd

Appellant's claim of self-defense is belied by the nding of the trial court that the
victim was shot by someone who was standing on his right side. Appellant's version that
he was in front of the victim when the latter red a shot at him and that he retaliated while
dropping on the ground, crumbles in the face of the physical evidence that the victim
sustained two gunshot wounds which entered the right side of his body and a gunshot
wound on the right side of his head. The nature and number of wounds in icted by the
appellant disprove the plea of self-defense (People v. Bigcas, 211 SCRA 631 [1992]).
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Had appellant and Nicanor Saludares, Sr. not intended to harm the victim, they could
have simply apprehended him. Or, having veri ed that Calpito possessed an unlicensed
rearm, appellant could have reported the matter to his superiors so that warrants for
Calpito's arrest and the seizure of his unlicensed firearm could have been obtained.
Appellant contended that the crime committed is homicide. The trial court correctly
ruled that the crime of murder under Article 248 of the Revised Penal Code was indeed
committed. Treachery attended the commission of the crime. The two conditions to
constitute treachery were present in the case at bench, to wit: (a) the employment of
means of execution that gives the person who is attacked no opportunity to defend
himself or to retaliate; and (b) the means of execution were deliberately or consciously
adopted (People v. Narit, 197 SCRA 334 [1991]). cdrep

Appellant deliberately executed the act in such a way that his quarry was unaware
and helpless. This can be gleaned from his act of waiting for the victim behind the hollow-
block fence of Nicanor Saludares and shooting the victim from his right side.
Evident premeditation was indubitably proven by the evidence showing that the
execution of the criminal case was preceded by cool thought and re ection. Appellant's
resolution to carry out the criminal intent during the space of time su cient to arrive at a
clear judgment was shown (People v. Castor, 216 SCRA 410 [1992]). cdphil

In view of the presence of treachery which quali ed the killing as murder, the evident
premeditation should be considered only as a generic aggravating circumstance (People v.
Fabros, 214 SCRA 694 [1992]).
The information alleged three other generic aggravating circumstances: ignominy,
abuse of superior strength and taking advantage of public position. The trial court
correctly ruled out ignominy on the strength of the autopsy conducted by the doctor who
failed to nd any other injuries such as bruises and contusions which may indicate that the
victim was kicked by his assailants. It also correctly held that treachery absorbed abuse of
superior strength (People v. Moral, 132 SCRA 474 [1984]).
The trial court properly appreciated taking advantage of public position as an
aggravating circumstance. Appellant, a member of the Philippine Constabulary, committed
the crime with an armalite which was issued to him when he received the mission order
(People v. Madrid, 88 Phil. 1 [1951]).
Voluntary surrender may be considered in appellant's favor but this is offset by the
aggravating circumstance of taking advantage of public position. Therefore, only the
generic aggravating circumstance of evident premeditation may be appreciated against
appellant. As such, the correct penalty would have been death in accordance with Articles
248 and 64(3) of the Revised Penal Code were it not for the fact that such penalty is
constitutionally abhorrent. Hence, the proper penalty is reclusion perpetua. prcd

The trial court correctly exercised its discretion in imposing moral, compensatory
and exemplary damages (People v. Rabanes , 208 SCRA 768 [1992]; People v. Quilaton ,
205 SCRA 279 [1992]).
WHEREFORE, the decision appealed from is AFFIRMED.
SO ORDERED.
Cruz, Davide, Jr., Bellosillo, Quiason and Kapunan, JJ., concur.
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EN BANC

[G.R. Nos. L-35123-24. July 25, 1984.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. RUDY

TIONGSON , defendant-appellant.

The Solicitor General for plaintiff-appellee.

Felipe L. Gozon for defendant-appellant.

SYLLABUS

1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY; NOT

PRESENT WHERE VICTIM WAS SUFFICIENTLY FOREWARNED OF APPELLANT'S
PRESENCE. — In the instant case, it does not appear how and in what position the
victim was when he was killed so that it cannot be said for certain that the accused had
adopted a mode or means of attack tending directly to insure or facilitate the
commission of the offense without risk to himself arising from the defense or
retaliation which the victim might put up. The Solicitor General also agreed with the
defendant's counsel that treachery is not present in the killing of PC Constable Aurelio
M. Canela since the deceased was actually warned by PC Sgt. Saway not to remain
standing but seek cover because of the known presence of the accused in the vicinity,
but the said deceased disregarded the warning. Considering that PC Constable Canela
had been su ciently forewarned of the presence of the appellant in the vicinity and that
he was not completely deprived of an opportunity to prepare and repel or avoid the
aggression, treachery cannot be appreciated.
2. REMEDIAL LAW; EVIDENCE; AGGRAVATING CIRCUMSTANCES MUST BE
PROVED IN AN EVIDENT AND INCONTESTABLE MANNER. — The circumstances
qualifying or aggravating the act of killing a human being must be proved in an evident
and incontestable manner, mere presumptions or deductions from hypothetical facts
not being su cient to consider them justi ed (U.S. vs. Barbosa, 1 Phil. 741 [1903]; U.S.
vs. Perdon, 4 Phil. 141 [1905]; U.S. vs. Asilo, 4 Phil. 175 [1905]; People vs. Ramiscal, 49
Phil. 104).
3. ID.; ID., JUDICIAL CONFESSION OF GUILT ADMITS ALL THE MATERIAL
FACTS ALLEGED IN THE INFORMATION; EXCEPTION. — It may be true that a judicial
confession of guilt admits all the material facts alleged in the information, including the
aggravating circumstances listed therein, as stated by the trial judge, yet where there
has been a hearing and such circumstance was disproven by the evidence, they should
be disallowed in the judgment (People vs. Boyles, 120 Phil. 92).
4. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; EVIDENT
PREMEDITATION; RULED OUT IN CASE AT BAR. — Evident premeditation must be ruled
out in view of the absence of su cient proof that a plan to kill the victims existed, the
execution of which was preceded by deliberate thought and re ection. Beside, with
respect to the killing of PC Constable Canela, only ten minutes passed from the time
the accused escaped from the Municipal Jail up to the time he shot PC Constable
Canela near the cemetery, so that there was no lapse of time during which he could
have deliberately planned the killing of the said PC Constable and meditated on the
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consequences of his act.
5. ID., ID.; CONTEMPT OF OR WITH INSULT TO THE PUBLIC AUTHORITIES;
NOT ATTENDANT WHERE VICTIM WAS MERE AGENT OF A PERSON IN AUTHORITY. —
The aggravating circumstance that crimes were committed in contempt of or with
insult to the public authorities cannot be appreciated since Pat. Gelera and PC
Constable Canela were the very ones against whom the crime were committed.
Besides, Pat. Gelera and PC Constable Canela are not persons in authority, but merely
agents of a person in authority (People vs. Verzo, 129 Phil. 628).
6. ID.; ID., UNINHABITED PLACE; NOT APPRECIATED IN CASE AT BAR. — The
lower court also found the killing of PC Constable Canela was committed in an
uninhabited place. It has not been shown, however, that the offense was committed in
an isolated place, far from human habitation. In order that the aggravating
circumstance of the commission of a crime in an uninhabited place may be considered,
it is necessary that the place or occurrence be where there are no houses at all, a
considerable distance from the village or town, or where the houses are a great
distance apart (U.S. vs. Salgado, 11 Phil. 56). Here, PC Sgt. Saway merely declared that
the place where PC Constable Canela was shot was about 700 meters away from the
Municipal Building of Bulalacao, Oriental Mindoro, which does not satisfy the
requirement. Besides, the record does not show that the place was intentionally sought
by the accused to facilitate the commission of the crime. The accused was trying to
evade his pursuers, PC Constable Canela among them, and their encounter was purely
by chance. The lower court, therefore, erred in nding that the crime was committed in
an uninhabited place.
7. ID., ID.; ABUSE OF SUPERIOR STRENGTH; RULED OUT IN CASE AT BAR. —
Finally, the aggravating circumstance of abuse of superior strength must also be ruled
out since there is no direct evidence that the accused employed superior strength in the
killing of Pat. Gelera. The Accused was then a detainee and was unarmed while Pat.
Gelera had his service pistol with him. With respect to PC Constable Canela, the
accused was alone against three armed pursuers, namely: PC Sgt. Saway, PC Constable
Canela, and Pat. Nicandro Garcia, and a civilian by the name of Fred Barcelona.

DECISION

CONCEPCION, JR. , J : p

At about 5:30 o'clock in the afternoon of October 26, 1971, the accused Rudy
Tiongson escaped from the Municipal Jail of Bulalacao, Oriental Mindoro, together with
George de la Cruz and Rolando Santiago, where they were detained under the charge of
Attempted Homicide. While in the act of escaping, the said Rudy Tiongson killed Pat.
Zosimo Gelera, a member of the police force of Bulalacao, Oriental Mindoro, who was
guarding the said accused, and PC Constable Aurelio Canela of the PC Detachment
stationed in Bulalacao, Oriental Mindoro, who went in pursuit of them.
By reason thereof, Rudy Tiongson was charged with Murder, in two separate
informations, committed as follows:
1. Crim. Case No. R-DJC-243:
"That on the 26th day of October, 1971, at 6:00 o'clock in the evening, more
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or less, at Rizal, of the Municipality of Bulalacao, Province of Oriental Mindoro,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, RUDY TIONGSON, conspiring and confederating with Rolando Santiago
and George de la Cruz, who are both at large by reason of their forced escape, and
with treachery, wilfully, unlawfully and feloniously waited in ambush, waylaid and
shot one C2C AURELIO M. CANELA, a member of the local Philippine
Constabulary Command, while the latter was in hot pursuit of said accused who
had earlier escaped from custody, thus fatefully resulting to the instantaneous
death of the victim.

That the commission of the offense was quali ed by the circumstance of

treachery, and aggravated by the circumstances of evident premeditation, in
contempt of or with insult to the public authorities, nocturnity, committed in an
uninhabited place and with abuse of superior strength."

2. Crim. Case No. R-DJC-244

"That on the 26th day of October, 1971, at 5:30 o'clock in the afternoon,
more or less, inside of the Municipal Building, of the Municipality of Bulalacao,
Province of Oriental Mindoro, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, RUDY TIONGSON, conspiring and
confederating with George de la Cruz and Rolando Santiago, and under the
pretext that they would answer the call of nature, convinced Police First Class
Patrolman Zosimo Gelera to allow them to go out from their being con ned and
detained in the Municipal Jail of same Municipality by virtue of a previous
offense, and while still hardly out of said jail, ganged up said Zosimo Gelera, took
the latter's service pistol, and with it, with treachery, shot point blank said police
o cer at his right cheek, tragically resulting to the victim's instantaneous death,
and thereafter, made good their escape.

That the offense is quali ed by the circumstance of treachery, and

aggravated by the circumstances of evident premeditation, in contempt of or with
insult to the public authorities and with abuse of superior strength."

Upon arraignment, the said accused, assisted by counsel de oficio, pleaded guilty
to both informations. The trial court, however, did not render judgment outright, but
ordered the prosecution to present its evidence, after which, it sentenced the said
accused to suffer the death penalty in each case, to indemnify the heirs of the victims in
the amount of P12,000.00 and to pay the costs.
The death penalty having been imposed, the cases are now before the Court for
mandatory review.
1. Able counsel appointed for the accused rst claims that the acceptance of
the plea of guilty was precipitate since the trial judge did not ascertain from the
accused that the latter was aware of the consequences of his plea of guilty and that he
fully understood the signi cance and meaning thereof. Wherefore, he prays that the
cases be returned to the court below for proper proceedings.
The norm that should be followed where a plea of guilty is entered by the
defendant, especially in cases where the capital penalty may be imposed, is that the
court should be sure that defendant fully understands the nature of the charges
preferred against him and the character of the punishment provided by law before it is
imposed. For this reason, the Court requires that in every case under a plea of guilty,
where the penalty may be death, the trial court should call witnesses for the purpose of
establishing the guilt and degree of culpability of the defendant and not only to satisfy
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the trial judge but to aid the Supreme Court in determining whether accused really and
truly understood and comprehended the meaning, full signi cance and consequences
of his plea. 1
In the instant case, the trial judge required the taking of testimony as to the
circumstances under which the crime was committed before passing judgment so that
the resulting verdict cannot in any way be branded as deficient.
2. Counsel also contends that the evidence presented by the prosecution
does not warrant, nor support, the nding that the killing of Pat. Zosimo Gelera was
quali ed by treachery since the prosecution failed to present any eyewitness who
directly saw the killing of Pat. Gelera. The Solicitor General agrees with counsel for the
accused.
According to the Revised Penal Code, 2 "there is treachery when the offender
commits any of the crimes against the person, employing means, methods, or forms in
the execution thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might make."
In the instant case, it does not appear how and in what position the victim was
when he was killed so that it cannot be said for certain that the accused had adopted a
mode or means of attack tending directly to insure or facilitate the commission of the
offense without risk to himself arising from the defense or retaliation which the victim
might put up.
Pat. Nicandro Garcia of the Bulalacao police force merely declared that he was in
his house, about 15 meters away from the municipal building when the accused Rudy
Tiongson and his companions escaped from prison, 3 and he did not see the accused
shoot Pat. Gelera. 4
Police Chief Edwardo Borwangga did not also see the accused Rudy Tiongson
shoot Pat. Gelera. He declared that Pat. Gelera was already dead when he arrived at the
municipal building in the afternoon of October 26, 1971. 5
PC Sgt. Teotimo Saway, who led the pursuit of the escaped detainees, declared
that he was in one of the stores in front of the Bulalacao municipal building, about 60
meters away, when he heard two (2) gunshots coming from the direction of the
municipal building, 6 and Pat. Gelera was already dead when he saw him. 7
The circumstances qualifying or aggravating the act of killing a human being
must be proved in an evident and incontestable manner, mere presumptions or
deductions from hypothetical facts not being su cient to consider them justi ed.
Thus, in the case of U.S. vs. Barbosa, 8 the Court said that "since the case does not
furnish any evidence to the effect that Barbosa had formed the deliberate,
premeditated intention to take the life of his wife, and there was no eyewitness as to
the manner in which the deceased was strangled; consequently there is no provision of
law under which we can hold that the crime was committed with treachery, and it must
be borne in mind that the qualifying circumstances of a crime in its commission, in
order to be considered, must be established by competent evidence as well as the
crime to which they relate."
In the case of U.S. vs. Perdon, 9 the Court said that since "neither this witness nor
any other gives any particulars whatever as to the manner in which the aggression was
made, nor how the act which resulted in the death of the deceased began and
developed; and this being the case, it can not be established from mere suppositions,
drawn from circumstances prior to the very moment of the aggression, that the
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accused had employed means tending to insure its success without any danger to his
person, which constitutes treachery (alevosia) as de ned by the Penal Code. The
circumstances specifying an offense or aggravating the penalty thereof must be
proved as conclusively as the act itself, mere suppositions or presumptions being
insu cient to establish their presence according to law. No matter how truthful these
suppositions or presumptions may seem, they must not and can not produce the effect
of aggravating the condition of the defendant."
The Court, in U.S. vs. Asilo, 1 0 also ruled that since it was not established "that the
aggressors employed any means which might have rendered all defenses impossible
for the deceased, inasmuch as no one witnessed the very act of aggression, there is not
su cient ground to establish the conclusion that the attempt which deprived
Anastacio Claridad of his life was made with treachery (alevosia). The treachery can in
no way be presumed, but must be fully proven in order to be appreciated for the effects
of the Penal Code."
In People vs. Ramiscal, 1 1 the Court rejected the claim that treachery was present
because "at the time that the accused in icted the wound upon the deceased there was
not a single eyewitness, for when the witnesses Umali and Chua Chuan entered the
store the wound had already been inflicted."
The Solicitor General also agreed with the defendant's counsel that treachery is
not present in the killing of PC Constable Aurelio M. Canela since the deceased was
actually warned by PC Sgt. Saway not to remain standing but seek cover because of the
known presence of the accused in the vicinity, but that the said deceased disregarded
the warning. The pertinent portion of the testimony of PC Sgt. Saway reads, as follows:
"FISCAL SADICON:

Q Were you alone while you were pursuing those three escaping prisoners?
A No, sir.

Q Who was your companion if there was any?

A Pat. Nicandro Garcia, sir.
Q While yon were pursuing these prisoners what happened next?

A When we were already along the mountain then watching for the
appearance of the three escapees, I saw C2C Aurelio Canela, sir.

Q What does this C2C mean?

A Constable Second Class, sir.

Q After seeing C2C Aurelio Canela approaching while you were waiting for the
three escapees what did you do?
A I signaled him to lie flat and indicated to him where the escapees seem to
be moving, sir.
Q Then what did C2C Canela do upon your signal?

A He continued walking towards me and at the precise moment I signaled

him again to lie down because the escapees-prisoners were there, sir.

Q After that what happened?

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A He did not heed my instruction and because of that I approached him and
tried to hold him instructing him to lie down but on that precise moment
two shots were fired, sir.
Q From what direction those two shots came from?

A From my left approximately 4 meters away from me, sir.

Q What happened after hearing those two shots?

A I saw Canela already hit and shouting 'aruy ', sir." 1 2

Considering that PC Constable Canela had been su ciently forewarned of the

presence of the appellant in the vicinity and that he was not completely deprived of an
opportunity to prepare and repel or avoid the aggression, treachery cannot be
appreciated.
Since treachery, which would qualify the killing of Pat. Gelera and PC Constable
Canela to Murder, was not present, the crimes may only be punished as Homicide. It
may be true that a judicial confession of guilt admits all the material facts alleged in the
information, including the aggravating circumstances listed therein, as stated by the
trial judge, yet where there has been a hearing and such circumstances are disproven by
the evidence, they should be disallowed in the judgment. 1 3
3. We also agree with the parties that the aggravating circumstances of (1)
evident premeditation, (2) in contempt of or with insult to public authorities, (3)
uninhabited place, and (4) abuse of superior strength were not present in the
commission of the crimes.
Evident premeditation must be ruled out in view of the absence of su cient
proof that a plan to kill the victims existed, the execution of which was preceded by
deliberate thought and re ection. Besides, with respect to the killing of PC Constable
Canela, only ten minutes passed from the time the accused escaped from the Municipal
Jail up to the time he shot PC Constable Canela near the cemetery, 1 4 so that there was
no lapse of time during which he could have deliberately planned the killing of the said
PC Constable and meditated on the consequences of his act.
The aggravating circumstance that the crimes were committed in contempt of or
with insult to the public authorities cannot also be appreciated since Pat. Gelera and PC
Constable Canela were the very ones against whom the crime were committed.
Besides, Pat. Gelera and PC Constable Canela are not persons in authority, but merely
agents of a person in authority. 1 5
5. The lower court also found that the killing of PC Constable Canela was
committed in an uninhabited place, It has not been shown, however, that the offense
was committed in an isolated place, far from human habitation, In order that the
aggravating circumstance of the commission of a crime in an uninhabited place may be
considered, it is necessary that the place of occurrence be where there are no houses
at all, a considerable distance from the village or town, or where the houses are a great
distance apart. 1 6 Here, PC Sgt. Saway merely declared that the place where PC
Constable Canela was shot was about 700 meters away from the Municipal Building of
Bulalacao, Oriental Mindoro, 1 7 which does not satisfy the requirement. Besides, the
record does not show that the place was intentionally sought by the accused to
facilitate the commission of the crime. The accused was trying to evade his pursuers,
PC Constable Canela among them, and their encounter was purely by chance. The lower
court, therefore, erred in finding that the crime was committed in an uninhabited place.
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6. Finally, the aggravating circumstance of abuse of superior strength must
also be ruled out since there is no direct evidence that the accused employed superior
strength in the killing of Pat. Gelera. The accused was then a detainee and was unarmed
while Pat. Gelera had his service pistol with him. With respect to PC Constable Canela,
the accused was alone against three armed pursuers, namely: PC Sgt. Saway, PC
Constable Canela, and Pat Nicandro Garcia, and a civilian by the name of Fred
Barcelona. 1 8
As heretofore stated, the accused is guilty only of the crime of Homicide in the
killing of PC Constable Canela and Pat. Gelera. The Solicitor General recommends that
the accused should be sentenced to suffer imprisonment of from 8 years and 1 day to
14 years and 8 months, with the accessory penalties, for each homicide committed by
him. The penalty recommended is within the range provided by law.
WHEREFORE, with the modi cation that the accused Rudy Tiongson should be
sentenced to suffer imprisonment of from eight (8) years and one (1) day of prision
mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal,
as maximum, for each homicide committed by him, the judgment appealed from should
be, as it is hereby, AFFIRMED. The indemnity to be paid to the heirs of the victims is
hereby increased to P30,000.00 in each case.
SO ORDERED.
Aquino, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova,
Gutierrez, Jr., De la Fuente and Cuevas, JJ ., concur.
Fernando, C .J ., concurs in the result.
Teehankee, J ., took no part.
Makasiar, J ., I reserve my vote.

Footnotes

1. People vs. Gonzales, L-34674, Aug. 6, 1979, 92 SCRA 527 and other cases cited therein.
2. Art. 14, No. 16.

3. tsn. of Dec. 20, 1971, p. 11.

4. Id., p. 4.
5. Id., p. 13.
6. tsn. of Dec. 20, 1972, p. 2.

7. Id., p. 4.
8. 1 Phil. 741 (1903).
9. 4 Phil. 141 (1905).
10. 4 Phil. 174 (1905).
11. 49 Phil. 104.

12. tsn. of Jan. 4, 1972, p. 3.

13. People vs. Boyles, 120 Phil. 92.
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14. tsn of Dec. 20, 1971, p. 11.
15. People vs. Verzo, 129 Phil. 628.

16. U.S. vs. Salgado, 11 Phil. 56.

17. tsn. of Jan. 4, 1972, p. 11.
18. tsn. of Dec. 20, 1971, p. 10; tsn of Jan. 4, 1972, p. 4.

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EN BANC

[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.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ALIBI; CANNOT

PREVAIL OVER THE POSITIVE IDENTIFICATION OF ACCUSED. — In the light of the
positive identi cation 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
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.
2. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; TREACHERY; PRESENT IN
THE CASE AT BAR. — Treachery in the commission of the crime is clearly established
by the record. The appellant red two successive shots at the defenseless Fiscal Dilig
while the latter was still seated in his jeep, hitting him at the neck and lumber region.
According to Dr. Ru no P. Yuson, who performed the autopsy on the victim, both
wounds were fatal and that "death will de nitely occur." Immediately after the shooting,
the appellant ed still holding his rearm. The manner of the executive 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).
3. ID.; ID.; ID.; PRESENCE THEREOF QUALIFIES CRIME TO MURDER. — 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 nd out who was calling him, the appellant red 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.
4. ID.; ID.; INSULT TO PUBLIC AUTHORITY; NOT APPLICABLE WHEN
COMMITTED AGAINST PUBLIC AUTHORITY HIMSELF. — 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 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
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including commission of the crime with insult to public authority as an aggravating
circumstance.

DECISION

PER CURIAM : p

Before us for automatic review is the decision of the Regional Trial Court of
Palawan and Puerto Princesa City nding accused-appellant Hermogenes Magdueño
guilty beyond reasonable doubt of the crime of Murder quali ed 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
Magdueño 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 Magdueño, 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 rearm 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 rearm, conspiring and
confederating together and mutually helping one another, with treachery and
evident premeditation, with intent to kill and while armed with said rearm, did
then and there wilfully, unlawfully and feloniously attack, assault and shoot one
FERNANDO M. DILIG, City Fiscal of Puerto Princesa City, thereby in icting 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: prLL

"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, in icting two fatal wounds (Exhibit N) that instantaneously caused his
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death. The autopsy report of Dr. Ru no P. Yuzon, 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 hyroid 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 identi ed 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 identi ed accused
Magdueño 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 Magdueño 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 red two
successive shots to the latter, exiting towards Mendoza Street. She could not be
mistaken that accused Hermogenes Magdueño was the gunman and when she
came face to face with him at the invitation of the police in Plaridel, Aborlan,
Palawan, the 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.

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Gloria S. Dilig, the widow of the victim was presented as witness to prove the civil
aspects of the case. She testi ed on the actual damages the family incurred and the
moral damages she suffered as a result of the death of Fiscal Dilig. cdll

The dispositive portion of the trial court's decision states:

"WHEREFORE, judgment is hereby rendered finding:

"1) Accused Hermogenes Magdueño guilty beyond reasonable doubt of the

crime of murder quali ed 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 Abredo 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 identi ed 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 testi ed against him "to claim a reward" is
not supported by any evidence on record.
In the light of the positive identi cation 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
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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 red 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. Ru no P. Yuzon, who performed the autopsy, on the victim; both wounds were
fatal and that "death will de nitely occur." Immediately after the shooting, the appellant
fled still holding his firearm. cdphil

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 nd out who was calling him, the appellant red immediately
rendering no opportunity for Dilig to defend himself.
The attendant circumstance of treachery quali es the crime to murder. The rst
assigned error is without merit.
The second assignment of error questions the trial court's nding 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 Magdueño
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 certi ed 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 O cer-in-Charge Celso A. Castillo,
a rmed 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. Pontanosa, 20
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SCRA 249).

"With the admission of, and conformably to what the accused Hermogenes
Magdueño alleged in, his extra-judicial confession, the court nds that accused
Magdueño 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 P30,000.00. 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 testi ed that he was formerly an inmate of Muntinlupa 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 Factora, testi ed that he was formerly
an inmate in Muntinlupa since October 26, 1955 and that while serving a sentence for
triple death penalty, he met Magdueño, a leader of the Sputnik Gang, also on death row.
Magdueño was nicknamed "Mande" and served as an attendant in the prison hospital.
Factora stated that Magdueño was known as a TIRADOR or killer while in prison. He
further testi ed 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. cdrep

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 identi cation 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 nding that the
appellant committed the crime of murder quali ed by treachery and evident
premeditation and aggravated by price and reward. Magdueño, in effect, also admitted
that he was a recidivist at the tune of his trial. However, recidivism was not alleged in
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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
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.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay,
Gutierrez, Jr., Cruz, Paras and Feliciano, JJ., concur.

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THIRD DIVISION

[G.R. Nos. 76338-39. February 26, 1990.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. RENATO TAC-AN Y

HIPOS , accused-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Amadeo D. Seno for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; SELF-DEFENSE; REQUISITES. —

Renato claimed that he was acting in self-defense, or at least in incomplete self-defense,
when he shot Francis. For a claim of self-defense to be sustained, the claimant must show
by clear and convincing evidence that the following requisites existed: a) unlawful
aggression on the part of the victim; b) reasonable necessity of the means employed by
the accused to repel the aggression; and c) lack of sufficient provocation on the part of
the accused.
2. ID.; ID.; ID.; ID.; UNLAWFUL AGGRESSION; ALLEGED UTTERANCES IN A CLASSROOM
BY AN UNARMED VICTIM CANNOT BE REGARDED AS AN UNLAWFUL AGGRESSION. —
Testifying in his own behalf, Renato said that a few minutes before the end of Mrs.
Baluma's English III class, Francis had approached him saying: 'Go home, get your firearm
because I will go home to get a gun.' 'You go home get your firearm, if you won't go home
and get a gun, I will go to your place and kill you including your parents, brothers and
sisters.' We note at the outset that there was no evidence before the Court, except
Renato's own testimony, that Francis had uttered the above statements attributed to him
by Renato. Although there had been about twenty-five (25) other students, and the teacher,
in the classroom at the time, no corroborating testimony was offered by the defense. In
the second place, assuming (arguendo merely) that Francis had indeed made those
statements, such utterances cannot be regarded as the unlawful aggression which is the
first and most fundamental requirement of self-defense. Allegedly uttered in a high school
classroom by an obviously unarmed Francis, such statements could not reasonably inspire
the "well grounded and reasonable belief" claimed by Renato that "he was in imminent
danger of death or bodily harm."
3. ID.; ID.; ID.; ID.; IN THE ABSENCE OF UNLAWFUL AGGRESSION THERE IS NO SELF-
DEFENSE, COMPLETE OR INCOMPLETE. — Unlawful aggression refers to an attack that
has actually broken out or materialized or at the very least is clearly imminent: it cannot
consist in oral threats or a merely threatening stance or postured. Further, as pointed out
by the Solicitor General, Francis was obviously without a firearm or other weapon when
Renato returned and burst into Room 15 demanding to know where Francis was and
forthwith firing at him repeatedly, without the slightest regard for the safety of his other
classmates and of the teacher. There being no unlawful aggression, there simply could not
be self-defense whether complete or incomplete, and there is accordingly no need to refer
to the other requirements of lawful self-defense.
4. ID.; P.D. NO. 1866; ENFORCEABILITY OF THE LAW DID NOT LAPSE UPON THE
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TERMINATION OF MARTIAL LAW. — There is nothing in P.D. No. 1866 (which was
promulgated on 29 June 1983) which suggests that it was intended to remain in effect
only for the duration of the martial law imposed upon the country by former President
Marcos. Neither does the statute contain any provision that so prescribes its lapsing into
non-enforceability upon the termination of the state or period of martial law. On the
contrary, P.D. No. 1866 by its own terms purported to "consolidate, codify and integrate"
all prior laws and decrees penalizing illegal possession and manufacture of firearms,
ammunition and explosives in order "to harmonize their provisions," as well as to update
and revise certain provisions and prior statutes "in order to more effectively deter violators
of the law on firearms, ammunitions and explosives."
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST DOUBLE JEOPARDY;
FILING OF CASE FOR UNLAWFUL POSSESSION OF FIREARM DOES NOT BAR FILING OF
CASE FOR MURDER. — It is elementary that the constitutional right against double jeopardy
protects one against a second or later prosecution for the same offense, and that when
the subsequent information charges another and different offense, although arising from
the same act or set of acts, there is no prohibited double jeopardy. In the case at bar, it
appears to us quite clear that the offense charged in Criminal Case No. 4007 is that of
unlawful possession of an unlicensed firearm penalized under a special statute, while the
offense charged in Criminal Case No. 4012 was that of murder punished under the Revised
Penal Code. It would appear self-evident that these two (2) offenses in themselves are
quite different one from the other, such that in principle, the subsequent filing of Criminal
Case No 4012 is not to be regarded as having placed appellant in a prohibited second
jeopardy.
6. ID.; ID.; ID.; ID.; ADDITIONAL ALLEGATIONS IN THE INFORMATION DOES NOT HAVE
THE EFFECT OF CHARGING FOR THE SAME OFFENSE. — We note that the information in
Criminal Case No. 4007 after charging appellant with unlawful possession of an unlicensed
firearm and ammunition, went on to state that said firearm and ammunition had been used
to shoot to death Francis Ernest Escaño III. We note also that the amended information in
Criminal Case No. 4012 after charging appellant with the unlawful killing of Francis Ernest
Escaño III, stated that the killing had been done with the use of an unlicensed firearm. We
believe these additional allegations in the two (2) informations did not have the effect of
charging appellant with having committed the same offense more than once.
7. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; USE OF AN UNLICENSED
FIREARM; NOT PROVIDED IN ARTICLE 14 OF THE REVISED PENAL CODE. — However, in
sentencing Renato to suffer the penalty of death for the crime of murder, the trial court did
take into account as a "special aggravating circumstance" the fact that the killing of
Francis had been done "with the use of an unlicensed firearm." In so doing, we believe and
so hold, the trial court committed error. There is no law which renders the use of an
unlicensed firearm as an aggravating circumstance in homicide or murder. Under an
information charging homicide or murder, the fact that the death weapon was an
unlicensed firearm cannot be used to increase the penalty for the second offense of
homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The
essential point is that the unlicensed character or condition of the instrument used in
destroying human life or committing some other clime, is not included in the inventory of
aggravating circumstances set out in Article 14 of the Revised Penal Code.
8. ID.; P.D. NO. 1866; AUTHORIZES THE INCREASE OF THE IMPOSABLE PENALTY;
UNLAWFUL POSSESSION OF AN UNLICENSED FIREARM OR AMMUNITION IS PUNISHED
UNDER A SPECIAL LAW. — In contrast, under an information for unlawful possession (or
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manufacture, dealing in, acquisition or disposition) of a firearm or ammunition, P.D. No.
1866 authorizes the increase of the imposable penalty for unlawful possession or
manufacture, etc. of the unlicensed firearm where such firearm was used to destroy
human life. Although the circumstance that human life was destroyed with the use of the
unlicensed firearm is not an aggravating circumstance under Article 14 of the Revised
Penal Code, it may still be taken into account to increase the penalty to death (reclusion
perpetua, under the 1987 Constitution) because of the explicit provisions of P.D. No. 1866.
As noted earlier, the unlawful possession of an unlicensed firearm or ammunition is an
offense punished under a special law and not under the Revised Penal Code.
9. ID.; QUALIFYING CIRCUMSTANCE; TREACHERY; CUMULATIVE EFFECT OF
CIRCUMSTANCES SHOW THAT THE ATTACK WAS CARRIED OUT TO DISABLE THE VICTIM
FROM DEFENDING HIMSELF. — The Court also pointed out that Renato must have known
that Francis while inside Room 15 had no means of escape there being only one (1) door
and Room 15 being on the second floor of the building. Renato in effect blocked the only
exit open to Francis as he stood on the teacher's platform closest to the door and fired as
Francis and Ruel sought to dash through the door. Renato's question "where is Francis?"
cannot reasonably be regarded as an effort to warn Francis for he shot at Francis the
instant he sighted the latter, seated and talking to Ruel Ungab. That Renato fired three (3)
shots before hitting Francis with the fourth shot, can only be ascribed to the indifferent
marksmanship of Renato and to the fact that Francis and the other students were
scurrying from one part of the room to the other in an effort to evade the shots fired by
Renato. The cumulative effect of the circumstances underscored by the trial court was that
the attack upon Francis had been carried out in a manner which disabled Francis from
defending himself or retaliating against Renato.
10. ID.; ID.; ID.; ID.; FIRING AGAIN AT THE VICTIM SHOWS CONSCIOUS CHOICE OF
EXECUTION TO ENSURE DEATH OF VICTIM WITHOUT RISK TO ASSAILANT. — Finally, the
circumstance that Renato, having been informed that Francis was still alive, re-entered
Room 15 and fired again at Francis who lay on the floor and bathed with his own blood,
manifested Renato's conscious choice of means of execution which directly and especially
ensured the death of his victim without risk to himself. We are compelled to agree with the
trial court that treachery was here present and that, therefore, the killing of Francis Ernest
Escaño III was murder.
11. ID.; AGGRAVATING CIRCUMSTANCE; EVIDENT PREMEDITATION; REQUISITES. —
The trial court also found the presence of evident premeditation and appreciated the same
as a generic aggravating circumstance. Here, it is the urging of the appellant that the
requisites of evident premeditation had not been sufficiently shown. In order that evident
premeditation may be taken into account, there must be proof of (a) the time when the
offender formed his intent to commit the crime; (b) an action manifestly indicating that the
offender had clung to his determination to commit the crime; and (c) of the passage of a
sufficient interval of time between the determination of the offender to commit the crime
and the actual execution thereof, to allow him to reflect upon the consequences of his act.

12. ID.; ID.; ID.; ID.; NOT APPRECIATED WHERE THERE IS NO EVIDENCE ADEQUATELY
SHOWING WHEN THE INTENTION AND DETERMINATION TO KILL WAS FORMED. — The
defense pointed out that barely fifteen (15) minutes had elapsed from the time Renato left
his English III class and the time he returned with a gun. While there was testimony to the
fact that before that fatal day of 14 December 1984, anger and resentment had welled up
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between Francis and Renato, there was no evidence adequately showing when Renato had
formed the intention and determination to take the life of Francis. Accordingly, we must
discard evident premeditation as an aggravating circumstance.
13. ID.; B.P. BLG. 179; COURT MUST BE WARY AND CRITICAL OF INDIRECT EVIDENCE.
— In the absence of competent medical or other direct evidence of ingestion of a
dangerous drug, courts may be wary and critical of indirect evidence, considering the
severe consequences for the accused of a finding that he had acted while under the
influence of a prohibited drug. The Court considers that the evidence presented on this
point was simply inadequate to support the ruling of the trial court that Renato had shot
and killed Francis while under the influence of a prohibited drug.
14. ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER; FACT THAT
ACCUSED DID NOT CONSTITUTE VOLUNTARY SURRENDER. — Appellant contends that he
had voluntarily surrendered and that the trial court should have considered that mitigating
circumstance in his favor. The trial court did not, and we consider that it correctly refused
to do so. Firstly, Renato surrendered his gun, not himself, by handing over the weapon
through the balustrade of the faculty room. Secondly, he surrendered the gun to his
brother, who was not in any case a person in authority nor an agent of a person in authority.
Thirdly, Renato did not surrender himself: he was arrested by Capt. Lazo. The fact that he
did not resist arrest, did not constitute voluntary surrender. Finally, if it be assumed that
Renato had surrendered himself, such surrender cannot be regarded as voluntary and
spontaneous. Renato was holed up in the faculty room, in effect holding some teachers
and students as hostages. The faculty room was surrounded by Philippine Constabulary
soldiers and there was no escape open to him. He was not entitled to the mitigating
circumstance of voluntary surrender.
15. ID.; AGGRAVATING CIRCUMSTANCE; PERSON IN AUTHORITY; TEACHER OR
PROFESSOR IS NOT TO BE REGARDED AS A "PUBLIC AUTHORITY" WITHIN THE MEANING
OF ARTICLE 14 OF THE REVISED PENAL CODE. — Careful reading of the last paragraph of
Article 152 will show that while a teacher or professor of a public or recognized private
school is deemed to be a "person in authority," such teacher or professor is so deemed
only for purposes of application of Articles 148 (direct assault upon a person in authority),
and 151 (resistance and disobedience to a person in authority or the agents of such
person) of the Revised Penal Code. In marked contrast, the first paragraph of Article 152
does not identify specific articles of the Revised Penal Code for the application of which
any person "directly vested with jurisdiction, etc." is deemed "a person in authority."
Because a penal statute is not to be given a longer reach and broader scope than is called
for by the ordinary meaning of the ordinary words used by such statute, to the
disadvantage of an accused, we do not believe that a teacher or professor of a public or
recognized private school may be regarded as a "public authority" within the meaning of
paragraph 2 of Article 14 of the Revised Penal Code, the provision the trial court applied in
the case at bar.

DECISION

FELICIANO , J : p

Accused Renato Tac-an appeals from the decision of the Regional Trial Court of Tagbilaran
City, convicting him of qualified illegal possession of a firearm and ammunition in Criminal
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Case No. 4007 and of murder in Criminal Case No. 4012 and imposing upon him the
penalty of death in both cases.
On 18 December 1984, appellant was charged with violation of Section 1, paragraph (2), of
Presidential Decree No. 1866, committed as follows:
"That, on or about the 14th day of December, 1984, in the City of Tagbilaran,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, while acting under the influence of drugs and without any license or
permit from the proper authorities, did then and there willfully, unlawfully and
feloniously have in his possession, custody and control an unlicensed firearm, a
SMITH & WESSON Airweight caliber .38 revolver with Serial Number 359323 with
Five (5) spent shells and Five (5) live ammunitions and without any justifiable
cause and with intent to kill, used the said firearm and ammunitions to shoot one
Francis Ernest Escaño III hitting and inflicting upon the latter the following
gunshot wounds or injuries, to wit:
MULTIPLE GUNSHOT WOUNDS — Head & Chest (through and
through);
Head Entrance — 1.4 x 2.2 cm., Left Fronto-Temporal Area; Port
— 1.3 x 0.3 cm.; Right Cheek, 3.5 cm., above the right external meatus;
Chest Entrance — 0.3 x 1 cm. — Right Infrascapular Area at the
level of the 7th Intercostal Rib (Back); Exist - 0.3 cm. dia; above the right
nipple;
Y-shape laceration, check at the right angle of the mouth, Right.
Dimensions: 3 x 1.2 cm. x 1.8'
which gunshot wounds or injuries directly caused his death, to the damage
and prejudice of the Republic of the Philippines.
Acts committed contrary to the provisions of Section 1, paragraph 2 of the
Presidential Decree No. 1866." 1

On 11 January 1985, an amended information 2 for murder was also filed against appellant
reading as follows:
That, on or about the 14th day of December, 1984 in the City of Tagbilaran,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, without any justifiable cause and with intent to kill, evident
premeditation, treachery, while acting under the influence of drugs, with cruelty
and deliberately augmenting the suffering of the victim, did then and there
willfully, unlawfully and feloniously attack, assault and shot one Francis Ernest
Escaño with the use of an unlicensed SMITH & WESSON Airweight caliber .38
revolver with Serial Number 359323 hitting and inflicting upon the latter the
following gunshot wounds or injuries, to wit:
'MULTIPLE GUNSHOT WOUNDS — Head and Chest (Through &
Through);
Head Entrance — 1.4 x 2.2 cm., Left Fronto-temporal Area; Port —
1.3 x 0.3 cm., Right Cheek, 3.5 cm., above the right external meatus;
Chest Entrance — 0.3 x 1 cm. — right Infrascapular Area at the
level of the 7th Inter-Costal Rib (back); exit — 0.3 cm. dia; above the
right nipple.
Y-shape laceration, cheek at the angle of the mouth, Right.
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Dimensions: 3 x 1.2 cm. x 1.8.'
which gunshot wounds or injuries directly caused his death, to the damage
and prejudice of the heirs of the deceased namely: Judge & Mrs. Francisco
Rey H. Escaño in the amount to be proved during the trial of the case.
Acts committed contrary to the provisions of Article 248 of the Revised Penal
Code, in relation to Section 17 of Batas Pambansa Blg. 179, with the qualifying
aggravating circumstances of evident premeditation, treachery and acting under
the influence of dangerous drugs and cruelty.

Appellant entered a plea of not guilty in both cases. The two (2) criminal cases were
consolidated upon motion of the prosecution and tried jointly. On 31 July 1986, the trial
court rendered a decision 3 convicting appellant under both informations. The dispositive
portion of the decision read as follows: cdrep

WHEREFORE, all the foregoing premises considered, decision is hereby rendered

in Criminal Case No. 4007 finding the accused Renato Tac-an y Hipos GUILTY
beyond reasonable doubt of Illegal Possession of Firearms and Ammunitions
qualified with Murder under Section 1, paragraphs 1 and 2 of Presidential Decree
No. 1866 and hereby sentences said Renato Tac-an y Hipos to suffer the penalty
of DEATH. Further, decision is also rendered in Criminal Case No. 4012 finding the
same accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of
Murder under Article 248 of the Revised Penal Code, in relation to Batas
Pambansa Blg. 179 and P.D. 1866. Appreciating the aggravating circumstance of
evident premeditation (treachery used to qualify the crime to murder) and the
special aggravating circumstances of acting while under the influence of
dangerous drugs and with the use of an unlicensed firearm and with insult to a
person in authority and there being no mitigating circumstance to offset them,
and sentences the said Renato Tac-an y Hipos to suffer the penalty of DEATH.
The accused is likewise ordered to indemnify the heirs of the deceased Francis
Ernest Escaño in the amount of THIRTY THOUSAND PESOS (P30,000.00); to pay
actual compensatory damages in the amount of ONE HUNDRED EIGHT
THOUSAND THREE HUNDRED TEN PESOS (P108,310.00); to pay moral damages
to Judge Francisco Escaño, Jr., the sum of ONE HUNDRED THOUSAND PESOS
(P100,000.00) and to Mrs. Lydia Escaño the sum of ONE HUNDRED THOUSAND
PESOS (P100,000.00) for the mental anguish and suffering each experienced
because of the death of Francis Ernest. All such amount shall earn legal interest
from the time this decision shall become final and executory until fully satisfied.
The accused shall also pay the costs.
SO ORDERED."

Immediately after promulgation of the decision, appellant signified his intention to appeal
to this Court, although the same was subject to automatic review by this Court.
In his brief, appellant assigned the following as errors allegedly committed by the trial
court:
"I. The lower court erred in believing the prosecution's version of the case
instead of according full faith and credence to the defendant's version.
II. The trial court erred in not holding that Renato Tac-an was justified in
shooting the deceased.
III. The trial court erred in not holding that in (sic) the least the defendant
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acted in incomplete self-defense in shooting the deceased.

IV. The trial court erred in not holding that P.D. 1866 is inapplicable to the
defendant inasmuch as said decree was enforceable only during the existence of
the Martial Law Regime.
V. The trial court erred in not holding that the defendant was placed twice in
jeopardy for having been prosecuted for violation of P.D. 1866 despite his being
prosecuted for murder in an information which alleges that the accused used an
unlicensed firearm in killing the deceased.
VI. The trial court erred in not adjudging the defendant innocent of murder.

From the record, the facts may be collated and summarized as follows:
Appellant Renato Tac-an, then eighteen (18) years and seven (7) months of age, and the
deceased Francis Ernest Escaño III, fifteen (15) years old, were classmates in the third
year of high school of the Divine Word College in Tagbilaran City. They were close friends,
being not only classmates but also members of the same gang, the Bronx gang. Renato
had been to the house where Francis and his parents lived, on one or two occasions. On
those occasions, Francis' mother noticed that Renato had a handgun with him. Francis was
then advised by his mother to distance himself from Renato. 4
Francis withdrew from the Bronx gang. The relationship between Renato and Francis
turned sour. Sometime in September 1984, Renato and Francis quarrelled with each other,
on which occasion Francis bodily lifted Arnold Romelde from the ground. Arnold was
friend and companion to Renato. The quarrel resulted in Renato and Francis being brought
to the high school principal's office. The strained relationship between the two (2)
erstwhile friends was aggravated in late November 1984 when Francis learned that Renato,
together with other members of the Bronx gang, was looking for him, apparently with the
intention of beating him up. Further deterioration of their relationship occurred sometime
in the first week of December 1984, when graffiti appeared on the wall of the third year
high school classroom and on the armrest of a chair in that classroom, deprecating the
Bronx gang and describing Renato as "bayot" (homosexual). 5 Renato attributed the graffiti
to Francis.
At about 2:00 o'clock in the afternoon of 14 December 1984, Renato entered Room 15 of
the high school building to attend his English III class. Renato placed his scrapbook
prepared for their Mathematics class on his chair, and approached the teacher, Mrs. Liliosa
Baluma, to raise a question. Upon returning to his chair, he found Francis sitting there, on
the scrapbook. Renato was angered by what he saw and promptly kicked the chair on
which Francis was seated. Francis, however, explained that he had not intentionally sat
down on Renato's scrapbook. A fistfight would have ensued but some classmates and two
(2) teachers, Mrs. Baluma and Mr. Damaso Pasilbas, intervened and prevented them from
assaulting each other. After the two (2) had quieted down and apparently shaken hands at
the instance of Mrs. Baluma, the latter resumed her English III class. Francis sat on the last
row to the extreme right of the teacher while Renato was seated on the same last row at
the extreme left of the teacher. While the English III class was still going on, Renato slipped
out of the classroom and went home to get a gun. He was back at the classroom
approximately fifteen (15) minutes later. 6
The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00 p.m. had just
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started in Room 15 when Renato suddenly burst into the room, shut the door and with both
hands raised, holding a revolver, shouted "Where is Francis?" Upon sighting Francis seated
behind and to the right of student Ruel Ungab, Renato fired at Francis, hitting a notebook, a
geometry book and the armrest of Ruel's chair. Francis and Ruel jumped up and with
several of their classmates rushed forward towards the teacher's platform to seek
protection from their teacher. Renato fired a second time, this time hitting the blackboard
in front of the class. Francis and the other students rushed back towards the rear of the
room. Renato walked towards the center of the classroom and fired a third time at Francis,
hitting the concrete wall of the classroom. Francis and a number of his classmates rushed
towards the door, the only door to and from Room 15. Renato proceeded to the teacher's
platform nearest the door and for the fourth time fired at Francis as the latter was rushing
towards the door. This time, Francis was hit on the head and he fell on the back of Ruel and
both fell to the floor. Ruel was pulled out of the room by a friend; Francis remained
sprawled on the floor bleeding profusely. 7
Renato then went out of Room 15, and paced between Rooms 14 and 15. A teacher, Mr.
Pablo Baluma, apparently unaware that it was Renato who had gunned down Francis,
approached Renato and asked him to help Francis as the latter was still alive inside the
room. Renato thereupon re-entered Room 15, closed the door behind him, saying: "So, he is
still alive. Where is his chest?" Standing over Francis sprawled face down on the classroom
floor, Renato aimed at the chest of Francis and fired once more. The bullet entered Francis'
back below the right shoulder, and exited on his front chest just above the right nipple. 8
Renato then left with two (2) remaining students and locked Francis alone inside Room 15.
Renato proceeded to the ground floor and entered the faculty room. There, he found some
teachers and students and ordered them to lock the door and close the windows, in effect
holding them as hostages. He also reloaded his gun with five (5) bullets. After some time,
a team of Philippine Constabulary troopers led by Capt. Larino Lazo arrived and
surrounded the faculty room. With a hand-held public address device, Capt. Lazo called
upon Renato to surrender himself. Renato did not respond to this call. Renato's brother
approached Capt. Lazo and volunteered to persuade his brother to give up. Renato's father
who, by this time had also arrived, pleaded with Renato to surrender himself. Renato then
turned over his gun to his brother through an opening in the balustrade of the faculty room.
Capt. Lazo took the gun from Renato's brother, went to the door of the faculty room,
entered and placed Renato under arrest. 9
Meantime, as soon as Renato left Room 15, some teachers and students came to rescue
Francis but could not open the door which Renato had locked behind him. One of the
students entered the room by climbing up the second floor on the outside and through the
window and opened the door from the inside. The teachers and students brought Francis
down to the ground floor from whence the PC soldiers rushed him to the Celestino
Gallares Memorial Hospital. 1 0 Francis died before reaching the hospital.
Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy, Tagbilaran City. The
officer deposited the revolver recovered from Renato which was an Airweight Smith and
Wesson .38 caliber revolver, with Serial No. 359323, as well as the five (5) live bullets
removed from the said revolver, and the five (5) empty cartridges which Renato had turned
over to him. Ballistic examination conducted by Supervising Ballistician, Artemio
Panganiban, National Bureau of Investigation, Cebu, showed that the empty cartridge
cases had been fired from the revolver recovered from Renato. 1 1
Appellant at the outset assails the trial court for having believed the prosecution's version
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of the facts instead of the version offered by the appellant. The trial court took into
account, inter alia, the positive and direct testimony of: cdll

1. Mrs. Liliosa Baluma who testified as to, among other things, the events
which took place inside her English III classroom immediately before the shooting;
2. Ruel Ungab — a fifteen (15) year old classmate of Renato and Francis, who
had fallen on the floor with Francis when the latter was finally hit by Renato;
3. Damaso Pasilbas — the Mathematics teacher who was holding his class
when Renato had burst into Room 15 and started firing at Francis; and
4. Napoleon Jumauan — another sixteen (16) year old, classmate of Renato
and Francis who was inside the classroom when Renato had started firing at
Francis and who was only about a foot away from the head of Francis when
Renato, having re-entered Room 15, had fired at Francis as the latter was
sprawled on the floor of the classroom.

After careful examination of the record, we find no reason to disagree with the conclusion
of the trial court that Renato had indeed shot and killed Francis under the circumstances
and in the manner described by these witnesses.
1. The claim of self-defense.
Renato claimed that he was acting in self-defense, or at least in incomplete self-defense,
when he shot Francis. For a claim of self-defense to be sustained, the claimant must show
by clear and convincing evidence that the following requisites existed:
a) unlawful aggression on the part of the victim;
b) reasonable necessity of the means employed by the accused to repel
the aggression; and
c) lack of sufficient provocation on the part of the accused. 1 2
Testifying in his own behalf, Renato said that a few minutes before the end of Mrs.
Baluma's English III class, Francis had approached him:
"(Atty. Seno, Defense Counsel)
Q: How did it happened (sic) that you had a conversation with Francis?

(Renato)
A: While the class was going on, Mrs. Baluma was writing on the
blackboard.
Q: Then what happened?
A: While our teacher was writing on the blackboard Francis suddenly got
near me.
Q: And what happened when Francis approached you?
A: He said, 'So you are brave now you had a (sic) guts to fight against
me.'
Q: And what else did he say?

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A: He said, 'Go home, get your firearm because I will go home to get a
gun.'
Q: Was that all that he told you?
A: He further said, 'You go home get your firearm, if you won't go home
and get a gun, I will go to your place and kill you including your
parents, brothers and sisters.'

Q: And after that where did Francis go?

A: Before the bell rang he went ahead." 1 3
(Emphasis supplied)

We note at the outset that there was no evidence before the Court, except Renato's own
testimony, that Francis had uttered the above statements attributed to him by Renato.
Although there had been about twenty-five (25) other students, and the teacher, in the
classroom at the time, no corroborating testimony was offered by the defense. In the
second place, assuming (arguendo merely) that Francis had indeed made those
statements, such utterances cannot be regarded as the unlawful aggression which is the
first and most fundamental requirement of self-defense. Allegedly uttered in a high school
classroom by an obviously unarmed Francis, such statements could not reasonably inspire
the "well grounded and reasonable belief" claimed by Renato that "he was in imminent
danger of death or bodily harm." 1 4 Unlawful aggression refers to an attack that has
actually broken out or materialized or at the very least is clearly imminent: it cannot consist
in oral threats or a merely threatening stance or postured. 1 5 Further, as pointed out by the
Solicitor General, Francis was obviously without a firearm or other weapon when Renato
returned and burst into Room 15 demanding to know where Francis was and forthwith
firing at him repeatedly, without the slightest regard for the safety of his other classmates
and of the teacher. There being no unlawful aggression, there simply could not be self-
defense whether complete or incomplete, 1 6 and there is accordingly no need to refer to
the other requirements of lawful self-defense.
2. The claim that P.D. No. 1866 is inapplicable.
As pointed out at the outset, appellant was charged with unlawful possession of an
unlicensed firearm, a Smith and Wesson Airweight .38 caliber revolver with five (5) spent
bullets and five (5) live ones and with having used such firearm and ammunition to shoot
to death Francis Ernest Escaño III, in violation of Section 1 of P.D. No. 1866.
Section 1 of P.D. No. 1866 provides, in relevant part, that:
"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to be
Used in the Manufacture of Firearms or Ammunition. — The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed upon any
person who shall unlawfully manufacture, deal in, acquire, dispose, or possess
any firearms, part of firearm, ammunition, or machinery, tool or instrument used
or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the
penalty of death shall be imposed." (Emphasis supplied)

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Appellant urges that P.D. No. 1866 is inapplicable to him "considering that the reason for
its [P.D. No. 1866] issuance no longer exists." He argues that P.D. No. 1866 was
enforceable only during the existence of martial law, and that when martial law was "lifted
in 1979," the reason for the "existence" of P.D. No. 1866 faded away, with the result that the
"original law on firearms, that is, Section 2692 of the [Revised] Administrative Code,
together with its pre-martial law amendments, came into effect again thereby replacing
P.D. No. 1866." 1 7
There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which
suggests that it was intended to remain in effect only for the duration of the martial law
imposed upon the country by former President Marcos. Neither does the statute contain
any provision that so prescribes its lapsing into non-enforceability upon the termination of
the state or period of martial law. On the contrary, P.D. No. 1866 by its own terms
purported to "consolidate, codify and integrate" all prior laws and decrees penalizing illegal
possession and manufacture of firearms, ammunition and explosives in order "to
harmonize their provisions," as well as to update and revise certain provisions and prior
statutes "in order to more effectively deter violators of the law on firearms, ammunitions
and explosives." 1 8 Appellant's contention is thus without basis in fact.
LLphil

3. The claim of double jeopardy.

It is also contended by appellant that because he had already been charged with illegal
possession of a firearm and ammunition in Criminal Case No. 4007, aggravated by the use
of such unlicensed firearm to commit a homicide or murder, he was unconstitutionally
placed in jeopardy of punishment for the second time when he was charged in Criminal
Case No. 4012 with murder "with the use of an unlicensed [firearm]," in violation of Article
248 of the Revised Penal Code in relation to Section 17 of B.P. Blg. 179.
It is elementary that the constitutional right against double jeopardy protects one against
a second or later prosecution for the same offense, and that when the subsequent
information charges another and different offense, although arising from the same act or
set of acts, there is no prohibited double jeopardy. In the case at bar, it appears to us quite
clear that the offense charged in Criminal Case No. 4007 is that of unlawful possession of
an unlicensed firearm penalized under a special statute, while the offense charged in
Criminal Case No. 4012 was that of murder punished under the Revised Penal Code. It
would appear self-evident that these two (2) offenses in themselves are quite different one
from the other, such that in principle, the subsequent filing of Criminal Case No 4012 is not
to be regarded as having placed appellant in a prohibited second jeopardy.
We note that the information in Criminal Case No. 4007 after charging appellant with
unlawful possession of an unlicensed firearm and ammunition, went on to state that said
firearm and ammunition had been used to shoot to death Francis Ernest Escaño III. We
note also that the amended information in Criminal Case No. 4012 after charging appellant
with the unlawful killing of Francis Ernest Escaño III, stated that the killing had been done
with the use of an unlicensed firearm. We believe these additional allegations in the two (2)
informations did not have the effect of charging appellant with having committed the
same offense more than once.
However, in sentencing Renato to suffer the penalty of death for the crime of murder, the
trial court did take into account as a "special aggravating circumstance" the fact that the
killing of Francis had been done "with the use of an unlicensed firearm." In so doing, we
believe and so hold, the trial court committed error. There is no law which renders the use
of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an
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information charging homicide or murder, the fact that the death weapon was an
unlicensed firearm cannot be used to increase the penalty for the second offense of
homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The
essential point is that the unlicensed character or condition of the instrument used in
destroying human life or committing some other clime, is not included in the inventory of
aggravating circumstances set out in Article 14 of the Revised Penal Code. 1 9
In contrast, under an information for unlawful possession (or manufacture, dealing in,
acquisition or disposition) of a firearm or ammunition, P.D. No. 1866 authorizes the
increase of the imposable penalty for unlawful possession or manufacture, etc. of the
unlicensed firearm where such firearm was used to destroy human life. Although the
circumstance that human life was destroyed with the use of the unlicensed firearm is not
an aggravating circumstance under Article 14 of the Revised Penal Code, it may still be
taken into account to increase the penalty to death (reclusion perpetua, under the 1987
Constitution) because of the explicit provisions of P.D. No. 1866. As noted earlier, the
unlawful possession of an unlicensed firearm or ammunition is an offense punished under
a special law and not under the Revised Penal Code.
4. The claim that there was no treachery.
Appellant contends that there was no treachery present because before any shot was
fired, Renato had shouted "where is Francis?" Appellant in effect suggests his opening
statement was a warning to Francis and that the first three (3) shots he had fired at
Francis were merely warning shots. Moreover, building upon his own testimony about the
alleged threat that Francis had uttered before he (Renato) left his English III class to go
home and get a gun, appellant argues that Francis must have anticipated his return and
thus had sufficient time to prepare for the coming of the appellant. 2 0 Appellant's
contention, while ingenious, must be rejected. The trial court made a finding of treachery
taking explicit account of the following factors:
"1. Room 15 of the Divine Word College, High School Department, Tagbilaran
City, is situated in the second floor of the building. It is a corner room and it has
only one (1) door which is the only means of entry and exit;
2. At the time of the attack, the deceased was seated on his chair inside his
classroom and was writing on the armrest of his chair and also talking to Ruel
Ungab and while their teacher, Mr. Damaso Pasilbas was checking the
attendance. The deceased was not aware of any impending assault neither did he
have any means to defend himself;
3. The accused used an airweight Smith & Wesson .38 caliber revolver in
shooting to death the defenseless and helpless Francis Ernest Escaño;

4. The attack was so sudden and so unexpected. The accused consciously

conceived that mode of attack;
5. The accused fired at Francis again and again and did not give him a
chance to defend himself. After the deceased was hit on the head and fell to the
floor while he was already sprawled and completely defenseless the accused
fired at him again and the deceased was hit on the chest;

6. The deceased was not armed. He was totally defenseless. He was

absolutely not aware of any coming attack." 2 1

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The Court also pointed out that Renato must have known that Francis while inside Room
15 had no means of escape there being only one (1) door and Room 15 being on the
second floor of the building. Renato in effect blocked the only exit open to Francis as he
stood on the teacher's platform closest to the door and fired as Francis and Ruel sought to
dash through the door. Renato's question "where is Francis?" cannot reasonably be
regarded as an effort to warn Francis for he shot at Francis the instant he sighted the
latter, seated and talking to Ruel Ungab. That Renato fired three (3) shots before hitting
Francis with the fourth shot, can only be ascribed to the indifferent marksmanship of
Renato and to the fact that Francis and the other students were scurrying from one part of
the room to the other in an effort to evade the shots fired by Renato. The cumulative effect
of the circumstances underscored by the trial court was that the attack upon Francis had
been carried out in a manner which disabled Francis from defending himself or retaliating
against Renato. Finally, the circumstance that Renato, having been informed that Francis
was still alive, re-entered Room 15 and fired again at Francis who lay on the floor and
bathed with his own blood, manifested Renato's conscious choice of means of execution
which directly and especially ensured the death of his victim without risk to himself. 2 2 We
are compelled to agree with the trial court that treachery was here present and that,
therefore, the killing of Francis Ernest Escaño III was murder. Cdpr

5. The claim that there was no evident premeditation.

The trial court also found the presence of evident premeditation and appreciated the same
as a generic aggravating circumstance. Here, it is the urging of the appellant that the
requisites of evident premeditation had not been sufficiently shown. In order that evident
premeditation may be taken into account, there must be proof of (a) the time when the
offender formed his intent to commit the crime; (b) an action manifestly indicating that the
offender had clung to his determination to commit the crime; and (c) of the passage of a
sufficient interval of time between the determination of the offender to commit the crime
and the actual execution thereof, to allow him to reflect upon the consequences of his act.
2 3 The defense pointed out that barely fifteen (15) minutes had elapsed from the time
Renato left his English III class and the time he returned with a gun. While there was
testimony to the fact that before that fatal day of 14 December 1984, anger and
resentment had welled up between Francis and Renato, there was no evidence adequately
showing when Renato had formed the intention and determination to take the life of
Francis. Accordingly, we must discard evident premeditation as an aggravating
circumstance.
6. The claim that the killing was not done under the influence of a dangerous drug.
Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982 provides as follows:
"SEC. 17. The provisions of any law to the contrary notwithstanding, when a
crime is committed by an offender who is under the influence of dangerous drugs,
such state shall be considered as a qualifying aggravating circumstance in the
definition of a crime and the application of the penalty provided for in the Revised
Penal Code."

The trial court found that Francis was killed by Renato while the later was under the
influence of a dangerous drug, specifically marijuana, and took that into account as a
"special aggravating circumstance". No medical evidence had been submitted by the
prosecution to show that Renato had smoked marijuana before gunning down Francis.
Fourteen (14) days had elapsed after December 14,1984 before Renato was medically
examined for possible traces of marijuana; the results of the examination were negative.
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Defense witness Dr. Rogelio Ascona testified that in order to have a medically valid basis
for determining the presence of marijuana in the human system, the patient must be
examined within twenty-four (24) hours from the time he is supposed to have smoked
marijuana. 2 4 The prosecution had presented Orlando Balaba, a student at the Divine Word
College, High School Department, who testified that he found Renato and one Jaime Racho
inside the men's room of the High School Department sucking smoke from a hand-rolled
thing that look like a cigarette, that he had asked Renato what that was and that Renato
had replied "damo" (marijuana). 2 5 While the testimony of Orlando Balaba was
corroborated by two (2) other prosecution witnesses, we believe that Orlando Balaba's
testimony was incompetent to show that what Renato and Jaime Racho were smoking
inside the men's room was indeed marijuana. It was pointed out by appellant that Orlando
Balaba had never smoked nor smelled marijuana.
In the absence of medical evidence, the Court took into account certain detailed factors as
circumstantial evidence supporting the testimony of Orlando Balaba. These circumstances
were:
"The circumstance of place where the killing was committed, the circumstance of
the manner of the attack, the circumstance of holding hostage some teachers and
students inside the faculty room, the circumstance of terrifying an entire school,
the circumstance that sitting on a scrapbook is too insignificant as to arouse
passion strong enough to motivate a killing, are circumstantial evidences that
gave the court no room for doubt that prosecution witnesses Orlando Balaba,
Benjamin Amper and Allan de la Serna truthfully told the court that they saw the
accused smoking marijuana inside the comfort room at 1:45 in the afternoon of
December 14, 1984 . . ."" 2 6

The above circumstances pointed to by the trial court may be indicative of passionate
anger on the part of Renato; we do not believe that they necessarily show that Renato
had smoked marijuana before entering his English III class. In the absence of
competent medical or other direct evidence of ingestion of a dangerous drug, courts
may be wary and critical of indirect evidence, considering the severe consequences for
the accused of a nding that he had acted while under the in uence of a prohibited
drug. The Court considers that the evidence presented on this point was simply
inadequate to support the ruling of the trial court that Renato had shot and killed
Francis while under the influence of a prohibited drug.
7. The claim that appellant had voluntarily surrendered.
Appellant contends that he had voluntarily surrendered and that the trial court should have
considered that mitigating circumstance in his favor. The trial court did not, and we
consider that it correctly refused to do so. Firstly, Renato surrendered his gun, not himself,
2 7 by handing over the weapon through the balustrade of the faculty room. Secondly, he
surrendered the gun to his brother, who was not in any case a person in authority nor an
agent of a person in authority. 2 8 Thirdly, Renato did not surrender himself: he was arrested
by Capt. Lazo. The fact that he did not resist arrest, did not constitute voluntary surrender.
2 9 Finally, if it be assumed that Renato had surrendered himself, such surrender cannot be
regarded as voluntary and spontaneous. Renato was holed up in the faculty room, in effect
holding some teachers and students as hostages. The faculty room was surrounded by
Philippine Constabulary soldiers and there was no escape open to him. He was not entitled
to the mitigating circumstance of voluntary surrender.
8. Whether or not the crime was committed in contempt of or with insult to the public
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authorities.
The trial court held that the shooting to death of Francis had been done "in contempt of or
with insult to the public authorities:
"Under Republic Act 1978, as amended, a teacher of a public or private school is
considered a person in authority. The fact that Mr. Damaso Pasilbas, the teacher
in mathematics, was already checking the attendance did not deter the accused
from pursuing his evil act. The accused ignored his teacher's presence and pleas.
Not yet satisfied with the crime and terror he had done to Francis and the entire
school, the accused entered the faculty room and held hostage the teachers and
students who were inside that room. To the court, this act of the accused was an
insult to his teachers and to the school, an act of callus disregard of other's
feelings and safety and completely reprehensible." 3 0

We believe the trial court erred in so finding the presence of a generic aggravating
circumstance. Article 152 of the Revised Penal Code, as amended by Republic Act No.
1978 and Presidential Decree No. 299, provides as follows: cdphil

"Art. 152. Persons in authority and agents of persons in authority. — Who

shall be deemed as such. — In applying the provisions of the preceding and other
articles of this Code, any person directly vested with jurisdiction, whether as an
individual or as a member of some court or government corporation, board, or
commission, shall be deemed a person in authority. A barrio captain and a
barangay chairman shall also be deemed a person in authority.
A person who by direct provision of law or by election or by appointment by
competent authority, is charged with the maintenance of public order and the
protection and security of life and property, such as a barrio councilman, barrio
policeman and barangay leader and any person who comes to the aid of persons
in authority, shall be deemed an agent of a person in authority.
In applying the provisions of Articles 148 and 151 of this Code, teachers,
professors and persons charged with the supervision of public or duly recognized
private schools, colleges and universities, and lawyers in the actual performance
of their professional duties or on the occasion of such performance, shall be
deemed persons in authority. (As amended by P.D. No. 299, September 19,1973
and Batas Pambansa Blg. 873, June 12,1985)."

Careful reading of the last paragraph of Article 152 will show that while a teacher or
professor of a public or recognized private school is deemed to be a "person in
authority," such teacher or professor is so deemed only for purposes of application of
Articles 148 (direct assault upon a person in authority), and 151 (resistance and
disobedience to a person in authority or the agents of such person) of the Revised
Penal Code. In marked contrast, the rst paragraph of Article 152 does not identify
speci c articles of the Revised Penal Code for the application of which any person
"directly vested with jurisdiction, etc." is deemed "a person in authority." Because a
penal statute is not to be given a longer reach and broader scope than is called for by
the ordinary meaning of the ordinary words used by such statute, to the disadvantage
of an accused, we do not believe that a teacher or professor of a public or recognized
private school may be regarded as a "public authority" within the meaning of paragraph
2 of Article 14 of the Revised Penal Code, 3 1 the provision the trial court applied in the
case at bar.
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ACCORDINGLY, the decision of the trial court dated 31 July 1986 is hereby MODIFIED in
the following manner and to the following extent only:
1. In Criminal Case No. 4007, appellant shall suffer the penalty of
reclusion perpetua;
2. In Criminal Case No. 4012 — (a) the aggravating circumstances of
evident premeditation and of having acted with contempt of or insult to the public
authorities shall be DELETED and not taken into account; and (b) the special
aggravating circumstances of acting while under the in uence of dangerous drugs
and with the use of an unlicensed rearm shall similarly be DELETED and not taken
into account. There being no generic aggravating nor mitigating circumstances
present, the appellant shall suffer the penalty of reclusion perpetua.
The two (2) penalties of reclusion perpetua shall be served successively in accordance
with the provisions of Article 70 of the Revised Penal Code. As so modified, the decision of
the trial court is hereby AFFIRMED. Costs against appellant.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.
Footnotes

1. Rollo, pp. 11-12.

2. Rollo, pp. 13-14.

3. Ibid., pp. 30-93.
4. TSN, 12 November 1985, pp. 179-180.

5. TSN, 28 April 1986, pp. 11-16.

6. TSN, 1 April 1985, pp. 8-16, 30; TSN, 2 April 1985, pp. 5-11.

7. TSN, 2 April 1985, pp. 11, 12, 19-39; TSN, 25 April 1986, pp. 39-48.
8. TSN, 10 September 1985, pp. 144-147; TSN, 11 November 1985, pp. 106-107.

9. TSN, 1 April 1985, pp. 22-26.

10. TSN, 10 September 1985, pp. 152-154.

11. See Ballistic Report. Exhibit "I" for the Prosecution.

12. Article 11 (1), Revised Penal Code.

13. Appellant's Brief, pp. 23-24; Rollo, pp. 134-135.

14. Appellant's Brief, pp. 35-36; Rollo, pp. 146-147.

15. People v. Lachica, 132 SCRA 230 (1984).

16. People v. Nulla, 153 SCRA 471 (1987).

17. Appellant's Brief, p. 42; Rollo, p. 153.

18. Third, Fourth and Fifth Whereas Clauses, P.D. No. 1866.
19. And even if it were, the provisions of Article 62, paragraph 1 of the same Code would
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become applicable to prevent its being appreciated for the purpose of increasing the
imposable penalty:

"Article 62. Effects of the attendance of mitigating or aggravating circumstances

and of habitual delinquency, — . . .
(1) Aggravating circumstances which in themselves constitute a crime specially
punishable by law or which are included by the law in defining a crime and prescribing
the penalty therefor shall not be taken into account for the purpose of increasing the
penalty." (Emphasis supplied.)
20. Appellant's Brief, pp. 46-47; Rollo, pp. 157-158.

21. Rollo, pp. 82-83.

22. People v. Tingson, 47 SCRA 243 (1972).

23. People v. Estillore, 141 SCRA 456 (1986).

24. TSN, 1 April 1986, pp. 166-169.

25. TSN, 11 November 1985, pp. 172-175.

26. Rollo, p. 206.

27. People v. Palo, G.R. No. L-9593, 31 July 1957.

28. Article 13, paragraph 7, Revised Penal Code.

29. People v. Siojo, 61 Phil. 307 (1935); People v. Yuman, 61 Phil. 786 (1935); People v.
Velez, 58 SCRA 21 (1974); and People v. Conwi, 71 Phil. 595 (1976).
30. Decision, RTC, p. 45; Rollo, p. 207.

31. Reyes, L.B., Revised Penal Code, p. 133 (1981 ed.).

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SECOND DIVISION

[G.R. No. L-24002. January 21, 1974.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. FRANCISCO

DIAZ and GERARDO DIAZ , defendants-appellants.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General Paci co P . de

Castro and Solicitor Eduardo C . Abaya for plaintiff-appellee.
Jovito R. Salonga for defendants-appellants.

DECISION

AQUINO , J : p

This is an appeal of defendants Francisco Diaz and Gerardo Diaz from the
decision of the Court of First Instance of Samar convicting them of murder.
Gerardo was sentenced to reclusion perpetua, while Francisco was sentenced to
an indeterminate penalty of ten (10) years and one (1) day of prision mayor to
seventeen (17) years of reclusion temporal. Both appellants were ordered to pay
solidarily to the heirs of Quintin Tadia an indemnity in the sum of six thousand pesos
(P6,000) and to pay the costs proportionately. (Criminal Case No. 202-CC).
There should be no di culty in resolving the appeal. The case is classic in its
simplicity. The prosecution's evidence consists of eyewitness testimony or direct
evidence, not deceptive circumstantial evidence. Appellant Francisco Diaz admits that
he killed Tadia. He justi es the killing on the ground of self-defense. His younger
brother Gerardo denies any participation in the killing. He has set up the easily
contrivable defense of alibi.
So, the main issue is whether credence can be accorded to Francisco Diaz's plea
of self-defense and Gerardo's alibi.
The alternative issues are whether the brothers conspired to kill the victim and
whether treachery and evident premeditation should qualify the killing as murder. The
trial court did not pass upon those ancillary issues.
The evidence for the prosecution shows that at about two o'clock in the
afternoon of September 4, 1963 Remegia Carasos, a fourteen-year old girl, and her rst
cousin, Anita Pacaira (Pakaira), eleven years old, were gathering camotes in a farm
located at a place ttingly called Sitio Camotian, Barrio Perito, municipality of Sta.
Margarita, Western Samar.
In that peaceful, rustic scene, there suddenly appeared Francisco Diaz (Ansing or
Francing), a twenty-four year old unmarried farmer of that place, whom Remegia and
Anita had known for many years. Without any preliminaries, he embraced Remegia from
behind and against her will and held her breast. He knelt behind her while she was
gathering camotes. She shouted for help, saying: "Anita (Aning), help me because I am
being embraced". Reacting to Remegia's cry for help, Anita, with the a bolo, struck
Francisco on the head and hands. Francisco released Remegia and ed. He suffered
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some injuries in consequence of those blows. The injuries were treated at the
puericulture center by the sanitary inspector (Exh. D and D-1).
The two girls left the camote farm and hastened to the house of Quintin Tadia
(Tadya), their grandfather, in Sitio Ilawod. They informed him that Francisco Diaz had
embraced and abused Remegia. Remegia had been brought up by her grandfather. She
was then staying with him. Anita was living with her parents in a house about six brazas
from Tadia's house.
Tadia immediately reported the incident to the barrio lieutenant. He gave Tadia a
note for the municipal authorities so that the proper complaint could be led against
Francisco Diaz.
At around seven o'clock in the morning of the following day, September 5th,
Tadia, accompanied by his teenage granddaughters, Remegia and Anita, was on his way
to the poblacion of Sta. Margarita to le complaint. He was unarmed. He was carrying
on his back a catopis, an oblong basket about four by two "palms' length" containing
provisions of boiled camotes. He was walking ahead, followed by Remegia and Anita
one braza behind him.
While they were ascending the hill or cliff ( pangpang in Waray dialect) in Sitio
Ilawod, Francisco Diaz and his younger brother Gerardo (Adong), twenty-one years old,
appeared on the crest of the hill. Both were wearing denim pants and white shirts.
Gerardo was armed with a locally made shotgun called bardog (Exh. C), about fty
inches long. He immediately red sidewise at Tadia while about four meters from the
latter, hitting him in the neck. The shot felled Tadia. He rolled down the lower part of the
cliff near the Alao Creek and lay there flat on his back with his catopis.
Then, the brothers jumped to the lower part of the cliff. Gerardo told his brother:
"Go ahead, Francisco, stab that fellow". Francisco placed his foot on the prostrate body
of Quintin Tadia, bent over him and repeatedly stabbed him in different parts of his
body. Francisco was armed with a bolo commonly called utak which is used in
gathering firewood.
After witnessing the assault, Remegia Carasos ran in the direction of her house.
Anita Pacairo hid herself among the bushes or tall grasses "sitting, crouching and
peeping" and "seeing all that was happening" (78 tsn). Tadia died on the spot where he
fell. Gerardo placed his bardog on a moss-covered stone called palanas about three
brazas from Tadia's body. Remegia informed her father and the inhabitants of the
barrio about the ambuscade and the killing of her grandfather. Gerardo Diaz went home
while Francisco surrendered to the authorities.
Doctor Tecla Tagle Valley, the town's municipal health o cer, performed an
autopsy on the body of the deceased Quintin Tadia. Her medical ndings indicate that
the following injuries caused the death of the sixty-two year old victim:
"1. Internal hemorrhage due to penetrating wounds on the chest about
two and one-half inches long and five inches in depth, penetrating the lower lobe
of the right lung, superior vena cava and the right ventricle of the heart.

2. Punctured wound, one inch long and one inch in depth, left
mandibular region.

3. Stab wound, one inch long and one half inch in depth below left ear.

4. Penetrating wound, four inches in depth, about one centimeter in

circumference, occipital region.
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5. Penetrating wound, four inches and one half in depth, about one
centimeter in circumference at the nape.
6. Stab wound, one-half inch in depth and three inches long, left
shoulder.

7. Punctured wound, left leg, about two inches long, penetrating thru
the side portion." (Exh. A).

Doctor Valley found two pellets ( perdigones or birdshot) in the two gunshot wounds.
The pellet found in the nape is Exhibit B.
On September 6, 1963 Gerardo Diaz was arrested in Barrio Perito by Policemen
Venancio Melka and Simplicio Calibo. He did not resist arrest. He was in good physical
condition. On September 9, 1963, or four days after the killing, Remegia and Anita
executed before the municipal judge sworn statements wherein they recounted the
antecedents and details of the killing (pages 3 to 8 of the Record), On that same date
the chief of police led in the municipal court a complaint for murder against the Diaz
brothers.
They waived the preliminary investigation. The case was remanded to the Court
of First Instance at Calbayog City where, on November 6, 1963, the scal led against
them an information for murder.
As already noted, appellant Francisco Diaz, while assuming sole responsibility for
the killing, set up the exculpatory plea of self-defense. His version was that he and
Tadia were neighbors. Because he did not accede to Tadia's request for a pig, Tadia
allegedly followed him to his abaca plantation near the Alao River. When Francisco
again refused to grant Tadia's request for the pig, the latter allegedly hacked Francisco
with his bolo, wounding him in the hand between the middle and index ngers and in the
left side of his head. Francisco retreated, but when he was cornered, "he pulled the
trigger of" his shotgun, causing Tadia "to release his bolo". Francisco then picked up
Tadia's bolo (note that Francisco himself had his own bolo). He threw away his gun and
repeatedly stabbed Tadia. After the stabbing he surrendered to the authorities.
The inveracity of Francisco's version is quite apparent. The wounds, which
according to Francisco were in icted by Tadia, were the injuries which were in icted on
him on the preceding day by Anita Pacairo (Exh. D-1). The improbable facets of his
story induce disbelief. A trivial cause may possibly provoke a man to assault another
person. But it was unlikely in this case that Tadia, a sexagenarian grandfather, would
have gone to the extent of assaulting the twenty-four year old Francisco Diaz who was
armed with a gun and a bolo, just because the latter refused to give him a pig.
The prosecution eyewitnesses, Remegia Carasos and Anita Pacaira, positively
identi ed Gerardo Diaz as the gunwielder who with his brother, Francisco, ambushed
Tadia on the cliff. Such an unmistakable identi cation cannot be negated by the alibi
interposed by Gerardo Diaz. He claimed that on September 5, 1963 he was in his house
"having a headache and his bones were aching" (p. 7, Appellant's Brief). He said that he
was treated by Honorio Albite. His mother said that Gerardo was treated by Liloy Diaz.
Gerardo said that he was already sick on September 2, 1963. His mother, who does not
know the months of the year, said that he got sick on September 4th. These
discrepancies weaken Gerardo's alibi. Modesto Diaz, the father of Gerardo, tried to
corroborate his alibi. Modesto, a "hopelessly illiterate" person, did not know the month
and year when Gerardo was sick.
Gerardo's supposed indisposition could not have prevented him from going to
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the cliff with Francisco and waylaying the unsuspecting and unfortunate Tadia. To
establish an alibi, the accused must show that he was at another place for such a
period of time that it was impossible for him to have been at the place where the crime
was committed at the time of its commission (People vs. Resayaga, L-23234,
December 26, 1973; People vs. Lumantas, L-28355, July 17, 1969, 28 SCRA 764, 768).
The alibi of Gerardo Diaz cannot be sustained. His counsel de o cio agrees "that the
defense of alibi is inherently weak and is generally received with caution". In this case, it
was evidently a manufactured alibi.
The trial court carefully observed the demeanor of Remegia Carasos and Anita
Pacaira while testifying. It found them to be "candid and trustworthy" eyewitnesses. The
killing was perpetrated in broad daylight. Remegia was even able to recollect the
garments worn by the Diaz brothers.
As appropriately observed by the trial court, the brothers conspired to kill Tadia
to prevent him from ling a charge of abusos deshonestos. Moreover, Francisco Diaz
might have felt aggrieved because Anita Pacaira had hit him with a bolo and wounded
him in the head and hand (Exh. D-1).
The alternative contention of appellant Gerardo Diaz is that he did not conspire
with his brother Francisco in assaulting Tadia and that he should be held liable only for
lesiones for shooting the victim. That contention is belied by the record.
Doctor Valley found that two gunshots wounds were in icted. One was a
penetrating wound in the occipital region and another was a penetrating wound in the
nape (Nos. 4 and 5, Exh. A). She testi ed that, because those wounds were not treated,
they contributed to the victim's death. Gerardo was the one who in icted those
wounds. He used a deadly weapon. He red at the vital parts of the victim's body. He
desisted from ring further because the victim had fallen on the river bank below the
cliff as a result of the rst shot and was beyond the range of his gun, which was
intended for hunting birds.
The conspiracy between the brothers to kill Tadia may be inferred from the
antecedents and circumstances surrounding the killing. The lascivious or vexatious act
committed by Francisco Diaz on Remegia Carasos was reported to the barrio
lieutenant. He advised Tadia to go to town and lodge a complaint with the proper
authorities. That fact must have been known to Francisco Diaz. He wanted to forestall
that eventuality. To accomplish that objective, he decided to liquidate Tadia. It was
natural or probable that he should seek the collaboration of his younger brother
Gerardo.
The two brothers appeared together on the cliff on that fateful morning of
September 5, 1963 to ambush Tadia. Gerardo was armed with a deadly weapon that
could be employed at a distance without exposing himself to any immediate retaliatory
act of the victim. He commenced the assault by ring at Tadia. Then, when Tadia fell
down the cliff, Gerardo maliciously induced or instructed Francisco to continue the
assault by stabbing the fallen Tadia. Francisco obeyed that injunction by in icting ve
stab wounds on the defenseless victim. These circumstances reveal that the brothers
acted in concert, impelled by their common design to kill Tadia. Their liability for the
killing is collective, not individual or separate.
The appellants' defenses are untenable in their transparent imsiness and
fabricated character. It results that the strong, clear and convincing evidence of the
prosecution on the felonious killing perpetrated by the appellants may be regarded as
conclusive. Their guilt has been established beyond reasonable doubt.
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The crime committed by the appellants is murder quali ed by treachery as
alleged in the information. There was treachery (alevosia) because the brothers made a
deliberate surprise or unexpected assault on Tadia. They literally ambushed him. They
waited for him on the cliff, a high ground which rendered it di cult for him to ee or
maneuver in his defense. Tadia was shot sidewise while he was ascending the hill or
cliff burdened by his catopis or food basket. That was another circumstance which
handicapped him in resisting the assault. The initial attack was successful. Tadia fell
and rolled down the cliff and landed near the creek below. In that helpless state, he was
ruthlessly stabbed by Francisco Diaz.
The appellants resorted to means of execution which directly and specially
insured the killing without any risk to themselves arising from any defense which the
victim could have made. Actually, he was not able to make any defense unarmed and
attacked unawares as he was. The treacherous mode of attack is incontrovertible (Par.
16, Art. 14 and Art. 248, Revised Penal Code).
The attack was also attended with abuse of superiority. Two armed young men
unexpectedly assaulted an unarmed sexagenarian. However, abuse of superior strength
is merged with treachery.
The circumstance of old age cannot be considered aggravating. There was no
evidence that the accused deliberately intended to offend or insult the age of the victim.
That circumstance may be absorbed in treachery (People vs. Gervacio, L-21565, August
30, 1968, 24 SCRA 960; People vs. Mangsant, 65 Phil. 548; People vs. Limaco, 88 Phil.
35, 44).
The trial court did not make any nding as to the degree of instruction of the
offenders. Hence, on appeal, that alternative circumstance cannot be considered in
xing the penalty on the appellants (People vs. Casillar, L-28132, November 25, 1969,
30 SCRA 352, 358).
As to Francisco Diaz, evident premeditation should appreciated. It should be
recalled that the embracing incident was reported by Tadia to the barrio lieutenant after
two o'clock in the afternoon of September 4, 1963. That functionary advised Tadia to
le a complaint with the authorities in the town of Sta. Margarita. It may reasonably be
assumed that Francisco Diaz became aware that same afternoon that Tadia, who was
his neighbor, was going the poblacion to lodge a complaint against him. That would
explain why early in the morning of the next day, September 5th, at about seven o'clock,
he and his brother were already in the hill or cliff waiting for Tadia who was on his way
to town. The trial court said:
"Francisco having been boloed on the head, he and his younger brother
must have decided to, and thus conspired, to retaliate. For this purpose they
armed themselves. Second, having come to know that the deceased was going to
the poblacion, in company with Remegia Carasos and Anita Pacaira to le the
corresponding complaint against Francisco Diaz for abusing Remegia Carasos,
both accused must have decided and, so deciding must have confabulated, to
waylay the deceased so as to prevent him from pursuing his plan."

Thus, there was a su cient interval of time, more than one-half day, within which
appellant Francisco Diaz had full opportunity for meditation and re ection and to allow
his conscience to overcome the resolution of his will (vencer las determinaciones de la
voluntad) had he desired to hearken to its warnings (U.S. vs. Gil, 13 Phil. 530, 547).
However, with respect to Gerardo Diaz, premeditacion conocida should not be
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appreciated. Obviously, he participated in the assault in order to help his elder brother
who exercised some moral ascendancy over him and who was the one directly affected
by the embracing incident which preceded the killing (People vs. Talok, 65 Phil. 696,
707; Art. 62, Revised Penal Code).
Premeditation, which was alleged in the information as a qualifying circumstance,
should be considered only as a generic aggravating circumstance with respect to
Francisco Diaz since treachery has already been used to qualify the killing as murder
(See People vs. Ubiña, 97 Phil. 515, 535). In his case, it is offset by the mitigating
circumstance of voluntary surrender to the authorities.
The penalty for murder, which is reclusion temporal maximum to death, should
be imposed in its medium period on Francisco Diaz. He should be sentenced to
reclusion perpetua (Arts. 64[4] and 248, Revised Penal Code).
With respect to Gerardo Diaz, as no generic aggravating and mitigating
circumstances can be considered in his case, he was properly sentenced by the trial
court to reclusion perpetua (Arts. 64[1] and 248, Revised Penal Code).
The indemnity which the appellants should pay to the heirs of Quintin Tadia
should be raised to twelve thousand pesos (P12,000).
The ironical twist in this case is that an old man paid with life for his attempt to
abide by the law, that is, to vindicate his granddaughter's honor through lawful means.
He lost his life because the appellants chose to take the law into their own hands. For
such flagitious lawlessness, full and condign retributory punishment should be meted.
Accordingly, the judgment of the trial court should be modi ed. Francisco Diaz is
sentenced to reclusion perpetua with its accessory penalties. The appellants are
ordered to pay solidarily to the heirs of Quintin Tadia the sum of P12,000 as indemnity
(Art. 110, Revised Penal Code). In other respects, the trial court's judgment is a rmed
with costs against the appellants.
The bene ts of article 29 of the Revised Penal Code, regarding preventive
imprisonment, may be extended to the appellants if the conditions laid down in
Republic Act No. 6127 are satisfied. So ordered.
Zaldivar, Fernando, Barredo, Antonio and Fernandez, JJ ., concur.

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EN BANC

[G.R. Nos. 135051-52. December 14, 2000.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . CLARITO

ARIZOBAL (at large), ERLY LIGNES and TWO (2) JOHN DOES ,
accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorneys Office for accused-appellants.

SYNOPSIS

Accused-appellants Erly Lignes and Clarito Arizobal (still at large) were convicted by
the trial court of the special complex crime of robbery with homicide and were sentenced
to suffer the supreme penalty of death. In this appeal, accused-appellants attempted to
discredit the testimonies of the prosecution witnesses by underscoring their alleged
inconsistent, con icting and incredible statements. Accused-appellant Lignes asserted
that the failure of Clementina Gimenez to actually witness the killing of her son and her
husband is adequate proof that she failed to identify him as the killer.
The Supreme Court a rmed the conviction of appellants. According to the Court,
accused-appellants seemed to have overlooked the signi cance of conspiracy, as a rule
for collective criminal liability, where it is not necessary to show that all the conspirators
actually hit and killed the victim; what is important is that all participants performed
speci c acts with such closeness and coordination as unmistakably to indicate a common
purpose or design in bringing about the death of the victim. The fact that accused-
appellants conspired in the commission of the crime charged was su ciently and
convincingly shown by their active participation in ransacking the belongings of the two (2)
Gimenez families, tying and holding Francisco and Erlinda's son immobile while the others
led the two (2) hapless victims to the threshold of their obliteration.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; TRIAL COURT'S

ASSESSMENT THEREOF, BINDING UPON THE COURT. — The issues raised are factual and
involve the credibility of the witnesses. It is doctrinally settled that in the absence of any
showing that the trial court's calibration of factual issues, particularly on the matter of
credibility, is awed this Court is bound by its assessment. The rationale is the
presumption that the trial court is in a better position to decide the question, having heard
the witnesses and observed their deportment and manner of testifying during the trial. We
find no plausible reason to deviate therefrom.
2. ID.; ID.; ID.; LAPSES ON MINOR DETAILS, NOT SERIOUS AS TO WARRANT
REVERSAL OF THE VERDICT OF CONVICTION. — Admittedly, the prosecution witnesses
did not give a consistent account of the whole gut-wrenching episode, particularly on the
matter of the number of times Clementina allegedly saw the accused-appellant at the ea
market; the exact number of masked robbers and other minor details. These lapses
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however are not so serious as to warrant the reversal of the verdict of conviction of
accused-appellant and his co-accused who, as the record shows, were categorically
identified as two (2) of the perpetrators of the crime.
3. ID.; ID.; ALIBI; ALIBI CRUMBLES IN THE FACE OF POSITIVE IDENTIFICATION.-
Alibi, as it has been repeatedly held, is one of the weakest defenses as it is easy to concoct
although di cult to prove. In the face of positive identi cation by credible prosecution
witnesses, accused-appellant's defense of alibi must necessarily crumble. For alibi to be
believed, credible and tangible proof of physical impossibility for the accused to be at the
scene of the crime is indispensable.
4. CRIMINAL LAW; CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY;
CONSPIRACY; SHOWN BY PERFORMANCE OF SPECIFIC ACTS INDICATIVE OF COMMON
PURPOSE OR DESIGN; ESTABLISHED IN CASE AT BAR. — Accused-appellant Erly Lignes
asserts that the failure of Clementina Gimenez to actually witness the killing of her son and
her husband is adequate proof that she failed to identify him as the killer. We do not agree.
Accused-appellant seems to have overlooked the signi cance of conspiracy, as a rule for
collective criminal liability, where it is not necessary to show that all the conspirators
actually hit and killed the victim; what is important is that all participants performed
speci c acts with such closeness and coordination as unmistakably to indicate a common
purpose or design in bringing about the death of the victim. The fact that accused-
appellant conspired in the commission of the crime charged was su ciently and
convincingly shown by his active participation in ransacking the belongings of the two (2)
Gimenez families, tying and holding Francisco and Erlinda's son immobile while the others
led the two (2) hapless victims to the threshold of their obliteration.
5. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY; NOT APPRECIATED IN
THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE; WHICH IS PRIMARILY
CLASSIFIED AS CRIME AGAINST PROPERTY AND NOT AGAINST PERSONS. — But
treachery way incorrectly considered by the trial court. The accused stand charged with,
tried and convicted of robbery with homicide. This special complex crime is primarily
classi ed in this jurisdiction as a crime against property, and not against persons,
homicide being merely an incident of robbery with the latter being the main purpose and
object of the criminals. As such, treachery cannot be validly appreciated as an aggravating
circumstance under Art. 14 of The Revised Penal Code. This is completely a reversal of the
previous jurisprudence on the matter decided in a litany of cases before People v. Bariquit.
6. ID.; ID.; BAND; TO BE CONSIDERED AGGRAVATING THERE MUST BE PROOF
THAT AT LEAST FOUR (4) PERPETRATORS WERE ARMED; NOT PRESENT IN CASE CASE
AT BAR. — While it appears that at least ve (5) malefactors took part in the commission
of the crime, the evidence on record does not disclose that "more than three persons were
armed, and robbery in "band" means "more than three armed malefactors united in the
commission of robbery." Nowhere in the records can we gather that more than three (3) of
the robbers were armed. Hence, "band" cannot be aggravating where no proof is adduced
that at least four (4) of the five (5) perpetrators involved in this case were armed.
7. ID.; ID.; NIGHTTIME; NOT APPRECIATED AS NIGHTTIME WAS NOT
INTENTIONALLY SOUGHT. — We likewise hold that the aggravating circumstance of
nighttime did not attend the commission of the crime. The fact that the offense was
committed at 9:30 in the evening does not su ce to sustain nocturnidad for, by itself,
nighttime is not an aggravating circumstance. To be properly so considered, it must be
shown that nocturnidad was deliberately and intentionally sought by accused-appellants to
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help them realize their evil intentions. Nowhere can we infer from the records that the
malefactors sought the cover of darkness to facilitate the accomplishment of their
devious design. On the contrary, the locus criminis was well lighted and nighttime was
merely an incidental element to the whole drama.
8. ID.; ID.; DWELLING; CONSIDERED AGGRAVATING WHERE THERE IS
IMPUDENT DISREGARD OF THE VICTIM'S ABODE. — The trial court is correct in
appreciating dwelling as an aggravating circumstance. Generally, dwelling is considered
inherent in the crimes which can only be committed in the abode of the victim, such as
trespass to dwelling and robbery in an inhabited place. However, in robbery with homicide
the authors thereof can commit the heinous crime without transgressing the sanctity of
the victim's domicile. In the case at bar, the robbers demonstrated an impudent disregard
of the inviolability of the victims' abode when they forced their way in, looted their houses,
intimidated and coerced their inhabitants into submission, disabled Laurencio and Jimmy
by tying their hands before dragging them out of the house to be killed.
9. ID.; CIVIL LIABILITY; ACTUAL, MORAL AND EXEMPLARY DAMAGES. — As to
actual damages, it was proved that the robbers took the amount of P8,000.00 from the
family of the deceased Laurencio Gimenez and P1,000.00 from that of Jimmy Gimenez.
Their legal heirs must therefore be indemni ed for these losses. However, the award of the
trial court of P20,000.00 for moral damages and P30,000.00 for exemplary damages must
be modi ed to P50,000.00 and P20,000.00 for moral damages and exemplary damages,
respectively for the legal heirs of each victim.
TcCEDS

DECISION

PER CURIAM : p

Man in his inordinate pursuit of lucre oft equates human life with mere chattels and
plunges himself into the bottomless pit of his own folly. He is thus driven to plunder and
kill, crimes which are most reprehensible and ignominious as the criminal apparently leans
towards material gains than to the inestimable value of human life. Clarito Arizobal and Erly
Lignes come to us to assert and prove, if they must, that they are not cast of that mold. TDSICH

The factual backdrop: On 12 August 1994 two (2) separate Informations were led
before the Regional Trial Court of Cataingnan, Masbate, charging Clarito Arizobal, Erly
Lignes, Rogelio Gemino and two (2) John Does with Robbery in Band with Homicide for
robbing and slaying Laurencio Gimenez 1 and his son Jimmy Gimenez. 2
After arraignment, the two (2) cases were tried jointly. However, on 14 May 1997,
upon motion of accused Rogelio Gimeno, without objection from the prosecution, the two
(2) Informations were dismissed as against him for lack of evidence. But the same cases
remained as against accused Erly Lignes and Clarito Arizobal. Only accused Lignes
appeared at the trial until its termination as Arizobal escaped from detention and had to be
tried in absentia. 3 The two (2) John Does were never apprehended as they were not
sufficiently identified.
The prosecution presented, among others, Clementina Gimenez, wife of victim
Laurencio Gimenez. She testi ed that on 24 March 1994 she together with her husband
Laurencio Gimenez and a grandchild were sound asleep in their house in Tuybo, Cataingan,
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Masbate. At around 9:30 in the evening, Laurencio roused her from sleep and told her to
open the door because there were persons outside the house. Since it was pitch-dark she
lit a kerosene lamp and stood up to open the door. She was suddenly confronted by three
(3) armed men pointing their guns at her. She recognized two (2) of them as Clarito
Arizobal and Erly Lignes but failed to recognize the third person who was wearing a
maskara. She readily identified Clarito because she used to pass by his house in San Rafael
while Erly was also a familiar face as he was a regular habitué of the flea market.
According to Clementina, Clarito asked her husband, "Tay, where is your gun." But
she promptly interjected, "We have no gun, not even a bolo. If you want, you can look
around for it." 4 While the man in maskara stood guard at the door, Clarito and Lignes
barged into the master's bedroom and forcibly opened the aparador. The terri ed couple
could not raise a nger in protest but had to leave their fate to the whims of their
assailants. The intruders ransacked their cabinet and scattered everything on the floor until
they found P8,000.00 among sheets of paper. Before leaving with their loot they ordered
Laurencio to go with them to Jimmy's house because "we have something to talk about." 5
Against his will, Laurencio went with them. Clementina recalled that shortly after the group
left she heard a volley of shots. Her grandchild, as if sensing what befell her grandfather,
could only mutter in fear, "Lolo is already dead!"
Erlinda Gimenez, wife of Jimmy Gimenez, narrated that on 24 March 1994, after she
and her son had taken supper, her husband Jimmy with one Francisco Gimenez arrived.
Jimmy informed Erlinda that they had already bought a carabao. After he handed her the
certi cate of large cattle, and while he was in the process of skinning a chicken for their
supper, three (3) men suddenly appeared and ordered them to lie face down. One of them
pushed her to the ground while the others tied Francisco and Jimmy as they whipped the
latter with an armalite rifle. She noticed one of them wearing a mask, another a hat, and still
another, a bonnet. 6
Realizing the utter helplessness of their victims, the robbers took the liberty of
consuming the food and cigarettes Erlinda was selling in her sari-sari store. Finding no
softdrinks to complete their snack, two (2) of the intruders ordered Erlinda to buy coke for
them at the neighboring store. But they warned her not to make any noise, much less alert
the vendor. When they returned to the house of Jimmy, the robbers proceeded to ransack
the household in search for valuables. They took around P1,000.00 from her sari-sari store
and told them to produce P100,000.00 in exchange for Jimmy's life. Since the couple
could not produce such a big amount in so short a time, Erlinda offered to give their
certi cate of large cattle. The culprits however would not fall for the ruse and threw the
document back to her. Three (3) masked men then dragged Jimmy outside the house and
together with Laurencio brought them some fty (50) meters away while leaving behind
Clarito Arizobal and Erly Lignes to guard Francisco and Erlinda's son. Moments later she
heard a burst of gunfire which reverberated through the stillness of the night.
When the masked men returned to Jimmy's house, one of them informed Erlinda
that her husband and father-in-law had been killed for trying to escape. Upon hearing this,
Erlinda, as if the heavens had fallen on her, slowly lost consciousness. aAEHCI

The post-mortem examination report prepared by Dr. Allen Ching showed that
Jimmy Gimenez sustained injuries: (a) a gunshot wound located at the victim's zygomatic
area (right side near the ear) which may have caused brain hemorrhage; (b) a non-serious
gunshot wound at the upper back right side (armpit area); (c) a wound located at the
middle side of the trunk — considered as exit of wound No. 2; (d) gunshot wound at the
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right forearm; and, (e) a wound considered as a complication of the trajectory point of
wound No. 4 that caused the fracturing of a bone and exited as lacerated bone at the
posterior. 7
The medico-legal examination conducted on Laurencio Gimenez also showed: (a) a
chest wound penetrating the pericardium; (b) gunshot wound at the right thigh exiting at
the lumbar area, back; (c) gunshot wound at the left thigh below the knee; and, (d) cause of
death was respiratory arrest secondary to gunshot wounds. 8
Erly Lignes who testi ed in his defense explained that on 24 March 1994 at around
9:30 in the evening he was at the house of a neighbor, one Noli Hermosa, attending a house
blessing in San Pedro, Cataingan, Masbate. He helped as cook and food server. The
occasion was attended by around twenty (20) well-wishers who feasted on fried chicken
and tuba. In fact, two (2) of his friends, Andres Lapay and Alberto Senelong, were among
the group of drinkers. The celebration nally ended at 1:00 o'clock in the morning. Early
that morning he went home, which was only about a hundred meters away. 9
Erly Lignes also presented Andres Lapay who con rmed his defense of alibi. Andres
recounted that at 9:30 in the evening of 24 March 1994 he was at the house of Noli
Hermosa for the latter's house blessing. There he saw Erly in the kitchen preparing food
and drinks for the visitors. He also attended to Andres' group whenever they needed
additional food and tuba. According to witness Andres, he was certain that from the time
of his arrival at 7:00 o'clock in the evening to 11:00 o'clock Erly never went out of the
house of Hermosa. When asked whether he knew where Tuybo was, Andres answered in
the a rmative. He also clari ed that it would take a person about one and a-half (1-1/2)
hours by foot and about one hour (1) by horseback to travel from San Pedro to Tuybo.
On 30 March 1994 Erly Lignes was arrested in the house of Noli Hermosa and then
detained at the Cataingan Municipal Jail. Erlinda Gimenez, accompanied by three (3)
policemen, later went to the municipal jail and pointed to Clarito Arizobal as one of the
suspects in the robbing and killing of Laurencio and Jimmy Gimenez. Erly insisted that he
was not implicated by Erlinda as a suspect in the crime.
But the trial court gave full credence to the testimony of the prosecution witnesses
and rejected the alibi of accused-appellant Erly Lignes. On 7 July 1998 the court found
both accused Clarito Arizobal and Erly Lignes guilty of robbery with homicide, sentenced
them to suffer the supreme penalty of Death and to indemnify the legal heirs of Laurencio
Gimenez P50,000.00 for his death and P20,000.00 for moral damages, and the legal heirs
of Jimmy Gimenez P50,000.00 also for his death and P20,000.00 for moral damages, plus
P30,000.00 for exemplary damages. 10 Their cases are now before us on automatic review
in view of the penalty imposed.
As the lower court explained —
. . . There is direct relation and intimate connection between the robbery
and the killing. The accused were positively identi ed as perpetrators of the crime
by witnesses Clementina Gimenez and Erlinda Gimenez who have no motive to
falsely testify . . . Inasmuch as no improper motive have (sic) been ascribed to
prosecution witnesses and no shadow of evidence appears on record to blacken
their credibility, their testimony is worthy of full faith and credit . . . 11
Going to the denial and alibi interposed by accused Erly Lignes that he was
at San Pedro, Cataingnan, Masbate, helping as cook and food server of his
neighbor Noli Hermosa during a house blessing at the time of the robbing and
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killing and his belief that he was not identi ed (Exh. "2") by witnesses (especially
Erlinda Gimenez), and that he did not know Clarito Arizobal, the same cannot be
given any credence in the face of the testimony of Clementina Gimenez and
Erlinda Gimenez positively identifying him (Erly Lignes) and his co-accused
Clarito Arizobal as the culprits . . . . The place of the crime is only about six
kilometers and more or less one and a half hour travel by foot from the place
where the accused Erly Lignes was at the time of the commission of the crime. EcDATH

The robbery with killing was aggravated: 1) By a band because the

malefactors were more than three armed robbers acting together; 2) With
treachery because the robbers tied the hand of the victims before killing them; 3)
By nighttime (nocturnity) because the accused took advantage of the night; and,
4) By dwelling because the robbery is (sic) committed with violence against or
intimidation of persons . . . and the commission of the crime begun in the
dwelling . . . 12

Accused-appellant Erly Lignes attempted to discredit the testimonies of the

prosecution witnesses by underscoring their alleged inconsistent, con icting and
incredible statements. He pointed out that: (a) Clementina testi ed on direct examination
that she saw Erly Lignes in the ea market four (4) times, but on cross-examination she
averred that she saw the accused at the ea market in only three (3) occasions; (b) she
stated that three (3) persons entered their house and recognized Arizobal and Lignes
because they lighted a kerosene lamp and that she did not recognize the third person
because he was wearing a mask thus implying that Arizobal and Lignes were not wearing
masks, in utter disregard of the risk of being identi ed; (c) she failed to witness the actual
killing when she stated in her testimony that she came to know of it only the following
morning after she was informed by a neighbor thus implying that accused-appellant Erly
Lignes was not positively identi ed as the killer of the two (2) victims; and, (d) Erlinda
Gimenez stated that three (3) robbers were not wearing masks while two (2) were wearing
masks but later contradicted herself when she stated that three (3) of the masked robbers
executed her husband and father-in-law. 13
In essence, the issues raised are factual and involve the credibility of the witnesses.
It is doctrinally settled that in the absence of any showing that the trial court's calibration
of factual issues, particularly on the matter of credibility, is awed this Court is bound by
its assessment. The rationale is the presumption that the trial court is in a better position
to decide the question, having heard the witnesses and observed their deportment and
manner of testifying during the trial. 14 We find no plausible reason to deviate therefrom.
Admittedly, the prosecution witnesses did not give a consistent account of the
whole gut-wrenching episode, particularly on the matter of the number of times
Clementina allegedly saw the accused-appellant at the ea market; the exact number of
masked robbers and other minor details. These lapses however are not so serious as to
warrant the reversal of the verdict of conviction of accused-appellant and his co-accused
who, as the record shows, were categorically identi ed as two (2) of the perpetrators of
the crime.
Accused-appellant Erly Lignes asserts that the failure of Clementina Gimenez to
actually witness the killing of her son and her husband is adequate proof that she failed to
identify him as the killer. We do not agree. Accused-appellant seems to have overlooked
the signi cance of conspiracy, as a rule for collective criminal liability, where it is not
necessary to show that all the conspirators actually hit and killed the victim; what is
important is that all participants performed speci c acts with such closeness and
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coordination as unmistakably to indicate a common purpose or design in bringing about
the death of the victim. 15 The fact that accused-appellant conspired in the commission of
the crime charged was su ciently and convincingly shown by his active participation in
ransacking the belongings of the two (2) Gimenez families, tying and holding Francisco
and Erlinda's son immobile while the others led the two (2) hapless victims to the
threshold of their obliteration.
Alibi, as it has been repeatedly held, is one of the weakest defenses as it is easy to
concoct although di cult to prove. In the face of positive identi cation by credible
prosecution witnesses, accused-appellant's defense of alibi must necessarily crumble. For
alibi to be believed, credible and tangible proof of physical impossibility for the accused to
be at the scene of the crime is indispensable. 16
The trial court is correct in appreciating dwelling as an aggravating circumstance.
Generally, dwelling is considered inherent in the crimes which can only be committed in the
abode of the victim, such as trespass to dwelling and robbery in an inhabited place.
However, in robbery with homicide the authors thereof can commit the heinous crime
without transgressing the sanctity of the victim's domicile. 17 In the case at bar, the
robbers demonstrated an impudent disregard of the inviolability of the victims' abode
when they forced their way in, looted their houses, intimidated and coerced their
inhabitants into submission, disabled Laurencio and Jimmy by tying their hands before
dragging them out of the house to be killed. aATHIE

But treachery was incorrectly considered by the trial court. The accused stand
charged with, tried and convicted of robbery with homicide. This special complex crime is
primarily classified in this jurisdiction as a crime against property, and not against persons,
homicide being merely an incident of robbery with the latter being the main purpose and
object of the criminals. As such, treachery cannot be validly appreciated as an aggravating
circumstance under Art. 14 of The Revised Penal Code. 18 This is completely a reversal of
the previous jurisprudence on the matter decided in a litany of cases before People v.
Bariquit. 19
While it appears that at least ve (5) malefactors took part in the commission of the
crime, the evidence on record does not disclose that "more than three" persons were
armed, and robbery in "band" means "more than three armed malefactors united in the
commission of robbery." Nowhere in the records can we gather that more than three (3) of
the robbers were armed. Hence, "band" cannot be aggravating where no proof is adduced
that at least four (4) of the ve (5) perpetrators involved in this case were armed. In this
regard, we are quoting pertinent portions of Clementina Gimenez's testimony —
Q: While you were in your house do you still remember of any unusual
incident that happened?
A: Yes, sir.

Q: What was that incident about?

A: Armed persons entered our house.
Q: How many?
A: Three (3).
Q: You said that these 3 persons were armed, will you tell this Honorable
Court the kind of weapon or arms they were bringing with them at that
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time?
A: One person carrying a long firearm.

Q: How about the other two?

A: One person standing at the door carrying a long firearm and the two went
upstairs.
Q: Were they carrying weapons?
A: They have (sic) both of them were carrying short firearms. 20

On cross examination she further clarified —

Q: Where were you when you saw that the two accused Clarito Arizobal and
Erly Lignes got the money?
A: At the sala.

Q: When they ransacked your aparador you did not object?

A: They let us sit and warned us not to move.
Q: But you have not seen them armed with any firearm, is that correct?
A: They have.
Q: Who were armed with firearms?

A: Clarito Arizobal and Erly Lignes.

Q: What kind of firearm?
A: Short-arm.
Q: And where was the third person who was wearing mask at the time these
two accused Erly Lignes and Clarito Arizobal ransacked your aparador and
got the money?
A: At the door of our house. cTESIa

Q: What was he doing?

A: On guard.

Q: Was he armed?
A: Bringing a long gun, masked. 21

For her part, Erlinda Gimenez testified —

Q: Did you see who killed your husband?
A: My husband was brought towards a distance about 50 meters because it
could be seen from where I was and then I heard a burst of firearm
thereafter the one who brought him told me that he ran so that they have
(sic) to kill him.
Q: Who told you?
A: The one wearing mask.
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Q: Where were accused Clarito Arizobal and Erly Lignes at that time?
A: The two (2) took guard on Boboy Gimenez (referring to Francisco) and my
son.
Q: Were they armed?
A: Yes sir, short gun, sir.

Q: When your husband was brought by three of these five (5) persons, your
son and Francisco Gimenez were left behind?
A: Yes sir, because they were tied. 22

We likewise hold that the aggravating circumstance of nighttime did not attend the
commission of the crime. The fact that the offense was committed at 9:30 in the evening
does not su ce to sustain nocturnidad for, by itself, nighttime is not an aggravating
circumstance. 23 To be properly so considered, it must be shown that nocturnidad was
deliberately and intentionally sought by accused-appellants to help them realize their evil
intentions. 24 Nowhere can we infer from the records that the malefactors sought the
cover of darkness to facilitate the accomplishment of their devious design. On the
contrary, the locus criminis was well lighted and nighttime was merely an incidental
element to the whole drama.
First. The houses of the victims were adequately lighted by kerosene lamps when
the robbers entered and went about their looting spree. In People v. Pallarco 2 5 this Court
clarified this modifying circumstance thus—
Nor can the aggravating circumstance of nighttime be appreciated, for the
prosecution failed to demonstrate (a) that the malefactor particularly sought or
took advantage of the darkness to commit the offense, or (b) that nighttime
facilitated the commission of the crime. In any event, the prosecution presented
no evidence to establish the fact that nocturnidad attended the killing. Nighttime
cannot be considered if it is shown that the place was adequately lighted. In this
case, it was established that the place was su ciently illuminated by a kerosene
lamp.

Second. The robbers, particularly referring to accused-appellant and his co-accused,

lingered in the locus criminis and even conversed with their intended victims for an
appreciable period of time inside the well-lit houses. As Erlinda Gimenez testi ed, the
place where the victims were gunned down was adequately illuminated by the moonlight,
although for undisclosed reasons she did not see the actual shooting. 26
All these taken together belie the assumption that the culprits took advantage of the
intrinsic impunity afforded by the cover of darkness and made the same as an ally to
accomplish their nefarious plan. Nocturnity lures those who crave for blood to yield to their
baser impulses with the false courage borne out of the belief that their identity would not
be brought in the open. We do not discern any such intention in this case. aSECAD

We also note with approval the view of the trial court that the offenders did not
commit two (2) separate counts of robbery with homicide but only a delito continuado, as
the ransacking of the two (2) houses and the killing of the victims were not entirely
disconnected and distinct acts of depredation. They arose from a single criminal impulse
and intent, "there being unity of purpose and of right violated." 2 7
As to actual damages, it was proved that the robbers took the amount of P8,000.00
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from the family of the deceased Laurencio Gimenez and P1,000.00 from that of Jimmy
Gimenez. Their legal heirs must therefore be indemni ed for these losses. However, the
award of the trial court of P20,00.00 for moral damages and P30,000.00 for exemplary
damages must be modi ed to P50,000.00 and P20,000.00 for moral damages and
exemplary damages, respectively for the legal heirs of each victim.
The trial court correctly found accused-appellant and his co-accused Clarito
Arizobal guilty of the crime of robbery with homicide as de ned in Art. 294, par. (1), of The
Revised Penal Code. The prosecution has established beyond any scintilla of doubt
through the prosecution witnesses that Erly Lignes in conspiracy with Clarito Arizobal and
three (3) other unidenti ed persons used violence and intimidation against the members
of the two (2) Gimenez families in carrying out the robbery and on the occasion thereof
killed Laurencio and Jimmy Gimenez.
The special complex crime of robbery with homicide carries with it the penalty of
reclusion perpetua to death. In conformity with Art. 63, par. (1), of The Revised Penal Code,
when the crime is attended by an aggravating circumstance with no circumstance
mitigating it, the higher penalty shall be imposed.
Four (4) members of the Court are steadfast in their adherence to the view that RA
7659 is unconstitutional insofar as it prescribes the death penalty. However, they bow to
the majority opinion that the aforesaid law is constitutional and, therefore, the penalty
prescribed thereunder has to be imposed.
WHEREFORE, the Decision of the Regional Trial Court of Cataingan, Masbate, nding
accused-appellant ERLY LIGNES and accused CLARITO ARIZOBAL GUILTY of Robbery with
Homicide and imposing upon both of them the penalty of DEATH, is AFFIRMED with the
MODIFICATION that accused-appellant ERLY LIGNES and his co-accused CLARITO
ARIZOBAL (who is still at large) are ordered in addition: (a) to pay jointly and solidarily the
legal heirs of Laurencio Gimenez and Jimmy Gimenez P50,000.00 for civil indemnity,
another P50,000.00 for moral damages, and P20,000.00 for exemplary damages, for each
set of heirs; and, (b) to pay jointly and solidarily the legal heirs of Laurencio Gimenez
P8,000.00 and those of Jimmy Gimenez P1,000.00 representing their respective actual
damages.
In accordance with Sec. 25 of RA 7659 amending Art. 83 of The Revised Penal Code,
upon the nality of this Decision, let the records of the case be forwarded to His
Excellency, the President of the Philippines, for the possible exercise of his pardoning
power. Costs against both accused. TECIaH

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

Footnotes

1. See Information in Crim. Case No. 842, p. 1, Original Records.

2. See Information in Crim. Case No. 841, p. 1, id.

3. Id., p. 83.
4. TSN, 25 October 1995, p. 20.
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5. Id., p. 23.
6. TSN, 4 March 1997, p 5.
7. TSN, 25 October 1995, p. 4.
8. Id., pp. 10-11.
9. TSN, 18 March 1998, pp. 3-23.

10. Decision penned by Judge Henry B. Basilla, RTC-Br. 49, Cataingan, Masbate.
11. Rollo, p. 16.
12. Id. p. 19.
13. Id., pp. 59-63.
14. People v. Nang, G.R. No. 107799, 15 April 1998, 289 SCRA 16.
15. People v. Dinglasan, G.R. No. 101312, 28 January 1997, 267 SCRA 26.
16. People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250 SCRA 14.
17. People v. Pareja, G.R. No. 88043, 9 December 1996, 265 SCRA 429; People v. Feliciano,
G.R. No. 102078, 15 May 1996, 256 SCRA 706.

18. People v. Bariquit, G.R. No. 122733, 2 October 2000.

19. See Note 18.

20. TSN, 25 October 1995, p. 16.

21. TSN, 10 September 1996, p. 32.

22. TSN, 4 March 1997, p. 11.

23. People v. Bello, G.R. No. 109148, 4 December 1998, 299 SCRA 654.
24. People v. Caisip, G.R. No. 119757, 21 May 1998, 290 SCRA 451.
25. G.R. No. 119971, 26 March 1998, 288 SCRA 151.
26 TSN, 4 March 1997, p 17.

27. Rollo, p. 21.

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EN BANC

[G.R. No. L-40330. November 20, 1978.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. AMADO DANIEL alias

"AMADO ATO" , accused-appellant.

Eraulio D. Yaranon for appellant.

Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra
and Solicitor Rosalio A. de Leon for appellee.

DECISION

MUÑOZ PALMA , J : p

This case originated from the Court of First Instance of Baguio City by virtue of a
complaint led by 13-year old Margarita Paleng accusing Amado Daniel alias "Amado
Ato" of rape alleged to have been committed as follows:
"That on or about the 20th day of September, 1965, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the herein
accused, armed with a sharp instrument and by means of force and intimidation,
did then and there willfully, unlawfully and feloniously have carnal knowledge of
the undersigned complainant, against her will, and in her own room situated at
No. 25 Interior, Pinsao, Guisad, Baguio City.

"That in the commission of the crime, the aggravating circumstance that it

was committed in the dwelling of the offended party, the latter not having given
provocation for it, is present." (p. 1, CFI record).

The trial court, presided then by Hon. Feliciano Belmonte, after due trial rendered
its decision on May 30, 1966, nding the accused guilty and sentencing him to suffer
"not more than TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal and not
less than SIX (6) YEARS and ONE (1) DAY of prision mayor, and to pay the costs." 1
His motion for reconsideration and new trial having been denied, accused led a
notice of appeal; forthwith the case was forwarded to the Court of Appeals. LexLib

On September 23, 1974, the Court of Appeals through its Tenth Division rendered
a decision the dispositive portion of which follows:
"PREMISES CONSIDERED, We nd that the guilt of the accused Amado
Daniel has been proven beyond reasonable doubt, and he should accordingly
suffer the penalty for the crime herein charged.

"We nd, however, that the sentence imposed upon the accused in the
judgment appealed from is not in accordance with law.
"Republic Act No. 4111, which took effect on June 20, 1964, amended
Article 335 of the Revised Penal Code, providing that —

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'The crime of rape shall be punished by reclusion perpetua.

'Whenever the crime of rape is committed with the use of a deadly

weapon or by two or more persons, the penalty shall be reclusion perpetua
to death.'

"Under Section 17 of Chapter 11 of the Judiciary Act of 1948 (Republic Act

No. 296, as amended) —
'The Supreme Court shall have exclusive jurisdiction to review,
revise, reverse, modify or affirm on appeal, as the law or rules of court may
provide, final judgments and decrees of inferior courts as herein provided,
in —
(1) All criminal cases involving offenses for which the penalty
imposed is death or life imprisonment; . . . '

"WHEREFORE, We hereby certify this case to the Supreme Court for

appropriate further proceedings pursuant to law." 2

By virtue of the foregoing decision of the Court of Appeals the case was certi ed
to this Court and in a Resolution of March 6, 1975, the same was ordered docketed. 3
Preliminary question —
The certi cation of the case to Us poses a preliminary question which strikes at
the very root of a longstanding practice and procedure evoked for the last forty years
or so since the creation of the Court of Appeals. 4
Is the Supreme Court with jurisdiction to act on an appeal in a criminal case
where the offense is punishable by reclusion perpetua or death certi ed to it by the
Court of Appeals with ndings of facts and of the guilt of the accused, but without
imposing the penalty of reclusion perpetua or death on the appellant pursuant to Rule
124, Section 12, paragraph 2, of the Rules of Court? 5
Mr. Chief Justice Fred Ruiz Castro, joined by other Justices, expresses the view
that for this Court to acquire jurisdiction over the appeal, the decision before Us must
have imposed on the appellant the penalty either of reclusion perpetua or death as the
facts warranted. llcd

The rest of the Justices together with the writer of this Opinion, believe otherwise
and hold the view that the dispositive portion of the decision as written and rendered is
in accordance with the Constitution and the law, and vests jurisdiction on the Court to
act on the appeal.
A. In People v. Ramos, decided on November 28, 1917, 6 a case was certi ed
to this Court by the Court of Appeals without findings of facts and simply on the ground
that it was "on the opinion that the penalty that should be imposed in this case is
reclusion perpetua, as recommended by the Solicitor General, and not reclusion
temporal, as imposed by the lower court." The question arose as to the proper
procedure to be followed by the appellate court in certifying cases to this Court under
Section 145-K of the Revised Administrative Code as amended by Republic Act No. 52
which read:
"Wherever in any criminal case submitted to a division the said division
should be of the opinion that the penalty of death or life imprisonment should be
imposed, the said Court shall refrain from entering judgment thereon and shall
forthwith certify the case to the Supreme Court for nal determination, as if the
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case had been brought before it on appeal."

In disposing of the issue several matters came up which evoked different, and
We may say, strong reactions from the Justices then composing the Court, but for
brevity we shall not dwell on them. Simply stated, it was ruled that the Court of Appeals
was duty bound to make its ndings of facts to support its opinion that the penalty to
be imposed upon the appellant was either life imprisonment or death so as to bring the
case within the jurisdiction of this Court.
From the resolution written for the Court by then Mr. Chief Justice Manuel V.
Moran, We quote the following pertinent portions:
"The jurisdiction of this Court predicated upon the opinion of the Court of
Appeals, as provided in the above-quoted provision of the law, must of necessity
depend upon the correctness of that opinion. There is nothing in the law
precluding this Court from exercising its authority to pass upon such question
which concerns its own jurisdiction. And in order that this Court may exercise its
power of review, the Court of Appeals is bound to make in its order of certi cation
such ndings of facts as are necessary to support its conclusion that either life
imprisonment or death is the penalty to be imposed. This is indeed covered by
Rule 52, section 3, which provides that where a court to which an appeal has been
taken has no appellate jurisdiction over the case and it certi es the same to the
proper court, it must do so 'with a speci c and clear statement of the grounds
therefor.' The requirement of clear and speci c grounds is precisely a device to
prevent erroneous transmissions of jurisdiction from a lower to a superior court.
"Furthermore, the words 'shall refrain from entering judgment thereon'
appearing in the provision above-quoted, are a su cient indication that the Court
of Appeals, at the time of certifying the case to this Court, had already examined
the evidence and was ready to render judgment on the merits, but having found
from the facts established by proof that the penalty to be imposed is either death
or life imprisonment, instead of entering judgment thereon, it certi es the case to
the Supreme Court for nal determination. Since the certi cation is the only
ground for determining our jurisdiction, it must contain not only conclusions of
law but also ndings of fact, the latter being more important than the former for
they supply the real basis for determining jurisdiction. . . . .

"The instant case cannot be compared with cases coming directly from a
Court of First Instance wherein either life imprisonment or death penalty is
imposed, for in such cases, if we assume jurisdiction even where the judgment
appears to be erroneous on its face, it is because the Court of First Instance has
already exhausted its jurisdiction by rendering judgment on the merits containing
both ndings of fact and conclusions of law, and under such circumstance it is
more practical for the administration of the law that this Court should exercise its
appellate jurisdiction by examining the evidence and correcting all errors both of
fact and of law that might have been committed by the trial court. But here, the
Court of Appeals is refraining from rendering judgment on the merits and is
refusing to complete the exercise of appellate jurisdiction because it believes that
such jurisdiction belongs to the Supreme Court and thus, it proceeds to transfer
the case to this Court. It is in that transfer that we believe we may intervene in
order to prevent an erroneous transfer.

xxx xxx xxx

"Section 145-K of the Administrative Code is merely a method designed to
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make effective the appellate jurisdiction of both the Court of Appeals and this
Court, as de ned by law. According to the law of jurisdiction (section 138, Revised
Administrative Code, as amended by Commonwealth Acts Nos. 3 and 259),
offenses, for which the penalty imposed is death or life imprisonment, including
offenses arising from the same occurrence or committed on the same occasion,
come within the appellate jurisdiction of the Supreme Court, and the remaining
offenses fall within the appellate jurisdiction of the Court of Appeals. . . . .
"We are of the opinion and so hold, therefore, that in a case like this, the
Court of Appeals, in certifying it to this Court, must state its ndings of fact
necessary to support its conclusion that the penalty to be imposed is either life
imprisonment or death. While this Court will not review the ndings of fact, it will
pass upon the correctness of the legal conclusions derived therefrom. And if this
Court nds the conclusions to be correct, it will assume jurisdiction. If it nds
them to be wrong, the case will be returned to the Court of Appeals." (pp. 613-616,
supra, italics supplied)

In Ramos, the case was accepted because the Court considered that there was
substantial compliance with the law as the order of certi cation made reference to the
opinion and recommendation of the Solicitor General whose brief contained su cient
ndings of fact to warrant the conclusion that life imprisonment should be imposed
upon the appellant. Justices Paras, Feria, Pablo, Hilado and Briones concurred in the
Resolution. LLpr

Justice Gregorio Perfecto in a separate opinion concurred with the principle that
the Court of Appeals is bound to make its ndings of fact and study the evidence so as
to determine whether the appellant is guilty or not, but dissented from that portion of
the Resolution which accepted the case as he was of the opinion that the case should
have been remanded to the Court of Appeals. 7
Justice Pedro Tuason wrote a separate opinion and dissented from the majority
insofar as it held that it was necessary for the Court of Appeals or a division thereof to
state the reasons for its opinion that death penalty or life imprisonment should be
imposed. He particularly dissented from statements that if this Court found the
conclusions of the Court of Appeals to be wrong, the case should be returned to the
Court of Appeals for further proceedings. According to Justice Tuason when a case is
certi ed to this Court it is placed, by force of the Court of Appeals' opinion, within the
jurisdiction of the Supreme Court for the latter to decide the appeal on the merits;
ndings of fact of the Court of Appeals are neither essential nor necessary. Justice
Tuason was joined in his dissent by Justice Cesar Bengzon who later became Chief
Justice of this Court and Justice Sabino Padilla. 8
B. The theory is now advanced that We go one step further than that ruled in
Ramos — that is, for the Court of Appeals not only to make its ndings of fact and
nding of guilt, but also to impose the penalty either of reclusion perpetua or death as
the facts warrant in order that We may exercise Our appellate jurisdiction.
We believe that such a judicial ruling will be violence to the letter and spirit of the
law which confers on the Supreme Court the exclusive prerogative to review on appeal
and impose the corresponding penalty in criminal cases where the offense is
punishable by reclusion perpetua or death.
Both the 1935 and the 1973 Constitutions vest upon the Supreme Court
appellate jurisdiction, in "(A)ll criminal cases in which the penalty imposed is death or
life imprisonment." 9 This jurisdiction is constitutional; the Supreme Court may not be
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deprived thereof by, Congress then, now the National Assembly. 1 0
Section 17 of the Judiciary Act 1948 as amended in turn provides that the
foregoing appellate jurisdiction of the Supreme Court is exclusive.
Basically therefore, the objection to this new theory is one of jurisdiction - the
lack of jurisdiction of the Court of Appeals to impose the penalty of reclusion perpetua
or death.
The present controversy springs from the construction given to the second
paragraph of Sec. 12, Rule 124, Rules of Court 1 1 more particularly to the use of the
phrases "should be imposed" and "shall refrain from entering judgment", viz:
"xxx xxx xxx
"Whenever in any criminal case submitted to a division the said division
should be of the opinion that the penalty of death or life imprisonment should be
imposed, the said court shall refrain from entering judgment thereon and shall
forthwith certify the case to the Supreme Court for nal determination, as if the
case had been brought before it on appeal." (emphasis Ours)

As we construe it, the Rule cited does not charge the appellate court with the
duty of imposing the penalty of reclusion perpetua or death. All that the Rule requires is
that should the Court of Appeals be of the opinion that death or life imprisonment
should be imposed, it "shall refrain from entering judgment thereon. . ."
The clause "entering judgment" means "rendering judgment". Thus, the Court of
Appeals shall refrain from rendering judgment if and when it is of the opinion that
reclusion perpetua or death is the proper penalty for the crime committed. This can be
the only logical interpretation considering that the Court of Appeals is without
jurisdiction to impose the penalties concerned. The phrase "entering judgment" is not to
be equated with an "entry of judgment" as the latter is understood in Rule 36 in relation
to Section 8, Rule 121 and Section 16, Rule 124, Rules of Court. "Entry of judgment"
presupposes a nal judgment — nal in the sense that no appeal was taken from the
decision of the trial or appellate court within the reglementary period. A judgment in a
criminal case becomes nal after the lapse of the period for perfecting an appeal, or
when the sentence has been partially or totally satis ed or served, or the defendant has
expressly waived in writing his right to appeal. 1 2 It is only then that there is a judgment
which is to be entered or recorded in the book of entries of judgments. 1 3
It would be incongruous or absurd to state that Section 12, second paragraph,
Rule 124 enjoins the Court of Appeals from "entering judgment" when there is no
judgment to be entered.
But then the argument is advanced — what is there to be reviewed by the
Supreme Court when the decision being certi ed contains no penalty or sentence, as
distinguished from appeals from the Court of First Instance where there is a complete
judgment to be passed upon. The answer is simple. Section 12 itself states that the
case is for nal determination by the Supreme Court as if the case had been brought
before it on appeal. Hence, based on the ndings of facts of the appellate court which
as a rule are conclusive and binding on Us, this Court "will pass upon the correctness of
the legal conclusions derived therefrom" (People v. Ramos, supra) and impose the
correct penalty for the offense committed. LexLib

We realize that had Section 12, Rule 124 used the phrase "shall refrain from
rendering judgment," there would be no cause for any ambiguity. We can only assume
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that the intent of the Ruiz was so clear to the Court when it drafted the Revised Rules of
Court that it did not envision a possible contrary or adverse interpretation or ambiguity
in its implementation under the phraseology used. It is incumbent upon Us to construe
the Rule in the spirit and intent it was conceived and in harmony with pertinent laws and
jurisprudence.
On the merits of the appeal —
1. Generally in a case of this nature, the evidence of the prosecution consists
solely of the testimony of the offended party. Here We have the declaration of the
victim, who at the time of the incident was a little less than 13 years of age, on the basis
of which the trial court found the charge of rape duly established. The happenings are
briefly summarized in the People's brief as follows:
"The offended party in this case is Margarita Paleng who was born on
November 20, 1952 (p. 3, t.s.n., Manipon). She is a native of Balangabang,
Tublay, Mountain Province (pp. 3, 12, id.) At the time of the incident in question
on September 20, 1965, complainant was temporarily boarding at a house
located at Pinsao, Guisad, Baguio City, as she was then a rst year high school
student at the Baguio Eastern High School (pp. 3, 12, 20, id.; p. 36, Estigoy).
"On September 20, 1965, at about three o'clock in the afternoon, she had
just arrived in the City from Tublay in a Dangwa bus (p. 3, Manipon). Because it
was then raining and the bus was parked several meters away from the bus
station, she waited inside the bus (pp. 3, 22, id.). After about three minutes of
waiting, the accused came and started molesting her by inquiring her name and
getting hold of her bag (pp. 4, 22-24, id.). But she did not allow him to hold her
bag (p. 24, id.). She called the attention of the bus driver and the conductor about
the actuation of the accused, but it seemed that the former were also afraid of
him (pp. 24-25, id.).
"Despite the rain, she left the bus and went to ride in a jeep parked some
100 meters away (pp. 4, 25, id.). The accused closely followed her (p. 4, id.). When
the jeep started to go, the accused also rode and sat beside her (p. 5, id.).
"When the jeep reached Guisad, she alighted on the road but she still had
to negotiate a distance of ten meters (p. 5, id.). The accused also alighted and
again he tried to carry her bag (p. 5, id.). Although he was not allowed to carry her
bag, he was adamant in following her (p. 5, id.).
"Reaching her boarding house, she opened the door and was about to
close it when the accused dashed in and closed the door behind him (pp. 31-32,
id.). When she entered her room, the accused went in (p. 7, id.). He pulled a dagger
eight inches long and threatened her: 'If you will talk, I will kill you'. (p. 7, id.).
Margarita was stunned into silence because of her fear (p. 7, id.). Thereupon, the
accused held her hair with his left hand and forced her to lie down in bed (p. 7, id,)
He also placed his left hand with a handkerchief in Margarita's mouth, at the
same time holding the dagger and her neck with his right hand (pp. 7-8, id.). She
was forcibly made to lie down and, at this moment, the accused removed the
buttons of his pants (p. 8, id.). He then put down the dagger on the bed (p. 8, id.).
Her attempts to extricate herself from the accused was to no avail as she was
only 4 ft. and 8 inches tall and weighed about 95 to 100 pounds (p. 35, id.) while
the accused was 5 ft. and 7 inches tall and weighed about 126 pounds (pp. 8, 59,
id.). He then held his penis (pp. 8, 36, id), used his thigh to separate the legs of
Margarita (p. 38, id.), tried, but failed, to remove her panty (p. 36, id.). He
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nonetheless guided his penis and inserted it inside the vagina of the complainant
after prying open the part of her panty covering her private parts (pp. 9, 36, id.).
Then he succeeded in having carnal knowledge of the offended party (p. 9, id.).
Margarita lost consciousness. When she recovered, he was already gone (p. 9,
id.).
"The following morning, her father came to visit her. She con ded to him
the terrible misfortune which befell her (pp. 9-10, id.). She was immediately
brought to the Baguio General Hospital where she was examined (p. 10, id.). Then
they proceeded to the Police Department. The Chief of Police accompanied them
to the Health Center where she was again examined by Dr. Perfecto O. Micu who
thereafter submitted his medical report (Exh. C; p. 3, rec.; pp. 11, 14-16, id.).
Margarita and her father gave their respective statements before the police
authorities (Exh. B, pp. 5-6, rec.; p. 11, t.s.n.). She signed her criminal complaint
prepared by the Fiscal's O ce of Baguio (Exh. A; p. 1, rec.; p. 11, t.s.n.)." (pp. 2-4,
Brief at p. 83, rollo).

The City Medico-Legal O cer, Dr. Perfecto Micu, was called to the witness stand
and he testi ed on the physical examination conducted on the person of Margarita
Paleng on September 23, 1965 and his ndings as contained in the report were as
follows: cdphil

"1. Hymen — circular-stellate type with healing lacerations at 6:00,

8:00, 9:00 and 11:00 o'clock positions in the face of a clock.

"2. Contusions at the base of the hymen at 3:00 & 9:00 o'clock regions.
"3. Vaginal Orifice — tight and hardly admits 2 fingers.
"4. Vaginal wall-tight and vaginal folds are prominent.
"5. Vaginal smear — negative for spermatozoa and for gram negative
intra or extra-cellular diplococci." (Exh. "C", p. 3, CFI record)

Dr. Micu concluded that "de oration was recent". He further declared that the condition
of the hymen revealed that Margarita Paleng was a virgin before the incident
complained of, and that the number of lacerations and contusions at the base of the
hymen indicated the degree of force exerted to effect the sexual act. 1 4
For his defense, appellant claimed that he and Margarita were acquainted with
each other since 1963, and there were occasions when they rode together in a bus; that
the incident of September 20, 1965 inside the room of Margarita was with the latter's
consent, and in fact it was the second time he had carnal knowledge with her, the rst
time having occurred inside a shack; that he promised Margarita that he would marry
her, but to his surprise, she filed the instant complaint against him. 1 5
2. The issue being one of credibility, We nd no cogent reasons for
discarding the ndings of facts of the trial court which were sustained by the Court of
Appeals after the latter had examined the evidence as a result of which it certi ed the
case to this Court.
Appellant assails the veracity of the testimony of the complainant. But what
possible motive could a thirteen-year old girl barely in her teens have in fabricating a
story that could only bring down on her and her family shame and humiliation and make
her an object of gossip and curiosity among her classmates and the people of her
hometown. It cannot be denied that a public trial involving a crime of this nature
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subjects the victim to what can be a harrowing experience of submitting to a physical
examination of her body, an investigation by police authorities, appearance in court for
the hearing where she has to unravel lewd and hideous details of a painful event which
she would prefer to forget and leave it unknown to others. If Margarita did forego all
these and preferred to face the cruel realities of the situation it was due to her simple
and natural instincts of speaking out the truth.
The insinuation that this complaint was led because appellant had not married
the girl although he promised to marry her, is preposterous. On September 20, 1965,
Margarita was only twelve years and ten months old and was not of marriageable age,
hence, marriage was a legal impossibility. And as regards appellant's testimony that the
complaint was instigated by the Chief of Police of Tublay who was Margarita's uncle,
the trial court did not give credit to such a declaration.
Counsel for appellant stresses that notwithstanding that Margarita had the
opportunity to ask for help or attract the attention of other people before she reached
her boarding house, she failed to do so. According to counsel there were people at the
Dangwa station, in the busy streets, in the market place, in the jeepney parking place
where the girl took a jeep to proceed to the boarding house, and in the neighboring
houses the closest of which was about 5 meters away, but no attempt was ever made
by complainant to seek help so as to prevent appellant from molesting her. 1 6
Appellant's contention presupposes that Margarita was well aware all the time
from the moment she saw the appellant inside the bus that the latter had intentions of
abusing or raping her. All that the appellant did inside the bus was to hold her bag and
she called the attention of the driver and the conductor to the impertinence of appellant
but the two did not do anything about it. 1 7 And when Margarita walked from the bus to
the jeepney station, although she saw appellant walking behind her she did not suspect
that he was following her. To a question propounded by His Honor whether she
suspected that appellant was following her, Margarita answered: "No sir, I did not
suspect." 1 8 All along Margarita could not call the attention of the people in the street or
shout for help inasmuch as at that particular moment the appellant was not doing
anything against her. And when Margarita reached the boarding house there were no
persons around 1 9 and in fact she went straight to her room and it was at that particular
moment when appellant barged into the room before she could close the door. In short,
the poor girl was simply taken by surprise by the forced entrance of appellant who
immediately took out an 8-inch long dagger and said "If you will talk I will kill you."
Persons can have different reactions to a situation like that — some may
manifest an aggressive or violent attitude of confronting a molesting or impertinent
fellow while others, like 12-year old Margarita, may assume a silent, fearful attitude.
Appellant's counsel also claims that Margarita did not offer any resistance to the
acts of the accused at the time the latter was allegedly forcing himself on her as shown
by the medical ndings that there were no signs of extra-genital injuries on the girl's
body, and no blood stains on her dress and underwear. cdrep

The foregoing arguments are inadequate to weaken and destroy the veracity of
Margarita's straightforward and positive declaration as to how appellant, a 22-year old
farmer in the prime of his manhood, weighing 126 lbs., and ve feet and six inches tall,
2 0 overpowered her and succeeded in accomplishing the sexual act despite her
resistance. Margarita was less than 13 years of age, was 4'8" in height, and weighed
around 95 lbs. 2 1
In a crime of rape, force need not be irresistible; "it need but be present, and so
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long as it brings about the desired result, all consideration of whether it was more or
less irresistible, is beside the point." 2 2
All that is necessary is that the force used by the accused is su cient for him to
consummate his evil purpose. In U.S. v. Villarosa, 1905, there was a similar situation. A
12 year old girl was sexually abused in the woods by a man of superior physical
strength. In holding the accused Villarosa guilty of rape the Court held:
"It is a doctrine well established by the courts that in order to consider the
existence of the crime of rape it is not necessary that the force employed in
accomplishing it be so great or of such character as could not be resisted; it is
only necessary that the force used by the guilty party be su cient to
consummate the purpose which he had in view." (4 Phil. 434, 437 citing
Judgment May 14, 1878, Supreme Court of Spain. The Villarosa doctrine has
been followed in numerous cases involving the crime of rape and one of the latest
is People v. Equec, 1977, per Justice Enrique Fernando, 70 SCRA 665.).

And as stated in People v. Savellano, per Justice Ramon Aquino, the force or
violence necessary in rape is naturally a relative term, depending on the age, size, and
strength of the parties and their relation to each other. 2 3
Rape is likewise committed when intimidation is used on the victim and the latter
submits herself against her will because of fear for her life and personal safety. In this
case of Margarita Paleng, appellant was armed with a dagger and with it threatened to
kill the girl if she would talk or scream for help. Her fear naturally weakened whatever
resistance Margarita could muster at the time and as a result appellant was able to
consummate his coitus on the victim. 2 4
One last point raised by the able counsel of appellant, Atty. Braulio D. Yaranon,
who at the time of the trial in 1965 was the Vice-Mayor of Baguio City, was that
appellant voluntarily submitted to a lie detector test with the National Bureau of
Investigation and the report of the lie detector examiner is in appellant's favor, that is,
the latter was telling the truth on the questions propounded to him one of which was
whether he forced Margarita Paleng into having sexual intercourse with him and the
reply was "No". 2 5
On this matter We nd the trial Judge's observations and conclusions
meritorious and We quote from his decision the following:
"As to the N.B.I. lie detector test report, the Court does not put much faith
and credit on it. It is well known that the same is not conclusive. Its e cacy
depends upon the time, place and circumstances when taken and the nature of
the subject. If subject is hard and the circumstances, as in this instant, were not
conducive to affect the subject emotionally, the test will fail. The subject had
nothing more to fear because the trial was over. He was not confronted by the
victim or other persons whom he had a reason to fear. Naturally, his reaction to
the questions propounded was normal and unaffected and the apparatus could
not detect it." (pp. 172-173, CFI record)

To conclude, the crime committed by the appellant is rape with the use of a
deadly weapon with the aggravating circumstance of having been committed in the
dwelling of the offended party. Although Margarita was merely renting a bedspace in a
boarding house, her room constituted for all intents and purposes a "dwelling" as the
term is used in Article 14(3), Revised Penal Code. It is not necessary, under the law, that
the victim owns the place where he lives or dwells. Be he a lessee, a boarder, or a bed-
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spacer, the place is his home the sanctity of which the law seeks to protect and uphold.
Hence, the correct penalty for the crime committed is death pursuant to Article
335 of the Revised Penal Code as amended. However, for lack of the necessary number
of votes, the penalty next lower in degree is to be applied.
PREMISES CONSIDERED, We a rm the judgment of conviction of Amado Daniel
for the crime of rape as charged, and We sentence him to suffer the penalty of reclusion
perpetua and order him to indemnify Margarita Paleng by way of moral damages in the
amount of Twelve Thousand Pesos (P12,000.00) and pay the costs. LibLex

Decision Modified.
SO ORDERED.
Teehankee, J., concurs.
Concepcion Jr. and Guerrero, JJ., on the merits.
Castro, C.J., takes no part on the merits, also les a separate opinion on the
preliminary question, concurred in by Barredo, Makasiar, Antonio, Concepcion, Santos,
Fernandez and Guerrero, JJ.
Barredo, J., concurs in the judgment of conviction but I join the Chief Justice as
regards the preliminary question.
Antonio, J., concurs with the Chief Justice on the preliminary question, and with
Justice Palma on the judgment affirming the conviction of the accused.
Santos, J., concurs with the judgment on the merits of the appeal but joins the
Chief Justice on the preliminary question.
Fernandez, J., took no part on the merits.
Fernando, J., took no part.

Separate Opinions
AQUINO , J., concurring:

The phrase "shall refrain from entering judgment thereon" found in section 12 of
Rule 124 and in section 34 of the Judiciary Law means that the Court of Appeals should
not decide the case. The Court of Appeals has been certifying to this Court criminal
cases, wherein the imposable penalty is death or reclusion perpetua, without rendering
any judgment but merely expressing its opinion that the penalty imposed by the trial
court is erroneous and that the imposable penalty is death or reclusion perpetua.
Invariably, this Court accepted those cases and decided the same. This Court's
jurisdiction in criminal cases, as de ned in the Constitution, cannot be diminished but it
can be enlarged.
Appealed criminal cases may be divided into three classes: (1) those wherein the
lower court imposed the penalty of death or reclusion perpetua and which are within
this Court's exclusive appellate jurisdiction; (2) criminal cases wherein the trial court
imposed reclusion temporal or a lesser penalty and which fall within the appellate
jurisdiction of the Court of Appeals, and (3) criminal cases wherein the trial court
imposed a penalty of reclusion temporal or a lesser penalty but a Division of the Court
of Appeals, while in the process of deciding the case, comes to the conclusion that the
imposable penalty is death or reclusion perpetua. That third class of criminal cases
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should be elevated to this Court "for final determination".
Reclusion perpetua was properly imposed in this case upon the appellant who is
a pedophiliac.

CASTRO, C.J., separate opinion:

1.
The preliminary issue at bar is: What is the correct course of action that the Court
of Appeals should take when, in a criminal case properly appealed to it, that court
determines that the penalty of death or reclusion perpetua (life imprisonment) should
be imposed instead of the lesser penalty imposed by the court a quo? Should it refrain
from rendering judgment and forthwith certify the case to the Supreme Court? Or
should it render judgment imposing what it considers as the proper penalty (either life
imprisonment or death) but refrain from entering judgment and thereafter certify the
case to the Supreme Court?
At the center of scrutiny is the pertinent provision of section 34 of the Judiciary
Act of 1948, as amended, and the identical statement in the second paragraph of
section 12 of Rule 124 of the Rules of Court, both of which read:
"Whenever in any criminal case submitted to a division [of the Court of
Appeals] the said division should be of the opinion that the penalty of death or life
imprisonment should be imposed, the said court shall refrain from entering
judgment thereon and shall forthwith certify the case to the Supreme Court for
final determination, as if the case had been brought before it on appeal."

Justices Claudio Teehankee, Cecilia Muñoz Palma and Ramon C. Aquino interpret
the phrase "entering judgment" in the inhibitory clause "shall refrain from entering
judgment" to mean "rendering judgment" or "pronouncing judgment," arguing that "[t]his
can be the only logical interpretation considering that the Court of Appeals is without
jurisdiction" to impose the penalties of death and life imprisonment. They thus opt to
maintain the present practice 1 of requiring no more than a forwarding certi cation
(embodying ndings of fact supporting the opinion that the penalty of death or life
imprisonment should be imposed) by the Court of Appeals for the purpose of placing
such case within the jurisdiction of the Supreme Court. LLjur

For the reasons hereunder stated, we consider their interpretation unwarranted

and therefore reject the conclusion that it leads to.
2.
Section 34 of the amended Judiciary Act and the second paragraph of section 12
of Rule 124 of the Rules of Court must be construed in the light of the unequivocal
phraseology of paragraph (d), subsection (2), section 5 of Article X of the Constitution,
which states:
"Sec. 5. The Supreme Court shall have the following powers:

"xxx xxx xxx

"(2) Review and revise, reverse, modify or a rm on appeal or certiorari,
as the law or the Rules of Court may provide, nal judgments and decrees of
inferiors courts in —

"xxx xxx xxx

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"(d) All criminal cases in which the penalty imposed is death or life
imprisonment.""

Varying the language of this provision only to the extent necessary to carry out its
intention, the rst subdivision of the third paragraph of section 17 of the Judiciary Act
made exclusive the appellate jurisdiction of the Supreme Court, in the following words:
"The Supreme Court shall have exclusive jurisdiction to review, revise,
reverse, modify or a rm on appeal as the law or rules of court may provide, nal
judgments and decrees of inferior courts as herein provided, in —

"(1) All criminal cases involving offenses for which the penalty
imposed is death or life imprisonment; . . ."

The constitutional mandate, given due statutory acknowledgment, sets forth the
pertinent appellate jurisdiction of the Supreme Court. We accord capital signi cance to
the phrases " nal judgments and decrees of inferior courts" and "the penalty imposed."
These phrases are crystal-clear. Read together with the remainder of the provision, they
state in precise and unmistakable terms the sole intended inescapable meaning that
the Supreme Court shall have appellate jurisdiction over nal judgments of inferior
courts in criminal cases in which the penalty imposed is death or life imprisonment. No
hermeneutic expertise or exercise can validly fashion some other meaning or intention.
3.
The constitutionally determined nature of the criminal cases falling within the
periphery of the appellate jurisdiction of the Supreme Court xes our perspective,
de nes and delimits our judicial prerogative in the interpretation of section 34 of the
Judiciary Act, and dictates the manner in which the law in question should be read and
made operative.
This being so, the clause enjoining the Court of Appeals to "refrain from entering
judgment" wherever it "should be of the opinion that the penalty of death or life
imprisonment should be imposed" cannot validly be interpreted as a bar to that
appellate court's "rendering judgment." If the meaning given to the law by the minority
should prevail and the case is forwarded, as this case before us was, to the Supreme
Court on a bare certi cation by the Court of Appeals, then we have the unacceptable
happenstance of an ordinary legislative act upstaging the fundamental law, since,
plainly, the Supreme Court will be constrained to exercise its power to "review, revise,
reverse, modify or a rm on appeal" in criminal cases where NO " nal judgment" in
which "the penalty imposed is death or life imprisonment" has been rendered or
pronounced.
The minority view would thus result not only in an unconstitutional imposition on
the Supreme Court of assumption of jurisdiction over a case that is beyond its original
appellate competence but would also compel abandonment by the Court of Appeals of
appellate jurisdiction legally and duly vested in and acquired by it. cdphil

4.
Because sec. 34 of the Judiciary Act does not and cannot have primacy or
ascendancy over the Constitution, we assert that the Court of appeals is legally
empowered to impose the penalties of death and life imprisonment. Four basic and
compelling considerations underlie our view.
First: There is no law — no law at all — that states such prohibition in
categorical terms. The minority view rests solely on the strained interpretation foisted
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on the very law under consideration — and this interpretation, as we have said, is entirely
unwarranted.
Second: In the case at hand, the Court of appeals duly and legally assumed
appellate jurisdiction over the accused Amado Daniel's appeal from the decision of the
Court of First Instance of Baguio sentencing him to suffer a penalty less than life
imprisonment. This cannot be debated since section 29 of the Judiciary Act speci cally
places such appeal within the Court of Appeals' jurisdictional ambit with the statement
that —
"The Court of Appeals shall have exclusive appellate jurisdiction over all
cases, actions, and proceedings, not enumerated in section seventeen of this Act,
properly brought to it."

Thus, absent any constitutional or legal constraints, the Court of Appeals should have
rendered the proper judgment in the case. For, verily, judicial jurisdiction is "the power
with which judges are invested for administering justice — that is, for trying civil or
criminal cases, or both, and deciding them and rendering judgment. . . ." 2 (emphasis
supplied)
Third: Harking back to the Constitution, the Court of Appeals, by
unmistakable constitutional categorization, is an "inferior court. " And it is its judgments
as such inferior court which, so the Constitution plainly states, are the subject of the
Supreme Court's plenary power of review, revision, reversal, modification or affirmance.
Fourth: Absurdity and incongruity should not be read into the law so as to
support the view that a panel of three Justices of the Court of Appeals is denied the
power to impose the penalties of life imprisonment and death at the same time that
such power is recognized in a single judge of a lower court of admittedly lesser
category.
5.
The resulting conclusion that the Court of Appeals must impose the proper
penalty does not justify the apprehension that the Supreme Court will be hampered in
the exercise of its jurisdiction because the ndings of fact made by the inferior
appellate court "will have to be respected." This stated procedural practice has never
been honored in the absolute. The ultimate function of the Supreme Court is to render
justice. And we need not elaborate on or belabor the numerous occasions when, to
attain this objective, the Court shunted aside technicalities to bare wide open the
controversy and inquire into each and every aspect, be it legal or factual or a mixture of
both.
And this is one perfect instance where the avowed ends of justice must override
practice and procedure, for, no less than human life is at stake. And this would not be a
novelty. When a trial court's judgment imposing the death penalty is elevated to this
Court en consulta,we strip the case into minutiae: fact by fact, detail by detail, facet by
facet. We see no reason why, when a decision imposing the penalty of death or life
imprisonment is rendered by the Court of Appeals, the same manner of meticulous
inquiry should not be resorted to by the Supreme Court. A sentence imposing death or
life imprisonment is of the self-same gravity, whichever is the sentencing tribunal. 3
6.
It is rather obvious that the phrase "entering judgment" is completely disparate
from the term "rendering judgment." There is no need to perambulate and meander the
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provisions of sections 1 and 2 of Rule 36 of the Rules of court need merely be read to
perceive the strikingly sharp antithesis between the two phrases. These sections read:
LibLex

"Section 1. Rendition of judgments. — All judgments determining the

merits of cases shall be in writing personally and directly prepared by the judge,
stating clearly and distinctly the facts and the law on which it [sic] is based,
signed by him, and filed with the clerk of the court.

"Section 2. Entry of judgments and orders. — If no appeal or motion for

new trial is led within the time provided in these rules, the judgment or order
shall be entered by the clerk. The recording of the judgment or order in the book of
entries of judgments shall constitute its entry. The record shall contain the
dispositive part of the judgment or order and shall be signed by the clerk, with a
certificate that such judgment or order has become final and executory."

The word "enter" (which undeniably is the root of "entering") "with reference to
judgments has acquired a de nite meaning in our procedure. There simply exists no
ambiguity to warrant embroiled interpretation. We need not hammer out meaning from
the word 'entered.' It is there. Section 2, Rule 36 chisels out the legal import of the
word." 4 To repeat and stress the Rule, "[t]he recording of the judgment or order in the
book of entries of judgments shall constitute its entry." Upon the other hand, the
rendition of judgment is the judicial act of the writing by the judge of the decision and
the filing thereof with the clerk of court. 5
Such being the precise acceptations of the terms "entering judgment" and
"rendering judgment," we see no cogent reason why our indisputably learned lawmakers
should have written in the former when they meant the latter. If, as the minority would
have it, the intention was just that, why then has not section 34 of the Judiciary Act been
accordingly amended, considering that the said Act has been amended no less than
ninety (90) times 6 since its enactment thirty years ago in 1948?
The conclusion is thus ineluctable that section 34 of the Judiciary Act means
exactly what it says. (And its intendment cannot and should not be altered through the
expedient of palpably tortuous and torturous statutory interpretation.) This rightly
projects the limited character of the said section — a procedural device designed to
effect and make effective the jurisdictions of both the Supreme Court and the Court of
Appeals. Read as written, this section neither imposes nor curtails constitutionally and
legally established jurisdictions. The Court of Appeals can and must render a decision
and impose the proper penalty of death or life imprisonment, and, to effect the
jurisdiction of the Supreme Court, refrain from entering its judgment, and forthwith
certify the case to the Supreme Court.
7.
Aside from according the respect that is due to the Constitution and setting
aright the import of section 34 of the Judiciary Act, our reading of the law will obviate
unnecessary, pointless and time-wasting shuttling of criminal cases between the
Supreme Court and the Court of Appeals. We advert to that portion of the Ramos 7
decision, cited with approval by Justice Muñoz Palma, which states:
"We are of the opinion and so hold, therefore, that in a case like this, the
Court of Appeals, in certifying it to this Court, must state its ndings of fact
necessary to support its conclusion that the penalty to be imposed is either life
imprisonment or death. While this Court will not review the ndings of fact, it will
pass upon the correctness of the legal conclusions derived therefrom. And if this
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Court nds the conclusions to be correct, it will assume jurisdiction. If it nds
them to be wrong, the case will be returned to the Court of Appeals." (emphasis
supplied)

We particularly and especially object to the return of the case to the Court of
Appeals if the Supreme Court " nds" the legal conclusions in the certi cation "to be
wrong." This incident will never come to pass if section 34 is correctly construed — that
is, as we construe it — for, the Supreme Court will acquire jurisdiction over the case
from the very inception and can, without bothering the Court of Appeals which has fully
completed the exercise of its jurisdiction, do justice in the case.
8.
ACCORDINGLY, this Court directs that, henceforth, should the Court of Appeals
be of the opinion that the penalty of death or reclusion perpetua (life imprisonment)
should be imposed in any criminal case appealed to it where the penalty imposed by
the trial court is less than reclusion perpetua, the said Court, with a comprehensive
written analysis of the evidence and discussion of the law involved, render judgment
expressly and explicitly imposing the penalty of either death or reclusion perpetua as
the circumstances warrant, refrain from entering judgment, and forthwith certify the
case and elevate the entire record thereof to this Court for review.
Barredo, Makasiar, Antonio, Concepcion Jr., Santos and Fernandez, JJ., concur.

Footnotes

1. p. 173, CFI record.

2. The Tenth Division was composed at the time of Justices Ramon C. Fernandez, Ricardo
C. Puno, and Sixto A. Domondon, with Justice Puno as the ponente, pp. 107-108, of rollo.
3. p. 127, ibid.

4. The Court of Appeals was organized under Commonwealth Act No. 3. Abolished in 1945
under Executive Order No. 37 issued by the President of the Philippines, the appellate
court was recreated under R.A. No. 52 upon the inauguration of the Philippine Republic.
See Moran on the Rules of Court, 1970 Ed., Vol. 1, p. 14.

5. Formerly 145-K, Revised Administrative Code, later adopted in Section 34, RA 296,
otherwise known as the Judiciary Act of 1948.
6. 79 Phil. 612.

7. pp. 617-619, ibid.

8. ibid., pp. 620-629.

9. Art. VIII, Sec. 2(4), 1935 Constitution; Art. X, Sec. 5, subsec. 2(d), 1973 Constitution.

10. Art. VIII, Sec. 1, 1935 Constitution; Art. X, Sec. 1, 1973 Constitution.
11. formerly 145-K Revised Administrative Code and Sec. 34, Judiciary Act of 1948.

12. Section 7, Rule 120, Rules of Court.

13. Section 2, Rule 36, ibid.

14. tsn, Nov. 26, 1965, pp. 14-16.
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15. tsn, December 23, 1965, pp. 43-57.
16. pp. 18-19, Appellant's brief.

17. tsn December 9, 1965, pp. 24-25.

18. pp. 25-27, ibid.

19. pp. 30-31, ibid.

20. tsn. December 23, 1965, p. 59.

21. tsn. December 9, 1965, p. 35.

22. Decision of Supreme Court of Spain, May 14, 1878, 5 Viada, 5th ed., page 224, pt. 8,
cited in People v. Momo, 1931, 56 Phil. 86, 87.
23. 57 SCRA 320, 328.

24. See People v. Garcines, 1974, 57 SCRA 653.

25. See pp. 165-166, CFI record.

CASTRO, C.J., concurring:

1. People vs. Ramos, 79 Phil. 612.

2. Conchada vs. Director of Prisons, 31 Phil. 95, quoting Escriche, Diccionario de

Legislacion y Jurisprudencia, Vol. 3, p. 743, ed. 1875.
3. See U.S. vs. Laguna, 17 Phil. 532: "The requirement that the Supreme Court pass upon a
case in which capital punishment has been imposed by the sentence of the trial court is
one having for its object. . . the protection of the accused. Having received the highest
penalty which the law imposes, he is entitled under that law to have the sentence and all
the facts and circumstances upon which it is founded placed before the highest tribunal
of the land to the end that its justice and legality may be clearly and conclusively
determined."

4. Dirige vs. Biranya, 17 SCRA 840.

5. People vs. Soria, 22 SCRA 948; Ago vs. CA, 6 SCRA 530; 49 C.J.S. p. 222.

6. The Judiciary Act of 1948 (RA 296) was amended by Republic Acts Nos. 431, 643, 644,
843, 859, 1186, 1404, 1605, 1914, 1963, 1969, 2613, 2682, 2696, 2718, 2875, 3067, 3084,
3086, 3087, 3090, 3114, 3327, 3599, 3632, 3749, 3828, 4057, 4134, 4235, 4322, 4533,
4644, 4728, 4769, 4798, 4814, 4821, 4833, 4838, 4892, 5052, 5064, 5067, 5075, 5084,
5103, 5107, 5116, 5126, 5129, 5135, 5140, 5147, 5204, 5277, 5296, 5341, 5382, 5389,
5433, 5440, 5468, 5479, 5675, 6031, 6092, 6157, 6159, 6263, 6264, 6439, 6445, and
6546, and by Presidential Decrees Nos. 204, 289, 363, 411, 411-A, 506, 516, 537, 722,
723, 827, 974, 1130, 1439, 1482, and 1600.

7. 79 Phil. 612, at p. 616.

* Justice Felix V. Makasiar was then the Solicitor General who filed the brief for the People
in this Court.

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EN BANC

[G.R. No. L-19491. August 30, 1968.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . APOLONIO

APDUHAN, JR. alias JUNIOR, ET AL. , defendants, APOLONIO
APDUHAN, JR. alias JUNIOR , defendant-appellant.

Solicitor General for plaintiff-appellee.

Alberto M. Meer for defendant-appellant.

SYLLABUS

1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; USE OF UNLICENSED

FIREARM. — A perceptive analysis of the provisions of Article 296 of the Revised Penal
Code reveals that said article is exclusively linked and singularly applicable to the
immediately antecedent provision of Article 295 on robbery in band, as the latter article,
in turn, is explicitly limited in scope to subdivisions 3, 4 and 5 of Article 294.
Consequently, although the use of unlicensed rearm is a special aggravating
circumstance under Article 296, as amended by Republic Act No. 12, it cannot be
appreciated as such in relation to robbery with homicide, described and penalized
under paragraph 1 of Article 294.
2. ID.; ID.; ABUSE OF SUPERIOR STRENGTH; ABSORPTION IN
CIRCUMSTANCE OF "BAND". — The withdrawal by the prosecution of the circumstance
of abuse of superiority alleged on the ground that since the offense of robbery was
committed by a band, the element of cuadrilla necessarily absorbs the circumstance of
abuse of superior strength, was ill-advised, since the circumstances of band and abuse
of superiority are separate and distinct legal concepts.
3. ID.; ID.; DWELLING; ROBBERY WITH HOMICIDE. — The settled rule is that
dwelling is aggravating in robbery with violence or intimidation of persons, since this
class of robbery, could be committed without the necessity of transgressing the
sanctity of the home.
4. ID.; ID.; NOCTURNITY. — Nocturnity is aggravating when, as in the case at
bar, it was purposely and deliberately sought by the accused to facilitate the
commission of the crime or to prevent their being recognized or to insure unmolested
escape.
5. ID.; MITIGATING CIRCUMSTANCES; INTOXICATION. — Under Article 15,
intoxication is mitigating when it is not habitual or intentional, that is, not subsequent to
the plan to commit the crime. However, to be mitigating the accused's state of
intoxication must be proved. In the case at bar, the accused merely alleged that when
he committed the crime charged, he was intoxicated although he was not used to be
drunk. This self-serving statement stands uncorroborated. Obviously, it is devoid of
merit.
6. CRIMINAL LAW; PLEA OF GUILTY; ADMISSION OF AGGRAVATING
CIRCUMSTANCES. — While an unquali ed plea of guilty is mitigating, it at the same time
constitutes an admission of all the material facts alleged in the information, including
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the aggravating circumstances therein recited.
7. ID.; SENTENCE; RECOMMENDATIONS OF CLEMENCY; PLEA OF GUILT. —
There is no compelling reason to justify the recommendation that the accused's death
sentence be commuted to life imprisonment for conceding that his plea was
"spontaneous" and "insistent", such manifestation of sincere repentance cannot serve
to obliterate the attendant aggravating circumstances which reveal the accused's
criminal perversity.
8. ID.; ID.; USE OF FIREARM TO COUNTERACT RESISTANCE. — The trial
court's observation that there is "the possibility that the rearm was used in order to
counteract the resistance of the deceased" is no justi cation at all for executive
clemency, for to employ a rearm in subduing the lawful resistance of innocent persons
is a criminal act by any standard.
9. ID.; PLEA OF GUILTY; COURT'S DUTY TO WARN ACCUSED OF EFFECT. —
While justice demands a speedy administration, judges are duty bound to be extra
solicitous in seeing to it that when an accused pleads guilty he understands fully the
meaning of his plea and the import of an inevitable conviction.

DECISION

CASTRO , J : p

This is an automatic review of the judgment rendered on August 30, 1961 by the
Court of First Instance of Bohol (Judge Hipolito Alo presiding) convicting Apolonio
Apduhan, Jr. of robbery with homicide and sentencing him to death and "to indemnify
the heirs of the deceased Geronimo Miano in the amount of P6,000.00, to indemnify the
heirs of the other deceased Norberto Aton in the same amount of P6,000.00 . . ."

On August 2, 1961 the accused Apduhan, then represented by Atty. David

Ocangas, together with his co-accused Rodulfo Huiso and Felipe Quimson, both
represented by Atty. David Tirol, pleaded not guilty to a second amended information
which recites:
"The undersigned Provincial Fiscal accuses Apolonio Apduhan, Jr., alias
Junior, Rodulfo Huiso and Felipe Quimson of the crime of Robbery With
Homicide, committed as follows:

"That on or about the 23rd day of May, 1961, at about 7:00 o'clock in the
evening, in the municipality of Mabini, province of Bohol, Philippines, the above-
named accused and ve (5) other persons whose true names are not yet known
(they are presently known only with their aliases of Bernabe Miano, Rudy, Angel-
Angi, Romeo and Tony) and who are still at large (they will be charged in separate
information or informations as soon as they are arrested and preliminary
proceedings in Crim. Case No. 176 completed before the Justice of the Peace
Court), all of them armed with different unlicensed rearms, daggers, and other
deadly weapons, conspiring, confederating and helping one another, with intent of
gain, did then and there willfully, unlawfully and feloniously enter, by means of
violence, the dwelling house of the spouses Honorato Miano and Antonia Miano,
which was also the dwelling house of their children, the spouses Geronimo Miano
and Herminigilda de Miano; and, once inside the said dwelling house, the above-
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named accused with their ve (5) other companions, did attack, hack and shoot
Geronimo Miano and another person by the name of Norberto Aton, who
happened to be also in the said dwelling house, thereby in icting upon the said
two (2) persons physical injuries which caused their death; and thereafter the
same accused and their ve (5) other companions, did take and carry away from
said dwelling house cash money amounting to Three Hundred Twenty-two Pesos
(P322.00), Philippine Currency, belonging to Honorato Miano and Geronimo
Miano, to the damage and prejudice of the said Honorato Miano and Geronimo
Miano, and the heirs of the deceased Geronimo Miano in the sum of Three
Hundred Twenty-two Pesos (P322.00) with respect to the amount robbed, and
also to the damage and prejudice of the heirs of deceased Geronimo Miano and
Norberto Aton by reason of the death of these two persons.

"Act committed contrary to the provisions of Art. 294, par. I, of the Revised
Penal Code with the special aggravating circumstance that the crime was
committed by a band with the use of unlicensed rearms (Art. 296, Rev. Penal
Code), and other aggravating circumstances, as follows:

"1. That the crime was committed in the dwelling of the

offended parties without any provocation from the latter;

"2. That nighttime was purposely sought to facilitate the

commission of the crime; and

"3. That advantage was taken of superior strength, accused and

their companions, who were fully armed, being numerically superior to the
offended parties who were unarmed and defenseless."

When the case was called for trial on August 9, 1961, Atty. Tirol informed the
court a quo that he was appearing also for Apduhan, but only as counsel de o cio . In
view of this manifestation, the trial court appointed Atty. Tirol as counsel de o cio for
the said accused. Forthwith, Atty. Tirol manifested that Apduhan would change his
former plea of not guilty to a plea of guilty. The record discloses that after the trial
judge had repeatedly apprised Apduhan of the severity of the offense for which he was
indicted and the strong possibility that the capital penalty might be imposed upon him
despite a plea of guilty, Apduhan persisted in his intention to plead guilty with the
request, however, that the death penalty be not imposed. Then after hearing the
arguments of Provincial Fiscal Jesus N. Borromeo and Atty. Turol on the effect of
Articles 295 and 296 of the Revised Penal Code on the case at bar, the trial judge
advised the herein accused anew that he could be sentenced to death notwithstanding
his projected plea of guilty, but the latter reiterated his desire to confess his guilt on the
speci c condition that he be sentenced to life imprisonment. Eventually, however,
Apduhan desisted from pleading guilty and let his previous plea stand on record after
further warnings that he faced the grave danger of being sentenced to death in view of
the circumstances of his case. But the aforesaid desistance was merely momentary as
it did not end the accused's equivocation on the matter of his plea. After a ve-minute
recess requested by Atty. Tirol in order to confer with the accused, the former informed
the court a quo that his client would insist on entering a plea of guilty. The following
appears on record:
"Atty. D. TIROL:

"Your Honor, please, I had a conference with the accused and apprised him
with the situation of the case and after hearing our appraisal he
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manifested that he will insist on his entering a plea of guilty, Your Honor. I
made it clear to him that we are not forcing him to enter the plea of guilty.

"COURT (To accused Apolonio Apduhan, Jr.):

"Q. Is it true that you are withdrawing your plea of not guilty?

"A. I will just enter the plea of guilty.

"Q. Have you been forced to enter the plea of guilty by your lawyer?

"A. No, Sir.

"Q. And why do you said 'I will JUST enter the plea of not guilty?
"A. I have proposed to enter the plea of guilty even before.

"Q. Now the Court warns you again. Are you conscious of the fact that
notwithstanding your plea of guilty the court may impose upon you the
penalty of death?
"A. I will just enter the plea of guilty, at the discretion of the Court.

"Q. Even with all those dangers mentioned by the Court to you?
"A. Yes, Sir." (t.s.n. pp. 23-25)

Subsequently, the prosecuting scal and the counsel de oficio resumed their oral
arguments regarding the effect on the instant case of Articles 295 and 296, particularly
the use of unlicensed rearm as a special aggravating circumstance under the latter
article. Also discussed were the existence and effect of the alleged mitigating and
aggravating circumstances. All of these points will be later analyzed.
When the lower court subsequently reviewed the proceedings, it found that the
accused's plea of guilty was ambiguous. Hence, on August 30, 1961, the case was
reopened with respect to Apduhan, and on said date the latter entered a categorical
plea of guilty, as evidenced by the record:
"COURT (To Accused Apduhan, Jr.):
"The Court reopened this case because after a review of the proceedings it
found that your plea was not definite. In answer to a question of the Court
you simply said 'I will just enter the plea of guilty'. The court wants to know
whether you enter the plea of guilty of the crime charged in the second
amended information.
"ACCUSED APDUHAN:

"I enter the plea of guilty.

"COURT (To same accused Apduhan):

"Q. Therefore, you admit that you have committed the crime charged in the
second information?
"A. Yes, Your Honor.

"Q. Is it necessary for you that the second amended information be read
again?

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"A. No more; it is not necessary.
"Q. Do you want that the second amended information be read to you again?
"A. No more, Your Honor." (t.s.n. pp. 50-51)

On the same day, the court a quo rendered its decision, the pertinent dispositive
portion of which reads:
"PREMISES CONSIDERED, the court renders judgment nding accused
Apolonio Apduhan, Jr. alias Junior guilty of the complex crime of robbery with
homicide, punished by Article 294 of the Revised Penal code, in relation to Article
296 of the same Code, as amended, and sentences him to suffer the penalty of
death."

Considering that Apduhan had voluntarily confessed his guilt in open court, then
the only aspect of the case properly subject to review is the correctness of the penalty
imposed by the court a quo. In this respect, the appreciation of the use of unlicensed
rearm as a special aggravating circumstance (Art. 296) in xing the appropriate
penalty for robbery with homicide (Art. 294[1]) committed by a band with the use of
unlicensed rearms, and the interplay and counter-balancing of the attendant mitigating
and aggravating circumstances, would determine the severity of the penalty imposable.
The disposition of the question at hand necessitates a discussion of the
interrelation among articles 294, 295 and 296 of the Revised Penal Code. For this
purpose the said articles are hereunder quoted:
"ART. 294. Robbery with violence against or intimidation of persons —
Penalties. — Any person guilty of robbery with the use of violence against or
intimidation of any person shall suffer:
"1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed.
"2. The penalty of reclusion temporal in its medium period to reclusion
perpetua, when the robbery shall have been accompanied by rape or intentional
mutilation, or if by reason or on occasion of such robbery, any of the physical
injuries penalized in subdivision 1 of 263 shall have been inflicted.

"3. The penalty of reclusion temporal, when by reason or on occasion

of the robbery, any of the physical injuries penalized in subdivision 2 of the article
mentioned in the next preceding paragraph, shall have been inflicted.
"4. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the violence or intimidation employed in the
commission of the robbery shall have been carried to a degree clearly
unnecessary for the commission of the crime, or when in the course of the
execution, the offender shall have in icted upon any person not responsible for
its commission any of the physical injuries covered by subdivisions 3 and 4 of
said article 263.
"5. The penalty of prision correccional in its maximum period to prision
mayor in its medium period on other cases." (As amended by Rep. Act 18.)
"ART. 295. Robbery with physical injuries, committed in an uninhabited
place and by a band, or with the use of rearm on a street, road or alley. — If the
offenses mentioned in subdivisions three, four, and ve of the next preceding
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article shall have been committed in an uninhabited place or by a band, or by
attacking a moving train, street car, motor vehicle or airship, or by entering the
passengers' compartments in a train or, in any manner, taking the passengers
thereof by surprise in the respective conveyances, or on a street, road, highway, or
alley, and the intimidation is made with the use of a rearm, the offender shall be
punished by the maximum period of the proper penalties. (As amended by Rep.
Act Nos. 12 and 373.)" (Italics supplied)
"ART. 296. De nition of a band and penalty incurred by the members
thereof. — When more than three armed malefactors take part in the commission
of a robbery, it shall be deemed to have been committed by a band. When any of
the arms used in the commission of the offense be an unlicensed rearm, the
penalty to be imposed upon all the malefactors shall be the maximum of the
corresponding penalty provided by law, without prejudice to the criminal liability
for illegal possession of such unlicensed firearm.

"Any member of a band who is present at the commission of a robbery by

the band, shall be punished as principal of any assaults committed by the band,
unless it be shown that he attempted to prevent the same (As amended by Rep.
Act No. 12)." (Italics supplied)

The afore-quoted Art. 294 enumerates ve classes of robbery with violence

against or intimidation of persons and prescribes the corresponding penalties. The
case at bar falls under Art. 294(1) which de nes robbery with homicide and xes the
penalty from reclusion perpetua to death.
Article 295 provides, inter alia, that when the offenses described in subdivisions
3, 4, and 5 of Art. 295 are committed by a band, the proper penalties must be imposed
in the maximum periods. The circumstance of band is therefore qualifying only in
robbery punished by subdivisions 3, 4, and 5 of Art. 294. Consequently, Art. 295 is
inapplicable to robbery with homicide, rape, intentional mutilation, and lesiones graves
resulting in insanity, imbecility, impotency or blindness. If the foregoing classes of
robbery which are described in Art. 294(1) and (2) are perpetrated by a band, they
would not be punishable under Art . 295, but then cuadrilla would be a generic
aggravating under art. 14 of the Code. 1 Hence, with the present wording of Art. 295 2
there is no crime as "robbery with homicide in band." If robbery with homicide is
committed by a band, the indictable offense would still be denominated as "robbery
with homicide" under Art. 294(1), but the element of band, as stated above, would be
appreciated as an ordinary aggravating circumstance.
Article 296, as quoted above, de nes "band", creates the special aggravating
circumstance of use of unlicensed firearm, and provides the criminal liability incurred by
the members of the band. The ascertainment of the de nite function and range of
applicability of this article in relation to Articles 294 and 295 is essential in the
disposition of the case at bar.
In imposing the death penalty, the trial court appears to have accorded validity to
the Provincial Fiscal's contention that in robbery with homicide committed by a band,
the use of unlicensed rearm must be appreciated as a special aggravating
circumstance pursuant to Art. 296. Thus convinced, the trial judge stressed in his
decision that "under the express mandate of the law, we cannot escape the arduous
task of imposing the death penalty." Subscribing to the said position, the Solicitor
General adds that the "penalty for robbery under the circumstances mentioned in
Articles 294, paragraph 1, and 296 of the Code is the maximum of reclusion perpetua
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to death, or the supreme penalty of death. This is mandatory."
On the other hand, Atty. Alberto M. Meer, the accused's counsel de o cio in the
present review, contends that the use of unlicensed rearm, if ever appreciated in the
case at bar, must be considered a generic aggravating factor which "may be offset by
the existence of mitigating circumstances to that the penalty to be imposed should be
the penalty of reclusion perpetua."
Both the foregoing contentions are untenable.
After a perceptive analysis of the provisions of Art. 296, we reach the considered
opinion that the said article is exclusively linked and singularly applicable to the
immediately antecedent provision of Art. 295 on robbery in band, as the later article in
turn, is explicitly limited in scope to subdivisions 3, 4, 5 of Art. 294. Consequently,
although the use of unlicensed rearm is a special aggravating circumstance under art.
296, as amended by Rep. Act 12, 3 it cannot be appreciated as such in relation to
robbery with homicide, described and penalized under paragraph 1 of Art. 294.
As previously stated, Art. 295 provides that if any of the classes of robbery
described in subdivisions 3, 4, and 5 of art. 294 is committed by a band, the offender
shall be punished by the maximum period of the proper penalty. Correspondingly, the
immediately following provisions of Art. 296 de ne the term " band," prescribe the
collective liability of the members of the band, and state that "when any of the arms
used in the commission of the offense be an unlicensed rearm, the penalty to be
imposed upon all the malefactors shall be the maximum of the corresponding penalty
provided by law." Viewed from the contextual relation to Articles 295 and 296, the word
"offense" mentioned in the above-quoted portion of the latter article logically means the
crime of robbery committed by a band, as the phrase "all the malefactors" indubitably
refers to the members of the band and the phrase "the corresponding penalty provided
by law" relates to the offenses of robbery described in the last three subdivisions of
Art. 294 which are all encompassed within the ambit of Art. 295. Evidently, therefore,
Art. 296 in its entirety is designed to amplify and modify the provision on robbery in
band which is nowhere to be found but in Art. 295 in relation to subdivisions 3, 4, and 5
of art. 294. Verily, in order that the aforesaid special aggravating circumstance of use
of unlicensed rearm may be appreciated to justify the imposition of the maximum of
the maximum period of the proper penalty, it is a condition sine qua non that the
offense charged be robbery committed by a band within the contemplation of Art. 295.
To reiterate, since Art. 295 does not apply to subdivisions 1 and 2 of Art 294, then the
special aggravating factor in question, which is solely applicable to robbery in band
under Art. 295, cannot be considered in xing the penalty imposable for robbery with
homicide under Art. 294( 1), even if the said crime was committed by a band with the
use of unlicensed firearms.
The legislative intent of making Art. 296 corollary to art. 295 with respect to
robbery in band was unmistakably articulated by Congressman Albano in his
sponsorship speech on H. B. No. 124 (subsequently enacted as Rep. Act No. 12,
amending among others, Articles 295 and 296 of the Revised Penal Code). Said
Congressman Albano:
"Article 296 as a corollary of Article 295 would change the de nition
heretofore known of the term 'band' under the law. The purpose of this
amendment is to inject therein the element of aggravation, when any member of
the band carries an unlicensed firearm . . ." 4

The special aggravating circumstance of use of unlicensed rearm, however, was

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initially applicable to all the subdivisions of Art. 294 since the said Rep. Act No. 12 also
amended Art. 295 to include within its scope all the classes of robbery described in Art.
294. With the then enlarged coverage of Art. 295, Art. 296, being corollary to the former,
was perforce made applicable to robbery with homicide (Art. 294[1]). Thus, in People
vs. Bersamin, 5 this Court, in passing, opined:
"The use of unlicensed rearm is a special aggravating circumstance
applicable only in cases of robbery in band (Art. 296, Revised Penal Code, as
amended by section 3, Republic Act No. 12)."

In the said case, this Court, declared in effect that in robo con homicidio the use of
unlicensed rearm is not a special aggravating circumstance when the said offense is
not committed by a band. Inferentially, had the robbery with homicide in Bersamin been
perpetrated by a band, the use of unlicensed rearm would have been appreciated. This
implied pronouncement would have been justi ed under Art. 296 in relation to Art. 295,
as amended by Rep. Act 12. But the aforesaid inference lost all legal moorings in 1949
with the enactment of Rep. Act 373 which excluded subdivisions 1 and 2 of Art. 294
from the coverage of Art. 295. Since Art. 296, as repeatedly emphasized above, is
corollary to Art. 295, the diminution of the latter's scope correspondingly reduced the
former's extent of applicability. In other words, the passage of the foregoing
amendment did not only jettison the rst two subdivisions of Art . 294 from the
periphery of Art. 295 but also removed the said subdivisions (which pertain, inter alia, to
the offense of robbery with homicide) from the effective range of Art. 296.
Notwithstanding that the special aggravating circumstance of use of unlicensed
rearm cannot be appreciated in the instant case, we are constrained, in the nal
analysis, to observe that the imposition of the death penalty on the accused Apduhan
would appear to be a logical legal consequence, because as against the attendant
mitigating circumstances the aggravating circumstances numerically and qualitatively
preponderate.
After Apduhan had pleaded guilty, the defense counsel offered for consideration
three mitigating circumstances, namely, plea of guilty, intoxication, and lack of intent to
commit so grave a wrong. Subsequently, however, the defense withdrew the last
mentioned mitigating circumstance after the prosecution had withdrawn the
aggravating circumstance of abuse of superior strength. The following manifestations
appear on record:
"FISCAL BORROMEO:
"In fairness to the accused, because the crime charged is robbery in baud
(the case at bar is actually robbery with homicide), it is natural that in
robbery in band there is already abuse of superior strength, so we will just
withdraw that superior strength.
"COURT (To Atty. D. Tirol):
What do you say now?
"ATTY. D. TIROL:
"Such being the case, we will not insist on presenting evidence in support
of our contention that the accused did not intend to commit so grave a
wrong.
"COURT:
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"Moreover, by the mere use of firearm accused cannot claim that he did not
intend to commit so grave a wrong as that committed. So now you
withdraw your petition that you be allowed to present evidence to that
effect?
"ATTY. D. TIROL:

Yes, Your Honor." (t.s.n. pp. 47-48)

Thus, only two alleged mitigating circumstances remain for consideration.

Anent the plea of guilty, we believe that under Art. 13(7) its appreciation in the
case at bar is beyond controversion.
However, apropos the alternative circumstance of intoxication, we nd no
evidence on record to support the defense's claim that it should be considered as a
mitigating factor. This absence of proof can be attributed to the defense's erroneous
belief that it was not anymore its burden to establish the state of intoxication of the
accused when he committed the offense charged since anyway the prosecution had
already admitted the attendance of the said mitigating circumstance on the ground that
the State did not have strong evidence to overthrow the accused's claim of non-
habituality to drinking. The record discloses the following pertinent discussion:
"COURT (To Fiscal Borromeo):
Do you agree, Mr. Fiscal, that the non-habitual intoxication of the accused
be also taken into account in his favor as a mitigating circumstance?
"FISCAL BORROMEO:

"We have no evidence exactly to know at this time that the accused was
intoxicated, but his affidavit states that before the commission of the
crime they took young coconuts and there is no mention about the taking
of any liquor, so that, as it is now, we are constrained to object.
"COURT (To the Fiscal):
"But do you have evidence to counteract that allegation?
"FISCAL BORROMEO:

"We do not have any evidence to counteract that,

"COURT (To the Fiscal):
"But do you admit the attendance of that circumstance?
"FISCAL BORROMEO:
"With that manifestation we submit because actually we do not have
evidence to counter-act that he was a habitual drinker.
"COURT (To the Fiscal):

"But do you prefer to admit that mitigating circumstance or you need that
evidence be presented to that effect?

"FISCAL BORROMEO:
"Inasmuch as we do not have strong evidence to contradict that
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circumstance, in fairness to the accused, we would rather submit.
"COURT (To the Fiscal):
The attendance of the mitigating circumstance of non-habitual
intoxication?
"FISCAL BORROMEO:
Yes, Your Honor." (t.s.n. pp. 7-9) (Italics supplied)

From the above proceedings in the trial court, it would appear that what the
prosecution actually intended to admit was the non- habituality of the accused to
drinking liquor, not as a matter of fact, but due to the State's inability to disprove the
same. The prosecution apparently did not concede the actual intoxication of the
accused. We are of the rm conviction that, under the environmental circumstances, the
defense was not relieved of its burden to prove the accused's actual state of
intoxication. Otherwise, to appreciate the attendance of a mitigating factor on the mere
allegation of the accused, coupled with the dubious acquiescence of the prosecution,
would open wide the avenue for unscrupulous and deceitful collusion between defense
and prosecution in order to unduly and unjustly minimize the penalty imposable upon
the accused.
The last paragraph of Art. 15 of the Code provides:
"The intoxication of the offender shall be taken into consideration as a
mitigating circumstance when the offender has committed a felony in a state of
intoxication, if the same is not habitual or subsequent to the plan to commit said
felony; but when the intoxication is habitual or intentional it shall be considered
as an aggravating circumstance." (Italics supplied).

Under the foregoing provision, intoxication is mitigating when it is not habitual or

intentional, that is, not subsequent to the plan to commit the crime. However, to be
mitigating the accused's state of intoxication must be proved. 6 Once intoxication is
established by satisfactory evidence, 7 then, in the absence of proof to the contrary, it is
presumed to be non-habitual or unintentional. 8
In People vs. Noble 9 the defendant testi ed that before the murder he took a
bottle of wine and drank little by little until he got drunk. The policeman who arrested
the accused testi ed that the latter smelled wine and vomited. The Court held that the
evidence presented was not satisfactory to warrant a mitigation of the penalty.
Intoxication was likewise not competently proved in a case 1 0 where the only evidence
was that the defendant had a gallon of tuba with him at the time he committed the
crime.
In the case at bar the accused merely alleged that when he committed the
offense charged he was intoxicated although he was "not used to be drunk." 1 1 This
self-serving statement stands uncorroborated. Obviously, it is devoid of any probative
value.
To recapitulate, the accused has in his favor only one mitigating circumstance:
plea of guilty. As aforementioned, the defense withdrew its claim of "lack of intent to
commit so grave a wrong" and failed to substantiate its contention that intoxication
should be considered mitigating.
While an unquali ed plea of guilty is mitigating, it at the same time constitutes an
admission of all the material facts alleged in the information including the aggravating
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circumstances therein recited. 1 2 The four aggravating circumstances are (1) band; (2)
dwelling; (3) nighttime; and (4) abuse of superior strength. The circumstance of abuse
of superiority was, however, withdrawn by the prosecution on the ground that since the
offense of robbery with homicide was committed by a band, the element of cuadrilla
necessarily absorbs the circumstance of abuse of superior strength. We believe that
said withdrawal was ill-advised since the circumstances of band and abuse of
superiority are separate and distinct legal concepts. The element of band is
appreciated when the offense is committed by more than three armed malefactors
regardless of the comparative strength of the victim or victims. Hence, the
indispensable components of cuadrilla are (1) at least four malefactor and (2) all of the
four malefactors are armed. On the other hand, the gravamen of abuse of superiority is
the taking advantage by the culprits of their collective strength to overpower their
relatively weaker victim or victims. Hence, in the latter aggravating factor, what is taken
into account is not the number of aggressors nor the fact that they are armed, but their
relative physical might vis-α-vis the offended party.
Granting, however, that the withdrawal was valid, there still remain three
aggravating circumstances which render inutile the solitary extenuating circumstance
of plea of guilty. The prosecution does not need to prove the said three circumstances
(all alleged in the second amended information) since the accused, by his plea of guilty,
has supplied the requisite proof. 1 3 Hence, we will not belabor our discussion of the
attendant aggravating circumstances.
The settled rule is that dwelling is aggravating in robbery with violence or
intimidation of persons, 1 4 like the offense at bar. The rationale behind the
pronouncement is that this class of robbery could be committed without the necessity
of transgressing the sanctity of the home. Morada is inherent only in crimes which
could be committed in no other place than in the house of another, such as trespass
and robbery in an inhabited house. 1 5 This Court in People vs. Pinca, 1 6 citing People vs.
Valdez, 1 7 ruled that the "circumstances (of dwelling and scaling) were certainly not
inherent in the crime committed, because, the crime being robbery with violence or
intimidation against persons (speci cally, robbery with homicide) the authors thereof
could have committed it without the necessity of violating or scaling the domicile of
their victim." Cuello Calon opines that the commission of the crime in another's dwelling
shows greater perversity in the accused and produces greater alarm. 1 8
Nocturnity is aggravating when it is purposely and deliberately sought by the
accused to facilitate the commission of the crime 1 9 or to prevent their being
recognized or to insure unmolested escape. 2 0 Nocturnidad must concur with the intent
and design of the offender to capitalize on the intrinsic impunity afforded by the
darkness of night. 2 1 In the case at bar, the a davit (exh. 1-1) of the accused Apduhan
shows that he and his co-malefactors took advantage of the nighttime in the
perpetration of the offense as they waited until it was dark before they came out of
their hiding place to consummate their criminal designs.
In his decision, the trial judge recommends to the President of the Republic the
commutation of the death sentence which he imposed on the accused to life
imprisonment. The Solicitor General supports this recommendation for executive
clemency.
We nd no compelling reason to justify such recommendation. Contrary to the
trial judge's observation, the accused's plea of guilty was far from "spontaneous" and
"insistent". It will be recalled that his initial plea was one of not guilty. Later, he changed
his plea but with the persistent condition that he be sentenced to life imprisonment, not
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death. It was only after much equivocation that he nally decided to "just" plead guilty.
Because his plea was still ambiguous, the court a quo had to reopen the case to
ascertain its real nature. Conceding, however, that his plea was "spontaneous" and
"insistent," such manifestation of sincere repentance cannot serve to obliterate the
attendant aggravating circumstances which patently reveal the accused's criminal
perversity.
It appears from a cursory reading of the decision under review that the trial judge
also anchored his recommendation on the ground that there is "the possibility that the
rearm was used in order to counteract the resistance of the deceased." This is no
justi cation at all for executive clemency. Firstly, the above observation is a mere
conjecture — in the language of the presiding judge, a "possibility." Secondly, even
granting that the said observation relates to the actual happening, to employ a rearm
in subduing the lawful resistance of innocent persons is a criminal act by any standard.
Even as we purge the decision under review of its errors, we must hasten to
commend the trial judge, the Hon. Hipolito Alo, for his earnest and patient efforts to
forestall the entry of an improvident plea of guilty by the accused Apduhan,
notwithstanding that the latter was already represented by a counsel de o cio and
hence presumed to have been advised properly. Judge Alo made sure that the accused
clearly and fully understood the seriousness of the offense charged and the severity of
the penalty attached to it. When the accused proposed to confess his guilt, Judge Alo
repeatedly warned him that the death penalty might be imposed despite his plea of
guilty. As aforementioned, when it appeared that Apduhan's plea of guilty was
ambiguous, Judge Alo reopened the case to determine with de nitiveness the nature of
his plea.
The virtue of Judge Alo's efforts in ascertaining whether Apduhan pleaded guilty
with full knowledge of the signi cance and consequences of his act, recommends itself
to all trial judges who must refrain from accepting with alacrity an accused's plea of
guilty, for while justice demands a speedy administration, judges are duty bound to be
extra solicitors in seeing to it that when an accused pleads guilty he understands fully
the meaning of his plea and the import of an inevitable conviction.
As a nal commentary on the criminal conduct of the accused herein, it must be
emphasized that the instant review was delayed for several years because he escaped
from the New Bilibid Prisons on June 17, 1963, less than six months after he was
committed to the said penitentiary. He was recommitted on July 10, 1964 with a new
mittimus from the Court of First Instance of Leyte for robbery in band in criminal case
10099, for which he was sentenced to serve a prison term of from 8 years and 1 day to
12 years and 1 day commencing on October 31, 1963. 2 2 His recommitment was
reported to this Court only on July 5, 1966.
Notwithstanding the foregoing disquisition, for failure to secure the required
number of votes, the penalty of death cannot be legally imposed. The penalty next lower
in degree — reclusion perpetua — should consequently be imposed on the accused.
ACCORDINGLY, with the modi cation that the death sentence upon Apolonio
Apduhan, Jr. by the court a quo is reduced to reclusion perpetua, the judgment a quo is
affirmed in all other respects, without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles , and
Fernando, JJ., concur.

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Footnotes

1. People vs. Casunuran, L-7654, August 16, 1956; People vs. Leyesa, Ld-7842, August 30,
1956.

2. Prior to Rep. Act 373, the scope of art. 295, as amended by Rep. Act No. 12.
3. People vs. Bersamin, 88 Phil. 292.

4. Philippine Congressional Record, House of Representative, Vol. 22, June 29, 1946, p. 290.
5. See note 3.

6. Aquino, The Revised Penal Code, vol. II, p. 399.

7. People vs. Noble, 77 Phil. 93.

8. U.S. vs. Fitzgerald, 2 Phil. 419.

9. See note 7.
10. People vs. Pardo, 79 Phil. 568.

11. See t.s.n. p. 3.

12. People vs. Egido, 90 Phil., 762; People vs. Santos and Vicente, 105 Phil. 40.
13. People vs. Acosta, 98 Phil. 642; People vs. Rapirap, 102 Phil. 863.

14. U.S. vs. Leyba, 8 Phil. 671; People vs. Sebastian, 85 Phil. 602; People vs. Napili, 85 Phil.
521.
15. Aquino, Vol. I, p. 286.

16. L-16595, Feb. 23, 1982.

17. 84 Phil. 860.

18. Cited in Aquino, supra, p. 287.

19. People vs. Alcala, 46 Phil. 739; People vs. Matbagon, 60 Phil. 887; People vs. Corpus, et
al., L-10104, January 28, 1961.
20. U.S. vs. Billedo, 32 Phil. 575; People vs. Perez and De Leon, 32 Phil. 163.

21. People vs. Leyles, L-15300, May 29, 1964.

22. Letter-Report from the Office of the Superintendent, New Bilibid Prison.

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EN BANC

[G.R. No. L-51304-05. June 28, 1983.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. MARTIN MANDOLADO

and JULIAN ORTILLANO , defendants-appellants.

The Solicitor General for plaintiff-appellee.

Basilio V. Lanoria for defendants-appellants.

SYLLABUS

1. CONSTITUTIONAL LAW: CUSTODIAL INVESTIGATION; RIGHT OF

ACCUSED TO REMAIN SILENT AND TO AVAIL OF ASSISTANCE OF COUNSEL,
EXPRESSLY WAIVED. — Appellants' claim that they were not previously apprise of their
constitutional right before they executed their extra-judicial confession deserves scant
consideration in as much as their claim is belied by the opening statements appearing
in their sworn statements wherein the investigator informed them of their rights to
remain silent and to assistance of counsel which they, understood and answered in the
affirmative as well as theft expressed waiver of such rights.
2. REMEDIAL LAW; EVIDENCE; EXTRA-JUDICIAL CONFESSION; ALLEGED
EXECUTION UNDER DURESS AND FORCE, REBUTTED BY SIGNIFICANT AND
IMPORTANT DETAILS AFFIANTS ALONE COULD HAVE FURNISHED. — Appellants'
contention that they signed their sworn statements because they were maltreated and
forced, cannot be believed, not for failure on their part to present any evidence of
compulsion, duress or violence but also because they even failed to identity their
inventors who allegedly in icted maltreatment to them, much less complained to the
o cials who administered the oaths to their sworn statements, of such maltreatment,
if any. Moreover, the sworn statements themselves contain signi cant and important
details with the a ants alone could have furnished, thereby clearly revealing the
voluntariness of said statement and rendering the same admissible as evidence
(People vs. Rosales, 108 SCRA 339; People vs. Regular, 108 SCRA 23, 39; People vs.
Tintero, 111 SCRA 714; People vs. Estero, 91 SCRA 93, 99)
3. ID.; ID.; PROOF BEYOND PERADVENTURE OF DOUBT; CONVICTION BASED
NOT EXTRA-JUDICIAL CONFESSION ALONE BUT ALSO ON CIRCUMSTANTIAL
EVIDENCE. — The conviction of appellant Mandolado appears to be based not only on
his extra-judicial confession but also upon the following circumstances which proved
that he did shot and kill the victims, Tenorio and Mendoza, beyond peradventure of
doubt, to wit: (1) he repeatedly red his 30 caliber machine gun while intoxicated at the
bus terminal in Midsayap; (2) that he red at the Ford Fiera which took them in the
Midsayap junction hitting one of its passengers; (3) that Anacleto Simon while running
away from the jeep driven by the deceased, heard a burst of machinegun re coming
from the direction of the jeep; (4)the result of the Ballistic examination showing that the
shells recovered from the scene of the crime were red from the gun issued to
appellant Mandolado; (5) the attempted ight of both appellants from justice and
which act clearly indicates guilt for the "wicked eeth where no man pursueth but the
righteous are as bold as the lion; and lastly (6) appellant's own admission before the
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lower court that the killed Tenorio and Mendoza although he claims the same to be
accidental.
4. CRIMINAL LAW; MURDER; COMMISSION QUALIFIED BY TREACHERY. —
The killing of the two victims in the case at bar is correctly quali ed as murder, there
being present the qualifying circumstance of treachery which is alleged in the
information. There is treachery when the offender commits any of the crimes against
the person, employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make (Art. 14, p-graph 16, Revised Penal
Code). The prosecution evidence is quite clear and explicit that when appellants
alighted from the jeep, the accused Mandolado immediately red his 30 caliber
machine gun at the occupants of the jeep, the victims Nolasco Mendoza and
Herminigildo Tenorio, and both of them died instantaneously on the spot, and from this
sudden means or manner of attack, it can reasonably be concluded that it tended
directly to insure its execution without risk to the appellant-assailant and also deprived
the victims of any chance or opportunity to defend themselves.
5. ID.; AGGRAVATING CIRCUMSTANCE OF TAKING ADVANTAGE OF ONE'S
POSITION, NOT CONSIDERED. — While it may be true that a soldier in the Armed Forces
of the Philippines is deemed as one who holds public position (U.S. vs. Gimenea, 24 Phil
464, where a constabulary soldier was held to be a public o cer), there is no
persuasive showing that herein appellants being draftees of the Army, in full military
uniform and carrying their high powered rearms, facilitated the commission of the
ones they were charged. It may be conceded that as draftees. the accused could easily
hitch-hike with private vehicles, as in the case of Tenorio's owner-type jeep but there is
no evidence that when they stopped the jeep the accused already intended to shoot the
occupants of the vehicle. As it was held in People vs. Pantoja, 25 SCRA 468, 471 that
"There is nothing to show that the appellant took advantage of his being a sergeant in
the Philippine Army in order to commit the crimes. The mere fact that he was in fatigue
uniform and had an army ri e at the time is not su cient to establish that he misused
his public position in the commission of the crimes . . ."
6. ID.; ID.; ABUSE OF CONFIDENCE; WHEN CONSIDERED AGGRAVATING;
LIKEWISE NOT SHOWN IN CASE AT BAR. — There could be no abuse of con dence in
the case at bar as the evidence on record showed the lack of con dence by the victims
to the appellants. that this con dence was abused. and that the abuse of the
con dence facilitated the commission of the crimes. In order that abuse of con dence
he dented as aggravating. it is necessary that "there exists a relation of trust and
con dence between the accused and one against whom the crime was committed and
the accused made use of such a relationship to commit the crime" (People vs.
Comendador, 100 SCRA 155, 172). It is also essential that the con dence between the
parties must be immediate and personal such as would give that accused some
advantage or make it easier for him to commit the crime; that such con dence was a
means of facilitating the commission of the crime, the culprit taking advantage of the
offended party's belief that the former would not abuse said con dence (People vs
Hanasan, 29 SCRA 534). In the instant case, there is absolutely no showing of any
personal or immediate relationship upon which con dence might rest between the
victims and the assailants who had just met each other then.
7. ID.; ID.; OBVIOUS UNGRATEFULNESS, LACK OF THE REQUISITE TRUST. —
Similarly, there could have been no obvious ungratefulness in the commission of the
crime for the simple reason that the requisite trust of the victims upon the accused
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prior to the criminal act and the breach thereof as contemplated under Article 14, par. 4
of the Revised Penal Code are manifestly lacking or non- existent. In all likelihood, the
accused Army then in their uniforms and holding their high-powered rearms cowed
the victims into boarding their jeep for a ride at machine gun point which certainly is no
source of gratefulness or appreciation.
8. ID.; MITIGATING CIRCUMSTANCE OF DRUNKENNESS, IF NOT HABITUAL
APPRECIATED IN FAVOR OF ACCUSED. — The trial Court's nding about the accused's
state of intoxication should credit both accused with the mitigating circumstance of
drunkenness which shall reduce the penalty to be imposed upon the accused in the
computation thereof.
9. ID.; CRIMINAL LIABILITY AS AN ACCOMPLICE; ESSENTIAL REQUISITES. —
An accomplice cooperates in the execution of the offense by previous or simultaneous
acts, provided he has no direct participation in its execution or does not force or induce
others to commit it, or his cooperation is not indispensable to its accomplishment (Art,
18, Revised Penal Code). It is an essential condition to the existence of complicity, not
only that there should be relation between the acts done by the principal and those
attributed to the person charged as accomplice, but it is further necessary that the
latter, with knowledge of the criminal intent, should cooperative with the intention of
supplying material or moral aid in the execution of the crime in an e cacious way
(People vs. Custodio, 47 SCRA 289, 303).
10. ID.; ID.; SIMULTANEOUS FIRING OF GUN, A MANIFESTATION OF
CONCURRENCE WITH THE CRIMINAL INTENT. — In the case at bar, Ortillano, by his
acts showed knowledge of the criminal design of Mandolado. He was present when
Mandolado tried to attack the driver of the Ford Fiera with a knife and red at the
vehicle hitting a female passenger. When Mandolado got angry and "cocked" his gun
and ordered Tenorio to stop the jeep, their two other companions, Simon and Erinada,
immediately jumped off the jeep and ran away, but Ortillano stayed. In a display of unity
with Mandolado, Ortillano red his armalite while they were riding in the jeep of the
victim. And Ortillano's act of ring his gun towards the ground manifested his
concurrence with the criminal intent. In other words, Ortillano's simultaneous acts
supplied, if not material. moral aid in the execution of the crime in an e cacious. way.
Ortillano's presence served to encourage Mandolado, the principal. or to increase the
odds against the victims (U.S. vs. Guevara, 2 Phil. 524, People vs. Silvestre and Atienza.
56 Phil. 353).

DECISION

GUERRERO , J : p

The judgment of conviction rendered by the Court of First Instance of Cotabato,

Branch II, Cotabato City dated June 28, 1979 sentencing the accused Martin
Mandolado to the supreme penalty of death in each case and the accused Julian
Ortillano to imprisonment of six (6) years of prision correccional as minimum to
seventeen (17) years of prision mayor as maximum, being merely an accessory, is
before Us for mandatory review.
Under two (2) separate criminal informations dated January 5, 1978 led by First
Assistant Provincial Fiscal Ismael G. Bagundang, the two accused-appellants, Martin
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Mandolado and Julian Ortillano, draftees assigned with the Alpha Company, 3rd Infantry
Battalion, Second Infantry Division, Philippine Army with station at Pikit, North Cotabato,
together with Anacleto Simon and Conrado Erinada, trainees attached to the
Headquarters & Headquarters Company, 3rd Infantry Battalion, 2nd Infantry Division,
Philippine Army, stationed at the Army Detachment along Simuay Junction, Simuay,
Sultan Kudarat, Maguindanao, were accused of murder for the death of the victims
Herminigildo Tenorio and his driver Nolasco Mendoza with the use of their rearms in
the afternoon of October 3, 1977 at Sultan Kudarat, Maguindanao, quali ed with the
aggravating circumstances of treachery, evident premeditation and abuse of superior
strength.

Speci cally, in Criminal Case No. 561, the information charged the accused as
follows: Cdpr

"That on or about October 3, 1977 in the afternoon, in the Municipality of

Sultan Kudarat, Province of Maguindanao, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused with intent to kill, conspiring,
confederating and helping one another with treachery, evident premeditation and
the use of superior strength all armed with high powered weapons did then and
there willfully, unlawfully. and feloniously, and with the use of their guns shoot
Mr. Nolasco Mendoza hitting the latter on the different parts of his body causing
his instantaneous death.
"Contrary to law with the aggravating circumstances of treachery, evident
premeditation, and the use of superior strength."

Similarly, in Criminal Case No. 562, the information reads:

"That on or about October 3, 1977, in the afternoon, in the Municipality of
Sultan Kudarat, Province of Maguindanao, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, with intent to kill, conspiring,
confederating and helping one another with treachery, evident premeditation and
the use of superior strength all armed with high-powered weapons did then and
there willfully, unlawfully, and feloniously, and with the use of their guns shoot
Mr. Herminigildo Fajardo Tenorio hitting the latter on the different parts of his
body causing his instantaneous death.
"Contrary to law with the aggravating circumstances of treachery, evident
premeditation, and the use of superior strength."

The charges having been allegedly committed at the same place and occasion
and involving all the four (4) accused in each instance were jointly tried per order of the
trial court dated February 28, 1978 and after completion thereof, the two herein
accused-appellants were found guilty while the remaining two accused, Anacleto Simon
and Conrado Erinada were acquitted. We quote hereunder the dispositive portion of the
decision now under review, to wit:
"WHEREFORE, Martin Mandolado is found guilty beyond reasonable doubt
of the crime of murder in Criminal Case No. 562 for the killing of Herminigildo
Fajardo Tenorio, and also in Criminal Case No. 561 for the killing of Nolasco
Mendoza, with the aggravating circumstances of (1) 'advantage was taken of his
being a draftee in the Philippine Army,' and (2) 'abuse of con dence or obvious
ungratefulness' without the presence of any mitigating circumstances and is
meted the following penalty, to wit:
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In Criminal Case No. 562, for the killing of Herminigildo Tenorio, he is
sentenced to suffer the penalty of the crime in its maximum degree which is
death.

He shall pay the heirs of the deceased the amount of P12,000.00 for the
death of this victim, and the amount of P20,000.00 as moral and exemplary
damages.
In Criminal Case No. 561 for the killing of the driver, Nolasco Mendoza, he
is similarly sentenced to death.
He is to pay the heirs of said deceased the amount of P50,000,00 for the
death of said victim, and the amount of P100,000.00 as moral and exemplary
damages. prcd

In both Criminal Cases Nos. 561 and 562, on the grounds of reasonable
doubt, Anacleto Simon and Conrado Erinada are both found not guilty. This case
against them (Anacleto Simon and Conrado Erinada) is hereby dismissed.

In Criminal Cases Nos. 561 and 562, Julian Ortillano was found guilty as
an accessory. He red his M-16 armalite whenever Martin Mandolado red his
machine gun and this could be for no other purpose than to conceal or destroy
the body of the crime in making it appear the victims were ghting them or
running away or that somebody else like the MNLF, rebels, NPA or bandits
committed the crime. Furthermore, in his own admission, the purpose of their
attempt to leave Mindanao for Bulacan after this incident was to hide and wait
for the time when Martin Mandolado could succeed in setting this case which is
evidence that he assisted in the escape of the principal of the crime.

He is hereby sentenced in each of both cases to serve an imprisonment

term of six (6) years of Prision Correccional as the minimum penalty, to seventeen
(17) years of Prision Mayor as the maximum penalty.
Martin Mandolado and Julian Ortillano are to pay jointly and solidarily the
cost of this litigation.

SO ORDERED.
Given in the City of Cotabato, Philippines, the 28th day of June, 1979.

(SGD.) ALEJANDRO R. LEOPANDO

District Judge"

The facts are as stated in the People's Brief as follows:

"In the morning of October 3, 1977, Julian Ortillano, Martin Mandolado, Conrado
Erinada and Anacleto Simon, trainees/draftees of the Armed Forces of the Philippines
and assigned to the 3rd Infantry Battalion of the Philippine Army, were passengers of a
bus bound for Midsayap, North Cotabato (p. 8, t.s.n., Feb. 21, 1979). They alighted at
the bus terminal in Midsayap. Being all in uniform, armed and belonging to the same
military out t, they got acquainted and decided to drink ESQ rum, at the said bus
terminal (pp. 10-11, Supra).
While drinking, Conrado Erinada and Anacleto Simon decided to join appellants in
going to Pikit, North Cotabato, home base of appellants (p. 59, id.). After drinking for
about an hour, appellant Mandolado got drunk and went inside the public market.
Subsequently, he returned, grabbed his .30 caliber machine gun and started ring. His
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companions tried to dissuade him but he nonetheless continued ring his gun (pp. 11-
12, Supra).
Sensing trouble, Conrado Erinada and Anacleto Simon ran away, hailed and
boarded a passing Ford Fiera with some passengers on board. Appellants followed and
boarded also the vehicle (pp. 13-15, Supra). The soldiers forced the driver of the Ford
Fiera to bring them to the Midsayap crossing (p. 58, t.s.n., July 24, 1978).
On their way, appellant Mandolado got his knife and tried to attack the driver (pp.
61-62, Supra). After appellants alighted at said crossing, the Ford Fiera sped away.
Appellant Mandolado red his .30 caliber machine gun at the speeding vehicle (p. 51,
t.s.n., Jan. 17, 1979) hitting the right side of the back of the driver's sister who was then
on board said vehicle (p. 64, t.s.n., July 24, 1978).
cdrep

While waiting for a ride at the Midsayap crossing a privately owned jeep, driven
by Herminigildo Tenorio, passed by. On board said jeep which was bound for Cotabato
City were Nolasco Mendoza and two (2) others, but the latter two alighted at said
crossing. Conrado Erinada and Anacleto Simon boarded the jeep. Thereafter, appellants
ran after the jeep, shouted at Herminigildo Tenorio, the driver thereof, to stop the
vehicle and subsequently, both appellants Mandolado and Ortillano boarded the jeep (p.
34, Supra). On the way, both appellants kept ring their guns (pp. 54-55, t.s.n., Jan. 17,
1979) prompting Herminigildo Tenorio to remark, "Kung hindi kayo tatahimik,
ibabangga ko itong jeep" (Sworn Statement, Exh. Q, Mandolado) which literally means,
"if you will not stop firing your guns, I will ran this jeep into something."
Upon learning that the jeep was bound for Cotabato City and not Pikit, North
Cotabato, appellant Mandolado got angry, "cocked" his gun and ordered the driver to
stop (pp. 36-38, Supra). While the jeep was coming to a full stop, Conrado Simon and
Anacleto Erinada immediately jumped off the jeep and ran towards their detachment
camp located some two hundred fty meters away. Appellants also got off the jeep.
Thereupon, appellant Mandolado red his .30 caliber machine gun at and hit the
occupants of the jeep (Sworn Statement, Exh. Q, Mandolado). Appellant Ortillano
likewise, red his armalite, not at the occupants of said jeep but downwards hitting the
ground. These bursts of gun re were heard by both Conrado Erinada and Anacleto
Simon who were then already about fty meters away from the jeep while running
towards their detachment camp (pp. 38 and 42, t.s.n., Feb. 21, 1979). Although it was
then raining torrentially, Anacleto Simon recognized the bursts of gun re as those of a
machine gun (p. 43, Supra).
Appellants ran away from the scene and boarded another vehicle, alighting at
Pinaring crossing. Appellant Mandolado proceeded to a house where he left his
belongings and changed his wet uniform (p. 104, Supra). After about an hour, they rode
in a "Hino" passenger bus bound for Midsayap. On board said bus was a certain Mr.
Leopoldo Jalandoni who was seated in front of the appellants.
Upon reaching a BPH building near Nuling, Sultan Kudarat, the passengers of said
bus were ordered to alight at the military check point but appellant Mandolado did not
alight (pp. 10-13, t.s.n., Oct. 5, 1975). As the bus was not proceeding to Pikit, North
Cotabato and upon advice of Mr. Jalandoni, appellants alighted at the Midsayap
crossing and waited for a bus bound for Pikit (pp. 19-20, Supra).
Appellants were able to ride on a sand and gravel truck which took them to Pikit,
North Cotabato, arriving thereat at about 3:00 o'clock in the afternoon. At their camp,
appellants returned their rearms, but did not report the incident. In the evening,
appellants attended a party at the Pikit Elementary School (pp. 32-35, t.s.n., April 16,
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1979). The following day, appellants proceeded to Davao City but stopped at Kavocan
where they stayed overnight.
Arriving at Davao City, the following morning, appellants went to see a movie and
afterwards proceeded to the O ce of Doña Ana, a shipping rm (p. 40, Supra), where
they saw a certain Sgt. Villanueva who was then leaving for Luzon. Sgt. Villanueva
informed the appellants that they were suspects in the Tenorio and Mendoza killings.
Immediately thereafter, appellant Mandolado purchased two passenger tickets for
Manila. The other ticket was for appellant Ortillano (pp. 120-123, Supra). However,
before appellants could board the ship bound for Manila, they were apprehended by a
team led by Lt. Licas (p. 45, Supra). Appellants were brought to Pikit, North Cotabato
where they were investigated by Lts. Licas and Maburang about the aforesaid killings.
The following day. appellants were brought to the headquarters of the 2nd MP
Battalion at P.C. Hill, Cotabato City where they were again investigated. In said
investigation, after appellants were duly apprised of their constitutional rights, they
executed and signed their respective sworn statements (Exhs. "O" and "R"). Appellant
Mandolado admitted the killing of Tenorio and Mendoza (Exh. "Q"); whereas appellant
Ortillano admitted his presence at said killings and of his having red his armalite
downwards after appellant Mandolado red upon the killed the afore-named victims
(Exh. "R"). cdrep

Silverio Balderosa, on October 3, 1977, at about 12:30 p.m., was on board a

"Pinoy" jeep. On his way home to Midsayap, he passed a jeep parked along the highway
towards the direction of Cotabato City and about 250 meters away from the BPH
building. The parked jeep was surrounded by several persons. Alighting from the "pinoy"
jeep, he went near the parked jeep to see what happened. He saw the lifeless bodies of
two persons, one sprawled along the highway whom he recognized as Nolasco
Mendoza and the other whom he recognized as Mr. Tenorio slumped on the wheel of
the parked jeep (pp. 13-15, t.s.n., July 24, 1978).
The postmortem examination conducted by Dr. Taeb Zailon, Municipal Health
O cer of Sultan Kudarat, Maguindanao, upon the bodies of Tenorio and Mendoza on
October 3, 1977, were reduced into writing and reads as follows:
POST-MORTEM EXAMINATION REPORT
Post-mortem examination was performed at the Rural Health Center,
Sultan Kudarat, Maguindanao on October 3, 1977 at around 3:30 p.m. in the
presence of police o cers of Sultan Kudarat, Maguindanao and personnel
of the Health Center and other persons in the vicinity.
PERTINENT PERSONAL DATA:
Name: HERMINIGILDO TENORIO
Sex: Male

Age: 55 yrs. old

Height: 5'5"
Weight: 145 lbs.
C.S.: Married
Residence: Midsayap, N. Cotabato

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Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS

1. Avulsed cranial content at the level of forehead including eyeballs;

2. Wound — circular lacerate 3 inches in diameter T-T at lateral side of
right deltoie region;
3. Wound — 1 in. circular wound at the right forearm T-T 4 inches
below the elbow;

4. Comminuted fracture at right leg just below the knee cap;

5. Comminuted fracture at right leg just above ankle;
6. Wound — 1 in. circular non-penetrating at lateral side left arm;
7. Wound — 1/2 in. circular non-penetrating at left region.

PROBABLE CAUSE OF DEATH.

Hemorrhage severe secondary to multiple gunshot wounds.
Respectfully submitted:
(SGD.) TAEB ZAILON, M.D.
Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. "N")
POST-MORTEM EXAMINATION REPORT
Post-mortem examination report was performed at the Rural Health
Center, Sultan Kudarat, Maguindanao on October 3, 1977 at 3:30 p.m. in the
presence of police officers, personnel of the health center and other civilians.
PERTINENT PERSONAL DATA:

Name: NOLASCO MENDOZA

Sex: Male
Age: 45 years old
Height: 5'4"

Weight: 135 lbs.

C.S.: Married
Residence: Midsayap, North Cotabato
Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS

1. Wound — Circular, one inch wide, one inch above right eyebrow;
2. Wound — Circular, 1/2 inch wide, lateral part of left side of neck;
3. Wound — Circular, 3/4 inch wide, upper aspect of right deltoid
muscle;
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4. Wound — Circular, 1 1/2 inch wide, lateral aspect of right deltoid
muscle; and
5. Wound — Circular, 1 1/2 inch wide, lateral aspect of right breast 3
inches below arm pit.
PROBABLE CAUSE OF DEATH
Wounds, gunshot, multiple shock, secondary hemorrhage, external internal,
extensive.
Respectfully submitted:
(SGD.) TAEB A. ZAILON, M.D.
Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. "P")

Acting upon the letter request of the commanding o cer, Lt. Rodolfo Villanueva,
a ballistic test was conducted by Sgt. Leon Platoon of the P.C. Crime Laboratory at
Cotabato City, on the rearms issued to appellant Mandolado, Anacleto Simon end
Conrado Erinada. In said test, bullets were red from said guns and the empty shells,
called test specimen (T-05-1 to T-05-3), together with the empty shells recovered from
the scene of the crime called specimen evidence, and the 10 links of cal. 30 machine
gun, were forwarded to Camp Crame for Ballistic Examination (pp. 20-24, t.s.n., October
6, 1978). Sgt. Platoon marked the 8 shells of .30 caliber recovered from the scene of
the crime as HT-1 to HT-8 and the armalite shells as CM-9 to CM-13.
In the ballistic examination conducted by Reynaldo Pasatiempo of the Camp
Crame Criminal Laboratory, it was found that the caliber .30 shells recovered from the
scene of the crime (Exh. "HT-1 " to "HT-8") reveal identical impressions as the test
specimens of ve empty shells ("T-05-1" to "T-05-3") red from appellant Mandolado's
machine gun. Whereas the armalite shells recovered from the scene of the crime reveal
non-identical impressions with the shells red from the armalites of Conrado Simon
and Anacleto Erinada. He then concluded that the .30 caliber shells recovered from the
scene of the crime were red from the same machine gun issued to appellant
Mandolado (pp. 60-62, t.s.n., October 6, 1978)."
Appellants submit only one assigned error and that is, that the trial court erred in
convicting appellants Martin Mandolado and Julian Ortillano beyond reasonable doubt
as principal and accessory, respectively, of the crimes charged on the strength of the
prosecution's evidence totally disregarding the evidence of the defense. Appellants
contend that their guilt was not proven beyond reasonable doubt inasmuch as the
circumstantial evidence of the prosecution merely proved the fact of the deaths of
Tenorio and Mendoza and not as to the actual perpetrators of the crime; that the
evidence of the prosecution being weak on its own, the only link of the appellant
Mandolado to the killings is his extrajudicial sworn confession, Exhibit Q", which he
stoutly repudiates for being unlawfully taken under force and duress and in the failure
of the investigator to apprise him of his constitutional right to remain silent and to be
assisted by counsel. LLphil

It is contended by the defense that although the ballistic expert and the rearm
examiner testi ed that they conducted ballistic and rearm examinations, respectively
and that their nding was that the caliber .30 empty shells were red from the machine
gun issued to Martin Mandolado, the prosecution failed to prove that the "evidence
specimen" (Exh. "HT-1" to Exh. "HT-8") were the empty shells recovered from the scene
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of the crime, the prosecution not having presented any witness who recovered these
empty shells. It was not shown that these empty shells were recovered from the scene
of the crime nor that the slugs of these empty shells caused the gunshot wounds which
resulted in the death of the victims. Hence, the only link of appellant Martin Mandolado
with the empty caliber .30 shells was the fact that these shells were red from his
machine gun, yet the records disclose that Mandolado accidentally red his machine
gun at the Mintranco Terminal in Midsayap, North Cotabato, which is not the scene of
the crime, when he threatened the person who tried to steal his bag.
Appellant Mandolado's claim that he was not previously apprised of his
constitutional rights before he executed his extra-judicial confession, Exh. "Q", deserves
scant consideration. His claim is clearly belied by the opening statements appearing in
his sworn statement, which reads, thus:
"Preliminaries: Dft Martin Mandolado please be informed that you are
now under investigation by this unit in connection with the Shooting incident
that happened at National Highway particularly near the vicinity of the BPH
O ce at Sultan Kudarat, Maguindanao on or about 031300H October 1977.
Before I ask you any questions, you must understand your legal rights to wit:
You have the right to remain silent. Anything you say maybe used for or
against you as evidence. You have the right to the services of a lawyer of
your own choice. If you cannot afford a lawyer and you want one, a buyer
will be appointed for you before I ask you any questions.
Question: Are these all clearly understood by you?

Answer: Yes, sir.

2. Q Do you wish now to proceed with this investigation even in the
absence of a lawyer of your own choice?
A Yes sir.
3. Q Are you willing to give your statement without being forced,
coerced, intimidated or promised of any reward whatsoever?
A Yes sir.
4. Q Now that you are about to testify under oath, do you swear to
tell the truth?
A Yes sir.
WAIVER
'I have been advised of my legal right to remain silent; that anything I
say maybe used as evidence against me, and that I have the right to a
lawyer to be present with me while I am being questioned.
I understand these rights and I am willing to make a statement and
answer to questions. I do not want the assistance of a counsel and I
understand and know what I am doing. No promises or threats have been
made to me and no force or pressure of any and have been used against
me.'
(SGD.) MARTIN A. MANDOLADO
Dft 07A-2853 PA
(Affiant)"
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And with respect to the accused-appellant Julian Ortillano, the same preliminary
questions were made to him before his investigation and he answered similarly as his
co-accused Mandolado which is shown in Exhibit "R" and said Ortillano likewise
executed the same waiver as that of his co-accused, which is marked Exhibit "R-A".
The contention of both appellants that they signed their sworn statements
(Exhibits Q and R) because they were maltreated and forced, cannot be believed, not
only for failure on their part to present any evidence of compulsion, duress or violence
but also because they even failed to identify their investigators who allegedly in icted
maltreatment to them, much less complained to the o cials who administered the
oaths to their sworn statements of such maltreatment, if any. Moreover, the sworn
statements themselves contain signi cant and important details which the a ants
alone could have furnished, thereby clearly revealing the voluntariness of said
statements and rendering the same admissible as evidence. (People vs. Rosales, 108
SCRA 339; People vs. Regular, 108 SCRA 23, 39; People vs. Tintero, 111 SCRA 714;
People vs. Estero, 91 SCRA 93, 99). LexLib

The conviction of appellant Mandolado for double murder appears to be based

not only on his extra-judicial confession (Exhibit Q) but also upon the following
circumstances which proved that he did shot and kill the victims, Tenorio and Mendoza,
beyond peradventure of doubt. And these are listed in the People's Brief, to wit: "(1) he
repeatedly red his .30 caliber machine gun while intoxicated at the bus terminal in
Midsayap (pp. 11-12, t.s.n., February 21, 1979); (2) that he red at the Ford Fierra which
took them in the Midsayap junction (p. 51, Supra) hitting one of its passengers (p. 64,
t.s.n., July 24, 1978); (3) that Anacleto Simon while running away from the jeep driven by
the deceased, heard a burst of machine gun re coming from the direction of the jeep
(p. 42, t.s.n., February 21, 1979); (4) the result of the Ballistic examination showing that
the shells recovered from the scene of the crime were red from the gun issued to
appellant Mandolado (pp. 60-62, t.s.n., October 16, 1978); (5) the attempted ight of
both appellants from justice (pp. 120-123, t.s.n., April 16, 1979) and which act clearly
indicates guilt for the 'wicked eeth where no man pursueth but the righteous are as
bold as the lion', and lastly (6) appellant's own admission before the lower court that he
killed Tenorio and Mendoza although he claims the same to be accidental (pp. 7-8,
t.s.n., October 6, 1978)."
The killing of the two victims in the case at bar is correctly quali ed as murder,
there being present the qualifying circumstance of treachery which is alleged in the
informations. There is treachery when the offender commits any of the crimes against
the person, employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. (Art. 14, paragraph 16, Revised Penal
Code). The prosecution evidence is quite clear and explicit that when appellants
alighted from the jeep, the accused Mandolado immediately red his .30 caliber
machine gun at the occupants of the jeep, the victims Nolasco Mendoza and
Herminigildo Tenorio, and both of them died instantaneously on the spot, and from this
sudden means or manner of attack, it can reasonably be concluded that it tended
directly to insure its execution without risk to the appellant-assailant and also deprive
the victims of any chance or opportunity to defend themselves. We also rule that the
particular means or manner employed by the appellant-assailant was consciously or
deliberately sought and not a mere accidental circumstance resorted to on the spur of
the moment on the basis of the evidence that the appellant had previously and
repeatedly red his .30 caliber machine gun at the bus terminal in Midsayap and had
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also red the machine gun at the Ford Fiera which took them to Midsayap junction and
that appellants waited for sometime riding on board the jeep driven by Tenorio before
they ordered the jeep to stop, alight therefrom and then shoot the occupants therein.
While the informations allege as aggravating circumstances that of evident
premeditation and the use of superior strength, aside from treachery, We cannot agree
with the nding of the trial court that the aggravating circumstances of (1) advantage
was taken of his being a Draftee in the Philippine Army, and (2) abuse of con dence or
obvious ungratefulness were present in the commission of the crime. prLL

While it may be true that a soldier in the Armed Forces of the Philippines is
deemed as one who holds public position (U.S. vs. Gimenea, 24 Phil. 464, where a
constabulary soldier was held to be a public o cer), there is no persuasive showing
that herein appellants being draftees of the Army, m full military uniform and carrying
their high-powered rearms, facilitated the commission of the crimes they were
charged. It may be conceded that as draftees, the accused could easily hitchhike with
private vehicles, as in the case of the deceased Tenorio's owner-type jeep, but there is
no evidence that when they stopped the jeep the accused already intended to shoot the
occupants of the vehicle. As it was held in People vs. Pantoja 25 SCRA 468, 471 which
We reiterate that "There is nothing to show that the appellant took advantage of his
being a sergeant in the Philippine Army in order to commit the crimes. The mere fact
that he was in fatigue uniform and had an army ri e at the time is not su cient to
establish that he misused his public position in the commission of the crimes . . ."
There is also merit in appellants' contention that there could be no abuse of
con dence as the evidence on record showed the lack of con dence by the victims to
the appellants, that this con dence was abused, and that the abuse of the con dence
facilitated the commission of the crimes. In order that abuse of con dence be deemed
as aggravating, it is necessary that "there exists a relation of trust and con dence
between the accused and one against whom the crime was committed and the
accused made use of such a relationship to commit the crime." (People vs.
Comendador, 100 SCRA 155, 172). It is also essential that the con dence between the
parties must be immediate and personal such as would give that accused some
advantage or make it easier for him to commit the crime; that such con dence was a
means of facilitating the commission of the crime, the culprit taking advantage of the
offended party's belief that the former would not abuse said con dence (People vs.
Hanasan, 29 SCRA 534). In the instant case, there is absolutely no showing of any
personal or immediate relationship upon which con dence might rest between the
victims and the assailants who had just met each other then, Consequently, no
confidence and abuse thereof could have facilitated the crimes.
Similarly, there could have been no obvious ungratefulness in the commission of
the crime for the simple reason that the requisite trust of the victims upon the accused
prior to the criminal act and the breach thereof as contemplated under Article 14, par. 4
of the Revised Penal Code are manifestly lacking or non-existent. In all likelihood, the
accused Army men in their uniforms and holding their high-powered rearms cowed
the victims into boarding their jeep for a ride at machine gun point which certainly is no
source of gratefulness or appreciation.
The nding of the trial court that: "There is no doubt about Martin Mandolado's
state of intoxication. He was so drunk that even his three (3) companions armed with
M-16 armalite feared him. The same thing was true with the MPs," should credit said
accused with the mitigating circumstance of drunkenness but which the trial court
decision failed to appreciate in his favor. Accordingly, the penalty to be imposed upon
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the accused-appellant Mandolado shall be reduced in the computation thereof.
With respect to the accused-appellant Julian Ortillano who was found guilty as an
accessory in Criminal Cases No. 561 and No. 562 for having red his M-16 armalite
whenever Martin Mandolado red his machine gun and, according to the court, this
could be for no other purpose than to conceal or destroy the body of the crime and
making it appear that the victims were ghting them or running away or that somebody
else like the MNLF, rebels, NPA or bandits committed the crime, and for assisting in the
escape of the principal (Martin Mandolado) of the crime and sentenced in each of both
cases to serve imprisonment for a term of six (6) years of prision correccional as
minimum to seventeen (17) years of prision mayor as maximum, We nd and hold that
the accused-appellant Julian Ortillano should be convicted, not as an accessory, but as
an accomplice. cdrep

An accomplice cooperates in the execution of the offense by previous or

simultaneous acts, provided he has no direct participation in its execution or does not
force or induce others to commit it, or his cooperation is not indispensable to its
accomplishment (Art. 18, Revised Penal Code).
"To hold him liable, upon the other hand, as an accomplice, it must be
shown that he had knowledge of the criminal intention of the principal, which
may be demonstrated by previous or simultaneous acts which contributes to the
commission of the offense as aid thereto whether physical or moral (People vs.
Silvestre, et al., 56 Phil. 353, 356). As aptly stated in People vs. Tamayo (44 Phil.
38, 49): 'It is an essential condition to the existence of complicity, not only that
there should be a relation between the acts done by the principal and those
attributed to the person charged as accomplice, but it is further necessary that the
latter, with knowledge of the criminal intent, should cooperate with the intention
of supplying material or moral aid in the execution of the crime in an e cacious
way." (People vs. Custodio, 47 SCRA 289, 303 [1972]).

In the case at bar, Ortillano, by his acts, showed knowledge of the criminal design
of Mandolado. He was present when Mandolado tried to attack the driver of the Ford
Fiera with a knife and red at the vehicle hitting a female passenger (p. 4, Decision).
When Mandolado got angry and "cocked" his gun and ordered Tenorio to stop the jeep,
their two other companions, Simon and Erinada, immediately jumped off the jeep and
ran away, but Ortillano stayed. In a display of unity with Mandolado, Ortillano red his
armalite while they were riding in the jeep of the victim (p. 5, Decision). And Ortillano's
act of ring his gun towards the ground manifested his concurrence with the criminal
intent. In other words, Ortillano's simultaneous acts supplied, if not material, moral aid
in the execution of the crime in an e cacious way. Ortillano's presence served to
encourage Mandolado, the principal, or to increase the odds against the victims (U.S.
vs. Guevara, 2 Phil. 528 [1903]; People vs. Silvestre and Atienza, 56 Phil. 353 [1931]).
In convicting the accused Ortillano as an accomplice, We, however, appreciate
the mitigating circumstance of drunkenness in his favor, the same as We did to his co-
accused Martin Mandolado, the principal defendant.
In resume, the crime committed by the accused-appellant Martin Mandolado is
murder, quali ed by treachery. There being no aggravating circumstance but having
found and appreciated drunkenness which is not habitual as a mitigating circumstance,
the penalty prescribed under Article 248 of the Revised Penal Code which is reclusion
temporal in its maximum period to death shall be imposed in its minimum period.
Applying the Indeterminate Sentence Law, the accused shall be sentenced to
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imprisonment of ten (10) years and one (1) day of prision mayor as minimum to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal as
maximum in each case.
As to the accused-appellant Julian Ortillano, convicted as an accomplice to the
crime of murder, and appreciating in his favor the mitigating circumstance of
drunkenness which is not habitual, the penalty to be imposed upon him shall be one
degree lower than that imposed for murder (Article 52, Revised Penal Code), which will
be in the minimum period. Applying the Indeterminate Sentence Law, the accused
Ortillano shall be sentenced to imprisonment of four (4) years, two (2) months of
prision correccional as minimum to ten (10) years and one (1) day of prision mayor as
maximum in each case.
With respect to damages, for the death of Herminigildo Tenorio, the award of
P12,000.00 as compensatory damages and P20,000.00 for moral damages is hereby
affirmed.
For the death of Nolasco Mendoza, We reduce the award of P50,000.00 as
compensatory damages to P12,000.00 We also reduce the award of P100,000.00 as
moral damages to P20,000.00. LLjur

The liability of the appellants for the above damages which shall be paid to the
heirs of the victims shall be in solidum (Article 110, par. 1, Revised Penal Code).
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the trial court is
hereby MODIFIED. The accused-appellant Martin Mandolado is hereby found guilty
beyond reasonable doubt of the crime of murder in Criminal Case No. 561 for the killing
of Nolasco Mendoza and in Criminal Case No. 662, for the killing of Herminigildo
Tenorio. There being no aggravating circumstance but having found and appreciated
drunkenness which is not habitual as a mitigating circumstance, said accused is hereby
sentenced to suffer imprisonment of ten (10) years and one (1) day of prision mayor as
minimum to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal as maximum in each of the two cases.
The accused-appellant Julian Ortillano is hereby found guilty beyond reasonable
doubt as accomplice in the crime of murder in Criminal Case No. 561 for the killing of
Nolasco Mendoza and in Criminal Case No. 562 for the killing of Herminigildo Tenorio.
Similarly, there being no aggravating circumstance but having found and appreciated
the mitigating circumstance of drunkenness which is not habitual in his favor, said
accused is hereby sentenced to suffer imprisonment of four (4) years, two (2) months
of prision correccional as minimum to ten (10) years and one (1) day of prision mayor
as maximum in each case.
In Criminal Case No. 561 for the killing of Nolasco Mendoza, We sentence both
accused to pay the heirs of the victim P12,000.00 as compensatory damages and
P20,000.00 as moral damages. The liability of the accused shall be in solidum.
In Criminal Case No. 562 for the killing of Herminigildo Tenorio, We sentence
both accused to pay the heirs of the victim P12,000.00 as compensatory damages and
P20,000.00 for moral damages. The liability of the accused shall also be in solidum.
Costs against the appellants.
Judgment modified.
SO ORDERED.
Fernando (C.J.), Teehankee, Makasiar, Concepcion, Jr., Abad Santos, De Castro,
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Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Aquino, J., took no part.

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EN BANC

[G.R. No. L-30449. October 31, 1979.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. ANTONIO

GARCIA Y CABARSE alias "TONY MANOK" and REYNALDO ARVISO Y
REBELLEZA alias "RENE BISUGO" , defendants-appellants.

Wenceslao B. Trinidad for appellants.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista
and Solicitor Adolfo J. Diaz for appellee.

DECISION

ABAD SANTOS , J : p

This is an appeal from the decision of April 17, 1969 by the Circuit Criminal Court
at Pasig, Rizal, which found the accused guilty of murder and sentenced them to the
death penalty.
The legal verdict hinges on the testimony of the lone eyewitness for the
prosecution, Mrs. Corazon Dioquino Paterno, sister of the deceased, Apolonio Dioquino,
Jr. She testi ed that at the time of the incident, she resided at Ventanilla Street, Pasay
City. She lived at Pasay City for about ve months before moving to another dwelling at
Timog Avenue, Quezon City. While residing at Pasay City, she conceived a child and
during this period, it was not unusual for her, accompanied by her husband, to step out
of the house in the wee hours of the morning. They set out on these irregular walks
about five times.
During her residence at Pasay City, her brother Apolonio visited her family for
about twenty times. Sometimes her brother would stay instead at their parents' house
at Muntinlupa, Rizal. He usually spent his weekends in his residence at Bo. Balubad,
Porac, Pampanga. Apolonio and her husband were very close to each other; whenever
Apolonio paid them a visit, he usually slept in the house and sought their help on various
problems.
Before the incident which gave rise to this case, Corazon's husband informed her
that he saw Apolonio engaged in a drinking spree with his gang in front of an
establishment known as Bill's Place at M. de la Cruz Street, Pasay City. In her sworn
statement before the Pasay City Police executed on November 3,1968, Corazon
surmised that her husband must have been painting the town red in ("nag good time") in
that same place. Upon learning this information from her husband, Corazon obtained
permission to leave the house at 3:00 a.m. so she could fetch her brother. At that time,
she had not been aware that Apolonio was in Pasay City; she had been of the belief that
he was with his family in Pampanga. She went to fetch him because she wanted him to
escape the untoward in uence of his gang. In explaining the rationale for her noctural
mission, she employed in her sworn statement the following language: "Dahil itong si
Junior ay meron na kaming nabalitaan na naaakay ng barkada niya sa paggawa ng hindi
mabuti."
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On her way, as she rounded the corner of P.C. Santos Street, Corazon saw her
brother eeing a group of about seven persons, including the two accused, Antonio
Garcia and Reynaldo Arviso. She recognized the two accused because they were former
gangmates of her brother; in fact, she knew them before the incident by their aliases of
"Tony Manok" and "Rene Bisugo," respectively.
Corazon saw that the chase was led by the two accused, with Antonio carrying a
long sharp instrument. Later, in the course of giving her sworn statement before the
Pasay City police on November 3, 1968, Corazon positively identi ed Antonio and
Reynaldo, who were then at the o ce of the General Investigation Section, Secret
Service Division, Pasay City Police Department. She also stated that if she saw the other
members of the group again, perhaps she could likewise identify them. At the trial,
Corazon likewise pointed out the two accused. During the incident, she exerted efforts
to identify the other group members, taking care to conceal herself as she did so. She
heard a gunshot which caused her to seek cover.
When she ventured to look from where she was hiding, about 20 meters away,
she saw the group catch up with her brother and maltreat him. Some beat him with
pieces of wood, while others boxed him. Immediately afterwards, the group scampered
away in different directions. Antonio was left behind. He was sitting astride the
prostrate gure of Apolonio, stabbing the latter in the back with his long knife. Corazon
was not able to observe where Antonio later ed, for she could hardly bear to witness
the scene.
When Corazon mustered the courage to approach her brother, she saw that he
was bathed in a pool of his own blood. The incident threw her in a state of nervous
confusion, and she resolved to report the incident to her younger sister, who lived at
Lakandula Street, Pasay City. Her sister in turn decided to break the news to their father
at Muntinlupa.
Subsequently, Corazon learned that the police authorities were searching for her
brother's gangmates for having killed him. She also learned that the suspects were in
hiding. On the same day — October 19, 1968 — accompanied by her family, she went at
2:00 p.m. to the Police Department to inquire about her brother's corpse. They were
directed to the Funeraria Popular, where an autopsy was held. Sometime later, on
November 1, 1968, she transferred residence to Quezon City.
Dr. Mariano Cueva, Jr. testi ed that he conducted a postmortem examination on
the cadaver of the decedent Apolonio, and that he prepared the corresponding
Necropsy Report. Dr. Cueva found that the deceased suffered 22 stab wounds in the
different portions of his hips; in the front portion of the chest and neck; in the back
portion of the torso; and in the right hand. He testi ed that the wounds sustained by the
deceased brought about a massive hemorrhage which caused death. He also testi ed
that it is possible that the instrument marked as Exhibit "B" could have been used in
in icting the multiple stab wounds sustained by the deceased, except the stab wounds
on the neck.
Both the accused took refuge in the defense of alibi. Antonio Garcia claimed that
at that time of the incident — starting with the chase and ending with the victim's death
— in the morning of October 19, 1968, he was at a place called Pacita's Canteen which
adjoins Bill's Place at M. de la Cruz Street. Reynaldo Arviso claimed that in the evening
of the preceding night (October 18, 1968) he went on a drinking spree with his friends
at Pacita's Canteen. He went home at 10:30 p.m. and slept up to 7:00 a.m. of October
19, 1968. From 7:00 a.m. of that day, he performed his duties as a bus conductor by
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calling for passengers near Pacita's Canteen.
The trial court pinpointed the issue as revolving around the identity of the
persons who participated in the killing of the deceased. It banked on the testimony of
the witness, Corazon Dioquino, who positively identi ed the accused as participants in
the attack. Noting that "the defense did not even attempt to present any evil motive on
the part of the witness," the court concluded that "the two accused took part in the
perpetuation of the crime charged." It gave short shrift to the defense of alibi presented
by the two accused, noting that, by their own admission, the two accused were
residents of the vicinity of the crime.
In respect of the circumstances attending the crime it said:
But considering the aggravating circumstances of nighttime; superior
strength; and treachery, which three aggravating circumstances had been
su ciently established by the prosecution, the same cannot be offset by said
voluntary surrender to a person in authority of his agent, plus the uncontested
fact that deceased, Apolonio Dioquino, Jr. suffered no less than 22 stab wounds,
convincing evidence of the apparent criminal perversity of the accused, the court,
therefore, has no alternative but to impose the supreme penalty.

And rendered judgment as follows:

"IN VIEW OF THE FOREGOING, the Court nds the accused, Antonio Garcia
y Cabarse and Reynaldo Arviso y Rebelleza, GUILTY, beyond reasonable doubt, of
the crime of Murder under Article 248, of the Revised Penal Code, as charged
under Article 248, of the Revised Penal Code, as charged in the information, and
considering the aggravating circumstances surrounding the commission of the
crime, each one of them is hereby sentenced to suffer the penalty of DEATH.

The two accused are further ordered to indemnify the heirs of the
deceased, Apolonio Dioquino, Jr. in the amount of TWELVE THOUSAND
(P12,000.00) PESOS, jointly and severally; and to pay their proportionate share of
the costs."

In their Brief, the accused contended that the lower court erred: in not
considering nighttime and superior strength as absorbed in treachery: in nding
nighttime as an aggravating circumstance despite absolute absence of evidence that
nighttime was purposely sought to insure the execution of the crime; in nding superior
strength as an aggravating circumstance despite absence of evidence to sustain such
a nding; in nding treachery as an aggravating circumstance despite absence of
evidence to that effect; in not stating the qualifying circumstance of the alleged crime;
in holding that the accused Reynaldo Arviso stabbed and hit the victim when there is no
evidence as to the participation of the said accused Arviso in the execution of the
alleged crime; and in failing to consider the material inconsistencies, prejudice and
other circumstances in the uncorroborated testimony of the only eyewitness, rendering
said testimony not worthy of belief.
The assignment of errors by the accused is anchored on their attempt to
discredit the lone eyewitness for the prosecution, a function which, if successfully
undertaken, would totally obliterate the nexus between the accused and the crime. The
defense vigorously maintained that the testimony of the only eyewitness is a
fabrication, and that she was in fact absent from the scene which she described in both
her sworn statement and in her testimony at the trial.
The defense asserted that Corazon Dioquino's testimony was riddled by material
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inconsistencies. The defense sought to capitalize on the discrepancy of a sketch made
by Corazon and the sketch made by Pasay City Electrical Engineer Jaime Arriola.
Corazon's sketch shows Juan Sumulong Elementary School to be right in front of P.C.
Santos Street; while Arriola's sketch shows that the school is about 135 meters from
the corner of the street. The defense contended that the discrepancy was a deliberate
falsehood on the part of the witness.
Corazon testi ed that she was near the corner of P.C. Santos Street when she
saw her brother under chase in front of the school, and that she met the group in front
of the school in a matter of ve seconds, more or less. The defense assailed her
testimony on this point as incredible on the ground that the distance between the point
where she saw her brother being chased, up to the point where she met them, is 135
meters, and no human being can cover that distance in ve seconds. Moreover,
Corazon testi ed that she was 20 meters away from the place where the accused
caught up with her brother. Again, the defense criticized her testimony in this respect by
pointing out that the true distance is 175 meters.
The defense insisted that Corazon's sketch of the locale of the crime (Exhibit "1")
constitutes "the high point of falsity of her testimony." The defense sought to
substantiate this claim by arguing that from her sketch, it appears that she never
crossed paths with her brother or his pursuers. The witness testi ed that she saw her
brother at the point which is four to ve meters from the corner of P.C. Santos Street.
Yet she also testi ed that she saw the incident from 20 meters. The witness claimed
she hid after hearing the shot at a point which is 170 meters from the scene of the
crime. The defense argued that she could not have covered the distance in such a short
time, and that this belies her claim that she was only 20 meters from the scene of the
crime. The defense pointed out that Arriola's sketch (Exhibit "2") shows that the school
is 135 meters from the scene of the crime, and the point where the witness claimed she
viewed the crime is 170 meters from the scene of the crime, thus giving the lie to her
claim that she was 20 meters away.
The alleged inconsistencies in Corazon's testimony — which the defense makes
much of — are not irreconcilable with the physical facts. At the outset, it should not be
overlooked that Corazon was testifying as an eyewitness to the traumatic incident by
which her brother met a violent death at the hands of a mob. Naturally, Corazon can not
be expected to deliver a testimony which passes microscopic scrutiny and scrupulous
armchair analysis of the facts, conducted under circumstances far removed from the
turbulence and emotional color of the event as it actually transpired. Al contrari, if
Corazon's testimony were meticulously accurate with respect to distance covered and
the time taken to negotiate it, an impartial observer would wonder whether such
exactitude were not the product of previous rehearsal, if not of fabrication. In times of
stress, the human and is frequently overpowered by the ebb and ow of emotions in
turmoil; and it is only judicious to take into consideration the natural manifestations of
human conduct, when the physical senses are subdued by the psychological state of
the individual.
Corazon was a resident of Pasay City for only about ve months. She testi ed
that she is not familiar with the streets along M. de la Cruz Street. Moreover, Corazon
did not categorically testify that she covered the distance of 135 meters in ve
seconds. More accurately, she testi ed that she walked for a period of from ve to ten
seconds, more or less. Put in this way, the period was su cient to allow her to
negotiate the distance. Moreover, Corazon did not stay rooted to one spot while the
incident was taking place, but surreptitiously edged her way up to Magtibay Street,
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which is closer to the place of the killing.
The defense also claims that the delay which Corazon allowed to transpire,
before reporting the crime to the authorities and giving her sworn statement (on
November 3, 1968), is indicative of fabrication. The killing took place before dawn of
October 19, 1968. In the afternoon of the same day, Corazon and her family went to the
Police Department to inquire about the remains of her brother. Corazon already knew
that the police were taking steps to round up the killers. She incurred no fault in waiting
until the culprits were arrested before confronting them and giving her statement. It
would have been the better part of legal procedure if she had given her statement
earlier; but since she was only a 22-year old housekeeper at that time, she can not be
held to a higher standard of discretion.
The defense further contends that the failure to present Corazon's husband in
court indicates that Corazon was not actually at the scene of the crime at 3:00 o'clock
in the morning. If the defense felt that the husband had a contribution to make in the
cause of truth, there was nothing which prevented them from compelling his process
by summons. This they failed to do; and their omission should not be taken to re ect
adversely on the prosecution, who evidently believed that the husband's testimony was
unnecessary.
Finally, the defense claims that it was unnatural for Corazon, after viewing her
brother's body, to proceed to her sister's house one kilometer away, instead of
returning to her own house, which was just a block or so away. It is not unnatural for a
witness to a gruesome event, to choose to confer with a person bound to her by ties of
consanguinity, even if such a conference necessitates that she traverse a longer
distance. The exercise of judgment, on the spot, should not be gauged by reason
applied in hindsight with a metrical yardstick.
The next major burden which the defense undertook to assume was to contend
that the accused Reynaldo Arviso is innocent because there is no evidence as to his
participation in the execution of the crime. It is claimed that there is absolute absence
of evidence to show that Reynaldo was a direct participant and that the only evidence
against him is that he was seen pursuing the victim. However, the nding of Reynaldo's
guilt stems, not from his direct participation in the criminal execution, but from his
participation in the conspiracy to kill the deceased. His participation in the conspiracy
is supported by Corazon's testimony that he and Antonio were the leaders of the pack
following closely at the heels of the victim.
It is well established that conspiracy may be inferred from the acts of the
accused themselves, when such acts point to a joint purpose and design. A concerted
assault upon the victim by the defendants may indicate conspiracy. (PP v. Monroy &
Idica, L-11177, Oct. 30, 1958, 104 Phil. 759). Conspiracy exists if, at the time of the
commission of the offense, the defendants had the same criminal purpose and were
united in its execution. (PP v. Datu Dima Binahasing, L-4837, April 28, 1956, 98 Phil.
902). Those who are members of the band of malefactors by which a murder is
committed and are present at the time and place of the commission of the crime, thus
contributing by their presence to augment the power of the band and to aid in the
successful realization of the crime, are guilty as principals even if they took no part in
the material act of killing the deceased. (US v. Abelinde, No. 945, Dec. 10, 1902, 1 Phil.
568; People v. Carunungan, L-13283, Sept. 30, 1960, 109 Phil. 534). To establish
conspiracy, it is not essential that there be proof as to previous agreement to commit a
crime. It is su cient that the malefactors have acted in concert, pursuant to the same
objective. (PP vs. San Luis, L-2365, May 29, 1950, 86 Phil. 485).
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Conspiracy need not be established by direct evidence of acts charged, but may
and generally must be proven by a number of inde nite acts, conditions and
circumstances which vary according to the purpose to be accomplished. If it be proved
that two or more persons aimed by their acts towards accomplishment of the same
unlawful object, each doing a part so that their acts, though apparently independent,
were in fact connected and cooperative, indicating a closeness of personal association
and concurrence of sentiment, a conspiracy maybe inferred though no actual meeting
among them to concert is proven (PP v. Colman, L-6652-54, Feb. 28, 1958, 103 Phil. 6).
A conspiracy may be entered into after the commencement of overt acts leading to the
consummation of the crime. (PP v. Barredo, L-2728, Dec. 29, 1950, 87 Phil. 800).
Conspiracy implies concert of design and not participation in every detail of execution.
(PP v. Carbonel, L-24177, March 15, 1926, 48 Phil. 868; PP v. Danan, L-1766, March 31,
1949, 83 Phil. 252).
When a group of seven men, more or less, give chase to a single unarmed
individual running for his life, and they overtake him and in ict wounds on his body by
means of shooting, stabbing, and hitting with pieces of wood, there is conspiracy to kill;
and it does not detract from their status as conspirators that there is no evidence of
previous agreement, it being su cient that their wills have concurred and they labored
to achieve the same end. llcd

The defense submits that the failure of the lower court to specify the qualifying
circumstance in the crime of murder is violative of the Constitution and the Rules of
Court. We nd no such in rmity. Since the principle concerned is readily understood
from the facts, the conclusion and the penalty imposed, an express speci cation of the
statute or exposition of the law is not necessary." (People vs. Silo, L-7916, May 25,
1956, 99 Phil. 216). In the absence of a speci cation by the trial court, the defense
surmised that the qualifying circumstance in this case is evident premeditation; but the
defense argued that evident premeditation was not shown. We agree. Under normal
conditions, conspiracy generally presupposes premeditation. But in the case of implied
conspiracy, evident premeditation may not be appreciated, in the absence of proof as
to how and when the plan to kill the victim was hatched or what time elapsed before it
was carried out, so that it can not be determined if the accused had "su cient time
between its inception and its ful llment dispassionately to consider and accept the
consequences." There should be a showing that the accused had the opportunity for
re ection and persisted in executing his criminal design. (PP v. Custodio, L-7442,
October 24, 1955, 97 Phil. 698; PP v. Mendoza and Sinu-ag, L-4146 and L-4147, March
28, 1952, 91 Phil. 58; PP v. Yturiaga, L-2816, May 31, 1950, 86 Phil. 534; PP v. Lozada,
No. 46998, Nov. 16, 1940, 70 Phil. 525; PP v. Upao Moro, L-6771, May 28, 1957, 101
Phil. 1226; PP v. Sakam, No. 41566, Dec. 7, 1934, 61 Phil. 27; PP v. Peralta, L-19069,
Oct. 29, 1968, 25 SCRA 759; PP v. Pareja, L-21937, Nov. 29, 1969, 30 SCRA 693).
Even in the absence of evident premeditation, the crime of murder in this case
might still be quali ed by treachery, which is alleged in the information. But the defense
argued that treachery was not present. We are so convinced. It is an elementary axiom
that treachery can in no way be presumed but must be fully proven. (US v. Asilo, No.
1957, Jan. 30, 1905, 4 Phil. 175; US v. Arciga, No. 1129, April 6, 1903, 2 Phil. 110; PP v.
Durante, No. 31101, Aug. 23, 1929, 53 Phil. 363; PP v. Pelago, L-24884, Aug. 31, 1968,
24 SCRA 1027). Where the manner of the attack was not proven, the defendant should
be given the bene t of the doubt, and the crime should be considered homicide only.
(Carpio, 83 Phil. 509; Amansec, 80 Phil. 424).
I n People vs. Metran(L-4205, July 27, 1951, 89 Phil. 543). The aggravating
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circumstances of aid of armed men, abuse of superiority, and nocturnity, were
considered as constituting treachery, which quali ed the crime as murder, since there
was no direct evidence as to the manner of the attack. However, in this case we believe
that the correct qualifying circumstance is not treachery, but abuse of superiority. Here
we are confronted with a helpless victim killed by assailants superior to him in arms
and in numbers. But the attack was not sudden nor unexpected, and the element of
surprise was lacking. The victim could have made a defense; hence, the assault involved
some risk to the assailants. There being no showing when the intent to kill was formed,
it can not be said that treachery has been proven. We believe the correct rule is found in
People vs. Proceso Bustos (No 17763, July 23, 1923, 45 Phil. 9), where alevosia was
not appreciated because it was deemed included in abuse of superiority.
We nd that abuse of superiority attended the offense, following a long line of
cases which made this nding on parallel facts. Our jurisprudence is exempli ed by the
holding that where four persons attacked an unarmed victim but there was no proof as
to how the attack commenced and treachery was not proven, the fact that there were
four assailants would constitute abuse of superiority. (People vs. Lasada, No. 6742,
Jan. 26, 1912, 21 Phil. 287; US v. Bañagale, No. 7870, Jan. 10, 1913, 24 Phil. 69).
However, the information does not allege the qualifying circumstance of abuse of
superiority; hence, this circumstance can only be treated as generic aggravating.
(People v. Acusar, L-1798, Dec. 29, 1948, 82 Phil. 490; People v. Beje, L-8245, July 19,
1956, 99 Phil. 1052; People v. Bautista, L-23303, May 20, 1969, 28 SCRA 184).
The offense took place at 3:00 o'clock in the morning. It may therefore be said
that it was committed at night, which covers the period from sunset to sunrise,
according to the New Civil Code, Article 13. Is this basis for nding that nocturnity is
aggravating? The Revised Penal Code, Article 14, Provides that it is an aggravating
circumstance when the crime is committed in the nighttime, whenever nocturnity may
facilitate the commission of the offense. There are two tests for nocturnity as an
aggravating circumstance: the objective test under which nocturnity is aggravating
because it facilitates the commission of the offense; and the subjective test, under
which nocturnity is aggravating because it was purposely sought by the offender.
These two tests should be applied in the alternative.
In this case, the subjective test is not passed because there is no showing that
the accused purposely sought the cover of nighttime. Next, we proceed and apply the
objective test, to determine whether nocturnity facilitated the killing of the victim. A
group of men were engaged in a drinking spree, in the course of which one of them ed,
chased by seven others. The criminal assault on the victim at 3:00 a.m. was invited by
nocturnal cover, which handicapped the view of eyewitnesses and encouraged impunity
by persuading the malefactors that it would be di cult to determine their identity
because of the darkness and the relative scarcity of people in the streets. These
circumstances combine to pass the objective test, and we nd that nocturnity is
aggravating because it facilitated the commission of the offense. Nocturnity enticed
those with the lust to kill to follow their impulses with the false courage born out of the
belief that they could not be readily identified.
The information alleges that the crime of murder was attended by the two
qualifying circumstances of treachery and evident premeditation. Neither of these
qualifying circumstances was proved; hence, the killing can not be qualified into murder,
and constitutes instead the crime of homicide, which is punished by reclusion temporal.
It is not controverted that the accused voluntarily surrendered to the authorities; they
are therefore entitled to the mitigating circumstance of voluntary surrender. This lone
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mitigating circumstance, offset by the two generic aggravating circumstances of abuse
of superiority and nocturnity, produces the result that in the crime of homicide, one
aggravating circumstance remains. prLL

WHEREFORE, the judgment of the court a quo is hereby modi ed in that the two
accused, Antonio Garcia y Cabarse and Reynaldo Arviso y Rebelleza, are sentenced to
undergo an indeterminate imprisonment of 10 years as minimum to 18 years as
maximum, but in all other respects affirmed.
SO ORDERED.
Fernando (C.J.), Barredo, Makasiar, Antonio, Aquino, Concepcion Jr, Santos,
Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.
Teehankee, J., took no part.

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FIRST DIVISION

[G.R. No. 175881. August 28, 2007.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . ARMANDO

RODAS 1 and JOSE RODAS, SR., 2 accused-appellants.

DECISION

CHICO-NAZARIO , J : p

Assailed before Us is the Decision 3 of the Court of Appeals in CA-G.R. CR-HC No.
00289 which a rmed in toto the decision 4 of the Regional Trial Court (RTC) of Sindangan,
Zamboanga del Norte, Branch XI, convicting accused-appellants Armando Rodas and Jose
Rodas, Sr. of the crime of Murder.
For the death of one Titing Asenda, accused-appellant Jose Rodas, Sr., together with
his sons Charlito, Armando, and Jose Jr., all surnamed Rodas, were charged with murder in
an information which reads: DCSTAH

That, in the evening, on or about the 9th day of August, 1996, in the
municipality of Siayan, Zamboanga del Norte, within the jurisdiction of this
Honorable Court, the above-named accused, armed with a hunting knife, rearm,
chako and bolo, conspiring, confederating together and mutually helping one
another, with intent to kill, by means of treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack, assault, beat, stab and
hack one TITING ASENDA, thereby in icting upon him multiple wounds on the
vital parts of his body which caused his death shortly thereafter; that as a result
of the commission of the said crime the heirs of the herein victim suffered the
following damages, viz:

a) Indemnity for victim's death P50,000.00

b) Loss of earning capacity P30,000.00
—————
P80,000.00

CONTRARY TO LAW (Viol. of Art. 248, Revised Penal Code), with the
aggravating circumstances of nocturnity and abuse of superior strength. 5 ECcTaH

When arraigned on 22 November 1996, the four accused, assisted by counsel de

oficio, pleaded not guilty to the crime charged. 6
By agreement of the parties, pre-trial conference was terminated on 6 December
1996. 7 Thereafter, trial on the merits commenced.
The prosecution presented ve witnesses, namely: Alberto Asonda, Danilo Asenda,
Ernie Anggot, Blessie Antiquina and PO1 Pablo Yosores. TCADEc

Before the prosecution could rest its case, accused Charlito Rodas 8 and Jose
Rodas, Jr. 9 withdrew their previous pleas of "NOT GUILTY" and entered their respective
pleas of "GUILTY" for the lesser crime of Homicide. Both were sentenced to suffer the
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indeterminate penalty of 17 years, 4 months and 1 day to 20 years and were each ordered
to indemnify the heirs of the victim in the amount of P12,500.00 as damages. 1 0
The prosecution formally offered Exhibits "A" to "H," inclusive, with sub-markings. 11
IDSEAH

From the evidence adduced, the prosecution's version of the killing is as follows:
On 9 August 1996, Titing Asenda, a resident of Boyos, Sindangan, Zamboanga del
Norte, was at Milaub, Denoyan, Zamboanga del Norte, to help his brother, Danilo Asenda, in
the harvesting of the latter's corn. ScHAIT

On the same day, at around 8:00 in the evening, a bene t dance at Milaub, which was
sponsored by Boboy Raquilme, 1 2 was being held. Among those roaming in the vicinity of
the dance hall were Alberto Asonda and Ernie Anggot. They stopped and hung out near the
fence to watch the affair. Titing Asenda was standing near them. They saw Charlito Rodas,
Armando Rodas, Jose Rodas, Jr., and Jose Rodas, Sr. surround Titing Asenda. Suddenly,
without a word, Charlito Rodas, armed with a hunting knife, stabbed Titing at the back.
Armando Rodas then clubbed Titing with a chako hitting him at the left side of the nape
causing him to fall. Thereafter, Jose Rodas, Sr. handed to Jose Rodas, Jr. a bolo which the
latter used in hacking Titing, hitting him on the left elbow. Alberto Asonda and Ernie
Anggot tried to help Titing but Armando Rodas prevented them by pointing a gun at them
and firing it towards the sky.
After the assailants left, Alberto Asonda and Ernie Anggot approached Titing
Asenda who was already dead. They informed Danilo Asenda that his brother was killed.
The police arrived the following day after being informed of the incident. HDATCc

On the part of the defense, accused-appellants Armando Rodas and Jose Rodas, Sr.,
and Vilma Rodas, the former's wife, took the witness stand. The defense rested its case
without marking and offering any documentary evidence.
Defense evidence showed that only Charlito Rodas and Jose Rodas, Jr. killed Titing
Asenda. Appellant Jose Rodas, Sr. denied any participation in the killing of Titing Asenda
claiming he was not present in the bene t dance and that he was in his home with his wife
and infant granddaughter when the killing happened. He revealed that on the night of the
killing, his son, Charlito Rodas, who was carrying a hunting knife, arrived and told him he
killed somebody. He then brought his son to the municipal building of Siayan to surrender
him to the police authorities. IcSHTA

Appellant Armando Rodas likewise denied he was one of those who killed Titing
Asenda. He claimed that at the time of the killing, he was in his house sleeping with his
children. He denied using a chako and ring a gun. He insisted it was his brothers, Charlito
and Jose Jr., who killed Titing Asenda because they pleaded guilty.
To bolster the testimony of the appellants, Vilma Rodas testi ed that she was at the
bene t dance when the killing happened. Armando and Jose Sr., she claimed, did not
participate in the killing. She said Charlito stabbed Titing while Jose Jr. merely punched the
victim. HAICcD

On 9 July 1998, the trial court promulgated its decision nding accused-appellants
Armando Rodas and Jose Rodas, Sr. guilty of the crime of Murder. The decretal portion of
the decision reads:
WHEREFORE, the Court nds the accused Jose Rodas, Sr. and Armando
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Rodas guilty beyond reasonable doubt of MURDER as de ned and penalized
under the Revised Penal Code, as amended under Section 6 of Republic Act No.
7659 and hereby sentenced them to RECLUSION PERPETUA each and to
indemnify the heirs of the deceased, Titing Asenda, P12,500.00 each or a total of
P25,000.00. IcDCaT

COST de oficio. 1 3

In nding accused-appellants guilty, the trial court gave credence to the testimonies
of eyewitnesses Alberto Asonda and Ernie Anggot. It found accused-appellants and the
other two accused conspired in the killing of the victim and that treachery attended the
same. It gave no weight to accused-appellants' defense of alibi and denial arguing that
they were positively identi ed as the perpetrators and that they failed to adduce evidence
that it was physically impossible for them to be present at the crime scene when the killing
happened. It added that their unsubstantiated denial will not be given greater evidentiary
value over the testimonies of credible witnesses who testified on affirmative matters. HTDAac

With a Notice of Appeal 1 4 led by accused-appellants, the trial court forwarded the
entire records of the case to this Court. 1 5 However, pursuant to our ruling in People v.
Mateo, 1 6 the case was remanded to the Court of Appeals for appropriate action and
disposition.
In its decision dated 28 July 2006, the Court of Appeals a rmed in toto the RTC's
decision. 1 7 IcaHTA

With the Court of Appeals' a rmance of their convictions, accused-appellants are

now before this Court via a notice of appeal. With the appeal being timely led, the records
of the case were elevated to this Court.
In our Resolution 1 8 dated 19 February 2007, the parties were required to le their
respective supplemental briefs, if they so desired, within 30 days from notice. Accused-
appellants manifested that since they had already led the Appellants' Brief, as well as
Reply and Supplemental Reply Brief, they are dispensing with the ling of the Supplemental
Brief because the latter will merely contain a reiteration of the arguments substantially
discussed in the former. 1 9 On the part of the O ce of the Solicitor General, it manifested
that considering that the guilt of the appellants had already been discussed in the
Appellee's Brief, it was waiving its right to file a Supplemental Brief. 2 0 aDSTIC

Accused-Appellants assign as errors the following:

I

THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANTS WERE

ALSO PRESENT AT THE DANCE AND PARTICIPATED IN ATTACKING THE
VICTIM. CIHAED

II

ASSUMING ARGUENDO THAT THE ACCUSED ARE GUILTY, THEY ARE ONLY
LIABLE FOR THE CRIME OF HOMICIDE.

On the rst assigned error, appellants contend that the testimonies of prosecution
witnesses Alberto Asonda and Ernie Anggot should not be believed because they did not
see the start of the assault on Titing, and all they saw was him injured and lying down on
the oor. They insist that Asonda and Anggot could not have seen the killing because only
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a Petromax lighted the place. ATaDHC

After a careful and meticulous review of the records of the case, we nd no reason
to reverse the ndings of the trial court, as a rmed by the Court of Appeals. We a rm
appellants' conviction.
We nd the evidence of the prosecution to be more credible than that adduced by
appellants. When it comes to credibility, the trial court's assessment deserves great
weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of
some fact or circumstance of weight and in uence. The reason is obvious. Having the full
opportunity to observe directly the witnesses' deportment and manner of testifying, the
trial court is in a better position than the appellate court to evaluate properly testimonial
evidence. 2 1 ACcHIa

It is to be noted that the Court of Appeals a rmed the ndings of the RTC. In this
regard, it is settled that when the trial court's ndings have been a rmed by the appellate
court, said ndings are generally conclusive and binding upon this Court. 2 2 We nd no
compelling reason to deviate from their findings.
The Court nds that Alberto Asonda and Ernie Anggot witnessed the killing of Titing
Asenda by Charlito Rodas, Armando Rodas, Jose Rodas, Jr. and Jose Rodas, Sr. When
Titing was killed, Asonda and Anggot were near him. Contrary to the claim of the defense
that the place where the killing occurred was not lighted enough for the assailants to be
identi ed, the place was su ciently lighted by a Petromax as testi ed to by Vilma Rodas.
2 3 EaSCAH

Appellants make a big issue about the absence of a medical examination. Should
they be exonerated because of this? The answer is no.
A medical examination or a medical certi cate is not indispensable in the case at
bar. Its absence will not prove that appellants did not commit the cime charged. They can
still be convicted by mere testimonial evidence, if the same is convincing. In the case at
bar, the testimonies of the two eyewitnesses, which the Court found to be credible, are
sufficient to prove the crime and its perpetrators. TEHIaA

Appellants' defense of denial and alibi must likewise fail. Mere denial, if
unsubstantiated by clear and convincing evidence, has no weight in law and cannot be
given greater evidentiary value than the positive testimony of a victim. 2 4 Denial is
intrinsically weak, being a negative and self-serving assertion. 2 5
Denial cannot prevail over the positive testimonies of prosecution witnesses who
were not shown to have any ill motive to testify against appellants. Absence of improper
motive makes the testimony worthy of full faith and credence. 2 6 In this case, appellants,
who were positively identi ed, testi ed that Asonda and Anggot had no ill motive to testify
against them. 2 7 Moreover, ill motive has no bearing when accused were positively
identi ed by credible eyewitnesses. Motive gains importance only when the identity of the
culprit is doubtful. 2 8 ICHcaD

Appellants also interposed the defense of alibi. No jurisprudence in criminal law is

more settled than that alibi is the weakest of all defenses for it is easy to contrive and
di cult to disprove, and for which reason it is generally rejected. 2 9 For the defense of alibi
to prosper, it is imperative that the accused establish two elements: (1) he was not at the
locus criminis at the time the offense was committed; and (2) it was physically impossible
for him to be at the scene at the time of its commission. 3 0 Appellants failed to do so.
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In the case at bar, both appellants claimed that on the night Titing Asenda was killed,
they were one kilometer away. Thus, it was not possible for them to have been at the scene
of the crime when the crime was committed. The defense witnesses, however, gave
con icting testimonies. Appellant Armando said his residence was more or less one
kilometer away from the crime scene 3 1 but Jose Sr. said it was only 50 meters away. 3 2
Jose Sr. 3 3 said the house of Charlito was only 50 meters away from the crime scene but
Armando said it was one kilometer away. 3 4 Armando said his wife was in Dipolog City
when the killing happened, 3 5 but his wife said she witnessed the killing. 3 6 Armando said
he and all the other accused lived in separate houses, 3 7 but his wife revealed that Charlito
lives with Jose Sr. 3 8 Vilma Rodas said after the killing, she immediately went home and
told Armando that his brothers killed somebody 3 9 but her husband said he only learned of
it the next morning. 4 0 What is more incredible is the fact that despite the testimony of
Vilma Rodas that she informed Armando of the killing, the latter never testi ed to this
effect. All these negate appellants' claim that they were not at the crime scene when the
killing took place. ADEHTS

The information alleged that appellants, together with Charlito and Jose Jr.,
conspired in killing Titing Asenda. Article 8 of the Revised Penal Code provides that there
is conspiracy when two or more persons agree to commit a crime and decide to commit
it. It is hornbook doctrine that conspiracy must be proved by positive and convincing
evidence, the same quantum of evidence as the crime itself. 4 1 Indeed, proof of previous
agreement among the malefactors to commit the crime is not essential to prove
conspiracy. It is not necessary to show that all the conspirators actually hit and killed the
victim; what is primordial is that all the participants performed speci c acts with such
closeness and coordination as to indicate a common purpose or design to bring about the
victim's death. 4 2 Once conspiracy is established, all the conspirators are answerable as
co-principals regardless of their degree of participation. In the contemplation of the law,
the act of one becomes the act of all, and it matters not who among the accused in icted
the fatal blow on the victim. 4 3
In this case, conspiracy was convincingly proven beyond reasonable doubt. All the
accused had the same purpose and acted in unison when they assaulted the victim.
Surrounding the victim, Charlito stabbed Titing Asenda at the back with a hunting knife.
Armando next clubbed the victim with a chako, hitting him on the left side of the nape,
causing him to fall to the ground. Jose Sr. then handed a bolo to Jose Jr. who used it in
hacking the victim. IaDcTC

On the second assigned error, appellants argue that assuming arguendo they are
guilty, they are liable only for the crime of homicide, not murder. They contend that
treachery was absent since they, together with Charlito and Jose Jr., met the victim
casually in the dance hall.
The qualifying circumstance of treachery attended the killing. The essence of
treachery is the sudden and unexpected attack by the aggressor on an unsuspecting
victim, depriving the latter of any real chance to defend himself, thereby ensuring its
commission without risk to the aggressor, and without the slightest provocation on the
part of the victim. 4 4 I n People v. Villonez , 4 5 we ruled that treachery may still be
appreciated even when the victim was forewarned of danger to his person. What is
decisive is that the execution of the attack made it impossible for the victim to defend
himself or to retaliate. EAaHTI

In the case under review, the victim was completely unaware that he was going to be
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attacked. 4 6 He was not forewarned of any danger to himself as there was no altercation or
disagreement between the accused and the victim. If treachery may be appreciated even
when the victim was forewarned, more so should it be appreciated when the victim was
not, as in the case at bar. The suddenness of the attack, the number of the accused and
their use of weapons against the unarmed victim prevent the possibility of any defense or
retaliation by the victim. The fact that the victim was already sprawled on the ground and
still Jose Jr. hacked him with a bolo clearly constitutes treachery.
The information also alleged that evident premeditation, nocturnity and abuse of
superior strength attended the killing. IaAHCE

For evident premeditation to be appreciated, the following elements must be

established: (1) the time when the accused decided to commit the crime; (2) an overt act
manifestly indicating that he has clung to his determination; and (3) su cient lapse of
time between decision and execution to allow the accused to re ect upon the
consequences of his act. 4 7 Like any other circumstance that quali es a killing as murder,
evident premeditation must be established by clear and positive proof; that is, by proof
beyond reasonable doubt. 4 8 The essence of premeditation is that the execution of the
criminal act was preceded by cool thought and re ection upon the resolution to carry out
the criminal intent during a space of time su cient to arrive at a calm judgment. 4 9 In the
case at bar, the prosecution failed to show the presence of any of these elements.
The aggravating circumstance of nocturnity cannot be considered against
appellants. This circumstance is considered aggravating only when it facilitated the
commission of the crime, or was especially sought or taken advantage of by the accused
for the purpose of impunity. The essence of this aggravating circumstance is the
obscuridad afforded by, and not merely the chronological onset of, nighttime. Although the
offense was committed at night, nocturnity does not become a modifying factor when the
place is adequately lighted and, thus, could no longer insure the offender's immunity from
identi cation or capture. 5 0 In the instant case, the prosecution failed to show that
nighttime facilitated the commission of the crime, or was especially sought or taken
advantage of by the accused for the purpose of impunity. The crime scene was su ciently
lighted by a Petromax which led to the identification of all the accused. IEcDCa

The aggravating circumstance of abuse of superior strength attended the killing.

There was glaring disparity of strength between the victim and the four accused. The
victim was unarmed while the accused were armed with a hunting knife, chako and bolo. It
is evident that the accused took advantage of their combined strength to consummate the
o f f e n s e . This aggravating circumstance, though, cannot be separately
appreciated because it is absorbed in treachery . In People v. Parreno, 5 1 we decreed:
As regards the aggravating circumstance of abuse of superior strength,
what should be considered is not that there were three, four, or more assailants as
against one victim, but whether the aggressors took advantage of their combined
strength in order to consummate the offense. While it is true that superiority in
number does not per se mean superiority in strength, the appellants in this case
did not only enjoy superiority in number, but were armed with a weapon, while the
victim had no means with which to defend himself. Thus, there was obvious
physical disparity between the protagonists and abuse of superior strength on the
part of the appellants. Abuse of superior strength attended the killing when the
offenders took advantage of their combined strength in order to consummate the
offense. However, the circumstance of abuse of superior strength cannot be
appreciated separately, it being necessarily absorbed in treachery.ITAaHc

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As a nal attempt to lower their conviction to Homicide, appellants, citing People v.
Alba, 5 2 argue that although treachery was alleged in the Information and proven according
to the trial court, the same was not speci ed as a qualifying circumstance. Such argument
fails.
In People v. Aquino , 5 3 we have held that even after the recent amendments to the
Rules of Criminal Procedure, qualifying circumstances need not be preceded by
descriptive words such as "qualifying" or "quali ed by" to properly qualify an offense. We
explained: aHcACI

Section 8 of Rule 110 requires that the 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." Section 8 merely requires the Information to specify the
circumstances. Section 8 does not require the use of the words "qualifying" or
"qualified by" to refer to the circumstances which raise the category of an offense.
It is not the use of the words "qualifying" or "quali ed by" that raises a crime to a
higher category, but the speci c allegation of an attendant circumstance which
adds the essential element raising the crime to a higher category.
In the instant case, the attendant circumstances of minority and
relationship were speci cally alleged in the Information precisely to qualify the
offense of simple rape to quali ed rape. The absence of the words "qualifying" or
"quali ed by" cannot prevent the rape from qualifying as a heinous crime
provided these two circumstances are speci cally alleged in the Information and
proved beyond reasonable doubt. HacADE

We therefore reiterate that Sections 8 and 9 of Rule 110 merely require that
the Information allege, specify or enumerate the attendant circumstances
mentioned in the law to qualify the offense. These circumstances need not be
preceded by the words "aggravating/qualifying," "qualifying," or "quali ed by" to
be considered as qualifying circumstances. It is su cient that these
circumstances be speci ed in the Information to apprise the accused of the
charges against him to enable him to prepare fully for his defense, thus
precluding surprises during the trial. When the prosecution speci cally alleges in
the Information the circumstances mentioned in the law as qualifying the crime,
and succeeds in proving them beyond reasonable doubt, the Court is constrained
to impose the higher penalty mandated by law. This includes the death penalty in
proper cases.
xxx xxx xxx

To guide the bench and the bar, this Resolution clari es and resolves the
issue of how to allege or specify qualifying or aggravating circumstances in the
Information. The words "aggravating/qualifying," "qualifying," "quali ed by,"
"aggravating," or "aggravated by" need not be expressly stated as long as the
particular attendant circumstances are specified in the Information. 5 4 ACaDTH

Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659,
5 5 murder is punishable by reclusion perpetua to death. There being neither mitigating nor
aggravating circumstance in the commission of the felony, appellants should be
sentenced to reclusion perpetua, conformably to Article 63(2) of the Revised Penal Code.
We now go to the award of damages. When death occurs due to a crime, the
following damages may be awarded: (1) civil indemnity ex delicto for the death of the
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victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages;
and (5) temperate damages. 5 6 cHSIAC

Civil indemnity is mandatory and granted to the heirs of the victim without need of
proof other than the commission of the crime. 5 7 We a rm the award of civil indemnity
given by the trial court and the Court of Appeals. Under prevailing jurisprudence, 5 8 the
award of P50,000.00 to the heirs of the victim as civil indemnity is in order. Both the trial
court and the Court of Appeals awarded P25,000.00 as civil indemnity because the two
accused who pleaded guilty to the lower offense of homicide were ordered to pay
P25,000.00 or half of the P50,000.00 civil indemnity. Considering that half of the
P50,000.00 was already paid, appellants should therefore pay only the difference.
As to actual damages, the heirs of the victim are not entitled thereto because said
damages were not duly proved with reasonable degree of certainty. 5 9 However, the award
of P25,000.00 in temperate damages in homicide or murder cases is proper when no
evidence of burial and funeral expenses is presented in the trial court. 6 0 Under Article
2224 of the Civil Code, temperate damages may be recovered as it cannot be denied that
the heirs of the victim suffered pecuniary loss although the exact amount was not proved.
6 1 cCDAHE

Anent moral damages, the same is mandatory in cases of murder and homicide,
without need of allegation and proof other than the death of the victim. 6 2 The award of
P50,000.00 as moral damages is in order.
The heirs of the victim are likewise entitled to exemplary damages in the amount of
P25,000.00 since the qualifying circumstance of treachery was firmly established. 6 3 cICHTD

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in
CA-G.R. CR-HC No. 00289 is AFFIRMED WITH MODIFICATION. Appellants Armando Rodas
and Jose Rodas, Sr. are found GUILTY beyond reasonable doubt of murder as de ned in
Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, quali ed by
treachery. There being no aggravating or mitigating circumstance in the commission of the
crime, they are hereby sentenced to suffer the penalty of reclusion perpetua. The
appellants are ORDERED to pay, jointly and severally, the heirs of Titing Asenda the amount
of P25,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate
damages and P25,000.00 as exemplary damages. Costs against the appellants.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Nachura and Reyes, JJ., concur.

Footnotes
1. Middle name is Martinez.
2. Middle name is Marinduque.

3. Rollo, pp. 141-152; penned by Associate Justice Sixto Marella, Jr. with Associate
Justices Teresita Dy-Liacco Flores and Rodrigo F. Lim, Jr., concurring.

4. Records, pp. 85-104.

5. Records, p. 13.
6. Id. at 20.
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7. Id. at 22.
8. Entered plea of guilty to the lesser crime of Homicide on 17 October 1997.
9. Entered plea of guilty to the lesser crime of Homicide on 29 May 1998.

10. Records, pp. 39-40 and 55-56.

11. Id. at 60-66.
12. Sometimes spelled as "Requilme."
13. Records, pp. 103-104.
14. Id. at 105.
15. Id. at 106.
16. G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
17. Rollo, p. 151.
18. Id. at 18.
19. Id. at 19-20.
20. Id. at 21-22.
21. People v. Escultor, G.R. Nos. 149366-67, 27 May 2004, 429 SCRA 651, 661.
22. People v. Aguila, G.R. No. 171017, 6 December 2006, 510 SCRA 642, 661; Rebucan v.
People, G.R. No. 164545, 20 November 2006, 507 SCRA 332, 347.
23. TSN, 30 April 1999, p. 9.
24. People v. Esperas, 461 Phil. 700, 713 (2003).
25. People v. Agsaoay, Jr., G.R. Nos. 132125-26, 3 June 2004, 430 SCRA 450, 466.
26. People v. Brecinio, G.R. No. 138534, 17 March 2004, 425 SCRA 616, 625.
27. TSN, 7 August 1998, pp. 6-7, 11 December 1998, pp. 11-12.
28. People v. Orpilla, 425 Phil. 419, 428 (2002); People v. Sicad, 439 Phil. 610, 626 (2002).
29. People v. Sanchez, 426 Phil. 19, 31 (2002).
30. People v. Flora, 389 Phil. 601, 611 (2000).
31. TSN, 11 December 1998, p. 4.
32. TSN, 7 August 1998, p. 9.
33 Id.
34 TSN, 11 December 1998, p. 8.

35. Id. at 11.

36. TSN, 30 April 1999, p. 3.
37. TSN, 11 December 1998, p. 4.

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38. TSN, 30 April 1999, p. 6.
39. Id. at 4.
40. TSN, 11 December 1998, p. 8.
41. People v. Montenegro, G.R. No. 157933, 10 August 2004, 436 SCRA 33, 41.
42. People v. Amazan, G.R. Nos. 136251, 138606 & 138607, 16 January 2001, 349 SCRA
218, 234.

43. People v. Tagana, G.R. No. 133027, 4 March 2004, 424 SCRA 620, 642.
44. People v. Botona, G.R. No. 161291, 27 September 2004, 439 SCRA 294, 301.
45. 359 Phil. 95, 112 (1998).
46. TSN, 31 January 1997, p. 8.
47. People v. Tan, 411 Phil. 813, 836-837 (2001).
48. People v. Manes, 362 Phil. 569, 579 (1999).
49. People v. Rivera, 458 Phil. 856, 879 (2003).
50. People v. Cariño, G.R. No. 131117, 15 June 2004, 432 SCRA 57, 84.
51. G.R. No. 144343, 7 July 2004, 433 SCRA 591, 608.
52. 425 Phil. 666, 677-678 (2002).

53. 435 Phil. 417 (2002).

54. Id. at 426-427.
55. An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that
Purpose the Revised Penal Code, as amended, other Special Laws, and for other
Purposes. Took effect on 31 December 1993.
56. People v. Beltran, Jr., G.R. No. 168051, 27 September 2006, 503 SCRA 715, 740.
57. People v. Tubongbanua, G.R. No. 171271, 31 August 2006, 500 SCRA 727, 742.
58. People v. Pascual, G.R. No. 173309, 23 January 2007; People v. Cabinan, G.R. No.
176158, 27 March 2007; People v. De Guzman, G.R. No. 176158, 27 March 2007.
59. People v. Tubongbanua, supra note 57.
60. People v. Dacillo, G.R. No. 149368, 14 April 2004, 427 SCRA 528, 538.
61. People v. Surongon, G.R. No. 173478, 12 July 2007.
62. People v. Bajar, 460 Phil. 683, 700 (2003).
63. People v. Beltran, Jr., supra note 56.

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EN BANC

[G.R. No. L-30116. November 20, 1978.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. FAUSTO

DAMASO, VICTORIANO EUGENIO, alias TURING, ESTANISLAO
GREGORIO alias ISLAO, LORENZO ALVIAR alias ORING AND
BONIFACIO ESPEJO alias MARCIA, defendants, FAUSTO DAMASO,
LORENZO ALVIAR, BONIFACIO ESPEJO AND VICTORIANO EUGENIO ,
defendants-appellants.

[G.R. No. L-30117. November 20, 1978.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . LORENZO

ALVIAR alias ORING , defendant-appellant.

Carlos, Valdez, Ibarra & Caunan Law Offices for appellants.

Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Dominador L.
Quiroz and Solicitor Concepcion T . Agapinan for appellees.

DECISION

PER CURIAM : p

The penalty of death imposed on Fausto Damaso, Victoriano Eugenio, Lorenzo

Alviar and Bonifacio Espejo by the Court of First Instance of Tarlac in its Criminal Case
No. 2253 for "robbery with double homicide" is now before this Court on automatic
review together with a related case No. 2293 "for illegal possession of rearm and
ammunition" involving only the accused, Lorenzo Alviar. cdtech

The Information in Criminal Case No. 2253 charged the accused therein of
"robbery with double homicide" alleged to have been committed as follows:
"That on or about the 21st day of November, 1959, at nighttime, in the
Municipality of Victoria, Province of Tarlac, Philippines, and within the jurisdiction
of this Honorable Court, the above named accused, four of whom are armed with
a scythe and rearms, namely: Fausto Damaso with a ri e, spring eld Cal. 30,
Victoriano Eugenio with a paltik Cal. 12 ga., Estanislao Gregorio with a scythe,
and Lorenzo Alviar with a paltik Cal. 22, confederating, conspiring, helping and
aiding one another, by means of force, violence, threats and intimidation upon the
persons of Donata Rebolledo, Victoriano de la Cruz and Susana Sabado, did then
and there, willfully, unlawfully and feloniously, with intent to gain, take, steal and
carry away with them the following:

PROPERTY OF DONATA REBOLLEDO:

One jacket valued at P25.00

One necklace valued at 50.00
One earring valued at 25.00
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One ring valued at 15.00
One hat valued at 5.00
Three scythes valued at 3.60
A document valued at 2.30
————
Total P125.90

PROPERTY OF VICTORIANO DE LA CRUZ

Cash money in the amount of P15.00

PROPERTY OF SUSANA SABADO:

Cash money in the amount of 15.00

Ten bottles of liquor Bicolana;
Six bottles of Caña Rum;
One dozen Ligo Sardines;
One dozen Eatwell Sardines;
Six packages of Golden Star cigarettes;
three packages of cigarettes (Inyog);
and four packages of cigarettes
(La Ventaja) with a total value of P21.02
Total P36.00
————
Grand Total P176.92

to the damage and prejudice of the said owners in the respective amounts
of P125.90, P15.00 and P36.02, Philippine currency; that the said accused, on the
occasion of the commission of the crime abovementioned, held and brought
Catalina Sabado and Susana Sabado, daughters of the said Donata Rebolledo, to
a sugarcane eld which is a secluded and uninhabited place, at Barrio Bangar,
Victoria, Tarlac, and once there and after tying together the respective forearms of
the said Catalina Sabado and Susana Sabado, in pursuance of their concerted
conspiracy, by means of force and grave abuse of superior strength, the said
accused did then and there, willfully, unlawfully and feloniously, stab the said
Catalina Sabado and Susana Sabado on different parts of their body and cut
their necks with a sharp pointed instrument (scythe), as a result of which the latter
died instantly.

"That in the commission of the crime abovementioned, there concurred the

aggravating circumstances of (1) abuse of superior strength, (2) nighttime, (3)
uninhabited place, (4) by a band, (5) treachery, and (6) disregard of sex." (pp. 116-
117, rollo).

In Criminal Case No. 2293 Lorenzo Alviar was also charged of illegal possession
of firearm and ammunition, viz:
"That on or about November 24, 1959, in the Municipality of Victoria,
Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court,
the above named accused, without authority of law, did then and there, willfully,
unlawfully and feloniously have in his possession and under his control a rearm,
to wit; a paltik revolver caliber 22 with eight (8) rounds of ammunition, without
first obtaining the corresponding license or permit to keep and possess the same."
(pp. 117-118, ibid.)

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The two cases were jointly heard by the trial court. In a joint decision rendered on
December 10, 1968, by then Presiding Judge, Hon. Arturo B. Santos, all the accused
were found guilty as charged. In Criminal Case No. 2253 (robbery with double
homicide) the accused Fausto Damaso, Lorenzo Alviar, Bonifacio Espejo and Victoriano
Eugenio were each sentenced to suffer the "penalty of death, to indemnify the legal
heirs of the victims, Catalina Sabado and Susana Sabado, jointly and severally in the
amount of P12,000.00 for each of the victims, plus the sum of P15.00 which was the
money taken by the accused, and to pay the costs, share and share alike." One of the
accused, Estanislao Gregorio, was no longer included in the sentence because he died
on April 6, 1967 while the cases were still undergoing trial.
In Criminal Case No. 2293, accused Lorenzo Alviar was sentenced "to three years
imprisonment and to pay the costs." 1
The evidence of the prosecution as found by the trial court establish the
following incidents: 2
Donata Rebolledo and her son-in-law, Victoriano de la Cruz were residents of
Barrio Bangar, municipality of Victoria, province of Tarlac. At about 9 o'clock in the
evening of November 21, 1959, Donata and Victoriano heard the barkings of dogs
outside their house. Shortly, two men armed with guns, entered, pointed their weapons
at them, tied up the hands of Victoriano, covered him with a blanket and asked Donata
for the whereabouts of her daughter Catalina Sabado. Stricken by fear, Donata kept
silent and blocked the door leading to her daughter's room but was promptly pushed
aside. Donata was then ordered to open an "aparador" from which the two men took
valuables like jewelry, clothing, documents, and cutting instruments. All the while,
Donata and Victoriano could hear the movements and voices of some three to four
other persons beneath the house. The two men brought Catalina Sabado down from
the house and then asked where they could nd Susana Sabado, Donata's other
daughter who was then in her store located about ve meters away in the same house.
Thereafter, Donata heard the men opening the door to Susana's store. After several
minutes, feeling that the intruders had left, Donata untied the hands of Victoriano and
asked him to go to the store to see if her daughters were there. When the two women
could not be found, Donata sent Victoriano to the barrio lieutenant to report the
incident. Accordingly, Victoriano went to the barrio lieutenant and the two later went to
town to inform the police of the occurrence. LibLex

On the same night, Chief of Police Pedro Valdez with the aid of several policemen
and a handful of civilians went out in search for the Sabado sisters. It was only the
following morning when the two women were found already dead with wounds in
several parts of their bodies. They were found in a sugar plantation belonging to one
Ignacio Fabros, located about one hundred meters from Donata Rebolledo's house.
Dr. Carlos Briones, Municipal Health O cer of Victoria performed the autopsy on
the two bodies and reported that the deaths were caused by profuse hemorrhage due
to a fatal, big, wide, gaping and deep lacerated wound just above the Adam's apple. He
also testi ed in court that the death weapon must have been a sharp instrument with a
pointed tip, like a scythe.
A few days after the incident, Donata Rebolledo singled out the accused Fausto
Damaso from a police line-up as one of the men who went up to her house on that
evening. She and Victoriano had recognized Damaso because of the light coming from
a kerosene lamp placed on a small table near the "aparador." Damaso, however, initially
denied ever having been to Donata's house that night. Later, the PC rounded up four
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other suspects in the persons of co-accused Gregorio, Eugenio, Alviar and Espejo.
As further evidence, the prosecution presented separate extrajudicial
statements, sworn to before Municipal Judge Conrado de Gracia of Paniqui, Tarlac,
wherein all the five accused admitted having participated in the crime.
In his sworn statement marked as Exhibit "J", Fausto Damaso stated that he was
with his co-accused Gregorio, Eugenio, Alviar and Espejo on the night the Sabado
sisters were killed; that he never went into the house of Donata Rebolledo as Eugenio
and Gregorio were the ones who did; that it was Gregorio and Eugenio who actually did
the killing while he, Alviar and Espejo merely stood by; that the victims were stabbed
and their throats cut with a reaping knife (pangapas or lait); that the killing was
motivated by the failure of the older woman (Catalina) to pay for a carabao bought
from Gregorio; and that on that evening, Gregorio, Eugenio, Alviar and Espejo were
carrying caliber .45 pistols while he was unarmed.
In a subsequent statement marked as Exhibit "P", Damaso reiterated his claim
that it was Gregorio who actually stabbed and cut the throats of the victims in the
presence of all the accused; that Catalina was killed ahead of Susana; that Gregorio
killed Susana as she was being held by Eugenio; and that while still in the house, they
were able to get P15 from Susana's store. Contrary to what he confessed in his
previous sworn statements, he admitted that it was he and Eugenio who went up to
Donata Rebolledo's house and not Eugenio and Gregorio. He also changed his theory as
to the motive for the killings, declaring this time that the two women were killed
because the latter had already recognized them. He further stated that on that night, he
was armed with a caliber .22 (paltik) revolver, Eugenio with a 12-gauge paltik, Gregorio
with two reaping knives (lait), Lorenzo with a long firearm and Espejo with two stones.
In this sworn statement, Exhibit "O", Victoriano Eugenio likewise admitted that he
was a party to the commission of the offense; that it was Gregorio who conceived of
the plot to commit the crime; that it was also Gregorio who killed the two women with a
reaping knife; that after Catalina was killed he held Susana by the arms as Gregorio
stabbed her and cut her throat; that Alviar, Damaso and Lorenzo were also with them
that night; that he did not know what motivated Gregorio to kill the victims; that he had
no previous agreement with his co-accused to kill the two women; that he and Damaso
were the ones who entered Donata's house, took P15 from the "aparador," brought
down Catalina and also got Susana from another portion of the house; that he was then
armed with a 12 gauge paltik, Damaso with a caliber .22 paltik revolver, Alviar with a
Spring eld caliber .30 ri e, Gregorio with a reaping knife and Espejo with two stones;
and that he was with the group that night because at about 7 o'clock in the evening,
Gregorio dropped by his house and invited him to Barrio Bangar where the crime was
committed.
In his separate statement (Exhibit "Q"), Estanislao Gregorio narrated that in the
afternoon of November 21, 1959, his four co-accused came and informed him of a plan
to rob the Sabado sisters, to which plan he agreed; that Damaso and Eugenio went up
Donata Rebolledo's house, got P15 in cash and brought out Catalina and Susana by
force; that he stabbed and cut the throats of the victims with all his co-accused
present; that Eugenio held Catalina while Damaso held Susana as he killed them both
with a reaping knife; that the two women were killed because they had recognized
Eugenio and Damaso and might testify against them in court; that during the
commission of the crime, his only weapon was a reaping knife while Alviar was carrying
a caliber .22 paltik revolver, Damaso, a Spring eld caliber .30 ri e, Eugenio, a 12-gauge
single shot paltik and Espejo was unarmed. LLjur

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Exhibit "N" is Bonifacio Espejo's sworn statement. Here he declared that he
happened to be with the group because Damaso and Eugenio invited him to Barrio
Bangar and they dropped by the houses of Alviar and Gregorio before actually
proceeding to the barrio; that they had a previous agreement to commit the crime; that
they planned the same in a lot owned by a certain Don Juan Garcia in Barrio Bangar; that
it was Damaso and Eugenio who entered Donata Rebolledo's house while he, Alviar and
Gregorio were left downstairs to keep watch; that they were able to get P15 from the
house; that it was Gregorio who actually killed the two women; and that Damaso and
Eugenio were armed with a 12-gauge paltik and another long arm the caliber of which
he did not know; that Alviar had a caliber .22 paltik revolver, Gregorio a knife and he had
two big stones.
Substantially similar were the admissions of Lorenzo Alviar in his sworn
statement (Exhibit "R"). He likewise declared that he and his co-accused took P15 from
the house of the victims; that it was Gregorio who stabbed and cut the throats of the
victims with a reaping knife; that the killing was done in a sugarcane plantation between
10:00 and 11:00 o'clock in the evening of November 21, 1959; that Catalina was killed
before Susana; that he was armed with a caliber .22 paltik revolver, Eugenio with a
single shot, 12-gauge paltik, Damaso with a Spring eld caliber .30 ri e and Espejo with
two stones. He claimed, however, that he was only forced and intimidated by his co-
accused to join the group.
At the trial, the ve accused set up the defense of alibi and repudiated their
respective sworn statements alleging that these were obtained from them through
duress, force and intimidation. Instances of the use of third degree methods like
boxing, pouring of "7-up" into the nostrils, stripping of clothes, pricking of the penis,
kicking and slapping of the ears were narrated by the accused on the witness stand, all
of which were not believed by the trial court.
The accused-appellants are here represented by a counsel de o cio, Atty.
Clemente A. Madarang, Jr., who filed an exhaustive brief for the accused.
Taken as a whole, the assigned errors boil down to the question of credibility and
su ciency of the evidence to sustain the conviction of appellants for the special
complex crime of robbery with double homicide. It is argued that (a) there is no
evidence of the alleged robbery; (b) that the homicide was not committed by reason or
on occasion of the robbery; and (c) that the crime was not attended by the aggravating
circumstances of armed band, treachery and uninhabited place. LLjur

There is no merit to appellants' submittal.

1. That robbery was committed is evident from the declaration of
prosecution witness Donata Rebolledo who testi ed that the two men who barged into
her house, one of whom she recognized as Fausto Damaso, ordered her to open her
"aparador" and then they took therefrom the following items with their respective
values a jacket — P25; a necklace — P50; earrings — P25; a ring — P15; a hat — P5;
scythes — P3.60; and documents worth P2.30. 3 Moreover the appellants admitted in
their separate statements that they were able to get P15 from Donata's house. On this
point, We agree with the Solicitor General that it matters not from what part of the
house the accused got the P15. What is important is that the culprits carried away
personal property belonging to another by the use of force, intimidation or violence. 4
2. Counsel points out that because there was a motive, at least on the part of
Gregorio, for the killing of the Sabado sisters, the double homicide could not have been
"committed by reason or on occasion of the robbery" as the law contemplates. He calls
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Our attention to the sworn statement wherein Fausto Damaso declared that Gregorio
killed Catalina and Susana because Catalina bought a carabao from him and did not pay
for it. Harping further on this motive theory, counsel mentions such circumstances as
why the accused speci cally asked for Catalina and Susana upon entering Donata
Rebolledo's house and why Donata and Victoriano were not killed together with the
sisters if the purpose was to remove all opposition to the robbery or to eliminate
witnesses thereto. LexLib

As to Damaso's declaration, it should be noted that Damaso himself, in his

subsequent sworn statement, changed his motive theory and stated that the victims
were killed in order to eliminate witnesses to the crime. This was corroborated by
Gregorio in the latter's own written confession. Even assuming, however, that such a
motive for vengeance existed on the part of Gregorio, it does not necessarily exclude
the fact that he and co-accused also intended, when they went to Donata's house that
night, to rob the family. In a complex crime of robbery with homicide, while an intent to
commit robbery must precede the taking of human life, the fact that the intent of the
culprit was tempered with a desire also to avenge grievances against the person killed
does not prevent the punishment of the accused for the complex crime. 5
3. Counsel for appellants also argues that the trial court erred in its
appreciation of the aggravating circumstances of armed band, treachery and
uninhabited place.
The aggravating circumstance of band exists whenever more than three armed
malefactors act together in the commission of an offense. 6 Counsel concedes that at
least three of the accused-appellants, namely Eugenio, Alviar, and Gregorio, were armed
during the commission of the crime. He doubts, however, whether accused Damaso
carried any weapon and whether the "two stones" carried by accused Espejo fall under
the category of "arms." But even granting that Espejo's stones do not constitute arms,
the prosecution presented the following evidence to show that Damaso was also
armed and, as such, there were more than three of the accused who were armed: (1)
that extrajudicial confession of Damaso himself (Exhibit "P") that he was carrying a
caliber .22 paltik revolver; (2) the sworn statement of accused Eugenio (Exhibit "O") that
Damaso had a caliber .22 paltik revolver; (3) the separate written confessions of Alviar,
Gregorio and Espejo (Exhibits R, Q, and "N") that Damaso had a caliber .30 Spring eld
ri e; and (4) the testimonies of Donata Rebolledo and Victoriano de la Cruz that both
men who entered their house (one of whom they later identi ed as Damaso) were
carrying rearms. It is clear from the above, that Damaso was armed during the night of
the commission of the crime, and it is immaterial what kind of rearm he carried, the
only important thing being that he was armed. In this case, the presence of an armed
band is to be considered as a generic aggravating circumstance under Article 14(6) of
the Revised Penal Code inasmuch as the crime committed was that provided for and
penalized in Article 294, paragraph 1 and not under Article 295, Revised Penal Code
(see People v. Apduhan, Jr., per Justice, now Chief Justice Fred Ruiz Castro, 24 SCRA
798).
Treachery is present if the victim is killed while bound in such a manner as to be
deprived of the opportunity to repel the attack or escape with any possibility of
success. 7 The fact that the bodies of Catalina and Susana were found dead with their
arms tied behind their backs as well as the admission of Gregorio in his confession
(Exhibit "Q") that he killed the sisters while their arms were held by Eugenio and Damaso
lead Us to conclude that the killing of the two women was done under treacherous
circumstances.
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Anent the circumstances of uninhabited place, counsel disclaims its existence by
pointing to the proximity of the sugarcane eld where the victims were killed to the
national highway as well as to certain houses in the barrio. The uninhabitedness of a
place is determined not by the distance of the nearest house to the scene of the crime,
but whether or not in the place of commission, there was reasonable possibility of the
victim receiving some help. 8 Considering that the killing was done during nighttime and
the sugarcane in the eld was tall enough to obstruct the view of neighbors and
passersby, there was no reasonable possibility for the victims to receive any
assistance. That the accused deliberately sought the solitude of the place is clearly
shown by the fact that they brought the victims to the sugarcane eld although they
could have disposed of them right in the house of Donata Rebolledo where they were
found. Thus, in People v. Saguing, the Court considered the crime as having been
committed in an uninhabited place because the killing was done in a secluded place at
the foot of a hill, forested, and uninhabited. 9
The trial court considered separately the three circumstances of armed band,
treachery and uninhabited place where under other situations one may be considered
absorbed or inherent in the other. There is ample justi cation for this. The elements of
each circumstance subsist independently and can be distinctly perceived thereby
revealing a greater degree of perversity on the part of the accused.
4. In the third assignment of error, defense counsel assails the su ciency of
the evidence for the prosecution. He urges that the extrajudicial confessions, having
been repudiated during the trial, are insu cient to sustain the trial court's judgment of
conviction, specially so since no direct evidence was introduced of any conspiracy or of
the involvement of appellants in the crime in question.
Regarding this matter, the following are strongly persuasive. First, the appellants'
separate extrajudicial confessions were subscribed and sworn to before Municipal
Judge Conrado de Gracia of Paniqui, Tarlac. On the witness stand, Judge de Gracia
testi ed as to the authenticity and due execution of the statements. He declared that
before the statements were sworn to before him, he had the appellants' PC escorts
excluded from the room. He then took pains in translating and explaining to the
appellants the contents of their written statements and got their assurance that such
statements were freely and voluntarily made. 1 0 If it were true that appellants were
forced or intimidated into making the confessions, they could have easily manifested
before the judge that they did not voluntarily give the same. Certainly, they could have
then been afforded the necessary protection from any untoward incident that could
happen. Their failure there and then to air any injustice or misdeed committed upon
them belies their stories of maltreatment. Too, there is no credible proof of the alleged
maltreatment that they suffered in the hands of the police or other authorities as a
result of which they executed the confessions. Considering that repudiation of
confessions comes very easily, the same must be taken with a grain of salt. It occurs all
too often that guilty persons, after confession to crime, experience a change of heart
and repudiate their confessions in the hope of escaping liability.
Secondly, there was the reenactment of the robbery and the killings. The
movements reconstructed by the appellants conform substantially with the details set
forth in their individual sworn statements. The reenactment was done in the presence
of people, including a photographer who had no connection with the police or the
prosecution. LLphil

Fiscal Magin Tañedo who was present during the reenactment testi ed that the
entire proceeding was spontaneous and free from coercion. On several occasions,
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appellants, even corrected themselves in certain details. Nobody directed the whole
show except the appellants themselves. 1 1
Fiscal Tañedo's testimony was corroborated by photographer Manuel Gamalinda
who also declared that there was no dictation, violence, force or intimidation employed
upon the appellants during the reenactment. 1 2 Gamalinda also testi ed as to the
authenticity of the pictures he took during the reenactment, which the prosecution also
submitted as evidence. 1 3
Again, concerning the confessions, other circumstances are equally signi cant.
Some of the statements made, speci cally the one of accused Alviar, were exculpatory
in nature and would not have been included had the confessant been coerced into
making his confession. Others cite plausible facts and details which only actual
participants in the crime could have known.
Also, partial corroboration of appellants' statements are found in the testimonies
of Donata Rebolledo and Victoriano de la Cruz, more particularly, as to the robbery. As
such, the confessions, coupled by evidence of the corpus delicti, the human remains of
Catalina and Susana Sabado, are su cient bases for the trial court's declaration of
guilt.
5. With regards to the defense of alibi, We nd no justi able reason for
discarding the ndings of the trial court on this matter. In People v. Berdida, et al., this
Court held that the defense of alibi is an issue of fact that hinges on credibility, which
depends much on the credibility of the witnesses who seek to establish it. In this
respect the relative weight which the trial judge assigns to the testimony of the
witnesses must, unless patently and clearly inconsistent with the evidence on record,
be accepted. The defense of alibi is worthless in the face of positive identi cation by
prosecution witnesses, pointing to the accused as participants in the crime. (17 SCRA
520, citing People v. Tansiangco, L-19448, February 28, 1964; People v. Riveral, L-
14077, March 31, 1964)
6. As to conspiracy, the trial court's inference as to the existence of the same
is well-founded and is amply discussed in its decision. Said His Honor:
"From the simultaneous and cooperative acts of the accused, the Court
nds and so holds that there was conspiracy among them. For conspiracy to
exist, direct proof is not essential. The same may be inferred from the acts of the
conspirators in the commission of the offense. It is not essential that each
conspirator takes part in every act or that he should know the exact part to be
performed by the others in the execution of the conspiracy. Conspiracy merely
implies concert of design and does not require participation in every detail of
execution. Neither is it necessary to show any previous plan or that the parties
should actually come together and agree in express terms in pursuing a common
design. It is su cient if it is proved that the acts of the conspirators were in fact
connected and cooperative in accomplishing the unlawful object, thereby
indicating a closeness of personal association and concurrence of sentiments.
"In the case of the accused herein, they got together and planned the
criminal act shortly before its execution; they proceeded together to the house of
the victims and, while Damaso and Eugenio went upstairs, the other accused
stayed under the house as lookout; once inside the house, the two asked and
demanded for the victims, forcibly dragged them downstairs, handed them to
those waiting under the house and, together as a group, they brought the victims
to the sugarcane eld and mercilessly stabbed them to death. Clearly, there was a
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concert of acts among the accused aimed at one common design, and each act
was connected to and cooperative with the others."

The basic rule is that when conspiracy is established, like in the present case, the
act of one conspirator is imputable to the others and the criminal liability of each
participant is the same as those of the others. LibLex

7. On the matter of accused Lorenzo Alviar's conviction for illegal possession

of rearms in Criminal Case No. 2293, two errors are assigned. First, that the trial court
had no jurisdiction over the case because the same having been previously led before
the Justice of the Peace Court of Victoria, Tarlac, which also acquired jurisdiction over
the person of the accused, the latter court acquired jurisdiction to the exclusion of all
other courts.
This is untenable. That the Justice of the Peace Court has concurrent jurisdiction
with the Court of First Instance in this case is not questioned. It, however, appears from
the order of the justice of the Peace Court forwarding the records of the case to the
Court of First Instance 1 4 that the case was brought before the former court merely for
purposes of a preliminary investigation. Where a Justice of the Peace acquires
jurisdiction for the purpose of preliminary investigation and not for trial on the merits,
such court does not necessarily acquire exclusive jurisdiction to try the case on the
merits. 1 5
In the second assigned error, counsel attacks the imsiness of the evidence for
the prosecution. He questions the su ciency of a document (Exhibit "B"), purportedly a
receipt issued to Alviar upon the con scation from him of the alleged rearm. It is
argued that from the manner the receipt is worded as well as from the fact that it is
thumbmarked by Alviar and not signed by the person con scating, it appears to be a
confession rather than a receipt.
The controversial receipt, however, is not the only evidence presented by the
prosecution. Sgt. Melencio Fiesta of the Philippine Constabulary also declared on the
witness stand that Alviar verbally confessed to him his (Alviar's) possession of a caliber
.22 paltik revolver. 1 6 He further stated that he properly translated from English to
Ilocano the contents of the receipt before Alviar a xed his thumbmark on the same. 1 7
Whether Exhibit "B" is taken as a receipt or as a confession, it has its own weight as an
evidence against appellant Alviar.
Still on the illegal possession of rearm, the prosecution also presented as
evidence Exhibit "C" properly sworn to before Judge Conrado de Gracia, wherein Alviar
confessed that he did own and possess a caliber .22 paltik which he carried on the
night the robbery and killings were committed. The voluntariness of this confession has
not been disproved.
8. In conclusion, the crime committed by appellants in Criminal Case No.
2253 is robbery with homicide de ned in Article 294, paragraph 1, Revised Penal Code,
to wit:
"Robbery with violence against or intimidation of persons — Penalties —
Any person guilty of robbery with the use of violence against or intimidation of
any person shall suffer:
"1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed.

"xxx xxx xxx"

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The penalty is to be imposed in its maximum period by reason of the presence of
three aggravating circumstances found by the trial court, to wit: that the robbery was
committed by a band, 1 8 with treachery, 1 9 and in an uninhabited place. 2 0 There is
likewise the additional aggravating circumstance that the robbery was committed in
the dwelling of the victim, Donata Rebolledo which although not alleged in the
Information is however established by the evidence.

IN VIEW OF THE FOREGOING CONSIDERATIONS, We hereby a rm in toto the

decision of the trial court in the two cases. cdphil

Without pronouncement as to costs at this instance.

SO ORDERED.
Castro, C .J ., Teehankee, Barredo, Makasiar, Antonio, Muñoz Palma, Concepcion
Jr., Santos, Fernandez, and Guerrero, JJ ., concur.
Fernando and Aquino, JJ ., took no part.

Footnotes
1. see pp. 130-131, rollo.
2. see pp. 118-121, ibid.
3. tsn., October 11, 1962, p. 5.

4. Art. 293, Revised Penal Code.

5. US v. Vilorente and Bislig, 30 Phil. 59.
6. Art. 14, par. 6, Revised Penal Code.
7. People v. Madrid, 88 Phil. 1; People v. Bakang, et al., 26 SCRA 840; People v. Mongado, et
al., 28 SCRA 642; People v. Lunar, 45 SCRA 119.
8. People v. Bangug, et al., 52 Phil. 87.
9. 30 SCRA 834.

10. tsn., July 29, 1963, pp. 69-83.

11. tsn., November 15, 1963, p. 72.
12. tsn., April 4, 1963.
13. tsn., April 4, 1963, pp. 245-246 and 262.
14. p. 20, rollo, Criminal Case No. 2293.

15. Neñaria, et al. v. Veluz, 91 Phil. 473.

16. tsn., October 4, 1963, p. 33.
17. tsn., October 4, 1963, p. 21.
18. Article 14, par. 6, Revised Penal Code.
19. ibid., par. 16, ibid.
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20. ibid., par. 6, ibid.

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FIRST DIVISION

[G.R. No. L-2390. April 24, 1950.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . PEDRO

BALDERA, MIGUEL BLAY, JOSE DE LA CRUZ, and FOUR OTHERS ,
defendants. PEDRO BALDERA , appellant.

Augusto Francisco for appellant.

Solicitor General Felix Bautista Angelo and Solicitor Florencio Villamor for
appellee.

SYLLABUS

1. CRIMINAL LAW; ROBBERY WITH HOMICIDE AND SERIOUS AND LESS

SERIOUS PHYSICAL INJURIES; EVIDENCE; IDENTITY OF ACCUSED. — The facts proved
in this case show that the appellant has been satisfactorily identi ed as one of the
authors of the crime.

DECISION

REYES , J : p

We are called upon to review the sentence of death passed upon the appellant
Pedro Baldera, who was found guilty of robbery in band with homicide and serious and
less serious physical injuries by the Court of First Instance of Batangas.

The evidence shows that at about 4 a. m. on December 23, 1947, a Casa Manila
bus loaded with passengers left Batangas, Batangas, bound for Manila. On the highway
in barrio Calansayan, municipality of San Jose, same province, it was held up by a group
of ve or six armed men. One of these, later identi ed as herein appellant Pedro
Baldera, who was then armed with a .45 caliber pistol, red a shot, and this was
followed by a hail of bullets coming from different directions. As a result, several
passengers, among them Jose Cabrera, Jose Pastor and Francisco Mendoza, were
wounded. After the ring had ceased, appellant got on the bus and, threatening the
passengers with his gun, took P90 from Jose Pastor and P34 from Ponciana Villena.
Another passenger named Francisco Mendoza was also relieved of his P3. Appellant
then alighted and ordered the bus to proceed, whereupon the driver headed for the
municipal building of San Jose and there reported the incident to the authorities. The
wounded were taken to the hospital, where Jose Cabrera died from his wounds on the
following day. Jose Pastor, who was wounded in the left leg, was cured in two months,
while Francisco Mendoza's gunshot wound in the right shoulder healed in 15 days.
For the above crime four persons were prosecuted and tried under an
information charging "robo en cuadrilla con homicidio y lesiones graves y lesiones
menos graves." The case was dismissed as to two of the accused due to insu ciency
of evidence. But the other two, Pedro Baldera and Miguel Blay, were, after trial, found
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guilty as charged and sentenced, the rst to capital punishment, and the second to life
imprisonment, both to pay the corresponding indemnity and proportionate costs.
Only the case against Pedro Baldera is now before us. There is no dispute as to
the perpetration of the crime. The only question is as to the identi cation of this
appellant as one of the authors thereof. On this point the evidence for the prosecution
shows that shortly after the commission of this crime, appellant was arrested in the
municipality of Batangas in connection with the theft of a radio, and as his features
tallied with the personal description of one of the highway men given to the chief of
police by some of the passengers of the held-up bus, he was also investigated in
connection with the hold-up, and he then made a confession, which was reduced to
writing and later subscribed by him before the justice of the peace, admitting his
participation in the crime as the one who, armed with a pistol, boarded the bus and
through intimidation relieved Ponciana Villena of her money.
At the trial, Ponciana also identi ed appellant as the one who relieved her of her
money at gunpoint, saying that she had a good look at his face for she was watching
him closely for fear that he might re at her. She also declared that when she was sent
for by the chief of police to identify appellant, the latter approached her as she came
into the o ce of said o cer and asked her forgiveness. Two other passengers of the
bus declared at the trial that appellant resembles the one who stopped the bus and
robbed its passengers.
Testifying in his own defense, appellant denies participation in the crime charged,
declaring that he passed the night in question in a house of prostitution in Batangas,
where he was employed by the prostitutes for drawing water. But this alibi is without
corroboration and can not stand up against the clear and positive testimony of
Ponciana Villena, who has not been shown to have any motive for falsely testifying
against him.
Counsel de o cio impugns the admissibility of appellant's confession on the
ground that the same was made on a promise to render him protection from his co-
accused and also to utilize him as a government witness. But appellant himself denied
that such a promise was ever made and the record shows that, when the confession
was offered in evidence, it was objected to on the sole ground that "it was taken
through force and intimidation," which, however, was not proved. Moreover, this court
has already held that "where one of several co-defendants turns state's evidence on a
promise of immunity *** but later retracts and fails to keep his part of the agreement,
his confession made under such promise may then be used against him." (People vs.
Panaligan and Andulan, 43 Phil., 131.) In any event, even without the said confession, we
nd that appellant's participation in the crime herein charged has been clearly and
satisfactorily proved.
Counsel also contends that the lower court erred in holding that the crime
committed is robbery in band, alleging that there was no su cient proof that the
perpetrators thereof numbered more than three armed men. The fact, however, that
there were more than three armed men in the group that held up the bus appears in
appellant's own confession and is also established by the uncontradicted testimony of
one of the government witnesses. And the point is really not material because in the
crime of robbery with homicide it is not essential that the robbery be in band, although
that circumstance may be taken into account as an aggravation in the imposition of the
penalty. And even if it be not taken into account as such in this case, there would still
remain the other aggravating circumstance that the robbery was perpetrated by
attacking a vehicle (art. 296, R. P. C.), which is not offset by any mitigating
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circumstance.
The lower court did, however, err in appreciating against the accused the
circumstance of recidivism by reason of his previous conviction for theft, it appearing
that that crime was committed on or about December 30, 1947 (Exhibit E) while the
offense now charged took place seven days before that date.
In conclusion, we nd appellant guilty of the crime of robbery with homicide and
serious and less serious physical injuries with two aggravating circumstances. But
there being no su cient vote to impose the extreme penalty, appellant can be
sentenced to life imprisonment only.
Wherefore, reducing appellant's sentence to life imprisonment but increasing the
indemnity to be paid by him to the heirs of the deceased Jose Cabrera to P6,000, the
judgment below as so modified is affirmed, with costs against the appellant.
Moran, C. J., Ozaeta, Pablo, Bengzon, Tuason, and Montemayor, JJ., concur.
Judgment modified.

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EN BANC

[G.R. No. 39913. December 19, 1933.]

THE PEOPLE OF THE PHILIPPINE ISLANDS , plaintiff-appellee, vs .

RICARDO MELENDREZ Y NIETO ET AL. , defendants. RICARDO
MELENDREZ Y NIETO , appellant.

Consorcio Gallego for appellant.

Solicitor-General Hilado for appellee.

SYLLABUS

1. ROBBERY; MITIGATING CIRCUMSTANCES; LACK OF INSTRUCTION; PLEA OF

GUILTY. — Aside from the fact that this court has repeatedly held in its various
decisions that in crimes of robbery the mitigating circumstance of lack of instruction
should not be taken into consideration, the records of the case do not afford any basis
on which to judge the degree of instruction of the appellant inasmuch as no evidence
was taken relative thereto, he having pleaded guilty. However, the fact that he had
pleaded guilty upon arraignment should be taken into consideration as a mitigating
circumstance in his favor.
2. ID.; RECIDIVISM. — The aggravating circumstance of recidivism should be
taken into account. (People vs. Aguinaldo, 47 Phil., 728) This aggravating circumstance
should be taken into consideration in imposing the principal penalty in its
corresponding degree, notwithstanding the fact that the defendant, by reason of such
recidivism, is also sentenced to an additional penalty as a habitual delinquent.

DECISION

AVANCEÑA , C.J : p

The text of the information led against Ricardo Melendrez y Nieto and Elias
Martinez in this case, reads as follows:

"That on or about the 15th day of June, 1933, in the municipality of Pasay,
Province of Rizal, Philippine Islands, within two and one- half (2½) miles from the
limits of the City of Manila and within the jurisdiction of this court, the said
accused conspiring together and helping each other wilfully, unlawfully and
feloniously forcibly broke open the door of the store located at No. 85 Cementina,
Pasay, an inhabited house belonging to and occupied by Tin Bun Boc, and once
inside the said store, with intent of gain and without the consent of the owner
thereof, took, stole and carried away therefrom the following personal properties
of the said Tin Bun Boc:
Money amounting to P30.26
One (1) Elgin watch, gold plated and a gold-filled chain,
valued at 25.00
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One (1) Chinese ring, signet solid gold, valued at 13.50
One (1) buntal hat, valued at 4.50
Nine (9) small packages of "Camel" cigarettes 1.35
Nine (9) small packages of "Chesterfield" cigarettes 1.26
Three (3) cans of Milkmaid, valued at .81
_____
Total 76.68
to the damage and prejudice of the said Tin Bun Boc in the total sum of seventy-six
pesos and sixty-eight centavos (P76.68), Philippine currency.
"That the accused Ricardo Melendrez y Nieto is a habitual delinquent, he
having been previously convicted by nal judgment of competent courts twice of
the crime of theft and once of the crime of estafa and having been last convicted
of the crime of estafa on September 3, 1932."
On the date of the trial of this case, Elias Martinez had not yet been apprehended,
for which reason only the other defendant Ricardo Melendrez y Nieto, who pleaded
guilty to the charge, was arraigned. Whereupon, the court found him guilty of the crime
charged in the information and sentenced him to eight years and one day of prision
mayor, and to serve an additional penalty of six years and one day of prision mayor for
being a habitual delinquent. From this judgment Ricardo Melendrez y Nieto appealed.
In this instance, counsel for the appellant contends that lack of instruction on the
part of the appellant should be considered as a mitigating circumstance in the
commission of the crime. However, aside from the fact that this court has repeatedly
held in various decisions that lack of instruction cannot be considered as a mitigating
circumstance in crimes of robbery, the records of the case do not afford any basis on
which to judge the degree of instruction of the appellant inasmuch as no evidence was
taken relative thereto, he having pleaded guilty.
However, the fact that the appellant pleaded guilty upon arraignment is a
mitigating circumstance which should be considered in his favor.
On the other hand, the scal contends that the aggravating circumstance of
recidivism should be taken into account against the appellant. This claim of the scal is
in accordance with the judgment rendered by this court in banc in the case of People
vs. Aguinaldo (47 Phil., 728) while the old Penal Code was in force. But the enforcement
of the Revised Penal Code has resulted in a difference of opinion regarding this point on
the part of the members of this court. For this reason, after reviewing all the decisions
affecting this matter, rendered by this court both in banc and in division, it is now held
that the aggravating circumstance of recidivism should be taken into account in
imposing the principal penalty in its corresponding degree, notwithstanding the fact
that the defendant is also sentenced to suffer an additional penalty as a habitual
delinquent.
The facts alleged in the information constitute the crime of robbery committed
without the use of arms in an inhabited house, the value of the articles taken being less
than P250. In accordance with article 299 of the Revised Penal Code, the penalty
prescribed for said crime is prision correccional in its medium degree. Inasmuch as
there is a concurrence therein of one mitigating and one aggravating circumstance, this
penalty should be imposed in its medium degree.
Wherefore, it being understood that the principal penalty imposed upon the
appellant is two years, eleven months and eleven days, the judgment appealed from is
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hereby affirmed, in all other respects with costs. So ordered.
Street, Malcolm, Villa-Real, Hull, Vickers, Imperial, Butte, and Diaz, JJ., concur.

Separate Opinion s
ABAD SANTOS , J., concurring in part and dissenting in part:

I can not give my assent to the proposition that in the imposition of the penalty
prescribed by law for the crime committed by the appellant, the aggravating
circumstance of recidivism should be taken into consideration. The appellant is a
habitual delinquent, and under our law and upon the facts of this particular case,
recidivism is an inherent elements of habitual delinquency.
Article 14, paragraph 9, of the Revised Penal Code, defines a recidivist as follows:
"A recidivist is one who, at the time of his trial for one crime, shall have
been previously convicted by nal judgment of another crime embraced in the
same title of this Code."
And article 62, paragraph 5 (c), of the same Code, de nes a habitual delinquent
as follows:
"For the purposes of this article, a person shall be deemed to be habitual
delinquent, if within a period of ten years from the date of his release or last
conviction of the crimes of robo, hurto, estafa, or falsi cacion, he is found guilty
of any of said crimes a third time or oftener."
It seems clear from the provisions of law above quoted that if, within a period of
ten years from the date of his release or last conviction of the crime of robo, hurto,
estafa, or falsificacion, a person be found guilty of the same crime for the second time,
he would be a recidivist; and if he be found guilty for the third time or oftener, he would
be deemed a habitual delinquent. The law determines the effect to be given to a second
conviction, and it also determines the effect of a third, fourth, and fth conviction. In
imposing the penalty prescribed for the third, fourth or fth conviction of any of the
crimes mentioned, it seems to me beyond the purpose of the law to take again into
consideration the legal effect of the previous, second conviction.
Except as above stated, I agree with the decision of the court.

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